ILLINOIS POLLUTION CONTROL BOARD
November
8,
1990
LAND AND LAKES COMPANY,
Petitioner,
v.
)
PCB 90—118
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DISSENTING OPINION (by
J. Anderson):
For clarity and completeness regarding my dissent,
I have
selected
the following Opinion and Order format to best express
what
I believe would have been the appropriate outcome and
supporting rationale
in this case.
*
*
*
*
This matter comes before
the Board on a Petition for Review
filed by Land and Lakes Company
(“Land and Lakes”).
Land and
Lakes seeks review of
a single condition imposed by the Illinois
Environmental Protection Agency’s
(“Agency”)
on its May 17,
1990
Experimental Supplemental Permit.
PROCEDURAL HISTORY
Land and Lakes filed its Petition for Review on June
20,
1990.
On July
16,
1990 the Agency filed a Motion for Leave to
File the Agency Record Instanter and the Agency Record.
On July
19,
1990
the Board issued an order granting the Agency’s
motion.
On July 20,
1990, Land and Lakes
filed a Motion to
Supplement the Agency Record.
On July 24,
1990 the Agency filed
a Motion
for Extension of Time
to Reply to Land and Lakes’
Motion
to Supplement
the Agency Record.
The Board granted the motion on
August
9,
1990,
and the Agency filed its Objection to the Motion
to Supplement on the same date.
On August
13,
1990, Land and
Lakes filed a Reply
to the Agency’s Objection.
Hearing was held
on August 16,
1990
in Romeoville,
Illinois.
On August
30,
1990,
the Board issued an order stating that
it
would take the Motion
to Supplement
the Agency Record with the case.
Land and Lakes
filed
its post—hearing brief on September
10,
1990.
The Illinois
Environmental Protection Agency
(“Agency”)
filed its post—hearing
brief
on September
21,
1990.
On September
27,
1990,
Land and
Lakes filed
a Reply Brief.
116—59
—2—
BACKGROUND
Land and Lakes is the operator of
a sanitary landfill known
as the Willow Ranch Landfill.
The landfill
is owned by NED Trust
Company of Illinois as trustee for JMC Operations.
The site
is
located southeast of Route
53 and Bluff Road in Romeoville,
Will
County,
Illinois, and consists of approximately
33 acres.
It
is
adjacent to a quarry on one side and, on its southern edge,
to
the Will County Forest Reserve.
(R.
121).
It
is permitted to
accept general municipal solid waste.
(R.
121).
The Agency granted Land and Lakes a Developmental Permit
(Permit No.
1976—17—DE)
for the site on May 13,
1976.
On
February 1, 1990, Land and Lakes submitted an application for an
Experimental Supplemental Permit to allow it
to modify the
operation of the site to allow the use of
a non—woven geotextile
fabric
(Fabrisoil) as an alternate daily cover material.
After
receiving the permit application, Mr.
Chris Liebman,
the Agency permit analyst on this matter, sent out a memo to the
various sections within the Division of Land Pollution Control
(including
the Field Operations Section
(“FOS”)) asking for
comments on it.
(R.
48—49,
73).
He received a written comment
from Mark Retzlaff of FOS, as well as
a suggestion from his
supervisor,
Ed Bakowski,
to check with Will County which has a
delegation agreement with the Agency pursuant
to Section 4(r) of
the Act.
(R.
57,
92).
On May
8,
1990,
Mr. Liebman telephoned
Ms. Kathryn Sachtelben,
the Will County landfill inspector.
(R.
58,
136).
Ms. Sachtelben told him that she did not have
experience with the use of Fabrisoil and that she did not know if
it would prevent blowing litter
in heavy winds,
or how
it would
perform
in heavy rains or with regard to burrowing animals.
(R.
125).
She also stated that the site was adjacent to a forest
reserve,
that Land and Lakes had experienced some problems
in the
past with an experimental daily cover called Sanifoam, and that
it was her understanding, from conversations with site personnel,
that there was no one at the landfill on weekends or holidays.
(R.
65,
79,
103, 125).
She then recommended that
a soil cover
rather than the Fabrisoil be applied on
the day before weekends
and holidays because there would
be no one at the site at those
times
to rectify any potential problems
(i.e.
blowing litter,
odors, burrowing animals, or fires) that could arise during those
times.
