)

)

)

PCBNo.04-117

)

(Permit Appeal)

)

)

NOTICE

RECE~VED

CLERK’S OFFICE

APR

092004

STATE OF ILUNOIS

Pollution Control Board

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, IL 60601

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box

19274

Springfield, IL

62797-9274

Stephen F. Hedinger

Hedinger Law Office

2601

South Fifth Street

Springfield,

IL

62703

Brian E. Konzen

Lueders, Robertson & Konzen, LLC

1939 DelmarAvenue

P.O. Box 732

Granite City, IL

62040-0735

Rod Wolfe,

State’s Attorney

Saline County State’s Attorney Office

Saline County Courthouse

10 EastPoplar Street

Harrisburg, IL

62946

PLEASE

TAKE

NOTICE

that I

have

today filed

with the

office of the

Clerk

of the

Pollution

Control Board a RESPONSE TO PETITIONER’S BRIEF, copies

ofwhich are herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

SALINE COUNTY LANDFILL,

Petitioner,

V

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

tant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: April

5,

2004

---

~VED

CLERK’S OFFICE

BEFORE

THE POLLUTION CONTROL

BOARD

APR

Li 92004

OF

THE

STATE OF ILLINOIS

STATE

OF ILUNOIS

Pollut~on

Control Board

SALINE COUNTY LANDFILL, iNC.,

)

Petitioner,

)

v.

)

PCBNo.04-117

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal

-

Land)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE TO PETITIONER’S

BRIEF

NOW COMES the Respondent, the Illinois

Environmental Protection Agency

(“Illinois

EPA”), by one of its

attorneys, John J.

Kim, Assistant Counsel

and

Special Assistant Attorney

General,

and,

pursuant

to

the

briefmg

schedule

set

by

the

assigned

Hearing

Officer,

hereby

submits its response to the Petitioner’s brief.

I.

A.

Standard of review

Section

39(a)

of the

Illinois

Environmental

Protection Act

(“Act”)

(415

ILCS

5/39(a))

sets

forth

the standard

the Illinois

EPA shall apply when

deciding whether to

issue

a

permit.

Specifically,

Section

3 9(a) provides that when the Board has, by regulation, required a permit for

the construction, installation or operation of any type of facility, the applicant shall apply to the

Illinois

EPA

for such

a

permit.

The

Illinois

EPA

shall

issue

the ‘permit

upon

proof by

the

applicant that the facility will not cause a violation of the Act or of the regulations

thereunder.

Community Landfill Company and City ofMorris

v.

Illinois Environmental Protection Agency,

PCB 01-170 (December

6, 2001), p.

4

(“Community Landfill I”);

Panhandle Eastern Pipe

Line

Company

v.

Illinois

Environmental

Protection Agency, PCB

98-102

(January

21,

1999),

p.

7.

Here,

the

Illinois

EPA

denied a

permit

sought

by

the

Petitioner

on

the basis

that

a

statutory

requirement (i.e., providing adequate proofoflocal siting approval) had not been met.

1

---

The Petitioner had

the burden

to

prove to

the Illinois

EPA that approval of the permit

sought

would

not

violate

the

Act

or

regulations

if the

Illinois

EPA

granted

the

permit

as

requested.

If Saline County Landfill, Inc.

(“SCLI”) failed to prove that no violation would

occur

upon

issuance,

it

would

be

proper

for

the

Illinois

EPA

to

deny

or

condition

the

permit

accordingly.

Brownilig-Ferris

Industries

of Illinois,

Inc.

v.

Pollution

Control

Board,

179

Ill.

App.

3d

598,

534

N.E.2d 616

(2~u~

Dist

1989); Panhandle, p.

7;

John Sexton

Contractors Co.

v.

Illinois,

PCB 88-139 (February 23, 1989), p. 4.

