ILLINOIS POLLUTION CONTROL BOARD
October 25, 1990
CENTRALIA ENVIRONMENTAL
)
SERVICES, INC.,
)
Petitioner,
)
PCB 89—170
)
(Permit Appeal)
v.
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
RONALD A. NIEMANN APPEARED ON BEHALF OF PETITIONER.
BRUCE L. CARLSON APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter comes before the Board on a petition for review
filed October 23, 1989 by Centralia Environmental Services, Inc.
(CESI) in which CESI contests the Illinois Environmental Protection
Agencyts (Agency) denial of a supplemental development permit and
a supplemental operating permit for Area IV of CESI’s landfill
site. Hearings were held on December 18, 19, 20, 27 and 28 of 1989
at which no members of the public attended.
STATEMENT OF FACTS
CESI’s regional pollution control facility is located on a
forty acre parcel of land near Centralia, Illinois in Marion
County. The site was initially permitted for development as a non-
regional pollution control facility on February 9, 1984. (R. at
147-57.) This permit was issued to Industrial Salvage, Inc. and
John Prior, president, as owner and operator. (Id.) Progressive
development of the site was to occur throughout six portions of the
site designated as Areas I through VI.
(~.
at 34-40.)
In 1986, the development permit was transferred to Jackson
County Landfill, Inc., d/b/a Industrial Services Inc., as operator.
Ownership of the property itself remained, and still remains, with
John Prior. The development permit was modified to allow site
development as a regional pollution control facility. Also in
1986, an operating permit was issued for Area I to Industrial
115—389
2
Salvage, Inc. as owner and Jackson County Landfill, Inc. d/b/a
Industrial Services, Inc. as operator. ~ Ex. 8 at 674—90.)
Area I was permitted for disposal of municipal waste and non-
hazardous special waste; however, the disposal of special wastes
which would yield fluid when subjected to the “paint filter test”
was prohibited. Jackson County Landfill Inc. received a
supplemental permit to allow the “retrofitting” of a leachate
collection system so that liquid special waste could be accepted
at the site. After failure to obtain Agency approval of the
leachate collection system, the operator obtained a supplemental
permit allowing for the removal of the leachate system.
On January 28, 1988, CESI purchased the business assets of
Jackson County Landfill, Inc.
(~.
at 937.) CESI submitted an
application for transfer of all existing permits and for an
operating permit for Areas II and III.
(~.
at 835—959.) At that
time, the Agency and William T. Schmidt, president of CESI,
discussed the need to investigate the alleged unauthorized disposal
of waste in Area II and the need for remedial action to address
allegations by a former employee that waste had been disposed of
below grade in a 50 feet by 500 feet section located in Areas III
and IV (this area will be referred to as the “investigation area”
or “remediation area”). (Id. at 835—36, 868-69, and 883.)
Existing permits were transferred to CESI and the Agency issued
CESI an operating permit for Areas II and III on March 21, 1988
(Permit No. 1987—299—SP). (P. at 979-1007.) In granting CESI’s
permit, the Agency required that CESI conduct a remedial
investigation of the 50 feet by 500 feet suspect area pursuant to
an Agency—approved plan of action. (R. at 980.) The Agency also
required CESI to file a report detailing the extent of waste
disposed of below grade. (P. at 981.) Additionally, the Agency
imposed the condition that “in the event that the boring program
reveals waste has been disposed of ‘below grade’, no operating
permits for additional areas of this landfill will be issued by the
Agency until an Agency approved remedial action plan is
satisfactorily implemented pursuant to an issued supplemental
development permit” (Permit No. l987—299-SP condition no.
2(c)(ii)). (R. at 981.)
On June 14, 1988, CESI submitted a plan of action outlining
the procedures for investigation and remediation of the suspect
area as required by the March 21, 1988 permit. (P. at 1017-27.)
On July 7, 1988, the Agency approved the plan of action, subject
to certain modifications and clarifications. (P. at 1024-25.)
After the removal process began in August of 1988, the Agency
requested that CESI aid in exploring allegations that hazardous
wastes had been disposed of in the area by setting aside any drums
encountered in the excavation process. Twelve drums were set aside
for Agency inspection. Analysis of one of the drums revealed the
presence of organic solvents, including toluene, ethylbenzene and
substituted benzenes. (Id. at 537-42.) In October of 1988, CESI
contacted the Agency to discuss the waste removal process and
115—390
3
boring program for the investigation area. CESI indicated that its
investigation revealed that it was likely that waste had been
deposited below permitted levels and sought permission to remove
the waste. The Agency agreed that the waste should be removed but
also informed CESI that backfilling was not to occur until the
boring program was completed. However, on October 5, 1988, CESI
began filling the excavation area with recompacted clay. Following
completion of the backfilling, borings were conducted in the
investigation area. CESI submitted a report detailing the results
of the investigation which stated that the borings did not
encounter any waste. (R. at 1140-42.)
On June 29, 1989, CESI submitted a supplemental development
permit application as required by the March 21, 1988 permit
condition regarding the remediation plan. (R. at 1315-18.) On
September 21, 1989, CESI submitted an addendum to the application
seeking to strike condition no. 2(c)ii from the supplemental permit
for Areas II and III (Permit No. 1987—299-SP). On September 27,
1989, for reasons to be discussed below, the Agency denied CESI’s
application and request to strike. (R. at 1494-96.) On August 25,
1989, CESI submitted an application for a supplemental operating
permit for Area IV. (P. at 1425-65.) For reasons to be addressed
below, on October 6, 1989, the Agency denied CESI’s application.
(R. at 1504—05.)
On October 23, 1989, CESI filed its petition for review with
the Board contesting the Agency’s denial of both the supplemental
development permit and the operating permit. On May 10, 1990, the
Board entered an interim opinion and order finding that the Agency
had failed to comply with Section 39(a) of the Act which requires
that the Agency set forth in its denial statements the specific
sections of the Act and regulations which may be violated if the
permit were granted. (Centralia Environmental Services v. IEPA,
PCB 89-170 (May 10, 1990).) The Board remanded the matter to the
Agency to cure this defect. On June 4, 1990, the Agency filed its
amended 39(a) statement and on July 5, 1990, CESI filed its
supplemental brief in response to the amended 39(a) statement.
