BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
VILLAGE OF ROBBINS and, ALLIED
)
CLERK’S OFFICE
WASTE TRANSPORTATION, INC.
)
APR
292004
Petitioners
Pollution
STATE OF
Control
ILLINOIS
Board
vs.
)
CaseNo. PCBNo.
04-48
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
TO:
All Counsel ofRecord (see attached service list)
PLEASE TAKE NOTICE
that on April 28, 2004, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, an original and nine copies
of the Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary
Judgment, copies ofwhich are attached hereto.
Dated: April J~
,
2004
Respectfully Submitted,
VILLAGE OF ROBBINS and ALLIED WASTE
TRANSPORTATION, INC., Petitioners
By: Hinshaw & Culbertson
Charles F. Helsten
Hinshaw and Culbertson
One of Attorneys
/
100 Park Avenue
P.O. Box 1389
Rockford, IL
61105-1389
815-490-4900
This document utilized 100
recycled paper products
70389444v1 820753
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~CE~VEO
OF THE STATE OF ILLINOIS
LEAK’S OFFICE
VILLAGE OF ROBB1NS and ALLIED
)
APR 29 2004
WASTE TRANSPORTATION, INC.,
)
POII~ti~~
STATE OF
Control
ILLINOIS
Board
Petitioners,
)
)
vs.
)
CaseNo. PCBNo. 04-48
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
NOW COME the Petitioners, Village of Robbins, Illinois, and Allied Waste
Transportation, Inc., by and through undersigned counsel of record, and hereby respectfully
submit their Memorandum of Law in Support of their Motion for Summary Judgment for
modification of a solid waste management facility permit and, in support thereof, state as
follows:
INTRODUCTION
On February 9, 1993, the Board of Trustees ofthe Village ofRobbins, in Ordinance No.
2-9-93-A, approved the application of Robbins Resource Recovery Company for a “regional
pollution control facility” in the Village ofRobbins. (R. 064-073). That resolution is completely
devoid of any restrictions on the use or operations of the “regional pollution control facility.”
(Id.)
Based on permits issued by the Illinois Environmental
Protection Agency (“IEPA”), that
“regional pollution control facility” was permitted to perform the same operations as a transfer
station, with the added component of incineration. In fact, the operating permit issued by the
JEPA specifically provides that the facility shall participate in comprehensive waste processing
efforts by collecting, recycling and diverting waste, as well as processing waste for removal of
certain materials for recycling or off-site disposal. See IEPA Operating
Permit
No. 1997-072-
OP, p. 17 (June 2, 1997). Additionally, the original
and
supplemental permits issued to Robbins
Resource specifically provide that the pollution control facility be allowed to
receive waste,
handle waste, store waste for
certain
periods of time, screen, separate,
segregate and
sort waste
materials, transfer waste under certain circumstances
and conditions,
and
process
and
convert
waste materials to different forms. See Permit Nos. 1997-072-OP (June 2, 1997); 1998-030-DE
(April 6, 1998); 1998-078-DE (June
3, 1998); 1998-208-OP/SUP (July 31, 1998); 1998-314-
DE/SUP (June 10, 1999); 1998-313-DE/SUP (Oct. 14, 1999).
Several years after siting approval was granted to Robbins Resource Recovery, the
Village of
Robbins contracted with Allied Waste Transportation, Inc. (“Allied”), an
Illinois
Corporation, for the operation of the facility as a transfer station. In conjunction with that
agreement, on February 13, 2003, Allied entered into a Siting Authority Agreement with the
Village of Robbins, specifically setting forth that Allied be allowed to use the
formerly approved
pollution control facility “for waste receipt and
handling, waste processing, waste solidification,
waste load consolidation and to operate as a solid waste transfer station (for both non-hazardous
special waste and Municipal Solid Waste).” (R.076). That agreement memorializes that the
siting approval previously granted to the pollution control facility by the Village of Robbins is
“sufficiently broad to cover the proposed use ofthe Property and the Facility, and that the present
proposed use can be undertaken without the necessity of additional local siting approval
procedures.” (R.076).
