ILLINOIS POLLUTION CONTROL BOARD

August 24,

1995

IN THE

MATTER

OF:

)

)

PETITION OF LONE STAR

)

AS 94-15

INDUSTRIES,

INC. FOR

)

(Adjusted Standard-Water)

ADJUSTED STANDARD FROM

)

35 ILL. ADM.

CODE 811.320(d)

(Establishment

of Groundwater

)

Background Concentrations)

)

SAMUEL T. LAWTON, JR.,

of ALTHEIMER

& GRAY, APPEARED ON BEHALF OF

PETITIONER; and,

JOHN J. KIM APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD

(by J. Theodore Meyer):

This matter is before the Board on a petition for an

adjusted standard from the requirements of

35

Ill. Adm.

Code

Subtitle G,

Section 811.320(d)

filed October 4,

1994

by

petitioner,

Lone Star Industries,

Inc.

(LSI).

The Illinois

Environmental Protection Agency

(Agency) filed its Response to

Petition for Adjusted Standard on January

9,

1995 and LSI

submitted its Reply on March

3,

1995.

Hearing was held on April

21, 1995 in Ottawa,

Illinois in which several members of the

public were in attendance1.

Two comments were received during

the post—hearing comment period.

The record

in this matter was

completed on May 19,

1995.

RELIEF REQUESTED

LSI

is seeking an adjusted standard from the background

concentration requirement of groundwater quality standards

pursuant to 35

Iii. Adm.

Code 811.320(d).

(Pet.

at

1.)2

LSI

requests that groundwater standards of Part 620 be applied

instead.

(Tr.

at 131-132.)

The Agency recommends a denial of

1Section

32

of the Act allows citizens of the public to offer comment at

Board hearings.

Pursuant

to Board procedure,

the hearing officer in this case

asked

if anyone from the public wanted to make any statements.

Robert

J.

Riboizi offered public comment on behalf of Area Citizens Representing

Environmental Safety

(A.C.R.E.S.).

2Petitioner’s petition shall be referred

to

as

(Pet.

at

.);

the

Agency’s recommendation shall be referred to

as

(Rec.

at

.); petitioner’s

reply to the Agency’s

recommendation shall be referred

to

as

Reply

at

.);

and,

the hearing transcript shall be referred to as

(Tr.

at ~.)

For

references

to exhibits within an exhibit,

the cite shall

be

(Pet.

at

Exhibit

—

within Exhibit

.)

.

For references

to

the

Incorporated Record,

the cite

shall be

(Inc.

Rec.

at

Exhibit

.).

---

2

the requested adjusted standard, stating that LSI failed to

provide sufficient technical justification to support

its

position as required by

35

Ill.

Adm.

Code 811.320(b) (2).

(Agency

Br. at 2,3,

Tr.

at

133.)

BACKGROUND

LSI operates a portland cement manufacturing plant and

associated quarry in Oglesby, LaSalle County,

Illinois.

(Inc.

Rec.

at Exhibit

D..)

Purchased by LSI

in

1982,

the plant

is over

100 years old, and employs 105 people.

(Id.)

A by—product of the cement manufacturing process

is cement

kiln dust

(CKD),

a portion of which

is disposed in LSI’s quarry.

(u.)

Although 95

of CKD is returned to the cement process,

some 6,000 tons have been deposited in the quarry in one year.

(~~)

The wasted CKD, which is higher in sodium and potassium

alkalis than recycled CKD, consists of material that appears

naturally in areas rich in limestone deposits.

(Tr.

at 17.)

Occupying eight acres on the southeast bank of the Vermilion

River across from LSI’s plant, the quarry was created from the

company’s prior limestone mining operations.

(Tr.

at 21, Exhibit

2.)

It is bounded by a ledge and precipitous embankment leading

to the river on the north,

a steep hill to the south and east,

and an earthen dam to the west.

(Exhibit

1, page 2,3.)

South of

the quarry is a large area of abandoned surface and underground

limestone mines.

(Exhibit 5.)

Prior to its use as

a CKD landfill,

the empty quarry

collected rainwater and eventually became a pond.

(Tr.

at 21.)

When CKD was first stored in the quarry,

the water became

contaminated with alkali, and the resulting leachate seeped into

the Vermilion River.

