ILLINOIS POLLUTION CONTROL BOARD
January
19,
1989
MARLEY-INGRID (USA),
INC.,
Petitioner,
v.
)
PCB 88—17
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
JAMES
I.
RtJBIN; MICHAEL
A.
STICK; KEVIN
J. O’BRIEN;
BUTLER,
RUBIN, NEWCOMER,
SA~LTARELLI & BOYD, APPEARED ON BEHALF OF
PETITIONER, MARLEY—INGRID (USA),
INC.;
AND
PAUL
R.
JkGIELLO, APPEARED ON BEHALF
OF RESPONDENT,
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter
is before the Board
on
the January 15,
1988
petition of Marley—Ingrid
(USA),
Inc.
(‘1Marley—Ingrid”).
That
petition seeks review of several conditions imposed
by the
Illinois Environmental Protection Agency (“Agency”)
in the
Agency’s December
11,
1987 closure permit.
That permit involves
a hazardous
waste surface impoundment located
on land owned by
Marley—Ingrid
at Lake Bluff,
Illinois.
The public hearings
occurred on April
20 and 27,
1988 at Lake Bluff,
and one member
of the general public attended without participating.
Marley—
Ingrid filed
its post—hearing brief on September 30,
1988.
The
Agency filed
its response
on October
28,
1988.
Marley—Ingrid
filed
its reply on November
7,
1988.
I.
Background
Marlev—Ingrid formerly owned
a manufacturing facility along
U.S. Highway
41
in Lake Bluff,
Illinois.
A small surface
impoundment
is located
on
a portion of that property.
Ex.
1;
R.
36—38
& 40—41.
Marley—Ingrid maintained
offices
and manufactured
plastics at the facility until
1987.
Marley—Irigrid acquired the
facility
from Goodyear
in 1979
or
1980.
R.
110.
Goodyear
acquired
the plant
in 1956 from Deep Freeze,
a company which
manufactured refrigerators at the facility,
and which built
it in
1950.
The surface impoundment collected
industrial discharges
from
the facility from 1956 until 1974.
R.
104—05.
The most significant known discharges
into
the surface
impoundment occurred during Goodyear’s
tenure at
the facility.
Goodyear manufactured
rubber hose at the plant.
This process
95—293
—2—
produced lead—containing cooling water
that drained
into the
impoundment.
Agency Record,
Ex.
13,
15
&
16;
R.
98.
Goodyear
also used
the impoundment to collect other
plant wastes and
operated
a skimmer
in the
impoundment
for oil separation.
Agency
Record,
Ex.
1,
2,
19,
26.
31,
41,
48—51
& 54—59.
Marley—Ingrid hired Weston,
a consulting engineering firm,
to perform an environmental audit of the site
in 1987
in
contemplation of its imminent sale to the current owner,
Penmark.
R.
34
&
110.
During t1~course of the environmental
audit, Weston uncovered several potential problem areas at the
site,
including
the
fact that
the impoundment sludges were RCRA
hazardous as
EP toxic
for lead.
See
35
Ill. Mm.
Code 721.120
&
721.124
(1987).
Weston performed much cleanup work prior
to
seeking Agency approval
for the closure of the surface
impoundment.
Agency Record,
Ex.
87;
R.
37,
44—45,
48
& 116—17.
The record
reflects that the site at one time had
underground solvent and fuel storage tanks.
R.
189,
204—05;
Agency Record,
Ex.
87.
Oil reclamation also occurred within the
plant.
Tests on sludge samples
from the sump near
the oil
reclamation area disclosed traces of
a
PCB, pentachloropheriol,
pyrene,
nitrooheriol, and
a phthalate.
Excavation of the former
waste disposal basin,
now mostly covered by the Building
41
addition and replaced
in service by the present impoundment,
disclosed discolored
soils.
Agency Record,
Ex.
87.
The closure plan submitted by Weston on behalf of Marley—
Ingrid seeks
to complete
site cleanup for the impoundment.
Weston submitted Marley—Ingrid’s
first version of
a closure plan
to the Agency on June
10,
1987.
Ex.
1.
The Agency rejected this
plan
as deficient on September
17,
1987.
Ex.
2.
Weston
responded with more
information on October
12, October
29,
December
3,
and December
7,
1987.
Ex.
3—5;
Petition,
Ex.
F.
The
Agency granted
a closure permit with certain Agency—imposed
conditions on December
11,
1987.
Marley—Ingrid then filed
the
present appeal on January
15,
1988.
II.
Regulatory Background
The Agency’s authority to
impose permit condition flows from
the Environmental Protection
Act (“Act”),
Ill.
Rev.
Stat.
ch.
111
1/2, pars.
1001—1052
(1988).
