ILLINOIS POLLUTION CONTROL
BOARD
March 8, 1984
WATTS TRUCKING SERVICE, INC.,
)
)
Petitioner,
)
v.
)
PCB 83—167
)
CITY OF ROCK ISLAND,
)
)
Respondent.
MR. THOMAS J. IMMEL, BURDITT &
IZ’SMEL,
APPEARED FOR PETITIONER;
MR
•
BERNARD C. GILLMAN, ATTORNEY AT
LAW, APPEARED FOR
RESPONDENT;
MR. JAMES YOHO,
ATTORNEY AT
LAW,
APPEARED
FOR
INTERVENORS.
OPINION
AND
ORDER OF THE BOARD (by D. Anderson):
This matter comes before the Board upon an appeal of
the denial of approval of site location suitability for a
new hazardous waste treatment facility by the City Council
of the City of Rock Island (Council). The appeal was filed
on November 15, 1983 by the applicant, Watts Trucking Service,
Inc. (Watts). Site location suitability approval by local
government is required by Section 39(a)(2) of the Environmental
Protection Act (Act). The decision may be appealed to the
Board pursuant to Section 40.1.
The
Council held its first public hearing on the request
on August 8, 1983. Representatives of Watts presented the
request and supporting materials to the Council, and answered
questions from the Council and public.
Citizens commented
for and against approval of the site.
References to
the
transcript of the August
8 hearing will be preceded by a
N111,
to distinguish them from the ensuing hearings.
The second and third public hearings were held on
October 3 and October 10, 1983. References to this and
ensuing City Council transcripts will be prefaced with a
“II” (11-528). The engineering
firm
of ~urns and McDonnell,
employed by the City to make an independent evaluation of
the project, recommended that the Council approve the site
location. Representatives of the firm answered
questions
from the Council, Watts and the public (11—20).
Opponents presented two technical witnesses in opposition
to the siting (11-279, 353,
449).
The Mayor of a neighboring
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town testified concerning operating practices at a nearby
landfill operated by Watts (11-343). An officer and an
employee of an adjoining factory testified in opposition
(11—487, 507). Citizens made statements in opposition (II—
511). The League of Women Voters made a statement in support
of the location (11-261). There is written comment in the
Council record, including letters from industry and civic
groups supporting the siting.
The Council voted by a majority of 5 to 2 to deny the
site location approval on October 12, 1983 (11—528). A
written decision was entered on October 13, 1983.
The appeal was filed with the Board on November 15,
1983.
On January 17, 1984 Cathryn Braet, Jane Evans, Delores
Smith, Barbara Wachtel and Theresa Williams filed an applica-
tion to intervene, which was granted by the Hearing Officer
over Watt’s objection at the public hearing held January
26, 1984 (111—4). The Hearing Officer is affirmed.
No additional testimony was presented at the Pollution
Control Board hearing.
Fundamental Fairness
At the beginning of the Council hearings the Mayor
announced that there would be no questions from the audience
(1-2). However, extensive cross-examination and presentation
of rebuttal testimony was allowed (1—82, 11—61). The inter—
venors did not contend that there were any procedural
defects before the City Council (Brief filed January 27,
1984). The Board finds that the procedures used before the
Council were fundamentally fair.
Facility
The facility will be described in greater detail below.
It is to be located in an industrial tract in Rock Island,
east of Centennial Expressway, north of Servus Rubber, west
of certain railroad tracks and south of Sixth Avenue (1—8).
Briefly, it is to be a hazardous waste treatment operation
which is to treat aqueous wastes prior to disposal elsewhere.
Wastes will be received by truck, but the treatment operation
will be similar to physical-chemical wastewater treatment
plants found at many industrial sites (11—36, 392). Wastes
will include those which are typical of metal finishing,
coating and plating operations. Wastes will include aqueous
acids and bases, possibly containing heavy metals, dichromate,
cyanide, sulfide, oil and solvent residues (1-17, 28; Permit
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application, p. 133). Treatment processes will include oil
and grease removal, solvent removal, neutralization of acids
or bases, precipitation, separation of sludges, oxidative
destruction of cyanide, filtration and reverse osmosis for
final purification of wastewater (Permit Application, p. 21,
131).
The principal output, over 80, will be highly purified
water which will be offered for sale as boiler feed water
or discharged in batches to the City sewer (1—30, 11—197).
Sludges and non-aqueous wastes will be shipped off-site for
disposal elsewhere (Permit Application, p. 48).
