                            No. 3--04--0536


                                IN THE

                      APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2006


UNITED DISPOSAL OF BRADLEY,     )    Petition for Review of Order
INC. and MUNICIPAL TRUST &      )    of the Illinois Pollution
SAVINGS BANK as Trustee under   )    Control Board dated June 17,
Trust 0799,                     )    2004
                                )
     Petitioners-Appellants,    )
                                )
            v.                  )     No.     PCB 03--235
                                )
THE POLLUTION CONTROL BOARD     )
and THE ENVIRONMENTAL           )
PROTECTION AGENCY,              )    Appeal from a Decision of
                                )    the Illinois Pollution Control
     Respondents-Appellees.     )    Board


  PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     This appeal comes to us on a petition for review of an order

of the Illinois Pollution Control Board (the Board) dated June

17, 2004.    Petitioners, United Disposal of Bradley, Inc. (United

Disposal), and Municipal Trust & Savings Bank, sought to have a

geographical limitation removed from their operating permit.   The

Illinois Environmental Protection Agency (the Agency) denied the

petitioners' request.    The Board affirmed that denial.

Petitioners appeal.

                              BACKGROUND
     In June of 1994, petitioners filed an application with the

Agency to obtain a development permit for a local waste transfer

station.   On September 21, 1994, a development permit was issued

by the Agency that contained Special Condition No. 9, which

stated, "No waste generated outside the municipal boundaries of

the Village of Bradley may be accepted at this facility."

Critical facts regarding this application and the statutory

scheme under which it was issued will be discussed below to
reduce repetition.

     On December 9, 1994, the petitioners' facility was

completed.   On January 19, 1995, the Agency issued an operating

permit that also contained Special Condition No. 9.

     On March 31, 2003, petitioners filed an application for

modification, asking the agency to remove Special Condition No. 9

from their operating permit.    On May 15, 2003, the Agency

directed correspondence to the petitioners informing them that

their application was denied.    Specifically, the Agency informed

the petitioners that their application was "deemed not to have

been filed because it fail[ed] to set forth information,

documents or authorizations as required" by the Illinois

Administrative Code.   The Agency continued that, "due to the

deficiency" with petitioners' application, no "technical review

of the application" was performed.

     The petitioners appealed the Agency's denial of its


                                  2
application to the Board.   Both the petitioners and Agency filed

motions for summary judgment with the Board.   The Board

ultimately granted the Agency's motion for summary judgment.

Petitioners appeal.

     Petitioners make the following claims on appeal: (1) Special

Condition No. 9 violates the commerce clause of the United States

Constitution (U.S. Const., art. I, '8, cl. 3) and, therefore, is

unconstitutional; (2) Special Condition No. 9 is
unconstitutionally vague; (3) the Agency wrongfully denied

petitioners' application since no violation of the Environmental

Protection Act (the Act) (415 ILCS 5/1 et seq. (West 2002)) would

have occurred if the application had been granted; and (4) the

Agency's reply to petitioners' application was untimely in

violation of the Agency's own regulations (35 Ill. Adm. Code

'807.205(f) (1985)) and, therefore, the application should have

been granted by operation of law.    We address these issues in the

order presented.
                        I. Commerce Clause

     Petitioners argue that the main issue on appeal is "whether

the subject clause of the permit Special Condition No. 9, which

restricts petitioners from accepting waste that is generated

outside the 'Municipal Boundary' of the Village of Bradley, is

invalid as unconstitutional, as a per se violation of the U.S.

Commerce Clause."   This might be true if the transfer station in


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question is otherwise in compliance with the Act and qualified as

a regional pollution control facility.       As we will discuss below,

it is not.     We find that the Agency acted properly and,

therefore, affirm the order of the Board.

     On March 27, 2003, petitioners filed a document with the

Agency that petitioners titled, "Application for Modification to

Operating Permit 1994-30[6]-OP."       While petitioners chose to

refer to their action as an "application for modification," in
reality, the petitioners were attempting to gain authority to

transform their "local" pollution control facility into a

"regional" pollution control facility.       To fully understand the

nature of petitioners' actions, we find it necessary to review

the circumstances surrounding their original application and the

statutory scheme under which it was granted.

     A. Statutory Scheme Under Which Original Permit Issued

     At the time petitioners applied for their permit, the Act

required that every "regional pollution control facility" obtain

siting approval prior to its operation.      415 ILCS 5/39, 39.2

(West 1992).    The Act defined a regional pollution control

facility as "any *** waste transfer station, waste treatment

facility or waste incinerator that accepts waste from or that

serves an area that exceeds or extends over the boundaries of any

local general purpose unit of government."      415 ILCS 5/3.32 (West

1992).


