2

incorrect. The Board remands the permit to the Agency and directs the Agency to issue the

requested permit.

 

PROCEDURAL HISTORY

 

On January 8, 2004, SCLI filed a petition for review of a December 5, 2003 Agency

denial of a permit. SCLI challenges the Agency’s determination that SCLI did not have local

siting approval for the landfill expansion sought in the permit application. The landfill is located

Harrisburg, Saline County. On February 19, 2004, the Agency filed the record in this proceeding

(R.). Hearing was held before Board Hearing Officer Carol Sudman on March 3, 2004 (Tr.).

 

On March 29, 2004, SCLI filed a motion to file a corrected brief. Neither the Agency nor

Saline County has filed a response to the motion and pursuant to 35 Ill. Adm. Code 101.500(d),

any objection to granting the motion is waived. The Board grants the motion to file a corrected

brief, all citations in this opinion and order are to the corrected brief (Pet. Br.). On April 5, 2004,

the Agency (Ag. Br.) and Saline County (SC Br.) filed their briefs.

 

PRELIMINARY MATTERS

 

On March 2, 2004, the Agency filed a motion for order of protection and privilege log

(MOP) with the hearing officer concerning items included in the Agency’s record. The Agency

sought protection for seven documents specified by date in the motion. MOP at 2. SCLI filed a

response on March 4, 2004 (Resp. MOP) and the Agency filed a reply on March 5, 2004. At

hearing, the Board’s hearing officer ruled that “the documents in question are covered by the

attorney-client and work product privilege, and the inadvertent disclosure does not waive the

privilege.” Tr. at 21.

 

Although the parties have not sought Board review of the hearing officer’s decision by

motion, the Agency in effect seeks to have the hearing officer’s decision reviewed by the Board

in the Agency’s brief. The Agency’s brief bases arguments on correspondences from the Illinois

Attorney General’s Office (AGO). The Agency sought protection for the AGO’s

correspondences in the motion for protection.

See

Ag. Br. at 7, 11, and 14. Thus, the Agency is

relying on documents that the hearing officer had ruled were not properly a part of the record.

 

In reviewing the hearing officer’s decision, the Board finds that the hearing officer

incorrectly extended the attorney-client privilege to four documents generated from the AGO’s

office. For the reasons discussed below, the Board finds that the March 10, 2003 letter (R. at

149), the May 15, 2003 letter (R. at 148), the June 11, 2003 letter (R. at 147) and the

December 4, 2003 letter (R. at 7) do not meet the parameters of attorney-client privilege.

Therefore, the Board lifts the protection from those documents and will include those documents

in the record. The Board further finds that the protection of those documents by the hearing

officer order was harmless error.

 

The four letters are all from Mr. Tom Davis with the Environmental Bureau of the AGO

and are addressed to various Agency employees. The March 10, 2003 letter is addressed to Ms.

Joyce Munie manager of the bureau of land permit section for the Agency and indicates that Mr.

---

 

3

Davis received an inquiry from Saline County State’s Attorney Rod Wolfe. R. at 149. The letter

further states that the passage of time would preclude a granting of a developmental permit and

asks that Mr. Davis be advised as to what type of permit SCLI was seeking.

Id

. The May 15,

2003 letter was also addressed to Ms. Munie and is nearly identical to the March 10, 2003 letter.

R. at 148. The June 11, 2003 letter is addressed to Mr. Scott Phillips Deputy Counsel, Division

of Legal Counsel with the Agency. R. at 147. The June 11, 2003 letter stated that two prior

letters had been sent to Ms. Munie and asks for a reply to Mr. Davis’s inquiry. R. at 147. The

December 4, 2003 letter is addressed to Mr. John Kim, assistant counsel with the Division of

Legal Counsel at the Agency and indicates that the AGO’s position is that the local siting

approval has expired. R. at 7.

 

One purpose of the attorney-client privilege:

 

is to encourage full and frank communication between attorneys and their clients

and thereby promote broader public interests in the observance of law and

administration of justice. The privilege recognizes that sound legal advice or

advocacy serves public ends and that such advice or advocacy depends upon the

lawyer being fully informed by the client. Balla v. Gambro, Inc. 164 Ill. 2d 492,

594 N.E.2d 104, 109-110 (1991), citing Upjohn Company v. United States 449

U.S. 383, 389 (1981).

 

“Nevertheless, because the privilege effectively withholds relevant information from the

factfinder, it should be applied only when necessary to achieve its purpose.” Monfardini v.

Quinlan, 2004 Westlaw 533132 (N.D.Ill. Mar. 15, 2004), citing Fisher v. United States, 425 U.S.

391, 403 (1976). The attorney-client privilege applies “to communications made in confidence

by client seeking legal advice of any kind to professional legal advisor acting in that capacity.”

Regan v. Garfield Ridge Trust & Savings Bank 220 Ill. App. 3d 1078, 581 N.E.2d 759, 768 (2nd

Dist. 1991), citing Cesena v. DuPage County, 201 Ill. App. 3d 96, 103 (2nd Dist. 1990). In this

instance, the communications from the AGO to the Agency are not in the nature of

communications made in confidence in response to a client seeking legal advice, protection of

the documents is not necessary to encourage full and frank communication between an attorney

and client, and the AGO initiated the contact with the Agency in response to an inquiry by a third

party.

 

The nature of the communication is revealed in other documents in the Agency’s record.

