ILLINOIS POLLUTION CONTROL BOARD
January 21,
1982
AMERICAN FLY ASH CO.,
et al.,
)
Petitioner,
)
PCB
81—188
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by 3. Anderson)~
American Fly Ash
(AFA)
applied for a permit for a solid
waste
management site which the parties have impliedly assumed
is an
SB 172,
(P.A.
82_0682)* “new regional pollution control
facility”.
Application was made July
27,
1981 and the permit was Iranted by
the Agency on October 27,
1981.
This matter is before the Board
on the appeal
of only one condition of that permit,
requiring
“written evidence that the applicant and Tazewell County have an
agreement relative to road maintenance and load limits.”
In
ZYX-Dixon
v.
IEPA,
PCB 81—167
(December 3,
1981) the Board
noted the chronological legislative history of
SB
172.
Briefly,
again,
SB 172 was passed by the legislature and consequently reFer-
red for gubernatorial review and action,
if any,
on July
1,
1981.
The Governor issued an amendatory veto message on September 24,
1981.
The changes suggested
in the amendatory veto were accepted
by the Senate October 15 and by the House October 28,
1981.
The
changes were thereafter certified by the Governor November 12,
1’~81.
In
ZYX,
for reasons there stated and incorporated herein
by reference,
the Board determined that SB 172 was a procedural
statute legislatively intended to have retroactive application
in
a situation where
a) the permit for what has been defined by SB
172 as a “new regional pollution control facility” was initially
*In pertinent part,
SB 172 amends Section 39(c)
of
the
Environmental Protection Act to provide that “no permit for the
development or construction of
a new regional pollution control
facility may be granted by the Agency unless the applicant submits
proof
to the Agency that the location of said facility has been
approved by the County Board...if
(the facility is to be located
in
an unincorporated area.”
New Section 3(t) defines a “new
regional pollution control facility” as one “initially permitted
for development or construction after July 1,
1981.”
45—
159
applied for after July 1,
1981, and b) was denied by the Aqency
prior
to November 12,
1981,
the effective date of
SB 172.
The
ZYX action was dismissed, the Board holding that both it and
Th~Agency would
lack statutory authority at this time
to cause
issuance of a permit where county approval had not been receive-i.
Before this appeal can proceed, the threshold question
is
whether there exists
a validly issued permit over which the Board
can exercise jurisdiction, or whether Sn 172 retroactively applies
to invalidate this permit.
As the Agency in its December 24,
1981
brief,
and AFA
in
its December
29 brief correctly point out,
a
retrospective application of
SB 172 could invalidate all landfiU
development and construction permits issued by the Agency in the
“gap” between July 1,
1981 and November 12,
1q81.
The Board has not discovered direct evidence
of legislative
consideration of the effect oE
SB 172 on permits issued during
the “gap”.
However,
in House debate immediately prior to rouse
passage
of
SB 172 on July 1,
1981,
Rep,
Breslin perhaps indirectly
addressed the
issue during her presentation of the bill,
In
response
to
a question by Rep. Keiley as to whether persons could
receive permits without local
approval “if they hadn’t done
so by
the first”,
Rep. Breslin stated that
“If EPA has not granted them a permit by the time this
Bill
is signed then the siting provisions of
this Bill
will apply to them.”
(Transcription Debate,
82nd Iii.
General Assembly.
House of Representatives,
3uly 1,
1981 at 3).
On the other hand,
the Board again notes that the Governor’s
amendatory veto message of September 24,
1981 specifically referred
to this date in stating that “Only those new sites seeking ~irst—
time approval
after July
1,
1981 should be included.”
The Board
continues to find the legislature’s acceptance of the amendatory
veto to be more compelling evidence that
a retroactive effect
was intended.
To construe the statute as not having retroactive
application is to render meaningless
the July
1,
1981 permit
issuance deadline solely for “new regional pollution control
facilities,”
The statute does not make exceptions,
or otherwise
contain
a savings clause
for such facilities not possessing
a
permit on or before July
1,
1981.
AFA and the Agency argue that SB 172 should not be given a
retroactive effect
in this case,
even putting aside the question
of
legislative intent, on the ground that to do
so would deprive
AFA of
a vested property right.
The Agency points out that
Hogan
v. Bleeker,
29
Ill.
2d 181,
193 N.E.2d at 848, upon which
the Board relied in
ZYX,
goes on to hold that
“However, even procedural or remedial statutes are
not construed retroactively where
to do so would
deprive one of
a vested property right
entitled
to
constitutional protection).” 193 N.E.2c1 at 849.
45—160
3
AFA
has
drawn
the
Board’s
attention
to
numerous
cases
involving the retroactive effect of legislation which changes
prior
zoning.
In
the
case most nearly on point Deer Park
Civic
Assn.
v. C~y~~Chicagp,347 Il1.App.346,
106 N.E.2d 823
(1st
~p.t5Ist. 1952) the court refused to issue a judicial declaration
that a building permit,
previously
issued, had been revoked by
an amendatory ordinance changing the zoning from manufacturing
to family dwelling.
