ILLINOIS POLLUTION CONTROL
BOARD
December 1, 1994
SOLVENT SYSTEMS INTERNATIONAL,
)
)
Petitioner,
)
v.
)
PCB 94—179
)
(Siting Review)
VILLAGE OF HAMPSHIRE,
)
)
Respondent.
MICHAEL F.
KUKLA APPEARED ON BEHALF OF PETITIONER, and
MARK SCHUSTER,
of MEYERS, SCHUSTER &
PITCHER, APPEARED
ON
BEHALF
OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD (by
3.
Theodore Meyer):
This matter is before the Board on a petition
for
review,
filed by Solvent Systems International, Inc. (Solvent Systems) on
June 21, 1994. Solvent Systems seeks review, pursuant to Section
40.1 of the Environmental Protection Act (Act) (415 ILCS 5/40.1
(1992)), of one condition imposed by the Village of Hampshire as
part of the Village’s decision approving site location of a non-
hazardous waste transfer station. The Board held a public
hearing on the petition on September 2, 1994, in Hampshire. No
members of the public attended that hearing.
The Board’s responsibility in this matter arises from
Section 40.1 of the Act. The Board is charged, by the Act, with
a broad range of adjudicatory duties. Among these is
adjudication of contested decisions made pursuant to the local
siting provision for new regional pollution control facilities,
set forth in Section 39.2 of the Act. More generally, the
Board’s functions are based on the series of checks and balances
integral to Illinois’ environmental system: the Board has
responsibility for rulemaking and principal adjudicatory
functions, while the Board’s sister agency, the Illinois
Environmental Protection Agency (Agency) is responsible for
carrying out the principal administrative duties, inspections,
and permitting. The Agency does not have a statutorily-
prescribed role in the local siting approval process under
Sections 39.2 and 40.1, but makes decisions on permit
applications submitted if local siting approval is granted and
upheld.
BACKGROUND
Solvent Systems operates a hazardous waste transfer station
located within the Village. As part of its operations, it
2
receives oil filters. The filters are crushed and the steel is
then shipped to a recycling center. The used oil is stored for
transport to a recycling facility. The non—hazardous operations
constitute 5 of Solvent Systems’ business. It is the non-
hazardous operations that are the subject of Solvent Systems’
application for siting approval. (ADD CITES.)
Solvent Systems filed its application for siting approval
with the Village on November 19, 1993. The Village held public
hearings on that application on March 9, 10, and 21, 1994. On
May 20, 1994, the Village granted siting approval, subject to
nine conditions. (C1—C15.) Solvent Systems agrees to eight of
the nine conditions, but challenges the imposition of Condition
six. That condition states:
The company shall pay to the Village to reimburse it
for the costs of the hearing, including its
consultations with Terracon Environmental Systems,
Inc., engineers, in the amount of $3,120.35 and
Seyforth, Shaw, Fairweather, & Geraldson, attorneys in
the amount of $17,369.40;
and Meyers, Schuster &
Pitcher P.C. in the
amount of $5,031.75.
(C12.)
STATUTORY FRAMEWORK
At the local level, the siting process is governed by
Section 39.2 of the Act.
Section
39.2(a)
provides that local
authorities are to consider as many as nine criteria when
reviewing an application for siting approval. These statutory
criteria are the only issues which can be considered when ruling
on an application for siting approval. Only if the local body
finds that all criteria are satisfied can siting approval be
granted. In this case, the Village found that all of the
criteria have been met. (C2—C5.) Therefore, there are no issues
regarding the criteria before the Board in this case.
Additionally, the Board is authorized to review the areas of
jurisdiction and fundamental fairness. Section 40.1 of the Act
requires the Board to review the procedures used at the local
level to determine whether those procedures were fundamentally
fair. (E & E Hauling, 451 N.E.2d at 562.) Solvent Systems has
not raised any issues relating to either jurisdiction or
fundamental fairness. Based on the record, the Board finds that
the procedures at the local level were fundamentally fair.
DISCUSSION
The only issue in this case is whether the Village has the
authority to impose a condition requiring the payment of expenses
incurred during the siting process.
