ILLINOIS POLLUTION CONTROL BOARD

November 19, 1981

REYNOLDS NETAL COMPANY,

Petitioner,

)

PCB 79—81

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION (by D. Anderson):

I dissent from the Board’s November 19, 1981 Order denying

Reynolds’ petition for rehearing concerning the Board’s Order

of August 20, 1981, which denied Reynolds’ request for a vari-

ance from Rules 303, 305(a) 

and

305(b) of Chapter 7. I would

grant the motion, reconsider the August 20 Order, and dismiss

the petition for lack of information and failure to demonstrate

arbitrary or unreasonable hardship.

I have three major areas of disagreement with the majority

Opinion:

1.  The facility is clearly exempt from the permit

requirement, assuming an “on—site” facility is

involved.

2.  The operating requirements of Part III of Chapter 7

are applicable to the facility whether a permit

is required or not.

3.  It is Reynolds1 responsibility to establish suffi-

cient facts to show 

is entitled 

to a variance.

This case concerns the on—site disposal exception of

§21(d) which until recently provided:

“(No person shall:),.,conduct any refuse collection

or refuse disposal operations, except for refuse gener-

ated by the operator’s own activities, without a permit

granted by the Agency upon such conditions...”

There are three cases which have been cited as holding the

permit

is required:

44—57

—2—

1.  I~EPAv. City of Pontiac, PCB 74—396, 

18 PCB 303,

(August 7, 1975);

People v. Commonwealth Edison, PCB 75-368, 24 PCB

200, (November 10, 1976; and,

3.

R. E. Joos Excavating Co. v.

IEPA, 58 Ill. App 3d 309;

374 NE 2d 486 (3d Dist. 1978)

The Pontiac case involved a question of whether a city-

owned landfill site was “on site” with respect to the entire

city’s garbage. Joos involved disposal at one site of waste

generated by the owner at another site. The language in these

cases concerning “minor amounts” of refuse and “quarries” is

incidental to the basis of these decisions and is dicta.

In the Commonwealth Edison opinion it is unclear whether

the quarry was contiguous with the power plant and owned by the

generator. The decision purports to be controlled by Pontiac,

which seems to infer that it was a question of whether the

disposal was “on site”. However, the majority cites it as

holding a permit to be required for on site disposal of large

amounts of waste in a quarry. The case was apparently never

appealed.

Since the August 20 decision, the §21(d) exemption has been

amended by SB 875 (P.A, 82-380). Section 21(d) now provides:

(No person shall:) conduct any. .,waste disposal...operation:

1.  Without a permit granted by the Agency or in viola-

tion of any conditions imposed by such permit...;

provided, however, that no permit shall be required

for any person conducting a...waste disposal...

operation for wastes generated by such person’s own

activities which are stored, treated, disposed or

transported within the site where such wastes are

generated; or,

2.  In violation of any regulations or standards adopted

by the Board under this Act.

The legislation now states the holding of the Joos and

Pontiac cases clearly: the wastes must be generated by the

operator’s activities at the disposal site. There is nothing

in it about quarries or large amounts of refuse, codifying the

purported holding of Commonwealth Edison. The Board took an

active role in the drafting of this legislation. Had it wanted

language about quarries or size it could easily have been inserted.

Before SB 875 it may have been possible to further limit the

exception through case law; this is no longer possible.

44—58

The amendments also clarify another point in controversy:

whether the Board has authority to impose operating requirements

on facilities which are exempt from the permit requirement

(R80-20, R8l-22), This has been answered affirmatively by

splitting the permit and operating requirements into subsections,

with only the permit requirement conditioned on whether an

on-site facility is involved.

It should be

pointed out specifically that the majority

opinion does not hold that the Board lacks authority to impose

on—site operaETffg requirements, The majority rather holds that

the Chapter 7 operating requirements (Part III) apply only in

the context of a permit. This holding is at least consistent

with the legislation. However, it is not consistent with the

language and history of Chapter 7.

Rules 303 and

305 are stated in prohibitory terms directly

applicable to the public, and are only incidentally rules

directing the Agency

to write permit conditions. Throughout

its history the Board has consistently held that the operating

requirements of

Part III are directly applicable to the public

whether or not there

is a permit. Failure to apply cover is

nearly always alleged in open dumping and landfill enforcements

(People v. Giachini, PCB 77-143, 33 PCB 547, Nay 24, 1979;

IEPA v. Caristrom, PCB 78—153, 35 PCB 167, August 9, 1979).

This

is consistent with Rule 208 which provides that the

existence of a permit is a defense only to the permit require-

ment. This was a central policy of the older Board chapters

and is the basis of the Supreme Court1s decision striking down

third party permit appeals: Agency permits do not cut off the

public’s right to bring an enforcement action based on violation

of the Board’s operating standards (Landfill Inc. v. IPCB, Septem-

ber 1978). The majority apparently has held that Part III is

no longer enforceable,

Part of the majority~sconcern arises from a fear that

compliance with Part III is impossible for many types of on-site

“pits, ponds and lagoons.” A better holding would limit the

applicability of Part III to traditional landfilling operations,

for example, holding the operating standards inapplicable to

such things as sludge drying beds, In this particular case,

Reynolds is engaged in a traditional landfilling operation

squarely under Part III, It must voluntarily get a permit with

adjusted conditions from the Agency or else it needs a variance

from the Board.

Reynolds apparently

operates the quarry on a contiguous site

under a long term lease with the federal government (Motion, p. 5).

