1
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF: )
)
Steel and Foundry Industry Waste Landfills: )
Amendments to 35 Illinois Administrative )No. R96-3
Code 817.309 (Facility location for )
Landfills Accepting Potentially Usable )
Waste. )
The following is a transcript of a hearing
held in the above-entitled matter, at James R. Thompson
Center, Room 9-040, 100 West Randolph Street, Chicago,
Illinois, on the 24th of June, 1996 A.D., commencing at
the hour of 10:30 o'clock a.m.
BEFORE:
HEARING OFFICER AUDREY LOZUK-LAWLESS
ALSO PRESENT:
Mr. Ronald C. Flemal, Ph.D., Board Member
Mr. Anand M. Rao, Environmental Engineer
Scientific/Technical Section
APPEARANCES:
Mr. James T. Harrington
Mr. Charles W. Wesselhoft
Ross & Hardies
150 North Michigan Avenue
Chicago, Illinois 60601
on behalf of ICMA;
Sally A. Guardado, C.S.R.
17369 Highwood Drive
Orland Park, IL 60462
(708) 479-6664
2
APPEARANCES:
Ms. Judith S. Dyer
Assistant Counsel
Bureau of Land
Division of Legal Counsel
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794-9276
appeared on behalf of the IEPA;
Also Present:
Mr. Christopher S. Peters
RMT, Inc. - Lansing
2178 Commons Parkway
Okemos, Michigan 48864-3986
Mr. Michael P. Slattery
Vice President/Program Manager, Metals Industry
Board of Directors of ICMA
Residuals Management Technology, Inc. - Chicago
999 Plaza Drive - Suite 370
Schaumburg, Illinois 60173-5407
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Mr. Kenneth E. Smith, P.E.
Permit Section
Bureau of Land
Mr. Kenneth Liss
Manager - Groundwater Assistance Unit
Bureau of Land
Sally A. Guardado, C.S.R.
17369 Highwood Drive
Orland Park, IL 60462
(708) 479-6664
3
INDEX
WITNESS:
CHRISTOPHER S. PETERS
Examination by Mr. Wesselhoft ........................18
MICHAEL P. SLATTERY
Examination by Mr. Wesselhoft ........................ 7
KENNETH LISS
EXHIBITS
1 Mr. Slattery's Testimony, plus attachments ........18
2 Mr. Peters' Testimony and Exhibits ................33
3 Mr. Liss' testimony ...............................52
Sally A. Guardado, C.S.R. * (708) 479-6664
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HEARING OFFICER LOZUK-LAWLESS: I'd like to say good
morning to everyone. My name is Audrey Lozuk-Lawless and
I would be the Hearing Officer in this matter.
The matter is currently entitled: In The
Matter of Illinois Cast Metals Association, Proposed
Amendment for Existing Landfills Accepting Potentially
Usable Steel or Foundry Industry Waste at 35 Illinois
Administrative Code 814.902, Standards for Operation and
Closure.
On behalf of the Board is Board Member
Dr. Ronald Flemal sitting on my left.
And on my right is from our Technical
Unit, Anand Rao.
This hearing will, of course, be governed
by the Board's Procedural Rules for regulatory hearings.
Any evidence which is relevant and not repetitious will be
entered. All witnesses will be sworn and subject to
cross-questioning.
This proposed rule was filed by the
Illinois Cast Metals Association, ICMA, particularly at
issue in this rulemaking is their revised petition which
was filed on February 26, 1996.
Sally A. Guardado, C.S.R. * (708) 479-6664
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At today's hearing the ICMA will first
present their witnesses. We have pre-filed testimony from
Mr. Michael Slattery and, as well, from Mr. Christopher
Peters.
We will enter those into the record as
exhibits. However, you can, of course, go ahead and give
your testimony.
Questioning of those witnesses, then,
will take place, and any other witnesses that you would
like to put on, on behalf of ICMA.
Anyone may ask a question of any witness
during the questioning period. If you could just please
raise your hand and I will acknowledge you to speak up
loudly so our court reporter can hear you.
If you would, then, enter your name,
asking your question and then the organization that you
represent.
Please note that any questions that are
asked by Dr. Flemal or Mr. Rao, or myself, are not meant
to express any preconceived notion or bias, but only to
make a complete record for any Board Members that are not
currently here.
Sally A. Guardado, C.S.R. * (708) 479-6664
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After that -- ICMA has presented their
witnesses -- anyone on behalf of the Illinois
Environmental Protection Agency may then give their
testimony. We currently have pre-filed testimony from
Mr. Kenneth Liss.
And, just to note, we have one additional
hearing in this rulemaking which will be held in
Edwardsville on Wednesday at 10:00 o'clock.
Okay. So, now, we'll turn to the ICMA's
proposal.
And, Mr. Wesselhoft, would you like to
give any opening remarks?
MR. WESSELHOFT: My name is Chuck Wesselhoft. I'm
with the law firm Ross and Hardies and I represent the
Illinois Cast Metals Association.
With me at the table here is Jim
Harrington also with Ross and Hardies, Mike Slattery of
RMT who is a Board Member of ICMA, and, also, Chris Peters
with RMT.
What we plan to do today is to present a
case that will allow the siting of potentially usable
waste landfills over certain types of Class 1
Sally A. Guardado, C.S.R. * (708) 479-6664
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groundwaters. And Mike Slattery will present testimony
concerning the reasons behind the need for it. And Chris
Peters will present some justification for that.
At this point, we'll move ahead with Mike
Slattery.
HEARING OFFICER LOZUK-LAWLESS: If you could please
swear in the witness?
(The witness was sworn.)
THE WITNESS: Good morning. My name --
MR. WESSELHOFT: Sorry.
MICHAEL P. SLATTERY
called as a witness, having been first duly sworn, was
examined and testified as follows:
EXAMINATION
BY MR. WESSELHOFT:
Q. Would you state your name for the record,
please?
A. Michael Slattery.
Q. Would you state your position?
A. I'm currently vice president with RMT, Inc.
Q. Would you state your association with ICMA?
A. I am currently on the Board of Directors for
Sally A. Guardado, C.S.R. * (708) 479-6664
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the Illinois Cast Metals Association and also past
executive director.
Q. I have here a document entitled testimony of
Michael Slattery. Is this, indeed, your testimony?
A. Yes, it is.
Q. Is it true and correct?
A. Yes.
Q. Are there any corrections or additions you
would like to make to it?
A. No.
Q. Okay. Would you proceed with reading it,
please?
A. Okay. Over the past twenty years, Illinois
landfill rules have evolved from very basic prohibitions
against open dumping to the current very complex rules
designed to protect groundwater quality.
The first significant thrust in the
direction of groundwater quality protection was in the
R88-7 rulemaking.
Prior to that rulemaking, the Part 807
rules had required sanitary landfills to have in place
adequate measures to monitor and control leachate and
Sally A. Guardado, C.S.R. * (708) 479-6664
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required that an operator prove to the Agency that the
landfill would not damage or create a hazard in the waters
of the State.
