ILLINOIS POLLUTION CONTROL BOARD
February 16, 1995
WILMER BROCKNAN,
JR. and FIRST
)
MIDWEST BANK/ILLINOIS, AS
)
TRUSTEE UNDER TRUST NO.
757,
)
Petitioners,
v.
)
PCB 94—207
(Permit Appeal Land)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
FRED PRILLANAN AND PATRICK D.
SHAW,
OF MOHAN, ALEWELT, PRILLAMAN
& ADANI,
APPEARED ON BEHALF OF THE PETITIONERS;
JOHN KIM APPEARED ON BEHALF OF RESPONDENT;
OPINION AND ORDER OF THE BOARD
(by G.
T.
Girard):
On August 2,
1994, Wilmer Brockman,
Jr.,
and First Midwest
Bank of Joliet as Trustee under Trust No.
757
(Brockinan or
petitioners)
filed a petition for review and reversal of the
denial by the Illinois Environmental Protection Agency
(Agency)
of Brocknian’s permit application for a supplemental permit
containing a closure, post—closure care plan,
and cost estimates
including a request for temporary suspension of waste acceptance
at Brockman’s site
in LaSalie County,
Illinois.
Hearing was held
on October 12,
1994,
in Ottawa,
LaSaile County,
Illinois, with
members of the public in attendance.
On October 27,
1994, the petitioners’
brief was filed.
Respondent’s brief was flied on November 14,
1994,
accompanied ~y
a motion to file the brief instanter which the Board hereby
grants.
Brocknian filed petitioners’
reply brief on November 18,
1994.
The Board’s responsibility in this matter arises from
Section 40 of the Environmental Protection Act
(Act).
415
ILCS
5/40
(1992).
The Board
is charged, by the Act, with a broad
range of adjudicatory duties.
Among these
is adjudication of
contested decisions made pursuant to the permit process.
More
generally,
the Board’s functions are based on the series of
checks and balances integral to Illinois’ environmental system:
the Board has responsibility for rulemaking and principal
adjudicatory functions,
while the Agency
is responsible for
carrying out the principal administrative duties,
inspections,
and permitting.
2
Based on review of the record, the Board affirms the
Agency’s denial of a permit to temporarily suspend waste
acceptance for Brockman’s site
in LaSalle County,
Illinois.
BACKGROUND
The subject property is located west of the Village of
Naplate, LaSalle County,
Illinois.
The site is referred to as
the Brocknian II Landfill by petitioners
(Pet.
at
1)’ or as
Brockman II, Pioneer Processing, or the Carus Disposal Area by
the respondent.
(Res.
Br. at 2.)
For the purposes of this
permit denial review, the Board will refer to the subject
property as the “Brockman site” or “site”.
The Brockman site consists of approximately 177 acres owned
by First Midwest Bank of Joliet, Trust No.
757.
(Pet.
at 2.)
Brockman was originally granted development permit number 1975-
23-DE by the Agency on March 14,
1975, to develop a solid waste
disposal site on the 177 acres.
(St. R.
Vol.
I at 133.)
Several
modifications to this development permit were allowed by the
Agency.
The most litigated of these modifications was granted on
December 22,
1980,
to Pioneer Development Company by supplemental
permit number 1980—1944
DE.
(St. R. Vol.
III at 527.)
In the
ensuing litigation contesting that modification, the permit was
declared void by the Illinois Supreme Court
in Pioneer
Processing,
Inc.
et al.
v. IEPA 102 Ill.2d 119,
464 N.E.2d 238
(1984).
A reapplication was withdrawn on March 22,
1988, and
that withdrawal was confirmed by the Board by its order
of April
27,
1989,
in PCB 88—158.
(St. R. Vol.
I at 211—231.) The
Brockman site only accepted special waste from the Carus Chemical
Company pursuant to operating permit number 75-2-OP issued July
9,
1976
(St. R. Vol.
I at 152-153)and supplemental permit number
76—686 issued November 29,
1976
(St. R.
Vol.
II at 154),
and
other supplemental permits.
Waste was accepted only from 1975 to
1982 from Carus.
(St.
R. at 46—47 and 127.)
PRELIMINARY MATTERS
The Agency record prepared for this proceeding will be
cited as “R. Vol.
at
_“;
the Agency record prepared for the
proceeding in PCB 93-162 which was incorporated by stipulation
will be cited as “St.
