County of Kankakee v. the Ill. Pollution Control Bd.
| Decision Date | 26 January 2010 |
| Docket Number | 3–04–0285,Nos. 3–04–0271,3–04–0289.,s. 3–04–0271 |
| Citation | 396 Ill.App.3d 1000,352 Ill.Dec. 825,955 N.E.2d 1 |
| Parties | COUNTY OF KANKAKEE, Illinois, Edward D. Smith, Kankakee County State's Attorney, Waste Management of Illinois, Inc., and Byron Sandberg, Petitioners–Appellants,v.The ILLINOIS POLLUTION CONTROL BOARD, The City of Kankakee, Illinois, Town & Country Utilities, Inc., and Kankakee Regional Landfill, LLC, Respondents–Appellees. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Hinshaw & Culbertson, Rockford (Charles F. Helsten, Richard S. Porter (argued), of counsel), Chicago (Nancy G. Lischer, of counsel), John J. Boyd, State's Attorney, Kankakee, for Appellant, County of Kankakee, Illinois.Edward G. Vogt (argued), Kankakee, for Appellant, Byron Sandberg.Pedersen & Houpt, P.C., Chicago (Donald J. Moran, Kimberly S. Cornell, Lauren Blair, of counsel), for Appellant, Waste Management of Illinois, Inc.Lisa Madigan, Attorney General, Brett E. Legner, Assistant Attorney General (argued), Michael A. Scodro, Solicitor General, Chicago, for Appellee, Illinois Pollution Control Board.Mueller Anderson, P.C., George Mueller (argued), Herbolsheimer, Lannon, Henson, Duncan & Reagan, PC, Michael T. Reagan, Ottawa, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago (Eric J. Gorman, Gretchen M. Wolf, Jason T. Manning, of counsel), for Appellee, Kankakee County Regional Landfill, LLC and Town & Country Utilities, Inc.Pedersen & Houpt, Donald J. Moran, Chicago, for Appellee, Waste Management of Illinois, Inc.Leshen & Sliwinski, P.C., Kenneth A. Leshen, Power & Kick, L. Patrick Power, Blanke, Norden Barmann & Bohlen, P.C., Kankakee, for Appellee, City of Kankakee.Justice McDADE delivered the opinion of the court:
For convenience and clarity, this opinion uses the following short-form references: Town & Country Utilities, Inc. (Town & Country); Town & Country and Kankakee Regional Landfill, LLC, collectively (Applicants); the County of Kankakee, Illinois (County); Waste Management of Illinois, Inc. (Waste Management); Byron Sandberg (Sandberg); the County, Waste Management, and Sandberg collectively (Objectors); the City of Kankakee, Illinois (City); the city council of the City of Kankakee (City Council or Council); the Illinois Pollution Control Board (Board); and the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et. seq. (West 2004)).
Following an unsuccessful request, Applicants filed a second request seeking local siting approval for a proposed landfill within the City. A lengthy hearing ensued, whereupon the City Council approved the request. Objectors petitioned for review before the Board, which upheld the City Council's decision. Objectors then filed the instant appeal challenging the approval of Applicants' second request on several grounds.
RELEVANT STATUTORY PROVISIONS
Subsection 39(c) of the Act declares that “no permit for the development or construction of a new pollution control facility may be granted by the [Environmental Protection] Agency unless the applicant submits proof to the Agency that the location of the facility has been approved by the * * * governing body of the municipality * * * in which the facility is to be located in accordance with Section 39.2 of this Act.” 415 ILCS 5/39(c)(West 2004). In relevant part, section 39.2 reads:
“(a) The * * * governing body of the municipality * * * shall approve or disapprove the request for local siting approval for each pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:
* * *
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
* * *
(iv) * * * (B) for a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100–year floodplain * * *;
* * *
(viii) if the facility is to be located in a county where the county board has adopted a solid waste management plan consistent with the planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan[.] * * *
* * *
(b) No later than 14 days before the date on which the * * * governing body of the municipality receives a request for site approval, the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of the County in which such facility is to be located * * *.
