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0flfr~fl
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CLERK’S OFFICE
BEFORE
THE ILLINO
T
~BOARD
MAR
222004
STATE OF ILLINOIS
SALINE COUNTY LANDFILL, INC.,
)
Poliution
Control Board
)
PETITIONER.,
)
)
v.
)
No.
PCB
04-117
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
NOTICE OF FILINC
John Kim, Esq.
Rod Wolf
Division of Legal Counsel
Saline County State’s Attorney
illinois
Environmental Protection Agency
10 E. Poplar
1021
North Grand Avenue
East
Harrisburg, Illinois
62946
P.O. Box
19276
Springfield, Illinois
62794-9276
Steve Hedinger
2601
S. Fifth Street
Springfield, Illinois 62703
Pleasetake notice that Ihave todayfiled with the Clerk ofthe Pollution ControlBoard, Brief
ofPetitioner, Saline
County Landfill, Inc.,
and certificate ofservice,
on behalf of Saline County
Landfill, Inc., via fax transmission and overnight mailing.
~
Brian
E.
~6nzen,
~sq.
Lueders, Robertson, Konzen LLC
1939 Delmar, P.O. Box
735
Granite City, Illinois 62040
Phone:
(618) 876-8500
ARDCNo.: 06187626
45117
P.04/22
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~
u ~
u
MAR 22
2004
BEFORE THE
ILLIN
IS POLL
TION CONTROL BOARD
TATE OF ILLINOIS
Pollution Control Board
SALINE
COUNTY LANDFILL, INC.,
)
)
PETITIONER,
)
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
BRIEF OF PETITIONER,
SALINE
COUNTY
LANDI~1LL,
INC.
FACTS
This petition for review presents a question of statutory construction, concerning
Section
39.2(f)
ofthe Illinois Environmental Protection Act.
415
ILCS
5/39.2(f),
OnNovember 21, 1996, the Saline County Board granted local siting approval to
a proposed
expansion ofthe sanitarylandfill owned and operated by Saline County Landfill, Inc. (SCLI)
See
IEPA’s response to requests to admit, no.
9, heaxing exhibit 3.
On December 31, 1996, the Illinois
Environmental Agency (JEPA)
issued a permit for the development and operation ofan
expansion
ofthe Saline County Landfill.
That permitted expansion comprised a portion ofthe same air space
that the Saline CountyBoard had grantedlocal siting approvalto November21. See fEPA’s response
to request to admit no.9, hearing exhibit 3.
This
December
31,
1996 permit, no.
1996-147-LFM,
allows for the vertical expansion of
15.8
acres ofthe then-operating sited facility, and
a 4.8
acre
lateral expansion, all part
of
the larger expansion approved at the November 21,
1996 local siting
hearing. Thatexpansion air spacewasthen partiallyfilled with permittedsolid waste. A copy ofthat
complete permit
1996-147-LFM is attached to
SCLI’s petition for review.
MAR
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Less than three years from the date of local siting approval, in October,
1999, SCLI timely
submitted to the Illinois Environmental Protection Agency (EPA),
an application to
develop and
operate a horizontal and vertical expansion ofSCLI’s proposed sanitary landfill.
JEPA deniedthat
application for development permit,
for the sole stated reason that application proposed a landfill
design inconsistent with the landfill design approved atJ~ocalsiting.
Specifically, the application for
development permit denied by
the EPA
on January 4,
2002, proposed a landfill with
no interior
separation berm between two sanitary landfill units.
Hearing exhibit 2.
The application submitted
to the Saline County Board and approved
in
1996
was found by this
Board to include
an interior
separation berm between two landfill units, as explained below.
An expedited appeal between the same parties as the instant cause, SCLI and the IEPA, in
PCB 02-108. followed.
On May 16, 2002,
this Board affirmed the EPA’s
permit denial on thesole
grounds stated in
that January 4, 2002 permit denial letter, referenced above.
In so affirming the IEPA in PCB 02-108, this Board held:
Finally, though it has no bearing on the Board’s decision today, and
the Board makes no ruling on it,
theparties do not dispute thatSCI!
can
avoid
returning for
siting
~f
it
submits
an
amended permit
application, proposing
a
wider
interior separation
berm,
100 feet
wide instead of5O.
PCB 02-108, May 16, 2002 Opinion, page
19 (emphasis added).
The TEPA did not appeal orotherwise contestthis determinationby theBoard, quoted above.
Intervenor County of Saline filed a motion
to reconsider this sentence quoted above.
This Board
denied the County’s motion to reconsider on July
11, 2002, holding:
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The
Board
finds
that
the
County’s
assertions
are
groundless,. ,Moreover, not only did
the sentence at issue
expressly
provide that the Board was making no statement ofthe law, but the
Board cannot misstate the law by merely observing, as it did, what the
parties have not disputed...The challenged language plainly referred
to SCLI submitting a d~Threntpennit
application to the Agency, one
that
for
the
first
time
would
include
a
100-foot
wide
interior
berrn...The Board
therefore denies the
County’s
motion.
