D&L Landfill, Inc. v. Illinois Pollution Control Board
2017 IL App (5th) 160071
| Ill. App. Ct. | 2017Background
- D&L Landfill operated under older "part 807" permits and completed closure activities; IEPA identified the post-closure period as beginning August 31, 1996.
- D&L sought IEPA certification that post-closure care was complete in December 2012; its application acknowledged groundwater exceedances but argued trends were improving and monitoring could be discontinued.
- IEPA inspections and data review in 2013 found erosion/cover issues and multiple groundwater parameter exceedances of Board standards (part 620); IEPA issued a draft denial and later denied certification (Dec. 29, 2014), citing 35 Ill. Adm. Code 807.524(c) and §§ 807.313, 807.315.
- D&L petitioned the Illinois Pollution Control Board; cross-motions for summary judgment were filed. The Board granted IEPA’s motion, denying certification because the site could cause future violations and part 620 standards applied.
- D&L appealed, arguing (1) post-closure monitoring is limited to 15 years by statute; (2) it had abated the only abatable problem (cover erosion); and (3) part 620 groundwater standards do not apply to part 807 landfills.
- The appellate court affirmed the Board: the 15-year period is a statutory minimum subject to extension where regulations require longer monitoring; part 807 duties apply post-closure; and part 620 standards can apply to part 807 landfills when exceedances exist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §22.17(a) post-closure period | §22.17(a) fixes a 15-year post-closure monitoring period unless a regulation specifically extends that number of years | §22.17(a) sets a 15-year minimum; Board/federal regs (e.g., §807.524(c)) may require longer monitoring when future violations are possible | Court: 15 years is a minimum; Board/regulations may require longer monitoring to prevent future violations |
| Applicability of §§807.313 & 807.315 after closure | Those rules govern "operation" and thus do not apply once landfill is closed | Prior operation can cause ongoing violations; the provisions can be violated post-closure where contamination persists | Court: §§807.313 and 807.315 can apply post-closure if past operation produced ongoing contamination |
| Whether abatement of final cover cured all issues | D&L: cover erosion was abated; no further abatement directive needed; groundwater trends improving | IEPA: groundwater exceedances remained unaddressed; monitoring must continue until standards met | Court: Abatement of cover did not eliminate groundwater exceedances; IEPA properly required continued monitoring and denied certification |
| Applicability of part 620 groundwater standards to part 807 landfills | Part 620 doesn’t exempt part 807 landfills; D&L argued Jersey Sanitation suggested part 620 not required for part 807 post-closure | IEPA/Board: part 620 applies; Board precedent and regulations show no exemption for part 807 landfills | Court: part 620 standards apply to part 807 landfills; Jersey Sanitation facts do not preclude application where exceedances occur |
Key Cases Cited
- Branson v. Department of Revenue, 168 Ill.2d 247 (agency interpretation relevant but not binding)
- Kean v. Wal-Mart Stores, Inc., 235 Ill.2d 351 (rules of statutory construction apply to administrative regulations)
- Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130 (statutory provisions must be harmonized and not rendered superfluous)
- Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286 (legislature not presumed to intend absurd or unjust results)
- Jersey Sanitation Corp. v. IEPA, 336 Ill. App. 3d 582 (discussing post-closure groundwater monitoring and Board’s treatment of conditions)
- People ex rel. Glasgow v. Carlson, 2016 IL 120544 (courts should not read exemptions into regulatory schemes)