John Sexton Contractors Co. v. Illinois Pollution Control Bd.

• Decision Date: 29 June 1990
• Docket Number: No. 1-89-1393,1-89-1393
• Citation: 558 N.E.2d 1222,146 Ill.Dec. 888,201 Ill.App.3d 415
• Parties: , 146 Ill.Dec. 888 JOHN SEXTON CONTRACTORS COMPANY, Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and the Illinois Environmental Protection Agency, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1222

558 N.E.2d 1222

201 Ill.App.3d 415, 146 Ill.Dec. 888

JOHN SEXTON CONTRACTORS COMPANY, Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and the Illinois Environmental Protection Agency, Respondents-Appellees.

No. 1-89-1393.

Appellate Court of Illinois First District, Fourth Division.

June 29, 1990.

Mohan, Alewelt, Prillaman & Adami, Springfield (Fred C. Prillaman, Lisa A. Manion, of counsel), for petitioner-appellant.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Michelle D. Jordan, Matthew J. Dunn, Joseph J. Annunzio, Arleen C. Anderson, Asst. Attys. Gen., of counsel), for respondents-appellees.

Justice JIGANTI delivered the opinion of the court:

The petitioner, John Sexton Contractors Company (Sexton), appeals from an order of the respondent, The Pollution Control Board (Board), which affirmed the imposition of special conditions by the Environmental Protection Agency (Agency) on Sexton's closure/post-closure care plan for its landfill in Lansing, Illinois. This appeal is brought pursuant to section 41 of the Environmental Protection Act (Act) (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1041), and Supreme Court Rule 335 (107 Ill.2d R. 335), which provide that review of a Board decision shall be afforded directly in the appellate court. Sexton contends that the Board erred in concluding that the closure/post-closure care plan constituted a permit application to which the Agency was authorized to attach conditions. Sexton further contends that the Board's decision to affirm the four special conditions which are contested in this appeal was against the manifest weight of the evidence. Also, Sexton maintains that two of the special conditions were premised upon draft guidelines which had not been promulgated or adopted in accordance with Board regulations.

Sexton operates a solid waste landfill on 60 acres of land near Lansing, Illinois. On June 5, 1982, the Agency issued a permit to Sexton for the development and operation of a 20-acre solid waste disposal site designed to accept commercial, industrial and residential solid wastes. On March 18, 1983, the Agency issued a supplemental permit allowing Sexton to operate the landfill on the adjacent 40 acres of land. In 1975 and 1976, Sexton was issued supplemental permits allowing for the disposal of sludge and liquid wastes containing heavy metals, polyvinyl acetate, methylene chloride, tricresyl phosphate, triethanolamine and waste-cutting oils (hereinafter referred to as "special wastes"). Throughout the course of this litigation, Sexton has denied that these special wastes were ever accepted into the landfill.

In 1983, the Environmental Protection Act was amended to add section 21.1, which requires all owners and operators of sanitary landfills to post a bond or other financial document with the Agency to assure that sufficient funds will be available upon closure of the landfill to properly close and monitor it for a specified length of time. (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1021.1.) Section 21.1 authorizes the Board to adopt regulations to promote the purposes of this section and authorizes the Agency to "approve or disapprove any performance bond or other security posted" and to "establish such procedures as it may deem necessary for the purpose of implementing and executing its responsibilities under this Section." (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1021.1(b), (e), (f).) The Agency's disapproval of a performance bond or other security may be contested in a permit denial appeal. Ill.Rev.Stat.1987, ch. 111 1/2, par. 1021.1(e).

