ILLINOIS POLLUTION CONTROL BOARD
February 23, 1989
JOHN SEXTON CONTRACTORS COMPANY,
)
Petitioner,
v.
)
PCB 88—139
)
ILLINO1S ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
OPINION OF THE BOARD (by B. Forcade):
Today’s Opinion supports the Board’s Order of February 2,
1989, in this matter.
This matter comes before the Board on the August 30, 1988
appeal by the Petitioner, John Sexton Contractors Company
(“Sexton”) of certain conditions imposed by the Environmental
Protection Agency (“Agency”) in Sexton’s closure and post—closure
plan filed pursuant to the Environmental Protection Act (“Act”),
Ill. Rev. Stat. cli. 111—1/2, par. 1001—52 (1988), for its
Lansing—Sexton Landfill located in Cook County, Illinois.
The landfill is located on approximately 60 acres at 170th
Street east of Torrance Avenue. The landfill was developed at an
existing clay hole mined for the purpose of manufacturing
bricks. On June 5, 1972, the Agency issued an Operational Permit
for the installation and operation of the solid waste disposal
site consisting of approximately 20 acres. On March 18, 1983,
the Agency issued a supplemental permit allowing Sexton to
operate on approximately 40 acres. Sexton has operated, and
continues to operate, the site pursuant to those permits. The
average annual waste received at the site is approximately
300,000 cubic yards. Petition at 2.
As originally filed, the appeal objected to “Special
Conditions” 4, 17(b), and 19(b) imposed by the Agency on July 26,
1988, in its approval of the plan. The approved plan, including
the Agency—imposed special conditions was granted in the form of
a Supplemental Permit (No. l988—084—SP).
On October 19, 1988, Sexton filed a Motion to Amend Petition
and a First Amendment to Petition. The attempted amendment
sought to additionally appeal Special Conditions 6, 17(a), 17(c).
and 20. On October 26, 1988, the Agency filed its Objection to
Petitioner’s Motion to Amend Petition. On November 2, 1988,
96—191
—2—
Sexton filed a Response to Respondent’s Objection to Petitioner’s
Motion to Amend Petition; however, by Order of October
28, 1988
(also filed with the Board on November 2, 1988), the Hearing
Officer in this case had already allowed the Sexton motion and
o-rderec3 the Motion to Amend Petition to be considered filed
instanter.
Hearing was held as previously scheduled on November 3,
1988. Sexton called three witnesses, including Mr. James D.
Schoenhard, the Agency permit reviewer, who was questione~i by
Sexton’s counsel as under cross examination pursuant to Board
rules. The Agency called no witnesses, relying instead upon its
cross—examination of the Sexton witnesses. The attorney for the
Village of Lansing and a reporter for the Lansing Times newspaper
were present for some of the hearing, no other members of the
public attended the hearing.
Sexton filed its brief on December 9, 1988; the Agency filed
its brief on December 21, 1988. Since the “hard copies” of
Sexton’s brief were received on December 9, 1988, one day after
the due date set by the Hearing Officer, Sexton filed a Motion
for Leave to file Brief Instanter (Sexton had provided the Board
and the Agency with a Faxed copy of the Brief on December 8,
1988). That Motion was granted by the Board on December 15,
1988.
On January 3, 1989, Sexton filed a Motion for Leave to File
Petitioner’s Response to Respondent’s Brief Instanter and
Petitioner’s Response to Respondent’s Brief. The Board granted
the motion on January 5, 1989.
The regulations at issue in this proceeding are those
relating to Solid Waste facilities, 35 Ill. Adm. Code Part 807.
The regulations pertaining to Closure and Post—Closure Care,
SubPart E, Sections 807.501—807.524, are particularly relevant.
Those regulations were adopted in proceeding P84—22, and
published at 9 Ill. Peg. 6722 (May 10, 1985) (effective April 29,
1985 as temporary rules) and at 9 Ill. Reg 18942 (Dec. 6, 1985)
(effective November 25,1985 as permanent rules).
TIMELINESS OF THE FIRST AMENDMENT TO PETITION
As its first argument in its closing brief, the Agency
contends that the Hearing Officer improperly allowed Sexton to
amend its petition to seek review of conditions 6, 17(a), 17(c),
and 19(b) after the 35—day deadline for appeals prescribed by
Section 40(a) of the Act. The Agency asserts that the First
Amendment to Petition is “tantamount to a new appeal” and was
thus not timely filed. Sexton argues that the additional counts
caused no prejudice to the Agency, that disallowance of its
motion would cause prejudice to Sexton, and that such amendment
is authorized by Board procedural rules. See 35 Ill. Adm. Code
103. 210.
96—192
—3—
Based on the facts presented here, the Board agrees with
Sexton and the Hearing Officer. Sexton timely filed its appeal
pursuant to Section 40(a) of the Act so as to confer jurisdiction
upon the Board to review the “decision.of the Agency.” This is
conditioned, however, upon the proviso that no undue surprise
results from such an amendment. No such undue surprise is
alleged by the Agency.
