ILLINOIS POLLUTION CONTROL
BOARD
November
5,
1981
TECHNICAL SERVICE COMPANY,
)
INC.,
a Corporation,
Petitioner,
v.
)
PCB 81—105
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
MR.
THOMAS J.
IMMEL, BURDITT AND IMMEL, APPEARED ON BEHALF
OF THE PETITIONER;
MR. WILLIAM E. BLAKNEY, ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board on a June 22,
1981
petition for appeal by Technical Service Company,
Inc.
(Technical
Services)
to reverse the decision of the Illinois Environmental
Protection Agency
(Agency) announced on June
9,
1981 denying
Technical Services’ developmental permit
for a non—hazardous
solid waste management facility located in Henry County, Illinois.
The permit application had been submitted to the Agency on
March 11,
1981.
Hearings were held on August 25, August 26,
September
23 and September 29,
1981 in Atkinson, Illinois.
Members of the public were present and did testify.
Technical Services has applied for this permit to accept
generally aqueous wastes
(possibly sulfur dioxide
(sic) and
dissolved oils) which would be brought into the facility by
truck
(R.
39—42).
As originally proposed the project included
the recycling of oil after separation of oil and water
in Pond
Number One; two additional ponds
for temporary storage of waste
water;
a land treatment basin to evaporate water; disposal
trenches to receive soil and residual solids;
and
a sludge drying
bed to receive thick aqueous sludges.
The subject property is
located in an area which was strip mined approximately forty
years ago
(R.
57).
Pond Number One has been developed and presently contains
several hundred thousand gallons of liquid including poly—
chlorinated biphenyl contaminated oil.
That pond is the subject
of litigation
in the Henry County Circuit Court
(R.
44—46)
and
has been specifically excluded from the permit application which
is under consideration here
(R.
43).
44—41
—2—
In its petition for permit review, Technical Services
alleges that the Agency’s denial dated June
9,
1981 is either
void or defective for the following reasons:
1.
It was issued a day beyond the time limit
for Agency
action;
2.
It alleges purported violations of the Environmental
Protection Act,
which are not even alleged
to have
occurred on the property which is the subject matter
of the March
11th application;
3.
It contains serious misstatements of fact and indeed
contains several statements which are false and
were known to be false at the time they were made;
4.
It was issued without affording the Petitioner
an
opportunity to answer, contest,
or rebut the allegations
contained in the letter which formed the basis for
the denial,
in violation of both State and Federal
law; and
S.
The denial is further based
on technical reasons
which are fully rebutted by technical information
supplied to the Agency during the permitting process.
First,
the Board finds that the permit did not issue by
operation of
law due to expiration of the time limit for Agency
action prior to Agency denial.
It is true that Section 39(a)
of
the Environmental Protection Act
(Act) allows the applicant to
“deem the permit issued”
if the Agency
fails
to take final action
“within 90 days after the filing of the application.”
However,
Procedural Rule 105(a)
states that “any period of time prescribed
by these rules or the Act shall begin with the first business
day following the day on which the act... occurs.”
Since the
application was submitted to the Agency on March 11,
1981,
final
Agency action was not required until June 10,
1981.
Since the
Agency’s denial letter was issued on June
9,
1981,
it was timely
and the permit did not issue by operation of
law.
Second,
in
a permit appeal review, the issues are defined by
the Agency’s denial
letter.
The burden of proof
is placed upon
the applicant to demonstrate that the reasons for denial detailed
by the Agency are inadequate to support a finding that permit
issuance will cause
a violation of the Act or Board rules.
Thus,
Technical Services’ allegations
are best considered in the context
of the denial letter, which cites fourteen possible violations of
the Act in consecutively numbered paragraphs.
Paragraphs
1 through 7 of the denial letter center on
activities occurring at Pond Number One.
The Agency contends that
the site is in violation of Sections 12(a) and
(d), and 21(a),
(d)
and
(f)
of the Act and Rules
210,
302(A) and 501(D)
of Chapter
7:
44—4
2
—3—
Solid Waste,
in that special and hazardous wastes have been placed
in the pond threatening to cause water pollution,
that these
activities were carried out without proper permits or manifests
and without paying the necessary fee,
Technical Services, on the
other hand,
contends that the substances deposited in that pond
are not wastes at all,
and, therefore,
that it
was not required
to comply with any of these provisions.
This contention is based
upon their intent to recycle the material which was purchased for
$26,000 from Alcoa Aluminum
(R.
43—45).
Mr. Rapps, an engineer
working for Technical Services, testified that
it was acquired
for the sole purpose of resale and
that
had not litigation ensued
in circuit court,
it would have been sold by the time of hearing
(R.
46).
Technical Services argues further
that Pond
Number One
cannot be the basis
of permit denial
in that it has been
specifically excluded from the permit application.
