ILLINOIS POLLUTION CONTROL BOARD
November
2,
1989
TESTOR CORPORATION,
Petitioner,
V.
)
PCB 88—191
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Responc~ent.
JEFFREY
C.
FORT
AND
LEE
P.
CUNNINGHAM,
GARDNER,
CARTON,
AND
DOUGLAS, APPEARED
ON
BEHALF OF PETITIONER;
AND
PAUL P. JAGIELLO APPEARED
ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This
matter
is
before
the
Board
on
petitioner
Testor
Corporation’s
(Testor)
November
23,
1988
petition
for
hearing.
Testor’s
petition
seeks
review
of
its
closure
plan,
which
was
approved subject to conditions by respondent Illinois Environmental
Protection Agency
(Agency).
Testor specifically requests review
of conditions
1,
3,
4,
and
8 as they relate to the deadline for
closure,
the
necessity
of
groundwater
monitoring,
and
permit
requirements.
A public hearing was held
in Rockford, Illinois on
Nay 9,
1989.
Both parties have submitted briefs.
Background
Testor
owns
and
operates
a
plant
in
Rockford,
Illinois.
Operations
at
the
plant
include
the
formulation
and
mixing
of
paints and
adhesives
used
for
hobby
models,
arts,
and
crafts.
Specific solvent blends for each type of paint are formulated
in
the pump room,
which was equipped with
a 1-1/2” overflow pipe to
drain any spills of flammable liquid and prevent the accumulation
of explosive vapors
in the pump room.1
The pipe ran
to
a
small
depression outside of the plant.
On June 25,
1985,
approximately
50
gallons of toluene spilled
in the pump room when an
employee
propped open a deadman safety switch.
The toluene ran through the
floor drain and pipe to the small depression outside the building.
1The pipe,
which was installed in 1952, was grouted closed in
1987.
1fl~-17
2
On October
5,
1987,
Agency personnel collected
soil samples
from the
discharge
area.
These
samples
showed
that
the
soil
beneath the discharge area was contaminated with several volatile
organic compounds
(VOC), including toluene.
The Agency informed
Testor of these results by letter dated November
6,
1987.
Testor
responded that it did not believe that a closure pursuant to the
Resource Conservation and Recovery Act
(RCRA)
was necessary,
but
that
it wanted
to
work with
the Agency
to
reach
agreement
on
cleaning up the discharge area.
(Ex.
32A.)
Eventually,
however,
Testor did submit a RCRA closure plan in April 1988.
(Ex.
3.)
The
Agency disapproved that plan on July
19,
1988.
(Ex.
11.)
After
meeting with the Agency,
Testor submitted
a revised closure plan
on August
26,
1988.
(Ex.
22.)
The Agency approved this revised
plan on October
26,
1988,
after adding
several conditions.
(Ex.
26.)
Conditions
1,
3,
4,
and 8 of that approval are the subject
of this appeal.
Notion To Exclude Evidence
On July 24, 1989, the Agency filed a motion to exclude certain
evidence and testimony which was admitted by the hearing officer
at the May
9 hearing
in this matter.
Testor filed
a response to
this motion on August 2,
1989.
The Agency’s arguments in support
of
its
motion
were
reiterated
in
its
brief,
and Testor
again
addressed the issue in its reply brief.
The
Agency
moves
to
exclude
Exhibits
323,
33,
and
Group
Exhibit
34,
and all testimony based upon those
exhibits,
on the
grounds
that
those exhibits
and testimony deal with
events
and
information
gathered
after
the
Agency
issued
the
permit
with
conditions on October 26, 1988.
Exhibit 32B is an estimate of the
cost of the groundwater monitoring required by conditions
3 and
4
of the permit.
This estimate was developed by Gregory Verret,
an
engineer employed by Testor to develop its closure plan.
Exhibit
33
is
a flow chart
showing
the estimated
schedule
for Testor’s
three treatment or disposal options,
also created by Mr. Verret.
