ILLINOIS POLLUTION CONTROL BOARD
May 9,
199.
EARL R. BRADD, as owner of
)
the BRADD
SANITARY
LANDFILL,
)
)
Petitioner,
PCB 90—173
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
NEIL F.
FLYNN APPEARED ON BEHALF OF PETITIONER,
AND
JAMES
G. RICHARDSON APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by• 3. Anderson):
This matter comes before the Board on the September 24,
1990
filing of
a Petition for Review by Earl R.
Bradd, as owner of the
Bradd Sanitary Landfill.
Mr. Bradd seeks review of the Illinois
Environmental Protection Agency’s
(“Agency”) August 21,
1990
decision to reject his Affidavit of Certification of Closure for
the Bradd Sanitary Landfill.
In his petition, Mr. Bradd asks that the Board reverse the
Agency’s decision to reject his Affidavit for Certification of
Closure, direct the Agency to issue a Certificate of Closure,
find that the landfill was closed prior to July
1,
1990, and set
the landfill’s period for post—closure care at five years after
completion of closure rather than the fifteen year post—closure
care period provided by Section 22.17(a)
of the Environmental
Protection Act (“Act”)
(Ill. Rev.
Stat.
Ch.
111½ par.
1022.17(a)).
(Pet.
p.
3).
In support of his request, Mr. Bradd
claims that the Agency’s August 21,
1990 Denial Letter failed to
notify him as to the manner in which his closure activities
violated or failed to comply with the Act and Board regulations,
and that his closure activities conform to the closure plan
previously approved by the Agency.
(~.
pars.
6,
7).
PROCEDURAL HISTORY
As previously stated,
Mr. Bradd filed his Petition for
Review on September 24,
1990.
On October 31,
1990, the Agency
filed the Agency Record.
On January
3,
1991,
Mr. Bradd filed a
motion,
dated December 19,
1990,
requesting the Board to strike
the Agency’s August 21, 1990 Denial Letter.
In his motion, Mr.
Bradd asserted,
in part, that the Agency’s Denial Letter did not
include a statement, pursuant to Section 39(a) of the Act
(Ill.
12
2—95
2
Rev.
Stat.
1989,
ch.
111½, par.
1039(a)),
of specific reasons why
the Act and regulations might not be met if the Certificate of
Closure was approved, but only listed several statutory and
regulatory citations that might be violated if the Certificate
was approved.
On December 31, 1990,
the Agency filed its
Response to Mr. Bradd’s Motion to Strike.
On January 18,
1991, the Board issued an Order noting that
the Agency, on the whole, provided an explanation of why the Act
and regulations might not be met if the requested Certificate of
Closure were granted.
The Board also noted, however, that the
Agency cited two regulatory sections,
35 Ill. Adm. Code
807.205(b) and
(c), without providing a reason why the
subsections might not be met if the requested Certificate of
Closure was granted.
Accordingly, the Board denied Mr. Bradd’s
motion and remanded the matter to the Agency with directions to
amend its denial letter and supply the reasons for its citation
of the two regulatory sections.
Finally, the Board noted that it
would be helpful if the Agency,
in the future, would 1)
frame its
denial letters to be consistent with the order of the numbered
paragraphs in Section 39(a) and
(b)
of the Act, and
2)
link the
specific reason(s) why the Act and the regulations might not be
met if a Certificate of Closure or a permit was granted, to each
statutory or regulatory section cited in the denial letter.
Hearings were held on February 1,
1991, and on February 5,
1991,
in Bloomington,
Illinois.
One member of the public was
present at the February 1,
1991 hearing.
On February 19,
1991, the Agency filed its Amended Denial
Letter pursuant to the Board’s January 18,
199.
Order.
On March
1,
1991,
Mr. Bradd filed his post-hearing Brief and a
motion asking the Board to strike the Agency’s Amended Denial
Letter in its entirety (see below).
On March
11,
1991, the
Agency filed its response to Mr. Bradd’s motion.
On March 18,
1991,
Mr. Bradd filed a reply to the Agency’s Response.
On March
25,
1991, the Agency filed its post-hearing Brief and a Motion to
Strike Mr. Bradd’s March 18,
1991 Reply.
Finally, on March 29,
1991,
Mr. Bradd filed his Reply Brief.
BACKGROUND
Mr.
Bradd
owns
and
operates
the
Bradd
Sanitary Landfill
located
in
Saybrook,
McLean
County,
Illinois.
(Pet.
par.
1;
Pet.
Br.
p.
1).
The
Agency
issued
a
developmental
permit
(Permit
No.
1974-82—DE)
and an operating permit
(Permit No.
1974-82-OP)
for
the facility on September 17,
1974, and on September 9,
1975,
respectively.
(Agency Rec. pp.
1-4; IEPA Ex.
1,
2; Pet. Exs.
5
and 6).
Although the permitted site consists of approximately 35
acres, the operating permit only allowed for approximately 16
acres to be filled.
(~.).
The operating permit also provided
for a two—well groundwater monitoring program for the site.
122—96
3
(Agency Rec. pp.
3-4; IEPA Ex.
2; Pet. Ex.
6).
On October 14, 1988, theAgency issued a supplemental permit
(Permit No.
1988-248-SP),
in which it approved Mr. Bradd’s
closure and post—closure plan and cost estimates for the
landfill.
(Agency Rec. pp.
84-93; IEPA Ex.
4; Pet.
Ex.
8).
Special Condition 6 of the permit required Mr. Bradd to amend the
soil over the entire planting area with lime, fertilizer,
and/or
organic matter,
if necessary,
and to provide mulch or some other
form of stabilizing material on the side slopes.
(u.).
