BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED DISPOSAL OF BRADLEY, INC.,
RECEIVED
and MUNICIPAL TRUST
& SAViNGS
CLERK’S OFFICE
BANK, as Trustee Under Trust 0799,
Petitioners,
No.
PCB
03-235
FEB
18
200k
V.
STATE OF ILLINOIS
(Permit
Appeal
-
Land)
pollution ContrOl Board
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
NOTICE
OF FILING
To:
Please see attached Service List
PLEASE TAKE NOTICE that
on February
18,
2004,
we filed with the Illinois
Pollution
Control
Board,
1.)
PETITIONERS
UNITED
DISPOSAL
OF
BRADLEY,
INC.
AND
MUNICIPAL TRUST
&
SAVINGS BANK’S
REPLY IN
SUPPORT
OF THEIR MOTION
FOR
SUMMARY JUDGMENT; 2.) APPEARANCE
OF
JENNIFER MEDENWALD; and
3.) MOTION FOR ORAL ARGUMENT, copies of which are attached hereto and
served upon
you.
Dated: February
18, 2004
Respectfully submitted,
UNITED DISPOSAL OF BRADLEY, INC., and
MUNICIPAL TRUST
& SAVINGS BANK, as
Trustee Under Trust 0799
Jennifer J. Sackett
Pohlenz
Jennifer Medenwald
David E.
Neumeister
-
QUERREY
&
HARROW, LTD.
By:
4
.~
~.
175
W. Jackson Blvd.,
Suite
1600
@‘~e
of~t’heir
attorneys
Chicago, Illinois
60604
Phone: 312-540-7000
PROOF OF SERVICE
I, Ronnie Faith,* a non-attorney, certify
that I served the following documents on the above
referenced persons,
by hand delivery or
by depositing a copy in the U.S.
mail at
175
W.
Jackson,
Chicago, Illinois with proper postage prepaid and addressed to the address shown above, at or prior
to the hour of 5:00 p.m. on
February
18, 2003.
*Under penalties as provided
by law pursuant to Ill.
Rev.
Stat.
Chap.1
1O-~1-1O9
I
certi~’
that the statements
set forth herein are true and correct.
Document Th
896634
Printed on Recycled Paper
SERVICE LIST
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thomspon Center
100 West Randolph
Suite
11-500
Chicago, IL 60601
Via Hand Delivery
9 COPIES
WITH ORIGINAL
John J.Kim
Assistant Counsel
Special Asst. Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, IL
62794-9276
Via
U.S. Mail and Facsimile
Carol
Sudman, Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue, East
P.O. Box
19274
Springfield, IL
62794-9274
Via
U.S. Mail
Joel
J. Sternstein
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
Via
U.S. Mail
RECEIVED
CLERK’S OFFICE
65299-POH
FEB
182004
BEFORE THE ILLINOIS POLLUTION CONTROL BOAROSTATE OF ILLINOIS
l-’ollutlon
Control Board
UNITED DISPOSAL OF BRADLEY, INC.,
and MUNICIPAL TRUST &
SAVINGS BANK,
as Trustee Under Trust 0799,
Petitioners,
No.
PCB
03-235
v.
(Permit Appeal
-
Land)
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
ADDITIONAL APPEARANCE
I hereby file my appearance
in this proceeding on behalf ofPetitioners, United Disposal of
Bradley, Inc. and Municipal Trust & Savings Bank, Trustee Under Trust 0799.
QUERREY & HARROW, LTD.
~.
enmfer Medenwald
Name
Jennifer Medenwald
Attorney for
Petitioners
Address
175 W. Jackson, Suite
1600
City
Chicago, Illinois
60604
Telephone
(312) 540-7000
Document
#:
896728
Printed on Recycled Paper
RECE
WED
CLERK’S OFFICE
Our File No. 65299-POH
FEB
18
2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOAP~j.~~~
OF ILLINOIS
Pollution Control Board
UNITED DISPOSAL OF BRADLEY, INC.,
And
MUNICIPAL TRUST
& SAVINGS BANK,
As Trustee Under Trust 0799,
No. PCB 03-235
Petitioners,
(Permit Appeal
-
Land)
V.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
PETITIONERS UNITED DISPOSAL OF BRADLEY,
INC’S.
AND
MUNICIPAL
TRUST
& SAVINGS BANK’S
REPLY
IN
SUPPORT
OF THEIR MOTION FOR SUMMARY JUDGMENT
NOW
COME
the
Petitioners,
UNITED
DISPOSAL
OF
BRADLEY,
INC.
and
MUNICIPAL TRUST
&
SAVINGS BANK,
as Trustee Under Trust
0799,
by and
through their
attorneys,
Jennifer
J.
