1. BACKGROUND
ILLINOIS POLLUTION CONTROL BOARD
December 20,
1990
THE CECO CORPORATION,
Petitioner,
v.
)
PCB 86—180
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
CLIFTON LAKE AND NANETTE EVERSON APPEARED ON
BEHALF
OF THE
PETITIONER.
PAUL JAGIELLO APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(J. Theodore Meyer):
This matter
is before the Board on a petition filed October
15,
1986,
by Ceco Corporation
(Ceco)
for review of
a Modified
Closure Plan promulgated by the Illinois Environmental Protection
Agency (Agency) on September 11,
1986.
Ceco specifically
requests review of conditions
1,
2
(d—e),
3,
11,
13,
15,
16,
18,
and
20, which were set forth
in the modified closure plan.
These
conditions require Ceco
to close
the entire
25 acre site pursuant
to 35
Ill.
Adm. Code 725.358
(b)
or
to demonstrate to the Agency
that all electric arc furnace dust
(KO61)
has been removed from
the portions of the site which are not closed.
Specifically,
the
conditions require additional testing and additional sampling of
the site to locate electric arc furnace dust and for groundwater
monitoring.
A public hearing was held on
May
25,
1989,
in
Bolingbrook, Illinois.
Both parties have submitted briefs.
BACKGROUND
Ceco owned and operated
a steel production facility
in
Lemont,
Illinois, prior
to February
3,
1983.
On that date,
Ceco
sold the steel mill facility
to Thomas Steel Company;
however,
the sales agreement provided that Ceco would retain title to the
parcel of real estatç on which electric arc furnace dust was
stored.
(Stip.
p.
2)i•
Production operations at the facility
involved the melting of scrap steel
in electric arc furnaces and
The Stipulation of Facts
is cited as
(Stip.
p.
_____);
the
transcript is cited as
(Tr. p.
_____).
Ceco’s brief is cited as
(Pet.
Br.
p.
_____
)
and the Agency’s brief
is cited as
(Ag.
Br.
p.
____
).
The Petition is cited as
(Pet.
p.
_____
).
117—25
—2—
the fabrication of billet and other steel forms and shapes
including concrete reinforcing bar.
(Stip.
p.
1).
As
a
consequence of its operation of electric arc furnaces, Ceco was
required
to install and operate air pollution control
equipment.
The air pollution control equipment consisted of
a
baghouse collector system which removed entrained dust from the
furnace exhaust.
The collected dust was wetted to facilitate
handling and deposited in waste piles on a 25 acre parcel of real
estate owned by Ceco adjacent
to the steel mill.
(Stip.
p.
2).
The greatest portion of the wetted dust was deposited for storage
in a single bermed pit;
however, some was deposited on other
areas of the site and was subsequently covered by other
materials,
principally slag.
(Pet.
Br.
p.
3).
Electric arc furnace dust
is a listed hazardous waste
pursuant to 40 CFR 261.32.
In 1980, Ceco applied for and
received interim status for
a hazardous waste storage site under
the Resource Conservation and Recovery Act (RCRA)
(40 U.S.C.
3001
et seq.) and the rules implementing
RCRA.
Ceco did not dispose
of K061 at the site after November 19,
1980.
(Stip.
p.
2).
Because Ceco did not wish to maintain a RCRA regulated
hazardous waste storage
facility
it began removing K06l from the
site for disposal at a licensed hazardous waste disposal site.
During 1981 and 1982, Ceco removed 10,000 cubic yards
of electric
arc furnace dust.
(Stip.
p.
3).
Cedo also retained NUS
Corporation
(NUS) as an environmental consultant to develop
a
closure plan for the site.
Based on records and information
available, NUS estimated that fifteen percent
of the dust stored
at the site remained in 1983.
(Pet.
Br.
p.
4)
On January 31, 1985,
Ceco submitted
to the Agency its
closure plan for the site.
The closure plan described the
methodology by which the remaining deposits of electric arc
furnace dust would be identified,
excavated and disposed of at a
licensed hazardous waste facility.
(Stip.
p.
3).
The plan
included sub—surface investigation to determine location or
existence of dust as well as a plan for removal.
Because of the
manner
in which
the dust was deposited,
excavation with earth
moving machinery caused
a significant volume of non—hazardous
waste to be admixed with the dust.
(Pet.
p.
3).
Ceco set forth
in its plan a system to separate non—hazardous waste from the
hazardous waste.
On March
29,
1985,
the Agency sent a letter to
Ceco disapproving the closure plan for certain deficiencies and
listing several questions concerning those deficiencies.
Ceco
responded to those comments on April 30,
1985.
On June 13,
1985,
the Agency approved the closure plan
submitted by Ceco on January 31,
1985, as clarified by the
responses to the March 29,
1985, Agency letter.
On September 18,
1985, Agency representatives visited the site and observed the
excavation and separation processes being carried out.
Following
the visit on September 27, 1985,
the Agency sent Ceco a
Compliance Inquiry Letter.
(Pet.
p.
4).
The Compliance Inquiry
117—26
—3—
Letter
expressed concerns over the color of the electric arc
furnace dust at the site,
the actual excavation procedures and
the separation process.
(Pet. Ex. 5)2~ A meeting between Ceco
and the Agency followed
in November; the principal subject
discussed was the application of the hazardous waste mixture rule
~(35Ill. Adm. Code 721.103) to the material excavated.
The
Agency stated that its interpretation of the hazardous waste
mixture rule requires the inclusion of all material from the
separation process unless Ceco could demonstrate
that “absolutely
no trace” of dust would be contained in admixed material.
(Pet.
p.
4).
Due
to the increased cost of disposal
of all the 32,000
cubic yards of admixed material and the physical impossibility of
obtaining the degree of separation which
the Agency
required,
Ceco notified the Agency that it would amend its closure plan.
On March 19,
1986, Ceco submitted an amendment to its closure
plan to provide for site disposal of the admixed material.
The March 19,
1986, amendment to the closure plan provided
for
a consolidation of the then excavated admixed waste within
a
two
acre portion of the former regulated unit which would then be
closed pursuant to
35
tll. Adm.
