ILLINOIS POLLUTION CONTROL BO7~.RD
June
8,
1989
El—STATE DISPOSAL, INC.,
Petitioner,
V.
)
PCB 89—49
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
THOMAS J.
IMMEL OF IMMEL,
ZELLE, OGREN, McCLAIN, GERMER AND
COSTELLO,
APPERED ON BEHALF OF THE PETITIONER.
JOHN
P. WALIGORE APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND ORDER OF TH~BOARD
(by
.1.
Marlin):
This matter comes before the Board upon
a permit appeal
filed by Ri—State Disposal,
Inc.
(Bi—State)
on March
8,
1989.
Ri—State seeks
review of
a February 28,
1989 decision
of the
Illinois Environmental Protection Agency
(Agency)
to reject
a
permit application which Ri—State had submitted to the Agency.
A
hearing was held
in this matter on May
3,
1989.
Motion to Close Record
On May 15, 1989, Ri—State
filed
its brief.
The Board has
not received any brief
from the Agency.
On May 30,
1989, Bi—
State
filed
a Motion
to Close Record.
That
is, Ri—State requests
that the Board render
a decision without waiting
for an Agency
brief.
In the motion, Ri—State asserts
that the Agency has not
met the briefing deadlines
set by the Hearing Officer.
Counsel
for Bi—State states that he will
be working
on
a trial and out of
the office
for the week
of May 30th.
As
a result, Bi—State
claims that
the lateness of the Agency’s brief has “effectively
rendered
it impossible
Cor Petitioner
to file any Reply Brief...
and still
have said Brief considered
by
the
Board)
before its
effective decision deadline”.
Ri—State
states that
it will not
waive the statutory decision deadline
in this matter.
At hearing,
the Hearing Officer addressed
the timing for the
submission
of briefs:
HEARING
OFFICBR:
Back
on
the
record,
please.
After
consultation with
counsel,
we
have
agreed
on
a
Briefing
schedule
as
follows:
11)0—19
The
court
reporter
will
have
the
transcript
ready
as
soon
as
she
can.
She
said
she’ll
have
it
ready
in
a
few
days.
Based on
that
I
order
Mr.
Immel to have
his main Brief postmarked,
that is, sent
from
his
office
in
Springfield
to
the
Board
not later than Friday, May 12th.
Mr. Waligore
will have his Brief mailed
to the Board and served on Mr.
Immel
not
later than Wednesday, May
24th.
Mr.
Immel
will
send
any
reply Brief
to
the
Board
to
leave
his
office
in
Springfield
not
later
than
Friday,
May
26th.
Mr.
Immel,
if you do not wish to file
a reply
Brief
I
would
appreciate
it
if
you
simply
send
a copy
to that effect to the Board and a
copy
to
me,
so
the
Board
knows
the
case
is
ready for decision.
That
will
permit
the
Board
to
make
its
decision
in
a timely manner.
(P.
89).
Neither has the Board
nor the Hearing Officer received any
motion by the Agency
to extend the date
for filing
its brief.
Yet,
the Board
still has not received the
Agency’s brief.
The
Board and
the Hearing Officer have received
a copy
of
a
letter,
dated
May
31.,
1989,
sent
to
Ri—state’s
cound;ei Frr~
the
Agency’s
counsel.
n
thu
letter,
counsel
for
the Agency states
that his
brief will
be
late.
The letter also purportedly confirms an
agreement between Bi—State and the Agency concerning
the late
filing of briefs.
Specifically, Ri—State would
have an
additional time
to file
its brief
to the same extent that
the
Agency’s brief was
late.
However,
the briefing
schedule
is set by the Hearing Officer
Order.
Only through
a motion to the Hearing Officer or
the Board
can such
a briefing schedule be effectively modified.
It
is clear fron~the hearing transcript
that:
1)
the
Hearing Officer con~u1tedwith the parties before setting
the
briefing deadlines and
no party objected
to the
schedule;
2)
the
schedule set date certain deadlines
for service of
the
briefs on
the opposing party as well as
the date for mailing
the
briefs
for
the Board;
and
3)
the deadlines were set deliberately to provide
the Board with adequate time to consider the briefs,
including
a
Ri—State Reply brief,
given
the statutory decision deadline of
100-20
3
this
case.
