ILLINOIS POLLUTION CONTROL BOARD
December
16,
1993
PERHATREAT OF ILLINOIS,
INC.,
)
Petitioner,
)
v.
)
PCB 93—159
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
STEPHEN HEDIGER OF MOHAN, ALEWELT, PRILLAMAN
&
ADAMI
APPEARED ON
BEHALF OF THE PETITIONER; and
RICHARD
C.
WARRINCTON,
JR. APPEARED ON BEHALF OF RESPONDENT.
OPINION & ORDER OF THE BOARD
(by G.
T.
Girard):
On August 27,
1993, petitioner,
PerniaTreat of Illinois
(PerniaTreat)
filed
a petition contesting certain conditions
imposed by the Illinois Environmental Protection Agency (Agency)
on a permit for closure of a waste facility regulated under the
Resource Conservation and Recovery Act (RCRA).
Hearing was held
on November 8,
1993.
Briefs were filed by mail by both parties
on November 19,
1993
(petitioner’s brief was received on November
23,
1993,
and respondent’s brief was received November 24,
1993).
Petitioner filed its reply on November 29,
1993, with a motion to
file instanter.
That motion is hereby granted.
The Board’s responsibility in this matter arises from
Section 40 of the Environmental Protection Act (Act).
(415 ILCS
5/40 (1992).)
The Board is charged, by the Act, with a broad
range of adjudicatory duties.
Among these is adjudication of
contested decisions made pursuant to the permit process.
More
generally,
the Board’s functions are based on the series of
checks and balances integral to Illinois’ environmental system:
the Board has responsibility for rulemaking and principal
adjudicatory functions, while the Illinois Environmental
Protection Agency (Agency)
is responsible for carrying out the
principal administrative duties,
inspections, and permitting.
BACKGROUND
PermaTreat operates a wood treatment facility in Marion,
Williamson County,
Illinois, which uses a solution of copper,
chromium and arsenic (hereinafter ~~CCAtt)
to treat raw wood
products to increase their useable life span.
(R. at 50;
R. at
2
58;
R. at 182; R.
at 316-317).’
PermaTreat’s facility is located
on approximately 14 acres of land
(R. at 316), bordered to the
east by commercial properties,
including warehouses and service
stations, to the south by other commercial property,
including a
railroad property and Central Illinois Public Service Company
facilities, to the east with vacant land, and to the north by
other industrial property, including an industrial park and
warehouses.
(R. at 91; Tr. at 15;
Tr. at 37-39.)
The property
was formerly the site of the City of Marion’s municipal sanitary
sewage lagoon.
(R. at 216; Tr. at 64—65.)
The wood treatment process utilized by PermaTreat entails
the pressurized injection of the CCA solution into raw wood
products.
(R. at 50;
R. at 58;
R. at 316—317.)
The raw wood is
loaded into a large cylindrical treatment vessel, the treatment
vessel doors are closed and sealed, and the air is removed from
the treatment vessel.
(R.
at 317.)
The vessel is then filled
with the CCA solution, and the pressure of that solution is
increased and held until the treatment process is completed.
(R.
at 317.)
Following treatment, the solution is drained from the
treatment vessel into the work tank,
and any residual CCA
solution is drained from the treatment vessel into a collection
sump directly under the treatment vessel
(R. at 317; R. at 318).
Finally, the treated wood is removed from the cylinder and taken
to a drip pad, where it is held for as long as 48 hours, until
all residual CCA solution has dripped from the treated lumber.
(R. at 317;
R.
at 58.)
Following the dripping process, the
treated lumber is moved to the service yard.
(R. at 58.)
The drip pad
is sloped to return the drippage from the
treated lumber products at all locations of the drip pad to the
collection sump underneath the treatment vessel.
(Tr. at 58;
R.
at 181;
R. at 323; Tr. at 27—28;
Tr.
at 45; Tr. at 64.)
Liquid
accumulation in the sump is pumped back into the process and re-
used.
(R. at 3.)
The entire drip pad is covered with a roof,
which extends several feet beyond the perimeter of the drip pad.
(R. at 328.)
