ILLINOIS
POLLUT IO~1 CONTROL
BOARD
November
26,
1984
~q~STE
MANAGEMENT,
INC.,
Petitioner,
V.
)
PCB 84—45
)
84—61
IIA,INOIS ENVIRONMENTAL
)
84—68
PROTECTION AGENCY,
)
(Consolidated)
Respondent.
SUPPLEMENTAL OPINION
AND
ORDER OF THE BOARD
(by
.3.
Anderson):
As stated
in the Board’s Order
of October
25,
several motions
for reconsideration of the Board’s Opinion and Order of October
1,
1984, were filed on or before the October
12 deadline established
therein.
These motions are those of:
October 9
—
Topoiski,
October
10
—
Ruettiger,
Rourke,
Brockett, October
11
-
Marr,
October 12
-
the Agency, by the Attorney General.
A motion
received October
15 from Judy Garthus bearing
an October
4 date
was also accepted by the Board.
The Agency also filed
a motion
for stay of the October
1.
Order pending appellate review.
Waste Management,
Inc.
(WMI)
filed
a response in opposition to all pending motions on
October
22,
1984.
The response included motions to strike
various portions of the above—listed motions.
The various motions for reconsideration were granted in the
Board’s Order of October
1,
but
consideration of the merits of
the various motions was deferred pending receipt of
supplemental
briefs on the issue of the evidentiary standard to be applied by
the Board in permit appeal actions,
as well
as any “points of
error” previously raised.
The Agency filed its supplemental
brief on November
5,
1984 declining
to address, except in
passing, issues other than the standard of review questions.
Waste Management,
Inc.
filed a response on November 16,
1984,
which included a renewal
of its motion to strike various portions
of the Agency’s submittals.
This Supplemental Opinion and Order
disposes of
all pending
motions.
8 1-301
MOTIONS
TO
STRIKE
The
Board
will
first
turn
to
WMI’s
motions
to
strike.
WMI
objects to various
portions
of
the
citizen’s
motions
to
the
extent that they include new
factual
matters
not
previously
placed in the lengthy
record
in this matter
(see,
e.g. Topoiski
Brief,
p.
2, Rourke Brief
p.
4 regarding liner compatibility
sthdies).
The motion is granted.
However,
the Board will
riot,
as
WMI
did not, specify on a line-by-line basis which portions of
these filings
are
improper, but will instead consider only
arguments based on the law or evidence in this case.
As to the filings of the Agency, by the Attorney General,
WMI
initially objected to ~‘misrepresentationsof
fact,
mis-
characterizations of testimony,
references to matters not of
record,
.
.
.
lack
of)
proper citation to the transcript
and
vituperative
accusations
that
the
Board
has
ignored
‘the
real concerns of the Illinois citizens’
.
.
.
(WMI
October
12,
1984 Brief,
p.
1-2).
WM1
objected to the Agency’s supplemental
brief
on the grounds that it “continues the improper practice
found in its prior brief of making references to matters not of
record”
(WMI October
16,
1984
Brief,
p.
1
n.
1). WMI urges the
Board to strike such material to keep the record in this matter
clear
for the benefit of
a reviewing court.
The Board agrees with WMI’s characterizaton of r~ichof the
Agency’s briefs;
assertions and arguments of this style and
content are not acceptable
(see e.g. Agency Motion to Reconsider,
p.
2-4,
15).
The Board will
again grant WMI’s motion,
hut again
declines to embark,
as
WMI
again did not,
on
a line-by—line
analysis of 48 pages of briefs.
RECONSIDERATION OF THE
MERITS
Initially,
the Board must note that the various motions to
reconsider have challenged the Opinion and Order by generally
disagreeing with all legal conclusions and findings of the Board
adverse
to the position of the movant.
The Board will not discuss
all aspects of these various motions in detail,
but will address
only the major points.
The Board will recapitulate evidence
in
the action only to the extent necessary to deal with these points.
Intervention:
Order, Paragraph
3
At pages 2-4 of its October
1 Opinion,
the Board overruled
its hearing officer’s allowance to various citizens of inter-
ventiori
on
a “briefs only, no cross—examination” basis.
The
ruling was based on
a finding
of lack
of explicit legislative
authority for allowance of intervention in permit appeal cases,
and an interpretation that Landfill,
Inc. v.PCB,
74 xl).
2d 541,
61-302
—3—
387 N.E.
2d 258 (1978) would serve to invalidate any Board rule
purporting to grant such rights.
Various citizens
(e.y~. Topoiski
Brief
p.
3,
Rourke Brief
p.
4)
argue that the
Landfill
decision
is distinguishable,
because the landfill permit involved there
did not involve
a hazardous waste
facility.
That is,
however,
what the lawyers call a “distinction without a difference,” and
does not make the case inapplicable to this situation.
Arguments
~~oncerningthe general language of
35
Ill,
P~drn.
Code Part
103
(~jj.
Agency Motion to Reconsider,
p.
16) beg the question of the
validity of
such language,
if applicable.
The Board accordingly
reaffirms its prior Opinion and paragraph 3 of its Order.
The Board does,
however, wish to correct a common misinter-
pretation of its Opinion.
Various citizens (~g.Brockett Brief)
have read the Board’s recitation
of WMI’s
arguments concerning
lack of adverse effect at page
2
of the Opinion as
a finding of
the Board
to this effect.
