PETITION for review of order of Pollution Control Board.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
After extended hearings, briefs and argument, the Illinois Pollution Control Board found two landfill companies (Elgin and Tri-County) who operate landfills northeast of the village of South Elgin, guilty of violating section 12 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1012) and ordered them (1) to cease and desist from causing water pollution and the threat of water pollution at their respective sites; (2) to take immediate steps to terminate leachate and pollutional discharge from their sites, to submit programs for abatement within 90 days and to effectively implement such programs within 180 days; (3) each to post a bond of $100,000 guaranteeing the submission of such a program, the bond also to provide for a forfeiture of $20,000 for any failure effectively to abate the discharge within 180 days; and (4) each to pay a penalty of $10,000 for said violations.
Elgin and Tri-County appeal and contend, in substance, (1) that the Board exceeded its statutory power in declaring private waters to be "waters of the State"; (2) that the Environmental Protection Agency and the Board are both estopped from asserting or holding that actions taken by the landfill operators violate the Act; (3) that there is no substantial evidence to support the Board's finding that there is a threat of water pollution in the operation of the landfills; and (4) that the Board erred in levying fines against them. We reverse only so much of the Board's order as purports to impose present and future penalties but affirm the Board's order in all other respects.
The landsites in question lie to the northeast of the village of South Elgin. Site A (as it was referred to in the proceedings) is owned by the Van der Molens, d/b/a Elgin Landfill Company (hereinafter referred to as Elgin). It consisted of 20 acres and had been in operation as a solid waste disposal landfill since 1961. Site B is south and immediately contiguous to Site A. Tri-County Landfill has been operating a solid waste disposal landfill on it since April, 1968. Site C consists of 235 acres of land located to the west of the existing two landfills A and B, and is separated from them by the Chicago, Aurora and Elgin Railroad right-of-way. The village of South Elgin lies immediately northwest of Site C. West of the village lies the Fox River.
Site C is owned by Arc Disposal Company, Garden City Disposal Company and Tri-County. The owners had intended to use Site C for landfill purposes when Site B was completed. However, in 1972, they were denied permission by the Environmental Protection Agency to use it because such use would be in violation of the County zoning laws, although the permit in 1970 had allowed Site C to be used for landfill purposes subject to zoning laws. Site C contains two bodies of water designated Pond II and Pond III (which were part of a lake before a dam on the stream leading to the Fox River broke) and a stream.
Beneath the existing and proposed landfill sites lie two additional bodies of water, an upper aquifer found in the upper 15-30 feet of soil and a lower aquifer found beneath but apparently separated from the upper aquifer by a layer of clay. The water in the upper aquifer moved through Sites A, B and C in a southwesterly direction towards the Fox River. The source of a portion of the water in the ponds on Site C is ground water from the upper aquifer which percolates through the soil into the ponds. The second, deeper and larger aquifer also flows in a westerly or southwesterly direction. It serves as a source of South Elgin's water supply. The South Elgin well is located about 500 feet west of Site C.
The initial complaint was filed against the petitioner Tri-County Landfill Company and its manager alleging certain pollution violations. Subsequently, Elgin and certain other parties subsequently dismissed were joined as respondents. The village of South Elgin, the Environmental Protection Agency and certain citizens were granted leave to intervene as party complainants.
Hearings on the matter commenced on June 23, 1971, and concluded on February 7, 1973. Final arguments were made directly to the entire Board. The Board found that (1) the two disposal companies (owners of Site C) who had been joined had committed no violation and they were dismissed; (2) there was no violation of any regulations or statutes with regard to air pollution; (3) while the evidence demonstrated the probability that the Rules and Regulations with respect to Refuse Disposal Sites and Facilities had been violated on an episodal basis, the evidence was not sufficiently impressive to establish violations with the exception of Rule 402(a) which requires that reasonable assurance be taken so that leachate from the landfill does not contaminate the ground waters or streams in the area; (4) Elgin and Tri-County Landfill were guilty of causing water pollution, in violation of section 12(a) of the Act, and of causing a water pollution hazard, in violation of section 12(d) of the Act. The Board did not find that the lower aquifer was presently polluted. It did find that Ponds II and III and the stream flowing from them had been polluted by the landfill operations. It, however, found the threat of water pollution inherent in the present operations to be more significant. As stated by the Board:
"There was considerable testimony and dispute as to whether the upper and lower aquifers were separated by an impervious clay layer. Testimony both pro and con in this respect was particularly speculative. However, there is no question that the lower aquifer runs beneath Sites A, B and C and provides the water supply for the City of South Elgin. There is also no question that portions of the upper aquifer, the ponds on Site C and the stream connecting and running therefrom to the Fox River have been polluted. We must, therefore, conclude that a substantial threat of water pollution to the lower aquifer exists as a consequence of the pollutional discharges from Respondents' properties * * *.
The evidence establishes that if, in fact, drinking water becomes characterized by the TDS counts that are present in the portions of the upper aquifer, this could have been a serious and disastrous effect on the citizens of South Elgin. We will not tolerate this danger, notwithstanding the fact that the time may be distant when such pollution would, in fact, take place."
Accordingly, the Van der Molens and Tri-County were ordered to cease and desist from causing water pollution and the threat of water pollution, to take immediate steps to terminate leachate and pollutional discharge from their sites; to submit a program for abatement within 90 days and to effectively implement the program within 180 days; to each post a bond of $100,000 to guarantee submission of a program, the bond also providing for a forfeiture of $20,000 for any failure to effectively abate the discharge within 180 days and to pay a penalty of $10,000 each.
The parties appealed separately. However, we have consolidated the appeals for purpose of this opinion, although not all issues were raised by both parties.
The first issue before this court is whether the Board had jurisdiction over the waters in question. The Board found the petitioner guilty of causing water pollution and depositing contaminants so as to create a water pollution hazard; but Petitioner Tri-County contends that such pollution even if it exists is not a violation of the Environmental Protection Act. Water pollution is defined by section 3 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1003) as:
"* * * such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State, or such discharge of any contaminant into any waters of the State, as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life."
Tri-County contends that waters on private land are not "waters of the State." It argues that before the waters can be waters of the State, they must be ...