Criteria for Approval
Site location suitability approval by local governing
bodies is pursuant to Section 39.2(a) of the Act, which
provides as follows:
The county board of the county or the governing
body
of
the municipality, as determined by paragraph (c) of
Section 39 of this Act, shall approve the site location
suitability for such new regional pollution control
facility only in accordance with the following criteria:
1. the facility is necessary to accommodate the waste
needs of the area it is intended to serve;
2. the facility is so designed, located and proposed
to be operated that the public health, safety and
welfare will be protected;
3. the facility is located so as to minimize incompat-
ibility with the character of the surrounding area
and to minimize the effect on the value of the
surrounding property;
4. the facility is located outside the boundary of
the 100 year flood plain as determined by the
Illinois Department of Transportation, or the site
is flood-proofed to meet the standards and require-
ments of the Illinois Department of Transportation
and is approved by that Department;
5. the plan of operations for the facility is designed
to minimize the danger to the surrounding area
from fire, spills, or other operational accidents;
and
6. the traffic patterns to or from the facility are
so designed as to minimize the impact on existing
traffic flows.
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Council Decision
On October 13, 1983 the Rock Island City Council entered
a written decision denying approval of the site location
suitability, finding that it failed to meet criteria 2, 3, 5
and 6. No more specific reasons or findings of fact were
contained in the written decision. However, the transcript
of
the
October 12,
1983 Council meeting discloses the follow-
ing reasons, given by individual Council members:
1. The financial burden of cleanup, monitoring and
on—site spills (11—530, 536).
2.
The financial burden of off—site spills (11—531,
532).
3. Proximity of the site to the downtown area (II—
531, 535).
4. Proximity of the site to the wastewater treatment
plant (11—531).
5. Location in a densely populated area (11—545).
6. Lack of information on untreated wastes to be
stored on the site (11—532).
7. Inadequate information concerning liners (11-532).
8. Failure of the Environmental Protection Agency to
appear at later hearings (11—533).
9. Inadequate frequency of Agency inspections (II—
533).
10. Traffic patterns (11—535).
11. Inadequate information concerning operations and
maintenance (11—536, 545, 547).
12. Failure of Illinois Department of Public Health
to
answer a Councilperson~s question concerning
the
wastes (11—539).
13. Failure to provide test results of effluent and
emissions (11—546).
14. Failure to provide data on similar treatment
facilities (11—546).
15. Possible lack of maintenance of the scrubbers (II-.
547).
57-28
—5—
These are, of course, concerns voiced by individual
Council members rather than findings made by the Council as
a body. The Board has relied in part on these statements to
give it guidance in reviewing the evidence in the absence of
specific findings by the Council as a collective body.
The determinations of the local governing body are
generally deemed conclusive. The Board is not allowed to
determine issues independently, to substitute its own judgment
or to re—weigh the evidence.
The Board’s role is to determine
whether the local governing body’s conclusions concerning
the criteria were against the manifest weight of the evidence
(City of East Peoria et al. v.
IPCB and Waste Management of
Illinoil, Inc., 17 iii. App. iFd 673,~EirdDistrict, August 23,
1983). The Board will therefore review the evidence concern-
ing each criterion to determine whether the Council’s decision
is against the manifest weight of the evidence. The Board
will address the criteria in an order more convenient than
numerical: 1, 4, 3, 6, 5 and 2.
Waste Needs and Flood Plain (Criteria 1 & 4)
The failure of the Council to list criteria 1 and 4 in
its decision implies that it found that the site met these
criteria pertaining to waste needs of the area and location
outside the 100 year flood plain. These criteria are not at
issue in this appeal.
Surrounding Area (Criterion 3)
As noted above, the facility is to be located on a
tract surrounded by Centennial Expressway, Servus Rubber
Co., railroad tracks and Sixth Avenue in Rock Island (1—8).
A paint factory and a battery factory formerly occupied the
site, which is zoned for general industrial use, which use
would include the proposed facility (1—8, 34, 11-15, 224).
Servus Rubber Co. utilizes flammable hazardous materials to
produce rubber boots adjacent to the site (11—15, 488, 499).
Organic vapor concentrations in the plant are vented to the
atmosphere through open windows (11—500, 502). The City’s
wastewater treatment plant is close to the site (1—35, II-
15). There are three plating plants in the neighborhood
which generate wastes like those to be treated (1-84).
The surrounding area includes residences, although it
has been losing its residential character since construction
of the raised highway resulted in destruction of many resi-
dences, and cut those remaining off from adjacent areas (I-
11, 35, 59). There are still about 31 houses in the area
(1-59). The closest residence is about 400 feet from the
facility boundary (11-15, 227). About 5700 people live
57-27
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within one—half mile of the facility (1—60, 11—212, 223).
Neighboring residents were of the opinion that it would
reduce their property values (1-59, 67).
