ILLINOIS
POLLUTION CONTROL BOARD
February 17,
1982
ALBURN,
INC.,
Petitioner,
v.
)
PCB 80—189
80—190
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
)
Respondent.
ROY M.
HARSCH (MARTIN, CRAIG, CHESTER & SONNENSCHEIN) APPEARED ON
BEHALF OF PETITIONER.
H.
ALFRED RYAN, JUDITH GOODIE, AND MARY JO MURRAY (ASSISTANT
ATTORNEYS GENERAL) APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the October 14,
1980
appeals by Album,
Inc.
(Album) of certain conditions contained
i~a construction permit
(80-190) and an operating permit (80—189)
each of which was issued by the Illinois Environmental Protection
Agency (Agency) on September 26,
1980.
The permits govern
operation of a liquid waste incinerator constructed in 1974 and
located at 2400 East 119th Street,
Chicago, Illinois.
The
procedural history concerning both the initial issuance of these
permits and the appeals before the Board has been lengthy,
coa~plex,
and in the Board’s experience, more than usually adversarial.
Album,
incorporated
in October 1978,
assumed physical
operation of the incinerator in fall, 1979, operating pursuant to
a permit expiring December
3,
1979 issued to one William Petrich,
a predecessor in interest
(R. 714, 720,
Alb.
Ex. 12,
Att.
6).
On
September
7,
1979 Album
applied for renewal of this operating
permit, which application was supplemented by letter of January 2,
1980
(Alb.
Gr.
Ex.
6,
Ex.
12).
Following a meeting with the Agency
January 22,
1980, a further supplemental request for a renewed
operating permit was submitted January 24,
1980.
Additional
information was supplied in response to Agency request on
February 12,
1980.
This permit was denied February 20, 1980.
However,
on January 23,
1980 Album
had made initial
application for a construction permit, which the Agency granted
February 20,
1980,
“to permit debugging,
stack testing and
establishment of maintenance and operating procedures for the
facility” (Agency Ex,
1,
5
Mb.
Ex.
4,
It.
22).
45—397
2
Album
then operated on an infrequent basis,
making
modifications
to its scrubber and conducting unofficial stack
tests.
An official
stack test,
required by the construction
permit,
was conducted June
2,
1980
(R.
279—80,
417—18,
Aib.
Gm.
Ex.
6).
During this period,
Alhurrt was engaged in frequent
discussion with the Agency.
By letter of July 16,
1980 Album
sought modification of the
February construction permit,
insofar as
it prohibited incineration
of “chlorinated organic waste”
(Alb.
Ex.
5,
It. 26).
On August
6,
1980 Album
requested Agency reconsideration of the Agency’s
February 20 denial
of the operating permit renewal application of
September,
1979 as supplemented January,
1980
(Alb.
Ex.
5,
It.
13).
On September 9, 1980 the Agency issued
to Album
a revised
construction permit,
and an initial operating permit.
These permits by their terms expired January
9, 1981
(which
issue is one of the many here appealed).
On January 26,
1981
the Agency purported to issue new permits, conditions
of which
were appealed by Album
February
13, i9~1in PCB
81—23,
81-24.
On March 19,
1981 the Board dismissed PCB 81—23,
24, holding that
“u)nless
the proceedings
in PCB 80—189 and 80—190 are
to be withdrawn, and modified or new permits are to be
subsequently issued the prior permits remain
in full
legal effect.. .if permit applicants appeal
a permit
to the Board,
and subsequently
try
to settle their
contentions with the Agency,
then upon resolution of
those contentions the appeal
to the Board should be
dismissed.”
In response to an Album
motion,
on May
1,
1981 the Board
stayed the effect of contested conditions of the September,
1980
operating permit
and of the contested revisions made September,
1980 to the February 1980 construction permit.
The stay has
continued
in effect during the pendency of this action,
despite
Agency motions to lift it, based
on the Board’s repeated findings
that no environmental harm has been alleged, and that Album
had
alleged that lifting of the stay would cause
it great economic
harm (Orders of June
10, July 15, November 5,
1981).
After
a particularly acrimonious discovery period
(see Orders
of May 28 and June 16,
1981) hearings
in these appeals were held
July 16,
17,
24,
27,
28 and August
5,
1981.
Both Album’s Brief
of October 30,
1981 and the Agency’s Brief of November 24,
1981
request the Board’s review of various evidentiary rulings made
by the Hearing Officer.
