RE CE ~lV ED
Ci F~iCSOF~
DEC 26 2003
STAVE OF ILLINOIS
UNITED DISPOSAL OF BRADLEY,
INC.,)
PoI1ut~oflControl
Board
And MUNICIPAL TRUST & SAVINGS
)
BANK as trustee under Trust 0799,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
Dorothy M. Gunn, Clerk
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
1021 North Grand Avenue, East
100 West Randolph Street
P.O. Box 19274
• Suite 11-500
Springfield, IL 62794-9274
• Chicago, IL 60601
Jennifer J. Sackett Pohlenz
Querrey & Harrow, Ltd.
175 West Jackson Street
Suite 1600
Chicago, IL 60604
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a RESPONSE TO PETITIONERS’ MOTION FOR SUMMARY JUDGMENT, copies of
which are herewith served upon you.
Respectfully submitted,
ILL~ SE
ONME4TAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 23, 2003
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PCB No. 03-235
(Permit Appeal)
NOTICE
RECE!VP~
CLERK’c
flp~c~
BEFORE
THE POLLUTION CONTROL BOARD
DEC
2 6 2003
OF THE STATE OF ILLINOIS
STATE
OF ILLINOIS
UNITED DISPOSAL OF BRADLEY, INC.,)
POllUtion
Control
Boarc~
And MUNICIPAL TRUST & SAVINGS
)
BANK as trustee under Trust 0799,
)
Petitioner,
)
PCB No. 03-235
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, 101.504 and 101.516, hereby respectfully
responds to the Motion for Summary Judgment (“Petitioners’ motion”) filed by the Petitioners,
United Disposal of Bradley, Inc. and Municipal Trust & Savings Bank, as Trustee Under Trust
0799 (“United Disposal,” collectively). In response to the Petitioners’ motion, the Illinois EPA
states as follows:
I. INTRODUCTION
In the Petitioners’ motion, there is a consistent argument that the Illinois EPA
erroneously based its final decision under appeal on the outdated distinction between a “non-
-
regional pollution control facility” and a “regional pollution control facility,” such that the
Illinois EPA failed to take into account the finding of a district court that certain provisions of
the Illinois Environmental Protection Act (“Act”) were unconstitutional. Petitioners’ motion, p.
2. This argument is wrong, both in its legal analysis and its purported characterization of the
Illinois EPA’s decision.
The Petitioners also take issue with what they perceive to be a flawed procedure
employed when the subject permit application was reviewed. United Disposal argues that the
1
application sought only a change to the facility’s operating permit, and as such did not require
any proof oflocal siting approval. Further, United Disposal argues that the Illinois EPA failed to
conclude its completeness review of the permit application within the time allowed. The
Petitioners’ arguments are without merit, as -they do not take into consideration the nature ofthe
permit application, the underlying permits already issued to the facility, and the relevant time
periods set forth in the Board’s regulations.
As will be addressed more fully below, the Petitioners have not advanced any meritorious
arguments that would meet their burden ofproof. Accordingly, the Illinois EPA requests that the
Board issue an order affirming the Illinois EPA’s final decision.
II. THE ILLINOIS EPA CORRECTLY APPLIED THE LAW
AND WAS CONSISTENT WITH THE TENNSV CASE
The Petitioners argue that the only permit condition sought for modification was special
condition 9 of the operating permit. They also argue that the legal authority by which that
condition was originally imposed was later found to be unconstitutional by the court in Tennsv,
Inc. v. Gade, Nos. 92-503, 93-522 (S.D. Ill. 1993), 24 ELR 20019, and therefore any permit
condition purporting to continue the effect ofthose statutes should likewise be found to be void.
The Petitioners then claim that even if the condition is considered on its fact, it is both an
unconstitutional restriction of commerce and is vague. Finally, the Petitioners argue that by
denying the subject application on incompleteness grounds, the Illinois EPA was in effect
applying a permit condition for which the Illinois EPA no longer has statutory authority.
Petitioners’ motion, p. 8.
The flaw in these arguments is that the Illinois EPA’s issuance ofthe final decision imder
appeal was consistent not only with the Act as it now reads, but also with the Tennsv holding.
