ILLINOIS POLLUTION CONTROL BOARD
May 20,
1993
LONE STAR INDUSTRIES,
)
Petitioner,
v.
)
PCB 92—134
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
SAMUEL T.
LAWTON,
JR.
AND MARY
BETH DEBORD OF ALTHEIMER & GRAY
APPEARED ON BEHALF OF THE PETITIONER;
JAMES
C. RICHARDSON APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on a petition for
variance filed on September
17,
1992 and an amended petition
filed on January 29,
1993,
by Lone Star Industries
(Lone Star).
Lone Star
is requesting a variance from the following sections of
Subtitle G of Title 35:
section 814.302(a), section 811.313,
section 814.302(b) (1),
section 811.103(b), section 811.314,
section 811.320(d),
section 811.317, section 815.202(a),
section
815.203(b),
section 812.316 and section 811.110(d).
The Environmental Protection Agency
(Agency)
filed its
variance recommendation on the first petition on November
9,
1992.
Hearing was held November 12,
1992 in Oglesby,
Illinois.
On December 30,
1992, Lone Star filed a response to the Agency’s
recommendation which for the first time presented details of an
alternate compliance plan.
The Board refused to consider Lone
Star’s response because it was untimely and instructed Lone Star
to file an amended petition if it wished to pursue an alternate
plan to that presented in the variance petition.
Lone Star filed
an amended petition on January 29,
1993.
The Agency filed its
variance recommendation instanter on March 22,
1993.
A second
hearing was held on March 24,
1993.
The Agency filed its brief
on April
19,
1993.
Lone Star filed a response to the Agency’s
brief on April
22,
1993.
Members of the public attended both
hearings.
Lone Star filed a motion to correct typographical and
recording errors in the transcript of the March 24, 1993 hearing.
The motion to correct typographical and recording errors in the
March 24,
1993 transcript
is granted.
0
~.2-Q5t45
2
BACKGROUND
Lone Star operates
a portland cement manufacturing plant and
associated quarry
in Oglesby,
Illinois.
(Am. Pet. at 2.)
The
plant has been in operation for over 100 years.
(Tr.
at 19.)
Lone Star purchased the facility in
1982.
(Tr.
at 19.)
The plant
covers over 3,000 acres.
(Tr. at 18.)
The facility employs 105
people with a payroll of three and a half million dollars.
(Tr.
at 18.)
Lone Star is presently in bankruptcy under Chapter 11
protection.
(Tr.
at 48.)
A by—product of the cement manufacturing process
is cement
kiln dust (CKD),
a portion of which is deposited in a landfill on
Lone Star’s property.
(Am.
Pet.
at 2.)
About 95
of the CKD
produced is returned to the process.
(Am. Pet.
at 36.)
In 1992,
Lone Star disposed of about 6,000 tons of kiln dust in the
landfill.
(Am. Pet. at 12.)
The amount of CKD landfilled in
future years will depend upon cement production and newly
discovered uses for CKD.
(Am.
Pet. at 12.)
The landfill
is
located in a quarry on the southeast bank of the Vermilion River,
directly across from the industrial complex.
(Am. Pet.
at 12.)
The western end of the landfill was closed off by the
construction of an earthen berm across the middle of the quarry.
(Am. Pet.
at
13.)
It was Lone Star’s intention to completely
fill this area with CKD and other rubble and debris
from the
plant.
(Am.
Pet.
at 13.)
However,
a portion of this area has not
been filled.
(Am. Pet.
13.)
The depression behind the earthen
berm traps water that runs off from the fill area and surrounding
upland areas.
(Am.
Pet. at 13.)
Well samples from the landfill indicated that there was a
mound of water in the landfill.
(Am.
Pet. at 14.)
The water
samples showed a number of constituents associated with CKD waste
and was therefore considered to be leachate.
(Am. Pet. at 14.)
Additional testing showed that the saturated areas around the
landfill were primarily the result of the presence of the
landfill and not a natural or normal groundwater system.