The Board specifically does not address the situation where
an amendment is opposed by argument and facts to show that the
amendment would adversely affect an opposing party’s ability to
prepare its case. Nor does the Board address what effect a
subsequently filed amendment would have on the timeframes for
Board decision as stated in the Act. These questions the Board
must leave for another day.
THE NATURE OF CLOSURE AND POST-CLOSURE PLAN APPLICATIONS
Sexton advances one argument as grounds for striking Special
Conditions 4, 6, and 17 in their entirety. That argument is that
the Agency “improperly” attempted to treat Sexton’s Closure and
Post—closure Plan application as a developmental permit applica-
tion. As the Sexton brief puts it, “the Agency’s permit
reviewer in this case, James D. Schoenhard, stated clearly for
the record that every such request is, in effect, an application
which allows the Agency to review again all of the developmental,
design, construction, operation, and monitoring activities at the
site.” Sexton Post—Hearing Brief at 23—24 (citing B. 59).
Sexton asserts that in so doing, “the Agency is improperly using
the March 1, 1988 deadline for closure/post—closure care permit
applications as an opportunity to “clean house” by getting rid of
all the old Operating Permits that have what the Agency deems to
be “inadequate” monitoring programs for groundwater and methane
gas, and “inadequate” provisions for leachate and/or gas
collection or treatment, all as judged by draft guidance which
the Agency is applying as if they were rules.” Sexton Post—
Hearing Brief at 25.
For its part, the Agency asserts, on behalf of each of the
contested conditions, that such condition is required to generate
information sufficient to assure the Agency that the site will
not present a threat to human health or the environment (or that
the site would be closed in a manner that would prevent such a
threat, or that the site would not violate the Act or Board
Regulations). In defense of Special Condition 17, the Agency
states its position succinctly:
Since a closure plan does seek to modify a
solid waste management site, the Agency was
correct in considering Sexton’s Closure and
Post—Closure Plan Application as a supplement-
al permit application. Agency Response at 21.
96—19 3
—4—
In its response to the Agency’s brief, Sexton argues that
the Agency “did not find that Sexton’s current or proposed
programs would violate the Act if implemented” or that the
P~gency’sconditions 4, 6, and 17 were necessary to ensure
compliance. Rather, these conditions “were imposed for the
express purpose of obtaining further information in the form of
new permit applications.” Sexton Reply at 5.
Sexton then states that if the Bo:ird allows such conditions,
“it will create a situation in which an applicant for a permit
will never obtain a single, definitive permit from the Agency.”
Id. (emphasis in original). Sexton suggests that the Agency
could have addressed its concerns either through enforcement
actions to obtain an Order from the Board to remedy deficient
programs, Id. at 6, or through permit conditions which require a
certain level of performance rather than a continuing permit
application process. Id. at 7—8.
The Board does not construe its solid waste closure and
post—closure rules, 35 Ill. Adm. Code 807.500—807.666, as
creating a sweeping mandate to rewrite all provisions of older
solid waste permits. However, the closure and post—closure care
plan submitted to the Agency is a permit application, and the
Agency is free to review that application and impose permit
conditions in the usual manner so long as those conditions relate
only to closure and post—closure care.
The Board’s closure and post—closure care rules were adopted
under the statutory authority of Section 21.1 of the Act relating
to financial assurance as well as Section 22 of the Act, the
general statutory authority to adopt regulations governing Land
Pollution and Refuse Disposal. See 9 Ill. Peg. 6723 (May 10,
1985) & 9 Ill. Peg. 18943 (Dec. 6, 1985). As such, those
regulations impose both substantive and financial requirements on
facilities. All of Sexton’s prior permits were issued before the
effective date of these rules. Sexton’s closure and post—closure
care plan submissions and the Agency’s action on that plan all
occurred after the effective date of the regulations.
On its face, Section 807.503(a), in requiring a closure
plan, characterizes such a plan as “a condition of the site
permit.” Id. (emphasis added). Identical language is found in
Rule 807.523(a) regarding post—closure care plans. Only the
Agency has authorization under the Act to create, modify, or
delete a permit condition. Those documents which are filed with
the Agency seeking to add, modify, or delete a permit condition
are, of necessity, a permit application.
Section 807.503 (d) requires that, “The closure plan shall
be included in the permit application pursuant to Section
807.205.” In addition, Section 807.504 defines the submission of
96—194
—5—
any modification of a closure plan as a “permit application.”
The regulatory language is clear that the initial submission of a
closure plan, or the submission of amendments to that plan,
constitute a permit application.
