ILLINOIS POLLUTION CONTROL BOARD
August 15,
1985
M.I.G.
INVESTMENTS
,
INC.,
and
)
UNITED BANK OF ILLINOIS,
)
Petitioners,
)
V.
)
PCB 8~—6O
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
THOMAS
3.
IMMEL
(IMMEL, ZELLE, TURNER
& OGREN) APPEARED ON BEHALF
OF PETITIONERS; AND
WILLIAM
3.
BARZANO, JR.
(ASSISTANT ATTORNEY GENERAL) APPEARED
ON
BEHALF OF RESPONDENT.
OPINION AND ORDER (by 3. Anderson):
This matter
is a permit appeal
filed May 3, 1985
by M.I.G.
Investments,
Inc. and United Bank of Illinois
(hereinafter,
collectively “M.I.G.”).
M.I.G.
seeks review of the March
28,
1985 decision of the IEPA (“Agency”) denying M.I.G.’S application
to modify
the development of
an existing solid waste management
facility,
the Bonus Landfill in Belvidere,
Boone County,
Illinois.
The modification proposed involved
a re—contouring
to
increase the height of the existing site; this would
not,
however, extend
the boundaries of the site from those currently
permitted.
The Agency denial letter
had listed six grounds for denial
of M.I.G.’s request,
all
of which were challenged
in M.I.G’s May
3 appeal.
However, at the hearing held
in this matter
on July
9,
1985,
the parties’ presented
a stipulation stating that they,
had
“resolved all differences save one”, and that “Petitioner’s agree
to withdraw their Permit Appeal concerning
all issues raised
in
the Permit Denial letter
of March 28,
1985 except for Paragraph
1
thereof.”
(Joint Exh.
A, Section 2—3).
The sole issue before
the Board
for resolution,
therefore,
is whether the Agency
correctly determined that Section 39(c)
of the Act required
it
to
deny
the requested modification for the reason that:
“Based upon
the May 9, 1984 decision of the Circuit court
(sic)
of Lake County Illinois
in the case titled Village
of
Antioch
vs. Richard Carlson, Director of Illinois
Environmental Protection Agency, and Waste Management of
Illinois,
Inc., Number 83—CH—454,
local siting pursuant
to
65-261
Section 39.2
of the Act
also
known as
P.
A.
82—682
or
SB
172
is required for
an increase in disposal capacity due
either
to new or different elevations above ground
or
trenches below ground.”
Only minimal testimonial explanations of the parties’
legal
positions were made
at hearing.
The primary materials for
the
Board’s consideration then are
the Agency record, filed July 10,
1985,
as supplemented August 12, M.I.G.’s opening brief of July
10 and
response brief of July 30,
as verified by filing of August
7,
and the
Agency’s
brief of July 19.
The Existing Bcnus Landfill
‘the site was initially permitted by the Department of Public
Health
in 1969 and thereafter was repermitted by the Illinois
Environmental Protection Agency
in
1972.
The owners
of the
facility have been
the same since 1969,
and
a series of operators
have run
the site under
lease.
Since
it opened
in 1969,
the site
has been operated
on an uninterrupted basis,
taking municipal
wastes and/or some
special wastes.
The special wastes have
consisted for the most part of sludge from municipal water
and
waste water
treatment facilities.
The site has never been
permitted to take hazardous materials,
nor have such permits ever
been requested.
The site map indicated that the existing landfill
has
an
area of roughly 1900 ft.
by 1300 ft.
(Agency Rec.
Item
3
and
Supp.
Rec.
Item D).
As noted
in the narrative portion of
the
application
for modification of the existing permit,
the proposed
recontouring lies “above existing contour
800”.
A maximum
contour of 872
feet above mean sea level was proposed,
as
indicated
in bold face on the site map.
The final contours
in
the
plansheet
for
the original permit indicate maximum final
contours of 827 feet above mean sea level.
(Supp.
Rec.
Items
C,D.
The 825
feet figure listed
in the Agency permit reviewer’s
notes appears
to be an error.
See Agency Rec.
Item 8).
The
Board notes that the site map indicates that an area of roughly
600
feet by 200
feet just west
of the center of
the existing site
has elevations
in excess of 830
ft.
