APPEAL from the Circuit Court of Kane County; the Hon. BARRY
PUKLIN, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 30, 1978.
The Village of South Elgin, the County of Kane, and Eugene Armentrout, State's Attorney for Kane County, filed a complaint for an injunction against Waste Management of Illinois, Inc., and the Illinois Environmental Protection Agency, seeking to have certain developmental and operational permits issued by the Environmental Protection Agency declared void, and to have Waste Management of Illinois, Inc., enjoined from taking any action to operate a landfill under the permits. Waste Management of Illinois and the Environmental Protection Agency filed motions to dismiss the complaint and the trial court granted the motions, sustaining the constitutionality of the applicable provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1001 et seq.), and dismissing the complaint "for failure of plaintiffs to exhaust their administrative remedies before the Illinois Pollution Control Board." The plaintiffs appeal, contending that (1) sections 39 and 40 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1039 and 1040) are unconstitutional; (2) that the plaintiffs do not have an adequate administrative remedy and therefore the trial court erred in dismissing their complaint for failure to exhaust their administrative remedies under the Environmental Protection Act and, (3) that the pleadings demonstrate that the activities of Waste Management of Illinois violate section 7-4-4 of Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1977, ch. 24, par. 7-4-4).
The Village of South Elgin lies immediately northwest of the landfill site which is the subject of this litigation. The problem of landfill operation in the subject area was before this court in the case of Tri-County Landfill Co. v. Pollution Control Board (1976), 41 Ill. App.3d 249. That case involved an Illinois Pollution Control Board finding that two landfill companies operating immediately to the east of a 235-acre tract referred to as "Site C," were guilty of violating section 12 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1012), in that leachate and pollutional discharges from their landfills had polluted the surface waters on "Site C" and created a hazard to the lower aquifer, from which the Village of South Elgin draws its water supply. While this court held that the imposition of the maximum statutory fine was inappropriate, the court affirmed the findings of the Pollution Control Board in all other respects. The landfill site which is at issue in this case (hereafter, the "new site"), consists of a 55-acre tract in the center, and near the western edge, of "Site C."
On June 17, 1976, a few months before this court's opinion in the Tri-County case, the Environmental Protection Agency issued an environmental permit to Waste Management of Illinois for a landfill operation on the "new site." The Village of South Elgin responded by filing a complaint for injunction in the circuit court, seeking to enjoin the use of the "new site" as a sanitary landfill. Waste Management of Illinois, as a defendant in that action, asserted that South Elgin's complaint should be dismissed, since South Elgin had an adequate administrative remedy under Rule 503 of the procedural rules of the Pollution Control Board, which provides that "any person may file a complaint seeking revocation of a permit," where the permit was violative of an applicable statute, or order or regulation of the Pollution Control Board. South Elgin responded that Rule 503 was invalid, since it was not authorized by section 40 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1040), which only granted a procedural right to contest a refusal to issue a permit, and that South Elgin therefore lacked an adequate administrative remedy. The circuit court of Kane County, rejecting this argument, entered an order on August 6, 1976, dismissing the complaint for "failure of the plaintiff to exhaust administrative remedies." South Elgin did not appeal from the entry of this order.
On November 12, 1976, the Village of South Elgin and a number of citizens filed a complaint before the Pollution Control Board against Waste Management of Illinois and the Environmental Protection Agency, pursuant to Rule 503. The complaint in the instant case alleges that the proceeding filed November 12, 1976, before the Pollution Control Board, "still pends," but, during oral argument, counsel for South Elgin advised this court that South Elgin had "taken a voluntary non-suit" in the action before the Pollution Control Board.
On December 8, 1976, an operational permit was issued by the Environmental Protection Agency to Waste Management of Illinois, allowing the operation of a sanitary landfill on the "new site."
