ILLINOIS POLLUTION CONTROL BOARD
July 27, 1989
MARATHON PETROLEUM CO.,
Petitioner,
v.
)
PCB 88—179
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
JOSEPH S. WRIGHT, JR., ESQ., APPEARED ON BEHALF OF PETITIONER;
AND
BRUCE L. CARLSON, ESQ., APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes to the Board on a November 3, 1988
petition for hearing filed by Marathon Petroleum Company
(“Marathon”). That petition seeks review of several conditions
imposed by the Illinois Environmental Protection Agency
(“Agency”) in the Resource Conservation and Recovery Act (“RCRA”)
Part B permit issued for Marathon’s Robinson, Illinois,
facility. See Section 21 (f) of the Environmental Protection
Act. Public hearings were held in Robinson on January 26, and
27, 1989. One member of the public filed an objection and
testified at hearing. Marathon filed a closing brief on March
27, 1989. The Agency did not file a brief. On June 5, 1989,
Marathon noted the passing of time within which briefs were to be
filed and requested the matter be decided on the present record.
Marathon operates a refinery engaged in processing crude oil
and producing petroleum products such as gasoline, fuel oil, oil
and coke. The facility occupies approximately 900 acres near the
City of Robinson, in Crawford County, and has a capacity of
195,000 barrels per day. The western portion of the site
contains the refinery, the eastern portion is used for farming.
Marathon currently holds Illinois Air Operating permits for
34 separate operating units and tanks. Marathon also has an
NPDES permit for its wastewater treatment plant discharge.
Today’s proceeding involves aspects of Marathon’s operations
governed by RCRA. The Marathon facility manages a wide variety
of hazardous wastes at the following types of management units:
container storage, tank storage, surface impoundments, and land
treatment.
101-~259
—2—
The administrative record presently before the Board is over
5,000 pages long.* The record involves two permits; first, a
final Part B RCRA permit issued by the Agency, and second, a
hazardous waste permit issued by the United States Environmental
Protection Agency (“USEPA”) pursuant to the Hazardous and Solid
Waste Amendments of 1984 to RCRA (“HSWA”). While the final RCRA
permit is over 200 pages long, the challenged substantive
conditions occupy less than a page of text in total.
On appeal, Marathon asserts three issues for Board review:
1. The Agency failed to issue Marathon’s
RCRA permit in a timely manner and,
therefore, the permit issued as a matter
of law as requested by Marathon (without
the offending conditions);
2. The Agency’s imposition of groundwater
monitoring and reporting on a quarterly
basis is without support in fact or law
and that the semi—annual monitoring
requested by Marathon is adequate; and
3. The Agency imposed condition that re-
quires immediate closure of 30’ by 30’
outdoor container storage area is
arbitrary and capricious.
No other portion of the RCRA permit is challenged, and no part of
the USEPA HSWA permit is challenged here.
Permit by Default
In its Nove~nber 28, 1988 and c~n.b?~12, 1938 bric2i~,
Marathon asserts that its RCRA Part B permit issued by operation
of law. The Agency filed a reply brief on November 28, 1988.
Marathon argues that the last paragraph of Section 39(a) of
the Act applies, which provides that the applicant may deem the
permit issued if the Agency fails to take final action on the
permit by a stated time limit (in this case 180 days). The
Agency argues that Section 39(d) applies, which provides in the
first sentence that the Agency “may issue RCRA permits
exclusively under this subsection” and thus renders the time
limits of Section 39(a) inapplicable.
*
The Administrative Record filed by the Agency consists of 4,930
consecutively numbered pages. They will be cited as, “Adm. Rec.,
p. XXX.” The Pollution Control Board hearing transcript will be
cited as, “R. XXX.” Other documents will be cited by name and
page.
101—260
—3—
The Agency essentially argues that where there is an express
statutory statement of exclusive applicability, statutory
construction dictates that it prevail, quoting from Sutherland
Statutory Construction, Section 57.09 (4th Edition) as follows:
One of the strongest indications of what
construction should be given a statutory
provision may be found in the use of negative,
prohibitory, or exclusionary words
Words of a statute indicating that a
particular course of action, or the like, is
intended to be exclusive, are mandatory.
Agency Br. p. 3)
Marathon puts forth a number of arguments in rebuttal,
including:
The Agency’s argument precludes application of the rest of
the Act to RCRA permits, which cannot be true because at least
three other sections of the Act apply to RCRA permits, namely
Section 39(i) which requires the Agency to “evaluate the
prospective operator’s prior experience in waste management
operations” before issuing any RCRA permit; Section 39(1), which
precludes the Agency from issuing construction or operation
permits of any kind within the boundaries of a setback zone where
prohibited; and Section 39(a), which applies to all permits in
providing “When the Board has by regulation required a permit for
the construction, installation or operation of any type of
facility, equipment, vehicle, vessel or aircraft, the applicant
shall apply to the Agency for such a permit
..
