ILLINOIS POLLUTION CONTROL BOARD
July 21, 1994
WASTE MANAGEMENT
)
OF ILLINOIS, INC.,
Petitioner,
v.
)
PCB 94—153
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by C. A. Manning):
This case is before the Board on a denial of a supplemental
permit modification requested by Waste Management of Illinois,
Inc. (WMII). On May 16, 1994, pursuant to Section 40(a) of the
Environmental Protection Act (Act) WNII filed a petition for
review of the Illinois Environmental Protection Agency’s (Agency)
Notification of Incompleteness (Notification) regarding
WNII’s
supplemental permit application for its Five Oaks Recycling &
Disposal Facility (Facility) in Taylorville, Illinois. (415 ILCS
5/40(a) (1992).) The Agency’s Notification was issued on April
25, 1994, as a result of the Agency belief that the requested
supplemental permit was actually an expansion of the Facility and
thus needed local siting approval pursuant to Section 39.2 of the
Act which was not submitted along with the application by WMII.
(415 ILCS 5/39.2 (1992).)
WMII’s
permit appeal petition requests
that the Board determine local siting approval is not required
and order the Agency to retract the Notification.
WMII filed a motion to continue hearing, a waiver of
decision deadline, a motion for summary judgment, a brief in
support of the motion for summary judgment, and a joint
stipulation of facts on June 30, 1994.’ On July 6, 1994, the
Agency filed a response requesting the Board to deny
WMII’s
motion for summary judgment.
On July 11, 1994, WMII filed a motion for leave to file a
reply instanter. WMII contends that the Agency has improperly
raised an irrelevant issue in its response, and that therefore
WMII would be materially prejudiced if it is not allowed to reply
to that issue.
WNII’s
motion for leave to file a reply instanter
is granted so that it can respond to the Agency’s argument. The
issue before the Board on the motion for summary judgment is
‘The Joint Stipulation of facts will be cited as
“Stip. at
______
2
whether local siting approval is required in order for the Agency
to issue a supplemental permit for the proposed design
modifications in accordance with the Act.
Regulatory Framework
In a proceeding for review of permit denial authorized by
Section 40(a)(1) of the Act (415 ILCS 5/40 (a)(l)), and 35 Ill.
Adm. Code Section 105.102(a), the statute provides that the
burden of proof shall be on the petitioner. The petitioner bears
the burden of proving that operating pursuant to a permit, issued
as applied for from the Agency, would not violate the Act or the
Board’s regulations. This standard of review was discussed in
Browning-Ferris Industries of Illinois, Inc. v. Pollution Control
Board, 179 Ill. App. 3d 598, 534 N.E. 2d 616, (2nd Dist. 1989)
and reiterated in John Sexton Contractors Company v. Illinois
(Sexton), PCB 88-139, February 23, 1989. In Sexton the Board
held:
that the sole question before the Board is whether the
applicant proves that the application, as submitted to the
Agency, demonstrated that no violations of the Environmental
Protection Act would have occurred if the requested permit
had been issued.
Therefore, a petitioner must establish to the Board that issuance
of the permit would not violate the Act or the Board’s rules if
the requested permit was to be issued by the Agency. In this
case, WNII has the burden of demonstrating that approval of the
supplemental permit modification without the siting approval
pursuant to Section 39.2 of the Act would not violate the Act.
Summary judgment is appropriate when there are no genuine
issues of fact to be considered by the trier of fact and the
movant is entitled to judgment under the law. (Williamson
Adhesives, Inc. v. EPA, No. PCB 91-112 (Aug. 22, 1991), Caruthers
v. B.C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457,
459 (1974).) The Agency’s Notification in effect denied WMII a
permit on the basis that local siting approval is required.
Therefore, a grant of the WMII motion for summary judgment would
be appropriate if there are no genuine issues of fact remaining
and the Board can decide that, based on the law, local siting
approval is not required for the Agency to lawfully issue the
supplemental permit with the proposed design modifications.
