ILLINOIS POLLUTION CONTROL BOARD
    November 10,
    1976
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    )
    PCB 75—368
    COMMONWEALTH EDISON COMPANY,
    an Illinois corporation,
    Respondent.
    Mr. Marvin
    I.
    Medi
    Assistant Attorney General, appeared on
    behalf of Complal:
    i;
    Mr.
    R.
    Rex Renfrow,
    III,
    Isham,
    Lincoln
    & Beale, appeared on
    behalf of Respondent.
    OPINION
    AND
    ORDER
    OF THE
    BOARD
    (by Mr. Goodman):
    This matter comes before the Board upon the Complaint of the
    People of the State
    of
    Illinois by William J. Scott, Attorney
    General of the State
    of
    Illinois
    (State)
    against Commonwealth
    Edison Company and Lincoln Stone Quarry,
    Incorporated, both Illinois
    corporations, and the First National Bank of Joliet as Trustee under
    Trust No.
    724.
    The Complaint was filed before the Board on September
    19,
    1975.
    On November
    24, 1975 the State filed an Amended Complaint
    which excluded Lincoln Stone Quarry,
    Incorporated,
    as Respondent.
    On December
    18,
    1975, Respondent First National Bank of Joliet was
    dismissed by Order of the Board in response
    to its Motion filed on
    December
    3,
    1975.
    The subject of this action is a solid waste management site
    operated by Edison at a quarry located near the intersection of
    24
    197

    —2—
    Patterson and Brandon Roads,
    south of Joliet, Will County, Illinois.
    In its second Amended Complaint,
    the State alleges that Edison vio-
    lated Rule 202(b) (1)
    of the Solid Waste Regulations, Chapter
    7,
    Illinois Pollution Control Board Rules and Regulations,
    and Section
    21(e)
    of the Environmental Protection Act
    (Act)
    since July
    27, 1974,
    in that Edison caused or allowed refuse fly ash from the company’s
    Joliet Station Power Plant to be deposited at the quarry site without
    first having obtained an operating permit from the Illinois Environ-
    mental Protection Agency
    (Agency).
    In Count II the State alleges
    Edison has violated Section 21(f)
    of the Act in that it disposed of
    its refuse fly ash at the aforementioned solid waste management site
    which does not meet the requirements of the Act or Regulations
    in
    that the site does not have a permit nor is proper cover provided for
    the refuse there deposited.
    A hearing was held in this matter on
    May 24,
    1976 at which a proposed Stipulation of Fact was presented to
    the Board by both parties.
    The Board hereby accepts the proposed
    Stipulation of Fact.
    The essential issue of this case
    is whether or not Edison
    is
    required by law to I~iave a permit issued by the Agency for its solid
    waste disposal site~ The Stipulation of Fact
    (Stipulation)
    filed
    June 10, 1976 indicates that Edison has been disposing of combustion
    by-products generated at its Joliet Station
    in a leased part of
    Lincoln Stone Quarry since approximately 1963.
    The combustion by-
    products disposed of in this quarry are non—putrescible substances
    consisting entirely of fly ash and bottom ash generated by burning
    coal at the Joliet generating station.
    These combustion by-products
    consist primarily of oxides of silicon,
    iron,
    and aluminum with a
    variety of oxides of other metals,
    particularly boron,
    in trace
    amounts.
    Nothing other than the combustion by-products generated
    at the Joliet Station are disposed of at the quarry site.
    Approxi-
    mately 280,000 tons of the combustion by—products are deposited in
    the quarry every year by sluicing the material from the generating
    station with water pumped from the Des Plaines River.
    The deposits
    are either saturated with or covered by water at all times,
    the
    supernatant flowing by gravity to a sump area in the quarry where
    it
    is collected and pumped back into the River
    (Stip.
    Para.
    18)
    *
    Pursuant to the Solid Waste Regulations promulgated by the Board
    on July
    19,
    1973, Edison proceeded to submit an application to the
    Agency for a permit
    to operate a solid waste disposal site at the
    Lincoln Quarry
    (Stip.,
    Para,
    21).
    Subsequent to the submission of
    the permit application by Edison, which was denied by the Agency
    pending receipt of further information, Edison and the Agency
    have been in constant communication concerning the permit application
    24
    198

