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02/17/94 ENVIRITE CORPORATION v. ILLINOIS

February 17, 1994

ENVIRITE CORPORATION, APPELLEE,
v.
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ET AL., APPELLANTS.



Freeman

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

The question presented for review is whether the producer of hazardous waste in this case, who sent the waste to a treatment and disposal facility, was required to obtain authorization from the Illinois Environmental Protection Agency for disposal of the waste in Illinois, separate and apart from the treater's authorization. We hold that the Illinois Environmental Protection Act did not require the producer to obtain such authorization.

BACKGROUND

Envirite Corporation operates a hazardous waste treatment facility in Cook County, Illinois. Peoria Disposal Company operates a hazardous waste treatment facility in Peoria County, Illinois. Each facility is capable of treating certain hazardous wastes, including those designated "F006" and "F019" by the United States Environmental Protection Agency (EPA).

Envirite's treatment process neutralizes the F006 and F019 wastes so as to render them officially nonhazardous, or "delisted," according to EPA standards. The nonhazardous waste is then deposited in a nonhazardous waste landfill.

Peoria Disposal's treatment process combines the F006 and F019 wastes with other wastes, and then subjects this mixture to a chemical stabilization process. The resulting residue has a substantially inhibited ability to leach, but, at the time of the proceedings below, remained officially "listed" as a hazardous waste product. The Illinois Environmental Protection Agency (Agency) authorizes Peoria Disposal to dispose of this end-waste in Peoria Disposal's hazardous waste landfill. This authorization is required for "generators" of hazardous waste pursuant to section 39(h) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/39(h) (West 1992)).

Production Plated Plastics (PPP) is a Michigan company that produces F006 hazardous waste. In 1981, Envirite and Peoria Disposal submitted bids to PPP for the treatment and disposal of PPP's waste. PPP awarded the contract to Peoria Disposal. Peoria Disposal accepted and treated PPP's waste, and disposed of the stabilized end-waste in its hazardous waste landfill. PPP has not obtained the section 39(h) authorization from the Agency.

Envirite filed a complaint with the Illinois Pollution Control Board (Board) against Peoria Disposal and the Agency. (415 ILCS 5/31(b) (West 1992).) Citing PPP's lack of section 39(h) authorization, Envirite claimed that Peoria Disposal violated the Act by accepting, treating, and disposing of PPP's waste. (415 ILCS 5/21(e), 39(h) (West 1992).) Envirite also alleged that the Agency violated the Act by failing to end Peoria Disposal's practice despite Envirite's requests to the Agency to take action. 415 ILCS 5/30, 31(a) (West 1992).

The Board, on the Agency's motion, dismissed the Agency from the proceeding. The Board concluded that the Agency is not subject to an enforcement action brought under section 31(b) of the Act. (See Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 556-57, 387 N.E.2d 258.) The Board also granted Peoria Disposal's motion for summary judgment. The Board concluded that PPP was not a "generator" and that Peoria Disposal was, within the meaning of section 39(h) of the Act.

Envirite petitioned the appellate court for review of the Board's decision. (415 ILCS 5/41(a) (West 1992).) The appellate court affirmed the Board's decision in part and reversed in part. The court affirmed the Board's dismissal of the Agency from the action. The court reversedthe Board's determination that Peoria Disposal did not violate section 39(h) of the Act. (239 Ill. App. 3d 1004, 1009.) The court remanded the cause for reinstatement of the action against Peoria Disposal.

The Agency and Peoria Disposal jointly petitioned for leave to appeal. (134 Ill. 2d R. 315(a).) We allowed the petition and now reverse the appellate court's determination that Peoria Disposal violated section 39(h) of the Act.

Discussion

We note at the outset our standard of review. The Act provides that judicial review of the Board's decisions be in accordance with the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1992)). (415 ILCS 5/41(a) (West 1992).) The Administrative Review Law provides that our review extends to all questions of law and fact presented by the entire record. (735 ILCS 5/3--110 (West 1992).) The rule that an administrative agency's findings of fact should not be disturbed unless they are against the manifest weight of the evidence does not apply where the question involved is one of law, such as the proper interpretation of a statute. Rather, in ...


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