PENDING MOTIONS
Album
moves the Board
to
strike certain testimony of Agency
witnesses Bharat Mathur and James Cobb,
both of whom reviewed and
wrote the permits here at issue.
Their testimony indicates that
45—398
3
they relied upon certain information not contained in the Agency
record as
required to be filed by Procedural Rule 502(a)(4).
The
motion is denied in part and granted
in part.
The Agency need not include in its record copies
of
IJSEPA
rules and proposals of which the Board
may
take judicial notice,
although citation to such materials would be of assistance to
both the Board and the petitioner.
Articles and textbooks
generally available and relied upon by practitioners
in the field
of
air pollution control
also need not be included in the Agency
record.
Album’s motion
is denied as
it relates to such material.
Where
as
a matter of Agency routine an employee has made
written notes
of discussions with USEPA officials or other persons,
and has relied upon such discussions
in drafting a permit,
such
notes should be included
in the Agency record.
As the record in
this case does not indicate whether telephone notes ever were made
of the discussions referred to in testimony, Album’s motion
is
denied.
Agency reliance was also placed on a 1974 stack test
(R. 953),
certain historical information
in the Agency files
(R.
864,
868),
and
a draft of the “Miter Report” to USEPA,
“an informational paper
presentingl
tentative information
for
limited distribution”
(R.
877).
These items should have been included in the Agency record,
as they are otherwise inaccessible
to the permittee and the Board.
Testimony concerning these items is accordingly stricken.
Album
also moved to delete testimony concerning the
existence of barrels
of waste on certain pieces of property near
the incinerator site.
This motion
is denied.
Album
has availed
itself of the opportunity to enter its own witness testimony
(R.
722—725)
to counter any inferences made in the Agency’s opening
remarks
(R.
32—35).
Finally.
Album
objects to failure on the Agency’s part to
answer with specificity Interrogatories
1 and
5 of June
1,
1981.
While Album
objects,
it requests no specific relief.
The Board
accordingly will take no action on what is, at best an untimely
protest.
The Agency has
“registered its obiection to the prejudice of
the Hearing Officer against the Agency from the beginning of the
proceedings”
(Brief at 51), particularly as they relate to a
conference
call ordered
to be made at hearing
(R.
743—44,
747—58,
804-5),
and “improper pre—judgment” of issues.
Reviewing the
history of the action
as well
as the 1000—odd page hearing record,
the Board finds no evidence of bias on the part of its Hearing
Officer.
As reflected
in the hearing record as well as
in appear-
ances before the Board itself,
this action has been characterized
by allegations by each party that the other has acted in bad faith,
verbal sparring, and other indicia of personal animus.
The Rearing
Officer has,
in the main,
properly and correctly exerted his
45—399
4
authority under
what were
apparently trying circumstances for all
concerned.
While the Hearing Officer offered remarks on ultimate
issues of the case, these comments did not abridge the parties’
rights to make a full record for the Board, which as the parties
are aware, makes
all ultimate
decisions on contested
issues.
THE FACILITY
The Album
site includes a liquid water incinerator with
scrubber,
a scrubber feed water pit, and a collection of waste
solvent storage tanks
(listed below).
Storage Tanks
Code
Description
Number
Ca~ac
j~al)
Al, A2(a)
day
tank
(batch)
2
4,500
U1,
U2
underground solvent tank
2
10,000
Ql,
Q2,
Q3,
Q’l, Q5, Q6
underground solvent tanks
6
10,000—12,000
P1,
P2,
P3
solvent waste receiving pits
3
2,000
T
waste oil tanks
l2~~
3,000—18,000
(a)
Respondent
Ex.
1;
—
(R. 584—586)
(b)
(R.
600)
The incinerator is a refractory lined tube
24 feet long with
a diameter of
5 feet
4 inches
(R.
103).
The burner, manufacturcd
by Hauck
(R.
175)
injects the waste
solvent through a one-eighth
inch orifice
(R.
87) on the centerline of the incinerator
(R.
980).
Residence time of the combustible material in the incinerator is
2.3 seconds
(R.
166).
The waste solvent is filtered prior to
blending
in the day tank and is filtered prior to the burner
(R.
109).
An automatic burner shut off will be activated if the scrub-
ber flow fails
(R,
167) or if there is no flame in the incinerator
(R.
457).
The temperature in the incinerator is monitored by a
thermocouple and is recorded on a strip chart
(R.
