RECE~VED

CLERK’S OFFICE

BEFORE THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

FEB

23

2004

UNITED DISPOSAL OF BRADLEY, INC.,)

AndMUNICIPAL TRUST

& SAVINGS

)

BANK as trustee under Trust 0799,

)

Petitioner,

)

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

NOTICE

PCB No.

03-235

(Permit Appeal)

STATE OF ILUNOIS

Pollution Control Board

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Jennifer

J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Street

Suite

1600

Chicago,

IL 60604

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box

19274

Springfield, IL

62794-9274

PLEASE TAKE

NOTICE

that I

have

today filed with

the

office of the

Clerk

of the Pollution

Control

Board

a

REPLY

TO

PETITIONERS’

RESPONSE

TO

RESPONDENT’S

MOTION

FOR

SUMMARYJUDGMENT,

copies of which are herewith served upon you.

Respectfully submitted,

Johr(J. Kim

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: February 20, 2004

AGENCY,

---

RECE~VED

CLERK’S OFFICE

BEFORE THE. POLLUTION CONTROL BOARD

OF THE

STATE OF ILLINOIS

FEB

2

STATE OF

ILLINOIS

UNITED DISPOSAL OF BRADLEY, INC.,)

Pollution Control Board

And MUNICIPAL TRUST & SAVINGS

)

BANK as trustee under Trust 0799,

)

Petitioner,

)

PCB No.

03-235

v.

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

REPLY TO PETITIONERS’

RESPONSE

TO

RESPONDENT’S 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

Iii.

Adm.

Code

101.500(e),

hereby

respectfully

replies

to

the

Response to the Illinois EPA’s Motion for Summary Judgment (“Petitioners’ response”) filed by

the

Petitioners,

United

Disposal

of Bradley,

Inc.

and

Municipal

Trust

&

Savings

Bank,

as

Trustee

Under

Trust

0799

(“United

Disposal,”

collectively).

In

reply

to

the

Petitioners’

response, the Illinois EPA states as follows:

I.

INTRODUCTION

The Petitioners’ response identifies certain arguments and positions that are raised in the

Illinois

EPA’s

motion

for

summary judgment

(“Illinois

EPA’s

motion”)

that

are

supposedly

infirm.

Specifically,

the Petitioners

argue that

the Illinois

EPA ignores

the importance of the

relevant provisions of the Illinois

Environmental Protection Act

(“Act”) (415 ILCS

5/1,

et ~çq.)

that were found to have been unconstitutional.

Also, the Petitioners argue that the Illinois EPA’s

position that the application

submitted by the Petitioners

also

in effect sought a modification of

the development permit

was unsupported

by

any

law or policy.

Finally,

the Petitioners

argue

that the Illinois EPA’s contention that the requested permit modification may be an expansion as

addressed

in

Section

3.330(b)(2) of the Act

(415

ILCS

5/3.330(b)(2))

is

not

supported by

any

1

---

case law, and

also directly conflicts with past Illinois

EPA actions.

Petitioners’

response, pp. 2-

3.

However, the Illinois

EPA strongly argues that the Board

should keep its

focus on

what

the real issues

and

underlying facts

are in this

matter.

The Petitioners,

by

virtue of the permit

application they prepared and

submitted,

took

advantage of the then-existing law

that

allowed

them to receive a development permit for a transfer station without having to undergo local siting

approval.

The restriction that

allowed for such issuance was that the service area ofthe transfer

station had to be limited, and that was exactlywhat the Petitioners proposed in their application.

Later,

in

January

1995,

after the

law regarding the

“loophole” for local

siting approval

was

amended

(in

December

1994),

the Petitioners

received

an

operating

permit

but

with

the

same restricted service area special condition.

That permit,

and specifically that

condition, was

not

appealed.

Then, in

March 2003,

over

eight years after the operating permit

was

issued,

the

Petitioners asked the Illinois EPA to strike the permit condition in question.

The Petitioners have

made it abundantly clear that they do not

feel they are required to undergo

local siting approval

to

facilitate this

change in

their permit

status.

