ILLINOIS POLLUTION CONTROL BOARD

May

5,

1988

BROWNING

FERRIS INDUSTRIES

OF ILLINOIS,

INC.,

Petitioner,

v.

)

PCB 84—136

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

FRED

C.

PRILLAMAN, ATTORNEY-AT—LAW, APPEARED

ON

BEHALF OF

BROWNING FERRIS

INDUSTRIES OF ILLINOIS,

INC.;

AND

E.

WILLIA!4 HUTTON, ATTORNEY-AT-LAW, APPEARED

ON

BEHALF OF

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD

(by

B.

Forcade):

This matter comes before the Board on the August

30,

1984

petition of Browning Ferris Industries

of Illinois,

Inc.

(“EFI”)

appealin~ the July 27,

1984 permit decision by the Environmental

Protection

Agency

(“Agency”).

The

facility involved

is

the

Davis

Junction

Landfill,

located

south

of

Rockford

in

Ogle

County.

The

Board

held

a

public

hearina

on

this

matter

in

Ogle

County

on

February

3,

1988.

No member

of

the public was present.

BFI

submitted

its post-hearing

brief

on March 10,

1988.

The Agency

submitted

its brief on April

1,

1988 and an “Attachment

A”

on

April

4,

1988.

BFI submitted

a reply brief on April

8,

1988.

BFI challenges

five permit conditions

imposed by the Agency ~ihen

i~issued

its July

27,

1984 Closure/Post—Closure

Care Permit

to

BFI

for the Davis Junction Landfill.

Factual Summary

E3FI

submitted its application for development of

a solid

waste disposal site

in Ogle County

to the Agency on November

20,

1974

(Ex.

22

&

Ex.

30),

and the Agency granted

it development

permit number 1975—11—DE on February 27,

1975

(Ex.

30).

BFI

submitted

an application

for

an amended development permit and an

operating permit on October

15,

1976,

together with

a minor

modification request

(Ex.

24)

to reflect

its intent

to phase site

development and modify leachate management

(Ex.

25).

BFI

submitted entirely new site plans to reflect the proposed changes

(Ex.

26,

27,

28

&

29).

The estimated refuse space was 2,868,000

cubic

yards

of compacted waste,

and the site was

to have an

overall

life of

23 years

(Ex.

26).

The Agency granted

89--~3

---

—2—

supplemental

site development permit 1975—626 on October

28,

1976

as

a result

of the BFI application

(Ex.

23).

The Agency

subsequently

issued operating permit

1975—11—OP

for this solid

waste disposal facility on December

16,

1976.

BFI commenced operations at Davis Junction and received

1,900,000 cubic yards of uncompacted wastes into Phase

1

from

December,

1976 until January,

1983.

The incoming wastes included

87

common municipal wastes,

11

special

(non—hazardous) wastes,

and

2

Part 721

(40 CFR

261)

hazardous wastes

(Ex.

6;

Ex.

12,

p.

3).

The record

indicates that between late 1978 and early 1982,

BFI obtained several permits

for the disposal

of liquid solvent

wastes

of various

types,

compositions,

and quantities up to

1,500,000 gallons.

Many are not described

fully,

but the permits

included methylene chloride,

l,l,l—trichloroethane,

and

trichioroethylene

(Ex.

18).

The

record does not indicate

the

identities and volumes

of hazardous wastes received

into Phase

1

prior

to

1978.

BFI

kept detailed hazardous wastes records only

from November

19,

1980 through January

25,

1983

(Ex.

12,

p.

14).

As

a

result of BFI’s

receipt of wastes containing the three

chlorinated organic solvents,

the Agency required BFI

to begin

analyzing

its groundwater samples

for total organic carbon

(TOC),

total organic halide

(Tax),

methylene chloride,

1,1,1—

trichioroethane,

and trichloroethylene by

a June

18,

1982 letter

(Ex.

19).

The subsequent permit

issued December

20,

1983,

however, did not include the three specific chlorinated solvent

parameters

(Ex.

12, Att.

9).

On September

16,

1982,

BFI

requested the Agency to amend

its

operating permit

to allow leachate removal from Phase

1

at the

rate of 5,000 gallons per week for disposal on the dry active

fill at

the site.

The leachate was to remain at

the

site.

Removal was

to occur whenever the leachate level exceeded

elevation

725.5

feet,

so the maximum leachate level would remain

at 726 feet

(14 foot depth)

(Ex.

21).

The Agency issued

supplemental permit 1982—l24—SUPP on October

28,

1982

for this

activity, with

the proviso that

no leachate or leachate—

contaminated water

be discharged

to any groundwater, surface

water,

or sewer

without

a permit

(Ex.

20).

The application and

permit included

no reference

tp leachate characterization or

composition,

or

to groundwater monitoring.

The U.S. Environmental Protection Agency requested on August

8,

1983

that BFI submit its Part B application by January 31,

1984

(See Ex.

16; See also

35

Ill. Mm.

Code 703.150(b)

(1984)).

The record

is silent

as

to when SF1

filed

its Part A

application and obtained facility identification No.

ILD

980700751

for the Davis Junction Phase

1.

BFI

instead chose

to

cease accepting hazardous wastes and close Phase

1 of its

facility, which was near capacity anyway

(See

Ex.

16; See also

35

89—04

---

—3—

Ill.

Adm.

Code 703.157(b)

(1984)).

BFI submitted

a partial

Closure/Post—Closure Plan

to the Agency on January

30,

1984

(Ex.

16; See also

35

Ill. Mm.

Code 725.210

—

725.220 (1984);

Ex.

32).

The Agency responded on March 16,

1984 by notifying

BFI

of

numerous deficiencies

in

its plan

(Ex.

11).

SF1 submitted

the

entirety of

its Closure/Post—Closure Plan to the Agency on April

13,

1984

(Ex.

12).

Andrews Environmental Engineering,

Inc.

prepared the plan.

The Agency again responded on April

27,

1984

by notifying BFI

of its rejection due

to numerous lingering

deficiencies

(Ex.

9).

BFI submitted

a partial response on June

4,

1984

(Ex.

6)

and

a final response on July

25,

1984

(Ex.

2).

The Agency finally modified the BFI Davis Junction Phase

1

Closure/post—Closure Plan on July

27,

1984

(Ex.

1;

See

35 Ill.

Adm. Code 725.212(d)

& 725.218(d)

(1984)).

The Agency received

public inquiry about the BFI plan from one member of

the general

public (See Ex.

3,

7

&

13).

The Agency held no public hearing

(Petition,

par.

13).

BFI now appeals

the Agency’s modification

of its

Closure/Post—Closure Plan on August 30,

1984.

The Agency made

numerous modifications.

SF1 appealed only the five summarized

below

(Ex.

1;

Petition Ex.

“A”):

Par.

3:

BFI was

to characterize

its leachate

by

performing

analyses

for

the

375

hazardous

constituents

listed

in

40

CFP.

261 Appendix

VIII

and

submit

a

plan

for leachate disposal;

Par.

4:

BFI

was

to

decrease

the

maximum

depth

of

leachate maintained

in

the

hazardous

area

from

14

feet

to less

than one foot;

Par.5(j): SF1

was

to

monitor

the groundwater

quality

quarterly

for

Methylene

Chloride,

l,l,l—Trichloroethane

and

Trichloroethylene;

Par.5(1): BFI

was

to

perform

statistical

analyses

on

the

monitoring

data

using

the

.1

level

of

Cochran’s

Approximation

of

Behrens—Fisher

Student’s T—Test;

and

Proviso:

The

Agency

reserved

the

right

to

amend BFI’s Closure and Post—Closure

Plan.

Each

of these

issues

is discussed below.

89—05

---

—4—

Discussion

The Board must confront some preliminary issues

before

it

considers the substantive issues involved in

the Agency

modifications

to the Closure/Post—Closure Plan which

BFI now

challenges.

A discussion

of each

of

the five substantive points

will follow these preliminary discussions.

The first preliminary issue regards

the regulatory status

of

this permit appeal.

The Resource Conservation and Recovery Act

(hereinafter

“RCRA”)

authorized USEPA

to

adopt regulations

governing various aspects of hazardous waste management.

42

U.S.C.

Sec.

6901 et

seq.

(1986).

The Illinois Environmental

Protection Act (hereinafter “the Act”)

includes

a provision

allowing

the Board

to adopt regulations

identical

in substance

to

the federal regulations.

Ill.

Rev.

Stat.

ch.

111

1/2,

Sec.

