ILLINOIS POLLUTION CONTROL BOARD

December 16,

1993

PERMATREAT OF ILLINOIS,

INC.,

)

Petitioner,

)

v.

)

PCB 93—159

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINION

(by C.A. Manning and M. McFawn):

For

the

reasons

set

forth

below,

we

cannot

join

in

the

decision of the majority.

Rather,

we respectfully dissent from

that decision, which strikes conditions

6 through

9

as not being

necessary for the proper closure of the waste pile at issue in this

appeal.

While undoubtedly well-intentioned,

the decision of our

colleagues has the effect of allowing PermaTreat to close its waste

pile without determining whether the closure is

in fact

“clean”

pursuant to the Board’s RCRA closure regulations at 35 Ill. Adm.

Code Part 725.’ Indeed,

the majority decision allows PermaTreat to

finalize closure without conducting the very inspections necessary

to determine whether that closure complies with the Board’s own

closure

performance

standards,

specifically,

the

closure

requirements for waste piles at Subpart G and L.

We believe that at the root of our colleagues’ decision is an

underlying

belief the waste pile

is not subject to RCRA.

They

believe

the

waste

pile

is

an

integral

part

of

PermaTreat’s

manufacturing process and,

as such,

is exempt from the RCRA clean—

closure requirements.

Nevertheless,

the majority examines

the

necessity of

the

contested conditions

for proper

closure under

RCRA.

We believe their underlying concern about the applicability

of RCRA closure to the “pile”, however, affected their analysis of

The majority opinion and the briefs reference 35 Ill. Adm.

Code Part 725 as the applicable standards for closure of the “waste

pile.”

While there may be

an

issue as to the applicability of

Part

725 to Permatreat’s

facility rather than Part

724

of

our

regulations,

like the majority, we will refer to Part 725

since

there

is

no

practical

difference

between

the

language

and

requirements of the pertinent sections of the two parts and neither

party raised this question but instead relied upon Part 725.

(~

~,

R.

at 295.)

---

2

the contested conditions, and shaped, in part,

their determination

that conditions

6,

7,

8 and 9 have no relationship to the “closure”

of the waste pile.

We disagree.

Unlike the

majority,

we have no difficulty with concluding

the pile constituted a “waste pile” under RCRA.

The definition of

“pile” at Section 720.110

is:

“any non—contaminated accumulation

of solid, non—flowing hazardous waste that is used for treatment or

storage.”

Petitioner admits storing and treating hazardous waste

accumulated

in the subject pile.

The waste

stored and treated

there was subsequently put into barrels and manifested for off—site

disposal

as

a

hazardous waste.

Therefore,

the waste pile

is

subject

to

either

the

RCRA

permitting

or

the

RCRA

closure

regulations. This Petitioner chose closure..2

PerxnaTreat’s argument that the pile is not a RCRA waste pile

is gratuitous and self—serving since it is a RCRA closure plan for

the waste pile which brings the Petitioner to the Board

in this

proceeding.

It

is not this Board’s function to determine whether

the case was brought under the proper posture, but rather whether

the case is cognizable under that posture.

Therefore,

in this RCRA

appeal

our

duty

is

to

appropriately

apply

the

Environmental

Protection Act and the Board’s rules and regulations, and determine

whether there would be a violation of either the Act or the rules

if

the

closure plan

were

to

be

approved

absent

the

contested

violations.

As

for

the

argument

that

the

CCA

solution may

not

be

a

hazardous waste because it drained on the drip pad for return to

the wood treatment process,

any leaked CCA would be

a hazardous

waste.

Once leaked, the CCA solution is no longer exempt pursuant

to the

exemption

cited

by the

majority

at

Section

721.104(c)

because it has “exited” the manufacturing process unit.

Since the

waste

pile

is

subject

to

RCRA,

with

no

absolute

exemption

applicable to these facts,

Petitioner is obligated to comply with

the

RCRA

closure

regulations.

