ILLINOIS POLLUTION CONTROL
BOARD
May 18,
1995
J.
ROBERT D. LARSON, GEORGE ARNOLD,
JIM BENSEN, MADISON COUNTY
CONSERVATION
ALLIANCE
and
flASA
PALISADES
GROUP
OF
THE
SIERRA
CLUB,)
Complainants,
PCB 95—1
(Enforcement
-
Land)
WASTE MANAGEMENT OF ILLINOIS,
INC.,)
Respondent.
ORDER OF THE BOARD
(by
E.
Dunham):
On January
4,
1995,
Penny Snyder,
George 3.
Moran, Robert
D.
Larson,
George Arnold, Jim Bensen, Madison County Conservation
Alliance and Piasa Palisades Group of the Sierra Club (Citizens)
filed
a citizen’s enforcement complaint against Waste Management
of Illinois,
Inc.
(WMII)
for the operation of its landfill, known
as the Chain-of--Rocks landfill,
located on Chouteau
Island in
the
Mississippi River in Madison County illinois.
The
amended their complaint on January
31,
1995.
This matter is
before
the Board today pursuant to section 31(a) (2)
and the Board’s procedural rule at 35
Ill. Adm.
103.124(a).
Board’s procedural rules require a determination to be made as to
whether a citizen’s complaint is frivolous or duplicitous.
Additionally, the Board will rule on notions to dismiss the
complaint and amended complaint filed by WMII.
Specifically the Citizens allege that WMII’s landfill
expansion, which received permitting by the Illinois
Environmental Protection Agency
(Agency)
in Supplemental Permit
violates section 39.2
of the Environnental
Protection Act
(Act)
because
WMII
never received local siting
approval from Madison County.
(Amend.
Comp.
at ~—3.)’
(415 ILCS
5/39.2
(1993).)
expansion would go beyond the current
waste
mound,
and such
expansion requires local siting pursuant to Section 39.2 of the
Act.
(Amend. Comp.
at 2—5.)
Additionally,
in the amended
complaint,
the citizens allege
“.
.
that Waste Management will
cause or threaten to cause pollution of the ground waters of the
area and pollution to the Mississippi River if its plan of
expansion of the Chain of Rocks Landfill goes into
‘The Citizens’ amended complaint will be referenced as
PENNY SNYDER,
GEORGE
MORAN,
Citizens
of the Act
The
No.
1994—089—SP,
According to the complaint, the proposed
effect.’
“Amend.
Comp.
at
2
(Amend.
Camp.
at 6.)
In support of this allegation the Citizens
cite to an Agency Press Release dated November
15,
1994,
from the
director, Mary A.
Gade,
that states the Agency’s concerns about
the location of the landfill, and to Exhibit #6 of the amended
complaint concerning the probability of water exceeding the 25—
year protective levees at the site.
(Amend. Comp.
at 6.)
The
Citizens,
however,
do not specify any provisions of the Act or
Board regulations that are being violated as the result of the
alleged water pollution.
The Citizens further state that, while
Inc.
v. The Pollution Control Board,
25 Ill.Dec.
387 N.E.2d 258, does not allow the Board to
the actions of the Agency,
Landfill does allow for citizens to
file a complaint against anyone
“..
.violating the Bnvironmental
Protection Act even though the alleged polluter has received a
permit from the Agency.”
(Amend.
Comp.
at 1.)2
18,
1995 and again on February
filed motions to dismiss the Citizens’
complaint and amended
amended complaint are frivolous and duplicitous.
WMII argues
that this matter should be dismissed because, taking the facts
alleged as true,
it
is not operating in violation of Section 39.2
of the Act and that the Citizens’ mere assertion that the
location of the landfill is unlawful, without further evidentiary
showing of which sections of the Act or Board regulations are
being violated, makes this amended complaint frivolous.
2.)~ In addition,
WMII argues that the Board’s Inquiry Hearing
(Docketed as R94-34)
concerning landfill facilities located in
the 100—year floodplain causes this action to be duplicitous.
