ILLINOIS POLLUTION CONTROL BOARD
March 18, 1999
IN THE MATTER OF:
PETITION OF WOOD RIVER REFINING
CO., A DIVISION OF EQUILON
ENTERPRISES LLC, f/k/a SHELL WOOD
RIVER REFINING CO., FOR AN
ADJUSTED STANDARD FROM 35 ILL.
ADM. CODE 725.213 AND 725.321
)
)
)
)
)
)
)
)
AS 98-6
(Adjusted Standard - RCRA)
JAMES T. HARRINGTON AND CHARLES W. WESSELHOFT, ROSS & HARDIES,
APPEARED ON BEHALF OF THE PETITIONER; and
CHRISTOPHER P. PERZAN, ILLINOIS ENVRIONMENTAL PROTECTION AGENCY,
APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY.
OPINION AND ORDER OF THE BOARD (by K.M. Hennessey):
Before the Board is a petition for an adjusted standard filed by Wood River Refining
Co. (WRRC).
1
WRRC seeks an adjusted standard under 35 Ill. Adm. Code 725.213 so it may
continue operating a wastewater pond (Pond #2) that formerly was a hazardous waste surface
impoundment. Pond #2 no longer receives hazardous waste. The Board finds that WRRC has
met the requirements for an adjusted standard under Section 725.213, and grants the petition.
BACKGROUND
WRRC owns and operates a petroleum refinery in Roxana, Madison County, Illinois.
Originally opened in 1918, WRRC’s facility is the largest petroleum refinery in the state and
supplies approximately 12% of the refined petroleum consumed in the state. Pet. at 3. On
average, the refinery discharges 7.9 million gallons per day of treated process, sanitary, and
storm waters from a wastewater treatment plant through Outfall #001 into the Mississippi
River. The wastewater treatment system consists of primary and secondary treatment
facilities. Primary treatment facilities perform neutralization, oil/water separation, dissolved
air flotation and equalization. Secondary treatment facilities consist of an activated sludge
biological treatment system, an aeration basin (Pond #2), and clarifiers. Pet. at 4.
1
When it originally filed its petition, petitioner was known as Shell Wood River Refining Co.
While this matter was pending, petitioner’s name changed through corporate restructuring. In
an order dated November 23, 1998, the hearing officer granted an oral motion made by
petitioner at the hearing on November 19, 1998, to amend the caption to reflect the change in
petitioner’s corporate name.
2
Pond #2 occupies 1.5 acres, is approximately 12 feet deep, and has a total holding
capacity of 4.6 million gallons. It is lined with a three-inch layer of asphalt. Pet. at 5. Under
the Toxicity Characteristic Leaching Procedure (TCLP), applicable as of September 1990, the
wastewater discharged into Pond #2 was considered hazardous based on its concentrations of
benzene. Resp. at 1. Pond #2 was therefore considered a hazardous waste surface
impoundment. Tr. at 10. On March 22, 1991, WRRC’s predecessor corporation submitted
Resource Conservation and Recovery Act (RCRA) Part A and Part B applications for Pond #2
and one other pond as a Class Three modification to the existing RCRA Part B permit. Pet. at
5. Since then, Pond #2 has operated under interim status regulations. Pond #2 continued in
hazardous waste service until the end of March 1995, when a tank-based biological system was
placed into operation. Tr. at 10; Pet. at 5. Pond #2 was then converted to nonhazardous
treatment. Pet. at 6. WRRC needs to keep the pond in service because the treatment the pond
provides is needed to comply with WRRC’s National Pollution Discharge Elimination System
(NPDES) permit. Pet. at 9.
Although the Illinois Environmental Protection Agency (Agency) and WRRC differ in
their analyses, both agree that Pond #2, a former hazardous waste management unit, is subject
to closure. Resp. at 2. Section 725.213 provides, however, that a former hazardous waste
management unit may receive non-hazardous waste if the owner or operator meets certain
requirements. These requirements are evaluated under the Board’s adjusted standard
procedures.
PROCEDURAL HISTORY
WRRC commenced this proceeding by filing a petition for an adjusted standard on
March 16, 1998. In accordance with 35 Ill. Adm. Code 106.711, notice of WRRC’s petition
was published in the
Alton Telegraph
on March 23, 1998. On April 6, 1998, the Board
received a request for a hearing from Doris A. Dhue and Forrest L. Dhue. The Agency filed
a response to the petition on June 1, 1998.
