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09/18/96 MEDICAL DISPOSAL SERVICES v. ENVIRONMENTAL

September 18, 1996

MEDICAL DISPOSAL SERVICES, INC., AND INDUSTRIAL FUELS AND RESOURCES/ILLINOIS, INC., PETITIONERS-APPELLANTS,
v.
ENVIRONMENTAL PROTECTION AGENCY AND THE POLLUTION CONTROL BOARD, RESPONDENTS-APPELLEES.



Petition for Review of Orders of the Pollution Control Board. Nos. PCB 95--75, 95--76.

As Modified on Denial of Rehearing, March 6, 1997. Rehearing Denied March 5, 1997. Released for Publication 13, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Tully, P.j., and Greiman, J., concur.

The opinion of the court was delivered by: Cerda

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice CERDA delivered the opinion of the court:

Petitioners, Medical Disposal Services, Inc., an Illinois corporation (MDS), and Industrial Fuels and Resources/Illinois, Inc., an Illinois corporation (Industrial Fuels), appeal from the denial of permits by respondents, the Pollution Control Board (the Board) and the Environmental Protection Agency (the Agency), for MDS to construct a medical-waste-treatment facility. Petitioners argue on appeal that (1) the Board erred in granting summary judgment in favor of the Agency because local siting approvals of pollution-control facilities are transferable to purchasers; (2) the Board should have applied equitable estoppel or equitable tolling; and (3) the Board erred in denying Industrial Fuels's petition for intervention. We affirm.

The main issue in this case is whether a municipality's siting approval of a pollution-control facility under section 39.2(a) of the Environmental Protection Act (415 ILCS 5/39.2(a) (West Supp. 1995)) is transferable to a subsequent owner on the basis that siting approval is location specific and not applicant specific. In other words, can a person other than the original siting applicant seek a developmental permit for a new pollution control facility?

I. Facts

In 1989 Industrial Fuels petitioned the City of Harvey, Illinois, for approval of the construction of a medical-waste-treatment facility, pursuant to a statutory provision giving localities the right to approve the siting of pollution-control facilities. Harvey denied the siting application in 1990, and Industrial Fuels appealed to the Board. The Board affirmed the denial, but this court reversed ( Industrial Fuels & Resources/Illinois, Inc. v. Pollution Control Board, 227 Ill. App. 3d 533, 592 N.E.2d 148, 169 Ill. Dec. 661 (1992)).

In 1994 MDS entered into an agreement giving it an option to purchase the Harvey site from Industrial Fuels. MDS had earlier inquired of the Environmental Protection Agency whether MDS could rely on the siting approval that Industrial Fuels had obtained from Harvey. An assistant counsel for the Agency responded in a letter dated January 10, 1994, that, consistent with previous interpretations in similar situations, the Agency's policy remained that siting approval was location specific so that it remained with land upon sale. The letter also stated that the siting approval granted to Industrial Fuels was valid for MDS's development of the facility.

In May 1994 MDS submitted applications to the Agency for permits to construct the facility. In September the Illinois Attorney General's office wrote to MDS that Harvey had not granted local siting approval to MDS. In October the Illinois Attorney General's office wrote a letter to the general counsel for the Agency that its view was that local siting approval was "not only site-specific, but also facility-specific and applicant-specific." On January 13, 1995, the Director of the Agency wrote to the Attorney General that the two agencies had differing interpretations of the siting approval law, but on January 31 the Agency denied MDS's permit applications.

In March 1995, MDS appealed to the Pollution Control Board, and it argued that permits could be issued pursuant to section 39(c) of the Environmental Protection Act (415 ILCS 5/39(c) (West 1994)) (the Act), on the basis that the Act required proof to the Agency only that the municipality approved the location of the facility and did not require that the municipality approve the transfer of ownership. MDS filed a motion for summary judgment, and the Agency filed a cross-motion for summary judgment.

On May 4, 1995, the Board denied MDS's motion for summary judgment and granted the Agency's cross-motion for summary judgment. The Board's order found that local siting approval could not be transferred from Industrial Fuels to MDS because siting approval was applicant specific.

On June 8, 1995, Industrial Fuels petitioned to intervene. The Board denied Industrial Fuels's petition because it was filed after the Board's final decision was issued. The Board accepted from Industrial Fuels, as an amicus curiae brief, a memorandum of law in support of MDS's motion for reconsideration. The Board denied MDS's motion for reconsideration.

II. Site Location Approval

Petitioners first argue on appeal that local siting approval of a pollution-control facility under section 39.2(a) of the Act (415 ILCS 5/39.2(a) (West Supp. 1995)) is transferable to a new owner because siting approval is only location specific.

Decisions of the Board are reviewed in accordance with the administrative review law. 415 ILCS 5/41(a) (West 1994). The review extends to all questions of law and fact presented by the entire record. 735 ILCS 5/3-110 (West 1994). If the determination of the Board does not involve any factual disputes, and if the case involves solely a question of law, the court is to accord some deference to the agency's interpretation of the Act, but its interpretation is not binding on the court and the court will not uphold erroneous interpretations. National Environmental Services Corp. v. Pollution Control Board, 212 Ill. App. 3d 109, 112, 570 N.E.2d 1245, 156 Ill. Dec. 523 ...


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