ILLINOIS POLLUTION CONTROL BOARD
September
8,
1988
IN THE MATTER OF:
PETITION OF CRETEX PRESSURE
)
PIPE,
INC.
(FORMERLY
)
GIFFORD—HILL AMERICAN LOCK
)
R84—45
JOINT, INC.) FOR SITE
)
SPECIFIC RELIEF FROM 35
ILL.
)
ADM. CODE 807.305
)
ADOPTED RULE.
FINAL ORDER.
OPINION AND ORDER OF THE BOARD
(by 3. Anderson):
Procedural History
This matter comes before the Board on the December
20, .1984
petition of Gifford—r-1i11 American Lock Joint,
Inc.
(GHA)
for site
specific relief from the daily,
intermediate,
and final
cover
requirements of 35
Iii.
Adm. Code 807.305
(a,b,c)
for
its
disposal of concrete wastes
at
its South Beloit, Winnebago
County,
reinforced concrete pipe manufacturing facility.
Hearing
was held
on April
23,
1985,
at which GHA presented testimony and
exhibits,
as well
as an amendment
to its request.
No members
of
the public have participated
in or made comments concerning this
proceeding.
The Illinois Environmental Protection Act
(Agency)
filed comments
in support
of GHA’s request on July
5 and August
13,
1985; GHA’s
final comments were filed August 20,
1985.
In
letters of June 13 and July
2,
1985,
the Department of Energy and
Natural Resources made its determination that an Economic Impact
Study concerning
this proposal was unnecessary on the basis
that:
“The
net economic impact
of
the regulation
is
favorable
and
the
costs
of
compliance
are
small
or
are
borne
entirely
by
the proponent
of the regulation.”
Consequently,
no economic hearings have been held.
The Board adopted and authorized
first notice publication of
these
rules
by its proposed Opinion and Order
of October
24,
1985.
The Agency filed a comment concerning
this proposal
on
November
8,
1985.
Due
to administrative error,
the first notice
publication did not appear
in the Illinois Register until March
13,
1987 at
11
Ill.
Reg.
4215.
The only comment received
thereafter was
that of the Administrative Code Division of the
Secretary of State,
filed April
9,
1987.
92—219
—2—
On April
30, 1987,
the Board adopted
a Proposed Opinion and
Order
directing
the
Clerk
to
submit
the
proposed
rules
to
the
Joint
Committee
on
Administrative
Rules
(JCAR),
pursuant
to
Second Notice requirements of the Administrative Procedures
Act.
In the Opinion,
the Board limited
the relief
to Gifford—
Hill only,
and indicated that any successors
in
interest would
be
required
to make a showing that they were entitled
to similar
relief.
On May 13,
1987, prior to mailing of the Second Notice
submittal
to JCAR,
the Board received
a letter which stated
in
pertinent part
that:
“GRA
Lock
Joint,
Inc.,
sold
the
South
Beloit
plant
to The
Cretex
Companies,
Inc.,
located
in
Elk
River,
Minnesota.
The
South
Beloit,
Illinois
plant
was
renamed
Cretex
Pressure
Pipe,
Incorporated.
Both
the
hourly
and
salaried
staff
remain.
Cretex
will continue
to manufacture Lock Joint concrete products.
Cretex
Pressure Pipe,
Inc.,
shall
continue
to
meet
the
disposal
activities
as
required
of
Gifford—Hill
American
Lock
Joint,
Incorporated,
by
the
Illinois
Pollution
Control
Board.
Accordingly,
by Order
of May 14,
1987,
in light of
these
changed circumstances the Board vacated
its April
30,
1987
Opinion and Order.
In that Order,
the Board noted
that:
“the
only
sworn
testimony
in
this
record
is
that
presented
by
Gifford—Hill.
If
Cretex
wishes
to
adopt
as
its
own
and
reaffirm
the
testimony presented
on behalf
of Gifford—Hill
concerning
all
aspects
of
the
manufacturing
and
disposal
activities,
Cretex
should
do
so
by
way
of
affidavit
from
personnel
having
authority to so bind
the corporation.
