ILLINOIS

POLLUTION CONTROL BOARD

October

1,

1984

WASTE MANAGEMENT,

INC.,

)

)

Petitioner,

)

v.

)

PCB 84—45

PCB 84—61

ILLINOIS ENVIRONMENTAL

)

PCB 84-68

PROTECTION AGENCY,

)

(Consolidated)

)

Respondent.

DIXIE LEE LASWELL, D. KEVIN BLAIR, AND ANDREW

H.

PERELLIS

(ROOKS,

PITTS, AND POUST) APPEARED ON BEHALF OF PETITIONER;

AND

ROBERT

E. DAVEY

AND

FINIS

E. WILLIAMS, ASSISTANT ATTORNEY’S

GENERAL, APPEARED ON BEHALF OF RESPONDENT.

OPINION AND’ORDER OF THE

BOARD

(by J.

Anderson):

These consolidated appeals concern permits for which Waste

Management,

Inc.

(WMI)

applied to the Illinois Environmental

Protection Agency

(Agency) regarding operations at its Environ-

mental SaUitary Landfill,

Inc.

(ESL)

site located in Elmwood,

Illinois.

PCB 84—45,

filed April

9,

1984,

is an appeal of various

conditions in Permit No.

1984—16—SP issued March

2,

1984.

~2his

permit relates to installation and operation of

a 46 well

groundwater monitoring program.

PCB 84—61,

filed May

25,

1984,

is an appeal

of the Agency’s April 20,

1984 denial of

a permit to

operate a new trench at the site, Trench 11, which was designed

and constructed pirsuant to a development permit for disposal of

hazardous waste.

PCB 84—68,

filed June

4,

1984,

is an appeal

of

the Agency’s April

30,

1984 denial of 599 supplemental permits to

dispose of various waste streams at the site,

specifically in

Trench 11.

These cases were consolidated for hearing by the

Board on June

29,

1984.

Discovery in the action was extensive, prior

to initiation

of nine days of hearing which concluded September

7,

1984.

The

record in this case,

which was filed with the Board September 10,

1984, consists of slightly over 2,000 pages of transcript, ten

12” x

L6”

banker’s boxes of documents,

and briefs filed by WMI,

the Agency,

and several citizens.

This case is being decided on

the last day of the statutory decision period as extended by WMI.

The Board must note that this deadline has been extended by WMI

80-173

---

—2—

reluctantly

and

only

for

short periods of

time,

as

the

site

has

had no disposal capacity for

“some

months before” January

19,

1984

(R.

1409), resulting

in estimated revenue losses of

$20,000/week

(Pet.

Emergency Motion for Sanctions,

p.

1,

July

9,

1984).

PENDING

MOTIONS

Pending

are

several preliminary matters.

The Agency’s

motion to file brief instanter is granted,

as the filing delay

has

not

seriously

inconvenienced

the Board,

The Agency’s motion

to

cite

supplemental

authority

is

granted,

as

the

recent

September

6,

1984

appellate

court

opinion

involved

is

relevant

and

would

have

been

discussed

by

the

Board

even

had

each

party

not

kindly

provided

a

copy

to

the

Board.

On

September

10,

1984,

Waste

Management

moved

the

Board

to

vacate

the

August

31

verbal

order

of

its

Hearing

Officer

allowing

intervenor’s

status

to

Gisela

Topolski,

Sherry

Artis,

Mabel

Brockett,

Norma

T.

Rourke,

Robert

Whitler,

Robin

Mc

Williams, Lesley

R. Marr,

Sheryl

L.

Sadowski,

and

Judy

Garthus

“on

a

briefs

only”

basis

(R.

1139—1152).

These

citizens

made

no

objection

to

intervention

on

this

basis,

and

the

Agency,

by

the

Attorney

General,

voiced

lack

of

objection.

The

Hearing

Officer’s

August

31

order

was

a

reversal

of

a

decision

he

made

when

hearings

commenced

August

27,

denying

intervention

on

the

grounds

that

neither

he

nor

the

parties had

previously

received

petitions

to

intervene2

and

that

untimely

intervention would prejudice the parties

(P..

17-23),

WMI’s objections to intervention are that:

(1) intervention

in a permit appeal is not authorized by Sections 39(a),

40

and

61

of the Illinois Environmental Protection Act (IlL~Rev,

Stat,

ch.

111½,

SS1001 et seq.)

(Act),

or by

35

Ill.

Adm. Code Part

105,

(2) the intervenors would not be “adversely

affected” because

they

do

not

share

the

same groundwater system as ESL and live on

the

other

side of the river,

(3) the petitions were filed.

untimely and improperly

in contravention of the 48

hour

pre—hearing notice requirements of

35

Ill. Adm. Code

103.142,

and

(4) denial of intervention would not harm the citizens,

as

their

right to present oral and written testimony is clearly stated in

Sections 40(a)(1) and 32 of the Act,

and 35

Ill. Mm.

Code

103.203.

On September 18,

1984 Norma Rourke filed a response

in

opposition, which response has been considered by the Board

since

WMI’s

motion was filed on the Board’s filing cut--off

deadline~.

Mrs. Rourke in essence argues that any procedural irregularities

should be waived, that the intervenors are “adversely affected”

because property values “are lowered badly

.

.

because of the

proximity to a hazardous waste landfill,” and that these citizens

have been “watch-dogging” ESL since 1979.

60-174

---

The Board notes that some petitions to intervene were filed

with the Board prior

to hearing, specifically on August

15

(Rourke),

21 (Whitler),

23

(Mc Williams),

24

(Marr),

The Board

al

so

notes

that statements and

in. some cases exhibits were pre-

sented by citizens Topoiski

(Group Exh,

1 with 21 attachments),

Rourke

(Rourke Exh,

1-2), Whitler,

the Ruettigers

(Ruettiger

Exh.

1), Garthus,

Lembcke,

Marr,

and Kennedy,

and that briefs were

filed by Topoiski, the Ruettigers,

Rourke,

and Marr.

As a

practical matter, under the hearing officer’s “briefs only, no

cross—examination” rule,

at hearing the citizens gained no rights

by being named “intervenors” which they did not otherwise have.

The intervention question,

then,

involves whether the citizens by

right may initiate or participate in the anticipated

appeal of

this case.

WMI’s argument that the Board

lacks authority to allow

intervention in a permit appeal case is initially premised on the

fact that Sections 39(a),

40 and 41 of the Act provide no right

of intervention,

WMI notes that the legislature has expressly

provided intervention rights under Section 39.3(d) to citizens at

the Agency hearing level concerning permit applications for

initial development of new regional pollution control facilities,

or

modification

of development permits to allow first time

disposal

of

hazardous

wastes,

WMI contends that

a similar right

under Sections 39(a),

40

and

41 of the Act cannot

“be

lightly

implied”

(WMI motion, p.3).

As to the Board’s regulations, WMI observes that no right of

intervention is expressly provided in Part

105,

although such

rights are expressly provjded in Section 103.142 in enforcement

cases,

Section 104,141 in variance cases,

and Section 103.202(a)

in artificial cooling lake demonstration cases,

While Section

105.102(a)(6) provides that permit appeal proceedings are

controlled by the rules in Part 103

(enforcement proceedings),

WMI alleges that the Board is prohibited from construing this

provision as applicable in this context,

on the basis of the

Supreme Court’s ruling in ~

fill

Inc. v.

PCB,

74

Ill,

2d 541,

387 N.E. 2d 258

(1978),

Landfill involved a challenge to a Board

procedural rule authorizing third party appeals of granted

permits.

The court invalidated this rule,

finding that the

participation of private persons to effect the purposes of the

Act is via the citizens’ right to bring enforcement cases under

Section 31(a) of the Act, rather than by participation as parties

in Sections 39(a)-40 permit appeal proceedings.

In the words of

the court,

the “statutorily established mechanism for persons not

directly involved in the permit application process to protect

their interests

,

,

,

is

Section 31(a)

which

authorizes

citizens’s complaints against alleged violators of the Act

.

.

74

Ill.

2d at 559,

The Board historically has been liberal in its allowance of

intervention rights,

in fact having previously allowed

60.

---

—4—

intervention in the case of

a permit granted for development of

a

sanitary landfill, Hamman v.

IEPA,

PCB 80—153,

40/PCB/521, Order

of February

19, 1981,

The Board’s November 19,

1981 Supplemental

Opinion and Order

in this action,

44 PCB 753, was the subject of

an appeal brought by one of the intervenors,

Mathers v.

PCB,

107

Ill,

3d

729,

438 N.E.

2d 213

(1982),

While the Third District

upheld the intervention over Hamman’s challenge on other grounds,

the Board~sauthority to allow intervention was not

at issue,

the

primary issue being whether the intervenors’

were “adversely

affected”.

Thus, the Mathers case provides no guidance here on

the authority question,*

The Board observes that

in this case,

the citizens support

the Agency action rather than opposing it as was their posture in

Landfill.

Nonetheless, the Board must find Landfill controlling

in this area,

The Board recognizes that the legislature has

provided

special third party

appeal rights to those opposing

issuance of “RCRA permits”

(~S40(b)and 3(vv), c.f.

