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County of Will v. Pollution Control Board

Supreme Court of Illinois

June 20, 2019

THE COUNTY OF WILL et al., Appellants,
v.
THE POLLUTION CONTROL BOARD, Appellee.

          JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Thomas, Garman, and Neville concurred in the judgment and opinion.

          OPINION

          THEIS, JUSTICE

         ¶ 1 In 2010, the Illinois General Assembly directed the Pollution Control Board (Board) to adopt "rules for the use of clean construction or demolition debris [(CCDD)] and uncontaminated soil [(US)] as fill material at clean construction or demolition debris fill operations." Pub. Act 96-1416 (eff. July 30, 2010). The legislature added that the rules must include "standards and procedures necessary to protect groundwater" and provided an inexhaustive list of 12 ways to do so that the Board may consider. Id. One of those ways was groundwater monitoring. Id. The rules ultimately promulgated by the Board required stronger "front-end" testing and certification requirements for CCDD and U.S. but not a "back-end" groundwater monitoring requirement.

         ¶ 2 The sole issue in this appeal is whether the Board's decision was arbitrary and capricious. The appellate court concluded that it was not and affirmed the Board's decision. 2017 IL App (3d) 150637-U. For the reasons that follow, we affirm the appellate court's judgment.

         ¶ 3 BACKGROUND

         ¶ 4 Construction and demolition projects produce materials that must be removed and discarded. In 1997, the General Assembly amended Illinois's Environmental Protection Act (Act) (415 ILCS 5/1 et seq.) to distinguish between general materials and clean materials. See Pub. Act 90-475 (eff. Aug. 17, 1997). The amendment defined general materials or "general construction or demolition debris" (GCDD) as

"non-hazardous, uncontaminated materials resulting from the construction, remodeling, repair, and demolition of utilities, structures, and roads, limited to the following: bricks, concrete, and other masonry materials; soil; rock; wood, including non-hazardous painted, treated, and coated wood and wood products; wall coverings; plaster; drywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other roof coverings; reclaimed asphalt pavement; glass; plastics that are not sealed in a manner that conceals waste; electrical wiring and components containing no hazardous substances; and piping or metals incidental to any of those materials." 415 ILCS 5/3.78 (West 1998) (now codified at 415 ILCS 5/3.160(a) (West 2016)).

         ¶ 5 The amendment defined clean materials, or "clean construction or demolition debris" (CCDD), much more simply as "uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement or soil generated from construction or demolition activities." 415 ILCS 5/3.78a (West 1998) (now codified at 415 ILCS 5/3.160(b) (West 2016)). Under the Act, CCDD is not considered waste, to the extent allowed by federal law,

"if it is *** used as fill material outside of a setback zone[, and] if the fill is placed no higher than the highest point of elevation existing prior to the filling immediately adjacent to the fill area, and if covered by sufficient uncontaminated soil to support vegetation within 30 days of the completion of filling or if covered by a road or structure, and, if used as fill material in a current or former quarry, mine, or other excavation, is used in accordance with the requirements of Section 22.51 of this Act and the rules adopted thereunder." 415 ILCS 5/3.160(b)(i) (West 2016).

         Accordingly, sites that accept CCDD did not have to comply with costly regulatory requirements applicable to landfills that accept GCDD.

         ¶ 6 The following year, the General Assembly recognized that there were effectively no rules to prevent CCDD fill site operators from accepting GCDD and commingling general and clean materials. The legislature consequently amended the Act to prohibit the generation, transportation, or recycling of CCDD without documentation of its weight or volume, its origin, its hauler, and its destination. 415 ILCS 5/21(w) (West 2000). The legislature did not require operators to screen loads coming into their sites.

         ¶ 7 In 2005, the General Assembly closed that gap. The legislature amended the Act to require CCDD fill site operators to obtain permits from Illinois's Environmental Protection Agency (Agency). 415 ILCS 5/22.51(b) (West 2006). That amendment also instructed the Agency to propose and the Board to adopt regulations for the use of CCDD as fill material in current and former quarries, mines, and other excavations. Id. § 22.51(c). The legislature wanted those regulations to include "standards for [CCDD] fill operations and the submission and review of permits." Id. The Board soon promulgated such regulations as part 1100 of title 35 of the Illinois Administrative Code. See 35 Ill. Adm. Code 1100 (2012). Under part 1100, operators were required to screen loads and reject material that did not meet the statutory definition of CCDD.

