ILLINOIS POLLUTION CONTROL
BOARD
July 22,
1993
PEKIN METRO LANDFILL,
)
Petitioner,
)
v.
)
PCB 93-10
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
This matter
is before the Board on the January
14,
1993
filing of
a petition for permit appeal by Pekin Metro Landfill
(Pekin).
On June
1,
1993, the Illinois Environmental Protection
Agency
(Agency)
filed a motion for summary judgment.
On June 10,
1993,
Pekin Metro Landfill
(Pekin)
filed a motion for summary
judgment,
a response in opposition to the Agency’s motion for
summary judgment, and a motion requesting leave to file both
pleadings instanter.
On June 23,
1993, the Agency filed a
response to Pekin’s motion for summary judgment and a motion for
leave to file the response instanter.
The issue in this case is whether the Agency has the
authority,
pursuant to 35
Ill. Adm. Code 814.104(c),
to “call—in”
Pekin’s application for significant permit modification prior to
September 18,
1994,
on the basis of its concern over groundwater
issues.
In its motion for summary judgment, the Agency requests
that the Board find that the Agency has such authority.
In the
alternative, the Agency asks the Board to dismiss Pekin’s
petition as being not ripe for review at this time.
Pekin,
on
the other hand, requests the Board to find that the Agency is
without such authority or,
in the alternative,
that the Agency
failed to allow Pekin a reasonable time within which to respond
to the “call
in”.
Both Pekin and the Agency,
in their respective motions to
file instanter, assert that there
is no objection to either
motion.
Accordingly, the Board grants Pekin’s request for leave
to file its response and motion for summary judgment instanter.
The Board also grants the Agency’s request for leave to file its
response to Pekin’s motion for summary judgment instanter.
For
the reasons expressed below, the Board grants the Agency’s motion
for summary judgment, and denies Pekin’s cross—motion for summary
judgement.
FACTS
Pekin operates a sanitary landfill located
in Tazewell
County, Illinois.
On August
7,
1970,
the Agency granted Pekin an
2
operating permit.
That permit was revised on February 10,
1989.
On March 18,
1991,
Pekin filed form “LPC-PAIS” with the Agency,
as required by 35
Ill. Adm. Code 814.103.
(Agency Rec.
at 1-5.)
In that form,
Pekin indicated that it planned to initiate closure
of its landfill
in August
1997, and that,
as a result,
it was
subject to 35 Ill.
Adm. Code 814.Subpart
D.’
(~.
at 2.)
Pekin
also noted that it planned to file the application for
significant permit modification.2
(u.)
On February 21,
1992, the Agency notified Pekin that it
would have to submit its application for a significant permit
modification by June 15,
1992.
(~.
at 6.)
On June 16,
1992,
Pekin requested the Agency to extend the filing date of its
application until November
1,
1992.
(~.
8.)
In support of its
request, Pekin stated:
wJe
are in the midst of a groundwater investigation
and remediation program.
Although the final results of
this investigation will have no bearing on our closure
date,
they will dictate or duplicate some of the
testing required in the significant modification, such
as additional monitoring wells.
As soon as we have an
approved plan for the remediation we will be happy to
begin the work required for the significant
modifications.
On June
30,
1992,
the Agency granted Pekin’s request for
extension until November
1,
1992.
(Id.
at 9.)
On October 28,
1992, Pekin requested a second extension
until:
“.
.
.six months from the date on which
Pekin
submits its
remediation plan for the groundwater contamination....
Pekin
shall file its remediation plan with the Agency by January 31,
1993.”
(~.
at 10.)
In support of its request,
Pekin stated:
the
groundwater
remediation
issues have occupied
considerable time on the part of our client....
For
that reason,
and for the additional reason that the
resolution of the groundwater matters discussed in the
report will have to occur before
Pekin
can submit its
application for significant modification, we hereby
135
111.
Adm. Code 814.Subpart D
is applicable to facilities
planning to initiate closure by September 18,
1997.
235
Ill.
Adin.
Code
814.104(c)
sets
a
September
18,
1994
deadline for the submission of such applications
for those sites
planning to remain open past September 18,
1992.
3
request additional time to prepare the application for
significant modification.
On December 11,
1992,
the Agency granted Pekin an extension,
but
until only January
1,
1993, not until
6 months thereafter,
as
requested.
(~.
at 14-15.)