2
In its response, the Agency recommended that the
petition be granted, subject to certain conditions.
A hearing was held in Edwardsville, Illinois, on November 19, 1998. In addition to
WRRC and the Agency, several members of the public, including the Dhues, appeared and
made comments on the record. WRRC and the Agency filed posthearing comments; WRRC
was granted leave to file a response to the Agency’s comments.
2
Under 35 Ill. Adm. Code 106.714(a), the Agency’s recommendation was due within 30 days
of the filing of the petition; however, the hearing officer extended this date at the request of
the Agency.
3
Amendment of Petition
In its posthearing comments, WRRC stated that it “amend[ed] its petition” to include a
request for an adjusted standard under 35 Ill. Adm. Code 724.213, as well as 725.213.
WRRC Comments at 6. Section 725.213 concerns only interim status RCRA units; separate
regulations under Part 724 govern permitted RCRA facilities. WRRC’s RCRA permit
application is pending before the Agency. When and if the permit is issued, Part 724 will
govern and absent an adjusted standard under Section 724.213, Pond #2 will have to be
closed. The applicability of Section 725.213 and an adjusted standard from the same ceases
once the Part B permit is issued.
The Board cannot accept this amendment. 35 Ill. Adm. Code 106.715 provides that
“[t]he petitioner may amend its petition prior to the close of the hearing if a hearing is held or
prior to the Board’s decision if a hearing is not held.” WRRC’s amendment, submitted after
the hearing, is therefore untimely. We note that members of the public requested the hearing
in this matter when it was publicly noticed, and several participated at the hearing.
Furthermore, there are no special circumstances here that would justify departing from our
procedural rules.
WRRC and the Agency have cited two Board opinions in support of amendment: In re
Petition of Olin Corp. (February 27, 1992), AS 90-8, and In re Petition of Amoco Oil Co.
(March 11, 1992), AS 91-4. Both cases are distinguishable, and neither provides an exception
to Section 106.715.
Olin was the first case in which the Board was asked to grant an adjusted standard
under Sections 724.213 and 725.213. The Board took the opportunity to discuss the
interrelation of the two sections, and noted that the measure of the sufficiency of the
contingent corrective measures plan is identical in both 35 Ill. Adm. Code 724 and 725;
therefore, requiring separate adjusted standard petitions would be, in part, repetitious and
uneconomical. Olin, AS 90-8, slip op. at 7. In Olin, however, the adjusted standard petition
sought relief under both sections; there was no need for an amendment to add a request for
additional relief. While the statements in Olin may be correct, Olin does not create an
exception to the Board’s otherwise applicable procedural rules.
In Amoco, the petitioner sought relief from provisions of Part 725, but asked that the
Board alternatively grant relief under Part 724 if it determined that to be the appropriate
course. The Board determined that the appropriate course was to grant relief under both parts.
In Amoco, however, (a) the request for alternative relief was included in the petition, so there
was no issue of amendment of the petition, and (b) there was no hearing, so even if the
Board’s grant of relief under both sections was considered based on an amendment of the
petition the action would not have violated Section 106.715. Thus Amoco is also
distinguishable from the present case.
In sum, the Board cannot entertain the amendment proposed by WRRC. To keep Pond
#2 in operation after a permit is issued, WRRC will have to separately petition for and obtain
4
an adjusted standard under Section 724.213. As noted by WRRC, Section 724.213 is
substantially identical to Section 725.213, so the evidence supporting an adjusted standard
under the latter section should also support an adjusted standard under the former.
STATUTORY AND REGULATORY FRAMEWORK
Section 725.213 allows a hazardous waste surface impoundment which does not meet
certain liner and leachate collection system requirements (such as WRRC’s Pond #2) to receive
non-hazardous waste, but only if the owner or operator receives an adjusted standard in
accordance with Section 725.213(e). Section 28.1(a) of the Environmental Protection Act
(415 ILCS 5/28.1(a) (1996)) authorizes the Board to grant adjusted standards from rules of
general applicability. Section 28.1(b) authorizes the Board, in adopting a rule of general
applicability, to specify the level of justification required of a petitioner for an adjusted
standard from that rule.
