ILLINOIS POLLUTION CONTROL
    BOARD
    November
    5,
    1981
    TECHNICAL SERVICE COMPANY,
    )
    INC.,
    a Corporation,
    Petitioner,
    v.
    )
    PCB 81—105
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    Respondent.
    MR.
    THOMAS J.
    IMMEL, BURDITT AND IMMEL, APPEARED ON BEHALF
    OF THE PETITIONER;
    MR. WILLIAM E. BLAKNEY, ASSISTANT ATTORNEY GENERAL, APPEARED
    ON BEHALF OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by J.D. Dumelle):
    This matter comes before the Board on a June 22,
    1981
    petition for appeal by Technical Service Company,
    Inc.
    (Technical
    Services)
    to reverse the decision of the Illinois Environmental
    Protection Agency
    (Agency) announced on June
    9,
    1981 denying
    Technical Services’ developmental permit
    for a non—hazardous
    solid waste management facility located in Henry County, Illinois.
    The permit application had been submitted to the Agency on
    March 11,
    1981.
    Hearings were held on August 25, August 26,
    September
    23 and September 29,
    1981 in Atkinson, Illinois.
    Members of the public were present and did testify.
    Technical Services has applied for this permit to accept
    generally aqueous wastes
    (possibly sulfur dioxide
    (sic) and
    dissolved oils) which would be brought into the facility by
    truck
    (R.
    39—42).
    As originally proposed the project included
    the recycling of oil after separation of oil and water
    in Pond
    Number One; two additional ponds
    for temporary storage of waste
    water;
    a land treatment basin to evaporate water; disposal
    trenches to receive soil and residual solids;
    and
    a sludge drying
    bed to receive thick aqueous sludges.
    The subject property is
    located in an area which was strip mined approximately forty
    years ago
    (R.
    57).
    Pond Number One has been developed and presently contains
    several hundred thousand gallons of liquid including poly—
    chlorinated biphenyl contaminated oil.
    That pond is the subject
    of litigation
    in the Henry County Circuit Court
    (R.
    44—46)
    and
    has been specifically excluded from the permit application which
    is under consideration here
    (R.
    43).
    44—41

    —2—
    In its petition for permit review, Technical Services
    alleges that the Agency’s denial dated June
    9,
    1981 is either
    void or defective for the following reasons:
    1.
    It was issued a day beyond the time limit
    for Agency
    action;
    2.
    It alleges purported violations of the Environmental
    Protection Act,
    which are not even alleged
    to have
    occurred on the property which is the subject matter
    of the March
    11th application;
    3.
    It contains serious misstatements of fact and indeed
    contains several statements which are false and
    were known to be false at the time they were made;
    4.
    It was issued without affording the Petitioner
    an
    opportunity to answer, contest,
    or rebut the allegations
    contained in the letter which formed the basis for
    the denial,
    in violation of both State and Federal
    law; and
    S.
    The denial is further based
    on technical reasons
    which are fully rebutted by technical information
    supplied to the Agency during the permitting process.
    First,
    the Board finds that the permit did not issue by
    operation of
    law due to expiration of the time limit for Agency
    action prior to Agency denial.
    It is true that Section 39(a)
    of
    the Environmental Protection Act
    (Act) allows the applicant to
    “deem the permit issued”
    if the Agency
    fails
    to take final action
    “within 90 days after the filing of the application.”
    However,
    Procedural Rule 105(a)
    states that “any period of time prescribed
    by these rules or the Act shall begin with the first business
    day following the day on which the act... occurs.”
    Since the
    application was submitted to the Agency on March 11,
    1981,
    final
    Agency action was not required until June 10,
    1981.
    Since the
    Agency’s denial letter was issued on June
    9,
    1981,
    it was timely
    and the permit did not issue by operation of
    law.
    Second,
    in
    a permit appeal review, the issues are defined by
    the Agency’s denial
    letter.
    The burden of proof
    is placed upon
    the applicant to demonstrate that the reasons for denial detailed
    by the Agency are inadequate to support a finding that permit
    issuance will cause
    a violation of the Act or Board rules.
