ILLINOIS POLLUTION CONTROL BOARD
September 4, 1997
ESG WATTS, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-210
(Permit Appeal - Land)
ORDER OF THE BOARD (by J. Yi):
On May 23, 1997 ESG Watts, Inc. petitioned the Board pursuant to Section 40 of the
Environmental Protection Act (Act) for hearing to review the Illinois Environmental Protection
Agency's (Agency) April 15, 1997 issuance of a permit with conditions. 415 ILCS 5/40
(1996). Petitioner operates a solid waste and special waste landfill located in Rock Island
County, Illinois (known as Taylor Ridge or Andalusia landfill). On July 3, 1997 the Board
received a motion for summary judgment filed by the Agency. On July 23, 1997 ESG Watts
filed a response to the Agency's motion.
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ARGUMENTS
The Agency states that on December 2, 1996 it received from petitioner an application
for a supplemental permit (Illinois EPA Log No. 1996-404), dated November 27, 1996, that
sought approval of the biennial revision of petitioner's closure and post-closure care plan and
cost estimates for its Taylor Ridge facility pursuant to 35 Ill. Adm. Code Part 807, Subparts E
and F. The Agency states that on April 15, 1997 it conditionally approved petitioner's
application and issued Supplemental Permit No. 1996-404-SP.
As part of Supplemental Permit No. 1996-404-SP the Agency states that it included
certain conditions. Specifically, the Agency states that it conditionally approved the water
monitoring program suggested by petitioner pursuant to the requirements of Attachment A
being met. The Agency maintains that Attachment A "contained a 35 Ill. Adm. Code Part 620
Groundwater Quality Standards compatible Groundwater Monitoring Program applicable to a
sanitary landfill permitted under 35 Ill. Adm. Code Part 807." (Mot. at 2.)
The Agency asserts that the sole grounds for petitioner's appeal is that the permit
encloses Attachment A which was not included in the permit application and which the Agency
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The Agency's motion for summary judgment will be referenced to as (Mot. at _) and ESG
Watts response will be referred to as (Resp. at _.)
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unilaterally imposed. The Agency claims that the petition does not address any other general
or special conditions, and does not question any of the specifics of the Groundwater
Monitoring Program that are set forth in Attachment A. (Mot. at 3.) The Agency argues that
"[t]herefore, the sole issue on appeal in this case is the authority of the Illinois EPA to
“unilaterally impose” as a special condition the Part 620 compatible Groundwater Monitoring
Program that is set forth in Attachment A." (Mot. at 3.) The Agency concludes that the issue
is appropriate for summary judgment because it relates to the Agency's permitting authority
and is a question of law, and not a question of fact. (Mot. at 3.)
The Agency notes that petitioner's existing operating permit contains a Groundwater
Monitoring Program that was initially approved by it prior to the effective date the Board’s
Groundwater Quality Standards, set forth in 35 Ill. Adm. Code Part 620, promulgated
pursuant to the Illinois Groundwater Protection Act, 415 ILCS 55/1-9. (Mot. at 3.) The
Agency states that "[a]lthough technically adequate at the time it was first proposed and
approved, Watts’ current Groundwater Monitoring Program is inadequate to meet the
requirements of the Board’s 35 Ill. Adm. Code Part 620 Groundwater Quality Standards."
(Mot. at 3.)
The Agency concludes that since petitioner is presently subject to a Groundwater
Monitoring Program as a part of its current operating permit, that the imposition of the Part
620 compatible Groundwater Monitoring Program described in Attachment A does not
represent the unilateral imposition upon ESG Watts of a completely new program or activity.
(Mot. at 4.) Instead the Agency argues that it is a revision to current technical requirements of
an existing program or permitted activity already required by petitioner's current operating
permit. (Mot. at 4.) The Agency claims that the primary difference between the existing
operating permit and that on appeal is that the permit on appeal which contains Attachment A
revises the existing permit to include additional parameters in order to be compatible with the
Board’s 35 Ill. Adm. Code Part 620 Groundwater Quality Standards. (Mot. at 4.)