Special
Condition 14 of the permit required that a final cover (exclusive
of any topsoil vegetative layer)
of at least two feet in
thickness be placed in lifts not to exceed eight inches (loose),
that final compaction of the landfill’s final cover be performed
using a sheepsfoot roller, and that at least one compaction test
be performed on a per acre, per lift basis.
(u.).
Special
Condition 15(b)
required Mr.
Bradd to propose, by way of a
supplemental permit application,
a revised groundwater monitoring
program for the landfill that would be in conformance with the
Agency’s “Groundwater Monitoring Network Guidelines”
(February
1987).
(Agency Rec.
pp.
84—93; IEPA Ex.
4; Pet.
Exs.
8 and 34).
The application for supplemental permit was to be submitted
within 90 days of the date of Permit No. l988-248-SP.
(Agency
Rec. pp.
84-93; IEPA Ex.
4; Pet.
Ex.
8).
On January 13,
1989, and pursuant to the supplemental
permit, Mr. Bradd filed a supplemental permit application
containing the proposed revised groundwater monitoring program
for the landfill.
(Pet.
Ex.
9).
Mr. Bradd’s proposed
groundwater monitoring program consisted of six monitoring wells:
one upgradient well on the eastern side of the landfill
(G-103);
one on the southern part of the landfill
(G-104); and one on the
northwestern part of the landfill
(G-102).
(~.
p.
8, Attachment
Be).
Mr. Bradd’s proposal continued to use an existing, Agency
permitted well (MP-1)
as a fourth monitoring well (G-lol), and
provided that two remaining wells would be used as peizometers
(P-101 and P—102).
(u.).
In a letter dated April
6,
1989,
the
Agency notified Mr. Bradd that the proposed groundwater
monitoring program was deficient.
Agency’s Response to
Petitioner’s Motion to Strike Agency’s Denial Letter,
Ex.
A;
Pet.
Exs.
10 and 38).
On April 30,
1990,
Mr. Bradd notified the Agency that he
would cease accepting waste and close the landfill at 12:00 p.m.
(noon) on May 5,
1990.
(Pet. par.
3,
Ex.
A; Agency Rec. p.
113;
Pet.
Exs.
11
-
Attachment II,
Figure No.
1,
and 31).
On June 27,
1990,
Mr. Allyn Colantino of the Agency’s Field Operation
Services Division inspected the landfill to determine whether Mr.
Bradd was complying with the closure requirements for the
landfill.
(Agency Rec.
pp.
141—160; Pet.
Ex.
13).
On June 29,
1990,
Mr. Bradd,
in conjunction with M. Rapps Associates,
Inc.,
an environmental engineering firm,
filed an Affidavit for
122—9
7
4
Certification of Closure and supporting documentation with the
Agency.
(Agency Rec.
pp. 94-172; IEPA Ex.
5; Pet. Ex.
11-
Affidavit for Certification of Closure).
On July 13,
1990, M.
Rapps and Associates,
Inc., mailed additional material to the
Agency that supplemented its June 29,
1990 submission to the
Agency.
(Agency Rec. pp.
161-172; Pet. Ex.
11-Addendum).
In a
letter dated August 21,
1990,
the Agency notified Mr. Bradd of
its rejection of the Affidavit for Certification of Closure
because the landfill was not closed in accordance with the
previously approved closure plan.
(Agency Rec. pp.
141-160;
Petitioner’s Motion to Strike Agency’s Denial Letter,
Ex.
A;
Pet.
Ex.
12).
In that letter, the Agency cited the following five
deficiencies in support of its denial of Mr. Bradd’s Affidavit
for Certification of Closure:
1.
Condition 15 of Permit No. 1988-248-SP
required the submittal of a permit
application assessing the current groundwater
conditions at the site and proposing an
adequate groundwater monitoring program.
This has not been done.
Although Application
No. 1989-10 attempted to satisfy this
condition,
it was denied on April
6, 1989 due
to technical deficiencies.
No subsequent
application addressing these deficiencies has
been submitted to the Agency.
2.
The final cover was not compacted using a
sheepsfoot roller as required by Condition
No.
14 of Permit No. 1988—248—SP.
3.
Condition No.
14
of Permit No. 1988-248—SP
requires at a minimum one compaction test per
acre p~ lift for the final cover.
From the
information included with the affidavit this
requirement does not seem to have been
fulfilled.
The results of only approximately
one compaction test per acre have been
provided.
4.
According to Allyn Colantino’s
(of IEPA’s
Field Operations Section) report on his June
27,
1990 inspection, in
6 of the 23 borings
the total thickness of the final cover and
vegetative layer was less than 30 inches.
Based on these borings, Mr. Colantino has
identified two areas which did not have
adequate cover on June 27,
1990.
The
affidavit neither acknowledges the
inadequacies discovered by Mr. Colantino nor
does it indicate that these areas were
subsequently redressed.
122—98
5
5.
According to the Affidavit, the fertilizing,
seeding and mulching procedures required by
the. closure plan approved by Permit No.
1988-
248-SP had not been completed (or even begun)
at the time the Affidavit was submitted to
the Agency.
After the above reasons, the Agency cited the following statutory
and regulatory sections that might be violated if the Certificate
of Closure were issued:
Sections 22.17(a) and 39(a)
of the Act,
and 35 Ill. Adm. Code 807.205(a),
807.205(b),
8076205(c),
807.206(a),
807.207(a),
807,210,
807.302, 807.305(c),
807.313,
807.314(e), 807.315, 807.~08(a), 807.502,
and 807.508.
PRELIMINARY MATTERS
Before reaching the substantive merits of this case,
the
Board must rule on Mr. Bradd’s March
1,
1991 Motion to Strike the
Agency’s Amended Denial Letter and the Agency’s Motion to Strike
Mr. Bradd’s March 18,
1991 Reply.
At the outset, we note that, pursuant to the Board’s
procedural
rules.,
a moving party does not have the right to file
a reply except as permitted by the Board to prevent material
prejudice.
