G. Tanner Girard, Acting Chairman
Board Members:
Thomas E. Johnson, Nicholas J. Melas, Andrea S. Moore
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
(312) 814-3620
(312) 814-6032 TDD
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
(217) 524-8500
Web Site: http://www.ipcb.state.il.us
Letter from the Chairman
In October, the Third District Appellate Court bolstered the Board’s record
concerning cases appealed to the Appellate Court with two published opinions on
October 7, 2008. In both cases the Court affirmed the Board’s decision: a landfill
siting case from central Illinois (Peoria Disposal Company v. IPCB and County of
Peoria No. 3-07-0435) (Peoria Disposal) and a case involving a National Pollutant
Discharge Elimination System (NPDES) permit (IEPA and Village of New Lenox
v. IPCB, No. 3-07-0565) (New Lenox).
In Peoria Disposal
, the Court upheld the Board’s decision to affirm the Peoria
County Board’s denial of approval for the proposed expansion of a hazardous waste
landfill owned by Peoria Disposal Company (PDC). The Third District Appellate
Court agreed with the Board and found that the local siting authority’s written
decision memorializing that final action must be issued within 180 days and that the
County took final action within the 180-day period. In addition, the Court agreed
with the Board that the County also met the written decision requirement of Section
39.2(e) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/39.2(e) (2006)).
Regarding the issue of fundamental fairness in Peoria Disposal
, the Third District Appellate Court first determined
that, as the Board had argued, the “clearly erroneous” standard of review applies, rather than the “
de novo
” standard
applied by the Third District in Land & Lakes Co. v. PCB
, 319 Ill. App. 3d 41, 48-49, 743 N.E.2d 188, 194 (3rd
Dist. 2000). The Court overruled that portion of the Land & Lakes
decision regarding the standard of review to be
applied to the issue of fundamental fairness. The Court then applied the clearly erroneous standard and found that
the Board’s decision that the County proceedings were fundamentally fair is not clearly erroneous. As to the siting
criteria, the Third District found that the Board’s ruling on the criteria was not against the manifest weight of the
evidence.
In New Lenox
, the Third District Appellate Court upheld the Board’s decision invalidating the issuance of a
NPDES permit by the IEPA to New Lenox for expansion of a wastewater treatment facility. The Board had found
that the IEPA failed to properly consider the effect of the increased discharge from the New Lenox facility on the
receiving stream in violation of the Board’s rules concerning antidegradation of water quality. The Court’s opinion
noted that the Board must review the entire record relied upon by the IEPA to determine that the issuance of the
permit does not violate the Act or Board regulations.
In this case, the Third District Appellate Court agreed with the Board that the IEPA had failed to require sufficient
evidence to assure that the water quality of the receiving stream would not deteriorate as a result of the discharge.
Therefore, the Court affirmed the Board’s decision as not against the manifest weight of the evidence. The Court
also agreed with the Board that New Lenox had not justified additional discovery, because the Board was limited to
reviewing the record before the IEPA.
Sincerely,
Dr. G. Tanner Girard
