The Solid Waste Agency of Lake County v. Zion Landfill, Inc.

2026 IL App (2d) 250024

• Court: Appellate Court of Illinois
• Decided: January 29, 2026
• Docket: 2-25-0024
• Status: Published

Opinion

2026 IL App (2d) 250024 No. 2-25-0024 Opinion filed January 29, 2026

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE SOLID WASTE AGENCY OF LAKE ) Appeal from the Circuit Court COUNTY and THE COUNTY OF LAKE, ) of Lake County. ILLINOIS, ) ) Plaintiffs-Appellants, ) ) v. ) No. 22-MR-423 ) ZION LANDFILL, INC., ) Honorable ) Charles W. Smith, Defendant-Appellee, ) Judge, Presiding.

JUSTICE MULLEN delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶1 I. INTRODUCTION

¶2 Plaintiffs, the Solid Waste Agency of Lake County (SWALCO) and Lake County, appeal

the judgment of the circuit court of Lake County finding that defendant, Zion Landfill, Inc., was

exempt from paying fees on certain material brought into the landfill (tipping fees). This appeal

presents two primary issues. First, the parties disagree on whether materials used by defendant to

cover waste and to construct internal roadways are subject to the tipping fee. Second, the parties

dispute whether material certified as “non-special” by the generator of the material—meaning it is 2026 IL App (2d) 250024

no longer subject to additional handling and record-keeping requirements—is still “pollution

control waste,” which is exempt from the tipping fee. For the reasons that follow, we affirm.

¶3 II. BACKGROUND

¶4 Defendant operates a landfill in Lake County. SWALCO is an intergovernmental agency

formed by agreement in accordance with the Local Solid Waste Disposal Act (415 ILCS 10/1

et seq. (West 2022)). Lake County is a member of SWALCO. Defendant’s landfill falls within the

territorial jurisdiction of plaintiffs. James Lewis began working for defendant in 1995 and was the

general manager of the landfill from 2000 until 2020. Walter Willis has been the executive director

of SWALCO since 2007.

¶5 Defendant’s landfill accepts material from various sources. Generally, tipping fees are

payable to the Illinois Environmental Protection Agency (IEPA) on waste taken into the landfill.

Local government, such as SWALCO, is also authorized to impose similar fees on such waste.

There are several statutory exemptions to these fees. In this case, defendant uses wood chips to

cover waste (alternate daily cover) and to construct roads within and around its landfill (road base).

The wood chips must meet certain size specifications, and, in most cases, defendant either

purchases them or pays a fee for their delivery to the site. Defendant also uses what it terms

“recycled” aggregate materials—including asphalt, crushed concrete, and bricks—as road base.

The issue presented is whether these materials are “waste” that is subject to a tipping fee payable

to SWALCO. The IEPA is not a party to this case.

¶6 Before proceeding further, it would be helpful to explain the statutory and administrative

framework controlling the issues before us. Section 3.535 of the Environmental Protection Act

(Act) (415 ILCS 5/3.535 (West 2022)) defines “waste,” in pertinent part, as “garbage *** or other

discarded material.” Section 22.15(b)(1) of the Act requires owners of landfills that accept more

-2- 2026 IL App (2d) 250024

than 150,000 cubic yards of waste per year, like defendant, to pay to the state’s Solid Waste

Management Fund a fee of $2 per ton of waste they take in. Id. § 22.15(b)(1). Section 22.15(j)

allows units of local government to adopt ordinances imposing fees on waste that mirror the state

fee. Id. § 22.15(j). Plaintiffs adopted such ordinances.

¶7 Section 22.15(k) exempts a number of categories of waste from these fees, including

“pollution control waste.” Id. § 22.15(k); see id. § 22.44(c)(2). The Act defines “pollution control

waste” as

“waste generated as a direct or indirect result of the removal of contaminants from the air,

water or land, and which pose a present or potential threat to human health or to the

environment or with inherent properties which make the disposal of such waste in a landfill

difficult to manage by normal means.” Id. § 3.335.

Section 3.475(c) states that “pollution control waste” is a subcategory of “special waste.” Id.

§ 3.475(c). Special waste is subject to more stringent handling and record-keeping requirements.

See 35 Ill. Adm. Code 809.Subpart D; see also 35 Ill. Adm. Code 811.Subpart D. The responsibility

of classifying waste falls on the generator of the waste. See 35 Ill. Adm. Code 808.121(a) (2010)

(“Each person who generates waste shall determine whether the waste is a special waste.”). Section

3.475(c)(1) exempts certain types of material that would otherwise be “pollution control waste”

from the category of “special waste.” 415 ILCS 5/3.475(c)(1) (West 2022). Specifically, where the

generator of the waste certifies that it does not fall within any of five categories set forth in section

3.475(c)(1), the material is not considered “special waste.” Id. § 22.48(a). If such a certification is

made, the material need not be managed as special waste. Id. Also potentially relevant here is

section 22.54 of the Act, which allows a material normally required to be treated as waste to be

-3- 2026 IL App (2d) 250024

managed as non-waste if it is “used beneficially and in a manner that is protective of human health

and the environment.” Id. § 22.54 (providing for a “Beneficial Use Determination[ ]”).