§39,2(b)

granting similar rights regarding local government~sgrant of

site location suitability approval), but these

are not such

permits (see infra,

p.13).

In the light of the strong admonition

of Landfill,

and lack of explicit statutory authority or explicit

Board regulation

allowing intervention, the hearing officer~s

ruling

is

vacated,

The Board

has, however,

fully considered the

oral

testimony,

exhibits,

and briefs submitted by the citizens as

autorized

and required

by Sections 40(a)(1)

and 32 of the Act,

and

35

Ill. Mm, Code 103,203.

No

further challenges

were

made

in the briefs

to

any

other

hearing officer

rulings,

although objections to some

were

pre-

served

on

the

hearing record.

In its review of this voluminous

transcript the Board finds no evidentiary rulings which mandate

reversal,

The Board wishes

to express its appreciation for the

unusually fine job done by its hearing officer in moving this

proceeding along at a swift, but orderly and fair,

pace.

The final

preliminary matter is WMI’s renewal

in its brief

(p.

23—24)

of its oral motion at hearing for

a ruling that the

Agency has defaulted this action due to irregularities in and

delay concerning the filing of the permit appeal record as

prescribed in 35

Ill.

Adm,

Code 105,102(a)(4).

The

Board

notes that the permit record

in this case is

voluminous,

consisting of five boxes of paper, bound only by

*The Board would, however, find that the citizens’ concerns

for their property values and groundwater

(see generally

R.1789—1813,

1887—1914,

and Ruettiger Brief p,3,

Marr Brief,

p.1)

provide

as sufficient a showing

of

adverse effect as the concerns

for

inadequacy of roads and contamination of wells in Mathers,

60~476

---

rubber

bands

and

paperclips,

and

bearing

“Bates~ number

stamps

with

several

gaps

in the numbering sequence.

The

permit

record

“dribbled in” over the course of the summer, pursuant to orders

granting leave to supplement in order to

insure

that

the

Board

was reviewing all

relevant

documents,

WMI’s

current

motion

additionally

recites

that

the permit

record did

not

contain

add~.tional

information

received

by

the

Agency

and which was

or

should

have

been

relevant

and

material

to

its decision,

The omissions included,

among other things,

several

quarters of groundwater monitoring data showing no contamination

which the

Agency

stipulated it had received, but had indeed

failed to include in the permit record,

(R.

885, 961),

The

Board

cannot

condone

the sloppy manner in which the Agency has

handled

its

files

and paper

in this case,

However,

in

a case

such as this involving hazardous waste and groundwater

monitoring,

as

a

matter

of good government the Board will not

find

that

this

inefficiency

has

resulted

in a default which would

preclude

review

of

this

issue on

the

merits.

THE

WITNESSES

Twenty

witnesses

were

called by the parties,

some of whom

also testified as

adverse

witnessses.

To aid

in orderly pre-

sentation

of the facts of this case,

the witnesses are listed

below

with

a

brief

description of their qualifications,

and where

not

obvious,

their

relation

to the permit issues,

Gary

Dietrich

President, Clemont Associates

—

former

director

of the office of

solid waste U.S.

EPA

who managed and supervised writing of federal

RCRA regulations

David M. Hendron

Vice

President

and

Senior

Associate,

Woodward

-

Clyde

Consultants

Dr.

Yaron M.

Sternberg

Professor of Civil Engineering and University

of Maryland,

Director

of

International Rural

Water Resources Development Laboratory

—

Consultant

for

Will County Environmental Network

since

1982

Dr.

Ian Christopher Nisbet

Vice

President

and

principal

science

advisor,

Clemont

Associates

-

consultant

for

hearing

purposes

in

area of risk assessment

Robert G, Kuykendall

Manager,

Division

of

Land

Pollution

Control,

IEPA

60477

---

Lawrence

W.

Eastep

Manager,

Permit

Section,

Division

of

Land

Pollution

Control,

IEPA

Harry

A.

Chappel

Manager,

Facilities

Permitting

Unit,

Division

of

Land

Pollution

Control,

IEPA

Monte

Nienkerk

Groundwater

Advisor,

Division

of

Land

Pollution

Control,

IEPA

Linda Kissinger

Permit

Reviewer,

Division

of

Land

Pollution

Control,

IEPA

Mark A.

Haney

Manager, Facilities Compliance Unit,

Division

of

Land

Pollution

Control,

IEPA

David

Favero

Employee,

Compliance

Monitoring

Section,

Division

of

Land

Pollution

Control,

IEPA

Stanley

A.

Walczynski

Professional

engineer,

Environmental

Management

Department,

Chemical

Waste

Management

Dr. Don L. Warner

Dean

of

the

School

of

Mines

and

Metallurgy

and

Professor

of

Geological

Engineering

at

the

University

of

Missouri

—

Rolla

—

consultant

retained

by

Attorney

General

for

hearing

purpose~

Sherry Otto

Geologist,

Manager,

Drill

Regional

Unit,

Division

of

Land

Pollution

Control,

IEPA

Kevin Pierard

former

Environmental

Protection

Specialist

and

Groundwater

Monitoring

Coordinator,

Division of Land Pollution Control,

IEPA

John

Hurley

Manager,

Organic

Laboratory,

Division

of

Land

Pollution

Control,

IEPA

Kathleen Kozack

Investigator, Environmental Control Division,

Office of the Illinois Attorney General

-

prepared

Resp.

Exh.

40

for

hearing

Dr.

Daniel

Hryhorczuk

Head

of

Clinical

Toxicology

Section

Division

of Occupational Medicine, Cook County

Hospital,

Assistant

Professor

of

Environmental

Health

and

Epidemiology,

University

of

Illinois,

School

of

Public

Health

-

consultant

retained

by

Attorney

General

for

hearing

purposes

Craig

Liska

Regional

Groundwater

Monitoring

Coordinator,

Division

of

Land

Pollution

Control,

IEPA

80-178

---

Walter

Barber

Vice

President

for

Environmental

Management,

Chemical

Waste

Management,

and

formerly

with

the

U.S.

EPA

where

his

most

recent

position

was

as

Director

of

the

Office

of

Air

Quality

Planning

and

Standards.

PERMIT

CHRONOLOGY*

The ESL site consists of about 260 acres located southwest

of Laraway and

Patterson

Roads

in

Will

County.

This

location

is

southeast of the

DesPlaines

River

and

about

2.5

miles

southwest

of the City of Joliet.

The northwestern approximately 160 acres

is the currently

permitted

operations

area,

containing

a

municipal

refuse

disposal

area

to

the

west

and

the

hazardous

waste and other operations to the east and north,

The

southeastern area is a proposed expansion area

(Pet.

Exh,

5,

p.

1) but was denied

local

site

location

suitability

approval

by

Will County pursuant

to

Section

39.2,

Since the site’s

acquisition

by

Waste

Management

in

1973

(Resp.

Exh.

22,

p.

01666),

the

site

has

received

numerous

permits

for various disposal

and

other

activities

(summarized

through

1981 in Resp,

Exh,

21,

p.

01223—01230).

The

following

gleanings

from

the general

permit

history

are

thought

to

have

particular

relevance as general

background.

Permits

for

Trenches

1—10,

in

which hazardous waste

has

been

disposed,

called

for

the trenches

to

be lined with in

situ

clay

soil;

the

trenches

were

constructed

in this manner as

required.

The

original

site

development

permit

had called for installation

of

a

subsurface

leachate

collection

system,

some portion of which was installed before the

system

was

made “obsolete”

by

issuance

of

the

first

permit

in

1978

for

“secure trench disposal”

of

liquid

wastes

in

drums,

Apparently

pursuant

to

the

original

permit

and

a

1978

supplemental permit,

a “G series” of

monitoring

wells

had

been

installed.

(Resp,

Exh,

21,

p, 00938.)

A

“P series”

of wells

were installed in December 1979

and January 1980,

using a then

common practice of using solvent glue on the well joints

(Res.

Exh, 8).

*Respondent~sExhibits 21-25 were introduced to,

apparently,

provide the Board with a chronological compilation of the more

important documents

in

the

permit

record,

The

documents

are

not

chronological,

are

often

duplicative,

are

often

illegible,

and

finally are not filed in any numerical

sequence,

To the extent

that the Board’s attempt to give

an overview of the site’s permit

history is somewhat vague

prior

to

the

time

of

events immediately

surrounding these permit appeals, this is attributable to the

quality of the record and the shortness of the Board’s review

time.

---

—8—

The monitoring

wells,

as other facets of the

site,

were

scrutinized

for compliance

with the USEPA’s draft regulations to

implement the Resource

Conservation and Recovery

Act of 1976

(42

U.S.C~ §S6901—6987))

(RCRA Act)

by Woodward—Clyde Consultants,

The

May,

1980

study

found

that

several

improvements

were needed,

including

improvement

in

the

locations of the wells in

the

monitoring

system

(Pet,

Exh,

4,

esp.

p.

15), hut

that the site

was acceptable

for

design

and operation of

a hazardous waste

facility.

Pursuant to this study

and other work,

in

the

meantime

a permit

was

applied for and received

in May, 1982

to modify

and

relocate some monitoring wells,

as

welL

as to modify testing

t.o

comply

with

RCRA requirements

(Resp.

Exh.

22,

p.

