ILLINOIS POLLUTION
CONTROL
BOARD
June
30,
1983
FRINK’S INDUSTRIAL WASTE, INC.,
)
Petitioner~
V.
)
PCB 83—10
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
THOMAS
J.
IMMEL
(BtJRDITT
& IMMEL) AND
DONALD
L.
SHRIVER
(D~NEY,
YALDEN,
SHRIVER
&
YALDEN)
APPEARED ON BEHALF
OF
PETITIONER,
AND
E.
WILLIAM
HUTTON
&
JOSEPH
R.
PODLEWSKI APPEARED ON
BEHALF
OF
RESPONDENT.
OPINION
AND
ORDER
OF THE BOARD
(by J. Anderson):
This matter comes before
the Board on the
January
26,
1983 appeal by Frinkvs Industrial Waste,
Inc.
(Frink~s)of the
January 19, 1983 denial by the
Illinois
Environmental Protection
Agency (Agency)
of permits to operate four waste storage tanks.
The tanks are located on a
4.8 acre site approximately two miles
north of the Village of Pecatonica
i.n Winnebago
County.
The concrete tanks at issue
(known
as Tanks
1—4,
and located
in a building) have an aggregate
capacity
of
about 80,000 gallons.
Tanks
1 and 4
receive oi1y wastes,
Tank
3 receives
waste solvents,
and Tank
2 receives high pH alkaline
materials,
These
wastes are
“treated” insofar as the liquids
separate by gravity
as they are
retained in the tanks.
Some
liquids are reclaimed,
while waste—
waters and sludges are transported off~-site
for
treatment and/or
disposal.
The Agency~sstated reasons
for permit denial
were that:
1.
“Recent samples collected
by the applicant
and by
the Agency from downgradient
monitor wells
indicate
that synthetic organic
chemicals continue
to
contaminate groundwater
(Section
12
(a,
d, and
f)
of the Act; 35 Illinois Admin.
Code,
309,241,
725,190),
The source of
groundwater contamination
must be found and eliminated.
Action must
be taken
to assure that no
future groundwater contamination
will occur.
Because the source of the groundwater
contamination is not known at this
time,
no single
tank or portion of the facility may
be
eliminated
as a contributing source of the contamination.
52-447
2
2.
The
applicant failed to implement or provide a
groundwater monitoring program capable of precisely
determining
the facility’s
impact on the
quality of
the uppermost aquifer underlying the facility
(35
Admin Code,
725,190),
The reapplication
proposed
additional downgradient wells that would monitor
the water table;
however, they were not installed.
Installation of the proposed wells would
have
allowed determination of the direction of
shallow
groundwater movement and would have
allowed sam-
pling at the groundwater table where materials
with
a specific gravity of less than 1.0 would occur.”
By its Orders of
January
27 and February
10,
1983 the Board
granted Frink’s
January
26,
1983 motion for stay
of the effect of
denial
of these
operating permits, with the result
that Frink’s
has been able
to continue to accept wastes during the
pendency of
this appeal.
On February 16,
1983
the Agency filed
a Record
consisting of 152 exhibits,
and on
May 27,
1983 filed additional
exhibits 153—163,
Each
filing was the subject
of
a motion to
file instanter,
which
motions are hereby granted.
On June
28,
1983,
the Board received a
letter from the
Agency dated June
23
containing the results of
an Agency January 13,
1983 lab water
analysis which the Board incoporated into the Agency Record as
Exhibit 164.
Hearing in this matter was held
in
Rockford on March
31,
1983.
Testimony was given in
support of
the permit issuance by
Randall Olson, Frink’s
president,
and
in opposition
by Eugene
Theios, Manager of
the Disposal Alternatives
Unit of the Permit
Section of the Agency~s
Division of Land Pollution
Control, by
Maichle Bacon,
Director of
Environmental Health
Winnebago County
Uealth Department,
and by Cindy Hunter
and
Adrianne Ahistrom,
residents of property neighboring
the Frink’s facility.*
Each
party submitted closing
arguments.**
*
At hearing, the hearing officer
admitted
6 exhibits by
stipulation of the parties
(H.O.
Ex,
1-6),
and
a written statement
by another Frinkts neighbor,
Debbie Flynn as H.O.
Ex.
7.
Frink’s
also presented one exhibit
(Pet, Ex~ 1).
As the
Agency presented
no exhibits at hearing,
and as
its Record
is not
page—numbered,
references to it will appear
as ~‘IEPA Ex.
____
**The Board notes that
in
its brief, Frink~s
refers by
number to various “Exhibits in Support
of Permit
Appeal” filed by
it January 26 and February
8,
1983 (Frink’s
Ex,
1-30).
Most of
these exhibits are contained
in the Agency Record.
Those
which
are not ~areFrink’s
Ex.
