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M.i.g. Invest. v. Env. Prot. Agency





Petition for review of order of Pollution Control Board.


Rehearing denied February 3, 1987.

This is an appeal from a decision of the Pollution Control Board (PCB or Board) pursuant to section 41(a) of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1041(a)), which provides that review of Board decisions shall be afforded directly in the appellate court. Petitioners, M.I.G. Investments, Inc., and United Bank of Illinois, seek review of a PCB affirmance of an Environmental Protection Agency (EPA or Agency) action which denied petitioners' application for a supplemental development permit. On appeal petitioners assert that the PCB misinterpreted the statutory definition of a new regional pollution control facility.

Petitioners own and operate a solid-waste disposal site, known as Bonus Landfill, in the city of Belvidere in Boone County. The facility has been operating since 1972 under a permit granted by the Agency. The permit allows the facility to accept and dispose of residential, commercial, and industrial wastes, but not hazardous wastes. According to the 1972 permit documents, the site occupies a triangular parcel of land measuring approximately 1,900 feet by 1,300 feet. The maximum elevation shown for the site is 827 feet above sea level.

In January 1985 petitioners submitted an application to the Agency for a supplemental permit to modify development at Bonus Landfill. Petitioners sought to alter the final contouring of the landfill to increase its maximum elevation to 872 feet above sea level. On their application, petitioners stated that the site was running dangerously low in capacity and that a proposed lateral extension of the surface area of the existing landfill had been filed with Boone County. They also indicated that the height extension sought from the Agency was compatible with the areal extension proposed to the county. Petitioners set forth several reasons why the space increase they were seeking was needed and noted that the site, which had been in use since 1969, was being encroached by businesses on adjacent property.

On March 26, 1985, petitioners' application was denied. The Agency offered six specific reasons for the permit denial. Petitioners filed a permit appeal to the PCB. Subsequently, the parties entered into a stipulation that all except one issue had been resolved. That issue arose from the following reason given by the Agency as one basis for denial of petitioners' permit application: "Based upon the May 9, 1984 decision of the Circuit court of Lake County Illinois in the case titled Village of Antioch v. Richard Carlson, Director of Illinois Environmental Protection Agency, and Waste Management of Illinois, Inc., No. 83-CH-454, local siting pursuant to Section 39.2 of the Act is required for an increase in disposal capacity due either to new or different elevations above ground or trenches below ground." In Antioch, the trial court had held that the Environmental Protection Act required local approval of a proposed vertical extension of an existing landfill prior to issuance of a permit by the EPA. Petitioners in the instant case had neither sought nor submitted to the Agency local siting approval for their proposed landfill modifications. On the basis of Antioch, the Agency would not grant a permit request without that approval. The parties agreed that the Board could decide the case solely on the remaining issue.

At the Board hearing on this matter the parties' stipulation was admitted into evidence, but no testimony was offered. Only minimal explanations of their respective legal positions were presented by the parties. Subsequent to the hearing, however, both parties briefed the issue. Petitioners argued, among other things, that the Agency had never before interpreted the Act to require local approval for the type of change they were seeking, and that Antioch had no binding precedential value which required the Agency to change its interpretation. The Agency essentially maintained that it had rejected its previous position and adopted the Antioch construction of the statute and urged the Board to follow Antioch also, in the interest of not disturbing a judicially settled legal question.

On August 15, 1985, the PCB issued its opinion and order affirming the Agency's denial of petitioners' permit application by a five to one margin. The dissenting Board member wrote a separate opinion. Petitioners then filed this appeal.

The parties in this case dispute the proper interpretation of a section of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1001 et seq.). Under section 39(c) of the Act, the EPA may not grant a permit for the development or construction of a new regional pollution control facility unless the applicant submits proof that the location of the facility has been approved by the appropriate local government. (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039(c).) A new regional pollution control facility is defined, in relevant part, as "the area of expansion beyond the boundary of a currently permitted regional pollution control facility." (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1003(x)(2).) The PCB opinion contested here held that the "area of expansion beyond the boundary" of an existing facility included vertical extensions of existing landfills, such as the extension sought by petitioners. it is this interpretation of the statutory language that petitioners challenge.

Both the Agency and the PCB based their decisions to require local siting approval, at least in part, on Village of Antioch v. Carlson (May 9, 1984), Lake County circuit court No. 83 CH 454, an unpublished trial court order. The court in Antioch enjoined the EPA from issuing a permit for vertical enlargement of an existing landfill site without following the statutory procedures for a hearing by the officials of the village of Antioch. The court found that the contemplated increase of volume "is a new regional pollution control facility and it was the intent of the legislature to require local siting hearings for such expansion." Village of Antioch v. Carlson (May 9, 1984), Lake County circuit court No. 83 CH 454.

Petitioners argue that the PCB's heavy reliance on Antioch reflects a lack of understanding of the doctrine of stare decisis. The Board opinion, however, does not show so much a misunderstanding of stare decisis as it shows that the argument for stare decisis, if it can be made at all, is very weak.

• 1 The Board correctly concluded that the Antioch decision was not binding on it since the rendering court was an equal, rather than superior, tribunal. The Act has vested concurrent jurisdiction in the Board and the circuit court to hear enforcement actions. (People ex rel. Scott v. Janson (1974), 57 Ill.2d 451, 312 N.E.2d 620.) It has vested jurisdiction to review Board action in the appellate court rather than the circuit court. (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1041(a).) Accordingly, the Board and the circuit court are on an equal footing in relation to deciding questions arising from enforcement of the Act. Courts are not bound to follow decisions of equal or inferior courts. Village of Northbrook v. Cannon (1978), 61 Ill. App.3d 315, 377 N.E.2d 1208.

Even though the Board understood that Antioch had little precedential value, it proceeded to follow the decision anyway. First, however, the Board noted that it did not have before it the complete procedural history of Antioch, and that it had to surmise the facts of the case from the relief granted. In fact, the record shows that all the Board actually had before it was an unpublished, two-page order; an unpublished, one-page order; and an Agency response, with supporting memorandum, to a motion for summary judgment. Neither order gave the reasoning behind the court's decision. The Board opinion points out that the complaint in Antioch was not provided, and that the circuit court orders did not describe the nature of the action. Thus, Antioch provided the Board with neither a factual background nor the reasoning for its holding. Nevertheless, the Board deferred to the Antioch decision to conclude that petitioners' proposed changes required local approval before a permit could issue.

According to the reasoning expressed in its opinion, the Board believed Antioch should be followed in order to avoid creating confusion in a settled area of law. Its conclusion that the area was settled was based on the assertion that the Agency had been implementing the Antioch interpretation for the preceding two years, and that the legislature had taken no steps to alter that interpretation even though it had had time to do so. However, it is undisputed that from the time the statutory provision was enacted until Antioch was decided — a period of some three years — the Agency had espoused a contrary interpretation. In fact, in Antioch itself, the Agency had argued strenuously against the court's ultimate conclusion. Moreover, the record reveals that the Antioch decision was rendered in May 1984. The Board issued its opinion in August 1985. Thus, the Agency could have been applying Antioch for 16 months at most, not two years. Finally, the record is totally devoid of any evidence that the Agency had implemented the Antioch interpretation in so much as a single case prior to the present case. It is equally devoid of any facts showing the likelihood that Antioch had been ...

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