United Disposal of Bradley, Inc. v. Bd.

Citation842 N.E.2d 1161
Decision Date13 January 2006
Docket NumberNo. 3-04-0536.,3-04-0536.
CourtUnited States Appellate Court of Illinois
PartiesUNITED DISPOSAL OF BRADLEY, INC. and Municipal Trust & Savings Bank as Trustee under Trust 0799, Petitioners-Appellants, v. The POLLUTION CONTROL BOARD and The Environmental Protection Agency, Respondents-Appellees.

David E. Neumeister, Jennifer J. Sackett Pohlenz (argued), Erin Keane, Querrey & Harrow, Ltd., Chicago, Claire Manning, Posegate & Denes, P.C., Springfield, for United Disposal of Bradley, Inc.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Diane M. Potts, Assistant Attorney General (argued), Chicago, for Illinois Pollution Control 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 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 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).

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 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 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, 98 S.Ct. 2531, 57 L.Ed.2d 475 (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, 112 S.Ct. 2009, 119 L.Ed.2d 121 (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 Environmental Quality of the State of Oregon, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (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...

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