(Am.
Pet.
at
15.)
The landfill appears to be separated from the
groundwater table by
a thick formation of shale that is
essentially impermeable.
(Am.
Pet. at 15.)
Water from the landfill was found to be migrating from the
landfill through a seep from the bluff on the northwest side of
the landfill.
The flow was caused by horizontal movement of the
leachate above the shale layer that formed the base of the
landfill.
(Am. Pet.
at 15.)
This seep discharges a small volume
of water that trickles down the face of the bluff above the
Vermilion River.
(Am.
Pet. at 6.)
The hydrogeology report shows
that 3,400 gallons per day,
or 2.53 gallons per minute,
are
seeping from the pit.
(Exh.
4 at 20.)
It appears that all of the
water is absorbed by the vegetation on the hillside, but it is
0
I 1~2-Q516
3
possible that some could be discharged into the Vermilion River.
(Am. Pet. at 6.)
Pursuant to the exemptions found in the Environmental
Protection Act at 415 ILCS 5/21(d)
(1992)
no permit is required
for the landfill.
(Am.
Pet. at
2.)
However, the landfill is
subject to the environmental protection standards and reporting
requirements found in 35
Ill.
Adm. Code 810
-
815.
(Am. Pet.
at
2.)
The landfill regulations require existing landfills to have
closed by September 18,
1992 or comply with the stricter
operating,
closure and post—closure care standards of Subpart C,
for landfills remaining open for more than seven years or Subpart
D, for landfills remaining open between two and seven years.
(35
Ill. Adm. Code 814.)
Prior to March 18,
1992, Lone Star notified
the Agency that it intended to close the landfill before
September 18,
1992.
(Am.
Pet.
at 3.)
On September 16,
1992, Lone
Star submitted a revised notification to the Agency indicating
that it intended to continue use of the landfill beyond September
18,
1997.
(Am.
Pet. at 3.)
The change in plans was due to
further investigations by Lone Star to assure compliance with
existing regulations.
(Am. Pet. at 3.)
Variance Request
Lone Star is requesting a variance from the following
regulatory requirements:
1.
Sections 814.302(a)
and 811.313
*
Minimum of one foot
cover within 60 days of waste placement extended to
December 31,
1992.
2.
Section 814.302(b) (1)
—
Installation of a leachate
management system extended to December 31,
1994.
3.
Section 811.301(b)
—
Diversion of runoff from
undisturbed areas extended to December 31,
1992.
4.
Section 811.314
—
Installation of
a final cover system
that meets all stated design standards extended to one
year after final Board action on an adjusted standard
petition or rule change,
or determination by the Board
that the proposed final cover system meets the
requirements of the existing rule.
5.
Section 811.320(d)
—
Requirement for setting background
concentrations for groundwater extended to 120 days
after final Board action on an adjusted standard
petition or rule change, or determination by the Board
that the requirement is non-applicable.
11
4
6.
Sections 811.317, 815.202(a),
815.203(b)
and 812.316
—
Completion of groundwater impact assessment and
submittal as part of Initial Facility Report extended
to December 31,
1994.
7.
Sections 815.202(a),
815.203(b)
and 811.110(d)
—
Completion and submittal of
a written Closure Plan as
part of an Initial Facility Report extended to 120 days
after final Board action on an adjusted standard
petition or rule change modifying the applicable
requirements for the final cover system.
8.
Section 811.309(c) (4)
—
Basins will be constructed with
liners to control seepage to groundwater extended to
180 days after Board action on an adjusted standard
petition or rule change, or determination by the Board
that the requirement is non-applicable.
Agency Recommendation
The Agency notes that because this
is a site for which no
permit is required it does not possess the same volume of site—
specific information that would be available with a permitted
site.
(Rec.
at 2.)
However, the Agency bases its recommendation
on information from two site visits in the past two years.
(Rec.
at 2.)
In the Agency’s recommendation on the amended petition,
the Agency supported its prior recommendations and comments
submitted on the first petition and at hearing.
