ILLINOIS POLLUTION CONTROL
BOARD
May 10,
1990
CENTRALIA
ENVIRONMENTAL
SERVICES,
INC.,
Petitioner,
)
PCB
89—170
(Permit
Appeal)
v.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
INTERIM OPINION
AND
ORDER OF THE BOARD
(by N.
Nardulli):
This matter comes before the Board on a petition for review
filed October 23,
1989 by Centralia Environmental Services,
Inc.
(CESI)
in which CESI contests the Illinois Environmental Protection
Agency’s
(Agency) denial of a supplemental development
permit
and
an operating permit for Area IV of CESI’s landfill site.
Hearings
were held on December 18,
19,
20,
27, and
28 of 1989
at which
no
members
of the public attended.
STATEMENT
OF
FACTS
CESI’s regional
pollution
control
facility
is
located
on
a
forty
acre
parcel
of
land
near
Centralia,
Illinois
in
Marion
County.
The site was initially permitted for development as a non-
regional pollution control facility on February
9,
1984.
(Agency
Record at 147-57.)
The development permit was issued to Industrial
Salvage,
Inc.
and John Prior,
president,
as
owner and operator.
(~.)
Progressive development of the site was to occur throughout
six portions of the site designated
as Areas
I through VI.
~
at
34-40.)
In
the development
permit,
the Agency
imposed
the
condition that, prior to obtaining any operating permits for Areas
I through IV,
a registered professional engineer must certify that
at
least ten feet of clay with
a maximum permeability
of lxlO
-7
cm/sec exists at the bottom and sidewalls
of the Area.
(Id.
Ex.
2 at 147—50.)
In
1986,
the development permit was transferred
to Jackson
County Landfill,
Inc.
d/b/a/ Industrial Services Inc.
as operator.
The development permit was modified to allow site development
as
a regional pollution control facility.
Also in 1986,
an operating
111-Ill
2
permit was issued for Area
I to Industrial Salvage,
Inc.
as owner
and Jackson County Landfill,
Inc. d/b/a Industrial Services,
Inc.
as
operator.
(~.
Ex.
8
at 674—90.)
Area
I
was permitted
for
disposal
of
municipal
waste
and
non-hazardous
special
waste;
however,
the disposal
of
special wastes which would
yield fluid
when subjected to the “paint filter test” was prohib~.ted. Jackson
County Landfill
Inc.
received
a supplemental permit to allow the
“retrofitting”
of
a
leachate
collection
system
so
that
liquid
special
waste could
be accepted
at
the site.
After
failure
to
obtain
Agency
approval
of
the
leachate
collection
system,
the
operator obtained
a
supplemental permit allowing
for the removal
of the leachate system.
On January
28,
1988,
CESI purchased
the business
assets of
Jackson County
Landfill,
Inc.
(Id.
at
937.)
CESI
submitted
an
application
for
transfer
of
all
existing
permits
and
for
an
operating permit for Areas
II and
III.
(Id.
Ex.
28
at 835-959.)
At that time, the Agency and William T. Schmidt, president of CESI,
discussed the need to investigate the alleged unauthorized disposal
of waste
in Area
II
and the need
for remedial action
to address
allegations by
a
former employee that waste had been disposed
of
below grade
in a
50 feet by 500
feet section located
in Areas III
and IV.
(This area will be referred to as the “investigation area”
or
“reinediation
area”.)
(Id.
at
835—36,
868—69,
and
883.)
Existing
permits were
transferred
to CESI
and CESI
obtained
an
operating
permit
for
Areas
II
and
III
on
March
21,
1988.
In
granting CESI’s
permit,
the Agency
required that CESI
conduct
a
remedial investigation of the 50 feet by 500 feet suspect area and
to submit
a plan of action
for the Agency’s approval.
Also,
the
Agency
imposed the condition that
“in the
event that
the boring
program
reveals
waste
has
been
disposed
of
‘below
grade’,
no
operating
permits
for additional
areas
of this
landfill will be
issued by the Agency until
an Agency approved remedial action
is
satisfactorily
implemented
pursuant
to
an
issued
supplemental
development
permit.”