The 88-7 rulemaking was a broad brush
remedy for the inadequacy of the Part 807 Rules,
Groundwater Protection Scheme. It set up three classes of
landfills and defined design and performance standards for
each class that would protect groundwater, based on the
types of authorized waste deposited into them.
The rulemaking also introduced the
concept that the degree of stringency of substantive
operating requirements should be directly related to the
type of waste placed in the landfill. This was in
recognition of the fact that disposal of different wastes
result in the generation of leachates which present a
greater or lesser threat to groundwater.
The Illinois Cast Metals Association
(ICMA) participated in the R 88-7 Rulemaking and attempted
to make a case for special consideration for foundry
industry monofills based on the nature of the waste
generated by foundries.
The final R 88-7 Part 811 rule, did not
Sally A. Guardado, C.S.R. * (708) 479-6664
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include the requested relief, but did provide the ICMA
with an opportunity to file a new rulemaking petition
specifically tied to the foundry industry monofilled
situation.
The ICMA, in conjunction with the
Illinois Steel Group, filed such a petition with the Board
which resulted in the R 90-26 rulemaking.
In the R 90-26 rulemaking, the ICMA
presented evidence concerning the nature of wastes
generated by the ferrous foundry industry and succeeded in
persuading the Board to adopt special landfill standards
for the ferrous foundry industry, Part 817, that would
allow the development and operation of monofills with
design and performance standards significantly less
stringent than those required for chemical waste landfills
under Part 811 rules.
The evidence showed that the foundry
industry waste are considerably more inert than chemical
waste and that less stringent operating standards would be
protective of the groundwater.
The main goal of the R 90-26 rulemaking
was to provide a basis under which existing foundry
Sally A. Guardado, C.S.R. * (708) 479-6664
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landfills could continue to operate and new ones could be
designed, built and operated without unnecessary costs.
As originally proposed, the R 90-26 rules
would have allowed existing Potentially Usable Waste (PUW)
landfills to continue to operate with only minimal new
restrictions: That is, final cover requirements, final
slope and stabilization requirements, leachate sampling,
low checking, and very limited locational limitations.
During the last round of R 90-26
hearings, it was pointed out that the Maximum Allowable
Leaching Concentrations (MALCs) proposed for PUW in some
cases exceeded the Illinois Class I groundwater standards.
It was suggested in pre-filed questions
that since PUW landfills would have no liner, the
potential existed for groundwater quality impacts if the
PUW landfill leachate reached Class I groundwater.
During the last hearing on the proposed
rulemaking, November 19, 1993, draft language was proposed
to limit the location of PUW landfills to geological
formations that do not directly communicate with Class I
groundwater.
R 90-26, Exhibit 64, proposed Section
Sally A. Guardado, C.S.R. * (708) 479-6664
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817.302, attached hereto as Attachment A.
During further questioning at hearing, it
was agreed that ICMA would further revise the proposed
siting criteria language.
A copy of the portion of the November
19th, 1993 transcript related to this issue is attached to
this testimony as Attachment B.
ICMA revised the draft Section 817.309
language pursuant to the discussions of the hearing at
hearing and submitted the new language as part of the ICMA
final comments for the docket R 90-26.
A copy of those comments is attached
hereto as Attachment C.
The Board determined that the new
language represented a substantive amendment to the
rulemaking which necessitated a return to first notice for
that portion of the proposal.
This new docket was designated R
90-26(b).
In the Board's First Notice Opinion,
additional questions were raised concerning the use of
aquifers in the proposed siting standard. ICMA filed
Sally A. Guardado, C.S.R. * (708) 479-6664
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First Notice comments that further revised the siting
criteria. ICMA also made it clear in those comments that
it believed the proposed siting criteria would apply only
to new landfills.
ICMA stated: "For that reason, the
proponents elected to propose limiting new PUW landfills
to sites that are sufficiently separated either by
distance or by impermeable geologic formations from any
surrounding Class I or Class III groundwater." Attachment
D, page 2.
ICMA believed that the language "shall be
located," (Section 817.309(b)) denoted a future siting
decision.
Subsequent to the adoption of the siting
criteria in R 90-26(b), it has become apparent that the
IEPA interprets Section 817.309(b) to apply to the
continued operation of existing, as well as to the siting
of new facilities. Rather than pursue this matter through
the courts, the ICMA believes that the proposal to amend
Section 817.309(b) will allow those PUW landfills to
continue to operate without creating any potential threat
to human health or the environment.
Sally A. Guardado, C.S.R. * (708) 479-6664
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ICMA is aware of several facilities in
current operation who have the potential to benefit from
this proposal. It is also believed that there are several
inactive landfills which, if the rule is changed, have the
potential to re-open.
Finally, the proposed revision will allow
new landfills to be sited in locations that are currently
prohibited, even though a landfill would have no
reasonable likelihood of adversely impacting downgradient
groundwater users.
We have prepared disposal cost estimates
for an average-sized boundary who: (1) sends its waste to
an offsite landfill; (2) operates a chemical waste
landfill; or (3) operates a PUW landfill. These are shown
in Attachment D.
Of interest to this rulemaking is the
difference between offsite disposal and disposal in a PUW
landfill. That difference is shown on page 8 of
Attachment E to be estimated at $1,327,560 per year per
landfill.
In addition, diversion of PUW wastes to
chemical waste landfills would reduce the capacity of
Sally A. Guardado, C.S.R. * (708) 479-6664
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those landfills by hundreds of thousands of tons per year.
ICMA believes the limited capacity of chemical waste
landfills should be used for more difficult to manage and
industrial waste which create a greater threat to the
environment than does PUW.
An additional benefit to this rulemaking
is the continued segregation of PUW from chemical wastes.
Since the promulgation of Part 817 in July 1994, the
Illinois Cast Metals Association (ICMA) has continued to
work with regulators and the foundry industry to promote
beneficial use of foundry sand materials. ICMA has held
several seminars to promote the new rulemaking and educate
the membership on protocol for becoming a beneficial use
participant.
ICMA has additionally sought out new
approaches to promote beneficial use on a statewide basis.
One such approach was to meet with the Illinois Department
of Transportation (IDOT) officials in the Bureau of
Materials and Physical Research Division to seek their
participation in utilizing foundry by-product materials or
highway construction material. IDOT is considering a
specification for foundry by-product material in
Sally A. Guardado, C.S.R. * (708) 479-6664
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construction backfill and indicated that they will work
with individual foundries to qualify materials for
construction use.
ICMA has initiated a contract with the
University of Illinois to conduct research on beneficial
use of foundry materials for the potential use in
improving the drainage of Illinois farm soils and the
project is underway.
The research proposal from the university
entitled: "Use of Foundry Green Sand to Improve the
Physical Properties of Poorly Drained Soils," is attached
as Attachment F and represents the scope of the project.
Substantial supplies of Potentially
Usable Waste make it easier to convince a possible
purchaser to consider the use of the material. ICMA
believes the current rulemaking effort is necessary to
promote continuation of PUW sites to assure a supply of
construction materials when needed.