The

four

contested

conditions

require

Petitioner

to

perform

inspection

and

testing

for

the

purpose of demonstrating compliance.

While

the

majority

is

correct

in

its

recitation

of

the

standard to be applied by the Board in reviewing the closure permit

conditions

applied

by

the

Agency,

the majority

fails,

in

our

opinion,

to properly apply that standard.

The Board must decide

whether the Petitioner

(not the Agency) has proven there would be

no violations of the Environmental Protection Act if the requested

2

Permatreat elected to file

a

closure plan for the “waste

pile”

as

the

result

of

a

pre—enforcement

conference

with the

Illinois Environmental Protection Agency (“Agency”).

(R. at 295.)

---

3

permit, absent the contested conditions, had been issued.

Applied

to the case before

us,

the question we must answer

is whether

Petitioner has proven the closure plan, as submitted by PermaTreat,

would not violate the Act or the Board’s rules

if

issued without

the contested conditions.

Based upon the evidence before us, it is

our opinion PermaTreat failed to carry its burden of proof.

As

explained

in

more detail

below,

we

would

find that

the record

warrants the imposition of conditions

6 through

9.

Absent these

conditions,

the clean

closure requirements of

35

Iii. Adm.

Code

Part 725 would be violated.

Conditions

6 and 7

Condition

6 has two parts:

(1)

the concrete surface of the

drip

pad

must

be

steam-cleaned

and

triple—rinsed

under

the

supervision

of the Marion Office of the Agency

(R. at 419);

and

(2)

an independent registered professional engineer must inspect

the integrity of the concrete

surface

of

the drip pad and the

construction joints for cracks to determine whether migration of

the CCA solution and seepage onto the soil may have occurred.

~

at 420.)

After the instant appeal was filed, PermaTreat agreed to

perform the first part of condition 6 (steam cleaning), but opposed

the engineer’s “integrity” report

and the imposition of

condition

7

which

would

have,

in

the

event

of

a professional

engineer’s

report

finding an

integrity breach,

required soil testing.

We

disagree with the majority’s decision to allow the closure without

these two conditions.

As to PerinaTreat’s argument that inspecting the drip pad and

certifying

it

is

free

of cracks

or defects

is unrelated to the

waste pile operation, we would find that in order for the Agency to

verify

the clean

closure standards are

met,

such

inspection

is

warranted.

Section 725.358,

Closure and Post—Closure Care

(for

Waste Piles), provides in pertinent part:

At

closure,

the

owner

or

operator

must

remove

and

decontaminate

all

waste

residues,

contaminated containment

system

components...,

contaminated

subsoils

and

equipment

contaminated

with

waste

and

leachate,

and

manage

them

as

hazardous waste

Petitioner did remove the waste pile itself and the contaminated

mesh screen

(R. at 315—324)

and handled both as a hazardous waste

in accordance with Section

725.358.

Petitioner’s obligation to

comply with the remainder of Section 725.358

is the issue before

us.

The

contested

conditions

address

waste

residues

and

contaminated subsoils.

At this time,

the Agency

is not requiring

that Petitioner remove contaminated containment system components,

e.g. the drip pad.

Condition 6 only requires Petitioner to inspect

the

containment

system

components

to determine

whether

further

contamination could have occurred, and if so, to what extent.

Once

that determination

is made,

Petitioner and the Agency will know

---

4

what further steps may be

necessary to

achieve full compliance

with Section 725.358.

Much of the argument in the record is whether a crack existed

at the time of the 1991 inspection.

That argument is irrelevant.

The contested portion of condition

6 only requires petitioner to

look

for cracks or evidence of impermeability under the specific

portion of the drip pad

(an

18’ x 18’

area) upon which the waste

pile accumulated.

Furthermore, since the area was covered during

the

1991 inspection by the waste

pile,

the actual evidence of

a

crack could not even have been determined at the time the Agency

imposed this contested condition.3

Thus, we fail to understand the

majority’s rationale that conditions

6 and 7 are not supported by

the record on the basis the Agency failed to prove the existence of

a

crack

stemming

from

the

1991

inspection.

