ILLINOIS POLLUTION CONTROL BOARD
March
4,
1982
COUNTY OF LA SALLE,
ex rel.
GARY PETERLIN,
STATE’S ATTORNEY OF LASALLE COUNTY:
THE VILLAGE OF NAPLATE, a municipal
corporation; THE CITY OF OTTAWA,
a municipal corporation;
THE VILLAGE OF
UTICA,
a municipal corporation;
OTTAWA TOWNSHIP BOARD OF TRUSTEES,
ex
rel.
THE TOWN OF OTTAWA;
RESIDENTS AGAINST
)
POLLUTED ENVIRONMENT,
an Illinois
not-
for-profit corporation; ROSEMARY SINON;
MARIE MADDEN;
and JOAN BENYA BERNABEI,
)
Petitioners,
v.
)
PCB 81—10
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
)
WILLIAM CLARKE;
PIONEER DEVELOPMENT;
)
PIONEER PROCESSING,
INC., and
)
WILMER AND EDITH BROCKMAN,
)
Respondents.
MR. JOSEPH KARAGANIS,
MR. RUSSELL EGGERT AND MR. MICHAEL HEATON
OF O’CONOR, KARAGANIS,
& GAIL,
LTD;
MR. TIMOTHY CREEDON OF
HOFFMAN, MUELLER
& CREEDON; AND MR. GARY PETERLIN, LA SALLE
COUNTY STATE’S ATTORNEY, APPEARED ON BEHALF OF PETITIONERS.
MR. DELBERT
D.
HASCHEMEYER, ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
MR. THOMAS
J.
IMMEL AND MR. LEE K.
ZELLE OF BURDITT AND IMMEL
APPEARED ON BEHALF
OF RESPONDENTS WILLIAM CLARKE, PIONEER
DEVELOPMENT, AND PIONEER PROCESSING, INC.
OPINION OF THE BOARD
(by J.D.
Dumelle):
This Opinion supports the Board’s Order of
February 16,
1982
entered
in this matter affirming the Illinois Environmental
Protection Agency’s (Agency’s)
granting of a developmental permit
to William Clarke,
Pioneer Development,
Pioneer Processing
Inc.,
and Wilmer and Edith Brockman on December 22,
1980.
45—45
1
—2—
PROCEDURAL BACKGROUND
William
H.
Clarke,
Pioneer Development,
Pioneer Processing,
Inc.,
and Wilmer and
Edith
Brockman, (hereinafter Pioneer)
applied
on July
1,
1980,
for a transfer of permits previously issued to
Wilmer and Edith Brockman
for
a tract of land in Ottawa Township
in the County of
LaSalle, Illinois,
They also sought approval for
a modification in the development
approved
in that permit.
The land on which the proposed site is to be located consists
of 177 acres situated off Moriarty Hill Road and
is approximately
one and one—half miles to the west
of the Village of Naplate.
Specifically, the land is located in part of the south one—half of
the northwest quarter
of Section 17, and the
northeast quarter of
Section 18,
The applicants
for the transfer of the permit and a
supplemental permit are
William
H.
Clarke,
Pioneer Development,
Pioneer Processing,
Inc,,~ and Wilmer and Edith Brockman.
William
H.
Clarke
is
an Illinois resident who
is the representative of
Pioneer Development, an Illinois partnership.
Wilmer and Edith
Brockman are the interim
(or
present)
owners
of the 177 acre tract
of land and the holders
of Permit
#1975—23-DE, which was the
permit sought
to be
transferred.
The
Brockmans have entered into
a
lease
—
purchase agreement which has transferred control and
will transfer ownership of the
property to the other applicants.
Pioneer Processing,
Inc.
is an Illinois corporation which would
be responsible
for the proposed site’s management and operation.
Four individuals,
John Vanderveld,
Jr., William
H.
Clarke,
Harold
Flannery and Louis
E. Wagner, own complete control of
Pioneer
Development and Pioneer Processing,
Inc.
The modification the applicants have
sought would be
basically to allow the processing and/or solidification of certain
special and hazardous waste streams
at the subject site.
Certain
modifications to the development of the site were also requested.
Finally, no waste streams would he disposed of at the site in a
liquid
state;
all waste streams would be solidified prior to
disposal.
The Agency held public hearings on the application on
November 21 and 22,
1980 in Ottawa,
Illinois and the Agency record
was closed on December
12,
1980.
A developmental permit was issued
on December 22,
1980 as, alternatively,
a transferred or a new
permit.
That permit was appealed to the Board upon a January 26,
1981 petition for review and revocation.
A Board hearing on the
matter was scheduled for April
6,
1981.
