ILLINOIS POLLUTION CONTROL
BOARD
November 8,
1990
LAND
AND
LAKES COMPANY,
Petitioner,
v.
)
PCB 90—118
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
FRED C.
PRILLAMAN APPEARED ON BEHALF OF PETITIONER,
AND
DONALD L. GIMBEL APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by J.
D.
Dumelle):
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
(“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 filed
its post-hearing brief on
September 21,
1990.
On September 27,
1990,
Land and Lakes filed
a Reply Brief.
BACKGROUND
Land and Lakes is the operator of a sanitary landfill known
as the Willow Ranch Landfill.
The landfill
is owned by NBD 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
116—47
2
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.
l976-17-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 experimental supplemental 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.
Liebinan telephoned Ms. Kathryn Sachtleben,
the Will
County landfill
inspector.
(R.
58,
136).
Ms. Sachtleben 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—
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
116—4
8
3
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.
111½,
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.1
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.
l990-062--SPX
dated May 7,
1990,
located in Cook County;
and Land and Lakes
Wheeling Permit
No. l990-194-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.
In response, the Agency argues that it filed the record
pursuant to 35 Ill.
Adm. Code 105.102(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.
1The
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—49
4
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.
The sole question before the Board in a permit review is
whether the applicant proves that the application, ~
submitted
~
Agency, demonstrates compliance with Act and regulations.
(Joliet Sand
& Gravel v.
PCB,
516 N.E.2d 955,
958
(3d Dist.
1987).)
Consequently, the Board’s review of the Agency’s permit
decision is limited to a consideration of the material relied
upon by the Agency.
(Alton Packaciinc~Corp.
v.
PCB,
516 N.E.2d
275,
280
(5th Dist.
1987).)
While the applicant’s burden of
proof in an experimental permit review is somewhat different in
that the applicant must prove that the process or technique has a
reasonable chance for success and the environmental hazards are
minimal
(35 Ill.
Adm. Code 203(a)), the scope of the Board’s
review remains the same.
Here,
there
is nothing to show that Agency should have
considered information in other permit files simply because the
same applicant is involved, but the permits apply to different
facilities.
The Board will not put itself in the position of
second—guessing the Agency’s permit decision based upon
information in other permit files in the Agency’s possession.
Therefore,
the motion to supplement the record with the four
permit applications is denied.
The Board notes that,
in addition
to the reasons stated above,
it will not supplement the record
with the Wheeling permit application because that permit was
issued subsequent to the instant permit and, therefore,
was
clearly not available to the Agency at the time the instant
permit decision was rendered.
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 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:
116—50
S
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
~
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, PCB
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.
~
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,
1990); Marathon Petroleum Co.
v.
IEPA, PCB 88-179,
101 PCB 259,
274
(July 27,
1989); See also Fred E. Jurcak v.
IEPA,
PCB 85—
137,
103 PCB 506
(September 28,
1989).
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
116—5
1
6
technique, as proposed, has a reasonable chance of success and
that the environmental hazards are minimal.
DISCUSSION
As previously stated, the main issue in this case,
and the
question that the Board must ask,
is whether Land and Lakes has
demonstrated that the use of Fabrisoil, as proposed (i.e. at all
times), has
a reasonable chance of success and whether the
environmental hazards are minimal.
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.
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
116—52
7
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 judgxnent 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.
Ms. Sachtleben
stated:
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 Fabrisoil and
to my knowledge the Agency did not have experience,
their field operations people did not have experience
with the use of Fabrisoil, 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 burrowing animals or heavy rains.
(Emphasis
added).
(R.
125).
Overall,
the Board must conclude that for the particular
circumstances at issue here Special Condition
3 is necessary to
accomplish the purposes of the Act.
Land and Lakes has not
demonstrated that,
absent Special Condition 3, the exclusive use
of Fabrisoil has a reasonable chance of success and that the
environmental hazards are minimal.
The Agency’s reliance on the
information from the county inspector supports a conclusion that
minimal environmental harm has not been demonstrated as it
relates to erosion and vectors.
In addition,
no reliable
information on the temporary cover’s performance as to odor and
fires appears in the record.
The permit writer concluded that he lacked information on
the performance of this new temporary cover.
By putting in
Special Condition
3 the existing Board rule for clay or earth
cover,
adopted in 1973, then remains in force.
That rule, which
generally applies to all landfills in Illinois, has more than 17
years experience behind it and is known to safeguard the
environment against odors,
fires, vectors,
and erosion.
116—53
8
With regard to the question of the Agency’s delegation of
authority, the Board has no quarrel with the Agency’s attempt to
seek such information which
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.
FAIRNESS ISSUES
Finally,
there is
a question about whether the Agency had
followed the proper procedures in issuing the permit in question.
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
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.
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).
The
following exchange then took place with Mr. Liebman during cross-
examination:
Q.
Now, what attempt did you make,
if any, to
talk to somebody at Land and Lakes about the
presence or absence of people on the landfill
on weekends or holidays or the problems,
if
any,
of burrowing animals, animals or any
other problem that might be present because
of the proximity of this landfill to the
forest reserve?
A.
I don’t remember attempting to communicate
that.
Q.
You didn’t tell anybody from Land and Lakes
about this,
did you?
A.
Actually,
I thought that I had.
I thought
that
I had talked to Jim Ambrosm
(environmental manager for Land and Lakes)
about condition 16,
and,
at the same time,
mentioned this condition.
Q.
You think you made
a telephone call to Mr.
116—
54
9
Ambrosni and mentioned this Special condition
3?
A.
Yes.
The purpose of the phone call wasn’t to
discuss condition number
3,
it was to discuss
condition number 16 and let him know that was
going to be there, and
I had thought at the
same time that
I ought to let him know that
we would be considering condition number
3.
Q.
Do you remember reading it,
Special condition
3 prior to Mr.
Ambrosni at that time?
A.
I don’t remember.
Q.
But your recollection is that you had already
made a determination to put in special
condition Number
3 and you think you told Mr.
Ambrosin that you intended to do that.
That’s
your testimony,
right?
A.
Well,
yes.
I decided that I would include it
in the draft that
I had prepared.
(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.
Ambrosm,
Land and Lakes’
environmental manager, testified that he
talked with Mr. Liebman about Special Condition
16, but that he
did not recall any discussion about Special Condition 3.
(R.
154-155).
Overall, the Board finds
as a matter of contested fact
that Mr. Liebman did discuss Special Condition
3 with Mr.
Ambrosm.
Therefore,
Wells does not apply.
In any event,
the
Board is not prepared here to extend the Wells rationale from the
factual situation of a routine permit renewal to that of an
experimental permit scenario.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board affirms Special Condition
3 of Land and Lakes’
Experimental Supplemental Permit (Permit No.
l990-056-SPX)
dated
May 17,
1990.
116—55
10
Section 41 of the Environmental Protection Act,
Il1.Rev.
Stat.
1989,
ch.
111½, 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 SO ORDERED.
Board Chairman J. Marlin and Board Members 3. Anderson and J.T.
Meyer Dissented.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution control
Board, hereby certify that the above 0 inion and Order was
adopted on ,~he
_________
day of
__________________,
1990, by a
vote of
~‘-3
.
Kj
Dorothy M. 9~tnn, &ierk
Illinois Poflution Control Board
116—56
