BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
copy
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
VILLAGE OF ROBBINS and ALLIED
)
JUN 142004
WASTE TRANSPORTATION, INC.,
)
PoJIut~cj~
STATE OF
Control
ILLINOIS
Board
Petitioners,
)
)
vs.
)
Case No. PCBNo. 04-48
)
ILLiNOIS ENViRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
REPLY TO THE IEPA’S RESPONSE TO THE
PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
NOW COME the Petitioners, VILLAGE
OF ROBB1NS, ILLiNOIS,
and ALLIED
WASTE TRANSPORTATION,
INC.,
by and through undersigned counsel ofrecord, and hereby
respectfully submit their Reply to the IEPA’s Response to the Petitioners’ Motion for Summary
Judgment for modification of a solid waste management facility permit and, in support thereof,
state as follows:
I.
THERE ARE NO GENUINE ISSUES OF
MATERIAL
FACT.
The Respondent, Illinois Environmental Protection Agency (“IEPA”), argues that there
are genuine issues ofmaterial fact that preclude the entry ofsummary judgment in this case. In
support of this argument, the Respondent alleges that there is some question regarding the type
of facility that was approved by the Village of Robbins in 1993. However, the evidence
contained in the record unequivocally shows otherwise, as the record clearly establishes that the
facility approved by the Village of Robbins on February 9, 1993 was intended to be a “pollution
control facility,” which can, by legal definition, include components of a waste storage site,
sanitary landfill, waste disposal site, waste transfer station, waste treatment facility and/or a
waste incinerator.
See
415 ILCS
5/3.330.
Despite the clear language set forth in the Village of Robbins ordinance, the Respondent
contends that there is somehow a question offact regarding what type offacility was intended by
the Village ofRobbins because (1) a copy of the application was not provided to the IEPA or the
PCB, (2) the 1993 Village of Robbins ordinance makes a minimal reference to a “waste-to-
energy facility” and the generation of electricity, (3) the 1989 ordinance passed by the Village of
Robbins refers to a “solid waste energy facility”, and (4) documents relating to the 1989
ordinance state that the facility is not intended to act as a waste transfer station. All of these
arguments must fail, as none of them establish that a genuine issue of material fact exists with
respect to the facility approved by the Village of Robbins in 1993.
Respondent’s first contention (that there is a question of fact because the application for
the facility was not provided) is completely unfounded. The language of a statute itself is the
most reliable indicator of the legislator’s objectives in enacting a particular law.
In re D.D.,
196
Ill.2d 405, 752 N.E.2d 1112 (Ill. 2001).
It is a well-established principle of statutory
construction that the words used in a legislative enactment are to be given their plain meaning.
People ex. rel. Department ofProfessional Regulation v. Manos,
202 Ill.2d
563,
782 N.E.2d 237
(Ill. 2002). When the words are unambiguous, there is no need to look to extrinsic sources to
determine their meaning.
Id.
This principle is applicable to this case and the ordinance at issue.
Based on the plain language set forth in the ordinance itself, it is clear that the Village of
Robbins intended to approve a “pollution control facility.” In fact, the February 9, 1993
ordinance specifically makes reference to the facility as a “pollution control facility” in four
different locations, most notably in the title of the ordinance itself. R. 064-70. Nowhere in the
ordinance is the facility referred to as any other type of facility.
See id.
Because there is no
question that the Village of Robbins intended to approve a “pollution control facility”, a
2
specifically defined term in the Illinois Environmental Act, there is no need to resort to the
application to interpret what the Village ofRobbins approved.
Additionally, the Respondent is simply incorrect in asserting that the Village ofRobbins
somehow intended to approve only an incinerator through its 1993 ordinance simply because the
ordinance makes a parenthetical reference to a “waste-to-energy facility” and indicates that the
facility will “generate electricity from the combustion of municipal waste.” R. 069, 070. It is
well-settled that when interpreting a legislative enactment, a court must give effect to the entire
statutory scheme, rather than looking at words and phrases in isolation from other relevant
portions of the statute.
Carrol v. Paddock,
199 Ill.2d 16, 764 N.E.2d 1118 (Ill. 2002). Tn this
case, reading the ordinance as a whole establishes that the Village of Robbins intended to
approve a “pollution control facility.” While there is a parenthetical reference to a “waste-to-
energy facility” and one reference to electricity generation, there is no evidence contained in the
ordinance that the Village of Robbins intended only to approve a facility that would be used
exclusively as an incinerator, as suggested by the Respondent. In fact, the ordinance does not
even contain the word “incinerator.”
See
R. 064-070. When read as a whole, it is clear that the
ordinance intended that the facility be used as a “pollution control facility” and did not intend it
to be limited in its use in the manner suggested by the Respondent.