R. Vol.
—
at
“;
the petition for review
of permit denial will be cited
as “Pet.
at
_“;
petitioners’
brief will be cited as “Pet.
Br. at
“;
petitioners’ reply brief
will be cited as “Pet. R.
Br. at
_“;
respondent’s brief will be
cited as “Res.
Br. at
_“;
the hearing transcript will be cited
as “Tr.
at
“.
The Board’s previous case Brockman v. IEPA will
be cited as “P93—162 at
“.
Petitioners’s motion for order,
order and memorandum of law in support of motion for order will
be cited as “Memo at
“.
3
Before going to the merits of the case, the Board will
address two outstanding motions in this matter.
First,
on
October 12,
1994, the petitioners filed
a motion to supplement
the record.
A response by the Agency to the motion was received
by the Board on October 18 and a motion to file a reply was filed
on October 17 by the petitioners.
At hearing, petitioners
indicated that the petitioners would propose that the motion be
taken with the case.
(Tr. at 6.)
The Board notes that the procedural rules allow a reply to
be filed to a motion only as permitted by the Board or hearing
officer “to prevent material prejudice”.
(35 Ill.
Adni.
Code
101.241(c).)
The Board finds that a reply is not necessary to
prevent material prejudice and the motion to file the reply is
denied.
The Board will also deny the motion to supplement the
record.
An examination of the record indicates that the LPC-PA15
form at issue is included in the record
(See St.
R. Vol.
I at
174—175).
The two pages offered as Joint Exhibit
18 appear to be
a compilation of the data already included in the LPC-PA15 form.
Therefore, the Board will deny the motion to supplement as the
information being offered is already included
in the record.
~
Brockman
V.
IEPA,
PCB 93-162
(January
6,
1994).)
The second motion was filed by petitioners on December 23,
1994,
and is titled “Motion for Order, Order and Memorandum of
Law in Support of Motion for Order”.
On December 30,
1994,
the
Board received a response filed by the Agency.
For the reasons
discussed below, the motion for order
is denied.
Petitioners assert that the Board has failed to take final
action within the statutorily-prescribed decision time frame.
The basis for this assertion is that petitioners have waived the
decision deadline only until December 16,
1994.
Petitioners
acknowledge that a waiver was filed on August
9,
1994, waiving
the decision deadline date until February 16,
1995.
However,
petitioners argue that the August
9,
1994, waiver was “withdrawn
by the Board and by the petitioners”.
(Memo at 2.)
The Agency argues that the August
9,
1994, waiver
is in full
force and effect and cites to the Board’s opinion in Land and
Lakes CompanY,
et al.
v. Village of Romeoville, PCB 91-7
(April
25,
1991) to support its position.
The Agency maintains that the
Board’s September
1,
1994,
order in this proceeding did not
constitute
a “withdrawal” of the August 9,
1994, waiver.
Further,
the Agency argues that even if the Board were to
determine that the Board failed to issue its final decision by
the applicable deadline, the proper relief would not be to deem
the permit issued.
Rather, the relief would be to find that the
application for permit as filed with the Agency was complete and
to remand the case to the Agency for technical review.
4
The Agency has correctly cited the Board’s previous
decisions regarding the waiver of a decision deadline.
Although
appended to a motion, the August
9,
1994 waiver
is unconditional
by its terms.
A waiver may not be contingent or conditional and
a waiver may not be withdrawn.
(See 35 Ill. Adm. Code 101.1052
also see, Natural Gas Pipeline Company of America v.
IEPA,
PCB
87-150 (September 8,
1988)
and Commonwealth Edison Company v.
IEPA, PCB 91-70
(May
6,
1991).)
Therefore,
the motion for order
is denied.
REGULATORY
FRAMEWORK
A
Petition for review of a permit denial
is authorized by
Section 40(a)(l)
of the Act 415
ILCS 5/40
(a)(1)) and 35 Ill.
Adm. Code Section 105.102(a).
The Board has long held that in
permit appeals the burden of proof rests with the petitioners.
The petitioners bear the burden of proving that the application,
as submitted to the Agency, would not violate the Act or the
Board’s regulations.