On September 22, 2003, Steve Hedinger wrote a letter addressed to both Mr. Dan Merriman of

the Agency’s Division of Legal Counsel and Mr. Davis. In that letter, Mr. Hedinger explained

the Saline County State’s Attorney’s position that local siting approval had occurred over seven

years ago and therefore should have expired. R. at 15. On September 24, 2003, Mr. Davis wrote

a letter to Mr. Merriman indicating that the AGO shared the concerns articulated in the letter

from Mr. Hedinger. R. at 145. This letter was not one of the correspondences which the Agency

sought protection for in the motion.

See

MOP at 2.

 

The contents of the September 24, 2003 letter indicate that the Agency was being advised

of AGO concerns based on an independent AGO investigation and the September 22, 2003 letter

by Mr. Hedinger. R. at 145. Mr. Davis goes on to recommend that the Division of Legal

---

 

4

Counsel at the Agency provide a legal assessment to the Bureau of Land in this proceeding.

Id

.

Thus, the letter establishes that the Agency was offered an opinion by the AGO as a result of

communications from a third party rather than the Agency itself seeking legal advice.

Furthermore, the letter recommends that the Bureau of Land seek legal advise from the

Agency’s

own

Division of Legal Counsel. Thus, the AGO’s communications to the Agency are not in the

nature of an attorney advising a client but in the nature of an officer of the State advising an

agency of the State of potential concerns. Therefore, the Board finds that the communications on

the issue of local siting approval are not subject to protection under the attorney-client privilege.

 

The Board also finds that the protection extended to the communications from the AGO

to the Agency is however harmless error. Even though SCLI argued that the communications

lacked privilege (SCLI did not include the December 4, 2003 letter in the argument) because of

waiver, the presence of the September 24, 2003 letter in the record was sufficient to direct the

attention of the Board to these issues. The remaining correspondences further reinforce the

information in the September 24, 2003 letter.

 

FACTS

 

The landfill has previously been permitted and received siting approval. R. at 345-360;

Pet. at Attach. On November 21, 1996, the Saline County Board granted landfill siting approval

to SCLI for the landfill expansion in Harrisburg. R. at 345-360. On December 31, 1996, the

Agency issued a permit for the development and operation of the landfill expansion. R. at 234.

 

From October 1999 to December 2001, SCLI submitted application materials to the

Agency for a development permit for landfill expansion. Saline County Landfill, Inc. v. IEPA,

PCB 02-108 (May 16, 2002). In January of 2002, the Agency denied SCLI application for

development permit on the grounds that the waste footprint in the permit application was not the

footprint approved under the local siting. Saline County Landfill, slip op. at 1. The Board

affirmed the Agency’s determination that the footprint of the landfill expansion was not the same

and as a result, SCLI lacked proof of siting approval. Saline County Landfill, slip op. at 19.

 

While the Board was considering PCB 02-108, SCLI had pending before the Agency

another permit application for the landfill expansion. Pet. Exh. 6. On February 7, 2003, SCLI

withdrew the request for lateral expansion.

Id

. On April 4, 2003, SCLI filed the application for

expansion at issue in this proceeding. R. at 316. On December 5, 2003, the Agency denied the

application for expansion of the landfill. R. at 2. The Agency’s sole reason for denial is that the

“application did not provide proof of local siting approval pursuant to Section 39(c) of the Act.

The siting provided in the application has expired.”

Id

.

 

Agency employee, Ms. Munie testified at hearing. Ms. Munie stated that prior to

December 5, 2003, her understanding was that siting was valid for SCLI and that if the permit

were technically valid, the permit could issue. Tr. at 52. Ms. Munie also indicated in a March

12, 2003 letter to Steve Hedinger that the siting was valid. Pet. Exh. 6. Ms. Munie testified that

she made the December 2003 decision to deny the permit; however, she did receive a

recommendation to deny from the Illinois Attorney General’s Office. Tr. at 29-30.

 

---

 

5

STATUTORY AND REGULATORY BACKGROUND

 

Section 39(c) of the Act provides in part that “no permit for development” of a landfill

may be issued by the Agency “unless the applicant submits proof to the Agency” of local siting

approval. 415 ILCS 5/39(c) (2002)

 

Section 39.2(f) of the Act provides that:

 

A local siting approval granted under this Section shall expire at the end of the 2

calendar years from the date upon which it was granted, unless the local siting

approval granted under this Section is for a sanitary landfill operation, in which

case the approval shall expire at the end of 3 calendar years from the date upon

which it was granted, and unless within that period the applicant has made

application to the Agency for a permit to develop the site. In the event that the

local siting decision has been appealed, such expiration period shall be deemed to

begin on the date upon which the appeal process is concluded.

 

Except as otherwise provided in this subsection, upon the expiration of a

development permit under subsection (k) of Section 39, any associated local siting

approval granted for the facility under this Section shall also expire.

 

If a first development permit for a municipal waste incineration facility expires

under subsection (k) of Section 39 after September 30, 1989 due to circumstances

beyond the control of the applicant, any associated local siting approval granted

for the facility under this Section may be used to fulfill the local siting approval

requirement upon application for a second development permit for the same site,

provided that the proposal in the new application is materially the same, with

respect to the criteria in subsection (a) of this Section, as the proposal that

received the original siting approval, and application for the second development

permit is made before January 1, 1990. 415 ILCS 3/29.2(f) (2002).

 

Section 40(a)(1) of the Act provides that:

 

If the Agency refuses to grant or grants with conditions a permit under Section 39

of this Act, the applicant may, within 35 days, petition for a hearing before the

Board to contest the decision of the Agency. 415 ILCS 5/40(a)(1)(2002).