376).
The scrubber,
or spray tower,
is a chamber 21 feet high and
with a diameter of
18 feet which contains four
14’ foot spray
bars, each with 100 spray nozzles
(Petitioner Ex.
8).
The flow
rate of the scrubbant liquid is 500-700 gallons per minute
(R.
156).
The scrubbant liquid is waste water that is stored in a
200,000 gallon pit (Respondent Ex.
1).
The stack is 60 feet
high with a diameter of
8 feet
6 inches
(Petitioner Ex.
8).
45—400
5
APPEALED CONDITIONS
Album
appeals the following conditions
in each of its permits~
Construction Permit
1.
Expiration date of January 1,
1981.
2.
Installation of continuous monitors with strip chart
recorders for a) oxygen, carbon dioxide, carbon monoxide, and b)
hydrocarbons.
3.
Stack tests including raw feed characteristics and
volume
showing compliance with
(Rule 203(e)(3)
particulate
standard of 0.2 gr/scf corrected to 12
CO2 and showing 99.9
combustion and destruction efficiencies.
4.
Submission of
a plan for disposal
of stored waste “in
a proper manner other than incineration”.
(This waste had been
stored in the
“T” tanks by a previous lessee of the site.)
5.
Installation of an automatic interlock system causing
incinerator shutdown in the event of scrubbant flow failure or
improper reduction of combustion chamber temperature.
6.
“Requirements for Determination of Waste Similarity”.
7.
Limitation of future permits to waste for which
successful tests are received.
2perati~Permit
1.
Expiration date of January
9, 1981 with renewal
contingent on compliance with construction permit.
2.
Compliance with Rule 203(e)(3) emission standard of 0.2
gr/scf at 12
CO2.
a)
Receipt of Special Waste Disposal Permit for each
waste to be incinerated.
Permits not
issued if wastes do not
meet specifications.
1) higher heating value of at least
10,000 l3tu/lb.,
2) ash content 1
wt.
3) chlorine content
of less than
8
wt.
4) moisture content less than 10,
5)
flash point less that 140°F
b)
15 minute test burn prior to initial waste
acceptance.
c)
ManiEest discrepancy tests of successive shipments
to assure
1)
flash point difference of only ±10°F,
2)
moisture content of 10.
3.
a)
Limitation of incinerator feed rate to lesser of
3.5 gallons per minute or 2,000 lbs./hr.
45—401
6
4.
Compilation of incinerator
logs showing
a)
1)
Waste’s heating value and ash, moisture and
chlorine contents;
2) batch’s incineration time
3)
volume,
and
4)
specific gravity.
b)
logging of operating parameters every 15 mm.
for,
in the stack gas,
1)
temperature,
2) 02?
3)
C02,
and
4)
CO;
5) organic material concentration;
6) incinerator feed
rate;
7) scrubbant flow rate;
8) outlet scrubbant pH.
6.
Permit
limited to wastes meeting conditions 2(a).
Supplemental construction permit required to allow testing of
other wastes, with subsequent operating permits conditional
on
meeting condition
(3)
(stack test requirement) of the September,
1980 construction permit.
Prior to addressing specific conditions,
some general
observations
are
in order.
These conditions
fall into the
following general issue categories:
Rule 203(e)(3)—related
conditions;
monitoring and logging requirements concerning what
comes out of the stack and what actually goes into the incinerator;
permit and testing requirements relating to wastes received at the
site;
and miscellaneous conditions.
Conditions will be dealt with
in these general groups.
Construction permit conditions will be
designated as “C”
and operating conditions as
“0”.
This permit appeal
is somewhat anomalous.
Pursuant to
Section 40(c)
of the Act,
in considering this appeal the Board is
restricted to consideration of the information before the Agency
at the time the permit was granted
(see Order of January 21, 1982).
The record reflects however that some of the information relied
upon by the Agency has been supplemented and/or superseded by
information supplied to it by Album
in the course of subsequent
permit applications, and by information generated and arguably
applicable requirements imposed by USEPA during the course of
rulemaking concerning hazardous waste incinerators.
While
such
information can have no place in the Board’s decision as rendered
today concerning the Agency’s 1980 determination, the Board
anticipates that such information will be utilized by the Agency
in modifying the permit consistent with the terms of this Order.
