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FROM
HEDINGER
LPUJ
OFFICE
TO
1312B14366~
F. 02722
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARD
SALINE COUNTY LANDFILL,
INC.,
PETITIONER,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENT.
)
)
)
)
)
)
)
RECEIVED
CLERK’S OFFICE
APR 05 2004
STATE OF ILLINOIS
)
Pollution Control Board
No. PCB 2004-117
(PERMIT APPEAL)
NOTICE OF FILING
AND
PRC!LQ
ESERVICE
To:
Brian
E.
Konzen, Esq.
Lueders, Robertson, Konzen
&
Fitzhenry
1939 Delmar,
P.O. Box
735
Granite City, IL
62040
Pollution Control Board, Attri:
Clerk
100 West Randolph Street
James R. Thompson Center
Suite 11-500
Chicago, IL 60601-3218
Carol Sudman
Hearing Officer
illinois Pollution Control Board
600 South Second Street, Suite 402
Springfield, IL
62704
John Kim
Division of Legal
Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.Box
19276
Springfield,
IL
62794-9276
PLEASE TAKE NOTICE that on the~~day ofApril, 2004, we sent via U.S. Mail
delivery to the Clerk of the Pollution
Control Board the original and nine copies of the
CLOSII’IG BRIEF OF INTERVENOR COUNTY OF SALINE for filing
in
the above entitled
cause.
Pursuant to Hearing Officer authorization, this document was also filed on this
date by
facsimile transmission, commenced before 5:00 n.m.
The undersigned certifies that
a true and correct copy of the above-described document
was served
upon each of the above-identified individuals via U.S. Mail,
by
enclosing the same
in
envelopes
properly
addressed
with
first
class postage
affi,~edand
by
depositing
said
envelopes in a U.S. mailbox
in Springfield,
Illinois, all on thc~~~Rlay
ofApril, 2004.
Further,
the above-described
document
was also
served via facsimile transmission
to
the above-named
parties on this date, commenced before 5:00 p.m.
Hedinger Law Office
2601
South Fifth Street
Springfield, IL 62703
(217)
523-2753
phone
(217)
523-4366
fax
By
T1IS
FILING IS SUBMrtTEP ON
RECYCLED
PAPER
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1?11
FROM
HEDINGER
LAId OFFICE
TO
13128143569
P.03722
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
(15
2(J(J4
SALINE COUNTY LANDFILL, INC.,
)
STATE OF ILLINOIS
Pollution Control Board
PETITIONER,
)
)
v.
)
No. PCB 2004-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
RESPONDENT.
)
•
)
•
)
COUNTY
OF SALINE,
)
)
INTERVENOR.
CLOSING 13R~EF
OF
INTER
VENOR COUNTY
OF
SALINE
NOW COMES Intervenor, COUNTY OF SALINE, through its undersigned attorneys,
and for its Closing Brief in this
permit appeal proceeding brought by Petitioner SALINE
COUNTY LANDFILL,
INC.
(hereinafter “SCLI”), states as follows:
Stan chird.oiReyiew
SCLI begins its discussion
of this
matter by claiming that “the
standard of review in this
cause is whether issuance of the permit sought by SCLI will cause
a violation of the
Environmental Protection (Act)
sic,
specifically 415 ILCS
5/39.2(t).”
(SCLI Brief, at 6).
This
is a gross, and apparently intentional, misstatement ofthe law.
Less than
two
years ago SCLI brought
another
permit appeal before this Board (PCB 02-
108), in
which SCLI tried to convince
this Board to issue
a permit to a facility for which
siting
approval had never becn granted by the Saline County Board.
In denying SCLI’s attempt to
bypass
the local siting approval process, this Board informed SCLI of the standard of
review
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employed by
this Board in considering a permit appeal:
“The petitioner has the burden of proof
on
appeal.
See 415 ILCS 5/40(a)(1) (2000).
On appeal
‘the sole
question before the Board is
whether the applicant proves that the application, as submitted
to the Illinois
Environmental
Protection
Agency, demonstrated that no violation ofthe Environmental
Protection
Act would
occur if this permit was granted.”
S~line
Co~intv
Landfill, Inc. v. Illinois Environnicaital
Protection Agcncy, PCB 02-108, slip op.
at
9
(May 16,
2002), citing PanhandIeB~isternPipe
Line Co.
v. IEPA, PCB 98-102, slip op.
at 10
(Jan. 21,
1999),
ciff’d sub izo,n
Panhandle Eastern
~jpciine
Co. v.
PCB and
IEPA, 314 Ill. App. 3d 296, 734 N.E.2d
18
(41h
Dist. 2000), quoting
Ceritralip Environmental Services, Inc.
v.
