ILLINOIS POLLUTION CONTROL BOARD

March

 19, 1987

HILLVIEW FARMS FERTILIZER,

 INC.,

Petitioner,

v.

)

 PCB 86—18

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent,

and

PEOPLE OF THE STATE

 OF ILLINOIS,

)

Intervenors.

MR. JAMES

R.

 MORRIN AND MR. LEONARD KURFIRST,

 WILDMAN, HAROLD,

ALLEN

 & DIXON APPEARED ON BEHALF OF PETITIONERS;

MS HEIDI HANSON

 & MR.

 STEVE EWART APPEARED ON BEHALF OF

RESPONDENT; AND,

MR. MATTHEW DUNN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF

OF

 INTERVENORS.

OPINION AND ORDER OF THE BOARD

 (by J.D.

 Dumelle):

This matter comes before the Board upon a January

 31, 1986

permit appeal

 filed

 on behalf of Hiliview Farms Fertilizers,

 Inc.

(Hiliview)

 seeking reversal of the Illinois Environmental

Protection Agency’s

 (Agency) denial

 of Hillview’s application

to

renew and modify its existing permit

 for the land

 injection of

industrial non—hazardous sludge.

Hiliview owns and operates a facility which accepts and

stores non—hazardous industrial process sludge

 from certain

specified generators.

 Hiliview applies this sludge to

approximately 600

 acres* of farmland located

 in Richmond,

 McHenry

County,

 Illinois.

 This sludge

 is applied 10

to

 20 inches below

 This

 figure of 600 acres was supplied by Hillview in

its

petition for

 review.

 However,

 a dispute exists

 over

 the exact

amount of acres Hillview injects, and this figure

 is used for

descriptive purposes only and does not constitute

a

 finding by

the Board

on

 this point.

76-291

—2—

the surface of the ground by means of injection units.

 (Pet.

p.

2).

Procedural History

On September 25,

 1985,

 Hiliview filed with the Agency an

application consisting of

 a renewal and modification of its

existing permit which was due

 to expire on February

1,

 1986.

The

application requested to operate as in the past, but with an

increase

 in capacity from 17

 to 22 million gallons per year.

In

connection with this volume increase, Hillview also requested

permission to extend one of its existing feed lot tanks

 to add

approximately 2.1 million gallons to its existing storage

capacity.

 (Pet.

 pp. 3—4).

On December

3,

 1985,

 the Agency requested additional

information

 and Hiliview responded on December

6,

 1985.

On

December

11,

 1985,

 a public

 hearing was held

 at which numerous

members of the public testified as well as witnesses from

Hiliview.

 (Agency Record, Vol.

1).

 Hillview submitted

additional

 information

 in response

 to concerns expressed at the

public hearing.

 The record closed

 on December

20,

 1985.

 (Pet.

pp.

 4—5).

On January 17,

 1987,

 the Agency denied Hillview’s

application listing eight reasons

 for the denial.

 This appeal

followed

 (Id. p.

5).

 Hearings on Hiliview’s permit appeal were

held on August 28,

 29; September

8,

9;

 and October 27,

 28 and 31,

1986.

 Briefs were

 filed by Hiliview,

 the Attorney General

on

behalf of the People of

 Illinois and the Agency on December

19,

1986, January 26,

 1987 and January 27,

 1987,

 respectively.

Hillview filed

 a reply brief on February 11,

 1987.

Motion

 to Dismiss

The first matter

 to be

 addressed by the Board

 in this permit

appeal

 is the Attorney General’s Motion

 to Dismiss this appeal

which was denied with leave

 to renew the motion

 at hearing

by

Board Order

 dated March

14,

 1986.

 The motion was renewed at

hearing and the parties presented

 additional argument

 on this

motion at hearing.

 (R. pp.

 32—53).

 Prior

 to ruling on this

motion,

 the Board believes that

 it would be useful

 to outline the

procedural

 scenario of the instant appeal

as

 it relates

 to the

dismissal

 issue.

