LAW
OFFICES
ROBERTSON
&
KONZEN
LLC
1939
DELMAR
AVENUE
P.
0.
80X
735
GRANITE
CITY,
ILLINOIS
ZIP
CODE 62040-0735
618-876-8500
FAX
618-876-4534
RECEUVED
CLERKS OFFICE
MAR 23
2004
STATE OF ILUNO(S
Pollution Control Board
WESLEY
LUEDERS-
1896-1957
RANOALL ROBERTSON
LEO
H.
KONZEN
ERIC
ROMERTSON
BRIAN E. KONZEN
LAUREN
K.
SMITH
rrobertson@lrklaw.com
konzen@irklaw.com
erobertson@lrklaw.com
bkonzen@lrkpaw.com
smith@lrklaw.com
March 22, 2004
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 W.
Randolph, Suite 11-500
Chicago, Illinois 60601
YIA
FAX
AND OVERNIGHT
MAIL:
312-814-3669
Dear Ms.
Gunn,
Re:
Saline County Landfill, Inc. v. IEPA
PCBO4-117
Enclosed please find
original and
ten copies ofBrief of Petitioner, proof of service, and
notice offiling, per the Hearing Officer’s March 4, 2004 Order. A self-addressed stampedenvelope
is enclosed as well.
v,
Brian Konzen
4
LUEDERS,
bk/rh
Enclosure
cc:
Service List
45117
RECE~VEO
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARDCLE~KSOFFICE
MAR
2 32004
SALINE COUNTY LANDFILL, INC.,
)
STATE OF ILLINOIS
PETITIONER,
Pollution Control Board
)
V.
)
No.
PCB 04-117
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
BRIEF
OF PETITIONER,
SALINE
COUNTY
LANDFILL,
INC.
FACTS
This petition for review presents a question of statutory construction,
concerning Section
39.2(1) Ofthe Illinois Environmental Protection Act.
415 ILCS
5/39.2(f).
OnNovember21,
1996, the Saline County Board grantedlocal sitingapproval to aproposed
expansion ofthe sanitary landfill owned and operated by Saline County Landfill, Inc.
(SCLI).
See
JEPA’s response to requests to admit, no. 9,hearing exhibit 3.
OnDecember 31,
1996, the Illinois
Environmental Agency (IEPA) issued a permit forthe development and operationofan
expansion
ofthe Saline County Landfill.
Thatpermitted expansion comprised a portion ofthe same air space
that the Saline CountyBoard had granted local siting approvalto November21. See JEPA
‘
sresponse
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 of the 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.
That expansionair space was thenpartiallyfilled with permitted solid waste. Acopy ofthat
complete permit
1996-147-LFM is attached to
SCLI’s petition for review.
Less thanthree years from the date of local siting approval, in October,
1999, SCLI timely
submitted to the Illinois Environmental Protection Agency (IEPA), an application to develop and
operate a horizontal and vertical expansion ofSCLI’sproposed sanitarylandfill.
1BPA denied that
application
for development permit, for the sole stated reason that application proposed a landfill
design inconsistent with the landfill design approved at local siting.
Specifically, theapplication for
development permit
denied by the JEPA
on January 4, 2002,
proposed a landfill with no
interior
separation berm betweentwo sanitary landfill units.
Hearingexhibit 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 explainedbelow.
An expedited appeal between the same parties as the instant cause, SCLI and the EPA,
in
PCB 02-108, followed.
OnMay 16, 2002, this Board affirmed theIBPA’s permit denial on the sole
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 hasno bearing on the Board’s decision today, and
the Board makes no ruling on it,
theparties do not dispute thatSCLI
can
avoid returning for
siting
~f
it submits
an
amended permit
application, proposing a
wider interior separation
berm,
100 feet
wide insteadof 50.
PCB 02-108, May 16, 2002 Opinion, page
19 (emphasis added).
The EPA
did not appeal orotherwise contestthis determination bytheBoard, quoted above.
Intervenor County ofSaline filed a motion
to reconsider this sentence quoted above.
