ILLINOIS POLLUTION CONTROL BOARD
December 14, 1994
AMERICAN TREE SERVICE, INC.,
)
an Illinois Corporation,
Petitioner,
v.
)
PCB 94—43
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
JAMES R. ENLOW OF SCOTT and SCOTT APPEARED ON BEHALF OF
COMPLAINANT;
JOHN
3.
KIM and KYLE NASH DAVIS, ASSISTANT COUNSELS of the ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY APPEARED ON BEHALF OF RESPONDENT;
ERIC M. SCHWING OF SCHWING and SALUS, APPEARED ON BEHALF OF VAL-E-
VUE IMPROVEMENT ASSOCIATION AS
AMICUS CURIAE.
OPINION AND ORDER OF THE BOARD (by C. A. Manning):
This matter is before the Board on a petition for review of
an open burning permit with conditions issued by the Illinois
Environmental Protection Agency (Agency) to American Tree
Service, Inc., (American Tree) for its facility located in
Sangamon County. The petition was filed by American Tree on
January 25, 1994 and on February 3, 1994 an amended petition was
filed. Specifically, American Tree objects to and requests the
Board to review its open burning permit No. B9309040.
On March 28, 1994 the Val-E-Vue Improvement Association
(Association) filed a motion to intervene as a respondent in this
proceeding pursuant to 35 Ill. Adm. Code 103.142. On April 1,
1994 the Board denied the Association’s motion but allowed the
Association to file an ainicus curiae brief at the close of the
hearing pursuant to the briefing schedule as developed by the
hearing officer. A hearing was held on August 18, 1994 in
Springfield, Illinois. At hearing the parties agreed to file
stipulated facts and cross motions for summary judgment. The
stipulated facts were filed on September 15, 1994. The Agency’s
Motion for Summary Judgment was filed September 22, 1994 and
American Tree’s Motion for Summary Judgment was filed October 5,
1994. The Association’s amicus curiae brief was filed October
11, 1994. Additionally, on September 13, 1994 the Springfield
Airport Authority (Authority) filed a motion for limited
appearance to submit a written statement. We grant such motion.
2
Issue Presented
The issue on appeal before the Board is whether an open
burning permit can be issued without American Tree first having
secured local siting approval pursuant to Section 39 of the Act.
(415 ILCS 5/39 (1992).) The Agency argues that the following
condition is necessary to take American Tree out of the
requirement for local siting and insists on this condition in the
permit:
7. Only landscape waste from American Tree Service Inc.’s
own activities may be burned. Specifically, this is
landscape waste generated or produced by American Tree
Service Inc.’s own employees. However, for leaves to
constitute landscape waste from America Tree Service Inc.’s
own activity, leaves must be raked and gathered by American
Tree Service Inc.’s employees. Further, American Tree
Service Inc.’s activities do not include landscape materials
produced or bagged by other individuals or subcontractors.
The specific issue before us is whether the permit can be
issued without condition No. 7 (as American Tree desires) or with
condition No. 7 (as the Agency proposes). The underlying issue
is whether the landscape waste incinerated at American Tree’s
facility constitutes “waste” under Section 3.53 of the Illinois
Environmental Protection Act (Act). (415 ILCS 5/3.53 (1992).)
Stipulated Facts
The parties have stipulated to all relevant facts, which are
summarized as follows.
American Tree is a corporation, duly organized and existing
under the laws of the State of Delaware, with its principle place
of business located at 1701 Camp Lincoln Road, Springfield,
Sangamon County, Illinois. American Tree’s registered office is
located at 1010 North Park, Springfield, Sangamon County,
Illinois. American Tree conducts open burning of landscape waste
with the use of an air curtain destructor. The facility is
located in an area in which the unit of local government is
Sangamon County, and the registered office is located in an area
in which the unit of local government is the City of Springfield.
American Tree has received three similar open burning permits
from the Agency, the first dated October 26, 1988 and the last
January 26, 1990.’
Open burning permit No.
B8810034 was
issued on
October 26, 1988 and
was valid from November
1, 1988, until
November 1, 1989. Open burning permit No. B9001016 was issued on January 26, 1990
and was
valid from
January 26, 1990, until January
25,
1991. Both permits contained a special condition that only landscape waste
may
be burned.