However,
on March 20,
1981 Petitioners LaSalle County and
Rosemary Sinon filed suit in LaSalle County Circuit Court
(Thirteenth Judicial Circuit,
No,
81-MR—16) seeking
a declaratory
judgment that the permit was void and asking for a preliminary
injunction prohibiting Pioneer from development of the site.
A
45—452
—3—
preliminary injunction was issued on March 25, 1981 and on the
day of the Board’s
scheduled hearing an order was entered
enjoining the Board and the parties
from further proceedings
in
this matter, despite the fact that the Board
was not a party to
the circuit court
action.
By Order of the Board of April
16,
1981 the Board stayed these proceedings effective April
6,
1981
pending final adjudication of the injunction.
The Third District Appellate Court dissolved the injunction
and ordered the circuit court case dismissed for failure to
exhaust administrative remedies, but issuance of the mandate
was stayed pending appeals to the Supreme Courts of Illinois
and the United States.
Both courts denied review, the mandate
issued, and the case returned to the Board on January 25,
1982.
Hearings were held on February
6 and
8,
1982 which lasted
for a total of twenty-five hours.
Mr. Thomas Cavanagh and
Mr.
Terry Ayers, both of the Agency,
and Mr.
Michael Heaton,
one of
Petitioners’ attorneys, presented testimony as did several citi-
zens.
One hundred and eight exhibits were offered into evidence,
most of which were admitted.
The transcripts of the hearings
(totaling 751 pages) were filed with the Board on February
9
and 10,
1982.
The Board affirmed the Agency’s granting of a
developmental permit for the site on February
16,
1982, which is
within the Board’s statutory decision period under Section 40(a)
of the Act.
Pioneer has argued that the permit has issued by operation
of
law since the Board did not reach
its decision within
ninety
days
of the date of filing for review and since Pioneer never waived
that statutory period.
They argue that,
since the Board was not
a party to the injunction action in circuit court and never
received actual notice of it, the Board was not bound by it.
The
Board disagrees, and reaffirms its Order of April 16,
1981 which
stayed the proceedings.
The Board did have knowledge of the
injunction, was specifically named therein, and was therefore
bound to abide by it until
it was dissolved.
That did not occur
until January
25,
1982.
While the effect of that injunction upon the ninety day
decisional period
is unclear, the Board’s decision was reached
within the tightest possible reasonable time period.
Since an
injunction must maintain the status quo, the injunction must be
construed at a minimum to have acted as a stay during its
entire effective period.
Since the computation of time proceeds
from the day after the applicable act or event occurs, the
decisional period recommenced on January 26,
1982 and the last
day for decision, under the tightest assumption would have
been
February 15,
1982.
However, that day was a federal holiday
pursuant to P.L. 90—363 such that the final day for decision
became February
16.
See Procedural Rule 105 and Ill.
Rev.
Stat.
Ch.
1, Par. 1012.
45—453
—4—
DEFAULT
Pioneer makes a somewhat related argument
that the permit
should have been affirmed on the basis of the failure of
Petitioners to make a timely appearance at the originally
scheduled April
6,
1982 hearing.
It argues that that hearing
was called to order and adjourned prior to Board knowledge of an
issued injunctive order, that Petitioners presented no evidence
and,
therefore,
defaulted,
Under the facts
of this case,
the
Board must again disagree.
The Board
in general attempts to construe its procedures
liberally.
In this case there is no showing of bad faith on the
part of the Petitioners
(they were, apparently,
in the circuit
court receiving the injunctive order at the time of hearing and
arrived less than an hour late)
nor is any material prejudice
shown.
Finally, the Board was
in fact able to reschedule the
hearing and reach a timely decision,
Therefore,
the Board
finds that there was no default, and will proceed to consider
Petitioners’
arguments.
ADMINISTRATIVE PROCEDURE ACT APPLICABILITY
Most of Petitioners’
arguments center around the applicability
of the Administrative Procedure Act
(Ill.
Rev.
Stat.
Ch.
127,
Par.
1001; APA)
to the proceedings
at the Agency level prior to the
granting of the permit in this matter.
Petitioners argue that
the APA applies and that the Agency violated the APA in numerous
instances.
It is true that the Agency has stipulated that it was
required by law to follow the APA contested case provisions
in
these proceedings and that the APA had not been completely
followed
(Pet.
Ex.
35).
It
is not true that that stipulation,
presented to the circuit court, disposes of the applicability
issue.
First, not all parties accepted the stipulation.
Pioneer
has argued strenuously that it cannot be bound by it and that,
in
fact, the APA is inapplicable.
Second, even
if the Agency were
to determine that the APA is applicable
in any~givencase,
it is
for the Board,
not the Agency, to reach a conclusion of law as to
the propriety of that determination.