35 Ill.
Adm. Code 101.241(c).
Accordingly, because
Mr. Bradd’s reply was not accompanied by a motion for leave to
file a reply, we will not consider the reply in our deliberations
on Mr. Bradd’s Motion to Strike the Agency’s Amended Denial
Letter.
With regard to Mr. Bradd’s motion, Mr. Bradd first argues
that the Agency did not comply with the Board’s January 18,
1991
Order.
(Pet. Motion par. 4).
Specifically, Mr.
Bradd argues
that the letter is not limited to the reasons for the Agency’s
citation of 35
Ill. Adm. Code 807.205(b)
and
(C),
but includes
reasons and rationale which were never contained in either the
April
6,
1989,
or the August 21,
1990 Denial Letters.
(~.
pars.
4,
5).
Mr. Bradd also argues that the Amended Denial Letter
violates Section 39(a)
of the Act and denies him due process of
law.
(~.
par.
7)..
In response, the Agency states that it decided to provide
more information than the Board requested because it realized
that its January
3,
1991 response to Mr. Bradd’s first motion to
strike was the only document that had overtly provided reasons as
to how the various statutes and regulations listed in the
Agency’s August 21,
190 Denial Letter might have been violated.
(Agency Response p.
1).
The Agency also argues that,
if it
issued an amended denial letter that referenced only 35 Ill. Adm.
Code 807.205(b) and
(c),
it would have run the risk that Mr.
Bradd would argue that those sections were the only sections that
122—99
6
might not be met if the Certificate of Closure were issued.
(ia.
p.
2).
Finally, the Agency argues that its amended denial letter
lists the same information that was listed in its August 21,
1990
Denial Letter, and that only certain non—substantive style
changes
(i.e. format changes and the overt statement of the
reasons for citing the various statutory and regulatory sections)
differentiate the amended denial letter from the original.
A review of the Agency’s Amended Denial Letter indicates
that the Agency did indeed reformat its earlier denial letter.
However, the Agency also went beyond the Board’s January
18,
1991
Order requesting it to supply the reasons for its citation of
35
Ill. Adm. Code 807.205(b) and
(c) when it linked the specific
reason(s) why the Act and the regulations might not be met with
each statutory and regulatory section cited in the August 21,
1990 Denial Letter.
As a result, when the Agency provided this
more detailed explanation it,
in effect, impermissibly
supplemented the record.
Accordingly, the Board will strike all
of the information in the amended denial letter with the
exception of the reasoning related to the Agency’s citation of 35
Ill. Adm. Code 807.205(b) and
(c)
before analyzing the Agency’s
reasoning for its citation of the sections.
In its amended denial letter, the Agency provided the
following explanation for its citation of 35 Ill. Adm. Code
807.205(b)
and
(c)
in the August 21,
1990 Denial Letter:
Again, referring to the permit review process,
subsection
(a)
807.205(a))
must be read in conjunction
with subsections
(b) and
(c).
As applied to the
affidavit here, the information required by
(b)
is
specified by the closure plan in Permit No. 1988-248-
SP.
The form,
as stated in
(C),
to provide this
information to the Agency is the affidavit.
The
affidavit here fell short of th.e “all data and
information” requirements of
(a) as no groundwater
assessment or monitoring program was provided, and no
proof of compliance with the sheepsfoot roller,
compaction testing,
final cover, and vegetative seeding
requirements was provided.
35 Ill.
Adin.
Code 807.205 states,
in part as follows:
a)
All applications for permit required under
these Regulations shall contain all data and
information specified in those rules
governing the type of unit or site for which
the permit is required.
b)
The Agency may adopt procedures requiring
such additional information as
is reasonably
122—100
7
necessary to determine whether the waste
management site will meet the requirements of
the Act and Regulations.
c)
The Agency may prescribe the form in which
all information required under these
Regulations shall be submitted.”
Although the Board does not disagree that 35 Ill. Adm. Code
807.205(b)
and
(c) are linked to 35 Ill.
Adm. Code 807.205(a),it
is clear from a review of the section that subsection
(a) relates
to an applicant’s activities while subsections
(b) and
(C)
specify the scope of the Agency’s activities.
Section 39(a)
of
the Act states that the Agency shall issue a permit upon proof by
the applicant that the facility will not cause a violation of the
Act or regulations.
It is inherent from a reading of this
section that it refers to an applicant’s violation of the Act or
regulations rather than the Agency’s violation of the Act or
regulations.
Accordingly, because an applicant cannot violate
subsections
(b) and
(c), we will strike 35 Ill. Adm. Code
807.205(b)
and
(c)
from the Agency’s August 21,
1991 Denial
Letter.
STANDARD OF REVIEW
Permits are granted by the Agency pursuant to Section 39(a)
of the Act which sets forth the requirements for securing a
permit as follows:
When the Board has by regulation required a perniit...it
shall be the duty of the Agency to issue such a permit
upon proof by the applicant that the facility...will
not cause a violation of this Act or of regulations
hereunder....In granting permits the Agency may impose
such conditions as may be necessary to accomplish the
purposes of this Act, and as are not inconsistent with
the regulations promulgated by the Board hereunder.
Section 40(a) (1) of the Act provides that an applicant who
has been denied a permit may petition the Board for a hearing to
contest the Agency’s denial of the permit application.
Ill.
Rev.
Stat.
1989,
ch.
111
½,
par 1040(a) (1).
The standard of review in
a permit appeal is as follows:
The
sole question before the Board is whether the
applicant proves that the application, as submitted to
the Agency, demonstrated that no violation of the
Environmental Protection act would have occurred if the
requested permit had been issued.
