ILLINOIS POLLUTION CONTROL BOARD
March 17, 1994
CITY OF
HERRIN,
)
)
Petitioner,
)
v.
)
PCB 93—195
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
STEVEN
HEDINGER, OF
MOHAN, ALEWELT, PRILLAMAN &
ADANI, APPEARED
ON BEHALF OF THE PETITIONERS;
RICHARD WARRINGTON APPEARED
ON
BEHALF OF
RESPONDENT.
OPINION
AND ORDER OF THE BOARD (by G. T. Girard):
On October 21, 1993, the Herrin Municipal Landfill (Herrin)
filed a petition for review and reversal of the denial by the
Illinois Environmental Protection Agency (Agency) of Herrin’s
application for permit modification for Herrin’s site in
Williamson County, Illinois. On December 17, 1993, a hearing was
held in this matter in Marion, Williamson County, Illinois.
Members of the public attended the hearing. Petitioner filed its
briefs on January 18 and February 8, 1994. The Agency filed its
brief on January 31, 1994.
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 affirms the
Agency’s denial of the City of Herrin’s application for permit
modification.
REGULATORY FRAMEWORK
Petition for review of permit denial is authorized by
Section 40(a)(1) of the Act 415 ILCS 5/40 (a)(l) and 35 Ill.
Adin. Code Section 105.102(a). The Board has long held that in
permit appeals the burden of proof rests with the petitioner.
The petitioner bears the burden of proving that the application,
2
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, the petitioner 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
Newspapers, Inc. v. Illinois Environmental Protection Agency, PCB
90-142, at 6 (December 20, 1990); Centralia Environmental
Services, Inc. v. Illinois Environmental Protection Agency, PCB
89—170, at 6 (May 10, 1990); City of Metropolis v. Illinois
Environmental Protection Agency, PCB 90—8 (February 22, 1990).
BACKGROUND
The City of Herrin is the owner and operator of the Herrin
Municipal Landfill located southeast of Herrin in Williamson
County, Illinois. (Pet. at 1.)’ The site consists of
approximately 70 acres and was originally permitted on September
10, 1975. (Pet. at 1.) In 1988, Herrin requested a development
permit from the Agency to move its operations from one location
to another within the permitted boundaries of the facility. (Tr.
at 11-12.) The Agency denied the request based upon
informational deficiencies initially and later denied the
resubmitted application on the grounds that Herrin had failed to
receive siting approval. (Pet. Exh. 1, 2, 3, 4, and 5; Tr.at 14-
18.)
In 1988, the Illinois Attorney General on behalf of the
People of the State of Illinois filed an amended complaint
1
The Agency record will be cited as “R Vol.
—
at
_“;
the
petition for review of permit denial will be cited as “Pet. at
_“;
petitioner’s brief will be cited as “Pet. Br. at
_“;
petitioner’s reply brief will be cited as “Pet. RBr. at
“;
respondent’s brief will be cited as “Res. Br. at
_“;
the hearing
transcript will be cited as “Pr. at
_“;
petitioner’s exhibits
will be cited as Pet. Exh.
3
against the City of Herrin along with a stipulation and
settlement agreement in circuit court. (R. Vol. I at 90.) As a
part of the settlement agreement Herrin agreed to obtain an
operating permit for all portions of the site in which Herrin
conducts waste disposal. (R. Vol. I at 97.)
In March 1990 siting approval for a vertical expansion of
the Herrin facility was granted by the Williamson County Board of
Commissioners. (R. Vol. I at 164-167.) In August 1990 an
application requesting a supplemental permit for the vertical
expansion was filed with the Agency. (Pet. at 2, R. Vol. I at
147.) The August 1990 application “anticipated that closure of
the vertical expansion will begin in July 1992 and be closed by
November 1992.
. .“.
(R. Vol. I at 177.) The Agency issued a
permit (1990-353-SP) in November 1990 for the vertical expansion.
(R. Vol. I at 123—126c.) The November 1990 permit (1990—353—SP)
stated that the “facility shall initiate closure no later than
September 18, 1992”. (R. Vol. I at 126A.) Herrin did not appeal
that permit.
Prior to the Agency issuing a permit in response to the
August 1990 application the Board’s regulations governing
landfills were adopted.
(~
In the Matter of: Development,
Operating, and Reporting Requirements for Non—hazardous Waste
Landfills, R88—7, 114 PCB 483, (August 17, 1990) (hereinafter
cited as “R88-7 at
“).)