A curb along the south and east edges of the drip
pad serves both as a stop for forklifts operating on the pad, and
as a splash guard for CCA solution from treated lumber.
(R. at
319; Tr.
at 53—54.)
In addition to the CCA solution returning from the drip pad
and draining from the treatment vessel, the collection sump also
accumulates mud, sawdust, and other foreign material during
normal process.
(R. at 319-320.)
Periodically, PerniaTreat must
clean these materials from the collection sump to maintain the
1
The Board has cited the transcript as “Tr. at
“;
the
petitioner’s brief as
“P.
Br. at
“;
the petitioner’s response
brief as “P. Res.
Br. at
“;
the record on appeal as
“R. at
H;
and the Agency’s brief as “Aq
Br.
at
“.
3
proper tank working volume.
(R.
at 320.)
The cleanout of this
accumulated waste material is accomplished manually, by scooping
the mud and bark from the sump and preparing it for shipment to a
hazardous waste facility in Valparaiso,
Indiana, and ultimately
to Emelle,
Alabama.
(R.
at 182.)
Because of this collection sump waste material, PermaTreat
is a hazardous waste generator, and has been given USEPA
generator number 1LD063698971.
(R.
at 58-59.)
The sump waste
materials have been identified as D004—D007 wastes
(R. at 182);
this waste accumulates at the rate of approximately 300 to 400
pounds
(180 kilograms)
per month
(R. at 279).
On June 20,
1991,
when Gerald Steele conducted his RCRA generator inspection at
PermaTreat’s facility, he observed that some of the accumulated
waste materials had been placed on pallets at the southeast
quarter of the southwest section of the drip pad.
(R. at 183; R.
at 430.)
PerinaTreat from time to time loaded barrels with these
materials to manifest off site.
(R. at 182—183.)
The Agency has
taken the position that these materials constitute a “waste pile”
subject to RCRA permitting and/or closure, and have demanded that
PermaTreat take those steps.
(R. at 276.)
Although PermaTreat
denies that this is a “waste pile” subject to such regulatory
requirements
(R. at 278-285),
it did submit a closure plan
(R. at
315-335) which was ultimately denied by the Agency
(R. at 309—
313).
PermaTreat submitted a timely revised closure plan
(R. at
315-335), which was approved with conditions by the Agency
(R. at
366—375).
Pursuant to 35 Ill.
Adm. Code 725.212(c)
and 35 Ill.
Adm. Code 703.280, PermaTreat then requested a modification of
that closure plan approval
(R.
at 377-388).
In response to this
request, the Agency agreed to modify the closure plan approval
conditions in some respects, but denied modifications in other
respects
(R. at 417-427).
This appeal of the Agency’s refusal to
modify those aspects of the closure plan approval subsequently
ensued.
REGULATORY
FRAMEWORK
This
is
a
permit
appeal
under
the
Board’s
RCRA
Subtitle
C
provisions.
The
specific
provisions
which
apply
in
this
proceeding are
35 Ill. Adm. Code 725.358,
725.211, and 725.214.
Section 725.358 provides:
a)
At closure, the owner or operator must remove
or decontaminate all waste residues,
contaminated containment system components
(liners,
etc.),
contaminated subsoils and
structures and equipment contaminated with
waste and leachate,
and manage them as
hazardous waste unless 35
Iii.
Adni. Code
721.103(d)
applies; or
4
b)
If, after removing or decontaminating all
residues and making all reasonable efforts to
effect removal or decontamination of
contaminated components, subsoils, structures
and equipment as required in paragraph (a),
the owner or operator finds that not all
contaminated subsoils can be practicably
removed or decontaminated,
it must close the
facility and perform post—closure care in
accordance with the closure and post—closure
requirements that apply to landfills (Section
725.410).
Section 725.211 provides:
a)
Minimizes the need for further maintenance;
and
b)
Controls, minimizes or eliminates,
to the
extent necessary to protect human health and
the environment, post-closure escape of
hazardous waste,
hazardous constituents,
leachate, contaminated run-off or hazardous
waste decomposition products to the ground or
surface waters or to the atmosphere,
and
C)
Complies with the closure requirements of
this Part,
including,
but not limited to, the
requirements of Section 725.297,
725.328,
725.358,
725.380 725.410, 725.451, 725.481
and 725.504.
