ILLINOIS POLLUTION CONTROL
BOARD
October 29,
1992
ESG WATTS,
INC.,
)
Petitioner,
v.
)
PCB 92—54
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
KEVIN T. NCCLAIN APPEARED ON BEHALF OF PETITIONER;
PENNI S. LIVINGSTON APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by N. Nardulli):
This matter is before the Board on an April
10,
1992
petition for review filed by ESG Watts,
Inc.
(ESG).
Pursuant to
Section 40 of the Environmental Protection Act
(Act),
ESG seeks
review of the Illinois Environmental Protection Agency’s
(Agency)
denial of seven special waste stream permit applications.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par.
1040.)
Members of the public
attended a hearing held on August 11,
1992
in Rock Island,
Illinois.
On August
13,
1992, the Board denied ESG’s motion for
summary judgment.
DISCUSSION
ESG owns and operates the Andalusia/Watts landfill in Rock
Island County.
On December 10,
1991, ESG filed seven special
waste stream applications.
(R.
Exh.
l-7.)~ ESG sought these
permits so it could accept paint skimmings,
paint filters and
debris, grinding dust,
and trap and drain clean—out from various
generators.
(~~)
On March
9,
1992, the Agency denied all seven
applications, listing identical denial reasons
in all seven
denial letters.
(R. Exh.
15-21.)
Because the Agency’s denial
reasons frame the issues on review (Centralia Environmental
Services,
Inc.
V.
IEPA
(May 10,
1990), PCB 89—170), the Board
will set out the denial reasons in full:
1.)
Agency inspections have revealed that there have been
uncontrolled releases of leachate at this site.
The
waste may cause or contribute to the generation of
a
contaminated leachate.
No demonstration has been made
R.
Exh.
—
refers to the Agency Record which consists
of various exhibits.
01
37-00t47
2
that this waste will not do so.
The acceptance of this
waste could or will exacerbate the water pollution
problems at this site by contributing to the volume and
intensity of the leachate generated.
Specifically, the
following relevant violations are noted which relate to
improper leachate management and mismanagement of
stormwater which causes more leachate generation
through contact with waste or existing leachate.
12(a)
of the Act:
Causing or allowing the discharge of contaminants so as
to cause water pollution in Illinois.
12(d)
of the Act:
Depositing contaminants upon the land in such place and
manner so as to create a water pollution hazard.
12(f)
of the Act:
Causing, threatening,
or allowing the discharge of
leachate into the waters of the state, without an NPDES
Permit,
or in violation of regulations adopted by the
Board.
21(p) (1)
of the Act:
Conducting the landfill operations in a manner
resulting in refuse in standing or flowing water on or
around the site.
21(p) (2)
of the Act:
Conducting the landfill operations in a manner
resulting in leachate entering the waters of the State.
21(p) (3) of the Act:
Conducting the landfill operations in such a manner
resulting in leachate flows exiting the landfill
confines.
35 Ill. Adm.
Code 302.203:
Causing or allowing matter of other than natural origin
in concentrations or combinations toxic or harmful to
human,
animal, plant or aquatic life to enter waters of
the State.
35
Ill. Adm. Code 807.313:
Ut
37-OOL~8
3
Causing or allowing the operation of the landfill so as
to cause or threaten to allow the discharge of
contaminants so as to cause water pellution in
Illinois.
35 Ill.
Adm. Code 807.314(e):
Allowing the operation of the landfill in a manner that
does not provide adequate measures to monitor and
control leachate.
2.)
Waste
at this facility has not been properly covered
and contained.
It has not been demonstrated that this
waste stream is suitable for disposal without daily
cover.
Failure to comply with cover requirements can
cause unpermnissible sic)
migration, dust generation
and excess generation of leachate from this waste.
The
frequency and severity of the following violations
could or will be increased by disposing of this waste
at this site.
2l(p)(5)
of the Act:
Conducting the landfill operations
in a manner
resulting in uncovered refuse remaining from a previous
operating day.
21(p)(12)
of the Act:
Failure to collect and contain litter from the site by
the end of each operation day.
35 Ill.
Adm. Code 807.302:
Failure to comply with the terms of Permit #1972-72
Condition #3:
Each fill area,
and daily cell area
therein must be properly covered, graded,
and
maintained.
