ILLINOIS POLLUTION CONTROL BOARD

July 30, 1992

SHEREX CHEMICAL COMPANY, INC.,   

)

Petitioner,

v.

)

PCB 91—202

(Permit Appeal)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,         

)

Respondent.

ORDER OF THE BOARD (by N. Nardulli):

This matter is before the Board on Sherex Chemical Company,

Inc.’s (Sherex) motion for summary judgment filed June 5, 1992.

On June 24, 1992 the Illinois Environmental Protection Agency

(Agency) filed a motion to file its response and cross motion for

summary judgment instanter. The Agency’s motion to file

instanter is granted. On July 5, 1992, Sherex filed its response

to the Agency’s cross motion.

BACKGROUND

The facts are not in dispute. Sherex purchased its Mapleton

facility in 1979 from Ashland Chemical Company (Ashland).

Ashland purchased the property in 1967 from Archer—Daniels—

Midland Company (ADM). While ADM owned the property, it operated

a high pressure alcohol reactor (HPAreactor). ADM cleaned the

reactor with a nitric acid cleaning solution which contained

copper and cadmium. The cleaning solution was disposed of on—

site until 1975 or 1976, after which the solution was sent off—

site for disposal.

The HPA reactor on—site disposal area at the Mapleton

facility was added to Illinois’ State Remedial Action Priorities

List (SRAPL)1 and investigatory efforts were performed by Sherex.

Ashland, Sherex and the Agency agreed to jointly fund a Remedial

Investigation (RI) and also agreed to pursue costs from ADM. The

final RI was completed in May of 1988 at a cost of $300,000.

The RI concluded that the cleaning material had not shown

significant migration and recommended further monitoring and

installation of an additional well.

The Board notes that on June 25, 1992, the Illinois

Appellate Court, Fourth Judicial District, held that

the Agency’s regulations purporting to authorize the

SRAPL are void. (States Land Improvement Corp. 

IEPA

No. 4—91—0365, slip op. (June 25, 1992).)

0135-0131

2

In March, 1988, the Illinois Attorney General, at the

request of the Agency, filed a civil action against ADM for the

recovery of response costs. ADM filed a contribution action

against Ashland and Sherex and Ashland and Sherex filed

counterclaims. On January 7, 1991, the federal district court

entered a consent decree agreed to by ADM, Sherex, Ashland, the

State and the Agency governing past and future response costs.

On September 20, 1991, the Agen~yissued Sherex’s RCRA Part

B Permit. The permit designates certain sites at the Mapleton

facility as Solid Waste Management Units (SWMU) subject to

corrective action, including investigation and possible remedial

action. Sherex filed a permit appeal with the Board challenging

the designation of the SWNU5. Pursuant to a stipulation

agreement, Sherex and the Agency have resolved all issues

appealed by Sherex except for item #14 in Section III of the

permit designating the HPA reactor disposal area as a SWMU.

DISCUSSION

The parties agree that there are no genuine issues of

material fact and that the only question remaining is whether the

Agency’s designation of the HPA reactor area as a SWMU is

improper because the Agency has already agreed to the appropriate

remediation in the consent decree which also releases the parties

from future claims. In a permit appeal before the Board, the

issue is whether the disputed permit condition is necessary to

accomplish the purposes of the Environmental Protection Act (Act)

and Board regulations. (Joliet Sand & Gravel v. IPCB (3d Dist.

1987), 163 Ill. App. 3d 830, 516 N.E.2d 955, 958.) Because the

Board is presented with motions for summary judgment, the proper

inquiry is whether, as a matter of law, the designation of the

HPA reactor area as a SWMU is necessary to accomplish the

purposes of the Act and Board regulations in light of the consent

decree. To decide this issue, the Board must compare the

provisions of the consent decree and the permit condition.

The section of the permit governing corrective action

provides that Sherex shall submit to the Agency a “written RCRA

Facility Investigation (RFI) Phase I Workplan to document the

absence or presence of hazardous waste or hazardous constituents”

from the 

“SRAPL

site (HPA reactor cleaning solution area).” (R.