(Tr. at 21-22.)

In response to new landfill regulations passed in 1990, LSI

began work to bring its landfill into compliance.

(In the Matter

of Development, Operating and Reporting Requirements for Non-

Hazardous Waste Landfills,

R88—7

(August 17,

1990).)

In its May

20,

1993 Order, the Board granted LSI a variance from certain

regulations, and LSI implemented a compliance plan to eliminate

the migration of leachate beyond the landfill boundaries.

(PCB

92-134, Board Order at l2.)~ This was accomplished by covering

the older part of the landfill with shale, draining most of the

collected rainwater from the remaining landfill area,

and using

the collected rainwater as coolant in the cement manufacturing

3Relief was granted, with certain conditions,

from the following

regulations:

35

Ill. Adm. Code 814.302(a);

811.313; 814.302(b)(1);

811.301(b); 811.314; 811.320(d)811.317;

815.202(a);

815.203(b); 812.316;

815.202(a);

815.203(b);

811.110(d);

and, 811.309(c)(4.

---

3

process.

(Tr. at 22.)

A shale barrier was created between the

pond and the landfill to prevent further mixing of CKD and any

rainwater.

(Id.)

Finally,

a tile drainage system was placed on

top of the landfill to allow rainwater to drain into the pond to

be used as coolant as well.

(~~)

The landfill has no engineered liner separating the CKD from

the old quarry floor or walls.

(Tr.

at 28.)

The landfill rests

on approximately eight feet of unmined limestone, two feet of

coal,

and several layers of clay, shale and sandstone.

(Tr. at

23,

39.)

Petitioner believes that this topography creates a

natural,

impermeable liner.

(Tr.

at 23,24.)

In 1992 LSI hired environmental engineers to produce a

hydrogeology report for its landfill area.

(Tr. at 52,53.)

The

report relied upon data from 15 monitoring wells:

four which

were located within LSI’s landfill; four which were along its

boundary; six which were situated between the Vermilion River and

the landfill; and,

one which was off-site.

(Pet. at Exhibit

3

within Exhibit 1.)

The report also included a potentiometric map

which was used to explain that surface water flows radially

outward from the landfill, indicating that the landfill is the

highest point in the area,

so that, hydraulically, groundwater

cannot be upgradient.

(Tr.

at 57,78,

Pet. at Exhibit i.)~ The

report concluded that there

is no groundwater upgradient from the

landfill.

(Pet. at Exhibit 1.)

In addition, the report concluded that no aquifer of concern

existed in the area,

and that, due to the impermeability of the

area’s topography,

it is impossible for water to travel

vertically.

(Tr.

at 57,58.)

The second contention implies that,

even if there was an aquifer within the zone of attenuation, no

leachate could travel vertically to impact the aquifer.

Therefore,

it

is inappropriate to determine background

concentrations of groundwater.

(~~)

ADJUSTED STANDARD JUSTIFICATION

The Board’s responsibility in this matter arises from

Section 28.1 of the Illinois Environmental Protection Act

(Act)

which allows the Board to grant adjusted standards modifying the

‘Petitioner used the term “groundwater” interchangeably with other terms

throughout its filings,

exhibits and at hearing,

creating confusion in the

record.

The Act defines groundwater as

“underground water which occurs within

the fluid pressure in the pore space equal to

or greater than atmospheric

pressure.

(415 ILCS 5/3.64.)

Therefore,

for reasons

of clarity,

this

opinion

uses the term “rainwater” to refer to collected water

in the landfill which

petitioner states

is

the result

of precipitation

(Tr.

at

21);

“surface water”

to refer to non—groundwater that travels from one point to another;

and

“leachate” to

refer to water that has come into direct

contact with solid

waste.

(35

Ill. Adm.

Code 810.103.)

---

4

effect of general rules in specific cases.

(415 ILCS

5/28.1(1992).)

More generally,

the Board’s responsibility in

this matter is based on the system of checks and balances

integral to Illinois environmental governance:

the Board is

charged with the rulemaking and principal adjudicatory functions,

and the Agency

is responsible for carrying out the principal

administrative duties.

The Act provides that a petitioner may request, and the

Board may impose,

an environmental standard that is different

from the standard that would otherwise apply to the petitioner as

the consequence of the operation of a rule of general

applicability.

