ILLINOIS POLLUTION CONTROL BOARD
February 17,
1994
INDUSTRIAL SALVAGE INC. and
)
JOHN PRIOR,
)
)
Petitioner,
v.
)
PCB 93—60
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
INDUSTRIAL SALVAGE INC. and
)
JOHN PRIOR,
)
Petitioner,
v.
)
PCB 93-61
)
S
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
)
Respondent.
WILLIAM
BECKER
OF
HEYL,
ROYSTER,
VOELKER
&
ALLEN
APPEARED
ON
BEHALF
OF
PETITIONER;
TODD F. RETTIG
AND
JACK
BURDS APPEARED
ON
BEHALF
OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
On March 19, 1993 Industrial Salvage Inc. and John Prior
filed two petitions for review pursuant to Section 40 of the Act
which were consolidated by the Board for purposes of hearing’.
Docket PCB 93-60 is an appeal from an Illinois Environmental
Protection Agency (Agency) denial of petitioner’s re-application
for prior conduct certification.
Docket PCB 93-61
is an appeal
of an Agency denial of an application for supplemental operating
permit to operate Area IV of the Centralia Environmental Landfill
in Marion County Illinois and to revise the current cost estimate
for that facility.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged therein to adjudicate disputes arising out
of permit decisions made by the Agency.
(Act at Title X and
Section 40.)
More generally, the Board’s responsibility in this
March 25,
1993
2
matter
is based on the system of checks and balances integral to
Illinois environmental governance: the Board is charged with the
rulemaking and principal adjudicatory functions,
and the Agency
is responsible for carrying out the principal administrative
duties, including the issuance of permits.
In a review of a permit denial it is the burden of the
petitioner to prove that the application, as submitted to the
Agency, demonstrated that no violation of the Act or Board
regulations would occur if the permit was granted.
(e.g., Joliet
Sand & Gravel
v. Pollution Control Board
(3rd District 1987),
163
Ill. App. 3d 830, 516 N.E.2d 955,958.)
Similarly,
in review of a
prior conduct certification determination,
it is the petitioner’s
burden to prove that the application as submitted to the Agency
demonstrated that the petitioner is entitled to the
certification.
Completion of the application showing that none
of the reasons for denial exist is sufficient demonstration
absent information to the contrary.
(35 Ill. Adm. Code
745.141(c)).
Based upon review of the record, the Board affirms the
Agency’s denial of prior conduct certification and denial of the
application for operating permit.
PROCEDURAL HISTORY
On September 9,
1992 John Prior first applied to the Agency
for prior conduct certification as required by 35 Ill. Adm. Code
745.
The Agency denied John Prior’s first application on October
22,
1992 after considering previous adjudicated violations of the
Act and Board regulations found against John Prior.
This October
22,
1992 denial is not before this Board on review as John Prior
did not appeal this earlier denial.
On December 18,
1992 John
Prior re-applied for prior conduct certification.
The Agency
denied the re-application on February 10,
1993, and John Prior
brought this appeal of the February 10,
1993 Agency denial.
It is worth noting that neither the December 19,
1992 re-
application for certification nor the February 10,
1993 denial
letter are listed in the contents tables or have been found in
the Agency record in this matter.
At hearing, the Agency argues
that petitioner’s appeal of the October 22,
1992 certification
denial is not timely.
(Tr. at 11-14.)
However, petitioner did
not appeal the October 22,
1992 denial, but rather appealed the
February 10,
1993 denial of which
filing is timely.
A copy of
the February 10,
1993 Agency denial letter which references the
December 19,
1992 re—application was submitted by the petitioner
with its petition for review.
It is the Agency’s responsibility to file the complete
record that is before it, specifically including the application
and denial.
(See,
35
Ill.
Adm. Code 105.102
(a)(4).)
The filing
3
of a partial record places the Board in a difficult situation,
causing the Board to be faced with making its decision based upon
the incomplete record and pleadings as they stand.
However, no
motion to compel the filing of the missing documents has been
filed by petitioner.
As stated above, petitioner has the burden
to prove that its application as submitted to the Agency
demonstrates that the petitioner
is entitled to the
certification.
On December 31,
1992 John Prior also filed an application
for an operating permit for Area IV of the Centralia
Environmental Landfill.