Code 725.358(b).
On June 12,
1986,
the Agency disapproved
the amended closure plan of March
19, 1986.
The Agencys disapproval
stated that the amended
closure plan contained over 18 deficiencies including:
1)
“it
has not yet been demonstrated to this Agency that all of
the
waste
residues
and
contaminated
soils
have
been
removed”;
2)
drawings fail to indicate the outline of
the quarry;
3)
a
description of how the stockpile areas will be cleaned up must be
included
and
4)
a
method
to
identify
areas
contaminated
by
wind
blown and drifting dust must be included.
(Pet. Ex
8)
On July 15, 1986,
Ceco submitted a modified closure plan.
On September 11,
1986,
the Agency notified Ceco that the modified
closure plan would not be approved without conditions imposed by
the Agency.
The letter set forth conditions numbered
1
—
20.
It
is from the September
11,
1986, modified closure plan
that Ceco appeals.
Ceco specifically accepted the conditions
in
the September 11,
1986,
letter which are numbered
2
(a)-(c),
2
(f)—(j),
4,
5,
6,
7,
8,
9,
10,
12,
14,
17, and
19.
Ceco also
accepted condition number 11 as
it relates
to the requirement of
a final cover
of four feet over the closed regulated unit.
The
specific conditions in the September 11,
1986, closure plan which
Ceco objects
to are:
1,
2
(d—e),
3,
11,
13,
15
(i—ill),
16,
18,
and 20.
Ceco did not specifically argue in its briefs the
reasons for not accepting conditions 13,
18 and 20,
or the
2.
Ceco’s Exhibits are cited as
(Pet.
Ex.
____
p.
_____).
Agency
Exhibits are cited as
(Ag. Ex.
______
p.
).
117—27
—4—
remaining conditions
in 11
in its briefs or its testimony.
In
fact,
Ceco’s post—hearing brief states that “Ceco contests only
six of the twenty-two conditions imposed by the Agency:
conditions
1,
2
(d—e),
3,
13,
15
(i—ui)
and 16.”
(Pet.
Br.
p.
1).
Certain of these conditions are, however, intertwined with
other disputed conditions and will be more fully discussed as
they relate to those conditions.
ISSUES
Ceco and the Agency in their briefs
set forth six issues for
the Board to decide.
These issues will be discussed fully below
along with the corresponding conditions from the September
11,
1986, closure plan which relate to those issues.
As a preliminary matter,
it should be noted that the Board
has long held that,
in permit appeals the burden of proof rests
with the petitioner.
The petitioner bears the burden of proving
that the closure plan, absent the contested conditions imposed by
the Agency, would
not violate the Environmental Protection Act
(Act)
(Ill.
Rev.
Stat.
1989,
Ch.
1114,
par.
1001 et.seq.)
or the
Board’s regulations.
This standard of review was enunciated in Browning—Ferris
Industries of Illinois,
Inc. v.
Pollution Control Board,
179 Ill.
App.
3d
598,
534 N.E.2d 616,
(Second District 1989)
and
reiterated
in John Sexton Contractors Company
v.
Illinois
Environmental Protection Agency, PCB 88—139, February
23,
1989
(Sexton).
(Ag. Br.
p.
5).
In Sexton the Board held:
that the sole question before the Board is
whether the applicant proves that the
application, as submitted to the Agency,
demonstrated that no violations of the
Environmental Protection Act would have
occurred
if the requested permit had been
issued.
(Ag.
Br.
p.
5).
Therefore, Ceco must establish to the Board that the closure plan
Ceco submitted to the Agency would not violate the Act or the
Board’s rules if issued without the contested conditions.
ISSUE
1
The first issue
to be decided is
a procedural objection by
the Agency.
The Agency claims that the hearing officer
erroneously allowed testimony and admitted evidence that was
developed subsequent
to the date of the closure permit which was
appealed by Ceco.
The Agency requests that the testimony and/or
evidence be stricken.
This testimony appears on pages 170—173 of
the hearing transcript.
The testimony began with a question by
117—28
—5—
Ceco’s counsel regarding
a pre—enforcement conference
in
which
condition 15 was discussed.
Specifically, Ceco asked
if the
Agency’s witness, Mr. Charles
Zeal,
recalled
if Ceco was present
at the meeting which dealt with the disposition of non—hazardous
waste at the site.
Mr.
Zeal testified that he remembered
the
conference and that Ceco was present.
The Agency objected to
this testimony as being beyond the scope of the hearing.
The
hearing officer allowed the question to be answered after Ceco’s
counsel indicated that he would tie the question
in.
Ceco did
not however further tie
in the information.
The Agency then
stated for the record a standing objection
to questions
concerning anything that happened subsequent to the Agency’s
issuing the permit.
In its brief the Agency asks the Board to strike the
testimony on pages 170—173 of the transcript.
The Agency points
to prior Board decisions such as Sexton Filling and Grading v.
Illinois Environmental Protection Agency,
(PCB 88—116, June 22,
1989)
(Sexton)
in which the Board held that it
“must restrict
its
review to information in the Agency’s possession on that the
date of the Agency’s permit decision
date”
(Ag.
Br.
p.
4).
In
addition the Agency cites case
law
in which the court has held
that “the decision of the Board shall be based exclusively on the
record before the Agency including the record of the hearing,
if
any...”.
Illinois Environmental Protection Agency
v. Pollution
Control Board,
118 Ill. App. 3d
772,
455 N.E.2d 188
(1st Dist.
1983).
Ceco does not address this issue either at hearing or
in
its briefs.
The Board finds that the Agency
is correct
in
its
interpretation of the existing case law and the testimony and
evidence
is
stricken.
ISSUE
2
The first substantive
issue to
be considered
is whether or
not Ceco’s closure and post—closure subrnittals demonstrated that
Ceco’s proposed methodology for locating and excavating dust was
sufficient to remove all dust and therefore demonstrates that
Ceco need not close the entire 25 acre site.
The specific
conditions from the September 11, 1986 closure plan that this
issue relates to are 1,
15,
11 and 16.
