ILLINOIS POLLUTION CONTROL BOARD

June

20, 1986

LANDFILL EMERGENCY ACTION

COMMITTEE,

an Unincorporated

Association,

&

ILLINOIS

)

ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Complainants,

v.

)

PCB 85-9

MCHENRY COUNTY SANITARY LANDFILL

)

AND RECYCLING CENTER,

INC.,

an

Illinois Corporation,

)

Respondent.

MICHAEL KUKLA

(COWLIN, UNGVARSKY, KUKLA, AND CURRAN) APPEARED ON

BEHALF OF THE LANDFILL EMERGENCY ACTION COMMITTEE,

AND,

JAMES

I.

RUBIN (BUTTER RUBIN,

NEWCOMER, SALTARELLI, AND BOYD)

AND

JAMES G. MILITELLO (MILITELLO,

ZANCK, AND COEN) APPEARED ON

BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J. Anderson):

This matter

comes before the Board on the eight count

complaint

filed January 23, 1985 by the Landfill Emergency Action

Committee

(LEAC) against

the McHenry County Sanitary Landfill and

Recycling Center,

Inc.

(MCSL).

In general,

the complaint charges

MCSL with improper operation of its sanitary landfill located in

Mcflenry County,

the allegations

being based

on inspection reports

prepared by the Illinois Environmental Protection Agency (Agency)

since 1974.

At a hearing held September

3,

1985,

at which

no

member~of the public were present,

the parties presented a

“Joint Stipulation of Facts

and Proposal for Relief’t,

which was

filed with

the Board September

10, 1985.

The Agency inspection

reports were attached thereto

as Exhibit

A.

The parties’ proposed stipulation recites that

it

is

presented

for the purpose of eliciting “findings

of fact and

conclusions of law from the Board,

along with the approval by the

Board of the compliance plan.” (Stip.,

p.

1)

The compliance

plan,

a response to the Count V leachate discharge allegations,

involves MCSL’s arrangements for closure and post—closure care of

the facility;

this will be described

in detail below.

However,

in

brief,

the stipulation requires the MCSL to add $30,000 to

its

post—closure care

fund.

At the end of the

3 year post—closure

period required by Board regulations,

MCSL is required

to leave

$10,000

(or any lesser remaining balance)

in

its post—closure

70-237

---

—2—

care trust

fund for an additional

10 years, with payouts

to be

made pursuant to Agency direction.

As to

a penalty proposal and amendment

of the terms

of the

settlement,

the parties agree

that:

“there

is

no

evidence

of

adverse

impact

on

the

environment,

no

penalty

other

than

that

described

above

is

warranted.

Nevertheless

the Board

is

free,

under

the

terms

of

this

stipulation,

to

make

such

findings

and

to

impose

such different

or

additional

relief

as

it

believes

is

necessary

and

appropriate.

Should

different

or

additional

relief

be

imposed

by

the

Board,

both

parties

reserve

the

right

to

challenge

the

reasonableness

of

such

relief

on

appeal.”

(Stip.,

15)

On November

21, 1985 the parties filed

a Supplemental Joint

Stipulation

in response

to an October 10,

1985 Interim Order

of

the Board identifying various areas

of Board concern concerning

the parties’

intentions

and the reasonableness of

the compliance

plan.

Inasmuch as the proposed stipulation would require actions

by the Agency, which had not heretofore been a party

to this

action,

by Order of April 24,

1986 the Board

on

its own motion

joined

the Agency as

a nominal party complainant consistent with

35

Ill. Adm. Code 103.121(c).

Pursuant

to that Order, on May 5,

1986, the Agency

filed comments, including

a statement of

acceptance

of the

role the other parties have proposed

it play

in

this proposed settlement,

to which MCSL filed response comments

of May 14.

The Complaint

All Counts except

for Count V have been addressed by the

parties

in fairly summary fashion; Count V will therefore be

discussed last.

Count

I of the Complaint alleges failure

to apply daily

cover

on

57 dates between 1974 and 1983;

Count

II

alleges failure

to apply intermediate cover

on

48 dates between 1976 and 1980;

and Count III alleges failure

to apply final

cover

on 14

occasions between

1976 and 1980, all

in violation of Section

2l(d)(2)

of the Environmental Protection Act and of

applicable

subsections

of

35

Ill. Adm.