¶8 Also relevant to the issues we face, “alternate daily cover” is material used to cover exposed

waste at the end of a business day. The permit under which defendant operates states that “[a]t the

end of each day of operation all exposed waste shall be covered with” at least six inches of clean

soil or various specified alternative materials (alternate daily cover). The list of acceptable alternate

materials includes petroleum-contaminated soils, wood chips, used foundry sand, processed

landscape waste, and clean construction and demolition debris. The permit further provides that

“[a]reas upon which alternate cover has been used must be covered with either conventional cover

or additional waste within six days.” Further, runoff from the alternate daily cover must be

collected as “leachate,” which is defined as liquid that has been in contact with “waste.” The permit

establishes additional requirements for the use of various materials.

¶9 Thus, we are presented with the following two questions. First, we must decide whether

alternate daily cover and road base constitute “other discarded material” such that they fall within

the statutory definition of “waste” and thus are subject to the Solid Waste Management Fund fee.

Second, we must decide whether waste certified by its generator as “non-special” loses its status

as pollution control waste such that it is no longer exempt from the fee.

¶ 10 Both parties muster extrinsic evidence in support of their interpretations. Plaintiffs point to

a letter from Douglas W. Clay of the IEPA dated April 1, 2009, and a letter from Scott O. Phillips

of the IEPA dated August 12, 2010.

¶ 11 The Clay letter begins by explaining that it is a response to a query by three individuals

representing three local agencies, including Willis of SWALCO. It adds that it is addressing the

question of whether “certain types of waste” are exempt from the fees imposed by sections 22.15

-4- 2026 IL App (2d) 250024

and 22.44 if “they are used as alternate daily cover, intermediate cover and/or road building

material.” It then states:

“As a general rule, use of a waste at a landfill as daily cover, intermediate cover, or roadbed

material does not make the waste exempt from the tipping fees imposed by Sections

22.15(b), 22.12(j) and 22.44(b) of the Act. There is, however, an exception to this rule:

clean construction and demolition debris that is used in accordance with Section 3.160(b)

of the Act is not a waste and therefore not subject to the tipping fees.”

The letter answers several other questions. Pertinent here, it states “No” when asked, “Are wastes

that are used for Alternate Daily Cover Material [alternate daily cover] exempt from the fees solely

because they are used as [alternate daily cover]?” It also responds negatively to “Are alternate

intermediate cover materials or road building materials which are waste (i.e. general construction

or demolition debris, shredded tires or shredded uncontaminated wood) exempt from fees even if

they are ultimately disposed of at the landfill after their use?” Additionally, using waste as alternate

daily cover is not “considered recycling, reclamation or reuse.” Whether a landfill charges a tipping

fee, takes the material for free, or pays for the material has no bearing on any of these issues.

¶ 12 The Phillips letter states that its purpose is to clarify which materials received by a landfill

are subject to fees under sections 22.15 and 22.44 of the Act. It notes that these sections “impose

State solid waste tipping fees upon non-hazardous waste that is permanently disposed at a landfill”

and that “[s]uch waste includes, but is not limited to, non-hazardous waste disposed at a landfill

via its use as daily cover or roadbed material as approved in the landfill’s permit.” It notes that

certain material is exempt from such fees, including pollution control waste. It further recognizes

that materials for which there has been a beneficial use determination are not waste and therefore

not subject to the fee and adds that such material “includes, but is not limited to, material used at

-5- 2026 IL App (2d) 250024

a landfill as daily cover or roadbed material pursuant to a beneficial use determination” so long as

the use is provided for in the landfill’s operating permit.

¶ 13 Extrinsic evidence that supports defendant’s position exists as well, specifically: the

deposition testimony and affidavit of James Lewis regarding a conversation he had with an IEPA

employee (Jan Zanitella); a letter from Michael F. Nechvatal of the IEPA dated January 6, 2004;

and a second letter from Nechvatal dated January 25, 2005. Defendant also points to the

legislature’s failure to enact legislation proposed by SWALCO in 2012 and the IEPA’s

discontinuance of an enforcement action against defendant in 2020.

¶ 14 At his deposition, Lewis, who had been defendant’s general manager since 2000 and its

employee since 1995, testified regarding a conversation he had with Zanitella. Lewis explained

that Zanitella was the “state auditor, the fee auditor.” In the late 1990s, she told him not to include

material used as alternate daily cover as waste on quarterly reports. Lewis believed that this

guidance had been put in writing, though he had been unable to locate such a document.

