# Alternate Fuels, Inc. v. Director of Illinois Environmental Protection Agency

> Illinois Supreme Court · June 16, 2005 · 215 Ill. 2d 219

URL: https://www.frixlaw.com/law-library/cases/9541268

## Case

- **Full name:** ALTERNATE FUELS, INC., Appellee, v. DIRECTOR OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY Et Al., Appellants
- **Court:** Illinois Supreme Court
- **Decided:** June 16, 2005
- **Citations:** 215 Ill. 2d 219; 294 Ill. Dec. 32; 830 N.E.2d 444
- **Precedential status:** Published
- **Opinion:** Dissent by Freeman
- **Judges:** Fitzgerald, Freeman, McMorrow, Kilbride
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541268

## How later opinions describe it (automated extraction)

- holding that an agency’s statements did not qualify as rules because “[s]uch statements do not affect private rights or procedures available to specific entities outside the Agency”

## Opinion text

JUSTICE FREEMAN, dissenting:
I believe that rehearing ought to have been granted in this case, for two reasons. First, the membership of this court changed between the issuance of the original opinion and the disposition of the petition for rehearing. Justice Rarick, a member of the majority, retired and was replaced by Justice Karmeier. Because the six remaining participants in the original decision split 3-3 on what action to take on the petition, it was necessary for Justice Karmeier to vote on the petition for rehearing to break the deadlock. Given that a justice was required to begin participating in the case at the petition for rehearing stage, I believe we ought to have granted the petition, in order to have the benefit of full briefing and discussion of the issues in the case, and specifically those concerns raised in the petition for rehearing. I see no harm in at least requesting a response from AFI before taking action, but the majority declines to take even this minor step.
Second, this is not a case in which the petition for rehearing was of no weight, or raised concerns already adequately addressed by the original majority opinion. A comparison of the original disposition and the opinion as modified on denial of rehearing reveals that the majority extensively modified its opinion in response to the EPA’s arguments upon rehearing. I do not intend to fault the majority for taking the petition for rehearing seriously; quite the contrary. But the fact that the majority found such extensive revisions and additions to be necessary serves to underscore my position that the better approach would have been to grant the petition for rehearing, in order to have the benefit of full briefing and discussion of the issues.
Finally, I note that the petition was filed more than six months ago — and thus, the majority’s choice to foreclose additional briefing and argument cannot even claim the relatively minor virtue of speedy disposition of the petition.
The above observations would be true even if I agreed with the majority that the modifications adequately dealt with the petition. I do not. I feel compelled to note the flaws in the majority’s modifications not only to the justiciability issue, upon which I originally dissented in this case, but also on the modifications to the majority’s discussion of the merits of the case.
On the justiciability issue, the majority has inserted on denial of rehearing the suggestion that AFI and its predecessor have been “attempting to get a formal determination of the definition of ‘waste’ under the Act for now over 10 years” (215 Ill. 2d at 236-37). This overstates the case a bit, in my opinion. AFI has known the Agency’s position, that the materials it was processing are “waste,” since 1994. AFI simply does not like the Agency’s position, and has been berating the Agency to change its position, for 10 years. The majority’s statement also fails to take into account that AFI’s predecessor withdrew its 1994 appeal, rather than attempting to obtain a ruling from the Board, calling the 10-year mark further into question.
Regarding the merits of the case, the majority now simply assumes what it purports to have proven. The central question is whether the empty plastic fertilizer containers which AFI was processing are “waste” within the meaning of the statute. The majority concludes, and I agree, that the containers are “waste” only if they are “discarded materials.” 215 Ill. 2d at 239-40. The majority looks at the definition of “recycling, reclamation, or reuse,” and determines that materials are not “discarded” if they are instead “ ‘collected, separated or processed and returned to the economic mainstream in the form of raw materials or products.’ ” 215 Ill. 2d at 240, quoting 415 ILCS 5/3.380 (West 2002). I also agree with this further step. Further, there is no question that AFI “collected” and “processed” the plastic containers. So the only issue, on the merits, is whether the materials in question are “returned to the economic mainstream in the form of raw materials or products.”
But having finally reached the bedrock question, the majority replaces analysis with assumption. The majority simply states as fact, with no analysis whatsoever, that by shredding the plastic containers and selling the shreds to Illinois Power to be burned for energy recovery, AFI is returning the materials to the economic mainstream as a “product.” 215 Ill. 2d at 240. The majority does not spare a moment’s reflection on whether plastic chips sold solely for combustive fuel ought to be characterized as “products” in the “economic mainstream.” The conclusion is far from obvious to me. On rehearing the EPA strongly disputed this conclusion, noting that combustion of waste for energy recovery is not recycling. See 215 Ill. 2d at 241, quoting 415 ILCS 20/2.1 (West 2002). The EPA argues that if Illinois Power is not recycling when it performs the combustion of waste, neither can AFI be recycling when it processes what would otherwise be waste in order to make it more suitable for combustion and sells it to Illinois Power for combustion. (If the containers AFI is processing are “returned to the economic mainstream in the form of raw materials or products,” then AFI is recycling, by the definition upon which the majority relies. See 415 ILCS 5/3.380 (West 2002).) This is a forceful and logical point, but the majority sidesteps it via the circuitous logic of stating that it is irrelevant, because the majority has already concluded (one page before) that the materials in question are not “waste.”
In the original opinion, the majority did not analyze whether AFI was returning the materials to the economic mainstream as products because it mistakenly believed that the EPA did not dispute this fact. But now that the EPA has made it clear, on rehearing, that the majority was mistaken, and the EPA does indeed dispute this characterization of AFI’s operations, some analysis must be undertaken. It is, after all, the only issue in the case.
It is worth recalling that this case comes before us on appeal from a summary judgment in a declaratory judgment action. Because the factual characterization of the materials is at issue, it might be appropriate to take additional — that is, any — evidence, which would require reversal and remand. This highlights, in my mind, the impropriety of allowing AFI to bring this action in the first instance. Because the EPA has never even brought an enforcement action against AFI, the case is still in the investigatory stages. The EPA might not at this time have any evidence bearing on the question of whether the shredded plastic chips AFI sells to Illinois Power are “products,” but since the EPA has never even brought formal charges against AFI, it can hardly be faulted for this state of affairs. It is like allowing a suspect to challenge the basis for his prosecution, when he has merely been brought in for questioning and asked not to leave town, and not even an indictment has yet been issued against him.
I still believe that this case — a challenge to a “violation notice,” a mere precursor to a formal charging document — ought never to have been considered by an Illinois court, for the reasons set out in my original dissent and in this court’s unanimous opinion in National Marine. I also believe, however, that if the case is to be taken, we must address the issues raised, rather than assuming them away. Finally, at the very least, we ought to have the issues fully briefed when a petition for rehearing raises serious points and a new member of the court is forced to participate in the case for the first time at the rehearing stage. Accordingly, I would vote to grant rehearing, and I respectfully dissent from the majority’s conclusion to deny rehearing as modified.
JUSTICE KILBRIDE joins in this dissent on denial of rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541268. Public record. Not legal advice.