Group Exhibit 34 contains three figures:
Figure 2
is a drawing of
the soil sampling locations2
Figure
3
is an east—west geological
cross—section of the discharge area; and Figure 4 is a north—south
geological cross—section of the discharge area.
In support of its
contention that these exhibits and testimony based upon them should
be
excluded,
the Agency points to
35
Ill.
Adm.
Code 705.101(c),
which
states
that
“Board
review
of
RCRA
permit
issuance
or
denial..
.
is restricted to the record which was before the Agency
when the permit was issued.”
This regulation also cites to Section
40(b)
of the Environmental Protection Act (Act), which states that
hearings on RCRA permits ar~to be based tiexciusively on the record
before
the
Agency.”
Ill.
Rev.
Stat.
1987,
ch.
111-1/2,
par.
1040(b).
The Agency contends that all of the disputed exhibits
2 There is no Figure
1
in Exhibit 34.
1fl5
13
3
were developed after the Agency’s October 1988 permitting decision,
and thus that none of the exhibits belong in “the record before the
Agency.”
In response,
Testor
first argues that the Agency has waived
its
objections
to
Mr.
Verret’s
testimony
which
was
based
upon
Exhibits
32B
and
33
by
failing
to
object
to
that testimony
at
hearing.
As for Exhibit 32B itself, Testor maintains that although
the document itself was prepared after the October 1988 decision,
it is not new material, but simply represents an expert opinion of
the cost of the groundwater monitoring
conditions
imposed by the
Agency.
Testor contends that Exhibit 32B is reflective of what the
Agency,
in its expertise, knew or should have known when it imposed
the condition.
Testor argues that Exhibit 33
is similar,
in that
it
reflects matters
within the Agency’s
expertise.
Testor
also
admits
that
Exhibit
33
did not
exist
on
October
26,
1988,
but
maintains that
it
could not have been prepared before
that date
because Testor did not know what conditions would be imposed by the
Agency.
Additionally, Testor contends that the three
figures
in
Exhibit
34
are
admissible.
Testor maintains
that
Figure
2
is
simply
a
graphic
representation
of
the
discharge
area
and
the
boring locations, based upon information in Testor’s closure plan.
(Ex.
3 at pp.6—10.)
Testor admits that Figures 3 and
4 of Exhibit
34 do
include information which was not before the Agency,
since
those figures are based upon actual testing of soil samples taken
after
October
26,
1988.
However,
Testor
asserts that
they
are
illustrative of the sampling process set forth in the closure plan,
and that much of the testimony regards that
process,
not actual
data.
The Board will grant the Agency’s motion to exclude evidence
and testimony
for all exhibits and testimony except Figure
2
of
Exhibit 34.
Initially, the Board must point out that the Agency’s
references
to Section 705.101(c)
is not directly
on point.
That
section
refers
to
RCRA
permit
reviews,
while
the
instant
case
involves an appeal of conditions attached to a closure plan.
These
are not the same thing.
However,
in a procedural
sense the Board
does
treat
closure
plan
reviews
in
the
same
manner
as
permit
appeals,
and
the
Board
believes
that
Section
705.101(c)
is
persuasive
authority in
a
closure plan
review.
That
section
is
quite clear that Board review of a RCRA permit issuance or denial
is restricted to the record which was before the Agency when the
permit was issued. It is well-settled that when reviewing an Agency
permit decision, the Board must determine whether the application,
as
submitted
to
the
Agency,
demonstrates
that
issuance
of
the
permit without the contested conditions would not violate the Act
or
Board
regulations.
(See
City
of
East
Moline
v.
Illinois
Pollution Control Board.
No. 3-88-0788,
slip op.
at 11
(Ill. App.
Ct.
3d Dist., August 31,
1989); Joliet Sand and Gravel v. Illinois
Pollution Control Board,
163 I1l.App.3d
830,
516 N.E.2d
955,
958
(3d Dist.
1987);
Ill. Rev.
Stat.