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     In 1994, at the time of petitioners' application, they had a

choice: apply for a regional pollution control facility permit

and obtain siting approval or apply for a permit to operate a

local pollution control facility in which case siting approval

was not required.    They chose the latter.

              B. Petitioners' Original Application

     On June 17, 1994, the petitioners filed an "Application for

Development Permit" with the Agency.    The application noted that

"Siting Certification Form" LPC-PAB was completed and enclosed.

It further noted that siting approval was not "under litigation"

at the time of filing.

     The siting certification form attached to the application

stated as follows:

          "Siting Approval.    The Applicant operates a

     solid waste hauling company serving customers within

     the Village of Bradley.    For this reason, the proposed

     facility qualifies as a non-regional facility.    Sections

     22.14 and 39.2 of the Act do not apply to non-regional

     facilities.    Thus, siting approval reverts to the local

     zoning authority."

                          C. Tennsv v. Gade
     Approximately 11 months prior to the date on which

petitioners filed their application, the United States District

Court for the Southern District of Illinois issued an unpublished


                                  5
order which declared the statutory scheme described in part IA of

this opinion unconstitutional.       Tennsv, Inc. v. Gade, No. 92 503

WLB, (S.D. Ill. July 8, 1993).    The court found that the Act

"establishes a statutory scheme which distinguishes between

facilities located outside the geographic boundaries of a general

purpose unit of government and those which are not so located."

Tennsv, slip op. at 2-3.    The court went on to note that there

was "no valid factor to justify the discriminatory effect of the
statutory scheme" and that it therefore "violates the Commerce

Clause."    Tennsv, slip op. at 5.

     In response to the Tennsv decision, the Illinois legislature

amended the Act effective December 22, 1994.      The amendments

removed the distinction between regional and local pollution

control facilities.

     Under the Act as amended in 1994, and in its current form,

all "pollution control facilities" are required to obtain siting

approval.   415 ILCS 5/3.330, 39(c), 39.2 (West 2004).

     Petitioners argue that their current application, filed

approximately 10 years after the Tennsv decision, was improperly

denied due to the Agency and the Board's incorrect interpretation

of constitutional law.     We disagree and hold that petitioners'

application was correctly denied as the Agency and Board

recognized it for what it was, an attempt to operate a regional

pollution control facility without first obtaining the necessary


                                     6
siting approval required by the Act.

     Petitioners now denounce the limitations contained within

Special Condition No. 9, which they requested and failed to

object to for approximately 10 years.      They do a superb job of

cataloging numerous commerce clause cases describing the evils of

economic protectionism.    That being said, we do not find the

circumstances surrounding the denial of petitioners' application

to be the result of unconstitutional economic protectionism.      We
note that neither the current nor prior statutory scheme involves

a Philadelphia v. New Jersey situation in which commerce is

blatantly halted at the border.       See Philadelphia v. New Jersey,

437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978) (United

States Supreme Court struck down a New Jersey statute that

prohibited the importation of waste which originated or was

collected outside the territorial limits of the State of New

Jersey).    Nor is this a case in which out-of-state waste is

subject to increased fees or surcharges above and beyond those

charged against similar waste generated inside the State of

Illinois.   See Chemical Waste Management, Inc. v. Hunt, 504 U.S.

334, 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992) (which invalidated

an Alabama statute that imposed higher fees on hazardous waste

disposed of in Alabama landfills which originated outside Alabama

than fees charged to similar waste that originated inside the

state).    See also Oregon Waste Systems, Inc. v. Department of


                                  7
Environmental Quality of the State of Oregon, 511 U.S. 93, 128 L.

Ed. 2d 13, 114 S. Ct. 1345 (1994) (which held Oregon's statute

imposing a surcharge on out-of-state waste disposal that was

almost three times greater than the surcharge on in-state waste

violated the commerce clause).

     This case involves a now defunct statutory scheme that

subjected those who wanted to accept waste from outside a local

unit of government to siting approval while subjecting those who
wanted to accept waste from only a local entity to that local

entity's zoning laws.   None of the cases cited by petitioners

gave the improperly restricted party such a choice.   See

Northeast Sanitary Landfill, Inc. v. South Carolina Department of

Health & Environmental Control, 843 F. Supp. 100 (D.S.C. 1992);

Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of

Natural Resources, 504 U.S. 353, 119 L. Ed. 2d 139, 112 S. Ct.

2019 (1992); Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed.

2d 475, 98 S. Ct. 2531 (1978); Associated Industries of Missouri

v. Lohman, 511 U.S. 641, 128 L. Ed. 2d 639, 114 S. Ct. 1815

(1994); New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 100

L. Ed. 2d 302, 108 S. Ct. 1803 (1988); C&A Carbone, Inc. v. Town

of Clarkstown, 511 U.S. 383, 128 L. Ed. 2d 399, 114 S. Ct. 1677

(1994).