Sackett
Pohlenz,
David
E.
Neumeister,
and
Jennifer
L.
Medenwald
of
QUERREY &
HARROW,
LTD.,
and submit
the
following reply in
support of their Motion for
Summary Judgment.
I.
BY
REFUSING
PETITIONER’S
REQUESTED PERMIT
MODIFICATION, THE
IEPA
UNLAWFULLY
APPLIED
THE
ILLINOIS
ENVIRONMENTAL
PROTECTION
ACT
AND
WRONGFULLY
PERPETUATED
AN
UNCONSTITUTIONAL
RESTRICTION
IN BLATANT
DEROGATION OF
THE
TENNS V
HOLDING
The
focus of
the
Illinois
Environmental
Protection
Agency’s
(hereinafter
“IEPA”
or
“Agency”)
response to
Petitioners’
summary judgment motion
is
twofold.
First,
the
“we
asked
for it”
argument,
contending that its denial of the
Petitioners’ requested permit modification was
not in error,
because the Petitioners sought
a permit
under the former “non-regional” provisions
Printedon Recycled Paper
of
the
Act.
Second,
IEPA
argues
waiver:
that
even
if
the
subject
permit
condition
is
unconstitutional,
the
Petitioners
did
not
contest
it
when
it
was
initially
imposed.
These
arguments
are
nothing
more
than
red
herrings,
which
detract
from
the
core
issue:
the
unconstitutionality of that portion of Special
Condition No.
9
which purports
to
geographically
restrict
waste
acceptance
at
the
subject
transfer
station’.
In
making
its
arguments,
IEPA
challenges Petitioners’
application of Tennsv, Inc.
v.
Gade, Nos.
92
503
WLB
& 92
522
WLB,
1993
U.S.
Dist.
LEXIS
10403
(S.D.
Ill.
July
8,
1993),
and,
itself,
incorrectly
articulates
its
holding.
The provisions ofthe Act underlying the inclusion of those portions of Special Condition
No.
9 at issue in this case were unambiguously declared unconstitutional by the District Court in
Termsv.
The Illinois State Legislature then amended the Act (effective notably
after
Petitioners’
original
development
and
operating
permits
were
issued)
to
delete
those
provisions
in
the
Act
that impermissibly distinguished between “regional” and “non-regional” facilities in
the context
of the shipment, conveyance,
unloading or loading of municipal
solid waste.
Special
Condition
No.
9, as the progeny of those stricken provisions, now
—
in contrast to when it was first added to
Petitioners’
operating
permit
back in
1995
—
lacks
adequate
statutory
support
under
the
Act.
IEPA’s
attempt to justify its unconstitutional restriction
on an article ofcommerce,
i.e.,
waste, by
The only portion of Special Condition No.
9
at issue
in this
appeal provides:
9.
No
waste
generated
outside
the
municipal
boundaries
of
the
Village
of
Bradley may
be accepted at this facility.
.
.
.“
(AR 69)
When “Special Condition No. 9”
is referenced
herein, whether or not with the words
“the
relevant portion of’,
it
is only intended to reference
the above cited portion of that
special
condition.
2
Printed on
Recycled Paper
arguing
that Petitioners’ followed the law that was in
effect when initially seeking a permit and,
thus, “self-imposed” the restriction must fail.
This appeal has nothing to do with the Petitioners’
ability to restrict their own business geographically, if they so desire, it has to
do with whether
the
government,
in this
case IEPA, has the ability to
impose such a restriction.
Such restrictions
on
commerce by
government
have been
found repetitively
to
be
clearly unconstitutional.
$~
Fort
Gratiot Landfill
v.
Michigan
Dept.
of Natural Resources,
504
U.S.
353,
112
S.
Ct.
2019
(1992);
Tennsv,
Inc.
v. Gade,
Nos.
92
503
WLB
& 92
522
WLB,
1993
U.S.
Dist. LEXIS
10403
(S.D. Iii.
July
8,
1993);
Northwest Sanitary Landfill,
Inc v.
South
Carolina Dept. of Health and
Envtl.
Control, et
al.,
843
F.
Supp.
100
(D.
S.C.
1992);
Ecological
Sys.,
Inc.
v.
City of Da~on,
2002
Ohio
388,
2002
Ohio
App.
LEXIS
354
(Ohio
Ct.
App.
1992),
app.
denied,
2002
Ohio
2852, 769 N.E.2d 873
(2002).
The
IEPA
—
in
light
of the
Illinois
legislature’s
noted
amendments
to
the Act
and
the
district
court’s
holding
in
the
Tennsv
—
can
no
longer lawfully
uphold,
apply or enforce
that
portion
of
Special
Condition
No.
