ILLINOIS POLLUTION CONTROL BOARD

July

18,

1996

C & S RECYCLING, INC.,

)

Petitioner,

)

PCB 95-100

)

(Permit Appeal

Land)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

ORDER OF THE

BOARD

(by

Dunham):

Motion for Stay

On June 3,

1996,

C & S Recycling

(C & S) filed a Motion to Stay

Proceedings along

with its Status Report.

C & S has waived the decision deadline until May

1997.

The

Illinois Environmental Protection Agency

(Agency) filed its Status Report

and Objection to

Petitioner’s Motion to

Stay Proceedings

on June 10,

1996.

C &

requests a stay in this matter until December

1996 while

it pursues

legislation

which may render this proceeding moot.

C &

S reports that H.B.

1089 which provides an

exemption to the setback requirements of Section 22.14 of the Environmental Protection Act

(Act)

(415

ILCS

5/22.14

(1994)) has

passed the Senate and is currently before the Rules

Committee ofthe House ofRepresentatives.

C &

intends to pursue passage of the bill

during the fall veto session of the 1996 legislature.

C & S maintains that passage ofthe bill

would render the permit appeal moot.

The

Agency requests that the Motion for Stay be denied and that the Board decide the

Agency’s Motion for Summary Judgment which is currently pending before

the Board.

The

Agency maintains that even ifH.B.

1089

is enacted the petitioner would be required to file a

new permit application.

The Agency

argues that petitioner would not be prejudiced if the

Board were to

deny the motion to stay.

The Agency contends that continuing to stay this

matter,

especially if the proposed bill

is not passed during the fall veto session, would result in

a waste ofAgency and Board resources.

The Agency asserts that it is prepared to move

forward on the merits of this case.

The Board has previously granted stays in this matter by order of November

16,

1995

and April 4,

1996 to allow petitioner to pursue changes in the legislation.

The

Board will not

continue to

stay this matter since

the pending appeal does not affect petitioner’s attempts to

pursue a change

in the legislature.

The Board hereby denies

the motion for

stay.

Having

denied the motion for

stay

the

Board will proceed to decide the motion for summary judgment.

Motion for

Summary Judgment

On September

15,

1995, the Agency filed a “Motion for Summary Judgment”.

Petitioner has not filed a response to

the motion for summary judgment.1

Pursuant to

Ill.

Adm.

Code 103.140(c) petitioner is deemed

to have waived objection to

the granting of the

motion,

but such waiver does not bind the Board in its

determination.

C &

Recycling’s petition seeks

review of the Agency’s February

10,

1995

denial of

its

application for a permit to

develop and operate a solid waste management

site in the City of

Chicago.

On November

18,

1994, petitioner filed an application for

a permit to develop and

operate a municipal waste transfer station.

its

February 10,

1995

denial letter, the Agency

states that one reason for denial was that the application failed to demonstrate that the

proposed facility is located at least 800 feet from the nearest residence or property

zoned for

primarily residential uses as required by

Section 22.14 ofthe Act (415 ILCS

5/22.14

(1994)).

The

Agency maintains that there is no genuine

issue as to any material fact in this

matter.

The Agency states that Section 39(1) of the Act (415 ILCS

5/39(1)

(1994)) prohibits

the issuance of a permit for a facility located within the boundaries of any setback zone

established by the Act.

The

Agency contends

that petitioner’s

application states that the

facility is approximately

300 feet from the nearest residential

district.

(Rec. at 42.)

The record

also states that the facility has been in operation since November

1989.

(Rec. at

2 &

108.)

The Agency maintains that issuance of the permit would violate Sections

39(1) and 22.14 of the

Act (415 ILCS

5/39(1)

and

22.14

(1994)).

In its petition, the petitioner asserts that Section 22.14

applies prospectively to permit

applications filed on or after the effective date of December 22,

1994.

(Pet.

4.)

The

Agency

contends that when

reviewing a permit application the law to be applied is the law that is in

effect when the decision is made and not when the application is filed.

(Gallatin National Co.

IEPA (January

18,

1991), PCB 90-183; City of Herin v. IEPA (March

17,

1994), PCB 93-

195;

Ziffrmn v.

U.S.,

318 U.S.

73,

S.Ct.

465

(1943).)

The Board finds that there are no genuine

issues of material

fact,

so the motion for

summary judgment is properly before the Board.

The

Board finds that the law to be applied

when

reviewing a permit application is the law in effect at

the time the decision is made.

This

finding

is supported by

the case

law cited by the Agency.

Therefore,

for the Agency to

issue

the permit in this matter petitioner must show that the proposed facility would not violate the

Act in effect on February

10,

1995,

the date of the Agency’s denial letter.

Based on the

Pursuant

to 35 Ill. Adm.

Code

103.140(c) a party may file a response to

a motion within

seven days after service of the motion.

The time allowed for the filing of a response

lapsed

prior to the filing of a motion for

stay by the petitioner.

application,

petitioner admits that the proposed facility does not satisfy the statutorily required

setback requirements.

(Ag.

Rec.

at 42, 44

and

45.)

Section 22.14(b) provides an exception

to the setback requirement of Section 22.14(a)

for

facilities used as a garbage transfer station within one year prior to ianuary 1,

1988.

(415

ILCS

5/5/22.14(b).)

According to the petition for review

and documentation

submitted in

support ofthe application,

petitioner admits that the recycling facility has

been in operation at

this location since November

1989.

(Ag.

Rec.

at 2

108.)

The Board finds that the exception

the setback rule does not apply to this facility since

it began operation after January

1988.

Therefore,

issuance of a permit for the proposed facility would result in a violation of

the Act.

Petitioner also contends that it is subject only to the home rule requirements of the City

of Chicago

and not to the setback requirements of Section 22.14.

(Pet.

at 4.)

The Agency

maintains that the home rule

exemption is not applicable because

Section 22.14

is a permit

standard and not a siting requirement.

The Board agrees that the home rule exemption does not apply to permitting

issues

and

therefore is not applicable to

this appeal.

Petitioner also asserts that Section 22.14 is unconstitutional and deprives petitioner of

its

rights to due process,

equal protection, uniformity of laws and constitutes a taking without

just compensation.

Having found that issuance of the permit would

violate the Act,

the Board

finds that it is unnecessary to further consider petitioner’s constitutional

objections to Section

22.14 ofthe Act.

Further, even if the Board found

in favor of the petitioner on these

arguments, without a legislative change

in the Act,

issuance of the permit would still result in

a violation of the Act.

The Board grants the respondent’s motion for summary judgment.

The Board affirms

the Agency’s denial of the permit.

This docket

is hereby closed.

IS SO ORDERED.

Board Member J.

Theodore Meyer dissented.

Section 41

of the Environmental Protection Act,

(415 ILCS

5/41

(1994)),

provides for

appeal of final orders of the Board within 35

days of the date of service of this order.

The

Rules of the Supreme Court ofIllinois establish filing requirements.

(See

also 35

Ill. Adm.

Code 101.246,

Motion for Reconsideration.)

I, Dorothy M.

Gunn,

Clerk oft

Illinois Po lution Control Board,

hereby certify that

the above order

was adopted on the

day of~~’-~

1996,

by a vote of

Dorothy M.,9~nn,Clerk

Illinois PolJj4ion Control Board