ILLINOIS

POLLUTION CONTROL BOARD

November 21, 1985

ILLINOIS ENVIRONMENTAL        

)

PROTECTION AGENCY,

Complainant,

)

PCB 83—122

JENNtSON-4~RIGHT? 

CORP.,

Respondent.

ORDER OF THE 

BOARD

(by B, Forcade):

This rnatte~comes to the Board on an August 23, 1983,

Complaint and 3uly 25, 1984, Amended Complaint filed by the

Illinois Envirortc~mtal Protection Agency (~Agency’~)against the

JerAn1sou~Wright 

Cc~:poration (~Jenriison—Wright~) and 3

Liquidating Corpcr~tion (~J.W. Liquidating’~). The Complaint

concerns 

a plant :L~i Granite City, Illinois, which manufactures

and treat:s a variet:.y of wood and wood products. The complaint

focuses on two p:c;cesses used at the plant to impregnate wood as

a preservative against the elements; one process employs creosote

as the preserving agent, the other employs pentachiorophenol.

The complaint charges that various operations at the plant since

the early 197O’.~ cor~tituteviolations in that the operations

were either not permitted or were conducted in a manner

inconsistent with statutory and regulatory requirements..

Hearing was held November 29, 1984, at which the broad

outline of a settlement agreement was discussed on the record. A

second hearing was held August 9, 1985, at which time a formal

Stipulation and Proposal for Settlement (~‘Settlement”) was

presented.

Settlement Procedures in enforcement actions before the

Board are governed by 35 Ill. Adm. Code 103.180. That regulation

addresses the contents of settlement documents, in relevant part,

as follows:

1)  A full stipulation of all material facts

pertaining to the nature, extent, and causes

of the alleged violations;

2)  The nature of the relevant parties~ operations

and control equipment;

Any explanation for past faildres to comply

and an assessment of the impact on the public

resuitlnq 

from

such noncompliance;

86 05

—2—

Details as to 

future plans for compliance,

including a description of additional control

measures and the dates for their

implementation; and

5)  The proposed penalty.

The Board finds that the Settlement fails to meet criteria #1, #3

and #4.

The Settlement. contains 18 numbered paragraphs entitled

Statement of Facts~ Paragraphs 

one

through ten describe the

facility and its past and present ownership and operations.

Paragraph 11 states that J.~. Liquidating did not have a permit

to dispose of wastes, which disposal was described in the

preceding paragraphs~ Paragraphs one through eleven would

support a finding 

waste disposal without a permit. Paragraph

12 describes a ~d:ischargeof wastewater” into water on property

of the Norfolk and Western Railway, but does not describe whether

such discharge was permitted. Paragraph 13 states the creosote

system pit may 

have

been unlined, and may have contaminated the

ground. Paragraph 

describes a failure to obtain permits for

two 10,000 gallon fuel oil storage tanks and, construction and

operating permits for the pentachlorophenol system. Paragraph 15

describes prior permitting activity regarding the plant.

Paragraph 16 describes utilization of an unpermitted creosote

water separator. Paragraph 17 describes J.~. Liquidating’s

failure to submit a Part A application to USEPA for disposal of

hazardous waste. And finally, Paragraph 18 describes a failure

to notify the Agency of transfer of ownership of a facility where

hazardous waste operations have been conducted.

This factual representation presents several difficulties.

First, the generalized permitting statement in Paragraph 14 has

made 

difficult for the Board to determine which activities

were permitted and which were not and the time periods

involved. The Board would appreciate clarification. Second, and

more importantly, the Board notes that this proceeding involves

unpermitted disposal of hazardous waste, including what appears

to be acutely hazardous waste*, with factual statements about

possible contamination (Paragraph 13). However, there are no

facts before the Board relating to this extremely important

subject. The Board finds the facts presented are inadequate on

this matter.

The settlement describes wastes from three materials, creosote,

pentachlorophenol, and coal tar. The pentachiorophenol wastes

appear to be Acute Hazardous Wastes: Section 721.13 (F020 

The

creosote and coal tar wastes appear to be Hazardous Wastes:

Section 721.133 (f) rJ051  and Part 721, Appendix H.

66~406

Another major problem area is the “Compliance Program.”

This portion of

the Settlement says, in essence, to find out what

is wrong, and fix it, Any disputes regarding

interpretation 

are

to be brought to the Board under the “Dispute Resolution”

provisions.

While this is a laudable concept, it lacks the

“details” including “control measures” and “dates for their

implementation” required by criterion five of the Board’s

Settlement Procedure regulation. Moreover, unless the parties

agree in the future on the scope, detail, and timing of the

compliance effort the Board is left with very little guidance

other than “appropriate remedial action” (Settlement, p. 8).

As a 

final

p~:oh1emarea, the Board notes that the Settlement

may violate existing RCRA procedural rules. Specifically 35 Ill.

A~dm. Code 103.260(b)(4) may require the Board to follow the

procedures of 35 Ill. Adm. Code Part 103, Subpart I. Section

103.260 provides~

Section 103.260

Purpose, Scope and

Applicability

a)  This Subpart 

applies when the

Board finds in an interim

order

that 

an enforcement action involves issuance or

modification of a RCRA permit;

Enforcenent actions which involves issuance or

modification of a

RCRA 

permit include those in which, to

grant complete relief, it appears that the Board will

have to:

1)  revoke a RCRA permit; or

2)  order a RCRA permit issued or modified; or

3)  enter 

order which could require actions which

would be different from the conditions of a RCRA

permit or 35 Iii. Adm, Code 724 or 725; or

4)  enter an order directing facility closure or

modification after a finding that a facility was

operating without a

RCRA 

permit and that one was

required,

c)  These procedures provide methods by which the Board will

formulate a compliance plan, and if necessary, direct

the issuance or modification of a RCRA permit.

It would appear 

in this case that the Board

could find the

facility was operating without a RCRA permit and that one was

required,

Also, the compliance program could require facility

closure or modification, If this occurred, the Provisions of

Subpart I would clearly apply.

.~“or

the ~aqoing reasons, the Board must reject the

Stipulation and Proposal

for Settlement in its entirety. As this

68-407

enforcement action is several years old, the Board Orders it to

proceed to hearing expeditiously. Hearing must be scheduled

within 90 days and commenced within 120 days,

Not later than December 15, 1985, the parties are directed~

to file briefs on whether the provisions of 35 Ill. Adm, Code

Part 103, Subpart I apply to this proceeding and whether,

pursuant to Section 103.260(a) an Interim Order to that effect is

appropriate.

IT IS SO ORDERED,

I, Dorothy 

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the~~ day of  

1985, by a vote

of ~-i-o

Dorothy M. Gunn, lerk

Illinois Pollution Control Board

66~408