35 Ill.
Adm. Code 807.305(a):
Failure to apply adequate daily cover to exposed
refuse.
35 Ill.
Adm. Code 807.306:
Failure to collect and contain litter from the site by
the end of each operating day.
3.)
Proper management of this waste cannot be assured until
the sections listed below are complied with.
This may
lead to violations of the Environmental Protection Act
O~37-UOL~9
4
and the regulations promulgated thereunder.
The
consequences of such violations are the contamination
and endangerment of the environment.
Adding this waste
to the site would increase the threat proportionately.
21(d)(1)
of the Act:
Allowing the waste to be accepted may lead to
conducting a waste—disposal operation in violation of
any conditions imposed by a permit granted by the
Agency.
The following is a list of the permit
conditions which disposal of this waste may violate:
#3
of Permit 1972—72 12/12/72
Cover Requirements
#8
of Permit 1984—80l—SP 9/5/84
No Process Discharge Without Permit
#1 of Permit l988—277—SP 11/28/88
Submitting Financial Assurance
#5 of Permit 1988—277—SP 11/28/88
Maintaining Financial Assurance
#14 of Permit 1988—277—SP 11/28/88
No Process Discharge Without Permit
#2 of Permit 1991—l83—SP 8/20/91
Financial Assurance
#8 of Permit 199l—183—SP 8/20/91
No Process Discharge Without Permit
#2 of Permit 199l—292—SP 12/24/91
Financial Assurance
21(d) (2)
of the Act:
Allowing the waste to be accepted may lead to
conducting a waste—disposal operation in violation of
any regulation or standard adopted by the Board under
the Environmental Protection Act.
21.1(a)
of the Act:
Allowing waste to be accepted may contribute to
conducting a waste-disposal operation without posting
adequate performance bond or other security with the
Agency for the purposes of insuring closure of the site
and post—closure care in accordance with the
3~37-G’O50
5
Environmental Protection Act and regulations adopted
thereunder.
The facility has been cited for a number of violations
described in the January 30,
1992 Enforcement Notice Letter.
Acceptance of this waste stream would lead to continued
violations and may cause an increase in the intensity or
frequency of containment movement.
It was not demonstrated
how this facility will accept and dispose of this material
without causing continued violations of the provisions
cited.
(R.
Exh.
15—21.)
Testimony given by the Agency’s permit analyst who reviewed
ESG’s permits indicates that the alleged existing violations at
the site were a substantial basis for permit denial.
Ronald
Steward testified that he reviewed ESG’s applications and was
aware that the site was very much out of compliance.
(Tr. at
104.)
Steward testified that the Agency’s January 30,
1992
enforcement compliance letter
(Exh.
13) provided substantial
justification for denial of the permits.
(Tr. at 57—58,
73-74,
76.)
Conversations with other Agency personnel also provided a
basis for denial.
(Tr. at 76,
109.)
These conversations
“reinforced what was already stated in the January 1992 letter”.
(Tr.
at 82.)
Steward testified that no violations other than
those referenced in the enforcement letter were discussed.
(~~)
According to Steward, the violations alleged in the enforcement
action affected his decision to deny the permits.
(Tr. at 86.)
Steward testified that,
to demonstrate that issuance of the
permits would not cause violations of the Act and regulations,
ESG needed to demonstrate “that violations of the Act would not
occur as had been occurring, which was evidenced by the
enforcement notice letter.”
(Tr. at 71—72.)
According to
Steward, he could not in good conscience grant permits where the
applicant was not in compliance with the law in handling current
waste streams.
(Tr. at 112-13.)
It is well established that the primary issue
in a permit
appeal before the Board is whether the applicant has met its
burden of establishing that the application, as submitted to the
Agency, demonstrates that no violation of the Act or regulations
would occur if the permit was granted.
(Joliet Sand
&•
Gravel
v.
IEPA (3d Dist.
1987),
163 Ill. App.
3d 830,
516 N.E.2d 955.)
It
is equally well established that permit denial is an improper
substitute for an enforcement action.
(Centralia Environmental
Services, Inc.
v.
IEPA (October 25,
1990), PCB 89—170 at 10—11;
Waste Management v.
IEPA (October
1,
1984),
PCB 84—45,
84—61
&
84—68
(consolidated); Frink’s Industrial Waste,
Inc. v.
