ILLINOIS POLLUTION CONTROL BOARD

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

(Permit Appeal – Land)

ILLINOIS ENVIRONMENTAL

Elias, Meginnes, Riffle & Seghetti, P.C.

416 Main Street, Suite 1400

Peoria, Illinois 61602-1611

Claire Manning

Brown, Hay & Stephens, LLP

205 S. Fifth Street, Suite 700

Springfield, Illinois 62701

PLEASE TAKE NOTICE that on this date I electronically filed with the Clerk of the

Pollution Control Board of the State of Illinois the following instrument(s) entitled POST-

HEARING BRIEF OF RESPONDENT.

Respectfully Submitted,

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Dated: November 28, 2007

Electronic Filing: Received, Clerk's Office, November 28, 2007

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEORIA DISPOSAL COMPANY,

(Permit Appeal – Land)

ILLINOIS ENVIRONMENTAL

POST-HEARING BRIEF OF RESPONDENT,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

NOW COMES the Respondent, Illinois Environmental Protection Agency (“IEPA”), by

and through its attorney, Michelle M. Ryan, Special Assistant Attorney General, and states as

follows:

INTRODUCTION

This is an appeal of a denial letter dated August 30, 2007, wherein IEPA announced its

determination that local siting approval was required pursuant to Section 39.2 of the

Environmental Protection Act, 415 ILCS 5/39.2 (2006) (“Act”), prior to issuance of the

requested permit modification, Log No. B-24-M-58. Due to this threshold issue, IEPA did not

complete a technical review of the application.

Transcript, pp. 29-30.

At hearing, the parties filed a stipulation of facts as Joint Exhibit 1, which will not be

restated here. Although the parties agree on all the material facts in this case, we reach opposite

IEPA denied this application under the authority of 35 Ill. Adm. Code 705.128(b), prior to initiating the formal

application modification and review process found in 35 Ill. Adm. Code 705.128(c) and 35 Ill. Adm. Code

705.Appendix A. Although disputing the appropriateness of the relief requested, IEPA concurs with the Petitioner

that the proper request to be made at this stage is for remand to IEPA for full technical review, rather than for the

Pollution Control Board (“Board”) to issue the permit over IEPA’s denial.

Electronic Filing: Received, Clerk's Office, November 28, 2007

conclusions on the application of law to those facts. IEPA acknowledges that the law applicable

to the Peoria Disposal Company (“PDC”) facility in general can be misleading when applied to

the sole issue in this case, which is the need for local siting approval. This brief will endeavor to

assist the Board in focusing on those portions of the law that are relevant to the issue at hand.

ISSUE PRESENTED

Whether local siting approval is required prior to issuance of a permit modification to

expand the PDC facility through construction of the proposed Residual Waste Landfill (“RWL”).

ARGUMENT

PETITIONER IS NOT EXEMPT FROM LOCAL SITING APPROVAL, BECAUSE IT IS NOT A WASTE

“GENERATOR” FOR THAT PURPOSE

The requirement of local siting approval is defined in several parts throughout

interrelated sections of the Act. Section 39(c) initially limits IEPA’s authority to grant a permit,

and states in relevant part: “[N]o permit for the development or construction of a new pollution

control facility may be granted by the Agency unless the applicant submits proof to the Agency

that the location of the facility has been approved…in accordance with Section 39.2 of this Act.”

The term “new pollution control facility” is defined in Section 3.330(b) of the Act to include

three circumstances. The situation applicable in this case is found in Section 3.330(b)(2): “the

area of expansion beyond the boundary of a currently permitted pollution control facility.” It is

undisputed that PDC operates a currently permitted pollution control facility (Joint Exhibit 1 at

#1), and that the proposed RWL would represent an expansion beyond the vertical, horizontal

and capacity-related boundaries of that permitted facility (Joint Exhibit 1 at #3 and #5;

Petitioner’s Brief at 2).

Electronic Filing: Received, Clerk's Office, November 28, 2007

However, in order to qualify as a “new pollution control facility,” a site must logically

first be defined as a “pollution control facility” pursuant to Section 3.330(a). Under this section,

landfills are classified as pollution control facilities, unless they meet one of the listed

exemptions. The only exemption that Petitioner is attempting to claim is the part of the

characterization that states:

The following are not pollution control facilities:…(3) sites or facilities used by

any person conducting a …waste disposal…operation…

for wastes generated by

such person’s own activities

, when such wastes are…disposed of…within the site

or facility owned, controlled or operated by such person, or when such wastes are

transported within or between sites or facilities owned, controlled or operated by

such person….”

