CLERK’S OFFICE

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARD

JAN

1

‘12005

IN

THE

MATTER OF:

)

STATE OF ILLINOIS

)

Pollution Control Board

PETITION OF

JO’LYN CORPORATION

)

and FALCON WASTE AND RECYCLING,

)

AS 04-02

INC. for an ADJUSTED STANDARD from

)

(Adjusted Standard

—

Land)

portions of 35 III.Adm.Code 807.103 and

)

35 III.Adm.Code 810.103, or in the

)

alternative, A FINDING OF

)

INAPPLICABILITY.

)

NOTICE

OF FILING

To:,

(See attached

Service List.)

PLEASE TAKE NOTICE that on this

14th

day of January 2005, the following was filed

with

the

Illinois

Pollution

Control

Board:

Petitioners’

Post-Hearing

Brief,

attached

and

herewith served

upon you.

JO’LYN CORPORATION

and

FALCON WASTE AND RECYCLING,

INC.

By:~~~~j

9~

ç

Eliz~b~th

S.

Harvey

/

\~~oh1’ey

for Petitioners

Elizabeth

S.

Harvey

SWANSON, MARTIN

& BELL

One

IBM

Plaza,

Suite 3300

330 North Wabash Avenue

Chicago,

Illinois 60611

Telephone:

(312) 321-9100

Firm

I.D.

No.

29558

CERTIFICATE OF SERVICE

I, the

undersigned

non-attorney,

state that

I

served

a copy of

the

above-described

document to

counsel

of record

in the

above-captioned matter via U.S. Mail at One IBM Plaza,

Chicago, IL 60611

on or

before 5:00

p.m. on January

14, 2005.

/~/~tLttt

~Od~r~-~

(~p~te

M.

Podlin

x

Under penalties as provided

by law

pursuant to

735 ILCS 5/1 -1 09,

I

certify

that the statements set forth

herein

are true and correct.

---

6332-002

SERVICE LIST

AS 04-02

(Adjusted Standard

—

Land)

Mr. John J.

Kim

Division of Legal Counsel, IEPA

1021

North Grand Avenue

East

P.O. Box 19276

Springfield,

IL 62794-9276

---

CLERK’S OFFICE

JAN

1

‘12005

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARØATE

OF

ILLINOIS

Pollution Control Board

INTHE

MATTER OF:

)

)

PETITION OF JO’LYN CORPORATION

)

and

FALCON WASTE AND RECYCLING,

)

AS 04-02

INC. for an ADJUSTED STANDARD from

)

(Adjusted Standard

—

Land)

portions of 35 lII.Adm.Code

807.103 and

)

35 llI.Adm.Code 810.103, or

in the

)

alternative, A FINDING OF

)

INAPPLICABILITY.

)

PETITIONERS’ POST-HEARING BRIEF

Petitioners

Jo’Lyn

Corporation

(“Jo’Lyn”)

and

Falcon

Waste

and

Recycling,

Inc.

(“Falcon”) (collectively,

“petitioners”), by their attorneys Swanson,

Martin

& Bell, hereby submit their post-hearing

brief.

INTRODUCTION

Petitioners seek

a

finding that the

granulated

bituminous shingle

material

(GBSM) that

they

purchase

and

use

for

a

paving

product

called

Eclipse

Dust

Control (EDC)

is not a waste, such that petitioners are not required to obtain

local

siting approval and comply with the

Board’s waste regulations.

In the

alternative,

if the

Board

finds

that GBSM

is a waste,

petitioners seek

an

adjusted

standard

from specific sections of the waste regulations.

Petitioners have previously made

several filings, containing legal arguments,

information, and

exhibits

in support of

their

request.1

Petitioners

will

not

repeat the

arguments

made

in

those

filings,

and

refer

the

Board

to

the

filings

in

this

case.

Instead,

petitioners take

this

opportunity

to

provide

additional

information,

as

requested

by the

Board

in

its

1

Petitioners

have

filed

a

petition

for

adjusted

standard

(April

21,

2004),

an

amended

petition

(July

8,

2004),

a

supplement

(July

14,

2004),

and

a

response

to

the

Agency’s

recommendation (September 3, 2004).

---

October

7, 2004 order and

at hearing, and further legal argument regarding

whetherGBSM is a waste.

Pursuant to

its October 7, 2004 order, the Board held a hearing in this

matter on December 22, 2004.

Petitioners presented

two

witnesses:

Kathy

Powles, of Jo’Lyn

and

Falcon2, and David Foulkes of IKO3.

Ms.

Powles testified

on the operations of the facility, the specifications of Eclipse Dust Control (EDC),

and other operational

issues.

(Tr. at

11-127.)

Mr.

Foulkes,

of IKO,

testified to

the components of the GBSM and the

history of IKO’s

interactions with the

Illinois

Environmental

Protection Agency (Agency).

Mr.

Foulkes also testified that other

states allow the

use of GBSM

as a paving product.

(Ti. at 128-171.)

There

were

a

number

of

members

of

the

public

in

attendance

at

the

hearing,

including

Senator

Pam

Althoff.

Several

members

of the

public

made

comments in

support of this

petition, including

Beverly Meuch

of the

Lou

Marchi

Total

Recycling

Institute

(Tr.

at

62-63);

Mr.

Lowe

(Tr.

at

64-66,

70);

Michael

Murray,

Heartland

Township

Commissioner

(Ti.

at

66-67);

Jean

Niemann,

commenting as

a

citizen

and as solid waste coordinator for

McHenry

County (Ti.

at

67-69);

Laura

Stevens

(Tr.

at

69);

Pamela

Marsh

(Tr.

at

70);

and

William

Turley,

executive

director

of the

Construction

Materials

Recycling

Association

(Tr.

at

171-175).

Additionally,

Mike

Mitchell,

executive

director

of

the

Illinois

Recycling

Association,

gave

testimony

in

support

of the

petition.

(Ti.

at

176-

2

Ms. Powles is vice president of Jo’Lyn

and president of Falcon.

(Tr.

at 12.)

IKO is

the

shingle manufacturer, located

in

Bedford

Park,

Illinois,

with which

petitioners

have

a contract

for the

purchase of the

GBSM.

IKO

is

the entity

which

received,

in

1993,

the

Agency’s

determination that GBSM

is not a waste when used

for a paving product.

(See

Exhibit

D, attached

to adjusted standard

petition.)

2

---

182.)

This public support

is

in

addition to the support already generated for the

petition.

(See Petition,

Exhibit G, and Public Comments #1 -#12.)

GBSM

IS

NOTAwaste

As

demonstrated

in

the

petition

for

adjusted

standard

and

in

petitioners’

response

to

the

Agency’s

recommendation,

GBSM

is

not

a

waste

under

the

Environmental

Protection Act.

Petitioners ask the

Board

to specifically find that

GBSM

is

not

a waste.

If the

Board

so finds,

there

is

no

need for

an

adjusted

standard.

First,

in

1993 the Agency itself determined that GBSM

is not a waste when

used for

a

paving

product.

That

determination was

issued

to

IKO Chicago

(the

entity

from

which

petitioners purchase their GBSM), and

provides that GBSM

is

not

a

waste

when

used

for

the

specific

paving

applications

set

forth

in

the

determination.

Petitioners’ process uses the

GBSM

in

the manner allowed by the

waste determination.

(See Petition, p.3

and

Exhibit

D;

Response, pp. 4-6.)

It

is

unclear why

the

Agency seeks to

repudiate

its

own

waste determination

letter.

The Agency

has

not

stated

a

reasonable

basis for

its

refusal

to

follow

its

own

determination,

as to GBSM

from

the

same source.

The Agency correctly found,

in

1993, that GBSM

is

not a waste when

used for paving applications.

The Board

should adopt that Agency determination, and find that GBSM

is not a waste.

Second,

the

GBSM

does

not

fit

the

definition

of waste.

The

Act defines

“waste” as “any garbage,

sludge.

.

.or other discarded material.”

(415

ILCS 5/3.53

(emphasis added).)4

The GBSM

is not discarded, and

is

a useful material sold to

The same definition is used in Section

807.104 of the Board’s rules.

3

---

petitioners for further use.

Since the

material

is

not discarded,

and

does

not fit

any of the other items in the definition of waste, the

GBSM

is not a waste.

This

interpretation

is

supported

by

the

Illinois

Supreme

Court’s

recent

decision

in

Alternate

Fuels,

Inc.

v.

Director

of

the

Illinois

Environmental

Protection Agency,

No. 96071,

2004

III.

LEXIS

1616 (October 21,

2004)(”AFl’~.5

Petitioners have discussed,

in their previous filings, the appellate court’s

decision

in

AFI,

337 III.App.3d 857, 786 N.E.2d

1063, 272 III.Dec.

229

(5th

Dist.

2003).6

In

its

decision,

the

appellate court found that

plastic materials processed

and

sold

for use as fuel are not waste,

because the plastic materials are not “discarded”.

On

October

21,

2004,

the

Illinois

Supreme

Court

upheld

the

appellate

court’s

decision.

The

supreme court

reviewed

the

facts

of the

case,

and

then

applied those

facts to the statutory definition of waste.

The court noted

that the

term

“discarded”

is

not

defined

in

the

Act,

but

turned

to

the

definition

of

“recycling,

reclamation

or

reuse”,

which

also

uses

the

word

“discarded”.

The

court found that,

pursuant to

that definition,

materials are

“discarded” only if the

materials are not returned to the economic mainstream.

The court held:

We

therefore

reject

the

Agency’s

contention that

“discarded”

is

defined

solely

from

the

viewpoint

of the

supplier

in

that

a

material

is

putatively

“discarded”

as

“any

material

which

is

not

being

utilized

for

its

intended

purpose”

of the

generator.

There

is

nothing

in

the

statute

which

would

dictate

this

definition.

Rather,

the

Act

contemplates

that

materials

that

may

otherwise

be

discarded

by

the

suDplier

may

be

diverted

from

becoming waste and returned to the economic mainstream.

AFI,

2004

Ill.

LEXIS 1616, *33

For the Board’s convenience, the Illinois Supreme

Court’s decision

is attached

as Exhibit

L.

(Exhibits A-G are attached

to the petition, Exhibits

H-I are

included with the amended petition,

and Exhibit

K is attached to the supplement to the petition.)

6

See Petition, pp.5-6,

and Response,

pp. 6-9.

4

---

This

statement

applies

directly

to

the

GBSM

used

by

petitioners.

Petitioners purchase the

GBSM, which might otherwise be discarded7, and

return

the

GBSM

to the economic mainstream by producing

Eclipse

Dust Control.

The

supreme court’s

opinion, affirming

both the appellate and

the

trial

court,

is

clear

and

definite:

a

material

is

not

a

waste

if

it

is

returned

to

the

economic

mainstream.

The Board should follow the supreme court’s decision,

and find that

GBSM

is

not a waste.

