LAW OFFICES
LUEDERS, ROBERTSON & KONZEN LLC
1939 DELMAR AVENUE
P. 0. BOX 735
GRANITE CITY, ILLINOIS
ZIP CODE 62040-0735
618-876-8500
FAX 616-876-4534
RECE WED
CLERK’S OI~FICE
MAR 292004
STATE OF ILLINO IS
Pollution Control Board
rrobertson@Irk~awcorn
Ikonzen@lrklaw.com
etobertson@lrklaw.com
bkonzen@trklaw.com
Ismith©Irklaw,con,
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
March 26, 2004
Dear Ms. Gunn,
Re:
Saline County Landfill, Inc. v. IEPA
PCB 04-117
Enclosed please find original and ten copies ofBrief of Petitioner, proof of service, and
notice offiling. A self-addressed stamped envelope is enclosed as well.
bklrh
Enclosure
cc:
Service List
45117
Very truly yours,
WESLEY LUEDERS
-
1896-1957
RANDALL ROBERTSON
LEO I-I. KONZEN
ERIC ROBERTSON
BRIAN E. KONZEN
LAUREN K. SMITH
RECE~VE~
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR 292004
SWNE COUNTY LANDFILL, INC.,
)
PETITIONER,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENT.
)
)
)
)
No.
PCB 04-117
)
(PERMIT APPEAL)
)
)
)
)
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 5. Fifth Street
Springfield, Illinois 62703
Rod Wolf
Saline County State’s Attorney
10 B. Poplar
Harrisburg, Illinois 62946
Please take notice that I have today filed with the Clerk of the Pollution Control Board,
Motion to file Corrected Brief ofPetitioner, Saline County Landfill, Inc., and certificate ofservice,
on behalf ofSaline County Landfill, Inc.
Brian E. Konzen, ~‘sq./)
Lueders, Robertson, Kon~enLLC
1939 Delmar, P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.: 06187626
45117
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RI(~
OFFICE
SALINE COUNTY LANDFILL, INC.,
)
MAR
292004
PETITIONER,
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
CERTIFICATE OF SERVICE
I,
the undersigned, certify that I have served the attachedMotion to file a Corrected Brief of
Petitioner, Saline County Landfill, Inc., upon the followingpersons on this
26th
day ofMarch, 2004.
John Kim, Esq.
Division of Legal 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 Street
Springfield, Illinois 62703
Brian Konzen
/
öíi
45117
THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
E C E
OFFICE
~V E 0
SALINE
COUNTY LANDFILL, INC.,
)
MAR 292004
)
STATE OF ILLINOIS
PETITIONER,
)
Pollution Control Board
V.
)
)
No.
PCB 04-117
)
(PERMIT
APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
MOTIONTO FILE A CORRECTED BRIEF TO THE MARCH 22. 2004 BRIEF OF
PETITIONER, SALiNE COUNTY LANDFILL, INC.
Saline County Landfill, Inc., by their attorneys, Lueders, Robertson & Konzen, moves to
correct typographical errors in the March 22, 2004 brief ofPetitioner Saline County Landfill, Inc.
Attached to this motion is the errata sheet and the corrected brief of petitioner, Saline County
Landfill, Inc. None ofthe changes contained in the corrected brief are substantive, as reflected in
the errata sheet.
Saline County Landfill, Inc.
Brian Konzen
Lueders, Robertson & Koazen
P.O. Box 735
Granite City, IL 62040
(618) 876-8500
45455
cEO
THE ILLINOIS POLLUTION CONTROL BOARD
STATE
MAROF
29ILLiNOIS
2004
SALINE
COUNTY LANDFILL, INC.,
)
POII~ti~~Control Board
)
PETITIONER,
)
)
v.
)
No.
PCB 04-117
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
ERRATA TO MARCH 22, 2004 BRIEF OF PETITIONER,
SALINE COUNTY LANDFILL, INC.
COMES NOW, Saline CountyLandfill, Inc., by its attorneys, Lueders,Robertson & Konzen,
and identifies the following errata to the briefofpetitioner, Saline County Landfill, Inc.:
1.
On the fourth page, in the quote at the bottom of the page, in the ninth line ofsaid
quote, the words “and” and “the” should be reversed.
2.
On the sixth page, in the first full paragraph, in the fourth line ofsaid paragraph, the
word “for” should be deleted.
3.
On the sixth page, in the first full paragraph, in the sixth line down, the comma
behind “October” should be moved behind “1999.”