3
American Tree operated under these permits for those years
without any requests for modification. However, on August 23,
1990, the Agency received a request from American Tree to approve
a modification of American Tree’s open burning permit to allow
the burning of aged leaves and grass clippings in plastic bags
from the City of Springfield’s 1989 and 1990 landscape waste
collection program. The request for permit modification was to
burn 60,000 bags that had been delivered to the American Tree
facility. In response, the Agency requested more information
concerning the nature and quantities of landscape waste that
American Tree proposed to incinerate and why alternatives were
not being utilized. On September 22, 1990, American Tree
responded to the Agency, stating that the City of Springfield’s
ban on burning was the reason why no alternatives existed to open
burning. In its response, American Tree also included a letter
sent by it to Ossie Langfelder, Mayor of Springfield, offering
that American Tree would burn leaves and grass clippings
accumulated during the 1990 calendar year for $36,000.
On October 16, 1990, the Agency denied this request for
permit modification. As one of its denial reasons, the Agency
stated that the application did not demonstrate that the burning
of leaves and grass at this site would not constitute a regional
pollution control facility. Documentation of siting approval in
accordance with Sections 39(c) and 39.2 of the Act was not
submitted, as is required for regional pollution control
facilities.
On April 30, 1991, the Agency received an application for
open burning permit from American Tree, wherein Roy F. Throop,
Jr., of American Tree questioned whether American Tree could be
permitted to burn landscape waste other than its own; he defined
other than its own as waste generated by companies beside
American Tree. In response, on July 29, 1991, the Agency denied
the application submitted by American Tree for an open burning
permit based upon the fact that the burning described may violate
Sections 9(a), 9(c), 21(d), 39(d), and 39.2 of the Act. (415 ILCS
5/9(a), 5/9(c), 5/21(d), and 5/39.2 (1992).)
On July 30, 1991, American Tree sent a letter to the Agency
regarding the permitting status of a landscape waste storage
facility with an air curtain destructor treatment unit. On July
31, 1991, the Agency responded to American Tree, informing it
that a permit from the Agency’s Division of Land Pollution
Control would be required for the development of the type of
solid waste management facility described by American Tree. The
Agency letter also stated that if the facility accepted waste
from outside a general purpose unit of government, the facility
would be required to obtain siting as a regional pollution
control facility.
On October 22, 1991, an open burning permit was issued by
4
the Agency to American Tree following review of open burning
permit application No. B9110097. This permit was valid from
October 22, 1991, until October 21, 1992, and it allowed American
Tree to open burn with the aid of an air curtain destructor.
Unlike the previous permits, this permit contained the following
special condition:
“Only landscape waste generated by ATS
Service’s own activities may be burned.”
The permit was also accompanied by a letter from Delbert
Haschemeyer, then Associate Director of the Agency, which stated
in part:
***
“Landscape Waste” which is picked
up or otherwise removed from premises on
which it originated and transported by ATS
Service Inc., to its facility at 1701 Camp
Lincoln Road, Springfield, sic) waste
generated by ATS Service Inc.’s own activity
and may be burned under the terms and
conditions from the permit reached by the
Agency on October 22, 1991. ~
On December 17, 1991, and again on October 19, 1992 open
burning permits were issued by the Agency to American Tree. The
last open burning permit was valid from December 17, 1991, until
December 17, 1993. In addition to the above—referenced
condition, it contained the following special condition: “o)nly
landscape waste may be burned.”
On November 3, 1993, the Agency sent a letter to American
Tree indicating the Agency’s intent to review the information
contained in open burning permit application No. 39309040. The
Agency also stated in the letter that site inspections indicated
violations of Section 9(b) and 39.2 of the Act (415 ILCS 5/9(b)
and 5/39.2), as well as special condition No. 7 of open burning
permitOnNo.DecemberB911097.21,2
1993, an open burning permit was issued by
the Agency to American Tree following review of open burning
permit application No. B9309040. This permit was valid from
December 21, 1993, until December 20, 1994, and it also allowed
American Tree to open burn with the aid of an air curtain
destructor. The open burning permit issued on December 21, 1993,
contained, inter alia, the following special conditions:
7. Only landscape waste from American Tree
2 The alleged violations that are discussed in the Agency’s letter are not
before the Board in this matter.
5
Service Inc.’s own activities may be burned.
Specifically, this is landscape waste
generated or produced by American Tree
Service Inc. ‘s own employees. However, for
leaves to constitute landscape waste from
America Tree Service Inc.’s own activity,
leaves must be raked and gathered by American
Tree Service Inc.’s employees. Further,
American Tree Service Inc.’s activities do
not include landscape materials produced or
bagged by other individuals or
subcontractors.
8. Only landscape waste may be burned.
The open burning permit issued on December 21, 1993, also denied
a request by American Tree to reissue the open burning permit
such that condition No. 7 would read as found in the open burning
permit issued on October 26, 1988.
Additionally, the parties stipulated that if a hearing in
this matter were held, the Agency would present testimony that
other facilities which open burn landscape waste were required to
obtain local siting approval prior to the issuance of the air
permit, e.
g.
