BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB No. 08-25
(Permit Appeal - Land)
REPLY BRIEF
OF
PETITIONER PEORIA DISPOSAL
COMPANY
NOW COMES the Petitioner, PEORIA DISPOSAL COMPANY ("PDC"), through its
undersigned attorneys, and as and for its Reply Brief, responding to the Post-Hearing Brief of
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (the "IEPA,,)I, filed on
November 28, 2007, states as follows:
Introduction
The IEPA's Brief itself discloses the weakness of its position on the law in this matter.
As the question before the Board is one of law, review is de novo.
In its Brief, the IEPA struggles to make some reasonable argument that PDC is not the
generator
of the treatment residue under Section 3.330(a)(3).
It
does so by interpreting the
exemption in isolation, without regard
to the comprehensive environmental scheme envisioned
by the Illinois Environmental Protection Act (the "Act") and the Federal law incorporated
therein. Such isolated reading essentially ignores RCRA, in favor
of purported public opinion
given a limited voice by the Illinois siting law. In this context, the Board carmot condone an
1
For the purposes of this Reply Brief, all capitalized terms are ascribed the meanings given them in
PDC's initial Brieffiled in this matter on November 16, 2007.
THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
overly broad application of the Illinois siting law to trump a carefully crafted Federal scheme
designed
to provide the American public with an enviromnentally safe method for the disposal of
hazardous waste. The IEPA's argument that PDC does not generate wastes from its own
activities for purposes
of application of the exemption from siting to the RWF in this permit
application, when PDC
is the generator of the treatment residue under each and every other
relevant State and Federal law and regulation, cannot stand. Illinois law simply cannot obfuscate
federal law, which the United States Supreme Court has held, in other contexts, might well
preempt the field when state and federal legislative goals are at odds.
See, e.g.,
Gade v. National
Solid Wastes Management Association,
505 U.S. 88, 112 S.Ct. 2374,120 L.Ed.2d 73 (1992).
PDC
IS EXEMPT FROM LOCAL SITING APPROVAL, BECAUSE
PDC
IS THE "GENERATOR"
OF THE TREATMENT RESIDUE SOUGHT TO BE DISPOSED OF AT THE PROPOSED
RWL.
There is only one citation offered by the IEPA in support of its contention that PDC is not
the generator
of the treatment residue under Section 3.330(a)(3).
It
is not a citation to a law.
It
is
not a citation to a regulation.
It
is not a citation to case law or to an administrative decision.
It
is
a citation to the American Heritage Dictionary. In any case, the definitions from the American
Heritage Dictionary are supportive
ofPDC'sposition.
During PDC's treatment process, the chemical and physical characteristics
of PDC's
customers' wastes are dramatically and irreversibly changed and a new treatment residue
is
created. The IEPA argues that "PDC does not 'produce'waste by bringing it forth, creating it,
manufacturing it, or causing it to exist." (IEPA Brief, pg.
3; emphasis added). In actuality and
under the law, PDC does in fact "produce" the treatment residue that is sought to be disposed of
in the proposed RWL by "bringing it forth, creating it, manufacturing it, or causing it to exist."
The exemption in Section 3.330(a)(3) applies to disposal
of "wastes generated by such person's
own activities...." The wastes generated by PDC's activities in this case are the treatment
2
THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
residues, which treatment residues do not exist until PDC creates them at the WSF. The
treatment residues come into being solely
as the result of PDC's own activities. The treatment
residues are the only material sought to be disposed
of in the RWL. The IEPA's constrained
interpretation
of these definitions in the context of PDC's actual process is fatally flawed..
Moreover, the IEPA's citation to the American Heritage Dictionary is incomplete. The
dictionary provides the following additional meaning
of "produce": "To manufacture or create
economic goods and services." (The American Heritage® Dictionary
of the English Language,
Fourth Edition. Houghton Mifflin Company, 2004)2 Clearly, PDC creates and performs an
economic service for its customers, one envisioned and established by Federal law, by treating
waste that would otherwise be incapable
of lawful and proper disposal, pursuant to State and
Federal laws. Pursuant to RCRA and through its treatment process, PDC treats and transforms
what otherwise could not be lawfully disposed
of into a product safe for disposal.
