ILLINOIS POLLUTION CONTROL BOARD
    July 25, 1991
    EARL R. BRADD,
    as owner of
    the BRADD SANITARY LANDFILL,
    )
    Petitioner,
    PCB 90—173
    V.
    )
    (Permit Appeal)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    On June 13,
    1991,
    Earl R. Bradd, as owner of the Bradd
    Sanitary Landfill, filed a motion to reconsider the Board’s May
    9,
    1990 Opinion and Order affirming the Illinois Environmental
    Protection Agency’s
    (“Agency”)
    August 21,
    1990 decision to reject
    Mr. Bradd’s Affidavit of Certification of Closure for the Bradd
    Sanitary Landfill.
    The Agency has not filed a response to the
    motion.
    Mr. Bradd requests the Board to vacate its May 9,
    1991
    Opinion and Order in this matter.
    Specifically, Mr. Bradd
    requests the Board to vacate that portion of the Opinion and
    Order that affirms the Agency’s denial reason
    1, which relates to
    Mr. Bradd’s groundwater monitoring program, and remand the matter
    to the Agency:
    1)
    with directions to conduct an independent
    review of Bradd’s groundwater monitoring plan
    on its merits to determine if it meets Agency
    (sic)
    closure requirements; and
    2)
    to the extent that the Agency believes that
    the plan does not meet Agency
    (sic)
    groundwater monitoring requirements, afford
    Mr. Bradd the opportunity to submit
    additional information and upgrade h~s
    groundwater monitoring closure plan.
    The Board grants the motion to reconsider.
    For the
    following reasons,
    we vacate our previous finding on denial
    reason
    1 and remand this matter to the Agency for the purposes
    11n
    his
    motion,
    Mr.
    Bradd
    refers
    to
    “IEPA”
    or
    “Agency”
    regulations.
    We wish to note,
    however,
    that the regulations at
    issue are Board regulations.
    124—183
    2
    articulated by Mr.
    Bradd above.
    To review,
    on October 14,
    1988, the Agency issued a
    supplemental permit to Mr. Bradd’s developmental and operating
    permits in which it approved Bradd’s closure and post—closure
    plan.
    Condition 15(b) of that permit required Mr. Bradd to
    submit a revised groundwater monitoring plan, via a supplemental
    permit application, within 90 days.
    Although Mr. Bradd submitted
    his revised groundwater monitoring plan on January 13,
    1989, the
    Agency rejected the plan in an April
    6,
    1989 letter.
    That letter
    stated,
    “Es)hould you wish to reapply or have any questions
    regarding this application, please contact (the Agency”.
    On
    August 21,
    1990, the Agency denied Mr. Bradd’s Affidavit for
    Certifications of Closure and determined that it would not issue
    a Certificate of Closure,
    in part, because Mr. Bradd had not
    satisfied condition 15(b)
    of his closure and post-closure plan.
    Specifically, the denial reason
    I of that letter stated as
    follows:
    Condition 15 of Permit No. 1988-SP required
    the submittal of a permit application
    assessing the current groundwater conditions
    at the site and proposing an adequate
    groundwater monitoring program.
    This has not
    been done.
    Although Application No. 1989-10
    attempted to satisfy this condition,
    it was
    denied on April
    6,
    1989 due to technical
    deficiencies.
    No subsequent application
    addressing these deficiencies has been
    submitted to the Agency.
    We are concerned with the fact that the Agency based its
    August 21,
    1990 denial of Mr. Bradd’s Affidavit for Certification
    of Closure on his alleged failure to submit an adequate
    groundwater monitoring plan pursuant to condition 15 of his
    closure and post—closure care plan.
    Our concern is magnified by
    the fact that the Agency offered Mr. Bradd an opportunity to
    submit another supplemental permit application in its April
    6,
    1989 denial letter, but did not specify a time frame for such
    action.
    Because no time frame was specified and because Mr.
    Bradd was planning to closing his facility prior to July 1,
    1990,
    we cannot say that it was unreasonable for Mr. Bradd to forego
    submission of another supplemental developmental and operating
    permit application and instead address the Agency’s groundwater
    concerns in his Affidavit for Certification of Closure.
    Moreover, neither Mr. Bradd’s failure to submit additional
    information prior to the submission of his Affidavit for
    Certification of Closure nor his failure to appeal the April
    6,
    1989 permit denial should preclude him from addressing the
    groundwater issue in his Affidavit for Certification of Closure
    or affect his right to appeal the Agency’s denial of his
    124—184
    3
    Affidavit of Certification of Closure.
    In other words,
    Mr. Bradd
    had the right to have the Agency to conduct
    a substantive review
    of his Affidavit and not merely back-reference the April
    6, 1989
    rejection of his prior revised groundwater monitoring program.
    However, that appears to be exactly what happened in this
    instance.
    Specifically, there is no indication that the Agency
    reviewed the merits of Mr. Bradd’s groundwater monitoring
    submissions in support of Affidavit for Certification of Closure,
    or otherwise interacted with Mr. Bradd,
    to determine if Mr. Bradd
    had an adequate groundwater monitoring plan at the time of
    closure and whether the site had been closed “in accordance with
    the specifications of the closure plan”.
    (see 35 Ill.
    Adm. Code
    807.508(b)).
    As a result, the Agency,
    in effect, denied Mr.
    Bradd the opportunity to appeal the merits of the Agency’s denial
    of his Affidavit of Certification of Closure and impertaissibly
    used the permit process as a means of enforcing an alleged permit
    violation (i.e.
    not having an adequate groundwater monitoring
    program).
    (see
    Waste Management v.
    IEPA, PCB 85-85,
    61, and
    68-,
    60 PCB 173
    (October
    1, 1984), aff‘d sub nom. IEPA v.
    IPCB and
    Waste Management
    v.
    PCB,
    138 Ill. App.
    3d 550,
    486 N.E.2d 293
    (3rd Dist.
    1985), aff’d 115 I11.2d 65,
    503 N.E.2d 343
    (1986)).
    Finally, we wish to note that the Agency, while advising Mr.
    Bradd that he could reapply or seek further information, failed
    to mention,
    in its April
    6, 1989 denial letter, that Mr. Bradd
    had a right to appeal its decision within 35 days.
    We suggest
    that such language would have eliminated any confusion as to
    whether the Agency’s April
    6,
    1989 determination was a final
    action.
    (see Marjorie Cami~bellv.
    IEPA, PCB 91-5
    (June
    6,
    1991),
    Johnson v. State Employees Retirement System,
    155 Ill. App.
    3d
    616,
    508 N.E.2d 351
    (1st Dist 1987)).
    Accordingly, for the foregoing reasons, we vacate our
    previous finding on denial reason
    1 and remand this matter to the
    Agency to conduct an independent review of Mr. Bradd’s
    groundwater monitoring plan on its merits to determine if it
    meets the Board’s closure requirements.
    In making this ruling,
    we emphasize that the Agency should handle this matter as it
    would an initial permit application and ensure that Mr. Bradd is
    treated as any other permit applicant in affording him the
    opportunity to submit additional information.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Boar4,. hereby ceit1~fie~
    that the above Order was adopted on the
    ~-‘~-~
    day of
    1991, by a vote
    g~
    _______
    Illi
    ~2-U
    Board
    124—185

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