Before proceeding with the Board’s reasoning, and since all
parties embrace the same case as demonstrating the validity of
their arguments,
a brief discussion of Borg Warner Corp.
v. Mauz~,
100 Ill.
App.
3d
862, 427 N.E.
2d 415
(1981)
is appropriate.
That
case interpreted Section 16 of the APA as
it applies to the
NPDES provisions of Section
39(b) of the Environmental Protection
(Act)
and Board Chapter 3:
Water Pollution Rules,
and found that
Borg Warner was not entitled to an adjudicatory hearing prior to
final Agency action on the basis that Section 39 required only a
discretionary hearing and did not thereby trigger APA applicab.ity
under Section 16 of the APA.
Therefore,
the court never reached
the question of what sort of mandatory hearing would trigger that
provision.
45—454
—5—
Since
a
public hearing
is mandated
in this case under
Section
39(c)
of the Act,
the Board must
proceed to
the next step,
i.:~.whether that public hearing
is the type of hearing which
is
considered
a contested case under the APA.
To that question
l3ora
Warner
gives no direction.
Therefore,
the Board must reach
its own conclusion
as to the
applicability of the APA to the Agency’s hazardous waste landfill
permitting procedures.
The Board concludes that the
APP.
is not
applicable
in that context, based upon
an
examination of the
AP?~
and the
Ac!:,
All parties agree that the Agency’s hazardous waste landfill
permitting process constitutes “licensing”
as defined
in Section
3,04 of the APA,
The
Board also agrees.
As defined by Section
3.02,
a “contested case”
in pertinent part means “an
ad-judicatory proceeding,
not including.. .informational or similar
)coceedings,
in which
the
individual
legal
rights.., of
a party
are required by law to be determined by an agency only after
an
opportunity for hearing.”
Licensing is neither expressly included
nor excluded from this definition, though Pioneer argues
persuasively that its non—inclusion should be considered
as
an exclusion.
Since no party has argued to the contrary, the Board will
issurne for
purposes of this argument,
hut without deciding,
that
the
Agency is an agency as defined by the APA.
Therefore,
for
the APA to he applicable to the Agency,
this licensing proceeding
must he adjudicatory rather than an “informational or similar pro—
cneding”
and the legal rights
of a party must be determined only
aFter an “opportunity for hearing” which
is “required by law.”
Section 39(c)
of
the
Act provides that “the Agency shall
conduct
a public hearing” prior to
the
issuance of
a permit for
a hazardous waste disposal site.
The question then becomes
whether such
a hearing is adjudicatory or informational.
The
Board
concludes
that
the public hearing required
in
this
conteut
~s
not
adjudicatory.
There
are
several
factors
which lead
to
this
conclusion.
First,
there
are
no
“parties”
at
the
Agency
level
oF
the
permitting
process.
As
defined
in
Section
3.06
of
the
APA,
a
party
is
“each
person
or
agency
admitted
as
a
party,
or
properly
seeking
or
entitled
as
of
right
to
he
admitted
as
a
party.”
No
such
persons
or
agencies were admitted as parties, and
in fact it
would
be
impossible
to
align
the
participants
prior
to
an
Agency
decision in that
the
Agency
does
not
take
a
position
in
con-
formity with or adverse to the
permit
applicant prior to reaching
a decision on
the
disposition of the permit application.
Only
after
such
a decision is reached
do the participants have
the
right to become parties,
and that right accrues before the Board,
not before the Agency.
Second, while Petitioners argue that a hearing is a hearing
and that
any hearing triggers the
contested case provisions, that
simply is not true.
The drafters of the Act clearly distinguished
45—455
—6—
a
“hearing” from a “public hearing.”
In regulatory matters,
the
Board
is instructed to hold “public
hearings”
(Section
28).
Such
hearings are not adjudicatory.
On the other hand,
in adjudicatory
actions
(enforcement cases, variances, and permit appeals)
the
Board
is to schedule “hearings”
(Sections
31(b), 37(a)
and 40(a),
respectively).
A “public hearing”
is informational,
a “hearing”
is adjudicatory.
A “public hearing”
is for the public and the
agency,
not simply a hearing to he held in public.
Third, while Petitioners
contend that an adversarial
hearing
is necessary before the Agency
in the context of permit
grants because there
is no opportunity for an adversarial hearing
before the Board, the Board again disagrees.
This case has been
nothing if
it has not been adversarial, and the
overall review
process
(including
Agency and Board proceedings) for third party
permit
appeals
for
hazardous
waste sites will not he constried
to more greatly limit
the participant’s procedural rights than
does the permit denial appeal process of Section 40(a),
Such
must
have
been
the intent of the legislature in adopting Section
40(b).