The ICMA proposal presents a method
whereby existing PUW landfills may, regardless of the
underlying groundwater quality, continue to operate as PUW
landfills. The object of the current siting restriction
Sally A. Guardado, C.S.R. * (708) 479-6664
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is to protect current and potential groundwater uses.
There exist situations where PUW
landfills overlying Class I groundwater do not and cannot
impact downgradient groundwater users. This proposal will
allow the Agency to recognize that fact in its permitting
decisions.
ICMA believes that the proposed revision
will result in a net economic and environmental benefit to
the State of Illinois. It will allow existing facilities
to continue to operate and new facilities to be sited
without seeking Board approval for each siting decision.
We urge the Board to adopt the proposed
revision.
HEARING OFFICER LOZUK-LAWLESS: Thank you,
Mr. Slattery.
Mr. Wesselhoft, would you like to move to
have his testimony, plus all the additional exhibits that
are attached, entered into the record?
MR. WESSELHOFT: Yes, I would.
HEARING OFFICER LOZUK-LAWLESS: So, then, what we
will do is we'll mark Mr. Slattery's testimony, plus
attachments, as Exhibit Number 1.
Sally A. Guardado, C.S.R. * (708) 479-6664
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(Said document, heretofore marked
Exhibit No. 1 for identification,
was admitted into evidence, to wit,
as follows:)
HEARING OFFICER LOZUK-LAWLESS: Mr. Wesselhoft, you
can go ahead with your second witness.
MR. WESSELHOFT: Okay. You don't want to take
questions now?
HEARING OFFICER LOZUK-LAWLESS: When both of them
are finished, it will be easier.
And, Sally, you can swear in the witness.
(The witness was sworn.)
CHRISTOPHER S. PETERS,
called as a witness, having been first duly sworn, was
examined and testified as follows:
EXAMINATION
BY MR. WESSELHOFT:
Q. Would you state your name for the record?
A. Christopher Peters.
Q. What is your employer?
A. RMT, Inc.
Q. Could you give a brief synopsis of your
Sally A. Guardado, C.S.R. * (708) 479-6664
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educational background?
A. I have a Bachelor's Degree in Geology from
St. Lawrence University and a Master's Degree in Water
Resources Management and Geology from the University of
Wisconsin, Madison.
Q. What's the scope of your employment with RMT?
A. I am a Project Director for RMT in the Lansing,
Michigan office.
Q. What's your specialty there?
A. Hydrogeology.
Q. I have here a document entitled the "Testimony
of Christopher Peters, Hydrogeologic Testimony in Support
of Proposed Rule Changes to Illinois Solid Waste Rules for
Steel and Foundry Waste Landfills."
Is this your testimony?
A. Yes, it is.
Q. Is it true and correct?
A. Yes.
Q. Do you have any additions or changes that you
would like to make to it?
A. No.
Q. Could you give us a brief synopsis of the
Sally A. Guardado, C.S.R. * (708) 479-6664
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content of that testimony?
A. Yes.
I will read portions of this when it's
expedient to do so, but there are some attachments that
probably bear some discussion, so I will paraphrase some
of the testimony.
The following testimony has been prepared
in support of the proposed revision to 35 Illinois
Administrative Code 817.309(b). This revision would allow
the siting of Potentially Usable Waste (PUW) landfills
over Illinois Class I groundwaters, if the owner or
operator demonstrates that the unit will not adversely
impact any existing Class III groundwaters and, that as a
result to the unit's operation, no treatment or further
treatment of the groundwater will be required to allow the
reasonable use of a Class I groundwater for potable water
supply purposes.
This testimony is intended to demonstrate
there are certain hydrogeologic situations in which
existing PUW landfills pose negligible potential for
impacts to downgradient potable water supply wells or
surface water. In such situations the applicant should be
Sally A. Guardado, C.S.R. * (708) 479-6664
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allowed to site or continue to operate a PUW landfill if
the above-described technical demonstration can be made.
There are a number of existing steel and
foundry landfills which are located adjacent to a stream,
river or lake. Because of the hydrogeologic conditions
which exist in such circumstances, even if the landfill
were to generate leachate containing MALC, the MALC for
PUWs, which is very unlikely, the leachate would have no
adverse impact on groundwater or surface water.
From here on in, I would like to
paraphrase most of my testimony. I have two hydrogeologic
scenarios which I would like to discuss.
In order to make this demonstration, the
first scenario deals with a landfill, foundry or steel
landfill located adjacent to a lake, stream or river. And
we have first assembled flow and water quality data from a
representative cross-section of streams and rivers in
Illinois.
And the locations of these streams or
rivers are indicated on attachments 1, 2, and 3 in your
handout. The copy is not very clear. If anyone has any
further questions on the locations of these, I can supply
Sally A. Guardado, C.S.R. * (708) 479-6664
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that. However, the attachments do represent a good
geographic distribution across the State.
And there is an attached Table 1, which
includes stream flow and some representative quality data
from each gaging station.
For each station, we've included the 90
percent exceedence flow, followed by the period of record.
And we have chosen this flow because it was the closest to
drought or base flow situation which is the most
conservative scenario in terms of a potential water
quality impact of an adjacent landfill.
As you can see from Table 1, the gaging
system selected represents a good cross-section of stream
discharges spanning several orders of magnitude of flow.
Table 1 also includes surface water
quality data for two parameters that have been labeled as
potential constituents of concern from PUW landfills,
chloride and manganese. The maximum allowable leaching
concentration, or MALC, for each of these constituents is
greater than the respective Illinois Class 1 groundwater
standard.
For this reason and because these
Sally A. Guardado, C.S.R. * (708) 479-6664
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parameters may be expected to be in leachate generated
from foundry and steel waste, it's appropriate to consider
the potential impacts to groundwater due to leaching of
these constituents.
The purpose of presenting the water
quality data is to demonstrate that for some parameters
the quality of the receiving water may be worse than the
groundwater quality standard, or even worse than MALC for
PUW landfills. The exemption should be allowed on the
basis of water quality data alone in these cases.
Secondly, and more importantly, Table 1
is intended to demonstrate the tremendous dilution
potential and hydraulic capture potential of even very
small streams.
The final column in Table 1 shows the
stream dilution ratio or the comparison of flow of the
hypothetical contaminated groundwater into the stream
versus the flow in the stream.
And in order to arrive at the ratios
listed in the Table 1, the following conservative
assumptions were made.
In each gaging station, a PUW landfill is
Sally A. Guardado, C.S.R. * (708) 479-6664
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located adjacent to a river. The landfill is 40 acres is
size and it's 1,320 feet on each side. And, of course,
it's located above a Class I aquifer and is leaching
contaminants into the aquifer, resulting in a groundwater
contaminant plume which flows toward the river.
The aquifer parameters are as follows: A
hydraulic gradient of 0.01. Hydraulic conductivity of 1 x
10 to the negative 2 centimeters per second, or
approximately 30 feet per day.