 

STANDARD OF REVIEW

 

After the Agency’s final decision on a permit is made, the permit applicant may appeal

that decision to the Board. 415 ILCS 5/40(a)(1)(2000). The question before the Board in permit

appeal proceedings is whether the applicant proves that the application, as submitted to the

Agency, demonstrated that no violation of the Act would have occurred if the requested permit

had been issued. ESG Watts v. IEPA, PCB 01-63, 64 (consld.) (Apr. 4, 2002); Joliet Sand &

Gravel Co. v. PCB, 163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958 (3rd Dist. 1987), citing IEPA

v. PCB, 118 Ill. App. 3d 772, 455 N.E. 2d 189 (1st Dist. 1983). The Agency’s denial letter

---

 

6

frames the issues on appeal and the burden of proof is on the petitioner. ESG Watts, Inc. v. PCB,

286 Ill. App. 3d 325, 676 N.E.2d 299 (3rd Dist. 1997).

 

It is well-settled that the Board’s review of permit appeals of this type is limited to

information before the Agency during the Agency’s statutory review period, and is not based on

information developed by the permit applicant, or the Agency, after the Agency’s decision.

Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987).

However, it is the hearing before the Board that 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 reasons given by the Agency for

denying such permit by means of cross-examination and the Board the opportunity to receive

testimony which would ‘test the validity of the information (relied upon by the Agency)’.” Alton

Packaging Corp. v. PCB, 162 Ill. App. 3d at 738, 516 N.E. 2d at 280, quoting IEPA v. PCB, 115

Ill. 2d 65, 70 (1986).

 

ISSUE

 

The sole issue in this appeal is whether or not SCLI has local siting approval for the

expansion of the landfill. If the answer is yes, then the application as submitted to the Agency

demonstrates that the issuance of the permit will not violate the Act or Board regulations. If the

answer is no, then the application as submitted to the Agency did not demonstrate that the

issuance of the permit will violate the Act or Board regulations.

 

SCLI’S ARGUMENTS

 

SCLI puts forth five general areas of argument in support of granting a permit to SCLI.

The first is that the basic rules of statutory construction support granting a permit. Second, SCLI

argues that the reversal in the Agency’s interpretation of Section 39(f) of the Act (415 ILCS

5/39(f) (2002) is suspect and not entitled to deference. Third, SCLI asserts that all parties and

the Board agree siting has not expired. Fourth, SCLI maintains that the local siting approval

could not have expired because the Agency had issued a permit for a portion of the locally

approved site. Fifth, SCLI addresses the arguments of Saline County.

 

Basic Rules of Statutory Construction

 

SCLI argues that basic rules of statutory interpretation require the Agency to issue the

requested permit. Pet. Br. at 8. SCLI asserts that the words chosen by the legislature are to be

given their plain meaning and the intent of the legislature should be ascertained primarily from

the language itself. Pet. Br. at 7. SCLI maintains that no rule of statutory construction

authorizes a court to declare that the legislature did not mean what the plain language of statute

imports.

Id

., citing Envirite Corporation v. IEPA, 158 Ill. 2d 210, 632 N.E.2d 1035 (1994).

Furthermore, SCLI opines that a basis rule of statutory construction is that the inclusion of one

limitation is the exclusion of other limitations.

Id

., citing Browning Ferris Industries v. PCB,

127 Ill. App. 3d 509, 468 N.E.2d 1015 (3rd Dist. 1984); Rochelle Disposal Service, Inc. v. PCB,

266 Ill. App. 3d 192, 639 N.E.2d 988 (2nd Dist. 1994).

 

---

 

7

SCLI also concedes that an agency’s interpretation of the agency’s own regulations is

entitled to great weight, and that the interpretations are reviewed

de novo

by a court. Pet. Br. at

7. This general rule of statutory interpretation is usually applied where the language of the

statute is ambiguous and the interpretation by the agency is long and consistent so that the by

inference the argument can be made that the legislature concurred, according to SCLI.

Id

., citing

Moy v. Department of Registration and Education, 85 Ill. App. 3d 27, 406 N.E.2d 191 (1st Dist.

1980). Thus, SCLI maintains that an agency’s interpretation of a statute that conflicts with an

earlier interpretation is entitled to considerably less deference. Pet. Br. at 8, citing Mobile Oil v.

USEPA, 871 F.2d 149 (DC Cir. 1989); General Electric Co. v. Gilbert, 429 US 125, 142 (1976);

NLRB v. Food and Commercial Workers, 484 US 112, 124 (1987); INS v. Cardoza-Fonseca,

480 US 421, 446 (1987); Watts v. Alaska, 452 US 259 (1981).

 

SCLI argues that the language of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002))

is plain and unambiguous and supports SCLI’s position that local siting approval has not expired.

Pet. Br. at 8-9. SCLI asserts that under the plain language of Section 39.2(f) of the Act (415

ILCS 5/39.2(f) (2002)), a local siting approval does not expire if the Agency receives a permit

application to develop the site within three years of the siting approval. Pet. Br. at 9. SCLI

maintains that the Board should follow the plain language of Section 39.2(f) of the Act (415

ILCS 5/39.2(f) (2002)).

Id

. SCLI asserts that to hold that siting expires after an unsuccessful

appeal of an Agency denial or to hold that an application must be continuously on file with the

Agency to preserve local siting approval requires reading into Section 39.2(f) of the Act (415

ILCS 5/39.2(f) (2002)) language that is not there. Pet. Br. at 9.