PCB
02-
108, July
11, 2002, page 2.
Neither the Intervenor, County of Saline, nor the EPA, appealedthe Board’s decisions in PCB 02-
108.
While the appeal in causePCB 02-108 was pendingbeforethis Board, SCLI had on file with
the IEPA an application for renewal ofits operating permit.
During the pendency ofthe appeal in
PCB 02-108, SCLI amended its renewal permit application to add to that application, IEPA log no.
200
1-362,
another application
for a permit to expand
its sanitary landfill.
In January or February
of2003, the permit section manager, Bureau ofLand,
IEPA, contacted SCLI’s representatives and
requestedtheywithdraw that application fordevelopmentpermit.
Consistentwith thepositiontaken
by
the EPA
before this
Board
in
PCB
02-108,
the Permit
Section
Manager
advised
SCLI’s
representatives the November 21,
1996,
local siting approval remained valid and would not expire
under the IEPA’s interpretation ofsec. 39.2(f) ofthe Environmental Protection Act (Act),
415
ILCS
5139.2(f).
The Permit
Section Manager further told representatives ofSCLI in January or February
of2003
that the entire
application, including the application for renewal ofthe operating permit,
would haveto be denied ifthey did not withdraw the application for expansion from the application
forrenewal permit.
SCLJ immediately withdrew the expansion application from its renewalpermit
application in IEPA log number200 1-362, on February 7, 2003,
See IEPA’s amended responses to
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requests to admit, no.
14, hearing exhibit 4.
See Hearing transcript. pages 60-61.
35-39.
See further
the March
12, 2003
correspondence of the Permit Section Manager, hearing exhibit
6.
The parties conceded and this Board noted
in PCB
02-108, that SCLI could file a new and
different application for a permit for development of an expanded landfill.
PCB 02-108, May
16,
2002, page 19,
and July
11, 2002.
SCLI accordingly filed within two months ofFebruary?, 2003
an
application for developmentpermit of its sanitary landfill, this time proposing a 100
foot wide
interior separation berm, EPA
log number03-113. See IEPA’s responseto requestto admit number
10.
Hearing exhibit
3.
The EPA admits the application for developmental permit in EPA
log no.
03-1 13
is consistent with the design submitted to the County for local siting approval in 1996.
The
application fordevelopmental permit in JEPA log no.
03-113 is consistent with thelanguage quoted
above from this Board’s May 16, 2002 Opinion in PCB 02-108, in that the application in log no. 03-
113 proposes a
100 foot wide interior sdparation berm.
Hearing transcript, pages
51-53,
48.
On March 12, 2003, the permit section manager, Bureau ofLand, IEPA, wrote a letter to an
attorney who had advisedthe IEPA that it represented the Intervenor, the County of Saline.
In that
correspondence,
the Permit Section Manager stated,
Instead,
we
have
interpreted
Section
39.2(f)
of
the
Illinois
Environmental Protection Act
to mean that
a landfill’s
local siting
approval expireswithin 3 years ofbeinggrantedonlyif an application
for
a
development permit
has
not been
made
during that
3-year
period.
This
interpretation
has
consistently
been
employed
in
answering questions from potential operators and in reviewingpermit
applications.
SCLImade application for a lateral expansion(Log no.
1999-381)
within
3
years
of obtaining
local
siting approval
and
although
that
application
was
denied
the
and
Illinois
Pollution
Control Board has affirmed its denial, the 1996 local siting approval
remains
viable.
Accordingly,
if
SCLI
were
to
submit
a permit
application for a lateral expansion, that was consistent with the 1996
local siting approval and that met all the regulatory requirements, the
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Illinois EPA would be obligated
to approve it.
Hearingexhibit 6.
This March
12, 2003 letterwas consistent with the statementsmade by thePermit
Section Managerto the representatives ofSCLI in January or Februaryof2003, and was a document
accessible to the public.
Hearingtranscript pages
35-37,
61,
52.
See EPA’s
amended responses to
requests to
admit, no.
4, 5, hearing exhibit
4.
See further IEPA’s response to request to admit no.
6, hearing exhibit 3.
The Permit Section Managertestified a development permit for SCLFs proposed expansion
in
EPA
log
no.
03-113 was drafted, prepared,
and
unanimously recommended for the Section
Manager’s signature, by all reviewers and applicable staff atthe EPA.
Hearingtranscript pages 46-
48.
On December
5,
2003, the EPAreversed without warning its repeatedly-stated interpretation
ofSection 39.2(f) oftheAct, and denied SCLI’s application forthe developmentpermit in EPA log
no. 03-113.
The sole stated reason in the December
5,
2003 permit denial letter, was that SCLI’s
local sitingapproval expired.
Therecord in the instant appeal reflects theEPA
gaveno justification
for the reversal ofits interpretation of Section 39.2(f).
See EPA’s amended responses to requests
to
admit,
no.s
4,
5,
and
18,
exhibit 4.
March
12,
2003
letter from
the Permit Section Manager,
exhibit
6.
