BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SALINE COUNTY LANDFILL, INC.,
PETITIONER,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENT.
No. PCB 2004-117
(PERMIT APPEAL)
NOTICE
OF
FILING AND
PROOF OF SERVICE
To:
Brian E. Konzen, Esq.
Lueders, Robertson, Konzen &
Fitzhenry
1939 Delmar, P.O. Box
735
Granite City, IL
62040
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center
Suite 11-500
Chicago, IL 60601-3218
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 South Second
Street, Suite 402
Springfield, IL
62704
John Kim
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.
Box 19276
Springfield, IL
62794-9276
PLEASE TAKE NOTICE that on thej~~day
ofApril, 2004, we sent via U.S.
Mail
delivery to the Clerk of the Pollution Control Board the original and nine copies ofthe
CLOSING BRIEF OF INTERVENOR COUNTY OF SALINE for filing
in
the above entitled
cause.
Pursuant to Hearing Officer authorization, this document was also filed on
this date by
facsimile transmission, commenced before 5:00 p.m.
The undersigned certifies that a true
and correct copy of the above-described document
was served upon each of the above-identified individuals via U.S.
Mail, by
enclosing the same
in
envelopes
properly
addressed
with
first
class
postage
affi,xed
and
by
depositing
said
envelopes in a U.S.
mailbox in Springfield, Illinois, all on thej~j~day
ofApril, 2004.
Further,
the above-described document was also
served via facsimile transmission to the above-named
parties on this date, commenced before 5:00 p.m.
By_____
~‘Steph~4’
Hedinge~
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
)
)
)
)
)
)
)
)
CLER~c’g
~
APR
C 9
20B4
STATE OF JLLINiOIS
Pollution Control board
THIS
FILING IS SUBMITFED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SALINE COUNTY LANDFILL, INC.,
)
RECEfJV~D
CLERK’S
OFFICE
PETITIONER,
)
APR 09
2004
v.
)
No. PCB 2004-117
STATE
OF ILLINOIS
)
(PERMIT
APPEAL)
PoIlut~onControl Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
)
)
COUNTY OF SALINE,
)
)
INTERVENOR.
)
CLOSING BRIEF OF INTERVENOR COUNTY
OF SALINE
NOW COMES Intervenor, COUNTY OF
SALINE, through
its undersigned attorneys,
and for its Closing Briefin this permit appeal proceeding brought by Petitioner SALINE
COUNTY LANDFILL, INC. (hereinafter “SCLI”), states as follows:
Standard ofReview
SCLI begins its
discussion of this matter by claiming that “the
standard of review in
this
cause is whether issuance of the permit sought by SCLI will cause a violation ofthe
Environmental Protection (Act) sic,
specifically 415 ILCS
5/3~2(f).”
(SCLI Brief, at 6).
This
is a gross, and apparently intentional, misstatement of the law.
Less than two years ago SCLI brought another permit appeal before this Board (PCB 02-
108), in which SCLI tried to
convince this Board to
issue a permit to a facility for which siting
approval had never been granted by the Saline County Board.
In denying SCLI’s attempt
to
bypass the local siting approval process, this Board informed SCLI of the standard of review
employed by this Board in considering a permit appeal:
“The petitioner has the burden of proof
on appeal.
See
415
ILCS
5140(a)(1)
(2000).
On appeal ‘the sole question before the Board is
whether the applicant proves that the application, as submitted to
the Illinois
Environmental
Protection
Agency, demonstrated that no violation of the Environmental
Protection
Act would
occur if this permit was granted.”
Saline County Landfill, Inc. v. Illinois Environmental
Protection
Agency, PCB 02-108, slip op. at 9 (May 16, 2002), citing Panhandle Eastern Pipe
Line Co. v. IEPA, PCB 98-102, slip op. at 10 (Jan. 21,
1999),
aff’d sub noin
Panhandle Eastern
Pipeline Co.
v. PCB and
IEPA, 314 Ill. App. 3d 296, 734 N.E.2d 18
(4t~~
Dist. 2000), quoting
Centralia Environmental Services. Inc. v.
IEPA, PCB 89-170, slip op. at 9 (Oct.
25,
1990);
Browning-Ferris Industries of Illinois, Inc. v. PCB, 179 Ill. App. 3d 598, 601-602, 534 N.E.2d
616, 619 (2d Dist. 1989); Joliet Sand
& Gravel Co.
v. PCB, 163 Ill. App. 3d
830, 833,
516
N.E.2d 955, 958
(3d Dist. 1987), citing IEPA v. PCB, 118 Ill. App. 3d 772, 455 N.E.2d 188 (1st
L
Dist. 1983).