The Agency argues that it "not only has the right to so revise Watts’ permit so as to
make its current Groundwater Monitoring Program compatible with the Board’s Part 620
Groundwater Quality Standards, but - it is submitted - the Illinois EPA is also obligated to do
so." (Mot. at 4.) Citing to the language of 35 Ill. Adm. Code 807.209(a), the Agency argues
that it is required to revise petitioner's operating permit to make the Groundwater Monitoring
Program compatible with the Board’s Groundwater Quality Standards. (Mot. at 4.)
The Agency claims that if it is not allowed to impose conditions which are not part of
the application for permit that anytime there is a change in the law, a significant advancement
in scientific knowledge, or a significant enhancement in technical capabilities, the beneficial
effects of the changes would be deferred until the permittee chooses to modify the affected
parts of its operating permit. (Mot. at 5.) The Agency argues that this could not reflect the
intended desire of either the legislature or the Board. (Mot. at 5.)
The Agency maintains that pursuant to both Section 39(a) of the Act and 35 Ill. Adm.
Code Part 807.206(a), that it has the authority to impose such conditions in a permit that are
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necessary to accomplish the purposes of the Act, and as are not inconsistent with the Board
regulations. (Mot. at 6.) Accordingly, the Agency maintains that it has the regulatory
authority to revise petitioner's current Groundwater Monitoring Program by enclosing a Part
620 compatible Groundwater Monitoring Program as described in Attachment A as a special
condition to the supplemental permit in order to make petitioner's present Groundwater
Monitoring Program conform with the Board’s Groundwater Quality Standards as set forth in
35 Ill. Adm. Code Part 620. (Mot. at 7.) The Agency concludes that "[t]here exists in this
case no genuine issue of material fact, and based upon the foregoing, the Illinois EPA is
entitled to a judgment, or finding, in its favor as a matter of law." (Mot. at 7.)
Petitioner argues that it is not appealing on the basis that the Agency does not have the
authority to impose conditions so that permits comply with new or revised Board regulations.
(Resp. at 2.) Petitioner is requesting the Board to review the conditions contained in the
Attachment A because the petitioner asserts that those conditions exceed the requirements of
the Board regulations and are not necessary. (Resp. at 2.) Specifically, petitioner claims that
the Agency's Attachment A utilizes the standards of the 35 Ill. Adm. Code 620.410, standards
for Class I groundwater, instead of the standards for Class II groundwater as set forth at 35 Ill.
Adm. Code 620.420. Petitioner maintains that the groundwater at the facility is designated as
Class II groundwater. (Resp. at 2.) As a result of the disagreement as to which standards
apply to the groundwater located at the Taylor Ridge Landfill based on the classification of the
groundwater located at the facility, petitioner argues that there remains a genuine issue of
material fact and respondent is not entitled to judgment as a matter of law. (Resp. at 2.)
DISCUSSION
Summary judgment is appropriate when the pleadings, depositions and admissions on
file, together with any affidavits, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. (See
Purtill v. Hess
, 111 Ill. 2d
229, 240-41, 489 N.E.2d 867, 871-72 (1986),
Waste Management of Illinois v. IEPA
, (July
21, 1994), PCB 94-153;
Solomon v. American Nat'l Bank & Trust Co.
, 243 Ill.App.3d 132,
612 N.E.2d 3 (1st Dist. 1993).)
Petitioner states that it is not challenging the Agency's authority to revise its permit to
conform with current regulations but is instead challenging what is required to make its current
Groundwater Monitoring Program compatible with the Board's Groundwater Quality
Standards. The Board finds that there are genuine issues of fact to be resolved in this
proceeding. There remains an issue of material fact concerning the classification of the
groundwater at the Taylor Ridge facility which must be determined in order for the Board to
rule on this appeal. Therefore, the Board finds that there are genuine issues of fact to be
resolved in this proceeding. The motion for summary judgment is denied, and this matter
shall proceed to hearing.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 4
th
day of September 1997, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
