ILLINOIS POLLUTION CONTROL BOARD
    March 26,
    1992
    STAUNTON LANDFILL,
    INC.,
    )
    )
    Petitioner,
    )
    PCB 91-95
    )
    (Permit Appeal)
    vs.
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    FRED
    C.
    PRILLAMAN,
    MOHAN,
    ALEWELT
    &
    PRILLAMAN,
    APPEARED ON
    BEHALF
    OF
    PETITIONER.
    TODD RETTIG,
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, APPEARED
    ON BEHALF OF RESPONDENT.
    OPINION
    AND
    ORDER OF THE BOARD
    (by R.
    C.
    Flemal):
    On June 14,
    1991,
    Staunton Landfill,
    Inc.
    (Staunton)
    filed a
    petition for review pursuant to Section 40 of the Environmental
    Protection Act (Act).
    (Ill. Rev.
    Stat.
    1991,
    ch.
    11l~i,par.
    1040.)
    Staunton seeks t~eviewof an Illinois Environmental
    Protection Agency
    (Agency)
    denial of its application for permit
    transfer and modification for a non—hazardous waste landfill.
    A hearing was held in this matter on December 5,
    1991,
    in
    Carlinville, Illinois.
    No members of the public attended.
    The
    parties presented no evidence at this hearing, save for the
    entering of a supplement to the Agency record as an exhibit.
    The
    supplement was later filed with the Board on December 16,
    1991.
    At hearing, the parties elected to stand on their briefs for
    determination of this case.
    A briefing schedule was set by the
    hearing officer.
    Staunton failed to file its brief.
    The Agency
    submitted its brief according to the schedule.
    FACTS
    The facility is a sanitary landfill located in Staunton,
    Macoupin County, Illinois, permitted to accept non-hazardous
    wastes and operating under permit No. 1974—58-OP
    9.
    The site was
    initially permitted for development in 1974.
    In 1981, the
    original permit was transferred to Charles Westoff.
    On February
    19,
    1991, Staunton submitted to the Agency a permit application
    131—471
    2
    to transfer ownership and operations1, and to modify the
    development and operation of the site.
    (Agency Br.
    at 1-2;
    Pet.
    at 1-2; Rec.
    at 0000302.)
    On May 10, 1991,
    the Agency denied
    the application for permit transfer and modification.
    Staunton
    brought this appeal of the Agency’s determination.
    Staunton.
    requests that the Board require the Agency to grant the permit or
    require the Agency to perform further technical review of the
    application.
    Framework section was deleted as it is not needed for the
    decision rendered.
    DISCUSSION
    At the onset, the Board finds that there are elements of
    this case that are substantially similar to another case recently
    decided by the Board, D
    & B Refuse Service v. IEPA (October 24,
    1991),
    PCB 89-106.
    The Board in that case,
    among other matters,
    addressed the problem presented when a petitioner ma
    permit
    appeal does not present evidence at hearing or file a brief on
    its behalf.
    The Board stated at page 4:
    Because the Board’s review in a permit appeal is
    limited to whether the Agency correctly determined that
    the application package as submitted by the applicant
    demonstrates compliance, we do not agree with the
    Agency’s contention that the failure to present
    evidence at hearing and file a post-hearing brief
    constitutes
    a failure to meet the applicant’s burden of
    proof.2
    However,
    “the
    Board
    is not simply a
    depository in which the
    applicant
    may dump the burden
    of argument and research.”
    (Williams v.
    Danley Lumber
    ~
    472 N.E.2d 586, 587
    (2d Dist.
    1984).)
    The
    appellate court has stated that “an
    appellant may not
    make a point merely by statingit without presenting
    arguments in support of it” such that the court may
    deem waived any issue which has not been adequately
    presented to the court.
    (In re Application of
    Anderson,
    516 N.E.2d 860, 863
    (2d Dist.
    1987).)
    The
    court has also refused to consider arguments where
    appellant’s brief fails to reference those portions of
    the record supporting reversal.
    (Mielke v. Condell
    Memorial Hospital,
    463 N.E.2d 216
    (2d Dist.
    1984).)
    Although the Board rejects the Agency’s contention that
    D
    & B has failed to meet its burden, an applicant who
    The application was received by the Agency on February 22,
    1991.
    2
    Citations are as follows:
    Agency Brief as Ag. Br.
    at XXX;
    Staunton’s petition for review as Pet.
    at XXX; and Agency Record
    as Rec.
    at XXX.
    13 1—472
    3
    does not participate at hearing and fails to file
    a
    post—hearing brief risks waiver of arguments in its
    appeal to the Board.
    2
    Particularly where, as here, the applicant has
    presented a minimal argument in its petition for
    review.
    The Board applies this analysis to the case before it,
    and
    proceeds with its discussion of the issues.