As

such, the

Petitioners

would

like

to

be the

beneficiaries of the following

scenario:

To

receive a development permit

that would normally

require local

siting approval but

in

this

case did

not

require

local siting approval,

and

later

to

amend the operating permit (based on the development permit) without again having to

undergo

local siting approval.

In short,

the Petitioners

seek to

maintain their status

as being a permitted

facility without ever having to

undergo

local

siting approval, despite their request to

strike the

very condition in their permit

that

allowed them to

escape the local

siting

approval

in

the first

place.

For the reasons that will be explained below, the Illinois EPA’s

decision comported with

the law and facts as presented, and the Board should affirm the Illinois EPA’s decision.

II.

THE LANGUAGE IN SPECIAL CONDITION NO.9

IS NOT UNCONSTITUTIONAL

In the Facts section ofthe Petitioners’

response, a theme found throughout the Petitioners

arguments is continued.

Namely, the Petitioners

claim that

they seek only to remove what they

2

---

characterize

as

an

“unconstitutional

condition”

from

their

operating

permit.

Petitioners’

response,

p.

3.

This portrayal of special

condition no.

91

as being unconstitutional

is erroneous

and

misleading.

There

is

no

support

in

any

case

law

or

legal

precedent

that

provides

a

geographical restriction on the service area ofa transfer station that was requested by the transfer

station itself is unconstitutional.

The case of

Tennsv,

Inc. v. Gade, Nos.

92-503, 93-522

(S.D. Ill.

1993), 24 ELR 20019, stood for the proposition that a statutory permitting system whereby some

facilities could

avoid local siting approval and others could not was unconstitutional.2

There

is nothing unconstitutional about special condition no.

9; rather, what was declared

unconstitutional by the Tennsv court was the ability of an applicant

to use that type ofcondition

to avoid having to undergo the local siting approval process.

In this case, that

is exactly what the

Petitioners

did—by

virtue

of

voluntarily

asking

that

such

a

restriction

be

included

in

their

development permit, the Petitioners avoided having to seek and obtain local siting approval.

But

if an

applicant submitted

a development permit

application

today to

develop a new landfill or

transfer

station,

and

asked that the

service area of that

facility be restricted, there

is

no

reason

why the Illinois

EPA could or would deny that

request on the basis that it would violate the Act

or underlying regulations.

Despite the

best

efforts by

the Petitioners,

the

fact remains that

the

Illinois EPA is

all too familiar with the holding

and

impact of the Tennsv decision, and the final

decision now under appeal before the Board comports with the Act and the Tennsv case.

‘The Illinois

EPA agrees with the statement made by the Petitioners that

only a portion of special condition no.

9 is

the

subject

of the request for a permit modification.

The portion in question provides, “No waste generated outside

the

municipal boundaries of the

Village of Bradley may be accepted at

this facility.”

The remainder of the

special

condition

would stay intact.

2

The Petitioners claim that

the Illinois EPA is misstating the

holding of the

court

in Tennsv.

To

the

contrary, the

Illinois EPA notes

that

the

court stated,

“the

sections in question

Sections

39.2,

2.32

and 22.14(a) of the

Act

violate the

Commerce Clause

because they place

more stringent requirements

on facilities which accept waste from

areas outside the

boundaries of a local general purpose unit of government (which includes waste from outside the

State of Illinois) than on those

facilities which

do

not accept such waste,

and

this discriminationhas not been shown

to be demonstrably justified by a valid factor unrelated to economic protectionism.”

Tennsv, Inc.

v. Gade, Nos. 92-

503

WLB, 92-522

WLB

(S.D.

III.

1993), 1993

WL 523386.

This statement by

the

court is exactly what the

Illinois

EPAhas represented.

The Petitioners only raise half the

finding

ofthe Tennsv court when they

claim that the

c’ourt

found that geographical distinctions

are

unconstitutional;

the Illinois EPA’s

statements

regarding the court’s holding

are complete and consistent with the court’s opinions.

3

---

There is simply nothing illegal or noncompliant about a facility that chooses to define its

service area in

a narrow fashion.

Of course, the applicant could no

longer use such a restriction

as

a

means

to

avoid having

to

obtain

local

siting

approval.

