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Official Reports","paragraph_id":"para_1"},{"text":"Appellate Court","paragraph_id":"para_2"},{"text":"Solid Waste Agency of Lake County v. Zion Landfill, Inc.,","paragraph_id":"para_3"},{"text":"2026 IL App (2d) 250024","paragraph_id":"para_4"},{"text":"Appellate Court","paragraph_id":"para_5"},{"text":"Caption","paragraph_id":"para_6"},{"text":"THE SOLID WASTE AGENCY OF LAKE COUNTY and THE","paragraph_id":"para_7"},{"text":"COUNTY OF LAKE, ILLINOIS, Plaintiffs-Appellants, v. ZION","paragraph_id":"para_8"},{"text":"LANDFILL, INC., Defendant-Appellee.","paragraph_id":"para_9"},{"text":"District & No. Second District","paragraph_id":"para_10"},{"text":"No. 2-25-0024","paragraph_id":"para_11"},{"text":"Filed January 29, 2026","paragraph_id":"para_12"},{"text":"Decision Under","paragraph_id":"para_13"},{"text":"Review","paragraph_id":"para_14"},{"text":"Appeal from the Circuit Court of Lake County, No. 22-MR-423; the","paragraph_id":"para_15"},{"text":"Hon. Charles W. Smith, Judge, presiding.","paragraph_id":"para_16"},{"text":"Judgment Affirmed.","paragraph_id":"para_17"},{"text":"Counsel on","paragraph_id":"para_18"},{"text":"Appeal","paragraph_id":"para_19"},{"text":"Eric F. Rinehart, State’s Attorney, of Waukegan (Karen D. Fox,","paragraph_id":"para_20"},{"text":"Assistant State’s Attorney, of counsel), and Derke J. Price and Mary","paragraph_id":"para_21"},{"text":"Jean Dolan, of Ancel Glink, P.C., of Chicago, for appellants.","paragraph_id":"para_22"},{"text":"Philip L. Comella and Ryan G. Rudich, of Taft Stettinius & Hollister","paragraph_id":"para_23"},{"text":"LLP, of Chicago, for appellee.","paragraph_id":"para_24"},{"text":"Panel JUSTICE MULLEN delivered the judgment of the court, with","paragraph_id":"para_25"},{"text":"opinion.","paragraph_id":"para_26"},{"text":"Justices Hutchinson and Birkett concurred in the judgment and","paragraph_id":"para_27"},{"text":"opinion.","paragraph_id":"para_28"},{"text":"- 2 -","paragraph_id":"para_29"},{"text":"OPINION","paragraph_id":"para_30"},{"text":"¶ 1 I. INTRODUCTION","paragraph_id":"para_31"},{"text":"¶ 2 Plaintiffs, the Solid Waste Agency of Lake County (SWALCO) and Lake County, appeal","paragraph_id":"para_32"},{"text":"the judgment of the circuit court of Lake County, finding that defendant, Zion Landfill, Inc.,","paragraph_id":"para_33"},{"text":"was exempt from paying fees on certain material brought into the landfill (tipping fees). This","paragraph_id":"para_34"},{"text":"appeal presents two primary issues. First, the parties disagree on whether materials used by","paragraph_id":"para_35"},{"text":"defendant to cover waste and to construct internal roadways are subject to the tipping fee.","paragraph_id":"para_36"},{"text":"Second, the parties dispute whether material certified as “non-special” by the generator of the","paragraph_id":"para_37"},{"text":"material—meaning it is no longer subject to additional handling and record-keeping","paragraph_id":"para_38"},{"text":"requirements—is still “pollution control waste,” which is exempt from the tipping fee. For the","paragraph_id":"para_39"},{"text":"reasons that follow, we affirm.","paragraph_id":"para_40"},{"text":"¶ 3 II. BACKGROUND","paragraph_id":"para_41"},{"text":"¶ 4 Defendant operates a landfill in Lake County. SWALCO is an intergovernmental agency","paragraph_id":"para_42"},{"text":"formed by agreement in accordance with the Local Solid Waste Disposal Act (415 ILCS 10/1","paragraph_id":"para_43"},{"text":"et seq. (West 2022)). Lake County is a member of SWALCO. Defendant’s landfill falls within","paragraph_id":"para_44"},{"text":"the territorial jurisdiction of plaintiffs. James Lewis began working for defendant in 1995 and","paragraph_id":"para_45"},{"text":"was the general manager of the landfill from 2000 until 2020. Walter Willis has been the","paragraph_id":"para_46"},{"text":"executive director of SWALCO since 2007.","paragraph_id":"para_47"},{"text":"¶ 5 Defendant’s landfill accepts material from various sources. Generally, tipping fees are","paragraph_id":"para_48"},{"text":"payable to the Illinois Environmental Protection Agency (IEPA) on waste taken into the","paragraph_id":"para_49"},{"text":"landfill. Local government, such as SWALCO, is also authorized to impose similar fees on","paragraph_id":"para_50"},{"text":"such waste. There are several statutory exemptions to these fees. In this case, defendant uses","paragraph_id":"para_51"},{"text":"wood chips to cover waste (alternate daily cover) and to construct roads within and around its","paragraph_id":"para_52"},{"text":"landfill (road base). The wood chips must meet certain size specifications, and, in most cases,","paragraph_id":"para_53"},{"text":"defendant either purchases them or pays a fee for their delivery to the site. Defendant also uses","paragraph_id":"para_54"},{"text":"what it terms “recycled” aggregate materials—including asphalt, crushed concrete, and","paragraph_id":"para_55"},{"text":"bricks—as road base. The issue presented is whether these materials are “waste” that is subject","paragraph_id":"para_56"},{"text":"to a tipping fee payable to SWALCO. The IEPA is not a party to this case.","paragraph_id":"para_57"},{"text":"¶ 6 Before proceeding further, it would be helpful to explain the statutory and administrative","paragraph_id":"para_58"},{"text":"framework controlling the issues before us. Section 3.535 of the Environmental Protection Act","paragraph_id":"para_59"},{"text":"(Act) (415 ILCS 5/3.535 (West 2022)) defines “waste,” in pertinent part, as “garbage *** or","paragraph_id":"para_60"},{"text":"other discarded material.” Section 22.15(b)(1) of the Act requires owners of landfills that","paragraph_id":"para_61"},{"text":"accept more than 150,000 cubic yards of waste per year, like defendant, to pay to the state’s","paragraph_id":"para_62"},{"text":"Solid Waste Management Fund a fee of $2 per ton of waste they take in. Id. § 22.15(b)(1).","paragraph_id":"para_63"},{"text":"Section 22.15(j) allows units of local government to adopt ordinances imposing fees on waste","paragraph_id":"para_64"},{"text":"that mirror the state fee. Id. § 22.15(j). Plaintiffs adopted such ordinances.","paragraph_id":"para_65"},{"text":"¶ 7 Section 22.15(k) exempts a number of categories of waste from these fees, including","paragraph_id":"para_66"},{"text":"“pollution control waste.” Id. § 22.15(k); see id. § 22.44(c)(2). The Act defines “pollution","paragraph_id":"para_67"},{"text":"control waste” as","paragraph_id":"para_68"},{"text":"“waste generated as a direct or indirect result of the removal of contaminants from the","paragraph_id":"para_69"},{"text":"air, water or land, and which pose a present or potential threat to human health or to","paragraph_id":"para_70"},{"text":"- 3 -","paragraph_id":"para_71"},{"text":"the environment or with inherent properties which make the disposal of such waste in","paragraph_id":"para_72"},{"text":"a landfill difficult to manage by normal means.” Id. § 3.335.","paragraph_id":"para_73"},{"text":"Section 3.475(c) states that “pollution control waste” is a subcategory of “special waste.” Id.","paragraph_id":"para_74"},{"text":"§ 3.475(c). Special waste is subject to more stringent handling and record-keeping","paragraph_id":"para_75"},{"text":"requirements. See 35 Ill. Adm. Code 809.Subpart D; see also 35 Ill. Adm. Code 811.Subpart","paragraph_id":"para_76"},{"text":"D. The responsibility of classifying waste falls on the generator of the waste. See 35 Ill. Adm.","paragraph_id":"para_77"},{"text":"Code 808.121(a) (2010) (“Each person who generates waste shall determine whether the waste","paragraph_id":"para_78"},{"text":"is a special waste.”). Section 3.475(c)(1) exempts certain types of material that would","paragraph_id":"para_79"},{"text":"otherwise be “pollution control waste” from the category of “special waste.” 