TEPA, PCB 89-170, slip op. at
9
(Oct. 25,
1990);
Browning-Ferris Industries of Illinois,
Inc. v. PCB, 179 Iii. App. 3d
598,
601-602,
~534
N.E.2C1
616, 619 (2d
Dist.
1989); Joliet
Sand &
Gravel
Co.
v. PCB, 163 Iii. App. 3d
830. 833,
516
N.E.2d
955,
958 (3d Dist.
1987), citing IEPA v. PCB,
118 Iii. App. 3d 772,455 N.E.2d
188 (1st
Dist.
1983).
Hence, far from the burden here being upon the Agency
to prove that issuance of the
permit would
cause a violation of the Act, in fact the burden falls upon SCLI to prove that
issuance of the permit as submitted would n~t
have violated the Act.
It is a burden SCLI has
failed to
meet; presumably that explains SCLI’s baseless attempt to convince this Board to
utilize
a different standard of review in this case.
Eaç~s
In November 1996 the Saline County Board considered and approved an application
submitted by SCLI to expand its facilitylocated near Harrisburg.
(~
generally Saline County
L~ndfil1Jnc.,PCB 02-108, slip op. at 4-9 (May 16, 2002)).
Among other things, the approved
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expansion plan called for construction of an earthen berm to separate the
old landfill from the
•
-
new;
this berm was to be
at least 50 feet wide, was to
be filled with non-waste materials, and was
to house a number offeatures ancillary
to
the landfill operations, including groundwater
monitoring wells.
Construction of the berm would allow for the certification ofclosure ofthe
old landfill within five
(5)
years, whereas the new expansion was to have a lifespan of as many
as twenty-five
(25)
years.
SCLI also
represented that the berm would enhance stability of the
Overall structure. (id~).
Nearly three years after the Saline
County Board approved the plan, in November 1999
SCLI submitted to
the Agency
an application for a permit to
develop the facility that had been
approved by the Saline County Board.
That original application included all salient features that
had been considered and approved by tire Saline County Board, including
the berm.
(JL).
The Agency’s review identified a number of application provisions which did not or
would not comply with the applicable regulations, and the Agency required that SCLI address
these deficiencies.
Among other things,
the Agency noted that the planned 50 foot berm was not
large enough
to support separate groundwater modeling for both
the old
and the new landfills.
(a).
SCLI had
a number of options to address this problem.
First,
SCLI could have retained
the 50 foot berm, and modeled both the old and new landfills as a single site.
Second, SCLI
could have expanded the width of the berm to 100 feet or more to
accommodate the two
groundwater monitoring zones.
Either of these options would have been consistent with the
siting approval, which required that the berm be
a minimum of50 feet wide. (I~).
However, SCLI did not choose either of these options.
Instead, its revised plan, filed
with the Agency in August 2000, eliminated the berm altogether.
This revision would allow
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SCLI
to place waste
where the berm’s non-waste material had been planned, would
eliminate the
separation of the old
and
the new landfills,
arid resulted
in a
re-engineering
of
the structural
support
system, as well as the groundwater monitoring system.
The old landfill’s closure date
was
also impacted; rather than being closed within five
(5)
years, under the revised
design the
old landfill would
remain
“open” until the entire expanded facility was ready to close.
SCLI’s
proposed revision withdrew its
original proposal, and substituted the new design. (J~).
Saline County immediately objected to SCLI’s proposal, pointing out that removal of the
berm was patently inconsistent with the November 1996 siting approval.
(Ii).
The Agency
carefully considered Saline
County’s objection, and
required that SCLI submit substantIal
additional materials relating to
the 1996 siting approval.
Once these materials were submitted,
the Agency determined that Saline County’s objection was well-taken,
and offered
SCLI the
opportunity to revise its submittal once again, this time to return to the original design that had
been approved by the Saline County Board.
SCLJ rejected this opportunity,
though, and so the
Agency issued a final denial ofSCLI’s application for a development permit, as required by
415
ILCS
5/39(c)
(which requiresproofof siting approval prior to issuance of any such permit).
(j~).SCLI appealed, and
by its May 16, 2002 order, the Pollution Control Board affirmed.
SCLI did not seek any further review, either through a motion for reconsideration or through
appeal to the appellate court.
This Board’s order came 6 years ~iter Saline
County had granted
the siting approval.
During the time the Agency was consideringwhether SCLI’s modifications were
inconsistent with the siting approval, SCLI had pending before the Agency not only that
application for a development permit, but also a routine application for renewal of the existing
landfill’s operating permit.
That renewal application, Log No. 2001-362, was originally
4
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sabrnittcd
on September 24, 2001, but
on January 24, 2002
(which was approximately three
weeks
~fi~j
the Agency denied SCLI’s development permit application), SCLI sent
a letter
to the
Agency which
disputed the Agency’s denial of the development permit application, but
purported to
incorporate the entire record of that permit log (Log 1999-381) into the
old facility’s
renewal application proceeding
(Log 2001-362); according to SCLI, the purpose of this was “to
maintain
the record for 2001-362.”