JKS Ventures, Inc., located in Melrose Park,
Illinois. Also, the Agency would present testimony that in open
burning permit applications submitted by the City of Monticello,
Illinois, and Modern Environmental Facilities, Inc. (located in
Pana, Illinois), both of which concerned the open burning of
landscape waste, the Agency had determined that the facilities in
question were not regional pollution control facilities so long
as they only accepted landscape waste generated within the city
limits of Monticello and Pana, respectively.3 Finally the
parties stipulate that unless otherwise specified, any
information contained in the administrative record is admissible.
Applicable Law
This proceeding is before the Board on cross motions for
summary judgment.4 We find that summary judgment is appropriate
here because there are no genuine issues of fact remaining and
only issues of law remain to be decided by the Board.
3
The decision in TENNSV v. Gade, (1994),
Nos. 92—502 and 92-503, was decided
subsequent to the Agency’s determination in these matters.
4
Summary judgment is appropriate when there are no genuine issues of fact
to be considered by the trier of fact and the movant is entitled to judgment
under the law. (Williamson Adhesives, Inc. v. EPA, No. PCB 91—112 (Aug. 22,
1991), caruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.e. 2d 457,
459 (1974).)
6
In a proceeding for review of permit denial authorized by
Section 40(a)(l) of the Act 415 ILCS 5/40 (a)(1)) and 35 Ill.
Adm. Code Section 105.102(a), the statute provides that the
burden of proof shall be on the petitioner. The petitioner bears
the burden of proving that operating pursuant to the permit, as
requested from the Agency, as submitted, would not violate the
Act or the Board’s regulations. This standard of review was
discussed in Browning—Ferris Industries of Illinois, Inc. v.
Pollution Control board, 179 Ill. App. 3d 598, 534 N.E. 2d 616,
(Second District 1989) and reiterated in John Sexton Contractors
Company v Illinois (Sexton), PCB 88—139, February 23, 1989. In
Sexton the Board held:
that the sole question before the Board is whether the
applicant proves that the application, as submitted to the
Agency, demonstrated that no violations of the Environmental
Protection Act would have occurred if the requested permit
had been issued.
Therefore, a petitioner must establish to the Board that issuance
of the permit as requested would not violate the Act or the
Board’s rules. In this case, American Tree has the burden of
demonstrating that condition No. 7 is not reasonably required and
that the permit can be issued without the necessary local siting
approval pursuant to Section 39.2 of the Act. (415 ILCS 5/39.2
(1991).)
Section 9(c) of the Act provides that no person shall:
Cause or allow the open burning of refuse, conduct any
salvage operation by open burning, or cause or allow
the burning of any refuse in any chamber not
specifically designed for the purpose and approved by
the Agency pursuant to regulations adopted by the Board
under this Act; except that the Board may adopt
regulations permitting open burning of refuse in
certain cases upon a finding that no harm will result
from such burning, or that any alternative method of
disposing of such refuse would create a safety hazard
so extreme as to justify the pollution that would
result from such burning;
Section 9(f) of the Act provides, in relevant part, that
Section 9:
•1•
shall not limit the burning of landscape waste
upon the premises where it is produced or at sites
provided and supervised by any unit of local
government, except within any county having a
population of more than 400,000.”
The following definitions, relevant to this issue, are
7
contained in Section 3 of the Act:
Sec. 3.08. “Disposal” means the discharge, deposit,
injection, dumping, spilling, leaking or placing of any
waste or hazardous waste into or on any land or water or
into any well so that such waste or hazardous waste or any
constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including ground
waters. (Emphasis added.)
Sec. 3.20. “Landscape waste” means all accumulations of
grass or shrubbery cuttings, leaves, tree limbs and other
materials accumulated as the result of the care of lawns,
shrubbery, vines and trees.
Sec. 3.21. “Municipal waste” means garbage, general
household and commercial waste, industrial lunchroom or
office waste, landscape waste, and construction or
demolition debris.
Sec. 3.24. “Open dumping” means the consolidation of refuse
from one or more sources at a disposal site that does not
fulfill the requirements of a sanitary landfill. (Source:
P.A. 84—1308.)
Sec. 3.32. (a) “Regional pollution control facility” is any
waste storage site, sanitary landfill, waste disposal site,
waste transfer station, waste treatment facility or waste
incinerator that accepts waste from or that serves an
area
that exceeds or extends over the boundaries of any local
general purpose unit of government. This includes sewers,
sewage treatment plants, and any other facilities owned or
operated by sanitary districts organized under the
Metropolitan Water Reclamation District Act. (Emphasis
added.)