(Mat.
at
2—3.)
For these reasons, WMII requests
dismiss the complaint with prejudice.
On May
1,
1995 the citizens filed an answer to WMII’s motion
to dismiss.
not be considered by the Board because the Act does not
contemplate WNII’s motion to dismiss and the use of the Civil
Practice
right
to
_______________
Illinois Pollution Control Board,
16 Ill.App.3d
21n addition to the specified allegations above the
Citizens’
also allege that the Agency’s order violated Sections
3.32(B)
and
3.88
of the Act.
(415 ILCS 5/3.32 and 5/3.88
(1992).)
It
is unclear as to whether the Citizens’
are claiming
that WMII
is violating those sections,
however, both sections are
definitions and do not create any requirement that can be
violated and,
secondly, the Agency
is not a party to this action.
For these reasons the Board will not entertain such allegations.
3WMII February
Landfill.
74
Ill.2d
541,
On January
602,
review
complaint.
In both motions,
WMII
claims that
10,
1995
WHIX
the complaint and
(Mat.
at
the
Board
to
The Citizens argue that the motion to dismiss should
Act.
Further, the Citizens argue that they have the
file an enforcement action,
citing to Mystik Tans v.
778,
304
N.E.2d
as
“Mot.
at
10,
1995
motion
to
dismiss
will
be
referenced
3
574, and that pursuant to M.I.G.
Investments.
Inc v.
IEPA,
Ill.Dec.
533,
523 N.E.2d
1,
there
is
a
landfill
expansion
occurring which requires WHIZ to receive local siting in order to
be Lawfully issued
the
supplemental permit by the Agency.
Finally, the Citizens argue that there is water and groundwater
pollution in violation of State law.
On May
2,
1995, pursuant to 35
Ill. Adm. Code 101.243(a),
objection to the motion.
The Board’s procedural rule
at
allows for
a respondent
to dismiss within fourteen
complaint.
The complainant has
respondent’ s
there is no right for
a reply from the respondent.
Pursuant to
103.140(c),
the Citizens were to have responded
by February
24,
1995.
The Citizens’
answer
(response) was filed
May
1,
1995,
approximately eighty
(80)
days after the filing of
the motion to dismiss.
WMII filed
a response to the answer on
May
2,
1995, however,
it did not request
leave of the Board to do
so.
Neither the Citizens’ answer nor WH1I’s response are
properly before the Board.
Notwithstanding, the Board will allow
and consider both filings.
For the reasons stated below,
of violation of Section 39.2
frivolous,
grants WMII’s motion to dismiss
other counts
of the complaint for being insufficiently plead.
REGULATORY
BACKGROUND
As stated previously, pursuant to Section 3l(a)(2)
of the
Act and the Board’s procedural rules the Board must make
a
determination as to whether a citizen’s enforcement complaint is
119
motions.
WHIZ
filed a motion to strike the Citizens’
answer to its motion
to
dismiss
for
untimeliness.
WHII
argues
that,
pursuant
to
the
Board’s
general
procedural rules at 35
Ill.
AWn. Code 101.241(b)
and
the
Board’s
enforcement
procedural
rule
set
forth
at
35
Ill.
Adn.
code
103.140Cc),
there
is a seven
(7) day
response time to
motions within
WMII
additionally argues that
the seven
(7)
days can be deemed as waiving
failure
to
respond
to
the
Pursuant to the Act’s general grant of authority for the
Board to adopt regulations in section
5 and the specific
authority to adopt procedural rules set forth in section 26 of
the Act,
the Board has adopted procedural regulations which are
to be followed by all persons practicing before the Board.
The
Board,
if
it
so chooses,
can waive
a procedural requirement on
its own motion or
a motion of a party practicing before the
Board.
These are the only situations where
a Board procedural
rule would not apply.
35
Ill.
AWn Code 103.140(a)
in
an
enforcement
action
to
file
a
motion
35
Ill.
Adm.