In this
event,
the Board
would
consider proposing
the
rules
without
holding
an
additional
hearing.
If,
however,
circumstances have
substantially
changed, Cretex
should so
inform the Board,
as
an
additional
hearing would
then
be
required
to update this record.”
On June 8, 1987, Cretex
filed an affidavit executed by
its
President,
Peter W. Raymoure.
The substance of the affidavit was
that Cretex adopted and reaffirmed
the record created by Gifford—
Hill.
92—220
—3—
By Hearing Officer Order of June
15,
1987,
the comment
period was
reopened through July 3,
1987.
The participants were
specifically requested
to indicate whether they had any
procedural objections
to the Board’s grant of
relief to Cretex on
the basis of
the hearing record and
the Cretex affidavit.
The
only responsive comment received was that filed by the Agency on
June 24.
The Agency stated that
it had
no objection to the
procedure,
suggesting only that the caption of this docket be
amended.
On July
16, 1987,
the Board granted relief to Cretex on the
basis of the hearing record and the Cretex affidavit,
and
authorized
the second notice submittal of
the rule.
By
its Order
of February 25,
1988,
the Board
noted
that
adoption of
a second first notice order was necessary,
since
first notice publication occurred
on March
13,
1987,
and was not
sufficient time for this
rule to proceed
to final adoption within
the one—year period required by Section 5.01(d)
of
the APA.
This second
first notice was published
in 12
Ill.
Reg.
5168,
March
19,
1988.
Pursuant
to the Board’s Second Notice Order of
May 19, 1988,
the proposed
rules were submitted
to the Joint
Committee on Administrative Rules
(JCAR).
On August 23,
1988,
JCAR issued
a Certification of No Objection to the rules,
based
upon the making of certain modifications.
The Cretex Operation
Cretex,
as did
its predecessor GHA, operates
a plant
involved
in the manufacture of reinforced concrete pipe.
This
facility,
located
in Northern Winnebago County, Illinois,
spans
93 acres.
The facility employs approximately 150 people.
In
the course of
a day, Cretex uses approximately 120 tons
of sand,
90 tons of stone,
and 45
tons of cement.
These
materials are mixed together with water
to make concrete, which
is
then placed
in steel molds
and cured.
After curing,
the molds
are removed leaving
a concrete pipe which
is then used for water
and wastewater transmission.
Upon completion of
a day’s production,
there remains
a
quantity of concrete
to be disposed
of.
Daily amounts will vary
from
2
to
4
tons.
This
is
a result from spillage,
breakage and
waste.
The refuse to be placed
in the landfill
is concrete
waste, cull pipe and
an occasional steel
rod embedded
in the
concrete.
The material
is non—putrescible and non—biodegradable.
The cover requirements of
35
Ill.
Adm. Code 807.305 can
be
briefly summarized
as follows:
daily
—
6
inches,
intermediate
—
12 inches,
final
—
2
feet.
Pursuant
to variances granted
to GHA
and
its predecessor Interpace Corporation
(see PCB 75—495, June
92—221
—4—
6,
1976;
PCB 77—274,
December
20,
1977;
PCB 79—206,
December
13,
1979;
and PCB 83—125, December
29,
1983)
cover has been placed on
this material as follows:
daily
—
none,
“intermediate”
—
1 foot
every
6 months,
final
—
2 feet at
the end
of every variance
period,
or
roughly 1—2 years.
In this petition for site specific
rule change
(filed
in response
to a suggestion
in the PCB 83—125
variance), Cretex requests the following cover requirements:
daily
—
none;
“intermediate”
—
6
inches per week;
final
—
2 feet
on final sloping faces,
6 inches on flat surfaces used for
industrial purposes.
Cretex proposes retention of other
conditions of
the variance including limitation of
the disposal
area
to one acre,
and
of the disposal height
to that of
the
adjacent improved terrain.
The concrete waste disposal area
is
a 25 acre tract located
to the north
of the plant;
since operations began on the site
in
1952,
10 acres have been filled.