Section 725.214 provides:
During the partial and final closure periods, all
contaminated equipment,
structures and soil must be
properly disposed of,
or decontaminated unless
specified otherwise in Section 725.297,
725.328,
725.358, 725.380 or 725.410.
By removing all hazardous
wastes or hazardous constituents during partial and
final closure, the owner or operator may become a
generator of hazardous waste and shall handle that
hazardous waste
in accordance with all applicable
requirements of 35 Ill.
Adin. Code 722.
APPLICABLE STANDARD
As a preliminary matter,
it should be noted that the Board
has long held that,
in permit appeals the burden of proof rests
with the petitioner.
The petitioner bears the burden of proving
that the closure plan,
absent the contested conditions imposed by
5
the Agency, would not violate the Environmental Protection Act
(Act)
(415 ILCS 5/1 et.
seq.)
or the Board’s regulations.
This standard of review was enunciated in Browning—Ferris
Industries of Illinois,
Inc.
v. Pollution Control Board,
179 Ill.
App. 3d 598,
534 N.E.2d 616,
(Second District 1989)
and
reiterated in John Sexton Contractors Company v. Illinois
Environmental Protection Agenqy, PCB 88-139, February 23,
1989
(Sexton).
(Ag. Br.
at 5.)
In Sexton the Board held:
that the sole question before the Board
is whether the
applicant proves that the application, as submitted to
the Agency, demonstrated that no violations of the
Environmental Protection Act would have occurred if the
requested permit had been issued.
(Ag. Br. at p.
5.)
Therefore,
petitioner must establish to the Board that the
closure plan the petitioner submitted to the Agency would not
violate the Act or the Board’s rules
if issued without the
contested conditions.
ISSUES
According to the petitioner,
this permit appeal raises two
broad issues which are:
(1)
Whether the Agency’s Conditions number
6 and
7, requiring PermaTreat to inspect the drip
pad for cracks and nonsecure construction
joints,
are necessary to ensure compliance
with the clean—closure requirements of 35
Ill. Adm. Code 725.111, 725.214, and
725.358(a); and
(2)
Whether the Agency’s Conditions number
8 and
9, requiring PermaTreat to test soils south
and east of the drip pad, are necessary to
ensure compliance with the clean—closure
requirements of 35 Ill. Adm. Code 725.111,
725.214, and 725.358(a).
A subissue to this
second issue
is whether,
if the soil sampling
requirement is an appropriate condition,
the
cleanup objectives established by the Agency
(premised upon Class
1 groundwater standards,
rather than upon soil standards)
are
necessary to establish compliance with the
clean—closure requirements of 35 Ill.
Adm.
Code 725.111,
725.214, and 725.358(a).
(PBr.
at 6.)
DISCUSSION
6
Conditions
6 and 7.
Petitioner begins its arguments by asserting that PermaTreat
is a “totally enclosed treatment facility” as defined at Section
720.110 of the Board’s regulations.
Thus, petitioner argues that
PermaTreat is exempt from any permit requirements as Section
703.123(d)
specifically exempts “totally enclosed treatment
facilities” from the permit requirements.
In support of its
position, petitioner states that the drip pad is sloped to return
all liquids from the pad to the wood treatment process and the
“waste pile” was placed on the drip pad to insure that any
liquids from the pile would return to the
suinp pit.
(P.Br. at 7-
8.)
Further, the petitioner states:
the entirety of the drip pad is covered with a roof,
which extends several feet beyond the perimeter of the
drip pad.
(R.
328).
(sic) A curb along the south and
east edges of the drip pad serves both as a stop for
forklifts operating on the pad, and as a splash guard
for CCA solution from the treated lumber.
(R.
319; Tr.
53— Tr.
54).
(sic)
(P.Br. at 4.)
Petitioner also argues that any cracks or nonsecure joints
in the drip pad,
if any exist,
could have no bearing on clean
closure of the “waste pile”.
(P.Br.
at 8.)