415 ILCS","paragraph_id":"para_80"},{"text":"5/3.475(c)(1) (West 2022). Specifically, where the generator of the waste certifies that it does","paragraph_id":"para_81"},{"text":"not fall within any of five categories set forth in section 3.475(c)(1), the material is not","paragraph_id":"para_82"},{"text":"considered “special waste.” Id. § 22.48(a). If such a certification is made, the material need not","paragraph_id":"para_83"},{"text":"be managed as special waste. Id. Also potentially relevant here is section 22.54 of the Act,","paragraph_id":"para_84"},{"text":"which allows a material normally required to be treated as waste to be managed as non-waste","paragraph_id":"para_85"},{"text":"if it is “used beneficially and in a manner that is protective of human health and the","paragraph_id":"para_86"},{"text":"environment.” Id. § 22.54 (providing for a “Beneficial Use Determination[ ]”).","paragraph_id":"para_87"},{"text":"¶ 8 Also relevant to the issues we face, “alternate daily cover” is material used to cover exposed","paragraph_id":"para_88"},{"text":"waste at the end of a business day. The permit under which defendant operates states that “[a]t","paragraph_id":"para_89"},{"text":"the end of each day of operation all exposed waste shall be covered with” at least six inches of","paragraph_id":"para_90"},{"text":"clean soil or various specified alternative materials (alternate daily cover). The list of","paragraph_id":"para_91"},{"text":"acceptable alternate materials includes petroleum-contaminated soils, wood chips, used","paragraph_id":"para_92"},{"text":"foundry sand, processed landscape waste, and clean construction and demolition debris. The","paragraph_id":"para_93"},{"text":"permit further provides that “[a]reas upon which alternate cover has been used must be covered","paragraph_id":"para_94"},{"text":"with either conventional cover or additional waste within six days.” Further, runoff from the","paragraph_id":"para_95"},{"text":"alternate daily cover must be collected as “leachate,” which is defined as liquid that has been","paragraph_id":"para_96"},{"text":"in contact with “waste.” The permit establishes additional requirements for the use of various","paragraph_id":"para_97"},{"text":"materials.","paragraph_id":"para_98"},{"text":"¶ 9 Thus, we are presented with the following two questions. First, we must decide whether","paragraph_id":"para_99"},{"text":"alternate daily cover and road base constitute “other discarded material,” such that they fall","paragraph_id":"para_100"},{"text":"within the statutory definition of “waste” and, thus, are subject to the Solid Waste Management","paragraph_id":"para_101"},{"text":"Fund fee. Second, we must decide whether waste certified by its generator as “non-special”","paragraph_id":"para_102"},{"text":"loses its status as pollution control waste such that it is no longer exempt from the fee.","paragraph_id":"para_103"},{"text":"¶ 10 Both parties muster extrinsic evidence in support of their interpretations. Plaintiffs point to","paragraph_id":"para_104"},{"text":"a letter from Douglas W. Clay of the IEPA dated April 1, 2009, and a letter from Scott O.","paragraph_id":"para_105"},{"text":"Phillips of the IEPA dated August 12, 2010.","paragraph_id":"para_106"},{"text":"¶ 11 The Clay letter begins by explaining that it is a response to a query by three individuals","paragraph_id":"para_107"},{"text":"representing three local agencies, including Willis of SWALCO. It adds that it is addressing","paragraph_id":"para_108"},{"text":"the question of whether “certain types of waste” are exempt from the fees imposed by sections","paragraph_id":"para_109"},{"text":"22.15 and 22.44 if “they are used as alternate daily cover, intermediate cover and/or road","paragraph_id":"para_110"},{"text":"building material.” It then states:","paragraph_id":"para_111"},{"text":"“As a general rule, use of a waste at a landfill as daily cover, intermediate cover, or","paragraph_id":"para_112"},{"text":"roadbed material does not make the waste exempt from the tipping fees imposed by","paragraph_id":"para_113"},{"text":"Sections 22.15(b), 22.12(j) and 22.44(b) of the Act. There is, however, an exception to","paragraph_id":"para_114"},{"text":"this rule: clean construction and demolition debris that is used in accordance with","paragraph_id":"para_115"},{"text":"Section 3.160(b) of the Act is not a waste and therefore not subject to the tipping fees.”","paragraph_id":"para_116"},{"text":"- 4 -","paragraph_id":"para_117"},{"text":"The letter answers several other questions. Pertinent here, it states “No” when asked, “Are","paragraph_id":"para_118"},{"text":"wastes that are used for Alternate Daily Cover Material [alternate daily cover] exempt from","paragraph_id":"para_119"},{"text":"the fees solely because they are used as [alternate daily cover]?” It also responds negatively to","paragraph_id":"para_120"},{"text":"“Are alternate intermediate cover materials or road building materials which are waste (i.e.","paragraph_id":"para_121"},{"text":"general construction or demolition debris, shredded tires or shredded uncontaminated wood)","paragraph_id":"para_122"},{"text":"exempt from fees even if they are ultimately disposed of at the landfill after their use?”","paragraph_id":"para_123"},{"text":"Additionally, using waste as alternate daily cover is not “considered recycling, reclamation or","paragraph_id":"para_124"},{"text":"reuse.” Whether a landfill charges a tipping fee, takes the material for free, or pays for the","paragraph_id":"para_125"},{"text":"material has no bearing on any of these issues.","paragraph_id":"para_126"},{"text":"¶ 12 The Phillips letter states that its purpose is to clarify which materials received by a landfill","paragraph_id":"para_127"},{"text":"are subject to fees under sections 22.15 and 22.44 of the Act. It notes that these sections","paragraph_id":"para_128"},{"text":"“impose State solid waste tipping fees upon non-hazardous waste that is permanently disposed","paragraph_id":"para_129"},{"text":"at a landfill” and that “[s]uch waste includes, but is not limited to, non-hazardous waste","paragraph_id":"para_130"},{"text":"disposed at a landfill via its use as daily cover or roadbed material as approved in the landfill’s","paragraph_id":"para_131"},{"text":"permit.” It notes that certain material is exempt from such fees, including pollution control","paragraph_id":"para_132"},{"text":"waste. It further recognizes that materials for which there has been a beneficial use","paragraph_id":"para_133"},{"text":"determination are not waste and therefore not subject to the fee and adds that such material","paragraph_id":"para_134"},{"text":"“includes, but is not limited to, material used at a landfill as daily cover or roadbed material","paragraph_id":"para_135"},{"text":"pursuant to a beneficial use determination” so long as the use is provided for in the landfill’s","paragraph_id":"para_136"},{"text":"operating permit.","paragraph_id":"para_137"},{"text":"¶ 13 Extrinsic evidence that supports defendant’s position exists as well, specifically: the","paragraph_id":"para_138"},{"text":"deposition testimony and affidavit of James Lewis regarding a conversation he had with an","paragraph_id":"para_139"},{"text":"IEPA employee (Jan Zanitella); a letter from Michael F. Nechvatal of the IEPA dated January","paragraph_id":"para_140"},{"text":"6, 2004; and a second letter from Nechvatal dated January 25, 2005. Defendant also points to","paragraph_id":"para_141"},{"text":"the legislature’s failure to enact legislation proposed by SWALCO in 2012 and the IEPA’s","paragraph_id":"para_142"},{"text":"discontinuance of an enforcement action against defendant in 2020.","paragraph_id":"para_143"},{"text":"¶ 14 At his deposition, Lewis, who had been defendant’s general manager since 2000 and its","paragraph_id":"para_144"},{"text":"employee since 1995, testified regarding a conversation he had with Zanitella. Lewis explained","paragraph_id":"para_145"},{"text":"that Zanitella was the “state auditor, the fee auditor.” In the late 1990s, she told him not to","paragraph_id":"para_146"},{"text":"include material used as alternate daily cover as waste on quarterly reports. Lewis believed","paragraph_id":"para_147"},{"text":"that this guidance had been put in writing, though he had been unable to locate such a","paragraph_id":"para_148"},{"text":"document.","paragraph_id":"para_149"},{"text":"¶ 15 In January 2004, Nechvatal authored a letter (the Nechvatal letter) directed to Rose","paragraph_id":"para_150"},{"text":"Wagehoft of Brickyard Disposal & Recycling in Vermilion County. He stated that the letter","paragraph_id":"para_151"},{"text":"was a response to her inquiry regarding “whether contaminated soil that is used as an alternate","paragraph_id":"para_152"},{"text":"daily cover material is subject to the solid waste tipping fees described in Sections 22.15 and","paragraph_id":"para_153"},{"text":"22.44 of the Illinois Environmental Protection Act.” He explained that