Joliet Sand
& Gravel Co.
v. PCB,
163 Ill. App.
3d 830,
833,
516 N.E.2d 955,
958
(3d Dist.
1987); Browning—
122— 101
8
Ferris Industries of Illinois,
Inc.
v. EPA, PCB 84—136
(May 5,
1988),
aff’d No 2—88—0548 slip op.
(2d Dist.
February 3,
1989).
DISCUSSION
At the outset, and before beginning our analysis of this
matter, we wish to address Mr. Bradd’s reiteration of his Section
39(a)
challenge to the Agency’s August 21, 1990 Denial Letter
that is contained in his post-hearing Brief.
Again,
Mr.
Bradd
argues as follows:
1) that the Agency’s letter fails to meet the
requirements of Section 39(a)(4) of the Act because it does not
include a statement of specific reasons why the Act and
regulations might not be met if the Affidavit for Certification
of Closure were approved, but merely lists several statutory and
regulatory citations which may be violated if the Affidavit for
Certification of Closure was granted, and 2) that Section 39(a)
of the Act,
as applied,
is fundamentally unfair and deprives him
of due process of law.
(Pet.
Br. pp.
9-12).
Section 39(a) of the Act requires that the Agency provide an
applicant with a detailed statement of the reasons for denying a
permit application.
Section 39(a)
further provides that such
statements shall include the following information:
(1) the
sections of the Act that may be violated if the permit were
granted;
(2) the provisions of the regulations, promulgated under
the Act, that may be violated if the permit were granted;
(3) the
specific type of information,
if any, that the Agency deems the
applicant failed to provide; and
(4)
a statement of specific
reasons why the Act and the regulations might not be met if the
permit were granted.
In order for an applicant to adequately prepare its case in
a permit review before the Board, the applicant must be given
sufficient information to determine the bases for the Agency’s
determination and thus,
notice of what evidence it needs to
establish its case.
The requirement that the Agency provide the
applicant with the specific sections of the Act and regulations
that support the permit denial
is consistent with the statutory
framework of the Act which requires that the Agency render its
initial permit decision and the Board render its permit review
decision within specified time periods.
This streamlined process
requires that the applicant be provided with the specific
information upon which the Agency based its permit denial so that
the applicant may prepare his case with an eye toward the
issue(s)
on review,
i.e.,
whether the applicant has demonstrated
that no violation of the Act or regulations would occur
if the
permit were granted.
Contrary to Mr. Bradd’s contention, the listing of various
sections of the Act and regulations after the denial reasons does
not invalidate the Agency’s denial letter or render it
12
2—102
9
inadequate.
Mr. Bradd had made no attempt to support his
contention that the Agency has not followed Section 39(a)(4) by
arguing which sections of the:Act and regulations cited by the
Agency are an erroneous bases for permit denial.
The Board
itself reviewed the denial letter and linked the various
statutory and regulatory sections with the denial reasons before
ruling on Mr. Bradd’s first motion to strike the letter.
With
the exception of 35 Ill. Adm. Code 807.205(b)
and
(c), we were
able to make some connection between each cited section and at
least one denial reason.
Admittedly, although the Agency’s
denial letter was not in a format that easily lent itself to
review, the Board cannot say that an applicant is denied
fundamental fairness merely because the Agency’s denial letter is
complicated and requires a detailed analysis by the applicant.
Centralia Environmental Services,
Inc.
v.
IEPA, PCB 89-170
(October 25,
1990).
Therefore, the Board rejects Mr. Bradd’s
contention that the Agency’s denial letter fails to comply with
Section 39(a)(4)
of the Act simply because the Agency did not
itself link the various statutory and regulatory sections to the
denial reasons.
Denial Reason
1
—
Groundwater Monitoring Program
Mr.
Bradd argues that he proposed an adequate groundwater
monitoring program pursuant to the supplemental permit and cites
four reasons in support of his argument.
First,
Mr. Bradd notes
that the Agency,
in its April
6,
1989 letter denying his proposed
groundwater monitoring program,
failed to cite any statute or
regulation that was or would be violated if the proposed program
were approved.
(Pet.
Br.
p.
14).
Second,
Mr. Bradd argues that
the Agency improperly applied its Draft Groundwater Monitoring
Network
(“GMN”) Guidelines when reviewing the proposed program.
(~.
pp.
14-16).
Specifically,
Mr. Bradd argues that the reasons
set forth in the Agency’s April
6,
1989 denial letter are similar
to portions of the Agency’s Draft
GMN
Guidelines and that the
Agency cannot, as a matter of law,
impose or apply the draft
GNN
Guidelines as rules.
(3~.).
Third,
Mr. Bradd argues that the
landfill has always had and continues to have a permitted
groundwater monitoring program and that the proposed program
conforms to the Agency’s Draft
GMN
Guidelines and would not
violate any applicable statutory, regulatory or permit provision.
(Id. pp.
17-18).
Mr. Bradd adds that the record in this matter
contains no evidence of any groundwater violations during the
operation of the landfill, that the landfill has never been cited
in any enforcement proceeding relating to any groundwater
violation,
that quarterly groundwater samples show no violation
of the Act or regulations, and that samples taken from the well
supplying water to the maintenance shed located on the site
indicate that the water is bacteriologically safe to drink.
(ia.
p.
18).
Fourth, Mr. Bradd notes that, even if his current
groundwater monitoring program is inadequate,
the Agency’s
Administrative Procedure #4 provides for the upgrade of
th.e
122—103
10
system during the post-closure period.*
(~.
pp.
18-20).
Mr.