01251—02303),

No

further

supplemental

permits

with monitoring conditions appear

to

have

been

issued

between

the

May,

1982

permit

and

the

permit

which is the subject

of the

appeal

in

PCB

84—45.

In

December,

1982,

samples from monitor

well

G105

showed

the

presence—-barely

over

the

detection

limit-—of

trichloroethylene,

at

a level

the

Agency

at

the

time

stated could he caused by

a

sampling

or

laboratory

error

(Pet,

Exh. 28).

These reports

raised Agency and

citizen concerns, triggering a major

focus on

groundwater and site

geology issues,

At

some

point

in

the

spring

of

1983,

Mr.

Kuykendall

advised

WMI

that

the

Agency

was

placing

an

“administrative

freeze”

on

further

issuance

of

supplemental

waste

stream

authorizations

for

the

ESL

site

(R,

827),*

Waste

Management

withdrew

its

applications

as

a

result of this “freeze”.

Several

Agency

concerns were outlined

in

Mr.

Kuykendall’s

“letter

of

concerns”

dated April

25,

1983

(Resp.

Exh.

13).

Specifically,

the

Agency

asked

Waste

Management

to

perform

certain

geologic

and

hydrogeologic

studies

for

the

purpose

of

developing

a

new

groundwater

monitoring

system

(R.

828-33).

Mr.

Kuykendall

also

requested

that

Agency

personnel

be

in

attendance

when

these

studies

were

performed.

Finally,

Mr.

Kuykendall

instructed

WMI

to

apply

for

a

permit

once

the

new monitoring well

system

was

designed

(Reep.

Exh,

13).

On

April

27,

1983,

Waste

Management

met

with

Mr.

Kuykendall,

Mr.

Harry

Chappel,

Mr. Monte

Nienkirk,

Ms.

Sherri

Otto

and

other

Agency

employees

(R.

1379).

During

the

course

of

this

meeting,

the topic of discussion

was

the

concerns

expressed

in

Kuykendall’s April

25,

1983

letter,

and it was decided

that

further study would be done

(P..

1379),

At

the

time, the Agency

acknowledged WMI’s application

for

a development permit for

Trench 11 (formerly Trenches 11

and 12).

(Pet.

Exh.

24.)

*Nowhere in the Act

is

a freeze on decisionmaking authorized,

It in fact is contrary

to

the

mandate

of Section 39, requiring

a

decision to issue

or deny

a permit within

a time

certain,

In like

fashion,

a Board “freeze” on decisionmaking in these complex permit

appeals would be contrary to Section 40.

80-180

---

On

May

17,

1983

the

Agency granted

the

development

permit

for

Trench

21

~Pet,

Exh.

24’,

The

develoo~ent

permit

specified

thet

the

trench

must

~eve

at

least.

10

feet

of

clay

in

the

bottom

and sidewalls,

with a mLnutum two

feet

of

ci ~

being

removed

and

renlaced

in recompacted form

(Pet.

Exh..

24).

The

development

permit also specified

tnat.

t,he

trench

contain

a

synthetic

liner

of

60

mil

high

density

pOiy~thylenC

synthetic

liner

(HDPE),

Because

a

synthetic

:iiter

was

recuired,

the

development

permit

contained

no

speci.f:~cafion

for

maximum

nermeafility

of

the

underi’~inq

clay.

hr~’

tr~uth

was

subsequar.W~v installed

(R,

1391. :~.

On ~hil~-

21,

:~:;

a

meet~nq was

held

between

WMI,

repre~

sentat:Lves

of

Woodward-Clyde

and

the

EPA.

The

purpose

of

th~

meeting

was

to

discuss

the

results

of

the

qeological

studies

requested

by

the

Agency

(R.

1380—81).

The

Anenc.y

asked

that

sore

additional

work

he

performed.

This

follow--up

was

performed

and.

the

July,

1983

Woodward—Clyde

report

was

prepared

(Pet~

Exh.

On

July

12,

19~3,

Mr.

Walczynski

forwarded

WMI’s

application

for

an

operating

permit

for

Trench

11

to

the

agency

for

processing

(Pet,

Ext.

.2;

R,

1383).

Theraai.~er

the

Agency

erkfi.

that

the

application

he

withdrawn,

and

this

request

was

accomplished

by

letter

dated July

27,

1983

rR,

i385-~86; Pet.

fib,

36).

in the

meantime, ESL’s disposal

capacity

was

dwindling

as

the

only

active

disposal

unit,

Trench

10,

was

filling

up.

~

On August

4,

1983,

1’~NI

attended

a

pubi.Lc

meeting

at

th~:

Holiday

inn

in

Joliet

~R,

1389).

By

this

time

Dr.

S~.ernbena oa~

bean

retained

by

the

Will

County

Environmental

Network,

a

cjtiZeflS

group,

at

Waste

~anagerftent’s

expense

(R,

507).

The

Woodward~-Clyde report

was

officially

presented

to

the

pubiic

~R.

1388),

and

comments

were

offered.

At

this

meeting

Mr.

Kuyeidefi

then

stated

that

~4I

must

install

a

new

system

of

monitoring

wells

before

the

Trench

ii

permit

would

:Lssue

(H,

1390).

On

August

17,

the

Agency

sampled

the

P

series

wells.

Laboratory

results

dated

August

19

showed

the

presence

of

tetrachloroethylene

in Well P1 and dichlorof~Luormethanein ~~ell

P

5.

*Some

activity

not,

specifically

related

to

state

permifi

also

commenced

in

this

period.

A

groundwater

assessment

plan

(Resp.

Exh.

32)

was

submitted

to

the

Agency

in

June,

1983,

ani

amended

September,

1983.

(The

submittal

of

the

plan

was

to

satisfy

requirements

of

35

III.

Mm.

Code

Part

725,

Subpart

F

interim

status

groundwater

monitoring

requirements.)

As

a

result

of

a

communication

regarding

cited

deficiencies

(Resp.

Exh.

3o--3:L,~,

a

revised

plan

was

submitted

in

November,

1983

(with

an

annual

report

being

submitted

on

the

1983

calendar

year’s

activities

on

1~pril

9,

1984)

(Resp.

Exh,

32—33),

---

—10—

During the

following

months

further

study

and.

oermeability

testing was performed

by

Woodward

Clyde

in cooperation with the

Agency~sMonte Nienkirk

and

Sherri

Otto

(H.

151,

173,

231,

1395).

On

December

8,

1983

WMI

again met

with

the

Agency,

this

time

to discuss the latest Woodward-Clyde study results.

This study,

referred

to

as

the

“Confirmation

Study”

(Pet,

Exh,

6,

7)

confirmed the previous

results

submitted to the Agency in July

of

1983.

Several questions were posed

by

the

Agency

and

were

answered

by

Woodward~Clyde and

Dr.

Sternberg

(H.

400).

The

proposed

new

monitoring

well

network

was

also

presented

(H.

231).

The

network

proposed

consisted

of

forty-six

wells

spaced

approximately

185

feet

apart

(Resp.

Exh,

2,

Pet.

Exh.

6,

7).

The spacing

and

number

of wells was based on a computer

model designed to detect

a “worst

case”

“pinpoint”

leak

fifty

feet from the waste disposal boundary

(P..

225,

426,

427,

Pet.

Exh.

6,

7).

On

December

28,

1983 WMI

submitted

two

permit

applications

(H.

1402,

Pet,

Exh,

37,

38).

The

first

was

the

application

for

a

groundwater monitoring permit required by Mr.

Kuykendall

in

his letter

of

April

25,

1983

(R.

1404,

Resp.

Exh.

13).

The

second was an application for the operating permit for Trench 11.

At this point in time the disposal activities at ESL had ceased,

as Trench 10,

the last disposal unit in operation, had been

filled

(R.

1409),

On January 10,

the Agency notified WMI that it

considered the Trench 11 application incomplete

(Pet,

Exh,

39).

On February 15,

1984 the Agency forwarded

a draft ground-

water monitoring

permit

to

WNI

for comment

(Pet.

Exh,

27,

Resp.

Exh.

16).

Various discussions were

had

of permit conditions.

On March

2,

1984 the Agency issued the groundwater

monitoring permit

(Pet.

Exh,

1).

WMI also re—applied. for an

operating permit for Trench 11.

Installation of the 46

monitoring

wells was completed and certified to the Agency

April

2

(H,

952,

Pet,

Exh,

23).

On

March

30,

1984

WMI

wrote

Mr.

Lawrence

Eastep

questioning

whether

more

information was needed before

an operating permit

would

be

issued

(Pet.

Exh,

22),

At hearing

Mr.

Eastep

acknow-

ledged

receipt

of the letter, but he testified that he never made

a

specific

response

thereto

(P..

956).

The

next

Agency

action

was

its

denial

of

the Trench 11

operating

permit

on

April

20,

and

wastestream authorizations “frozen” since spring 1983 on April

30

1984.

THE ACT

AND

THE REGULATORY FRAMEWORK

This appeal raises several

substantial

issues concerning the

inter-relationship

of

the

Illinois

Environmental

Protection

Act,

60-182

---

—11—

the RCRA Act, the federal RCRA regulations, the Board’s

“identical in

substance”

RCRA

regulations,

and the Board’s

Solid

Waste regulations

which

pre~existed

RCRA.