The vice-president of operations for the Servus Rubber
Co. plant testified that it would be difficult to evacuate
the Servus plant in the event of an accident at the facility
(11—489). He believed that the presence of the facility
would reduce the value of the Servus property (11—492, 497,
508, 524).
Section 39.2(a)(3) provides that the local governing
body is to determine site location suitability in part
according to the following criterion:
the facility is located so as to minimize incompati-
bility with the character of the surrounding area and
to minimize the effect on the value of the surrounding
property.
One of the Council members cited the proximity to the
City’s wastewater treatment plant as a reason for denial
(11—531). As noted previously, the facility is to be a
physical—chemical wastewater treatment plant to which waste—
water would be trucked instead of transported in pipes.
The proximity of the City’s biochemical wastewater treatment
plant tends to support the compatibility of the proposed
facility with the surrounding area.
Three potential dangers of the facility to the surrounding
area, which are discussed in greater detail below, include:
the danger of fire; emissions of organic materials from
solvent separation and storage; and, emission of hydrogen
cyanide or sulfide gas from accidental mixing of acid wastes
with wastes containing cyanide or sulfide. Servus Rubber
Co. poses a similar, if not greater, danger of fire (II—
500). The proposed facility will avoid excessively flammable
materials, and will have extensive fire protection design
and equipment (1-19, 11-60). Servus Rubber emits organic
materials through open windows (11-502), while the proposed
facility would vent organic emissions through activated
charcoal for removal (1-19). The dangers of creation of
hydrogen cyanide or sulfide gas is always present in indus-
trial operations using cyanides or suifides, such as plating
operations. The facility will provide safeguards against
mixing and for venting of all tanks and reactjon vssei~ to
a caustic scrubber capable of removing hydrogen cyanide and
sulfide (1—18, 11—22, 59).
The criterion calls for minimization of incompatibility
with the surrounding area. Although the area was once more
57-28
—7-.
residential, its use has now been dedicated to transporta-
tion corridors, with the enclosed area n~ industrial in
character. The adjacent Servus Rubber plant uses hazardous
materials, and plating operations in the area produce many
of the wastes to be treated. The record contains little
support for determining that the facility would be other
than compatible with the character of the surrounding area,
and it certainly is located so as to minimize any incompat-
ibility.
The criterion also calls for minimization of effect on
the value of surrounding property. Although further industrial
development could arguably decrease the value of nearby
residences as residences, industrial development of the area
has already occurred. More specifically, the site itself
has already been used for industrial purposes, as a paint
factory and a battery factory (1-8). This project may
attract other industry which would utilize its waste treat-
ment services or boiler feed water. This arguably could
also have a positive impact on the value of surrounding
property.
As noted, Servus Rubber itself poses risks similar to
those alleged to be posed by the proposed facility. The
claims that Servus Rubber’s property might be devalued must
be considered in this light. It could also benefit from
the
availability of waste treatment service and boiler water,
and general industrial development of the area.
The criterion calls for the facility to be located so
as to “minimize” the incompatibility with the surrounding
area and the effect on value, but does not allow for rejec-
tion simply because there might be some reduction in value.
This record clearly shows that the applicant’s proposed
location minimizes the effect on the value of the surrounding
property.
The Board therefore concludes that the Council’s
determination with respect to criterion. 3 is against the
manifest weight of the evidence.
Traffic Patterns (Criterion 6)
Trucks will reach the facility via Centennial Expressway,
a four-lane, divided, limited access highway. They will
exit at the Seventh Avenue exit and proceed 500 feet west on
the exit ramp to Sixth Avenue (1-10, 59, 11—17). Sixth
Avenue is a wide, concrete—paved street (11-17). A count in
August, 1983 showed 1752 vehicles in a 10-hour period, of
which 569 were commercial trucks (1—9, 37, 61, 11—18). The
facility will receive 30 to 40 trucks per day at full produc—
tion (1-10). The proposed routes have adequate capacity for
57-29
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this additional traffic (11—18). Deliveries will be
scheduled
to avoid backups (1-70).
Section 39(a)(6) requires local government to approve
the site location suitability in accordance with the following
criterion:
“the traffic patterns to or from the facility are so
designed as to minimize the impact on existing traffic
flows”.
one Councilperson’s statement recites that traffic to
and from the plant “would cross
basically the entirety of
our community” (11-535).
From the context, it appears that
his concern was the danger of spills
rather than the traffic
itself. This concern will be addressed in the next section
of this Opinion.
The evidence is uncontroverted that ample capacity, inclu.
ding the number of vehicles and their weight, exists for the
proposed traffic. The Board therefore finds that the Council’s
rejection with respect to criterion 6 is contrary to the
manifest weight of the evidence.
