No. 3--04--0536
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
UNITED DISPOSAL OF BRADLEY, ) Petition for Review of Order INC. and MUNICIPAL TRUST & ) of the Illinois Pollution SAVINGS BANK as Trustee under ) Control Board dated June 17, Trust 0799, ) 2004 ) Petitioners-Appellants, ) ) v. ) No. PCB 03--235 ) THE POLLUTION CONTROL BOARD ) and THE ENVIRONMENTAL ) PROTECTION AGENCY, ) Appeal from a Decision of ) the Illinois Pollution Control Respondents-Appellees. ) Board
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
This appeal comes to us on a petition for review of an order
of the Illinois Pollution Control Board (the Board) dated June
17, 2004. Petitioners, United Disposal of Bradley, Inc. (United
Disposal), and Municipal Trust & Savings Bank, sought to have a
geographical limitation removed from their operating permit. The
Illinois Environmental Protection Agency (the Agency) denied the
petitioners' request. The Board affirmed that denial.
Petitioners appeal.
BACKGROUND In June of 1994, petitioners filed an application with the
Agency to obtain a development permit for a local waste transfer
station. On September 21, 1994, a development permit was issued
by the Agency that contained Special Condition No. 9, which
stated, "No waste generated outside the municipal boundaries of
the Village of Bradley may be accepted at this facility."
Critical facts regarding this application and the statutory
scheme under which it was issued will be discussed below to reduce repetition.
On December 9, 1994, the petitioners' facility was
completed. On January 19, 1995, the Agency issued an operating
permit that also contained Special Condition No. 9.
On March 31, 2003, petitioners filed an application for
modification, asking the agency to remove Special Condition No. 9
from their operating permit. On May 15, 2003, the Agency
directed correspondence to the petitioners informing them that
their application was denied. Specifically, the Agency informed
the petitioners that their application was "deemed not to have
been filed because it fail[ed] to set forth information,
documents or authorizations as required" by the Illinois
Administrative Code. The Agency continued that, "due to the
deficiency" with petitioners' application, no "technical review
of the application" was performed.
The petitioners appealed the Agency's denial of its
2 application to the Board. Both the petitioners and Agency filed
motions for summary judgment with the Board. The Board
ultimately granted the Agency's motion for summary judgment.
Petitioners make the following claims on appeal: (1) Special
Condition No. 9 violates the commerce clause of the United States
Constitution (U.S. Const., art. I, '8, cl. 3) and, therefore, is
unconstitutional; (2) Special Condition No. 9 is unconstitutionally vague; (3) the Agency wrongfully denied
petitioners' application since no violation of the Environmental
Protection Act (the Act) (415 ILCS 5/1 et seq. (West 2002)) would
have occurred if the application had been granted; and (4) the
Agency's reply to petitioners' application was untimely in
violation of the Agency's own regulations (35 Ill. Adm. Code
'807.205(f) (1985)) and, therefore, the application should have
been granted by operation of law. We address these issues in the
order presented. I. Commerce Clause
Petitioners argue that the main issue on appeal is "whether
the subject clause of the permit Special Condition No. 9, which
restricts petitioners from accepting waste that is generated
outside the 'Municipal Boundary' of the Village of Bradley, is
invalid as unconstitutional, as a per se violation of the U.S.
Commerce Clause." This might be true if the transfer station in
3 question is otherwise in compliance with the Act and qualified as
a regional pollution control facility. As we will discuss below,
it is not. We find that the Agency acted properly and,
therefore, affirm the order of the Board.
On March 27, 2003, petitioners filed a document with the
Agency that petitioners titled, "Application for Modification to
Operating Permit 1994-30[6]-OP." While petitioners chose to
refer to their action as an "application for modification," in reality, the petitioners were attempting to gain authority to
transform their "local" pollution control facility into a
"regional" pollution control facility. To fully understand the
nature of petitioners' actions, we find it necessary to review
the circumstances surrounding their original application and the
statutory scheme under which it was granted.
A. Statutory Scheme Under Which Original Permit Issued
At the time petitioners applied for their permit, the Act
required that every "regional pollution control facility" obtain
siting approval prior to its operation. 415 ILCS 5/39, 39.2
(West 1992). The Act defined a regional pollution control
facility as "any *** waste transfer station, waste treatment
facility or waste incinerator that accepts waste from or that
serves an area that exceeds or extends over the boundaries of any
local general purpose unit of government." 415 ILCS 5/3.32 (West
1992).