Exposition of the

relevant

existing

statutory

and

regulatory

framework will enhance

presentation

of the parties’ arguments in this matter,

Title

V

of

the

Illinois

Environmental

Protection

Act

has,

since

its

inception

in

1970,

established

a

regulatory

and

per-

mitting

system for

the

disposal

of

waste,*

Under

the

scheme

of

the

Act,

the

Board

is

charged

in

Section

5(b)

to

“determine,

define,

and

implement

the

environmental

control

standards

applicable

in

the

State

.

.

.

and

to

adopt

rules

and

regulations

.

-

.

“.

The

Agency,

for

its

part,

has

the

duty

to

“administer

.

.

.

such

permit

.

.

.

systems

as

may

be

established

by

(the

Act

or

by regulations”,

to

‘~investigate

violations of

the

Act

or

of

regulations

.

.

,

or

of

permits

“,

and to “appear

before

the

Board

in

any

hearing

.

.

Id.

§1004

(g,

e,

f).

In

colloquial

terms,

the

Board

is

the

rulemaker

and

judge,

while

the

Agency

is

the

permitting

agency,

policeman

and,

in

conjunction

with

the

Attorney

General,

the

prosecutor.

Section

12(a)

of

the

Act

provides

in

general

terms

that

“No person shall:

Cause or

threaten

or

allow

the

discharge

of

any

contaminants

into

the

environment

in

any

State

so

as

to

cause

or

tend

to

cause

water

pollution

in

Illinois,

either

alone

or

in

combination

with

matter

from

other

sources,

or

so

as

to

violate

regulations

or

standards

adopted

by

the

Pollution

Control

Board

under

this

Act;”

Section

22

specifies

the

Board~s authority

to

adopt

regulations

concerning

waste

disposal,

in

accordance

with

Title

VII

of

the

Act,

while

Section

21(d)

of

the

Act requires a

permit

for

waste

disposal

operations.

In

1973,

pursuant

to

the

predecessor

of

what

is

now

Section

21(d),

the

Board

adopted

rules

governing

waste disposal in

a proceeding entitled

In

the

Matter

of

~

8

PCB

659

(July

31,

1973).

These

regulations,

codified

as

35

Ill.

Mm. Code

Part

807,

have

remained virtually unchanged since their adoption.

Section

39(a)

of

the

Act

charges

the

Agency

that:

“When the Board has by regulation required

a

permit

for

the

construction,

installation,

or

operation of

any

type

of

facility,

(or

equipment,

.

.

.

the applicant

*A11

citations

to

the

Act

refer to Sections as currently

numbered,

---

—

12—

shall

apply

to

the

Agency

for

such

permit

and

it

shall

be

the

duty

of

the

Agency

to

issue

such

a

permit

upon

proof

by

the

applicant

that

the

facility

(or,

e~ipment,

will

not

cause

a

violation

of

this

Act

or

of

regulations

hereunder,

The

Agency

shall

adopt

such

procedures

as

are

necessary

to

carry

out

its

duties

under

this

Section,

In

granting

permits

the

Agency

may

impose

such

conditions

as

may

be

necessary

to

accomplish

to

the

purposes

of

this

Act~

and

as

are

not

inconsistent

with the

regulations

promulgated

by

the

Board

hereunder.

~

if

the

Agency

denies

any

permit

under

this

Section,

the

Agency

shall

transmit

to

the

applicant

within

the

time limitations

of

this

Section

specific,

detailed

statements

as

to

the

reasons

the

permit

application

was

denied.

Such

statements

shall

include,

but

not

be

limited

to

the

following:

1.

the

sections

of

this

Act

which

may

be violated

if

the

permit

were

granted;

2.

the

provision

of

the

regulations,

promulgated

under

this

Act,

which

may

be

violated

if

the

permit

were

granted;

3.

the

specific

type

of

information?

if

any,

which

the

Agency

deems

the

applicant

did

not

provide

the

Agency

and;

4.

a

statement

of

specific

reasons

why

the

Act

and

the

regulations

might

not

be

met

if

the

were

granted.”

Congressional

adoption

in

1976

of

the

Resource

Conservation

and

Recovery

Act

and

the

USEPA’s

adoption in May,

1981

(45

Fed.

Reg.

33066)

of

interim

final

implementing

regulations

thereto,

codified

at

40

CFR

Parts

260

through

265,

created

a

federal

hazardous

waste

permitting

system

preempting

state

programs

inconsistent

with

or

less

stringent

than

the

federal

RCRA

program.

However,

RCRA

also

provided

that

state

programs

could

operate

“in

lieu

of”

the

federal

program

provided

those

programs

were

“at

least

as

stringent”

and

“not

in

inconsistent

with”

the

federal

program

(42

U.S,CO

Section

6902(b),

The

federal

RCRA

program,

as

well

explicated

by

Mr.

Dietrich

at hearing

(see

generally

H.

75-81),

sets

up

a

two

phase

authorization program.

Phase

I

relates to so called “interim

status”

facilities.

These facilities were

in existence and

operating

in

November,

1980,

have

filed

specified

notifications

to

USEPA

and

filed

Part

A

RCRA

permit applications.

Such

facilities

are

covered

by

broad,

minimum

interim

operating

rules,

and

are

deemed

to

have

RCRA

permits

during

the

possibly

several

years

until

RCRA

permits

are

issued

under

Phase

II.

Phase

II

involves

the

actual

permitting

of

each

facility.

Phase

II

rules

contain

the

technical

standards

for

issuance

of

RCRA

permits, allowing for tailoring of permits to site-specific

conditions after

public

80-184

---

—13—

Then,

in 1981, the

Illinois

legislature

in

order

to “avoid

the existence

of duplicative, overlapping or conflicting

state

and

federal

programs”

Act,

(Section 20(a)(8),

required the Board

in

Section

22.4(a)

to

adopt

regulations

within

180

days

“identical

in

substance”

to

the

federal RCRA program without

regard

to

the

Act’s

Title

VII

notice, hearing and public comment

requirements or the notice

and

review requirements of the

Illinois Administrative Procedure Act

(IAPA)

(Ill.

Rev.

Stat.

oh,

127 §1001 et s~q~)

in

order

to gain state authorization to manage

its

own

program.

(However,

Section 22,4(b)

permits

adoption

of

“not inconsistent”

and

“at

least

as stringent” additional

rules

provided

Title

VII

(and

IAPA)

requirements

are

fully

followed.

Permit

requirements

under

Section

21

of

the

Act

were

also

specifically

amended

by

creation

of

new

Section

21(f),

the

general

waste

disposal

provisions

of

Section

21(d)

having

been

made

expressly inapplicable.

Section 21

(f) provides

in

Part

that no person shal1:

“Conduct

any

hazardous

waste-storage,

hazardous

waste—treatment

or

hazardous

waste—disposal

operation:

1.

Without

a RCRA

permit

for the site issued by the Agency

under

Section 39(c)

of this Act,

or in violation of any

condition imposed by such permit,

including periodic

reports and full access to

adequate

records and the

inspection

of

facilities,

as

may

be necessary to assure

compliance

with

this Act

and

with

regulations

and

standards

adopted

thereunder;

or

2.

In violation of any regulations or standards adopted

by

the Board

under

this

Act;

or

3.

In

violation

of

any

RCRA permit filing

requirement

established under standards adopted by the

Board

under

this Act;

4.

In violation of any order adopted by the Board

under

this

Act,”

In response to

its

RCRA

rulemaking charge,

the Board has

completed two sets

of

RCRA rulemakings.

The first rulemaking

related to Phase

I

interim

status

rules,

InReThe

Matter

oL~~osedR3llesjorRC~,R81-22 Preliminary Opinion and

Order,

43

PCB

427,

September

16,

1981,

and Final Opinion

and

Order,

45

PCB 317, February

4,

1982,

adopted,

inter

alia,

as 35

Ill. Adm.

Code

725

rules

identical in substance to the federal

interim

status rules,

The Board also

adopted

a Part 700, preserving the

effectiveness of

35

Ill.

Mm,

Code

Parts

807

and

809

(old

Chapters

7

and

9).

This

rulemaking

served

as partial basis for

Illinois’

receipt, on May

17,

1982, of federal authorization

to

operate

Phase

I of the federal RCRA program

(47 Fed. Reg.

21043),

The Phase

I rules ware amended to reflect federal Phase

I amend-

ments in P.82—18,

51 PCB 31, January 13,

1983.

80-185

---

—14—

Rulemakings related to Phase

II

are

In The

Matter

of

Phase

II,

51 PCB 285, Proposed Rule, March 18,

1983

and

RCRA Rules,

R82—19,

53

PCB

131,

Final

Rule, July

26,

1983 and

In the Matter of Technical Corrections to Phase

II RCRA

Rue~~—24,

55

PCB 31, December 15,

1983.

These

rulemakings,

among other

things,

adopted rules as Part 724 identical in

substance to the federal Phase

II permitting rules.

It also

adopted permitting standards and procedures in Parts 703 and 705.

Certain of these Phase

II rules were reviewed and

affirmed

in

Commonwealth_Edison

Co.

and

Ill.

Power

Co. v.