3
Stipulated Facts
The parties filed a stipulation of facts on June 23, 1994
which presents the following. WMII purchased the landfill in
1992. The Facility received its original local siting approval
from Christian County in 1986 and received approval again in 1989
when the original owner filed for an expansion. (Stip. at 1.)
The siting approvals of 1986 and 1989 did not establish final
design contours and waste limits and were not part of Christian
County’s siting hearing records. (Stip. at 1 and 2.) The Agency
approved the landfill design and issued the current operating
permit in 1990. (Stip. at 2.) As part of the Agency’s approval,
Special Condition #1 sets forth the same maximum elevation as the
local siting approval, 685 feet above Mean Sea Level (MSL), and
area, 212.965 acres. (Stip. at 2.) WMII refers to the location
descriptions found in the siting approvals and reiterated in
Special Condition #1 as the “siting line”, while the Agency
refers to them as the “facility boundary line”. In addition,
Special Condition #2 of the operation permit issued by the Agency
states:
Any extension of the site beyond the boundaries given in the
legal description above (Condition No. 1) and the contours
shown on Sheets 8,9 and 10 of 19, entitled “Closed Site,”
dated August, 1989, of Application No. 1990-196 will require
siting approval of the Christian County Board under the
provisions of the Environmental Protection Act, Section
39.2. (Stip. at 2.)
Although the language above does not specifically so state, the
Agency refers to the area defined in Special Condition #2 as the
“waste boundary line”.
WMII began to finalize design details for the permitted, but
undeveloped areas of the facility in 1992. (Stip. at 3.) The
proposed final design causes the contours (the three-dimensional
shape of the closed landfill waste mound) to be lower in some
areas and higher in others than in the original permitted design
which was approved by the Agency in 1990. (Stip. at 3.) These
new design contours will increase the “two dimensional design” of
the waste footprint2 representing an increase in certain areas
from the originally permitted 1990 design. (Stip. at 3.)
However, the new design contours being proposed by WMII are
within the siting line or boundaries and maximum elevation
established by the Christian County Board. (Stip. at 3.)
Furthermore, the new design modification proposed by WMII does
not increase the Facility’s capacity and, in fact, the actual
2The waste footprint is the actual surface area the landfill
waste mound covers at the site.
4
capacity will decrease. (Stip. at 3.)
WMII
is proposing the
design modifications in order to
reduce leachate generation and
improve the collection of leachate. (Stip. at 3.) The proposed
design changes would alter the contours of the landfill from
having a flat top to a steeper top slope in order to minimize
water infiltration through the cover thereby reducing the
leachate volumes. (Stip. at 3.) The Agency has not made a
determination as to the technical merits of WMII’s proposed
design modifications due to the Agency’s belief that local siting
approval is necessary. Therefore the Agency deemed WNII’s
application incomplete. (Stip. at 3.)
The Parties’ Arguments
Pursuant to Section 39.2 of the Act, the Agency cannot grant
a permit for an expansion of a currently existing landfill
without the approval of the local governmental unit within which
the landfill facility is located if the expansion would create a
“new regional pollution control facility” as defined in Section
3.32(b) of the Act. (415 ILCS 5/39.2, 5/3.32 (1992). The Act
defines new regional pollution control facility as “the area of
expansion beyond the boundary of a currently permitted regional
pollution control facility.” (415 ILCS 5/3.32 (1992).) We are
asked in this case to evaluate whether the change in landfill
contour and design proposed by WNII at the Facility falls within
the definition of “new regional pollution control facility”.
In a seminal case regarding what constitutes a new regional
pollution control facility, the Illinois Supreme Court has held
that a vertical extension constitutes an expansion. In that
case, M.I.G. Investments, Inc. v. Environmental Protection
Agency, 122 Ill. 2d 392, 523 N.E. 2d 1 (1988), the Court stated:
To expand the boundaries of a landfill, whether vertically
or laterally, in effect, increases its capacity to accept
and dispose of waste. An increase in the amount of waste
contained in a facility will surely have an impact on the
criteria set out in 39.2(a), which local governmental
authorities are to consider in assessing the propriety of
establishing a new pollution control facility.” (Id. at
40.)