(R.
77,
107,
108,
127—128).
On May
17,
1990,
the Agency granted Land and Lakes’
Application for Experimental Supplemental Permit
(Permit No.
1990—056—SPX).
The permit
is of a two year duration, and
contains sixteen special conditions and four standard
conditions.
Land and Lakes appeals from the imposition of
Special Condition 3, which provides as follows:
3.
At
the
end
of
the working day on days before
weekends and holidays,
soil rather than non—
116—60
—3—
woven
geotextile
fabric or Sani—Blanket
shall
be used
as daily cover.
In its Petition for Review,
Land and Lakes provides three
reasons for its objection to the inclusion of Special Condition
3.
First, Land and Lakes argues that the condition is neither
required by any regulation promulgated by the Board under
35
Ill.
Adm. Code 807,
nor necessary to accomplish any purpose of the
Environmental Protection Act
(“Act”)
(see Ill. Rev.
Stat.
1989,
ch. 1ll~,par. 1039(a);
35
Ill. Adm. Code 807.206(a)).
(Pet.
par.
6(A)).
Second, Land and Lakes alleges that the Agency acted
arbitrarily and unreasonably
in imposing the condition because
there
is no technical basis, nor any basis
in law or
fact,
for
its inclusion.
(Pet.
par.
6(B)).
Finally, Land and Lakes
asserts that the Agency included the condition solely at the
behest of Will County and in violation of Section 39(a)
of the
Act.
(Pet.
par.
6(C)).
In support
of the above allegations,
Land and Lakes points
to the fact that the Agency did not include
a similar condition in four of
its other experimental permits
(see below).
(Pet.
par.
6(C)).
MOTION TO SUPPLEMENT AGENCY RECORD
Before reaching the substantive merits of this permit
review,
the Board must address the
issue raised in Land and
Lakes’ Motion to Supplement
the Agency Record.*
Land and Lakes
requests that the Experimental Supplemental Permits for four of
its other
landfills (Land and Lakes Dolton
Permit
No.
1990—075—
SPX dated May 14,
1990,
located at 138th and Cottage Grove
in
Dolton, Cook County; Land and Lakes
#3 Permit
No.
1990—063—SPX
dated May 8,
1990,
located at
122nd and Stony Island in Chicago,
Cook County; Land and Lakes
#1 and #2
Permit
No. 1990—062—SPX
dated May 7,
1990,
located
in Cook County;
and Land and Lakes
Wheeling
Permit
No. 1990—194—SPX dated May 31,
1990,
located on
Milwaukee Avenue just north of Lake Cook Road in Wheeling, Lake
County)
be
included
in the record because they do not contain the
objectionable condition.
Land and Lakes argues that the above
permits must be included
in the record in order
for
the Board to
appreciate the arbitrary nature of the Agency’s decision
to
impose Special Condition
3.
*
The Board notes that,
at hearing, Land and Lakes made
a motion
to introduce the four experimental permits
into the record.
The
Agency objected and argued that they were not relevant to the
case.
The Agency also objected
to the introduction of the
Wheeling landfill permit.
The Agency argued that
it should not
be admitted into the record because
it was
issued after the
Willow Ranch permit and the Board can only consider evidence that
was available to
the Agency at
the time the permit was issued.
The Hearing Officer
in the matter allowed the introduction of the
four permits into the record
(see Exhibits
1,
2,
3, and
4).
(R.
34—38).
116—61
—4—
In response,
the Agency argues that it filed the record
pursuant to
35
Ill. Adm. Code l05.l02(a)(4), and that the Agency
record contains the documents described
in that section and all
other documents which the Agency utilized
in
its permit review.
The Agency also states that
it did not utilize the other permits
in its permit review and asserts that the documents are not
relevant to this permit appeal.
With regard
to the issue of supplementation,
it
is well
recognized
that,
if there was information
in the Agency’s
possession upon which it actually or reasonably should have
relied,
the applicant may submit such information to the Board
for the Board’s consideration.
Waste Management,
Inc.
v.
IEPA,
PCB 84—45,
61,
68,
60 PCB 173,
201 (October
1,
1984) and 61 PCB
301,
310,
312,
313
(November 26, l984)(monitoring data in the
Agency’s possession which contradicted earlier monitoring data
which did not come
to the attention of Agency decision makers
should be included in the record), aff’d sub nom.
