ILLINOIS POLLUTION CONTROL BOARD
January 20,
1994
HACO,
INC.,
)
Petitioner,
)
v.
)
PCB 93—142
(RCRA Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
G. MICHAEL TAYLOR, OF LONG, MORRIS, MYERS, RABIN,
SHUFF
& TAYLOR,
AND
ROBERT V. OGREN, OF STRATTON, DOBBS
& NARDULLI, APPEARED ON
BEHALF OF THE PETITIONER~
JAMES GREG RICHARDSON AND JOHN BURDS APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R. C.
Flemal):
This matter comes before the Board upon a petition for
review filed by HACO,
Inc.,
(HACO).
HACO requests that the Board
review and reverse certain conditions and modifications imposed
by the Illinois Environmental Protection Agency (Agency)
on a
Resource Conservation and Recovery Act
(RCRA)
closure plan for a
unit at the facility owned by
HACO1
located in Atlanta,
Illinois.
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 permit2 decisions made by the Agency3.
More generally, the
Board’s responsibility in this matter is based on the system of
checks and balances integral to Illinois environmental
1
HACO
is the successor in interest to Hopkins Agricultural
Chemical Company for the facility in question.
Prior to Hopkins’
ownership,
the facility was owned by Diamond Shamrock.
Some of
the events recounted herein occurred during the name/ownership
tenure of these earlier entities.
For simplicity the name HACO
is used here for these entities.
2
The document that is the subject of the instant appeal
variously referred to both as a “permit” and as a “closure plan”.
Both characterizations are correct.
The document is
a permit in
the context of the Act and a closure plan in reference to state
and federal RCRA programs.
~ Act at Title X and Section 40.
—2—
governance: the Board is charged with the rulemaking and
principal adjudicatory functions,
and the Agency is responsible
for carrying out the principal administrative duties,
including
the issuance of permits.
In a review of contested permit conditions it is the burden
of the petitioner to prove that there would be no violations of
the Act or Board regulations if the permit were to issue without
the contested conditions.
(e.g., Browning—Ferris Industries of
Illinois,
Inc.
v. Pollution Control Board
(2nd District 1989),
179 Iii. App.
3d 598,
534 N,E.2d
616.)
Based on review of the record, the Board upholds
in part and
strikes in part the contested conditions of HACO’s closure plan.
PROCEDURAL HISTORY
HACO seeks to close
a RCRA storage building4 at its Atlanta
facility.
Pursuant thereto, HACO submitted a proposed closure
plan5 to the Agency on April 6,
1993.
On June 23,
1993 the Agency issued approval of the closure
plan, but subjected the approval to certain modifications6.
HACO here objects to certain of these modifications.
HACO filed its petition for review of the modified closure
plan with this Board on July 28,
1993.
By order of August
5,
1993 the Board accepted the petition for hearing.
The Agency record was filed on August 27,
1993.
On
September
9,
1993 the Board issued an order allowing filing of
the record instanter.
Hearing was held on October
4,
1993 in Lincoln,
Illinois,
before hearing officer Everett L.
Laury.
Both HACO and the
‘~
The unit in question is identified in the record by
various terms,
including “hazardous waste facility”,
“hazardous
waste lock—up”,
“storage shed”,
“waste storage building”,
etc.
For purposes of simplicity, the facility in question is herein
referred to as the “storage building”.
The identification number
for the storage building is 1LD084317425.
(R. at 41.)
~ The proposed closure plan occurs at pages 38—134 of the
Agency record
(R.
at
p.
38—134)
as filed with the Board on August
27,
1993.
~ The modified closure plan,
as issued by the Agency and
subject to review herein, occurs at pages 1—10 of the Agency
record
(R.
at p.
1—10)
as filed with the Board on August 27,
1993.
—3—
Agency presented witnesses.
No members of the public
participated in the hearing.
On or about October 18, 1993 HACO filed a motion with the
hearing officer requesting a 30-day extension of the briefing
schedule.
That motion was granted,
and the Agency timely filed
its brief on November 15,
1993.
HACO sought and received from
the Board by order of December
2,
1993 leave to file its brief by
December 1,
1993.