Hence, far from the burden here being upon the Agency to
prove that issuance of the
permit would cause a violation ofthe Act, in fact the burden falls upon SCLI
to prove that
issuance ofthe permit as submitted would ~
have violated the Act.
It is
a burden SCLI has
failed to meet; presumably that explains SCLI’s baseless attempt
to convince this Board to utilize
a different standard ofreview in this case.
Facts
In November
1996 the Saline County Board
considered and
approved an
application
submitted by SCLI
to
expand its facility located near Harrisburg.
~
generally Saline County
Landfill. Inc.,
PCB 02-108, slip op. at 4-9 (May
16, 2002)).
Among other things, the approved
2.
expansion plan called for construction of an earthen berm to separate the old landfill from the
new; this berm was to be at least 50 feet wide, was to be filled with non-waste materials, and was
to house a number offeatures ancillary to the landfill operations, including groundwater
monitoring wells.
Construction of the berm would allow for the certification ofclosure of the
old landfill within five
(5)
years, whereas the new expansion was to have a lifespan ofas many
as twenty-five
(25)
years.
SCLI also represented that the berm would enhance stability of the
overall structure.
(j~).
Nearly three years after the Saline County Board
approved the plan, in November
1999
SCLI submitted to the Agency
an application for a permit to develop the facility that had been
approved by the Saline County Board.
That original application included all salient features that
had
been considered and approved by the Saline County Board, including
the berm.
(LL).
The Agency’s review identified a number of application provisions which did not or
would notcomply with the applicable regulations, and the Agency required that SCLI address
these deficiencies.
Among other things, the Agency noted that the planned 50 foot berm was not
large enough to support separate groundwater modeling for both
the old and
the new landfills.
(k).
SCLI had
a number of options to address this problem.
First, SCLI could have retained
the 50 foot berm, and modeled both the old
and new landfills asà single site.
Second, SCLI
could have expanded the width of the berm to
100 feet or more to accommodate the two
groundwater monitoring zones.
Either of these options would
have been consistent with the
siting approval, which required that the berm be a minimum of50 feet wide.
(ILL).
However, SCLI did not choose either of these options.
Instead, its revised plan, filed
with the Agency in August 2000, eliminated the berm altogether.
This revision would allow
3
SCLI to place waste where the berm’s non-waste material had been planned, would
eliminate the
separation of the old and the new landfills, and resulted in a re-engineeringof the structural
support system, as well as the groundwater monitoring system.
The old landfill’s closure date
was also impacted; rather than being closed within five
(5)
years, under the revIsed design the
otd landfill would
remain “open” until the entire
expanded facility was ready to
close.
SCLI’s
proposed revision withdrew its original proposal, and substituted the new design.
(ith).
Saline
County immediately objected to SCLI’s proposal, pointing out that removal ofthe
berm was patently inconsistent with the November 1996 siting approval. (JsL).
The Agency
carefully considered Saline County’s objection, and required that SCLI submit substantial
additional materials relating to the 1996 siting approval.
Once these materials were
submitted,
the Agency
determined that Saline County’s objection was well-taken, and offered SCLI the
opportunity
to revise its
submittal once again, this time to return
to the original design that had
been approved by the Saline County Board.
SCLI rejected this opportunity, though, and so the
Agency issued a final denial of SCLI’s application for a development permit, as required by 415
ILCS
5/39(c)
(which requires proof of siting approval prior to issuance of any such permit).
(a).
SCLI appealed, and
by its May 16, 2002 order, the Pollution Control
Board affirmed.
SCLI did not seek any further review, either through a motion for reconsideration or through
appeal to
the appellate court.
This Board’s order came 6 yearshfter Saline County had granted
the siting approval.
During the time the Agency was considering whether SCLI’s modifications were
inconsistent with the siting approval, SCLI had pending before the Agency not only that
application for a development permit, but also a routine application for renewal of the existing
landfill’s
operating permit.
That renewal application,
Log No. 2001-362, was originally
4
submitted on
September 24, 2001, but on January 24, 2002 (which was approximately three
weeks
~
the Agency denied SCLI’s development permit application), SCLI
sent a letter to the
Agency which disputed the Agency’s denial ofthe development permit application, but
purported to incorporate the entire record ofthat permit log (Log 1999-381) into the old facility’s
renewal application proceeding (Log 2001-362); according to
SCLI, the purpose of this was “to
maintain the record for 2001-362.”
