ILLINOIS POLLUTION CONTROL BOARD
June
22,
1989
SEXTON FILLING
& GRADING
CONTRACTORS CORPORATION,
Petitioner,
v.
)
PCB
88—116
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. FRED C.
PRILLAMAN, ATTORNEY-AT—LAW,
APPEARED ON BEHALF OF
PETITIONER; AND
MR. DONALD
L. GIMBEL, ATTORNEY—AT—LAW,
APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter
is before the Board on
the July
29,
1988
petition of Sexton Filling
&
Grading
Contractors Corp.
(“Sexton’t).
That petition seeks review of
a single condition
imposed by the
Illinois Environmental Protection Agency
(“Agency”)
on the closure and post—closure care permit issued on
June 24,
1988 for Sexton’s Bensenville landfill.
Public hearings
occurred on March
7
and April
5,
1989.
Sexton filed
its post—
hearing brief
on April
26,
1989.
The Agency filed
its response
brief
on May 9,
1989.
Sexton filed
a reply brief on May 16,
1989.
Sexton owns and operates
a
54 acre landfill located
in
DuPage County,
near Bensenville.
A portion of the site was
a
pre—existing “borrow pit” for earth used in the construction of
the Illinois Tollway.
The site was operated intermittently from
1964 as
a landfill, and Sexton obtained
a developmental permit
for landfill operation
in 1973.
Addison Creek flows through
a
relocated channel between
the fill mounds on the
site.
The site
was
a floodplain.
The wastes buried on the site include
vegetative refuse,
slag,
and foundry sand,
but apparently do not
include special, hazardous,
or putrescible household wastes.
Agency Record
at 62—63,
March 20,
1989 Supplement
to Agency
Record.
The permit condition (special condition number
12)
that
Sexton now challenges pertains to groundwater monitoring.
The
text of
this condition reads as follows:
Within
ninety
(90)
days
of
the
date
of
this
permit
(i.e.,
by
September
22,
1988),
the
100—189
—2—
permittee
shall
submit
to
the Permit
Section
information
to
show
that
the
current
groundwater
monitoring
program
adequately
monitors
groundwater
at
the
site,
or
in
the
alternative,
submit
a
revised
groundwater
monitoring plan
in accordance
with
the
draft
“Groundwater Monitoring Network”, enclosed.
Agency Record at 3.
Sexton attacks this condition,
arguing that the Board should
vacate
it on three bases:
1.
The
Agency
improperly
treated
the
submission
of Sexton’s closure and
post—
closure
care
plan
(t~CPC
plan”)
as
a
permit application;
2.
The
challenged
condition
improperly
requires Sexton
to
comply with
the draft
“Groundwater
Monitoring
Network’t
guide-
line
(~GMN guideline”)
as
if
it
were
a
regulation; and
3.
The challenged condition
is not necessary
because
the
~gency
erred
in
determining
that
Sexton
had
not
provided
sufficient
information
to support
its existing plan.
The Agency
initially counters that
it must review CRC plans
as permits.
Second,
the Agency asserts
that
it referenced the
draft GMN guideline
to instruct Sexton
as to
the elements of
a
groundwater monitoring program that the Agency believes
is
adequate
to satisfy the requirements
of the Environmental
Protection Act
(“Act”)
and
Board
rules.
It
also used
the
guideline
to provide internal guidance
to
its permit
reviewers.
Finally,
the Agency highlights deficiencies
in the information
submitted by Sexton that necessitate the challenged
condition.
The Board addresses each issue
in
turn.
CRC Plans
as Permit Applications
In support of
its argument that Agency review of
a CPC plan
is not
a permit
review,
and that submission of
a CRC plan
to the
Agency
is
not
an application
for permit, Sexton asserts
that
submission
of~ a
CRC plan “is an application to modify
the
existing operating permit
....
Therefore,
there
is
no
re~uirernent
t:h~t
the
ap71ic3~tn~
incluTh
the
i.riForn~ion
which
m~yhL oti~r~’ise
be
recjui
red
by
~be
\gcucy
under
SecL
lOll
807.316(a)
from applicants
for developmental permits.”
Sexton
Post—Hearing Brief
at 20.
Sexton asserts
that CRC plans serve
the limited
functions of providing
a basis
for determining
whether
the closing facility
is
an indefinite
storage or waste
disposal
unit and
for estimating
the amount of post—closure cost
100—191)
—3—
assurance necessary.
Sexton maintains that submission of
a CPC
plan does not provide an opportunity for
the Agency to review the
adequacy of
a site’s groundwater monitoring plan.
The Agency
argues that because they are ultimately permit
conditions,
see,
e.g.,
35
Ill. Adm. Code 807.206(c),
807.501(b)
&
807.523(a),
the Agency must review CPC plans as permits and treat
submission of CPC plans
as applications for supplemental
permits.