On November 12,

2004, the Agency filed

a petition for rehearing of the

AF!

decision.

That

petition

remains

pending

with

the supreme court, with

action

on

the request for

rehearing

expected

in

early

February.

Although

the

decision

is

not technically “final”

because of the

pending

request for

rehearing,

the decision

is

effective,

and states

the

law

in

Illinois.

“The

filing of

a

petition for rehearing

does

not alter the effective date of the judgment of a reviewing court unless that

court

allows

the

petition

for

rehearing.”

PSL

Realty

Company

v.

Granite

Investment Company,

86

III.2d 291, 427 N.E.2d 563, 570,

56 Ill.Dec.

368 (1981).

See

also

Salsitz

v.

Kreiss,

198

lll.2d

1,

761

N.E.2d

724,

734,

260

lll.Dec.

541

(2001).

In

short,

petitioners ask the

Board to find that GBSM

is

not

a

waste,

and

thus not subject to the

statutes and

regulations

governing

waste.

The GBSM

is

not

discarded,

but

is

returned

to

the

economic mainstream

as

a

useful

paving

product.

The supreme court’s decision

in

AFI

is clear and controlling:

a

material

that

is returned to the economic mainstream is not a waste.

The Board itself,

in

a

Mr.

Foulkes

of

IKO

testified

that

the

GBSM

generated

at

IKO

is

discarded

only

if

no

purchaser can be found.

In

all of IKO’s

plants

in other states,

IKO sells

the GBSM to businesses

which use it for paving applications.

(See Tr. at 134-1 35,

146-148.)

5

---

case

related

to

the

AFI

decision,

has

held

that

such

material

is

not

a

waste.

Illinois Power v.

IEPA,

PCB

97-35

and

97-36

(January 23,

1997).

Additionally,

the Agency has previously determined that this

GBSM, from

IKO,

is

not

a waste.

It

is

clear,

from

court and

Board

decisions,

as well

as

the Agency’s

own

1993

determination,

that

GBSM

is

not

a

waste.

Petitioners

ask

the

Board

to

specifically find that GBSM

is not a waste.8

REQUEST FOR ADJUSTED STANDARD

If the

Board disagrees, and believes that the

GBSM

is

a waste,

petitioners

seek

an

adjusted

standard.

As

noted

above,

a

great deal

of information

has

previously been

submitted to the

Board

in

support of the request for an

adjusted

standard.

In

this

brief,

petitioners will take the opportunity to

answer questions

raised at hearing, and to address other remaining

issues.

Issues raised at hearing

There

were

several

questions

asked

at

hearing,

by the

Agency

and

by

Board staff, for which petitioners now provide answers and further information.

Experiences

in other states

Mr.

Foulkes

of

IKO

testified

that the

GBSM

from

IKO

facilities

in

other

states (Delaware,

Ohio,

and Washington)

is

used

for

paving applications,

and

is

not

landfilled as a waste.

In

most of those applications

in other states, the

GBSM

is

used

as an

ingredient

in

hot

mix paving.

Illinois

is the only state

in

which

IKO

has

had

issues with

regulatory

authorities about the

use of

GBSM as

a

paving

product.

(Tr.

at

134-135.)

In

the

early

1990s

the

Agency

insisted

that

IKO

If the

Board so finds, there is no

need for an adjusted standard,

and

all remaining issues

are moot.

6

---

Chicago (as the Bedford Park plant

is known) change the way

it handled

its

waste stream,

including

GBSM.9

In

early

1993,

IKO submitted

two

requests

to

the Agency:

one for a waste determination that the

GBSM was

not

a waste when

used

for

paving

applications,

and

one

for

special

waste

declassification.

The

documentation

submitted

to

the

Agency,

and

the

Agency’s

responses,

were

admitted

at

hearing

as

Exhibit

5

and

Group

Exhibit

6.

As

a

result of

that

submission,

in May 1993 the Agency issued the waste

determination at issue

in

this

case,

finding

that

IKO’s

GBSM

is

not

a

waste

when

used

for

paving

applications.

After submitting additional

information,

IKO then

obtained

a

letter

from

the

Agency declassifying

the

remainder of

its

waste

stream

from

special

waste.

(Tr. at 137-142.)

As

Mr.

Foulkes testified, the other states

in

which

IKO

is

located allow the

use of GBSM

in

paving applications,

and

have for

a

number of years.

Approvals

from

regulatory

authorities in

Delaware,

Indiana,

and

Ohio

were obtained

in

the

early

1990s,

and

remain

in

effect today.

(Tr.

146-147;

Group

Exhibit

6,

IKO’s

January

29,

1993

submission

to

the

Agency,

Appendix

E,

pp.

79-97.)

Those

other states have

allowed the beneficial use of GBSM for

paving purposes since

the

early

1990s,

while

in

Illinois the Agency has essentially

“revoked” their

1993

approval,

without

stating

a

reason.

Mr.

Foulkes testified that,

since

petitioners’

operations

are on

hold,

IKO Chicago

is forced to landfill most of its

GBSM.

The

GBSM

is

Iandfilled

only

because

Illinois

has

not

allowed

businesses

such

as

petitioners

to

operate.

(Tr.

at

148-149.)

This

contrasts negatively to the

other

The Agency insisted, at that time,

that IKO’s waste stream should

be classified as special

waste.

(Tr.

at 136-137;

142.)

7

---

states, which allow the use

of GBSM

in

paving

products,

and

thus

prevent the

landfilling of GBSM.

Comparison of test results to

regulatory standards

As

discussed

in

petitioners’

previous

filings,

GBSM

consists of

asphalt,

filler,

granules

(trap

rock),

and

mat

(either

fiberglass

or

organic,

such

as

cardboard).

(Supplement,

p. 2.)

At hearing, petitioners submitted

a great deal of

information

about

the

components of

GBSM,

their

lack

of

toxicity,

and

testing

results.

(Group

Ex.

6.)

Much of this

information was

provided,

by

IKO,

to

the

Agency

in

1993,

in

support of

IKO’s

request to

the

Agency for

a

determination

that

GBSM

is

not

a

waste.

As

Mr.

Foulkes

testified, the

testing results showed

that the GBSM

is not toxic.

(Tr. at 139-140.)

IKO’s

January

29,

1993 submittal

to

the Agency contains

a great deal of

information

demonstrating

that

the

GBSM

is

not

an

environmental

concern.10

lKO

had

a

full

range

of

TCLP

tests

performed

on

its

GBSM.

The

analytical

results, for

all

parameters,

were

below the

regulatory

criteria

established

in

40

CFR

Part

261.

(Group

Exhibit

6,

January

29,

1993

submittal

to

the

Agency,

Appendix

B,

pp.

22-27.)

The

testing

lab certified

that those results

were

below

regulatory

standards.

(Group

Exhibit

6,

January

29,

1993

submittal

to

the

Agency, Appendix

B,

p.

29.)

pH tested at 8.7,

well within the acceptable

range

for

corrosivity.

(Group

Exhibit

6,

January

29,

1993

submittal

to

the

Agency,

Appendix B,

p. 28;

35 IIl.Adm.Code 721.122(a)(1).)

10

Petitioners

encourage

the

Board

to

review

the

full

range

of

information

presented

in

Group Exhibit 6, especially the two submittals (January 29,

1993 and October 29,

1993) from

IKO

to

the

Agency.

Those

submittals

demonstrate conclusively

that

GBSM

is

not

hazardous,

and

presents no environmental

concerns.

8

---

The GBSM

is

not

hazardous under Part 721 of the

Board’s

rules.

It

is

not:

1) a listed waste; 2) derived from

a

hazardous waste treatment; or 3) a mixture of

hazardous waste.

GBSM

is

solid

and

does

not

generate

a

liquid,

and

it

is

not

hazardous

by

characteristic

(not

reactive,

ignitable,

corrosive,

or

toxic

by

characteristic

as

a

demonstrated

by

TCLP testing).

(Group

Exhibit

6,

October

29,

1993 submittal to the Agency, p. 5,

and Appendix A,

pp.

12-19.)

Additionally,

the

testing

results

presented

in

Group

Exhibit

6

are

below the

TACO

Tier

I

Soil

Remediation Objectives.

(35 lll.Adm.Code 742 Appendix B.)

The

non-hazardous,

non-threatening

nature

of

GBSM

is

further

demonstrated

by

the

fact

that,

in

1992,

Illinois

classified

reclaimed

asphalt

pavement

(RAP)

as

“clean

construction

or

demolition

debris”.

(415

ILCS

5/3.160(b).)

This action was taken after testing demonstrated that the

RAP has

no environmental

impact on humans or the environment.

Asphalt is a component

of GBSM.

(Group Exhibit 6,

January 29,

1993 submittal to the Agency, p.

5.)

The extensive testing conducted by IKO demonstrates

that

GBSM

is

not

hazardous,

does

not violate

any regulatory

standards,

and

does

not

present

a

threat to

health

or

the

environment.

While that testing

was

performed

in

1992

and

1993, the

results

remain applicable.

Mr.

Foulkes testified at hearing that the

ingredients used

by

IKO

have

not

changed

appreciably since

that time.

(Tr.

at

144.)

The only

real

difference

in the

shingles

produced

by IKO

is the

shape

of

the

finished

products:

the

raw

materials

are essentially the

same.

(Tr.

at

145;

Exhibit

7.)

In fact, IKO

is

more “vertically integrated”

now than

it was

in the early

1990s.

This

means that

IKO

produces the

majority

of its

raw materials,

rather

9

---

than buying

the

raw materials.

This

allows

IKO more control

over the

quality of

the

ingredients, as well

as

producing cost savings.

(Tr. at 145-146.)

Are there any roadways which

are not appropriate for application of EDC?

The Agency asked if there are any roadways which

are not appropriate for

the

application

of

EDC.

(Tr.

72-73.)

As

Ms.

Powles

noted,

EDC

is

not

an

appropriate

pavement

for

extremely

high-traffic

roads,

such

as

interstate

highways.

This

is

no different than

the fact that traditional

asphalt pavement

is

not

used

on

such

high-traffic

roads.

EDC

is

used

on

lower-traffic,

mostly rural,

roads,

in addition to on driveways and parking

lots.

EDC

is typically attractive to

people

who currently

have gravel

or

dirt

driving

surfaces.

EDC is

an

excellent

dust suppressant,

and

will

also

bind to the

top of existing

asphalt surfaces.

In

short, EDC is

used for lower-traffic applications, just like traditional asphalt.

How much GBSM

is currently at petitioners’ facility?

The

Agency

also

asked

how

much

GBSM

is

currently

at

petitioners’

facility.

(Tr.

76.)

While

petitioners

are

not currently

purchasing

GBSM,

while

they

wait for this

issue

to

be

resolved, there

is

GBSM

on

site from

purchases

made

prior

to

learning

that the

Agency

believe the

GBSM

is

a

waste.

(Tr.

at

124.)