3
Because Section 725.213 specifies a level of justification applicable
to adjusted standards under that section, the Board evaluates WRRC’s petition based on the
criteria found in Section 725.213(e), which provides in relevant part:
e)
Surface impoundments. In addition to the requirements of
subsection (d) above, an owner or operator of a hazardous
waste surface impoundment which is not in compliance
with the liner and leachate collection system requirements
in Section 725.321(a) shall receive non-hazardous wastes
only as authorized by an adjusted standard pursuant to this
subsection.
1)
The petition for adjusted standard must include:
A)
A plan for removing hazardous wastes; and
B)
A contingent corrective measure plan.
2)
The removal plan must provide for:
A)
Removing all hazardous liquids; and
B)
Removing all hazardous sludges to the
extent practicable without impairing the
integrity of the liner or liners, if any; and
3
Section 28.1(c) sets forth criteria a petitioner must establish to receive an adjusted standard
where the regulation of general applicability does not specify a level of justification. Because
the regulation involved in this proceeding does specify a level of justification, we do not apply
Section 28.1(c).
5
C)
Removal of hazardous wastes no later than
90 days after the final receipt of hazardous
wastes. The Board will allow a longer
time, if the owner or operator
demonstrates:
i)
That the removal of hazardous
wastes will, of necessity, take
longer than the allotted period to
complete; and
ii)
That an extension will not pose a
threat to human health and the
environment.
3)
The contingent corrective measures plan:
A)
Must meet the requirements of a corrective
action plan under Section 724.199, based
on the assumption that a release has been
detected from the unit.
B)
May be a portion of a corrective action
plan previously submitted under Section
724.199.
C)
May provide for continued receipt of non-
hazardous wastes at the unit following a
release only if the owner or operator
demonstrates that continued receipt of
wastes will not impede corrective action.
D)
Must provide for implementation within
one year after a release, or within one year
after the grant of the adjusted standard,
whichever is later.
4)
Release. A release is a statistically significant
increase . . . in hazardous constituents over
background levels, detected in accordance with the
requirements in Subpart F.
* * *
6
8)
Adjusted standard procedures. The following
procedures must be used in granting, modifying or
terminating an adjusted standard pursuant to this
section.
A)
Except as otherwise provided, the owner or
operator shall follow the procedures of 35
Ill. Adm. Code 106.Subpart G to petition
the Board for an adjusted standard.
B)
Initial justification. The Board will grant
an adjusted standard pursuant to subsection
(e)(1), above, if the owner or operator
demonstrates that the removal plan and
contingent corrective measures plans meet
the requirements of subsections (e)(2) and
(3), above.
C)
The Board will include the following
conditions in granting an adjusted standard
pursuant to subsection (e)(1), above:
i)
A plan for removing hazardous
wastes.
ii)
A requirement that the owner or
operator remove hazardous wastes
in accordance with the plan.
iii)
A contingent corrective measures
plan.
iv)
A requirement that, in the event of a
release, the owner or operator shall,
within 35 days, file with the Board
a petition for adjusted standard;
implement the corrective measures
plan; and, file semi-annual reports
with the Agency.
v)
A condition that the adjusted
standard will terminate if the owner
or operator fails to: implement the
removal plan; or, timely file a
7
required petition for adjusted
standard.
vi)
A requirement that, in the event the
adjusted standard is terminated, the
owner or operator shall commence
closure of the unit in accordance
with the requirements of the closure
plan and this Part.
ANALYSIS
WRRC is entitled to an adjusted standard to keep Pond #2 in service for the purpose of
receiving non-hazardous waste if its removal plan and contingent corrective measures plan
meet the requirements of Section 725.213(e). See Section 725.213(e)(8)(B). We therefore
evaluate WRRC’s removal and contingent corrective measures plans for compliance with the
requirements of Section 725.213(e).
Removal Plan
Essentially, the removal plan must provide for the removal of all hazardous liquids and
all hazardous sludges from the pond. Section 725.213(e)(2). WRRC’s petition does not
require any specific actions under the removal plan, because the petitioner has already
demonstrated that there are no hazardous wastes to be removed. WRRC states that upon
installation of the first stage biological treatment unit during the first quarter 1995, the flow
coming into the pond ceased to be hazardous and any hazardous liquid left over from the once-
hazardous influent was treated to reduce the benzene concentration to nonhazardous levels by
the aggressive biological treatment that formerly occurred in Pond #2. Pet. at 9. Further,
WRRC notes that its sampling indicates that the sludge in Pond #2 is not hazardous,
i.e.,
the
concentration of benzene in the sludge is less than 0.5 mg/L. Pet. Exh. 4, Attachment 3.
