ILLINOIS POLLUTION CONTROL BOARD
April 18, 2002
SALINE COUNTY LANDFILL, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
COUNTY OF SALINE,
Intervenor.
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PCB 02-108
(Permit Appeal - Land)
ORDER OF THE BOARD (by C.A. Manning):
Petitioner Saline County Landfill, Inc. (SCLI) owns and operates a landfill in
Harrisburg, Saline County. The landfill, which receives municipal solid waste, is known as
the Saline County Landfill. In November 1996, SCLI received siting approval from the Saline
County Board (County Board) to expand the landfill. To obtain a development permit for the
landfill expansion, SCLI submitted application materials to the Illinois Environmental
Protection Agency (Agency) from October 1999 to December 2001.
On January 4, 2002, the Agency denied SCLI’s permit application on one ground. The
ground for denial was that SCLI’s proposed waste disposal area, also described by the Agency
as the waste “footprint,” for the lateral expansion had changed from the waste footprint that
SCLI had proposed before the County Board in 1996. The difference in the waste footprint
results from eliminating an interior berm that would have been between the existing landfill
and the lateral expansion. The interior berm was part of the design that SCLI presented to the
County Board during the 1996 siting process, but SCLI removed the berm from the design
during the permit application process before the Agency. Because the County Board had not
approved this change, the Agency concluded that SCLI lacked the necessary local siting
approval.
SCLI appealed the Agency’s permit denial to the Board and moved the Board to grant
SCLI summary judgment. The Agency asserts that summary judgment is inappropriate
because SCLI and the Agency dispute material facts. In support of the Agency’s permit
denial, the County of Saline (County) filed a motion to intervene and a counter-motion for
summary judgment.
2
For the reasons provided below, the Board grants the County party status as an
intervenor, denies SCLI’s motion for summary judgment, and denies the County’s counter-
motion for summary judgment. In this order, the Board first addresses several procedural
matters, including the County’s motion to intervene. Second, the Board sets forth its findings
of fact. Third, the Board discusses the standards for summary judgment and the statutory
framework of this case. Fourth, the Board discusses the issues involved in SCLI’s motion for
summary judgment and rules on that motion. Lastly, the Board sends the parties to hearing on
April 23, 2002, with directions to the hearing officer on the scope of the hearing. The Board’s
findings today greatly narrow the dispute among the parties and the hearing will be limited
accordingly.
PROCEDURAL MATTERS
Procedural Background
On February 4, 2002, SCLI filed a petition for review of the Agency’s January 4, 2002
denial of SCLI’s permit application.
1 On February 7, 2002, the Board accepted this matter for
hearing and granted SCLI’s motion for expedited review.
2
Hearing Officer Steven C. Langhoff scheduled a hearing for April 16, 2002. On
March 14, 2002, SCLI filed a motion for summary judgment.
3 On April 2, 2002, SCLI, with
the hearing officer’s authorization, filed the Agency’s answers to SCLI’s requests to admit.
4
On April 4, 2002, the Agency filed a response to SCLI’s motion for summary judgment,
5
along with an agreed motion for leave to file the response
instanter
. The Board grants the
Agency’s motion. The Agency also filed the 6,231 page administrative record on April 4,
2002, with a motion for leave to file the record
instanter
. In its motion, the Agency represents
that the record was hand-delivered to SCLI on March 28, 2002, and to the County on April 1,
2002. The Board grants the Agency’s motion.
6
1 SCLI’s petition for review is cited as “SCLI Pet. Rev. at _.”
2 SCLI’s motion for expedited review is cited as “ SCLI Mot. Exp. at _.”
3 SCLI’s motion for summary judgment is cited as “SCLI Mot. Summ. J. at _.”
4 The Agency’s answers to SCLI’s requests to admit are cited as “Agency Ans. at _.”
5 The Agency’s response to SCLI’s motion for summary judgment is cited as “Agency Resp.
at _.”
6 The Agency’s record is cited as “R. at _.”
3
On March 25, 2002, the Saline County State’s Attorney filed a motion to intervene on
behalf of the County.
7 On April 1, 2002, SCLI filed a response opposing the County’s motion
to intervene.
8 On April 1, 2002, the County filed a motion to strike SCLI’s motion for
summary judgment.
9 On April 3, 2002, the hearing officer notified SCLI, the Agency, and the
County that the hearing scheduled for April 16, 2002, would be continued on the record until
April 23, 2002, to allow time for the Board’s rulings today.
On April 5, 2002, the County filed a response to SCLI’s motion for summary judgment
and a counter-motion for summary judgment.
10 On April 5, 2002, SCLI filed a motion to
strike the County’s counter-motion for summary judgment.
11 On April 8, 2002, the County
filed a response to SCLI’s motion to strike the County’s counter-motion for summary
judgment.
On April 10, 2002, the hearing officer issued an order accepting a stipulation from the
parties regarding the conduct of depositions on April 10-12, 2002. The County was allowed to
attend the depositions, make legal objections, and question witnesses. The hearing officer
order also provided for an April 16, 2002 telephone conference to exchange witness lists and to
provide notice of any evidence to be introduced at hearing that is not part of the Agency
record. A hearing originally scheduled for April 16, 2002, was continued on the record until
April 23, 2002. The hearing was contingent upon the Board’s ruling on the issue of summary
judgment. For the reasons set forth below, the Board will proceed with the hearing on
April 23, 2002.
Pending Procedural Motions
Below, the Board rules on three procedural motions: (1) the County’s motion to
intervene; (2) the County’s motion to strike SCLI’s motion for summary judgment; and (3)
SCLI’s motion to strike the County’s counter-motion for summary judgment.
County’s Motion to Intervene
7 The County’s motion to intervene is cited as “Cty Mot. Interv. at _.”
8 SCLI’s response to the County’s motion to intervene is cited as “SCLI Resp. Interv. at _.”
9 The County’s motion to strike SCLI’s motion for summary judgment is cited as “Cty Mot.
Str. at _.”
10 The County’s response to SCLI’s motion for summary judgment is cited as “Cty Resp.
Summ. J. at _.”
11 SCLI’s motion to strike the County’s counter-motion for summary judgment is cited as
“SCLI Mot. Str. at _.”
4
On March 25, 2002, the Saline County State’s Attorney filed a motion to intervene on
behalf of the County in this permit appeal. The County supports the Agency’s permit denial,
noting that the Agency’s sole ground for permit denial is the inconsistency between SCLI’s
permit application and the County Board’s 1996 siting approval. Cty Mot. Interv. at 1. The
County further notes that its State’s Attorney “is a constitutional officer, is the chief legal
officer for Saline County, and is clothed with the duty and authority to represent the interests
of the people of Saline County to ensure a healthful environment within Saline County.”
Id.
The County asserts that its State’s Attorney represents the public interest of the County and “in
particular the interest of Saline County in assuring its siting approvals and authorizations are
complied with.”
Id.
at 1-2.
In May 2001, the Agency directed a letter to the County Board requesting a statement
from the County Board on whether “the designs proposed in the pending [SCLI] permit
application are consistent with the local siting approval granted on November 21, 1996.” R. at
0030-31. The Agency letter states:
[T]he [Agency] does not interpret and does not intend to make a determination
regarding the constraints placed on the siting approval by the Saline County
Board. It is up to the Saline County Board to determine whether re-siting is
needed. R. at 0030.
