ILLINOIS POLLUTION CONTROL BOARD
January 11, 1990
TESTOR CORPORATION,
Petitioner,
v.
)
PCB 88—191
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on three motions. On December
7, 1989, petitioner Testor Corporation filed its motion for
reconsideration and clarification of the Board’s November 2, 1989
decision in this case. Respondent Illinois Environmental
Protection Agency (Agency) filed its response to Testor’s motion
on December 20, 1989. The Agency filed its own motion for
reconsideration on December 8, 1989. Testor responded to the
Agency’s motion on December 18, 1989. On December 28, 1989, Testor
filed a motion to supplement its motion for reconsideration. The
Agency responded to that motion to supplement on January 4, 1990.
In its motion, Testor first asks that the Board clarify its
affirmance of Condition 1 of the Agency’s approval of Testor’s
closure plan. Condition 1 required Testor to complete all of its
closure activities by June 1, 1989, and to provide the Agency with
certification of closure within 60 days of closure. That
condition, based on 35 Ill.Adm.Code 725.213, gave Testor
approximately six months to complete closure. The Board upheld
that condition, but noted that Testor could still request an
extension of the deadline pursuant to 35 Ill.Adm.Code 725.213(b)
and (c)
.
Testor states that it reads the Board’s decision as
intending to affirm the time periods set forth in the closure plan,
not the particular dates imposed by the Agency’s approval. Testor
notes that if the Board’s Order was read to affirm the specific
dates, those dates would have passed and Testor could not request
an extension of time. Therefore, Testor asks that the Board
clarify that it meant to affirm the time periods of Condition 1 and
not the specific dates. The Agency did not address this point in
its response to Testor’s motion.
The Board did intend to affirm the six month time period
allowed for closure pursuant to Section 725.213, and not the
specific dates set forth in Condition 1. The June 1, 1989
deadline
for closure passed while this appeal was pending before trie Board.
Because Section 725.213(c) requires any request for extension
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the closure period to be made at least 30 days before expiration
of that period, Testor would not be able to request an extension
of the deadline if the particular dates of Condition 1 were upheld.
That would, in effect, punish Testor for exercising its right to
appeal the conditions imposed on its closure plan. The Board
hereby clarifies its November 2 decision to hold that the time
periods for closure specified in Condition 1 are upheld. The Board
did not uphold the specific dates of Condition 1. Testor’s request
for clarification is granted.
Testor then asks the Board to reconsider its finding that
Testor is subject to the Part 725
RCRA
closure rules. Testor
states that if it is found to be subject to the RCRA rules, it is
subject to potential enforcement for many permitting, design, and
operating rules pursuant to Part 725. Testor contends that it has
proceeded in accordance with the Part 725 rules for purposes of
remediation of this situation only, and only because the Agency was
unwilling to proceed in any other context. Testor maintains that
it in effect consented to the applicability of Sections 725.210
through 725.215 and Section 725.328 in this proceeding. Testor
argues that the Board’s November 2 decision goes beyond this
acquiescence. Testor contends that the Board could properly limit
its ruling on the applicability of the RCRA rules to Testor’s
acceptance of those rules for purposes of closure in this
proceeding, without setting a “potentially far—reaching precedent
of
RCRA
coverage.”
In response, the Agency contends that the Board was correct
in determining that the depression at issue in this case is indeed
a “surface impoundment’, and correct in finding that the Part 725
rules apply to Testor. The Agency maintains that Testor, the
Agency, or this Board cannot selectively apply some regulations
from Part 725 and not others. In other words, the Agency argues
that since Testor is properly regulated by Part 725, it (Testor)
is subject to all the Part 725 rules, and not just the rules
governing closure. Thus, the Agency asks that the Board deny
Testor’s request for reconsideration of the applicability of Part
725.
The Board is not persuaded by Testor’s claim that the Board
should apply only selected parts of the Part 725 RCRA rules to the
Testor facility based upon Testor’s agreement to utilize those
rules for this closure. In its November 2 decision the Board
clearly found that Testor was subject to the Part 725 rules. That
finding was based upon an analysis of the regulations, not upon
Testor’s consent to the applicability of some of the Part 725
rules. Testor does not argue that the Board’s analysis was
incorrect: instead, Testor contends that the Board should proceed
with the Part 725 rules based only on its consent so that it
(Testor) will not be subject to potential enforcement pursuant to
Part 725. The Board finds that its analysis of the applicability
of Part 725 to Testor is correct. However, the Board stresses that
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3
its analysis was based only upon the situation before it in this
case: whether Testor is subject to the Part 725 rules for purposes
of closure. The question of whether Testor is subject to the
permitting, design, operation, and other rules in Part 725 has
never been before this Board, and the Board will not now address
that question. To any degree that the Board’s November 2 decision
may be construed as deciding that all of the Part 725 rules are
applicable to Testor, the Board clarifies that its holding was
limited to the applicability of Part 725 closure rules. The Board
takes no position on any other question of the applicability of
Part 725. Testor’s motion for reconsideration is granted in part,
only to allow the Board to clarify its prior holding.
On December 28, 1989 Testor filed a motion to supplement its
motion for reconsideration. Testor asks to file a copy of a pre-
enforcement conference letter from the Agency, received by Testor
on December 27. That letter informs Testor of several alleged
violations of the rules of Part 725, and sets up a pre—enforcement
conference between the Agency and Testor. Testor asks th;~tthis
letter be filed because it “underscores the significance of the
Board’s determination regarding the applicability of the RCRA rules
to the depression at Testor’s facility and demonstrates that the
potential for enforcement referred to in Testor’s Motion for
Reconsideration and Clarification has now become a serious threat
of enforcement.”
