ILLINOIS POLLUTION CONTROL BOARD
April 11, 1991
ESG WATTS, INC.,
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PCB 90-144
PROTECTION AGENCY,
)
(Permit Appeal)
)
Respondent,
)
and
PEOPLE OF THE STATE
)
OF ILLINOIS,
)
Intervenors.
KEVIN
T.
NcCLAIN,
of
IMMEL,
ZELLE,
OGREN,
NcCLAIN,
&
COSTELLO,
APPEARED ON BEHALF OF PETITIONER;
MARK V. GURNIK APPEARED ON BEHALF OF RESPONDENT; and
KELLY
A. O’CONNOR, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF INTERVENORS.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board on a permit appeal filed by
petitioner ESG Watts,
Inc.
(Watts)
on August 1,
1990.
Watts asks
this
Board
to
review
respondent
the
Illinois
Environmental
Protection Agency’s
(Agency) June 29, 1990 decision denying Watts’
application for a RCRA Part B permit for its proposed industrial
waste treatment facility in Rock Island,
Illinois.
A RCRA permit
is required by Section
21(f)
of the Environmental Protection Act
(Act)
(Ill.Rev.Stat.1989,
ch.
ill
1/2,
par.
1021(f))
and
35
Ill.Adm.Code
703.121.
At
hearing
on
December
10,
1990,
the
Attorney General moved to intervene on behalf of the People of the
State of Illinois.
The hearing officer granted that motion,
over
Watts’
objection,
on December
31,
1990.
All three parties filed
briefs.
For
the
reasons
stated
below,
the Board
affirms
the
Agency’s denial of the requested permit.
Background
This appeal is the continuation of a long history of dispute
121—29
2
and
litigation
over
Watts’
proposed
industrial
waste
treatment
complex
(complex
or
facility).
Watts
seeks
to
construct
and
operate this facility at 602 First Street in Rock Island, Illinois.
The proposed
facility would
store
and treat
hazardous
wastes,
handling only water—based or
aqueous waste.
The facility would
have eight treatment and receiving tanks and five tanks for storage
of product chemicals, treated water,
and waste oil for recycling.
The complex is designed to treat and discharge 100,000 gallons of
wastewater per day, with a daily maximum of 120,000 gallons.
(P.
at 30_38.)1
The City
of Rock Island originally denied site approval for
the facility.
On appeal, this Board found that the City’s decision
was against
the manifest weight
of
the evidence,
and therefore
reversed the denial.
(Watts Trucking v. City of Rock Island, PCB
83-167
(March 8,
1984).)
The appellate court affirmed the Board’s
decision (Braet v. Pollution Control Board, Nos.
3-84—0193 and
3-
84-0221
(unpublished decision, August 23, 1985)), and the Supreme
Court
of
Illinois subsequently
denied
appellant’s
petition
for
leave to appeal.
(No. 62414, denied December 4, 1985.)
Therefore,
the site of the facility was approved and Watts proceeded to apply
for construction and operation permits.
On February
10,
1987,
Watts submitted its application for a
RCRA
Part
B
permit
for
the
construction
and
operation
of
the
proposed
facility.
The
application
indicated
that the
treated
wastewater
was
to
be
discharged
into
the
City’s
storm
sewer,
eventually
being
discharged
into
the Mississippi
River
under
a
NPDES permit.2
(R. at 38-39.)
The Agency sent Watts three notices
of
deficiency
(March
9,
1987,
August
26,
1987,
and
February
8,
1988),
and Watts responded to those notices.
On August 12,
1988,
the Agency
issued
a draft RCRA permit,
tentatively deciding
to
issue the permit.
(R.
at
323—324.)
The Agency held
a public
hearing
on
the draft
permit on December
13,
1988.
(R.
at
586-
788.)
On November
1,
1988, Watts’ consulting engineer informed the
Agency that Watts had changed the proposed routing of the treated
1
“P.”
denotes the Agency’s record,
filed with the Board
on
August 21,
1990.
2 Watts applied for an NPDES permit for the proposed facility
on
February
11,
1987.
That permit was denied by the Agency on
March
30,
1990.
Watts appealed that decision to this Board,
and
the Board today decided that appeal in a separate proceeding.
(PCB
90—95)
121—30
3
wastewater.3
The engineer indicated that the original method
of
disposal
(into the City’s storm sewer) was impossible because the
storm sewer
system is directly tied to the City’s sanitary sewer
system.