Furthermore, on February 13, 2003, Irene Brodie, the current Mayor of the Village of
Robbins and the Chairperson of the committee that granted siting approval for the pollution
control facility in the Village of Robbins in 1993, on behalf of the Board of Trustees of the
2
Village of Robbins, signed an affidavit. (R.
075).
That affidavit establishes that the Robbins
Recycling and Transfer Station had received local siting approval by the Village of Robbins
Board of Trustees on February 9, 1993 to perform the functions of a “waste transfer station.”
(Id.)
Allied now seeks to operate a waste transfer station at the site of the approved facility in
the Village of Robbins. The Illinois Environmental Protection Agency has denied Allied’s
Application for Permit to modify a solid waste management site, and Allied has appealed that
determination to this Board. For the reasons set forth herein, this Board should grant summary
judgment to Allied and grant its Application for Permit to modify the solid waste management
facility permit granted in 1993.
ARGUMENT
Allied should be granted summary judgment and awarded its Application for Permit as a
matter oflaw. As explained by this Board, summary judgment is appropriate when there are no
genuine issues of fact and the movant is entitled to judgment as a matter of law.
Williamson
Adhesives, Inc. v. EPA,
PCB 91-112 (Aug. 22, 1991);
Caruthers v. B.C. Christopher & Co., 57
Ill.2d 376, 380, 313 N.E.2d
457,
459 (1974).
In this case, there is no genuine issue of material fact that a modification of Petitioner’s
solid waste facility permit should have been granted, as no violation of the Act would occur by
granting the permit. To the contrary, the Act would actually be violated by not granting
modification ofPetitioner’s permit.
It is well-settled that in a proceeding such as this, “the sole question before the Board is
whether the applicant proves that the application, as submitted to the Agency, demonstrated that
no violation of the Act would occur if the permit was granted.”
Saline County Landfill, Inc. v.
3
illinois Environmental Protection Agency,
PCB 02-108, slip op. at 9 (May 16, 2002);
quoting
Centralia Environmental Services, Inc. v. IEPA,
PCB 89-170, slip op. at 9
(Oct.
25,
1990).
Based on the facts ofthis case, it would not be a violation ofthe Act to grant the permit; rather, it
would be a violation of the Act not to grant
the
permit, as modification of the permit after
original siting approval is specifically provided for under section
39.2(e-5)
of the Illinois
Environmental Protection Act (“Act”).
See
415 ILCS
5/39.2(e-5).
Section
39.2(e-5)
ofthe Act
provides:
Siting approval obtained pursuant to this Section is transferable and may be
transferred to a subsequent owner or operator. In the event that siting approval
has been transferred to a subsequent owner or operator, that subsequent owner or
operator assumes and takes subject to any and all conditions imposed upon the
prior owner or operator by the county board of the county or governing body of
the municipality pursuant to subsection (e). However, any such conditions
imposed pursuant to this Section
may be modified
by agreement between the
subsequent owner or operator and the appropriate county board or governing
body. Further, in the event that siting approval obtained pursuant to this Section
has been transferred to a subsequent owner or operator, that subsequent owner or
operator assumes all rights and obligations and takes the facility subject to any
and all terms and conditions and any existing host agreement between the prior
owner and operator and the appropriate county board or governing body.
415 ILCS
5/39.2(e-5)
(emphasis added).
In this case, there is no dispute that the facility in question was granted siting approval by
the Village of Robbins because, as set forth above, the Board of Trustees of the Village of
Robbins approved the application of Robbins Resource Recovery Company for a “regional
pollution control facility” in the Village of Robbins on February 9, 1993. (R. 064-073). The
siting approval granted by the Village ofRobbins was, by its very term, approval ofa “pollution
control facility in the Village ofRobbins.” (R.064) (emphasis added).
The Village of Robbins’ use of the term “pollution control facility” in their approval of
the facility establishes that the Village intended for the facility to operate in many different
capacities. By its very terms, the definition of “pollution control facility” includes “any waste
4
storage
site,
sanitary
landfill, waste disposal site, waste transfer station, waste
treatment facility
or
waste incinerator.”
415 ILCS 5/3.330. Therefore, by not providing
a more specific term to
describe
the facility, the Village of Robbins clearly intended the facility to act
in
a number of
different capacities, including as a waste transfer station.