The Agency
recommends that the variance be granted subject to the following
conditions:
A.
The minimum one foot of cover shall conform to the
requirement specified in 35 Ill. Adm. Code 807.305(b).
B.
Within 120 days of the granting of this variance, Lone
Star shall apply for and receive a permit from the
Agency’s Bureau of Water, Permit Section, to discharge
waste waters collected from the western pit to a
treatment facility.
Additionally, the treatment
facility shall apply for and receive a supplemental
permit from the Agency’s Bureau of Land,
Permit
Section.
The waste waters shall be manifested to the
selected facility for treatment during those cold
weather months when it is not used in the production
process or for those waste waters which are unused in
the process.
In any event,
the pit shall be completely
de-watered within 90 days from the issuance by the
Agency of these permits, and shall be so maintained
throughout the term of this variance.
C.
Sodium and the Field Parameters listed below shall be
added to the quarterly groundwater sampling list.
0
L~2-05i.8
5
—
Bottom of well elevation (feet reference mean sea
level) to be reported annually.
—
Depth to water
(feet below surface).
-
Depth to water
(feet from measuring point).
—
Elevation of groundwater surface
(feet reference
mean sea level).
D.
For the first quarter of sampling only.
Lone Star
shall conduct a broad volatile organic scan on samples
of leachate removed from leachate wells NW-l,
NW—2 and
NW-3.
Any parameter detected in this scan shall be
added to the routine quarterly groundwater sampling
list as well as any transformation or degradation
products that could be derived from these constituents.
The Agency contends that the entire contents of the pond are
considered as leachate due to stormwater runoff from the landfill
and stormwater infiltrating the landfill and then exiting through
the pond side.
The Agency proposes condition B because such
leachate ponds are archaic in light of modern waste management
practices and current standards seek to insure that a minimum
amount of leachate contaminates the environment.
The Agency
contends that the best course of action is to de—water the pond,
keep
it de-watered and ultimately fill
it with appropriate fill
materials.
As an alternative, the Agency recommends that the
pond be treated as a component of the site’s
leachate management
system and meet the requirements of
35 Ill. Adm. Code Part 811.
The Agency recommends the additional testing in condition D
to discover what contaminants are present at the site and obtain
a better understanding of what is occurring at the site.
The
Agency contends that this will permit tracking of the
concentrations of the substances to determine the need for any
corrective or remedial action.
The Agency maintains that the
benefits obtained from this condition far outweigh its costs.
Lone Star’s Response to the Agency’s Recommendation
Lone Star does not object to conditions A and C.
(Tr. at
131.)
Lone Star proposes an alternate method of de—watering the
pond to the off-site disposal recommended by the Agency in
condition B.
Lone Star contends that the testing requirements
imposed in condition D exceed the monitoring requirements imposed
by the regulations.
Lone Star contends that condition B is not necessary and
proposes de-watering the pit by using the water
in its
manufacturing process.
The water will be used in the production
process as quench water, substituting for river water.
(Am. Pet.
at 28.)
The quench water is totally evaporated in the process of
cooling kiln exhaust gas before it enters the electrostatic
precipitator.
(Am. Pet. at 28.)
With modifications to the
6
pumping system,
up to 80,000 gallons per day of water can be
pumped from the pit.
(Am.
Pet.
at 28.)
At this rate,
Lone Star
figures that 150 days will be needed to use the estimated 12
million gallons of water.
(Tr.
at 221.)
However, due to
maintenance shut downs and operation at lower rates, more than
150 days will be required.
(Tr. at 222.)
Lone Star estimates
that the de-watering should be completed by the end of 1994.
(Tr.
at 251.)
Lone Star contends that off-site disposal does not
allow Lone Star to evaluate how well this leachate utilization
concept works or the time required to de—water the pond.
(Tr.
at
224.)
Lone Star argues that off-site disposal of the water is
infeasible from a cost standpoint.
