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02/06/97 ESG WATTS v. ILLINOIS POLLUTION CONTROL

February 6, 1997

ESG WATTS, INC. PETITIONER-APPELLANT,
v.
ILLINOIS POLLUTION CONTROL BOARD AND THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT-APPELLEES. CONS WITH: 3-96-0562 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, APPELLANT, V. ILLINOIS POLLUTION CONTROL BOARD, ET AL., APPELLEES.



Petition for Review of an Order of the Illinois Pollution Control Board. No. PCB 94-23.

Released for Publication March 12, 1997. As Corrected June 19, 1997.

Present - Honorable Tom M. Lytton, Presiding Judge, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Lytton, P.j., and Homer, J., concurring.

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

ESG Watts, Inc. (Watts) appeals the Illinois Pollution Control Board's (Board) decision affirming the Illinois Environmental Protection Agency's (Agency) denial of seven waste stream permit applications. The Agency appeals a Board sanction requiring that it pay Watts' attorney $1,250 for fees incurred because the Agency failed to meet the Board's briefing deadline. We hold that the Board's decision affirming the Agency's denial of the waste permits was not against the manifest weight of the evidence. We therefore affirm the ruling. (3-96-0533). However, we hold that the Board lacked the authority to order the Agency to pay Watts' attorney fees, and we thus reverse that ruling. (3-96-0562).

BACKGROUND

Watts owned three landfills in Illinois. Its site known as Taylor Ridge was located in Rock Island County. The other two sites, known as the Viola Landfill and the Sangamon Valley Landfill, were located in Viola and Springfield respectively. Only Taylor Ridge was operating at the time of this appeal. Beginning in May 1994 Watts started sending permit applications for its Taylor Ridge site to the Agency. Renewal applications for the acceptance of "generic" waste streams, wastewater treatment sludge from ink, button dust, calcium sulfite cake, and buffing dust waste were all denied. Additionally, the Agency denied two new applications for Taylor Ridge to receive waste sulfur cement and paint sludge. In all, seven applications were denied for the Taylor Ridge site.

The Agency based its denials on section 39(i)(1) of the Illinois Environmental Protection Act (Act). 415 ILCS 5/39(i) (West 1994). Section 39(i)(1) provides:

(i) Before issuing any RCRA permit or any permit for the conduct of any waste-transportation or waste-disposal operation, the Agency shall conduct an evaluation of the prospective operator's prior experience in waste management operations. The Agency may deny such a permit if the prospective operator or any employee or officer of the prospective operator has a history of:

(1) repeated violations of federal, State, or local laws, regulations, standards, or ordinances in the operation of refuse disposal facilities or sites;

415 ILCS 5/39(i) (West Supp. 1996).

As evidence of repeated violations, the Agency cited a circuit court action (People v. Watts Trucking et al., 91-CH-242) and 19 administrative citations against Watts over a seven year period. The action in the circuit court concerned violations in the Sangamon Valley Landfill in Springfield. It resulted in $350,000 in penalties being levied just six months before the first denial. The judgment was one of the single highest penalties assessed against a landfill owner in Illinois. With regard to the 19 administrative citations, four related to operations at Taylor Ridge, with the most recent of the four taking place in 1989. Furthermore, as another reason for denying the permit applications, the Agency identified "technical difficulties" in six of the seven permit applications. These difficulties included the failure to: properly identify the waste; provide the proper land waste code; provide copies of laboratory papers and demonstrate that certain tests had been performed.

Watts appealed the seven permit denials to the Board. The Board affirmed the denial of the applications. Although it affirmed the decision, the Board noted that the technical difficulties were not supported by the record and were not dispositive of the issue relating to section 39(i). However, the Board upheld the decision because Watts' past history of violations clearly "demonstrated an example of an appropriate use of section 39(i) * * * *." The Board also ordered the Agency to pay $1,250 in attorney fees to Watts' attorney for fees incurred in attempting to exclude an untimely Agency brief. Both Watts and the Agency appeal.

This is a relatively short statement of the facts. We will discuss additional facts relevant to the individual issues as each is analyzed.

ANALYSIS

When reviewing a decision of the Illinois Pollution Control Board, the court's function is not to reweigh the evidence or make an independent assessment of the facts. Illinois Environmental Protection Agency v. Illinois Pollution Control Board, 252 Ill. App. 3d 828, 624 N.E.2d 402, 191 Ill. Dec. 553 (1993). Rather, the court must evaluate the evidence to ascertain whether the Board's decision was contrary to the manifest weight of the evidence. Environmental Protection Agency v. Pollution Control Board, 115 Ill. 2d 65, 503 N.E.2d 343, 104 Ill. Dec. 786 (1986). If any evidence in the record fairly supports the action taken by an administrative agency, the decision must be sustained on appeal. Farmers State Bank v. Department of Employment Security, 216 Ill. App. 3d 633, 576 N.E.2d 532, 159 Ill. Dec. 863 (1991).

Operator Specificity

Watts asserts that the Agency's review of operations at facilities other than the facility seeking the permits was improper. In its written decision, the Board ruled that section 39(i) is operator-specific and not facility-specific and, therefore, reasoned that the Agency could consider repeated violations at sites other than the Taylor Ridge site when determining whether to grant the waste permits. Watts contends, however, that section 39(i) is facility-specific and that it was inappropriate to consider violations at any sites other than Taylor Ridge because they bore no rational relation to events at Taylor Ridge.

The overriding objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. Roser v. Anderson, 222 Ill. App. 3d 1071, 584 N.E.2d 865, 165 Ill. Dec. 431 (1991). A court should first look to the statutory language as the best indication of legislative intent. Veterans Assistance Commission of Will County v. County Board of Will County, 274 Ill. App. 3d 32, 654 N.E.2d 219, 210 Ill. Dec. 920 (1995).

Section 39(i) provides that the Agency, when determining whether to grant a permit, must evaluate the "prospective operator's prior experience in waste management operations." 415 ILCS 5/39(i) (West Supp. 1996). The Agency may deny a permit because of "repeated violations * * * in the operation of refuse disposal facilities or sites * * * * (emphasis added)." 415 ILCS 5/39(i)(1) (West Supp. 1996).

The language of the statute does not limit the review of violations to the facility seeking permits. Rather, we find that the statute is clear in providing that the Agency may consider violations at other sites operated by the owner. Therefore, we ...


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