Marathon argues that there are two unambiguous time limits
in Section 39(a) for all Agency permits, with no exceptions. The
relevant language is as follows:
If there is no final action by the Agency
within 90 days after the filing of the
application for permit, the applicant may deem
the permit issued; except that this time
period shall be extended to 180 days when (1)
notice and opportunity for public hearing are
required by State or federal law or
regulation, or (2) the application which was
filed is for any permit to develop a landfill
subject to issuance pursuant to this
subsection.
101—261
—4—
In further support, Marathon quotes from the Senate debates
on June
22,
1979 concerning H.B. 1060, which extended the
Agency’s time limit to 180 days for permits with public notice
and hearing requirements (Marathon Res. Br. p. 3—5) and which
clearly indicate that the legislators were addressing the federal
public hearing requirements of the Clean Air Act and the Resource
Conservation and Recovery Act. H. B. 1060 became P. A. 81—369,
eff. January 1, 1980.
Marathon also addresses the reason for the “exclusively”
phrase in Sections 39(b), (d) and (e) by quoting from the House
debates of June 5, 1973 concerning H. B. 1585, where this phrase
was first used in reference to NPDES permits. (Marathon Res. Br.
p. 6,7). The debates clearly indicate that the intent was to
establish a single permit requirement, rather than separate State
and federal permits.
Finally, Marathon argues that the legislature knew how to
set time limits, since it did so for Board decisions regarding
permit appeals in Section 40(a)(3).
Board Discussion
The Board first notes that the Section 40(a)(3) language
(P.A. 83—431 eff. September 17, 1983) did not eliminate decision
limits but rather eliminated applicability of the “deemed issued”
language and provided instead that the petitioner was entitled to
a mandamus order from the Appellate Court.
Marathon’s arguments essentially rest upon the need to
examine the Act as a whole, including legislative history, in
determining the applicability of the 180 day default provisions
in Section 39(a) to a RCRA—Part B permit. Marathon, however,
only selectivnly
exa~ines th~ leg islailve
history and poiLiou~ 03
the Act related to the RCRA permit system.
Let us accept that the legislature, starting in 1973, used
the “exclusive” language to avoid a dual permit system and that
in 1979 it wished to extend the decision limits to 180 days
because of, in part, the Resource Conservation and Recovery Act
notice and hearing requirements.
Marathon ignores a series of subsequent legislative actions
that the Board believes clearly preclude the applicability of the
default provisions in Section 39(a).
The first wave of USEPA regulations implementing the
Resource Conservation and Recovery Act were not published in the
Federal Register until May 19, 1980, which was after the June
1979 legislative debates and after H.B. 1060 become law (see 40
CFR 260—265, 45 Fed. Reg. 33073 et. seq., May 19, 1980). The
legislature, in extending the time limit for default, could
hardly have been at that time addressing the role of the default
provisions itself in the overall federal regulatory scheme,
because none existed.
101—262
—5—
However, in 1981, the legislature adopted a series of
directives and mandates that made quite clear its intent that
Illinois adopt a hazardous waste management program equivalent to
the federal programs.
Included in the provisions of P.A. 82—380, eff. September 3,
1981, were: Section 20(a)(4—9) and (b) which explicitly
articulates that the legislature intends that the State adopt a
hazardous waste management program no less stringent or in
conflict with federal law, secure federal authorization and
delegating to the Board the responsibility to adopt detailed
regulations as needed to secure such authorization; Section
22.4(a) and (b) which mandates the Board to adopt regulations
“identical in substance” to federal regulations on an accelerated
timetable; and Section 39(d) and (e), which contains the
“exclusive” language for RCRA and UIC permits.
P.A. 82—380 also first defined, in what is now Section 3.29,
what was a RCRA permit.
“RCRA PERMIT” means a permit issued by the
Agency pursuant to authorization received by
the Agency from the United States
Environmental Protection Agency under Subtitle
C of the Resource Conservation and Recovery
Act of 1976. (P.L. 94—580) (RCRA) and which
meets the requirements of Section 3005 of RCRA
and of this Act.
Other subsequent amendments continued this pattern. (See P.
A. 83—1072 eff. July 1, 1986 and 85—861 creating Section 22.4(e),
(now 22.4(d) regarding other “identical in substance” provisions
related to the RCRA program.)