         ¶ 8 In 2010, the General Assembly revisited the subject of CCDD. The legislature amended the Act to define uncontaminated soil (US) as soil from construction projects that does not contain contaminants harmful to human health or the environment. 415 ILCS 5/3.160(c)(1) (West 2010). Like CCDD, U.S. is not considered "waste" to the extent allowed under federal law and regulations. Id. The amendment required fill site operators to obtain either a certification from the generator that the soil was "never *** used for commercial or industrial purposes and is presumed to be uncontaminated" or a certification from a licensed engineer that the soil is uncontaminated. Id. § 22.51(f)(2)(B). The amendment also required operators to confirm that the CCDD or U.S. was not removed from a site "as part of a cleanup or removal of contaminants." Id. § 22.51(f)(2)(C).

         ¶ 9 Additionally, the legislature for the first time voiced a concern about protecting groundwater and added sections 22.51(f)(1) and 22.51a(d)(1) to the Act. Section 22.51(f)(1) provided:

"[T]he [Agency] shall propose to the [Board], and *** the Board shall adopt, rules for the use of [CCDD] and [US] as fill material at [CCDD] fill operations. The rules must include standards and procedures necessary to protect groundwater, which may include, but shall not be limited to, the following: requirements regarding testing and certification of soil used as fill material, surface water runoff, liners or other protective barriers, monitoring (including, but not limited to, groundwater monitoring), corrective action, recordkeeping, reporting, closure and post-closure care, financial assurance, post-closure land use controls, location standards, and the modification of existing permits to conform to the requirements of this Act and Board rules. The rules may also include limits on the use of recyclable concrete and asphalt as fill material at [CCDD] fill operations, taking into account factors such as technical feasibility, economic reasonableness, and the availability of markets for such materials." Id. § 22.51(f)(1).

         Section 22.51a(d)(1) provided:

"[T]he Agency shall propose to the Board, and *** the Board shall adopt, rules for the use of [US] as fill material at [US] fill operations. The rules must include standards and procedures necessary to protect groundwater, which shall include, but shall not be limited to, testing and certification of soil used as fill material and requirements for recordkeeping." Id. § 22.51a(d)(1).

         ¶ 10 The Agency's Proposal

         ¶ 11 The Agency went to work. In February 2011, the Agency published an overview of draft regulations and solicited input on them from "a diverse set of stakeholder groups." According to the Agency, it received 88 pages of comments from 24 stakeholder groups in the public and private sector. On April 29, 2011, the Agency published an overview of revised draft regulations and requested further feedback from stakeholders. Three months later, on July 29, 2011, the Agency filed its proposed regulations with the Board. The proposal contained eight subparts, labeled A through G. Subpart A contained general provisions, including revised and new definitions for terms used in part 1100. Subpart B concerned standards for CCDD at fill operations. Subpart C concerned permit application information for CCDD fill operations. Subpart D concerned procedural requirements for permitting CCDD fill operations. Subpart E concerned U.S. fill operations. Subpart F concerned standards for U.S. at fill operations. And subpart G concerned groundwater monitoring.

         ¶ 12 Subpart G required owners and operators of permitted CCDD and U.S. fill sites to install groundwater monitoring systems-essentially, wells-and to collect water samples annually. Those samples could not exceed the groundwater quality standards listed in part 1100. See 35 Ill. Adm. Code 620.410 (2012). In the event of an exceedance, an owner or operator would be required to notify the Agency, to prepare a remediation plan, and to implement and continue that plan until the fill site had no violations for three years. Subpart G applied for the "active life" of a fill site, but exempted shuttered sites and sites undergoing "dewatering," a process for removing excess water.

         ¶ 13 In its "STATEMENT OF REASONS" supporting its proposal, the Agency stated that its outreach efforts resolved significant concerns raised by interested parties. However, the Agency further stated that disagreements with its proposal remained. One area of disagreement was groundwater monitoring. On that subject, the Agency noted,

"Several parties oppose the groundwater monitoring requirements of proposed Subpart G of Part 1100. In their comments to [the Agency] they assert that the load checking requirements of Subpart B *** are sufficiently protective of groundwater and that the [Agency's] proposed groundwater monitoring program will force many fill operations to shut down due to the high cost of installing and sampling monitoring wells."

         ¶ 14 The Agency acknowledged that its proposal would increase costs for fill site operators but asserted that "the extent of the cost increase is unknown and may vary significantly between fill operations." The Agency insisted that it tried to mitigate those costs and felt they were outweighed by the benefits of groundwater monitoring. Because the Agency "cannot be sure that the front-end screening process will keep 100% of contamination out of the fill operations, the groundwater monitoring requirement is necessary to detect any contamination of groundwater and provide timely corrective action and remediation." Additionally, the Agency believed that "a groundwater monitoring program is important at fill operations because the facilities are not required to have a protective liner to control contaminant migration and because they are consolidating a large volume of offsite materials into one area with that material often placed directly into the groundwater flow."