By virtue ofSCLI’s action, the non-conforming redesign
was once again pending as a permit application before the Agency.
The Agency informed SCLI that it would be necessary to deny the renewal application~
(Log 2001-362), because the nOn-conforming design had already been adjudicated to
be
unacceptable, never having been approved in local siting proceedings.
Thereafter, on February
7, 2003, SCLI withdrew the request for development permit approval which it had
incorporated
into the operating permit renewal proceeding (i.e., it withdrew the 1999-381 record from 2001-
362).
At that time, therefore, SCLI had no permit application pending whatsoever with respect
to its proposed expansion.
In April 2003, SCLI submitted
the instant permit application, Log No. 2003-113, which
purports to resurrect the facility design which SCLI had abandoned earlier in its Log No.
1999-
381
submittals.
To briefly reiterate, the Log No. 1999-381 was submitted nearly three (3) years following
the Saline County Board’s November 1996 siting approval.
In August 2000, SCLI superceded
that permit request and replaced it with
a request for approval of a facility which had never
received siting approval.
The Agency denied that request on January 4, 2002, and for the
following nearly three (3) weeks no permit application was pending at all relative to the area
designated for the new facility.
On January 24, 2002, SCLI purported to incorporate (by
5
reference) the earlier submittal from Log No. 1999-361, but,
on February 7, 2003, it withdrew
that submittal as well.
Finally,
in April 2003 SCLI once again submitted an application
purporting to seek permit approval for the geographic area that was the subject matter of the
November 1996 siting approval.
Accordingly, from at least August 2000, when it superceded
the original permit application with the design that had never been approved by Saline County,
until at least April 2003, virtually no permit application of SCLI was before the Agency that had
ever been approved through the local siting process.
Saline County’s
Role in
Landfill Issues
The courts, and this Board, have long recognized that Section 39.2 of the Environmental
Protection Act, 415 ILCS
5/39.2,
represents the singular most important stage of the continuum
of siting and approving pollution control facilities such as landfills:
The;General Assembly recognized that it was important that a county board or the
governing body ofa municipality have the opportunity
to investigate and examine
the past operating history and past record of convictions and violations of an
applicant.
The importance ofsite approval was previously recognized in the case
of
Kane County Defenders, Inc. v. Pollution Control Board,
139 Iii. App. 3d 588,
593,
93 Ill. Dec.
918, 487 N.E.2d 743
(1985),
which pointed out:
“This broad
delegation of adjudicative power to the county board clearly reflects a legislative
understanding that the county board hearing, which presents the only
opportunity
for public
comment on the proposed site,
j~
fi~
most critical stage ~
iht~
landfill
~jt~approval process.”
We agree that the local site approval process is the most
critical stage of the process.
Medical Disposal Services, Inc.
v. Environmental Protection Agency, 286 Ill. App. 3d
562, 568,
677 N.E.2d 428, 432
(1St Dist. 1997) (emphasis added).
Significantly, when Saline County granted siting approval in
1996, it created no property
right in SCLI, but to the contrary only created a condition that
is required before the Agency
could issue a permit:
“Requiring renewed applications for local siting approval does not prevent
6
the transferability of an owner’s property right because siting approval is not
a property right.
See
Foster & Kleiser v. City ofChicago,
146 Iii. App. 3d 928, 934,
100
Iii. Dec. 481, 497 N.E.2d
459 (1986) (even permits are only privileges from which no vested property rights attach).
Permits in general can conceivably be assigned, but the local siting approval given pursuant to
the Act is only a condition that is required before permits can be issued.
While a permit gives
the holder specified
rights, local siting approval only gives the specific applicant the right to
apply for a permit.”
Medical Disposal Services, 286 Ill. App. 3d at
569,
677 N.E. 2d at 433.
The
Medical Disposal Services court also noted that requiring siting applicants to return for new
siting approvals is not unfair or duplicative:
“Requiring MDS
to another review by Harvey the
local siting authority
will not be needlessly duplicative because it is essential to implement the
legislative intent of providing meaningful local
approval of the siting of pollution-control
facilities.”
286 Iii. App. 3d at
569,
677 N.E.2d at 432.
The Environmental Protection Act should not be read in
a vacuum, but instead should be
considered in conjunction with other statutes that pertain
to a county’s pollution
control facility
interests.
In particular, the Illinois
Solid Waste Planning and Recycling Act,
415 ILCS 15/1
et
seq., requires that counties (including Saline County) develop and maintain a plan for the
management ofwaste generated within their boundaries.