The Hearing Officer acted properly in setting the
briefing schedule,
and the schedule should be upheld.
Ri—State’s
motion to close
the record
is granted. The Board notes
that
it
does not construe Ri—State’s motion as
a motion for sanctions
against
the Agency.
The Board has not made
a finding
as
to the
reasonabiness of the Agency’s noncompliance with
the briefing
schedule.
Rather,
the Board has closed the record to render
a
timely decision
in this matter.
Basis
for Agency Rejection
Bi—State sought modification
of the development and
operating permits
for
a 40—acre non—hazardous waste disposal
facility.
Specifically, Ri—State requested modification of the
permits
to enable Ri—State
to begin
the disposing of waste
in
a
mine cut which bisects
the 40—acre facility.
Ri—State
is
requesting
that the Board
reverse and remand
to the Agency Ri—
State’s permit application which
the Agency has deemed not filed
and rejected.
In rejecting Ri—State’s application
the Agency asserted that
Ri—State
is required
to obtain local site location suitability
approval,
in accordance with Section
39(c)
of the Act,
before
seeking
the permit modification.
The Agency also stated that
the
required number
of notification letters were not provided.
Since
this case may be disposed of
by addressing the first
issue,
the
Board will
not address
the issue concerning
notification
letters.
On appeal
to the Board, Ri—State claims that
its planned
expansion
is not a new regional pollution control
facility under
Section
3.32
of the Act.
As
a result, Bi—State asserts
its
proposal
is
not subject to the site location suitability approval
process of Section 39.2
of the Act.
Before one can follow Bi—State’s
argument,
the history
of
the site needs
to be retraced.
In
1982, Ri—State received
a
permit
to operate
a 40—acre landfill.
That permit did not allow
for the deposit
of waste
in the mine
cut.
However,
in 1976,
the
previous operator
of the site had obtained
a development permit,
which allowed
the deposition of
non—putrescible waste
in the mine
cut.
The site was operated by that operator
from 1978 until
the
permit was transferred
to Bi—State
in 1982.
Evidently,
though,
waste was never deposited
in the mine
cut.
In
1985,
another
permit was
issued
to Ri—State which
incorporated
a closure and
post—closure
plan.
The 1985 permit did not allow waste
to be
deposited
in the mine
cut.
(R.
47—48).
Now, Ri—State wants
its
permit modified so that waste may
be deposited
in the mine cut.
It
is undisputed
that
th.e mining drainage cut lacked
a
permit from 1982
to the present time.
(R.
23—25,
34—36,
48).
The proposed modification would
raise
the vertical elevation
of
the mine cut by 80
to
90
feet.
(R.
57).
1r~P.--2,l
4
As
basis
for
its
contention
that
this
permit
modification
does not constitute
a new regional pollution control facility,
Bi—State relies upon a particular
interpretation of Section 3.32
of the Act.
Specifically Ri—State cites
to the provision which
states:
A new regional pollution control facility is:
*
*
*
2.
The
area
of
expansion
beyond
the
boundary
of
a
currently
permitted
regional
pollution
control
facility;
(emphasis
added)
*
*
*
*
Ri—State claims that the word
“currently”
refers
to
the
instant
in time when SB 172
(the bill which created the site
location suitability process ~or new regional pollution control
facilities)
became effective.
Bi—State then points out that the
mine cut was re~ovedfrom the permit
in
1982,
after
the effective
date of SB 172.
Consequently,
on the effective date of SB 172,
a permit existed
for the site (although Ri—State was not the
permit holder) which allowed for the deposition of waste
in the
mine cut.
Ri—State asserts that such
a construction is
arrived
at by
a
“plain reading” of the statutory definition of
a new regional
pollution control facility.
Bi—State argues that the Agency
permit
review incorrectly interpreted
the word “currently”
to
mean the date the application was
received and not the effective
date
of the SB
172.