HACO’s brief was filed December 13, accompanied by a motion
to file instanter;
the instanter motion was granted by Board
order of January 6,
1994.
However,
in review of the brief,
the
Board noted that all copies as filed were missing two pages.
The
Board nevertheless reluctantly accepted the incomplete copies of
the brief as the only method of obtaining benefit of petitioner’s
summary arguments.
The Board stated in its January
6,
1994 order
that it “would allow petitioner opportunity to file a corrected
brief only upon filing a waiver of the decision deadline”.
(HACO
v. IEPA (January
6,
1994), PCB 93-142.)
Not until January
13,
1994 did HACO file a motion for leave
to supplement its brief with those two pages,
accompanied by a
waiver of the decision deadline to February 25,
1994.
However,
the January 13,
1994 documents arrived too close to January 20,
1994, the date of the previous decision deadline, to accommodate
the deliberative needs of the Board.
The Board accordingly
denies HACO’s motion to supplement its brief.
FACILITY DESCRIPTION
The facility at issue is a hazardous waste container storage
building located at HACO’s facility at 303
S.W. Arch Street in
the southwest corner of Atlanta, Logan County,
Illinois.
The
facility is part of a plant at which agricultural chemical
products are formulated.
Products produced at the plant consist
mostly of clay granules impregnated with either herbicide or
insecticide compounds;
no manufacture of either herbicides or
insecticides has occurred at the plant.
(Petition at ¶4.)
The hazardous waste container storage unit is
a building
thirty-nine feet by twenty feet in plan view.
The floor is six-
inch thick concrete;
it has a berm at the entrance and a slope
from back to front toward two thirty—gallon containment sumps.
The walls are six—inch reinforced concrete.
(Petition at ¶5.)
The building has two doors,
both of which are kept locked.
(Tr.
at 13—14.)
—4—
In pertinent part7, HACO has proposed to close the
hazardous waste container storage building using a series of
cleaning and containment methods.
These include a sequence of
sweeping,
steam cleaning, scrubbing with bleach and water,
a
second steam cleaning, and a second sweeping.
(Petition at ¶6;
R. at p.
4.)
All solid and liquid residues are to be disposed of
at a permitted hazardous waste disposal facility.
REGULATORY
FRANEWORI(
The instant matter is an appeal of a permit issued by the
Agency pursuant to authorization under Subtitle C of
RCRA.
Illinois RCRA regulations8 occur at 35 Ill.
Adin.
Code Subtitle
G.
Among other matters, RCRA regulations require closure of
hazardous waste storage facilities.
Regulations covering closure
of facilities such as here at issue occur at 35 Ill. Adm. Code
725.Subpart G.
Of particular importance is 35 Ill.
Adm. Code 725.214, which
deals with disposal or decontamination of equipment,
structures,
and soils.
In full, Section 725.214 states:
During the partial and final closure periods,
~jJ~
contaminated equipment,
structures and soil must be
properly disposed of, or decontaminated unless
specified otherwise in Section 725.297,
725.328,
725.358,
725.380 or 725.410.
By removing all hazardous
wastes or hazardous constituents during partial and
final closure, the owner or operator may become a
generator of hazardous waste and shall handle that
hazardous waste in accordance with all applicable
requirements of 35
Ill. Adm. Code 722.
(emphasis
added)
~‘
Those portions of HACO’s closure plan that have been
approved by the Agency and are not pertinent to the contested
issues at hand are not reviewed here.
8
The Board is required under the Act to adopted all federal
RCRA regulations into Illinois law.
(See Act at §22.4.)
—5—
MODIFIED CLOSURE PLAN
The provisions of the modified closure plan to which HACO
objects9 concern conditions #5,
#6,
#7,
and #9 (see R.
at p.
4-
6)
At condition #5 it is required that subsequent to cleaning
the storage building HACO provide certification from an
independent registered engineer that there are no defects
(joints
or cracks)
in the pad of the storage building that would allow
hazardous constituents to migrate through the pad.
If the
engineer so certifies, no further action, including soil sampling
or clean—up, would be required.