We

believe

ascertaining

the

integrity

of

the

drip

pad was

an appropriate

endeavor

in and of

itself

and moreover,

because the waste

pile

materials covered the subject area,

it would have been impossible

for the Agency

to

clearly determine

the presence

of

any crack

without such an inspection.

The parties

argue

about whether the area near the pad was

contaminated by CCA dripped from the waste pile or from treated

lumber.

These

arguments aside,

the

inspection photos

from the

Agency’s

1991 inspection,

in our opinion, reveal staining on the

edge of the drip pad and on the soil near the waste pile.

(R.

at

187,

photo #5;

R.

at 186, photos

##3 and 4.)

RCRA requires that

the Agency determine whether this drainage or seepage originated

from

cracks in the concrete.

(35 Ill. Adm. Code 725.353(a) (1) ;a

waste pile should be on

an impermeable base.)

These inspection

photographs raise the possibility the liquid drained through the

concrete pad and seeped from the walls themselves,

i.e. the pad’s

integrity was

breached.

Therefore, the integrity of the drip pad

needs to be ascertained not

only to determine whether there has

been sub—soil contamination, but also whether soil near the waste

pile was contaminated with CCA originating from the waste pile.

Moreover, the inspection photos from 1991 demonstrate there was no

berm around the waste pile area at the time of that inspection.

We note Petitioner waited to appeal the requirements that

it inspect the drip pad for impermeability and the surrounding soil

for possible contamination until five months after the conditions

were imposed by the Agency.

According to the record,

the Agency

conditioned

approval

of

the

second

Closure

Plan

submitted

by

Petitioner

(approval

of the first having been denied)

with the

contested

conditions

on December

11,

1992.

(R.

at

366

—

375.)

Petitioner did not then contest those conditions; not until May 13,

1993 did Petitioner

seek to have the conditions deleted by the

Agency.

---

5

Furthermore,

Petitioner also

admits

washing

down

the

drip pad

routinely.

This

wastewater

or

other

water

combined

with

the

dripped CCA,

or the dripped CCA solution alone, could have easily

gone over the side of the pad when there was no containment berm

present,

the slope

of the pad towards the

sump not necessarily

being sufficient to contain it.

Our RCRA regulations provide other specific requirements for

the proper

operation

of

a

waste

pile:

wind dispersal should be

controlled

(35

Ill.

Adm.

Code 725.351);

the waste pile must be

protected against run—on and run—off of water

(35 Ill. Adm. Code

725.353

(a)(2),

725.353(a) (3)

and 725.353(a) (4));

and there is

a

general prohibition on the wastes containing free liquids

(35 Ill.

Adm.

Code

725.353(b) (2)).

We

find

the

evidence

shows

these

regulations were not consistently satisfied when the waste pile was

operated.

Therefore,

there

are

sufficient

facts

in the record

demonstrating the CCA solution drained from the waste pile onto the

drip pad and based upon the staining evidenced in the inspection

photographs,

most

likely

off

of

the

drip

pad

and

onto

the

surrounding soil.

The waste pile sat on a mesh screen and pallets

for the purpose of draining liquids.

(R. at 322.)

In 1991, there

was no berm around the waste pile to prevent run—off.

The record

also contains

no

information regarding what,

if

any,

steps

the

petitioner

took

to

control

wind

dispersal.

The

Agency

also

testified one of the pallets on which the waste pile was to have

rested was located off of the concrete edge.

(Tr. at 70-E.)

Given

these Agency site inspection observations, the Petitioner did not

present

sufficient

proof

to

satisfy

its

burden

that

the

soil

staining did not originate from the waste pile.

On the issue

of whether the waste pile was “moist” or “dry”

or,

whether it contained free-flowing liquids, PermaTreat argued

that on the “day of inspection” the waste pile was dry.

(P.Br. at

9.)

We find this fact unpersuasive as to whether the waste pile

contributed to contamination on the site.