The Agency admits that, in denying the permit, it relied on a September 2001 resolution of the
County Board stating that SCLI must file a new siting application because of design changes
since the 1996 siting approval. Agency Ans. at 2.
In Pioneer Processing, Inc. v. IEPA, 102 Ill. 2d 119, 464 N.E.2d 238 (1984), the
Illinois Supreme Court held that the Attorney General could seek appellate review of a Board
permit decision even though the Attorney General was not a party to the Board proceeding.
The court stated that the Attorney General, “as chief legal officer of this State, . . . has the
duty and authority to represent the interests of the People of the State to insure a healthful
environment.” Relying on Pioneer Processing, the Third District Appellate Court in Land and
Lakes Co. v. PCB, 245 Ill. App. 3d 631, 616 N.E.2d 349 (3d Dist. 1993), affirmed the
Board’s allowance of a State’s Attorney’s intervention in a siting appeal, holding that the
State’s Attorney’s “rights and duties are analogous to those of the Attorney General.”
The Board finds this case law controlling and further finds, especially given the
Agency’s reliance on the County Board’s 2001 resolution, that the citizens of the County may
be materially prejudiced absent the County’s intervention.
See
35 Ill. Adm. Code
101.402(d)(2). The decision cited by SCLI (SCLI Resp. Interv. at 1-2) to oppose the County’s
intervention (Riverdale Recycling, Inc. v. IEPA, PCB 00-228 (Aug. 10, 2000)) is
distinguishable. There the Board denied a motion to intervene of a municipality, not a State’s
Attorney. Further, that case was decided prior to the Board’s new procedural rules which
changed the Board’s prior rule and policy on third party intervention (
see
35 Ill. Adm. Code
101.402).
5
The Board therefore grants the County’s motion to intervene. The County has all the
rights of an original party to this proceeding, except that the County is bound by Board and
hearing officer orders already issued and evidence already admitted.
See
35 Ill. Adm. Code
101.402(e). The County does not control the statutory deadline for the Board to decide this
case.
Id.
County’s Motion to Strike SCLI’s Motion for Summary Judgment
On April 1, 2002, the County moved the Board to strike SCLI’s motion for summary
judgment as untimely. Cty Mot. Str. at 2. Section 101.516(a) of the Board’s procedural rules
provides that a party may file a motion for summary judgment “no fewer than 30 days prior to
the regularly scheduled Board meeting before the noticed hearing date.” 35 Ill. Adm. Code
101.516(a).
The Board’s February 7, 2002 order granted SCLI’s motion for expedited review,
noting that SCLI had represented that it intended to file a motion for summary judgment.
SCLI Pet. Rev. at 3. SCLI mailed its motion for summary judgment on March 13, 2002,
stating that it was timely under 35 Ill. Adm. Code 101.516 because “[a]s of the filing by mail
of this motion, there is no noticed hearing date.” SCLI Mot. Summ. J. at 1. SCLI had not yet
received the hearing officer’s notice of the April 16, 2002 hearing, which the hearing officer
issued on March 12, 2001. It appears then that SCLI’s motion and the hearing officer’s notice
crossed each other in the mail.
The Board denies the County’s motion to strike SCLI’s motion for summary judgment.
The Agency, the only other party at the time SCLI filed the motion for summary judgment,
had the 14-day period to respond to SCLI’s motion, as provided in the Board’s procedural
rules.
See
35 Ill. Adm. Code 101.516(a). In addition, though the County had no party status
at the time, the hearing officer afforded the County an opportunity, which the County used, to
file a response to SCLI’s motion for summary judgment pending the Board’s ruling on the
County’s motion to intervene. Moreover, the April 16 hearing will be continued on the record
until April 23, 2002.
SCLI’s Motion to Strike the County’s Counter-Motion for Summary Judgment
On April 5, 2002, the County filed a response to SCLI’s motion for summary
judgment, along with a counter-motion for summary judgment. On the same day, SCLI moved
the Board to strike the County’s counter-motion for summary judgment. SCLI asks the Board
only to strike the County’s request for relief (
i.e.
, summary judgment affirming the Agency’s
permit denial), not the County’s response to SCLI’s summary judgment request. SCLI Mot.
Str. at 1-2.
The hearing officer contacted the Agency, SCLI, and the County on March 27, 2002,
to set a filing schedule, which was memorialized in the hearing officer order of March 28,
6
2002. The hearing officer order set a deadline for receipt of responses to SCLI’s motion for
summary judgment. It also provided that the Board would not entertain any reply from SCLI
or any counter-motion for summary judgment from the only other party at the time, the
Agency. In addition, the hearing officer allowed the County, as a potential intervenor, to file a
response to SCLI’s motion for summary judgment pending the Board’s decision on
intervention.
The hearing officer’s order properly reflects that the Board granted SCLI’s motion for
expedited consideration and that the Board anticipated ruling on SCLI’s motion for summary
judgment today. The County became a party to this case only today. In his discretion, the
hearing officer gave the County an opportunity to file a response before it became a party,
pending the Board’s ruling on the motion to intervene. The hearing officer order only allowed
the County to file a response to SCLI’s motion for summary judgment.
Like any intervenor, the County must take the case as it finds it. The hearing officer
order struck the proper balance between allowing for a full briefing of the issues and allowing
for expedited Board review. To allow the County to then file a counter-motion for summary
judgment in favor of the Agency, with no opportunity for response and even though the
Agency could not file such a counter-motion, would frustrate the purpose of the hearing officer
order. The Board grants SCLI’s motion to strike, which does not include the County’s
response to SCLI’s summary judgment motion.
FACTS
The following facts are undisputed unless stated otherwise.
Siting Approval to Expand the Existing Landfill
SCLI is the owner and operator of a municipal solid waste landfill in Harrisburg, Saline
County. The landfill is known as the Saline County Landfill. R. at 374. On November 21,
1996, the County Board granted SCLI siting approval to expand the landfill. SCLI Mot.
Summ. J. at 2. The County Board’s siting approval was memorialized in a one-page resolution
and a nine-page set of fact findings. The County Board’s 1996 resolution and findings of fact
are referred to collectively as the siting approval. R. at 4248-57. The siting approval states:
[T]he Saline County Board grants the Application for Siting Approval filed by
[SCLI] and approves the site location set forth in the Application . . . . R. at
4248.
* * *
An official transcript of the [October 16, 2001 public] hearing [before the
County Board on SCLI’s siting application] was made and filed for the record
and is incorporated herein by reference as if fully set forth in these Findings of
Fact. R. at 4251.
* * *
7
SCLI offered into evidence, and the [County] Board received into evidence,
exhibits incorporated as part of the transcript and record of proceedings, which
exhibits are incorporated herein by reference as if fully set forth in these
Findings of Fact.
Id.
* * *
[T]he [County] Board finds that the Application for Siting Approval filed by
SCLI for a sanitary landfill that (A) is approximately 53.5 acres in size which
includes a vertical increase over approximately 21 acres of the existing facility
and approximately 32.5 acres for the new area to the north of the existing
facility, and (B) is located within an approximately 166 acre site boundary,
contains sufficient evidence to demonstrate compliance with the siting criteria
set forth in the [Environmental Protection] Act and therefore APPROVES the
Application on the property described in the Application. R. at 4256-57.
