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D&L Landfill, Inc. v. The Illinois Pollution Control Board

Court of Appeals of Illinois, Fifth District

September 19, 2017

D&L LANDFILL, INC., Petitioner,

          Rule 23 Order Filed: August 3, 2017

         Petition for Review of an Order of the Illinois Pollution Control Board No. 15-137

          Patrick D. Shaw 80 Bellerive Road Attorney for Appellant

          Lisa Madigan, Attorney General, State of Illinois, David L. Franklin, Solicitor General, John P. Schmidt, Assistant Attorney General, Christopher M.R. Turner, Attorneys for Appellees

          Presiding Justice Moore and Justice Overstreet concurred in the judgment and opinion.


          WELCH 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 the site.

         ¶ 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 discontinued."

         ¶ 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 exceedances.

         ¶ 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, stating:

"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 well location.
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 ...

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