¶ 15 In January 2004, Nechvatal authored a letter (the Nechvatal letter) directed to Rose

Wagehoft of Brickyard Disposal & Recycling in Vermilion County. He stated that the letter was a

response to her inquiry regarding “whether contaminated soil that is used as an alternate daily

cover material is subject to the solid waste tipping fees described in Sections 22.15 and 22.44 of

the Illinois Environmental Protection Act.” He explained that contaminated soil that “meets the

Act’s definition of ‘pollution control waste’ ” is “exempt from the tipping fees pursuant to Sections

22.15(k)(2) and 22.44(c)(2) of the Act, regardless of whether it is used as daily cover.” He clarified,

“The pollution control waste exemption applies even if the contaminated soil is certified by the

generator not to be a special waste; the certified waste is still pollution control waste.” Further, he

noted, “Uncontaminated soil is not a waste and is also not subject to the tipping fees.” In response

-6- 2026 IL App (2d) 250024

to a series of questions from Waste Management, Nechvatal authored a second letter (the second

Nechvatal letter) clarifying a few points. Pertinent here, he explained that all pollution control

waste, not just contaminated soil, is exempt from the tipping fee regardless of whether the

generator certifies it as non-special waste. He also stated, when asked for the effective date for

landfills to begin applying the fee exemption, that “[d]eciding when and how to apply the tipping

fee exemption is a business decision that landfill operators will have to make.”

¶ 16 In 2012, SWALCO supported passage of a bill that would amend sections 22.15 and 22.44

to remove pollution control waste from the specified materials to which the fee exemption applied.

The amendments were not adopted. In an e-mail dated July 23, 2020, Willis explained to two

legislators that “SWALCO, frustrated with IEPA’s response to enforcing its 2009 letter, attempted

to pass legislation to get rid of all the exemptions in the Act” but “[t]he waste industry was able to

stop us.” It additionally noted, “We also had very little if any support from the [IEPA] on the bill.”

¶ 17 On December 19, 2019, the IEPA issued a violation notice to defendant and a number of

other landfills. The notice sent to defendant alleged two violations. First, it asserted that defendant

failed to pay tipping fees on 114,498 tons of waste in the amount of $254,185.56 for material used

as alternate daily cover and road base between January 1, 2016, and December 31, 2018. Second,

it alleged that defendant failed to maintain adequate records related to the tipping fee exemption.

¶ 18 Defendant provided a formal response to the notice on May 4, 2020. In its response,

defendant asserted that “waste” and “cover” are “distinct materials treated differently under the

[Act].” “Waste” is discarded material that serves no beneficial purpose. Conversely, “cover” is

defined by regulation as “material that is used to cover compacted solid waste in a sanitary landfill

and that is free of objects that would hinder compaction and free of content that would be

conducive to vector harborage, feeding or breeding.” 35 Ill. Adm. Code 807.104 (1985). “Cover,”

-7- 2026 IL App (2d) 250024

as used in the waste industry, “serves as a protective barrier between ‘waste’ and the environment.”

Defendant further argued that imposing fees in the manner advocated by the IEPA would constitute

a new rule requiring adherence to the rulemaking procedure, which had not been followed. Where

the rulemaking procedure has not been followed, the rule at issue is deemed “interpretive” and

cannot provide the basis for a penalty. Defendant further contended that the material it used for

road base was not “waste.” It explained that it primarily used two materials for road base—wood

chips and recycled asphalt (it uses smaller amounts of concrete and bricks as well). The wood

chips are processed before defendant uses them. Wood chips, according to defendant, are “products

used for building roads, not discarded waste materials that serve no beneficial purpose.” Finally,

defendant asserted that its record keeping was adequate.

¶ 19 Following a meeting between defendant and the IEPA, defendant offered a second

response. It stated, “We understand that the Agency, through the Violation Notice, is not seeking

to expand the category of materials subject to the waste fee or to change its positions on either the

application of the Section 22.15(k) exemptions or the distinction between a waste and a product.”

It further stated:

“The Zion VN does not concern contaminated soil. To confirm, contaminated soil is not

subject to the fee because it is used as alternative daily cover and because it constitutes

pollution control waste and hence is exempt from the waste fee under 415 ILCS 22.15(3).

Wood chips used as road base materials are not subject to the waste fee because they are

specially manufactured products and because they are authorized for use as road materials

in the facility’s permit.”

It also asserted that defendant has not changed the way it has kept records for 22 years; however,

defendant also proposed altering its record keeping to address the IEPA’s concerns.

-8- 2026 IL App (2d) 250024

¶ 20 On July 10, 2020, the IEPA rescinded its violation notices. In a letter to defendant, it wrote:

“The Illinois EPA has received and reviewed your correspondence related to the above-

referenced Violation Notices (‘the VNs’). In light of the information provided in your

correspondence and other information received to date, no further action in response to the

VNs is necessary at this time.”

In his e-mail of July 23, 2020, Willis, stated that he had received a telephone call from an IEPA

representative stating that the IEPA “had questions about the strength of the case and that the

agency was instead going to start talks with the waste industry and put on hold the court filings.”