1022.4 (1988).

A regulation adopted

by USEPA or this Board

pursuant

to RCRA authority

is

a RCRA regulation,

a permit issued

by USEPA

or the Agency pursuant

to RCRA authority

is

a RCRA

permit.

See 35

Ill.

Adm.

Code 700.255

&

700.260

(1984).

Although the disposition of this proceeding centrally

involves

the Board’s RCRA regulations,

it

is not

a “RCRA appeal”

in the

strict,

technical sense.

RCRA permit appeals invoke certain

unique regulatory procedures not involved in this appeal.

See

35

Ill. Mm.

Code 705

(1984).

The standard Board procedures

for

Agency permit denials apply here.

See

35

Ill. Mm.

Code 105

(1984).

The RCRA regulations provide

a two—step application

procedure.

Owners and operators

of hazardous waste management

facilities existing on November 19,

1980 were given an

opportunity

to submit

a Part A application containing certain

facility information.

35

Ill. Mm.

Code 703.150(a),

703.181

&

725.101(b)

(1984).

These facilities were deemed

to have achieved

“interim status” and were

required

to comply with the “interim

status standards”

of Part 725

of the Board’s regulations.

35

Ill.

Adm.

Code 703.153

&

703.156

(1984).

This

is the current

regulatory status of the BFI facility involved in this

proceeding.

The owner

or operator of

the interim status facility

was

to submit

a Part B application containing more detailed

information within

a certain time

of an Agency notice that

it was

due,

thus terminating

its interim status upon final disposition

of

its application.

35

Ill. Mm.

Code 703.150(b),

703.157

&

703.182

(1984).

A more comprehensive body of hazardous waste

management regulations would

then apply

to the facility.

35

Ill.

Mm.

Code 724.101

& 724.103

(1984).

Part 725 interim status standards are generally implemented

directly without

a permit application or review.

These standards

include several “mini—procedures”

for Agency review

of

a facility

without

a complete RCRA permit application.

This closure plan

involves one

of these mini—procedures.

The mini—procedures

are

89—06

---

—5—

based on similar procedures

in

40 CFR

265.

However,

the Board

modified the parallel federal procedures

to provide

for appeal

of

Agency decisions

to the Board.

35

Ill.

Adm.

Code 725.218(g)

(1984)

Parts

702,

703,

and 705 govern Part

B RCRA permit

issuance.

These procedures

are generally inapplicable

to

proceedings concerning

interim status.

35

Ill. Mm.

Code 702.107

(1984).

As stated by the Board

in

the past:

Although

the Board intends the Agency’s action

with

respect

to

interim

status

to

be

in

the

nature of permit actions,

and hence appealable

to

the Board,

the detailed procedures

of Part

705 are not applicable.

In

re

Phase

II

RCRA

Rules,

53

PCB

131,

150

(July

26,

1983);

See Commonwealth

Edison

Co.

v.

IPCB,

127

Ill.App.3d

446,

449—450;

468

N.E.2d

1339,

1342—43

(3d Dist.

1984).

Therefore,

Part 725 RCRA interim status closure/post—closure

plans

are not RCRA permits,

and appeals

of Agency decisions

relating

to these plans are not RCRA permit appeals.

While

the

SF1 Closure/Post—Closure permit did legitimately contain

conditions based on RCRA regulations adopted

by the Board,

the

permit itself was not issued

pursuant to RCRA authority and

is

therefore not

a RCRA permit.

The second preliminary issue involves the breadth

of Agency

discretion with regard to

its disposition of the BFI

Closure/Post—Closure Plan

in light

of prior Agency actions.

BFI

contends that by issuing the 1975 permit,

the 1976 permits, and

the 1982 supplemental operating permit,

the Agency somehow cannot

now alter

those earlier determinations and require BFI

to accept

more stringent permit conditions.

This contention

is without

merit.

Essentially,

this argument

is

an estoppel argument.

When

a

state agency acts

in a governmental,

as opposed

to

a proprietary,

capacity,

public policy militates against circumscribing

the

agency’s discretion by an estoppel.

Estoppel could

impair the

proper function of government and will only arise under

extraordinary or

compelling circumstances.

Illinois

Environmental Protection Agency

v. Modine Manufacturing Co.,

PCB

86—27, Slip Op.

at

4—5

(Feb.

4,

1988).

In this case,

the Agency

acted

in a governmental capacity,

and no extraordinary or

compelling circumstances appear

in the record.

As stated by the

Board:

Such application of the doctrine

of

estoppel

would

impair

the

functioning

of

the

State

in

89—07

---

—6—

its

role

of

protecting

valuable

interests

in

the

environment.

“Tb

allow

estoppel

here

would

be

to permit

the people

of

Illinois

to

be

denied

their

constitutional

right

to

a

healthful environment.”

Modine Manufacturing,

PCB 86—27

at

5

(Feb.

4,

1988)

(quoting

Tn—County

Landfill

v.

Pollution

Control

Board,

41

Ill.App.3d

249,

255,

353 N.E.2d 316

(2d Dist.

1976)).

Second, BFI’s argument ignores one fact:

the Agency’s 1975,

1976,

and

1982 permit decisions were made under

a regulatory

control program,

and with

a scientific understanding,

that would

change over time.

A decision that was correct under

general

scientific knowledge and regulatory control programs that existed

in 1976

,

may not

be correct under scientific kno’~1edgeand

regulatory control programs that existed

in 1984.

The Agency’s permit decisions

of

1975,

1976,

and 1982 ~ere

premised exclusively on

the Board’s solid waste regulationsL

Those regulations were originally adopted

by the Board

in 1973

(R72—5,

adopted July

19,

1973),

and made no distinction between

landfills acceptj~ngmunicipal refuse and those accepting

hazardous waste.~

All landfills were simply called “sanitary

landfills.”

Those regulations

remained effectively unchanged

through the 1984 time frame involved in

this proceeding.

By 1984,

the legal principles upon which hazardous waste

decisions

could

be made had changed dramatically.

The statutory

and regulatory control program for

the management

of hazardous

waste under RCRA reflected

a consensus that this particular

type

of waste posed special problems and deserved special and more

rigorous control standards

(See Ill.Rev.Stat.

ch.

111—1/2,

Section l020(a)(4)

(1984)).

BFI’s first permit which

contained

conditions implementing

the RCRA hazardous waste regulatory

scheme

is the permit now at issue.

‘See

the discussion of

Second Supplemental

issue beginning on

page

25

of this Opinion and Order.

2Pollution Control Board

Rules and Regulations,

Chapter

7:

Solid

Waste

(subsequently revised and codified at

35 Ill. Mm.

Code 807

(1984)); see 35

Ill. Mm.

Code 700.106

(1984).

~These

regulations,

however, did broadly define “hazardous

waste,” but only required that

a landfill must obtain

a permit

to

receive

it.

35 Ill.

Adm. Code 807.104

& 807.310

(1984).

89—08

---

—7—

BFI’s argument presumes

that an Agency decision finding

a

facility is properly operated as

a “sanitary landfill” somehow

is

controlling

on whether the facility

is

a properly closed

hazardous waste facility.

The Board

is unable

to accept this

argument either

in logic or

as

law.

The issue before the Board

is not whether prior Agency decisions are binding on the Board

today.

Rather,

the issue now

is whether

the permit application

submitted by BFI,

and any other information available at the time

of the permit decision, demonstrates compliance with the relevant

statutory and regulatory requirements governing closure

of

a

hazardous waste facility.

In summary, SF1 arguments

that the 1975,

1976,

and 1982

permitting activities

of the Agency somehow circumscribed the

Agency’s discretion

in reviewing

the Davis Junction Closure/Post—

Closure Plan

in 1984 are unavailing.

As discussed,

Illinois law

would not support any theory

of estoppel against

the Agency.

The

fact that

the Agency reviewed the plan under

a new and distinct

body of

regulations militates

in favor of

increased Agency

discretion.

Finally, increased knowledge and articulated

regulatory concern

tends

to favor

not limiting the Agency’s range

of regulatory

choices

in 1984 as

to what may have been reasonable

in 1976 or

1982.

A third preliminary matter which the Board must determine

is

that of the standard

of review.

In its post—hearing brief, BFI

correctly reiterates the standard of

review in permit appeal

proceedings:

The

sole

question

before

the

Board

is

whether

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

permit

had

been

issued.

Petitioner’s Brief

at

18

(quoting Joliet

Sand

& Gravel

Co.

v.