The Agency concludes,
“CPC plans which are filed with
the Agency seeking to add,
modify
or delete a permit condition
are of necessity
a permit application.”
Agency Response Brief
at
11.
Sexton’s arguments to the effect that the Agency cannot
review an aspect of site management vital
to environmentally
sound closure and post—closure care are unpersuasive.
The Board
cannot accept
the proposition that the Agency must passively
allow
a violation of
the Act or “file
an enforcement action”
(Sexton Post—Hearing Brief at 21—22)
in order
to obtain sound
facility closure and post-closure care.
The Board, when recently
confronted with essentially
the same arguments
in another
landfill CPC permit
appeal,
stated:
The
Board
does
not construe
its
solid
waste
closure
and post—closure
rules,
35
Ill.
Adm.
Code
807.500—807.666,
as
creating
a
sweeping
mandate
to
rewrite
all
provisions
of
older
solid waste permits.
However,
the closure and
post—closure
care plan submitted
to the Agency
is
a
permit
application,
and
the
Agency
is
free
to
review
that
application
and
impose
permit conditions
in
the usual manner
so
long
as those conditions relate only to closure and
post—closure care.
*
*
*
*
On
its
face,
Section 807.503(a),
in requiring
a
closure
plan,
characterizes
such
a plan
as
“a
condition
of
the
site
permit.”
Id.
(emphasis added).
Identical language
is found
in Rule 807.523(a)
regarding post—closure care
plans.
Only
the
Agency
has
authorization
under
the
Act
to
create,
modify,
or
delete
a
permit
condition.
Those
documents
which
are
filed with
the
Agency
seeking
to
add,
modify,
or
delete
a
permit
condition
are,
of
neces-
sity,
a permit application.
Section
807.503
(d)
requires
that,
“The
closure
plan
shall
be
included
in
the
permit
application pursuant
to
Section 807.205.”
In
addition,
Section
807.504
defines
the
sub-
mission
of
any modification
of
a closure plan
100—191
—4—
as
a
“permit
application.”
The
regulatory
language
is clear
that
the
initial submission
of
a closure plan,
or
the submission of amend-
ments
to
that
plan,
constitute
a
permit
application.
The permit application which
is submitted must
demonstrate that the facility will not violate
provisions
of
the
Act
or
Board
regulations
relating
to closure
or post—closure
care.
If
the
permit
application
does
not
demonstrate
compliance,
the
Agency
may
deny
the
permit
application
or
it may
impose
conditions which
it
believes
are
necessary
to
ensure
compliance.
In
no
event,
however,
may
the
Agency decision
or
its conditions be
premised
on matters other
than closure and post—closure
care compliance provisions.
*
*
*
*
Also,
contrary
to
Sexton’s
arguments,
the
Board
does
not
believe,
based
on
the
particular
facts of this case,
that the Agency
must
resort
to
filing
an
enforcement
action
against
a
permittee
in
order
to
secure
an
adequate and protective permit.
John
Sexton Contractors
Co.
v.
EPA,
PCB
88—
139,
slip
op.
at
4—5
(Feb.
23,
1989), ~ppea1
docketed, No.
89—1393
(May 26,
1989).
In arguing that CPC plans serve
a
limited purpose,
Sexton
apparently fails
to recognize
that
the Board promulgated the
substantive CPC plan requirements
of R84—22C pursuant to Sections
5,
22, and
27 of
the Act,
while
it simultaneously
imposed the
financial assurance
requirements pursuant
to Section 21.1.
See,
9
Ill.
Reg.
18942,
18943
(Dec.
6,
1985).
Those regulations,
in
addition
to requiring closure and post—closure care financial
assurances,
see
35
Ill.
Adrn.
Code 807. Subpart
F, require closure
and post—closure care in accordance with
a CRC plan approved
by
the Agency and made
a condition
of the site operation permit.
See
35 Ill. Adm. Code 807. Subpart
E.
Any arguments to the
effect that R84—22C merely imposed new financial
requirements
would
be
incorrect.
Further,
any arg,urnent
that the Agency conducted
a plenary
re~’iowof Sexton’s nx~s~:1ncjpermits
an.~imnesed cxtra-requl
~Lor
ce~uiremenLs
are
wholly
misp1ac~d
.
When
SL~xLOfl
f iled ii~ L’~’C
plan
for Agency review
and
incorporation
into
the
operating
permit,
the Agency had authority
to review the extent
to which
that plan “minimizes
the need
for further maintenance” and
“controls, minimizes
or eliminates post—closure release of waste,
waste constituents,
leachate, contaminated
rainfall,
or waste
100—192
—5—
decomposition products to the groundwater
...
to the extent
necessary to prevent threats
to human health or the
environment.”
35
Ill. Adm. Code 807.502.
In the course of
that
review,
the Agency determined that the groundwater
monitoring
information submitted by Sexton was insufficient to determine
that the CPC plan would fulfill this new closure performance
standard.