    —3—
    with the
    result
    that,
    at the time of the Stipulation, Edison had at
    no time received
    a permit from the Agency to operate this site
    (Stip. Para.
    22—36).
    In addition, Edison has never,
    at any time,
    provided daily cover other than the water as noted previously for
    the combustion by-products disposed of at the site (Stip. Para.
    18
    & 22)
    *
    On January 22,
    1976,
    a decision was made by Edison and the
    Agency that a new application was in order due to the time that has
    elapsed since Edison’s first application and the changes that occurred
    in the quarry in that time
    (Stip. Para.
    37).
    Additional testing has
    been done by Edison on the site including a continuous well monitor-
    ing program.
    (Stip. Para.
    39
    & 40).
    In addition,
    Edison has pro-
    posed a plan to the Agency to replace its fly ash sluicing system with
    a dry collection system.
    When this
    is accomplished, Edison proposes
    to dispose of the fly ash at the Joliet Station either as a commercial
    substance or a dry waste product at some other location.
    It
    is pro-
    posed that this system would be completed in early
    1979.
    (Stip.
    Para.
    41).
    On September 14,
    1976, Edison filed with the Board a copy of a
    permit received by Edison on September
    9,
    1976 from the Agency for the
    Lincoln Stone Quarry site.
    The central issue of this case is whether or not Edison is
    required to have a permit for its solid waste disposal site at the
    quarry.
    Edison has contended throughout this case that since the
    refuse disposed of at Lincoln Quarry is
    generated by its own activi-
    ties,
    it is not required to obtain
    a permit by virtue of the exemption
    clause contained in Section
    21(e)
    of the Environmental Protection
    Act
    (Act).
    Section 21(e)
    of the Act states
    in pertinent part that no
    person shall:
    conduct any refuse collection or refuse disposal
    operations except for refuse generated by the
    operators own activities without a permit granted
    by the Agency...
    The Board in response to a Motion to Dismiss has rejected Edison’s
    exemption argument citing EPA v. City of Pontiac,
    PCB 74—396,
    18
    PCB 303,
    306
    (August
    7,
    1975).
    People of the State of Illinois
    v.
    Lincoln Stone Quarry,
    Inc.,
    et al., PCB 75-368 Interim Opinion and
    Order, November
    6,
    1975.
    In Pontiac the Board set forth
    its interpre-
    tation of the exemption provision contained in Section 21(e)
    of the
    Act stating that:
    section
    21(e)
    and its exemption must be interpreted
    consistently with the purposes of the Act.
    Title V,
    24
    199

    —4—
    Section 20 states this purpose to be prevention of
    pollution or misuse of land arising out of improper
    refuse disposal,
    To achieve this end the Regulations
    establish a permit system controlling refuse-disposal
    activities.
    The intent of Section 21(e) was to exempt
    minor amounts
    of refuse which could be disposed of
    without environmental harm on the site where it was
    generated.
    There was no intent to create a gap in
    the permit system of the magnitude suggested by Pontiac.
    To interpret the exemption as allowing the municipality
    to dispose of any refuse it owns without a permit will
    mean that large quantities of varied materials could
    be indiscriminately deposited at a waste-disposal site.
    This obviously circumvents both the permit system and
    the purposes of the Act.
    Id. at
    306.
    Edison argues that
    the
    Board’s interpretation of 21(e)
    is inconsistent
    the plain words of the Act, arose in a different factual context, and
    ignores the rules of statutory construction.
    Edison complain~
    :i~eexemption language contained in Section
    21(e)
    is clear and unambiguous in that it obviously means what Edison
    says it means,
    The
    Board
    reaffirms its position in Pontiac that the
    intent of Section
    21(e)
    was to exempt minor amounts of refuse which
    could be disposed of without environmental harm on the site where it
    was generated.
    Edison
    cites
    an amendment to Section 21(e)
    which was
    adopted by the Illinois Legislature after the Pontiac decision was
    issued and contends
    that. the
    Legislature thereby implicitly rejected
    the Board’s
    interpretation
    that only operators disposing of small
    quantities of non-environmentally harmful waste were exempt from the
    permit requirements of Section 21(e).
    The 1975
    amendment to
    Section 21(e)
    of the Act states as follows:
    The above exception shall not apply to any
    hazardous refuse except that the exception
    shall apply to any person engaged in agricultural
    activity who is disposing of a substance which
    would normally be classified as hazardous if the
    substance was acquired for use by that person on
    his
    own
    property.
    For the purpose of this Section
    “hazardous refuse” shall mean refuse with inherent
    properties which make such refuse difficult or
    24
    200