Further,
despite
the
fact
that the Section
40(a)
hearing
is
not
expressly
limited
to
being
“based
exclusively
on
the
record,”
that language
can
easily
be
viewed
as
a
recognition
of
the
Board’s
often repeated holding that a Section 40(a)
permit
appeal
must
he
decLded on the basis of what was before the Agency at the time of
decision regarding the permit
(Owens—Illinois,
Inc.,
v. IEP~
PCB
77-288;
February
2,
1978).
“The
issue
is
whether
the
Agency
erred in denying the permit,
not whether new material that was
not
before
the
Agency
persuades
the
Board
that
a
permit
should
be
granted”
(Soil
Enrichment
Materials Corp.
v. IEPP~5 PCB 715;
October 17,
1972).
Since the Agency record is to include
all.
material and relevant facts upon which the Agency relied in
making a determination as to whether a permit should he granted,
the requirement that a
Section 40(h) hearing be based exclusively
on the record does not become a limitation upon the due process
rights
of
any
party
any
more
than
does
the
Section
40(a)
inter-
pretation
of
the
Board,
In
fact,
Section
40(b)
gives greater
protection
in
that
a
public
hearing
is
mandated
at
the
Agency
level, thereby allowing additional input to the Agency,
such
that
any person can participate and insure that all relevant, material
facts are made part of the record and. can be relied upon during
review by the Board.
Thus,
the Board concludes that the “public hearing”
requirement of Section
39(c)
is not the sort of hearing which
would trigger the contested case provisions under Sections 16(a)
or 3.02 of the APA and that the Agency’s permitting decision
under Section 39 of the Act does not determine the legal rights
of
a “party”
as defined
in Section 3.06 of the APA.
For these
reasons,
as well
as other reasons advanced in Pioneer’s brief,
the
Board concludes that the
APA is inapplicable to Agency hearings
on the siting of hazardous waste
landfills.
45—456
DUE
PROCESS
Petitioners argue that the basic elements
of the APA’s
“contested case” provisions are simply reflections of the
constitutional requirements
of due process under the Fourteenth
Amendment.
Therefore,
the argument continues,
even if the APA
were held inapplicable, the Agency would still
be required to
disclose all
rules and evidence, to allow full cross—examination
rights,
avoid ex ~rte
contacts,
and include all materials
in the
record presented to the Board.
Each of these allegations will be
separately addressed.
Petitioners contend that the Agency illegally used secret
rules
of decision.
To be more specific, they aller
that the
Agency required a maximum permeability of
1 x 10
cm/sec for
landfill
liner material
(meaning that the flow through the
liner material can be go greater
than this speed) despite having
never publicly disclosed that “rule”.
Citing Section 4(a) of
the APA,
they allege that the Agency failed “to make available
for public inspection
all rules adopted by the Agency.”
Such
an argument is without merit.
Even if the APA is assumed to
merely codify due process procedures,
the “requirement” that a,8
hazardous waste landfill have
a maximum permeability of
1 x 10
cm/sec has never been adopted by the Agency
and, therefore, need
not be made available to the public.
In
fact, the Agency probably
lacks the power under the Act to adopt such a “rule”.
Rulemaking
authority under the Act is reserved solely to the
Board, except as
to the distribution of
funds generated from grants, gifts and loans.
Under APA Section 3.09 a “rule”
is any “agency statement of general
applicability that implements,
applies,
interprets,
or prescribes
law or policy.”
The Agency’s “rule”, however, does none of those
things.
It is
applied on a case—by—case basis.
Its application
can be rebutted as improper under the facts of any given case
(though this was not done
in the case at issue),
and there
is no
presumption before the Board that a hazardous waste la~dfill site
would violate the Act
if
it failed to meet the
1 x
10
cm/sec
standard.
It, therefore,
is not a “statement
of general applic-
ability.”
A more proper interpretation of that “rule”
is that it
represents the thinking of the Agency as to what permeability
is
necessary for a hazardous waste
landfill liner to assure the non—
violation of the Act,
which finding the Agency is required to make
?rior to permit issuance under Section 39 of the Act.
Neither the
applicant nor the Board is bound by such thinking.
If_~napplicant:
could prove that a liner with a permeability of
1 x 10
cm/sec is
sufficient for a given site to meet the mandates of the Act and
the
regulations thereunder, the Agency could not properly refuse
to grant a8permit for the site simply because a permeability
of
1 x 10
was not met.
Thus,
since the
“rule”
is not binding,
it need not be made available for public inspection.
The Petitioners also contend that the Agency record as fiJed
was incomplete.