(Am.
Pet.
at 35.)
Lone Star
further argues that off—site disposal would create a new burden
of noise, vibration and diesel exhaust for the areas of Oglesby
adjoining and along highways leading into the plant.
(Am. Pet.
at
34.)
Lone Star also contends that off-site disposal would cause
fugitive dust emission because much of the transport route
is
unpaved.
(Am. Pet.
at 34.)
Lone Star notes that with off-site
disposal the water will probably end up in the Illinois River,
with no resulting environmental benefit.
(Am.
Pet. at 34.)
Lone Star contends that the monitoring presently employed at
the site is in complete accord with the applicable regulations.
Lone Star contends that the proposed condition is gratuitous and
irrelevant to the terms and conditions of the variance.
Lone
Star notes that samples from the three monitoring wells were
tested for the parameters referenced
in 35 Ill. Adm. Code
811.202.
Forty-four parameters were tested including thirteen
organics.
The results were used in developing a monitoring
program at the site and the results were supplied to the Agency.
Lone Star contends that the list of parameters requested by the
Agency exceeds what is necessary and reasonable for a
nonhazardous waste landfill.
Lone Star notes that it is not
seeking a variance from any of the monitoring requirements.
DISCUSSION
The Agency has recommended granting the variance with
certain conditions.
Lone Star agrees to all but two of the
conditions.
At issue are the process to be used for de—watering
the pond and the monitoring of certain parameters in groundwater
testing.
De—watering of Leachate Pond
While Lone Star has provided some estimate of the amount of
time that will be required to de-water the pond,
it has noted
that it is not known exactly how much water is in the pond or how
much water the manufacturing process will consume.
(Am. Pet. at
(H L~.2-Q55O
7
28.)
The de-watering of the pond is also dependent on weather
conditions.
Lone Star will not use the water from the pond
during periods of cold weather and the volume of water in the
pond increases from stormwater run-off.
While Lone Star has used
the leachate from the pond in its process,
it was at a lower rate
and only for a limited time.
The Agency’s proposal requires Lone Star to obtain
a permit
within 120 days and then to de-water the pit within 90 days of
receipt of the permit.
Lone Star estimates that it can de-water
the pond by using the water in
its manufacturing process
in 150-
200 days.
Modifications to the pumping system,
to increase the
capacity to 80,000 gallons, were to be completed in April
of
1993.
(Am.
Pet.
at 29.)
The major difference in the two proposed procedures is the
time required to de-water the pond.
The Agency proposes de-
watering the pond in 90 days but has allowed Lone Star 120 days
in which to obtain the necessary permits.
Use of the leachate in
the process system will require a longer period of time to de—
water the pond.
However, based on the estimates provided by Lone
Star,
if the system operates near full capacity and is not
subject to excessive shut—downs due to cold weather or
maintenance, de-watering can be completed in 150 days.
The Board
considers this to be an insignificant time difference.
The Agency does not claim that the use of the water as a
quench water
in the manufacturing process creates any adverse
environmental impact.
In support of off-site disposal the Agency
states that it seeks to ensure that a minimum amount of leachate
contaminates the land,
groundwater or other waters of the state.
The extent of any contamination to the environment from the
leachate pond
is not presented in the record.
After considering the time difference, the costs of off—site
disposal and the environmental impacts the Board finds that
condition B as recommended by the Agency is not necessary.
Therefore, the Board will not impose condition B.
However, the
Board finds that it is necessary to set a date certain for the
complete de—watering of the pond and for the pond to remain de—
watered throughout the term of the variance.
Therefore,
the
Board will allow additional time for Lone Star to pursue de-
watering of the pond by using the leachate as quench water.
The
pit shall be completely de—watered by March 31,
1994.
The Board
will require Lone Star to apply for and receive a permit prior to
December 31,
1993,
if it appears that the use of the leachate in
the process system will not result in the de-watering of the pond
by March 31,
1994.
