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Mathers v. Pollution Control Bd.





PETITION for review of order of Pollution Control Board.


Rehearing denied August 16, 1982.

These consolidated appeals involve a decision of the Illinois Environmental Protection Agency (hereinafter the Agency) denying Donald J. Hamman's application for a permit to develop a sanitary landfill. That decision was reversed on hearing and again on rehearing by split decisions of the Illinois Pollution Control Board (hereinafter the Board), from which these appeals and a cross-appeal are taken.

The scenario of this dispute began on December 30, 1977, when Hamman applied to the Agency for a permit to develop a sanitary landfill on a 145-acre site adjacent to 111th Street in Wheatland Township, Will County, Illinois. That application and three subsequent applications were denied for reasons not material to the parties' present litigation. On March 25, 1980, Hamman submitted the application for the developmental permit which gives rise to these causes. On July 21, 1980, the Agency found, inter alia:

"The Wheatland Township Road Commissioner, the E.J. & E. Railroad, and Planning Horizons, Inc. (See April 25, 1980 Traffic Analysis of 111th Street) concur that 111th Street is not designed to carry the truck traffic associated with a landfill. The Wheatland Township Road Commissioner has not agreed in writing for 111th Street to be upgraded to the specifications recommended by Planning Horizons, Inc. This issue must be resolved in order to ensure that trucks will be able to use 111th Street legally. (Rule 314, 316(1) (4), Chapter 7 of the Illinois Pollution Control Board Rule and Regulations). A Public hearing for this proposed sanitary landfill site will not be considered until this problem has been rectified.

Based upon the above condition, this Agency must deny the permit * * *."

The street in question is the immediate access road to the landfill site. Among its relevant problems are the fact that at several points it can only accommodate one-way traffic, is prone to severe flooding, and is a gravel road. Other facts contributing to the road's unsuitability as a landfill access road need not be articulated, as the need for its improvement is perhaps the only area of agreement.

Rather than submit his application for a sixth time, Hamman appealed the Agency's denial to the Board, which scheduled a public hearing on November 19, 1980. Notice of the hearing was published both in the Environmental Register and in the Joliet Herald. On November 18, 1980, the Agency and Hamman stipulated that the sole basis of the denial was Hamman's "failure to present any evidence of agreement by the Wheatland Township Road Commissioner for the upgrading of 111th Street * * *." The following day, the hearing was held. Not a single adversarial counsel, public official, representative of the press, or member of the public was in attendance. Pursuant to the Agency's stipulation, the hearing officer found that, with the exception of the road problem, all procedural and substantive requirements had been satisfied. A briefing schedule was arranged, but the Agency's brief was late and this caused Hamman's brief to also be late. In order to allow the Board to render its decision within the statutory time limit, Hamman voluntarily agreed to extend the time of decision until January 22, 1981.

On January 8, 1981, the Board reversed the Agency and remanded this cause for issuance of a developmental permit. The Agency had based its denial on perceived violations of two rules. The Board found that Solid Waste Rule 314(b) (Ill. P.C.B. Rules and Regs., ch. 7, Rule 314(b)) (hereinafter Rule 314(b)) was limited on its face to roads within a site. It further found that Solid Waste Rule 316 (a)(4) (Ill. P.C.B. Rules and Regs., ch. 7, Rule 316 (a)(4)) (hereinafter Rule 316(a)(4)) was not a bar to the issuance of a permit as it makes no direct reference to roads off the site. A dissent to the Board's opinion queried, "If Rule 316(a)(4) cannot be read to address the effect of such vehicular traffic upon the land use and the population density within the area, then the rule has little meaning." See Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 4 (P.C.B. Jan. 8, 1981 dissenting opinion).

On February 11, 1981, the Agency moved to vacate the Board's order and to set the matter for rehearing. On February 13, 1981, Raymond Greenberg, highway commissioner for Wheatland Township, Harry Mathers, and others petitioned the Board for intervention and for rehearing. On February 19, 1981, the Board granted the motions for intervention and rehearing, but did not vacate the order. On March 5, 1981, Chuck Lampton and Cindy Pentzien petitioned for intervention, for rehearing, and for voiding of all prior Board orders in this cause. The Board allowed their intervention and scheduled the rehearing for April 3, 1981. The various other motions and objections made during this phase of the litigation need not be discussed.

