ILLINOIS POLLUTION CONTROL BOARD
    December
    1,
    1994
    IN THE MATTER OF:
    )
    PETITION OF WINNEBAGO RECLAMATION
    )
    AS 94-11
    SERVICE,
    INC. FOR AN ADJUSTED
    )
    (Adjusted Standard)
    STANDARD, FROM 35 ILL. ADM. CODE
    )
    811.710(c)
    AND
    811.713(c) (1)
    )
    JOHN HOLSTROM III, APPEARED ON BEHALF OF WINNEBAGO RECLAMATION
    SERVICE,
    INC.;
    ROBERT J. SCHERSCHLIGHT APPEARED ON BEHALF OF THE ILLINOIS
    ENVIRONMENTAL PROTECTION AGENCY.
    OPINION
    AND
    ORDER OF THE BOARD
    (by
    E. Dunham):
    On June 2,
    1994, Winnebago Reclamation Service,
    Inc.
    (petitioner)
    filed a petition for adjusted standard regarding
    Pagel’s Landfill Facility in Winnebago County,
    Illinois.
    A
    certificate of publication was filed on August
    4,
    1994.
    The
    Illinois Environmental Protection Agency (Agency)
    filed a
    recommendation with the Board on June 7,
    1994, recommending that
    the adjusted standard be granted.
    A hearing was held in this
    matter on October 14,
    1994,
    before hearing officer Allen
    Schoenberger.
    No members of the public attended the hearing.
    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 to “determine, define and implement
    the environmental control standards applicable in the State of
    Illinois” (415 ILCS 5/5(b) (1992)) and to “grant
    *
    *
    *
    an adjusted
    standard for persons who justify such an adjustment”
    (415 ILCS
    5/28.1(a) (1992)).
    More generally the Board’s responsibility is
    based on a 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.
    ADJUSTED STANDARD PROCEDURE
    The adjusted standard provision of the Act, at Section 28.1
    (415 ILCS 5/28.1
    (1992)), was created by the legislature to
    provide an expedited alternative to site-specific rulemaking.
    The result of either an adjusted standard or a site—specific rule
    proceeding is the same
    (i.e.,
    relief from a particular rule).
    In both a general rulemaking proceeding and a site—specific
    rulemaking proceeding, the Board, pursuant to Section 27 of the
    Act,
    is required to take the following factors into
    consideration: the existing physical conditions, the character of
    the area involved, including the character of surrounding land
    2
    uses,
    zoning classifications, the nature of the existing air
    quality, or receiving body of water,
    as the case may be, and the
    technical feasibility and economic reasonableness of measuring or
    reducing the particular type of pollution.
    (See specifically,
    Section 27(a).)
    Section 28.1 of the Act establishes the level of
    justification required for an adjusted standard and also requires
    the adjusted standard to be consistent with Section 27(a).
    The
    level of justification required, as set forth in Section 28.1(c),
    is that the petitioner present adequate proof that:
    •
    factors relating to that petitioner are substantially
    and significantly different from the factors relied
    upon by the Board in adopting the general regulation
    applicable to that petitioner;
    •
    the existence of those factors justifies an adjusted
    standard;
    •
    the requested standard will not result in environmental
    or health effects substantially and significantly more
    adverse than the effects considered by the Board in
    adopting the rule of general applicability; and
    •
    the adjusted standard is consistent with any applicable
    federal law.
    DISCUSSION
    Petitioner requests relief from 35 Ill. Adm. Code 811.710
    and 811.713 as those sections specify the form of trust and
    letters of credit allowed as financial assurance for closure and
    post closure care of a waste disposal site in Winnebago County.
    The site in question, Pagel’s Pit,
    is on the Federal National
    Priorities List
    (NPL)
    established under the Comprehensive
    Environmental Response, Compensation and Liabilities Act
    (CERCLA).
    The U.S. EPA has accepted the trust and letters of
    credit offered by petitioner
    in a consent decree entered on
    February 10,
    1993, between U.S. EPA and petitioner in United
    States vs. Winnebago Reclamation Service Inc.
    et al.
    No.
    92C20346, U.S. District Court for the Northern District of
    Illinois, Western Division.
    The Board finds that Winnebago Reclamation Service,
    Inc. has
    provided sufficient justification for the granting of an adjusted
    standard.
    Petitioner is not subject to 35 Ill. Adm. Code Parts
    724 and 725 and has already provided financial assurance to the
    U.S. EPA and the Agency for Closure/Post-Closure activities as
    part of the consent decree.
    The granting of the adjusted
    standard will not result in environmental or health effects
    substantially or significantly more adverse than the effects
    3
    considered in adopting the rule.
    The adjusted standard is
    consistent with federal law.
    The Board finds that imposition of financial assurance
    according to the forms specified in Appendix A of 35 Ill. Adm.
    Code 811 in addition to the trust and letters of credit specified
    in the consent decree constitute an unreasonable hardship for
    petitioner.
    The Board notes that the site is under strict
    scrutiny of the Agency and of the U.S.
    EPA, and that the consent
    decree containing the existing financial assurance mechanism is
    enforceable by the consent of the parties in Federal Court.
    The Board therefore, grants an adjusted standard to
    Winnebago Reclamation Service,
    Inc. from the financial assurance
    forms allowed under 35
    Ill. Adm. Code 811.710(a)
    and
    811.713(c) (i) as ordered below.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The Board hereby grants the following adjusted standard from
    35 Ill.
    Adm. Code 811.710 and 811.713 to Winnebago Reclamation
    Service,
    Inc.:
    In addition to the mechanisms which may be utilized
    under 35 Ill.
    Adin. Code 811.706 to provide financial
    assurance for closure and post closure case and for
    corrective
    action,
    Winnebago
    Reclamation
    Service,
    Inc.,
    shall
    be entitled to utilize
    the Letter
    of
    Credit and the Trust Fund established
    pursuant to
    the Consent Decree in the case entitled United Staes
    vs Winnebago Reclamation
    Service.Inc.,
    et
    al.
    No.
    92C20346,
    U.S.
    District
    Court
    for
    the
    Northern
    District of Illinois, Western Division,
    to provide
    financial assurance for any closure and post closure
    and corrective action activities at the Pagel’s Pit
    Landfill facility which are also required under that
    Consent Decree.
    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 the Supreme Court of Illinois establish filing requirements.
    (See also 35 Ill. Adm. Code 101.246, Motion for Reconsideration.)
    4
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    do hereby certify that the above opinion and order was
    adopted on the /~
    day of _____________________________
    1994, by a vote of
    7’—~)
    .
    ,
    Clerk
    ~lution Control Board
    Doro
    -
    Illinois
    V

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