Code
motion
to
dismiss
pursuant
to
Section
(14)
days
of
the
receipt
of
the
seven
(7)
days to respond to a
103.140(c);
Board finds the allegation
the
and dismisses the
frivolous
or
duplicitous.
(415
ILCS
5/31(b)
(1992).)
Section
4
103.124(a)
of the Board’s procedural rules,
which implements
Section
31(b)
of the Act, provides:
complaint
is filed by
a person other than the
Agency,
the Clerk shall also send a copy to the Agency; the
Chairman shall place the matter on the Board agenda
for
Board determination whether the complaint
is duplicitous or
frivolous.
If the Board rules that the complaint is
duplicitous or frivolous,
it shall enter an order setting
forth
its reasons for so ruling and shall notify the parties
of its decision.
If the Board rules
that the complaint
not duplicitous or frivolous, this does not preclude the
filing of
motions
regarding
the
insufficiency
of the
pleadings.
(35 Ill. AWn.
Code 103.124.)
An action before the Board
is duplicitous
if the matter
is
identical or substantially similar to one brought in another
forum.
(Brandle
V. Ropp, PCB 85—68,
64 PCB
263
(1985).)
action before the Board is frivolous
if it fails to state
a cause
of action upon which relief can be granted by the Board.
for a Better Environment
73—173,
8 PCB 46
(1973).)
DISCUSSION
The
Board
will
consider
WMII’s
motion
to
dismiss,
finding
that
it
is timely filed.
Pursuant to 35
Ill. AWn. Code
103.140(a)
a respondent may file within fourteen
(14)
days
of
receipt
of
a
complaint
a
motion
to
dismiss.
In
this
case
WHIl
met the requirement by filing
its motion to dismiss on February
10,
1995 and therefore is properly before the Board.
Regarding those portions of the amended complaint alleging
that
WHII’s
proposed
pollution,
the
Citizens
failed
to
make
references
to
the
provision
of the Act and/or Board regulations which
the
respondent
is allegedly violating.
The Board’s procedural rule
at 35
Ill. AWn. Code 103.122(c) (1)
states that the formal
complaint shall contain “~a
reference to the provision of the
Act
and
regulations
which
the
respondents
are
alleged
to
be
violating.”
Therefore,
as to that claim,
the Board dismisses
amended
complaint
and
therefore
need
not
make
a
frivolous
and
duplicitous
determination
as
to
the
alleged
water
pollution.4
The Board, however, will make a determination as to whether
the amended complaint is frivolous or duplicitous concerning the
4The Board’s dismissal of the allegations that
WtlII
is
causing or threatening to cause groundwater
or water pollution
today does not prohibit a future filing that meets the
...
If
a
is
(Citizens
An
V.
Reynolds Metals
CO.,
PCB
expansion causes or threatens to cause water
the
requirements of
35
Ill.
AWn.
Code
Part
103.
5
Citizens’ allegation of
a violation of Section 39.2
of the Act.
Regarding whether the complaint is duplicitous as stated above,
citizen’s enforcement action
is
or substantially similar
WMII argues that the matter is
duplicitous because the Board has initiated an inquiry hearing
docketed as R94—34 to address the issue of location of
a landfill
in
a floodplaini
The Board disagrees with WT’III’s conclusion.
The Citizens’ amended complaint
is not duplicative of another
enforcement action pending before the Board.
The pendency of an
inquiry hearing before the Board wherein a facility’s operations
are not directly at issue,
does not create
a shield against
enforcement for that facility.
Finally, there is
no
evidence
that the matter is identical or substantially similar to one
brought
in another forum.
Therefore, the Board finds that the
remaining alleged violation of Section 39.2 of the Act is not
duplicitous.
Nonetheless, while the complaint
is not duplicitous,
argues that the portion of the complaint which alleges a
violation for failure to obtain siting approval pursuant to
section 39.2 of the Act should be dismissed on the basis that
siting
is not required and therefore the complaint
is frivolous
We agree with WMII and therefore find that the complaint fails
state facts upon which relief can be granted.