Condition #7 sets out a list of chemical parameters that
constitute the primary constituents of concern for the storage
site in question.
HACO contests the listing of all of the
parameters except three, acetone and the pesticides disulfoton
and phorate.
Condition #7 also establishes clean—up objectives
for the primary constituents of concern.
Conditions #6, and #9 specify the actions that would be
required if the independent registered engineers cannot certify
that the pad of the storage building is free of defects through
which hazardous constituents could migrate.
Among pertinent
matters, sampling of soil from beneath the pad would be required
pursuant to condition #6,
and soil sampling beyond the confines
of the pad to determine the “horizontal and vertical extent”
of
contaminated soils would be required pursuant to condition #9.
Condition #6 also makes explicit reference to chiordane,
methyithiouracil, and mineral spirits, three chemicals of
explicit concern in the instant appeal.
ISSUES AND BOARD FINDINGS
Integrity of the Pad
HACO’s first request
is that the Board reverse the
provision at condition #5 that requires a professional engineer’s
determination of the integrity of the storage building’s pad.
This the Board declines to do.
~ An additional issue, concerning whether a bleach/water
solution is acceptable for use in scrubbing the floor of the
facility, was also raised in the petition.
At hearing the
parties accepted use of the bleach/water solution.
Inasmuch as
this matter is no longer in contention,
petitioner has withdrawn
its appeal of this issue
(Pet.
Brief at p.
8).
—6—
It is the burden of the petitioner to demonstrate that there
would be no violation of the Act or the Board’s regulations
absent the contested provision.
HACO has not carried this burden
as regards the matter of the integrity of the pad.
An essential requirement of any RCRA storage facility is
that it be constructed, operated, and closed in such manner as to
not allow escape of hazardous materials.
(Act at Title V;
35
Ill. Adm. Code Part 725.)
In the type of facility at issue, the
pad (floor)
is the essential feature that ensures that hazardous
materials do not enter the soil and groundwater beneath the
facility.
Clearly, this essential nature may be compromised if
the pad lacks integrity:
if the pad does contain defects through
which hazardous substances can migrate, contamination of the soil
beneath the pad may have occurred.
Any such contamination would
be a violation of the Act and Board regulations.
Failure to
dispose of or decontaminate any contaminated soil would further
be a violation of the closure requirement of
35 Ill. Code
725.214.
The Board accordingly finds that HACO must demonstrate the
integrity of the storage building pad, pursuant to condition #5,
as a necessary element of its burden to close the facility in
accord with RCRA requirements and to show that there will be no
violation of the Act or of the Board’s regulations.
If the pad can be certified pursuant to condition #5, there
would be no need for this Board to proceed further on this matter
since the remaining contested conditions are evoked only if the
certification cannot be made.
Nevertheless, since the Board has
determined that certification of the pad’s integrity is required,
the Board will proceed to a review of the related contested
conditions.
Chlordane
HACO objects to provisions added by the Agency that would
require sampling and remedial action with respect to chlordane,
should the independent professional engineer not be able to
certify the integrity of the pad.
In particular, HACO contests
those provisions that would impose a clean—up objective for
chlordane of 40 parts per billion and that would require
(a)
testing for the presence of chlordane beneath the pad,
(b)
testing for the horizontal and vertical boundaries of chlordane
contaminated soil,
and
(c) excavation of chlordane—contaminated
soils.
The threshold issue here is whether there is adequate
grounds to warrant inclusion of chlordane as a primary
constituent of concern in the HACO closure plan.
The Board does
not believe that best professional judgement would so warrant.
Accordingly the Board will direct that all references to
chiordane
in the closure plan be stricken.
—7—
Chlordane is one of the family of cyclodiene’°
insecticides.
Chlordane was used for insect control on crops,
lawns, and gardens and for control of termites.
In 1977 USEPA
banned most uses of the cyclodienes based on their carcinogenic
potential and their occurrence throughout the food chain.
Use of
the cyclodienes was fully banned in April 1988.
Chlordane is strongly hydrophobic,
and hence has a low
solubility and low tendency to migrate with water.
(Tr. at 69-
70.)