Petitioners

currently

have

approximately

4,730

tons of GBSM

at

their

facility.

As

noted

in

the amended

petition, petitioners

have

sold essentially all

of

the

existing

supply,

with

installation of the

EDC delayed awaiting

the

conclusion

of this proceeding.

(See Amended Petition, pp.

10-11.)

10

---

How much GBSM

is needed to produce enough

EDC for a given

application?

The Agency asked whether there

is

a conversion factor to

determine how

much

GBSM

is

needed

to

produce

sufficient

EDC for

a

given

paving

project.

Petitioners

use

an

Excel

spreadsheet

to

calculate

both

the

amount

of

GBSM

needed and the

price for the

project.

Attached,

as Exhibit

M,

is

a

printout of the

results for

a hypothetical

project.

Assuming a driveway measuring 10 feet by 100

feet

(1000 square feet),

16.667 tons of GBSM

are needed.

Please note that the

reference to

“shingle thickness”

in

the

bottom

left corner

is

the thickness of the

GBSM before compaction.

Please also note that the

price information contained

on

Exhibit

M

is

also

hypothetical,

and

is

included

only

for

the

purposes

of

illustration.

Inspections of GBSM

There

was

quite

a

bit of discussion

at the

hearing

about

how petitioners

inspect

the

GBSM

they

purchase

to

insure

that only

GBSM,

without

any other

materials,

is

used

in the

process.

There are three separate visual inspections of

the GBSM.

Petitioners first inspect the

GBSM at the

IKO facility, prior to loading,

for any

material

not

GBSM.

Because

of the

high

quality

of

IKO’s

operations,

there has

never been anything

in

the GBSM

container which

was

not

GBSM, so

petitioners have never rejected

a

load.

However, if the visual inspection revealed

some

other

material

(such

as

scrap

paper

or

other

non-GBSM

material),

petitioner would decide whether to simply remove

it and take the

load, or to reject

the loadY’

(Tr.

at

125-126.)

A second

visual

inspection

is

done

at

petitioners’

Ms.

Powles’

reference

at

hearing

to

“rules

and

guidelines”

for

inspections

was

not

intended

literally.

(Tr.

at

99-101.)

There

are

no

formal,

independent

rules

or

guidelines for

11

---

facility

upon

arrival

of the

GBSM.

The third visual

inspection

occurs

when

the

material is

placed

into the

grinder.

It

is essential that the

feed stock consist only

of GBSM,

without any debris or foreign material.

The grinder could

be damaged

if debris entered the

grinder.

As

noted,

petitioners

have

never

encountered

any

debris

in

GBSM

obtained

from

IKO,

and

do

not

anticipate

such

a

situation.

However,

in

the

unlikely event that

a

load of GBSM was

found to

be unacceptable after

it arrived

at petitioners’ facility,

that load would

be rejected.

Petitioner’s contract with

IKO

specifically requires IKO to pay Jo’Lyn any charges incurred by Jo’Lyn for hauling

and disposal of any rejected GBSM.

(See Exhibit A;

Tr. at 84-89, 99-101.)

Height of the stockpiles of GBSM

Petitioners

do

not

allow the

stockpiles of GBSM

at their facility to exceed

25

feet.

This

limitation

exists

so

that the

height

of the

stockpile

is

below

the

height

of the

large trees

on

the

property.

Those trees

provide

a

natural

visual

barrier and

“fence” at the

facility,

so that the stockpiles

are

screened from

view.

Additionally,

there

is

a

possibility that the weight of the

material

could

cause the

lower

layers

of

GBSM

to

partially

bind

together.

This

would

adversely

affect

production time, and

make the grinding

process more expensive.

Can road

salt be used

on EDC?

The Agency inquired whether

road

salt can be used

on EDC.

(Tr. 96-97.)

Road

salt

can

indeed

be

used

on

EDC,

just

as

it

can

be

used

on

any

other

pavement

surface.

Petitioners

are

not

aware of any adverse effect of road

salt

inspection of GBSM.

Petitioners’ visual inspection

is based on practical observation, to see if the

load contains anything other than GBSM.

12

---

on the

longevity of EDC.

However, one ofthe

benefits of the trap rock (the small

cubical

rock) contained

in

the

GBSM

is

skid

resistance, which

would

lessen

the

need

for

salting.

Petitioners

do

not

personally

use

road

salt

on

any of their

pavement, because of the

adverse

impact of run-off of salt into the environment.

Would EDC be sold to customers for

installation by the customer?

Questions

arose

whether

petitioners

contemplated

selling

the

EDC

to

customers

(for

example,

townships)

for

installation

by

the

customer.

All

of

petitioners’

contracts

for

the

sale

of

EDC,

to

date,

include

installation

by

petitioners.

Petitioners

have

not

yet

encountered

such

a

situation

where

the

customer

installs

the

EDC.

However,

petitioners

believe

that

there

may

be

potential customers who would

like to

purchase the

paving

product for their own

installation.

This

is particularly possible

in the

case of townships or small

paving

contractors, which

have

experience

in

paving

operations.

If petitioners sold the

EDC

for

installation

by

the

customer,

petitioners

would

provide

detailed

installation

instructions.

Those installation

instructions would

be the

same as the

installation

procedures

used

by petitioners.

(See

petitioners’

Operating

Manual,

introduced

as

hearing

as

Exhibit

2.)

Petitioners would

also

visit the

pavement

installation,

upon the

customer’s request, and provide technical

assistance.

Information on

petitioners’ grinder

Board

staff

asked

for

additional

information

on

the

grinder

used

by

petitioners to

grind

the

GBSM

into

EDC.

As

noted

in

the

equipment

list

in

petitioners’ operating manual

(Exhibit 2,

p. 4), petitioners use a

Peterson

Pacific

L

13

---

2400-B horizontal grinder. Attached as ExhibitN is additional information on the

grinder, including photos.

Board staff also asked

if an air permit is needed for the grinder. As Ms.

Powles testified, and as noted in the petition for adjusted standard, an air permit

may be required.

Petitioners

will obtain any and

all required

air permits, and

have in fact already obtained a storm water discharge permit.

(Tr. 122; Petition,

p.10.)

Petitioners seek an adjusted standard only from the waste regulations,

not from other permit programs.

Language of proposed adiusted standard

There was

discussion

at the hearing

about

potential changes to

the

language of the proposed adjusted standard.

Petitioners have proposed the

following language (see Amended Petition, p. 8):

Jo’Lyn Corporation and Falcon Waste and Recycling are hereby granted

an adjusted standard from the following definitions of 35

III.Adm.Code

807.104:

“facility,” “solid waste,” “solid waste

management,” “waste,”

and

“unit.”

Jo’Lyn Corporation and Falcon Waste and Recycling are further

granted

an

adjusted

standard

from

the

following

definitions

of 35

III.Adm.Code

810.103:

“facility,”

“landfill,” and

“solid waste.”

These

enumerated definitions do not apply

to

operations

conducted

by Jo’Lyn

and/or Falcon

at the facility in

McHenry

County, Illinois, so long as:

1.

Jo’Lyn and

Falcon

continue to

use only clean

granulate bituminous

shingle

material

(“GBSM”) acquired from

a manufacturer of roofing

products or other source of clean

GBSM.

2.

For purposes of this adjusted standard,

GBSM

is defined

as “clean

and consistent post-production material generated at the

end of the

manufacturing of

roofing shingles,

such as tabs

or punchouts,

and

miscolored

or damaged

shingles.

GBSM

excludes

post-consumer

material or shingle tear-offs.”

3.

Jo’Lyn and

Falcon

continue to grind the GBSM

into uniform

pieces,

either course ground or fine ground.

14

---

4.

Jo’Lyn and Falcon use theGBSM chips toform paving surfaces.

5.

Jo’Lyn and Falcon operate the

facility

in

compliance

with

other

provisions of the

Environmental

Protection Act.

First,

there

was

discussion

whether

the

word

“clean”

is

necessary

in

paragraph

one

of

the

language.

(Tr.

at

108-109.)

The

word

“clean”

was

proposed

to

indicate that the

GBSM

must

be

not

contain

any debris or

foreign

materials.

William

Turley,

executive

director

of

the

Construction

Materials

Recycling Association,

stated

at

hearing

that the

word

“clean”,

in

the context of

recycling,

is

used to

denote that

a

material

has no

debris

or contaminants

in

it.

(Tr.

at

173.)

Petitioners

believe

that

“clean”

does

serve

a

purpose

in

the

language

of the

adjusted

standard,

but

would

have

no

objection

if the

Board

chose to strike that word.

Second, there was discussion as to whether the description of the

ground

GBSM

as

either

coarse

ground

or

fine

ground

(paragraph

3

of

the

adjusted

standard)

was

necessary.

(Tr.

at

109-111.)

As

Ms.

Powles

testified,

that

language

was

included

to

track

the

language

of

the

Agency’s

1993

waste

determination.

However,

the

phrase

“coarse

ground

or

fine

ground”

could

be

stricken

from

the

proposed

language

without

changing

the

meaning

of

the

adjusted

standard.12

There

was

also

testimony

and

discussion

as

to

whether

the

installation

specifications

used

by petitioners (thickness,

manner of compaction,

etc.) should

be included

in

the

language of the

adjusted standard.

Ms.

Powles testified

that

there

might

be

circumstances

in

which

petitioners

would

need

to

make

12

As noted by the Agency,

if the phrase remains

in the adjusted standard, the spelling

of

“course” should

be corrected to “coarse”.

15

---

adjustments to the

installation specifications.

Petitioners continue to develop and

refine

their

product,

in

order to

achieve

the

best

and

most

long-lasting

paving

surface.

(Tr.

113-114.)

Mr.

Turley

supported

that

position,

noting

that

the

recycling industry prefers

that states

not regulate product

specifications,

so

that

the

product producer can

find out what works best

and

modify their products to

use

the

material

most

efficiently.

(Tr.

at

172-173.)

This

is

an

important

point:

the

development

of

products

made

from

materials

being

“returned

to

the

economic mainstream”

must

continue to be flexible.

Adding specific installation

specifications,

such

as

how

thick

the

GBSM

is

to

be

applied

or

how

it

is

compacted,

would

very

likely

prohibit

minor

modifications

to

the

process

that

would

improve

the

product.

There

is

no

evidence

that

adding

installation

specifications

to

the

language

of

the

adjusted

standard

would

provide

any

environmental

benefit.

Petitioners ask the Board not to add such language.

CONCLUSION

Petitioners

have

demonstrated

that

GBSM

is

not

a

waste,

and

ask

the

Board

to

make

a

finding that GBSM

is

indeed

not

a waste

when

used to

return

the

material to the economic mainstream.

If the

Board makes

such

a finding, no

further

action

on

the

petition

is

needed.

If,

however,

the

Board

disagrees

and

finds

that

GBSM

is

indeed

a

waste,

petitioners

ask

the

Board

for

an

adjusted

standard

as

set forth

above.