4.
Onthe sixthpage, inthethirdfullparagraph, “415 ILCS 539.2(f)” shouldbe deleted
and “415 ILCS 5/39.2(f)” inserted in its place.
5.
On the tenth page, in the first full paragraph, in the third line down, the word
“spupra” should be deleted and the word “supra” inserted in its place.
6.
On the tenth page, in the second full paragraph, in the third line down, the word “the”
should be inserted in front ofthe word “Act.”
7.
On the twelfth page, in the second line from the bottom ofthe page, the word
“which” should be inserted afterthe word “upon.”
8.
On the fifteenth page, in the fourth line down, the word “showed” should be deleted
and the word “should” inserted in its place.
9.
On the fifteenth page, in the ninth line down, the word “filled” should be deleted
and the word “filed” inserted in its place.
10.
On the eighteenthpage, in paragraph two ofthe first quote, in the sixth line down,
the word “the” should be deleted.
45443
RECE~VEDCLERK’S
OFFICE
BEFORE
THE ILLINOIS
POLLUTION CONTROL
BOARD
MAR 292004
SALINE COUNTY
LANDFILL, INC.,
)
PollutionSTATE
OFControlILLINOISBoard
PETITIONER,
)
)
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(f) ofthe Illinois Environmental Protection Act. 415 ILCS 5/39.2(f).
OnNovember 21, 1996, the Saline CountyBoard granted local siting approvalto aproposed
expansion ofthe sanitary landfill owned and operated by Saline County Landfill, Inc. (SCLI). See
IEPA’s response to requests to admit, no. 9, hearing exhibit 3. On December 31, 1996, the Illinois
Environmental Agency (IEPA) issued a permit forthe development and operation ofan expansion
ofthe Saline County Landfill. Thatpermitted expansion comprised a portion ofthe same air space
that the Saline County Board had grantedlocal siting approval to November21. See IEPA’ s response
to request to admit no.9, hearing exhibit 3. This December 31, 1996 permit, no. l996-147-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 ofthe larger expansion approved at the November 21, 1996 local siting
hearing. That expansion air space was then partiallyfilled withpermitte4 solid waste. A copy ofthat
complete permit 1996-147-LFM is attachedto SCLI’s petition forreview.
Less than three years from the date oflocal 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’s proposed sanitarylandfill. IEPA 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, the application for
development permit denied by the IEPA on January 4, 2002, proposed a landfill with no interior
separation berm between two sanitarylandfill 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 TEPA, in
PCB 02-108, followed. On May 16, 2002, this Board affirmed the IEPA’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 has no bearing on the Board’s decision today, and
the Board makes no ruling on it,
the parties do not dispute that SCLI
can avoid returning for siting if it submits an amended permit
application, proposing a wider interior separation berm, 100 feet
wide instead of50.
PCB 02-108, May 16, 2002 Opinion, page 19 (emphasis added).
The IEPAdid not appeal or otherwise contestthis determination by the Board, 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:
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 ofthe law, but the
Board cannot misstate the law bymerely observing, as it did, what the
parties have not disputed...The challenged language plainly referred
to SCLI submitting a
different
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, appealedthe Board’s decisions in PCB 02-
108.
While the appeal in cause PCB 02-108 was pending before this 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.
2001-362, another application for a permit to expand its sanitary landfill. In January or February
of2003, the permit section manager, Bureau ofLand, 1EPA, contacted SCLI’ s representatives and
requestedthey withdraw that application fordevelopmentpermit. Consistent with the positiontaken
by the IEPA 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 JEPA’s interpretation ofsec. 39.2(f) ofthe Environmental Protection Act (Act), 415 ILCS
5/39.2(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 have to be denied ifthey did not withdraw the application for expansion from the application
forrenewal permit. SCLI immediately withdrew the expansion application from its renewalpermit
application in IEPAlog number 2001-362, on February 7, 2003. See IBPA’s amended responses to
3
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 ofan expanded landfill. PCB 02-108, May 16,
2002, page 19, and July 11, 2002. SCLI accordingly filed within two months ofFebruary 7, 2003
an application for development permit ofits sanitary landfill, this time proposing a 100 foot wide
interior separation berm, IEPA log number 03-113. See IEPA’ s response to request to admit number
10. Hearing exhibit 3. The IEPA admits the application for developmental permit in IEPA log no.
03-113 is consistent with the design submitted to the County for local siting approval in 1996. The
application for developmental permit in IEPA log no. 03-113 is consistent with the language 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 separation 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 advised the JEPA that it represented the Intervenor, the County ofSaline. 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 ofbeing grantedonly if 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. 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 and the 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.