¶ 21 Plaintiffs filed the instant declaratory-judgment action on August 30, 2022. The parties

filed cross-motions for summary judgment. In a written ruling, the trial court granted defendant’s

and denied plaintiffs’ motion. It found that as the parties filed cross-motions for summary

judgment, they agreed that no issue of fact existed and were “invit[ing] the court to decide the

issues based on the record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. The central issue, according to

the trial court, was whether the materials at issue constitute “waste.” Plaintiffs asserted that the

materials are “waste” because they have no further useful life, will remain in the landfill forever,

and cannot return to the chain of commerce. Defendant contended that the materials are not waste

because defendant uses them for alternate daily cover and road base. The trial court also rejected,

as contrary to the plain language of the Act, plaintiffs’ contention that classifying pollution control

waste as non-special waste renders the fee exemption inapplicable. It finally found that “the term

waste does not include wood chips and road debris which is used in the construction of roads

within the landfill, or which is used for alternate daily cover.” Further, pollution control waste is

exempt from the fee.

-9- 2026 IL App (2d) 250024

¶ 22 In the course of its ruling, the trial court also noted that both parties could point to

communications from the IEPA in support of their positions. It then observed that despite the

opinion expressed in the Clay letter, the IEPA never sought to recover the tipping fees until it issued

the notice of violation in 2019 and that it abandoned that attempt after reviewing defendant’s

response. The trial court explained:

“The IEPA has been confronted with this issue many times over the past two

decades and has only once, in 2019, commenced an enforcement action only to retreat from

that position. This is a clear indication to this court that the Agency charged with

enforcement of environmental statutes does not consider the material at issue in this case

to be ‘waste’ and that the Defendant’s position is correct that the material is being recycled

and used as Alternative Daily Cover and, thus, exempt from the fees sought by the

Plaintiffs.”

Plaintiffs now appeal.

¶ 23 III. ANALYSIS

¶ 24 On appeal, plaintiffs raise two main issues. First, they contend that materials used by

defendant as alternate daily cover and road base are “waste” within the meaning of the Act and

that tipping fees are due on it. Second, they contend that pollution control waste that has been

certified as non-special by its generator is not exempt from tipping fees. Defendant also interposes

two affirmative defenses, estoppel and laches; however, given our disposition of this appeal, we

need not address them.

¶ 25 Because this appeal comes to us following a grant of summary judgment, our review is

de novo. A court reviewing a grant of summary judgment, construing the record strictly against the

movant and in favor of the party opposing summary judgment, must determine whether no genuine

- 10 - 2026 IL App (2d) 250024

issue of material fact exists and the movant is entitled to judgment as a matter of law. Monson v.

City of Danville, 2018 IL 122486, ¶ 12.

¶ 26 Both issues raised by plaintiffs turn on the interpretation of various sections of the Act. Our

goal in interpreting a statute is to ascertain and give effect to the intention of the legislature.

Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1041 (2010).

The best indicator of that intent is the language of the statute itself. Abruzzo v. City of Park Ridge,

231 Ill. 2d 324, 332 (2008). If a statute is clear and unambiguous, a court must give effect to its

plain language, without resorting to other aids of construction. Hobby Lobby Stores, Inc. v.

Sommerville, 2021 IL App (2d) 190362, ¶ 20. In determining the intent of the legislature, a court

must consider “statutes in their entirety, their purposes, the problems they target, and the goals they

seek to achieve.” Abruzzo, 231 Ill. 2d at 332. Furthermore, “Words and phrases should not be

interpreted in isolation, but must be construed in light of other relevant provisions of the statute.”

Id. at 333. While we are not bound by an administrative agency’s interpretation of a statute, a court

“will give substantial weight and deference to an interpretation of an ambiguous statute by the

agency charged with the administration and enforcement of the statute.” Abrahamson v. Illinois

Department of Professional Regulation, 153 Ill. 2d 76, 97-98 (1992).

¶ 27 A. Is Alternate Daily Cover and Road Base “Waste”?

¶ 28 “It is an old saying that one person’s trash is another one’s treasure.” Allegra Helfenstein,

Comment, U.S. Controls on International Disposal of Hazardous Waste, 22 Int’l Law. 775, 775

(1988). In this case, trash would mean revenue for the taxing body. Section 22.15(b)(1) of the Act

requires the owner of a landfill to pay a fee on each ton of “waste” it takes in. 415 ILCS

5/22.15(b)(1) (West 2022). The parties disagree as to whether materials used by defendant as

alternate daily cover and road base are “waste” and therefore subject to tipping fees. Plaintiffs

- 11 - 2026 IL App (2d) 250024

contend that the plain meaning of the term “waste” as used in the Act indicates that materials

deposited permanently in a landfill constitute “waste.” Defendant counters by pointing to the plain

language of the Act, as well as to extrinsic evidence (various IEPA interpretations and conduct that

support defendant’s position), without first demonstrating that there is some ambiguity in the

statutory scheme that requires the resort to such evidence.