See 415 ILCS
15/4(a).
Indeed, the
General Assembly has identified counties, and not any other governmental unit, as primarily
responsible for planning for solid waste management facilities!
Among other things,
such plans
must identify existing facilities available for waste management, ~
must also identify facilities
that are proposed during the next 20 years.
~
415 ILCS
15/4(c)(2)
and
(3).
Perhaps most
importantly, each county must describe the “time schedule for the development and
operation of
each proposed facility or program” for which planning is being conducted.
415 JLCS
15/4(c)(5).
7
The counties must also
identify “potential sites within the county where each such.
.
.
facility
would be located or an explanation of how the sites will be chosen.” 415 ILCS
15/4(c)(6).
These
plans are required by law to be updated and revised every five years. 415 ILCS
15/5(e).
In complying with the solid waste planning requirements, counties are expressly
required
to follow the waste hierarchy set forth in the Illinois Solid Waste Management Act
(~c~
415
ILCS
15/4(a)), section 2(d) of which specifically places landfilling as i~tin
the preferred waste
management strategies.
415 ILCS 20/2(b).
Finally, the county’s significant role in overall waste management planning is recognized
even in the siting statute itself.
The eighth siting criterion, in
fact, specifically requires siting
applicants to assure that their proposed facility is consistent with the solid waste management
plan approved by a particular county. 415 ILCS 5/39.2(a)(viii).
The Statute Declares SCLI’s SitingApproval Has Expired
The very words of the Environmental Protection Act support the Agency’s decision to
deny SCLI’s permit application for the reason that the local siting approval had expired.
Specifically, the statute provides as follows:
A local siting approval granted under this Section shall expire at the end of.
.
.3
calendar years from
the date upon which it was granted.. .unless within that period
the applicant has made application to the Agency for a permit to
develop the site.
415 ILCS 5/39.2(f).
On its face, this statutory language
reveals that, unless SCLI had sought permitting for
the approved facility within three (3) years
after the siting approval was granted, the siting
approval expired.
Here SCLI neither sought
a permit for the facility which was approved, nor a
permit for the ~it~upon which the facility was located, within the time required by law.
The
siting has therefore expired.
8
SCLI appears to argue that the statute requires only that a small portion ofthe approved
airspace be subject to a permit application, which will then keep alive the siting approval for the
entire sited airspace.
Thus, SCLI claims that a small portion of sited airspace was the subject of
a permit application filed only a month after the siting approval was granted in
1996, which has
subsequently been permitted and constructed;
this circumstance, according
to SCLI, has rendered
the entire remainder of the sited airspace immune from expiration pursuant to Section 39.2(f).
SCLI’s argument fails for a number of reasons.
First,
although for purposes of this
argument Saline County will assume the correctness of SCLI’s assertions, in
point of fact
SCLI has utterly failed to prove what portion of the 1996 airspace was permitted, or when all of
that occurred.
SCLI does no more than point to some legal conclusions included
in the record,
but ofcourse legal conclusions cannot be admitted to, and in any event, legal conclusions
without a factual basis or framework are meaningless.
In short, this record does not support that
any portion of the facilities subject to the 1996 siting approval were ever permitted, and
since the
burden is upon SCLI, this factor alone should warrant affirmance of the Agency
permit denial.
Second, even assuming
that proof exists that this happened, SCLI’s argument overlooks
the wording of the statute itself.
Curiously absent from
SCLI’s argument, in fact, is
recognition
that the statute requires an application
“for a permit to
developth~
~ii~”(emphasis added).
The
statute does nQt say that seeking a permit for a portion ofthe site is
acceptable, or in
any other
way supports
SCLI’ s tacit assertion that piecemeal development permitting
is acceptable under
the siting statute.
The General Assembly understands the difference between the entire site and
portions of the site; with respect
to facilities for which a development permit was issued before
November 12, 1981 (the effective date of Section 39.2’s siting process), Section 39(c) (4th
paragraph) states:
“If
an operating permit has not been issued by the Agency prior to August
9
31,
1989 for any portion of the facility, then the Agency may not issue or renew any
development permit nor issue an original operating permit for any portion of such facility unless
the applicant has submitted proof to the Agency that the location ofthe facility has been
approved by the appropriate county board or municipal governing body pursuant to
Section 39.2
of this Act.” 415 ILCS
5/39(c).
In other words, even the landfills grandfathered in without siting
approval in 1981 were required to be
operating by 1989--any portion not operating had to go
through siting approval!