The Act provides as
follows with
regard
to conditions
in RCRA permits:
All RCRA permits shall
contain those terms and
conditions
...
which
may
be
required
to
accomplish
the purposes and provisions of this
Act.
The
Agency
may
include
among
such
conditions,
standards
and
other
requirements
established
under
this Act,
Board regulations,
the Resource
Conservation
and Recovery
Act of
1976
(P.L.
94—580),
as
amended,
and
regulations pursuant thereto
95—294
—3—
Par.
1039(c)
(emphasis added).
This section clearly
indicates that the Act, Board
regulations,
and federal statutory and regulatory requirements can act as the
foundation for conditions to
an Agency—issued closure permit.
The parties essentially dispute whether the provisions of
35
Ill.
Adm. Code 724 or 725 of the Board
rules would apply to the
closure of the Marley—Ingrid surface impoundment.
In
so doing,
they miss the essential
issue:
such conditions may also derive
from federal requirements,
in order
that the state—issued permit
and state regulatory program remain consistent with the federal
RCRA regulations.
See
42 USC
6926(e)
(1987).
Federal amendments
to RCRA,
the Hazardous and Solid Waste
Amendments of 1984
(“HSWA”),
Pub.
L.
98—616,
Title
II,
secs.
243(c)
& 215,
98 Stat.
3240—43,
3253
& 3261
(1984)
(codified
as
42 USC 6925(i)
&
(j)
(1987)), mandated
a change
in the way the
federal
regulations apply to surface impoundments.
In
furtherance of this mandate,
U.S.
EPA promulgated
final,
immediately effective
rules on December
1,
1987.
52 Fed.
Reg.
45788
(Dec.
1,
1987).
This predates the Agency’s final
disposition of Marley—Ingrid’s permit application.
See Ex.
6
(dated December
11, 1987).
These regulations
took effect
in
Illinois on that date, despite
the fact that Illinois was an
authorized state
for administration of its own RORA program.
Compare 42 USC
6926(b)
(1987)
with
42 USC 6926(g)(1).
III.
Discussion
The primary
issue
involved
in this proceeding
is the
Agency’s authority to impose major elements of a Subpart
F
groundwater monitoring program, see
40 CFR 264
&
265, Subpart
F;
35
Ill. Mm.
Code
724
&
725, Subpart
F, as
a condition
to closure
of Marley—Ingrid’s surface
impoundment.*
Mariey—Ingrid argues
that the expense associated
with such monitoring
is
unjustified.
The Agency generally contends that such monitoring
is necessary without explicit regulatory support.
Both parties
urge this Board
to review the extensive
and
expensive
technical conditions imposed on this hazardous waste
facility closure plan under
the legal standards of
35
Lii. Mm.
The Agency imposed
conditions based on 35
Ill.
Adm.
Code
725.
See Ex.
6.
The Board notes that major dissimilarities appear
between the structure and content of
35
Ill.
Adm.
Code
725,
Subpart F monitoring requirements
and those of 40 CFR 264,
Subpart
F.
Because
the parties have not addressed
these apparent
dissimilarities,
the Board will
not now attempt
to discern the
extent
to which the Agency—conditioned permit might comply with
40 CFR 264 requirements.
95—29S
—4—
Code 724
& 725 which provide
a general narrative standard to
ensure protection of the environment and public health.
Both
parties ignore binding federal regulations which appear,
specifically and
in great detail,
to require most if not all of
the contested conditions.
This
is particularly distressing
since
the Board directed the parties
to the case
in which these federal
regulations were discussed, Browning Ferris Industries
of
Illinois,
Inc.
v.
EPA,
PCB 84—136
(May
5,
1988).
Those
federal regulations are binding on Marley—Ingrid
as
a
matter of federal law
(arid have been since December
1,
1987),
whether
or not
Illinois could
impose such conditions
in this
permit as
a matter of state law.
Those federal regulations
address the contested conditions with great specificity and
detail.
And, Section 39(c)
of the Act clearly authorizes the
Agency
to impose those
federal regulatory requirements
in this
instance.
Under
these circumstances,
the
Board will not address
whether
a state narrative regulation regarding protection
of the
environment and public
health would also justify imposition of
such extensive
and expensive technical conditions.
As the Board
has previously noted the federal
HSWA
amendments
render
40 CFR
264 standards applicable
to certain
facility closures,
such as that now sought by Marley—Ingrid,
notwithstanding
the fact that the Board had not yet adopted
final, effective, corresponding
rules that would make
35
Ill.
Mm. Code 724 apply.
As previously stated
in Browning—Ferris:
In
1984,
Congress
amended
RCRA
to
add
new
Section
3005
(i).
