Cnty. of Will v. Pollution Control Bd.
| Decision Date | 20 June 2019 |
| Docket Number | 122813,Docket Nos. 122798 |
| Citation | 434 Ill.Dec. 165,135 N.E.3d 49,2019 IL 122798 |
| Parties | The COUNTY OF WILL et al., Appellants, v. The POLLUTION CONTROL BOARD, Appellee. |
| Court | Illinois Supreme Court |
¶ 1 In 2010, the Illinois General Assembly directed the Pollution Control Board (Board) to adopt "rules for the use of clean construction or demolition debris [ (CCDD) ] and uncontaminated soil [ (US) ] as fill material at clean construction or demolition debris fill operations." Pub. Act 96-1416 (eff. July 30, 2010). The legislature added that the rules must include "standards and procedures necessary to protect groundwater" and provided an inexhaustive list of 12 ways to do so that the Board may consider. Id. One of those ways was groundwater monitoring. Id. The rules ultimately promulgated by the Board required stronger "front-end" testing and certification requirements for CCDD and US but not a "back-end" groundwater monitoring requirement.
¶ 2 The sole issue in this appeal is whether the Board's decision was arbitrary and capricious. The appellate court concluded that it was not and affirmed the Board's decision. 2017 IL App (3d) 150637-U, 2017 WL 4021816. For the reasons that follow, we affirm the appellate court's judgment.
¶ 6 The following year, the General Assembly recognized that there were effectively no rules to prevent CCDD fill site operators from accepting GCDD and commingling general and clean materials. The legislature consequently amended the Act to prohibit the generation, transportation, or recycling of CCDD without documentation of its weight or volume, its origin, its hauler, and its destination. 415 ILCS 5/21(w) (West 2000). The legislature did not require operators to screen loads coming into their sites.
¶ 7 In 2005, the General Assembly closed that gap. The legislature amended the Act to require CCDD fill site operators to obtain permits from Illinois's Environmental Protection Agency (Agency). 415 ILCS 5/22.51(b) (West 2006). That amendment also instructed the Agency to propose and the Board to adopt regulations for the use of CCDD as fill material in current and former quarries, mines, and other excavations. Id. § 22.51(c). The legislature wanted those regulations to include "standards for [CCDD] fill operations and the submission and review of permits." Id. The Board soon promulgated such regulations as part 1100 of title 35 of the Illinois Administrative Code. See 35 Ill. Adm. Code 1100 (2012). Under part 1100, operators were required to screen loads and reject material that did not meet the statutory definition of CCDD.
¶ 8 In 2010, the General Assembly revisited the subject of CCDD. The legislature amended the Act to define uncontaminated soil (US) as soil from construction projects that does not contain contaminants harmful to human health or the environment. 415 ILCS 5/3.160(c)(1) (West 2010). Like CCDD, US is not considered "waste" to the extent allowed under federal law and regulations. Id. The amendment required fill site operators to obtain either a certification from the generator that the soil was "never * * * used for commercial or industrial purposes and is presumed to be uncontaminated" or a certification from a licensed engineer that the soil is uncontaminated. Id. § 22.51(f)(2)(B). The amendment also required operators to confirm that the CCDD or US was not removed from a site "as part of a cleanup or removal of contaminants." Id. § 22.51(f)(2)(C).
¶ 9 Additionally, the legislature for the first time voiced a concern about protecting groundwater and added sections 22.51(f)(1) and 22.51a(d)(1) to the Act. Section 22.51(f)(1) provided:
Id. § 22.51(f)(1).
Section 22.51a(d)(1) provided:
Id. § 22.51a(d)(1).
¶ 10 The Agency's Proposal
¶ 11 The Agency went to work. In February 2011, the Agency published an overview of draft regulations and solicited input on them from "a diverse set of stakeholder groups." According to the Agency, it received 88 pages of comments from 24 stakeholder groups in the public and private sector. On April 29, 2011, the Agency published an overview of revised draft regulations and requested further feedback from stakeholders. Three months later, on July 29, 2011, the Agency filed its proposed regulations with the Board. The proposal contained eight subparts, labeled A through G. Subpart A contained general provisions, including revised and new definitions for terms used in part 1100. Subpart B concerned standards for CCDD at fill operations. Subpart C concerned permit application information for CCDD fill operations. Subpart D concerned procedural requirements for permitting CCDD fill operations. Subpart E concerned US fill operations. Subpart F concerned standards for US at fill operations. And subpart G concerned groundwater monitoring.
¶ 12 Subpart G required owners and operators of permitted CCDD and US fill sites to install groundwater monitoring systems—essentially, wells—and to collect water samples annually. Those samples could not exceed the groundwater quality standards listed in part 1100. See 35 Ill. Adm. Code 620.410 (2012). In the event of an exceedance, an owner or operator would be required to notify the Agency, to prepare a remediation plan, and to implement and continue that plan until the fill site had no violations for three years. Subpart G applied for the "active life" of a fill site, but exempted shuttered sites and sites undergoing "dewatering," a process for removing excess water.
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