Petitioner asserts
that implicit in the requirements of Section 725.358(a)
is an
assumption that any “contamination” would have resulted from the
“waste pile” and not some other source.
The petitioner argues
that the “RCRA closure requirements have never been intended to
allow the Agency to probe into aspects of the site wholly
unrelated to the hazardous waste management unit at issue.”
(P.
Br. at 8-9.)
Petitioner states that on a daily basis the CCA
solution drips off of treated lumber onto the drip pad including
the location where the “waste pile” was located.
(P.Br. at 9.)
The petitioner assert that any CCA material present on the drip
pad is the result of the daily operations of the facility rather
than “the isolated and temporary location of the ‘waste pile”.
(P.
Br. at 9.)
Petitioner continues its argument by pointing to several
pages in the transcript of this hearing where “all parties agree
that the materials on this ‘waste pile’ were dry, and so did not
drip any CCA solution onto the drip pad”.
(P.Br. at
9 citing to
Tr. at
19,
25,
27, and 45-48.)
Thus, petitioner maintains the
inspection of the drip pad required by the Agency would have no
bearing on the certification of closure for this “waste pile”,
“but in fact would require PermaTreat to comply with the new
Subpart W standards,
35 Ill.
Adxn. Code 725.540-725.545, at a date
substantially sooner than is required by those recent
regulations.”
(P.Br.
at
9.)
The Subpart W regulations require
independent assessment of drip pad integrity as well as
specifying the manner of construction and materials to be used.
7
However, any existing drip pads may stay in service for up to 15
years.
(P.Br. at 9.)
The petitioner also puts forward the following argument:
Parenthetically,
PermaTreat would add that this
mandated liner inspection is not necessary to meet the
clean closure requirements of 35 Ill.
Adm. Code
§703.159(d), either.
That provision, of course,
states
that if a waste pile clean closure is to be
accomplished pursuant to Part 725 regulations,
nevertheless the closure by removal standards of Part
724 must be complied with,
in the absence of which a
post-closure permit must also be obtained.
In turn,
35
Ill. Adm. Code §724.358(c) provides that even if a Part
724 “clean closure”
is accomplished, nevertheless a
contingent post—closure plan still must accompany the
closure plan if the facility’s
(sic) does not comply
with the liner requirements of 35 Ill. Adm. Code
§724.351(a).
PermaTreat has informed the Agency of its
intention to obtain the equivalency determination of
§703.159(d)
(see R.
295-R.
296), and the Agency has
never required the submittal of any such contingent
post-closure plan. Accordingly, the Agency agrees that
the drip pad, which was underneath the “waste pile”
identified by the Agency, complies with these liner
requirements.
Clearly this is
a correct determination,
inasmuch as the Record reveals that the liner is
protected from precipitation by a roof which extends
well over its edges
(~
R.
328), no liquids or free
liquids were in the “waste pile”
(Tr.
19; Tr.
25; Tr.
27; Tr.
45-Tr.
48),
or alternatively no moist materials
were ever in direct contact with the pad
(R.
384;
R. 379), the pad is elevated well above the ground
level, thereby prohibiting the run-on of any liquids,
and is sloped and bermed as well
(~
Resp.
Ex.
1,
photo #4;
R.323, ¶5.a), the placement of the “waste
pile” was such as to protect the materials from wind
dispersal
(R.242), and the dry materials on the “waste
pile” were not subject to any leachate generation
through decomposition of other reactions, but instead
were held for manifesting off—site.
See 35 Ill. Adm.
Code §724.350(c)
(providing an express exemption to the
otherwise-applicable liner requirements of
S724. 351(a)).
Moreover, the new Subpart W regulations
recognize that the drip pad utilized by PermaTreat in
its daily operations easily meets the design
requirements of §724.351(a).
~
35 Ill. Adm. Code
§725.543(a).
(P. Br. at 10—il.)
8
The Agency states that the petitioner’s engineer, Roger
Walker, provided a description of the operation of the “waste
pile”
in the record.
Mr. Walker’s description included an
explanation that the CCA “was allowed to drain from the material
directly onto the floor and then drain back into the sump for
recovery”.