By virtue of SCLI’s action, the non-conforming redesign
was once again pending as a
permit
application before the Agency.
The Agency
informed SCLI that itwould
be necessary to
deny the renewal application
(Log 2001-362), because the non-conforming design had already been adjudicated to be
unacceptable, never having been approved in local siting proceedings.
Thereafter, on February
7,
2003, SCLI withdrew the request for development permit approval which it had
incorporated
into the operating permit
renewal proceeding (i.e., it withdrew the 1999-381 record from 2001-
362).
At that time, therefore,
S~LI
had no
permit application pendingwhatsoever with respect
to its proposed expansion.
In April 2003, SCLI submitted the instant permit application, Log No. 2003-113, which
purports to resurrect the facility design which SCLI had abandoned earlier in its Log No. 1999-
381
submittals.
To briefly reiterate, the Log No. 1999-381 was submitted nearly three (3) years following
the Saline County
Board’s November 1996 siting approval.
In August 2000, SCLI
superccdcd
that permit request and
replaced it with a request for approval of a facility which had never
received siting approval.
The Agency denied that request on January
4, 2002, and for the
following nearly three (3) weeks no permit application was pending at all relative to the area
designated for the new facility.
On January 24, 2002,
SCLI
purported
to incorporatc (by
5
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reference) the earlier submittal from Log No. 1999-361, but, on
February
7, 2003,
it withdrew
that submittal as well.
Finally, in April 2003
SCLI once again submitted an
application
purporting to seek permit approval for the geographic area that was the subject matter of the
November 1996 siting approval.
Accordingly, from at least August 2000, when it supcrceded
the
original permit application with the design that had never been approved by Saline
County,
until at leastApril 2003, virtually
rio
permit application of SCLI was before the Agency that had
ever been approved through the local siting process.
Saline County’sRole in Landfill
Issu~
The courts, and this Board, have long
recognized thatSection 39.2 of the Environmental
Protection Act, 415
ILCS
5/3
9.2, represents the singular most important stage of the continuum
of siting and approving pollution control facilities such as landfills:
The General Assembly recognized that it was important that
a county board or the
governing body
‘ofa municipality have the opportunity to investigate and examine
the past operating history and past record of convictions and violations of an
applicant.
The importance of site approval was previously recognized
in the case
of
Kane County Defenders, Inc.
v. Pollution ControlBoard,
139 Ill. App. 3d
588,
593,
93
111. Dec. 918, 487 N.E.2d 743 (1985), which pointed out:
“This broad
delegation of adjudicative power to the countyboard clearly reflects a legislative
understanding that the county board hearing, which presents the only opportunity
for public comment on the proposed site, J~
th~
most criti~a1
stage
pf
the landfill
~jj~
approval process.”
We agree that the, local site approval process is the most
critical stage of the process.
Medical Disposal
ServiceL~Jnc,V.
Environmental Protection Ag~ncy,
286 Ill. App. 3d 562,
568,
677 N.R2d 428, 432 (1~
Dist.
1997) (emphasis added).
Significantly, when Saline
County granted siting approval in 1996, it created no property
right in SCLI, but to
the contrary only created a condition that
is required before the Agency
could issue a permit:
“Requiring renewed applications for local siting approval does not prevent
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the transferability of an
owner’s property right because siting approval is not a property right.
See
Foster & Kleiser v.
City
ofChicago,
146 Iii. App. 3d
928, 934,
100
IlL Dcc. 481, 497 N.E.2d
459
(1986)
(even permits are only privileges from which
rio
vested property rights attach).
Permits in general can conceivably be assigned, but the local siting approval given pursuant to
the Act is only a condition that is required before permits can be issued.
While a permit gives
the holder specified rights,
local siting approval only gives
the specific applicant the right to
apply for a permit.”
Medical Disposal Seryice~,
286
III. App. 3d at
569,
677 N.E. 2d
at 433.
The
Medical Disposal.Se~ices
court also noted that requiring siting applicants to return for new
siting approvals is not unfair or duplicative:
“Requiring MDS
to
another review by Harvey
the
local siting authority
will not be needlessly duplicative
because it
is essential to implement the
legislative intent of providing meaningful local approval of the siting of pollution-control
facilities.”
286 Ill. App. 3d at 569,
671
N.E.2d at 432.
The Environmental Protection Act should not be read in a vacuum, but instead should
be
considered in conjunction with other statutes that pertain to
a county’s pollution control facility
interests.
In particular, the Illinois Solid Waste Planning and Recycling Act,
415
ILCS
15/1 et
seq., requires that counties (including Saline County) develop and maintain a plan for the
management ofwaste generated within their boundaries.
