Martell v. Mauzy

No. 81-C-0285 (N.D. Ill. April 17, 1981)

ELR Digest

The court rules that the State of Illinois' failure to provide an adjudicatory hearing prior to denial of a landfill operating permit deprived plaintiffs of procedural due process. A recently approved amendment to the Illinois Environmental Protection Act authorizes the state Environmental Protection Agency to deny a permit to operate a solid waste management site if a landfill owner or operator has a history of repeated violations of federal, state, or local laws or regulations in the operation of refuse disposal sites or facilities. Prior to enactment of this provision, a permit to operate a landfill was issued automatically if a permit to develop a new or modify an existing landfill had been properly issued for the same site. Plaintiffs, a sanitary landfill corporation in Cook County, Illinois, were denied a permit to operate additional waste disposal trenches after they had already been granted a permit to develop those trenches. Denial of plaintiffs' permit was based upon the owner's alleged history of repeated legal violations in the operation of refuse disposal sites, none of which involved determinations of wrongdoing by the owner reached after an evidentiary hearing. Plaintiffs alleged that the lack of a pre-denial hearing to contest the unadjudicated charges deprived them of protected property and liberty interests without due process in violation of the Fourteenth Amendment of the United States Constitution. The court first rejects defendants' contentions that plaintiffs should have exhausted their state court remedies prior to commencing this action and that the doctrine of abstention should apply. Turning to the merits, the court rules that the Fourteenth Amendment's procedural due process protections of notice and an opportunity to be heard apply because plaintiffs (1) have a legitimate claim of entitlement to the operating permit which was created and defined by the statute and mutually explicit understandings and (2) have a possessory property interest in the landfill site since defendants' actions have curtailed the only possible use of the land. Further, plaintiffs have a protected interest in which due process requires an opportunity to refute the allegations of impropriety. The court next determines that the lack of a pre-denial hearing deprived plaintiffs of due process because (1) the private interests at stake must be afforded maximum protection and (2) the risk of erroneous deprivation of plaintiffs' interests is substantial. Moreover, the statute's post-denial review procedures are constitutionally inadequate in that they fail to provide for a prompt post-denial hearing and disposition. Accordingly, the court orders issuance of a temporary operating permit pending a hearing at which plaintiffs are allowed an opportunity to answer, rebut, or contest the allegations that formed the basis for denial of the operating permit application.

The full text of this opinion is available from ELR (33 pp. $4.75, ELR Order No. C-1247).

Counsel for Plaintiffs
George J. Cotsirilos
George J. Cotsirilos & Assoc., Ltd.
33 N. Dearborn St., Rm. 930, Chicago IL 60602
(312) 263-0345

Counsel for Defendants
Tyrone Fahner, Attorney General; Anne Rapkin, Philip L. Willman, Judith S. Goddie
23d Floor, 188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Kocoras, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]