Village of Carpentersville v. Pollution Control Bd.

• Decision Date: 23 November 1988
• Docket Number: No. 2-88-0049,2-88-0049
• Citation: 126 Ill.Dec. 105,176 Ill.App.3d 668,531 N.E.2d 400
• Parties: , 126 Ill.Dec. 105 The VILLAGE OF CARPENTERSVILLE, Appellant and Cross-Appellee, v. The POLLUTION CONTROL BOARD et al., Appellees and Cross-Appellees (Cargill, Inc., Appellee and Cross-Appellant).
• Court: United States Appellate Court of Illinois

Page 400

531 N.E.2d 400

176 Ill.App.3d 668, 126 Ill.Dec. 105

The VILLAGE OF CARPENTERSVILLE, Appellant and Cross-Appellee, v. The POLLUTION CONTROL BOARD et al., Appellees and Cross-Appellees (Cargill, Inc., Appellee and Cross-Appellant).

No. 2-88-0049.

Appellate Court of Illinois Second District.

Nov. 23, 1988.

Bernard Z. Paul, DeKalb, for Village of carpentersville.

Dorothy M. Gunn, Illinois Pollution Control Bd., Chicago, John M. Vandlik, Sp. Counsel, Illinois Pollution Control Bd., Urbana, Illinois Environmental Protection Agency, Mary Drake, Maywood, for Illinois Pollution Control Bd.

Neil F. Hartigan, Atty. Gen., Chicago, Robert J. Ruiz, Sol. Gen., Joseph M. Claps, Chief Trial Div., Michelle D. Jordan, Deputy Chief Trial Div., Gerald T. Karr (argued), Environmental Control Div., for Illinois Environmental Control.

Mayer, Brown & Platt, Chicago, Percy L. Angelo (argued), Vincent O. Oleszkiewicz, James R. MacAyeal, for Cargill, Inc.

Justice WOODWARD delivered the opinion of the court:

Petitioner, Village of Carpentersville (Village), brings this petition for review from a decision of the Illinois Pollution Control Board (Board), which declared a portion of the Village's zoning ordinance preempted by a condition in a permit issued by the Illinois Environmental Protection Agency (Agency) to Cargill, Inc. (Cargill). Cargill brings a cross-appeal challenging the necessity of the requirement imposed by the Agency as a condition of the permit.

The Village raises several issues on appeal. However, we find we need only address one, to wit, whether the Village's zoning ordinance is preempted by the condition in the construction permit issue by the Agency.

Cargill's plant, located in the older section of the Village, manufacturers resins for the paint and coating industry. The plant is zoned M-2 industrial. As part of the manufacturing process, a waste known as "water of reaction" is generated. This waste is a hazardous waste which must be disposed of in accordance with Federal and State environmental regulations. The waste is disposed of in a liquid waste incinerator.

In late 1985, due to complaints of odors, Cargill undertook steps to identify and control any odors that might be emanating from the plant. Around March 1986, the Agency requested that Cargill temporarily shut down its liquid waste incinerator pending construction of certain proposed improvements or modifications. As a result, Cargill has transported the waste to an off-site disposal facility. In addition to being expensive ($60,000 to $70,000 per month), Cargill maintained that the transfers could be a possible source of odors.

In February 1987, Cargill requested a construction permit from the Agency to make certain modifications to the existing incinerator. The permit was issued but was subject to certain conditions imposed by the Agency. Cargill and the Agency reached agreement on all but one condition, which is as follows:

"The height of the incinerator discharge stack shall be raised to 100 feet above the grade. The incinerator shakedown and emission testing may be performed with the existing short stack; however, incinerator operation will not be allowed until the stack has been raised to the specified 100 feet."

At the public hearing held on October 5, 1987, the Agency presented testimony that since the present stack was only 25 feet above the grade level, there was a possibility of exacerbating the existing odor problem due to the operation of the incinerator. The Agency therefore required that the stack be raised to 100 feet. The 100-foot level was arrived at by applying the general engineering rule of thumb that requires that the height of a stack be 2 1/2 times above the height of the nearest obstruction in order to avoid any undue aerodynamic influence on the discharge from that stack. There was also the possibility of hazardous discharge if the incinerator were to malfunction.

Cargill, on the other hand, maintained that the Agency did not identify its incinerator as a source of the odor problem. Moreover, the incinerator was equipped with a monitoring device and would automatically shut down in the event of a malfunction. Nevertheless, Cargill was willing to comply with the aforesaid condition in the event it was not prevented from doing so by the Village's zoning restriction which limited buildings to a height of 35 feet.

Following the hearing, Cargill and the Agency filed written briefs on the issues. While Cargill argued against the imposition of condition of raising the stack to 100 feet, it also maintained that the Village's zoning ordinance was preempted by the Agency's permit condition. The Agency agreed with the latter contention.

On December 17, 1987, the Board, with one member dissenting, issued an order adopting the parties' preemption argument and held that the issuance of the permit superseded the effect of the ordinance. As part of the order and pursuant to section 41 of the Environmental Protection Act (Act) (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1041), the Village, a non-home-rule entity, was added as a "party adversely effected by a final order or determination of the Board." This appeal and cross-appeal followed.

The dispositive issue here is whether the Village's zoning ordinance is preempted by the condition set forth in the permit issued by the Agency. We agree with the Village that there is no preemption in this case.

Section 39(c) of the Act states in pertinent part as follows:

"Except for those facilities owned or operated by sanitary districts organized under 'An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers', approved May 29, 1889, as now or hereafter amended, and except for new regional pollution control facilities governed by Section 39 2, and except for fossil fuel mining facilities, the granting of a permit under this Act shall not relieve the applicant from meeting and securing all necessary zoning approvals from the unit of government having zoning jurisdiction over the proposed facility." (Emphasis added.) Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039(c).

In determining that the Village's zoning ordinance was preempted by the condition set forth in the permit, the Board relied on our supreme court's decision in County of Kendall v. Avery Gravel Co. (1984), 101 Ill.2d 428, 79 Ill.Dec. 169, 463 N.E.2d 723. In that case, the court, after analyzing several prior cases, determined that the Agency's regulation preempted a non-home-rule unit of government's zoning ordinance. One of the cases cited favorably by the supreme court was County of McHenry v. Sternaman (1978), 63 Ill.App.3d 679, 20 Ill.Dec. 562, 380 N.E.2d 540, in which this court held that the Agency regulations superseded county zoning ordinances relating to the operation of a gravel pit.

We are of the opinion that the supreme court's decision in County of Kendall does not control our decision in the case at bar. In that case, the county argued that recent amendments to section 2 of the Surface-Mined Land Conservation and Reclamation Act (Ill.Rev.Stat.1981, ch. 96 1/2, par. 4502) and section 39 of the Environmental Protection Act (Ill.Rev.Stat.1981, ch. 111 1/2, par. 1039) provided that permits to engage in strip-mining of other than fossil fuels did not relieve the permit holder from complying with local laws regulating the commencement, location or operation of surface mining facilities. In rejecting that...