Here,

despite the

fact

that

the

condition in

question is

not unconstitutional, the Petitioners continue to make that claim

so that

Ihey may frame a constftutional

argument around their appeal.

That argument

must fail, as it is

without

any

support in fact or law.

The Petitioners argue that the language in the permit

that restricts the movement ofwaste

is

an

unconstitutional

restriction

on

commerce.

They

claim that

the

Illinois

EPA’s

denial

to

allow the

removal

of the

condition’s

language

without

any

consequences

is

without basis

in

existing law.

Petitioners’

response,

p.

4.

To

the contrary, the Petitioners’

argument is

without

basis in

law,

and

is

contrary to the language of the

Act.

In section 39.2(a)(i) of the Act

(415

ILCS 5/39.2(a)(i)), one of the required criteria necessary for approval of local siting is set

forth.

That criteria

states that

the facility must

be

necessary to

accommodate

the

waste

needs

of the

area it is intended to serve.

That language clearly provides that as

part

of local siting approval, a

siting applicant must propose, j~~r

alia, the service area for the facility.

Thus,

a siting applicant

must define, by whatever bounds it chooses, the service area for the facility.

The

fact

that

Section

39.2(a)(i)

of the Act

contemplates

that

a

facility

has

a

defined

service area is

consistent with the Illinois EPA’s

position that it

is not contrary to the Act that a

transfer station may have a defined service area.

In fact, Section 39.2(a)(i) ofthe Act effectively

requires

that

a siting

applicant

set

forth

exactly what

service

area

is

proposed for the

subject

facility.

Therefore,

the

Petitioners’

claim

that

the

service

area

restriction

found

in

special

condition

no.

9

is

itself unconstitutional

is

contrary to

the

Act.

Service

area

restriction

or

definition

is

a

component

of the

Act

and

is

not

unconstitutional;

relying

on

service

area

restriction to

avoid having to undergo local siting approval is unconstitutional.

The question presented here

is

not

whether the

language

in

special

condition

no.

9

is

unconstitutional; clearly, it is not.

The question raised here is whether removal ofthat language

causes the Petitioners’

facility to be placed

into a position ofhaving

to

comply with local siting

4

---

approval requirements.

As

the Illinois

EPA has argued, changing the language in the operating

permit

cannot be

done

without

changing the language

in

the development

permit.

Issuing

an

airiended development permit

would, in this situation,

require the facility to undergo local

siting

approval since it would be issuing a development permit after 1981 to a pollution control facility.

The Board should resist the Petitioners’

“siren song” ofinvoking a constitutional element

tc this

matter.

There is

no

question

about constitutionality that

need be

addressed,

since

the

Illinois EPA has done nothing that would call such analysis into consideration.

All parties are in

agreement that the pre-Tennsv statutory permitting scheme was declared unconstitutional, and as

such neither an

applicant nor the Illinois EPA can avail themselves of the law as it then existed.

The law

as it now exists is what must be applied,

and that is

exactly the law

that was applied by

the

Illinois EPA.

Special

condition no.

9

is

not in

and of itself unconstitutional,

and

requiring

local

siting approval

prior to

removing the

relevant language

of that

special

condition

is

not

unconstitutional.

Rather,

the

final

decision

issued

by

the

Illinois

EPA

is

a

straightforward

application ofthe Act in its current form to

the facts presented by the Petitioners.

The Petitioners

also

argue that

the Illinois

EPA, through

a “ministerial” matter,

should

have removed the permit condition.

Petitioners’ response, p.

7.

Such a position is unfortunately

without any

basis

in

the Act,

as

the

Illinois

EPA

has no

authority

to

make such a

unilateral

decision.

And, as

has been argued,

there has never been

a need for the

Illinois

EPA to

even

contemplate such a move since there is nothing about the language in special condition no.

9 that

is itself unconstitutional.

Equally without basis

is

the Petitioners’

claim

that

the

Illinois

EPA

is

now “suddenly”

finding

that

it

is

necessary

for the Petitioners

to

obtain

site location approval

to

accept waste

generated outside the boundaries of the Village ofBradley.