Fires, Spills or other Operational Accidents (Criterion 5)
Criterion 5 concerns the danger to the surrounding
area
from fire, spills or other operational accidents. Discussion
of this, and criterion 2 which follows, requires a more
detailed discussion of the design of the proposed facility
than was presented above.
Wastes will be received in drums, tank trucks, sludge
trucks and dump trucks. Wastes will be received in a caustic
dump pit, an acid dump pit, a bulk receiving terminal and
a
loading dock for drums. Bulk wastes will be pumped to
storage tanks; drums may be stored prior to mixing and
transfer to bulk storage (I—li, 20; Permit Application
p. 15). There is also provision for receipt of oil emulsions
and waste destined for direct treatment by the reverse
osmosis unit (Permit Application p. 16, 17).
Wastes to be treated by the facility include hazardous
wastes generated by metal finishers, electroplaters, heavy
manufacturing, printing and dry cleaners (1—12, 27, Burns &
McDonnell report, p. 8). The application specifically
excludes explosive, radioactive, flammable and bacterial
materials, polychlorinated biphenyls and dioxins (1—19).
Wastes which are specifically mentioned to be treated are
industrial wastes with a large amount of water present,
including: spent pickle liquor; cyanide waste, typically
57-30
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from plating operations; sulfide waste; heavy phenol waste;
aqueous wastes containing miscible or floating organic
compounds; and, wastes treatable by reverse osmosis (1—17,
28, Permit Application p. 34). The facility will also
receive bag house lime, arc dust and fly ash, typically non—
hazardous solid wastes, which will be mixed with liquid
wastes produced by the facility (Permit Application, p. 34).
Wastes are stored mainly
in a series of outdoor,, above—
ground
tanks. These are divided into acid tanks, caustic
tanks and high-organic tanks
(1-18). There are also storage
impoundments for non-hazardous oil emulsions and a storage
tank for waste to go through reverse osmosis (Permit Applica-
tion p. 75, 81). The drum storage area is in a building,
with three storage bays
with capacity of 328 drums per bay
(Permit Application p. 92,
97). One bay will be for wastes
intended for transfer without treatment. Maximum storage
time will not exceed 120 days (Permit Application p. 98),
or one month for waste stored for transshipment (11—19, 25,
58, 250, 378, 443).
Waste treatment is similar to the operation of a typical
physical-chemical wastewater treatment plant (11—36, 38,
392, 394). Heavy metals are precipitated by adjustment of
pH, which is largely accomplished by mixing acidic and
caustic wastes. Lime is used when inadequate caustic waste
is available. The precipitate is drawn off after floccula-
tion (Permit Application p. 120). After filtration and
ultrafiltration, the remaining metals and other contaminants
are removed by reverse osmosis (Permit Application p. 124,
128, 130). This will be used to remove dissolved organics
from water as well as inorganic contaminants.
The treatment process also includes a number of opera-
tions which remove contaminants which would interfere with
the basic treatment scheme. These include:
1. alkaline chlorination to destroy excessive cyanide
concentrations (Permit Application p. 115);
2. chemical reduction of hexavalent chromium utilizing
ferrous iron in spent pickle liquor (Permit Applica.
tion p. 121);
3. acid treatment of oil emulsions (Permit Applica-
tion p. 126),
The principal waste output will be water, up to 30,000
gallons per day, around 80 to 98 of the waste received (I—
30, 11-197). This will be pumped to a covered concrete
basin. It will be offered for sale as boiler feed water (I—
31). If it is not sold, it will be discharged to the City
57-31
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sewer in batches after analysis to insure the absence of
contaminants which would upset the City’s sewage treatment
plant. The batch discharge will be conducted during times
of low sewage flow to avoid
hydraulic overloading of the
City plant and sewers (1—47, 11—33, 35, 176, 188, 191).
Other outputs will include oil and solvents recovered
by skimming the aqueous wastes, or from the reverse osmosis
unit. These may be sold to recyclers (1—18).
If not, they
will be sent off—site for incineration or solidified for
land disposal off—site.
Another output will
be sludge produced by the precipita-
tion and flocculation, and other treatment. The sludge will
be dewatered
by centrifugation and sent off-site for disposal
(Permit Application, p. 124).
Section 39.2(a)(5) of the Act provides that the local
governing authority is to
approve site location suitability
in part according to the following criterion:
The plan of operations for the facility is designed to
minimize the danger to the surrounding area from fire,
spills, or other operational accidents.
There are four types
of on—site operational accidents
which could pose a danger to the surrounding area: air
emissions from a fire; air emissions from a spill; air
emissions from mixing of incompatible waste; and, organic
solvent vapor emissions (11-342).
