ILLINOIS POLLUTION CONTROL BOARD
February 3, 1994
WILMER BROCKMAN, JR. AND
FIRST MIDWEST BANK OF JOLIET
)
AS TRUSTEE UNDER TRUST NO. 757,
)
)
Petitioners,
)
v.
)
PCB 93—162
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
FRED PRILLAM1~.N, OF MOHAN, ALEWELT, PRILLAMAN & ADANI, APPEARED ON
BEHALF OF THE PETITIONERS;
RICHARD WARRINGTON
AND JOHN BURDS APPEARED ON BEHALF OF
RESPONDENT;
JOAN BERNABEI APPEARED ON BEHALF OF BENYA, IRNIS, BENYA AND
BERNABEI;
GEORGE MUELLER APPEARED ON BEHALF OF RESIDENTS AGAINST A POLLUTED
ENVIRONMENT;
ROBERT ESCHENBACH APPEARED AS ASSISTANT STATE’S ATTORNEY FOR
LASALLE COUNTY.
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
On September 1, 1993, Wilmer Brockinan, Jr., and First
Midwest Bank of Joliet as Trustee under Trust No. 757 (Brockinan
or petitioners) filed a petition for review and reversal of the
denial by the Illinois Environmental Protection Agency (Agency)
of Brockinan’s permit application to temporarily suspend waste
acceptance at Brockinan’s site in LaSalle County, Illinois. On
December 2, 1993, the Board denied the Agency’s motion for
summary judgeiuent, which the Agency filed on November 24, 1993.
Hearing was held on December 6, 1993, in Ottawa, LaSalle County,
Illinois, with members of the public in attendance.
On December 22, 1993, a motion for leave to file amicus
brief was filed by Residents Against a Polluted Environment
(R.A.P.E.). The motion was granted by the Board on January 6,
1994. On December 23, 1993, the petitioners’ brief was filed.
Respondent’s Brief was filed on January 4, 1994, accompanied by a
motion to strike petitioners’ brief. Brockman filed petitioners’
reply brief and opposition to motion to strike petitioners’ brief
on January 5, 1994. The motion to strike petitioners’ brief is
hereby denied. On January. 12, 1994, petitioners filed
petitioners’ reply to amicus brief.
2
The Board’s responsibility in this matter arises from
Section 40 of the Environmental Protection Act (Act). (415 ILCS
5/40 (1992).) The Board is charged, by the Act, with a broad
range of adjudicatory duties. Among these is adjudication of
contested decisions made pursuant to the permit process. More
generally, the Board’s functions are based on the series of
checks and balances integral to Illinois’ environmental system:
the Board has responsibility for rulemaking and principal
adjudicatory functions, while the Agency is responsible for
carrying out the principal administrative duties, inspections,
and permitting.
Based on review of the record, the Board upholds the
Agency’s denial of a permit to temporarily suspend waste
acceptance for the Brockmnan site.
REGULATORY FRAMEWORK
Petition for review of permit denial is authorized by
Section 40(a)(l) of the Act 415 ILCS 5/40 (a)(1) and 35 Ill.
Adm. Code Section 105.102(a). The Board has long held that in
permit appeals the burden of proof rests with the petitioners.
The petitioners bear the burden of proving that the application,
as submitted to the Agency, would not violate the Act or the
Board’s regulations. This standard of review was enunciated in
Browning—Ferris Industries of Illinois. Inc. v. Pollution Control
Board, 179 Ill. App. 3d 598, 534 N.E. 2d 616, (Second District
1989) and reiterated in John Sexton Contractors Company v.
Illinois (Sexton), PCB 88-139, February 23, 1989. In Sexton the
Board held:
...that the sole question before the Board is whether the
applicant proves that the application, as submitted to the
Agency, demonstrated that no violations of the Environmental
Protection Act would have occurred if the requested permit
had been issued.
Therefore, petitioners must establish to the Board that the
permit would not violate the Act or the Board’s rules if the
requested permit was to be issued by the Agency. In addition,
the Agency’s written response to the permit application frames
the issues on appeal from that decision. (Pulitzer Community
Newspaiers, Inc. v. Illinois Environmental Protection Agency, PCB
90—142, at 6 (December 20, 1990); Centralia Environmental
Services. Inc. v. Illinois Environmental Protection A~encv, PCB
89—170, at 6 (May 10, 1990); City of Metropolis
V.