The
life of
the remaining 15
acres of
the disposal area is anticipated
to be
a minimum of
20
years
(R.
15, 39—40).
Cretex’ nearest neighbor
to the north
is
a
quarry operation,
to the south
a manufacturing facility,
to the
east
a closed landfill,
to the west
the City of
South Beloit.
The nearest
residential dwellings are directly across the road
from the plant
itself,
or roughly one half mile to the south
of
the landfill area.
During the past
10 years, disposal
of
the waste concrete
without daily cover pursuant
to variance has neither produced
a
noxious odor nor harbored rodents.
Quarterly tests of water
quality on wells on the Cretex property have shown no change and
the Winnebago Department of Public Health tests show the water
is
safe
to drink
(Group Exh.
5).
The Agency has inspected
this
facility nine times between 1978—1983 and found no environmental
problems resulting from lack
of daily
cover during any of the
inspections
(Group Exh.
11).
The Agency has received
no
complaints regarding operation of the site.
GHA asserted and Cretex affirmed,
that continued
“Wai\rer” of
the daily
cover requirements results
in
a cost savings on the
order of $l300—$l600
per week
(R.47 and Exh.
2).
The further
modification of
the intermediate cover requirements would be
estimated to save an additional
$44,400 per year and final cover
requirements an estimated $19,356
per year
(Group Exh.
10).
Concerning final
cover,
Cretex requests,
in essence,
that
six inches of
final cover
comprised of “silty sand which provides
good structural support
in conjunction with the landfilled
material”
and which “minimizes vegetative
cover” be permitted on
the reclaimed flat (top)
of the landfill area in lieu of the
normally mandated two feet of suitable cover
(usually capable of
supporting beneficial vegetative
cover).
Cretex believes that
this sand
is preferable
to conventional cover materials because
it deters vegetative growth.
This
is desirable given Cretex’
92—222
—5—
continuing use of the finished
flat
top of
the landfill area for
inventory storage, heavy equipment
(see photographs,
Group Exh.
12)
and,
possibly,
the future site of additional production
buildings.
Cretex agrees that
if and when such “industrial uses”
cease,
the site will be restored
to more of
a natural state,
including two feet of cover capable of supporting vegetation.
Cretex also agrees
to provide two feet of cover capable of
supporting vegetation
to provide erosion control on the final
(east) slope of
the landfill and any other
“final sloping faces.”
The Agency supports grant of the requested relief,
noting
that the compactible nature of the principal waste material——
concrete rubble——limits the effect of lack of daily cover,
and
indeed, may
be preferable to other cover materials.
The only
material which potentially poses even
a de minimus threat of
water pollution
is the steel reinforcing bars which have the
potential
to create leachate problems.
Although stating that
this
is
an
“unlikely prospect”,
the Agency urges
inclusion of
a
provision
in the rule requiring petitioner
to
limit inclusion of
such wastes
in the landfill.
In this context,
the Agency notes
that the Industrial Materials Exchange Service, operated by the
Illinois
State Chamber of Commerce
in cooperation with the
Agency,
might be able
to find
a market
for some of
the wastes
landfilled.
The Proposed Rule
It
is the opinion of
the Board that the site—specific relief
requested by Cretex may be granted with minimum risk
to the
environment; based upon the communications from DENR and the
other evidence
in the public hearing record,
the Board finds that
grant of
the request will have
no adverse economic impact on the
people of the State of Illinois.
The Board therefore adopted
for first notice
a rule
substantially similar
to that suggested by Cretex and the Agency,
as outlined
in the attached Order.
Language
revisions were
necessary
to covert
the looser language used
in the variances
to
comport with requirements of
the Joint Committee on
Administrative Rules.
In this context,
the Board notes that
it
did not include the Agency’s suggestion
that Cretex be ordered
to
minimize disposal
of metal—bearing waste “to
the extent
practicable” due
to inability to frame precise guidelines
or
standards for enforcement
for what
is essentially
a variance—type
hortatory injunction.
