Illinois Environmental Protection Agency

An Illinois appellate court recently ruled that the 15 year post-closure monitoring requirement for sanitary landfills under the Illinois Environmental Protection Act sets the minimum, not maximum, period, and that that the operator will be required to continue post-closure monitoring if the threat of future violations of the Act is present.

D&L Landfill, Inc., the petitioner in the case, operated a landfill in Greenville, Illinois until it ceased accepting waste in 1996.  The Illinois Environmental Protection Agency approved its final post-closure care plan the following year.  Fifteen years after the beginning of the “15 year minimum post-closure care period” identified in the plan, D&L filed an application to end all post-closure care.  The application was originally denied because affirmative remedial action was necessary at the site, including repairs to the final cover.  After that was completed, however, the Agency continued to deny post-closure certification on the grounds that groundwater contamination, although trending downward, still exceeded applicable standards.  It relied on 35 Ill. Adm. Code 807.524(c), which requires that the Agency only certify post-closure care has ended if it determines “(1) That the post-closure care plan has been completed; and, (2) That the site will not cause future violations of the Act or this Part.”  As a result, the Agency told D&L, it had to keep monitoring groundwater until the Agency was satisfied there was no longer a threat of exceedances.

D&L argued that the Agency’s position was impermissible under Section 22.17(a) of the Act, which provides that the owner or operator of a sanitary landfill must monitor gas, water and settling at a closed landfill for 15 years after the site is completed “or such longer period as may be required by Board or federal regulation.” 415 ILCS 5/22.17(a).  D&L asked the court to find that absent a regulation that explicitly extending the 15 year monitoring period, its obligations terminated as a matter of law after it completed its 15 year post-closure care plan.  The Court disagreed, finding instead that Section 22.17(a) should be construed liberally to effectuate the Act’s purposes, and the Agency’s interpretation is superior for the purpose of ensuring adequate responses to unforeseen environmental issues that arise during the post-closure period.

The decision could mean much greater uncertainty for landfill owners and operators. Compliance for 15 years with an approved post-closure care plan does not guarantee that their obligations to a site that has long since ceased generating revenue will end.  Moreover, the opinion suggests that the Agency can place the burden on the landfill to prove that no violations will occur in the future before it can obtain post-closure certification.  Accordingly, landfill owners and operators that had been counting on post-closure care costs being fixed at the cost of compliance with their approved plan might be in for an unpleasant surprise.

We will continue to monitor how this may affect landfill owners and operators – check back here for any new developments.

The Illinois Environmental Protection Agency (IEPA) recently proposed its general “Permit By Rule” or PBR regulations to the Pollution Control Board. The PBR regulations will allow certain emission units at a CAAPP source to be constructed without going through the standard construction permit requirements.  Instead, the owner or operator of the unit is merely required to submit a notice of intent to be covered by a PBR prior to commencing construction. The owner or operator would then construct the unit in accordance with the conditions contained in the PBR rule for that particular unit.  There will be no actual paper construction permit issued by the IEPA.  In order to operate the unit, the owner or operator will need to submit an application for a minor modification to its CAAPP permit and can then operate the unit under the terms of its CAAPP permit.  The IEPA anticipates that a notice of intent and a minor modification application could be submitted at the same time.

There are a few caveats. The proposed emissions unit must be located at a CAAPP source with a CAAPP permit.  The emissions unit cannot be subject to any pre-construction permitting requirements for new source review (NSR) or prevention of significant deterioration (PSD), and cannot be part of a larger project that would otherwise require a construction permit. The notice of intent still contains much of the same general information that would be included in a construction permit application and the owner or operator of the unit is still subject to the same permitting fees that would apply to a person obtaining a construction permit.

The IEPA also proposed to the Board the first PBR, of likely many to come. The first PBR would allow the construction of gas-fired boilers with a heat input capacity of no more than 100 mmBtu/hr at a CAAPP source following submittal of a notice of intent.  According to the IEPA, this type of unit is appropriate for a PBR because it is a common unit type, with relatively consistent emission characteristics.  The IEPA estimates that it typically processes an average of 8-10 construction permit applications for these types of units per year.  We would expect similar types of units to be subject to future PBRs.

The PBR regulations are authorized by Section 39.12 of the Illinois Environmental Protection Act, which was adopted in 2011. The concept of a PBR is common in other states and is a recognition of the limited resources of the environmental agencies. The PBR will allow the IEPA to direct its resources towards permitting more complex emissions sources.  There are also potentially significant benefits to industry, in that an owner or operator can construct emissions units sooner and with fewer delays due to permitting issues.  The benefits to industry will ultimately depend, however, on how many PBRs are eventually adopted.

The Pollution Control Board is holding its second public hearing on the proposed PBR rules in Chicago on Wednesday, November 16th at 1:00 p.m.