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Browning-ferris Industries, Inc. v. Pcb

OPINION FILED SEPTEMBER 10, 1984.

BROWNING-FERRIS INDUSTRIES, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

Petitioner, Browning-Ferris Industries of Iowa (BFI), appeals from orders of the Pollution Control Board denying its applications for the transfer and granting of certain permits sought in connection with the operation of a landfill in Rock Island County. We reverse.

On March 5, 1981, James Kiesow and Melvin Mohr of Rock Island applied to the Illinois Environmental Protection Agency (IEPA) for a permit to develop a solid waste management site. The site was to be located in the city of Milan, Rock Island County.

The application from Kiesow and Mohr listed five sources of waste to be stored at the site: residential, commercial, non-hazardous industrial, non-hazardous agricultural and municipal sludge. On August 28, 1981, the applicants were granted a development permit. The permit provided in pertinent part:

"This permit is granted to handle general refuse excluding all hazardous wastes * * *."

The permit also contained the following special condition:

"No wastewater treatment sludges or water treatment sludges shall be received at the site for disposal unless a supplemental permit shall have been received from the Agency."

Ultimately, an operating permit was granted to Kiesow and Mohr on February 9, 1983, which incorporated by reference the terms of the development permit.

Prior to the issuance of the operating permit by IEPA, Kiesow and Mohr applied in December 1982 for two supplemental waste stream permits. No. 822958 was an application to dispose of domestic wastewater sludge from the village of Milan. No. 822959 was an application to dispose of fly ash from the John Deere Harvester Works. Supplemental permits were issued for these waste streams on February 25, 1983, and March 8, 1983, respectively. It is now the position of IEPA that these permits were erroneously granted.

Concurrent with the events described above, BFI had been negotiating through its agents for the purchase of the site from Kiesow and Mohr. On February 18, 1983, BFI and Kiesow and Mohr signed a letter of intent for the sale of the site. On March 8, 1983, the parties reduced their understanding to a formal agreement. The agreement clearly evidences BFI's intent to acquire all necessary permits by transfer or original application for conducting a full-scale landfill operation.

Ultimately, the IEPA denied transfer of the supplemental permits and applications for eight additional supplemental permits. (It had, however, approved the transfer of the operating permit.) IEPA's position was predicated upon two sections of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1001 et seq.). Section 39(c) of the Act provides:

"* * * no permit for the development or construction of a new regional pollution control facility may be granted * * * unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located in accordance with section 39.2 of this Act." (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039(c).)

Section 3(x) of the Act defines a "new regional pollution control facility" as:

"(1) a regional pollution control facility initially permitted for development or ...


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