By special condition
12,
the Agency gave Sexton the
option of either submitting additional
information or submitting
another groundwater monitoring plan
in order
to demonstrate that
it would meet this standard.
The Agency did not assert that the
existing monitoring scheme was
inadequate.
Therefore,
in all
reality,
the
issue whether the Agency can impose new groundwater
monitoring requirements on this existing facility is not before
the Board at
this time.
Even
if this issue were before
the Board,
there
are faults
in Sexton’s position.
At the heart
of Sexton’s argument
is the
contention that imposition of special condition 12 posed
“insurmountable technological and financial difficulties.”
Sexton Post—Hearing Brief
at
21.
Assuming
this special condition
actually imposed some new requirement
(and the Board expressly
finds that
it does not),
this issue
is not appropriately
addressed
in this proceeding.
There
is
rio
authority in the Act
for either
the Agency or
the Board
to determine the technical or
economic impact of
a rule as applied
in the context of
a permit
appeal.
Section
29(b)
of the Act states as
follows:
Action by the Board
in adopting any regulation
for
which
judicial
review
could
have
been
obtained
under
Section
41
judicial
review
provision
of this Act shall not be subject
to
review
regarding
the regulation’s validity
or
application
in any subsequent proceeding
under
Section
40
the
permit
appeal
provision
of this Act.
Section 29(b).
Therefore,
once the Board has adopted
a regulation,
a challenge
that
its application
is technically
infeasible or economically
unreasonable as applied to
a particular facility
is inappropriate
in the context of
a permit appeal.
This does not mean that
Sexton (or any other affected source)
has no procedural mechanism
to have the Board consider any “insurmountable technological or
financial difficulties” Sexton may feel it faces.
Sexton
is
free
to initiate
a general
or site—specific rulemaking pursuant to
Section
27,
or an adjusted standard proceeding pursuant to
Section
28.1
in order
to obtain relief from generally applicable
standards.
If such relief were to be granted by the Board,
the
Agency could
then modify the closure plan as appropriate.
The fact that the Agency could have sought revision of
Sexton’s CRC plan by an enforcement action seeking
to show
a
threatened
release of contaminants
to the groundwater
is simply
100--193
*
6—
irrelevant.
The Board sees no reason why the Agency should be
compelled to
issue
a permit with
a condition it believes would
violate the Act, and then immediately initiate an enforcement
action
to vacate or modify
the very condition it has just issued.
Further,
the Board sees no reason to force
a shift
in the
burden of proof
to the Agency.
In this proceeding, Sexton bears
the burden of proving that no violation
of the Act or Board
regulations would have occurred had the Agency approved
the CPC
plan based on the
information submitted by Sexton and whether
special condition 12 was,
therefore,
unnecessary.
Browning—
Ferris Industries of
Illinois,
Inc.
v.
PCP,
179 Ill. App.
3d
598,
601,
534 N.E.2d
616,
619
(2d Dist.
1989);
EPA
v.
PCB,
118 Ill.
App.
3d 772,
780, 445 N.E.2d
188,
194
(1st Dist.
1983).
The Agency’s supplemental permit review of the groundwater
monitoring aspects of Sexton’s CRC
plan was
a proper exercise of
the Agency’s authority.
The Board will sustain an Agency action
where
the Agency acted properly.
In summary,
the Board concludes
that Sexton has failed
to
show that the Agency acted
improperly when
it imposed special
condition 12
in
the course of
its permit review.
That the entire
CPC plan ultimately becomes
a condition to the site’s operating
permit means that submission of
a CRC plan for Agency review is
tantamount to the filing
of
a supplemental permit application.
This authorizes
the Agency to review those aspects
of site
management
that determine whether
the CRC plan minimizes the need
for further maintenance and prevents
threats to human health and
the environment.
Therefore, whenever
a permittee submits
a CRC
plan
for
review,
the Agency must review all essential elements of
the plan.
The essential elements of
a CRC plan include those
aspects
of site operations directly
related
to site closure and
post—closure care.
The Draft GMN Guideline
As A Regulation
Sexton argues that the reference
to the draft GMN guideline
in special condition
12
is
an invalid assertion of Agency
authority because
the Agency
is utilizing this draft as
a rule.
Sexton further asserts that the Agency did not promulgate the
guideline as
a
rule and has not published
this draft guideline in
the Illinois Register,
the Board’s Environmental Register,
nor by
mass distribution
to permittees.
However,
the Agency makes
it
available and uses
it
to provide guidance to the regulated
community as
to the elements
of an adequate groundwater
monitoring plan.
April
7,
1989 Stipulation.
The Bo~i-d
also
co~ifrouted
this
1SSUO
15
Sexton
v.
~P~:
Special
Condition
17b
includes
the
following
language:
“Propose
a
revised
ground
water
monitoring program,
based on draft Groundwater
Monitoring Network design guidelines.”
