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Vil. of Hillside v. John Sexton Sand & Gravel

OPINION FILED MARCH 26, 1982.

THE VILLAGE OF HILLSIDE ET AL., PLAINTIFFS-APPELLANTS,

v.

JOHN SEXTON SAND AND GRAVEL CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

These consolidated appeals from declaratory judgments and the denial of injunctive and mandamus relief present for review two judgments of the trial court in actions involving the transfer of certain permits and the issuance of a supplemental development permit to defendant John Sexton Sand and Gravel Corporation (Sexton) by the Illinois Environmental Protection Agency (Agency) for a sanitary landfill. Plaintiff Village of Hillside (Village), a non-home-rule municipality, here contends that (1) the Agency was barred from transferring solid waste permits to Sexton without first adopting formal transfer procedures as required by rules of the Illinois Pollution Control Board (Board); (2) the Agency's transfer of permits, approval of a supplemental development permit and its land-use decision-making process had no rational basis; and (3) the Village has zoning jurisdiction over the sanitary landfill within its corporate limits. In addition, the County contends that (1) the Agency exceeded its authority under the Illinois Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1001 et seq.) (Act) by transferring development and operating permits to Sexton without prior adoption of formal procedures as mandated by Board rules; and (2) the Agency's permit transfer procedure violated its duty to insure a safe environment under the Act.

It is undisputed that the site, which is commonly known as the Hillside Quarry (Quarry) and is the subject of these proceedings, occupies approximately 75 acres within the corporate limits of the Village and was formerly used to quarry limestone. Prior to the events which gave rise to the present case, the Agency granted operating permit No. 1973-53-OP to Hillside Stone Corporation (Hillside Stone) to operate a solid waste disposal facility at the Quarry for broken concrete, natural earth material and a limited amount of putrescible demolition material. The Agency granted Hillside Stone a second permit (No. 1975-57-DE) to use the Quarry for general solid waste disposal, except for hazardous, liquid, sludge, and special wastes. Both permits were issued subject to compliance with the Village zoning ordinance, and the Agency had previously received a letter from the then-mayor of the Village indicating that local zoning permitted a landfill at the Quarry. The Agency also issued two supplemental permits to Hillside Stone. Permit No. 76-46 allowed further development of the Quarry besides as a general solid waste disposal site, and permit No. 76-397 allowed disposal of various combustion byproducts, both permits being subject to certain conditions not relevant here.

Thereafter, Commonwealth Edison Company (Edison) purchased the Quarry from Hillside Stone, intending to use it as a landfill for disposal of combustion byproducts. Per request, the Agency transferred permits Nos. 1973-53-OP, 1975-57-DE and 76-397 to Edison. It also issued supplemental permit No. 1977-39 to Edison permitting the use of clay as a liner material.

On May 7, 1979, Sexton and Browning-Ferris Industries, Incorporated (Browning-Ferris) (hereinafter referred to as private defendants), doing business as Congress Development Company, a partnership engaged in the development and operation of sanitary landfills, *fn1 signed a sales agreement with Edison to purchase the Quarry. *fn2 On May 9, 1979, Edison and Sexton requested the Agency to transfer to Sexton certain solid waste management permits held by Edison, and on that date Sexton applied for a supplemental development permit and submitted plans prepared by its engineering firm, seeking approval to modify development of the site in accordance with those plans.

Notice of the permit transfer request and of the supplemental permit application was thereafter sent by the Agency to surrounding municipalities, area legislators, the Cook County State's Attorney, and the Chairman of the Cook County Board, as required by the Act. (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1039(c).) Although not so required, notice also was sent to adjacent landowners, and at the request of the Village public hearings were held by the Agency regarding the permit transactions. Prior to those hearings, a list of nine issues was circulated to counsel concerning matters which the Agency considered relevant to its decisions in permit hearings. The Village and some of its citizens participated in the hearings which transpired during 8 days and 3 evenings between June 12 and July 10, 1979. Thereafter, on August 14, 1979, the Agency transferred to Sexton all previously issued permits, and on August 15, 1979, the Agency issued to Sexton a supplemental permit (No. 1979-1715), allowing Sexton, subject to certain conditions, to modify the development of the site in accordance with the plans of its engineering firm.

On July 18, 1980, Sexton requested an operating permit from the Agency, which was granted to private defendants on August 28, 1980 (No. 1975-57-OP), and restricted operation of the site to the disposal of general municipal solid waste — excluding liquid, special, and hazardous wastes. Private defendants commenced a sanitary landfill operation at the Quarry under permit No. 1975-57-OP on September 15, 1980.

