ILLINOIS

POLLUTION

CONTROL

BOARD

December

16,

1982

TROJAN CORPORATION (WOLF LAKE),

)

Petitioner,

v.

)

PCB 82—23

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

ORDER OF THE

BOARD

(by D. Anderson):

On November 23,

1982 the Illinois Environmental Protection

Agency

(Agency)

filed a motion for reconsideration of the Order

and Opinion of the Board, adopted October 5 and 14,. 1982, which

granted Trojan Corporation

(Trojan)

a variance to allow open

burning of explosive and explosive contaminated waste at Trojan’s

Wolf Lake facility.

On December

2,

1982 Trojan filed a response

to the motion.

The Board will grant the motion and modify the Opinion as

discussed below.

The Agency has requested a specific ruling on two issues

which underlie the finding of necessity for a variance from

35 Ill. Adm. Code 725.482:

the size of the RCRA facility and

whether buildings can be considered RCRA hazardous waste.

Section 720.110 defines “facility”

as all contiguous land

and structures.

There is no express requirement that all land

be owned in fee simple absolute.

Leases of business property

are common and the Board will not adopt a construction which

would prohibit inclusion of leaseholds

in RCRA facilities.

The buildings became “waste”

at the time they were abandoned

(Section 721.102).

They are “hazardous” because they meet the

characteristic of ignitability in that they are capable of

causing fire through friction or spontaneous chemical changes

(Section 721.121).

The hazardous nature of the buildings can also be deduced

from the anti—dilution rule:

that a mixture of a hazardous and

non—hazardous waste is hazardous.

The explosives are obviously

hazardous.

When the explosives are mixed with the buildings in

such a way that they cannot be separated, while the explosives

retain their hazardous nature, the mixture becomes hazardous.

50-125

---

If the buildings were successfully dismantled and

trucked

to any landfill, therewould be a danger of hot loads,

fires

or

explosions during compaction and spontaneous ignition of under-

ground fires in the completed landfill in years

to come.

The

manifest system would be needed at a minimum to alert the

operator to these problems.

The Agency takes the position that the Board cannot

grant

variances from the RCRA regulations.

The Agency quotes

Sections 3006 and 3009 of the RCRA Act

(42 USC 6926 and

6929)

and Section 35 of the Environmental Protection Act (Act).

Sections 3006 and 3009 of the RCRA Act, and Section

22.4

of the

Act, refer to adoption of a program by the Board, and

its

approval by USEPA.

“Equivalence” and “identical

in sub-

stanc&’ relate to the program as

a whole and are considered

at the

time of adoption and approval.

They lose their

meaning

when

applied to individual cases after the program has been

adopted and approved.

The variance mechanism derives from the Act as

implemented

by 35

Ill. Adm, Code 104.

Unless specifically excluded,

it

applies

to all Board rules, and as such, was a part of the

RCRA

application and approval.

Any regulatory system needs a safety valve to resolve

situations which do not fit into the scheme correctly.

In

Illinois’ two agency system, the Agency is not able to issue

any permit which departs

from the letter of Board regulations.

The

variance mechanism is essential to this system.

The Trojan case

is an example of what would happen if the

RCRA rules were adopted without a variance mechanism:

Section

725.482

would absolutely prohibit the burning of existing

explosive

contaminated buildings or piles of unstable

explosive

waste located too close to the property line.

These would

have to

remain for future generations to worry about

in any

facility closure.

This is diametrically opposite to the

intent

of

RCRA.

The Agency contends that the introductory paragraph

of

Section

35 of the Act absolutely prohibits variances from

the

RCRA

rules.

However, this paragraph also references the

Clean

Water

Act and the Safe Drinking Water Act,

Variances

from 35

Ill.

Adm. Code Subtitles C and F are commonly granted

in spite

of this language.

The Agency apparently takes the position that this

facility

is

not subject to the RCRA rules at all and that no variance

is

necessary.

The Board is not prepared to carve such an

exception

in this, the first case to come before it under the RCRA

rules.

50-126

---

*

3—

This facility is clearly engaged in the storage and disposal of

hazardous waste.

It has the potential to cause serious future

problems if it were abandoned without proper closure which will

be required under the

RCRA

program.

It should he noted that the RCRA rules became effective

after the filing of the petition in this matter.

The Board

felt obliged to address the RCRA issues fully even though they

were not raised by the variance petition.

It would have worked

an unfair hardship to have required an amended petition to deal

with new regulations effective in the midst of a case with a

decision date.

By way of contrast, the air quality standards were in

place long before the petition was filed.

Rather than request

a variance from them, Trojan contended that it would not cause

violation of the air quality standards.

Trojan did not amend

its variance request after the Agency contested its assertion

of compliance.

This apparently resulted from a conscious

decision by Trojan that it would rather have its variance from

Rule 505 now, and take its changes with enforcement should it,

in fact,

cause violation of air quality

standards,

rather than

wait for

the

additional

SIP

revision

which

would

be

required

if

a

variance

were

granted from

the

air

quality

standards.

The Agency has

also

contended

that

the

Board’s

doubts

about

the practicality of partial burns in place in the ponds

is not supported by the record in light of the previous use

at Marion.

The Board notes that this burning was conducted in

violation of the conditions of the variance

in

PCB 79-150,

35 PCB 331,415, September

6 and

20, 1979.

This explosive was

to have been removed from the ponds,

allowed to dry and burned

on straw beds.

As noted in the Opinion,

the Board has doubts about the

safety and environmental desirability of partial burns in place

in the ponds.

Evidence

is weak both in support of and against

this variance condition.

The Board declines to order Trojan

to do something which it suspects may be a more dangerous and

less environmentally desirable alternative.

The Board’s Order

allows Trojan to conduct the burning as planned, and allows

enforcement for any violation of air quality standards which

may occur whether partial burnings are undertaken or not.

The Board acknowledges the error on page

6 of the Opinion

and will delete the reference to the 85 pounds of CO per ton

and the ten-fold reduction in emissions from prescription

burning.

however,

the 8.3 pound figure is

correct and the

environmental impact of putting these amounts of CO and TSP

over an uninhabited area is minimal compared with the advantages

from cleaning up a hazardous waste site.

50-127

---

—4—

The Board will hereby allow the Agency to file its motion

after the

time

specified.

The motion for reconsideration is granted;

the

Opinion is

modified as noted.

IT IS SO

ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control

Board,

hereby~-pertify

that

the

above

Order

was

adopted

on

the

((~

day

~

~

~.

~,

1982 by a vote of

_______

Christan

L.

Moffe~•4~erk

Illinois

Pol1utioh~Control

Board