Condition
1 of the September 11,
1986 letter states that:
It has still not yet been demonstrated to this
Agency that all of the waste residues and
contaminated subsoils have been removed from
the portion of the hazardous waste management
unit which Ceco Corporation wishes to include
in the area that will receive RCRA closure and
post-closure care.
This being the case, RCRA
closure and post—closure care
in accordance
with 35 Ill.
Adm. Code 725.358(b) must
be
117—29
—6—
provided for the entire twenty—five
(25) acre
waste pile
(S03)
unit.
(Pet.
Ex.
p.
1.)
Condition 11 requires that Ceco submit revised drawings depicting
the closure of the entire 25 acre site and Condition
15 states
the “the closure plan as described and modified above shall apply
for the subject waste pile
(S03)
unit unless Ceco Corporation can
demonstrate and document
to this Agency’s satisfaction within 90
days from the date of this letter that all deposits of K06l
electric arc furnace dust and contaminated material have been
removed.”
(Pet.
Ex.
11
p.
5.)
Conditions 15
(b)
(i—ui)
specifically require
24 additional boring and sampling points
throughout the 25 acre site to be analyzed by the Agency to
determine
if any portions of the 25 acre site can be eliminated
from RCRA closure.
(Id.)
Thus,
the Agency
is requiring RCRA
closure of the entire site or demonstration that all
1(061 has
been removed.
According to the January
31, 1985 closure plan, Ceco’s
methodology
for the removal of K061 included a drilling and
sampling program.
This program consisted of placing a series of
“17 borings
in the fill”
to the top of the bedrock and excavating
an exploratory trench west
of the former storage area.
Additionally, nine test pits surrounding the trench were dug.
(Pet.
Ex.
1
p.
2—2).
Ceco described furnace dust
in its closure
plan stating that:
“physically,
the dust exists as
a fine
particulate.”
(Id.)
Ceco described its excavation process, which
would
include identification of furnace dust and separation,
stating that:
Fill material that is obviously not furnace
dust will be removed from the immediate area
and stored for eventual replacement after
excavation operations are completed.
Fill
material which
is believed to be other than
furnace dust, but nonetheless closely exhibits
the physical characteristics of furnace dust
will be taken to the separation process area
for further mechanical separation.
(Pet.
Ex.
1 p.
4—3).
Other fill materials at the site included large boulder-size
slag, wood and finer grained slag;
these materials are not as
fine as the dust and have a different color.
(Pet.
Ex.
3 p.
11).
Ceco also indicated that at the very early stages of
development of the closure plan NUS “gathered information from
former employees concerning the probable locations of the smaller
furnace dust deposits”.
(Pet.
Br.
p.5).
Ceco in its brief indicated that the next step in the
methodology was to determine
if the electric arc furnace dust had
117—30
—7—
a chemical “fingerprint”.
(Pet.
Br.
p.
6).
After conducting EP
toxicity analyses on thirty—six samples
of material NUS
determined that a chemical test could not be developed and
determined that it would have to rely on visual identification.
(Pet.
Br.
p.
6).
(See Issue 3).
In
fact, NUS’s project manager
for Superfund contracts, George Gardner, testified that “as a
general matter,
the visual classification method
is the most
widely used method in subsurface investigations for classifying
materials present
in
the subsurface.”
(Tr. p.
28).
The Agency maintains that Ceco has not demonstrated that all
electric arc furnace dust has been removed from the site and that
therefore,
the site does pose
a threat to human health and the
environment.
(R.
Br.
p 9).
The Agency is primarily concerned
with Ceco’s visual identification of electric arc furnace dust
and the apparent discrepancy in the color of substances
identified as electric arc furnace dust.
By Ceco’s own admission
it was not until excavation began that NUS and Ceco discovered
that
1061
could be a color other than black.
In response to
direct examination,
Mr. Gardner explained that when excavation
began
it
was
noted that there was also a fine—grained brown
material which looked like furnace dust coming out of the
baghouse.
“And at that point
in time,
it was decided that
the
color was not the proper criteria
to base the excavation on.”
(emphasis added)
(Tr.
p.
70).
Excavation of furnace
dust
did not
begin until September
7,
1985, three months after the Agency had
approved the initial closure
plan.
The Agency’s concern over identification of
1061
was clear
as early as the March
29, 1985 letter from the Agency
disapproving the closure plan.
That letter included several
questions which directly questioned the visual identification of
electric arc furnace dust.
That letter specifically questioned
“what
is the criteria for
‘obviously not furnace dust’” and “what
is the criteria for
‘closely exhibits the physical
characteristics of furnace dust.’”
(Pet.
Ex.
2
p.
3).
Ceco
responded that the criteria was based on the distinctive physical
appearance of dust versus the other waste at the
fill.
Ceco
stated that
“the dust
is black and has a distinctive fine—grained
texture” and that other materials which closely exhibit physical
characteristics of furnace dust are
“very fine grained
(silt—
sized) material that is black or dark gray in color”.
(Pet.
Ex.
3
p.
11).
In addition, Ceco described the physical characteristics
and chemical composition of the slag and mill scale at the site.
The fact that the differing color was not discovered until
excavation began led the Agency to be concerned that material
which exhibited similar characteristics
to furnace dust but was
not black, was ignored.
Charles
Zeal,
a professional engineer
with the Agency, expressed his understanding of Ceco’s
methodology for locating
061
as “if there was brown material
there,
in
the borings
that according to my understanding, would
have been ignored and that area would not have been included in
the next step of
investigation.”
(Tr. p.
126—127).
If such
117—31
—8—
material were ignored and was
in fact 1061,
Ceco would not have
removed all the electric arc furnace dust from the site.
The methodology for locating the dust was developed
precisely because of the fact that neither Ceco nor NUS could be
certain of the amount of or location of
1061
remaining on the
site.
Thus,
the Agency’s concern over the apparent color
discrepancy is especially significant.
Ceco calculated the
approximate amount of dust left on the site at 12,500 cubic
yards, after
the removal of 10,000 cubic yards
in 1981—1982.
Thus, Ceco and NUS were working from approximations in amount and
location of dust left at the site.
The Agency stated that these
facts led to the question “how much non—black
1061
dust was
missed,
ignored and not excavated by NUS before they realized
that the material that was grey or brown may also be
1061
dust.”