Bradd adds that the Agency arbitrarily applied procedure #4 in
this case because the Agency’s enforcement and application of the
procedure were dependent upon the availability of the Agency’s
resources, and that the procedure is arbitrary on its face
bec~auseit unconditionally allows the Agency to determine when,
or even if, the groundwater monitoring program is to be upgraded.
(~.
19-20).
Finally, Mr. Bradd argues that the Agency’s
determination regarding the adequacy of his groundwater
moniltoring program is arbitrary because the Agency has allowed
some
Illinois landfill facilities to have one or no groundwater
monitoring wells.
(~.
pp.
20-21).
As the Board previously stated in its January 18,
1990
Order, because the April
6,
1990 denial letter referred to
several problems with Mr. Bradd’s proposed groundwater monitoring
proigram and because the August 21,
1990 denial letter referenced
the April
6,
1990 denial letter, the two letters were
inextricably linked.
Section 40(a) (1)
of the Act
(Ill.
Rev.
Stat.
1989,
ch.
111½, par.
1040(a) (1)) provides,
“If the Agency
refuses to grant or grants with conditions a permit under Section
39 of this Act, the applicant may, within 35 days, petition for a
heai~ingbefore the Board to contest the decision of the Agency.”
(emphasis added) (see also 35 Ill.
Adm. Code 105.102(a) (2)).
Because Mr. Bradd never appealed Special Condition 15(b)
of
Supplemental Permit No. 1988-248-SP or the Agency’s April
6,
1989
denial of his proposed groundwater monitoring program within the
above
statutory time frame, he has waived any objection to the
Agency’s imposition of Special Condition 15(b)
and its denial of
his proposed groundwater monitoring program.
Further, Mr. Bradd,
through his arguments,
is challenging the imposition of Special
Condition 15(b) rather than the fact that he performed
groundwater monitoring required by the condition.
In light of
these factors, the Board will not review either Special Condition
15(b)
or the validity of the Agency’s April
6, 1989 Denial Letter
at t:his juncture.
To do otherwise would encourage permit
applicants to delay appealing an Agency denial until a subsequent
denial appeal arises.
It also would result in the Board
performing a ~
novo review of the closure plan at the time of
subm~issionof the Affidavit for Certification of Closure.
Moreover, we find that the Agency did not need to review the
*Administrative Procedure #4
is an internal Agency procedure
entitled “Procedure for Closure
of
Solid
Waste
Landfills
(Non-
Hazardous) under 807 Subpart E”.
Paragraph 1(4) of Administrative
Procedure #4 provides that facilities with deficient groundwater
monitoring systems should be made to upgrade before they close if
the Agency has the resources to do so; otherwise the Agency will
allo~qthe facilities to upgrade during post-closure.
(Pet.
Ex.
17)..
122—104
11
contents Qf the Agency’s April 6,
1989 Denial Letter or Mr.
Bradd’s proposed groundwater monitoring program simply because
both were referenced in the Agency’s August 21,
1990 Denial
Letter.
Rather, the fact that Special Condition 15(b)
of
Supplemental Permit No. 1988—248-SP had not been satisfied was a
sufficient basis for the Agency to deny Mr. Bradd’s Affidavit for
Certification of Closure and not, issue a Certificate of Closure
for the landfill.
Specifically, the Certificate of Closure is
issued pursuant to 35 Ill. Adm. Code 807.508(b)
which provides,
in part,
as follows:
b.
If the Agency finds that the site has been
closed in accordance with the specifications
of the closure plan,
and the closure
requirements of this Part, the Agency shall:
1)
Issue a certificate of closure for
the site;
(Emphasis added).
~e
cannot expect the Agency to approve an Affidavit for
Certification of Closure and issue a Certificate of Closure when
an applicant has not complied with his closure plan.
,
In light of
the above, we uphold denial reason
1 and will not address Mr.
Bradd’s substantive arguments.
Denial Reason
2
-
Sheepsfoot Roller Compaction
Mr. Bradd acknowledges that landfill machinery rather than a
sheepsfoot roller was used to compact the final cover for
i½
acres of land at the landfill.
(Id. p.
21).
He notes, however,
that when Mr. Colantino learned of this during his June 27,
1990
inspection, he stated that the methodology was adequate because
the final cover was installed in small lifts.
(Id. p.
21).
Mr.
Bradd adds that neither the Act nor Board regulations mandate
compaction of the final cover with a sheepsfoot roller, that the
Agency arbitrarily applies its “policy” of requiring a sheepsfoot
roller because, at least at one other site,
it did not require a
sheepsfoot roller for compaction.
~
p. 22).
Finally, Mr.
Bradd notes that this denial reason should not serve as a basis
to reject the Certificate of Closure because a sheepsfoot roller
is only one of several methods to achieve the required level of
compaction and because compaction tests indicate that the
landfill surpassed the 90
Standard Proctor Density required by
the
Agency.
(~.).
The
Agency
challenges
the
credibility
of
Mr.
Bradd’s
assertions
regarding
the
representations
of
Mr.
Colantino.
(Resp.
Br.
p.
6).
Specifically, the Agency notes that although the
record indicates that Mr. Colantiho told Mr. Bradd to put the
fact that he was installing the final cover in small lifts with
122— 105
12
landfill machinery in the certificate of closure, Mr. Bradd did
not mention the small lifts in the Affidavit for Certification of
Closure.
(u.).
The Agency also notes that the intra-lift and
inter—lift compaction produced by a sheepsfoot roller is superior
to landfill machinery and that Mr. Bradd’s argument regarding the
use of landfill machinery at another site is meaningless without
an examination and comparison of the other site’s features with
this landfill’s characteristics.
(~.
pp.
6-7).
A review of the record indicates Mr. Colantino talked with
Mr.
