ILLINOIS POLLUTION CONTROL BOARD
November 10,
1976
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
PCB 75—368
COMMONWEALTH EDISON COMPANY,
an Illinois corporation,
Respondent.
Mr. Marvin
I.
Medi
Assistant Attorney General, appeared on
behalf of Complal:
i;
Mr.
R.
Rex Renfrow,
III,
Isham,
Lincoln
& Beale, appeared on
behalf of Respondent.
OPINION
AND
ORDER
OF THE
BOARD
(by Mr. Goodman):
This matter comes before the Board upon the Complaint of the
People of the State
of
Illinois by William J. Scott, Attorney
General of the State
of
Illinois
(State)
against Commonwealth
Edison Company and Lincoln Stone Quarry,
Incorporated, both Illinois
corporations, and the First National Bank of Joliet as Trustee under
Trust No.
724.
The Complaint was filed before the Board on September
19,
1975.
On November
24, 1975 the State filed an Amended Complaint
which excluded Lincoln Stone Quarry,
Incorporated,
as Respondent.
On December
18,
1975, Respondent First National Bank of Joliet was
dismissed by Order of the Board in response
to its Motion filed on
December
3,
1975.
The subject of this action is a solid waste management site
operated by Edison at a quarry located near the intersection of
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197
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Patterson and Brandon Roads,
south of Joliet, Will County, Illinois.
In its second Amended Complaint,
the State alleges that Edison vio-
lated Rule 202(b) (1)
of the Solid Waste Regulations, Chapter
7,
Illinois Pollution Control Board Rules and Regulations,
and Section
21(e)
of the Environmental Protection Act
(Act)
since July
27, 1974,
in that Edison caused or allowed refuse fly ash from the company’s
Joliet Station Power Plant to be deposited at the quarry site without
first having obtained an operating permit from the Illinois Environ-
mental Protection Agency
(Agency).
In Count II the State alleges
Edison has violated Section 21(f)
of the Act in that it disposed of
its refuse fly ash at the aforementioned solid waste management site
which does not meet the requirements of the Act or Regulations
in
that the site does not have a permit nor is proper cover provided for
the refuse there deposited.
A hearing was held in this matter on
May 24,
1976 at which a proposed Stipulation of Fact was presented to
the Board by both parties.
The Board hereby accepts the proposed
Stipulation of Fact.
The essential issue of this case
is whether or not Edison
is
required by law to I~iave a permit issued by the Agency for its solid
waste disposal site~ The Stipulation of Fact
(Stipulation)
filed
June 10, 1976 indicates that Edison has been disposing of combustion
by-products generated at its Joliet Station
in a leased part of
Lincoln Stone Quarry since approximately 1963.
The combustion by-
products disposed of in this quarry are non—putrescible substances
consisting entirely of fly ash and bottom ash generated by burning
coal at the Joliet generating station.
These combustion by-products
consist primarily of oxides of silicon,
iron,
and aluminum with a
variety of oxides of other metals,
particularly boron,
in trace
amounts.
Nothing other than the combustion by-products generated
at the Joliet Station are disposed of at the quarry site.
Approxi-
mately 280,000 tons of the combustion by—products are deposited in
the quarry every year by sluicing the material from the generating
station with water pumped from the Des Plaines River.
The deposits
are either saturated with or covered by water at all times,
the
supernatant flowing by gravity to a sump area in the quarry where
it
is collected and pumped back into the River
(Stip.
Para.
18)
*
Pursuant to the Solid Waste Regulations promulgated by the Board
on July
19,
1973, Edison proceeded to submit an application to the
Agency for a permit
to operate a solid waste disposal site at the
Lincoln Quarry
(Stip.,
Para,
21).
Subsequent to the submission of
the permit application by Edison, which was denied by the Agency
pending receipt of further information, Edison and the Agency
have been in constant communication concerning the permit application
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198
—3—
with the
result
that,
at the time of the Stipulation, Edison had at
no time received
a permit from the Agency to operate this site
(Stip. Para.
22—36).
In addition, Edison has never,
at any time,
provided daily cover other than the water as noted previously for
the combustion by-products disposed of at the site (Stip. Para.