The Board did not adopt Cretex’ suggestion that the
rule
provide that it need not provide an additional one and one—half
feet of
final
cover
to the flat reclaimed area
in the event
of
sale of the site
to another
industrial
user who also would prefer
that the area continue without vegetative
cover.
Variance and/or
site—specific relief would be
the more appropriate mechanism in
92—223
—6—
that case,
to allow
for determination by the Board of
the
similarity of
the uses to which
the successor industry would put
the property and the resulting environmental
impact.
The Board notes that Cretex made no objection
to this
proposal, which was contained
in the vacated May
14,
1987 Order.
Finally,
the Board has amended the proposed rule
to
substitute references
to Cretex
for references
to CHA
in light of
the ownership change.
Response To Comments
The Administrative Code Unit’s April
9,
1987 comment
requested that minor format changes be made,
which are reflected
in the rule as set forth below.
The Agency’s November
8, 1985 comments were that while
it
was generally supportive
of
the rule,
that
it was not aware
of
precedent for “corporation—specific
(as opposed
to
site—specific)
rules”,
and queried whether such rules could be offensive
to the
constitutional prohibition against special legislation contained
in Ill.
Const.,
Art.
IV, Section 13.
While the Agency
is correct
that
35
111.
Adm.
Code Part 800 does not contain “corporation—
specific”
rules 35
Ill.
Adm.
Code Part 304, Subpart B contains
some
eleven
rules adopted since 1981 which establish “site—
specific” effluent standards for
individual corporations and
sanitary districts.
Precedent for
such rules does exist,
and the
legislature has specifically articulated
its intention that rules
may be adopted
specific
to individual “persons” such as
corporations as well
as
to geographical areas or sites.
(See P.A.
84—1320, Section
30, eff.
Sept.
4,
1986, which amended Section
28.1
of the Act
to provide that the “Section shall
not be
construed so as
to affect or limit the authority of
the Board
to
adopt,
amend or
repeal regulations specific
to individual
persons,
geographic
areas or sites pursuant to~Section27 Wand 28
of this Act,
or
so as
to affect or
impair
the validity ofany
such existing regulations”.)
As
to the concern regarding special legislation,
the
Illinois Supreme Court has applied
the same analysis
to Board
regulations as
to actions of the General Assembly.
In a case
rejecting
a constitutional challenge which regulated equipment
used
in mining while identical equipment used in construction was
exempted,
the Court expressed its view that:
The
legislature
may
create
legislative
classifications,
for
“perfect
uniformity
of
treatment
of
all
persons
is
neither
practical
nor
desirable.”
A
classification
must
not,
however,
be arbitrary,
and
it must be based on
a
rational
difference
of
condition
or
92—224
—7—
situation existing
in
the persons
or
objects
upon which
the classification rests.
This was
also expressed by this court
in People ox
rel.
County
of
Du
Page
v.
Smith,
21
Ill.2d
572,
578,
when
it
was
said:
“If
there
is
a
reasonable
basis
for
differentiating
between
the
class
to which
the
law
is
applicable
and
the
class
to
which
it
is
not,
the
General
Assembly may constitutionally classify persons
and
objects
for
the
purpose
of
legislative
regulation
or
control,
and
may
pass
laws
applicable
only
to
such
persons
or
objects.”
Also,
there must be
a reasonable basis
for
the
classification
in
view
of
the
objects
and
purposes
to
be
accomplished
by
the
statute.
Ill.
Coal
Operators
Assn.
v.
PCB,
59
Ill.2d
305,
319 N.E.2d 782,
_____
(1974).
The Board believes that this record provides
a
reasonable
basis
for modification of cover requirements for Cretex.
The
unrefuted evidence
is
that, while operating pursuant
to modified
cover requirements established by variance,
GHA caused none of
the environmental problems which
the Act and
the implementing
Board regulations were intended
to prevent,
and that
its
successor Cretex has sworn
to continue operations
in like
fashion.
In these circumstances,
to require Cretex
to expend
substantial sums to achieve full compliance with existing cover
requirements
in the interests
of “perfect uniformity
of
all
persons
is neither practical nor desirable”.