In discussing the nine siting criteria of Section 39.2 of the Environmental Protection
Act (Act) (415 ILCS 5/39.2 (2000)), the County Board states in its findings of fact that its
determination that SCLI met each criterion was based on “careful consideration of the record
from public hearing, including testimony, exhibits, and the Application itself.” R. at 4256.
The County Board approved an approximately 53.5-acre expansion of the landfill
within the approximately 166-acre site boundary. The 166-acre site boundary would
encompass both the existing landfill (a square-shaped parcel) and the proposed expansion (a
polygon-shaped parcel). SCLI Mot. Summ. J. at 2. The proposed 53.5-acre expansion had
two components: (1) a vertical expansion over approximately 21 acres of the existing landfill;
and (2) a lateral expansion of approximately 32.5 acres to the north of the existing landfill.
Id
.
The parties disagree over whether the County Board approved a specific waste footprint
for the lateral expansion. SCLI argues that all location restrictions are expressly set forth in
the County Board’s findings of fact,
i.e.
, the lateral expansion need be no bigger than 32.5
acres and entirely within the 166-acre site boundary. SCLI Mot. Summ. J. at 2-3. The
Agency and the County, on the other hand, assert that the County Board did approve a specific
waste footprint by incorporating by reference, into the County Board’s siting approval, the
siting record. Agency Resp. at 8; Cty. Mot. Interv. at 6. The siting record includes SCLI’s
siting application, itself a hearing exhibit, which depicts a specific waste footprint.
Siting Application Process
Waste Footprint
SCLI’s siting application, which was filed with the County Board in July 1996, is part
of the Agency record. The siting application contains a contour map identifying the existing
landfill and the proposed 53.5-acre expansion. The map depicts the waste footprint of the
approximately 32.5-acre lateral expansion, which is adjacent to and north of the existing
landfill. R. at 4909. The lateral expansion consists of four waste cells, cells 1 through 4.
8
Cell 1 would be at the southern end of the lateral expansion (
i.e.
, north of and adjacent to the
existing landfill), with cells 2, 3, and 4 of the lateral expansion then respectively located from
south to north.
Id.
Interior Separation Berm
The siting application also shows and describes a berm that would be between the
northern edge of the existing landfill and the southern edge of cell 1 of the lateral expansion.
In SCLI’s siting application, the berm was described as a “separation berm” between Unit 1
(the existing landfill) and Unit 2 (the lateral expansion):
A soil barrier will be used as a separation between the new and existing units.
The north side of Unit 1 and the south side of Unit 2 will be separated by a
minimum of 50 feet of recompacted cohesive soil and clean soil fill. ***
Although the barrier itself will not be used for waste disposal, the barrier will
provide structural support for the waste in the existing and new units. R. at
4675.
SCLI’s siting application proposed that groundwater monitoring wells for Unit 1 would be
installed in the berm. The application also contained a cross-section drawing of the berm
entitled “Unit Separation.” The drawing shows the minimum 50-foot width of the berm and a
monitoring well within berm, and describes how SCLI would augment and maintain the berm
as waste elevations increased on each side of the berm,
i.e.
, in Units 1 and 2. R. at 4915.
At the October 16, 1996 siting hearing before the County Board, an SCLI
representative responded to a question about the connection between the existing landfill and
the proposed expansion:
Q. [W]ill the existing landfill area and the area of proposed expansion be
connected in any way?
A. Yes, it will essentially be connected as one single landfill. In other
words, one hill. There will be a 50-foot zone, separation zone, between
the two units . . . . That 50-foot separation zone will be used for things
such as monitoring between the two units to allow independent
monitoring for each of them. R. at 4284-85.
Permit Application Process
To obtain a development permit for the landfill expansion, SCLI submitted application
materials to the Agency from October 1999 to December 2001.
Interior Separation Berm
9
During the permit application review process, the Agency, on April 3, 2000, sent SCLI
a draft denial letter. R. at 282. Among the concerns articulated in the Agency’s draft denial
letter, the Agency stated that SCLI’s permit application failed to demonstrate that the
separation berm between Unit 1 and Unit 2 met the safety and stability requirements of the
Board’s landfill regulations at 35 Ill. Adm. Code 811.304(d) and (e). R. at 283. The
Agency’s draft denial letter also stated that the separation berm was insufficient to establish a
zone of attenuation (as defined in the Board’s landfill regulations at 35 Ill. Adm. Code
810.103) between Unit 1 and Unit 2. The Agency maintained that unless the two units could
be monitored separately, SCLI should model them as one unit instead of two for purposes of
the groundwater impact assessment. R. at 287.
SCLI’s response to the Agency’s concerns about the separation berm was to submit a
revised design, eliminating the separation berm. R. at 3435-38. As revised, the design no
longer called for waste in the existing landfill to be kept separate from the waste in the lateral
expansion. SCLI’s new design would result in waste being placed in the area that had
previously been designated for a berm of clean fill, and SCLI proposed corresponding changes
for the lateral expansion’s liner. Agency Resp. at 3; R at 3437-38. The existing landfill and
the expansion would constitute one unit, with one groundwater monitoring system, with no
monitoring wells in the space previously proposed for the berm. R. at 3587. The design SCLI
presented to the County Board had called for two units (separated by the interior berm), with
two separate groundwater monitoring systems, including monitoring wells for Unit 1 in the
berm. R. at 4671, 4757-62.
The Agency asked whether the new design was consistent with the County Board’s
1996 siting approval, which SCLI had submitted to the Agency earlier. Agency Resp. at 4; R.
at 312-13 SCLI in turn submitted to the Agency copies of SCLI’s siting application and the
transcript of the October 1996 siting hearing. R. at 4196–6136. SCLI also submitted the
transcript of a September 12, 2001 County Board meeting at which the County Board passed a
resolution (discussed below) stating that SCLI needed to reapply for siting approval because of
SCLI’s design changes since the 1996 approval. R. at 6138–72.
Other Main Differences Between SCLI’s Siting and Permit Applications
There are three other main differences between the permit application that SCLI
submitted to the Agency and the siting application that SCLI submitted to the County Board.
R. at 4200-02. First, the permit application proposed a wider structural berm along the
western edge of cells 1 and 2 of the lateral expansion. Second, the permit application proposed
to raise the elevation of the liner and base of cell 1 of the lateral expansion. Third, the permit
application proposed to turn the sharp corners of the lateral expansion’s northern and western
exterior berms into rounded corners.
With the elimination of the interior separation berm and these other changes, the
landfill expansion’s waste capacity and waste footprint acreage decreased from that provided in
the siting application approved by the County Board. Specifically, the expansion’s capacity
10
decreased by approximately 291,000 cubic yards (from 4,600,000 cubic yards to 4,309,000
cubic yards) and the acreage of the footprint decreased from approximately 53.5 acres to 53.2
acres (
i.e.
, the lateral expansion changed from 32.5 acres to 32.2 acres). R. at 4198.
However, the changes in the permit application had no effect on the final grade elevation of the
single hill that would eventually cover the entire landfill, which remained 495 feet Mean Sea
Level.
