ILLINOIS POLLUTION CO$TROL
BOARD
October 10, 1985
LANDFIC1L EMERGENCY ACTION
)
COMMITTEE, an unincorporated
)
hssociation,
)
)
Complainant,
v.
PCB 85—9
MCHENRY COUNTY SANITARY LANDFILL )
AND RECYCLING CENTER, INC., an )
Illinois Corporation,
)
)
Respondent. )
INTERIM ORDER OF THE BOARD (by 7. Anderson):
The proposal
This matter comes before the Board on the eight count
complaint filed January 23, 1985 by the Landfill Emergency Action
Committee (LEAC) against the McBenry County Sanitary Landfill and
Recycling Center, Inc. (MCSL). In general, the complaint charges
MCSL with improper operation of its sanitary landfill located in
Mclienry 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
members of the public were present, the parties presented a
‘Joint Stipulation of Facts and PropoSal for Relief~ 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 NCSL’s arrangements for closure and post—closure care of
the facility; this will be described in detail below.
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.
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—2—
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)
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
21(d)(2) of the Environmental Protection Act and of applicable
subsections of 35 Ill. Mm. 807.305.* Concerning these Counts,
the stipulation recites that:
‘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
21(d)(2) of the Act and 35 Ill. Mm. 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. Mm. 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 21(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. Mm. Code 807.302. The
parties agree 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.
66-16
‘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 2l(d)(2) of the Act and 35 Ill. Adm. Code 807.313.
The stipulation states:
‘The ZEPA 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
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).
Board Comment
The acceptability of the compliance plan, then, is the
primary issue for Board consideration, given the above factual
statements and the parties’ invitation to the Board to sake
findings of violation. 35 Ill. Adm. Code 807.605 ptovi’ies that
the Board:
‘may order modifications in permits to change the
type or amount of financial assurance pursuant to an
enforcement action
...
and may order a closure or
post—closure care plan modified, and order proceeds
from financial assurance applied to execution of
such plan.’
MCSL’s current permit outlining its closure, post—closure
care obligations is not a part of this record. The Board is
incapable of assessing the reasonableness of this proposed
compliance plan as required by Section 33(c) of the Act based on
the information supplied by the parties. As a general matter,
the Board notes that the parties have not adequately explained
the relationship of any violations to the compliance plan, and
66-17
have not provided other than the bare outlines of a program which
does not really specify what ‘compliance’ is.
More specifically, the first condition 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 parties have
provided no basis for their choice of Wis $30,000 figure. 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.’
Again, no basis is provided for the choice of 10 years as an
additional post—closure care period, or of $10,000 (or less) as
the sum to assure performance. Equally importantly, the nature
of that performance has not been specified, and removal of the
Agency’s oversight regarding the timing and amount of release of
funds pursuant to the Board’s performance bond regulations has
not been justified.
It does not appear to the Board, based on this record, that
the parties have fully considered the details of implementation
of their loosely drafted proposal; the Board suggests that this
may not be possible absent preparation of the revised cj.osure,
post—closure plan and draft language to be included in any
modified permit whose issuance the Board might order as a result
of this enforcement action. For instance, assuming $30,000 is to
be added to the Trust Funds, is Lt all to be deposited
immediately? Section 807.603 requires upgrading of financial
assurance under certain conditions; is the fund always to contain
$30,000 in excess of the cost estimate established pursuant to
the regulatory requirements? Is the additional ten year post—
closure period to be added on to any more stringent regulatory
requirements which the Board may in the future adopt? The
foregoing list of examples is not exhaustive of the details
which, in the absence of clear expression of the parties’ intent,
could become the subject of permit appeals embroiling the Agency
and the Board to no good effect.
The parties are therefore given 45 days in which to
supplement their proposed stipulation and settlement; failure to
do so will result in its rejection by the Board, and entry of an
order to proceed to hearing. Finally, as a matter of procedure,
the Board wishes to advise the parties as to the effect of Board
acceptance of any stipulated settlement to which the Board has
66-18
—
made amendments pursuant to the parties’ invitation.
The
Board
will, as is its practice, request the parties to certify their
acceptance of the amendment. In the event of failure to so
certify, hearing will be ordered to provide any litigated record
necessary
for a Board determination as well as appellate review.
IT IS SO ORDERED.
I, Dorothy K. Gunn, Clerk of the Illinois Pollution Control
Board hejeby certify thatjbe above Interim Order was adopted on
the /e’~ day of
~Z.4tti
,
1985, by a vote
of 7-~)
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
6649