    It is well established that the Agency’s denial statement
    frames the issues on review before the Board.
    (Ill. Rev.
    Stat.
    1991, ch 111½,
    par. 1039(a); Centralia Environmental Services v.
    IEPA (October 25,
    1990), PCB 90—189,
    115 PCB 389,
    396.)
    “In a
    permit appeal review before the Board,
    the burden of proof is on
    the applicant to demonstrate that the reasons for denial detailed
    by the Agency in its 39(a) denial statement are inadequate to
    support a finding that permit issuance will cause a violation of
    the Act or regulations.”
    ~
    citing,
    Technical Services Co.,
    v. IEPA (November 5,
    1981),
    PCB 81—105,
    44 PCB 41,
    42.)
    Denial Reason 4~l
    The first denial reason given by the Agency states that two
    modifications sought by Staunton place the facility within the
    definition of a new regional pollution control facility (new
    RPCF).
    The modifications are:
    (1) to expand vertically to 639
    MSL from 628 MSL,
    11 feet over permitted boundaries
    (Rec.
    at
    000111); and
    (2) to accept special waste for the first time
    (Rec.
    at 000048—53;
    Pet.
    at 2).
    According to section 39(c)
    of the Act,
    the Agency may not grant a permit for a new RPCF unless the
    applicant provides proof to the Agency that local siting approval
    has been obtained from a county or municipality where the
    facility
    is located through the process provided in section
    39.2~.
    It is undisputed that the site, with the proposed
    modifications, has never received local siting approval.
    Staunton denies that the modifications meet the definition
    of new RPCF without presenting any facts in support of its claim.
    (Pet. at 3.)
    This type of assertion without supporting argument
    constitutes waiver of the issue.
    Even if it does not,
    it
    is
    clear that the proposed expansion and the proposed acceptance of
    special waste for the first time constitute a new RPCF and
    therefore require local siting approval.
    Vertical expansion has been found to create a new RPCF,
    and,
    therefore,
    to require local siting approval.
    (M.I.G. Investments
    ~ Such proceeding is commonly referred to as an SB 172
    proceeding.
    131—473
    4
    v. IEPA (1988), 523 N.E.
    2d 1,
    119 Ill.
    Dec.
    533.)
    The
    modification to accept special waste where none has been
    previously permitted,
    and vertical expansion also meet the
    definition of new RPCF found at Section 3.32(b)
    of the Act:
    A new
    RPCF
    is:
    ***
    2.
    the area of expansion beyond the boundary of
    a currently permitted regional pollution
    control facility; or
    3.
    a permitted regional pollution control
    facility requesting approval to store,
    dispose of, transfer or incinerate,
    for the
    first time,
    any special or hazardous waste.
    The application proposes modifications that fall within the
    definition of
    a new RPCF, .and the applicant did not submit proof
    of local siting approval pursuant to Section 39.2 of the Act to
    the Agency.
    Therefore the Agency is correct, and the Board so
    finds, that Section 39(c)
    of the Act precludes the Agency from
    granting the permit.
    In the same manner, the Board is precluded
    from ordering the Agency to grant the permit even if Staunton
    were to prevail on the merits as regards the other reasons given
    by the Agency for denial.
    Absent proof by Staunton that it has
    received siting approval,
    the application is fundamentally
    deficient,
    and must be denied as a matter of law.
    The Board’s finding on Denial Reason #1 is dispositive of
    this case.
    We note that,
    even if Staunton were to receive siting
    approval and file a new permit application with the Agency,
    neither Staunton nor the Agency, respectively, are bound by the
    content of, or action on, this permit application.
    We also alert Staunton that the Board’s new landfill
    regulations became effective on September 18,
    1990.
    (See In the
    Matter of:
    Development, Operating and Reporting Requirements for
    Non-Hazardous Waste Landfills, R88—7, August 17,
    1990.)
    Those
    regulations provide that only an existing landfill that begins
    closure within two years of the effective date of the
    regulations,
    i.e. by September 18,
    1992,
    falls under the
    provisions of Part 807, the provisions referenced as applicable
    in this case.
    If Staunton intends to stay open beyond the
    September 18, 1992 deadline, Staunton must comply with more
    stringent Part 811 requirements referenced in the “transition”
    provisions of Part 814 of the Board’s new landfill regulations.
    (Land and Lakes Company v. IEPA, January 23,
    1992, PCB 91-215).
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    131—474
    5
    ORDER
    For the foregoing reasons, the Board affirms the denial of
    Staunton Landfill, Inc.’s permit application by the Illinois
    Environmental Protection Agency.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act,
    Ill. Rev.
    St.at.
    1991 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.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution
    Control Board, hereby c4~~ifythat the above opinion and order
    was adopted on the ~
    ~day
    of _______________________
    1992, by a vote of
    7-c
    Ill
    Control
    Board
    131—475

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