Id.
The permit application did not propose any increase in the vertical expansion
approved by the County Board. The lateral expansion proposed in the permit application
would remain within the approximately 166-acre site proposed in the siting application. Nor
would any exterior waste boundary of the lateral expansion or the rest of the landfill expand.
SCLI Mot. Summ. J. at 3.
Environmental and Safety Issues
The Agency admits that the landfill expansion that SCLI proposed in the revised permit
application, with one groundwater monitoring system and the elimination of the separation
berm, is environmentally safe and consistent with the Board’s substantive landfill regulations.
Agency Ans. at 3. The Agency further admits that it found no safety flaw in SCLI’s revised
permit application.
Id
.
Saline County Board’s September 12, 2001 Resolution
The Agency states that it relied on a November 30, 2001 letter addressed to the Agency
from Mr. Jim Grimes, a member of the County Board. Agency Resp. at 4. Mr. Grimes states
in the letter that on September 12, 2001, the County Board determined that SCLI “be required
to apply for a new siting.” Mr. Grimes’ letter forwarded a September 12, 2001 resolution of
the County Board. Both the letter and the resolution are part of the Agency record. R. at 26-
27.
The one-page resolution states:
[T]he Illinois Environmental Protection Agency has requested a statement from
the Saline County Board with respect to [SCLI’s] local Siting Approval. R. at
27.
* * *
[T]he Egyptian Health Department by letter to the Landfill Committee dated
August 13, 2001 stated: ‘Considering the structural changes made in design of
the landfill since the original siting, the Saline County Board may consider
requiring a new siting of the area.’
Id.
* * *
[T]he Landfill Committee has considered a Certificate of Dissolution of [SCLI]
issued by the Secretary of the State of Illinois dated August 16, 2001
Id.
11
[T]he Landfill Committee has considered the letter from Rod Wolf, Saline
County State’s Attorney, dated September 10, 2001 with respect to involuntary
dissolution of [SCLI]
Id.
* * *
[T]he Saline County Board herewith determines that structural changes have
been made in the design of the landfill since the original siting and the Saline
County Board requires a new local Siting Application.
Id.
Agency’s Permit Denial
The Agency denied SCLI’s permit application on January 4, 2002. Agency Resp. at 4;
R. at 2-3. The Agency gave the following reason for denying the permit:
Section 39(c) of the Act states that the Illinois EPA cannot grant a permit for the
development of a new pollution control facility, unless the applicant submits
proof that the local siting authority has approved the facility through the process
described in Section 39.2 of the Act. [SCLI’s permit] application . . . does not
demonstrate that the waste boundaries, proposed therein, are consistent with the
local siting approval granted by the local siting authority on November 21,
1996. Furthermore, the application does not demonstrate that local siting
approval has been obtained for the new pollution control facility, delineated by
the proposed waste boundaries. R at 2.
On November 21, 1996, the Saline County Board granted local siting approval
for a lateral expansion of this landfill, as set forth in the “Application for Siting
Approval”, filed by Saline County Landfill, Inc. and dated July 1996. This
application for siting approval specified that there would [be] a 50-foot
separation berm between the existing waste footprint (Unit 1) and the lateral
expansion footprint (Unit 2). According to the Application for Siting Approval,
the separation berm was to be constructed of clean soil and its purpose was to
isolate the waste from Unit 1 and Unit 2. R. at 3.
[SCLI’s permit] application . . . proposes to eliminate the separation berm and
to merge the lateral expansion into the existing landfill, thereby forming a single
landfill unit. The proposed change to the waste footprint would result in the
placement of waste beyond the boundary approved by the Saline County Board
on November 21, 1996.
Id
.
The vertical expansion over the existing landfill is not at issue in this permit appeal.
Rather, one aspect of the lateral expansion is at issue: eliminating a proposed berm between
the existing landfill (Unit 1) and the lateral expansion (Unit 2). The Agency admits that, for
purposes of its permit denial, the only material difference between SCLI’s permit application
and siting application is that the former proposes to eliminate a single interior berm within the
one continuous landfill mount planned for final cover. Rec. at 3.
12
SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue of material fact and that 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);
see also
35 Ill. Adm. Code 101.516(b). When ruling on a
motion for summary judgment, the Board “must consider the pleadings, depositions, and
affidavits strictly against the movant and in favor of the opposing party.” Dowd & Dowd, 181
Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” therefore the Board
should grant it only when the movant’s right to relief “is clear and free from doubt.” Dowd &
Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489
N.E.2d 867, 871 (1986). However, a party opposing a motion for summary judgment may not
rest on its pleadings, but must “present a factual basis which would arguably entitle [it] to a
judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist.
1994).
STATUTORY FRAMEWORK
Below the Board provides the Act’s framework for permitting generally, landfill
permitting specifically, and landfill siting.
Permitting Under the Act Generally
Section 39(a) of the Act sets the standard by which the Agency must determine whether
to issue a permit:
When the Board has by regulation required a permit for the construction,
installation, or operation of any type of facility, . . . the applicant shall apply to
the Agency for such permit and it shall be the duty of the Agency to issue such a
permit upon proof by the applicant that the facility . . . will not cause a violation
of this Act or of regulations hereunder. 415 ILCS 5/39(a) (2000).
Section 39(a) also requires that the Agency identify, in a permit denial, the provisions of the
Act or Board regulations that may be violated if it granted the permit.
Id.
Section 40(a)(1) of the Act provides that:
[I]f the Agency refuses to grant or grants with conditions a permit under Section
39 of this Act, the applicant may, within 35 days, petition for a hearing before
the Board to contest the decision of the Agency. 415 ILCS 5/40(a)(1) (2000).
13
Section 40(a)(1) also provides that petitioner has the burden of proof on appeal.
Id
. On
appeal:
[T]he sole question before the Board is whether the applicant proves that the
application, as submitted to the Agency, demonstrated that no violation of the
Act would occur if the permit was granted. Panhandle Eastern Pipe Line Co. v.
IEPA, PCB 98-102, slip op. at 10 (Jan. 21, 1999), quoting Centralia
Environmental Services, Inc. v. IEPA, PCB 89-170, slip op. at 9 (Oct. 25,
1990);
see also
Browning-Ferris Industries of Illinois, Inc. v. PCB, 179 Ill.
App. 3d 598, 601-602, 534 N.E.2d 616, 619 (2d Dist 1989); Joliet Sand &
Gravel Co. v. PCB, 163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958 (3rd Dist.
1987), citing IEPA v. PCB, 118 Ill. App. 3d 772, 455 N.E.2d 189 (1st Dist.
1983).
The Agency’s denial letter frames the issues on appeal.
See
Centralia, PCB 89-170, slip op. at
8; Pulitzer Community Newspapers, Inc. v. IEPA, PCB 90-142, slip op. at 6 (Dec. 20, 1990).