On January

17,

 1986,

 the Agency denied Hillview’s

application

 to renew and modify its existing operating

 permit.

(first application).

 On January 22,

 1986,

 Hillview reapplied

to

the Agency

 for renewal of its existing operating permit but did

not include

in

 its reapplication

 a request

 to modify the existing

permit.

 (second application).

 In other words,

 Hiliview

attempted

to

 renew as well

 as modify its existing permit

 in the

76-292

—3—

first application, and after denial

 of the first application,

Hiliview reapplied only

 for the renewal of its existing permit.

Then, on January 31,

 1986, Hiliview filed an appeal with the

Board concerning the first application.

The Attorney General and the Agency argue that the

procedural scenario of this permit appeal

 is identical

 to the

scenario

 in Caterpillar Tractor Co.

 v. Illinois Environmental

Protection Agency,

 54 PCB

 259, October

19,

 1983,

 and, since the

permit appeal

 in Caterpillar was dismissed this permit appeal

must also be dismissed.

 The procedural scenario

 in Caterpillar

and the instant appeal

 was: the Agency permit decision, the

reapplication and then,

the

 filing

 of the appeal.

 The Attorney

General and the Agency cite Caterpillar

 for the proposition that

when the

 same permit

 is the subject of

 a pending permit

application and a permit appeal, the appeal must be dismissed as

there

 is no

 final action by the Agency for the Board

 to review

under

 Section 40 of the Environmental Protection Act.

Caterpillar, at

 260.

 They go on

 to argue

 that application of

this proposition

 to the instant case requires the Board to

dismiss this appeal.

Hillview does not dispute that the procedural scenario

in

Caterpillar

 is identical

 to the instant appeal,

 rather, Hillview

argues that the facts of its appeal differ

 to such an extent that

it

 is distinguishable from Caterpillar.

 Hillview argues that the

second

 application

 is different from the first

 application in

that the second application does not request

 a modification of

the existing operating permit; the

 second application only seeks

renewal.

 Hillyiew goes on

 to argue that it has

 a right

 to appeal

the modification issue

 to the Board

and

 if the Board

 were

to

grant the motion

 to dismiss it would deprive Hiliview of its

right under Section 40(a)

 of the Act

 to appeal

 the Agency’s

decision.

As

to

the

 issue of modification of the existing operating

permit,

 the motion

 to dismiss

 is denied.

As

 to the issue of

renewal

 of the existing

 operating permit, the motion to dismiss

is granted as the Board

 finds the second application

 to be

identical to

 the renewal request

 in the

 first application and,

therefore, Caterpillar dictates that this portion of the appeal

be dismissed

 until

 the Agency has rendered

 a final decision on

this matter.*

As to the modification issue, Hillview is correct in arguing

that the facts of this appeal

 are distinguishable from those

in

Caterpillar.

 In Caterpillar,

 the Agency issued

 a permit

to

 The Board

 notes that the Agency denied Hillview’s renewal

request and Hillview has appealed that decision

 to the Board.

That action

 is docketed PCB

 86—70.

76-293

—4—

Caterpillar with conditions.

 Caterpillar requested the Agency to

reconsider

 its decision and also stated that

 it may file an

appeal of the decision.

 The Agency reopened the application, and

Caterpillar

 filed

 an appeal.

 The Agency filed

 a motion to

dismiss the appeal and

 the Board granted the motion stating that:

“Since

the

 same

 permit

is

the

 subject

of

a

pending

 permit

 application

and

 this appeal,

there was

not

 final action by the Agency

for

the

 Board

to

 review under

 Section 40

of

the

 Act.

 This

 appeal

is

 dismissed”

Caterpillar,

 54 PCB at

 260.

The appeal

 in Caterpillar focused on the permit conditions

on which

 the Agency had decided

 to reopen discussion.

 The issues

in the permit appeal were the same as those

 to be addressed

in

the reapplication.

 However,

 in the

 instant case,

 the issues

to

be

 addressed in the permit appeal

 and the reapplication

are

different in that Hillview wishes

 to appeal

 the modification

issues which are not part of the reapplication.