This allegation serves as a prime example of how
the overall hazardous waste landfill permitting system protects
45—457
—8—
due process rights without the necessity of applying the APA to
the Agency proceeding.
While Board review under Section 40(b)
of
the
Act
is
to be “based exclusively on the record,” that review
is meaningless
if the Agency has complete control
over what
constitutes the record.
The Agency could pre—decide most any
permit action,
place only those materials in the record which
support that decision, and then rely on the record,
as presented,
to support that decision.
If there were no Board review, the
only remedy would he
a reversal by the courts.
However,
the
bifurcated hearing procedures
for hazardous waste landfill siting
allow for review by the Board of the question of sufficiency of
the Agency record
as submitted.
Petitioners have the right to
establish at the Board hearing that the record,
as submitted,
is
incomplete.
In turn,
the Board procedures allow for the curing
of record deficiencies and for the determination
of whether the
record,
as corrected,
supports the Agency’s permitting decison.
In this way, Petitioners’
due process rights are protected.
Therefore,
the Board concludes that even
if it were proven that
the Agency record,
as filed,
was incomplete, Petitioners were
given adequate opportunity
to cure any and all defects
at
the
Board hearing, and such incompleteness fails to give rise to
a
due process violation.
Petitioners next argue that the Agency illegally relied on
secret evidence and illegally accepted post-hearing evidence.
Again, assuming for the
sake
of argument that the Agency did rely
upon
materials
which
wern
not made part of
the
record
or which
were submitted to
the ~\qency
after the Agency hearings, and which,
therefore,
were not
suhject to cross—examination
at the Agency
level,
these defects
were
cured by Board review.
In
a Section
40(h) proceeding before the Board,
a petitioner has the
opportunity to complete the record and
to demonstrate that the
record failed to support the Agency’s decision.
That right
includes
the
right to rebut or cross—examine in appropriate cases,
e.g. where,
through
no
fault
of
the petitioner, petitioner was
unable
to
do so
at the Agency
level.
Petitioners also argue
that
the
Agency was involved
in
improper ex ~te
contacts,
again citing the APA as authority
~or reversal.
This argument
is
also without merit.
Petitioners
simply
misconstrue the hazardous waste siting procedures under
the
Act.
The permittin: process, at the Agency level,
is not
controlled by the
PIPPA
and.
in fact
if the APA were held applicable,
the Agency might well
he much
less able
to fulfill its
responsiblllty to protect the environment under the Act.
Further,
the Board has held that
there
are no true parties
at the Agency
level.
Therefore, there can be no such thing as ex parte contacts.
The
permitting process,
at the Agency
level,
involves
considerable give and take.
Examination
of an application
gives rise to questions
to which only the applicant may he able
to adequately recpond.
Written comments may give rise to further
:juestions,
and
the public hearing itself may well give rise to
even more,
as may comments submitted after hearing.
To cut off
communications with
the
applicant at any time prior to the closing
of
the record might well result
in the inability of the Agency to
reach a fully informed decision.
—9--
The alternative, to give
“notice and opportunity for all
parties
to participate”
in the contact (under APA Section 15)
would he an unreasonable burden for several reasons.
The first
problem would he to determine whom to notify.
Prior
to hearing
would all commenters have to he notified?
After hearing would
all present at hearing have
to be notified?
All
who testified?
Further,
the Agency
is under a 180 day statutory time
limit to
reach
a decision under Section
39 of the Act.
If
these “fully
participated” contacts were held to be necessary, the Agency
might well be put
in
a position of either refraining from asking
useful
questions, having the permit issue by operation of
law,
~r denying the permit and starting over from square one,
simply
to receive some information that could be obtained through
a
phone call.
Petitioners may still
argue that if such action
is necessary
t~protect their due process rights,
then that is what must be
done.
However,
that is not necessary.
Any so—called “ex r~~te”
contacts,
if relied upon,
should be made part of the record before
the
Board.
If
they
are
not
made
part
of
the
record,
the
petitioner
has the right to demonstrate
to the Board that they should have
been.
If the Board
agrees,
the petitioner can then argue that
they demonstrated that the Agency’s decision was wrong.
In that
way the due process
rights are again protected.
Petitioners next contend that the Agency failed to give
notice and an opportunity to contest the technical and scientific
facts
it relied upon,
once again citing the APA
(Section 12(c)).
While the substance of the allegation is rather difficult to
determine,
apparently Petitioners
are arguing that any Agency
expertise relied upon must be made part of the record.
No
support
is given for this proposition being required by due
process,
and its
scope
is not delineated.
Further, there are no
material,
specific allegations of technical or scientific
facts
which
were
lacking
from
the Agency record and which were not
cured
during
Board
review.
