ILLINOIS POLLUTION CONTROL BOARD
May 19,
1994
ROCK-OLA MANUFACTURING
)
CORPORATION,
)
Petitioner,
)
v.
)
PCB 90—24
)
(Permit Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
JOHN CHEN OF RUDNICK & WOLFE APPEARED ON BEHALF OF PETITIONER;
DANIEL
P. MERRIMAN
AND
JOHN BURDS APPEARED ON BEHALF OF
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by G. T. Girard):
This matter comes before the Board upon a petition for
review filed on February 15,
1990,
by Rock-Ola Manufacturing
Corporation (Rock-Ola).
Rock-Ola requests that the Board review
a January
8,
1990, decision by the Illinois Environmental
Protection Agency (Agency) withholding approval of a
certification of closure for Rock—Ola’s interim status hazardous
waste facility.
The facility at issue is located at 800 North
Kedzie Avenue, Cook County, Chicago, Illinois.
Rock—Ola seeks to close its former interim status hazardous
waste container storage area pursuant to 35 Ill. Adm. Code
725.2151.
The Agency received Rock-Ola’s certification and
supporting documentation on July 31,
1989.
(R. at 43_202.)2
~
January
8,
1990, the Agency issued its denial letter stating that
soil samples were not analyzed for all parameters required by the
‘The Board
notes that Rock-Ola’s
original petition
stated
that
it
filed a closure plan with
the Agency pursuant to
35 Ill.
Adm.
Code 724
et
seq.
(Pet.
at
1.)
The
Agency correctly
considered
this case
under Section
725, because
the Rock-Ola site
was
an
“interim
status”
facility.
2Rock-Ola’s petition will
be
cited as “Pet.
at
_“;
Rock-Ola’s October 21,
1993,
“Post-
Trial Memorandum”
will be
cited
as
“Pet.
Br.
at
_“;
Rock-Ola’s March 21,
1994,
“Reply
Memorandum”
will
be cited as
“Pet. Rep.
Br.
at
_“;
the Agency’s January 6,
1994,
“Supplemental Response”
will be cited as “Res.
Br.
at
_“;
the Agency Record will be cited
as
“R.
at
“;
the Board Hearing
Transcript will
be
cited
as
“Tr.
at
“;
the Stipulation of
Facts introduced at
the Board Hearing as Joint Exhibit
#1
will
be cited as “Stip. at
_“;
Petitioner’s Exhibit
#1
will
be
cited as “Pet. Ex.
at
“;
Respondent’s Exhibits will be cited
as
“Res.
Ex.
—
at
“.
2
approved closure plan.
In addition, the denial letter
established revised soil cleanup objectives.
(R. at 1—3.)
Rock
Ola filed with the Board a “petition for hearing”, requesting
that the Board reverse the Agency’s denial of certification of
closure and approve Rock-Ola’s certification of closure for the
facility.
(Pet.
at 3.)
The Agency Record was filed on July 1,
1993.
Hearing was
held before Hearing Officer Marvin Medintz on August 16,
1993,
in
Chicago, Cook County,
Illinois.
No members of the public
attended.
Rock-Ola filed a “Post—Trial Memorandum” on October
21,
1993.
The Agency filed a “Supplemental Response” on January
6,
1994.
Rock-Ola filed
a “Reply Memorandum” on March 21,
1994.
During the pendency of this case, Rock—Ola filed numerous waivers
of the Board’s statutory decision deadline while Rock-Ola and the
Agency engaged in ultimately unsuccessful settlement
negotiations.
The latest waiver of decision deadline was filed
by Rock-O.a
on April 28,
1994, moving the Board’s decision
deadline to May 20,
1994.
Based on review of the record, the Board finds that Rock-Ola
should be issued a RCRA clean closure certification for its North
Kedzie facility for the reasons set forth below.
FACILITY DESCRIPTION
Rock-Ola formerly operated a manufacturing facility at the
North Kedzie property where Rock-Ola made juke boxes and vending
machines.
(Stip. at
1.)
Rock-Ola had been engaged in
manufacturing at the site since the early 1900’s.
(R. at 299.)
Certain hazardous wastes3 were generated in Rock—Ola’s
manufacturing process,
including recycled paint washer solution,
recycled water wall paint booth solutions, spent halogenated
solvents, degreasers,
paint sludge, and non—halogenated solvents.
(R. at 301.)
These materials where placed in 55—gallon drums and
stored
in the drum storage area at the northwest corner of the
Kedzie facility, adjacent to North Spaulding Avenue.
(R. at 301
and 302.)
The hazardous waste storage area was a 60-foot by 100-
foot curbed concrete slab, which could hold approximately 60
drums.
(R.
at 301-303.)
The pavement was constructed on a one-
foot layer of fill over natural undisturbed dense glacial clay.
(R.
at 301—303.)
In 1986,
Rock-Ola ceased operations at the North Kedzie
facility and relocated to Addison,
Illinois.
(R. at 299.)
During 1986, Rock-Ola removed its hazardous waste containers for
off—site disposal.
(R.
at 303,
339—342.)
During the relocation,
~
Listed
hazardous
wastes are given in Appendix G of 35
Iii. Adm. Code 721.
3
all buildings and structures were demolished and rubble was
removed from the site.
(R. at 299.)
The hazardous waste
containment area pavement was excavated to bare soil and the
rubble and debris removed from the site during the relocation.
(R. at 303.)
Rock-Ola ceased doing business in October,
1992.
(Stip. at 1.)
Records on the hazardous waste containment area have been
kept only since 1980,
in response to United States Environmental
Protection Agency
(USEPA) regulations.
(R.
at 303.)
Rock-Ola
filed a Part A application, dated October 27,
1980, with the
USEPA and attained RCRA interim status.
(R at 35,
301, 330-338.)
Two
hazardous waste storage sites were listed in the Part A
application;
the hazardous waste containment area
(SOl) which is
at
issue
in
this
case,
and
a
small
storage
tank
(S02)
on
the
sixth
floor
of
the
former
#10
building,
which
is
not at issue in
this
case.
(R.
at
44.)
Rock-Ola
did
not
develop
a
closure
plan
upon obtaining interim status.
(R. at 47.)
According to Rock-Ola’s Part A application,
legal ownership
of Rock-Ola’s North Kedzie property had been held by LaSalle
National Bank as Trustee under a Trust Agreement dated June 6,
1976.
(R. at 334•)4
On December 24,
1986, ownership was
transferred
to
Trust
number
111394.
(Stip. at 1.)
Thereafter,
an
entity
related
to
Trust number 111394 demolished the buildings
to
build
a
shopping
center.
(Stip.
at
1.)
The
Agency
site
inspection report narrative of March 14,
1988,
states
that
the
new owner is Paul Gussin of Maryland.
(R. at
413.)
The
shopping
center on the site, named Kedzie Plaza,
opened for business on
November 18,
1989.
(Stip.
at 14.)
REGULATORY
FRAMEWORK
The Board’s responsibility in this matter arises from the
Environmental
Protection
Act
(Act).
(415 ILCS 5/1 et seq.
(1992).)
The
Board
is
charged
therein
to
adjudicate
disputes
arising
out
of
permit5
decisions
made
by
the
Agency.
(Section
40
of
the
Act.)
Although
the
closure
plan
required
as
a
prerequisite
for
closure
certification
is
not
a literal “permit
application”,
in
prior
cases
the
Board
has
treated
closure
plan
4The Board
notes that the Stip.
(p.
1) gave the date of the Trust
Agreement as June
1,
1986.
The Agency Record clearly gives the date of 1976.
The date of the Trust Agreement
is not material
to
decide this case.
5Rock-Ola’s closure plan is a permit in
the context of the Act and a closure plan in
reference
to
state and federal
RCRA programs.
The Agency’s authority to issue
RCRA
permits is given at
Section
39(d)
of the Act.
4
condition appeals as permit appeals
(see further discussion under
“Standard of Review” below).
Certification of closure for interim hazardous waste
facilities is required by 35 Ill. Adm. Code 725.215.
Section
725.215 is part of 35 Ill.
Adm.
Code Subtitle G, which are the
Illinois regulations necessary to carry out the state’s
responsibilities under the federal Resource Conservation and
Recovery Act (RCRA).
The Board is required under the Act to
adopt all federal RCRA regulations into Illinois law (see Section
20 of the Act).
Section 725.215, entitled “Certification of Closure”,
states:
Within 60 days after completion of closure of each
hazardous waste surface impoundment, waste pile,
land
treatment and landfill unit, and within 60 days after
completion of final closure, the owner or operator
shall submit to the Agency, by registered mail,
a
certification that the hazardous waste management unit
or facility,
as applicable, has been closed in
accordance with the specifications in the ao~roved
closure plan.