A similar, appellate decision is Bi-State Disposal, Inc. v.
Illinois Environmental Protection Agency, 203 Ill.App.3d 1023,
561 N.E.2d 423 (5th Dist. 1990). In Bi—State, a 1978 permit
issued to a prior owner allowed waste disposal in a mine cut
bisecting the property. In 1982, Bi-State requested and received
a permit eliminating the mine cut from use. In 1989, Bi-State
sought to reopen the mine cut for use. The court held that the
proposed modification was a new regional pollution control
facility requiring local siting approval prior to the Agency
issuing a permit. The Court believed that to reopen the mine cut
5
would increase the capacity of the landfill, impacting on
criteria local governmental authorities consider in assessing the
propriety of establishing a new regional pollution control
facility.
The parties disagree as to how these decisions apply to the
facts of this case. As previously stated, there are two
boundaries identified in permit # 1990-l96—SP: the facility
boundary defined in Special Condition No. 1, and the waste
boundary defined in Special Condition No. 2. The facility
boundary was considered by the Christian County in its siting
approval process. The waste boundary was later set by the Agency
during the permitting process. The design change proposed by
WMII will decrease the Facility’s volumetric capacity to accept
waste, but will in some areas extend outside the waste boundary
identified in by Special Condition No. 2. The Agency takes the
position that the waste boundary, and not the facility boundary,
is the boundary at issue; WNII takes the contrary position.
WNII argues that the decisions are distinguishable since the
modification of the contours of the Facility is a technical
design change only which will not result in increased landfill
capacity or life, and therefore, is not an expansion as defined
by the Act. Additionally, WMII argues that the proposed
modifications to the landfill will not extend beyond the
permitted “siting line” and maximum elevation designated in the
siting approval. More broadly, WMII argues that to construe the
Act to require local siting review for this type of design
modification would lead to the absurd result of the local unit of
government being asked to evaluate its proposed modifications
against nine statutory criteria that are essentially irrelevant.
The Agency, on the other hand, cites to M.I.G. as authority
for finding that the local review is required. Specifically, the
Agency cites to the following language in M.I.G.:
From the language of section 3(x) (2) now section
3.32(b) (2), it is clear that the legislature intended to
invest local governments with the right to assess not merely
the location of proposed landfills, but also the impact of
alterations in the scope and nature of previously permitted
landfill facilities.
(.I~
at 4.)
The Agency contends that in M.I.G. the Court recognized the
legislative intent that the local government be allowed every
possible opportunity to assess alterations in the “scope and
nature” of permitted facilities. In addition, the Agency cites
to other sections of the Court’s opinion commenting generally on
increases in a landfill facility’s operations for the proposition
that the Act, and more specifically the word “expansion”, should
be liberally construed. Finally the Agency concludes that its
reading of both M.I.G. and Bi—State is not inconsistent with the
6
principles and interpretations of the Act. The Agency contends
that these cases do not define the word “expansion” only in terms
of increased capacity but would also include any alteration in
nature and scope of the landfill. Therefore, in this case, that
local siting review is required in order for WNII to be issued a
supplemental permit.
Board Discussion
The terms in a statute are not to be considered in a vacuum,
but must be construed in the context of what they define. (M.I.G.
at 4.) We must therefore examine the statutory language as it
applies to the specific circumstances of this case. Based on
the facts of this case, the Board finds that WNII’s proposed
redesign does not constitute an “expansion beyond the boundary of
a currently permitted pollution control facility” within the
meaning of Section 3.32(b) of the Act. WNII’s motion for summary
judgment is granted. The Agency improperly deemed WMII’s
application incomplete for failure to contain evidence of a third
siting approval by Christian County. The Board will accordingly
remand the permit application to the Agency for review on its
merits; the Board will express no opinion on the merits of this
application.