1987,
ch. 111—1/2, par.
1039(a).)
The Board
finds that
in reviewing a closure plan approval,
that
105 19
4
review is limited to the record which was before the Agency when
it made the contested decision.
Only Figure 2 of Exhibit 34, which
is based
upon information contained
in
Testor’s application,
is
admissible.
The Board will not consider Exhibits
32B,
33,
or
Figures
3 and 4 of Exhibit
34, nor any testimony based upon tho9
exhibits,
in reaching its decision on the merits of this appeal.
The
Board
also
notes
that
Exhibit
32B,
which
is
Mr.
Verret’s
estimate
of
the
cost
of
the
groundwater
monitoring,
contains
information
which
is
not relevant
to the
issue
of
whether
the
application as submitted
demonstrates that the plan without
the
contested
conditions
would
not
violate
the
Act
or
Board
regulations.
Cost
is simply not
a factor
in that determination.
(See East Moline,
slip.
op. at 11—13.)
Applicability of Part 725 Rules
This
permit
appeal
presents
a
number
of
issues
for
Board
decision.
The first
is whether the discharge area is properly a
“surface impoundment” as defined
at
35
Ill.
Adm.
Code 720.110 so
that the RCRA closure rules, found at 35 Ill. Adm.
Code 725, apply
to this clean—up.
Testor contends that the discharge area was not
“designed
to
hold
an
accumulation
of
liquid
wastes
or
wastes
containing
free
liquids”,
as
stated
in the definition,
but was
designed to receive spills of raw materials to avoid the potential
for an explosion in the pump room.
The Agency points out, however,
that Testor has itself stated that the discharge area was designed
to
receive
spills
of raw materials,
and thus contends that
the
discharge area was “designed” to hold liquid which would flow down
the drain.
The Agency
also maintains that the liquid which was
intended
to
flow down
the pipe
and into the discharge area was
indeed
a
“liquid waste”.
The Board must agree with the Agency’s
assessment that the discharge area is a surface impoundment.
Second, Testor argues that the Part 725
PCRA
closure rules do
not
apply
to
the
remediation
of
the
contamination
beneath
the
discharge
area
because
it
has
never
obtained
interim
status.
Testor points to the Board’s decision in Marley—Ingrid v. Illinois
Environmental Protection Agency, PCB 88-17
(March 23, 1989), where
this Board held that “the closure and post—closure requirements of
35
Ill.
Adm.
Code
725.328
can only operate
within
a regulatory
scheme
which
governs
those
facilities
that
are
generally
in
compliance with the interim status regulations.”
(Marley-Ingrid,
March 23,
1989,
slip op.
at
p.
8;
emphasis in original.)
Testor
states that
it is clear that Testor never submitted a Part A or
The Board notes that in the recent decision in East Moline,
the appellate court affirmed the Board’s exclusion of evidence not
submitted to the Agency.
Although East Moline involved a different
Board
rule
governing
NPDES
permit
appeals
(35
Ill.
Adm.
Code
105.102(6) (8)),
the Board believes that East Moline supports
its
decision in the instant case.
ifl5~20
5
Part B
RCRA
permit application and never certified compliance with
the
interim
status
requirements
for
groundwater
monitoring
or
financial assurance.
(Tr.
45 and 48—49.)
Thus,
because it never
obtained interim status, Testor maintains that the Part 725 closure
rules are not applicable to this clean—up.
In response, the Agency first contends that Board regulations
show that a facility which did not obtain interim status
is still
subject to the interim status regulations of Part
725,
including
the regulations on closure of hazardous waste units.
The Agency
points to 35
Ill. Adm.
Code 700.104(b),
which states:
b)
The Board intends:
1)
That, prior to RCRA permit issuance, all facilities
otherwise subject to Part 725 comply with its
requirements whether or not they have interim status
under 40 CFR Section 122.23.
now
40 CFR 270.70
The Agency maintains that this section means that all facilities
are
subject
to
the
interim
status
regulations
until
they
have
received
a
permit
which
has
been
the
subject
of
final
Agency
action.