Section 3.330(a)(3) of the Act (emphasis added).

It is in the interpretation of the emphasized phrase “for wastes generated by such person’s own

activities” that IEPA disagrees with Petitioner.

The Act defines a “generator” in Section 3.205 as “any person whose act or process

produces

waste” (emphasis added). (As explained in further detail below, it is this definition,

and no other, that controls in this case.) The term “produce” is not defined in the Act, but a

dictionary definition includes, “1. To bring forth; yield. 2. To create by mental or physical

effort. 3. To manufacture. 4. To cause to occur or exist; give rise to. …” A

MERICAN HERITAGE

DICTIONARY 988 (2d College Ed. 1991). This is the flaw in Petitioner’s analysis: PDC does not

“produce” waste by bringing it forth, creating it, manufacturing it, or causing it to exist. PDC

treats

the waste brought to its facility by the people who did “produce” it. The fact that PDC

changes the physical and/or chemical nature of the waste it receives into its Waste Stabilization

Facility (“WSF”) defines PDC as a “treater,” not a “generator” under this Section of the Act.

See

Section 3.505 (definition of “treatment”). Further, the complete phrase in Section

3.330(a)(3) is “for wastes generated

by such person’s own activities

” (emphasis added). This

Electronic Filing: Received, Clerk's Office, November 28, 2007

phrase implies that there is only one “person” involved in the generation of this category of

waste. For this reason, IEPA submits that the fact that the waste entering the WSF comes from

off-site (Transcript, pp. 22-23) is relevant to the “generator” of the waste coming out of that

treatment unit. PDC’s “own activities,” which include adding reagents, serve to treat other

people’s waste, not to generate it.

SECTION 39(H) OF THE ACT SUPPORTS IEPA’S INTERPRETATION

Section 39(h) of the Act does not provide Petitioner with the altered definition of the

term “generator” that it seeks for this case. Section 39(h) applies solely to hazardous waste

stream authorizations, not local siting review.

By its own terms, Section 39(h) is limited: “

For purposes of this subsection

(h), the term

“generator” has the meaning given to it in Section 3.205 of the Act, unless: (1) the hazardous

waste is treated…prior to disposal, in which case the last person who treats…the hazardous

waste prior to disposal is the generator” (emphasis added). Clearly, the statute defines PDC as

the “generator” of the residual waste from the WSF, but

only for purposes of waste stream

authorizations

. In the case of

Envirite Corp. v. Illinois EPA

, PCB No. 91-152 (December 19,

1991), cited by Petitioner in its brief (pp. 17-18), the Board likewise held that with respect to

treated residue, PDC was the “‘generator’ of the specific hazardous waste stream and the owner

and operator of the disposal site

for purposes of Section 39(h)

”

Id.

at 5 (emphasis added). The

Supreme Court in upholding the Board was less clear, stating only that PDC “was the generator

of this specific hazardous waste stream.”

Envirite Corp. v. Illinois EPA

, 198 Ill. Dec. 424, 427

(1994). However, in agreeing with the Board on the issue presented, the Supreme Court clearly

did not expand the definition, as Petitioner suggests, but concurred in the Board’s interpretation

of the issue for purposes of 39(h) waste stream authorizations. While waste stream

Electronic Filing: Received, Clerk's Office, November 28, 2007

authorizations were previously handled by IEPA as separate documents,

they are now

incorporated into the permit for each facility. Transcript, p. 31. Therefore, the precise issues

raised in the

Envirite

case would no longer be raised under the current procedures.

More importantly, a careful reading of the definition in Section 39(h) demonstrates that

IEPA’s interpretation of the definition of “generator” is accurate for purposes of local siting

approval. Section 39(h) states that the standard definition in Section 3.205 of the Act applies for

purposes of that subsection, unless an exemption is met. The exemption that Petitioner tries to

claim is the following: “unless (1) the hazardous waste is treated…prior to disposal, in which

case the last person who treats…the hazardous waste prior to disposal is the generator.” Section

39(h). IEPA has already conceded that PDC accurately meets this exemption for purposes of

waste stream authorization. However, the fact that this description is stated here as an

exemption

to the standard definition found in Section 3.205 of the Act means that this description is

not

otherwise a part of that original definition of “generator.” To argue that this description is

already contained within the Section 3.205 definition of “generator” would render the exemption

in Section 39(h) meaningless. In this situation, the exemption proves the rule. Therefore, the

fact that PDC meets the Section 39(h)

exemption

to the definition of “generator” in Section 3.205

means that it does not otherwise meet that standard definition for other purposes under the Act,

including local siting approval.

