ILLINOIS POLLUTION CONTROL BOARD
October 24,
1991
D
& B REFUSE SERVICE,
INC.,
)
Petitioner,
v.
)
PCB 89—106
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
FRED
C.
PRILLAHAN,
MOHAN,
ALEWELT
&
PRILLAMAN,
APPEARED
ON
BEHALF
OF
PETITIONER.
MARK V. GURNIK,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
APPEARED
ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by M.
Nardulli):
This matter is before the Board pursuant to
a petition for
review filed June 29, 1989 by petitioner D
& B refuse Service Inc.
(D & B) pursuant to Section 40 of the Environmental Protection Act
(Act).
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1040.)
D
& B
seeks
review
of
the
Agency’s denial
of
D
&
B’s
closure/post—
closure
care
plan
(CPC
plan)
for
its
Loveall
landfill
near
Sullivan,
Illinois.
A
hearing was
held
in
Sullivan,
Moultrie
County,
Illinois on June 27, 1991 at which no members of the public
attended.
FACTS
D
&
B owns and operates the Loveall landfill near
Sullivan,
Illinois.
The site consists of 33.5 acres,
30 acres of which have
been
filled
and
of
which
29
acres
have
been,
or will shortly
receive,
final
cover.
The Agency granted D
&
B
a development
permit for solid waste disposal in 1974 and an operating permit in
1976.
(R.
Ex.6,
12.)
In response to the Agency’s December
14,
1988 compliance inquiry letter
(R. Ex.
64, 66), D & B submitted its
application for approval of its CPC plan
(R.
Ex.
67).
On May 31,
1989, the Agency denied the permit application listing six reasons
for denial.
(R. Ex.
73.)
On June 29, 1989, D & B filed its petition for review with the
Board seeking reversal of the Agency’s denial.
On June 27,
1991
a
hearing
was
held
at which
D
&
B
and
the
Agency
appeared.
However, D
& B failed to present testimony or evidence in support
of its position that the Agency incorrectly denied approval of its
CPC plan, nor did D
& B make any arguments in support its petition
126—583
2
for review.
The hearing officer set a briefing schedule; however,
D
& B failed to file a post-hearing brief, choosing instead to rely
solely upon its petition
for review and
the Agency record.
On
September 13,
1991,
the Agency filed ~itspost-hearing brief.
DISCUSSION
D
&
B’s
petition
for
review
challenges
the
Agency’s
characterization of the CPC plan as a permit application.
D
&
B
asserts’that the Board’s regulations (35 Ill. Adju. Code 807.206(c),
807.501(b),
807.503
and
807.523(a))
provide
that
closure/post—
closure
care
plans
are
conditions to
existing permits and not
separate permit applications.
The Agency relies upon John Sexton Contractors
Co.
v.
IEPA,
PCB 88-139 at 4-5
(February 23,
1989), Sexton Filling and grading
Contractors Corp.
v. IEPA, PCB 88-116 at 6 (June 22, 1980) and John
Sexton Contractors Co.
v. PCB,
558 N.E.2d 1222
(1st Dist.
1990)
in
support of its position that it correctly treated the CPC plan as
a permit application.
In John Sexton, the Board stated that “the
initial submission of
a closure plan
...
constitutes
a permit
application.”
(PCB 88-139 at 5.)
The appellate court reviewed the
Board’s interpretation of its closure/post-closure regulations and
upheld the Board’s determination
•as not being plainly erroneous.
(John Sexton Contractors Co.
v. PCB, 558 N.E.2d at 1228-29.)
The
Agency’s
denial
letter
states
that
“t)his
will
acknowledge receipt
of your Application for Permit to modify
a
solid waste management site” and that “your
permit application
to modify
is denied.”
(R.
Ex.
43.)
The Board notes that D
&
B
fails to argue any prejudice resulting from the Agency’s treatment
of
the CPC plan
as
a
permit
application or why such treatment
should result in reversal of the Agency’s decision.
It is unclear
whether D & B’s argument is procedural in nature (ie., a contention
that the Agency failed to adhere to its deadline for issuing its
denial letter) or substantive (ie., the Agency applied an incorrect
standard in reviewing D
& B’s CPC plan).
In any event, we disagree
with D
& B’s contention.
D
& B correctly states that the Board’s
regulations provide that CPC care plans will be included in permits
as
conditions.
For
example,
Section
807.206(c)
provides
that
“all
permits
issued
after
March
1,
1985
shall
include
the
following conditions
...
a)
closure plan
a
post—closure care
plan if required
...
