ILLINOIS POLLUTION CONTROL BOARD
June 18, 2009
IN THE MATTER OF:
PETITION OF MAXIMUM INVESTMENTS,
LLC FOR AN ADJUSTED STANDARD
FROM 35 ILL. ADM. CODE 740.210(a)(3)
FOR STONEY CREEK LANDFILL IN
PALOS HILLS, ILLINOIS
)
)
)
)
)
)
)
AS 09-2
(Adjusted Standard – Land)
DISSENTING OPINION (by T.E. Johnson):
I agree that the Board lacks the authority to award adjusted standard relief from a
statutory
requirement (415 ILCS 5/28.1(a) (2006)). I disagree, however, with the majority’s
conclusion that the Board rule here codifies a statutory requirement.
The majority opinion finds that the requirement for landowner written permission is
statutory. According to the majority, the requirement comes from a “plain reading” of two
provisions of the Environmental Protection Act:
“Remediation Applicant” (RA) means any person seeking to perform or
performing investigative or remedial activities under this Title,
including
the
owner or operator of the site or persons authorized by law or consent to act on
behalf of or in lieu of the owner or operator of the site. 415 ILCS 5/58.2 (2006)
(emphasis added).
(b)
Review and evaluation by the Agency.
(1)
Except for sites excluded under subdivision (a)(2) of Section 58.1,
the Agency shall, subject to available resources, agree to provide
review and evaluation services for activities carried out pursuant to
this Title for which the RA requested the services in writing. As a
condition for providing such services, the Agency
may
require that
the RA for a site:
***
(F)
Demonstrate, if necessary, authority to act on behalf of or
in lieu of the owner or operator. 415 ILCS 5/58.7(b)(1)
(2006) (emphasis added).
I do not believe that these statutory provisions require landowner written permission.
The implicit finding of the majority is that, as used in the Section 58.2 definition, the term
“including” means “namely.” The word “including,” however, is more commonly understood to
mean that the persons or things thereafter identified constitute illustrative examples, not an
exhaustive list.
See
People v. Perry, 224 Ill. 2d 312, 328-31, 864 N.E.2d 196, 207-09 (2007)
2
(given its plain and ordinary meaning, even in the absence of additional verbiage such as “but is
not limited to,” the term “includes” introduces a partial list, not an exclusive one). The Section
58.7(b)(1) provision uses the permissive term “may,” which the majority apparently reads as the
mandatory word “must.”
See In re
Marriage of Freeman, 106 Ill. 2d 290, 298, 478 N.E.2d 326,
329 (1985) (“Except in very unusual circumstances affecting the public interest, the legislative
use of the word ‘may’ is permissive rather than mandatory.”). I submit that neither of the
majority’s statutory interpretations gives a “plain reading” of the Environmental Protection Act.
I believe that because the Board rule from which relief is requested does not reflect a
statutory requirement, the Board has the authority to consider the petition for adjusted standard.
For these reasons, I respectfully dissent.
1
__________________________________
Thomas E. Johnson
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the above dissenting opinion was submitted on June 18, 2009.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
1
It is my position that the definition of “Remediation Applicant” is properly limited to the
specific examples given by the General Assembly,
plus
others of like kind.
See
City of East St.
Louis v. East St. Louis Financial Advisory Authority, 188 Ill. 2d 474, 484-85, 722 N.E.2d 1129,
1134 (1999) (“The doctrine of
ejusdem generis
provides that when a statute lists several classes
of persons or things but provides that the list is not exhaustive, the class of unarticulated persons
or things will be interpreted as those ‘others such like’ the named persons or things.”). Further,
even if the Board were to ultimately grant the instant adjusted standard request, and the Illinois
Environmental Protection Agency were to then accept the resulting Site Remediation Program
application, I do not believe that either of those events would convey to petitioner any access
rights to, or property interest in, the site.