Pollution Control

Board,

163

Ill.App.3d

830,

833,

516 N.E.2d

955,

958

(3d

Dist.

1987)

(citation omitted).

SF1 then properly proceeds

to assert that BFI bears

the burden

to

prove

the Agency—imposed permit conditions unnecessary, but that

the Agency

is not required

to justify

its actions with regard

to

the application.

Petitioner’s Brief at

19 (citing Environmental

Protection Agency v.

Pollution Control Board,

118 Ill.App.3d

772,

780, 455 N.E.2d 188,

194

(1st Dist.

l9~3)).

The Board would agree with BFI’s assessment

of the current

law with regard

to the legal

standard and burden of proof

in this

proceeding.

After

its appraisal of

the current state of

the law,

89—09

---

—8—

however, BFI abandons that standard and attempts

to place

the

burden on the Agency.

SF1 begins nine assertions

in

its brief

with,

“The Agency has failed

to demonstrate

...

that the

condition

is

necessary,”

or similar words.

Petitioner’s Brief

at

26—28.

By the submission of

its Reply Brief,

SF1 completely

abandons the standard of review previously articulated.

For

example,

BFr

asserts:

The burden was on

the Agency,

and

it failed

to

meet

its

burden

in

that

it

failed

to

demonstrate

the

environmental

necessity

of

a

one—foot

leachate)

head

as opposed

to 14 feet

or

some

intermediate

point

between

one

foot

and fourteen

feet.

Indeed,

the Agency did no

groundwater

monitoring

or

scientific

testing

to

determine

whether

the

14—foot

head

was

excessive.

(Reply Brief,

p.

14).

The Board emphasizes

that the burden of proof

is on BFI,

not the

Agency.

The Agency has no obligation

to conduct groundwater

monitoring

or scientific testing

at BFI’s facility.

SF1

is

entitled

to

a favorable decision

if,

and only

if,

it has

successfully proven

that the record before the Agency indicated

that BFI’s Closure/Post—Closure Plan,

as originally submitted and

supplemented prior

to July 27,

1984, was sufficient

to establish

that the Davis Junction landfill would not cause

a violation of

the Act or Board regulations governing hazardous waste disposal

facilities.

Initially, SF1 correctly identified

the standard of

review

and burden

of proof.

Therefore,

the Board expected much of BFI’s

presentation

at hearing, and that

its briefs would focus on the

facts

in the record

to logically demonstrate

that its original

plan would not violate

the Act and applicable Board

regulations.

Unfortunately,

SF1 spent most

of its efforts,

at

hearing and

in briefs,

trying

to “put the Agency on trial.”

That

is not what case

is about.

This Board must focus,

and the Board

will focus,

on whether

the

facts

in the record demonstrate future

compliance.

BFI’s unwillingness

to

focus on

that central

issue

is noted,

but not controlling.

The Board further observes

a

fundamental problem with BFI’s

Closure/Post—Closure

Plan as submitted

to the Agency in April,

1984.

The plan comprised

21 pages containing numerous references

to various attachments for plan details.

(Ex.

12).

Many of the

attachments are apparently pre—existing documents.

For example,

Attachment

2:

Site Design Criteria

is actually a copy of the

October,

1976 application for

a supplemental

permit.

(Compare

Ex.

12 Att.

2 with Ex.

26); Attachment

3:

Soil Data

is actually

a May,

1973 soiFTeport

(Ex.

12 Att.

3); and Attachment

8:

89—10

---

—9—

Leachate Collection System Data

is merely copies of

a September,

1982 letter from BFI and an October,

1982 Agency letter

(2 pages

total),

regarding

a supplemental permit to operate

a leachate

collection system.

(Ex.

12 Att.

8).

While such use

of pre-

existing documents itself presents no problem, how

it was done

here does.

The BFI plan presented difficulty

in locating much

of

the pertinent information necessary to determine

the nature of

various aspects

of the facility.

Further, where the plan speaks

in multiple places on the same

issues

it

is occasionally

internally inconsistent.

This made evaluation more difficult.

Some

of these problems are noted

in the discussion of

the

substantive issues which follows.

SUBSTANTIVE ISSUES

I.

Leachate Head

The first substantive

issue before the Board

is Modification

Paragraph

4,

which would require SF1

to maintain a maximum

leachate depth of one foot

(elevation

713 feet),

rather than the

14

foot (elevation

726 feet)

originally proposed by SF1

in its

plan.

The Board believes that two provisions of the Act and two

regulations should be applied

to the facts

in determining whether

BFI has met its burden

of proving

that its proposed

14

foot

maximum leachate head would

not result

in

a violation.

The

provisions

of the Act which seem particularly

relevant are

Sections 12(a)

and 3.55.

They provide:

No person shall:

a.

Cause

or

threaten

to

cause

or

allow

the

discharge

of

any

contaminants

into

the

environment

...

so as

to cause or tend

to

cause

water

pollution

...

or

so

as

to

violate

regulations

or

standards

adopted

by the Pollution Control Board

11l.Rev.,Stat.

ch.

111—1/2,

Section

1012

(1988)

“WATER

POLLUTION”

is

such

alteration

of

the

physical,

thermal,

chemical,

biological

or

radioactive

properties

of

any

waters

of

the

State,

or

such

discharge

of

any

contaminant

into

any waters

of

the

State,

as

will

or

is

likely

to

create

a

nuisance

or

render

such

waters harmful

or

detrimental

or

injurious

to

public

health,

safety

or

welfare,

or

to

domestic,

commercial,

industrial,

agricul-

tural, recreational,

or other legitimate uses,

or

to livestock,

wild animals,

birds,

fish,

or

other

aquatic

life.

89—i 1

---

—10—

Ill.Rev.Stat.

ch.

111—1/2,

Section

1003.55

(1988)

The Act would therefore require that the record on review at

least demonstrate that no contaminant will

leave

the facility as

a part

of the leachate and enter

the underground waters of the

state

in

a quantity or concentration that would cause

a violation

of the Board’s water quality standards.

Those standards are

found at 35

Ill. Mm.

Code Part

302;

see

35 Ill.

Adm. Code

807.313

(1984).

The regulatory standards for closure performance and closure

and post—closure care of

an interim status hazardous waste

facility are also directly applicable

to the decision before the

Board:

The

owner

or

operator must close

his facility

in

a manner

that:

a)

Minimizes

the

need

for

further

maintenance;

and

b)

Controls,

minimizes or eliminates,

to the

extent

necessary

to protect human

health

and the environment,

post—closure

escape

of

hazardous

waste,

hazardous

waste

constituents,

leachate,

contaminated

rainfall

or

waste

decomposition products

to the ground

or surface waters

35

Ill. Mm.

Code

725.211

(1984);

see

35

111.

Mm.

Code

807.313

(1984)

(codified version

of

pre—existing

Chapter

7:

Solid

Waste,

Rule

313).

To this end,

several specific facilities management

requirements

apply to the closure and post—closure care of

a

hazardous waste landfill.

Pertinent

to leachate management,

the

Board’s rules provide:

b)

In

the

closure

and

post—closure

plans,

the

owner

or

operator

must

address

the

following

objectives

and

indicate

how

they will be achieved:

1)

Control

of

pollutant

migration

from

the

facility

via

groundwater,

surface water

and air

...;

C)

The

owner

or

operator

must

consider

at

least

the following factors

in addressing

89—12

---

—11—

the

closure

and

post—closure

care

objective

of

paragraph

(b)

of

this

Section:

1)

Type

and

amount

of

hazardous

waste

and hazardous waste

constituents

in

the

landfill;

2)

The mobility

and

the

expected

rate

of migration

of the hazardous waste

and

hazardous

waste

constituents;

and

3)

Site

location,

topography

and

surrounding

land use with respect

to

the

potential

effects

of

pollutant

migration

(e.g.,

proximity

to

groundwater,

surface

water

and

drinking water sources);

and

d)

During

the post—closure care period the

owner

or

operator

of

a

hazardous

waste

landfill must:

2)

Maintain

and

monitor

the

leachate

collection,

removal

and

treatment

system

...

to

prevent

excess

accumulation

of

leachate

in

the

system

35 Ill. Mm.

Code 725.410

(1984).

Taken together, these various requirements establish a narrative

standard for the review of the facts

in this case.

The facility

operator must prevent

the accumulation of excess leachate which

would foster the migration

of hazardous waste constituents,

or

other pollutant migration,

into groundwater

in

a quantity or

concentration that would cause water pollution.