See EPA’s
response to requests to admit no.
17, exhibit
3.
Hearing transcript, page 35-
39,
46.
Attempts by SCLI
to
determine the justification for the reversal ofthe EPA’s
statutory
interpretation, were objectedto by the TEPA and Intervenor. Hearing transcript, pages 21-24,49-51.
This appeal timely followed.
Petition for review filed January 7, 2004.
5
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The
JEPA
admits
before
issuing
the December
5,
2003
permit
denial
letter
to
SCLI,
it
consistently interpreted Section
3 9.2(f) ofthe Act such that
a local siting approval does not expire,
except where the applicant fails to submit an application for development permit to the LEPA within
three years.
The IEPA admits it consistently so interpreted Section 39.2(f) ofthe Act
for since at
least 1994.
Exhibit 4, no’s
4,
5,
18.
Hearing transcript, page 52, 35, 39.
The EPA
admits SCLI
has had
continuously pending since October,
1999
applications for permit to
expand its Landfill,
except for two periods, of two
weeks and two
months respectively.
EPA
response to
request to
admit number 10,
Exhibit 3.
ISSUE
The issue
is
whether under 415
ILCS
5/39.2(f) of the
Act,
the
local
siting
approval of
November 21, 1996,
expired.
The parties agree the issue on review is framed by the December
5,
2003
denial
letter from the EPA. hearing exhibit
5,
and
no other reasons for permit denial exist.
Transcript page 32-33.
STANDARD
OF REVIEW
The standard ofreview in
this cause is whether issuance ofthe permit
sought by SCLI will
cause a violation ofthe Environmental Protection
(Act), specifically 415
ILCS 539.2(f).
There is
no allegation that issuance of a permit will cause a violation of the Board’s applicable regulations.
IEPA’s response to request to admit no.
17, hearingexhibit 3.
This standard ofreview is articulated
in 415
1LCS
5/40(a).
Because the issue before the Board is
strictly one of statutory interpretation, upon further
review ofthis cause by an appellate court, the standard ofreview will be de novo review, instead of
the manifest weight of the evidence.
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LAW
Tn interpreting a statute, the words chosen by the legislature are to be given their plain
meaning. The intent of the legislature should be ascertained primarilyfrom a consideration ofthe
legislative language itself,which affords the best means of its determination. No nile ofstatutory
constructionauthorizesa
tribunal
to declare the legislature did not
mean
whatthe plain language of
the statute imports. EnviriteCorporation
v.
IllinoisEPA, 158 Ill.2d210, 632 N.E. 2d 1035 (Ill.S.Ct.
1994).
It is a basic rule of statutory construction that the inclusion ofone limitation is the exclusion
ofothers.
Incluslo un/us est exclusio alter/us.
BowningFerris Industries, Inc. v. PCB, 127 Ill.App.
3d 509, 468 N.E.2d 1016 (Third Dis.
1984).
Rochelle Disposal Service, Inc.
v.
IPCB,
266 Ill. App.
3d 192, 639N.E,2d 988
(2~~d
Dis.1994).
Though an agency’s interpretation ofits
own regulations or rules
is often entitled to
great
weight,
an agency’s statutory interpretations are
reviewedde novo by the courts. Courts will not
defer to
an
agency’s interpretation that
is
contrary to
the plain language of the
statute.
Marion
Hospital v. IllinoisHealth Facilities J~~lannin~
Board, 324 Il.App.
3d
451,
753 N.E.2d 1104 (1 ~Dis.
2001).
Therule that the interpretation ofa statute by an administrative body charged with applying
the statute is given weight,
is usually applied where the statute
is ambiguous
and
where
the
interpretationbythe administrativebodyis longcontinued
and
consistentsothatthe legislaturemay
be regarded as having concurred in it. Moy
V.
Dept. ofRegistration andEducation, 85 Ill.App.3d
27, 406 N.E.2d 191 (1~Dis 1980).
Ill. AttorneyGeneral Opinion, 99-008. July 9, 1999.
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An agency’s statutory interpretation that conflicts with the agency’s earlier interpretation is
entitled to considerably less deference thana statutoryinterpretation consistentlyheld by the agency.
Mobile Oil
v. EPA, 871 F.2d 149 (DC Cir.1989).
General Electric Co.
v. Gilbert,
429US 125, 142
(1976).
NLRB v. Food anSI Commercial Workers, 484 US
112,
124 n. 20 (1987).
INS v. Cardoza-
Fonseca, 480 US
421,446
n.
30
(1987).
Watt v. Alaska, 451
US 259, 273 (1981).
Itis of
great concern to the Illinois courts and this Board when the EPA acts inconsistently.
Chemetco
v.
Illinois
Pollution
Control
Boar4,
140
Ill.
App.
3d
283,
488
N.E. 2d
639,
643
(5t~~
Dis.1986).
AltonPackag~no,
146111. App. 3d 1090, 497N.E. 2d864, 866
(5thDiS.,
1986).
Owens
Oil
Companvv. Illinois EPA, PCB
98-32 (December
18,
1997, page 2.)