The
Board,
therefore,
rejects
this
argument.
Finally,
Petitioners
argue
that
the
Agency
failed
to
make
legally
required
findings
of
fact.
Again,
aside from the APA,
no
support
is
given
for
the
proposition
that
due
process
requires
such findings.
Further,
the Agency did,
in
fact, voluntarily
issue findings and, while these were not reduced
to writing until
almost
two
months
after
this
case
was
filed,
Petitioners
had
access to them for nearly eleven months prior to Board decision
in
this matter and more than ten months prior
to the Board
hearings.
In summary,
the Board has concluded that the APA is
inapplicable
to
proceedings
at
the
Agency
level
concerning
hazardous waste landfill permit decisions and that all due process
rights have
been
protected by the Board’s review
of
the
permitting
process.
45—459
—10—
Fundamental
fairness
in
the
context
of
a
third
party
permit
review of a hazardous waste site must be viewed in terms of the
overall process, including both the Agency and the Board
proceedings.
The Board review can serve as a vehicle for curing
any defects in procedure that occurred at the Agency level.
That
is, the Board is not constrained to simply sit in judgment of
whether the Agency acted completely properly; otherwise there
is
no apparent reason for a hearing
at the Board
level.
It would
simply be oral argument.
In this case there were certainly procedural shortcomings at
the Agency level, but that
is to be expected when the statutory
mandate is
so recent.
The parties, the Agency, and the Board have
all grappled with
a large number of unknowns.
The Agency record
as filed with the Board could certainly have been more complete
and some hearing officer rulings may have been questionable.
However, all relevant information has been brought before the
Board,
the record has been supplemented, and all parties have had
the opportunity to present their arguments.
Any remaining diff
i—
culties with the overall proceeding have been of a minor nature
and constitute nothing more than harmless error.
Thus, the Board
finds that this process has been fundamentally fair and any error
was non—prejudicial and harmless.
RESOURCE CONSERVATION AND RECOVERY ACT ISSUES
Petitioners argue that development of the site would
violate The Resource Conservation Recovery Act
(P.L.
94-580;
RCRA) and, therefore, would violate the Act,
such that the Agency
cannot grant a permit for the site.
Their entire argument is
premised upon the definition of sanitary landfill which under
Section 3(w) of the Act
is a facility which must meet “the
requirements of the Resource Conservation and Recovery Act.”
Petitioners further argue that
no extrinsic evidence can be
considered regarding this definition since the language is plain.
Petitioners’
argument overlooks the fact that to be a
sanitary landfill
a facility must also be “permitted by the Agency
for the disposal of waste on land”
(Section 3(w)).
The site at
issue here is,
therefore, not a sanitary landfill and cannot
become one prior to issuance of an operating permit,
since it has
only been permitted for development, not for the disposal of waste.
Further, the Agency has conditioned the permit upon Pioneer
obtaining all necessary RCRA permits.
Surely, the intent of the
State’s hazardous waste program is to insure that a site complies
with all applicable federal and state regulations prior to the
development of any hazardous waste site.
The Agency’s actions
in this case have just as surely fulfilled that intent.
Pioneer
cannot develop the site in reliance upon the State permit until
RCRA regulations have been complied with.
Petitioners next argue that because USEPA has recently
denied “interim status” to Pioneer, Pioneer cannot use the state
development permit and
it should, therefore,
be revoked
(see
40
CFR §122.22(b) and SCA Services v.
PCB,
71
Ill.
App.
3d 715,
389
45—460
—11—
N.E.
2d 955
(1979)).
However, USEPA’s denial was on January
20,
1982, while the permit was issued by the Agency on December 22,
1980,
and the Board
is constrained to review the permitting
decision on the basis of what was before the Agency at the time
of decision.
Finally, even if “interim status” had been denied
prior to December 22,
1980 the Board would find that fact to be
immaterial
in that such denial does not preclude future granting
of a RCRA permit to Pioneer.
NEW
OR
TRANSFERRED
PERMIT
Petitioners argue that the Agency violated their statutory
rights in that the permit could not properly have been transferred
and that notice and hearing requirements were not met for the
granting of a new permit.
The Board need not reach the question
of whether the Agency properly transferred the permit because
it
finds that the permit was properly issued as a new permit.
Petitioners contend that the Agency’s purported issuance of
a new permit must be reversed for a failure by the Agency to meet
the mandates of Section 39(c) of the Act.
Their argument proceeds
as follows:
Pioneer first requested that its application be
treated
as
a request for a new permit on December
12,
1980,
that
Section 39(c) contains certain notice and hearing requirements,
and that those requirements were not met after that request.
This argument, much as the RCRA argument,
has much better
form than substance.