In spite
of the IEPA's arguments to the contrary, the statute does not exclude from the
definition
of "generator" all entities that utilize "waste" to create new, fundamentally different
products. Nearly anything can be considered a "waste." Oxygen is waste produced by
photosynthesis in trees and plants. Coal is waste produced by dying trees and plants. Diamonds
are waste produced by coal. Where would the IEPA draw the line?
The sole question in this case is whether the treatment residues are generated by PDC or
by someone else.
If PDC is not the generator of the treatment residues, who is? The IEPA's
single witness at the hearing in this case agreed that PDC was the generator of, at least, 40-50%
of the mass of the treatment residue added during the treatment process, for the purposes of the
siting exemption in 415 ILCS §5/3.330(a). (Tr. 37/6-38/17). Yet the witness indicated that PDC
was not the generator
of 50-60% of the treatment residue under Section 3,330(a)(3), even though
2 Dictionary.com. http://dictionary.reference.com/browse/produce (accessed: November 29, 2007).
3
THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND I01.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
PDC is the generator of such waste for every other State and Federal legal and regulatory
purpose, and the waste has
no other identifiable generator.
The !EPA mischaracterizes PDC's treatment process, in order to deemphasize the results
of such process.
In
the Conclusion to its Brief, the !EPA argues that if PDC's (and the Federal
and State governments' and agencies') interpretation
of the term "generator" is correct, then
"[a]ny landfill in the State could take all the waste it receives, mix it with some
of its own
material, and be exempt from local siting approval for all waste in the landfill." (!EPA Brief, pg.
10). First, if the hypothetical landfill were to begin to treat waste, the new treatment business
would
be required to obtain a permit from the !EPA, and would obviously require siting as a new
pollution control facility.
See
415 ILCS §5/3.330(a) (including waste treatment facilities in the
definition
of pollution control facility). The !EPA'shypothetical is nonsensical.
Secondly and more substantively, as the !EPA well knows, PDC's process does not
merely involve tossing together some waste and some other materials and dropping the mixture
in the landfill. PDC's process creates a new waste (and a new waste stream), fundamentally
physically and chemically different than its constituent elements, and capable
of land disposal.
If
this were not the case, (a) why would the treatment process be required, and (b) why would the
!EPA itself treat PDC
as the generator of the resulting treatment residues for all legal and
regulatory purposes?
Moreover, !EPA
is wrong to label PDC the "treater" and not the generator of the
treatment residues. Admittedly, the WSF treats the waste from those customers
who seek safe
disposal; but no changes are sought to PDC'sWSF permit.
It
is a distinct unit from the RWL. On
the other hand, the RWL, which PDC seeks to have permitted, will only accept for disposal that
waste generated by PDC.
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THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND I01.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
SECTION 39(h) OF THE ACT SUPPORTS PDC'sINTERPRETATION OF SECTION
3.330(a)(3).
The IEPA's analysis
of the relationship between Section 39(h) of the Act and Section
3.205
of the Act is also fatally flawed. Section 3.205 of the Act broadly defines "generator" as
"any person whose act or process produces waste." This definition creates the universe of
possible generators under the entirety of the Act, and is relevant for our purposes here. Section
39(h)
of the Act limits that universe of possible generators under Section 3.205, providing that if
"the hazardous waste is treated, incinerated, or partially recycled for reuse prior to disposal,"
then only a generator that is also
"the last person who treats, incinerates, or partially recycles the
hazardous waste prior
to disposal" is classified as a generator under Section 39(h). Therefore, if
an entity is found to be a generator under Section 39(h), it is automatically a generator under
Section 3.205.
(In
its Brief, the IEPA mistakenly reversed this analysis).
This analysis
is reflected in the Illinois Supreme Court's analysis of PDC's status as the
generator
of the treatment residue in Envirite Comoration v. Illinois Environmental Protection
Agency,
158 Ill.2d 210,217,632 N.E.2d 1035, 1038, 198 Ill.Dec. 424, 427 (1994). The Illinois
Supreme Court stated, in pertinent part,
as follows:
The plain language
of the unamended section 39(h) expressly
requires that only the generator
of "that specific hazardous waste
stream" that
is deposited in a landfill must obtain Agency
authorization prior
to disposal.
It
is undisputed that Peoria
Disposal combined PPP's F006 waste with other wastes and then
subjected this mixture to a chemical stabilization process, which
resulted in a new residue. Based on these undisputed facts,
we
agree with the Board that Peoria Disposal and not PPP was the
generator
of this specific hazardous waste stream, which Peoria
Disposal deposited in its landfill.
