ILLINOIS POLLUTION CONTROL BOARD
March
23,
1989
MARLEY—INGRID
(USA),
INC.,
)
Petitioner,
v.
)
PCB 88—17
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
ORDER OF THE BOARD (by B. Forcade):
This matter
is before the Board on the February
21,
1989
motion for reconsideration filed by Marley—Ingrid (USA),
Inc.
(“Marley”).
That motion attacks
the January 19,
1989 Opinion and
Order
of
the Board, which vacated
the December
11,
1987 closure
permit
issued by the Illinois Environmental Protection T~gency
(“Agency”)
to Marley.
The Agency responded
to Marley’s motion
on
March
6,
1989.
Marley filed
a Reply on March
7,1989.
Motion For Reconsideration
Marley’s position
in its motion for reconsideration
is that
the Board incorrectly applied
the law generally
to this case,
and
specifically
that
the Board incorrectly applied
the holding in
Brownjnc~—FerrjsIndustries
of
Illinois,
Inc.
v.
Environmental
Protection Agency, PCB 84—136
(May
5,
1988),
as well
as the
December
1,
1987 federal regulatory adoption
(52
FR
45788)
to the
facts
of this case.
Marley’s argument
is tardy and inappropriate.
The only
reason the Board received any briefs
on the law from Marley
is
because by Order
of May 19,
1988,
the Board demanded such
briefs.
In addition,
in that same Order
the Board specifically
directed
the parties’ attention to the recently decided case of
Browning—Ferris,
the case
in which
the December
1,
1987
federal
regulatory adoption was discussed ~t length.
On September
30,
1988, Marley filed
a
24 page Brief, on November
7,
1988, Marley
filed
a 12 page Reply Brief.
Neither document mentions the
Browning—Ferris
case or
the December
1,
1987,
federal regulatory
adoption even once.
Neither document
even attempts
to explain
why
the regulatory prpvisions
of
35
Ill.
Adm. Code
725
should be
applied to the decision under
review.
For
Marley to complain at
this
late date
that the Board
has misapplied
the law generally,
arid those two precedents
in particular,
smacks of complaining
about a self—inflicted wound.
97—171
—2—
Despite any lack of propriety
in the motion,
it does point
out a
legal error
in the Board’s Opinion.
That error should
be
corrected;
therefore,
the Board grants
reconsideration.
The
January 19,
1989 Opinion and Order vacated
the permit
at
issue
because,
in the Board’s opinion, the permit decision was made
under the wrong regulatory standards.
The Board held that the 40 CFR 264,
Subpart
F groundwater
monitoring requirements applied directly
to all interim status
facility closures by virtue
of December
1,
1987 HSWA—prompted
amendments
to the federal RCRA regulations.
Opinion and Order
of
Jan.
19,
1989 at
6—7.
This holding was clearly
in error,
to the
extent
it
includes closures by removal.
The Board must therefore
modify the holding
in the January 19,
1989, Opinion
as
follows:
Where
a
facility
which
is
validly
subject
to
interim
status
under
35
Ill.
Adm.
Code
725
(i.e.,
has
substantially
obtained
and
maintained
interim
status)
seeks
a
closure
permit
to
close
by
removal,
that
facility
is
not required as
a matter
of law to comply with
the
Part
724
groundwater
monitoring
requirements.
However,
such
facilities
must
demonstrate
at
some
time
in
the
future
that
they have met the closure
by removal standards
of
Part
724
when
the
facility
seeks
a
determination
of
equivalency
under
35
Ill.
Adin.
Code
703.160
(or
federal
40
CFR
27O.1(c)(6)).
35
Ill.
Adm.
Code 703.159; see
40 CFR 270.1(c).
That modification
to the Board’s holding does not,
however,
dispose
of
this
case.
The Board must still determine what
regulatory standard applies
to the decision under review, and
whether that decision was correctly made.
Throughout
the six
briefs
filed so
far
in this proceeding,
the parties have con-
sistently stated
that the interim status closure provisions
of
Section
725.328 apply.
However, those
six briefs do not once
explain why that
is
true.
The Board must therefore conduct
its
own review.
Applicable Regulatory Law
Illinois and federal law both prohibit hazardous waste
treatment,
storage, or
disposal without
a RCRA permit.
Ill.
Rev.
Stat.
ch.
111 1/2,
par.
l021(f)(l)
(1989);
42 USC 6925(a)
(1988);
35
Ill.
Adm. Code 703.121(a)
(1987);
40 CFR 271.1(b)
(1988).