The building and all
components will be made of
metal
and concrete, with no flammable materials to be used in
construction (1-19). The plant will have alarms, an
automatic
sprinkler
system
and two fire extinguisher stations (1—19).
No flammable reagents will be used in the treatment process
(1—19, 11—405). The facility will not accept flammable
materials for treatment, although it will accept limited
amounts for temporary storage, and may recover flammable
organic solvents through the treatment process (1-20, 11-13,
172, 379, 394). The area for storage of flammable materials
will be isolated and will have its own alarm
and fire extin-
guisher system (1—20, 11-14). Potentially flammable vapors
are vented to activated carbon adsorption units (1—19, 11-
14, 42, 172).
The nearest residence is 400 feet away from the f~ci1ity
boundary (11—15, 227). There is virtually no possibility of
fire itself spreading from the facility to the surrounding
area. There may however be a danger of smoke and fumes
reaching the surrounding area (11-171, 174). This danger
57-32
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appears to be slight considering the limited amounts of
flammable materials and the precautions which have been
taken.
Criterion 5 requires that the facility be designed to
“minimize” the danger to the surrounding area. The cri-
terion specifies that the danger be minimized, but does not
allow rejection simply because there is some danger. There
is no showing in this record as to what greater precautions
the applicant could take.
The immediate danger from on-site spills is the possi-
bility of fumes escaping the site (11-342). The facility
will only take non-fuming wastes, but there are also pre-
cautions against spills
(I—li,
11-158). Spills could result
from truck unloading, tank overfilling or tank rupture. The
tanks and treatment units will be equipped with overflow
alarms, and surrounded by secondary containment capable in
emergencies of holding the volume of liquid stored in the
tank (1—21, 11—12; Permit Application, p. 84, 92). The
tanks will be vented to the scrubber system to prevent any
pressure buildup (1-18, 11-41, 59). The truck unloading
area will be on a concrete floor several feet below grade.
Any spills will be directed toward a sump from which the
material can be pumped into the treatment process
(I-li,
21,
11-12). Considering the limitation to non-fuming wastes and
the precautions taken, it appears that there is virtually no
danger to the surrounding area from on-site spills.
Although the wastes taken into the plant are “non—
fuming”, they will include caustic waste containing cyanide
or sulfide (1—12, 11—39; Burns
& McDonnell Report,
p. 9). If
these were accidently mixed with acid waste in a tank,
toxic
hydrogen cyanide or hydrogen sulfide gas would be generated
(1—17, 11—il, 39, 59, 60). The site will have elaborate,
color
coded controls to prevent mixing (1-17, 11-11). The
tanks are vented to caustic scrubbers capable of removing
hydrogen cyanide or sulfide should an accident happen (1-18,
82, Il—il, 22, 157, 172, 175, 353, 434). There are monitors
to alert the operation if toxic fumes are generated (11-60).
It is apparent that there is some risk of generation of
toxic fumes; however, this is slight considering the pre-
cautions taken (11-59). The record is devoid of any sugges-
tions of measures which could be taken to reduce this risk.
Criterion 5 does not allow rejection of site location suita-
bility based only
on the existence of a danger; rather, it
requires approval if the facility is designed to minimize
the danger. All the evidence indicates that the danger has
been minimized.
57-33
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It is conceivable that an accident could result in
emission of organic solvent vapors, although the facility’s
handling of
these
materials is minimal. Some of these
solvents may be harmful if inhaled in large quantities (II—
353, 409). Organic solvents are often emitted into the
atmosphere by industrial operations, as for example, Servus
Rubber Co. (R. 500, 502). Emission of organic solvents
which are photochemically active is limited pursuant to 35
Ill. Adm. Code 215. As noted, the facility has taken pre-
cautions against spills. Tanks and sensitive areas of the
plant are vented through activated carbon to adsorb organic
vapors. The dangers to the surrounding area from organic
material
emission have been minimized.
The problem of off-site spills centers on the possibility
of a traffic accident involving a truck delivering waste to
the facility for treatment (1—82, 11—13, 27). The possibility
of air emissions or fire from an off-site spill is reduced
by the limitations discussed above to non-fuming, non-
flammable wastes (11-56). The main problem would be containing
a spill before liquid could reach surface waters or enter
the storm sewer system (11-28, 485). This might cause water
pollution and damage the sewer system (11-56, 199, 437).
The problems of such a spill would be identical to the
problems created by an accident involving a truck carrying
gasoline or bulk organic chemicals, acids or caustics (11-
13, 32, 202, 512), As noted above, the traffic will be on
streets already carrying these materials, and there will
not be a significant increase. Coordination with local
units will be required under the RCRA permit (11—31,
439).
The City Engineer indicated that local units would have
ample time
to
develop contingency plans (Letter of August 31,
1983).