See 415 ILCS
15/4(a).
Indeed, the
General Assembly has identified cpuntic~s,and not any other gov~rnmental
unit,
as primarily
responsible for planning for solid waste management
facilities!
Among other things, such plans
must identify existing facilities available for waste management,
~n4
must also identify facilities
that are proposed during the next 20 years.
~
415
ILCS
1514(c)(2)
and (3).
Perhaps most
importantly, each county must describe the “time schedule for the development and operation of
each proposed facility or program” forwhich
planning is being conducted.
415 JLCS 15/4(c)(5).
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The counties must also identify “potential sites within the county where each such...fadility
would be located or an explanation of how the sites
will be
chosen.” 415 ILCS
15/4(c)(6).
These
plans are required by law to
be updated and
revised every five years. 415 ILCS
15/5(c).
In complying with the solid, waste planning requirements, counties are expressly required
to follow the waste hierarchy set forth in the Illinois Solid Waste Management Act
(~
415
ILCS
15/4(a)),
section 2(d) of which specifically places landfilling asjj~~
in the preferred waste
management
strategies.
415 ILCS 20/2(b).
Finally,
the county’s significant role in overall waste management
planning is recognized
even in
the siting statute itself.
The eighth siting criterion, in fact, specifically requires siting
applicants to assure that their proposed facility is consistent with the solid waste management
plan approved by a particular county. 415 ILCS
5139.2(a)(viii).
The
Statute Declares
SCLI’s
Sitip,g Approval R~sExpired
The very words of the Environmental Protection Act support the Agency’s decision to
deny SCLI’s permit application for the reason that
the local siting approval had expired.
Specifically, the Statute provides as follows:
A local siting approval granted under this Section shall expire at the end of.
.
.3
calendaryears from the date upon which it was granted...unless within that period
the applicant has made application to the Agency for a permit to
develop the site.
415
LLCS
5/39.2(f).
On its face, this
statutory language reveals that,
unless SCLI had sought
permitting for
the approved facility within three (3) years after the siting approval was granted, the siting
approval expired.
Here SCLI neither sought a permit for the facility which was approved, nor a
permit for the ~
upon which the facility was located,within the time required by
law.
The
siting has therefore expired.
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SCLI appears to
argue that the Statute
requires only that
a small portion ofthe approved
airspace be subject to
a permit application, which will
then keep alive the siting approval for the
entire sited airspace.
Thus, SCLI claims that a small portion of sited airspace was the subject of
a permit application filed only a month after the siting approval was granted in
1996, which has
subsequently been permitted and
constructed; this circumstance,
according to
SCLI, has rendered
the
entire remainder of the sited airspace immune from
expiration pursuant to
Section
39.2(f).
SCU’s argument fails for a number of reasons.
First, although for purposes of
this
argument Saline County will assume the correctness ofSCM’s
assertions, in point of fact
SCLI
has utterly failed
to prove what portion of the
1996 airspace was permitted, or when all of
that occurred.
SCLI
does no more than point to some legal
conclusions included in the record,
hut ofcourse
legal conclusions cannot be admitted to, and in any event, legal conclusions
without a factual basis or framework are meaningless.
In short, this record does not support that
any
portion of the facilities subject to
the 1996 siting approval were ever permitted, and
since the
burden is upon SCLI, this factor alone should warrant affirmance ofthe Agency permit
denial.
Second, even assuming that proofexists that this happened, SCLI’s argument overlooks
the wording of the statute itself.
Curiously absent from SCLI’ S argument, in fact, is
recognition
that the statute
requires an application “for a permit to develop
th~
~it~”(emphasis added).
The
statute does~
say that seeking a permit for a portion of the site is acceptable, or in
any other
way supports SCLI’s tacit assertion that piecemeal development permitting is acceptable under
the siting statute.
The General Assembly understands the difference between the entire site and
portions of the site; with respect to facilities for which a development permit was issued
before
November 12,
1981 (the effective date of Section 39.2’s siting process), Section 39(c) (4th
paragraph) states:
“If
an operating permit has not been issued by the Agency prior to August
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1989 for any portion of the facility, then the Agency may not issue or renew any
development permit nor issue an original operating permit for any portion of such facility unless
the applicant has submitted proofto the Agency that the location of the facility has been
approved by the appropriate county board or municipal governing body pursuant to Section
39.2
of this Act.”
415
ILCS
5/39(c).
In other words, even the landfills grandfathered
in
without siting
approval in
1981
were required to be
operating by 1989--any portion not operating had to go
through siting approval!
Hence, the Environmental Protection Act clearly recognizes
that
Section 39.2(f) requires a development permit application for the entire approved ~
and not
merely for a portion of it.
This interpretation is borne out, as well, in the words employed in the siting statute itself.