IEPA v.IPCE and
Waste Management, 138
Ill. App.
3d
550,
486 N.E.2d 293
(3d Dist.
1985), aff’d 115 Ill.2d 65,
503 N.E.2d 343
(1986); Wells
Manufacturing Company
v.
IEPA, PCB 86—48,
71 PCB
34,
35-36
(July
11,
1986),
76 PCB 301,
303,
310
(March l9,l987)(Hearing Officer
correctly allowed the testimony of Agency witnesses who were
called to amplify upon joint exhibits
testimony
of citizens
whose
forms,
letters, and petitions that were on file with and
available to the Agency,
prior
to the Agency’s action
in the
matter
contained in the Agency
record),
76 PCB 324
(March 19,
1987),
rev’d and rem’d on other grounds 195
Ill. App.
3d
593,
552 N.E.2d 1074
(5th Dist.
1990); Joliet Sand and Gravel Company
v.
IEPA, PCB 86—159,
75 PCB 228,
232—233
(February
5,
l987)(in
appeal of Agency denial of application for renewal of operating
permit, documents contained in Agency’s file relating to original
operating and construction permits were admitted into evidence
because application for
renewal referenced expiring operating
permit which,
in
turn,
referenced construction permit), aff’d
Joliet Sand and Gravel Company
v.
IPCB and IEPA,
163 Ill.App.3d
830,
516 N.E.2d
955,
958
(3d Dist.
1987);
Frinks Industrial
Waste,
Inc.
v.
IEPA, PCB 83—10,
52 PCE 447,
449
(June 30,
l983)(supplements to the record had been necessary when the
Agency located additional relevant documents);
Sherex Chemical
Co.
Inc.
v.
IEPA, PCB 80—66,
39 PCB 527,
53.0
(October
2,
l980)(Board overturned Agency’s denials
of both an operating and
a stack construction permit based on modeling data
in the record,
which because of the Agency’s denial letter, theoretically
included only the Dames
& Moore results, but which in point of
fact included all prior permit application considerations), aff’d
sub nom.
IEPA v.
Sherex Chemical Co.
and
IPCB,
100 Ill. App.
3d
735
(1981).
In the case at hand,
it
is undisputed that the four permit
applications were in the Agency’s possession at or
about
the same
time as the Willow Ranch permit application.
(R.
18,
35).
It
also appears that the experimental permits for the four landfills
were
issued at
or about the same time as the Willow Ranch
116—62
—5—
permit.
(R.
19,
21,
36).
The question now becomes whether Mr.
Liebman should have included the four other permits as part of
its
review.
At hearing, Mr. Liebman testified that he had not seen the
permits for the four other
landfills.
(R.
96).
He also
testified,
however,
that although he could not remember
if he was
aware that the other four permit applications were at the Agency
at the time of his review of the Willow Ranch permit,
it
is
typical for Land and Lakes, when asking for a permit
to allow for
a certain activity at one facility,
to ask for
a similar permit
for
its other facilities.
(R.
97—98).
It is also apparent from
reading the transcript that permit applications are circulated in
the Division of Land Pollution Control,
that Mr. Liebman gives
his first draft of a permit
to his immediate supervisor,
Mr.
Ed
Bakowski,
for review,
and that a final draft
is submitted
to the
head of the Division of Land Pollution Control’s Permit Section,
Mr.
Larry Eastep,
for his review and signature.
(R.
48—49,
73,
77,
85).
After considering the fact that all the permit applications
were at the Agency at the same time,
that Mr. Liebman was aware
that
it was typical
for Land and Lakes to ask for similar permits
for its various landfills,
and that permit applications are
typically circulated
in the Division of Land Pollution Control
and given to Mr. Bakowski and Mr. Eastep for review,
the Board
concludes that
it is not unreasonable
to expect Mr. Liebman
to
have been aware of and to have examined those permits that were
issued prior
to the Willow Ranch permit
(Land and Lakes Dolton,
Land and Lakes
#3,
and Land and Lakes
#1 and #2).
He could not
have examined the Wheeling permit,
however, because
it was issued
after
to the Willow Ranch permit and thus,
was unavailable to
him.