contaminated soil that","paragraph_id":"para_154"},{"text":"“meets the Act’s definition of ‘pollution control waste’ ” is “exempt from the tipping fees","paragraph_id":"para_155"},{"text":"pursuant to Sections 22.15(k)(2) and 22.44(c)(2) of the Act, regardless of whether it is used as","paragraph_id":"para_156"},{"text":"daily cover.” He clarified, “The pollution control waste exemption applies even if the","paragraph_id":"para_157"},{"text":"contaminated soil is certified by the generator not to be a special waste; the certified waste is","paragraph_id":"para_158"},{"text":"still pollution control waste.” Further, he noted, “Uncontaminated soil is not a waste and is","paragraph_id":"para_159"},{"text":"also not subject to the tipping fees.” In response to a series of questions from Waste","paragraph_id":"para_160"},{"text":"Management, Nechvatal authored a second letter (the second Nechvatal letter) clarifying a few","paragraph_id":"para_161"},{"text":"points. Pertinent here, he explained that all pollution control waste, not just contaminated soil,","paragraph_id":"para_162"},{"text":"- 5 -","paragraph_id":"para_163"},{"text":"is exempt from the tipping fee, regardless of whether the generator certifies it as non-special","paragraph_id":"para_164"},{"text":"waste. He also stated, when asked for the effective date for landfills to begin applying the fee","paragraph_id":"para_165"},{"text":"exemption, that “[d]eciding when and how to apply the tipping fee exemption is a business","paragraph_id":"para_166"},{"text":"decision that landfill operators will have to make.”","paragraph_id":"para_167"},{"text":"¶ 16 In 2012, SWALCO supported passage of a bill that would amend sections 22.15 and 22.44","paragraph_id":"para_168"},{"text":"to remove pollution control waste from the specified materials to which the fee exemption","paragraph_id":"para_169"},{"text":"applied. The amendments were not adopted. In an e-mail dated July 23, 2020, Willis explained","paragraph_id":"para_170"},{"text":"to two legislators that “SWALCO, frustrated with IEPA’s response to enforcing its 2009 letter,","paragraph_id":"para_171"},{"text":"attempted to pass legislation to get rid of all the exemptions in the Act” but “[t]he waste","paragraph_id":"para_172"},{"text":"industry was able to stop us.” It additionally noted, “We also had very little if any support from","paragraph_id":"para_173"},{"text":"the [IEPA] on the bill.”","paragraph_id":"para_174"},{"text":"¶ 17 On December 19, 2019, the IEPA issued a violation notice to defendant and a number of","paragraph_id":"para_175"},{"text":"other landfills. The notice sent to defendant alleged two violations. First, it asserted that","paragraph_id":"para_176"},{"text":"defendant failed to pay tipping fees on 114,498 tons of waste in the amount of $254,185.56 for","paragraph_id":"para_177"},{"text":"material used as alternate daily cover and road base between January 1, 2016, and December","paragraph_id":"para_178"},{"text":"31, 2018. Second, it alleged that defendant failed to maintain adequate records related to the","paragraph_id":"para_179"},{"text":"tipping fee exemption.","paragraph_id":"para_180"},{"text":"¶ 18 Defendant provided a formal response to the notice on May 4, 2020. In its response,","paragraph_id":"para_181"},{"text":"defendant asserted that “waste” and “cover” are “distinct materials treated differently under","paragraph_id":"para_182"},{"text":"the [Act].” “Waste” is discarded material that serves no beneficial purpose. Conversely,","paragraph_id":"para_183"},{"text":"“cover” is defined by regulation as “material that is used to cover compacted solid waste in a","paragraph_id":"para_184"},{"text":"sanitary landfill and that is free of objects that would hinder compaction and free of content","paragraph_id":"para_185"},{"text":"that would be conducive to vector harborage, feeding or breeding.” 35 Ill. Adm. Code 807.104","paragraph_id":"para_186"},{"text":"(1985). “Cover,” as used in the waste industry, “serves as a protective barrier between ‘waste’","paragraph_id":"para_187"},{"text":"and the environment.” Defendant further argued that imposing fees in the manner advocated","paragraph_id":"para_188"},{"text":"by the IEPA would constitute a new rule requiring adherence to the rulemaking procedure,","paragraph_id":"para_189"},{"text":"which had not been followed. Where the rulemaking procedure has not been followed, the rule","paragraph_id":"para_190"},{"text":"at issue is deemed “interpretive” and cannot provide the basis for a penalty. Defendant further","paragraph_id":"para_191"},{"text":"contended that the material it used for road base was not “waste.” It explained that it primarily","paragraph_id":"para_192"},{"text":"used two materials for road base—wood chips and recycled asphalt (it uses smaller amounts","paragraph_id":"para_193"},{"text":"of concrete and bricks as well). The wood chips are processed before defendant uses them.","paragraph_id":"para_194"},{"text":"Wood chips, according to defendant, are “products used for building roads, not discarded waste","paragraph_id":"para_195"},{"text":"materials that serve no beneficial purpose.” Finally, defendant asserted that its record keeping","paragraph_id":"para_196"},{"text":"was adequate.","paragraph_id":"para_197"},{"text":"¶ 19 Following a meeting between defendant and the IEPA, defendant offered a second","paragraph_id":"para_198"},{"text":"response. It stated, “We understand that the Agency, through the Violation Notice, is not","paragraph_id":"para_199"},{"text":"seeking to expand the category of materials subject to the waste fee or to change its positions","paragraph_id":"para_200"},{"text":"on either the application of the Section 22.15(k) exemptions or the distinction between a waste","paragraph_id":"para_201"},{"text":"and a product.” It further stated:","paragraph_id":"para_202"},{"text":"“The Zion VN does not concern contaminated soil. To confirm, contaminated soil is","paragraph_id":"para_203"},{"text":"not subject to the fee because it is used as alternative daily cover and because it","paragraph_id":"para_204"},{"text":"constitutes pollution control waste and hence is exempt from the waste fee under 415","paragraph_id":"para_205"},{"text":"ILCS 22.15(3). Wood chips used as road base materials are not subject to the waste fee","paragraph_id":"para_206"},{"text":"because they are specially manufactured products and because they are authorized for","paragraph_id":"para_207"},{"text":"use as road materials in the facility’s permit.”","paragraph_id":"para_208"},{"text":"- 6 -","paragraph_id":"para_209"},{"text":"It also asserted that defendant has not changed the way it has kept records for 22 years;","paragraph_id":"para_210"},{"text":"however, defendant also proposed altering its record keeping to address the IEPA’s concerns.","paragraph_id":"para_211"},{"text":"¶ 20 On July 10, 2020, the IEPA rescinded its violation notices. In a letter to defendant, it wrote:","paragraph_id":"para_212"},{"text":"“The Illinois EPA has received and reviewed your correspondence related to the above-","paragraph_id":"para_213"},{"text":"referenced Violation Notices (‘the VNs’). In light of the information provided in your","paragraph_id":"para_214"},{"text":"correspondence and other information received to date, no further action in response to","paragraph_id":"para_215"},{"text":"the VNs is necessary at this time.”","paragraph_id":"para_216"},{"text":"In his e-mail of July 23, 2020, Willis stated that he had received a telephone call from an IEPA","paragraph_id":"para_217"},{"text":"representative stating that the IEPA “had questions about the strength of the case and that the","paragraph_id":"para_218"},{"text":"agency was instead going to start talks with the waste industry and put on hold the court","paragraph_id":"para_219"},{"text":"filings.”","paragraph_id":"para_220"},{"text":"¶ 21 Plaintiffs filed the instant declaratory-judgment action on August 30, 2022. The parties","paragraph_id":"para_221"},{"text":"filed cross-motions for summary judgment. In a written ruling, the trial court granted","paragraph_id":"para_222"},{"text":"defendant’s and denied plaintiffs’ motion. It found that as the parties filed cross-motions for","paragraph_id":"para_223"},{"text":"summary judgment, they agreed that no issue of fact existed and were “invit[ing] the court to","paragraph_id":"para_224"},{"text":"decide the issues based on the record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. The