Section 40(a)(3), concerning the removal of the Board’s
RCRA, QIC and NPDES default provisions, occurred in P.A. 83—431,
eff. September 17, 1983. As noted by Marathon, an appellate
court had construed the Board’s Section 40(a)(2) default
provisions as applicable in an appeal involving an NPDES
permit. Section 40 at that time did not differentiate between
the appeal of RCRA, UIC and NPDES permits and other permits. As
noted above, the legislature adopted Section 40(a)(3) to cure the
default problem at the Board level. Remedying this provision for
the Board can hardly be construed at this juncture as affirming
that the legislature intended to have an Agency default provision
apply to RCRA permits. It makes no sense to argue that it took
no action to address an Agency default “problem” because it
intended to preserve the problem at that level. The legislature
had already expressed its intent otherwise and was simply
clarifying its intent as applied to the Board in light of a
contrary court decision.
101—2 63
—6—
The Board has implemented on an ongoing basis its “identical
in substance” mandate. The regulations routinely supersede
existing state requirements that are less stringent than or in
conflict with federal requirements. There is nothing in the
federal regulations allowing permits to be “deemed issued” and
there consequently is no such default provision in the Board’s
regulations. (see R84—9, Jan. 1985). The Board’s regulations
provide that only the Agency, in lieu of the USEPA Administrator,
makes permit determinations (see 35 Iii. Adm. Code 705.201
—
705.212). These regulations comport with the legislature’s
“identical in substance” mandate, the mandate not to have a
program less stringent than or in conflict with federal law, and
the statutory authorization to the Agency to issue RCRA permits
exclusively pursuant to Sec. 39(d), thus allowing the
discontinuance of the State hazardous waste permit program once
authorization was received.
Prior to the Agency’s submittal of the State’s RCRA
authorization package, the Agency noticed the package for public
hearing, made it available for public inspection at a number of
locations, held a public hearing on June 12, 1985, and received
public comments until July 19, 1985 (see “Notice of Public
Hearing on Intent to Apply for Final Authorization under the
Resource Conservation and Recovery Act”, first sheet of the RCRA
authorization package.)
It should be noted that the authorization package includes a
June 4, 1985 certification by the Illinois Attorney General as to
the adequacy of the state’s statutes and regulations and a
lengthy statement analyzing the regulations and the statutory
authority, as required by USEPA for authorization. The statement
affirms the equivalency of the Board’s regulations, including the
RCRP. permit process.
After the USEPA held another
public hearing
and comment
period, and received further Agency and Attorney General
clarifications, Illinois received final authorization, including
authorization to issue RCRA permits, effective January 31, 1986
(Fed. Reg. Vol. 51, No. 20, January 30, 1986).
The Board agrees that, prior to authorization to issue RCRA
permits, the hazardous waste permits issued by the State were
subject to the Section 39(a) default provisions. Once
authorization was received, however, hazardous waste permits were
to be issued by the State “exclusively” as RCRA permits, as
authorized under Section 39(d) (see also Section 2l(f)(l), which
requires a RCRA permit “issued by the Agency under subsection (~8)
of Section 39 of this Act”. (underlining added)). Once this
occurred, the incompatible default provisions no longer applied.
Marathon also seems to suggest that, if the “exclusive to
this section” language in Section 39(d) were read to exclude the
default provisions in Section 39(a) as the Agency asserts, then
101—2 64
—7—
no other permit provisions in Section 39(a) could be
applicable. We do not agree. The Board in its earlier
“identical in substance” implementation of the federal “interim
status” regulations (prior to authority to issue RCRA permits),
had construed the Act as preserving the applicability of all
earlier adopted rules that were more stringent than or not in
conflict with the federal mandate. Preserving these provisions
without instituting a new rulemaking pursuant to Section 22.4(b)
was appealed to the appellate court which upheld the Board on
appeal. Implicit in this decision was the authority to preserve
other permit requirements in the Act, as long as they continue to
be compatible with the federal program. (Commonwealth Edison et
al. v IPCB, 127 Ill. App. 3d 446; 468 N.E. 2d 1339 (Third Dist.
1984).)
Finally, Marathon’s argument that the “exclusively under
this subsection” language in Section 39(d) is undermined by other
provisions addressing RCRA permits, such as those in Section
39(i) and (1), is without merit. Section 39(d) itself provides,
in the second paragraph in pertinent part, that “all RCRA permits
shall contain those terms and conditions
...
which may be
required to accomplish the purposes of this Act. The Agency may
include among such conditions, standards and other requirements
established under this Act
...“
It is clear, if one truly looks at the Act as a whole, that
Section 39(d) cannot be construed as preserving the default
provisions of Section 39(a) for RCRA permits. The Board
accordingly finds that the default provisions in the last
paragraph of Section 39(a) do not apply to RCRA permits.
Even if Marathon were correct that a permit issued by
operation of law, such a holding does not answer the question of
what conditions apply. In a similar case involving a Board
default, Illinois courts have held that a default permit only
insulates the permittee from charges of operating without a
permit; it does not grant conditions requested in the
application:
The result of inaction by the Board during the
90 days period is that the “petitioner may
deem the permit issued.” (Ill. Rev. Stat.