IPCB,

Nos, 3-83-0749

and 3—84—0024

(consolidated),

September

6,

1984.

The State has not,

as

yet,

received federal authorization to

administer Phase

II,

the

permitting

part,

of the

RCRA

program.

As

a

final note,

it

should be mentioned that in adopting

“identical

in substance”

RCRA

rules,

the Board made necessary

adjustments from the

federal

administrative scheme,

where USEPA

serves as rulemaker,

“policeman”,

prosecutor,

and judge,

to

accommodate Illinois’ bifurcated

scheme that separates these

functions between

the Board

and the Agency.

GROUNDWATER MONITORING PERMIT INTERIM

STATUS

VS.

PERMIT

REQUIREMENTS

The

March 2, 1984 groundwater monitoring

permit

consists

of

a

letter

which

contains 17 special conditions,

and

an

Attachment

B

“Compliance

Schedule” which contains 10 conditions.*

WMI

challenges

the

permit as a whole,

on grounds to be set

forth

below,

WMI is also challenging,

on other grounds, Special

Conditions 12,

13,

14,

16 and 17,

in Attachment A special

conditions 2,

3,

4 and

5

and Attachment B

in

its entirety.

As an interim status hazardous waste landfill ESL is

required by Phase

I regulations to meet certain groundwater

monitoring requirements.

The groundwater monitoring program must

be capable of determining the facility’s impact on the quality of

groundwater

in

the

uppermost

aquifer

underlying

the

facility,

35

Ill.

Adm, Code 725.190,

To meet this

goal,

the regulations

require

that

the groundwater monitoring system

consist of

monitoring wells

(at least one) installed

hydraulically

upgradient

from

the limit of the waste management

area,

and

monitoring wells

(

at least three)

installed hydraulically

downgradtent at the limit

of

the waste management area

(S725,191,

R.

80—84).

The groundwater

samples

obtained

from the monitoring

wells

must be analyzed during the first year

of operation for drinking

*While it is not usual Board practice

to

do so,

this 15 page

permit is attached hereto as Attachment

1 as an aid to the reader’s

understanding of the complexity of the issues herein,

60-186

---

—15—

water parameters

(Part

725

Appendix

III),

for parameters

establishing groundwater quality

(chloride,

iron, manganese,

phenols,

sodium

and

sulfate)

and

parameters

used as indicators of

groundwater

contamination

(pH,

specific conductance, total

organic carbon and

total

organic

halogen).

After the first

year,

the annual

analysis

includes

the

parameters establishing

groundwater

quality,

and

the

semi—annual analysis is for the

parameters

used

as

indicators

of

groundwater

contamination

(S725,192,

R.

80—84).

After

the

first

year

of

analyses,

comparisons

are

made

between

the

upgradient

and

the

downgradient

wells,

If

these

results

determine

a

significant

increase

(or

pH

decrease)

the

owner

or

operator

develops

and

submits

a

groundwater

quality

assessment

program

which

must

be

implemented

by

the

owner/operator

(S725.193).

If

the

owner

or

operator

determines

that

hazardous

waste

constituents

from

the

facility

have

entered

the

groundwater

then

he

continues

to

implement

the

groundwater

quality

assessment

plan

quarterly

(S725.193(d)(7),

R.

81—84.

The groundwater monitoring

permit

on

appeal

here,

briefly

summarized, requires

the

installation of 46 monitoring wells

completely encircling the closed

and future waste disposal areas

of the interim status

landfill,

Special Conditions

1,

2,

5,

6,

7,

8,

9

10; Conditions

1,

6,

7,

8,

9

and 10 to Attachment

A.

The

wells are spaced approximately 185 feet apart

(R.

224).

Four of

the wells are background wells and thirty-seven are hydraulically

downgradient.

These

wells

are screened in the uppermost aquifer

underlying

ESL,

Five

wells

are

screened

in

the clay

till.

WMI

does not dispute the number or

location of the wells,

although it

believes the number of wells and the till monitoring requirements

are

in excess of

that

needed

to adequately monitor ESL.

The permit imposes a schedule for sampling and analyzing

groundwater collected from the wells in Condition

5 to Attachment

A.

In

addition

to

the

parameters imposed by Part 725, Subpart

F--drinking

water

parameters,

parameters

establishing

groundwater

quality

and

the

parameters

used

as

indicators

of

groundwater

contamination--the

permit

requires, during the first year,

analysis

of

samples

from

certain wells for over seventy-five

hazardous waste constituents identified at 40 C.F.R. Part 261,

Appendix VII

(“Appendix VII parameters”)* as well

as analysis of

samples from all the wells for eleven additional inorganic

parameters and thirteen additional organic parameters

(Special

Condition 13; Conditions

2,

3,

4 to Attachment A;

R.

86).

*The

Board

suggests

that

the parties

are

actually referring

to Appendix VIII

to

40

CFR

Part 261,

as Appendix VII is the “Basis

for Listing Hazardous Waste”,

rather than “Hazardous Constituents.”

However,

the Board

will

continue to refer

to

Appendix

VII in order

to

avoid

confusion.

60-187

---

In

addition to the 46 new wells, the

8 old P—series wells

must

still be sampled and analyzed

(Special Conditions 12,

13;

Condition

2 to

Attachment

A;

R.

87).

After the first year,

these

samples must be

analyzed

for

eight

organic parameters in addition

to those required by Subpart F

(R. 87).

Additionally, the permit

allows the Agency to require

a continuation of the monitoring

of

the P—series and nearby wells for additional

analyses (Condition

2 to Attachment

A;

R.

87).

At

any

time,

and

in

addition

to Subpart

F, when monitoring

indicates

a

change

in

concentration

of any of the 54 parameters,

some

in

concentrations

as small as 10 parts per billion,

WMI must

develop

and

submit

for

Agency

approval

a

groundwater

quality

assessment program

which

must

include

a

risk assessment

as an

initial

step

(Conditions

1,

2,

3,

4,

5,

7 to Attachment

B;

R.

89—91),

If

upon

completion

of

the

plan,

the

Agency

decides

at its sole discretion

that

there

“may” be

a violation of Section

12(a)

of

the

Act

or

that

there

“is a risk of harm to public

health or the

environment,”

an

engineering

feasibility

plan

for

corrective

action

must

be

prepared,

submitted to the Agency for

its approval or

modification

at

its sole discretion,

and imple—

mented to

the

Agency’s satisfaction (Conditions

5,

6,

8 to

Attachment B;

R.

94).

Corrective action is not terminated until

the corrective

action

performance

standards have been met for

three consecutive

years

(Condition

9 to Attachment B),

GeneralPermitObi~ections

WMI’s challenge

to

the

permit as a whole

is

premised on

alleged lack of Agency authority to issue any permits other than

the “RCRA permits” defined

in Section 3(vv)

and authorized by

Section

21(f)

of the Act,

The Agency does not presently have the

federal authorization to issue such Phase

II RCRA permits.

It is

uncontested that ESL is an interim status facility “treated as

having

been

issued a

(RCRA

permit” pursuant to 35

Ill, Mm, Code

703.153.

WMI

argues

that

its

only groundwater monitoring

obligations,

then,

are established by

the

Board’s interim status

groundwater monitoring rules,

35

Ill.

Adm. Code 725, Subpart

F.

WMI

asserts that no Agency permitting authority could flow

from

35

Ill.

Adm. Code 807--old Chapter 7--because those regulations

were promulgated pursuant to Section 21(d)

of the Act, now

expressly inapplicable

to

hazardous waste sites pursuant to

Section 21(f),

This argument is rejected.

First,

Part 807 was promulgated

pursuant to

~ection 22 of the Act.

More importantly, the Board

had asserted the

continued

vitality

of

its

pre—RCRA

solid

waste

regulations in

adopting

both

the

Phase

I

and

Phase

II

RCRA

rules

and

modifications,

As

previously

noted,

the Board’s position has

recently been affirmed by the Third District Appellate Court

reviewing R82—19

and R83-24,

in Commonwealth Edison Co.

and

Illinois

Power Co,v.IPCB.

The

court stated that:

80-188

---

“Prior

to

t1~e t~i~n~he

Illinois

legislature

determined

to

administer

a

hazardous

waste

~nanagement

program

which

satisfied

tn.~ ~:egn~

eu~nts

of

the

federal

RCRA,

there

was

in

place

in

the

starc

n

gram

which

regulated

the

disposal

of

wastes.

Admius~.~~-

~u~es

which

govern

the

administration

o.~

L

~

icr

waste

program

are

codified

in

35

Illinois

Adininist~~

code,

Part

807.

In

the

rules

proposed

to

implen

nt

z~tn

PLRA

program

in

Illinois,

the

IPCB

determined

that

3

t

I

J~

Illinois

RCRA

program

is

finally

accepted

bj

t~c

~in

~c

hates

Environmental

Protection

Agency,

hazardon.

.~.

innagement

owners

and

opPrators

must

obtain

perwi:e

in

c~:ca~c~

with

the

RCRA

and

the

prior

Illinois

waste

ran

~

annnt

law,

This

rule,

set

forth

in

section

70J.50j~,

ubJc~Led to

by

the

petitioners.