(R.
Br.
p 16 and 17).
Ceco’s responseto
the Agency’s concern focuses on two main
factors.
The first factor
is that the Agency has “improperly
focused on the adjective
‘black’
to describe the furnace dust
deposits.”
(Pet.
Br.
p.
16.)
A subfactor of significance
to
both the Agency and Ceco is whether or not Ceco informed the
Agency of
the color discrepancy.
The second factor
is that color
was not
the sole or even the determinative criterion in Ceco’s
methodology
for locating and excavating 1061
at the site.
In
response to these factors, Ceco maintains that “almost
a year
before the Agency made the determination from which Ceco appeals,
Ceco emphatically and unambiguously advised the Agency that color
was
not
a relevant factor
in identifying subsurface dust
deposits.”
(Id).
In fact,
Ceco’s January 1985 closure plan
described the physical characteristics of
1061,
but did not
include color
in that description.
In response to the second factor, Ceco maintains that “the
record shows that color, even at the outset of this six—year-old
investigation, was never,
by itself,
a determinative factor.”
(Pet.
Br.
p.
15).
Ceco stated in its brief
that:
“Gardner
testified that in making the initial borings
to locate the
furnace dust boundaries
in 1983 and 1984,
‘it wasn’t strictly the
black appearance that we based those boundaries
on’
(Tr.
215)
Rather,
texture and the presence of any layered material deposed
in lenses,
like those created by deposition
in
a water slurry,
controlled
.
.
.“.
(Pet.
Br.
p.
15).
Mr. Gardner further
testified that:
“it
is my professional opinion that NUS located
and removed all subsurface electric arc furnace dust deposits,
and also obviously a great
deal of non—hazardous material as
well.”
(Tr.
p.
31—32).
Ceco’s responses are inadequate.
Although Ceco did inform
the Agency by letter of the color discrepancy,
that letter was
not sent or
received by the Agency until November of
1985.
That
letter was
a response to concerns that the Agency developed after
the site visit
in September of 1985.
Thus,
even
though Ceco had
known of the differing color, Ceco did not inform the Agency
117—32
—9—
until after the site visit.
Further, Ceco did describe
1061
using the adjective “black”
in response to direct questions by
the Agency concerning identification of
1061
in the March
29,
1985 letter.
The record does indicate that color was not the sole
criterion used by Ceco in identifying 1061.
Conditions
3 and 16
also speak to the Agency’s concern over the methodology used by
Ceco and NUS
in locating and extracting
the electric arc furnace
dust.
However, Ceco’s methodology for locating electric arc
furnace dust did rely extensively on visual identification.
By
Ceco’s own admission,
“once full—scale excavation revealed that
subsurface furnace dust deposits
ranged from black
to brown and
intermediate shades,
NUS refined the color criterion to remove
all fine—grained densely-packed deposits
in the subsurface as
if
they were furnace dust deposits”.
(Pet.
Br.
p.
13)
(emphasis
added).
Clearly, Ceco and NUS did not discover the color
discrepancy during the actual site investigation and therefore
the Agency’s concern seems valid.
The Board finds
that Ceco has
not established that its closure plan, absent these conditions
imposed by the Agency,
would not violate the Act or the Board’s
rules.
ISSUE
3
The third issue to be considered,
which relates directly to
the issue discussed above,
is stated by Ceco as “whether the
Agency’s requirement that Ceco perform EP toxicity analyses on
samples from subsurface borings——and to supply these analyses
to
the Agency for its evaluation
is
arbitrary and capricious”.
(Pet.
Br.
p.
2).
This issue relates
to conditions
15 and
16.
Conditions 15 and
16 would require Ceco to lay out
a new 24 point
grid across the site and to bore and continuously sample the fill
material to the depth of the bedrock at the sampling points.
Ceco estimates that the cost of this additional testing would be
one hundred thousand dollars
($100,000).
(Pet.
Br.
p.
17—18).
As previously stated,
the identification of dust deposits
was done using both borings and trenchings as well as other
analyses of
the subsurface based on historical information.
Ceco
in its brief indicated that
the next step in the methodology was
to determine
if the electric arc furnace dust had a chemical
“fingerprint”.
(Pet.
Br.
p.
6).
After conducting EP toxicity
analyses on thirty—six samples of material NUS determined that
a
chemical test could not be developed and recognized that
it would
have to rely on visual identification.
(Pet.
Br.
p.
6).
However
in the January 31,
1985 closure plan, Ceco stated that “flurnace
dust was then visually identified from the samples and confirmed
using EPA
sic
Toxicity analyses.”
(Pet.
Ex.3 p.10).
It
is
important
to note that the chemical constituents for which
electric arc furnace dust
is
a listed hazardous waste are lead,
cadmium, and hexavalent chromium.
According to the Agency these
constituents are not major constituents of either mill scale
or
117—33
—10—
slag,
the remaining materials which were primarily disposed of at
the site.
(Ag.
Br. p.10).
Ceco believes that the data produced under condition 15
would be uninterpretable.
Both the Agency expert, Charles Zeal,
and the NUS expert, Mr. Gardner,
agree that there
is no chemical
analysis, which taken alone, would identify 1061.
(Pr. p.
27 and
163).
Therefore, Ceco
is concerned that it “could perform all of
condition 15, an indeterminate number of samples and analyses,
and find that no samples exhibited EP toxicity for any of the
three constituents for which 1061
is listed, and still be no
closer
to demonstrating
to the Agency that all furnace dust has
been removed.”
(Pet.
Br.
p.
19).
Ceco further stated that the
testimony of Charles Zeal “stands as an Agency admission that
conditions
15 and 16 are arbitrary and technically infeasible in
their entirety.”
Ceco also maintains that the EP toxicity analyses were used
“as a tool,
no less and no more,
to suggest
the sub—surface
presence of furnace dust.”
(Pet Reply Br.
p.
7).
Thus,
performance of
the EP toxicity analyses would not demonstrate
that all electric arc furnace dust has been removed.
Therefore,
Ceco submits that “the Agency’s brief should stand as an
admission that EP toxicity analyses would not assist Ceco in
meeting
its regulatory burden.”