9
purporting
to
restrict
the
geographical
area
of
waste
acceptance
for
the transfer station
against
the
Petitioners’
business activities.
The IEPA
was
wrong
to
suggest
otherwise
when it
refused
to
allow the
Petitioners’
to
modify their existing
operating
pennit
to
remove
that
portion
of Special
Condition
No.
9
at
issue,
by
finding
the
Petitioners’
permit application to
be
“incomplete.”
That determination should now be
reversed,
the
Petitioners’
motion
for summary judgment
granted,
and
the
Petitioners’
requested
permit
modification approved.
3
Printed on Recycled Paper
A.
The
Tennsv
case
supports
a
finding
that
IEPA
erroneously refused to allow
the
Petitioners’
requested
permit
modification
and
the
Petitioners’
lawful
application
for
their initial permits
under the law
that was
later amended as
unconstitutional
has
no
bearing
on
the
unconstitutionality
of
Special
Condition No. 9
The
Agency’s
attempt
at
justifying
an
unconstitutional
restriction
on
commerce
by
arguing that
the Petitioners’
applied
for their permits
under portions of a
law later
amended
by
the
Illinois
General
Assembly
as
they
were
unconstitutional,
and
thus
“asked
for
it”
is
as
misconstrued
as
IEPA’s
interpretation of the
Tennsv
holding
on
which
it
relies
in
making
its
argument.
Oddly, the
IEPA
accuses
the
Petitioners
of having
distorted
the “exact wording and
holding”
of
the
Tennsv
case.
Specifically,
the
Agency
claims
that
the
Petitioners
have
interpreted that case well beyond
its plain and clear meaning and that the Tennsv does not apply
to
restrictions
on the movement of waste
between subdivisions
of the State.
(Resp. Br., pp.
2-3,
9).
IEPA
is
wrong.
It
is
IEPA
—
and
not
the
Petitioners
—
who
misconstrues
and
refuses
to
acknowledge the clear import of the Tennsv holding.
In Tennsv,
the Court
struck down a statutory scheme that distinguished between facilities
that
accepted
waste
generated
outside
the
boundaries
of any
local
general
purpose
unit
of
government
and
facilities
that
serviced only
the
local
general
purpose unit
of government
in
which they were
situated
as
being
violative of the
Commerce
Clause of the
U.S.
Constitution.
See Tennsv,
1993 U.S.
Dist. LEXIS 10403, at *35~ Specifically, the
Court declared portions of
Sections
39.2,
3.32
and
22.14
of the
Act,
which imposed additional burdens with
respect to the
location of and
the permit
approval process for
facilities that
accepted waste
originating
from
beyond
its
local
general
purpose
unit
of
government,
unconstitutional
as
they
applied
to
a
4
Printed on Recycled Paper
plaintiffs’
business activities.
Id.
at
*6.
In doing so, the
Court in Tennsv relied on and
cited to
Fort
Gratiot Landfill
v.
Michigan Dept.
of Natural Resources,
504
U.S.
353,
112
S.
Ct.
2019
(1992).
Specifically,
as respects subdivisions ofthe
State, the court held that a state or one ofits
political
subdivisions
may
not
avoid the
strictures
of the
Commerce
Clause
by
curtailing the
movement
of articles
of commerce through
subdivisions
of the
State,
rather than through
the
state
itself.
Tennsv,
1993
U.S.
Dist.
LEXIS
10403,
at
*5
(citing
Fort
Gratiot
Landfill
v.
Michigan Dept. ofNatural Resources,
504 U.S. at 361,
112 S. Ct.
at 2024).
By
limiting
the
Petitioners’
facility to
accepting
waste
solely
“generated”
within
the
“municipal boundaries” ofthe Village of Bradley, Special Condition
No.
9 clearly precludes the
movement of waste
through
a particular political
subdivision of the
State
of Illinois
as well as
interstate2.
According to
the
clear
import
of the
Tennsv
holding
(which
the
JEPA
wrongfully
ignores),
such a restriction
is improper and unconstitutional.
Since IEPA does not dispute
any
of
the facts in support of Petitioners’
motion for summary judgment, if the Illinois Pollution Control
Board (Board)
follows
the holding
in
Tennsv,
the Board
should
find that
waste
is
an
article of
commerce
and
a
geographic
restriction
on
the
movement
of that
commerce,
be
it
through
subdivisions of a
state or interstate (as the
instant
condition restricts both),
is
unconstitutional
and
either void (by virtue of the amendments of the State Legislature) or should be
stricken.
The continued
presence of Special
Condition No.
