23 Order Filed: August 3, 2017
for Review of an Order of the Illinois Pollution Control
Board No. 15-137
Patrick D. Shaw 80 Bellerive Road Attorney for Appellant
Madigan, Attorney General, State of Illinois, David L.
Franklin, Solicitor General, John P. Schmidt, Assistant
Attorney General, Christopher M.R. Turner, Attorneys for
Presiding Justice Moore and Justice Overstreet concurred in
the judgment and opinion.
JUSTICE delivered the judgment of the court, with opinion.
1 This is an action for administrative review of a final
decision and order of the respondent Illinois Pollution
Control Board (Board). The petitioner, D&L Landfill, Inc.
(D&L), applied to the respondent Illinois Environmental
Protection Agency (IEPA) for certification that D&L had
completed post-closure care of a sanitary landfill. The IEPA
denied the certification because the groundwater beneath the
site contained levels of contaminants that exceeded levels
allowed by the Board's groundwater quality regulations.
D&L appealed to the Board, and the parties filed
cross-motions for summary judgment. The Board granted the
IEPA's motion and denied D&L's motion. On
administrative review, D&L asserts that, as a matter of
law, it is only required to monitor the landfill for 15 years
after completing final cover; that it abated the damage to
the final cover, which was the only abatable problem
identified; and, in the alternative, the groundwater quality
standards that it allegedly violated are not applicable to
this landfill. For the following reasons, we affirm.
2 In 1967, this Greenville, Illinois, property contained a
city dump regulated by the Illinois Department of Public
Health. In 1970, the Illinois General Assembly passed the
Illinois Environmental Protection Act (Act), which created
the IEPA and the Board. 415 ILCS 5/1 et seq. (West
2012). Thereafter, the Board created its own solid waste
landfill regulations in the Illinois Administrative Code
(Code), commonly known as the part 807 regulations. 35 Ill.
Adm. Code 807 et seq.
3 On May 13, 1974, D&L received its first IEPA permit,
authorizing it to dispose of general municipal waste and a
small volume of dewatered sewage sludge. The landfill
operated as a "Part 807" landfill.
4 In 1990, the Board amended the landfill regulations and
enacted comprehensive regulations for the development,
construction, and operation of landfills. Under the new
rules, existing facilities could remain open and meet the new
requirements or close within a certain time frame. On August
7, 1992, D&L notified the IEPA that it intended to close,
thereby avoiding the new landfill requirements.
5 On February 15, 1991, the IEPA approved D&L's
initial plan to close the landfill. It issued D&L a
supplemental permit with plans for the landfill's
closure, post-closure care, and groundwater monitoring. The
closure/post-closure plan included specifications for
covering the landfill with final cover and for maintaining
the site for 15 years. This plan was used to develop cost
estimates for the amount D&L needed to post as a
performance bond, which ensured that closure and post-closure
care conformed with the Act.
6 On August 10, 1992, D&L submitted a modified
closure/post-closure care plan that included revised cost
estimates, and the IEPA approved the modification on
September 18, 1992. Over the next several years, the IEPA
issued other supplemental permits dealing with closure
requirements, including groundwater monitoring. On January
21, 1997, the IEPA approved closure activities at the
landfill and identified August 31, 1996, as the beginning of
the "15 year minimum post-closure care period" for
7 On December 31, 2012, D&L filed a supplemental permit
application to end post-closure care at the site. The
application indicated that the 15-year post-closure care
period had been completed, and it addressed landfill gas,
leachate, groundwater, and stormwater management. Concerning
groundwater, D&L acknowledged that analytical results for
2012's third quarter showed that some chemical levels in
the groundwater exceeded naturally existing values and the
values set forth in part 620 of the Board's regulations,
which contains groundwater quality standards. 35 Ill. Adm.
Code 620 et seq., amended at 36 Ill. Reg. 15206
(eff. Oct. 5, 2012). The application stated:
"Considering the number of non-detects, the percentage
of non-exceedences, the decreasing concentrations of
compounds, and the low number of organic exceedances, it
appears the facility is not having a negative impact on local
groundwater quality. Thus, it is proposed [that the]
groundwater monitoring associated with the groundwater
detection monitoring system at this site be
8 On January 18, 2013, the IEPA inspected the site. The
inspection report stated that erosion, settling, ponding
water, and significant ongoing leachate collection were
present on the site. Additionally, in February 2013, the IEPA
analyzed groundwater monitoring data from wells at the site.
It determined that the levels of many substances in the
groundwater, including ethyl ether, tetrahydrofuran,
chlorobenzene, total arsenic, total organic halogens, and
dissolved boron, exceeded naturally existing values and the
values set forth in part 620.
9 The IEPA sent a draft denial letter to D&L on February
26, 2013. The letter stated that D&L "[had] failed
to provide proof that granting this permit would not result
in violations of the [Act]." The letter stated that the
IEPA inspector found several eroded and ponded areas around
the landfill and that the final cover needed to be repaired.
The letter also noted the many unaddressed groundwater limit
10 On August 14, 2013, D&L submitted additional
information in response to the IEPA's draft denial
letter. The submittal indicated that the erosion had been
corrected to the satisfaction of the IEPA inspectors. The
submittal also addressed the groundwater exceedances,
"The overall trend of inorganic parameter concentrations
at the downgradient detection monitoring well locations is
downward. A few organic parameters (TOX, chlorobenzene, ethyl
ether, tetrahydrofuron) have been identified at specific well
locations. The concentrations of these parameters have
generally remained constant and/or have decreased over time.
In some areas (e.g., chlorobenzene at G106 and
tetrahydrofuron at G112) parameters are either no longer
detected or the parameters are not routinely detected at the
As noted in Section VII above, Class IV groundwater standards
were established for this facility by the IEPA. Historical
data and corresponding trend analyses suggest groundwater
quality at downgradient detection monitoring well locations
is generally trending downward, thus constituent
concentrations are below existing concentrations of
constituents in groundwater."
11 On December 3, 2014, IEPA representatives met with D&L
representatives to explain that D&L's submissions did
not address the ongoing groundwater exceedances at the site.
Thereafter, the ...