ILLINOIS POLLUTION CONTROL BOARD
June
22,
1989
SEXTON FILING AND GRADING
CONTRACTORS CORPORATION,
Petitioner,
v.
)
PCB 88—116
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
DISSENTING OPINION
(by J.
Anderson):
I must respectfully dissent from the holding
of
the
majority.
As
in the previous case
involving this Petitioner
and
a Closure/Post—closure Care
(CPC)
plan
(John Sexton Contractors
Co.
v.
EPA, PCB 88—139, decided February
23, 1989),
the Board
majority,
inter
alia,
ignores
its own prior statements
and the
uncontroverted history of
the adoption
of the CPC plan program
in
Illinois.
The several
flaws
in the majority’s
logic
in that case
are detailed
in the lengthy Dissenting Opinion,
which
is equally
applicable
and expressly
incorporated herein.
There
remain
a few matters which deserve further comment
in
this proceeding.
First,
the majority asserts
(p.
4)
that Sexton “fails to
recognize”
that the Board promulgated the CPC plan
requirements
of R84—22C pursuant
to Sections
5,
22 and
27
of the Act,
rather
than simply Section 21.1.
The majority then cites
to page 19943
of
the Illinois Register
of December
6,
1985,
as support
for
this
statement and
as justification for characterizing CPC plan
applications as permit applications.*
It
is
interesting that the
majority did not mention
its own formal Opinion adopted
in R84—
22C (see attached), which Opinion
is
customarily excluded
from
publication
in the Illinois Register.
Had the majority cited
to
that Opinion, which articulates the bases
for
its rulemaking,
it
*
The majority did not cite
to page 18944
of
the December
6,
1985
Illinois Register, which unequivocally
states that “these rules
implement the requirements
of Section
21.1
of the Environmental
Protection Act that operators
of non—hazardous waste
landfills
provide
financial assurance
for closure and post—closure
care”.
No mention
is made of any other Section
of the Act or
any other
purposes of the rules.
100-2~5
—2—
would have been unable
to find
a single line of text
in support
of
its position.
The reason for this lack of support
is clear:
as noted
in the dissenting opinion
from PCB 88—139,
the majority
has chosen
to “rewrite the history of the Board’s closure
and
post—closure
rules”
(p.
5).
It
is true that Sections
5,
22 and
27
of the Act were invoked
in R84—22C, but not with
respect
to
the substantive CPC plan requirements
(the opinion of
the Board
in R84—22C includes
a segment headed “STATUTORY PROVISIONS”
(pp.
6—7).
Sections
5,
22 and
27 are not mentioned;
only Sections
21(d)
and 21.1 are included).
Moreover,
the core
assumption upon
which
the majority now grounds
its holding
(i.e.,
that the
technical closure and post—closure requirements stand
alone,
without
reference
to determining closure
and post—closure
care
costs)
flies
in
the face of the Board’s enunciated
“Phase—in
Provisions”
as set
forth
on page
8
of the opinion
in R84—22C,
which states
that operators on March
1,
1985 “could avoid
the
financial
assurance requirement
by ceasing
to accept waste and
initiating
closure
pursuant
to
existing
permit
conditions”
(emphasis
added).
The
emphasized
language
makes
clear
that
closure requirements have meaning only within
the context
of
financial assurance requirements
and do not stand
alone;
otherwise,
the technical closure
and post—closure care
requirements would have applied
immediately to sites existing on
March
1,
1985.
Second,
the majority inaccurately characterizes Sexton’s
arguments.
On page
3,
Sexton
is claimed
to argue
“that
the
Agency cannot
review an aspect of
site management
vital
to
environmentally
sound closure
and post—closure care”.
In
truth,
Sexton
nowhere makes
this argument.
Rather, Sexton argues that
the Agency cannot,
in
the guise of
review of
a CPC plan
application,
revisit
and
rewrite
the
underlying
permit.
The
difference
is crucial;
this case presents an example
of
the
application of
that difference
and
illustrates
the pitfalls of
the majority’s approach.
In
its opinion
(p.
14),
the
majority attempts
to justify
the
imposition
of special condition
12 by noting
the
location
of
the
three monitoring
wells
and by suggesting
that
1987 monitoring
data,
notwithstanding
the testimony of Sexton’s expert witness
and the results of 15 years*
monitoring data
to
the contrary,
“casts
a
significant doubt on the reality of Sexton’s simple
model
of groundwater
flow”.
Upon reflection,
it
is
clear that
not only does such apparently aberrent data scarcely arouse
“significant doubt”,
but such doubt
as may exist has relevance
primarily
to
the design and operation of the landfill,
rather
than to closure
and post—closure care.
It
i~inThed
disincjcnuou~
to
SU~dost.
thnL ~ny
IC
LC
ni
in
a
groundwater
monitoring
program
is
oE
consequence
to
the
CPC
plan
but
not
to
the
design
and
operating
permits
upon
which
that
CPC
plan
is
founded.
The requirements which must
be satisfied
100—206
—3—
during closure and post—closure care of necessity must be keyed
to
the realities of design and operation as previously permitted
by
the
Agency;
to
hold
otherwise
is
to
effectively
submerge
the
design
and
operating
permit
into
the
CPC
plan,
the
“condition”
thereby
swallowing
the
permit.
Finally,
the
majority
finds
that
the
Agency
has
not
presently applied
the draft GMN guideline in
a way that gives it
the effect
of
a rule
(p. 8).
I disagree.
The majority
acknowledges
that “adherence
to the provisions of
the resource
cannot establish compliance”
(p.
7) yet
ignores the fact that
special condition 12 provides
for just that.
Condition
12 states
that one
of two alternative modes
of compliance available
to
Sexton
is
for Sexton
to “submit
a revised groundwater monitoring
plan
in
accordance
with
the
draft
“Groundwater
Monitoring
Network”, enclosed
“(emphasis
added).
If
this
does
not
amount
to
proclaiming
that adherence
to the draft guidelines establishes
compliance,
I
am
at
a
loss
to
say
what
does.
For
the
foregoing
reasons,
I
respectfully
dissent.
~/~ToanG. Anderson
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois Pollution Control
Board,
hereby
certify
that
the
abo~~eDissenting
Opinion
was
submitted
on
the
~
day
of
_____________,
1989.
I
f
/
//
~/
I
?-
(L~1
~//).
/•
Dorothy M./~unn, Clerk
Illinois
?Dilution
Control
Board
100--20 7