(Ag. Br. at
6, citing R. at 322.)
The Agency further
states that although Mr. Bond, owner of the facility, stated that
he had no knowledge of the “waste pile” containing free liquids;
“(t)he description of the operation by Mr. Walker is confirmed by
his testimony of accuracy
(Tr. p.
88)”.
(Ag. Br. at 6.)
The Agency also argues that the testimony by Agency
employee, Mr. Gerald Steele,
indicated that the material had been
resting at least in some areas directly on the concrete.
(Ag.
Br. at
6,
citing to Tr. at 18 and Resp.
Exh.
1 at 5 and 6.)
The
Agency then states that “(w)ith the presence of the CCA chemicals
confirmed on the concrete it became important to the Agency that
the base was impermeable” as required by the Board’s regulations.
(Ag. Br. at 6.)
The Agency further states that the presence of
an “apparent” expansion joint constructed under the location of
the waste pile with an apparent crack in it caused concern the
that the hazardous constituents had leached into the subsoil and
closure standards of Section 725.358(a)
could not be met.
(Ag.
Br. at 7.)
PermaTreat has consistently maintained that RCRA
requirements do not mandate RCRA closure of the “waste pile”.
PermaTreat cites subsection 721.102(e) (1) (A) which is part of the
definition of solid waste found at~Section 721.102.
Subsection
721.102(e) (1) (A)
specifies:
e)
Materials that are not solid waste when
recycled.
1)
Materials are not solid wastes when
they can be shown to be recycled by
being:
A)
Used or reused as ingredients
in an industrial process to
make a product.
9
The Board notes that the RCRA exclusions at 721.1042 can also
assist in this determination.
The hazardous waste exclusion at
subsection 721.104(c)
states:
c)
Hazardous wastes which are exempted from
certain regulations.
A hazardous waste which
is generated in a product or raw material
storage tank,
a product or raw material
transport vehicle or vessel,
a product or raw
material pipeline,
or in a manufacturing
process unit or an associated non—waste—
treatment manufacturing unit,
is not subject
to regulation under 35 Ill.
Adin.
Code 702,
703,
705 and 722 through 725 and 728 or the
notification requirements of Section 3010 of
RCRA
until it exits the unit in which it was
generated, unless the unit is a surface
impoundment,
or unless the hazardous waste
remains in the unit more than 90 days after
the unit ceases to be operated for
manufacturing, or for storage or
transportation of product or raw materials.
A plain reading of the regulations at subsections
721.104(e) (1) (A) and 721.104(c), when applied to the PermaTreat
operation, does not appear to support the Agency’s contention
that the “waste pile” should be classified as a RCRA hazardous
waste while it is on the drip pad.
PermaTreat has shown that the
drip pad is an integral component of the manufacturing process.
The purpose of the drip pad
is to collect unused CCA solution for
return to the pressure treatment vessel where wood is impregnated
with the CCA solution.
The drip pad is clearly a component of
the “manufacturing process unit” and materials on the drip pad
would not seem to be hazardous wastes because of the exclusion at
subsection 721.104(c).
Additionally, this exclusion continues up
to 90 days after the unit ceases to be operated for
manufacturing.
There is no evidence in the record that
PermaTreat is ceasing operation.
The Board observes that the
waste pile does not appear to be subject to the RCRA closure
requirements, based on the record before the Board, in this
proceeding.
2
The Board notes that in August of 1991, the Board adopted
an additional exclusion in Section 721.104(a) (9) (A) which
excludes “spent wood preserving solutions that have been used and
are reclaimed and reused for their original intended purpose”.
Thus, the CCA which runs off the lumber and the “waste pile” on
the drip pad is excluded from the definition of solid waste,
because it
is reused.
10
If the “waste pile” at issue
is not subject to RCRA closure
requirements, then PermaTreat should not be required to have a
closure plan for the “waste pile”.
However, while PermaTreat has
maintained throughout this process that the waste pile was not
subject to RCRA closure requirements
(R. at 278,
279), the
subject of this permit appeal only contests the imposition of
Conditions #6,
7,
8 and 9, not the underlying permit.