What must first be reviewed is the exact wording and holding of the Tennsv case. The
Petitioners have interpreted and portrayed that case well beyond the plain and clear language of
2
the court. In Tennsv, the court considered a challenge brought by the plaintiffs that certain
provisions ofthe Act were unconstitutional in that they discriminated against operations handling
out-of-state municipal solid waste versus operations handling locally generated municipal solid
waste in contravention ofthe Commerce Clause. On July 8, 1993, the court issued its opinion
that portions of Sections 39.2, 3.32 and 22.14(a) of the Act (415 ILCS
5/39.2,
3.32, 22.14(a))
were unconstitutional as applied to interstate municipal solid waste. The Petitioners go to great
pains to break down the Tennsv opinion in their motion. Again, the Illinois EPA is not ignoring
or refusing to comply with the Tennsv decision, so it is unnecessary to revisit that opinion other
than to clarify the scope ofthe decision as done here.
The Petitioners have sought to have this straightforward and focused finding by the
Tennsv court to instead stand for a much broader proposition; namely, that the statutory
provisions in question prevented United Disposal from accepting waste generated outside the
municipal boundaries of the Village of Bradley. The Petitioners claim that this prohibition
against the acceptance ofwaste from beyond those municipal boundaries violates the Commerce
Clause ofthe United States Constitution. Petitioners’ motion, p. 9.
This argument is erroneous and not supported by the record. It is true that special
condition 9 in the operating permit does restrict the type of waste that may be accepted at the
transfer station based upon the point of generation. Administrative Record, p. 69.1 However,
that condition is a restatement of the same special condition found in the development permit.
AR, p. 3. The reason the special condition was included in the development permit was because
the applicant, United Disposal, asked that it be included. AR, pp. 10-11, 26. Thus the Illinois.
EPA did not restrict the type of waste that the transfer station could accept. Rather, the permit
‘References to the Administrative Record, including the Supplement to the Administrative Record, will henceforth
be made as, “AR, p.
.“
3
applicants asked that the transfer station be restricted in the type of waste that it could accept,
and the Illinois EPA agreed to include that request in the development permit. When the.
operating permit was issued in 1995, there was no appeal taken by United Disposal asking that
the special condition restricting waste acceptance be withdrawn. The operating permit was
issued in
1995,
or two years after the Tennsv opinion was issued.
Of course, that the permit applicants asked that the transfer station be limited in its
service area begs the question ofwhy an applicant would seek such a restriction. The answer is
that at the time of the permit application, asking for and receiving such a restriction allowed an
applicant to avoid having to undergo the local siting approval process and complying with
setback requirements.
In short, the portrayal by the Petitioners that the Illinois EPA is
prohibiting acceptance of waste is totally misleading, in that the Petitioners asked for the
restriction and did so knowing full well that they would not be required to comply with other
burdensome requirements of the Act.
-
There is also no doubt that the Tennsv court did rule that certain provisions ofthe Act
were unconstitutional, and that the Illinois EPA must in turn comply with the dictates of the
court’s order. To a large extent that compliance has been met by the Illinois EPA’s application
of existing statutory language in the Act, language which reflects the Illinois General Assembly’s
-
modification of the Act to conform to the Tennsv court order. However, it seems that the
Petitioners are arguing that the special condition has a sort of self-actuating voidance
mechanism, whereby the special condition would instantly vanish (both legally and figuratively).
That is not the case though, as the provision (or provisions of that type) was not declared
unconstitutional by the Tennsv court. What was declared improper was the Act’s provisions
allowing certain types of facilities from being able to avoid local siting approval while others had
4
to go through the process. Special condition no. 9 is not unconstitutional, and no language in the
Tennsv opinion would support such a contention.
Rather, the court took issue with the Act’s scheme of allowing certain types offacilities
to avoid having to undergo local siting approval. Since the United Disposal facility never
underwent that procedure, it arguably received the very benefit and preferential treatment that the
court found inappropriate. The Petitioners may respond that the penalty for receiving that
benefit was a limited service area; however, if that were the case, then the Petitioners could have
sought to have the condition removed in 1993 immediately upon the Tennsv decision. They did
not. At the very least, the Petitioners could have asked that the condition be removed in
1995
when the operating permit was issued for the facility. They did not. At no time other than in
2003, or ten years after the Tennsv decision was issued, did the Petitioners ask that the condition
be removed. Further, in the application filed in 2003, the Petitioners did not argue or claim that
the condition ought be removed since it was unconstitutional. The request was simply made- to
remove the condition. AR, p. 129.
