ILLINOIS POLLUTION CONTROL BOARD

February 2,

1989

JOHN SEXTON CONTRACTORS COMPANY,

Petitioner,

v.

)

PCB 88—139

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

(by J.

Anderson and

14.

Nardulli):

We must respectfully dissent

from the action of the majority

in this case.

~3yits action today,

the majority has,

we believe,

risked

seriously undermining the integrity of

the solid waste

permitting system and ignored

both the Act and

its own

regulations relating to closure

and post—closure care of solid

waste management

facilities.

At the outset, we wish

to emphasize

that we are not

questioning the technical

role the Agency must play

in

implementing

any regulatory scheme.

However,

in any regulatory

system,

there must be statutory and regulatory provisions

somewhere which enunciate that

role by way of directives,

criteria or other similar devices which guide or provide

boundaries

for Agency determinations.

The problem with this

case,

in our view,

is

that

the Agency’s determinations

are devoid

of

such underpinnings;

indeed,

the majority in

its own

determination on appeal

has veered away

from such

underpinnings.

We believe

such an approach

is inherently

incompatible with the essential rationale

for requiring

a

regulatory framework within which all decision—makers are

to make

their determinations.

This unusually lengthy dissenting opinion

reflects the nature and depth of our concern

in this matter.

The Nature of Closure

and Post—Closure Plan Aoplications

The majority essentially agrees with the Agency’s view that

a closure plan application

is,

in fact,

a supplemental permit

application

(Pes.

Br.

at

21; Op.

at

4).

The majority claims both

Sections 21.1 and

22 of the Act as statutory authority

for this

view.

However, Section

21.1

of the Act,

which establishes the

solid waste closure and post-closure financial assurance

requirement,

makes no reference

to any such permit modification

system.

It specifically limits the Agency’s options to approval

or disapproval

of the financial assures;

in so doing,

it

stands

~)6—12I

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—2—

in stark contrast

to the permit conditioning discretion conferred

by Section

39(a)

of the Act.

Nor can Section 22 of the Act, which

sets forth

the Board’s

general rulemaking authority,

be cited

as support

for the

proposition that

a closure plan application

is

a supplemental

permit application.

First,

that Section’s

list of Board

regulatory powers includes a specific provision

for requirements

and standards relative

to closure and post—closure care of

hazardous waste disposal sites,

yet

is silent r~arding non—

hazardous solid waste disposal sites which

are the subject of

Section 21.1.

Even though the introductory paragraph of Section

22 indicates the listed powers are not

to be viewed

as limiting

the generality of the grant of regulatory authority

to the Board,

that grant of authority is itself limited

to such regulations

as

“promote the purposes of this Title”.

The “purposes of this

Title”

as regards closure and post—closure care plans

for non—

hazardous

solid waste sites

is

found

exclusively

in Section

21.1.

Wishful thinking will not make

it otherwise.

In adopting

the closure

and post—closure

(“CPC”) plan

(35

Ill.

Adm.

Code

807,

Subparts

F and F),

this Board

in 1985 acted

consistently with Section 21.1

(and by extension,

inconsistently

with its Opinion

today).

In the Section describing

the purpose,

scope

and applicability of the regulations

(35 Ill.

Adm.

Code

807.501)

the Board explicitly states as follows:

1.

Closure plans are not permits, but “will become permit

conditions pursuant to Section 807.206”

(subsection

(b);

emphasis added);

2.

The closure

and post—closure care plans are limited

in

purpose to

forming the basis

of the cost estimates and

financial assurance required by Subpart

F

for disposal

sites as well as

for determining whether

a unit

is

a

disposal unit

or

indefinite storage

unit, which must

provide financial assurance

(subsection

(C)).

As

to the former,

the majority seeks to read out of the

section the “will

become” qualifier.

It does so despite

its own

Opinion supporting

the adopting of

the temporary CPC regulations

(IN THE MATTER OF:

FINANCIAL ASSURANCE FOR CLOSURE AND POST-

CLOSURE CARE OF WASTE DISPOSAL SITES

(TEMPORARY RULES),

R84—22B,

OPINION OF THE BOARD, April

4,

1985).