807.305..*

Concerning

these Counts,

the stipulation recites that:

*

The Complaint cites

the pre—codified version of the Board’s

rules

as found

in old Chapters

7 and 9.

This Order refers to the

codified section numbers.

70-238

---

—3—

“Some

of

those

temporary deficiencies

resulted

from

inclement

weather,

while

others

were

caused

by

difficult

working

conditions

or

by

not

‘having

sufficient

men

and

equipment

on

the

site

at

all

items.

The number

of operators and the equipment

on

site now are adequate

to apply daily and intermediate

cover

as

required

and

to properly maintain the

final

cover on those portions of the site which are already

closed.”

(Stip.

7)

Count IV alleges failure to collect litter

at the end

of

22

working days between 1975 and 1983

in violation of Section

2l(d)(2)

of

the Act and

35

Ill.

Adin.

Code 807.306.

As

to this

Count,

the stipulation notes

that,

although litter was blown away

from

the working face of

the

landfill,

that litter was never

observed by the Agency blowing off—site

(Stip.,

8).

Count VI alleges failure to spread and compact refuse

on

June 25,

1982 in violation of Section 2l(d)(2)

of

the Act and

35

Ill.

Adrn.

Code 807.303(b).

Count VII alleges failure

to deposit

refuse at

the toe of

the fill on February

25, 1975 and March 27,

1979,

in violation of Section

2l(d)(2)

of the Act and 35

Ill.

Adm. Code 807.303(a).

The stipulation states that MCSL does not

believe that any specific changes

in its operation are necessary,

given

that only three such incidents were reported

in eleven

years

(Stip.,

9).

Count VIII alleges failure

“to otherwise comply” with permit

conditions on 16 occasions between 1975 and 1983,

in violation of

Section 2l(d)(2)

of the Act and

35

Ill.

Adin.

Code 807.302.

The

parties agree

that:

“These have each been corrected and were only part

of

the normal process of site development.

For example,

a portion

of the site would be closed,

the IEPA would

observe

that

the slope

on

a side

of the site was too

steep

and

MCSL

would

correct

it.

No

permit

deficiencies exist today.”

(Stip.,

11).

Count V alleges that MCSL caused or allowed

the discharge

of

leachate into the environment

so as

to cause or tend

to cause

water pollution on

29 dates between 1978 and 1983,

in violation

of Section 21(d)(2)

of the Act and 35 Ill.

Adin. Code 807.313.

The stipulation

states:

“The IEPA inspection reports disclose observations of

surface

leachate.

The

leachate

is

described

as

seeps,

flows

and

ponds.

None

of

the

leachate

has

ever

been

observed

leaving

the

site.

The

leachate

reported

by the

IEPA resulted either

from erosion

at

areas

of

the

site

not

completely

vegetated

or

the

fill

settling

in

closed

areas.

Both

of

these

problems

will

continue

to

occur

sporadically

until

the

site

is

entirely

closed

with

final

contours

and

70-239

---

—4—

complete

vegetation

in

place.

MCSL

regularly

inspects

the

site

and performs

remedial

maintenance

to correct

these

problems.

Because

of

the drainage

system

engineered

at

the

site

such

problems

are

contained and

the leachate

is channeled back into the

fill.

The

relief

agreed

upon

by. the

parties

and

described

below

is

intended

to

insure

that

erosion

and

settling

at

the

site

are

properly

and

finally

resolved.”

(Stip.,

10).

Based on this record,

the Board

finds that MCSL has violated

the Act and Board regulations as charged.

Given that MCSL had

taken earlier

steps

to address its operating violations,

and the

agreed lack of adverse impact beyond the boundaries of the site,

the Board agrees that imposition

of

a penalty at this

time would

not necessarily aid

in the enforcement of the Act and Board

regulations.

The Compliance Plan

In the Supplemental Stipulation, MCSL and LEAC explain that

the “compliance program deals exclusively with the

future”, as

LEAC

“has no evidence that anything at the site needs

to be

‘fixed’

to achieve compliance”.

The intent of these parties,

given

the fact that leachate seeps,

flows,

and ponds have

in the

past resulted from erosion or settling

at already—closed areas of

the site,

“is

an

increase

in the

funds guaranteed

to be available

to repair erosion and settling that occur during closure and the

years following closure.”