The cross-sectional area of the plume is
100 feet in depth by 1,320 feet wide, which is, of course,
the width of the hypothetical landfill, which is equal to
132,000 square feet.
This selection of these parameters is
based on a conservative estimate of the depth of mixing in
hydraulic conductivity in the aquifer and a reasonable
value for hydraulic gradient based on experience in other
similar settings.
This value was also used as a base case
for the Illinois Cast Metals Association (ICMA) and RMT in
a report entitled "Evaluation of Compliance with IAC 620
Groundwater Quality Standards for Proposed R 90-26,
Sally A. Guardado, C.S.R. * (708) 479-6664
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Maximum Allowable Leaching Concentration," and the revised
version was presented in September 1993 by RMT.
And, finally, in our assumptions, the
discharge of contaminated groundwater to streams is
treated as a point discharge, that is, as if it were
coming out of a pipe.
Under these assumptions, the resulting
ratios of groundwater to surface water indicate that the
potential for groundwater impacts to surface water are
minimal.
Even when stream flows are very low, the
potential dilution from the stream is high. The only
exception to this, the data from Slug Run in Bryant, is an
extreme case which is theoretically impossible, since
groundwater discharge could not exceed the stream flow.
The ratios of the groundwater to surface
water flow themselves suggest that most, if not all of the
potentially contaminated groundwater flow will be captured
by the river.
Potential for impacts to potable water
supplies that might be downgradient of a landfill near a
river, as result of the effect of this hydraulic capture,
Sally A. Guardado, C.S.R. * (708) 479-6664
26
would likewise be minimal.
While it is possible for a stream or a
river to recharge the surrounding groundwater in a vast
majority of cases, the surface water body provides a
hydraulic barrier to groundwater flow.
While it's not included in the
attachments, I referenced a map of the glacial deposits in
Illinois, called: "The Quaternary Deposits of Illinois by
J.A. Lineback, 1979, Illinois Geological Survey."
This reference indicates that many of the
Illinois river valleys contain glacial outwash deposits
where the hydraulic relationship between groundwater and
surface water as described above exists.
A second hydrogeologic setting that we've
considered that might apply to a PUW landfill which is
located sufficiently upgradient of any potential receptor
wells is that any contamination expected to reach the
groundwater from the landfill is further diluted by
groundwater flow to a level where the receptor wells are
not adversely impacted.
As in the discussion above, chloride and
manganese are the two principal constituents historically
Sally A. Guardado, C.S.R. * (708) 479-6664
27
expected to be of concern with respect to leaching from
PUW landfills.
The MALCs for other potential
constituents that would leach from a PUW steel or foundry
landfill are equal to or less than the applicable
groundwater standard and, thus, these constituents would
not normally be of concern to groundwater quality.
In evaluating the potential impacts of
this second scenario we have, again, assumed a generic
environmental setting as follows: First, a 40 acre
landfill is described above, 1,320 feet on the side, that
is leaching chloride and manganese at concentrations equal
to their respective MALCs into the underlying aquifer.
For a base case, the aquifer parameters
are as follows: Again, a hydraulic gradient of 0.01.
Hydraulic conductivity of 1 x 10 to the minus 3
centimeters per second or approximately 3 feet per day.
An aquifer thickness or effective mixing
depth of 10 feet and background concentrations of 100
milligrams per liter of chloride and 0.075 per liter
manganese.
And these represent -- These
Sally A. Guardado, C.S.R. * (708) 479-6664
28
concentrations represent half of the respective
groundwater quality standard for these parameters.
Next, the recharge rate of the
contaminant is 3 inches per year, which is equal to the
recharge through the surrounding land.
Next, the contaminant plume is, again,
1,320 feet wide, equal to the width of the landfill.
And total mixing of the leachate with the
underlying groundwater is assumed.
The last assumption is, as the
contaminant plume moves downgradient in the groundwater,
it is diluted by recharge between the downgradient edge of
the landfill and the compliance boundary, which is
100 feet from the edge of the waste.
This base case scenario was equivalent to
that presented in RMTs 1993 report, "Evaluation of
Compliance with IAC 620, Groundwater Quality Standards for
Proposed R 90-26 Maximum Allowable Leaching
Concentrations."
Note that the hydraulic conductivity in
thickness or mixing depth of the aquifer is one order of
magnitude less than the first scenario. We've done that
Sally A. Guardado, C.S.R. * (708) 479-6664
29
because this provides for a more conservative analysis,
because reducing the mixing depth and hydraulic
conductivity reduces the potential dilution capacity of
the aquifer.
The output of this simple model is a
predicted concentration of chloride and manganese of the
boundary. And the results of this model are presented in
Tables 2 and 3 which are included within the text of my
testimony.
In addition to the base case presented
above, we performed a sensitivity analysis to evaluate the
effect of varying hydraulic conductivity recharge and
mixing depth.
As Tables 2 and 3 indicate, compliance is
achieved under most scenarios. Chloride concentrations
are essentially in compliance under the base case scenario
and reduced significantly with reductions in hydraulic
conductivity.
Manganese concentrations are in
compliance when the hydraulic conductivity are reduced to
1 x 10 to the minus 5 centimeters per second, which would
still be considered a Class I groundwater in Illinois.
Sally A. Guardado, C.S.R. * (708) 479-6664
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In both cases, hydraulic conductivity is
the most sensitive parameter. And this is also consistent
with what we found in our 1993 report.
A sensitivity analysis with recharge
rates was also performed using 1 inch per year, 3 inches
per year which is the base case, and 6 inches per year,
because there is very little effect due to the change in
recharge, the results aren't tabulated here. However, I
have included the calculations on the attached computation
pages.
And on page 9, we actually present Tables
2 and 3 showing the sensitivity analysis for hydraulic
conductivity and mixing depths.
As noted in the proposed revision to
Section 817.309(b), the landfill owner or operator has the
responsibility to demonstrate "that the unit will not
adversely impact any existing Class III groundwaters, and
that, as a result of the unit's operation, no treatment or
further treatment will be required to allow the reasonable
use of a Class I groundwater for potable water supply
purposes."
And ICMA believes that groundwater
Sally A. Guardado, C.S.R. * (708) 479-6664
31
modelling, similar to that employed in evaluating the two
scenarios presented in the testimony, should provide the
basis for this demonstration.
This will require the gathering of some
site-specific data, such as groundwater quality and flow
direction, soil profiles and hydraulic conductivity, plus
any other relevant site-specific information that has the
potential to impact contamination movement.
And the modelling results would be
significant to the Agency in the permit application if the
facility is permitted or in the initial facility report,
if the facility is permit exempt.
Furthermore, in making the determination
as to whether reasonable uses of Class I groundwater are
prevented, it should be recognized that "reasonable" does
not include those situations where future use of such
groundwater is not likely due to the existence of one or
more factors, such as physical or technological
impracticability, existence of deed restrictions,
et cetera, or where likely future use of such groundwater
would not be impacted due to the nature and the use.