Petitioners’

response,

p.

8.

As has

been noted in previous recitations of the facts, this is the first time since the operating permit was

issued

in

1995

that

the

Petitioners

have

sought

a

change to

the operating

permit

that

would

necessitate

a

change to

the

development permit.

Thus,

it

is

not

that

the

Illinois

EPA

is

nOw

suddenly finding this

requirement necessary, but rather that

after over eight years

from the date

5

---

o~the

issuance

of the

operating

permit,

only

now

are

the

Petitioners

seeking

to

amend

the

condition in question.

The timing here is the direct result of the Petitioners’

actions, not those of

the

Illinois EPA.

III.

THE ILLINOIS EPA

CORRECTLY DENIED THE PERMIT

APPLICATION

The Petitioners argue several times that the Illinois EPA improperly denied the operating

permit

application

by

“transforming”

the

application

to

that

of one

seeking

to

modify the

development permit

application.

However,

a plain reading of the final decision (AR,

pp.

143-

144)

makes clear that

such was not the

case.

The Illinois

EPA’s final

decision acknowledged

that the request as presented by the Petitioners was one to

the operating permit.

However, the

Illinois EPA’s review ofthat application had to take into account the relief being requested, and

to

do

so required that

the nature of the permits that

would

be

affected must

also

be taken into

account.

The

final decision stated that

the requested modification to

the operating

permit was

denied based

on the

fact that local

siting approval was not provided.

The

final decision stat~s

that the application for a supplemental permit to revise the operating permit

is not the appropriate

method

to

remove the

permit

condition

in

question, since there must

also

be

a corresponding

change to the developmentpermit.

AR, pp.

143-144.

In

short,

the

Illinois

EPA

could not

approve

the

modification

to

the

operating

permit

since

to

do

so

would

also

require

the

modification

of the

development

permit,

and

that

modification would

in turn require proof oflocal

siting approval.

Since the application therefore

was effectively

and

legally asking for both a change in the operating permit and the development

permit, the Illinois

EPA had to

consider all

aspects of the application in that light.

To do

so also

meant that the time line

applicable for review of development permit

applications was properly

utilized.

The Illinois EPA did not improperly transform the permit application submitted by the

6

---

?etitioners.

Rather,

the Illinois

EPA clearly informed the Petitioners

that

the change

that was

sought

must be consistent with a

change to the development permit, which was the basis for the

language

and special condition in question.

In turn, that change must also require proof oflocal

siting

approval.

Therefore,

the

Illinois

EPA

denied

the

application here

since

there

was

no

corresponding change

to

the

development permit,

and

no

proof of local siting approval

which

would

allow for such a change.

Those reasons were proper

and

were made in the context of the

review ofthe request to modif~’

the operating permit.

The Illinois EPA

did

not relabel the permit

application

submitted

by

the

Petitioners,

it

explained

why

the

permit

application

was

not

appropriate for the relief requested,

and

further stated what would be the proper course ofaction

to take.

In so doing,

the Illinois EPA went above

and beyond its

statutory obligation to provide

reasons

as to why the subject

application was

denied.

The decision was

reached i~a timely

fashion, consistent with the appropriate and reasonable time allowed by the Board’s regulations.

IV.

THE PERMIT APPLICATION WAS SUBJECT TO SECTION

3.330(B)(1)

-

The Petitioners

argue that the Illinois

EPA’s

interpretation of Section

3 .330(b)(l) of the

Act (415

ILCS

5/3.330(b)(1))

was incorrect,

in

that their facility is

not

a new pollution control

facility as defined.

Petitioners’

response, pp.

11-13.

The Illinois

EPA has already provided an

explanation of its

interpretation of that

section as

it applies to

this

case, but

in

summary,

the

Board should bear in mind the following.

The

Petitioners

received

a

development

permit

in

1994

as

a

non-regional

pollution

control facility.

The operating permit was issued following the change in law

that struck such a

designation,

and

accordingly does not make reference to

the facility in that manner.

