Haz waste landfill issues at the Appellate Court

OTTAWA, IL --  Here's a report from Tracy Meints Fox, who attended an April 13 hearing at the Illinois Appellate Court in Ottawa. It involved Peoria Disposal Co.’s attempt to have some of the hazardous waste it handles “delisted” so it can be treated and then disposed of in a regular landfill.

 

A lucky panel draw, a great lawyer and a fantastic effort to fill the chairs by Sierra Club activist Joyce Blumenshine made yesterday a real cause for celebration. Joyce rounded up ten people to attend the hearing, and our large presence in the small Italianate courtroom made the citizen engagement in the matter clear to everyone involved.

Peoria Disposal Co. was represented by five lawyers, including Brian Meginnes, Janaki Nair and Claire Manning, and an attorney named Schmidt from the Attorney General’s office representing Illinois Pollution Control Board.

The panel of judges included Carter (the author of the opinion upholding the Peoria County Board's denial of PDC’s original hazardous waste landfill expansion request); Lytton (a panelist on the appeal that denied PDC’s attempt to reclassify itself as a generator); and Vickie Wright (a panelist on the expansion request appeal and the author of the opinion on PDC’s reclassification attempt).

The Peoria Families Against Toxic Waste/HOI Sierra Club attorney Dave Wentworth started off talking about the reasons why PFATW/HOISC have standing to challenge the IPCB decision. Justice Carter interrupted with a lot of questions about how section 41 talks about being a “party” while section 29 talks about “persons adversely impacted.” I was a little surprised that a justice jumped in  in mid-sentence, but Dave assured us later that is normal (though not necessarily typical).

Dave did a great job defending our actions, bringing in the historical order the various statues were enacted, the history of the IPCB in never allowing outside “parties” to adjusted standard cases, comments by IPCB about our “exceptional” participation and dioxin/furan inputs, etc.

When Dave tried to keep things moving forward to specifically discuss the nine criteria under 27A that PDC failed to prove it met and were never considered by IPCB, things got a little wilder. Justice Wright began questioning Dave about how it was the IPCB could rule PDC was not the generator of waste in the earlier case and now grant it a delisting … a privilege reserved for generators.

She clearly stated that in her opinion all ten sites sending waste to PDC for delisting needed to apply for their own delisting permits … and Illinois jurisdiction didn’t apply to all the stuff coming from out of state. She also insinuated that PDC was acting as an un-sited, un-permitted transfer station.

Dave, of course, stepped right up to concur with the Justice’s remarks. Steering back to the 27A factors, Dave was again quickly derailed by Justice Wright. This time she was concerned about what lab specifically tested the samples and who was doing the testing now.

There were several consultations between the lawyers. Dave’s time ran out without much time for a wrap-up, but under the circumstances it was not too significant a setback for us.

Janaki then gave her arguments and more discussion of standing ensued. She tried to make a “net good” for delisting argument. Janaki tried to cast delisting as a different regulatory animal (adjudicatory versus legislative) but I think from the questions asked by Justice Carter even he found it unconvincing.

Schmidt took over to talk about the merits of the case and made the mistake of pointing out that it was the residue of the treatment process rather than the waste itself that was being delisted.

Justice Wright jumped all over that making Schmidt explain that the overall volume increased … not what it typically thought of as “residue.” She then began to question how it was that stacking boxcars of curing residue on top of the closed portions of the landfill is not in fact a vertical expansion.

At that point Janaki interrupted Schmidt to point out that the curing takes days … but Justice Wright’s points were clearly made.

After that things quieted down a bit, Schmidt finished and Dave made his rebuttal. He reiterated the points validating our standing and emphasized that PDC had failed to meet its burden of proof and did not in any way demonstrate that its new process met the nine 27A siting criteria.

He explained our view of the curing process, and the potential for multiple retreat/recure cycles, and refuted Schmidt’s assertion that Peoria County had signed off.

He pointed out that Patrick Engineering merely recommended that Peoria County let the IPCB make a decision, and then concluded that the IPCB had let Peoria County and the public down.

All in all, a really great day!  The hardest part was not cheering at various points in the proceedings and not applauding at the end

    -- Tracy Meints Fox