The

Board

has

previously held

that

the

sole

question before

it

in

a

permit

appeal

is

whether the applicant proves that the application, as submitted to the Illinois

EPA, demonstrated

that no

violations

of the

Act would

have

occurred if the

requested permit

had

been issued

as

applied

for.

Community

Landfill

Company

and

City

of

Morris

v.

Illinois

Environmental

Protection

Agency,

PCB

01-48,

01-49

(April

5,

2001)

(“Community

Landfill

II”),

p.

2;

Panhandle, p.

8;

Sexton, p.

6.

Thus, the Petitioner must demonstrate to the Board that issuance

ofthe permit at issue would not result in a violation ofthe Act or Board regulations.

It

is

well-settled that

the

Board’s review of permit

appeals

is

limited

to

information

before

the

Illinois

EPA

during

the

Illinois

EPA’s

statutory

review period.

The

Board

will

generally not consider information developed by the permit applicant, or the Illinois

EPA, after

the

Illinois

EPA’s

decision.

Community

Landfill

I, p.

4;

Alton

Packaging Corp.

v.

Pollution

Control Board,

162 Ill.

App. 3d 731, 738, 516 N.E.2d 275, 280

(5th

Dist.

1987).

The

hearing

before the

Board

provides

a

mechanism

for the

petitioner to

prove

that

operating

under

the permit

as

granted would

not

violate

the Act or

regulations.

Further,

the

hearing affords the petitioner the opportunity to challenge the Illinois EPA’s reasons for denying

the permit by means ofcross-examination and also

allows

the Board the opportunity to receive

2

---

testimony to

test the validity of the information relied

upon by the

Illinois EPA.

Community

Landfill I, p. 4; Alton Packaging,

162 Ill. App. 3d at 738, 516 N.E.2d at 280.

Evidence that was not before the Illinois EPA at the time of its

decision is

typically not

admitted

at hearing or considered by

the

Board.

Community

Landfill

I, p.

4;

West Suburban

Recycling and Energ~Center, L.P.

v.

Illinois

Environmental

Protection

Agency,

PCB

95-199,

95-125 (October 17,

1996); Panhandle, p.

8.

B.

Burden ofproof

In a permit

appeal, the burden of proof is upon the permit

applicant to

demonstrate that

the,regulatory

and

statutory

bases

for the Illinois

EPA’s

denial

are inadequate to

support

that

denial.

ESG

Watts,

Inc.

v.

Illinois

Pollution

Control

Board

and

Illinois

Environmental

Protection Agency,

286 Ill. App.3d 325, 331,

676 N.E.2d 299,

303

(3r~I

Dist.

1997);

35

Ill.

Adm.

Code

105.112(a).

The permit

applicant, not

the Illinois

EPA, bears the burden of providing the

information necessary to demonstrate that no violation would occur.

The applicant is entitled

to

a favorable

decision if,

and only if, it has successfully borne its

burden ofproof.

Therefore, the

primary

focus

must

remain

on

the

adequacy

of the

permit

application

and

the

information

submitted by the applicant to the Illinois

EPA.

Sexton, p.

C.

Issue on appeal

The issue before the Board here is whether the local

siting approval issued by the Saline

County Board to SCLI on November 21,

1996, expired as to the subject permit application on the

basis that the permit application was not

submitted within three years ofthe date of local

siting

approval.

3

---

II.

STATEMENT

OF FACTS

The facts in

this

case

are

straightforward and simple.

On

November 21,

1996, the Saline

County Board granted local

siting approval to

SCLI.

Administrative Record, pp. 329,

345~358.1

Later,

on April

4, 2003,

consultants

for SCLI

submitted an application for the lateral expansion

of the Saline County Landfill (“permit application” or “subject permit application”).

The permit

application is

also identified as an application for significant modification.

AR, p.

316.

As part

of the permit application, SCLI

included reference to the November

1996

siting approval.

AR,

pp.

329,

345-358.

No

other

proof of

local

siting

approval

was

provided

with

the

permit

app~ication.