The Board’s belief that
a sufficient
showing of adverse effect had been made
is indicated
in the
f!ootnote to page
4.
Standard of Review
In its initial Opinion,
the Board did not specifically
articulate the standard
of review it applies in permit appeal
cases.
The Board had, however, followed the approach established
in
its earlier cases,
This approach was best stated
in
Oscar Mayer and Co. v.
IEPA,
PCB 78—14,
30 PCB 397, 398
(1978)
T~oted for other reasons
in the passage from IEPA
,
86
Ill.
2d 390,
427 N.E. 2d 162
(1982)
appearing at p.
26—27 of the
Opinion):
“From the beginning the Board experienced some
difficulty in structuring
the hearing
on
a Section
40 petition.
One
of the continuing reasons
therefore has no doubt been the early styling of
the proceeding
in Board practice as
a ‘permit
denial
appeal.’
It
is obviously not an appellate
review of
an administrative decision, nor could
it
seem to be so when there has been no recorded
hearing and written finding of fact at the permit
issuance level.***
Under the statute,
all the
Board has anthority to do in
a hearing and
determination on
a Section
40 petition
is to
decide after a hearing in accordance with Sections
32 and 33(a) whether or not,
based upon the facts
of the application, the applicant has provided
proof that the activity in question will not cause
a violation of the Act or of the regulations.
In a hearing on
a Section
40 petition,
the
applicant u~stverify the facts of his application
as submitted to the Agency,
and, having done so,
61.303
4—
must
persuade
the
Board
that
the
activity
will
comply with the Act arid regulations.
At hearing,
the Agency may attempt to controvert the appli-
cant’s facts by cross-examination
or direct
testimony; may submit argument on the applicable
law and regulations and may urge conclusions
therefrom;
or,
it may choose to do either;
or,
it may choose to present nothing.
The written
Agency statement to the applicant of the
~p~ciflc, detailed reasons that the permit
~pplication was denied is not evidence of the
truth
of the
material
therein
nor
do any~en
cy
interpretations of the Act and regulations
therein
enjoy any~resumption before_the Board.
After
hearing,
the
Board
may
direct
the
Agency
to
issue the permit,
or order the petition dismissed,
depending on the Board’s finding that the appli-
cant has or has not proven to the Board that
his activity will not cause
a violation of the
Act or regulations.
Emphasis
added.
Various cases have upheld the Board’s determinations based
on this approach, e.g.,
IEPA
V.
IPCB,
supra,
and the validity of
the approach has been the subject of dicta,
SCA Services,
Inc.v.__IPCA,
71 Ill.
App.
3d 715,
717,
389 N.E.
2d 953 (1979)
“The
language of
Section
401
of the Act does not describe
such procedure
in the context of appellate review within the
administrative agency’s system.
It appears that the Board has
reached this conclusion.
(Citation to Oscar M~er).”
However,
the Board is not aware of
an appellate permit appeal case
in
which the application of any other standard of review was explictly
argued and addressed,
In its motion for reconsideration,
the Agency asserts that
the manifest weight of the evidence standard applies.
In support
thereof,
it cites several recent cases interpreting Section 40.1
of the Act, providing for Board review of local
government deter-
minations under Section 39.2,
of the site location suitability of
new regional pollution control
facilities.
These
are City of
Rockford v. Pollution Control
Board,
125 Ill.
App.
3d 384,
465
N.E.
2d 996
(1984);
Waste Management
of Illinois,
Inc.
v.
Pollution Control Board,
123 Ill. App.
3d 639, 461 N.E.
2d 542
(1984); City of East Peoria v.
Pollution Control Board,
117
Ill.
App.
3d 673,
452 N.E. 2d 1378,
(1984), vacated,
(No. 59110, May
term 1984)*;
E & E Haul~~j~Pollution_Control Board,
116
Ill.
App.
3d 586,
451 N.E. 2d 555
(1983).
*The Board will not consider Agency arguments based on this
c,acated case.
61-304
—5—
Primary reliance is placed on the analysis of the Appellate
Court
for
the Second District
in ç~yofRockford.
In that case,
Frink’s Industrial
Waste had argued that the E&EHaulth~ case,
in
which
the
court
had
first
adopted
the
standard,
was wrongly
decided
on
the
grounds
that
the
manifest
weight
standard
should
be
applied
only
to
an
administrative
agency
with
recognized
p~Dliution control
expertise.
The
Second
District
determined thal
it
would
adhere
to
the
standard
pending
Supreme
Court
review
(presumably
of
the
E&EHaulin~
case,
No,
58993
on
the
Supreme
Court’s
docket),
After
an
analysis
of
Section
39.2
as
establishing a “uniform set of zoning standards for the location
of regional pollution control
facilities throughout the state,”
the court went on to say that:
“Comparing section 39(a),
granting the agency
general authority to issue permits, with section
39.2,
granting the local governmental entity
authority to approve site location,
it appears
that the local governmental entity has been given
the adjudicatory function otherwise located
in the
(Illinois Environmental Protection
agency itself.
The fact that the statute contains parallel review
procedures in section
40
(Ill.
Rev.
Stat.
1983,
ch.
111½,
par.
1040,
providing for Board review of Agency
denial
of permits),
and in
section 40,1
(Ill.