¶ 29 As a threshold matter, we must determine whether some ambiguity pertinent to the issues

in this case exists. We begin with the statutory definition of “waste”:

“ ‘Waste’ means 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, but does not include solid or

dissolved material in domestic sewage, or solid or dissolved materials in irrigation return

flows, or coal combustion by-products as defined in Section 3.135, or industrial discharges

which are point sources subject to permits under Section 402 of the Federal Water Pollution

Control Act, as now or hereafter amended, or source, special nuclear, or by-product

materials as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 921) or any

solid or dissolved material from any facility subject to the Federal Surface Mining Control

and Reclamation Act of 1977 (P.L. 95-87) or the rules and regulations thereunder or any

law or rule or regulation adopted by the State of Illinois pursuant thereto.” (Emphasis

added.) Id. § 3.535.

The parties do not argue that the materials at issue here are “garbage” or any of the other items

specifically listed in section 3.535; therefore, we must ascertain the meaning of the catch-all

provision, “other discarded material.” To constitute “waste,” the material used by defendant must

- 12 - 2026 IL App (2d) 250024

be “other discarded material.” Thus, to determine whether “waste” is ambiguous, we must consider

whether “other discarded material” is ambiguous.

¶ 30 Two cases discussed by the parties are pertinent to our inquiry, neither of which held “other

discarded material” to be ambiguous: Alternate Fuels, Inc. v. Director of the Illinois Environmental

Protection Agency, 215 Ill. 2d 219 (2004), and People ex rel. Madigan v. Lincoln, Ltd., 383 Ill.

App. 3d 198 (2008). In Alternate Fuels, the issue relevant to this case was whether material

produced by Alternate Fuels, Inc. (AFI), constituted “waste” under the Act, such that AFI was

required to obtain a permit from the IEPA (Agency). Alternate Fuels, 215 Ill. 2d at 222. The

material “consisted of various types of plastics generated by the shredding of empty agricultural

chemical containers into chips approximately one inch in size.” Id. “Prior to shredding, a company

named Tri-Rinse, Inc., ‘triple rinsed’ the containers according to United States Environmental

Protection Agency and Department of Agriculture guidelines to remove residual agricultural

chemicals.” Id. AFI would sell the “chips to Illinois Power for use as fuel at its Baldwin Power

Station.” Id. The Agency asserted 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.” Id. The trial court determined that the materials in question had not been

“discarded” so they were not “waste.”

¶ 31 On appeal, the supreme court considered the definition of “discarded material.” Id. at 237.

The Agency maintained “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 a purpose other than that

originally intended by the generator of the material.” Id. AFI argued 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 material at issue is not “discarded” and therefore not “waste.” Id.

- 13 - 2026 IL App (2d) 250024

¶ 32 The supreme court first noted that the definition of “waste” as “other discarded material”

focuses on the material itself without regard to who purportedly discarded the material. (Emphasis

and internal quotation marks omitted.) Id. at 239. It therefore rejected the Agency’s assertion that

“discarded” should be assessed from the perspective of the generator of the material. Id. Having

previously invoked the principle that “words and phrases should not be construed in isolation, but

must be interpreted in light of other relevant provisions of the statute” (id. at 238), the court turned

to section 3.380, upon which AFI was relying, for guidance regarding the meaning of “discarded”:

“ ‘ “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 omitted.) Id. at 239 (quoting 415 ILCS 5/3.380 (West 2002)).

It noted:

“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.’ 415 ILCS 5/3.380 (West 2002). ‘Materials’ are further

subdivided into those that are ‘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.’ 415 ILCS 5/3.380 (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

[which] are *** returned to the economic mainstream in the form of raw materials and

- 14 - 2026 IL App (2d) 250024

products.’ Thus, materials are ‘discarded’ unless they are returned to the economic

mainstream.” Id. at 240.

The final sentence of this quote, read in isolation, suggests that the supreme court held that all

material that has not been returned to the economic mainstream is discarded material. In context,

it is apparent that the final sentence was a reference to the facts of that case in light of AFI’s

argument that section 3.380’s definition of “discarded” informed the interpretation of what the

term meant in the statutory definition of “waste.” That is, under section 3.380, the only way the

plastic containers at issue in Alternate Fuels could have been deemed waste is if they had not been

returned to the economic mainstream.

¶ 33 The penultimate sentence in the quotation explains that the legislature has specified that

“discarded materials” are not materials that are “returned to the economic mainstream.” It does not

follow that all materials not returned to the economic mainstream are discarded. From the

proposition, “all cats are not dogs,” one can infer that “if it is a dog, then it is not a cat”; however,

it does not follow that “if it is not a dog, then it is a cat.” Similarly, something that has been returned

to the economic mainstream has not been discarded, but saying something has not been returned

to the mainstream encompasses the possibility that it has been discarded as well as a myriad of

other possibilities. For example, the cloth saved for mending has little prospect of being returned

to the economic mainstream in any meaningful way, yet it cannot be said to be “discarded” in any

usual sense of the word. Therefore, we read the final sentence in the quotation from Alternate Fuels

set forth above as a response to AFI’s argument concerning section 3.380 and not as a general

pronouncement that only those materials that have been returned to the economic mainstream are

not discarded. Put differently, being returned to the economic mainstream is a sufficient, but not

necessary, condition for material to avoid being deemed discarded.