In evaluating

whether water pollution might occur,

the Board’s water quality

standards would provide at least minimal guidance.

The

regulations also provide

that the factors

in Section 725.410

(c)

must

be addressed

in demonstrating whether

the narrative standard

will

be met.

In effect then,

the Board must review BFI’s application

to

determine

if

it evaluates

the necessary factors and contains

sufficient factual

information to at least demonstrate that

a

14

foot leachate head will

not cause migration

of contaminants

into

groundwaters

in

a quantity

or concentration that would violate

the Board’s water quality standards.

This

is the standard which

must be applied

to the facts of

this case.

89—13

---

—12—

The Davis Junction Landfill

is located on ground sloping

towards

the north—northwest.

The direction of apparent

groundwater

flow is

in the same

direction.

The excavation was

in

clayey bess and colluvial deposits;

through water—bearing

Farmdale sands; and into

a dense,

low—permeability

till.

About

14 feet beneath

the landfill invert

is

the “uppermost aquifer”:

A 10 foot

thick Kansan sand.

(Ex.

12, att.

9).

The Farmdale

sand and Kansan sand aquifers apparently converge at some point

north of

the site.

(Ex.

12,

Att.

3,

p.10).

The landfill

invert

slopes 0.5

from

717 feet at the south end to

712 feet at the

north end.

The lowermost natural contour along

the perimeter of

the Phase

I excavation,

which

is at

its north end,

is about

723

feet.

(Ex.

27

&

29).

At least

the southern portion

of the site

is

a groundwater recharge zone.

(Ex.

12, Att.

3,

p.

11).

The

piezometric surface

is nearly parallel

to and about

two feet

below

the invert.

(Ex.

12, Att.

3).

The record also

conflictingly places the piezometric level slightly lower

in an

idealized cross—sectional drawing of the facility.

It was on

this idealized level

that BFI

based its containment

calculations.

(Ex.

12, Att.

2;

Ex.

26).

Adjustment

of the

idealized level to the actual level otherwise indicated by the

record could affect BFI’s containment estimates.

A maximum leachate depth

of

14

feet,

at elevation 726 feet,

is six feet below the top of the north berm, but between about

one and five feet above

the ground level north of the berm.

(Ex.

12, Att.

2;

Ex.

28).

The berm therefore acts as

a dike retaining

leachate

in the fill.

BFI calculated that the landfill would

retain the leachate about 164 years before

it migrated into the

lower aquifer.

To achieve

this containment

a gradient of less

than 1.0 was deemed necessary,

dictating

a maximum leachate depth

of 14

feet at elevation

726

feet.

Increased gradient would

result

in less containment.

(Ex.

12,

Att.

2,

pp.

6—7).

Examination of BFI’s calculations reveals that

the

containment time

is inversely proportional

to the gradient and

directly proportional

to variation

in the leachate depth.

It

appears that

a one foot decrease

in leachate depth from 726 feet

decreases

the gradient by 5.9

and increases containment by 6.3,

so decreasing

the leachate depth

to one foot

(from 14

feet)

decreases the gradient

to 0.235

and

increases

contai,nment to 697

years.

This assumes

a clay permeability

of

1

x l0’

cm/sec,

or

0.103

feet per year,

as relied on by BFI.

(Ex.

12, Att.

2,

p.

10;

Ex.

26).

The Agency asserted

that the SF1 estimate of 164 years

is

based on ideal assumptions and does not reflect what

is actually

Occurring.

The Agency believes that the formula employed, called

Darcy’s

Law,

is

the least accurate

of

a few options

for

estimating leachate losses from the fill under

the circumstances

here.

(R.

139).

Further,

the Agency believes

that BFI’s

application of Darcy’s

Law may have inflated leachate retention

89—14

---

—13—

by

up

to three

times by failing

to account

for soil porosity.

(R.

145—46).

In summary,

BFI believes leachate will reach

the lower

aquifer

in 164 years,

and the Agency believes

it will

reach

the

lower

aquifer

in as little as about

55 years.

Unfortunately,

this dispute misses the central

issue.

The question

is not when

leachate will

reach the lower

aquifer, but rather, what impact

will

it have when

it does arrive?

Contamination of

an aquifer

does not become acceptable simply because

it will happen a

specified number

of years

in the future.

The record contains no

evaluation

of the impact the leachate will have

on the aquifer,

regardless

of when

it occurs.

This

is

a serious deficiency

in

EFI’s

case.

The Agency expressed concern

in its review of the original

closure application because

the data did not account for

the

movement

of liquid through

the landfill by calculating

the amount

of liquid entering and leaving

the landfill.

The Agency calls

this method “water mass balancing” and asserts

it

is

a more

reliable method

of estimating leachate

loss

in this particular

case.

(R.

139).

In effect, water entering the landfill by

infiltration ultimately must either increase the leachate head or

it must leave

the landfill.

BFI

indicates

that

it has never

removed leachate from the landfill, except

to recirculate

it back

into the fill material.

The leachate level achieved 726 feet

in

October,

1982 and has not exceeded this level

(R. 95—99; SF1

Answers

to Interrogatories).

Since

the evidence indicates no

increase

in the leachate head,

the water must be exiting

the

landfill.

Therefore,

the respective estimates

of how much

infiltration

is occurring become quite relevant.

Estimates

of infiltration submitted

by BFI

in

response

to

the second Agency rejection of

its plan indicate 8.64 inches

of

water

per year percolate through the topsoil

into the cover.

SF1

estimated

a “conservative”

1.96

inches per year percolate through

the cover

into the waste.

BFI does not account

for the 6.68

inches (8.64 inches less 1.96

inches)

of water per year which

percolate

through the topsoil

but somehow do not penetrate

to the

waste.

(Ex.

6).

The Phase

I area

is about

22 acres

(see Ex.

27);

See also

Ex.

16,

p.

3

(indicating

25 acres)),

so

infiltration

of l.~6inches

of water translates

to about 98,100

gallons

per month.

The “Soils Data” portion of BFI’s

plan

contains

an engineer’s estimate from

1973 that normal anticipated

infiltration through the cover

should amount

to six

inches per

year,

or

4,000 cubic feet per day of leachate accumulation

for

4Phase

1 occupies 22.1 acres

(Ex.

27).

1.96 inches of

infiltration through this area results

in 1.18 million gallons

per year,

or 98,100 gallons per month,

average.

89—15

---

—14—

the entire

70 acre area

of all three phases

of the landfill

area.

(Ex.

12 Att.

3

p.

16).

This translates

to 3.60 million

gallons per year,

or

an average

of 300,000 gallons

per month,

for

a 22 acre area.

The Agency testimony indicates an estimated

313,000 gallons

of infiltration per month based on BFI’s estimated figures.

(R.

149—50).

The Agency did not provide

the specifics

of the

calculation they used,

but BFI did not rebut their figure with

testimony at hearing

or arguments

in the briefs.

In summary, BFI’s figures would show about 98,100 gallons

per month will enter the landfill,

the Agency believes about

313,000 gallons

per month will enter.

Regardless

of the exact

amount,

two critical question remain:

(1) Where has

this liquid

gone

in the past,

and where will

it go

in the future when it

leaves the landfill?; and

(2) What

is

its impact on local

groundwater quality?

There are only two methods by which liquid

will leave the landfill:

by the drawdown sump or through

the

liner

and into the groundwater.

BFI variously proposed removing

5000 gallons

of leachate per

month or 5000 gallons of leachate per week from the drawdown sump

as

a part

of their proposed Closure/Post—Closure Plan

(Ex.

2;

Ex.

12, Att.

8).

Even assuming the higher weekly withdrawal

rate,

this leaves

a substantial amount

of leachate volume unaccounted

for

in

the record.

Assuming

a 5000 gallon per week withdrawal

rate and the SF1—based figures

of 98,100 gallons

per month

infiltration, this leaves over 900,000 gallons of

leachate

migration out of

the landfill per year

in an unknown manner.

Using

the Agency estimate of 313,000 gallons

of infiltration per

month,

the estimated annual loss would be

3.5 million gallons.

The Board would find the discrepancy between 900,000 gallons

per year and 3.5 million gallons per year

to be insignificant so

long

as

the destination

of this leachate were properly

characterized and its impact properly evaluated.

Unfortunately,

that

is not the case.

The record does not provide guidance on

where this leachate

is going or its possible impact on

destination.

In

fact,

as shown

in

the next section of this

opinion,

the record does not provide an evaluation of what

contaminant levels might exist

in the leachate.