Rev.
Stat.
1983,
ch.
111½,
par.
1040.1,
providing for
Board review of local governmental entity denial
of
site location approval), reinforces the view
that
in site
location
decisions
the
local
govern-
mental entity performs an adjudicatory function.
Adjudicatory decisions
made
by
an
administrativ~e
agency are reviewed under
a manifest weight of
the
evidence
standard,
See, Wells_Manufactur~
~ani
v.
Pollution Control Board
(1978),
73
Ill.
2d 226,
234,
22
Ill. Dec. 672,
383 N.E.2d 148;
Environmental Protection A
.Pollution
Control
Board (1980),
88
Ill. App.
3d 71,
77,
43
YT~~T410
N.E.
2d 98,”
465 N.E.
2d at 999.
Citing Landfill,_Inc.
for the proposition that the Board
is
riot
to become the overseer
of the Agency decisionmaking process
in the permit arena,
the Agency argues that the relative
sizes
of the appropriations to the Agency and the Board reflect a
legislative
intent to restrain the scope
of the Board’s review
of Agency permit decisions.
In its reply, WMI maintains that
given
the
lack
of
a
stated
statutory
evidentiary
standard,
the
Board-—
just as a court
reviewing
an
administrative
decision
in
such
circumstances——rTrust
conduct
a
de
novo
inquiry
into
the
issues,
Banker’s
Life
and
Casual~yço._v,NcCarth~,11 111, App.
2d 334,
137 N.E. ~d
398
(1956);
Rockfordv,_Co!ation,
115
Ill.
App.
406
(1904).
WMI
61-305
—6—
distinguishes
the
cited
landfill
siting
cases.
It notes that
these cases do not “consider whether
an administrative agency’s
review of another agency’s findings
serves
a
purpose
different
than that served by judicial review of
an
agency’s
findings”.
WMI observes that many
of the citations supporting
the
courts
manifest weight applicability findings
in the siting cases
involve judicial review
of
the Board’s
actions where Section
41(b)
of the Act specifically so provides,
or judicial review
of
agency
actions
pursuant
to
the
Administrative
Review
Act,
which also specifically provides for application
of the manifest
weight
standard
(WMI
November
16,
1984
Brief,
p.
14,
n.
5).
WMI
suggests that a principled analysis of and comparison
between
the
Agency
permitting
mechanism
of
Sections
39(a)
and
40
of the
Act
and
the
local
government
site
location
suitability
approval
mechanisms
of
Sections
39.2
and
40.1
of
the
Act
makes
clear
that
the
proceedings
are not,
in
fact,
analogous.
Local
governments’
site location decisions under Section 39.2 are to he
made
in writing,
and stating the reasons therefore,
on
the basis
of
a
transcribed
record
of
a
public
hearing;
this
hearing
has
been uniformly held by the courts to be
adjudicatory
in
nature,
~
E
&
B flauling,
supra.
In
making
permit
decisions
under
Section 39(a),
the Agency is required to provide written reasons
for
its decision only
in the event
it concludes that
issuance
of
a permit would violate the Act or Board regulations; no
reasons
need be provided
for inclusion of permit
conditions.
WMI argues
that,
in contrast to Sections 39.2 and 40.1 siting proceedings
in
which “fundamentally fair procedures” are mandated,
Sections
39(a)
and
40
dictate
no
procedures:
“No procedures are utilized to insure that
all
information necessary for that determination
is
actually
before
the
decision
makers;
no
pro-
cedures,
such
as cross—examination,
are available
to
test
the
validity
of
the
information
and
opinions relied upon
by
the
decision
makers;
no
requirement
is
imposed
that
the
decision
makers
act upon a hearing record
(indeed, no opportunity
for
a
formal
hearing
is
provided);
and, no
guarantee
is
provided
that
the
determination
is
reached by an impartial decision maker through a
proceeding where adversaries can put forth
evidence to support their respective positions.”
(WMI November
16,
1984
Brief,
p.
14).
WMI remarks that P.A.
82—682,
in adding Section 39.2 to the Act,
deleted
old
Section
39(c),
which
had
required
that:
“Immediately
upon
receipt
of
a
request
for
a
permit
or
supplemental
permit
for
a
refuse
disposal
facility,
the
Agency
shall
notify
the
State’
attorney
and
the
Chairman
of
the
County
61-306
~7-.
Board
of
the
county
in which the facility is
located and
each
member
of
the
General
and
to
the
clerk of each municipality any
portion
of
which
is
within
3
miles
of
the
facility,
prior
to
the
issuance
of
a
permit
to
develop
a
hazardous
waste
disposal
site,
the
Agency
shall
conduct
a
public
hearing
in
the
county
where
the
site
is
proposed
to be located.”
WMI therefore concludes
that
the
observation
of
the
City
of
Rockford
court
that
Section
39.2
gives
local government “the
~u~Th~atory
function
otherwise
located
in
the
Agency
itself”
is a reference to the transfer
of authority to conduct an
adjudicatory
hearing
on
site
location.
To
the
extent
that
a
deferential
review
standard
has
been
afforded
by
the
court
to
Agency
decisions
after
Section
39(c)
procedures
were
followed,
Hiilsidev~SextonSand&Grave1ç~~,
113
Ill.
App.