PRELIMINARY ISSUES
Before addressing the substantive merits of this permit
review, several matters must be addressed. In its petition for
review, CESI requests that the Board “strike the requirement that
the Petitioner cannot receive an operating permit for Area IV until
a supplemental development permit is issued as a condition of the
March 21, 1988 operating permit
... •“
(Petition for Review at 1.)
As noted above, section 40(a) (1) of the Act provides that an
applicant may seek Board review of the Agency’s imposition of a
condition in a permit where the applicant files a petition for a
hearing before the Board within 35 days of the Agency’s permit
decision. (Ill. Rev. Stat. 1987, c. 111 1/2, par. l040(a)(l).)
CESI failed to seek Board review of the Agency’s imposition of
115—39 1
4
condition no. 2(c)ii in the March 21, 1988 permit in a timely
manner. More than two years have passed since the Agency issued
the permit imposing the condition. Therefore, CESI has waived its
right to challenge the imposition of that condition.
Additionally, in its post-hearing brief, CESI has included a
“Memorandum In Support Of Acceptance Into Evidence Of Petitioner’s
Exhibit No. 50.” CESI requests that the Board admit exhibit 50
into evidence and overrule the hearing officer’s decision that this
evidence is irrelevant and should not be admitted. Exhibit 50 is
a study prepared by CESI’s engineering consultants which details
and summarizes the Agency’s issuance of administrative citations
to “landfills or dumps” between October of 1986 through May of
1989. The Agency objected to the admittance of this evidence on
the basis that it is irrelevant and beyond the scope of rebuttal.
(Tr. at 1095.) The hearing officer deemed the evidence irrelevant
and sustained the Agency’s objection. (Tr. at 1099.)
CESI argues in its memorandum in support of the introduction
of this evidence that such evidence should be admitted as rebuttal
to the Agency’s focus at hearing on aspects of CESI’s conduct which
may properly be the subject of an administrative citation. CESI
asserts that such matters are not a basis for a permit denial, but
states that “to the extent that the Board would consider the
Agency’s arguments regarding operational history, CESI prays
that the Board will accept exhibit No. 50
...
which goes directly
to the relative value of those citations.”
CESI had ample opportunity at hearing to respond to the
Agency’s focus on the issuance of administrative citations to CESI
and to raise relevancy objections. The Board fails to see how the
evidence sought to be introduced by CESI relating to the Agency’s
issuance of administrative citations, pursuant to section 31.1 of
the Act, to other pollution control facilities throughout the state
is relevant to the inquiry at hand. (Ill. Rev. Stat. 1987, ch. 111
1/2, par. 1031.1.) The issue presented here is whether CESI has
demonstrated that its applications, as submitted to the Agency,
establish that no violation of the Act or Board regulations would
occur if the permits were granted. This Board will not dilute the
record with information which is irrelevant to this inquiry.
Therefore, the Board upholds the hearing officer’s determination
that the evidence contained in exhibit 50 is irrelevant and should
not be admitted into evidence.
AMENDED 39 (a) STATEMENT
As noted above, the Board entered an interim opinion and order
on May 10, 1990 remanding this matter to the Agency to cure
deficiencies in its 39(a) statement. The reasons for the Board’s
interim opinion and order must again be discussed because CESI now
challenges the adequacy of the Agency’s amended 39(a) statement.
In its May 10, 1990 opinion and order, the Board found that the
115—392
5
Agency failed to comply with Section 39(a) of the Act which
requires that the Agency provide the applicant with a detailed
statement of the reasons for denying a permit. Section 39(a) also
requires that such statement include the sections of the Act and
regulations which may be violated if the permit were granted.
(Ill. Rev. Stat. 1989, ch. 111 1/2, par. 1039(a).) The Agency’s
initial 39(a) statement failed to set forth the specific sections
of the Act and regulations in support of permit denial. The Board
noted that the purpose of section 39(a) is to provide the applicant
with the specific information upon which the Agency based its
denial so that the applicant may prepare his case with an eye
toward the issue on review, i. e., whether the applicant has
demonstrated that no violation of the Act or regulations would
occur if the permit were granted. The Board concluded that
fundamental fairness dictates that the Agency give notice of the
statutory and regulatory bases for permit denial. In support of
its decision to remand the matter to the Agency, the Board also
concluded that if it were to “plug-in” the sections of the Act and
regulations which would support permit denial at the Board review
level, such conduct would violate the separation of permitting
functions between the Agency and the Board as set forth in the Act.
(Ill. Rev. Stat. 1989, ch. 111 1/2, pars. 1004(g), 1039 and 1040.)
Therefore, the matter was remanded. The Agency filed an amended
39(a) statement containing references to the Act and regulations
supporting denial. CESI chose not to exercise its opportunity, as
provided in the Board’s interim opinion and order, to request an
additional hearing, but did file a supplemental brief in response
to the amended 39(a) statement.
With this background, the Board addresses CESI’s contention
that the Agency’s amended 39(a) statement is inadequate and fails
to comply with Section 39(a) of the Act. The Agency’s amended
statement is identical to its original 39(a) statement except that
the amended statement sets forth specific sections of the Act and
regulations in support of each of the reasons for denial. In order
to adequately address CESI’S challenge to the amended denial
statement, the amended statement is summarized below:
Supplemental Development Permit
1. “No hydrogeologic justification has been provided
demonstrating that the one proposed additional
groundwater monitoring well is adequate (and properly
located) to detect any groundwater contamination
resulting from filling the trench in Area IV with waste.
(Ill. Rev. Stat. 1989, ch. 111 1/2, pars. 1012(a),
1012(d), 1021(d) and 1039(a); 35 Ill. Adm. Code
807.202(a), 807,205(a) and (c), 807.207(a), 807.301,
807.313, 807.314(e), 807.315, 807.316(a) (5), (a) (7) and
(a)(8) and 807.502.)
2. “CESI’s application suggests that the possibility of
115—393
6
groundwater contamination by organic compounds is not of
concern and therefore proposes to construct the
additional well using PVC and to omit organics as
monitoring parameters for the groundwater.
The
possibility of organic contamination is of substantial
concern and consequently the groundwater must be
monitored for organics.. Constructing monitoring wells
of PVC is not acceptable for purposes of conducting such
monitoring.” (Ill.Rev. Stat. 1989, ch. 111 1/2, pars.