Hence, the Environmental Protection Act clearly recognizes that
Section 39.2(f) requires a development permit application for the entire approved ~
and not
merely for a portion of it.
This interpretation is borne out, as well, in the words employed in the siting statute itself.
The word “site,” in fact,
is a defined term:
“site’ means any
location, place,
tract of land, and
facilities, including but not limited to buildings, and improvements used for purposes subject to
regulation or control by this Act or regulations thereunder.” 415 ILCS
5/3.43.
Section 39.2, of
course,
requires siting approval for any new “pollution control facility,” which is defined to
include “any waste storage site, sanitary landfill,” etc.
(415 ILCS
5/3.32).
Moreover, a “new
pollution control facility” includes:
“the area of expansion beyond the boundary of a currently
permitted pollution control facility.” (415 ILCS
5/3.32(b)(2)).
Section 39.2 repeatedly utilizes both the term “facility”
aiid the term “site.”
Moreover,
Section 39(c),
415 ILCS
5/39(c),
requires as a precondition to permitting proof “that the location
ofsaid facility has been approved by
the County Board” in accordance with Section 39.2.
The
third paragraph of Section 39(c) discusses a “facility forwhich the proposed
~jt~
is located”
(emphasis added), and Section 39(k) provides that a development permit for “any facility or site”
10
will expire unless action is taken within 2 years to
develop such facility or site.
415 ILCS
5/39(k).
.
Putting these statutory provisions together, it is clear that a “site” is made up of one or
more “facilities.”
When obtaining approval, though, the “site”
is the place where the facilities
will be located, with thus determines a number ofcritical matters,
including which body will be
the siting authority for the facilities, who is entitled
to notice, etc.
In any event, Section 39.2(f)
clearly requires that a development permit be sought for the entire ~
and not merely for
discrete “facilities” within such a site for which siting approval may be
granted (let alone only
a
portion of a “facility”, as suggested by SCLI).
Notably, SCLI’s interpretation would work substantial mischief upon the General
Assembly’s obvious intentions
in carefully crafting the scheme that exists.
As discussed above,
counties (including Saline County) play a lead role in overall planning activities, and in approval
ofspecific facilities that will serve waste disposal purposes within their confines.
Counties are
required by law to
remain current and actively involved in activities which impact the
development of pollution control facilities,
and must continually update planning documents to
address developments as they occur.
In SCLI’s view, once a siting applicant has achieved basic
siting approval, the county should be removed from involvement by the mere expedient of the
siting applicant seeking development for a small discrete portion of its landfill.
Indeed, that
is
the very thing that has happened here; according to
SCLI, the mere fact that
it has (allegedly)
sought
a development permit for a very small portion of the sited airspace precludes either Saline
County
or the Agency from interferingwith SCLI’s future intentions with respect to the
remainder of its airspace.
This would allow SCLI
to “mothball” its airspace indefinitely until it
can demand a monopoly market, or other market conditions solely under its
review and control.
11
This is, of course,
in direct contradiction to the General Assembly’s expectation that counties,
and not siting applicants or even the Agency, will play the primary role in solid waste
management planning!
Again SCLI has attempted to
defend its actions by claiming that the facts before this
Board do not reveal any such “mothballing,” but
instead reflect “diligent efforts.”
Even if this
were true, it would not be relevant in light ofthe express statutory language and
the clear
legislative intent. Moreover, SCLI’s claim is ludicrous in light of the facts.
It has repeatedly
attempted
to obtain permitting for a facility that has never been approved by the Saline County
Board.
This first happened, of course, in the earlier permit appeal case.
Then, even after that
permit was finally denied by
the Agency, SCLI resubmitted the same plan to the Agency,
apparently for another review.
Even in this very
proceeding, in fact, SCLI
is still attempting to
secure Agency approval for features never approved by
the Saline County Board!
As Joyce
Munie testified, even if this permit had
been granted, a condition would have been imposed
requiring SCLI to
seek siting approval if it ever wanted to
develop the berm as landfill airspace--
such
a condition was necessary because SCLI had included language
in its permit application
purporting to retain
the “right” to seek approval for permitting that airspace at a later date! (Tr.
64).
Hence, far from having diligently sought permitting for the airspace it had sited in 1996,
SCLI has played games with
the Agency and this
Board, attempting to
permit facilities which
never have received siting approval.
Its suggestion that those
efforts should be counted in its
favor with respect to
the facility that was sited makes no sense.