1981, ch. 111 1/2, par. 1040(a).) Our reading
of that language in context of the rest of the
Act leads us to conclude, as indeed IPC has
argued, that a permit issued by operation of
law under section 40(a) does not issue with or
without any particular conditions or in the
manner requested by the aggrieved party as the
Board has argued. A permit issued by opera-
tion of law after initial denial could not
contain conditions. In fact, a determination
of the specific content of permit conditions
101—2 65
—8—
was not sought by IPC nor made by the trial
court. Instead, the effect of inaction by the
Board for 90 days is that the party seeking
review has a permit and is protected from
charges of operation without a permit, a
violation of both State and Federal law.
(Ill. Rev. Stat. 1981, ch. 111 1/2, par.
1012(b), (f); 33 U.S.C. secs. 1311, 1342
(Supp. 1978).) It does not insulate the per—
mittee from compliance with all Federal and
State substantive standards and limitations.
This result does not make the review super-
fluous as the Board
suggests, for legally
unjustified or arbitrary conditions in the
permit are no longer binding on IPC. In the
case of a permit review challenging condi-
tions, if the permit issues by operation of
law, the permit issues without the challenged
conditions.
If the conditions were properly imposed
under the Act and regulations, IPC concedes
that they would remain valid and enforce-
able. In summary, IPC is vulnerable to any
charge for a legal violation except that of
operating without a permit, thus there can be
no conflict with Federal law. As IPC has so
aptly stated, the 90—day requirement of
section 40(a) evinces legislative concern with
bureaucratic delay. It was not the intent of
the General Assembly to create a “license to
pollute.”
IllinoIs
Power Co. v. PCP, 112 Ill
.App,
3d 457,
(5th Dist., 1983), at 461—462.
Thus, the question of whether semi—annual or quarterly monitoring
is appropriate and the question of whether the outdoor container
storage area must close now, remain unanswered by any holding
that a permit issued by default. At most, Marathon gained
insulation from a charge of operating without a permit from the
time the permit should have issued, until the time the Agency
actually issued the permit. If the permit conditions are valid
they will be enforceable against Marathon from the point of
permit issuance forward, despite the fact that the permit might
have issued late. Even if Marathon secured a late filed permit,
it did not gain a “license to pollute.”
101—266
—9—
Monitoring and Reporting Conditions
Marathon has eight existing monitoring wells and has
proposed to add or replace five wells to be screened in the
Mermom Sandstone Member of the Mattoon Formation. These will be
utilized for the RCRA detection monitoring program for the
facility’s surface impoundments and land treatment facility. The
detection monitoring program will therefore consist of eleven
downgradient wells and two upgradient wells. Each well will be
monitored for approximately 40 parameters from the following
categories: volatile organic compounds, phenols, polynuclear
aromatic hydrocarbons, metals, and water quality parameters (Adm.
Rec., pp. 3748—3758). Each of the thirteen wells will be sampled
and analyzed for the 40 or so parameters on a quarterly basis for
the first year to establish initial groundwater quality.
Marathon raises no objections to these testing requirements.
After the initial groundwater quality is established, the
final RCRA permit requires Marathon to sample each of the
thirteen wells for each of the 40 or so parameters on a quarterly
basis. Marathon does not object to the sampling of each of the
thirteen wells, nor to the analyses of each of the 40 or so
parameters. Marathon does object to the fact that quarterly
testing should be done. Marathon asserts that semi—annual
testing is the appropriate frequency.
Marathon has also challenged the reporting requirements of
the detection monitoring program to the extent that it requires
quarterly reporting of the results of the testing program.
Marathon has not posed any specific objection to the reporting
requirement. Marathon restates its position that after initial
groundwater quality values are determined, testing and reporting
should be done on a semi-annual basis rather than a quarterly
basis.
In addition to the previous detection monitoring program,
there is a separate shallow zone observation monitoring
program. This program involves seven existing monitoring wells
and six additional proposed wells, all of which will be screened
in the Radnor Till. The purpose of these wells is to provide
early warning of releases from the surface impoundments and land
treatment facility. All of these thirteen wells are at the same
location as previously described detection monitoring wells. R.
27. Samples from these wells are to be analyzed for the same 40
or so parameters as previously described for the detection
monitoring program.
The final RCRA permit requires that each of the thirteen
shallow wells be monitored for each of the 40 or so parameters on
a quarterly basis for one year to establish initial groundwater
quality values. After the initial values are established, the
final permit requires all thirteen shallow wells to be tested on
a quarterly basis during the full term of the permit for each of
101—267
—10—
the 40 or so parameters. Sample results are to be reported
quarterly. Marathon has not objected to any aspect of the
testing or reporting for the shallow zone observation monitoring
program.