3d
807,
447
N.E.
2d
1047
(1983),
WMI argues,
such deference
is no longer
well-founded.
As to the Agency’s Landfill_Inc.
argument,
WMI’s response
is
that the case stands for the proposition that Board involvement
in
the
permitting
process
is
improper
to the extent that the
challenged
Board
procedural
rule
would
have
allowed
the
Board
to
“second guess” the Agency on
the
basis
of
information
not
available
to
the
Agency
at
the
time
of
permit
issuance:
“The
intervenors
attempt
to
distinguish
a
challenge
to
the
allowance
of
a
permit
under
Rule
503(a) and an appeal
from the denial
of
a permit
under section
40
on
the
grounds
that
the
former
is
not
a review 1~itan enforcement proceeding at
which additional evidence may be submitted.
If
the Rule 503(a)
proceeding is not a review
Ixit a
new determination of
an applicant’s entitlement to
a permit,
it is clearly an unauthorized assumption
by the Board of authority to grant permits
delegated by the Act to the Agency.”
74
Ill.
2d
at 448.
WMI
accordingly
urges
the
Board
to
retain
its
traditional
approach
to
permit
appeal
cases.
The
Board
is
not
persuaded
that,
as
a
matter
of
law,
pre-
cedent
exists
requiring
application
by
the
Board of the manifest
weight standard of review;
cases cited by the courts in the
Section 39.2 cases do not concern Board review of Agency actions.
As a matter of policy, the Board cannot embrace the manifest
weight
review
standard
in
permit
appeals.
Landfill
Inc.
requires
only
that
the
Board
refrain
from
purporting,
in
the
guise
of
“review”,
to
order
issuance
of
a
permit
based
on
information
which
the
Agency
did
not
have
in
its
possession
and
therefore
could
61-307
not have considered.
It does not preclude Board review of
facts
available to the Agency,
and
a Board determination concerning
Agency
application
of
~ich facts.
WMI
correctly
pinpoints
the
major distinction between the procedures
for local
siting
decisions;
transcribed hearings and
written
findings
of fact are
required
in the former
instance, and are not
in the latter.
The
problems
of
review
in
the
latter
situation,
as
identified
by
the
Board
in Osc~~y~r~
remain.
In
examining
this
issue,
the
Board
has
taken
guidance
from
renneth
cuip Davis’ Administrative
Law
Treatise.
While
Mr.
Davis
too speaks of the scope
of judicial review of administrative
decisions,
some
of
the
philosophy
applies
equally well
to con—
sieration of the Board’s review of Agency decisions.
Under the Act,
the Agency
is required to state its “reasons”
.for permit denial,
Mr. Davis explains that
“reasons
differ
from findings
of
fact
in
that
reasons
relate
to
law,
policy,
and discretion rather than to facts.”
Davis,
Administrative Law
Treatise,
Section
16.12,
p~ 476
(1958).
t3nder
the
Act,
the
Board
is required to “state facts and reasons”
for its decision
in
a written
opinion
Section
33(a).
As to findings of fact,
Mr.
Davis
notes
that
“t3he
accepted ideal,
as stated by the
Supreme
Court,
is
that
~the
orderly
functioning
of
the
process
of
review
requires
that
the
grounds
upon
which
the
administrative
agency
acted
he
clearly
disclosed
and
adequately
sustained.’”
Id.,
Section 16.01,
p.
435—436,
Mr.
Davis
further
observes
that
“the proportion of cases remanded for lack of
adequate
findings
is
much
greater
on
-iudicial
review of administrative action than
it is on
appellate
court
review
of
decisions
of
trial
courts
***;
the
explanation
for
this
greater
proportion
is
simply
that
a
reviewing
court
has
greater
freedom
to
make
its
own
disposition
of
a
case that has come up from a trial court hut that
the reviewing court often cannot make its own
disposition
of
a
case
originating
in
an
agency,
without
usurping
power
that
the
legislative
body
has placed in the agency and has withheld from the
reviewing
court.”
Id.,
Section
16.01,
p.
437.
T~s,
there
are
two
sound
policies
for
the
Board
to
reject
the
manifest
weight
of
the
evidence
standard.
The
first,
as
noted by the Board in Oscar M~yer, supra,
p.
4,
is that the Agency
itself presents
no
findings
of
fact
to
the
Board.
The
importance
of
this is
demonstrated
in this case.
The completeness of the
Agency record was established only at hearing after supplements
by the Agency and WMI
(Opinion
p.
5).
It
is
clear
from
the
record
that
various
items
of
information
within
the
possession
of the Agency were either not received or not considered by various
61-308
—9—
top-.ranking
Agency
personnel
~
evidence
of
compliance
with
a
groundwater
assessment
plan
(Opinion,
p.
29),
and
five
quarters
sample
results
post-August,
1382
showing
no
contamination
of
Well
G105 (Opinion
p.
27).
This
is not all
sinister or
surprising,
qiven the volume of paper flowing through the
Agency,
and the
~it.?ed
of management to have information
screened.
Inadvertance
can,
however, have untoward or unjust results; were the Board
to
be restricted in the scope of its review,
the Board could not
reach
the
question
of
whether
Agency
“reasons”
were
grounded
on
consideration
of less than all
of the facts available to it.