(Rev.

Stip.

p.

2,3).

The first condition of the compliance plan involves

a

$30,000 increase

in the amount of the existing

trust

fund to

$109,800, $79,800 being

the amount required

to satisfy the

Board’s regulations

35

Ill. Adm. Code 807.501 et

seq.

The second

condition proposed

is

that:

“regardless

of

the

length

of

time

covered

by

the

Trust

and

required

by

the

IEPA

pursuant

to

the

regulations

of

this

Board

for

post—closure

care,

3

years

after

the

closure

of

the

facility

MCSL

may

withdraw

all

funds

remaining

in

the

trust

account

except

for

the

sum

of

$10,000,

or

the

then existing

balance

if

less than $10,000

remains

in the account,

which shall remain

for an additional

10 years

(to the

13th

year’ following

closure),

under

the

same

terms

and conditions as earlier applicable.”

(Stip.

13)

In response

to queries by the Board,

the parties

to the

stipuLation indicated that the basis

for the choices of the

$30,000 amount and

10 year increase

in the post—closure care were

that each “had been selected by plaintiff and agreed

to by

Respondent”

(Rev.

Stip.

p.

3—4).

It

is not the parties’

intention that MCSL indefinitely maintain in its Trust Fund

$30 .000

in excess of

the amount required

by Board

regulations;

70-240

---

—5—

the $30,000

is intended to be

a one—time additional deposit

(Id.

p.

5).

Similarly,

the 10 year add—on

to the existing

3 year

regulatory post—closure care period is intended

to -be

a one—time

extension:

that

is,

if Board regulations should

in future

be

amended

to require post—closure care period of greater than three

years,

the added time period would not extend MCSL’s obligations

pursuant

to

the stipulation, which would still

end after

the 13th

year following closure

(Id.,

p.6).

Finally,

it is the parties’

intention that these additional

funds

in MCSL’s Trust Fund should

be disbursed as “specified by the IEPA...in writing”

in the same

manner

as are any other funds

in the Trust

Fund.

The Agency’s comments on the stipulation* are that it

“agrees with and accepts the role that the parties have proposed

for it”.

However,

the Agency has concerns about

the provision

that provides for,

at best, only an additional $10,000 figure

for

maintenance

of the site for

10 years,

and questions the

sufficiency of $1,000 per

year to assure adequate maintenance

of

a 40—acre

site.

The Agency additionally points out that ground—

monitoring costs

do not appear

to have been considered

in

calculating the $1,000 yearly amount.

In response, MCSL essentially states only that if:

“the

proposed

relief

is

inadequate

then

let

us

all

agree

to

forget

MCSL’s

offer

to

advance

community

interests

by

increasing

the

size

of

the

fund

and

start

from

scratch.

Anyone

who

wants

can

sue MCSL

and see

if they can justify imposition of any penalty

at

all.

Or

the

Board

can

rely

upon

the

Joint

Stipulation

and

substitute

some

other

penalty

for

that proposed

——

and MCSL will appeal

that penalty.”

(5—14—86 Comments, p.

3—4)

This proposed settlement and the comments made epitomize the

dilemma the Board increasingly encounters

in dealing with

stipulations:

the Board has a responsibility not to accept

the

parties’ proposed orders simply on the rationale that “this

is

what we have agreed”, but the

record is more often

than not

insufficient

for

the Board

to independently analyze those orders

for appropriateness of

the penalties/compliance plans.

In this

case,

the Board continues

to maintain its earlier reservations,

now

in part echoed by the Agency,

concerning

the efficacy of

this

*

The Board notes

the Agency’s objection

to its joinder as

a

complainant.

The Board is at

a loss

to understand the nature of

this objection, given that this action seeks to

impose additional

duties on Agency personnel for up

to a 10 year period.

The Board

continues to believe

it

is procedurally preferable to prevent

surprise

to all concerned by presenting

an opportunity for Agency

comments—by—right prior

to decision,

rather than

to issue

a

decision subject to a petition for leave

to intervene and request

to file comments

in the event

the Agency finds

the order binding

it and entered without its representation objectionable.

70.241

---

—6—

proposal.

However, given that the “compliance program”

is not

designed

to correct violations which the parties assert do not

now exist,

but

is instead

intended to ameliorate any which may

occur

in future,

the Board will struggle no further.