On December

5,

2003, the Illinois EPA issued a final decision on the permit application.

AR, pp. 2-3.

The Illinois EPA denied the permit on the basis that the application did not provide

proof of local

siting approval pursuant to

Section

39(c) ofthe Illinois

Environmental Protection

Act (“Act”) (415 ILCS

5/39(c))

since the siting provided in the application expired.

AR, p. 2.

In its

statement of the facts, the Petitioner makes reference to the Board’s decision in the

case of Saline

County

Landfill, Inc.

v.

Illinois

EPA, PCB 02-108 (May

16,

2002).

However, a

review of the

facts

and

issues raised

in

that

case make

clear

that

there

are

legal

and

factual

distinctions

between that case and the present matter.

Citations to

dicta issued by the Board in

that case have no precedential value here, and should be kept in context since none ofthe issues

or legal

arguments being made in the case at bar were made in the older case.

Any attempt to

apply the arguments or holdings

in that case to the present is

akin to forcing a square peg into a

round hole.

For example,

in

that case, the permit

application that was based on the November

1996

siting approval was submitted to the Illinois EPA within three years ofthe issuance of the siting

The Administrative Record will hereinafter be referenced as either “Record” or “AR”

4

---

approval.

Therefore, no concerns regarding whether the siting approval had expired by operation

of Section

39.2(f) of the Act

(415

ILCS

5/39.2(f))

were

necessary, relevant, or

raised in

any

fashion.

That is

exactly the

issue

before the

Board

in the present case,

thus

the

present case

involves different

legal and

factual considerations.

Contrary

to

assertions by the Petitioner, the

Illinois

EPA made n~“judicial

admissions”

since in

that

case there

the

final

decision under

review was

not

based

on

a

finding

that

local

siting

approval

had

expired.

It

was

a

different

permit

application,

a

different

final

decision

by

the

Illinois

EPA, and

different

review by

the

Board.

In a post-decision order, the Board itself noted that the statement by the Board that SCLI

could

avoid

seeking

new

siting approval

by

submitting

a

new

permit

application

was

not

a

statement of law, but rather was

an

observation as to

what the parties had not disputed.

Saline

County

Landfill (July

11,

2002),

p.

2.

Since the Board was not reviewing a situation

in which

the Illinois EPA determined that siting approval had expired, there was no reason for the parties

to

dispute that fact.

The case in PCB 02-108 is simply inapplicable to the present appeal.

The Petitioner also makes note ofthe fact that during the pendency of the subject permit

application, certain conversations were held between the Illinois EPA and SCLI during which the

topic ofthe validity ofthe November 1996

siting approval was raised:

In both that situation, and

the

situation

in

which

the Illinois

EPA made

statements

on

that

topic

in

correspondence

sent

before

the

issuance

of

the

final

decision

here,

the

Illinois

EPA

did

not

misrepresent

any

understanding of the relevant law or facts.

Indeed, the Petitioner has not made any allegations

that

the

Illinois

EPA

should

be

estopped

from

issuing

the

December

2003

final

decision.

Obviously,

the

relevant

content

of conversations

between

Illinois

EPA

and

SCLI

and

the

correspondence

sent

by

the

Illinois

EPA

during

the

review of the subject

permit

application

5

---

differs in position and interpretation from that

which was ultimately embodied in the December

2003

final

decision.

As

will

be

discussed

below,

however,

the

Illinois

EPA

(like

any

administrative agency) may change its interpretations of law if reasonable

and warranted.

That

was the situation here.

In the present case, the final

decision was

issued

by

the Illinois

EPA in the

form of a

letter signed by Joyce Munie, the manager of the Illinois EPA’s Bureau of Land Permit Section.

AR,

p.

3.

Ms.

Munie has been

granted

the

final

authority

within

the

Illinois

EPA

to make

decisions

on

permit

applications,

and

she

is

not

beholden

to

follow

any

recommendations

proyided by her staff.