9
in
the Petitioners’
operating
permit
completely
contradicts
the
Tennsv
Court’s
unambiguous
mandate
that
there
can
be
no
curtailment
on the movement of articles of commerce absent a
valid justification that
is
wholly
5
Printed on Recycled Paper
unrelated to
economic protectionism.
See Tennsv,
1993 U.S. Dist. LEXIS
10403,
at *6.
Special
Condition No.
9, in as much as it represents such a curtailment without
valid justification,
cannot
stand.
Further,
in so far as the inclusion of Special
Condition No. 9
in
the Petitioners’
operating
permit was undisputedly predicated upon the
exact portions of Sections ofthe Act that removed
by the Illinois General Assembly due to
the Tennsv decision, it strains credulity to suggest, as the
EPA
does
in
its
response
brief,
that
Special
Condition
No.
9
maintains
some
modicum
of
constitutionality.
If
the
statutory
provisions
underlying
the
restriction
embodied
in
Special
Condition
No.
9
are unconstitutional, then
so
too
is
the
actual
restriction itself.
Likewise, the
Agency’s argument
that,
should
this
premise be
true,
then Petitioners’
entire
permit
should
be
void
lacks legal
authority and is an
entirely ineffective threat in
response to
Petitioners’
motion3,
given
First
of Am.
Trust
Co.
v.
Armstead,
171
Ill.2d
282,
664
N.E.2d
36
(Iii.
1966)
and
its
legacy of decisions in
Illinois.
Thus,
the Petitioners’
requested permit modification
to
remove
Special Condition No.
9
should have been granted and
IEPA’s finding of “incompleteness” and,
therefore,
denial of Petitioners’ operating permit application should be reversed.
B.
There
is
no “waiver” of an unconstitutional restriction
Attempting
to
circumvent
the
clear
import of the
Commerce
Clause
and
constitutional
argument presented
in
Petitioners’
motion,
JEPA
claims
that
Special
Condition
No.
9
should
nonetheless remain
a part
of the
Petitioners’
operating
permit
because the Petitioners
failed
to
United
Disposal
of Bradley,
Inc.
has
at
least
one
customer
and
has
business
opportunities
outside
the
State of
Illinois,
however, the
current
geographic restriction of Special
Condition
No.
9 purports to restrict any waste from
those customers from being accepted at the
Petitioners’ transfer station.
Likewise,
IEPA’s
baseless
contention
that
Petitioners
sought permitting
under a
non-regional
status
to
“avoid”
siting
is not relevant
and Petitioners’
motivation in its
initial
permits
is not a
“fact” before the Board. This is nothing
more than
a back
door to an
argument that
contradicts the
Armstead
line
of cases, essentially
arguing that
a party
6
Printed on Recycled Paper
challenge the inclusion of that condition
at the
time
their operating permit
was
initially issued.
(Resp. Br.,
pp.
4-5).
Specifically,
the
IEPA claims
that
the
Petitioners
have effectively
waived
the right to
challenge the constitutionality of Special
Condition No.
9
by not appealing it at any
time prior to
when they sought to
have their operating permit
modified via their March 27, 2003
application.
Again,
the
1EPA
is
wrong.
First
and
foremost,
the IEPA’s
suggestion
that
its
inclusion
of Special
Condition
No.
9
was
ripe for appeal
as
of the
1995
issuance
date of the
Petitioners’
operating
permit is
disingenuous.
While
the Tennsv
case had indeed already
been
decided
at
the
time
the
Petitioners’
operating
permit
was
issued,
notably,
the
Illinois
State
Legislature had not yet amended the Act
to
delete those provisions that the Tennsv
Court found
to
be
unconstitutional.
Accordingly,
the
Petitioners
committed
no
wrong in
not
immediately
challenging Special
Condition No.
9 upon the
subject operating permit’s issuance.
The IEPA is
mistaken to
suggest otherwise.
Further, the timeliness ofthe Petitioners’ challenge to
the imposition of the subject permit
condition
is really completely
irrelevant, as constitutional
challenges, as a matter oflaw,
cannot
be waived
and may
be raised at any time.
See.
e.g., People v.
Christy,
139
Ill.
2d
172,
176,
564
N.E.2d
770,
772
(III.
1990)
(“As
a
general
rule, a
constitutional
challenge
to
a
statute
can
be
raised at any time.”).
Finally,
in
support
of its
argument
to
the
contrary,
the
Illinois
EPA
cites
to
Mick’s
Garage
v.
Ill.
EPA,
PCB
No.
03-126, 2003
Ill.
ENY LEXIS
751,
at
*15
(Dec.
18,
2003),
and
Panhandle E.
Pipe Line Co.
v.
Ill. EPA,
PCB No.
