ILLINOIS POLLUTION CONTROL BOARD
August 7, 1975
3ROW!~UNG-FERRIS INDUSTRIES OF
ROCKFORD, INC.,
Petitioner,
)
v.
)
PCB 75—194
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
On May
1~1975,
Browning—Ferris Industries of Rockford,
Inc. (BFI), file~tits Permit Appeal with the Illinois Pollution
Control Board (Board). Petitioner alleged that the permit con-
ditions in paragraph 5 and Standard Condition 4(c) in its de-
velopmental perz~it issued by the Illinois Environmental Pro-
tection Agency (Agency) on February 27, 1975, were void and
invalid. The 1~ermit conditions in issue read as follows:
Special
condition “5. Construction work and/or development of the pro-
posed site is specifically prohibited until such
site has been zoned, or has received a special
use permit or is in compliance with all zoning
lrIwS
for such intended purposes.”
Standard
condition “4. This permit
. . .
(c) does not release the permitee
from compliance with other applicable statutes of
the State of Illinois, or with applicable local
laws, regulations or zoning ordinances.”
The Petitioner reciuested that the language be stricken and that
the permit be amended accordingly.
The Board set the case for hearing by its Order of May
22, 1975. On June 27, the County of Ogle sought intervention,
stating that the proposed landfill would be located in Ogle
County and that it. would be adversely affected if the language
in question were stricken from the Agency permit. The Agency
filed its Answer to Petitioner’s Permit Appeal on July 2 and
requested the B3axd to affirm the Agency’s right to impose con-
ditions 4(c) a~d5. On July 31, 1975, BFI filed with the Board
a waiver giving additional time to August 15 for a decision.
18—
320
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The he~’ringwas held on July 2, 1975, in Chicago,
Illinois. At that time the counties of Ogle and Winnebago were
granted leave to intervene. A Stipulation of Facts and Legal
Issues (Stipulation) was entered into the record at the hearing.
In pertinent part, the Stipulation stated:
“2. On the 27th day of February, 1975, the Agency
issued BFI a cievelopmental permit known as permit No. 1975-ll-DE.
“3. In relevant portion, that permit provides as fol-
lows:
A. paragraph 5:
Construction work and/or development of the
proposed site is specifically prohibited until
such site has been zoned, or has received a
special use permit or is in compliance with
all zoning laws for such intented purposes.
P. Standard Conditions, paragraph 4(c)
This permit
...
does not release the permittee
from compliance with other applicable statutes
of the State of Illinois, or with applicable
local laws, regulations or zoning ordinances.
“4. By and through the issuance of that permit, the
Agency has acknowledged the environmental suitability of the site
and proposed facility, but is attempting to lodge ultimate authority
to determine the propriety of the proposed site location to the
County of Ogle, that local governmental unit within which the pro-
posed site is Located.
II
LEGAL ISSUES
“1. BFI challenges the Agency’s authority to establish
the conditions precedent to site development set forth in para-
graph 5 of the Peru~itand Standard Condition 4(c) thereof on the
basis of the following legal theories:
A. Said conditions precedent are void because
they are beyond the purview of, and the
authority given the Agency by, the Illinois
Environmental Protection Act (hereinafter the
‘Act’).
B. Said conditions precedent are void as an
arbitrary, capricious and unreasonable ad—
Ministration of the Act because said con-
ditions add to the Act’s and the Board’s permit
application procedures additional administrative
proceedings, which proceedings substantially
duplicate the Agency’s own procedures and which,
18
—
321
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therefore, unjustly increase the monetray
cost and time necessary to develop sanitary
landfills.
C. Said conditions precedent are invalid as an
attempt to delegate rule and regulation making
authority to units of local government and an
effective attempt to remove such power from
the Board.