It

is an uncontested

fact the waste pile was placed on a mesh screen for the specific

purpose of accommodating drippage from the waste pile.

In fact,

the Petitioner admits the waste pile was placed at the top of the

drip pad for the specific purpose of recapturing the liquid in its

process

(P.Br.

at 9).

Collectively,

these

facts

are

sufficient

to

support

the

Agency’s

concern

that

minimal

inspection

and

testing

for

contamination originating

from the waste pile be done as part of

the waste pile’s closure under RCRA

.

Accordingly, imposition

of

conditions

6 and 7 are necessary to insure no violation of the RCRA

clean closure requirements.

---

6

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

“no

soil

contamination

is present in the area surrounding the former 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.)

For the reasons below

(as well

as those discussed above in support of conditions 6 and 7), we find

the testing requirements contained in conditions

8 and

9 proper.

We disagree with PermaTreat’s argument and thus, the majority

opinion, that conditions

8 and

9 should be stricken as unsupported

by the record.

PermaTreat argues the slope

of drip pad would

prevent seepage from flowing from the drip onto the soil obviating

soil testing on the east and south sides of the drip pad.

However,

the 1991 inspection photographs show drainage or seepage off of the

northeast portion of the drip pad from the area of the waste pile

(R.

at 187, photo #5)

and from the

south

(I~

at

186, photo #3)

and southwest

~

photo #4).

Also,

the Agency’s permit writer,

William Sinnott, testified as to his observations of “liquid” on

the dirt about

a yard from the east side of the drip pad

(Tr. at

60-64) and ponding of liquid on the south side of the drip pad (Tr.

at

70-E

-

70-F).

We

are

also persuaded by the total

lack of

evidence in the record concerning PermaTreat’s efforts

to control

wind

dispersal.

This

lack

of

evidence

raises

the

distinct

possibility

that

hazardous

waste

could

have

blown

onto

the

surrounding soil.

The general purpose of the RCRA closure plan

is that after

completion of the clean up, the site is to be free of contaminants;

if it

is not,

or cannot be made so,

the operator

is required to

provide

post-closure

care.

(Section

725.358.)

This

evidence

supports a finding the area around the former waste pile may have

been contaminated due to its operation.

(That is not to say

it

might

not

also

have

been

contaminated

by

the

manufacturing

process).

To

determine whether

contamination

exists,

and the

extent of that contamination,

conditions

8 and

9

are necessary.

Without

the

application

of

these

conditions,

there

can

be

no

determination

as

to whether

PermaTreat’s

actions

to date

have

brought about clean—closure or whether further decontamination of

the area around

the former waste pile

is required and/or, post—

closure care is required pursuant to Section 725.358. Therefore, we

would find conditions

8 and

9 are necessary and must be satisfied

in

order

for

Petitioner

to

comply

with

the

applicable

RCRA

regulations.

CONCLUSION

In sum, we would conclude the RCRA closure regulations apply

to this waste pile,

and Petitioner has the burden of proving

its

Closure

Plan would

not

allow

for violations

of the Act and the

---

7

corresponding regulations

absent

the contested

conditions.

We

would find Petitioner failed to prove contamination from the waste

pile did not occur, and does not now exist.

Conditions

6 through

9,

as written by the Agency,

are necessary to determine whether

such contamination exists, and if so to what extent,

so that clean

closure

can

be

verified,

or

post—closure

care

implemented

as

necessary.

Without

conditions

6

through

9,

Petitioner

cannot

demonstrate clean closure of its waste pile as required by the our

RCRA regulations.

Therefore, Petitioner has failed to prove there

would be no violation of the Act absent the contested conditions.

For these reasons, we respectfully dissent.

4

// ~

~

((~

~

Claire

A. Manning

7’j

Chairman

(

1

~

)2k

Marili McFawn

Board

Member

I,

Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby

certify

that

above

dissenting

opinion

was

submitted on the

7~

day ~

,

1994.

‘lDorothy M.

9g~’in, Clerk

Illinois Porli!ttion Control Board