Some background should be noted

here.

The temporary rules

adopted

in docket P84—22B bridged

the gap between

prior emergency

rules (R84—22A)

and

the final

rules (R84—22C) during

the period

of time an Economic Impact Study was underway.

The emergency

rules were preceeded by an even earlier effort; this earliest

version of the CPC rules was proposed

for first notice under

the

Administrative Procedure Act on July

19,

1984

(P84—22).

It

contained proposed

section 35

Ill. Adm.

Code 501(d), which

96—122

---

—3—

required existing disposal sites subject

to the new regulations

through operation of Section

21.1

to file their closure and post—

closure care plans

in the form of “applications for permit

modification” pursuant

to 35

Ill. l~dm.Code 807.209(c)

(emphasis

added).

Had this view prevailed,

today’s majority opinion could

claim substance.

Unfortunately for the majority,

that view did

not prevail:

even before

the emergency rules of docket P84—22(A)

were promulgated, the second notice for R84—22 had dropped

Section

501(d).

The reason or dropping

this originally—proposed

subsection

is made clear

in the April

4,

1985 Opinion of the Board

in P84—

22B,

cited previously.

That Opinion states that “fthe

closure

and post—closure care plans will become conditions of the site

permits”

(pg.

15) (emphasis added),

and reported that

the Board

had considered and rejected

the possibility of adopting an

alternative rule which

“just requires preparation

and maintenance

of

a plan even by permitted sites”

(Ibid, pg.

15).

Rejection of

that alternative,

it noted, was due

to two reasons.

First,

in

a

scheme where permits are required “it seems unwise”

to leave

closure

and post—closure elements out of the permit; second,

“because the plan is essential

to the cost estimate

and amount of

financial assurance,

prior Agency review

is necessary to

accomplish the purposes of Section 21.1 of the Act”.

In the

interim

until

full implementation of the CPC requirements, the

Board stated “operators will be required

to formalize plans only

with the first permit modifications”

(emphasis added)

(Id.)

The

OpThion of

the Board supporting adoption of

the permanent

rules

which now exist

(R84—22C, November

21,

1985) did not alter

the

scheme enunciated

in support of the temporary rules.

In view of the foregoing

it

is clear beyond dispute

that

closure plan applications are not themselves applications

for

permit modifications and that, except

at

the very inception of

docket P84—22,

this Board

has

not viewed them as such.

The

decision to attach the closure plans

to existing permits as

conditions

thereof was done

for policy reasons, not because of

a

strained

interpretation of Section 21.1

or Section

22,

and was

implemented

as an adjunct

to,

rather than an integral part of,

the permit modification process.

With respect

to

the point made by Section 807.501(c),

namely,

that closure plans are limited

in purpose

to satisfying

the financial assurance requirements of Section

21.1

of the Act,

the Board

has likewise affirmed

its position over the years.

It

did

so

in

its Opinion

in support

in the adoption of

final CPC

regulations

(IN THE MATTER

OF:

FINANCIAL ASSURANCE FOP CLOSURE

AND

POST-CLOSURE

CAPE

OF

WASTE

DISPOSAL

SITES

(ECONOMIC

IMPACT

OF

TEMPORARY

REGULATIONS

AND

ADOPTION

OF

FINAL

REGULATIONS),

P84—

22C,

OPINION OF THE BOARD, November

21,

1985).

That Opinion

states,

at page

1,

as

follows:

96—123

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—4—

“Public

Act

83—775

became

effective

on

September

24,

1983.

Provisions

of

this

law,

which

are

fully

set

out

below,

prohibited

certain

non—hazardous

waste

disposal

operations

after

March

1,

1985

without

a

performance

bond

or

other

security

for

the

purpose

of

insuring

closure

of

the

site

and

post—closure

care

in

accordance

with

the

Environmental

Protection

Act

and

Board

rules.

Section

21.1(b)

of

the

Act

required

the

Board

to

adopt

by

January

1,

1985

rules

which

specified

the

type

and

amount

of

the

bonds or other

securities.

On June

8,

1984,

the Board opened

this Docket

for

the

purpose

of

promulgating

regulations

implementing P.

A.

83—775”.