18
& 22)
*
On January 22,
1976,
a decision was made by Edison and the
Agency that a new application was in order due to the time that has
elapsed since Edison’s first application and the changes that occurred
in the quarry in that time
(Stip. Para.
37).
Additional testing has
been done by Edison on the site including a continuous well monitor-
ing program.
(Stip. Para.
39
& 40).
In addition,
Edison has pro-
posed a plan to the Agency to replace its fly ash sluicing system with
a dry collection system.
When this
is accomplished, Edison proposes
to dispose of the fly ash at the Joliet Station either as a commercial
substance or a dry waste product at some other location.
It
is pro-
posed that this system would be completed in early
1979.
(Stip.
Para.
41).
On September 14,
1976, Edison filed with the Board a copy of a
permit received by Edison on September
9,
1976 from the Agency for the
Lincoln Stone Quarry site.
The central issue of this case is whether or not Edison is
required to have a permit for its solid waste disposal site at the
quarry.
Edison has contended throughout this case that since the
refuse disposed of at Lincoln Quarry is
generated by its own activi-
ties,
it is not required to obtain
a permit by virtue of the exemption
clause contained in Section
21(e)
of the Environmental Protection
Act
(Act).
Section 21(e)
of the Act states
in pertinent part that no
person shall:
conduct any refuse collection or refuse disposal
operations except for refuse generated by the
operators own activities without a permit granted
by the Agency...
The Board in response to a Motion to Dismiss has rejected Edison’s
exemption argument citing EPA v. City of Pontiac,
PCB 74—396,
18
PCB 303,
306
(August
7,
1975).
People of the State of Illinois
v.
Lincoln Stone Quarry,
Inc.,
et al., PCB 75-368 Interim Opinion and
Order, November
6,
1975.
In Pontiac the Board set forth
its interpre-
tation of the exemption provision contained in Section 21(e)
of the
Act stating that:
section
21(e)
and its exemption must be interpreted
consistently with the purposes of the Act.
Title V,
24
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199
—4—
Section 20 states this purpose to be prevention of
pollution or misuse of land arising out of improper
refuse disposal,
To achieve this end the Regulations
establish a permit system controlling refuse-disposal
activities.
The intent of Section 21(e) was to exempt
minor amounts
of refuse which could be disposed of
without environmental harm on the site where it was
generated.
There was no intent to create a gap in
the permit system of the magnitude suggested by Pontiac.
To interpret the exemption as allowing the municipality
to dispose of any refuse it owns without a permit will
mean that large quantities of varied materials could
be indiscriminately deposited at a waste-disposal site.
This obviously circumvents both the permit system and
the purposes of the Act.
Id. at
306.
Edison argues that
the
Board’s interpretation of 21(e)
is inconsistent
the plain words of the Act, arose in a different factual context, and
ignores the rules of statutory construction.
Edison complain~
:i~eexemption language contained in Section
21(e)
is clear and unambiguous in that it obviously means what Edison
says it means,
The
Board
reaffirms its position in Pontiac that the
intent of Section
21(e)
was to exempt minor amounts of refuse which
could be disposed of without environmental harm on the site where it
was generated.
Edison
cites
an amendment to Section 21(e)
which was
adopted by the Illinois Legislature after the Pontiac decision was
issued and contends
that. the
Legislature thereby implicitly rejected
the Board’s
interpretation
that only operators disposing of small
quantities of non-environmentally harmful waste were exempt from the
permit requirements of Section 21(e).
The 1975
amendment to
Section 21(e)
of the Act states as follows:
The above exception shall not apply to any
hazardous refuse except that the exception
shall apply to any person engaged in agricultural
activity who is disposing of a substance which
would normally be classified as hazardous if the
substance was acquired for use by that person on
his
own
property.
For the purpose of this Section
“hazardous refuse” shall mean refuse with inherent
properties which make such refuse difficult or
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—
200
—5—
dangerous to manage by normal means including but
not limited to chemicals,
explosives,
pathological
wastes,
and wastes likely to cause
fire.
As Edison stated in its brief, the Pontiac Opinion was before the
Legislature when the amendment to 21(e) was executed.
If indeed the
Legislature did find the Board’s interpretation incorrect, it would
have been a simple matter to give us direction in the amendment.
