No. 3--02--0024

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

COMMUNITY LANDFILL COMPANY	)	Appeal from a decision  

and THE CITY OF MORRIS,		)	by the Pollution Control 

	Petitioners-Appellants,	)	Board

						)	

	v.					)	No. 01-170

						)	

THE POLLUTION CONTROL BOARD 	) 

and THE ENVIRONMENTAL		) 

PROTECTION AGENCY, 			)

	Respondents-Appellees.	)	

_________________________________________________________________

	Modified Upon Denaial of Rehearingil 

	JUSTICE BRESLIN delivered the opinion of the court:

_________________________________________________________________

	Petitioners Community Landfill Company and City of Morris (collectively, the company) appeal from a decision by respondent

Illinois Pollution Control Board (Board) affirming respondent

Illinois Environmental Protection Agency's (Agency) denial of the

company's application for a waste disposal permit because the

surety that provided the previously approved performance bonds was later removed from a United States Department of the Treasury list

of approved sureties.  We affirm and hold that a permit for waste disposal is appropriately denied if the surety that provides the

financial assurance is removed from the list of approved

governmental sureties.

I. FACTS

	Community Landfill Company is the operator of a landfill located in Morris, Illinois.  The landfill is owned by the City of Morris.  The property on which the landfill is located consists of

two parcels of land, parcel A and parcel B.

	In August of 2000, the Agency issued a significant

modification permit to the company that called for the closure of parcel B and authorized the continued operation of parcel A under

new landfill regulations.  The new regulations required increased

leachate collection and control devices as well as the installation

of a separation layer.  The permit was supported by financial

assurance of $17,427,366 guaranteed by bonds issued by Frontier

Insurance Company.  The permit required that the company file a

supplemental permit application in the future to secure approval of

the construction of the separation layer and authorize the

acceptance of waste for disposal in the newly constructed area

located in parcel A.  

	On November 14, 2000, the Agency sent notice to the company that it was in violation of the Environmental Protection Act (Act)

(415 ILCS 5/1 et seq. (West 2000)) because the surety that wrote the bond for the significant modification permit was no longer on

the list of approved governmental sureties.  Two weeks after receiving this notice, the company filed its supplemental permit

application for parcel A.

	On May 11, 2001, the Agency denied the company's application

for the supplemental permit for two reasons.  One was because the

surety was no longer on the list of approved government sureties. 

Specifically, the application was denied for failure to comply with

section 811.712(b) of the Illinois Administrative Code (Code) (35 Ill. Adm. Code §811.712(b) (West CD-ROM 2000)), which requires that

the surety company that guarantees the bonds or other financial

assurance for a permit be licensed by the Illinois Department of

Insurance and approved by the United States Department of the

Treasury as an acceptable surety.  The Treasury Department lists acceptable sureties in its Circular 570.  See 35 Ill. Adm. Code

§811.712(b) (West CD-ROM 2002).  The second reason the application

was denied was because the owner of the landfill company had a

felony conviction record.  The company appealed the Agency's

decision to the Board, claiming that both reasons for denying the

supplemental permit were improper and that the denial amounted to

impermissible enforcement by permitting.

	At a hearing before the Board, Blake Harris, a financial

assurance analyst for the Agency, testified that he reviewed the bonds relied upon by the company to support its supplemental permit application.  The the bonds were

insufficient because the issuing surety, Frontier Insurance

Company, had been removed from the Circular 570 list on June 1,

2000.  

	John Taylor, a former financial assurance analyst for the

Agency, testified on behalf of the company.  He reviewed the bonds

when they were originally submitted by the company in support of

the significant modification permit that was issued in August of

2000.  According to Taylor, he was aware that Frontier had been

removed from the list of approved sureties one day after the

company obtained the bonds.  He concluded, however, that the bonds

met the applicable statutory and regulatory requirements because at

the time they were issued Frontier was an approved surety.

	At the hearing, the company sought to introduce testimony of

several employees of the Agency involved in the permit application

process and documents regarding a permit issued to the company on

June 29, 2001, for the installation of perimeter gas monitoring

probes.  After an offer of proof was made, the hearing officer excluded the evidence, finding that it was not part of the record

before the Agency when the permit application was considered and

thus could not be considered by the Board on appeal.  Thereafter,

the company filed an objection to the officer's decision to exclude

the evidence and to an earlier decision not to allow a separate

evidentiary hearing regarding the matter.