(Permit
No.
l987-299-SP
condition
no.
2(c) ii.)
On June
14,
1988,
CESI
submitted
a plan of action which was
approved
by
the
Agency.
(Agency Record
at
1017-27.)
The plan
provided for the excavation of above-grade waste in the reinediatiori
area and the reburial of that waste on other permitted sections of
the site.
After the removal process began
in August of
1988, the
Agency
requested
that
CESI
aid
in
exploring
allegations
that
hazardous wastes had been disposed of in the area by setting aside
any drums encountered in the excavation process.
Twelve drums were
set aside
for Agency
inspection.
Analysis
of
one
of
the drums
revealed
the
presence
of
organic
solvents,
including
toluene,
ethylbenzene and substituted benzenes.
(k~.
at 537-42.)
In October of
1988,
CESI contacted the Agency to discuss the
waste
removal
process
and boring
program
for
the
investigation
area.
CESI
indicated
that
it
was
likely
that
waste
had been
i
i
i
-
1 2
3
deposited
below
permitted
levels and sought permission
to remove
the waste.
The Agency agreed that the waste should be removed but
also
informed
CESI
that
backfilling was not
to
occur until
the
boring program was completed.
However,
on October
5,
1988,
CESI
began filling the excavation area with recompacted clay. Following
completion
of
the
backfilling,
borings
were
conducted
in
the
investigation
area.
The
borings
did
not encounter
any waste;
however,
groundwater
was
encountered
within
a
few
feet
of
the
surface of several borings.
CESI submitted a
report
detailing
the
results
of
the
investigation.
On
June
29,
1989,
CESI
submitted
a
supplemental
development
permit
application
to
the
Agency.
On September
21,
1989,
CESI
submitted
an
addendum
to
the
application
seeking
to
strike
condition
no.
2(c)ii
from
the
supplemental
permit
(Permit
No.
1987-
299—SP).
On
September
27,
1989,
the
Agency
denied
CESI’s
application
and
motion
to
strike
.
On
August
25,
1989,
CESI
submitted
an
application
for
an
operating
permit
for Area
IV.
(Agency
Record
at
1425-65.)
On
October
6,
1989,
the
Agency
denied
CESI’s application.
In the instant matter,
CESI
appeals
from
the
Agency’s
denial
of
both
the supplemental development permit and the
operating
permit
applications.
By
order
of
the
hearing
officer,
simultaneous
briefs
were
due
to
be
filed
no later
than January
16,
1990.
While
the Agency
timely
filed
its
brief,
CESI
failed
to
comply with
the January
deadline.
On March
8,
1990,
the Board entered an order directing
CESI
to
explain the delay and to
file
a motion for extension
of
time to file its brief.
CESI filed its motion stating that it
had
been unable to timely file its brief because the transcripts were
not prepared and requesting
an
extension
to
April
19,
1990
to
file
its brief.
On March 22,
1990,
the
Board
entered
an order directing
CESI
to
file
its
brief
no
later than April
2,
1990,
denying
the
Agency’s
request
to
decide
the
case
without
CESI’s
brief
and
allowing
the
Agency
to
file
a
reply brief.
CESI
filed
its brief
on April 3,
1990 with a letter stating that it was CESI’s intention
to
file
the
brief
on
April
2,
1990
by
flying
to
Chicago
and
personally delivering the brief.
CESI stated that
it was unable
to
do
so
because
the
pilot
refused
to
fly
due
to
bad
weather
conditions.
Although CESI should have filed a motion to file its
brief instanter setting forth the reasons for the one-day delay in
filing
its brief and requesting that the
Board accept the brief
instanter,
the
Board
accepts
the
late
filing
of
CESI’s
brief
because the letter sets
forth the
reasons
for failing
to timely
file the brief and because the one-day delay
in filing
is minimal
and
apparently
unavoidable.
