ILLINOIS POLLUTION CONTROL BOARD

July 21, 1982

AMERICAN FLY ASH COMPANY,

)

AN ILLINOIS CORPORATION;

KATHRYN SVENDSON AND JOHN SVENDSON,

)

Petitioners,

)

v.

)

PCB 81—188

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

FREDERICK C.

PRILLAMAN:

MAHAN, ALEWELT AND PRILLAMAN;

APPEARED ON BEHALF OF THE PETITIONERS.

DONALD

L. GIMBEL, ATTORNEY AT LAW, ENFORCEMENT PROGRAMS,

ILLINOIS ENVIRONMENTAL PROTECTION P~GENCY,APPEARED ON BEHALF

OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J.D.

Dumelle):

This matter

comes

before the Board upon the December

1,

1981 filing of a petition for review of a permit condition

pursuant to Section 40(a) of the Illinois Environmental Protection

Act.

Therein, Petitioners challenge the inclusion of Special

Condition No.7 of the Developmental Permit issued by the Illinois

Environmental Protection Agency (Agency) to Petitioners on October 27,

1981.

That condition requires “written evidence that the applicant

and Tazewell County have an agreement relative to road maintenance

and load limits.”

American Fly Ash company (AFA)

is the proposed developer

and operator of a landfill of approximately 84 acres

located on

a 186 acre tract of land situated in Section 30 of Elm Grove

Township in Ta~ewellCounty, three miles southeast of Pekin.

American intends to purchase the site under an option from the

owners,

and noriinai Petitioners, Kathryn and John Svendson.

The landfill is intended to handle fly ash and well bottom

boiler slag only, generated by Commonwealth Edison’s Powerton

Plant, which is also in an unincorporated area of Tazewell

County.

On January

21,

1982 the Board dismissed this action based

upon the retroactive applicability of

513 172 which established

new procedures

for the issuance of permits for new regional pollutior~

control facilities.

Dismissal was based upon the lack of any

allegations by AFA that it was not a new regional pollution control

47-417

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facility of that it followed those new procedures.

However, the

Board reinstated this action by Order of April

1,

1982,

agreeing

with a February 18, 1982 Opinion of the Attorney General which

concluded that local general purpose units of government include

only counties and municipalities,

and based upon AFA’s subsequent

assertion that the facility was not regional.

Given that construction

and the facts alleged in this case, the Board concluded that the site

at issue here was not in fact a new regional pollution control

facility and, therefore, was not subject to SB 172 requirements

which became effective as to non—regional facilities sixteen days

after issuance of the permit at issue here.

I~earingwas held on

May

20, 1982 in Pekin and briefs were filed

i.~i lieu of closing

arguments by the Agency on June

8 and June

25,

1982, and by

Petitioners on June

9 and June 18,

1982.

The Agency’s

latter

brief was accompanied by a motion for leave to file,

since that

filing is not by right, which is hereby granted.

A motion to

allocate costs was filed by AFA on June

22,

1982 and an Agency

response was filed on June

25,

1982.

The only issue before the Board is whether the Agency

properly included Special Condition No.7 in the October 27,

1981 Developmental Permit issued to Petitioners.

Such a con-

dition is proper only where it

is necessary to accomplish the

purposes of the Environmental Protection Act

(Act) and is con-

sistent with regulations of the Board.

Unless both of these

conditions are met, the condition must be stricken upon appeal

(see Section 39(a)

of the Act and Rule 206 of Chapter

7:

Solid

Waste).

Under the facts of this case the Board finds that the

appealed condition is not necessary to accomplish the purposes

of the Act.

The Agency argues it correctly imposed the condition “to

ensure that the county roads would be adequately maintained

and thus,

allow their use by other vehicles for other legitimate

purposes”

(Agency Br.

pp.

5—6).

In support of this argument, the

Agency cites evidence which establishes that forty truckloads of

waste would be brought into the facility each day

(Pet.

Ex.

A and

R.

43), carrying a total waste load of 960 tons

(Resp.

Ex.

2 and

R.

42)

in trucks weighing 25,000 to 30,000 pounds

(R.

45), resulting

in an average total weight per truck of approximately

36 tons.

Further,

the Agency established that the weight limit for the

county roads which are proposed to be used is

15 tons

(R.

68 and

87)

and that while these roads

(Towerline and Townline)

are presently

in good shape, the proposed increase in truck traffic would neces-

sitate a considerable increase

in maintenance

(R.

45—47,

50—52 and

70—73).

While these facts are unrebutted and are accepted by the

Board as

true, the protection of county roads from damage

is

not,

in itself, a purpose of the Act,

and does not establish

that any environmental harm is threatened.

There has been no

showing, for example, that the location of the facility and the

attendant traffic would interfere with the land use of the area,

that the road deterioration could cause spillage of any of the

47-418

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—3—

wastes,

or that any substantial noise or

air

l?ollution would

result.

On

the

contrary,

the

evidence

shows

that

AF~is

willing

to assume

responsibility

for

the

maintenance

of

the

affected

roads

(R.

11—12

and

Pet,

Ex,

A,

p.

24),

that

the

roads

are

presently

in

good

condition

CR.

20-21,

59,

70,

and

84), that

the affected bridges and culverts can withstand the projected

loads

(R,

45—46 and 70), that the site is adjacent to another

landfill

(R.

23 and 27) and is located in an otherwise generally

agricultural area

(Permit App,,

p.

