ILLINOIS POLLUTION CONTROL BOARD
October 20,
1994
BURLINGTON ENVIRONMENTAL INC.,
)
Petitioner,
v.
)
PCB 94—177
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
STEPHEN
F. HEDINGER, NOHAN, ALEWELT,
PRILLAMAN, ADANI APPEARED ON
BEHALF OF THE PETITIONER;
JOHN
J. KIM APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by E. Dunham):
On June
9,
1994,
Burlington Environmental Inc.
(Burlington)
filed a petition for a variance from
35
Ill. Adm. Code
721.104(f) (3)
and
(4)
to the extent those regulations limit
the
quantity of media contaminated with acute hazardous wastes that
may be treated or stored during treatability studies.
On July 7,
1994, Burlington filed an amended petition pursuant to the
Board’s order of June
23,
1994.
Burlington seeks this variance
in order to enable it to use a large scale model to conduct
treatability studies of an innovative thermal technology for
treating contaminated soils.
In conjunction with its
variance
petition,
Burlington submitted a request for trade secret
protection for Exhibit
I
of its petition,
entitled “System
Overview: Burlington Environmental Inc.’s Mercury Recovery Pilot
System Revised Preliminary Description”
(System Overview).
On
July 21,
1994, the Board granted trade secret protection to
Exhibit
I.
A hearing on the petition was held on September 14,
1994,
in
Columbia, Illinois before hearing officer John Hudspeth.
Several
members
of the public attended the hearing.
On September 26,
1994, petitioner filed a closing brief and request for expedited
decision.
STATUTORY FRAMEWORK
The Board’s responsibility
in this matter arises from the
Environmental Protection Act
(Act)
(415
ILCS 5/1 et seq.
(1992).)
The Board is charged therein with the responsibility to “grant
individual variances beyond the limitations prescribed in this
Act, whenever it is found upon presentation of adequate proof,
that compliance with any rule or regulation, requirement or order
of the Board would impose an arbitrary or unreasonable
hardship”.
(415 ILCS 5/35(a)
(1992).)
The Agency is required to appear in
2
hearings
on variance petitions.
(415 ILCS 5/4(f)
(1992).)
The
Agency is also charged,
among other things, with the
responsibility of investigating each variance petition and making
a recommendation to the Board as to the disposition of the
petition.
(415 ILCS 5/37(a)
(1992).)
BACKGROUND
Burlington offers comprehensive waste management services
through a nationwide network of recycling and treatment
facilities,
consulting engineering offices, and waste
transportation hubs.
(Pet.
at 13.)
Burlington’s Columbia
facility,
including engineering offices and warehouse facility,
was founded nearly 20 years ago.
(Pet.
at 14.)
Burlington
employs 125 persons locally and contributes $5,400,000 in payroll
wages each year to the local economy.
(Pet.
at 14.)
The facility
is located in an industrial area with scattered residences,
light
industry and agricultural areas within a mile of the facility.
(Pet.
at 14.)
Burlington plans to test a newly developed thermal
technology for recovery of contaminants from media contaminated
with acute or non—acute hazardous waste at the Columbia, Illinois
facility.
(Pet. at 14.)
Burlington plans to use
a pilot—scale
treatment unit for processing 90 to 180 kg
(200 to 400 pounds)
of
mercury contaminated soil per hour.
(Pet. at
3.)
Batch tests
will vary in duration,
from a few hours to several hours at a
time.
(Pet.
at
16.)
Burlington intends to run the tests for a
two to four week period.
(Pet.
at
16.)
Batch runs may not always
run on consecutive days within the two to four week test period.
(Pet.
at 16.)
Burlington plans to use mercury contaminated soil as
received from an off-site location.
(Pet. at
3.)
Burlington does
not plan to add non-hazardous soil to the mercury contaminated
soil after it has been received at the facility.
(Pet. at
3.)
The mercury content of the soil
(which will be extracted for
recycling using Burlington’s thermal process
is 1.2
to 5.
(Pet.
at 7.)
Mercury contaminated soil
is listed as a D009 hazardous
waste, which
is considered
a non—acute hazardous waste.
(Pet.
at
7.)
Burlington contends that all processed materials will be
containerized and transported
off-site for proper disposal or
recycling.
(Pet.
at 17.)
Burlington asserts that the pilot
system was designed with regulatory compliance and better
resource management
in mind.
(Pet.
at 20.)
The system also
includes pollution control and monitoring systems.
(Pet.
at 24.)