This Board
denied the County’s motion to reconsider on July
11,
2002, holding:
2
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 of the law, but the
Board cannot misstate the law by merely observing, as itdid, what the
parties have not disputed...The challenged language plainly referred
to SCLI submitting a
c4fferent
permit application to the Agency, one
that
for
the
first
time
would
include
a
100-foot
wide
interior
berm. ..The Board therefore
denies the County’s
motion.
PCB 02-
108, July
11, 2002, page 2.
Neither the Intervenor, County ofSaline, nor the IEPA, appealed the Board’s decisions in PCB 02-
108.
While theappeal in causePCB 02-108 was pending beforethis Board, SCLI had on filewith
the EPA
an application for renewal of its operating permit.
During the pendency ofthe appeal in
PCB 02-108, SCLI amended its renewal permit application to
add to that application, EPA
log no.
2001-362, another application
for a permit to expand
its sanitary landfill.
In January or February
of 2003, the permit section manager, Bureau ofLand, EPA,
contacted SCLI’ s representatives and
requestedtheywithdraw that application fordevelopment permit. Consistentwith thepositiontaken
by
the EPA
before
this
Board
in
PCB
02-108, the
Permit
Section
Manager advised
SCLI’s
representativesthe November 21,
1996, local siting approvalremained valid and would not
expire
under theEPA’s
interpretation ofsec. 39.2(f) oftheEnvironmental Protection Act (Act), 415 ILCS
5/39.2(f).
ThePermit Section Manager further toldrepresentatives ofSCLI in January or February
of2003
that the entire application,
including the application for renewal of the operating permit,
would have to be denied ifthey did not withdraw the application for expansion from the application
forrenewal permit.
SCLI immediately withdrew theexpansion application from its renewal permit
application in EPA
log number2001-362, on February 7, 2003.
See EPA’s
amended responses to
3
.
requests to admit, no.
14, hearing exhibit 4.
See Hearing transcript, pages 60-6 1, 3
5-39.
See further
the March 12, 2003 correspondence ofthe 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 ofan expanded landfill.
PCB 02-108, May
16,
2002, page
19, and July
11, 2002.
SCLI accordingly filed withintwo months ofFebruary 7, 2003
an
application for development permit of its sanitary landfill, this time proposing a 100 foot wide
interior separation berm, EPA
log number03-113.
See EPA’
sresponse to request to admit number
10.
Hearing exhibit 3.
The EPA
admits the application for developmentalpermit in EPA
log no.
03-113 is consistent with the design submitted to the County for local siting approval in 1996.
The
application fordevelopmentalpermit in EPA
log no. 03-113 is consistent with thelanguage quoted
abovefrom this Board’s May 16, 2002 Opinion in PCB 02-108, in that theapplication in log no. 03-
113 proposes a 100 foot wide interior separation berm.
Hearing transcript, pages 51-53, 48.
On March
12, 2003, the permit section manager, Bureau ofLand, EPA,
wrote a letterto an
attorney who had advised the EPA
that it represented the Jntervenor, the CountyofSaline.
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 expires within 3 years ofbeinggranted only ifan 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.
SCLI made 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
4
Illinois EPA would be obligated to approve it.
•Hearingexhibit 6.
This March 12, 2003 letterwas consistent with thestatements madeby thePermit
Section Managerto therepresentativesofSCLI in January orFebruaryof2003, and wasa document
accessible to thepublic.
Hearingtranscript pages 35-37, 61,
52.
See EPA’s
amended responsesto
requests to admit, no.
4,
5,
hearing
exhibit 4.
See further EPA’s
response to request to admit no.
6, hearing exhibit 3.
The Permit Section Managertestified a developmentpermit for SCLI’sproposed expansion
in EPA
log no.
03-113
was drafted, prepared,
and unanimously recommended for the
Section
Managor’ s signature, by all reviewersand applicable staffatthe EPA.
Hearingtranscript pages 46-
48.
OnDecember
5,
2003,theEPA
reversedwithout warning its repeatedly-statedinterpretation
ofSection 39.2(1) ofthe Act, and denied SCLI’s application for thedevelopment permit in EPA
log
no.
03-113.
