ILLINOIS POLLUTION CONTROL BOARD
December 2,
1982
BROWNING FERRIS INDUSTRIES OF
)
ILLINOIS,
INC.,
)
Petitioner,
)
v.
)
PCB 82—101
)
LAKE COUNTY BOARD OF SUPERVISORS,
)
)
Respondent,
)
and
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
)
Intervenor
-
Petitioner.
MURRAY
R. CONZELMAN (CONZELMAN, SHULTZ, SNARSKI
& MULLEN). A~m
FRED C.
PRILLAMAN (MOHAN,
ALEWELT
& PRILLAMAN) APPEARED ON
BEHALF OF PETITIONER;
GERALD
P. CALLAGHAN AND GARY NEDDENRIEP, ASSISTANT STATE’S
ATTORNEYS, APPEARED ON BEHALF OF RESPONDENTS
WILLIAM
E. BLAKNEY APPEARED ON BEHALF OF THE INTERVENOR.
OPINION AND ORDER OF
THE
BOARD (by J. Anderson):
This matter comes before the Board on the August
16,
1’)82
appeal filed by Browning Ferris Industries of Illinois
(BFI).
Pursuant to Section 40.1 of the Environmental Protection Act (Act)
BFI
is challenging certain special conditions contained
in the
July 13, 1982 grant by the Lake County Board of Supervisors
(Lake
County) of Section 39.2 site location approval
for the proposed
acceptance of special wastes by an existing landfill located in
unincorporated Lake County (Lake County Rec. p. 1315—1327).
PROCEDURAL HISTORY
The subject site, referred to in the record as BFI Site #2.
has been in operation since January
7,
1982.
It consists of about
74 acres located about 2000 feet east of the northeast corner of
9th Street and Green Bay Road near Winthrop Harbor.
BFI Site #2
is immediately adjacent to SF1 Site
#1,
a 74 acre site currently
permitted for the disposal of special
and hazardous wastes.
SF1
50-61
2
repeatedly stated that it was not seeking County siting approval
for disposal of hazardous wastes
in Site #2, but,
rather, non—
hazardous special wastes
See
Sec.
3(x)
of the
Act
The County held four public hearings concerning BFI’s
April
12,
1982 application
(LC Rec.
1—347).
These hearings
were held on May 26,
June
2,
7 and 17,
1982
(LC Rec.
811—1314),
pursuant to notice
(the adequacy of which is not at issue),
in
accordance with procedural rules adopted by County resolution
of April
13,
1982
(LC Rec. 361—371).
Pursuant to these rules, hearings were conducted by the Lake
County Regional Pollution Control Hearing Committee (Committee),
and were attended by Committee
(arid
County Board) members Jim
LaBelle, Stanley Pekol, Glen Miller,
Sam Payne and Jim Fields.
Assistant State’s Attorneys Gary Neddenriep and Gerald P.
Callaghan
served as
legal advisors/hearing officers for the Committee.
BFI initially presented six witnesses at hearing.
James
Andrews, David Beck and Roberta Jennings of Andrews Engineering
Inc.,
which
is the consulting and design firm retained by BFI,
gave testimony concerning the geology of the area, site design,
and projected and recommended site operation.
George Edema,
Sr.
of BFI explained the history and nature of the company and clari-
fied several matters
in BFI’s application.
Herbert
F. Harrison,
a real estate appraiser and land use consultant retained by
13F1,
gave his opinion concerning the effect of site location approval
on surrounding properties.
The City of Zion presented two witnesses
in opposition to
BFI;
a “Zion development”
is located across 9th Street from
Site #2
(LC Rec.
1177).
The first witness,
Raymond Stanzcak,
had been employed at BFI Site
#1 from about November,
1980 until
his termination March,
1981.
He spoke concerning perceived
deficiencies in operational and manifest discrepancy testing
procedures during the period of his employment.
City Council
Member Marjorie Semmholtz gave her views concerning
the problems
of landfill disposal methods and the effects of BFI Site
#2 on
the adjoining portion of
Zion.
Michael Isom of the Village of
Winthrop Harbor and Mr. Kiammer
(sic)
of
Benton Township each
registered the opposition of his respective governmental unit.
Pursuant to the County’s aforementioned April
1.3,
1982
Resolution
(LC Rec.
361 et seq.), various County departments were
authorized to review the BFI application, to make recommendations
and reports, and to testify at hearing.
Testimony was presented
by Dr.
Thomas
K. Nedved of the County’s Department of Public
Health, by Chuck Zieler and Dave Moulton of the Department of
Building and Zoning, and by Lane Kendig and Jeanne Becker o?
the
Department of Planning,
Zoning and Environmental Quality.
Their
testimony concerned in part staff reports apparently available at
hearing, but which were not formally entered as exhibits
(LC Rec.
650—685).