(Pet. Reply Br.
p.
B).
The Agency states
in
its brief
that “to
date,
Ceco has not
produced any documentation that demonstrates that all
1061
dust
has been removed from the areas of
the site which were to be
cleaned closed.”
(Ag.
Br.
p.
34).
The Agency believes that,
until Ceco can demonstrate that all
1061
dust
is removed, Ceco
cannot demonstrate that its closure plan will not violate the Act
and the Board’s rules.
To that end the Agency points out that:
Electric arc furnace dust
is a listed
hazardous waste because of three hazardous
constituents:
Hexavalent chromium, lead and
cadmium
(Tr.
p.
24). This was the testimony
of Mr. Gardner, Ceco’s witness.
Lead,
cadmium
or hexavalent chromium were not major
constituents
of the slag
(Tr. p.
59).
The
April
30, 1985 document also stated that
mill
scale was a common waste at the site and
that
it was primarily iron oxide,
black
in color
and powdery.
(Ag. Br.
p.
10—11).
Thus,
it
is the Agency’s position that the EP toxicity analyses
of the samples
in conjunction with physical examination “would be
indicative that the material was 1061
dust.”
(Ag.
Br.
p.18).
The Agency also points out that on both the color
issue and
the issue of EP toxicity analyses, Ceco’s testimony at hearing
contradicted the information originally provided to the Agency
in
117—34
—11—
Ceco’s submittals.
The Agency maintains that Ceco had identified
1061
dust as being black but at hearing stated that it could be
“from black to gray to dark brown
(Pr. p.
29).”
(Ag.
Br.
p.
16).
Next the Agency stated that Ceco indicated in its
submittals that EP toxicity analyses were used to confirm
1061
dust,
but at hearing indicated that there was no chemical
analyses which would identify
1061
dust.
(Ag. Br.
p.
17).
These apparent contradictions lend credence to the Agency’s
concern as
to whether all
1061
dust has been removed.
A review
of the record clearly indicates that NUS and Ceco relied on both
physical characteristics and EP toxicity analyses
in determining
locations of electric arc furnace dust at the site.
The fact
that Ceco was not aware of the color differential until after
excavation began
is a grave concern.
In addition,
the Agency
appears
to be asking Ceco to perform additional analyses
in the
same manner
as Ceco maintains
it had done initially.
These
additional analyses, although costly to Ceco,
do not appear to be
unreasonable given
the facts disclosed by the record.
Therefore,
the Board finds that Ceco has not met its burden of proof
on this
issue and conditions
15 and 16 must stand.
ISSUE
4
The fourth
issue
in this case
is whether or not Ceco has
properly accounted for potential windblown and waterborne
dispersal of excavated dust.
This
issue relates
to condition
3.
Condition
3 would require Ceco
to
take “surface soil/fill
samples” around the perimeter
of
the entire
25 acre site
at
300
feet intervals.
Those samples would then be analyzed using
EP
toxicity analyses.
(Pet.
Ex.
11 p.
3).
As previously discussed,
Ceco’s 1985 closure plan called for
the excavation of areas which were identified as containing
1061
dust and separation of the dust from other admixed materials.
The separation process was to be undertaken by first placing the
excavated materials on the surface to dry and then,
after
the
material had dried sufficiently, placing
it through a mechanical
separation device which would run the materials through a one
quarter inch screen.
Any materials that ran through the screen
would be considered
1061
dust.
Over 32,000 cubic yards of
material was excavated in an attempt to account for approximately
2,500 cubic yards of
1061
dust.
Due
to the application of the hazardous waste mixture rule
(35 Ill.
Adm. Code 721.103),
the Agency required Ceco to
demonstrate
that “absolutely no trace of electric arc furnace
dust remained on the larger—than—one—quarter inch portion of the
admixed material.”
(Pet.
Br.
p.
21).
Because of the expense of
disposing of the admixed material off—site, Ceco proposed
modifying its closure plan to provide for on—site disposal of the
admixed waste.
117—35
—12—
It
is the actual separation process which lead to the
Agency’s inclusion of condition
3
in the September
11,
1986
closure plan approval.
The Agency’s concern was that the
separation process and
the stockpiling would result
in
contamination of the site because of the potential for the
material being separated
to be windblown.
To alleviate this
concern Ceco proposed to remove the top six inches of material
from those portions of the site surface that had come into
contact with the admixed waste.
(Pet.
Br. p.22).
Ceco further
proposed to remove the top three
inches of surface material from
a circular area within
a 100 feet radius of the separation
area.
(Pet.
Br.
p.
25).
The Agency’s concern over potential windblown material is a
direct result of the site visit made by the Agency on September
18, 1985.
Mr.
Zeal and Lawrence Eastep visited the site for
the
Agency and observed the excavation and separation process being
carried out.
(Stip.
p.
5).
Material which resembled
1061
dust
was
also observed on the surface around the separation area.
Mr.
Zeal testified that the admixed stockpile was not covered and
that the piles were exposed to the atmosphere and environment.
(Tr.
p.
124 and 131).
The Agency’s brief summarizes Mr.
Zeal’s
testimony stating that:
the separator process was started up while
they
Mr.
Zeal and Mr.
Eastep
were at the
site on September
18,
1985
(Tr. p.124).
At
that
time,
Mr.
Zeal noted a visible amount of
1061
dust being blown off by the wind that day
(Tr.
p.
125).
He observed the blowing or
drifting of what was
to be
1061
material
coming off the conveyor, in other words,
a
large part would
fall to the pile and another
portion of
it would be drifting away
(Tr.
p.
125).
The area around the separator process
was covered with a brownish dust which
appeared to be very similar
in both color and
texture to the sample of
1061
dust that they
Mr.
Zeal and Mr. Eastep
were shown by the
NUS people that same day
(Tr. pp 125—126).
(Ag. Br. p.27).
Ceco maintains that its proposal for removal of surface
material more than accounts for all windblown hiaterial.
Ceco
points out that the separation only operated for
64 hours.
(Pet.
Br.
p.
20).
