United Disposal of Bradley Inc. v. Pollution Control Board ( 2006 )


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  •                             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 appeal.
    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.
    15