ILLINOIS POLLUTION CONTROL
BOARD
November
26, 1984
~.J~STE
MAUAGEMENT,
INC.,
)
)
Petitioner~
)
v.
)
PCB 84—45
PCI3 84—61
t~r~INois
ENVIRONMENTAL
)
PCB 84—68
PROTECTION
W3ENCY,
)
Consolidated
Respondent.
SUPPLEMENTAL
OPINION, CONCURRING
IN PART, DISSENTING
IN PART (by
l3~
Forcade):
I must dissent,
in part,
from the
Board’s
Supplemental
Opinion
and Order,
which affirms on reconsideration the denial of
~~tizen
intervention.
I originally explained my position on this
issue
in my concurring
and
dissenting opinion of October
1, 1984.
Rriefly stated, while
I am concerned about the potential
impact
that
Landfill,
Inc.
has
on
the
procedural
rules
concerning
citizen
intervention,
I believe it is improper for the
Board
to
invalidate
these
rules
and
deny
intervention
rights
without
going
through
a
L)roper
rulemaking
procedure
or
without
specific
direction
from
a
higher
court.
Landfill,
Inc.
is
almost
six
years
old.
If
our
~uies
are
invalid
they
should
have
been
changed
long
before
this
issue
arose.
As
Chairman
Dumelle
has pointed
out
in
his
concur-
ring
statement,
there
are
compelling
reasons
to
allow
intervention,
not
the
least
of
which
is
the
strong
tradition
in
Illinois
of
liberal
p~blicparticipation rights in the environmental
area.
Today,
we once again deny intervention rights that I believe our
procedural
regulations establish.
I,
therefore,
must
dissent
from
paragraph A(3)
of today’s order.
While
I
am
in
agreement
with
the
balance
of
the
Board’ s
Order
and
the
general
outcome
that
is
achieved,
I
must
concur
with
the
supplemental
opinion
adopted
by
the
majority.
Speci-
fically,
I
have
concerns
regarding
the
majority’s
analysis
of
the
nature
of
Board
review
in
a
permit
appeal
and
the
application
of
the
standard
of
review
to
the
facts
of
this
case.
I
also
wish
to
explain
my reasons for ~1pporting today’s order (except regarding
denial
of
intervention),
as
it
differs
from
the
majority’s
rationale.
Illinois
has
a
unique
administrative
system
in
the
area
of
e~wironmental
regulation
and
control
because
of
the
division
of
functions
between
the
Illinois
Environmental
Protection
Agency
(“Agency’1)
and
the
Board.
This
system
creates
especially
vexing
problems in the context of Board review of permit decisions.
Oscar
Mayer
and
the line
of
cases
that
adopt
that
approach
provide
some
guidance
for
the
Board
on
the
proper
scope
of
review
in
a
permit
appeal,
bet
Illinois
law
is
silent
on
what
the
proper
standard of review is
in these cases.
61-~321
2
Under
Oscar
~
the
Board
reviews
the
“record
before
the
;gency at the time
the
decision was made.”
Frequently that
record
consists
of
substantial
quantities
of
technical
reports,
correspondence
and
analytical
data.
One
purpose
of
the
Board’s
hearing
is to allow the parties the opportunity to emphasize
those portions of the record most favorable to their position
in
an
organized
manner.
Although
the
scope
of
review
is
easily
articulated,
it
leads
the
Board into substantial
difficulty in
determining
what
statements
by
witnesses
at
hearing
were
“before
the
Agency,”
and
which
were
not.
These
problems
are
not
unique
to
Illinois
law.
Professor
Davis
has
criticized
the
“informal
record
before
the
decisionmaker”
concept
as
unmanageable
and
unrealistic,
Administrative
Law
of
the
Seventies,
§29.01—8
kenneth
Culp
Davis
(1976).
The
voluminous
record
developed
in
the
present
case
and
the
numerous
evidentiary
disputes
that
arose
illustrate
problems
inherent
in
this
approach.
While
I
support
the
majority’s
conclusion
that
the
appropriate
standard
of
review
for
Agency
factual
determinations
is
substantial
evidence,
I
would
follow
the
Illinois
Supreme
Court’s
articulation
of
that
standard
in Menning v. Department of Registration and
Education,
14
Ill.
