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Landfill, Inc. v. Pollution Control Bd.





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.


Defendant, the Illinois Pollution Control Board (PCB) brings this interlocutory appeal under Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1975, ch. 110A, par. 307(a)(1)) from an order of the circuit court of Cook County granting the motion of plaintiff, Landfill, Inc. (Landfill), for a preliminary injunction (Ill. Rev. Stat. 1975, ch. 69, par. 1 et seq.) pursuant to its complaint for declaratory judgment. The order appealed from enjoins defendant, pending further order of the court, from conducting hearings, receiving evidence, and conducting or allowing the conduct of, any discovery in a proceeding pending before it entitled Palos Conservation Committee, et al. v. Landfill, Inc., et al., PCB 76-191.

Landfill filed a verified two-count complaint for a declaratory judgment (Ill. Rev. Stat. 1975, ch. 110, par. 57.1). Count I of the complaint related that on March 25, 1975, Landfill filed an application with the Illinois Environmental Protection Agency (EPA), as required by the Environmental Protection Act (Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1001 et seq.) and Solid Waste Regulations promulgated thereunder by PCB, for a permit to develop and operate a sanitary landfill on certain real estate it owned in south suburban Cook County. Between March and October of 1975, Landfill representatives spent hundreds of hours compiling information requested by EPA regarding the environmental characteristics of the site and the plans for the proposed landfill. On October 29, 1975, EPA denied a permit to Landfill until such time as it supplied EPA with "land use and zoning" information relating to both the landfill site and the adjacent area. Contending that it was not required to supply such information, Landfill appealed to PCB. PCB denied Landfill's appeal on February 11, 1976. Landfill then supplied, at great expense, the disputed information, which included reports prepared by consultants establishing the lack of any adverse ecological impact on existing flora and fauna from the development and operation of the proposed sanitary landfill, the lack of any adverse ecological or public health impact as a result of the theoretical maximums of noise, dust, or traffic which would result, the suitability of the site from a land use standpoint, and the lack of any depreciatory effect on neighboring property values. Numerous groups and individuals opposing the landfill were allowed to present their views during the permitting process, which included two days of public hearings. Finally, on July 2, 1976, EPA issued a permit to Landfill. *fn1

Count I further related that a group designating itself as the Palos Conservation Committee (Committee) then filed a proceeding before the PCB under section 31(b) of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1031(b)) and PCB procedural rule 503(a) ("Permit Review Other Than NPDES Permit Review") to revoke the landfill permit. The Committee was composed of a number of the same individuals and groups who had opposed the landfill permit in the proceedings before EPA. Landfill then sought, before the PCB, to limit the scope of the permit review to those matters contained in the "record" of the proceedings before EPA. PCB denied this request and set the matter for a de novo hearing on the entire permit application process.

The complaint alleged that PCB is without jurisdiction under section 5 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1005) to conduct such a de novo review. It was also alleged that de novo review would deny Landfill due process of law under the Federal and State constitutions for the following reasons: (1) the permitting process before EPA was lengthy and costly to both Landfill and to those who opposed the application; (2) aggrieved third parties, believing that a violation of the Act, or any regulations or orders of PCB would occur when development of the landfill commenced, had a right to file an enforcement proceeding under section 31(b) of the Act; (3) third parties lacked standing to challenge the mere issuance of the permit to Landfill because it was granted in accordance with all applicable laws and regulations; and (4) rule 503(a), under which PCB ordered a new hearing, was enacted by PCB without express authority from the legislature, and is in conflict with the scheme of PCB jurisdiction established in the Act.

Count I concluded with allegations that Landfill had exhausted its legislative and administrative remedies, and that there is an actual and justiciable controversy between the parties. Count I prayed that PCB procedural rule 503(a) be declared unconstitutional, null, and void.

Count II alleged that if PCB is allowed to proceed with the review process, Landfill will be irreparably injured by having to spend the time and money to obtain information for PCB which will ultimately be useless if the relief prayed for in count I is granted, and that PCB will suffer no injury if its review process is enjoined by the court. Count II prayed for preliminary and permanent injunctions against PCB hearings directly challenging the EPA's issuance of the permit, against the conduct of discovery procedures in preparation therefor, and for such other relief as the court deems appropriate. PCB filed no pleading in the circuit court.

On November 9, 1976, Landfill filed an additional verified motion for a preliminary injunction and request for an expedited hearing on its complaint. The trial court entered an order on November 15, 1976, granting a preliminary injunction, ordering PCB to answer or otherwise plead to Landfill's complaint by November 30, 1976, and setting the matter for hearing on December 3, 1976. The record does not reflect that PCB ever answered or filed any other pleading as required by the court's order. However, on December 3, 1976, PCB filed its notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1). *fn2


We note at the outset that, while the PCB is within its rights under Supreme Court Rule 307(a)(1) in bringing this interlocutory appeal, and while decisional law makes it possible for us to reach a decision on the narrow issue of the preliminary injunction, there were available to the PCB other means by which it could have clarified the issues here in dispute, so that the ultimate merits of this case could have been expeditiously and finally resolved in a single appeal. For example, the sole argument of PCB in this appeal has been that Landfill's declaratory judgment action is barred by the exhaustion of administrative remedies doctrine. The record before us does not indicate that PCB ever raised this argument before the trial court. The record reflects only the bare, unsupported, but (most importantly) unrefuted allegation in Landfill's complaint for declaratory judgment that it has exhausted all administrative remedies. Thus, the defense of failure to exhaust administrative remedies was never considered by the trial court. Had the defense been pleaded, a ruling by the trial court either way would have afforded this court the opportunity to review and resolve that very important issue. As the record now stands, we are unable to do so. One important purpose served by Supreme Court Rule 307(a)(1) is to provide prompt review of the injunction order so as not to prolong the harsh burdens of such an extraordinary remedy on those unjustly ordered to bear them. In its haste to bring this interlocutory appeal, PCB has only delayed further the final resolution of this dispute. Such delay benefits no one.



• 1 The threshold question is whether there is a legal basis to sustain the granting of the preliminary injunction. In deciding that question, we cannot consider the merits of the case. (Summit Electric Co. v. Mayrent (1st Dist. 1974), 17 Ill. App.3d 545, 550, 308 N.E.2d 313.) PCB wants this court not only to find that the granting of the preliminary injunction was improper, but also requests that we enter an order dismissing the complaint because Landfill failed to exhaust its administrative remedies. As noted previously, this theory was not presented to the trial court, and therefore was not ruled upon by that court. In fact PCB did not file a motion to dismiss in the trial court, yet it asks this court to dismiss the complaint without such a pleading or providing the trial court an opportunity to consider such a pleading. Although Supreme Court Rule ...

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