The Respondent’s further contention that the facility must have been intended to be
approved as only an incinerator because of references contained in the 1989 ordinance is also
entirely without merit. While it is true that the 1989 facility did refer to the approved facility as a
“solid waste energy facility,” this does not prove that the facility approved in 1993 was intended
to be operated solely as an incinerator, fortwo reasons. First, the 1989 ordinance does not define
a “solid waste energy facility”, and there is no definition for such a phrase contained in the
3
Illinois Environmental Protection Act. Therefore, there is no support for the Respondent’s
presumption that this description of the facility somehow implies that the facility approved by
the Village of Robbins was for an incinerator and an incinerator only. Furthermore, even if the
Village of Robbins intended such a meaning to be attached to the phrase “solid waste energy
facility” in its 1989 ordinance, the fact that the 1993 ordinance does not include such a phrase
actually clearly supports Petitioners’ argument that the 1993 facility was intended to be more
than an incinerator. Had the Village of Robbins intended the 1993 facility to only be an
incinerator or solid waste energy facility, it would have expressly so stated in the 1993
ordinance.
See Carver v. Bond/Fayette/Effingham Regional Board of School Trustees,
203
Ill.App.3d 799,
561
N.E.2d 135 (5th Dist. 1990) (explaining that the legislature uses terms in a
statute that convey its intent). It is particularly telling that the Village Board specifically
excluded any descriptive term for the facility, other than “pollution control facility”, particularly
in light ofthe inclusion ofa more descriptive term in the 1989 ordinance. The fact that the 1993
ordinance is devoid of a reference to the facility as a “solid waste energy facility”, or any similar
term establishes that the Village did not intend for the facility to be limited to only solid waste
energy operations when it approved the facility in 1993. Consequently, Respondent’s argument
that the 1989 ordinance somehow establishes that the 1993 ordinance approves only an
incinerator is also entirely without merit.
Moreover, the Respondent’s assertion that a document provided by the applicant in May
of 1989 somehow defines the parameters of the approval provided by the Village in 1989 or
1993 is simply ludicrous. In fact, the very document that the Respondent relies upon its attempt
to establish that the facility at issue was not granted approval to act as a waste transfer station
4
conclusively proves that the facility is a waste transfer station, as was explicitly found the Illinois
Environmental Protection Agency. The very document cited by the Respondent provides:
DLPC has also determined that the facility will be a regional pollution
control facility used as a garbage transfer station
during periods when one or
more of the Refuse Derived Fuel trains or a Fluidized Bed Boiler is down.
Section 22.14 ofthe Illinois Environmental Protection Act requires than sic such
facilities be located more than 1000 feet from any dwelling or property zoned for
primarily residential use. A written certification of the compliance with this
provision ofthe Act is required as part ofthis permit application.
R.
55
(emphasis added). This statement makes clear that the Illinois Environmental Protection
Agency concluded that the facility, as sited by the Village ofRobbins, would be used a transfer
station. Despite the fact that the IEPA clearly believed that the sited facility was a waste transfer
station several years ago, the IEPA now disingenuously (and bordering on bad faith) argues that
the facility is not a waste transfer station. Clearly, such an argument is without merit because the
Agency’s own interpretation of the siting approval granted to the facility establishes that the
facility would serve as a waste transfer station.
Furthermore, the Respondent’s reliance on the applicant’s 1989 response to the IEPA’s
inquiry about the facility serving as a waste transfer station is misplaced. In fact, the applicant’s
response to the IEPA’s comments in 1989 is completely irrelevant to the issue at hand because,
pursuant to section 39.2 of the Illinois Environmental Protection Act, the local governing body
approves or disapproves site location approval. See 415 ILCS
5/39.2.
As such, the local siting
authority determines the scope of the approval. Based on the application supplied by the
applicant, the Village of Robbins clearly believed (just as the IEPA did) that it was granting
siting approval to a facility that would act in part as a transfer station. Therefore, it is irrelevant
that the applicant later suggested that it was not intending to operate a transfer station after the
siting approval had already been granted.
5
Finally, the Respondent’s reliance on the document presented by the applicant to the
IEPA in 1989 is irrelevant because the facility approved in 1989 was an entirely different facility
than the one approved in 1993. In fact, the siting approval for the 1989 facility was reversed and
a new application was provided in 1992 and approved by the Village ofRobbins in 1993. It was
approval ofthat facility that is at issue here. Although the Respondent assumes that the scope
and description of the proposed facility did not change between 1989 and 1993, the Respondent
has no support for such an assumption. Consequently, it is entirely improper for the Respondent
to assert that information provided by the applicant related to the facility proposed in 1989
(which was not sited) has any bearing whatsoever on the scope ofVillage’s approval in 1993.
For the reasons set forth above, there is no issue ofmaterial fact in this case. Rather, it is
completely clear that in 1993, the Village of Robbins approved the operation of a pollution
control facility, which would encompass the operation of, among other things, a waste transfer
station.
See
R. 076. Consequently, Petitioners’ Motion for Summary Judgment for modification
ofa solid waste management facility permit should be granted.
II.
THE PETITIONERS HAVE CORRECTLY APPLIED SECTION
39.2(e-5),
WHICH REQUIRES THAT THE REQUESTED PERMIT
MODIFICATION BE GRANTED.