RULE 203(e) (3) AND THE HYON DECISION
Album
contends that the conditions based upon and requiring
compliance with Rule 203(e) of Chapter 2:
Air Pollution should
be deleted, based upon two 1976 cases:
Hyon Waste Management
Services,
Inc. v.
IEPA,
PCB 75—413,
21 PCB 75
(April
8,
1976)
(“Hyon I”),
and Ryan Waste Management Services,
Inc.
v.
IEPA,
PCB
76—166,
24
PCB 419
(December 16,
1976)
(“Hyon II”).
In these cases,
the Board determined that Rule 203(e) was inapplicable to liquid
waste incinerators.
Based on Hyon
I and II,
Album
argues that
conditions
3(d) and
7
0
the construction permit,
and conditions
2,
2(a)(ii),
3(d)
and
6 of the operating permit are improper.
43—402
7
The Agency argues that the Board should repudiate the ~n
decision, which it believes were based on improper constructions
and applications
of the Act.
It further contends that the Board
has implicitly done so in the Opinion rendered In The Matter of
Particulate Emission Standards for Combustion of Low Carbon Wastes,
R77—5,
32 PCB 403
(January
4,
1979).
However, even assuming that
Ryan
I and II are controlling, the Agency believes that the
~onditions are proper and permissible.
In ~y~nI,
Hyon sought an operating permit for an incinerator
disposing of industrial liquid wastes.
The Board determined that
Rule 203(e) (2)
could not serve
as the basis for denial of an
operating permit to Ryan.
Rule 203(e)(2)
sets a 0.2 gm/scf
corrected to 12
CO2 for incinerators burning more than 2,000 but
less than 60,000 pounds
of refuse per hour.
A “troubled” Board
found that its Rule 203(e) particulate emissions standards apply
“only to incinerators burning primarily solid waste”
24 PCB 80,
78.
In reaching this determination, the Board noted that when it
adopted the particulate standards in R71—23
(April
13,
1972)
it
had defined “incinerator” as
a “combustion apparatus on which
refuse is burned”,
and that “refuse” was
at that time defined
in
the Act as “any garbage or other discarded solid materials”
(emphasis added)
Ill.
Rev. Stat,
Ch.
111½, Sl003(k)
(1975).
The
Board found that the 1975 deletion of the word “solid” by P.A.
79—762 reflected no conscious legislative intent to expand the
coverage of existing regulations.
The Board further observed
that the particulate
limitations when enacted were designed to
track Federal New Source Standards, which specifically limited
their coverage to “incinerators” burning “solid waste”.
The
particulate limitations,
particularly with regard to the 12
CO1
correction factor,
were found to have been based on the emissions
generated from burned coal or municipal
(solid) wastes.
The Board
found persuasive Hyon’s arguments that the correction factor would
“be inappropriate for application to incinerators burning largely
liquid wastes”.
The Board held that “the particulate limitation of Rule
203(e)(2)
is inapplicable
in Hyon’s case for grounds “sufficient,
individually; collectively,
..
.compelling”.
However the Board
~ienton to express
its belief that some control
over the
incineration process was necessary,
and its hope that Hyon, the
Agency, or any other source would propose applicable regulations.
Neither Hyon nor the Agency has proposed regulations generally
applicable
to liquid waste incinerators.
However,
three months
after
~
in R77-5,
Addressograph-Multigraph Corporation
petitioned
for an amendment of Rule 203(e)(4),
which set a
standard for new incinerators not covered by 203(e)(l—3)
of
0.1.
gr/scf corrected to 12
CO.,.
While the petition did not specifically
seek relief exclusively fo~petitioner’s “aqueous waste incinerator”
alone,
Addressograph’s
incinerator was found to be the only
affected source in the state.
45—403
8
The Board adopted a rule of
statewide applicability amending
the CO
correction factor to 50
excess air.
It noted record
infonJtion suggesting that the 50
correction factor would be
an
appropriate correction for all incinerators, but limited the rule
to incinerators of the Addressograph type due to the limitations
of the record before it 32 PCB at 404.
R77-5 impliedly overrules ~
insofar as it states, without
discussion,
that the Addressograph incinerator was subject
to
Rule 203(e)(4).
The two Opinions could,
of course,
be rendered
consistent by a finding that ~
is restricted to its facts, and
the applicability of Rule 203(e) (2) to
a particular incinerator.