- 15 - 2026 IL App (2d) 250024

¶ 34 Defendant argues that, like the containers in Alternate Fuels, the wood chips (and other

materials) are “collected, processed, and returned to the economic mainstream” as useful and

necessary products for defendant’s operations. Clearly, however, the materials used by defendant

as alternate daily cover or road base are not “returned to the economic mainstream” in the same

manner as the plastic containers that were rinsed, shredded, and then sold by AFI to Illinois Power.

As such, those materials cannot avoid being deemed discarded if that question turns on whether

they have been returned to the economic mainstream. But, as explained, the holding in Alternate

Fuels does not end our inquiry, as the possibility remains open that the materials here are otherwise

not discarded material.

¶ 35 The parties also point to Lincoln, 383 Ill. App. 3d 198, another case concerning the

definition of “waste” under the Act. In Lincoln, the defendants operated a business that accepted

material that it eventually “mounded into a pile spanning over 26 acres and 70 feet in height.” Id.

at 199-200. They claimed that they intended to use the mound to construct an “all-seasons downhill

skiing and snowboarding facility.” Id. at 200. The defendants argued that various exceptions

removed the mound from the definition of “waste,” including that the material had been “separated

or processed and returned to the economic mainstream in the form of raw materials or products.”

See 415 ILCS 5/3.160(b) (West 2006). After the trial court granted partial summary judgment, the

defendants filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1,

1994), certifying the following question:

“ ‘Whether clean construction and demolition debris deposited onto the land for the

purpose of providing the infrastructure for a recreational facility to be built at the site and

to be used for snow skiing/snow boarding (facts which are undisputed for purposes of the

August 4, 2007 partial summary judgment order) constitutes “waste” under the Illinois

- 16 - 2026 IL App (2d) 250024

Environmental Protection Act and requires a permit in compliance with the Act’s waste

disposal requirements including but not limited to 415 ILCS 5/3.305, 415 ILCS 5/21

et seq., 415 ILCS 5/21.1 and 35 Ill. Adm. Code 812.101(a).’ ” Lincoln, 383 Ill. App. 3d at

203.

Clean construction debris is excepted from the definition of “waste” under section 3.160 if it is

“separated or processed and returned to the economic mainstream in the form of raw materials or

products.” 415 ILCS 5/3.160(b) (West 2006).

¶ 36 The Lincoln court, after determining the material did not meet the statutory requirement

that it be “separated or processed” (415 ILCS 5/3.160(b) (West 2006)), addressed whether the

material the defendant had accumulated had been “returned to the economic mainstream.” Lincoln,

383 Ill. App. 3d at 206. It noted that the defendant was “not returning the material to the stream of

commerce when it permanently ke[pt] the material on site for its own use.” Id. It rejected the

defendant’s reliance on its proposed development as speculative. Id. at 207. Further, it

distinguished Alternate Fuels, noting that, unlike AFI, the defendant’s “activities do not include a

commercial transaction with a third party concerning a newly created raw material or product.”

¶ 37 Thus, defendant here, like the defendant in Lincoln, did not engage in a commercial

transaction with a third party and instead kept the material on its site for use as alternate daily

cover and road base. In accordance with Lincoln, it is clear that defendant has not returned any of

the materials at issue in this case to the economic mainstream. It does not, therefore, avoid being

deemed “waste” on that basis. The question is whether it otherwise remains outside the definition

of “waste.”

¶ 38 To begin with, we do not regard “other discarded material” to be ambiguous. It is apparent

to us that the supreme court did not regard the terms “waste” and “discarded” as ambiguous in

- 17 - 2026 IL App (2d) 250024

Alternate Fuels. To explain its use of section 3.380 to ascertain the meaning of “discarded,” the

court invoked the principle that “words and phrases should not be construed in isolation, but must

be interpreted in light of other relevant provisions of the statute.” Id. at 238. Nowhere does the

opinion mention the in pari materia doctrine. A statute must be found ambiguous before reliance

on the in pari materia rule is warranted. See People v. Rowell, 2020 IL App (4th) 190231, ¶ 17.

The principle that a statute should be read as a whole is part of the initial inquiry in ascertaining a

statute’s meaning, and its invocation does not require a finding that an ambiguity exists (though

this principle may be relied upon if a statute is ambiguous as well (see People v. Rinehart, 2012 IL

111719, ¶ 26)). See Rowell, 2020 IL App (4th) 190231, ¶ 16.