	In December of 2001, the Board issued an opinion and order

affirming the denial of the supplemental permit on the basis that

the surety which issued the bonds was not on the approved list of

sureties.  In addition, the Board affirmed the hearing officer's

exclusion of testimony and documents regarding the grant of the

June 29, 2001, permit and the hearing officer's decision to deny a

separate hearing.  The Board, however, reversed the Agency's decision to use the felony conviction as a basis to deny the permit

and rejected the company's claims of equitable estoppel, inadequate

notice, and improper enforcement through permitting.  The company appealed.

	Additional facts will be provided as they become pertinent to

the analysis.

II. ANALYSIS

	The company complains that the Board erred when it affirmed the Agency's denial of its supplemental permit application and when it affirmed the hearing officer's decision to exclude evidence.  The company also complains that the Board failed to address several issues relating to the felony conviction.  We will reverse the Board's decision only if it is against the manifest weight of the

evidence. ESG Watts, Inc. v. Pollution Control Board, 286 Ill. App. 3d 325, 676 N.E.2d 299 (1997).

	The company's main argument is that the Board erred in affirming the Agency's denial of the permit.  The company claims

that the denial of the permit was improper because the bonds were

valid and enforceable, the company failed to receive reasonable advance notice and an opportunity to respond before the permit was

denied, the denial was an impermissible use of the permitting

process as an enforcement tool, and the Agency should have been estopped from rejecting the bonds.

	Section 21(d) of the Act (415 ILCS 5/21(d) (West 2000)) provides that no person shall conduct any waste disposal operation

without a permit granted by the Agency or in violation of any

conditions imposed by such permit.  If a permit is required for the operation of a waste disposal facility, a person shall apply to the

Agency for such permit and the Agency shall issue such permit upon

proof by the person that the facility will not cause a violation of

the Act or of any regulation under the Act.  415 ILCS 5/39(a) (West

2000). 

	Section 811.700(f) of the Code (35 Ill. Adm. Code §811.700(f) (West 2000)) states that "no person, other than the State of Illinois, its agencies and institutions, shall conduct any disposal

operation *** unless that person complies with the financial

assurance requirements" provided by the Code.  The Code requires

that the surety company issuing the bond be licensed to "transact

the business of insurance by the Department of Insurance, pursuant

to the Illinois Insurance Code, or at a minimum the insurer must be

licensed to transact the business of insurance or approved to

provide insurance as an excess or surplus lines insurer by the

insurance department in one or more states, and approved by the

U.S. Department of the Treasury as an acceptable surety." 35 Ill.

Adm. Code §811.712(b) (West 2000).  The Department of the Treasury

lists acceptable sureties in its Circular 570. 35 Ill. Adm. Code §811.712(b) (West 2000).

	We affirm and hold that the supplemental permit application in

this case was appropriately denied because the company failed to satisfy these requirements of the Act and Code when seeking the

permit.  Although the parties do not dispute that the bonds were

valid and enforceable or that the Agency accepted the company's

bonds for a different permit after Frontier was removed from the

Circular 570 list, Frontier did not meet the statutory financial

assurance requirements for the supplemental permit here as it was

not on the list of approved sureties when this application was

submitted and ruled on.  See 35 Ill. Adm. Code §811.712(b) (West

2000). 

	Although the company contends that the agency failed to provide it with notice and an opportunity to respond before it considered the sufficiency insufficiency of the bonds as a means to deny the permit, the company was well aware that financial assurance must be

obtained from an approved surety and that the permit application

could be denied for failure to do so.  Therefore, the fact that the surety was removed from the Circular 570 list was not a matter

outside the permitting process and the Agency did not have an

obligation to provide notice to the company or an opportunity to

respond during the permitting process. 

	We do not agree with the company that the denial was an impermissible use of the permitting process as an enforcement tool.  Section 39(a) of the Act (415 ILCS 5/39 (West 2000)) provides that

when a permit is required by regulation for the operation of any

type of facility under the Act, the applicant shall apply to the

Agency for such permit and it shall be the duty of the Agency to

issue such a permit upon proof by the applicant that the facility

will not cause a violation of the Act or of any regulation

thereunder.  Consequently, the Agency was required in this case to

deny the permit application because the permit would cause a

violation of the Act.  See Gersch v. Department of Professional Regulation, 308 Ill. App. 3d 649, 720 N.E.2d 672 (1999) (providing that express legislative grants of powers or duties to

administrative agencies include the power to do all that is

reasonably necessary to execute those powers or duties).

