BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
TOM EDWARDS/RIVER RESCUE,
Petitioner,
v.
PEORIA DISPOSAL COMPANY and
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
PCB No. 2008-042
(Permit
Appeal- Third Party)
POST-HEARING BRIEF OF
RESPONDENT PEORIA DISPOSAL COMPANY
NOW COMES Applicant/Respondent Peoria Disposal Company ("PDC"), by its
undersigned attorneys. PDC maintains and renews its position, stated in its Motion
to Dismiss
filed on January 23, 2008, that the Illinois Pollution Control Board (the "Board")
is without
jurisdiction to entertain this appeal. Notwithstanding and without waiving the arguments set
forth in the Motion to Dismiss, as and for its Post-Hearing Brief, PDC states as follows:
INTRODUCTION
In a third-party appeal of the issuance of a permit by the Illinois Environmental
Protection Agency (the "Agency"), issued pursuant
to the State of Illinois's authority under Part
B
of the Federal Resource Conservation and Recovery Act of 1976, Subtitle C, 42 U.S.C. §6921
et seq.
(2007) ("RCRA"), the Board's inquiry is "whether the third party proves that the permit
as issued will violate the Act or Board regulations." American Bottom Conservancy v. Illinois
Environmental Protection Agency,
et aI.,
PCB 06-171, 2007 WL 325720, *4 (January 26, 2007).
None
of the thirteen (13) bases for appeal stated by Petitioner Tom Edwards
("Mr.
Edwards") in
the "Amended Petition" he faxed
to the Board on March 3, 2008, provides any basis whatsoever
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
for a finding that the permit at issue, Permit B-24R, will violate the Illinois Environmental
Protection Act, 415 ILCS §5/l,
et seq.
(the "Act") or Board regulations. For this fundamental
reason,
in
addition to numerous procedural defects, the Amended Petition should be denied and
Permit B-24R should issue.
STANDARD
OF REVIEW
As the Board is aware, "Section 39(a) of the Act (415 ILCS 5/39(a) (2004» provides that
the Agency has a duty to issue a permit upon proof that the facility will not cause a violation
of
the Act or Board regulations." American Bottom Conservancy v. Illinois Environmental
Protection Agency,
et aI.,
PCB 06-171, 2007 WL 325720, *4 (January 26, 2007). In a third-party
appeal
of the issuance of a permit by the Agency, the Board's inquiry is "whether the third
party proves that the permit as issued will violate the Act or Board regulations." Id.
(emphasis added). The Board reiterated this standard in its March
6, 2008 Order in this case,
citing Joliet Sand
&
Gravel, 163 Ill.App.3d 830, 833, 516 N.E.2d 955, 958 (3 Dist. 1987), and
Prairie Rivers Network
v. IPCB, !EPA and Black Beauty Coal Company, 335 lll.AppJd 391,
401,781 N.E.2d 372,380
(4 Dist. 2002).
Pursuant to Section 705.2l2(c),
"[a] petition for review must include a statement of the
reasons supporting that review, including a demonstration that any issues being raised were
raised during the public comment period (including any public hearing) to the extent required in
this Part; in all other respects, the petition must comport with the requirements for permit appeals
generally, as set forth in
35 Ill. Adm. Code 105." 35 Ill.Adm.Code §705.2l2(c).
Further, "[t]he Board's review
of permit appeals is limited to information before the
Agency during the Agency's statutory review period, and is not based on information developed
by the permit applicant, or the Agency, after the Agency's decision.
Prairie Rivers Network
v.
2
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
IEPA and Black Beauty Coal Company,
PCB 01-112 (Aug. 9, 2001)
aff'd
at 335 Ill. App. 3d
391,401;
781 N.E.2d 372, 380 (4th Dist. 2002);
Alton Packaging Corp.
v.
PCB,
162
Ill.
App. 3d
731,738,516 N.E.2d 275, 280 (5th Dist. 1987)." American Bottom Conservancy, PCB 06-171,
2007 WL 325720, *5. The Board again reiterated this standard in its March 6, 2008 Order.
Finally, as the Board stated in its March
6, 2008 Order in this case, "[a] permit appeal is
not the proper forum for a citizen to generally challenge the Agency's performance
of its
statutory duties.
See, e.g.
Landfill Inc. v. PCB, 74
Ill.
2d 541, 387 N.E.2d 258, 265 (1978)."
(Order,
3/6108,
pg. 5).
FACTS
Mr. Edwards offered no sworn testimony at the hearing in this case, on April 16, 2008.
Mr. Edwards's own statements were public connnent, rather than testimony:
HEARING OFFICER HALLORAN:
Mr. Edwards, before you
proceed,
it's your choice not to be sworn to. So this is not under
oath.
MR. TOM EDWARDS: Sure. I will be putting it on paper for the
brief. That will be under oath. And this two percent
--
MR. HALLORAN: Pardon me, sir, Mr. Edwards. Mr. Meginnes?
MR. MEGINNES:
If he is not being sworn to present testimony,
then
I'm assuming his connnents will be considered as public
connnent and not as testimony for the record?
HEARING OFFICER HALLORAN: That's my understanding.
The Board will weigh it accordingly.
If he is not being sworn in, it
is considered, I believe, public comment.
MR. MEGINNES: Thank you.
HEARING OFFICER HALLORAN: Thank you, Mr. Meginnes.
MR. TOM EDWARDS: It'sokay with me. * *
*.
(Transcript, pg. II, line 24, through pg. 12, line 17).
3
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Only one witness testified at the hearing in this case, namely, Mr. George Armstrong,
P.E. (Transcript, pgs. 44-54). Mr. Armstrong was qualified, without objection, as
"an expert on
environmental engineering and on compliance with the Illinois Environmental Protection Act
and regulations regarding landfills and hazardous waste management." (Transcript, pg.
47, line
II, through pg. 48, line 7). Hearing Officer Halloran further found that Mr. Armstrong was a
credible witness.
(See
transcript, pg. 55, lines 22-24).
Mr. Armstrong rendered two (2) expert opinions in his testimony. First, Mr. Armstrong
rendered an expert opinion that Permit B-24R
as issued does not violate the Act or Board
regulations:
Q [by Ms. Nair for PDC] Were you familiar with the draft permit
that was promulgated by the IEPA in this matter?
A Yes.
Q
And have you familiarized yourself now with the final permit as
issued?
A Yes.
Q
Have you familiarized yourself with the changes between the
draft permit and the final permit as issued?
A Yes.
Q Do you have an expert opinion regarding whether the permit as
issued will violate the Illinois Environmental Protection Act or
Board regulations?
A Yes.
Q
What is that opinion?
A
It
is my professional opinion that the permit as issued will
not violate the Illinois Environmental Protection Act or Board
regulations.
4
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Q Is that opinion based on your knowledge of the permit and your
expertise in the fields
of envirornnental engineering and
compliance with the Illinois Envirornnental Protection Act and
regulations regarding landfills and hazardous waste management?
A Yes, it is.
(Transcript, pg. 51, line 19, through pg. 52, line 18; emphasis added).
Second, Mr. Armstrong rendered an expert opinion that none
of the points raised in Mr.
Edwards's Amended Petition provides a reasonable basis for a finding that Permit B-24R as
issued would violate the Act or Board regulations:
Q [by Ms. Nair for PDC] Have you reviewed the documents
submitted by Petitioner, Mr. Tom Edwards, to the Pollution
Control Board on March 3rd, 2008?
A Yes.
Q * * *.