3
Section 39.2(e) of the Act states that “in granting
approval for a site the
...
governing body of the municipality
may impose such conditions as may be reasonable and necessary to
accomplish the purposes of this Section and as are not
inconsistent with regulations promulgated by the Board.” (415
ILCS 5/39.2(e) (1992).) Section 39.2(k) provides that a
“governing body of a municipality may charge applicants for
siting review under this Section a reasonable fee to cover the
reasonable and necessary costs incurred by the
...
municipality
in the siting review process.” (415 ILCS 5/39.2(k) (1992).)
Solvent Systems does not challenge the Village’s authority
to assess fees, but alleges that the Village cannot do so as a
condition to siting approval. Solvent Systems admits that it is
clear that the Village has the authority to be reimbursed for its
expenses, but contends that in the absence of an ordinance
requiring an application fee, the Village’s sole remedy is to
file suit in circuit court to insure payment for its expenses.
Solvent Systems cites Christian County Landfill1 Inc. v.
Christian County Board (October 18, 1989), 104 PCB 369, PCB 89-
92, for the proposition that conditions imposed by local
decisionmakers must be reasonably related to the nine criteria
set forth in Section 39.2(a), and argues that the reimbursement
of legal and engineering fees is not related to those criteria.
Additionally, Solvent Systems maintains that because the
Board’s review is limited to the record before the local
decisionmaker, which cannot be supplemented, it is foreclosed
from challenging the reasonableness of the fees imposed by the
Village. Solvent Systems states that there is no testimony in
the record as to the fees imposed, and that the Village simply
imposed the fees after the record was closed. Thus, Solvent
Systems argues that the unilateral imposition of fees, when the
applicant does not have the right to question the amount, is a
violation of due process. Solvent Systems believes that the
fundamental fairness hearing before the Board, as provided by
Section 40.1, is not the appropriate forum in which to challenge
the reasonableness of the fees.
In response, the Village contends that condition six is
completely justified and authorized by law. The Village notes
that Section 39.2(k) provides for it to charge a reasonable fee
to cover its costs, and states that instead of charging Solvent
Systems a fee when the petition was filed, it assessed the exact
legal and engineering costs incurred in the review process. The
Village further maintains that since Section 39.2(k) specifically
provides for recovery of costs, the imposition of a condition
regarding those costs
is clearly within the requirement of
Section 39.2(e)
that conditions must be reasonable and necessary
to accomplish the purposes of Section 39.2. The Village also
contends that nothing in Section 39.2 requires it to collect a
fee in advance, contrary to Solvent Systems’ claim. Finally, the
4
Village states that it does have an ordinance requiring that any
applicant for development shall reimburse the Village for its
costs.
After considering the parties’ arguments, the Board finds
that condition six, requiring payment of legal and engineering
fees, is reasonable and necessary to accomplish the purposes of
Section 39.2, and therefore allowable under Section 39.2(e).
Subsection (e) specifically allows the imposition of conditions
if reasonable and necessary to accomplish the purposes of Section
39.2, and subsection (k) specifically allows a local
decisionmaker to charge applicants a fee to cover the
decisionmaker’s expenses. We believe that the plain language of
those two subsections results in a conclusion that a condition
requiring the payment of actual expenses is authorized by Section
39.2(e). We find nothing in Section 39.2 that requires a local
decisionmaker to charge an application fee “upfront”.
Although Solvent Systems cites the Board’s decision in
Christian County Landfill for the proposition that conditions
must be reasonably related to the nine criteria in Section
39
•
2(a), we believe that that decision is properly read more
broadly. Only once in that fifteen page opinion did the Board
use the phrase “conditions must relate to the Section 39.2(a)
criteria.” In the rest of the opinion, the Board repeatedly
restates the statutory language, that conditions must be
reasonable and necessary to accomplish the purposes of Section
39.2. The Board cannot narrow the statutory provisions. Those
provisions specifically allow for conditions necessary to
accomplish the purposes of the section, without limiting the
inquiry to the nine criteria of subsection (a). Therefore, we
reject any interpretation of Christian County Landfill that
limits conditions to those related to the criteria in subsection
(a).
In sum, we find that the Village had the authority to impose
condition six, requiring the payment of legal and engineering
expenses incurred during the local siting process.’
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby upholds the Village of Hampshire’s
imposition of condition six to its May 20, 1994 grant of siting
approval to Solvent Systems, Inc.
1
We note that Solvent Systems specifically did not
challenge the reasonableness of the fees. (Reply Br. at 4.)
5
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the ~
day of
~‘
~
,
1994, by a vote
of
7-0 .
Illinois
Control Board