The Board notes that this revision to condition B allows
Lone Star additional time in which to de-water the pond by using
the water in its manufacturing process.
The condition,
as
8
L~-Ø55
I
8
imposed by the Agency, would have required that the pond be
completely de—watered by December
16,
1993.
The condition
contained in the variance will allow Lone Star to pursue de—
watering by returning the water to its manufacturing process for
approximately six months.
Based on the results of this process,
Lone Star must determine prior to December 31,
1993 if off-site
disposal is necessary to completely de—water the pond by March
31,
1994.
In effect, the Board’s decision may delay the Agency’s
requested completion date by a maximum of 105 days; dewatering
may
in fact be completed at or ahead of the Agency’s requested
schedule.
If off—site removal
is required Lone Star must timely
apply for and receive the necessary permits.
Regardless of which
method or combination of methods
is used to de-water the pond,
Lone Star must completely de-water the pond by the set date.
Groundwater Monitoring
The Board finds that the monitoring requirements imposed by
condition D are consistent with the type of variance sought and
would be beneficial in determining any environmental impact at
the site.
Lone Star by this variance is seeking additional time
to prove alternate methods in the operation of the CKD landfill
than those contained in the regulations.
As it is unknown what
effect these alternate methods may have on the groundwater,
additional monitoring would be beneficial
in detecting any
possible contamination to the groundwater.
The Board finds that
the monitoring condition is relevant to the variance requested.
The additional testing is warranted due to the extent of the
variance and the nature of the landfill.
The Board also finds
that performing a broad volatile organic scan on the first
quarter sampling is reasonable.
The Board notes that the previous testing performed by Lone
Star of the leachate in accordance with Section 811.202 was to
determine the contaminants in the leachate of an inert waste
landfill.
Based on these samples it was determined that the
landfill cannot be classified as an inert waste landfill.
Section 811.319 describes the groundwater monitoring program for
putrescible and chemical waste landfills.
Monitoring the
groundwater for constituents that appear in the leachate
is
consistent with the requirements in Section 811.319(a) (2) (A).
Section 811.319(a) (3) (A)
requires the monitoring of each well for
a broad range of organic chemical contaminants.
The Board notes
that the groundwater monitoring system used by Lone Star must
meet the requirements of Section 811.319.
While the Board finds this condition to be reasonable, the
Board recognizes that automatically adding all parameters
“detected” in a single organic scan of the leachate to the
routine groundwater sampling list may create an overly expansive
testing protocol.
The Board notes that the regulations,
at 35
Ill. Adm. Code 811.319(a) (4) (A)—(B) require use of the practical
0
L.2-0552
9
quantitation limit
(PQL),
and provide for confirmation testing
procedures on a subsequent sample within 45 days.
Absent actual
testing data,
the Board is unable to determine whether a conflict
will arise between testing protocols recommended by the Agency in
this variance and testing protocols contained in the Board
regulations.
Lone Star will be required to conduct the leachate testing
with detected parameters added to the routine groundwater
sampling protocol,
as requested by the Agency.
Lone Star will be
free to conduct confirmation leachate testing procedures on a
subsequent sample within 45 days.
If Lone Star believes
appropriate analytical and statistical analysis of the leachate
testing results leads to a conclusion on parameters necessary for
long term groundwater monitoring which is different than required
under the Agency condition,
it may request relief from the Board.
Lone Star is free to file for relief from final order,
based upon
newly discovered evidence, pursuant to 35 Ill. Adm. Code
101.301(b)(l).
The Board specifically waives
in this instance
the requirement that such analytical evidence must have been
available at the time of hearing.
In any such motion the Board
would need verified cost data on analytical testing expense to
make an appropriate determination.
To date,
Lone Star has not
supplied such testing cost data.
Retroactive Application
Lone Star is requesting a variance from the requirement of
one foot of cover and the diversion of run—off to be extended
until December
31,
1992.
Lone Star notes that the work in these
areas
is substantially complete but additional work may be needed
after settling has occurred.