The permit application which is submitted must demonstrate
that the facility will not violate provisions of the Act or Board
regulations relating to closure or post—closure care. If the
permit application does not demonstrate compliance, the Agency
may deny the permit application or it may impose conditions which
it believes are necessary to ensure compliance. In no event,
however, may the Agency decision or its conditions be premised on
matters other than closure and post—closure care compliance
provisions.
Sexton argues that a permit condition requiring a new permit
application leads to a never ending cycle of permit applications,
having no finality. This argument has greater persuasion where,
as with the NPDES permit system, permits are subject to complete
renewal every five years; here permits are not renewed every few
years. Also, this argument ignores the fact that a permit
condition requiring a new application, for example pertaining to
the gas collection system, does not open review of other aspects
of the previously approved permit.
If the hypothetical gas collection system were deemed
inadequate the Agency could deny the permit application outright;
such a decision would require a new permit application covering
all aspects of closure and post—closure care. In addition,
denial of the application would place the facility in immediate
violation of Section 21.1 of the Act if the facility continued to
operate, since the facility would have no closure plan upon which
to base the cost estimates and required financial assurance. See
Ill. Rev. Stat. ch. 111 1/2, par. 1021.1(a) (1988).
In the alternative, the Agency could approve the permit in
major part, but require a new permit application pertaining only
to the gas collection system. The Board believes this second
approach would reduce rather than increase the chances for a
never ending cycle of permit applications.
Whichever option the Agency chooses to pursue, Sexton is
free to file an appeal of the Agency decision. If the Agency
decision on the hypothetical gas collection system is incorrect,
this Board is free to order the offending condition stricken or
to order the denied permit to issue. Also, contrary to Sexton’s
arguments, the Board does not believe, based on the particular
facts of this case, that the Agency must resort to filing an
enforcement action against a permittee in order to secure an
adequate and protective permit.
96—195
—6—
THE BURDEN OF PROOF IN PERMIT APPEALS
The standard of review in permit appeals is stated as follows:
The sole question before the Board is wheth-
er the applicant proves that the application,
as submitted to the Agency, demonstrated that
no violation of the Environmental Protection
Act would have occurred if the requested per-
mit had been issued.
Joliet Sand & Gravel Co. v. PCB, 163 Ill. App.
3d 830, 833, 516 N.E.2d 955, 958 (3d Dist.
1987); Browning—Ferris Industries of Illinois,
Inc. v. EPA, No. PCB 84—136, May 5, 1988
(citation omitted), aff’d, No. 2—88—0548, slip
op. (2d Dist. Feb. 3, 1989).
It is the permit applicant, and not the Agency, which bears the
burden of providing the technical information necessary to demon-
strate that no violation would occur:
The Board emphasizes that the burden of proof
is on (the applicant
,
not the Agency. The
Agency has no obligation to conduct
monitoring or scientific testing of the
applicant’s facility. The applicant is
entitled to a favorable decision if, and only
if, it has successfully
...
borne its burden
of proof
Browning—Ferris Industries of Illinois, Inc.
v. EPA, No. PCB 84—136, at 8 (emphasis in
original).
Therefore, the primary focus must remain on the adequacy of the
permit application and the information submitted by the applicant
to the Agency.
Sexton contends that it has met its burden of proof in that
Sexton “went forward” and established a prima facie case. Sexton
argues that the burden then shifted to the Agency to prove that
the conditions it imposed were necessary. Sexton concludes that
the Agency has failed to prove the necessity of the challenged
conditions. Sexton Post—Hearing Brief at 1—4.
Whatever the merit of Sexton’s initial proposition, Sexton
fails to direct the Board’s attention to facts in the record that
tend to support its position. Instead, Sexton points to several
conclusory remarks of its witnesses made before the Board. This
leaves the Board without the benefit of facts from which it can
exercise its independent judgment as to the merits of Sexton’s
proposed closure plan.
9 6—196
—7—
In this type of proceeding, the applicant appeals Agency—
imposed conditions. However, it is the permit application that
undergoes the initial Board review. To prevail, the applicant
must prove how the application as submitted was environmentally
sound. Whether the Board affirms or rejects challenged condi-
tions is primarily dependent on the facts that the applicant made
available to the Agency when the Agency made its permit
decision. Reiteration of the desired conclusion offers no
factual support for an independent evaluation. Therefore,
conclusory arguments do not prove that the Agency erred on th~
threshhold issue: did the facts available to the Agency support
a conclusion that no violation of the Act and Board regulations
would have occurred had the permit issued as requested? A permit
applicant cannot prevail by simply limiting its arguments to the
impropriety of the Agency—imposed conditions without showing the
propriety of its own requested conditions. Cf. Browning—Ferris
Industries of Illinois, Inc. v. EPA, No. 2—88—0548, slip op. at
6—7 & 13—14 (2d Dist. Feb. 3, 1989).
