Cnty. of Will & Will Cnty. Land United Statese Dep't v. Ill. Pollution Control Bd.
| Decision Date | 12 September 2017 |
| Docket Number | Appeal No. 3-15-0637,Appeal No. 3-16-0058 |
| Parties | COUNTY OF WILL and WILL COUNTY LAND USE DEPARTMENT, Petitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Petition for Review of Order of the Illinois Pollution Control Board dated August 6, 2015.
Appeal from a Decision of the Illinois Pollution Control Board.
JUSTICE SCHMIDT delivered the judgment of the court.
¶ 1 Held: The Illinois Pollution Control Board's determination that groundwater monitoring regulations were unnecessary to protect groundwater from clean construction and demolition debris and uncontaminated soil fill operations was not arbitrary, capricious, or unreasonable.
¶ 2 In 2011, the Illinois Environmental Protection Agency (IEPA) proposed regulations to eliminate groundwater contamination purportedly caused by clean construction and demolition debris (CCDD) and uncontaminated soil fill (USF) operations. See Ill. Admin. Code § 1100. The proposed regulations included "front-end" material certification and testing mandates, as well as "back-end" groundwater monitoring requirements. The Illinois Pollution Control Board (Board) amended and approved the IEPA's proposed front-end regulations; these regulations set maximum allowable concentrations (MACs) of certain substances in acceptable fill materials.
¶ 3 However, the Board rejected "Subpart G," the IEPA's back-end groundwater monitoring proposal. On August 6, 2015, after two docket proceedings, four hearings, and dozens of pre- and post-hearing public comments, the Board issued its final order rejecting Subpart G. Based upon the record, the Board concluded that back-end groundwater monitoring regulations were unnecessary; the newly-promulgated front-end screening regulations would adequately protect groundwater by regulating materials that fill operations could accept and deposit. The People of the State of Illinois, Will County, and Will County's Land Use Department object to the Board's decision; they seek review pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and the Illinois Environmental Protection Act (Act) (415 ILCS 5/29(a), 5/41(a) (West 2014)). For the reasons set forth below, we confirm the Board's determination.
¶ 5 CCDD and USF are the remnants of construction projects. Road, building, and landscaping construction projects, both public and private, generate soil, asphalt, bricks, concrete, and other construction materials that are eventually discarded. Fill operations are businesses that take these materials and deposit them in large quarries; the materials decompose over time. Fill operations do not add chemicals or otherwise alter the CCDD and USF materials received—they exist in the quarries just as they existed elsewhere in buildings, roads, or soil. Operators fill water into the quarries. If the deposited CCDD and USF materials contain certain contaminants or certain amounts of contaminants, these contaminants may "leach" into the water pumped through the quarries.
¶ 6 The General Assembly first recognized CCDD in 1997; it amended the Act to distinguish "general" and "clean" construction and demolition debris materials (Public Act 90-475 (eff. Aug. 17, 1997)). The amendment defined clean materials (CCDD) as "uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil generated from construction or demolition activities." 415 ILCS 5/3.78a (West 2000); see also 415 ILCS 5/3.160(b) (West 2014). Public Act 90-475 also declared that CCDD was not considered "waste" if used as fill material and deposited below grade either under a road or structure or in a manner that supported vegetation. Id.
¶ 7 Months later, Public Act 90-344 (eff. Jan. 1, 1998) amended the Act to require CCDD fill site operators, haulers, and generators to maintain dated records describing the volumes and sources of the materials received, hauled, or generated. See 415 ILCS 5/21(w) (West 2000). Public Act 90-344 meant to deter fill site operators from accepting waste materials instead of clean fill.
¶ 8 In 2005, Public Act 94-272 (eff. July 19, 2005)) amended the Act by requiring CCDD and USF site operators to obtain permits from the IEPA; the amendment also instructed the IEPA to propose, and the Board to promulgate, regulations concerning acceptable standards and uses for CCDD and USF at fill sites. See 415 ILCS 5/22.51(c) (West 2006). In 2006, the Board promulgated formal CCDD disposal regulations at Part 1100 of the Administrative Code (35 Ill. Admin. Code § 1100). Under these regulations, fill site operators were required, for the first time, to visually inspect and test CCDD materials with photo ionization detectors (PIDs) or similar devices to ensure accepted materials were "clean" or "uncontaminated."