Illinois’ siting
law,
sometimes known as SB—172, provides
for local approval for the siting of all pollution control
facilities,
and expansions thereof,
in the State
of Illinois.
sections 3.32,
39(c),
39.2 and 40.1 of the Act, the
siting law provides that before
a permit to develop or construct
a “new pollution control facility” can be issued by the Agency,
a
County board or municipal government must first approve the
siting request for each new pollution control facility.
5/39(c)
(1993)
•y6
Specifically, Section
permit for the development or construction of
a new regional
5The Agency formally requested the Board on December
4,
1994,
to hold an inquiry hearing concerning the Board’s
regulations on landfills and transfer stations
located in
floodplains.
The Board granted the request by order of
14,
1994 and will
a public bearing in June of
1995.
case, the inquiry hearing will address the issue of any public
health or environmental impact resulting from hazardous or
nonhazardous landfills being located
in Illinois’
100—year
floodplains.
6The legislature
in PA.
88—681,
which became effective
Decelftber
22,
1994,
removed the word “regional”
in reference to
the Board has determined that a
duplicitous
if the matter
is identical
to one brought in another
foruja.
WNII
Codified at
to
39(c)
states
“...
no
(415
ILCS
December
In
this
pollution
control
facilities.
6
pollution control facility may be granted by the Agency unless
the applicant submits proof to the Agency that the location of
said facility has been approved by the County Board of the county
if in an unincorporated area,
or the governing body of the
municipality when in an
incorporated area,
in which the facility
is to be located
in accordance with section 39.2 of this Act.”
Additionally, Section
39(c)
sets forth an exemption to the
requirement of demonstrating to the Agency that the applicant has
received local
siting.
The language of section
39(c)
states:
In the case
of a regional pollution control facility
for which a development permit was issued before
November 12,
1981,
if
an operating permit
has
not
been
issued by the Agency prior to
portion of the facility, then the Agency may not issue
or renew any development permit nor issue an original
operating permit for any portion of such facility
unless the applicant has submitted proof to the Agency
that the location of the facility has been approved by
the appropriate county board or municipal governing
body pursuant to section 39.2 of this Act.
Therefore
in order to receive a development or construction
permit, the applicant must demonstrate to the Agency that
it
either has received local siting or falls within the exemption.
The Agency then determines
if the applicant has met the
requirement or meets the exemption,
and issues the permit.
Thus
local siting is not necessarily required tar all pollution
control
facilities.
In this case
WMII
claims that its landfill meets the
requirements of an exemption contained in Section 39 (c)
of the
Act and that its landfill expansion
is not
a new pollution
control facility
as defined by Section
3.32
of the Act.
ILCS 5/3.32
(1992).)
A new pollution control facility is defined
the Act at section 3.32 as follows:
(b)
A new pollution control facility is:
(1)
a pollution control facility initially permitted
for development or construction after July
1,
1981;
or
(2)
the area
of expansion beyond the boundary of a
currently permitted pollution control facility; or
(3)
a permitted pollution control facility requesting
approval to store, dispose of, transfer
or incinerate,
for the first time,
any special or hazardous waste.
(415 ILCS 5/3.32
(1992).~
The Appellate Courts have determined that facilities initially
August 31,
1989 for any
by
(415
permitted
prior
to
1981
are
not
required
to
receive
local
siting
7
approval prior
to issuance of
a permit.
(See Village of Hillside
v. John Sexton Sand and Gravel corporation,
(1982)
105 Ill.App.3d
533,
61
Ill.
Dec.
229,
434 N.E.2d 382 and American Fly Ash
Company v.
County
of Tpzwell,
(1983),
120 Ill. App.3d 57,
75
N.E.2d 1069.)
WMII states that the landfill
was
originally
permitted
in
1972
by
the
Agency
and
that
Supplemental
Permit
No.
1994—089-SF
is
not
expanding
the
operations of
the
landfill
beyond
the
boundaries
of the
originally permitted facility.
