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Pioneer Processing, Inc. v. Epa

OPINION FILED MARCH 23, 1984.

PIONEER PROCESSING, INC., ET AL., APPELLEES,

v.

THE ENVIRONMENTAL PROTECTION AGENCY, APPELLANT. — THE COUNTY OF LA SALLE EX REL. GARY PETERLIN ET AL., APPELLANTS,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES.



No. 58083. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.

No. 58238. — Appeal from the Appellate Court for the Third District; heard in that court on petition for review of an order of the Pollution Control Board.

No. 58239. — Appeal from the Appellate Court for the Third District; heard in that court on petition for review of an order of the Pollution Control Board. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 4, 1984.

Gary L. Peterlin, State's Attorney, of Ottawa (Joseph V. Karaganis, Special Assistant State's Attorney, of Chicago, of counsel), for appellants.

Thomas J. Immel and Lee K. Zelle, of Springfield, for appellees.

Neil F. Hartigan, Attorney General, of Springfield (Charles W. Murdock, Deputy Attorney General, and Russell R. Eggert and H. Alfred Ryan, Assistant Attorneys General, of Chicago, of counsel), for the People.

Thomas J. Immel and Lee K. Zelle, of Springfield, for appellees.

This appeal involves three cases. Two of the cases were consolidated at the appellate court level and all three were consolidated in this court. In No. 58083, Pioneer Processing, Inc. (Pioneer), brought an action for declaratory judgment against the Environmental Protection Agency (the Agency) for a determination of its rights to develop a hazardous-waste-disposal site located in Ottawa Township, La Salle County. On March 2, 1982, the circuit court of Sangamon County entered its final judgment order following a hearing on the merits. The trial court held that section 21(g) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1021(g)), which prohibits disposal within 1,000 feet of a private well, was clear on its face and prohibited plaintiffs from the location of any part of a hazardous-waste-disposal site within such limit. In regard to an area of land within the 177 acres called the "Naplate segment," the court held that the municipality, which granted its approval, could not rescind its consent since Pioneer had substantially relied on that authority. The court found that Pioneer had substantially changed its position in reliance on the village of Naplate's resolution which gave the municipality's consent.

Pioneer appealed that portion of the trial court's order prohibiting the use of that area of the site that was within 1,000 feet of the off-site private wells, and the Agency cross-appealed from the court's finding that Pioneer had substantially relied upon the consent of the village of Naplate in locating the site within the 1 1/2 miles of the municipal boundaries. The Appellate Court, Fourth District, held that the trial court was correct in its decision that section 21(g) was unambiguous in providing a 1,000-foot barrier, but disagreed with its finding that the word "site" included any portion of the area whether or not hazardous wastes were disposed of within the 1,000 feet (111 Ill. App.3d 414, 419). The appellate court therefore reversed that part of the trial court's decision prohibiting any part of the permitted site to be located within 1,000 feet of an off-site public well. The appellate court also held that section 21(g) does not prohibit the village of Naplate from withdrawing its approval to the siting of the hazardous-waste-disposal site within 1 1/2 miles of its corporate limits, but that the trial court "correctly noted that the doctrine of equitable estoppel can be applied against a municipality to prevent it from creating a situation where it would be inequitable or unjust to permit it to negate what it has done or permitted to be done." (111 Ill. App.3d 414, 421.) The appellate court held that the trial court's determination that Pioneer had substantially relied upon the resolution to its detriment was entitled to deference and would not be disturbed because it was not contrary to the manifest weight of the evidence. (111 Ill. App.3d 414, 424.) Lastly, the appellate court did not agree with the Agency's assertion that the appeal should be dismissed because the action did not present an actual controversy between all the necessary parties. (111 Ill. App.3d 414, 424-26.) Although the appellate court did find that Naplate was a necessary party to the suit and should have been made a party defendant, it held that it was not necessary to dismiss the suit, because the interests of Naplate and the Agency were sufficiently similar to conclude that Naplate's interests would be protected. 111 Ill. App.3d 414, 426.

In a partial concurrence and partial dissent, one justice stated that, while he concurred in the determination of the majority that the village of Naplate was a necessary party, he did not agree with the majority's conclusion that the interest of the village so coincided with the Agency upon the issue of the authority of the village to withdraw its consent that there could be an appropriate representation of the village by the Agency. He stated:

"The records of this court disclose that the village of Naplate is a party to an appeal now argued and submitted to this court, which includes the same issue of the revocation of the village's consent. The application of the doctrine of representation in this proceeding effectively creates a collateral estoppel which prevents the village from having its day in court in that appeal. One notes that in addition to being omitted as a party to this declaratory judgment action, this action was brought in Sangamon County. The village is situated in La Salle County, some 100 miles distant. It is doubtful that the most extraordinary diligence on the part of the village could discover the present action for purposes of seeking intervention." 111 Ill. App.3d 414, 427 (Trapp, J., concurring in part and dissenting in part).

The Agency has appealed from the judgment of the appellate court, and we have granted its petition for leave to appeal pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)).

The other two cases that were consolidated in this appeal were also consolidated at the appellate court level. The two appeals were brought directly to the Appellate Court, Third District, from an order of the Illinois Pollution Control Board pursuant to section 41 of the Environmental Protection Act, which provides for a direct appeal to the appellate court (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1041). The Board affirmed the Agency's issuance of a permit for the construction of Pioneer's hazardous-waste-disposal site. One of the appeals was brought by the Attorney General of the State of Illinois, and the other was brought by the County of La Salle, the village of Naplate, the city of Ottawa, the village of Utica, the Ottawa township board of trustees, the town of Ottawa, Residents Against Polluted Environment, Rosemary Sinon, Marie Madden, and Joan Benya Bernabei. We will refer to these parties as "petitioners," as did the appellate court.