The Agency believes that this should,
at least, be done,
as Album
has not argued the inapplicability of the 12
correction factor
to its incinerator,
as did Hyon regarding Rule 203(e)(2)
and
Addressograph regarding 203(e)(4),
However,
in view of the
sweeping
language in ~n
regarding the particulate standards,
the Board believes that the drawing of such narrow,
legalistic
distinctions is not within the best interests of the Agency,
the
regulated community,
or the public.
Over Album’s objections,
given that Hyon was never appealed,
the Agency argues that in deciding ~
the Board should have
given recognition to legislative redefinition of the term “refuse”.
In support, it cites the opening paragraph of Chapter
2,
Part
I:
General Provisions, which provides
“Except as hereinafter stated and unless a different
meaning of a term is clear from its context, the
definitions of terms used
in this Chapter shall be the
same as those used in the Environmental Protection Act”
in the Agency’s view,
the Board itself clearly intended new
definitions to be incorporated into its rules, and accordingly
Rule 203(e)
should be found applicable to
liquid waste incinerators.
In incorporating future legislative definitional changes
into its rules,
however, the Board did not intend to have its
regulations thereby apply to classes of sources the character of
whose emissions were not considered on the record in a regulatory
proceeding.
Such a de facto enactment of what is essentially a
new regulation and which bypasses the public notice,
comment, and
economic impact assessment requirements of Title VII would be
beyond the scope of the Board’s authority.
This is the essential
message
of the Hyon decision, the validity of which the Board
reaffirms.
Accordingly,
as in ~
the Board finds that Album
is not
hound by the Rule 203(e) particulate emission standards.
It
is,
of course,
subject to the provisions of the Act and Chapter
2
45—404
9
prohibiting air poliution,*
The Agency has shown no basis,
independent of
Rule 203(e),
for imposition of that rule’s particu-
late standard, citing only its general authority under Section
39(a)
to impose necessary conditions.
This
is insufficient to
support inclusion of these conditions,
which must therefore fall.
MONITORING OF INCINERATOR OPERATION VIS A VIS
~~NCOMING
WASTE STREAM MONI’I’ORING
Permit Duration
Prior to consideration of the arguments on the merits of the
technical incinerator and waste stream conditions,
the context
for their inclusion must be established by consideration of the
arguments concerning the duration of each permit
(C
#1 and 0 #1).
The Agency initially asks the Board to note language
in the
February 20,
1980 construction permit
(to which Album
was subject
during the pendency of the application for the instant permit)
“The issuance
of this permit
is not based upon an
independent engineering judgment, by the Acrency, as to
the performance of the emission source and the adequacy
of related control equipment.
Instead the Agency is
issuing this permit based upon guarantees by the permit—
tee and equipment vendor that the emission source and
control equipment will comply with all applicable
standards.
The Agency is
issuing this per!Bit in the
understanding that to require detailed infbrmation,
at
this time, would place an unreasonable burden upon the
permittee.
The Agency is
issuing this pe~rmitas a
convenience and the permittee agrees that he understands
the full circumstances surrounding the permit issuance
and is representing to the Agency that sufficient
information cannot be presented at this time to allow
engineering review by the Agency.”
Albui:n Ex.
4,
Item
22.
*The Board notes that this arguably does
not leave Album
entirely free from meeting a specific particu.ate
standard,
as
was Hyon in 1976.
As Album
itself states,
“Lthe
majority of
the waste material Album
incinerates are cla~sifiedas hazardous
materials pursuant to the USEPA’s RCRA regulations”
(Br.
15 16)
subjecting Album
to the requirements of obtaining
a
RCRA permit.
USEPA’s January 23,
1981 interim final “Incinerator Standards for
Owners and Operators of
Hazardous Waste Management Facilities”
imposes
a performance standard of
180 mg per dry standard cubic
meter
(0.08 gm/scf)
(46 Fed.
Reg.
7666,
69).
W~hileUSEPA has
proposed to suspend the effective date of
these
rules for existing
incinerators
(46 Fed.
Reg.
51407, October 20, 1S~81), no action
has
been
taken
on
this
proposal,
However,
UGEPA
issuance
of
RCRA
permits
for
such incinerators has
been
susp~’nded during
pendency of the proposal.
45—405
The Agency’s
position
is
that Album
had
made
various
representations
concerning testing to
be
performed,
equipment
to
be
installed,
and
athiltiorial
information
to be supplied upon
which
the Agency relied in issuing the
February,
1980
permit.
