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E&E Hauling, Inc. v. Forest Preserve Dist. of DuPage County, Ill.

Citation: 17 ELR 21168
No. No. 86-1425, 821 F.2d 433/26 ERC 1033/(7th Cir., 06/09/1987) Aff'd in part, vacated & remanded in part

The court holds that an ordinance enacted by a local forest district to increase the percentage of revenues that the operator of a sanitary landfill must pay to the government pursuant to a contract is preempted by the Illinois Environmental Protection Act (IEPA), but another ordinance restricting the volume and origin of the waste accepted by the landfill may not be preempted. After initially holding that the district court properly declined to abstain from deciding state law claims, the court holds that the IEPA preempts the ordinance increasing the government's share of revenues, since the IEPA prohibits non-home-rule units such as the forest district from regulating sanitary landfills. That the Illinois legislature has conferred upon local governments specific authority to participate in limited ways in the state's environmental protection scheme does not indicate that the legislature intended to allow non-home-rule units to regulate sanitary landfills generally. Defendant forest district's enactment of the revenue ordinance does not come within any "market participant" exception to the preemption doctrine because defendant acted as a market regulator by unilaterally imposing additional conditions on plaintiff landfill operator in violation of the parties' contract. The court then holds that portions of the ordinance dealing with the volume and origin of waste may have been authorized by previous agreements between the parties, and therefore may be valid. The court remands the case to the district court for a determination of whether, and to what extent, the volume and origin ordinance is valid on the basis of previous agreements.

[The district court opinion appears at 16 ELR 20593.]

Counsel for Defendant-Counter-Plaintiff-Appellant
Richard A. Makarski
Chapman & Cutler
111 W. Monroe St., Chicago IL 60603
(312) 845-3000

Counsel for Plaintiff-Counter-Defendant-Appellee
Barry Sullivan
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.