central issue,","paragraph_id":"para_225"},{"text":"according to the trial court, was whether the materials at issue constitute “waste.” Plaintiffs","paragraph_id":"para_226"},{"text":"asserted that the materials are “waste” because they have no further useful life, will remain in","paragraph_id":"para_227"},{"text":"the landfill forever, and cannot return to the chain of commerce. Defendant contended that the","paragraph_id":"para_228"},{"text":"materials are not waste because defendant uses them for alternate daily cover and road base.","paragraph_id":"para_229"},{"text":"The trial court also rejected, as contrary to the plain language of the Act, plaintiffs’ contention","paragraph_id":"para_230"},{"text":"that classifying pollution control waste as non-special waste renders the fee exemption","paragraph_id":"para_231"},{"text":"inapplicable. It finally found that “the term waste does not include wood chips and road debris","paragraph_id":"para_232"},{"text":"which is used in the construction of roads within the landfill, or which is used for alternate","paragraph_id":"para_233"},{"text":"daily cover.” Further, pollution control waste is exempt from the fee.","paragraph_id":"para_234"},{"text":"¶ 22 In the course of its ruling, the trial court also noted that both parties could point to","paragraph_id":"para_235"},{"text":"communications from the IEPA in support of their positions. It then observed that despite the","paragraph_id":"para_236"},{"text":"opinion expressed in the Clay letter, the IEPA never sought to recover the tipping fees until it","paragraph_id":"para_237"},{"text":"issued the notice of violation in 2019 and that it abandoned that attempt after reviewing","paragraph_id":"para_238"},{"text":"defendant’s response. The trial court explained:","paragraph_id":"para_239"},{"text":"“The IEPA has been confronted with this issue many times over the past two","paragraph_id":"para_240"},{"text":"decades and has only once, in 2019, commenced an enforcement action only to retreat","paragraph_id":"para_241"},{"text":"from that position. This is a clear indication to this court that the Agency charged with","paragraph_id":"para_242"},{"text":"enforcement of environmental statutes does not consider the material at issue in this","paragraph_id":"para_243"},{"text":"case to be ‘waste’ and that the Defendant’s position is correct that the material is being","paragraph_id":"para_244"},{"text":"recycled and used as Alternative Daily Cover and, thus, exempt from the fees sought","paragraph_id":"para_245"},{"text":"by the Plaintiffs.”","paragraph_id":"para_246"},{"text":"Plaintiffs now appeal.","paragraph_id":"para_247"},{"text":"¶ 23 III. ANALYSIS","paragraph_id":"para_248"},{"text":"¶ 24 On appeal, plaintiffs raise two main issues. First, they contend that materials used by","paragraph_id":"para_249"},{"text":"defendant as alternate daily cover and road base are “waste” within the meaning of the Act and","paragraph_id":"para_250"},{"text":"that tipping fees are due on it. Second, they contend that pollution control waste that has been","paragraph_id":"para_251"},{"text":"certified as non-special by its generator is not exempt from tipping fees. Defendant also","paragraph_id":"para_252"},{"text":"- 7 -","paragraph_id":"para_253"},{"text":"interposes two affirmative defenses—estoppel and laches; however, given our disposition of","paragraph_id":"para_254"},{"text":"this appeal, we need not address them.","paragraph_id":"para_255"},{"text":"¶ 25 Because this appeal comes to us following a grant of summary judgment, our review is","paragraph_id":"para_256"},{"text":"de novo. A court reviewing a grant of summary judgment, construing the record strictly against","paragraph_id":"para_257"},{"text":"the movant and in favor of the party opposing summary judgment, must determine whether no","paragraph_id":"para_258"},{"text":"genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.","paragraph_id":"para_259"},{"text":"Monson v. City of Danville, 2018 IL 122486, ¶ 12.","paragraph_id":"para_260"},{"text":"¶ 26 Both issues raised by plaintiffs turn on the interpretation of various sections of the Act. Our","paragraph_id":"para_261"},{"text":"goal in interpreting a statute is to ascertain and give effect to the intention of the legislature.","paragraph_id":"para_262"},{"text":"Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1041","paragraph_id":"para_263"},{"text":"(2010). The best indicator of that intent is the language of the statute itself. Abruzzo v. City of","paragraph_id":"para_264"},{"text":"Park Ridge, 231 Ill. 2d 324, 332 (2008). If a statute is clear and unambiguous, a court must","paragraph_id":"para_265"},{"text":"give effect to its plain language, without resorting to other aids of construction. Hobby Lobby","paragraph_id":"para_266"},{"text":"Stores, Inc. v. Sommerville, 2021 IL App (2d) 190362, ¶ 20. In determining the intent of the","paragraph_id":"para_267"},{"text":"legislature, a court must consider “statutes in their entirety, their purposes, the problems they","paragraph_id":"para_268"},{"text":"target, and the goals they seek to achieve.” Abruzzo, 231 Ill. 2d at 332. Furthermore, “Words","paragraph_id":"para_269"},{"text":"and phrases should not be interpreted in isolation, but must be construed in light of other","paragraph_id":"para_270"},{"text":"relevant provisions of the statute.” Id. at 333. While we are not bound by an administrative","paragraph_id":"para_271"},{"text":"agency’s interpretation of a statute, a court “will give substantial weight and deference to an","paragraph_id":"para_272"},{"text":"interpretation of an ambiguous statute by the agency charged with the administration and","paragraph_id":"para_273"},{"text":"enforcement of the statute.” Abrahamson v. Illinois Department of Professional Regulation,","paragraph_id":"para_274"},{"text":"153 Ill. 2d 76, 97-98 (1992).","paragraph_id":"para_275"},{"text":"¶ 27 A. Is Alternate Daily Cover and Road Base “Waste”?","paragraph_id":"para_276"},{"text":"¶ 28 “It is an old saying that one person’s trash is another one’s treasure.” Allegra Helfenstein,","paragraph_id":"para_277"},{"text":"Comment, U.S. Controls on International Disposal of Hazardous Waste, 22 Int’l Law, 775,","paragraph_id":"para_278"},{"text":"775 (1988). In this case, trash would mean revenue for the taxing body. Section 22.15(b)(1) of","paragraph_id":"para_279"},{"text":"the Act requires the owner of a landfill to pay a fee on each ton of “waste” it takes in. 415 ILCS","paragraph_id":"para_280"},{"text":"5/22.15(b)(1) (West 2022). The parties disagree as to whether materials used by defendant as","paragraph_id":"para_281"},{"text":"alternate daily cover and road base are “waste” and therefore subject to tipping fees. Plaintiffs","paragraph_id":"para_282"},{"text":"contend that the plain meaning of the term “waste” as used in the Act indicates that materials","paragraph_id":"para_283"},{"text":"deposited permanently in a landfill constitute “waste.” Defendant counters by pointing to the","paragraph_id":"para_284"},{"text":"plain language of the Act, as well as to extrinsic evidence (various IEPA interpretations and","paragraph_id":"para_285"},{"text":"conduct that support defendant’s position), without first demonstrating that there is some","paragraph_id":"para_286"},{"text":"ambiguity in the statutory scheme that requires the resort to such evidence.","paragraph_id":"para_287"},{"text":"¶ 29 As a threshold matter, we must determine whether some ambiguity pertinent to the issues","paragraph_id":"para_288"},{"text":"in this case exists. We begin with the statutory definition of “waste”:","paragraph_id":"para_289"},{"text":"“ ‘Waste’ means any garbage, sludge from a waste treatment plant, water supply","paragraph_id":"para_290"},{"text":"treatment plant, or air pollution control facility or other discarded material, including","paragraph_id":"para_291"},{"text":"solid, liquid, semi-solid, or contained gaseous material resulting from industrial,","paragraph_id":"para_292"},{"text":"commercial, mining and agricultural operations, and from community activities, but","paragraph_id":"para_293"},{"text":"does not include solid or dissolved material in domestic sewage, or solid or dissolved","paragraph_id":"para_294"},{"text":"materials in irrigation return flows, or coal combustion by-products as defined in","paragraph_id":"para_295"},{"text":"Section 3.135, or industrial discharges