ILLINOIS POLLUTION CONTROL BOARD
August 11,
1994
LONE STAR INDUSTRIES,
INC.,
)
Petitioner,
v.
)
PCB 92—134
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
SUPPLEMENTAL OPINION
AND
ORDER OF THE BOARD
(by C.
A. Manning):
This matter
is before the Board on petitioner’s May 18,
1994
motion for relief from final order pursuant to 35 Ill. Adm. Code
101.301(b)(1).
Lone Star Industries,
Inc.
(Lone Star)
is
requesting that the Board modify its May 20,
1993 opinion and
order in this matter, which granted Lone Star a variance from
certain landfill regulations but with conditions.
Lone Star is
requesting that the Board modify one of these conditions and make
an affirmative declaration that the requirement of 35 Ill.
Adm.
Code 811.320(d) does not apply to its facility.
On June
7,
1994,
the Illinois Environmental Protection Agency
(Agency)
filed its
response to this motion and ‘on June 15,
1994, Lone Star filed a
reply to the Agency’s response.’
BACKGROUND
The facts of the underlying variance issuance can be found
in the Board’s May 20,
1993 opinion and order and are
incorporated by reference
in this matter.
Based on the record
before the Board at the time of the variance request, the Board
found that Lone Star had presented adequate proof that immediate
compliance with 35
Ill. Adm. Code Subtitle G sections 814.302(a),
811.313, 814.302(b)(1), 811.103(b),
811.314, 811.320(d),
811.317,
815.202(a),
815.203(b),
812.316 and 811.110(d) would impose an
arbitrary or unreasonable hardship on Lone Star.
The Board
granted the requested variance subject to certain conditions.
Lone Star is requesting that the Board modify its order
pertaining to Condition D which states:
D.
For the first quarter of sampling only.
Lone Star
shall conduct a broad volatile organic scan on samples
of leachate removed from leachate wells NW—i, NW—2 and
‘The motion for relief will be referred to as “Mot. at.”
2
NW-3.
Any parameter detected in this scan shall be
added to the routine quarterly groundwater sampling
list as well as any transformation or degradation
products that could be derived from these constituents.
Specifically, Lone Star requests that Condition D be replaced
with the following provision to require monitoring for organics
in accordance with 35 Ill. Adm. Code 811.319(a).:
Any organic compounds found at concentrations in excess of
any Class
I groundwater standard in at least two samples
from the same well will be included in the quarterly
monitoring parameter list for all 16 wells.
Lone Star believes that Condition D “entails an unwarranted cost
burden that may not have been intended by the Board.”
(Mot.at 2.)
Lone Star has performed the required monitoring and has only
detected a total of four
(4) volatile organic chemicals (VOC5).
Only one
(1) detected VOC, toluene, has a Class
I groundwater
quality standard (GQS).
The GQS for toluene
is 1000 ug/l and the
reported level of toluene was
8 ugh
and 14 ugh.
The other
three
(3) VOC5 detected,
acetone,
1,l-dichloroethane, and 2-
butanone, do not have established GQS.
Lone Star states that
Condition D would require the quarterly monitoring of these VOC5
and their degradation products, would cause an economic burden
without reason.
(Not. at 5.)
Lone Star argues that there
is no
justification for the requirement because the measured
concentrations are below the concentrations allowed by 35
Ill.
Adm. Code 811.317(b)
and 811.318(c)
at the edge of the zone of
attenuation.
(Mot.
at 5.)
2
In addition,
Lone Star requests that the Board make the
determination that paragraph
5 of the Nay 20,
1993 order,
the
requirement of setting background concentrations pursuant to 35
2The Lone Star argues that there
is no justification for the
requirement for monitoring (as required in the condition D) because
the measured concentrations are below the concentrations allowed by
35 Ill.
Adin. Code 811.317(b) and 811.318(c)
at the edge of the zone
of
attenuation.
It would
appear that Lone Star
is
in
error
in
drawing
this
conclusion.
Section
811.317(b)
and
811.318(c)
requires prediction of the concentration by Groundwater Contaminant
Transport
(GCT)
model.
Lone
Star
has
not
calculated
any
such
numbers
and
therefore
the
measured
concentrations
cannot
be
compared to concentrations allowed
in the subsections 811.317(b)
and 811.318(c).
