ILLINOIS POLLUTION CONTROL BOARD

July l0~ 1975

CITY OF WOODSTOCK, a municipal

corporation,

Petitioner,

vs.

)

PCB 74—210

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

MICHAEL CALDWELL, Attorney for Petitioner

KURT ADAMSON, Attorney for Respondent

OPINION AND ORDER OF THE BOARD (by Mr. Henss):

Woodsteck initially requested variance from Sections 22(a)

and 22(d) of the Environmental Protection Act and from certain

conditions of its sanitary landfill permit #1972—68 in order to

operate its landfill for a period of three years without a

leachate collection and monitoring system. The leachate col-

lection system had been required in a permit issued to Woodstock

by the EPA.

The City of Woodstock failed to appeal the permit conditions

pursuant to Section 40 of the Environmental Protection Act and

Rule 206(b) of the Solid Waste Regulations but instead chose to

seek variance.

As this case progressed through Variance Petition, Amended

Petition for Variance, the Agency’s Answer and Recommendation,

Second Amended Petition for Variance, the Agency’s Amended

Recommendation, Petitioner’s Reply to Amended Answer and Recom-

mendation, the Agency’s Modification to Amended Recommendation

and Petitioner’s Reply to Modification to Amended Recommendation,

the precise type and extent of relief sought was considerably

altered. Woodstock now requests variance from its permit

conditions so that the landfill can be closed without installation

of a leachate collection system.

The landfill which was the subject of the permit and this

variance proceeding is no longer being operated. By agreement of

18 —4

---

—2—

the parties the sole issue to be resolved by the Board is

whether in this variance proceeding, the Board can and/or

should require that all refuse collected in Woodstock,

pursuant to the current waste disposal contract between the

City and an independent waste disposal service, be disposed

of at a site which holds a valid operating perrait from the

Agency. We will briefly state the history of this proceeding

prior to deciding that issue,

The Stipulation of Facts shows that Petitioner received

a permit from the Agency

on October 27, 1972 to operate its

46 acre solid waste management site, This permit was con-

ditioned upon the installation of a leachate collection and

monitoring system designed to protect the waters of Kishwaukee

Creek.

Leachate discharges into Kishwaukee Creek originate in

areas of the landfill which have been under cover for a con-

siderable period of time. Samples taken and analyzed by the

Agency indicate that the water quality standards applicable

to Kishwaukee Creek are not now being violated as a result of

leachate discharges from this landfill. The Agency anticipated

that leachate might cause a water quality problem at some time

in the future.

After receipt of the permit, Petitioner contracted for a

study which would evaluate the capacity of the Woodstock sanitary

landfill. This study concluded that the estimated life of the

landfill did not exceed five years. The estimated cost of the

leachate control system for the portion of the landfill already

filled

at the

time of the evaluation report was $60,000. This

cost. is now estimated to be in the neighborhood of $100,000.

The leachate control

system was not installed. Instead,

upon recommendation of its City Manager, the City of

Woodstock

solicited bids from collectors and scavengers for the collection

and disposal of residential solid waste. On December 17, 1974

Petitioner entered into a franchise with the McHenry-Woodstock

Disposal Company for the disposal of residential waste. On

that same date the City of Woodstock voted to close its solid

waste management facility effective January 1, 1975.

Operation of the Woodstock landfill ceased on January 1,

1975. No dumping has occurred at the landfill since that date.

Studies by the Illinois State

Geological Survey show that a

ground water mound has formed beneath the landfill site. This

mound acts to cut off the flow of other ground water through

the site and into Kishwaukee Creek. The parties agree that final

cover and contouring of this site will substantially reduce the

present levels of infiltration creating the leachate discharges

and will act to improve the water quality of Kishwaukee Creek.

18—5

---

—3—

The Agency recommends the grant of variance excusing

Woodstock from installation of the leachate control system.

The Agency, however, recommends that certain conditions be

imposed on this variance.

The only condition opposed by

Petitioner is

the requirement:

“that all waste collected from

residences within

the City

of Woodstock, pursuant to contract or

contracts entered into by the City of Woods tock

under a bid advertised and received by the Wood-

stock City Council on November 19, 1974, shall

be disposed of only at a site or sites which

have received an Environmental Protection Agency

refuse disposal permit from the Division of Land

Pollution Control or sites which had been granted

a variance from said permit requirement by the

Illinois Pollution Control Board.’’