The following are not regional pollution control facilities:
(3) sites or facilities used by any person conducting a
waste storage, waste treatment,
waste disposal,
waste
transfer or waste incineration
operation,
or a
combination thereof, for
wastes generated by such
person’s own activities, when such wastes are stored,
treated, disposed of, transferred or incinerated within
the site or facility owned, controlled or operated by
such person, or when such wastes are transported within
or between sites or facilities owned, controlled or
operated by such person; (Emphasis added.)
(6) Sites or facilities used by any person to
8
specifically conduct a landscape composting operation;
Section 3.53. “Waste” means any garbage, sludge from a
waste treatment plant, water supply treatment plant, or air
pollution control facility or other
discarded material,
including solid, liquid, semi—solid, or contained gaseous
material resulting from industrial, commercial, mining and
agricultural operations, and from community activities, but
does not include solid or dissolved material in domestic
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources
subject to permits under Section
402
of the Federal Water
Pollution Control Act, as now or hereafter amended, or
source, special nuclear, or by—product materials as defined
by the Atomic Energy Act of
1954, as amended (68 Stat. 921)
or any solid or dissolved material from any facility
subject
to the Federal Surface Mining Control and Reclamation Act of
1977 (P.L. 95-87) or the rules and regulations
thereunder or
any law or rule or regulation adopted by the State of
Illinois pursuant thereto.
Section 3.69.
“Compost” is defined as the humus-like
product of the process of composting waste, which may be
used as a soil conditioner.
Section
3.70.
“Composting” means the biological treatment
process by which microorganisms decompose the organic
fraction of waste, producing compost. (Source: P.A. 85—
1429.)
Section 22.22(e) of the Act
provides:
(c) Beginning July 1, 1990, no owner or operator of a
sanitary landfill shall accept landscape waste for
final disposal, except that landscape waste separated
from municipal waste may be accepted by a sanitary
landfill
if (1) the landfill provides and maintains for
that purpose separate landscape waste composting
facilities
and composts all landscape waste, and (2)
the composted waste is utilized, by the operators of
the landfill or by any other person, as part of the
final vegetative cover for the landfill or for such
other uses as soil conditioning material.
Arguments
of the Parties
Each party argues that summary judgment should issue in its
favor. Since there are no facts in dispute, the parties argue
only their interpretations of the
relevant
law. A recitation of
each of their positions follows:
A. The Illinois Environmental Protection Agency
9
The Agency believes that condition No. 7 is a necessary
condition to the issuance of the air permit because, it argues,
without this condition American Tree would constitute a “regional
pollution control facility,” hereinafter referred to as RPCF,
(415 ILCS 5/3.32
(1992)) and therefore would require local siting
approval, pursuant to Sections 39 and 39.2 of the Act, and
various other waste handling land permits prior to its issuance.
The Agency believes that condition No. 7 keeps American Tree out
of the realm of RPCFs because it is drafted so as to mandate that
any landscape waste incinerated by American Tree must be produced
and generated by American Trees’ own activities and employees.
The Agency obviously believes that this condition would put
American Tree into the exclusion from the definition of a RPCF
pursuant to Section 3.32(a) (3) of the Act. Section 3.32(a) (3)
provides an exception for facilities that store, treat,
incinerate wastes generated by its own activities.
According to the Agency, “landscape waste” is generally the
same thing as “waste” as defined in Section 3.53 and 3.21 of the
Act.
Under Section 3.53, the definition
of “waste” itself,
it
argues that
the portion of the definition which includes “other
discarded material..., from community activities...” clearly
includes the landscape waste which American Tree plans to
purchase from individuals and communities and
incinerate at its
facility.
It argues that the Appellate Court’s decision in City of
Lake Forest
v. Pollution Control Board, (1986),
497 N.E.2d 181,
does not prevent the Board from determining that the landscape
waste proposed to
be
incinerated
at American Tree is a waste. In
that case, the Second District Appellate
Court reversed a June
13, 1985 Board cease and desist order against Lake Forest,
concerning that city’s passage of a municipal ordinance
permitting and regulated leaf burning within its
jurisdiction.
The Board had found
that Lake Forest’s ordinance unlawfully
allowed open burning of “refuse” or “waste.” Among other things,
the court disagreed problems with the Board’s conclusion that the
leaves being burned on people’s own properties constituted
“waste” under the Act.