The specific permit monitoring condition Marathon appeals is
Condition V C—2 (Mm. Rec., p. 3752):
After initial groundwater quality has been
established, each of the monitoring wells
listed in Condition B.l above shall be sampled
quarterly in accordance with the Schedule in
Condition H.3 below and the samples analyzed
for the constituents listed in Condition C.1
above.
The specific permit reporting condition Marathon appeals is
Condition V H—3 (Adm. Rec., p. 3756):
The Permittee shall submit the analytical
results and measurements required by
Conditions E, G.2 and G.3 and the results of
the statistical analyses required by Condition
G.4 to the address listed in Condition B.3 in
accordance with the following schedule:
Quarterly Sampling Schedule
Samples to be Collected
During the Preceding
Results Due to
Months of
the Agency by
danuary
—
February
April 15
April
—
May
August 15
August
October 15
October
—
November
January 15
Groundwater monitoring data shall be reported
on the chemical analysis forms included as
Attachment N to this permit.
These two conditions represent the groundwater monitoring
conflict.
The Board must now determine whether the Agency’s imposition
of the contested conditions was in error. EPA
V.
PCB, 118 Ill.
App. 3d 772, 777, 455N.E.2d 188, 777 (1st Dist. 1983).
The sole question before the Board in a
review of the Agency’s denial of a permit is
whether the petitioner can prove that its
permit application as submitted to the Agency
101—2 68
—11—
establishes that the facility will not cause a
violation of the Act. If the Agency has
granted the permit with conditions to which
the petitioner objects, the petitioner must
prove that the conditions are not necessary to
accomplish the purposes of the Act and
therefore were imposed unreasonably.
Id., 118 Ill. App. 3d at 780; 455 N.E.2d at
194 (citation and emphasis omitted).
Alternatively stated, Marathon had to establish that its permit
request “would not result in any future violation of the Act and
the modifications, therefore, were arbitrary and unnecessary.”
Browning—Ferris Industries of Illinois, Inc. v. PCB, 179 Ill.
App. 3d 598, 603, 534 N.E.2d 616, 620 (2d Dist. 1989).
Therefore, the ultimate issue in this proceeding is whether the
contested conditions are “not necessary to accomplish the
purposes of the Act.” EPA v. PCB, 118 Ill. App. 3d at 780, 455
N.E.2d at 194.
Marathon advances two arguments to support its opposition to
quarterly detection monitoring. First, Marathon asserts that the
Agency has imposed quarterly monitoring as a consequence of an
unwritten policy which has never been legally adopted. Marathon
asserts that imposition of this informal policy goes beyond the
requirements of substantive environmental law in Illinois.
Further, Marathon asserts that imposition of a statewide informal
policy of quarterly monitoring denies Marathon the opportunity to
notice and comment which due process requires.
Second, Marathon asserts that there is no valid technical
basis to support quarterly detection monitoring at this
particular facility. At hearing, Marathon presented three expert
witnesses in support of the position that semi—annual detection
monitoring is adequate to promptly detect changes in chemical
composition of the groundwater that are indicative of
contamination from the regulated units. Marathon asserts that
the site—specific conclusions of its experts are not contested by
the Agency.
The Agency’s position on quarterly monitoring is more
difficult to ascertain. This is primarily because the Agency did
not choose to file a post—hearing brief which would support its
monitoring conditions. Neither did the Agency request the
opportunity to provide closing statements at hearing which would
outline the Agency’s theory. The Board is, therefore, left to
generally review the hearing transcript and briefly scan the
4,930-page Administrative Record before the Agency. The Board
does not believe it is obligated to go to great lengths to “make
the Agency’s case.”
101—2 69
—12—
At hearing, the Agency presented three witnesses. They
described the manner in which the Agency imposes groundwater
monitoring at Illinois facilities. They also described the
benefits that quarterly monitoring would provide over semi—annual
monitoring. Lastly, they described facility conditions and site
history. The Board must evaluate the parties’ position in light
of substantive regulatory law on monitoring.
The Board has adopted regulations that address hazardous
waste monitoring programs at 35 Ill. Adm. Code 724.190 to
724.201. The only regulatory requirement which specific~ily
addresses the frequency of monitoring at issue here is 35 Ill.
Adm. Code 724.198(d):
Section 724.198 Detection Monitoring Program
An owner or operator required to establish a
detection monitoring program under this
Subpart must, at a minimum, discharge the
following responsibilities:
***
d) The owner or operator must determine
groundwater quality at each monitoring
well at the compliance point at least
semi—annually during the active life of a
regulated unit (including the closure
period) and the post-closure care
period. The owner or operator must
express the groundwater quality at each
monitoring well in a form necessary for
the determination of statistically
significant increases under Section
724.197(h).