1012(a), 1012(d) and 1039(a); 35 Ill. Adm. Code
807.202(a), 807.205(a) and (c), 807.207(a), 807.301,
807.313, 807.314(e), 807.315, 807.316(a) (7) and (a)(8),
807.316(a) (12) and 807.502.)
3. Pursuant to 35 Ill. Adm. Code 807.661, an annual
evaluation of the trust fund serving as the instrument
of financial assurance for closure/post—closure care
should have been submitted to the Agency by February 23,
1989. Also, documentation of an annual payment of the
trust fund should have been submitted by March 25, 1989.
The Agency has not received either of these submittals.”
(Ill.Rev.Stat. 1989, ch. 111 1/2, pars. 1021(d), 1021.1
and 1039(a); 35 Ill. Adm. Code 807.205(a) and (c),
807.207(a), 807.301, 807.302, 807.601 and 807.661.)
Operating Permit for Area IV
1. The boring logs and permeability tests provided with
the application were not adequate to demonstrate the
presence of the clay liner with a minimum thickness of
10 feet and a maximum permeability of 1x10 -7 cm/sec
required by condition no. 6 of Permit No. l987-194-Sp
because: (1) the location of boring no. 7 (monitoring
well) is not given on the sketch showing the location of
the test probes; (2) the surface elevations of the probes
are not provided on the boring logs; (3) the brown sandy
clay found between 7 and 10 feet of depth of boring ST-
4 has not been tested for permeability; and (4) boring
logs nos. 9-11 of the remedial action report dated
October 31, 1988 show porous materials within ten feet
of the top of the liner.
(~.
at 1504.) (Ill. Rev.
Stat. 1989, ch. 111 1/2, pars. 1012(a) and (d), 1021(d)
and 1039(a); 35 Ill. Adm. Code 807.205(a) and (c),
807.207, 807.301, 807.302, 807.313, 807.314(e), 807.315
and 807.316(b).)
2. A September 25, 1989 pre-operational inspection
performed by the Agency revealed the following
deficiencies: (1) material deposited on top of the clay
liner in the eastern quarter of Area IV so that no visual
inspection could be made; and (2) failure to construct
drainage controls and haul roads in accordance with the
115—394
7
plans included in Permit No. 1984-3-DE.
(~.
at 1504-
05.) (Ill. Rev. Stat. 1989, ch. 111 1/2, pars. 1012(a)
and (d), 1021(d) and 1039(a); 35 Ill. Adm. Code
807.202(a), 807.205(a), 807.207, 807.301, 807.302,
807.313, 807.314(b) and (e), 807.315 and 807.316(b).)
3. Pursuant to 35 Ill. Adm Code 807.661, the Agency
stated that CESI failed to submit an annual: evaluation
of the trust fund serving as the instrument of financial
assurance for closure/post—closure care by the requisite
date of February 23, 1989 and failed to submit
documentation of an annual payment to the trust fund by
March 25, 1989. (Id. at 1505.) (Ill. Rev. Stat. 1989,
ch. 111 1/2, pars. 1021(d), 1021.1 and 1039(a); 35 Ill.
Adm. Code 807.205(a) and
(C),
807.207(a), 807.301,
807.302, 807.601 and 807.661.)
4. CESI had not obtained a supplemental development
permit as required by condition no. 2(c)ii of Permit No.
1987—299—SP for the remedial area and, therefore, could
not obtain an operating permit for Area IV.
(u.)
(Ill.
Rev. Stat. 1989, ch. 111 1/2, pars. 1012(a) and (d) and
1021(d) and 1039(a); 35 Ill. Adm. Code 807.202(a),
807.205(a), 807.207, 807.301, 807.302, 807.313,
807.314(e), 807.315 and 807.316(b).)
5. Since Area IV is an integral part of this facility,
an operating permit for it cannot be issued until the
existing problems of Areas I, II and III have been
remediated. These problems include the increased
potential for erosion, run—off, leachate migration and
groundwater contamination caused by over—filling and
over-steepening the slopes of Areas I, II and III.
(~.)
(Ill. Rev. Stat. 1989, ch. 111 1/2, pars. 1012(a) and
(d)
,
1021(p) (6), (p) (7), (p) (9) and (p) (10) and 1039(a);
35 Ill. Adm. Code 807.201, 807.202(a), 807.205(a) and
(1), 807.207, 807.210, 807.301, 807.302, 807.303,
807.305, 807.310(b), 807.313, 807.314(e), 807.315,
807.316(b), 807.502, 807.504 and 807.621(e).)
CESI argues that the amended denial statement does not satisfy
principles of fundamental fairness and that “the Board and CESI
remain in the dark as to the actual statutory and regulatory basis
for denial
... .“
(CESI Supp. Brief at 5.) CESI argues that the
Agency has “thrown the book” at CESI “with instructions to CESI
and the Board to ‘take your pick’~and that by so doing, the Agency
has deprived CESI of its opportunity to meet its burden of proof
on this permit appeal.
(Lc~.
at 5, 7.) According to CESI, “the
manner of itemizing possible violations
...
does not permit CESIJ
the chance to refute all the possible combinations.”
(~.
at 8.)
CESI also alleges that the amended letter is inadequate because it
fails to specify
“j~y
the Act and regulations might not be met if
115—395
8
the permits were granted, as is clearly required by Section
39(a)(4).” (Id. at 5—6.)
The Board recognizes that in amending its 39(a) statement,
the Agency has cited numerous sections of the Act and Board
regulations which it states may be violated if the permits were
granted. The “Section 39(a) denial statement requirements” are
designed to provide the applicant with sufficient information to
determine the bases for the Agency’s permit denial. (City of
Metropolis
V.
IEPA, PCB 90-8 (February 22, 1990).) The information
in the denial statement frames the issues on review should the
applicant chose to challenge the Agency’s decision. In a permit
appeal review before the Board, the burden of proof is on the
applicant to demonstrate that the reasons for denial detailed by
the Agency in its 39(a) denial statement are inadequate to support
a finding that permit issuance will cause a violation of the Act
or regulations. (Technical Services Co.. Inc. v. IEPA, PCB 81-
105 at 2 (November 5, 1981).)