THE SUBSTANTIVE CASE: SPECIAL CONDITIONS 4, 6, 17, 19(b), AND 20
Special Condition 4: Gas Control Devices
Special Condition 4 would require Sexton to estimate the
duration of gas generation by the closed landfill and submit a
plan to the Agency outlining how it intends to separately close
its gas control system. Sexton’s proposed closure plan outlined
the number, locations, and type of passive gas flares that it had
installed and that it intended to install at the site. It also
asserted, “Upon closure, the gas may be used for electricity
generation.” Agency Record, Ex. 26, Par. 8G. Sexton’s proposed
plan stated no more.
The thrust of Sexton’s arguments in support of its proposed
plan are directed against the Agency—imposed special condition:
the Agency erroneously assumes that Sexton will construct a
system for gas use; that any such system for use would not be a
waste disposal system; that the condition contradicts the permit
granted passive flares by Special Condition 2; that requiring the
prospective removal of gas flares after gas generation has ceased
would require site activity beyond five years; and that allowing
such a condition would effectively authorize the Agency to
require Sexton to install an elaborate, expensive positive gas
extraction system. Sexton Post—Hearing Brief at 32—35. Sexton
does not indicate where, in the information available to the
Agency, there is any indication of how long the landfill will
continue to generate gas or when and how Sexton will remove the
gas flares. The Agency highlights this lack of information and
indicates that a premature closure could result in air and/or
water pollution. Agency Response at 10—14.
96—19 7
—8—
The Agency points out in its response brief that it nowhere
suggested that any gas control measures in addition to those
proposed by Sexton are necessary or more appropriate. Agency
Response at 14. The Board notes this fact. It also notes that
Sexton’s arguments as to the extreme cost of complying with this
condition are largely misplaced. The Agency simply did not have
enough information from Sexton to determine what gas control
measures are appropriate for this site. In the absence of such a
determination, any cost projection is inappropriate.
There was an absence of information before the Agency on
July 26, 1988, that would demonstrate how and when Sexton would
close its gas control system in a manner which assures no
violation of the Act or Board rules. Therefore, the Board must
conclude that Sexton has failed in its burden of proof of
demonstrating that the plan as submitted was adequate. Agency—
imposed Special Condition 4 simply requires submission of this
essential information. Therefore, the Board finds that this
condition is necessary to accomplish the purposes of the Act.
Special Condition 6: Leachate Management
Special Condition 6 would require Sexton to estimate the
volume and quality of leachate it anticipates the landfill will
generate, how the leachate will be attenuated, how its elevation
will be stabilized, and how Sexton proposes to manage the
leachate. Sexton’s proposed plan indicated that Sexton might one
day remove leachate through its passive gas control flares,
Agency Record, Ex. 26, Par. 8G, and that Sexton would monitor the
site for leachate “weeps,” “seeps,” and “popouts” through the
final cover. Agency Record, Ex. 26, Par. 11, 12, 13 & 15.
Sexton also planned to monitor the groundwater for contamina-
tion. Agency Record, Ex. 26, Par. 14.
The primary thrust of Sexton’s arguments in support of its
proposed plan are directed against the Agency—imposed special
condition: that the Agency imposed this condition based on its
misconceptions regarding the nature of the wastes placed in the
landfill and the existing leachate level, that the Agency failed
to show any inadequacy with the proposed method of leachate
withdrawal, and that the installation of an alternative system
for leachate withdrawal would be costly. Sexton Post—Hearing
Brief at 36—38. Although Sexton’s closure plan outlined a
proposed method of leachate withdrawal, Sexton does not indicate
how, based on the information available to the Agency, the Agency
could have ascertained the existing leachate level, the amount
and quality of the leachate that the landfill would generate, how
Sexton would determine that such withdrawal was necessary, and
the method by which Sexton proposed to manage this leachate. The
Agency highlights these deficiencies, and further attacks the
proposed method of withdrawal. Agency Response at 15—19.
96— 198
—9—
The Board notes that Special Condition 6 nowhere suggests
that any specific leachate withdrawal measures other than those
proposed by Sexton are necessary or more appropriate. It also
notes that Sexton’s arguments as to the extreme cost of complying
with this condition are largely misplaced. The Agency simply did
not have enough information from Sexton to determine what
leachate management measures are appropriate for this site. In
the absence of such a determination, any cost projection is
inappropriate.
There was no information before the Agency on July 26, 1988,
that would indicate the volume and quality of leachate this site
would generate, and which demonstrates that Sexton would manage
that leachate in a manner which assures no violation of the Act
or Board rules would occur. The Board must conclude that Sexton
has failed in its burden of proof of showing its plan as submit-
ted was adequate. The Agency—imposed Special Condition 6 simply
requires submission of this essential information. The Board
therefore concludes this condition is necessary to accomplish the
purposes of the Act.