Have you reviewed the 13 bases stated for Mr. Edwards'
request for review
of the permit in his amended position?
A Yes.
Q
Do you have an expert opinion regarding whether any of the
bases stated in Mr. Edwards' amended position provide a
reasonable basis for a finding that the permit as issued will violate
the Illinois Envirornnental Protection Act or Board regulations?
A Yes.
Q
What is that opinion?
A
It
is my professional opinion that Mr. Edwards' amended
petition provides no reasonable basis for finding
that the
permit as issued would violate the Illinois Environmental
Protection Act
or Board regulations.
Q
Is your opinion based on your knowledge of the permit, the
amended petition and your expertise in the fields
of envirornnental
engineering and compliance with the Illinois Envirornnental
Protection Act and regulations regarding landfills and hazardous
waste management?
5
TillS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
A Yes.
(Transcript, pg. 52, line 19, through pg. 54, line I; emphasis added).
Mr. Edwards did not cross-examine Mr. Armstrong.
ARGUMENT
1.
The points raised in the Amended Petition are not proper bases for review of
Permit B-24R.
First, it is clear that none of the points listed in Edwards's Amended Petition, even if
demonstrated with evidence, "proves that the permit as issued will violate the Act or Board
regulations." American Bottom Conservancy, PCB 06-171, 2007 WL 325720,
*4;
see also
Order, 3/6/08, pg. 4,
citing
Joliet Sand
&
Gravel, 163 Ill.App.3d 830, 833, 516 N.E.2d 955,958
(3 Dist. 1987), and Prairie Rivers Network v. IPCB, !EPA and Black Beauty Coal Company, 335
Ill.App.3d 391, 401, 781 N.E.2d 372,380 (4 Dist. 2002). Permit B-24R is included in the Record
filed by the Agency as Document
133.
1
Points I, 6, II and 13 (discussed below in greater detail) are not within the scope of
permit issuance or review. Points 2-5,7-10 and 12 request that the Agency mandates additional
testing, and
do not state that Permit B-24R as issued would violate the Act or Board regulations.
Mr. Edwards is apparently seeking either changes
to the law of permit issuance and Agency
oversight (points I,
6, II and 13) or amendment of Permit B-24R to provide for gratuitous
additional testing, without stating the basis for same (points 2-5,7-10 and 12). Neither
of these
requests poses a proper issue for permit review.
1 Where applicable, citations to the Record filed
in
this case by the Agency will reference
materials by "Document Number," pursuant
to the "BOL Imaged Document Index" filed with
the Record.
6
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Second, points 1, 6, 11 and 13 in Mr. Edwards's Amended Petition are not properly
considered
in permit issuance or review:
leA): This appears to
be an impermissible challenge to Agency oversight.
1(B): Closure is not presently
at issue.
1(C)
&
(D):
These comments are not true under Permit B-24R.
6:
In addition to admitting to trespassing at PDC's facility, this point is irrelevant to
Permit B-24R.
It
appears that Mr. Edwards has a gripe with the Division of Air
Pollution Control for the Agency, not the Division
of Land, which issued Permit
B-24R.
11:
This concerns a portion of the facility that was properly closed, pursuant to the
Act and Board regulations, many years ago.
13:
It
is unclear what conclusions should be drawn from Mr. Edwards's comment
herein. This does not appear to
be a criticism of any particular aspect of Permit
B-24R.
Finally,
"Mr.
Edwards represents that he presented testimony at a public hearing on the
draft permit and the same material as a written public comment." (Order, 3/6/08, pg. 4). The
scope
of that oral and written public comment strictly delineates the permissible scope of this
appeal.
If a point was not raised in oral or written public comment, it cannot be the subject of an
appeal.
"A petition for review must include a statement of the reasons supporting that review,
including a demonstration that any issues being raised were raised during the public comment
period (including any public hearing)...."
35 Ill. Adm. Code §705.212(c).
Mr.
Edwards made very limited comments at the public hearing on February 28, 2007, in
this case.
(See
Doc. 71, transcript of public hearing). Of
Mr.
Edwards'swritten public comments,
7
THIS DOCUMENT WAS FILED ELEClRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
three were submitted during the public comment period.
(See
Doc. 69, 79, 83). Mr. Edwards
submitted four additional written public comments after the close
of the public comment period
on March 30, 2007.
(See
Doc. 98, extending the public comment period to May 31,2007, as to
Mr. David Wentworth only). However, even taking into account Mr. Edwards's improperly
submitted public comments sent on May
6, 2007 (Doc. 102), June 18,2007 (Doc. 120, 121), and
July
16, 2007 (Doc. 128), of the thirteen points listed in Mr. Edwards's Amended Petition, it
appears that the following were never raised in public comment or at the public hearing: I(A),
1(C),
2, 3, 4, 5, 7,10,11, 12, 13.
For the foregoing reasons, Mr. Edwards's Amended Petition should be denied in its
entirety, without any need to inquire as to the substantive bases for same.
2.
As a substantive matter, none of the points raised in the Amended Petition or
the Brief proves that Permit B-24R as issued will violate the Act or Board
regulations.
For numerous procedural reasons (in addition
to the reasons stated in PDC's Motion to
Dismiss filed on January 23, 2008), Mr. Edwards's Amended Petition should be denied, without
any need to inquire
as to the substantive bases for same. Nevertheless, and without waiving the
objections in Section I,
supra,
or the objections in the Motion to Dismiss, PDC herein presents
evidence and substantive analysis regarding each
of the points stated in Mr. Edwards's Amended
Petition, and proves that none
of the points demonstrates that Permit B-24R, as issued, will
violate the Act or Board regulations.
PDC notes that Mr. Edwards raised additional arguments for the first time in his Brief
filed in this case (which was apparently received by the Board on May
5, 2008, Mr. Edwards's
deadline for filing same, at 10:54 p.m., by facsimile).
Mr. Edwards subsequently, on May 7,
8
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
2008, faxed a "supplement" to the Briefto the Board (the "Supplement"), which was also placed
in the file
by the Clerk. Clearly, both documents (most clearly the Supplement) are untimely
filed and should be stricken. Also,
Mr. Edwards served neither the Brief nor the Supplement
on PDC or the Agency, and Mr. Edwards failed to file a proof of service with either document.
Pursuant to 35 Ill.Adm.Code §101.302(f), all filed documents must be served on other parties to
the case ("[a]ll documents filed must be served..."), and pursuant to
35 Ill.Adm.Code §101.304,
proof of service of a given document is to be filed at the time such document is filed. However,
again in the interest of efficiency, PDC addresses the new arguments raised in the Brief and the
Supplement herein. Finally, on May 7, 2008, the final day for filing
of public comment, Ms.
Joyce Blumenshine filed public comment
on behalf of the Heart of Illinois Sierra Club ("HOI"),
which is also addressed herein.
At the hearing, PDC offered undisputed expert testimony
(l) "that the permit as issued
will not violate the Illinois Environmental Protection Act or Board regulations" (transcript, pg.
52, lines 10-12), and (2) "that
Mr. Edwards' amended petition provides no reasonable basis for
finding that the permit as issued would violate the Illinois Environmental Protection Act or
Board regulations" (transcript, pg. 53, lines 14-18). Mr. Edwards offered no sworn testimony
whatsoever.
For the convenience
of the Board, PDC below reprints Mr. Edwards'spoints raised in the
Amended Petition, the
new points raised for the first time in the Brief and the Supplement
(which are clearly improperly pled), and the public comments
of HOI, and responds to each, one
at a time.