Hearing exhibit 6. This March 12, 2003 letter was consistent with the statements madeby the Permit
Section Managerto the representatives ofSCLI in January orFebruary of2003, and was a document
accessible to the public. Hearingtranscript pages 35-37, 61,
52.
See JEPA’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 Manager testified a developmentpermit for SCLI’s proposed expansion
in IEPA log no. 03-113 was drafted, prepared, and unanimously recommended for the Section
Manager’s signature,by all reviewers and applicable staff at the IEPA. Hearing transcript pages 46-
48.
On December
5,
2003, the IEPA reversedwithout warning its repeatedly-statedinterpretation
ofSection 39.2(f) ofthe Act, and denied SCLI’s application forthe developmentpermit in IEPAlog
no. 03-113. The sole stated reason in the December
5,
2003 permit denial letter, was that SCLI’s
local siting approval expired. The record in the instant appeal reflects the IEPA gave nojustification
forthe reversal ofits interpretation ofSection 39.2(f). See IEPA’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 1EPA’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 of the IEPA’s statutory
interpretation, were objected to by the IEPA and Intervenor. Hearing transcript, pages 21-24,
49-51.
This appeal timely followed. Petition for review filed January 7, 2004.
5
The IEPA admits before issuing the December
5,
2003 permit denial letter to SCLI, it
consistently interpreted Section 39.2(f) ofthe Act such that a local siting approval does not expire,
except where the applicantfails to submit an application for developmentpermit-to the IEPAwithin
threeyears. The IEPA admits it consistently so interpreted Section 39.2(f) ofthe Act since at least
1994. Exhibit 4, no.s 4, 5, 18. Hearing transcript, page
52, 35,
39. The IBPA admits SCLI has had
continuously pending since October 1999, applications forpermit to expand its Landfill, except for
two periods, oftwo weeks and two months respectively. JEPA responseto 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 IEPA, 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 of the permit sought by SCLI will
cause a violation ofthe Environmental Protection (Act), specifically 415 ILCS
5/39.2(f).
There is
no allegation that issuance ofa permit will cause a violation ofthe Board’s applicable regulations.
IEPA’ s response to request to admit no. 17, hearing exhibit 3. This standard ofreview 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 of its determination. No rule ofstatutory
construction authorizes a tribunal to declare the legislature did not mean what the plain language of
the statute imports. Envirite Corporationv. Illinois EPA, 158 Ill. 2d 210,632 N.E. 2d 1035 (IlI.S.Ct.
1994).
It is a basic rule ofstatutory construction that the inclusion ofone limitation is the exclusion
ofothers.
Inclusio unius est exclusio alterius.
Browning FerrisIndustries, Inc. v. PCB, 127 I1l.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 ofits 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 HealthFacilities Planning Board, 324 Ill.App, 3d 451, 753 N.E.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 administrativebody is long continued and consistent so that the legislaturemay
be regarded as having concurred in it. Moy v. Dept. ofRegistration and Education, 85 l1l.App.3d
27, 406 N.E.2d 191 (1St Dis. 1980). 111. 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 considerablyless deference than a statutoryinterpretatiori:consistently held bythe 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 concernto the Illinois courts and this Board when the IBPA acts inconsistently.
Chemetco v. Illinois Pollution Control Board, 140 Ill. App. 3d 283, 488 N.E. 2d 639, 643
(5th
Dis. 1986). Alton Packaging, 146 Ill. App. 3d 1090,497 N.E. 2d 864, 866 (5th Dis., 1986). Owens
Oil Companyv. 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 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
event that the local 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 ofthe language chosen by the legislature in 3 9.2(f) ofthe Act, a
local siting approval issued by the County Board does not expire where the IEPA 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
November 21, 1996 local siting approval. See hearing exhibit 6, the March 12, 2003 letter from the
Permit Section Manager. The primaryrule ofstatutory interpretationis to follow the plain language
ofthe Act. Envirite Corporation v. Illinois EPA, 158 Ill. 2d 210, 632 N.E.2d 1035 (I1l.S.Ct. 1994).
