BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
NOTICE
I. INTRODUCTION
CERTIFICATE OF SERVICE

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

VILLAGE OF ROBBINS and

)

ALLIED WASTE

TRANSPORTATION, INC.,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Dorothy M. Gunn, Clerk

fllinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

PCB No. 04-48

(Permit Appeal)

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Petitioner,

Respondent.

)

NOTICE

RECE~VED

CLERK’S OFF~C~

JUN 01 2004

~Bd

Charles F. Helsten

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

William Mansker

Village ofRobbins

3327 West

137th

Street

Robbins, IL 60472

PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution

Control Board a RESPONSE TO PETITIONERS’ MOTION FOR SUIvIIvIARY JUDGMENT, copies of

whichare herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

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)

Dated: May 28, 2004

CLERK’S OFFICE

BEFORE THE POLLUTION CONTROL

BOARD

OF THE STATE OF ILLINOIS

STATE

0120$J4

ILLINOIS

VILLAGE OF

ROBBINS and

)

POjj~tt~~Control

Board

ALLIED WASTE

)

TRANSPORTATION, INC.,

)

Petitioner,

)

PCB No. 04-48

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE

TO PETITIONERS’ MOTION FOR

SUMMARY

JUDGMENT

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

111. Adm. Code 101.500, 101.504 and 101.5 16, hereby respectfully

responds to the Motion for Summary Judgment and Memorandum ofLaw (“Petitioners’ motion”

or “motion for summary judgment”) filed by the Petitioners, Village of Robbins (“Village”) and

Allied Waste Transportation (“Allied”). In response to the Petitioners’ motion, the Illinois EPA

states as follows:

I. INTRODUCTION

On April 29, 2004, the Petitioners filed a motion for summary judgment, arguing that

there are no genuine issues ofmaterial fact and that the Illinois EPA’s failure to issue a permit as

requested resulted in a violation of the Illinois Environmental Protection Act (“Act”).

Petitioners’ motion, p. 31

The Petitioners recited facts they believe to be relevant and uncontroverted in support of

their arguments. Petitioners’ motion, pp. 1-3. The Petitioners then provided the. two key

components of their argument; namely, that Section

39.2(e-5)

ofthe Act (415 ILCS

5/39.2(e-5))

Citatations to “Petitioners’ motion” will be referencing pages from the Memorandum ofLaw in Support ofMotion

forSuniniary Judgment.

provides legal authority for the Village to confer siting approval for the proposed transfer station,

and that the scope of the siting application that led to the issuance ofsiting approval on Febtuary

9, 1993, encompassed the proposed transfer station.

However, contrary to the assertions of the Petitioners, there are material facts that are in

dispute. Further, the legal argument proffered by the Petitioners is without merit and should be

denied on its own merits if necessary.

II. THERE ARE GENUINE ISSUES OF

MATERIAL

FACT

Based upon the facts presented by the Petitioners, the Board should determine that there

are genuine issues of material fact. For example, the Petitioners claim that on February 9, 1993,

the Village approved the siting approval application of Robbins Resource Recovery’ Company

(“RRRC”) for a “regional pollution control facility” to be located in the Village. Petitioners’

motion, p. 1; AR, pp. 64~73.2 The Petitioners then make numerous arguments based on the

wording in the ordinance approving siting for a “new regional pollution control facility.” AR, p.

65.

However, that ordinance also states in its heading that it is an ordinance approving the

application of RRRC for a regional pollution control facility. Repeated references to the

application of RRRC are made throughout the ordinance.

~4.

The record does not contain the

siting application that RRRC submitted to the Village. Therefore, the Board cannot determine

exactly what type of facility was described and identified in the application as being the subject

ofthe request.

As the Petitioners described in the permit application seeking approval of the proposed

transfer station, the original siting approval granted by the Village to RRRC was issued on

October

25,

1988. AR, p. 158. Though that ordinance made reference in its heading as

approving a regional pollution control facility, it also specified that the type offacility identified

References to the Administrative Record shall henceforth be made as, “AR, p.

.“

in the siting application was a qualified solid waste energy facility. AR, p 61. Thus, the original

ordinance described the type of facility that was proposed. A qualified solid waste ehergy

facility was the statutory description given for a municipal waste incinerator that was subject to

the Retail Rate Law.