(Emphasis added).

Again,

on page

7,

the Board stated

the purposes of these

rules:

“The

rules

implement

the

bond

requirement

of

Section

21.1

of

the

Act

by

requiring

the

preparation

of

closure

and

post—closure

care

plans,

and

cost

estimates

based

on

these

plans.

The operator

is

required

to

provide

financial

assurance

in

an amount equal

to

the

cost

estimate.

Financial

assurance

can

be

given

by several mechanisms,

including

a trust

fund,

surety

bond,

letter

of

credit,

closure

insurance,

and,

for

non—commercial

sites,

self—insurance”.

Emphasis

added).

It

is difficult to imagine how the Board could

have more

explicitly

or more closely linked

the closure

and post—closure

requirements

of Subpart

E with the financial

assurance

requirements of Subpart

F.

The closure

and post—closure

requirements, therefore, must be viewed

not as

stand—alone

requirements but as necessary components of the financial

assurance mechanism mandated by Section

21.1 of the

7\ct.

As

such,

the Board’s power

to regulate

in this area

is derived

from

and governed by Section 21.1

of the Act,

not Section

22.

In sum, whatever difficulty

the majority has

in

distinguishing

an original closure plan application

from

a

conventional permit application

is of recent origin; as noted

above, this Board has clearly and consistently articulated

the

difference between

the two types of applications

for most of the

last five years.

Given the policy reasons enunciated and the

procedures

adopted by the Board

for “marrying”

closure plans

to

facility permits,

it

is obvious

that closure plan applications

progressed down

a separate administrative

track until

such time

as approved,

after which,

for policy reasons,

the plans became

9~--124

---

—5—

conditions of the respective permits.

This gradual

approach

to

assimilation of closure plans

(i.e., by incorporation with the

next permit modification submitted by the applicant during

the

transition period)

was carefully articulated

and purposely

designed

to avoid an unmanageable administrative burden.

To hold

otherwise

now,

at the end of that period of transition,

is to

rewrite the history of the Board’s closure

and post—closure

rules.

Policy

Implications

Statutory and regulatory authority

issues aside, we also do

not agree with the policy position

implicitly embraced by the

majority

in

this case.

This position

is that

the Agency should

not

be precluded,

in

imposing closure

and post—closure care

requirements

as conditions

of CPC plans,

from reasonable reliance

upon the current body of technical

knowledge.

It

is true that

some

of

the

older

permits

issued

by

the

Agency

were

issued

without

the benefit of today’s

technical knowledge.

It

is also

true

that today we have more knowledge of what can be harmful,

and

a better

idea of how and where

to monitor

for these

contaminants

than we did even

a few years

ago.

It

is another

thing, however,

to conclude that the closure

and post—closure

plan approval process

is the appropriate vehicle

for updating

requirements applicable

to existing sites.

In its Opinion supporting

the adoption of permanent

regulations governing

the preparation of closure and post—closure

care plans and cost estimates,

the Board

noted

the problems posed

by the potential change

in solid waste handling regulations

(then

under consideration by the Board

in docket P84—17;

now under

consideration

in docket P88—7).

It unequivocally rejected the

notion that the closure and post—closure

rules then being

adopted

had any such “updating”

effects, stating instead that “t)he

rules rely on

the existing closure and post—closure care

requirements

for sanitary landfills

in Part 807.

These are

subject

to revision

in P84—17.

Operators may be required to base

cost estimates on the existing regulations pending modification”

(Emphasis added).

In

the Matter

of:

Financial Assurance for

Closure

and Post—Closure Care of Waste Disposal Sites

(Economic

Impact of Temporary Regulations and Adoption of Final

Regulations), R84—22C (November

21,

1985,

page 7).

Sexton

correctly observes that “the Board did

not contemplate

that the

Agency would require everything

in Section 807.316(a), as

if the

information had never been furnished previously”

(Pet.

Br.

at

24,

citing

the Board’s Opinion

in P84—22C at

pg.

18).

Sexton might

have added

that neither

the Agency nor any other participant i~

the P84—22 proceedings,

including

the authors

of the Economic

Impact Study fEdS),

suggested otherwise.