-•
The Board has held that a condition imposed in a permit that is not appealed to the Board
may not be appealed in a subsequent permit. Mick’s Garage v. Illinois EPA, PCB 03-126
(December 18, 2003), pp. 6-7; Panhandle Eastern Pipe Line Co. v. Illinois EPA, PCB 98-102
(January 21, 1999), p. 30. The grounds that the Petitioners are relying upon in this appeal are the
very grounds that could have been asserted in 1995 when the Illinois EPA issued the operating
permit that contained special condition no. 9. The failure of the Petitioners to appeal the
condition then prevents them from appealing the condition now.
The Petitioners description of the 2003 permit application, and the impact of special
condition no. 9, is also flawed in its reference to the Tennsv case. The Petitioners argue that
5
special condition no. 9 prevented the movement of waste between subdivisions of the State of
Illinois, and that such a prohibition was declared unconstitutional in Tennsv. Petitioners’
motion, p. 10. This argument is incorrect, in that the condition’s restriction was not the
prohibition that was declared unconstitutional. What was declared unconstitutional was the
Act’s provisions that allowed a facility to avoid local siting approval through a limited service
area, while imposing the local siting approval requirement upon facilities with broader service
areas. Thus the prevention ofthe movement ofwaste was not unconstitutional, but the different
treatment of facilities that accepted waste from inside or outside a unit of local government’s
boundaries was unconstitutional.
The Illinois EPA did not perpetuate the “unconstitutional prohibition” contained in
special condition no. 9 when it denied the permit application. Petitioners’ motion, p. 10.
Instead, the Illinois EPA applied the law as it currently exists to the permit application at hand.
As described in the Respondent’s motion for summary judgment, the permit application sought
approval ofa modification to the development permit, which amounted to a request for approval
ofa new pollution control facility since the facility was not grandfathered out ofthe requirement
ofhaving to obtain local siting approval.
Even more support for the imposition oflocal siting approval is found in the Petitioners’
own arguments. The Petitioners claim that an unconstitutional state enactment causes the state
authorization for such action to be a nullity. Petitioners’ motion, p. 10.
If that is taken as
applicable in the manner espoused by the Petitioners, then the effect of the Tennsv case is that
the Illinois EPA had no authority to issue development or operating permits to United Disposal..
United Disposal, then, would be treated as having no valid permits issued by the Illinois EPA.
There can be little argument that if such is the case, any permit sought now by United Disposal
6
must be treated as an initial permit for development (since no operating permit can be issued
without first obtaining a development permit) after July 1, 1981. Such a permit requires that the
applicant provide proof oflocal siting approval.
The Illinois EPA has already addressed and struck down the notion that special condition
no. 9 was “effectively eliminated” from the Petitioners’ operating permit upon the Tennsv court
decision. Thus special condition no. 9 must be considered on its face. The Petitioners argue that
the condition still fails given the findings by the Tennsv court. Petitioners’ motion, p. 11. But
the arguments advanced by the Petitioners are not persuasive, since the condition simply limits
the service area ofthe facility. There is nothing inherently objectionable about such a limitation,
especially since it was basically a self-imposed condition. For example, it would not be unusual
for a facility that has undergone local siting approval to define its service area within certain
boundaries ofits own choosing. The description ofa limited service area is not unconstitutional,
by the Tennsv court’s decision or by any other analysis. The use of such a limited service area to
allow a facility to escape having to undergo local siting approval is unconstitutional, and that was
the clear and focusôdfinding in Teimsv.
The Petitioners also argue that the language used in special condition no. 9 is
unconstitutionally vague and uncertain as it is written. Petitioners’ motion, pp. 12-14. In
response, the Illinois EPA first notes that the Petitioners have received two permits prior to
applying for the removal of special condition no. 9 (i.e., the development permit and operating
permit), and both prior permits were issued with the language found in special condition no. 9.
At no time prior to 2003 have the Petitioners argued that the language in the condition was•
unconstitutionally vague or uncertain. Since 1994, when the development permit was issued,
there has apparently been no problem with United Disposal interpreting the language in special
7
condition no. 9, and it is unclear what lapse in understanding has happened in the nine years
preceding this new argument that would have caused the Petitioners to not comprehend the
meaning ofthe wording in special condition no. 9.