The Board’s review of permit appeals is generally limited to information before the
Agency during the Agency’s statutory review period, and is not based on information
developed by the permit applicant or the Agency after the Agency’s decision. Alton Packaging
Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987); Panhandle,
PCB 98-102, slip op. at 2; American Waste Processing v. IEPA, PCB 91-38, slip op. at 2,
(Oct. 1, 1992). However, it is the proceeding before the Board that provides a mechanism for
the petitioner to prove that issuing the requested permit would not result in a violation of the
Act or Board regulations. Further, the Board proceeding affords the petitioner the opportunity
to challenge the information relied upon by, and the reasons given by, the Agency for denying
the permit. Alton Packaging, 162 Ill. App. 3d at 738, 516 N.E.2d at 280, quoting IEPA v.
PCB, 115 Ill. 2d 65, 70 (1986).
Landfill Permitting Under the Act
The permit process described above generally applies to all permitting under the Act,
including landfill permitting. Landfill permitting, however, also requires proof that the
proposed new landfill or expansion has received local siting approval. Section 39(c) of the Act
provides that:
[N]o permit for the development or construction of a new pollution control
facility may be granted by the Agency
unless the applicant submits proof to the
Agency that the location of said facility has been approved by the County Board
of the county if in an unincorporated area, or the governing body of the
municipality when in an incorporated area in which the facility is to be located
in accordance with Section 39.2 of this Act. 415 ILCS 5/39 (2000) (emphasis
added).
14
The Act’s definition of “new pollution control facility” includes “the area of expansion beyond
the boundary of a currently permitted pollution control facility.” 415 ILCS 5/3.32(b) (2000).
Landfill Siting Under the Act
Accordingly, under Section 39(c), the applicant for a landfill development permit must
submit proof that it received siting approval from the local government in accordance with
Section 39.2 of the Act (415 ILCS 5/39.2 (2000)). Section 39.2, commonly referred to as
“S.B. 172” for the originating legislation, provides a process through which the local
government decides, based on nine statutory criteria, whether to approve or disapprove a
request to site a new or expanding pollution control facility, including a new or expanding
landfill.
To receive siting approval, the applicant must demonstrate to the local government that
the proposed facility or expansion meets all nine criteria. The criteria include whether the
proposed facility or expansion is necessary to accommodate the waste needs of the intended
service area, is designed, located, and proposed to be operated so as to protect public health
and safety, and is located so as to minimize incompatibility with the character of the
surrounding area.
See
415 ILCS 5/39.2(a)(i)-(iii) (2000). If the local government denies or
conditionally grants landfill siting, the applicant may appeal the decision to the Board. In some
instances, third parties may file an appeal with the Board to contest the local government’s
grant of landfill siting.
See
415 ILCS 5/40.1 (2000).
ANALYSIS
Both SCLI and the County believe that this case is appropriate for summary judgment.
Neither believes that there is any genuine issue of material fact. SCLI Mot. Summ. J. at 1;
Cty. Mot. Interv. at 8. SCLI argues that the Board should reverse the Agency’s permit denial
as a matter of law. SCLI Mot. Summ. J. at 1. The County argues that the Board should
affirm the Agency’s permit denial as a matter of law. Cty. Mot. Interv. at 3. The Agency,
however, which filed its response to SCLI’s motion for summary judgment before the County
filed its counter-motion for summary judgment, asserts that there are genuine issues of material
fact over the scope of the County Board’s 1996 siting approval. The Agency maintains
therefore that summary judgment is inappropriate and that the case should go to hearing.
Agency Resp. at 13.
The issue on appeal, as framed in the Agency’s permit denial letter, is whether
issuance of the requested development permit would violate Section 39(c). Section 39(c)
requires the permit applicant to submit proof to the Agency that the proposed landfill expansion
received local siting approval. The parties do not dispute that the vertical and horizontal
expansion of the Saline County Landfill would constitute a “new pollution control facility”
under Section 3.32(b) of the Act, requiring local siting approval under Section 39.2 of the Act.
Nor do the parties dispute that SCLI obtained landfill expansion siting approval in 1996 from
the County Board in accordance with Section 39.2.
15
The parties disagree, however, on whether a change in the design of the expansion
between siting and permitting requires SCLI to receive another siting approval from the
County Board under Section 39.2 before the requested development permit can issue under
Section 39(c). The design change is the elimination of the proposed interior separation berm
between the existing landfill and the lateral expansion. SCLI believes that the design change
requires no additional local siting approval. The Agency and the County believe that SCLI
must return to the County Board for new siting before the requested permit could issue.
Below the Board discusses the three central issues in SCLI’s motion for summary
judgment: (1) whether the County Board in 1996 approved a specific waste footprint location
for the lateral expansion; (2) the scope of SCLI’s burden of proof under Section 39(c) of the
Act; and (3) the significance of removing the interior berm from the landfill’s design between
siting and permitting.
Location Restrictions of the County Board’s 1996 Siting Approval
SCLI argues that the only location restrictions imposed by the County Board on the
expansion are (1) to not exceed the acreage limits (53.5 acres total, 21 acres of vertical
expansion, and 32.5 acres of lateral expansion) and (2) to stay within the 166-acre overall site
boundary. SCLI Mot. Summ. J. at 2. SCLI maintains that these are the only location
restrictions because only these are set forth expressly in the County Board’s siting approval.
SCLI asserts that the County Board did not require any specific waste footprint location.
Id.
Because SCLI’s permit application proposes an expansion of 53.2 acres (21 acres of vertical
expansion, 32.2 acres of lateral expansion), which would be located entirely within the 166-
acre boundary for the site, SCLI argues that it has met all of the location requirements imposed
in the County Board’s 1996 approval.
The Agency and the County, on the other hand, assert that the County Board
did
impose a specific waste footprint location requirement. The Agency and the County maintain
that SCLI’s siting application depicts the waste footprint for the expansion, and that the County
Board’s approval incorporates by reference the siting application. Agency Resp. at 8; Cty.
Mot. Interv. at .2. This position is consistent with the Agency’s permit denial letter, which
states that the County Board “granted local siting approval for a lateral expansion of this
landfill, as set forth in the “Application for Siting Approval,” filed by [SCLI].” R. at 3. The
Agency argues that the disagreement with SCLI over whether the local approval included a
specific waste footprint presents a genuine issue of material fact precluding summary
judgment. Agency Resp. at 13. On the other hand, the County argues, in effect, that while
there is disagreement over this material fact, there is no genuine issue of material fact—that is,
the local siting approval clearly incorporates the siting application’s waste footprint by
reference. Cty. Mot. Interv. at 3.
The Board disagrees with SCLI’s argument that the only location restrictions imposed
by the County Board on the expansion are those expressly set forth in the County Board’s
16
resolution and findings of fact of November 21, 1996. Besides the impracticality of requiring
a local siting resolution or ordinance to set forth verbatim every location restriction from a
voluminous siting record, here the County Board’s approval incorporates SCLI’s siting
application by reference, and refers to the “site location set forth in the Application” and the
“property described in the Application.” R. at 4248; 4257. The Board finds no genuine issue
of material fact on whether the 1996 siting approval included a specific waste footprint
limitation. It did.
Scope of Section 39(c)
The parties dispute the scope of Section 39(c) of the Act. SCLI argues that Section
39(c) only requires that it submit proof to the Agency that the County Board has approved the
location of the expansion, not the design of the expansion. The County and the Agency argue
that Section 39(c) is not so narrow, and that SCLI must prove that the design in its permit
application is consistent with the design presented to the County Board.