The Board has previously noted

the shortcomings

in the

present

Solid Waste Rules.

It

has

emphasized

the

importance

and

urgency of modernizing

the State’s rules

for

the management of

96—125

---

—6—

non—hazardous wastes.

In the Matter of:~Development, Operating

and Reporting Requirements For Non—Hazardous Waste Landfills,

R88—7 (February 25,

1988, pages

1,

24,

25,

33,

48 and 62).

Nevertheless,

the Board should

not allow the Agency to open up

pre—existing permits

to impose requirements (as special

conditions

to closure and post—closure plans or otherwise)

which

are not authorized by the Act or current Board regulations.

It cannot be overlooked

that Sexton’s permit is of

relatively recent origin

(1983—1984).

Wider examination at

hearing,

the Agency’s permit reviewer, ?~r.

Schoenhard, was unable

to

identify any new “rules and

regulations” which might require

new special conditions,

or any new wastestreams received or any

groundwater monitoring results reported which might warrant

imposition of changes

to the approved groundwater monitoring plan

(T.

19—33).

Hence,

even if this application were

to be construed

as re—opening

the permit for reconsideration of existing permit

conditions and

terms,

the Agency has failed

to articulate

persuasively why Sexton’s permit should be

so reconsidered and

modified.

It

should also be noted that there were no suspect

monitoring readings or other environmentally related concerns

involved.

It

is also important

to remember

that it

is not

the function

of

a closure and post—closure plan and its financial assurance

instruments to serve

as an environmental liability insurance

policy.

Such liability insurance policies, unlike CPC plans,

relate

to liability that may be incurred for actual

or threatened

violations of the Act; irrespective of the presence

or absence of

CPC plans or financial assurances,

a site owner/operator remains

liable

under

an enforcement action

for any actual or threatened

environmental “upsets”

in violation of the Act

or

Board

regulations.

In fact,

the CPC financial assurances

are not

available

to the Agency or

the site’s owner/operator for use

in

addressing such liability.

Similarly, even though

the requirements of the

Act and Board

regulations relative

to closure and post—closure care and

monitoring may change*, such changes do not affect

the

owner/operator’s

ongoing liability for any environmental

damage.

In other words,

financial assurances

for closure and

post—closure care are

intended solely to assure that funds will

be available

to

the Agency to accomplish

the closure and post-

closure care provided

for

in the closure and post—closure care

plans (permit conditions)

in the event

that the owner/operator

*

The Board

notes

that Section 22.17

of

the Act required

5 years’

monitoring of gas, water

and settling at

a “completed”

sanitary

landfill

site at

the

time the Board’s closure and post—closure

rules were adopted.

Since

then,

Section 22.17

has been amended

to increase the monitoring

requirement

to

15 years

(P.A.

E~5—l240,

effective July

1,

1990).

96—12~

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—7—

fails

to do so

(see 35

Ill. Adm. Code 807.600, 807.620 and

807.622).

Costs are

to be estimated with respect to the area

to

be filled, costs of cover materials,

and the cost of moving,

grading, seeding and venting the cover

at the most expensive

point in

the site’s operating life

(Id.;

see also 35

Ill. Adm.

Code 807.624).

The financial assurance regulations provide that,

when the operator completes closure and post—closure care,

financial assurance is no longer required.

Thus,

closure and post—closure plans

and

financial

assurances are not designed to provide

for remediation of

releases, determination of the existence or non—existence of

releases or threats of releases,

or

for

any other purposes which

may be appropriate

to enforcement actions or

removals.

The

Agency’s attempted use of the closure and post—closure plan

approval process for such purposes is improper and contrary to

the best

interests of the Agency and the environment.

If,

for

instance, an apparent upset or

release of wastes should occur

at

a facility operating or closed

under

an Agency—conditioned

closure plan,

the effect of such conditions could

in some cases

serve

to limit

the Agency’s options.

It

is manifestly impossible

for

a closure plan,

per

Se,

to anticipate

the actions and

expenses which may be

imposed or assumed

in the event of

an

actual threat

to the environment.