Additionally, Bi—State claims that the words
“currently permitted” modify the word
“facility”
and that the
Agency’s
pernii t
reviewer construed
the words
“cur rently
permitted’
as
rrodifyin~j the word
‘
noundary”.
81—State cites only
one
case
as
authority
for
its
statutory
construction
of
the
term
“currently”.
That
case
is
Rhymer
v.
Government
of
Virgin
Islands,
176
F.
Supp.
338
(1959).
The
case,
which
was
decided
by
the
Federal
District
Court
of
the
Virgin
Islands,
involves
the
interpretation
of
the
word
“currently”
which
was
found
in
a
deed
and
ordinance.
The
Federal
District
Court
held:
Normally,
‘currently’
designates
the
very
time of
the utterance or the instrument using
1
Bi—State gives
an effective date
of July 1,
1981
for P.A.
82—
682,
but the effective date was actually November
12,
1981.
2
Apparently
the mine cut was removed from permit consideration
in 1982 at the request
of Ri—State
itself.
(R.
50—51).
100—2 2
5
the
word.
It
is
equivalent
to
‘presently’.
(Rhymer,
176
F~
Supp.
at
341).
The court went
on
to find that the word “currently”
referenced
the point
in
time of the deed’s effective date.
While Ri—State asserts
that Rhymer
is analogous
to the
situation at hand,
and should
be followed,
the Board does not
give great weight
to the case.
Rhymer does not involve
the
interpretation of
an Illinois statute and
is actually
in conflict
with Illinois case
law.
Specifically,
the Board
is
bound by the interpretation of
the Illinois Supreme Court
in T~ozakv.
Retirement Board of
the
Fireman’s Annuity and Benefit Fund of Chicago,
95
ill.
2d 211 447
N.E.2d 394
(1983).
In Kozak the Supreme Court interpreted the
word “current”
as used
in an Illinois statute dealing with
benefits
to the widow of
a fireman who was killed
in
the line
of
duty.
The statutory language at issue provided direction
as
to
how the particular benefits
to the widow would be calculated.
The benefits were
to be based upon “the current annual salary
attached
to the classified position
to which
the fireman was
certified at the time
of his death”.
(Emphasis added).
Tozak,
who was
a widow of
a fireman, contended that the phrase provided
for
the increase of benefits
to her whenever
the salary of the
type
of position which was held by her deceased husband was
increased.
Conversely,
the Retirement Board asserted that the
Tozak’s
benefit was dependent only upon the salary received by
the deceased husband
at the time
of his death.
The Appellate
Court had ruled
in Kozak’s favor.
The Supreme Court affirmed
the
Appellate Court
and construed the word
“current”
as follows:
The words
used
in
a
statute
are
to
be
given
their
ordinary
and
popularly
understood
meaning.
(Illinois
Power
Co.
v.
Mahin,
(1978),
72
Ill.2d
189,
21
Ill.
Dec.
144,
381
N.E.2d
222).
The
appellate
court
relied
in
part
on
the definition
in
the
Random
House
Dictionary
of the English Language Unabridged
Edition
(1966)
to
determine
the
meaning
of
“current”.
There,
the
word
is
defined
as
meaning
“passing
in
time
or
belonging
to the
time
actually
passing;
new,
present,
most
recent”.
Webster’s
Third
New International
Dictionary
.557
(1971)
deFines
its meaning
as
“occurring
in
or
belonging
to
the
present
time”.
We
accept
and
apply
these
definitions,
which
are
supported
by
the
following
cases:
Warren
Co.
v.
Commissioner
(5th
Cir.l943),
135
F.2d
679;
Graham
v.
Miller
(3d Cir.
1943),
137 F.2d
507; American
Fruit
Growers,
Inc.
v.
United
States
(9th
100-~23
6
Cir.
1939),
105
F.2d
722,
726;
Commissioner
v.
Keller
(7th
Cir.
1932),
59
F.2d
499.
(Kozak,
447
N.E.
2d
at
396).