Bradd and Mr. Timothy Sheehan, an environmental engineer with
N. Rapps
& Associates,
Inc.,
during the June 27,
1990
inspection.
Mr. Sheehan testified that, during his inspection,
Mr. Colantino stated that the method of compaction at the site
was adequate after Mr.
Bradd informed him that the final cover
was installed in small lifts.
(R.
135).
Mr. Sheehan also
testified that Mr. Colantino directed Mr. Bradd to put such
information in his Affidavit of Closure.
(Id.).
The Agency did
not rebut Mr. Sheehan’s assertions at hearing.
However, Mr.
Colantino did confirm that he asked Mr.
Bradd if he had put lifts
down of eight inches or less and if compaction tests had been
performed on those lifts.
(R.
253-54).
Moreover, Mr. Colantino,
in his August 14,
1990 inspection report,
stated, “According to
Mr. Sheehan,
less than eight inch lifts were applied. Compaction
was not achieved by the use of a sheep foot as required.
Instead, rubber tired vehicles, which assisted in the
transportation of the soil, were used to compact the cover.”
(Pet.
Ex.
13; IEPA Ex.
5,
p.
142).
Finally, Mr.
Bradd noted in
his Affidavit that the final cover was placed in small lifts and
“mechanically compacted”.
(Pet.
Ex.
11, Attachment II, Paragraph
2)
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 In the Matter of: Pielet
Brothers’ Trading,
Inc., AC 88—51,
101 PCB 131
(July 13,
1989),
Pielet deposited 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
122—106
13
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.”
(~.
p.
9,
101 PCB at 140).
Finally, 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.
At hearing,
Mr. Sheehan specifically stated that Mr.
Colantino told him that Mr. Bradd’s method of compaction was
adequate.
Mr. Colantino’s direct testimony does not refute or
contradict Mr. Sheehan’s testimony, nor did the Agency rebut Mr.
Sheehan’s testimony either on cross—examination or during closing
arguments.
Based on our review of the above evidence as well as
the case law, we conclude that Mr. Colantino represented that the
compaction at the site would be adequate, that it was not
unreasonable for Mr.
Bradd to have relied on such representation,
and that the Agency is estopped from now citing denial reason
2
as a basis for its denial of Mr. Bradd’s Affidavit for
Certification of Closure.
Accordingly, we find that denial
reason
2
is an insufficient basis for the Agency’s denial of Mr.
Bradd’s Affidavit of Certification of Closure and therefore will
strike
it.
Denial
Reason
3
—
Compaction
Tests
Mr.
Bradd argues that neither the Act nor Board regulations
require compaction testing for each lift in each acre of a
landfill.
(Pet.
Br.
p.
23).
Mr. Bradd adds that the per acre,
per lift compaction testing is not a formal policy and that the
Agency does not universally apply the requirement.
(a.).
In
fact,
Mr. Bradd notes that the record indicates that this
requirement is unique to the case at hand,
and that Mr. James
Schoenhard of the Agency’s Division of Land Pollution Control
advised Mr. Sheehan to disregard the per lift language, and
stated that the tests would, be meaningless because there is no
recognized minimum compaction standard with respect to the lower
lifts, and that he would require compaction testing for only the
top lift and a demonstration of at least 90
Standard Proctor
Density.
(~.
pp.
23,
24).
Mr. Bradd also argues that the
evidence indicates that testing the lower lifts is unnecessary
because inadequate compaction on the lower lifts will result in
the failure to achieve the required compaction on the top lift.
122— 107
14
(~.
p. 24).
Finally, Mr.
Bradd asserts that the final lift of
cover at the landfill surpassed the 90
Standard Proctor Density
compaction requirement.
(~.).
First, the Agency challenges Mr. Bradd’s assertions
regarding Mr. Schoenhard’s representations to Mr.
Sheehan.
(Agency Br.
p.
7).
Specifically,
it questions why Mr. Bradd did
not seek confirmation of Mr. Schoenhard’s representations in
writing or mention them in his Affidavit for Certification of
Closure.
(~.).
The Agency also questions why Mr.
Bradd never
appealed this condition (or the condition requiring the use of a
sheepsfoot roller) when Supplemental Permit No. 1988-248-SP was
issued or when it was modified via the supplemental permit
process
(i.e. when Mr. Bradd submitted his proposed groundwater
monitoring program).
(j~.).
Mr. Sheehan testified that he talked with Mr. Schoenhard and
told him that the per lift compaction requirement was ambiguous
because Mr. Bradd did not have to meet a percent compaction for
each lift.
(R.
180-81).
Mr. Sheehan also testified that Mr.
Schoenhard responded as follows,
“Tim,
you
‘re right,
all you
need to do for your certification is certify that you have got 90
percent standard compaction proctor on the last lift.”
(u.).
The Agency did not rebut the testimony either on cross-
examination or in its closing arguments.
Based on our review of the above evidence as well as the
case law cited in denial reason
2, we conclude that Mr.
Schoenhard represented that the per lift,
per acre compaction
requirement need not be met, that it was not unreasonable for Mr.
Bradd to have relied on such representation,
and that the Agency
is estopped from now citing denial reason
3 as a basis for its
denial of Mr. Bradd’s Affidavit for Certification of Closure.
Accordingly, we find that denial reason
3
is an insufficient
basis for the Agency’s denial of Mr. Bradd’s Affidavit of
Certification of Closure and therefore will strike it.
Denial Reason
4
-
Final Cover and Vegetative Layer Thickness
In his Brief,
Mr. Bradd first argues that, contrary to the
denial reason, the record demonstrates that the thickness of the
final cover and vegetative layer meet the requirements of the
closure plan and exceed the requirements of the Board’s
regulations.
(Pet.
Br. p.
25).