Council members cited
the financial burden of off—site
spills as a reason for denial (11—531, 532). Transportation
of hazardous waste is governed by the permit requirement of
Section 21(g) of the Act and 35 Ill. Adm. Code 809, and by
the RCRA
transporter regulations of 35 Ill. Adm.
Code
723.
Section 723.131 requires the transporter to clean up any
hazardous waste discharge which occurs
during transportation.
The frequency of spills is related to the number of
miles driven. The creation of a new treatment facility will
have
the primary effect of reducing the number of miles
driven, especially for generators in the same city (11—419),
Therefore, creation of a new facility may result in an
overall decrease in the number of off—site spills, although
there may be a local increase near the facility. Such a
local increase could be a legitimate concern of the local
governing body. However, in this case, the record indicates
57-34
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that the roads have ample capacity for the traffic and that
the waste is no different than the materials presently
moving. The additional danger is not significant.
Criterion 5 requires approval if the danger from
spills has been minimized. The record contains no suggestion
of additional precautions which could be taken to further
reduce the danger. It has therefore been minimized. The
Board therefore concludes that the Council’s finding that
the proposed facility did not meet criterion 5 is against
the manifest weight of the evidence.
Public Health, Safety and Welfare (Criterion 2)
Criterion 2 is the broadest and most troubling of the
criteria. Section 39(a)(2) of the Act requires site location
suitability approval in part if the local governing body
finds that:
The facility is so designed, located and proposed to be
operated that the public health, safety and welfare
will be protected.
In an early case the Board reversed a County Board
denial finding on criterion 2 which was based on the design
and construction of a landfill and the underlying geology
and hydrology, rather than the site location itself. The
Board held that criterion 2 was not intended to give local
authorities concurrent jurisdiction with the Environmental
Protection Agency to review highly technical details of the
landfill design and construction (Waste Management v. Tazewell
County, PCB 82—55, 47 PCB 485 August 5, 1982). The Third
District Appellate Court reversed the Board, holding that
the Board erred in relying on legislative intent when the
words of the statute unambiguously required the County Board
to consider the public health ramifications of the landfill’s
design (East Peoria et al. v. Waste Management et al., Supra.
The Supreme Court granted leave to appeal, but dismissed the
appeal without prejudice pending Board consideration of a
settlement agreement (East Peoria etal. v. IPCB e.taL., tJo.
59110, January 10, 1984). On February 22,
1984 the Board
rejected the settlement, and asked the Supreme Court to
decide this issue, Pending final resolution the Board will
follow the Third District decision.
In this case the Council employed the consulting engin-
eering firm of Burns and McDonnell to make an independent
evaluation of the application. Burns and McDonnell’s conclu-
sion was that the site location met all of the criteria,
including criterion 2. The Council nevertheless rejected
the site, based in part on the failure to meet criterion 2.
57-35
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The basic design of the facility has been discussed
above. Among the features already discussed are the following
which are closely related to the protection of public health,
welfare and safety:
1. Protection against spills and tank overflows;
2.
Protection against pressure build—up in tanks;
3. Caustic and acidic scrubbers;
4. Carbon adsorption of organic vapors;
5. Fire protection equipment;
6.
Limitation of waste types to be received;
7. Batch discharge after analysis.
Other design features closely related to protection of
public health, welfare and safety include the following:
1. Analysis of incoming waste to assure that it is
placed in the correct storage area and is amenable
to treatment (1—26, 45, 69, 81, 11—401).
2. Training programs for employees to assure that
they are able to operate the facility correctly
(1—79, 11—14, 49, 149, 263, 401, 408, 411, 414,
431).
3. Liability insurance and closure assurance (11—221,
263, 369, 512, 514).
4. Coordination with local emergency units (11-31,
201, 367).
5. Communications equipment to assure contact between
parts of the facility and with outside emergency
units (1—24).
6. Contingency plans and emergency equipment to
contain and clean up any spills (1-25, 11—263).
7. Inspection plan and logs to assure that equipment
is inspected according to a routine to avoid
malfunctions and deterioration (1-28, 41, 46, 77,
79, 11—46, 444).
8. Security equipment to prevent accidental or inten-
tional intrusion by unauthorized persons (1-23).
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9. Run-on, run-off controls and provision for retention
in lined basins and treatment of stormwater (1—22,
57, 11—12, 44, 178, 184).
Part of the East Peoria decision concerned the level of
detail to he reviewed by the local governing body. Burns
and McDonnell were quite clear as to their function: they
were reviewin~a “conceptual” or schematic design to deter-
mine if the right type of systems and necessary safeguards
were present, and whether equipment was available to do the
3oh. They were not reviewing the design for construction
purposes to determine, for example, whether the right brand
of pump had been chosen (11—126, 136, 139, 142, 145, 158).