A.
Amended Petition Point HAl, BriefPoint 2, HOI Point I
Amended Petition Point leA): "From its 1987 beginning PDC's permit was for
2.63 million cubic yards of toxic waste to be put on its hilltop disposal site. That
9
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
limitation still stands. But both PDC and IEPA are saying that limit has not yet
been reached after 20 years
of dumping via what was
originallv
a 10-year permit.
That must be impossible. In tonnage, 2.63 million cubic yards of toxic waste,
according to an expert, is equivalent to 900,000 tons, given the loose, even fluffy
nature
of much or most toxic waste. (It comes in trucks from up to IS states.)
Something is amiss. We need far better oversight."
Brief Point 2: Illegal volume change:
Original volume capacity limit for
waste in the new (post 1987) part of the landfill was originally set at 1.84
million cubic yards, but was upped by PDC and EPA to 2.63 million cubic
yards in 2002. [Permit page V-I]. that is a
huge
43% increase. Public
hearings are required for major changes. One was not held, making that
expansion illegal.
b. Moreover, when the total capacity ofthe seven
(7)
cells ofthis part of
the landfill are added, they total
2.87
million c.y., considerably more than the
stated
2. 63
million c.y. total permitted limited cited on the same page.
c. Also. PDC has evidently exceeded even the
2.63
total volume limit.
The above all needs outside review and investigation.
HOI Point I: "We question the capacity of this landfill and how PDC obtained an
increase in total landfill capacity from the 1,847,200 cubic yards printed on Page
V-I, Section V Landfills, of the 1987 permit [footnote omitted], to the capacity of
2,638,580 cubic yards currently listed as capacity on Page V-I, Revised October
2007
ofthe permit application [footnote omitted].
* * *."
Mr. Edwards cites, without identification, to "an expert" who has calculated that the
facility permitted maximum capacity
of 2.63 million cubic yards should have been reached after
disposal
of 900,000 tons of waste. The "expert" cited by Mr. Edwards has apparently used a
standard waste density
of 680 pounds per cubic yard, which is on par with the unit weight of 606
pounds per cubic yard (3.3 gate cubic yards being equal to one (1) gate ton) used by the Agency
for municipal solid waste ("MSW").
(See
the Agency's "Instructions for Payment of the Solid
Waste Management Fee," pg. 3, and instructions for "Nonhazardous Solid Waste Management
and Landfill Capacity in Illinois: 2006"). However, the density
of the waste received by PDC
does not at all correspond with MSW densities, and is more on the order of 1.11 cubic yards per
ton (1,800 pounds per cubic yard). (PDC Landfill 2006 Annual Capacity Report, submitted to the
Agency, dated February 27, 2007).
10
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
PDC will continue to landfill to the lines and grades established in Permit B-24R, which
precludes any increase
of capacity beyond what was authorized by the permit prior to its
renewal. The initial 1987 permit utilized a calculation termed "net" disposal volume rather than
calculated airspace capacity. (Initial permit application, dated May 8, 1987, Section
I, page 1-8).
"Net" disposal volume is calculated as receipt of inbound waste, only without daily and
intermediate cover volume included.
In
contrast, calculated airspace capacity (the basis for the
current capacity figure) is determined by calculating the volume within the lines and grades
of
the landfill plans. PDC's permit modification submittal of August, 2002, provided a design
report which calculated the actual airspace
of the original 1987 permit capacity. (Design Report
- Proposed Reconfigured Landfill, August 5, 2002). The waste disposal capacity calculations
were performed using the digital terrain model (DTM) software, AutoDesk Land Development
Desktop Version 3 (LDD). (Id., pg. I). The design report was prepared by George
L. Armstrong,
a Professional Engineer registered in Illinois (who testified
as an expert in the hearing in this
case), and was reviewed and validated by the Agency's permit section. (Permit B-24-M-56,
dated December 18, 2002).
The Agency issued Permit B-24-M-56 on December 18, 2002, which permit included the
revised capacity figures. Permit B-24-M-56 was not appealed. Permit B-24R does not provide
for any increase in the maximum capacity
of the landfill.
(See
the Agency's Response to Public
Comments, Doc. 131, pg. 44, noting that "[t]he capacity constraints PDC has had via the original
1987 permit and under which
it continues to operate, via the 2007 renewed RCRA permit, are
those originally established under the 1987 permit"). Therefore, Permit B-24R does not violate
the Act or Board regulations.
11
THIS DOCUMENT WAS FILED ELEClRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
B.
Amended Petition Point HB), HOI Point VI
Amended Petition Point l(B): "The much extended, and also modified permit,
was last to expire in 2006. But EPA summarily extended that deadline to 2009.
We need to focus on closure. PDC'slandfill is the
only
one in the nation that sits
directly over,
or
even close to a city's water supply aquifer -- and also
immediately upwind
of the air a city must breathe."
HOI Point
VI:
"* * *
We ask the Illinois Pollution Control Board's
consideration for stronger protections for our community and our aquifer, and that
the Agency be required to set a date certain for closure
of the Waste Stabilization
Plant, waste storage silos, and other temporary storage areas, within two years
after the final landfill waste cell closure.
* * *."
The expiration date of the existing permit was stayed in accordance with Section 10-
65(b) of the Illinois Administrative Procedures Act. (5 ILCS 100/1O-65(b)). Further, the Agency
has the power to grant continuation
of an existing permit, as long as (a) a renewal application has
been filed at least 180 days prior
to the expiration of the effective permit and (b) "[t]he permittee
has submitted a timely application pursuant to 35
Ill.
Adm. Code 703.181 (RCRA) ... that is a
complete (pursuant to Section 702.122) application for a new permit..
.." (35
Ill.
Adm. Code
§702.125(a);
see also
35
Ill.
Adm. Code §703.I25, setting the time period for filing of a new
application). PDC filed its application for renewal on May 7,1997, more than 180 days prior
to
the expiration of the effective permit.
(See
transcript, pg. 51, lines 2-10; application (Doc. 1-12)).
Therefore, the fact that the extensions
of the original permit were granted by the Agency does
not cause Permit B-24R to violate the Act or Board regulations.
C.
Amended Petition Point HC)
Amended Petition Point l(C): "The disposal area was originally permitted for
64
acres. That has been expanded by the EPA to 75 acres,
ignoring
the original
cubic yard limitation."
Mr. Edwards has incorrectly calculated the disposal area. Permit B-24R does not permit
an expansion
ofthe facility from 64 acres to 75. The original permit area was 90 acres of which
12
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
74.1 acres were permitted for land disposal. (Permit 24 (the originally issued permit), dated
November
4, 1987, pg. V-I). Permit B-24R authorizes only
64 acres
for land disposal due to the
modification submitted in August 2002, which
reduced
the disposal acreage.
(See
Permit B-24-
M-56, dated December 18, 2002; Permit B-24R (Doc. 133), pg. V-I). Therefore,
no increase in
the initial acreage has been permitted. Permit B-24R does not provide for any increase in the
maximum acreage
of the landfill, and therefore does not violate the Act or Board regulations.
D.
Amended Petition Point l(D)
Amended Petition Point leD):
"A height limitation is evidently still in effect. But
PDC has requested permission to
go up another 45 feet (5 stories) higher than the
4 to 5 stories high it already
is. That would make it,
by far,
the highest hill in that
area."
Permit B-24R does not provide for any increase in the maximum height of the landfill,
and therefore does not violate the Act or Board regulations.
E.