The Agency certainly has the authority to consider the
general
area of the site in determining whether a
permit
shall
be
issued.
However,
the violations alleged
in paragraphs
1 through
7 are only material to this case insofar as they relate to the
prospective operator’s prior experience in waste management
operations.
There is no allegation that Pond Number One will
in
and of itself contribute to violations at the
applied
for site.
Further, these allegations,
coupled with those allegations
in paragraph
9 are insufficient to warrant
permit
denial based
upon the operator’s prior experience,
None of these allegations
have resulted
in a finding of wrongdoing
on the part of Technical
Services.
They all center on proceedings
in ~~le
v.
Technical
Services Company,
Inc.,
81—CH-8,
which is still pending.
Further,
Technical Services’ argument that the material
in Pond Number One
is not a waste
is at least arguably supported by the Appellate
Court decision in IEPA v.
IPCB and
Safe~y-KleenCo~2..,
No.
80-650,
PCB
80—12,
37 PCB
363,
Therefore,
the Board finds that paragraphs
1 through
7 and
9 are insufficient to support Agency denial
of the
permit.
For this reason the Board need not decide whether state
or federal law required a hearing on these issues prior to Agency
denial of its permit.
The Board also will not
consider paragraphs
8
and 12 as
a
proper basis
for denial
in that the Agency and Technical Services
filed a stipulation on October
9,
1981 that
these paragraphs are
no
longer in issue and
are withdrawn as a basis
for denying
the
permit.
Therefore, only paragraphs 10,
11,
13, and 14 remain for
consideration.
These allegations are as follows:
10,
The applicant has not submitted adequate proof
that operation of the solid waste management site will not
cause a violation of the Environmental Protection Act or
Rules
(Rule 207, Chapter
7)
and prevent the pollution of
land or groundwater
in that at least te~feet of clay, having
a permeability not greater than
1 x 10
cm/sec. has not been
44—43
—4—
shown to exist in the bottom and sidewalls of waste
impoundments and disposal areas.
The applicant has stated
an assumed permeability in the approximately forty—five acre
area that is comprised of mixed surface mining
spoil based
on two permeability tests performed of samples containing
shale,
but not identified as
to depth that were later
compacted prior to testing, and on permeability tests
performed on other parcels
of
land in the area.
The Agency
cannot conclude that such assumptions are valid.
Permeability tests performed on samples from the areas and
depth of the impoundments and disposal trenches would more
closely describe existing permeabilities in those areas.
The provision of clay
liners recompacted to measured
densities and moisture content could also result in
demonstration of the required degree of imperviousness.
No
such liners were specified.
11.
The preliminary hydrogeologic evaluation of the
Illinois State Geological Survey indicates widespread
deposits of water
laid sand and gravel in the Henry
Formation and that sand deposits have been mapped
immediately north of the site.
We cannot conclude that
permeable lenses do not extend into this area that has been
strip mined and is proposed for waste storage and disposal.
Data that describes the geological
sequences from
undisturbed areas in or around the proposed site were not
included with the data submitted.
13.
A correlation between the groundwater
level
information submitted by Technical Services and the depth of
the impoundments and trenches as shown on the site plans
indicate that if the ponds and trenches are excavated as
shown on the site plans,
the bottom of the impoundments
and trenches, including at least storage pond #1, would be
below the groundwater.
14.
The monitoring well design does not conform to
Agency procedures in that well screens are set into the
shale that underlies the spoil and not at the level of the
existing water table.
Screens set from the existing water
table to the depth of the shale could probably have
a better
chance of collecting soluble or liquid wastes that might
migrate out of storage impoundments or disposal areas.
The Board rejects paragraph 14 as
a sufficient basis for
permit denial.
Technical Services has indicated its willingness
to place or moqify any wells
in conformity with whatever the
Agency may require by way of permit conditions
(R.
137), thereby
safisfying monitoring concerns.
The Board also rejects paragraph 11 as a sufficient basis
for permit denial.
While the Illinois State Geological~Survey
suggested that there had been some sand deposits mapped north o~
44—44
—5—
the site, it also found that there do not appear to be any such
deposits beneath the site
(R,116 and 366),
Technical Services’
borings confirm that and “appear
to
be almost void of sand grains”
(R.
116).
Since Technical Services’
facility
lies within a strip
mined area,
it seems unlikely that sand formations would exist
within the spoil material which composes the site and which
extends substantially north of the site
(R,
117—120).
The Board also rejects paragraph 13 as a sufficient basis
for permit denial.
Once again, shortcomings in construction or
operation of Pond Number
One
cannot be used in this case as a
basis for denial
of a permit at another
site,
Further, the
placement of impoundments and trenches below the groundwater
table does not in and of itself pose a threat
to the environment.