He adds that, pursuant to an
agreement with Mr. Colantino,
he added the required cover and
certified in his Affidavit that he took corrective action.
(~.
pp.
25-26).
Mr. Bradd also notes that 35 Ill.
Adm. Code
807.305(c)
only requires a compacted layer of 24
inches of
material rather than 30 and that, although certain borings
indicated a cover of less than 30 inches, each one acre grid had
at least one probe that demonstrated final cover of at least 30
inches and no probe indicated a cover of less than 24 inches.
122—108
15
~
p.
26)
The Agency does not dispute that Mr. Bradd and Mr. Colantino
reached an understanding and that Mr. Bradd was to provide
information on this matter in his Affidavit.
(Agency Br.
P.
8).
The Agency,
however, argues that Mr. Bradd’s Affidavit does not
show which borings indicated inadequate cover, and that the
Affidavit contradicts Mr. Colantino’s observations because it
suggests the first 15 borings satisfied the’30 inch cover
requirement.
(u.).
It adds that certain photographic evidence
relied on by Mr. Bradd does not demonstrate that he applied
adequate cover.
(I~.)
During Mr. Colantino’s June 27,
1990 inspection of the
landfill, Mr. Colantino made a total
of 23 borings among
15 one-
acre grids
(with a total of five borings in grid 2, four borings
in grid 3, and two borings in grid 9) to determine the thickness
of the final cover and vegetative layer.
(Pet.
Ex.
13).
He
notified Mr. Bradd and Mr. Sheehan that eight of the borings
(four borings in grid 2, three borings in grid 3, and one boring
in grid 9) revealed less than 30 inches of cover.
(R.
238—239).
Specifically, grids
2,
3, and 9 had approximately 26 inches,
26
inches, and 27 inches ‘of cover,
respectively.
(R.
238).
He also
stated that additional cover was needed, and directed Mr. Bradd
to certify in his Affidavit that additional cover was,
in fact,
added.
(R.
152, 239-240).
Mr. Bradd agreed to apply the
additional cover.
(R.
152,
240; Pet.
Ex.
4; Pet. Ex.
11,
Attachment II).
At hearing, Mr. Sheehan testified that Mr. Colantino stated
that there would be no need to complete any additional borings or
probes to verify the fact that additional soil was added,
if Mr.
Bradd actually added additional soil and mentioned that fact in
his Affidavit.
(R.
154).
Mr. Colantino’s direct testimony does
not refute or contradict Mr. Sheehan’s testimony, nor did the
Agency rebut Mr. Sheehan’s testimony either on cross—examination
or during closing arguments.
Mr. Sheehan also testified that Mr.
Bradd applied the additional cover to the eastern and
southeastern corner of the site between June 27 and 29,
1990, and
that Mr. Bradd mentioned the corrective measures in his
Affidavit.
(R. 152,
154—55,
240; Pet.
Ex.
4; Pet. Ex.
11,
Attachment II).
Also,
Mr. Bradd presented certain photographs
taken on June 29,
1990 and a bill for earth moving at hearing as
proof that he added additional cover to the areas
in question on
June 27,
28, and 29,
1991.
(Pet.
Exs.
4,
11
—
Addendum,
16).
The above evidence indicates that Mr. Bradd did indeed apply
additional cover.
Because the Agency never re-inspected the site
to verify that Mr. Bradd applied the required amount of cover,
however, we cannot definitively state that the landfill has a
final cover of exactly 30 inches in all places.
Specifically,
the photographs and Petitioner’s Exhibit
4 do not indicate the
122—109
16
exact amount of cover that was added or where it was placed.
We
conclude, however, that Mr. Colantino represented to Mr. Bradd
that no additional borings would be needed if Mr. Bradd added the
additional soil and verified in his Affidavit that he took such
action.
In his Affidavit, Mr.
Bradd stated,
“Presently,
additional
top soil placement and grading is being performed along the
eastern and southeastern corner of the site.”
(Pet.
Ex.
Il,
Attachment II).
The question now becomes whether the above
representation was adequate.
Because Mr. Colantino never
specified the degree of specificity that was to be provided in
the Affidavit, we cannot conclude that Mr. Bradd’s statement was
inadequate.
Rather, Mr.
Bradd relied on Mr. Colantino’s
representations and provided the requested information in his
Affidavit.
Moreover, Mr. Bradd’s and Mr. Sheehan’s testimony
indicates that Mr. Bradd added the required amount of cover to
the site.
This testimony was never rebutted.
If the Agency
wanted more proof that additional cover had been added,
it should
have either specified the proof that Mr. Bradd was to provide in
his Affidavit,
or re-visited the site and rebutted Mr. Bradd’s
and Mr. Sheehan’s testimony.
Based on our review of the above
evidence as well as the case law cited in denial reason
2, we
conclude that it was not unreasonable for Mr. Bradd to have
relied on Mr. Colantino’s representations, and that the Agency is
estopped from now citing denial reason
4 as a basis for its
denial of Mr. Bradd’s Affidavit for Certification of Closure.
Accordingly, we find that denial reason
4
is an insufficient
basis for the Agency’s denial of Mr. Bradd’s Affidavit of
Certification of Closure and will strike the denial reason.
Denial Reason
5
—
Fertilizing,
Seeding, and Mulching
Mr.
Bradd argues that he complied with the closure plan and
consulted with an agronomist.
(Pet.
Br.
p.
27).
He also argues
that, even if one were to conclude that the landfill was not a
completed site as of July
1,
1990, because it was not seeded by
that date, the Board should find that the landfill was
substantially completed by July 1,
1990,
because the failure to
seed by that date constitutes a de minimis deviation from the
closure plan.
(~.
p.
28).