Album’s
operating permit application did not,
in the Agency’s opinion
“satisfy the February 20th permitsv
requirement
of
a comprehen-
sive discussion on the ability of the incinerator to operate”
(R.
830).
Monitoring equipment required and agreed by Album
to
be installed was not
in
place by
the
expected September 30, 1980
date
(Alb.
Ex.
4,
It,
13 at
p.
3).
The Agency’s permit manager
Dharat Mathur testified that, although he believed the permits
could
properly
have been denied,
in
response
to
Album’s
repeated
requests
for
an
operating
permit
an.t
various
representations
“because of
lack
of
prior
operating
information
and
the
vital
need
of
the
Agency
to
totally
understand
what
this
equipment
was capable of
doing,
we
agreed
to
the
operating
permit
for
a
limited
time,
to be further
evaluated after
all the equipment was
in place,
and the
Agency could then intelligently evaluate what was going
on at Album”
(R.
83l~32).
In short, the Agency was giving Album
the benefit of any
doubts about ultimate compliance with the Agency’s
information
needs and Album’s own representations, but would keep Album
on
a “tight
rein”
to insure
that
such was done promptly.
The Agency
essentially goes on to argue
that
Album’s “bad faith” appeal
here of conditions
0 #2(a)—(c) and C #2, which had previously
been agreed to or suggested
by
Album, are proof in hindsight
that the short permit terms were a necessary control upon Albumn.
Album
does
not
challenge
the assertion that it agreed to or
suggested several permit conditions.
However,
this was based on
its
consultant’s
belief that an “as blended” permit would be
issued
(R.
782).
Album’s
position
is that the
4
month
duration
of
these
permits, combined
with
the
requirement
of
receipt
of
supplemental
waste disposal permits which
take
up
to
3 months to obtain,
is
tantamount to permit denial.
Album
alleges that
it has
lost
customers due to the supplemental permit’s
long processing time
and short
life under
the
circumstances
(R.
650—51).
It also
alleges that it has
been
l:Lrnited
in its ability to obtain debt
financing,
due
to
lack
of any guarantee concerning its ability
to
operate
after
the
4
month
period
(R.
789).
C
#2(a
and
b)
monitoring,
0
#4(c)
logging
of
operating
parameters
The
requirement
for
continuous
monitoring
and
strip
chart
recording
of
0.,,
CO
and
CO2
was
consistent
with
USEPA
regulations
for
the
incineration
of
hazardous
wastes
as
proposed
December
18,
1978,
45
Fed.
Reg.
59008.
(The
federal
rules
as
adopted
January
23,
1981
require
continuous
monitoring
only
of
CO).
45~”4O~
11
Album
takes manual samples to monitor for these parameters.
It employs the commonly used Fmyrite system for CO2 and 02,
and
the Drager tube method for CO to arrive at these measurements.
Album
believes that once the incinerator reaches a steady state
of combustion,
further
testing
is
unnecessary
(R.
154,
155,
159).
It believes that
fluctuations
in
these
parameters would be
reflected
in
temperature
differentials,
which
are
the
subject
of
a continuous digital
readout
(R.
153,
376) or by visual
inspection
of air emissions.
Its argument is
that
the desired end—-complete combustion
as measured primarily by CO levels——is attainable by less costly
measures than installation of continuous monitors.
The Agency testimony
in support of the condition referred
to USEPA’s proposed rules, cited
lack of operating information
concerning Album’s facility, and noted that continuous monitoring
was an aid to the Agency’s
surveillance and enforcement programs
(R.
834).
Album
does
not routinely monitor for hydrocarbons,
which
are emitted
when
incomplete combustion occurs.
However,
it cites
June,
1980 stack
tests
as
showing
low
hydrocarbon emissions——0.7,
1.09,
and 1.08 ppm and a destruction efficiency of 99.95
(R.
349
and Mb.
Gm.
Ex.
9).
As there exists a relationship between CO
levels and hydrocarbon levels,
Athurn believes that maintenance
of low CO levels provides a reasonable indication of minimal
hydrocarbon
levels
(R.
160).
Album
further
notes that hydrocarbon
monitoring is expensive, difficult,
and a high maintenance item
(R.
631).
In
support,
the
Agency
states
that
not
only
do hydrocarbons
contribute to ozone formation,
but that “when hydrocarbons are
combusted and come out of the stack,
they combine and react with
each other to produce
products
of
combustion that nobody really
knows or can predict as to what they will be”
(R.
838).
