Envirite Corp. v. Pollution Control Bd.

• Decision Date: 08 January 1993
• Docket Number: No. 3-92-0202,3-92-0202
• Citation: 239 Ill.App.3d 1004,607 N.E.2d 302,180 Ill.Dec. 408
• Parties: , 180 Ill.Dec. 408 ENVIRITE CORPORATION, a Pennsylvania Corporation, Appellant, v. The POLLUTION CONTROL BOARD; The Environmental Protection Agency; and Peoria Disposal Company, a Nevada Corporation, Appellees.
• Court: United States Appellate Court of Illinois

Page 302

607 N.E.2d 302

239 Ill.App.3d 1004, 180 Ill.Dec. 408

ENVIRITE CORPORATION, a Pennsylvania Corporation, Appellant, v. The POLLUTION CONTROL BOARD; The Environmental Protection Agency; and Peoria Disposal Company, a Nevada Corporation, Appellees.

No. 3-92-0202.

Appellate Court of Illinois Third District.

Jan. 8, 1993.

Fred C. Prillaman, Springfield, Stephen F. Hedinger (argued), Mohan, Alewelt, Prillaman & Adami, Springfield, for Envirite Corp.

Alison E. O'Hara (argued), Asst. Atty. Gen., Civ. Appeals Div., Chicago, for Pollution Control Bd. and EPA.

Robin R. Lunn, Michael O'Neil (argued), Keck, Mahin & Cate, Chicago, Brian J. Meginnes (argued), Keck, Mahin & Cate, Peoria, for Peoria Disposal Co., Inc.

Justice BARRY delivered the OPINION of the court.

Complainant-appellant Envirite Corporation (Envirite) is the operator of a hazardous waste treatment facility in Cook County, Illinois. One of the respondent-appellees is Peoria Disposal Company (PDC), a company that operates a hazardous waste treatment facility in Peoria County. On August 23, 1991, Envirite filed its complaint against PDC and the Illinois Environmental Protection Agency (the Agency) with the Pollution Control Board (the Board) alleging violations of the Illinois Environmental Protection Act (IEPA). On December 19, 1991, the Board entered its decision granting summary judgment to PDC and dismissing plaintiff's cause of action against the Agency. Plaintiff brings this appeal directly to the appellate court pursuant to Supreme Court Rule 335 (107 Ill.2d R. 335) and section 41 of the IEPA (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1041). For reasons that follow, we affirm in part, reverse in part and remand this cause for further consideration.

According to the complaint in the record before us both Envirite and PDC accept for treatment various hazardous wastes which are assigned codes by the United States Environmental Protection Act. For purposes of this appeal, we need identify only one such waste--F006--which is described as "wastewater treatment sludges from electroplating operations" containing cadmium, chromium and nickel. Envirite alleges, and it is not contested, that its treatment process is capable of neutralizing the F006 waste so as to render it non-hazardous, or "delisted" for purposes of the IEPA, before it is deposited in a nonhazardous waste landfill. By contrast, PDC alleges that its treatment process combines F006 wastes with other wastes and subjects them to a proprietary chemical stabilization process resulting in an end-waste that remains a "listed" F006 hazardous waste product, but for which the ability to leach is substantially inhibited. PDC has obtained authorization from the Illinois Environment Protection Agency (the Agency) to dispose its "stabilized" residue in its own hazardous waste landfill until November 4, 1997. This authorization is required pursuant to section 39(h) of the IEPA for "generators" of hazardous waste. Ill.Rev.Stat.1989, ch. 111 1/2, par. 1039(h).

Production Plated Plastics is a Michigan industrial company which produces F006 hazardous waste in its electroplating operation. The company has not obtained section 39(h) authorization from the Agency. The complaint alleges that PDC has been accepting Production Plated Plastics' hazardous waste for treatment and disposal since March, 1989. Envirite charges that PDC's acceptance, treatment and disposal of Production Plated Plastics' out-of-state waste violates section 21(e) of the IEPA (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1021(e)) because of Production Plated Plastics' failure to first obtain section 39(h) authorization. Envirite alleges that since June 15, 1991, it has made various requests of the Agency to take action against PDC for violations of the IEPA, but that the Agency has not issued a formal complaint against PDC as allegedly required by sections 30 and 31(a) of the IEPA (Ill.Rev.Stat.1989, ch. 111 1/2, pars. 1030 and 1031(a)).