REQUESTED RELIEF
The Board’s regulations provide special requirements for
3
samples undergoing treatability studies at laboratories or
testing facilities.
No more than 250 kg
(552.5
lbs)
of as
received hazardous waste may be subjected to treatability studies
in one day.
(35 Ill. Adm. Code 721.104(f) (3).)
As received
hazardous waste stored at the facility for treatability studies
can not exceed 1000 kg
(2210
lbs).
(35 Ill. Adm.
Code
721.104(f) (4)
.)
Burlington interprets the exclusion limits of Section
721.104(f) (3)
and
(4)
to apply to treatability testing of non—
acute hazardous waste in
its pure form,
exclusive of the media
contaminated with the waste.
(Pet.
at
6.)
Therefore, Burlington
contends that its proposed operation is below the exclusion
limits because the amount of actual mercury to be subjected to
the testing is well under the current regulatory limits.
(Pet.
at
6.)
The Agency has indicated its disagreement with this
interpretation to Burlington.
(Pet.
at
6.)
Burlington requests
the Board to find that the exclusion limits of Section
721.104(f) (3)
and
(4) apply to treatability testing and storage
of non—acute hazardous waste exclusive of the media contaminated
by those wastes.
(Pet.
at
10.)
In the event that the Board finds that Burlington’s
interpretation of the exclusion limits is incorrect, Burlington
requests a variance from the restrictions on the quantities of
non—acute and acute hazardous waste which may be treated or
stored during treatability studies.
(Pet.
at 11.)
Burlington
requests that the less stringent standards established
by
the
federal treatability studies sample exclusion rules,
40 CFR
§261.4(f) (3)
and
(4)1,
be applicable to the treatability studies
conducted at its Columbia facility.
(Pet.
at 12.)
Burlington
requests that relief be granted retroactively to June 27,
1994.
(Pet.
at 13.)
Burlington is requesting that the term of the
variance be until such time as the Board adopts regulations
consistent with the U.S.
EPA or until a site-specific rule or
adjusted standard is granted or until
18 months after the denial
of a site—specific rule change or adjusted standard.
(Pet.
at
13.)
The Board finds that the exclusion limits of Section
721.104(f) (3)
and
(f)
(4) apply to the contaminated
media and not
solely to the amount of hazardous waste.
The Board finds this
interpretation to be consistent with the federal regulations upon
which the Board’s regulations are based.
Therefore, the Board
finds the pilot testing proposed by Burlington would be
in
1
On February
18,
1994,
the United
States Environmental
Protection Agency
(U.S.
EPA)
revised its rules on treatability
studies sample size.
The final rule was published at
59 FR 8362.
The Board today adopts amendments to Sections 721.104(f)
(3) and
(4)
in an identical—in-substance rulemaking in R94—17.
4
violation of the Board’s regulation and that the petition for a
variance is appropriate.
Therefore,
the Board proceeds to review
the petition for variance.
AGENCY RECOMMENDATION
The Agency filed its recommendation on August 8,
1994.
The Agency reports that
it has investigated the variance
petition.
(Ag. Rec.
at
1.)
The Agency has also provided public
notice of the petition and has received at least one telephone
inquiry,
a letter from a citizen of Columbia and a petition in
opposition
to the variance signed by 367 citizens of Columbia.
(Ag. Rec. at 1.)
The Agency recommends that the Board grant the variance
until the formal adoption of the identical-in-substance
rulemaking.
(Ag. Rec.
at 5.)
The Agency recommends that the
variance be granted retroactively.
(Ag.
Rec. at 5.)
The Agency
also recommended a reporting condition be added to the variance
(Ag. Rec.
at
5)
but at hearing the Agency withdrew the request
that the condition be made part of the variance because reporting
would be required under other regulations.
(Tr. at 47.)
PUBLIC COMMENTS
At the hearing,
10 members of the public presented testimony
on their concerns on the testing to be done by Burlington.
The
Board also received several written comments from members of
the
public.
A petition in opposition to the variance with 511
signatures2 was presented at the hearing.
(Exh.
1.)
The public comments express concerns on the effects of
mercury on humans.
(Tr.
at 53,
66,
97,
106,
108 and 124.)
The
comments also express a concern of the production of dioxin from
the operation.
(Tr.
at 55.)
The commenters are especially
concerned about the proximity of the facility to residential
areas and the possibility of pollutants being transmitted by air
and water to the residents.
(Tr.
at 59.)
The commenters believe
that a site away from
a residential population would be more
appropriate.
(Tr. at 59 and 108.)
There
is a concern on the
effect on the resale value of homes in the area.
