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White Fence Farm, Inc. v. Land & Lakes Co.

Citation: 12 ELR 20051
No. No. 16673, 424 N.E.2d 1370/16 ERC 1477/99 Ill. App. 3d 234, (Ill. App. Ct., 08/20/1981)

The court upholds the dismissal of a challenge to the Illinois Environmental Protection Agency's (IEPA's) grant of a sanitary landfill permit because appellant failed to exhaust its administrative remedies. The court holds that § 31(b) of the Illinois Environmental Protection Act provides appellant an administrative remedy by allowing a complaint to be filed with the Illinois Pollution Control Board against any person threatening pollution; this avenue must be pursued before judicial relief may be sought under § 45(b) of the Act.The court rejects appellant's contention that IEPA's lack of jurisdiction to issue the permit relieved appellant of the requirement to exhaust its administrative remedies. Although the permit application did not contain all the data required by the board's rules, this defect did not deprive the IEPA of jurisdiction. The board's powers under the Act do not include defining the jurisdiction of the IEPA, and the regulations themselves demonstrate no intent to limit the IEPA's jurisdiction. Finally, although the Act does not allow a third-party attack on the granting of a landfill permit, the court holds that appellant is not left without a remedy in violation of its rights under the Illinois and United States Constitutions. A complaint to the board under § 31(b) is an effective administrative remedy.

Counsel for Appellant
David Lincoln Ader
Ader & Ader
11 S. LaSalle St., Suite 903, Chicago IL 60603
(312) 726-4904

Counsel for Appellees
John F. Ward Jr., Michael W. Ward
O'Keefe, Ashenden & Lyons
One First Nat'l Plaza, Suite 5100, Chicago IL 60603
(312) 621-0400

Tyrone C. Fahner, Attorney General; Kenneth G. Anspach, Ass't Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

TRAPP, P.J., and GREEN, J., concur.