Further, the Illinois EPA argues that the language employed in special condition no. 9 is
not at all uncertain or vague. The terminology is based either in statutory definitions found in the
Act or Board regulations or is commonly understood in layman’s terms. There is no substantive
merit to the claim that the wording of special condition no. 9 is impermissibly vague, and any
arguments to that end should be disregarded.
Lastly, the Petitioners argue that by denying the subject application, the Illinois EPA has
effectively re-imposed that portion of special condition no. 9 purporting to prohibit the service
area of the transfer station. The Petitioners posit that since the portions of the Act that
unconstitutionally provided the authority for imposing geographical prohibitions on waste
acceptance no longer exist, the Illinois EPA has no authority to act to keep the condition in the
• permit. Petitioners’ motion, p. 14.
This argument also must be set aside. As has been said repeatedly herein, there is no
language in the Tennsv decision that declared unconstitutional the “authority for imposing
geographical prohibitions on waste acceptance.” The Illinois EPA did not impose any
prohibition on waste acceptance; rather, the Illinois EPA approved the defined service area
proposed by United Disposal in its permit application for a development permit. There is
nothing unconstitutional about a facility having a defined service area. The problem of
unconstitutional permitting arose when the Illinois EPA used geographical definitions of service.
area to exempt certain facilities out of local siting approval. Contrast that scenario with the
8
present situation, in which the Illinois EPA sought to impose local siting approval as a condition
precedent to approving the Petitioners’ permit application.
The Petitioners have put forth numerous arguments, all with one goal in mind: To allow
them to avoid ever having to obtain local siting approval for their facility. This is a situation
which falls between two permitting frameworks, one involving statutory language that was found
to be unconstitutional and one of the present state of the Act. United Disposal avoided local
siting approval when it received its development permit by virtue ofits claiming an exemption to
local siting approval pursuant to the Act.
That exemption was later found to be an
unconstitutional tool, and the Illinois General Assembly in turn amended the language to remove
the exemption. The Petitioners particular timeline of permitting overlaps both the permitting
frameworks, and by virtue ofthat happenstance, they now seek a finding by the Board that they
are free from ever having to obtain local siting approval. Basically, the Tennsv court held that
facilities such as United Disposal’s should not be able to avoid local siting approval while other
facilities were required to undergo the process. Now, it is undisputed that facilities such as
United Disposal’s are subject to the requirements of local siting approval. The Board should not
allow this facility to again sneak by the requirements of local siting approval through a purported
statutory “back door.”
III. THE ILLINOIS EPA CORRECTLY INTERPRETED THE PERMIT
APPLICATION AS SEEKING TO MODIFY THE DEVELOPMENT PERMIT
The Petitioners argue that the Illinois EPA’s denial of the subject permit application was
wrong since the denial was based on lack of local siting approval, since there is no requirement
for a facility seeking to modify its operating permit or to remove an unconstitutional restraint to
obtain local siting approval. Petitioners’ motion, p.
15.
9
In making this argument, the Petitioners are overlooking several considerations. As a
practical matter, and for the reasons set forth in the Illinois EPA’s motion for summary
judgment, it is nonsensical to allow a permittee to modify a condition in an operating permit that
also exists in a development permit. If an operating permit has imposed a condition in
conjunction with the imposition ofthe same condition in the development permit, it only follows
that both the development and operating permits must be modified if the condition in question is
modified.
Also, the development permit issued to United Disposal in 1994 included standard
conditions applicable for development permits issued by the Illinois EPA. One ofthose standard
conditions is that there shall be no deviation from the approved plans and specifications unless a
written request for a modification ofthe project, along with plans and specifications as required,
shall have been submitted to the Illinois EPA and a supplemental written permit issued. AR, p.
6. Therefore, it was clearly set forth in the 1994 development permit that any changes to the
approved plans and specifications must be done through a supplemental written permit. The
development permit application sought a defined service area for the transfer station. The
Petitioners were put on notice from 1994 that any changes to the plans approved for the facility,
including the definition of a service area, must be done through an appropriate modification. To
modify the special condition in the operating permit that reiterated the special condition in the
development permit, both the development and operating permits must be modified. Therefore,
the Illinois EPA’s handling of the permit application as one seeking to modify at least the
development (and arguably also the operating) permit was correct.
The Petitioners instead take the position, again, that Tennsv did not require any
modification to either the development or operating permit. Petitioners’ motion, p. 16.