This deficiency

is

fatal

to BFI’s

case.

The Board

is

unwilling

to conclude

as

a matter

of law that over 900,000

gallons of leachate per

year from

a hazardous waste landfill

cannot cause pollution,

and BFI has provided no information to

allow that conclusion as

a matter

of

fact.

The Board must

therefore conclude that BFI has not proven

that the leachate head

at

14 feet will not cause migration of contaminants

into

groundwater

in

a quantity or concentration that would violate

Board water quality standards

or

risk harm

to the environment.

89—16

---

—15—

Having concluded that

the

14

foot

leachate head

is

unacceptable,

the Board will now evaluate wheth~r the Agency’s

imposition

of

a one foot head was unreasonable.~ First, SF1 does

not dispute

that

it

is

technically possible to withdraw leachate

to a one foot head

(R.

89—90;

172—73).

The question

is whether

such action

is

reasonable when the economic cost

is measured

against

the environmental benefit.

SF1 has estimated

the cost of

removal at 40.5c~ per gallon for transportation,

treatment, and

disposal at Chem—Clear,

based

on the assumption

of treatm~ntas a

hazardous waste.

This totals about

$9.9 million

(R. 89).° The

record does not indicate whether

BFI has considered

lower cost

alternatives

or whether BFL merely presented the highest cost

method

of disposal

to the Board.

The record does not directly indicate the impact of such

a

removal, but some

inferences are possible.

Despite any alleged

inaccuracy

in BFI’s application of

Darcy’s Law,

the formula

indicates

that the rate

of

leachate retention increases

proportionately with the decrease

in maximum leachate depth.

This would

indicate

a concommitant decrease

in the rate

of

leachate

loss.

Further,

assuming

no change

in the rate of

infiltration, reducing the leachate depth could enhance

the

dilution effect of this

infiltration over time.

Unfortunately,

BFI has not provided

information which would

allow an evaluation of the environmental

impact of the 14 foot

level,

so

it left the Agency to

infer

a substantial environmental

benefit of

reducing the level

to one foot.

Therefore,

the Board

cannot conclude that the economic cost

to BFI

of reducing the

leachate head outweighs

the resulting environmental benefit.

The

Board notes

that the Agency repeatedly asked SF1

to provide

information that would have allowed Agency and Board evaluation

of the reduced impact which would occur at

the one foot head

~

engaging

in

this concluding analysis,

the Board

has not

placed the Agency

“on trail,”

as previously noted on page

8 of

this Opinion and Order.

The Board merely augments its analysis

by exploring

the options available

to the Agency as

a result of

BFI’s recalcitrance

in forwarding necessary information

to the

Agency.

6The Agency argues that the economic cost of compliance

is

immaterial

(Agency Response at

21).

Whatever the pursuasive

appeal

of this argument

in another

context,

it does not apply in

such

a proceeding

as

this,

where

the Board must exercise

discretion,

and the Agency must impose conditions “where

environmental control standards are pliant

to differing

conditions

....“

Commonwealth Edison Co.

v.

Pollution Control

Board,

127

Ill.

App.

3d

446,

448,

468 N.E.2d

1339,

1341

(3d Dist.

1984)

89—17

---

—16—

level,

but SF1 declined

to provide

it

(Ex.

2,

6,

8,

9

&

11).

Therefore,

the Board must conclude that

the one foot head level

cannot

be considered unreasonable.

In summary,

SF1 has failed

to prove that the

14 foot maximum

leachate depth

it originally provided

in its Closure/Post—Closure

Plan would

not result

in

a violation of the Act.

The record

supports reducing

the leachate depth

to the minimum practicable

level,

and

that the one

foot level

is technically feasible.

SF1

declined

to provide information for the record which would allow

a conclusion that the one foot level

is unreasonable.

Therefore

the Agency imposition of

a one foot leachate head level

is

affirmed.

II.

Leachate Characterization

and Disposal

The second substantive

issue before the Board

is

Modification Paragraph

3,

which would require SF1

to analyze

its

leachate and provide

a proposed method

of disposal:

By

October

1,

1984,

a

leachate

evaluation

report shall

be submitted,

which discusses the

hazardous constituents, amount accumulated and

suitable

means

of

disposal

of

accumulated

leachate.

Analysis

of

the leachate shall

be

performed

to

determine

concentration

of

all

toxic

or

hazardous

constituents

which

are

hazardous

by

characteristic

or

are

listed

in

40

CFR

261

Appendix

VIII.

A

proposal

for

disposal of the leachate shall be made.

The Board believes that the same two provisions

of the Act and

same two regulations

listed

in Section

I

of this opinion,

Leachate Head,

should be applied

to the facts here.

Taken

together,

these statutory and regulatory requirements establish

a

narrative standard

for review

of the facts

in this case.

The

facility operator must have sufficient information

in the record

regarding

the characteristics

of the hazardous wastes and

the

leachate

in the landfill

to demonstrate that migration of

hazardous waste constituents,

or other pollutant migration,

into

groundwater would

not cause water pollution or environmental

harm.

In evaluating whether water pollution or environmental

harm might occur,

the Board’s water quality standards would

provide at least minimal guidance.

The regulations also provide

that the factors

in Section 725.410(c) must

be addressed

in

demonstrating whether

the narrative standard will be met.

This standard will

be particularly difficult

for SF1

to

achieve,

since

the record already demonstrates that annually

900,000

to 3.5 million gallons

of leachate leave

the SF1 facility

in an unknown manner.

The burden

is even more difficult

for SF1,

Since the record contains absolutely no chemical analysis

of

the

89—18

---

—17—

leachate.

Any

evaluation

of

the

character

of

the

leachate

must

therefore be premised on knowledge of the wastes which were

disposed of

at the facility.

Facility records indicate that SF1 disposed of about

1,900,000 cubic yards

(384 million gallons)

of uncompacted waste

in the landfill,

of which about 36,000 cubic yards

(7,300,000

gallons),

or

about

2

are hazardous waste

(Ex.

12,

pp.

33

& 14;

Ex.

6,

p.

3).

BFI broadly describes

the compositions of

its

hazardous wastes

in

a single paragraph:

Of

the

hazardous

wastes

placed

in

the

facility,

approximate

sic

85

were

in

solid

or

semi—solid

form,

while

approximately

15

were

in

liquid form.

Approximately 96

of

the

hazardous

wastes

handled

were

heavy

metal

sludges

typically

produced

by

Rockford

area

industry.

Of

the

total

hazardous

waste

receipts,

approximately

60

were

waste

classification

F006

(waste

water

treatment

sludges

from

the electroplating

industry)

and

31

were waste classification DOOl—DOll

(heavy

metal

EP

toxicity).

Approximately

4

(less

than

1,500

cubic

yards)

of

the

hazardous

wastes

accepted

are other

than

metal

bearing

sludges.

This

other

category

includes

spent

solvent

still

bottoms/sludges,

petroleum

refining

residues

and

minor

amounts

of

chemicals

such

as

rodenticide,

glycol,

polystyrene

and phthalic anhydride.

(Ex.

12,

p.

14)

The 1,500 cubic yards

(300,000 gallons)

of hazardous wastes which

BFI described as “other

than metal bearing sludges” constitutes

only 0.079

of the total waste volume,

but still represents

a

significant volume.

The Board notes

that use

of compacted waste

volumes would severely affect BFI’s hazardous waste proportion

estimates.

BFI further

states that

less than 0.1

of the total waste

volume

(less than 1,900 cubic yards or 380,000 gallons)

“consists

of wastes

that might produce volatile vapor which might contain

hazardous constituents.”

Included

in this 0.1

is the 0.000634

of

the total waste volume

(12 cubic yards or

2,400 gallons) which

consists

of

solvents and petroleum refining resides

(Ex.

8,

p.

2;

see

R.

160).

This number,

“0.000634,”

is repeated frequently by

BFI

in the transcripts and briefs; however,

its significance and

accuracy are debatable

in light of other record information.

The record includes

a June

1,

1982 survey of solvent

disposal

in

Illinois landfills.

The survey indicates BFI

then

held

24 still—valid

(at the

time

of the survey)

disposal permits

89—19

---

—18—

for

a total

of 2,190,000 gallons

of solvent—containing wastes

for

this facility.

Of these permits, six were for 1,1,1—

trichloroethane,

four were for alcohols,

two for acetone,

two for

mineral spirits,

and one for naptha.

The survey concedes that

Agency experience

indicates that actual disposal volumes are

substantially less than the permitted volumes.