“2. As to all issues set forth in the prior paragraph,
BFI prays for entry and issue by the Board of a final order di-
recting the Agency to amend the subject paragraph by deleting
the following portions thereof:
A. paragraph 5;
B. that language in Standard Condition 4(c) which
required BFI to comply ‘with applicable local
laws, regulations or zoning ordinances.’
“3. The Agency submits that the disputed portions of
the permit are valid for the following reasons:
A. Said conditions precedent are within the pur-
view of, and the authority given the Agency
by, the Act, and are, therefore, a proper,
constitutional exercise of its authority.
B. Said conditions precedent do not add additional
administrative proceedings to the Act’s and the
Board’s permit application procedures.
C. Said conditions precedent do not substantially
duplicate the Agency’s own procedures.
D. Said conditions precedent do not delegate rule-
making authority to local entities but rather
are a reliance on those local entities who
alone presently have the requisite authority
to decide zoning questions.
“4. As to all the issues set forth in the prior para-
graph, the Agencj prays that the Board dismiss this matter, or,
in the alternativc~, enter an order affirming the right to impose
the disputed conditions.”
At the close of the hearing, all parties and intervenors were~.
given until July 21, 1975, to submit briefs to the Board regarding
the legal issues raised in the case.
PetitiDner first argues that Respondent has no power or
authority to impose the conditions in paragraphs 4(c) arid 5 as
part of its pernilt agreement. The Agency admits in its brief
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that it does not have authority to establish standards for
location of refuse disposal sites:
“The Fnvironmental Protection Agency does not presently
have the authority to resolve conflicting land use questions.
The Agency thrives its authority to act solely from the General
Assembly through the Environmental Protection Act and from the
Pollution Control Board through the heretofore adopted regulations.
As noted above, Sections 22 and 27 of the Act gave the Board,
not the Agency, the authority to establish standards for the
location of ref u~edisposal sites.
. . .
Therefore, the Agency
does not presently have the authority to resolve conflicting land
use questions nor the standards necessary to govern its decisions
regarding the sarLe.
“If the Agency were to begin resolving land use questions
now, it would he acting beyond the purview of its statutory grant
of authority. It has often been said that the jurisdiction and
powers of an a~1ministrativeagency are determined solely by its
creator.
. . *
The General Assembly has not granted the Agency
the power to decide zoning and land use questions. It has given
the Board the authority to establish standards for the location
of refuse disposal sites.”
Intervenors argue that since existing regulations do not
contain considerations for zoning classifications, the Agency
can exercise discretion under Section 39 of the Illinois Environ-
mental Protection Act (Act) and “give deference to local zoning
ordinances and local zoning bodies.” Section 39 of the Act reads
in part:
“. . .
In granting permits, the Agency may impose such
conditions as may be necessary to accomplish the pur-
poses o~the Act, and as are not inconsistent with the
regulations promulgated by the Board herewith.”
To support its position that the Agency can include local zoning
conditions in its permits, intervenors quote language from Cit
of Chicago v. Pollution Control Board 59 111.2 44, 322 N.E.Z 1
(1974) in whicK~he Illinois Supreme~CourtStated:
“The State has legislated in ~this field by the adoption
of the Environmental Protection Act, which did not express the
intent that the State should exclusively occupy this field, but
rather provided in section 2 (a) (iv) Illinois Revised Statutes,
1973, Chapter lii 1/2, par. 1002 (a) (iv) that it is the obli-
gation of the State Government ‘to encourage and assist local
governments to adcpt and implement environmental—protection
programs consistent with this Act.’ We conclude therefore that
a local governmental unit may legislate concurrently with the
General Assembly on environmental control. However, as expressed
by that portion of the constitutional proceedings referred to
above, such legislation by a local governmental unit must con-
form with the minimum standards established by the legislature.”
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We do not find intervenor’s arguement persuasive because the
Court’s language does not state that the Agency can require com-
pliance with local zoning ordinances; rather this language goes
to the issue of whether a local governmental unit can regulate
concurrently and independently in line with minimum standards
established by the legislature.