Petitioner claims that “there is no valid distinction to be made under the law” between the

possible definitions of “generator” found in the Act (Petitioner’s Brief at 19), and further that

“[t]here is no contextual indication…that the legislature intended ‘generate’ to mean anything

different in Section 39(h) of the Act than it does in Section 3.330(a)(3)” (Petitioner’s Brief at

All of the “permits” referenced on pages 22-23 of Petitioner’s Brief are wastestream authorizations from 1989.

Electronic Filing: Received, Clerk's Office, November 28, 2007

20). This claim is patently false. It is the statute itself that clearly provides the distinction.

Rather than attempting to “administratively rewrite the statute,” and to “write a new definition

into the Act” as claimed by Petitioner (Petitioner’s Brief at 14 and 28), IEPA merely advocates

the precise interpretation and application of the actual language contained in the Act, as opposed

to the glossing over of defined terms that Petitioner attempts in its brief.

THE RCRA DEFINITION OF A “GENERATOR” IS IRRELEVANT TO LOCAL SITING

Similarly, the definition of “generator” in the Resource Conservation and Recovery Act

(“RCRA”), as adopted by the Board in 35 Ill. Adm. Code 720.110, is distinct from the definition

in the Environmental Protection Act, and therefore completely irrelevant to the Act’s

requirement for local siting approval. Contrary to Petitioner’s contentions, IEPA is not arguing

that the RCRA definition is “subservient or subject to the IEPA’s definitions” (Petitioner’s brief

at 21). Rather, IEPA asserts that RCRA and the local siting requirement are separately enacted

laws, with separate policy concerns. Divergent statutory definitions of the identical word,

“generator,” need not be seen as inconsistent, when each definition meets the purpose of the law

for which it was promulgated.

RCRA was designed as a cradle-to-grave system to monitor and control hazardous waste.

The more people that qualify as “generators,” the more people are subject to regulation, and the

more consistent the management of hazardous waste would be across the country. Therefore, a

broad reading of the term “generator” in RCRA is appropriate to its goal of directing the life and

death of hazardous waste.

The siting requirement was enacted to give local communities input on the location of

waste management facilities, both hazardous and non-hazardous. Section 39.2 provides several

criteria that local governments must consider, including the needs of the area, traffic patterns,

Electronic Filing: Received, Clerk's Office, November 28, 2007

and consistency with local waste management plans. The aforementioned are all strictly local

concerns, and while valid, are of no interest to the policies underlying the RCRA program.

Section 3.205 defines a “generator” as “any person whose act or process produces waste”

RCRA has a broader definition, which includes not only the previously quoted language, but

additionally any person “whose act first causes a hazardous waste to become subject to

regulation.” 35 Ill. Adm. Code 720.110. Moreover, other activities can make a non-generator

subject to the RCRA generator requirements, such as when an owner or operator initiates a

shipment of hazardous waste from a treatment, storage, or disposal facility. 35 Ill. Adm. Code

722.110(h). Therefore, it is logically possible for a person to be a “generator” or subject to the

generator requirements of RCRA, without necessarily meeting the definition of a “generator” in

the Act. Whether PDC is a “generator” for purposes of RCRA, or simply needs to meet the

RCRA generator requirements for annual reports, manifesting, locator logs, Land Disposal

Restriction notifications or other items, is not material in this case. Nothing regarding PDC’s

potential generator status under RCRA is determinative for purposes of local siting approval.

The siting law was enacted by the General Assembly to protect local interests, with the definition

of “generator” in Section 3.205 already in place. Attempting to intrude upon that goal by

inserting definitions from federal laws with dissimilar policy concerns would thwart the intent of

the legislature.

RIOR PERMIT DECISIONS AND CASELAW DO NOT MANDATE THE RELIEF REQUESTED

The 1993 Northwestern Steel and Wire Company (“NSW”) permit, referenced in the

permit application in this case, is a good example of the proper application of the Section

3.330(a)(3) exemption from the definition of a pollution control facility. NSW was primarily

engaged in the business of producing steel, as its name suggests. As a natural consequence of

Electronic Filing: Received, Clerk's Office, November 28, 2007

this manufacturing operation, it produced hazardous and non-hazardous wastes. This was waste

that was being created, treated, and then disposed of on site. Transcript, p. 33. Looking at the

criteria in Section 39.2, it is easy to see why the legislature chose to exempt this activity from the

local siting review process. This waste was already being produced at the site, so the local

concerns regarding public health and environmental contact with the wastes would likely be

similar whether the material remained on site or was later moved elsewhere. Issues such as

traffic patterns and the waste management needs of the area would likely weigh in favor of on-

site disposal over off-site transport. Zoning requirements would apply to the manufacturing

facility itself. Therefore, the need for additional local approval seems lessened in such a case. In

contrast, PDC is taking in hazardous waste from generators across the State and beyond, and

bringing those wastes to Peoria County for treatment and/or disposal. The local concern over

these activities would clearly be increased over the maintenance of waste materials on the site

where they were originally created.