162-63.) The requirements for the RFI Phase I Workplan are

outlined in Attachment A which provides that the purpose of Phase

I is to demonstrate conclusively whether or not any release of

hazardous wastes or constituents has occurred from the SWNU. (R.

184.) If the Agency determines that the data submitted in the

Phase I Workplan establishes that no release occt~rred, no further

action is required. (R. 163.) If the Agency concludes a release

did occur, Sherex must submit a Phase II Workplan to determine

the extent of migration. (R. 163.) The Agency will determine

whether corrective action is necessary based upon the Phase II

0135-0138

3

Workplan. (R. 163.) These provisions are sta;~iard “boiler-

plate” language in RCP.A Part B Permits. (Pet. Mot. for Suinm.

Judg. Ex. E Dep. James Moore at 63.)

The consent decree recognizes that there was an actual and

threatened release of copper and cadmium, which are hazardous

substances, from the SRAPL HPA reactor disposal area at the

Napleton site. (Pet. Mot. for Summ. Judg. Ex. C at 3.) The

parties agreed that the State would be reimbursed for past and

certain future response costs and that ADM, Ashland and Sherex

will share past, future and contingent response costs. 

at

4.) The decree provides that the State or its designee may

undertake a monitoring program to determine the levels of cadmium

and copper in the groundwater and that the Agency, in

consultation with the other parties, will determine which wells

to sample, the method of sampling and the schedule for sampling

and analysis. 

(I~

at 6.) The decree creates a fund allowing

the state to perform further response action, possibly including

the construction of a slurry wall. 

at 7—10.) The release

section of the decree, which is the focal point of the Agency’s

cross motion for summary judgment, provides as follows:

In consideration of the mutual promises and undertakings

contained herein, the parties agree that upon entry of this

Consent Decree, they hereby release each other.. .froin any

and all claims of any party to the disposal of spent nitric

acid wash from the !WA reactor at the Mapleton site,

including all claims which were raised or which could have

been raised with respect thereto.

Further, nothing in this Consent Decree shall be construed

as a release of any right to bring an action to redress

violations of this Consent Decree or of any applicable State

or Federal laws or regulations or to obtain response costs

with respect to the migration of hazardous substances from

the Site or to the Site from another site.

(j~

at 13—15.)

Sherex contends that the language of the consent decree bars

the Agency from requiring any corrective action for the SRAPL HPA

reactor site unless such action is required by the consent

decree. The Agency contends that the release language quoted

above preserves the Agency’s right to designate the SRAPL site as

a SWMU subject to corrective action.

The second paragraph of the release language quoted above

preserves the right to bring an action to enforce the terms of

the consent decree or an action to enforce any applicable laws or

regulations. This language simply preserves the Agency’s ability

to bring an enforcement action to address violations of the Act

0135-0139

4

or regulations. Designation of the SRAPL site as a SWMU during

the permitting process is not an “action to redress violations”

of the laws or regulations. Contrary to the Agency’s contention,

this release language does not preserve the right to impose

permit conditions.

The first paragraph of the release quoted above provides

that the parties have agreed to release each other from any

“claims” relating to the disposal of acid nitric wash at the HPA

reactor disposal area which were raised or could have been

raised. However, the Agency’s authority to impose a permit

condition is not a claim. The Board finds that this language by

itself does not preclude the Agency from imposing permit

conditions relating to the HPA reactor area.

Based upon a review of the release provisions, the Board

finds that this language preserves the Agency’s ability to bring

certain enforcement actions and that the release does not

preclude the Agency from imposing permit conditions. Apart from

the release provisions of the decree, however, the Board is still

left with the question of whether the remaining provisions of the

decree prevent the Agency from requiring further response action

with regard to the SRAPL HPA reactor site.