Petitioners’ filings,

and the testimony and

exhibits

introduced

at

hearing,

show

compliance

with

the

requirements

to

obtain

an

adjusted

standard.

There

is

no

environmental

detriment

from

petitioners’

process.

In fact, the use of GBSM to create

EDC

is a

benefit to the environment,

16

---

because

it prevents the unnecessary

Iandfilling

of GBSM.

Petitioners have

demonstrated the simplicity of the process which creates EDC, a beneficial new

paving product. EDC

is of use to petitioners’ customers, to the economy, and

(most importantly)

to

the

environment.

Petitioners

ask that the

Board

find that

the GBSM

is not a waste,

or,

in the

alternative, grant an adjusted standard.

Respectfully submitted,

JO’LYN CORPORATION and

FALCON WASTE AND RECYCLING,

INC.

By~(c~e~

Michael J.

Maher

Elizabeth S. Harvey

Swanson,

Martin

& Bell

One IBM

Plaza,

Suite 3300

330 North Wabash Avenue

Chicago, IL 60611

Telephone: (312) 321-9100

Facsimile:

(312) 321-0990

17

---

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Iii. LEXIS

1616

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Citation:

2004

III.

LEXIS

1616

2004

III.

LEXIS 1616,

*

ALTERNATE

FUELS,

INC.,

Appellee, v.

DIRECTOR OF THE

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY et al., Appellants.

Docket No.

96071

SUPREME

COURT

OF ILLINOIS

2004

III.

LEXIS

1616

October

21,

2004,

Opinion Filed

NOTICE:

*1

THIS

DECISION

IS

NOT

FINAL

UNTIL

EXPIRATION

OF THE

21

DAY

PETITION

FOR

REHEARING

PERIOD.

PRIOR HISTORY:

Alternate

Fuels,

Inc.

v.

Dir.

of the

Ill.

EPA,

337

Ill.

App.

3d

857,

786

N.E .2d103

,2003

II.

A

pp.LE

XI

9,6

~.J

~c~229

~

c.~,

2..Q.0

DISPOSITION:

Judgment of the

appellate

court affirmed.

CASE SUMMARY

PROCEDURAL

POSTURE:

Appellants, the Illinois Environmental

Protection Agency

and

its

director (Agency),

appealed

a

decision by an

appellate court (Illinois) affirming

summary judgment

in favor of appellee company

on

its

declaratory action that its

manufacturing

processes

were not

“wastes’T

under

the Illinois Environmental

Protection

Act,

~....1

.IIL~

p.mp~Sl~t

An

~

~,,,

et seq. (2002). The company challenged summary

judgment

rejecting

its

claim for attorney fees.

OVERVIEW:

The Agency issued

a violation

notice under

§

31(a)(i)

of the Act, 415

Ii

0

~

o,,ri~

31

(,,a

)(1

),,

(1998),

for

the

company’s failure to

secure

a

permit to

burn

alternate fuel at

one

of its

plants.

When the

parties could

not agree

on

whether the

alternate fuel was

“waste”

under the Act,

the

company sought

a

declaration that the

fuel

was

not

waste and for attorney fees under the Illinois Administrative

Procedure Act,

5111.

Comp

Sta t .A nn .1

Q.0

Li

-i

,

based on the

Agency’s allegedly impermissible

rule-making.

The parties

cross-appealed

summary judgment for the

company

on the declaratory

action

and for the

Agency on attorney fees.

The Agency argued

that

the declaratory

action

was not justiciable

and

the

fuel was “discarded

material” under the

Act’s definition

of waste. The court found that

the

case was

ripe

and justiciable

since

an

actual

controversy existed and

hardship would

result if the declaratory action were not

resolved. Since

the

fuel was recycled,

it was not

“discarded”

and

was not “waste”

that

would require

a

permit.

The Agency’s interpretation

of “discarded

material” was

not a

statement of general

applicability,

so

no

rule-making

occurred to trigger the

right to

fees.

OUTCOME:

The court affirmed

both summary judgment

rulings.

CORE TERMS:

waste,

notice,

discarded, fuel, discarded material,

supplier,

plastic, ripeness,

environmental,

alternate, ripe, judicial review, recycling, siting,

pollution control,

processing,

containers,

issuance,

mainstream,

stored,

solid waste,

memorandum, prosecutoril

EXHIBIT

I~L

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://www.

lexis

.

com/researcblretrieve?_m=03 d489ea897c9cf3 e3 a391 875d9aa80c&_fij

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justiciable, violator,

contamination, storage,

ceased,

matter of

law,

contaminant

LexisNexis(R)

Headnotes

+

Show

Headnotes

COUNSEL:

For Illinois Environmental

Protection Agency,

APPELLANT:

Mr. Jerald

S.

Post,

Assistant Attorney General,

Chicago,

IL.

For Alternate

Fuels, Inc.,

APPELLEE:

Ms. Christine Zeman,

Hodge,

Dwyer & Zeman,

Springfield, IL.

~

JUSTICE

FITZGERALD

delivered the

opinion of the court.

JUSTICE

FREEMAN,

dissenting.

CHIEF JUSTICE

McMORROW

and

JUSTICE KILBRIDE join

in this

dissent.

OPINIONBY:

FITZGERALD

OPINION:

JUSTICE

FITZGERALD

delivered the

opinion of the court:

The primary question

in this

appeal

is whether

a

business which

has

been

issued a

violation

notice under section

3 1(a) of the Illinois Environmental

Protection Act (Act)

(415

ILCS

s~q.L

(West 2002)) for failure to

secure

a

permit

as allegedly

required

by the

Act, and

then

ceases operations, may

bring

a

declaratory

action to test the validity of the alleged

violation.

Alternate

Fuels, Inc.

(AFI), filed

such

an action

against the

Director of the Illinois

Environmental

Protection

Agency

(Agency)

and

the

Agency itself. The circuit court of St.

Clair

County determined that the declaratory action

was justiciable,

found that the Act did not

require AFI

to secure

a

permit,

and

rejected

AFI’s claim for attorney fees; the

appellate court

affirmed.

337

III.

App.

3d

857,

786

N.E.2d 1063,

272

III.

Dec.

229.

For the

following

reasons,

we

affirm the

appellate court.

BACKGROUND *2

David

Wieties,

a

former Agency employee, was president

of Resourceful

Environmental

Ideas, Inc.

(REI),

a

company located

in

East

St.

Louis, Illinois, with the

principal objective to

produce

and

sell “alternate fuel.”

REI was the

predecessor company to

AFI.

On June

14,

1994,

Wieties

sent a letter to the

Agency to

determine if AFI’s

product constituted

waste

under the Act and

therefore

required

an Agency

permit. The subject material

consisted of

various types of

plastics generated

by the shredding

of empty agricultural chemical

containers into chips approximately one

inch

in size.

Prior to shredding,

a

company named

Tn-Rinse,

Inc., “triple rinsed” the

containers according

to

United States

Environmental

Protection Agency

and

Department of Agriculture guidelines to

remove residual

agricultural

chemicals.

AFI would

transport the

resulting

chips to Illinois

Power for use

as fuel at

its

Baldwin

Power Station.

On August 31,

1994, the Agency responded that

all

materials

burned

for energy recovery

retained their classification

as waste under the Act and that

a facility

receiving

this

material

would

require

a

permit from

the Agency.

Following this

response,

REI

filed

an

appeal

with the Illinois

*3

Pollution

Control

Board

(Board)

on September 29,

1994. The Agency filed

a

motion

to

dismiss before the Board

arguing that the

letter was not a

“final

determination.”

On

November

9,

1994,

REI

filed

a

motion to

withdraw

the

appeal

and

the

Board

granted

REI’s

motion.

Illinois

Power subsequently requested

a

revision to

its

operating permit to

burn the alternate

fuel

at the

Baldwin

plant. The Agency denied

Illinois

Power’s

application, contending that the

alternate fuel was

a

“waste”

pursuant to

section 3.53 of the Act (415

ILCS

5/3.53 (West

1994)). According

to the

Agency, because the

material

was

a

“waste,”

Illinois

Power

would

be

functioning

as

a

“pollution

control

facility”

under section 3.32

of the Act (415 ILCS

5/3.32

(West 1994)). As

a

“pollution

control facility,”

Illinois

Power faced significant

hurdles to

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2004 Iii. LEXIS 1616

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secure

a

permit.

As

part of the permitting

process,

a pollution control

facility must obtain

local siting

approval.

4~.J.Lc$~/_39~(~i.

(West

1994).

To

obtain

local siting approval, the

county

board or the

governing

body

of the municipality

must approve of the facility

according

to

various

(*4

criteria

listed

in

section

39.2(a)

of the Act (415

ILCS 5/39.2(~(West

1994)).

The governing

body must hold at

least one

public

hearing

within 120

days of the application

(41SJLCS

5/39.2(d)

(West

1994))

and

must

generally take final

action on the application within

180

days

(415

5/39 .2(e)

(West

1994)).

Local siting

approval

expires at the

end

of two

calendar years from

the date

upon

which

it was granted.

415 ILCS

5/39.2(f) (West

1994).

Illinois

Power appealed the Agency’s rejection

of its

permit application

to

the

Board. The

Board’s decision,

published January 23,

1997,

noted

that the subject

materials are

“empty

pesticide

containers which

present landfill

problems due

to their non-degradability”

and that

“the Illinois

EPA has

determined

that the combustion

of the subject

material,

pursuant to

the

above-listed conditions

specified

in

the permit

applications, will not result

in

a violation

of the

Illinois

Pollution Control

Board

rules

and

regulations.”

Illinois Power

Co.

v. Illinois

Environmental Protection Agency,

1997 Ill.

ENV

LEXIS

46,

PCB

Nos.

97-37,

97-36

(January

23,

1997).

*5

The Board

held,

“Here,

Illinois

Power is simply receiving

the alternate fuel

after it

has

been

processed

and

transformed

by Tn-Rinse and

using

it

in

its

boilers.”

Illinois

Power,

PCB

Nos.

97-37,

97-36.

The Board

noted

that the material was

“no

longer”

waste

within the

meaning

of the Act.

Illinois

Power,

PCB

Nos.

97-37,

97-36.

Therefore, Illinois

Power was not

a “pollution

control facility,” as defined by section

3.32(a)

of the Act,

and

therefore

not required

to

obtain local siting

approval.

Illinois Power,

PCB

Nos. 97-37,

97-36.

Soon

after the

Board’s decision,

Edwin

Bakowski,

a

manager of an

Agency

permit section,

prepared

a

memorandum

concerning solid waste ni

permitting requirements

for

alternative

fuel

processing

facilities.

The memorandum

noted that the

Board’s decision

did

not address

the regulatory

status of the

alternate

fuel

prior

to

receipt by Illinois

Power.

