ILLINOIS POLLUTION CONTROL BOARD

December

2,

1982

DONALD

J.

 HAMMAN,

Petitioner,

)

v.

)

 PCB 82—15

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Respondent.

MS. TRIS MICHAELS BAKER and MR. JOSEPH

 H. BARNETT OF PUCKET’F,

BARNETT,

LARSON,

 MICKEY, WILSON

 & OCHSENSCHLAGER APPEARED ON

BEHALF OF THE PETITIONER.

MR. DONALD

 GIMBEL OF THE ILLINOIS ENVIRONMENTAL PROTECTtON

AGENCY APPEARED ON BEHALF OF THE RESPONDENT.

MR. ELIOT

 A. LANDAU OF LANDAU

 & CLEARY, LTD., APPEARED ON BEHALF

OF THE TOWNSHIP OF WHEATLAND AND HARRY

A.

 MATNERS,

 ET AL.,

INTERVENORS.

MR. VAN A.

 LARSON OF DE BARTOLO

& DE BARTOLO APPEARED ON BEHALF

OF RAYMOND GREENBERG, WHEATLAND TOWNSHIP HIGHWAY COMMISSIONER,

INTERVENOR.

OPINION AND ORDER OF THE BOARD

 (by 3.D.

Dumelie):

This matter comes before the Board upon

 a February 16,

1982 petition for permit review of a developmental permit issued

by the Illinois Environmental Protection Agency (Agency) on

December 31,

 1981 for a 145—acre sanitary landfill site

 in the

Township of Wheatland, Will County.

 That permit,

 issued in

response to a November 19,

 1981 Order in PCB 80—153

 (44 PCB 73),

purports to exclude all special wastes despite the fact that

Donald Hamman’s permit application specifically includes non—

hazardous commercial and industrial wastes.

It

 is that portion

of the permit that Hamman requests the Board to review.

A hearing was held in this matter on April

23,

1982

at which time the Township of Wheatland,

 Harry

 A. Mathers and

Raymond Greenberg, Wheat.and

 Township Highway Commissioner, were

allowed to intervene.

 Twenty to thirty members of the public

were present, some of whom testified.

50-49

—2—

The issue in this appeal

 is a narrow one:

 whether the

Agency acted properly in issuing a permit which excluded special

wastes.

 Resolution of that issue

 is simplified by the Agency’s

admission in its May 19,

 1982 Brief

 in Lieu of Closing Argument

that “it erred in failing to issue a permit to develop the site

for wastes specified in the permit application.”

 That conclusion

is buttressed by Petitioner’s Exhibit No.

1,

 a stipulation entered

into by Hamman and the Agency wherein

 it is stipulated that

“petitioner sought authority to develop a solid waste disposal site

handling general municipal, commercial and industrial non—hazardous

 wastes”

 (Stip.

 para.

 3), that “the permit issued.., excludes all...

special... wastes”

 (Stip. para.

 4), and that “the proposed site

is suitable...

for

 the disposal

 of non-hazardous commercial and

industrial waste as requested in the Application”

 (Stip.

 para.

5).

Further, the Board notes that the Board’s November

 1.9,

 1981.

Opinion and Order in PCB 80-153,

 which considered

 the same appli-

cation, found that all o?

 the technical

 (design)

 requirements had

been satisfied.

These

 facts would be dispositive

 of the issue, but for

the intervention of Wheatland, Mathers and Greenberg who argue

that “justice required a continuance and the denial of same

undeniably prejudiced Intervenor’s ability to have proper persons

brought before the Board for purposes of confrontation and cross—

examination prior to admission of

 the aforementioned stipulation.”

(Intervenors’ Memorandum of May

 21, 1982), and that the stipu-

lation resulted in a “sham” hearing.

Intervenors’

 note,

 in that regard,

 that they were unaware

of the stipulation prior to hearing, that they had no opportunity

to cross—examine those persons whose expertise was relied upon

i~i

preparation of the stipulation,

 and that due process rights were,

therefore, violated.

 Certainly, the stipulation cannot act to

 bind Intervenors without their consent,

 and reliance solely upon

such a stipulation would normally be

 improper.

However,

 in this case intervention was not allowed prior

to the day of hearing.

 Hamman and the Agency were the only par-

ties and,

 therefore,

 unless they violated some duty to notify

Intervenors of the action,

 they were justified in reliance on the

stipulation.

 They could not be expected to bring witnesses to

hearing when the stipulation effectively resolved the case, and

where Intervenors’

 request for continuance was properly denied.

Intervenors cite no authority for their proposition that a

duty to inform was violated.