Moreover, it is also clear that the facility was intended to serve as a waste transfer station,
as the original Application for Site Location Approval specifically provides that the facility is to
treat
and consolidate certain waste, as well as separate, remove and transfer recyclables and
other types of materials.
These activities then specifically and squarely fit the definition of a
“transfer station,” which is specifically defined as “a site or facility
that accepts waste for
temporary storage or consolidation
and
further transfer to a waste
disposal treatment or storage
facility.” 415 ILCS 5/3.500.
The fact that the resolution entered into by the Village of Robbins does not specifically
identify the facility as
a “transfer station” should not be determinative, because the activities to
be performed by the facility clearly encompassed transfer station activities. In fact, the permits
granted by the Illinois Environmental Protection Agency provided that the pollution control
facility was penTnitted to receive waste, handle waste, store waste for certain periods of time,
screen, separate, segregate and sort waste materials, transfer waste under certain circumstances
and conditions and process and convert waste materials to different forms.
See
IEPA permits. In
addition, it is clear that the facility was approved to act as a waste transfer station based on the
affidavit signed by the Mayor of the Village of Robbins, which specifically provides that the
facility was granted siting approval to act as a waste transfer station. (R.
075).
Finally, there is no dispute that Allied entered into a Siting Authority Agreement with the
Village ofRobbins, specifically setting forth that Allied be allowed to use the formerly approved
5
pollution control facility as a waste transfer station. (R.076). That agreement specifically
provides that the siting approval previously granted to the pollution control facility by the
Village of Robbins is “sufficiently broad to cover the proposed use of the Property and the
Facility, and that the present proposed use can be undertaken without the necessity of additional
local siting approval procedures.” (R.076).
As set forth in section
39.2(e-5)
of the
Act, the Village of Robbins was specifically
authorized to enter into the Siting Authority Agreement with Allied, the subsequent owner and
operator of the pollution control facility, to modify any and all conditions imposed on the
previously approved pollution control facility, as the Village of Robbins has properly done in
this case. Pursuant to section
39.2(e-5),
it is the siting authority that has the sole power and
responsibility to modify any terms and conditions oforiginal siting approval with a subsequent
owner ofa pollution control facility, which is exactlywhat the Village ofRobbins did through its
agreement with Allied, which specifically provides that Allied may now use the pollution control
facility primarily as a transfer station. (R. 076-80).
It is well-settled that is the local siting authority that is responsible for determining the
scope ofsiting approval granted to a pollution control facility.
See Saline CountyLandfill, Inc. v.
illinois Environmental Protection Agency,
PCB 02-108 (May 16, 2002). In
Saline County,
the
Illinois Pollution ControlBoard made abundantly clear that it is the duty ofthe siting authority to
determine whether a change in a facility is consistent
with the local siting approval granted to a
facility.
Id.,
slip op. at 18-19. In this case, the Village of Robbins, through the affidavit signed
by the Mayor, has made clear that its siting authority granted in 1993 was consistent with the
solid waste
transfer station proposed by Allied.
6
There can be no dispute that section 3
9.2(e-5)
governs the circumstances ofthis case, and
requires, as a matter of law, that Petitioner’s permit be modified because siting approval of the
subject pollution control facility has been transferred to a
new entity and that
new entity has
entered into an agreement with the siting authority to operate as a transfer station. This is clearly
a situation contemplated by section 39.2(e-5), and, thus, section
39.2(e-5)
requires the
modification ofpermit requested by Petitioners and expressly agreed to by Village of Robbins,
the local
siting authority.
CONCLUSION
WHEREFORE, the Petitioners, VILLAGE OF ROBBINS and ALLIED WASTE
TRANSPORTATION, INC. request this Honorable Board grant
its Motion for
Summary
Judgment and for such other and further relief as this Honorable Board deems just and
appropriate in the circumstances.
