IlLINOIS
POLLUTION
CONTROL
BOARD
August
26,
1993
I
N
TI IS
MATT
ER
OF
PETITION
OF CONVERSION
SYSTEMS,
)
AS
93~—4
INC.
,
FOR ADJUSTED
STANDARD
FROM
)
(Adlusted Standard)
35
ILL.
ADM.
CODE PART
811
(LINER)
ORDER OF THE BOARD
(by
J. Anderson):
On July
2,
1992,
Conversion
Systems,
Inc.
(CSI)
filed
a
motion regarding procedural matters that included a request that
the Board determine whether an adjusted standard
is the
appropriate procedural mechanism for CSI’s petition.
The
Illinois Environmental Protection Agency (Agency)
does not object
to CSI’s motion, which accompanied CSI’s petition for an adjusted
standard from
35
Ill. Adm.
Code 811
(liner).’
The motion asserts
that this procedural issue was raised by the Agency and the
disagreement has impeded the discussions between the Agency and
CSI.
On July 20,
1993, the Agency filed a response and motion to
dismiss CSI’s petition.
On July 20, CSI filed a response to the
Agency’s motion to dismiss.2
Letters of support for proceeding
with the adjusted standard were also received from Central
Illinois Public Service Company (August
2,
1993,
August
6,
1993);
Central Illinois Light Company
(August
3,
1993); and the City of
Springfield
(August
4,
1993).
On August
5,
1993, CSI filed
a
motion for expedited decision, which we need not rule on
in
that
the decision is rendered today.
Alternative technologies.
The Board views requests for approval
of alternate technologies from the following perspective:
a)
On the same day, July
2,
1993, CSI also filed a
companion petition,
docketed as AS 93-5,
for adjusted standard
from
35
Ill. Adm.
Code 811
(monofill).
The filings
in both
dockets addressed similar procedural matters,
some of which were
addressed by separate orders of the Board on July 22,
1993.
In
like manner, the Board will continue here to address the
remaining procedural
issue regarding whether the adjusted
standard
is the appropriate procedural mechanism.
2
We note that the Agency and CSI argued this same issue
in
a predecessor docket,
AS
92-9.
In that both CSI and the
Agency again argued the issue
in the present filings, the Board
will not review the arguments
in the AS 92-9 record
on this
issue.
cns
j
deratior,
of
new
alternate
technologies
is
to
he
encouraged;
L)
the
Board
Wi
1
1 cont
i nue to make flexible
use
of
the adjusted
standard,
except
as
expressly
limited
by
the statute,
as
a
procedural
vehicle
to
bring
issues
before
it for consideration on
the
merits;
and
C)
the
merits
of
a
petition
is
~.
separate and
d
I ot
i nct
issue
from
the
procedure
used
Nature
of
relief sought.
CSI requests Board approval
of the use
of utility ash and Flue Gas Desulfurization
(FGD)
waste treated
with
its
Poz-O—Tec
process
as
a
liner
and
cap
material
for
new
chemical
waste
landfills
accepting
only
FGD
sludges
and
coal
combustion
waste.
We
note
that
that
the
definition
of
landfill
in
the
Board’s
landfill
regulations
presently
does
not
include
the
surface
impoundments
commonly
used
by
most
utilities
for
disposal.
Arguments.
This
Board
order
today
is
not
to
be
construed
as
reaching
any
conclusions
about
the
merits
of
CSI’s
proposal
or
of
any
of
the
merit-related
arguments
of
the
parties.
We
also
note
that
we
anticipate
shortly
seeking
more
information
from
CSI
pending
a
more
detailed
review
of
the
petition.
The Agency’s arguments in essence assert that an adjusted
standard cannot be granted on other than a site specific basis,
with the operator as a necessary party (although the Agency
acknowledges that the Board’s P1MW regulations allow for
technology—specific adjusted standards that are not site—
specific).
We note that the Agency’s legal arguments paralleled
those put forth in the companion docket AS
93-5.
CSI argues that
it cannot realistically supply site-specific
information regarding the hydrogeology or surrounding land uses
of each site utilizing its Poz—O—Tec and does not agree that
it
must do so.
CSI points out that all of the site specific
information
the
Agency
has
indicated
as
necessary
must
be
presented to the Agency before any waste
is accepted either
in
the
permit
process
or
by
the reporting required for onsite
facilities.