CESI’s challenge to the amended denial statement appears to
be twofold: (1) that the sheer number of cited sections of the Act
and regulations renders the amended denial statement inadequate
under Section 39(a); and (2) that the amended denial statement
fails to comply with Section 39(a)(4). Contrary to CESI’s
contention, the number of cited sections of the Act and regulations
alone does not invalidate, or render inadequate, the Agency’s
amended denial statement. Given that this matter is dealing with
two permit denials and eight stated reasons for denial, it is
conceivable that numerous sections of the Act and regulations may
be involved. CESI has made no attempt to support its contention
that the Agency has simply “thrown the book” at CESI by arguing
which sections of the Act and regulations cited by the Agency are
an erroneous bases for permit denial. The Board cannot say that
an applicant is denied fundamental fairness merely because the
Agency’s denial statement is complicated and requires a detailed
analysis by the applicant in order to present his case on review.
Therefore, the Board rejects CESI’s contention that the ar~ended
denial statement fails to comply with Section 39(a) simply because
the denial statement details numerous sections of the Act and
regulations.
CESI’s second contention is that the amended denial statement
fails to comply with Section 39(a) (4) of the Act. Section 39(a) (4)
provides that the denial statement shall include “a statement of
specific reasons why the Act and regulations might not be met if
the permit were granted.” (Ill. Rev. Stat. 1989, ch. 111 1/2, par.
l039(a)(4).) The amended denial statement is paraphrased above.
The Board finds that the eight points contained in the amended
denial statement coupled with the cited section of the Act and
regulations sufficiently set forth the reasons why the Act and
regulations might not be met if the permits were granted.
115—396
9
DISCUSSION
Section 40(a) (1) of the Illinois Environmental Protection Act
(Act) provides that an applicant who has been denied a permit may
petition the Board for a hearing to contest the Agency’s denial of
the permit application. (Ill. Rev. Stat. 1987, c. 111 1/2, par.
l040(a)(1).) In such a permit appeal, the sole question before the
Board is whether the applicant proves that the application, as
submitted to the Agency, demonstrated that no violation of the Act
would occur if the permit was granted. (Joliet Sand & Gravel v.
IPCB, 163 Ill. App. 3d 830, 516 N.E.2d 955, 958 (3d Dist. 1987).)
Before beginning its analysis, the Board notes that its review of
this complex case has been made even more difficult by both parties
failure to set forth complete arguments on the issues presented and
their failure to cite to the record in support of the arguments
raised.
To properly review this matter, it is necessary to understand
how the permit of March 21, 1988 (Permit No. l987-299-SP), which
transferred the existing permits to CESI and permitted operations
of Areas II and III, relates to the two instant permit denials.
As a result of concerns that waste had been improperly disposed of
above and below grade in the remediation area, when transferring
the existing permits and granting the operating permits for Areas
II and III, the Agency imposed several conditions in the March 21,
1988 permit. (R. at 979-989.) The Agency required that an
approved remedial investigation of this 50 x 500 feet area take
place and that all “above-grade waste be removed in accordance with
an Agency approved plan of action.” (P. at 980.) In the event
that this investigation revealed that waste was disposed of below
grade, CESI was to submit a report detailing the extent of waste
disposed of below grade (Special Condition 2(c)(ii)). (R. at 981.)
This condition also required that “this report is to include a
remedial action proposal and be
the form ~ ~ supplemental
development permit application.” (P. at 981.) Furthermore, “no
operating permits for additional areas of this landfill would be
issued by the Agency until an Agency approved remedial action is
satisfactorily implemented pursuant ~
~
issued supplemental
development permit.” (P. at 981 (emphasis added).)
CESI submitted a plan of action to investigate and remediate
the suspect area which was approved as modified by the Agency.
CESI asserts that the Agency directed CESI to do things not
required in the approved plan and the Agency asserts that CESI
failed to comply with all the terms of the approved plan of action.
On June 29, 1989, CESI submitted an application for a
supplemental development permit “to fulfill Special Condition
2(c)(ii) of Permit l987—299—SP i.e., the March 21, 1988 permit.”
(P. at 1315.) This application reported the extent of waste
disposed of below grade and set forth a remediation plan.
(~.)
The Agency denied CESI’s application for a supplemental development
115—397
10
permit. (R. at 1494-96.) CESI then submitted an application for
an operating permit for Area IV. (Agency Pee. at 1425—26.) In
denying the supplemental operating permit for Area IV, the Agency
gave as one of its denial reasons, the failure to satisfactorily
implement a remedial action for the suspect area in accordance with
a supplemental development permit as required by Condition No.
2(c)(ii) of the March 21, 1989 permit. (Agency Rec. at 1505.)
Because a supplemental development permit was not obtained, the
Agency denied the application for a supplemental operating permit
for Area IV.
(a.)
The above discussion is intended to illustrate how the instant
permit denials are tied to the conditions i2nposed in the March 21,
1988 permit. An understanding of this interrelatedness is also
important in addressing CESI’s contention that the Agency has
improperly used the permit process as a substitute for enforcement.
Because the Board agrees to some extent with this contention, we
will discuss first those denial reasons which the Board finds to
be an improper use of the permit process as a means of enforcement
and, therefore, an insufficient basis for permit denial.
Denial reason no. 4 relating to the supplemental operating
permit refers to condition 2(c) (ii) of permit no. 1987-299—SP and
basically states that the operating permit is denied because the
supplemental development permit for remedial action was denied.
As noted above, CESI waived its right to challenge the imposition
of condition 2(c) (ii) in the March 21, 1988 permit. However, this
waiver does not prevent the Board, in the instant permit appeal,
from reviewing the propriety of the Agency’s denial reason premised
on that same condition. The Board finds that condition 2(c)(ii),
which holds hostage any future operating permits pending Agency
approval of the remedial plan for dealing with below-grade waste
in the remediation area, constitutes an impermissible use of the
permit process as an enforcement tool. As such, the denial reason
no. 4, which is premised upon condition 2(c)(ii), is an
insufficient basis for denying the supplemental operating permit
for Area IV.
The fifth reason given by the Agency for denying the
supplemental operating permit for Area IV is that “since Area IV
is an integral part of this facility, an operating permit for it
cannot be issued until the existing problems of Areas I, II and III
have been remediated.” Permit issuance is mandatory upon proof
that a particular portion of a facility will not cause pollution.