The certification must be signed by the
owner or operator and by an independent registered
professional engineer.
Documentation supporting the
independent registered professional engineer’s
certification must be furnished to the Agency upon
request until the Agency releases the owner or operator
from the financial assurance requirements for closure
under Section 725.243(h).
(Emphasis added.)
STANDARD
OF REVIEW
This is an appeal of the Agency’s January
8,
1990, decision
to withhold approval of Rock-Ola’s final RCRA closure
certification and impose additional soil cleanup objectives.
A
RCRA closure plan submittal is properly treated procedurally as a
permit application
(Testor Corporation
v. IEPA (November 2,
1989), PCB 88-191).
However, the extensive formal procedures
applicable to normal RCRA permit appeals
(see 35 Ill. Adm. Code
Section 705)
are not applicable to Section 725 RCRA interim
status closure plan appeals.
(Browning Ferris Industries,
Inc.
v. IEPA
(May 5,
1988), PCB 84-136, affirmed, Browninc~Ferris
Industries of Illinois.
Inc.
V.
PCB,
179 Ill. App. 3d 598,
128
Ill.
Dec. 434,
534 N.E.2d 616
(2nd Dist.
1989).)
The owner or
operator in such an appeal bears the burden to prove that there
would be no violations of the Act or Board regulations if the
permit
(e.g. closure plan approval) were to issue without the
contested conditions.
(~.)
Although the cases cited above
pertained to appeals from Agency—imposed conditions on closure
5
plans, the standard of review in the instant appeal, where the
Agency withheld RCRA closure certification, remains the same.
To
prevail in this appeal, Rock—Ola must show, based on the record
before the Agency at the time of its January
8,
1990, decision,
that the closure of its hazardous waste container storage
facility complied with all applicable provisions of the Act and
Board regulations.
When the Agency denies a permit,
it must issue a statement
in accordance with Section 39(a) of the Act which sets forth the
sections of the Act and regulations that may be violated, the
type of information the Agency deems the applicant failed to
provide and a statement of the specific reasons why the Act and
regulations might not be met if the permit was granted.
It is
well established that the information in the denial statement
frames the issues on review.
(415 ILCS 5/39(a); Centralia
Environmental Services.
Inc.
v.
IEPA, PCB 89-170 at
6
(May 10,
1990); City of Metropolis v. IEPA, PCB 90-8 (February 22,
1990).)
Such information is necessary to satisfy principles of
fundamental fairness because it is the applicant who has the
burden of proof before the Board to demonstrate that the reasons
and regulatory and statutory bases for denial are inadequate to
support
permit
denial.
(Technical Services Co.
v.. IEPA,
PCB 81-
105
at
2
(November
5,
1981).)
As
previously
stated,
Rock—Ola
seeks
to
close
its
hazardous
waste
containment
facility
pursuant
to
35
Ill.
Adm.
Code
725.215.
Central
to
this
appeal
is
the requirement that the facility “has
been
closed
in
accordance
with
the specifications in the approved
closure
plan”.
(Section
725.215.)
In
this
case, the Agency
denied certification for the one alleged deficiency specified in
the denial letter.
Therefore, before we proceed to the arguments
of the parties, we must review Rock—Ola’s facility closure plan
and then frame the discussion by examining the Agency denial
letter.
CLOSURE HISTORY
Closure Plan Development
The development, Agency approval, and contested
accomplishment of Rock-Ola’s closure plan has a lengthy history
dating back to 1988.
A factual recitation of the closure plan
history is complicated by numerous factors.
These factors
include the normal features that complicate RCRA clean closure
certifications,
such
as the pertinent regulations and Agency
review
process
that
sets soil clean—up objectives and reviews
documentation
to
ascertain
closure
according
to
plan.
The
peculiar
factors
that
complicated this case included two property
owners,
two
legal
firms,
two
closure
plans,
two
Rock—Ola
environmental
consultants,
three
Agency
project
managers,
and
the
6
presence of a shopping center now on the site.
Therefore,
a
lengthy factual history is necessary to lay the foundation for a
discussion of issues leading to Board findings and conclusions.
On April 15, 1988, the Agency posted a pre-enforcement
conference letter, notifying Rock—Ola of the requirement to file
a written closure plan for the Kedzie facility.
(R. at 400;
Stip.
at 2.)
After a settlement conference with the Agency,
Rock-Ola agreed to file a written closure plan.
(Stip. at 2.)
The Agency notified Rock-Ola on June 24,
1988, that Rock-Ola’s
closure plan had been received, and the apparent violation for
not filing a closure plan was now resolved, but the adequacy of
the closure plan was not addressed.
(R.
at 385.)
In May 1988 Rock-Ola began an environmental investigation of
the
facility conducted by STS Consultants
(Project No.
25458-XH).
The results of that investigation were submitted to the Agency on
July 25,
1988.
(R. at 294—384; Stip.
at 2.)
Information in the
“Closure Documentation Report” included facility description
(R.
at 299), description of waste management units
(R.
at 301),
regulatory
history
(R. at 303), and various technical studies
including
soil
sampling
for
numerous
chemical
parameters.
(R.
at
304-306.)
Rock-Ola collected twenty-eight soil samples in the
area of the drum storage facility.
(R. at 305.)
The deepest
depth of the soil exploration was five feet.
(Stip.
at 2.)
Joint Exhibit #1 also stipulates that:
“...The
Closure
Documentation Report identified the
presence
of
certain constituents on the Kedzie
facility,
including,
but
not
limited
to:
1,1,1-
trichloroethane,
tetrachloroethylene,
trichloroethylene,
1, 1—dichloroethane,
cadmium,
chromium and lead.
The highest levels of each of these
constituents
detected
in
the
soils were as follows:
Volatile
Organic
Com~ounds6
1,1,1-trichioroethane
2.60
ppm
tetrachloroethylene
.031 ppm
tetrachloroethylene
.043 ppm (soil gas)
trichloroethylene
.030
ppm
1,1-dichioroethane
.100 ppm
6The Board
will refer to volatile organic compounds as
VOC
(singular)
or
VOCs
(plural)
in
this opinion.
7
E.P.
Toxicity’
cadmium
.08
ppm
chromium
1.10
ppm
lead
1.20
ppm
Rock—Ola’s environmental consultant stated that due to
the low levels of soil contamination, no additional
excavation or reinediation efforts were necessary...”
(Stip. at 2—3.)
On August 16,
1988, Rock-Ola also submitted additional soil
analyses to the Agency for two samples collected at boring B—lOS.
(R. at 288-292.)
These tests were done because the chemical
analyses submitted to the Agency on July 25,
1988,
had shown the
highest level of 1,1,i-trichloroethane
(2.60 ppm) at B-lOS.
In
the additional testing, the highest level of 1,1,1-
trichloroethane detected was 4.8 ppm (Stip. at 3; R. at 292)
and
the highest level of trichloroethylene was 0.05 ppm.
(Stip. at
3; R. at 292.)
“The Agency assigned Eugene W. Dingledine,
an engineer
in the Permit Section of the Division of Land Pollution
Control, to review the closure of the Kedzie facility.
Dingledine’s review was based on his interpretation of
the information contained in the Closure Documentation
Report and the Agency’s field notes.
As part of the
review process, Dingledine completed a closure plan
review form.
(Ex. 28.)
On review form, Dingledine
noted that Rock—Ola was making a clean closure request.
In the review form, he reported that the sampling was
performed properly, and stated that the Closure
Documentation Report provided that no waste would be
removed from the Kedzie facility.
In the review form,
Dingledine recommended to approve the closure plan, as
submitted, without modification.
(Ex.
28.)”
(Stip.
at 3.)
On August 8,
1988,
Mr. Dingledine prepared an internal
Agency memo requesting a “Clean—up Objectives Review” by the
Agency’s Clean-up Objectives Team (COT).
(R.
at 272,
278.)
The
7E.P.
Toxicity
stands
for Extraction Procedures Toxicity Test.
This test, developed
by
USEPA,
predicts
movement of certain chemicals,
especially
metals,
through
soil
with
infiltrating
rain
water.
(Tr.
at
185.)
8
COT8 only reviewed scientific data associated with closure plans
and provided site—specific recommendations for cleanup
objectives.
(Tr. at 150,
195.)
Mr. Dingledine’s memo reflected
Rock-Ola’s request that the chemical sampling be accepted and no
further clean-up be required.
(R. at 277.)
COT met on September 8, 1988, to consider clean—up
objectives for the Rock—Ola site as reported in an internal
Agency memo of September 15,
1988.