The Agency,
in that letter,
stated:
the
reason the application was called in is that
the Agency
is concerned about the ability of this
facility to demonstrate that
it is capable of meeting
the standards to remain open.
The Pollution Control
Board explained this provision and rationale in the
adopting opinion
(R88-7)
dated August 17,
1990.
In your letters for extension you explained that the
need for more time was tied to a ground water
investigation and remediation program.
This is exactly
why the Agency has called in the significant
modification and now that the option to initiate
closure before September 18, 1992 and be subject to the
regulations of
35 Ill.
Adin.
Code 807 has passed, the
investigation and reinediation will need to be an
integral part of the significant modification
application....
The
intent of the call—in rules was
to allow this Agency programatic
(sic)
flexibility in
determining call—in dates to insure all facilities
receive their significant modifications
in timely
order.
(Id.)
DISCUSSION
35 Ill.
Adm. Code 814.104 provides,
in part,
as follows:
(a)
All operators of landfills permitted pursuant to
Section 21(d)
of the...Act...shall file an application
for a significant modification to their permits for
existing units,
unless the units will be closed
pursuant to Subpart E within two years of the effective
date of this Part i.e.,
September 18,
1992.
(c)
The application shall be filed within 48 months of
the effective date of this part
i.e.,
prior to
September 18,
19943,
or at such earlier time as
the Agency shall specify in writing pursuant to 35
Ill. Adm.
Code 807.209
or 813.201(b).
4
35 Iii. Adm. Code 807.209(a)
grants the Agency authority to
“revise any permit issued by
it to make the permit compatible
with any relevant new regulations adopted by the Board.”
35
Ill.
Adm. Code 813.201(b) (1) (D)
grants the Agency the authority to
modify a permit when there
is a “promulgation of new statutes or
regulations affecting the permit.”
Pekin asserts that the Agency’s scope of authority is
delineated on the face of the regulations.
Specifically, Pekin
argues that 35 Ill.
Adin.
Code 814.104(c)
allows a “call—in” only
in accordance with the authority granted to the Agency pursuant
to 35 Ill. Adm. Code 807.209(a)
or 813.201(b)(l)(D).
In other
words, Pekin argues that, although 35 Ill. Adm. Code 807.209(a)
or 813.201(b) (1) (D)
authorize the Agency to issue modified
permits, neither section requires a perxnittee to request a permit
modification
in the first instance, or authorizes the
implementation of a “call-in” procedure.
Pekin asserts that the
regulations authorize the Agency, at most, to issue a permit
modification with a condition requiring the submission of a
supplemental permit application to demonstrate compliance with
the new Part 814,
Subpart D regulations.
The Agency,
on the other hand, argues that the “call-in” of
Pekin’s application
is an Agency permit modification resulting
from the “promulgation of new statues or regulations affecting
the permit” and an Agency permit revision “to make the permit
compatible with any relevant new regulations adopted by the
Board”.
(see 35
Ill.
Adin.
Code 807.209(a)
and 813.201(b) (1) (D).)
35
Ill.
Adrn.
Code 814.104(c)
explicitly authorizes the
Agency’s “call-in” of a significant modification application
prior to September 18,
1994,
to comport with the Board’s new
regulations.
The Agency is under no duty to provide
justification for its “call-in”, except to assure that the
applicant will be in compliance with applicable regulations.
In
fact, the Agency’s February 21,
1992 “call—in” letter states as
follows:
this
LP-PA15 notification submitted for the above
referenced facility pursuant to 35~.IACsubtitle G
Section 814.103 indicated that you intend to operate
this facility past September 18,
1992.
Sections 807.209 and 813.210(b) (1) (D)
allow the Agency
to revise any permit to be compatible with new
regulations adopted by the Board.
Therefore,
pursuant to these regulations and Section
814.104(c)
we are requiring that the application for
significant modification for this facility be submitted
by June 15,
1992.
5
(Agency Rec. at
6.)
The purpose of the “call-in” provision of 35
Iii. Adm. Code
814.104(c)
was to assure an orderly transition for existing
landfills from operation under 35
Ill.
Adm. Code 807 to operation
under the applicable requirements of 35 Ill. Adm. Code 811.
Support for this proposition can be found in the Board’s August
17,
1990 opinion in R88—7.