 

Furthermore, SCLI argues that where the legislature articulates in the plain language of

the statute scenarios of when siting approval can expire, the Board should not read into the

language other scenarios. Pet. Br. at 9. SCLI points out that the legislature specified in Section

39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) that siting expires where the landfill applicant

fails to apply for a development permit within three years from the date that local siting was

approved. Pet. Br. at 9. SCLI also points out that the legislature specified that three years shall

not commence until the conclusion of all appeals. Similarly, SCLI notes that the legislature

specifies that local siting approval may expire upon the expiration of a development permit under

Section 39(k) of the Act (415 ILCS 5/39(k) (2002)). SCLI argues that, given that the legislature

articulates when siting approval may expire, the Board should not read new exceptions into the

Act. Pet. Br. at 9-10.

 

SCLI argues that the record establishes, and the Agency and Saline County agree, that a

development permit application was filed within three years of the local siting approval. Pet. Br.

at 9. SCLI asserts the Board need look no further than the plain language of 39(f) of the Act

(415 ILCS 5/39(f) (2002) to resolve this issue. Pet. Br. at 10. SCLI maintains that the Agency is

creating a new statutory limitation on the validity of local sitings not found in the Act and a new

requirement that an applicant must have a continuous ongoing permit application which is also

not in the Act.

Id

.

 

Reversal of Agency’s Interpretation

 

---

 

8

SCLI argues that the courts have stressed consistency in interpreting the Act and have

stated: “‘[o]f great concern to us is the fact that the Pollution Control Board is not consistent in

its reading of the Act.’ Chemetco v. PCB, 140 Ill. App. 3d 283, 488 N.E.2d 639,643 (5th Dist.

1986).” Pet Br. at 10. SCLI also points to Alton Packaging Corporation v. PCB and IEPA, 146

Ill. App. 3d 1090, 497 N.E.2d 864 (5th Dist. 1986) wherein the court noted that “administrative

bodies are bound by prior custom and practice in interpreting their rules and may not arbitrarily

disregard them.” Pet. Br. at 10, citing Alton Packaging at 497 N.E.2d 864, 866. SCLI asserts

that the Board and the Agency are bound by prior custom and practice as well as the need for

consistency in interpreting the Act. Pet. Br. at 11. SCLI argues that thus granting SCLI a permit

in this instance will not violate the Act because the Agency should read Section 39(f) of the Act

(415 ILCS 5/39(f) (2002)) consistently, as the Agency has done for ten years prior to the instant

application. Pet. Br. at 11.

 

SCLI concedes that the Illinois Appellate Court consistently give deference to an

agency’s interpretation of the agency’s statute; however, that deference is granted when the

statute is ambiguous and the interpretation is long standing. Pet. Br. at 11, citing Moy. SCLI

argues that given the courts’ view, the only interpretation that is entitled to deference is the long

standing interpretation of the Agency that local sitings do not expire so long as an application for

development permit is made within three years. Pet. Br. at 11-12. SCLI asserts that the record

contains ample evidence that for over ten years the Agency has interpreted Section 39(f) of the

Act (415 ILCS 5/39(f) (2002) to mean that local siting does not expire if an application for

developmental permit is filed within three years. Pet. Br. at 12. SCLI emphasizes that the

Agency’s long standing interpretation is undisputed.

Id

.

 

SCLI also argues that the Board has recognized the importance of consistency in the

actions of the Agency. Pet. Br. at 12. SCLI points to Owens Oil Company v. IEPA, PCB 98-32

(Oct, 18, 1997) where the Board stated that when the Agency departs from a prior practice the

Agency must do so for good cause such as a change in the law, different facts, or a determination

that the prior practice was in error. Pet. Br. at 12, citing Owens Oil, slip op. at 2. SCLI argues

that the Agency departed from the long standing practice without determining that the prior

practice was in error, without a change in the statute, or without a determination that the facts are

different. Pet. Br. at 13.

 

Parties and Board Agree Local Siting has not expired

 

SCLI asserts that the Agency made a “judicial admission” before the Board that SCLI did

not need to seek new siting approval. Pet. Br. at 13. SCLI points to language in the Board’s

opinion and order in Saline County Landfill, Inc. PCB 02-108 and notes that neither the Agency

nor Saline County appealed that decision. Pet. Br. at 13. SCLI maintains that the Agency

“admitted of record” that a new siting application was not required in PCB 02-108 and therefore,

the Agency’s decision in the instant appeal is “all the more vulnerable to challenge” by SCLI.

Pet. Br. at 13-14.

 

Portion of Locally Approved Expansion Permitted

 

---

 

9

SCLI argues that the permit issued by the Agency in December 1996 included vertical

expansion into the air space included in the November 1996 landfill siting approval. Pet. Br. at

14. SCLI argues that therefore, the local siting approval cannot expire because areas approved

for siting in November 1996 were permitted for development and operation in December 1996.

Id

. SCLI emphasizes that no matter how the Board interprets Section 39(f) of the Act (415 ILCS

5/39(f) (2002)), SCLI’s timeframe did not expire because multiple development permits were

filed with the Agency concerning the new air space approved for siting in November 1996 and at

least one permit was issued. Pet. Br. at 15.

 

Response to Saline County

 

SCLI addressed potential arguments by Saline County in the opening brief as no reply

brief was scheduled to be filed. Specifically, SCLI maintains that: 1) SCLI is not arguing

equitable estoppel; 2) the facts of this case are distinguishable from Village of Fox River Grove

v. IEPA, PCB 97-156 (Dec. 18, 1997); 3) permit denial is not the equivalent of failure to file a

permit application; and 4) SCLI diligently and continuously pursued a permit. Pet. Br. at 15-17.