A detailed

listing of

the permits

for

the facility (which included permits

which had expired

prior

to the survey date)

indicates

a total

authorized volume of 3,460,000 gallons

of various organic and

chlorinated organic solvent—bearing wastes

of various solvent

contents,

and

of

individual permitted volumes ranging

up to 1.5

million gallons

(Ex.

18).

SF1 disputes this survey only by affirming that

the volumes

actually received were

less than those permitted.

BFI then

singles out one entry,

“1,500,000

gallons

solvents

(97.5),”

and states that BFI actually received 871,450 gallons

of what

“should have

read,

water

and water soluble solvents

97.5 percent”

(R.

92—93;

Ex.

18).

Substantial clarification

is necessary

to

harmonize the record information regarding SF1 solvent—bearing

waste permits

and BF1’s 0.000634

assertion.

In summary,

the facility operated from December

1976

to

January,

1983.

The record contains no information on the

identities

or volumes

of hazardous waste received prior

to

1978.

From 1978

to November

19,

1980,

the record contains

generalized information

that does not identify the wastes with

particularity.

The information on wastes disposed

from November

19,

1980 onward may

be adequate in content but only covers about

35

of the facility’s operational

lifetime.

Further, BFI’S

Closure/post—Closure Plan only

included “detailed” waste

records

for October and December,

1982

(Ex.

12, Att.

5).

With such

limited

information the Board cannot conclude that SF1 has

demonstrated that the identities and quantities

of contaminants

in the leachate are sufficiently characterized

to prove

that they

will not cause environmental harm when released to the

underground waters.

In

a similar vein, the Board must conclude that the Agency’s

imposition

of full Appendix VIII

testing

is appropriate and

reasonable.

With

the quantity of leachate which

is escaping from

this facility to an unknown location the Board believes

a full

and complete chemical analysis to characterize that leachate

is,

at

a minimum,

reasonable.

Therefore

the Agency modification

regarding leachate testing

is affirmed.

The Board

is aware of

89—20

---

—19—

the ~ost estimated by

SF1

as about $7,000 per sample

(B.

84—

87).

However,

this cost may prove insignificant

if

an aquifer

is

at

a significant risk of contamination.

The second issue regarding Modification Paragraph

3

is the

requirement that BFI submit

a plan

for leachate disposal.

The

BFI Closure/Post—Closure Plan submitted April

13,

1984 merely

incidentally provided that SF1

could remove excess leachate

from

the landfill

if necessary

(Ex.

12, pp.

13,

17,

18

& Att.

2,

p.

7).

BFI

included

in

its plan the October

5,

1976 Application for

Supplemental Development Permit which changed the original plan

for leachate disposal at

a sewage treatment plant

to one of

containment and natural soil attenuation

(Ex.

12, Att.

2,

p.

5;

Ex.

26,

p.

5).

This document did not and could not provide

for

the hazardous waste nature of the facility and

leachate.

Another

attachment from September

16,

1982 regarded a supplemental permit

for leachate removal.

It provided

for disposal

in the “active

dry refuse daily fill”

(Ex.

12,

Att.

8;

Ex.

21).

The plan

included

no other provisions

for leachate disposal.

SF1 did not

address

leachate disposal

in

its June

4,

1984 reply

to the

initial

Agency rejection,

but highlighted

the containment—natural

attenuation provision of

its October,

1976 Application

(Ex.

8,

p.

4).

It

is apparent from the SF1 brief that this plan of

containment and natural attenuation

is its leachate disposal plan

(Petitioner’s Brief at 23).

This brief, however, was not before

the Agency on July 27,

1984

—

any merit or lack

of merit

to this

mode

of disposal notwithstanding.

BFI finally proposed

in

its July

25,

1984

letter to the

Agency

to remove 5,000 gallons

per month,

analyze

it

for

hazardous characteristics

and constituents,

and “dispose of the

waste

in accordance with applicable

state regulations.”

BFI

conceded

it would consider the waste hazardous because derived

from hazardous wastes,

and expressed

a possible intent

to file

for delisting

and withdraw less from the landfill

if experience

proved

it

to not possess hazardous characteristics

or contain

hazardous constituents

(Ex.

2,

p.

2).

The SF1 plan did not provide any single, acceptable

provision which outlined any sound method

for disposal

of excess

7There

is some confusion as

to the actual cost of this screen-

ing.

Agency Modification Paragraph

3

at

issue

required BFI

to

submit only

a single report characterizing

the leachate

(Ex.

I,

p.

1).

BFI understood

this to mean performing each analysis on

four replicate samples

(R.

86).

This inflates the cost

to

the

$28,000 asserted by BFI

(See

R.

84—87; Petitioner’s Brief

at

12).

Nothing

in the record clarifies this apparent

discrepancy.

The Board makes no attempt to give

any opinion on

this apparent discrepancy,

but merely observes its existence.

89—21

---

—20—

leachate during

the closure and post—closure periods.

The BF’I

plan must include such

a provision and outline

a procedure for

leachate disposal with reasonable particularity.

The Board gives

no opinion as

to what constitutes an acceptable plan or method

of

disposal,

beyond the determination that the plan outlined

by BFI

did not satisfy the requirements

of the Act and regulations.

The

Board affirms

the Agency condition requiring SF1

to submit

a

disposal plan.

III.

Groundwater Monitoring

The third substantive issue before the Board

is groundwater

monitoring criteria and Agency Modification Paragraph

5(j).

This

imposes

the additional

requirement that BFI monitor

the

groundwater for three specific halogenated otganic solvents:

l,l,1—trichloroethane,

trichloroethylene,

and methylene chloride

(EX.

1,

pp.

2—3).

SF1 already monitors the groundwater

for

total

organic carbon

(TOC)

and total organic halide

(TOX)

(Ex.

12,

Att.

9;

Petition at 7—8;

Petitioner’s Brief at 34—35).

BF1 estimates

that the cost of these additional analyses

is $300 per monitoring

sample,

or about $252,000 throughout

the post—closure period

(Petitioner’s Brief

at

36;

R.

90).

SF1 contends that the testing

for TOC and TOX would sufficiently detect groundwater

contamination because

they would both detect the presence of all

three halogenated solvents

(Petitioner’s Brief at 35).

The regulations require the owner

or operator

of

a landfill

to “implement

a groundwater

monitoring program capable

of

determining the facility’s

impact on the quality of groundwater

in the uppermost aquifer underlying the facility

....“

35 Ill.

Mm.

Code 725.190(a)

(1984).

The regulations provide

for testing

for various criteria,

including TOC and TOX,

but not explicitly

including

the three organic solvent parameters

imposed by the

Agency.

35

Ill.

Adm.

Code 725.192(b)

& App.

C

(1984);

see

40 CFR

265 App.

III

(1984).

The regulations do provide for more

extensive monitoring

once contamination

is suspected

based on the

routine monitoring results, when the facility

is engaged

in

assessment monitoring.

35 Ill.

Adm.

Code 725.193

(1984).

This

would provide

a firm basis for selecting additional

testing

criteria

in such

a circumstance, but this does not specifically

require inclusion of additional criteria as part of

the routine

monitoring.

The Agency once did notify SF1 on June

18,

1982 that

it would require groundwater monitoring

for the three halogenated

solvent parameters

(Ex.

19),

but did not include them in the

testing criteria stipulated

in BFI’s December

20,

1983

Supplemental Permit No.

1983—74

(Ex.

12,

Att.

9).

The record

indicates that unknown quantities

of 1,1,1—

trichloroethane,

trichloroethylene, and methylene chloride are

likely resident

in

the landfill.

All are named

as having been

permitted

for disposal

at the site

in various quantities and

concentrations

(Ex.

18).

The record indicates controversy as

to

89—22

---

—21—

whether these solvents are among several

that may significantly

increase

the permeability

of landfill clay liners

(Ex.

18; Ex.

8,

pp.

2—3).

These parameter—specific tests may prove of special

concern

for this reason,

but also

for their greater sensitivity

and specificity.

The record indicates

that TOC includes both

naturally—occurring

and man—made organic compounds.

TOX

specifically detects chlorinated organic compounds,

including

these three specific chlorinated solvents

(R.

115;

Petitioner’s

Brief at 35).

The detection limits for the TOC and TOX testing

procedures, however,

are higher than

those

for

the specific

compounds

(B.

116;

Agency Brief at

22).

Further, the TOC and TOX

procedures would detect broad classes of compounds

of no

environmental concern

(Agency Srief

at

22).

