ILLINOIS POLLUTION CONTROL BOARD
August 13,
1992
ESG WATTS,
INC.,
Petitioner,
)
v.
)
PCB 92—54
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This matter is before the Board on the July 16,
1992 motion
for summary judgment filed by petitioner ESG Watts,
Inc.
(ESG).
Respondent Illinois Environmental Protection Agency
(Agency)
filed its response on July 28,
1992.
On March 9,
1992,
the Agency denied ESG’s seven applications
for special waste stream permits.
Each of the denial letters
listed identical reasons for denial.
Denial reason no.
1
concerns water pollution from releases of leachate.
The Agency
states that ESG has failed to demonstrate that disposal of the
special wastes will not cause or contribute to the generation of
contaminated leachate.
In support of denial reason no.
1,
the
Agency cites general prohibitions against water pollution and
provisions concerning leachate and refuse
in standing water.
Denial reason no.
2 concerns inadequate cover and states that ESG
has failed to demonstrate that the special waste stream is
suitable for disposal without daily cover.
The Agency cites
various provisions requiring daily cover and the collection of
litter.
Denial reason no.
3 concerns ESG’s failure to comply
with enumerated permit conditions,
including financial assurance
requirements and prohibiting discharge without an NPDES permit,
and states that adding the special wastes to the site would
increase the threat of contamination and endangerment to the
environment.
Summary judgment will be granted where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
(Sherex Chemical v. IEPA
(July 30,
1992), PCB 91—202; Williams Adhesives,
Inc.
v. IEPA (August 22,
1991), PCB 91-112.)
ESG contends that testimony of Agency
personnel submitted in support of its motion establishes that ESG
is in compliance with all provisions of the Act and regulations
cited in the denial letters.
ESG contends that Agency inspector
Mitch Smith’s testimony establishes that there is no litter,
leachate or “refuse—in—standing—water”problems at the site.
ESG
also contends that Smith’s testimony’ establishes that the
violations for inadequate cover are not a continuing problem and
that there have been no such violations since April
3,
1992.
As
0135-0301
2
to denial reason no.
3,
ESG contends that the testimony
establishes that it does have an NPDES permit and also that it
has deposited the requisite financial assurance into the trust
fund.
In attempting to establish that there is no genuine issue of
material fact concerning compliance,
ESG has submitted select
portions of the transcripts of hearings held in the Circuit Court
of Cook County on March 30,
1992, April
7,
1992 and April
27,
1992
in an enforcement action brought by the People against ESG
and portions of Mitch Smith’s deposition taken March 30,
1992.
Smith testified that,
on April
3,
1992, he no longer observed
refuse in standing water or uncovered refuse.
(Ex.
1 at 6—7.)
The transcripts submitted by ESG in support of its motion for
summary judgment were all taken after the Agency rendered its
permit denial decisions on March 9,
1992.
As a general rule,
the
Board reviews the Agency’s permit denial based upon the record
before the Agency at the time it rendered its denial.
Moreover,
without complete transcripts, the Board cannot determine the
context of the testimony given in these other proceedings.
The
Board cannot conclude, based upon incomplete transcripts taken
pursuant to a motion for injunctive relief in a separate
enforcement action, that there is no genuine issue of material
fact in this permit appeal as to whether ESG has met its burden
of establishing as a matter of law that its applications for
special waste permits demonstrate compliance with the Act and
regulations.
For the foregoing reasons, the Board denies ESG’s motion for
summary judgment.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
/.S~
day of
_____________,
1992 by a vote of
7~
~
Dorothy M. ,4Znn,
Clerk
Illinois P~94.lutionControl Board
0135-0302