ILLINOIS POLLUTION CONTROL BOARD

April 30,

1987

IN THE MATTER OF:

)

PETITION OF GIFFORD—HILL

)

R84—45

AMERICAN LOCK JOINT, INC.

FOR SITE SPECIFIC RELIEF

)

FROM 35

ILL. ADM. CODE

807.305

PROPOSED RULE.

SECOND NOTICE.

PROPOSED OPINION AND ORDER OF THE BOARD

(by J. Anderson):

This matter comes before the Board on the December 20, 1984

petition of Gifford—Hill American Lock Joint,

Inc

(GHA)

for site

specific relief from the daily,

intermediate, and final cover

requirements of 35 Ill. Adm. Code 807.305 (a,b,c)

for its

disposal of concrete wastes at its South Beloit, Winnebago

County, reinforced concrete pipe manufacturing facility.

Hearing

was held on April

23,

1985, at which GHA presented testimony and

exhibits,

as well as an amendment

to

its request.

No members of

the public have participated

in or made comments concerning this

proceeding.

The Illinois Environmental Protection Act (Agency)

filed comments

in support of GHA’s request on July

5 and August

13,

1985; GHA’S

final comments were filed August

20,

1985.

In

letters of June 13 and July 2,

1985,

the Department of Energy and

Natural Resources made its determination that an Economic Impact

Study concerning this proposal was unnecessary on the basis that:

“The

net

economic

impact

of

the

regulation

is

favorable and

the costs

of compliance are small or

are

borne

entirely

by

the

proponent

of

the

regulation.”

Consequently, no economic hearings have been held.

The Board adopted and authorized first notice publication of

these

rules by its proposed Opinion and Order

of October 24,

1985.

The Agency filed

a comment concerning this proposal on

November

8,

1985.

Due to administrative error, the first notice

publication did not appear

in the Illinois Register until March

13,

1987 at

11

Ill.

Reg.

4215.

The only comment received

thereafter was that of the Administrative Code Division of the

Secretary of State,

filed April 9,

1987.

77-412

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—2—

The GRA Operation

GHA operates

a plant involved

in the manufacture of

reinforced concrete pipe.

This facility, located

in Northern

Winnebago County, Illinois, spans

93 acres.

The facility employs

approximately 150 people.

In the course of a day, GHA uses approximately 120 tons of

sand,

90 tons of stone, and 45 tons of cement,

These materials

are mixed together with water

to make concrete, which

is then

placed

in steel molds and cured,

After curing, the molds are

removed leaving

a concrete pipe which is then used for water and

wastewater

transmission.

Upon completion of

a day’s production,

there remains

a

quantity of concrete

to be disposed of.

Daily amounts will vary

from

2

to

4 tons.

This

is a result from spillage, breakage and

waste.

The refuse to be placed

in the landfill

is concrete

waste, cull pipe and an occasional steel

rod embedded

in the

concrete.

The material is non—putrescible and non—biodegradable.

The cover

requirements of 35 Ill, Adm. Code 807,305 can be

briefly summarized as follows:

daily

—

6

inches, intermediate

—

12 inches,

final

—

2 feet.

Pursuant

to variances granted

to GHA

and its predecessor

Interpace Corporation (see PCB 75—495,

June

6,

1976; PCB 77—274,

December 20,

1977; PCB 79—206, December

13,

1979;

and PCB 83—125, December

29,

1983)

cover has been placed on

this material as follows:

daily

—

none, “intermediate”

—

1 foot

every

6 months,

final

—

2 feet at the end of every variance

period,

or

rougtüy 1—2 years.

In this petition for site specific

rule change

(filed

in response to a suggestion in the PCB 83—125

variance), GHA requests the following cover

requirements:

daily

—

none;

“intermediate”

—

6

inches per week;

final

—

2 feet on

final sloping

faces,

6 inches on flat surfaces used for

industrial purposes.

GHA proposes retention of other conditions

of the variance including limitation of the disposal area to one

acre,

and of the disposal height to that of the adjacent improved

terrain.

The concrete waste disposal area is a 25 acre track located

to the north of the plant;

since operations began on the site in

1952,

10 acres have been filled.

The life of

the remaining 15

acres of the disposal area

is anticipated to be

a minimum of 20

years

(R,

15,

39—40).

GHA’s nearest neighbor

to the north

is a

quarry operation,

to the south a manufacturing facility,

to the

east a closed landfill, to

the west the City of South Beloit,

The nearest residential dwellings are directly across the road

from the plant itself, or roughly one half mile to the south of

the landfill area.

During the past 10 years, disposal

of the waste concrete

without daily cover pursuant

to variance has neither produced

a

77-413

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—3—

noxious odor nor harbored rodents.

Quarterly tests of water

quality on wells on GHA’s property have shown no change and the

Winnebago Department of Public Health tests show the water

is

safe to drink

(Group Exh. 5).