•
This
10
issue has been discussed, with the only reasonable and legally correct conclusion being that the
Tennsv decision did not act to unilaterally eliminate special condition no. 9 from either the
development or operating permit.
The Petitioners also argue that the geographical restriction that the Petitioners sought to
remOve had absolutely no bearing on the physical design, construction or boundaries of the
facility. Petitioners’ motion, p. 16. That argument is weak and not supported by the Act or legal
precedent. In Bi-State Disposal, Inc. v. Illinois EPA, PCB 89-49 (June 8, 1989), p.
5,
the Board
noted its position that the legislature deliberately drafted Section 3.32(b) of the Act (415 ILCS
5/3.32(b))
(now 415 ILCS
5/3.330(b)(2))
in a broad manner so that it would apply to all
expansions of (regional) pollution control facilities. That sentiment was echoed by the appellate
court that affirmed the Board’s decision. The court stated that reinstating a mine cut for disposal
purposes would increase the capacity of a landfill to accept and dispose of waste, and that.
increase—while not specifically defined in the Act—would impact the criteria local
governmental authorities consider in assessing the propriety of establishing a new (regional)
pollution control facility. Bi-State Disposal, Inc. v. Illinois Pollution Control Board, 203 Ill.
App. 3d 1023, 1027, 561 N.E.2d 423, 426 (5th Dist. 1990). The Illinois Supreme Court
previously took that position in M.I.G. Investments, Inc. v. Illinois EPA, 122 Ill.2d 392, 523
N.E.2d 1 (1988). In M.I.G., the supreme court stated that the concepts of “expansion” and
“boundary” should be construed by taking into account changes ofboundaries would have upon
the criteria set forth in Section 39.2(a) ofthe Act (415 ILCS
5/39.2(a)).
The concepts of “expansion” and “boundary” should be liberally construed to meet the.
purposes of the Act. Here, the expansion of the boundaries of the service area of the transfer
station could certainly have an impact on the criteria that units of local government take into
11
consideration when weighing requests for local siting approval. Since the nature of the request
meets both the spirit and legal interpretation of the wording of Section 3.330(b) of the Act, the
Illinois EPA’s conclusion that local siting approval is required was correct.
IV. THE ILLINOIS EPA COMPLIED WITH THE TIME PERIODS FOR REVIEW
The Petitioners argue that the Illinois EPA failed to comply with the time period allowed
for determining that a permit application for an operating permit (or modification to an operating
permit), in that the Illinois EPA’s decision was not issued within 30 days after receipt of the
application. Petitioners’ motion, pp. 17-19.
As has been argued herein, the Illinois EPA properly treated the permit application
submitted by the Petitioners to be one seeking a modification of the development permit.
Pursuant to Section 807.205(f) of the Board’s regulations (35 Ill. Adm. Code 807.205(f)), the
Illinois EPA has 45 days after receipt of an application
-
for a development permit (or
modification to a development permit) by which to issue its finding of completeness. Here, the
Illinois EPA received the permit application on March 31, 2003. AR, p. 129. The final decision
now under appeal was issued on May 15, 2003. AR, p. 143. Thus, the Illinois EPA issued its
final decision on the 45th day following its receipt ofthe permit application, or within the time
allowed by Section 807.205(f).
V. CONCLUSION
For the reasons stated herein, as well as the arguments raised in the Illinois EPA’s motion
for summary judgment, the Illinois EPA respectfully requests that the Board enter an order
affirming the Illinois EPA’s decision dated May 15, 2003.
12
Respectfully submitted,
LLINOIS ENVIRONMENTAL PROTECTION AGENCY,
~Th\
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 23, 2003
This filing submitted on recycled paper.
13
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 23, 2003, I served
true and correct copies of a RESPONSE TO PETITIONERS’ MOTION FOR SUMMARY
JUDGMENT, by placing true and correct copies thereof in properly sealed and addressed
envelopes and by sending said sealed envelopes via U.S. Mail First Class delivery, to the
following named persons:
Dorothy M. Gunn, Clerk
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
1021 North Grand Avenue, East
100 West Randolph Street
P.O. Box 19274
Suite 11-500
Springfield, IL 62794 -9274
Chicago, IL 60601
Jennifer J. Sackett Pohlenz
Querrey& Harrow, Ltd.
175 West Jackson Street
Suite 1600
Chicago, IL 60604
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
e~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
-