4 In 1994, at the time of petitioners' application, they had a
choice: apply for a regional pollution control facility permit
and obtain siting approval or apply for a permit to operate a
local pollution control facility in which case siting approval
was not required. They chose the latter.
B. Petitioners' Original Application
On June 17, 1994, the petitioners filed an "Application for
Development Permit" with the Agency. The application noted that
"Siting Certification Form" LPC-PAB was completed and enclosed.
It further noted that siting approval was not "under litigation"
at the time of filing.
The siting certification form attached to the application
stated as follows:
"Siting Approval. The Applicant operates a
solid waste hauling company serving customers within
the Village of Bradley. For this reason, the proposed
facility qualifies as a non-regional facility. Sections
22.14 and 39.2 of the Act do not apply to non-regional
facilities. Thus, siting approval reverts to the local
zoning authority."
C. Tennsv v. Gade Approximately 11 months prior to the date on which
petitioners filed their application, the United States District
Court for the Southern District of Illinois issued an unpublished
5 order which declared the statutory scheme described in part IA of
this opinion unconstitutional. Tennsv, Inc. v. Gade, No. 92 503
WLB, (S.D. Ill. July 8, 1993). The court found that the Act
"establishes a statutory scheme which distinguishes between
facilities located outside the geographic boundaries of a general
purpose unit of government and those which are not so located."
Tennsv, slip op. at 2-3. The court went on to note that there
was "no valid factor to justify the discriminatory effect of the statutory scheme" and that it therefore "violates the Commerce
Clause." Tennsv, slip op. at 5.
In response to the Tennsv decision, the Illinois legislature
amended the Act effective December 22, 1994. The amendments
removed the distinction between regional and local pollution
control facilities.
Under the Act as amended in 1994, and in its current form,
all "pollution control facilities" are required to obtain siting
approval. 415 ILCS 5/3.330, 39(c), 39.2 (West 2004).
Petitioners argue that their current application, filed
approximately 10 years after the Tennsv decision, was improperly
denied due to the Agency and the Board's incorrect interpretation
of constitutional law. We disagree and hold that petitioners'
application was correctly denied as the Agency and Board
recognized it for what it was, an attempt to operate a regional
pollution control facility without first obtaining the necessary
6 siting approval required by the Act.
Petitioners now denounce the limitations contained within
Special Condition No. 9, which they requested and failed to
object to for approximately 10 years. They do a superb job of
cataloging numerous commerce clause cases describing the evils of
economic protectionism. That being said, we do not find the
circumstances surrounding the denial of petitioners' application
to be the result of unconstitutional economic protectionism. We note that neither the current nor prior statutory scheme involves
a Philadelphia v. New Jersey situation in which commerce is
blatantly halted at the border. See Philadelphia v. New Jersey,
437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978) (United
States Supreme Court struck down a New Jersey statute that
prohibited the importation of waste which originated or was
collected outside the territorial limits of the State of New
Jersey). Nor is this a case in which out-of-state waste is
subject to increased fees or surcharges above and beyond those
charged against similar waste generated inside the State of
Illinois. See Chemical Waste Management, Inc. v. Hunt, 504 U.S.
334, 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992) (which invalidated
an Alabama statute that imposed higher fees on hazardous waste
disposed of in Alabama landfills which originated outside Alabama
than fees charged to similar waste that originated inside the
state). See also Oregon Waste Systems, Inc. v. Department of
7 Environmental Quality of the State of Oregon, 511 U.S. 93, 128 L.
Ed. 2d 13, 114 S. Ct. 1345 (1994) (which held Oregon's statute
imposing a surcharge on out-of-state waste disposal that was
almost three times greater than the surcharge on in-state waste
violated the commerce clause).
This case involves a now defunct statutory scheme that
subjected those who wanted to accept waste from outside a local
unit of government to siting approval while subjecting those who wanted to accept waste from only a local entity to that local
entity's zoning laws. None of the cases cited by petitioners
gave the improperly restricted party such a choice. See
Northeast Sanitary Landfill, Inc. v. South Carolina Department of
Health & Environmental Control, 843 F. Supp. 100 (D.S.C. 1992);
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of
Natural Resources, 504 U.S. 353, 119 L. Ed. 2d 139, 112 S. Ct.
2019 (1992); Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed.
2d 475, 98 S. Ct. 2531 (1978); Associated Industries of Missouri
v. Lohman, 511 U.S. 641, 128 L. Ed. 2d 639, 114 S. Ct. 1815
(1994); New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 100
L. Ed. 2d 302, 108 S. Ct. 1803 (1988); C&A Carbone, Inc. v. Town
of Clarkstown, 511 U.S. 383, 128 L. Ed. 2d 399, 114 S. Ct. 1677
(1994).