1,
a memorandum
dated July
13,
1981 con-
cerning a phone call between Frinkvs and Agency personnel,
Frink’s
Ex.
8,
a July 29,
1982 letter from T.
Immel to
J.
Podlewski
concerning the lagoon excavation, Frink~sEx.
11 and 13 being
laboratory reports by Aquasearch, and Frink~sGroup Ex.
30,
several January 26—27
letters from the Agency to Frink’s denying
(footnote continued on
p.
3)
52-448
3
As will be discussed later, the issues before the Board
reduce themselves to the questions of whether Tanks 1—4 can be
eliminated as the source of the undisputed groundwater contami-
nation at the Frink’s site,
and whether
its submitted groundwater
monitoring program is
adequate.
Additional issues
have crept or
been interjected
into this action however, as a result
of
confusion concerning
the nature of the
Board~schapter 7:
Solid
Waste
regulations, the
occurrance
and peculiar
circumstances
surrounding
groundwater
contamination
at
the
Frink’s
site, and
start-up
difficulties
involving
the
Agency’s
consolidated
permit
review
program
(in
~thich
the
Agency’s
air,
land,
and
water
divisions
are
to
give
coordinated review to
the
various
permit
applications
which
may
be required
for
the
operation
of
any
sin9le
facility).
The
latter
has
made
this
record
difficult
to
deal
with,
in that supplements
to
the
record
have
been
necessary
when the
Agency
has
located
additional
relevant
documents,
and
documents
which
the Board
would
have
assumed
would
be
included
in
the
Agency
record
are
not.
Given
these
circumstances,
a
more
detailed
than
usual
recitation
of
the
facts
of
this
case
is
a
necessary
prelude
to
a
discussion
of
the issues
argued
by
the
parties,
SITE
HISTORY*
AND PERMIT
DENIAL
Randall Olson, then doing business as Frink’s Sewer Service,
was issued a permit to develop
the
.4,8
acre
site to “store,
transfer, and process special
and
hazardous
wastes
in August,
1979
(IEPA Ex.
9);
as the Agency
Record
does
not
contain
all of the
engineering reports and site
plans
incorporated into the develop-
ment permit by reference,
it
is
not
possible
to
accurately
speak
of
the
required development.
However,
as
of
February,
1980,
the
storage and processing facilities consisted of a four—compartment
tank building
(currently
numbered
Tanks
1—4),
to
the
south
of
which was a
pump
building,
and 13
underground
oil
storage
tanks.
(continuation
of
footnote
from
p.
2)
several
supplemental
waste
stream
permits,
Group
Ex.
30
is
stricken
from
the
record
as
the
events
occurred
after the closing
of the
Agency’s
permit
record.
The
rest
are
stricken
because
there is no
evidence that these
materials
were
ever
received
by
the Agency,
and no argument
or
stipulation
was made at hearing or
any other time
that these documents should have
been part of the
Agency record.
*For
demonstrative purposes,
attached
to
this Opinion as
Appendix A is a reduction
of the Frink’s
oversize
site plan sheet
submitted as Pet.
Ex.
1, depicting the site
‘‘as built” June
25,
1982, and containing
handwritten
notations,
The
original scale
was 1”
=
50’;
the Board has added an adjusted scale to reflect the
reduction.
Attached
as
Appendix
13
is
a
reduction of the
11”
X
14”
p.
1 of H,O. Group
Ex.
3 which,
while
less
clear,
shows the
location of abandoned storage
lagoons.
The
Board has not adjusted
the scale
reflected on
the
exhibit to account for
the reduction.
52-449
4
Two
of
the
tanks
were
located
to
the
east
of
the
pump
building
(currently numbered Tanks
16-17), and the
rest
to the south of
it.
Two liquid storage lagoons existed to
the east of the
structures.
One monitoring well
(W—1)
had been installed to
the south of the
structures and lagoons (IEPA
Ex.
160,
Ex,
11, last
unnumbered page).
The proposed processing of waste materials seems
to have
involved settling of wastes
in Tanks
1—4 and subsequent
purnpage
of liquids to the underground tanks or lagoons
(IEPA Ex.
4).
On April
2,
1980 the Agency issued an experimental permit ~
operate portions of this facility, expiring March 31, 1981.
Among
other special
conditions, the Agency
prohibitted “use of any...
lagoons...to
handle
any
liquid
waste
(IEPA
Ex.
16),
April,
1980
inspections
of
the site following permit
issuance
revealed that
the two
200,000 gallon capacity lagoons were still
in use.
The
north lagoon
was reported as being
‘‘full of oily
industrial waste,
while
the south had a small amount of,. .sewage wastes”
(Ex,
21),
Drainage of these
lagoons appears to have begun in
June,
1980;
the oil waste lagoon was
drained and fil:Lea
in
as of August 14,
1980, and the sewage
lagoons
as of November 12,
1980
(Ex.