(R. at 275.)
COT reviewed
the sampling and analysis report and determined that additional
clean—up was needed to meet objectives.
COT suggested clean—up
objectives for cadmium, chromium II, chromium VI, and lead
(R. at
275) that were incorporated into the closure plan.
COT’s technical recommendations were forwarded for review
and approval to the Agency’s committee for Coordinated Review of
Permit Applications
(CROPA).
A committee composed of senior
Agency managers, CROPA’s purpose was to review the closure plan
and the technical recommendation of COT, and make the final
policy decision on whether or not the clean—up objectives9 were
appropriate for that facility.
(Tr. at 152-154.)
On September
27,
1988, CROPA reviewed and accepted a COT recommendation for
clean—up objectives for metals in soils at Rock—Ola’s site.
(R.
at 274.)
CROPA also recommended additional exploratory work at
greater depths to determine if organic contamination was present.
(R. at 274.)
On October 26,
1988, the Agency approved the Closure
Documentation Report prepared by STS Consultants
(Rock-Ola’s
consultant), and attached conditions to the closure plan.
(Stip.
at 4-6.)
The Agency-approved closure plan only established
clean-up objectives for four metals
(cadmium, chromium III,
chromium IV and lead)
and one VOC (1,1,,1-trichloroethane).
(Stip.
at 6,
R. at 272.)
Site Remediation
In November, 1988 soils were excavated in and around the
subject area.
(Stip. at
6;
R. at 63.)
The soil was excavated to
18 inches around soil borings B-lOS and B-107
(Stip.
at 6; R. at
8
A member ofCOT from 1986-1993, Agency employee, Dr. Hornshaw, testified at
hearing
that COT was “discontinued” in
February
1993
(Tr. at
140,
141).
9At
hearing
Agency project manager, Eric Minder, testified that “clean-up
objectives
are concentrations which the
Agency
establishes to
which
the facility must clean-up
soils if
concentrations exceed
the
clean-up objectives
at the
site
before closure certification will be
approved”.
(Tr.
at 67.)
Mr. Minder
further
testified that
“standard
procedure requires that
clean-up
objectives be established
by
COT
CROPA teams”.
(Tr.
at 67.)
9
63) and 90 cubic yards were removed.
(Stip. at 7.)
Thirty-six
square foot areas around other soil boring sites were also
excavated to eighteen inches and an additional 70 cubic yards of
soil were removed.
(Stip. at 7.)
The soils were stock—piled on
visqueen plastic and covered.
(Stip. at 7.)
These stock-piled
soils were later given designation S03 by the Agency.
(See point
#1 of May 11,
1989, closure plan approved by Agency; Stip. at 7.)
On March 3,
1989, Barbara Magel of the law
firm
Karaganis
&
White sent a letter to the Agency requesting an extension of the
closure date for the property.
(Stip.
at 7; R. at 261,
262.)
On
May 11,
1989,
the Agency sent a revised closure plan in response
to the Magel letter.
(Stip. at 7.)
Agency engineer G. Tod Rowe
reviewed the correspondence from attorney Magel and recommended
an Agency response.
(R. at 394.)
On May 25,
1989, Magel wrote a
letter to the Agency stating that her firm represented the new
owner, but did not have authority to represent Rock-Ola.
(Stip.
at 10; R. at 203,
204.)
In May 1989 the stock—piled soils (waste
pile S03) were properly disposed.
(Stip. at 11.)
On July 28,
1989, Rock—Ola submitted its Closure Certification Statement and
Documentation to the Agency
(Stip.
at 11), which was signed by
Rock-Ola’s President
(R.
at 45) and an engineer with Rock-Ola’s
environmental consultant,
MAECORP.
(R. at 48.)
On July 31,
1989, the Agency received Rock-Ola’s closure certification
statement and the supporting documentation consisting of
MAECORP’s Closure Documentation Report.
(R. at 44-202.)
A
closure verification inspection dated August 3,
1989, by Agency
inspector, John Maher,
of the Agency’s Maywood office indicated
that regulated unit SO1 had been closed in accordance with the
approved closure plan.
(R. at 33,
58.)
Results of Final Chemical Analyses
The Closure Documentation Report, prepared for Rock—Ola by
MAECORP, described the clean-up at the Kedzie facility.
(Stip.
at 12;
R. at 52-62.) MAECORP personnel identified a 120-foot by
160-foot area of concern which included the 60-foot by 100-foot
hazardous waste containment area.
(R. at 55.)
MAECORP obtained
and analyzed perimeter soil samples for l,1,1—trichloroethane by
employing an organic vapor analyzer and observed no detectable
amounts of 1,1,1-trichioroethane.
(R. at 56.)
Soil samples
were analyzed at the eleven areas where soil had been removed.
(Stip. at 12; R. at 63.)
For the five parameters with specified
clean-up objectives in the closure plan, the highest levels of
contamination detected in this confirmatory sampling were as
follows:
1,1,1-trichloroethane, chromium IV, and lead were not
detected; cadmium was detected at 0.005 ppm; and chromium III was
detected at 0.013 ppm.
(Stip.
at 12; R. at 65—76.)
The soil testing reported in confirmatory sampling
(R. at
65-76) detected other contaminants above their PQL’s only at
10
Location 10
(which corresponds to B-102 of the 1988 soil testing;
see sample location map,
R. at 63).
In the denial letter, the
Agency expressed concern with contamination by 1,1—
dichioroethane, tetrachloroethylene,
and trichloroethylene.
(R.
at 1.)
The concentration level at Location 10 for each of these
VOCs was:
1,1 dichloroethane at 0.0167 ppm; tetrachloroethylene
at 0.118 ppm, and trichloroethylene at 0.832 ppm.
(R. at 66.)
These three constituents of new concern to the Agency had
been detected in the soil sampling submitted for the Agency by
Rock-Ola in July and August 1988
(Stip.
at 12), prior to the
Agency issuance of the closure plan and clean—up objectives.
1,1—Dichloroethane was detected at the following locations
and concentrations prior to closure plan approval in 1988:
Record Page
Bore Site
Concentration (~m)
R. at 116
R. at 289
R. at 291
B-lOS
B
B-l05 C
B-lOS D
0.10
0.003
0.004
Tetrachloroethylene was detected at
and concentrations prior to closure plan
the following locations
approval in 1988:
Record Page
Bore
Site
Concentration
(gum)
R. at 99
R. at 100
R. at 114
R. at 124
R. at 289
B-101
A
B-lOl
B
B-lOS
A
B—l07
B
B-lOS
C
0.031
0.001
0.003
0.002
?
10
Trichloroethylene was detected at the following locations
and concentrations prior to closure plan approval in 1988:
Record Page
Bore
Site
Concentration ~
R. at 105
R. at 107
R. at 113
R. at 117
R. at 119
B-102 A
B-102 B
B-104 A
B-lOS A
B—105
B
0.030
0.008
0.007
0.001
0.010
~rheconcentration
level
reads
01
ppm on
the test results data sheet.
This value
is
not
reported
in
the
same form
as other results
in the columns above.
The Agency
believes
that
review of the preceding
line,
shows
that the value should
be
read as
0.001
ppm, or a
“non-detect”.
(See footnote 2 of Res.
Br.
at 4.)
While
this may be
the
most plausible
explanation, the
Board
must
still note
uncertainty
with
this
datum.
11
R. at 121
B—106 A
0.009
R. at 290
B—lOS C
0.030
R. at 292
B—105 D
0.050
AGENCY
REVIEW
OF
ROCK-OLA’ S
CLOSURE
DOCUMENTATION
On
July
31,
1989,
the
Agency
received
Rock-Ola’s
Closure
Certification Statement and documentation.
The Agency assigned
Eric Minder11 to review Rock-Ola’s final closure certification
and supporting documentation.
(Tr. at 68-70, 74.)
Mr. Minder
studied documents in the Agency’s Rock-Ola file, prepared written
notes documenting his review
(R. at 34—41), and prepared a two
page memorandum to COT, dated November 7,
1989, which indicated
soil contamination with 1,l—dichloroethane, tetrachloroethylene,
and trichioroethylene at MAECORP’s soil sampling location No.
10
(R. at 13,
14) which corresponds to sample site B-102 of the STS
pre-closure sampling.
(R. at 63.)
On November 16,
1989, Mr. Minder prepared a form requesting
a re—evaluation of soil clean—up objectives for the Rock—Ola
site.
(R. at 9.)
Based on Mr. Minder’s request, COT met again
on November 30,
1989, to reconsider and re—evaluate Rock—Ola’s
site.
(R. at 8.)
