ILLINOIS POLLUTION CONTROL BOARD
July 16,
1987
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
PROPOSED RULE.
SECOND NOTICE.
PROPOSED 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—Hill American Lock Joint,
Inc.
(GHA)
for site
specific relief
from the daily,
intermediate, and final
cover
requirements of
35
Ill. 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,
1965,
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 hpril
9,
1987.
79.236
—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:
“GHA 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 Gitford-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.
By klearing 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
79-237
—3—
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.
This Order does
so.
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
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 track 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
79-238
—4—
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 ~innebago 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 “Waiver”
of
the daily cover requirements results
in a cost savings on the
order
of $1300-$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’
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 rninimus 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
79-239
—5—
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
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 GHA
in light
of
the ownership change.
Response To
First Notice 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)
79-240
—6--
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
Ill.
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 Section 27
and 28
of
this Act,
or
so as
to affect or
impair
the validity of any
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
situation
existing
in
the
persons
or
objects
upon
which
the
classification
rests.
This
was
also expressed
by
this
court
in
People
ex
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
79.241
—7—
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 requireCretex
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.
The
final 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 occurence in other
types of actions
before
the Board, such as variance proceedings, when an ownership
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.
It is
for
all of
the forgoing reasons that the Board directs
submission of the rules
as proposed below to JCAR for its second
notice review.
ORDER
The Board hereby directs the Clerk to cause submittal of the
following regulatory proposal
to the Joint Committee on
Administrative Rules:
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
i:
SOLID HASTE AND SPECIAL WASTE HAULING
79-242
—8—
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 35 Ill.
Adm. Code
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
shall limit waste disposal
to the types of
waste disposed
of pursuant to variance granted
in
PCB 83—125:
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.
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 capable of supporting
vegetative cover.
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
79-243
—9—
additional
18 inches
of
final
cover material
as
specified
in subsection
(b)(4) above.
IT IS SO ORDERED.
1,
Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify
~t
the abo
e
P oposed Opinion and Order
was adQpted
on
the
/~‘~dayof
_______________,
1987, by a vote
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
79.244