Chlordane also has a strong affinity for the organic
components of soils.
In combination, these properties cause
chlordane to exhibit
a very low mobility in soils,
including a
high resistance to leaching.
Chlordane was used in the formulation of pesticide products
at the HACO facility during the 1970’s.
The typical formulation
was clay impregnated by chlordane.
The chlordane was purchased
as a liquid and held at the facility but ~
within the storage
building here at issue.
Chlordane has been
a compound of environmental concern in
the Atlanta area for a number of years.
Sampling in the early to
middle 1980’s indicated unexpectedly high chlordane
concentrations in both area soils11 and in the atmosphere.
As a
partial outgrowth thereof, a consent degree12 was entered in
Logan County circuit court requiring several actions.
In
pertinent part, the actions included soil excavation and grading,
and capping of all of the HACO site with pavement.
The only chlordane ever stored in the storage building was
in the form of chlordane-contaminated soils that had been
10
The cyclodienes also include aldrin, dieldrin,
heptachior,
and heptachlor epoxide; dieldrin and heptachlor
epoxide are degradation (oxidation) products of aldrin and
heptachlor.
~ Observed concentrations were generally in the hundreds to
tens of thousands of parts per billion
(ppb).
(Exh.
2 and 3~R.
at 75-77.)
The highest observed concentration reported in the
record is 75,000 ppb in
a sample taken at the Atlanta water tower
on property adjacent to HACO’s.
(a.)
12
The consent decree is present in the record as Exhibit
4
to the Petition.
Parties to the consent decree are the People of
the State of Illinois,
by and through the Attorney General of the
State of Illinois, and Hopkins Agricultural Chemical Co.
The
consent decree was entered on April
4,
1984.
—8—
excavated during the late stages13 of the actions dictated by
the consent decree.
(R. at 43, 57; Tr. at 17.)
The soils were
contained in sealed 55—gallon drums.
(u.)
The amount of soil
was
12 cubic yards.
(R. at 43,
57.)
The Agency engineer who
made the determination that chlordane is a primary constituent of
concern attests that he was not aware at the time he made the
decision of how chlordane came to be in the storage building
(Tr.
at 127) or of chlordane’s low solubility or propensity to attach
itself to particulate matter
(Tr. at 49).
In light of the
physical properties of chiordane and the
limited amount and the bound state of the only chiordane known to
have been in the storage building, the Board cannot find
justification for specifying chlordane as a primary constituent
of concern.
Accordingly, the Board will direct that explicit
reference to chiordane be struck from the closure plan.
HACO accedes that chlordane would be found in any
investigation beneath the pad.
(Tr. at 83.)
However, they
maintain that such chlordane is related to the earlier events
addressed by the consent decree, and not to any events associated
with operation of the storage unit.
Further, HACO contends that
to now dig up the site would be contrary to the provision of the
consent decree that orders the site to be capped; unfortunately,
HACO’s principal argument regarding the consent decree appears to
be at those pages of the HACO brief that were not filed with the
Board
(see sup~).
The Agency,
in turn, contends that the
modified closure plan would not violate the provisions of the
consent order.
(Agency Brief at p.5.)
Having found that chlordane is not properly a primary
constituent of concern to closure of the storage building, the
Board does not need to reach the matter of the relationship of
the consent decree to the modified closure plan.
Nethylthiouracil
HACO contests the inclusion of methylthiouracil among the
constituents of primary concern listed in conditions #6 and #7.
13
The exact date by which the work directed by the consent
decree was completed is not found in the record.
However,
pursuant to provision V of the work plan as attached to the
consent decree
(Exhibit I of Exhibit
4 to the Petition), all work
was to have been completed by November 1984.
Similarly,
the
dates during which the chiordane—contaminated soils were stored
in the storage building are apparently not present in the record.
However, inasmuch as the record references only storage during
the period January 1987 through July 1992
(R. at 57), the soil
storage occurred at least thirty—three months after the date of
the consent decree and twenty—six months after the work plan was
to have been concluded.
—9—
There is no record of methyithiouracil ever having been present
in the building in question.