This Board should follow the plain meaning ofthe language 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 for developmentpermit must
be continuously pending and on file with the JEPA to preserve the vitality oflocal siting approval,
similarly requires the reading into 39.2(f) oflanguage not writtenby the legislature. Such strained
interpretations of the Act fail to follow the plain meaning ofthe language in the Act.
Where the legislature carefully articulates in the plain language ofthe 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 JEPA fordevelopment permit within three years ofthe date upon which local siting was
granted. The legislature further specifiesthe three-year period 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 the Act. 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 Disposal Service v. IPCB,
266 Ill.App.3d 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, supra.
This Board need look no further than the plain language ofthe Act, Section 39.2(f), to resolve
this dispute. IEPA is creating a new statute of limitations on the validity oflocal sitings not found
in the Act, and a new requirement the applicant must have a continuous, ongoing permit
development application, also not in the Act. IEPA is further creating a new requirement an
applicant cannot have a gap or break in continuity among its applications for incremental
development ofits locally approved expansions.
THE SUDDEN REVERSAL OF INTERPRETATION OF THE
ACT BY THE JEPA IS ITSELF SUSPECT AND NOT ENTITLED TO DEFERENCE.
The Fifth District Appellate Court, the tribunal thatwill hear anyreview ofthe Board’sruling
in the instant cause, repeatedlystressedto the Pollution Control Board the importance 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 Pollution Control Board, 140 Ill. App. 3d
283,488 N.E. 2d 639,643 (sth Dis. 1986). “Wenote administrative bodies are bound by priorcustom
and practice in interpreting their rules and may not arbitrarily disregard them.” Alton Packaging
Corporation v. Pollution Control Board and IEPA, 146 Ill. App. 3d 1090, 497 N.E. 2d 864, 866 (Sth
10
Dis. 1986). The EPA and this Board are bound by prior custom and practice, and the need for
consistency in theirinterpretation ofthe Act, because “Administrative proceedings are governed by
the fundamentalprincipals and requirements ofdue processoflaw.” Alton Packaging, 146 Ill. App.
3d 1090,497 N.E. 2d 864, 866 (Sth Dis., 1986). Thus, granting the desired permit in the instant cause
to SCLI would not cause a violation ofthe Environmental Protection 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 ofan administrative agency charged with applying the statute.
Moy v. DepartmentofRegistrationand Education 85111. App. 3d 27,406 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 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 ofthe 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 statutoryinterpretation 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
39.2(f) that local siting approvals do not expire so long as application for development permit is
madewithin three years. As both the Illinois appellate courts and the Office oftheIiinois 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(f) Act forseveral 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 IEPA
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 unchallenged testimony 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
Manager further admitted SCLI received no warning ofthe reversalby 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 SCLI. Such an
unexplained reversal ofa longstanding statutory interpretationisnot-entitled to deference on review.
Like the appellate courts, this Board recognizes the importance ofconsistency in 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 new matter are different from those
upon which the prior practice was based, or determination that the prior practice was in error
(citations omitted). No such cause is presenthere.” Owens Oil Company v. Illinois EPA, PCB 98-
12
32 (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 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 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, or wherethis Board’sprior interpretations have been 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 THE INSTANT APPEAL CONCEDED, AND THIS BOARD
RECOGNIZED, THE NOVEMBER 21, 1996 LOCAL SITING HAS NOT EXPIRED.
Of great 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 ofrecord before this Board that theNovember 21, 1996 local siting approval did
not expire. See the Opinion ofthis Board in PCB 02-108, May 16,2002, page 19. That Opinionwas
attachedto and filedwith the originalpetitionfor review in this instant cause. Intervenorrecognized
the significance ofthis judicial admission by the EPA, as stated by this Board in PCB 02-108, on
May 16, 2002, so Intervenormoved forthis Board to reconsiderits decisionasto that language. This
Board made the appropriate decision and denied the Intervenor’s motion to reconsider on July 11,
2002. Neither Jntervenor, County ofSaline, nor the EPA appealed this Board’s recognition ofthe
13
EPA’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
positionby the EPA concerning the continuing validityofthe 1996 local siting approval, is all the
more vulnerable to challenge. The EPA should not be allowedto withdraw its admissions ofr.ecQrd
before this Board, and force SCLI to attempt or undergo another local siting approval process.
THE 1996 LOCAL SITINGAPPROVAL 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 ofSCLI’s landfill, dated December 31, 1996, EPA Log Number 1996-147.