Pursuant to that review, COT recommended
additional soil clean—up objectives for tetrachloroethylene and
trichloroethylene of 0.025 ppm each.
(R. at 8.)
The COT recommendations for the Rock—Ola site were reviewed
by CROPA on December 18,
1989.
(R.
at 7.)
CROPA noted that
because the level of trichioroethylene was high, additional
efforts should be made to see
if removal or monitoring were
necessary.
(R. at 7.)
The CROPA memo also noted that the area
of concern had been paved with asphalt for a parking lot.
The
memo stated that,
“CROPA does not condone the practice of early
burial of materials to develop an argument that later removal
is
now difficult”.
(R. at 7.)
Mr. Minder’s review notes closed
with the following notation:
Due to the contaminants found in the soils underlying
the container storage area, this facility was re-
evaluated by COT/CROPA.
Since the contaminants were
determined to be at high enough level to be considered
an environmental risk,
clean—up objectives were set for
contaminants of concern.
These clean—up objectives
were outlined in the Agency’s January 8,
1990,
letter
to MAECORP and Rudnick & Wolfe.
(R. at 41.)
~Mr.
Dingledine,
the original Agency project
manager
assigned
to
this project,
retired
from
the Agency
in June,
1989.
(Res. Br.
at 6.)
12
The Agency letter
(R. at 1-4) denying Rock-Ola’s closure
certification was sent on January 8,
1990, which is 161 days
after receipt of Rock-Ola’s final closure certification and
supporting documentation.
The letter was prepared by Mr. Minder
(R. at 3;
Tr. at 82) and signed by Lawrence Eastep, Manager of
the Agency’s Bureau of Land, Division of Land Pollution Control,
Permit Section.
(R. at
4..)
On January
8,
1990, the Agency issued its denial letter
which precipitated the instant appeal.
The contents of that
denial letter will be examined after discussing Rock-Ola’s
closure plan below.
PROPER ISSUES FOR
REVIEW
Which Closure Plan to Use
The Board must dispose of issues in two preliminary areas
before proceeding to decide this case.
First,
the Board must
decide which one of the two closure plans applies to this case.
Second, the Board must decide which issues have been raised by
the Agency denial letter to frame this appeal.
Rock—Ola’s closure certification documentation received by
the Agency on July 31,
1989,
claimed final closure in accordance
with the October 26,
1988, approved closure plan.
(R. at 45.)
The Agency denial letter of January
8,
1990, stated that Rock-
Ola’s closure certification documentation did not meet the
conditions set forth in the May 11,
1989, approved closure plan
modification.
(R. at 1.)
The Board must first decide which
closure plan applies in the instant case.
The stipulated history of Rock-Ola and Agency interactions
that led to the closure plan were introduced at hearing in Joint
Exhibit #1.
(Stip. at 1—4.)
On April 15,
1988, the Agency
notified Rock-Ola of possible violations of the Agency’s rules
and regulations,
including the possible violation that Rock-Ola
failed to furnish a closure plan for the N. Kedzie facility.
(Stip.
at 1.)
Following discussions between Rock—Ola and the
Agency, Rock-Ola submitted its Closure Documentation Report to
the Agency
(Stip.
at
2) on July 25,
1988 (referenced in Agency
Record at p.
43 as being filed on July 31,
1988).
Rock-Ola
submitted additional soil test results to the Agency on August
16,
1988.
(Stip. at 3.)
On October 26,
1988, the Agency
approved with conditions Rock—Ola’s Closure Documentation Report.
13
(Stip. at
4.)12
There was no appeal by Rock-Ola of the
conditions.
The Agency issued the revised closure plan on May 11,
1989,
in response to a letter from attorney Barbara Magel of the legal
firm,
Karaganis
& White,
requesting an extension of the closure
completion date.
(Stip. at 7)
On May 25,
1989, attorney Magel
wrote a letter to the Agency stating that her firm represented
the purchaser and had no authority to act on behalf of Rock-Ola.
(Stip. at 10.)
The Agency asserts that the only difference between the
October 26, 1988,
and the May 11,
1989, Agency closure plan
approvals related to the addition of a closure plan for the
stockpiled soil in the May 11 version.
(Res.
Br. at 14-15.)
This new waste pile (designated S03) was created during closure
activities for the container storage area
(501).
(Stip. at 7.)
Waste pile S03
is not at issue in this appeal.
Rock—Ola
maintains that the May 11,
1989,
closure plan approval was issued
in error by the Agency, and the October 26,
1988, Agency letter
should apply.
(R. at 45,
203-204; Pet. Br. at 7,
11.)
The
Agency also discusses the relationship between Rock—Ola and the
purchaser,
Mr. Gussin.
(Res.
Br. at 13-15.)
However, the major
Agency argument is that the conditions at issue are identical in
the two closure plans approved by the Agency.
(Res.
Br. at 14-
15.)
The Agency Brief
(Res.
Br. at
15) notes that conditions
1,
4,
6 and
7 of the October 26,
1988,
letter are identical to
conditions
2,
6,
9 and 12 of the May 11,
1989,
letter
(R. at 205,
207,
208,
270—273; Stip. at 4—6,
7—10)
and asserts that these
conditions are at issue in this appeal.
The Board agrees with the Agency that the substantive
specifications at issue are the same in the 1988 and 1989 closure
plan approval letters issued by the Agency.
The Board finds that
although the Agency’s January 9,
1990,
letter to Rock-Ola
withholding closure certification approval made reference to the
May 11,
1989, closure plan approval, while Rock—Ola’s closure
certification documentation made reference to the October 26,
1988, closure plan approval letter, the disparity is
inconsequential in determining the merits of this case.13
For
the purposes of this review, the Board will refer to the
condition numbering given in the May 11,
1989, closure approval
letter.
12The
Stipulation includes the footnote that
“tihe
parties agree that the October 26,
1988,
letter sets
forth
the following conditions,
but do not agree whether the conditions
are
binding,
enforceable or applicable”.
(Stip at 4.)
‘3The
Board
also
notes that
Rock-Ola
was
served
with
both
closure plan approvals,
but
did
not appeal either of the closure plan approval letters, or their conditions.
14
Issues Raised by Agency Denial Letter
The Agency denial letter
(R.
at 1-3) frames the issues on
appeal.
As a preliminary matter, the Board notes that there
is
an apparent discrepancy between the conditions given as closure
plan deficiencies in the Agency denial letter
(R. at 1—3) and the
deficient conditions asserted in the Agency Brief.
(Res.
Br. at
15—20.)
The Agency denial letter specifically addresses one
aspect of Condition 12, and also notes that additional soil
contaminates were observed in the confirmatory chemical analyses
submitted with the closure documentation.
(R. at 1.)
The Agency
Brief maintains that Conditions
2,
6,
9 and 12 are at issue..
(Res.
Br. at
15..)
The Agency Brief then proceeds with arguments
concerning Conditions
2,
9, and 12.
(Res.
Br. at 15-20.)
Condition
2
Condition 2
is a lengthy description of the proper
information to include in a Closure Documentation Report.
(Stip.
at 7—8.)
It includes the date by which closure should be
completed and other specific documentation required.
The Agency
Brief
(Res.
Br. at 15) argues that one failing of the Rock—Ola
closure was that an independent engineer was not present at all
critical closure activities as required by one aspect of
Condition 2.
(See paragraph 2, Condition 2,
p.
7—8 of Stip.)
However, the Board can observe no reference to this deficiency in
the Agency denial letter.
(R. at 1-3.)
Since the Agency denial
letter frames the issues on review, the Agency cannot raise the
absence of the engineer as an issue at this stage of the
proceedings, and the Board finds that this issue is not properly
before the Board in this review.
The Board notes, however, that
many other aspects of Condition 2 merely refer to the form of the
documentation necessary for submittal to the Agency as a Closure
Documentation Report, which is necessary for proper Agency
review.
The denial letter does not specify any deficiencies in
documentation form as submitted by Rock—Ola.
Condition
6
Condition
6
(Stip.
at 9)
states:
If the Agency determines that implementation of this
closure plan fails to satisfy the requirements of 35
Ill. Adm.
Code,
Section 725.211, the Agency reserves
the right to amend the closure plan.
Revisions of
closure plans are subject to the appeal provisions of
Section 40 of the Illinois Environmental Protection
Act.
Section 725.211 includes the requirement that closure must
be completed in accordance with the closure plan.
Even though
15
not specifically addressed in the Agency denial letter by
Condition number, that requirement is included in paragraph
3 of
page
2
(R.
at 2)
of the Agency denial letter,
and is a proper
issue in this review.