This regulatory provision requires the Agency to impose
semi—annual detection monitoring at each facility in Illinois,
without reference to the site—specific conditions. It also
allows the Agency to impose more frequent monitoring where
necessary to detect contaminants that may be escaping from the
particular regulated unit, i.e., a decision premised on site—
specific conditions. Since the monitoring frequency requested by
Marathon is semi-annual, it obviously complies with regulatory
minimums. The Board must therefore evaluate why the Agency
imposed quarterly monitoring and whether it is supported by site—
specific conditions.
At hearing, the Agency permit writer, Mr. Carson, explained
that quarterly monitoring was placed in this permit as a result
of Agency policy:
101—270
—13—
Q. BY MR. WRIGHT, ATTORNEY FOR MARATHON
Have you ever drafted any policy relating to
the frequency of monitoring?
A. BY MR. CARSON No.
Q.
Do you have such a policy?
A. Yes. It’s not a written policy that I’m
aware of, but that is the IEPA policy.
Q.
The policy is for quarterly monitoring?
A. Yes.
Q.
And was that policy applied here?
A. Yes.
R. 153—154.
Later, the manager of the permit section of the Division of Land
Pollution Control, Mr. Eastep, testified. He testified that
quarterly monitoring was applied at all facilities to detect
seasonal variations:
Q.
BY MR. CARLSON, ATTORNEY FOR THE
AGENCY And do you know how many of the
facilities permitted by your section for solid
waste disposal are required to monitor the
groundwater on a quarterly basis?
A. BY MR. EASTEP
I believe there are
approximately 250 non—hazardous facilities and
approximately 50 hazardous waste facilities.
Q. And how far back does the practice of
requiring such quarterly monitoring of ground-
water in permits extends?
A. To the best of my knowledge it goes back
at least to 1973 when what was referred to
then as Chapter 7 of the Pollution Control
Board rules was promulgated.
Q. For what
technical reasons has quarterly
monitoring been required?
A. Generally it’s been due to seasonal
variations.
Q.
And what do you mean by seasonal
variations?
101—27 1
—14—
A. Well, depending on the year, you can have
groundwater fluctuations in relation to
rainfall or precipitation or potentially you
could have it in some areas due to the levels
of streams that they
——
that they charge
because of things like bank storage. That’s
all.
R. 161—162
***
Q. BY MR. WRIGHT, ATTORNEY FOR MARATHON
Mr. Eastep, your policy for quarterly
monitoring is applied across the board, is it
not?
A. BY MR. EASTEP That’s correct.
Q. You do not make any exceptions?
A. To the best of my knowledge, all the
permitted facilities have been required to do
quarterly monitoring.
Q. And in applying this policy, it is not
necessary, I take it, for you to examine site—
specific considerations?
A. Well, site—specific considerations would
be involved if after somebody had a history of
monitoring if we wanted to vary that. But
we’ve reserved the right to make more frequent
monitoring, and I suppose
we
would be willing
to entertain a request from an applicant to
make less frequent monitoring.
Q.
But you’ve never granted less frequent?
A. I don’t recall any.
Q. Do you know
--
we now know what the
Agency policy is. What is the Board’s
—-
Pollution Control Board’s policy as expressed
in the regulations, if you know?
A. Their regulations for monitoring
——
in
general or just hazardous waste facilities?
Q. Hazardous waste facilities.
A. The minimum requirement is semi-annually.
101—272
—15—
Q. And just so I understand correctly, the
Board’s reg says that in the case of a Part B
permit, the applicant shall monitor at least
semi—annually?
A. That’s my understanding.
Q. So that the Agency has adopted a policy
which is different than and is more strict
than the Board’s?
A. Yes.
R. 173—174.
At hearing, the Agency did provide testimony regarding site
conditions and facility history. However, there was no testimony
that these particular site conditions compelled a requirement for
quarterly monitoring. Marathon did provide testimony that site
conditions had been adequately characterized, specifically as it
pertained to seasonal variation, so as to support semi—annual
monitoring. Mr. French, Marathon’s consultant who prepared the
hydrogeological assessment, stated:
Throughout the seven years of monitoring, the
data have provided a consistent picture of
flow direction. Within the sandstone also we
have plotted the fluctuations of water levels
through time. We’ve also observed from those
plots a consistent picture of highest water
levels within the sandstone occurring
generally in the late winter to early spring
period. The lowest water levels typically
occur late summer, early fall, and that
picture is consistent from well to well and
from year to year such that we see pretty
much a semi-annual variation in water level
fluctuations.
R. 25.
***
It’s my professional judgment that semi-annual
monitoring would be adequate to detect any
plume of contamination that could possibly
enter the groundwater system. I base that on
our observations of the seasonal nature of
groundwater fluctuations being semi—annual. I
base that on the location and distribution of
the well system that’s
in
place. I base that
on the consideration of the groundwater flow
rates of, as I mentioned earlier, anywhere
between 8 to 12 feet per year such that semi-
10
1—273
—16—
annual would in theory provide a picture of
groundwater quality every four to six feet in
the subsurface as groundwater flow occurs, and
again to my professional judgment based on
this site’s characteristics that would be a
more than adequate program to detect any
plume.