50-62
3
BFI presented one rebuttal witness, Mary Powles
(incorrectly
referred to in the transcript as Mark Poulce--see BFI Reply
Brief
at 12).
Mr. Powles, who had been Mr.
Stanzcak’s supervisor,
testified concerning the events covered by Stanzcak’s testimony.
In its July 13,
1982 Resolution conditionally approving the
site,
the County made an unequivocal finding that
4 of
the 6
criteria of S39.2 had been satisfied.
Special conditions were
attached to the approval relating
to
the criteria that a) “the
facility
is so designed,
located and proposed to be operated
that the public health, safety and welfare will be protected”,
and b)
“the plan of operations for the facility
is designed to
minimize the danger to the surrounding area from fire, spills,
or other operational accidents”
(S39.2 of the Act).
The challenged special conditions are,
and provide for (in
summary):
C
Right of unannounced site inspections and investigations by
the Lake County Department of Public Health
(LCDPH)
E
LCDPH Inspection of special waste manifests and manifest
discrepancy testing
G
LCDPH right to discuss and recommend nuisance control
remedies
H
LCDPH right to discuss and require additional measures to
control vectors,
dust, odors, blowing and erosion problems
I
LCDPH right to a)
receive copies of quarterly monitoring
well reports, and b) to discuss and require additional
reports and wells
K
a)
BFI to have on—site chemist of specified educational
background and experience
to conduct specified manifest
discrepancy testing b) LCDPH right to discuss and require
additional on—site and off—site testing
H
BFI to reduce pollution loads in stormwater run—off by 50
N
a) BFI
to notify LCDPH before pumping of water off—site,
b) LCDPH right to
test water for pollutants before pumping.
P
BFI to obtain state permits for any diversion of stormwater
from Lake Michigan watershed
0
a) BFI to maintain daily logs on specified liquids to
solid ratio, with logs to be submitted to LCDPH monthly
and excursions from 10 gallons of liquid to
1 cubic yard
of solids
to be reported daily,
b) LCDPH right,
after
inspection,
to close
site to further liquids.
50-63
4
S
BFI to run and report quarterly results to LCDPH of tests of
all private drinking wells within 500 ft.
of site
(if owners
approve)
T
a) BFI to “sound gas vents” for liquid levels on excavated
trenches quarterly for life of site plus
3 years,
h) weekly
monitoring required if
level reaches 10
ft. and c) measures
to lower liquid level
required by County
if levels rise.
V
BFI to pay LCDPH a yearly inspection
fee:
$1000, to be
adjusted yearly to cover
EJCDPH actual costs.
W
13F1 to provide proof of
financial responsibility by means of
bond, escrow agreement or insurance policy for life of site
plus
20 years
in the amount of
$3 million.
X
a) Illinois Environmental Protection Agency
(Agency) to
include all county conditions
in any Agency permits
to BP(.
b) Agency to enforce such conditions
Provisio, unnumbered
¶,
p.
8
-
BFI to pay all publication,
court
reporter and transcription costs of county board’s hearings,
In accordance with the Board’s Order of August 18,
1.982,
Lake County filed
its 1331 page record with the Board on
September
8,
1982.
On October 5,
1982 the Agency moved the
Hearing Officer for leave
to intervene,
which motion was granted
by his Order of October 6,
1982.
Hearing was held on October
20,
1982 in Waukegan,
Illinois,
at which all parties and some members
of the public were present.
At this short
(30 page transcript)
hearing, Hearing Officer rulings were sought and obtained on the
correctness of inclusion of certain items
in the County’s record,
all other arguments being reserved for briefing pursuant to
schedule.
On November
1 and 24,
1982,
respectively, the Agency
filed a brief and reply brief challenging Special Condition X.
BFI’s opening brief was filed November
3,
1982,
Lake County’s
brief on November 17,
1982,
and BFI’s reply on November 29, 1q82,
THRESHOLD LSSUES
Review of BFI Motion to Strike
Two items presented at hearing were the subject of
a SF1
motion to strike denied by the Board’s Hearing Officer at the
October 20,
1982 hearing.
BFI seeks review of these rulings.
The motion was granted as to a third group of items, which the
Board will address sua sponte.
The first item is
a letter dated June 3,
1982 from
the
Agency to Fred Prillaman with attached copies of several Agency
Inspection and Observation Reports
(LC Rec.
718-817).
This item
consists of two years of reports on adjacent
BFI Site #1.
50-64
5
Request for this information was made by Committee Member LaBell.e
on June
2,
1982, who stated that he “would like those reports
submitted for the record”
(LC Rec.
982-983).
The records were
tendered by BFI’s counsel on June
7,
1.982,
who noted that
in
SO
doing he was “not filing this as an exhibit on behalf of the
applicant”
(LC Rec.
1143).
On June
17, this position was
reaffirmed
(LC Rec. 1297).