On February 11, 1993 the Agency denied
the application for operating permit and John Prior appealed.
Hearing was held on this consolidated matter on August 25
and 26,
1993 before Hearing Officer V. Robert Matoesian,
in
Centralia,
Illinois.
Post-hearing briefs were filed on November
17,
1993 by the petitioner and on December 31,
1993 by the
respondent.
No reply brief was filed by petitioner.
FACILITY DESCRIPTION
AND
BACKGROUND
These petitions for review pertain to Area IV of the
Centralia Environmental Landfill site #121422003.
The site is
located near Centralia Illinois and is subject to existing
permits.
Area IV of the landfill is an integral part of the
entire landfill.
The design of this particular landfill is such
that each area of the landfill is dependent upon the development
of other areas for its performance.
That is, unlike other
landfills which may include operating areas which when completed
and filled are separate and distinct, Area IV will be part of one
large mound upon its fill to capacity.
(Tr. at 176.)
During the 1980’s, the Agenày
issued
devélôpment permit
#1984-3-DE and supplemental development permit 1987-194-SP for
this landfill.
Also, the Board has previously adjudicated an
appeal of a denial of supplemental development and operating
permits for
this
site.
(Centralia Environmental Services v. IEPA
(October 25,
1990), PCB 89—170, 115 PCB 389.)
In that matter,
the Board affirmed the Agency’s denial of the supplemental
permits, but found that some of the denial reasons given by the
Agency were insufficient bases for permit denial.
(Id. at 20,
408.)
The September 9,
1992 application for prior conduct
certification lists John Prior as the president of Industrial
Salvage,
Inc.
(Rec. Vol.
IV at
932.)
The September 9,
1992 and
2
The record was filed
in seven separate volumes and will be
cited as “Rec. Vol.
at
.“
4
December 31,
1992 operating permit applications indicate that
John Prior is an owner of Industrial Salvage,
Inc.
(Rec. Vol. V
at 82; Rec. Vol. IV at 54.)
Mr. Prior does not contest that he
is the present owner or operator of the site.
REGULATORY FRAMEWORK
The Board adopted the prior conduct certification rules on
September 4,
1987.
(In re Prior Conduct Certification for Waste
Disposal Site Personnel:
35 Ill.
Adiu.
Code 745 (Sept.
4,
1987),
R81-18.
The rules were adopted pursuant to Section 22.5 of the
Act which allows for denial of certification based on whether an
operator, employee or officer of the operator, among other
things, has a history of violations of laws governing waste
disposal.
The regulations in pertinent part provide that the Agency
shall deny prior conduct certification to any person who has:
1)
Been repeatedly found, after opportunity for
an adversarial proceeding before any judicial
or administrative body, to be in violation of
any federal, state or local laws,
regulations
or ordinances governing the operation of
waste disposal sites in any state;
*
*
*
4)
Practiced any fraud or deceit in obtaining or
attempting to obtain prior conduct
certification; or
*
*
*
(35 Ill.
Adin. Code 745.141(a).
The rules also afford consideration by the Agency of
mitigating factors such that the certification may issue:
1)
The severity of the misconduct;
2)
How recently the misconduct took place;
3)
The degree of control exerted over waste
disposal operations at a site by the
applicant at the time misconduct described in
subsection
(a) (3) was committed.
(35 Ill.
Adin. Code 745.141(b).)
Part 745 also includes relevant definitions:
“Chief Operator” means the one natural person
in responsible charge of a waste disposal
5
site on a 24-hour basis.
“Chief Operator”
also means any person who may from time to
time and in the regular course of business be
designated by a waste disposal site’s chief
operator to assume the functions of chief
operator during periods of vacation,
accident, illness or the like.
“Owner” means the person who owns a waste
disposal site or part of a waste disposal
site, or who owns the land on which the site
is located.
A person is in “responsible charge” if the person:
Is normally present at a waste
disposal site;
Directs the day-to-day,
overall
operation at the site; and
Either
is the owner or operator, or
is employed by or under contract
with the owner or operator to
assure that the day-to-day
operations at the site are carried
out in compliance with 35 Ill.
Adm.
Code 724,
725,
730, 807 and other
Board rules governing operations at
waste disposal sites.
(35 Ill.
Adm. Code 745.102.)