It
is
clear
from
the
Court’s
discussion
in
Kozak
that
the
word “current” means
“the most recent”
or “not fixed
in time”.
Alternatively, Ri—State essentially advocates that the statutory
phrase “the area of expansion beyond
the boundary of
a currently
permitted regional pollution control facility”
in reality means
“the area of expansion beyond
the boundary of
a regional
pollution control facility as permitted on the effective date of
SB
172.
Bi—State’s argument is that its proposed permit modification
is not an expansion to
the facility as permitted on
the effective
date of SB
172.
However, Ri—State has not contended that
its
proposed modification
is not
an expansion
to the boundaries
of
the facility as presently permitted.
Indeed, the purpose behind
the permit modification
is to receive permission to deposit waste
in areas beyond
those allowed by the present permit.
Therefore,
the sole issue of this case
is the determination of what
is meant
by the phrase
“currently permitted regional pollution control
facility”.
Is
it the extent of the facility permitted as
of the
effective date of
SB
172, which was November
12,
1981?
Or,
is
it
the extent
of the facility permitted
as of the date when Bi—
State’s application was submitted to the Agency?
Utilizing the reasoning
of Kozak,
the Board finds
that the
statutory language refers to the present permitted status
of the
facility,
not the facility as
it was permitted on November 12,
1981.
Since Ri—State
is seeking an expansion of
its presently
permitted facility,
the proposed expansion constitutes
a new
regional,
pollution
control
facility
pursuant
to
~c’ction
3.32(2)
oC
the
7\ct’.
As
a
result,
Bi—~tato
must
first
be
granted
site—
location
suitability
approval
pursuant
to
Section
39.2
of
the
Act
before
it
may
apply
for
development
or
construction
permits
for
the
proposed
expansion.
Ill.
Rev.
Stat.
1987,
ch.
1111/2,
par.
1039(c).
The
Agency
was
justified
in rejecting Ri—State’s
application.
Ri—State asserts that legislative history supports
its
interpretation of
the definition
of
“new regional pollution
control facility”.
However,
the Supreme Court
in Kozak also
stated
that when
a statute
is unambiguous
and clear
“there
is
no
reason
for courts
to search for
the motives
of the legislature
to
justify giving the statute
a meaning different
than
the words
of
the
statute
indicate....”
Kozak,
447
N.E.2d
at
399.
A~
in
Kozak,
the statutory language at issue here
is unambiguous.
Hence,
there
is no
reason
to delve
into legislative intent as
evidenced
by floor debates
in the General Assembly.
lOfl—24
7
However,
it
is
significant
to
note
that
subdivision
(1)
of
Section
3.32
states:
A
new
regional
pollution
control
facility
is:
1)
a
regional
pollution
control
facility
initially
permitted
for
development
or
construction
after July
1,
1981.
Ri—State asks the Board
to accept an
interpretation
of
Section
3.32(2)
such that “currently permitted” means “permitted
as of July
1,
1981”.
(Ri—State asserts
that July
1,
1981
is the
effective date
of
SB
172.)
If that were the intent of
the
legislature, why did
it not use
the date “July
1,
1981”
in
subdivision
(2)
as
it did
in subdivision
(1)
of that same
Section?
The absence
of the date
in subdivision
(2)
is
significant.
It
is the Board’s position that the legislature
deliberately drafted subdivision
(2)
in
a broad manner
so that
it
would apply
to all expansions
of regional pollution control
facilities
regardless
of when the expansions were sought.
Accepting
the construction
of Ri—State effectively gives
the
county
board
or
municipality
only
one
chance
to
review
site
location suitability
for any regional pollution control
facility.
That
is,
under Ri—State’s interpretation,
an expansion
to any facility which was initially permitted after
the effective
date of
SB
172 would not be considered
a new regional pollution
control
facility pursuant
to Section 3.32(2).
Such
a facility
would
not have been permitted on the effective date
of
SB
172,
therefore there could be
no expansion
to the “currently
permitted” facility
—
with
“currently permitted” meaning
“permitted
on the effective date
of
SB
172”.