Petitioner argues that this Board has no authority to

impose the condition suggested by the Agency; that the con-

dition is not contemplated by the Regulations and bears no

reasonable relation to the requested variance. Woodstock

further contends that responsibility for enforcement of the

law regarding permits rests with the Agency and objects

most strongly to the Agency’s attempt to shift that enforce-

rnent responsibility to the City. Petitioner claims that,

under Owens

v.

Green (400 111.380), such a course would con-

stitute an unwarranted delegation of legislative authority.

The Agency argues that the Board has authority to impose

the condition under Section 36(a) of the Environmental

Protection

Act which

provides:

“In granting a

variance the Board may impose such

conditions as the policies of this Act may require.”

The Agency further states that it is a statutory policy to prevent

the pollution or misuse of land and to prevent any refuse

collection or refuse disposal without an EPA permit.

We are not told whether the landfill

which now

receives

the residential waste does in fact have a permit issued by the

Illinois Environmental Protection Agency. We are not told

whether the refuse collector has a permit or if that permit

provides for the disposal of refuse at Agency penititted disposal

sites. It seems to us that this particular variance proceeding

is not a very good vehicle for determining the legality of the

current disposal operations in Woodstock.

~8—6

---

—4—

The substance of the variance request is that Woodstock

be authorized to close its landfill without installation

of

a leachate control system which had been included as a con-

dition of its operating permit.

The parties are in agreement

that this can be done without damage to the environment.

We

have no difficulty at all in allowing that variance.

The Agency’s attempt to impose an additional enforcement

burden on the City is not properly a part of this proceeding.

If the

Woodstock residential waste is taken to a landfill,

then that landfill must be permitted by the

Environmental Pro—

tection Agency whether such language is included in the

franchise or not and regardless of the intent of the City.

If a permit has not been granted then the EPA can quite easily

file an enforcement action before this Board. Any duties which

the Agency has with regard to such investigation

and enforcement

proceeding cannot be delegated away.

Section 4(e) of the Act provides that:

“The Agency shall have the duty to investigate

violations of this Act or of Regulations adopted

thereunder, or of permits or terms or conditions

thereof, to prepare and present enforcement cases

before the Board and to take such summary

enforcement action as is provided for by Section

34 of this Act.~

it is clear that all landfill sites in Illinois must submit

to the permit procedure.

The current dispute is no more than

~

argument over which party shall move forward to enforce the

~aw.

The law authorizes enforcement actions to be filed by a

municipality but

we will not require the municipality to do so,

at

least not within the context

of this current variance proceeding.

~e cannot infer that the

City of Woodstock has deliberately entered

into a

franchise providing for the disposal of waste at a non—

permitted site.

Such a provision would not be effective.

The

law is to be enforced, and when the issue is properly presented

to us we absolutely require that a permit be obtained for operation

of a landfill.

In this case, the franchise agreement does contain the

following language:

“The contractor agrees to comply at all times with

the proper laws and ordinances of the City of

Woodstock, the County of McHenry and the Rules and

Regulations of the State of Illinois at any time

applicable to the operation of the contractor under

this franchise.”

18

—7

---

—5--

We conclude

that the City of Woodstock has acted reasonably

in complying with the requirements of the law.

This Opinion constitutes the findings of fact and

conclusions of law of the Illinois Pollution Control Board.

ORDER

It is the Order of

the

Pollution Control Board that:

1.

Variance is granted during the closing of the

Woodstock landfill site from the conditions of Permit

*1972—68, issued by the Environmental Protection Agency

to the City of Woodstock, pertaining to installation

and operation of a leachate discharge and monitoring

system at the Woodstock landfill, and said conditions

are hereby declared inoperative.

2. City of Woodstock shall cause its

landfill site

to be properly

closed in conformance with the Illinois

Solid Waste

Regulations within 60 days of the date of

this Order.

3. City of Woodstock shall not reopen its sanitary

landfill site for disposal of refuse without having

first secured all required permits from the Environ-

mental Protection Agency.

4. The City of Woodstock shall take quarterly

samples of the Kishwaukee Creek at three locations to

be

determined by the Agency. The samples taken at

these

locations shall be analyzed for total dissolved

solids, chlorides and total iron. Reports of the

analyses for the above samples shall be submitted to

the Agency on or before the 15th day of January, April

July and October for a period of three years from the

date of this Order. The first report shall be due

October 15, 1975.

I,

Christen L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the a ove Opinion and Order was ad ted

the ____________day of~

,

1975 by a vote of

-~

Illinois Polluti

:ontrol Board