For example, industrial use for which
Sally A. Guardado, C.S.R. * (708) 479-6664
32
treatment would not be required or for which normal
pretreatment incidental to such use would suffice.
The ICMA believes and the Illinois
groundwater rules support the concept that landfills can
be located over Class I groundwaters, provided that the
applicant demonstrates that the groundwater downgradient
of the landfill will not require treatment or further
treatment for potable water supply uses and that Class III
groundwater will not be adversely impacted.
We think that the Agency has the
technical expertise to evaluate such situations and to
take the necessary action to protect those groundwaters.
The language contained in proposed rule
817.309(b) should therefore be approved by the Board.
MR. WESSELHOFT: At this point, I would like to move
for the inclusion of Mr. Peters' testimony into the record
and exhibits.
HEARING OFFICER LOZUK-LAWLESS: Then the testimony
of Mr. Christopher Peters will be marked as Exhibit Number
2 and entered into the record.
(Said document, heretofore marked
Exhibit No. 2 for identification,
Sally A. Guardado, C.S.R. * (708) 479-6664
33
was admitted into evidence, to wit,
as follows:)
HEARING OFFICER LOZUK-LAWLESS: Mr. Peters, I would
ask, if you do have a clearer copy of Attachments 1, 2,
and 3 at your disposal, if you could submit those to the
Board to put into the record. That would be helpful.
MR. PETERS: Sure.
HEARING OFFICER LOZUK-LAWLESS: We just won't make
copies of those. Thank you.
If there are any questions of either one
of the ICMA witnesses, now, from the Agency, please?
MS. DYER: The Agency has no questions at this time.
HEARING OFFICER LOZUK-LAWLESS: No questions.
MR. RAO: Okay. I had a few questions for
Mr. Peters.
I was asked to state my name.
Anand Rao from the Illinois Pollution
Control Board. I am with the Technical Unit.
My first question deals with the proposed
language which requires the demonstration from the owner
or operator to show that Illinois would impact on Class
III and Class I groundwater.
Sally A. Guardado, C.S.R. * (708) 479-6664
34
First, I just wanted to make it clear
whether this demonstration has to be made to the Agency.
I assume that. Yes?
Would it be acceptable if we changed the
language here to say "that the owner or operator shall
demonstrate to the Agency"?
MR. WESSELHOFT: I think that's acceptable.
MR. RAO: Okay. And the proposed language does not
articulate what the demonstration entails. And I wanted
to know if it was acceptable to ICMA if we state that what
this demonstration entails, that the demonstration would
require an analytical groundwater modelling, using
site-specific hydrogeologic parameters like what's been
stated in Mr. Peters' testimony?
MR. WESSELHOFT: I think, as long as it's close to
what we've done before in the samples, I think we can
accept that, yes.
We'll prepare some language for that.
MR. RAO: Okay. Are you going to prepare it?
MR. WESSELHOFT: Yes.
MR. RAO: Okay. Then I have a couple specific
questions for Mr. Peters.
Sally A. Guardado, C.S.R. * (708) 479-6664
35
On page 3 of your testimony you state
that in certain cases where the receiving surface water
quality is worse than the groundwater quality standards,
or the MALC, that such landfills should be provided an
exemption from making demonstration, and the siting should
be allowed based purely on the water quality criteria.
I wanted to know that, in a situation
where the water quality criteria and water quality is
already degraded, wouldn't it be better to protect such
receiving waters from further degradation than to allow
for the degradation of those receiving waters?
MR. PETERS: I'm not sure I agree that it would be
further degradation.
If the groundwater quality of the water
underneath the landfill is better than that which is the
receiving water, there actually would be a net
improvement.
MR. RAO: Yes, that I agree.
But in situations where the groundwater
quality, itself, is close to the Class I standards and
then you're leaching Potentially Usable Waste MALCs, and
your testimony says when the quality of receiving water is
Sally A. Guardado, C.S.R. * (708) 479-6664
36
worse than the groundwater quality standards, are even
worse than MALC, than an exemption should be allowed on
the basis of water quality data. It was not clear to me
why you don't want a demonstration to be made in such
cases that show that the ratios are acceptable.
MR. PETERS: I'm not sure I understand what you are
asking.
If that is a background situation, the
background quality is worse than the leachate quality, it
seems reasonable to expect that there ought to be an
exemption.
And I don't know the procedural
specifics.
MR. RAO: I understand.
If the background groundwater quality is
higher than the leachate quality, than there's not much
you can do. But if the surface water quality, the
receiving water quality, is also degraded, then if you
want to place a landfill right adjacent to the surface
water, is what I'm trying to get at.
MR. PETERS: Provided that it doesn't adversely
impact the surface water, there are many advantages to
Sally A. Guardado, C.S.R. * (708) 479-6664
37
putting landfills near discharge areas, one of which,
being, that the groundwater flow is easily monitored then
and easily controlled if there ever were a problem.
MR. RAO: Now, the point I was trying to make was
just if the surface water quality is already degraded, do
you want to add more to it or not?
MR. PETERS: Maybe I'm putting words in your mouth,
but it seems to me you're asking me a policy question, and
I think that's not really what my charge is here. That
seems to be a policy question on the part of the
regulators.
MR. RAO: Okay. We'll leave it at that.
I had one more question. This is page 7
regarding your second scenario
In your modelling exercise you have used
100 feet as the compliance boundary. I wanted to know
what was the rationale for picking 100 feet? Was it based
on the zone of attenuation that you had for lowest grade
landfills?
MR. PETERS: Yes.
MR. RAO: Are you aware of the standard, the
existing regulations that 100 feet does not apply to
Sally A. Guardado, C.S.R. * (708) 479-6664
38
potentially usable waste landfills?
MR. HARRINGTON: Could you read that back?
(Whereupon, the record was read.)
MR. PETERS: No.
MR. RAO: So, how would your modelling rules change,
if the compliance boundary is much closer to the unit?
MR. PETERS: Let me explain the 100 feet a little
more.
It is based on the low risk waste zone of
attenuation, but also from a practical standpoint, in many
cases with these landfills, with the side slope berms and
exterior construction, 100 feet is sometimes as close as
you can get to the landfill to monitor it.
MR. RAO: So, on a site-specific demonstration,
like, an owner or operator of a particular landfill, will
pick his own compliance boundary, depending on how the
site-specific, you know, features are?
Is that how this demonstration works? It
may be closer than 100 feet or it may be further than 100
feet?
MR. PETERS: Could you repeat that question again?
MR. RAO: Yes.
Sally A. Guardado, C.S.R. * (708) 479-6664
39
I just wanted to know whether on a
site-specific demonstration that is required by your
amendments, would the owner or operator pick a compliance
point to make the demonstration based on the site-specific
features, whether, you know, it's not tied up with this
100 feet distance?
MR. PETERS: It is a site-specific demonstration.
As I said, we chose that because that was the -- that was
the number that was easily identifiable, but it's not to
say that that's what it would be.