The sole stated reason in the December 5,
2003 permit denial letter, was that SCLI’s
local siting approval expired. Therecord in theinstant appeal reflects the EPA
gave no justification
for the reversal ofits
interpretation of Section 39.2(1).
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
responseto requests to
admit no.
17, exhibit 3.
Hearing transcript, page
35-
39,
46.
Attempts by SCLI
to
determine the justification for the reversal of the EPA’s
statutory
interpretation,were objected to bythe EPA
and Intervenor. Hearing transcript, pages 21-24,49-51.
This appeal timely followed.
Petition for review filed January 7,
2004.
5
The
EPA
admits
before
issuing
the December 5,
2003
permit
denial
letter
to
SCLI, it
consistently interpreted Section 39.2(1) ofthe Act such that a local siting approval does not expire,
except where the applicant fails to submit an application fordevelopment permit to the EPA
within
three years.
The EPA
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, oftwo
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(1)
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 REVEW
The standard of review in this cause is whether issuance ofthe permit sought by SCLI will
cause a violation of the Environmental Protection (Act),
specifically 415 ILCS
539.2(f).
There is
no allegation that issuance ofa permit will cause a violation of the Board’s applicable regulations.
EPA’
s responseto requestto admit no.
17, hearingexhibit
3.
This standardofreview is articulated
in 415 ILCS 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, insteadof
the manifest weight ofthe
evidence.
6
LAW
In
interpreting a statute,
the words
chosen by
the legislature are
to
be
given their plain
meaning.
The intent ofthe legislature should be ascertained primarily from a consideration ofthe
legislative language itself, which affords the best means ofits
determination.
No rule of statutory
construction authorizes a tribunal to declare the legislature did not mean what the plain languageof
the statute imports.
Envirite Corporationv. Illinois EPA, 158111. 2d 210, 632 N.E. 2d 1035 (Il1.S.Ct.
1994).
It is a basic rule ofstatutoryconstruction that the inclusion ofone limitationis the exclusion
ofothers.
Inclusio unius est exclusio alterius.
Browning Ferris Industries. Inc. v. PCB, 127 I11.App.
3d 509,468 N.E.2d 1016 (Third Dis.
1984). Rochelle Disposal Service, Inc. v. IPCB, 266 Ill. App.
3d
192,
639 N.E.2d 988
(2nd
Dis.1994).
Though an
agency’s interpretation of its own regulations or rules
is often entitled to great
weight, an agency’s
statutory interpretations are reviewed de 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. Illinois Health Facilities PlanningBoard, 324 Ill.App. 3d 451,
753 N.B.2d 1104 (1St Dis.
2001).
The rule 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
interpretation by the administrative body is long continued and consistent so that thelegislaturemay
be regarded as having concurred in it.
Moyv. Dept. ofRegistration and Education,
85 Ill.App.3d
27, 406 N.E.2d
191
(1St Dis.
1980).
Iii. Attorney General Opinion, 99-008, July 9,
1999.
7
An agency’s statutory interpretation that conflicts with the agency’s earlier interpretation is
entitled to considerably less deferencethan a statutory interpretation consistently heldby the agency.
Mobile Oil v. EPA, 871
F.2d 149 (DC Cir.1989).
General Electric Co. v. Gilbert, 429 US 125,
142
(1976).
NLRB v. Food and 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).
It is ofgreat concern to the Illinois courts and this Board when the EPA
acts inconsistently.
Chemetco v.
Illinois
Pollution
Control
Board,
140 Iii.
App.
3d
283,
488
N.E. 2d
639,
643
(5th
Dis.1986).
Alton Packaging, 146111. App. 3d 1090,497 N.E. 2d 864,
866
(5th
Dis., 1986).
Owens
Oil
Company v. Illinois EPA, PCB 98-32 (December
18,
1997, page 2.)
BASIC RULES OF
STATUTORY CONSTRUCTION
REQUIRE THE EPA
TO ISSUE SCLI’S PERMIT
The
statutory
language
at
issue
is
plain
and
unambiguous.
Basic
rules
of
statutory
construction support issuance ofSCLI’s permit.
415 ILCS 5/39.2(f) provides:
A local siting approval granted under this section shall expire at the
end of two 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
eventthat thelocal sitingdecision hasbeen appealed, such expiration
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.