Therefore,
the Board will decide the issues presented as if a closure plan
is required.
The Board first notes with regard to conditions
6 and 7 that
PermaTreat has agreed to steam clean the concrete pad, which is
discussed in condition
6.
(P.Res.Br. at 2—3.)
Therefore, the
Board will uphold the first paragraph of condition 6.
The
remaining portion of condition 6 requires an inspection of the
drip pad to insure the integrity of the drip pad.
(R. at 419-
420.)
Condition 7 requires PerinaTreat undertake soil testing if
the drip pad is not sound.
The record in this case establishes that a crack was
discovered in the drip pad during
a 1993 inspection.
(Tr.
at
53.)
Further, Mr. Steele indicated that after the July 1993
inspection he reviewed the photographs from June of 1991 and
noticed the crack.
(Tr. at 21 and 31-32.)
However, the record
also indicates that the waste pile had been removed in 1991.
(R.
at
4,
9—18.)
Thus,
in 1993,
when the crack was first officially
noted by the Agency,
the waste pile had been removed.
(Tr. at
54.)
Further, Mr Steele, when asked why he did not note the
crack in his June 1991 inspection report,
stated that “t)he
crack was not particularly noticeable during the visit”.
(Tr. at
29.)
The record also establishes that PermaTreat on a daily basis
treats lumber and places the lumber on the drip pad to drain off
excess CCA.
The “waste pile” which,
at worst, included mud was
also placed on the drip pad in 1991 along with lumber to dry.
And in fact, the Agency inspector stated that the pile was dry
and any free standing liquids at the site could not be attributed
to the waste pile.
(Tr. at 21 and 27.)
The Board is not persuaded that the crack existed in 1991.
Further, the Board is not persuaded that a pile consisting of mud
which was dry at the time of inspection could have contributed to
contamination.
Therefore,
after a comprehensive review of the
record, the Board finds that condition 6, oth~rthan the first
paragraph, and condition
7 are not necessary conditions.
Conditions
8 and
9.
Conditions
8 and 9 require PermaTreat to test the soils to
the east and south of the drip pad to demonstrate that “no soil
(contamination
is present in the area surrounding the former
11
waste pile”.
(R.
at 420 and 421.)
The conditions set forth the
specific number of samples, the distance between samples and the
depth of the samples.
(R.
at 420 and 421.)
The petitioner maintains that no record exists to support
the Agency’s requiring soil samples in the closure plan.
The
petitioner points out that the drip pad is constructed to slope
toward the northwest; therefore,
the Agency is requiring testing
of soils around the highest elevation of the drip pad.
(P. Br.
at 12.)
Further, the petitioner points out that the Agency
testified that the “only reason it included that condition was
the some ‘ponding of green liquids’ was observed east of the drip
pad”.
(P. Br. at 12 citing Tr. at 56.)
However, the petitioner
maintains that the observation was made some two years after
removal of the “waste pile” and the permit reviewer
“misremembered what he observed during that inspection,
as was
revealed in his own testimony”.
(P.Br.
at 12 citing Tr. at 59-
70C,
94, 73—75 and 85—88.)
The petitioner also maintains that the information before
the Agency established that the placement of the materials on the
“waste pile” and the composition of those materials made it
impossible for any contaminated material to leave the drip pad.
(P.
Br. at 12.)
The petitioner states that the pile was at
least
3 feet away from the southern edge of the drip pad and at
least
7 feet away from the eastern edge.
(R. at 384; P. Br. at
13.)
Further, the petitioner asserts that wind dispersal was not
possible since the waste pile area was protected from the wind.
(R.
at 384 and 385;
P.
Br.
at 13.)
The Agency states that the closure plan refers to an
incident where treated but not yet dried lumber fell from the
drip pad onto the adjoining soil.
(R. at 322.)
The soil was
removed and testing of the soil was undertaken for arsenic and
chromium.
(R. at 322.)
The Agency points out that there is no
indication that the soil was tested for copper concentration.
(Ag. Br.
at 8.)
The Agency argues that the soil removal and
testing is insufficient to demonstrate that all “contaminated”
soil was removed.