The second reason for rejection of
the
manifest
weight
test
is to allow the Board to establish
a proper record
for reviewing
appellate
courts
containing
the
findings
of
fact
and
conclusions
of
law,
including
any
quasi—legislative
interpretations
of
its
own
rules,
required
by
the
Act.
This
results
in
judicial
economy,
preventing remands
to
the
Board
of
defective
Board
records,
based on inadequate Agency records, by courts fearful
of
“usurping power that the legislative body has placed
in the
environmental
agencies.”
What test,
then,
does the Board apply?
In
1958,
Mr. Davis set forth some of the history of various
appellate review standards:
“The debate of the
19 30’s over scope of
review was largely between those who wanted broad
review or even
de novo review and those who wanted
narrow review or even no review;
the extremists,
however, moved from both ends toward the middle,
and the substantial-evidence rule prevaiiecl.***
State statutes providing for
de novo review
are often interpreted to mean review under the
substantial—evidence rule,
(footnotes omitted)”
Davis, Administrative Law Treatise, Section 29.01,
p.
116
(1958).
In discussing the substantial evidence test in his 1982 Supplement,
Mr.
Davis
observed
that:
“Probably no court and no one else disagrees
with
the
statement
in
Section
29.01
of
the
1958
Treatise
that
‘the
main
inquiry
is
whether
on
the
record
the
agency
could reasonably make the
finding.’
The
test
of
reasonableness
can
be
applied
either
to
a
factual
finding
or
to
a
finding that is based on policy or judgment and
not
on evidence.”
Davis,
Administrative Law
Treatise, Section 29.00—1,
p. 526
(1982 Supp.).
61-309
-•10—
The
Board,
in
its
Oscar
M~er decision,
has
essentially
~irticulated
its
application
of
a
type
of
substantial
evidence
test,
rather
than
a
manifest
weight
of
the
evidence
test.
As
noted
in
Oscar
Mayer,
“Agency
interpretations
of
the Act and
tegulations
.
.
enjoy
no
presumption
before the Board”,
:iupja,
p.
4,
because
this
involves
quasi—legislative
functions
~legated
to
the
Board,
and
not
the
Agency
under
the
Act.
~Thiir’
the
Board
considers
policy
reasons
advanced
by
the
Agency
in
support of determinations it has made,
the Board reaches its own
conclusions.
As
to
factual
matters,
in
Oscar Mayer
the
Board
noted that Agency “reasons
tare not
evidence of
the truth of th~~
material therein”
(Ibid.).
The Board considers the competent
evidence submitted in the Agency’s permit record as augmented by
the
hearing
record
concerning
facts
in
the
Agency’s
possession
at
the~
time
of
hearing.
The
Board
then
determines
whether
the
~gency’s
decision
to
deny
a
permit
or
impose
particular
condition~
is
supported
by
substantial
evidence
that
the
applicant
has
not
~et
his
burden
of
proof
under
Sections
39(a)
and
40
of
the
Act.
In this case, many of the Agency’s permitting decisions do
not
involve
factual
findings,
hut
instead
were
based
on
incocreci:
interpretations
of
the
Act
and
Board
rules:
~
incorrect
belief
in Agency authority to issue compliance orders and to
unilaterally modify permits
(Opinion,
p.
20,
21).
Some
Agency
“factual findings” were not supported by any evidence other than
opinion,
e.g.
lack
of
compliance
with
a
groundwater
assessment
program
(Opinion,
p.
29—30),
or were made on the basis of facts
negated
by
subsequent
facts
~
initial
sample
results
indicating
presence of contaminants followed by five quarters of “clean” tests
(Opinion p.
28—29).
Based
on
this
record,
applying
a
substantial
evidence
test
(or
even
a
manifest
weight
of
the
evidence
test)r
the
Board
cannot
sustain
the previously reversed Agency permitting
decisions.
Finally,
assuming
that
the
Board
may
correctly
take
admini-
strative
notice
of
figures
in
the
Governor’s
Budget
Book,
the
I3oard
finds
the
Agency’s
comparison
of
its
$28
million
bidget
to
the
Board’s
$888,000
b.idget
as
support
for
the
Agency’s
argument
that its reasons for permit denial
should enjoy
a presumption of
validity to be disingenuous.
The Agency is making
an “apples and
oranges” comparison of dissimilar functions; the Act charges the
Agency
with
investigatory,
enforcement,
and
permitting
functions,
and
the
Board
with
quasi—judicial/quasi—legislative
functions
in
adjudication
of
cases
and
promulgation
of
rules.
Sc~~e~of
Hear
ing
and Witness Credibil ity
The Agency cites as error the failure to allow entry into
the record of well test results obtained subsequent to the time
of
permit
denial
and
limitation
of
the
scope
of
the
testimony
of
61-310
—11—
Ors. Warner
and Hyrhorczuk (Agency Motion to Reconsider,
p.
15—16).
For the Board to have done otherwise would have been to
allow
a
blurring
of
the
lines
between
an enforcement case and
a
permit appeal,
in contravention of Landfill,
Inc.
The Agency also argues that the Board has ignored findings
oC its Hearing Officer
as to the credibility of various witnesses
concerning agreement with groundwater monitoring permit con-
ditions
(Id.,
p.
12—13).