2),

Under these circumstances the only potential harm appears

to

be to the roadways themselves,

and even that should be remedied

by AFA’s offer to maintain them,

Thus, AFA has demonstrated that

the appealed condition is not necessary to fulfill the purposes

of the Act.

Moreover, the Board has held that denial of

a permit “for

failure of a

local official,

for whatever reason,

to agree to do

that which he is empowered to do,

and has the duty to do--improve

township roads—-at the cost of a permit applicant, was improper.

The Board is persuaded that in so doing,

the Agency has unlaw-

fully delegated its permitting authority”

(Hamman v.

IEPA, etal.,

PCB 80—153,

November 19,

1981),

The

same

reasoning applies here.

In both cases the permit applicant was required to obtain

a written agreement with local authorities regarding improvements

to the affected roads prior to development of the site,

and none

of the differences between the fact situations would lead to a

contrary conclusion,

Under pre—SB 172

law,

to in essence allow

a locality to veto the permitting

of a landfill site

is incon-

sistent with the establishment of a unified state—wide program

supplemented by private remedies (Carison v, Villa~eof_Worth,

62 Ill.

2d 406,

343 N.E.

2d 493,

499;

S,Ct.

1975 and cases cited

therein,

and see Coun~~fCook v. John Sexton Contractors,

75 Ill.

2d 494,

389 N.E.

2d 553, applying this rationale to non—home—rule

units).

AFA argues that

H~mman

is controlling and that the differences

are in AFA’s favor:

namely,

that the roads involved here are in

good shape, whereas in

Ilamman

the roads were inadequate,

and that

here, unlike in

Hamman,

another landfill is adjacent to the subject

site.

The Agency,

on the other hand,

attempts

to distinguish

Hamman on the basis that AFA~sapplication affirmatively shows

that site operations would violate a local ordinance,

AFA does propose to exceed the county weight limit,

whereas

there was no weight limit question in Harnman.

However,

the fact

that the weight limit has not been posted on the affected roads,

that other present truck traffic exceeds the weight limit,

including those trucks which serve the adjacent Pekin Metro land-

fill, and that the limit is not being enforced, are undisputed

(R.

21—23,

26—27,

74—77 and 06—87),

Terry Gardner, Superintendent

of Highways of Tazewell County, did testify, on the other hand,

that if the overweight vehicles began to cause road damage, the

County would post and enforce the weight limit

CR.

74—77,

85—87).

47-419

---

If, in fact,

the County refa

to teach an agreement with

AFA, and

if

the

County posts and e~orces its weight limit, and

if AFA commences opera to~

a

coit

c~L~tweenAFA and the County

will

arise.

However~the reaco

tr

of Carls~n,

~y~~Cook

and Hamman will remain applicable

ro allow a locality

to

bar

a

landfill, whether througn

zonirg ordintace or through weight

limits on roads,

or by refusing to reach an agreement on

road

construction or maintenance is not generally acceptable under

the

State

landfill siting permit sys~ern,and such

restrictions

may only

be considered insofar as they relate to protection of

the

environment.

The Act does not grant the Agency authority

to

insure

compliance with all loccl ordinances.

On June

28,

1982 the Tnird District Appellate Court remanded

the Hamman

proceeding to the Board ~~1~Mathers,

et al.

v.

IPCB,

Donald

J.

Hamman and the IEPA,

No.

81—741) and directed that

the

Board

order the Agency to ~ssue a permit containing a condition

that

the

access road be improved according to Agency

specifica-

tions which it had earlier agreed ~o

~he basis for that decision

appears to be that Haeman

ucorceded the necessity of the required

action” and has not “even intimated that the failure to upgrade

the road would do anything but cau~eenvironmental damage.”

However,

having avoided facing tie issue directly, the Court,

through dictum and by requiring ~hat the Agency specify acceptable

road

improvement,

intir ated that allowing a road

commissioner

to

block the improvement of

ne road might well

be viewed as an

improper delegation of the Agency~spermitting

authority.

AFA has certainly n

t conceded that environmental

harm

will

be

caused through u~eof ~o~nl

i-~’

and Towerline roads.

The roads

are

presently

in good shape and IF

appears to be willing to

assure

they remain so.

Unlike Hammar the roads do not

need

to

be improved

prior to commencing operations to ensure that the

environment is protected.

If the roads are allowed to deteriorate

to a point

where environmentai

harm

is caused,

an

appropriate

action may

be

brought, and the permit can be revoked upon a

showing that AFA is the cause.

Therefore, the Board concludes that Special

Condition

No.7

is

improper and that the permit should have issued without

the

appealed condition on October 27

1981 and that reference should

he made to that date in determining the applicability of

any

legislative enactments, regardless of the date on which the Agency

completes the now—ministerial task of issuing the permit.

Finally, the Board will deny Petitioners~motion to allocate

costs.

Hamman was under appeal by the Agency at the time of its

permitting decision, and the Agency advanced arguments in this

case which it could have in good faith decided distinguished this

case from Hamman.

This Opinion constitutes the Board~s findings of fact and

conclusions of law in this matter.

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—5—

ORDER

This matter is hereby remanded to the Agency for issuance

of a developmental permit consistent with this Opinion.

I. Goodman dissented.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby cert~fythat the above Opinion and Order

were adopted on the

~ 1~day of

_________________,

1982

byavoteof

9,-,’

.

Christan

Illinois Pollution Control Board