	We also do not agree with the company that equitable estoppel

should be applied to this case.  To invoke equitable estoppel against a public entity there must be an affirmative act on the part of the public entity and the inducement of substantial

reliance by that affirmative act. Hamwi v. Zollar, 299 Ill. App. 3d 1088, 702 N.E.2d 593 (1998).  The party seeking to assert equitable

estoppel against the public entity must show that the entity made

a misrepresentation with knowledge that the misrepresentation was

untrue. Medical Disposal Services, Inc. v. Environmental Protection Agency, 286 Ill. App. 3d 562, 677 N.E.2d 428 (1996).

	In this case, the company failed to prove that the Agency

knowingly represented that the bonds were compliant with the

applicable regulations when it knew that they were not.  Although

the permit was ultimately denied because the bonds were determined

to be insufficient, John Taylor testified that he believed the

bonds met the applicable statutory and regulatory requirements because at the time they were issued Frontier was an approved surety.  This does not amount to a knowing misrepresentation on the

part of the Agency.  Instead, it appears to be an error on the part

of an employee of the Agency.  Moreover, the company failed to present sufficient evidence in support of its claim that it had

detrimentally relied on the Agency's acceptance of the bonds prior to the issuance of the August 2000 permits.  See Metromedia, Inc. v. Kramer, 152 Ill. App. 3d 459, 504 N.E.2d 884 (1987) (finding that a plaintiff failed to prove its theory of equitable estoppel

because it did not provide evidence of substantial loss due to its

reliance on an erroneously issued permit).   

	The company's second argument is that the Board erred when it

affirmed the hearing officer's decision to exclude testimony and documents relating to the June 29, 2001, permit for the gas probes. 

According to the company, the very same Frontier bonds that the

Agency rejected and the Board affirmed as noncompliant for the May

11 permit were later accepted by the Agency for the June 29, 2001,

permit.  Moreover, the documents surrounding the June 29 permit

were in the Agency's possession when it made the decision to deny

the May 11 permit.  The documents and testimony were relevant to

this case to show that the Agency's application of the financial

assurance regulations is inconsistent and that the Agency's denial

of the permit was enforcement under the guise of permitting.  The

company also complains that it was entitled to receive a separate

hearing on the issue of whether the Agency inconsistently applied

its own regulations.  

	The Agency responds that the bonds were not a part of the

record when it made the decision to deny the May 11 permit. 

Additionally, it claims that the bonds were needed for the May 11

permit because the statute required bonding for the disposal of 

waste in a new cell, but the bonds were not required for the June 29 permit for pollution control measures.

	The Board determined that the evidence was properly excluded

by the hearing officer.  It based this determination only on a finding that the June 29 permit application was not part of the

record before the Agency.  Because the record on appeal is

inadequate for this court to make a determination, we cannot say

whether the Board's decision was proper.  The record fails to contain the complete files of the Agency relating to the May 11 and the June 29 permit applications.  Moreover, we are unable to

determine whether the bonds were a requirement for the June 29

permit.

	On appeal, it is the duty of the appellant to provide a record sufficient for reviewing the issues raised. Davis v. Allstate Insurance Co., 147 Ill. App. 3d 581, 498 N.E.2d 246 (1986).  Any doubts resulting from the absence of such a record will be held

against the appellant. Galarza v. Department of Labor, 167 Ill. App. 3d 163, 520 N.E.2d 672 (1987).  Because this court has insufficient information to guide us in our evaluation of  this

issue, we must presume the hearing officer correctly excluded the

evidence.  Accordingly, we affirm. 

	The company's last argument is that the Board erred by not addressing the Agency's substantive decision to deny the permit

based on the landfill owner's prior felony conviction.  It claims that the Agency was required to implement rules and procedures for

conducting evaluations of landfill operators and that the Board

failed to examine the Agency's procedures in this case.  The

company also complains that the Board was barred by the doctrine of

laches from raising the issue of the felony conviction when it failed to raise the issue for at least six years.  Because the

Board agreed with the company that the Agency had improperly

considered the felony conviction, we decline to address these

issues on appeal.  See Illinois Central R.R. Co. v. Accident & Casualty Co. of Winterthur, 317 Ill. App. 3d 737, 739 N.E.2d 1049 (2000) (finding that although a successful party may not agree with the reasoning of a lower court, it is improper to provide that

successful party with a forum in a reviewing court).

	For the foregoing reasons, the judgment of the Board is

affirmed.

	Affirmed.

	LYTTON, P.J., and MCcDADE, J., concur.