¶ 39 Neither party attempts to establish that “discarded” is not clear. Hence, we must look to the

plain meaning of the phrase. Hobby Lobby Stores, Inc., 2021 IL App (2d) 190362, ¶ 20. In such

circumstances, it is appropriate to consult a dictionary. Capron Rescue Squad District v. North

Boone Fire Protection District No. 3, 2019 IL App (2d) 190355, ¶ 29. Pertinent here, “discard” is

defined as “to drop, dismiss, let go, or get rid of as no longer useful, valuable, or pleasurable.”

Webster’s Third New International Dictionary 644 (2002). Keeping in mind that whether material

is discarded is assessed with regard to the material itself, rather than from the perspective of the

generator of the material (Alternate Fuels, 215 Ill. 2d at 239), and in light of the plain meaning of

“discard,” it is apparent that the material that defendant is using as alternate daily cover and road

base is not “no longer useful” and therefore has not been “discarded.” See also 35 Ill. Adm. Code

807.104 (1985) (defining “Cover material” as “material that is used to cover compacted solid waste

in a sanitary landfill”). In turn, it is not “waste” as defined by the Act, and it is not subject to the

tipping fee for waste set forth in sections 22.15 and 22.44. See 415 ILCS 5/22.15, 22.44 (West

2022).

- 18 - 2026 IL App (2d) 250024

¶ 40 Plaintiffs’ argument about defendant’s failure to seek a beneficial use determination is

unavailing. Section 22.54 (which provides for a beneficial use determination) allows “a material

otherwise required to be managed as waste [to] be managed as non-waste.” It has no application

here because the material is not waste in the first instance. See 415 ILCS 5/22.54 (West 2022).

Also, since the statute is not ambiguous, plaintiffs’ reliance on the terms of the permit under which

defendant was operating is misplaced.

¶ 41 Although we have found that the statutory terms at issue here are not ambiguous, we note,

nevertheless, that our conclusion is consistent with IEPA practice on this issue. As a practical

matter, the IEPA appears to have never actually collected fees in the manner advocated by

plaintiffs. The IEPA did not attempt to collect the fee until it issued a violation notice to defendant

and other landfills in 2019. After receiving defendant’s response, the IEPA declined to pursue the

matter further. We also note that the IEPA has not sought to intervene in this case.

¶ 42 In sum, we hold that the plain meaning of “discard” and, in turn, “waste” does not

encompass the sort of materials defendant uses as alternate daily cover and road base. We affirm

this portion of the trial court’s judgment.

¶ 43 B. Pollution Control Waste

¶ 44 Generally, “pollution control waste” is exempt from the tipping fee. Id. §§ 22.15(k)(2),

22.44(c)(2). Plaintiffs argue that when pollution control waste is certified by its generator as “non-

special waste,” it is no longer entitled to the exemption. The plain language of the Act does not

support plaintiffs’ position.

¶ 45 Plaintiffs point out that “pollution control waste” is defined as

“any liquid, solid, semi-solid or gaseous waste generated as a direct or indirect result of the

removal of contaminants from the air, water or land, and which pose a present or potential

- 19 - 2026 IL App (2d) 250024

threat to human health or to the environment or with inherent properties which make the

disposal of such waste in a landfill difficult to manage by normal means.” Id. § 3.335.

“Pollution control waste” is a subcategory of “special waste.” Id. § 3.475(c). “Special waste” is

subject to enhanced record-keeping and handling requirements. See, e.g., id. § 21(g)(1); see also

35 Ill. Adm. Code 809.Subpart D; 35 Ill. Adm. Code 811.Subpart D. In appropriate circumstances,

the generator of the waste may certify that it is “non-special.” See 415 ILCS 5/22.48 (West 2022).

Where the waste is certified as “non-special,” it need not be managed as “special waste.” Id.

§ 22.48(a). Thus, plaintiffs reason, since pollution control waste certified as “non-special waste”

is not subject to enhanced handling and record-keeping requirements, there is no reason to exempt

it from the tipping fee.

¶ 46 A closer examination of the relevant statutes exposes the flaw in plaintiffs’ reasoning. The

generator of waste must first determine whether the waste at issue is “special.” See id. § 3.475(c);

35 Ill. Adm. Code 808.121 (2010). Included within the definition of “special waste” is pollution

control waste. 415 ILCS 5/3.475(c) (West 2022). Where the waste is found to be pollution control

waste, the generator must make a further determination as to whether it is “non-special”:

“ ‘Special waste’ means any of the following:

***

(c) industrial process waste or pollution control waste, except:

(1) any such waste certified by its generator, pursuant to Section 22.48 of

this Act, not to be any of the following:

(A) a liquid, as determined using the paint filter test set forth

in subdivision (3)(A) of subsection (m) of Section 811.107 of Title

35 of the Illinois Administrative Code;

- 20 - 2026 IL App (2d) 250024

(B) regulated asbestos-containing waste materials, as

defined under the National Emission Standards for Hazardous Air

Pollutants in 40 CFR Section 61.141;

(C) polychlorinated biphenyls (PCB’s) regulated pursuant to

40 CFR Part 761;

(D) an industrial process waste or pollution control waste

subject to the waste analysis and recordkeeping requirements of

Section 728.107 of Title 35 of the Illinois Administrative Code

under the land disposal restrictions of Part 728 of Title 35 of the

Illinois Administrative Code; and

(E) a waste material generated by processing recyclable

metals by shredding and required to be managed as a special waste

under Section 22.29 of this Act[.]” 415 ILCS 5/3.475(c)(1) (West

Thus, this statute removes five specific types of pollution control waste from the category of

special waste.