    —5—
    dangerous to manage by normal means including but
    not limited to chemicals,
    explosives,
    pathological
    wastes,
    and wastes likely to cause
    fire.
    As Edison stated in its brief, the Pontiac Opinion was before the
    Legislature when the amendment to 21(e) was executed.
    If indeed the
    Legislature did find the Board’s interpretation incorrect, it would
    have been a simple matter to give us direction in the amendment.
    In-
    stead the Legislature went beyond Pontiac and stated that even small
    amounts of refuse could not meet the exception should they be of a
    hazardous nature,
    a commonly accepted designation for particularly
    dangerous pollutants.
    The only exception to this Rule is
    a person
    engaged in agricultural activity,
    a farmer, who is utilizing possibly
    hazardous chemicals necessarily added to his land in order to produce
    an effective crop yield.
    The Board notes that a farm operation is
    normally
    a small
    operation
    using relatively small amounts of chemicals.
    In addition,
    the
    Legislature
    defined hazardous refuse for the purpose
    of the Section
    using as
    examples chemicals, explosives,
    pathological
    wastes and waste
    likely
    to cause fire.
    The Board notes that all of
    these examples
    are illustrative
    of wastes not likely to be found in
    gross quantities.
    For the above reasons the Board finds that Edison’s disposal of
    some 280,000 tons of material per year utilizing some 8,000 gallons
    per minute of water
    as a carrier,
    is a proper subject for a permit
    evaluation by the
    Agency
    charged with the duty to prevent the pollu-
    tion and misuse of
    land.
    Since Edison does not come within the
    exception under
    21(e)
    it
    follows that it was necessary for Edison to
    acquire an Agency
    permit for the landfill operation.
    The Board,
    therefore,
    finds
    Edison
    in
    violation of Rule
    202(b)
    (1)
    of the Regu-
    lations
    and
    Section
    21
    (e)
    of
    the
    Act
    in
    that
    it
    is
    operating
    its
    facility without a permit.
    Count
    II
    of
    the
    Complaint,
    which
    alleges
    Edison
    has
    violated
    the
    Board’s
    substantive
    cover
    rules
    and
    has
    operated
    without
    a
    permit
    and
    is
    therefore
    in
    violation of Section
    21(f)
    of
    the
    Act,
    presents
    some
    interesting issues.
    Having found Edison in violation of 21(e)
    of the
    Act in that it
    is operating without a permit, the Board can find no
    useful purpose in finding Edison
    in violation of a different part of
    the same Section
    for the
    same reason.
    With regard to the cover rules,
    the Stipulation does
    not
    address this issue sufficiently for the Board
    to make an
    intelligent
    decision,
    Certainly under these unusual condi-
    tions,
    i.e., sluicing a relatively solid material into an area where
    it stands under
    water
    or at least saturated for some time,the permit
    would have addressed
    this
    question, and a reasonable interpretation of
    daily and intermediate cover would have ensued.
    The question that
    24—201

    —6—
    comes
    immediately to mind is whether the water or the material itself
    constituted an adequate daily cover.
    The Stipulation indicates that
    the final cover was probably
    adequate,
    but
    again
    the
    facts
    in
    the
    Stipulation are lacking.
    The Board will therefore dismiss Count II of
    the Complaint.
    The Stipulation and the Exhibits indicate that Edison, not with-
    standing its contention that a permit was not necessary, did indeed
    make a
    good
    faith
    effort
    to acquire a
    permit
    from
    the
    Agency.
    Efforts
    were made to insure
    the
    lack of environmental harm to the surrounding
    ground water,
    test wells were driven and tests conducted, the results
    of which indicate no apparent environmental damage has occurred.
    In-
    deed,
    as
    of
    September
    1,
    1976,
    Edison
    has
    been
    granted
    a
    permit
    to
    develop
    the
    disposal site at Lincoln
    Stone
    Quarry.
    Considering
    the
    lack
    of
    environmental
    harm,
    the
    cooperation
    shown
    the
    Agency
    by
    Edison,
    and
    the
    subsequent issuance of a
    permit
    by
    the
    Agency
    to
    Edison,
    the
    Board
    finds that a
    penalty
    in this
    case
    would
    achieve
    nothing
    in
    furtherance of the
    objectives
    of
    the
    Act.
    This Opinion
    constitutes
    the finding of facts and conclusions of
    law
    by
    the
    Board in
    this
    matter.
    ORDER
    It
    is the
    Order of the Pollution
    Control Board that:
    1.
    Commonwealth Edison Company
    is
    found
    in
    violation
    of
    Rule 202(b) (1)
    of
    the
    Solid
    Waste Regulations and Section
    21(e)
    of the
    Environmental
    Protection
    Act
    in
    that
    it
    operated a solid
    waste
    management site without an operating
    permit issued by
    the
    Illinois Environmental Protection Agency.
    2.
    Count II of
    the
    Complaint
    is
    hereby
    dismissed.
    I,
    Christan
    L.
    Moffett,
    Clerk of
    the
    Illinois
    Pollution
    Control
    Board,
    hereby
    certify
    the
    above
    Opinion
    and
    Order
    were
    adopted
    on
    the
    ___________day
    of4~~.
    1976
    by
    a
    vote
    of
    *
    ~hristan L. Moffe
    Clerk
    Illinois
    Polluti
    ontrol
    Board
    24
    202

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