This standard of review was enunciated
in
Browning-Ferris Industries of Illinois,
Inc.
v. Pollution Control
Board,
179
Ill.
App.
3d 598,
534 N.E.
2d 616,
(Second District
1989)
and reiterated
in John Sexton Contractors Company
v.
Illinois
(Sextoni, PCB 88-139, February 23,
1989.
In Sexton the
Board held:
that the sole question before the Board
is whether the
applicant proves that the application,
as submitted to the
Agency, demonstrated that no violations of the Environmental
Protection Act would have occurred if the requested permit
had been issued.
Therefore, petitioners must establish to the Board that the
permit would not violate the Act or the Board’s rules
if the
requested permit were to be issued by the Agency.
In addition,
2
Section 101.105 of the Board’s rules provides:
A waiver of a deadline for final Board action,
as
specified in Sections 3B,
40,
40.1 and 41 of the Act,
shall be filed as
a separate document.
The waiver
shall be clearly titled as such,
identify the
proceeding by name and docket number, and be signed by
the party or by his authorized representative or
attorney.
The waiver shall be an open waiver or a
waiver until a calendar date certain.
However, the
Board reserves the right to accept waivers in other
forms where
it finds
it necessary to prevent undue
delay or material prejudice.
A contingent waiver is
not acceptable.
5
the Agency’s written response to the permit application frames
the issues on appeal from that decision.
(Pulitzer Community
Newspapers,
Inc.
v.
Illinois Environmental Protection Agency, PCB
90—142, at
6
(December 20,
1990); Centralia Environmental
Services,
Inc.
v.
Illinois Environmental Protection Agency,
PCB
89—170, at
6
(May 10,
1990);
City of Metropolis v. Illinois
Environmental Protection Agency, PCB 90-8 (February 22,
1990).
The Agency’s denial of the permit application was based on
the insufficiency of the Nay 31,
1994,
application for a
supplemental permit containing a closure, post—closure care plan,
and cost estimates,
including a request for temporary suspension
of waste acceptance at the Brocknian site.
(R.
Vol.
II at 365-
418.)
The language of
35
Ill.
Adin. Code 807.205(f)
provides the
Agency with the authority to deem applications incomplete if they
lack the information, documents, and authorizations required by
Board rules and Agency procedures.
The Agency determined that
the application was insufficient because the “Agency records for
the Brockman #2 facility indicate that this facility is closed
pursuant to Ill.
Adm. Code 807.318(c)”.
(R.
Vol.
I at
15.)
DISCUSSION
Brockman asserts that to maintain its status as an “existing
landfill”,
Brocknian was required to apply for a temporary
suspension of waste acceptance permit pursuant to Section 39(c)
of the Act.
(Pet.
Br.
10-11.)
Section 39(c)
provides:
After the effective date of this amendatory Act of 1993,
if
a solid waste disposal facility, any portion for which an
operating permit has been issued by the Agency, has not
accepted waste disposal for
5 or more consecutive calendars
years,
before that facility may accept any new or additional
waste for disposal, the owner and operator must obtain a new
operating permit under this Act for that facility unless the
owner and operator have applied to the Agency for a permit
authorizing the temporary suspension of waste acceptance.
The Agency may not issue a new operation permit under this
Act for the facility unless the applicant has submitted
proof to the Agency that the location of the facility has
been approved or re—approved by the appropriate county board
or municipal governing body under Section 39.2 of this Act
after the facility ceased accepting waste.
Brockinan applied to the Agency for a permit to temporarily
suspend waste acceptance as a supplemental permit for the
Brockman site in 1993.
The Agency denied the permit and upon
appeal to the Board the denial was affirmed.
(Brockman v.
IEPA,
PCB 93-162
(January
6,
1994);
Wilxner Brockman. Jr. and First
Midwest Bank of Joliet v. IEPA and IPCB,
No.
3-94-0175
(3rd
Dist.).)
The Board determined that a temporary suspension of
waste acceptance permit could be evaluated only in the context of
6
a closure plan.
Brockman reapplied for a temporary suspension of
waste acceptance permit and included a closure plan.
That
application is the subject of the instant appeal.
Brockman asserts that it is an existing landfill based on a
development permit issued in 1975 known as Permit No. 1975-23-DE
(R. Vol.