¶ 47 It is apparent that other sorts of pollution control waste may exist that fall within the

definition of “special waste.” Notably, section 22.48 makes room for this possibility:

“An industrial process waste or pollution control waste not within the exception set forth

in subdivision (2) of subsection (c) of Section 3.475 of this Act must be managed as special

waste unless the generator first certifies in a signed, dated, written statement that the waste

is outside the scope of the categories listed in subdivision (1) of subsection (c) of Section

3.475 of this Act.” Id. § 22.48(a).

- 21 - 2026 IL App (2d) 250024

The plain language of this passage indicates that there is pollution control waste that must be

managed as special waste that exists outside the exceptions set forth in section 3.475(c)(1). It states

that pollution control waste certified as being within one of the exceptions need not be managed

as special waste, but pollution control waste not certified as being within one of the exceptions

must be managed as special waste. Thus, it contemplates pollution control waste that exists outside

of any of the exceptions. Moreover, this statute does not state that the non-special waste otherwise

loses its status as pollution control waste if it falls within an exception. That is, whether or not the

waste falls within an exception to special waste, the waste at issue remains pollution control waste.

¶ 48 The legislature has exempted all pollution control waste from the tipping fee. See id.

§§ 22.15(k)(2), 22.44(c)(2). This exemption is based on the waste’s status as pollution control

waste; non-special waste is not mentioned. See id. §§ 22.15(k)(2), 22.44(c)(2). Had the legislature

intended to exclude pollution control waste that had been certified by its generator as non-special

from the exemption, it could have easily said so in these statutes. We, of course, are not free to

“add[ ] unstated exceptions, conditions, or limitations to the language of a statute.” Manago v.

County of Cook, 2017 IL 121078, ¶ 33. Hence, we are compelled to reject plaintiffs’ request for us

to limit the fee exception to pollution control waste that has not been certified as non-special. We

note that the plain language of the Act is consistent with the position expressed in the Nechvatal

letters.

¶ 49 Plaintiffs also argue that the burden should be placed on a landfill to show that “if the waste

has been certified as non-special, then the landfill operator will have to show a threat to human

health or the environment before it may be shown to be pollution control waste and hence exempt.”

Plaintiffs point out that the definition of pollution control waste is waste that “pose[s] a present or

potential threat to human health or to the environment or with inherent properties which make the

- 22 - 2026 IL App (2d) 250024

disposal of such waste in a landfill difficult to manage by normal means.” 415 ILCS 5/3.335 (West

2022). Since non-special waste is not subject to enhanced management requirements (see id.

§ 22.48(a)), plaintiffs reason, it is not “difficult to manage by normal means” (id. § 3.335).

Accordingly, plaintiffs conclude that a landfill operator should have to show that the waste falls

within the other prong of the definition of pollution control waste to be entitled to the exemption—

specifically, that the waste “pose[s] a present or potential threat to human health or to the

environment.” Id. We disagree.

¶ 50 The IEPA has placed on the generator of waste the responsibility of “determin[ing] whether

the waste is a special waste.” See 35 Ill. Adm. Code 808.121(a) (2010). This entails ascertaining

whether the waste is pollution control waste and, in turn, whether, if it is pollution control waste,

it is exempt, non-special waste. See 415 ILCS 5/3.475 (West 2022). Thus, prior to waste even

arriving at a landfill, it has been classified as pollution control waste. We find plaintiff’s argument

to the contrary unpersuasive in light of these enactments. Plaintiffs point to no statute or regulation

that would require a landfill operator to again classify this waste that has already been classified.

¶ 51 In short, we reject plaintiffs’ argument on this point and affirm this portion of the trial

court’s judgment as well.

¶ 52 IV. CONCLUSION

¶ 53 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.

¶ 54 Affirmed.

- 23 - 2026 IL App (2d) 250024

Solid Waste Agency of Lake County v. Zion Landfill, Inc., 2026 IL App (2d) 250024

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 22-MR-423; the Hon. Charles W. Smith, Judge, presiding.

Attorneys Eric F. Rinehart, State’s Attorney, of Waukegan (Karen D. Fox, for Assistant State’s Attorney, of counsel), and Derke J. Price and Appellant: Mary Jean Dolan, of Ancel Glink, P.C., of Chicago, for appellants.

Attorneys Philip L. Comella and Ryan G. Rudich, of Taft Stettinius & for Hollister LLP, of Chicago, for appellee. Appellee:

- 24 -