The Board will summarize each of those arguments below.

 

Equitable Estoppel

 

SCLI argues that Saline County misstated SCLI’s position in this appeal at hearing in that

SCLI is not arguing equitable estoppel or detrimental reliance principles in this appeal. Pet. Br.

at 15, citing Tr. at 40. SCLI emphasizes that not only is SCLI not making such an argument, the

principles were not pleaded in the petition for review. Pet. Br. at 15. SCLI points out that no

assertion has been made by SCLI that an Agency employee knowingly made untrue

representations, which is an element in the doctrine of equitable estoppel. Pet. Br. 16. SCLI

asserts that rather than equitable estoppel, SCLI is arguing that the sudden reversal of

interpretation by the Agency results in an incorrect interpretation.

Id

.

 

Fox River Grove

 

SCLI speculates that Saline County may cite the Board to Fox River Grove for the

propositions that the Agency claims the right to correct past misinterpretations and the Agency’s

previous misinterpretations are not relevant to the Board’s review of this instant appeal. Pet. Br.

at 16. SCLI argues that the Fox River Grove is distinguishable from this case for two reasons.

Id

. First, SCLI notes that the instant appeal involves interpretation of Section 39.2(f) of the Act

(415 ILCS 5/39.2(f) (2002)), while Fox River Grove involved interpretation of the Board’s

regulations.

Id

. SCLI asserts this distinction is critical because upon appellate review, the

Board’s interpretations of the Board’s regulation is entitled to great deference while new or

inconsistent interpretations of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) are not.

Id

.

Furthermore, SCLI argues that the Agency’s interpretation of Section 39.2(f) of the Act (415

ILCS 5/39.2(f) (2002)) was consistent for about ten years, “ample time to demonstrate the

legislature’s concurrence with the Agency’s statutory interpretation.” Pet. Br. at 15-16.

 

The second distinction between Fox River Grove and this appeal, according to SCLI, is

that the Board “recognized and all parties agreed” SCLI could apply for a development permit to

---

 

10

expand the landfill. Pet. Br. at 17. SCLI asserts for the Board to hold otherwise now would be

inconsistent with Saline County Landfill, Inc. PCB 02-108. Pet. Br. at 17.

 

Permit Denial Not Equivalent to Failure to File Permit Application

 

SCLI asserts that Saline County equates the denial of a permit by the Agency with the

failure to apply for a permit within three years of local siting approval. Pet. Br. at 17. SCLI

argues that Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) contains no such language.

Id

.

SCLI maintains that SCLI timely filed a complete development permit application in 1999 and

the permit denial stated no issues of completeness or timeliness.

Id

. SCLI stresses that SCLI

met the statutory obligation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) to preserve

the validity of local siting approval.

Id

.

 

SCLI Diligently and Continuously Pursued a Permit

 

SCLI argues that rather than “banking” local siting approval as alleged by Saline County,

SCLI diligently and continuously pursued a permit. Pet. Br. at 17. SCLI asserts that the Agency

concedes that SCLI had a permit application pending almost continuously since 1999.

Id

. SCLI

maintains that the facts to no support the concerns expressed by Saline County about banking of

local siting approval.

Id

.

 

AGENCY ARGUMENTS

 

The Agency sets forth arguments on statutory construction and then asserts that the

Agency’s interpretation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) is correct for

several reasons. The Board will summarize each of the Agency’s positions below.

 

Basic Statutory Construction

 

The Agency relates that the rules of statutory construction and deference owed to an

administrative agency’s interpretation of statues administered by the agency are well established.

Ag. Br. at 7. The Agency argues that a primary rule in statutory construction is that the intention

of the legislature should be ascertained and given effect.

Id

. The Agency asserts that a court

should not attempt to read a statute other than in the manner the statute was written.

Id

. Further,

the Agency maintains that the terms of a statute are not to be considered in a vacuum and should

be liberally construed to effectuate the purposes of the Act. Ag. Br. at 8, citing M.I.G.

Investments, Inc. v. IEPA, 122 Ill. 2d 392, 397-98, 400; 523 N.E.2d 1, 3, 4 (1988).

 

The Agency also argues that there are guidelines established regarding deference to a

state agency’s interpretation of statues. Ag. Br. at 8. The Agency asserts that courts will give

substantial weight and deference to interpretation of an ambiguous statue by an agency charged

with administration and enforcement of the statute.

Id

. This deference is accorded to the agency

based on the experience and expertise of the agency, asserts the Agency. Ag. Br. at 8-9, citing

Fox River Grove. The Agency argues that this deference is accorded even if the interpretation

represents a sharp break form prior interpretations. Ag. Br. at 10, citing Rust v. Sullivan, 500

U.S. 173, 186 (1990); Chevron, U.S.A. v. NRDC, 467 U.S. 837, 862 (1984). Thus, the Agency’s

---

 

11

interpretation “as articulated and applied in this instance” should be given deference by the

Board, according to the Agency. Ag. Br. at 11.

 

The Agency argues that the focus of the Agency’s attention and now the Board’s

attention is the proviso relating to local siting approval expiration. Ag. Br. at 11. The Agency

acknowledges that previously the Agency interpreted the language of Section 39.2(f) of the Act

(415 ILCS 5/39.2(f) (2002)) to mean that “any” application within three calendar years

effectively saved the local siting approval from expiration.

