ILLINOIS POLLUTION CONTROL BOARD

October 14,

1976

ARCH DEVELOPMENT,

INC.

Petitioner,

v.

)

PCB 76—168

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

CONCURRING OPINION

(by Mr. Dumelle):

The major problem in this proceeding

is that the Illinois

Environmental Protection Agency has established a prohibition on

fills

in areas affected by

a 100-year flood.

Because no permit

could be obtained,

the Petitioner

filed this variance before

us.

The question of

landfills

in flood plains was raised

in the

1972 hearings on R72-5,

Solid Waste Rules and Regulations.

The

Board, after discussion,

did not adopt a flooding frequency rule

on the basis that such

a regulation would constitute a form of

zoning.

A landfill, with suitable levees,

could then be placed

in a flood plain under the Board regulations adopted July 19,

1973.

In this case we have

a hole in the ground which is to be

filled to grade and placed into wheat production.

Were there

no

Agency 100 year flood area prohibition this case might not have

arisen.

Is this Agency rule the extralegal equivalent of

a Board

regulation?

Having raised this question

I must then agree with the majority

opinion

that data are lacking.

Flow often does the site flood?

To

what depth?

How permeable are the banks of this borrow pit?

And

what amoutits and types of leachate

(if any)

can be expected from

the metal remaining in the concrete?

I agree that the Petitioner has not carried its burden.

This

may be a case of de minimus leachate

(or none) but we do not know

from this record.

A permit denial appeal on the issue of the 100-year

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flooding policy might be the vehicle to squarely address the

propriety

of that guideline.

I concur in the decision.

Submitted by

I,

Christan

L. Moffett, Clerk of

the

Illinois Pollution Control

Boar,~,hereby certify the above Concurring Opinion was submitted on the

~__day

of October,

1976.

~ard

24—72