Village of Carpentersville v. Pollution Control Bd.

Citation553 N.E.2d 362,142 Ill.Dec. 848,135 Ill.2d 463
Decision Date29 March 1990
Docket NumberNo. 68074,68074
Parties, 142 Ill.Dec. 848 The VILLAGE OF CARPENTERSVILLE, Appellee, v. The POLLUTION CONTROL BOARD et al., Appellees (Cargill, Inc., Appellant).
CourtSupreme Court of Illinois

Percy L. Angelo and James R. MacAyeal, Chicago (Mayer, Brown & Platt, of counsel), for appellant.

Bernard Z. Paul, De Kalb, for appellee Village of Carpentersville.

Robert W. Mueller and Katherine D. Hodge, Springfield, for amicus curiae Illinois Environmental Regulatory Group, Inc.

Justice CLARK delivered the opinion of the court:

At the core of this appeal is the question of whether a village zoning ordinance is preempted by a requirement set forth in a permit issued by the Environmental Protection Agency (Agency) under the provisions of the Environmental Protection Act (the Act) (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1001 et seq.). The Village of Carpentersville (the Village) appealed a determination of the Illinois Pollution Control Board (Board) that held a height restriction in the Village's zoning ordinance was preempted by the provisions of the Act. The appellate court reversed (176 Ill.App.3d 668, 126 Ill.Dec. 105, 531 N.E.2d 400), finding no preemption of the zoning ordinance. We granted Cargill's petition for leave to appeal (107 Ill.2d R. 315). For the reasons stated herein, we affirm.

Cargill manufactures resins for the paint and coating industry at its plant located in an M-2 industrial zone of the Village of Carpentersville. A by-product of Cargill's manufacturing process is a hazardous waste known as "water of reaction." Cargill has disposed of this hazardous waste on site by utilizing a liquid-waste incinerator; disposal has been in accordance with Federal and State environmental regulations.

Following numerous complaints from local residents about noxious odors and in cooperation with the Agency, Cargill voluntarily undertook an extensive program in 1985 to identify and control possible sources of odors allegedly emanating from its plant. During March 1986 the Agency made several suggestions to Cargill regarding odor abatement. One of the Agency's suggestions which was followed by Cargill was to temporarily shut down the liquid-waste incinerator pending implementation of certain proposed improvements and modifications. The Agency issued Cargill a permit to make the modifications, but imposed several special conditions. Accord was reached on all conditions except special condition nine, which provided:

"The height of the incinerator discharge stack shall be raised to 100 feet above 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."

Cargill attempted to obtain a variance from the Village for a 100-foot stack. The Village, however, refused to grant one. Cargill then filed an appeal with the Board contesting the Agency's condition nine or, in the alternative, proposing that the Village's height restrictions were preempted. The Agency asserted that its condition nine was necessary but agreed with Cargill that the Village's zoning ordinance was preempted. The Board issued its opinion and order in December 1987, finding that the Village of Carpentersville's zoning ordinance limiting the height of structures to 35 feet was preempted by the Act. The order additionally joined the Village of Carpentersville as a party to the proceeding. One member of the Board dissented. The dissent focused on two points: (1) that pursuant to section 39(c) of the Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039(c)), "the grant of an Agency permit does not exempt an applicant from meeting and securing all necessary zoning approvals"; and (2) that the Board does not have authority to declare a local ordinance preempted. Cargill, Inc. v. Environmental Protection Agency (1987), 84 PCB Op. 649.

Pursuant to section 41 of the Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1041), the Village of Carpentersville appealed the Board's decision. The appellate court, relying on the "plain and unambiguous" language of the Act, held that "the issuance of a permit by the Agency does not excuse a permit holder from complying with local zoning ordinances. The Village's ordinance is not preempted * * *." (176 Ill.App.3d at 672, 126 Ill.Dec. 105, 531 N.E.2d 400.) Section 39(c) of the Act, on which the appellate court relied, 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." Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039(c).

