{
  "id": 3180276,
  "name": "THE ENVIRONMENTAL PROTECTION AGENCY, Appellant, v. THE POLLUTION CONTROL BOARD et al. (Waste Management, Inc., Appellee)",
  "name_abbreviation": "Environmental Protection Agency v. Pollution Control Board",
  "decision_date": "1986-12-19",
  "docket_number": "No. 63062",
  "first_page": "65",
  "last_page": "72",
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    "judges": [],
    "parties": [
      "THE ENVIRONMENTAL PROTECTION AGENCY, Appellant, v. THE POLLUTION CONTROL BOARD et al. (Waste Management, Inc., Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nWaste Management, Inc. (WMI), applied to the Environmental Protection Agency (the Agency) for an operating permit to open a new hazardous-waste-disposal trench at its Environmental Sanitary Landfill, Inc. (ESL), site in Elwood, Illinois. WMI also applied for 599 supplemental permits to dispose of certain hazardous-waste products, known as supplemental waste streams, into the trench. Finally, WMI applied for an operating permit to install a new groundwater-monitoring network to surround the ESL site. The Agency issued the operating permit for the groundwater-monitoring network subject to numerous conditions which WMI found objectionable, but denied both the operating permit for the new trench and the supplemental-waste-stream permits.\nWMI sought review of the Agency\u2019s actions before the Pollution Control Board (the Board) pursuant to section 40 of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1040). The Board struck certain conditions attached to the groundwater-monitoring permit, and ordered the Agency to issue an operating permit for the trench and the 599 supplemental-waste-stream permits. The Agency appealed directly to the appellate court pursuant to section 41 of the Act (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1041). The appellate court affirmed the Board\u2019s order. (138 Ill. App. 3d 550.) We granted the Agency\u2019s petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315).\nThe issues presented for review are: (1) whether the Board is bound to apply the manifest-weight-of-the-evidence standard in reviewing Agency decisions denying permit applications; (2) if not, whether the Board\u2019s findings that the Agency erred in denying the permits were contrary to the manifest weight of the evidence; (3) whether the appellate court erroneously interpreted the Act as tolerating some groundwater pollution provided that the site is not inherently unmanageable; and (4) whether the Board erred in striking certain conditions that the Agency attached to the groundwater-monitoring permit.\nThe Agency contends that its decision denying a permit must be affirmed on. the Board\u2019s review under section 40 of the Act unless it is contrary to the manifest weight of the evidence. The Agency asserts that by not requiring the Board to apply the manifest-weight-of-the-evidence standard, the appellate court relegated the Agency to a fact-gathering or investigative agency and thereby usurped its function by making the Board the permit-granting authority. In support of this argument, the Agency cites this court\u2019s decision in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541. The Agency, however, misapprehends our decision. Landfill concerned the validity of certain rules of the Board which allowed third parties to institute proceedings to revoke a permit that the Agency had previously granted. In Landfill, this court noted that the Act established two administrative agencies with distinct functions in the overall regulatory scheme:\n\u201cThe Board\u2019s principal function is to adopt regulations defining the requirements of the permit system (Ill. Rev. Stat. 1975, ch. 111\u00bd, pars. 1005(b), 1039). The Agency\u2019s role is to determine whether specific applicants are entitled to permits (Ill. Rev. Stat. 1975, ch. 111\u00bd, par. 1039). *** If the Board were to become involved as the overseer of the Agency\u2019s decision-making process through evaluation of challenges to permits, it would become the permit-granting authority, a function not delegated to the Board by the Act.\nThe one statutory exception to the Board\u2019s quasi-legislative role in relation to permits is in instances in which the Agency has denied a permit (Ill. Rev. Stat. 1975, ch. 111\u00bd, pars. 1005(d), 1040). Explicit procedural requisites are established for Board review of permit denials (Ill. Rev. Stat. 1975, ch. 111\u00bd, par. 1040), and Agency appearance at such permit-denial hearings is mandated (Ill. Rev. Stat. 1975, ch. 111\u00bd, par. 1004(f)).\u201d 74 Ill. 2d 541, 557.\nUnlike the situation this court addressed in Landfill, the case at bar involves the Board\u2019s review of the Agency\u2019s denial of a permit. Consequently, this case falls squarely within the \u201cone statutory exception to the Board\u2019s quasi-legislative role in relation to permits\u201d that was referred to in Landfill. In like cases, it is the Board, not the Agency, which must determine whether a permit should issue. In Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, this court again found that the Board must determine whether, in such cases, a permit should issue.