To the extent that
the Agency
is concerned about “co—tenants and successor owners
and operators of the property”,
the Board believes that it
is
rational
to restrict the relief granted here
to Cretex which has
adopted and reaffirmed
the record developed before
the Board.
The Board questions the legality
of extending regulatory relief
to an unknown entity on the mere speculation that
its future
waste disposal operations will be handled competently.
In short,
the Board does not find that the proposed rule
requires modification
in response
to the Agency’s initial
comment.
Another subject which needs
to be briefly addressed relates
to the grant
of relief to Cretex on the basis
of its adoption and
affirmation of
the record created by Cretex.
As aforementioned,
only the Agency has commented on this issue,
and has stated its
lack of objection thereto.
The Board believes that this procedure satisfies the
rulemaking requirements of
the Environmental Protection Act, as
the Board has based
its decision on a sworn
record.
Substitution
of parties
is
a not—uncommon occurrence
in other
types of actions
before the Board, such as variance proceedings, when
an ownership
92—225
—8—
change occurs during the pendancy of the proceeding and the
successor company agrees
to be bound
by the record created by its
predecessor.
Utilization of this procedure, given all of
the
circumstances here,
is
in the best fiscal
and administrative
interests of all concerned,
as
it allows allocation of scarce
resources
to more useful projects than replication of existing
documentation,
testimony and comments.
Finally,
to satisfy JCAR’s concerns, the Board has agreed
to
modify Sections 807.700(b)(l), 807.700(b)(4),
and
to update the
authority note,
to read as set forth in
the Order
below.
These
changes do not change
the substance of the rules,
but are
responsive
to JCAR’s desires
for further clarity.
ORDER
The Board directs that the following rules be filed with
the
Secretary of State:
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
i:
SOLID WASTE AND SPECIAL WASTE HAULING
PART 807
SOLID
WASTE
SUBPART G:
SITE SPECIFIC RULES AND EXCEPTIONS NOT OF GENERAL
APPLICABILITY
Section 807.700
Cretex Pressure Pipe,
Inc.
Concrete Waste Disposal Site
a)
The cover requirements of
Section 807.305(a),
(b) and
(c)
shall not apply to the on—site disposaL
of concrete
waste resulting from the manufacturing operations of
Cretex Pressure Pipe,
Inc.
(Cretex) at its South Beloit,
Winnebago County,
plant.
b)
Disposal activities shall meet the following
requirements:
1)
Cretex s~xa1llimit waste disposal
to the types
of
waste disposed
of pursuant
to variance granted
in
PCB 83—125,
which are concrete waste, cull pipe,
and metal reinforcing
rods embedded
in concrete.
Cretex shall
take all
reasonable measures
to
minimize disposal of
such metals
as waste through
use
of recycling,
such
as reuse of the metals on—
site
or sale or exchange of
the metals through the
Illinois Industrial Materials Exchange Service.
9 2—226
—9—
2)
Cretex shall limit
the exposed, active surface of
its disposal site to
a one acre area,
and the
height of the fill in the active area
to that of
adjacent improved terrain.
3)
Once a week, Cretex shall cover the exposed,
active
surface of
its disposal site with
a compacted layer
of
at least
6 inches
of earthen material.
4)
Within 60 days of cessation of disposal activities,
in any one acre area,
Cretex shall provide any
final,
sloping faces
of its disposal
site with at
least two feet of final cover
consisting of
compacted earthen material.
Cretex shall insure
that
a vegetative
cover
is established
to control
erosion.
5)
Within
60 days of cessation
of disposal activities,
Cretex shall provide any flat reclaimed area
of
its
disposal
site which
is
to be used for the storage
of pipe inventory and equipment,
or which
is
to be
occupied by buildings,
with at least six inches
of
final
cover consisting
of silty sand
or similar
material.
However, within 60 days of cessation of
such uses, Cretex shall provide at least an
additional
18
inches
of final cover material as
specified
in subsection (b)(4) above.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify that the
bove Opinion and Order was
adopted on the
~
day
of
______________
1988, by
a vote
Illinois
on Control Board
92—227