The Agency would distinguish
Lake Forest on the basis that
“(t)here is significant distinction between whether a person can
lawfully burn their own leaves on their own property under
Section 9 of the Act... and whether a company can commercially
have landscape waste collected, and then store and subsequently
burn such landscape waste
without a permit under Section
21 and
without proof of siting approval under Section 39(c) of the Act
from the unit of local government it operates within.” (Agency’s
10
Not. at 20.)~
Further, the Agency questions whether the
1986 decision in
Lake Forest is still “good law today in light of subsequent
amendments by the drafters of the Act.” (Agency’s Mot. at 20.)
Specifically, the Agency argues that several amendments of the
Act subsequent to the Lake Forest decision tend to demonstrate
that the legislature intends that the definition of “waste”
generally includes “landscape waste.”
In Public Act 85—1429, Section 22.2(c) of the Act (effective
January 5, 1989), the legislature prohibited sanitary landfills
from accepting most “landscape waste for final disposal” and
expressed a preference for composting. The Agency argues that
this section evidences a legislative intent that landscape waste
is a waste since “the phrase ‘landscape waste for final disposal’
is meaningless unless ‘landscape waste’ is a ‘waste’.” Also, it
argues that since “disposal” is an activity which by definition
(415 ILCS 5/3.08 (1992)) only applies to waste or hazardous
waste, the activity could not be considered disposal under the
Act if the material in question were not a waste.
Further, the Agency argues that when the legislature
added
various sections concerning composting to the Act (415 ILCS
5/22.33 and 5/22.34 (1992)), it legislatively treated the word
“waste” as
if “waste” and “landscape waste” were one and the same
thing when dealing with the concept of natural materials which
decompose, such as leaves and other landscape “waste”. For
example, Section 3.70 of the Act defines composting as “the
biological treatment process by which microorganisms decompose
the organic fraction of waste, producing compost” and Section
3.69 defines “compost” as “the humus—like product of the process
of composting waste, which may be used as soil conditioner.” The
Agency also argues that the legislature’s
exclusion of
“landscape
composting operation(s)” from the definition of Regional
Pollution Control Facility evidences a legislative treatment of
landscape waste as waste. Otherwise, it argues, such exclusion
for composting operators would not have been necessary.
The Agency cites other sections of the Act in which
amendments have been made that specifically
exclude “landscape
waste”
from a general provision regarding waste such as:
Sections 14.4(a)
which requires groundwater
regulations to be proposed for “waste which could cause
contamination of groundwater and which
are generated on the
The Agency’s Motion for Summary Judgment will be referenced as “Agency’s Mot. at “and
American Tree’s Motion for Summary Judgment will be referenced as “American Tree’s Mot. at
“.
The
Association’s Amicus Curiae Brief will be referenced as “Assoc. at”.
11
site, other than...landscape
waste”;
Section 14.5 (b) (1)
which requires that “no on-site
landfilling,...of waste, other than landscape waste or
construction and demolition debris, has taken place” as a
necessity for
providing certification of minimal hazard to
the Agency pursuant this section (415 ILCS 5/14.5(b) (1)
(1992);
Section 22.15(c)
(2) and
22.15(k) (5)
which limit
permitted landfills
to receiving only demolition or
construction
debris or landscape waste.
(415 ILCS
5/22.15(c) (2) and 22.l5(k)(5)
(1992).)
The Agency also cites other sections of the Act which
utilize the term “waste” for the general proposition that these
terms, as used legislatively,
are used interchangeably
and are
not mutually exclusive.
(Agency Mot. at 12-19.)
Finally, the Agency argues that environmental policy
considerations
support the finding that “landscape waste” is a
“waste” as defined in Section 3.53 of
the Act. Generally, the
Agency argues that
a general treatment
of landscape waste
different from that of “waste”, where not required by the
legislature,
would result in the loss of significant
regulatory
control. As examples, it argues that if landscape waste is not
considered “waste”, large landscape waste storage or transfer
sites could develop without regard to the land and waste permit
requirements
and the local siting requirements,
and that
“landscape waste
only” landfills might be developed and operated
without regard to a permit otherwise required under Section 21 of
the Act.
The Agency also responds to American Tree’s argument that,
even if landscape waste is
a waste, condition No. 7 is
unnecessary and unreasonable. The Agency argues that a facility
accepting waste from outside a general purpose unit of government
is a RPCF under Section 3.32 of the Act and as such is required
to obtain local siting approval pursuant to Section 39(c) of the
Act prior to the Agency issuing a permit for such activity. The
Agency argues that the definition of a RPCF excludes
facilities
that only accept wastes generated by such
person’s activities and
that condition No. 7 is necessary for American Tree to fit into
that exclusion.6 The Agency
argues that condition No. 7 reflects
6
The Act excludes from the definition of RPCF and concomitant requirements for local siting
approval
facilities which accept “wastes generated by such person’s own activities, when such wastes are stored, treated,
disposed of, transferred
or incinerated within the site or facility owned, controlled or operated by such person,
or when such wastes are transported within or between sites or facilities owned, controlled or operated by such
person” (415 ILCS
5/3.32(a)(3)
(1992).)