It ignores the fact that the notice and
hearing requirements for a supplemental permit
(which was initially
requested and upon which the Agency originally purported to act)
are the same Section 39(c)
requirements as for a new permit.
Since
there is no allegation that these requirements were not met
when Pioneers’ request for
a permit transfer and supplemental
permit was made, any technical violation of Section 39(c)
regarding
a new permit could not have been prejudicial.
RULE 316 REQUIREMENTS
Petitioners have alleged that the permit application was
incomplete because certain requirements of Rule 316 of Chapter
7:
Solid Waste, were illegally waived by the Agency.
Specifically,
they contend that the requirements
of Rule 316(a)(6) concerning
soil sample data and Rule 316(a)(B) concerning monitoring were
improperly waived.
This impropriety allegedly resulted from the
lack of evidence that such information is inapplicable to the
proposed landfill,
the failure to disclose decisional criteria,
and the lack of notice of the intent to waive.
The Board finds
these allegations to be devoid
of merit.
Rule
316
provides
in
pertinent
part
that
an
“application
shall include, unless waived in writing by the Agency,”
the infor-
mation specified.
It does not, however, require a finding of
inapplicability, decisional criteria or notice.
Certainly,
if
Petitioners had presented proof that the waiver rendered the
45—461
—12—
application insufficient to support a finding that the site would
not violate the Act or regulations thereunder,
the Board would
have to rule on that issue.
However, no such allegation was made,
nor was it alleged that there
was no written waiver.
OWNERSHIP ISSUES
Petitioners have made much
of
the
fact
that
an
adjacent
landfill
site, which is owned and operated by the Brockmans has
been operated in an environmentally unsound manner.
They argue
that since the Brockmans owned the site at issue here at the
time of permit issuance that their operating record precludes
issuance of this permit under Section 39(f) of the Act.
The
Board disagrees.
Even
if Petitioners had proven that the Brockmans operated
the adjacent site
in the worst possible manner,
the conditions
of the granted permit and other facts of this case demonstrate
that Section 39(f)
cannot properly act to preclude the permit
grant.
The Brockmans were named participants at the Agency
level
in a nominal manner only since they were the present owners.
The
conditions of the permit preclude any operating responsibilities
over the site at issue and they are contractually required to
relinquish ownership rights upon completion of the permitting
process.
There is no showing that those who will own and operate
the site at the time the site becomes active have done anything
which would preclude them from receiving a permit under Section
39(f).
NAPLATE AND THE WELLS
Section 21(g)
of the Act prohibits a hazardous waste disposal
site located within a mile and
a
half
of
a
municipality
in
a
county of 225,000 or more without a waiver from the governing
body, or within a thousand feet of a private well or the existing
source of a public water supply.
The Village of Naplate, therefore, had to have waived the
requirement for a permit to be granted,
and it did in fact execute
such waiver.
There is no evidence in the record before the Board
that it acted to rescind that waiver prior to the Agency’s
decision to grant the permit
(see R.
531—537).
As noted above,
the scope of the Board’s review of permit appeals
is limited to
the record before the Agency at the time of decision.
Therefore,
any later rescission is not presently before the Board and the
Board need not reach the question as to what effect a rescission
subsequent to the granting of developmental permit would have on
the granting of an operating permit after a purported rescission.
Petitioners
further allege that Section 21(g) prohibits the
site because it is both within one thousand feet of existing wells
and directly above
an area aquifer which supplies drinking water.
45—462
—14—
Under Section 21(g)
of the Act no hazardous waste landfill
site can be located within a mile and a half of
a municipality
without its approval, within one thousand feet of an existing
private well or water supply,
above a shaft or tunneled mine,
or
within two miles of an active fault
in the earth’s crust.
The
two former prohibitions have been discussed above.
The two
latter prohibitions have not been argued as applicable to this
site,
and the Agency record establishes the inapplicability.
Ronald Landon, who conducted the subsurface geologic
investigation, testified that no underground shafts or tunnels
were
observed
and
that
no
deep
mining
or
tunneling had been
conducted (Agency
TRI,
pp.
53—54),
He further testified that
published geologic reports and maps fail to show any active
fault or seismic activity within two miles of the site (Agency
TRI,
p.
53).
This was further confirmed by the Department of
Energy and Natural Resources.
Turning to other aspects of the geologic and hydrogeologic
issue,
the Board finds the site generally suitable for the
treatment and disposal
of special and hazardous waste because of
the exceptionally high containment qualitites of these geologic
and hydrogeologic conditions,
The site is located in a strip—
mined area near the Illinois River.
Twenty to thirty feet of
mine spoil generally overlies the St. Peter Sandstone.