The named appellees in both of the cases are the Pollution Control Board (the Board), the Environmental Protection Agency (the Agency), William Clarke, Pioneer Development, Pioneer Processing, Inc., and Wilmer and Edith Brockman. We will call William Clarke, Pioneer Development and Pioneer Processing, Inc., "Pioneer."

In the case brought by the Attorney General, No. 58239 in this court, the appellate court determined that the Attorney General had not participated in the proceedings before the Agency or the Board. His first involvement with the case was when he filed a notice of appeal from the Board's decision in the appellate court. The appellate court held that the Attorney General had no statutory or common law right to obtain judicial review of the Board's decision and dismissed his appeal. (113 Ill. App.3d 282, 292-93.) The Attorney General thereafter filed a petition for leave to appeal with this court, and we granted his petition pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)).

In the third case, No. 58238, petitioners challenged the procedures employed by the Agency in regard to the issuance of Pioneer's permit. Petitioners maintained that the Agency's decision to issue a permit should have been based exclusively on the record of the public hearing which it was required to conduct prior to the issuance of the permit, and that the Agency improperly considered materials submitted to it by Pioneer before and after the public hearing. The appellate court rejected petitioners' argument and held that "the Environmental Protection Act does not require the Agency's decision to issue a permit to be based solely on a record of the public hearing required by section 39(c) of the Act." 113 Ill. App.3d 282, 296.

Next, the petitioners argued that the procedures applicable to the public hearing required by section 39(c) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1039(c)) were the "contested case" provisions of the Illinois Administrative Procedure Act (APA) (Ill. Rev. Stat. 1979, ch. 127, par. 1016(a)). The appellate court held that "the contested case provisions of the APA [were] not applicable to public hearings required by section 39(c) of the Environmental Protection Act." 113 Ill. App.3d 282, 297.

The third issue raised by petitioners in the appellate court was whether the procedures adopted by the Agency for the public hearing violated their constitutional rights to due process because they should have been afforded a trial-type hearing at which all evidence relied on by the Agency should have been presented and exposed to cross-examination and rebuttal. The appellate court held that, "[s]ince petitioners were not entitled to any hearing under the United States or Illinois constitutions, they certainly were not entitled to a trial-type hearing" and "the procedures adopted by the Agency for the public hearing did not violate petitioners' rights to due process." 113 Ill. App.3d 282, 298.

Petitioners' fourth issue was whether the Board erred in admitting new evidence during its proceedings in review of the Agency's decision. Prior to the Board's first hearing, Pioneer filed a motion in limine suggesting that the proceedings before the Board be limited to oral arguments. Petitioners objected to Pioneer's motion and claimed that they were entitled to introduce evidence which should have been in the record before the Agency but was omitted. The Board denied Pioneer's motion and allowed petitioners to introduce the evidence even though the Board was aware that its review was to be based exclusively on the record before the Agency. The Board made the exception because it wanted to provide the petitioners with the opportunity to show that the Agency had considered materials outside of the record that it had transmitted to the Board. The appellate court held that, since petitioners had requested the introduction of the new evidence, they could not now complain that the Board erred in considering it, and also that although petitioners claimed they were prejudiced by the Board's consideration of this additional evidence, they never identified what evidence or how they were prejudiced by it. The court refused to scrutinize the record of proceedings before the Board to search for testimony which might be prejudicial to petitioners. 113 Ill. App.3d 282, 298-99.

Lastly, petitioners argued that the issuance of the permit violated section 21(g) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch.. 111 1/2, par. 1021(g)) in that the village of Naplate rescinded its approval of the location of the site within 1,000 feet of existing private wells. The appellate court held:

"These issues were raised by the Attorney General, who was representing the Agency, in Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App.3d 414. This court concluded that section 21(g) had not been violated. Petitioners raise no arguments which have not been already considered by this court in Pioneer Processing and, therefore, we adopt the reasoning and conclusions of that opinion." 113 Ill. App.3d 282, 299.

In its cross-appeal, Pioneer argued that the Board erred by finding that Pioneer could not deem its permit issued, since the 90-day limitation period for Board action under section 40(a) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1040(a)) had expired. Pioneer reasoned that, since section 40(a) allows a permit applicant to petition the Board for a hearing when the Agency refuses to grant a permit and still provides that "[i]f there is no final action by the Board within 90 days, petitioner may deem the permit issued under this Act" (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1040(a)), the 90-day limitation is not tolled during the pendency of the hearing. The appellate court held that the Board was conscientious in attempting to comply with the 90-day limit and, because there were extraordinary circumstances [a preliminary injunction], the 90-day limitation was tolled. The court found that the Board entered a final order within the 90-day limitation as tolled by the preliminary injunction and, therefore, Pioneer was not entitled to deem its permit issued under section 40 of the Environmental Protection Act. 113 Ill. App.3d 282, 300-01.

The same justice who dissented in part in Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App.3d 414, 426-27 (Trapp, J., concurring in part and dissenting in part), also dissented in part in this appeal. He reiterated his belief that the Agency should not have been held to be a proper and qualified representative for the village of Naplate in that case. He believed that, since the village was not a party to the declaratory judgment action, it should not have ...


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