PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The City of Pekin has filed this administrative review action for review of an order entered by the Illinois Pollution Control Board in an enforcement proceeding involving the Pekin landfill site. This proceeding originated with a complaint filed by the Environmental Protection Agency charging that the city operated a solid waste management site without a permit as required by section 21(e) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1021(e)) and by Rule 202(b)(1) of the Board's Solid Waste Rules and Regulations.
In its complaint the agency requested that the city be ordered to cease and desist the violations charged, that the city be ordered to discontinue refuse disposal activities at the site unless a permit is obtained, and that the city be assessed a penalty of $10,000 for past violations plus $1,000 per day for continuing violations.
In a stipulation of facts, the city admitted that it had been operating a 25-acre solid waste management site since 1965, that approximately eight acres were in use at the time the complaint was filed, and that two applications for a permit had been denied prior to the hearing. It was also stipulated that the city had stopped dumping refuse at the site about 10 days before the hearing. The agency placed in evidence its request for an admission that the city had operated the site without a permit. The city did not answer the request, and under Rule 314(c) of the Board's Procedural Rules, the facts asserted in the request were admitted unless denied.
At the hearing, witnesses for the city testified that the only complaint that had ever been received relating to operation of the site concerned a one-time problem with windblown litter along the highway. The nearest water, other than surface water ponds at the site, was an intermittent stream one-quarter to one-third miles from the site that only flows during heavy rains. The site is located in a rural area, one-quarter to one-half mile from the nearest residence and occupies a deep gully that formerly was a gravel pit. The soil available at the site for use as cover is sandy loam.
Much of the testimony of the city's witnesses concerned the agency's cover requirements for a closed solid waste management site. The city engineer testified that 132,000 cubic yards of cover material would be required to bring the entire 25-acre site up to grade with a two-foot cover of impervious material, such as clay soil. This estimate was based on a field survey, and took into account the present topography of the site plus the need for natural drainage. This same witness estimated that the total cost of closure would be $792,000 (132,000 cubic yards at $3.90 per cubic yard for material and $2.10 per cubic yard for grading, leveling and seeding). On cross-examination, the witness admitted receiving another offer for cover material at $3 per cubic yard, and also stated that hopefully the entire 25 acres would not require final cover, but only the part last in use. However, he said that the part already covered was not in conformity with present regulations.
The mayor of the city testified that the financial impact of a $792,000 cost for closing would require a severe curtailment of municipal services or a tax increase of 50 cents per $100 valuation. The city's attorney testified about a meeting with agency representatives at which time he was informed that the entire 25 acres must be brought up to grade and then a final cover of two feet of impermeable clay must be applied.
In rebuttal, the regional supervisor of land pollution control for the agency, William C. Childs, testified that the agency requires six inches of daily cover. Any area that is not to be used within 60 days must then have an additional six inches of cover to provide intermediate cover of one foot. An additional one foot is required to have a final cover of two feet.
The agency witness also stated that no soil tests or tests of the water table have ever been made to determine what if anything is being polluted by the Pekin Landfill. Leachate (a highly polluted water) has been observed on the site but none was ever observed leaving the site. He also said that the city was denied a permit because of the potential for pollution. He testified that neither the Act nor agency regulations require submission of a closure plan, but that it is agency policy to request a closure plan documented with evidence of subsoil conditions, current grade, soil classification of site, provisions for monitoring, a map showing present cover, and the proposed grade showing drainage patterns and leachate collection.
During closing arguments, the Assistant Attorney General representing the agency made an oral motion to amend the complaint to request that the city be ordered to submit a closure plan, citing Procedural Rule 328 which permits amendment of the pleadings to conform to the evidence. The city objected, and the hearing officer ruled that the motion to amend was not timely but that the board would decide whether an amendment to the complaint was necessary to permit a closure order at this time. Procedural Rule 308 provides, in part:
"(f) The Hearing Officer shall rule upon all motions, except that he shall have no authority to dismiss or decide a proceeding on the merits, or for failure to state a claim, or for want of jurisdiction, or to strike any claim or defense for insufficiency or want of proof. The Hearing Officer shall refer any such motion to the Board * * *.
(h) Rulings of the Hearing Officer may be reviewed by the Board after conclusion of the hearing, but will be set aside only to avoid material prejudice to the rights of a litigant."
After the hearing, the transcript was sent to the board along with the hearing officer's statement that all witnesses appeared very credible and that credibility was not at issue.
The opinion and order of the board included findings that the city operated its solid waste management site without the required permit and that the city therefore committed the violations charged. The board stated that the ...