The site map also depicts
a proposed extension of the area
of the existing landfill, addition of which land to the south
and
east
of the existing site would more
than double the landfill’s
size.
Concerning
this,
M.I.G,
stated:
“A proposed extension of the existing landfill has
been
in the mill for more than two
(2)
years,
and has
now been re—filed with the County.
Due to SB 172
machinations by the County, and the long delay
therefrom~the site is currently running dangerously
low
in capacity.
65-262
This proposed height increase,
as well as the
proposed areal extension,
is badly needed
in the
area.
Some of the reasons are
as follows:
Closure
of
the City/County Landfill because
of financial ~nd
environmental problems has been seriously discussed
at recent County Board meetings.
The distance tothe
nearest landfill; The practical absence of
environmentally acceptable landfill site locations in
the three
(3)
county area centered by Boone
County;..
.“
The Antioch Decision and The Parties’ Arguments Here
The procedural history of the Antioch decision
is not
entirely clear to the Board, based on the materials from that
action submitted to the Board.
These
include
the unreported
single page Order of May 9, 1984 cited by the Agency
in its
denial letter
(attached hereto as Appendix
1)
and
the
unreported
two page Order of April 23,
1984 (attached hereto as Appendix
2).
Additionally, M.I.G.
in its opening brief
in this matter
attached and
incorporated by reference the Agency’s response to
a
motion for summary judgment,
and a
12 page brief
in opposition
to
that motion filed by the Attorney General (M.I.G.
Brief,
p.
2 and
Attach, 1,2).
As the complaint in this matter was not provided,
and the Circuit Court’s Orders do not describe the nature of the
action, the Board must surmise, based on the nature of the relief
granted,
that the Village of Antioch sought equitable relief
in
the
form of an injunction order against both the Agency and Waste
Management of Illinois, Inc.
(Waste Management).
Waste
Management had sought a permit
to change
the final contours, by
way of vertical expansion,
of the H,00D, Landfill, located within
the boundaries of the Village
of Antioch.
The Agency had issued
the requested permit on June 15, 1983 without proof
of Antioch’s
site location suitability approval pursuant
to Section 39.2 of
the Act.
(Id., Attach.
2, p. 1—3).
The Agency explained that it had not denied the permit,
based on
its interpretation of Section 3(x)(2)
of the Act,
defining “new regional pollution control facility”
as “the area
of expansion beyond the boundary of
a currently permitted
regional pollution control
facility.”
The Agency stated that
it
had interpreted this section
“as not including permit applications under which
only new space above
or below ground surface would be
occupied.
Operating under this interpretation, the
Agency has, between July 1, 1981 and June 30, 1983,
issued at least 99 supplemental permits
to regional
pollution control facilities
in
which additional
or
different space would
be occupied above or below the
ground surface
(this number
includes the permit
in
dispute).
~
Under
these permits, regional
pollution control facilities have included
incinerators, waste treatment facilities,
landfills,
65-263
—4—
and waste storage facilities and the additional
or
different space above or below ground has been
occupied by a variety of objects including berms,
trenches,
changed elevation contours,
equipment,
monitoring
wells and buildings.
A review of supplemental permits
for
the current
fiscal year
(July 30, 1983 to the current date)
has
not yet been made.
If the rate of applications in
this year
is similar
to
the two previous fiscal
years,
approximately 20
to 25 supplemental permits
for
kegiona.
pollution control facilities
in which
new or different space above or below ground level
is
occupied, r~ayhave been issued.
This could
be
a
totol
of
120
to 125 such supplemental peri~its,fo~
which proof of local siting approval was not required
by the Agency.”
(Id.,
Attach.
2,
P.
3—4)
In support of
its interpretation of Section 3(x)(2)
of the
Act,
the Agency argued that the plain meaning
of the terms “area”
and
“boundary”,
as commonly understood,
imply surface area and
not volume:
“Black’s Law Distionary (Revised Fourth Edition)
defines areas as “a surface,
a territory,
a region,”
and defines boundary as “every separation,
natural
or
artificial,
which marks the confines or line of
division of two contiguous estates.”
This common
usage indicates the words
“areas” and “boundary”
imply surface area.