The general rule stated there
that
“any substantial
change of position, expenditures,
or incurrence of obligations under a building permit
entitle the permittee to complete the construction
and use the premises
for the purpose authorized
irrespective of subsequent zoning or changes
in
zoning”
(106 N.E.2d at 825).
This general rule has been subsequently embraced and applied
by
the Supreme Court
~.
Pioneer_Trust
arid
Savip~
Bank
V.
Co~p~y
of
Cook,
71 1112d
5.10,
377 N.E.2d 21
(1978).
In Exhibit
A to AFA’s
brief,
and the affidavit of AFA
Operations/Products Manager Mitchell
L. Nowicki,
AFA details
the
1980 and 1981 month by month expenditures made in selection of
the Tazewell County
site,
preparation of the permit application,
and participation in a public hearing concerning that application
held in Pekin on October
1, 1981.
A total
of approximately
$96,000 was expended,
$49,000 by AFA and the remainder by Common-
wealth Edison Co.
(The AFA site is to receive fly ash and wet
bottom boiler slag generated by Commonwealth Edison.)
ATh’s
expenditures were all made prior to June,
1981.
Between July and
October,
1981 Commonwealth Edison expended
in excess of $34,000.
Between November 1-12,
it expended an additional
$4,800.
AF2\
contends that the expenditure
of these
funds has given
AF1\
a
vested property right
in the October 27, 1981 permit.
The Agency does not refer to this body of zoning
law.
It
does, however,
draw the Board’s attention to cases
in which the
Agency and the Board have been held to be equitably estopped
from revoking sewer construction permits
granted by the Board’s
predecessor Sanitary Water
Board,
where the developers had
expended substantial sums of money and incurred heavy liabilities
in reliance upon the issuance of these permits Wachta
v.
PCB,
8
Ill.
App.3d
436,
289 N.E.2d 484
(1972),
Bederman
v.PCB,
22
Ill.
App.2d 31,
316 N.E.2d 785
(1974),
Kaeding
v.
PCB,
22
Ill.
App.3d
36, 316 N.E.2d 788 (1974).
Finally,
the Agency refers to Martefl.
v~au~y,511
F.
Supp.
729
(N.D.
Ill.
1981), holding
that the
~qency’s
denial
of
an
operating
permit
for
a
sanitary
landfill
on the
basis
of
unad~udicated
charges
of
prior
misconduct
was
impermissible.
Expenditure of substantial
sums
in
reliance
on
a developmental permit was found to have created a legitimate
claim of entitlement
to an operating permit,
a possessory
interest
in real
estate,
and a liberty interest deserving of
constitutional protection.
45—16 1
4
As balanced against the
Board’s
finding
of
legislative
intent
that SB 172 be given retroactive application,
the Board
finds
that
AFA’s
allegations
and
evidence are of insufficient wethht
to
“save”
its permit by means of an equitable estoppel.
The gravemen
of
Wachtae~al~
was the permittee’s expenditure of substantial
sums
in ~easonahle reliance on issued permits.
The $4,800 spent
in
November,
1981
arguably in reliance on the issued permit was
expended
by
Commonwealth
Edison, not AFA.
AFA made no expenditures
later
than
June,
1981.
It
cannot
here claim
estoppel
based
on
actions taken by another entity,
not party to this action,
The Board must observe that the reasonableness of Edisori~s
reliance on the permit in making even this insubstantial expend-
iture is highly questionable.
The permit was issued well after
the Governor’s arnendatory veto message of September 24,
1981
and
only one day before final legislative action was taken on
Sri
172
on October 28,
1981 accepting the Governor’s veto~suggestedamond’~
ments,
Under these circumstances,
the reasonable person would
be
lead to believe at the very least that there was
a “cloud” over
the
permit.
In
addition, the initial
legislative passac~eof
SB
172 on July
1,
1981 makes the reasonableness of Edison’s $34,000
expenditure between July and October,
1981 similarly questionable,
in view of the “risk”
of gubernatorial acquiesence to the bill as
passed July 1, 1981.
Given the Board’s
findings on the equitable estoppel
issii~,
the Board need not exercise any
authority
it may possess to
ac1~udicatethe constitutional
“vested property rights” claims,
although the Board notes that the zoning cases’
tests
for
concluding if and when property rights have vested are nearly
identical
to those
in the environmental cases regarding
application of equitable estoppel.
This appeal
is dismissed.
Giving
SB
172
retroactive effect,
the Board finds that no valid permit exists over which the Board
can
exercise jurisdiction.
While
the
Board
agrees
that
this
might
he considered a harsh result,
it
believes
that
it
is
the
result
intended by the legislature.
IT
IS
SO ORDERED,
I,
Christan L.
Moffett, Clerk
of
the
Illinois
Pollution
Control Board, hereby certify that the above Order was
adopted
on
the
~
day of
~
~,
1982
by
a
vote
of
(3
Illinois Polluti
45—162