Such

a standard is called an adjusted standard.

Procedural rules for adjusted standards are found at Section

28.1 of the Act and 35 Ill.

Adm. Code 106, Subpart G.

Where the

Board specifies a

“level of justification” at the time that it

adopts

a rule of general applicability, that level of

justification

is applied to any adjusted standard request filed

pursuant to that rule.

Absent a specified level of

justification, the provisions of Section 28.1(c)

of the Act apply

to a request for adjusted standard.

LSI seeks an adjusted standard from 35

Ill.

Adm. Code

811.320(d).

This section outlines two

levels of justification:

one for groundwater that presently serves,

or in the foreseeable

future will serve, as a source of drinking water; and, one for

groundwater that cannot serve as a source of drinking water.

(35

Ill. Adm. Code 811.320(b).)

The level of justification for

sources of drinking water is addressed specifically

in

35 Ill.

Adm. Code 811.320(b) (2), which states:

For groundwater which contains naturally occurring

constituents which meet the requirements of 35

Ill.

Adm. Code 302.301,

302.304, and 302.305, the Board will

specify adjusted groundwater quality standards no

greater than those of

35 Ill. Adm. Code 302.301,

302.304, and 302.305, upon a demonstration by the

operator that:

(A)

The change

in standards will not interfere

with,

or become injurious

to,

any present or

potential beneficial uses fcr such waters;

(B)

The change

in standards is necessary for

economic or social development, by providing

information including,

but not limited to,

the impacts of the standards on the regional

economy,

social disbenefits,

such as

loss of

jobs or closing of landfills,

and economic

analysis contrasting the health and

environmental benefits with costs likely to

---

5

be

incurred in meeting the standards; and

(C)

all technically feasible and economically

reasonable methods are being used to prevent

the degradation of the groundwater quality.

The level of justification for sources of non—drinking water is

found at 35

111.

Adin.

Code 811.320(b) (4), which states:

For groundwater which contains naturally occurring

constituents which do not meet the standards of

35 Ill.

Adm. Code 302.301,

302.304,

and 302.305, the Board will

specify adjusted groundwater quality standards upon a

demonstration by the operator that:

(A)

The groundwater does not presently serve as

a

source of drinking water;

(B)

The change in standards will not interfere with,

or become injurious to,

any present or potential

beneficial uses for such waters;

(C)

The change in standards

is necessary for economic

or social development, by providing information,

including, but not limited to, the impacts of the

standards on the regional economy,

social

disbenefits such as loss of jobs or closing of

landfills, and economic analysis contrasting the

health and environmental benefits with costs

likely to be incurred in meeting the standards;

and

(D)

The groundwater cannot presently, and will not in

the future,

serve as a source of drinking water

because:

(i)

It is impossible to remove water

in usable

quantities;

(ii) The groundwater

is situated at a depth or

location such that recovery of water for

drinking purposes

is not technologically

feasible or economically reasonable;

(iii)

The groundwater

is so contaminated that it

would be economically or technologically

impractical

to render that water fit for

human consumption;

(iv) The total dissolved solids content of the

groundwater is more than

3,000 mmg/l and that

water will not be used to serve

a public

---

6

water supply system;

or,

(v)

The total dissolved solids content of the

groundwater exceeds 10,000 mg/l.

PROPOSED

STANDARD

LSI requests relief from establishing background

concentrations for groundwater due to the unique geology and

hydrogeology of its landfill, and the history of surface and

underground mining that has disturbed the entire area.

LSI

proposes the following language for the adjusted standard:

“Section 811.320(d)

is inapplicable to the landfill

facility owned and operated by Petitioner,

Lone Star

Industries,

Inc.

at Oglesby,

Illinois”.

(Pet.

at 7.)

LSI further proposes that any monitoring at its landfill be

subject to the standards set forth in 35

Ill. Adm. Code

620.440(c).

~

Reply at 4.)

This section provides:

Section 620.440(c)

Groundwater Quality Standards for Class

IV:

Other Groundwater

c)

For groundwater within a previously mined area,

the standards set forth in Section 620.420 must

not be exceeded, except for concentrations of TDS,

chloride,

iron, manganese,

sulfates, or pH.

For

concentrations of TDS,

chloride,

iron, manganese,

sulfates, or pH, the standards are the existing

concentrations.