Ceco further points out that the site
is located in
a steel mill “backyard”
in a heavily industrialized area, and has
been used as a repository of by—products of steel production for
years.
Further, Ceco maintains that a separation process that
operated for 64 hours over
“four years ago should be a non—
issue.”
(Pet. Reply Br.
p.
11).
Ceco’s expert also testified that the admixed material was
117—36
—13—
“primarily large cobbled size and boulder size slag, mixed in
with sand size material, all the way down to the very fine
portion.”
(Tr.
p.
76).
Mr. Gardner further testified that the
material was very wet and “and it could not blow off the pile
because of those factors.”
(Tr. p.
77).
Mr. Gardner also
offered his
judgment that Ceco’s proposal would be more than
sufficient
to remove any dust which may have been windblown
during
separation.
(Pr. p.
54).
Ceco argues that the Agency’s proposed perimeter sampling
program is similar to the proposed sampling program described
under
issues
1 and
2 above.
Therefore, Ceco argues that “even
if
Ceco were to yield to the Agency’s demand and conduct the
additional surface sampling,
Ceco would be no closer to
establishing, definitively, that surface contamination is not an
issue at
the site.”
(Pet.
Br.
p.
24).
The Agency argues that Ceco has not established that the
material on the surface was not
1061
dust.
The Agency emphasizes
that Ceco’s expert, Mr. Gardner, testified that the material on
the surface “resembled a sample of fresh electric arc furnace
dust which NUS’s on—site engineer had acquired and produced for
the Agency representatives.”
(Tr.
p.
35).
Mr. Gardner
further
testified on cross examination that anything below the surface
which had a fine grained texture was assumed
to be
1061
dust and
yet the brownish fine grained material on the surface of the site
was assumed not to be
1061
dust.
(Tr.
p.
91).
The Agency
maintains that the testimony of Mr. Gardner
is not reasonable.
(Ag.
Br.
p.
28).
Ceco’s proposal for the removal
of surface material which
may have been contaminated
“was
based on a practical judgment
call.”
(Tr.
p.
99).
Ceco did not base
its proposal on sampling
or analyses.
Therefore,
the Agency believes the proposal was
inadequate.
(Ag.
Br.
p.
9).
The position Ceco has taken
in identifying
1061
dust
below
the surface is that
if a material exhibited the physical
properties of
1061,
then
it was considered
1061
dust.
Ceco can
not now claim that mere resemblance to 1061
is not sufficient to
identify material as potential
1061
dust.
The Agency’s
inspectors viewed material which exhibited the properties
of
1061
dust on the surface.
Ceco did not demonstrate that the material
was not
1061
dust.
Therefore,
the Board finds that condition
3
is necessary to insure that the Act and the Board’s regulations
will not be violated and the condition must stand.
ISSUE
5
The fifth issue
to be decided
in this case is whether or not
Ceco’s post—closure groundwater monitoring plan is sufficient
to
meet the requirements of the Board’s
rules and the Act.
This
issue relates to conditions
2
(d) and
(e).
Ceco specifically
117—3 7
—14—
objects to conditions
2
(d) and (e) relating to the Agency’s
choice of groundwater monitoring parameters and analytical
methodolgy included
in the proposed post—closure groundwater
monitoring plan for the regulated unit and because of the
requirement
to analyze samples for unfiltered metals.
The interpretation of the Board’s rules at
35 Iii. Adm. Code
725:Subpart F
is a key factor
in examining the arguments
concerning conditions
2(d) and 2(e).
Condition 2(d) requires
Ceco to monitor groundwater for certain parameters listed
in
Section 725.192(b)
of the Board’s rules.
Ceco and the Agency
disagree on the application of that4rule.
The two primary areas
relating to this issue which must be addressed are:
1)
whether
the Agency has the authority to waive the monitoring of
groundwater parameters;
and 2)
if the Agency does have such
authority, whether Ceco demonstrated that it should be granted
such a waiver.
In support of Ceco’s position, Ceco cites Section 725.190(a)
and
(C).
Ceco maintains that when Sections 725.190(a)
and
(c)
are read in conjunction
with
the other provisions of Subpart
F,
it
is clear that those two Sections allow for
the waiver
of
parameters from the groundwater monitoring requirements.
(Pet.
Br.
p~
28).
Section 725.190
(a) states:
The owner or operator of a surface
impoundment,
landfill or
land treatment
facility which
is used
to manage hazardous
waste must implement a groundwater monitoring
program capable of determining the facility’s
impact on the quality of groundwater in the
uppermost aquifer underlying the facility,
except as Section 725.101 and paragraph
(c)
provide otherwise.
Section 725.190
(c)
states,
in part:
All or part of the groundwater monitoring
requirements of this subpart may be waived
if
the owner or operator can demonstrate that
there is
a low potential for migration of
hazardous waste or hazardous waste
constituents from the facility via the
uppermost aquifer to water supply wells
(domestic,
industrial or agricultural)
or to
surface water... .(emphasis added.)
The Agency maintains in its brief and testimony that all the
parameters set forth in Section 725.192(b) must be included in
117—38
—15—
the groundwater monitoring.
Section 725.192(b)
provides that
“the
owner or operator must determine the concentration or
value of the following parameters in groundwater samples
in
accordance with paragraphs
(c) and
(d)
of this section.”
(emphasis added).
Subsections
(l)—(3) of Section 725.192(b)
set
Corth specific parameters including those in Appendix III.
The
Agency has altered its interpretation of Section 725.192(b)
during the course of this case.
In fact,
the interpretation
delineated
in the Agency’s brief is not the interpretation
enumerated
in the September 11, 1986 closure plan.
The Agency,
in condition 2(d) of the September
11,
1986 closure plan required
monitoring
for the following parameters:
Arsenic,
Barium,
Cadmium, Chromium, Hexavalent Chromium,
Lead, Mercury, Selenium,
Silver,
Chloride,
Iron, Manganese,
Phenols,
Sodium,
Sulfate, pH,
Specific Conductance, TOC, TOX.
(Pet.
Ex.
11 p.
2).
The
parameters set forth by the Agency do not include several
parameters included in Section 725.Appendix III.