Id

. However, the Agency notes that

the interpretation followed by the Agency, after receiving an interpretation by the AGO, is that

the permit for development must include proof that local siting approval was granted within three

calendar years of the application for the current permit. Ag. Br. at 11-12. The distinction

according to the Agency between the two interpretations is that a previous submittal does not

preserve local siting approval. Ag. Br. at 12.

 

Agency’s Interpretation of Section 39.2(f) is Correct

 

The Agency argues that a previous submittal of a development permit application does

not preserve the local siting approval. Ag. Br. at 11-12. The Agency maintains that in the case

now before the Board, siting approval was granted six and a half years ago. Ag. Br. at 12. The

Agency states that there is no dispute the current permit application was submitted well beyond

the three year limitation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)).

Id

. The

Agency asserts that the “backdoor” sought by SCLI is that a previous application was submitted

during the three year period and as a result the local siting did not expire.

 

The Agency sets forth several “flaws” in the SCLI arguments that siting did not expire.

First, the Agency expresses concern that if the filing of any application protects the local siting

approval, a “sham” application could be filed. Ag. Br. at 12. A “sham” application could

preserve the grant of local siting approval in perpetuity, argues the Agency.

Id

.

 

Second, the Agency asserts that SCLI reads language into Section 39.2(f) of the Act (415

ILCS 5/39.2(f) (2002)) which is not there. Ag. Br. at 12. Specifically, the Agency argues that

for SCLI’s argument to prevail, Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) would

have to read “unless within that period the applicant has made any application to the Agency for

a permit to develop the site.” Ag. Br. at 12. The Agency maintains that the Act does not read

that way. Further, the Agency opines that SCLI cannot read into the Act that actually receiving a

development permit based on a timely submitted application prevents the expiration of local

siting approval. Ag. Br. at 13.

 

Third, the Agency argues that the purpose behind the imposition of the three-year

expiration “is clearly to encourage the timely acting upon a sitting approval.” Ag. Br. at 13. The

Agency asserts that the “‘evil’” to be remedied is the possibility of a “sham” application to

preserve local siting approval.

Id

. The Agency points out that the instant application was

submitted six years after local siting approval and “that was exactly the scenario that was

intended to be avoided.”

Id

.

 

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12

A fourth flaw in SCLI arguments according to the Agency is that the interpretation

advanced by SCLI would allow for the future submission of development permits in perpetuity.

Ag. Br. at 13. However, the Agency argues that “circumstances change, communities change

and permitted facilities change.”

Id

. The Agency emphasizes that the legislature sought to allow

local governments to “maintain consistent and timely oversight of landfill development” and

SCLI’s arguments would defeat that intent. Ag. Br. at 13-14.

 

Finally, the Agency takes issue with SCLI’s claim that SCLI has diligently pursued a

permit. Ag. Br. at 14. The Agency concedes that the facts may support SCLI’s assertion;

however, the only relevant consideration is whether the instant permit was submitted within three

calendar years of local siting approval.

Id

. Because the instant permit was not submitted during

that three-year window, the Agency maintains that the Agency could not approve the permit

sought.

Id

.

 

SALINE COUNTY’S ARGUMENTS

 

Saline County presents four general arguments in opposition to SCLI’s contention that

local siting approval did not expire. First, Saline County summarizes the role of the local

governing body in landfill issues. Second Saline County argues that local siting has expired and

delineates three reasons why SCLI’s arguments are flawed. Third, Saline County argues that

Medical Disposal Service v. IEPA, PCB 95-75,76 (May 4, 1995) (consld.) affirmed Medical

Disposal Services, Inc. v. IEPA, 286 Ill. App. 3d 562, 677 N.E.2d 428 (1st Dist. 1997) is

applicable to this case. Fourth, Saline County argues that the “dicta” in Saline County Landfill is

irrelevant. The Board will summarize each of the four arguments below.

 

Saline County’s Role in Landfill Issues

 

Saline County argues that the courts and the Board have long recognized that Section

39.2 of the Act (415 ILCS 5/39.2 (2002)) represents the “singular most important state of the

continuum of siting and approving pollution control facilities such as landfills.” SC Br. at 6,

citing Medical Disposal, 677 N.E.2d at 432. Saline County notes that when local siting approval

was granted to SCLI in 1996, no property right was created in SCLI. SC Br. at 6-7, citing

Medical Disposal, 677 N.E.2d at 433.

 

Saline County asserts that the Act should not be read in a vacuum but instead should be

read in conjunction with other statutes that pertain to landfills. SC Br. at 7. Saline County

particularly points to the Illinois Solid Waste Planning and Recycling Act 415 ILCS 15/1

et seq

.

(2002) which requires counties to develop and maintain a plan for the management of waste

generated within the counties’ boundaries. SC Br. at 7. Saline County points to this statue to

demonstrate the counties’ overall involvement in planning waste management in individual

counties. SC Br. at 7-8.

 

Local Siting Approval Has Expired

 

In this portion of Saline County’s brief, Saline County’s arguments can be characterized

in two ways. First, Saline County argues that the language of Section 39.2(f) of the Act (415

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13

ILCS 5/39.2(f) (2002)) demonstrated that siting has expired. Second, Saline County points to

three alleged flaws in the arguments of SCLI. The following discussion will summarize both

arguments.

 

Language of Section 39.2(f) of the Act

 

Saline County argues that Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) on its

face reveals that unless SCLI sought permitting for the approved facility within three years local

siting approval expired. SC Br. at 8. Saline County maintains that within three years, SCLI did

not seek: 1) a permit for a facility for which local siting had been approved, or 2) a permit for

the site upon which the facility was located.