4 ~
!o~f
Respectfully Submitted,
VILLAGE OF ROBB1NS and ALLIED WASTE
TRANSPORTATION, INC., Petitioners
By:
lage of Robbins
illiam H. Mansker
Village Attorney
Dated:
By:
One of Attorneys
7
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
VILLAGE OF ROBB1NS
3327 West
137th
Street
Robbins, Illinois 60472
708-385-8940
This document utilized 100
recycled paper products
BEFORE THE ILLINOIS POLLUTION CONTROL BC~C E ~V E 0
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
VILLAGE
OF
ROBBINS and ALLIED
)
APR
292004
WASTE TRANSPORTATION, INC.,
)
STATE OF ILLINOIS
)
Pollution Control Board
Petitioners,
)
)
vs.
)
CaseNo. PCBNo. 04-48
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR SUMMARY
JUDGMENT
NOW COME
the Petitioners, Village of Robbins, Illinois,
and Allied Waste
Transportation, Inc., by and through undersigned counsel of record, and hereby respectfully
move this Board to grant their Motion for Summary Judgment for modification of a solid waste
management facilitypermit and, in support thereof, state as follows:
1.
Summary judgment is appropriate when there are no genuine issues of fact and
the movant is entitled to judgment as a matter of law.
Williamson Adhesives, Inc. v. EPA,
PCB
91-112 (Aug. 22, 1991);
Caruthers v. B.C. Christopher & Co., 57
Ill.2d 376, 380, 313 N.E.2d
457, 459 (1974).
2.
In this case, there is no
genuine
issue of material fact that a modification of
Petitioner’s solid
waste facility permit
should have been granted, as no violation ofthe Act would
occur by granting the permit. In fact, quite to the contrary, the Act is actually violated by ~pj
granting modification of Petitioner’s permit.
3.
In a proceeding such as this, “the sole question before the Board is whether the
applicant proves that the application, as submitted to the Agency, demonstrated that no violation
of the Act would occur if the permit was granted.”
Saline County Landfill, Inc. v. illinois
70401851v1 820753
Environmental Protection Agency,
PCB 02-108, slip op. at 9 (May 16, 2002);
quoting Centralia
Environmental Services, Inc. v. IEPA,
PCB 89-170, slip op. at 9 (Oct.
25,
1990).
4.
It would not be a violation of the Act to grant the permit; rather, it would be a
violation of the Act not to grant the permit, as modification ofthe permit after original siting is
specifically provided
for under section
39.2(e-5). See
415 ILCS
5/39.2(e-5).
5.
Section
39.2(e-5)
ofthe Act provides in pertinent part:
Siting approval obtained pursuant to this Section is transferable and may be
transferred to a subsequent owner or operator. In the event that siting approval
has been transferred to a subsequent owner or operator, that subsequent owner or
operator assumes and takes subject to any and all conditions imposed upon the
prior owner or operator by the county board of the county or governing body of
the municipality pursuant to subsection (e). However, any such conditions
imposed pursuant to this Section
may be modified
by agreement between the
subsequent owner or operator and the appropriate county board or governing
body.
415 ILCS
5/39.2(e-5)
(emphasis added).
6.
There is no dispute that the facility in question was granted siting approval by the
Village of Robbins. On February 9, 1993, the Board of Trustees ofthe Village of Robbins, in
Ordinance No. 2-9-93-A, approved the application of Robbins Resource Recovery Company for
a regional pollution control facility in the Village ofRobbins. (R. 064-073).
7.
The siting approval granted by the Village of Robbins was, by its very term,
approval of a “pollution control facility in the Village of Robbins.” (R.064) (emphasis added).
That pollution control facility was permitted to receive waste, handle waste, store waste for
certain periods oftime, screen, separate, segregate and sort waste materials, transfer waste under
certain circumstances and process and convert waste materials to different forms.
8.
It is clear that the Robbins facility, labeled a pollution control facility, contained a
transfer station component. In fact, the very definition of “pollution control facility” includes
2
70401851v1 820753
“any waste storage site, sanitary landfill, disposal site, waste transfer station, waste treatment
facility or waste incinerator.” 415 ILCS 5/3.330 (emphasis added).
9.
Furthermore, the activities performed at the facility, as set forth in the Application
for Site Location Approval, establish that the facility acted as a transfer station because the
Robbins facility “acceptedj waste for temporary storage or consolidation and further transfer to
a waste disposal, treatment or storage facility.” 415 ILCS
5/3.500.
Therefore, even though the
Village of Robbins’ Resolution did not specifically use the term “transfer station,” it is clear that
the Village intended the facility to operate in part as such.