(Tr. at 73.)
Lone Star notes that
at the time of the filing of the first petition the work was
underway or steps were being taken to get it underway.
(Tr. at
73.)
Lone Star chose the December 31,
1992 date to allow for
delays and weather conditions.
(Tr. at 74.)
As the date
requested for the expiration of the variance has already passed,
retroactive application of the variance would be required.
As a general rule,
in the absence of unusual or
extraordinary circumstances, the Board renders variances as
effective on the date of the Board order in which they issue.
(citations omitted).
(Modine Mfg.
Corp.
v. IEPA (July 25,
1991)
PCB 88—25.)
A variance is not retroactive as a matter of law,
and the Board does not grant variance retroactivity unless
retroactive relief is specially justified.
(citations omitted)
(Deere
&
Co.
v.
IEPA (September 8,
1988), PCB 88—22,
92 PCB 91,
94.)
In Modine Mfg. Co.
v.
IEPA,
(December
22,
1987), PCB 85-
154,
84 PCB at 739-40, the Board granted a variance retroactive
to the date of filing but stated:
Moreover, the Board is displeased with a request for a
01 L~2-O553
10
variance which has a term, but for a few days,
which is
after the fact.
While the Board allows that there may
be circumstances where the latter condition might
validly arise,
it also believes that after-the—fact
grants of variance are generally inconsistent with the
intent of variance relief as enunciated by the
Environmental Protection Act.
At the minimum,
it is
not the intent of a variance to legitimatize past
failure to comply with rules and regulations.
Lone Star notes that failure to grant the request will
expose Lone Star to potential enforcement actions.
(Am.
Pet. at
38.)
Lone Star contends that it has been diligent in moving
ahead toward compliance but the time allowed by the regulation is
insufficient.
(Am.
Pet.
at 38.)
The Board finds unusual circumstances existed in this
matter.
Lone Star’s last minute change in plans to continue
operation of the landfill considerably shortened the time for
Lone Star to plan and comply with the regulations.
Further, the
complex nature of the site raises additional considerations in
achieving compliance.
Therefore, the Board will grant a
retroactive variance from these provisions.
Expiration of Variance
The Board will not grant a variance for an indefinite period
because by statute the duration of a variance
is limited to five
years.
(415 ILCS 5/36(b)
(1992).)
Lone Star is requesting that
variance be granted for an indefinite period in requests 4,
5,
7
and 8.
The duration of the variance requested by Lone Star in
4,
5,
7 and
8
is subject to some action on the part of the Board
(i.e., adjusted standard, rule change or Board determination).
However, due to the nature of the variance and the method of
compliance that Lone Star plans to follow, the Board can infer
that compliance may be possible by means other than an adjusted
standard or rule change within the maximum five year term of a
variance.
The Board will grant the variance requested in 4,
5,
7
and
B for a term of two years.
The Board believes that two years
is a sufficient time period for Lone Star to pursue an adjusted
standard, rule change or other form of relief to obtain
compliance.
Declaratory Judgment
Lone Star seeks a determination from the Board on final
cover composition and conditions.
Lone Star has requested the
Board to determine whether CKD
is an acceptable alternative for
cover consistent with the regulations.
The Board will make no
determination on this subject.
The Board notes that the Agency
has not provided any comment on the use of CKD as a cover.
The
Board finds that the record does not contain sufficient
(_.
0
L~,-U3bL~
11
information on the use of CKD as a cover material for the Board
to determine if
it
is suitable for use as an equivalent cover.
This type of determination is inappropriate for a variance
proceeding.
Lone Star is free to pursue this matter in an
adjusted standard or a site—specific rule change.
Similarly, Lone Star seeks approval from the Board on the
installation of its monitoring wells and the need for a liner on
the leachate pond.
The Board will not address these issues in
this opinion and order but leaves these matters to be addressed
in other proceedings.
Hardshk~
In considering any variance the Board determines whether a
petitioner has presented adequate proof that immediate compliance
with the Board regulations at issue would impose an arbitrary and
unreasonable hardship.