Accordingly,
the Board grants Land and Lakes’ Motion to
Supplement
the Record,
but only with respect to the permits for
Land and Lakes Dolton,
Land and Lakes
#3,
and Land and Lakes
#1
and #2.
Moreover,
the Board overturns the Hearing Officer’s
ruling with respect
to the Wheeling permit.
BURDEN OF PROOF
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
permit...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
116—63
—6—
are
not
inconsistent
with
the
regulations
promulgated by the Board hereunder.
This standard is reiterated in the Board’s waste disposal
regulations, with one important exception.
Specifically,
35
Ill.
Adm. Code 807.207 provides:
The Agency shall not grant
any permit,
except
an Experimental
Permit
under
Section
807.203,
unless
the
applicant
submits
adequate
proof
that the solid waste management site:
(a)
will
be
developed,
modified
or operated
so
as
not
to cause
a
violation of the Act
or the rules,
or
has
been
granted
a
variance
pursuant
to
Title IX of the Act....(emphasis added)
When examining 35
Ill. Adm. Code 807.203,
it becomes clear that
experimental permits are exempt from the standard set forth
therein.
35
Ill. Adm. Code 807.203(a) provides:
To
best
aid
the
improvement
of
solid
waste
management
technology,
the
Agency
may
issue
Experimental
Permits
for
processes
or
techniques
that
do
not
satisfy
the
standards
for
issuance set
forth
in
Section 807.207,
if
the
applicant
can
provide
proof
that
the
process
or
techniques
has
a
reasonable chance
for success and that the environmental hazards
are minimal.
Although both parties refer
to the above sections,
there
is
some dispute and confusion regarding the applicable section and
thus,
the burden of proof that must be met
in this case.
In most permit appeals,
a petitioner must show that
the
condition imposed by the Agency
is arbitrary and not necessary to
accomplish
the purposes of the Act.
Stated alternatively,
a
petitioner
must establish that
its permit, absent
the condition,
will not result
in any future violation of the Act and the
condition
is, therefore,
arbitrary and unnecessary
(see John
Sexton Contractors Company v.
IEPA,
PCB 88—139,
96 PCB 191,
196
(February
23,
1989), aff’d in part,
rev’d
in part and rem’d sub
nom. John Sexton Contractors Company
v.
IPCB and IEPA,
No.
1—89—
1393, slip op.
at 15
(4th Dist. June
29,
1990); Browning—Ferris
Industries of
Illinois,
Inc.
v.
PCB et al,,
179 Ill. App.
3d 598,
534 N.E.2d 616,
620,
622
(2d Dist.
1989);
Sexton Filling
&
Grading Contractors Corporation
v.
IEPA, PCB 88—116,
100,
PCE
189,
194,
197
(June
22, 1989);
Alton Packaging Corp.
v.
PCB,
162
Ill. App.
3d 731,
516 N.E.2d
275,
279
(5th Dist.
1987);
EPA v.
PCB,
118
Ill. App.
3d
722,
780,
445 N.E.2d
188,
194
(1st Dist.
1983).
Once a petitioner establishes a prima facie case that the
condition
is unnecessary,
it becomes incumbent upon the Agency
to
refute
the prima facie case.
John Sexton Contractors Company
v.
IPCB and
IEPA,
No.
1—89—1393,
slip op.
at
15
(4th Dist. June
29,
116—64
—7—
1990); Marathon Petroleum Co.,
IEPA, PCB 88—179,
101 PCB 259,
274
(July 27,
1989).
In order
to do this,
the Agency must prove that
the condition
is necessary to achieve compliance with the Act and
is not merely a condition of convenience.
Fred E.
Jurcak
v.
IEPA, PCB 85—137,
103 PCB 506—507
(September
28,
1989).
Because experimental permits have a two year maximum
duration
(see
35 Ill.Adm. Code 807.203(c)),
the burden of proof
(i.e.
in terms of
risk)
is less than that of Section 39(a) of the
Act.
In other words,
a petitioner who is granted an experimental
permit pursuant
to
35
Ill. Adm. Code 807.203 need not prove that
the permit,
as proposed,
will not
result
in a violation of the
Act.
Rather,
the petitioner has a burden to show that the
experimental process or
technique,
as proposed, has
a reasonable
chance of success and minimizes the environmental hazards and
that
the disputed condition,
therefore,
is unnecessary.