Relevant to our consideration is count II of the Village's fourth amended complaint and the County's petition to intervene and intervening complaint, all of which generally alleged that the transfer of permits by the Agency violated the Board's procedures. On September 15, 1980, following hearings on the motions for declaratory judgment, temporary restraining order, and injunction, the trial court found, inter alia, that the Village did not assert environmental harm or damage from the activities of private defendants; it lacked jurisdiction to enter an injunction based on count II or section 42(d) of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1042(d)) as alleged by the County; no administrative remedy existed to evaluate the Agency's issuance of a permit or approval of a transfer permit; private defendants did not violate the Act as alleged and thus could not be enjoined from exercising their rights under the permits; although the Agency did not comply with Rules 211 and 213 in transferring the permits, Rule 211 and Rule 213 insofar as it applied to the Agency's permit administration authority (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 1004(g), 1039(a)) are void as exceeding the Board's statutory authority; the Agency's standardized form required of applicants in support of requests for transfer of solid waste management permits is an adequate procedure; count II, the County's complaint and the motions for a temporary restraining order, were in effect petitions for writs of mandamus, since plaintiffs sought to compel the Agency to strike and expunge the operating permits issued on August 28, 1980; and those operating permits were properly issued. Accordingly, the trial court denied the motions for a temporary restraining order and for mandamus, dismissed the Village's count II and the County's complaint, and held that Rule 211 and the relevant part of Rule 213 were invalid.

On November 12, 1980, following renewal by the Village of its motions for declaratory judgment, temporary restraining order and injunction based on various counts of its fourth amended complaint, the trial court found, inter alia, that all defendants were entitled to judgment on the issues of the Agency's procedure in permit decisions; its alleged bias and incompetence; its alleged failure to impose conditions on the relevant permits; the permit transfers; and the rules, regulations and standards regarding the Agency's administration of the permit system; that the Village, as a non-home-rule municipality, was preempted from applying its zoning ordinance to the site; and that the Agency's decisions to transfer and issue permits were entitled to a presumption of validity. Accordingly, the trial court dismissed the counts in question with prejudice and denied the motion for a temporary restraining order.

On January 9, 1981, the trial court entered an order — subsequently modified nunc pro tunc — finding, inter alia, that its order of November 12, 1980, was correct except as to one count of the Village's fourth amended complaint, for which the Village's motion for rehearing was continued.

The Village and the County appeal from the order of September 15, 1980, requesting that such order be reversed; their motions for a temporary restraining order and preliminary and permanent injunction be granted; the permits in question and the transfer of all such permits to Sexton be declared invalid; Rules 211 and 213 be declared valid; and the petitions for writ of mandamus be granted. The Village also appeals from the order of January 9, 1981, requesting that such order and that of November 12, 1980, be reversed; and that its motion for temporary restraining order and preliminary and permanent injunction be granted.

OPINION

We first consider the effect of Rules 211 and 213 on the Agency's permit transfer procedures. Plaintiffs contend that Rules 211 and 213 are valid exercises of the Board's authority over the agency and that since the Agency failed to adopt formal transfer procedures, as purportedly required by those rules, the transfer of permits to Sexton exceeded the Agency's authority. Rules 211 and 213 of chapter 7 of the Illinois Pollution Control Board Rules and Regulations (effective July 27, 1973) (Rules) provide as follows:

"Rule 211: Transfer of Permits. No permit is transferable from one person to another except as approved by the Agency under procedures it adopts pursuant to Rule 213."

"Rule 213: Design, Operation, and Maintenance Criteria. (a) The Agency may adopt procedures which set forth criteria for the design, operation, and maintenance of solid waste management site and other procedures the Agency deems reasonably necessary to perform its duties under this Chapter, and as are consistent with Part III thereof. All such procedures shall be revised from time to time to reflect current engineering judgment and advances in the state of the art. Such procedures and revisions thereto shall not become effective until filed with the Index Division of the Office of the Secretary of State pursuant to `An Act concerning Administrative Rules,' approved June 14, 1951, as amended. (b) Before adopting new criteria or making substantive changes to any criteria adopted by the Agency, the Agency shall:

(1) publish a summary of the proposed changes in the Board Newsletter; and

(2) provide a copy of full text of the proposed changes to all persons who hold Agency permits or have active applications pending, and any ...


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