The Respondent unconvincingly argues that section
39.2(e-5)
of the Illinois
Environmental Protection Act does not apply to this case because the Village of Robbins is
attempting to “change” its siting approval to an entirely new and different facility. However, that
is clearly not what the Petitioners are attempting to accomplish. Rather, the Petitioners are
simply establishing that as the local siting authority, the Village of Robbins possesses the
authority to make clear that the approval granted to Robbins Resource Recovery Company many
years ago was meant to allow the facility to operate, in part, as a solid waste transfer station.
6
Furthermore, the Village is asserting its clear right to allow the new operator of the facility,
Allied Waste Transportation, Inc., to operate the facility primarily as a waste transfer station
because the siting approval previously granted to the pollution control facility was “sufficiently
broad to cover the proposed use ofthe Property and the Facility.” R. 076. Such acts are not only
improper, as asserted by the Respondent, but, rather, they are expressly allowed by section
39.2(e-5).
The Respondent employs a circular, strained argument to support its conclusion that
section 39.2(e-5) is inapplicable. The.Respondent’s entire argument is flawed, however, because
it is based on the presumption that the siting approval granted by the Village ofRobbins in 1993
was for a waste incinerator.
Such a presumption is entirely unfounded because there is
absolutely no support for the Respondent’s assertion “that the 1993 ordinance granted siting
approval for a municipal waste incinerator, and not a waste transfer station.” Respondent’s
Response, p. 8. In fact, as set forth above in Part I, the 1993 ordinance never makes any mention
ofthe term incinerator but, rather, repeatedlyrefers to a “pollution control facility.” As such, it is
inappropriate for the Respondent to assume and base its entire argument on the assumption that
the facility was approved exclusively as an incinerator.
Based on the Respondent’s erroneous assumption that the Village of Robbins approved
only an incinerator in 1993, the Respondent asserts that the Village’s decision to allow Allied
Waste Transportation, Inc. would be “wholesale change” in the approval granted by the Village
in its 1993 ordinance. However, it is clear that the Petitioners are not seeking such a “wholesale
change” because the facility, as approved in 1993, was not to act exclusively as a waste
incinerator but was to have many transfer station components, as is made clear by the IEPA
7
permits issued to the facility.1 Therefore, the Petitioners are not attempting to change the “type
of facility,” as asserted by the Respondent. Rather, the Petitioners are simply attempting to have
the facility operate within the parameters ofthe approval granted to the facility in 1993, but with
a slightly different focus.
Because the Respondent clearly misunderstands the Petitioners arguments, the
Respondent asserts that it is unimportant that the siting authority granted by the Village of
Robbins for the facility encompassed waste transfer components. However, such a fact is
entirely relevant because it establishes that the Petitioners are not attempting to entirely change
the type of facility approved, but are merely intending to slightly modify the focus of the
operations at that facility. Because the 1993 approval by the Village ofRobbins clearly allowed
that facility to act as a transfer stations in many aspects ofits operation, the modification being
sought by the Petitioners is clearly allowed by section
39.2(e-5),
and should be granted.
Finally, the Respondent asserts that it is irrelevant that the facility to be operated by
Allied Waste Transportation, Inc. is less damaging to the environment than the facility
envisioned by the Village when it granted approval in 1993. However, that is clearly a relevant
consideration, as set forth by this Board in
Waste Management ofIllinois, Inc. v. IEPA,
PCB 94-
153 (July 21, 1994). In
Waste Management,
this Board found that no additional siting approval
was required where a requested permit modification would result in decreased potential impact
to the environment.
See id.
at 7. Likewise, in this case, no new siting approval should be
required because the impacts to the environmental will actually be reduced by the permit
modification sought by the Petitioners.
The Respondent asserts that there are genuine issues of material fact because these permits are not contained in the
record. In order to clearly establish that no genuine issue of material fact exists, the Respondent is filing a
request to supplement the record to include these permits, which is forthcoming.
8
For the reasons set forth above, section
39.2(e-5)
explicitly allows the modification
sought by the Petitioners because the Petitioners are seeking a modification that comes within the
scope of the original siting approval granted to the facility. Consequently, Petitioners’ Motion
for Summary Judgment for modification of a solid waste management facility permit should be
granted.
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.
Dated: June 11,2004
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully Submitted,
VILLAGE OF ROBBINS and ALLIED WASTE
TRANSPORTATION, INC., Petitioners
This document utilized 100
recycled paper products
By:
Heisten
Attorneys
70410988v1 820753
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty ofperjury under the laws ofthe United States of America, certifies that
on June 11, 2004, a copy ofthe foregoing was served upon:
Dorothy M. Gurin, 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
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, 11th Floor
Chicago, Illinois 60601
Mr. William Mansker
Village ofRobbins
3327 W. 137th Street
Robbins, IL 60472
Steve Smith
Allied Waste Transportation, Inc.
13701 South Kostner
Crestwood, IL 60445
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Chicago, Illinois,
proper postage prepaid, before the hour of 5:00 P.M., addressed as above.
4u~7’~
HINSHAW & CULBERTSON
100 ParkAvenue
P.O. Box 1369
Rockford,IL 61101
(815)490-4900
This document utilized 100 recycled paper
70411389v1 820753