W~

agree,

as

the

petitroners

point

out,

that

no

express

statutory

authority

exists

for

section

700.501

in

the

legislative

enactmcnt

which

provided

for

state

rather

than

federal

administratio~

of

the

RCRA.

Nevertneless,

the

legislature’s

action

clearly

demonstrates

an

intent

to

provide

for

continuing

government

supervision

of

this

very

pressing

public

henith

problem.

If we

are

not

to

frustrate

this intent for

conLlnuing

supervision,

we

must

find

the

authority to propose reasonable transition rules from the

prior program to t .e new regulatory frame..crk to be implicit

in the legislatu~e s action authorizing the IPCB to adopt

rules to implement a utate-wide RCRA program.

(34

Ill,

L.

&

Prac,

Statutes,

section

113,)

Without

such

transition

rules,

a gap periocr would be created in which the state

would be powerless to issue

any permits for hazardous waste

facilities,

It

fc~i~nwsthen

that

until

the

United

States

Environmental

Pic

~tnon

Agency

issues

autnorization

to

the

State

of

Illinoi~

to

issue

permits under

a state

administered

RCHA

program,

the

proposed

transition

rule

which

continues

thn

sta~e permitting

process

is

valid”

(slip

op.

p.

5—6).

WMI

has

also

ehallen~ed

multiple

conditions

of

this

permit

on

grounds

of

lack

of

compliance

with

the

Illinois

Administrative

Procedure

Act,

These

arguments

are

rejected,

as

1)

the

procedures

for

permittrrg

under

Chapter

7

were

in

existence

in

1973,

long

before

the

July

1,

1977

applicability

“grandfather

clause” of Section 2

of

the

IAPA,

and 2)

the

Act

has

-never

by

reference

expressly

adquted

the

IAPA.

(See ~

100

III.

App.

3d

862,

427

N.H.

2d

415

(1981).

Prior

to addressi.ig the challenged conditions in detail, the

Board will not maka factuai findings as to which of any permit

conditions WMI agreed,

and will reject any argument that any

condition

is

valid

by

virtue

of

the

fact

that ~MI

allegedly

agreed

to

it.