Section 807.207(a) prohibits the Agency from issuing solid
waste permits if a violation of the Act or regulations would
occur.
At Section 745.201(a)
it is prohibited for any person to
operate a waste disposal site unless the chief operator has prior
conduct certification.
In addition, at Section 745.201(b) no
site owner shall cause or allow the operation of a waste disposal
site unless the site operator has prior conduct certification3.
Therefore, the threshold issue is whether petitioner has
demonstrated that his application before the Agency entitled him
to a prior conduct certification.
Without such a showing, the
application for the operating permit,
in this case a supplemental
operating permit,
is deficient,
and the permit must be denied or
~Although there are other prohibitions that may apply to
John Prior in this instance, the Agency’s reasons for denial of
the supplemental permit only refer to violations of subsections
(a) and
(b).
We will limit our review of the permit denial to
those subsections.
6
else there would follow a violation of the Act or Board
regulations.
We now turn to review of the Agency’s denial of
prior conduct certification and consequent denial of the
operating permit on that basis.
PRIOR CONDUCT CERTIFICATION
The Agency’s February 10,
1993 denial letter lists specific
reasons for denial of prior conduct certification under Section
745.142 as follows:
1.
You have been repeatedly found to be in violation of
federal,
state or local laws, regulations or ordinances
governing the operation of waste disposal sites as
evidenced by the following:
a)
On September 4,
1975, in IEPA v. John
Prior, PCB 75-184 the Illinois Pollution
Control
Board
(“Board”)
found
you
in
violation of Section 21(e)
of the
Illinois Environmental Protection Act
and Rules 201 and 202(a)
of Chapter
7:
Solid Waste, of the Pollution Control
Board Rules and Regulations
(now
codified as 35 Ill. Adm. Code 807.201
and 807.202).
Therefore, you were
ordered to pay a fine of $100.00.
b)
On August
5, 1986,
in People of the State of
Illinois
v. John Prior
d/b/p
Industrial
Salvage,
Inc.. 85-CH-17
(Marion County)4 the
court found you in violation of Section 21 of
the Illinois Environmental Protection Act and
35 Ill. Adm. Code 807.301 and 807.305(a).
Therefore, you were ordered to pay a fine of
$12,000.00.
c)
On May 28,
1987,. in Theresa Castellari. et
al.
v. John Prior, PCB 86-79 the Board found
you in violation of Section 21(d)
of the
Illinois Environmental Protection Act and 35
Ill.
Adm. Code 807.304,
807.305(a), 807.306,
807.311,
807.313, 807.314(c), 807.314(e)
and
807.314(f).
Therefore, you were ordered to
pay a fine of $10,000.00
~While
the other cited Board opinions are readily
available, neither party presented a copy of this chancery case.
However, its validity and existence were not questioned.
(See,
Tr.
140—148.)
7
2.
You have practiced fraud or deceit in attempting to
obtain prior conduct certification by answering “no” to
question Number 1 in Part II of a previous application
received by the Agency on September 9,
1992.
Question
Number
1 in Part II states:
1)
Have you ever violated any federal,
state, or local laws,
regulations
or ordinances governing the
operation of any waste disposal
site.
Consistent with the denial letter cited above,
the Agency in
this appeal alleges that it properly denied prior conduct
certification to John Prior because it found that John Prior has
repeatedly been found in violation of the Act and Board
regulations.
John Prior argues that he was not given procedural due
process by not being afforded the right to notice and hearing or
an opportunity to rebut the allegations of the violations before
denial of the prior conduct certification.
Prior alleges that he
was not the operator of the landfill between July 1,
1985 and
1992 and testified that any violations were the responsibility of
others.
(Tr. 140-145, Pet.
EXhS.
13, 14.)
Pertaining to the
proceedings cited by the Agency in its denial letter, Prior
admits that while there may have been adjudication, others were
paying the penalties imposed upon Prior.
Prior argues that the
1975 finding of violation is de minimis, implying that it should
not be considered by the Agency.
Prior lastly alleges that the
Agency acted arbitrarily and capriciously in denying the
certification.
The Board finds that petitioner was afforded due process
since he had the opportunity to appeal to this Board both the
past enforcement decisions rendered by the Board and the October
22, 1993 Agency denial of prior conduct certification, as well as
the instant action.