 While it

 is true that these same

Intervenors had participated in an earlier permit appeal concern-

ing the same site

 (PCB 80—153), the issues

 in this case differ

markedly.

 The earlier case involved the sole issue of whether off—

site roads were adequate while this action involves the sole issue

of whether special wastes could be accepted.

 Further, Intervenors

were aware of this action at least as early as March 29,

 1982 when

they filed an improper “special limited appearance” and requested

50-50

—3—

the setting of a hearing,

 for the sole purpose of challenging

the

Board’s subject matter jurisdiction.

 They certainly could have

 moved to intervene at that time, thereby limiting the effect of

the stipulation which was not yet in existence,

 hut they chose

not to.

The failure to intervene prior to hearing also justifies

the Hearing Officer’s denial

 of the motion for continuance.

Proceedings before the Agency,

 the Board and the Courts have

delayed the issuance of a permit (which both the Board and the

Courts have determined should have been issued)

 for more than

two

years.

 To allow intervention on the day of hearing to further

postpone the action would have been improper.

The stipulation was in existence

 at the time of intervention

and had apparently been agreed upon by the only parties in the

case at that time (though it

 is possible that the Agency had

not

yet signed it).

 Therefore,

 since continuance had been properly

denied,

 and no evidence was presented rebutting it, and since

Intervenors must take the case as they find it, the Board may

properly accept the statements contained in the stipulation as

true.

As stated earlier, that stipulation is dispositive of

the

central issue of the case.

 Since the Agency admits that the site

is acceptable for the disposal of special wastes and since

the

permit application requested authorization to accept such wastes,

it could not have been necessary to accomplish the purposes of

the Environmental Protection Act to exclude those wastes.

The

Board thus concludes that such exclusion was improper.

Other issues raised by Intervenors are not material to this

action.

 The permit under review here

 is that which was issued

in response to the Board’s November 19,

 1981 Order which indicates

that final action was taken on this permit on January

8,

1981

and that all that remained was Agency completion of the “now-

ministerial task of issuing the permitt.ing paper”

 (Hamrnan v.IEP~,

PCB 80—153,

 44 PCB 84).

 That statement remains

 true,

 despite the

fact that the Agency erred in its ministerial

 task.

 Thus,

SB

172

(Section 39.2 of the Environmental Protection Act) remains

inapplicable with respect to the permit as

 it should have been

issued as explained in that earlier Order.

 The suitability of

the site to accept special wastes was determined years ago and

is not at issue here.

 The issue of the off-site roads

 is being

determined upon appeal

 of PCB 80—153 and

 is also not in issue hera.

The hearing was not a “sham;” Intervenor’s simply misunderstood

its scope and entered the case too late to take full advantage of

their rights at hearing.

The Agency now takes the position that the Board should

remand this case “to the Agency for issuance of

 a developmental

permit to accept those wastes specified

 in Petitioner’s appli-

 cation,

 subject to lawful conditions”

 (Agency Brief of May 19,

50-51

—4—

1982,

pp.

 2—3).

 Hamman,

 “would object,

 however,

 to any construc-

tion that would attempt to define the exclusion of special waste

as a ‘condition’”

 (Hamman Brief of May

 20, 1982,

p.

7).

 It is

unclear whether the parties consider these positions

 to he adverse.

If Hamman is arguing that no conditions may be imposed which lii~it

the acceptance of special wastes through the supplemental permit

process,

 that proposition cannot be upheld.

 The Board and the

Agency are charged with the duty of protecting the environment

and a condition which requires disposal

 of only special wastes

for which a supplemental permit has been obtained

 is justified

to protect the environment.

 That is what should have happened

as of January

8,

 1981.

The Board notes that

 in its October 14,

 1982 Order in

PCB 80—153 a stay was imposed upon the effectiveness of the

September 15,

 1982 Order pending a final determination of

 this

proceeding.

 That stay, therefore,

 is no longer in effect.

This Opinion constitutes

 the Board’s findings of fact and

conclusions of law in this matter.

ORDER

This matter

 is remanded to the Agency

 for issuance of

a

developmental permit subject to the condition that

 if an opera-

ting permit is obtained,

 Hamman may accept

 for disposal only

those special non-hazardous wastes

 for which a supplemental

permit has been issued by the Agency under Rule 210 of Chapter 7:

Solid Waste.

IT IS SO ORDERED.

I, Christan L. Moffett,

 Clerk of the Illinois Pollution

Control Boa~,hereby certify that the above Order was adopted

on the_~

day

of__~~.~t~.IL~.~~~~

____,

 1982 by a

vote of

“~

//

:~‘

Christan L. Moffett, Clerk

Illinois Pollution Control Board

50-52