That provision requires all
hazardous
waste
facilities
which
had
received
hazardous
wastes
after
July
26,
1982,
to com-
ply
with
certain
regulatory
requirements
for
new
facilities.
On
December
1,1987,
USEPA
adopted final
regulations implementing Section
3005
(i)
at
52
FR 45788.
That regulation not
only
requires
compliance
with
the
federal
equivalent
of
Part
724,
but
the
preamble
to
the
regulation
makes
it
clear
that
such
facilities
must
submit
a
Part
a
application
and obtain
a RCRA permit:
Therefore,
today’s
final
rule
differs
from
the
proposed re-
vision
to
Section
270.1(c)
by
requiring
post—closure
permits
for
any
landfill,
surface
im-
poundment,
waste
pile,
or
land
treatment
unit
which
received
waste
after
July
26,
1982,
or
which
closed
after
January
26,
1983.
The
term
“closure”
in
this context has been clarified
95—296
—5.-
to
mean
certification
of clo-
sure
according
to
Section
265. 115.
Since
the
subject
facility received hazard-
ous
waste
after
July
26,
1982,
and
did
not
certify closure prior
to January 26,
1983
(see
35
Ill.
Adm.
Code
725.215
(1988);
40
CFR,
Section
265.215
(1987)),
its
owner/operator
is
clearly
subject
to
the
December
1,
1987
regulations.
Further,
those
federal
regu-
lations
are
legally
applicable
to
its
owner/operator
as of December
1,
1987:
Prior
to
USWA
a
State
with
final
authorization
adminis-
tered
its hazardous
waste pro-
gram
entirely
in
lieu
of
the
Federal
program.
The
Federal
requirements
no
longer
applied
in
the
authorized
State,
and
EPA could
not issue permits
for
any facilities
in
a state where
the
State
was
authorized
to
issue
permits.
When
new,
more
stringent
Federal
requirements
were
promulgated
or
enacted,
the
State was obligated
to en-
act equivalent authority within
specified
time
frames.
New
federal
requirements
did
not
take
effect
in
an
authorized
State
until
the
State
adopted
the requirements as State
law.
In
contrast,
under
Section
3006(g)
of
RCRA,
42
U.S.C.
6926(g),
new
requirements
and
prohibitions
imposed
by
the
HSWA
take
effect
in authorized
States
at
the
same
time
they
take
effect
in
non—authorized
States.
EPA
is
directed
to
carry
out
those
requirements
and prohibitions
in
authorized
States,
including
the
issuance
of permits,
until
the State
is
granted
authorization
to
do
so.
While
States
must
still
adopt
HSWA—related
provisions
as
State
law
to
retain
final
authorization,
the
HSWA
requirements are applied
by EPA
95-2q 7
—6—
in
authorized
States
in
the
inter im.
Today’s
rule
is
promulgated
pursuant
to
RCRA
Sections
3004(u),
3004(v)
and
3005(t).
These
provisions
were
added
by
HSWA.
Therefore,
the Agency is
adding the requirement
to Table
1
in
Section
271.1(j)
which
identifies
the
Federal
program
requirements
that
are
promul-
gated pursuant
to
HSWA
and that
take
effect
in
all
States,
regardless
of
their
authori-
zation status.
Therefore,
while
the
Agency
could
not,
in
1984,
properly apply
the
state counterpart
of
the
federal
Part
264
regulations
to
the
subject
facility,
a
substantial
portion
of
the
impact
of
today’s
decision
has
been
undercut by developments
in federal
law during
the
pendency
of
this
permit
appeal.
Those
federal
regulations
do
apply
to
the
subject
facility
today
as
a
matter
of
federal
law,
and they have
since December,
1987.
Browning—Ferris
Industries
of
Illinois,
Inc.
v.
EPA,
PCB
84—136,
slip
op.
at 26—27
(May
5,
1988).
(Quoting
52
Fed.
Reg.
45794—96
(Dec.
1,
1987)).
Browning—Ferris
Industries
should have provided
ample
guidance
to the parties
that 40 CFR 264,
Subpart
F monitoring
requirements directly apply to Marley—Ingrid’s surface
imooundment.
As stated by the U.S.
EPA
in promulgating
its HSWA
amendments:
Section
3005(i)
of
RCRA requires
that all
surface
impoundments
...
which
received
hazardous
wastes
after
July
26,
1932,
comply
with
the
same
groundwater
monitoring,
unsaturated
zone
monitoring,
and
corrective
action
requirements
that
apply
to
new
units
Previously,
post—closure
permits
were
required
for
land
disposal
units
which closed
after
January
26,
1983,
while
new
Section
3005(i)
imposed
Part
264
Subpart
F
require-
ments
on
any
land
disposal
units
which
received wastes after July
26,
1982.