The memorandum

raised concerns about

“the

nuisances

and

speculative

accumulation which

may occur

at

alternative fuel

processing

facilities.

The market for

waste

plastics

is not very well established

and

in some

instances these

materials could

even

have

a negative

market value.

The

acceptance of

unninsed *6

plastics

could

also result

in

the manufacture of unacceptable

alternative fuel, onsite

nuisances or contamination.” The memorandum

then

noted that the

“alternative fuel

processing

facilities do not appear to

be

recycling

centers”

and that the

burning

of

alternative fuel was

not recycling.

The

“proposed

options” were

to

“require

permits

for

alternative fuel

processing facilities

as

solid waste treatment

and

transfer station

facilities” or “require

no

Bureau

of Land

permits for facilities that only

process

alternative

fuels

and

address problems with

these facilities through enforcement.”

Footnotes

nl

Under the Act “solid

waste”

means

waste.

415

ILCS

5/3.82 (West 1994).

End

Footnotes

The memorandum

recommended the first option because “the permit

requirements will

provide

a proactive approach

to

eliminate environmental

problems

before

they occur

by

prescribing operating

conditions for the facility. It should

also

be

noted that it

is difficult to

enforce

against permit exempt facilities that

have

nuisance

*7

or speculative

accumulation

problems.”

Also

after the

Board’s decision,

Illinois

Power

and AFI,

formerly

REI, entered into a contract

for the

sale of alternate fuel, which

consisted of the

chips from

the plastic containers with

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1616

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scrap

wood

as

an additional component. AFI also

began contracting

with suppliers.

Included

in

the record

is an

unsigned,

undated form

contract between

AFI and

a generic

supplier.

Under the agreement, the suppliers would

make arrangements

and

bear all

costs of

transporting

nonhazardous

fuel-grade

material,

including wood

and

plastic, to AFI’s facility.

AFI

would

bill the supplier for

receipt of the materials

based

on varying unit

prices for the

differing materials.

Additionally, AFI warranted

that it would

comply with

all

laws

and

regulations

and

“in

the event that

the regulatory conditions

under which any

of the aforesaid

requirements

or permits

change

during the terms of this Agreement,

and

are

beyond the

control

of AFI,

AFI shall

be

released

from

its

obligation

to

receive the volumes of Supplier’s

material

***

and

that

AFI shall rigorously

pursue the necessary modifications to

its

permit

status so that it may continue to

perform

its

obligations

under (*8

this Agreement.”

Four agency representatives

inspected AFI’s facility

on

May

7,

1998,

and

May 22,

1998,

including

Bakowski

and

Kenneth Mensing,

an Agency

manager who

formerly

supervised

Wieties at

the Agency. According to

Bakowski,

the facility

was “not

a

nuisance”

and

Wieties

“appeared to

have

done

his

homework.

He

related a

lot of this to

hazardous

waste

and

what

he thought

U.S.E.P.A.

meant and

things

like that.”

A

May 8,

1998,

inspection

report

described

the facility

as “clean

and

orderly” and

“mainly an area

to

store

plastic materials

before and

after granulation.”

An additional

inspection

on

May 22,

1998,

yielded

similar

results.

In

his deposition,

Mensing

described

AFI’s facility as

a

“big

metal

warehouse building”

with

a

“relatively

small piece of equipment that was

a

granulator or a shredder which

was the only

piece of equipment

there

to

process the

incoming material.” The facility was

a “clean

looking

area”

with various

piles or boxes of

materials segregated

by supplier or plastic type.

Mensing

prepared

a

memorandum of the visit, but

his

observations

“didn’t quite

fit into,

you

know,

a

prepared

type of checklist

that we

had.”

Mensing explained,

“We don’t

really have

a

non-

hazardous

(*9

waste

storage checklist.”

He did

not mention any permitting violation

in

his

memo. According to

Mensing’s

memorandum, Wieties was

“not opposed

to

a ‘recycling

permit’ and

would

like

to work with

the Agency to

develop

and

implement a

new

recycling

permit system.”

Mensing stated, “If the health

and

safety

***

were

a

non-issue, that a

permit would still

be

required

simply

by the verbiage

of the statute, that if

this

is

a facility

that’s storing-you

know,

treating,

storing,

or disposing of it,

then, you

know,

a permit

should

be

obtained”

regardless of whether the facility

poses

any sort

of environmental threat.

Mensing stated that

he did

not see

“anything

operationally that caused

me any

problem.”

On July

8,

1998, the Agency

issued

a violation

notice

to AFI pursuant to

section

31(a)(1)

of

the Act

(415

ILCS

5/31(a)(1)

(West

1998)).

Under

sectioj

Li

of

the

Act,

an

alleged violator

may work with

the Agency to

correct violations

without the involvement of a

prosecuting

authority

such

as the Attorney

General

or

a State’s Attorney.

415

ILCS 5/31

et seq

(West

1998).

Within

180 days

of discovery of an

alleged violation, the Agency shall

*10

serve

a

violation

notice upon

the alleged violator and

a written

response shall

be

required.

415

ILCS

5/31(a)

(West

1998).

This notice of violation

initiates

a

series

of opportunities for the alleged

violator to

meet with

the Agency and

resolve the

issue.

415

ILCS 5/31~(West

1998). If the

parties

do not resolve the issue,

~cticn~Q3). requires that the Agency

provide the alleged

violator with

notice

of

its

intention

to

pursue legal

action

and

an

opportunity to

meet prior to

referral

to

the Attorney General or a

State’s Attorney.

~

(West

1998).

If

disagreements remain, the Attorney

General

or a

State’s Attorney shall serve

a formal

complaint

upon the alleged

violator.

415

ILCS 5/31(c)

(West

1998).

The ~

notice

alleged

a

violation

of section

21(d)(1) of the Act (415ILCS

5/21(d)..(1)

(West

1998))

because “waste

was

stored

and

treated without

a

permit

granted by

the Illinois

EPA.” It

also alleged

a violation

of section

21(e)

of the Act

(415

ILCS

5/21(e)

(West 1998)) because

“waste

was

stored *

11

and

treated

at

AFI’s

facility which

does

not meet the

requirements

of the Act

and

regulations thereunder.” The

notice

stated,

“Due

to

the nature

and seriousness

of the violations cited,

please

be

advised that

resolution of the

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violations

may require the involvement

of

a

prosecutorial

authority for

purposes that

may

include,

among others, the imposition

of statutory

penalties.”

The suggested

resolution

was

the submission

of a permit

application

for

a

waste

storage and

waste treatment operation

to

the Agency’s Bureau

of Land

Permit

Section

by September 30,

1998. To

obtain

a permit, AFI

was

required to

obtain

local

siting

approval

pursuant to

the Act.

4I.1!C....L~L~L2~

(West

1998).

According to

Wieties’

affidavit, due to

the issuance of the violation

notice,

AFI’s primary

investors

withdrew their support, and

its

primary supplier withdrew from

the agreement in

July

1998.

AFI thereafter

halted

its

manufacturing

operations.

The parties

subsequently

met on

September

15,

1998. The Agency

advised

Wieties

it deemed

the alternate fuel

materials

as “waste” under section

3.53

of the Act (415

ILC$

~L3...5.3

(West

1998)). The Act

defines

*12

“waste,”

in

pertinent part,

as follows:

“

‘Waste’

means

any

garbage,

sludge from

a

waste treatment plant, water

supply treatment plant, or air

pollution

control

facility or other discarded

material

***~“

4 15

ILCS 5/3.53

(West

1998). The Agency

interpreted

“discarded

material” to

refer to

any

material “which

is not

being

utilized for

its

original purpose.”

As AFI was

not utilizing

the alternate

fuel

material

in

a manner which

was

consistent

with

its

original

use

by the supplier,

it was the Agency’s position that

such

material

had

been “discarded”

and

was, therefore,

a

“waste.” Wieties

and

the Agency were

not able to

resolve the matter.

AFI

filed

a two-count complaint

on

November 2,

1998,

naming

as defendants

Mary A.

Gade,

Director

of the Agency,

and

the Agency.

n2

In count I,

plaintiff requested

a declaration that

the materials used

by AFI

in

its

manufacturing

process were

not “wastes”

because the

materials were

not discarded.

Count II alleged

that AFI

was statutorily entitled to

recoup

all

reasonable

costs,

including

attorney fees,

because the Agency’s

interpretation

of “discarded

material” constituted

unauthorized

rulemaking under the Illinois Administrative

*13

Procedure Act

(5 ILCS100/1-letseq.

(West

1998)).

The complaint also

alleged

that an

actual controversy

existed

and

that the declaratory judgment statute

vested

the court with

the

power to

hear the dispute.

735

ILCS 5/2-701

(West

1998).

The Agency

moved

to

dismiss, arguing that

there

was

no

actual

controversy ripe

for determination

because AFI

failed

to

exhaust all

administrative

remedies.

The circuit court denied

the motion

to

dismiss.

The Agency then

filed

an

answer,

along

with affirmative defenses

in

which

it

denied

that the

trial court had jurisdiction to

hear the claim and

that the complaint failed to

state

a

claim

upon

which

relief could

be

granted.

Footnotes

n2 Plaintiff also

named St.

Clam

County as a defendant. Summary judgment was entered

against St.

Clair County, but it

is not part of

this appeal.

End

Footnotes

AFI

filed

a motion

for summary judgment against the

Director and

the Agency

on

count I.

The trial court ruled that there were

no

genuine

issues of

*14

material fact and

granted

AFI’s

motion,

finding

that the materials were

not “wastes”

because they were

not discarded.

Thereafter, the

parties filed

cross-motions for summary judgment on

count II.

The trial

court

granted

the Agency’s motion

as to

count II

and

denied

plaintiff’s motion.

Both parties

appealed,

and

the appellate

court affirmed

the rulings

of the trial

court.

~

We granted the Agency’s petition

for leave to

appeal

on

count I.

177

Ill.

2d R~3

15. In

its

brief,

AFI requested cross-relief,

requesting

that

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we

reverse

the appellate

court

and

the trial court on

count II.

155

III.

2d

Rs.

315(g),

318(a).

Because this appeal from

a summary judgment

ruling

solely presents

issues of

law,

our

review

is

de

novo. First Bank of America,

Ro

ANALYSIS

The Agency raises

two

issues

on

appeal:

(1)

this

case was not justiciable

because the

declaratory judgment

action was

not

ripe

for

review until

the Agency

had

concluded

its

investigatory process,

and

(2)

the Agency

properly defined

the materials processed

by

AFI as

“discarded

materials” which constituted

“waste, *

15

“thus

requiring

AFI to

secure a

permit before

producing the alternate fuel.

In

its

cross- appeal,

AFI contends that the

Agency’s interpretation

of “waste”

and

its

subsequent

application

of the Act constituted

impermissible

rulemaking, thus making the state

liable for AFI’s reasonable

costs

in

the

instant action,

including

attorney

fees.