Hearing Transcript, p.

68.2

The decision issued by Ms.

Munie was done in

a timely fashion.

The Petitioner attempts

to

paint that

decision in

a questionable light by

claiming

that the decision was issued

“without

warning.”

Petitioner’s

Brief, p.

5.

What the Petitioner fails to recognize

is that there is no

such

requirement for

any

“warning”

or

other notice

prior

to

the

issuance

of a

final

decision

on

a

permit application.

Section

3 9(a) of the Act requires that the Illinois EPA issue a final decision

within the time allowed, and that the Illinois EPA cannot approve a permit

application if to do so

would result in the violation of the Act or underlying regulations.

Ifthe

Illinois EPA denies a

permit,

it must provide the sections of the Act

or associated

regulations that may be

violated if

the permit were granted, the type of information the Illinois EPA deems was not provided, and a

statement of the reasons

why

the Act

and

regulations

might

not

be

met

if the

permit

were

granted.

A

review

of the

fmal

decision

issued

on

December

5,

2003,

shows

that

all

those

requirements were

met.

The Illinois EPA identified Section

3 9(c) ofthe Act as the section that

would

be violated, the

Illinois EPA noted that proof of local

siting approval was not provided,

2

The Hearing Transcript will hereinafter be referredto as, “TR.”

6

---

and

the

Illinois

EPA

explained

that

local

siting

had

expired.

Those

statements

satisfy

the

requirements

imposed

by

Section

39(a)

of the

Act.

Contrary to

the

Petitioner’s

claims,

the

Illinois

EPA need not explain in its final decision the specific

rationale and

interpretation of the

Act that led to the issuance ofthe final decisions so long as the required information is provided.

The Petitionefstates that

attempts by it to

determine the justification for the reversal of

the Illinois EPA’s

statutory interpretation were

objected to.

Petitioner’s brief, p.

5.

Indeed, the

Illinois

EPA did rightly

and

successfully claim that privileged and confidential material

should

be

so protected.

However, that said,

the Illinois

EPA has

clearly stated that the final decision

reached

here

was

not

done

in

an

arbitrary

or

capricious

manner.

Rather,

the

Illinois

EPA

received

correspondence

from

the

Illinois

Attorney

General’s

Office

(“Illinois

AGO”)

that

contained

that

office’s

interpretation

and

application

of Section

39.2(f)

to

the

review of the

subject permit application.

Respondent’s Motion for Order ofProtection and Privilege Log,

p. 2.

The Illinois AGO

is the constitutional officer charged with representation of the State of

Illinois and state agencies, including the Illinois

EPA.

In this case, the Hearing Officer properly

recognized that the Illinois AGO acted

in the capacity of attorney to the Illinois

EPA.

It is not

appropriate to

divulge the content ofthe privileged correspondence, but it is appropriate

for the

Illinois EPA to pay all due heed to advice from the Illinois AGO.

III.

RULES OF STATUTORY CONSTRUCTION

AND

A.

Look to language of statute

The

rules

of statutory

construction

and

deference

owed to

an

administrative agency’s

interpretation

of

statutes

it

administers

are

well-established.

It

is

a

primary

rule

in

the

interpretation

and

construction

of

statutes

that

the

intention

of the

legislature

should

be

ascertained

and

given

effect.

A court

should

first

look

to

the

statutory

language

as the

best

7

---

indication

of legislative

intent

without

resorting

to

other

aids

of construction.

Where

the

language of a statute

is plain and unambiguous, a court need not consider its legislative

history.

A court should not attempt to read a statute other than in the manner in which it was written.

In

applying plain and unambiguous language, it is not necessary for a court to search for any subtle

or not

readily

apparent

intention

of the legislature.

Envirite

Corporation v.

Illinois

EPA,

158

Ill.2d 210, 215-217, 632 N.E.2d 1035,

1038

(1994).

B.