BFI objects to the County’s inclusion of these documents
in
the record on the grounds that a)
they were never formally marked
as anybody’s exhibit and were not admitted as evidence,
and b)
that they constitute hearsay.
The County’s position is that a)
it has no objection to sponsoring these exhibits at this time,
hut that since BFI did not object
to inclusion of these documents
“in the record”
it has waived any objection and b) that the Agency
reports
fall within the business records exception to the hearsay
rule, City of Highland Park v. Pollution Control Board,
66
Iii.
App.
3d 143,
383 N.E.2d 692
(1978),
or within a publf~records
exception
to that rule.
BFI responds that a)
as
the records were
never formally offered, no objection need have been made,
and b)
that Highland Park was premised on the Board’s adoption of a
procedural rule (codified as
35
‘11.
Mm.
Code 103.208) virtually
identical to Supreme Court Rule 236(a).
Assuming that this were a County enforcement action (present
legal authority for which is non—existent), seeking to resolve
whether BFI had violated the Act or the Board’s rules, BFI’s
argument concerning the County’s failure to formally offer and
then admit the records
into evidence would have some merit.
However,
the lack of objection to Mary Powles’ discussion of
these reports on cross—examination undercuts the argument
(LC Rec.
1279 et seq.).
Where a party’s “guilt” or “innocence” hangs in
the balance, adherence to formal rules of evidence is necessary
in the interests of
fundamental fairness.
Similarly, under such
circumstances, the argument that the admissibility of hearsay
evidence which would be relied upon by the courts or the Board
should be barred bacause of lack of an enabling County procedural
rule might have some validity.
However, as the Board noted in Village of Hanover Parkv,
County Board of Du Page,
et al.,
PCB 82-69
(Order of August 30,
1982; Opinion September 2,
1982), the County’s §39.2
“fact
finding public hearing is more characteristically legislative
than
adjudicatory in nature
(Op. at
8,
see also p.
4—5).
The
purpose of such hearings
is to adduce information “which is
material,
relevant, and would he seriously relied upon by
reasonably prudent persons
in the conduct of serious affairs”
till.
Adrn.
Code 103.204(a).
Technical “defects”
or informalities in
the conduct of the County’s hearings which do not go to the
fundamental fairness of the proceedings or the decision cannot.
and should not,
as a matter of policy serve as the basis for
striking relevant information upon which the County relied.
50-65
6
The Board therefore finds that the Agency records were
properly included in the County’s record, despite the technical
failure to label them as
a County exhibit.
The Board further
finds that these hearsay records were properly “admitted”
at
hearing, particularly as no substantial reason has been offered
to depart from the policy expressed in 35 111. Mm. Code
1.03.208,
The second item consists of attachments
to a May 4,
1982
letter submitted to the County by the City of Zion during the
30 day public comment period provided by §39.2
(LC Rec 424—649),
These attachments consist of newspaper articles, memos, position
papers, book excerpts, etc., which
BFI argues are hearsay
inadmissible even in administrative hearings e.g. Russelv.
License Ap~ealCommission of the City of Chicag~, 273, N.E.2d
650
(1st Dist.
1971).
The County argues that the attachments
are referred to by number throughout the course of
the letter,
and are an integral part of the City’s public comment.
It notes
that §39.2(c) requires the County to consider any timely filed
comment,
so that the legislature must have intended to exempt
these comments from the hearsay rule.
The County also suggested
that questions concerning the “reliability of such documents and
Petitioner’s inability to cross—examine their authors should not
effect
(sic) their admissibility hut only the weight to be given
to them”
(County Brief at 27).
The Board agrees with the County that to strike public
comments as hearsay would render this §39.2(c) mechanism for
public input meaningless.
The Board notes that in
its own quasi—
legislative rulemaking authority under Title VII of the Act and
the Illinois Administrative Procedures Act,
that it
is mandated
to consider public comments as well
as sworn testimony contained
in a transcribed record.
As the County notes,
the apparent
conflict is resolved by appropriate weighing of the differing
submittals.
The Zion letter with its attachments was properly
included in the County Record.
The Board wishes to comment on eleven items which the County
agreed to strike from its record upon BFI’s motion.
These items
are letters and other documents which were “either not stamped by
the County Clerk or were ~letters1~actually dated...beyond the 30
day public comment period”
(R.
4), established in §39(c)
of the
Act and repeated without change
in the County’s Procedural Rules
(LC Rec.
361).
It was further stipulated that the County did
not rely on these materials in making its decision
(R.
4—5).
It would appear that the parties have construed S39.2(c)
as
providing
a maximum period for public comment, which restrains
the County’s authority to consider comment.
The Board considers
39.2(c)
to be a guarantee
to the public of the minimum period
in
which it may submit written remarks.