Therefore, Watts proposed to route the discharge directly
to the Mississippi through construction of a private pipeline.
(R.
at 467.)
This method would require an easement from the City to
extend the pipeline under a city street.
Watts notified the City
of
the change
in plans
on November
3,
1988.
(R.
at
468.)
On
September
6,
1989,
the Agency asked Watts whether
it wished to
continue pursuing the RCRA Part B permit, and
if
so,
how it was
planning to dispose of the treated wastewater.
(R. at 513.)
After
obtaining two extensions
of time to answer the Agency’s inquiry,
on December 29,
1989 Watts replied that it had been “dragging its
feet” but that it wished to pursue the Part B permit.
Watts stated
that it hoped to be issued a permit “that would allow us to truck
the water from the facility or use direct discharge,
leaving both
options open to us.”
(R. at 517.)
On
February
9,
1990,
the Agency
formally
asked
Watts
to
provide information
on the
final
disposition
of the wastewater
generated by the treatment facility.
(P. at 519.)
Watts supplied
written responses on March
9 and March 30,
1990.
Watts explained
its difficulties in making arrangements for the disposal
of the
wastewater.
Watts had not yet been able to obtain an easement from
the City, nor had
it been able to arrange for the use of a point
along the Mississippi to which the wastewater.could be trucked.
On
March
29,
1990,
Watts
formally
petitioned
the
City
for
an
easement.
That request was denied by the City.
(Pet.
Br. at 4.)
On June 29,
1990,
the Agency denied the requested Part B permit.
(P.
at 1037-1041.)
The denial stated:
The permit
is denied because the application has been
deemed
to
be
incomplete,
on
the
grounds
that
the
applicant has not demonstrated there
is
an acceptable
means to dispose of the treatment plant wastewater.
The
disposition
of the treated wastewater has significant
potential to cause environmental damage
if disposed of
improperly
and
is
an
integral
part
of
being
able to
provide
a
service
as
a
hazardous
waste
treatment
facility.
The Agency does not feel that issuance of
a
permit without a feasible discharge point is protective
of the environment.
Without a feasible discharge point,
the facility operations could result in the indefinite
storage of wastes at the site if the company was unable
to resolve its problem.
(P.
at 1041.)
The November 1, 1988 letter states that Watts had indicated
during an October
4,
1988 meeting with the Agency that the route
of disposal had changed.
12 1—31
4
The Agency cited 35 Ill.Adm.Code 705.123
in support of its denial
on
grounds
of
failure to correct the deficiency.
That section
reads in part:
If an applicant fails or refuses to correct deficiencies
in the application, the permit may either be denied or
issued
on
the
basis
of
information
available
to
the
Agency...
The Agency stated in its denial letter that it had concluded that
the missing information “is of such vital importance to the permit
decision
that
issuance
of
a
Part
B permit
with
a
compliance
schedule or some
other mechanism for obtaining information would
not
be
feasible.”
(R.
at
1038.)
Watts filed
its petition for
review of the Agency’s decision with the Board on August
1,
1990.
Issue Presented
When reviewing a permit decision made by the Agency, the issue
before the Board
is whether the permit application,
as submitted
to
the Agency,
demonstrates that the issuance
of the requested
permit
will
not
violate
the
Act
or
the
Board’s
regulations.
(Joliet Sand
& Gravel v. Illinois Pollution Control Board
(3d Dist.
1987),
163
Ill.App.3d
830,
516 N.E.2d
955,
958.)
In
order
to
reverse a permit denial, the petitioner must demonstrate that its
permit application met that standard:
that no violation of the Act
or Board regulations will occur
if the permit is granted.
(Waste
Management,
Inc.
v.
Illinois Environmental Protection Agency,
PCB
84—45,84—61,
and 84—68
(Cons.)
(November 26, 1984); aff’d sub
noin.
Illinois Environmental Protection Agency v. Pollution Control Board
(3d Dist.
1985),
138 Ill.App.3d
550,
486 N.E.2d
293,
93 Ill.Dec.
192, aff’d 115 Ill.2d 65, 503 N.E.2d 343, 104 Ill.Dec. 786 (1986).)
Thus,
in this case Watts must demonstrate that the grant
of
the
permit
without
a
specific
method
of
disposal
of
the
treated
wastewater will not violate the Act or rules.
