ILLINOIS POLLUTION CONTROL BOARD
July 25, 1991
EARL R. BRADD,
as owner of
the BRADD SANITARY LANDFILL,
)
Petitioner,
PCB 90—173
V.
)
(Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
On June 13,
1991,
Earl R. Bradd, as owner of the Bradd
Sanitary Landfill, filed a motion to reconsider the Board’s May
9,
1990 Opinion and Order affirming the Illinois Environmental
Protection Agency’s
(“Agency”)
August 21,
1990 decision to reject
Mr. Bradd’s Affidavit of Certification of Closure for the Bradd
Sanitary Landfill.
The Agency has not filed a response to the
motion.
Mr. Bradd requests the Board to vacate its May 9,
1991
Opinion and Order in this matter.
Specifically, Mr. Bradd
requests the Board to vacate that portion of the Opinion and
Order that affirms the Agency’s denial reason
1, which relates to
Mr. Bradd’s groundwater monitoring program, and remand the matter
to the Agency:
1)
with directions to conduct an independent
review of Bradd’s groundwater monitoring plan
on its merits to determine if it meets Agency
(sic)
closure requirements; and
2)
to the extent that the Agency believes that
the plan does not meet Agency
(sic)
groundwater monitoring requirements, afford
Mr. Bradd the opportunity to submit
additional information and upgrade h~s
groundwater monitoring closure plan.
The Board grants the motion to reconsider.
For the
following reasons,
we vacate our previous finding on denial
reason
1 and remand this matter to the Agency for the purposes
11n
his
motion,
Mr.
Bradd
refers
to
“IEPA”
or
“Agency”
regulations.
We wish to note,
however,
that the regulations at
issue are Board regulations.
124—183
2
articulated by Mr.
Bradd above.
To review,
on October 14,
1988, the Agency issued a
supplemental permit to Mr. Bradd’s developmental and operating
permits in which it approved Bradd’s closure and post—closure
plan.
Condition 15(b) of that permit required Mr. Bradd to
submit a revised groundwater monitoring plan, via a supplemental
permit application, within 90 days.
Although Mr. Bradd submitted
his revised groundwater monitoring plan on January 13,
1989, the
Agency rejected the plan in an April
6,
1989 letter.
That letter
stated,
“Es)hould you wish to reapply or have any questions
regarding this application, please contact (the Agency”.
On
August 21,
1990, the Agency denied Mr. Bradd’s Affidavit for
Certifications of Closure and determined that it would not issue
a Certificate of Closure,
in part, because Mr. Bradd had not
satisfied condition 15(b)
of his closure and post-closure plan.
Specifically, the denial reason
I of that letter stated as
follows:
Condition 15 of Permit No. 1988-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.
We are concerned with the fact that the Agency based its
August 21,
1990 denial of Mr. Bradd’s Affidavit for Certification
of Closure on his alleged failure to submit an adequate
groundwater monitoring plan pursuant to condition 15 of his
closure and post—closure care plan.
Our concern is magnified by
the fact that the Agency offered Mr. Bradd an opportunity to
submit another supplemental permit application in its April
6,
1989 denial letter, but did not specify a time frame for such
action.
Because no time frame was specified and because Mr.
Bradd was planning to closing his facility prior to July 1,
1990,
we cannot say that it was unreasonable for Mr. Bradd to forego
submission of another supplemental developmental and operating
permit application and instead address the Agency’s groundwater
concerns in his Affidavit for Certification of Closure.
Moreover, neither Mr. Bradd’s failure to submit additional
information prior to the submission of his Affidavit for
Certification of Closure nor his failure to appeal the April
6,
1989 permit denial should preclude him from addressing the
groundwater issue in his Affidavit for Certification of Closure
or affect his right to appeal the Agency’s denial of his
124—184
3
Affidavit of Certification of Closure.
In other words,
Mr. Bradd
had the right to have the Agency to conduct
a substantive review
of his Affidavit and not merely back-reference the April
6, 1989
rejection of his prior revised groundwater monitoring program.
However, that appears to be exactly what happened in this
instance.
Specifically, there is no indication that the Agency
reviewed the merits of Mr. Bradd’s groundwater monitoring
submissions in support of Affidavit for Certification of Closure,
or otherwise interacted with Mr. Bradd,
to determine if Mr. Bradd
had an adequate groundwater monitoring plan at the time of
closure and whether the site had been closed “in accordance with
the specifications of the closure plan”.
(see 35 Ill.
Adm. Code
807.508(b)).
As a result, the Agency,
in effect, denied Mr.
Bradd the opportunity to appeal the merits of the Agency’s denial
of his Affidavit of Certification of Closure and impertaissibly
used the permit process as a means of enforcing an alleged permit
violation (i.e.
not having an adequate groundwater monitoring
program).
(see
Waste Management v.
IEPA, PCB 85-85,
61, and
68-,
60 PCB 173
(October
1, 1984), aff‘d sub nom. IEPA v.
IPCB and
Waste Management
v.
PCB,
138 Ill. App.
3d 550,
486 N.E.2d 293
(3rd Dist.
1985), aff’d 115 I11.2d 65,
503 N.E.2d 343
(1986)).
Finally, we wish to note that the Agency, while advising Mr.
Bradd that he could reapply or seek further information, failed
to mention,
in its April
6, 1989 denial letter, that Mr. Bradd
had a right to appeal its decision within 35 days.
We suggest
that such language would have eliminated any confusion as to
whether the Agency’s April
6,
1989 determination was a final
action.
(see Marjorie Cami~bellv.
IEPA, PCB 91-5
(June
6,
1991),
Johnson v. State Employees Retirement System,
155 Ill. App.
3d
616,
508 N.E.2d 351
(1st Dist 1987)).
Accordingly, for the foregoing reasons, we vacate our
previous finding on denial reason
1 and remand this matter to the
Agency to conduct an independent review of Mr. Bradd’s
groundwater monitoring plan on its merits to determine if it
meets the Board’s closure requirements.
In making this ruling,
we emphasize that the Agency should handle this matter as it
would an initial permit application and ensure that Mr. Bradd is
treated as any other permit applicant in affording him the
opportunity to submit additional information.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Boar4,. hereby ceit1~fie~
that the above Order was adopted on the
~-‘~-~
day of
1991, by a vote
g~
_______
Illi
~2-U
Board
124—185