Once the
petitioner has met his burden of proof,
the burden then shifts to
the Agency to show that the condition
is necessary.
DISCUSSION
As previously stated,
the main issue
in this
case, and the
question that the Board must ask,
is whether the use of
Fabrisoil,
as proposed (i.e.
at all times), has a reasonable
chance of
success and minimizes environmental hazards.
In other
words,
the issue is whether Special Condition
3
is unnecessary.
In its briefs, Land and Lakes argues that the condition is
arbitrary and unnecessary for several reasons.
First, Land and
Lakes notes
that its permit application did not contain any
information or
reveal any special circumstances that would
justify the imposition of Special Condition
3.
Second, Land and
Lakes states that there was no technical or factual basis
for the
inclusion
of the condition.
Rather, Land and Lakes argues that
the Agency improperly delegated its authority because
it imposed
the condition solely at
the behest of Will County.
Third, Land
and Lakes argues that
there
is nothing about the Willow Ranch
facility that
in any way differs from the other four landfills
which would necessitate
or require the imposition of Special
Condition
3.
For
its part,
the Agency asserts that Fabrisoil
is an
unproven technology
in Illinois, and that the burden of proof
that Fabrisoil
is an effective daily cover material is
on Land
and Lakes and not the Agency.
According to the Agency,
the only
information that Land and Lakes submitted to the Agency
regarding
the effectiveness of Fabrisoil as
a daily cover was
a “self-
serving” brochure from the manufacturer of the product.
Because
Land and Lakes did not submit any documentation from sources
independent from the manufacturer as to the effectiveness of the
product,
the Agency concludes that
it had no reliable
information
at the time of
the permit application,
either
from Land and Lakes
or elsewhere,
that Fabrisoil would control
litter, vectors,
fire,
or odors consistently and under all weather conditions.
116—65
—8—
In addition to the above reasons, the Agency asserts that it
was justified in issuing an experimental permit pursuant to
35
Ill.
Adm. Code 807.203 and imposing Special Condition
3 because
the landfill was adjacent to a forest reserve and, as a result,
had a higher susceptibility to burrowing animals than other
sites, and because the site was unattended on weekends and
holidays and no one would be available to correct any problems
that could arise during those times.
In response to Land and Lakes’
argument regarding improper
delegation,
the Agency contends that there is no evidence
to show
that Mr. Liebman delegated his permit
responsibility to Will
County.
Rather,
the Agency notes that permit reviewers commonly
seek the input of Agency field inspectors as well as county
inspectors,
where the county has a delegation agreement with the
Agency pursuant
to Section
4(r)
of the Act,
in making permitting
decisions.
The Agency adds that Mr. Liebman simply sought
information concerning the site
in accordance with this common
practice and then exercised his independent judgment before
placing Special Condition
3
in the permit.
The record reveals that the Agency added Special Condition
3
to guard against the possible risks of blowing trash, odors,
animal burrowing, and fires, and that the Agency’s actions were
based on the conclusion that there was no reliable information
that Fabrisoil would control such occurrences.
However, at no
time did the Agency contend that Special Condition
3 was needed
(i.e.
necessary)
to assure that Fabrisoil would have a reasonable
chance of success.
In fact, as Ms. Sachtelben testified,
Special
Condition
3 was added not because Fabrisoil did not have a
reasonable chance of succeeding without the condition,
but
because neither she nor
the Agency were certain
it would succeed:
With
an
experimental
permit
I
feel
it’s
an
opportunity
to
safeguard against
problems
in
the
future
so
I
recommended
that
we
be
cautious,
that
we do not have——I
did not
have
experience
with
the
use of Fabri—soil
and
to
my
knowledge
the
Agency
did
not
have
experience,
their
field operations people did
not
have
experience
with
the
use
of
Fabri-
soil,
that
clay
or
dirt
cover
is more tried
and true, and because of these reasons that we
don’t
know
how
it
performs
in
blowing
conditions,
heavy
winds,
if
it
would
cause
blowing litter or allow
for blowing litter in
heavy wind conditions that we did not have any
proof
of
how
it
would
perform
in
the
field
regarding
borrowing
animals
or
heavy
rains.
(Emphasis added).
(R.