which are point sources subject to permits under","paragraph_id":"para_296"},{"text":"Section 402 of the Federal Water Pollution Control Act, as now or hereafter amended,","paragraph_id":"para_297"},{"text":"- 8 -","paragraph_id":"para_298"},{"text":"or source, special nuclear, or by-product materials as defined by the Atomic Energy","paragraph_id":"para_299"},{"text":"Act of 1954, as amended (68 Stat. 921) or any solid or dissolved material from any","paragraph_id":"para_300"},{"text":"facility subject to the Federal Surface Mining Control and Reclamation Act of 1977","paragraph_id":"para_301"},{"text":"(P.L. 95-87) or the rules and regulations thereunder or any law or rule or regulation","paragraph_id":"para_302"},{"text":"adopted by the State of Illinois pursuant thereto.” (Emphasis added.) Id. § 3.535.","paragraph_id":"para_303"},{"text":"The parties do not argue that the materials at issue here are “garbage” or any of the other items","paragraph_id":"para_304"},{"text":"specifically listed in section 3.535; therefore, we must ascertain the meaning of the catch-all","paragraph_id":"para_305"},{"text":"provision, “other discarded material.” To constitute “waste,” the material used by defendant","paragraph_id":"para_306"},{"text":"must be “other discarded material.” Thus, to determine whether “waste” is ambiguous, we must","paragraph_id":"para_307"},{"text":"consider whether “other discarded material” is ambiguous.","paragraph_id":"para_308"},{"text":"¶ 30 Two cases discussed by the parties are pertinent to our inquiry, neither of which held “other","paragraph_id":"para_309"},{"text":"discarded material” to be ambiguous: Alternate Fuels, Inc. v. Director of the Illinois","paragraph_id":"para_310"},{"text":"Environmental Protection Agency, 215 Ill. 2d 219 (2004), and People ex rel. Madigan v.","paragraph_id":"para_311"},{"text":"Lincoln, Ltd., 383 Ill. App. 3d 198 (2008). In Alternate Fuels, the issue relevant to this case","paragraph_id":"para_312"},{"text":"was whether material produced by Alternate Fuels, Inc. (AFI), constituted “waste” under the","paragraph_id":"para_313"},{"text":"Act, such that AFI was required to obtain a permit from the IEPA (Agency). Alternate Fuels,","paragraph_id":"para_314"},{"text":"215 Ill. 2d at 222. The material “consisted of various types of plastics generated by the","paragraph_id":"para_315"},{"text":"shredding of empty agricultural chemical containers into chips approximately one inch in size.”","paragraph_id":"para_316"},{"text":"Id. “Prior to shredding, a company named Tri-Rinse, Inc., ‘triple rinsed’ the containers","paragraph_id":"para_317"},{"text":"according to United States Environmental Protection Agency and Department of Agriculture","paragraph_id":"para_318"},{"text":"guidelines to remove residual agricultural chemicals.” Id. AFI would sell the “chips to Illinois","paragraph_id":"para_319"},{"text":"Power for use as fuel at its Baldwin Power Station.” Id. The Agency asserted that “all materials","paragraph_id":"para_320"},{"text":"burned for energy recovery retained their classification as waste under the Act and that a","paragraph_id":"para_321"},{"text":"facility receiving this material would require a permit from the Agency.” Id. The trial court","paragraph_id":"para_322"},{"text":"determined that the materials in question had not been “discarded” so they were not “waste.”","paragraph_id":"para_323"},{"text":"¶ 31 On appeal, the supreme court considered the definition of “discarded material.” Id. at 237.","paragraph_id":"para_324"},{"text":"The Agency maintained “that the term ‘discarded’ should be construed from the perspective","paragraph_id":"para_325"},{"text":"of the supplier, such that a material is considered discarded if it is used for a purpose other than","paragraph_id":"para_326"},{"text":"that originally intended by the generator of the material.” Id. AFI argued that “when the phrase","paragraph_id":"para_327"},{"text":"‘discarded material’ is read in conjunction with section 3.380 of the Act (415 ILCS 5/3.380","paragraph_id":"para_328"},{"text":"(West 2002)),” it is apparent that the material at issue is not “discarded” and therefore not","paragraph_id":"para_329"},{"text":"“waste.” Id.","paragraph_id":"para_330"},{"text":"¶ 32 The supreme court first noted that the definition of “waste” as “other discarded material”","paragraph_id":"para_331"},{"text":"focuses on the material itself without regard to who purportedly discarded the material.","paragraph_id":"para_332"},{"text":"(Emphasis and internal quotation marks omitted.) Id. at 239. It therefore rejected the Agency’s","paragraph_id":"para_333"},{"text":"assertion that “discarded” should be assessed from the perspective of the generator of the","paragraph_id":"para_334"},{"text":"material. Id. Having previously invoked the principle that “words and phrases should not be","paragraph_id":"para_335"},{"text":"construed in isolation, but must be interpreted in light of other relevant provisions of the","paragraph_id":"para_336"},{"text":"statute” (id. at 238), the court turned to section 3.380, upon which AFI was relying, for","paragraph_id":"para_337"},{"text":"guidance regarding the meaning of “discarded”:","paragraph_id":"para_338"},{"text":"“ ‘ “Recycling, reclamation or reuse” means a method, technique, or process designed","paragraph_id":"para_339"},{"text":"to remove any contaminant from waste so as to render such waste reusable, or any","paragraph_id":"para_340"},{"text":"process by which materials that would otherwise be disposed of or discarded are","paragraph_id":"para_341"},{"text":"collected, separated or processed and returned to the economic mainstream in the form","paragraph_id":"para_342"},{"text":"- 9 -","paragraph_id":"para_343"},{"text":"of raw materials or products.’ ” (Emphasis omitted.) Id. at 239 (quoting 415 ILCS","paragraph_id":"para_344"},{"text":"5/3.380 (West 2002)).","paragraph_id":"para_345"},{"text":"It noted:","paragraph_id":"para_346"},{"text":"“Under this phrasing the legislature has categorized items that may be recycled,","paragraph_id":"para_347"},{"text":"reclaimed, or reused into two main categories: (1) ‘waste’ from which contaminants","paragraph_id":"para_348"},{"text":"may be removed and (2) ‘materials.’ 415 ILCS 5/3.380 (West 2002). ‘Materials’ are","paragraph_id":"para_349"},{"text":"further subdivided into those that are ‘discarded’ and those ‘materials that would","paragraph_id":"para_350"},{"text":"otherwise be disposed of or discarded [which] are collected, separated or processed and","paragraph_id":"para_351"},{"text":"returned to the economic mainstream in the form of raw materials or products.’ 415","paragraph_id":"para_352"},{"text":"ILCS 5/3.380 (West 2002). While the legislature has not defined ‘discarded materials,’","paragraph_id":"para_353"},{"text":"the legislature has mentioned what it is not: ‘materials that would otherwise be disposed","paragraph_id":"para_354"},{"text":"of or discarded [which] are *** returned to the economic mainstream in the form of","paragraph_id":"para_355"},{"text":"raw materials and products.’ Thus, materials are ‘discarded’ unless they are returned to","paragraph_id":"para_356"},{"text":"the economic mainstream.” Id. at 240.","paragraph_id":"para_357"},{"text":"The final sentence of this quote, read in isolation, suggests that the supreme court held that all","paragraph_id":"para_358"},{"text":"material that has not been returned to the economic mainstream is discarded material. In","paragraph_id":"para_359"},{"text":"context, it is apparent that the final sentence was a reference to the facts of that case in light of","paragraph_id":"para_360"},{"text":"AFI’s argument that section 3.380’s definition of “discarded” informed the interpretation of","paragraph_id":"para_361"},{"text":"what the term meant in the statutory definition of “waste.” That is, under section 3.380, the","paragraph_id":"para_362"},{"text":"only way the plastic containers at issue in Alternate Fuels could have been deemed waste is if","paragraph_id":"para_363"},{"text":"they had not been returned to the economic mainstream.","paragraph_id":"para_364"},{"text":"¶ 33 The penultimate sentence in the quotation explains that the legislature has specified that","paragraph_id":"para_365"},{"text":"“discarded materials” are not materials that are “returned to the economic mainstream.” It does","paragraph_id":"para_366"},{"text":"not follow that all materials not returned to the