Supplemental Development Permit
In its section 39(a)
letter, the Agency gave three reasons for
denying
CESI’s
application
for
a
supplemental
development
permit.
(Agency Record
at 1494-96.)
First,
the Agency stated that “n)o
111—Il 3
4
hydrogeologic justification has been provided demonstrating that
the one proposed additional groundwater monitoring well is adequate
(and
properly
located)
to
detect any
groundwater contamination
resulting from filling the trench in Area IV with waste.”
(j~.at
1494.)
The Agency noted that “g)iven
the fact that the procedures
for determining the extent of the waste filling in the trench area
were not carried out
in accordance with the plan approved by the
Agency nor the instructions given by the Agency,
the groundwater
monitoring
needs
to be designed
to deal with
the potential
that
waste was disposed directly on top of the bedrock and that leachate
from this waste may have contaminated the groundwater.”
(~c~.)
The
second
reason
given
by
the
Agency
in
denying
CESI’s
application
is
that
“CESI’s
application
suggests
that
the
possibility of groundwater contamination by organic
compounds
is
not of concern and therefore proposes to construct the additional
well using PVC and to omit organics as monitoring parameters for
the
groundwater.
The possibility of
organic contamination
is of
substantial
concern
and
consequently
the
groundwater
must
be
monitored for organics..
Constructing monitoring wells
of PVC
is
not acceptable
for purposes of conducting such monitoring.”
(~?i.
at 1495.)
The final reason stated in the Agency’s denial letter is that
“pursuant
to
35 Ill.
Adrn.
Code 807.661,
an annual evaluation of
the trust fund serving as the instrument of financial assurance for
closure/post—closure care should have been submitted to the Agency
by February 23,
1989.
Also,
documentation of an annual payment of
the trust fund should have been submitted by March 25,
1989.
The
Agency has not received either of these submittals.”
(u.)
Operating Permit for Area IV
The
Agency
gave
five
reasons
for
denying
CESI’s
application
for
an
operating
permit.
First,
the
Agency
stated
that
the
boring
logs
and
permeability
tests
provided
with
the
application
were
not
adequate
to
demonstrate
the
presence
of
the
clay
liner
with
a
minimum
thickness
of
10
feet
and
a
maximum
permeability
of
lxl0
-
7
cm/sec
required
by
condition
no.
6
of
Permit
No.
l987-l94-Sp
because:
(1) the location of boring no.
7
(monitoring well)
is not
given
on
the sketch showing the location of the test probes;
(2)
the surface elevations of the probes are not provided on the boring
logs;
(3) the brown sandy clay found between 7 and 10 feet of depth
of boring ST-4 has not been tested for permeability; and
(4) boring
logs nos. 9—11 of the remedial action report dated October 31, 1988
show porous materials within
ten
feet
of the top
of
the
liner.
(Id.
at 1504.)
Secondly,
the Agency stated that
a
September
25,
1989
pre—
operational
inspection
performed
by
the
Agency
revealed
the
following deficiencies:
(1) material deposited on top of the clay
liner
in
the
eastern
quarter
of
Area
IV
so
that
no
visual
1 11
-
1
1
5
inspection could be
made;
and
(2)
failure to
construct drainage
controls and haul roads
in accordance with the plans included in
Permit No.
1984—3—DE.
(Id.
at 1504—05.)
Thirdly,
pursuant
to
35
Ill.
Adm Code
807.661,
the Agency
stated that CESI failed to submit an annual evaluaticin of the trust
fund
serving
as
the
instrument
of
financial
assurance
for
closure/post-closure
care by
the requisite date
of February
23,
1989 and failed to submit documentation of an annual payment to the
trust fund by March
25, 1989.
(~.
at 1505.)
Fourthly,
the Agency
stated
that
CESI
had
not
obtained
a
supplemental development permit as required by condition no. 2(c)ii
of
Permit
No.
1987-299-SP
for the remedial area
and,
therefore,
could not obtain an operating permit for Area IV.
(Id.)