Amended Petition Point 2
Amended Petition Point
2: "Overall, virtually all required data collection and
reporting is left by the EPA for PDC to do itself, then send reports to EPA. EPA
must take more direct responsibilitv."
The Agency has the authority to perform as much
of the required data collection and
reporting
as it desires. The function of a permit is not to mandate actions on the part of the
Agency, rather, it is to impose operating conditions on the permittee (PDC). The Agency can
inspect the PDC No. I facility whenever it
so chooses. Section 702.149 of the Illinois
Administrative Code provides
as follows:
A permittee must allow an authorized representative
of the
Agency, upon the presentation
of credentials and other documents
as may be required by law,
to do any ofthe following:
a) Enter at reasonable times upon the permittee's premises where a
regulated facility or activity
is located or conducted, or where
records must be kept under the conditions
of this permit;
13
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
b) Have access to and copy, at reasonable times, any records that
must be kept under the conditions
of this permit;
c) Inspect at reasonable times any facilities, equipment (including
monitoring and control equipment), practices, or operations
regulated or required under this permit; and
d) Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the
appropriate Act, any substances or parameters at any location.
(35 Ill. Adm. Code §702.l49). Moreover, Standard Condition Number 12 of Permit B-24R
specifically authorizes the Agency to sample or monitor the groundwater monitoring wells for
the purposes
of assuring permit compliance, essentially repeating 35 Ill. Adm. Code §702.149.
(See
Permit B-24R (Doc. 133), pg. VIII-2). Therefore, the fact that Permit B-24R does not
require the Agency to perform more
ofthe required data collection and reporting does not violate
the Act or Board regulations.
F.
Amended Petition Point 3, Brief Points I and 10
Amended Petition Point 3: "Until now collection oftest samples from the present
21 monitoring wells has been, normally, done jointly by PDC with an EPA
representative present on a quarterly basis. (There are
25 such well sites listed,
but 4 are reported as never installed.)
However, it is PDC that tells EPA on what day to be there for drawing
samples. EPA itself needs to better assure the representiveness
of the sample
contents"
Brief Point I: Independent inspections
and testing direly needed: EPA's
permit plus virtually the entire responsibility on PDC for monitoring, testing, and
reporting on its
own
landfill and performance rather than vice versa. EPA
inspectors say they visit the landfill once, occasionally twice, a month. In effect,
the EPA
is having, the "permittee" inspect himself. In contrast, the City of Peoria
has inspectors on the job checking road and sidewalk projects the entire 8-hour
workday.
Brief Point
10: Taking
&
testing groundwater samples: PDC sets the day,
time and means for collecting samples, not the EPA. Also, the bulk
of the testing
of the samples is reportedly given over by the EPA to PDC, which PDC also does
in its own Peoria lab.
14
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Although PDC notifies the Agency when samplers will be on site to collect samples to
give the Agency an opportunity to collect duplicate ("split") samples for its own analysis, the
Agency determines whether it will collect split samples. PDC is required to certify that the
samples from the groundwater monitoring wells are "representative."
(See
35 Ill. Adm. Code
§702.l50(a), providing that "[s]amples and measurements taken for the purpose
of monitoring
must be representative
of the monitored activity"). The Agency has the authority to perform
"surprise" inspections
of the PDC No.1 facility pursuant to 35
Ill.
Adm. Code §702.l49,
supra.
The Agency can additionally collect groundwater samples from the monitoring wells on its own,
without PDC's assistance, at its option. (Id.)
As above, Permit B-24R does not mandate actions
on the part
of the Agency, rather, it imposes operating conditions on PDC. Therefore, the fact
that Permit B-24R does not require the Agency to take additional steps to "assure the
representativeness
of the sample contents" does not violate the Act or Board regulations.
(See
also
the discussion in subsection 2(1), below).
G.
Amended Petition Point 4, BriefPoint 3, HOI Point II
Amended Petition Point 4: "Collection of samples from test wells, formerly done
quarterly, are now to be collected semi-annually,
and
a number only annually.
(Even EPA protested this change.) Leaks into our aquifer could
go on for half a
year without being detected under this arrangement.
Continued quarterly
monitoring is a vital safeguard."
Brief Point
3: Reinstate quarterly monitoring for leaks, problems. Testing of
water samples from monitoring wells, now done quarterly, is proposed to instead
be collected semi-annually and a number only annually. Leaks could then
go on 6
to 12 months without discovery, greatly hindering leak detection and increasing
pollution. Continued quarterly monitoring,
at the least, is a vital safeguard.
Even more
so after landfill closure, as problems worsen over time.
HOI Point II: "On Page VI-5, Revised October 2007 of the RCRA Part B Permit,
letter
E, Monitoring Parameters, [footnote omitted] the newly issued operating
permit allows a change to semi-annual detection monitoring
of up-gradient and
point
of compliance wells. This is not protective of public health and safety. We
15
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
ask that monitoring be required quarterly, as in the previous operating permit.
* *
*"
Regarding point 4, the PDC No. 1 landfill is currently in "detection monitoring," meaning
that groundwater samples collected over the life
of the facility have not detected any statistically
significant increases in constituents that are attributable to the landfill.
(See
discussion in
subsection 2(K), below). The relevant regulations require semi-aunual monitoring:
"A sequence
of at least four samples from each well (background and compliance wells) must be collected at
least semi-aunually during detection monitoring." (35
Ill.
Adm. Code §724.l98(d». Therefore,
the fact that Permit B-24R requires semi-aunual monitoring rather than more frequent monitoring
does not violate the Act or Board regulations.
In
any case, the groundwater monitoring requirements for hazardous waste treatment,
storage, and disposal facilities are just one aspect
of the RCRA hazardous waste management
strategy for protecting human health and the environment from accidental releases
of hazardous
constituents. Detection monitoring
is phase one of the groundwater monitoring program.
(See
discussion in subsection 2(K), below). Under this phase, facilities monitor groundwater in order
to detect and characterize any releases
of hazardous constituents into the uppermost aquifer.
Groundwater samples are collected from the monitoring wells and analyzed for specific indicator
parameters and other waste constituents or reaction products that indicate that a release might
have occurred. At the PDC No. 1 facility, samples are collected from the point
of compliance
(i.e.,
wells downgradient of the waste management unit) and are compared to the background
samples taken from the upgradient wells.
(See
35
Ill.
Adm. Code §724.l98). These groundwater
samples are analyzed
to determine if a statistically significant increase in the levels of any of the
monitored constituents has occurred.
16
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Given that groundwater in the Upper Aquifer travels less than 10 feet per year, semi-
annual monitoring
is appropriate. (PDC Landfill 2006 Annual Groundwater Flow Evaluation
Report, submitted
to the Agency, dated June 21, 2007). Because the downgradient property
boundary
for the PDC No. I facility is more than 250 feet from its point of compliance, semi-
annual monitoring will identify the quality
of groundwater more than 20 years before such
groundwater would travel past the PDC property boundary.
H.
Amended Petition Point 5, Brief Point I
Amended Petition Point 5: "EPA says an inspector regularly visits the landfill
site. But those visits are only once, maybe twice, a month, and are only visual.
This procedure is
not
spelled out in the permit. During city highway-sidewalk
construction, inspectors are constantly present.!"
Brief Point
I:
Independent inspections and testing direly needed:
EPA's
permit puts virtually the entire responsibility on PDC for monitoring, testing, and
reporting on its
own
landfill and performance rather than vice versa EPA
inspectors say they visit the landfill once, occasionally twice, a month. In effect,
the EPA
is having, the "permitee" inspect himself. In contract, the City of Peoria
has inspectors on the job checking road and sidewalk projects the entire 8-hour
workday.