* * *
Such notice shall state the name and address of the applicant, the location of the proposed site, the nature and size of the development, the nature of the activity proposed, the probable life of the proposed activity, the date when the request for site approval will be submitted, and a description of the right of persons to comment on such request as hereafter provided.
(c) An applicant shall file a copy of its request with the * * * governing body of the municipality in which the proposed site is located. The request shall include (i) the substance of the applicant's proposal and (ii) all documents, if any, submitted as of that date to the [Environmental Protection] Agency pertaining to the proposed facility, except trade secrets as determined under Section 7.1 of this Act. All such documents or other materials on file with the * * * governing body of the municipality shall be made available for public inspection at the office of the * * * governing body of the municipality and may be copied upon payment of the actual cost of reproduction.
Any person may file written comment with the * * * governing body of the municipality concerning the appropriateness of the proposed site for its intended purpose. The * * * governing body of the municipality shall consider any comment received or postmarked not later than 30 days after the date of the last public hearing.
* * *
(m) An applicant may not file a request for local siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a) of this Section within the preceding 2 years.” 415 ILCS 5/39.2(a)(ii), (a)(iv), (a)(viii), (b), (c), (m) (West 2004).
If the governing body of a municipality grants a request for local siting approval, a third party may petition the Board for a hearing to contest the decision, “such hearing to be based exclusively on the record before * * * the governing body of the municipality.” 415 ILCS 5/40.1(b) (West 2004). In making its determination, “the Board shall include in its consideration * * * the fundamental fairness of the procedures used by the * * * governing body of the municipality.” 415 ILCS 5/40.1(a) (West 2004).
PROCEDURAL FACTS
On March 13, 2002, Applicants filed a request with the City for local siting approval of a proposed landfill. Objectors opposed the request, but the City Council approved it after conducting a multi-day hearing. Objectors then petitioned for review before the Board, which reversed the City Council's decision. Specifically, the Board concluded that the Council erred in finding that the proposed landfill met the criterion in subsection 39.2(a)(ii) of the Act (415 ILCS 5/39.2(a)(ii) (West 2002) ()).
Applicants appealed to this Court ( Town & Country Utilities, Inc. v. Pollution Control Board, No. 3-03-0025, 359 Ill.App.3d 1213, 328 Ill.Dec. 738, 904 N.E.2d 1248 (unpublished order under Supreme Court Rule 23)) ( Town & Country I), and we reistated the City Council's decision. The County and Board then appealed to the Illinois Supreme Court, which held that: (1) the decision to be reviewed was the decision issued by the Board, not the Council; and (2) the Board's decision was not against the manifest weight of the evidence. Town & Country Utilities, Inc. v. Pollution Control Board, 225 Ill. 2d 103, 122, 310 Ill.Dec. 416, 866 N.E.2d 227 (2007). Accordingly, the Board's decision was reinstated and Applicants' 2002 siting request failed.
On March 7, 2003, before their appeal to this court in Town & Country I, Applicants filed a new request with the City for siting approval of a proposed landfill at the same location described in their 2002 request. Waste Management moved to dismiss the new request, arguing that it was barred by subsection 39.2(m) of the Act. See 415 ILCS 5/39.2(m) (West 2004) (). The City Council denied the motion to dismiss, finding that the two requests were not substantially similar and that the 2002 request had not been disapproved within the meaning of subsection 39.2(m) because the local siting authority, the Council, had approved it despite the Board's subsequent reversal.
On the merits, the City Council granted Applicants' 2003 request. Objectors petitioned for review before the Board, raising claims similar to those made against the 2002 request. This time, however, the Board confirmed the Council's decision. As to the denial of Waste Management's motion to dismiss, the Board found that subsection 39.2(m) was inapplicable for the same reason articulated by the City Council: Applicants' 2002 request had not been disapproved within the meaning of the statute because the local siting authority, the Council, approved it. Since this...
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