The word “site,”
in fact, is a defined term:
“‘site’ means any location, place,
tract of land, and
facilities, including but not limited to buildings, and improvements used for purposes subject to
regulation or control by
this Act or regulations thereunder.” 415 JLCS
5/3.43.
Section 39.2, of
course, requires siting approval for any new “pollution control faciljty,” which is defined to
include
“any waste storage site, sanitary landfill,” etc.
(415 ILCS
5/3.32).
Moreover,
a “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)(2)).
Section
39.2
repeatedly utilizes both the term “facility” and the term “site.”
Moreover,
Section 39(c),
415
ILCS
5/39(c),
requires as a precondition
to permitting proof “that
the location
ofsaid facility has been approved by the County Board” in accordance with Section 39.2.
The
third paragraph ofSection
39(c)
discusses a “facility for which the proposed ~
is located”
(emphasis added), and Section 39(k) provides that a development permit for “any facility or site”
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will expire unless action is
taken within
2 years to develop such facility or site. 415 ILCS
5/39(k).
Putting these statutory provisions together, it is clear that a “site” is made up of one or
more “facilities.”
When obtaining approval, though, the “site” is
the place where the facilities
will be located, with thus determines a number of critical matters, including which body will bc
the siting authority for the facilities,
who is entitled
to notice,
etc.
In any event, Section 39.2(f)
clearly requires that
a development permit be sought for the entire ~
and not merely for
discrete “facilities” within such a
Site
for which siting approval may be granted (let alone only a
portion of a “facility”, as suggested by SCLI).
Notably, SCLI’s interpretation would work substantial mischief upon the General
Assembly’s obvious intentions in
carefully crafting
the scheme that exists.
As discussed above,
counties (including Saline County) play a lead role in overall planning activities, and in approval
of specific facilities that will serve waste disposal purposes within their confines.
Countics arc
required by law to remain current and actively involved in activities which impact the
development ofpollution control facilities, and must continually update planning documents to
address developments as they occur.
In SCLI’s view, once a siting applicant has achieved basic
siting approval, the county should be removed from involvement
by the mere expedient of the
siting applicant seeking development for a small discrete portion of its
landfill.
Indeed, that
is
the very thing that has happened here; according
to SCLI, the mere fact that it has (allegedly)
sought
a
development permit for a very small portion ofthe sited airspace p.recludcs either Saline
County or the Agency from interfering with SCLI’s future
intentions with respect to
the
remainder of its
airspace.
This would allow SCLI to
“mothball” its airspace indefinitely until it
can demand a monopoly market, or other market conditions solely under its review and control.
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This is, of course, in
direct contradiction
to the General Assembly’s expectation that counties,
and not siting applicants or even the Agency, will play the primary role in solid
waste
management planning!
Again SCLI has attempted to defend Its actions by claiming that the facts before this
Board
do not reveal any such “mothballing,” but instead reflect “diligent efforts.”
Even if this
were true, it would not be relevant in light of the express statutory language
and the clear
legislative intent. Moreover, SCLI’s claim is ludicrous in light of the facts.
It has repeatedly
attempted to obtain permitting for a facility that has never been approved by the Saline County
Board.
This first happened, of course, in
the earlier permit appeal case.
Then, even after that
permit was finally denied by the Agency, SCLI resubmitted the same plan to the Agency,
apparently for another review.
Even in this very proceeding, in fact, SCLJ is still attempting to
secure Agency approval for features never approved by the Saline County Board
As Joyce
Munie
testified, even if this permit had been granted, a condition would have been imposed
requiring SCLI
to seek siting approval if it ever wanted
to develop the berm as landfill airspace--
such a condition was necessary because SCLI had
included language in its permit application
purporting to retain the “right” to seek approval forpermitting that airspace at a later date! (Tr.
64).
Hence, far from having diligently sought permitting for the airspace it had sited in
1996,
SCLI has played games with the Agency and this Board,
attempting to
permit facilities
which
never have received siting approval.
Its suggestion that those efforts should be counted
in its
favor with respect to the facility that was sited makes no sense.
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LIle
Board’s and Appellate Court!
?edicai Disposal Services Cases Control
This
Decision
SCLI does not
even mention in its brief the Medical
Disposal
Seiyices cases
decided by
this Board and the appellate court.
This is clearly an
intentional oversight, because the Medical
~isposa1 Sejyices decisions control most of the salient issues in this case.
This Board’s Medical DisposaLServices. Inc.
v. Tllinoi&Environmental Protection
case was decided on May 4,
1995
(PCB
95-75
and PCB
95-76
(cons.)).
A company
known as Industrial Fuels& Resources/Illinois, Inc. had been denied local siting approval for a
new medical waste
treatment facility to be located in Harvey, Cook County, Illinois;
by opinion
entered March 19,
1992, the appellate court reversed
that decision and ordered that the siting
approval be granted.
