ILLINOIS POLLUTION CONTROL BOARD
October 14,
1982
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 81—98
WASTELAND, INC., an Illinois
Corporation, VERNON LAMOREAUX,
DENNIS LAMOREAUX, ROGER PEMBLE
and WASTE RESOURCES CORPORATION,
an Illinois Corporation,
Respondents.
ORDER OF THE BOARD
(by J.D.
Durneile):
On September 30,
1982 the Illinois Environmental Protection
Agency (Agency) filed
a motion to clarify or modify the Board’s
August 26,
1982 Order in this matter.
No response was
filed.
The motion to modify is hereby granted in part and the motion to
clarify is granted.
In making these motions the Agency has indicated a concern
that the Board’s August 26,
1982 Order is not final
for purposes
of enforcement through the Circuit Court,
and that it “is probably
not appealable.”
This concern results from the interaction of
Section 41 of the Environmental Protection Act (Act), which limits
judicial review of Board Orders to “final Orders or determinations,”
par.
3—101 of the Administrative Review Act
(ARA) which defines
“administrative decision,” and Supreme Ct.
Rule 335(h) (2), which
applies that definition to Appellate Court review of Board actions.
In the Board’s August 26,
1982 Order, several actions are
required.
First,
a penalty is
to be paid.
Second, a bond or other
security is to be obtained.
Third,
Respondents are
to cease and
desist.
Fourth,
the operating permit is revoked.
Fifth,
the
site is to be covered.
Sixth,
a hydrogeologic survey is to be
performed.
Seventh, a monitoring program is to be established
including installation of leachate monitoring wells.
Eighth,
remedial actions are to be taken and the site is to be permanently
closed.
There should be no question that the first seven of these
actions are final determinations.
Proceedings before the Board
have been terminated and the period for reconsideration has passed.
The sole reason for the Board’s retention of jurisdiction was for a
determination of whether it is necessary to exhume the materials
improperly disposed of at the landfill site.
In this regard the
Board notes that the landfill site and the paper recovery site are
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—2—
to be considered a single site for that purpose,
i.e. as regards
Condition
8 of the August 26,
1982 Order.
The Agency argues that under Condition
8 a permit applicant
could “file a perfunctory application, obtain a denial,
and quit
without appealing to the Board,” thereby leaving no “adequate
remedy.”
Such an action would, of course, violate the Order that
a permit be obtained within 180 days and could be enforced through
the Circuit Court,
However,
such
a course places ultimate over-
sight responsibilities with the Circuit Court rather than with
the Board, which was the reason for the Board’s retention of juris-
diction.
The Agency points out that the Board’s goal can be accomplished
through a “contingent exhumation Order” whereby failure to obtain
the required permit would result in a requirement that the materials
be exhumed.
That mechanism allows Respondents to demonstrate to
the Agency through the permitting process that exhumation is
unnecessary, and the Agency’s determination of whether to approve or
deny that permit would be appealable to the Board,
thus retaining
Board oversight.
The difficulty with the Agency’s suggestion,
however,
is that
the decision on the necessity of exhumation would be made at the
same time as the decision as
to what constitutes an adequate
monitoring and interim closure plan.
Thus the Agency would not
have the benefit of the monitoring results prior to its exhumation
determination; nor would the Board have such information before
it
for any appeal of that permitting decision.
However, the Board
finds merit in the suggestion that continued Board oversight be
accomplished through its permit review powers rather than through
the retention of jurisdiction.
Therefore,
the Board will modify its prior Order
to establish
a mechanism whereby the exhumation decision can be based upon
complete monitoring information while retaining its oversight
through its permit review powers.
The Board notes that the time periods established in this
modified Order reflect the statutory requirements for permit
review,
and that while a more expeditious schedule would be de-
sirable, these time periods are required to protect Respondents*
due process rights.
On the other hand,
the Board will look
with disfavor upon any extension of these dates without good
cause.
The Board hereby modifies its August
26,
1982 Order in this
matter in the following respects:
1.
Condition
7 is modified
to read:
“Operating Permit
No. 1976—13—OP is hereby revoked.”
2.
Condition 11 is deleted as is the second to last
sentence on page 27 of the corrected Opinion referring
to the retention of jurisdiction.
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—3—
That sentence will be replaced with the following:
It is the intent of the Board in framing the following
Order that appropriate remedies be achieved in an
expeditious and orderly manner.
3.
Condition
8 is deleted and the following is sub-
stituted:
8.
Respondents shall remove all unpermitted refuse
from both the Landfill and the Paper Recovery
Sites within one year unless a permit is
obtained from the Agency within 335 days of the
date of this Order to allow remedial monitoring
measures to ensure that the environment is
protected while information is gathered to
determine whether exhumation of the unpermitted
materials is required.
a.
The Respondents,
if they apply
for such a
permit,
shall apply within 120 days of the date
of this Order.
b.
Such application for a permit shall include
but not be limited to:
i.
Installation of an adequate system of
leachate monitoring wells and monitoring programs;
ii.
Installation of adequate gas vents and
flares and an adequate monitoring system;
and
iii. Appropriate
steps
to isolate and contain
combustible refuse so as to prevent the spread of
fires.
c.
The term of permit
if granted,
shall be the
minimum period required to obtain meaningful results
from the monitoring program plus 120 days.
d.
At least
90 days prior to the expiration of
such permit,
if granted, Respondents
shall apply
for a permit for
final, closure of the sites.
e.
The Respondents,
if they have not obtained
a permit from the Agency within 335 days of the
date of this Order
to establish a monitoring
program,
shall file within
365
days of the date
of this Order
a plan and schedule acceptable to
the Agency with the Agency for the exhumation,
removal and disposal of the material.
f.
Unless a permit for final closure of the
sites
is obtained within 215 days of the date
of application Respondents whall within 235 days of
the date of application
file a plan and schedule
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acceptable to the Agency with the Agency for
exhumation,
removal and disposal of the
material.
4.
Condition 10
(a)
is deleted and the following is
substituted:
10
a.
Completed a hydrogeological survey of
both the Landfill and the Paper Recovery
Sites performed by a registered engineer,
engineering
firm, or other qualified
professional.
IT IS SO ORDERED.
Board Member
N. Werner abstained.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Bo~r~d,hereby certify, that the above Order was adopted
on the
(‘-~
1’~ day of
~
~
____
,
1982 by a vote of
-
(
~(
Ii
Christan L. Moffet?~Clerk
Illinois Pollution Control Board
49-152