    Thus,
    Technical Services’ allegations
    are best considered in the context
    of the denial letter, which cites fourteen possible violations of
    the Act in consecutively numbered paragraphs.
    Paragraphs
    1 through 7 of the denial letter center on
    activities occurring at Pond Number One.
    The Agency contends that
    the site is in violation of Sections 12(a) and
    (d), and 21(a),
    (d)
    and
    (f)
    of the Act and Rules
    210,
    302(A) and 501(D)
    of Chapter
    7:
    44—4
    2

    —3—
    Solid Waste,
    in that special and hazardous wastes have been placed
    in the pond threatening to cause water pollution,
    that these
    activities were carried out without proper permits or manifests
    and without paying the necessary fee,
    Technical Services, on the
    other hand,
    contends that the substances deposited in that pond
    are not wastes at all,
    and, therefore,
    that it
    was not required
    to comply with any of these provisions.
    This contention is based
    upon their intent to recycle the material which was purchased for
    $26,000 from Alcoa Aluminum
    (R.
    43—45).
    Mr. Rapps, an engineer
    working for Technical Services, testified that
    it was acquired
    for the sole purpose of resale and
    that
    had not litigation ensued
    in circuit court,
    it would have been sold by the time of hearing
    (R.
    46).
    Technical Services argues further
    that Pond
    Number One
    cannot be the basis
    of permit denial
    in that it has been
    specifically excluded from the permit application.
    The Agency certainly has the authority to consider the
    general
    area of the site in determining whether a
    permit
    shall
    be
    issued.
    However,
    the violations alleged
    in paragraphs
    1 through
    7 are only material to this case insofar as they relate to the
    prospective operator’s prior experience in waste management
    operations.
    There is no allegation that Pond Number One will
    in
    and of itself contribute to violations at the
    applied
    for site.
    Further, these allegations,
    coupled with those allegations
    in paragraph
    9 are insufficient to warrant
    permit
    denial based
    upon the operator’s prior experience,
    None of these allegations
    have resulted
    in a finding of wrongdoing
    on the part of Technical
    Services.
    They all center on proceedings
    in ~~le
    v.
    Technical
    Services Company,
    Inc.,
    81—CH-8,
    which is still pending.
    Further,
    Technical Services’ argument that the material
    in Pond Number One
    is not a waste
    is at least arguably supported by the Appellate
    Court decision in IEPA v.
    IPCB and
    Safe~y-KleenCo~2..,
    No.
    80-650,
    PCB
    80—12,
    37 PCB
    363,
    Therefore,
    the Board finds that paragraphs
    1 through
    7 and
    9 are insufficient to support Agency denial
    of the
    permit.
    For this reason the Board need not decide whether state
    or federal law required a hearing on these issues prior to Agency
    denial of its permit.
    The Board also will not
    consider paragraphs
    8
    and 12 as
    a
    proper basis
    for denial
    in that the Agency and Technical Services
    filed a stipulation on October
    9,
    1981 that
    these paragraphs are
    no
    longer in issue and
    are withdrawn as a basis
    for denying
    the
    permit.
    Therefore, only paragraphs 10,
    11,
    13, and 14 remain for
    consideration.
    These allegations are as follows:
    10,
    The applicant has not submitted adequate proof
    that operation of the solid waste management site will not
    cause a violation of the Environmental Protection Act or
    Rules
    (Rule 207, Chapter
    7)
    and prevent the pollution of
    land or groundwater
    in that at least te~feet of clay, having
    a permeability not greater than
    1 x 10
    cm/sec. has not been
    44—43

    —4—
    shown to exist in the bottom and sidewalls of waste
    impoundments and disposal areas.
    The applicant has stated
    an assumed permeability in the approximately forty—five acre
    area that is comprised of mixed surface mining
    spoil based
    on two permeability tests performed of samples containing
    shale,
    but not identified as
    to depth that were later
    compacted prior to testing, and on permeability tests
    performed on other parcels
    of
    land in the area.
    The Agency
    cannot conclude that such assumptions are valid.