However, the Board will not use this very
general closure requirement to review every Single condition of
the Rock-Ola closure plan.
The Board will Consider Condition
6
as a general requirement applied to those specific Conditions
raised as proper issues for review in the Agency Denial letter.
Condition
9
Condition 9
(Stip. at 9)
specifies requirements for how the
chemical sampling and analytical procedures should be conducted
for the parameters of concern.
While
the Agency Brief
(Res.
Br.
at 16) asserted concerns with discrepancies in how the sampling
was conducted,
these concerns were not originally raised in the
Agency denial letter.
Therefore,
for the same reasons discussed
under Condition 2 above,
the Board finds that Agency cannot now
argue that Condition
9 was not met, and Condition 9
is not
properly before the Board
in this review.
Condition 12
The Agency denial letter of January
8,
1990,
stated that
Condition 12 of the May 11,
1989, approved closure plan
modification “was not done” by Rock~-Ola.
(R. at 1.)
Condition
12 of the May 11,
1989, closure plan (Stip. at 10), which is
equivalent to Condition
7 of the October 26,
1989, plan
(Stip. at
6)
states:
Soil sampling shall be carried out to greater depths in
natural soil
(i.e. not fill material) across the
sampling grid shown on Figure
4
(STS Drawing nol.
25458-XH)
of the Closure Documentation Report until
tests show the parameters listed below to be below the
objectives listed in the table below:
Soil Objective
Parameters
EP Tox
(mg/i)
Cadmium
0.05
Chromium III
1.0
Chromium VI
0.05
Lead
0.1
16
Concentrations in TCLP14
Extract
(mg/fl
1,1,1—trichloroethane
5.28
The soil samples shall be analyzed for the parameters
listed on the laboratory report sheets submitted with
the August 16,
1988,
letter from STS Consultants, Ltd.
to Mr. Gene Dingledine in addition to those identified
above.
Cleanup objectives for parameters identified
with concentrations greater than the applicable PQL
will be established by the Agency upon receipt of the
analysis results.
(Stip. at 6.)
The Agency denial letter of January 8,
1990,
specifically
addressed one deficiency with respect to Condition 12 of the May
11,
1989, approved closure plan.
(R. at 1.)
The Agency denial
letter stated:
Condition 12 of the above—referenced approved closure
plan modification stated that all additional soil
samples be analyzed for the parameters listed on the
laboratory report sheets submitted with the August 16,
1988,
letter from STS Consultants, Ltd.
A review of
the closure certification submittal revealed this was
not done.
Review of the above-referenced certification
submittal also revealed that the soils were
contaminated with 1, l-dichloroethane,
tetrachloroethylene, and trichloroethylene.
The Agency denial letter therefore alleges that Rock—Ola did
not comply with the closure plan in relation to Condition 12
because Rock-Ola did not analyze soil samples for all the
chemical parameters required by the closure plan in the final
confirmatory sampling.
Revised Cleanup Obiectives
After describing the one alleged deficiency pertaining to
Condition 12, the Agency denial letter then mandated revised
cleanup objectives by stating:
“...Review of the above-referenced certification
submittal also revealed that the soils were
‘~The
Board
notes that
TCLP
stands
for Toxicity Characteristic
Leachate Procedure.
This
is
a
standard
procedure for characterizing hazardous
wastes
in
soils.
In
this
standardized
procedure a
soil
sample is treated with
a
solvent.
Then, the
solvent
is
extracted,
and
the extract is
analyzed
for chemical
constituent concentration levels.
17
contaminated with 1, l-dichloroethane,
tetrachloroethylene, and trichloroethylene.
Due to the deficiencies referenced above, revised soil
cleanup objectives have been set for the site.
A
listing of the cleanup parameters, soil objectives, and
acceptable detection limits for analytical methods are
listed below:
Parameter
Soil Objective (ppb)
ADL15
(ppb)
l,1,l—Trichloroethane
1,000
5.0
Tetrachloroethylene
25
0.3
Trichloroethylene
25
1.2
Vinyl Chloride
10
2.0
Parameter
Soil Objective EP Tox (mg/l)
Cadmium
0.05
Chromium III
1.00
Chromium VI
0.05
Lead
0.10
A sampling and analysis plan addressing these cleanup
objectives for the location of the former container
storage area must be submitted to the Agency by March
15,
1990.
Closure certification for the facility will not be
approved by the Agency until the soil contamination has
been reduced to the objectives listed above and all of
the requirements of the approved closure plan are met.
Closure activities must be completed by August
1,
1990.
.
.
(R. at 1—2.)
The Agency denial letter clearly states that Rock-Ola
allegedly failed to perform all the chemical analyses required by
the approved closure plan.
The Agency denial letter also alleges
that the confirmatory chemical sampling showed contamination of
the site with three additional VOC5:
l,l-Dichloroethane,
Tetrachioroethylene, and Trichioroethylene.
Because the required
chemical tests were not performed, and because of chemical levels
‘5ADL stands
for “Acceptable
Detection Limit”.
ADL
is
an
Agency
term used
to
“identify the lowest
practical quantitation limit or PQL of any of the USEPA’s, SW
846
methodologies for analyzing chemicals”.
(Tr.
at
157,
158.)
“SW
846
is a compilation of
USEPA
analytical techniques for analyzing chemicals in various media.”
(Tr.
at
158.)
18
detected in the final sampling, the Agency set the revised soil
clean-up objectives.
The revised clean—up objectives give clean-up objectives for
three VOCs that were not specified in Condition 12 of the
approved closure plan.
These VOCs are Tetrachloroethylene,
Trichloroethylene,
and Vinyl Chloride.
The clean-up objectives
for Cadmium, Chromium III, Chromium IV, and Lead, are restated at
the same clean-up objective levels that were given in Condition
12 of the closure plan.
One other VOC, 1,1,1-Trichioroethane,
was given a revised cleanup objective level which differed from
the clean-up level specified in Condition 12 of the closure plan.
Summary of Proper Issues for Review
In summary, Rock—Ola’s performance of chemical sampling
(Condition 12) and the associated revised cleanup objectives were
properly raised as issues for review in the Agency denial letter.
Condition 6
(closure in accordance with closure plan) was not
specifically enumerated in the Agency denial letter, but was
raised as a general requirement.
Since Condition
6 applies to
all other Conditions,
it will be considered by the Board,
in this
review, as it applies to those aspects of Condition 12 opened for
review.
Condition
2
(independent engineer presence at major
activities)
and Condition
9
(methodology for analytical and
chemical samples) were not raised as deficiencies in the Agency
denial letter, and will not be considered by the Board in this
review.
The Board notes that the Agency Brief does not specifically
mention that the Agency denial letter frames the issues on
review.
In contrast, the Agency’s consistent position is that
the burden is on Rock-Ola to prove that its closure certification
and supporting documentation establish
(based on the record) that
final closure has been completed in accordance with the approved
closure plan.
(Res.
Br. at 12-20.)
The Board agrees with the
Agency that Rock-Ola’s RCRA closure certification documentation
must comport with the Act.
However, this burden on Rock—Ola does
not relieve the Agency of its responsibility specified at Section
39(a)
of the Act which directs that the Agency shall give
specific reasons for permit denials.
Taken to its extreme
conclusion,
the Agency position would have the Board totally
ignore the Agency denial letter, and reopen the entire permit for
reconsideration.
The Board must again point out that it is well settled that
the information in the denial statement frames the issues on
review.
(See Standard of Review,
p.4, surra)
This is required
to achieve due process for the applicant that bears the burden of
proving the appeal.
The Agency has made no pleading in this case
that Agency personnel or the extensive internal Agency review
19
process made an error by not noting deficiencies with Conditions
2,
9 and other aspects of Condition 12 in the denial letter.
As
previously discussed, the Agency had extensive internal
procedures for approving RCRA closure plans and RCRA closure plan
certifications.
That review process did not consider Conditions
2 and 9 of sufficient concern to place them in the denial letter.
For all the aforementioned reasons, the Board reiterates that the
Agency denial letter frames the issues on review:
Conditions
2
and 9 will not be addressed in this review.
Those aspects of
Condition 12 raised in the Agency denial letter will be examined.
Rock-Ola’s Arauments and Board Findings
In this appeal, Rock-Ola bears the burden to prove that no
violations of the Act or Board regulations would occur if the
closure plan certification was approved as submitted to the
Agency by Rock-Ola.
The Agency denial letter stated the Agency’s
rationale for denial, alleging that Rock-Ola did not perform all
the chemical testing required by Condition 12, and that levels of
contamination reported in the closure confirmatory soil sampling
required revised clean—up objectives.