A related argument is that if the Board
is attempting to conduct a de novo inquiry,
“it should do so by conducting proceedings
in
a
traditional fact finding role of observing the
witness
testifying
making its own credibility
judgments,
or
at
least,
force
the
Board
Hearing
Officer
to
sit
as
a
true
fact
finder
and
render
a
detailed
Opinion
as
to
the
credibility
of
the
witnesses
and
the
weight
of
their
testimony
by
his
own
observations.
In
fact,
general
comments
sub-
mitted
by
the
Hearing
Officer
on
the
credibility
of
the
witnesses
dictates
a
finding
in
favor
of
the Agency.”
~
p.
5.)
Section
40 hearings are to be conducted pirsuant to the
procedures of Section 32 and 33.
Section 32 provides that
hearings
“shall
he
held
before
a
qualified
hearing
officer,
who
may be attended by one member
of the Board
.
.
.
“
(contrast with
Section
28, requiring attendance of one member
of the Board in
rulemaking hearings).
En banc hearings before
the Board,
even
if
desirable from a party’s point of view,
are impractical
from the
point
of
view
of
having
seven,
equal
“judges”
conduct
a
hearing,
as
well
as
for
reasons
of
bedget
and
workload.
The
statute
does
not
provide
authority
for
the
hearing
officer
to
make
substantive
decisions,
or
draft
findings
of
fact
and conclusions
of law.
The
Board’s procedural
35
Ill.
Adm. Code 103.203(d)
does authorize
and require the hearing officer to provide
a statement as to the
credibility of
witnesses
“based upon
his
legal
judgment and
experience
.
.
.
(indicating
whether he finds credibility to be
at issue
in the case and if
so,
the reasons why.”
The rule goes
on to expressly state that no other statement
is authorized.
A
distinction must be drawn as between credibility based on
demeanor,
and credibility as
it relates to the weight ultimately
given to the
facts and
opinions
offered
by
the
witness.
The
detailed
credibility
statement
filed
by
the
hearing
officer
in
this case generally finds no demeanor credibility issues with any
witness.
Some
weight
of
the
evidence
concerns
are
listed
in
the
statement as to witnesses testifying on behalf
of the Agency,
as
well
as
WMI.
This type of weight of the evidence credibility
statement is not considered dispositive by the Board,
hut is
viewed
as an additional
resource for crystallization
of issues
61-311
—12—
before
the
Board.
Cf.,
Davis,
Administrative
Law
Treatise,
Section
29.01,
p.
117
(1958)
(“Both
before
and
since
the
federal
APA
an
agency
has
had power
to substitute
judgeinent
for that of
an examiner
on
all
questions,
even including
credibility of witnesses observed by the
hearing)
examiner
and
not
by
the
agency.”
(Footnotes
omitted).
The
Board
continues
to
find
that
the
question
of
WMI agree-
meet to conditions is irrelevant to the conditions’
legality.
The Board finds no issue
of personal credibility with any
witness,
and does not find that any of the professional con-
sultants engaged to testify here have provided testimony based
on
a paycheck rather than professional opinion
(cf. Garthus
Brief).
The weight given to the professional
opinions of these
~iitnessesas well
as Agency and WMI personnel was based on the
facts and legal
interpretations on which those opinions were
hased.
The Agency challenges the Board’s holding that the sampling
data relied upon by the Agency was insufficient to support denial
of the Trench II operating permit.
The Agency asserts that the
Board improperly failed to consider May,
1983 sample results
(gency Motion to Reconsider,
p.
12).
The Board’s Opinion did not discuss the May,
1983 samples
(Resp.
Exh.
5), which the Agency had not initially asserted were
the basis
for its permit denial
(R. 937).
The results of these
samples was a reading
in G105
of
7 ppb trichloroethylene and 80
pph dichloroethylene;
in W105,
10 ppb benzene,
I ppb tricholoe-
thylene;
in W106,
a trace of benzene;
in W107,
20 ppb benzene.
As to the benzene in the W wells,
Mr.
Tiurley,
head of the
Agency’s Springfield laboratory,
testified that benzene
is a
“very sensitive component to detect” using a gas chromatograph
mass spectrometer,
the detection level varying from
1 pph to
5
pph
(R.
1701—1702).
These test results were not confirmed by
retesting
(see generally R.
1442-1452),
and the record contains
no subsequent samples showing the presence of organics
in these
well s.
As to G105 results,
the May 07 ppb reading was not recon-
firmed,
and is considerably lower than the
18 ppb December,
1982
reading which was admitted to be the possible result
of
a
laboratory error
(see Opinion,
p.
27)*.
The 80 ppb dichloro—
*The Board notes that Resp.
Exh.
41,
a summary
sheet of
contaminants found in the ESL also indicates a
19 ppb
trichloroethylene reading in October
19,
1982,
althought no
laboratory sheets are included in the record.
The results of
this reading are negated by the five quarters of samples showing
no contamination subsequent to January,
1983
(Opinion,
p.
27).
61-312
—13—
~thylene
reading
was
not
reconfirrned.
In
addition,
the
.resultr
of the leachate analysis from the ESL disposal area indicates
that
this
constituent
is
not
present
in
the
leachate
at
these
levels
(Pet.
Exh.
15,
p.
2a,
2b,
2c).
In
short,
the
May
results
alone
or
in
combination
with
the
other
results
previously
discussed
may
not serve
as the basis of this permit denial.