The Agency states that such a permit would
be
a Part B
permit,
and notes that Testor has never applied for or received
a
Part
B
permit.
The Agency
also
points
to
35
Ill.
Adm.
Code
725.101(b):
b)
The standards in this Part apply to
.
.
.
those owners
and operators in existence on November
19,
1980,
who
have failed to provide timely notification as required
by Section
3010(a)
of
RCRA,
or failed to file Part A of
Permit Application as required by 40 CFR 270.10(e)
and
(g)
or 35
Ill. Adm. Code 703.150 and 703.152.
These
standards apply to all treatment,
storage,
or disposal
of hazardous waste at these facilities after November 19,
1980,
except as specifically provided otherwise in this
Part or
35 Ill. Adm.
Code 721.
The
Agency
argues
that
this
language
unambiguously
makes
the
interim status regulations
of
Part
725 applicable to
facilities
that failed to provide timely notification or failed to file a Part
A application, and points out that Testor did neither.
Thus,
the
Agency argues that Testor
is indeed subject to the Part 725 rules
even though it never received interim status.
The Agency states
that
it would be absurd
if Testor could avoid responsibility for
compliance with basic hazardous waste requirements
by simply not
complying
with
those
requirements.
Finally,
the Agency
cites
United States v. Indiana Woodtreating Corp., 686 F. Supp. 218
(S.D.
Indiana,
1988),
where
a woodtreating
plant which
never
obtained
interim
status or a RCRA permit was required to comply with the
federal equivalent to Part 725
(
40 CFR Part 265).
105
21
6
After careful consideration of the parties’ arguments and the
applicable statutes and regulations, the Board finds that Testor
is subject to the Part 725 rules
even though
it never obtained
interim status or a RCRA permit.
A review of Sec~tion700.104(b),
which states that the Board intends the Part 725 rules to apply to
all facilities prior to RCRA permit issuance whether or not they
have
obtained
interim
status,
in
conjunction
with
Section
725.101(b)
convinces the Board that the plain language of these
rules
states
that Part 725
applies
to
owners
and operators of
facilities
in existence on November 19,
1980 who did not provide
timely notification or file a Part A permit application, and have
not received
a Part B RCRA permit.
It
is undisputed that Testor
did not provide notification pursuant to Section 3010(a)
of RCRA
and did not apply for either
a Part A or a Part B permit.
It
is
also undisputed
that Testor’s
facility was
in
existence before
November
19,
1980.
Therefore,
applying
Sections
700.104(b)
and
725.101(b)
to Testor’s circumstances,
it is obvious that Part 725
applies
to
Testor.
The
Board
recognizes
that
this
finding
contradicts the holding
in Marley-Ingrid,
but believes that this
result is mandated by the clear language of Sections 700.104(b) and
725.101(b).
The Board notes that
it did not have the benefit
of
argument on the reading of these two sections together when making
its decision in Marley-Ingrid,
since
neither party
in that case
ever brought
Section
700.104(b)
to the Board’s
attention.
The
Board’s
holding
in
Marley-Ingrid,
that
a
facility which
never
officially obtained interim status or substantially complied with
the interim status rules is not subject to Part 725, is overturned.
Condition
1
Testor has appealed four
of the conditions which the Agency
imposed
on
its approval
of
Testor’s closure
plan.
Condition
1
requires Testor to complete all of its closure activities by June
1,
1989,
and to provide the Agency with certification of closure
within
60 days
of closure.
This gives Testor approximately six
months to complete closure.
Testor admits that this requirement
is
based
upon
35
Ill.
Adrn.
Code
725.213(b),
which
requires
completion of closure activities within 180 days of approval of the
closure
plan.
Testor
points
out,
however,
that
Section
725.2l3(b)(l)(A)
allows the Agency to
extend that period if the
owner demonstrates that the closure activities will,
of necessity,
take longer than 180 days to complete.