Envirite Comoration, 158 Ill.2d at 217, 632 N.E.2d at 1038,
198 IlI.Dec. at 427 (emphasis
added). Thus, it was the chemical stabilization process "which resulted in a new residue" that
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THIS FlUNG IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
made PDC the generator of the treatment residue according to the Illinois Supreme Court. This
process, and the Illinois Supreme Court's conclusions about its effects, plainly brings PDC into
the definition
of generator found in both Section 3.205 and Section 39(h) (by express
incorporation):
"any person whose act or process produces waste."
THE RCRA DEFINITION OF "GENERATOR" CLARIFIES THE PROPER INTERPRETATION
OF SECTION
3.330(a)(3), AND SUPPORTS PDC's INTERPRETATION OF SECTION
3.330(a)(3).
RCRA provides two possible definitions of the term "generator." The first mirrors the
definition in Section 3.205
of the Act: "any person, by site, whose act or process produces
hazardous waste...."
35 III. Adm. Code §720.1I0. The second definition provides another,
separate definition
of "generator" under RCRA: "any person ... whose act first causes a
hazardous waste to become subject to regulation."
rd. The IEPA argues that because of the two
possible definitions of "generator" under RCRA, "it is logically possible for a person to be a
'generator' or subject to the generator requirements
of RCRA, without necessarily meeting the
definition
of a 'generator'in the Act." (IEPA Brief, pg. 7).
As PDC fits the first definition of "generator" under RCRA, not the second definition, the
IEPA's analysis
is irrelevant. There is presumably no argument to be made that the waste
received by PDC at the WSF
is not already "subject to regulation" at the time it is so received,
meaning that the second RCRA definition cannot apply
to the WSF. Clearly, PDC is classified as
the generator of the treatment residue under RCRA, by reason of a definition that is essentially
identical to the definition in Section 3.205
of the Act.
The IEPA's analysis also dangerously ignores and misapplies the carefully crafted
RCRA, which
is to apply in Illinois (and all states) in a manner identical in substance to the
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THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
manner prescribed Federally. The Board simply cannot condone a strained application of the
local siting law, and relevant exemptions thereto, in a fashion that redefines RCRA.
The IEPA's struggle to isolate Section 3.330(a)(3) from the rest
of the Act and the entire
body
of State and Federal environmental law is nowhere more apparent than in the IEPA's
discussion
of the "1990 Envirite situation." The IEPA has conceded throughout the hearing and
in the Briefthat the IEPA actually permitted Envirite, PDC's competitor, without requiring siting
pursuant to the exemption in Section 3.330(a)(3) (formerly Section 3.32). Although the IEPA
suggests, without any valid explanation, that the record in that matter is somehow not a "full
record," for the purposes
of this case it is absolutely complete - and in direct conflict to the
position
of the IEPA. (IEPA Brief, pg. 8). In particular, the record contains a letter-decision of
IEPA Attorney Gary P. King, providing as follows:
Materials generated by these operations at the Harvey facility
which are transported to and disposed at the Envirite/Livingston
Residual Waste Landfill in Livingston County would not cause the
Livingston County facility to be a regional pollution control
facility. I reach this conclusion because
of the language of Section
3.32
of the Environmental Protection Act, Ill.Rev.Stat. Ch.
III
1/2,
par. 1003.32. which exempts from the definition "regional-
pollution control facility":
(3) sites or facilities used by any person conducting a
waste storage, waste treatment, waste disposal, waste
transfer or waste incineration operation, or a combination
thereof, for wastes generated by such person's own
activities, when such wastes are stored, treated, disposed
of, transferred or incinerated within the site or facility
owned, controlled or operated by such person,
or when
such wastes are transported within or between sites or
facilities owned, controlled or operated by such person.
Since the Livingston Residual Waste Landfill is not a regional
pollution control facility, it is not a new regional pollution control
facility. Therefore, unless the exemption set forth above ceases to
apply, this landfill may be permitted for development without
obtaining local siting approval pursuant to Section 39.2
of the Act.
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THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND IOLJ02(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
(R01319-21).