We therefore conclude that the Agency has no independent
rule making power to unilaterally adopt regulations independent
of Board regulations or necessary Agency procedures to carry out
the purpose of the Act.
Petitioner also argues that the Agency cannot incorporate
or adopt local zoning limitations into its permit requirement
because “by requiring compliance with paragraph five and standard
condition four(c), the Environmental Protection Agency is attempt-
ing to delegate rule and regulation making authority to units of
local government and effectively attempting to remove the same
from the Pollution Control Board.
“By making compliance with lOcal zoning procedures a con-
dition precedent to sanitary landfill development, the Agency is
in effect vesting local governmental units with a veto power over
sanitary landfill location. Thus, no matter what the statutes,
or rules, regulations or procedures adopted by the Board pursuant
thereto provide, the ultimate~determination of whether or not a
particular sanitary landfill is appropriate will be made by local
governments. ThLS fact, if permitted to exist would effectively
emasculate this Board and destroy the Environmental Protection
Act insofar as it attempts to create a unified state-wide program
for environmental protection as it relates to sanitary landfills.
The Board, rather than having authority to ~determine, define and
implement the environmental control standards applicable in the
State of Illinois~..’ (Ill. Rev. Stat. 1973, ch 111 1/2 para. 1005)
would be an advisory body only; its standards would be applicable
only insofar a~cities and counties fail to exercise their effec-
tive veto power.”
The Agency responds by stating that neither the General
Assembly nor Board have acted to effectively preempt~the field
now occupied by local zoning regulation. In the absence of action
by the General Assembly or the Board, local authorities can con-
tinue to resolve and use questions. The Agency further argues
that no delegation of authority issue is involved since the Agency,
as it has already admitted, does not have authority to decide
land use zoning questions:
“In relying on local entities to resolve land use and
zoning questiorAs, the Agency is not delegating authority over
these questions to local entities, but relying on these local
entities who alone clearly have the present authority to resolve
these questions.
. .
Since the Agency presently does not have
the authority to decide zoning and land use zoning, it is not
delegating its authority in this regard to local entities.
. .
Section 39 of the Act gives the Agency the authority to grant
permits and the z~uthorityin granting permits to ‘impose such
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conditions as may be necessary to accomplish the purposes of
this Act, and as are not inconsistent with the regulations promul-
gated by the Board hereunder.’ The Agency must effectuate the
intent of the Act and the purposes of the legislature in passing
the Act. The Agency, however, must for the time being rely on
local entities, ~ho have the requisite authority and standards
to resolve land use questions and, thereby, effectuate the intent
of the Act.”
Petitioner refers to the case of Carlson v. The Villa9e
of Worth 25 Ill, App3 315, 322 N.E.2 852 (1974, appeal docketed
No. 47334, Illimois Sup. Ct.) where facts similar to those in
this case were presented for decision by the court:
“Defendant Village of Worth further argues that re-
gardless of the field of sanitary landfill licensing and regu-
lation being preempted, the Environmental Protection Agency, in
the exercise of ~.csstatutory discretion, has legitimatized
defendant’s ordinance by conditioning plaintiff’s permit upon
compliance with applicable state statutes, local laws, regula-
tions and zoning ordinances.
. . .
However, defendant’s reliance
on the restatement of the rule in plaintiff’s permit is unfounded.
“In view of the effect of the Environmental Protection
Act on local regulatory power, this condition could be considered
as merely expressing the obvious, that a permittee is not exempt
from observing local regulations left viable after the passage
of the Act.
. . .
Moreover, if the condition were intended to
authorize regulatory ordinances such as that enacted by defendant,
it would be invalid for two reasons. It would constitute an im-
proper attempt to expand the provisions of the Environmental
Protection Act by rule to give local public units authority over
areas which the legislature has decreed by the Act that they should
not have.
. . .