This Board thereafter entered an order dated June
25,
1992, which
-
indicated that the Board’s order itself would stand
as proof that local siting had been approved,
and that Industrial Fuels & Resources/Illinois, Inc. could proceed with the permitting process.
Thereafter, MDS purchased the siting approval from Industrial Fuels
&Resources/Illinois, Inc.,
and submitted both air and land construction permit applications to the Agency, relying upon the
Board’s June
25,
1992 order as proof of siting approval.
At
first,
the Agency assured MDS
that the siting approval was transferable, and that MDS
therefore would qualify for the requested permits.
As summarized by the appellate court, “aJn
assistant counsel for the Agency responded in
a letter dated January 10, 1994, that,
consistent
with previous interpretations in similar situations, the Agency’s policy remained that siting
approval was location specific so that it remained with land
upon sale.
The letter also
stated that
the siting approval granted to Industrial Fuels was valid for MDS’ development of the facility.”
M~icalDisposal $ervicesjnc.
v.
III
jripjs
Envirpnmerj~a1
Protection.Agcncy,
286
Ill. App. 3d
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562, 564,
677 N.E.2d 428, 429
(1” Dist.
1997).
The appellate court continued
with its discussion
of the factual background:
In May 1994 MDS submitted applications to the Agency for permits to
construct
the facility.
-In September the Illinois Attorney General’s office wrote to MDS
that Harvey had not granted local siting approval to MDS.
In October the Illinois
Attorney General’s office wrote a letter to the general counsel for the Agency
that
its view was that local siting approval was “not only site-specific but facility-
specific
and
applicant-specific.”
On January 13,
1995, the Director of the Agency
wrote to the Attorney General that the two agencies had differing interpretations
of the siting approval law, but on Januaiy 31
the Agency denied MDS’ permit
-
applications.
286
IlL App. 3d at
564-65,
677 N.E.2d at 429.
In considering MDS’
subsequent permit appeal,
this Board noted that the Environmental
Protection Act did not specifically address the issue,
but that case law, as cited above, clearly has
found that local siting bodies constitute the most critical phase of the landfill site approval
process
(~
Kane County Defenders
v.
Pollution Control Board,
139 Ill. App. 3d
588,
487
N.E.2d 743
(2d Dist.
1985) (quoted at MedicaLDisposal Services, ~
PCB
95~75
and
95-76
(cons.), slip op. at 7)).
This Board noted that allowing siting approval transference would
“bypass the scrutiny of the hearingprocess at the local level, it would deprive the local siting
authority of its
statutorily defined right...”
to consider the relevant statutory factors.
This Board
also considered legislative amendments which had specifically allowed a certain degree of
scrutiny by the local decision making body into an applicant’s background, and
concluded that
the statute mandated that the siting be considered specific to an individual applicant.
The Board noted that “the Agency was correct in its denial of the construction permits.
Section 39.2ff)
ofj
the Act provides in pertinent part that the applicant has two years from the
date upon
which siting approval
is obtained in which
to make application to
the Agency for
permits to develop the site.
If the siting applicant does not
do so, the siting approval expires.
14
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Industrial Fuels made no such application, and no permit has yet been issued to the
siring
applicant, i.e., Industrial Fuels.”
PCB 95-75 and
95-76
(cons.), slip
op. at
5-6.
The factors guiding this Board’s M~dica1
Disposal
Services decision compel
a similar
ruling here.
The statute
clearly required
that
SCLI file its permit application for the entire ~1t~i
within three years following the siting approval (notably, SCLI has failed to provide any
evidence of
any
appeal process or other statutory-approved means of extending the expiration
deadline).
The three year limitation, as interpreted by Saline County and
the Agency,
is clearly
in harmony with the obvious legislative intent that siting approvals
be relevant to
current
conditions,
that counties maintain active and up-to-date involvement with respect to solid waste
planning issues, and that siting applicants diligently proceed to obtain permitting for the facilities
that have been approved.
In M~clical
Disposal Services, the applicant that sought the permit was
riot the applicant who had received siting approval.
Here,
although the applicant was the same,
the facility differed in that the permit facility championed by SCLI in the earlierpermit
appeal
is
not the same as the facility that was approved by the Saline County Board.
As was the ease in
Medical DispQsa~S~ryi~s,
the applicant attempted to
obtain siting approval for something that
had never been approved by the local body, and the Agency, followed by
this Board,
disallowed
that attempt.
(SCLI’s chance to obtain
development permitting for the 1996 sited airspace had
therefore expired long before this Board’s earlier permit appeal decision).
There
is no prejudice to
SCLI.
If its proposed-facility is viable, and will meet all of the
environmental standards (as. SCLI has constantly claimed), it need only prove as much
to the
Saline County Board, based upon current circumstances and conditions.