If the liners of the impoundments and trenches are sufficiently
impermeable, environmental problems can be avoided.
However,
if
they are not,
any
such problems are magnified by placement beneath
the groundwater table.
Therefore, while this reason for denial
is insufficient standing alone,
it may well add to the sufficiency
of paragraph
10.
Thus,
this entire proceeding hinges upon whether Technical
Services has made
an adequate showing that the mine spoil
material which composes the
site
is of such permeability that the
environment will be adequately protected.
This is due to the fact
that in the original application no liners were proposed
ifor the
storage ponds and disposal
trenches, which are formed simply by
excavating the spoil
material
and compacting
the
surface to 95
of Standard Proctor
(Pet.
Ex.
5,
pp.
80—82).
However,
it appears
that even this compaction
will be unnecessary
in that the
in situ
density averages about
95.5
of Standard Proctor with
a lowest
reported field density
of
91.7
of Standard
Proctor
(Pet,
Ex.
14).
Technical Services
hired Whitney and
Associates
to perform
permeability tests on
the mine spoil material
(R.
47~48);
TWO
samples were ~alyzed
with reported results of
2.1 x 10~°cm/sec.
and 5.6 x
10
cm/sec.
(Pet,
Ex.
5,
p.
44 and R.
53—54)
at
Standard Proctor
(R.
61),
Since
the
in situ compaction is
less
than St~ndardProctor,
Mr. Rapps assumed
a maximum permeability
of 10.
cm/sec.
(Pet,
Ex.
5,
p.
47 and R.
(Sept.
29)
p.
168).
Dr.
Piskin,
an
Agency engineer,
disagreed with
that
assumption
(R.
337—339).
He
felt, based upon his
experienceS that
the6perrneahility of
mine spoil material would
he
between 10
and
10
cm/sec.
(R,
362),
He
also
testified that the ~poil material
is basically saturated silt which
will
not have
10
cm/sec.
permeability
(R.
379).
—7
Without deciding whether permeability
of
less than 10
cm/sec.
is required,
the Board nevertheless upholds the Agency’s
denial
of the permit on Lhe basis that Technical Services has
*
Since the September
29 transcript
is numbered rather than
following from earlier transcripts R(Sept.
29) will be used
to designate it,
44—45
—6—
not made an adequate showing that the permeability of the in situ
material
is such that the environment will be adequately protected
by its use as
a liner material.
The Agency correctly noted that
only two
permeability
tests were run
on
samples which were taken
from indefinite depths and which were compacted beyond their in
situ levels
(see
Pet,
Ex,
5,
Part
IV).
Technical Services does present testimony and exhibits in an
attempt to overcome these shortcomings, but even this additional
information falls
short of the necessary
showing.
For example,
grain size
analyses
are presented for twelve samples
(Pet.
Ex.
5,
Part
3,
pp.
31—42) which show reasonable
uniformity
of composition.
However, grain size is but
one factor which determines
permeability.
Similarly,
Technical Services has
provided
a soil composition
analysis of 56.4
silt,
35.2
clay
and 8,4
sand
(using A.S.T.M.
standards) and
has compared that to other
sites ~ith sim~lar
compositions which exhibit permeabilities
of
10
to 10—
cm/sec.
(Pet.
Ex.
11).
However,
these classifications
are
solely dependent
upon grain size and,
therefore, have no greater reliability than
that the grain size analyses.
Finally, John Taylor, an employee
of Mr.
Rapps, has indicated that the permeability of
samples
tested is representative of soils found
over
the entire site,
but this assertion is
largely unsupported
(Pet.
Ex,
5,
Part 4),
Technical Services has7failed to demonstrate that the assumed
maximum permeability of
10
cm/sec.
is in fact the maximum perme-
ability which exists at the bottom and sides of
the
ponds and
trenches.
The
two samples were tested
at a compaction which was
not the same as in situ conditions,
and
Technical
Services has not
demonstrated that the assumed
maximum
necessarily follows from the
test results.
Further, even
if such a
showing
had
been made,
Technical Services
still
would not have met its burden of proof
in
that it failed to demonstrate
that
those two samples were in fact
representative of the
site as a whole,
or even
of
the
areas imme-
diately surrounding
and under the ponds and trenches
involved here.
For those reasons the Agency~sdenial of Technical Services’
permit is upheld.
Of course, Technical Services may reapply for
a permit upon remedying these deficiencies,
This
Opinion
constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The
Board hereby affirms the Illinois
Environmental
Protection
Agency’s
June 9,
1981 permit
denial
in
this matter.
IT
IS
SO
ORDERED.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the
ab9ve
Opinion and Order
was adop~don the ~
day of
~
1981 by a
vote of
~.S-L’.
44—46
Illinois Polluti
~ntrol
Board