35
Ill.
Adm.
Code 811.306.
We note that both parties refer to
35
Ill.
Adin.
Code 811.306
(Liner Systems),
subsection
(g)
of the
Board’s generally applicable landfill regulations.
That
The supernatent discharged
from the utility surface
impoundments,
commonly called ash lagoons,
is regulated
by NPDES
permit.
The Board earlier had held
a number of hearings
on
a
proposal
of the utilities that
included proposed amendments to
the
landfill regulations that would regulate ash lagoon disposal,
but
the
utilities moved
to dismiss
the
proposal
prior to Board
action.
(In the Mat:ter of:
Industr~y
Amendments
to the Landfill
Regulations
(Parts
8
~P:~iJJ~)
,
d ismissi
1
order
April
9,
1992.
subsection
allows
the
Agency
to
authorize
the
owner
or
operator
to
use
alternative technologies or materials when constructing
the liner provided that equivalent
or superior performance
is
provided,
it has been utilized in
a similar application,
and
manufacturing and construction quality assurance can be
implemented.
The subsection does not address an adjusted standard
procedure.
On the contrary, subsection
(g) provides
a different
procedure for utilizing another technology that has been utilized
at least once before; the procedure is available,
though, only to
an operator when applying for an Agency permit.
This reflected
the Board’s desire to encourage other,
if not new, technologies
not envisioned by the regulations.4
Such Agency permit
determinations pursuant to subsection
(g) certainly do not
supersede,
or otherwise diminish,
the Board’s statutory authority
in Section 28.1(c)
of the Act to grant an adjusted standard from
its regulations and impose conditions
if
it determines that
a
person has made the justifications pursuant to the statute.
Board conclusions.
The Board concludes that CSI’s petition for
an adjusted standard is an appropriate procedural approach.
While the Board appreciates the “site specific” tradition,
we find nothing in the adjusted standard language,
implicitly or
otherwise, precluding any person who has developed a new
alternate technology from seeking approval its for use by others.
Section
28..
does not limit petitioners to only owners and
operators applying on a site-by-site basis.
The Board has
provided for,
and granted, adjusted standards in a number of
settings,
including those involving the developer or
manufacturer.5
‘~
The R88—7 Board opinion noted testimony and research
that addressed the possibility that special construction
techniques might even allow for a thinner liner,
examples being
the use of paving equipment that could lay down very thin
horizantal layers of carefully mixed material,
the use of
admixtures such as soil cement,
asphalt, bentonite or chemical
soil additives such as petroleum—based
emulsions, powdered
polymers,
and
monovalent
cationic
based
salts.
“Equivalent
performance” expected under subsection
(g) means that the
technology must be at least equal
to the performance of
a clay
liner compacted
to
a hydraulic conductivity of
1x101 cm/sec.
(R88-7,
final opinion, Appendix A-l,
at
37,
38, Appendix A—2 at
78.
See
e.
g.
,
the adjusted standards
related
to:
new
alternate technologies
in the P1MW program;
the
diesel
exhaust
program,
where
AS
was qranted
to engine
manufacturer
but
vehicle
4
We emphasize that the landfill regulations are drafted
to
hold the owner or operator of
a specific site responsible for
compliance
with
the
regulations
and
any applicable adjusted
standard
in
all
respects,
up
to
and
including
compliance
with
the
non—degradation
standard
of
no
contaminant
transport
beyond
100
feet
in 100 years.
CSI’s petition for adjusted standard
is accepted.
We
suggest
that
the
Board’s
comments
in
Keystone
(In
the
Matter
of:
Petition of Keystone Steel and Wire Company for Hazardous Waste
Delisting,
(February
6,
1992,
pp.
8—10),
AS 91-1) may be
especially helpful here,
in that
in this proceeding and the RCRA
delisting
in the Keystone proceeding, we share the experience of
dealing with a rather new use of the adjusted standard process.
IT
IS SO ORDERED.
C.
A.
Manning and B.
Forcade dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi,fy that the above order was adopted on the
,~-
day of _______________________,
1993,
by a vote of
_____
~z
.~A
~x ~
(;
Do’rothy M. ~nn,
Clerk
Illinois Pthlution Control Board
owner responsible
for ongoing maintenance.