The Agency’s
expert,
Cindy Davis, testified that these parameters were not
included because her boss felt that Ceco had made a good case for
not monitoring for pesticides.
(Tr.
p.
189).
The Agency’s basis
for
this change
of policy according to
testimony by Ms. Davis,
is that “ut’s
Section
725.192(b)
a
Board regulation and the Agency doesn’t have the authority to
change a regulation”
(Tr.
p.
195).
It would appear that the
Agency is arguing that all parameters listed
in Section
725.192(b)
should be included even though
the Agency only
included particular parameters in the September
11,
1986 closure
plan.
Section 725.192(b)
clearly states that the
“owner or
operator must determine the concentration or value”
(emphasis
added) of the parameters listed
in subsections
(1) through
(3).
Therefore,
the plain language of the rule clearly indicates
that
the owner or operator
is required to monitor
for the parameters
set forth in subsection
(1) through
(3).
However, Section
725.192(b)
cannot be read without examining the other provisions
of Subpart
F.
Sections 725.190(a) and
(c) must also be examined.
The
plain language of Sections 725.190(a) and
(c) allows for waiver
of groundwater monitoring requirements of Subpart
F if certain
conditions are met.
These conditions allow for
a waiver
if there
is a demonstration
in writing that there
is a low potential
for
migration of hazardous waste and that such demonstration be kept
at
the site.
Based on the plain language of
35 Ill. Adm. Code 725:Subpart
F,
the Board finds that the Agency does have the authority to
waive the groundwater monitoring requirement of
35
Ill. Adm.
Code: Subpart
F.
The Board notes
that the Agency is correct
in
that the Agency does not have the authority to change a Board
rule.
However,
in this instance the rule allows the Agency to
waive the provisions of
another rule.
117—39
—16—
Having determined that the Agency does have the authority to
waive the monitoring requirements,
it must next be determined
whether Ceco should be granted such a waiver.
Section 725.190(c)
provides that the owner
or operator must demonstrate that there
is “low potential
for migration of hazardous waste
in hazardous
waste constituents from the facility”.
Ms.
Davis testified that
her boss “thought that Ceco made a good case for not having
to
analyze for the pesticides”.
(Tr. p. 189).
Therefore,
the
Agency’s September 11,
1986 closure plan specifically excluded
certain parameters.
Thus,
it would appear that the Agency
believed that Ceco had demonstrated that there is
a “low
potential for migration of” hazardous waste constituents and
implicitly waived the monitoring requirements
for the remaining
parameters.
Ceco’s proposal, as submitted to the Agency, proposed to
monitor for lead, cadmium, hexavalent chromium and turbidity as
“drinking water quality standards”, as well as chloride,
iron and
sulfate as “groundwater quality parameters” and for “groundwater
contamination indicators”,
pH, specific conductance and total
dissolved solids.
(Pet.
Br.
p.
28).
As previously stated the
Agency’s September 11,
1986 letter required monitoring
for
Arsenic,
Barium,
Cadmium, Chromium, Hexavalent Chromium,
Lead,
Mercury,
Selenium, Silver,
Chloride, Iron,
Manganese,
Phenols,
Sodium,
Sulfate,
pH, Specific Conductance,
TOC, TOX.
(Pet.
Ex.
11
p.
2).
Ceco stated in its brief that after considerable study,
NUS
determined that:
the natural dolomitic limestone bedrock
lyinq
beneath the site,
ensures that the groundwater
will
perpetually exhibit
a naturally high
pH.
This fact assures that heavy metals could
not be present
in solution and so could not
move appreciably.
(Pet.
Br.
p.
29).
This conclusion was supported by the testimony of Ceco’s expert
Mr.
Gardner.
Mr. Gardner’s qualifications include a Master’s
Degree in Geology from Kent State and engaging
in seventeen years
of geo—technical and hydrogeological work.
Mr. Gardner testified that:
Based on our groundwater monitoring work,
NUS
found that the presence of the massive natural
deposit
of dolomitic limestone beneath the
site effectively controls the groundwater pH
to the slightly alkaline side and contributes
to relatively high biocarbonate ion
concentrations.
As a consequence, even
if the
heavy metals contained
in the furnace dust
were to become soluble by the downward
117—40
—17—
movement of precipitation through the fill,
any heavy metals present
in solution would
immediately precipitate, forming solid
complexes which would not move further with
the groundwater.
(Pr. p.
25).
Therefore Ceco maintains that its groundwater monitoring proposal
is
“capable of determining the facility’s impact on the quality
of groundwater
in the uppermost aquifer underlying the
facility.”
(Section 725.190(a)).
The Agency maintains that Ceco’s groundwater monitoring
proposal
is not sufficient
to demonstrate that the Act and the
Board’s regulations would not be violated.
The Agency supports
its position with testimony from Cindy Davis.
Ms. Davis, who has
a Bachelor’s Degree in geology from Eastern Illinois University,
has been with the Agency for four and a half years and she
reviews records in groundwater monitoring programs.
Ms.
Davis
had previously reviewed
10 permits for hazardous waste
facilities.
Ms. Davis testified that she did not agree with the
conclusion reached
by NUS and Mr. Gardner because:
1061
is
a fine material that can be
transported
in the groundwater and that based
upon her experience, especially with
groundwater results
in the dolomite and at the
Joliet area,
she has seen migration of total
metals, suspended farther than
a few feet.
(Ag.
Br.
p.
25).
The issue
that must be considered
is whether or not the
Agency’s condition is technically justified.
The Board notes
that the implementation of a groundwater monitoring system in
accordance with
35
Ill. Adm. Code 725.Subpart
F to determine the
facility’s impact on groundwater requires the establishment of
background of all parameters
listed in Section 725.192(b).
In
the present context, as Ceco has not clearly demonstrated that
the site was used as
a monofill
for disposal of electric arc
furnace dust,
it
is reasonable for the Agency to include for
monitoring the parameters listed at Section 725.192,
except for
the pesticides and herbicides listed at Section 725.192(b)(l)
Endrin,
Lindane, Methoxychlor, Toxaphene,
2,4
—
D,
2,4,5
—
TI.