Lastly,
the
Agency
stated
that
t’since
Area
IV
is
an
integral
part of this facility,
an operating permit for it cannot be issued
until
the
existing
problems
of
Areas
I,
II
and
III
have
been
remediated.
These problems
include
the
increased
potential
for
erosion, run—off, leachate migration and groundwater contamination
caused by over—filling and over—steepening the slopes of Areas
I,
II and III.
(Id.)
DISCUSSION
Before
reaching
the
substantive
merits
of
this
permit
review, the Board must address a preliminary issue raised by CESI
regarding
the Agency’s denial
statements.
Of
the
eight “denial
reasons” given by the Agency,
only two are supported by reference
to a specific section of the regulations which may be violated
if
the permits were granted.
(Agency Record
at
1494-96,
1504-06.)
Three
of the
“denial
reasons”
refer
to violations
of conditions
imposed in previous permits.
The remaining three “denial reasons”
do
not refer
to
any section
of
the Act or
regulations
or other
previously imposed permit conditions.
CESI asserts that the permit
denial letters issued by the Agency
fail to meet the requirements
of
section
39(a)
of theAct
and
are,
therefore,
“defective
and
invalid
as a matter of statute.”
(CESI
Brief at
23.)
The Agency
responds that the “deficiencies are stated with sufficient detail
to inform
CESI
of their basis” and, therefore,
are in compliance
with section 39(a)
of the Act.
(Agency Reply Brief at
18.)
Section 39(a) of the Act requires that, within 90 days1 of the
filing of the application,
the Agency provide the applicant with
a
detailed
statement
of
the
reasons
for
denying
the
permit
application.
(Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1039(a).)
This
90—day
period
is
extended
to
180
days
when
the
application
is
for
a
permit to develop
a
landfill.
(Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1039(a).)
ii 1—i 15
6
Section
39(a)
provides
that
“(such
statements
shall
include,
but
are
not
limited
to
the
following:
(1)
the
sections
of
the
Act
which
may be violated if the permit were granted;
(2) the provisions
of
the regulations, promulgated under this Act, which may be violated
if the permit were granted;
(3) the specific type of
information,
if
any,
which the Agency deems the applicant fail~d to provide;
(and
(4)
a
statement
of
specific
reasons why the
Act and
the
regulations might not be met
if the permit were granted.”
(~.)
If the Agency fails to act within the specified time period,
the
applicant may deem the permit issued.
(~.
The language of section 39(a) clearly requires that the Agency
specifically
set
forth
the
applicable
sections
of
the Act
and
regulations
upon
which
it
based
its
denial.
(Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1039(a); City
of Metropolis
v.
IEPA,
PCB 90—8
(February
22,
1990).)
The Board’s review of the plain language
of section
39(a)
and the denial statements
issued in this matter
supports
the
conclusion
that
the
Agency
has
failed
to
comply
with
the requirements of the Act.
The
“section
39(a)
denial
statement
requirements”
are
consistent with the Act’s mandate that the Agency issue
a permit
upon
proof
by
the applicant
that its
facility will
not cause
a
violation
of the Act or regulations.
(Ill.
Rev.
Stat.
1987,
ch.
111 1/2, par. 1039(a).)
The intent of section 39(a)
is to require
the
Agency
to
issue
its
decision
in
a
timely
manner
with
information sufficient for the applicant to determine the bases for
the
Agency’s
determination.
(City
of Metropolis v.
IEPA,
PCB 90—
8
(February
22,
1990).)
The
sole
issue
before
the
Board
in
a
permit
review
is
whether
the
applicant
has
proven
that
the
application,
as
submitted
to
the
Agency,
demonstrates
that
no
violation of the Act and regulations would occur if the permit were
granted.
(Joliet Sand
& Gravel v.
IPCB,
163 Ill. App.
3d 830,
516
N.E.2d 955,
958
(3d Dist.
1987).)