The closure schedule
in
Testor’s application included 150 days to complete all activities
up to the treatment or disposal
of the contaminated
soils.
The
period of time needed for treatment or disposal of the soils was
indicated as “unknown”.
(Ex.
3 at pp. 23-4;
Ex.
22 at 24.)
Testor
states
that
it
could
not
reasonably
be
expected
to
choose
a
treatment or disposal option until the contaminant concentrations,
volume, and treatability of the soils were determined.
Therefore,
Testor’s application set forth four disposal or treatment options:
on—site treatment by mechanical aeration,
biological degradation,
105 22
7
or vapor
extraction,
and off-site disposal
at
a RCRA
landfill.~
(Ex.
3
at
p.
19;
Ex.
22
at
p.
20.)
Testor
argues that
it
is
impossible to complete any of these options within the time period
established
in Condition
1,
especially
if contested Condition
8
(which requires Testor to obtain a Part B RCRA permit to stockpile
excavated soils on-site prior to disposal)
is upheld by the Board.
In response,
the Agency points out that Testor’s application
does not give any indication whatsoever
as to how long treatment
or disposal of the soils may take.
Thus,
the Agency argues that
Testor did not make the required demonstration that more than 180
days
is
necessary
to
complete
closure.
Without
a request
for
extension and
a demonstration
of need,
the Agency contends that
Section
725.213(b)
requires
Testor
to
complete
its
closure
activities within 180 days.
The Agency maintains that Condition
1 is necessary to assure that the closure plan did not violate the
Act or Board regulations.
As noted
above, when reviewing an Agency permit decision,
the Board must determine whether the application,
as submitted to
the Agency, demonstrates that issuance
of the permit without the
contested
conditions
would
not
violate
the
Act
or
Board
regulations.
Section
725.213(b)
clearly
requires the owner
or
operator
to
complete
closure
activities
within
180
days
after
approval
of the closure
plan.
That
section
also
requires
the
Agency
to approve
an extension to that period
if
the
owner
or
operator demonstrates that closure activities will,
of necessity,
take longer than
180
days
to
complete.
The burden
is
clearly
placed
upon the
owner
or
operator
to request
an extension
and
demonstrate that an extension
is
necessary.
The only hint
in
Testor’s application which
could
be construed as
a
request
for
extension is a statement that “the
ultimate disposal or treatment
of contaminated soil removed during this phase may require a longer
time period,
depending
on the time requirements
for obtaining a
disposal permit or to complete on—site treatment
of contaminated
soil.”
(Ex.
22
at p.
24.)
The Board does not believe that this
statement was sufficient to be considered a request for extension
pursuant
to
Section 725.213(b).
The Board
is
unable
to
find
a
demonstration that closure would take more than 180 days anywhere
in
Testor’s
application,
and
thus
must
conclude
that
the
application did not demonstrate that Condition
1 was not necessary
to avoid a violation of the Act or regulations.
Additionally, the
only evidence in the record which supports Testor’s contention that
it is impossible to comply with the 180 day period is new evidence
and
testimony
by
Mr.
Verret,
which
the
Board
has
excluded
in
response
to
the
Agency’s
motion.
Even
if
Testor
had made
a
sufficient
request
for
an
extension
of
the
time
period,
its
The Board
notes that
although the biological
degradation
option
is
listed
in Testor’s
application,
that
option
was
not
mentioned by Testor at hearing or in post—hearing briefs.
inS 23
8
application failed
to demonstrate that closure activities would
take more than 180 days.
The Board must uphold the imposition of
Condition
1.
The Board
notes,
however,
that Testor
can still
request an extension of
the deadline pursuant to Section 725.213(b)
and
(c).
Conditions
3 and 4
Testor also challenges the imposition of Conditions
3 and 4.
Condition
3 requires Testor to provide the Agency with
a proposed
groundwater
monitoring
system
that would
demonstrate
that
the
groundwater quality
in the saturated zone has not been adversely
affected
by operation of the surface
impoundment.