8
Under the plain meaning of the language chosen by the legislature in 39.2(1) of the Act, a
local
siting
approval issued by the
County Board does not
expire where
the EPA
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 sanitary landfill within three years ofthe
November21, 1996 local sitingapproval.
See hearing exhibit 6, the March 12, 2003 letterfrom the
Permit Section Manager.
Theprimaryrule ofstatutory interpretation is to follow theplain language
ofthe Act.
Envirite Corporation v. Illinois EPA,
158 Iii. 2d 210, 632 N.E.2~11035 (I11.S.Ct.
1994).
This Board should follow the plain meaningofthe language ofthe Act.
To hold local siting
expires after an unsuccessful appealofa permit denial would readinto the Act additional language
not chosen bythe legislaturein section 39.2(1).
To hold an application fordevelopmentpermit must
be continuously pending and on file with the EPA
to preserve the vitality of local siting approval,
similarly requires the reading into 39.2(f) oflanguage not writtenby the legislature.
Such strained
interpretations ofthe Act fail to follow the plain meaning ofthe 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
applyto theEPA
for developmentpermit within threeyears ofthe date upon which local sitingwas
granted.
The legislature further specifies the three-yearperiod to 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
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.
PCB, 127 111.App.3d 509,468 N.E.2d 1016 (Third Dis.
1984).
Rochelle Disposal Service v.
PCB,
266 Ill.App.3d
192, 639 N.E.2d 988 (2~
Dis.
1994).
Intervenor apparently
conceedes
Section
39.2(1) 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 Boardneedlook no further thantheplain languageoftheAct, Section~3
9.2(1),to resolve
this dispute.
EPA
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 the Act.
EPA
is furthercreating a newrequirementan applicantcannot have
a
gap
or break in
continuity among
its
applications for incremental
development of its
locally
approved expansions.
THE SUDDEN REVERSAI~
OF INTERPRETATION
OF THE
ACT BY THE EPA
IS
ITSELF SUSPECT AND NOT ENTITLED TO DEFERENCE.
The Fifth District Appellate Court, thetribunal that willhear any reviewoftheBoard’s ruling
in the instant cause, repeatedlystressed to thePollution Control Board theimportance ofconsistency
in interpreting
the Act.
“Ofgreat concern to
us is the fact that the Pollution Control Board is not
consistent in its reading oftheAct.”
Chemetco v. Illinois Pollution ControlBoard,
140111. App. 3d
283,488 N.E. 2d 639,
643
(5th
Dis.1986). “Wenoteadministrativebodies arebound byprior custom
and practice in interpreting their rules and may not arbitrarily disregard
them.”
Alton Packaging
Corporation v. Pollution Control Board and EPA,
146 Iii. App.
3d 1090, 497 N.E. 2d
864, 866
(5th
10
Dis.
1986).
The EPA
and this
Board are bound by prior custom and practice, and the need for
consistency in theirinterpretation oftheAct, because“Administrative proceedings are governed by
the fundamentalprincipals and requirements ofdue process oflaw.”
Alton Packaging,
146 Ill. App.
3d
1090,497 N.E. 2d 864, 866
(5th
Dis., 1986). Thus, grantingthedesired permit in the instant cause
to
SCLI would not cause a violation ofthe EnvironmentalProtection Act, because the EPA
should
read Section 39.2 (f) ofthe Act consistently, as it had for ten years before the instant application.
Illinois
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. DepartmentofRegistration and Education 85 Iii. App. 3d 27,406 N.E. 2d
191
(1St
Dis.1980).
The rule is
that the interpretation of a statute by
an administrative
body charged with applying the statute
should be given great 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 the Attorney 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 the instant cause that is entitled to deference by any
subsequent court of review, is the long-standing, consistent interpretation by the IEPA of Section
11
3 9.2(1) that local siting approvals do not
expire so long as application for development permit is
made within threeyears.
As both theIllinois appellate courts and the Office ofthe Illinois Attorney
General state, a new interpretation ofthe Act, inconsistent with the previous interpretations by the
EPA,
are not
entitled
to
such deference, because the legislature can not
be regarded as having
concurred.