“The burden of proof
is placed
upon the applicant,
(in a permit appeal review before the Board,
to demonstrate that the reasons
for denial detailed by the Agency
are inadequate to support a finding that permit issuance will cause
a violation of the Act or Board rules.”
(Technical Services Co~
Inc.
v.
IEPA,
PCB 81-105 at
2 (November
5,
1981).)
In order for
an
applicant
to
adequately
prepare
its
case
in
a
permit
review
before
the
Board
the
applicant
must
be
given
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
which
support
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
on review,
i.e.,
whether the applicant has
ii 1—i l(
7
demonstrated
that no
violation
of
the Act
or
regulations would
occur
if
the
permit
were
granted.
Principles of fundamental fairness require that an applicant
be
given
notice
of
the
statutory
and
regulatory
bases
for
permit
denial.
Fundamental
fairness
would
be
violated
if
the
Board
were
to
supply
this
missing
information
on
its
own
initiative
at
the
permit-review level.
Such action by the Board would be not only
inconsistent
with
the
plain
language
of
section
39(a),
but
would
also
require
that
the
applicant
anticipate
what
the
Board
will
construe
as
the
statutory
and
regulatory
bases
for
the
Agency’s
permit denial.
The Act’s permit provisions do not provide
for a
system where
the applicant
is given the statutory and regulatory
bases for permit denial after the applicant has argued the merits
of that denial.
A
review
of
the
separation
of
functions
between
the Agency and
the
Board
in
the
permit
process
also
supports
the
Board’s
determination that it is not allowed to proceed to the substantive
merits of this permit review absent denial statements that comport
with the requirements of section 39(a).
(See generally,
Landfill,
Inc.
v.
PCB,
74 Ill.2d 541,
387 N.E,2d 258, 264
(1978).)
Pursuant
to
section
4(g)
of
the
Act,
the
Agency
has
the
duty
to
administer
the
permit
system.
(Ill.
Rev.
Stat.
1987,
ch.
ill
1/2,
par.
1004(g).)
Section
39
of
the Act directs
the
Agency
to
issue
permits
upon
an
applicant’s
proof
that
the
proposed
facility
will
comply
with
the
Act
and
regulations,
and
authorizes
the
imposition
of special permit conditions necessary to accomplish the purposes
of
the
Act.
(Ill.
Rev.
Stat.
1987,
ch.
ill
1/2,
par.
1039.)
Therefore,
it
is
the
Agency
with
its
technical
staff
capable of
performing
independent
investigations
which
makes
the
initial
determination
of
whether
to
issue
a
permit.
(Mathers
v.
PCB,
107
Ill.
App.
3d
729,
438 N.E.2d 213,218
(3d Dist.
1982).)
Pursuant
to
section
40
of
the
Act,
the
Board,
sitting
in
its
quasi-judicial
capacity,
decides
whether
the
applicant
has
proven
that
the
application,
as
submitted
to
the
Agency,
demonstrated
that
no
violation
of
the
Act
would
occur
if
the
permit
were
granted.
(Joliet Sand
& Gravel
v.
IPCB,
163
Ill.
App.
3d
830,
516 N.E.2d
955,
958
(3d
Dist.
1987)
.)
However, the Board does not possess the
power to issue permits.
Because the Agency has failed to perform its statutory duty,
the Board cannot perform its duty
in
this
permit
review.
Where
the
Agency has failed to support its permit denial by setting forth the
applicable sections of the Act and regulations,
the
Board cannot
step
in at the review level and supply this missing information.
The separation
of duties does not allow the Board
to examine the
record
in
an
attempt
to
glean
and
deduce
the
Agency’s
intent
in
denying
the
requested
permit.
If
the
Board
were
to
“plug
in”
a
section
of
the
Act
or
regulations
to
support
an
Agency
permit
denial,
the
Board
would
exceed
its
statutory
authority
and
principles of
fundarnental fairness would be violated.
Ill-I 17
8
Without this information,
however,
the Board cannot perform
its
function
of
determining
whether
the applicant
has met
its
burden of demonstrating that no violation of the Act or regulations
would
occur
if
the permit
were
granted.