2d
553,
153
N.E.
2d
52
(1958).
There,
the
court deemed the findings of
an administrative agency prima facie
true
and
correct.
The court stated that reviewing courts were
not authorized to reweigh evidence
or to make independent deter-
minations of facts. However,
agency decisions must be
supported
by
competent
and
substantial
evidence.
The
majority
has
neglected
to
deem
the
Agency’s
findings
of
fact
prima
fade
true
and
correct.
I
believe
that
Menning,
Landfil1~
Inc.,
and
§39
of
the
Act,
provide
a
sound
basis
for
this
deference
to
Agency
fact
finding
in
the
permit
area.
Likewise,
I
agree
with
the
majority
that
the
Board
need
not
defer
to
the
Agency’s
conclusions
of
law.
Interpretations
of
the
Act
and
Board
regulations
are
a
proper
function
of
the
Board.
When
these
theories
are
applied
to
the
factual
evidence
regarding
the
Trench
II
permit
denial,
I
reach
the
same
conclusion
as
the
majority.
At
pages
29—31
of
the
October
1,
1984
majority
opinion,
the
evidence
on
implementation
of
the
groundwater
assessment
plan
and
groundwater
monitoring
is
reviewed.
I
support
the
majority
opinion
that
the
unanimous
evidence
shows
the
assessment
plan
was
being
implemented
and
that
none
of
the
assessment
plan
reports
or
groundwater
quality
monitoring
analyses
were
overdue
at
the
time
the
Agency
permit
decision
was
made.
The
difficult
aspect
of
the
decision
is
that
portion
of
the
permit denial
based on the “presence,
or potential presence of
hazardous
waste
constituents,
in
the
groundwater.”
This
relied
primarily
on
the
results
of
groundwater
quality
monitoring
at
the
facility.
On
this
issue,
I
depart
from
the
majority
reasoning
as
61-322
expressed
at
pages 27—29
of the October
1,,
Opinion
and
pages
:~2-l3 of
the November 26,
Opinion.
There,
I believe the majority
does
a
de
novo
review
of
the
groundwater quality evidence and
draws
a conclusion contrary to the Agency;
the majority finds the
testing
results
invalid.
I
believe
the
Agency’s
factual
determinations
should
be
~jiven
deference,
and
any logical
inferences thereof.
I believe
there
was
substantial
evidence that the groundwater quality
monitoring data was correct.
The
logical
implication
that
may
be
drawn
from
this
data
is that ten older hazardous waste cells,
without
synthetic
liners
and
with unknown clay compaction or
a~~resenceof fractures, may after nearly
a decade lead to the
intermittent
presence of trace or part per billion concentrations
ot~contaminants in the groundwater.
Unfortunately, the laws of physics dictate that
all hazardous
waste
cells
will ultimately leak.
Absent special circumstances,
~ch
as
a major source aquifer
or undermining, governmental decision-
making
must
be
based
on
determinations
of
when
and
how
much
leakage
will
occur
and
whether
that
amount
is
manageable,
not
an
whether
leakage
will
occur
at
all.
I
am
unwilling
to
conclude
that
trace
concentration
leakage
from
adjacent
cells,
with
unknown
engineering,
constitutes
substantial
evidence
that
Trench
II, with “state-of—the--art” engineering, will leak unreasonably
soon
or excessively when the permeability tests
are
to the contrary.
I
would
note
that
landfill
permitting
decisions
are,
by
necessity,
predictive
of
future
events.
If
those
predictions
prove
incorrect
and
leakage
does
occur,
enforcement
actions
can
be
filed
with
this
Board
against
any
landfill
se~king
remedial
action
to
contain
contamination
and
prevent
harm~
I,
Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Supplemental
Opinion,
Concur-
ring
in
Part
and
Dissenting
in
Part
was
submitted
on
the
~L’/
day
of
c
~
,
1984.
~
i/i.
‘
‘~
~
Dorothy M. ~(inn,Clerk
Illinois Pollution Control Board
Board
Member
RI
..~