ILLINOIS POLLUTION CONTROL BOARD
June
12,
1980
ENVIRONMENTAL
SITE
DEVELOPERS,
INC.,
Petitioner,
v.
)
PCB 80—15
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
JOSEPH MADDOX,
ATTORNEY AT LAW,
APPEARED
ON BEHALF OF THE
PETITIONER.
WILLIAM
SELTZER
AND
JOHN
WILLIAMS,
ATTORNEYS
AT
LAW,
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION AND
ORDER OF THE BOARD
(by D.
Satchell):
This matter comes before the Board upon a petition appealing
the denial of a solid waste disposal site development permit,
filed January 18, 1980 by Environmental Site Developers,
Inc.
(ESD).
The letter of denial cited violations of Rules
313 and 315
of Chapter
7:
Solid Waste Rules and Regulations which concern
water pollution by landfills.
The Board has received several
written comments from the public.
Hearings were held in Spring-
field on April 24,
30 and May 6,
1980.
Members of the public
attended and commented.
Since the hearings some members of the
public have withdrawn their objections.
The site in question is situated near Lake Springfield at the
southeast corner of Springfield,
Sangamon County.
East Lake Drive
runs generally east-west across Spaulding Dam at the northeast end
of the
lake.
The City of Springfield
(City)
operates the V.
Y.
Dailman III coal-fired electric power unit
south of East Lake
Drive on the east side of the lake.
There is
a waterworks located
adjacent to the power plant.
Slurried fly ash and water treatment
sludge are pumped under East Lake Drive,
across to the east of the
spiliway and Sugar Creek.
ESD has
an option to purchase a thirty-
two acre tract to the north of the ash ponds and states the site
will be about thirty—nine
acres.
It proposes to construct a series
of berms
to accept
a calcium sulfate/sulfite sludge
from
the
scrubber unit being installed in the power plant.
An
alternative site for the disposal of the sludge
is Burk—
ett’s landfill which is somewhat farther away
(R.
482;
Resp.
Ex.
2).
The Agency has issued
a supplemental permit for the landfill
to accept this sludge.
Over its expected twenty year life
a large
amount of fuel will be saved by utilization of the ESD site which
is very close to the power plant.
The alternative
site would
—2—
involve more movement of heavy trucks on city streets.
In
addition there
is
a possibility of selling the gypsum sludge for
manufacture of wallboard or plaster of oaris.
If it is mixed
with other refuse it will lose its potential value
(R.
186)
Section 39(a)
of the Environmental Protection Act
(Act) re-
quires that
in denying a permit the Agency transmit to the appli-
cant a detailed statement of the reasons the permit was denied.
The letter must identify regulations which may be violated if the
permit were granted, the specific type of information,
if any,
which the Agency deems the applicant did not provide
it and
a
statement of specific reasons why the Act and regulations might
not be met if the permit were granted.
On December 12,
1979
the Agency issued a letter of denial
which stated as follows:
The pollution potential to waters of the State of Illinois,
from your proposed disposal of flue gas desulfurization
sludges within the Based Flood* plain of Sugar Creek,
is
unacceptable.
Rules
313,
315, Part
III, Chapter
7,
Solid
Waste,
Illinois Pollution Control Board Rules and Regu-
lations, adopted July
27,
1973.
Based upon the above,
Litis
Aqency
must
deny
tile i~erniitrequest.
*“j3ased Flood” means
a flood that has a one percent or
greater c~ianceof recurring
in any year or a flood of
a magnitude equalled or exceeded once
in 100 years,
on
the average, over a significantly long period.
Considerable evidence was received concerning noise, dust
and the possibility of mine subsidence under the proposed site.
These problems are beyond the scope
of the denial letter and will
not be further considered by the Board.
There is
also testimony
concerning fencing, cover and the intended practice of dumping
from the berms rather than filling from the toe.
These are not
cited in the denial letter and also relate to the operating
as
opposed to the development permit.
The Agency indicated that the basis of its concern was that
the facility was to be located in a flood plain
(R.
88).
At the
hearing the Agency admitted that its objections were limited to
its concern that flood waters would scour or damage the berms
so
as
to allow leachate to migrate from the site and to the charact-
erization of the sludge
as inert
(R.
91,
96).
Petitioner seems
to agree that it was adequately informed that this was the basis
of the denial
(R.
144).
The Agency was satisfied that the pro-
—4—
not
have
the
odor
problems
and
oxygen
demand
of the sulfide/sul-
fite sludge and has a crystalline structurn which is mom
favor-
able to dewatering
(R.
177). Whereas the older sludges were 30
water and had
a consistency like toothpaste,
the proposed unit
will produce
a moist powder with 10-20
water
(R.