The Board,
in its opinion,
stated,
in part, as follows:
all
existing landfill facilities are required to
notify the Agency
(in accordance with Section 814.104),
within six months of the effective date, principally
with regard to the facility’s estimated date of closure
of existing units and state whether the facility is
subject to the requirements of either Subpart B,
C,
D
or
E.
Pursuant to Part 814,
if an existing facility is unable to
meet the requirements of Subparts B or C and D, then it is
subject to Subpart D and such a facility will have to
initiate closure within
2 years of the effective date of the
Part subject to the existing operation and closure standards
of Part 807.
All other existing facilities subject to
Subparts
B,
C or D are required to submit information,
as
required by 35
Ill. Adm. Code 812,
to the Agency
demonstrating compliance with the appropriate Subpart.
Such
information
(for unpermitted facilities),
or an application
for significant modification of a permit in accordance with
35
Ill. Adm. Code 813
(in the case of permitted facilities),
is to be filed with the Agency within 48 months of the
effective date of the Part or an earlier date specified by
the Agency.
One example of when an earlier date may be
specified by the Agency
is a situation in which the existing
unit or facility, subject to Subpart
D, has plans to close
within
4 years
(48 months)
of the effective date of the
Part.
In the Matter of:
Development, Operating and Reporting
Reguirements for Non-Hazardous Waste Landfills (August
17,
1990),
R88—7 at 21,
114 PCB 503.
In addition, the Board’s Scientific and Technical Section
STS),
in response to the Agency’s comments regarding 35 Ill.
Adm. Code 814.104 and its concerns that it did not wish to be
faced with the scenario of reviewing significant modification
applications for sites that have already commenced closure,
stated,
in part,
as follows:
6
The “gap” as stated by the Agency would exist if the
Agency fails to use the notification of facility status
information that they receive (see Section 814.103) to
ask facilities
(see Section 814.104(c)
planning to
close within 2-4 years to submit a significant
modification application earlier than the 48 month
period specified.
In the Matter of:
Development. Operating and Reporting
Requirements for Non—Hazardous Waste Landfills
—
STS’s
Response to Comments on Proposed Parts 807 through 815
(March
1,
1990), R88-7, Appendix A-2 at 250.
Pekin incorrectly asserts that the Agency was without
authority to issue a “call—in” as a result of its concerns over
groundwater issues.
The Agency never gave such a reason for its
call-in, and it was not obligated to do so.
Rather, the Agency
iterated its concerns when it decided to deny Pekin’s request for
an extension of the Agency’s “call—in” deadline.
As for Pekin’s alternative argument that the Agency,
as a
matter of
law, must allow the permittee a reasonable time within
which to respond to a “call-in”
(i.e.,
one year advance notice of
the “call-in”),
the Board notes that Pekin
is unable to find
support for such proposition within the Act or the Board’s
regulations.
35
Ill. Adm. Code 814.104(c)
does not state how far
in advance of September
18,
1994 the Agency can “call—in” an
application,
nor does
it define the minimum period between the
Agency’s “call—in” notice and the due date for the application.
The Board also notes that this aspect of the regulations was not
appealed after the regulations were promulgated, nor has Pekin
filed a regulatory proposal to amend the regulations to include
such time
frames.
Even if this were not the case,
the Board
notes that Pekin has had almost 10½ months to submit its
application for modification
(i.e.,
from February 21,
1992 to
January
1,
1993.)
For the foregoing reasons, the Board grants the Agency’s
motion for summary judgment and denies Pekin’s cross-motion for
summary judgment.
As a result of our ruling, the Board need not
address the Agency’s alternative argument that this matter is not
ripe.
ORDER
The Board hereby grants the Illinois Environmental
Protection Agency’s motion for summary judgment and denies Pekin
Metro Landfill’s motion for summary judgment.
Section 41 of the Environmental Protection Act,
415 ILCS
5/41
(1992)
provides for the appeal of final Board orders within
35 days.
The Rules of the Supreme Court of Illinois establish
7
filing requirements.
(See also 35
Ill. Adm. Code 101.246,
Motions for Reconsideration.)
IT IS SO ORDERED.
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify th~tthe above order was adopted on the
,~
‘~—dayof
____________________,
1993,
by a vote of
_____________.
//
//
/
/
/
-
.
~
Dorothy M.
Gu’nn,
Clerk
Illinois Pollution Control Board