     Under both the prior and current statutory schemes,

petitioners could have applied for a permit to construct and


                                 8
operate a facility with the capacity to accept waste from

anywhere, be it waste that originated inside or outside a local

geographic area.   This court has previously stated, when

analyzing the prior statutory scheme, that "it is the applicant

who defines the intended service area, not the local decision-

making body."   Metropolitan Waste Systems, Inc. v. Pollution

Control Board, 201 Ill. App. 3d 51, 55, 558 N.E.2d 785, 787

(1990).   The Board ultimately found that, considering the
statutory scheme which allows an entity to choose its service

area, "the slight burden the permit imposes on interstate

commerce does not outweigh the benefits that the permittees and

the Village of Bradley enjoyed when the facility was

established."   We agree.

     Not every exercise of state power with some impact on

interstate commerce is invalid.       Edgar v. Mite Corp., 457 U.S.

624, 640, 73 L. Ed. 2d 269, 282, 102 S. Ct. 2629, 2639 (1982).

When a siting requirement applies evenhandedly, "and has only an

incidental impact on interstate commerce, the relevant inquiry is

whether or not it effects a legitimate public interest, and if

so, whether any burden on interstate commerce is 'clearly

excessive in relation to the putative local benefits.'" (Emphasis

in original.)   LaFarge Corp. v. Campbell, 813 F. Supp. 501, 513

(N.D. Tex. 1993), quoting Pike v. Bruce Church, Inc., 397 U.S.

137, 142, 25 L. Ed. 2d 174, 178, 90 S. Ct. 844, 847 (1970).


                                  9
Undoubtedly, the regulation of solid waste disposal for the

protection of public health and safety is a legitimate

governmental purpose.    L&H Sanitation, Inc. v. Lake City

Sanitation, Inc., 769 F. 2d 517 (8th Cir. 1984).

     The Board acts in its quasi-judicial capacity when reviewing

an Agency's decision to grant or deny a permit.      Environmental

Protection Agency v. Pollution Control Board, 308 Ill. App. 3d

741, 721 N.E.2d 723 (1999).    A court of review will uphold a
quasi-judicial determination unless it is contrary to the

manifest weight of the evidence.      Environmental Protection Agency

v. Pollution Control Board, 308 Ill. App. 3d at 748; Community

Landfill Co. v. Pollution Control Board, 331 Ill. App. 3d 1056,

772 N.E.2d 231 (2002).

     Again, despite petitioners' arguments to the contrary, this

is not a case of unconstitutional economic protectionism.     This

case involves a private entity that made a choice to forego the

siting process more than 12 years ago when it had that option.

That ceased to be an option days after petitioners received their

operating permit.   Knowing that every pollution control facility

similar to the one petitioners seek to operate must acquire

siting approval, petitioners now effectively request that they be

grandfathered in to the new statutory scheme and allowed to

ignore the siting process.    The Agency and the Board correctly

recognized that granting petitioners' request would violate the


                                 10
Act's siting requirement.    415 ILCS 5/39(c) (West 2004).

    II. Unconstitutional Vagueness of Special Condition No. 9

     Petitioners contend that Special Condition No. 9 is

unconstitutionally vague and, therefore, violates their due

process rights under the United States and State of Illinois

Constitutions.   Specifically, they claim that the condition fails

to "provide fair warning of what conduct is prohibited."

     Special Condition No. 9 provides that: "No waste generated
outside the municipal boundaries of the Village of Bradley may be

accepted at this facility."    This could not be more clear.

     Petitioners argue that the terms "generated" and "municipal

boundaries" are subject to so many interpretations that the

Agency can engage in "selective enforcement" depending on which

interpretation it favors.    The Agency and Board counter that

petitioners have had no trouble understanding or interpreting the

condition for 10 years, which belies "any feigned confusion by

United Disposal."    The Board and Agency further argue that

petitioners have waived this argument as they failed to timely

bring it.

     In reply to the Agency and Board's waiver argument,

petitioners contend that the ability of the Agency "to argue

waiver was waived by the Agency when it responded [to] the

petitioners' vagueness argument in the summary judgment briefing

before the Board."    Turnabout is fair play.


                                 11
     The waiver rule, of course, is a limitation on the parties

and not upon the jurisdiction of a reviewing court.     Freedom Oil

Co. v. Pollution Control Board, 275 Ill. App. 3d 508, 655 N.E.2d

1184 (1995).   We will address petitioners' vagueness argument.