Look to legislative intent

In construing a statute, it is fundamental that a court is

to ascertain and give effect to the

legislative intent.

In doing this, the court should consider not only the language of the statute but

also the reason and

necessity for the law, the evils to

be remedied, and the objects and purposes

to

be

obtained.

If the

legislative

intent can be

determined from unambiguous language of the

statute, that

intent

will be

given effect without necessity of resort to

aids

of construction.

It is

axiomatic that if a statute

contains language with an ordinary and popularly understood meaning,

courts

will assume that is the meaning intended by the legislature.

The terms ofa statute are not

to

be

considered in

a vacuum.

Further, as provided for

in

Section

2(c) of the

Act (415 ILCS

5/2(c)),

the

terms

and provisions of the Act

shall

be

liberally construed so as

to

effectuate the

purposes ofthe Act.

M.I.G.

Investments, Inc. v.

Illinois EPA,

122

Ill:2d 392, 397-398, 400,

523

N.E.2d

1, 3,

4 (1988).

C.

Deference for Illinois EPA’s interpretation

There

are

also

guidelines

established

regarding

deference

owed

to

a

state

agency’s

interpretations ofstatutes.

Courts will give substantial weight and deference to the interpretation

of an

ambiguous statue by the

agency charged with the administration and

enforcement of the

statute

based

upon

the

fact that

the

agencies

can make

informed judgments

upon

the

issues,

8

---

based

upon

their experience

and

expertise.

Village of Fox

River Grove

v.

Pollution

Control

Board, 299 Ill. App.

3d 869, 878, 702 N.E.2d 656, 662

(2””’ Dist.

1998).

While

an

appellate

court

is

not

bound

by

an

agency’s

interpretation

of

statutory

provisions, the agency’s interpretation should be

given great weight.

It will be

overturned only if

it is found to be

erroneous.

Laidlaw Waste Systems v.

Pollution

Control Board, 230 Ill.

App.

3d

132,

136-137,

595

N.E.2d 600, 603

(5th

Dist.

1992).

However,

there

are

certain

parameters

to

the

deference

to

be

accorded,

though

these

limits are not consistently defined from one

court to the

next.

Administrative bodies are bound

by prior

custom and practice in interpreting their rules

and may not arbitrarily disregard them.

Alton

Packaging

Corporation v.

Pollution

Control

Board,

146

Ill.

App.

3d

1090,

1094,

497

N.E.2d 864,

864

(5t~’~

Dist.

1986).

Here though, the provision under examination is not a rule of

the Illinois

EPA’s; rather, it is

a statutory

provision passed by the legislature which the Illinois

EPA is

charged with applying and interpreting.

Also,

courts

recognize

that

inconsistent

readings

by

the

Board

are

of

great

concern.

Although

an

administrative

agency

may

alter

its

past

interpretation

and

overturn

past

administrative rulings and

practice, such abrupt shifts constitute “danger signals”

that the Board

may

be

acing inconsistently

with

its

statutory

mandate.

Thus,

in

the very

least,

a

reasoned

analysis

is

required, indicating

that

prior policies

and

standards

are being deliberately changed

and not casually ignored.

Chemetco, Inc.

v. Pollution

Control Board,

140

Ill.

App.

3d 283, 288-

289, 488 N.E.2d 639,

644

(5th

Dist.

1986).

Generally, the interpretation ofa

statute by an administrative body charged with applying

the statute

should be given great weight; this rule is usually applied in instances where the statute

is

ambiguous

and

where

the

interpretation

by

the administrative

body

is

long-continued

and

9

---

consistent so that the legislature may be

regarded as having concurred in

it.

Moy v. Department

of Registration and Education, 85 Ill. App.

3d 27, 31, 406 N.E.2d 191,

195

(1st

Dist.

1980).

That

rule, however, does not state that in no

circumstance should a change in interpretation result in a

total

lack

of deference

to

the

administrative

agency’s

amended

or

revised

interpretation

of a

statute.