Here, despite references made in the permit application by the Petitioners to the content

and provisions ofthe 1992 siting application (e.g., AR, pp. 416, 417), the siting application itself

is not part of the Administrative Record. The siting application was not submitted with the

permit application, and thus the illinois EPA did not have the benefit of the siting application at

the time of its decision under review. As a result, the Illinois EPA could not make any

determinations as to what type of facility was being proposed by the siting applicant’that led to

the 1993 siting approval.

As the Petitioners explained in the permit application, a court ruling caused RRRC to

reapply to the Village for local siting approval to cure some notice deficiencies. The Petitioners

noted that the Village then issued the 1993 ordinance approving site location. AR, p. 158. The

Petitioners did not state that the 1992 siting application, which was a re-application for the

previously issued 1988 siting approval, changed the scope or description ofthe proposed facility

in any way. All that was implied in the permit application was that the notice problems of the

first siting request were addressed. Thus, it is likely that the 1992 siting application asked for

site location approval for a municipal waste incinerator. Indeed, though the permit is not

included in the Administrative Record, the Petitioners argue that the permit granted by the

Illinois EPA based upon the 1993 siting approval encompassed all ofthe activities proposed in

this most recent permit application. AR, p. 418. However, none ofthe permits referenced in the

permit application or in the Petitioners’ motion are included in the Administrative Record before

the Board. AR, pp. 418; Petitioners’ motion, p. 2.

Without complete factual support for the allegations in the Petitioners’ motion, the Board

cannot determine whether or not there are any disputes of material fact. The Illinois EPA

contends that the siting approval offered by the Petitioners is insufficient to demonstrate that

siting approval has been provided for the transfer station permit application. The Petitioners

allude to contents of documents that are not before the Board in support of their contrary

position.

However, there is evidence within the Administrative Record that directly contradicts the

Petitioners’ contentions. In May 1989, the Illinois EPA’s Division of Land Pollution Control

(“DLPC”) issued comments to RRRC regarding identified issues with permit applications

submitted by RRRC. AR, pp.

54-56.

Specifically, DLPC identified a potential problem

involved with the possibility that the RRRC facility would include the operation of a garbage

transfer station, and how such operation should be reconciled with a statutory set back for such

operations. AR, p.

55.

The noted response of RRRC is that a garbage transfer station is

principally a facility that accepts refuse from small compactor trucks and reloads, using a variety

ofmethods into larger transfer trailers in order to reduce the transportation cots ofhauling refuse

to a distant landfill. The position of RRRC was that the proposed facility would not bç a

regional pollution control facility used as a garbage transfer station in addition to being used as a

municipal waste incinerator. Thus, RRRC did not believe that any compliance with ~ection

22.14 of the Act (415 ILCS 5/22.14) (which imposes a set back between transfer stations and

nearby dwellings) was relevant. AR, p.

56.

These notes were apparently made based upon responses received from RRRC, and

memorialize the permit applicant’s position that its proposed facility was not a garbage traiisfer

station. This contention is inapposite to the argument now being made by the Petitioners, and the

Board should attempt to reconcile this issue before concluding that no factual issues remain.

Even more specific and relevant is information found within the 1993 siting approval,

from which the Petitioners now claim siting requirements have been met. The Petitioners argue

that the 1993 ordinance referenced only a “pollution control facility,” and that term is so broad as

to include any and all of the types of activities found within Section 3.330 ofthe Act (415 ILCS

5/3.330).

Petitioners’ motion, pp.

4-5.

But a review ofthe 1993 ordinance and accompanying

“Decision Approving The Application Of Robbins Resource Recovery Company For A Regional

Pollution Control Facility In The Village Of Robbins” (“1993 decision”) refutes the Petitioners’

claims. The 1993 decision was attached as an exhibit to the 1993 ordinance and is incorporated

by reference therein. AR, p.

65.

In paragraph 13 of the 1993 decision, the Village notes that the

facility under review was a waste-to-energy facility. AR, p. 69. That term is commonly referred

to as a waste incinerator intended to generate electricity, as specified in paragraph 15 ofthe 1993

decision. AR, p. 70. This is a clear and irrefutable statement by the Village that the 1993

ordinance approved a municipal incinerator for siting, and nothing else;

Summary judgment is appropriate when the pleadings, depositions, admissions on fije,

and affidavits disclose that there is no genuine issue ofmaterial fact and that the moving party is

entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460k, 483,

693 N.E.2d 358, 370 (1998); See also, 35 Ill. Adm. Code 101.516(b). When ruling on a motion

for summary judgment, the Board “must consider the pleadings, depositions, and affidavits

strictly against the movant and in favor of the opposing party.” Dowd & Dowd, 181 Ill.2d at

483, 693 N.E.2d at 370.