Rock—Ola advances four major arguments in contesting the
Agency’s denial of closure certification:
1) Rock-Ola complied
with its approved closure plan
(Pet.
at 2);
2) the Agency did not
follow its normal procedures in reviewing (Pet. at 2) Rock—Ola’s
closure certification documentation
(Pet.
Br. at 12—17; Pet. Rep.
Br. at 2-5);
3) the Agency did not establish the revised clean-up
objectives in accordance with Condition 12
(Pet. Rep.
Br. at 5-
6); and 4) the Agency should be estopped from denying the closure
certification
(Pet.
Br.
at 17-20; Pet. Rep. Br. at 6-9).
Compliance with Closure Plan
Rock-Ola broadly asserts that closure was accomplished in
compliance with the closure plan.
(Pet.
at 2.)
The Agency
arguments against Rock-Ola’s assertion (Res.
Br. at 12—20) are
lengthy and bolstered by numerous citations to statutes,
regulations, and the instant record.
The Agency arguments also
call into question Rock-Ola’s compliance with Conditions
2 and
9
of the closure plan, which the Board has previously found
(see p.
14-15 su~ra) are not properly raised as issues in this appeal.
However, the Board did find that one aspect of Condition 12
is a
proper issue for review, and therefore, Rock—Ola bears the burden
of proving to the Board that the contested aspect of Condition 12
of the closure plan was met.
The contested aspect of Condition 12 of the closure plan
specified that all additional soil samples submitted with closure
plan certification should be analyzed for parameters listed on
the laboratory sheets submitted with the August 16,
1988,
letter
20
from STS Consultants.
(See R. at 289, 290.)
MAECORP reported
that eleven soil samples were analyzed for chemical constituents
after closure in 1989.
(R. at 57.)
Only one soil sample taken
had any detectable values for the twelve individual VOC5
analyzed.
(Stip.
at 11.)
The total VOC level for that one soil
sample was less than 1 ppm.
(fl.)
Comparison of the chemicals tested for after closure by
MAECORP
(R. at 66,
67) to the list of chemicals tested for before
closure by STS Consultants
(R. at 289,
290) shows that 16 VOCs’6
were not individually analyzed by MAECORP.
(R. at 99—126,
289-
292.)
MAECORP did not specifically explain why those sixteen
VOCs were not individually tested.
MAECORP did note in the “Work
Discussion” section of the Closure Documentation Report
(R. at
57) that “to
minimize the analytical cost,
it was arranged with
the laboratory to analyze the samples for total VOCs prior to
TCLP analysis.
Then,
if the total VOC levels were below the TCLP
clean-up objective level, running TCLP would not be necessary.”
(R. at 57.)
The Board’s examination of the record shows that failure to
perform tests for the individual VOC5 in this case is not
sufficient ground, by itself, to rule that Rock—Ola has not
complied with the approved closure plan.
The total VOC level was
less than 1 ppm for the one soil sample with VOC contamination
out of the eleven soil samples tested.
(Stip.
at 11.)
Fifteen
of the sixteen VOCs were not detected at any location in 1988
pre-closure plan testing by STS Consultants.
(R at 99-126, 289-
292.)
One VOC,
1,1-Dichloroethylene, was detected in two samples
at the B-105 site (Location
2. of MAECORP) that was the focus of
the most excavation activity.
(R at 289-291.)
The area around
soil borings B-lOS and B-107 were the most extensively excavated
for off-site disposal.
(Stip.
at 6,7; R. at 63.)
None of the
VOC5 tested for by MAECORP in post-closure testing were detected
at B-105.
(Location
1 of MAECORP testing,
see R. at 63,
65.)
In
addition, the Board notes that the one VOC given a clean—up
objective,
l,l,l-trichloroethane, had the highest pre-closure
concentration of 4.8 ppm at B-105D
(R. at 292),
and was not
detected in post—closure testing at that site.
(See Location
1,
R. at 65.)
In addition, the soil cleanup objectives for 1,1,1-
trichloroethane was set at 5.28 ppm in the Agency approved
closure plan.
(Stip. at 10.)
For these reasons, the Board finds
that the record shows that Rock-Ola complied with the requirement
of Condition 12 of the Closure Plan to test for the parameters
‘6Bromoform, Carbon
Tetrachioride,
Chlorobenzene,
Chiorodibromomethane,
Chiorethane,
2-Chloroethylvinyl Ether,
Dichiorobromomethane,
Dichlorodifluoromethane,
1,1-Dichloroethylene,
1,2-Dichioropropane,
Dichloropropylene (mixed),
Methyl Bromide,
Methyl Chloride, 1,1 ,2,2-Tetrachloroethane, 1,1
,2-Trichloroethane,
Vinyl Chloride.
21
listed in the data sheets presented with the August 16,
1988,
letter from STS Consultants.
AQency Procedures
Rock-Ola asserts that Agency procedures were not followed in
three major ways.
First, Rock-Ola asserts that Section 39 of the
Act (415 ILCS 5/39)
provides that Rock-Ola’s closure
certification approval should proceed by default since the Agency
failed to act on Rock-Ola’s certification of closure within 90
days of submittal.
(Pet. at 2.)
Second, Rock—Ola asserts that
the Agency failed to adhere to its
own
deadline for review.
(Pet.
Br. at 14.)
Third, Rock-Ola argues that the Agency did not
follow its normal review procedure in this case.
(Pet.
Br. at
15.)
As a remedy, Rock-Ola argues that the Agency’s actions
should lead to certification of closure by default.
(Pet.
Br. at
15.)
90-day Deadline for Permit Review.
Rock—Ola did not advance
arguments in support of its assertion that Section 39 of the Act
mandates closure certification by default if the Agency does not
act within 90 days.
The Agency properly argued that the Board
has previously ruled that the default provisions found in Section
39(a)
of the Act do not apply to RCRA permits.
(See Marathon
Petroleum Company v.
IEPA (July 27,
1989), PCB 88-179.)
Instead,
it is Section 39(d)
of the Act that applies to RCRA permits or
RCRA closure plans, matters which are in the nature of permits.
(See Testor Corporation v. IEPA (November 2, 1989),
PCB 88-191.)
Section 39(d)
of the Act contains no default provision.
Therefore, the Board finds that Rock-Ola has no regulatory basis
for requesting closure certification by default because the
Agency did not act within 90 days after Rock-Ola submitted its
closure certification.
Agency Internal Deadline for Review.
Next, Rock—Ola argues
that the Agency is bound by Agency guidelines to review closure
certification documentation in either 60 or 120 days.
(Pet.
Br.
at 14.)
The Agency’s internal review deadlines are given in the
document entitled “Instructions
for the Preparation of Closure
Plans for Interim Status RCRA Hazardous Waste Facilities”.
(R.
at 211-232.)
The pertinent section reads as follows:
Following certification of closure, the Agency will
conduct an inspection of the closed facility and review
the certification documents to ensure that the
certification meets regulatory requirements and verify
that the closure was conducted in accordance with the
approved closure plan.
This review will take up to 60
days for facilities which have established financial
assurance and as long as 120 days for other facilities.
22
(R. at 228.)
Rock-Ola points out that the Agency received Rock-Ola’s closure
certification documentation report on July 31,
1989.
(Stip. at
12; Tr. at 124.)
The Agency denial letter was issued on January
8,
1990.
(Tr. at 113-124.)
Rock-Ola argues that because the
review was not completed for 161 days,
the Agency failed to meet
its deadline, and therefore,
the Agency must approve Rock—Ola’s
request for closure certification.
(Pet.
Br. at 15.)
The Agency first argues that Agency instructions constitute
guidance and direction, but are not rules or regulations, and
thus have no legal or regulatory effect.
(See
Platolene 500 v.
IEPA (May 7,
1992), PCB 92—9; Strube v. IEPA (May 21, 1992), PCB
91—205.)
Second, the Agency argues that the issue before the
Board should be whether or not Rock—Ola’s certification and
documentation meets the specifications of Rock—Ola’s approved
closure plan.
The Agency maintains that the Board would violate
its own regulation if
it approved Rock—Ola’s closure
certification by default, without determining that Rock-Ola’s
closure certification demonstrated compliance with the interim
status regulatory requirements
(Section 725)
•17
The Board is concerned by the amount of time (161 days)
that
the Agency took to review Rock—Ola’s closure certification
documents, despite Agency published guidelines that the review
would be finished in either 60 or 120 days.’8
However, the
Agency has properly cited prior Board opinions (Platolene 500,
su~raand Strube, surra)
that Agency guidelines are not
controlling,
and the Board must look to its regulations in
deciding the issues of this case.