(Waste Management v. IEPA, PCB 84-45, 84-61 and 84-68 at 37
(October 1, 1984).) Any existing problems with Areas I, II and III
should be addressed by the Agency’s enforcement of those permits
already issued to the three areas of the facility. If the Agency
has groundwater concerns as a result of the operation of areas
other than Area IV, the proper mechanism to address those concerns
is an enforcement action rather than the denial of a permit for
Area IV. The Board has repeatedly stated that permit denial cannot
115—398
11
take the place of an enforcement action. (See e.g., Waste
Management v. IEPA, PCB 84-45, 84—61 and 84-68 (October 1, 1984);
Frink’s Industrial Waste, Inc. v. IEPA, PCB 83-10 (June 30, 1983).)
The denial of a permit for Area IV should stand or fall on whether
CESI has proven that no violations of the Act or regulations would
occur if that area was issued a permit; problems with the existing
permitted areas should not be determinative of whether Area IV
should be issued a permit. Therefore, the Board finds that denial
reason no. 5 is an insufficient basis for denying the supplemental
operating permit.
Denial reason no. 2 pertaining to the supplemental operating
permit for Area IV provides that a pre—operational inspection of
Area IV revealed the following deficiencies: (a) “material has
been deposited on top of the clay liner in the eastern quarter of
Area IV and therefore no visual inspection could be made. All
waste disposed of
...
must be removed and disposed of at a properly
permitted facility”; (b) “the drainage control structures
...
and
the haul road have not been constructed in accordance with the
plans included in Permit No. l984-3—DE.” This denial reason
appears to have been taken almost verbatim from the inspector’s
report. (Agency Rec. at 1486.) Subsection (a) refers to conduct
which has already taken place which the Agency apparently feels was
improper, ~
that waste was deposited on top of the clay liner.
The Agency states in its brief that “t)his was not waste from the
investigation area, but was rather waste deposited in Area IV by
CESI without a permit.” (Agency Brief at 14.) The Board finds
this allegation is properly the subject of an enforcement action
and that such allegations are an insufficient basis for permit
denial. Moreover, to the extent that such conduct is properly the
subject of a permit denial, this matter appears to be addressed by
denial reason no. 1 relating to the adequacy of the clay liner.
Similarly, subsection (b) is based upon an alleged failure to
comply with the terms of a previously granted permit. As such,
these matters are the subject of an enforcement action rather than
a bases for permit denial.
The Agency has cited 35 Ill. Adm. Code 807.601 and 807.661
as a basis for denying both the supplemental development permit and
the supplemental operating permit for Area IV. Section 807.601
provides that “financial assurance is required of all sites which,
on or after March 1, 1985, accept waste for disposal
... .“
Section 807.661 provides that financial assurance may be met by
establishing a trust fund. The Agency states that CESI has
violated section 807.661 by failing to submit “an annual evaluation
of the trust fund
...
by February 23, 1989” and by failing to
provide “documentation of an annual payment of the trust fund
by March 25, 1989.”
On February 23, 1988, CESI established a trust fund for
financial assurance. (Agency Rec. at 938-48.) The calculated
closure and post—closure amounts were based upon those costs
115—399
12
associated with Areas I, II and III which were permitted in March
of 1988. (I~. at 940—42, 951-53.) While the Agency has not
specifically stated the subsection of section 807.661 that would
be violated if the permits were granted, based upon the date the
trust fund was established and the dates stated in the Agency’s
denial letters, the Agency is apparently relying on subsections
(d) (5) and (e) of section 807.661. Section 807.661(d) (5) provides
that “subsequent annual payments must be made no later than 30
days after each anniversary of the first payment”; hence, the
Agency’s statement that no annual payment was received by March 25,
1989. Section 807.661(e) provides that “the trustee must
evaluate the trust fund annually as of the day the trust was
created
...
and must notify the operator and the Agency of the
value within 30 days after the evaluation date.”
CESI admits that it has failed to make a timely subsequent
annual payment into the trust fund, stating that approximately
$4,000 needs to be deposited into the fund. (Tr. at 698-700; CESI
Brief at 28-29.) CESI argues, however, that its failure to comply
with the requirements of section 807.661(d) (5) and (e) is not a
proper basis for denying its permit applications. According to
CESI, the “trust fund requirement” is a “pre—existing condition
unrelated to the permit request.”
(~.)
CESI asserts that, to the
extent it is in violation of the financial assurance requirements,
such a violation is properly the subject of an enforcement action
rather than a reason for denying its permit applications.
Additionally, CESI cites section 39(a) of the Act which provides
that “except as otherwise provided in this Act, a bond or other
security shall not be required as a condition for the issuance of
a permit” and asserts that this section prohibits denial of the
applications for the failure to submit adequate financial
assurance. (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1039(a).)
CESI’s reliance upon section 39(a) is misplaced. Section
39(a) specifically provides that no bond or security shall be
required by the Agency as a condition to a permit unless the Act
so provides. Regarding waste disposal operations, the Act does so
provide as evinced by section 21.1(a) of the Act. (Ill. Rev. Stat.
1987, ch. 111 1/2, par. 1021.1(a).) Therefore, the Board rejects
CESI’s argument that section 39(a) of the Act prohibits requiring
CESI to post security as a permit condition.
The Board now addresses CESI’s argument that failure to
comply with the financial assurance provisions is not a proper
basis for permit denial. Section 21.1(a) of the Act provides that
no person shall conduct any waste disposal operation without first
posting a performance bond or other security for the purpose of
insuring closure of the site and post-closure care in accordance
with the Act and regulations adopted by the Board. (Ill. Rev.
Stat. 1987, ch. 111 1/2, par. 1021.1(a).) Subpart F of the Board’s
regulations sets forth the procedures for satisfying the financial
assurance requirement of section 21.1 of the Act and section
115— 4 00
13
807.661 of that subpart provides for the establishment of a trust
fund as an alternative means for meeting those requirements.