Agency
109—194
—7--
Record,
Ex.
31,
par.
l7b.
Sexton
contends
that
the
Agency
thereby
impermissibly
attempted
to
impose
its
draft
guidelines
as
rules
that
it had
not subjected
to notice and
comment
as
required
by
law.
Sexton
Post—
Hearing
Brief
at
28—31;
see
Ill.
Rev.
Stat.
ch.
127, par. 1001—1021
(1988)
(Administrative
Procedure Act, or “APA”).
The Agency concedes
that
it
cannot
impose such draft documents
as
rules,
and responds
that
it does not now seek
to
do
so.
Agency Response at
23.
The Board
finds
no
conflict.
The Agency cannot
impose
draft
guidelines
as
rules.
See APA
at
par.
1005(b).
However,
the
Agency
can
direct
a
perrnittee’s attention to any readily available
source
for
guidance
and
further
elaboration.
In
so
noting,
the
Board
does
not
affirm
or
condone
the
imposition
of
any
non—statutory,
non—regulatory
materials
as
permit
requirements.
Sexton
v. EPA, PCB 88—139, at
15.
The Board
finds no material difference between the “Propose
based on
...“
language involved
in Sexton and the
“submit
...
in
accordance with
...“
language involved here.
Sexton has failed
to convince the Board that
it
should
vacate special condition no.
12 because the Agency has used the
draft GMN guideline
in an impermissible way.
When the Agency
uses non—regulatory guidance documents,
it
could do
so either
to
guide Agency permit reviewers
or to guide members
of the
regulated
community.
“The Agency cannot impose draft guidelines
as rules,” but
it “can direct
a permittee’s attention
to any
readily available source
for guidance and further elaboration.”
Id.
However, the Agency’s use
of non—statutory and non—
regulatory materials must never have the effect of constraining
any exercise of the Agency’s discretion.
Such
a use would
elevate
its effect
to that of
a
rule.
See, McLouth Steel
Products Corp.
v. Thomas,
838 F.2d 1317,
1320
(D.C. Cir.
1988).
A significant
indication that the Agency has made an
impermissible use of
a non—regulatory resource
is that the use
directly affects regulatory compliance.
Adherence
to the
provisions of the resource cannot establish compliance,
and
neglect of
its provisions cannot evidence noncompliance.
McLouth
Steel Products,
838 F.2d at
1320—22.
The use must constitute
what the name of the guideline suggests:
provide non—binding
guidance, whether
internal,
external,
or both.
The Agency can go
no further than using the resource materials for guidance.
The Agency is aware that
it must approve
a groundwater
monitoring scheme that complies with the Act and Board
rules,
even
if
it
does not fulfill
the draft GMN guideline.
As
is
indicated by the testimony of
the Agency permit reviewer:
100—195
—8—
tIf
an
applicant
chooses
to
meet
the
requirements
to
provide
an
adequate
ground
water monitoring program sufficient
to monitor
ground
water
up
gradient
and
down
gradient
from
a
disposal
facility
and
meets
the
requirements
in
the
act
and
regulations
we
still
must
issue
a
permit whether
or
not
the
draft
ground
water
monitoring
network
identified
as Exhibit 12
is adhered
to,
if the
level
of
technical
information
will
allow
an
adequate review
sic
an
issuance of
a permit.
R.
55
(Mar.
7,
1989).
The Board
finds,
as
a matter
of
fact,
that the Agency has
not presently applied
the draft GMN guideline in
a way that gives
it the effect
of
a rule.
Here,
the Agency did not disapprove
Sexton’s monitoring scheme or impose another
based on this
document.
The Agency premised
its decision on the monitoring
plan exclusively on the factual information submitted by
Sexton.
That factual
information included
a purported indication
that there
is fluctuation
in water levels recorded
in the
existing wells
over time
and that Sexton located all three
of its
existing wells
in
a relatively small area of the site.
The
Agency only required Sexton
to submit more information or,
in
the
alternative,
to assemble another scheme.
If
the factual
information submitted by Sexton supports the Agency decision
to
seek more
information,
the condition will prevail on review by
this Board.
If that information does
not support
the Agency
decision to seek more
information,
special condition 12 will
fail,
and the Board will strike
it.
The Board would not endorse
the application of the draft GMN guideline as
a requirement.
Therefore,
there has been no actual application of
the draft
GMN
guideline
for
the
Board
to
review.
The Agency’s use of this
document was only advisory.
In such
a circumstance,
it makes
little difference whether the Agency permit writer reviewed the
draft GMN guideline,
a textbook on
geology,
or
a current
scientific journal.
If
the Board were
to prohibit the Agency’s use
of outside
resources
for guidance
of the regulated community,
it would
effectively curtail the Agency from sharing
its expertise.
It
would increase
the burden of
compliance
for many members of
that
community.