On January 4, 1990, the Agency filed its response in
opposition to Testor’s motion to supplement. The Agency argues
that the motion should be denied because it was not filed within
35 days of the adoption of the November 2 order, pursuant to 35
Ill.Adm.Code 101.246. Second, the Agency contends that Testor’s
December 7 motion for reconsideration and clarification adequately
set forth Testor’s position and that the material in the motion to
supplement is not required to explain Testor’s position. Finally,
the Agency maintains that potential enforcement action is not
relevant to the Board’s decision—making in this appeal.
The motion to supplement Testor’s motion for reconsideration
is denied. The Board agrees with the Agency that the question of
whether enforcement is occurring has no relevance to the
determination of whether the Part 725 rules are applicable to
Testor. The issue here is whether the Board should reconsider and
reverse its November 2 determination that the Part 725 rules do
indeed apply to Testor. The pre—enforcement letter sent to Testor
by the Agency is not relevant to that issue. The Board also points
out that reconsideration must be based upon the record before the
Board when it reached its decision, and the pre—enforcement letter
is not part of that record. Therefore, Testor’s motion to
supplement is denied.
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4
The Agency also filed a motion for reconsideration.1 The
Agency first asks the Board to reconsider its decision that Testor
is not required as a matter of law to perform groundwater
monitoring. The Agency contends that the Board erred in finding
that after completing the closure, Testor will be required to
either obtain a post—closure care permit or demonstrate
equivalency, and that therefore groundwater would be considered
again. The Agency asserts that groundwater may not be further
considered, and bases that claim upon an analysis of “conforming”
changes in the Board’s regulations, effective January 15, 1988
(before Testor’s proposed plan was filed). The Agency continues
to maintain that federal law and guidance require groundwater
monitoring at the Testor facility. Second, the Agency asks that
the Board clarify its statement that “Section 722.134, which
contains the 90—day permit exemption, applies only to generators,
not to owners and operators of TSD facilities.” The Agency asks
the Board to clarify whether that exemption applies at a facility
which is both a TSD and a generator.
In response, Testor maintains that the Board correctly
concluded that Testor is not required as a matter of law to monitor
the groundwater. Testor contends that the Agency is incorrect in
stating that the groundwater issue will not be considered again,
because it (Testor) must satisfy the Agency that the data submitted
in its closure documentation report pursuant to Condition 1 of the
plan demonstrates that the groundwater could not have been
impacted. Testor states that the federal laws and guidance cited
by the Agency merely require a demonstration that groundwater has
not been affected, not that groundwater monitoring occur. Testor
argues that monitoring is not the only way to demonstrate that the
groundwater has not been affected. Finally, Testor states that the
issue of the applicability of Section 722.134 to generators who are
also owners and operators of TSD facilities has no effect upon it,
because Testor will provide for prompt removal of the waste as it
is excavated.
The Board must first point out that the Agency never before
raised its claim that changes in the Board’s regulations mean that
groundwater will not be further considered, and has not explained
why it did not do so at hearing or in post-hearing briefs. After
reviewing the arguments and the regulations, the Board agrees with
Testor that the Agency will have the opportunity to review the
impact of this facility upon the groundwater when Testor submits
its required closure documentation report. The Board also agrees
The Board notes that the Agency stated that its motion was
filed pursuant to 35 Ill.Adm.Code 103.240. That section of the
Board’s procedural rules deals with enforcement cases, not permit
appeals. The Board will consider the motion under 35 I11.Adm.Code
101.246, which is applicable to all types of proceedings before the
Board.
I 07—22
5
with Testor’s contention that the federal law and guidance cited
by the Agency require consideration of groundwater, but not
necessarily groundwater monitoring. In its November 2 decision in
this case, the Board held only that Testor’s application
demonstrated that neither the Act nor the regulations would be
violated if the plan approval was issued without the conditions
requiring groundwater monitoring. The Board stressed that its
finding was based upon Testor’s soil sampling plan, and Testor’s
promise to perform groundwater monitoring if contaminants are
discovered. In other words, the Board finds that consideration of
groundwater is an important issue in closing a facility, but that
that consideration does not necessarily require groundwater
monitoring. As for the Agency’s request that the Board answer its
question as to whether the Section 722.134 exemption applies to
facilities which are both generators and owners and operators of
a TSD, the Board will not do so in this proceeding. The issue is
not squarely raised, and it certainly has not been argued by the
parties. The Board will not issue an advisory opinion on the
question. The Agency’s motion for reconsideration is denied.
In sum, Testor’s motion for clarification of the Board’s
findings on Condition 1 is granted, and Testor’s motion for
reconsideration of the findings on the applicability of Part 725
is granted only for purposes of clarification of the Board’s
November 2 decision. Testor’s motion to supplement its motion for
reconsideration is denied. Finally, the Agency’s motion for
reconsideration is also denied.
IT IS SO ORDERED.
R. Flemal and B. Forcade dissented.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Contro~_.
Board, her y certify that the above Order was adopted on the
//~/-‘
day of
________________,
1990, by a vote of
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.
//
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Dorothy N. Gtmnn, Clerk
Illinois Po~L1utionControl Board
107—23