The EPA’s
consistent interpretation of Section 39.2(1) Act for several years before
December 5,
2003, should be undisputed.
For
about ten years, the EPA
consistently interpreted
Section 39.2(f) ofthe Act to hold that a local siting approval does not expire so long as the EPA
received a development permit
application with
three
years
of the
local
siting.
See
the EPA’s
amended responses to requests to admit number 4,
15,
18, hearing exhibit 4.
See the March 12, 2003
correspondence
signed by Joyce Munie, Manager, Permit Section, Bureau ofLand, EPA,
hearing
exhibit 6.
See further the unchallengedtestimony ofMs. Munie, as Permit Section Manager, at the
March 4,
2004 hearing, transcript pages
35-39,
5
1-52.
In that same testimony, the Permit Section
Managerfurther admitted SCLI received no warning ofthe reversal by the EPA
ofits interpretation
of 39.2(f), before the December
5,
2003
permit
denial
at
issue.
Thus,
the EPA
has repeatedly
admitted ofrecord the suddenreversal ofits long-standing interpretation ofSection
3 9.2(f), and that
the reversal occurred without
warning
or explanation
from
the EPA
itself
to
SCL.
Such
an
unexplainedreversal ofa longstanding statutory interpretation is not entitled to deference on review.
Like the appellate courts, this Board recognizes the importance ofconsistencyin the actions
ofthe EPA.
“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 newmatter are different from those
upon
the prior practice was based, or determination that the prior practice was in error (citations
omitted).
No
such
cause is
present here.”
Owens
Oil
Company v.
Illinois
EPA,
PCB
98-32
12
(December
18,
1997,
page 2.)
In
the
instant
cause, the
EPA
departed
from
a long
standing
interpretationofthe statute without any determination ofrecord that the prior practicewas an error,
without any change in the statute,
and without any determination that the facts in the instant cause
are different.
The
EPA
can not
now retroactively justify a change in its
longstanding statutory
interpretation.
The Act requires that the reasons for the permit
denial be given at the time ofthe
denial.
Such reasons can not be supplemented now.
415 ILCS
5/39(a).
It is true courts will give greater weight to ~nagency’s construction ofits ownpromulgated
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 have beeninconsistent. Dean Foods
Co.
v. Pollution Control Board 143
Ill. App.
3d 322,
492 N.E. 2d 1344,
1349
(2~~d
Dis.1986).
ALL PARTES
TO THE INSTANT APPEAL CONCEDED, AND THIS BOARD
RECOGNIZED, THE NOVEMBER 21,
1996 LOCAL SITING HAS NOT EXPiRED.
Ofgreat significance is the EPA’s
judicial admission before this Board that another local
siting application for SCLI was unnecessary to
allow an expansion permit to issue to SCLI.
Thus,
the EPA
admitted ofrecordbefore this Board that theNovember21, 1996 local sitingapproval did
not expire.
See the Opinion ofthis Board in PCB 02-108, May 16, 2002, page 19.
That Opinion was
attachedto and filed with theoriginal petition forreview in this instant cause. Intervenorrecognized
the significance ofthis judicial admission by the IEPA, as stated by this Board in PCB 02-108, on
May 16, 2002, so Intervenor movedforthis Board to reconsiderits decisionas to that language.
This
Board made the appropriate decision and denied the Intervenor’s motion to reconsider on July
11,
2002.
Neither Intervenor, County ofSaline, nor the EPA
appealed this Board’s recognition ofthe
13
JEPA’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
morevulnerable to challenge.
TheEPA
should not be allowedto withdraw its admissionsofrecord
before this Board,
and force SCLI
to attempt or undergo another local siting approval process.
THE 1996 LOCALSITING APPROVAL COULD NOT HAVE EXPIRED, BECAUSE THE EPA
PERMITTED FOR DEVELOPMENT AND OPERATION A PORTION OF THAT LOCALLY
APPROVED EXPANSION.
After the 1996 local siting approval, the EPA
issued a development and operation permit
for vertical expansion of SCLI’ s landfill, dated December 31,
1996, EPA
Log Number 1996-147.