    Permeability tests performed on samples from the areas and
    depth of the impoundments and disposal trenches would more
    closely describe existing permeabilities in those areas.
    The provision of clay
    liners recompacted to measured
    densities and moisture content could also result in
    demonstration of the required degree of imperviousness.
    No
    such liners were specified.
    11.
    The preliminary hydrogeologic evaluation of the
    Illinois State Geological Survey indicates widespread
    deposits of water
    laid sand and gravel in the Henry
    Formation and that sand deposits have been mapped
    immediately north of the site.
    We cannot conclude that
    permeable lenses do not extend into this area that has been
    strip mined and is proposed for waste storage and disposal.
    Data that describes the geological
    sequences from
    undisturbed areas in or around the proposed site were not
    included with the data submitted.
    13.
    A correlation between the groundwater
    level
    information submitted by Technical Services and the depth of
    the impoundments and trenches as shown on the site plans
    indicate that if the ponds and trenches are excavated as
    shown on the site plans,
    the bottom of the impoundments
    and trenches, including at least storage pond #1, would be
    below the groundwater.
    14.
    The monitoring well design does not conform to
    Agency procedures in that well screens are set into the
    shale that underlies the spoil and not at the level of the
    existing water table.
    Screens set from the existing water
    table to the depth of the shale could probably have
    a better
    chance of collecting soluble or liquid wastes that might
    migrate out of storage impoundments or disposal areas.
    The Board rejects paragraph 14 as
    a sufficient basis for
    permit denial.
    Technical Services has indicated its willingness
    to place or moqify any wells
    in conformity with whatever the
    Agency may require by way of permit conditions
    (R.
    137), thereby
    safisfying monitoring concerns.
    The Board also rejects paragraph 11 as a sufficient basis
    for permit denial.
    While the Illinois State Geological~Survey
    suggested that there had been some sand deposits mapped north o~
    44—44

    —5—
    the site, it also found that there do not appear to be any such
    deposits beneath the site
    (R,116 and 366),
    Technical Services’
    borings confirm that and “appear
    to
    be almost void of sand grains”
    (R.
    116).
    Since Technical Services’
    facility
    lies within a strip
    mined area,
    it seems unlikely that sand formations would exist
    within the spoil material which composes the site and which
    extends substantially north of the site
    (R,
    117—120).
    The Board also rejects paragraph 13 as a sufficient basis
    for permit denial.
    Once again, shortcomings in construction or
    operation of Pond Number
    One
    cannot be used in this case as a
    basis for denial
    of a permit at another
    site,
    Further, the
    placement of impoundments and trenches below the groundwater
    table does not in and of itself pose a threat
    to the environment.
    If the liners of the impoundments and trenches are sufficiently
    impermeable, environmental problems can be avoided.
    However,
    if
    they are not,
    any
    such problems are magnified by placement beneath
    the groundwater table.
    Therefore, while this reason for denial
    is insufficient standing alone,
    it may well add to the sufficiency
    of paragraph
    10.
    Thus,
    this entire proceeding hinges upon whether Technical
    Services has made
    an adequate showing that the mine spoil
    material which composes the
    site
    is of such permeability that the
    environment will be adequately protected.
    This is due to the fact
    that in the original application no liners were proposed
    ifor the
    storage ponds and disposal
    trenches, which are formed simply by
    excavating the spoil
    material
    and compacting
    the
    surface to 95
    of Standard Proctor
    (Pet.
    Ex.
    5,
    pp.
    80—82).
    However,
    it appears
    that even this compaction
    will be unnecessary
    in that the
    in situ
    density averages about
    95.5
    of Standard Proctor with
    a lowest
    reported field density
    of
    91.7
    of Standard
    Proctor
    (Pet,
    Ex.
    14).
    Technical Services
    hired Whitney and
    Associates
    to perform
    permeability tests on
    the mine spoil material
    (R.
    47~48);
    TWO
    samples were ~alyzed
    with reported results of
    2.1 x 10~°cm/sec.
    and 5.6 x
    10
    cm/sec.
    (Pet,
    Ex.
    5,
    p.
    44 and R.