~**
If
the legislature
intended new facilities
to
include expansion of the shape,
or three dimensional
volume occupied by these
items,
it would have not
used the words
“areas” and “boundary”;
it would
rather have used the words “volume” and “shape”
so
that the definition
under Section 3(x)(2)
would
read
“the volume of expansion beyond
the shape
or boundary
of
a currently permitted facility”.
However, the
legislature
used words pertaining
to surface area,
and
its clear intent was thus not to include contour
changes
in the definition of new regional pollution
control facilities.”
(Id.,
Attach.
2,
p.
8).
The Agency further argued
that,
if the court determined that
two constructions could be placed on Section
3(x)(2),
that the
Court
could consider the legislative history of P.
A.
82—682.
Specifically,
the Agency cited
a comment during debate
in the
House
of Representatives upon House consideration of
the
Governor’s September 24, 1981 amendatory veto of the bill as
passed July 1,
1981.
In response
to a question,
the sponsor of
the motion
to accept the Governorts
arnenclatory veto had stated
that
65-264
—5—
“P.
A.
82—682
applies to any new site or old site
that
is expanded beyond
its original bounds.
If
landfills
apply for
a permit to take in one extra
acre, this Bill would apply.”
(Id., Attach.
2, p.410—
11.
Prior
to the Antioch court’s consideration of these Agency
arguments,
the permit holder, Waste Management,
stipulated
to the
April
23, 1984 entry against
it
of an injunction permanently
prohibiting
it from “vertical enlargement of the Antioch Landfill
Site”
(Appendix
2,
p.
2).
Upon its consideration
of the
arguments presented by the Village and the Agency of the motion
for summary judgment,
the Court entered judgment for
the
village.
The June
15,
1983 permit was voided,
and the Agency was
enjoined
from again issuing
any such permit,
based on
the
findings that
“The increase of volume contemplated by WMI and
permitted by the IEPA is
a new regional pollution
control facility and it was the intent of the
legislature
to require local siting hearings for such
expansion.
Any other interpretation would make
the legislation
a
nullity.”
(Appendix 1).
The Agency asserts that it appealed this Order, but withdrew the
appeal (Agency Brief; p.
6)
(but see M.I.G. Reply Brief,
p.
8).
In
the instant action, the Agency states that “not
only
has the Agency abandoned the position
it advanced in Antioch,
but
it
has further
now adopted that decision as its own and applied
it accordingly”
(Agency Brief,
p.
2).
In response
to an argument
by M.I.G.
that the Antioch interpretation should not be applied
to it because
it was not a party to that proceeding,
the Agency
asserted that the precedent should
be followed
to avoid chaos and
continual reinvention of the “wheel
(legal precedent)”, although
admitting that the “precedential nature of
the Antioch decision
is not equivalent
to that of a Supreme Court decision”
(Id.,
p.
1).
As noted by M.I.G.,
the Agency’s brief did not ther~fter
address
its earlier arguments, as adopted by M.I.G..
Instead,
the balance of the brief contains an
review of the case law
concerning interpretation of the six criteria of Section 39.2.
M.I.G.’s final
argument for rejection of the Antioch
interpretation of Section 3(x)(2)
is one of policy,
relating
to
the 120
odd permits issued by the Agency prior
to Antioch.
M.I.G. asserts,
in essence,
that the validity of these permits
is
uncertain, because of their issuance without
local approval
pursuant
to Section 39.2 of the Act (M.I.G.
Reply Brief,
p.
2).
Application
of Stare Decisis
The threshold question
is to what extent the Board
is bound
61-265
—6—
to adhere
to the holding
in Antioch
of
the Circuit Court
of the
Nineteenth Judicial Circuit
in Lake County,
based on
the doctrine
of stare decisis.
This doctrine may apply
——
as
res judicata and
collateral estoppel may not
——
when
a second action i~between
different parties and from a different occurrence, yet the facts
of the second case are substantially the same as the first
case.
American Emp.
Ins.
CO.
V.
Yellow Cab Co.,
49
Ill. App.
3d
275,
364 N.E.2d 948
(1977).