The terms of the Act “are not to be considered in a vacuum.” M.I.G. Investments,
Inc. v. IEPA, 122 Ill. 2d 392, 523 N.E.2d 1 (1988). The Act’s landfill permitting and siting
provisions must be construed together. Interpreting the Section 3.33(b)(2) definition of “new
pollution control facility,” the Illinois Supreme Court in M.I.G. stated:
From the language of section 3(x)(2) [now 415 ILCS 5/3.32(b)(2) (2000)], it is
clear that the legislature intended to invest local governments with the right to
assess
not merely the location of proposed landfills, but also the impact of
alterations in the scope and nature
of previously permitted landfill facilities.
M.I.G., 122 Ill.2d at 400, 523 N.E.2d at 4 (emphasis added).
The Board finds that the local siting authority can, indeed, consider whether a new
landfill or expansion proposed for siting is “so designed . . . that the public health, safety and
welfare will be protected.” 415 ILCS 5/39.2(a)(ii) (2000);
see also
City of East Peoria v.
PCB, 117 Ill. App. 3d 673, 679, 452 N.E.2d 1378, 1382 (3d Dist. 1983) (the Act
“unambiguously requires the county board to consider the public health ramifications of the
sanitary landfill’s design at a given site”); Kane County Defenders, Inc. v. PCB, 139 Ill. App.
3d 588, 592-93, 487 N.E.2d 743, 746 (2d Dist. 1985). If an applicant were allowed to
substantially change its landfill design between siting approval and permitting, without
reapplying for siting approval, the Section 39.2 design criterion could be rendered
meaningless.
The First District Appellate Court addressed the scope of the permit applicant’s Section
39(c) burden of proof in Medical Disposal Services, Inc. v. IEPA, 286 Ill. App. 3d 562, 677
N.E.2d 428 (1st Dist. 1996). The court affirmed the Board’s decision requiring new local
siting approval before a landfill permit could issue because ownership of the facility changed
after siting approval:
17
Section 39(c) does not expressly provide that the applicant for the permit must
be the same entity that received local siting approval, but
reading section 39(c)
and section 39.2(a) together
, we infer that section 39(c) contemplates that the
applicant must be the same entity that had obtained local siting approval.
Although section 39(c) refers only to the approval of the location of the facility
as a condition required for permit issuance, we find determinative of the
transferability issue that section 39.2(a) of the Act permits localities to consider
the applicant’s previous operating experience. Pursuant to section 39.2(a),
which is referenced in section 39(c), localities are to approve not just the site’s
location and the facility but also the operator of the facility.
* * *
[T]he local site approval process is the most critical stage of the [landfill siting]
process. In this case, the Pollution Control Board did take into consideration
the last sentence of Section 39.2(a) [allowing the local siting authority to
consider the siting applicant’s prior operating history and record of violations
and convictions] and found that to allow location site approval to be transferred
from an applicant to someone else would allow one to
bypass the scrutiny of the
hearing process at the local level
.
* * *
We hold that local siting approval is applicant specific and is not transferable to
a new permit applicant and that a new permit applicant must reobtain such
approval before permits under section 39(c) can be granted. Medical Disposal,
286 Ill. App. 3d at 565-567, 677 N.E.2d at 431-433 (emphasis added).
12
Likewise, Section 39(c) does not expressly refer to the design of the facility. Section 39.2,
however, requires the local siting authority to consider whether the facility’s design will
protect public health, safety, and welfare. The Board finds that a permit applicant’s burden of
proof under Section 39(c) is not limited to showing only that the proposed facility’s location
has been approved by the local government.
Significance of Eliminating the Interior Separation Berm
At its core, this dispute is about whether eliminating the interior berm fundamentally
alters the nature and scope of the expansion approved by the County Board in 1996. The
parties are nearly at opposite ends of the spectrum when describing the impact that removing
the berm would have on the expansion approved by the County Board.
The Agency states that, by eliminating the interior berm, SCLI now proposes an
expansion that “extends over the [interior] berm, outside the waste boundaries approved by the
12
The General Assembly subsequently changed Section 39(c) to allow siting approval to be
transferred. Now, when the subsequent owner or operator applies for a development permit, the
local siting authority is notified and the Agency, under Section 39(i) (415 ILCS 5/39(i) (2000)),
evaluates the applicant’s prior experience and record of violations and convictions before issuing
the permit.
18
Saline County Board.” Agency Ans. at 7. The Agency’s denial letter likewise states that the
“proposed change to the waste footprint [eliminating the interior berm] would result in the
placement of waste beyond the boundary approved by the Saline County Board on
November 21, 1996.” R. at 3. The County similarly states that the “area formerly to have
been occupied by earthen materials now would, under the proposed permit, be occupied by
trash,” and that airspace of the former berm was “not approved by the Saline County Board
for trash placement.” Cty. Mot. Interv. at 3.
The Board finds, and SCLI does not dispute, that the roughly 50-foot wide area of the
once-proposed clean fill berm, which would have run the length of the lateral expansion’s
southern edge, would contain waste under SCLI’s permit application. The berm, as a
“separation” berm, was by definition beyond the southern waste boundary of the lateral
expansion. The Board further finds, and SCLI does not dispute, that eliminating this internal
separation berm will result in waste being placed outside of the waste footprint presented in
SCLI’s siting application. Because SCLI’s siting application was incorporated by the County
Board, the Board finds that the currently proposed waste footprint extends beyond the waste
footprint that received local siting approval.
The Board has stated in
dicta
that when the local siting authority establishes
“boundaries for the waste ‘footprint’ in its siting resolutions, any proposed extension would
almost certainly require additional siting approval.” Waste Management of Illinois, Inc. v.
IEPA, PCB 94-153, slip op. at 7 (July 21, 1994). SCLI maintains, however, that it is actually
proposing “a contraction of, and not an expansion of, the facility approved at local siting.”
SCLI further asserts that “the nature and scope of the landfill proposed in the instant
application remain the same as that approved by the local siting authority,” and that its permit
application “reduces the impact on the nine local siting criteria.”
The Board finds that the interior berm airspace that would now be filled with waste
rather than clean fill is a relatively narrow strip, wedged entirely between the old landfill and
the new expansion. The Board further finds that with or without the interior berm, the exterior
boundary of the entire landfill waste footprint on the 166-acre site, including the exterior waste
boundary of the lateral expansion, would remain unchanged. If SCLI installed the interior
berm as originally proposed, waste would have been placed immediately to the south and north
of it and the ends of the interior berm would have joined the structural exterior berms on the
eastern and western edges of the lateral expansion. Nor is it the case that SCLI is proposing
the lateral expansion for a completely different area within the 166-acre site boundary—as
proposed in the permit application, the lateral expansion remains north of and adjacent to the
existing landfill as originally proposed, only smaller.
It is undisputed that the vertical expansion and the exterior boundary of the lateral
expansion would remain unchanged by removing the berm. The Board finds that with or
without the interior berm, both the existing landfill and the expansion would eventually be
under one hill of final cover, the elevation of which would remain unchanged. Further, it is
uncontested that the waste capacity of the expansion and the acreage of the lateral expansion
19
waste footprint would actually be smaller under the permit application than was proposed to the
County Board in 1996. Accordingly, the Board finds that there would be less waste disposed
at the site and less acreage devoted to waste than the County Board had contemplated.