An
owner
or operator
of
a hazardous waste treatment, storage,
or
disposal facility can conduct hazardous waste activities by
securing
a new permit under Illinois Part
724 and/or federal Part
264 or,
in the case
of certain existing
facilities, by securing
and maintaining “interim status” consistent with
the interim
97—172
—3—
status facility standards of Part 725 and/or Part 265.
35 Ill.
Adm. Code 703.156; 40 CFR 270.71(b).
Those
interim status
standards became effective November 19,
1980,
45
Fed. Reg.
33154
(May 19,
1980),
and they imposed numerous substantive require-
ments on those interim status facilities
to which they apply.
Facilities with interim status can continue
to operate until
final disposition of their permit application under Illinois Part
724 and/or federal Part 264.
Three requirements applied to
qualify
a facility for
interim status:
1.
The facility must have been
in existence
on November
19,
1980;
2.
The owner
or
operator must have notified
the
USEPA
of
its
hazardous
waste
activities
at
its
facilities
by
August
17, 1980;
and
3.
The owner
or operator must have submitted
Part A of
its RCRA permit application
for
the facility.
42
USC
6930(a);
40
CFR
270.1(b),
270.10(e)
&
270.70;
35
Ill.
Adm.
Code
703.150(a)
&
703.153(a);
see
45
Fed.
Reg.
33119
(May
19,
1980)
(USEPA
promulgation
of
regulations
identifying
hazardous wastes,
which
triggered
the notification requirement).
Thus, within the context
of today’s factual
scenario there
are two groups of relevant regulatory law.
The first regulatory
group governs new permits
for hazardous waste facilities.
New
permits may be
required for new or existing facilities.
These
regulations
are
found at
35 Ill. ~dm Code 724 under Illinois law
and
40 CFR
264 under
federal
law.
These regulations “apply
to
owners and operators
of all
facilities which treat,
store or
dispose
of hazardous waste...” Section 724.101
(b).
However,
“a
facility owner
or operator who has fully complied with
the
requirements
for interim status... must comply with the regula-
tions
specified
in 35
Ill.
Adm. Code 725
...“
Section 724.103
(a).
The second group of
regulations,
those governing interim
status facilities,
are found
at
35 Ill. Adm.
Code 725
in Illinois
law and 40 CFR 265
in federal
law.
They apply to owners and
operators
of
facilities,
“...who have fully complied with the
requirements for inteUim status under Section 3005
(e)
of the
Resource Conservation and Recovery ~ct (RCR~)...”35
Ill. Adm.
97—173
—4—
Code 725.101
(b).*
Thus,
to determine whether
the regulations
of
Part 725 apply,
one must determine whether
the facility secured
and maintained
interim status.
The federal regulations governing hazardous waste were
initially effective
in Illinois.
Subsequently
the State of
Illinois acquired authority to implement
the hazardous waste
program.
To the extent
it
is relevant,
this Order will cite both
the state regulatory provision
35
Ill.
Adm. Code
“XXX”
and the
federal provision
40 CFR “XXX”.
Effective dates are provided
where appropriate.
Within this regulatory scenario,
the Board
must determine whether Marley was entitled to secure
a
“closure”
decision under
the interim status provisions
of
35
Ill. Adm.
Code
725 or
40 CFP
265.
Under
the interim status facility standards,
the owner
or
operator
was
to
engage
in
various
site
management,
monitoring,
and recordkeeping requirements.
The facility owner or
operator
was
to assess and maintain records of
the volume and character
of
wastes placed
in the facility,
beginning
in November 1980.
35
Ill. Adm.
Code
725.
Subpart E
(effective May 17,
1982);
40 CFP
265,
Subpart
E.
Beginning
on that date,
the owner
or operator
was
to maintain on site
a copy
of current closure and post—
closure
care plans
for its facility.
35
111.
Adm.
Code 725.
Subpart C
(effective May 17,
1982);
40 CFR 265, Subpart
G.
On
November
19,
1981 the owner
or operator was to implement
a
groundwater monitoring plan and submit
an outline of
it
to
USEPA.
35
Ill.
Adm.
Code
725.
Subpart
F
(effective May 17,
1982);
40 CFR 265, Subpart
F;
see 45 Fed.
Reg.
33239—42
(May
19,
1980).
The interim status standards imposed various other general
and specific requirements
on surface impoundments.
35 Ill.
Adm.
Code
725.