On balance,

the Board

feels

the best course of action here

is

to accept the

stipulation,

as clarified,

to accommodate

the parties’

desire

to

terminate

this litigation.

This acceptance

is not to be

construed

as any comment

upon, amendment

to,

or alteration of,

the Board’s financial assurance regulations,

or

as establishing

any other precedent.

Finally,

for the administrative convenience

of all

concerned,

the Order

as set forth below has been drafted

to set

forth

in

a unitary document,

and

in more specific language,

the

mechanics needed

to implement the parties’

intent as reflected in

the original and supplemental stipulations.

The Board believes

this

to be necessary, since

it appears that MCSL, the Agency, and

the Trustee must all execute

an instrument modifying the existing

Trust Agreement.

(See Supp. Stip.,

Exh.

A., Section 16—17.)

In

the event

that the language of this Order inadvertently

misconstrues or

fails

to fully capture the details of this plan

as envisioned by the parties,

the Board encourages submittal of

substitute language by way of a motion for

reconsideration.

This Opinion constitutes

the Board’s findings of

fact and

conclusions of

law in this matter.

ORDER

1.

The Board finds that Respondent McHenry County Sanitary

Landfill

and Recycling Center,

Inc.

(MCSL)

has violated Section

2l(d)(2)

of the Environmental Protection Act as well as 35 Ill.

Adm. Code Sections 807.302, 807.303(a,b), 807.305(a,b,c),

807.306,

and 807.313.

2.

Respondent shall comply with the terms and provisions

of the

Joint Stipulation of Facts and Proposal for Relief,

filed

September

10, 1985 and the Supplemental Joint Stipulation of

November 21,

1985, as more specifically articulated below:

a)

Within

45 days of the date

of this Order,

Respondent

shall deposit the amount of $30,000

into Trust Fund No.

23—30250,

held pu~rsuantto Trust Agreement by the Home State Bank

of

Crystal Lake,

as Trustee,

for MCSL,

the Grantor.

This $30,000

deposit

is

to be supplemental

to the $79,800

required

to be

deposited

in said Trust pursuant to the requirements of 35 Ill.

Adm. Code 807.501

et seq.,

as established

in Schedule A of

the

current Trust Agreement, which Agreement is incorporated by

refere.nce

as

if fully set forth herein.

b)

In the event that the amount of closure and post—closure

financial assurance

that Respondent

is required

to provide

pursuant to Illinois law and Board regulations may

in future be

increased to exceed $79,800,

Respondent

shall be authorized

to

70-242

---

—7—

cause all or any remaining portion of

this $30,000 to

be

obligated

for satisfaction of the increased financial assurance

requirement.

c)

Respondent

is ordered

to cause any modifications

to the

Trust Agreement necessary

to insure that the Trust Fund continues

as

long as any balance of

this $30,000 remains

in the Trust Fund

unexpended

or unobligated pursuant to subparagraph b) above,

but

in no event past the 13th year after closure,

irrespective of any

less stringent period

required by Illinois law or Board

regulations.

This 13—year life provision shall

not,

however,

supersede any more stringent requirements which may

in the future

be provided by law or

regulation.

d)

In

the event that,

three years after

the close

of the

facility, more than $10,000

of the $30,000 remains unexpended,

Respondent shall

be authorized

to withdraw any amounts

in excess

of $10,000.

Any lesser amount shall remain

in the Trust Fund.

e)

In

the event

that,

thirteen years after

the close of the

facility, any balance remains

in the Trust Fund, Respondent shall

be authorized

to withdraw any such remaining balance.

f)

During the life of

the Trust,

the Illinois Environmental

Protection Agency

(Agency) shall cause disbursement from the

Trust Fund of all

or any portion of this additional $30,000

consistent with

the other parties’ stipulation, Illinois

law,

and

Board regulations.

The Agency shall execute all written

agreements necessary to amend

the Trust Agreement consistent with

the above Opinion and Order.

IT

IS SO ORDERED.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board hereby certify that the abqve Opinion and Order was adopted

on the

~

day

of ________________________,

1986, by

a vote

of

7-C

~h.

/~~j

Dorothy

M.

Gunn,

Clerk

Illinois Pollution Control Board