Summary judgment “is a drastic means of disposing of litigation,” therefore the Board

should grant it only when the movant’s right to relief “is clear and free from doubt.” Dowd &

Dowd, 181 Ill.2d at 483, 693 N.E.2d at 370, Citing Purtill v. Hess, 111 Ill.2d 229, 240, 489

N.E.2d 867, 871 (1986). However, a party opposing a motion for summary judgment may not

rest on its pleadings, but must “present a factual basis which would arguably entitle it to a

judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994 999 (~fldDist.

1994).

The Illinois EPA has already set forth that, based on the previous representations of

RRRC and the Petitioners, there is ample evidence demonstrating that the 1993 siting approval

should be read consistent with the 1988 siting approval, which specified that the proposed

facilitywas a municipal waste incinerator, and specifically not a garbage transfer station. Based

upon factual issues described above, the Board should deny the motion for summary judgment

on the basis that there exist material issues offact.

III. THE

PETITIONERS

ARE MISAPPLYING SECTION 39.2(e-5) OF THE ACT

Even if the Board were to conclude that there are no issues of fact, the Petitioners’

motion should still be denied as it presents no meritorious arguments of law. The Petition~rs

primarily rely on Section

39.2(e-5)

ofthe Act as the legal authority allowing for the acceptance

of the notion that in 1993 the Village granted siting approval for a transfer station. ~ plain

reading of Section

39.2(e-5),

however, indicates that the Petitioners’ reliance on that subsection

is misplaced.

Section

39.2(e-5)

provides in part that siting approval obtained pursuant to Section 39.2

of the Act is transferable and may be transferred to a subsequent owner or operator. Ifsifing is

transferred, then the subsequent owner or operator assumes and takes subject to any and all

conditions imposed upon the prior owner or operator ofthe unit oflocal government. However,

such conditions may be modified by agreement between the subsequent owner or operator and

the unit of local government. Based on that language, the Petitioners present the following

argument. The 1993 siting approval was for a “pollution control facility,” and that term is

defined in Section 3.330 of the Act as being any waste storage site, sanitary landfill, waste

disposal site, waste transfer station, waste treatment facility, or waste incinerator.

Since the term “pollution control facility” is so broad, the Petitioners argue that whatever

else may have been previously permitted by the Illinois EPA for this facility-in a former guise,

certainly a waste transfer station is within the scope of the definition and therefore the 1993

siting approval extends to encompass the proposed transfer station. Petitioners’ motion, pp.

4-5.

Therefore, the Petitioners argue that the broad, unspecified terminology employed in the

siting approval, in conjunction with the siting agreement between the Village and Allied (AR,

pp. 76-80) and the Village mayor’s affidavit (actually a form certification of siting approval)

(AR, p.

75),

all lead to the conclusion that the 1993 siting approval is adequate to conclude that

siting approval for a transfer station was transferred to Allied. Petitioners’ motion, p.

Unfortunately, scrutiny of this reasoning yields little substance and many questions.

Starting at the beginning, for there to be any offering of local siting approval, it must first be

established that the Village effectively transferred siting approval to Allied. AR, pp. 76-80.

Since the 1993 siting approval was granted by the Village to RRRC (AR, pp.

65-73),

the Village

must demonstrate that it transferred siting approval to Allied since RRRC is not a part of the

subject permit application. It has already been established that the 1993 decision clearly stated

that the 1993 ordinance granted siting approval for a municipal waste incinerator, and not a

waste transfer station. Therefore, the only siting that could conceivably be transferred to Allied

by the Village would be that for a municipal waste incinerator.

That fact thus calls into question the certification signed by the Village mayor that the

Village granted siting approval for a waste transfer station in 1993. AR, p. 75. No documents

presented by the Petitioners to the Illinois EPA support that contention. Indeed, if the

Petitioners’ argument is to be believed, one would have expected the certification form to have

check marks for all types of activities in Item 2 of the certification, since all such activities are

included under the definition of pollution control facility.