Considering that the local government approval is an approval,
which will often occur preliminary to the Illinois Environ-
mental Protection Agency’s review of construction details
through the permitting process, this appears to be a workable
interpretation.
Several design elements to be incorporated into this
facility are required by 40 CFR 264 for this type of hazardous
waste treatment facility, especially 40 CFR 264.13, 264.14,
264.15, 264.16, 264.32, 264.34, 264.37, 264.143, 264.147,
264.170, 264.190 and 264.220. These regulations have been
adopted by the Board to allow the Illinois Environmental
Protection Agency to apply for authority to issue RCRA
permits rather than the United States Environmental Protection
Agency (35 Ill. Adm. Code 724, 7 Ill. Reg. 14059, October
28, 1983). Although neither the City Council nor the Illinoia
Environmental Protection Agency have authority to issue RCRA
permits, these regulations constitute a standard of care
adopted by the Board and the United States Environmental
Protection Agency for protection of the public health,
safety and welfare with respect to hazardous waste facilities.
There is no indication that any of the Part 264 standards
would be violated by the “conceptual” or schematic design as
proposed.
One of the denial reasons given by a Council member was
the financial burden of cleanup, monitoring and spills (II-
530, 536). As noted, the regulations require liability
insurance and financial assurance of closure costs. The
applicant has proposed to obtain these, and no RCRA permit
can be issued until it does so. Furthermore, the Second
District Appellate Court has held that proof of the applicant’s
financial responsibility may not be considered in granting
approval pursuant to Section 39.2 (County of Lake v. XPCB
et al., 1~0Ill. App. 3rd 89; 457 ~
Another reason cited is the failure to provide test
results of effluent and air emissions (11—564). Such test
results could not be obtained until the facility is actually
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built, which cannot happen until local site approval has
been given. Experts have given their opinions as to the
quality of the effluent and emissions to be produced (I—li,
31, lI—li, 22, 33). This is all the evidence which can be
given before a facility is built. Another reason given is
the failure to present safety records of other similar facili-
ties (11-542), This is not required by the criteria.
Other reasons cited by members of the Council include:
the failure of the Illinois Environmental Protection Agency
to appear at the later hearings; inadequacy of Agency inspec-
tions; and, the failure of the Illinois Department of Public
Health to answer a Councilperson’s questions concerning the
wastes (11-533, 539). Nothing in the Act requires the
Agency to appear at hearings held before the local governing
body. The frequency of Agency inspections and the failure
of the Department of Public Health to answer are beyond the
control of the applicant, and irrelevant to the criteria.
Furthermore, the Councilperson’s contacts with the Depart-
ment were outside the record and could not be used as a
basis for denial.
Another reason cited by a Council member is inadequate
information concerning liners (11-532). As has been noted,
the review conducted by the Council’s consultant was of a
conceptual design, rather than a detailed review. Synthetic
liners are to be placed in the locations required by 40 CFR
264, and liners are available which would be appropriate for
the wastes to be stored (11-44). Although Appellate Court
decisions arguably give the Council authority to consider
such construction details, there is no evidence in this
record other than that appropriate liners are available.
There is no evidence on which the Council could have based
its denial.
Other areas not specifically mentioned by the Council
members, but addressed by citizens, concern: the necessity
for a liner for the basin for storage of treated water; the
necessity for groundwater monitoring; and, the advisability
of discharging unsold water to the wastewater treatment
plant as opposed to direct discharge to the River. The
concrete storage basin is not intended to hold hazardous
waste, but highly purified water (1-32, Burns & McDonnell
report, p. 14). Process water is analyzed prior to discharge
with the possibility of return to the treatment process if
it is unacceptable (11-35). It appears that it will not be
a hazardous waste storage lagoon which would require a
liner.
A possible basis for denial which was not cited by any
Council member was the lack of groundwater monitoring in the
57-38
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proposal. Groundwater monitoring at hazardous waste treat-
ment facilities is required by 40 CFR 264~90, which has been
adopted as 35 Ill.
Adm. Code 724.190. The groundwater
protection provisions apply only to facilities which treat,
store or dispose of hazardous waste in surface impoundments,
waste piles, land treatment units or landfills. The latter
three are not involved in this application. The treatment
and storage operations for this facility appear to be in
tanks and containers which do not trigger groundwater monitoring,
Assuming they were impoundments, they could be designed so
as to avoid groundwater monitoring under Section 724.322
(11—179). Dr. Robert Ginsburg, testifying for opponents of
the siting, was uncertain as to whether groundwater monitoring
would be required for this facility (11—413).