This raises a serious question as to the scope of the on—site

44—59

—4—

exemption.

The Board at first found that this was an indepen-

dent basis for its finding that a permit was required.

The

Board then withdrew this finding, stating that “the record is

insufficient with respect to Reynolds’ rights and obligations

under 

its lease agreement to establish the lack of an ongoing,

extended responsibility for the subject site”. This ignores

the provision that the burden of proof is on Reynolds (~37 of

the Act)

As is discussed below, I would insist on details

in a new variance petition.

I would dismiss the petition with leave to refile on the

following basis:

Rules 303 and 305 provide that the Agency can approve

alternative modes of operation in individual permits.

However,

Reynolds has no operating permit.

Section 21 does not prohibit

Reynolds from applying for a permit or the Agency from issuing

a permit in spite of the exception.

Had Reynolds pursued this

option, approval of alternative modes of operation would have

been governed by Section 39(a) concerning imposition of permit

conditions. Reynolds has, however, elected to proceed by the

variance route and must therefore demonstrate arbitrary or

unreasonable hardship (Sections 35 and 36).

Reynolds has estimated that compliance would cost $108,000

for a road to the fill face and about $425 per day to apply

daily cover (2:12). The Agency has proposed that the Board

adopt new regulations which would eliminate the requirement

that operators burying nonputrescible construction waste form

cells 

and

provide daily and intermediate cover (R80—20). In

view of the low danger of this type of waste, the Board would

certainly accept Reynolds’ expenses as unreasonable hardship if

this were a new operation.

The problem lies in the material

known to be already in the landfill

and the absence of adequate

information concerning all that is present.

Although only

inert material will go into the landfill in the future, this

represents 

the continued operation of a general or possibly

a hazardous waste site,

Reynolds is asking the Board to approve an alternative

mode of operation without fully disclosing the nature of the

wastes already buried, As operator of the site Reynolds ctas

a duty to discover and disclose the contents of the site.

The

evidence is not convincing that enough effort has been made in

this direction.

The site is presently producing leachate which could

produce major pollution problems except for the dewatering

activities

in the Material Service quarry (Ex. 1, p. 1, 15;

2:53). Reynolds has no control over this (2:45). The variance

44—60

—5—

would be more acceptable if Reynolds obtained an agreement from

Material Service to continue dewatering, or if the parties

proposed a mechanism whereby any variance would be reviewed

upon termination of dewatering. This could be done by a new

variance application or a plan submitted for Agency approval.

Any

variance granted by the Board could be construed as

authorizing a continuation of leachate collection by use of the

adjacent quarry or as an authorization for Material Service to

pump and discharge untreated leachate. This could involve

violations of the Act, Board rules and rights of Material

Service.

Any variance granted may require appropriate condi-

tions or a disclaimer 

of any unintended effect, or a variance

for Material Service. The parties have not addressed this.

There has been no attempt to sample the visible discharges

from the wall which separates Reynolds from the quarry. This

evidence, which could be persuasive as to the nature of the

leachate produced, is missing.

By asking the Board to approve the requested variance,

Reynolds is in effect asking the Board to approve a final

closure plan for what may be a hazardous waste site. The Board

is concerned that any variance granted would in the future be

construed as res judicata on closure, relieving Reynolds of the

duty to cure any

pollution problems which may arise (35 111.

Admin. Code §725.210; 5 Ill, Reg. 9781, October 2, 1981).

The

variance would be more acceptable to the Board if the parties

could elaborate on Reynolds’ future responsibilities. 

It may

be necessary to impose a condition limiting the effect of any

variance.

Reynolds leases the landfill site which

is

adjacent to the

plant which 

it owns (Stip. 1).

The

identity of the owner was

not disclosed in the record, There

is no indication of any

agreement between Reynolds

and

the

owner fixing responsibility

for closure and no commitment from Reynolds to close the site.

Any

future variance petition would 

he more acceptable if this

were addressed.

Reynolds has not given a date for 

final closure of the

site.

It

is not good to have this site only partially filled

and collecting water to produce leachate.

The Board would be

more likely to grant a future variance if it were conditioned

on a date for final closure. A variance without a date for

closure could be construed as a permanent variance contrary

to the intent of Sections 35 and 36(a).

Even assuming that hazardous waste is buried in the site,

any final compliance plan probably involves filling the site

with inert material, followed by final cover and grading to

44—6 1

—6—

prevent

the passage of surface water 

through the waste to

produce leachate. The Board should acknowledge that Reynolds’

actions in placing construction rubble in the pit further this

scheme. However, depending on the exact nature of the refuse

and

the

possibility that Material Service may discontinue

pumping, it may be necessary that Reynolds immediately spread,

compact, apply daily cover, 

and commence pumping water from

the fill face.

Section 35(a) of the Act authorizes the Board to grant

variances upon a showing of arbitrary or unreasonable hardship.

The intent of the Act is that the Board should balance hardship

against the potential for damage to the environment 

and

public

health. From the evidence before it, the Board could not find

that the above alternative imposes arbitrary or unreasonable

hardship in light of the potential danger.

The petition should be dismissed with leave to file a new

petition addressing the noted difficulties.

Donald 

~•.

Anderson, Board Member

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, do hereby certj~fy that the ~aboveDissenting

Opinion was filed on the

day

1981.

Christan L. Mof~e~/.’Clerk

Illinois Pollution ~ontro1 Board

44—62