12
The Board’s and Appellate Court’s Medical Disposal Services Cases Control This Decision
SCLI does not even mention in
its brief the Medical Disposal Services cases
decided by
this Board and the appellate court.
This is clearly an
intentional oversight, because the Medical
Disposal Services decisions control most of the salient issues in this case.
This Board’s Medical Disposal Services. Inc. v.
Illinois Environmental Protection
Agency case was decided on May 4,
1995 (PCB 95-75 and PCB 95-76 (cons.)).
A company
known as Industrial Fuels
&
Resources/Illinois, Inc. had been denied local siting approval for a
new medical waste treatment facility to be
located in Harvey,
Cook County, Illinois; by opinion
entered
March 19, 1992,
the appellate court reversed that decision and
ordered that the siting
approval be granted.
This Board thereafter entered an order dated June 25, 1992,
which
indicated that the Board’s order itself would stand as proof that local siting had been approved,
and
that Industrial Fuels
& Resources/Illinois, Inc. could proceed with the permitting process.
Thereafter, MDS purchased the siting approval from Industrial Fuels
&
Resources/Illinois, Inc.,
and submitted both
air and land construction permit applications to
the Agency, relying upon the
Board’s June 25, 1992 order as proof of siting approval.
At first, the Agency assured MDS that the siting approval was transferable, and
that MDS
therefore would qualify for the requested permits.
As summarized
by the appellate
court, “an
assistant counsel for the Agency responded in
a letter dated January 10, 1994,
that, consistent
with previous interpretations in
similar situations, the Agency’s policy remained that
siting
approval was location specific so that it remained with land upon sale.
The letter also stated that
the siting approval granted
to Industrial Fuels was valid for MDS’
development of the facility.”
Medical Disposal
Services, Inc. v. Illinois Environmental Protection Agency,
286 Ill. App. 3d
13
562,
564, 677 N.E.2d 428, 429
(1St Dist. 1997).
The appellate court continued with its discussion
of the factual background:
In May 1994 MDS submitted applications to
the Agency for permits
to construct
the facility.
In September the Illinois Attorney General’s office wrote to MDS
that Harvey had not granted local siting approval to MDS.
In October the Illinois
Attorney General’s office wrote
a letter to the general
counsel for the Agency that
its view was that local siting approval was “not only site-specific but facility-
specific and applicant-specific.”
On January
13,
1995, the Director of the Agency
wrote to the Attorney General that the two agencies had differing interpretations
ofthe siting approval law, but on January 31 the Agency denied MDS’ permit
•
applications.
286 Ill. App. 3d
at
564-65,
677 N.E.2d at 429.
In considering MDS’ subsequent permit appeal, this Board noted that the Environmental
Protection
Act did not specifically address the issue, but that case law, as cited above, clearly has
found that local siting bodies constitute the most critical phase of the landfill site approval
process
(~
Kane County Defenders v. Pollution Control Board, 139 Ill. App. 3d 588, 487
N.E.2d 743 (2d Dist.
1985) (quoted at Medical Disposal Services, Inc., PCB
95-75
and 95-76
(cons.), slip op. at 7)).
This Board noted that allowing siting approval transference would
“bypass the scrutiny of the hearing process at the local level, it would
deprive the local siting
authority ofits statutorily defined right..
.“
to
consider the relevant
statutory factors.
This Board
also considered legislative amendments which had specifically allowed a certain degree of
scrutiny by the local decision making body into an applicant’s background, and
concluded that
the statute mandated that the siting be
considered specific to
an individual applicant.
The Board noted that “the Agency was correct in its denial of the construction permits.
Section 39.2(f) of
the Act provides in pertinent part that the applicant has two years from the
date upon which siting approval is
obtained in which to make application to the Agency for
permits
to develop the site.
If the siting applicant does not do so, the siting approval expires.
14
Industrial Fuels
made no
such application, and no permit has yet been issued to the siting
applicant, i.e., Industrial Fuels.”
PCB
95-75
and 95-76 (cons.), slip
op. at
5-6.
The factors guiding this Board’s Medical Disposal Services decision compel
a similar
ruling here.
The statute
clearly required that SCLI file its permit application for the entire
s.~im
within three years following the siting approval (notably, SCLI has failed to provide any
evidence ofany appeal process or other statutory-approved means of extending the expiration
deadline).
The three year limitation, as interpreted by Saline County and the Agency, is clearly
in harmony with the obvious legislative intent that siting approvals be relevant to current
conditions, that counties maintain active and up-to-date involvement with respect to
solid waste
planning issues, and
that siting applicants diligently proceed to
obtain permitting for the facilities
that have been approved.