12
the courts’ interpretation of “generated by the operator’s own
activities” in the cases of Pielet Bros. Trading, Inc., v.
Pollution Control Board, et al., (1982), 110 Ill. App. 3d 752 and
Wasteland,
Inc., et al. v. Pollution Control Board, et al.,
(1983), 118 Ill. App. 3d 1041. The Agency states that without
condition. No. 7 American Tree will need to obtain local siting
approval in order for the Agency to issue an open burning permit.
B. American Tree Service
American Tree Service argues some of the same statutory
provisions as the Agency, but it does so toward the conclusion
that the terms “landscape waste” and “waste” are mutually
exclusive. It argues that if the legislature intended to
consider landscape waste as “other discarded material”, it should
have done so and should have included it after the word
“including”. It further argues that since “landscape waste” is
particularly included in the definitions of Municipal waste
(Section 3.21) and Organic waste (Section 22.34), the
legislature’s failure to specially include it in the general
definition of “waste” shows an intent not to consider it “waste.”
American Tree believes that the Lake Forest decision is
still good law and that it calls for the conclusion that
landscape waste is not a waste. It cites the court’s conclusion
that “...the legislature specifically included leaves in its
definition of ‘landscape waste’ in the Act citation omitted) as
a separate category of waste, indicating a legislative intent
that leaves do not come within the general definition of waste
under the Act.” (American Tree Mot. at 11.) It argues that if
the legislature wanted “landscape waste” to be treated as general
“waste,”
it should have specifically so stated in the public acts
that have been
enacted subsequent to the Lake Forest decision.
Although the Agency argues that these acts evidence an intent to
include landscape waste, American Tree argues that “the Agency
cannot, and will not find the five (5) words it needs:
‘landscape waste is a waste’.” (American Tree Not. at 6.)
American Tree analyzes each of the four amendments analyzed by
the IEPA and urges the opposite result. (American Tree Mot. at
7—li.)
Finally, American Tree argues that even if the Board
determines that “landscape waste” is a “waste” under the Act,
there is no reasonable basis for condition No. 7 in the requested
permit. It considers condition No. 7 a restrictive condition
which has no justifiable basis and which is confusing in that it
contains terminology not elsewhere defined in the Act:
“activities”,
“generated”, and “produced”.
It further argues
that the Agency’s permit has become more restrictive
over time
and that condition No. 7 will adversely affect its ability to
conduct business and is wholly arbitrary since “there has been no
open burn permit issued in the State of Illinois since January 1,
13
1991 which contains the same or even a similar condition.”
American Tree rather, while not agreeing with the general
position, cites Haschemeyer’s letter in pertinent part as
follows: “It is the actual pick up and removal from the
premises-which constitute the activities which makes leaves a
discarded material...” (American Tree at 12.)
C. Statements of Non—Parties
(i) Springfield Airport Authority
The Authority asserts that if American Tree’s air permit
allows it to accept waste from across boundaries of a general
purpose unit of government, without first obtaining local siting
approval pursuant to Section 39 and 39.2 of the Act, the air
permit would be in violation of the Act. The Authority is
opposed to the issuance of the permit, without at least condition
No. 7, because of safety concerns at the airport. The Authority
states that American Tree’s activities take place approximately
4500 feet from
the nearest runway and 2500 feet from its
property. The Authority’s concerns arise from the possible
increase of smoke and the attraction of wildlife, specifically
birds, that could impede a pilot’s vision.
(ii) Val-E-Vue Association
The Association states in its amicus brief that the
definition of waste at Section 3.53 of the Act is written broadly
with only certain exclusions, and landscape waste is not one of
them. The Association believes that to interpret the section
otherwise would mean that all the other defined wastes, such as
hazardous waste, industrial process waste, and municipal waste,
would also be excluded as non-waste. The Association believes
that the only reasonable construction of the Act would be to
include all terms that include the word “waste” in their titles,
as waste defined by Section 3.53 of the Act.
The Association also believes that the definition of
industrial process waste that excludes landscape waste does not
mean that landscape waste is not a waste, but is evidence that it
is a type of waste because if it was not a waste the exclusion
would not be necessary. Furthermore, the Association states that
American Tree’s arguments concerning Section 22.15 of the Act do
not tend to show that the legislature intended that landscape
waste is not a waste, but only that it meant to exclude landscape
waste from the tipping fees associated with that section.