“The operator must make the first annual payment prior to the
initial receipt of waste for disposal
...
and
...
must also,
prior to such receipt of waste, submit to the Agency a receipt from
the trustee for the first annual payment.” (35 Ill. Adm. Code
807.661(d) (4).) As noted above, subsequent annual payments are due
no later than 30 days after each anniversary of the first annual
payment. (35 Ill. Adm. Code 807.661(d) (5).)
Although the Board disagrees with CESI’s argument relating to
section 39(a), the Board does agree that CESI’s failure to update
its annual payment in accordance with section 807.661(d) (5) is not
a proper basis for denying either permit application. CESI’s
obligation to submit a subsequent annual payment exists independent
of its desire to obtain a supplemental development permit and a
supplemental operating permit. Any initial additional payments
required to be paid into the trust fund as a result of issuance of
the two requested permits would not be governed, at this time, by
section 807.661(d) (5). If the requested permits were granted they
would of necessity contain the condition that “the operator provide
financial assurance in accordance with Subpart F.” (35 Ill. Adm.
Code 807.206(c)(6).) Financial assurance becomes due “before
receipt of waste for disposal”, not at the time of filing an
application for a permit. (35 Ill. Adm. Code 807.602.) It cannot
be said that issuance of the supplemental development permit and
the operating permit would cause a violation of section
807.66l(d)(5). By denying CESI’s applications for a supplemental
development permit and operating permit on the basis that it is in
arrears in the trust fund, the Agency is improperly attempting to
do by way of permit denial what is properly the subject of an
enforcement action. Again, this Board has consistently rejected
the propriety of such action on the part of the Agency. (See, ~ThU
v. IEPA, PCB 84—45, 84—61 and 84—68 (consolidated) at 36—38;
Frink’s Industrial Waste, Inc. v. IEPA, PCB 83—10 at 13 (October
1, 1984).) The Board concludes that the Agency incorrectly based
its denial of both requested permits on section 807.661(d) (5).
The Agency also erred in relying on section 807.661(e) as a
basis for denying the requested permits. •This section imposes a
duty upon the trustee, not the operator, to submit its annual
evaluation of the trust fund. (35 Ill. Adm. Code 807.661(e).)
Therefore, the Agency’s reliance upon this section as a basis for
denying the requested permits is misplaced.
The Board will now address the remaining three denial reasons.
The first reason given by the Agency for denying the supplemental
development permit is CESI’s alleged failure to provide
hydrogeologic justification demonstrating “that the one proposed
additional groundwater monitoring well is adequate, and properly
located, to detect any groundwater contamination resulting from
filling the trench in Area IV with waste.” According to the
115—40 1
14
Agency, “given the fact that the procedures for determining the
extent of waste filling in the trench area were not carried out in
accordance with the plan approved by the Agency or the instructions
given by the Agency, the groundwater monitoring needs to be
designed to deal with the potential that waste was disposed of
directly on top of the bedrock and that leachate from this waste
may have contaminated the groundwater.” In support of its denial,
the Agency has cited various sections of the Act and regulations
pertaining to standards for Agency issuance of permits and water
pollution.
CESI states in its supplemental development application, which
is in essence its remediation plan for dealing with waste disposed
of below grade, that “at the Agency’s request a shallow drift
well will be installed at the location specified by the Agency
during our April 5th meeting.
...
the shallow well will be situated
outside of and hydraulically downgradient of the landfill’s Area
I. The Agency selected the location based upon the depth of refuse
identified in the 10/31/88 Report of Investigation.” (Agency Pec.
at 1317.) CESI argues that the evidence shows that waste was not
disposed of directly on top of the bedrock and that, therefore, the
proposedThe wellAgencyis
arguessufficient.that,1 contrary to CESI’s application, the
Agency did not select the location of the additional well as
proposed in CESI’s application. According to the Agency, Mr.
Liebman testified that the Agency did not specify the location of
the well. The Agency also argues that the evidence indicates that
waste was deposited on top of the bedrock causing concerns of
groundwater contamination and that, therefore, the proposed
additional well is insufficient to guard against such
contamination.
Initially, the Board notes that the instant argument is
another example of the parties’ failure to cite to the record in
support of their arguments. CESI has failed to cite to the record
in support of its claim that the well location was agreed upon at
an April 5th meeting. Similarly, the Agency relies upon Mr.
Liebman’s testimony but fails to cite to the record in support of
that contention. Again, the parties’ failure to reference the
record where appropriate has made the Board’s review of this matter
1
In support of this argument CESI has included with its
brief several documents relating to the site’s
groundwater monitoring system (“Attachment 2”). These
documents were never offered into evidence at the Board
hearing and have been presented for the first time in
CESI’s brief. Therefore, the Board will not consider
this information in its review of the permit denial
because such information is outside the permit review
record.
115—402
15
more burdensome and time consuming than necessary.
The agreed upon plan of action for investigating waste
disposed of below grade was to remove the waste, map the excavated
areas, complete the boring program which would determine the extent
of the buried waste and liner material and, lastly, refill the area
with recompacted clay. (P. at 1139.) CESI admits that it did not
follow this course of action, but instead refilled the area with
recompacted clay prior to conducting the boring program because of
“inclement weather”. (R. at 1141.) CESI points to the October
31, 1988 report of CESI’s engineering consultant which states that
the borings were observed by Gary Steele, investigator for the
Agency who modified three boring locations, that boring B-l, which
penetrated 20 feet below ground surface did not identify the top
of hard bedrock and that the “borings identify no waste at the
specified locations between the ground surface and top of bedrock.”
(R. at 1142; Tr. at 382-83.) This information and the boring logs
were included with the supplemental development permit application.
The Board’s review of the record reveals one document which refers
to an April 5th meeting, but does not refer to the contents of that
meeting. (P. at 1319.) However, Mr. Timothy Sheehan, a
professional engineer for Rapps Engineering, testified that he
attended a meeting with Agency personnel on April 5, 1989 at which
time the report was discussed. (Tr. at 397.) According to
Sheehan, it was suggested “that if the supplemental development
permit application was to include one additional monitoring well
at a certain location
...
that was adequate. We did not submit any
hydrogoelogic) justification as part of the application.” (Tr.
at 420.)
In support of its denial, the Agency cites to the testimony
of Agency inspector Gary Steele; however, the citation is actually
to the testimony of Christian Liebman, an Agency engineer. (Tr.
at 816.) Mr. Liebman testified that “Gary Steele of our Field
Operations Section had prepared some cross sections from the data
that we had been provided with the submittal, and it showed that
in the center of the trench area the clay had been completely
breached and the bedrock had been exposed.”