This period could,
therefore,
be extended by procedural
rule, or could be “stretched”
to accept
late—filed comments where to do so would not prejudice the
applicant or the fairness of the hearing process.
50-66
7
App~iicabilityof Hanover Park Decision
In the Hanover Park Opinion of September
2,
1982, the Board
determined that since it must review the County’s siting decisions
and cannot hold de novo hearings pursuant to §40.1 to fill any
gaps
in the County’s record or decision, that
“the County’s written decision must clearly indicate
the information which it finds persuasive, and comment
on what it does not.
The reasons for its ultimate
conclusions must be made clear.
If conditions are
imposed, the County must relate from which of the
statutory criteria they flow,
and why they are
necessary.”
(Opinion at 10.)
BFI contends that the County’s resolution is deficient in that
it
fails
to contain explanatory information,
and apparently suggests
that it be remanded.
The County argues that Hanover Park should
not be retroactively applied to a decision taken July 13,
1982.
It argues that it has substantially complied with the Act,
citing
Incinerator, Inc.
v.
Pollution Control Board,
59 Ill.2d 290,
319
N.E.2d 794
(1974), and that the Board should consider its decision
and record.
The above—quoted language from Hanover
~
was intended
to
“flesh
out’1
the §39.2 guidelines
for written decisions by a county,
with the expectation that “decisions...rendered after the date of
the
opinion would be more specific
in this regard”
(Incinerator,
319 N.E.2d at 799).
The record in this case, which is most
laudably well—organized both from the points of view of the
mechanics of paper handling and of background material addressing
the six criteria and various proposed conditions, does indeed
demonstrate substantial compliance with the Act.
Remand without
consideration of the merits would therefore not be in the interests
of administrative economy.
THE CONDITIONS
Spheres of Interest of the A~encyand Local Government and The
Waste Management Decision
Section 39.2(3)
of the Act provides
in relevant part:
“In granting approval for
a site the county board...
may impose such conditions as may be reasonable and
necessary to accomplish the purposes of this Section
and as are not inconsistent with regulations
promulgated by the Board.”
In Waste Management of Illinois,
Inc.
v. Board of Supervisors
of Tazewell County,
PCB 82—55,
August
5,
1982,
the Board
determined that it was not one of the purposes of the Section to
50-67
8
give “local authorities concurrent jurisdiction with the Agency
to review highly technical details of the landfill design
and
construction”.
The Board looked to legislative history in making
this determination, citing the intent of SB 172’s sponsor that
“They
the
local authorities
are not to make technical decisions
concerning the suitability of the site, rather that power still
lies in the Environmental Protection Agency”
(p.
10).
Section 39.2(a) of the Act provides in pertinent part that:
“The county board...shall approve the site location
suitability for such new regional pollution control
facility only in accordance with the following
criteria:
(ii) the facility is so designed,
located and
proposed to be operated that the public health,
safety and welfare will be protected;
(v)
the plan of operation
for the facility is
designed to minimize the danger to the surrounding
area from fire,
spills,
or other operational
accidents.”
The County alleges first, that the cited language
is “clear
and unambiguous”,
so that review of
legislative intent is
precluded e.g.
Berwyn Lumber Co.
v.
Korshak,
34 Ill.2d 320,
21.5
N.E.2d 240
(1966T.
It then argues that the remark of one
legislator does not establish the intent of the legislature.
Section 12(b) of Title
I:
General Provisions provides
in
part that:
“it
is the purpose of this Act,
as more specifica~!.jj
described in later sections,
to establish a unified,
state-wide program supplemented by private remedies,
...“
(emphasis added).
In the contest of this pre—existing legislative commitment to a
“unified state—wide program”, the language of §39.2 providing for
local control
of conditions concerning site location suitability
is hardly clear and unambiguous.
The extent to which and manner
in which
local siting concerns are to be dovetailed with statewide
interests
is in no manner “specifically described”.
As to expressions of legislative intent, the Agency points
out in its brief that some of the legislative history of
539.2
(SB 172)
is contained in gubernatorial veto and amendatory
veto
messages.
50-68
9
As originally enacted SB 172 contained a proposed Section 7.2
which provided:
“Sec.
7.2.
Counties and municipalities may
adopt and enforce ordinances regulating pollution
control, provided such regulations and enforcement
are
in accordance with and no more stringent than
the terms and provisions of this
Act, except that
the regional pollution control facility siting
provision of Section 39.1 shall be the exclusive
siting procedures for such facilities...”
(Journal
of the Senate,
July
1,
1981,
p.
4210.)
In exercising his veto authority under Article IV, Section
9(e)
of the Illinois Constitution (1970),
Governor Thompson,
however,
struck that proposed Section,
stating:
“The new Section 7.2, which would be added
by the bill,
is substantially equivalent to
House Bill
847,
which
I have vetoed.