The County nevertheless argues that removing the berm is a “basic and fundamental
change” and states that it considered the presence of the berm in finding that SCLI satisfied the
Section 39.2 design criterion. Cty. Mot. Interv. at 6. Besides waste being placed beyond the
County Board-approved footprint, the County asserts that during the siting process, SCLI had
described the interior berm as necessary for the landfill’s structural support. The County states
that SCLI’s permit application proposes “some other methods of structural support” over
which the County Board had no say. Cty. Mot. Interv. at 8. The County maintains that
without the interior berm, waste from the existing landfill would not be kept separate from
waste to be placed in the lateral expansion,
i.e.
, there would be one landfill unit instead of the
two separate units proposed to the County Board. The County argues that these issues of
“structural stability and separation of old and new facilities” are valid siting concerns of the
County Board and that SCLI’s “suggestion that technical promises made during siting hearings
can be ignored in permit applications is simply unsupportable.” Cty. Mot. Interv. at 4.
The Board agrees with the County that, contrary to the siting application, the permit
application design calls for one landfill unit instead of two. Accordingly, nothing would keep
waste from the existing landfill separate from waste to be placed in the lateral expansion. The
Board further finds that with only one unit, the existing landfill and the lateral expansion would
not have independent groundwater monitoring systems, as had been proposed to the County
Board, but instead would have one groundwater monitoring system. As the County points out,
SCLI’s siting application had proposed having groundwater monitoring wells in the separation
berm to monitor Unit 1 for contaminants. Cty. Mot. Interv. at 8. The Board notes
accordingly that there would have been compliance points for Unit 1 very close to the northern
edge of the existing landfill. The Board further notes that with monitoring wells in the
separation berm, any potential zone of attenuation (the area within which contaminant
concentrations are allowed to exceed applicable standards) could be smaller than it would be
otherwise. The County states that SCLI now proposes “some other . . . location for
groundwater monitoring wells” over which the County had no control.
Id.
Moreover, the Board finds that in the siting application, with two landfill units
proposed, SCLI represented that it would fill Unit 1 (the existing landfill and the vertical
expansion) with waste to final grade before it would so fill Unit 2 (the lateral expansion
comprised of cells 1-4). R. at 4671. The siting application further stated that Unit 1 would
have final cover and be certified closed as soon as practicable after filling is complete. In the
siting application, SCLI estimated that Unit 1 would be full in five years. R. at 4676. SCLI’s
final cover would entail placing a composite layer of compacted clay and synthetic material
over the waste, and topping that composite layer with soil and vegetation.
In SCLI’s permit application, as noted, the proposed removal of the separation berm
would result in one landfill unit, not two. The Board notes that with one landfill unit, under
20
the Board’s regulations, SCLI would not have to begin any final closure activities until it
receives the final load of waste at the landfill site.
See
35 Ill. Adm. Code 811.110(e), (f).
SCLI’s siting application estimated that the “horizontal and vertical expansions will provide
waste disposal service for a period of approximately 20 years.” R. at 3436. The permit
application further stated that the “[c]losure of each cell will be accomplished as soon as
practicable, once cells reach final grade” (R. at 3436) and that “final cover will be placed as
final waste grades are attained.” R. at 3628. The “general sequence of cell development will
proceed from south to north.” R. at 3436. SCLI stated in the permit application that the
vertical expansion of the existing landfill would be filled concurrently with cells 1 and 2 of the
lateral expansion to ensure stability.
Id.
According to the permit application, however, cells 1
and 2 of the lateral expansion would not be filled to final grade until sufficient waste was
placed in the last two cells of the lateral expansion (cells 3 and 4) to ensure a stable landform.
Id.
Cell 4 is estimated to begin development in 16 years.
Id.
The Board notes that the County Board, in determining that SCLI had satisfied the
Section 39.2 criteria, approved the design of an interior berm about which the Agency, in a
draft permit denial letter, raised concerns over safety and stability, indicating that the interior
berm may not comply with Board regulations. Of course, it is the Agency, not the County
Board, that is charged with reviewing the design for compliance with the Act and Board
regulations. The Agency, in rendering a permit decision, must determine whether the landfill
design will violate the Act or Board regulations. If it will, regardless of whether a local siting
authority approved the design, a development permit cannot issue. The Agency admits that the
absence of the berm does not raise an environmental or safety concern or violate the Board’s
landfill regulations. Indeed, the Agency’s permit denial is based on no such ground.
Board Ruling on SCLI’s Motion for Summary Judgment
The Board must synthesize the siting and permitting provisions of the Act, consistent
with M.I.G. and Medical Disposal. The Board accordingly holds that, under the specific
circumstances of this case, the Agency’s permit denial will be upheld unless SCLI can
demonstrate, based on the Agency’s record, that there is not a reasonable likelihood that the
design change at issue would result in a negative impact on any Section 39.2 siting criterion.
On this score, there is a genuine issue of material fact, making summary judgment
inappropriate.
Of course, this case is not a siting appeal. Neither the Agency nor the Board can
substitute its judgment for that of the 1996 County Board that granted siting. But the Act
requires the Agency to determine whether SCLI submitted adequate proof of local siting, and
the Act in turn requires the Board to determine whether the Agency’s decision was in error.
The Board accordingly must consider the County Board’s 1996 siting approval to decide how
to ultimately rule in this permit appeal. A hearing will provide an opportunity for the parties
to address the disputed significance of berm removal to the nature and scope of the expansion
approved in 1996. The entire 1996 local siting record, as well as the County Board’s 2001
21
resolution calling for new siting, is included within the Agency record, and the County is a
party to this proceeding.
This approach protects the interests of the County Board and local citizens, as well as
the integrity of the Section 39.2 siting process, “because it is essential to implement the
legislative intent of providing meaningful local approval of the siting of pollution-control
facilities.” Medical Disposal, 286 Ill. App. 3d at 566, 677 N.E.2d at 432.. This approach
also reflects the Act’s structure—permitting necessarily follows siting, and, practically
speaking, some changes from earlier designs will almost inevitably occur and indeed may have
to occur to comply with the Act and Board regulations.
The County suggests that the Agency cannot issue the development permit because
SCLI “asks for something different” than proposed in 1996. Cty. Mot. Interv. at 3.
According to the County, “the issue is whether the application for a permit is for
the same
facility
for which siting approval was granted.” Cty. Mot. Interv. at 6. The Board finds that
this standard, for all practical purposes, would likely be unattainable. Surely not every single
design change, however slight, requires new local siting proceedings. Such a complete lack of
design flexibility is neither workable nor required by the Act. Here, the Agency did not deny
the permit because the liner of cell 1 would be at a higher elevation than proposed to the
County Board in 1996 or because the exterior western berm of the lateral expansion would be
thicker than proposed to the County Board in 1996. Nor does the County complain of those
changes. However, if those had been the only changes made by SCLI after siting approval, the
Agency, according to the County’s logic, would have erred in issuing the development permit
because there would not have been complete consistency between the siting and permitting
design.