(35 Ill. Adm. Code 620.440(c))

AGENCY RESPONSE

First, the Agency believes that the correct level of

justification for this matter is

35 Ill. Adm.

Code 811.320(b) (2),

the level for groundwater that presently serves,

or in the future

will serve,

as

a source of drinking water.

As such, the Agency

contends that LSI failed to adequately address the level of

justification required for this Adjusted Standard, and requests

denial on that basis alone.

(Rec.

at 2.)

Secondly,

in its recommendation and at hearing, the Agency

asserts that LSI has not provided sufficient information to

justify the granting of the requested variance.

(Rec. at 2-3,

Tr.

at 133.)

Specifically, the Agency notes that one

potentioinetric map and data from on—site wells only does not

establish the impossibility of determining background groundwater

concentrations.

(Rec.

at Exhibit

1.)

The Agency further

believes that an aquifer

is present in the area,

as evidenced by

---

7

approximately 16 potable/private wells located in the area

surrounding LSI’s landfill.

(j~)

Therefore,

the Agency

recommends that the request for an adjusted standard from

35 Ill.

Adni. Code 811.320 be denied.

(Rec.

at

5.)

CONCERNED CITIZENS

Roger Riboizi, president of A.C.R.E.S., presented the

group’s concern that,

without constant monitoring,

leachate from

LSI’s landfill will continue to leak into the Vermilion River.

(Tr. at 9.)

Mr. Ribolzi testified that the river is enjoyed by

local residents for fishing and recreational use.

(~.)

A.C.R.E.S. urged LSI to continue prevention measures against the

spread of pollutants from LSI’s landfill.

(Tr. at 10.)

Mr.

Ribolzi requested that LSI continue to monitor its landfill for

the sake of the environment and the citizens of the local

community.

(Tr. at

130.)

DISCUSSION

The major thrust of the Board’s landfill regulations

is

the prevention of groundwater contamination.

To accomplish this,

a facility must establish groundwater quality standards based on

the background concentrations of all monitored chemical

constituents.

(35 Ill.

Adm. Code 811.320.)

Petitioner

is asking

for relief from establishing background concentrations,

stating

that no groundwater exists in the area of its landfill.

For the

reasons set forth below, the Board is not persuaded that LSI met

its burden of proving the non—existence of groundwater

in the

area of its CKD landfill.

Existence of Groundwater or Aquifer of Concern

In examining the record, the Board finds troubling the lack

of reliable data to support LSI’s contention that neither

groundwater nor an aquifer of concern exists.

Regarding

LSI’s

testing for groundwater,

we first notice the failure to provide

testing data from any off-site monitoring wells.

Only one of

LSI’s monitoring wells was located off—site, and no data was ever

provided from this well.

(Exhibit 7,

figure 4-1.)

In

fact,

several wells were either damaged or destroyed,

preventing the

collection of data from them.

(Exhibit 7,

p.5-4.)

LSI did not

prove that it would have been impossible to drill a well in the

unmined areas directly east of LSI’s landfill, within 200 feet of

its service road, thus providing reliable data as to the presence

of groundwater.

(Exhibit 2.)

Secondly, despite LSI’s characterization of the water

collected in its wells as “groundwater”, the Board believes the

data collected from on—site wells only report the characteristics

of either leachate from the landfill or surface water that had

percolated through overburden and into the mines and wells.

The

---

8

monitoring wells that produced data were all located within the

landfill or on its border.

(Pet.

at Exhibit 2D within Exhibit

1.)

This information does not help determine whether or not

actual groundwater or an aquifer exists in the area.

We are also not convinced that petitioner met its burden of

proving that no aquifer of concern exists within the zone of

attenuation.

Numerous shallow and deep wells exist across the

Vermilion River which provide the town of Oglesby with its water

supply.

(Exhibit

1,

p.5.)

These wells tap into the

Pennsylvanian, Ordovician and Cambrian rocks which include

several aquifers.

~

Alluvial aquifers and shallow wells are

present along the Illinois River as well.

(~~)

Evidence was

not provided to show that these aquifers are not hydraulically

connected to geologic material underlying LSI’s landfill.