(415 ILCS 5/35(a)
(1992).)
Furthermore,
the burden of proof
is upon the petitioner to show that the
claimed hardship outweighs the public interest in attaining
compliance with regulations designed to protect the public.
(Willowbrook Motel v. Pollution Control Board
(1977),
138 Ill.
App.
3d 343,
481 N.E.2d 1032.)
Lone Star contends that the site conditions make achievement
of full compliance with all regulatory standards in the specified
time frame an unreasonable hardship.
Lone Star argues that there
is not enough time to make a precise prediction of the impact of
the leachate management system.
Lone Star notes that additional
time is needed to complete the Groundwater Impact Assessment and
the Closure Plan because the information is not yet available.
Lone Star maintains that additional time is needed to develop its
alternate design and to demonstrate its merits.
Compliance Plan
A variance by its nature is a temporary reprieve from
compliance with the Board’s regulations.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d
684.)
A variance petitioner
accordingly is required, as a condition to grant of variance, to
commit to a plan that is reasonably calculated to achieve
compliance within the term of the variance.
(City of Nendota v.
IPCB
(1987),
161 Ill.
App.
3d 203,
514 N.E.2d 218.)
Nevertheless, the Board has found that in some exceptional
circumstances, variance may be granted even though petitioner
does not have a final compliance plan.
Included have been the
circumstance where technology for compliance did not exist,
and
petitioner sought the time provided under the variance to search
for new technologies
(e.g., Mobil Oil v. IEPA
(Sept.
20,
1984),
PCB 84—37,
60 PCB 99; IPC,
Clinton Plant v. IEPA
(May 22,
1989),
PCB 88-97,
100 PCB 181); where additional time was necessary for
a proper assessment of environmental impact (e.g., Amerock v.
0R2-0555
12
IEPA (Nov.
11,
1985),
PCB 84—62,
66 PCB 411; Zeigler Coal
v.
IEPA
(Aug.
22,
1991),
PCB 91-12,
125 PCB 331); or where the term of
the variance was of an exceptionally short duration (e.g.
General
Motors
—
Electromotive Division v. IEPA (February
19,
1987),
PCB
86-195,
76 PCB 59.)
Moreover,
in each of these exceptional
circumstances the Board has required assurance,
commonly through
conditions attached to the grant of variance, that negative
environmental impact during the term of the variance be minimal
and temporary.
Lone Star proposes implementing a leachate management
program for the existing landfill to reduce and eventually
eliminate migration of leachate beyond the landfill boundaries,
utilizing
a combination of improved cover,
runoff diversion, and
pumping of leachate for process use.
(Am. Pet.
at
26..)
Lone Star
seeks additional time to present and test alternative plans for
compliance.
Lone Star also notes that if these alternatives are
found to be unacceptable it will be able to obtain compliance but
at an additional cost.
Environmental Impact
Lone Star does not anticipate that the proposed variance
will have a negative environmental impact.
(Am.
Pet.
at 31.)
The
extension of certain deadlines is being requested to assess the
effectiveness of Lone Star’s proposed methods of compliance.
Lone Star contends that additional time is needed to evaluate the
proposed leachate treatment system.
Consistency with Federal Law
Cement kiln dust is not regulated by United States
Environmental Protection Agency regulations.
(Am. Pet.
at 39.)
Lone Star further states that there are no federal concerns.
(Am.
Pet.
at 39.)
CONCLUSION
Based on the record before it, the Board finds that Lone
Star has presented adequate proof, that immediate compliance with
the regulations at issue would impose an arbitrary or
unreasonable hardship on Lone Star.
The requested variance is
granted subject to the conditions consistent with this opinion.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
0!
L~2-0556
13
ORDER
Lone Star Industries
(Lone Star)
is hereby granted a
variance for its cement manufacturing facility located in
Oglesby, Illinois from the following provisions for the following
periods:
1.