98-102,
1999 Ill.
ENV LEXIS
52,
at
*30 (Jan.
who
follows
the
law in place
at the
time
of permitting should later be penalized
and
a vested right removed, when
the
General Assembly changes the
law.
7
Printed on Recycled Paper
21,
1999).
(Resp. Br.,
p.
5).
Both of these cases stand for the proposition that the Board will not
review in
a subsequent permit
a condition that was
imposed without challenge in
a predecessor
permit.
Notably, however,
neither
of these
cases involved a situation where the imposed permit
condition
implicated
constitutional
concerns.
Those
cases
are,
therefore,
factually
distinguishable from the instant matter and are not controlling here.
Accordingly, the Petitioners
did
not,
as
the
Agency
contends,
waive
the
issue
regarding
the
constitutionality
of
Special
Condition No.
9 by not raising it in an appeal oftheir initial
operating permit.
C.
The
IEPA
does
nothing
to
meaningfully
contradict
any
of the
Petitioners’
arguments
that independent of the
Tennsv
holding, Special
Condition No.
9
is
nonetheless
unconstitutional
on
its
face
as
it
is
a
geographic
restriction
that discriminates
based
upon
the
origin
of the municipal
solid
waste
and
impermissiblyvague
In their summary judgment motion,the Petitioners
argued that
even if Special
Condition
No.
9 could
exist independent of the statutory
provisions of the
Act
that
were
removed
by
the
Illinois
General Assembly
as unconstitutional
(based
on the
Tennsv
case), that
condition would
still
fail
to
pass
constitutional
muster
because
it
is
a
geographic
restriction
that
discriminates
solely on the basis of the origin ofwaste.
The Petitioners cited both Northwest Sanitary Landfill,
Inc v.
South
Carolina Dept. of Health and Envtl.
Control,
843
F.
Supp.
100 (D.
S.C.
1992), and
Ecological
Sys.,
Inc.
v.
City of Dayton,
2002
Ohio
388,
2002
Ohio App.
LEXIS
354
(Ohio
Ct.
App.
1992),
as
examples
where
provisions
similar
in
effect
to
Special
Condition
No.
9
were
deemed
to be
unconstitutional
for that
reason.
Notably,
in its
brief,
IEPA fails to respond at
all
to:
(a)
the
Petitioners’
discussion
ofthe
aforementioned
cases;
or
(b) the
Petitioners’
submission.
that
Special
Condition No.
9
is,
notwithstanding
the
Tennsv
holding,
a geographical restriction
that
impermissibly discriminates
on the
basis
of where
the
municipal
solid
waste
is
generated.
8
Printed on Recycled Paper
Accordingly, the Petitioners will rest upon the valid arguments already presented in their opening
summary judgment brief.
In light ofthose arguments, the requested permit modification should
have been allowed and the IEPA’s decision to the contrary should now be overruled.
It bears brief mention also that the IEPA fails to articulate any meaningful response to the
Petitioners’
contentions
that
Special
Condition No.
9
is unconstitutionally vague
and,
therefore,
void.
In
fact,
the
IEPA’s
only
response
to
this
argument
is
that
the
Petitioners’
“void
for
vagueness” challenge to
Special Condition No. 9
is untimely.
(Resp. Br.,
pp.
7-8).
Again, as has
already been mentioned,
constitutional
challenges
can,
as a matter of law,
generally be asserted
at
any
time.
Thus,
the IEPA’s
criticism
of the timing
of the
Petitioners’
void
for
vagueness
challenge alone
is
insufficient to
defeat that argument.
The
Board should,
in consideration ofthe
vague and uncertain terms
in which Special
Condition No.
9
is written, find that that restriction is
unconstitutionally vague
and
that
IEPA
erroneously
denied Petitioners’
request
to
modify their
operating permit to delete the subject language.
II.
THE
IEPA
INCORRECTLY INTERPRETED THE
PERMIT
APPLICATION AS
A
REQUEST
TO
MODIFY
A
DEVELOPMENT
PERMIT
THAT
REQUIRED
SECTION 39.2 SITING APPROVAL
The
IEPA
argues
it
correctly
viewed
the
Petitioners’
subject
requested
permit
modification
as one
that
required siting approval because the
sought
after modification
would
involve
altering the Petitioners’
operating
and
development
permits,
as Special
Condition No.
9
appears
in
both of them.
Additionally,
the IEPA
claims
that the subject transfer station’s mere
acceptance of waste
“generated”
outside the
“municipal
boundaries” of the
Village
of Bradley
would
affect
the
physical
design,
construction
and/or
boundaries
of the
facility such that
the
9
Printed on Recycled Paper
facility’s operating
permit
modification request
should
be considered a request for “expansion”
under Section 3.330(b)(2) ofthe Act.