As above, Permit B-24R does not mandate actions on the part
of the Agency, rather, it
imposes operating conditions on PDC.
The Agency has authority to implement its inspection
procedures and intervals in accordance with the Act and regulations and
is not bound by PDC's
permit conditions.
(35 Ill. Adm. Code §702.l49,
supra).
The Agency has the authority to
perform "surprise" inspections
of the PDC No.
I
facility, and can inspect the facility as
frequently as it sees fit. (Id.) Therefore, the fact that Permit B-24R does not require the Agency
to perform additional inspections of the PDC No.
I
facility does not violate the Act or Board
regulations.
17
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
1.
Amended Petition Point 6, BriefPoint 7, HOI Point V
Amended Petition Point
6: "EPA firmly asserts there is no air pollution from the
site. HOWEVER, EPA was totally unaware that PDC has vents on the side
to
release gaseous fumes to the air. In an unauthorized visit, I found such vents,
smelled their extremely acrid emissions, and reported their location to the EPA.
(To his credit, when I told the EPA inspection manager he acknowledged he was
unaware
ofthe vents and asked me where they were.)
EPA has said there is some dust around where the waste hauling trucks
unload, says it is captured, and that elsewhere on the site any dust pollution is
inconsequential.
BUT new research elsewhere shows gaseous toxic air pollutants from such
landfills are very consequential
to unborn babies and older people."
Brief Point
7: Air pollution: The denied reality: The IEPA has long been
saying there is no air pollution from the PDC landfill. But its closest monitor is
4.5 miles away on a bank building roof. And recent detailed studies (noted
above) in New
York State, New Jersey, and the European Union show air
pollution to be a major health problem for people living in the vicinity of
toxic waste landfills. In an unauthorized visit into the PDC landfill last year I
found behind a knoll a cluster ofpipes 12 to 15 inches in diameter sticking up 7 or
more feet out
of the ground. A whiff of the fumes they were venting sent me
reeling backwards. I reported this to an IEPA inspector
of the site. He replied
that he and the EPA were unaware of any air pollution or vents for emissions on
PDC's site, and asked me where the vents were. I trust he reported this vital
knowledge to higher-ups. Other air pollutants from the site are certainly being
dispersed by PDC elsewhere. This needs to be thoroughly
and publicly
investigated by the
federal
EPA, which has suzerainity over the site.
Public Comment Point
V:
"* * *.
HOI requests, as does Mr. Edwards, that the
IPCB direct the Agency to require additional air monitoring. We ask that air
monitoring be done at the perimeter
of the landfill, and in adjacent
neighborhoods. We would like
to see regular reporting, and constant monitoring
during winds. We ask that restrictions
on dumping during high wind conditions
be added.
* * *."
There is no general requirement in the Act or Board regulations that a permit issued by
the Division
of Land address air pollution with the exception of compliance with 35
Ill.
Adm.
Code §§724, Subparts
AA,
BB, and CC. (35 Ill. Adm. Code §§724.930-991). The PDC No.1
facility is exempt from these Subparts because PDC does not operate any of the processes
subject
to Subpart AA or accept the types of wastes which would render Subparts BB or CC
18
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
applicable.
(See
the Agency's Response to Public Comments (Doc. 131), pg. 25). Land and air
are dealt with separately under the Act and Board regulations. Therefore, the fact that Permit B-
24R does not address air pollution does not violate the Act
or Board regulations.
In any case, PDC has an air permit for the PDC No. 1 facility, namely, the Lifetime
Operating Permit issued by the Agency, Division
of Air Pollution Control, on April 24, 2002,
entered
as PDC Exhibit 2 at the hearing in this case. Mr. Edwards's assertion that there is air
pollution emanating from the site is simply incorrect. As the Agency noted in its Response to
Public Comments, "[t]his landfill represents a very small source
of air emissions and has a
negligible effect on air quality." (Agency Response to Public Comments (Doc. 131), pg. 36).
PDC is required to monitor and report its air emissions in accordance with the Clean Air Act and
its permits, which are enforced by the Agency'sDivision
of Air Pollution Control. PDC is in full
compliance with its air permits monitoring and reporting requirements.
(See
the Agency's
Response to Public Comments (Doc. 131), pgs. 22-23).
J.
Amended Petition Point 4, BriefPoint 10
Amended Petition Point 7: "The EPA has the bulk of the test well samples
analyze
by PDC's own laboratory, I have been advised.
This is a rather
incestuous arrangement. Independent testing is needed."
Brief Point 10:
Taking
&
testing groundwater
samples: PDC sets the day,
time and means for collecting samples, not the EPA. Also, the bulk
of the testing
of the samples is reportedly given over by the EPA to PDC, which PDC also does
in its own Peoria lab.
Permit B-24R is silent as to which laboratory should conduct the required groundwater
analysis. There is no requirement in the Act
or Board regulations that testing of groundwater
samples be performed by a laboratory that is not affiliated with an operator. In fact, there is no
requirement in the Act
or Board regulations that requires that testing of groundwater samples be
performed by a laboratory at all - PDC could, under the Act and Board regulations, perform its
19
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
own groundwater analysis in-house. Therefore, the fact that Permit B-24R does not require that
groundwater sample analyses be performed by a laboratory other than PDC Laboratories,
Inc.
(the "Lab") does not violate the Act or Board regulations.
The Board regulations provide, in part, that "[t]he permittee must at all times properly
operate and maintain all facilities and systems
of treatment and control (and related
appurtenances) that are installed or used by the permittee
to achieve compliance with the
conditions
of its permit. Proper operation and maintenance includes ... adequate laboratory and
process controls, including appropriate quality assurance procedures."
(35 Ill. Adm. Code
§702.l45). Although the Board regulations
do not require that a laboratory perform groundwater
sample analysis, PDC has elected
to use a laboratory that is certified by the State of Illinois. The
Lab is certified, as is evidenced by its Environmental Laboratory Accreditation issued by the
Agency's Environmental Laboratory Accreditation Program, entered as PDC Exhibit 3 at the
hearing in this case.
In addition, Permit B-24R requires that "[l]aboratory methods must be those specified in
Test Methods for Chemical Analysis
of Water and Wastes, EPA-600/4-79-020, or an equivalent
method as specified in the approved Waste Analysis Plan." (Doc. No. 133, pg. VIII-3). During
every groundwater sampling event, personnel from the Agency may be on-site
to obtain "split"
groundwater samples from the facility.
(See
35
Ill.
Adm. Code §702.l49(d)). These split
groundwater samples are collected by personnel from the Lab under the on-site direction and
observation
of the Agency's personnel. The wells from which the groundwater is to be collected
for split sampling are chosen by the Agency's personnel. The collected split samples are
transported by the Agency's personnel to the Agency's own environmental analytical laboratory
under the Agency's chain-of-custody protocol. The Agency compares PDC'sreported test results
20
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
to its own lab's test results to determine whether or not the results are consistent. The Agency
has never reported any significant inconsistencies between the results
by the two labs.
Finally, in addition to the split sampling with the Agency, the Lab is required by its
contract with PDC to randomly select a well from which a duplicate sample is collected. The
duplicate sample is submitted to a third-party NELAC-certified laboratory under proper chain-
of-custody protocol. A different well is chosen for each duplicate sampling event. The duplicate
samples are analyzed
in accordance with the latest version of applicable U.S. Enviromnental
Protection Agency ("USEPA") SW-846 methods, and are compared with the Lab's results to
confirm the integrity
ofthe Lab'sdata.