In-
stead the Legislature went beyond Pontiac and stated that even small
amounts of refuse could not meet the exception should they be of a
hazardous nature,
a commonly accepted designation for particularly
dangerous pollutants.
The only exception to this Rule is
a person
engaged in agricultural activity,
a farmer, who is utilizing possibly
hazardous chemicals necessarily added to his land in order to produce
an effective crop yield.
The Board notes that a farm operation is
normally
a small
operation
using relatively small amounts of chemicals.
In addition,
the
Legislature
defined hazardous refuse for the purpose
of the Section
using as
examples chemicals, explosives,
pathological
wastes and waste
likely
to cause fire.
The Board notes that all of
these examples
are illustrative
of wastes not likely to be found in
gross quantities.
For the above reasons the Board finds that Edison’s disposal of
some 280,000 tons of material per year utilizing some 8,000 gallons
per minute of water
as a carrier,
is a proper subject for a permit
evaluation by the
Agency
charged with the duty to prevent the pollu-
tion and misuse of
land.
Since Edison does not come within the
exception under
21(e)
it
follows that it was necessary for Edison to
acquire an Agency
permit for the landfill operation.
The Board,
therefore,
finds
Edison
in
violation of Rule
202(b)
(1)
of the Regu-
lations
and
Section
21
(e)
of
the
Act
in
that
it
is
operating
its
facility without a permit.
Count
II
of
the
Complaint,
which
alleges
Edison
has
violated
the
Board’s
substantive
cover
rules
and
has
operated
without
a
permit
and
is
therefore
in
violation of Section
21(f)
of
the
Act,
presents
some
interesting issues.
Having found Edison in violation of 21(e)
of the
Act in that it
is operating without a permit, the Board can find no
useful purpose in finding Edison
in violation of a different part of
the same Section
for the
same reason.
With regard to the cover rules,
the Stipulation does
not
address this issue sufficiently for the Board
to make an
intelligent
decision,
Certainly under these unusual condi-
tions,
i.e., sluicing a relatively solid material into an area where
it stands under
water
or at least saturated for some time,the permit
would have addressed
this
question, and a reasonable interpretation of
daily and intermediate cover would have ensued.
The question that
24—201
—6—
comes
immediately to mind is whether the water or the material itself
constituted an adequate daily cover.
The Stipulation indicates that
the final cover was probably
adequate,
but
again
the
facts
in
the
Stipulation are lacking.
The Board will therefore dismiss Count II of
the Complaint.
The Stipulation and the Exhibits indicate that Edison, not with-
standing its contention that a permit was not necessary, did indeed
make a
good
faith
effort
to acquire a
permit
from
the
Agency.
Efforts
were made to insure
the
lack of environmental harm to the surrounding
ground water,
test wells were driven and tests conducted, the results
of which indicate no apparent environmental damage has occurred.
In-
deed,
as
of
September
1,
1976,
Edison
has
been
granted
a
permit
to
develop
the
disposal site at Lincoln
Stone
Quarry.
Considering
the
lack
of
environmental
harm,
the
cooperation
shown
the
Agency
by
Edison,
and
the
subsequent issuance of a
permit
by
the
Agency
to
Edison,
the
Board
finds that a
penalty
in this
case
would
achieve
nothing
in
furtherance of the
objectives
of
the
Act.
This Opinion
constitutes
the finding of facts and conclusions of
law
by
the
Board in
this
matter.
ORDER
It
is the
Order of the Pollution
Control Board that:
1.
Commonwealth Edison Company
is
found
in
violation
of
Rule 202(b) (1)
of
the
Solid
Waste Regulations and Section
21(e)
of the
Environmental
Protection
Act
in
that
it
operated a solid
waste
management site without an operating
permit issued by
the
Illinois Environmental Protection Agency.
2.
Count II of
the
Complaint
is
hereby
dismissed.
I,
Christan
L.
Moffett,
Clerk of
the
Illinois
Pollution
Control
Board,
hereby
certify
the
above
Opinion
and
Order
were
adopted
on
the
___________day
of4~~.
1976
by
a
vote
of
*
~hristan L. Moffe
Clerk
Illinois
Polluti
ontrol
Board
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