(Ag. Br.
at 8.)
The Agency also argues that the waste had been piled so high
as to “overflow the screen\pallet assembly and had tumbled down
to the concrete surface”.
(Ag. Br. at 8.)
Further the edges of
the concrete base under the waste pile bore the distinctive green
tint of the CCA solution and terminated at the soil surrounding
the concrete base.
(Ag. Br. at 9.)
Mr. Steele and Mr. Sinnott
indicated that they had observed ponding in the soil around the
“waste pad” with the green tint of CCA.
(Ag. Br. at 9.)
In response to the Agency’s argument, the petitioner
maintains the position that any staining of the drip pad occurs
as a part of the daily operations at the facility.
(P.Br. at
12
13.)
Further, the soils which may have been contaminated by
falling lumber have been removed, according to petitioner.
The
petitioner argues that the existence of the stained soil and its
removal have nothing to do with the waste pile absent a
connection between the waste pile and the contaminated soil.
(P.
Br. at 14.)
The petitioner maintains that no connection exists
here.
The Board finds that the record before the Agency does not
support the imposition of conditions
8 and 9.
The photographs
included in the record show material which is clearly dry
arranged on the drip pad.
The drip pad slopes to the northwest
as agreed to by the Agency witnesses.
(Tr. at 28 and 45.)
In
addition, the Agency’s witness, Mr. Steele, admitted that the
material was dry when he inspected the site.
(Tr. at 47)
Mr.
Steele also admitted that he could not say for sure if the
staining seen in the photographs was there prior to the placement
of the waste pile and Mr. Steele also indicated that he did not
notice the crack in the drip pad when inspecting the waste pile;
rather, he reviewed the pictures after an inspection in 1993 and
spotted the crack.
(Tr. at 29 and 30.).
Mr. Steele also
testified that he “could not say” the free standing liquid shown
in the photographs “came from the waste pile”.
(Tr. at
21..)
Although the photographs may show material which is hazardous,
there is no way to connect the liquid to the waste pile.
If the
liquid is the CCA mixture it could also have come from treated
lumber.
Although any contamination of soils is a violation of
the Board’s regulation and the Act, this is not the forum to seek
relief.
The Board will strike conditions
8 and 9.
Groundwater standards
The petitioner argues that if the Board upholds conditions
8
and
9 the clean-up objectives to apply should be those of Class
2
groundwater standards rather than the Class
1 standards imposed
by the Agency.
The petitioner maintains that the soils native to
the area are strongly acidic and because of subsurface geology
water supplies are difficult to obtain.
(P. Br. at 15.)
The
nearest drinking water well is over one mile from the site and
the rare private wells
in the area are from aquifers 50 to 880
feet deep.
(P.
Br. at 15.)
The Agency states that at the time of the writing of the
closure permit the information available to the Agency came from
a report containing well constri.. ttion reports required by the
Illinois Department of Public Health.
The information detailed
the geological formations the well driller passed through in
constructing a well and in some cases the depth and type of
formation containing water.
(Ag. Br.
at 10.)
The Agency stated
that the only information provided by petitioner was an assertion
that the facility was in a location which had been a sewage
treatment lagoon.
(Ag. Br. at 10.)
13
A review of the clean—up objectives is not necessary as the
Board has stricken conditions
8 and 9.
CONCLUSION
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The first paragraph of conditions
6 of PermaTreat’s RCRA
Subtitle C closure permit is upheld.
The remainder of condition
6, and all of conditions 7,
8 and 9 are hereby stricken from the
Agency modified closure permit issued to PermaTreat of Illinois.
IT IS SO ORDERED.
Board Member J. Theodore Meyer concurs.
Chairman Claire A. Manning and Board Member Marili McFawn
dissent.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days.
The Rules of the Supreme Court of Illinois establish
filing requirements.
(But see also,
35
Ill. Adm. Code 101.246,
Motions for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion a d order was
adopted on the
~
day of
~&..‘
1993, by a vote of
5—a
~
Dorothy M. ,$~nn,Clerk
Illinois Pôjlution Control Board