The Agency has inspected this

facility nine times between 1978—1983 and found no environmental

problems resulting

from lack of daily cover during any of the

inspections

(Group Exh, 11).

The Agency has received no

complaints regarding operation of the site.

GHA asserts that continued “Waiver” of the daily cover

requirements results

in

a cost savings on the order of $1300—

$1600 per week

(R.47 and Exh.

2).

The further modification of

the intermediate cover requirements would

be estimated to save an

additional $44,400 per year and final cover requirements an

estimated $19,356 per year (Group

Exh.

10),

Concerning

final cover, GHA requests,

in essence, that six

inches of final cover comprised of “silty sand which provides

good structural support in conjunction with the landfilled

material” and which “minimizes vegetative cover’t be permitted on

the reclaimed flat

(top)

of the landfill area

in lieu of the

normally mandated two feet of suitable cover

(usually capable of

supporting beneficial vegetative cover).

GHA believes that this

sand

is preferable to conventional cover materials because it

deters vegetative growth.

This is desirable given GHA’s

continuing use of the finished flat top of the landfill area for

inventory storage, heavy equipment (see photographs, Group Exh.

12)

and, possibly,

the future site of additional production

buildings.

GHA agrees that

if and when such “industrial

uses”

cease,

the site will be restored to more of

a natural

state,

including two feet of cover capable of supporting vegetation,

GHA also agrees to provide two feet of cover capable of

supporting vegetation to provide erosion control on the final

(east)

slope of the landfill and any other “final sloping

faces,”

The Agency supports grant of the requested relief, noting

that the compactible nature of the principal waste material——

concrete rubble——limits the effect of lack of daily cover,

and

indeed, may be preferable

to other cover materials.

The only

material which potentially poses even

a de minimus threat of

water pollution is the steel reinforcing bars which have the

potential

to create leachate problems.

Although stating that

this

is an “unlikely prospect”, the Agency urges inclusion of a

provision in the rule requiring petitioner

to limit inclusion of

such wastes

in the landfill.

In this context, the Agency notes

that

the Industrial Materials Exchange Service,

operated by the

Illinois State Chamber of Commerce in cooperation with the

Agency, might be able

to find

a market for some of the wastes

landfilled.

77-414

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-.4--

The Proposed Rule

It

is the opinion of the Board that the site—specific relief

requested by GHA may be granted with minimum risk to the

environment; based upon the communications from DENR and the

other evidence

in the public hearing record,

the Board finds that

grant of the request will have no adverse economic impact on the

people of the State of Illinois.

The Board therefore adopted

for first notice a rule

substantially similar to that suggested by GHA and the Agency, as

outlined

in the attached Order,

Language revisions were

necessary to covert the looser language used

in the variances to

comport with requirements of the Joint Committee on

Administrative Rules.

In this context,

the Board notes that it

did not include the Agency’s suggestion that GHA be ordered

to

minimize disposal of metal—bearing waste “to the extent

practicable” due

to inability

to frame precise guidelines or

standards

for enforcement

for what is essentially

a variance—type

hortatory injunction.

Finally,

the Board did not adopt GHA’s

suggestion that the

rule provide that it need not provide an additional one and one—

half feet of final

cover

to the flat reclaimed area

in the event

of sale of the site to another industrial user who also would

prefer that the area continue without vegetative cover.

Varjance

and/or site—specific relief would be the more appropriate

mechanism in that case,

to allow for determination by the Board

of the similarity of the uses

to which the successor industry

would put the property and the resulting environmental

impact.

Response To First Notice Comments

The Administrative Code Unit’s April

9,

1987 comment

requested that minor format changes be made, which are reflected

in the rule as set forth below.

The Agency’s November 8,

1985 comments were that while

it

was generally supportive of the rule, that it was not aware of

precedent for “corporation—specific (as opposed to site—specific)

rules”, and queried whether such rules could

be offensive to the

constitutional prohibition against special legislation contained

in

Ill.

Const.,, Art.

IV, Section 13.

While

the Agency

is correct

that 35

Ill.

Adm, Code Part 800 does not contain “corporation—

specific” rules 35

Ill. Adm. Code Part 304, Subpart B contains

some eleven rules adopted since 1981 which establish “site—

specific” effluent standards for individual corporations and

sanitary districts,

Precedent for such

rules does exist, and the

legislature has specifically articulated its intention that rules

may be adopted specific

to individual

“persons” such as

corporations

as well as

to geographical areas or sites.

(See P,A.

84—1320, Section 30,

eff, Sept.

4,

1986, which amended Section

77-415

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—5--

28.1 of the Act to provide that the “Section shall

not be

construed

so as to affect or limit the authority of the Board to

adopt, amend

or repeal regulations specific

to individual

persons, geographic areas or

sites pursuant to Section 27 and

28

of

this Act, or so as to affect or

impair

the validity of any

such existing regulations”.)