Illinois
Environmental Protection Agency, PCB 90-8 (February 22, 1990).
There are essentially two issues in this case. The first
issue is the sufficiency of the June 15, 1993, application (R. at
3
15—24)’ to temporarily suspend waste acceptance at the Brockman
site. The language of 35 Ill. Adm. Code 807.205(f) provides the
Agency with the authority to deem applications incomplete that
lack the information, documents, and authorizations required by
Board rules and Agency procedures. The second issue raised by
the Agency is that “Agency records for the Brockman #2 facility
indicate that this facility is closed pursuant to Ill. Adm. Code
807.318(c)”. (Rec. Vol. III at 670—671.)
BACKGROUND
The subject property is located west of the village of
Naplate, LaSalle County, Illinois. The site is referred to as
the Brockman II Landfill by petitioners (Pet. at 1) or Brockntan
II, Pioneer Processing, or the Carus Disposal Area by the
respondent. (Res. Br. at 2.) For the purposes of this permit
denial review, the Board will refer to the subject property as
the “Brockman site” or “site”.
The Brockman site consists of approximately 177 acres owned
by First Midwest Bank of Joliet, Trust No. 757. (Pet. at 1.)
Brockman was originally granted development permit number 1975—
23-DE by the Agency on March 14, 1975, to develop a solid waste
disposal site on the 177 acres. (R. Vol. I at 133.) Several
modifications to this development permit were allowed by the
Agency. The most litigated of these modifications was granted on
December 22, 1980, to Pioneer Development Company by supplemental
permit number 1980—1944 DE. (R. Vol. III at 527.) In the
ensuing litigation contesting that modification the permit was
declared void by the Illinois Supreme Court in Pioneer
Processing. Inc. et al. v. IEPA 102 Ill.2d 119, 464 N.E.2d 238
(1984). A reapplication was withdrawn on March 22, 1988, and
that withdrawal was confirmed by the Board by its order of April
27, 1989, in PCB 88—158. (R. Vol. I at 211—231.) The Brockinan
site only accepted special waste from the Carus Chemical Company
pursuant to operating permit number 75-2-OP issued July 9, 1976
(R. Vol. I at 152-153) and pursuant to a supplemental permit
number 76—686 issued November 29, 1976 (R. Vol. II at 154, Tr.
at 28.), and other supplemental permits. Waste was accepted only
from 1975 to 1982 from Carus. (Pet. Br. at 2; R. at 46-47 and
127.)
‘The Agency record will be cited as “R Vol.
—
at
_“;
the
petition for review of permit denial will be cited as “Pet, at
_“;
petitioners’ reply brief will be cited as “Pet. Br. at
_“;
respondent’s brief will be cited as “Res. Br. at
_“;
the amnicus
brief will be cited as “Am. Br. at
“;
the hearing transcript
will be cited as “Tr. at
4
DISCUSSION
ADplication Deficiencies
Board regulations provide for development permits at 35 Ill.
Adm. Code 807.201, for operating permits at 35 Ill. Adm. Code
807.202, and for experimental permits at 35 Ill. Adm. Code
807.203. Modifications to these three classes of permits may be
made by supplemental permits issued by the Agency pursuant to 35
Ill. Adm. Code 807.210. Board rules do not refer to permits to
temporarily suspend waste acceptance in Subpart B of Part 807.
Subpart B is a part of the Board’s waste disposal regulations
entitled “Solid Waste Permits”.
Board rules refer to “temporary suspension of waste
acceptance” at only 35 Ill. Adm. Code 807.503(c) (3),
807.504(b) (1), 807.506(c), 812.114(d) and 813.401. The Part 807
subsections are contained in Subpart E, which is entitled
“Closure and Post—Closure Care”. Part 812 is entitled
“Information to be Submitted in a Permit Application”. Part 813
is entitled “Procedural Requirements for Permitted Landfills”.
Section 807.503(c) (3) states in pertinent part:
c) The closure plan shall include as a minimum:
3) Steps necessary to prevent damage to the
environment during temporary suspension of waste
acceptance if the operator wants a permit which
would allow temporary suspension of waste
acceptance at the site without initiating final
closure;
Section 807.504 deals with amendments to closure plans and
provides that a revised closure plan must be filed unless the
modification is authorized by the permit. Modifications which
are included in the permit can include “a temporary suspension of
waste acceptance at the site”. (Section 807.504(b) (1).)