Special Conditions
ha, 17b,
and 17c: Groundwater Monitoring
Special Condition 17a would require Sexton to monitor the
background groundwater quality at the site for four quarters for
31 physical and chemical parameters and four parameters relating
to the groundwater elevation and well depth. Sexton’s proposed
closure plan does not provide for additional background ground-
water quality or groundwater depth characterization. See Agency
Record, Ex. 25 & Ex. 26, Par 14, Att. A.
Special Condition l7b would require Sexton to install at
least one upgradient and one additional downgradient monitoring
well in the deep aquifer underlying the site. Sexton’s proposed
plan added no new wells to the two presently installed in the
deep aquifer and located at the two far ends of the northern
boundary. See Agency Record, Ex. 25 & Ex. 26, Par. 14.
Special Condition l7c would require Sexton to determine the
gradients and groundwater flow directions through the potential
leachate migration pathways underlying the landfill, and to
identify the water resources potentially affected by any leachate
flows from the fill. Sexton’s proposed plan contains nothing to
this effect, but the Agency record does include some limited and
some generalized information about the locations of the under-
lying aquifers, the direction of groundwater flow, and the loca-
tion of local surface waters. See, e.g., Agency Record, Ex. 1, 8
& 25.
Sexton contends that these special conditions duplicate
previous submissions to the Agency made in 1983, when Sexton
sought approval of its groundwater monitoring regime for the
96—19 9
—10—
site. See Agency Record, Ex. 25. Sexton also argues that the
Agency—required upgradient monitoring well in the deep aquifer is
unnecessary. Sexton Post—Hearing Brief at 39—41. The Agency
counters that upon review of the information it had about
Sexton’s facility, certain inadequacies became apparent. Agency
Response at 20—27.
With regard to the groundwater testing required by Special
Condition l7a, the Board notes that the parties’ relative
postions are not as~disparate as a superficial glance would make
it appear. The required groundwater monitoring involves two
aspects: testing to establish the background groundwater quality
and ongoing testing to monitor that quality. As to the 31
physical and chemical parameters imposed for background testing,
Sexton submitted a 1983 permit application that provided for
semi—annual background testing for 23 of the 31 Agency—imposed
parameters. Agency Record, Ex. 25 & 31.
Sexton has posed no objection to any specific parameter of
the 31 that the Agency has required for background testing.
Sexton’s objection appears limited to the idea that the Agency
will require any additional background testing at all. As to the
eight parameters required for ongoing quarterly testing, Sexton
has posed no objection. Therefore, the conflict is actually
limited to the adequacy of the background groundwater quality
data that Sexton has already obtained and submitted to the
Agency.
Initially, the Board notes that Sexton challenges the
Agency—imposed regime of background groundwater testing, but
Sexton fails to argue that its own monitoring scheme was
adequate. An examination of the record before the Agency
supports a conclusion that Sexton has failed to prove that its
proposed groundwater monitoring scheme effectively characterized
the background quality of the local groundwater.
The record before the Agency indicates that Sexton had
performed one round of background groundwater quality testing in
the Spring of 1983. R. 30; Agency Record, Ex. 25. Further, the
Agency’s evaluation of the information gained from Sexton’s
ongoing quarterly monitoring resulted in the following observa-
tion:
Results of the groundwater data indicate that
substantial fluctuations exist between con—
sequtive sic quarterly samples. The data
was difficult to analyze and the problems may
rest with the sampling and analytical methods.
Agency Record, Ex. 25 (July 21, 1988 internal
Agency memo by A. Tin).
g6—200
—11—
Fluctuations in the ongoing quarterly results raise significant
questions about the reliability of the existing background
groundwater quality data.
The record also indicates that Sexton obtained permits to
receive liquid and liquid—bearing wastes containing heavy metals,
solvents, and reagents. Agency Record, Ex. 1—7, 9—18 & 22—23.
Sexton argues that a permit to accept a waste does not mean that
that waste is resident in the fill. Sexton argues that these
wastes are not present in the fill. However, Sexton presents no
tangible evidence to this effect, and it does not direct the
Board’s attention to any affirmative assertion before the Agency
that it did not accept these permitted wastes at the site. As
testified by the Agency permit reviewer, Mr. Schoenhard, at
hearing under adverse examination by Sexton:
Q. What is it about the parameters
...
con-
tained in an Agency guideline that do not
appear
...
in Sexton’s 1983 permit applica-
tion that caused you to now test for those
parameters?
A. This landfill had accepted a lot of
liquid waste and a lot of metal wastes,
according to the record, and a more complete
list might help identify wheter any of those
constituents of that liquid waste was moving
out of the landfill and into the groundwater.
Q. You don’t know for a fact that the Sexton
people accepted those liquid or metal wastes,
do you?
A. I didn’t see them go into the landfill,
nor do I know anybody that does. I just read
it in the permit application that was
approved.
Q. What you mean to say is that Sexton had
permission to take such wastes should they
ever get the contract to do so, is that what
you mean?
A. Yes.
Q. You don’t know whether they ever got the
contracts to do it or deposited those wastes
in that landfill, do you?