R. 32.
Marathon’s two other technical witnesses agreed.
Marathon has demonstrated that the requested semi—annual
monitoring and reporting meets regulatory minimums and that site—
specific conditions do not require more frequent monitoring
and
reporting. The Agency did not refute this prima facie case.
Thus, Marathon has demonstrated that the conditions are not
necessary to meet the purposes of the Act and that the Agency’s
imposition of quarterly monitoring and reporting was unnecessary.
It is clear that the Agency did not premise its decision
based on conditions specific to the Marathon facility. Board
regulations provide minimum monitoring frequency. The Agency may
not make those statewide regulations more stringent by
application of an informal policy. The Board will remand this
matter to the Agency with directions to reissue the permit
utilizing a semi—annual frequency in the contested detection
monitoring conditions.
Container Storage Pad Area
Marathon also appeals the requirement that it close a
container storage pad area. This unenclosed pad area is a 30’ x
30’ pad which is underlain by gravel and a synthetic liner.
There are steel pans on the pad into which drums of waste are
placed on pallets. The container storage pad area is for
the
storage of drums of wastes which are not applied or treated a~
the land treatment facility. These are such wastes as spent.
catalysts and other commercial chemicals, spent and unspen~ hat
are used in the refining process. The container storage a:ua is
used to temporarily accumulate these materials until a suf3icient
quantity of drums is accumulated for shipment to off—site
disposal (R. 20, 75, 141).
Marathon’s consultant recommended the construction of an
enclosed building for the storage of drums. This would allow
separate storage for different kinds of drums and prevent run~on
and precipitation frofri accumulating. The building was buit,~ and
the pad area is directly in front of the entrance to the
building. The roadway access to the pad is now the roadwa:~
access to the building (R. 75—77).
The pad is currently used to load and unload or to receive
drums from internal generating sources within the refinery,
101—274
—17—
before being placed in the building. Since the building is not
designed to have a truck pull into it, the pad is also used
prior to off-site shipment by truck. The current permit allows
drums to remain on the pad for up to 24 hours. The pad is in
current use and has been operated for its use ever since it was
build (R. 75—78, 98—109, 141—149, 154—155).
The contested requirement, Special Condition 4, states as
follows:
Closure of Previous Container Storage Area
Within 180 days after the effective date of
this permit, the Permittee shall submit an
Interim Status (35 IAC, Part 725) closure plan
for closure of the previous outdoor container
storage area which is currently being used as
a drum loading/unloading area. This closure
plan shall include soil sampling of low points
surrounding the loading/unloading area and
shall be developed in accordance with IEPA’s
“Instructions
for the Preparation of Closure
Plans for Interim Status RCRA Hazardous Waste
Facilities”, February 1988.
Upon final
closure of the container storage area, soil
sampling shall be conducted beneath the
loading/unloading area.
(Adm. Rec., p. 003800)
The controversy was originally raised by Marathon in their
comments on the draft permit:
The present container storage area consists of
a small drum storage building and an ancillary
30’ x 30’ loading/unloading area located
immediately north of the building. The
loading/unloading area had been utilized
during the early years of interim status as
the primary container storage area where drums
were stored in open steel pans on pallets.
IEPA is requiring “interim status” closure of
the loading/unloading area as a special
condition in the draft permit, even though
Marathon has proposed to sample, analyze, and
decontaminate the area when the entire unit is
finally closed at the end of its operating
life.
Marathon believes that an interim status
closure of the loading/unloading area is
101—27 5
—18—
neither appropriate nor warranted.
This
approach is also inconsistent with the
determination by IEPA and EPA that no closure
of the interim status impoundments will be
required prior to retrofit with double liners
and leachate collection systems.
If IEPA still believes that closure is
required, the closure should not include
activities which will tear up the pad. If
closure is required, Marathon therefore
believes that decontamination criteria should
be based on sampling and analysis of surface
soils around the pad to detect contaminated
runoff.
(Mm. Rec., p. 004111)
The Agency formally replied to the comment:
Response:
35 IAC 725.2l2(d)(2) requires
commencement of closure activities for a unit
within 30 days after the last receipt of
hazardous waste. 35 IAC 725.213(a) requires
the treatment, removal or disposal of all
hazardous wastes in accordance with the
approved closure plan within 90 days after the
final receipt of hazardous waste. Although
the previously used container storage area is
currently used as a loading/unloading area for
the new storage area, it is no longer used for
the storage of waste and does not meet the
requirements for storage of liquid container-
ized wastes under Part B standards. There-
fore, the unit must be closed. The Agency has
revised Condition 5 of Attachment D to
indicate that this interim status closure will
involve soil sampling of low points at the
perimeter of the loading/unloading of the
pad. Upon final closure of the container
storage area, soil sampling shall be conducted
beneath the loading/unloading pad, and
if
necessary, around the pad.