¶ 9 In 2010, the General Assembly passed Public Act 96-1416 (eff. July 30, 2010), which defined "uncontaminated soil fill" as soil from construction projects that does not containcontaminants harmful to human health or the environment. 415 ILCS 5/3.160(c) (West 2014). The Board subsequently set MACs for certain substances commonly found in USF. 35 Ill. Admin. Code § 1100.605. Public Act 96-1416 also directed the IEPA to propose, and the Board to promulgate, regulations that protect groundwater from CCDD and USF fill operations. 415 ILCS 5/22.51(f)(1), 22.51a(d)(1) (West 2010).
¶ 11 In 2011, the IEPA initiated the rulemaking proceedings at issue in accordance with Public Act 96-1416. The Act authorizes the IEPA to propose regulations (415 ILCS 5/4 (West 2014)) but delegates final rulemaking authority to the Board (415 ILCS 5/5(c), 5/28 (West 2014)). The Board operates as a "science court." Each of the Board's five members is appointed by the governor, with the advice and consent of the senate, and must be qualified with verifiable experience in pollution control. 415 ILCS 5/5(a) (West 2014).
¶ 12 The IEPA's proposals included front-end regulations that increased CCDD and USF fill site operators' certification and screening requirements to ensure accepted fill materials were "clean" or "uncontaminated." The IEPA also proposed "Subpart G," a back-end groundwater monitoring requirement. Subpart G required site operators to build monitoring wells and annually monitor groundwater for contamination. Additionally, Subpart G required site operators to either show that discovered contamination was not related to fill operations or remediate any contamination exceeding the Board's MACs for potable resource groundwater (35 Ill. Admin. Code § 620.410).
¶ 13 As proposed, Subpart G was self-implementing; private site operators were not required to obtain an additional permit to monitor or report monitoring plans to the IEPA. Subpart G also proposed lifetime application, which included fill sites' operation, closure, post-closuremaintenance, and corrective action. However, sites that closed or entered post-closure maintenance within one year of Subpart G's effective date were excused from compliance. Sites engaged in dewatering were also excused from Subpart G's monitoring requirements until dewatering ended. However, dewatering is a temporary process—without water pumping into the quarries, the deposited materials will fill the quarries more quickly due to slower decomposition. Therefore, sites could not maintain dewatering permanently to avoid complying with Subpart G.
¶ 15 On August 14, 2011, the Board, as it must under the Act (415 ILCS 5/27(b)(1) (West 2014)), asked the Department of Commerce and Economic Opportunity (DCEO) to study the proposed regulations' economic impact. The DCEO declined the Board's request. Nonetheless, pursuant to the Administrative Procedure Act (5 ILCS 100/5 et seq. (West 2014)), the Board held two hearings on the IEPA's proposed regulations prior to first notice; the first on September 26, 2011, the second on October 25 and 26, 2011.
¶ 16 In addition to hearing participants' testimony during these initial hearings, the Board invited comment on the DCEO's decision not to perform an economic impact study—generally, all parties expressed disappointment with the DCEO's decision. Despite the lack of an economic impact study, Subpart G's proponents asserted that groundwater monitoring was economically reasonable.
¶ 17 Will County and its Land Use Department advocated for Subpart G. By 2011, the IEPA had issued permits to 60 CCDD fill operations statewide. Although these sites were spread among 18 counties, 9 of the 60 CCDD sites operated within Will County and sat near major waterways such as the Des Plaines and Du Page Rivers. According to Will County, 71% of itsresidents obtain their potable water supply "exclusively" from groundwater running through shallow bedrock aquifers, which are susceptible to contamination from CCDD and USF fill operations.
¶ 18 Both Will County and the IEPA argued that fill site operators have historically ignored regulations. Although the IEPA admitted at the September 26 hearing that operators' compliance with the proposed front-end regulations would negate the need for groundwater monitoring, both the IEPA and Will County assumed that operators—either by mistake or intent—would not regularly comply with the front-end regulations. Therefore, Subpart G offered a necessary check on operators by providing a means of exposing their failures to comply with the front-end regulations.
¶ 19 Advocates for Subpart G also suggested that materials deposited in fill sites' quarries before 2011 present "a clear and present danger" to groundwater. CCDD and USF fill site...
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