Said 1996 permit is attached to the initial petition forreview filedby SCLI in the instant appeal. The
EPA admits permit 1996-147 authorized the vertical expansion 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 November 21, 1996
local siting approval could not have expired due to alleged failure to timely apply for a development
permit under 415 ILCS 5/39.2(f)-the expansion approved at local siting was in factpartly permitted
by EPA for development and operation, and was in fact partly filled with waste pursuant to that
permit.
Intervenororthe EPA might now argue the December 31, 1996 permit, 1996-147, pertained
to a previous local siting approval, before the November 21, 1996 siting approval at issue. This
argument was implicitly rejectedby this Board in PCB 02-108,in its May 16,2002 opinion, page 17.
This Board held that the November 21, 1996 a local siting approval, the very siting approval at issue
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 held the November 21, 1996 local siting approval “necessarily
amended the County Board’ s” earlier siting approval. NeitherIntervenor, County ofSaline, northe
EPA, appealed orchallenged that ruling by this Board in PCB 02-108: Thus, this Board should rule
the December 31, 1996 development permit 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, by law the December 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 filed, the local siting cannot have expired.
Regardless ofhow this Board interprets Section 39.2(f) ofthe Act, that December 31, 1996
expansion permit, 1996-1 47-LFM,removes the subject Landfill from arguments the November21,
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 air space approvedat the 1996 local siting, and
at least one permit fordevelopmentand operation ofpart ofthe proposedexpansion issued, afterthe
1996 local siting. No further analysis orruling 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 position by 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 the principals ofdetrimental reliance and equitable estoppel pleaded in
SCLI’s petition for review. Further, there is no allegation by SCLI that representatives ofthe IEPA
15
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 EPA’ s long-standing and
consistent interpretation of 39.2(f) ofthe Act, results in an incorrect statutory interpretation, and
denies SCLI fairness.
Intervenor or the EPA may cite this Board’s Opinion in Village ofFox 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.) The EPA’ s previous misinterpretations
ofthis Board’s regulations are therefore not relevant to the instant appeal. SCLI submits the ruling
ofthis Board in Village ofFox Riverv. Illinois EPA, PCB 97-156, distinguishable and inapplicable
to the instant appeal.
The ruling ofthis Board in Village of Fox River Grove v. Illinois EPA, PCB
97-156,
is
inapplicable to the instant appeal because the instant appeal involves solely construction ofthe Act,
while the Village in Fox River Grove 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 deference by an Appellate Court. Unlike the instant cause, the sole issue beforethis
Board in Village ofFox River Grove 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 EPA’s interpretation of the Act was
consistent for about ten years, ample time to demonstrate the legislature’s concurrence with the
16
EPA’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
May 16, 2002, page 19, this Board recognized all parties agreed SCLI could apply for a 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 distinguishable from the
record presented to the Appellate Court in Fox River Grove.
The Intervenor 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 statedno issues of
completeness or timeliness, and the Agency is requiredby law to detail the reasons forpermit denial.
415 ILCS 5/39(a). Again, SCLI met the statutory time requirements to preserve the validity 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 review ofits permit application
by the Board in PCB 02-108. Further, SCLI modified the proposed design 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 of 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 for every single design change without 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 restart a process started roughly six years
ago withoutjust~tIcationgrounded in the words and policies ofthe
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, followedbypermitting, followed by siting,
ad
nauseam.
SCLI submits basic rules of statutory construction, consistency with the EPA’s historic
interpretation ofthe Act, and consistency with 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 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
EPA log no. 03-113. SCLIrequests suchadditional and further relief asthis Board deems fair,just,
and equitable.
~
,~
Brian Konzen
g~’ (
Lueders, Robertson & Konzen LLC
1939 Delmar
P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.: 06187626
45389
19
‘MRR
29
‘84 11:24 FR LUED ROBTSN
~.
KONZEN 518 876 4534 TO 13128143659
P.02/84
RECEIVEDCLERKS
OFFICE
THE
ILLINOIS POLLUTION
CONTROL
BOARD
MAR 292004
SALINE COUNTY LANDFILL, INC.,
)
PollutionSTATE OFControlILLINOISBoard
PETITIONER~,
)
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
RESPONDENT.
)
MOTION TO FILE A
CORRECTED BRIEF TO THE MARCH 22, 2004 BRIEF
OF
PB~TITIONER,SALNE COUNTY LANDFILL, INC.
Saline County Landfill, Inc., by their attorneys, Lueders, Robertson & Konzen, moves to
correct typographical errors in the March 22, 2004 brief of Petitioner Saline County Landfill, Inc.
