ILLINOIS POLLUTION CONTROL BOARD
Nay 19,
1994
ROCK-OLA
MANUFACTURING
)
CORPORATION,
)
)
Petitioner,
)
PCB 90-24
)
(Permit Appeal)
v.
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
DISSENTING OPINION
(by C.A. Manning and M. McFawn):
We are in dissent with the majority opinion and order in
this case.
We would affirm the letter issued by the Illinois
Environmental Protection Agency
(Agency) on January 8, 1990
withholding approval of the certification of closure for Rock—
Ola’s interim status hazardous waste facility.
The majority
opinion recites, and we agree, that Rock—Ola bears the burden of
proof to establish that no violations of the Act or Board
regulations would occur if the closure plan certification was
approved as submitted to the Agency by Rock-Ola.
Yet, rather
than finding that the evidence submitted by Rock-Ola was
sufficient to prove that the contested cleanup objectives are not
necessary to prevent a violation of the Act or Board regulations,
the majority finds that the record does not support the cleanup
objectives established by the Agency. Of course, since Rock-Ola
only argued that the contested soil cleanup objectives are
“revised” cleanup objectives,
and that they are arbitrary,
capricious, and unreasonable, there is no such evidence.
As a
result, to reach its outcome, the majority placed the burden of
proof on the Agency.
This arbitrary shift is contrary to the
standard opined by the majority and established case law
addressing the burden of proof in permit appeals before the
Board.
Rock—Ola contests the revision of one and the imposition of
three new soil o~jectivesby the Agency in its denial letter of
January
~,
1989.
Specifically, the majority found that
(1)
“the
revised
clean—up objectives for tetrachloroethylene and
trichloroethylene are not supported by the record”,
in that “the
record does not show that the Act or Board regulations would be
violated by the occurrence of these two VOCs at their reported
1
We would agree that the Agency cannot revise
the cleanup objective
for 1,1,1-trichioroethane.
Rock—Ola has proven satisfaction of the original
cleanup objective.
Thus,
the burden shifts
to the Agency.
The Agency failed
to prove why such satisfaction was
not sufficient
to prevent a violation of
the Act or Board regulation.
2
concentrations,” and are unreasonable “because the Agency knew
that the chemical occurred on the site prior to the closure plan
approval”
(P.27); and
(2) the
“revised
imposition of a
revised
clean-
up objective for vinyl chloride is unreasonable and not supported
by the record”, because “the Agency detected several other
hazardous VOCs which were not given clean—up objectives.”
We disagree that the Agency issued “revised” cleanup
objectives for any contaminant other than 1,1,l-trichloroethane.
Soil cleanup objectives for the other three contaminants were not
established by the Agency until its January 8, 1990 letter
withholding certification of clean closure.
No soil cleanup
objectives for these three contaminants were contained in either
the Agency’s original or modified cleanup plan approval letters
dated October 26,
1988 and May 11,
1989.
Furthermore, the Agency
reserved the right to establish soil objectives for these and
other constituents in both letters at identical Conditions 7 and
12, respectively.
In pertinent part,
the Condition provides:
Cleanup objectives for parameters identified with
concentrations greater than the applicable PQL will be
established by the Agency
upon receipt
ofthe analysis
results.
Rock-Ola never appealed this Condition, although its very
language informed Rock-Ola that additional cleanup objectives
would be forthcoming depending on the soil analytical results
generated during cleanup.
The Agency clearly reserved the right
to impose. new cleanup objectives and, then,
did so upon receipt
of the analysis results for three parameters, two of which were
identified as having concentrations greater than the applicable
PQL.
The analytical results, which were generated in November,
1988, were received by the Agency on July 31,
1989.
Thereafter,
the Agency exercised the authority reserved at Condition 12.
Neither Rock-Ola nor the majority contests that reservation of
authority.
Yet the majority opinion allows Rock-Ola to do just
that by finding that the contested soil objectives are somehow
“revised” objectives.
The ‘~gencyhaving exercised its right to establish the
site—specific cleanup objective for tetrachloroethylene,
trichloroethylene and vinyl chloride, the issue becomes whether
the Agency’s cleanup objectives are technically warranted.
In
other words, if Rock-Ola is correct and the closure plan should
not be modified with these cleanup standards, would the closure
plan without the revisions violate the Act or Board regulations.
(Browning Ferris Industries,
Inc.
v.
IEPA,
(May 5,
1988), PCB 84—
136, affirmed, Browning Ferris Industries,
Inc. v. PCB, 179
Il..
App. 3d 598,
128 Ill.
Dec. 434,
534 N.E.2d 616
(2nd Dist. 1989).)
3
“Based on the record”, the majority comes to the conclusion
that the closure plan without these objectives would not be
violative of either the Act or Board regulations. Concerning
tetrachloroethylene and trichloroethylene, the majority agrees
with Rock—Ola,
in sum, because the Agency knew about the presence
of these two contaminants when it approved and subsequently
modified Rock—Ola’s closure plan,
and because the cleanup
objectives were set a levels lower than the levels detected prior
to approval of the closure plan.
This rationale ignores the
evidence that the levels detected during cleanup were
significantly higher and at different hot spots than found prior
to cleanup.
Rock—Ola is never compelled to prove why these
conditions do not warrant cleanup objectives; instead, the
majority opinion obligates the Agency to defend its decision.
Vinyl chloride is another example as to why the Agency
reserved the right to establish new cleanup objectives.
Unlike
the other two compounds, vinyl chloride was not detected prior to
cleanup and Rock-Ola did not test for it during cleanup, although
it was required to do so pursuant to the approved closure plan.
Upon receipt of the analytical results, the Agency established a
cleanup objective for vinyl chloride, which it characterized as a
degradation product of the other two VOCs.
(See Agency Response
Brief at at 10 and 31.)
Yet, the majority precludes it from
doing so on the fabricated argument that the Agency established
no cleanup objeOtives for other hazardous compoun4s detected at
similar levels prior to cleanup.
Rock—Ola never even makes this
argument, and we fail to see the relevance of this majority’s
comparison to the Agency’s handling of the other hazardous
compounds.
Finally, the record is lacking any specific arguments or
information to explain why the site should be considered
sufficiently “clean” to meet this standards established in 35
Ill. Adm. Code Part 725
eta!.
In 3rowning Ferris, the appellate
court clearly articulated that the burden of proof to show why
the “modification” is not necessary is on the petitioner.
Only
after a
prima
facie case has been established, does the burden
shift to the Agency to support its application of the permit
modifica~ions,in this case additions to the closure plan prior
to its approval.
~
at 441).
As Rock—Ola confines its
arguments to procedural matters and estoppel arguments regarding
the Agency’s failure to follow its
own
internal procedures, never
reaching the issue of why the closure plan without these
modifications is in compliance with the Act or Board regulations,
the
prima facie
case is not satisfied.
Therefore, we would find
that Rock—Ola has not carried its burden and absent that evidence
the Agency cannot be ordered to issue a certificate of “clean”
closure.
4
For the above reasons, we respectfully dissent.
&
d
Claire A. Manning
Marili McFawn
chairman
Board Member
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certif
that the
above di
senting opinion was
entered on the
________
day of
________________,
1994.
~
~.
Dorothy M.
Gt)l~h, Clerk
Illinois Pol4Jation Control Board