Justiciability

The Agency argues that

AFI’s

claim for declaratory judgment

is not justiciable.

The Agency

specifically

contends that

because the Agency

had

not yet finished

its

investigative

process

under section

31

of the Act

(415 ILCS

5/31

(West 2002))

the matter was not

ripe

for

review.

AFI responds that the

matter is ripe for

review

because the Agency

had

completed

its

investigation,

while AFI

was

forced

to

halt its

operations

and

was left with

no other avenue

to

resolve the dispute.

We agree with

AFI.

“‘Concepts

of justiciability

have been

developed

to

identify

appropriate occasions

for judicial

action.

***

The central

concepts

often

are elaborated

into

more

specific categories

of

justiciability-advisory

opinions, feigned

and

collusive

cases,

standing, ripeness, mootness,

political

questions, and

administrative

questions.

*16

‘

“

Black’s

Law

Dictionary

882

(8th

ed.

2004),

quoting

13

C.

Wright,

Federal

Practice & Procedure

§

3529,

at

278-79

(2d

ed.

1984).

Section

2-701 of

the Code of Civil

Procedure

(735 ILCS

5/2-701 (West

2002))

sets

forth

the general

requirements

of a justiciable declaratory action

under Illinois law.

This

section

provides that a court

“may,

in

cases

of actual

controversy,

making binding declarations of

rights,

having the force of final judgments, whether or not any

consequential

relief

is or

could

be

claimed, including

the determination,

at

the instance of anyone

interested

in

the controversy,

of

the construction

of any statute

~

or other

governmental

regulation

***

and

a

declaration of the

rights of the

parties

interested.

***

The court shall refuse to

enter a declaratory judgment or order,

if

it

appears that the judgment or order,

would

not terminate

the controversy

or

some part thereof,

giving

rise to

the proceeding.”

735

ILCS 5/2-701(a)

(West

2002).

The declaratory judgment statute

must

be

liberally construed

and should

not

be

restricted

by

unduly technical interpretations. L,e~c/,..jj,~I!L.2~

~74~

*17

This remedy

is used

to

afford security and

relief to

the parties

so

as to

avoid potential

litigation.

See,

e.g.,

IVetsch1

166

III

2d

at

174.

“Our courts

have

recognized that

‘the

mere existence

of

a

claim,

assertion

or challenge to

plaintiff’s

legal interests,

***

which

casts

doubt, insecurity,

and

uncertainty

upon

plaintiff’s rights

or status,

damages

plaintiff’s pecuniary or material

interests and

establishes

a

condition

of justiciability.’

“

Netsch1

166 Ill.

2d

at

175,

quoting

Robertsv.

B

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Iii. LEXIS 1616

Page 7 of 18

Here,

in the context of

a

challenge

to

an administrative action,

we

specifically

consider

ripeness,

a component of justiciability.

The ripeness doctrine

is designed

“‘“to

prevent the

courts, through

avoidance of

premature adjudication,

from

entangling themselves

in arbitrary

disagreements over administrative

policies,

and

also

to

protect the agencies

from judicial

interference until

an administrative

decision

has

been formalized

and

its effects

felt

in

a

concrete

way

by the’ challenging

parties.”

‘

“

National Marine, Inc.

v.

Illinois Environmental

~

*

18

quoting

~

~cLv~i~i.Qr,

~

quoting

Abbott Laborator/es

v.

Gardner,

387

LLS.

136, 148:.~9,

681,

691,

87

5.

Ct.

1507,

1515

(1967)

see

also

National Park Hospitality Ass’n

v.

Department of the Interlo

2030(2003).

It

is well settled that”’the

problem

is best seen

in

a

twofold

aspect, requiring

us to

evaluate

both

the fitness of the

issues for judicial

decision and

the

hardship

to the

parties

of withholding

court consideration.’

“

National Marine,

159

Ill.

2d

at 389,

quoting

Abbott Laboratories,

387

U.S.

at

149,

18

L.

Ed.

2d

at 691,

87S.

Ct.

at

1515

see also

As to

the first factor, the

issue presented is fit for

a judicial decision at this time.

In

contention

is the correct interpretation

of “discarded

material”

in section 3.535 of the

Act

~

(West 2002)).

Both sides have approached

this

matter in terms

*19

of

statutory construction,

and

there

is no

dispute over the facts.

Wieties’ discussions with the

Agency began

in

1994 and

involved

a

number of Agency employees

over time. The

record

clearly demonstrates that the Agency

had

finished

its

investigation

and

had

decided

AFI

stored

and

treated waste,

requiring

local siting approval

and

a

waste permit,

a

stance that

has not changed.

The Agency performed

two

inspections

of the facility in

May 1998.

Agency

personnel continued their internal discussions

regarding

AFI and

the

waste issue,

which

then

culminated

in

a violation

notice.

After the Agency

issued the violation

notice,

Wieties

responded

to and

met with

the Agency

in

an

unsuccessful

attempt at

resolving

the stalemate

concerning

the definition

of waste.

As

applied specifically

to AFI,

the Agency

has little

incentive

to

change

its

definition

of “waste”

as

AFI has

closed

shop,

obviating

the

need for a

permit and

potential

prosecution.

Thus,

there

is

no

prospect for further factual

development

to

aid judicial

resolution.

As to

the

second factor,

the

hardship

upon

AFI

is more than

sufficient

to

render judicial

review

appropriate at

this stage. The Agency’s interpretation

put AFI into

a dilemma:

*20

secure an

allegedly

unnecessary

permit with the

requisite

local siting approval,

take

a

potentially

more

costly

alternative of risking

serious

penalties

by continuing

and

waiting

for

the ax of Agency prosecution to fall,

or

discontinue

operations.

When AFI

chose

the third

option, the

Agency had

no incentive

to

refer the matter for prosecution

because there

was

no

longer

a continuing violation.

Indeed,

the Agency

has

given

no

indication

that it wished

to

issue

a

secticn31(b)

notice,

much

less

prosecute the matter.

We also

note that

AFI

has

not

sought

relief

in this action

to

prevent the

Agency from

doing so. Thus,

the

practical effect

upon

AFI

of failing to allow judicial review at this time would

be

to foreclose

all

access to the

courts.

The parties do

not dispute that AFI

is

a viable business entity which

was directly

affected

by Agency action.

The Agency’s decision affected AFI

in

a

concrete way;

the

notice

of violation

caused AFI

to

lose

financing,

lose

its

suppliers,

and halt operations,

thereby

ending

AFI’s agreement with Illinois

Power.

Thus,

AFI

has already felt a

direct and

palpable

injury and

has

an

immediate financial stake

in the

resolution of the instant

action.

We find

*21

the

primary authority

proffered

by the

Agency,

f~ii~n,,LJ1,dne,J/c,y

I

9

(1994),

distinguishable.

In

National Marine,

the Agency

issued

a

notice

informing the plaintiff

that

it could

be potentially

liable for

a “release

or a substantial threat of

a

release of

a

hazardous substance on the

property”

pursuant to

section

4(q)

of the Act.

National Marine,

159

I!J.

2d

at

383;

III.

Rev. Stat.

1991,

ch.

111

1/2,

par.

1004(q). This notice

was

based

on

the Agency

finding

“buried drums filled with

unknown

materials,

buried

tires

and

wood which

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had

apparently been

used

as fill

material,

black-stained

soil

near an

underground

storage

tank riser

***

and

an

abandoned

well house.”

National Marine,

159

III.

2d

at

384.

Plaintiff

sought a declaration that section

4(q)

of the Act was

unconstitutional,

an injunction enjoining

the Agency

from

enforcement arising

from

the section 4(q)

notice or relying

on the factual

findings found

in

the notice,

and

the

issuance of

a

writ of

certiorari

to

review the Agency’s

record

and

reverse

and

quash the section 4(q)

notice.

National Marine,

159

III.

2d at

384

*22

This

court noted that

“the complaint,

in

essence,

sought to obtain judicial

review of the

Agency’s issuance

of the 4(q)

notice

prior to

the Agency’s initiation

of cost-

recovery/enforcement

proceedings

before

the Pollution

Control

Board

(Board)

or the circuit

court.”

National Marine1

159

III.

2d

at

385.

We

found, “at this preliminary stage

in

the

administrative

process, it

is not clear

whether the Agency will even

initiate

a

cost-

recovery/enforcement

proceeding against plaintiff before

one

of these

bodies. Clearly, under

the circumstances,

plaintiff’s complaint

is premature.”

National Marine,

159 Ill.

2d

at

390-91.

We

reasoned:

“To

allow

preenforcement judicial review of the Agency’s

mere

issuance

of the 4

(q)

notice would

undermine the

statutory scheme

of the Act.

Affording

plaintiff

judicial review at this preliminary stage

in

the administrative

process

could

potentially open the

door and

enable

parties

‘to litigate separately every alleged

error committed

by an

agency

in the course

of the administrative

proceedings.’ Citations.

In

addition,

preenforcement judicial review of the issuance

of a 4(q)

notice

would

substantially thwart the legislative

*23

purpose of

providing expedient

containment of environmental pollution.

Allowing this type of judicial

review prior

to the final

stage

of the administrative

process would

substantially

delay the

quick,

effective

response action

called

for

by the Act. The clean-up

process

could

be

delayed

by months or even years

at

great cost to the environment

and

public

health

and

safety.

Such

a

result

will not

be

countenanced

by this court.”

N

The concerns

of

National Marine

are not evident

in the

record.

The instant case does

not

“substantially delay the quick,

effective

response

called

for

by the Act.” The record

contains

no allegations

of any

environmental contamination.

The salient hazard to

the environment

caused

by the

plastics’ exists only

in

the actual

burning

of the plastics,

for which Illinois

Power

has

received

a permit, and

the nonbiodegradable

character of the agricultural

containers,

which AFI is potentially

alleviating

by

processing

the containers

into alternate fuel.

Furthermore,

the accumulation of materials was only

“speculative.”

After the Agency

issued

the

notice of violations,

AFI discontinued

its

operations

and

all

*24

further manufacturing

of the alternate fuel

ceased.

This is

a

case

where,

as

Mensing stated,

the environmental

hazard

is

a nonissue.

Instead it involves

only

the “verbiage”

of the statute. Indeed,

by

issuing

a violation

notice

which

led

to

the subsequent

halting

of operations,

the Agency has

been successful

in

abating

any

potential

nuisance. It

is difficult to

conceive

of

a

benefit

to the

environment of a continued

investigation

of

a facility

where

inspections

revealed

no

danger to

the environment and where

all

operations

had

ceased.

Thus,

there

was

no thwarting of the

Act’s

purpose

to

provide

expedient

containment of environmental risks.

Additionally,

the present

relief sought

is

not similar to that sought

in

National Marine.

AFI did

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2004 Iii. LEXIS 1616

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not seek the

issuance

of

a

writ

of

certiorari

to

review the Agency’s

record

or to

quash the

section

31(a)

notice.