         ¶ 15 The Board's Base Docket Proceedings

         ¶ 16 The Board docketed the proposed regulations and held two hearings on them in late 2011. At the first hearing, the Agency presented testimony in support of its proposed regulations from Stephen Nightengale, manager of the Agency's bureau of land permit section, Paul Purseglove, manager of the Agency's bureau of land field operations section, Douglas Clay, manager of the Agency's division of land pollution control, and Leslie Morrow, an Agency environmental toxicologist. At the second hearing, the Agency presented additional testimony from Nightengale and Thomas Hornshaw, manager of the Agency's toxicity assessment unit. Eleven other public and private sector witnesses testified. The Board also received 20 written comments from various individuals, business entities, advocacy groups, and public bodies, including the Agency and the State of Illinois, as well as an official at the resource recovery division of the Will County Land Use Department.

         ¶ 17 The Board's First Order

         ¶ 18 On February 2, 2012, the Board issued a 116-page, first-notice opinion and order. The Board stated that it had reviewed the record and then summarized the testimony and comments in meticulous detail. Regarding subpart G and the proposed groundwater monitoring requirement, the Board noted a lack of unanimity on that issue. The Board found:

"[T]he record does not include evidence to demonstrate that CCDD or [US] sites are a source of groundwater contamination. Further, the record indicates requiring groundwater monitoring would impose potentially sizeable costs that may have adverse impacts on the fill operation. CCDD and uncontaminated soils are not classified as wastes, so do not require the stringent rules that exist for nonhazardous waste landfills. Therefore, *** the record does not support groundwater monitoring at this time."

         ¶ 19 The Board was "disturbed" by the inconsistency between the Agency's assertion that the costs of groundwater monitoring are unknown and its assurance that the fiscal impact of such a program would not be detrimental. Section 27 of the Act requires consideration of the economic reasonableness of any regulations. The Board concluded that groundwater monitoring is not economically reasonable because evidence indicated that monitoring is "costly and could potentially result in businesses closing."

         ¶ 20 As detailed above, the Board noted that "the record does not include evidence to demonstrate that CCDD or [US] sites are a source of groundwater contamination," and CCDD and U.S. "are not classified as wastes, so do not require the stringent rules that exist for nonhazardous waste landfills." The Board turned to the Act, which required the Board's rules to include "standards and procedures necessary to protect groundwater." According to the Board, the legislature listed 12 possible methods of doing so; one of those was groundwater monitoring. The Board surmised that "while groundwater protection is a legislative priority, this protection can be achieved without requiring groundwater monitoring." The Board decided to strengthen "front-end" procedures, by requiring soil testing and certification by a licensed professional engineer or geologist whenever the source of CCDD or U.S. is a "potentially impacted property" where the materials are more likely to be contaminated, but to delete subpart G of the Agency's proposal.

         ¶ 21 During the first notice period, the Board held another hearing in early 2012. At that hearing, the Agency presented testimony from Clay and Richard Cobb, a licensed professional geologist and the Agency's deputy manager of its bureau of water division of public water supplies. Thirteen other public and private sector witnesses testified. And the Board received written comments from 27 individuals, business entities, advocacy groups, and public bodies, again including the Agency, the State, and the Will County Land Use Department.

         ¶ 22 The Board's Second Order

         ¶ 23 On June 7, 2012, the Board issued a 130-page, second-notice opinion and order. As it did in its first order, the Board stated that it had reviewed the record and then detailed the testimony and comments. The Board identified and discussed a number of issues that the participants raised, including groundwater monitoring. In that regard, the Board reiterated, "The Act does not require groundwater monitoring, but only that groundwater be protected." The Board highlighted the options provided by the legislature for protecting groundwater and stated that its rules addressed several of those options-"testing and certification of soils to be deposited in CCDD and [US] fill operations, surface water control, recordkeeping and reporting, and closure and postclosure care." The Board returned to the requirement of soil testing. If the source of materials is such a potentially impacted property, then "testing must be done" so materials do not exceed maximum allowable concentrations (MACs) of contaminants. The Board explained:

"If [materials] exceed the MACs[, they] are not 'uncontaminated' and cannot be used as fill in a CCDD or [US] fill operation. Thus, the Board's rules prohibit using [materials] that are contaminated as fill material ***. As the rules do not allow for contaminated material to be placed in a fill operation, the Board is unconvinced that groundwater monitoring is required."

         ¶ 24 The Board also engaged the State's argument that CCDD and U.S. are waste and should be regulated in the same manner as other materials that pose a risk to the public. The Board quoted section 3.160(b) of the Act, which states that, to the extent allowed by federal law, CCDD "shall not be considered ...


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