Section 807.506 is entitled, “Initiation of Closure”.
Subsection 807.506(c) states:
The owner must notify the Agency within 30 days after a
temporary suspension of waste acceptance. The operator must
comply with the requirements of any temporary suspension
plan in the permit.
Section 812.114 specifies minimum requirements for a closure
plan which must be included in the permit application. According
to Section 812.114(d), the closure plan must include:
5
d) Steps necessary to prevent damage to the environment
during temporary suspension of waste acceptance if the
operator wants a permit which would allow temporary
suspension of waste acceptance at the site without
initiating final closure;
Section 813.401(b) states:
The operator shall notify the Agency within 30 days
after any temporary suspension of waste acceptance.
The operator must comply with the requirements included
in a permitted closure plan in accordance with 35 Ill.
Adin. Code 812.114(d) that are applicable during any
such period.
In each use of “temporary suspension of waste acceptance”,
the regulations reference the written closure plan which is to be
a condition of the site permit. Plain reading of the Board
regulations governing solid waste permits shows that a permit to
temporarily suspend waste acceptance can only be properly issued
by the Agency in relation to a closure plan for the site. A
permit to temporarily suspend waste acceptance is not a stand-
alone permit.
Site Closure Issue
The briefs by both parties and the record show that Brockman
and the Agency have an ongoing argument about the status of the
Brockman site permits. The Agency maintains that the entire
Brockman site is closed. (Res. Br. at 5.) Brockman argues that
development permit number 1975-23-DE has never been revoked or
rescinded. (Pet. at 2.) Brockman maintains that “one unit was
closed in 1982, and that the entire site has been inactive in
accepting waste since that time, but active in other
administrative, legal, and internal avenues”. (Pet. Rep. Br. at
4.)
Brockman argues (Pet. Rep. Br. at 2) that the Agency’s sole
reason for permit denial is that the Brockman site is allegedly
closed. Brockman further argues that failure to specify a reason
for denial under Section 39 of the Act constitutes waiver of any
issues not so specified (Environmental Protection Agency v.
Pollution Control Board, 86 Ill. 2d 390, 406(1981). The Agency
maintains that the Brockman site is closed. The Agency also
argues that the Brockman application does not contain a closure
plan which is necessary to evaluate an application for a permit
to temporarily suspend waste acceptance. (Res. Br. at 5—7.)
In the instant case, the Board finds that the application
lacked sufficient information to allow the Agency to technically
review the permit. Therefpre, the application failed to comply
6
with the provisions of Section 807.205(f). As discussed
previously, the permit at issue is a narrow, specific permit that
is only a contingency in a closure plan and the record does not
include such a closure plan for this site. Because the Board has
found that the petition lacked sufficient information to allow
Agency review, there is no reason to examine further the
arguments by the parties concerning the viability of Brockman’s
permits or to discuss the issues regarding the contested closure
of the site.
CONCLUSION
The permit application (R. Vol. I at 15-24) at issue in this
appeal contains no more than a simple request to suspend
accepting waste. The application does not contain the necessary
preventative measures to delay initiation of closure, nor a
written closure plan to specify what needs to be done to properly
close the facility. The application clearly lacks the
information and documents necessary to process the application
and was properly denied. The Board finds that there is no
evidence in the record of a closure plan for the site which could
be used to evaluate the appropriateness of the instant permit
request. The Board’s regulations clearly show that the
appropriateness of a permit to temporarily suspend waste
acceptance can only be evaluated in the context of a closure plan
for a site. The Agency’s decision to deny the permit according
to Section 807.205(f) is supported in the instant case by the
nature of the permit requested and the record before the Board.
Therefore, the Board affirms the Agency denial of a permit to
temporarily suspend waste acceptance by the petitioners.
ORDER
The denial by the Illinois Environmental Protection Agency
of a permit for the temporary suspension of waste acceptance
requested by Wilmner Brockman is affirmed.
7
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision. The Rules of the Supreme Court
of Illinois establish filing requirements. (But see also, 35
Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify tha~the above opinion and order was
adopted on the
________________
day of
~
1994, by a vote of 7—.~)
.
~
,~L.
~Dorothy M. ,~mnn, Clerk
Illinois P~lution Control Board