expressly agreeing with the appellate court’s conclusion that local regulation of a sanitary landfill was preempted by the IEPA
How later courts described this case
- expressly agreeing with the appellate court’s conclusion that local regulation of a sanitary landfill was preempted by the IEPA
- Illinois’ Environmental Protection Act held to pre-empt local regulation of sanitary landfills
Written by the judges who cited it.
The opinion
Supplemental Opinion On Denial of Rehearing
Several amicus curiae briefs have been filed in connection with the petition for rehearing in this case. The new issues raised, as well as the importance of the basic question, have prompted us to file this supplemental opinion.
The Attorney General has filed an amicus brief on behalf of the Environmental Protection Agency. This brief concentrates upon two sections of the Act which authorize the Pollution Control Board to adopt regulations. Section 27 applies generally to all regulations, and provides:
“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of *** surrounding land uses, zoning classifications, the nature of the existing air quality, ***.” (Ill. Rev. Stat. 1973, ch. 111½, par. 1027.)
The other section which the Agency emphasizes is section 22, which relates specifically to refuse disposal, and authorizes the Board to adopt regulations, which among other matters may prescribe:
“(a) Standards for the location, design, construction, sanitation, operation, maintenance, and discontinuance of the operation of refuse collection and disposal sites and facilities; ***.” (Ill. Rev. Stat. 1973, ch. 111½, par. 1022.)
It is the position of the Agency that the Pollution Control Board has not adopted any standards “whereby the Environmental Protection Agency can make rational decisions regarding location of sanitary landfills” and that authority to govern their location may therefore be exercised only by local government units.
Several considerations persuade us that this position must be rejected. Rule 316 of the Board’s solid waste regulations requires that an application to the Environmental Protection Agency for a development permit for a sanitary landfill contain, among other things, a legal description of the proposed site, maps of the site and of the area within a quarter mile of its boundaries showing the location of waterways, surface drains and “land use and population density of the proposed sanitary landfill site and of the area surrounding the site within one mile of the site boundaries.” It thus appears that the Board has complied with its statutory duty.
Moreover, we deal in this case with the issuance of a permit for a sanitary landfill. Such a permit must relate to a specific site. With respect to the issuance of permits the Act provides:
“The Agency shall adopt such procedures as are necessary to carry out its duties under this Section. In granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board hereunder.” (Ill. Rev. Stat. 1973, ch. 111½, par. 1039.)
A condition which makes a permit for a sanitary landfill upon a specific parcel of land subject to local zoning ordinances or other locally imposed conditions is not, in our opinion, consistent with the basic purpose of the Act — to “establish a unified, state-wide program supplemented by private remedies” (Ill. Rev. Stat. 1973, ch. 11 PA, par. 1002(b)).
The agency also argues that it “has no authority to adopt substantive regulations regarding the location of sanitary landfills.” But as we have pointed out, a sanitary landfill permit must be issued for a specific site, and the Board’s regulations require that the application for a permit contain detailed information concerning surrounding land uses and conditions. The Agency thus has before it the information necessary to enable it to determine the suitability of the location of a proposed sanitary landfill.
An amicus curiae brief upon rehearing was also filed on behalf of the City of Chicago. That brief relies upon section 2(a)(iv) of the Act, which provides:
“The General Assembly finds:
* * *
(iv) that it is the obligation of the State Government to manage its own activites so as to minimize environmental damage; to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act; to promote the development of technology for environmental protection and conservation of natural resources; and in appropriate cases to afford financial assistance in preventing environmental damage.” (Italics supplied.)
By concentrating solely upon the italicized clause and disregarding its context, the city is able to perceive a legislative grant of “concurrent jurisdiction over environmental matters within the municipal boundaries of Chicago, with the State regulations setting the minimum permissible standards.” This, in our opinion, is a misreading of the provision, which appears to relate to State assistance in the elimination of pollution problems stemming from the activities of the local governments themselves. In any event the clause is a part of a legislative finding as to the duties of the State. It is not a grant of authority to units of local government. And certainly there is in the italicized words no grant of power to local governments to impose requirements more stringent than those imposed by the State.
The opinion of the appellate court in this case recites the history of earlier legislative efforts to achieve environmental control, and continues:
“The original draft of the Environmental Protection Act was introduced on April 17, 1970, at the 76th General Assembly as House Bill 3788. Both in its original form and as amended, prior to being sent to the Senate for consideration, section 45(b) of the bill provided that apolitical subdivision could enact and enforce measures for the control, prevention, abatement or punishment of air or water pollution, or any other environmental damage. This subsection further provided that upon a proper showing to the Pollution Control Board a political subdivision could be certified as the agency with primary responsibility for such matters within its jurisdiction, although the Board and the Environmental Protection Agency would retain their full authority to exercise their respective functions within that certified subdivision. Thus, as sent to the Senate, House Bill 3788 expressly reserved to local public entities the power to enact concurrent legislation concerning those subjects included within its scope.” (25 Ill. App. 3d at 321-22.)
But the powers thus reserved to local public entities were subsequently eliminated from the Act, and efforts to restore them were defeated. (Senate Journal, 76th General Assembly, May 28, 1970, at 4797-4800, Amend. Nos. 13 and 14.) Both the original provision and the rejected Senate amendments 13 and 14 authorized municipal regulations “at least as stringent as the corresponding provisions of this Act and of regulations thereunder.”
The simple fact is that the Act does not contain the grant of municipal authority that the city would like to have it contain. Such a grant of authority was deliberately deleted by the General Assembly, and the General Assembly deliberately refused to put it back. The Environmental Protection Agency has not been authorized to confer upon municipalities the power that the General Assembly refused to give them. We agree with the appellate court’s conclusion which states:
“It is clear from the Environmental Protection Act itself, its legislative history, and preceding legislation in the same area that the General Assembly intended to thereby exclude any authority of local political entities which could interfere with or frustrate the objective of establishing a unified state-wide system of environmental protection.” 25 Ill. App. 3d at 322.