The Agency’s supplemental permit
which was attached to the Citizen’s amended complaint as Exhibit
#7 states on page
3,
“~except
as modified
in the above
documents,
the site shall be developed and operated in accordance
with
the terms and
conditions
of Permit
No.
1972—63—DR/OP
and
1991-095—Si’ dated September 1972 and August 24,
1992 and with
other permits issued for this site.”
WMII motion to dismiss
includes
a facility map which describes the new portion of
landfill which the supplemental permit was issued so that
WMII
can
begin
operation
in
compliance
with
Section
21(t)
of
the
Act
and
35
Ill.
Adm.
Code
814.109(e).
The
Citizens
utilized
the
same
map
as
Wbfll
in
its
answer
to
the
motion to dismiss to demonstrate where flooding occurred and how
the expansion will be effected.
The portion of the landfill for
which
WMII
received
a
supplemental
operating
permit
for
does
not
go
beyond
the
boundaries
of
the
already
permitted
landfill
as
described by Permit No.
1972—63—DE/OP.
The fact that
been termed
a “lateral expansion” pursuant to 35
Ill.
Ada.
Code
Part 814 does not necessarily make
it
a new pollution control
facility which would require local siting prior to te issuance
of
a permit pursuant to section 39(c)
of the Act.
The Citizens argue that the planned expansion must be
presumed to be beyond the originally permitted boundaries because
the “...application for the expansion did not contain a legal
description or any description describing where the boundaries of
the previously permitted landfill were.”
The Citizens cite to
Waste Management of Illinois.
Inc.
V.
Illinois Environniental
(July
21,
1994)
that it
is an expansion because
it is expanding beyond the waste
footprint.
The Citizens,
however,
are misapplying the Board’s
in that case.
The Board’s determination was that the
waste footprint is not the sole factor
in determining that there
was an expansion which required local siting.
In fact,
the Board
goes on to find that there was no expansion and states that
“...had Christian County established a waste ‘footprint’
in its
resolutions, any proposed extension would almost certainly
require an additional siting approval.”
In that case the Board
determined that the waste footprint can limit the area of the
landfill that is being utilized if such waste footprint is
established by the local unit of government.
The original permit
in this case has not established a waste “footprint” and
therefore
in determining whether an expansion is occurring,
the
Ill.Dec.
627,
457
(415 ILCS 5/21(t)
(1992).)
this
has
Protection Agency,
findings
PCB 94—153, and also claim
Board cannot loDk to a waste “footprint” for guidance.
The area
8
site.
Since
the
area
that
not beyond the originally
expansion.
For
the
reasons
stated
above,
we find that the remaining
alleged violation in this matter is frivolous.
This matter
is
IT
IS SO ORDERED.
I,
Dorothy
M.
Cunfl, Clerk of the Illinois
certify that the
violation
of the landfill for which WMII has received a supplemental permit
lies within the boundaries of the originally permitted landfill
received the supplemental permit is
permitted boundaries,
there is no
Accordingly,
in the instant
case,
WMII
is not
a new
pollution control facility because the area of expansion is
beyond the original boundaries that were permitted prior to 1981,
and WMII is not requesting approval to store,
dispose of,
transfer
or incinerate,
for the first time, any special or
hazardous waste.
Based on the evidence
in the record, the Board
finds that the proposed
expansion for
which WNII received a
development permit
is for an area of the landfill which was
in 1972 by Permit No.
1972—63—DE/OP.
Since WMII
is
operating under a permit which was issued prior to 1981,
and the
permitted
not
expansion
is
not
considered
a
new
pollution
control
facility,
Board grants
WMII’s
motion to dismiss with prejudice.
dismissed with prejudice
Section 39.2 of the Act,
the
as to the allegation of a
and the docket is closed.
of
Board,~hereby
____
of
1995,
by
above order was adopted on the
Pollution
Control
a Vote ot
Dorothy
~.
Illinois
P
Clerk
ion Control Board