 The Board cannot

deprive Hillview of its right to appeal these

 issues.

The Board

 notes that the procedural scenario

 in the

 instant

appeal

 is identical to the scenario

 in Caterpillar.

 However,

Caterpillar cannot be read so broadly as the Attorney General

and

the Agency would suggest.

 Procedural

 identity does not trigger

dismissal of the appeal under Caterpillar,

 rather,

 identity of

the factual

 issues underlying

 the permit appeal

and

 the permit

reapplication triggers dismissal of the appeal

 under

Caterpillar.

 Thus,

 the portion of the appeal which deals with

the renewal

 of Hillview’s existing operating permit must be

dismissed as

 it presents factual

 issues which are identical

to

those which

 are the subject of a pending permit application.

As

stated previously,

 the Agency has rendered

 a decision on the

renewal application which is the subject of

 an appeal

 in PCB

 86—

70.

 Review of the Agency’s decision on the renewal application

will

 be addressed

 in that proceeding.

The only remaining

 issue

 to be

 addressed by the Board

is

Hiliview’s request

 to expand

 its waste storage area and its

request

 to accept additional sludge volume

 (i.e.,

the

modification portion of the permit application).

 The Agency

denied both requests

in

 its January 17 denial letter

 the reasons

for which are as

 follows:

1.

The

 Agency

has

 determined

 that

the

proposed

 waste

 storage pit expansion

is

a

new

 regional

 pollution

 control

facility

 pursuant

to

the

 Environmental

Protection Act

 under

 Section 3(X).

The

proposed

 waste

 storage pit

 represents

a

physical

 expansion

of

the

 facility

and

76-294

—5—

as

 such

is

 expanding

 its area currently

permitted

for

 storage.

 Pursuant

to

Section

 39(c)

of

the

 Environmental

Protection

Act

“...

no

 permit

for

the

development

or

 construction

of

a

new

regional

 pollution control

 facility may

be

 granted

by

the

 Agency

 unless

the

applicant

 submits

 proof

to

the

 Agency

that

the

 location

of

 said

 facility

has

been approved by the County Board of the

County

if

in

an

 unincorporated

area...”

 Therefore,

 you must obtain the

McHenry

 County

 Board

 approval

 prior

to

the Agency approving the construction of

the new storage pit.

2.

The

 Agency

has

 noted

in

 numerous

 site

visits

 during

the

 periods

 when

you

cannot apply on the farm fields that the

storage

 tanks

 have

 become

 nearly

completely full of sludge.

 As such, the

Agency

 cannot

 approve

 additional

 large

quantities

of

 sludge

 such

as

 Griffith

Laboratories (Chicago).

At

 hearing, Hillview made the following stipulation~

“Hiliview hereby

 stipulates

for

 purposes

of

this

 appeal

 only,

and

for

 no other

 purpose,

that

the

 Agency’s

 refusal

in

its

 permit

denial

 letter

 of January

17,

1986

 to approve

the

 receipt

 by Hillview

 of additional

 large

quantities

of

 sludge

was

not

 arbitrary

and

capricious

and

was

 justified

by

the

 record

before

the

 Agency at

the

 time

of

 the denial

——

 I guess the denial letter.”

(R.

 at 1494).

This stipulation resolves the issue set

 forth

 in paragraph

2

of the denial letter

in

 that it states that the Agency’s refusal

to approve the receipt of additional

 large quantities of sludge

was justified

 by the record.

 However,

 such

 a stipulation does

not resolve the issue presented

 in paragraph

 1 of the denial

letter

 and cannot, by itself, support affirmance of the Agency’s

January 17 decision.

 Therefore,

 the Board will address the issue

presented in paragraph

 1 of the denial letter.

The issue presented

 in the paragraph

 1 is whether Hillview’s

proposed waste storage pit expansion is a new regional pollution

control

 facility, as that term

 is defined

 in the Act, thereby

requiring

 local siting approval

 under Section 39.2

 of the Act

before

 the Agency can

 issue

 a permit for development of

 the new

storage

 pit.