Id

. Therefore Saline County argues local siting has

expired.

 

Flaws in SCLI’s Arguments

 

First, regarding SCLI's contention that a portion of the airspace which was approved in

1996 was permitted later in that year, Saline County asserts that SCLI has “utterly failed” to

prove what portion of the air space was permitted or when permitting occurred. SC Br. at 9.

Saline County maintains that SCLI merely points to some legal conclusions in the record but the

facts do not support the conclusions. SC Br. at 9. Saline County argues that since the burden is

on SCLI in this proceeding and the record does not support the contention, this fact alone

warrants affirmance of the Agency.

Id

.

 

Second, Saline County argues that the language of Section 39.2(f) of the Act (415 ILCS

5/39.2(f) (2002)) requires an application for development of “the site” not a portion of the site.

SC Br. at 9. Saline County asserts that the siting statute does not support “SCLI’s tacit

assertion” that piecemeal development is acceptable under the siting statute.

Id

. Saline County

opines that the legislature understands the difference between the entire site and portions of the

site.

Id

., citing Section 39.2(c) of the Act (415 ILCS 5/39/2(c) (2002)).

 

Saline County goes on to argue that a “site” is made up of one or more “facilities” based

on a reading of the Section 39.2 of the Act. SC. Br. at 11. Furthermore, Saline County asserts

that Section 39.2(f) of the Act clearly requires that a development permit for the entire site and

not merely discrete facilities within a site be sought within three years of local siting approval.

SC Br. at 11.

 

A third flaw in SCLI's arguments is that SCLI’s interpretation would “work substantial

mischief” upon the “obvious” intentions of the legislature’s carefully crafted scheme, argues

Saline County. SC Br. at 11. Saline County argues that counties are required by law to remain

current and actively involved in the waste management needs of the county.

Id

. Saline County

maintains that SCLI’s interpretation would remove Saline County from the process and allow

SCLI to “mothball” the local siting approval indefinitely.

Id

.

 

Medical Disposal Services

 

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14

Saline County argues that the decisions in Medical Disposal Services control “most of the

salient issues in this case.” SC Br. at 13. Saline County details the facts in the Medical Disposal

Services case and asserts that factors guiding the Board in that case compel a similar ruling here.

SC Br. at 15. Saline County maintains in Medical Disposal Services that the applicant who

sought the permit was not the applicant who had received siting approval.

Id

. In this

proceeding, although the applicant was the same, the facility differed, argues Saline County.

Id

.

Saline County opines that like Medical Disposal Services, SCLI is attempting to obtain siting

approval for something that was never approved by the local siting body.

Id

.

 

 

Board’s “Dicta” in Saline County Landfill (PCB 92-108) Is Irrelevant

 

Saline County argues that SCLI’s reliance on the Board’s opinion and order in Saline

County Landfill is misplaced. SC Br. at 19. Saline County points out that the language relied

upon by SCLI is pure dicta and not relevant to the issue decided in that case.

Id

. Saline County

asserts that no mention is made in any published opinion in Saline County Landfill that Section

39.2(f) of the Act was of any relevance to that case and the Board made clear that the issue had

no bearing on the Board’s decision.

Id

. Further, Saline County maintains that the question in

this proceeding is a question of law and whatever may have been said in a previous case does not

alter what the statute says.

Id

.

 

Saline County also takes issue with the arguments by SCLI that Saline County’s failure to

appeal the dictum somehow binds this case to the same result. SC Br. at 19. Saline County

points out that in Saline County Landfill, Saline County won the case and therefore could not

appeal under Section 41 of the Act (415 ILCS 5/41 (2002)). SC Br. at 19.

 

DISCUSSION

 

Despite all the issues argued in this case, the question before the Board is simply: “Did

local siting approval for SCLI’s landfill expansion in Harrisburg expire”?

 

The following discussion will first clarify what standard the Board uses to review a

permit decision and what deference the Board will afford the Agency’s interpretation of Section

39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)). Then, the Board will delineate the reasons for

the finding that SCLI provided proof of local siting approval in the permit application.

 

Standard of Review

 

Both the Agency and SCLI argue that the Agency’s interpretation of Section 39.2(f) of

the Act (415 ILCS 5/39.2(f) (2002)) should be given deference.

See

Pet. Br. at 10-11 and Ag.

Br. at 11. But, SCLI argues that the Agency’s interpretation prior to the instant permit denial is

the interpretation which should be given deference. Pet. Br. at 11. The basis for both arguments

is that courts give deference to a state agency’s interpretation of a statute in which the state

agency is charged with administering and enforcing. Fox River Grove 702 N.E.2d at 662.

 

---

 

15

However, the Board’s standard of review in a permit appeal is to determine whether the

application as submitted to the Agency demonstrates that no violation of the Act or Board rules

would occur if the permit was issued. ESG Watts v. IEPA, PCB 01-63, 64 (consld.) (Apr. 4,

2002). Furthermore, the Agency’s denial letter frames the issue on appeal and the Board’s

review is based solely on the record before the Agency. In reviewing the Agency’s decision on a

permit appeal, the courts have held that the Board does not review the Agency’s decision using a

deferential manifest-weight of the evidence standard. IEPA v. PCB, 115 Ill. 2d 65, 70, 503

N.E.2d 343, 345 (1986).