Said 1996permit is attachedto theinitial petition forreview filedby SCLI in theinstant appeal.
The
EPA
admits permit 1996-147 authorizedthe verticalexpansion ofSCLI Landfill,including vertical
expansion into air space approved at the November 21,
1996
local siting approval.
See EPA’s
responses to request to admit number 8 and 9, hearing exhibit 3.
Therefore, the November21, 1996
local siting approval couldnot haveexpired due to alleged failure to timely applyfor a development
permit under 415 IILCS
5/39.2(f)-the
expansion approved at local siting was in fact partlypermitted
by EPA
for development and operation,
and was in fact partly filled with waste pursuant to that
permit.
Intervenor or the EPA
might now arguetheDecember 31, 1996 permit, 1996-147, pertained
to
a previous local siting approval, before the November 21,
1996 siting approval at issue.
This
argument was implicitlyrejected by this Board in PCB 02-108, in its May 16,2002 opinion, page 17.
This Board heldthat theNovember 21, 1996 a local siting approval, thevery siting approval atissue
in the instant cause, superseded all previous local siting approvals.
In PCB 02-108, SCLI argued to
14
this Board the County granted before
1996 local
siting approval for a landfill expansion with no
interior separation berm.
This Board heldthe November21, 1996 local siting approval “necessarily
amended the County Board’s” earlier siting approval.
Neither Intervenor, CountyofSaline, northe
JEPA, appealed or challenged that ruling by this Board in PCB 02-108.
Thus, this Board showed
rule theDecember 31, 1996 developmentpermit pertainsto and is based on the local sitingapproval
granted November 21,
1996, because the
1996 local
siting approval necessarily amends any prior
local siting approval.
Therefore, by law theDecember 31, 1996 permit constitutes a timely permit,
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(1) ofthe Act, that December 31,
1996
expansionpermit,
1996-147-LFM, removesthe subjectLandfill from arguments theNovember 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 filed with the EPA
concerning the new airspace approved at the 1996 local siting, and
at least one permit for development and operationofpart oftheproposed expansionissued, 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 forIntervenor
misstated SCLI’ spositionby mischaracterizing the instant appeal as based on equitable estoppel or
detrimental reliance principals.
Transcript, page 40.
SCLI
is not
arguing equitable estoppel or
detrimental reliance, nor are theprincipals of detrimental reliance and equitable estoppel pleaded in
SCLI’s petition forreview.
Further, there is no
allegation by SCLI that representatives ofthe EPA
15
knowingly made untrue representations,
one ofthe 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 EPA’s
long-standing
and
consistent interpretation of 39.2(1) of the Act, results
in an incorrect statutory interpretation, and
denies SCLI fairness.
Intervenor or the EPA
may cite this Board’s Opinion in Village of Fox River
Grove
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.) TheEPA’
s previous misinterpretations
ofthis Board’s regulations are therefore not relevant to the instant appeal.
SCLI submits theruling
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.
Illinois
EPA,
PCB
97-156, is
inapplicable to the instant appeal becausethe instant appeal involves solely construction ofthe Act,
while the Village in Fox River Grove sought an interpretation ofthis Board’s ownregulation.
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 suchdeferenceby an Appellate Court.
Unliketheinstant cause, the sole issue before this
Board in Village ofFoxRiverGrove v. Illinois EPA, PCB 97-156, was “whether the 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 EPA’
s
interpretation of the Act
was
consistent
for about ten years,
ample
time to
demonstrate the legislature’s
concurrence with
the
16
IIEPA’s statutory interpretation.
In the instant
cause, unlike Fox River
Grove, the EPA
has not
corrected a misinterpretation ofthis Board’s own regulations.
•
Unlike the facts in Village ofFox River Grove, this
Board has already acknowledged and
acquiesced in the EPA’s
previous interpretation of Section 39.2(f) ofthe Act.
In PCB 02-108, on
May16, 2002, page 19, this Board recognized all parties agreedSCLI couldapplyfora development
permit to expand SCLI’s landfill without seeking another local
siting approval.
For this Board to
hold otherwisenowwould be inconsistent with PCB 02-108, and therefore distinguishable from the
record presented to the Appellate Court in Fox River Grove.