In addition
to my reasons for vetoing HB
847,
it
is also true
that this authority is not directly related to
the siting process outlined in SB 172, and serves
only to add a confusing, extraneous provision
which should be deleted.”
(Journal of the Senate,
October
1,
1981,
p.
4469.)
The Governor’s veto of Section 7.2 was subsequently upheld
(Journal
of the Senate,
October 30,
1981,
pp. 4975—6).
In vetoing HB
847
(which paralleled SB
172),
the Governor
stated:
“This bill would allow counties and municipalities
to adopt and enforce pollution control ordinances
which are no more stringent than the terms and
provisions of the Environmental Protection Act.
Though limited, the authority granted by HOUSE BILL
847 would have the potential for creating confusion
and fragmented regulatory requirements for Illinois
industry to meet around the State.
I believe the Illinois Constitution and the
Environmental Protection Act clearly intended that
we establish a unified state—wide program of
environmental protection.
This goal
is being met
by a strong state program of pollution control
regulation.
It should not be frustrated by the
duplication of efforts and lack of uniform
standards and enforcement that would result from
this bill.”
(Journal of the House of
Representatives, October 1,
1981,
p.
6493.)
This veto was subsequently upheld
(Id.
at 6649).
50-69
10
The ~oard accordingly reaffirms its Waste Management finding
that there is a separation of review criteria between the Agency
and local authorities.
The Agency, with its broad-based staff
and research experience and capabilities, continues to have
administrative jurisdiction over the detailed,
specific, uniform “environmental” specifications of
a landfill’s
construction, waste disposal procedures, and the like; pollution
events resulting from faulty design or operation can easily cross
the boundaries of the unit of local government having site location
approval authority.
It is given to the municipal and county
authorities to review,
and base
its decision on, matters of more
traditionally “local” concerns raised by potential conversion of
a site from one use to another; these include odor,
noise and
pest nuisances, road maintenance and cleaning, increased call on
police and fire departments, visual aesthetics, and so on.
This
is not to say that both the Agency and the County cannot
focus on a similar subject matter, hut for different reasons.
!~,r
example,
the Agency’s interest in a final cover designed
to prevent
a “bathtub” effect and the County’s interest in a final planting
cover designed for visual aesthetics emanate from different
jurisdictional responsibilities,
the former to protect the State’s
waters——which do not respect local boundaries——and the latter to
prepare for, say, ultimate recreational uses—-which do respect
local boundaries.
Also, regardless of the quality and quantity of local
staffs, to construe SB 172 as giving counties and municipalities
the power over regional facilities to co—regulate in technical
areas, especially as related to the Agency’s permit purview,
is
to assure chaos.
It
is easy to visualize the consequences of
counties, municipalities and the state collectively dictating
conditions
for, say, the proper placement,
depth, numbers,
use
of,
capping etc.
of testing and monitoring wells.
And to expect
the Agency to later “adjust” county technical conditions that are
incompatible with the Agency’s view of the proper and safe use of
testing and monitoring probes is
to ignore the fact that,
if the
Agency does so,
it can be contravening the County approval upon
which the Agency’s power to issue the permit is derived.
And
after the County’s 120 day decision period is up,
there is no
“going back” for fine—tuning.
The County’s site location suitability approval
is
a power
which precedes the Agency’s power to issue
a permit,
and is not
a substitute for it or a site management overlay upon
it.
However,
SB 172 places the County and its citizens
in a strengthened and
better informed position
to effectively seek sanctions against a
landfill operator who affronts the sensibilities of the person in
the surrounding areas.
50-70
11
~
The
Agency strenuously objects to inclusion
of Special
Condition X,
requiring the Agency to include
County
conditions
in
its permits and to enforce them.
Prior to the passage of
SB 172
it was well
settled that the
Agency, not the
Board,
had exclusive
authority to write and to
issue permits,
e.g.
Landfill,
Inc.
v.
Pollution Control Board,
74 Ili,2d 541,
387 N~
I
7W.
It had also been foufT~
that,
as
between the Agency and local
government, permits could
not be issued subject to
local conditions,
on the grounds that
this could frustrate
the Act’s intent to
establish a “unified,
state-wide
program” Carlson v.
Village of Worth,
25 111.
App.3d
315
(1st Dist,
1974), affd.,
62 Ill,2d
406
(1976),
The Agency
asserts that passage
of
SB 172
does not alter either
interpretation of the
Act’s
permitting system.
Section
39.2 does not
explicitly mandate inclusion of siting
approvals
in Agency permits,
and does not mandate Agency enforce-
ment of these conditions.
The
Agency further
notes that Section
39(c)
of the
Act gives
it authority to
establish conditions
“necessary
to accomplish the purposes of this Act”.
It remarks
that this authority
is
far broader than that granted
to the County
to impose site location
suitability
conditions,
which is confined
to conditions to “accomplish the purpose of this Section
39.2”.