Since only hazardous wastes must be removed under the plan that Section 725.213(e)(2)
requires, no further removal of liquid or sludge from the pond is necessary.
In its response, the Agency agreed with WRRC concerning the removal plan for Pond
#2 since the plan requirements are satisfied through documentation of the absence of hazardous
liquids, sludges or wastes. Resp. at 3. However, the Agency raised concern regarding an
unlined inlet ditch appurtenant to Pond #2 that conveys the treated effluent from the first stage
biological unit to the pond. WRRC considers the ditch a part of the pond and not a separate
waste management unit. Tr. at 31. The Agency stated that it was concerned with the
possibility of hazardous sludges remaining in the inlet ditch, since the petition did not include
any sludge sampling data for the ditch. Resp. at 4. To address the Agency’s concern, WRRC
implemented a sampling program in October 1998 to test sludges and underlying clay in the
inlet ditch. Tr. at 28. The tests indicated no hazardous waste in the ditch.
Id
.; Pet. Exh. 4,
Attachment 3.
8
In its posthearing comments, the Agency argues that the data submitted by WRRC may
not be sufficiently representative for the Board to find that no hazardous waste remains in the
ditch, but the Agency nevertheless still recommends granting the adjusted standard (with
certain conditions). In addition, the Agency notes that although WRRC tested the sludge in
the ditch and the clay underlying the ditch, there is no information about possible
contamination of soil due to lateral migration of liquid hazardous waste through the soil
overlying the clay layer. Under Section 725.213(e)(2), however, the removal plan is only
required to provide for removal of hazardous liquids and hazardous sludges. Soil
contaminated due to lateral migration of waste falls into neither of these categories. WRRC’s
removal plan is thus not required to address such contamination. We note that the Agency can
address any potential soil contamination in the permitting process.
Regarding the inlet ditch sampling, the Board finds that the data submitted by WRRC is
comparable to the data submitted regarding sludge in pond #2 and is sufficient for the Board to
conclude that no removal of sludge is required. The Board concludes that the removal plan
meets the requirements of Section 725.213(e).
Contingent Corrective Measures Plan
As its contingent corrective measures plan, WRRC submits the current groundwater
monitoring plan developed under interim status requirements (Pet. Attachment 9) and the
corrective measures plan developed in accordance with the requirements of WRRC’s RCRA
Part B permit (Pet. Attachment 5 at G-8 to G-10). WRRC commits to continue the monitoring
program for the duration of the adjusted standard. The Agency believes these measures are
sufficient to meet the contingent corrective measures plan requirements of Section 725.213.
The Board agrees and finds that WRRC’s contingent corrective measures plan is sufficient to
support the grant of an adjusted standard.
The Board notes that the documents relied upon by WRRC were prepared a number of
years ago. The Board has included a provision in the adjusted standard to provide for updating
of these documents if necessary.
Conditions on Adjusted Standard
In several instances, WRRC has agreed to inclusion of terms beyond the minimum
requirements of Section 725.213(e)(8)(C). The Board has retained these conditions in the
adjusted standard as conditions 4 and 5, along with a requirement in condition 3 that the
adjusted standard terminates if WRRC does not implement the contingent corrective measures
plan. Condition 4 requires WRRC to sample influent to the pond monthly; the Board has
added provisions requiring WRRC to retain sampling results for a period of three years, and to
inform the Agency if an exceedence is detected.
At the hearing, several members of the public expressed concerns with potential threats
to water supplies in the event of a release, including migration of contaminants from an
unlined inlet ditch appurtenant to Pond #2. In its posthearing comments, the Agency asked the
Board to include a condition to the adjusted standard requiring WRRC to line the inlet ditch.
9
The Agency argues that this condition is appropriate and permissible under the provision of
Section 28.1(a), that “[i]n granting . . . adjusted standards, the Board may impose such
conditions as may be necessary to accomplish the purpose of this Act.” It its reply to the
Agency’s comments, WRRC argues that the issue should be dealt with in the permitting
process.