Therefore,
the Board will not
order the Agency to certify closure in this case based on the
argument that Agency internal deadlines were not met.
Normal A~encvReview Procedures.
Finally, Rock—Ola asserts
that an agency must consistently apply its rules and procedures,
‘7Aspreviously noted, the Board’s Section 725 interim status hazardous
waste
regulations
are
based
on underlying federalRCRA regulations, which the
Board
is required by illinois
statute to adopt as identical-in-substance regulations
into
Illinois Law.
‘8The
Board
notes that Rock-Ola
maintains
that it met the
financial
assurance
requirements which would trigger the Agency guideline deadline of60 days for review,
rather than 120 days.
(Pet. Br. at 14.) The Agency
argues with
Rock-Ola’s
assertion in
footnote #32.
(Res. Br. at 30-31.) The Agency
took
161 days to review
the
closure
certification
documentation, which is beyond either the
60-day
or the 120-day deadline.
Therefore, the
Board
does not
need
to review whether or not Rock-Ola met the financial
assurance requirements of Section
725.243,
since the Agency did not meet either the 60-day
or the
120-day
deadline.
23
and that an agency’s past interpretation of its rules and
procedures is controlling in disputes.
(Pet.
Br. at 15-16.)
Rock—Ola cites to Dean Foods as authority for both assertions.
(Dean Foods Co.
v. Illinois Pollution Control Bd.,
143 Ill. App.
3d 322,
333,
492 N.E.
2d 1344,
1352
(2d Dist.
1986).)
Rock—Ola
maintains that in the instant case, the Agency failed to adhere
to its past practices in reviewing closure certification
requests.
(Pet.
Br. at 16.)
Rock-Ola argues that the Agency did
not follow its normal procedure because the Agency has required
Rock-Ola to remediate constituents which Rock-Ola reported to the
Agency before closure.
(Pet.
Br. at 16-17.)
Although not
specifically named by Rock-Ola, the three additional VOC5 given
cleanup parameters are Tetrachloroethylene,
Trichioroethylene,
and Vinyl Chloride.
(R. at 1.)
Rock-Ola argues that the Agency
determined that “no action was required” for the three additional
VOCs because the Agency failed to include those VOC5 in the
approved closure plan after reviewing pre—closure plan chemical
sampling showing the presence of those VOC5 on the site.
(Pet.
Br. at 16—17.)
The Agency agrees with Rock—Ola as a basic principle of law
that the Agency is bound to follow its
own
procedures.
(Res.
Br.
at 27.)
The Agency takes issue with Rock-Ola’s assertion that
failure to establish specific clean-up objectives at the time of
the original closure plan approval constituted a “no action
determination”.
(Res.
Br. at 31.)
The Agency points to one
aspect of Condition 12 of the closure plan (Stip. at 10), which
states that additional clean-up objectives would be established
by the Agency if any parameters were detected at concentrations
greater than their PQL’s’9.
The Agency argues that the plain
language of Condition 12 calls for the Agency to establish
revised clean-up objectives if subsequent testing shows elevated
levels of organic contaminants.
(Res.
Br. at 31.)
Both Rock-Ola and the Agency cited testimony at hearing by
Dr. Hornshaw (Tr. at
213) to support their arguments.
Dr.
Hornshaw was a member of the Agency Clean—up Objectives Team
(COT), which provides site specific recommendations for clean—up
at various kinds of sites.
(Res.
Br. footnote 3 at 4.)
At the
Board hearing, Dr. Hornshaw was asked;
“h)ow
many times in a
permit procedure...does the same application normally go to COT?”
(Tr. at 213.)
Dr. Hornshaw replied:
‘9Practical
Quantitation Limits (PQL’s) are essentially the level at which chemicals can
be reliably detected.
Since there
are
different
analytical
techniques available for detecting
and quantifying
an individual chemical, each technique will have its ownPQL for each
chemical.
(Tr. at 158.) The Board notes that the Agency Record and Hearing Transcript
indicates that the Agency uses ADL andPQL interchangeably.
24
“Normally,
once, but if there’s ever anything detected,
not the first time through,
it can come back again and
again.
We have a couple of boomerang sites that keep showing
up as confirmation sampling is done.
For instance, to determine that the site has met clean-
up objectives, sometimes a new set of chemicals will be
discovered in the confirmation sampling and then the
project manager will bring the new information back to
COT to determine a new set of objectives.”
(Tr.
at 213.)
The plain language of Dr. Hornshaw’s testimony is contrary
to the Agency’s stated position in the instant case that
according to Condition 12, additional clean-up objectives would
be established by the Agency if any parameters were detected at
concentrations greater than their PQL’s.
Dr. Hornshaw
specifically stated that to become a “boomerang site”,
“.
.
.
a new
set of chemicals” would be discovered in confirmatory sampling.
(Tr. at 213.)
In the instant case,
the revised clean—up
objectives were made for chemicals already known at the site
(and
one that was not detected).
The Board finds that the Agency did
not follow normal procedure by submitting Rock—Ola’s
certification to COT and CROPA to establish revised clean-up
objectives for chemicals that were detected prior to closure plan
approval.
However,
as discussed in considering internal Agency
time deadlines, this Board does not consider inconsistency of
Agency procedures to lead necessarily to a clean closure
certification by default.
Revised Clean—ur Objectives
Rock—Ola argues that closure work is complete at the Kedzie
facility and that Rock-Ola remediated for those chemicals for
which the Agency established clean-up objectives.
(Pet.
Br. at
17.)
To support its arguments, Rock—Ola cites the stipulated
statement that,
“t)he
analytical data shows that the cleanup
brought the levels of contamination below the cleanup objectives
for the specific parameters established in the Agency’s closure
plan approval letter”.
(Stip. at 12.)
Rock-Ola asserts that now
that closure work is complete, the Agency “has changed its mind”
(Pet.
Br. at 17)
and has required Rock-Ola to attain clean—up
levels for chemicals reported to the Agency prior to Agency
approval of the closure plan.
In addition, Rock—Ola asserts that
the Agency has issued revised clean—up objectives that are lower
than the soil concentrations reported to the Agency prior to
closure plan approval.
(Pet.
Br.
at 17.)
Rock—Ola argues that
the imposition of revised clean—up objectives in this case is
25
arbitrary,
capricious,
and unreasonable.
(Pet. at 2.)
Rock—Ola
cites appellate authority that an administrative agency must
consistently apply its rules and procedures.
(Dean Foods Co.
V.
Illinois Pollution Control Board,
143 Ill. App. 3d 322,
333,
492
N.E.2d 1344, 1352
(2d Dist.
1986).)
The Agency argues that Condition 12 of the closure plan
gives the Agency specific authority to issue revised clean—up
objectives for chemicals detected in soil samples in
concentrations greater than their applicable PQL’s.
(Res.
Br. at
31; Stip. at 10.)
The Agency maintains that Rock-Ola’s
confirmatory soil sampling showed concentrations above PQL for
three VOCs (1,1-dichioroethane, tetrachloroethylene, and
trichioroethylene), therefore it is justified in revising clean-
up objectives.
(Res.
Br. at 31.)
In addition, the Agency
asserts that dramatic increases in the soil concentrations of
trichloroethylene and tetrachloroethylene observed when comparing
pre-closure plan and post—remediation chemical analyses showed
that Rock-Ola failed to meet Condition
6 of the closure plan.
(Res.
Br. at 33.)
Condition 6 specifies that implementation of
the closure plan must satisfy the requirements of 35 Ill. Adm.
Code Section 725.211.
(Stip. at 9.)
Further, the Agency
speculates that the dramatic increase in levels of the two
chemicals mentioned above may likely constitute “an unexpected
event” pursuant to 35 Ill. Adm. Code 725.212(c).
The Agency also argues that Board precedent (see Browning
Ferris Industries.
Inc. v. IEPA (May 5,
1988), PCB 84—136)
gives
the Agency authority to revise clean—up objectives based on
changed scientific and regulatory understanding.
The Agency
maintains that Agency understanding did change between the first
time COT met to recommend clean—up objectives and the second time
COT met and recommended the revised objectives under appeal.
(Res.
Br. at 32.)
The Agency maintains that the soil clean-up
objectives approved in the closure plan were based on a
derivation from the general use water quality standards of 35
Ill. Adm. Code 302.208.
(Res.
Br. at 32; referring to Tr. at 186
and R. at 286A.)
The Agency asserts that when COT met the second
time to review Rock—Ola, the Agency based soil clean—up
objectives on a derivation from the USEPA MCL (Maximum
Contaminant Level) and PMCL (Proposed Maximum Contaminant Level).