Just as in Medical
Disposal Services where this Board noted
that the new applicant’s background would
be of
relevant concern to the siting authority, so, too, would
developments which have occurred in
the
15
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oearly eight years since the
1996 siting approval, which would include
matters relevant to the
~traffic”criterion, the “consistency with
county plan” criterion, the “health, safety and welfare”
criterion, and many of the other siting criteria over which the Saline
County Board has exclusive
jurisdiction
(~
415
ILCS
5/39.2(a)).
As in MedicaLDisposal Services, the
~
wayto
give life
to the clear statutory intent is to send the SCLI facility back to the Saline County Board for a
new review (as the transcript of the hearing states, only one current County Board member was
on
the County Board
at the time of the
1996 siting).
Mild Pavelonis, a former County Board member (a veteran of SCLI’s 1996 siting
hearings), explained the context
very well:
My question is:
How many applications can Saline
County Landfill, Inc.
file and
have denied before the siting expires?
The first application was filed and
the permit was denied.
3 years have passed.
Excuse me.
At that time the landfill
should have been require.d
to go back for another siting.
There is
a reason why there is limitations.on a number of years they have
to file the permit.
The situations change.
The nine criteria addressed in the
application approval involved health and safety consideration, market
consideration,
traffic consideration
and property value consideration.
Many of
these things have changed over the 8-year period of time.
They have said the
reason is there are ground water questions.
Questions about more than one fault
line.
Questions about property values, and questions about the roadway.
The
landfill may be able to
address all these questions that have been mentioned in
the
newspaper.
But the point is, they should have to address the question to that
any
decisions made by the County Board will be fully informed decisions made on
consideration of the nine criteria and
current circumstances.
(Tr. at 8 1-82).
The appellate court largely followed this Board’s reasoning
in its opinion affirming the
Board’s order.
Like this Board, the appellate court noted the pivotal nature of the local siting
proceedings, and the
Court also
noted the lack of any prejudice to
the siting applicant, who
simply needed to resubmit the facility for a new review, particularly since that was what the
statute required:
“Requiring MDS
to submit to
another review by Harvey will not be needlessly
16
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duplicative because it is essential
to implement the legislative intent of providing meaningful
local approval of the siting of po1lution~controlfacilities.
It may be that a change in
ownership
will not in every case significantly change the operation ofa facility, but it is also possible,
if not
more likely,
that the management would change when the ownership changes.” 286
111.
App. 3d
at
569,
677 N.E.2d at 432.
Similarly, the mere passage of time may not in all cases affect the
issues relevant for local siting consideration, but in most cases,
clearly the passage of time will
have
a significant impact on
those issues.
The appellate
court also
considered arguments very similar to those made by SCLJ
concerning the alleged change in Agency practice that preceded the permit denial in
this case.
As
here, the permit applicant in Medical Disposal Serv~c~
complained long and hard that the
Agency had misled it into proceeding with the permit application process, and
then at the last
moment changed its mind.
The appellate
court unequivocally rejected these arguments, noting
among other.tbings that applying estoppel would be
inappropriate “because it would
defeat the
statutory intent to
give approval powers to localities in
a matter concerning public health and
safety.” 286 III. App. 3d at
570,677
N.E.2d at 433.
Here,
too, SCLI’s arguments would at best
penalize Saline County for mistakes made in other unstated and unidentified cases by
the
Agency.
MDS
also requested that the court extend the expiration deadline of Section 39.2(f),
to
provide MDS
the additional
time
necessary
to submit a permit application supported
by local
siting approval, which the court rejected, holding that “cjquitable
tolling cannot be applied to
toll the two-year expiration period to obtain local siting approval.”
Ich
Further, the court held
that, even if some tolling principles would theoretically be available,
they refused to
do so to
benefit MDS:
“MDS
will suffer a delay In seeking to obtain its permits because of the change in
17
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the Agency’s policy, but MDS was not
prevented by the Agency from seeking local siting
approval....Tolling
of the two-year approval period will not prevent the permanent expiration
of any right... .Here
the Agency’s conduct did not forever cut off MDS’s ability to proceed with
the development of the facility.
MDS could before,
and may still now, seek local, siting approval
from Harvey.”
286111. App. 3d at 571, 677 N.E.2d
at 433-34.
That is all Saline
County wants here.
As Saline County has consistently stated, it takes
no position on any issues concerning a siting application or other requests that SCLI may make
in the future.
At present, though, SCLI
has no
“live” siting approval with which to obtain any
permitting, and this Board should affirm the permit denial of the Agency.
This Boatd,~s
Dicta
In PCB 02-108 Is Irre~eypnt
SCLI places most of its chips on
the argument that a passing mention in
the PCB 02-108
May
16, 2002
decision, which even identifies itself as dictum, somehow controls this case.