A. No.
P. 32—33.
96—201
—12—
The burden was on Sexton to prove that its closure plan
assured that no violation of the Act would occur by groundwater
migration of waste constituents. In the context of establishing
background contamination levels, this burden would have required
Sexton to demonstrate that the Agency record contained reliable
information on the background concentration of the approximately
20 to 30 chemicals subject to testing.
However, Sexton does not
direct the Board’s attention to any data that would tend to
extablish any
background concentration for any parameter.
Sexton has failed to show any results indicating the back-
ground groundwater quality. Therefore, the Board concludes that
Sexton has failed to prove the sufficiency of its closure plan as
submitted to the Agency. Bolstering this conclusion are the
Agency’s concern over fluctuations in the monitoring data submit-
ted by Sexton and uncertainties as to the volumes of wastes
containing toxic components and liquids, if any, resident in the
fill. Special Condition l7a is affirmed.
With regard to the additional groundwater monitoring wells
required by Special Condition l7b, Sexton challenges the need for
an upgradient well and any additional downgradient wells in the
deep aquifer. Sexton’s Director of Regulatory Affairs testified
that such wells could cost up to $14,000 each. R. 174. The
Board must begin its analysis of the “need” for these wells with
consideration of the merits of Sexton’s proposed plan. The
“need” for any
additional wells will depend on the information
before the Agency when it made its permit decision, as well as on
consideration of the purpose for groundwater monitoring.
The record indicates that any contaminant migration from the
bottom of the fill would likely enter the deep aquifer. It also
indicates that Sexton apparently installed four wells in the deep
aquifer in 1974, but only the two on the northern site boundary
were operable. Agency Record, Ex. 8. However, Sexton has not
submitted information to the Agency that would adequately define
the direction of groundwater flow in the deep aquifer. Sexton’s
plan would provide for monitoring in the deep aquifer only from
the two existing wells. The Agency stated its position with
regard to the deep wells in its post—hearing brief:
The two deep wells monitor a water bearing
zone beneath the landfill. It is the monitor-
ing system in the deeper water bearing zone
that is inadequate. Information shows that in
some places, there may be as little as four
feet of clay containment around the landfill.
Mr. Schoenhard’s permit review showed that
Sexton had permission to accept wastes which
contained constituents that could break down
the clay containment. The Agency’s concern
was that the liquid could migrate through the
96—202
—13—
clay containment and enter the groundwater
around the facility. The monitoring system
for the deeper aquifer is not adequate to
determine if the site has affected the ground-
water below the landfill.
Agency Response at 24.
Some of the mentioned wastes permitted for the site are noted in
ti-e preceding discussion of Special Condition l7a. The Agency
record includes an additional appraisal of the information avail-
able on the Sexton landfill:
The facility should be required to re—evaluate
their groundwater monitoring program since 4
years have passed, the Agency’s groundwater
review process has expanded, and there has
been substantial residential development
around the area. A proposal to update the
system should be required. A copy of the
Groundwater Monitoring Network should be
sent. The following items should be con-
sidered in the review process:
1. The groundwater flow direction has not
been confirmed in the deeper aquifer. There
is no upgradient deep well to perform triangu-
lation data. The existing assumption of a
northward flow is based on regional flow pat-
terns toward the river. The third well will
provide the necessary information to evaluate
whether there may be east or west components.
2. Depending on the determination of the
actual flow direction, at least two more
nested wells should be required at the north
boundary if the proposed groundwater flow
direction is confirmed. At present, there are
only two nested wells to monitor approximately
1500 ft. The facility may also need to mon-
itor on the east and west boundary depending
on groundwater flow directions.
3. The facility should put in additional
borings and/or piezometers to update the 1971
data and to further characterize the presence
of sand lenses. The borings should be contin-
uously sampled, and the boring logs and well
completion reports be correctly labeled in
accordance with current Agency guidelines.
96—203
—14—
6. Is it appropriate to ask for a map of the
locations
of the private wells which
are
around the
landfill?
Agency Record, Ex. 25 (July 21, 1988 internal
Agency memo by A. Tin).
The Board concludes that Sexton has failed in its burden as
it relates to groundwater monitoring of the deep aquifer. Numer-
ous informational deficiencies reside in the Agency record.
Sexton has neither dispelled these deficiencies nor otherwise
proven its plan adequate to assure no violation of the Act before
the Board. Special Condition 17b is affirmed.
As an aside, the Board notes Section 807.624 of its solid
waste rules. This rule sets forth an interim formula for closure
and post—closure care cost estimates. It provides that the
minimum number of groundwater monitoring wells that a facililty
operator may use as a basis for cost estimation is three. 35
Ill. Adm. Code 807.624(d)(7) (1986). Therefore, the Agency
position that two wells are inadequate to characterize ground-
water quality in the deep aquifer is not inconsistent with Board
regulations. As stated by the Board in adopting Section 807.624:
A minimal program involves one well upgradient
to establish the background water quality, and
two wells downgradient to detect leaks. The
Board has therefore specified three as a
minimal number of wells to be used in the
formula.