95—298
—7—
New
Section
3005(i)
makes
compliance
with
certain
Part
264
rules
a
statutory
requirement.
Section 3005(i)
subjects interim
status
regulated
units
to
those
groundwater
monitoring,
unsaturated
zone
monitoring
and
corrective
action
requirements
which
are
applicable
to new permitted
units.
The
Agency
is persuaded that the groundwater
protection
standards
of
Part
264
provide
a
more environmentally protective
mechanism
for
addressing
groundwater
protection
...
than
would
be
obtained
through
interim
status
closure
and post—closure requirements.
52 Fed.
Reg.
45794
(Dec.
1,
1987).
Therefore,
the HSWA amendments
impose the Subpart
F monitoring
requirements
on all surface
impoundment land disposal units
for
which
there
were
no closure permits issued prior
to December
1,
1987.
The federal HSWA regulations apply to all RCRA interim
status surface impoundment closure permits granted
after December
1,
1987.
The
federal amendments
impose
a more stringent “closure
by removal” standard on Marley—Ingrid than existed
in the Board’s
rules on
the date of the Agency’s permit decision.
However, the
parties
failed
to address the effect of this applicability in
their briefs.
These amendments also
impose
certain other
closure
and procedural requirements not addressed by the parties and
apparently not met by the Agency approval
involved
in this
proceeding.
As previously quoted by the Board:
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
Environmental
Protection
Act
would
have
occurred
if
the
requested
permit
had
been
issued.
Browning—Ferris
Industries
at
7
(quoting
Joliet Sand
& Gravel
Co.
v.
PCB,
163
Ill.
App.
3d
830,
833,
516
N.E.2d
955,
958
(3d
Dist.
1987)
).
In order
to properly sustain
this burden,
it was necessary for
Marley—Ingrid
to prove that its plan would have complied with the
Act and applicable regulations,
including
40 CFR 270
and 264
standards, as originally submitted
to the Agency.
Browning—
Ferris Industries
at
7 (citation omitted).
95—299
—8—
Neither
Marley—Ingrid nor
the Agency has addressed
the
requirements of
40 CFR 270 and
264.
Therefore,
the Board cannot
address whether
the plan as submitted
or
as amended by
the
Agency
complies with the Act and applicable regulations.
The Board will
vacate
the Agency permit
for
these reasons.
III.
Conclusion
In summary,
the Marley—Ingrid surface impoundment
did not
have
a closure permit prior
to December
1,
1987,
so new 40 CFR
270.1(c) has
required
its closure according
to
40 CFR 264
(corresponding to
35
Ill. Mm.
Code 724) standards since December
1,
1987.
The Act authorizes
the Agency to
impose oermit
conditions predicated
on these
federal requirements.
The Board concLudes,
as
it has observed
in
the past,
see Browning—Ferris
Industries,
No. PCB 84—136,
slip op.
at 26—
27,
that
the December
1,
1987 f~dera1 amendments
to 40 CFR
270.1(c)
apply
to Illinois interim
status facilities obtaining
Agency certification of
their closure plans after
that date.
Neither Marley—Ingrid nor
the Agency addresses compliance with 40
CFR
264
and 270 closure standards.
Under
these circumstances,
it
is
difficult
for
the Board
to
frame
an appropriate Order
to
remedy
this
situation.
In the
usual
case,
contested
permit conditions
are affirmed
in
total,
or
particular
conditions
are
reversed
and
the
permit
is
remanded
to
the Agency with instructions as
to
how
to
cure
deficiencies.
In
this case,
as
the issues were inappropriately framed by the
parties, the Board cannot provide appropriate review of
each and
every
term of
the permit and its conditions.
The only fruitful
course
in
this action
is
for
the permitting procedure
to begin
anew before the
gency.
Accordingly,
the Board vacates
the
December
11,
1987 permit.
Marley—Ingrid
is
free
to
file
a new application with
the
Agency demonstrating compliance with all relevant
regulatory
requirements.
The Agency
is
free
to evaluate the information
in
light of
the applicable procedural
and substantive standards,
and
to make
any appropriate decision.
Such decision may include
issuance
of
a
permit
with conditions
which were
at issue
here,
since
the
Board
has
not
reached
a
decision
on
the
merits
of
each
condition.
This
Opinion constitutes
the Board’s
findings of
fact
and
conclusions of
law
in this matter.
ORDER
The
Illinois
Environmental
Protection
Agency
closure
permit
of December
Il,
1987
issued
to Marley—ingrid
is hereby vacated.
IT
IS
SO
ORDERED
~5—300
—9—
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby
certify that the above Opinion and Order was
adopted on the
/~
day of
~
,
1989,
by
a
voteof
7-t:;’
.
I
Dorothy M.~unn, Clerk
Illinois Pollution Control Board
95—301