AFI sought

nothing

precluding the Agency

from

continuing

its

investigation,

issuing

a

notice

under section~31(b),or referring the matter to

a prosecutorial

authority

under sectIom3i(c).

Nevertheless,

nothing

in

the record

demonstrates that the

Agency sought

to further pursue

its

investigation of AFI.

Additionally, nothing

prevented

*25

the Agency from

continuing

its

investigation under the Act which

could

have

culminated

in

a counterclaim

in

the

present action.

AFI

alleges that the only error the

Agency committed

was

in

its

interpretation

of the Act.

Thus,

the

present

action

is not

“preenforcement,”

as there

is

no

allegation that AFI sought to

evade Agency action,

nor

is

there any

indication that

the Agency

wished

to

refer a matter concerning

a discontinued

operation to

a prosecutorial authority.

Further,

unlike

in

National Marine,

the Agency’s action

here

constituted

more than

a merely

preliminary step prior to

an

eventual

final Agency

action.

As

stated,

once

AFI discontinued

its

operations, there was

no

further incentive for the Agency to

refer the matter for enforcement

over

a dispute concerning

only

statutory

interpretation.

Unlike

in

National Marine,

there

was

not any alleged

environmental contamination.

Conceivably,

there

being

no continuing

production,

AFI would

have

to

wait

until

the Agency

filed

a complaint based

upon

a

facility

that was

no

longer

in

operation.

As

Mensing stated,

it

was “speculation” that the Agency

would

have

filed

a

complaint. As

stated

by the Agency

in

its

brief,

AFI’s

declaratory

*26

judgment action

was

filed “at a time

when

it

was

unclear whether the Agency, through

a

State’s Attorney

or the Attorney General,

would ever initiate

an enforcement proceeding.”

Furthermore,

Mensing stated

in

his deposition that “if he

had just stopped

doing

it, Idon’t

know

if we would

have

pursued any further enforcement.”

It is not necessary for

AFT to

expose itself to further liability

by continuing

the disputed

operations for the Agency

to

pursue administrative remedies

entirely in

its

control

until

the Agency

had

deemed

it “final.”

Under the circumstances of this

case,

where there are

no

allegations of environmental hazard

presented

in

the

record,

where the Agency

had

essentially obtained

compliance with

the Act,

where the declaratory action

did

not additionally seek to

enjoin

the Agency

from

pursuing

further action,

where AFT

had

no further administrative

recourse but to

wait for prosecution

on

its

halted operations,

and

where the resolution

of the

case

depends

entirely on

a

statutory

interpretation,

the concerns addressed

in

National Marine

are

not present.

We

therefore find

that

the record

reveals

an

actual controversy

resting

on

the

parties’ conflicting

interpretations *

27

of

the Act

which affected plaintiff’s pecuniary

interest. This matter is

ripe for

review and

thus justiciable.

Definition

of “Discarded

Material”

The Agency

contends

on

appeal that AFI

was

receiving

and

processing

“discarded

material”

within the plain

meaning

of the definition

of “waste” within section

3.535

of the Act

(415

ILCS

513. 535

(West 2002)),

thus requiring AFI

to

secure

a

permit. The Agency further argues

that the term

“discarded”

should

be

construed from

the perspective

of the supplier,

such that

a material

is considered discarded

if it

is used

for purpose other than that originally intended

by the generator

of the material.

AFI responds that

when the

phrase “discarded

material”

is

read

in conjunction with

section

3.380

of the Act

(415 ILCS

5/3.380

(West

2002)),

it is

apparent that the materials

it

receives are

not “discarded”

and,

therefore,

are

not “waste”

requiring

a permit. The parties

agree the Act

does

not define the term

“discarded.”

n3

Footnotes

n3

We

note

revisions

to the Illinois Administrative

Code (35 III.

Adm.

Code

721

(2003)),

pertaining solely to

identification

and

listing of

hazardous

waste.

27

III.

Reg.

12760

(adopted

June

5,

2003).

Under the regulations,

a

solid waste

is defined

as discarded

material.

27

III.

Reg.

12769

(adopted June

5,

2003).

Discarded

material

is further defined as

a

solid

waste

if

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“it is abandoned

in

one

of the following

ways ~

it

is accumulated, stored, or treated

(but

not recycled)

before

or

in

lieu of being

abandoned

by

being

disposed

of,

burned, or

incinerated.”

27

III.

Reg.

12770

(adopted

June

5,

2003).

Other definitions

of solid waste

include:

“a material

is considered

a

solid

waste if it is recycled-or

accumulated, stored, or

treated before

recycling

***

if one

of the following

occurs with

regard to the

material

***

2)

the

material

is

burned

for energy recovery.”

27

Ill.

Reg.

12770-71

(adopted June

5,

2003).

The

present material

does

not constitute

hazardous waste, nor do the parties

argue that this

provision

could apply to

this matter.

EndFootnotes

*28

The

fundamental

principle of statutory

construction is to

ascertain

and

give effect to

the

legislature’s

intent.

Michigan Avenue National Bank

v.

County of Cook,

191

III.

2d

493, 503-

04, 732

N.E.2d 528,

247

III.

Dec.

473

(2000).

The language

of the statute

is the most

reliable indicator of the legislature’s

objectives

in

enacting

a

particular law.

Hawe~j~,~4uhr

B

583,

No.

96153

(June

4,

2004).

We

give statutory

language

its

plain

and

ordinary

meaning,

and,

where the

language

is clear and

unambiguous,

we

must apply the statute

without

resort

to further aids

of statutory construction.

We

must

not depart from

the

plain

language of the Act

by reading

into

it exceptions,

limitations,

or conditions that conflict with the express

legislative intent.

Hawes v.Luhr

Brothers,

Inc.,

2004 Ill.

LEXIS

979 at *18.

Moreover,

words

and

phrases

should

not

be

construed

in

isolation, but must

be interpreted

in

light of other

relevant provisions

of the

statute.

Section

21

of the Act lists

prohibited

acts, stating,

in relevant part,

“no

person shall:

*29

~

(d) Conduct any waste-storage, waste-

treatment,

or waste-disposal

operation:

(1)

without a permit granted by the Agency

~

~

(e)

Dispose, treat,

store or abandon

any

waste,

or transport

any

waste

into

this State

for disposal,

treatment,

storage

or

abandonment,

except at

a site or facility

which

meets the

requirements

of this Act and

of

regulations

and

standards thereunder.”

415

ILCS 5/21

(West

2002).

The Agency issued

a violation

notice

alleging

a

violation of

section

21(d)(1)

because “waste

was stored

and

treated without a permit

granted

by the Illinois

EPA.” It also

alleged

a

violation

of ~~tion

21(e)

of the Act

because

“waste was

stored

and

treated

at

AFT’s

facility

which does

not meet the requirements

of the Act and

regulations thereunder.”

The Act defines “waste”

as:

“any

garbage,

sludge from

a

waste treatment plant, water supply treatment

plant,

or air

pollution control

facility or other

discarded material,

including solid,

liquid, semi-solid,

or contained

gaseous material resulting

from

industrial,

commercial,

mining

and

agricultural operations,

and

from

community

activities

***•“

(Emphasis added.) 415

ILCS 513.535

*30

(West

2002).

In

this section,

the Act uses the term

“discarded”

only

as

a modifier to the term

“material.”

The Act does

not elaborate

as to

who

or what subject exactly performed the discard

action.

Rather, the focus

remains

on the object:

“material.”

Given that the Act does

not specify the

subject, the Agency’s proposition-that the modifier “discarded”

should

be

construed from

the

perspective of the supplier-is

not unequivocally erroneous.

However,

a

look

at

another

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pertinent portion

of the Act

demonstrates that the Act

retains

its

focus

on the “material” itself

as

it

passes

between

entities.

The Act

uses the term

“discarded”

in

section

3.380 of the Act (415

ILCS 5/3.380

(West

2002)), which

reads as follows:

“‘Recycling,

reclamation

or reuse’

means

a

method,

technique, or

process

designed to

remove

any

contaminant from

waste

so

as to

render such

waste

reusable,

or

any

process

by which

materials that

would

otherwise be

disposed

of

or discarded

are

collected, separated or processed

and

returned to the economic

mainstream

in

the form

of

raw

materials or

products.”

(Emphasis added.)

415

ILCS

5/3.380

(West

2002).

*31

Under this

phrasing

the legislature

has categorized

items that

may

be

recycled,

reclaimed,

or

reused

into two

main

categories:

(1)

“waste” from

which

contaminants

may

be

removed

and

(2) “materials.”

4L5

ILCS

EL3.3 80

(West 2002).

“Materials” are further subdivided

into those

that remain “discarded”

and

those “materials that

would

otherwise

be

disposed

of or

discarded

which

are collected,

separated or processed

and

returned

to the economic

mainstream

in

the form

of

raw

materials or products.” ~.I

~

(West 2002).

While

the

legislature has

not defined

“discarded

materials,”

the

legislature has

mentioned

what

it

is

not:

“materials that would

otherwise

be

disposed

of or discarded

are

***

returned to

the

economic

mainstream

in

the form

of raw

materials and

products.” Thus,

materials are

“discarded”

unless they are returned to the economic mainstream.

Here,

AFT was

not removing

contaminants from

the triple-rinsed

containers

or from

wood.

The contaminants

had

been removed

by the triple-rinsing

process

before

they arrived

at

AFT’s

facility and

there

is

no

indication

in

the

record

of

proposed

removal of

contaminants

*32

from

wood.

Therefore, the solid at

issue

is

a “material.”

We

next

consider whether this

material

remained

discarded

or if it

was

“collected

separated or

processed

and

returned to

the economic

mainstream

in

the form

of raw

materials or

products.” The parties

do not dispute that AFI would

process

the plastic containers and

return

the

materials as

a “product”

into the economic

mainstream,

as demonstrated by the contract

with

Illinois

Power.

The materials are,

therefore,

not discarded.

The comparison

of

AFT’s

facility to

the statutory

definitions for

“recycling

center”

and

“pollution control

facility”

reinforces this

interpretation.

Under the Act,

“‘recycling

center’

means

a

site or facility that accepts

only segregated,

nonhazardous,

nonspecial,

homogenous,

nonputrescible

materials,

such

as

dry paper,

glass,

cans or plastics, for

subsequent use

in the secondary

materials market.” 415

ILCS

5/3.375

(West

2002).

AFI

accepted nonputrescible

materials such

as

plastic

for subsequent use

in

the secondary

materials

market.

By contrast,

a “pollution

control

facility”

is “any waste

storage site,

sanitary

landfill, waste

disposal

site,

waste transfer station, waste

*33

treatment facility, or waste

incinerator.

This

includes sewers,

sewage treatment plants,

and

any other facilities

owned or operated

by

sanitary

districts organized

under the Metropolitan

Water

Reclamation District Act.” 415 ILCS

5/3.330

(West

2002).