The permit

modification

now sought

by

the Petitioners

must

legally

and

factually

be

taken

to

include

a

7

---

thange

to

both

the operating

permit

and

development permit.3

However,

there

is

no

longer a

~non-regionalpollution control facility” that is recognized by the Act.

The Petitioner has never

received a development permit for a new pollution

control facility as that term currently exists.

rherefore, if the Illinois EPA were to approve the modification of the development permit here

as would

be

necessary to

modify special

condition no.

9

in

the operating

permit,

it would

be

issuing a development permit for a new pollution control facility for the Petitioners’

facility for

the first time.

This issuance would take place after July 1981,

and therefore

Section 3.330(b)(l)

ofthe Act would without question be applicable.

The Illinois

EPA must apply the law in effect

at the time of its decision.

Skokie Federal

Savings and Loan Association v.

Illinois

Savings and Loan Board,

61111.

App. 3d

977,

990, 378

N.E.2d 1090,

1100

(1st

Dist.

1978).

At the time ofthe Illinois EPA’s decision here, the law in

its

current

form

did

not

recognize

or

contemplate

non-regional

pollution

control

facilities.

Therefore,

it would be

impossible to modif~ya development permit for a non-regional

pollution

control facility,

since

no

such creature

was

defined.

To

modify the Petitioners’

development

permit

would require the issuance of an

initial

development permit for a new pollution control

facility.

There is no question that local siting approval must therefore be required.

V.

THERE IS

NO MERITORIOUS “VESTED RIGHT” ARGUMENT PRESENTED

The Petitioners argue that

the Illinois EPA’s

decision here was a retroactive

application

of the

law

that would

adversely affect

a vested right of the Petitioners

is wholly without merit.

Petitioners’ response, pp.

17-18.

As stated above, the Illinois

EPA’s decision does not apply the

~ In the

Petitioners’

response, the Petitioners

argue that the

analogy posed by

the

Illinois EPA involving

a facility

that

seeks to accept hazardous waste for the first

time

is distinguishable since there is a specific

statutory cite

on that

point.

However,

the

analogy

is

still

an apt

one, since the

point is that

certain

changes

to an operating permit

may

directly involve

changes

to what was specifically provided for in the

development permit.

For example, if a

facility

was permitted to incinerate municipal

solid waste,

and instead

sought

to accept used tires

for incineration.

Such

wastes are regulated

separate from municipal

waste, yet

to allow acceptance without a corresponding

change to the

underlying development permit

would be in error and inconsistent with the purposes of a development permit, i.e.,

to defme and proscribe the

type

and method of developmentof a facility.

8

---

law

as

it

existed

when

the

development

permit

was

issued;

indeed,

if

the

Illinois

EPA

(improperly)

decide

to

apply

that

now

rescinded

law, there would

likely

be

no

permit

denial

since the issues

regarding a new pollution

control

facility would

not

be

evident.

Instead, the

Illinois

EPA

applied the

law as it currently

exists,

and that

law

does not

recognize

that

a non-

regional

pollution

control

facility

as

the

Petitioners

were

so

permitted..

Also,

there

is

no

argument

regarding vested

rights,

since

nothing the

Illinois

EPA

has

done

would

affect

the

permits that have been issued

to

date to the Petitioners.

The Petitioners

at best

have

a vested

right in the permits they now hold, and nothing about the Illinois EPA’s

decision would

impact

that.

The Petitioners are seeking to

obtain something they do not hold, and

that does not involve

any taking of any vested right.

VI.

CONCLUSION

For the reasons stated herein, as well

as those

previously made by ~theIllinois

EPA, the

Illinois EPA respectfully requests that the Board

affirm its final decision.

-

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY,

~

D

John

.

Kim

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: February 20, 2004

This

filing

submitted on

recycledpaper.

9

---

CERTIFICATE OF SERVICE

I, the undersigned attorney

at law, hereby certify

that on February 20, 2004, I served true

and

correct

copies

of

a

REPLY

TO

PETITIONERS’

RESPONSE

TO

RESPONDENT’S

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

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175

West Jackson Street

Suite 1600

Chicago, IL

60604

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue, East

P.O. Box

19274

Springfield, IL

62794-9274

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

John~J.

Kim

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)