Condition
4
requires Testor
to monitor
the groundwater
from
its monitoring
wells
in
accordance
with
Subpart
F
of
Part
725
until
Testor
demonstrates
that
no
release
had
occurred
from
the
surface
impoundment.
In its application,
Testor had proposed collecting
soil
samples
at
increasing
depths
to
determine
whether
contamination extended to the saturated zone.
If so, Testor would
monitor the groundwater.
If not, groundwater monitoring would not
be performed.
(Ex.
22 at p.
15; Tr.
pp. 79—89.)
Testor contends that the Board’s March
23,
1989 opinion
in
Marley—Ingrid holds that groundwater monitoring is not necessarily
required for clean closure of a RCPA surface impoundment, although
equivalency
will
have
to
be demonstrated.
Testor
attacks
the
testimony
of
Robert
Carson
of the Agency’s permit
section,
who
testified that there
is no demonstration that an applicant could
make to avoid doing groundwater monitoring for
a clean
closure.
(Tr.
at 192-193.)
Testor maintains that Marley-Ingrid allows an
applicant to demonstrate equivalency, and argues that the sampling
program
in
its
application
is
sufficient
to
do
so
if
the
contamination has not reached the saturated
zone.
The
Agency
responds
by
stating
its
belief
that
Testor’s
proposal for addressing groundwater contamination is inadequate to
demonstrate that the surface impoundment has not had an impact on
groundwater.
The Agency contends that a clean closure under Part
725
must consider groundwater,
that
it
was
not
satisfied
that
Testor’s
proposal
was
adequate
to
show
that
groundwater
was
unaffected by the surface impoundment,
and that Conditions
3
and
4 were
included
in the closure
plan
approval
to
correct
those
inadequacies.
The Board agrees with Testor that,
pursuant to our March 23,
1989 opinion in Marley-Ingrid, a facility which is subject to Part
725 and seeks to close by removal
is not required as
a matter of
law to comply with the Part 724 groundwater monitoring standards,
although such facilities must at some time demonstrate that they
have met the closure by removal
standards of Part
724 when that
facility seeks a determination of equivalency.
As discussed above,
the surface impoundment at Testor’s facility
is subject
to Part
105•-2.4
9
725, and Testor proposes closure by removal.
Thus,
Testor is not
required as
a matter of law to monitor the groundwater.
After
a
review
of
Testor’s
application
and
the
parties’
arguments,
the Board finds that Testor’s application demonstrates
that neither the Act nor the regulations would be violated if the
permit was issued without Conditions
3 and 4.
In other words, the
Board believes that Testor’s proposed method
of
soil sampling to
determine
whether contamination has reached
the saturated
zone,
coupled with Testor’s commitment to perform groundwater monitoring
if contamination has reached the saturated
zone,
is sufficient to
prevent
a
violation
of
the
Act
or
regulations.
The
Board
emphasizes, however, that this finding is based in large degree on
the
fact
that
Testor’s
soil
sampling
program
includes
all
constituents identified by the Agency’s sampling in the area,
all
materials used at Testor’s plant,
and a range of other chemicals,
and
is not limited to the identified toluene release.
The Board
also notes that after Testor completes this closure,
it must either
obtain a post—closure care permit or demonstrate equivalency.
In
other words,
this
is not the
last time that the area groundwater
will
be
considered.
The Agency
is
directed to
issue
the
plan
approval without Conditions
3
and
4,
and to substitute
Testor’s
proposed soil sampling and subsequent monitoring program.
Condition
8
Condition
8 requires Testor to obtain
a
RCRA
Part B
permit if
it
stockpiles
excavated
soils
on the ground
prior
to
disposal.
Storage of hazardous waste in containers or tanks would be allowed
for
90
days
without
a
permit
if
Testor
complies
with
the
requirements of
35 Ill.
AdTn. Code 722.134.