(u.)
Mr. Liebman
also testified that he did not recall Agency personnel directing
CESI to locate the additional well at a particular location. (Tr.
at 817-18.) Lastly, the Agency points to the testimony of CESI’s
consultant who stated that because the backfilling was done prior
to the boring, he could not determine how much liner was remaining
prior to backfilling. (Tr. at 431.)
Absent a specific regulation requiring all permit applicants
to present hydrogeologic justification, the Agency’s denial based
upon CESI’s failure to provide such information must be premised
upon evidence in the permit record indicating that potential
problems exist justifying the requirement that such information be
submitted. However, the only evidence on this point which the
Board has found in the record is that of CESI which establishes
115—40 3
16
that the borings did not indicate the presence of waste on top of
the bedrock. The only refutation of CESI’s evidence is the
Agency’s assertion that one of its inspector’s “prepared some cross
sections from the data
...
submitted) and it showed that
...
the
bedrock had been exposed.” (Tr. at 816.) The Agency does not
point to where in the record these “cross sections” exist, if
indeed they do, nor has the Board’s review of the record uncovered
such a document. The Agency’s denial reason raising the failure
to provide hydrogeologic justification is premised upon its
statement that such justification is needed because waste was
disposed of on top of bedrock. The Board finds that the evidence
indicates that waste was not disposed of on top of bedrock and,
therefore, the Agency’s stated denial reason is insufficient.
The second reason given by the Agency for denying the
supplemental development permit is that CESI’s application proposes
to construct the additional well using PVC and to omit organics as
monitoring parameters for the groundwater. The Agency asserts that
the possibility of organic contamination is of substantial concern
and consequently the groundwater must be monitored for organics.
The Agency also finds the use of PVC in constructing the wells to
be unacceptable. The Agency cites many sections of the Act and
regulations in support of this denial reason the most important of
which is 35 Ill. Adin. Code 807.314(e) which provides that “no
person shall cause or allow the development or operation of a
sanitary landfill which does not provide adequate measures to
monitor and control leachate.”
CESI contends that, while an analysis of the exhumed drums
during the investigation of the remediation area revealed the
presence of toluene and ethylbenzenes, use of PVC casing is
appropriate particularly in light of the fact that there is no
regulation prohibiting the use of PVC. (CESI Brief at 26-27.)
CESI also notes that it was first informed of the presence of these
organics at the permit hearing. (Id.) Without citing to the
record, the Agency relies upon the testimony of Mr. Liebman as to
why organic parameters should be included in the monitoring program
and why PVC is inadequate. (Agency Brief at 21.)
The record establishes that a laboratory analysis of one of
the drums staged during the investigation of the remediation area
revealed the presence 310 ug/g (ppm) of toluene and 10 ug/g (ppm)
of ethylbenzene. (P. at 537-42.) Agency field inspector Gerald
Steele also testified about the contents of this report. (Tr. at
956-57.) Mr. Liebman also testified as to the need for monitoring
for organics. (Tr. at 818-19.) According to Liebman, such
monitoring is necessary because “groundwater can be heavily
impacted by organics, and if all the groundwater is being tested
for is inorganic parameters, that contamination would never be
picked up.” (Tr. at 818.) Liebman also testified that monitoring
for organics is necessary because waste accepted at the site
“typically contains organic compounds. The drums
...
tested showed
115—404
17
that at least some of them contained organic compounds, and
finally,
...
there was some indication that T.O.C. at his site was
elevated. By testing for specific organic compounds it would be
possible to identify whether the source of this T.O.C. was the
landfill or some other source.” (Tr. at 818-19.)
The record establishes the legitimacy of the Agency’s concern
regarding possible groundwater contamination by organic compounds.
The remaining question is whether the Agency properly denied CESI’s
application because it proposes the use of PVC in constructing the
monitoring wells. Mr. Liebman testified that wells constructed
with
poly
vinyl
chloride
(PVC),
which is an organic compound, can
impact the water that collects within the well. “When this
happens, it is not possible to tell whether the PVC that is being
detected is due to contamination of the groundwater by the
landfill, or by the wellcasing.” (Tr. at 819—20.)
The Board rejects CESI’s contention that the Agency may not
deny its permit application on the basis that CESI proposes use of
PVC because there is no specific regulation prohibiting use of PVC.
In Waste Management, Inc. v. IEPA, PCB 84—45, 84—61 and 84—68 at
18-19 (October 1, 1984), the Board noted the following:
Part 807 itself does not specifically require groundwater
monitoring, containing only a prohibition against
development or operation of a site if ‘damage or hazard
will result to waters of the state’
...
and an
application requirement for a description of groundwater
condition
...
and an appraisal of the effect of the
landfill on groundwater
... .‘
Groundwater monitoring
was, however, clearly within the intent of Chapter 7 upon
its adoption
The Agency has the authority to deny a permit when the applicant
has failed to demonstrate compliance with the Act or regulations.
Here, the Agency found that CESI’s proposed use of PVC would
interfere with the groundwater monitoring system and would
therefore fail to ensure that operation of the landfill would not
result in water pollution in violation of 35 Ill. Adm. Code 807.313
and 807.315. Rejecting the use of PVC under the instant
circumstances because such use would interfere with the groundwater
monitoring of the site is a valid reason for denying CESI’s
application for a supplemental development permit.
The final denial reason to be addressed is the first reason
given by the Agency for denying CESI’s application for an operating
permit for Area IV. The Agency states that the boring logs and
permeability tests provided with the application are not adequate
to demonstrate the existence of a clay liner with a minimum
thickness of 10 feet and a maximum permeability of 1 x 10 -7 cm/sec
required by condition no. 6 of permit no. 1987-l94-SP for the
following reasons: 1) the location of boring no. 7 (monitoring
115—405
18
well) is not given on the sketch showing the location of the test
probes; 2) the surface elevations of the probes are not provided
on the boring logs; 3) the brown sandy clay found between 7 and 10
feet of depth in boring ST-4 has not been tested for permeability;
and 4) boring logs nos. 9, 10 and 11 of the Remedial Action Report
of October 31, 1988 show porous materials (j.~., sand and
sandstone) within 10 feet of the top of the liner.