.“
However,
these regulations were not in
effect at the time D
& B’s development and operating permits were
issued
in
1974
and
1976,
respectively.
(See,
John
Sexton
Contractors
Co.
v.
IEPA,
PCB 88-139 at
4—5
(February 23,
1989),
citing,
9
Ill.
Reg.
6723
(May
10,
1985)
and
9
Ill.
Reg.
18943
(December 6.
1985).)
Hence,
the Agency properly treated D
&
B ‘S
CPC care plan as a modification to an existing permit.
Moreover,
in reviewing the Agency’s decision, the Board applies the “permit
appeal
standard
of
review”
of
whether
the
Agency
correctly
126—584
3
determined that the applicant failed to demonstrate compliance with
the Act and applicable regulations.
(Robertson-Ceco Corp.
v.
IPCB,
No.
3—91—0165,
slip op.
at 5
(3d Dist.
September 17,
1991).)
The Board also disagrees with D & B’s contention that the only
information required to be submitted in a CPC plan are those eight
items
set
forth
in
35
Ill.
Adin.
Code
807.503(c).
Section
807.5~3(c)specifically provides that a “closure plan shall include
as a minimum” eight specific items.
The wording of this provision
establishes that it is not an exclusive listing.
Moreover, D & B’s
contention ignores the existence of the general closure performance
standard provision of
35
Iii.
Adin.
Code
807.502 and the post-
closure plan minimum requirements of 35
Ill. Adm. Code 807.523.
D
& B also challenges four of the Agency’s denial reasons.
As noted
above,
D
& B failed to present evidence at hearing
in
support
of
these
contentions
or
to
argue
these
contentions
at
hearing.
Additionally, D
& B failed to file
a post-hearing brief
with the Board.
D
& B relies solely upon its petition for review
and the Agency record in support of reversal of the Agency’s permit
decision.
The Agency alleges that D
& B has failed to carry its
burden
of
proof
and,
therefore,
the Agency’s decision must be
affirmed.
The Agency is required to issue a requested permit “upon proof
by the applicant that the facility will not cause
a violation of
the Act or regulations.”
(Ill. Rev. Stat.
1989,
ch..
111 1/2, par.
1039 (a).)
In reviewing a CPC plan, the Agency “must assess whether
the proposed CPC care plan will minimize the need
for
further
maintenance and will minimize or eliminate release of wastes from
the landfill to the extent necessary to prevent threats to human
health or the environment.”
(John Sexton Contractors Co.
v. PCB,
558 N.E.2d at
1229;
see also,
35
Ill.
Adm.
Code 807.502.)
No
hearing is held before the Agency reaches its permit decision.
The
first opportunity for a hearing is at the Board level.1
(Ill. Rev.
Stat.
1989,
ch.
111
1/2,
pars.
1039,
1040.)
The Agency record
contains the permit application submitted by the applicant and any
other
information
relied
upon
by
the
Agency
in
reaching
its
decision.
Because
the Board reviews the Agency’s decision based
upon the application as submitted to the Agency, as a general rule
the applicant may not introduce new evidence at the Board hearing.
(cite Joliet Sand
&
Gravel)
The sole issue before the Board
is
whether
the
permit
application
as
submitted
to
the
Agency
demonstrates compliance with the Act and regulations.
(Id.)
To
prevail before the Board, D & B has the burden of establishing that
1
While the Board reviews the Agency’s permit decision, it
does not apply any standard of deference to the Agency’s
determination because no hearing is held until review is
sought
before
the
Board.
(IEPA
v.
PCB, 486 N.E.2d 293,
294
(3d
Dist.
1985),
aff’d,
503
N.E.2d 343
(1986).)
126—585
4
the Agency incorrectly determined that the proposed CPC plan would
result in violations of the Act or regulations.
(3~.;
Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par. 1040(a).)
Because the Board’s review in a permit appeal is limited to
whether
the
Agency
correctly
determined
that
the
application
package as submitted by the applicant demonstrates compliance,
we
do not agree
with the Agency’s contention
that
the failure to
present
evidence
at
hearing
and
file
a
post—hearing
brief
constitutes
a failure to meet the applicant’s burden
of proof.
However’,
“the
Board
is
not simply
a
depository
in
which
the
applicant)
may
dump
the
burden
of
argument
and
research.”
(Williams
v.
Danley Lumber
Co.,
472 NE.2d
586,
587
(2d Dist.
1984).)
The appellate court has stated that “an
appellant may
not make a point merely by stating it without presenting arguments
in support of it” such that the court may deem waived any
issue
which has not been adequately presented to the
court.