He adds that it is appropriate for
the Board to find that he complied with the closure plan even
though the seeding occurred after June 30,
1990 when one
considers the fact that the Agency has great leniency with which
to deal with deficient groundwater monitoring systems (see Ex.17-
Administrative Procedure #4, Paragraph 4).
(~4.
p.
29).
The Agency questions why Mr.Bradd could not have planted
temporary cover during the last week of June, and notes that Mr.
Bradd did not plant the final cover in the Fall of 1990 when
there were conducive conditions.
(Agency Br.
p.
9).
The Agency
also arques that Mr. Bradd knew that the final cover would be
122—110
17
planted during the summer and that he had at least two months
(i.e.
from May 5, .1990 to July
1,
1990)
to apply to the Agency to
modify the final cover planting requirements of his closure plan
if he could not meet the July
1,
1990 deadline.
(n.).
The
Agency concludes that, as a result of Mr. Bradd’s failure to
modify, the closure plan and the fact that no cover was planted by
July 1,
1990,
it had no choice by to cite Mr. Bradd for this
deficiency.
(j~.).
At hearing, Mr. Sheehan testified that he consulted with Mr.
David Franzen, an agronomist of Shields Soil Service.
(R.
157).
He also testified that,
because the time of the year was not
conducive to establishing any vegetation,
Mr. Franzen recommended
a temporary cover of lime (fertilizer) and oats to stabilize the
final cover and .prevent soil erosion until growing conditions
were more conducive to plant the final cover.
(~.
p.
157—58;
Pet.
Ex.
11
-
Attachment II, Figure No.
5).
The lime and oats
were applied during the first week of July 1990,
and the record
demonstrates that plant growth had occurred as a result of the
July,
1990 planting.
(R.
158; Pet.
Exs.
2,
11
-
Attachment II,
Addendum).
The ‘closure plan for the landfill specifies seeding,
fertilizing, and mulching procedures in accordance with the
Illinois Department of Transportation’s “Standard Specifications
for Road and Bridge Construction” requirements.
(Pet.
Ex. 7A p.
5).
It also states that
“a local agronomist will be consulted to
review seeding and fertilizer specs and,
if needed, recommend
modifications to ensure vegetative growth”.
(~.).
The
unrebutted testimony of Mr. Sheehan shows that this is exactly
what Mr.
Bradd did.
When the Agency approved Mr. Bradd’s closure
plan,
it knew that the seeding process could be modified in
accordance with an agronomist’s recommendation.
As a result, the
Agency. cannot now complain that Mr. Bradd did not comply with the
closure plan.
Nor can it question why Mr. Bradd did not plant
cover in the Fall of 1990 or attempt to modify the plan.
As previously stated,
a Certificate of Closure is issued pursuant
to 35 Ill.
Adm. Code 807.508(b)
which provides,
in part,
as
follows:
b.
If the Agency finds that the site has been
closed in accordance with the specifications
of the closure plan, and the closure
requirements of this Part,
the Agency shall:
1)
Issue a certificate of closure for
the site;
(Emphasis added).
Because Mr. Bradd complied with this requirement of his closure
plan, we find that denial reason
5
is an insufficient basis for
122—111
18
the Agency’s denial of Mr. Bradd’s Affidavit of Closure and will
strike it.
Post Closure Care Period
Section 22.17 of the Act governs the period of time that a
landfill owner is required to monitor the site after the site is
closed.
During the 1988 Session of the 85th General Assembly,
House Bill 3668 was introduced to increase the post closure care
period from five to 15 years.
The bill was signed into law on
August 30,
1988
(Public Act 85-1240)
and became effective on
January
1,
1989.
On May 12,
1988 an amendment to the law was
adopted which delayed the date that the 15 year monitoring period
went into effect until July 1,
1990.
As previously stated, Mr. Bradd requests that the Board find
that the post closure care period applicable to the landfill is
five years rather than 15 years.
He argues that the landfill is
subject to the five year post closure care period because the
evidence indicates that the site was closed and completed prior
to July 1,
1990.
(Pet.
Br. pp.
31-36).
The Agency,
on the other
hand, maintains that the landfill was not closed and completed as
of July 1,
1990 because all of the requirements of the landfill’s
closure plan had not been satisfied or met by that date.
(Resp.
Br. pp.
1—2,
13—15).
Section 22.17(a) provides as follows:
The owner and operator of a sanitary landfill
site shall monitor gas, water and settling at
the completed site for a period of 15 years
after the site is completed or closed,
or
such longer period as may be required by
Board or federal regulation.
(Emphasis added).
Because the Board has upheld one of the Agency’s denial
reasons, we conclude that the Agency was justified in not
approving Mr. Bradd’s Affidavit for Certification of Closure and
not issuing a Certificate of Closure for the landfill.
Moreover,
because the activities described in the closure plan have not
been completed, we cannot say that the landfill was closed or
completed prior to the July 1,
1990 deadline.
Accordingly, the
Bradd Sanitary Landfill is subject to a
15 year post-closure
monitoring period.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
122—112
19
For the foregoing reasons, denial reasons 2,
3,
4,
and
5
are
reversed.
Denial reason
1 is upheld and,
therefore,
the Agency’s
denial of Mr. Bradd’s Affidavit for Certification of Closure and
refusal to issue a Certificate of Closure is affirmed and the
Bradd Sanitary Landfill is subject to a 15 year post-closure
monitoring period.
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1041)
provides for the appeal of
final Orders of the Board within 35 days.
The Rules of the
Supreme Court establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certifies that the above Opinion and Order was
adopted on the
~7~-’
day of
________________,
1991,
by a
voteof
7-c
.
/
~
‘~7.
~
Dorothy M./Gunn, Clerk
Illinois 1~ol1utionControl Board
112— 113