On January 27, 1977, plaintiff commenced the instant action. Their complaint cites evidence presented to the Pollution Control Board in the Tri-County case, and various findings made by that body, and asserts that those findings are "res judicata." The findings, of course, concern the threat to the lower aquifer, which was presented by pollutional and leachate run-offs from the adjoining landfill sites onto "Site C," which was at issue in the Tri-County case. The complaint attacked the constitutionality of sections 39 and 40 of the Environmental Protection Act on grounds of equal protection and due process, since the statutes "allow no remedy to anyone aggrieved by the granting of a landfill permit." It was asserted that the Environmental Protection Agency violated the Pollution Control Board's solid waste regulations in issuing the permit to Waste Management of Illinois and that the Environmental Protection Agency had acted capriciously in granting the permit, since it assertedly failed to receive proof that the issuance of the permit would not cause a violation of the Environmental Protection Act. It was further alleged that since the issuance of the developmental permit, Waste Management of Illinois has "maintained a round-the-clock pumping action" on the "new site" thereby reducing the capacity of one of the Village's wells by 50%. It was asserted that "circumstances of substantial danger to the environment and to the public health of persons and the welfare of persons exists," that "plaintiffs have no remedy other than by injunctive relief herein," and that if an injunction were not granted to plaintiffs "the continuing threat and hazard to the Village of South Elgin's drinking water supply" by reason of pollution and reduction of the water table "would become greater, and irreparable injury, loss and damage" would result.
In passing upon the trial court's dismissal of the complaint, we turn first to the question of whether sections 39 and 40 are unconstitutional. Section 39 governs the issuance of permits (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1039). This section provides that where the Pollution Control Board has by regulation required a permit for the operation of any type of facility, the applicant shall apply to the Environmental Protection Agency for a permit, and "it shall be the duty of the Agency to issue such a permit upon proof by the applicant" that the facility will not cause a violation of the Environmental Protection Act. This section expressly provides that "* * * [p]ermits with respect to sanitary land fills are further subject to the notice requirements of Section 22 of this Act," but, incongruously, section 22 of the Act contains no mention of any "notice requirements." At the time of the filing of the complaint in this case, section 39, itself, contained no provision for serving notice of a permit application upon any interested third parties. *fn1 Section 40 provides for notice and a hearing in cases where the Environmental Protection Agency has refused to grant a permit, but contains no provision for a hearing in a case where a permit is granted. (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1040.) The failure of the legislature to provide, in sections 39 and 40, for notice to interested third parties, or an adversarial hearing as a forum for presenting evidence, in opposition to the issuance of a permit, forms the basis for the plaintiffs' attack on the constitutionality of the statute.
1 Although plaintiffs have made the bare assertion that sections 39 and 40 are violative of equal protection, they have presented no authority or argument which would support this assertion. Clearly, the sections do not create any unreasonable classification which would run afoul of the requirements of equal protection.
It is equally clear that the statute does not violate due process. The Environmental Protection Agency and Waste Management of Illinois call our attention to the fact that the plaintiffs, pursuant to normal procedures of the Agency, were able to make extensive submissions of materials in opposition to the proposed landfill, prior to the issuance of a permit; thus, plaintiffs were not without input in the Environmental Protection Agency's decision.
It is also argued that Rule 503 of the Pollution Control Board's procedural rules, and Rule 205(j) of the Pollution Control Board's Solid Waste Regulations, provide a means for interested third parties to contest the issuance of a permit, which is more than adequate to fulfill the requirements of due process. Rule 205(j) provides that any person adversely affected by the issuance of a permit may petition the Pollution Control Board for a hearing to contest such issuance. Rule 503 provides, in part that, "Any person may file a complaint seeking revocation of a permit * * *" on the basis of improper issuance, or other grounds. However, plaintiffs argue that Rule 503 is beyond the Board's power and therefore invalid, and the question of whether the rule is valid is now pending before the Illinois Supreme Court in two cases (County of Cook v. Sexton (Docket No. 50499) and Landfill, Incorporated v. Pollution Control Board (Docket No. 50498).) If these rules are valid, they provide a substantial means for affected third parties to dispute the issuance of a permit by the Environmental Protection Agency.
However, the essential question is broader than any issue concerning the validity or effect of Rule 503 or Rule 205(j): Does due process mandate that interested third parties be given the opportunity to participate in the administrative process by which the Environmental Protection Agency issues developmental and operational permits? Our conclusion is that there is no such constitutional mandate.
For more than a century, courts> of this State have recognized that individuals who are dependent upon subsurface waters have an important interest in insuring that their water is free from pollution, and the right to bring an appropriate legal action where such waters are polluted, or pollution is threatened. (E.g., Ottawa Gas Light & Coke Co. v. Graham (1862), 28 Ill. 73; Wahle v. Reinbach (1875), 76 Ill. 322; Van Brocklin v. Gudema (1964), ...