(See
SW-846 online
2
).
Through the above-described processes, the Lab routinely confirms its data by reference
to the Agency's laboratory and to a third-party NELAC-certified laboratory. These methods
of
confirmation are approved by the Agency and by the USEPA. There is no basis, whatsoever, for
any implication that the Lab is not correctly analyzing groundwater samples from the PDC
No.1
facility.
K.
Amended Petition Point 8
Amended Petition Point
8: "The federal EPA authorizes 843 toxic chemicals to
be put in this landfill. Yet still another, unauthorized and worrisome PCBs, have
been reported there, too. But
just semi-annual checking for only 24 chemicals is
mandated under the revised permit"
Mr. Edwards admits that Permit B-24R requires analysis
of 24 compounds in the
groundwater monitoring samples collected pursuant to Permit B-24R. In fact, Permit B-24R
requires analysis
of 24 hazardous constituents and 9 additional parameters on a semi-annual
basis, and
58 constituents and 9 parameters on an annual basis. (Permit B-24R (Doc. 133), pgs.
VI-6 to VI-8).
2 http://www.epa.gov/SW-846/main.htm.
21
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
PDC is in the "detection monitoring" program authorized by the regulations:
Groundwater parameters monitored in the uppermost aquifer
below the facility indicate that, at the present time, no groundwater
impacts have occurred.
Therefore, a Groundwater Detection
Monitoring Program meeting the requirements
of 35 Ill. Adm.
Code 724.1198 shall be implemented at the facility.
(Doc. 133, pg. VI-I;
see also
35
Ill.
Adm. Code §724.l98). Only those facilities that can
demonstrate that no impacts to groundwater have occurred are allowed to operate in the detection
monitoring program.
(See
discussion of higher intensity "Compliance Monitoring" in the
Agency's Response to Public Comments (Doc. 131), pgs. 19,31,35-36). PDC has more than
25
years of experience with monitoring and reporting groundwater quality at its facility.
(See
historical groundwater monitoring reporting to the Agency, begiuning in 1983). Thousands of
parameter analyses have occurred including analysis of the entire 40 CFR Appendix IX list of
hazardous constituents. (Id.) Based on the 25 plus years of groundwater quality monitoring, and
the fact that PDC
is in detection monitoring, the Agency selected appropriate parameters for the
routine detection monitoring program. Again, the parameter selection
is consistent with Illinois
law and regulation. The Agency may at any time require modification
of Permit B-24R to
include additional parameters should the Agency determine it is necessary to protect human
health and the environment.
(See
Permit B-24R, §VI(K)). Therefore, the fact that Permit B-24R
requires analysis
of groundwater monitoring samples for 33 parameters semiannually and 67
parameters annually does not violate the Act or Board regulations.
1.
Amended Petition Point 9
Amended Petition Point
9:
"The 843 allowable hazardous chemicals are
preponderantly volatile, i.e., will evaporate into the air, we are informed.
We
need better surveillance and controls."
22
THIS DOCUMENT WAS FILED ELEClRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
The Act and Board regulations concerning monitoring for particular constituents takes
into account the volatility
of certain of those constituents. As the Agency correctly noted in its
Response
to Public Comment, PDC may not accept hazardous waste requiring treatment prior to
disposal that cannot be treated through the inorganic waste stabilization processes used at the
facility. (Agency Response to Public Comments (Doc. 131), pg. 23). Because the PDC
No.1
facility is not designed to treat hazardous organic wastes, PDC is prohibited from receiving
hazardous organic wastes that need treatment for organic constituents prior to disposal.
As
required by the conditions in Permit B-24R, an incoming hazardous waste therefore will have an
average volatile organic chemical concentration
of less than 500 parts per million by weight, or
0.05%.
(See
id., pgs. 23-24). Also, disposal of these wastes has been factored into the air permit
for the PDC No.1 facility issued by the Agency, Division
of Air Pollution Control. (PDC Ex. 2).
Therefore, the fact that Permit B-24R does not require additional, gratuitous surveillance and
controls to account for the alleged volatility
of certain constituents at the facility does not violate
the Act or Board regulations.
M.
Amended Petition Point 10, BriefPoint 9, HOI Point III
Amended Petition Point
10: "Testing for highly toxic and very volatile mercury
has not been included in EPA monitoring, though it is permitted in the landfill.
Is
this because it quickly volatilizes into the air?
It
needs to be banned. (Lead, too,
is a concern; Europe's landfills ban it.)"
Brief Point
9: Test for and prevent escape of very volatile
&
highly toxic
mercury. Only 2% by weight
of extremely toxic mercury is allowed in the
present and proposed permit. But for a 5-ton load
of waste, 2% would amount to
200 pounds - a whale
of a lot. But because only grab samples from the top of any
incoming load are tested, and loads may be left sitting out for weeks or months
after arrival, any mercury would have volatilized into the city's air. Its actual
quantities are, therefore, unaccountable.
HOI Point III: "HOI asks specifically, as Mr. Edwards does, that monitoring and
testing for mercury pollution be required. The current Operating Permit states in
several locations [footnote omitted] that wastes cannot be accepted with over
2%
23
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
of mercury by weight, yet there is no monitoring well testing for mercury.
Considering that up to 2%
of weight of wastes can be mercury, testing should be
required. The lack
of mercury testing seems to be a distinct disconnect between
hazardous waste going into the landfill, and adequate monitoring to protect the
public health and safety."
Mercury is not barmed from land disposal in the United States or in the State
of Illinois.
The Agency has appropriately conditioned Permit B-24R to protect human health and the
environment in regard to mercury. Special Condition X.E.1
of Permit B-24R states that PDC
"carmot receive wastes at the stabilization facility
if the waste contains over 2% (by weight) of
mercury." (Permit B-24R (Doc. 133), pg. X-3). Further, PDC voluntarily imposed a restriction in
its Waste Acceptance Criteria, which are part
of the approved Waste Analysis Plan for the PDC
No. I facility. Condition number 8
of the approved Waste Analysis Plan restricts PDC from
accepting any metallic mercury at its facility. (Application for renewal permit, vol. I (Doc. I, pg.
116
of 407), Appendix C-I, pg. 2, item 8 ("Metallic mercury will not be accepted")). Further,
PDC does monitor emissions from its waste stabilization facility and reports the emissions in its
armual Toxic Release Inventory ("TRI"). (USEPA Toxic Release Inventory Database
3
, PDC
2006 Report
4
). The value of mercury reported in PDC's 2006 TRI was 0.000001 pounds.
5
Therefore, the fact that Permit B-24R does not itself completely bar disposal of mercury at the
PDC No. I facility does not violate the Act or Board regulations.
N.
Amended Petition Point II, BriefPoint 8
Amended Petition Point
II: "The "barrel trench," i.e., toxic waste buried in
1,000s
of metal barrels:
It
is highly unlikely that not one barrel isn'tdisintegrating
3 http://www.epa.gov/tri/
4 http://oaspub.epa.gov/enviro/tris_web.dcn_details?tris_id=61615PRDSP4349W (links to
reports from 1998 through 2006)
5 See Section 5 ofPDC's 2006 TRI form pertaining to mercury compound emissions into the air:
http://oaspub.epa.gov/enviro/tri
jorrnr---.partone.geUhisone?rptyear=2006&dcn_num=1306204
247593&ban_flag=Y. The USEPA rounded down the total emissions from 0.000001 pounds to
zero (0) pounds.