(In re
Application of Anderson, 516 N.E.2d 860, 863
(2d Dist. 1987).)
The
court
has also refused to
consider arguments where
appellant’s
brief fails to reference those portions of the record supporting
reversal.
(Mielke v
Condell Memorial Hospital, 463 N.E.2d 216
(2d
Dist.
1984).)
Although the Board rejects the Agency’s contention
that D & B has failed to meet its burden, an applicant who does not
participate at hearing and fails to file a post-hearing brief risks
waiver of arguments in its appeal to the Board.
It
is well established that the Agency’s denial
statement
frames the issues on review before the Board.
(Ill.
Rev.
Stat.
1989,
ch.
ill 1/2,
par. 1039(a); Centralia Environmental Services
v. IEPA, PCB 89-170 at 8
(October 25,
1990).)
“In a permit appeal
review before the Board,
the burden of proof
is on the applicant
to demonstrate that the reasons for denial detailed by the Agency
in its 39(a)
denial statement are inadequate to support a finding
that
permit
issuance
will
cause
a
violation
of
the
Act
or
regulations.”
(Centralia Environmental Services v.
IEPA, PCB 89-
170 at
8
(October 25,
1990), citing, Technical Services Co.,
Inc.
v.
IEPA,
PCB 81-105
at
2
(November
5,
1981).)
Here,
D
&
B has
failed to challenge all of the Agency’s denial
reasons.
D
&
B
fails to seek review of denial reason
no.
1 which provides that
“t)he
applicant shall provide either a closure/post—closure care
plan with cost estimates reflecting closure of covered,
but not
certified areas or provide the Agency with certifications of all
closed areas
(approximately 32.4 acres)
along with cost estimates
for the active area (approximately 1 acre).
Sections 807.503 and
807.598.”
(R.
Ex.
73.)
D
&
B also does not challenge denial
reason
no.
6 providing that “t)he
applicant shall
submit cost
estimates reflecting the additional information that is requested.
Sections 807.621 and 807.622.”
(Id.)
2
Particularly where, as here, the applicant has presented
a minimal argument in its petition for review.
126—586
5
D
& B challenges the following denial reason:
“The applicant
shall
include the installation of gas vents
in the closure cost
estimates,
Section
807.62l(e)(7),
or
discuss
why they
are not
needed.”
(R.
Ex.
73.)
In its permit application, D
& B stated
that “g)as
vents have never bc.~enrequired at this site and are not
anticipated in the future.”
(R.
Ex.
67 at 3.)
D
& B alleges that,
pursuant to section 807.621(e) (7), the installation of gas vents
need not be included in the cost estimate because such installation
was not required in the development or operating permits.
35 Ill.
Adin. Code 807.621(e) (7)
(emphasis added)
provides:
e)
The closure cost estimate must, at a minimum,
include the following elements,
if rec~uiredin
the site permit for closure of the site:
7)
The cost of installation of gas
control equipment.
While “site permit”
is not defined in the regulations, the Board
reads this language as referring to the operating permit for the
site
in question.
Consequently,
an applicant need only include
the
cost
estimate
of
installing
gas
control
equipment
if
the
operating permit
required
the
installation
of
such
equipment.
Here,
D
&
B’s “site permit” did not require the installation of
such equipment.
The Agency asserts that its denial reason asks D
& B to explain why
it did not include gas vents
in its CPC plan,
not
why
it
did
not
include
the
vents
in
its
cost
estimate.
However,
the regulation relied upon by the Agency
in
its denial
governs the cost estimate, not the CPC plan.
If the Agency seeks
to deny the plan for failure to include installation of gas vents
in the CPC plan,
then
it must link this denial to
a regulation
requiring such installation in the plan, such as 35 Ill. Adm. Code
807.502
(Closure Performance Standards) or 807.503
(Closure Plan).
Here, the Agency relies upon regulations dictating the contents of
the permit application to address alleged deficiencies rather than
relying
upon
regulations
which
would
establish
why
this
site
cannot meet closure standards.
The Board finds that denial reason
no.
2
is an improper basis for denial of approval of the CPC plan
because such information is not necessary to establish compliance
with the closure/post—closure regulations.
The Agency’s third denial reason states that “b)ecause
of
the lack of information regarding borings and an adequate number
of groundwater monitoring wells, the applicant shall propose a new
groundwater
monitoring
program
upon
completion
of
a
thorough
subsurface
investigation.