Subpart B
(general facility standards,
including
*
Section
725.101
(b) also provides that the Part 725 standards
would apply to any facility
in existence on November
19,
1980,
which
failed
to secure interim status.
This provision would
allow facilities
that technically failed
to secure interim status
to continue operation
after November
19,
1980 where
their
continued operation would
be
in the public interest and EPA had
issued an Interim Status Compliance Letter (“ISCL”)
or
a
Compliance Order under Section
3008
of RCRA.
45 Fed.
Peg.
76632
(November
19,1980).
Continued
compliance with
the Part 725
standards was
a necessary prerequisite
to such
a determination,
“...EPA has announced
its intent
to exercise prosecutorial
discretion where appropriate
to allow continued operation of
existing facilities that did not qualify
for interim status
if
such facilities complied with the applicable EPA Part
265
regulations.”
48
Fed.
Reg.
52719 (November
22,
1983).
97—17 4
—5—
notice,
inspection, personnel training,
etc.),
Subpart D
(contingency planning), Subpart F (groundwater monitoring),
Subpart H (financial assurance)
& Subpart K (specific surface
impoundment requirements);
40 CFR 265, Subparts
B,
D,
F, H
& K.
The overall intent and objective of these provisions was
to
assure the management of hazardous wastes
in a manner that was
consistent with
the protection of human health and the
environment.
42 USC 6902(a)(4)
&
(b).
One obvious purpose
of
the waste characterization,
groundwater monitoring,
and record
keeping requirements was
to later assist
in facility closure.
See
35
Ill.
Adrn. Code 725.174(c)
& 725.194(b);
40 CFR 265.74(c)
&
265.94(b).
Under
the Hazardous
arid Solid Waste Amendments of 1984
(“HSWA”), Congress required owners and operators
of surface
impoundments to undertake certain actions
to maintain their
interim
status.
Interim
status
was
to
terminate
for
those
facilities
on
November
8,
1985
unless
they
took
two
specific
actions:
1.
They were
to
submit
a Part B RCRA permit
application
for a final RCRA permit;
and
2.
They
were
to
certify
their
compliance
with
the
interim
status
groundwater
monitoring
and
financial
assurance
requirements.
42
USC 6925(e)(3);
40
CFR 270.73(c);
35
Ill.
Adin. Code 703.157(c).
If the owner
or operator
of
a surface impoundment failed
to
submit
a Part B application and required certification by
November
8,
1985 which was acceptable
to USEPA,
the facility’s
interim status automatically terminated
as
of that date.
Vineland Chemical Co.
v.
EPA, 810 F.2d
402,
409
(3d
Cii-.
1987);
In
re Commonwealth Oil Refining Co.,
805 F.2d 1175,
1178—79
(5th
Cir.
1986); United States
v.
T
&
S Brass and Bronze Works,
Inc.,
681
F.
Supp.
314
(D.S.C.
1988); United States
v.
Vinelanc3
Chemical Co.,
692
F.
Supp.
314,
321
(D.S.C.
1988); United States
v.
Conservation Chemical Co.,
660
F. Supp.
1236,
1241
(N.D. md.
1987).
The Board will now examine the present record for indica-
tions whether Marley acquired and maintained
interim status for
its surface impoundment.
The Board will simultaneously examine
what
these
facts
indicate with regard
to whether Marley properly
complied with the interim status requirements
of Part 725.
Initially, with regard
to acquisition of interim status,
the
record indicates that the Marley surface
impoundment did not
attain interim status.
Marley acquired the site
in 1979 or 1980,
97—175
—6—
prior
to the effective date of the RCRA notification and permit
requirements.
R.
110; see Agency Record,
Ex.
65,
66
&
87.
It
also indicates
that Marley did not notify USEPA
of the existence
of
its hazardous waste surface impoundment
nor submit
a Part A
application.
The Agency characterized Marley as a “non—notifier”
in its Closure Plan Review Notes, Agency Record,
Ex.
82,
and
indicated
to USEPA that
it had no such record of
this facility.
Agency Record,
Ex.
86.
Further, Marley admits
to initial
discovery of the character
of the impoundment
in the course of
a
1987 environmental audit of the site.
R.
34
& 110; Agency
Record,
Ex.
87.
Second, with regard
to the maintenance
of interim status,
even
if Marley had acquired
interim status for
its impoundment
in
1980,
it did not have any groundwater monitoring wells until
1987, Agency Record,
Ex.
105,
so
it obviously did not comply with
40 CFR
265,
Subpart F from November
1981
(or
35
Iii.