The landfill regulations apply to
nonhazardous waste landfills including “municipal” and industrial
landfills. (R88-7 at 2.) Existing facilities were divided into
three general groups based on the level of compliance the
facility could demonstrate with the new regulations. (Id.)
Subpart C facilities may remain open for an indefinite period of
time beyond seven years and are required to meet the most
stringent requirements. Subpart D facilities may remain open for
seven years and are required to meet less stringent of
requirements, but expansion of the facilities was prohibited.
Subpart E facilities must initiate closure within two years or
already be scheduled to close. Subpart E facilities were not
required to meet any of the closure requirements adopted in R88—
7, but were required to close under existing Part 807. (Id.)
In March 1991, Herrin filed with the Agency a PA15 form
which is required to be filed pursuant to the Board’s regulations
(See 35 Ill. Adm. Code 814.103). (Pet. at 3; R. Vol. II at 164—
166.) On that form, Herrin indicated that it was a “Subpart D”
facility and would “initiate closure by September 18, 1997”. (R.
Vol. II at 164B.) The Agency took no action in response to the
submission of the PA15 form. (Tr. at 116.)
On September 16, 1992, the Agency sent a letter to Herrin
indicating that according to Agency records the facility was
regulated pursuant to 35 Ill. Adin. Code 814 Subpart E and was
scheduled to close by September 18, 1992. (R. Vol II at 166B.)
4
The letter went on to indicate that Herrin could be subject to
enforcement with resulting fines if found in violation of the
Board’s regulations. (Id.)
Herrin contacted the Agency upon receipt of September 16,
1992 letter. (Tr. at 130—134.) After discussions between Herrin
and the Agency, the Agency issued a supplemental permit (1992-
271—SP) on September 21, 1992, allowing Herrin to accept waste
until October 8, 1993. (R. Vol. II at 167.) However, the
supplemental permit still stated that “this facility must begin
closure by September 18, 1992 (Subpart E, 814), and may continue
to accept waste during closure until October 8, 1993 (807.509)”.
(R. Vol. II at 167.) The permit included 15 conditions (R. Vol.
II at 167—169) and was not appealed by Herrin.
On April 23, 1993, the Agency again wrote Herrin concerning
its scheduled date of closure. (R. Vol II at 327.) In response
to the April 23, 1993, letter Herrin requested that the Agency
consider Herrin a Subpart D facility and allow Herrin to remain
open until as late as 1997. (R. Vol. II at 347.) The Agency
denied this request on September 16, 1993 and this appeal
followed. (R. Vol. II at 329—330.)
DISCUSSION
Request to Strike Portion of Respondent’s Brief
As a preliminary matter, the Board notes that in Herrin’s
reply brief, Herrin asks that a portion of the Agency’s brief be
stricken. (Pet. RBr. at 3.) Specifically, Herrin asks that the
Agency’s argument that Herrin is estopped from seeking a change
in the permit is not properly before the Board. (Pet. RBr. at
3.) Because the issues in a permit appeal are established by the
permit denial letter, Herrin maintains that the argument is an
affirmative defense likely to take Herrin by surprise and thus
should be stricken. (Pet. RBr. at 4.) The Agency’s estoppel
argument merely recites facts contained in the record by pointing
out that Herrin had not appealed previous permit decisions on the
closure date. These facts would be before the Board even if the
Board were to strike the portion of the Agency’s brief discussing
estoppel. Therefore, the Board denies the request to strike.
Herrin’s Argument
Herrin argues that the Agency’s determination denying Herrin
a permit modification should be reversed because the amendments
adopted in R88-7 do not apply to Herrin on the theory that this
case is controlled by American Fly Ash Co. v. County of Tazewell,
(120 Ill. App. 3d 57 (3d Dist. 1983)) (American). (Pet. Br. at
7.) In American, the company had applied for and received (July
22, 1981) a permit to dispose of fly ash and boiler slag prior to
the signing of the local landfill siting bill (SB 172). (Pet.
5
Br. at 7—8.) The specific terms of SB 172 stated that it applied
to all facilities “initially permitted for development or
construction after July 1, 1981”. Tazewell County took the
position that the new law nullified the Agency issued permit and
that American was required to seek local siting approval. (120
Ill. App. 3d at 58; Pet. Br. at 7-8.) The court disagreed
stating that “justice, fairness and equity require that persons
who comply with the law not as it might be but as it is then is
effect, and in this instance obtain the required permit after
expenditure of funds, should not have that permit nullified by
retroactive application of a statute subsequently enacted.” (120
Ill. App. 3d at 59.)