BASIC RULES OF STATUTORY CONSTRUCTION
REQUIRE THE IEPA
TO ISSUE SCLI’S
PERMIT
The
statutory
language
at
issue
is
plain
and
unambiguous.
Basic
rules
of statutory
construction support issuance of SCLI’s pemiit.
415
ILCS
5/39.2(f) provides:
A local siting approval granted under this section shall expire at the
end oftwo
calendar years after the date upon which
it was granted,
unless
the local
siting approval granted under this section
is
for a
sanitary landfill operation, in which case the approval shall expire at
the
end
of three calendar
years
from
the
date upon
which
it was
granted,
and
unless
within
that
period
the
applicant
has
made
application
to
the Agency for a permit
to
develop the
site.
In the
eventthatthe local siting decision hasbeenappealed,suchexpiration
period shall be deemed to
begin
on the date upon which the appeal
process
is concluded.
Except as otherwise provided in this subsection, upon the expiration
of a
development permit
under
subsection (k) of Section
39,
any
associated
local
siting approval granted for the
facility under
this
section shall
also expire.
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Under the plain meaning ofthe language chosen by the legislature in
39.2(f) ofthe Act,
a
local
siting approval issued
by the County
Board
does
not
expire where
the
JEPA
receives
an
application for a permit to
develop the sanitary landfill within three years.
it
is undisputed SCLI
timely submitted an application for permit to
develop the sanitarylandfill within three years of the
November 21, 1996
local siting approval.
See hearing exhibit 6, the March 12, 2003 letter from the
PermitSection Manager.
Theprimarynile ofstatutory interpretation is to follow theplain language
ofthe Act.
Envirite Corporation v. Illinois EPA, 158 Ill. 2d 210, 632 N.E.2d
1035
(Ill.S.Ct. 1994).
This Board should follow the plain meaning ofthelanguage ofthe Act.
To hold local siting
expires after an unsuccessful appeal ofa permit denial would read into the Act additional language
not chosen by the legislature in section 39.2(f). To hold an application fordevelopment permit must
be continuously pending and on file with the IEPA to preserve the vitality of local siting approval,
similarly requires the reading into 39.2(f) oflanguage not written by the legislature.
Such strained
interpretations ofthe Act fail to follow the plain meaning of the language in the Act.
Where the legislature carefully articulates in the plain language of the statute,
the various
scenarios by which a local siting may expire, this Board should not read
into
the Act anything else.
In Section
39.2(f), the legislature states a local
siting expires where
the landfill applicant fails to
apply to the EPA for developmentpermit withinthree years ofthe dateupon which local siting was
granted.
The legislature further specifies the three-yearperiodto submit a permit application to the
EPA
shall not
begin to run until
conclusion of any
appeal
of the
local
siting
decision.
The
legislature further specifies a local
siting approval may expire upon expiration of a development
permit
under subsection (k) of Section
39 of the Act.
Where the legislature carefully articulates
possible exceptions to the continuing validity of the local siting, this Board
should
not read new
9
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exceptions into theAct.
The inclusion ofthose multiple scenarios where local siting expires, serves
to
exclude all other scenarios where local siting
might expire.
Browning Ferris Industries,
Inc. v.
~
127 Ill.App.3d 509, 468 N.E,2d 1016 (Third Dis. 1984)
Rochelle Dist~osal
Service v. IPCB,
266 Ill.App3d
192,
639
N.E.2d 988 (2~Dis.1994).
Intervenor
apparently
conceedes
Section
39.2(f) of the
Act
is
unambiguous.
Hearing
transcript,
page
27.
Where
the Act
is
clear,
other rules
of statutory
construction should
not
be
resorted to.
Envirite, spupra.
This Board need look no furtherthanthe
plain languageofthe
Act, Section 39.2(f),to resolve
this dispute.
IEPA is creating a new statute oflimitations on the validity oflocal sitings not found
in Act, and a new requirement the applicant must have a continuous, ongoing permit development
application, also not in theAct.
EPA is furthercreating a newrequirementan applicant cannot have
a gap
or break
in
continuity among
its
applications for incremental development of its
locally
approved expansions.
THE SUDDEN REVERSAL OF INTERPRETATION
OF THE
ACT
BY THE IEPA
IS ITSELF SUSPECT AND NOT ENTITLED TO DEFERENCE.
TheFifth District AppellateCourt, thetribunal that will hearany reviewoftheBoard’sruling
in the instant cause, repeatedlystressedto thePollution ControlBoard theimportance ofconsistency
in
interpreting
the Act.
“Ofgreat concern to
us is the fact that the Pollution Control
Board is not
consistent in its reading ofthe Act.”
Chemetco v.
Illinois PoliutionControl Board,
140
IlL App. 3d
283,488 N.E. 2d 639,643
(5th
Dis.1986).
“Wenote administrative bodies arebound byprior custom
and practice in interpreting their rules and may not
arbitrarily disregard them.”