Those members would
then have
less assurance
of what
course
of conduct satisfies
the requirements
of the Act and Board
regulat
i ens,
even
if
th i
is
only
to
clr’termi no
the
7\qency
‘
S
opinion
u; to
Lin~natere
of
thaL coar
SO.
~cial
Condition
12 Is Not Necessary
Sexton asserts
that the Agency did not accurately evaluate
the information
it submitted when
the Agency imposed special
100—196
—9—
condition
12.
More specifically, Sexton maintains that the
information
it submitted to the Agency was sufficient to
demonstrate the direction of groundwater flow,
that its existing
wells were adequate
to gauge the site’s impact on the
groundwater,
and that ponded water
on the site resulted from
accumulations of wood chips, not from waste leachate.
Sexton
Post—Hearing Brief at 25—28.
Sexton highlights expert testimony
to the effect that special condition 12 was not necessary.
Id.
at
28.
The Agency maintains,
“Sexton did not submit sufficient
information
to the Agency.”
Agency Response Brief at
14.
The
Agency highlights
an apparent fluctuation
in groundwater
elevations,
which may indicate
a variation
in flow direction, and
the fact that the existing monitoring wells are closely situated
around one corner of the site.
The Agency asserts that
it could
not determine the groundwater
levels and flows throughout
the
site nor whether the existing wells would detect releases from
the site.
Id.
at
15—16.
Further, the Agency questions whether
the present monitoring scheme adequately measures the background
groundwater quality.
Id.
at 17.
The Board must now determine whether the Agency’s imposition
of special condition 12 was
in error.
EPA
v.
PCB,
118 Ill.
App.
3d
772, 777,
455 N.E.2d 188,
777
(1st Dist.
1983).
First,
the
Board disposes
of
a preliminary issue bearing on this point.
The
sole
question
before
the
Board
in
a
review
of
the Agency’s denial
of
a
permit
is
whether
the
petitioner
can
prove
that
its
permit application
as
submitted
to the
Agency
establishes
that the facility will not cause
a
violation
of
the
Act.
If
the
Agency
has
granted
the
permit with
conditions
to
which
the
petitioner
objects,
the
petitioner
must
prove that the conditions are
not necessary to
accomplish
the
purposes
of
the
Act
and
therefore were
imposed unreasonably.
Id.,
118
Ill.
App.
3d
at
780;
455 N.B.2d
at
194
(citation and emphasis
omitted).
Alternatively stated, Sexton
“had to establish that
its plan
would
not result in any future violation of
the Act and the
modifications,
therefore, were arbitrary and unnecessary.”
Browning—Ferris Industries of Illinois,
Inc.
V.
PCB,
179 Ill.
App.
3d
598,
603, 534 N.E.2d
616,
620
(2d Dist.
1989).
Therefore,
the ultimate issue
in this proceeding
is whether
special condition 12
is “not necessary
to accomplish the purposes
of
the Act.”
EPA v.
PCB,
118
Ill.
App.
3d
at 780, 455 N.E.2d at
194.
In its arguments
that special condition 12
is not necessary,
Sexton highlights certain testimony of
its witness, Mr.
Richard
Eldredge:
100—197
—10—
Q.
And
what
is
your
opinion
as
to
whether
that
condition
(Special
Condition
12)
is
necessary?
A.
I
do
not
believe
that
that condition
is
necessary at this site.
Sexton Post—Hearing Brief
at
25
&
29
(citing
R.
100
(Mar.
7,
1989)).
As noted,
this may be testimony as
to the ultimate issue
in this
proceeding.
The Board,
as
a technically qualified body,
does not
consider opinion testimony on the ultimate issue
of
a proceeding
as controlling.
See Wawryszyn
v.
Illinois Central Railroad Co.,
10
Ill.
App.
2d 394,
403,
135 N.E.2d 154,
158
(1st Dist.
1956);
cf. Greeley
& Hansen
v.
B
& D Robinson Construction,
Inc.
,
114
Ill. App.
3d
720,
730,
449 N.E.2d
250,
257
(2d Dist.
1983);
Arnold
N.
May Builders,
Inc.
v. Brucketta,
60
Ill. App.
3d 926,
930—31,
377 N.E.2d
579,
582—83
(3d Dist.
1978).
This particular
opinion testimony also lacks clarity.
The testimony fails
to
specify for what purpose
the witness deems special condition 12
unnecessary:
unnecessary
to prevent
a future violation of the
Act or Board rules?
(a legal conclusion), unnecessary
to
adequately characterize the groundwater
flow beneath the site?
(a
scientific conclusion), unnecessary
to prompt Sexton
to provide
additional evaluation of the groundwater flows?
(a policy
conclusion),
that the proffered guidance of the draft
GMN
guideline was unnecessary?
(a personal discretionary conclusion),
that the possibility of additional wells
is unnecessary
if Sexton
does
not submit further
information?