Under both the prior and current statutory schemes,
petitioners could have applied for a permit to construct and
8 operate a facility with the capacity to accept waste from
anywhere, be it waste that originated inside or outside a local
geographic area. This court has previously stated, when
analyzing the prior statutory scheme, that "it is the applicant
who defines the intended service area, not the local decision-
making body." Metropolitan Waste Systems, Inc. v. Pollution
Control Board, 201 Ill. App. 3d 51, 55, 558 N.E.2d 785, 787
(1990). The Board ultimately found that, considering the statutory scheme which allows an entity to choose its service
area, "the slight burden the permit imposes on interstate
commerce does not outweigh the benefits that the permittees and
the Village of Bradley enjoyed when the facility was
established." We agree.
Not every exercise of state power with some impact on
interstate commerce is invalid. Edgar v. Mite Corp., 457 U.S.
624, 640, 73 L. Ed. 2d 269, 282, 102 S. Ct. 2629, 2639 (1982).
When a siting requirement applies evenhandedly, "and has only an
incidental impact on interstate commerce, the relevant inquiry is
whether or not it effects a legitimate public interest, and if
so, whether any burden on interstate commerce is 'clearly
excessive in relation to the putative local benefits.'" (Emphasis
in original.) LaFarge Corp. v. Campbell, 813 F. Supp. 501, 513
(N.D. Tex. 1993), quoting Pike v. Bruce Church, Inc., 397 U.S.
137, 142, 25 L. Ed. 2d 174, 178, 90 S. Ct. 844, 847 (1970).
9 Undoubtedly, the regulation of solid waste disposal for the
protection of public health and safety is a legitimate
governmental purpose. L&H Sanitation, Inc. v. Lake City
Sanitation, Inc., 769 F. 2d 517 (8th Cir. 1984).
The Board acts in its quasi-judicial capacity when reviewing
an Agency's decision to grant or deny a permit. Environmental
Protection Agency v. Pollution Control Board, 308 Ill. App. 3d
741, 721 N.E.2d 723 (1999). A court of review will uphold a quasi-judicial determination unless it is contrary to the
manifest weight of the evidence. Environmental Protection Agency
v. Pollution Control Board, 308 Ill. App. 3d at 748; Community
Landfill Co. v. Pollution Control Board, 331 Ill. App. 3d 1056,
772 N.E.2d 231 (2002).
Again, despite petitioners' arguments to the contrary, this
is not a case of unconstitutional economic protectionism. This
case involves a private entity that made a choice to forego the
siting process more than 12 years ago when it had that option.
That ceased to be an option days after petitioners received their
operating permit. Knowing that every pollution control facility
similar to the one petitioners seek to operate must acquire
siting approval, petitioners now effectively request that they be
grandfathered in to the new statutory scheme and allowed to
ignore the siting process. The Agency and the Board correctly
recognized that granting petitioners' request would violate the
10 Act's siting requirement. 415 ILCS 5/39(c) (West 2004).
II. Unconstitutional Vagueness of Special Condition No. 9
Petitioners contend that Special Condition No. 9 is
unconstitutionally vague and, therefore, violates their due
process rights under the United States and State of Illinois
Constitutions. Specifically, they claim that the condition fails
to "provide fair warning of what conduct is prohibited."
Special Condition No. 9 provides that: "No waste generated outside the municipal boundaries of the Village of Bradley may be
accepted at this facility." This could not be more clear.
Petitioners argue that the terms "generated" and "municipal
boundaries" are subject to so many interpretations that the
Agency can engage in "selective enforcement" depending on which
interpretation it favors. The Agency and Board counter that
petitioners have had no trouble understanding or interpreting the
condition for 10 years, which belies "any feigned confusion by
United Disposal." The Board and Agency further argue that
petitioners have waived this argument as they failed to timely
bring it.
In reply to the Agency and Board's waiver argument,
petitioners contend that the ability of the Agency "to argue
waiver was waived by the Agency when it responded [to] the
petitioners' vagueness argument in the summary judgment briefing
before the Board." Turnabout is fair play.
11 The waiver rule, of course, is a limitation on the parties
and not upon the jurisdiction of a reviewing court. Freedom Oil
Co. v. Pollution Control Board, 275 Ill. App. 3d 508, 655 N.E.2d
1184 (1995). We will address petitioners' vagueness argument.