    53—54)
    at
    Standard Proctor
    (R.
    61),
    Since
    the
    in situ compaction is
    less
    than St~ndardProctor,
    Mr. Rapps assumed
    a maximum permeability
    of 10.
    cm/sec.
    (Pet,
    Ex.
    5,
    p.
    47 and R.
    (Sept.
    29)
    p.
    168).
    Dr.
    Piskin,
    an
    Agency engineer,
    disagreed with
    that
    assumption
    (R.
    337—339).
    He
    felt, based upon his
    experienceS that
    the6perrneahility of
    mine spoil material would
    he
    between 10
    and
    10
    cm/sec.
    (R,
    362),
    He
    also
    testified that the ~poil material
    is basically saturated silt which
    will
    not have
    10
    cm/sec.
    permeability
    (R.
    379).
    —7
    Without deciding whether permeability
    of
    less than 10
    cm/sec.
    is required,
    the Board nevertheless upholds the Agency’s
    denial
    of the permit on Lhe basis that Technical Services has
    *
    Since the September
    29 transcript
    is numbered rather than
    following from earlier transcripts R(Sept.
    29) will be used
    to designate it,
    44—45

    —6—
    not made an adequate showing that the permeability of the in situ
    material
    is such that the environment will be adequately protected
    by its use as
    a liner material.
    The Agency correctly noted that
    only two
    permeability
    tests were run
    on
    samples which were taken
    from indefinite depths and which were compacted beyond their in
    situ levels
    (see
    Pet,
    Ex,
    5,
    Part
    IV).
    Technical Services does present testimony and exhibits in an
    attempt to overcome these shortcomings, but even this additional
    information falls
    short of the necessary
    showing.
    For example,
    grain size
    analyses
    are presented for twelve samples
    (Pet.
    Ex.
    5,
    Part
    3,
    pp.
    31—42) which show reasonable
    uniformity
    of composition.
    However, grain size is but
    one factor which determines
    permeability.
    Similarly,
    Technical Services has
    provided
    a soil composition
    analysis of 56.4
    silt,
    35.2
    clay
    and 8,4
    sand
    (using A.S.T.M.
    standards) and
    has compared that to other
    sites ~ith sim~lar
    compositions which exhibit permeabilities
    of
    10
    to 10—
    cm/sec.
    (Pet.
    Ex.
    11).
    However,
    these classifications
    are
    solely dependent
    upon grain size and,
    therefore, have no greater reliability than
    that the grain size analyses.
    Finally, John Taylor, an employee
    of Mr.
    Rapps, has indicated that the permeability of
    samples
    tested is representative of soils found
    over
    the entire site,
    but this assertion is
    largely unsupported
    (Pet.
    Ex,
    5,
    Part 4),
    Technical Services has7failed to demonstrate that the assumed
    maximum permeability of
    10
    cm/sec.
    is in fact the maximum perme-
    ability which exists at the bottom and sides of
    the
    ponds and
    trenches.
    The
    two samples were tested
    at a compaction which was
    not the same as in situ conditions,
    and
    Technical
    Services has not
    demonstrated that the assumed
    maximum
    necessarily follows from the
    test results.
    Further, even
    if such a
    showing
    had
    been made,
    Technical Services
    still
    would not have met its burden of proof
    in
    that it failed to demonstrate
    that
    those two samples were in fact
    representative of the
    site as a whole,
    or even
    of
    the
    areas imme-
    diately surrounding
    and under the ponds and trenches
    involved here.
    For those reasons the Agency~sdenial of Technical Services’
    permit is upheld.
    Of course, Technical Services may reapply for
    a permit upon remedying these deficiencies,
    This
    Opinion
    constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The
    Board hereby affirms the Illinois
    Environmental
    Protection
    Agency’s
    June 9,
    1981 permit
    denial
    in
    this matter.
    IT
    IS
    SO
    ORDERED.
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify that the
    ab9ve
    Opinion and Order
    was adop~don the ~
    day of
    ~
    1981 by a
    vote of
    ~.S-L’.
    44—46
    Illinois Polluti
    ~ntrol
    Board

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