If there were some other factors
involved, such as deed restrictions or physical boundaries
or something like that, it would have to be done on a
site-specific basis, the selection of the compliance
point.
MR. RAO: Okay. That's all I have.
HEARING OFFICER LOZUK-LAWLESS: Dr. Flemal?
BOARD MEMBER FLEMAL: I have a variety of things I
would like to explore in part because I think some of
these things just might be useful to have on the record.
Let me start first by going to the
proposed language that would occur at 817.309(b)(2). The
Sally A. Guardado, C.S.R. * (708) 479-6664
40
new subsection being the 2.
In response to one of Mr. Rao's questions
regarding whether you folks find it appropriate to put in
the statement to demonstrate it to the Agency, there then
raises in my mind the question of how you know that the
Agency has accepted your demonstration? How do you see
that playing out?
MR. WESSELHOFT: Well, obviously, in a permitting
situation, there would have to be a permit approval.
BOARD MEMBER FLEMAL: So, there would be, then, some
kind of affirmative decision on the part of the Agency
that you have made a successful demonstration or not,
depending on what their permit decision was?
MR. WESSELHOFT: Yes. Right.
BOARD MEMBER FLEMAL: How about in a situation where
the landfill was not permitted? Exempt.
MR. WESSELHOFT: Well, what we have done in the past
is sit down with the Agency and discuss this before we
ever moved ahead with submitting the initial facility's
report.
BOARD MEMBER FLEMAL: I would think that it would
certainly be a good business decision to not complete the
Sally A. Guardado, C.S.R. * (708) 479-6664
41
siting of a permit exempt facility until you knew that the
Agency would accept your demonstration under this point.
Do we need to have any explicit statement
of -- an Agency declaration that they accept the
demonstration or otherwise? Or is it satisfactory as
presently proposed?
MR. WESSELHOFT: Well, I think the mechanism is in
place to protect the State. Obviously, if you put in a
21(d) facility and the Agency disagrees with your
demonstration, there will be an enforcement action to stop
you from continuing.
BOARD MEMBER FLEMAL: Put another way, is it useful
for you to have on paper the Agency's determination that
you have successfully made a demonstration under this
proposed Part 2? And, if that's the case, should that be
part of the rule?
I'm not looking for a given answer here.
I'm speculating as to whether there's some additional
language.
MR. WESSELHOFT: We'll take a look at it, maybe
adding something there.
BOARD MEMBER FLEMAL: See if we need something to
Sally A. Guardado, C.S.R. * (708) 479-6664
42
help that matter.
MR. WESSELHOFT: Yes.
BOARD MEMBER FLEMAL: Also, as part of the proposed
language, there is a term which, my suspicion is, will
prevent a JCAR problem. And I simply put this out for
consideration on the part of whomever may be interested.
It's the use of the word "reasonable" in
the second part of 817.309(b)(2).
As proposed, the phrase would be: "Be
required to allow the reasonable use of Class I
groundwater."
My experience is that if JCAR finds a
word like that, the first question is what constitutes
"reasonable"? What kind of information is going to be
necessary to make an evaluation, whether it's reasonable
or not? And, at this stage, I think I'll simply ask
interested persons whether we need some flushing out of
that word or perhaps even if the word is necessary.
Now, I noticed that Mr. Peters gave kind
of a long description of what he thinks constitutes
"reasonable" in that sentence.
Do we need it in some more formal
Sally A. Guardado, C.S.R. * (708) 479-6664
43
presentation, I suppose, is one question to be asked
regarding that wording.
MR. WESSELHOFT: We can take a look at that.
BOARD MEMBER FLEMAL: I appreciate if you'd see
about that.
Also, in terms of the proposed language,
I note that in Subpart (b)(1) you make reference to an
addition or change of what is Class II groundwater to
Class III.
When we adopted this Section 817.309, now
the Board clearly identified that as Class III
groundwater. I note as, perhaps, you also have, however,
that in the published version of the rules, it is Class II
that's used. I think one of the things we're going to
have to do there is try and find some official copy and
see what the official copy is.
I would hope, perhaps, we don't have to
amend that part, but it would depend on where the
descrepancy crept in.
That was more observation than,
obviously, question.
Two questions, then.
Sally A. Guardado, C.S.R. * (708) 479-6664
44
Mr. Slattery, in your statement, you, on
a couple of occasions, I note very prominently on the top
of page 6, note that your intent in today's proposed
amendments is to allow existing PUW landfills to continue
operation, yet the place where the language is proposed to
be amended is in a part called "New Steel and Foundry
Industry Landfills."
Can we get on the record some explanation
and understanding of why it is, if we amend something
called "new," the rules for new landfills, we are also
affecting existing landfills?
Is that a question answerable now or
something you would like to think about?
MR. SLATTERY: I believe it is.
When we went through this rulemaking
change, there were existing potentially usable landfill
sites that we believed were not part of 817.309(b) and
that would apply to new potentially usable landfills.
Does that clarify it for you? I'm not
sure how --
BOARD MEMBER FLEMAL: I don't think I'm quite there
yet.
Sally A. Guardado, C.S.R. * (708) 479-6664
45
MR. SLATTERY: Okay.
MR. RAO: Could I say something, Mr. Flemal?
I looked at the rules and I found that
the existing potentially usable waste landfills regulated
and codified under 35 Illinois Administrative Code 814
cross-references back to 817 where the applicable rules
are.
Is that, maybe, the reason why you
changed 817, so it automatically applies to both existing
and new landfills?
MR. WESSELHOFT: Yes. That was the reason for it.
MR. SLATTERY: Right
Still not there?
BOARD MEMBER FLEMAL: I was aware of the section
that Mr. Rao was referring to.
I was just hoping that the record might
find some kind of succinct explanation of why amendments
to new landfills -- regulations applicable to new
landfills also complies to existing landfills?
MR. SLATTERY: I would just, again, say that there
are existing potentially usable landfills that in our
opinion should have already been in a position to take
Sally A. Guardado, C.S.R. * (708) 479-6664
46
advantage of that rule, plus any future new potentially
usable landfills would be in a position to take advantage.
BOARD MEMBER FLEMAL: Let's let that issue then rest
there.
I am correct, am I, in my understanding
that the MACL for chloride is, for potentially usable
waste landfills, 250 milligrams per liter?
MR. SLATTERY: Yes.
MR. PETERS: Yes.
BOARD MEMBER FLEMAL: Do you have any data that
shows how close to this maximum limit, 250 milligrams per
liter, one actually gets in leachates from potentially
usable waste?
MR. SLATTERY: We do, yes. We have data where
foundries have tested their waste streams.
BOARD MEMBER FLEMAL: Do you often get this high,
where you approach that maximum limit?
MR. SLATTERY: I haven't reviewed the data. I wish
I could give you the answer, but I can't.
I mean, I have it and I could look at it
and give you that answer, but I couldn't this day.
