ILLINOIS POLLUTION CONTROL BOARD
January 9, 1992
GALL~TINNATIONAL COMPANY,
)
)
Petitioner,
)
v.
ILLINOIS ENVIRONMENTAL
)
PCB 91-156
PROTECTION AGENCY,
)
(Permit Appeal)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
On November 15, 1991, Gallatin National Company (“Gallatin”)
filed a motion for summary judgment and a memorandum in support
of its motion. Gallatin’s motion for summary judgment involves
its appeal from the Agency’s denial of Gallatin’s May 6, 1991
request for reconsideration of certain permit conditions and
Gallatin’s June 11, 1991 request for a permit modification for
its proposed landfill in Fairview, Fulton Cpunty, Illinois.
Gallatin argues that the Illinois Environmental Protection Agency
(“Agency”) is applying an improper standard for groundwater
compliance and that the Agency failed to issue its decision on
its application for permit modification in a timely manner. On
November 25, 1991, the Agency filed a response to Gallatin’s
motion for summary judgment as well as its own motion for summary
judgment. On December 4, 1991, Gallatin filed its response to
the Agency’s motion.for summary judgment.
For the reasons expressed below, the standard with which
Gallatin is to comply is no degradation, beyond the zone of
attenuation, from the background water quality (i.e., no
degradation of pre-existing groundwater quality within 100 feet
of its facility in 100 years). Thus, no adjusted standard is
needed; the standard with which Gallatin seeks to comply is
already contained in the regulations. On the issue of whether
the Agency issued its decision on Gallatin’s application for
permit modification in a timely manner, the Board finds that the
Agency did not.
The following is a summary of the circumstances preceding
the issues before us now. On January 18, 1991, in PCB 90—183,
this Board granted a variance to Gallatin. The purpose of the
variance was to allow Gallatin time to gather and submit four
quarters of groundwater monitoring data to the Agency, via a
request for permit modification, in order to establish background
water standards after it had earlier filed a permit application
to develop and operate its proposed solid waste disposal
facility. The problem was that Gallatiri had filed its
129—39
2
application for a permit~to develop and operate its proposed
solidwaste disposal facility prior to the effective date of the
Board’s new landfill regulations which contain the new pre—
application monitoring requirement. On April 1, 1991, the Agency
issued a permit to Gallatin for the development and operation of
its “balefill”. Gallatin has appealed Conditions 36 and 72 of
that permit. The conditions require Gallatin to seek an adjusted
standard from the Board for those constituents in the groundwater
which exceeded the Board’s general water quality standards.
Then, pursuant to its variance, on May 6, 1991, Gallatin
requested the Agency to reconsider the above-mentioned permit
conditions. Specifically, Gallatin stated that the Board’s
regulations as well as the supporting documentation in R88-7 made
it clear that an adjusted standard would be necessary only if
Gallatin would cause the pre-existing background water quality
conditions to be exceeded, regardless of that quality. On June
11, 1991, Gallatin submitted an application for permit
modification to the Agency which contained the quarterly
groundwater monitoring data. The application also reiterated
Gallatin’s Nay 6, 1991 request that the Agency use the background
conditions at the site as the groundwater standard. On August
28, .1991, the Agency denied Gallatin’s permit modification. Its
stated reasons for denial were that the concentration of certain
constituents in the groundwater exceeded the Board’s general
water quality standards and that Gallatin did not obtain an
adjusted standard for those background constituents in the
groundwater that exceeded the Board’s general water quality
standards.
In its motion for summary judgment, Gallatin argues that the
35 Ill. Adm. Code 811.320, the background documents in R88-7, and
PCB 90-183 make it clear that background concentration is the
proper standard for groundwater compliance and that an adjusted
standard is required only when the pre—existing background
concentrations are exceeded. Gallatin also argues that,
notwithstanding the above, its application for permit
modification should issue by operation of law because the Agency
failed to issue a decision on Gallatin’s application for permit
modification within the time frame specified by the Board in its
January 18, 1991 Opinion and Order in PCB 90-183 (i.e., within 21
days after the permit modification was filed with the Agency) and
instead issued its decision 77 days after it received Gallàtin’s
application for permit modification.
In response, the Agency argues that 35 Ill. Adm. Code
811.320 does not specify whether the applicable groundwater
quality standards are to be the existing background
concentrations or at a level set via the adjusted standard
mechanism. The Agency also argues that it has no authority to
approve the use of background concentrations as the applicable
groundwater quality standards because it would, in effect, be
granting the facility an adjusted standard for constituents
129—40
3
exceeding the Board’s water quality standards. As for Gallatin’s
argument that the Agency issued an untimely denial of its
application for permit modification, the Agency argues that the
Agency issued its denial within the 90 day deadline set forth in
Section 39(a) of the Environmental Protection Act (“Act”), Ill.
Rev. Stat. 1989, ch. 111½, par. 1039(a), and 35 Ill. Adm. Code
813.103, 8134.201, and 813.202, and that the Board has no
authority to shorten the statutory review period and, in effect,
amend the Act.
The Board’s regulations make it clear that background
concentration is the proper standard for groundwater compliance
and that an adjusted standard is required only when the pre-
existing background concentrations will be exceeded.
Specifically, 35 Ill. Adm. Code 811.320(a) (1) provides that
“gJroundwater quality shall be maintained at each constituent’s
background concentration, at or beyond the zone of attenuation,”
and 35 Ill. Adm. Code 811.320(a) (1) (A)—(B) provides that the
applicable groundwater standard for any constituent shall be
“tjhe background concentration”, or an adjusted standard.
Finally, 35 Ill. Adm. Code 811.320(d) (1) provides that
“b)ackground concentrations...shall be used for the purpose of
establishing groundwater quality standards.