Under these circumstances,
SF1 and the Agency argue that
imposition of differing local conditions
runs counter to develop-
ment of a unified enforcement program, and would impose new
financial and technical enforcement burdens on the Agency.
In
essence, the County’s
argument
is that if siting approval
conditions are unenforceable,
that it has
been given a hollow
right for
which
no remedy exists.
It then argues
that since the
Agency is
a state—wide enforcement body,
it is appropriate
to
have local
conditions enforced via state permits.
The
Board agrees that the power to enforce a Section
39.2
siting condition must necessarily
be
implied,
to avoid rendering
the section a
nullity.
The potential availability
of enforcement
of conditions
in a circuit court under a quasi—contract
or similar
theory does
not satisfy the Act’s general
concern
that cases
arising from the
Act be adjudicated, and
appealed if necessary,
in
an expedited manner.
The hoary
maxim that “Justice delayed
is
justice
denied” most
certainly applies
here,
However, the
Board agrees that
both itself and the County lack
authority under
Section 39,2
to interject themselves into
the Agency permitting
and enforcement system in the
manner
suggested by the County;
Special Condition
X
is stricken.
This
does not however leave the County without a remedy.
It
is the Board’s
opinion that the broad language
of Sections 31(b)
and 33(a)
of
the Act confers the right to enforce siting
location
suitability
approval conditions
in an
enforcement action before
the Board.
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Section 31(b) provides that
“Any person may file with the Board a complaint...
against any person allegedly violating this Act or
any rule or regulation thereunder or any permit or
term or condition thereof...”
(emphasis added).
Section 33(a) provides that
“...the Board shall issue and enter such final
order,
or make such final determination, as
it
shall deem appropriate under the circumstances...”
Siting approval conditions
are
in the nature of conditions
precedent to an Agency permit, or of
a site—specific rule,
enforcement of which falls within the intent of Section 31(b)
to
allow all causes arising from the Act to find a remedy.
This
construction effectuates legislative intent that local interests
as well as state—wide interests arising under the Act be afforded
an administrative forum, and a remedy “appropriate under the
circumstances”.
Certain other points argued in the briefs
in the context of
various special conditions should be addressed in the context of
the powers of various agencies and entities under the Act.
The
Act establishes a system whereby any person or entity
a)
generally
subject to Board regulations can participate
in the rulemaking
process itself and challenge the rules prior to their enforcement
(~27—29)and b)
specifically subject to Agency permit conditions
can challenge permit conditions prior to their enforcement in
a
permit appeal proceeding
(S40).
The Act therefore provides an
“up—front” mechanism by which a person can challenge requirements
believed
to be lacking in specificity, standards for exercise of
discretion,
or the like.
Many of the County’s conditions include provisions requiring
that BFI perform acts when,
as,
and if,
the County determines them
to be necessary at some time in the future.
The County argues that
SF1 can challenge any such County directives made subsequent to
permit issuance in the context
of
an enforcement action presumably
brought by the County or Agency after BFI has failed to comply.
This runs counter to the Act’s established mechanism to allow for
appeal, prior to enforcement exposure,
of the reasonableness of
actions required to be taken to implement the Act.
~~ermissible
“Technical” Conditions:
B,
K,
0,
T,
I
Special Condition E, allowing for County inspection of
special waste manifests and manifest discrepancy testing,
and
Special Condition K,
requiring BFI to have an on-site chemist
of specified educational
and experience background to perform
specified tests
in addition to all others later required by the
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13
LCDPH,
flow from the same set of County concerns.
These are that
BFI Site #1, the already permitted special and hazardous waste
site, and Site #2 will be served by the same entrance gate and
separated internally only by a 10 foot clay wall
(LC Rec.
855—
1009).
Based on the testimony of former SF1 employee Raymond
Stanczak, rebutted by BFI, the County questions the adequacy of
BFI’s past conduct and testing procedures concerning Site #1.
It also questions the Agency’s ability to provide sufficiently
close inspection supervision.
These conditions involve the highly technical subject areas
which have been historically within the province of the Agency,
and are covered in part by the Board’s Chapter
9:
Solid Waste
Regulations.
These are therefore stricken as being beyond the
area of the County’s §39.2 jurisdiction.
Special Condition 0, specifying a 10 to
1 liquids to solids
ratio,
logging and reporting concerning ratio maintenance, and
providing the County with authority to shut down the site if the
ratio standard is violated, also impermissibly seeks to regulate
a highly technical area of site operation.
BFI notes that the
shut—down provision, triggered by an inspection which “demonstrates
problems” raises additional concerns.
The definition of “problems”
is left to the unfettered discretion of a County inspector,
who
presumably could overrule the opinion of an Agency inspector that
no “problems” existed.
Once a site were shut down, no standards
specify conditions under or procedures by which it could be
re—opened.