BOARD MEMBER FLEMAL: To the extent that the
Sally A. Guardado, C.S.R. * (708) 479-6664
47
modelling was done, assuming that the waste would produce
the maximum allowable leachate concentration in a worst
case scenario -- what I'm trying to get at is how
reasonable the worst case scenario actually is -- if your
concentrations are typically varying much less than 250
milligrams per liter in actual field situations, it would
imply that your modelling is indeed quite conservative.
If, on the other hand, your field
situation often shows that you are right up at the
maximum, then it implies that there's less conservatism in
your model.
MR. PETERS: Correct. And, if you notice, the
groundwater standard is set at 200.
BOARD MEMBER FLEMAL: Yes.
MR. PETERS: So there would only have to be a slight
decrease in concentration below the MALC for it not to be
an issue.
BOARD MEMBER FLEMAL: Similarly, do you have any
idea whether the MALC for manganese, which I believe is
0.75 milligrams per liter, is often achieved in a field
situation?
MR. SLATTERY: Yes. I can assure you that in both
Sally A. Guardado, C.S.R. * (708) 479-6664
48
cases, chloride and the manganese, that foundry analytical
data for waste streams that I've reviewed have met these
standards.
BOARD MEMBER FLEMAL: I understand that they have
met them, but I am interested in how close --
MR. SLATTERY: Right. I understand.
Whether it's high or low. But I can say
comfortably that they are fairly well under the standard.
I can't recall reviewing any data that would borderline.
MR. RAO: Mr. Peters, one more question.
This list to your modelling visits on
Table III, page 9, for manganese, I was looking at the
model values and all of them are higher than the Class I
groundwater quality standards. Could you comment on those
levels?
This follows what Dr. Flemal was asking
about, where exactly and what range your actual manganese
levels are, whether it's close to .75 or it was maybe
significantly lower than MALC. Could you give us a feel
for where the numbers are?
MR. PETERS: Again, as you've just heard Mike
Slattery say, he wasn't aware of data that was Borderline.
Sally A. Guardado, C.S.R. * (708) 479-6664
49
It would be -- What we've presented here is the worst case
because we are assuming that it's right at the MALC.
Having lowered these numbers by some
factor that's leaching out of the waste, the numbers, the
resulting numbers at the compliance boundary would be
consequently lowered, as well.
I can't give you an exact range, because
I don't have any data to compare it to. I'd have to do it
on a site-specific basis.
MR. RAO: Mr. Slattery, would it be possible for you
to give the Board, you know, some of the data that you
have collected over time, which can give us a good feel
for where the numbers are in the field?
MR. SLATTERY: Provide you a summary of that data or
provide you data?
MR. RAO: No. Summary.
MR. SLATTERY: Summary of the data?
MR. RAO: Yes.
HEARING OFFICER LOZUK-LAWLESS: For both chloride
and manganese.
MR. SLATTERY: Yes. We can do that.
MR. RAO: Thanks.
Sally A. Guardado, C.S.R. * (708) 479-6664
50
HEARING OFFICER LOZUK-LAWLESS: Then we will go on
to the Agency and any Agency witnesses that would like to
testify. Or, first, would you like to give any opening
remarks?
MS. DYER: I would like to give an opening.
I'd like to introduce myself. My name is
Judy Dyer. I'm representing the Illinois Environmental
Protection Agency.
With me today are Kenneth Smith and
Kenneth Liss from our Bureau of Land Permit Section.
I would ask that Mr. Liss be sworn in as
a witness at this point, after which I intend to move his
testimony be entered as if read.
(The witness was sworn.)
MS. DYER: I would move that the testimony we
pre-filed for Mr. Liss be entered as if read?
HEARING OFFICER LOZUK-LAWLESS: Do you have another
copy?
MS. DYER: Unfortunately, it seems to be missing
from our files. I'm very sorry about that.
Do you have a copy?
HEARING OFFICER LOZUK-LAWLESS: Yes.
Sally A. Guardado, C.S.R. * (708) 479-6664
51
Then we'll enter as if read, Mr. Liss'
testimony. His testimony will be marked as Exhibit Number
3.
(Said document, heretofore marked
Exhibit No. 3 for identification,
was admitted into evidence, to wit,
as follows:)
MS. DYER: Mr. Liss is prepared to answer any
questions that the Board has.
BOARD MEMBER FLEMAL: You've got to make him work
harder than he's worked so far.
HEARING OFFICER LOZUK-LAWLESS: Do you have any
questions for Mr. Liss?
MR. WESSELHOFT: We have no questions.
HEARING OFFICER LOZUK-LAWLESS: Dr. Flemal?
BOARD MEMBER FLEMAL: You've guys have been
listening to some of our questions here regarding how this
actually plays out.
Are you comfortable with some scenario
where a plant can come to you and make a demonstration?
You have some way of expressing your determination on that
demonstration?
Sally A. Guardado, C.S.R. * (708) 479-6664
52
MR. LISS: Yes. I can speak on that. Kenneth Liss.
One of the questions proposed today was
how do they envision the Agency will deal with these
determinations. The demonstration.
Once through the permitting process, the
21(d) facilities, of course, didn't come -- it does not
come to us when they build it. And when they file and
they review the document, we would notify them if we
didn't get satisfactory results. Of course, then it would
be an enforcement issue then.
That's the way we would deal with all
21(d), and, therefore, we are not opposed if you would
want to clarify in there how the demonstrations would be
reviewed by the Agency. That's fine. But, initially, we
weren't opposed to the wording that was proposed by them.
The other issue, I think, is the
reasonable -- what is a reasonable use of Class I
groundwater.
And since the rules were, of 620,
promulgated for Class I groundwater, there is a yield
determination, which is the stickler here, of 150 gallons
per day.
Sally A. Guardado, C.S.R. * (708) 479-6664
53
If you get 150 gallons per day, we,
therefore, call this formation, even if it's 6 inches, a
Class I groundwater. And we have been discussing that
with the people from ICMA as to how we do that and, if
there is anything, maybe we should propose factors or
criteria as part of this proceeding.
Myself, I usually like it as a
performance standard. And for things like this, as
technology changes or situations change, the Agency would
update their current procedures. That's why we were
unopposed to the use of "reasonableness." At this time,
we look at it as a pumping rate.
150 gallons per day in 620 -- Is it 210?
I want to look it up just so I'm accurate for the record.
620, it's Title 35, Part 620, Section
620.210 is where the 150 gallons per day is.
You can put in a well, you can reach a
formation, and there is an interpretation out there in
both the business consulting and within the IEPA that if
you pump and you get 10 gallons and you come back in a few
hours you get 10 gallons, as long as you accumulate 150
gallons, that would constitute Class I.
Sally A. Guardado, C.S.R. * (708) 479-6664
54
I would not consider that a reasonable
potential to be used as a Class I groundwater. And
discussing that with the ICMA people, we left it at
"reasonable."
Right now we're discussing internally,
and I think as part of the TACO tiered approach to clean
up objectives, which is a risk-based method for
determining cleanup objectives.
We were discussing, as a matter of Agency
procedure, setting the pumping rate at approximately 4
gallons per minute and continuous.
