ILLINOIS POLLUTION CONTROL BOARD
February 7,
1991
MARATHON PETROLEUM COMPANY,
)
Petitioner,
v.
)
PCB 90—126
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on Marathon Petroleum
Company’s (“Marathon”) permit modification appeal filed on July
3,
1990.
On September
28, 1988 Marathon was granted a RCRA
(Resource Conservation and Recovery Act) Part B permit pursuant
to Section
39(d) of the Act for a land treatment facility
in
regards to its Robinson oil refinery located in Crawford
County.
On January
26,
1990 Marathon submitted a number
of
modifications
to the Illinois Environmental Protection Agency
(“Agency”)
in an attempt to alter some of the terms and
conditions of that permit.
Many of these highly technical issues
were negotiated and subsequently resolved and, as a result,
the
parties filed a partial settlement agreement with the Board on
November
1,
1990.
Having only two disputed issues remaining,
Marathon filed this appeal pursuant to
35 Ill.
Adm. Code Section
705.128 and hearing was held on October
30,
1990.
For the
following reasons,
the Board affirms the Agency’s decision to
retain the permit conditions which Marathon contests.
Before the Board addresses the permit conditions at issue
in
today’s case, We will briefly touch upon the partial settlement
agreement
filed by the parties.
While Section 40 of the Act
provides for Board review of permit appeals,
the Agency is
charged with the initial determination as to whether the permit
conforms with the Act and the regulations thereto.
...the applicant shall apply to the Agency for
such permit and it shall be the duty of the
Agency to issue such a permit upon proof by
the applicant that the facility,...will
not
cause a violation of this Act or of
regulations hereunder.
Ill.
Rev.
Stat. 1989, Chap. l11~,par.
1039(a).
Accordingly,
when the Agency and a permittee enter
into an
agreement as
it
relates to a factual
issue
for
a permit or
a
condition thereof,
ratification by the Board
is unnecessary.
118—239
—2—
With regard to those challenges properly before
the Board,
Marathon’s first
issue of concern involves the measurement of two
specific volatile organics.
Marathon states that methyl ethyl
ketone (“MEK”) and tetrahydrofuran
(“THF”) are being detected in
unsaturated zone samples of pore water during quarterly
monitoring.
Marathon alleges that the source of these volatile
organics
stern from the polyvinylchloride
(PVC)
cement used in the
lysimeter construction, as opposed to the wastestream
constituents generated by the oil refinery.
Based on this,
Marathon’s request
is to incorporate a permit modification
precluding MEK and THF from being compared with the respective
background concentrations
*
In support
of this contention, Marathon introduced a study
performed by its consultant Radian Corporation
(Petitioner’s
Exhibit #2).
This exhibit was introduced into evidence by the
hearing officer over the Agency’s objection.
The Agency
contended that the only admissible evidence
is that which was
before the IEPA at the time the decision was made to deny the
permit request.
We agree.
Therefore,
the ruling of the hearing
officer
is overruled and the objection is sustained.
35
Ill. Adm. Code Section 705.128 governs modifications of
RCRA permit modifications.
Subsection
(b)
of the Code states:
If the Agency decides the request
is not
justified,
it shall send the requester
a brief
written response giving a reason for the
decision.
Denials of requests for
modification are not subject to public notice,
comment or hearings.
Denial of the request to
modify may be appealed to the Board pursuant
to 35
Ill. Adm. Code 105.
The courts as well as the Board have had ample opportunity to
interpret the provisions of
35
Ill. Mm.
Code Section 105.
It
is
well-settled that at a hearing before the Board to contest a
denial of
a permit,
the sole question before the Board is whether
the applicant proves that the application, as submitted to the
Agency, demonstrated that no violation of the Act would have
occurred if the requested permit had been issued.
EPA v.
Pollution Control Board, 104 Ill.
Dec.
786
(1986); Joliet Sand
and Gravel
v. Pollution Control Board, PCB 86—139
(February
5,
1987), affm,
516 N.E.2d 955 (3rd Dist.
1987).
See also,
35
Ill.
Adm. Code 105.103(2).
Accordingly,
the only evidence the Board
will review is that which the Agency had access to at the time of
its decision.
Even without Petitioner’s Exhibit
2,the Agency did have
before
it Marathon’s assertion that the presence of MEK and THF
is being caused by
the PVC glue used in lysimeter construction.