These

facts force

the conclusion that the more specific testing

for the individual

compounds

is more desirable,

especially since

they are probably

present

in the landfill

in some quantities and they are of

particular

technical

and regulatory concern.

Further, testing

for these specific solvent parameters would likely prove more

protective

of the environment.

In Waste Management,

Inc.

v.

Illinois Environmental

Protection Agency,

PCB 84—45,

PCB 84—61

& PCB 84—68

(Oct.

1,

1984),

aff’d sub

norn.

Environmental Protection Agency

v.

Pollution Control Board,

138 Ill.App.3d

550,

486 N.E.2d

293

(3d

Dist.

1985),

aff’d

115 Ill.2d 65,

503 N.E.2d

343

(1986),

the

Board observed that the Agency has traditionally had

discretionary authority

to prescribe reasonable groundwater

monitoring criteria as part of

its landfill permitting

authority.

Waste Management at

23.

One restriction on this

authority

was

that

the

criteria

imposed

must

be

necessary

to

accomplish the purposes

of the Act and not

be inconsistent with

Board regulations.

Id.

at

19.

A second restriction was that the

criteria selection must be based on what wastes are resident in

the landfill.

Id.

at

24.

The present proceeding

is very similar

to Waste Management,

with one major exception:

SF1 has failed

to

characterize

its leachate either by analysis or

by providing

a

detailed inventory of

the wastes

in the landfill.

In the absence of

necessary information;

in light of the

fact that l,l,l—trichloroethane,

trichloroethylene, and methylene

chloride are probably present

in the landfill; and because the

specific analyses

for these criteria

is more sensitive and

conveys more pertinent information,

the Board concludes

that the

Agency acted properly

to require testing for these specific

parameters

to assure

that

no violation of the Act or regulations

would occur.

This conclusion results

from the inadequacy

of the

information which BFI provided the Agency.

The Board affirms

the

Agency modification.

89—23

---

—22—

IV.

Statistical Analysis

The fourth substantive

issue concerns Agency Modification

Paragraph

5(1),

which requires SF1

to statistically analyze

its

groundwater monitoring results using

the .1 level

of Cochran’s

Approximation of the Behrens—Fisher Student’s T—Test

as set forth

in the regulations.

35

Ill.

Adm.

Code 725 App. D (1984);

40 CFR

265 App.

IV

(1984).

The BFI submissions

to the Agency included

no provision for

a test for significance.

(See Ex.

2,

6,

8,

& 12

Att.

9.)

Even

if they had provided another

test,

it would have

riot complied with Board regulations.

The regulations require the

test imposed by

the Agency.

35 Ill. Adm. Code 725.193(b)

(1984).

SF1 argues that controversy surrounds the use of this test

and that more reliable tests exist

(Petition at

8; Petitioner’s

Brief

at 36—37;

see B.

51—52).

This

is irrelevant because

the

Agency lacks authority

to substitute

any alternative

in the face

of

an explicit regulatory directive.

Ill.Rev.Stat.

Ch. 111—1/2,

Section 1039

(1988);

35 Ill.

Adm. Code 702.108(a)

(1984).

The

Agency modification

is affirmed.

V.

Agency Plan Modification

The final

substantive

issue concerns

a proviso set forth by

the

Agency

in

its

final

modification

of

the

SF1

plan:

If

the

Agency

determines

that

implementation

of

the Closure

and Post—Closure Plan fails

to

satisfy

requirements

of

35

Ill.

Mm.

Code

725.211,

the

Agency

reserves

the

right

to

amend

this

Closure

and

Post—Closure

Plan.

(Ex.

1,

p.

5).

BFI argues that the Agency lacks authority to modify the plan and

that such a unilateral modification would violate

its due process

rights (Petitioner’s Brief at 38—39; Petitioner’s Reply Brief

at

17—18).

The Board’s regulations include

a provision whereby the

Director

of the Agency can modify

a plan “if he deems

it

necessary

to prevent threats

to human health and the

environment.”

35

Ill. Adm. Code 725.218(f)(2)

(1984).

This

provision includes an opportunity for public notice,

public

hearing,

and consideration

of comments prior

to

a final decision,

and provides

criteria for decisionmaking.

Further, the rules

give SF1 a

right

to appeal the Agency modification,

just as SF1

has done

in this proceeding.

35

111. Mm.

Code 725.218(g)

(1984).

The Agency asserts no extra—statutory authority in this

concluding proviso which does not comport with BFI’s due process

rights.

See Waste Management at 20—21.

The Agency modification

is affirmed.

89—24

---

—23—

In summary,

the Board affirms

all five modifications

to the

BFI Closure/Post—Closure Plan.

This decision

is largely

predicated

on

a

lack

of

necessary

information

in

the

record

to

adequately support BFI’s plan as submitted to the Agency.

The

Board acknowledges

that the real issues involved in this case are

the leachate depth and groundwater monitoring

issues.

These are

the “big ticket”

items which will cost SF1 many dollars over

several years.

The Board notes, however,

that SF1 will

be free

to petition the Agency

for modification, when

it has assembled

sufficient information

to demonstrate that less stringent

requirements are justified.

See 35

Ill.

Adm. Code 725.218

(1988).

To do

this,

BFI must acquire

the necessary data

—

data

which are lacking

in this proceeding.

Supplemental Issues

Two supplemental issues

in

this proceeding deserve

attention.

The first supplemental

issue before the Board regards

the scope and content

of the Agency record on review.

The Board

must constrain

its review to the record before the Agency when

it

modified the SF1 Closure/Post—Closure Plan on July 27,

1984 and

that developed at

the hearing.

Environmental Protection Agency

v. Pollution Control Board,

118 Ill.App.3d 772,

780—781, 455

N.E.2d

188,

194 (1st Dist.

1983);

1l1.Rev.Stat.

ch.

111—1/2,

Section 1040(d)

(1988);

35

Ill. Mm.

Code l05.103(b)(2)

(1982).

The Board

rules governing permit appeals provide that the Agency

has a certain

time

following the filing of an appeal petition to

file “the entire Agency record of the permit application

....“

35

Ill. Mm.

Code l05.102(a)(4)

(1982).

The issue arises

in this

proceeding whether certain evidence

is admissible

in light of

these restrictions.

By the April

4,

1988 “Attachment

A”

to its April

1,

1988

Respondent’s Brief,

the Agency seeks

to admit several additional

documents

to the Board record.

BFI has challenged the admission

of these documents

in its April

8,

1988 Petitioner’s Reply

Brief.

These include the following documents which were not part

of the Agency record submitted

in 1985:

1.

A July

29, 1982 BFI submission

of ground-

water

monitoring

results

from

April

8,

1982

indicating

an

elevated lead content

in the groundwater;

2.

A

March

2,

1983

Andrews

Engineering

letter

to

the

Agency

indicating

that

several

revisions

and

upgradirigs

were

necessary

to the BFI groundwater monitor-

ing

wells

so

they

might

provide

more

reliable

results

from

the

lower

Kansan

Sand

aquifer

underlying

the

fill,

rather

than

the

upper

Farmdale

Sand

aquifer

89—25

---

—24—

which

“pinches

out” down gradient

of

the

fill,

which

the fill

transects,

and

which

is

cut—off

from

the

fill

by

a

clay

barrier wall

(See

B. Exs.

27—29);

3.

A May

20,

1983 Andrews Engineering letter

to

the Agency regarding

the

installation

of

10 new groundwater monitoring wells,

7

immediately

and

3

at

a

future

time,

and

acknowledging

Agency

stringency

on

monitoring criteria selection;

4.

A

May

27,

1983

Agency

letter

to

SF1

granting

supplemental

permit

1983—74

for

the

installation

of

11

monitoring

wells,

three

in

the future,

imposing

a require-

ment

for quarterly

analysis

for

TOC

and

TOX,

and

requiring

collection

of

data

that

could

indicate

both

horizontal

and

vertical

groundwater

flow

at

the

site;

and

5.

A September

26,

1984 Agency

letter to SF1

identifying

three

apparent

violations

of

the Board rules:

a.

failure

to

perform

the

required

Student’s

T—Test

statistical

analysis

of

groundwater

monitoring

data

(See

35

Ill.

Adm.