Contrast those

cases

with holdings by the United

States

Supreme Court.

When a court

reviews

an

agency’s construction of a

statute

it administers,

two

questions

are

raised.

First

is

whether the legislative

branch has directly spoken to the precise question at issue;

if so, then the

clear intent should be followed.

But if there is no

direct answer to the question at issue,

and the

statute is

silent or ambiguous on the

issue, the court is then faced with the question of whether

the agency’s answer

is

based on a permissible

construction of the statute.

Chevron,

U.S.A.

v.

NRDC, 467 U.S.

837, 842-843,

104 S.Ct. 2778, 278 1-2782 (1984).

The Supreme Court noted that it has long recognized that considerable weight should be

accorded

to

an

executive

department’s

construction

of a

statutory

scheme

it

is

entrusted

to

administer.

Id., 467 U.S.

at 844,

104 S.Ct. at 2782.

But the

Court has also

clearly rejected the argument that an agency’s interpretation is not

entitled to

deference because it represents a sharp break from prior interpretations of the statute

in

question.

The

Supreme

Court

has

held

that

a

revised

interpretation

deserves

deference

because

an

initial

agency

interpretation

is

not

instantly

carved in

stone,

and the

agency is

not

required to

establish rules

of conduct to

last

forever.

Rust v.

Sullivan,

500 U.S.

173,

186,

111

S.Ct.

1759, 1769 (1990);

Chevron, 467 U.S. at 862,

104 S.Ct.

at 2791.

Therefore,

an

authority

no

less

than

the

Supreme

Court

has

recognized

that

an

administrative agency

is not only entitled to

revise an interpretation of a statute with which it is

10

---

charged to administer, but also that such revisions are entitled to deference by a reviewing court.

Thus, the Illinois

EPA’s interpretation as articulated and applied in this instance should be

given

deference by the Board.

However, regardless of the level ofdeference the Board ultimately finds

is warranted, the Illinois EPA’s final decision should still be affirmed since the interpretation on

which it was based is c’orrect.

IV.

ILLINOIS EPA’S INTERPRETATION OF SECTION 39.2(F) IS

CORRECT

It is certain

that any interpretation ofthe Act should be based, if at

all possible, upon the

clear

language of the provision

in

question.

The provision

should be read in the context ofthe

Act as a whole,

and should

be liberally construed to give effect to

all words

and to

the purpose

behind the provision itself.3

In this case, the language in question provides as

follows:

A local

siting approval

granted under

Section

39.2

*

*

*

for a sanitary landfill

operation

*

*

*

shall expire

at the

end of

*

*

*

3

calendar

years

from the

date

upon which

it was granted, and

unless

within thatperiod the applicant has made

application to theAgencyfor a permit to develop the site.

(Emphasis added.)

Section

39.2(f) of the

Act.

Looking

at this

language, the focus of the Illinois

EPA’s attention,

and of the

Board’s attention now, is the proviso that acts to prevent the expiration oflocal siting

approval.

The Illinois EPA had interpreted this

language to mean that

if any application for a

development permit

was

submitted

to

the

Illinois

EPA within the three calendar year window

before

siting

approval

expires,

regardless

of

what

the

outcome

of the

application

was

(i.e.,

approval or denial), then the siting approval was effectively “saved” from expiration.

The

interpretation

followed

by

the

Illinois

EPA

in

this present

situation, one followed

after

receiving

an

interpretation

from

the

Illinois

AGO,

is

that

the

permit

application

for

development that must include proof of local

siting

approval

must

be

submitted to

the

Illinois

~It should be noted that this particular provision of the Act

has

never been the subject of litigation or review by the

Board, thus

it is one of first impression.

11

---

EPA within the three

calendar year window.

The distinction

is

that

a

previous

submittal of a

development permit application does not act to preserve the siting approval.

Thus,

in

the case now before the Board, the

Petitioner received local

siting

approval in

November

1996.