Finally, with respect to policy,

one

is

left

to ponder

the

meaning and purpose of the State’s solid waste permitting system

and the Board’s strenuous efforts

in P84—17

and P88—7

to develop

new solid waste regulations.

If the Agency can impose

its

current ideas

upon permittees without regard either

as to what

the

facility’s permit has authorized

to be done or as

to what

wastes have been received at

the

facility in

the past, precisely

what role does

a permit play?

Landfill operators hereafter have

no assurance that the terms of their permits delineate

the

requirements with which

they will actually be compelled

to

comply.

Without

a shred

of evidence of violation of

the Act

or

of environmental harm,

such operators hereafter may be required

to

re—design their landfills

in the eleventh hour of their

operating lives

to suit the Agency’s latest concept of technical

propriety.

Similarly,

for what purpose does this Board

strive to

update

its solid waste regulations?

Landfill operators hereafter

have

no

assurance that

the

terms of Board regulations define

the

technical standards with which

they will actually be compelled to

comply.

Without an opportunity

to participate

in rulemaking

affecting

their concerns,

such operators hereafter may be

required

to restudy and redesign

their landfills in the eleventh

hour of their operating lives

or,

indeed, at any time

for new

landfill units,

to suit

the Agency’s latest concept of

technically appropriate requirements.

The Agency has candidly

admitted

that

these

concepts

may

be

untested,

unpublished

and

highly subjective.

They can be

found

in

draft

memos,

in

uncirculated guidelines,

in unexplained

“boiler plate” language

lodged

in

the Agency’s word—processing equipment, and

in the

96—127

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—8—

individual permit reviewer’s subjective inclinations

(T. ~30—

31,33—34,66—69).

Even

if one were

to endorse the

idea that the

Agency can impose special conditions

in CPC plans, we cannot

understand how such unsupported concepts can be viewed as

technically substantiated.

It is no answer

to

these concerns

to say, as the majority

does, that appeals may be taken

to the Board from “incorrect”

special conditions.

Having

thus authorized

the Agency to use

a

CPC plan application to re—open for decision matters settled

years ago

in the permitting process and/or

to impose updated

engineering judgments untested by the rulemaking process, how

will the Board

review such special conditions?

What criteria

will

it apply?

Must such criteria relate

to the provision of

financial assurances?

The majority asserts that the Agency may

impose conditions on closure plans “so long as those conditions

relate only

to closure and post—closure care”

(Op. at

4;

emphasis

in original).

This supposed standard

is of no value

in real—

world

terms.

Virtually

no activity at

a landfill

is devoid

of

impact on its closure

and

post—closure

care

needs.

Conversely,

few

if any “conditions”

on closure and post—closure care

requirements will have no

impact on daily landfilling

activities.

That is,

indeed,the point.

BURDEN

OF

PROOF

The

majority

correctly

asserts

that

the

burden

of

proof

is

on the applicant

in permit appeal cases.

Most of the majority’s

conclusions on the respective Special Conditions under

appeal are

premised upon Sexton’s failure

to carry this burden,

noting

in

several cases

that Sexton’s “primary thrust”

in support of

its

cause

is “directed against the Agency—imposed special condition”

(e.g., pg.

7,

re: Special Condition

6).

As Sexton noted

(Pet.

Br.,

1—4),

Sexton introduced three witnesses

to establish

its

prima facie case;

it contends that the burden of “going forward”

thereby passed

to the Agency.

We cannot but agree

with Sexton for two reasons.

First,

Sexton’s witnesses not only attacked the Agency’s special

conditions

as

not

necessary,

but

also

asserted

that

Sexton’s

plan

as proposed was adequate.

For example,

in the extensive expert

testimony by Mr.

Eldredge on behalf of Sexton with regards to

Special Condition(s)

17

(T.l14—l30),

Mr.

Eldredge not only

asserts that the Agency conditions are unneeded

(T.126), but

implicitly and explicitly defends

the adequacy of

the Sexton plan

as proposed and originally permitted by the Agency

in

1984

(e.g.,

Tl24,

127,128—129).

Second,

the Agency’s permit reviewer

utterly failed

to articulate any authority for imposing

conditions

in 1988 that are different

from those

imposed

in 1984

(T.