An applicant that has been through local siting, an often expensive and time-consuming
process, should not have to return to get new local siting approval for every single design
change without regard to the import of the change. Just as the Board will not allow the local
siting process to be effectively bypassed, the Board will not send a permit applicant back to
restart a process started roughly six years ago without justification grounded in the words and
policies of the Act.
See
Medical Disposal, 677 N.E.2d at 432 (suggesting no additional siting
needed when the “facility is going to be substantially the same as originally proposed”).
However, if there is a reasonable likelihood that placing waste in the interior berm
airspace, creating a single unit landfill, would result in a negative impact on any Section 39.2
criterion, the Board will affirm the Agency’s permit denial.
See
Kane County Defenders, Inc.
v. PCB, 139 Ill. App. 3d 588, 487 N.E.2d 743 (2d Dist. 1985) (“the county board hearing,
which presents the only opportunity for public comment on the proposed site, is the most
critical stage of the of the landfill site approval process”).
Assessing the design change’s impact to the nature and scope of the expansion against
the siting criteria is supported by case law. The Illinois Supreme Court in M.I.G. focused on
increased waste capacity in holding that a vertical expansion required local siting approval:
22
To expand the boundaries of a landfill, whether vertically or laterally, in effect,
increases its capacity to accept and dispose of waste. An increase in the amount
of waste contained in a facility
will surely have an impact on the criteria set out
in section 39.2(a), which local governmental authorities are to consider
in
assessing the property of establishing a new pollution control facility. Indeed,
adjusting the dimensions of a landfill facility to increase the amount of waste
stored will surely have an impact on “the danger to the surrounding area from
fire, spills or other operational accidents” and “the character of the surrounding
area.” M.I.G., 122 Ill. App. 2d at 396, 523 N.E.2d at 5 (emphasis added).
In Bi-State Disposal, Inc. v. IEPA, 203 Ill. App. 3d 1023, 561 N.E.2d 423 (5th Dist.
1990), the Fifth District Appellate Court held that that local siting approval was required
before a modified landfill permit could issue. The modification sought to reopen for disposal a
mine cut bisecting the site that would increase the landfill’s waste disposal capacity, impacting
the Section 39.2 criteria:
This increased capacity
impacts on the criteria local governmental authorities
consider
in assessing the propriety of establishing a new regional pollution
control facility.
* * *
Petitioners seek to vertically expand, although into a ditch instead of above the
ground [as in M.I.G.], the boundaries of the landfill in question. ***
Petitioners must seek local siting approval before applying to the [Agency] for a
permit. Bi-State, 203 Ill. App. 3d at 1026, 561 N.E.2d at 426 (emphasis
added).
Likewise, in Waste Management, the Board held that no additional local siting approval
was required and reversed the Agency’s permit denial: the requested permit modification to
reconfigure the landfill would “result in a net loss in volumetric capacity to the landfill” and
“accordingly shorten the life of the landfill,
decreasing the impacts on the criteria of Section
39.2(a)
as previously considered by Christian County.” Waste Management, PCB 94-153, slip
op. at 7 (July 21, 1994)(emphasis added). The Board further noted that “the stipulated purpose
of the proposed redesign is to minimize the impacts of the landfill on the environment” and
found that the “‘nature and scope’ of the landfill remain the same as that approved by Christian
County.”
Id
. However, in Waste Management, unlike the instant case, the local siting
authority had imposed no waste footprint on the expansion.
CONCLUSION
SCLI has the burden to prove that the development permit it requested would not
violate the Act. The Agency’s denial letter frames the issue on appeal before the Board. The
Agency’s denial letter states that Section 39(c) of the Act would be violated if it issued the
23
requested permit. Before the Agency can issue a development permit, Section 39(c) requires
the permit applicant to submit proof that the proposed landfill expansion has received local
siting approval. Local siting approval under the Section 39.2 criteria entails the local siting
authority considering not only the location of a proposed expansion, but also the impacts of the
proposed expansion’s design. During the permit application process, SCLI changed the design
of the landfill expansion from that presented to the County Board during siting. The change is
the removal of the interior separation berm that would have been between the existing landfill
and the lateral expansion. The parties dispute the significance that the change would have on
the nature and scope of the expansion approved by the County Board in 1996.
The Board notes that if each and every design change made in permitting a landfill
expansion automatically meant the redesigned expansion lacks local siting approval, the result
could be a nearly endless loop of siting, followed by permitting, followed by siting,
ad
nauseam
. On the other hand, local siting review could be undermined if development permits
were allowed to issue for designs that substantially differed from the design considered by the
local siting authority. In this case, the significance of the design change from siting to
permitting is necessarily gauged by the impact the change could reasonably have on the Section
39.2 siting criteria. SCLI therefore has the burden to prove that there is not a reasonable
likelihood that the design change at issue would result in a negative impact on any Section 39.2
siting criterion. If SCLI fails to meet this burden, then the landfill expansion proposed in its
permit application does not have local siting approval and therefore the requested permit would
violate Section 39(c) of the Act.
Because SCLI has moved for summary judgment, the Board construes the filings
strictly against SCLI. The Board cannot find that SCLI’s right to relief “is clear and free from
doubt.” Dowd & Dowd, 181 Ill. App. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess,
111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). “Where doubt exists as to the right to
summary judgment, the wiser judicial policy is to permit resolution of the dispute by a trial.”
Indian Prairie Comm. Unit School Dist. No. 204 v. IEPA, PCB 93-180, slip op. at 4 (Dec. 4,
1997), quoting Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633
N.E.2d 627, 630 (1994). The Board finds that there is a genuine issue of material fact as to
whether removing the interior separation berm from the landfill expansion’s design, and
implementing corresponding changes, fundamentally alters the nature and scope of the landfill
expansion approved by the County Board in 1996. The Board accordingly denies SCLI’s
motion for summary judgment.
HEARING
SCLI has represented that it is rapidly running out of landfill airspace and that it could
face temporary closure or drastic waste intake reductions if it cannot avail itself of the 2002
construction season to begin the expansion. SCLI Mot. Exp. at 1-2. Consistent with the
Board’s prior grant of SCLI’s motion for expedited consideration, the Board directs this case to
hearing on April 23, 2002. A hearing for April 16, 2002, had been scheduled and publicly
24
noticed, but the hearing was continued on the record until April 23, 2002, pending the Board’s
rulings today.
Today’s findings considerably narrow the dispute among the parties. The Board directs
the hearing officer to limit evidence to the remaining contested issue: whether there is a
reasonable likelihood that the design change resulting in permit denial would result in a
negative impact on any Section 39.2 siting criterion. Consistent with the Act and long-standing
precedent, the Board’s review is typically limited to the information relied upon by the Agency
when it denied the permit,
i.e.
, the Agency’s record, which, in this case, includes the 1996
siting record of the County Board. The hearing will nevertheless afford the opportunity for
testimony and cross-examination on whether the design change described in the Agency’s
permit denial substantially changes the nature and scope of the landfill expansion approved in
1996. The Board further directs the hearing officer to arrange for the hearing transcript to be
filed as soon as practicable and to place the parties on an expedited, simultaneous briefing
schedule.
ORDER
1.
The Board denies SCLI’s motion for summary judgment.
2.
The Board grants the County’s motion to intervene.
3.
The Board denies the County’s counter-motion for summary judgment.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on April 18, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