WMI

corccctly

points

out

that

a

permit

is

not

a

contract

to

be

negotiatsd

~y

the

Agency

and the permittee as the

Board

has

consistently

~eld,

~

~~nInc,v,IEPA,

PCB

60-189

---

80--189

and

80

190,

45

~°3

397,

February

17,

1982,

and

~~aste

~~~ement9er~zicesvEPA,

PCB

76-166,

24

PCB

419,

February

16,

1982.

Some

furtt~

~

a~icn is

necessary

here,

as

one current

running

through

the

I

~u~~in

~ i~ that

the

instant

appeal

is

somehow

unfair

or

~eui

~i

i~

because

“a

bargain

is

a

bargain.”

A

permit

cannot

he

~nsl~e~ed

as

a

contract

where

various legal

rights

and

privileges

can

hn

~-raded

and

shifted,

because

a permit

affects

not

ins:

~ne

~,h

)f

the

Agency

and

the

permittee,

but

also

those

of

tI~eci~

~n

Were

a

permit

to

be

considered

a

contract,

in

the

nypot~.

~.

~a.

worst

case

a

shoddy

operator

could

negotiate an “anything go~,’permit if he could

locate

an un--

acceptably “flexThle” 1vc~ypermit writer,

Even putting aside

such

a

possibility,

the

r~ght of

the

state’s

citizens

to

a

healthful environment would be no better

served by negotiations

which

would result

in ~rsnance of

an arguably less—stringent—than—

believed—necessary

operating

permit

in

consideration

of,

for

example,

a

substantial

donation

to

the

Environmental

Trust

Fund

to be

used for

environmental

purposes;

the

environment

would

still

be

at

the

mercy

or

personalities,

rather

than

of

state

regulatory

policies

arrived

at

after

opportunity

for

public

input

and

administrative

and

judicial

review

c.f.

~an~g~mentof

~

PCB

82—55,

56

PCB

55,

February

22,

1984

rejecting

a

propo~ed

stipulation

under

Section

39.2

includ-

ing

conditions

judicially

ruled

outside a county’s authority in

c~y2fLa!s~~.IPc!~jal,,

120

Ill.

App.

3d

89,

457 N.E.

2d

1309

(1983),

and

banning

disposal

of

out—of-state

waste

in

potential

violation

of

the

Commer

e

Clause

of

the

United

States

Constitution,

Conditions

Incon ~

To the extent

that

the

Agency

has

authority

to issue the

instant permit,

such

authcrity

must flow from

Part

807,

and

from

Sections 12(a)

and

39

d)

of

the

Act.

As the

Board

has acknow--

ledged in the

past,

the

decade—old

Part 807

is

“sadly out—of—date,

under-comprehensive,

and under specific,” with several

attempts

to

generate successor rules having failed,

In The Matter of

Permits

~

22

atm

Criteria, P82—21 and R82—22,

52 PCB 431 June

16, 1983,*

Part 807 itself does not specifically require groundwater monitoring,

containing only

a prohibition against development or operation of

a site if “damage or hazard will result to waters of the state”

(Section 807,315),

and

an application requirement for a “description

of groundwater condrtior

.

.

and

an appraisal of the effect

of the landfill on groundwater”

Section

807,316(7),

Groundwater

monitoring was, however, clearly within the intent of Chapter

7

upon its adoption,

as

the

Board

noted that

*However,

in the mo~ recent docket R84—17,

there is promise

of completion of this four year old effort,

60-190

---

—19—

“Complete groundwater

and

subsurface

characteristics

of

the

landfill site may be required if

the

Agency determines that

such investigation is necessary to prevent pollution of

any

waters

of

the

State.

The

Agency

may

also

require

that

the

groundwater

be

monitored

at

such

reasonable

frequencies

as

it

deems

necessary.”

(In

The

Matter

of

Chapter

7:

Solid

Waste

Regulations,

R72—5,

supra,

8

PCB

at

697.)

While

Part

807

does

not

specifically

authorize

the

Agency

to

issue

“groundwater

monitoring

permits”,

it does authorize

issuance

of

development

permits,

operating

permits

and

supplemental

permits

(Sections

807.201,

807.202

and

807.210).

The

Board

construes

the

instant

permit

as

a

supplemental

permit

modifying

a

development

permit.

Within

its

four

corners Part

807

does

not

contain

specific

groundwater

monitoring

standards promulgated by the

Board.

Section

807.206

does,

however,

reiterate

the

stricture

of

Section

39(a)

of

the

Act,

allowing

the

Agency

to

establish

only

such

permit

conditions

“as

may

be

necessary

to

accomplish the

purposes

of

the

Act,

and

as

are

not

inconsistent

with

Regulations

promulgated by the Board thereunder.”

The Board construes its

RCRA

rules as providing guidance for use of Part 807 permitting

authority.

In

so

finding,

the

Board

believes

that the Agency is

thereby provided with sufficient direction to obviate any

question of unlawful delegation of the Board’s rulemaking or

adjudicatory authority c.f.

Peabody Coal Co.

v.

IPCB,

36

Ill,

App.

3d

5,

344 N.E.

2d 279

(1976); U.S.

Steel Corp.

v.

IPCB,

52

Ill.

App.

3d

1,

367 N.E. 2d 327

(1977); Commonwealth Edison,

supra.

Mr. Dietrich,

author of the 40 CFR Part 265 interim status

groundwater monitoring requirements,

as well as the

40 CFR Part

264 Phase II permitting groundwater requirements,

identified

several

conditions

which

he

believes

to

be

“inconsistent”

with

the

virtually

identical

Board

Part

725

and

Part

724

rules.

Mr.

Dietrich

believes

that,

to

the

extent

that

the

permit,

through

its

conditions

“is

an

integral

part

of

the

state

program

and

to

the

extent

it

deviates

and

is

inconsistent

with

the

Part

725

regulations of the state,

and is inconsistent with the Part

264 regulations of the federal goverment,

it could

jeopardize,

it may jeopardize the granting of final

Phase

II

authorization.”

(R.

117.)

The “inconsistencies” observed by

Mr. Dietrich

are

laid out in

the transcript at

R. 95—97,

99,

107—109.

These “inconsistencies”

fall into the following general

categories:

monitoring for

additional parameters,

sampling of till wells

in addition to

aquifer wells,

the

setting of detection monitoring triggers

requiring- assessment monitoring, establishment of

a 10 ppb

groundwater protection standard,

and

60-191

---

—20--

the

Agency

to

require

assessment

and corrective actions without

permit modification or review.

The

Board

does

not

challenge

Mr.

Dietrich’

s

reading

of

which

conditions

are

different

than

RCRA

requirements.

However,

the

Board

does

not

view

all

of

these

“inconsistencies”

as

being

fatally

infirm,

and

in

contravention

of

the

RCRA

regulations

and

their philosophy.

As heretofore indicated,

Part 725 contains minimum standards

established by USEPA pending its ability to review existing

facilities on

a site—by—site basis,

which minimum standards

were

“passed

through”

by

the

Board without substantive change pursuant

to legislative mandate.

The Commonwealth Edison court has agreed

that the existing

state hazardous waste

system is not displaced

by

with the RCRA system during the period before

Illinois’ receipt

of Phase

II permitting authorization.

Therefore,

in scrutinizing

the challenge of conditions, the Board will consider

a) whether

the conditions flow from legitimate Agency exercise of Part 807

permitting

powers previously recognized by

this

Board and the

courts,

b)

whether

such

Part

807

based conditions bear

a

reasonable relationship to activities at the

site,

and finally

c)

whether the

conditions are fundamentally

incompatible with the

procedures

or other specific

requirements of the Act or the Phase

II

RCRA rules adopted by the Board.

~nce

Schedule

lç9nd it

i2x~s 16

and

17

Special

Attachment

B

must

be

stricken

in

its

entirety.

WMI

contends,

and

the Board agrees,

that this attachment amounts

to

an

administrative

compliance

order,

The

Board

has

previously

found

that

the

Agency

has

no

statutory

authority to issue

administrative

compliance

orders

~

Ill.

Power

Co.

V.

IEPA,

PCB

83--53,

55

PCB

13,

16,

December

1,

1983,

and

finds

this

one

to be particularly repugnant given the public debate, through

comments, contained within

the

Phase

II

RCRA

rulemakings,

The Agency’ s permit manager Mr.

Eastep

has

stated

that

Attachment B could be deleted and

a facility would

still be in

compliance with the Board’s interim status Part 725,

Subpart F

regulations

(R.

955—956); as is amply demonstrated by testimony

of various Agency personnel ~

R.

835,

1346),

the essential

reason for inclusion of the schedule is to get “quick” response

if anything goes wrong.

However,

in the interests of expediency,

the power

of

the

Board

to

set

environmental

control

standards

and

the rights of the

piblic to

participate therein has been usurped,

a permittee’s due process rights have been extinguished,

and the

enforcement ability of the public, and of elected law enforcement

authorities such as the

Attorney

General and the state’s

attorneys has

been eliminated.

60-192

---

—21--

In Condition 1,

the 10 ppb assessment trigger is

an

attempt

to devise

an environmental control standard by the Agency,

an

activity which the courts have recognized is within the sole

province of the Board (~~ill

Inc.,

~

~~lCo,

v.

IPCB

36

111. A

3d5

~

Commonwealth

~Tson,

~j~ra

.

The balance of the conditions allow the Agency

to initiate and exclusively approve,

and allow termination of

assessments and corrective actions without permit modification

with

attendant public participation and appeal rights.

This is

nowhere authorized in Part 807 or Part 725, and was specifically

prohibited

in Part 724 after considerable public comment

(Phase II

RCRA,

~

53 PCB 156—157),

Similarly,

Special Conditions 16 and

17 would permit the

Agency “at its sole discretion”

to require additional monitoring

devices and parameters and to otherwise modify the permit as

deemed necessary.

These conditions,

as drafted,

are beyond the

Agency’s authority to impose,

and violate basic rights of due

process in the same

manner

as does Attachment

B.

Part 807 allows

for unilateral permit modification arguably only

in Part 807.209,

directing

the Agency to “revise any permit

issued

.

.

to make

it

compatible

with

any

relevant new

regulations

.

,

.

.“

While

Section

702.183 of the Board’s

RCRA rules allows the Agency the

right of unilateral

modification under

certain conditions

(Section

702.183),

these

rules

do

not become operative

until

Phase II

RCRA authorization is received

(Section

700,106(d),

Further,

in adopting the unilateral modification

rule,

the

Board

took

pains to explain

and

limit the unilateral

modification

right, recognizing that,

as a practical

matter,

permit

modification could be impermissibly used as a substitute for the

enforcement

mechanism

set up under the Act to guarantee

public

participation

and

Board review (Phase II RCRA,

~

53 PCB

155—157),

The

practical

effects of these

Agency

actions used as

an enforcement substitute will be discussed at the conclusion of

this Opinion.

weus”

and

G

we 11

monitor in

ar

ameters and

fre

enc

:

~lCondition12and13;AttachmentAConditions2,3,4,5,

As has been previously discussed

~

p.

7),

WMI’s

P

series wells

were installed to replace the G wells,

and have been

monitored

-to

comply with both the federal interim

status rules

and

the

Board’s

interim

status

Part

725,

Subpart

F

rules,

The

P

series wells,

since constructed with joints welded

by solvent

based

glue,

are

susceptible to providing samples showing

“false

positive” readings of low level organics contained in

the

glue

(R.

409, 944,

1094).

In this context,

Mr. Eastep

has noted that

“if

you really

had

a question about the

well

construction,

the

prudent thing to do would be to put in a new well”

(R.

945--46).

Some of the wells are

sometimes dry,

or incapable of

yielding

sufficient volume

to gain samples on other than

consecutive days

(see ~

R.

1165,

Resp.

Exh,

26,

p,

2).

60-193

---

--22--

In

its

permit

application,

WMI

had

proposed

to

decommission

these wells,

upon

installation

of

the

new

46

well

monitoring

system.

The

permit

as

issued

requires

continued

testing

of

the

P

wells,

incorporating

the

ongoing

assessment

plan

already

required

by §725.193.

In addition, the P wells and eight new wells

closest

to

each

P

well

must

be

monitored

for

the

over

75

hazardous

waste

constituents

contained

in

Appendix

VII

of

40

CFR

Part

261,

a

requirement

not

in

the

Board’s

Part

725.

Upon

submission

on

July

15,

1984

of

an

assessment

report,

if

the

Agency

should

determine

that

the

facility

“has

not

affected

the