I at 20-21) and a supplement to that permit issued in
1978 known as Permit No. 78-2180.
(R.
Vol.
I at 24—25.)
Brockman argues that petitioners are seeking this permit to
temporarily suspend waste acceptance as a supplemental permit to
the development permit.
(Pet.
Br. at 21.)
“The only
prerequisite to a permit to temporarily suspend waste acceptance
aside from a closure plan is an existing permit to be modified.”
(Pet. Br. at 21.)
Petitioners maintain that “Development Permit
No. 1975—23—DE” and “Supplemental Permit No. 78-2180” have not
been revoked or rescinded and since No. 1975—23—DE “is
a
development permit,
it does not become invalid by operation of a
regulation once the site is completed or closed”.
(Pet.
Br. at
21.)
Brockman concedes that the only operating permits issued
were for the “Carus Disposal Area” which was closed in 1982.
(Pet.
Br. at 4-6.)
An experimental permit was issued to Amoco
for a disposal area on the 177 acre site, but it was never
utilized.
Pioneer ultimately withdrew its application for
operation on the 177 acre site.
(Pet.
Br.
at 4-6.)
The Board
is not persuaded by Brockman’s argument.
The
plain reading of Section 39(c)
of the Act requires that an
operating permit must be in place before a temporary suspension
of waste acceptance may be issued.
Although the language of the
statute refers to a site “any portion for which an operating
permit has been issued”,
the Act continues on to state that an
operator must “obtain a ii~operating permit” (emphasis added)
unless the owner or operator has applied for a temporary
suspension of waste acceptance.
Thus, the Illinois General
Assembly clearly intended that an operating permit would be in
effect before a temporary suspension of waste permit would be
issued.
Further, to read Section 39(c)
any differently leads to
absurd results.
For example,
if
a facility is not permitted to
accept waste,
issuance of a permit to suspend waste acceptance is
absurd.
A development permit does not allow acceptance of waste.
Therefore,
a permit for suspension of waste acceptance can only
be issued if a valid operating permit is in place.
As regards the entire 177 acre Brockman site only one
operating permit was issued.
That permit was for the Carus
Disposal Area which is now closed.
(St. R. Vol.
I at 169.)
Further,
one of the express conditions of supplemental Permit
Number 78—2180 states that “tjhis
supplemental permit is for
modification of development only.
No wastes shall be accepted or
disposed until such time as an operation permit is issued by the
7
Agency.”
(R.Vol.
I at 24.)
Therefore, the petitioners do not
currently hold an operating permit for the Brocknian site or in
any other permit which would arguably allow the acceptance of
waste.
The Board need not examine the other arguments put forth by
the parties as to whether or not the site was “closed”
in 1982.
The Act, although “grandfathering” some facilities,
clearly does
not anticipate allowing a facility which does not have a valid
operating permit to “continue” accepting waste without receipt of
siting approval pursuant to Section 39.2 of the Act.
Therefore,
the issuance of a permit to temporarily suspend waste acceptance
for a facility without
a valid operating permit would violate
Section 39(c)
of the Act.
The Board finds that the Agency
properly denied the application on the basis that the site was
“closed” as the only operating permit issued was for an area of
the site which was closed.
This opinion constitutes the Board findings
of
facts and
conclusion of law.
ORDER
The denial by the Illinois Environmental Protection Agency
of a request by Wilmer Brockman Jr. and First Midwest
Bank/Illinois as trustee under trust No.
757 for a supplemental
permit containing a closure, post—closure care plan,
and cost
estimates including a request for temporary suspension of waste
acceptance at the site in LaSalle County, Illinois is affirmed.
IT IS SO ORDERED.
Chairman Claire A. Manning and Board Member Narili McFawn
concur.
Section 41 of the Environmental Protection Act
(415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision.
The Rules of the Supreme Court
of Illinois establish filing requirements.
(But see also,
35
Ill.
Adin.
Code 101.246, Motions for Reconsideration.)
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cer~4~ythat the above opinion and order was
adopted on the
/&~~
day of
~2~A~4~.’.tl_
,
1995,
by a
vote of
7_i)
A.
Dorothy M./7~unn,Clerk
Illinois F~llutionControl Board