\nThe Agency also relies upon cases holding that the Board must apply the manifest-weight standard in reviewing a local governing body\u2019s decision granting or refusing to grant approval for a facility\u2019s location under section 39.2 (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1039.2). The Agency has failed, however, to analyze or even discuss the applicability of those cases to the Board\u2019s review of the Agency\u2019s decision denying a permit under section 39 (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1039). We find those cases inapposite. The permit process under sections 39(a) and 40(a)(1) (Ill. Rev. Stat. 1983, ch. 111\u00bd, pars. 1039(a), 1040(a)(l)) differs from the process of local governmental approval of site locations under sections 39.2 and 40.1 (Ill. Rev. Stat. 1983, ch. 111\u00bd, pars. 1039.2, 1040.1). Section 39.2(d) requires the local governing body to hold at least one public hearing which forms the basis for any appeal of the decision to the Board under section 40.1 (Ill. Rev. Stat. 1983, ch. 111\u00bd, pars. 1039.2(d), 1040.1(a), (b)). This hearing must be transcribed. Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1040.1(a).\nUnlike the procedures required under sections 39.2 and 40.1, the permit process under sections 39(a) and 40(a)(1) does not require the Agency to conduct any hearing. Consequently, no procedures, such as cross-examination, are available for the applicant to test the validity of the information the Agency relies upon in denying its application. As the appellate court noted, the procedure before the Agency has none of the characteristics of an adversary proceeding. The safeguards of a due process hearing are absent until the hearing before the Board. We therefore agree with the appellate court\u2019s holding that the Board is not required to apply the manifest-weight test to its review of the Agency\u2019s decision denying a permit.\nThe appellate court properly recognized that its duty under section 41(b) of the Act (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1041(b)) was to evaluate all the evidence in the record, and to determine whether the Board\u2019s findings that the evidence did not support the denial of the permits were contrary to the manifest weight of the evidence. The court did not reweigh the evidence or substitute its judgment for that of the Board. Instead, it conducted a thorough and independent review of the record and concluded that the Board\u2019s determinations were not contrary to the manifest weight of the evidence.\nOur responsibility in reviewing the judgment of the appellate court, as was that of the appellate court in reviewing the findings and conclusions of the Board, is to evaluate all of the evidence to determine whether the Board\u2019s findings were against the manifest weight of the evidence. Having conducted our own review of the evidence in the record, we agree with the appellate court\u2019s holding that while there is some conflict in the evidence, the Board\u2019s decision is not contrary to the manifest weight of the evidence.\nNext, the Agency asserts that the appellate court erroneously interpreted the Act as tolerating some groundwater pollution as long as the site is not inherently unmanageable. Contrary to the Agency\u2019s contention, the Board did not find ESL to be a leaking landfill. The Board merely held that \u201cthe preponderance of professional testimony, especially by those who conducted independent studies, indicates that the site\u2019s characteristics are not such that it is inherently unmanageable ***.\u201d (Emphasis in original.) Moreover, the Agency, in disregard of Rule 341(e)(7) of this court (103 Ill. 2d R. 341(e)(7)), fails to cite any authority for its assertion of error. We therefore find the Agency\u2019s argument to be without merit.\nThe final issue presented is whether the Board erred in striking certain conditions that the Agency attached to the groundwater-monitoring permit. The Agency criticizes the appellate court for upholding the Board\u2019s decision which ordered the Agency to remove certain conditions and requirements in the groundwater-monitoring permit which WMI found objectionable. The Agency fails, however, to even specify which stricken conditions it seeks to place in issue, stating in its brief: \u201cThere is no need to discuss these permit conditions in detail. No case law exists specifically supporting or undermining any particular condition.\u201d Moreover, the Agency again fails to cite any authority for its assertion of error. Instead, the Agency argues in conclusory fashion that it presented ample evidence to support its conditions and that the conditions were within its broad scope of authority to impose conditions on permits.\nHaving conducted our own review of these conditions, we agree with the appellate court, which affirmed the Board\u2019s finding that the conditions imposed usurped the Board\u2019s rule-making authority, the public\u2019s right to participation, and WMI\u2019s due process right to contest findings which would trigger administrative action.\nFor the foregoing reasons, the judgment of the appellate court is affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "JUSTICE MORAN"
      }
    ],
    "attorneys": [
      "Neil F. Hartigan, Attorney General, of Springfield (Roma J. Stewart, Solicitor General, and Robert E. Davy, Jr., Assistant Attorney General, of Chicago, of counsel), for the appellant.",
      "Dixie L. Laswell and Andrew H. Perellis, of Gessler, Wexler, Flynn, Laswell & Fleischmann, Ltd., of Chicago, for appellee Waste Management, Inc."
    ],
    "corrections": "",
    "head_matter": "(No. 63062.\nTHE ENVIRONMENTAL PROTECTION AGENCY, Appellant, v. THE POLLUTION CONTROL BOARD et al. (Waste Management, Inc., Appellee).\nOpinion filed December 19, 1986.\nNeil F. Hartigan, Attorney General, of Springfield (Roma J. Stewart, Solicitor General, and Robert E. Davy, Jr., Assistant Attorney General, of Chicago, of counsel), for the appellant.\nDixie L. Laswell and Andrew H. Perellis, of Gessler, Wexler, Flynn, Laswell & Fleischmann, Ltd., of Chicago, for appellee Waste Management, Inc."
  },
  "file_name": "0065-01",
  "first_page_order": 75,
  "last_page_order": 82
}