Before our court, Cargill raises seven issues for review: (1) whether the Act preempts a non-home-rule unit of government from regulating air pollution through use of a zoning ordinance; (2) whether amendment of section 39(c) of the Act was intended to overrule established court precedent; (3) whether, assuming arguendo that a non-home-rule unit of government may regulate air pollution under its zoning ordinance, such regulation must nonetheless complement or conform to and not conflict with the State's uniform statewide program of environmental regulation; (4) whether the amendment to section 39(c) of the Act is unconstitutional based on inconsistency with the Illinois Constitution; (5) whether a height restriction is an exercise of zoning powers which falls within the Act's language regarding zoning approvals; (6) whether section 39(c), as interpreted by the appellate court, involves an unconstitutional denial of due process and equal protection and an improper taking of property without compensation; and (7) whether the appellate court's interpretation of the Act conflicts with the Federal Clean Air Act and the federally approved State implementation plan.

Cargill, citing this court's decisions in County of Kendall v. Avery Gravel Co. (1984), 101 Ill.2d 428, 79 Ill.Dec. 169, 463 N.E.2d 723, County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 27 Ill.Dec. 489, 389 N.E.2d 553, Carlson v. Village of Worth (1975), 62 Ill.2d 406, 343 N.E.2d 493, and O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, first claims that the Village's zoning ordinance is preempted by the Act. Cargill is correct in pointing out that this court had long held that, due to the Act's express purpose of "establish[ing] a unified, state-wide program" to protect the environment (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1002(b)), the Act was intended to preempt non-home-rule regulations. (See Avery Gravel, 101 Ill.2d at 432-33, 79 Ill.Dec. 169, 463 N.E.2d 723; John Sexton Contractors Co., 75 Ill.2d at 505-07, 27 Ill.Dec. 489, 389 N.E.2d 553; Carlson, 62 Ill.2d at 408-10, 343 N.E.2d 493; O'Connor, 52 Ill.2d at 366-67, 288 N.E.2d 432.) The problem with Cargill's argument, as we will explain, is that section 39(c) of the Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039(c)) has been amended in a manner that makes clear that the Act no longer preempts local zoning ordinances. Accordingly, this court's decisions in Avery Gravel, 101 Ill.2d at 432-33, 79 Ill.Dec. 169, 463 N.E.2d 723, John Sexton Contractors Co., 75 Ill.2d at 505-07, 27 Ill.Dec. 489, 389 N.E.2d 553, Carlson, 62 Ill.2d at 408-10, 343 N.E.2d 493, and O'Connor, 52 Ill.2d at 366-67, 288 N.E.2d 432, which were based upon this court's interpretation of the Act as it existed prior to the General Assembly's amendment of section 39(c), offer little support for Cargill's position.

Prior to the amendments to section 39(c), the only requirements in the Act pertaining to local governmental involvement in permitting decisions were that local governments were required to be notified when a request for a refuse-disposal permit had been requested, and a public hearing had to be held in the county where the proposed refuse-disposal facility would be located. (See Ill.Rev.Stat.1981, ch. 111 1/2, par. 1039(c).) On November 12, 1981, however, the General Assembly amended section 39(c) of the Act to provide:

"No permit for the development or construction of a new facility other than a new regional pollution control facility may be granted by the Agency unless the applicant submits proof to the Agency that the applicant has secured all necessary zoning approvals from the unit of local government having zoning jurisdiction over the proposed facility." (Emphasis added.) (1981 Ill.Laws 3574.)

The plain language of the amendment made clear that, at least with respect to new pollution control facilities, the General Assembly no longer intended that the Act preempt local zoning ordinances.

Section 39(c) was subsequently amended to provide:

"Except for those facilities owned or operated by sanitary districts * * *, and except for new regional pollution control facilities * * *, 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).)

This subsequent amendment thus applies not only to applicants seeking permits for construction of new facilities (as with the initial amendment), but also to those seeking permits to modify existing facilities (see Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039(a)). The plain language of this subsequent amendment, like the initial amendmen...

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