ILLINOIS POLLUTION CONTROL BOARD
    August 11,
    1994
    LONE STAR INDUSTRIES,
    INC.,
    )
    Petitioner,
    v.
    )
    PCB 92—134
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    Respondent.
    SUPPLEMENTAL OPINION
    AND
    ORDER OF THE BOARD
    (by C.
    A. Manning):
    This matter
    is before the Board on petitioner’s May 18,
    1994
    motion for relief from final order pursuant to 35 Ill. Adm. Code
    101.301(b)(1).
    Lone Star Industries,
    Inc.
    (Lone Star)
    is
    requesting that the Board modify its May 20,
    1993 opinion and
    order in this matter, which granted Lone Star a variance from
    certain landfill regulations but with conditions.
    Lone Star is
    requesting that the Board modify one of these conditions and make
    an affirmative declaration that the requirement of 35 Ill.
    Adm.
    Code 811.320(d) does not apply to its facility.
    On June
    7,
    1994,
    the Illinois Environmental Protection Agency
    (Agency)
    filed its
    response to this motion and ‘on June 15,
    1994, Lone Star filed a
    reply to the Agency’s response.’
    BACKGROUND
    The facts of the underlying variance issuance can be found
    in the Board’s May 20,
    1993 opinion and order and are
    incorporated by reference
    in this matter.
    Based on the record
    before the Board at the time of the variance request, the Board
    found that Lone Star had presented adequate proof that immediate
    compliance with 35
    Ill. Adm. Code Subtitle G sections 814.302(a),
    811.313, 814.302(b)(1), 811.103(b),
    811.314, 811.320(d),
    811.317,
    815.202(a),
    815.203(b),
    812.316 and 811.110(d) would impose an
    arbitrary or unreasonable hardship on Lone Star.
    The Board
    granted the requested variance subject to certain conditions.
    Lone Star is requesting that the Board modify its order
    pertaining to Condition D which states:
    D.
    For the first quarter of sampling only.
    Lone Star
    shall conduct a broad volatile organic scan on samples
    of leachate removed from leachate wells NW—i, NW—2 and
    ‘The motion for relief will be referred to as “Mot. at.”

    2
    NW-3.
    Any parameter detected in this scan shall be
    added to the routine quarterly groundwater sampling
    list as well as any transformation or degradation
    products that could be derived from these constituents.
    Specifically, Lone Star requests that Condition D be replaced
    with the following provision to require monitoring for organics
    in accordance with 35 Ill. Adm. Code 811.319(a).:
    Any organic compounds found at concentrations in excess of
    any Class
    I groundwater standard in at least two samples
    from the same well will be included in the quarterly
    monitoring parameter list for all 16 wells.
    Lone Star believes that Condition D “entails an unwarranted cost
    burden that may not have been intended by the Board.”
    (Mot.at 2.)
    Lone Star has performed the required monitoring and has only
    detected a total of four
    (4) volatile organic chemicals (VOC5).
    Only one
    (1) detected VOC, toluene, has a Class
    I groundwater
    quality standard (GQS).
    The GQS for toluene
    is 1000 ug/l and the
    reported level of toluene was
    8 ugh
    and 14 ugh.
    The other
    three
    (3) VOC5 detected,
    acetone,
    1,l-dichloroethane, and 2-
    butanone, do not have established GQS.
    Lone Star states that
    Condition D would require the quarterly monitoring of these VOC5
    and their degradation products, would cause an economic burden
    without reason.
    (Not. at 5.)
    Lone Star argues that there
    is no
    justification for the requirement because the measured
    concentrations are below the concentrations allowed by 35
    Ill.
    Adm. Code 811.317(b)
    and 811.318(c)
    at the edge of the zone of
    attenuation.
    (Mot.
    at 5.)
    2
    In addition,
    Lone Star requests that the Board make the
    determination that paragraph
    5 of the Nay 20,
    1993 order,
    the
    requirement of setting background concentrations pursuant to 35
    2The Lone Star argues that there
    is no justification for the
    requirement for monitoring (as required in the condition D) because
    the measured concentrations are below the concentrations allowed by
    35 Ill.
    Adin. Code 811.317(b) and 811.318(c)
    at the edge of the zone
    of
    attenuation.
    It would
    appear that Lone Star
    is
    in
    error
    in
    drawing
    this
    conclusion.
    Section
    811.317(b)
    and
    811.318(c)
    requires prediction of the concentration by Groundwater Contaminant
    Transport
    (GCT)
    model.
    Lone
    Star
    has
    not
    calculated
    any
    such
    numbers
    and
    therefore
    the
    measured
    concentrations
    cannot
    be
    compared to concentrations allowed
    in the subsections 811.317(b)
    and 811.318(c).
    However,
    the detected levels of toluene are well
    below the GQS for that constituent.

