ILLINOIS POLLUTION CONTROL BOARD
December 15,
1983
BROWNING-FERRIS
INDUSTRIES, INC.
OF IOWA,
Petitioner,
PCB 83—85
and
v.
)
PCB 83—88
through
ILLINOIS ENVIRONMENTAL
)
PCB 83-96
PROTECTION A(~ENCY~
Respondent.
MR. STEWART
R. WINSTEIN AND MS. DOROTHEA O~DEAN,WINSTEIN,
KAVENSKY, WALLACE
AND
DOUGHTY, APPEARED FOR PETITIONER;
MR. DONALD
L. GIMBEL, ATTORNEY AT
LAW, APPEARED FOR RESPONDEi~.
OPINION AND ORDER OF THE BOARD
(by D. Anderson):
This matter comes before the Board upon several petitions
for review of permit denials filed by Browning-Ferris Indus-
tries,
Inc., of Iowa
(BFI).
The appeals are of denials by
the Illinois Environmental Protection Agency
(Agency)
of
applications
for supplemental wastestream permits for disposal
of special waste at a sanitary landfill owned by BFI at
13606 Knoxville Road in Rock Island County.
The appeals
were consolidated by the Board by Orders entered July
26 and
August
18,
1983.
The following summarizes the cases:
PCB
83-85
Vacuum filter cake from the City of Moline, South
Slope Plant,
No.
830639,
application filed March
30,
1983, denied June
13,
1983, appeal filed July 12,
1983.
83—88
Salt cakes from Nichols Homeshield, No.
830942,
application filed June
2, 1983, denied June
16,
1983,
appeal filed July 18,
1983.
83-89
Honing, shot-sand and spent welding from SARRI-
ENM-T, No.
830665,
application filed April
4,
1983,
denied June 16,
1983, appeal filed July 18,
1983.
83-90
Oily filter material from Aluminum Company of
America, No.
830889, application filed May 18,
1983, denied June
16,
1983, appeal filed July 18,
1983.
83—91
Parts tumbling process sludge from Extrusion
Sciences Corp., No.
830690, application filed
55-233
—2—
PCB
April
11, 1983, denied June
16,
1983, appeal filed
July 18,
1983.
83—92
Flyash from John Deere Harvester Works, No. 8229~~
application to transfer filed March
21,
1983,
denied June
20,
1983, appeal filed July
19,
1983.
83-93
Wastewater treatment sludge from Village of Milan,
No.
822958,
application to transfer filed March 21,
1983, denied June
20,
1983, appeal filed July 19,
1983.
83-94
Foundry waste,
blast sand and dust
from
Rock
Island Arsenal,
No.
830667,
application filed
April
3,
1983,
denied June
20,
1983, appeal filed
July 19,
1983.
83-95
Vacuum filter cake from City of Moline, North
Slope Plant, No.
830640, application filed March 30,
1983,
denied June
20,
1983, appeal filed July 19,
1983.
83-96
Baghouse waste from Rock Island Arsenal, No.
830666,
application filed April
4,
1983, denied June
20.
1983,
appeal filed July
19,
1983.
The Agency filed the records
Ofl
August
4 and
5,
1983,
together with a motion for leave
to file instanter, which is
granted.
A public hearing was held on September 19, 1983 at
Rock Island.
A landfill development permit was issued to Mr. James
Kiesow
(Kiesow)
and Mr. Melvin Mohr
(Mohr)
in August,
1981.
An operating permit was
issued to them on February 9,
1983.
That same month they signed a letter of intent to sell the
landfill to BFI,
and requested transfer
of
the permits.
Two
supplemental wastestream permits were issued on February 25
and March
8,
On the latter date the landfill was sold to
BFI, and a transfer of the supplemental permits was requested.
The operating and development permits were transferred,
and
eight new supplemental wastestream applications were filed.
In May,
1983 the Agency concluded that issuance of the two
wastestream permits to Kiesow and Mohr had been wrong since
they were the first special wastes approved for the facility,
making
it a
‘Tnew regional pollution control facility”,
requiring local government site location suitability approval
(local government approval) (Sections
3 and 39.2 of the
Environmental Protection Act (Act)).
The Agency then denied
the requests to transfer the two permits,
and denied all
new
applications.
The following is a more conplete chror~o1ogy:
5-234
—3—
Landfill
development application received
frcm
Kiesow
(Ex.
1).
Development permit denied
(Ex.
8).
Application refiled
(Ex.
9).
Cut-off date for “new regional pollution
control facilities”.
Development permit issued to Kiesow
and
Mohr
(Ex.
12).
Kiesow
and
Mohr offer to sell landfill
to SF!
(R. 68).
Effective date of S39.2 of the
Act,
requiring local government approval of
“new regional pollution control facilities”
Letter of intent to sell landfill to SF!
signed
(Ex.
39)
Negotiations on sale of landfill broken
off
(R.