economic mainstream are discarded. From the","paragraph_id":"para_367"},{"text":"proposition, “all cats are not dogs,” one can infer that “if it is a dog, then it is not a cat”;","paragraph_id":"para_368"},{"text":"however, it does not follow that “if it is not a dog, then it is a cat.” Similarly, something that","paragraph_id":"para_369"},{"text":"has been returned to the economic mainstream has not been discarded, but saying something","paragraph_id":"para_370"},{"text":"has not been returned to the mainstream encompasses the possibility that it has been discarded","paragraph_id":"para_371"},{"text":"as well as a myriad of other possibilities. For example, the cloth saved for mending has little","paragraph_id":"para_372"},{"text":"prospect of being returned to the economic mainstream in any meaningful way, yet it cannot","paragraph_id":"para_373"},{"text":"be said to be “discarded” in any usual sense of the word. Therefore, we read the final sentence","paragraph_id":"para_374"},{"text":"in the quotation from Alternate Fuels set forth above as a response to AFI’s argument","paragraph_id":"para_375"},{"text":"concerning section 3.380 and not as a general pronouncement that only those materials that","paragraph_id":"para_376"},{"text":"have been returned to the economic mainstream are not discarded. Put differently, being","paragraph_id":"para_377"},{"text":"returned to the economic mainstream is a sufficient, but not necessary, condition for material","paragraph_id":"para_378"},{"text":"to avoid being deemed discarded.","paragraph_id":"para_379"},{"text":"¶ 34 Defendant argues that, like the containers in Alternate Fuels, the wood chips (and other","paragraph_id":"para_380"},{"text":"materials) are “collected, processed, and returned to the economic mainstream” as useful and","paragraph_id":"para_381"},{"text":"necessary products for defendant’s operations. Clearly, however, the materials used by","paragraph_id":"para_382"},{"text":"defendant as alternate daily cover or road base are not “returned to the economic mainstream”","paragraph_id":"para_383"},{"text":"in the same manner as the plastic containers that were rinsed, shredded, and then sold by AFI","paragraph_id":"para_384"},{"text":"to Illinois Power. As such, those materials cannot avoid being deemed discarded if that","paragraph_id":"para_385"},{"text":"question turns on whether they have been returned to the economic mainstream. But, as","paragraph_id":"para_386"},{"text":"explained, the holding in Alternate Fuels does not end our inquiry, as the possibility remains","paragraph_id":"para_387"},{"text":"open that the materials here are otherwise not discarded material.","paragraph_id":"para_388"},{"text":"- 10 -","paragraph_id":"para_389"},{"text":"¶ 35 The parties also point to Lincoln, 383 Ill. App. 3d 198, another case concerning the","paragraph_id":"para_390"},{"text":"definition of “waste” under the Act. In Lincoln, the defendants operated a business that","paragraph_id":"para_391"},{"text":"accepted material that it eventually “mounded into a pile spanning over 26 acres and 70 feet in","paragraph_id":"para_392"},{"text":"height.” Id. at 199-200. They claimed that they intended to use the mound to construct an “all-","paragraph_id":"para_393"},{"text":"seasons downhill skiing and snowboarding facility.” Id. at 200. The defendants argued that","paragraph_id":"para_394"},{"text":"various exceptions removed the mound from the definition of “waste,” including that the","paragraph_id":"para_395"},{"text":"material had been “separated or processed and returned to the economic mainstream in the","paragraph_id":"para_396"},{"text":"form of raw materials or products.” See 415 ILCS 5/3.160(b) (West 2006). After the trial court","paragraph_id":"para_397"},{"text":"granted partial summary judgment, the defendants filed an interlocutory appeal pursuant to","paragraph_id":"para_398"},{"text":"Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994), certifying the following question:","paragraph_id":"para_399"},{"text":"“ ‘Whether clean construction and demolition debris deposited onto the land for the","paragraph_id":"para_400"},{"text":"purpose of providing the infrastructure for a recreational facility to be built at the site","paragraph_id":"para_401"},{"text":"and to be used for snow skiing/snow boarding (facts which are undisputed for purposes","paragraph_id":"para_402"},{"text":"of the August 4, 2007 partial summary judgment order) constitutes “waste” under the","paragraph_id":"para_403"},{"text":"Illinois Environmental Protection Act and requires a permit in compliance with the","paragraph_id":"para_404"},{"text":"Act’s waste disposal requirements including but not limited to 415 ILCS 5/3.305, 415","paragraph_id":"para_405"},{"text":"ILCS 5/21 et seq., 415 ILCS 5/21.1 and 35 Ill. Adm. Code 812.101(a).’ ” Lincoln, 383","paragraph_id":"para_406"},{"text":"Ill. App. 3d at 203.","paragraph_id":"para_407"},{"text":"Clean construction debris is excepted from the definition of “waste” under section 3.160 if it","paragraph_id":"para_408"},{"text":"is “separated or processed and returned to the economic mainstream in the form of raw","paragraph_id":"para_409"},{"text":"materials or products.” 415 ILCS 5/3.160(b) (West 2006).","paragraph_id":"para_410"},{"text":"¶ 36 The Lincoln court, after determining the material did not meet the statutory requirement","paragraph_id":"para_411"},{"text":"that it be “separated or processed” (415 ILCS 5/3.160(b) (West 2006)), addressed whether the","paragraph_id":"para_412"},{"text":"material the defendant had accumulated had been “returned to the economic mainstream.”","paragraph_id":"para_413"},{"text":"Lincoln, 383 Ill. App. 3d at 206. It noted that the defendant was “not returning the material to","paragraph_id":"para_414"},{"text":"the stream of commerce when it permanently ke[pt] the material on site for its own use.” Id. It","paragraph_id":"para_415"},{"text":"rejected the defendant’s reliance on its proposed development as speculative. Id. at 207.","paragraph_id":"para_416"},{"text":"Further, it distinguished Alternate Fuels, noting that, unlike AFI, the defendant’s “activities do","paragraph_id":"para_417"},{"text":"not include a commercial transaction with a third party concerning a newly created raw","paragraph_id":"para_418"},{"text":"material or product.”","paragraph_id":"para_419"},{"text":"¶ 37 Thus, defendant here, like the defendant in Lincoln, did not engage in a commercial","paragraph_id":"para_420"},{"text":"transaction with a third party and instead kept the material on its site for use as alternate daily","paragraph_id":"para_421"},{"text":"cover and road base. In accordance with Lincoln, it is clear that defendant has not returned any","paragraph_id":"para_422"},{"text":"of the materials at issue in this case to the economic mainstream. It does not, therefore, avoid","paragraph_id":"para_423"},{"text":"being deemed “waste” on that basis. The question is whether it otherwise remains outside the","paragraph_id":"para_424"},{"text":"definition of “waste.”","paragraph_id":"para_425"},{"text":"¶ 38 To begin with, we do not regard “other discarded material” to be ambiguous. It is apparent","paragraph_id":"para_426"},{"text":"to us that the supreme court did not regard the terms “waste” and “discarded” as ambiguous in","paragraph_id":"para_427"},{"text":"Alternate Fuels. To explain its use of section 3.380 to ascertain the meaning of “discarded,”","paragraph_id":"para_428"},{"text":"the court invoked the principle that “words and phrases should not be construed in isolation,","paragraph_id":"para_429"},{"text":"but must be interpreted in light of other relevant provisions of the statute.” Id. at 238. Nowhere","paragraph_id":"para_430"},{"text":"does the opinion mention the in pari materia doctrine. A statute must be found ambiguous","paragraph_id":"para_431"},{"text":"before reliance on the in pari materia rule is warranted. See People v. Rowell, 2020 IL App","paragraph_id":"para_432"},{"text":"(4th) 190231, ¶ 17. The principle that a statute should be read as a whole is part of the initial","paragraph_id":"para_433"},{"text":"inquiry in ascertaining a statute’s meaning, and its invocation does not require a finding that","paragraph_id":"para_434"},{"text":"- 11 -","paragraph_id":"para_435"},{"text":"an ambiguity exists (though this principle may be relied upon if a statute is ambiguous as well","paragraph_id":"para_436"},{"text":"(see People