In re: Financial Assurance for Closure and
Post—Closure Care of Waste Disposal Sites,
R84—22C, Final Order at 32 (Nov. 21, 1985).
This bolsters the Agency conclusion that Sexton’s plan for only
two downstream wells in the deep aquifer is inadequate.
With regard to the additional groundwater information
required by Special Condition l7c, Sexton challenges the need for
additional information relating the directions of groundwater
flows, leachate migration pathways, and potentially impacted
water resources, as required by this condition. However, Sexton
fails to highlight the adequacy of the groundwater information in
the record. The Agency takes the position that the information
in the record is insufficient and that the required information
is necessary for proper site appraisal. The preceding discussion
of Special Condition 17b cites the Agency’s appraisal of the
existing information. In light of the information available to
the Agency and the need for the groundwater information required,
the Board concludes that Sexton has failed to prove the adequacy
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of its closure plan with regard to the information required by
Special Condition l7c.
Special Condition l7c is affirmed.
There was a lack of information before the Agency on July
26, 1988 that would have aided the Agency in adequately assessing
the local groundwater flow characteristics and background ground-
water quality. Further, Sexton’s proposed closure plan would not
have permitted an accurate determination of groundwater contamin-
ation from the landfill. Therefore, the Board must conclude that
Sexton has failed in its burden of proof of demonstrating that
the plan as submitted was adequate. The totality of Agency—
imposed Special Condition 17 simply requires submission of this
essential information. Therefore, the Board finds that this
condition is necessary to accomplish the purposes of the Act.
Having concluded its consideration of Special Condition 17,
the Board finds it useful to note another aspect of the conflict
between the parties. Special Condition l7b includes the
following language: “Propose a revised ground water monitoring
program, based on draft Groundwater Monitoring Network design
guidelines.” Agency Record, Ex. 31, par. l7b. Sexton contends
that the Agency thereby impermissibly attempted to impose its
draft guidelines as rules that it had not subjected to notice and
comment as required by law. Sexton Post—Hearing Brief at 28—31;
see Ill. Rev. Stat. ch. 127, par. 1001—1021 (1988) (Administra-
tive Procedure Act, or “APA”). The Agency concedes that it
cannot impose such draft documents as rules, and responds that it
does not now seek to do so. Agency Response at 23. The Board
finds no conflict. The Agency cannot impose draft guidelines as
rules. See APA at par. 1005(b). However, the Agency can direct
a permitee’s attention to any readily available source for
guidance and further elaboration. In so noting, the Board does
not affirm or condone the imposition of any non—statutory, non—
regulatory materials as permit requirements.
Special Condition 19(b): The “Triggering Number”
In its closing brief, Sexton asserts that the Agency’s
choice of a “twice over background” test for “triggering”
further evaluation of apparent groundwater data variations is
arbitrary. Sexton Post—Hearing Brief at 42. Petitioner asserts
that Sexton’s own proposal, that further analysis shall be
triggered by “distinctive differences,” would allow Sexton to
consider all factors, including the potential impact of seasonal
fluctuations. The Agency asserts that the term “distinctive
differences,” as used by Sexton, is undefined and would invite
disagreement over the subjective meaning of what constitutes a
“distinctive difference.” Agency Response at 27—28. Mr.
Schoenhard, the Agency’s permit reviewer, testified that the “two
times” number was imposed based upon his case—specific attempt to
provide a
definite number in an admittedly “gray area.” R. 67—
68. He suggested that the Agency’s “trigger” standard is more
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fair, and that it is a “larger number than you might get from
significant difference when you
relate this significant differ-
ence to statistical value.” B. 69. In any event, as the Agency
noted, Sexton did not demonstrate that no violation of the Act or
Board regulations would have occurred using its more subjective
triggering mechanism. The Board also notes that Sexton did not
demonstrate that it was prejudiced by the Agency’s choice and did
not challenge Mr. Schoenhard’s assertion that the Agency’s trig-
gering mechanism might be more fair than its own.
It is clear to this Board that the Agency’s “trigger”
standard is, as Sexton contends, “arbitrary,” in the sense that
it reflects an individual’s best judgment rather than an adopted
regulatory standard. It is within this Board’s technical
knowledge that, for some constituents, a “twice over background”
level could be unacceptably lax in some cases and unacceptably
stringent in others. It is equally clear that the Sexton
proposal, based on “distinctive differences,” is at best vague
and ambiguous. The Board would not relish the obligation to
provide a precise interpretation of that term in the context of
an enforcement proceeding.