That only one box was

(erroneously) checked is yet another inconsistency in the Petitioners’ arguments.

The next flaw in the Petitioners’ case is that Section 39.2(e-5) of the Act somehow

confers the ability ofthe Village to transfer siting authority to Allied. The language ofSection

39.2(e-5) is clear and speaks for itself, and in plain language states that conditions to siting

approval may be modified upon transfer. Here, the change from a municipal waste incinerator

being granted siting approval to a waste transfer station being granted siting approval is not a

mere change in condition. Rather, it is a wholesale change in the very type of facility

contemplated. The statutory provision that a condition may be modified must be kept in cont~ext

with the overall limits ofthe Act itself.

To allow a change in the type offacility covered under a siting approval would defeat the

whole purpose of the siting process; specifically, to allow for sufficient public input and

comment that will provide a local unit of government the ability to render a final decision. If

siting approval is granted to a waste transfer station, then a unit oflocal government purports to

transfer that siting to a subsequent owner or operator and in the process changes the facility type

to a hazardous waste incinerator, the whole purpose behind the establishment of the ~iting

process would be subverted. And though the present case does not involve such a very drastic

change, to allow the Petitioners’ arguments would still allow for that more egregious example in

the future.

The attempt by the Petitioners to claim that Section

39.2(e-5)

of the Act allows for a

change in the type ofsited facility should not be condoned by the Board. Rather, Section 39.2(e-

should be read in conjunction with Section 39.2 as a whole, and the local siting approval

process should be protected. Simply put, this is not a change in condition, but rather a change in

the type offacility to be approved. There is no past example of Section

39.2(e-5)

being used in

this manner, and to allow it here would create a bad precedent.

Another argument made by the Petitioners is that the Illinois EPA permitted a municipal

waste incinerator at this location, and the activities of a transfer station are a subset of a waste

incinerator and thus there should be no problem with issuing a permit here. This argument is

without any basis in law, since there is no provision of the Act that allows for a “lesser included

facility” to be effectively permitted by virtue ofpermitting a more comprehensive facility. Any

activities that may arguably overlap between a dedicated transfer station (as was proposed in the

instant case) and a municipal waste incinerator are ofno consequence, since the Illinois EPA was

not dealing with a transfer station. Simplyput, a permit issued to a municipal waste incinerator

is just that, and not (by consequence) also a

de facto

permit issued for a transfer statjon, or

treatment facility, or storage facility.

Finally, the Illinois EPA notes that the Petitioners offer one last flawed argument in

support of their motion for summary judgment. The Petitioners argue that it is well-settled that

the local siting authority is responsible for determining the scope of siting approval, citing to

Saline County Landfill, Inc. v. Illinois EPA, PCB 02-108 (May 16, 2002). The Petitioners ~tate

that in Saline County, the Board made it 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.” Petitioners’. motion, p. 6. This citation to the case is close, yet omits one small yet

important detail. In Saline County, the Board stated that the local siting authority considers not

only the location ofa proposed facility, but also its design. The changes referred to by the Board

in Saline County were changes to a facility’s design, not to the facility itself. In no case has the

Board given approval to a change in the type of facility granted through an application ofSection

39.2(e-5)

ofthe Act, and it should not do so here.

IV. CONCLUSION

The Petitioners’ arguments in the motion for summary judgment are without merit.

There are at the very least disputes in material facts, though the Board could and should easily

conclude that the facts are wholly consistent with the Illinois EPA’s position that the 1993

ordinance approved local siting for a municipal waste incinerator only. There was no siting for a

transfer station granted in 1993, and therefore there was no such siting approval that could be

transferred to Allied. Further, Section

39.2(e-5)

of the Act does not allow a unit of local

government to make a wholesale change in the type of facility that received a grant of loc~l

siting approval, such that a transferee of local siting receives siting ofa completely different type

offacility.

WHEREFORE, for the reasons stated above, the Illinois EPA hereby respe~tful1y

requests that the Board deny the Petitioners’ motion.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

..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: May 28, 2004

This filing submitted on recycled paper.

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on May 28, 2004, I served true

and

correct copies ofa RESPONSE TO PETITIONERS’ MOTION FOR SUMMARY JUDGMENT,

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

Charles F. Heisten

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

Bradley P. Halloran, 

Hearing

Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

William Mansker

Village ofRobbins

3327 West 137th Street

Robbins, IL 60472

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

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)