The
Agency
has
also
challenged
the
Board’s
right
to
find
that initial
sampling data suggesting presence of chemicals close
to detection
limits
is
not——standing
alone——scientifically
valid
evidence
of anything other than the need to perform additional
testing
(Agency
Motion
to
Reconsider,
p.
13—14).
This
is
a
determination as to the weight to be given such data which is
~‘iell
within the province
of the Board’s technical
discretion.
Additionally,
the concepts
of replication and repetition
of test
results
(Opinion,
p.
28-29)
are embodied in Part 725 of the RCRA
rules.
The Agency alleges that the Board’s Opinion implies that
all
concerns of
all Agency geologists were satisfied by issuance of
the Woodward—Clyde reports (Agency Motion to Reconsider,
p.
14).
This is not the thrust of the Board’s Opinion,
p.
31—34.
The
Board has reviewed the entire body of the data available
to the
Agency.
As previously noted,
it is apparent not all
persons
testifying on behalf of the Agency did
so,
or were in
a position
to,
do so.
Considering the testimony and evidence as
a whole,
the Board continues to believe that there is substantial
evidence
confirming the site’s inherent manageability,
although the Board
again emphasizes that this issue
is not properly before
it.
(Opinion,
p.
26—27,
31—34.)
Errata_Correction
WMI and the intervenors’
have brought several
typographical
errors to the attention of the Board, which will
be corrected as
noted in the following Order (WMI October 22,
1984 Brief
p.
11,
n.
5,
Topoiski Brief
p.
2-3,
Rourke Brief
p.
1).
Upon reconsideration,
the Board declines to modify the
substantive holdings of its October
1,
1984 Opinion and Order
(but see discussion of
“Date for Permit Issuance,”
infra).
The
Board has made a review of this case,
limited to the information
before the Agency at the time of its permitting decision, con-
sistent with the approach articulated in Oscar Meyer.
However,
applying even a manifest weight of the evidence standard,
the
Agency’s previously stricken permitting decisions were contrary
to legal precedent and unsupported by a proper interpretation of
all
facts
in the record before the Agency.
61-313
—14—
MOTION TO STAY
The Agency has moved the Board to stay its Order pending
appellate review.
While the motion
is somewhat premature,
the
Board will address it at this time
in the interests of admini-
strative
economy.
The
Board
notes that the Agency’s motion
iS
limited to the issuance of the Trench II operating permit and the
5’)9 supplemental permits.
The arguments are
as follows:
Likelihood of_Success on the Merits
The Agency argues that appellate reversal
is likely because
the Board has applied an
improper evidentiary standard, has
~surped the Agency’s permitting authority,
and has rendered an
improper decision based on any evidentiary standard.
WMI asserts
that the Board has applied well established precedent concerning
both the evidentiary standard to be employed,
and the division of
functions established by the Act between the Board and the
Agency,
and that the decision
is
justified
using
any
evidentiary
standard
(WMI’s
November
16,
1984
Brief,
p.
18—24).
Irre~arable Harm to the Public and the Environment
The Agency’s arguments are based on the assumption that the
hazardous wastes disposed of in Trench II during the pendancy of
this appeal will compound any existing problems
at the site,
and
will themselves leak into the groundwater and contaminate the Des
Plajees
River.
WMI
counters
that
this
argument does not acknowledge the
fact that the Agency has stip.ilated that the design and con-
~truction of Trench II are not at
issue
(R.
529).
It further
argues that it is unlikely that all of the following circum-
stances will
occur:
failure of mechanisms to prevent leachate
formation,
failure
of the leachate collection system,
breach of
the synthetic liner,
and breach of the recompacted clay liner.
~iarmto W~I
The Agency asserts that postponement of operation of Trench
II will not substantially harm WMI,
as loss of revenues can be
absorbed by the
“world’s
largest
hazardous
waste
company”.
Citing Waste Management of Illinois v.
IPCB,
supra,
which
affirmed denial of Section 39.2 approval
for expansion of ESL,
the Agency additionally claims that there
is no need for waste
disposal capability at the existing ESL site.
WMI charges that,
in addition to the revenue losses resulting
from
the
de
facto
shutdown
of
close
to
a
year’s
duration,
that
the
Agency’s
unlawful
denial
of
it’s
property
right
to
engage
in
waste disposal
activities is itself
a source of
substantial
harm,
Martell
v. Mauzy, 511 F.
Supp.
729
(M.D.
Ill.
1981).
61-314
15—
~
~~24!a~~
The
Board
does
not
find
there
to
be
a
reasonable
likelihood
of
a
successful
Agency
appeal
of
its
decision
for
the
reasons
a’ivanced
by
W~4I,
as
well
as
the
reasons
expressed
in this Supple—
niental
Opinion.
The
Board
finds
that
total
failure
of
Trench
11
during
the
pendancy
of any appeal while
a possibility,
is
a very
remote
one.
Reliance upon any of the need findings
in
the
Waste
Mana~ernent
ESL
expansion
case
is
misplaced,
as
those
findings were predicated
on
continued
disposal
operations
assuming
continued
issuance
of
operating
permits
for
units
within
the
site
permitted
for
development
in
the
early
19 70’s
(Opinion,
p.
7).