This
investigation
should
provide
information on installing wells at the most advantageous locations
and at the proper depths based on groundwater flow direction and
126—587
6
additional
soil borings.
Sections
807.207(b),
807.316(a)(3)(B),
807.3l6(a)(5)
and 807.316(a)(7).”
(R.
Ex.
73.)
D
& Bcontends
that the Agency’s reliance upon the cited ~oard regulations are
inappropriate for CPC plan denial because these regulations do not
pertain
to
closure/post-closure.
The Agency
alleges
that the
denial
is properly based
upon D
&
B’s failure to
“provide the
Agency with sufficient
information to prove
its landfill
is not
contaminating the groundwater.”
The Board agrees with D
&
B.
Section
807.207(b)
governs
standards for issuance of development, operating and experimental
permits and provides that the Agency
shall
not grant
a
permit
unless
the
applicant
provides proof
of
compliance
with
design
criteria.
Certainly,
D
&
B
is not at the “design stage” of its
landfill,
nor
is
D
&
B
seeking
a
development,
operating
or
experimental permit.
Section 807.316 and its various subsections
set forth
the requirements
of an
application for
a development
permit.
Again,
D
&
B
is
not seeking issuance of
a development
permit and, therefore,
it need not demonstrate compliance with the
cited regulations.
The Agency’s reliance upon these regulations
is an incorrect basis
for denial.
If the Agency has found that
there
are
site-specific
reasons
why this
landfill
cannot meet
closure requirements,
it must cite to regulations supporting this
finding.
The Agency’s fourth denial reason provides that D
& B “shall
also submit a cross—section of the fill areas at the site drawn to
scale showing the dimensions of each cell and the invert elevation
with respect to the original ground surface and
sic)
proposed or
present
final contours to aid in the installation of monitoring
wells.
Include surrounding geology around the cell
in the cross-
sections.
Section
807.207(b)
and 807.316(a)(15)(J).”
(R.
Ex.
73.)
D
&
B
again
alleges
that
the
cited
regulations
are
inapplicable to closure/post-closure.
The Agency argues that this
denial reason relates to the lack of sufficient information in the
application and that, without this information, the Agency cannot
be certain that the CPC plan will “satisfy the closure performance
standards of 807.502.”
(Ag. Brief at 13—14.)
For the same reasons stated above, we agree with D
&
B that
the Agency may not rely on the regulations cited
in the denial
because
these
regulations pertain
to
operating and development
permits.
Furthermore,
the
Board
cannot
consider the
Agency’s
reliance in its brief of the general closure performance standard
because this regulation was not cited as a basis for denial by the
Agency in its denial
statement.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par. 1039(a).)
The
fifth
denial
reasons
provides
that
“a
map
of
the
existing contours of the entire facility was not provided.
This
map
is required to document the run-off and run-on patterns for
the facility and to demonstrate the landfill is not being filled
126—588
7
above permit height
limitations.”
(R.
Ex. 73)
The Agency has
failed to cite any provision of the Act or regulation
in support
of this denial reason.
Our review of the closure/post-closure
regulations reveals no such requirement.
If the Agency is relying
upon the general
closure performance
standards
of
35
Ill.
Adin.
Code 807.502,
it has failed to cite to
this regulation
in
its.
denial.
Therefore, the Board finds that denial reason no.
5 is an
improper basis for denial.
Although D
&
B
asks that the Board
require the Agency
to
approve the
CPC
plan,
or
alternatively,
require the Agency
to
perform
a
technical
review
of
its
application,
D
&
B
has
not
challenged
the
Agency’s
remaining
two
denial
reasons
(denial
reasons nos.
1 and 6).
Therefore,
D
& b has not met its burden of
demonstrating that all of the reasons for denial are inadequate to
support a finding that permit issuance will cause
a violation of
the Act
or
regulations.
Consequently,
tne Agency’s denial
of
approval of D
& B’s CPC plan must be affirmed.
This opinion constitutes the Board’s
findings
of fact
and
conclusions of law in this matter.
ORDER
For the
foregoing reasons,
the Board
finds
Agency
denial
reasons
nos.
2,
3,
4
and
5
are
improper
bases
for
denial
of
approval of D
& B’s CPC plan.
The remaining denial reasons have
not been challenged by D
& B and, therefore,
the Agency’s denial
is hereby affirmed.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereb
certify th t
bove Opinion and Order was adopted
on the ~~tiday
of
_____________,
1991 by a vote
f
7-~
Dorothy N.
GunJ3’,
Clerk
Illinois Poll~AfionControl Board
126—589