v. Rinehart, 2012 IL 111719, ¶ 26)). See Rowell, 2020 IL App (4th) 190231, ¶ 16.","paragraph_id":"para_437"},{"text":"¶ 39 Neither party attempts to establish that “discarded” is not clear. Hence, we must look to","paragraph_id":"para_438"},{"text":"the plain meaning of the phrase. Hobby Lobby Stores, Inc., 2021 IL App (2d) 190362, ¶ 20. In","paragraph_id":"para_439"},{"text":"such circumstances, it is appropriate to consult a dictionary. Capron Rescue Squad District v.","paragraph_id":"para_440"},{"text":"North Boone Fire Protection District No. 3, 2019 IL App (2d) 190355, ¶ 29. Pertinent here,","paragraph_id":"para_441"},{"text":"“discard” is defined as “to drop, dismiss, let go, or get rid of as no longer useful, valuable, or","paragraph_id":"para_442"},{"text":"pleasurable.” Webster’s Third New International Dictionary 644 (2002). Keeping in mind that","paragraph_id":"para_443"},{"text":"whether material is discarded is assessed with regard to the material itself, rather than from the","paragraph_id":"para_444"},{"text":"perspective of the generator of the material (Alternate Fuels, 215 Ill. 2d at 239), and in light of","paragraph_id":"para_445"},{"text":"the plain meaning of “discard,” it is apparent that the material that defendant is using as","paragraph_id":"para_446"},{"text":"alternate daily cover and road base is not “no longer useful” and therefore has not been","paragraph_id":"para_447"},{"text":"“discarded.” See 35 Ill. Adm. Code 807.104 (1985) (defining “Cover material” as “material","paragraph_id":"para_448"},{"text":"that is used to cover compacted solid waste in a sanitary landfill”). In turn, it is not “waste” as","paragraph_id":"para_449"},{"text":"defined by the Act, and it is not subject to the tipping fee for waste set forth in sections 22.15","paragraph_id":"para_450"},{"text":"and 22.44. See 415 ILCS 5/22.15, 22.44 (West 2022).","paragraph_id":"para_451"},{"text":"¶ 40 Plaintiffs’ argument about defendant’s failure to seek a beneficial use determination is","paragraph_id":"para_452"},{"text":"unavailing. Section 22.54 (which provides for a beneficial use determination) allows “a","paragraph_id":"para_453"},{"text":"material otherwise required to be managed as waste [to] be managed as non-waste.” It has no","paragraph_id":"para_454"},{"text":"application here because the material is not waste in the first instance. See id. § 22.54. Also,","paragraph_id":"para_455"},{"text":"since the statute is not ambiguous, plaintiffs’ reliance on the terms of the permit under which","paragraph_id":"para_456"},{"text":"defendant was operating is misplaced.","paragraph_id":"para_457"},{"text":"¶ 41 Although we have found that the statutory terms at issue here are not ambiguous, we note,","paragraph_id":"para_458"},{"text":"nevertheless, that our conclusion is consistent with IEPA practice on this issue. As a practical","paragraph_id":"para_459"},{"text":"matter, the IEPA appears to have never actually collected fees in the manner advocated by","paragraph_id":"para_460"},{"text":"plaintiffs. The IEPA did not attempt to collect the fee until it issued a violation notice to","paragraph_id":"para_461"},{"text":"defendant and other landfills in 2019. After receiving defendant’s response, the IEPA declined","paragraph_id":"para_462"},{"text":"to pursue the matter further. We also note that the IEPA has not sought to intervene in this","paragraph_id":"para_463"},{"text":"case.","paragraph_id":"para_464"},{"text":"¶ 42 In sum, we hold that the plain meaning of “discard” and, in turn, “waste” does not","paragraph_id":"para_465"},{"text":"encompass the sort of materials defendant uses as alternate daily cover and road base. We","paragraph_id":"para_466"},{"text":"affirm this portion of the trial court’s judgment.","paragraph_id":"para_467"},{"text":"¶ 43 B. Pollution Control Waste","paragraph_id":"para_468"},{"text":"¶ 44 Generally, “pollution control waste” is exempt from the tipping fee. Id. §§ 22.15(k)(2),","paragraph_id":"para_469"},{"text":"22.44(c)(2). Plaintiffs argue that when pollution control waste is certified by its generator as","paragraph_id":"para_470"},{"text":"“non-special waste,” it is no longer entitled to the exemption. The plain language of the Act","paragraph_id":"para_471"},{"text":"does not support plaintiffs’ position.","paragraph_id":"para_472"},{"text":"¶ 45 Plaintiffs point out that “pollution control waste” is defined as","paragraph_id":"para_473"},{"text":"“any liquid, solid, semi-solid or gaseous waste generated as a direct or indirect result","paragraph_id":"para_474"},{"text":"of the removal of contaminants from the air, water or land, and which pose a present or","paragraph_id":"para_475"},{"text":"potential threat to human health or to the environment or with inherent properties which","paragraph_id":"para_476"},{"text":"make the disposal of such waste in a landfill difficult to manage by normal means.” Id.","paragraph_id":"para_477"},{"text":"§ 3.335.","paragraph_id":"para_478"},{"text":"- 12 -","paragraph_id":"para_479"},{"text":"“Pollution control waste” is a subcategory of “special waste.” Id. § 3.475(c). “Special waste”","paragraph_id":"para_480"},{"text":"is subject to enhanced record-keeping and handling requirements. See, e.g., id. § 21(g)(1); see","paragraph_id":"para_481"},{"text":"also 35 Ill. Adm. Code 809.Subpart D; 35 Ill. Adm. Code 811.Subpart D. In appropriate","paragraph_id":"para_482"},{"text":"circumstances, the generator of the waste may certify that it is “non-special.” See 415 ILCS","paragraph_id":"para_483"},{"text":"5/22.48 (West 2022). Where the waste is certified as “non-special,” it need not be managed as","paragraph_id":"para_484"},{"text":"“special waste.” Id. § 22.48(a). Thus, plaintiffs reason, since pollution control waste certified","paragraph_id":"para_485"},{"text":"as “non-special waste” is not subject to enhanced handling and record-keeping requirements,","paragraph_id":"para_486"},{"text":"there is no reason to exempt it from the tipping fee.","paragraph_id":"para_487"},{"text":"¶ 46 A closer examination of the relevant statutes exposes the flaw in plaintiffs’ reasoning. The","paragraph_id":"para_488"},{"text":"generator of waste must first determine whether the waste at issue is “special.” See id.","paragraph_id":"para_489"},{"text":"§ 3.475(c); 35 Ill. Adm. Code 808.121 (2010). Included within the definition of “special waste”","paragraph_id":"para_490"},{"text":"is pollution control waste. 415 ILCS 5/3.475(c) (West 2022). Where the waste is found to be","paragraph_id":"para_491"},{"text":"pollution control waste, the generator must make a further determination as to whether it is","paragraph_id":"para_492"},{"text":"“non-special”:","paragraph_id":"para_493"},{"text":"“ ‘Special waste’ means any of the following:","paragraph_id":"para_494"},{"text":"* * *","paragraph_id":"para_495"},{"text":"(c) industrial process waste or pollution control waste, except:","paragraph_id":"para_496"},{"text":"(1) any such waste certified by its generator, pursuant to Section 22.48 of this","paragraph_id":"para_497"},{"text":"Act, not to be any of the following:","paragraph_id":"para_498"},{"text":"(A) a liquid, as determined using the paint filter test set forth in subdivision","paragraph_id":"para_499"},{"text":"(3)(A) of subsection (m) of Section 811.107 of Title 35 of the Illinois","paragraph_id":"para_500"},{"text":"Administrative Code;","paragraph_id":"para_501"},{"text":"(B) regulated asbestos-containing waste materials, as defined under the","paragraph_id":"para_502"},{"text":"National Emission Standards for Hazardous Air Pollutants in 40 CFR Section","paragraph_id":"para_503"},{"text":"61.141;","paragraph_id":"para_504"},{"text":"(C) polychlorinated biphenyls (PCB’s) regulated pursuant to 40 CFR Part","paragraph_id":"para_505"},{"text":"761;","paragraph_id":"para_506"},{"text":"(D) an industrial process waste or pollution control waste subject to the","paragraph_id":"para_507"},{"text":"waste analysis and recordkeeping requirements of Section 728.107 of Title 35","paragraph_id":"para_508"},{"text":"of the Illinois Administrative Code under the land disposal restrictions of Part","paragraph_id":"para_509"},{"text":"728 of Title 35 of the Illinois Administrative Code; and","paragraph_id":"para_510"},{"text":"(E) a waste material generated by processing recyclable metals by","paragraph_id":"para_511"},{"text":"shredding and required to be managed as a special waste under Section 