groundwater”,

P

wells

could

be

decommissioned

(Attach,

A,

No.2),

However,

any

P wells the

Agency

found

to

be

affected

would

possibly

require

assessments,

approvals

and

corrective

action

pursuant

to

several

conditions

of

Attachment

B~

WMI

challenges

the

Special

Conditions

12

and

13

Attachment

A

concerning

P

well

monitoring

on

grounds

of

inconsistency

with

Section

725.193,

and

on

unreasonableness (Attachment B arguments

will

be

discussed,

infra),

The

specific

reasons for

the Agency’s inclusion

of

the

conditions relative

to the P wells

are

contained

in

the

testimony

of Linda Kissinger, primary author of the permit

letter

and

Attachment A

(R.

1150--1214)and David

Favero,

primary

author

of

Attachment B and contributor to Special Conditions

12,

13 and

Attachment

A, Condition 2

(R.

1324-1375).

In the

words

of

Ms.

Kissinger

“The P series wells were included

in

the

permit

in accordance with the assessment that had been going on

once they had found

a statistically significant increase in

the indicator parameters

in

the P wells.

(Special Condition 12

was included

because

the

G

series wells would not have

had

background

quality

established

for

the

next

year,

and

this

allowed

ongoing

testing

and. statistical comparisons to be made

during

that

time

frame,***

They

had

proposed in

the

application

to

sample

the

P

wells

the

first

quarter

to

complete

the

assessment,

and

we

wanted

them

to

be

sampled

during

the

collection

of

back--

ground data

on

the

new

G

series

wells

so

we

could

look

for

similarities

between

their

old----not old

analysis,

their

old

wells

and

samples collected from those,

and

samples

collected from the new

ones

for

the

same

time

period,

and

also

to complete the groundwater assessment started under

725.”

(R.

1174—1175.

Also see Favero,

R.

1341,

1344--1345.)

As

to Special Condition 13, Mr.

Favero

testified

*Thjs,

and

other guidance documents referenced

in

Mr.

Favero’s testimony are not included

in this record or

specifically cited

so as to be accessible to the Board.

80-194

---

--23--

“After

a

revised

assessment

plan

was

submitted

to

the

Agency

in

November

by

Waste

Management,

we

received

some

guidance

from

the

Federal

Government*

on

conducting

assessment

plans,

assessment

programs

at

hazardous

waste

facilities,

and

it

included

specific

testing

procedures

and

paramenters

to

check

for,

and

by

way

of

this

permit,

we

wanted

to

include

this

latest

technical

guidance

and

apply

it

to

the

ESL

facility.

Additional

wells

were

selected

in

order

that

we

could

try

to

phase

out

these

key

wells,

and

know

exactly

the

construction

details

and

the

integrity

of

the

wells

we

were

dealing

with,

and

to

also

make

sure

that

we

got

a

sample

from

the

aquifers

in

the

vicinity

of

the

P

wells,

and

not

necessarily

from

the

till

materiaL.”

(H.

1215,)

The

record

does

not,

however,

specifically

explain

why

testing

is

required

for

every

Appendix

VII

hazardous

waste

constituent,

as

opposed,

for

instance,

to

those

identified

in

the

facility~s

leachate,

The conditions at issue here are different from those

contained in Part 725 to the extent that they

a) deal with the

phasing--outof wells whose detection capabilities are questioned

by WMI, various Agency personnel and Dr. Sternberg,

who partic~-

pated in the design of the new

46

well

detection

monitoring

system,

b) the conditions

specify

which

hazardous

constituents

must

be monitored for,

and c) Attachment A, paragraph two allows

the Agency, rather than the owner,

to determine which

P wells

have been affected by the facility, before decommissioning

them.

Under

Part

807,

the Agency has

historically

had

fairly

wide

latitude

to

require

what

should,

under

the

RCRA

~stem,

be

called

“detection

monitoring”,

As

the

Board

has

previously

commented

“the

monitoring

of

groundwater

is

as

yet

an

inexact

science

(or

art),

and

the

Board

believes

that~initially,

refinement

is

less

important

than

comprehensive

coverage,

no

matter

how

preliminary

or

approximate

.

.

.

“

Frinks

Industrial

Waste,

Inc.v.1EPA,

PCB

83--10,

52

PCB

447 June 30,

1983,

The

latitude

which

has

been

afforded

the

Agency

under

Part

807

to

require

“detection

monitoring”

is

also

in

line

with

various

duties

to

collect

and

require

inf or--

mation

under

the

Act,

see Section

4(b,c,h),

However,

under

the

circumstances

of

this

case,

these

challenged

conditions

are,

in

part,

unreasonable,

The

intent

of

WMI’s

assessment

plan,

as

reiterated

in

its

1983

groundwater

monitoring

report

(Resp,

Exh,

32~33),

was

to

decommission

the

wells

because

of

their

unreliability

after

completion

on

June

15,

1984

of

the

assessment

required

under

Part

725,

Yet,

the

Board

sees

the

logic

of

the

Agency’s

desire,

as

expressed

by

Ms.

Kissinger,

to

have

sampling,

although

of

highly

questionable

usefulness,

continue

in

the

P

wells

while

background

quality

w~s

established

in

the

G

wells.

Continuation

beyond

that

time

of

the

P

wells

monitoring,

however,

serves

no

useful

purpose.

80-195

---

--24--

As to the

parameters

to

he

sampled,

this

issue

is

intertwined

with

the

challenge

to

the

sampling

parameters

contained

in

Conditions

3

and

4

to

Attachment

A,

requiring

sampling

and

analysis

for

certain

leachate

parameters

and

Appendix VII constituents

in

addition

to

those

required

by

Section

725,192.

As

a

threshold

matter,

that

portion

of

Condition

4 which

allows

unilateral

modification

of

the

list

of

parameters

to

he

monitored

is

stricken,

for

the

reasons

expressed

regarding

Special

Conditions

16

and

17.

The

Board

finds

that

Part 807 would authorize

sampling

for

parameters

beyond

those

contained

in

Section

725.192,

but

only

to

the

extent

that

such

parameters

or

classes

of

parameters

are

those

which

could

be

found

in

the

facility’s

leachate,

based

on

the

waste

material

there

disposed

of

Pet,

Exh,

15

and

Resp.

Exh,

40)

cf.

Q~~Cor.

(East_Alton)

V.

IEPA,

PCB

80--126,

45

PCB

389,

February

17,

1982.

The

unverified

findings

of

organic

contaminants

of

trace

levels

in some

monitoring

wells

provides

a

modicum of additional

support

for requiring detection monitoring for organics at the facility,

to determine whether or not

organics

are

present.

The

parties

have not advised the

Board

as

to

whether

all

of

the

Appendix

VII

constituents meet the above criteria,

and

due

to

the

shortness

of the Board’s review time the Board

is

itself

unable

to

make

the comparison.

The Board further finds that Condition 5 to Attachment A

requiring quarterly rather than semi-annual monitoring is also

within the permissible

scope of Part 807.

Summarizing the Board’s holdings on these conditions:

Special

Condition

12

is

affirmed

as

modified

in

the

Order,

Special

Condition 13 Paragraph 1

of

Condition

2

to

Attachment

A

and

Con--

ditions

3 and

4 to Attachment B

are

affirmed

subject

to

comparison

of

the parameters to the facility leachate

(although the modification

portion of Condition 4 is stricken), Condition

5 to Attachment A is

affirmed,

and

Paragraph 2

of

Special

Attachment

A

shall

he

revised

to allow for decommissioning

of

the

P

wells

once

background water

quality

for the G wells

is

obtained.

~p~al

condition 14

This

condition

~s

stricken

as

a

restatement

of

existing

law

not necessary for administrative

convenience

or

to

accomplish

the

purposes of the Act see

Illinois

Power,

~

This

condition

is

easily distinguishable from,

for instance,

a

condition

in

an NPDES

permit which contains a specific

effluent

limitation

which

is

a

verbatim

restatement of a limitation contained

in

a

Board

regulation.

That repetition is

convenient

both

to

the

operator

and the Agency, providing in a single document a facility’s

operational

standards,

and is expressly provided for in Section 39(b)

of the Act,

To the extent

that

inclusion

of

the

limitation

allows for “double enforcement” against alleged Violation on the

grounds of violation of a permit condition and

a Board regulation,

such double exposure is clearly part of

the statutory scheme.

60-196

---

—25--

The

instant

whole scale

incorporation

by

reference

of

Subpart

F

in

its

entirety

is

in

furtherance

of

no

legislative

purpose,

and

is at

best

mere

surplusage.

At

worst,

it

leads

to

the

query

of

whether,

since

the permit

does

not

also

incorporate

the

Act

by

reference,

WMI

is

relieved

of

any~obligations

thereunder

by

virtue

of

the

omission.

THE

TRENCH

11_OPERATING

PERMIT_AND

SUPPLEMENTAL

WASTESTREAM

AUTHORIZATIONS

The

stated

bases

for

the

denial

of

WMI’ s

operating

permit

for

Trench

11

are

contained

in

Mr.

Eastep’s

April

20,

1984

letter,

as follows:

“Prior

sampling

by

this

Agency

and

by

Waste

Management,

Inc.

has

indicated

the

presence,

or

potential

presence

of

hazardous

waste

constituents,

in

the

groundwater

at

the

ESL

site.

Furthermore,

the

applicant

has

not

satisfied

the

requirement

of

35

IAC

Part

725,

Subpart

F:

Groundwater

Monitoring.

With

regard

to

the

‘P’

series

wells,

the

applicant

has

not

satisfied

the

requirements

of

35

IAC

725,193(d)(4),

With

respect

to

the

‘G’

series

wells

per-

mitted

under

IEPA

permit

1984—16—SP

(March

2,

1984),

those

wells

have

not

been

sampled

and

analyzed

pursuant

to

the

permit

and

to

35

IAC

725,192(a)

and

(b).”

On

April

30,

1984,

previously

applied

for

wastestream

authori—~

zations

were

also

denied

for

the

same

reasons

which

formed

the

basis

of

denial

of

the

Trench

11

permit.

Prior

to

discussing

these

issues,

it

is

important

to

note

the

scope

of

the

Board’s

review

powers

in

Section

40

permit

appeals.

As

the

Board

has

noted

on

reconsideration

in

another

case

involving

operating

permit

denial

on

the

basis

of

alleged

groundwater

monitoring

deficiencies,

Frink’slndustrialWastev,

IEPA,

PCB

83--10,

52

PCB

447,

Opinion

and

Order,

June

30,

1983,

Order

on

reconsideration

54

PCB

25,

September

8,

1983:

“Since

1972, the Board has consistently held

‘that

the

issue is,

in a Section

40 hearing, whether the Agency erred

in

denying the

permit,

not

whether

new

material

that was not

before the Agency persuades the Board’ the Agency was wrong

Soil Enrichment Materials Cor

,

v.

IEPA, PCB 72--364,

Octo er

.

5

PCB at 27.

The

Board’s

view

of

its

Section

40

role

has

been

confirmed

by

reviewing

courts,

~

Mathers,

~

In

this

context,

then,

the

Board

must

mention

the

testimony

of

Dr.

Warner

and

Dr.

Hryhorczuk

These

experts

had

no participation

either

in

the

preparation

of the permit applications,

or

in

the

Agency’s

permit

decision

---

--26--

deliberations.

The

hearing

officer

a

;~ow~d

-~-~aa

testimony

of

these

two

doctors

“for

purposes

of

rebuttiaq

a wthint’

that

dfl~

witness

presented

on

hehali

of

~1asre

Mdnagemerlt,

nut

tnct

as

independent

evidence

in

support

of

the

Aqency

-

s

actions

in

this

case”

(R.1253),

While

the

Board

does

not

find

the ruling of

its

hearing

officer

allowing

this

testimony

on

a

~‘~ry

limited

rebuttal

basis

so

c~ear~yerroneous

as

to

merit:

reversa

their

test.:h~onycar

lawfully

be

accorded

hu~: little

weight.

Much

of

the

testimony

of

these

q:arts,

n~ we

I

as

Lhat

of

citizens

and

Agency

witnesses,

e~-.oenriailv

:~evoivsd

around

the

issuea

of

a)

whether

waste

d:isposai

should

ea’cr

have

been

allowed

at

the site

given the

“geology

of

the

site”,

it

ceing

st:ipniated

that

the construction

and

design

of

Trench

11

~n

and

or

ir~elf

is

not at

issue

(R.

68) and b)

whether

a

new

1984

“state

of

~ns

art”

Trench

11

should be allowed

to

operate

at

a

site

initialiy

per-

mitted

in

1972,

when

experts

generaJi~

agree

th~t

all

landfills

will eventually leak

and the

site

as

a

who.e

has

rio

active

leachate

collection

system,

trench

by

L~encn ~ynthstic

liners,

or

other

mechanisms

to

prevent

esoape

of

contar:inanrs

from

toe

areas

in which they have been

disposed.

Again,

these

issues