Regarding the Lake Forest decision, the Association asserts
that
the decision is not applicable here, as it dealt with
whether a city ordinance may allow leaf burning and is limited to
a construction of the words “waste” and “refuse” as they apply to
leaves found on one’s own property. (Assoc. Brief at 6.) Like
14
the Agency it also questions whether the decision is still “good
law” in light of the subsequent statutory amendments concerning
landscape waste.
The Association concludes by stating that issuance of the
permit, even with Agency condition No.
7, would violate the Act
if
American Tree does not first obtain local siting approval.
The Association believes that since American Tree’s is a
landscape business which picks up landscape waste that has been
discarded by homeowners and municipalities, and condition No. 7
does not allow for an appropriate exemption from to the siting
law. The Association cites to Pielet
and Joos Excavating v.
Pollution Control Board, 58 Ill. App. 3d 309 (3rd Dist. 1978) for
support that American Tree
is not generating the waste from its
own activities.
Instead, the Association argues that American
Tree is collecting waste generated by others and disposing of it
at
its facility.
It believes that, even with permit condition
7,
American Tree is a regional pollution control facility which
needs local siting
before the open burning permit in controversy
is properly issued.
Discussion
Section 3.53 of the
Act defines waste as “...any garbage,
sludge
from a waste treatment
plant... or other discarded
material, including solid, liquid, semi—solid, or contained
gaseous material resulting from industrial,
commercial, mining
and agricultural operations, and
from community activities.
.
(Emphasis added.)
We find that landscape waste, although
separately defined, is nonetheless
a waste. We find that the
general definition at Section 3.53 of the Act includes all
specifically—defined types of wastes, such as landscape waste and
hazardous waste. To find otherwise would mean that all waste
with specific definitions,
such as municipal waste, industrial
process waste and organic waste, would not be “waste” as defined
by Section 3.53 of the Act. We agree with the Agency’s and the
Association’s construction of legislative intent: that when
construing the Act, “landscape waste” should be considered a
subset of “waste” unless it has been specifically excluded as it
is in Sections
3.17, 3.60(1), 14.5(a) (1) and 14.5(b) (1) of the
Act.
(415 ILCS 5/3.17, 5/3.60(1), 5/14.5(a) (1) and (b)(1)
(1992).)
The First District decision
in Lake Forest does not require
otherwise. The decade-old decision, which preceded virtually all
legislative treatment of the term “landscape waste”, is easily
distinguished from this case. In Lake Forest, the court
reversed a Board decision that found that an ordinance which
regulated leaf
burning violated the open burning provisions of
Sections 9(a) and (c) of the Act, since it, in effect, allowed
for such burning. (415 ILCS 5/9(a) and (c) (1992).) The
court
quite simply was saying that
leaves which fall naturally from the
15
trees do not constitute “refuse” pursuant to the open burning
provisions of the Act and, since “refuse” is defined as “waste”,
a person’s yard leaves do not constitute waste. Not
surprisingly, the court rejected the former Board opinion and
concluded that the legislature, by promulgating Section 9 of the
Act, intended that the burning of leaves and other landscape
wastes is quite permissible on the premises where it is produced
by nature, or at sites provided and supervised by local
governmental units.
That holding is still good law.
Here, almost a decade and various legislative amendments
later, the Board is confronting a wholly new and different
factual situation and regulatory scheme than what the court
confronted in Lake
Forest. There is no unit of local government
involved. The Board is not prohibiting the burning of landscape
waste, nor is there any issue of the burning of landscape waste
on
the premises where it was generated.
Finally, the decision in
Lake Forest was not interpreting the Act in the context of a
permit appeal in which the Agency has the authority to impose
conditions in the permit necessary to accomplish the purposes of
the Act.
Having decided that landscape waste is a “waste” for
purposes of the local siting law, the Board must determine
whether the Agency’s proposed condition No. 7 brings American
Tree out of the realm
of regional pollution control facilities.
It is well settled that the purpose of the local siting law is to
place decisions regarding sites for waste
disposal and waste
incineration in the hands of local authorities.
See E & E
Hauling, Inc. v. Pollution Control Board, (1985), 107 Ill.2d 33,
89 Ill.Dec. 821, 481 N.E. 2d 664.
Several exceptions to local siting requirements are provided
in the Act. As discussed earlier, we do not read the Act to
exclude landscape waste from the definition of “waste” in the
local siting law and,
therefore, the fact that American Tree
burns landscape
waste provides them no exception.
Further, we do
not believe that the Agency’s condition No. 7 sufficiently
restricts the landscape waste American Tree can accept in order
for it to be excluded as a RPCF.