The rehearing commenced as scheduled. While the Board determined that it should focus on the reasons for the denial of the permit, it allowed other matters to be raised as offers of proof, with proponents explaining why the evidence was not of record. This resulted in a continuation of the rehearing on April 24, May 8, May 22, May 29, and June 18, 1981. Twenty-five witnesses and over 100 exhibits addressed a myriad of questions concerning the proposed facility. When the rehearing concluded, the Board had over 1,600 pages of transcript and exhibits to review, in addition to the transcript of the original hearing and Agency record of over 1000 pages. According to the uncontroverted report of one attorney, the initial rehearing was attended by over 200 individuals, including 20 public officials, five adversarial attorneys, and four State legislators.

On November 12, 1981, the requirements for obtaining a developmental permit for, inter alia, sanitary landfills were modified. (See Ill. Rev. Stat. 1981, ch. 111 1/2, pars. 1003, 1039, 1039.1, 1040.1.) No permits for the development or construction of a new regional pollution control facility (hereinafter a facility) may now be granted unless an applicant submits proof to the Agency that the facility's location, if in an unincorporated area, has been approved by the county board after a public hearing. Sanitary landfills are considered facilities, and a new facility is one, inter alia, initially permitted for development or construction after July 1, 1981.

A week after this modification in the law, the Board rendered its decision on rehearing. While various aspects of its supplemental opinion will be discussed hereafter, we note the Board affirmed its earlier decision and held that the Agency's permit denial for want of a written agreement with the highway commissioner was an unlawful delegation of its permitting authority. Two dissents were filed. Both were grounded on the inadequacy of the access road.

Before turning to the several issues presented for our review, it is necessary for us to rule on the two motions which have been taken with the case. We have previously issued orders regarding two additional motions.

Hamman has moved to strike and dismiss the initial brief submitted by the Township of Wheatland, Lampton, and Pentzien and to dismiss the three from this appeal. He argues that the township never petitioned for intervention at the administrative level, and that the latter individuals have not shown how they would be adversely affected by the Board's order. In their reply brief, all appellants except Greenberg respond, inter alia, that these arguments have been waived as they were not advanced at the administrative level. Hamman, in his supplemental brief, responds that he could not have known the township was claiming intervenor's status until it filed its brief in this court, and that Lampton and Pentzien did not petition to intervene in a timely fashion. This prompted the second motion taken with the case. All appellants except Greenberg moved to strike Hamman's supplemental brief, contending, inter alia, that while the timeliness issue was raised at the administrative level, it was not raised at the time of Hamman's initial objection to the individual intervenors on the ground that they were not adversely affected. Other matters raised in these motions need be here considered.

• 1 Considering first the status of the Township of Wheatland, we note the provision for review under section 41 of the Environmental Protection Act (hereinafter the Act (Ill. Rev. Stat., 1980 Supp., ch. 111 1/2, par. 1041):

"Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of * * *."

While the township was unquestionably a participant in the rehearing, its failure to petition precludes it from having the status of a party. It is therefore, under the facts herein and above provision, precluded from obtaining judicial review in this court. (See Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill.2d 16, 18, 294 N.E.2d 259, 261-62.) Finding Hamman's objection to be timely, the township's briefs are stricken, and it is dismissed from this cause.

As for Lampton and Pentzien, we find Hamman's objection to their intervention at the administrative level on the basis of untimeliness to be waived in this court as it itself was untimely. Turning solely to the issue of adverse effect, these individual intervenors alleged that they were residents of a subdivision sharing the same groundwater system with the proposed facility, and dependent on well water. They further alleged an inadequate road system. We find they thus participated in the hearing and adequately alleged adverse effect. Hamman's motion is therefore denied as to these parties. The appellant's motion is also denied as our finding of waiver makes striking the entire responsive brief unnecessary.

The initial issue presented for our review is whether the legal notice of the Board's initial hearing of this cause violated statutory and constitutional notice and public participation requirements. Section 40 of the Act (Ill. Rev. Stat., ...

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