The stipulated facts are that WNII’s proposed
reconfiguration of the permitted but undeveloped disposal units
6-Il, Unit 7 and Unit 8 falls within the “siting line” boundaries
approved by Christian County in its 1986 and 1989 siting
resolutions, resolutions which did not specify boundaries for the
waste disposal area or “footprint”. The proposed reconfiguration
also complies with the elevation restrictions imposed by the
Christian County for the landfill’s final contours.
The proposed reconfiguration would increase the two
dimensional area of the landfill by approximately 1000 square
feet in a triangular area in a northwesterly direction3. The
edge of the proposed “expansion area” is approximately 150 feet
from the northwest property boundary. However, in contrast to
the situations analyzed by the M.I.G. and Bi--State courts, the
reconfiguration proposed here will result in a net loss in
volumetric capacity to the landfill.4 The net loss in capacity
3This area is approximated from measurement of the scale
drawing of the landfill submitted as Attachment 4, Drawing 3 to
the stipulation. The area is located at roughly 9400 N to 10200
N, and 20800 E to 21700 E on the map’s grid system.
4mis is calculated by WMII as a net loss of 14,000 cubic
yards. (Petition, Attach. 1, App. I “Air Space Volume
Calculations”, Table 1).
7
will accordingly shorten the life of the landfill, decreasing the
impacts on the criteria of Section 39.2(a) as previously
considered by Christian County. (See M.I.G., supra, 523 N.E.2d
at 5.)
In further contrast to the situations in M.I.G. and Bi-
State, the stipulated purpose of the proposed redesign is to
minimize the impacts of the landfill on the environment, by
reducing leachate generation and improving leachate collection
(Stip. at 3.) This case is inapposite to Bi-State where the
issue before the Board concerned a landfill which sought to reuse
a previously permitted mine cut that was closed on the advice of
Bi—State’s environmental consultant. In short, the policy
reasons favoring construction of the N.I.G. and Bi-State permit
requests as “expansions” within the meaning of the statute do not
exist here. The “nature and scope” of the landfill remain the
same as that approved by Christian County.
In so finding, the Board wishes to make clear that, had
Christian County established boundaries for the waste “footprint”
in its siting resolutions, any proposed extension would almost
certainly require an additional siting approval. In this case,
the Agency is arguing that its permitted “footprint”
retroactively becomes a site approval condition. An Agency
permit is just that
-
an Agency authorization from which the
permit holder may petition the Agency for a modification. In
this case, WMII is requesting a modification of that permit where
such modification does not expand beyond the permitted boundary,
impact the criteria considered by the siting authority, and is
consistent with that approval. Therefore, no additional siting
approval is required.
Today’s decision turns solely on the facts of this case,
including the site-specific conditions, and the language of the
Christian County’s approvals. This decision does not change the
fact that terms of a local government’s approval will continue to
set the metes and bounds of a landfill’s area, and expansions
will continue to require local approval pursuant to Section 39.2
of the Act.
This opinion constitutes the Board’s findings of fact and
conclusions of law in the matter.
ORDER
WMII’s June 30, 1994 motion for summary judgment is granted.
WMII’s March, 1994 permit application is deemed complete and is
remanded to the Agency for technical review on its merits.
IT IS SO ORDERED.
8
Section 41 of the Environmental Protection Act, (415 ILCS
5/41 (1992), provides for appeal of final orders of the Board
within 35 days. The Rules of the Supreme Court of Illinois
establish filing requirements. (See also 35 Ill. Adm. Code
101.246, Motion for Reconsideration).
I, Dorothy M. Gunn, Clerk of Illinois Pollution Control
Board, hereby certify that th ove opinion and order was
adopted on the~~/~/~dayof
_________,
1994, by a vot of
____
~~
Dorothy M. ,~(inn, Clerk
Illinois P~lution Control Board