Here, as in Antioch,
the issue is
whether Section 3(x)(2)
of the Act, defining
“new regional
pollution control facility” by
its terms encompasses
the vertical
landfill expansion proposed by petitoner, therefore precluding
i~gencypermit issuance until local site location suitability
approval
is obtained pursuant to Section 39.2.
j-ts noted by the Appellate Court
for
the Fifth District
in
Marathon Petroleum v.
Briceland,
75 Ill.
App.
3d
189,
394 N.E.2d
44
(1979):
“As the Illinois Supreme Court said
in Neff
v.
George
(1936),
364 Ill.
306,
4 N.E.2d 388
***
The doctrine has more
or less force, according
to the nature of
the question decided.
Stated
in
its
general
and simplest terms,
the doctrine of stare
decisis expresses the policy of the courts
to stand
by precedents and not to disturb settled points.
~
But
where
it
is clear
that the court has made a
mistake,
it will not decline
to correct it, although
it may have been reasserted and acquiesced in
for
a
long number
of years, especially if the
former
decisions are injurious and unjust
in their operation
(364 Ill,
at 308—309, A N.E,2d
at 390—391;
for more
recent discussions of the doctrine of stare decisis
by the Supreme Court,
see Maki
v.
Frelk
(1968),
40
Ill.2d 198, 239 N.E.2d 445,
and Molitor
v.
Kaneland
Community Unit District No.
302
(1959),
18 Ill.2d
11,
168 N.E.2d 89.)” 394 N.E.2d at 46.
It
is well settled Illinois law that each trial court
is
bound by decisions of all Illinois Appellate Courts (except
in
cases of conflict between Appellate Districts
in which
case
a
trial court
is bound by decisions
in its own district),
and that
Appellate Courts are bound by decisions of the Supreme Court;
this
is the case even
if the
inferior tribunal believes the
superior one has made “bad
law”, ~
People v.
Thorpe,
52
Ill.
App.3d 576 376 N.E.2d 960 (1977), People
v. O’Neal 40
Ill. App.
3d 448
352 N.E.2d 282
(1976).
However, as MI.G.
points out,
courts are not bound to follow decisions of equal
or inferior
courts,
e.g. Village of Northbrook
v.
Cannon,
61
Ill. App.3d 315,
377 N.E.2d 1208
(1978), although the rationale used by such
courts may be awarded deference.
In
the
context of this proceeding,
the Board
finds the
circuit court
to be
an equal, rather than a superior,
tribunal.
65-266
The Act has vested
in the Board
and the circuit court concurrent
jurisdiction
to hear enforcement actions, People ex
rel,
WJS et
al.
v.
Charles Janson,
57
Ill.
2d 451, 312 N.E.2d 62
(1974), but
Section 41(a)
has vested jurisdiction to review Board~actions
exclusively in the Appellate Court,
The Board need not,
therefore adhere
to Antioch as a matter
of law.
what the Agency’s position was
in 1983
is not on point
because
the Board was not presented with the issue
at that time.
However,
there are policies which militate against
disturbance of
a precedent which has served as the basis
for
Agency permit review in the two past years,
nothwithstanding
the
Antioch decision’s lack to detailed examination of the arguments
Li~eLt~
~
A
number of these were articulated
by
the
Fifth
District Appellate Court in
its consideration of the arguments
presented in Marathon Oil Co.
V.
Briceland, supra.
In that case
Marathon sought a declaratory judgment, requesting
the court
to
reverse its interpretation of Rule 302(k)
of the Board’s Chapter
3: Water Pollution regulations as announced by the Court
in Olin,
Corp.
v.
IEPA,
54
ill. App. 3d 480, 370 N.E.2d
3
(1977).
The
court declined
to do
so, stating
“Even if we were convinced that our prior
interpretation of Rule 302(k) was erroneous,
which we
are not, we would
be slow to change
it where, as
here,
it has been adhered
to since our decision by
the administrative agency charged with its
enforcement,
and
is urged before us now by that
agency as the proper interpretation.
~
Becatise,
like legislation,
administrative
rules and
regulations can be amended, their
judicial
construction should not be lightly changed.
(See
Illinbis Brick Company
v.
Illinois m(1977), 481 U.S.