Discussion
Watts raises several arguments in support of its position that
the RCRA Part B permit
should be
issued.
First,
Watts contends
that
the
Agency
is
estopped
from
asserting
that
the
permit
application
is
incomplete.
Watts
maintains
that
the
Agency’s
February
9,
1990 letter requesting
information on the method
of
disposal
did
not
state
that
the
information was
necessary
to
correct a deficiency,
although several earlier deficiency letters
had been issued to Watts.
Watts also states that the Agency had
previously determined
that the application was .complete,
before
deciding to issue the 1988 draft permit.
Therefore, Watts asserts
that the Agency
is estopped from contending that the application
is incomplete when it had already determined,
at an earlier time,
that the application was
complete.
Watts also contends that the
121—32
5
Agency waived
its
right
to
determine that
the application
was
incomplete when it failed to raise that point “on a timely basis”
prior to the issuance of the denial.
In response,
the Agency points out that although the Agency
did at one time determine that the application was complete, that
early determination was made well before Watts informed the Agency
that it was having difficulties securing a discharge point for the
treated wastewater.
The Attorney General also argues that Watts’
claim
of estoppel
is
inappropriate.
The Attorney General notes
that the application was found incomplete only after Watts changed
its application
to
omit
the specific
point
of
discharge.
The
Attorney
General
maintains
that
the
Agency
did
not
make
any
misrepresentations or conceal any material
fact,
and that Watts
could not reasonably rely on the Agency’s early determination of
completeness after Watts modified the application, since Watts knew
of that modification.
Therefore, the Attorney General argues that
Watts cannot avail itself of the doctrine of estoppel because none
of the necessary elements
of estoppel are present
in this
case.
(See City of Mendota v. Pollution Control Board
(3d Dist.
1987),
16 Ill.App.3d 203,
514 N.E.2d 218,
222.)
The Board agrees with the Agency and the Attorney General that
the doctrine of estoppel is not applicable to this case.
Although
the Agency
did,
at one time,
determine that the application was
complete, the Board believes that the Agency was not bound by that
determination after Watts modified its application to reflect the
uncertainty of the method of discharge.
The method of discharge
of treated wastewater is certainly not a minor modification. This
is especially true where, as here, the application was changed to
show uncertainty, rather than simply reflecting a definite change
in the disposal method.
After such a change,
the Agency
is free
to
find
that
it does
not
have
enough
information
to
make
an
informed decision on the permit.
Additionally,
as the Attorney
General
points
out,
the
necessary elements
of
estoppel
are not
present in this situation.
Watts
does not even allege that the
Agency made any misrepresentations or concealed any material fact.
The Board finds that the Agency
is not estopped from determining
that Watts’
application was incomplete.4
Second, Watts contends that the Agency’s denial of its permit
is
not well-founded.
Watts
maintains
that the Agency
did
not
The
Board
notes
that
Watts
implies
that
the
Agency’s
February
9,
1990
letter
formally requesting
information on
the
method
of discharge did not rise to the
level
of
a
deficiency
letter.
Although it might have been better practice for the Agency
to
issue
a
formal deficiency
letter,
as
it had previously,
the
Board finds that the text of the letter should have put Watts on
notice that the Agency felt that more information on the discharge
method was essential to its determination.
121—33
6
produce any evidence to show that the facility,
if the permit was
granted, would create environmental harm or “be in violation of any
statute
or regulation promulgated by the Agency.”
(Pet.
Br.
at
12.)
Watts
argues that the RCRA Part B permit application was
submitted
for
the
purpose
of
constructing
a
hazardous
waste
facility, not
for the purpose of disposing of hazardous or
non-
hazardous waste.
Watts
further alleges that it
is “uncontested”
that the construction and operation of the facility would conform
to
federal
and
state
guidelines
for
RCRA
operation
and
construction.
Watts contends that the City of Rock Island’s denial
of its petition for easement merely delayed the planned method of
discharge,
and that the problems with the City
should have
no
bearing on the
RCRA
Part B permit.
Finally, Watts maintains that
the Agency should not deny a permit because .the proposed method of
disposal
is
subject to
a local
zoning ordinance.
In support of
this last claim,
Watts cites County of Lake v. Pollution Control
Board
(2d Dist.
1983)
,
120 Ill.App.3d 88,
457 N.E.2d 1309,
1316,
and Carlson
v. Village of Worth
(1975),
62 Ill.2d 402,
343 N.E.2d
493.