26—29);

this Board has within

its knowledge and may take

notice of the fact that,

contrary

to

the ~.gencypermit reviewer’s

implicit assertion (T.26),

rio

new Board

rules and

regulations

have been adopted since

1984 that would warrant re—opening

96—12S

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—9—

Sexton’s permit.

Surely,

something more than mere curiosity must

be

required

of

the

Agency

to

allow

it

to

summarily

discard

already

established

permit

requirements.

THE

SPECIAL

CONDITIONS

This dissenting opinion would

be incomplete without briefly

discussing

the contested special conditions which

the majority

has today ratified.

It should be remembered

that had the

majority joined

in our view of this case (i.e.,

that the Agency

cannot unilaterally add conditions to CPC plans),

the Agency,

under Section 21.1 of this Act

still could have refused

to

approve the plan,

and could have stated

the same reasons as

support

for its denial as

it has stated

in support of its

conditions.

Under

no circumstances would

these core issues have

been prevented from being presented to this Board on

appeal.

One should also note

in passing that these conditions were

evidently inserted by the Agency in substantial reliance upon

apparently erroneous assumptions,

e.g.,

the presumed

receipt by

Sexton

of “thousands of gallons” of liquid and other special

wastes.

While

it

is the applicant’s burden

to provide

the Agency

with

the

information

upon which

the Agency will base

its

determinations,

it

is

incumbent

upon

the

Agency

to

reasonably

apprise the applicant of what kinds of information will be

required, particularly where data before

the Agency

(e.g.,

supplemental waste stream permits)

is

inherently suspect.

It is

obvious from the record of this proceeding

that the mere grant of

a supplemental waste stream permit does not necessarily mean that

the permitted wastestream will be actually received, and that

the

Agency knew this

(Tr.

51—53,

156).

Nevertheless,

the majority in

effect authorizes the Agency

to rely upon such information.

Special Condition

4 requires Sexton

to prepare

and file

a

~parate

closure and post—closure care plan for

a “gas control

faci1fE~”.

A revised CPC plan

for the landfill and

a separate

CRC plan for the gas control activity

is

to be sent to

the Agency

within 90 days.

It cannot be contended that

a requirement

to

create

a plan in

the future, where

the conclusions of such

a

future plan are unknown and unlimited

in range,

can

serve

as

a

legitimate basis

for current “approval”

of

a plan or for

determining the appropriate amount of financial assurance

required at this time.

Moreover,

it

is clear

that the Agency

intends by this condition to impose closure and post—closure care

requirements that

run beyond

the 5—year statutory obligation

imposed by Section 22.17 of

the Act.

Since

the

majority has

determined

that the closure plan requirements of Subpart

E of its

Part 807

rules may require this result,

it should identify both

such “longer period

of

time”

as the Agency

is authorized

to

require,

and the specific regulation by which the Board has

established

such

period.

96—12 9

---

—10—

In its Opinion

(pg.

6),

the majority notes with

regard

to

Special Condition

4

(and elsewhere with regard

to other Agency—

imposed conditions)

that “the Agency simply did not

have

enough

information

from

Sexton

to

determine

appropriate

gas

control

measures”

and

that

in

the

absence

of

such

determination

“any

cost projection

is inappropriate”.

This

is manifestly true,

and

as true for the Agency as

it is for Sexton.

That being so, one

again

is led

to conclude that the Agency’s

“approval”

of Sexton’s

closure and post—closure care plans has no value as

a basis

for

implementing the bond requirement of Section 21.1 of the Act,

but

rather has value,

in the Agency’s view,

solely as an excuse

to

re—open matters previously settled by the

facility’s permit.

~pecial Condition

6 likewise

requires Sexton

to undertake

future action having uncertain outcomes.

In this case,

that

future action

is

a proposal

for

a leachate management program.

No time limit

for performance

is specified.

As noted previously,

no

hazardous

wastes

were

deposited

in

the landfill

as presumed

by

the Agency

in devising this Special Condition.

No cost impact

was evidently considered

by the Agency (although Sexton suggests

that this requirement could

result

in requiring

a leachate

collection system

retrofit costing

$800,000).