27—41).
In December,
1980
representatives
of
the
Agency
divisions
of
land,
air,
and water pollution
met
to
coordinate their activities
in regards to
the Frink’s facilities, and produced a
list of site
improvements needed.
It had been noted that no water monitoring
had previously been required by permit
(IEPA Ex,
40); among the
“priority #1” items noted
was to have Frink~s
“complete a
groundwater
monitoring
program based
on
RCRA Federal
Regulations
published May 19,
1980”.
Another priority item
involved exca-
vation of the
abandoned
oil
lagoon,
removal and
disposal “under
Agency supervision’’,
and analysis of soil samples
for seepage of
contaminants
(IEPA
Ex,
42, p.
2—3),
On June 26,
1981 the
Agency denied a request,
among others,
for a land division
permit to operate treatment
facilities
at the
site.*
Among reasons for denial were the
above
described concerns
regarding the
abandoned oil
lagoon and groundwater
monitoring
(IEPA
Ex,
51,
p.
2),
Since that time, various activities have
taken place
in regard to
each
of
these
problem
areas.
In the
interest of
clarity,
the
Board will separately outline
the
developments
in each area,
The Lagoon
On August 20,
1981,
Frink’s advised the Agency of its
opposition to the taking of any
soil borings which would pierce
the liner of either the closed
oil or sewage
lagoons.
Frink’s
*On February
5,
1982,
the
Air
Division issued a permit to
allow operation of Tanks
1—4
and 16—17 through February
5,
1983
(IEPA Ex.
68),
It
is unclear how issuance of this permit relates
to permit denials by the land division,
52-450
5
argued that no leaching had been
discovered in any monitoring
wells,* that
the lagoon closing had been subject
to Agency
inspection, that penetration of the lagoon sides or bottoms could
cause
leaching,
and
that
a
more
appropriate
test
would
be
to
bore
around the lagoons to elevations below them,
Frink’s stated that
if borings were to be taken through
lagoon liners that
it
‘‘disclaims any and all
liability for any future
complications or leaching
from either lagoon and will
expect
the
IEPA to assume
all
liability
therefor and
hold
EFrink’s
harmless thereon”
(IEPA
Ex.
54).
In response,
the
Agency
rejected
Frink’s
attempt to disclaim
liability,
on the grounds that
it was Frink’s
burden to prove
that its operation and
closure of these lagoons had not created a
groundwater contamination potential.
Lack of
evidence concerning
leaching was considered
non—determinative,
based on the location
of the existing well and “lack
of knowledge regarding the
direction and depth of groundwater
flow”.
The Agency stated that
the only way to prove that the soil
beneath
the
lagoon’s liner had
not been contaminated would be to first penetrate and test the
soil just outside the lagoons, and
then if
necessary to penetrate
the liner and test the subgrade.
It
was
asserted that future
leaching could be prevented “by casing
and
sealing the boring
holes immediately after completion of the boring with an approvable
sealing compound”.
The only alternative to soil boring was said
to be removal of all contaminated
materials
in and under the
lagoons
(IEPA Ex,
56),
Frink’s chose the alternative
removal option.
Based on the
procedure suggested by the Agency,
Frink’s
applied for and
received on November 13,
1981 a
permit to
excavate and remove the
contaminated soil
(IEPA Ex,
58,
61,
63),
The permit specified
that “the waste and contaminated cover
soil and subsoil will be
excavated and hauled immediately
by
truck
to
a secure landfill for
disposal,”
and that the excavation would
remain
open
until1 such
time as analysis of split samples
taken by Frink’s and th~Agency
showed no contamination of the remaining
soil
(IEPA Ex.
61).
Some not entirely documented
deviation from
this procedure
was agreed to by the Agency and
Frinks,
apparently providing that
no soil should be removed unless contamination was found
(IEPA
Ex.
79—80).
Excavation of the lagoon commenced
June
24,
1982.
A
reference sample was taken from a
location 50—60’
from the
northeast corner of the property.
Four feet
of
cover was removed,
whereupon a “dark,
charcoal—gray oily sludge” appeared;
a sample
of this was taken at the 4’8”
level.
Some 32” of sludge was
removed.
A subsoil sample was removed from within
1’ below the
sludge
(7’ below the surface), and another
1’ below the previous
one
(8’3” below the surface).
The latter two samples consisted
*By this point,
2 monitoring wells existed.
52-451
6
of
a
“gravelly,
clay—orange
soil
with
sand
and
many stones”, and
were
taken
used
the
blade
of
a
spade
(presumably
after
excavation
by the backhoe).
The
site
was than covered with
a
plastic
cover
(sic)
(IEPA Ex. 81).