Petitioner was also allowed opportunity to
and in fact did reapply for prior conduct certification.
In
addition, the petitioner was notified that his past violations
were being considered by the Agency during the pendency of the
related permit application review.
(Rec.
Vol. V at 17.)
Petitioner responded to that letter in writing by denying that
the violations occurred.
(Rec. Vol. V at 20.)
Petitioner is attempting to again litigate the findings of
violations of those matters previously adjudicated and cited by
the Agency in its denial letter.
Prior had opportunity to
properly appeal those findings of violations at the time they
were rendered.
Petitioner does not contest that the findings of
violations specified in the Agency’s denial letter were made
against him.
(Tr.
at 146—148.)
John Prior’s claim of others
8
being responsible for the adjudicated violations does not rise to
a showing that the courts or this Board did not render findings
of violation against John Prior.
The Board further notes that
the issue of ownership and responsible parties was extensively
addressed by the Board in Theresa Castellari.
et al.
v. John
Prior
(May 28,
1987), PCB 86-79,
78 PCB 132
(See especially pp.
2—12).
In that enforcement case, the Board further addressed the
extent of Prior’s violations:
The extent of Prior’s non—compliance with the laws and
regulations of the State concerning the Landfills’
operations was considerable.
The great number of
observed violations indicates an almost constant
interference with the interests that those regulations
are designed to protect.
The illegal activities of the
Landfills created extensive pollution that at times
extended beyond the boundaries of the Landfill.
In
addition, the failure to apply daily cover to the
Landfills created a health risk which was exacerbated
by the lack of control over vectors.
Prior’s general
disregard for operational requirements of the Board
undermines the Board’s role in protecting the
environment of the State.
(Id. at 31.)
Furthermore, although petitioner argues that one of the past
findings of violation is de minimis, that argument does not rise
to a showing that mitigating factors exist which the Agency
should have considered as allowed by Section 745.141(b).
Petitioner’s witness’ testimony that he has not known the Agency
to have previously invoked the prior conduct certification
regulations against others
(Tr. at 71-84)
and petitioners’
allegations of bias
(Pet.
Br. at 13, Pet.
Exh.
55)
do not prove
arbitrary or capricious action by the Agency.
Upon reviewing the record and considering the pleadings, the
Board finds that the Agency could reasonably deny prior conduct
certification to John Prior based on repeated findings of
violations of State law as specified in the denial letter.
The
Board therefore upholds the Agency’s denial of prior conduct
certification to John Prior.
PERMIT DENIAL
The February 11,
1993 Agency letter denying the application
for operating permit states that the operator’s lack of prior
conduct certification would result in violation of 35 Ill.
Adm.
Code 745.201(a)
and
(b),
if the operating permit were issued.
~ The testimony from a previous proceeding cited here by
petitioner was excluded as hearsay in that proceeding.
9
(See denial reasons
3 and 4 of the February 11,
1993 denial
letter, Rec.
Vol. V at 3-4.)
Consistent with its denial letter,
the Agency alleges in this appeal that because John Prior has no
prior conduct certification, the Agency properly denied the
application for permit as it would be a violation of the
regulations to grant a permit to an owner or operator without
that owner or operator obtaining prior conduct certification.
The Board upholds the Agency’s denial of an operating permit
for Area IV of the Centralia Environmental Landfill based on the
fact that the operator has not obtained prior conduct
certification.
The Agency’s reason for denial is correct;
issuance of the permit would violate 35 Ill. Ada. Code 745.201(a)
and
(b).
Lastly, because the Board has found the denial of the
operating permit based on the lack of prior conduct certification
is sufficient, there is no reason to examine the further
arguments made by the parties concerning the viability of the
operating permit.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Illinois Environmental Protection Agency’s February 10,
1993 denial of prior conduct certification to John Prior is
hereby affirmed.
The Illinois Environmental Protection Agency’s February 11,
1993 denial of operating permit to Industrial Salvage, Inc.,
and
John Prior is hereby affirmed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill. Adm. Code 101.246, Motions for Reconsideration)
I Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a o e opinion and order was
adopted on the
//~
day of
___________________,
1994, by a
vote of
_______
~SS~7~•
~
Dorothy M. ,~&nn,Clerk
Illinois Pdflution Control Board