No support

is

cited by the Agency for

the permit reviewer’s “impression”

that

this condition

is necessary.

The majority thus today ratifies

a

condition which, besides being

intrinsically incapable of serving

as the basis

for current “approval”

of

a closure plan or

as

the

basis

for determining the currently appropriate amount of

financial assurance,

is without support

in the record.

Special Condition 17 shares

the characteristics of Special

Conditions

4 and

6

in that

its subsections

(a)(b)

and

(c)

require

Sexton

to undertake future actions having uncertain outcomes.

Subsection

(a)

requires Sexton to retest

its groundwater

monitoring wells

for an expanded number of parameters

for four

quarters.

Subsection

(b)

requires Sexton

to propose by a

supplemental permit request to be submitted within

61) days,

a

revised groundwater monitoring program, to include

at least one

additional up—gradient well and an unspecified number of

additional downgradient wells.

Subsection

(c)

requires Sexton

to

determine gradients and directions of qroundwaters through the

potential

leachate migration pathways and

to identify potentially

impacted water

sources.

No

timeframe for satisfaction of

subsection

(c)

is provided.

No

new

regulatory or other

requirements are cited by the Agency

in explanation as

to why the

groundwater monitoring program approved by the Agency

in

1984 has

been so altered.

The outcomes and the range of outcomes

from

these conditions are unspecified.

Once again,

the majority has

thus affirmed conditions which are unsuitable

for serving

as

a

basis

for current approval

of

a CPC plan or

for determining

the

currently appropriate amount of financial

assurance.

Special Condition 19(b)

imposes

a “twice background”

triggering number

for

initiation of assessment groundwater

monitoring.

Sexton correctly argues

that this

is arbitrary and

96—130

---

—11—

without

statutory,

regulatory

or

scientific

basis.

While

it

could

be

argued

that

Sexton’s

own

proposal

is

at

best

ambiguous

and

arbitrary,

that

is

not

the

point.

The

majority

today

ratifies

wholly

arbitrary

conditions

as

a

“cure”

for

ambiguity.

Consider

the

hypothetical

situation

in

which

adjacent

facilities

may

thus

have

completely

different

triggering

numbers

for

the

same

parameter

and

where

the

downgradient

facility

“benefits”

from

the

omissions

and

violations

of

its

up—gradient

neighbor:

if,

for

instance, the up—gradient facility releases leachate

containing

500

ppm

tetrachlorodibenzo—p—dioxins

into

the

groundwater,

the downgradient facility’s “triggering point”,

under

the

majority’s

opinion, becomes

1000 ppm.

This

is

neither

rational nor protective of

the environment.

Special Condition 20 imposes conditions on the use

of

municipal wastewater treatment plant sludge as

a

soil

conditioner.

Sexton

asserts

this

is subject solely to permitting

requirements imposed

by the Agency’s Division of Water Pollution

Control

under

the NPDES program.

Here,

we would concur with the

outcome,

if not

the

reasoning,

of the majority.

NPDES

requirements clearly do

not apply

in this regard

to the use of

wastes in

a sanitary landfill.

In

summary,

we

believe

that

the

majority,

in

its

understandable

desire

to

“do

something”

about

the

landfill

situation,

has

overridden

its

own

regulatory system,

present and

future;

in

a

very

real

sense,

the

majority

has

encouraged

instead

a “desktop” regulation—by—permit—reviewer “system”

to be reviewed

by

the

Board,

from

scratch,

case

by

case,

in

a

contested

case

setting.

This creates

a chaotic, balkanized, environmentally

unsubstantiated system

for landfill design and operation, weakens

enforcement, and cuts out the full public participation and

careful scientific assessment otherwise available

in

a regulatory

proceeding.

We

firmly believe that such an

ad hoc system serves

to

weaken,

not

strengthen,

true environmental protection.

For

the

foregoing

reasons,

we

dissent

from

the

opinion

of

the

majority.

~‘

~

an Anderson,

Board Member

96—131

---

—12—

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Dissenting

Opinion

was

submitted

on

the

~Q’~”

day

of

~-t--.--~tJ

,

1989.

Dorothy

M.

inn,

Clerk

Illinois

Poflution

Control

Board

96—132