The
argument is meritless, as is the rest of SCLI’s appeal.
This Board’s May 16, 2002
ruling in SCLI’s earlier permit appeal,
drafted by former
Board member C.A. Manning,
included as its final discussion the following:
Finally, though it has no bearing on the Board’s decision today, and the Board
makes no ruling on it, the patties do not dispute that SCLI can avoid returning for
siting if it submits an amended permit application, proposing
a wider interior
separation
berm,
100 feet wide instead of
50.
The Agency explained to SCLI
during the permit application process that SCLI could have proposed widening
the interior berm to
100 feet.
Doing so could have addressed the Agency’s
concerns over compliance with
the Board’s landfill regulations
on stability and
groundwater monitoring, while maintaining the separate units of the landfill as
proposed to the County Board in 1996.
Though the Agency explained
to SCLI
that
eliminating the interior berm could address concerns over compliance with
the Board’s regulations (the path SCLI chose), this had no effect on SCLI’s
obligation under Section 39(c) of the Act to submit proof of local siting approval.
PCB 02-108, slip op. at 19 (May 16, 2002).
18
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SCLI relies prImarily on the above quote as support for its
untimely permit application.
Thc reliance is woefully misplaced.
First, on its face the paragraph is pure dictum, not relevant to any issue being decided,
and
in fact not even ruled upon
by the Board itself!
Under these circumstances, it is not even
clear why SCLI cites to the language.
Moreover, no mention is made in
any published
Board
opinion in PCJ3 02-108 that
Section 39.2(f) was of any interest or relevance in that case at all.
In fact, it wasn’t, and that
is
why the Board was so clear that the issue had
no bearing on the decision and was not making any
ruling.
Similarly, the statement can provide no shelter for SCLI here.
Finally, it is clear that this Board can neither expand nor contract
the authority granted by
the General Assembly.
Arid
S~LI
itself concedes that the question raised in this case is
one of
law (statutory interpretation).
Whatever may have been said in the earliercase cannot change
what the statute means--it means what it means--and therefore the language has no relevance to
the issue now to
be
decided.
SCLI
also claims that Saline County’s
“failure” to have appealed the dictum somehow
binds it in this case to the same result.
This is indeed a
curious argument.
Pursuant to Section
41(a) of the Environmental Protection Act, 415 ILCS
5/4l(a),
on~y
a
“person who has been
denied a.. .perrnit under this Act,” or a “party adversely affected by
a final order or determination
of the Board,” could seek judicial review (i.e., an appeal).
Saline County ~
PCB 02-108.
There is no such thing as appealing from non-binding dictum, particularly where
the Board itself
stated that the issue “has no bearing on the Board’s decision today, and the Board makes no
ruling
on it.
. .“
Simply put, there was no basis or means for appealing the language in question,
and no inferences can legitimately be drawn from the circumstances.
(Notably, SCLI cannot,
19
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and does not, argue that it relied on that dictum--the dictum on its face said
it was not
to
be relied
on
(and so any such reliance was by definition unreasonable),
and SCLI took no new action on
its permit as a result of that language.
To the contrary, it waited until February
2003 to withdraw
the bad permit from its
renewal application, and
it was not until April 2003--nearly
a year after
this
Board spoke, and a full seven years after siting approval--that SCLI submitted
a “new”
application that supposedly conformed with the siting approval).
ConcLusion
Intervenor Saline County requests that this Board affirm the permit denial of Respondent
Illinois Environmental Protection Agency.
SCU’s remedy, if any, is to
obtain a fresh siting
approval from the Saline County Board, after which it will be free once again to
seek
developmental permitting.
Respectfully submitted,
COUNTY
OF
SALINE
Intcrvcnor,
By
Its attorney,
HBDINGER LAW
OFFICE
By___
L~tephen7’Hedtnger
Hedinger Law Office
2601 South
Fifth Street
Springfield,
IL 62703
(217)
523-2753
phone
(217)
523-4366
fax
20
TOTOL P.22
~PR-O5—2004
17:10
FROM
HEDINGER LRU OFFICE
TO
13128143669
P.01/2~
RECEUVE
D
CLERK’S OFFICE
APR 05
2004
HED~NGER LAW
OFF1C~ATEOFILLINOIS
ution Control Board
2601 South Fifth Street
Springfield, IL
62703
Telephone: (217)
523-2753
• Facsimile: (217)
523-4366
Hedinger@cityscape.net
Facsimile Transmittal
Sheet
Date: April
5,
2004
l
No. ofpages including this page:
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Company:
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Fax #:
312-814-3669
RE:
Saline County Landfill,
Inc.
v.
TEPA
Original to follow
by mail:
~
yes
Eli
no
From: Stephen
F. Hedinger
MESSAGE:
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APPUES
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CHECKED ~
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