In Medical Disposal Services, the applicant that sought the permit was
not the applicant who had received siting approval.
Here, although the applicant was the same,
the facility differed•in that the permit facility championed by SCLI
in the earlier permit appeal is
not the same as the facility that was approved by the Saline County Board.
As was the case in
Medical Disposal
Services, the applicant attempted to obtain siting approval for something that
had never been approved by
the local body, and the Agency, followed by this
Board, disallowed
that attempt.
(SCLI’s chance to obtain
development permitting for the 1996 sited airspace had
therefore expired long before this
Board’s earlier permit appeal decision).
There
is no prejudice to
SCLI.
If its proposed facility is viable, and
will meet all of the
environmental standards
(as SCLI has constantly claimed), it need only prove
as much to the
Saline County Board, based upon current circumstances and
conditions.
Just as in Medical
Disposal Services where this Board noted that the new applicant’s background would be of
relevant concern to
the siting authority,
so, too, would developments which have occurred in the
15
nearly eight years since the 1996 siting approval, which would include matters relevant to the
“traffic” criterion, the “consistency with county plan” criterion, the “health, safety
and welfare”
criterion, and many of the other siting criteria over which the Saline County Board has exclusive
jurisdiction (see
415 ILCS 5/39.2(a)).
As in Medical Disposal Services, the
~
way to give life
to the clear statutory intent is to
send the SCLI facility back to the Saline County Board for a
new review (as the transcript of the hearing states, only one
current County Board member was
on the County Board
at the time of the 1996 siting).
Miki Pavelonis, a former County Board member (a veteran of SCLI’s 1996
siting
hearings), explained the context very well:
My question is:
How many applications can Saline County Landfill, Inc.
file and have denied before the siting expires?
The first application was filed and
the permit was denied.
3 years have passed.
Excuse me.
At that time the landfill
should have been required to
go back for another siting.
There is a reason why there is limitations on a number ofyears they have
to file the permit.
The situations change.
The nine criteria addressed in the
application approval involved health and safety consideration, market
consideration, traffic consideration and property value consideration.
Many of
these things have changed over the 8-year period of time.
They have said the
reason is there are ground water questions.
Questions about more than one fault
line.
Questions
about property values, and questions about the roadway.
The
•
landfill may be able to address all these questions that have been mentioned in
the
newspaper.
But the point is, they should have to address the question to that any
decisions made by the County Board will be fully informed decisions made on
consideration of the nine criteria and current circumstances.
(Tr.
at 81-82).
The appellate
court largely followed this Board’s reasoning in its
opinion affirming the
Board’s order.
Like this Board, the appellate court noted the pivotal nature of the local siting
proceedings, and the court also noted the lack of any prejudice
to the siting applicant, who
simply needed to resubmit the facility for a new review, particularly since that was what the
statute required:
“Requiring MDS to submit to
another review by Harvey will not be needlessly
16
duplicative because it is essential to implement the legislative intent of providing meaningful
local approval of the siting of pollution-control facilities.
It may be that
a change in
ownership
will not in every case significantly change the operation of a facility, but it is also possible, if not
more likely, that the management would change when the ownership changes.” 286 Ill. App. 3d
at 569, 677 N.E.2d at 432.
Similarly, the mere passage oftime
may not in all cases affect the
issues relevant for local
siting consideration, but in most cases, clearly the passage oftime will
have a significant impact on those issues.
The appellate court also considered arguments very similar to
those made by SCLI
concerning the alleged change
in Agency practice that preceded the permit denial in this
case.
As here, the permit applicant in Medical Disposal Services complained long and hard that the
Agency had misled it into proceeding with the permit application process, and
then at the last
moment changed its mind.
The appellate court unequivocally rejected these arguments, noting
among other things that applying estoppel would be inappropriate “because it would defeat the
statutory intent to
give approval powers to localities in a matter concerning public health and
safety.” 286 Ill. App. 3d at 570, 677 N.E.2d at 433.
Here, too, SCLI’s arguments would
at best
penalize Saline County for mistakes made in
otherunstated and unidentified cases by the
Agency.
•MDS also requested that the court extend the expiration deadline of Section 39.2(f), to
provide MDS the additional time necessary to
submit a permit application supported by local
siting approval, which the court rejected, holding that “equitable
tolling cannot be applied to
toll the two-year expiration period to obtain local
siting approval.” Ish
Further,
the court held
that, even if some tolling principles would theoretically
be available, they refused
to do so to
benefit MDS:
“MDS will suffer a delay in seeking to
obtain its permits because of the change in
17
the Agency’s policy, but MDS was not prevented by
the Agency from seeking local siting
approval.