    3
    Ill.
    Adm. Code 811.320(d), does not apply to its site.3
    Lone
    Star argues that due to the “unique geology and hydrogeology of
    its landfill and the immediately surrounding area” the concept of
    developing background concentrations as required in Section
    811.320(d)
    “.
    .
    .is inappropriate for its site and serves no useful
    purpose.”
    (Not. at 7.)
    Lone Star states that it cannot develop
    the background concentration because the procedures spelled out
    in Section 811.320(d)
    cannot be followed due to its site geology.
    (Not.
    at 9.)
    Secondly, Lone Star states that the thick layers of
    impermeable limestone and shale cause precipitation that migrated
    through the landfill to move horizontally until discharged away
    from the usable groundwater resource to surface water.
    (Mot at
    9.)
    Finally, Lone Star states that since Sections 811-815 were
    promulgated by the Board before the development of GQS, that the
    GQS provide the appropriate standards that apply to its site
    outside the zone of attenuation.
    (Mot. at 9-10.)
    DISCUSSION
    In its response filed on June 7,
    1994, the Agency agrees
    with Lone Star that the quarterly monitoring for the four
    detected volatile organic compounds, namely acetone,
    1,1—
    dichloroethane,
    2—butanone and toluene and their degradation
    products, would cause a substantial economic burden.
    The Agency
    suggests that Condition D be modified to require Lone Star to
    monitor all sixteen
    (16) of the wells in question once every two
    (2)
    years.
    The Agency states that the offered language by Lone
    Star is acceptable.
    However, the Agency requests that an
    additional provision be included to clearly signify that Lone
    Star is still subject to the confirmation of monitored increase
    procedures and the assessment monitoring requirements if an
    increase is confirmed.
    (35 Ill. Adm. Code 811.319(a) (4) (B) and
    35
    Ill.
    Adm. Code 811.319(b).)
    Lone Star’s Reply filed with the
    Board on June 15,
    1994 did not address the Agency’s request for
    this additional provision.
    The Board agrees that Condition D can be modified as stated
    by Lone Star to lessen the expense while still being protective
    of the environment and human health.
    However, we believe that
    the additional provision requested by the Agency should be
    included in the modified Condition D.
    The Board will replace
    ~ Paragraph
    5 of the May 20,
    1993 order reads as follows:
    5.
    Section 811.320(d)- Requirement for setting background
    concentrations for groundwater extended to May 20,
    1995
    or
    120
    days after
    final
    Board
    action
    on
    an adjusted
    standard petition or rule change, or determination by the
    Board that the requirement is non—applicable, whichever
    is earlier.

    4
    Condition D of the May 20,
    1993 in this order as follows:
    Any organic compounds found at concentrations in excess of
    any Class
    I groundwater standard in at least two samples
    from the same well will be included in the quarterly
    monitoring parameter list for all
    16 wells.
    In addition,
    the requirements of
    35 Iii.
    Adm. Code 811. 319 (a) (4) (B) and
    811.319(b)
    apply to these monitoring wells.
    The Agency argues that the second request for modification
    made by Lone Star, that the Board find 35 Ill. Adm. Code 811.320
    inapplicable to its site,
    is premature and better suited for an
    adjusted standard proceeding or site-specific regulation.
    The
    Agency’s main contention is that there is not yet sufficient
    information to determine
    if the requirements of 35
    Ill.
    Adm. Code
    811.320(d)
    are “impossible and pointless.”
    Lone Star request is for permanent relief from the
    requirements of
    35 Ill. Adm. Code 811.320 via a motion to modify
    the Board’s variance order of May 20,
    1993.
    The Board agrees
    with the Agency that the request for permanent relief
    is
    inappropriate in this context.
    The very nature of the relief
    pursuant to a variance proceeding set forth in Section 35 of the
    Act is temporary.
    The Board accordingly denies this portion of
    the motion to modify. However,
    the Board is not making a finding
    on the merits of the request.
    Lone Star may petition the Board
    for the requested relief pursuant to an adjusted standard or a
    site-specific rule proceeding.
    CONCLUSION
    The Board finds that Lone Star has presented justification
    for the Board to modify its order dated May 20,
    1993 as to
    Condition D of the that order.
    However, we find that the request
    for permanent relief from 35 Ill. Adm. Code 811.320(d)
    is
    inappropriate in this proceeding.
    For the convenience of the
    parties, the text of the May 20,
    1993 order as modified today is
    set forth in its entirety below.
    This supplemental opinion constitutes the Board’s
    supplemental findings of fact and conclusions of law in this
    matter.
    ORDER
    Lone Star Industries (Lone Star)
    is hereby granted a
    variance for its cement manufacturing facility located in
    Oglesby,
    Illinois from the following provisions for the following
    periods:
    1.
    Sections 814.302(a)
    and 811.313
    -
    Minimum of one foot
    cover within 60 days of waste placement extended to