Regarding CESI’s failure to provide the location of boring no.
7, Mr. Rapps testified that this boring log was inadvertently
included in the development permit application and that this boring
log properly belonged in the supplemental operating permit
application. (Tr. at 507-09.) Apparently, the Agency was not
aware that this information was incorrectly included in the
development permit application at the time it rendered its initial
denial statement. (Tr. at 774-75.) However, given that CESI is
not relying on boring no. 7 in support of its application for an
operating permit for Area IV, the Board will not uphold the
Agency’s denial reason premised upon the failure to specify the
location of boring no. 7.
CESI contends that the boring logs included with its
application for an operating permit establish the existence of a
suitable clay liner and that the surface elevations of those
borings are not required to establish compliance with the Act and
regulations. The Agency asserts that the failure to provide
surface elevations on the boring logs renders uncertain the
existence of the requisite liner material. According to the
Agency, 10 feet of clay with a maximum permeability of 1 x 10 -7
cm/sec is necessary to ensure adequate measures to monitor and
control leachate as required by 35 Ill. Adm. Code 807.314(e). (Tr.
at 773.) CESI does not challenge the necessity of the clay liner
as required by the Agency and, therefore, the only question
remaining is whether the surface elevations are needed to establish
the existence of a liner of sufficient thickness.
The Agency’s denial for failure to provide surface elevations
has merit. While the boring logs submitted by CESI show the
thickness of different soils encountered while doing the boring and
the depth of the boring, it is impossible to establish the vertical
elevation of the boring. (P. at 1444-50.) Without this
information, it is impossible to establish where a certain soil
layer begins and ends. The Agency is concerned that while it is
possible that ten feet of clay existed initially, that ten feet may
have been located above the permitted elevation for the top of the
liner when the area was excavated to permitted elevations.
Consequently, the requisite clay liner material may no longer
exist. The Board finds the Agency’s concern that the failure to
provide surface elevations on the boring logs raises uncertainties
as to the adequacy of the clay liner is a valid basis for denying
CESI’s application for an operating permit for Area IV.
115—40 6
19
The Agency also relies upon the fact that the “brown sandy
clay” found between 7 and 10 feet in boring no. ST—4 was not tested
for permeability in support of its assertion that CESI failed to
establish that the clay liner would have the requisite
permeability. (P. at 1447.) CESI contends that, given the
voluminous soil and permeability testing done at the site, the
failure to test the permeability of the sandy soil in this single
boring is not a sufficient basis for denying the permit. (Tr at
510.)
CESI submitted with its application a report of permeability
tests done on the soil borings. (P. at 1442.) While the silty
clay in ST-4 was tested for permeability, the sandy soil was not
tested. Christian Liebman, an Agency engineer, testified that
brown sandy soil would have a higher permeability than silty clay
and that by failing to test the sandy soil, CESI was selectively
sampling the soils for permeability. (Tr. at 777—78.) According
to Liebman, the borings done in relation to the application for the
operating permit are required to be closer together than the
borings done in relation to the development permit because the
former are designed specifically to demonstrate the requisite
permeability of the liner. (Tr. at 778—79.) Liebman also
testified that differences in geology exist from boring to boring
at the site. (Tr. at 779.)
The Board finds that the Agency properly denied CESI’s
application because it failed to include the requisite information
to establish the existence of liner material of a sufficient
permeability. As noted above, CESI does not challenge the Agency’s
liner requirements for protecting groundwater. The Board finds
that the Agency’s information requirements are reasonably related
to controlling leachate and the protection of groundwater. (35
Ill. Adin. Code 807.313, 807.314(e) and 807.315.)
Lastly, the Agency states that boring logs nos. 9, 10 and 11
of the remedial investigation report of October 31, 1988
establishes the existence of porous materials
~
sand and
sandstone) within 10 feet of the top of the liner. (P. at 1140-
61.) CESI asserts that this information was not submitted in
support of its application for an operating permit for Area IV
but was submitted in connection with the application for the
supplemental development permit. (Tr. at 515-17.) According to
CESI, these borings were taken after the excavation of the
remediation area so that the liner was missing at the time these
borings were performed. (Tr. at 517.) CESI points to the boring
ST-i submitted with its application which was taken after the
backfilling occurred in support of its assertion that adequate
liner material exists. The Agency has not attempted to refute
CESI’s contention that the information contained in the October
report is superseded by the boring logs submitted with the
application for an operating permit. The record supports CESI’s
assertion in this regard and, therefore, the Board finds that the
115—40 7
20
Agency’s reliance on the borings contained in the remedial action
report are an improper basis for denying the permit for failure to
establish the sufficiency of the clay liner.
In summary, while revocation of a permit may be a proper
remedy in an enforcement action, in many instances in this case the
Agency is using permit denial as a method of enforcement. For the
reasons stated above, the Board concludes that denial reason no.
2 relating to testing for organics and rejection of PVC in
monitoring for groundwater contamination is a valid basis for
denying CESI’s application for a development permit. The Board
also concludes that denial reason no. 1 relating to the adequacy
of liner material is a sufficient basis for denying the operating
permit for Area IV. All other remaining denial reasons are an
insufficient bases for permit denial in this instance. Therefore,
the Agency’s denial of both permit applications is affirmed.
This constitutes the Board’s findings of fact and conclusions
of law in this matter.
ORDER
For the reasons given above, denial reason nos. 1 and 3
relating to CESI’s application for a supplemental development
permit are reversed and denial reasons nos. 2, 3, 4 and 5 of the
relating to the supplemental operating permit for Area IV are
reversed. The remaining two denial reasons are upheld and,
therefore, the Agency’s denial of both permits is affirmed.
IT IS SO ORDERED.
J. D. Dumelle and B. Forcade concur.
Section 41 of the Environmental Protection Act (Ill. rev.
Stat. 1989, ch. 111 1/2, par. 1041) provides for the appeal of
final Orders of the board within 35 days. The Rules of the Supreme
Court establish filing requirements.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif t at the above Order was adopted on the
~
day of
______________,
1990 by a vote of
___________
Dorothy M.,,~unn, Clerk
Illinois P4flution Control Board
115—408
