ILLINOIS POLLUTION CONTROL BOARD
    October 23, 1986
    RICHARD W. TERMAAT,
    )
    Complainant,
    vs.
    )
    PCB 85—129
    MILTON ANDERSON, CITY OF
    )
    BELVIDERE, COUNTY OF BOONE,
    )
    AND THE BELVIDERE MUNICIPAL
    )
    LANDFILL NO. 2,
    )
    Respondents.
    KEVIN T. Mc CLAIN (IMMEL, ZELLE, OGREN AND Mc CLAIN), APPEARED ON
    BEHALF OF THE PETITIONER;
    ROGER T. RUSSELL, CITY ATTORNEY, APPEARED ON BEHALF OF THE CITY
    OF BELVIDERE, RESPONDENT; AND
    GERALD F. GRUBB, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF
    OF THE COUNTY OF BOONE, RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by J. Anderson):
    This matter comes before the Board on the August 26, 1985
    complaint brought by Richard W. Termaat (Termaat). Hearing was
    held on November 4, 1985.
    The one count complaint revolves around the “unit of local
    government” exemption from the performance bonds requirement in
    Section 21.1(a) of the Environmental Protection Act (Act), as
    more specifically enunciated in Board regulations 35 Ill. Adm.
    Code 807.601(a) and 807.602(b).
    The regulatory provisions read as follows:
    807.601 a) The financial assurance requirement does
    not apply to the State of Illinois, its
    agencies and institutions, or to any unit
    of local government; provided, however,
    that any other persons who conduct such a
    waste disposal operation on a site which
    may be owned or operated by such a
    government entity must provide financial
    assurance for closure and post—closure
    care of the site.
    73-400
    —2—
    807.602 b) For sites which are required to obtain
    financial assurance as of March 1, 1985,
    as provided in Section 807.601, financial
    assurance must be tendered to the Agency
    before March 1, 1985 in an amount equal
    to the cost estimate, which may be based
    on closure and post—closure care plans or
    on the formula of Section 807.624.
    Mr. Termaat, the complainant, alleges a violation of the Act
    and the underlying Board regulations because the Boone
    County(County)/City of Belvidere (City) owners of the Belvidere
    Municipal Landfill No. 2 (Landfill) do not “conduct any waste
    disposal operation”. Rather, Mr. Anderson, an independent
    contractor, is the operator who actually conducts the operation
    and thus, Termaat alleges, financial assurance for closure and
    post—closure care is required. The City/County and Mr. Anderson
    contend, in essence, that Mr. Anderson performs limited
    contractual services under the direct and ongoing control of the
    operator City/County and thus is not required to post financial
    assurance.
    Attached to the complaint are two letters: The first is a
    May 8, 1985 letter from the Illinois Environmental Protection
    Agency (Agency) to the City Attorney noting perceived ambiguity
    in the rule that might require the contractor to provide
    financial assurance.
    However, another letter from the Agency
    dated July 15, 1985 to the County State’s Attorney states the
    Agency’s conclusion that no “financial assurance documentation
    under Section 21.1 of the Act” need be provided.
    Mr. Termaat asserted that Mr. Anderson is an operator as
    defined under 37 Ill. Adm. Code 807.104. Section 807.104 states:
    “Operator” means a person who conducts a waste
    treatment,
    waste storage or wate (sic) disposal
    operation.
    The Board, in its
    opinion supporting the
    adoption of the
    Final Rules (R84—22(C), p. 23, November 21, 1985) states:
    Paragraph (a) (807.601(a) includes the local
    government exemption taken from Section 21.1(a) of
    the Act. The Board construes this exemption to
    apply only when the governmental unit is actually
    conducting waste disposal operations: that is, when
    the governmental unit is the “operator”. If the
    governmental unit is the “owner” of the site, but
    another person “conducts” waste disposal on the
    site, the other person must provide financial
    assurance for closure. A proviso has been added to
    state this expressely (R. 53, 64, 686, 782, 943).
    73-401
    —3—
    JCAR the Legislature’s Joint Committee on
    Administrative Rules considered this matter and
    did not object to the Board’s interpretation of the
    statute.
    The Landfill Operations
    The Landfill, more commonly called the County Farm Landfill,
    is jointly owned by the City/County. In 1981, Mr. Anderson was
    the successful bidder, as an independent contractor, to perform
    certain functions at the landfill for a monthly payment. The
    contract was extended yearly and included a five day cancellation
    clause upon performance failure following notice by the
    City/County.
    The last extension, from July 28, 1985 through
    November 30, 1986, contained an added provision that the
    City/County would pay for any extra financial assurance if so
    required by the Agency. (Pet. Exh. 1—3).
    The “Landfill—Site Operation” notice to bidders described
    the scope of work as:
    In general the Contractor will be required to
    furnish all equipment, labor, supplies and other
    items of expense necessary to perform all
    earthwork, compact and refuse, dispose of all
    landscape wastes, place intermediate and final
    cover, police the area and other items in
    accordance with these specifications. (Ibid)
    The contract then states:
    “The Contractor shall perform all work under the
    direction of the Owner and its authorized
    representative.”
