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White Fence Farm, Inc. v. Land & Lakes Co.

OPINION FILED AUGUST 20, 1981.

WHITE FENCE FARM, INC., PLAINTIFF-APPELLANT,

v.

LAND AND LAKES COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1981.

The Illinois EPA issued a permit for a sanitary landfill.

Did the EPA have jurisdiction? Yes.

Did the complainant exhaust its administrative remedies? No.

The complaint was dismissed and we affirm.

White Fence Farm, Inc. (White Fence), filed a nine-count complaint seeking declaratory judgment, certiorari, and other relief regarding a sanitary landfill permit that the Illinois Environmental Protection Agency (EPA) had granted to Land and Lakes Company (Land and Lakes). The complaint alleges that White Fence operates a large restaurant adjacent to a site which the EPA has approved for a sanitary landfill. Numerous other factual allegations concern the manner in which solid waste will be disposed of at the site, the possibility that operation of the landfill will pollute underground water which White Fence uses in its restaurant business, and the EPA's failure to consider land-use implications when granting the permit.

The complaint also alludes to certain rules and regulations promulgated by the Pollution Control Board (Board). Chapter 7 of these rules and regulations — dealing with solid waste — outlines the process to be followed by a party seeking a sanitary landfill permit from the EPA. In particular, the complaint refers to Rule 301, which provides that no person shall operate a sanitary landfill unless each requirement contained in Rules 302 and 318 is performed. It is then alleged that Land and Lakes and the EPA failed to comply with Rule 316(a), which provides, in part, as follows:

"An Application for a Development Permit for a sanitary landfill shall contain evidence adequate to prove to the Agency that the development of the sanitary landfill will not cause or tend to cause water or air pollution; will not violate applicable air and water quality standards; and will not violate any rule or regulation adopted by the Board. The Application shall include, unless waived in writing by the Agency as inapplicable to the site in question: * * *."

The rule then lists 17 items which are to be contained in an application. Rule 205(a) provides, "All applications for permit required under these Regulations shall contain all data and information specified in those Rules governing the type of facility for which the permit is required." White Fence's complaint alleges that several of the items listed in Rule 316(a) were omitted — without written waiver — from Land and Lakes' application.

Count I of the complaint, which deals mainly with the possibilities of pollution of underground water, seeks a declaratory judgment that the permit is null and void.

Count II alleges that the permit was granted without jurisdiction on the part of the EPA.

Count III claims the EPA acted arbitrarily and carpriciously in granting the permit.

Count IV shifts from an emphasis on underground water to one of land use. It enumerates matters which the EPA allegedly either failed to consider or did not consider adequately and alleges that the EPA acted arbitrarily and capriciously in granting the permit without taking these items into consideration.

Count V alleges that the EPA exceeded its statutory authority by failing to consider the land-use implications and failing to use its permit-granting authority to implement a unified statewide environmental protection plan.

Count VI alleges that the EPA acted arbitrarily and capriciously by not requiring wells to be drilled downstream from the site to check ...


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