26)
Applications for special wastestream
permits Nos.
822958
and
822959
(Ex.
14A
and
145).
Negotiations on sale of landfill resume
CR.
26)
Operating permit issued to Kiesow and
Mohr
(Ex.
16)
Letter of intent to sell landfill to SF!
signed
(Ex.
40).
Request
for
transfer
of
operating
permit
(Ex.
17).
Special wastestream
permit
No.
82295ti
for
vacuum filter sludge from the Village of
Milan issued to Kiesow
and
.Mohr
(Ex.
18).
Special wastestream permit No. 822959
for flyash from the John Deere
Harvester
Works issued to Kiesow and Mohr
(Ex.
19).
Landfill sold to SF!
CEx.
42).
March 5, 1981
June
3,
1981
June
23,
1981
July
1,
1981
August
28,
1981
November,
1981
November
18,
1981
April
28,
1982
July,
1982
December
23,
1982
January,
February
February
February
February
1983
9,
1983
18,
1983
24,
1983
25,
1983
March
8, 1983
March
8,
1983
55-235
March 16,
1983
Request mailed for transfer of special
wastestream permits No.
822958 and
822959
(Ex,
20)
March 21,
1983
Request
received
by
Agency.
March 24,
1983
Operating permit transferred to BFI
(Em.
2:L)
March
30,
1983
Special wastestrean
app.Lricatior1s
for
vacune filter cake
Nos
.
830839
and
930640
(Ex,22A and 225)
April
4,
1983
SpecIal wastestream appi.ications:
for
honing,
shot
sand
and
spent.
welding,
No,
830665;
baghouse
waste,
No.
830666;
arid
foundry
waste
,
blast
sand
a.nd
dust
No.
830667;
(Em.
23A~c)
April
11, 1983
Special
wastestream
application
for
parts
tumbling
sludge,
No.
830690
(Em.
24)
May
18,
1983
Special
wastestream
amplication
for
oily
filter
material,
No,,
830889
(Em,
27)
May
24,
1983
internal
Agency memorandum
concluding
that
the
site
is
a
new
regional
pollu—
tion
control
facili.ty~ sub
)
ecu to local
si±ing:
requirements
(Em.
45)
June
2,
1983
Special
wastestream
application
for
salt
cakes,
No,
830942
(Em,
29)
June
13,
1983
Supplemental
~vastestream
murmir
Nc.
830639
denied
(Em.
30)
June 16,
1983
Development
permit
198 l~52~DEtransferred
to BF1
(Em,
31)
Suppier.E;ntal
wast.estro.am
permits
Nos
830942
830665,
833889
and
830690
denied
(Ex.,
32A-D),
June 20,
1983
Transfer
of
sup~iementai
wastestream
permits
Nos.
822958
and
822959
for
Milan
vacuum
filter
sludge
and
Deere
flyash,
issued to Kiesow and
Mohr
on
February 25
and March
8,
1983, denied to BFI
(Ex,
33).
June
20,
1983
Other supplemental wastestream permits
(Nos.830640,
830666 and 830667)
denied
(Ex,
34A-C),
55~236
—5--
Section 39(c)
of
the Act provides
that the
Agency may
not grant permits
to “new
regional pollution control facili~les”
without local government
siting
approval
under Section
39,2-
“New regional pollution control
facilities~ is defined in
Section
3:
1)
a
regional
pollution
control
facility
initially
permitted for development
or
construction after
July
1,
1981;
or,
2)
the area of
emp~.nsiori h~ynndth~hcmnd~ry
nF
~
currently
permitted
regional
pollution control
facility; or
3)
a permitted regional
pollution control facility
requesting approvaJ. to store,
disoose
of, transfer
or incinerate,
for the
first
time, any special or
hazardous waste,
Section 39(c) was added effective
November
18,
1981,
but was retroactive
to July
1,
1981 with respect
to
facilities
initially permitted for development or construction.
No
retroactive date was
specified for requests
for
approval
to
dispose of, for the first
time, any special waste.
The development permit was issued on August
28, 1981,
during the gap between
July 1,
1981, when the
local
siting
approval process became
effective
for
newly
oermnitted sites,
and November
18, i98l,
when
the
~aw
was
signea,
There is no
indication of any local
approval
of
the
development permit.
The Agency apparently
issued and
transferred
the operating
permit without raising this issue,
The Board has
previously
addressed the retroactive
application
of
the
local
siting
approval process,
determining
that
the Agency could not issue
permits without such approval
during
the gap
(John
Prior v.
IEPA,
PCB 81—165,
44
PCB
189,
and ZYX Dixon Corp.
V.
IEPA,
PCB
8 1-167,
44 PCB
191).
The
Board
will not address the
statutory arguments of the parties in
detail,
finding some
of them to be misfocused.
The Board
finds
that
the Agency
denial of supplemental
permit was
correct
as
the record does
not indicate that an SB 172
local
approval process
had at
any time occurred.