Therefore,
the Board
concludes that the instant matter must be reinandedto the Agency
with directions to supply the statutory and regulatory bases for
those “denial reasons” not so supported.
The Board’s decision to
remand this matter to the Agency to cure the deficiencies
in
its
denial
statements
is
consistent
with
action
taken
by
the
Board
recently
in
City
of
Metropolis
v.
IEPA,
PCB
90-8
(February
22,
1990).)
In City of Metropolis, the City filed a motion for summary
judgment prior to hearing based upon the Agency’s failure to cite
specific
sections
of
the Act and regulations
in
support
of
its
permit denial statement.
(PCB 90-8 at 1.)
The City asserted that
because
the
denial
letter
failed
to
meet
the
requirements
of
section
39(a),
the
Agency
failed
to
meet
its
90-day
statutory
deadline
for
taking
final
action
and,
therefore,
the
permit
should
issue by operation of law.
(Id.)
The City requested that the Board
grant summary judgment,
reverse the permit denial
and direct the
Agency to
issue the permit.
(Id.)
As
in the, instant matter,
the
Agency argued that its denial statement sufficiently informed the
City of the reasons for denial and, therefore, complied with 39(a).
The
Board
denied
the
City’s
motion
for
summary
judgement.
(~.
at 2.)
In so doing, the Board rejected the City’s claim that
the failure
to cite the Act and regulations rendered the denial
statement
null
and
void
for
purposes
of
meeting
the
90-day
statutory deadline and, consequently, the Board concluded that the
permit would not issue by operation of
law.
(~.)
However, the
Board
also
found that
“the language of
s)ection
39(a)
is ‘clear
that
the
Agency
must
specifically
set
forth
the
applicable
sections
of the Act and regulations upon which it based its denial.”
(~.)
Therefore,
the
Board
ordered the Agency
to provide
the missing
information within 14 days of the date of the Board’s order.
~
In
City
of
Metropolis,
the
Board
refused
to
order
the
issuance
of
a
permit
by
operation
of
law
on
the
basis
of
the
Agency’s
failure to comply with section 39(a)
.
While
the
Agency’s
denial
statement
did
not
comply
with
section
39(a),
such
failure
to comply is not tantamount to a failure to act which would trigger
the issuance
of
a permit by
operation
of
law.
(Ill.
Rev.
Stat.
1987,
ch.
ill
1/2,
par.
1039(a).)
However, the Board did require
that
the
Agency
cure
the
defect
in
its
denial
statement
by
directing
the
Agency
to
provide
the missing
information.
The
Board’s action
in City of Metropolis recognizes the principles of
fundamental
fairness and the requirements
of the Act by directing
the Agency to comply with section 39(a)
enabling the applicant to
have before
it the requisite
39(a)
information prior to hearing.
Although
no motion
for summary
judgement
was
filed
in
the
instant matter,
a similar result
is reached here by remanding the
ill-i IS
9
matter to the Agency to cure its section 39(a)
deficiencies.
By
remanding
this matter
to
the Agency
within
the
statutory
time
period, which has been extended by CESI by the filing of a “Waiver
of Decision Deadline”,
the Board has complied with
the provision
of section
40(a) (2)
of the Act requiring
a Board decision within
a
specified
time
period.
(Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1040(a) (2).)
The
Agency
is
directed
to
amend
its
denial
statements,
consistent with
this opinion,
within
28 days
of the
date of this order.
Within
35 days of the Agency’s action,
CESI
may
either
file
an
amended
petition
for
review
or
notify
the
Board
and the Agency
of its intent to
stand on
its original petition.
CESI
should
also
indicate
when
filing
its petition
whether
it
requests
a
hearing
on
the
Agency’s
amended denial
statements
or
additional briefing.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on the
/LI~Z-
day of
___________________
,
1990 by a vote of
7-c
~
/
Dorothy N.
Günn, Clerk
Illinois P9ilution Control
Board
Ill—itO