(Adm. Rec., p. 004406)
The parties agree that, since the pad area had interir
status, the relevant regulatory guidance is 35 Ill.
Adm. Code
101—27 6
—19--
725.212(d)(2) and 725.213(a). They provide as follows:
Section 725.212 Closure Plan; Amendment of
Plan
***
d) Notification of partial closure and final
closure.
***
2) The date when the owner or operator
“expects to begin closure” must be
either within
30 days after the
date on which
any hazardous waste
management unit
receives the known
final volume of hazardous wastes or,
if there is a reasonable possibility
that the hazardous waste management
unit will receive additional hazar-
dous wastes, no later than one year
after the date on which the unit
received the most recent volume of
hazardous waste
....
(emphasis
added)
Section 725.213 Closure; Time Allowed for
Closure
a) Within 90 days after receiving the final
volume of hazardous wastes at a hazardous
waste management unit or facility,
or 90
days after approval of the closure plan,
whichever is
later, the owner or operator
shall treat, remove from the unit or
facility or dispose of on—site, all
hazardous wastes in accordance with the
approved closure plan
....
(emphasis
added)
To determine whether closure
of the pad area is required,
the Board must determine whether the pad area has received the
“final volume of hazardous waste.”
Marathon asserts that the pad has not received the final
volume of wastes because: (1) the pad is still “receiving
wastes” as that phrase is used in 35 Ill. Adm. Code 725.213(a)
just as it always did; (2) the pad is an adjunct and part of an
operating waste management unit consisting of the building, the
pad and the secondary containment equipment; (3) Marathon has
submitted a closure plan for the entire unit, including the pad,
to be implemented
at the end of the life of the unit; (4) the
101—277
—20—
closure of the pad located in front of the door of the building
would disrupt the use of the building; (5) if the existing pad
were to be closed a new pad would have to be put in its place for
the same purpose; and (6) the pad is still used as a storage area
although the Agency has limited the storage to 24 hour periods.
(Marathon Final Brief, pp. 17—18.)
The Agency’s position is more difficult to ascertain,
because it did not file a final brief. The Agency’s position
appears to be that the pad area, “is no longer used for the
storage of waste,” (Adm. Rec., p. 004406), because wastes are not
stored there for more than 90 days (R. 99—100).
The Board would agree with the Agency that any generator of
hazardous waste may only accumulate such wastes for 90 days, and
that accumulation beyond that limit will subject the generator to
RCRA storage requirements. 35 Ill. Adm. Code 722.134(a) and
(b). That is not the same, however, as defining storage to
require accumulation for over 90 days. In fact, “storage” is
defined in Board regulations, and
it contains no time limit:
“Storage” means the holding of hazardous waste
for a temporary period, at the end of which
the hazardous waste is treated, disposed or
stored elsewhere.
35 Ill. Mm. Code 720.110
Here, it is undisputed that the container pad area continues to
receive, “Hazardous waste for a temporary period, at the end of
which the hazardous waste is treated, disposed or stored
elsewhere.” Thus, the container pad area has not received the
final volume of hazardous wastes, and closure is not mandated by
Section 725.2l2(d)(2) or 725.213(a).
No reason for closure has been advanced except the “final
volume” of waste. The Board must conclude that Marathon has
demonstrated that the closure condition is not necessary to
accomplish the purposes of the Act and therefore it was imposed
unreasonably. Accordingly, the Board will remand the matter to
the Agency with directions to strike the closure condition and to
decide what conditions, if any, are necessary for continued
operation of the pad area.
The Board must note that closure of the storage pad area was
required in the Agency draft permit. In public comments,
Marathon requested that the closure requirement be stricken or
modified. In the final permit, the Agency modified the
requirement as requested by Marathon.
The Board also notes that today’s Opinion in no way
addresses what conditions, if any, would be necessary for
10 1—278
—21—
continued operation of the container pad area.
In
summary,
the Board reverses the Agency decision to
require quarterly detection monitoring and reporting and reverses
the Agency decision to require closure of the container pad
area. This matter is remanded to the Agency with directions to
reissue a permit without these conditions.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Illinois Environmental Protection Agency impàsition of
Condition V C—2, Condition V H-3, and Special Condition 4 in the
permit issued to Marathon Petroleum Company is hereby reversed.
This matter is remanded with directions.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, ch. 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 certify that the above. Opinion and Order was
adopted on the ~7(/ day of
_____
,
1989, by a
vata of
.
~~
2
Dorothy M. G,dnn, Clerk
Illinois Pollution Control Board
101— 279