(an Agency—discretionary
conclusion that
is not yet before
the Board),
etc.
Such evidence
that
can
lead
to
disparate
conclusions
has
little
probative
value,
see ~y
.~1obilOil Corp.,
157
111.
App.
3d
1069,
1031—
62,
510 N.E.2d
1162,
1170
(1st Dist.
1987);
and
is therefore,
of
questionable
relevance.
Such subjective evidence
is insufficient
to sustain Sexton’s burden
of proof.
See Draper
& Kramer,
Inc.
v.PCB,
40
Ill.
App.
3d 918,
921—22,
353 N.B.2d
106,
109
(1st.
Dist.
1976).
For
the
foregoing reasons,
the Board can give little weight
to Sexton’s conclusory testimony,
or
arguments inextricably
intertwined with this
testimony.
The Board will summarize the
remaining arguments,
then review the facts
that bear
on whether
special condition
12
was necessary.
in
I
s pont—hear ins bri~t
,
Sexton accurateit
la.~J~1.5
~Iit
Agency’s position with regard
to the adequacy of
Sexton’s
existing groundwater monitoring scheme
in the following quotation
of
the Agency permit reviewer,
Ms.
Sallie
A. Springer:
100—193
—11—
Q.
Sallie,
it’s
true,
isn’t
it,
that
you
have no opinion
as
to
whether any groundwater
monitoring
program
different
from
that which
is
in
place
at
this
time
at
the
Sexton
facility
is necessary?
A.
That’s correct.
Sexton Post—Hearing
Brief
at
25
&
29
(quoting
R.
43
(Mar.
7,
1989).
The Agency has only concluded that more information
is
necessary
to demonstrate that the existing system would assure that no
violation would
occur.
The Agency has given Sexton the
alternative option of submitting another
scheme.
The Agency
provided the draft GMN guideline for Sexton’s guidance.
Agency
Record
at
3;
R.
30—31,
36,
53,
60,
70
&
80
(Mar.
7,
1989).
Unless Sexton has proven that the information
it submitted to the
Agency supports
the viability of
its existing system,
the Board
must sustain the special condition that requires further
justification or another
scheme.
The record indicates that this site consists of glacial
tills overlying dolomitic bedrock.
Addison Creek bisects the
site.
The information
in Sexton’s
1973 permit application shows
that, prior
to site development, Addison Creek was
the
topographic low point
of the saturated zone.
Sexton anticipated
the stream to remain
the low point after development.
This
information indicates that there were three primary directions
of
groundwater flow beneath the site.
Groundwater
in the dolomite
bedrock
flowed southwest within the site area.
Groundwater
in
the overlying glacial
till east of the stream flowed southwest
at.
an oblique angle toward the stream,
consistent with the
observation that the stream
is the topographic low point
of the
saturated
zone.
Groundwater
in the glacial
till west of
the
stream flowed southeast,
similarly toward the stream.
This 1973
information further indicates
that the area of the site west of
the stream was
a pre—existing fill of unknown limits, which
Sexton intended to complete.
Sexton performed all
borings on
that portion of
the site east
of the stream, and did not disturb
the western portion.
Sexton Ex.
3.
Sexton has since relocated
the stream on the site,
so that
it now flows directly south
between the east and west fill mounds.
Sexton Ex.
25; Agency
Record
at 40.
The record indicates
that Sexton has three existing
groundwater monitoring wells
on the site.
Well GlOl lies midway
on the southern boundary of the west fill mound, about 250 feet
west
of
the stream and 800 feet east of
the westernmost extent of
the mound.
Well Gl02
lies on
the southern boundary of the
eastern fill mound, about
150 feet east
of the stream and 250
feet from the eastern boundary
of the mound.
Well Gl03
is at the
midpoint
of the eastern boundary of the eastern fill mound, which
is about
1,500 feet long.
Agency Record at 40; Sexton Ex.
5.
100—199
—12—
The Agency primarily premised
its decision
to impose special
condition
12 on two facts:
the groundwater monitoring information
submitted by Sexton may indicate fluctuations
in groundwater
flow
direction,
and the existing groundwater monitoring wells
lie
in
only one corner of the site.
From this information, the Agency
could not ascertain the directions of groundwater flow throughout
the site.
Neither could
it determine whether the existing wells
were upgradient or downgradient of the fill mounds.
Therefore,
the Agency maintains that it could not conclude that the existing
wells would detect a leak of waste constituents from the fill and
preclude a violation of the Act or Board regulations.
Agency
Response Brief
at 15—17;
R.
29—30,
33,
36,
59—61,
69—70
&
80
(Mar.
7,
1989).
The groundwater elevations
indicated
in
the
Agency record
for November
1986 and November 1987,
which
purportedly indicate this possible
fluctuation
in the direction
of groundwater flow,
are as follows:
Well
Nov.
86
Nov.