First,
given the
constitutional
infirmity of the
subject permit
condition,
it
is
irrelevant
whether the
permit
modification
request
was
for
deletion
of the
subject
condition
from
the
development or operating
permits.
This
argument
is
fully
addressed
in
both
the
Petitioners’
Motion for Summary Judgment, its
Response to IEPA’s Motion for Summary Judgment, and this
brief
and, thus, is referenced and incorporated, rather than repeated, herein.
Second, even if,
in arguendo,
Petitioners’
sought
a development permit modification, site
location approval pursuant to
Section
39.2
is
not
required under the clear
language of Sections
39.
3.330(b)(1) and
3.330(b)(2).
The
definitions
of
a
“new
pollution
control
facility”
and
a
“pollution control facility”
are found in
Section 3.330 ofthe Act.
Pursuant
to
Section 3.330(b),
a
“pollution control facility”
is, among other things, a waste transfer station.
Pursuant
to
Section
3.330(b)(1),
a
waste
transfer
station
is
a
“new
pollution
control
facility”
if
it
was
“initially”
permitted
for
development
after
July
1,
1981.
The
Agency
admits
in
its
own
Motion
for
Summary Judgment that
“initially” means, permitted for the
first time.
(IEPA
Motion
pp.
10-
11).
The
Agency
also
admits
that
the
Petitioners’
waste
transfer
station
already
had
a
development (and operating) permit when it submitted the subject operating permit modification.
(AR
1-7,
67-73).
Specifically,
the
Petitioners’
development permit,
Permit
No.
1994-306-DE,
states
that
it “approves the development of a municipal
solid
waste
transfer
station
pursuant to
Sections 21(d) and 3 9(a) of the Illinois Environmental Protection Act.
.
.“
(AR
1).
Thus,
even if
the subject permit
application were
for modification of a development permit,
since it
is
not an
10
Printed on Recycled Paper
“initial permit,” proofof site location
approval under
Section
39.2 of the Act is
not required by
Sections 39(a) and 3.330(b)(1) ofthe Act.
However,
in
its
Response brief,
unlike
its
Motion
for
Summary Judgment, the Agency
relies primarily
on
its
“expansion”
argument,
i.e.,
that
Section 3.330(b)(2) requires
site location
approval.
The
Petitioners’
response to
this
argthment
is
addressed
in
detail
in
its
Response to
IEPA’s
Motion
for
Summary
Judgment
at
pages
13-17.
Not
only
is
the
Agency’s
argument
contrary to precedent, but
it is also contrary to prior Agency actions (the example being shown in
the
Petitioners’
Response brief in
which
the
Agency
specifically
allowed nearly a
doubling of
capacity
of
a
transfer
station,
where
that
capacity
was
specifically
limited
by
the facility ‘s
permits,
without
requiring
site
location
approval,
see,
Exhibit
A
to
Petitioners’
Response
to
IEPA’s
Motion for
Summary Judgment).
Further,
the argument is
contrary to
the
logic
behind
both Section 39.2 and facility permits, as the requested operating permit modification in this
case
has
nothing
to
do
with a change of the permitted facility’s operation,
shape,
size or character, it
only
concerns from what off-site location waste can originate before being brought to the facility.
An
“expansion”
under
Section
3.330(b)(2)
has
been
found in
cases
wherein both
the
capacity and the physical boundary or “footprint” ofa facility changes.
The Agency admits in its
own Motion for Summary Judgment
that
Petitioners
sought
absolutely
no
physical
change to
their
facility. (IEPA Motion
p.
15).
Furthermore, capacity
is
not
at issue
in this
case;
is
not
a
condition of the
facility’s
permits;
was not
a condition of local
zoning approval for the facility
when it
was
initially
developed;
and
there
is
no
evidence
that
by
merely changing the
off-site
geographical location from which waste can be accepted at the facility that there would be either
an increase
or decrease in capacity.
11
Printed on Recycled Paper
Further,
the
cases
on
which
the
Agency
relies
were
previously
distinguished
by
Petitioners
and
contrary
Agency
precedent
noted
(the
permits
attached
as
Exhibit
A
to
the
Petitioners’
Response)
in
the
Petitioners’
Response
to
the
IEPA’s
Motion
for
Summary
Judgment (pages
13-17), which discussion
is
referenced
and
incorporated herein.
The
common
ground
in
all
cases concerning
“expansion”
under Section
3.33 0(b)(2) of the
Act is
an
effect on
“land use”
and
providing
the
local
host
government
with
the
power
to
review
and
approve
proposed facility expansions that will effect land use.
Since the proposed deletion of that portion
of Petitioners’
operating permit Special
Condition No.