IEPA
(June 30,
19830, PCB 83-10.)
The record establishes that the
Agency has filed an enforcement action against ESG for alleged
violations at the Andalusja/Watts’
site.
The record also
U
37-0051
6
establishes that the violations alleged in the enforcement notice
letter form the basis of the permit denials.
ESG contends that
the Agency improperly denied its permits as a means of
enforcement.
The Agency responds that it denied the permits
because it “received no assurance that ESG
could take proper
care of these wastes when ESGJ
has not and was not taking proper
care of the waste it received at the time of denial by operating
within the limits and requirements of the law.”
(Agency Brief at
11.)
Denial Reason
#1
The first denial reason relates to water pollution.
The
Agency reasons that because there have been prior uncontrolled
releases of leachate at the site,
new waste streams should not be
permitted because they would exacerbate the water pollution
problems existing at the site.
In support of this finding, the
Agency cites general statutory and regulatory prohibitions
against water pollution (Ill. Rev.
Stat.
1991,
ch.
111 1/2, pars.
10012(a),
(d),
(f);
35 Ill.
Admn.
Code 302.203, 807.313), Section
807.314(e)
of the Board’s landfill regulations which prohibits
operating a landfill without adequate measures to monitor and
control leachate, and statutory prohibitions against operating a
permitted landfill
in a manner so as to allow refuse in water,
leachate to enter water and leachate to exit confines of the
landfill
(Ill.
Rev.
Stat.
1991,
ch.
11.
1/2, pars.
1021(p) (1),
(2),
(3)).
The Agency’s denial reason
is clearly based on conduct which
has allegedly already taken place, or
is allegedly still
occurring,
at the site.
Ron Steward, the Agency’s permit
analyst, testified that he “needed a demonstration that the
approval of these permit applications would not cause violations
as had previously occurred at the site with the waste they’d
already accepted.”
(Tr. at 72.)
The Board recognizes that it is
the applicant’s burden to demonstrate compliance in its
application.
However,
Sections 21(p)(1),
(2), and
(3)
of the Act
prohibit certain conduct.
Here, there
is no conduct relating to
the special waste streams as those wastes are not yet being
accepted at the site.
If these Sections are being violated at
the site,
the proper mechanism to address these violations is an
enforcement action.
The first denial reason also references concerns about
leachate monitoring and control.
Ron Steward, the Agency’s
permit analyst, testified that he prepared a memorandum after
speaking with Mitch Smith, who had inspected the site.
(Tr.
at
93.)
This memorandum stated that,
on March
9,
1992,
Smith had
observed two leachate seepages at the site.
(R. Exh.
14.)
Steward testified that a leachate seep is not necessarily
a
violation.
(Tr. at 93-94,
99.)
Thomas Jones,
a civil engineer
employed by ESG, testified that he was familiar with ESG’s
U
37-0052
7
leachate monitoring and control procedures.
(Tr. at 126-27.)
He
testified that he was notified of the seeps observed by Smith on
March
9,
1992 and that the seeps were repaired.
(Tr. at 129.)
Mitch Smith did not testify at hearing.
The only references to
the alleged violations contained in the record are those set out
in Steward’s memorandum and the enforcement notice letter.
(R.
Exh.
13,
14.)
The record establishes that the Agency’s concerns about
leachate control are based upon alleged violations at the site.
Testimony at hearing indicates that to satisfy the Agency’s
concerns, ESG would have had to present its defense to the
enforcement action in this permit appeal.
Steward was questioned
as to what information was needed to demonstrate compliance.
(Tr.
at 65-72.)
In response, he stated that “w)hat
I needed was
a demonstration that violations of the Act would not occur as had
been occurring, which was evidenced by the
Agency’s)
enforcement
notice letter.”
(Tr.
at 71-72.)
However,
if the Agency has
concerns that ESG is not adequately monitoring or controlling
leachate so as to cause water pollution,
an enforcement action is
the appropriate mechanism to address such violations.
(See e.g.,
Centralia Environmental Services v. IEPA (October 25,
1990),
PCB
89-170 at 10-11.)
Because the Agency’s denial reason is an
improper use of permit process as an enforcement tool,
the Board
finds that the denial reason must be stricken.