The
Agency
contends
that,
contrary
to
Watts’
claims,
the
Agency must be concerned with Watts’
ability to dispose of
the
wastewater.
The Agency states that the wastewater
is regulated
under
the
RCRA
program
until
it
is
discharged,
when the NPDES
program
takes
control.
35
Ill.Adm.Code
721.104(a) (2)
and
corresponding
Board
note.
The
Agency
notes
that the
proposed
facility
will
have
one
20,000
gallon tank
for
the
storage
of
treated wastewater,
but that the facility
is expected to have an
average daily
flow of
100,000
gallons.
Thus,
the Agency argues
that
if
the
facility were to
begin
operation without
means
for
wastewater disposal, the facility would almost immediately become
an
indefinite storage facility and would be
in violation of
its
permit.
The Agency notes that there may be alternative methods for
wastewater disposal, but points out that Watts never gave it (the
Agency)
any specific or concrete information on Watts’
ability to
pursue those alternatives.5
The Agency also contends that this
permit
appeal does not involve the propriety
or
impropriety of
struggles between the facility and the local government.
Finally,
The Agency also points out that even if Watts can obtain the
easement
for construction of
its pipeline or
obtain the use
of
discharge point to which the wastewater
could
be trucked,
those
discharge points would have to have their own
RCRA
Part B permit.
This is because the wastewater would still be regulated under PCRA
and the discharge point would be accepting hazardous waste
for
disposal.
35 Ill.Adm.Code 703.122(b).
In its reply brief,
Watts
challenges the citation to this section, stating-that the section
refers to owners
or operators
of publicly owned treatment works
(POTW) and thus does not apply to Watts.
The Board points out to
Watts
that
only
a
portion
of
Section
703.122(b)
is
limited
to
POTWs.
12 1—34
7
the
Agency
maintains
that
this
case
does
not
involve
the
application of a local zoning ordinance, because an easement is not
a zoning ordinance.
After reviewing the arguments presented by Watts, the Agency,
and
the
Attorney
General,
the
Board
concludes
that
Watts’
application did not demonstrate that the grant
of the requested
permit,
without
a
specific method of discharge
for the treated
wastewater, would not violate the Act or the rules.
The Agency is
correct in its belief that the method of discharge of the treated
wastewater
is an integral part of the operation of the proposed
facility.
A hazardous waste remains subject to RCRA regulation
until that waste is discharged pursuant to an NPDES permit.
35
Ill.Adin.Code 72l.104(a)(2).
Without knowing what will happen to
the wastewater between the time that it is treated and when it is
disposed
of,
the Agency
cannot
know
if the wastewater will
be
handled properly.
Therefore,
it
is
impossible for the Agency to
determine whether granting the permit would result in a violation
of the Act or Board regulations.
The Board notes that,
contrary
to Watts’ claim, the Agency need not produce evidence to show that
the facility would cause environmental harm or violate the Act or
Board
(not Agency)
regulations.
That burden is on Watts.
Watts’
contention
that
caselaw
prevents
the
Agency
from
denying
a
permit
because
of
local
zoning
ordinances
is
not
applicable here.
This case involves
a
request for an easement,
which is not a zoning issue.
The issue presented in this case
is
Watts’ failure to identify a discharge point or method of discharge
for the treated wastewater, not whether Watts is able to ultimately
obtain an easement from the City.
Watts’
problems with the City
of Rock Island are not at
issue
in this appeal.
The only
issue
before the Board is whether Watts’ has demonstrated that the grant
of the permit, without an identified disposal method, would violate
the Act or the regulations.
The Board finds that Watts has not
made that showing.
Therefore,
the Agency’s denial of the permit
on grounds of incompleteness is affirmed.
This opinion constitutes
the Board’s
findings
of
fact and
conclusions of law.
ORDER
The Agency’s June 29,
1990 denial of ESG Watts’ RCRA Part
B
permit application for a hazardous waste treatment facility in Rock
Island,
Illinois, on grounds that the application was incomplete,
is affirmed.
IT IS SO ORDERED.
12
1—35
8
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the a)ove 9pinion and Order was adopted
on
the
//~7_~day
of
_______________,
1991,
by
a
vote
of
7-ô.
Dorothy N.4unn,
lérk
Illinois P~,1lutionControl Board•
12 1—36