87
GlOl
652.60
653.42
G102
650.35
652.29
Gl03
653.06
651.38
Agency Record at 51—61.
The core
of Sexton’s explanation of how the
information
it
submitted
to the Agency actually does indicate the direction
of
groundwater flow throughout the site
is embodied
in the following
testimony of Mr. Richard
W.
Eldredge,
Sexton’s contract engineer:
Q.
The information gathered
from the
three
ground
water
monitoring
wells
has
been
furnished
to
the
IERA over
the
last
15
years,
is that correct?
A.
That’s correct.
Q.
And would
you say with
the help
of
that
information
you
can
tell
ground
water
flow
direction,
are
you
referring
to
the
same
information
that
is
on file with the IEPA?
A.
That
is correct.
Q.
And you reviewed that information?
A.
I have reviewed that information,
yes.
Q.
~J~±ng pays
43
of
the
~ysncy
f lie
as
well
as
Exhibit
2A
a
map
of
the
1970
site
contours
and
with
the
help
of
the
ground
water
monitoring
elevations
over
the
last
15
years,
do
you
have
an
opinion
as
to what
the
ground water
flow is
at the subject site?
100—200
—13—
A.
I do.
Q.
What
is that opinion?
A.
The ground
water
flow on
the
site
is
to
the south,
south
east.
Q.
How do you know that?
A..
If
you
examine
the
elevations
of
the
ground
water
elevation
within
the monitoring
wells
and
if
you
examine
the
surficial
ditch
that
goes
through
the
site
and
look
at
the
water
elevations
in
that
ditch,
you
will
see
that the water
in the ditch running across the
site
runs
from
north
to
south
and
that
the
ground
water
as
shown
in the ditch
is closely
related
to
the
surficial
aquifer
which
is
being monitored by the
3 wells.
In
that
manner,
there
is
only
one
direction
that
ground
water
can
flow
and
that’s to the south,
south east.
Q.
Okay.
Do
you have
an
opinion
therefore
whether
the
3
wells
in
question
are
up
gradient or down gradient wells?
A.
3
wells
in
question
are
down
gradient
wells.
Q.
Is
there any question
in your mind about
that?
A.
None.
Q.
Calling
your
attention
to
pages
50
through
61
of
the
Agency
record
which
are
exhibits referred
to by Sallie Springer
in her
testimony,
Sallie
Springer
raised
a question
whether
those
readings
on
elevation
in
the
ground
water
monitoring
wells
for
the
years
1986
and
1987
show
a
fluctuation
...
in
the
ground water flow direction.
Can you explain those readings?
A.
I
think
in any
superficial
ground water
monitoring
regime
as
we
have
here
that
what
shows
up
in
those
wells
will
be
closely
related
to
the
precipitation
events
that
preceded
the measurement.
100—201
—14--
Therefore,
in
order
to
tell what kind
of
a
condition
exists
one would
have
to
look
at
the precipitation events,
the condition of the
ditch
and
whether
the
ditch
was
really
representing
charging
media
or
a
discharging
media at that time.
Q.
Looking at the pages
50 through
61 of the
Agency record, do those pages
in anyway change
your
opinion
that
the
ground
water
flow
at
this site
is
to the south, southeast?
A.
No.
R.
92—95
(Mar.
7,
1989).
Sexton then tendered
its Exhibit
5, which
is
a groundwater
elevation contour map prepared by Mr. Eldredge based on the
averages of
its 1988
groundwater monitoring data.
See R. 95—97
(Mar.
7,
1989);
Sexton Ex.
5.
The Board believes that
the variations
in the 1986 and 1987
groundwater elevations have not been adequately explained by
Sexton.
In 1986, the groundwater elevations
in wells GlOl and
Gl03 were higher
than that in well G102.
This would indeed imply
a flow direction toward
the southeast corner
of the site,
consistent with Sexton’s contention of the nature of the local
groundwater
flow pattern. See Sexton
Ex.
5.
However,
the 1987
data,
wherein well G103 shows the lowest groundwater elevation of
the three, similarly implies
a northeasterly flow direction.
A
northeasterly flow direction is quite contrary to Sexton’s
contention of
the groundwater flow pattern.
It
therefore casts
a
significant doubt on the reality of Sexton’s simple model of
groundwater flow.
While
it is possible
to imagine scenerios
whereby
the
apparent
discrepencies
in
flow
direction
may
be
rationalized,
it
is
neither
the
Board’s
nor
the
Agency’s
obligation
to
do so.
Rather, Sexton,
as the
bearer
of
the
burden
of proof,
must dispel this doubt.
This
it
has not done.
The Board
is further perplexed
by Sexton’s contention,
as
presented
in the testimony of
Mr. Eldredge, that all three of the
current monitoring wells are down gradient wells.
Supra.
The
term “down gradient”
implies
a reference point.
