ESG Watts, Inc. v. Pollution Control Bd., 3-91-0384

• Decision Date: 31 January 1992
• Docket Number: No. 3-91-0384,3-91-0384
• Citation: 224 Ill.App.3d 600,586 N.E.2d 1323
• Parties: , 167 Ill.Dec. 51 ESG WATTS, INC., Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Illinois Environmental Protection Agency, and the People of the State of Illinois, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1323

586 N.E.2d 1323

224 Ill.App.3d 600, 167 Ill.Dec. 51

ESG WATTS, INC., Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Illinois Environmental Protection Agency, and the People of the State of Illinois Respondents-Appellees.

No. 3-91-0384.

Appellate Court of Illinois Third District.

Jan. 31, 1992.

Kevin T. McClain (argued), Immel, Zelle, Ogren, McClain & Costello, Springfield, for ESG Watts, Inc.

Jan E. Hughes (argued), Asst. Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago, for Pollution Control Bd. and the People.

Justice HAASE delivered the opinion of the Court.

The petitioner, ESG Watts, Inc., filed an application to construct an industrial waste storage and treatment facility under part B of the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) (RCRA). The Illinois Environmental Protection Agency (IEPA) denied the permit and Watts appealed the decision to the Illinois Pollution Control Board (Board). The Board affirmed the IEPA's denial of the permit. Watts appeals from that decision.

On February 11, 1987, Watts, a subsidiary of Watts Trucking Services, Inc., filed applications for a part B RCRA permit and a NPDES permit with the IEPA to construct a facility in Rock Island, Illinois for the storage and treatment of hazardous waste. The proposed facility would store and treat hazardous wastes that are water based or aqueous in nature such as wastes containing heavy metals, dichromate, cyanide, sulfide, oil, and solvent residues. The complex would be designed to treat and discharge 100,000 gallons of wastewater per day.

Watts' application for the RCRA permit indicated that the treated wastewater was to be discharged into the City of Rock Island's storm sewer system, and from there it eventually would be discharged into the Mississippi River. On August 12, 1988, the IEPA issued a tentative draft RCRA permit. At that time, the IEPA informed Watts that it would issue a final decision on the permit after a public comment period.

In November 1988, Watts' consulting engineer notified the IEPA that Watts had changed its planned method of disposal. The engineer indicated that the original method of disposal (discharging the wastewater into the City's storm sewer) was not feasible since the storm sewer system was interconnected with the sanitary sewer system. Watts noted that it was therefore going to pursue plans for routing the discharge through a private pipeline into the Mississippi River. This method, however, required an easement from the City of Rock Island to extend the pipeline under a city street.

On December 19, 1988, the City expressed an intent to deny Watts' request for an easement to discharge the treated wastewater. On September 6, 1989, the IEPA asked Watts whether it wished to pursue the permit, and, if so, to provide information regarding: (1) the status of its effort to obtain the easement; (2) the other options available for discharge; and (3) the date when it planned to make a final decision on its proposal. After obtaining two extensions of time to respond, Watts replied that it had been "dragging its feet", but still wished to pursue the permit. Watts further stated that it hoped to be issued a permit that would allow it to "truck the water from the facility or use direct discharge, leaving both options open."

On February 9, 1990, the IEPA wrote Watts requesting that it provide information on the final disposition of the wastewater generated by the treatment facility. In the letter, the IEPA also stated if Watts did not respond within 30 days with the requested information, the IEPA might deny the permit.

Watts submitted written responses on March 9 and March 30, 1990. Thereupon, Watts informed the IEPA that arrangements for discharge still had not been made. Watts also stated that it did not feel that the lack of the resolution of the discharge method should affect the approval process for the permit.

On March 29, 1990, Watts formally petitioned the City for an easement and that request was denied. On June 29, 1990, the IEPA denied the petitioner's request for the part B RCRA permit. The denial letter stated the following "The permit is denied because the application has been deemed to be incomplete, on the grounds that the applicant has not demonstrated there is an acceptable means to dispose of the treatment plant wastewater. The disposition of the treated wastewater has significant potential to cause environmental damage if disposed of improperly and is an integral part of being able to provide a service as a hazardous waste treatment facility. The Agency does not feel that issuance of a permit without a feasible discharge point, is protective of the environment. Without a feasible discharge point, the facility operations could result in the indefinite storage of wastes at the site if the company was unable to resolve its problem."

Thereafter, Watts filed an appeal with the Board. Following a hearing, the Board affirmed the IEPA's denial of Watts' permit request. Watts appeals from that decision.

Watts first argues on appeal that the IEPA failed to deny the permit within the statutory review period set forth in section 39(a) of the Environmental Protection Act (Act) (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1039(a)). It further contends that the effect of such inaction is that the permit is deemed issued.

In response, the respondents argue that the statutory time limitation is not applicable to RCRA permits and that even if it is, Watts waived the issue by failing to raise it previously.

We agree with the respondents that the time limitation set forth in section 39(a) of the Act does not apply to RCRA permits. A request for a RCRA permit is a more complicated procedure and is governed exclusively by section 39(d) of the Act (Ill.Rev.Stat.1989, ch. 111 1/2,...