From the information available in the record on appeal, the 1990 Envirite situation would

appear to be much more similar to that now faced by Petitioner. Unfortunately, because there is

not a full record of the permit decision in that case, it is difficult to understand all of the

considerations that went into that decision. However, a few important points can be noted. As

demonstrated by testimony, the Envirite decision was consistent with other contemporary

decisions, all of which occurred over 15 years ago. Transcript, p. 35. Since that time, IEPA’s

interpretation has evolved to refocus consideration on the concerns of the local community.

Id.

A decision made by IEPA in 1990, while certainly instructive, is not an inexorable command on

all future decision-making. The language of the statute may not have changed significantly, but

that fact does not stipulate that there is only one possible interpretation of that language. IEPA

Electronic Filing: Received, Clerk's Office, November 28, 2007

maintains that its current interpretation is more consistent with the defined terms of the statute,

as well as the intent of the legislature in enacting the local siting law.

It is clear from the information in our record regarding the Envirite decision that there

was some vacillation within IEPA on whether local siting approval would be required before the

final decision was made. R1313-1316. One thing conspicuously absent from the record is any

evidence of local opposition to or support for the Envirite application. This lack of written

comment could mean various things, but it gives the impression that communities also have

evolved in their interest for local control over the location of waste management facilities. In the

present case, dozens of concerned citizens attended the hearing, and fifteen of them gave

comments in support of the IEPA decision to require siting in this case. It is clear that local

residents in 2007 are interested in exercising the right to local siting review given to them by the

General Assembly many years ago.

The other cases cited by Petitioner in its brief are not on point in this case. In

Northern

Trust Co. v. County of Lake

, 288 Ill. Dec 701 (2d Dist. 2004), the appellate court was affirming

the dismissal of a zoning question. The entire analysis by the court of this issue is contained in

the first quoted paragraph on page 29 of Petitioner’s Brief. Due to the complete lack of

constructive evaluation of the matter, this case is particularly unhelpful in determining an

appropriate interpretation of the law. The case of

City of Chicago v. Environmental Defense

Fund

, 511 U.S. 328 (1994), involved the RCRA definition of “generator” and the exemptions

therefrom, which as stated above, are not relevant in this case.

CONCLUSION

Petitioner seeks to redefine itself as a generator to avoid the proven failure of its attempts

at obtaining local siting approval. But treatment does not a generator make. If it did, the logical

Electronic Filing: Received, Clerk's Office, November 28, 2007

conclusion of the argument would be that

any

disposal facility that takes in waste would only

need to provide some treatment in order to be considered a “generator” under the Act. Any

landfill in the State could take all the waste it receives, mix it with some of its own material, and

be exempt from local siting approval for all waste in the landfill. This would easily lead to a

market in “waste laundering,” where generators could rid themselves of the stigma of hazardous

waste generation, or non-hazardous disposal facilities could even avoid permitting altogether

under Section 21(d)(1) of the Act. This system would certainly be cheaper and less onerous for

some parties, but it would be a disaster for the human health and the environment, and

completely inconsistent with the purposes of the Act.

WHEREFORE, for the foregoing reasons, Respondent, Illinois Environmental Protection

Agency, respectfully requests that the Board DENY the petition for review in this case and

uphold IEPA’s determination that local siting approval is required for this application.

Respectfully Submitted,

DATED: November 28, 2007

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Electronic Filing: Received, Clerk's Office, November 28, 2007

PROOF OF SERVICE

I hereby certify that I did on the 28

day of November, 2007, send by U.S. Mail with postage

thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the

following instrument(s) entitled POST-HEARING BRIEF OF RESPONDENT

To:

Brian Meginnes

Janaki Nair

Elias, Meginnes, Riffle & Seghetti, P.C.

416 Main Street, Suite 1400

Peoria, Illinois 61602-1611

Claire Manning

Brown, Hay & Stephens, LLP

205 S. Fifth Street, Suite 700

Springfield, Illinois 62701

and an electronic copy of the same foregoing instrument on the same date via electronic filing

To: John Therriault, Acting Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

THIS FILING SUBMITTED ON RECYCLED PAPER

Electronic Filing: Received, Clerk's Office, November 28, 2007