(Tr. at 69
and
106.)
Comments were also presented questioning the suitability
of the operation for an area zoned for light industry.
(Tr. at
105 and 111.)
The Mayor of Columbia also testified at the hearing in
support of Burlington and the granting of the variance.
(Tr.
at
2
This is the same petition that was submitted with the
Agency recommendation but additional signatures were obtained
since the submission
of the petition to the Agency.
5
101.)
The Board also received
a copy of a letter from
the Mayor
to the Agency stating the building inspector/zoning administrator
will investigate and conduct on-site inspections of the facility
to insure that there is no violation
of the city’s zoning
ordinances.
HARDSHIP
Burlington contends that
it must run the system at full
strength
(two to four hundred pounds of contaminated soil per
hour)
to obtain the necessary information from the pilot test.
(Pet.
at 7.)
Burlington maintains that without the variance,
Burlington will be unable to conduct meaningful pilot test.
(Pet.
at 26.)
Burlington contends that failure to begin the pilot test
in June will result
in the loss of the only potential client with
an immediate need for the technology.
(Pet.
at
16.)
Burlington
maintains that failure to meet the planned schedule for testing
may result in a lost economic opportunity to develop this
technology for years, and potentially permanently.
(Pet.
at 16.)
The Board finds that Burlington has presented adequate proof
that immediate compliance with the treatability exclusion
limitations would impose an unreasonable or arbitrary hardship on
Burlington.
The hardship faced by Burlington
is the inability to
conduct meaningful pilot tests at the lower limits.
Burlington
is also subject to
a hardship in that the current limitations
prohibit the timely development of the treatment system to meet
potential customers’
current needs.
ENVIRONMENTAL
IMPACT
The mere showing that compliance with a Board regulation
would impose a hardship upon a petitioner
is not sufficient
for a
variance to be granted.
The petitioner must also demonstrate to
the Board’s satisfaction that the hardship outweighs any injury
that would result from grant of the variance.
This weighing of
the consequences of
a variance was recently capsulized by the
appellate court in Marathon Oil
Company
v.
IEPA and PCB (5th
Dist.
1993)
610 N.E.2d 789,793,
182 Ill.
Dec.
920,
924:
The petitioner must
***
show that the hardship it
will
encounter from the denial of the variance will outweigh
any injury to the public or environment from the grant
of the variance.
Only
if the hardship outweighs the
injury does the evidence rise to the level
of an
arbitrary or unreasonable hardship.
Commenters have raised several issues relating to the
effects of mercury on humans.
In addition, residents surrounding
the facility have expressed their concerns on the possibility of
air pollution and contamination of groundwater due to releases of
mercury from the facility.
However, Burlington maintains that
6
the proposed system is
a closed system and that all material will
be containerized and properly disposed or recycled.
While the Board recognizes the concerns presented by the
citizens,
the record does not support a finding that the granting
of the variance will result in an adverse effect on the
environment.
The operations at the Burlington facility are
required to comply with all provisions of the Act and the Board’s
regulations.
Compliance with these regulations will assure that
any emissions from the facility do not exceed the specified
levels so as to adversely effect the environment and cause injury
to the public.
In addition, the exclusion levels requested by
Burlington are the levels allowed by federal regulations which
have been determined by the federal government to represent a
level which does not create a threat to the human health or the
environment.
CONSISTENCY
WITH
FEDERAL
LAW
Burlington maintains that the proposed variance is
consistent with federal law.
(Pet.
at 29.)
U.S. EPA expanded an
existing exclusion from the definition of solid waste for varying
amounts of hazardous waste used for treatability study.
The
amendments to
40 CFR 261.4(e) (2),
(e) (3), and
(f) (3) through
(f)(5)
(corresponding with 35
Ill.
Adm. Code 721.104(e) (2),
(e) (3), and
(f) (3)
through
(f) (5))
occurred at 59
Fed. Reg.
8362,
on February 18,
1994.
The amendments essentially changed the usage
“soils, water
or debris contaminated
with
hazardous waste” and expanded the
amounts of these materials that are exempted.
Unaffected was the
amount of hazardous waste itself that is exempted from regulation
as hazardous waste.
Thus,
exempted for study are up to 10,000 kg
(formerly 1,000 kg)
of media contaminated with hazardous waste or
up to 2,500 kg
(formerly 250 kg)
of media contaminated with acute
hazardous waste.
The exemption remains for up to 1,000 kg of
hazardous waste or up to
1 kg of acute hazardous waste.