As
to
the
relative
harm
to
parties,
the
Board
finds
thaL
the
equities
lie
with
WMI,
basing
its
analysis
on
the
Martell
case.
Martell
involves
a
suit requesting injunctive
relief
ordering
issuance
of
a
landfill
operating
permit
which
the
Agency
had
denied,
without
prior
hearing,
pursuant
to
Sectiion
39(e)(i)
of the Act.
The basis of the denial was nine instances of
alleged, but not adjudicated, misconduct on the part of Steve
Martell.
The result of the denial was a shut down of the Paxton
Landfill.
The District Court ordered issuance of the permit
pending completion
of an
adjudicatory hearing,
applying the tests
at issue here.
While the financial consequences to Paxton were
likely greater
than those to WMI
in the instant case,
the logic
of
the
Martell court’s analysis
is equally compelling
as applied
to
the
circumstances
in this action.
“The Agency plainly has a vital
interest in
ensuring the safe and proper operation
of waste
material
facilities.
Public health and safety
concerns
mandate
the
strict
oversight
of such
facilities to guard against shoddy or dangerous
conduct.
Thus the Agency may properly require
that
disposal
trenches
meet
technical
criteria
which
minimize
public
risk.
However,
this
interest is not well served by the Agency’s acton
here,
since
it is undisputed that trenches
Ti,
V,
and W conform to the Agency’s own technical and
engineering specifications.
On
several occasions
Agency personnel confirmed that the trenches had
been properly constructed and defendants have
never suggested otherwise,
It is unquestioned
that Agency concerns about the future operation of
the trenches are legitimate.
These concerns,
however,
can be met by the standard Agency
practice of regular inspection and monitoring.
Should violative conduct be detected,
the Agency
has ample enforcement powers to deal with the
situation.”
511 F.
Supp.
at 741—42.
61-315
—16—
The
motion
for
stay
is
denied.
Pate for Permit_Issuance
In its Order of October 25,
the Board stayed the effect,
pertding issuance of this Order,
o.f
its
Order
of October
1.
That
Order directed issuance of permits on November
15,
45 days after
the date of the Order.
WMI requests that the Agency be given
14
days to issue permits consistent with the October
1 Order,
asserting that the Agency has long possessed the information
needed to issue permits consistent with the Board’s Opinion.
The original time schedule would have required Agency
issuance
of
permits within 21
days
of
the
date
of
the
Board’s
Order upon reconsideration,
The October
1,
1984 Order will
be
modified to reinstate that timetable,
In the interests of
clarity,
the
Board
will
modify
its
previous
Order
to
reflect
these
new
dates,
and
will restate the balance of its October
1
Order.
This Supplemental Opinion constitutes the Board’s
Supplemental findings of
fact and conclusions
of law in
this
matter.
ORDER
A.
The Board’s Order
of October
1,
1984 is
modified upon recon-
sideration,
and is restated with these modifications
as
fol lows
1.
The Agency’s permitting decisons concerning Permit
1984—16~-SP, issued March
2,
1984,
are affirmed in part
and reversed in part.
The permit is remanded to the
Agency.
On
or before December
17,
1984,
the Agency
shall issue
a revised permit,
striking Special
Conditions
14,
16,
17,
and Special Attachment B in their
entirety, and amending Special Conditions
12 and
13 and
Attachment A., Conditions
2,
3,
4,
and
5 consistent
with the October
1 Opinion,
and the above Supplemental
Opinion.
2.
The Agency’s April
20,
1984 denial of an operating
permit for Trench 11,
and its April
30,
1984 denial of
about 599 supplemental wastestreani authorization
permits is reversed.
The Agency shall
issue these
permits on or before December
17.
3.
The September
10,
1984 motion to vacate the hearing
officer’s order granting intervention is granted.
4.
Petitioner’s various motions for default are denied.
61-316
3.
The
Board’s
Opinion
of
October
1,
1984
is
modified
as
follows to correct errata~
1.
On page
1,
in paragraph 1,
line
4,
“Elwood”
is
to
h~
substituted for
“Elmood”;
2.
On page 3,
in
full paragraph 3,
line
4,
“Section
106.202(a)”
is to be substituted
for
Section
103.202(a)”;
3.
On page 24,
in full paragraph
3,
line 4,
“Attachment A”
is to be substituted
for “Attachment B”.
4.
On
page
34,
in
full paragraph 1,
line
11
“Mr. dendron”
is to be substituted
for
“Dr.
Warner”.
The Agency’s October 12 motion
for stay of this Order is
denied.
0,
WMI’s motions of October 22 and November
16 to strike
various portions of the citizen’s October briefs and the
Agency’s October 22 motions and November
5 brief are
granted.
IT
IS SO ORDERED.
J.
D.
Dumelle
concurred,
13.
Forcade
dissented
on
Paragraph
A(3)
of
the
Order,
and
concurred in the balance
of the Supplemental Opinion and Order.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Supplemental Opinion and
Paragraphs A(1,
2,
4)
and B,
C,
and D of the Order were adopted
on
the
~26~Z
day
of
1.
~
,
1984 by a vote of
~
and
that
Paragraph
A(3)
of
the
Order
was
adopted
by
a
vote
of
.5-I
~
,~ø)
/L,L,~J
Dorothy M.
&inn, Clerk
Illinois Polluton Control Board
61-317