Attached to this motion is the errata sheet and the corrected brief of petitioner, Saline County
Landfill, Inc. None ofthe changes contained in the corrected brief are substantive, as reflected in
the errata sheet.
Saline County
Leo Konzen
Lueders, Robertson & Konzeri
P.O. Box 735
Granite City, IL 62040
(618)
876-8500
45455
.MRR 29 ‘04 11:25 FR LUED ROOTSN & KONZEN 618 876 4534 TO 13128143669
P.03/04
RECEIVED
CLERK’S OFFtc~E
MAR 292004
STATE OF ILLINOIS
Pollution Control Board
THE
ILLINOIS POLLUTiON CONTROL
BOARD
SALINE COUNTY
LANDFILL, INC.,
)
)
PETJTIONER~,
)
)
v.
)
No. PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
ERRATA TO MARCH 22, 2004 BRIEF OF PETITIONER,
SALINE~OUNTYLANDFILL. INC.
COMES NOW, Saline County Landfill, Inc., by its attorneys, Lueders, Robertson & Konzen,
and identifies the following errata to the brief ofpetitioTler, Saline County Landfill, Inc.:
1.
On the fourth page, in the quote at the bottom ofthe page, in the ninth line of said
quote, the words “and” and “the” should be reversed.
2
On the sixth page, in the first full paragraph, in the fourth line ofsaid paragraph, the
word “for” should be deleted.
3.
On the sixth page, in the first full paragraph, in the sixth line down, the comma
behind “October” should be moved behind “1999.”
4.
On the sixth page,
in
the third full paragraph, “415 ILCS 539.2(f)” should be deleted
and ‘415 ELCS 5/39.2(f)” inserted in its place.
On the tenth page, in the first full paragraph, in the third line down, the word
“spupra” should be deleted and the word “supra”inserted in its place.
6.
On
the tenthpage, in the second full paragraph, in the third line down, the word “the”
MRR 29 ‘04 11:25 FR LUED RORTSN & KONZEN 518 876 4534 TO 13128143659
P.04/04
should be inserted in front of the word “Act.”
7.
On the twelflh page, in the second line from the bottom ofthe page, the word
“which” should be inserted after the word “upon”
8.
On the fifteenthpage, in the fourth line down, the word “showed” should be deleted
and the word “should” inserted in its place.
9
On the fifteenth page, in the ninth line down, the word “filled” should be deleted
arid the word “filed” inserted in its place.
10.
On the eighteenth page, in paragraph two of the first quote, in the sixth line down,
the word “th&’ should be deleted.
45443
K*
TOTRL PPGF. R~1
~
M~R29 ‘04 11:24 FR LUED ROBTSN & KONZEN 618 876 4534 TO 13128143669
P.01/04
LAWOFFICES
LUEDERS, ROBERTSON & KONZEN
LLC
19DEL.MARAV~NU~
MAR 2 ~2OO~
P.O. BOX 735
GRANITEC!TY,JLLINO~S
STATE OF ILLINOIS
COD~.
61B-~76-S53O62O4OO7~5
Pollution Control Board
FAX ~ I
W~SLE~Y
LU~D1~kG
B~&i~bY
RANDALL r~O3~F~TSON
rrobertseIr1cIaw,cor~~
LEO Fl. KONZEN
IIQnzBn~Irkl3w.Com
ERIC
ROEEFT5ON
~mbert~on@IrIdaw.com
PRIAN
E,
~ONZ5N
bkonzer1@IrkI~w.c?m
LAUREN K. 5M~Th
amKh~IrIdaw.con,
FAX
TRANSMISSION SHEET
TO:
Dorothy Gunn
312-814-3669
FROM:
Brian Konzen
DATE:
March 29, 2004
PAGES:
4 With Cover Page
MESSAGE: Per Ryan Robertson’s call to you this morning, I am enclosing Motion to File a
Corrected Brief; and Errata to March 22, 2004 Brief.
NOTICE:
The information contained in this facsimile message is legally privileged and confidential
and intended only for the use ofthe individual or entity named above. Ifthe reader ofthis message is not
the intended recipient or the agent or employee responsible for delivery ofthe message to the intended
recipient, you are herebynotified that dissemination, distribution orcopyingofthis communication is strictly
prohibited. tfyou have received this communication in error, please notify us immediately by telephorieand
return the message to us at the above address via the United States Postal Service.