Alton Packaging
Cprppration v. Pollution Control Board and IEPA, 146 Ill. App. 3d
1090, 497 N.E. 2d 864,
866
(5th
10
MAR
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Dis.
1986).
The JEPA
arid this Board are bound
by
prior custom
and practice, and the need for
consistency in their interpretation ofthe Act, because“Administrative proceed.ings are
governedby
the fundamental principals and requirements ofdue process oflaw.” Alton Packaging, 146111. App.
3d 1090,497 N.E. 2d 864,
866
(5th
Dis., 1986). Thus, grantingthe desired permit in theinstant cause
to
SCLI would not cause a violation ofthe Environmental Protection Act, because the IEPA should
read Section
39.2
(1) of
theAct consistently, as
it
had
for ten years before the instant application.
Tlliiiois
Appellate courts
consistently
accord
some
deference
to
the
long-continued
and
consistent statutory interpretations of an
administrative agency charged with applying the statute.
Moy v. Department ofRegistration and
Education 85111. App. 3d27,406 N.E.2d 191
(Pt Dis. 1980).
The rule
is
that
the interpretation of a
statute by
an administrative
body charged with applying the statute should be givengreat weight
by
courts
and
that
such an
administrative interpretation
is
to
be
regarded
as
a
substantial
factor
in
the
interpretation applied by
a
reviewing court.
This
rule
is usually applied
in instances where a
statute
is
ambiguous
and
where
the
interpretation
by
the
•
administrative
body
is
long
continued
and
consistent so
that
the
legislature may
be
regarded as having concurred
in
it
(emphasis
added)
Even
the Office of theAttorney General advises,
“While it is true an
interpretation of a statute by an
administrative
body
charged
with
applying
the
statute
is
ordinarily
accorded
deference, that principal is generally applied in
instances where the
statute
is
ambiguous,
and
where
the
interpretation
of
the
administrative
body
is
long-continued
and
consistent
so
the
legislature
may
be
regarded
as having
concurred
in
it.”
Illinois
Attorney General’s Opinion 99-008, July 9,
1999.
Thus, the only statutory interpretation in theinstant causethat is entitled to deference by any
subsequent court of review, is the long-standing, consistent interpretation by the IEPA of Section
11
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39.2(1)
that
local siting approvals
do
not
expire so
long as application for development permit is
made within three
years. Asboth theIllinois appellate
courts and the Office ofthe Illinois Attorney
General state, a new interpretation of the Act, inconsistent with the previous interpretations by the
are not
entitled
to
such deference, because the
legislature can
not be regarded as having
concurred.
The JEPA’s consistent
interpretation of Section 39.2(1) Act for several years before
December 5,
2003.
should
be undisputed. For about
ten years,
the IEPA consistently interpreted
Section 39.2(1) ofthe Act to hold that
a local
siting approval does
not expire so long as the JEPA
received a development permit
application with three years of the local
siting.
See
the IEPA’s
amended responses to requests to admit number 4,
15,
18, hearingexhibit 4.
See theMarch 12, 2003
correspondence signed by Joyce Munie,
Manager, Permit Section, Bureau of Land, JEPA, hearing
exhibit
6.
See further the unchallenged testimonyofMs. Munie, as Permit Section Manager, atthe
March 4, 2004hearing, transcript pages
35-39, 51-52.
Tn that
same testimony, the Permit Section
Manager further admitted SCLI received no warning ofthe reversalby the IEPAofit~
interpretation
of 39.2(f), before the December
5,
2003
permit
denial
at
issue.
Thus,
the
IEPA has repeatedly
admitted ofrecord the suddenreversal ofits long-standing interpretation ofSection 39.2(f), and that
the reversal occurred without warning or explanation
from
the EPA
itself,
to
SCLI.
Such
an
unexplainedreversal ofa longstanding statutory interpretation is not entitled to deference on review.
Like the appellate courts, this Board recognizes theimportance ofconsistencyin the actions
ofthe IEPA.
“When an
Agency
departs
from
its prior practice, it accordingly must be
for good
cause, such as change in law, determination that the facts ofthe new matterare
different fromthose
upon the prior practice was based, or determination that the prior practice was
in
error
(citations
omitted).
No
such
cause
is
present here.”
Q~ensOil
Company
v.
Illinois
EPA, PCB
98-32
12
MAR
22
‘04 18:06 FR LUED ROBTSN a
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618 876 4534 TO 13128143669
P.16/22
(December
18,
1997,
page
2•)
In
the
instant
cause,
the EPA
departed
from
a
long
standing
interpretation ofthe statute without any determination ofrecord that the prior practice was an error,
without any change in the statute, and without any determination that the facts in the instant cause
are
different.
The
IEPA can
not now retroactivelyjustify a change in its longstanding statutory
interpretation.
The Act
requires that
the reasons for the permit denial be given at the time of the
denial.
Such reasons can not be
supplemented now.
415
TLCS 5/39(a).
It is true courts will give greater weight to an
agency’s construction ofits own promulgated
rule
than
to
an
agency’s
interpretation
of a
statute.