Marathon represents that MEK has not been detected
in any wastes
118—240
—3—
applied to the land treatment facility and that a literature
search indicated that PVC cement used in lysimeter construction
had as common constituents both MEK and THF.
Marathon maintains
that, although the soil—pore liquid sample never comes in contact
with the PVC cemented joints,
the polyethylene tubing used for
sample collection
is permeable to MEK and THF resulting
in
contamination of
the soil—pore samples.
Based on the conclusion that the detection of MEK and THF in
soil—pore samples
is due to the PVC cement, Marathon requested
a
modified protocol
for sampling
in its permit application.
According
to this modified protocol, the first samples to be
collected from the lysimeters are to be tested for metals,
total
organic carbon and semi—volatile organics, but not for volatile
organics
(which include MEK and THF).
Before a sample for
volatile organics is collected, distilled water
is to be drawn
through the lysimeter.
The first action is
intended to flush the
lysimeter and remove MEK which has accumulated in the vacuum
lines and lysimeter body.
The second distilled water wash is
intended to flush out the remaining MEK from the system.
The
protocol also included some additional details of how the
flushing
is
to be carried out.
Prior to
the Agency decision, an Agency reviewer had
attempted to obtain information from Marathon regarding the MEK
detection.
On April 19, 1990, Agency reviewer,
listed as DWD,
spoke with David Saad and Vicki May of Marathon to ask about
the
MEK problem.
The reviewer was told that MEK had not been
analyzed prior
to 1988 and that he did not know off—hand what the
measured concentrations were,
but
it was suggested that he speak
with Mike Holder of Radian Corporation.
(See Agency Record pp.
620).
A second conversation was held on April 19,
1990 by DWD
with Mike Holder and Lynn Zimmerman from Radian Corporation who
said that MEK was being detected in concentrations no greater
than
5 times
the detection limit and provided the same reasons as
in this petition for a modification
to the sampling protocol.
It
was also indicated that they (Holder
& Zimmerman) had
4 tables
showing that the MEK was from the tubing, and not from the water,
would be faxed to the Agency.
(Agency Record pp.
621).
It is
not clear
if any tables were sent by Marathon or
received by the
Agency and whether such information was utilized in the Agency’s
decision.
The review notes from DWD also note that he questions
the modified protocol and that after speaking with Cindy Davis
and Ken Liss
(also Agency permit reviewers), he thought that the
proposed protocol for flushing out MEK would result
in the loss
of volatile organics.
In the Agency letter, approving some modifications and
disapproving others, dated May
29, 1990
(Agency Exhibit 8),
the
Agency states that Marathon did not provide all of the background
data collected to date
to show that the problem
(of MEK
detection) has been reoccuring and that Marathon had not proved
118—24 1
—4—
that the problem is due to the cement from the PVC pipe.
The
Agency recommended the replacement of the PVC pipe and tubing,
use ofthreaded connections for PVC pipe and use of Teflon
for
the tubing.
The testimony of Cindy Davis—Vilson, who reviewed
the application, repeated the recommendation and indicated that
the sampling protocol requested by Marathon would not provide a
representative sample of the volatiles present in the soil—pore
liquid.
(Tr. pp. 75—77).
Ms. Davis also testified that while
waste analysis shows no MEK, such waste analysis was not
conducted prior
to 1984.
The absence of MEK in the refinery wastestream coupled with
the literature review regarding PVC cement constituents provides
some indication for suspecting the cement as the source of the
MEK and the THF in the soil—pore samples.
Even assuming that
enough information was given to
identify the cement as the cause
of the MEK and THF present
in soil-water,
however, Marathon has
not shown that the sampling protocol modification requested will
be effective
in completely removing all the MEK and THF and that
it would not affect the representativeness of samples so
collected with regard to the volatile components
in the soil—pore
water.
Based upon the information within the record,
the Board
is satisfied that the petitioner failed to carry its burden
pursuant to Section
40 of the Act
in addition to the Board’s
rules
(Ill.
Adm. Code 105.102;) regarding permit reviews of
hazardous waste disposal sites.
As such,
the Agency’s denial of
the permit modifications as
it pertains
to Marathon’s request
for
an alternative protocol for the sampling of MEK and THF
in the
soil—pore samples
is affirmed.
Lastly,
in their Brief dated December
11, 1990, Marathon has
asked that any measurements of MEK not be statistically compared
with the background values.