The analysis of these samples
(attached to the memo dated
June
24)
were
apparently
completed
July
16,
The
only
sample
showing
signs of any
contamination
was
the
sludge
itself,
showing
the presence of
a
number of the following synthetic organic
chemicals
in
the
noted
concentrations:
including
trichloroethylene
(1700
ppm) tetrachloroethylene (1900 ppm), toluene
(1100
ppm),
xylenes
(1400 ppm),
C
substituted henzenes
(800.ppm),
C4
substituted benzenes ~300 ppm), naphthalene
(80 ppm) and aliphatic
hydrocarbons
(4800 ppm)
(IEPA
Ex.
81).
Agency
memos
do
not
recite
weather
events
occurring between
the June
24
excavation
and
the
August
3 removal
of soils and
sludges
from the area.
Correspondence between
Frink’s and the
Agency
indicates
that.:
‘‘During the period the excavation remained open,
,approximate:1.y
11
inches
of
rain fell and went
diredtly through the liner after becoming
commingled
with the material above the liner.
None of the
water
was
contained
in
the
excavation.
Every bit of
it
went
through
the
hole
as
if
someone
had
pulled
a
plug out of a bathtub.”
(IEPA Ex,
148,)
It
-is
to
be
noted.
that
the
parties
strenuously
disagree
concerning who
bore responsibility for
the
piercing
of
the
lagoon
bottom
and leaving the excavation
open.
Frink’s
asserts that it
was over
its objection and the Agency’s insistence
(IEPA
Ex.
145),
while the Agency asserts that it was by agreement
(IEPA Ex.
81).
Compare Frink’s
Brief,
p.
25—28, with Agency Brief,
p.
15.
The last sample
of
groundwater taken from Frink’s
monitoring
wells*
prior to the excavation had been on May 5,
1982,
a~d showed
no
synthetic organic chemicals present in
the
groundwater
(IEPA
Ex.
74).
Samples
were
taken
on
June
28,
four
days
after
the
initial
excavation.
These samples revealed first—time presence of
synthetic
organic
chemicals in
Frink’s
groundwater.
This
is par-
ticularly
the
case
as
to
Well
No.
4
(also
known
as
G104,
closest,
and
located
to
the
southwest
of
the
old
lagoons)
which
showed
among other chemicals 1000 ppb of trichloroethylene
(TCE)**
(IEPA
Ex.
85),
Samples
taken
July
27
indicated
increasing
contamination,
TCE
readings
having
rIsen
to
2600
ppb
in
Well
No.
4
(Ex.
92).
*At
this
point
6
monitoring
wells
had
been
installed.
See
Pet.
Ex.
1,
**Ingestion
of
two
liters
per
day
of
water
over
a
lifetime
containin~71
ppb
TCE
results
in
an increased cancer risk of
3.6 X
10
;
the
same
consumpti~n
of
water
containing
1000
ppb
increases the
risk
to
3.6 X 10
The
“acceptable”
level of
cancer risk is the range between 10~ to lO~
(IEPA
Ex.
99).
52-452
1
On August 3,
Agency
inspectors
noted
that
Frink’ s
had
disposed
of
materials
excavated
June
24
the
previous
week.
Excavation
of
the
balance
of
the
lagoon
proceeded.
Soil
samples
were taken of surface material, subsoil 2” beneath the sludge,
and subsoil 150
below
the sludge.
Approximately 120 cubic yards
of material were removed
from
the lagoon for disposal.
The hole
had
been
refilled in the evening of August
3
and site grading
completed
by
August 18.
Analysis of the soii samples, completed
in
October,
showed
the
presence
of
synthetic
organic
chemicals
in all soil
samples, even
the undisturbed cover.
The subsoil 15”
below the sludge
showed TCE
present at 2400 ppb.
Groundwater
Monitoring
Following the June 26, 1981 operating
permit
denial, on
August 20,
1.981
Frink’s submitted
an engineering report proposing
to construct four new monitoring wells to supplement the existing
shallow well
and
the deep drinking water well
which
had supplied
all previous
data.
Location of the wells was premised on the
belief that the groundwater would follow surface topography, so
that shallow groundwater would most likely flow toward the south
and
discharge
into
surface water in the Pecatonica Valley (IEfl
Ex. 55).
A supplemental
permit
to install these wells
was
issued
November 30, 1981
(XEPA Ex. 65).
Various permits were again denied
November
30, 1981
(IEPA
Ex. 66).
Another supplemental report dated January 20, 1982
indicated that monitoring well W-3 on the southwest cornec of
the site
had
been completed, and that three others, W—4,
55, 6
could be completed by April,
1982 (IEPA Ex.
67).
A
May
14, 1982
Agency inspection report indicates that all
4 wells
had
been
installed
(Ex.
76).
Drillers well
logs were submitted in another
supplemental engineering report dated June
25,
1982
(Ex.
113).