However,
even
this
Board’s
regulatory
interpretations are not entitled
to
great weight where the interpretation is
inconsistent with long-
settled constructions, orwhere this Board’sprior interpretations havebeen inconsistent. Dean FOOdS
Co.
v
Pollution Control Board 143 Ill. App. 3d 322, 492 N.E. 2d
1344,
1349 (2’~Dis,1986).
ALL PARTIES TO TIlE INSTANT APPEAL CONCEDED,
AND THIS BOARD
RECOGNIZED, THE NOVEMBER 21,
1996 LOCAL SITIING HAS NOT EXPIRED.
Ofgreat significance is the IEPA’s judicial
admission before this Board that another local
siting application for SCLI was unnecessary to allow an
expansionpermit to issue to SCLI.
Thus,
the
IEPA admitted ofrecord before this Board that theNovember21, 1996 local siting approval did
riot expire. See the Opinion ofthis Board in PCB 02-108, May 16, 2002, page 19.
That Opinion was
attachedto and filed with theoriginal petitionforreviewin this instant cause. Intervenorrecognized
the significance ofthis judicial admission by the EPA, as stated by this Board in PCB
02-108, on
May16, 2002, so Intervenormoved forthis Board to reconsiderits decision asto that language.
This
Board made the appropriate decision and
denied the Intervenor’ s motion to reconsider on July ii,
2002.
Neither Tntervenor, County of
Saline, nor the IEPA appealed this Board’s recognition ofthe
13
MAR 22 ‘04 18:07 FR LUED ROETSN
a KONZEN 618 876 4534 TO 13128143669
P.17/22
IEPA’s judicial
admission-that another local
siting approval
was unnecessary
to allow SCLI to
obtain an
expansion permit.
Therefore,
the December
5,
2003
permit denial, and
its
reversal of
position by the EPA
concerning the continuing validity ofthe 1996 local siting approval, is
all the
morevulnerableto challenge.
The EPA should not be allowed to withdraw its admissions ofrecord
before this
Board, and force
SCLI
to attempt or undergo
another local siting approval process.
THE 1996 LOCAL SITING APPROVAL COULDNOT HAVE EXPIRED, BECAUSE THE EPA
PERMITTED FOR DEVELOPMENT AND OPERATION A PORTION OF THAT LOCALLY
APPROVED EXPANSION.
After the
1996 local siting approval, the JEPA issued
a development and operation permit
for vertical expansion ofSCLI’s landfill, dated December31,
1996, EPA Log Number 1996-147.
Said 1996 permit is attached to the initial petition for reviewfiled by SCLI in theinstant appeal.
The
IEPA admits permit 1996-147 authorizedthe vertical expansion ofSCLI Landfill, including vertical
expansion
into air space approved at the November 21,
1996
Jocal siting approval.
See
IEPA’s
responses to request to
admit number 8 and 9, hearing exhibit 3.
Therefore, the November21, 1996
local siting approval couldnot have expired due to alleged failure to timelyapply for a development
permit under 415 ILCS 5/39.2(f)-the expansion approved at local siting was in fact
partlypenriitted
by
TEPA for development and operation,
and was in fact partly filled with waste pursuant to that
permit.
Intervenoror theIEPAmight nowargue the December31, 1996 permit, 1996-147, pertained
to a previous localsiting approval, before the November 21,
1996
siting approval at issue.
This
argument was implicitly rejectedby
thisBoard inPCB02-108, in its
May 16,2002 opinion,page 17.
This Board held that theNovember 21, 1996 a local siting approval, thevery siting approval atissue
in the instant cause, superseded allprevious local siting approvals. InPCB02-1 08, SCLIargued to
14
MAR 22
‘04 18:08 FR LUED ROETSN a KONZEN 618 876 4534 TO 13128143669
P.18/22
this Board the County granted before
1996
local siting approval for a landfill expansion
with no
interior separation benn.
This Board held theNovember 21, 1996 local siting approval “necessarily
amended the County Board’s” earliersiting approval.
NeitherIntervenor, CountyofSaline, nor the
IIEPA, appealed or challenged that ruling by this Board in PCB 02-108.
Thus, this Board showed
ruletheDecember
31,
1996 developmentpermit pertains to and is based on the local siting approval
granted November 21,
1996, because the
1996 local siting approval necessarily amends any prior
local siting approval.
Therefore, bylaw theDecember 31,
1996 permit constitutes a timelypermit,
issued for expansion air space approved at the same
1996 local
siting approval the EPA believes
has expired.
Ifpermitted, and partly filled, the local siting cannot have expired.
Regardless ofhow this Board interprets Section
39.2(f)
oftheAct, that December 31, 1996
expansion permit, 1996-147-LFM, removes the subject Landfill
from
arguments the November 21,
1996
local
siting expired.
That is,
SCLI’s three-year time
frame to
seek
a development permit
following local
siting approval did not expire, because multiple development permit applications
were timely filedwith the EPA concerning thenewair space approved at the 1996 local siting, and
atleast one permit for development and operation ofpart oftheproposed expansion issued, afterthe
1996 local siting.