So if you get 150 gallons per day, of the
150 gallons, during a period of approximately 37-1/2
minutes, you would consider it to be reasonable for
someone in a rural area to spend the money, dig the well,
and, you know, set up a household on that property and fit
it with a pump. Go to the expense of 5 to $8,000. It
depends on where you are in the depth consideration. And
use that water.
We've got the 4 gallons per minute by
looking at -- based on 4 people in a household. You would
look at flushing toilets, shower heads, which are, I think
Sally A. Guardado, C.S.R. * (708) 479-6664
55
they're approximately 2.3, upwards, gallons per minute for
the most efficient. We added those up. And if somebody
were to turn the sink on while somebody was running the
shower, you would need to sustain at least 4 gallons per
minute.
Now, this isn't something I am proposing
for the rule here, but this is what we have right now as a
technical consideration from the Agency.
BOARD MEMBER FLEMAL: My concern here is not with
the fact that your professional expertise might not be
usefully brought to bear in any site-specific cases to
whether or not, quote/unquote, there is reasonable
expectation of use of Class I groundwater, but rather goes
to the concerns very oftentimes expressed by the Joint
Committee on Administrative Rules whenever we have a value
judgment kind of term.
"Reasonable certainty" is such a term
here. As you say, you would not find something
reasonable, a particular scenario. It is often felt,
however, that that kind of individual evaluation should
not be part of the rules. That the rules should
explicitly tell any person what is expected of them
Sally A. Guardado, C.S.R. * (708) 479-6664
56
without concern, as to who the person reviewing that
information is going to be.
MR. LISS: May I say something?
Okay. There is another part to this.
There are some individuals within the
Agency who feel the pumping rate should be half a gallon
per minute, since it's currently under discussion.
Based on the fact that if somebody were
to put in a dug well which might be up to 36 inches in
diameter, according to the Department of Public Health
Well Construction Code -- I can give you that. That's
Title 7, Part 920 -- that you could cross several small
formations and those wells are, basically, built for
storage. And if there isn't a potable or -- a public
water supply within 200 feet, that that situation, then,
should be protected in the Rural area.
So there are -- I understand what you're
saying and, yes, there are some other ways to interpret
that.
Just like 150 gallons per day, getting so
much gallons per hour added up, somebody would say, well,
that's still Class I. It could be considered arbitrary as
Sally A. Guardado, C.S.R. * (708) 479-6664
57
well.
MR. RAO: And in this case, the use of the term
"reasonable" is not just about yield? There can be other
factors also, isn't it?
MR. LISS: Like what?
MR. RAO: In Mr. Peters' testimony, he talked about,
you know, the factors which would constitute "reasonable"
use.
MR. LISS: Like who's going to use it? For what
purpose?
MR. RAO: Let me --
MR. LISS: The deed restrictions?
MR. RAO: Yes. So it's not just a question of
yield.
And does any changes proposed to address
this concern, can some language be put in with, say, you
know, including but not limited to a site, some of the
factors? That way it still, you know, leaves the Agency
with flexibility, but, you know, addresses our concern.
MR. LISS: Uh-hum
BOARD MEMBER FLEMAL: I think perhaps at this stage
we've sewn the seed and we will let the proponents and the
Sally A. Guardado, C.S.R. * (708) 479-6664
58
Agency think about this to see if there is any tinkering
with that word "reasonable" that the Agency has used
before.
Let me, Mr. Liss, if I might follow-up on
one additional issue.
You indicated that if I am operating a
PUW landfill and I am relying on the demonstration, but
you haven't actually accepted, I can be enforced against.
Can I head that off by coming to you
before I actually site my landfill and say "this is a
demonstration I would like to make" and do you accept it?
I'm thinking about the permitting exempt facility, rather
than --
MR. LISS: The 21(d)?
BOARD MEMBER FLEMAL: Yes.
MR. LISS: Pardon?
BOARD MEMBER FLEMAL: Would you do that for them?
MR. LISS: They can file a permit. They are not
required.
BOARD MEMBER FLEMAL: Yes.
MR. LISS: Sometimes a facility would come to us and
pre-discuss things. Sometimes they don't. So, that's, I
Sally A. Guardado, C.S.R. * (708) 479-6664
59
guess, up to the person that wants to build this or the
Company on their site, that they should bring it to the
Agency to discuss it if they feel it's something out of
the ordinary, but they're not required to, no.
BOARD MEMBER FLEMAL: Presumably, if I have an
existing permit exempt landfill, I could come to you and
say I want to continue operation or maybe even reopen an
old one and I want to do that on the basis of my ability
to demonstrate that I'm going to have no adverse impact.
Do you think you would entertain that?
MR. LISS: Yes. If they requested a meeting, we
would have a meeting with them. However, in meetings we
are required to review the information they submitted to
us. But it's not necessarily required, they would just
compile the information and submit it.
BOARD MEMBER FLEMAL: Now, suppose I'm unhappy with
the determination that I get from you and I'm still in a
permit exempt facility, do I have any recourse to appeal
your decision?
MR. LISS: I don't think its -- If it's not filed as
a permit, I guess they would just be able to go ahead and
do what they wanted to do and the ball would be in our
Sally A. Guardado, C.S.R. * (708) 479-6664
60
court to enforce against them, as opposed to in a permit
scenario where we would deny.
BOARD MEMBER FLEMAL: Yes.
MR. LISS: The ball would be in their court to seek
an appeal.
Correct?
MR. SMITH: Right.
HEARING OFFICER LOZUK-LAWLESS: Does the Agency have
anything else they would like to put on the record?
MS. DYER: Not at this point.
HEARING OFFICER LOZUK-LAWLESS: Okay. Then, what we
would like to see happen is perhaps some of the things
that we discussed and issues left open, for example, the
demonstration requirement, or getting to the
reasonableness language.
If we could have something that you could
propose to us by Wednesday, if that sounds like a
sufficient amount of time.
And what we would like to do, given
ICMA's revised proposal and considering that this
rulemaking will now be under Section 817, instead of 814,
we'd like to change the caption to now read: "In The
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61
Matter Of Steel and Foundry Industry Waste Landfills:
Amendments to 35 Illinois Administrative Code 817.309,
Facility Location for Landfills Accepting Potentially
Usable Waste."
And if you could note that caption on any
future filings in this matter, that would be fine.
Like I mentioned earlier, we will be
having the next hearing in Edwardsville at 10:00 o'clock
at the Madison County Administrative County Board Room.
Anything else?
Okay. Then this matter is adjourned.
Thank you.
(HEARING CLOSED.)
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62
STATE OF ILLINOIS )
) SS:
COUNTY OF C O O K )
Sally A. Guardado hereby certifies that she
is the Certified Shorthand Reporter who reported in
shorthand the proceedings had in the above-entitled
matter, and that the foregoing is a true and correct
transcript of said proceedings.
Certified Shorthand Reporter
Notary Public, County of Cook, State of Illinois
Sally A. Guardado, C.S.R. * (708) 479-6664