In April ‘2003, the

Petitioner submitted

the subject permit

application.

This

application,

which

inëluded as its

requisite proof of local

siting

approval the November

1996

approval,

was submitted

six

and

a half calendar

years

after

the

siting approval

was

granted.

There

is

no

dispute

that

the

subject permit

application

was

submitted

well

beyond

the

time

otherwise allowed by Section 3 9.2(f) ofthe Act to prevent the expiration oflocal siting approval.

The backdoor sought by

the Petitioner to

avoid a finding that local

siting approval expired was

that

a previous

permit

application

was submitted

within the time

allowed

and,

as

a result,

the

local siting approval did not expire.

There

are a

number of flaws with

this

argument.

First

and

foremost, it allows

for the

possibility of submission of a “sham” permit application within three calendar years

that would

act

to

preserve

local

siting

approval.

Under the

Petitioner’s

interpretation,

an

entity

could

receive local siting approval, then within three calendar years file a sham permit application that

could not be approved.

Based on that sham application,

the entity would have preserved its grant

oflocal siting approval in perpetuity, since there would be no windowof expiration.

Also, the Petitioner’s interpretation reads

language into the Act that is not found.

For the

Petitioner’s argument to prevail, the language

in question must read, “unless

within that period

the applicant has made ~y

application to the Agency for a permit to

develop the site.”

The Act

must be

read

to

mean any

application of any kind,

regardless of whether that

application was

approved or denied, can

serve to halt the expiration of local siting approval.

Unfortunately for

the Petitioner, the Act does not so read.

Similarly, the Petitioner cannot argue that the fact that it

12

---

actually

received

a

development permit

based

on

a

timely

submitted

application

(i.e.,

within

three

calendar years

of the siting approval)

acts to

prevent

expiration of the

siting

approval,

because to

do

so would

read further

words

not

found

in

Section

39.2(f).

The

language

in

question

would

then

have

to

read,

“unless

within that

period

the

applicant

has

made gpy

successful application~’

to the Agency for a permit to develop the site.”

That reading strains ever

further the otherwise clear language of the Act.

The purpose behind the imposition of a window upon which siting approval would expire

is clearly to encourage the timely acting upon a siting approval.

The “evil” to be remedied

is the

possibility

that

an

entity

will

take

the

minimal

steps

necessary

(i.e.,

submission

of a

sham

application) to once and for all prevent the expiration oflocal

siting approval.

Here, that would

allow

for the

submission

of a

permit

application

over

six

years

after

the

underlying

siting

approval was granted.

Certainly, that was exactly the scenario that was intended

to be avoided.

The Petitioner argues that the Illinois EPA seeks to impose a new statute of limitations that is not

found in the Act.

Petitioner’s brief, p.

10.

To the contrary, the Illinois EPA seeks to enforce the

time

period currently set

forth in

the Act.

It is

the Petitioner that seeks to

avoid that period by

reading into the Act words and circumstances that do not exist.

Consider

the possibility

that

the Petitioner’s

arguments

are taken as

being

meritorious.

The Petitioner argues that a previously-issued development permit, which was based on

a timely

submitted

permit

application,

allows

for

the

future

submissions

of

development

permit

applications

in

perpetuity

without

the

need

to

ever

seek

new

local

siting

approval.

But

circumstances

change,

communities

change,

and

permitted

facilities

change.

The

General

Assembly

rightly

sought

to

allow

local

units of government

to

maintain

consistent

and

timely

13

---

oversight of landfill development within their local

boundaries,

and

the Petitioner’s

arguments

would defeat that intent.

The Petitioner would claim that it has been diligent in its pursuit of a permit,

and that it

has almost continuously had’ an application on file with the Illinois EPA.

While those facts may

be

true, the only relevant consideration is

whether the subject permit application

was submitted

within three calendar

windows of the siting

approval.

Since

it was not, there

is

no

way the

Illinois EPA could approve the permit sought.