The applicant has proposed to discharge any unsold
water in batches to the City sewer system which is on critical
review because it is hydraulically overloaded (1—57, 11—33).
An alternative scheme which may be requested by the City,
but was not proposed by the applicant, would be direct
discharge to the Mississippi River pursuant to NPDES permit
(11—34, 144, 360). Discharge to the treatment plant would
provide an extra margin of safety in the event of accidental
discharge of hazardous constituents, although this could
upset the treatment plant. Such accidental discharge is
very unlikely because of the batch discharge after analysis
(11—33, 191, 358). Discharge of such a volume of clean
water to a hydraulically overloaded plant may be inadvisable,
even in batches at times of low flow as proposed (11-49,
176, 191, 358). Choice of direct or indirect discharge may
depend on how much of the water can be sold. The City in
any event retains complete control over whether to accept
and how much to charge for such an industrial discharge to
its sewer system (11-35, 406).
Another reason cited by a Council member was the lack
of information on the untreated wastes to be accepted for
storage at the site (11—532). The categories of waste to be
accepted for storage and transshipment are limited, and
the storage area is limited to 328 drums, with no drum to be
stored for more than one month (11—19, 25, 58, 250, 378,
443). There is no indication other than that the drum
storage area would meet the standards of 40 CFR 264.170 et
seq. (35 Ill. Mm. Code 724.270 et seq.).
Among the reasons cited by citizens, but no Council
members, for opposition to the siting is that the applicant
lacks the skills needed to operate the treatment units, and
that it has a poor record of compliance with environmental
regulations at the Andalusia landfill (1—91, 11—19, 36, 148,
153, 306, 309, 324, 335, 339, 346, 353, 408, 425, 431, 509).
57-39
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The site location suitability criteria of Section 39.2(a) of
the Act do not mention either the skill of the operator or
the history of violations; indeed, the criteria focus on the
facility itself, without regard to the operator. The defini-
tion of “new regional pollution control facility”, contained
in Section 3 of the Act, specifies modifications to the
facility or wastes which would require reapproval by local
government. Sale of the facility to a new operator is not
included.
On the other hand, Section 22(b) of the Act allows the
Board to adopt standards for certification of operators
based on skill and a history of violations; Section 39(i)
allows the Agency to deny a RCRA permit based on such history.
In the face of these specific provisions dealing with operator
skill and past violations, the Board will not read similar
requirements into the criteria of Section 39.2(a). The
Board therefore holds that evidence of operator skill or
past violations is irrelevant to the site location suitability
approval (Frinks v. City of Rockford, PCB 83—41, June 30, 1983,
p.8).
It should be noted that Dr. Ginsburg’s testimony in
opposition to the siting centered on the issue of past
violations and the operator’s skill (11—306, 309, 335, 339).
The remainder of Dr. Ginsburg’s testimony can be construed
as favorable to the design and location of the facility
(11—399, 404).
In summary, in reviewing this record, the Board is
unable to find any evidence other than that the facility
will be designed, located and proposed to be operated so
that the ~uh1ic health, safety and welfare will be protected.
The Council’s finding on criterion 2 is therefore contrary
to the manifest weight of the evidence.
In reviewing the design of the facility under the East
Peoria and Lake Cou~ decisions, the Board has been forced
to dwell on details of the design which will also be the
subject of review with the Part B RCRA permit application
to the United States Environmental Protection Agency and the
Illinois Environmental Protection Agency. In the event that
authority to issue RCRA permits is delegated to Illinois
before the Part B application is acted on, the Board could
be in a position of again reviewing this facility pursuant
to appeal of a permit denial or issuance with conditions.
The Illinois Environmental Protection Agency is not a party
to this appeal. The Board’s discussion of the facility
design in the course of this site location suitability
approval decision is not intended in any way to limit the
Illinois Environmental Protection Agency’s detailed review
57-40
—19—
of the permit application, and will not limit any future
permit review by the Board.
Conclusion
The Council’s finding that the proposed facility
failed
to meet the criteria of Section 39.2(a)(2), (3), (5) and (6)
is contrary to the manifest weight of the evidence. The
Council’s denial of approval of site location suitability
is
theref ore reversed.
This Opinion constitutes the Board’s findings of fact
and conclusions of law in this matter.
ORDER
The October 12 and 13, 1983 decision of the Rock Island
City Council
denying approval of site location suitability
pursuant to Section 39.2(a) of the Environmental Protection
Act to Watts Trucking Service, Inc. is reversed. Site
location suitability for the facility is approved.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify,that the above Opi ion and
Order were adopted on the J’
day of
rr~
,
1984 by a vote of
C~O —.
Christan L. Moff
jerk
Illinois Pollution ntrol
Board
57-41