As to the concern regarding special legislation,

the

Illinois Supreme Court has applied the same analysis to Board

regulations as to actions of the General Assembly.

In a case

rejecting a constitutional challenge which regulated equipment

used

in mining while identical equipment used

in construction

was

exempted, the Court expressed its view that:

The

legislature

may

create

legislative

classifications,

for

“perfect

uniformity

of

treatment

of

all

persons

is

neither

practical

nor

desirable.”

A classification must not, however, be

arbitrary,

and

it

must

be

based

on

a

rational

difference

of

condition

or

situation

existing

in

the

persons

or

objects

upon

which

the

classification

rests.

This was

also expressed by

this

court

in

People

ex

rel.

County of

Du

Page

v.

Smith,

21

Ill.2d

572,

578,

when

it

was

said:

“If

there

is

a

reasonable

basis

for

differentiating

between

the

class

to

which

the

law

is

applicable

and

the

class

to

which

it

is

not,

the

General

Assembly may constitutionally

classify persons

and

objects

for

the purpose

of legislative

regulation

or

control,

and

may

pass

laws

applicable only

to

such persons

or

objects.”

Also,

there

must

be

a

reasonable

basis

for

the classification

in view of

the objects and purposes

to be accomplished by the

statute.

Ill.

Coal

Operators

Assn.

v.

PCB,

59

Ill.2d 305,

319 N.E.2d

782,

____

(1974).

The Board believes that this record provides

a reasonable

basis

for modification of cover requirements for GHA.

The

unrefuted evidence

is that, while operating pursuant

to modified

cover requirements established by variance, the GHA has caused

none of the environmental :problems which the Act and the

implementing Board regulations were intended to prevent,

In

these circumstances,

to require GHA to expend substantial sums to

achieve full compliance with existing cover requirements

in the

interests of “perfect uniformity of all persons

is neither

practical nor desirable”.

To the extent that the Agency

is

concerned about “co—tenants and successor owners and operators of

the property”,

the Board believes that it

is rationale to

restrict the relief granted here to the petitioner which has

developed

the record before

the Board,

The Board questions the

legality of extending regulatory relief

to an unknown entity on

the mere speculation that their

future waste disposal operations

77-416

---

—6—

will

be handled as competently as GHA’s have been proven to be in

the past.

In short,

the Board does not find that the proposed

rule

requires modification

in response to the Agency’s comment,

ORDER

The Board hereby directs the Clerk to cause submittal of the

following

regulatory proposal

to the Joint Committee on

Administrative Rules:

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE G:

WASTE DISPOSAL

CHAPTER

I:

POLLUTION CONTROL BOARD

SUBCHAPTER

i:

SOLID WASTE AND SPECIAL WASTE HAULING

PART 807

SOLID WASTE

SUBPART G:

SITE SPECIFIC RULES

AND EXCEPTIONS NOT OF GENERAL

APPLICABILITY

Section 807.700

Gifford—Hill American Lock Joint,

Inc.

Concrete Waste Disposal Site

a)

The cover requirements of

35 Ill, Adm, Code

807305(a),(b)

and

(C)

shall not apply to

the on—site

disposal of concrete waste resulting

from the

manufacturing operations of Gifford—Hill American Lock

Joint,

Inc.

(GHA)

at its South Beloit, Winnebago County,

plant.

b)

Disposal activities shall meet the following

requirements:

1)

GHA shall limit waste disposal

to the types of

waste disposed of pursuant to variance granted

in

PCB 83—125: concrete waste, cull pipe,

and metal

reinforcing rods embedded

in concrete,

GHA shall

take all reasonable measures to minimize disposal

of such metals as waste

through use of recycling.

2)

GHA shall limit the exposed, active surface of its

disposal site

to a one acre area,

and the height of

the fill

in the active area

to that of adjacent

improved terrain.

3)

Once

a week, GHA shall

cover

the exposed, active

surface of its disposal site with

a compacted

layer

of at least

6 inches

of earthen material.

77-417

---

—7—

~jj

Within 60 days of cessation of disposal activities,

in any one acre area, GHA shall provide any final,

sloping faces of its disposal site with at least

two feet of final cover consisting

of compacted

earthen material capable of supporting vegetative

cover,

5)

Within 60 days of cessation of disposal activities,

GHA shall ~rovide any flat reclaimed area of its

disposal site which

is to be used for the storage

of pipe inventory and equipment, or which

is to be

occupied by buildings, with at least six inches of

final cover consisting of silty sand or similar

material.

However, within 60 days of cessation of

such uses, GHA shall provide at least an additional

18 inches of final cover material

as specified

in

subsection (b)(4)

above,

IT IS SO ORDERED.

I, Dorothy

M, Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Proposed Opinion and Order

was adopted on the ~3tl- day of

~

,

1987,

by a vote

of

________.

1

Dorothy M, 4’unn, Clerk

Illinois Pollution Control Board

77-418