Herrin maintains that it has “fallen victim to not one, but
in fact two changes in the law”. (Pet. Br. at 8.) Herrin argues
that the first change in the law involved a Supreme Court of
Illinois decision which required Herrin to seek siting approval
in 1988 for the vertical expansion of the facility. (M.I.G.
Investments. Inc. v. Environmental Protection Agency, 151 Ill. 2d
122 (1988).) The second more significant change, according to
Herrin, was the adoption of R88—7. (Pet. Br. at 9.) Herrin
argues that “there was absolutely no means for Herrin to
prepare for or anticipate either the effective date of the R88-7
rules or the final content of those rules.” (Pet. Br. at 10.)
Herrin recites at length the history of the landfill regulations
in Illinois, pointing out that at least one docket preceded R88-7
before the Board and that the Board had several opinions and
orders in R88—7. (Pet. Br. at 11.) Thus, Herrin argues the
history of R88-7 “would not have led any reasonable permit
applicant to assume anything with respect to the final effective
date or content of those regulations.” (Pet. Br. at 10.)
Herrin states that it:
had the misfortune to have sought its relief
from the Agency during a period of regulatory
flux. This misfortune has imposed no less
than an injustice upon Herrin, and the words
of the Court in American Fly Ash are directly
applicable here-
-
‘justice, fairness and
equity require that persons who comply with
the law not as it might be but as it is then
in effect...should not have that permit
(request nullified by retroactive
application of a regulation subsequently
enacted. 120 Ill. App. 3d at 59. (Pet. Br.
at 12.)
Herrin argues that “justice, fairness and equity” should
intervene to relieve Herrin of the regulatory requirements “which
arbitrarily impose a severe burden upon Herrin to Herrin’s
detriment because of reliance upon the previous regulatory
6
requirements.
.
.“.
(Pet. Br. at 12.) Herrin further maintains
that such an outcome is supported by a long history of Illinois
case law. (Pet. Br. at 12.) Herrin then cites to two cases
which Herrin asserts support its position. Herrin cites to Frank
v. State Sanitary Water Board of Illinois, 33 Ill. App. 2d 1,
(1st Dist. 1961) (Frank) and Wachta v. Pollution Control Board, 8
Ill. App. 3d (2d Dist. 1972).)
Herrin argues that the doctrine of estoppel should apply in
this case. Herrin maintains that the Agency required Herrin to
close its facility in 1992, while Herrin now wishes to close its
facility in 1995. Absent the application of the R88—7
regulations, such a requirement is not justified, according to
Herrin. Herrin argues that it has sufficient capacity to remain
open until 1995 and prior to that date would “deprive Herrin of
some $430,000”. (Pet. Br. at 14.) Finally, Herrin states that
“t)here is no justification for that deprivation, and justice,
fairness and equity dictate that result be avoided here.” (Pet.
Br. at 14.)
Agency’s Argument
The Agency maintains that Herrin should be estopped from
seeking a different closure date. (Res. Br. at 9.) In support
of its position the Agency states that the operating permit which
initially called for closure of the Herrin facility by 1992 was a
result of an enforcement action brought by the Attorney General.
(Res. Br. at 3-4.) The Agency further states that no appeal was
taken from that permit. (Id.) The Agency also points out that
it issued a modification to that permit on September 21, 1992
allowing the facility to remain open until October 1993 and no
appeal was taken from that permit modification. (Res. Br. at 5.)
This appeal followed yet another request for modification which
the Agency denied. (Id.)
The Agency further maintains that Herrin has no economic
argument to support its position that estoppel applies. The
Agency states that the testimony regarding costs incurred was
specific to the proportions of time used in supervising daily
operations and in preparing the application for expansion,
including siting. (Res. Br. at 10 citing Tr. at 54.) The Agency
argues that operating expenses are not an extraordinary expense
made in expectation of future operations and closure plan
expenses are an obligation from past landfill use. (Id.) The
Agency cites to Land and Lakes v. EPA, PCB 91-217 to support this
position. (Id.)
The Agency also argues that the R88-7 regulations do apply
to Herrin and that the Board has already settled that issue. The
Agency cites to Ziffrin v. United States (318 U.S. 73, 63 S. Ct.
465 (1943)) for the proposition that “the administrative agency
must apply the changed law.” (Res. Br. at 6.) The Agency
7
further cites to two Illinois Appellate court cases that the law
in effect at the time of the agency’s decision applies.