It would also constitute an improper delegation
of the discretion that the legislature vested in the Environmental
Protection Agency, contravening the legislative intent that the
decision on licensing refuse disposal facilities be made by that
agency.”
The Agency responded to the Carlson argument as follows:
“The Carlson Court did state that there was an ‘imp1~cit
holding in the O’Connor O’Connor v. City of Rockford 52 Ill.’ 360,
288 N.E.2 432 (1972) case that the Environmental Protection Act
has preempted the field of sanitary landfill licensing and regu-
lation.
. •‘
The Carlson case further stated, ‘It is ciear from
the Environmental Protection Act, its legislative history, and
preceding legislation in the same area that the General Assembly
intended to thereby exclude any authority of local political
entities which could interfere with or frustrate the objective
of establishing a unified state-wide system of environmental
protection.’ The Agency believes the O’Connor and Carlson
cases can be distinguished from each other and from the case at
hand. The Agency does have the authority to license (through the
18— 325
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permit procedure) and regulate (through surveillance, variance
and enforcemeht activities) sanitary landfills. Therefore, after
Carlson, local entities do not. However, as noted above, the
Agency presently does not have the authority to resolve land use
and zoning questions.”
We agree with the logic of the Carison court regarding
Special Condition 5. The Agency cannot resolve zoning questions
by incorporating local zoning regulations into its permits.
While the Agency must carry out its duty under Section 39 of the
Act, it cannot d3 so by delegating its authority to local entities.
Therefore, Special Condition 5 is void and shall be stricken from
Petitioner’s permit. According to Sections 27 and 39 of the Act,
factors such as “the existing physical conditions, the character
of the area in”cived, including the character of surrounding land
uses, (and) zoning classifications” should be considered in deter-
mining the environmental suitability of a sanitary landfill site
and in issuing a permit thereto, but these factors should be con-
sidered directly by the Board and Agency, rather than this
responsibility being delegated to a unit of local government.
Even though the Board and Agency rule on the environmental
suitability of landfill sites on the basis of uniform state-wide
Regulations an~Ac’ency permits are issued accordingly, local
governmental units may have stricter requirements if they also
meet the minimrm standards established by the Board in providing
for adequate disposal sites. Within this context, Standard Con-
dition 4(c) need not be stricken since it only applies to “applic-
able local laws, regulations or zoning ordinances.” We read 4(c)
as the Carlson court did, i.e. “a permittee is not exempt from
observing local regulations left viable after the passage of the
Act.” The condition was not intended to authorize regulatory
ordinances which frustrate or interfere with implementation of a
state—wide program. Rather, such a condition or statement is in-
serted to give the permittee notice that a permit does not relieve
him of those ordinances or local controls still in force.
Intervencrs argue that in O’Connor the Supreme Court
“enjoined defendants from proceeding with their landfill ‘until
the said defendants shall obtain a permit granted by
the
Agency.
“
The intervenors argue that since the Court was fully aware that
Agency permits contained the disputed conditions and since the
Court did not denounce such conditions, that the Court was in
fact supporting sich a procedure. We do not believe the Court
expressed any viewpoint on the issue before us in this proceeding.
Petitioner’s third issue, that conditions 4(c) and 5 are
void as arbitrary and capricious will not be considered because
of our rulings on other issues in this case.
This constitutes the findings of fact and conclusions of
law of the Board,
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ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Standard Condition 4(c) is valid and therefore is
retained in Petitioner’s permit No. 1975-11—DE.
2. Speciel Condition 5 is void and is hereby stricken
from Petitioner’s permit No. 1975-11-DE. This permit, as
amended, shall in all other respects remain in full force and
effect.
I, Christan
L.
Moffett, Clerk of the Illinois Pollution Control
Board, hereby cer4ify that the above Opinion and Order was
adopted on the
7 ‘
day of August, 1975, by a vote of
to
p
Illinois
:ontrol Board
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