A regulation is unconstitutionally vague and violates due
process if it leaves the community regulated unsure of what
conduct is prohibited or fails to provide adequate guidelines to
the administrative body charged with its enforcement. Smith v. Goguen, 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974).
That is not the case in this situation. As the Board notes,
petitioners had no problem deciphering the condition for 10
years. Petitioners seemed to clearly understand the terms when
they applied for a permit that did not require siting approval.
Neither the term "generated" nor the term "municipal boundaries"
is so perplexing as to leave one wondering what is prohibited.
We hold Special Condition No. 9 is not void for vagueness.
III. Denial of Application in Violation of the Act
Petitioners contend that "no violation of the Act" would
have occurred if the Agency had granted their request and as such
it was error to deny it. This contention piggybacks petitioners'
original argument that the prior statutory scheme from which
Special Condition No. 9 was created violated the commerce clause
and, as such, any restriction imposed by the state under that
scheme is void as it was based upon an unconstitutional state
12 enactment. See Papasan v. Allain, 478 U.S. 265, 92 L. Ed. 2d
209, 106 S. Ct. 2932 (1986). Petitioners continue that given the
Tennsv decision, any condition imposed under the parts of the Act
declared unconstitutional by the Tennsv court are invalid. We
disagree. As noted in part ID above, we do not find that Special
Condition No. 9 was the result of unconstitutional economic
protectionism. Clearly, granting petitioners' application
notwithstanding petitioners' failure to acquire (or even seek) siting approval would violate the Act. See 415 ILCS 5/39(c)
(West 2004).
IV. Untimely Reply to Application in Violation of Agency's Regulations
Petitioners' final contention is that their request should
have been granted by operation of law since the Agency's response
to their application was untimely. The applicable section of the
Administrative Code provides that "if the Agency fails to notify
the applicant within *** 30 days after the receipt of an
application for an operating permit [ ] that the application is
incomplete, and of the reasons, the application shall be deemed
to have been filed on the date received by the Agency." 35 Ill.
Adm. Code '807.205(f) (1985).
The Board acknowledged that the Agency issued its response
to petitioners' application 45 days after it was filed and the
response was therefore untimely. Furthermore, the Board upheld
13 the Agency's denial of "United Disposal's request as incomplete."
An administrative agency cannot ignore it's own rules once they
have been established pursuant to statutory authority. Margolin
v. Public Mutual Fire Insurance Co., 4 Ill. App. 3d 661, 281
N.E.2d 728 (1972); Panhandle Eastern Pipe Line Co. v.
Environmental Protection Agency, 314 Ill. App. 3d 296, 734 N.E.2d
18 (2000). Having failed to inform petitioners that their
application was incomplete and "of the reasons" why within the time prescribed by section 801.205(f), the Agency undoubtedly
failed to comply with its own rules.
This does not mean, however, that the application should
have automatically been granted by operation of law as
petitioners suggest. While petitioners make this claim, they
cite no authority to support it.
Given that section 40 of the Act states that "the decision
of the Board shall be based exclusively on the record before the
Agency including the record of the hearing, if any" (415 ILCS
5/40(d) (West 2004)), and the Agency's action of ignoring its own
rule which resulted in its failure to conduct a technical review
of petitioners' application, our initial inclination would be to
remand this cause to the Agency to perform a technical review of
the application as filed. That, however, is unnecessary.
There is no doubt that the Act has always required siting
approval to develop and operate the type of pollution control
14 facility sought by petitioners. See 415 ILCS 5/39(c), 39.2 (West
1992). There is also no doubt from the record that petitioners
never obtained (or even sought) proper siting approval. As such,
the only action the Agency could have taken had it performed a
technical review would have been to deny the application.
The Administrative Code states that "the Agency shall not
grant any permit *** unless the applicant submits adequate proof
that the solid waste management site *** will be developed, modified, or operated so as not to cause a violation of the Act
or the Rules." 35 Ill. Adm. Code '807.207(a) as amended by 20
Ill. Reg. 12457 (eff. August 15, 1996). Following the Agency's
denial of their application, on appeal to the Board the
petitioners needed to "establish that [granting their
application] would not result in any future violation of the
Act." Browning-Ferris Industries of Illinois, Inc. v. Pollution
Control Board, 179 Ill. App. 3d 598, 603, 534 N.E.2d 616, 620
(1989). This petitioners cannot do, as they have failed to
acquire siting approval.
CONCLUSION
For the foregoing reasons, the decision of the Illinois
Pollution Control Board is confirmed.
Confirmed.
HOLDRIDGE and McDADE, JJ., concur.