On this basis, the Board finds that
inclusion of methylthiouracil in conditions #6 and #7
is
unwarranted and will direct that it be stricken.
The circumstances leading to the listing of methylthiouracil
are worth noting.
In its closure plan petition HACO at page
3
(see R. at 43)
specifies that wastes of waste code U164 had been
stored in the storage building; U164
is the code for
methylthiouracil.
On this basis the Agency listed
methylthiouracil in conditions #6 and #7.
However,
it is apparent that HACO was using the code U164 in
error.
At the one point in the petition where HACO gives both
the waste code
~
the chemical name it was associating with the
code,
it identifies U164 as methanol
(R.
at 57); the correct
waste code for methanol is Ul54.
Although the error that led to the listing in conditions #6
and #7 of methylthiouracil is clearly all HACO’s, the record
supports a finding that methylthiouracil should not be a
constituent of primary concern because it was never stored at the
site.
Therefore, the Board finds no reason now to perpetuate the
error.
Solvents
HACO also contests the inclusion of six solvents14 among
the constituents of primary concern listed in condition #7.
As
with methylthiouracil, there is no record of any of these
solvents ever having been stored in the building in question.
(Tr. at 19-22.)
On this basis,
the Board finds that their
inclusion in condition #7
is
unwarranted
and will direct that
they be struck.
Additionally, the listing of mineral spirits in
condition #6 is unwarranted and it will be struck.
The inclusion of the six solvents likewise appears to be
rooted in misunderstanding associated with waste code
designations.
The record discloses that HACO intended to list
acetone among the constituents that have been housed
in the
storage
building.
(see
R.
at
57.)
HACO correctly associated
acetone with the waste code DOOl due to the ignitability of
acetone.
However,
at page
3 of the closure plan
(see R.
at 43)
HACO listed only the code number DOOl.
The Agency thereafter
took the DOOl listing as grounds for concluding that the six
solvents, which also have high ignitability and are DOOl wastes,
had been stored in the building.
(Tr. at 114-115,
125.)
14
Methyl ethyl ketone, benzene,
ethyl benzene,
toluene,
xylene, and mineral spirits.
—10—
Inasmuch as the record now dispels the belief that the six
solvents were ever stored in the storage building, the Board
finds no reason for them to be listed in condition #6 or #7.
Disulfoton,
Phorate, and Acetone
The Board notes that the modified closure plan lists three
parameters, two in conditions #6 and #7 and the third only in
condition #7, that HACO does not contest and the Board will let
stand.
These are disulfoton and phorate in conditions #6 and #7
and
acetone
in
condition
#7.
Both
disulfoton and phorate have
been stored in substantial amount in the storage building, both
as liquid
(disulfoton
=
3,804 gallons; phorate
=
13,551 gallons)
and as residual solids.
(R. at 57.)
Acetone has also been
stored.
(u.)
CONCLUSION
HACO has demonstrated that the following chemicals listed as
primary constituents of concern are not essential for the closure
plan to meet the requirements of the Act and the Board’s
regulations: chlordane,
methylthiouracil, methyl ethyl ketone,
benzene,
ethyl benzene, toluene,
xylene, and mineral spirits.
HACO has not demonstrated that the closure plan can be issued
without the other contested provisions and still comply with the
Act and with Board regulations.
Accordingly, the Board will direct that the constituents in
question be struck from the closure plan.
The Agency’s
determinations with regard to the remaining contested provisions
will be affirmed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby directs that the following constituents be
struck from the conditions contained in the June 23,
1993
modified closure plan issued to HACO,
Inc.: chlordane,
methylthiouracil,
methyl ethyl ketone,
benzene,
ethyl benzene,
toluene,
xylene, and mineral spirits.
All other aspects of the
June 23,
1993 modified closure plan are hereby affirmed.
IT IS SO ORDERED.
Board Member N. Nardulli abstains.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
—11—
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the aboye-1 opinion and order was
adopted on the
~/~4-
day of
‘~‘c~-~
,
1994, by
a vote of
-~
.
/7
~
borothy M. Gq2~,Clerk
Illinois Po~U~tionControl Board
\ ,J