    The contract specifications define “contractor” as
    “That person, firm or corporation with whom the
    Owner contracts to operate and maintain the City—
    County Landfill Site,” (Ibid).
    The Contract then outlines detailed specifications,
    including the items to be furnished by the Owner, and the
    responsibilities
    of the Contractor.
    At hearing, testimony was presented by Mr. Anderson and Mr.
    LeRoy Schroeder, the Chairman of the Boone County Board.
    Mr. Anderson testified that he has been an excavating
    contractor for 38 years.
    He described his duties and
    responsibilities, pursuant to the Contract, as follows: For a
    set monthly fee he supplies the equipment, supplies, labor, and
    liability and personal injury insurance; applies needed cover;
    73-402
    —4—
    controls litter and vectors; and maintains an unpaved road from
    the weigh—in scale to the fill area. He generally provides daily
    and intermediate cover with little or no direct supervision. He
    testified that the City Director of Public Works, who is on—site
    “every day or twice a week” (R. 55), determines any further
    lifts, final cover, height for final cover, where to fill, and
    when and what kind of grass to apply.
    The City/County opens the site each day, maintains the
    access road to the scale house, employs a person to perform
    weigh—ins and collect fees (unless otherwise billed directly from
    the City/County), provides cover and seeding materials, maintains
    the paved access road from the entrance to the scale house, sets
    rates, and pays all bills.
    Mr. Anderson pointed out
    that he has
    no lease, that he receives no income from the operation
    independent of his monthly fee, and that he has no
    interrelationships with the scale master’s operations or any
    other activity concerning the site.
    Mr. Schroeder, the County Board Chairman, testified that the
    City/County operates the site through a City/County coordinating
    committee (Committee) on which he serves as an ex officio member,
    and which is made up of Aldermen and County Board Members. The
    Committee meets monthly and set rates, collects fees, prepares
    contracts, pays bills, and reviews conditions at the site. Mr.
    Schoeder explained that the added provision in Mr. Anderson’s
    last contract extension concerning City/County assumption of the
    cost of any financial assurance was due to uncertainty, prior to
    receipt of the Agency’s second letter, about the applicability of
    the financial assurance requirement: the Committee wanted to
    avoid an “open—ended fee structure” (R. 66), as well as to
    indemnify Mr. Anderson.
    Mr. Schroeder stated that the Director of Public Works
    appears before the Committee at each meeting to report,
    concerning operations, as to cover costs, need for more land
    area, fencing, and employment for day to day operations.
    He
    stated that the provisions in the contract (see Ex. 2, p. 4)
    concerning contractor responsibility
    were intended to assure the
    City/County as operators that the contractor would comply with
    EPA regulations.
    Mr. Schroeder stated that it was the City/County position
    that they were fully responsible for the landfill. He pointed
    out that the City/County supplies funds for any landfill
    operations losses.
    BOARD CONCLUSIONS
    The Board finds that the City/County, not Mr. Anderson, is
    the operator of this site arid conducts the waste disposal
    operations within the meaning of the Act and Board regulations.
    73-403
    —5—
    As such, no “performance bond or other security” is required,
    pursuant to the exemption in Section 21.1(a) of the Act.
    The City/County, as permit—holder, has clearly assumed
    responsibility to assure proper closure and post—closure care of
    the site. The City/County uses the tipping fees and, if
    necessary, utilizes other public funds to pay for all site
    operations. Mr. Anderson is under the ongoing supervision of the
    City Director of Public Works; his discretion is limited in the
    performance of his contractual duties and is non—existent in
    other aspects of site operations. He is paid a set amount under
    a short term contract that is renewable at the sole discretion of
    the City/County. While terms like “operate” and “maintain” are
    used in the contract, they are used in the context of Mr.
    Anderson’s responsibilities, responsibilities which do not rise
    to the level of an operator conducting a waste disposal operation
    as anticipated in the Act and Board regulation. Therefore, the
    Board finds that the respondents have not violated the provisions
    of the Act or Board regulations as alleged.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The Board finds that Respondents Milton Anderson, City of
    Belvidere, County of Boone, and the Belvidere Municipal Landfill
    No. 2 have not violated the financial assurance requirements of
    Section 21.1(a) of the Environmental Protection Act or 35 Ill.
    Adm. Code 807.602(b) as alleged. The Board further finds that
    the “unit of local government” exemption contained in Section
    21.1(a) and 35 Ill. Adm. Code 807.601(a) relieves Respondents of
    these requirements. The docket is hereby closed.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Optnion and Order was
    adopted on the ~~~-‘(--day of
    ___________________,
    1986 by a
    vote of
    ~
    Dorothy N. c~nn,Clerk
    Illinois Pollution Control Board
    73-404

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