Adm.
Code
725.
Subpart F from May 1982)
through at least November
1987.
Even at this
late date, Marley has still not installed one
upstream groundwater monitoring well and three downstream
monitoring wells as required by Section 725.191,
nor hasMarley
fulfilled
the sampling and analysis requirements
of Section
725.192.
Further,
the record nowhere indicates
that Marley had
ever prepared
a closure plan or performed other compliance—
oriented activities until
at least
late
in 1987.
These
facts
indicate that Marley has not complied with major portions of Part
725 and maintained any interim status.
Third, even
if Marley had acquired interim status for its
impoundment
in 1980 and maintained interim status from 1980 until
1985,
it did not comply with the 1984 HSWA amendments
to avoid
a
loss
of that status on November
8,
1985.
Marley did not certify
compliance with
35 Ill. Adm.
Code
725. Subpart
F
in 1985 because
it did not have any groundwater monitoring wells until
1987.
Agency Record, Ex.
105.
Further,
the record nowhere indicates
that Marley has ever submitted
a RCRA Part B application.
Nor
have
they acquired and maintained financial
responsibility
or
completed groundwater monitoring.
These facts indicate that
Marley did not avoid a loss
of any interim status under
the 1984
HSWA
requirements.
Finally, with regard
to
the effect of Marley’s non—compliant
status on the factual record before the Board, Marley offers
the
results of limited testing and conclusory technical arguments
to
characterize the site geology, soils,
and underlying ground-
water.
It does not offer the type
of detailed information
that
compliance with
the interim status requirements would have pro-
duced.
It
is reasonably clear from the record that Marley never
acquired interim status
in 1980.
It
is undeniably clear from the
record that Marley did not maintain interim status by compliance
97—17 6
—7—
with the Part
725 regulations.
To the extent that those regula-
tions applied
to Marley,
the parties have
failed to show that
Marley was ever
in compliance with any
of the regulations
of Part
725 and the record clearly demonstrates
that Marley was
in
absolute violation of nearly
all
of the substantive regula-
tions.
In addition to the non—compliance caused by Marley’s
inaction,
the record shows Marley violated the provisions
of
Section 725.212
(d)(l)
by attempting
to close
the site without
approval.*
If Marley ever had acquired interim status, Marley
lost
it by Congressional mandate on November 8,1985.
The Board
holds
that Mailey
is
not entitled to seek interim status closure
under Section 725.328.
Adequacy Of The Information Submittal
In a similar manner,
the Board
finds
that Marley’s initial
information submittal was inadequate
to justify any Agency
regulatory permit decision.
Marley claims
to have submitted
a
“Parts 724 and/or 725
...
hazardous waste surface
impoundment
closure plan for review and approval”.
Agency Record,
Ex.
71.
Marley’s submittal contains
inadequate information whether
it
is
tested against
the information that would have been developed
by
a compliant interim status facility
in anticipation of closure or
tested against
the information requirements of
a Part
B applica-
tion
for
a new permit seeking
to close
an existing facility.
By now,
a compliant interim status
facility would have
developed a substantial amount
of information on the operations
of the facility and the
impact the facility was having on the
environment.
As much
of today’s conflict involves groundwater
monitoring,
the Board must note that
a compliant facility would
have installed one upstream and
three downstream monitoring wells
and secured
information from those wells
for
a period
of nearly
seven
years.
within
this
context,
the
Board
would
be
able
to
determine
whether
additional
monitoring
was
necessary
as
part
of
a
closure
plan.
Marley’s
submittal
clearly
lacks
this
information.
*
Marley
drained
the
impoundment
and
removed
110
tons
of
contaminated sediments from its bottom
in May 1987.
P.
44—45;
Agency Record,
Ex.
71.
Marley’s consulting engineers
characterized
this removal
as occurring “during routine
maintenance.”
Agency, Record,
Ex.
71.
However,
the record
indicates
that Marley performed
this
removal upon discovery of
the
contamination
and
with
a
view
to
closing
the unit.
See P.
9—
10;
34—36,
42—45
&
48—49;
Agency Record,
Ex.
87.
This i~itia1
cleanup work was part of the overall closure activity,
and
it
occurred
prior
to
the issuance of
a closure plan approval.
97—177
—8—
Marley’s
submittal
also
failed
the
information
requirements
for
a proper permit application.
Permit applications
for RCRA
hazardous waste permits are governed by 35 Ill.
Adm.