Also,
the generator or accumulator may ship in a single shipment up to
10,000 kg (formerly 1,000 kg)
of media contaminated with
hazardous waste or 2,500 kg
(formerly 1 kg)
of media contaminated
with acute hazardous waste.
Unaffected was the shipment of 1,000
kg of hazardous waste or
1 kg of acute hazardous waste.
The Board finds that the variance
is consistent with federal
law.
Burlington
is seeking a variance to impose the less
stringent limitations recently adopted by the U.S.
EPA.
The
Board is proceeding with the adoption of the U.S. EPA amendments
to the treatability exclusions
in the identical-in-substance
rulemaking R94-l7,
In the Matter of RCRA Subtitle C Update,
USEPA.
The Board today has adopted a separate opinion and order
in R94-17 adopting the proposed amendments,
however,
the Board
will delay filing of the adopted amendments for 30 days
~1
specifically to allow U.S.
EPA to comment on the adopted
amendments.
COMPLIANCE
Burlington contends that at the time
of the filing of the
petition
it was
in compliance with the Act and the Board’s
regulations.
(Pet.
at
17.)
Burlington seeks to maintain
compliance through this variance.
(Pet.
at
17.)
Burlington also
intends to pursue a site-specific rule change or an adjusted
standard to maintain long—term compliance.3
(Pet.
at 19.)
Burlington will also be
in compliance when the Board adopts the
limitations adopted
in the federal regulations.
Burlington also
contends that if the variance is denied,
the pilot test may be
moved to another state or Canada to avoid noncompliance.
(Pet. at
23.)
RETROACTIVE APPLICATION
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.
(LCN Closers,
Inc.
v.
EPA
(July
27,
1989), PCB 89—27,
101 PCB
283,
286; Borden Chemical
Co.
v.
EPA (Dec.
5,
1985),
PCB
82—82,
67 PCB 3,6; City of Farmington
v.
EPA
(Feb.
20,
1985), PCB
84—166,
63 PCB 97,
98; Hansen—Sterling Drum Co.
v. EPA (Jan.
24,
1985), PCB 83—240,
62 PCB 387,
389; Village of Sauget v. EPA
(Dec.
15,
1983), PCB 83—146,
55 PCB 255,
258; Olin Corp.
v. EPA (Aug 30,
1983), PCB 83—102,
53
PCB 289,
291.)
A variance is not retroactive
as
a matter of law, and
the Board does not grant variance retroactivity unless
retroactive relief
is specially justified.
Deere
& Co.
v.
EPA,
(Sept.
8,
1988)
PCB 88-22,
92 PCB 91,
94
(citations omitted).
Absent
a waiver
of the statutory due date,
Section 38(a)
of
the Environmental Protection Act requires the Board to render a
decision on a variance within 120 days of the filing of a
petition.
(415 ILCS 5/38.5)
(1992).)
For this reason,
a
petitioner that wishes a variance to commence by a certain date
must file its petition at least 120 days prior to the desired
inception date.
(EPA v.
Citizens Utilities
Co.
of Illinois
(Jan.
12,
1984),
PCB 79-142,
56 PCB
1,
4.)
Burlington should have
filed its petition by February 25,
1994
in order to file 120 days
~
Burlington has not filed a petition for a site—specific
rule or an adjusted standard with the Board.
However, Burlington
has filed a rulemaking petition
in R94-18,
requesting amendments
to 35 Ill.
Adm.
Code 721.104(f) (3)
and
(f)(4).
8
prior to the desired inception date of June 27,
1994.
Although
retroactive relief may be justified where
a petitioner has filed
a timely variance petition, retroactive relief is not granted
where the delay was through some fault of the petitioner.
(DM1 v.
IEPA (December 19,
1991), PCB 90—227,
128 PCB 241,
246.)
Burlington contends that it learned that
a variance may be
necessary to conduct the pilot test
in early 1994.
(Pet.
at 5.)
Burlington discovered that the Agency interpreted the
treatability exclusion limitations to apply to the amount of
contaminated media and not to the amount of hazardous material in
its pure form,
exclusive of the media.
(Pet.
at 6.)
On April 27,
1994, Burlington requested a provisional variance from the
Agency.
(Pet.
at
5.)
On May 26,
1994,
the Agency denied the
request for a provisional variance.
(Pet.
at 6.)
The petition
for a variance was filed on June
9,
1994.
Burlington contends
that the petition for variance was compiled as expeditiously as
possible following the Agency’s denial of a provisional variance.
(Pet.
at 12.)
The Board finds that retroactive relief is appropriate
because the circumstances surrounding the filing of this petition
present an unusual situation.