No further analysis or ruling by this Board is necessary.
ARGUMENTS RAISED BY INTERVENOR
During the March 4, 2004 evidentiary hearing in the instant cause, Counsel for Intervenor
misstated SCLI’s positionby mischaracterizing the instant appeal as based on equitableestoppel or
detrimental reliance principals.
Transcript,
page
40.
SCLI
is
not
arguing equitable estoppel
or
detrimental reliance, norare the principals
of
detrimental reliance
and equitable estoppelpleaded in
SCLI’s petition for review.
Further, there is no
allegation by SCLI that representatives ofthe EPA
15
MAR 22
‘04 18:09 FR LUED ROETSN a
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618 875 4534 TO 13128143669
P.19/22
knowingly made untrue representations,
one of the typical elements of the doctrine of equitable
estoppel.
People v. Freedom Oil
PCB
93-59
(May
5,
1994 et
5.)
Instead ofequitable estoppel and
detrimental reliance principals,
SCLI
argues the sudden reversal
in the IIEPA’s long-standing
arid
consistent interpretation of 39.2(1) ofthe Act, results
in an incorrect statutory interpretation, and
denies SCLI fairness.
Intervenor or the IEPA may cite
this Board’s Opinion
in Village
of Fox
River_Qrove
v.
Illinois EPA, PCB
97-156,
for the propositions that. (1.)
The EPA claims the right to correct its
own past misinterpretations ofthis Board’s rules,
and
(2.) The EPA’s previous misinterpretations
of this Board’s regulations
are therefore not relevant to the instant appeal.
SCLI submits the ruling
ofthis Board in Village ofFox River
V.
Illinois EPA, PCB
97-156,
distinguishable and inapplicable
to the instant appeal.
The ruling of this Board
in
Village of Fox River Grove
v. Illinojs
EPA,
PCB
97-156,
is
inapplicable to the instant appeal becausethe
instant appeal involves solely construction ofthe Act,
while the Village in Fox River~rove
sought an interpretation ofthis Board’s own regulation.
The
distinction
is
critical,
because
upon
appellate
review,
this
Board’s
interpretations
of its
own
regulations are entitled to great deference, but new or inconsistent interpretations ofthe Act are not
entitled to such deferenceby an Appellate Court. Unlike the instant cause, the sole issue before this
Board in VillageofFox River~rove
v. Illinois EPA, PCB
97-156,
was “whetherthe Village should
be required to meet the effluent standards set forth in 35
Illinois Administrative Code 304.120(b).”
Fox River, PCB
97-156,
page two.
Unlike Fox River Grove,
in
the instant
cause, the
IIEPA’s
interpretation ofthe
Act
was
consistent
for about ten years,
ample
time to
demonstrate
the legislature’s
concurrence with the
16
MAR 22
‘04 18:09 FR LUED ROBTSN a
KONZEN
618 876 4534 TO 13128143669
P.20/22
IEPA’s
statutory interpretation.
ILn
the instant
cause, unlike
Fox River Grove, the EPA has not
corrected a misinterpretation of this Board’s own regulations.
Unlike the facts in Villa~e
of Fox River Grove, this
Board has already acknowledged and
acquiesced in the IEPA’s previous interpretation of Section 39.2(1) of the Act.
In PCB 02-108, on
May 16, 2002. page
19, this Board recognized all parties agreed SCLI could apply fora development
permit to
expand SCLI’s landfill without seeking another local siting approval.
For this Board to
hold otherwisenow would be inconsistent with PCB 02-108. and therefore distinguishablefrom the
record presented
to the Appellate Court
in Fox River Grove.
The Intervenorequates a permit denial with a failure to file a permit application withinthree
years oflocal siting approval.
415 ILCS
5.39.2(1)
contains no such language.
In fact, SCLI timely
filed a complete developmental permit application in
1999.
The permit denial stated no issues of
completenessor timeliness, and the Agency is requiredby law to detail thereasons for permit denial
-
415 ILCS
5/39(a).
Again,
SCLI niet the statutory time requirements to preserve the validity of its
local siting.
Instead
of
“banking”
its
local
siting
as
alleged
by
Intervenor,
SCLI
diligently
and
continuously
pursued its
permit.
The EPA
admits SCLI
has had
a permit
application pending
almost continuously since 1999. S CLI zealously obtained expedited reviewofits permit application
by the Board in PCB 02-108.
Further, SCLI modified the proposeddesign in its permit application
so as to
reduce the facility’s impact on the nine siting criteria of415 ILCS
5/39.2(a).
PCB 02-108,
decided May 16, 2002.
Waste Management of Illinois
v. EPA, PCB No.
94-153, (July 21,
1994).
The facts ofthe pending permit application
do not
support
the concerns expressed by
Intervenor
about
banking oflocal siting approvals.