24
THIS DOCUMENT WAS FILED ELEC1RONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
from rust, which has or will leave 50,000 tons of toxic waste free in the soil just
above the aquifer (as is the rest
of the landfill) from which the Peoria area pumps
most
of its water."
Brief Point
8:
Barrel trench: This needs an official public investigation! The
metal barrels certainly must all be rusted away and their toxic contents loose.
This trench, reported as containing 35,000 cubic yards of waste, was in operation
from 1986 to 1990.
It
must be venting pollutants to the air.
But
a groundwater
monitoring well slated for installation
under
the barrel trench has yet to be
installed 20 years later.
The "barrel trench" is a closed portion of the PDC No. 1 facility. Mr. Edwards presented
no evidence that any
of the containers in the unit are degrading. The disposal unit in question
was properly constructed according to then-current regulations, was properly closed according to
current regulations, and is currently under post-closure care. (Supplemental Permit No. 79-0123,
dated January 11, 1979; Permit B-23-M-40, dated October
8, 1999, regarding acceptance of
closure activities). As the containers of waste are in an anaerobic condition, it is reasonable to
believe that they are intact. Further, the purpose
of the containers was for shipping waste, not
permanent contaimnent. The contaimnent function is served by the properly-constructed,
operated, and closed unit. As the Agency correctly noted
in its Response to Public Comment, the
unit operated after RCRA became effective. (Agency Response to Public Comment (Doc. 131),
pg. 48). The unit is addressed
in the post-closure section of Permit B-24R. (Permit B-24R (Doc.
133), Section VII). Permit B-24R requires appropriate maintenance
of the final cover,
maintenance
of the leachate collection systems, groundwater monitoring to identify releases to
groundwater, and corrective action requirements should any problems arise in the future. (Id.)
Therefore, the fact that Permit B-24R does not further address the "barrel trench" does not
violate the Act or Board regulations.
25
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
O.
Amended Petition Point 12
Amended Petition Point 12: "All of the 5 barrel trench monitoring wells are listed
in EPA's original permit
as "upgradient". Doesn't this mean the groundwater is
monitored going into the barrel trench rather than
after
it goes through? EPA says
it now will require a "downgradient" well
to be installed. When? Will this test
for groundwater traveling
through
the barrel trench into the city's drinking water
sources? Is one enough? Who will
do the testing?"
HOI Point
IV: "While five upgradient monitoring wells exist for the Barrel
Trench Area, and older parts
of the landfill outside the C-Cells, there are not
adequate downgradient monitoring wells for the older parts
of the landfill. HOI is
concerned that the Agency has not required as many downgradient monitoring
wells for the older sections as up gradient monitoring wells.
Additional
downgradient test wells should be required
to monitor the Barrel Trench, Part A,
Part
B, and the additional pre-regulation waste area on the west side of the site."
Permit B-24R provides a point
of compliance for determining groundwater quality in
conformance with law and regulation which includes monitoring
of the closed landfill areas
(including the "barrel trench") as well
as the active landfill areas of the facility. (Permit B-24R
(Doc. 133), pg. VI-2, Sections VI, VI-A, and VII). Further, the Agency imposed a condition in
Permit B-24R requiring PDC
to install an additional well between the "barrel trench" and the
active Area C landfill units. (Permit B-24R (Doc. 133), pg. VI-3). This well will serve
to provide
an early indicator
of groundwater quality immediately down-gradient of the "barrel trench."
(See
Agency Response to Public Comments (Doc. 131), pgs. 13, 27, 30, 51 ("due to the public's
concern
... the [Agency] has required PDC to install another groundwater monitoring well
specifically downgradient
of Area 1, which contains the Barrel Trench unin). PDC will be
required to install the well once the issued permit becomes effective. (Permit B-24R (Doc. 133),
pg. VI-3). There is nothing in the fact that Permit B-24R requires this additional well that
violates the Act or Board regulations.
26
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH TIlE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
P.
Amended Petition Point 13
Amended Petition Point 13: "EPA says the flow rate of groundwater through the
aquifer's porous sand and gravelly soil is only 6 feet per year!
It
doesn't give the
source of that statistic. New and better data is direly needed from independent
sources."
Mr. Edwards disputes the validity of data regarding the groundwater flow velocity
beneath the PDC No. 1 facility.
Mr. Edwards offered no technical data to dispute the flow
velocity included in
PDC's permit application. The Agency's Response to Public Comments
references the most recent calculated flow velocity derived from an average
of 8.03 feet per year
in
the northern portion
of the facility and an average of 6.40 feet per year in the southern portion
of the facility. (Agency Response to Public Comments (Doc. 131), pgs. 13, 18, 20). This flow
velocity is based on site-specific data developed and certified
by John
R.
Berry, an Illinois
Registered Professional Geologist. (PDC Landfill 2006 Annual Groundwater Flow Evaluation
Report, submitted to the Agency, dated June 21, 2007, pg. 3 and Table
6). The reported values
also comport with historical flow velocity calculations developed and reported
to the Agency.
There is nothing in the fact that these groundwater flow velocity figures were used that violates
the Act or Board regulations.
0.
BriefPoint 4
Brief Point
4:
Much leaking reported from landfill's new section by
independent consultants.
It
must be solved.
Or it will be a constant, growing
hazard for the Peoria area, as the landfill sits over its drinking water aquifer.
But
none
of this leaking was found or reported either by PDC or the IEP
A. A
county hired engineering consultant found Cell No. I to be leaking. But a
privately hired geo-hydrologist Charles Norris
of Denver, CO, found that all
seven cells
of the newer part (built since 1987) of the landfill, all with liners to
prevent leaking,
in fact do leak.
Even the newest ones with "double liners" are
leaking, probably straight down through the bottom, he reported. (Therefore
likely missing the monitoring wells.)
27
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
Mr. Edwards falsely asserts that landfill cells at PDC No. 1 facility are leaking. As
previously stated, PDC No. 1 facility is in the detection monitoring program under RCRA.
(permit B-24-M-57, dated February 14,2003, page VI-I; Permit B-24R (Doc. 133), page VI-I).
This means that no impact is occurring to the groundwater from the facility. Further,
no expert
testimony exists that asserts
PDC is having any impact on the groundwater. The references used
in
Mr. Edwards's Brief Point 4 are the same arguments used by opponents in PDC's siting
appeal
(PCB 2006-184, filed June 7, 2006) in which the Board itself ruled "the County's
recommended finding that the 'landfill may already be leaking into the aquifer'
is speculation
rather than fact." (June 21, 2007 Board Opinion). No evidence exists that contradicts the
conclusions
of PDC, the Agency and the Board that no groundwater impact is occurring at the
PDC No.1 facility. There
is nothing in the Record to show that Permit B-24R violates the Act or
Board regulations.
R.
BriefPoint 5
Brief Point
5: Pre-law, unlined section of landfill is ignored and likely
leaking.
Must be monitored. PDC's landfill has been in operation 79 years, 58
years before the state began in 1987 requiring plastic liners, drains, etc. Because
this older but larger section is
"pre_law" the EPA does little if any inspection and
monitoring
of it.
(Love Canal, N.Y., had a pre-regulation landfdl. Residents there went to
Washington
and pounded on Congressional doors to get action to relieve
them
of the pollution sickening their community. 750 homes were razed.
It
woke up EPA and the nation. Congress then set up a massive fund to help
the host
of other places with pre-law dumps.