.
.
.
Tolling
of the two-year approval period will not prevent the permanent expiration
of any right....Here
the Agency’s conduct did not forever cut off MDS’s ability
to proceed with
the development ofthe facility.
MDS could before, and may still now, seek local siting approval
from Harvey.” 286 Ill. App. 3d at 571, 677 N.E.2d at 433-34.
That is
all Saline County wants here.
As
Saline County has consistently stated, it takes
no position on any
issues concerning a siting application or other requests that SCLI may make
in the future.
At present, though, SCLI has no “live” siting approval with which to obtain any
permitting, and this Board should affirm the permit denial of the Agency.
This Board’s Dicta In PCB 02-108 Is
Irrelevant
•
SCLI places most of its chips on the argument that a passing mention in the PCB 02-108
May
16, 2002 decision, which even identifies itself as dictum, somehow controls
this case.
The
argument is meritless, as is the rest of SCLI’ s appeal.
This Board’s May 16, 2002 ruling in
SCLI’s earlier permit appeal, drafted by former
Board member C.A. Manning, included as its final discussion the following:
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 of 50.
The Agency explained to SCLI
during the permit application process that SCLI could have proposed widening
the interior berm to 100
feet.
Doing so could have addressed the Agency’s
concerns over compliance with the Board’s landfill regulations on stability and
groundwater monitoring, while maintaining the separate units of the landfill as
proposed
to the County Board in 1996.
Though the Agency explained to
SCLI
that eliminating the interior berm could address concerns over compliance with
the Board’s regulations (the path SCLI
chose), this
had no effect on SCLI’s
obligation under Section 39(c) of the Act to
submit proof of local siting approval.
PCB 02-108, slip op. at 19 (May 16, 2002).
18
SCLI relies primarily on the above quote as support for its untimely permit application.
The reliance is woefully misplaced.
First,
on its face the paragraph is pure dictum, not relevant to
any issue being decided,
and in
fact not even ruled upon by the Board itself!
Under these circumstances, it is not even
clear why SCLI cites to the language.
Moreover, no mention is made in
any published Board opinion in PCB 02-108 that
section 39.2(f) was of any interest or relevance in that case at all.
In fact, it wasn’t, and that
is
why the Board was so clear
that the issue had no bearing on the decision and was not making any
ruling.
Similarly, the statement can provide no shelter for SCLI here.
Finally, it is clear that this Board can neither expand nor contract the authority granted by
the General Assembly.
And SCLI itself concedes that the question raised in this case is
one of
law (statutory interpretation).
Whatever may have been said in the earlier case cannot change
what the statute means--it means what it means--and therefore the language has no relevance to
the issue now
to be decided.
SCLI also claims that Saline County’s “failure” to have appealed the dictum somehow
binds it in this case to the same result.
This is indeed a curious
argument.
Pursuant to
Section
41(a) ofthe Environmental Protection Act, 415 ILCS 5/41(a), only a “person who has been
denied a.. .permit under this Act,” or a “party adversely affected by a final order or determination
of the Board,” could seek judicial review (i.e., an appeal).
Saline County ~
PCB 02-108.
There is no such thing as appealing from non-binding dictum, particularly where the Board itself
stated that the issue “has no bearing on
the Board’s decision today, and the Board makes no
ruling on it..
.“
Simply put, there was no basis or means for appealing the language in question,
and no inferences can legitimately be drawn from the circumstances.
(Notably, SCLI cannot,
19
and
does not, argue that it relied on that dictum--the dictum on its face said it was not to be relied
on (and so any such reliance was by
definition unreasonable), and SCLI took no new action on
its permit as a result ofthat language.
To the contrary, it waited until February 2003 to withdraw
the bad permit from its
renewal application, and it was not until April 2003--nearly a year after
this Board spoke, and
a full seven years after siting approval--that SCLI submitted a “new”
application that supposedly conformed with the siting approval).
Conclusion
Intervenor Saline County requests that this
Board affirm the permit denial of Respondent
Illinois Environmental Protection Agency.
SCLI’s remedy, if any, is to
obtain a fresh siting
approval from the Saline County Board, after which it will be free once again to seek
developmental permitting.
Respectfully
submitted,
COUNTY OF SALINE
Intervenor,
By Its attorney,
Hedinger Law Office
2601
South Fifth Street
Springfield,
IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
20