Denial Reason #2
The second denial reason relates to improper cover and
containment of waste at the site.
The Agency cites statutory and
regulatory prohibitions against leaving refuse uncovered,
failure
to collect litter on a daily basis,
and failure to comply with
a
previous permit condition requiring cover.
According to the
Agency, the frequency of these violations could or will increase
if disposal of the special wastes is allowed.
The Agency alleges that the instant permits were not denied
solely on the basis of the violations alleged
in the pending
enforcement action.
Rather, the Agency asserts that the permits
were denied because ESG failed to demonstrate that disposal of
the special waste streams would not cause violations of the Act
and regulations.
The Agency’s reasoning appears to be that,
because ESG has allegedly failed to apply daily cover and remove
litter in the past,
it cannot prove to the Agency that it will do
so in the future and, therefore, ESG should not be permitted to
accept additional wastes.
However,
if the Agency believes that a
permitted facility has violated the Act or regulations so as to
pose a continuing threat to the environment,
it may file an
enforcement action seeking revocation of permits.
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1033(b); Waste Management
V.
IEPA
(October
1,
1984),
PCB 84—45,
84—61
& 84—68
(consolidated)
at
37.)
Additionally, the Agency has Section 39(i)
of the Act at
0137-0053
8
its disposal which allows the Agency to deny a permit
if the
operator has a history of repeated violaticns.2
The Board finds
that the second denial reason must be struck ~s an improper use
of permit denial as a means of enforcement.
Denial Reason #3
The third denial reason concerns a general finding that
adding special wastes to the site would increase the threat of
contamination and endangerment to the environment.
The Agency
cites Section 21(d)(1)
of the Act which provides that no person
shall conduct a waste—disposal site in violation of any condition
imposed in a permit.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par.
1021(d)(1).)
The Agency then cites numerous conditions imposed
on ESG in prior permits,
including cover requirements,
prohibiting discharging without a permit and financial assurance.
Section 31(a) (1)
of the Act provides that the Agency may bring an
enforcement action for violation of a permit condition.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par. 1031(a)(1).)
In Centralia
Environmental Services,
Inc.
v. IEPA (October 25,
1991), PCB 89-
170 at 11, the Board recognized that an alleged failure to comply
with terms of a previously granted permit may be addressed by an
enforcement action and are an improper basis for permit denial.
Consequently, the Agency may not rely upon ESG’s failure to
comply with permit conditions as a basis for denial of the
special waste stream permits.
Next, the Agency cites Section 21.1(a)
of the Act which
requires that no person shall conduct a waste—disposal operation
on or after March
1,
1985 without posting a performance bond or
other security for the purpose of insuring closure and post-
closure care.
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1021.1(a).)
Section 807.661(d)
of the Board’s regulations allow
use of a trust fund as an alternative method of providing
financial assurance.
(35 Ill. Adm. Code 807.661(d).)
At
hearing, the Agency presented the testimony of John Taylor, an
Agency financial assurance analyst, who testified that,
as of
February 29,
1992,
ESG’s trust fund was $140,000
in arrears.
(Tr. at 175.)
In Centralia,
the Board stated that an
owner/operator’s obligation to submit payments into an
established trust fund exists independent of
its desire to obtain
supplemental permits or,
in the instant case,
special waste
2
The Board notes that in this case,
the Agency only
presents evidence of alleged violations. The Board’s
reference to Section 39(i)
is not intended as
a ruling
on whether the Agency could properly utilize Section
39(1)
in the instant case.
Moreover, the Board notes
that while the Agency cites Section 39(i)
in its brief,
it did not rely upon this provision in its denial
letters.
0~
37-0O5L~
11
For the foregoing reasons,
the Board finds that the Agency’s
denial reasons must be reversed as an improper use of the permit
process as
a means of enforcement.
Therefore
the Agency’s
decision denying ESG’s seven applications for special waste
stream permits is reversed and the Agency is directed to issue
the permits.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041)
provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
(But see also,
35 Ill. Adm. Code 101.246, Motions for Reconsideration,
and
Casteneda v.
Illinois Human Rights Commission
(1989),
132 Ill.
2d
304,
547 N.E.2d 437.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above p~jnionand order was
adopted on the ~2777~ day of
___________________,
1992 by a vote
of
7
-(
.
II
Control Board
0t37-0057