 

Given the Board and Agency responsibilities in a permit appeal, the Board finds that the

Agency’s interpretation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) prior to this

appeal is not relevant to the Board’s decision. Further, as the Board must decide whether or not

the application as submitted demonstrates that no violation of the Act would occur if the permit

is issued, the Board is not bound by the Agency’s interpretation of Section 39.2(f) of the Act

(415 ILCS 5/39.2(f) (2002)). The Board will consider the Agency’s arguments on statutory

construction; however, the Agency’s arguments are not considered with any greater or lesser

weight than SCLI’s arguments or Saline County’s arguments. In taking this view of the

Agency’s interpretation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)), the Board is

consistent with both the Board’s and court’s decisions in Fox River Grove, (

see

Fox River Grove

702 N.E.2d at 662 and PCB 97-156, slip op. at 8).

 

Interpretation of Section 39.2 (f) of the Act

 

As noted above, the issue in this case is whether or not SCLI’s 1996 has local siting

approval for the expansion of the landfill continues to be valid. The resolution of that issue

requires a reading of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) which provides in

part that:

 

approval shall expire at the end of 3 calendar years from the date upon which it

was granted, and unless within that period the applicant has made application to

the Agency for a permit to develop the site. 415 ILCS 5/39.2(f) (2002).

 

Section 39.2(f) of the Act (415 ILCS 5/39/2(f) (2002)) goes on to specify when the time period

shall commence if local siting is appealed and when a development permit expires under

subsection (k) of the Act (415 ILCS 5/39(k) (2002)). Notably, Section 39.2(f) of the Act is silent

concerning an application timely applied for, but denied by the Agency.

 

The parties have all accurately and extensively discussed the general rules of statutory

construction. The Board sees no need to repeat that recitation here. The law is well settled that

the plain language of a statute should be given the common meaning of the language. Pioneer

Processing, Inc. v. IEPA, 111 Ill. App. 3d 414, 444 N.E.2d 211 (4th Dist. 1952). Further, the law

is also well settled that the inclusion of one limitation is the exclusion of other limitations.

Browning Ferris, 468 N.E.2d at 1018. Therefore the Board examines the language of Section

39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) by assessing the plain meaning of the words and

by determining if the language includes exclusions.

 

---

 

16

The plain language of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) states that

local siting expires

unless

an application is made to the Agency for development of the site

within three years of local siting approval. All parties agree that SCLI did apply for a permit

within three years but that the permit was denied (

see

Saline County Landfill PCB 92-108).

Thus, under the plain language of the statute, a permit application for development of the site

was filed within three years of siting approval.

 

The statutory language is silent regarding time limitations if the Agency denies a permit.

This is the point where the parties disagree. The Agency and Saline County argue here, that the

statutory language means that the local siting approval has expired because the instant

application was filed after the three years. SCLI argues that, having timely filed a permit

application and diligently sought a permit, the 1996 siting has not expired.

 

The Board is persuaded that the local siting approval has not expired. The statutory

language includes other scenarios for when siting expires besides the three-year time limitation.

The statute is silent regarding an Agency permit denial. Clearly, the legislature understood that

not all permits are granted. Thus, the Board finds that, the legislature’s failure to include a

scenario wherein the Agency denies a permit, indicates the legislature did not intend for a denial

of a permit to have any affect on the three-year time limitation. As long as an application to

develop the site is filed within three years of local siting approval, whether or not that permit is

granted, the Board finds that the requirements of Section 39.2(f) of the Act (415 ILCS 5/39.2(f)

(2002)) are met and local siting does not expire.

 

The Board’s interpretation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) is

particularly supported by the specific facts of this case. Contrary to the arguments made by the

Agency and Saline County, SCLI’s permit application submitted within three years was not a

“sham” permit application used to “mothball” siting. In fact, SCLI submitted the application in

1999 and continued to submit information relevant to the permit application until 1991, when the

permit application was denied by the Agency. Thus, SCLI filed a comprehensive application

within three years of local siting approval (

see

Saline County Landfill PCB 92-108).

Furthermore, SCLI has been actively seeking other permits for the site.

See

Pet. Exh. 6. Thus,

the concerns expressed by Saline County and the Agency that a petitioner could present a

“sham” application or “mothball” siting are not reflected in the facts of this case.

 

Based on the Board interpretation of Section 39.2(f) of the Act (415 ILCS 5/39.2(f)

(2002)), the Board finds that SCLI did have proof of local siting approval in the instant

application for permit. The Board further finds that because the sole denial reason was the

failure to include proof of local siting approval, the permit must be issued. The Board will

remand the case to the Agency for issuance of the permit.

 

CONCLUSION

 

The Board has reviewed the arguments of the parties and finds that the application for

permit submitted by SCLI demonstrates that no violation of the Act or Board regulations will

occur if the permit is issued. The Board further finds that under the plain language of Section

39.2(f) of the Act (415 ILCS 5/39.2(f) (2002)) local siting approval does not expire when an

---

 

17

application for developmental permit is filed within three years of the granting of siting approval,

even if the Agency denies the permit application. The Board will remand this case to the Agency

for the issuance of the permit.

 

 

This opinion constitutes the Board’s findings of fact and conclusions of law.

 

ORDER

 

 

The Board remands the Saline County Landfill, Inc. permit application to the Illinois

Environmental Protection Agency for the issuance of a permit consistent with the Board’s

findings in this proceeding.

 

 

IT IS SO ORDERED.

 

 

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/31(a) (2002));

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

 

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on May 6, 2004, by a vote of 5-0.

 

 

 

 

Dorothy M. Gunn, Clerk

 

Illinois Pollution Control Board