Although the
reference point
is
in
fact not explicitly identified here by
Sexton,
most conventionally the reference point
for
a monitoring
well
is the potential source
of pollution
(i.e.,
the landfill).
Thus,
a well characte~rizedas “down gradient”
is logically
presumed
to
he
located
in
the direction
to~iard
~h
ch
p~llu
Li on
~oul ~ nuve
fro~~
it~
soa~ee
.
Siace
ti
c
1
tIl
n
1~~:n~
.
tue
west of well Gl03,
the further logical conclusion
is that the
groundwater flow at G103
is
from the west toward
the east,
and
thus once more at odds with Sexton’s general model
of ground~ater
flow.
100- 20 2
—15—
Monitoring data from the three existing wells
not only raise
reasonable doubt about the nature of the groundwater flow pattern
in the immediate vicinity of these wells,
it also underscores the
fact that Sexton’s characterization of the groundwater flow
in
other parts of the site
is obviously not adequate.
The three
wells are located
in
a single quarter of the site and leave
approximately three—quarters
of the site’s perimeter
unattended.
It
is perhaps significant that under these
circumstances
not even Sexton’s engineer would extrapolate the
groundwater flow pattern from the three well points throughout
the site area.
See P.
109
& 113
(Mar.
7, 1989);
Sexton Ex.
5.
However,
the critical issue
is that if Sexton’s model is not
demonstrably correct
in that small portion of the site area where
monitoring data are available,
it
is at least equally
questionable
in that large portion where
no data at all are
available.
Sexton has not borne its burden of proving otherwise.
Finally,
the Board would note its reservation regarding
Sexton’s reliance on the existence today of the flow patterns
which may have characterized the site
in 1973.
Sexton has caused
a great deal
of
alteration to the site since 1973,
including
the
obvious change
in the nature of the materials
at the site,
the
relocation of Addison Creek,
and the alterations of site
topography.
Even at sites not so grossly altered,
it
is not
uncommon
to find
far more complex shallow groundwater flow
patterns than here posited by Sexton.
Nevertheless, even if the
flow pattern was simple in 1973,
an affirmative demonstration
that the site alterations have not fundamentally altered that
pattern
is seemingly
in order.
The Board has another
fundamental problem with Sexton’s
explanations.
Initially, Sexton first raised its explanations at
hearing;
there
is no indication that Sexton communicated this
information
to the Agency before the Agency made its decision.
In fact, throughout the course of the hearing, Sexton highlighted
the
fact that
it did not communicate this
to the Agency.
See
R.
37, 81—82
&
101.
Next,
there
is
a similar defect
in the
supplemental information submitted
by Sexton at hearing as
Exhibit
5.
Exhibit
5
is based on all
of Sexton’s
1988 monitoring
information,
and there is
no indication that either Exhibit
5 or
all the data upon which
it
is based were
in the Agency’s
possession before June
24,
1988.
This
is the critical date,
the
date of the Agency’s permit decision.
See Agency Record at
1;
R.
97,
106—07.
The Board must restrict its review
to information in
the Agency’s possession on that date.
See EPA v. PCB,
118 Ill.
App.
3d at 780—81;
455 N.E.2d at
194.
The Board must conclude that Sexton has failed
to show the
Agency was wrong
in concluding
there was uncertainty
in the
directions
of groundwater flow throughout the site.
It was
Sexton’s responsibility
to provide
the information which was
necessary for this Agency determination.
See Browning—Ferris
Industries,
179 Ill. )~pp. 3d
at 607—09;
534 N.B.2d
at 622—24.
On
this basis,
the Board holds that special condition
12, which
100—203
—16—
sought this information, was necessary to accomplish
the purposes
of the Act and assure that no violation of the Act or Board
rules
would occur.
In summary,
the Board holds
that the Agency had authority to
review Sexton’s CpC plan as thought its submission was an
application for
a supplemental permit,
that the Agency did not
impermissibly impose
the draft GMN guideline as though
it were
a
rule,
and that the Agency did not err
in
imposing special
condition
12.
Therefore,
the Board affirms
special condition
12.
This Opinion constitutes
the Board’s findings of
fact and
conclusions
of law
in this matter.
ORDER
The Board hereby affirms the imposition of special condition
12
in the June 24,
1988
closure and post—closure
care permit
issued
by the Illinois Environmental Protection Agency to Sexton
Filling
& Grading Contractors Corp.
Section
41 of the Environmental Protection
Act,
Ill.
Rev.
Stat.
1985,
ch.
111—1/2, 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.
IT
IS SO ORDERED.
Board Member J. Anderson dissented.
I, Dorothy M.
Gunn, Clerk
of the Illinois
Pollution Control
Board,
hereby certify that the above
inion and Order was
adopted
on the
~2”day
of
L.-~L~
,
1989,
by
a
vote of
~‘:~~•
//
~A
I
Dorothy M.//~unn,Clerk
Illinois ~,6l1ution Control Board
100—204