Sections 814.302(a) and 811.313
—
Minimum of one foot
cover within
60 days of waste placement extended to
December 31,
1992.
2.
Section 814.302(b) (1)
-
Installation of
a leachate
management system extended to December
31,
1994.
3.
Section 811.301(b)
—
Diversion of runoff from
undisturbed areas extended to December 31,
1992.
4.
Section 811.314
-
Installation of a final cover system
that meets all stated design standards extended to May
20, 1995 or one year after final Board action on an
adjusted standard petition or rule change,
or
determination by the Board that the proposed final
cover system meets the requirements of the existing
rule, whichever is earlier.
5.
Section 811.320(d)
—
Requirement for setting background
concentrations for groundwater extended to May 20,
1995
or 120 days after final Board action on an adjusted
standard petition or rule change,
or determination by
the Board that the requirement is non-applicable,
whichever is earlier.
6.
Sections 811.317,
815.202(a),
815.203(b)
and 812.316
—
Completion of groundwater impact assessment and
submittal as part of Initial Facility Report extended
to December 31,
1994.
7.
Sections 815.202(a),
815.203(b)
and 811.110(d)
—
Completion and submittal of a written Closure Plan as
part of an Initial Facility Report extended to May 20,
1995 or 120 days after final Board action on an
adjusted standard petition or rule change modifying the
applicable requirements for the final cover system,
whichever is earlier.
8.
Section 811.309(c) (4)
-
Basins will be constructed with
liners to control seepage to groundwater extended to
May 20,
1995 or 180 days after Board action on an
adjusted standard petition or rule change, or
determination by the Board that the requirement is non—
applicable, whichever is earlier.
(11 ~2-U557
14
The variance is granted subject to the following conditions:
A.
The minimum one foot of cover shall conform to the
requirement specified in 35 Ill. Adm. Code 807.305(b).
B.
The pit shall be completely de-watered by March
31,
1994 and shall be so maintained throughout the term of
this variance.
Lone Star shall apply for and receive a
permit by December 31,
1993,
from the Agency’s Bureau
of Water, Permit Section, to discharge waste waters
collected from the western pit to a treatment facility,
if needed to completely de-water the pit by March 31,
1994.
Additionally,
the treatment facility shall apply
for and receive
a supplemental permit from the Agency’s
Bureau of Land, Permit Section.
C.
Sodium and the Field Parameters listed below shall be
added to the quarterly groundwater sampling list.
—
Bottom of well elevation (feet reference mean sea
level) to be reported annually.
-
Depth to water
(feet below surface).
-
Depth to water
(feet from measuring point).
—
Elevation of groundwater surface
(feet reference
mean sea level)
D.
For the first quarter of sampling only.
Lone Star
shall conduct a broad volatile organic scan on samples
of leachate removed from leachate wells NW-i, NW—2 and
NW-3.
Any parameter detected in this scan shall be
added to the routine quarterly groundwater sampling
list as well as any transformation or degradation
products that could be derived from these constituents.
E.
Within forty—five
(45) days of the date of the Board’s
order, Lone Star shall submit the following
Certification of Acceptance to:
Illinois Environmental Protection Agency
James G. Richardson
Division of Legal Council
2200 Churchill Road
P.O. Box 19276
Springfield, IL
62794—9276
The 45-day period will be held
in abeyance during any period
that this matter is being appealed.
Failure to execute and
forward this certificate within 45 days shall render the variance
null and void.
The form of the Certificate shall
be as follows:
0
L:~2-Q558
15
CERTIFICATION
I,
(We),
,
having
read and fully understanding the order
in PCB 92-134 dated May
20,
1993,
hereby accept that order and agree to be bound by all
of its terms and conditions.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41 (1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules of the 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 above opinion and order was
adopted on the
~“-‘~
day of _________________________
1993, by
a vote of
/
/
~e
Dorothy
M.
G,ii~n, Clerk
Illinois PolXution Control Board
0
L~.2-O559