9 purporting
to geographically restrict
the
origin of waste
is
an
off-site change
that has
no
effect
on
land use of the facility, even
from
a
logical perspective, Section 3.330(b)(2) is inapplicable.
Finally, IEPA’s attempt
to squeeze the subject permit
modification application into either
Sections 3.330(b)(1) or 3.330(b)(2) ofthe Act
runs afoul ofthe
legal precedent protecting vested
rights
from a
change
in
the
law.
See
First of Am.
Trust
Co.
v.
Armstead,
171
Ill.2d
282,
664
N.E.2d
36
(Ill.
1966);
Chemrex Inc.
v.
Pollution
Control
Bd.,
257
Ill.
App.
3d
274,
628 N.E.2d
963
(Ill.
App.
Ct.
1994);
United States of America v. Illinois
Pollution
Control Bd., et al.,
17
F.
Supp.
2d 800 (N.D.
Ill.
1998).
To
say that the mere request
to change the off-site
location where
waste
accepted at the facility can
be
“generated”
or originate, a request that
is supported
by the
local
host
government
as
well
as
surrounding municipalities
(AR
133-135;
SAR
140-142),
is
either
an
“initial”
permit
or an
“expansion”
under
Sections 3.330(b)(1)
or (2),
respectively,
is
nothing more than to
attempt a retroactive application of the law that ignores Petitioners’ vested
right in its permits.
Both arguments are inappropriate constructions ofthe law.
12
Printed on Recycled Paper
Accordingly,
the Agency’s
arguments
must
fail
and
Petitioners’
Motion
for
Summary
Judgment should
be granted.
III.
THE
ILLINOIS
EPA
CLEARLY
FAILED
TO
ABIDE
BY
THE
APPLICABLE
TIME
PERIODS
FOR
REVIEWING
THE
PETITIONERS’
REQUESTED
PERMIT MODIFICATION
IEPA’s
argument
that
it
complied
with
the
applicable
time
periods
for
reviewing the
Petitioners’
requested permit modification
is
contrary
to
all evidence
in the record.
Petitioners’
requested permit
modification
clearly
states
that
it is
a
request to
modify
its
operating
permit;
IEPA’s written response, likewise, clearly
states that it is a notice ofincompleteness for a request
to
modify
an
operating
permit;
and,
even,
IEPA’s
own
permit
log
(AR
100)
states
that
the
timeframe
for
review
is
the
30-day
timeframe
required
for
an
operating
permit
application.
None
of these
facts are contested
by
the
Agency.
EPA’s
failure
to
comply
with
the
30-day
timing
requirement
of
35
IAC
807.205
is,
notwithstanding
the
Agency’s
suggestions
to
the
contrary, another, procedural
reason, why the Board
should find that the
Petitioners’
application
was
complete
and
should
have been granted
by
IEPA.
Thus,
all
facts
in
the
record,
none
of
which
are
contested,
point
to
one
conclusion:
that
the subject
permit
application
was
one
to
modify
an
operating
permit;
that
IEPA
treated
it
as such;
and that
IEPA
mistakenly
issued
its
notice of incompleteness late.
There
is no
other possible
conclusion,
as IEPA has no statutory,
inherent or other power
to
transform
Petitioners’
application
into
something
it
is
not,
and
the
Agency’s
own record
is
clear
that
up
until the
time
of these motions
and the tardiness
issue
being raised, it treated the
requested
permit
modification
as
one
related
solely
to
the
Petitioners’
operating
permit.
Accordingly,
in
light of the IEPA’s
clear
failure
to
issue
its
denial
of the
Petitioners’
subject
13
Printedon Recycled Paper
application
within
the
said
30-day
deadline,
the
Board
should
construe
the
Petitioners’
application as
complete pursuant
to
35
IAC
807.205,
reverse
IEPA’s
decision,
and
grant
the
Petitioners’ Motion for Summary Judgment.
WHEREFORE,
the Petitioners,
United Disposal
of Bradley, Inc.
and
Municipal
Trust &
Savings
Bank
as Trustee
Under Trust
0799,
respectfully request the Board
enter an
order:
(a)
finding
that the
IEPA’s
denial
of the application for permit
modification
was incorrect because
the modification
requested only the striking ofotherwise unconstitutional language
from
Special.
Condition
No.
9
and
reversing
that denial,
and/or alternatively,
striking
the subject portion of
Special
Condition
No.