In 1985, the Board adopted a final order implementing the requirements of section 21.1 of the Act in a proceeding entitled In The Matter Of: Financial Assurance For Closure And Post-Closure Care Of Waste Disposal Sites (Economic Impact Of Temporary Regulations And Adoption Of Final Regulations) (Board Rule 84-22C (November 21, 1985)), and issued regulations (35 Ill.Adm.Code §§ 807.501 to 807.666 (1986 Supp.)). Essentially, the regulations require a landfill operator to prepare a closure/post-closure care plan which would serve as a basis for cost estimates to implement the financial assurance requirements of section 21.1 of the Act. Section 807.501, which states the purpose, scope and applicability of the Board regulations, provides that the closure/post-closure care plans "will become permit conditions" and will "form the basis of the cost estimates and financial assurance required * * * for disposal sites." (35 Ill.Adm.Code § 807.501(b), (c) (1986 Supp.).) Section 807.502 states the closure performance standard, providing that: "an operator of a waste management site shall close the site in a manner which: (a) [m]inimizes the need for further maintenance; and (b) [c]ontrols, minimizes or eliminates post-closure release of waste, waste constituents, leachate, contaminated rainfall, or waste decomposition products to the groundwater or surface waters or to the atmosphere to the extent necessary to prevent threats to human health or the environment." (35 Ill.Adm.Code § 807.502 (1986 Supp.).) Section 807.503(a) and (d) state that "[a]n operator of a waste management site shall have prepared a written closure plan which shall be a condition of the site permit" and which "shall be included in the permit application." (35 Ill.Adm.Code § 807.503(a), (d) (1986 Supp.).) Section 807.503 also provides that the closure/post-closure care plan "shall be a condition of the site permit." (35 Ill.Adm.Code § 807.523 (1986 Supp.).) Section 807.504 defines the submission of any modification of a closure plan as a "permit application." 35 Ill.Adm.Code § 807.504 (1986 Supp.).

In accordance with section 21.1 of the Act and the Board regulations, Sexton submitted a revised closure/post-closure (CPC) care plan to the Agency on July 13, 1988. On July 26, 1988, the Agency approved Sexton's CPC care plan, but imposed 34 special conditions on the plan. Sexton appealed to the Board from special conditions 4, 6, 17, 19(b) and 20. Special condition 20 is not a subject of this appeal. Special condition 4 concerned gas control at the landfill following its closure. Sexton's CPC care plan stated that gas control would be effected through a passive gas-flaring system and outlined the number, locations and types of passive gas flares that it had installed and intended to install at the site. The plan further stated that "[u]pon closure, the gas may be used for electricity generation." The Agency's special condition 4 stated that:

"The information developed for Special Condition No. 3 ¹ shall be used to determine a closure and post-closure time frame for 'Gas Control' activities. This gas control facility should be considered separate from the landfill activity, and the subject of a partial closure plan. A revised closure/post-closure care plan for the landfill with a separate closure/post closure care plan for gas control shall be sent to this Agency within ninety (90) days on this permit."

Special condition 6 involved leachate management. Leachate is the liquid which forms and collects at the base of the landfill. Sexton's CPC care plan indicated that its passive gas control system may be utilized in the future for leachate extraction and further indicated that it would monitor the site for leachate "weeps," "seeps" and "pop outs" through the final cover. It would also monitor the groundwater for contamination. Special condition 6 provided as follows:

"The applicant [Sexton] shall propose a leachate management program for this site that will define the amount and type of leachate generated, how the leachate elevation will be stabilized, when and how the leachate will be attenuated."

Special condition 17 concerned a groundwater-monitoring system. At the time Sexton submitted its CPC care plan, it had in place a comprehensive groundwater-monitoring program which the Agency approved in 1984. Special condition 17 provided as follows:

"The groundwater monitoring program for this site is subject to the following modifications:

a. The existing monitor wells * * * shall be sampled and tested for initial water quality parameters * * * for four (4) quarters.

b. Propose a revised groundwater monitoring program, based on draft Groundwater Monitoring Network design guidelines. The proposal shall include at least one (1) deep upgradient monitor well capable of determining groundwater quality flowing onto and unaffected by the landfill, and new downgradient wells that will help assess the current contribution of the existing landfill on groundwater quality and determine if a release to groundwater is occurring. This shall be by a supplemental permit request within 60 days of the date of this permit.

c. Determine the gradients and groundwater flow directions through the potential leachate migration pathways and identify the potentially impacted water resources (i.e. surface water groundwater aquifers). This can be done by determining the piezometric and hydraulic characteristics of the potential leachate migration pathways."

Special condition 19(b) established the criteria to be used in determining whether the groundwater near the landfill is being impacted by the facility. Sexton's CPC care plan proposed that groundwater quality would be measured against groundwater parameters reported from previous quarterly reports. Where "distinctive differences" occur, a report would be prepared and further analytical evaluations undertaken to establish the nature of the data variability. Special condition 19(b) stated that:

"If any parameter exceeds, over twice the background quality, groundwater contamination shall be suspected and within 30 days of the report due date for the quarter another sample shall be obtained from the suspect well and analyzed for all background parameters."

A Board hearing was held on November 3, 1988, at which Sexton presented three witnesses: James D. Schoenhard, the Agency permit reviewer who...