The spoil
is
relatively homogeneous and can be described as
a silty clay
(.002mm),
71
silt
(.002
—
.05mm)
and
3
sand
(.05
—
2.0mm).
Recompacted_~amplesof the spoil_~aveexhibited permeabilities
from
1 x 10
cm/sec to 2.3 x 10
cm/sec.
Since the develop-
mental permit issued to this site requires 10 feet8of recompacted
spoil
liner with a maximum permeability of
1 x 10~ cm/sec,
(ATT—3)1
water will not move through the spoil
liner for hundreds
of years.
Any contaminants which the water contained will be
attenuated through chemical ion—exchange with the spoil
liner or
will be filtered out by the fine—grained spoil well before it
passes through the spoil
liner.
This travel time should be
further extended due to permit conditions requiring pumping to
keep the secure cells dry and synthetic liners.
Petitioners have supplemented the record with information
allegedly showing that th~permeability of the site is consider-
ably greater than 1 x
10
cm/sec.
However, these allegations
were adequately rebutted through the testimony of Thomas Cavanagh
(R.
657—698),
He testified, essentially, that maximum permeability
tests will yield varying results depending upon the compaction and
upon the required permeability limits for the type and use of the
site involved.
That is,~fa specific material
is shown to have
a permeability of
1 x 10
cm/sec under certain conditions,
it does
not necessarily follow that the permeability cannot be lessened.
Further,
if a site
is found to be unsuitable for hazardous waste
disposal under one set of engineering plans,
it does not neces-
sarily follow that it would be unsuitable under other plans.
45—464
—15—
Petitioners
have
also
argued
that
the
solidification
process
to be used at the site
is unproven, that the technical data sup-
porting the process were not made available
for inspection,
and
that Petitioners were not allowed to cross-examine any witnesses
regarding that process.
This argument, however,
ignores the fact
that the Agency found, based upon considerable test data, that
the site will be environmentally sound without the use of the
solidification process.
Further, before any wastes can be
disposed of at the site, under the conditions of the permit,
a
supplemental permit must be obtained.
Since it is not yet known what particular substances will he
disposed of at the site,
the Agency would have been unable to run
meaningful tests on the process prior to the time
of permit
issuance,
and review of the process would be largely meaningless.
The proper time for such review is when the materials are known.
That
is at the time of application
for the supplemental permit.
The Agency’s finding that the site is hydrologically sound
is supported by a report which was submitted as part of the appli-
cation
(pp.
31—94),
which included the results of tests based on
thirty—four soil borings and five monitoring wells.
Possible
contamination of the St. Peter Sandstone aquifer was fully
considered and found to be highly unlikely given the geological
and hydrological findings and the precautions against leachate
which are required to be taken with respect to the development
of the site.
The landfill
is located
in a sparsely populated area which
has been extensively strip mined.
It
is presently a barren and
largely unvegetated tract of
land.
Upon closure of the site a
cap
is to be put in place and seeded,
thus ultimately enhancing
the aesthetics of the area.
During operation screening berms
and natural vegetation will conceal the site from public view.
The Board finds that the Agency has adequately considered
objections to the site that were raised at the Agency
level and
has properly concluded that such objections were without
substantial merit.
CLOSING NOTE
Nothing
in our environment
is risk free.
And there is
probably no one in the State who would prefer to live next to a
landfill rather than a lake or a forest, even though these
also
create risk.
However,
until
society decides that the benefits
of modern production are being outweighed by its costs, or until
technology advances to a point where safer, economically
reasonable alternatives to landfilling exist for all hazardous
wastes, the hazardous wastes will have to be buried under as
carefully controlled conditions as possible.
The
Board
has
always
felt
that
public
participation
in
its
proceedings
is
beneficial,
if
often
emotional.
The
public
can
bring
forth
overlooked
facts
and
can
insure
that
a
complete
45—465
—16—
record is presented to the Board such that
it can make a fully
informed decision.
The Board then must face the difficult issue
of whether the Agency’s permitting decision should be affirmed or
reversed.
In making that decision
it must act objectively, for if
it did not, no permit could be issued.
The constant flow of
hazardous wastes would continue and go somewhere,
but probably not
safely.
Based on the record in this case the Board has concluded that
the Agency properly granted the developmental permit to Pioneer.
This Opinion constitutes the Board’s findings of fact and
conclusions
of law in this matter.
IT
IS SO
ORDERED.
Board Member
D.
Anderson abstained.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Bo~rd,hereby certify that the above Opinion was adopted
on the
1/v’
day of
_____________,
1982 by a vote of~3—O
Christan
L.Mof,,~
,
CTerk
Illinois Pollut
Control Board
45—466