720,
97 S,Ct. 2061,
52 L.Ed2d
707, where the court
speaks of the “presumption of adherence to
~
prior
decisions construing legislative enactments
***.~)
~
For
us
to reconsider
the rule here would only
lead to new confusion
in an area of law once confused
and now settled, ~
As Mr. Justice Brandeis stated,
dissenting
in Burnet
v. Coronado Oil and Gas Company
(1932), 285 U.S.
393, 406, 52 S.Ct,
443, 447, 76
L.Ed.
815:
‘Stare decisis is usually the wise policy,
because
in most matters
it
is more important that the
applicable rule of law be settled than that it be
settled right
Citations,
This
is commonly true
even where
the error
is a matter of serious concern,
provided correction can be had by legislation.’” 394
N,E.2d 46—47.
The Board believes that
the
situation here
is best resolved
by deference
to the Antioch interpretation for the reasons
articulated by the Marathon court,
The Agency has been
65-267
—8—
implementing that interpretation for
the past two years,
and has
“adopted
it as its own”.
The area of law is now settled.
The
legislature has been free
to change
the Antioch court’s
interpretation,
and the Agency’s implementation,
of Section
3(x)(2)
for two years and has not done
so, although amendments
have been made
to P.A.
82—682 during that period,
e.g4
P.A.
83—
1522, effective July 1, 1985 and amending Section
39, 39.2,
39.3
and 40.1 of
the Act, and S.B.1l3, currently awaiting action by
the Governor, amending Section 39.2.
M.I.G.’S arguments are not
so compelling as
to overcome the
Illinois Brick “presumption of adherence”
to the Antioch
interpretation.
The vertical expansion of some 40—odd feet
proposed by M.I.G.
is not
a de minimum one,
While the Board
takes notice that the site location suitability process can be
time consuming, particularly in the event of appeals from the
initial decision by local government, and that a landfill’s
disposal capacity might well be exhausted before such process can
be completed, there are the natural consequences of the
legislature’s bifurcation of the siting and permit review
functions formerly in the sole province of the Agency.
As to
M,I,G.’s argument concerning
the pre—Antioch permits issued by
the Agency,
the Board would question whether the decision would
or should
be given retroactive effect,
Furthermore, the Board’s holding
is highly compatable with
Section 39.2 criteria.
Several
of the criteria which,
from the
basis of local review,
are as much impacted by vertical as areal
expansion.
Section 39.2(a)(l)
clearly contemplates
a volume
rather than areal consideration in determining the necessity of
the site to accommadate
the waste needs
of the area intended
to
be
served.
So too are the considerations of protection of the
public health and welfare under Section 39.2(a)(2),
the question
of minimizing incompatibility with the character of the
surrounding
area and the effect on property values
under Section
39.2(a)(3),
as well
as the consideration of traffic patterns
under Section 39.2(a)(6).
Not only can these factors be
impacted by vertical
expansion,
but such expansion could potentially have much greater
impact than areal expansion;
an increase
of volume by vertical
expansion could well have more effect than areal expansion by one
acre.
For all
of the foregoing reasons,
the Board
finds that the
Agency correctly denied M,I,G.’s application for modification of
its 1972 development permit to allow for vertical expansion of
the Bonus Landfill by reason of M,I.G.’s lack of compliance with
Section 39.2 of the Act,
The Board wishes
to emphasize
that this result
is not
to be
construed as a finding that the procedures of Section 39.2 must
be utilized for every proposal
to alter
the contours of
a
landfill; Section 39.2 is triggered by a proposal
to increase the
65-268
—9—
waste disposal capacity of a site by expansion in any direction
beyond the dimensions contemplated by permits issued prior
to
July 1,
1981.
This Opinion constitutes the Board’s findings oftfact and
conclusions of law in this matter.
ORDER
The Agency’s March 28, 1985 denial of the January 24,
1985
application of M.I.G.
Investments, Inc.
and United Bank of
Illinois
for
a permit to modify the final contours of the Bonus
Landfill, Boone County,
is sustained,
for the
reasons expressed
in the foregoing Opinion
IT IS SO ORDERED.
J.
Theodore Meyer dissented.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
/5~3~day of
c~Z._~—~yc_,4,
,
1985, by a vote
of
~~---/
Ill
Control Board
65-269