In sharp contrast to the Envirite situation, the IEPA in this case has redacted the portion
of this pennit record which contains the legal opinion of IEPA Attorney Mark Wight. As the
Board knows (and
of which the Board can take administrative notice), Mr. Wight has appeared
before the Board as IEPA Counsel in many land matters. Presumably,
if Mr. Wight's opinion
supported the IEPA's position, the IEPA would have tendered the document willingly. Instead,
the IEPA's sole witness, a pennit reviewer and engineer by training, was called upon
to express
the legal position
of the IEPA on the Application. Likely, Mr. Wight's legal opinion is consistent
with the opinion set forth by Mr. King in Envirite - because that opinion
is the law.
Both in testimony and in its Brief, the IEPA offered only one distinction between the
Envirite pennit application and this permit application: "Since [Envirite's application] IEPA's
interpretation has evolved to refocus consideration on the concerns
of the local community."
(IEPA Brief, pg.
8). The law cannot be "refocused" to provide greater consideration to the
concerns
of the local community. The issues before this Board involve essentially the same
statutory language that applied at the time
of Envirite. Neither RCRA nor the siting law has
changed in any way relevant here. As the Board well knows, a state agency can only act in a
manner consistent with the statute it
is charged to apply and enforce.
See
Alternate Fuels, Inc. v.
Director of Illinois E.P.A., 215 Il1.2d 219, 238, 830 N.E.2d 444,455,294 Ill.Dec. 32,43 (2004),
as modified on denial of rehearing
(2005). The Board has the responsibility of properly
interpreting the Act, in a manner consistent with its comprehensive scheme and not in a manner
which obfuscates the federal RCRA scheme incorporated therein.
As an independent quasi-
judicial body charged with the proper interpretation
of the Act, the Board simply cannot allow
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THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
purported public opinion to trump the well-crafted provisions of the Act and the comprehensive
environmental regulatory scheme it sets forth.
Conclusion
Based on all the foregoing, and for the reasons stated in PDC's previously filed Brief, the
IEPA should have reviewed the Class 3 permit modification to PDC for the development and
operation
of PDC's RWL without requiring PDC to submit proof of local siting approval.
WHEREFORE, PDC respectfully requests that the Board enter judgment in favor
of
PDC, reverse the IEPA's permit denial, and remand this matter to the IEPA for technical review
of the Application.
Respectfully submitted,
PEORIA DISPOSAL COMPANY,
Petitioner
Dated:
-----'D"e"'c"'e"'m'-'b"'er"--3"-','-'2"'0"'0~7
_
By:
R~~~
One of its att
e s
Claire
A. Manning, Esq.
BROWN, HAY
&
STEPHENS, LLP
205 S. Fifth Street
Suite
700
Springfield, Illinois 62701
Telephone: (217) 544-8491
Facsimile: (217) 544-9609
Email: cmanning@bhslaw.com
907-1288.2
Brian J. Meginnes, Esq.
Janaki Nair,
Esq.
ELIAS, MEGINNES, RIFFLE
&
SEGHETTI, P.C.
416 Main Street, Suite 1400
Peoria, Illinois 61602
Telephone: (309) 637-6000
Facsimile: (309) 637-8514
Emails:bmeginnes@emrslaw.com
jnair@emrslaw.com
9
THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND 101.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA
DISPOSAL COMPANY,
)
)
Petitioner,
)
)
v.
)
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
PCB No. 08-25
(Pennit Appeal - RCRAILand)
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that the Reply Brief of Petitioner was filed with the Clerk of the
Illinois Pollution Control Board electronically, and was served on the Respondent by sending
same as set forth below, from Peoria, Illinois, before 5:00 p.m.
on the 3rd day of December,
2007:
Michelle M. Ryan
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, Illinois 61794-9276
(Via E-Mail and Us. Mail, First Class
Postage Prepaid)
Claire
A.
Manning, Esq.
Brown, Hay
&
Stephens, LLP
205
S. Fifth Street
Suite 700
Springfield, Illinois 62701
(217) 544-8491
Mr. Douglas
P. Scott, Director
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, Illinois 61794-9276
(Via Us. Mail, First Class Postage Prepaid)
Brian 1.
Brian J. Meginnes, Esq.
Janaki Nair, Esq.
ELIAS, MEGINNES, RIFFLE
&
SEGHETTI, P.C.
416 Main Street, Suite 1400
Peoria, Illinois 61602
(309) 637-6000
10
THIS FILING IS ON RECYCLED PAPER AS REQUIRED BY 35 ILL ADM. CODE 101.202 AND I01.302(g).
Electronic Filing: Received, Clerk's Office, December 3, 2007