 The Attorney General and

 the Agency argue

 that the

76-295

—6—

proposed expansion would

be

 an “area of expansion beyond the

boundary of a currently permitted regional pollution control

facility,”

 and,

 therefore, falls within the definition of a new

regional pollution control

 facility pursuant to Section 3(x)2

of

the Act, thereby triggering

 local

 review under Section 39.2 of

the Act.

Hillview, on the other

 hand, argues that the Agency had

previously determined that the construction of the

 additional

tankage would not cause

it

 to fall within the siting

 requirements

for

 new regional pollution control facilities and,

notwithstanding

 this determination, that the Second District

Appellate Court

 in M.I.G.

 Investments,

 Inc. et al.

v.

 Illinois

Environmental Protection Agency, et al.

___

 Ill. App.

3d

___,

No.

2—84—734,

 October

15,

 1986,

 rendered the question moot.

 Hillview

argues that in M.I.G.

 Investments

 the applicant sought

to

increase the volume of wastes to be deposited on its lands within

the geographical boundaries of its approved

 site, and

 the Court

held that such an increase did not trigger local

 siting approval

under Section 39.2 of the Act.

 Hillview argues that it seeks

to

increase the volume of waste

 to be

 stored on its lands within the

geographical boundaries of its own site, and therefore

the

holding

 in M.I.G.

 Investments controls.

A “regional pollution control facility”

 is defined

in

Section 3(x)

 of the Act as:

any

 waste

 storage

 site,

 sanitary

 landfill,

waste

 disposal

 site,

 waste

 transfer

 station

or

 waste

 incinerator

 that accepts waste

 from

or

 serves

an

 area

 that

 exceeds

or

 extends

over

the

 boundaries

of

any

 local

 general

purpose unit of government

...“

A “new regional

 pollution control

 facility”

 is defined

in the

 same Section

as:

1.

a

 regional

 pollution

 control

 facility

initially

 permitted

for

 development

or

construction after July 1,

 1981; or

2.

the

 area

of

 expansion

 beyond

the

boundary

of

a

 currently

 permitted

regional pollution control facility; or

3.

a

 permitted

 regional

 pollution

 control

facility

 requesting

 approval

to

 store,

dispose

of,

 transfer

or

 incinerate,

for

the first

 time,

 any special

 or hazardous

waste.

76-296

—7—

The focus of the current controversy is whether Hillview’s

proposed waste storage expansion falls with the definition of new

regional

pollution

facility

 in Section 3(x)2

 of the Act.

M.I.G.

 Investments

 is the most recent case interpreting

Section 3(x)2

 of the Act.

 In M.I.G.

 Investments, the applicant

submitted

 an application

 to the Agency

for

 a supplemental permit

to increase

 the maximum elevation of its landfill.

 The Agency

denied the application and the applicant appealed the decision

to

the Board.

 The only issue on appeal was whether the proposed

vertical

extension

existing

landfill

required

local

siting

approval.

The

Board

held

that

the

“area

expansion

beyond

the

boundary”

existing

facility

included

vertical

extensions

existing

landfills.

 Therefore,

 the applicant had

 to go through

the local

siting

requirement

pursuant

39.2

the

Act.

PCB

261, August

15,

 1985.

 The Court reversed the Board’s decision

and held

 that the definition of

 a new regional pollution control

facility set forth

 in Section 3(x)2

 of the Act does not include

vertical extension to existing landfills.

 M.I.G.

 Investments.,

slip op. at 12.

For

 the following reasons,

 the Board finds that Hillview’s

proposed waste storage pit expansion does not constitute

 a new

regional pollution control facility,

 and, therefore,

 does not

require

 local siting approval prior

 to the Agency issuing

a

permit for development of the waste storage pit expansion.

The Court

 in M.I.G.

 Investments was dealing with the

vertical expansion of an existing landfill.

