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02/03/89 Browning-Ferris Industries v. the Pollution Control

February 3, 1989

BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 616, 179 Ill. App. 3d 598, 128 Ill. Dec. 434 1989.IL.132

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Petitioner, Browning-Ferris Industries of Illinois, Inc. , appeals from an order of respondent, the Pollution Control Board (Board), which affirmed the imposition of modifications by the Environmental Protection Agency (Agency) on BFI's closure/post-closure plan for a section of a landfill it owns and operates. The appeal is brought pursuant to section 41 of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1041), which provides that review of Board decisions shall be afforded directly in the appellate court. BFI claims that the Board erred in its review of the Agency action by failing to require the Agency to carry a proper burden of proof and that the affirmance of the modifications by the Board was contrary to the manifest weight of the evidence. We disagree and affirm.

BFI, which is in the business of solid waste management and disposal, received a permit from the Agency in February 1975 to develop a solid waste disposal site in Davis Junction, Ogle County, to handle general solid wastes. Groundwater existed beneath the site in various sand layers. According to BFI's application, in order to prevent both infiltration of the fill area by this groundwater and the escape from the fill area of the liquid, known as leachate, which forms and collects at the base of the fill, an impervious cutoff wall was to be constructed to separate the fill from the sand layers. Leachate was to be collected and hauled away for proper treatment.

In October 1976 BFI applied for an amended development permit for the Davis Junction site. The application indicated that the cutoff wall details had been modified to provide a greater degree of protection against movement of liquid into or out of the fill site and proposed that the leachate, rather than being removed, should be managed through containment and natural soil attenuation (leachate renovation as the liquid passes through soil). Containment time, or the time required for leachate to move from the fill to the groundwater below, was calculated by BFI to be in the range of 164 years. The Agency's calculations, in sharp contrast to those of BFI, showed containment time to be only 55 years. BFI's estimate of containment time was dependent upon establishment of a specific gradient and maintenance of the liquid at an elevation no higher than 726 feet. If the leachate level went higher the gradient would increase and containment time would decrease. Maintaining the liquid at a 726-foot elevation meant that the leachate could be allowed to accumulate to a depth of no more than 14 feet measured from the floor of the landfill. Finally, BFI proposed modifications of the final cover of the fill in order to reduce the potential for percolation of surface water into the completed site. Provision was made for monitoring the leachate level and removal of the liquid if it rose to a critical level. A supplemental permit was issued on October 28, 1976.

The following December BFI began operating the Davis Junction site, and the principal waste materials accepted were general municipal refuse. However, pursuant to supplemental permits, BFI also accepted small amounts of hazardous wastes and liquid organic solvent wastes.

In September 1982 BFI was granted another supplemental permit which allowed the removal of 5,000 gallons of leachate per week for disposal on the dry fill at the site. BFI's application for this permit reaffirmed that the leachate was to be maintained at the mandated elevation of 726 feet, or 14-foot depth, and that any excess would be removed.

Because hazardous wastes were accepted, the Davis Junction site was registered as an "interim status" facility pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq. (1976)), and the appropriate Board regulations (35 Ill. Adm. Code 725.101 et seq. (effective May 17, 1982)). In August 1983 BFI was asked to submit an application to allow it to continue Davis Junction as a hazardous waste disposal facility and thus terminate its "interim status." However, the landfill had stopped accepting hazardous wastes in January 1983, and in January 1984 BFI filed with the Agency a closure/post-closure plan for the site.

In July the Agency approved BFI's plan but modified it by adding several mandatory requirements. BFI objected to certain of the modifications and appealed to the Board. Following a hearing on February 3, 1988, at which both BFI and the Agency presented evidence, the Board issued an opinion and order affirming the Agency's modifications to BFI's closure/post-closure plan. BFI timely filed this appeal.

BFI asserts initially that the Board erred in concluding that the burden of proof at Board hearings is solely on the petitioner. In its opinion the Board discussed, as a preliminary issue, the burden of proof element of permit appeal proceedings and emphatically, and correctly, found that the burden was on BFI. (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1040(a); Environmental Protection Agency v. Pollution Control Board (1983), 118 Ill. App. 3d 772, 780, 455 N.E.2d 188.) The Board observed that in its post-hearing brief BFI initially acknowledged that it bore the burden of proof but subsequently attempted to shift that burden by asserting that the Agency had done nothing to determine whether BFI's plan was feasible. The Board then noted that the Agency had no obligation to perform tests at the BFI facility and stressed that "BFI is entitled to a favorable decision if, and only if, it has successfully proven that the record before the Agency indicated that BFI's Closure/Post-Closure Plan, as originally submitted and supplemented . . . was sufficient to establish that the Davis Junction landfill would not cause a violation of the Act or Board regulations governing hazardous waste disposal facilities." The Board did not state, as BFI claims, that "the Agency is not required to justify its actions with regard to the plan." This language was used by the Board to paraphrase statements made by BFI in its post-hearing brief. Nevertheless, BFI insists that the Board erred in holding that the Agency "need not attempt to meet the applicant's case." Our reading of the Board's opinion, however, nowhere reveals any such holding.

The Board did not even reach the question of the burden upon the Agency at Board hearings, much less state that the Agency need do nothing in order to prevail against a petitioner's showing. If such were the case, the Agency could never lose! BFI agrees with the Board that BFI had the initial burden of establishing a prima facie case. A close reading of its opinion reveals that the Board concluded, not that the Agency was relieved of all burden, as BFI insists, but that BFI had made neither the requisite prima facie showing nor established the ultimate proof of its claims and that the Agency was not obligated to carry the burden for BFI. Consequently, the Board stopped short of any Discussion of what the Agency's burden might have been if BFI had successfully made its initial case. We note also in this regard that, as will be shown, the evidence produced by BFI did not go completely unchallenged, as BFI implies. The Board did not err in its application of the law controlling the burden of proof at Board hearings.

BFI next challenges the Board's findings regarding the modifications imposed by the Agency. Upon review of Board actions it is the task of the appellate court to evaluate the evidence in order to determine whether the findings and Conclusions of the Board were against the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1986), 115 Ill. 2d 65, 70, 503 N.E.2d 343.) The record of the instant case reflects ample support for the Board's findings.

Permits are granted by the Agency pursuant to section 39(a) of the Act, which sets forth the requirements for securing a permit as follows:

"When the Board has by regulation required a permit for [a facility such as Davis Junction] it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility . . . will not cause a violation of this Act or of ...


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