Testor challenges the
imposition of this condition, stating that it does not believe that
RCRA
storage or treatment permits are
required
in this situation,
which
Testor
analogizes
to
clean—up pursuant
to
Section
121
of
CERCLA.
Testor maintains
that the Agency
has not historically
required such permits for the clean—up of spills, and contends that
the imposition of the permit requirement does not serve any of the
purposes
of the permit
system.
Testor
argues
that
the
permit
requirement actually undermines the goal of prompt remediation of
potential environmental threats, and maintains that CERCLA’s permit
exemption should apply here.
The Agency,
in response, points out that Testor’s application
contains
a plan to stockpile contaminated soils after excavation
from the surface
impoundment.
(Ex.
22 at pp
19-20.)
The Agency
states
that
Condition
8
was
included
in
the
plan
approval
to
address violations of Board regulations which will occur
if Testor
does indeed stockpile the
soils.
The Agency maintains that the
excavated soil
is a hazardous waste when discarded
(35
Ill. Adm.
Code 721.133(d)), and that the act of stockpiling a hazardous waste
into piles
is the creation of
a waste pile which is
a hazardous
waste
management unit
(35
Ill.
Adm.
Code 721.110).
The Agency
105 -25
10
contends that a
RCRA
permit is needed for any new hazardous waste
management
unit,
and
that
even
a
hazardous
waste
unit
built
specifically as part of a closure process must be covered by a RCRA
permit.
The Agency states that its position is not that Testor
must submit a Part B permit application as an absolute condition
to closure, but that Testor must obtain such a permit if it chooses
to stockpile the excavated soils.
In sum, the Agency argues that
Condition 8
is a necessary condition to the approved closure plan,
but that Condition
8 does
not require Testor to submit a Part B
application
if
they
follow
other
storage
options
which
do
not
require a Part B permit.
The Board does not agree with the Agency that Condition 8
is
necessary to assure
that Testor’s closure
of
the area does not
violate the Act or Board regulations.
The Board finds that the
condition is based upon an incorrect analysis of the situation. The
excavated soil does not become
a hazardous waste when discarded,
as the Agency maintains;
rather, the contaminated soil already is
a waste. The Board has held that the area in question is a surface
impoundment;
therefore, the facility is a treatment, storage, and
disposal
(TSD)
facility.
Section 722.134, which contains the 90—
day permit exemption, applies only to generators, not to owners and
operators of TSD facilities.
The Board realizes that this facility
became a TSD facility “accidentally”,
but this does not change the
fact that it
is a TSD facility under the regulations.
Condition
8
is struck.
However, striking the condition does not necessarily
force Testor
to obtain
a
RCRA
storage permit.
Testor would
be
well—advised to be prepared to provide for prompt removal of the
waste as
it
is excavated.
Conclusion
In sum,
the Board finds that the discharge area at Testor’s
facility
is
a surface impoundment,
and that Testor’s facility
is
subject to Part 725.
Conditions
1 is upheld, and Conditions
3,
4,
and 8 are reversed.
This
Opinion constitutes the Board’s
findings
of
fact and
conclusions of law in this matter.
ORDER
The closure plan approved by the Agency on October 26,
1988
is affirmed in part and reversed in part.
The Agency is directed
to issue the plan approval without Conditions
3,
4, and 8, and to
add Testor’s proposed soil
sampling
and
subsequent groundwater
monitoring program as conditions to approval.
IT IS SO
ORDERED.
Section
41
of the Environmental Protection Act,
Ill.
Rev.
Stat.
1987,
ch.
111—1/2,
par.
1041,
provides for appeal of final
105-
26
11
orders of the Board within 35 days.
The Rules of the Supreme Court
of Illinois establish filing requirements.
B. Forcade dissented and R. Flemal was not present.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that
t~eabove Opinion and Order was adopted
on the
~o~”
day
of
~
,
1989,
by
a
vote
of
Dorothy M. ~nn,
Clerk
Illinois Pollution Control Board
105--27