Clearly
the condition attempts
to bring American Tree within the exclusion for facilities
which
dispose of:
“wastes generated by such person’s own activities,
when
such wastes are stored,
treated, disposed or,
transferred or incinerated within the site
or facility
owned, controlled or operated by such person, or when
such wastes are transported within or
between sites or
facilities
owned, controlled or operated by such
person.”
(415 ILCS 5/3.32(a)(3)
(1992).)
Thus, the condition purports to limit the landscape waste to that
16
from ATS’ own activities, and thereby exclude the facility from
the definition
of an RPCF. We find that it does not.
Here we are confronted by a facility which incinerates
landscape waste which is not generated on—site, but which is
discarded by individual homeowners and units of local government.
The condition still appears to allow for the collection of
landscape waste which is generated off—site and on premises
other
than ATS’, so long as it is raked and gathered by American Tree
employees.
While the last sentence of the condition seems to
suggest that American Tree is prohibited from burning landscape
materials which is “produced or bagged” by other individuals or
subcontractors,
we are not convinced that even that prohibition
goes far enough to ensure that American Tree is not a RPCF as a
result of its operation.
As written, condition No. 7 potentially
allows American Tree to incinerate, at its facility in Sangamon
County, landscape waste that is generated from anywhere in the
State, or the world, as long as it is being collected by American
Tree employees.
This would truly circumvent the purposes of the
Act as set forth in Sections 3.32, 39 and 39.2.
In a similar set of circumstances dealing with refuse
collection
pursuant to then Section 1021(e) of the Act
(Ill.Rev.Stat.
1975, ch. 111 1/2, par. 1021(e)) the court in R.E.
Joos Excavating v. Environmental Protection
Agency, (3rd Dist.
1978), 58
Ill.App.3d 309,
374 N.E. 2d 486, interpreted the phrase
“c)onduct any refuse—collection
or refuse—disposal operations,
except for refuse generated by the operator’s own activities,..
.“
to be applicable to
“. .
.refuse generated on the site where it
is
to be disposed of.”
(Id. at 489.)
We agree with the court’s
reasoning. The words “own
activities” must be connected to
something more than “activities” of a company’s employees such as
what is set forth in condition No. 7. Rather, those words must
have some connection to the waste that is generated by the
facility
itself.
In that American Tree burns landscape waste
that it, as a company, does not “generate” on its own Sangamon
site, it is a regional pollution control facility. It does not
fit the stated exemption, even given the rather strained
requirements of condition No.
7. In sum, under the definition of
the Act and case precedent, American Tree would be considered a
regional pollution control facility that is required to obtain
local siting approval pursuant to Section 39.2 of the Act prior
to Agency issuance of an operating permit if it accepts landscape
waste for incineration at its facility that is generated by
others.
For these reasons we find that, since “landscape waste” is a
“waste” for purposes of
Section
39 of the Act and since condition
No. 7 fails to sufficiently
limit American Tree as a RPCF, the
open burning permit at issue before us cannot be granted without
American Tree first obtaining local siting approval. Absent such
approval, this permit, even with condition No. 7, would violate
17
the Act.
In summary the Board finds that “landscape waste” is a
“waste” as defined by Section 3.53 of the Act. (415 ILCS 5/3.53
(1992).) American Tree would be a “regional pollution control
facility”
as defined by Section 3.32 of the Act if it accepts
landscape waste for incineration that is from outside the
boundaries of the general purpose unit of government where its
facility is located. Therefore, American Tree
is required to
obtain local siting pursuant to Sections 39 and 39.2 of the Act
in order for the Agency to issue an operating permit without
condition No. 7 so that the Agency permit would not violate the
provisions of the Act. The Board also finds that issuance of
permit No. B9309040 as written, including condition No. 7,
violates the Act since local siting approval has not been sought
and given pursuant to Section 39 of
the Act. Therefore, the
Board invalidates American Tree’s open burning permit No.
B9309040 as issued by the Agency.
This opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
Order
For the reasons expressed in the foregoing opinion, the
Board hereby grants the Illinois Environmental Protection
Agency’s motion for summary judgment in
that landscape waste is
“waste” and local siting approval for American Tree Service
Inc.’s (American Tree) facility is required. However, for the
reasons stated in this opinion, permit No. B9309040 as issued to
American Tree with condition No. 7 is invalid.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days.
The Rules of the Supreme Court of Illinois establish
filing requirements.
(But see also, 35 Ill. Adm. Code 101.246,
Motions for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois
Pollution Control
Board, hereby ce~tify that t~ above opinion and order was
adopted on the/~’~day of
~-r-4.-~-&-~
,
1994, by a vote of
___
/2
Dorothy N. i~inn, Clerk
Illinois
Pp~lution Control Board