22.29","paragraph_id":"para_512"},{"text":"of this Act[.]” Id. § 3.475(c)(1).","paragraph_id":"para_513"},{"text":"Thus, this statute removes five specific types of pollution control waste from the category of","paragraph_id":"para_514"},{"text":"special waste.","paragraph_id":"para_515"},{"text":"¶ 47 It is apparent that other sorts of pollution control waste may exist that fall within the","paragraph_id":"para_516"},{"text":"definition of “special waste.” Notably, section 22.48 makes room for this possibility:","paragraph_id":"para_517"},{"text":"“An industrial process waste or pollution control waste not within the exception set","paragraph_id":"para_518"},{"text":"forth in subdivision (2) of subsection (c) of Section 3.475 of this Act must be managed","paragraph_id":"para_519"},{"text":"as special waste unless the generator first certifies in a signed, dated, written statement","paragraph_id":"para_520"},{"text":"that the waste is outside the scope of the categories listed in subdivision (1) of","paragraph_id":"para_521"},{"text":"subsection (c) of Section 3.475 of this Act.” Id. § 22.48(a).","paragraph_id":"para_522"},{"text":"- 13 -","paragraph_id":"para_523"},{"text":"The plain language of this passage indicates that there is pollution control waste that must be","paragraph_id":"para_524"},{"text":"managed as special waste that exists outside the exceptions set forth in section 3.475(c)(1). It","paragraph_id":"para_525"},{"text":"states that pollution control waste certified as being within one of the exceptions need not be","paragraph_id":"para_526"},{"text":"managed as special waste, but pollution control waste not certified as being within one of the","paragraph_id":"para_527"},{"text":"exceptions must be managed as special waste. Thus, it contemplates pollution control waste","paragraph_id":"para_528"},{"text":"that exists outside of any of the exceptions. Moreover, this statute does not state that the non-","paragraph_id":"para_529"},{"text":"special waste otherwise loses its status as pollution control waste if it falls within an exception.","paragraph_id":"para_530"},{"text":"That is, whether or not the waste falls within an exception to special waste, the waste at issue","paragraph_id":"para_531"},{"text":"remains pollution control waste.","paragraph_id":"para_532"},{"text":"¶ 48 The legislature has exempted all pollution control waste from the tipping fee. See id.","paragraph_id":"para_533"},{"text":"§§ 22.15(k)(2), 22.44(c)(2). This exemption is based on the waste’s status as pollution control","paragraph_id":"para_534"},{"text":"waste; non-special waste is not mentioned. See id. §§ 22.15(k)(2), 22.44(c)(2). Had the","paragraph_id":"para_535"},{"text":"legislature intended to exclude pollution control waste that had been certified by its generator","paragraph_id":"para_536"},{"text":"as non-special from the exemption, it could have easily said so in these statutes. We, of course,","paragraph_id":"para_537"},{"text":"are not free to “add[ ] unstated exceptions, conditions, or limitations to the language of a","paragraph_id":"para_538"},{"text":"statute.” Manago v. County of Cook, 2017 IL 121078, ¶ 33. Hence, we are compelled to reject","paragraph_id":"para_539"},{"text":"plaintiffs’ request for us to limit the fee exception to pollution control waste that has not been","paragraph_id":"para_540"},{"text":"certified as non-special. We note that the plain language of the Act is consistent with the","paragraph_id":"para_541"},{"text":"position expressed in the Nechvatal letters.","paragraph_id":"para_542"},{"text":"¶ 49 Plaintiffs also argue that the burden should be placed on a landfill to show that “if the waste","paragraph_id":"para_543"},{"text":"has been certified as non-special, then the landfill operator will have to show a threat to human","paragraph_id":"para_544"},{"text":"health or the environment before it may be shown to be pollution control waste and hence","paragraph_id":"para_545"},{"text":"exempt.” Plaintiffs point out that the definition of pollution control waste is waste that “pose[s]","paragraph_id":"para_546"},{"text":"a present or potential threat to human health or to the environment or with inherent properties","paragraph_id":"para_547"},{"text":"which make the disposal of such waste in a landfill difficult to manage by normal means.” 415","paragraph_id":"para_548"},{"text":"ILCS 5/3.335 (West 2022). Since non-special waste is not subject to enhanced management","paragraph_id":"para_549"},{"text":"requirements (see id. § 22.48(a)), plaintiffs reason, it is not “difficult to manage by normal","paragraph_id":"para_550"},{"text":"means” (id. § 3.335). Accordingly, plaintiffs conclude that a landfill operator should have to","paragraph_id":"para_551"},{"text":"show that the waste falls within the other prong of the definition of pollution control waste to","paragraph_id":"para_552"},{"text":"be entitled to the exemption—specifically, that the waste “pose[s] a present or potential threat","paragraph_id":"para_553"},{"text":"to human health or to the environment.” Id. We disagree.","paragraph_id":"para_554"},{"text":"¶ 50 The IEPA has placed on the generator of waste the responsibility of “determin[ing] whether","paragraph_id":"para_555"},{"text":"the waste is a special waste.” See 35 Ill. Adm. Code 808.121(a) (2010). This entails","paragraph_id":"para_556"},{"text":"ascertaining whether the waste is pollution control waste and, in turn, whether, if it is pollution","paragraph_id":"para_557"},{"text":"control waste, it is exempt, non-special waste. See 415 ILCS 5/3.475 (West 2022). Thus, prior","paragraph_id":"para_558"},{"text":"to waste even arriving at a landfill, it has been classified as pollution control waste. We find","paragraph_id":"para_559"},{"text":"plaintiffs’ argument to the contrary unpersuasive in light of these enactments. Plaintiffs point","paragraph_id":"para_560"},{"text":"to no statute or regulation that would require a landfill operator to again classify this waste that","paragraph_id":"para_561"},{"text":"has already been classified.","paragraph_id":"para_562"},{"text":"¶ 51 In short, we reject plaintiffs’ argument on this point and affirm this portion of the trial","paragraph_id":"para_563"},{"text":"court’s judgment as well.","paragraph_id":"para_564"},{"text":"- 14 -","paragraph_id":"para_565"},{"text":"¶ 52 IV. CONCLUSION","paragraph_id":"para_566"},{"text":"¶ 53 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.","paragraph_id":"para_567"},{"text":"¶ 54 Affirmed.","paragraph_id":"para_568"}],"word_count":7392,"cites":[],"cited_by":[],"sha256":"e0f525d7d6cfec87ef77abfd86346b5d7cf07aa9cee7612f69116b5178fdb288","source_url":"https://www.illinoiscourts.gov/resources/71244e49-3d3c-4844-adce-80e1e72e0700/file","fetched_at":"2026-10-14T12:39:23.277+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/us/illappct-2-25-0024-2026-01-29","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=us:illappct-2-25-0024-2026-01-29","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=us:illappct-2-25-0024-2026-01-29","changes":"https://legal.exploreworldai.com/api/public/v1/us-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/us-praxis/agent?id=us:illappct-2-25-0024-2026-01-29","verification":{"stored_sha256":"e0f525d7d6cfec87ef77abfd86346b5d7cf07aa9cee7612f69116b5178fdb288","recomputed_sha256":"e0f525d7d6cfec87ef77abfd86346b5d7cf07aa9cee7612f69116b5178fdb288","intact":true,"checked_at":"2026-10-18T03:50:14.023Z"}},"hash":"sha256:400f0e82341d947d5b4c6023fa647b1c32a6d7a43099c0e88b93746fe84e02e7","version":"legal-2026-10-18","expires":"2026-10-19T00:00:00.000Z","dependency":{"index_version":"legal-2026-10-18+legal-2026-10-18+2026-10-18T01:46:51","content_hash":"sha256:400f0e82341d947d5b4c6023fa647b1c32a6d7a43099c0e88b93746fe84e02e7","revalidate_after":"2026-10-18T04:50:14.602Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:illappct-2-25-0024-2026-01-29","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=us:illappct-2-25-0024-2026-01-29"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=us:illappct-2-25-0024-2026-01-29"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/us-praxis/agent?id=us:illappct-2-25-0024-2026-01-29"},{"rel":"obligations","href":"https://legal.exploreworldai.com/api/public/v1/obligation-chain"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=us"}],"disclaimer":"Source reference with official identifier. 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