Frink’s monitoring
wells
and plan were reviewed by the
Agency, the Illinois State Water Survey
(ISWS)
•
and the Winnebago
County
Department
of Public Health, with particular care after
the June—July,
1982 samplings showed groundwater contamination
on the Frink’s site, raising fears of contamination of private
wells located south of Frink’s (ZEPA Ex.
87,
88,
90,
95).
Various permits were again denied August 5, 1982.
Groundwater
contamination was specifically cited.
The denial letter
stated
that the source of contamination needed to be determined
and
additional monitoring needed to be done (IEPA Ex
•
100).
On August 23, 1982 Frink’s
submitted
a certified engineer’s
report
of tests of Tanks 1-4
(concrete tanks housed in the tank
building) and Tanks 16-17, the
two
underground steel tanks adjacent
to the
pump
house, finding them to be “structurally
sound”
and
exhibitting no signs of leakage (ZEPA Ex. 108).
On September 15,
1982 the Agency agreed to issue short—term supplemental permits
only for Tanks 1—4 on the basis of the August tank test, with Tank
1 storage contingent upon a re-test of the sludge line to Tank 1.
52-453
8
Tanks 16—17
were
required
to
he
leak
tested,
At
the
same
time,
the Agency
suggested
locations
for
2
additional
monitoring
wells
based
on
its
own
and
ISWS
analysis,
although
noting
that
~ p
lacement
of
wells
pursuant
to
these
suggestions
does
not
guarantee
automatic acceptance
of
a groundwater monitoring
program”
(IEPA Ex, 113)~
The
required
re—test
of
Tank
1
was
made
October
7
(IEPA Ex.
115).
On October
26,
Frink1s
submitted
a
supp:E.ement
to
engineering
report
addressing
location of additional
mon:Ltoring wells.
Three
additional wells were proposed.
The report rioted that the “lack
of available data
to
accurately determine the direction of
shallow
groundwater
movement” could
be
remedied
only
by
placement
of
additional
wells
and
collection
of
monitoring
data
(IEPA
Ex.
119)
On December
3
another
supplemental
report
was
prepared
concerning
Frink’s
May—October
monitoring
results.
Frink~s
engineer
opined
that
the
jump
in
organic
solvent
levels
in
Well
No.
4
between a
no
detectable
ieve:L
on
May
5
and
1000
mg/i
TCE
on
June
28
indicated
a
quick
injection
of
material
from
some
source:
a)
the
breached
lagoon,
h)
a
surface
spill,
or
c)
direct
dumping
of
a
contaminant
into
a well
(sabotage).
Facility
records
indicated
spillage
of
an
alkal:Lne
rinse
only~
so
b)
was
eliminated.
Sabotage
was not eliminated
as
a
source.
However,
analysis
of
the
lagoon
sludge contained
TCE
(1800
mg/I.),
trichioroethane
(320 mg/l) and
pentane
(250 mg/l), all of which showed up in Well
4 on
7 sample
dates
between
June
28 and October
25.
Based on the downward trend
in TCE concentration,
it
was surmised
that
the source was not a
continuing one.
It
was
noted
however
that
even
if such were the
case,
some residual
adhering
to
the
surface
of the
particles
in
the subsurface
strata
and
to
the
subsurface
of
the
monitoring well
casing
could
result
in continuing detection of
contaminants.
The
presence
of
tetrahydrofuran
in
~7elis
5
and
6
in
addition
to
No.
4
during June—July
only
was
attributed
to
the
fact
that
the
compound
is a constituent
of the material used
to
solvent
weld
the
PVC
casing
pipe
(IEPA
Ex.
128).
A December
1
spilt samole taken from Well
#4
showed that TCE
levels
had
risen
from
230
ppb
October
25
to
:L4~000
pph,
based on
figures
generated
by
Frink~s
consulting
lab
Aquasearch
(IEPA
Ex.
128,
139,
hut
see
IEPA
Ex,
138
showing
68
ppb
and
11,000
pph
on
each respective
date),
Frink’~s hypothesized
to
the
Agency that:
“the dramatic increase
in
the
elevation
of
the
water
table brought
about
:b~the extraordinary
rainfalls
of
recent
weeks has entrained
contaminants
which were
adhering to
soil
particles
and carried
them
into
the
well
(No.
4).
The well
itself has
been
pumped
almost
constantly,
and
a
cone
of
influence
has
been
created
so
that
groundwater
immediately
adjacent
to
the
well
moves into it from
all
directions”
(IEPA
Ex..
139).
Internal
review
of
these
documents
by
the Agency indicate
t1~atvarious
personnel
discounted
Frink’s
explanations.
It
was
concluded
without
explanation
that
there
had
been no adequate
52-454
9
testing to prove that Tanks 1—4 were free of leaks.
The
underground tanks near well
4 were also found not to have been
proven leak—free.