(Illinois md. Telephone Association v. Illinois Commerce
Commission, 183 Ill. App. 3d 220, 539 N.E.2d 717, 132 Ill. Dec.
154 (1989); Skokie Federal Savings and Loan Assoc. v. Illinois
Savings and Loan Board, 61 Ill. App. Ct. 977, 378 N.E. 2d 1090,
19 Ill. Dec. 215 (1978).) The Agency states that the Board “has
previously followed this reasoning in Gallatin National Company
V.
Illinois Environmental Protection Agency,” PCB 90-183. (Res.
Br. at 7.)
Finally, the Agency argues that the issuance of the
requested permit would violate the Board’s regulations. (Res.
Br. at 11.) The Agency points out that there is no prohibition
to continued operation under the new landfill regulations as long
as the facility can demonstrate compliance with the applicable
regulations. (Res. Br. at 12.) However, the Agency argues
Herrin cannot demonstrate that the 1990 permit allowing the
expansion is in compliance with the Board prohibition on
expansions applicable to Subpart D facilities at 35 Ill. Adm.
Code 814.402 (b). (Id.) Thus, the Agency maintains that Herrin’ s
activities preclude it from demonstrating compliance with the
classification Herrin is seeking. (Id.)
Application of R88-7
Herrin’s argument that the R88-7 regulations should not
apply is not persuasive. The regulations adopted by the Board in
R88-7 specifically applied to “existing” facilities, which are
defined as any facility or unit not defined as a new facility.
(35 Ill. Adm. Code 810.103.) Part 814 as adopted in R88—7
applied standards to existing facilities and established
standards for both new and existing disposal units within the
facilities. Section 814.101 specifically states:
Landfill operators are required to determine the date
on which their facilities must begin closure, which is
dependent upon the ability of existing units to meet
the design and performance standards of this Part.
(35 Ill. Adm. Code. 814.101.)
Thus, the plain language of R88-7 applies the regulations to
existing facilities which include Herrin.
Furthermore Herrin’s argument that the regulations were
applied retroactively and Herrin’s reliance on American Fly Ash
are not convincing. The R88-7 regulations became effective in
September of 1990 and Herrin’s permit was issued by the Agency in
November of 1990. In American Fly Ash the landfill operator had
a permit in hand and the legislation’s effective date was
8
retroactively applied to a date prior to the issuance of the
permit. Herrin did not receive a permit until after R88-7 was
effective.
In its argument, the Agency properly cited to Gallatin
National Company
V.
IEPA, PCB 90-183, (January 18, 1992) 118 PCB
97 (Gallatin). In Gallatin, the petitioner specifically argued
that the R88-7 regulations should not apply retroactively to
Gallatin. (Gallatin at 4.) Gallatin, like Herrin, was in the
process of applying for a permit for its landfill when R88-7 was
adopted. The Agency indicated that it would apply the provisions
of R88-7 to Gallatin and Gallatin sought a variance from portions
of the R88—7 regulations. (Gallatin at 2.) Gallatin argued
against the retroactive application of R88-7 in the variance
proceeding. The Board found that Gallatin clearly met the
definition of a “new unit” in R88-7 and the regulations applied
to Gallatin. (Gallatin at 5.) Thus, the Board has already ruled
that a permit applicant who was in the process of applying for a
permit during the pendency of R88-7 is subject to the provisions
of R88—7 even if the permit is issued after the adoption of R88—
7.
The provisions of R88-7 would have applied to Herrin even if
Herrin had not been seeking a new permit during the pendency of
the rules. The landfill regulations were adopted to protect the
environment of the state of Illinois and to insure the safest
possible landfill operations. Herrin would have been required to
meet the standards of Part 814 if it wished to remain open. The
provisions of R88—7 apply to all existing landfills.
Herrin is arguing that it should be allowed to close under
Part 814 Subpart D rather than Subpart E. However, Herrin
accepted a permit modification in November of 1990 after the
adoption of R88-7. The Agency used the provisions of R88-7 and
specifically Section 814.Subpart E, in establishing the closure
date of September 1992 in the November 1990 permit. Herrin did
not appeal that permit and in fact accepted a modification in
September 1992 which allowed Herrin to “accept waste during
closure until October 8, 1993”. (R. Vol. II at 167.) Herrin
then sought to modify the November 1990 permit by applying a
different portion of the R88-7 regulations. Therefore, the
Board finds that Herrin has waived the argument that R88-7 should
not apply to the Herrin facility.