    5
    December 31,
    1992.
    2.
    Section 814.302(b)(1)—
    Installation of a leachate
    management system extended to December 31,
    1994.
    3.
    Section 811.301(b)
    Diversion of runoff from
    undisturbed areas extended to December 31,
    1992.
    4.
    Section 811.314
    -
    Installation of
    a final cover system
    that meets all stated design standards extended to May
    20,
    1995 or one year after final Board action on an
    adjusted standard petition or rule change,
    or
    determination by the Board that the proposed final
    cover system meets the requirements of the existing
    rule, whichever is earlier.
    5.
    Section 811.320(d)
    -
    Requirement for setting background
    concentrations for groundwater extended to May 20,
    1995
    or 120 days after final Board action on an adjusted
    standard petition or rule change, or determination by
    the Board that the requirement is non-applicable,
    whichever is earlier.
    6.
    Sections 811.317,
    815.202(a),
    815.203(b)
    and 812.316—
    Completion of groundwater impact assessment and
    submittal as part of Initial Facility Report extended
    to December 31,
    1994.
    7.
    Sections 815.202(a),
    815.203(b)
    and 811.110(d)—
    Completion and submittal of a written Closure Plan as
    part of an Initial Facility Report extended to May 20,
    1995 or 120 days after final Board action on an
    adjusted standard petition or rule change modifying the
    applicable requirements for the final cover system,
    whichever is earlier.
    8.
    Section 811.309(c) (4)-
    Basins will be constructed with
    liners to control seepage to groundwater extended to
    May 20,
    1995 or 180 days after Board action on an
    adjusted standard petition or rule change,
    or
    determination by the Board that the requirement is
    non—applicable, whichever is earlier.
    The variance is granted subject to the following conditions:
    A.
    The minimum one foot of cover shall conform to the
    requirement specified
    in 35 Ill.
    Adm. Code 807.305(b).
    B.
    The pit shall be completely de-watered by March
    31,
    1994 and shall be so maintained throughout the
    term of this variance.
    Lone Star shall apply for
    and receive
    a
    permit by December
    31,
    1993,
    from

    6
    the Agency’s Bureau of Water,
    Permit Section, to
    discharge waste waters collected from the western
    pit to a treatment facility,
    if needed to
    completely de-water the pit by March 31,
    1994.
    Additionally, the treatment facility shall apply
    for and receive a supplemental permit from the
    Agency’s Bureau of Land, Permit Section.
    C.
    Sodium and the Field Parameters listed below shall be
    added to the quarterly groundwater sampling list.
    Bottom of well elevation (feet reference mean sea
    level)
    to be reported annually.
    Depth to water
    (feet below surface).
    -
    Depth to water
    (feet from measuring point).
    Elevation of groundwater surface
    (feet reference
    mean sea level).
    D.
    Any organic compounds found at concentrations in excess
    of any Class
    I groundwater standard in at least two
    samples from the same well will be included in the
    quarterly monitoring parameter list for all
    16 wells.
    In addition, the requirements of
    35 Ill.
    Adin.
    Code
    811.319(a) (4) (B) and 811.319(b)
    apply to these
    monitoring wells.
    E.
    Within forty—’five
    (45) days of the date of the
    Board’s order, Lone Star shall submit the
    following Certification of Acceptance to:
    Illinois Environmental Protection Agency
    James
    G. Richardson
    Division of Legal Council
    2200 Churchill Road
    P.O. Box 19276
    Springfield, IL
    62794—9276
    The 45-day period will be held in abeyance during any period
    that this matter
    is being appealed.
    Failure to execute and
    forward this certificate within 45 days shall render the variance
    null and void.
    The form of the Certificate shall be as follows:
    CERTIFICATION
    I,
    (We),
    ,
    having
    read and fully understanding the order
    in PCB 92-134, dated May
    20,
    1993 as modified August
    11,
    1994,
    hereby accept that order
    and agree to be bound by all of its terms and conditions.
    Petitioner

    7
    Authorized Agent
    Title
    Date
    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.
    The Rules of the Supreme Court of Illinois
    establish filing requirements.
    (See also 35 Ill.
    Adm. Code
    101.246, Motions for Reconsideration.)
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board,
    hereby certify that the above suppi mental opinion and
    order was adopted on the
    /T~~-~
    day of __________________________
    1994, by a vote of
    ~‘C.
    //
    /
    Dorothy ~
    ClerJ~
    Illinois Po)t9.ution Control Board

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