Assuming arguendo, that LSI did provide persuasive evidence

of a lack of groundwater in the area of its landfill,

LSI would

still need to demonstrate that any leachate from the landfill

cannot mix with other sources of water.

LSI must prove that

previous detections of leachate travelling off-site into the

Vermilion River will not occur

in the future.

Although data from

the monitoring wells indicate a decrease in the amount of

leachate moving from the landfill, and despite LSI’s commendable

efforts to contain

it,

leachate continues to leave the landfill.

(Exhibit

7,

p.

4—4,405.)

In addition, water has been observed

running through the maze of underground tunnels and emptying into

the Vermilion River.

(Tr. at p.65.)

LSI must demonstrate that

this water is surface water which has not mixed with its CKD

landfill, but simply percolated through the overburden into the

tunnels.

Petitioner must also show that this water is not

leachate seeping through the landfill walls.

Finally, although there is some evidence that vertical

migration of water is minimal, we are not persuaded that the

quarry floor in which the landfill sits

is

impervious to leachate

seepage.

This site experienced dynamite blasting while, being

mined for limestone.

(Tr. at 40.)

Possible cracks or fissures

in the limestone floor could allow leachate to seep out of the

landfill.

Petitioner reasons that no observable drop in the

water level of the lake

is direct evidence that there are no

cracks

in the floor of the landfill.

(Tr.

at 41.)

However,

seepage may not be detected by observing the landfill’s water

level because it may be seeping at a similar rate at which

precipitation enters.

In addition, no evidence was provided that

convinces us that the layers of shale, gravel,

silt,

sand and

clay underneath the landfill are impermeable.

(Pet.

at Exhibit

---

9

7,

pp. 3~2,3~3.yTherefore,

vertical migration is possible.

The Board notes that it has previously allowed temporary

relief from background concentrations.

(Gallatiri National

Company v.

Fulton County Board and the County of Fulton, PCB 901-

183(January

18,

1991).)

However, Gallatin is distinguishable

from the present matter in that the Board temporarily relieved

the petitioner from background concentration data,

and restricted

the scope

of its decision to 35 Ill. Adm.

Code 812.317(1).

(i~..

at 10.).

In addition, Gallatin’s proposed landfill, although

located in an area previously mined for coal,

had an engineered

liner,

a surrounding area consisting of impermeable clay, and the

landfill was located away from any surface drainage.

(~~)

Therefore, the conditions are not comparable to the present

matter.

Level of Justification

As LSI correctly asserted, the two levels of justification

presume the presence of groundwater in the area at issue.

(Reply

at 4.)

However,

LSI has not answered the threshold question of

whether groundwater or an aquifer of concern was found within the

zone of attenuation.

Therefore,

at this time, the Board finds

that the level of justification was not met

in this matter.

However, we do recognize that, due to the area’s history of

mining, water found within the zone of attenuation has not

served, and likely will not serve, as a source of drinking water.

CONCLUSION

After a careful reading of the record, the Board hereby

denies an adjusted standard from the requirement of establishing

background concentrations for groundwater pursuant to 35

Ill.

Adm. Code 811.320(d).

Petitioner failed to prove the non-

existence of groundwater or an aquifer of concern, thereby

necessitating relief from background

concentration requirements.

This denial does not preclude LSI from filing a new petition for

an adjusted standard,

if circumstances should change.

This opinion constitutes the Board’s findings of fact and

conclusions of law.

5Although petitioner’s witness,

Mr.

Duo Vu, asserted that

a layer of

impermeable blue clay was discovered and documented,

no evidence of the

existence of

a layer of blue clay was found

in the record,

or provided after

hearing.

(Tr.

at 42—44).

---

10

ORDER

The Board hereby denies Lone Star Industries Inc.’s request

for an adjusted standard from 35

Ill.

Adin.

Code 811.320(d).

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

(415 ILCS

5/41

(1992)) provides for the appeal of final Board orders within

35 days of the date of service of this order.

The Rule of the

Supreme Court of Illinois establish filing requirements.

(See

also

35 Ill. Adm. Code 101.246, Motions for Reconsideration.)

I, Dorothy Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that the ab~veopinion and order was

adopted on the

~

day of

~

,

1995,

by a vote of

~

~.

~X~?

Dorothy M. G~nn,Clerk

~‘

Illinois Pct~lutionControl Board