MCL is the maximum concentration of a specific chemical that is
not to be exceeded in drinking water.
MCL’S are established by
USEPA.
(Tr. at 159.)
The PMCL is a value that has been proposed
by the USEPA in the Federal Register.
The PMCL has not finished
going through the notice and public comment procedures necessary
to establish a federal rule.
(Tr. at 159,
160; Res. Br. at 32;
referring to Tr. at 160,
161 and R. at 8.)
After reviewing the record in this proceeding, the Board
finds that the Agency’s imposition of revised clean-up objectives
26
is unreasonable for the reasons given in the paragraphs below.
First,
there is no direct statutory or regulatory authority for
the Agency’s revised soil clean—up objective for 1,1,1—
trichloroethane.
Second, Agency imposition of revised soil
clean—up objectives for trichloroethylene and tetrachloroethylene
which were not given a clean—up objective in the original closure
plan is not supported by the record.
Third, vinyl chloride was
given a revised soil clean—up objective even though it was not
reported in any samples and was not given a clean—up objective in
the original closure plan.
Fourth,
there were nine additional
hazardous VOCs detected in soil testing prior to closure plan
approval which were not given clean—up objectives.
First,
1,1,l—trichloroethane was given a clean—up objective
of 5.28 ppm in the Agency approved closure plan.
(Stip. at 10.)
The soil testing reported by Rock-Ola prior to closure plan
approval found 1,1,1-trichloroethane present in
13 samples at
7
locations.
(R. at 101,
103,
105,
107,
109,
111,
113,
115,
117,
119,
121,
123,
125.)
Reported concentrations ranged from 0.001
(non—detect) to 4.8 ppm.
(R.
at 292.)
1,1,1-trichloroethane was
not detected in confirmatory soil sampling
(R. at 66,
72),
submitted with closure certification.
Therefore,
the record
shows that Rock-Ola achieved compliance with this clean-up
objective.
The revised soil objective for 1,1,l—trichloroethane
given in the Agency denial letter was 1.0 ppm.
The Agency denial
letter gave no explanation for revising the clean—up objective
for 1,1,1-trichloroethane.
(R. at 1—4.)
The Agency Brief
generally argues that COT revised the clean—up objective for
l,1,1-trichloroethane from 5.28 ppm to 1.0 ppm because COT
changed the basis of its derivations from Illinois groundwater
standards to federal MCL’s and PMCL’s.
However, the Board can
find no direct statutory or regulatory authority for the Agency’s
new position that soil cleanup objectives should be set at
federal MCL’s, which were developed as drinking water standards.
Therefore,
since Rock—Ola has demonstrated that the closure plan
clean—up objective for 1,1,1—trichloroethane was achieved, the
Board finds that the imposition of a revised clean—up objective
for 1,1,1-trichloroethane is not necessary to achieve compliance
with the Act or Board regulations.
Second, two of the VOC5 given revised clean—up objectives
were found in pre—closure soil testing at concentrations higher
than their respective revised soil cleanup objectives, yet the
Agency assigned no clean-up objectives in the closure plan.
Tetrachioroethylene was reported in four samples
(R. at 99,
100,
114,
124) at three bore holes
(B—lOl, B—105, B—1O7)
in soil
sampling prior to closure plan approval.
Reported
concentrations, when detected, ranged from 0.001 ppm to 0.031
ppm.
In confirmatory sampling, a concentration of 0.118 ppm was
27
detected at location
1020.
(R. at 66.)
Tetrachloroethylene was
not detected at the same site in pre—closure plan testing.
(R.
at 102,
104.)
Trichloroethylene was reported in
8 samples
(R. at
105,
107,
113,
117,
119,
121, 290,
292) at four bore holes
(B—
102, B-1O4,
B-lOS, B-106)
in soil sampling prior to closure plan
approval.
Detected concentrations ranged from 0.001 ppm
(R. at
117) to 0.050 ppm.
(R. at 292.)
In confirmatory sampling,
a
concentration of 0.832 ppm was reported at Location 10.
(R. at
66.)
Trichloroethylene was reported from the same site at a
concentration of 0.03 ppm in testing by STS Consultants prior to
closure plan approval.
(R. at 105.)
For both VOCs, the revised
clean—up objective was 0.025 ppm, which was lower than the
reported concentrations for each VOC in soil testing before the
closure plan was approved.
The Board finds that the revised soil clean-up objectives
for tetrachloroethylene and trichioroethylene are not supported
by the record.
The record does not show that the Act or Board
regulations would be violated by the occurrence of these two VOCs
at their reported concentrations.
Both of these VOC5 were known
to occur at the site in concentrations higher than the revised
soil clean-up objective issued by the Agency and yet the Agency
issued no clean-up objective in the closure plan.
As discussed
above, the Agency has cited no direct statutory or regulatory
authority for setting soil cleanup objectives at federal MCL’s
which were developed as drinking water standards.
Therefore, the
Board finds that the imposition of revised soil clean-up
objectives for tetrachloroethylene and trichloroethylene is
unreasonable because the Agency knew that the chemicals occurred
on the site prior to closure plan approval.
In addition, the
Board finds that the soil concentrations reported in confirmatory
sampling were not sufficiently high to constitute “an unexpected
event” pursuant to 35 Ill. Adm. Code 725.212(c).
Third, vinyl chloride was not detected in any soil sampling
reported prior to closure plan approval.
(R. at 99-126, 289-
292.)
No clean-up objective was set in the closure plan.
(Stip.
at 7-10.)
Rock-Ola’s consultant, MAECORP, did not specifically
test for vinyl chloride in the confirmatory sampling.
(R. at 65-
75.)
The Agency refers to vinyl chloride as a “degradation
product”
(Res.
Br. at 10,
31) and the Agency testified that vinyl
chloride is likely to move through soil and contaminate water.
(Tr. at 176.)
However, since vinyl chloride was not detected in
any pre-closure plan soil samples, and the Agency detected
several other hazardous VOCs which were not given clean—up
objectives
(next point discussed), the Board finds that the
20Location 10 ofMAECORP’s
sampling
for the closure certification testing corresponds
to site B-102 of the STS Consultants
soil sampling performed
prior to closure plan approval.
28
imposition of a revised clean-up objective for vinyl chloride i~
unreasonable and not supported by the record.
Fourth, nine additional hazardous VOC5 were detected in pre-
closure plan soil testing, yet they were not given clean—up
objectives.
The nine VOC5 and their highest reported
concentrations were:
Benzene, 0.09 ppm
(R.
at 118); Chloroform,
0.11 ppm
(R.
at 102);
1,2—Dichloroethane, 0.04 ppm
(R. at 102);
1, 1-Dichloroethylene, 0.025 ppm
(R. at 291);
Ethylbenzene,
0.102
ppm
(R. at 291); Methylene Chloride, 0.06 ppm (r. at 118);
Toluene,
0
•
083 pp
(r. at 292);
1,2—Transchloroethylene,
0.005 ppm
(R. at 105);
and Trichlorofluoromethane, 0.004 ppm
(R. at 105).
Seven of those VOCs had concentrations equal or higher than the
revised clean-up objectives set for trichloroethylene,
tetrachloroethylene,
and vinyl chloride.
SUMMARY
After careful review of the record, the Board finds that
Rock-Ola has adequately followed the RCRA closure plan of May 11,
1989,
and that the documentation submitted with closure
certification shows that Rock-Ola met the clean-up standards of
the May Il,
1989, closure plan.
The stipulated agreement
submitted jointly by both parties stated that Rock-Ola had
brought levels of contamination below the cleanup objective for
the specific parameters established in the Agency’s closure plan
letter (Stip. at 12).
In addition, the Board finds that the
imposition of revised clean-up objectives in the January
8,
1990,
Agency denial letter are not necessary to comply with the Act or
Board regulations.
In summary, the Board finds that Rock-Ola
should be issued a RCRA clean closure certification, without
conditions, by the Agency,
for Rock—Ola’s North Kedzie facility
(site SO1).
Since the Board has found that Rock—Ola’s RCRA
closure certification for the North Kedzie facility (SO1)
should
be issued by the Agency without conditions, there is no need to
rule on Rock—Ola’s estoppel arguments.
ORDER
The Agency is directed to issue the RCRA clean closure
certification without conditions for Rock—Ola’s North Kedzie
facility (site SOl).
IT IS SO ORDERED.
Chairman Claire A. Manning and Board Member Marili McFawn
dissent.
29
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above opinion and order was
adopted on the
/‘~
day of
__________________,
1994, by a
vote of
_______.
A.
Dorothy M.
Gtz?1, Clerk
/
Illinois Pole. tion Control Board