The lagoon excavation was ruled out as a contamination source
on several theories.
One was the dramatic increase in synthetic
organic chemicals between October and December.
Another was that
while the lagoon sludge did contain two contaminants found in Well
4,
4 others were found in the well water.
Question was raised as
to whether Well
4 actually monitored the lagoon area as opposed
to the tank area, and whether the May and June analysis of it
were
comparable because of differences
in sample analysis methods.
It
was opined that the contamination source could be continuous, as
the August—September pumpage of 100,000 gallons of water
from Well
4 could have purged the aquifer, and so depressed the October
readings
(IEPA Ex.
135,
138,
141).
On or about December 27, 1982,
a temporary test boring was
drilled
at
a
point
9.5
feet
south and 6.7 feet east of the
southwest corner of the pump building
(R.30,
Pet.
Ex.
1).
A
mud
stirring
sample
was
split
for
analysis
by the Agency and Frink’s
contractor Aquasearch Laboratory.
Frink’s sample vial was broken
in transport to the Aquasearch laboratory in Oak Creek, Wisconsin,
but an analysis was nonetheless performed.
In a January 11,
1983
letter to the Agency, Frink’s reported that its anaylsis indicated
that
the
“sample
is
clear”
(Ex.
144).
The
Aquasearch
laboratory
report,
submitted
at
hearing,
indicated the presence of 1500 ppb 1,2 dichioroethane and 200 ppb
dibromochloromethane
(H.O.
Ex,
2).
The Agency laboratory analysis,
which
was
submitted
to
the
Board
June
28,
1983,
stated
“organic
solvents not detected”
(Agency Ex,
164).
The special analysis
form did not indicate detection levels for the method.
The
covering
letter
to
this
exhibit
indicated
that,
while
the
analysis
had
been
completed
January
13,
1983,
that
no
“Special
Analysis
Form”
had
been
completed
because
the
lab
intended
to
do
a
second
analysis.
The
form
was
completed
“early
in
May”,
1983.
Frink’s was verbally advised by the Agency that it suspected
the various underground tanks of being contaminant sources.
Frink’s therefore determined to take all underground tanks out of
service, and to implement
closure
plans
on
them
all.
As of January 17,
1983 Frink’s had narrowed its permit
application to a request for an operating permit for Tanks
1—4
only.
As Tanks 1—4 had been certified as sound,
it was Frink’s
belief
that
they
could
be
eliminated
as
a
possible
pollution
source.
Frink’s suggested that a limited operating permit be is-
sued for the four tanks,
with conditions,
among others, that Well
4 be continuously monitored and that the groundwater monitoring
program Frinks had submitted be put into place
(IEPA Ex.
145).
52-455
10
On January 19, the Agency received results
of
a Well
4
sample taken December 28 and 30, showing TCE readings of 550 ppb
(IEPA Ex,
146).
The
Frink’s
application to operate Tanks 1—4 waF
denied the same day, for the reasons quoted at p.
1—2, ~
At hearing, the parties stipulated to admission of well
samplings
since
denial
of the permit.
Well
4
showed
TCE
readings
of
4200
ppb
January
19
and
260
ppb
March
2.
Testimony presented
at
hearing
will
be
discussed
in
the
context
of
the
issues
as
argued
by
the
parties~~
ISSUES
~it
The
first
argument.
between
the parties concerns whether and
what
requirements
of
Chapter
7
provide
the
umbrella
framework
for
the Agency~sdecision in this matter,
Fririk~s
asserts
that
Chapter
7
does not apply at
all, since its facility is not the
“solid waste management site” the
chapter
was
written
to
regulate.
Frink’s argues that,
“(by
so
calling a facility like Frink~s
the Agency succeeds in shoehorning the site into the permit
requirements
of
Chapter
7,
but
then
is
left
without
any standards
within that chapter to govern the rest of the permitting process”
(Brief at 3).
The Agency of course argues that the Chapter does
apply.
More specifically, Frink’s argues that the Agency should have
determined only whether a permit should issue to operate Tanks
1—4,
The
Agency
explains
that
Rule
202(a)
of Chapter 7 requires
an operating permit for each “site” which has
received
a
Rule
201
development permit.
Since the “site” to be developed consisted
of 4.8 acres, the Agency argues that it was required to look at
the “site”
as a whole and could not
assess
a
four—tank
site
as
Frink~swould have had to apply for a modification of its’site
development permit in the form required by Rule 205 and to have
received such a permit before the Agency
could
issue
a
four—tank
permit.
It further argues that this does not amount
to
a
mere
exercise in ~paper shuffling”, since the configuration of
a
groundwater monitoring program would vary depending on whether a
4.8 acre
site
or
a
one
building, four~~tank
site is at issue.
The
Agency says that Frink~sshould have known that modification of
its development permit was needed, since it had requested
modification of its development permit in 1981 in order to install
additional monitoring wells.