It should be noted that the groundwater monitoring plan is
part of an over-all closure plan.
The inclusion of parameters
listed at Section 725.192(b)
in the monitoring plan does not mean
that all of
the parameters will
be monitored during the entire
closure plan period.
The monitoring requirements which specify
the frequency and
the parameters to be monitored will
be
in
accordance with the Agency’s condition 2(f), which requires Ceco
117—4 1
—18—
to conduct sampling, evaluation and reporting
in accordance with
35
Ill. Adm. Code 725.192, 725.193, and 725.194 respectively.
In
particular,
the requirements set forth in Section 725.192(c)
requires the background concentration of all parameters listed in
Section 725.192(b)
to be established over
a one year period.
During the remaining period of the closure plan, only certain
groundwater quality parameters as prescribed
in 35 Ill. Adm Code
725.l92(b)(2) namely, Chloride,
Iron, Manganese, Phenols,
Sodium,
and sulfate and indicators of groundwater contamination
(pH,
Specific Conductance,
TOC, and TOX) are required to be monitored
at annual and semi—annual frequency respectively.
Considering that all of the parameters are monitored to
establish background, and only the indicator and groundwater
quality parameters are required to be monitored routinely at a
very low frequency, the monitoring requirements prescribed by the
Agency will not impose a undue burden on Ceco.
Therefore,
the
Board upholds the Agency’s condition 2(d) with changes to reflect
that all parameters in Section 725.192(b) must be monitored,
except for the pesticides and herbicides listed at Section
725. 192
( b)
( 1)
Next,
the Board will
review condition 2(e)
of
the September
11,
1986 letter.
Condition 2(e)
requires Ceco to analyze
groundwater samples on which metal analysis will
be conducted “to
be analyzed for total metals
(unfiltered).”
Ceco in
its petition
objected to condition 2(e);
however, Ceco does not specifically
address the issue of analysis for total metals
(unfiltered)
in
its brief
or testimony.
The Agency argues that because drinking water
standards are
“based upon total metals
.
.
.
it would be inappropriate
to
compare a dissolved metals concentration to a total drinking
water standard.”
(Ag.
Br.
p.
24).
Therefore,
the Agency
required the groundwater be analyzed for total metals.
The Board notes that Ceco,
in its April
30, 1985 response
to
the Agency’s March
30, 1985 letter, indicated “chemical analysis
results for groundwater” from 1983 as “filtered”
as well as
“unfiltered”.
(Pet.
Ex.
p.
6).
Because Ceco did not
specifically address its reasons for objection to condition 2(e)
the Board has no basis
for overturning the condition and,
the
condition must stand.
ISSUE
6
A sixth
issue which must be discussed is whether
or not Ceco
must include the 1061
dust pelletizer
(T04) unit
in its closure
plan.
Conditions
13 and 18 both apply to the T04 unit on the
site.
Condition 13 would require Ceco to provide a closure plan
including the T04 unit,
while condition 18 would require that the
117—42
—19—
facility meet the requirements of
35 Ill. Adm. Code 725:Subtitle
G,
if the facility
is to remain open.
The P04 facility had been identified as belonging to Ceco in
two Part A permit applications submitted
in 1980 and 1983.
(Ag.
Br. p.32—33).
Testimony by Charles Zeal indicated that
those
permit applications listed Ceco as the owner of the unit and on
the 1983 application listed Thomas Steel as the operator of the
unit.
(Tr.
p.
137).
Mr.
Zeal testified that:
“Section
725.210 requires the closure applies ~sic.
to both the owner and
operator.
And we were requesting a closure plan for the P04 unit
from Ceco, unless they could demonstrate that that
sic
unit was
not RCRA regulated.”
(Pr.
p.
137).
The Agency,
in its brief,
stated that
it took the position that the P04 unit was RCRA
regulated since “Ceco never demonstrated that
it wasn’t.”
(Ag.
Br. p.37).
As a result,
the Agency included conditions 13 and 18
in the September
11,
1986 closure plan approval.
Ceco in its petition did not specifically accept conditions
13 and 18;
however, when listing the contested conditions
in its
briefs Ceco only listed condition 13.
(Pet.
p.
8, Pet.
Br.
p.
1—
2,
Pet Reply Br.
p.
14).
tn
addition, Ceco did not argue
why
it
was not accepting conditions
13 and 18
in its briefs or
testimony.
The Stipulation of Facts which
was
submitted at
hearing does indicate that on “February
3,
1983,
Ceco sold
the
steel mill facility
to Thomas Steel Company,
its current
owner”.
However, this statement was not expanded on
in Ceco’s
briefs or testimony.
Therefore,
it
is not clear who retained
title to the T04 facility.
In fact the record of this case
contains no arguments by Ceco as
to why these conditions are
unacceptable.
Therefore,
the Board finds that conditions
13 and
18 shall remain as conditions
for closure.
CONCLUSION
Ceco filed this appeal
to contest the imposition of
Conditions
1,
2
(d—c),
3,
11,
13,
15,
16,
18 and 20
of
the
September 11,
1986 closure plan.
Based on the record before the
Board,
the Board finds that condition 2(d) should be struck.
The
Board further finds that the remaining conditions are necessary
to insure that the Act and the Board’s rules will not be
violated.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board strikes Condition 2(d)
of September 11,
1986
Modified Closure Plan
in
part and upholds the conditions as
modified.
117—43
—20—
The condition is modified to read:
The parameters listed at
35 Ill. Adm. Code 725.192(b) are to
be analyzed
,
except for the following:
Endrin
Lindane
Methoxychlor
Toxaphene
2,4
—
D
2,4,5
—
T
The Board affirms the imposition of conditions
1,
2(c),
3,
11,
13,
15,
16,
18 and 20.
Section 41 of
the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
1114, par. 1041, provides for appeal of final
Orders of the Board within
35 days.
The Rules of the Supreme
Court of
Illinois establish filing requirements.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certi~ythatthe ab
e Opinion and Order was
adopted on
the~6~-’ day of
__________________,
1990,
by
a
vote of
7-’o
~
A.
Dorothy M.
nn,
Cler
Illinois P
lution Control Board
117—44

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