Estop~e1
Herrin argues that “justice, fairness and equity” require
the application of the doctrine of estoppel in this case. The
Agency argues that Herrin should be estopped from seeking relief.
The Board has applied the doctrine of equitable estoppel in very
rare instances. In In the Matter of: Pielet Brothers’ Trading,
Inc., AC 88—51, 101 PCB 131 (July 13, 1989), Pielet deposited
9
waste by an area method rather than by trench method pursuant to
its permit. Pielet argued that, under the common law principles
of estoppel, the Agency should be estopped from punishing it for
changing its operations from a trench fill to an area fill
because it allowed the change. The evidence revealed that Pielet
had several meetings with the Agency and provided documentation
indicating that it was operating as an area fill, and that the
Agency did not inform Pielet that its activities could be a
violation of the Act for which an administrative citation could
be issued. The Board found that the Agency was estopped from
finding Pielet in violation of the Act based on its belief that
“the record reveals that the Agency, through its representatives,
made representations to Pielet Brothers upon which Pielet
Brothers could reasonably have believed allowed it to deposit
waste by the area fill method in certain portions of the landfill
in addition to those permitted”. (Id. p. 9, 101 PCB at 140).
Also, in IEPA v. Jack Wright, AC 89—227 (August 30, 1990), the
Agency issued an administrative citation against Mr. Wright for
an open dumping that resulted in litter. The Board concluded
that statements made by an Agency field inspector led Mr. Wright
to believe that no administrative citation would be filed if he
took remedial action to clean up his facility and that, as a
result, the Agency improperly issued the administrative citation
against Mr. Wright.
There are also court cases which are relevant to this
argument. In Modine Manufacturing Co. v. PCB, 176 Ill. App. 3d
1172 (1988) (an unpublished order that was discussed in Modine
Manufacturing Co. v. PCB, 193 Ill. App. 3d 643, 549 N.E.2d 1379
(2nd Dist. 1990)), the Appellate Court found that the Agency’s
agreement not to institute enforcement proceedings for emission
violations barred an enforcement action brought by the Agency,
but that no such agreement existed with respect to certain permit
violations cited by the Agency. It then dismissed the action for
the emissions violations and remanded the case to the Board to
set the penalty on the permit violations. (see Modine, 549
N.E.2d at 1381, 140 Ill. Dec. 509).
In this case, the Board finds that the doctrine of estoppel
should not apply. Herrin had previously accepted a closure date
consistent with the decision by the Agency in this case. (See
November 1990 permit, R. Vol. I at 126A.) In fact, the date
originally accepted by Herrin has already been extended.
(September 1992 supplemental permit, R. Vol. II at 167.)
Although Herrin has expended funds, the record does not indicate
that the expenditures were greater than those necessary to
operate and expand the facility. Herrin’s only step to notify
the Agency that it wished to change its status was the filing of
a PA15 form. (R. Vol. II at 164—166.) On that PA15 form, Herrin
indicated that it desired to be classified as a Subpart D
facility and initiate closure by September 18, 1997. (R. Vol. II
at 164A.) The PA15 form was required by Board regulations and
10
the Agency was not required to respond to the filing of the form.
The record does show that the Agency may have responded to some
of the filings. However, the record does not indicate that the
Agency, as a standard practice, responded to the form.
Violation of Board regulations
The Board finds that the record is clear that extending the
closure date and allowing Herrin to close as a Subpart D facility
would result in violation of the Act. Section 814.402(b) (1)
(Subpart D) specifically prohibits expansion beyond the area
included in a permit prior to the effective date of this part.
Herrin received a permit to expand its facility in November 1990
two months after the effective date of R88-7. The permit stated
that the facility would initiate closure no later than September
18, 1992. (R. Vol. I at 126A.) Herrin did not appeal the
permit. Therefore, granting Herriri the modification to close
under Subpart D would violate the Board’s regulations.
CONCLUSION
The Board finds that Herrin has not shown that the issuance
of a permit modification allowing Herrin to close its facility
pursuant to 814.Subpart D would not violate the Board’s
regulations and the Act. The Board further finds that the
doctrine of estoppel does not apply in this case.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The denial by the Illinois Environmental Protection Agency
of a permit application for amendments to existing permits
requested by the City of Herrin is affirmed.
1.
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 that the above opinion and order was
adopted on the
/
day of
7)’~
~L-t~i_
1994, by a vote of ~
Control Board