10.
There is no question that the siting authority granted to the facility in 1993
allowed the facility to operate as a waste transfer station, as the Mayor ofthe Village ofRobbins,
on behalf of the Board of Trustees, signed an affidavit, indicating the original siting approval
granted in February 9, 1993 approved the operation of the facility in part as a “waste transfer
station.”
(R.075).
11.
There is also no dispute that several years after siting approval was granted to
Robbins Resource Recovery, the Village of Robbins contracted with Allied Waste
Transportation, Inc. (“Allied”), an Illinois Corporation, for the operation of the facility as a
transfer station. In conjunction with that agreement, Allied entered into a Siting Authority
Agreement with the Village of Robbins, specifically setting forth that Allied be allowed to use
the formerly approved pollution control facility as a waste transfer station. (R.076). That
agreement memorializes that the siting approval previously granted to the pollution control
facility by the Village ofRobbins is “sufficiently broad to cover the proposed use of the Property
and the Facility, and that the present proposed use can be undertaken without the necessity of
additional local siting approval procedures.” (R.076) (emphasis added).
3
70401851v1 820753
12.
As explicitly provided for in section 3
9.2(e-5)
ofthe Act, the Village ofRobbins
was specifically authorized to
enter
into the Siting Authority Agreement with Allied, the
subsequent operator of the pollution
control facility, to modify any and all conditions imposed on
the previously approved pollution control facility, as the Village ofRobbins has properly done in
this case.
13.
Pursuant to section
39.2(e-5)
it is the siting authority that has the sole power and
responsibility to modify any terms and conditions of original siting approval with a subsequent
owner of a pollution control facility, which is exactly what the Village ofRobbins did through its
agreement with Allied, which specifically provides that Allied may now use the pollution control
facility primarily as a transfer station, all consistent with the siting approval original provided to
the facility in 1993. (R. 076-80).
14.
It is well-settled that the local siting authority is responsible for determining the
scope ofsiting approval granted to a pollution control facility.
See Saline County Landfill, Inc. v.
illinois Environmental Protection Agency,
PCB 02-108 (May 16, 2002). In this case, the Village
ofRobbins has made clear that its siting authority granted in 1993 was broad enough to cover
Allied’s waste transfer station.
15.
There can be no dispute that section
39.2(e-5)
governs the circumstances of this
case, and requires, as a matter of law, that Petitioner’s permit be modified because siting
approval of the subject pollution control
facility has been transferred to a new entity and that new
entity has entered into an
agreement
with the siting authority to operate as a transfer station.
16.
This is clearly a situation contemplated by section 39.2(e-5), and, thus, section
39.2(e-5) requires the modification requested by Petitioners and expressly agreed to by Village
ofRobbins, the local siting authority.
4
70401851v1 820753
WHEREFORE, the Petitioners, VILLAGE OF ROBBINS and ALLIED WASTE
TRANSPORTATION, INC. request this Honorable Board:
A.
Grant its Motion for Summary Judgment; and
B.
For such other and further relief as this Honorable Board deems just and
appropriate in 91e circumstances.
q/L~ /~(
Respectfully Submitted,
HINSHAW AND CULBERTSON
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
VILLAGE OF ROBBINS
3327 West 137th Street
Robbins, Illinois 60472
708-385-8940
VILLAGE OF ROBBINS and ALLIED WASTE
TRANSPORTATION, INC., Petitioners
Dated:
By:
Culbertson
Charles F. Helsten
One of Attorneys
Village Attorney
This document utilized 100
recycled paper products
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 of the Illinois Code ofCivil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on April
~
,
2003
,
a copy ofthe foregoing was served upon:
Via UPS Overnight Mail
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
John J.Kim
Renee Cipriano
Special Assistant Attorney General
Division ofLegal Counsel
1021 N. Grand Avenue, East
Springfield, IL 62794-9276
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Chicago,
Illinois, proper postage prepaid, before the hour of5:00 P.M., addressed as above.
HINSHAW & CULBERTSON
100 ParkAvenue
P.O. Box 1369
Rockford,IL 61101
(815)
490-4900
This document utilized 100 recycled paper
70389411v1 820753