The consent decree governs corrective action necessitated by

the release of cadmium and copper which was present in the nitric

acid solution used in cleaning the HPA reactor and disposed of

on-site at the Mapleton facility. The parties agree that this

consent decree was entered into after adding the HPA reactor

disposal area to the SRAPL and the completion of the Remedial

Investigation (RI) funded by Ashland, Sherex and the Agency. The

subject matter of the decree and the challenged permit condition

is identical. Both the decree and the permit condition concern.

the release of cadmium and copper from the HPA reactor disposal

area. The consent decree sets forth the Agency’s agreement as to

the appropriate corrective action to be performed at the SRAPL

HPA reactor disposal area. The challenged permit condition

requires that Sherex perform certain studies investigating the

occurrence of a release from the SRAPL HPA reactor disposal area.

The Board concludes that because the Agency has entered into

a consent decree agreeing to the corrective action measures to be

performed at the SRAPL HPA reactor site as a result of the

release of cadmium and copper, it is barred from imposing a

permit condition designating that same site as a SWMU subject to

investigation and corrective action.

Moreover, the Board finds that, as a matter of law, the

challenged permit condition requiring investigation into whether

a release has occurred and possible corrective action is not

necessary to accomplish the purposes of the Act and regulations.

While the parties have focused on the release provisions of the

0135-ORO

5

consent decree, they have failed to focus on whether the

challenged condition is necessary to accomplish the purposes of

the Act and regulations. As noted above, this is the proper

inquiry in a permit appeal before the Board. Here, this inquiry

must be addressed in the context of a motion for summary

judgment.

Citing 35 Ill. Adm. Code 724.201, the Agency does make the

general assertion that the condition is consistent with the

Board’s regulations. However, Section 724.201 merely provides

that owners and operators seeking hazardous waste disposal

permits must institute corrective action for all releases from

SWMUs. This general provision does not support the Agency’s

imposition of the challenged permit condition in light of the

investigative and remedial actions taken by the parties to the

consent decree. •The instant condition is not necessary because a

release has already been identified, a RI has been performed

assessing the extent of migration and appropriate corrective

action has been established. To require, by way of a permit

condition, actions which have already been undertaken pursuant to

a consent decree does nc~thingto further the purposes of the Act

or regulations. Theref.re, the Board reverses the Agency’s

imposition of the permit condition designating the SRAPL HPA

reactor site as a SWMU subject to corrective action. Sherex’s

motion for summary judgment is granted. The Agency’s cross

motion for summary judgment is denied. The Agency is instructed

to strike the challenged condition from Sherex’s RCRA Part B

Permit.

The Board notes that the stipulation entered into by Sherex

and the Agency provides that “the parties will request a

continuance of the hearing as it concerns three itents)...to

allow Sherex to complete its the sic) proposed sampling and

analysis plan...and in order to allow the Agency to complete its

review of) Sherex’s sampling and analysis results.” However,

the stipulation also provides that the stipulation will. be

implemented by means of a permit application filed by Sherex

-after completion of the sampling results. Sherex also states in

its memorandum in support of summary judgment that “ajfter

completion of the sampling the parties hope to be able to resolve

all remaining issues. If not, the hearing will resume.” (Mem.

at 3 fn. 3.) Sherex’s motion for summary judgment does not

indicate that it is a partial motion for summary judgment, but

rather states that the issue concerning the designation of the

SRAPL HPA reactor site as a SWNU is the “only issue currently

pending in its appeal of the RCRA Part B Permit”. 

at 1.)

Although the parties have agreed to continue the hearing in this

docket, they have also agreed that any issues stemming from the

three “sampling items” will be dealt with via a new permit

application. The Board concludes that the instant order disposes

of all remaining issues in this docket and, therefore, this

docket is closed.

0135-01 

1

6

IT IS SO ORDERED.

B. Forcade concurs.

Section 41 of the Environmental Protection Act (Ill. Rev.

Stat. 1991, ch. 111 1/2, par. 1041) 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, and

Casteneda 

Illinois Human Rights Commission (1989), 132 Ill. 2d

304, 547 N.E.2d 437.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby cert~fythat the above order was adopted on the

day of 

____________

1992 by a vote of 

~-~‘

Dorothy N. G~(j’in, Clerk

Illinois PolU/ution Control Board

0135-01142