9
as
being
an
unconstitutional
restriction
in violation of the Commerce
Clause
and/or
vague
and
uncertain
such
as to
violate
the
Petitioners’
due
process
rights;
(b)
alternatively,
finding
that
the
Petitioners’
application
did
not
require
a
development permit
application
or
siting
approval
pursuant
to
Section
39.2
of the
Act,
due
to
the
fact
that
no
modification of its
development permit was required;
any denial of the application based on the
lack
of a
development
permit
and
site
location approval
is
moot,
as
the
subject condition
is
unconstitutional,
or,
alternatively,
no
change
in
the
development
permit
was
required;
or,
alternatively, remanding this matter to
the IEPA for Petitioners
to
file a development permit; and
no site location
approval is necessary pursuant to Section
39(c);
(c) alternatively, finding that the
Petitioners’
application is
deemed
to
be
complete
as a matter of law based on IEPA’s
notice of
incompleteness sent more
than
30 days
after receipt of the application, and
that
the application
and
subject permit
is
therefore
deemed granted,
or alternatively, the application
is
deemed filed
and
complete and
should
be
remanded to
IEPA for technical
review, if any;
and
(d), providing
such other and further relief as the Illinois
Pollution Control Board deems appropriate.
14
Printed on Recycled Paper
Dated: February
18, 2004
Respectfully submitted,
UNITED DISPOSAL OF BRADLEY, INC. and
MUNICIPAL TRUST
& SAVINGS BANK, AS
TRUSTEE UNDER TRUST 0799
By:
~
~—.
t~
Or~é
oftheir attorneys
Jennifer J.
Sackett Pohlenz
David E. Neumeister
Jennifer L. Medenwald
QUERREY
&
HARROW, LTD.
175
W.
Jackson Blvd., Suite
1600
Chicago, Illinois
60604
Phone:
(312) 540-7000
Fax: (312) 540-0578
15
Printed on Recycled Paper
RECE~
D
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR2
ER~cS
OFFICE
UNITED DISPOSAL OF BRADLEY,
INC.,
FEB
182004
And MUNICIPAL TRUST & SAVINGS BANK,
STATE OF ILIJNOIS
As
Trustee Under Trust 0799,
No.
PCB
03-235
~
Control
Board
Petitioners,
(Permit Appeal
-
Land)
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
PETITIONERS UNITED DISPOSAL OF BRADLEY, INC’S.
AND
MUNICIPAL TRUST & SAVINGS BANK’S
MOTION FOR ORAL ARGUMENT
NOW
COME
the
Petitioners,
UNITED
DISPOSAL
OF
BRADLEY,
INC.
and
MUNICIPAL
TRUST
&
SAVINGS BANK, as Trustee Under Trust 0799,
by and
through their
attorneys,
Jennifer
J.
Sackett
Pohlenz,
David
E.
Neumeister
and
Jennifer
L.
Medenwald
of
QUERREY
&
HARROW,
LTD.,
pursuant
to
Section
101.700 of the
Illinois
Pollution
Control
Board Rules,
and move the Illinois Pollution Control
Board (“the Board”)
to grant oral argument
on
Petitioners’
Motion
for
Summary
Judgment
and
Respondent’s
Motion
for
Summary
Judgment in the above-captioned matter.
In support ofthis motion, the Petitioners state:
1.
Both
Petitioners
and
the
Respondent
in
the
above-caption
matter
have
filed
Motions
for
Summary
Judgment
before
the
Board
regarding
the
Respondent’s
denial
of
Petitioners’
application
for a permit to modify an existing operating permit.
2.
The
issues presented
in
both
Petitioners’
and
Respondent’s
summary judgment
motions are
unique
and implicate constitutional
concerns.
Oral argument will give the Board an
opportunity
to
ask
questions
of counsel
for
the respective
parties
about these
unique
and/or
constitutional
issues.
Printed on Recycled Paper
WHEREFORE, the
Petitioners,
United Disposal of Bradley, Inc.
and
Municipal Trust
&
Savings
Bank as Trustee Under Trust 0799,
respectfully request, pursuant to
Section
101.700 of
the Illinois
Pollution
Control
Board
Rules,
that
the
Illinois
Pollution
Control Board
grant
oral
argument on Petitioners’
Motion for Summary Judgment and Respondent’s Motion for Summary
Judgment in the above-captioned matter.
Dated: February
18, 2004
Respectfully submitted,
UNITED DISPOSAL OF BRADLEY, INC. and
MUNICIPAL TRUST
& SAVINGS BANK, AS
TRUSTEE UNDER TRUST 0799
By:
~
/-
~/
Once ofTheir Attorneys
Jennifer J. Sackett Pohlenz
David E. Neumeister
Jennifer L.
Medenwald
QUERREY & HARROW,
LTD.
175 W. Jackson Blvd., Suite
1600
Chicago, Illinois
60604
Phone:
(312) 540-7000
Fax: (312) 540-0578
Document
#:
896757
Printed on Recycled Paper