Envirite's complaint against PDC and the Agency was filed before the Pollution Control Board on grounds that PDC was guilty of disposing hazardous wastes in its landfill in violation of sections 39(h) and 21(e) of the IEPA, and that the Agency was guilty of administrative nonfeasance in violation of sections 30 and 31(a) of the IEPA by failing to abate PDC's practice. Both PDC and the Agency moved for dismissal or for summary judgment and filed supporting documentation. Envirite responded to the motions, and moved for summary judgment in its favor. PDC and the Agency filed a consolidated response to Envirite's motion for summary relief. Envirite then moved to strike or to reply to PDC and the Agency's joint response.

After all parties had briefed their positions, the Pollution Control Board issued its decision on all pending matters. The Board denied Envirite's motion to strike or to reply to the joint response of the PDC and the Agency, granted the Agency's motion to dismiss, denied PDC's motion to dismiss, granted PDC's motion for summary judgment, and denied Envirite's motion for summary judgment. Specifically, the Board found that the IEPA does not permit the Board to direct the Agency's course of conduct; that "based upon these undisputed facts" Production Plated Plastics is not a "generator" for purposes of section 39(h) of the IEPA; and that as a matter of law PDC is both a "generator" and the owner/operator of its disposal site for purposes of section 39(h).

In this appeal, Envirite takes issue with: 1) the Board's holding that Production Plated Plastics and other hazardous waste producers/ customers of PDC's services are not required to obtain section 39(h) authorization for disposal of its hazardous waste in Illinois; 2) the Board's ruling that the Agency is not subject to enforcement proceedings before the Board; and 3) the Board's denial of Envirite's motion to reply to the joint response of the Agency and PDC to Envirite's motion for summary judgment.

Section 39(h) of the IEPA provides:

"Commencing January 1, 1987, a hazardous waste stream may not be deposited in a permitted hazardous waste site unless specific authorization is obtained from the Agency by the generator and the disposal site owner and operator for the deposit of that specific hazardous waste stream. The Agency may grant specific authorization for disposal of hazardous waste streams only after the generator has reasonably demonstrated that, considering technological feasibility and economic reasonableness, the hazardous waste cannot be reasonably recycled so as to neutralize the hazardous waste and render it nonhazardous. In granting authorization under this Section, the Agency may impose such conditions as may be necessary to accomplish the purposes of the Act and are consistent with this Act and regulations promulgated by the Board hereunder. If the Agency refuses to grant authorization under this Section, the applicant may appeal as if the Agency refused to grant a permit, pursuant to the provisions of subsection (a) of section 40 of this Act." (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1039(h).)

The Act defines "generator" as "any person whose act or process produces hazardous waste." Ill.Rev.Stat.1989, ch. 111 1/2, par. 1003.12.

PDC, the Agency and the Board all reason that the original producers of hazardous waste are not "generators" as that term is used in the Act because of PDC's intervening treatment of its customers' hazardous waste prior to depositing it in PDC's landfill. Thus, these parties reason, since it is only PDC, the treatment facility, which ultimately disposes of the material in a waste site, PDC is the sole "generator" of such hazardous waste. Envirite argues that defendants erroneously focus on section 39(h)'s reference to a "hazardous waste stream," and that their interpretation of the term "generator" defies the clear intent of the Act. We agree.

Because statutory interpretation requires us to ascertain the true intent of the legislature, we find guidance in legislative debates pertaining to the proposed legislation. In this case, Representative Hannig's remarks at the third reading of Senate Bill 171 on June 17, 1981, are noteworthy:

"This Bill, as amended [S.B. 171, adding subparagraph (h) to section 1039 of the Act, and which was passed by both houses and enacted into law effective July 1, 1982 as P.A. 82-572] provides that the Illinois Environmental Protection Agency can demonstrate that when a hazardous waste flow can be recycled, incinerated or chemically or otherwise disposed of, that those wastes could not be buried.

Now, the theory behind this concept is that burying hazardous wastes is probably the worst way to dispose of them and in those cases where it can be documented that reasonable methods of disposal are available then burying should be prohibited."

(3rd ...