The Jntervenor equates a permit denial with a failure to file a permit application withinthree
years oflocal siting approval.
415 ILCS 5.39.2(f) contains no such language.
In fact, SCLI timely
filed a complete developmental permit application in
1999.
The permit denial stated no issues of
completeness or timeliness, and theAgencyis requiredby law to detailthe reasonsforpermit denial.
415 JLCS
5139(a).
Again,
SCLI met the statutory time requirements to preserve thevalidity ofits
•
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.
SCLI zealously obtained expedited reviewofits permit application
by the Board in PCB 02-108.
Further, SCLI modified theproposed design in its permit application
so as to reduce the facility’s impact on the nine siting criteria of 415 ILCS
5/39.2(a).
PCB 02-108,
decided May
16, 2002.
Waste Management ofIllinois
v. EPA,
PCB No.
94-153, (July 21, 1994).
The
facts ofthe pending permit
application
do not support
the concerns expressed by Intervenor
about
bankingof local
siting approvals.
17
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. EPA,
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
not have to
return to get new
local siting approval forevery single design changewithout regard to
the import ofthe change.
Just as the Board will not allow the local
sitingprocess
to be effectively bypassed, the Board will not send a
permit applicant back to the restart
a process started roughly six
years ago withoutjusqjication groundedin 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 loop ofsiting, followed by permitting, followed by siting,
ad
nauseam.
SCLI
submits
basic rules of statutory construction,
consistency with
the EPA’s
historic
interpretation ofthe Act, and consistencywith this Board’s own Opinion in Saline County Landfill
v. EPA,
PCB 02-108, require a development permit to
issue to SCLI.
SCLI prays this Board reverse and remandthe December
5,
2003 permit denial back to the
IEPA, with instructions to issue a permit to develop the requested expansion, to SCLI instanter, in
18
IIEPA log no. 03-113.
SCLI requests such additional and furtherreliefas this Board deems fair,~just,
and
equitable.
~
Brian Konzen
Lueders, Robertson & Konzen
LC
1939Delmar
P.O. Box
735
Granite City, Illinois
62040
•
Phone: (618) 876-8500
ARDCNo.: 06187626
45389
19
RECE~VED
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARDCLERK’S OFFICE
MAR
23
2004
SALINE
COUNTY
LANDFILL,
INC.,
)
)
PETITIONER,
)
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
STATE OF ILLINOIS
• Pollution Control
Board
NOTICE OF FILING
John Kim, Esq.
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois 62794-9276
Steve Hedinger
2601
S. Fifth Street
Springfield, Illinois 62703
Rod Wolf
Saline County State’s Attorney
10
E.
Poplar
Harrisburg, Illinois 62946
Please takenotice that Ihave todayfiledwith the Clerk ofthe Pollution Control Board, Brief
of Petitioner,
Saline County Landfill,
Inc.,
and certificate of service,
on behalf of Saline County
Landfill, Inc., via fax transmission and overnight mailing.
Brian E. Konzen,
~.
Lueders,
Robertson, Konzen LLC
1939 Delmar, P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.:
06187626
45117
•
RECEWED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
MAR
23
2004
SALINECOUNTYLANDFILL, INC.,
)
PETITIONER,
)
)
v.
)
No.
PCB
04-117
(PERMIT
APPEAL)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
CERTIFICATE OF SERVICE
I, theundersigned, certify that I have served the attached Brief ofPetitioner, Saline County
Landfill, Inc., viafax transmission and overnight mail upon the followingpersons on this 22nd day
ofMarch, 2004, per the Hearing Officer’s
Order ofMarch
4,
2004
John Kim, Esq.
•
Fax: 217-782-9807
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, Illinois62794-9276
Carol Sudman,
Esq.
Fax: 217-524-8508
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Ave. East
P0 Box 19274
Springfield,
Illinois 62794-9274
Rod Wolf
Fax: 618-253-7160
Saline County State’s Attorney
10 E. Poplar
Harrisburg, Illinois 62946
Steve Hedinger
Fax:
217-523-4366
2601
S. Fifth Street
Springfield, Illinois
62703
7
Brian Konzen
45117