However,
the detected levels of toluene are well
below the GQS for that constituent.
3
Ill.
Adm. Code 811.320(d), does not apply to its site.3
Lone
Star argues that due to the “unique geology and hydrogeology of
its landfill and the immediately surrounding area” the concept of
developing background concentrations as required in Section
811.320(d)
“.
.
.is inappropriate for its site and serves no useful
purpose.”
(Not. at 7.)
Lone Star states that it cannot develop
the background concentration because the procedures spelled out
in Section 811.320(d)
cannot be followed due to its site geology.
(Not.
at 9.)
Secondly, Lone Star states that the thick layers of
impermeable limestone and shale cause precipitation that migrated
through the landfill to move horizontally until discharged away
from the usable groundwater resource to surface water.
(Mot at
9.)
Finally, Lone Star states that since Sections 811-815 were
promulgated by the Board before the development of GQS, that the
GQS provide the appropriate standards that apply to its site
outside the zone of attenuation.
(Mot. at 9-10.)
DISCUSSION
In its response filed on June 7,
1994, the Agency agrees
with Lone Star that the quarterly monitoring for the four
detected volatile organic compounds, namely acetone,
1,1—
dichloroethane,
2—butanone and toluene and their degradation
products, would cause a substantial economic burden.
The Agency
suggests that Condition D be modified to require Lone Star to
monitor all sixteen
(16) of the wells in question once every two
(2)
years.
The Agency states that the offered language by Lone
Star is acceptable.
However, the Agency requests that an
additional provision be included to clearly signify that Lone
Star is still subject to the confirmation of monitored increase
procedures and the assessment monitoring requirements if an
increase is confirmed.
(35 Ill. Adm. Code 811.319(a) (4) (B) and
35
Ill.
Adm. Code 811.319(b).)
Lone Star’s Reply filed with the
Board on June 15,
1994 did not address the Agency’s request for
this additional provision.
The Board agrees that Condition D can be modified as stated
by Lone Star to lessen the expense while still being protective
of the environment and human health.
However, we believe that
the additional provision requested by the Agency should be
included in the modified Condition D.
The Board will replace
~ Paragraph
5 of the May 20,
1993 order reads as follows:
5.
Section 811.320(d)- Requirement for setting background
concentrations for groundwater extended to May 20,
1995
or
120
days after
final
Board
action
on
an adjusted
standard petition or rule change, or determination by the
Board that the requirement is non—applicable, whichever
is earlier.
4
Condition D of the May 20,
1993 in this order as follows:
Any organic compounds found at concentrations in excess of
any Class
I groundwater standard in at least two samples
from the same well will be included in the quarterly
monitoring parameter list for all
16 wells.
In addition,
the requirements of
35 Iii.
Adm. Code 811. 319 (a) (4) (B) and
811.319(b)
apply to these monitoring wells.
The Agency argues that the second request for modification
made by Lone Star, that the Board find 35 Ill. Adm. Code 811.320
inapplicable to its site,
is premature and better suited for an
adjusted standard proceeding or site-specific regulation.
The
Agency’s main contention is that there is not yet sufficient
information to determine
if the requirements of 35
Ill.
Adm. Code
811.320(d)
are “impossible and pointless.”
Lone Star request is for permanent relief from the
requirements of
35 Ill. Adm. Code 811.320 via a motion to modify
the Board’s variance order of May 20,
1993.
The Board agrees
with the Agency that the request for permanent relief
is
inappropriate in this context.
The very nature of the relief
pursuant to a variance proceeding set forth in Section 35 of the
Act is temporary.
The Board accordingly denies this portion of
the motion to modify. However,
the Board is not making a finding
on the merits of the request.
Lone Star may petition the Board
for the requested relief pursuant to an adjusted standard or a
site-specific rule proceeding.
CONCLUSION
The Board finds that Lone Star has presented justification
for the Board to modify its order dated May 20,
1993 as to
Condition D of the that order.
However, we find that the request
for permanent relief from 35 Ill. Adm. Code 811.320(d)
is
inappropriate in this proceeding.
For the convenience of the
parties, the text of the May 20,
1993 order as modified today is
set forth in its entirety below.