177;
Pet.
Ex.
2).
IL will contain about 0.08
fly ash which could contain up
to 150 ppm lead and other
trace elements
(R.
206). The saturated
leachate would contain about
2500 ppm of soluble calcium salts.
The only problems would be those associated with hardness or total
dissolved solids
(R.
182).
ESD proposes to install in each bermed
area drains which will route any leachate to a pond for treatment
if necessary. The Agency has issued to another operation a supple-
mental permit for this same sludge
(Pet.
Ex.
7).
The Board has long held that the issue on appeal of a permit
denial
is whether the Agency erred and not whether new material
which was not before the Agency persuades the Board that a permit
should be granted.
(Soil Enrichment Materials v. EPA, P03 72-264,
5 PCB
715
(1972)1
“The Agency errs
in denying a permit only when
the material,
as submitted to the Agency by the applicant, proves
to the Board that no violation of the Act or regulations will
occur if the permit is granted,”
Oscar
Mayer and Company v. EPA,
PCB 78—14,
30 P03 397,
399
(1978)
In its application ESD stated that the material was “inert.”
“In a hearing on a Section 40 petition, the applicant must verify
the facts of his application
as submitted to the Agency,
and,
having done
so, must persuade the Board that the activity will
comply with the Act and regulations.”
(Oscar Mayer and Company
v.
EPA, op. cit.,
398)
The evidence presented at the hearing has
persuaded the Board that the material is indeed inert in the sense
that its disposal as ESD proposes should pose little environmental
hazard. The decision of the Agency is reversed.
This case could have been handled more easily had the Agency
fully complied with the requirements of Section 39(a)
of the Act
in issuing a denial letter and had ESD responded with a supple-
mental application.
This Opinion constitutes the Board’s findings of fact and
conclusions
of law in this matter.
Mr. Werner concurred.
—3—
posed berms were high enough that they would not be overtopped
by expected flooding
CR.
93).
The Agency was satisfied that the
soil at the site was suitable
(R.
92,
470).
Sugar Creek usually floods at least once a year between
spaulding Dam and the Sanqamon River east of Springfield
(R.
17,
535).
The source of this flooding is water which backs up from
the Sangamon and water from the lake
wht~.’n the spillway gates are
opened
(B.
480,
535).
The City operates ash ponds adjacent to
tile spillway
(R.
532;
Resp.
Ex.
1).
At one time the City had
difficulty witn berm erosion, but this was resolved by placing
riprap alongside the channel from the spillway.
There has been
no difficulty resulting from erosion on the side away from the
spillway
(R.
534,
536,
539).
ESD’s berms will be beyond the
existing ash ponds, away from the spillway and will be protected
with riprap
(R.
107,
149).
Some of the citizen witnesses contended that construction
of
a berm around thirty—nine acres in a flood plain would tend to
raise the flood level
(R.
21,
330,
364).
Although this could have
water pollution potential,
it was not specified in the denial
letter.
The permit application described the sludge as
“inert”
(B.
96,
AcJeLlCy
Record).
Mr~Cavanauqh,
Lhe Agency’s land permit: section
lualiager,
testified
LiiaL
flue
gas
desulfurization
sludges
(FGD)
in
his
experience
were
not
inert
CR.
90,
96,
440).
lIe
testified
that
ae
consulted
the
“Flue
Gas Desulphurization Sludge Disposal Manual”
(R.
442;
Resp.
Ex.
11).
The
Petitioner
seems
to
agree
that
this
is a reliable source on this topic
(R.
183).
The manual indicated
that FGD sludges produce leachates far in excess of drinking water
standards so that under proposed federal regulations it would be
classified as a hazardous waste
(B.
442).
The sludge involved in
the permit application appeared to be similar to that in the
manual
(R.
453,
472,
515).
However,
the FGD sludge most closely
identified with the sludge involved here was blended with fly ash
(R.
435).
Apparently results from comparable sludge were not
available.
The new scrubber represents a technological advance over the
scrubbers described in the manual.
The Dallman plant will have
an electrostatic precipitator to remove around 99.5
of the fly
ash ahead of the two loop scrubbing operation
(B.
204).
The
scrubber employs limestone rather than lime and operates at a
low pH in the first loop
(B.
175).
Under these conditions calcium
sulfide and sulfite are oxidized to the sulfate.
The resulting
product is
in excess of 90
calcium sulfate
as gypsum.
This does
—s--
ORDER
The case is remanded to the Agency for issuance of a
development permit.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
were~adopted on the
j~M
day of~
,
1980 by a vote
(~4~
~
~hristan
L. Mof
t
Clerk
Illinois Pollution Control Board