The
Board also agrees
with the
Agency
that its issuance of
special wastestream permits to Kiesow
and Mohr was in error.
BFI’s central
argument is
that
the Agency issued the
first two supplemental permits
to Kiesow and Mohr,
that
BFI
relied on this issuance,
in good
faith to its detriment,
and
that the Agency is therefore equitably estopped from denying
the transfers of the supplemental permits and issuance of
LI
~
L~
,
~
L~
LLL.
~Iit
LUJL
LI.
.LL1~
Oi
e~.jui
Lcti.i~e
55-237
—6--
estoppel were set forth as follows in
Willowbrook Develo2ment
Corporation v.
Illinois Pollution Control Board,
92
Ill,
App.
3d 1074,
48 Ill.
Dec.
354,
416 N.E.
2d 385
(1981)
1.
Words or conduct by the party against whom the
estoppel is alleged constituting either a misrepre-
sentation or concealment of material facts.
2,
Knowledge on the part of the party against whom
the estoppel
is alleged that representations made
were untrue~
3.
The party claiming the benefit of an estoppel must
have not known the representations to be false
either at
the time they were made or at the time
they were acted upon.
4.
The party
estopped must either intend or expect
that his conduct or representations will be acted
upon by the
party asserting the estoppel.
5.
The party seeking the benefit of
the
estoppel must
have relied or acted upon the representations;
and,
6.
The party claiming the benefit of the estoppel
must be
in a position of prejudice if the party
agair.st, whom the estoppel
is
allogod
IS
permltted
to
deny the truth of
the
representations made,
Application of estoppel in this case
would
serve to
deny the public the right
to a hearing before local government
before the first special waste is accepted.
Estoppel will
not be applied where it would defeat the operation of a
policy adopted to protect the public Tn-County
Landfill
Company v.
IPCB,
41
Ill. App.
3d 249,~353N.E~~T~161976).
90—day Rule
BFI mailed the request
to
transfer on
March 16,
1983;
the Agency received it on March 21
(R.
60,
Em.
20).
Section
39(a)
of the Act provides that:
“If there is no final action by the Agency within
90 days after the filing of the application for permit,
the applicant may deem the permit issued;,,,”
The 90 days starts with the
“filing
of
the application”,
which occurred on March
21.
The ninetieth
day was Sunday,
June 19,
1983.
As provided by
35
Ill, Adm. Code 101.105 and
Ill.
Rev.
Stat.
1981,
ch.
1,
par.
1012,
the following
Monday,
June 20, was within the 90-day period.
This was the day on
which the Agency took its “final action” on the
transfer
requests.
55-238
BFI argues
that
the
90
days
should
be
presumed
to
have
started with March
18,
two
days
after
the
date
of
mailing
of
the request to transfer,
The
Act
specifies
the
date
of
“filing”.
The Agency
has
established
through
testimony
concerning
its
routine
practices
that
this
happened
on
March 21.
The Board concludes
that
the
Agency
was
correct
in
refusing to
transfer
supplemental
wastestream
permits
Nos.
822958
and 822959,
and
therefore
will
affirm
the
Agency
in
PCB
83-
92
and
PCB
83--93,
The
Agency
was
also
correct
in
denying
supplemental
wastestream
permits
Nos,
830639,
830640,
030665,
830666,
830667,
830690,
830889
and
830942,
and
the
Board
will
therefore
also
affirm
the
Agency
in
PCB
83—85,
PCB
83-
95, PCB 83--89,
PCB 83—96, PCB 83—94, PCB 83—91, PCB 83—90
and
PCB 83--88.
This
Opinion constitutes
the Board’s findings of fact
and
conclusions
of law in this matter,
1.
The Illinois
Environmental Protection
Agency’s
June 13,
1983
denial of supplemental
wastestrea
permit No.
830639
is affirmed.
2.
The Illinois Environmental Protection Agency’s
June 16,
1983 denial of supplemental wastestream
permit Nos,
830665,
830690,
830889 and 830942
is
affirmed.
3.
The I1.linois Environmental Protection Agency’s
June 20,
1983 denial of Browning-Ferris Indus--
tries,
Inc. of Iowa’s request to transfer supple--
mental wastestream permits Nos,
822958 and 822959
is
affirmed;
and
4.
The Illinois Environmental Protection Agency’s
June 20,
1983 denial of supplemental wastestream
permit Nos.
830640,
830666 and 830667
is affirmed,
IT IS SO
ORDERED.
Board
Members
J. Dumelle and 3,T. Meyer concurred.
55-239
—8—
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and
Order were adopted on the
/~
~
day of
~
1983
by
a vote of
I-
fZ~7
/,
1~?#/-
-
.~‘—
~
~
~
—
Christan L. Moffett, Clerk
Illinois Pollution Control ~‘oard
55-240