Frink~sargument is that even
if applicable,
Chapter
7 does
not specify that closure of a portion of a facility is a
modification of development, or that installation of monitoring
wells
is one either,
although so treated by the Agency (see also
R,
103).
Frink’s finds it “particularly bizarre”
that it had
applied for permission to install additional
wells at the Agency’s
suggestion and in its suggested locations
in October,
1982 in
52-456
11
the context of its operating permit reapplication, that the Agency
did not suggest that the operating vs. development application
procedure was improper, or otherwise respond to the request,
throughout multiple communications,
and then denied the operating
permit on the basis that the wells which could not be installed
without a permit had not been installed.
The
Board
agrees
that Chapter
7 by its terms does not apply
to the Frink’s facility, although the permit requirements imposed
by Sections 21(d)—(e) of the Environmental Protection Act of
course do.
The need to revise Chapter
7 has been acknowledged by
both the Agency and the Board, but the process has been delayed
for the reasons stated in the Order in R82~2i, 22, June 16,
1983,
In the interim, use of the procedures contained in chapter
7 for
the permitting of waste facilities not covered by that Chapter
is
imminently reasonable,
The Board will not however agree
with
the
Agency’s
position that
Chapter
7
precludes
it
from
issuing
permits
to operate
a portion of
a
facility
which
has
obtained
a
development
permit,
The Board
will
not
determine
whether installation of
groundwater monitoring wells
is, in every
case, more appropriately
the subject of a development permit or an operating permit.
in
this case, however,
the Board finds it impermissible to deny an
operating permit on the grounds that no wells had been installed
where wells could not be installed without a permit.
This leaves
for resolution then the question of whether the monitoring program
outlined would have been adequate had the wells been installed,
as well as the questions relating to the cause and source of ground-
water contamination at Frink’s,
Groundwater moni~9~nplan
Concerning adequacy of the groundwater plan,
the Agency
argues that the plan is inadequate to monitor either the 4.8 acre
site or the four—tank site.
As to adequacy of the plan t~omoni-
tor the 4.8 acre site,
testimony at hearing was that the plan for
well location was deficient.
The asserted deficiency was that it
was not based on the results of test borings,
but instead relied
on the locations suggested by the Agency (after its consultation
with the State Geological Survey).
Test borings would have
provided information on actual water table levels and would have
allowed verification of the direction and flow of groundwater
movement.
(R.
77—80,
89).
The Agency testified that it “usually”
is presented with such data
(R.79) but the record does not
indicate that data was ever requested by the Agency after its
receipt of Frink’s proposal to install three additional monitoring
wells.
The Agency’s denial letter indicates that the installation
of the proposed monitoring wells would have provided much the same
information as would have the never~requestedtest borings.
The Agency’s four-tank site argument
is that a program
admitted to be adequate for the site as
a whole had the wells
been installed,
is inadequate to monitor a four—tank site because
a monitoring well should have been located closer to the tank
52-457
12
building.
Frink’s
reply
is that the proposed well
7
(being 100
feet from the pump building as measured on Pet.
Ex.
1)
is as
close as is practicable to the building, in that the space between
proposed Well
7 and the building is occupied by a road,
a
berm,
a
pumphouse and all the piping ‘which connects the pumphouse to
Tanks 1-4.
The Board finds that the groundwater monitoring plan
submitted by Frink’s is adequate,
for purposes of permit issuance,
to monitor both the 4.8 acre site and the tank building within
that
site..
The
Board
notes that in issuing permits of various
types for various media,
the Agency has historically reserved the
right to require further and additional monitoring
*
The moni-
toring of groundwater is as yet an inexact science
(or art), and
the Board believes that “ilnitially,
refinement is less important
than comprehensive coverage,
no matter how preliminary or
approximate
...“
(IEPA.
Ex.
119,
p.2).
Frink’s proposed plan
provides such comprehensive coverage.
The well location is based
on the judgment
——
even if preliminary,
or approximate
——
of one
of the nation’s most respected state geological surveys.
Integrity of Tanks 1-4
The Agency’s position is that the inspection report and
certificate of the integrity of Tanks 1—4 provided by Frink’s
engineer Erwin Tocber in August,
1982 was inadequate to justify
issuance of a land division operating permit for the tanks,
although it had found them sufficient for the purpose of issuing
“short-term land division supplemental waste stream permits to
authorize acceptance of particular wastes and their “treatment”
in the tanks as authorized by the air division operating permits
expiring February
5, 1983.)*
Arguments in support of this are
several.
The first is that the report does not contain details
concerning the manner in which the inspection was made,
beyond
the report
that
the tanks were drained and entered for inakection
(see R.72—73),
Frink’s rejoinder
is that
no details were ever
requested, either before or after Agency supplemental permit
issuance, and that the Agency could have been, but elected not to
be, present during the inspection
(R,
84,86).