125,
133,
137).
116—66
—9—
It
is also clear
that there was nothing at the landfill that
would justify the imposition of Special Condition
3.
Mr. Wierec
testified that there was nothing about
the landfill
in terms of
the types of refuse it accepted,
or its location and the
surrounding environment
that would require the use of soil before
a weekend or holiday as opposed to Fabrisoil.
(R.
22—23,
39).
He also stated that there was nothing about Special Condition
3
that would enhance or improve the environmental conditions at the
landfill.
(R.
22—23).
Ms.
Sachtelben testified that she thought
there may be some type of problem at the landfill
if Fabrisoil
was used before weekends and holidays, she was unable to specify
what that problem might
be.
(R.
124—127).
Although she
suggested that animals from the forest reserve could burrow at
the site,
she testified that she had never before seen burrowing
animals at the site.
(R.
137—139,
140).
Moreover, she testified
that she did not know of any problems with blowing litter,
odors,
or
fires at the site,
nor did she ever
issue an administrative
citation to the site or know of any complaints lodged against the
site.
(R.
130—131, 143—144).
Mr. Liebman even confirmed the
fact that the ‘condition was added not because of past problems
with blowing litter, nor because the feared problems had any
basis
in technical data
or literature.
(R.
106,
109).
It also becomes apparent that Special Condition
3
is
unnecessary
in light of the fact
that Special condition
10
already guards against the possibility of potential hazards.
Special Condition 10 provides that:
If
weather
or
other
conditions
exist
that
adversely
affect
the ability
of
the alternate
cover
to
prevent
blowing
litter,
susceptibility to
fire, odors,
or vectors,
six
inches
(6”)
of daily cover soil shall
be used.
Moreover, we note that Special Condition
3
is not
“rationally related” to the Agency’s reasoning for imposing the
condition
(i.e.
to guard against potential problems when the site
was unattended).
For example,
the Board
is at
a loss
to
understand the Agency’s distinction between week nights as
opposed to weekends and holidays
in light of the fact that many
potential problems
(i.e.
wind and burrowing. animals)
are as
likely
to occur during a week night
as during a weekend or
holiday.
Also,
if the purpose of issuing an experimental permit
for
this landfill was
to see whether Fabrisoil worked,
the Board
is puzzled as to how the Agency thought
it was going to obtain
information about the effectiveness of the product
if
it was not
going to be used under those circumstances normally encountered
in the field,
including weekend use.
Thus,
it would have been
more appropriate for the Agency to have,
for example, allowed the
use
of Fabrisoil at all
times and required Land and Lakes
to have
a person conduct periodic checks during weekends and holidays if
it were concerned about potential problems.
116—67
—10—
With regard to the question of the Agency’s delegation of
authority,
the Board has no quarrel with the Agency’s attempt to
seek whatever information it judges will or may be of use to it
when it
is evaluating a permit application.
It makes sense that
the Agency would ask about
the experiences of
a county inspector
functioning under
a delegation agreement.
However, Section 4(r)
of the Act does not allow the Agency
to delegate its permit
responsibilities and,
in this sense,
the Board does not accept
the Agency’s argument that a county inspector’s involvement
in a
permit
review is no different from that of an Agency employee.
In other words,
the Agency cannot absolve itself of the
responsibility to evaluate the merits of a recommended permit
condition.
Thus,
it cannot add a permit condition solely because
it was asked
to do so.
Here, only Ms. Sachtelben ever considered
the necessity of Special Condition
3.
Mr. Liebman never quizzed
Ms. Sachtelben about the basis
for her concerns,
nor did he
consult with any outside authorities about the necessity of
Special Condition
3.
(R.
80—83,
99).
In other words,
we
cannot
discern where Mr. Liebman exercised independent judgment.
Rather,
he acceded to the county’s suggestion without any further
review.
Had the Agency probed and evaluated the underlying
rationale for placing Special Condition
3
in the permit,
it might
have itself concluded that
the condition was inappropriate and
inapposite to the purpose of
issuing the experimental permit
in
the first place.
The Board does not agree, however, with Land and Lakes’
supposition
that the absence of the Special Condition
3
in the
experimental permits
for the other landfills
is an indication of
the arbitrary nature of the Agency’s decision to impose
the
condition in this case.