. . .“
In addition, in its Response to Additional Comments on
Proposed Pars 807. and 810 through 815 (June 7, 1991), in R88—7,
the Board’s Scientific and Technical Section concluded:
for the situation in which the background is above an
existing Board established standard for a specific
monitored constituent, the STS had recommended that the
lower of the two, namely the Board established standard
would be the applicable standard. The STS had intended
that the operator would apply for an adjusted
groundwater quality standard.
..
h)owever, after
reconsideration, based on the comments and hearing
testimony, STS agrees that filing an adjusted standard
each time the background concentration is above a Board
established standard may not be feasible.
(.I~.
pp. 25—26)
The foregoing expresses the Board’s intent to establish a
non-degradation standard (i.e. 100 feet in 100 years standard) as
the compliance standard for landfill facilities. A.n adjusted
standard procedure is applicable only when a facility seeks to
alter the existing background quality at the compliance point
rather than comply with the non-degradation standard.
In fact, it is clear from the Board’s decision on Gallatin’s
variance petition in PCB 90-183 that the background concentration
is the proper standard for groundwater compliance. In that
129—4 1
4
Opinion, the Board noted, in part, that:
It is...necessary for Gallatin to show that there will
be no increases in the concentrations of constituents
above the background at a compliance point (beyond 100
feet) in 100 years, as a result of operations at the
facility. However, the specific numerical
concentrations that are established as background are
needed, and must be included in a permit, because they
become the groundwater quality standard applicable to
th~tsite to show compliance.
Pursuant to the Board’s Order, Gallatin determined the applicable
background groundwater quality standard at the site through four
quarters of groundwater monitoring. Because Gallatin has
demonstrated that it can meet the non—degradation standard
already contain in the regulations, no adjustment needs to be
requested or granted. The Board notes that the same non—
degradation standard was proposed as the applicable standard at
the beginning of, and remained throughout, the R88-7 proceeding.
The Board also points out that there are inherent
enforceability problems in requiring an entity who had nothing to
do with the pre—existing background exceedence to clean it up,
and certainly not as a condition of a pernhit. Gallatin is a new
facility and has not even been alleged to have contributed to a
degradation of pre-existing water quality. In fact, in the PCB
90—183 variance, in order to assure that Gallatin’s construction
activity would not affect the background water quality, the Board
specifically placed a 500 foot minimum distance limitation
between such activity and its groundwater monitoring wells. (See
PCB 90-183, p. 11, Condition 1). In so saying, of course, the
landfill regulations do not preclude the Agency from bringing an
enforcement action against any person, Gallatin included, for
violating any applicable standard. We also note that we agree
with Gallatin in that the Agency’s arguments are at odds with
good public policy; if a landfill operator were expected to meet
the Board’s general water quality standards where the pre-
existing water quality is substandard through no fault of his
own, it would encourage landfill operators to build in areas of
high quality potable groundwater, rather than where the pre-
existing groundwater is of substandard quality and the general
standards could not be met.
In summary, we believe, and so find, that the R88-7 record
supports and 35 Ill. Adm. Code 811.320 clearly by its terms, sets
the sole landfill compliance standard as background groundwater
quality unless an adjusted standard allows otherwise. As
explained above, we suggest that the Agency’s concern that
issuing a permit somehow would condone a violation by Gallatin of
the general water quality standards is misplaced.
129—42
5
Notwithstanding the above, the Board wishes to address the
issue of whether the Agency should have issued its decision
within the time frame specified in the Board’s January 18, 1991
Order. The last sentence of Condition 4 of the Board’s January
18, 1991 Order in PCB 90—183 states as follows:
...The Agency’s decision on the permit modification
shall issue no later than 21 days after permit
modification is filed.
Moreover, the last sentence of Condition 3 states:
...Such application for permit modification) shall not
constitute a new application for purposes of
calculating the Agency’s decision deadline date.
Although the Agency is correct that Section 39(a) of the Act
provides that the Agency has 90 days to review a permit
application, the Agency did not file either a motion for
reconsideration pursuant to 35 Ill. Adm. Code 101.246, nor did it
challenge the Board’s power to impose the conditions via a
petition for review to the appellate court pursuant to Section 41
of the Act. Accordingly, the Agency has waived any objection
that it may have had regarding the imposition of the above
conditions. Moreover, if the Board were to rule in favor of the
Agency on this issue it would, in effect, be condoning the
Agency’s decision to disregard the Board’s Order as well as
punishing Gallatin although Gallatin complied with and relied
upon the deadlines set forth in the Board’s Order.
Accordingly, for the foregoing reasons, Gallatin’s motion
for summary judgment is granted and the Agency’s motion for
summary judgment is denied.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Gallatin’s National Company’s motion for summary judgment is
granted. The Illinois Environmental Protection Agency’s motion
for summary judgment is denied. The Board strikes Conditions 36
and 72 of the Illinois Environmental Proteôtion Agency’s April 1,
1991 permit and reverses the Illinois Environmental Protection
Agency’s August 28, 1991 denial of Gallatin’s application for
permit modification. The Illinois Environmental Protection
Agency shall reissue its April 1, 1991 permit accordingly.
Section 41 of the EnvironmentalProtection Act, Ill. Rev.
Stat. 1989, ch. 111½, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The rules of. the Supreme
court of Illinois establish filing requirements.
129—43
6
IT IS SO ORDERED.
Board Members J. Theodore Meyer and N. Nardulli dissented.
I, Dorothy N. Gun, Clerk of the Illinois Pollution Control
Board, hereby certif that the above Order was adopted on the
7~Z
day of
(~2~I~
,
1992, by a vote of
Dorothy M.,41n, Clerk
Illinois P~lution Control Board
129—44