The aim

of

AFT

was not to store,

landfill,

dispose,

transfer, treat,

or

incinerate waste.

Rather,

it would

be

processing

the materials for

subsequent

use

in

the

marketplace.

Thus,

AFI’s facility

retained

more

characteristics

of a “recycling

center” than

a

“pollution control facility.”

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We

therefore

reject the Agency’s contention that “discarded”

is defined

solely from

the

viewpoint of the supplier

in

that

a

material

is putatively “discarded”

as “any

material which

is

not

being

utilized for

its

intended

purpose”

of the generator.

There

is nothing

in

the

statute

which would

dictate

this definition.

Rather, the Act

contemplates that

materials that

may

otherwise

be

discarded

by the supplier may

be

diverted from

becoming

waste and

returned

to the economic

mainstream.

Since the materials are

not “discarded”

and

therefore

not “waste,”

we

find

that AFI

was not

a

“pollution control facility” requiring

a

permit

which

*34

would further require

local siting

approval.

Attorney Fees

In

its

cross-appeal,

AFI contends that

the Agency’s

interpretation of “waste” constituted

impermissible

rulemaking, thus

making

the state liable for

AFT’s attorney

fees in the instant

action.

The Agency responds that

it was merely

interpreting

the statute as

it

applied to this

particular case, rather

than

engaging

in

any

formal

rulemaking.

We

agree with

the Agency.

Section

10-55(c)

of the Illinois Administrative

Procedure Act

(5

ILCS

100/10-55(c)

(West

2002))

provides,

in

pertinent part,

as follows:

“In

any case

in

which

a party

has

any

administrative

rule invalidated

by

a court

for any

reason,

including

but not limited

to

the agency’s

exceeding

its

statutory

authority or the agency’s

failure to follow statutory

procedures

in

the adoption

of

the rule,

the court shall award the party bringing the action

the reasonable

expenses

of the litigation,

including

reasonable

attorney’s fees.”

.~Lu,cE..~.QL:.Q~~Lc).

(West 2002).

The Administrative

Procedure

Act further includes

the

following definition

of

a “rule”:

“‘Rule’

means

each

agency statement of general

*35

applicability that

implements, applies,

interprets, or prescribes

law or policy,

but does

not include

(I) statements concerning

only the internal

management of an

agency and

not

affecting

private

rights or procedures available

to

persons or entities outside the

agency,

(ii)

informal advisory rulings issued

under Section

5-150,

(iii) intra-

agency

memoranda,

(iv) the

prescription

of standardized forms,

or (v)

documents prepared

or filed

or actions

taken

by the Legislative

Reference

Bureau

under Section

5.04 of the Legislative Reference

Bureau Act.

5

ILCS 100/1-70

(West 2002).

AFI

has

failed to demonstrate that the Agency’s interpretation

of “discarded

material”

as “any

material which

is not

being

utilized for

its

intended

purpose”

is “a statement of general

applicability.” AFI cites intra-agency

memoranda,

and

remarks

taken from

the depositions of

Ed

Bakowski

and

Kenneth

Mensing that this interpretation

was

to

provide

“guidance” to

the

regulated

community.

Such statements do not affect private

rights or procedures

available to

specific entities

outside the Agency. 5ILCS100J1-70(IJ

(West 2002).

AFT points

only to

the

deposition

*36

testimony of Kenneth

Mensing

which states that

a violation

notice

was

issued

to

one

business other than AFI,

using the same interpretation

of

“discarded

material.”

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2004 Iii. LEXIS 1616

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Mensing stated

that this

business elected

to

secure

a permit rather than

challenge the

violation

notice. However,

further details of the Agency’s application

of

this interpretation to

this business are

not available in

the

record.

Given

the paucity of information

pertaining to

the second

business, as well

as the

lack

of any

information

in

the

record

concerning

Agency

action

pertaining

to

the

business

community at

large,

we

find

the record

is

devoid of any

indication

that the Agency’s interpretation

of “discarded

material” was

a statement of general

app1 ica b ii ity.

Additionally,

nowhere

in

the record

has

AFT demonstrated

that the Agency

exceeded

its

statutory

authority

in

merely

interpreting

the Act

and

issuing

a notice

of violations

premised

upon that

interpretation, nor could

it.

The Agency here

was interpreting

a statutory

term,

“discarded

material,”

based on

a particular set

of facts,

and it was entitled to

do

so.

We

further note that this

interpretation

was not manifestly erroneous,

as the

Board

in

the

Illinois

Power

*37

decision

(illinois Power Co.

v.

Illinois Environmental Protection Agency,

PCB

Nos.

97-37,

97-36

(January 23,

1997))

noted that

the material

was

“no

longer”

waste

by the

time

it

arrived

at the Baldwin

Power

Plant.

While

the Agency’s interpretation

of the Act was

ultimately

incorrect,

no statutory

provision

prevents the Agency from

making

a mere

interpretation.

CONCLUSION

We

find that plaintiff’s claim was justiciable,

that AFI

was not processing ~‘waste”

in

the form

of “discarded

material,”

and

that AFI is not entitled to attorney

fees

because the Agency’s

interpretation

was not

one

of “general

application.” Accordingly,

we

affirm

the appellate

court’s judgment affirming

the trial

court’s granting

of

summary judgment for

plaintiff on

count

I

and

for defendant on

count II.

Appellate

court judgment affirmed.

DISSENTBY:

FREEMAN

DISSENT:

JUSTICE

FREEMAN, dissenting:

I

express

no opinion

on the majority’s

resolution

of the underlying

issues

of this

case,

because I

do not agree with

the threshold

conclusion that

we should

be considering the

case

at all.

Although

the majority’s

reasoning

to

the contrary

is

not without some sympathetic

appeal,

I

do not believe that the

instant action

is

ripe.

*38

The facts which

I

consider to

be

pertinent to the analysis

may

be

stated succinctly.

(1) AFT

started

up

its

operation.

(2) The Illinois

Environmental Protection Agency

(Agency)

issued

AFI

a “violation

notice,”

under section

31(a)

of the Act (4~5.JLCS5/31(a)(West

1994)),

in

which

the Agency

alleged that

AFT was treating

and

storing

“waste” without

a

permit. (3) AFI

voluntarily

ceased

its operations.

(4) AFI filed the instant declaratory judgment action

in

the

circuit court,

arguing

that the

materials

in

question

were not waste

and

requesting

that the

circuit court enter an

order stating

that

“the allegation

stated

in

the above-described violation

notice

issued

to

AFT

are

sic

contrary to

the law.”

As the majority

acknowledges,

a

section

31(a)

violation

notice

carries

no

legal

repercussions.

For the Agency

to

have attempted

to

hold

AFI

liable

for

its

alleged violation of

law, the

Agency would

have

had

to

issue

AFT a notice

of its

intent

to

pursue

legal

action

under section

31(b)

(415 ILCS5/31(b)

(West

1994))

and

thereafter referred

the

case

to

the Attorney

General

or State’s Attorney under section

31(c) (415

ILCS 5/31(c)

*39

(West

1994)).

The

Attorney General

or State’s Attorney would

have

had

to file

a formal complaint

against AFI.

415

ILCS 5/31(c)

(West

1994).

There

would

have followed

a

proceeding

before

the Pollution

Control Board. Only

if

the

Board

ruled against AFT

would

any

legal

consequences

have

attached.

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The

section

3 1(a)

notice

is merely the first step

in

this

process. It is designed to

put the

recipient

on

notice that there

may

be

a problem,

nothing

more. It is not

a final

determination

of culpability-indeed,

it is not even

a formal

complaint. And

as this court has

previously

stated,

“an

agency’s

preliminary,

investigative action

is not a final

agency decision

ripe

for

judicial

review.

Citation.

Notifying

a party that

it

is subject

to

an investigation which may

potentially

lead

to the institution

of an

action

against that

party does

not create

a claim

capable

of judicial resolution.”

NationaL

Marine,

Inc.

v.

Illinois En vironm

ta/P

J

~

JLL.Pec~_~L(I9.~.4)..

Thus it

would

seem

that

AFT’s complaint

in

this

case

ought to

have

been dismissed.

But the

majority

distinguishes

National Marine,

thus affirming

*40

the ripeness doctrine

in theory, but

determining that it should

not forestall AFI’s suit

in

the instant case.

I

find

National Marine

indistinguishable with

regard

to the

relevant facts. In

both

National

Marine

and

the

instant case,

the Agency

issued

a preliminary

notice

of potential

liability for

an

environmental

violation.

In

each

case, the party

to

whom

the notice was

issued

brought

suit

in

the circuit court.

Both alleged violators claimed

that they were

harmed by the mere

issuance

of the

preliminary notices.

But

in

National Marine,

as

here,

the notice

was

not a final

adjudication,

and

moreover

it was “not clear whether the Agency will

even

initiate a

cost-

recovery/enforcement proceeding

against plaintiff.” ~

Therefore, this court concluded that

the dispute was not yet

ripe

because, I

repeat,

“an

agency’s

preliminary,

investigative

action

is

not a final

agency

decision

ripe

for judicial

review.

Citation.

Notifying

a party that

it

is subject to

an investigation which

may

potentially

lead

to

the

institution

of an

action

against that party does not

create a claim

capable

of judicial resolution.”

National Marine,159

IlL

2da t.~.....L

*41

The

majority

raises

several

points

in

support of

its

conclusion that

National Marine

does not

guide our

result

in

the instant

case.

First, the majority

contends that the

“concerns”

mentioned

in

National Marine

are

not implicated

in

the

present case,

because

“the instant

case does

not ‘substantially delay the quick,

effective

response

called

for

by the Act.’

“

Slip

op. at

11. This is because, according

to

the

majority, there

are

“no

allegations of

any

environmental contamination”

in

the record.

Here the

majority

comes perilously close

to

assuming

what AFT

is trying

to

prove,

i.e.,

that AFT committed no environmental

contamination. It

is clear,

however, that

the section,3 1(a)

notice

charged

AFT with,

inter alia,

storing

“waste” without a permit.

The fact that AFI voluntarily ceased

its

shredding

operations

does

not permit us to conclude

as

a matter of

law that the storage

of waste

has

wholly

ceased.

n4 Thus,

this allegation

of environmental

contamination

might

indeed

be

ongoing notwithstanding

AFI’s voluntary cessation of operations. The majority’s speculation

that the “salient hazard to

the environment”

consisted

“only”

of “the actual

burning

of the

plastics”

(slip

*42

op. at

11)

ignores the fact that the Agency charged

AFT with

conduct

unrelated

to the

burning of the

plastics. Indeed, the

majority appears

to

be

telling the

Agency,

as

a matter of

law, what

is

and

is not

a

“salient hazard

to the environment.”

In

my

view, this

is both extraordinary and

unwarranted.

Footnotes

n4 The

majority cannot justify such

a conclusion

by

citing

to

its

determination on the merits

that the matter

in