The corresponding U.S.EPA
amendments which contain the relief Burlington seeks were final
on February 18,
1994.
The Board
is required to adopt the same
regulations through the identical—in-substance rulemaking
procedure.
(415 ILCS 5/7.2
(1992).)
The lag of time between the
effective date of the federal rule and the Board’s adoption of
the rules is due to unavoidable rulemaking and procedural
hurdles.
But for those inherent delays, Burlington would have
not needed to request a this variance or the provisional variance
which was earlier denied by the Agency.
In addition,
the Board
will not fault Burlington
for the delay
in filing the petition
for variance when it was involved
in communications with the
Agency and in the process of obtaining similar relief through
different means.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
CONCLUSION
The Board grants Burlington
a variance from 35 Ill. Adm.
721.104(f) (3) and
(f) (4).
The Board finds that Burlington
has presented adequate proof that immediate compliance with 35
Ill. Adm.
Code 721.104(f) (3)
and
(f)(4) will impose an
unreasonable or arbitrary hardship on Burlington.
The Board
finds that the granting of the variance will not result in an
adverse impact on the environment.
Finally, the Board notes that the conclusions it reaches
based upon the record of this variance proceeding do not
9
necessarily reflect on the merits of Burlington’s rulemaking
proposal,
currently pending before the Board in R94—l8.
The
burdens of proof and the standards of review in a rulemaking
(a
quasi—legislative action)
and a variance proceeding
(a quasi—
judicial action)
are distinctly different.
(~
Titles VII and IX
of the Act;
see also Willowbrook Development v. Pollution Control
Board
(2d Dist.
1981),
92
Ill.
App.
3d 1074,
416 N.E.2d 385.)
The Board cannot lawfully prejudge the outcome of a pending
regulatory proposal
in considering a petition for variance.
(City
of Casey
v.
IEPA (May 14,
1981),
PCB 81—16,
41 PCB 427, 428.)
ORDER
Petitioner,
Burlington Environmental Inc.,
is granted a
variance from 35 Ill. Adm.
Code 721.104(f) (3)
and 721.104(f) (4)
with respect to its facility located in Columbia,
Illinois
subject to the following conditions:
1.
This variance begins on June
27, 1994 and terminates on
the effective date of the adopted amendments
in R94—l7,
currently pending before the Board
or December 31,
1995, whichever shall occur first.
2.
During the period of the variance the following
limitations are applicable:
a)
No more than
a total of 10,000 kg of “as received”
media contaminated with non—acute hazardous
waste,
2500 kg of media contaminated with acute
hazardous
waste or 250 kg of other “as received”
hazardous
waste
is subject to initiation of treatment in
all
treatability studies
in any single day.
“As
received” waste refers to the waste as
received in
the shipment form the generator or sample
collector.
b)
The quantity of “as received” hazardous waste as
stored at the facility for the purpose of
evaluation
in treatability studies does not exceed
10,000 kg, the total of which can include 10,000
kg of media contaminated with non—acute
hazardous
waste,
2500 kg of media contaminated with acute
hazardous waste,
1000 kg of non—acute
hazardous
wastes other than contaminated media and
1 kg of
acute hazardous waste.
This quantity limitation
does not include treatment materials
(including
nonhazardous waste)
added to “as received”
hazardous waste.
Within forty-five days of the date of this order, petitioner
shall execute and forward to:
10
Illinois Environmental Protection Agency
Division of Legal Counsel
2200 Churchill Road,
P.O. Box 19276
Springfield,
Illinois 62794—9276
Attn:
Mr. John Kim
a Certificate of Acceptance and agreement to be bound to all
terms and conditions of the granted variance.
The 45-day period
shall be held in abeyance during any period that this matter is
appealed.
Failure to execute and forward the certificate
within
45—days renders this variance void and of no force and effect as
a shield against enforcement of rules from which this variance is
granted.
The form of the certificate
is as follows.
I
(We),
hereby accept and agree to be bound by all terms and
conditions
of the order of the Pollution Control Board in PCB 94-177,
October 20,
1994.
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 of the date of service of this order.
The Rules
of
(See also 35
Ill.
Adm.
Code 101.246, Motion for
Reconsideration)
the Supreme Court of Illinois establish filing
requirements.
I,
Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby
certif
that the above opiniofl aji~orderwas
adopted
on
the
~
day
of
_________________________
1994,
by
a
vote
of
.5~O
.
Dorothy N.
G91-~h, Clerk
Illinois Po1L~tionControl Board