In order
for the Board come to such a
conclusion,
there must be an evidence that the topography and
operations at the Willow Ranch landfill are similar
to the other
landfills.
Although Mr.
Wierec testified that there was nothing
about
this landfill
in terms of the types of refuse it accepted
or
its location and the surrounding environment that would
require the use of soil rather
than Fabrisoil before
a weekend or
holiday, there
is no evidence
in the record that indicates any
similarity between the landfills in terms of operating
procedures.
Specifically,
there is
no evidence whether there
is
oversight at the other facilities during the weekends and
holidays.
This lack of evidence defeats Land and Lakes’
attempt
to draw a comparison between the landfills.
Finally, we note that
it appears that the Agency did not
give Land and Lakes any indication that
it was going to impose
such a condition.
Thus, Land and Lake had no opportunity to
discuss Special Condition
3 with the Agency.
In Wells
Manufacturing Company
v.
IEPA,
195
Ill. App.
3d
593,
552 N.E.2d
1074
(1st Dist.
1990), the Appellate Court concluded that the
Agency violated Wells’
due process
rights when it denied the
company’s application for renewal of an air operating permit on
the basis of an alleged air pollution violation.
The Court
concluded that because the company had certified that information
116—68
—11—
in previous construction and operating permits was accurate and
unchanged at the time of the renewal application, the Agency
should have approved the renewal application or given the company
an opportunity to submit evidence during the application process
that
it
was not violating the Act and air pollution
regulations.
(See also Reichhold Chemicals,
Inc.
v.
IPCB and
IEPA,
No.
3—89—0393
(3d Dist.
October
12, 1990),
involving the
Agency’s denial of Reichhold’s application for an air operating
permit on the basis that the company might violate the Act.
The
Appellate Court
cited Wells and expressed concern over
the
Agency’s denial because the Agency did not give the company an
opportunity to submit information before
the denial.)
In the instant matter,
Mr. Liebman, on direct examination,
testified that there was never a discussion between the Agency
and Land and Lakes regarding the imposition of Special Condition
3
or
the permit before the permit was issued.
(R.
24).
He then
stated, during cross—examination,
that he had talked with Land
and Lakes about the imposition of the condition.
(R.
83—85).
Mr. Dan Wierec,
an engineer
for Land and Lakes,
testified
that the Agency did not contact him or,
to his knowledge,
anyone
at Land and Lakes,
to discuss the Agency’s underlying concerns
leading to imposition of Special Condition
3.
(R.
23—24).
Mr.
Axnbrosm
(sic), Land and Lakes’ environmental manager,
testified
that he talked with Mr. Liebman about
Special Condition
16,
but
not about Special Condition
3.
(R.
154-155).
After reviewing the testimony of Mr.
Liebman,
Mr. Wierec,
and Mr. Ambrosm,
the Board
is persuaded that there was no contact
between the Agency and Land and Lakes regarding the imposition of
Special Condition
3.
Although we recognize that this case
differs from Wells and Reichhold in that it involves an
experimental supplemental permit
rather than the renewal of an
operating permit or a first—time operating permit,
we,
like the
Appellate Courts in Wells and Reichhold,
are concerned with the
fundamental fairness of
the Agency’s procedures.
Because Land
and Lakes certified
in its permit application that there were no
other modifications at the site other than the change
in daily
cover,
the Board concludes that
it would have been
in the
interest of
fairness
if
the Agency had given Land and Lakes
an
opportunity
to submit evidence that there would have been no
danger
if
it used geotextile fabric before weekends and holidays.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board strikes Special Condition
3 of Land and Lakes’
Experimental Supplemental Permit
(Permit No.
l990—056—SPX) dated
May
17,
1990.
116—69
—12—
Section 41 of the Environmental Protection Act,
Ill.Rev.
Stat. 1989,
ch.
lll’~’,par.
1041,
provides for appeal of final
Orders of the Board within 35
days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
***
*
It
is for
the reasons expressed in Opinion and Order format
above that
I respectfully dissent.
~
/
7
~
-
/
,‘Joan
G. Anderson
~“Board Member
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the abo
e Dissenting Opinion was
submitted on the
.2f~2~dayof
______________,
1990.
Dorothy M.
9T5/in, Clerk
Illinois Po~utionControl Board
116—70