Finally, the Board notes that should the “trigger” level be
exceeded Sexton is not required to dig up the waste or redesign
the landfill. Nor is Sexton insulated from enforcement if the
“trigger” is not exceeded. The only obligation if the “trigger”
is exceeded is that more monitoring data needs to be acquired.
In this circumstance, the Board must hold that Sexton has failed
to demonstrate that the requested condition, “distinctive
differences,” would not cause a violation of the Act or Board
regulations. The Agency has provided a reasonable explanation
for the “twice over background” level and the Board affirms that
value.
Special Condition 20: The Use of Sludge for Soil Conditioning
Sexton argues against the imposition of Special Condition
20, which provides as follows:
If municipal wastewater treatment plant sludge
is to be used as a soil conditioner, the
following will apply:
a. A waste stream permit will be obtained by
the site to dispose of sludge.
b. Sludge will be mixed with soil at a ratio
of one part soil to one part sludge to
produce a “modified soil” for soil dress-
ing.
96— 206
—17—
c. The total thickness of “modified soil”
shall be six
(6) inches on the top
plateau and three (3) inches on side
slopes, unless the applicant can
demonstrate material stability at greater
thickness.
Agency Record, Ex. 31, par. 20.
Sexton asserts that the generation, transportation, and
application of wastewater treatment plant sludge is administered
solely by the Agency’s Division of Water Pollution Control under
35 Ill. Adm. Code Part 309 rather than by the Division of Land
Pollution Control under Part 807. In support of its contention,
Sexton points to the exemption of generators and haulers of such
sludges from the special waste hauling requirements. See 35 Ill.
Adm. Code 809.211(c). Sexton further argues that in the context
of use as a soil conditioner, such sludges are essentially the
same as compost or fertilizers, which are products (not wastes)
and therefore not subject to Part 807 regulations. Sexton Post—
Hearing Brief at 44—45.
The Agency responds that such sludges are specifically
included in the definition of “waste” at 35 Ill. Adm. Code
807.104. Agency Response at 30. It further notes that the
subject water regulations, 35 Ill. Adm. Code 309.208(a)(3),
require a construction and operating permit from Division of
Water Pollution Control unless the site is regulated under Parts
700 et seq. of the Board’s regulations (i.e., the land pollution
regulations administered by the Division of Land Pollution
Control).
Sexton fundamentally misunderstands the relationship between
Parts 309 and 807 in this regard. The Agency is correct in
asserting that the land application of wastewater treatment plant
sludges at landfills is properly within the purview of the Part
807 rules and administered by the Division of Land Pollution
Control. In all other settings (i.e., outside a landfill or
other waste facility regulated under land pollution regulations),
the Part 309 requirements apply. The regulations themselves are
unambiguous on this point. There is no overlapping or
duplication of permit requirements as Sexton suggests; land
application of sludges regulated under Part 309 is not subject to
Part 807, nor is such land application of sludges at a landfill
subject to Part 309.
It is the Board’s view, consistent with the foregoing
analysis, that Special Condition 20 is an appropriate restatement
of the regulatory requirements and the condition is affirmed. No
issue is raised about the actual sludge usage conditions.
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SUMMARY AND CONCLUSION
The Board believes that each of the special conditions
should be affirmed on its own
merits. However, the Board must
note that a certain relationship exists among all of the condi-
tions except 4 and 20. They all relate to the possibility of
groundwater contamination of the deep aquifer. When viewed in
this light, the substantial difference between the totality of
the Agency’s position and the totality of Sexton’s position
becomes clear.
The Agency’s concerns relate to protection of the deep
aquifer. The Agency believes that as little as four feet of clay
in the bottom liner protects the deep aquifer from contamina-
tion. The fill contents are largely unknown, and they may
include liquid and toxic chemical—laden wastes. The amount and
character of the leachate in the fill is unknown, as are the
rates of leachate formation and loss. The Agency claims that
there is inadequate information regarding the directions of
contaminant migration, inadequate characterization of the
background water quality, and an inadequate number of monitoring
wells to detect any contamination that might occur. Residential
development has occurred in the immediate area, and the record
does not indicate any active and potential uses for the local
groundwater. In short, the Agency finds too many unanswered
questions about this landfill and protection of the deep aquifer.
Sexton asserts, in largely conclusory terms, that the plan
it submitted was adequate. However, Sexton’s assertions are
largely devoid of specific references to factual material from
the record that would demonstrate the adequacy of such plan.
The Board notes that the totality of the missing information
leads to a conclusion that the deep aquifer will not be protected
by Sexton’s closure and post—closure care plan..
Finally, the Board construes all unchallenged conditions as
agreement by Sexton that the conditions are appropriately
incorporated in its closure/post—closure plan.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
IT IS SO ORDERED.
Board Members Joan Anderson and Michael L. Nardulli
dissented.
96—208
—19—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
at the above Opinion was adopted on
the
~J-~
day of ________________________,
1989, by a vote
of
~
Illino
ution Control
Board
96—209
