Medical Disposal Services, Inc. v. E.P.A.
| Decision Date | 18 September 1996 |
| Docket Number | 1-95-2908,Nos. 1-95-2892,s. 1-95-2892 |
| Citation | 677 N.E.2d 428,286 Ill.App.3d 562,222 Ill.Dec. 225 |
| Parties | , 222 Ill.Dec. 225 MEDICAL DISPOSAL SERVICES, INC., and Industrial Fuels and Resources/Illinois, Inc., Petitioners-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY and The Pollution Control Board, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
Chuhak & Tecson, P.C., Chicago, IL, for Petitioner-Appellant Medical Disposal Services, Inc.; Donald J. Russ, Jr., Alan R. Dolinko, Thomas F. Bennington, Jr., of counsel.
Gessler, Hughes & Socol, Ltd., Chicago, IL, for Industrial Fuels & Resources/Illinois, Inc.; Mark A. LaRose, Michael J. Klein, of counsel.
Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Springfield, IL, for National Solid Wastes Management Association, Illinois Chapter; James M. Morphew, Charles J. Northrup, of counsel.
James E. Ryan, Attorney General--State of Illinois, Barbara A. Preiner, Solicitor General, Chicago, IL, for Respondents--Illinois Pollution Control Board and Illinois Environmental Protection Agency, Susan Frederick Rhodes, Assistant Attorney General, of counsel.
MODIFIED ON DENIAL OF REHEARING
Petitioners, Medical Disposal Services, Inc., an Illinois corporation (MDS), and Industrial Fuels and Resources/Illinois, Inc., an Illinois corporation (Industrial Fuels), appeal from the denial of permits by respondents, the Pollution Control Board (the Board) and the Environmental Protection Agency (the Agency), for MDS to construct a medical-waste-treatment facility. Petitioners argue on appeal that (1) the Board erred in granting summary judgment in favor of the Agency because local siting approvals of pollution-control facilities are transferable to purchasers; (2) the Board should have applied equitable estoppel or equitable tolling; and (3) the Board erred in denying Industrial Fuels's petition for intervention. We affirm.
The main issue in this case is whether a municipality's siting approval of a pollution-control facility under section 39.2(a) of the Environmental Protection Act (415 ILCS 5/39.2(a) (West Supp.1995)) is transferable to a subsequent owner on the basis that siting approval is location specific and not applicant specific. In other words, can a person other than the original siting applicant seek a developmental permit for a new pollution control facility?
In 1989 Industrial Fuels petitioned the City of Harvey, Illinois, for approval of the construction of a medical-waste-treatment facility, pursuant to a statutory provision giving localities the right to approve the siting of pollution-control facilities. Harvey denied the siting application in 1990, and Industrial Fuels appealed to the Board. The Board affirmed the denial, but this court reversed (Industrial Fuels & Resources/Illinois, Inc. v. Pollution Control Board, 227 Ill.App.3d 533, 169 Ill.Dec. 661, 592 N.E.2d 148 (1992)).
In 1994 MDS entered into an agreement giving it an option to purchase the Harvey site from Industrial Fuels. MDS had earlier inquired of the Environmental Protection Agency whether MDS could rely on the siting approval that Industrial Fuels had obtained from Harvey. An assistant counsel for the Agency responded in a letter dated January 10, 1994, that, consistent with previous interpretations in similar situations, the Agency's policy remained that siting approval was location specific so that it remained with land upon sale. The letter also stated that the siting approval granted to Industrial Fuels was valid for MDS's development of the facility.
In May 1994 MDS submitted applications to the Agency for permits to construct the facility. In September the Illinois Attorney General's office wrote to MDS that Harvey had not granted local siting approval to MDS. In October the Illinois Attorney General's office wrote a letter to the general counsel for the Agency that its view was that local siting approval was "not only site-specific, but also facility-specific and applicant-specific." On January 13, 1995, the Director of the Agency wrote to the Attorney General that the two agencies had differing interpretations of the siting approval law, but on January 31 the Agency denied MDS's permit applications.
In March 1995, MDS appealed to the Pollution Control Board, and it argued that permits could be issued pursuant to section 39(c) of the Environmental Protection Act (415 ILCS 5/39(c) (West 1994)) (the Act), on the basis that the Act required proof to the Agency only that the municipality approved the location of the facility and did not require that the municipality approve the transfer of ownership. MDS filed a motion for summary judgment, and the Agency filed a cross-motion for summary judgment.
On May 4, 1995, the Board denied MDS's motion for summary judgment and granted the Agency's cross-motion for summary judgment. The Board's order found that local siting approval could not be transferred from Industrial Fuels to MDS because siting approval was applicant specific.
On June 8, 1995, Industrial Fuels petitioned to intervene. The Board denied Industrial Fuels's petition because it was filed after the Board's final decision was issued. The Board accepted from Industrial Fuels, as an amicus curiae brief, a memorandum of law in support of MDS's motion for reconsideration. The Board denied MDS's motion for reconsideration.
Petitioners first argue on appeal that local siting approval of a pollution-control facility under section 39.2(a) of the Act (415 ILCS 5/39.2(a) (West Supp.1995)) is transferable to a new owner because siting approval is only location specific.
Decisions of the Board are reviewed in accordance with the administrative review law. 415 ILCS 5/41(a) (West 1994). The review extends to all questions of law and fact presented by the entire record. 735 ILCS 5/3-110 (West 1994). If the determination of the Board does not involve any factual disputes, and if the case involves solely a question of law, the court is to accord some deference to the agency's interpretation of the Act, but its interpretation is not binding on the court and the court will not uphold erroneous interpretations. National Environmental Services Corp. v. Pollution Control Board, 212 Ill.App.3d 109, 112, 156 Ill.Dec. 523, 570 N.E.2d 1245 (1991); City of Decatur v. American Federation of State, County & Municipal Employees, Local 268, 122 Ill.2d 353, 361, 119 Ill.Dec. 360, 522 N.E.2d 1219 (1988).
Section 39(c) of the Act provides in relevant part:
"[N]o permit for the development or construction of a new pollution control facility may be granted by the Agency unless the applicant submits proof to the Agency that the location of the facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located in accordance with Section 39.2 of this Act." 415 ILCS 5/39(c) (West 1994).
Section 39.2(a) provides:
"The county board of the county or 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:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows (vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;
(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; and
(ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.
The county board or the governing body of the municipality may also consider as evidence the previous operating experience and past record of convictions or admissions of violations of the applicant (and any subsidiary or parent corporation) in the field of solid waste management when considering criteria (ii) and (v) under this Section." 415 ILCS 5/39.2(a) (West Supp.1995).
The transferability issue was touched upon by the Board in Christian County Landfill, Inc. v. Christian County Board, Ill. Pollution Control Bd.Op. 89--92 (October 18, 1989). Petitioner landfill company appealed from respondent county board's decision that imposed as a condition, for the approval of the application for the landfill expansion, that any buyer or subsequent owner of the landfill company request the approval of the county board for use of the site.
Christian County analyzed section 39.2(e) of the Act,...
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