     A regulation is unconstitutionally vague and violates due

process if it leaves the community regulated unsure of what

conduct is prohibited or fails to provide adequate guidelines to

the administrative body charged with its enforcement.    Smith v.
Goguen, 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974).

That is not the case in this situation.   As the Board notes,

petitioners had no problem deciphering the condition for 10

years.   Petitioners seemed to clearly understand the terms when

they applied for a permit that did not require siting approval.

Neither the term "generated" nor the term "municipal boundaries"

is so perplexing as to leave one wondering what is prohibited.

We hold Special Condition No. 9 is not void for vagueness.

         III. Denial of Application in Violation of the Act

     Petitioners contend that "no violation of the Act" would

have occurred if the Agency had granted their request and as such

it was error to deny it.   This contention piggybacks petitioners'

original argument that the prior statutory scheme from which

Special Condition No. 9 was created violated the commerce clause

and, as such, any restriction imposed by the state under that

scheme is void as it was based upon an unconstitutional state


                                 12
enactment.   See Papasan v. Allain, 478 U.S. 265, 92 L. Ed. 2d

209, 106 S. Ct. 2932 (1986).    Petitioners continue that given the

Tennsv decision, any condition imposed under the parts of the Act

declared unconstitutional by the Tennsv court are invalid.         We

disagree.    As noted in part ID above, we do not find that Special

Condition No. 9 was the result of unconstitutional economic

protectionism.    Clearly, granting petitioners' application

notwithstanding petitioners' failure to acquire (or even seek)
siting approval would violate the Act.      See 415 ILCS 5/39(c)

(West 2004).

                 IV. Untimely Reply to Application in
                   Violation of Agency's Regulations

     Petitioners' final contention is that their request should

have been granted by operation of law since the Agency's response

to their application was untimely.      The applicable section of the

Administrative Code provides that "if the Agency fails to notify

the applicant within *** 30 days after the receipt of an

application for an operating permit [ ] that the application is

incomplete, and of the reasons, the application shall be deemed

to have been filed on the date received by the Agency."      35 Ill.

Adm. Code '807.205(f) (1985).

     The Board acknowledged that the Agency issued its response

to petitioners' application 45 days after it was filed and the

response was therefore untimely.       Furthermore, the Board upheld



                                  13
the Agency's denial of "United Disposal's request as incomplete."

 An administrative agency cannot ignore it's own rules once they

have been established pursuant to statutory authority.   Margolin

v. Public Mutual Fire Insurance Co., 4 Ill. App. 3d 661, 281

N.E.2d 728 (1972); Panhandle Eastern Pipe Line Co. v.

Environmental Protection Agency, 314 Ill. App. 3d 296, 734 N.E.2d

18 (2000).   Having failed to inform petitioners that their

application was incomplete and "of the reasons" why within the
time prescribed by section 801.205(f), the Agency undoubtedly

failed to comply with its own rules.

     This does not mean, however, that the application should

have automatically been granted by operation of law as

petitioners suggest.   While petitioners make this claim, they

cite no authority to support it.

     Given that section 40 of the Act states that "the decision

of the Board shall be based exclusively on the record before the

Agency including the record of the hearing, if any" (415 ILCS

5/40(d) (West 2004)), and the Agency's action of ignoring its own

rule which resulted in its failure to conduct a technical review

of petitioners' application, our initial inclination would be to

remand this cause to the Agency to perform a technical review of

the application as filed.   That, however, is unnecessary.

     There is no doubt that the Act has always required siting

approval to develop and operate the type of pollution control


                                14
facility sought by petitioners.    See 415 ILCS 5/39(c), 39.2 (West

1992).    There is also no doubt from the record that petitioners

never obtained (or even sought) proper siting approval.    As such,

the only action the Agency could have taken had it performed a

technical review would have been to deny the application.

     The Administrative Code states that "the Agency shall not

grant any permit *** unless the applicant submits adequate proof

that the solid waste management site *** will be developed,
modified, or operated so as not to cause a violation of the Act

or the Rules."    35 Ill. Adm. Code '807.207(a) as amended by 20

Ill. Reg. 12457 (eff. August 15, 1996).    Following the Agency's

denial of their application, on appeal to the Board the

petitioners needed to "establish that [granting their

application] would not result in any future violation of the

Act."    Browning-Ferris Industries of Illinois, Inc. v. Pollution

Control Board, 179 Ill. App. 3d 598, 603, 534 N.E.2d 616, 620

(1989).    This petitioners cannot do, as they have failed to

acquire siting approval.

                              CONCLUSION

     For the foregoing reasons, the decision of the Illinois

Pollution Control Board is confirmed.

     Confirmed.

     HOLDRIDGE and McDADE, JJ., concur.




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