In effect, the County as mini—EPA is attempting to
assume closure powers granted in the Act only
to the Board,
in a
manner which bypasses the up—front procedural safeguards contained
in the Act.
This condition is stricken.
Condition T, regulating the overall liquid
level
in the
landfill and providing for pumping and unspecified “treatment”
if the level exceeds 10 feet as determined by “sounding the gas
vents”, pinpoints another problem associated with local imposition
of technical conditions:
imposing inappropriate or even
technically infeasible conditions.
As SF1 notes,
there is no
record basis for the 10 foot maximum chosen,
and no definition of
the “treatment required”.
BFI also notes that gas vents are not
installed until after the trenches are closed,
do not extend to
the bottom of the fill,
and are not installed for the purpose of
measuring liquid levels
(LC Rec.
0157).
This condition is
stricken.
Special Condition I, to the extent that it allows the County
to require additional monitoring wells and testing devices to
determine water and air pollution,
is stricken.
This condition
is,
again,
standardless and seeks to regulate in a highly technical
area.
In addition, the requirement duplicates a Special Condition
8 already included in BFI’s December 23,
1981 operating permit.
(As BFI has not challenged the requirement to provide the County
with monitoring well test results,
the provision stands.
See also
discussion immediately following.)
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Inspection Authority:
Condition C
Nuisance Control Recommendations:
Conditions
G
& H
At hearing, counsel for SF1 represented that
“obviously we have no objection to the Counties
(sic)
conducting inspections, advising us, recommending
things.
We have no problem with County receiving all
our information.
We have no problems with the County
appearing on inspections with the EPA and so on.”
(LC Rec.
1289.)
BFI objects to three conditions directly involving these areas.
Special Condition C would give the LCDPH the right to make
unannounced inspections at reasonable times.
The nuisance control
conditions involve traditional
local health concerns:
G, with any
nuisance associated with special waste disposal,
and H apparently
with pest,
odor,
litter and dust problems connected with the
disposal operation as
a whole.
They differ in that G involves a
right to “discuss and recommend” while H involves a right to
“discuss and require”.
BFI argues that an inspection right would be duplicative
of the inspection rights accorded to the Agency by Section 4(c—d)
of the Act,
that an investigative right is not contained in
Section 39.2 of the Act, and that continuing involvement in the
site
is, in essence, incompatible with the concept of
a County’s
authority to make a one—time determination concerning the
suitability of a site’s location.
In support of imposition of the inspection condition, the
County asserts that the Agency’s approximate monthly inspection
schedule
(LC Rec. 930,
1006—1007)
is insufficient to insure
its
citizens health, safety,
and welfare.
It would also follow, but
was not specifically argued, that inability to inspect would
undermine the County’s ability to implement and enforce conditions
such as G and H.
Even prior to enactment of SB 172,
it
is true that the Act
vested “any person” with authority to bring enforcement actions,
but only the Agency with specific investigative authority.
Of
course, some entities are in possession of independent statutory
authority to inspect facilities for other than “environmental”
purposes.
A County health department is among these, having
authority “within
its jurisdiction, and professional and
technical competence,
to
make all necessary sanitary and health
investigations and inspections” pursuant to Ill.
Rev.
Stat.
Ch.
111½, ¶20c13.8.
As SB 172 requires that a regional pollution control
facility apply for local government site location approval
a)
prior to seeking any initial permit,
b) prior to any physical
expansion, and c) prior to seeking any first—time permit to accept
special or hazardous waste, SB 172 clearly contemplates an ongoing
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15
relationship between a county or municipality and a site.
However,
the Board does not find that SB 172 provides any independent
authority for investigation of
a site by a county department not
authorized to do so by other enabling statutes.
As Condition C
is
essentially a restatement of existing LCDPH authority,
it will he
stricken.
Condition G and H involve a proper sphere for county interest.
As BFI points out, however, these conditions do involve areas
addressed in permits it currently holds.
The Board finds
it
entirely proper for the LCDPH to “discuss and recommend” control
measures, but not to “re9uire” measures which might conflict with
permit conditions.
Condition G is affirmed, and Condition H
will be amended to confer a parallel right to “recommend”, hut
not to “require”.
Drainage Conditions:
M,
N,
P
The Board has previously found that drainage conditions are
a proper area of local concern.
Condition M requires compliance
with “the water quality goal
of the 208 Areawide Water Quality
Management Plan” by reducing stormwater runoff pollution loads
by 50.
BFI argues that this “goal” has not been enacted as
law,
and so cannot be enforced.
It also argues that compliance with
the plan has no relation to site location suitability.
The County
argues that,
since the County can be penalized for not enforcing
the plan,
SF1 should be made
to comply with it
(LC Rec.
1263).
Fulfillment of the 208 Plan by siting condition goes beyond
the scope of the criteria listed in Section 39.2.