Therefore,
any new
regional pollution control facility pursuant to Section 3.32(1)
which has already gone through
the site location suitability
process could expand
in
an unlimited fashion without ever
triggering
another local
review of site location suitability.
Such
a result
is clearly contrary to the purpose of SB
172
as
enunciated
by the Illinois Supreme Court.
In M.I.G.
Investments,
Inc.
v.
Environmental Protection
Agency,
122
Ill.
2d
342,
523 N.E.2d
1,
(1987),
the Supreme Court
held that
a vertical expansion
to
a landfill was considered
a new
regional pollution control facility pursuant
to the statutory
definition.
In
making
its
decision,
the Supreme Court
reviewed
the purpose behind SB
172.
As
stated
earlier,
the
legislature
amended
the
Act
in
1981
to
give
local
governmental
authorities
a
voice
in
landfill
decisions
that
affect
them.
From
the
language
of
section
3(x)(2)
now
Section
3.32(2)),
it
is
clear that the legislature
intended
to invest
local
governments
with
the
right
to
assess
not
merely
the
location
of
proposed
100—25
8
landfills,
but
also
the
impact
of
alterations
in
the
scope
and
nature
of
previously
permitted
landfill
facilities.
In
section
3(x)(2)
a
“new
regional
pollution
control
facility”
is
defined
as
“the
area
of
expansion
beyond
the
boundary
of
a
currently
permitted”
facility.
Ill.
Rev.
Stat.
1985,
ch.
11ll,~, par.
1003(x)(2).
To
expand
the
boundaries
of
a
landfill,
whether
vertically
or
laterally,
in
effect,
increases
its
capacity
to
accept
and
dispose
of
waste.
An
increase
in
the
amount
of
waste
contained
in
a
facility
will
surely
have
an
impact
on
the
criteria
set
out
in
section
39.2(a),
which
local
governmental
authorities
are
to consider
in assessing the propriety of
establishing
a
new
pollution
control
facility.
Indeed,
adjusting
the
dimensions
of
a landfill facility
to increase the amount
of waste stored will surely have an impact on
“the
danger
to
the
surrounding
area
from
fire,
spills
or
other
operational accidents”
and
“the
character
of
the
surrounding
area”.
Ill.
Rev.
Stat.
1985,
ch.
1111/2,
pars
l039.2(v),(iii).
(emphasis added)
(M.I.G.
Investments,
523
N.E.2d at 4-5).
The Board’s view would allow local units of government
to
scrutinize proposed expansions to existing reigonal pollution
control facilities irrespective of whether
those facilities were
permitted
as
of the effective date
of
SB
172.
Such an outcome
is
certainly
more
consistent
with
the
purpose
of
SB
172
than
the
Vlew
propounded by )3i~State.
In conclusion,
Ri—State’s proposed permit modification
constitutes
a new regional pollution control facility.
Therefore, Ri—State must first seek site location suitability
approval pursuant to Section 39.2 of the Act before applying
to
the Agency for
a permit modification.
As
a
result, the Agency
properly rejected Bi—State’s application
in accordance with
Section 39(c)
of
the Act.
The Agency’s February 28,
1989 permit
decision is affirmed.
This Opinion constitutes the Board’s findings of
fact and
conclusions
of
law in
this matter.
ORDER
The February 28,
1989 decision of the Illinois Environmental
Protection Agency to reject an application for permit
I
1)0- 26
9
modification
submitted
by
Bi—State
Waste
Disposal,
Inc.
is
hereby
affirmed.
Section
41
of
the
Environmental
Protection
Act,
Ill.
Rev.
Stat.
1987
ch.
111
1/2
par.
1041,
provides
for
appeal
of
final
Orders
of
the
Board
within
35
days.
The
Rules
of
the
Supreme
Court
of
Illinois
establish
filing
requirements.
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
cer~4~y
that
the
abo
e Opinion and Order was
adopted on the
~‘~-‘-~
day of
________________,
1989, by
a vote
of
C-
/
Dorothy
‘4.
Gq4li,
Clerk.’
Illinois
PolMtion
Control
Board
100-27