The Illinois

EPA’s reading ofthe Act

is

consistent with the purposes of the Act and the

imposition

of

a

time

certain

for

acting

upon

local

siting

approval.

The

Illinois

EPA’s

interpretation does not

require

a

strained reading

of the

Act,

nor

does

it

result

in

an

overly

restrictive reading ofthe Act, since it would

be consistent with the General Assembly’s finding

that three calendar years

is

a sufficient

time

to

file all

necessary permit

applications based

on

siting approval.

If a permit application

is

sought

outside that window that requires

local

siting

approval, it

is

clear the

General Assembly

intended that

an

applicant must return

to

the siting

body to request additional

siting approval.

This would

allow for the local unit of government to

continue to

maintain the

oversight and

control ofthe

development of landfills

as contemplated

by the whole concept oflocal siting approval.

The Illinois

EPA acknowledged that the interpretation now being taken

was not

always

followed.

However,

as the

Supreme Court

has acknowledged, and as the Board must note, the

Illinois EPA can and sometimes

should revise its interpretations ofthe Act.

Here, the receipt of

an

interpretation from

the

Illinois

AGO,

the

state’s

legal

officer,

resulted

in

the

change of

interpretation.

And

while

the

Petitioner

repeats

several

times

that

the

Illinois

EPA’s

interpretation was followed for a number ofyears, the Petitioner did not present any testimony or

14

---

evidence that would

demonstrate exactly how many times that interpretation was dispositive in a

permit

decision.

In other words,

though the Illinois

EPA may have taken that interpretation in

the past,

there

is

no

evidence that

the

interpretation

was relevant

in

anything

other than the

present situation.

V.

CONCLUSION

Based

on

the

arguments

made

herein,

and

the

fact

that

the

Illinois

EPA

correctly

interpreted and applied Section

39.2(f) ofthe Act, the Illinois EPA respectfully requests that the

Board enter an

order affirming the denial of the subject permit

application.

The Illinois EPA’s

interpretation

is

consistent

with the plain wording of the Act,

serves

to meet the

intent of the

General Assembly,

and

was done

following input by the Illinois AGO.

The Petitioner has not

met its burden in this

case, as the interpretation espoused by it is

inconsistent with the Act

and

the

relevant facts

and

dates.

For these

reasons,

the

Board

should

affirm the

Illinois

EPA’s

decision dated December

5,

2003.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

JohnJ. Kim

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

.P.O. Box

19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: April

5,

2004

15

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at law,

hereby certify that on April

5,

2004,

T

served true and

correct

copies of a RESPONSE TO PETITIONER’S

BRIEF, by

telefaxing and by placing

true

and

correct

copies

in properly sealed

and

addressed

envelopes

and

by

depositing

said

sealed

envelopes in

a U.S.

mail drop box located within Springfield,

Illinois, with

sufficient First Class

Mail postage affixed thereto, upon the following named persons:

Dorothy

M.

Gunn, Clerk

Illinois Pollution Control Board

James R.

Thompson Center

100 West

Randolph Street

Suite 11-500

Chicago, IL 60601

Fax:

312-814-3669

Carol Sudman,

Hearing Officer (HandDelivery)

Illinois Pollution Control Board

1021

North GrandAvenue, East

P.O.

Box

19274

Springfield, IL

62797-9274

Stephen F.

Hedinger

Hedinger Law

Office

2601

South Fifth Street

Springfield, IL

62703

Fax:

217-523-4366

Brian E. Konzen

Lueders, Robertson & Kon,zen,

LLC

1939

DelmarAvenue

P.O. Box 732

Granite City, IL

62040-0735

Fax:

618-876-4534

Rod Wolfe, State’s Attorney

Saline

County State’s Attorney Office

Saline

County Courthouse

10 East Poplar Street

Harrisburg, IL

62946

Fax:

618-253-7160

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

JohncrKim

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

L