Code Part
703. Subpart D.
The purpose of permit application regulations is
to ensure that the permit applicant, permit decisionmaker, and
any reviewing body will have
an adequate amount
of particular
types of
information so that correct, well informed, permit
decisions can be made.
The only permit applications relevant
today under RCRA are the Part
B permit applications under Section
703.182
et
seq.
For
new
permits,
Section
703.185
et
seq.
requires
far
more
information
in
the
permit
application
than
Marley
has
provided
in
its
closure
plan
submittal.
In
fact,
that
section
requires
far
more
information
than
t4arley
now
has
placed
at
issue
regarding
the
interim
status
closure
permit.
The
permit
application
provisions
of
Part
703
are
quite
extensive
because
they
are
intended
to
apply
to
those
that
have
not
previously
participated
in
the
regulatory
scheme
for
the
control
of
hazardous
waste.
Marley’s
submittal
did
not
satisfy
the
information
requirements
of
Part
703.
The
facts
of
this
case
are
similar
to
those
involved
in
United
States
v.
T
&
S
Brass
and
Bronze
Works,
Inc.
,
681
F.
Supp.
314
(D.S.C.
1988).
T
&
S
Brass
began
operation
of
a
surface
impoundment
prior
to
RCRA,
but
failed
to
notify
USEPA
and
file
a
Part A
PCRA
permit application until
1985.
The court held
that T
&
S
never acquired interim status.
Id.
at 318.
Further,
although T
&
S Brass filed
a Part
B application and certification
on November
8,
1985,
that certification was incomplete.
Id.
at
319.
This failure
to properly comply with the November
8,
1985
cut—off date resulted
in a
loss
of
any
interim
status
as
of
that
date.
Id.
at 320—21.
Although the point
of the T
&
S Brass case
was that T
&
S
Brass
violated
RCRA
by
continuing
operation
of
its
impoundment
after
November
1985,
Id.
at
321—22;
see
also
Vineland,
692
F.
Supp.
314,
more
important
to
the
present
proce~Tng
was
the
fact
that
the
court
ordered
an
immediate
closure
under
Part
264
of
the
federal
rules.
Conclusion
In addition
to
the
legal impediments
to applying Part
725
standards
to the minimal information Marley submitted
in this
case,
there are other more pragmatic considerations.
These
common—sense
factors
force
the
Board
to
conclude
that
the
closure
and
post—closure
care
requirements
of
35
Ill.
Adm.
Code
725.328
can
only
operate
within
a
regulatory
scheme
which
governs
those
facilities
that
are
generally
in
compliance
with
the
interim
status
regulations.
The
Part
725
interim
status
standards
applicable
to
surface
impoundments
include
inflexible,
non—
discretionary information—gathering
requirements.
This
Board
simply cannot pluck the specific narrative standard of Section
725.328 away from the broader regulatory framework and apply it
to
a
recently acquired
ad hoc collection of data
(which ç~early
97—178
—9—
does
not
meet
the
requirements
of
Sections
725.190
et
seq.
in
either
quality
or
quantity),
then
make
a
determination
as
to
what
constitutes
an
appropriate
closure
plan
under
the
RCRA
regulations.
Section
725.328
does
not
constitute
a
convenient
regulatory
hook
upon
which
to
hang
all
of
the
recently
discovered
but
poorly
studied
hazardous
waste
sites
in
Illinois.
Those
facilities
must
submit Part B applications for
a Part 724 permit.
The Agency
decision
to grant Marley
a
permit
should
therefore
be
vacated
as
improper.
The Board affirms
the January
19,
1989 Order which
vacated
this permit.
The Board
is cognizant
of the apparent
circumstances which
have created
the dilemma today confronting Marley.
Whatever
these circumstances,
it
is clearly
too
late for Marley or the
Agency
to utilize
those forms
of relief available only
to
facilities which have obtained and maintained
interim status.
Without specifically endorsing any alternative,
the Board
suggests that Marley and the Agency consider other avenues,
including those available under remedial
statutory authorities
(e.g.,
“superfund” and enforcement provisions),
as opposed
to
prescriptive/managerial statutory authorities
(e.g., permit—based
systems such
as PCRA and NPDES).
It may
be that such other
avenues may
be less onerous but still appropriate mechanisms
for
assuring an environmentally acceptable closure of this facility.
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. Gum,
Clerk of
the Illinois Pollution Control
Board, her
by certif
that the above Order was adopted on
the
‘~~~dayof
______________________,
1989,
by
a vote
of
7—~~:)
Illi
Control
Board
97—179