 The Court pointed

out that increasing

 the vertical capacity of

 a landfill does not

involve use of any new land and does not alter

 the geographical

relationship of the

 fill to its neighbors,

 that Section 3(x)2 of

the Act applies only to lateral growth which involves

 a new area

outside the landfill’s existing boundaries and that the

legislature intended

 to limit local

 review primarily to

the

propriety of the location of the landfill,

 not its capacity.

M.I.G.

 Investments, slip op.

at

9.

While

 the facts

 in Hillview are not identical

to

 those

in

M.I.G.

 Investments, the rationale the Court applied

 to determine

whether

 local siting review is triggered

 is very useful.

The

Court determined that local

 review is triggered when a facility

seeks to

 expand laterally into new area outside its existing

boundaries

 in such a way that the geographical relationship of

the facility to

 its neighbors is altered.

 Such

 a “new”

 location

was

 intended

 to be submitted

 to local

 review.

Id.

Hillview seeks

 to expand laterally into

 a new area within

its existing boundaries.

 Hillview does not seek

 to expand beyond

its existing

 boundaries.

 In addition, even

 though expansion of

the

 storage pits does involve “new”

 land,

 such a “new” location

as this expansion will necessarily occupy does not alter

 to any

76.297

—8—

appreciable degree

 the geographical relationship of the storage

pits to the neighbors of Hillview’s existing facility.

Furthermore, the

 type of intra—facility modification which

Hillview seeks

 is not the type of modification the legislature

intended

 to be submitted

 to local review.

 The Board

 notes that

such

 an intra—facility expansion as requested here does not

pertain to location,

 rather, the expansion pertains to capacity

and, according to M.I.G.

 Investments, should not trigger local

review.

 However,

 in holding that Hiliview’s intra—facility

modification does not trigger local review under Section 39.2 of

the Act, the Board does not intend

 to exempt all intra—facility

 modifications

 from local review.

The Board

 notes that such an intra—facility expansion cannot

proceed without the necessary permits being issued by the

Agency.

The

 local community can,

 as was the case

 in Hiliview,

participate at the Agency level

 and voice their concerns about

such an expansion.

 Such concern about

 the operation of

an

existing facility is more appropriately the concern at the Agency

level

 than at the local

 county board

 level.

 Any problems with

the facility’s operation can be handled more effectively at the

Agency level through permit terms and conditions.

 The Court

stated

 in M.I.G.

 Investments that the legislature

 intended to

give local governments a

voice

landfill

decisions

which

affect

them.

However,

the

Court

concluded

that

such

control

not

unlimited

and

could

find

nothing

the

Act

legislative

intent

persuade

that

local

control

should

extended

beyond

matters

concerning

location.

Id.

Since

the

Board

has

determined

that

Hillview’s

proposed

waste

storage

expansion

does

not

constitute

new

regional

pollution

control

facility,

the

Board

reverses

the

Agency’s

decision

requiring

submission

local

siting

approval

prior

the

Agency

approving

the

 construction of the new storage pit and

orders

the

Agency

issue

permit

for

construction

the

new

storage

pit.

However,

this

decision

does

not

obviate

the

need

obtain

operating

permit

from

the

Agency

before

Hillview

can

begin

operating

the

new

storage

pit.

This

Opinion

constitutes

the

Board’s

findings

fact

and

conclusions

law

this

matter.

ORDER

The Illinois Environmental Protection Agency’s January 17,

 1986 denial of

 a development permit

 to Hillview Farms

Fertilizers,

 Inc.

 to construct

 a waste storage pit expansion is

hereby reversed and the Agency is ordered

 to issue such

 a permit

to Hillview Farms consistent with the views expressed

in

 this

Opinion.

76-298

—9—

Hillview Farm’s appeal

 of the Agency’s January 17,

1986

denial of a renewal of an operating permit

 for Hillview Farm’s

facility

 is hereby dismissed.

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

the

______________

day

 1987 by a vote

of

C-

Dorothy M( Gunn,

 Clerk

Illinois

Pollution

Control

Board

76.299