It
quickly ran out of money.)
Mr. Edwards's claim that the "pre-law, unlined section of landfill is ignored and likely
leaking" is false. PDC operated a solid waste landfill unit from
1968 to 1979. This unit was
properly permitted first through the Peoria County Health Department (1968) and then
by the
lEPA (1974). (Supplemental Permit
No. 1974-36-DE, dated September 16, 1974). The units
were properly closed according to then-current regulation. (Permit B-23-M-40, dated October
8,
28
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
1999, regarding acceptance of closure activities). As required by Permit B-24R, this unit
(identified
as a solid waste management unit) must be properly maintained for sufficient cover
and vegetation throughout the life
of Pennit B-24R. (pennit B-24R (Doc. 133), pg. XI-I).
Further, a Phase I RCRA Facility Investigation ("RFI") was perfonned to detennine
if any
corrective action was required for the unit. (Facility Investigation Report, dated May 31,
1991
(Doc. 18). Both the USEPA and the Agency have reviewed the RFI report and have concluded
that
no further action is necessary at this time beyond the pennit requirements to maintain cover.
(USEPA letter dated June 27, 1991; Pennit B-24R
(Doc. 133), pgs. XI-I, A.4). There is nothing
in the Record to show that Permit B-24R would violate the Act or Board regulations in relation
to this argument.
S.
BriefPoints 6 (first) and 12, HOI Point VI
Brief Point 6 (first): A dangerous location for people. As stated above, Peoria
is the nation's only metro area with a toxic waste landfill sitting over the city's
main water source, and immediately upwind
of a densely populated area.
Research in New Jersey and five European Union countries of communities
near toxic waste landfills showed significantly higher rates of birth defects,
premature births
and in New York State a 15% higher rate of strokes. Air
pollutants from landfills
are the main suspect. Peoria Co reports a very high
infant mortality rate.
Brief Point
12: Why is this landfill for toxic waste located right in the heavily
populated
area when there are over 100,000 acres of former stripmine land
in the 4-county Peoria area, and much more elsewhere? The IEPA says the
legislature has given it no authority to take into account "location," only
operation rules,
and that location is up to the land owner and local officials.
This
is not a landfill siting or location case. Pennit B-24R is necessary to provide for the
proper operation, monitoring, closure, and post-closure care
of an already existing RCRA
facility.
The location of the facility does not constitute a violation of the Act or Board
regulations.
29
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
T.
BriefPoint 6 (second)
Brief Point 6 (second): Peoria County has by far the highest chemical Toxic
Release Inventory
of any county in Illinois, 4.3 times higher than Cook
County's (Chicago),
and 16th highest in the nation, according to a 2002
USEPA survey.
In the survey PDC'stoxic releases were over 21 times higher
than the next highest in the county, which was ADM's ethanol plant.
The Toxic Release Inventory (or "TRI," as defined above) is a required report which
is
submitted to the USEPA for the purpose of inventorying toxic "releases," which means all toxic
substances treated, disposed of, or stored by any person. (USEPA TRI Database, Basic
Information
6). The TRI does not distinguish between lawful treatment, storage and disposal of
wastes (such as PDC conducts), and uncontrolled, illegal discharges of chemicals into the
environment. PDC
is properly and lawfully land disposing of wastes and properly reports its
calculated volumes to USEPA. Therefore, the TRI
for Peoria County, Illinois, includes all the
wastes properly disposed
of at the PDC No. I facility. The TRI does not support a finding that
Permit B-24R violates the Act or Board regulations.
U.
Brief Point
II
Brief Point
II:
Problem reporting: The EPA permit gives PDC 30 days to
report any problems it may find, even breakdowns in the landfill. That is an
inordinate length oftime.
Section
IX of Permit B-24R, titled "REPORTING AND NOTIFICATION
REQUIREMENTS," provides detailed reporting and notification requirements
of the regulated
systems at the PDC No. I facility. (Permit B-24R
(Doc. 133), pgs. IX-I to IX-9). These reporting
and notification requirements range from immediate notification to 180-day notification
depending on the issue. The inclusion
of specified reporting and notification intervals does not
support a finding that Permit B-24R violates the Act or Board regulations.
6 http://www.epa.gov/tri/triprograrn/whatis.htm
30
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
V.
Brief Point 13
Brief Point 13:
The public hearing held by the county board two years ago on
PDC's landfill was the longest (6 days and evenings) and most attended in
county history. The county board voted
12 to 6 not to issue a new operating
permit.
Previously a Circuit Court ruling in Chicago held that any increase in
original landfill
capacity, up, down, or sideways, is expansion.
As previously stated, PDC has not requested an expansion with this permit renewal and the
Agency has not granted an expansion in Permit B-24R. The Agency is charged with the issuance
of RCRA Part B permits in Illinois. The siting hearing does not support a finding that issuance
of Permit B-24R constitutes a violation ofthe Act or Board regulations.
CONCLUSION
Based on the foregoing, it is clear that Mr. Edwards has not "prove[n] that the permit as
issued will violate the Act or Board regulations." American Bottom Conservancy. PCB 06-171,
2007
WL 325720 at *4;
see also
Joliet Sand
&
Gravel, 163 Il1.App.3d at 833,516 N.E.2d at 958,
and Prairie Rivers Network, 335 Il1.App.3d at 401,
781 N.E.2d at 380, cited by the Board in its
March
6, 2008 Order. As above, the undisputed expert testimony in this case (which is the only
testimony offered at the public hearing), provides
(l) "that the permit as issued will not violate
the Illinois Environmental Protection Act or Board regulations," and (2) "that Mr. Edwards'
amended petition provides no reasonable basis for finding that the permit as issued would violate
the Illinois Environmental Protection Act or Board regulations." (Transcript, pg. 52, lines 10-12,
and pg. 53, lines 14-18). In any case, the Amended Petition itself is so fundamentally flawed that
it should be denied for the reasons stated in Section
1,
supra,
and in the Motion to Dismiss,
without even consideration
ofthe substantive discussion in Section 2,
supra.
31
TIllS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
WHEREFORE. for all the foregoing reasons, PDC respectfully requests that the Board
deny the relief sought in the Amended Petition filed by
Mr. Edwards, and award PDC such other
and further reliefas is deemed appropriate under the circumstances.
Respectfully submitted,
PEORIA DISPOSAL COMPANY,
Respondent
Dated:
May
19,2008
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
908-0325
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
32
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19,2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
TOM EDWARDSIRIVER RESCUE,
Petitioner,
v.
PEORIA DISPOSAL COMPANY and
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
PCB No. 2008-042
(Permit Appeal - Third Party)
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that (1) the Post-Hearing Brief of Respondent Peoria Disposal
Company was filed electronically with the Clerk
of the Illinois Pollution Control Board on May
19,2008, and (2) the Post-Hearing
Brief of Respondent Peoria Disposal Company was served on
the Petitioner and on Respondent The Illinois Environmental Protection Agency by sending
copies
of same via U.S. Mail, First Class, postage prepaid, from Peoria, Illinois, before 5:00 p.m.
on the 19th day
of May, 2008:
Mr. Tom Edwards
River Rescue
902
W. Moss Avenue
Peoria, Illinois 61606
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
Michelle Ryan, Esq.
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, Illinois 61794-9276
I~M~
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
THIS DOCUMENT WAS FILED ELECTRONICALLY WITH THE CLERK ON MAY 19, 2008.
Electronic Filing - Received, Clerk's Office, May 19, 2008