Code

725.l93(5T(l984)

b.

failure

to provide written notice

to

the Agency

that

the landfill may

be

affecting groundwater quality if the

statistical

test

indicates

a signi-

ficant

increase

in

groundwater

quality indicators

or decrease

in pH

(See 35

Ill. Adm. Code 725.l93(d)(l)

(1984));

and

c.

failure

to

submit

a

certified

groundwater

quality

assessment

program

to

the

Agency

(See

35

Ill.

Mm.

Code 725.l93(d)(2)

(1984)).

based

on

May

18,

1984

groundwater moni-

toring

data,

which

showed

statistically

significant

increases

in

specific

conductance

and

decreases

in

pH

at

various

downgradient

site

monitoring

wells,

and

on

August

7,

1984

data which

89—26

---

—25—

confirmed the pH decrease in these wells,

the

specific

conductance

increase

in

some,

a

TOX

increase

in

one,

and

a

TOC

increase

in another.

The Agency failed

to explain

in

its April

1,

1988 brief why it

did not tender these documents with the Agency record on October

25, 1985.

The July 29,

1982 letter,

the March

2,

1983 proposal,

the

May 20, 1983 application,

and the May 27,

1983 supplemental

permit were before the Agency when it made its July

27,

1984

decision

to modify BFI’s Closure/Post—Closure Plan.

Therefore,

the Agency could have properly included those documents into the

record for Board

review.

The September

26,

1984 letter post-

dated

the Agency permit decision and could not have been properly

included

in the record.

However,

the letter itself cited May 18,

1984 monitoring data which

indicated possible contamination.

This information could have been included

in the Agency record.

The Board admonishes

the Agency to assure that such infor-

mation

is submitted with the Agency record or brought out prior

to the hearings.

Since the Board has made its decision based on information

submitted by the Agency on October

25,

1985,

and without

considering

these late—filed documents,

the question of

the

admissibility of this late—filed information need not be decided.

The second supplemental

issue before the Board

is the

applicability of the regulations at

35 Ill. Mm.

Code Part 724

to

BFI’s facility.

Both parties agreed that Part 725 regulations

applied

to the permit decisions,

and that Part 724 did not

directly apply.

The Agency contended

that Part

724 provides at

least minimal guidance.

The Board has avoided Part 724.

It has

decided

this proceeding based solely on Illinois law and

regulations as they stood on July 27, 1984 and applied under Part

725

to interim status facilities.

The Board observes,

however,

that certain state and federal regulatory changes are now

in

progress that will affect the future application of

this

decision.

SF1

asserts:

The

Agency

attempted

to

apply

the

more

stringent

closure/post—closure

standards

of

Section

724

to

the

subject site

based

on

its

belief

that

as

an

interim

status

site,

SF1

would

ultimately

have

to

obtain

a

Part

B

permit

and

would

then

be

subject

to

the

Section 724 standards.

T.

41—42,

T.

131.

BFI

has

reviewed

the

relevant

statutes

and

89—27

---

—26—

regulations,

together

with

the

relevant

preambles

and

USEPA

memos,

and

has

concluded

that

no

further

post—closure

permit

would

be

required

by

the

facility

once

it

filed

and

obtained approval

of its closure plan.

Petitioner’s Brief,

p.

30.

The Board agrees that

in 1984 the Agency could

not properly have

applied the Part 724 standards

to BFI’s facility,

and that

no

further permits would have been required.

That

is not,

however,

true

today.

In 1984, Congress amended RCRA to add new Section 3005

(i).

That provision

requires all hazardous waste facilities

which had received hazardous wastes after July 26,

1982,

to

comply with certain regulatory

requi.rerner.ts

for new facilities.

On

December

1,

1987,

USEPA

adopted

final

regulations

implementing

Section

3005

(i)

at Volume

52, page 45788

of

the

Federal

Register.

That regulation

not only requires compliance with the

federal equivalent

of Part

724,

but the preamble to the

regulation makes

it clear that such facilities must submit

a Part

B application and obtain

a RCRA permit:

Therefore,

today’s

final

rule

differs

from

the

proposed

revision

to

Section

270.1(c)

by

requiring

post—closure

permits

for

any

landfill,

surface

impoundment,

waste

pile,

or

land

treatment

unit

which

received

waste

after

July

26,

1982,

or

which

closed

after

January

26,

1983.

The term

“closure”

in this

context

has

been

clarified

to

mean

certification

of

closure according

to Section 265.115.

52 Fed. Reg.

45794—95

(Dec.

1,

1987).

Since

BFI’s facility received hazardous waste

after July

26,

1982, and did not certify closure prior

to January 26,

1983

(see

35

Ill.

Adm.

Code 725.215

(1988);

40 CFR, Section 265.215

(1987)), SF1

is clearly subject

to the December

1,

1987

regulations.

Further,

those federal regulations are legally

applicable

to SF1

as

of December

1,

1987:

Prior

to

FISWA

a State with final authorization

administered

its

hazardous

waste

program

entirely

in

lieu

of

the

Federal program.

The

Federal

requirements

no

longer

applied

in the

authorized

State,

and

EPA

could

not

issue

permits

for

any

facilities

in

a

state

where

the

State

was

authorized

to

issue

permits.

When

new,

more

stringent Federal

requirements

were

promulgated

or

enacted,

the

State

was

obligated

to enact equivalent authority within

89—28

---

—27-

specified

time

frames.

New

Federal

requirements

did

not

take

effect

in

an

authorized

State

until

the

State

adopted

the

requirements

as State

law.

In contrast,

under

Section

3006(g)

of

RCRA,

42

U.S.C.

6926(g),

new

requirements

and

prohibitions

imposed

by

the

HSWA

take

effect

in

authorized

States

at

the

same

time

they

take

effect

in

nonauthorized States.

EPA

is

directed

to

carry

out

those

requirements

and

prohibitions

in

authorized

States,

including

the

issuance

of

permits,

until

the

State

is

granted authorization

to

do

so.

While States

must

still

adopt

HSWA—related

provisions

as

State

law

to

retain

final

authorization,

the

HSWA

requirements

are

applied

by

EPA

in

authorized States

in the interim.

Today’s

rule

is

promulgated

pursuant

to

RCRA

Sections 3004(u),

3004(v)

and

3005(t).

These

provisions were added by HSWA.

Therefore,

the

Agency

is adding the requirement

to Table

1

in

Section

271.1(j)

which

identifies

the Federal

program

requirements

that

are

promulgated

pursuant

to

HSWA

and

that

take

effect

in

all

States,

regardless

of

their

authorization

status.

52

Fed.

Reg.

45796

(Dec.

1,

1987).

Therefore, while the Agency could not,

in

1984, properly apply

the state counterpart of the

federal Part 264 regulations to SF1,

a substantial portion

of the impact of today’s decision has been

undercut by developments

in federal law during the pendancy of

this permit appeal.

Those federal regulations do apply

to BFI’s

facility today as

a matter

of federal

law,

and they have since

December,

1987.

Today’s Board decision does not imply

that they

do

not.

On February

25,

1988,

the Board proposed state regulatory

counterparts

to the USEPA December

1,

1987 regulations

(R87—39)

for public comment.

(R87—39; see

12 Ill.

Beg.

6476

(Apr.

8,

1988)).

Any final adoption

of these regulations would apply

to

BFI’s facility.

The Board

is specifically not making any

decision as

to what actions,

if

any, would be required at the BFI

facility under any final adoption of these proposed regulations.

Once the R87—39 and several other regulatory proceedings are

final,

the State will attempt to secure HSWA approval from

USEPA.

Today’s decision interprets 1984

law and has no bearing

on the State’s HSWA regulatory

package.

89—29

---

—28—

This

Opinion

constitutes

the Board’s findings of facts

and

conclusions of law

in this matter.

ORDER

The Illinois Environmental Protection Agency’s Modification

Plan

of July 27,

1984

for Browning—Ferris

Industries of Illinois,

Inc.

Closure and Post—Closure Plan

for

its Davis Junction

Landfill facility

is hereby affirmed by the Board.

Section

41

of the Environmental Protection Act,

Ill.

Rev.

Stat.

1985,

ch.

111—1/2,

par.

1041, provides

for appeal

of final

Orders

of the Board within

35 days.

The Rules

of the Supreme

Court

of Illinois establish filing requirements.

IT

IS SO ORDERED

I,

Dorothy

M. Gunn, Clerk

of the Illinois Pollution Control

Board, hereby certify

that the above Opinion and Order was

adopted

on the

...ftz

day of

—~c_~

,

1988,

by

a

voteof

7_o

•

/

Dorothy

NI. Gum,

Clerk

Illinois Pollution Control Board

89—30