This
is not part of the sampling
protocol modification requested in the original application.
Further such a change would only be possible if Marathon had
shown that the presence of MEK and THF
in the lysimeter samples
do not affect the representativeness of the collected sample or
the concentration of other constituents of interest.
The second issue that could not be settled arises because,
under the present permit, the Agency requires that Marathon use a
statistical procedure called the average replicate t—test
(“t—
test”)
for groundwater analysis and comparison with the
background.
Marathon characterizes the t—test as “essentially a
probability equation which predicts one event
into the future”
(Tr. pp.
46—48).
Marathon alleges that
a “moving window”
analysis would be more appropriate
in that
it would provide for
necessary change during the life of the facility.
The company
further argues that the “moving window” procedure would allow for
potential changes
in background levels by averaging the four most
current samples and prevent the inappropriate use of the t—test,
which presently requires the samples to be measured against the
original background.
118—242
—5—
The Agency, on theother hand, argues that the first year of
background data was incorrectly collected and thus the period for
ascertaining this information has been extended for one year.
It
is therefore the Agency’s position that this issue is not ripe
for a decision until the full two years of background sampling is
completed and statistically analyzed.
The Agency also professes
that theories of various statistical procedures can be argued
anytime, but their actual application and effect on a particular
site’s data cannot be known without the actual data and the
analysis thereof.
Once the two years of data are obtained,
Marathon can propose to the Agency an alternative statistical
procedure as allowed by Marathon’s
RCRA
Part B permit pursuant to
35
Ill. Adm. Code Section 724.197(h)
and
(i).
The Board first notes that
it is unable
to see any reference
to the “moving window” procedure
in either Marathon’s application
for modification within the Agency record.
Assuming, however,
that the “moving window” method for determining background was
before the Agency
in this modification request,
the Board agrees
with the Agency.
The statistical procedure in dispute
is
designed
to compare the measured concentration of
a constituent
in a sample with the background concentration of that
constituent.
Marathon’s characterization of the t-test as
“essentially a probability equation which predicts one event
into
the future”
is incorrect.
Moreover, the present permit allows an
alternative statistical procedure to be used upon a showing that
the prescribed t—test
is inappropriate or that the modification
requested comports with Section 724.197 of the Administrative
Code.
In general, changes
in concentration at a background
monitoring well could stem from a wealth of sources.
Thus,
any
change in the statistical procedure utilized should be premised
upon specific information as to why the contamination in question
is occuring.
The Agency is correct in not allowing the automatic
use of a “moving window” approach to establishing background
in
that Marathon failed to prove conformance with
35
Ill. Mm. Code
Section 724.197.
it would be more useful
if data collection from
the background monitoring well were continued
(at least until a
background is established)
in order
to detect any trends and,
if
warranted,
request the Agency for
a permit modification to change
the background concentration.
The “moving window” approach would
potentially alter the statistically established background
if new
samples were collected in background wells showing a level of
contamination greater than that originally measured.
This would
allow the background to be modified without a showing of the
source of the contamination.
Such a change
in background might
be warranted, for example,
if the cause of the difference in the
background is also the cause of an identical change in the
background of a well that
is being monitored for purposes of
compliance
(i.e., comparisons with the background).
Marathon is
currently required to use replicate samples
to establish
I 18—243
—6—
background and use the t—test to determine if there are any
increases above this analysis which are based upon the originally
established background.
Marathon’s objection to this requirement
appears to be philosophical
rather than evidentiary.
Since
Marathon has not provided the Agency or
the Board with any
specific documentation as to why the background determination
procedure should be changed,
we decline
to do so today.
Because
Marathon has failed to establish that the permit modifications
requested would not violate the Act,
the Agency’s denial of the
permit modifications
in the instant case
is affirmed.
This Opinion constitutes the Board’s findings of fact and
conclusions of
law.
ORDER
The conditions imposed by the Agency as
to Marathon’s RCRA
part
B permit modification for its Robinson oil refinery are
hereby affirmed.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989 chap.
111—1/2 par.
1041,
provides for appeal of Final
Orders of the Board within
35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~y~
that the ab~sieOpinion and Order was
adopted on the
7~-~-
day of
~
1991 by a vote
of
.
7
/~
~
,
Dorothy M. Gu,~1, Clerk
Illinois PolWtion Control Board
118—244