This supplemental opinion constitutes the Board’s
supplemental findings of fact and conclusions of law in this
matter.
ORDER
Lone Star Industries (Lone Star)
is hereby granted a
variance for its cement manufacturing facility located in
Oglesby,
Illinois from the following provisions for the following
periods:
1.
Sections 814.302(a)
and 811.313
-
Minimum of one foot
cover within 60 days of waste placement extended to
5
December 31,
1992.
2.
Section 814.302(b)(1)—
Installation of a leachate
management system extended to December 31,
1994.
3.
Section 811.301(b)
—
Diversion of runoff from
undisturbed areas extended to December 31,
1992.
4.
Section 811.314
-
Installation of
a final cover system
that meets all stated design standards extended to May
20,
1995 or one year after final Board action on an
adjusted standard petition or rule change,
or
determination by the Board that the proposed final
cover system meets the requirements of the existing
rule, whichever is earlier.
5.
Section 811.320(d)
-
Requirement for setting background
concentrations for groundwater extended to May 20,
1995
or 120 days after final Board action on an adjusted
standard petition or rule change, or determination by
the Board that the requirement is non-applicable,
whichever is earlier.
6.
Sections 811.317,
815.202(a),
815.203(b)
and 812.316—
Completion of groundwater impact assessment and
submittal as part of Initial Facility Report extended
to December 31,
1994.
7.
Sections 815.202(a),
815.203(b)
and 811.110(d)—
Completion and submittal of a written Closure Plan as
part of an Initial Facility Report extended to May 20,
1995 or 120 days after final Board action on an
adjusted standard petition or rule change modifying the
applicable requirements for the final cover system,
whichever is earlier.
8.
Section 811.309(c) (4)-
Basins will be constructed with
liners to control seepage to groundwater extended to
May 20,
1995 or 180 days after Board action on an
adjusted standard petition or rule change,
or
determination by the Board that the requirement is
non—applicable, whichever is earlier.
The variance is granted subject to the following conditions:
A.
The minimum one foot of cover shall conform to the
requirement specified
in 35 Ill.
Adm. Code 807.305(b).
B.
The pit shall be completely de-watered by March
31,
1994 and shall be so maintained throughout the
term of this variance.
Lone Star shall apply for
and receive
a
permit by December
31,
1993,
from
6
the Agency’s Bureau of Water,
Permit Section, to
discharge waste waters collected from the western
pit to a treatment facility,
if needed to
completely de-water the pit by March 31,
1994.
Additionally, the treatment facility shall apply
for and receive a supplemental permit from the
Agency’s Bureau of Land, Permit Section.
C.
Sodium and the Field Parameters listed below shall be
added to the quarterly groundwater sampling list.
—
Bottom of well elevation (feet reference mean sea
level)
to be reported annually.
—
Depth to water
(feet below surface).
-
Depth to water
(feet from measuring point).
—
Elevation of groundwater surface
(feet reference
mean sea level).
D.
Any organic compounds found at concentrations in excess
of any Class
I groundwater standard in at least two
samples from the same well will be included in the
quarterly monitoring parameter list for all
16 wells.
In addition, the requirements of
35 Ill.
Adin.
Code
811.319(a) (4) (B) and 811.319(b)
apply to these
monitoring wells.
E.
Within forty—’five
(45) days of the date of the
Board’s order, Lone Star shall submit the
following Certification of Acceptance to:
Illinois Environmental Protection Agency
James
G. Richardson
Division of Legal Council
2200 Churchill Road
P.O. Box 19276
Springfield, IL
62794—9276
The 45-day period will be held in abeyance during any period
that this matter
is being appealed.
Failure to execute and
forward this certificate within 45 days shall render the variance
null and void.
The form of the Certificate shall be as follows:
CERTIFICATION
I,
(We),
,
having
read and fully understanding the order
in PCB 92-134, dated May
20,
1993 as modified August
11,
1994,
hereby accept that order
and agree to be bound by all of its terms and conditions.
Petitioner
7
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(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 suppi mental opinion and
order was adopted on the
/T~~-~
day of __________________________
1994, by a vote of
~‘C.
//
/
Dorothy ~
ClerJ~
Illinois Po)t9.ution Control Board