The Agency argues that another deficiency is that the
certificate was “only a statement as to the
then
present
condition of the tanks,
No representation was made that the tanks
would remain structurally sound throughout the life of the site”
*
The parties each accept the fact that the air operating
permits provided sufficient authorization to operate the tanks
even after expiration of the land division experimental permits
and continued denial of land division operating permits.
The
Board does not question the assumption that the tanks were operated
pursuant to a permit, but points the matter out as another example
of the pragmatic, but “seat-of—the-pants” operational mode which
the Chapter 7 deficiencies have created.
52-458
13
(Agency Br. at 9). Frink’s understandably histrionic reply,
reduced to its essentials,
is that no professional engineer
could
actually certify to anything other than the condition of
a
tank
at
the time of inspection.
A corollary to each of the preceding arguments is essentially,
that Frinik’s should have known that the level of proof necessary
to allow Agency issuance of a long—term permit would be different
than that for a short—term one, and should have known to
provide
additional information.
Frink’s notes that as of January
14,
1983, the Agency’s Mr. Theios had stated that the information as
to the integrity
of
Tanks 1—4 was adequate;
the
permit was
denied January 19
(R.
51—53)1.
The Board cannot accept any of the Agency’s arguments.
The
construction plans
for the tanks called for pouring of
a PVC
waterstop over the
tanks
to prevent leakage through cracks in
the
concrete,
Frink’s engineer certified the tanks as sound, which
certification was accepted by the Agency.
While “life of site”
information is appropriate for consideration of a landfill permit,
it
is obviously inappropriate for predicting tank integrity.
No
guarantee of “life of site” tank integrity could ever be supplied.
Frink’s notes its submitted plans for routine cleaning and
inspection of tanks
(which would be incorporated into any permit)
are intended to supply this sort of information as time goes by.
Groundwater Contamination
Based on the foregoing,
it
is the opinion of the Board that
Tanks 1—4 have been compellingly eliminated as a source of
groundwater contamination,
The Board need not make
a finding as
to the cause or source of the groundwater contamination which
occurred at the Frink’s site.
The Board need not so find, because
this
is not an enforcement action.
The record in this action is an affront to the Environmental
Protection Act on a number of levels.
The
permit history
concerning this site reflects the sort of confused, bureaucratic
jungle which frustrates permittees and lessens public confidence
in the review system.
The
permit denial smacks of enforcement by
other,
impermissible means,
Whether or not the lagoon excavation
as conducted caused the groundwater contamination, and whether or
not the details of the operation were agreed to by Frink’s and the
Agency or prescribed by the Agency over Frink’s objection, hind-
sight has certainly proven the event to have been frought with
judgmental
errors.
Those errors have been only compounded by the
fingerpointing with which this record is riddled.
The Agency’s June 28,
1983 submittal to the Board of the
results of the Agency’s January
13 lab analysis of the water from
the December 28 test boring deserves independent mention.
The
Board
is at a loss to know why 1)
the Agency lab did not “report”
the results of its January 13,
1983 test before “early in May”,
52-459
14
even if it did wish to perform a reanalysis and 2) test results
of which counsel for the Agency “first become aware of during the
week of June 13, 1983”
(IEPA.
Ex.
164, p.2) did not reach the
Board until June 28, two days before the Board’s decision date.
Frink’s voluntary closure of all its underground tanks
should
at least eliminate these tanks as a possible future pollution
source; whether it will pinpoint the source of past pollution is
of course unknown.
If the groundwater has not been purged of
contaminants as of the writing of this Opinion, the Board expects
the Agency as well as Frink’s to expeditiously take all remedial
actions necessary to effectuate a clean—up.
Any disputes
concerning financial or other liabilities should be brought
before
an appropriate decisionmaking forum.
In summary,
the Board finds that the Agency’s denial of an
operating
permit
for Tanks 1-4 was in error,
The
permit to be
issued in response to this Opinion and Order shall include
conditions requiring installation of the proposed additional moni-
toring wells,
and regular maintenance and inspection of Tanks
1—4.
In order to prevent problems which have arisen in certain other
hotly contested permit denial appeals, the Agency will be ordered
to issue said permit within 45 days of the ‘date of this Order.
This Opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
The Agency’s January
19,
1983 denial to Frink’s Industrial
Waste, Inc.
of a permit to operate Tanks 1-4
is reversed,
The
Agency shall
issue a permit consistent with this Opinion within
45 days of the date of this Order.
IT IS SO ORDERED.
I, christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above
pinion and Order
was adopted on the
~c~’-
day of
_____________________
1983 by a vote of
_________________
flJd~__~1
~
Christan L. Moff~1~Clerk
Illinois Pollution Control Board
52-460
KEY TO
APPENDIX
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