13
back from other excavations to the Roscoe Quarry
site. The IEPA conducted two site investigations at
the Roscoe Quarry, the fi rst inspection in July of 2004
and the second inspection on October 4, 2004. At
the time of the October inspection, the IEPA observed
over 150 cubic yards of concrete debris with protrud-ing
rebar that fi lled low-lying areas of the quarry and
a debris pile containing steel conduit. In addition,
approximately 9,700 cubic yards of landscape debris
were piled northwest of the concrete debris. The
landscape debris resembled “an island with a moat”
and stood 10 to 13 feet high. Some of the landscape
material had been on the property for more than ten
years. An access road surrounded a large pile of
trees, which was in turn surrounded by more land-scape
debris. Trees at the site were not processed
in any way. In fact, trees at the base of the mounds
of landscape debris showed signs of decay. Fur-thermore,
the position of the trees did not change
between the July and October inspections.
NISC did not contest the alleged violation of Section
21(p)(7) of the Act, which prohibits the open dump-ing
of waste resulting in the deposition of general or
clean construction or demolition debris. Accordingly,
the Board found that NISC had committed that viola-tion.
NISC did contest the alleged Section 21(p)(1)
violation, arguing that the landscape debris could be
used as mulch, and that it therefore had value and
was not “waste” or “litter.”
The Board ruled that the pile of landscape material
was “waste,” both because it constituted “landscape
waste,” a subset of “waste,” and “other discarded ma-terial,”
and that the pile constituted “litter” and found a
violation of Section 21(p)(1) of the Act.
On January 26, 2007, the Board found that because
there were two violations of Section 21(p)(1) of the
Act a total civil penalty of $3,000 was assessed along
with hearing costs totaling $672.75.
Court Decision
The court, interpreting the Illinois Supreme Court’s
decision in Alternate Fuels, Inc. v. Director of the
Illinois Environmental Protection Agency, 215 Ill. 2d
219, 237-38 (2004), held that the trees were “dis-carded
material” within the Act’s defi nition of “waste.”
The court found there was no evidence presented
that the trees had ever been “collected, separated
or processed and returned to the economic main-stream
in the form of raw materials or products.” 415
ILCS 5/3.380. The court noted that the testimony
indicated that the trees showed evidence of decay
and did not change position between the July and
October inspections. The trees “were not processed.
They were just laid there to rot.” In addition, NISC
admitted that trees were present at the site when it
acquired the property 10 years ago and that it had
been placing trees on the site ever since. The court
concluded that the uprooted, dead trees on NISC’s
property fall within the defi nition of waste as other
discarded material. NISC, 885 N.E.2d at 451-52.
The court rejected NISC’s argument that trees are
not “waste” because they are unlike other items spe-cifi
cally mentioned in the defi nition of “waste,” such
as “garbage” and “sludge from a waste treatment
plant.” NISC, 885 N.E.2d at 452. The court stated
that
The trees did not appear in the Roscoe Quarry
naturally; rather, NISC uprooted whole trees and
hauled them to a pile in the Roscoe Quarry in the
course of its excavation business. Put another
way, the trees were ‘generated [in that they were
uprooted] and discarded [in that they were placed
in a pile and left to decay] by people.’ Indeed, at
least some portion of the trees had been present
for over 10 years. Therefore, we fi nd that, under
the facts presented, unlike the leaves in Lake
Forest, the uprooted trees here are ‘of the same
nature as garbage or sludge which is generated
and discarded by people.’“ Lake Forest, 146 Ill.
App. 3d at 855.” NISC, 885 N.E.2d at 452.
The court then stated that it need not reach the issue
of whether the trees qualifi ed as “landscape waste”
under the Act because the court had already con-cluded
that the trees were “other discarded material”
within the meaning of “waste.” Id. The court quoted
the defi nition of “litter” contained in the Litter Control
Act, 415 ILCS 105/3(a) (2006), and then concluded
that “the trees fall within the defi nition of litter as
‘any discarded, used or unconsumed substance or
waste.’” Id., NISC, 885 N.E.2d at 453.
Pollution Control Facility Siting Appeals
The Act provides, in Sections 39(c) and 39.2, for local
government participation in the siting of new pollu-tion
control facilities. 415 ILCS 5/39(c), 39.2 (2006).
Section 39(c) requires an applicant requesting a
permit for the development or construction of a new
pollution control facility to provide proof that the local
government has approved the location of the pro-posed
facility. Section 39.2 provides for proper notice
and fi ling, public hearings, jurisdiction and time limits,
and specifi c criteria that apply when the local gov-ernment
considers an application to site a pollution
control facility. The decision of the local government
may be contested before the Board under Section
40.1 of the Act. 415 ILCS 5/40.1 (2006).
The Board reviews the decision to determine if the
local government’s procedures satisfy principles of
fundamental fairness and whether the decision on