17
MAR 22 ‘04 18:10 FR LUED ROBTSN a
KONZEH
618 876 4534 TO 13128143669
P.21/22
CONCLUDING ARGUMENTS
SCLI
urges
this Board to promote consistency in interpreting the Act. SCLI respectfully
directs this Board’s attention to its Opinion in Saline County Landfill, Inc. v. IEPA, PCB 02-108,
April 18, 2002, page 21:
.permitting
necessarily
follows
siting,
and,
practically speaking,
some changes from
earlier designs will almost inevitably occur and
indeed
may
have
to
occur
to comply with the Act
and
Board
regulations.
An applicant that has been through local siting, an often expensive
and
time-consuming process, should nothave to
return
to get new
local siting approval for every single design changewithoutregard to
the import ofthe change.
Just
as theBoard
will not allow the local
siting process
to be effectively bypassed,
the Board will not send a
permit
applicant back to
the restart
a process
started roughly
six
years agowithoutjust~fl
cation grounded in the words andpolicies of
the Act,
(Emphasis added).
This Board further held on page 23,
The Board
notes
that
if each
and
every
design
change
made
in
permitting a landfill expansion automatically meant the redesigned
expansion
lacks
local
siting
approval, the result could be
a nearly
endless loopof siting, followedbyperinitting, followedbysiting,
ad
nausearn.
SCLI
submits basic rules of statutory construction,
consistency with the EPA’s
historic
interpretationofthe Act,andconsistencywith thisBoard’s
own Opinion in Saline County Landfill
v.
LEPA, PCB 02-108, require a development permit to issue to SCLI.
SCLI prays this Board reverse and remand the December
5,
2003 permit denial
back to the
EPA,
with instructions
to issue a permit to
develop the requested expansion, to
SCLI instanter, in
18
MAR
22
‘04
18:11 FR LIJED ROBTSN
a KONZEN 618 876 4534 TO 13128143669
P.22/22
EPA logno. 03-1 13.
SCLlrequests such additional and furtherrelief as this Board deems fair,just,
and equitable.
~
Brian
Konzen
Lueders,
Robertson & Konzen L
C
1939 Delmar
P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.:
06187626
45389
19
**
TOTAL FRDE.22
**
MAR 22
‘04 17:57 FR LUED ROBTSN
~
KONZEN 618 876 4534 TO 13128143669
P.03/22
)
)
)
No.
PCBO4-117
)
(PERMIT APPEAL)
)
)
)
)
~ECE~VED
LERK S OFFICE
~LBOARD
MAR 222004
STATE OF ILLINOIS
POIIUtiOfl Controj Board
CERTIFICATh OF SERVICE
I, the
imdersigned, certify
that I haveserved the attached Brief of Petitioner, Saline County
Landfill,Inc., via fax transmission and overnight mail upon the following persons on this
22nd day
ofMarch, 2004, per theHearing Officer’s Order ofMarch 4, 2004
John Kim, Esq.
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, Illinois
62794-9276
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Ave. East
P0 Box
19274
Springfield, Illinois 62794-9274
Rod Wolf
Saline County State’s Attorney
10
B. Poplar
Harrisburg, Illinois 62946
Steve Hedinger
2601
S. Fifth S&eet
Springfield, Illinois 62703
Fax: 217-782-9807
Fax: 217-524-8508
Fax:
618-253-7160
Fax: 217-523-4366
BEFORE THE ILLIN~
SALINE
COUNTY LANDFILL, INC.,
)
)
PETITIONEI~
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENT.
45117
MAR 22 ‘04 17:56 FR LUED ROETSN
& KONZEN 618 876 4534 TO 13128143669
P.01/22
~I16~u~I
1~\
U
U
~I’~F~
i
1
11111
CLERKS OFFICE
LUEDERS,
~
MAR
222004
1S~
DELMAP
AV~NUC
P.
O.
~OX
~
STATE OF ILLINOIS
GRANITE
CITY.
ILLINOIS
Pollution Control Board
ZIP
CODE G2D4O’O7~5
616-~7~’SSOO
FAX
61e-~76-4534
WI.~L,LY
i~i~E
i6~,6-i~,57
RANDALL
ROEEIRTSON
rrobert~on@?rkl~w,corn
LEO
I-I.
KONZEN
IkonZEfl~JIrkIaw,C~m
ERIC
ROBERTSON
erob~lrkI~w.C~m
BRIAN
E. IONZEN
bkor~a~@Irkiaw.com
c.
SMITH
I~mith~IrkIaw.com
March 22, 2004
Dorothy
Gunn,
Clerk
VIA
FAX AND
OVERNIGHT MAIL: 312-814-3669
Illinois Pollution
Control Board
100
W.
Randolph, Suite 11-500
Chicago, Illinois
60601
Re:
Saline County Landfill, Inc. v. EPA
PCB 04-117
Dear Ms.
Gunn,
Enclosed please find
original
and
ten copies of Briefof Petitioner, proof of service, and
notice offiling, per
the Hearing Officer’s March 4, 2004 Order.
A self-addressedstamped envelope
is enclosed as well.
Verytruly yours,
Bnan Konz’~n
/
bklrh
Enclosure
cc:
Service List
45117