It
is therefore
stricken.
Condition N is affirmed to the extent it requires notification
before pumping of water off-site;
this was agreed to at hearing
(LC Rec.
at 1000—1001), and concerns
in part volumes and patterns
of runoff.
The testing for unspecified “pollutants befot-e pumping
begins” portion of the condition
is stricken as vague and involving
pollution control monitoring and testing techniques and parameters
more appropriately within the Agency’s purview.
Condition P requires that BFI obtain state permits
if
stormwater is to be diverted from the Lake Michigan watershed.
As this is a restatement of existing
law,
it
is stricken as
superfluous.
Private Well Testing:
Condition
S
Condition
S would require SF1 to test the waters of private
wells located within 500 feet of the site on a quarterly basis
(if the owner so consents) and to report results to the LCDPH.
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16
While this provision flows from a concern of risks to health in
the event wells are contaminated, the condition
is so vague as
to be unenforceable.
The record does not support the choice of
the
500 foot limit.
No specific tests are specified, which is
not surprising
in that the LCDPH itself does not have a routine
monitoring list of parameters to be tested
(LC Rec.
1212).
The
condition is stricken.
Financial and Cost—Shifting Conditions:_ V, W and the unnumbered
proviso
Condition V essentially requires BFI to yearly pay all LCDPH
inspection costs.
W requires provision of proof of financial
responsibility.
The proviso requires SF1 to pay the costs of
notice publication, court reporting and transcription arising
from the site approval hearings.
All are stricken.
Section 39.2 in no manner directly refers to payment of costs
or imposition of financial responsibility.
As to hearing costs
BFI argues,
and the Board concurs, that Sections 39,2(b)
and
(d)
seem to
imply that costs of notice are to be borne by the person
responsible for publishing them.
The County argues that this
and another set of SB 172 hearings has cost in excess of $11,000
and that this financial burden should be imposed on SF1,
whose
land has been made more valuable, rather than on the taxpayer.
In this context,
it argues that “local government’s
(sic) have
long charged filing fees to cover the costs of conducting zoning
hearings”
(LC Brief at 23).
The legislature has specifically authorized the Agency in
Section 4(i)
of the Act to charge reasonable fees for permits
(which are not in the aggregate to exceed the costs of its
inspection and permit programs).
The Board cannot construe the
silence of Section 39.2 as authorizing the county to assess even
actual cost fees.
As to the County’s usual practice
in zoning
cases, Section 39.2(f) specifically provides that “local zoning
...requirements shall not be applicable to such siting decisions”.
As no other statutory basis for the shifting of costs has been
cited to the Board, the Board cannot affirm this condition.
Even were such authority to be found, the ex post_facto
manner in which the County has attempted to impose the condition
is fundamentally unfair.
The Board notes that an $8,000
application fee is provided for in the procedural
rules enacted
the day after the BFI application was filed,
so that the County
has attempted to play “catch-up”.
Had SF1 been denied siting
approval, how,
if at all, would the County have attempted to
recover its costs?
The inspection program fee, too, falls for lack of statutory
authority.
Even did it not, the provision for payment of an
“unstated, open—ended amount to be determined unilaterally by the
County Board at the end of the year” would amount to a fundamentally
unfair exercise of power.
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17
Special Condition W provides for proof of financial
responsibility in the amount of $3,000,000 for the life of the
site
(estimated at 20 years) plus 20 years.
Section
39(a) of
the Act provides that the Agency may not require a bond or other
security as
a condition of issuance of a permit,
although this
prohibition is modified by Section 22.3 as
it relates
to hazardous
waste disposal sites.
Absent legislative authorization, the
County cannot accomplish what the Agency is prohibited from doing.
(The Board also notes that the Agency could hardly enforce this
condition if Condition X were to have been upheld.)
Additionally,
the record does not explain or support choices as to the amount
and the period of time included in the requirement, and provides
for no standards to govern the “payment to a person authorized by
Lake County to determine and execute the remedies necessary”.
This Opinion constitutes the findings of fact and conclusions
of law of the Board
in this matter.
ORDER
Upon review of the July 13,
1982 decision of the County of
Lake conditionally approving site location suitability of Browning
Ferris Industries of Illinois, Site
#2,
it is the Order of the
Pollution Control Board that:
1.
Special Conditions
G,
I sentence #1,
and N clause #1
are affirmed.
2.
Special Conditions
C,
E,
I sentence
#2,
K,
M, N clause
#2,
P,
0,
S1
T,
V,
W,
X and the proviso in the unnumbered paragraph
on page
8 are stricken.
3.
Special Condition H is to be amended by deleting the
words “may require”
and replacing them with the words “to
recommend”.
Board Chairman J. Dumelle dissented.
1, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
were adopted o~the
~
day of
~
,
1982
by a vote of
‘I-i
Illinois Polluti
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