The Board concludes that the issue of whether the inlet ditch should be lined is more
appropriately dealt with in the permitting process than in this adjusted standard. Under
Section 725.213 the Board’s inquiry is limited to the sufficiency of the removal and contingent
corrective measures plans. This proceeding was not intended to include evaluation of
operations, nor is such an evaluation necessary in this proceeding; the permitting process
provides an ample mechanism by which the Agency can ensure that groundwater is adequately
protected. We note, furthermore, that the Agency’s witness indicated that the Agency would
evaluate the necessity of a liner for the ditch as part of the permitting process. Tr. at 80. The
Board therefore will not condition the adjusted standard on the installation of a liner in the
inlet ditch.
The Agency has also requested a condition requiring WRRC to discharge wastewater
directly into Pond #2 in the event the staged biological treatment unit goes off-line. This
condition, like lining the ditch, is concerned with operations, and is more appropriately
addressed in the permitting process. The Board has therefore not included this condition in the
adjusted standard.
Finally, the Agency has asked that the adjusted standard include the following
statement: “In no event shall [WRRC] allow the introduction of hazardous wastewaters into
any portion of or appurtenance to Pond 2 which is unlined.” WRRC has objected to this
language. The Agency has acknowledged that this proposed language merely restates
obligations to which WRRC is already subject. Tr. at 82-83. The Board concludes that this
language is unnecessary and has not included it in the adjusted standard. We stress that in no
way should this omission be interpreted to relieve WRRC from any duty to which it is
otherwise subject under the Act or hazardous waste regulations.
CONCLUSION
The Board concludes that WRRC has met the requirements for an adjusted standard
under Section 725.213(e). The Board’s order below generally follows the terms of the draft
adjusted standard submitted by WRRC as Attachment A to its posthearing comments, with
some modifications. WRRC’s pledge to continue groundwater monitoring for the duration of
the adjusted standard is now specifically included as a condition of the adjusted standard. In
accordance with Section 725.213(e)(8)(C)(iii), the Board has included a provision specifically
incorporating the contingent corrective measures plan as part of the adjusted standard. We
have also modified the language to more closely track the requirements of Section
725.213(e)(8)(C).
10
ORDER
Wood River Refining Company, a division of Equilon Enterprises, L.L.C., located
near Roxana, Illinois, in Madison County, is hereby granted an adjusted standard under 35 Ill.
Adm. Code 725.213(e) for its Treatment Pond #2 (which includes the inlet ditch as an
appurtenance) under which Pond #2 may operate as a second-stage biological treatment unit
(including nitrification) for treating nonhazardous wastewater, without closure. For the
purposes of this adjusted standard, the contingent corrective measures plan consists of the
applicable provisions of Attachments 5 and 9 to the petition (including any amendments to
those documents approved by the Agency). This adjusted standard is subject to the following
conditions:
1.
Wood River Refining Company must continue the groundwater monitoring
program described in Attachment 9 to the petition for the duration of this
adjusted standard.
2.
In the event of a release from the pond, Wood River Refining Company must:
a.
File a petition for an adjusted standard with the Board within 35 days;
b.
Implement the corrective measures plan; and
c.
File semi-annual reports with the Agency.
3.
If Wood River Refining Company fails to timely file a required adjusted
standard petition with the Board and/or fails to implement the contingent
corrective measures plan, this adjusted standard will terminate and Wood River
Refining Company must commence closure of Pond #2 in accordance with the
closure plan and 35 Ill. Adm. Code 725.
4.
Wood River Refining Company must test the influent to Pond #2 for benzene
using the Toxicity Characteristic Leaching Procedure on a monthly basis.
Wood River Refining Company must keep test result records for a minimum of
three years, and provide the same to the Agency upon request. If testing
indicates the presence of benzene at a concentration exceeding the limit set in 35
Ill. Adm. Code 721.124, Wood River Refining Company must notify the
Agency within 24 hours.
5.
In the event the Staged Biological Treatment tank system becomes inoperable or
malfunctions, Wood River Refining Company must take all appropriate
measures to prevent introduction of hazardous wastewaters into Pond #2.
IT IS SO ORDERED.
11
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 18th day of March 1999 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