The June,
1980 stack tests were discredited because there was never an
analysis of the waste which was incinerated
(R.
680,
683)
(although
there exists a dispute as to whether such analysis was the respon-
sibility of the Agency or Album,
R.
).
The Agency agrees that
there
is
in fact a relationship between CO levels and hydrocarbons,
but submits that it
is neither a direct relationship,
nor one
which has been reduced to any sort of equation
(R.
971-73).
The condition requiring the
logging
of
parameters
at
15
minute
intervals
is
based
in
part
on USEPA proposed rules,
and
installation
of
continuous
monitors.
The
Agency
admits,
as
Album
argues,
that
the 15
minute
interval “is impractical
if
all
the monitoring is performed physically”
(Br. at 46).
C#6”Waste Similari~y~”,C
#7
Future
permit limitation,
0 #2(a)
supplemental
permit,
(b)test
burns,
c)
discrepancy
tests,
0
#6
permit
limitation
45—407
12
Condition
2
of the
operating
permit is the condition from
which
flows the other challenged requirements, and around which the
others center.
Album
alleges that these conditions
improperly
ignore the character and operating requirements of its facility,
by regulating wastes on an “as received” basis rather than on an
“as blended and burned” basis.
The wastes which
Album
received
and incinerated prior to
issuance of the challenged
permits
and which it contemplates
continuing to receive and incinerate consist of solvents and waste
oils generated in the point industry, the graphic arts field,
and
in machinery and
other
operations and inüustries
(R.
79-81).
In
its January
23,
1980
letter to the Agency,
Album
submitted a
list
of solvents according to industry type,
its prospective customers
and a waste analysis of
26 wastes received in 1979
(Agency
Ex.
1).
Album’s permit
application
included a flow chart indicating
existence of its
several
holding
and
storage
tanks,
and
only
generally indicating that wastes received would be blended by
inclusion of
a box labelled “blending tanks”
(Agency Ex.
1).
The
application did not
contain
a
narrative description of Album’s
blending capabilities,
which
has
admittedly evolved since
September,
1980
(R. 249~250,703),
At hearing,
Album
explained that the waste it receives from
any particular source varies in quantity from as little as several
barrels to as much as 3,000
to
6,000 gallons
(R.
343,
344).
Received wastes flow by gravity into one of the six 10,000-12,000
gallon storage
“Q” tanks
(R.
586).
Stored wastes are then pumped
directly into one of two 4,500 gallon agitated “day tanks” for
feeding into the
incinerator,
or into one of two 10,000 gallon
“U”
mixing
tanks
for
blending
prior
to
incineration.
Album
states that it determines compatibility of
a newly
received waste with material already
in any given storage tank
before admitting new material into
a
tank.
This initially
involves comparison of composite samples of the new waste with
previous samples from that source regarding viscosity,
layering,
and odor,
and performance of
a palate test to arrive at estimated
Btu, water and chlorine contents.
Samples of the new waste are
mixed with samples
of the stored waste,
for the purpose of
observing occurrence
of
layering,
increase
in
viscosity
or
temperature,
or
evolution
of
gases.
While
layering occurs
in one
of ten compatibility
analyses,
Album
alleges that layering can
be corrected either
in
its
day
tanks
or mixing tanks
(R.
460—472).
The Agency does not challenge this description, but
strenuously asserts
that
Aibumn~s failure
to
provide
such
information mandated
“as
received”
restrictions to prevent the
environmental dangers
potentially
caused by either occurrence of
chemical reactions
between
incompatible
wastes or creation of
a
waste fuel incapable
of
proper
incineration
(e.g.
R.
842,
837,
874,
976).
Album
counters
that
lack of
a detailed written waste
45~
408
13
blending proposal does not justify this condition, as the Agency
is chargeable with knowledge of the existence of Album’s blending
operation.
In support,
it cites the fact that
a prior permit had
been issued for the facility,
and that Agency personnel had
previously observed the operation of the facility (see e.g.
R.
845—846).
While
the
Agency
does
not
specifically
address
this
point,
the
tenor
of
its
arguments
as
a
whole
are
that
it
is
the
applicant’s
duty
to
provide
the Agency with necessary information,
and not the duty of the Agency
to
“fill
in
the blanks”
in
a
deficient application.
Given the Agency’s l~~ck
of information
concerning blending,
and its dissatisfaction with the June, 1980
stack test with no waste feed analysis,
it
is of the opinion that
only two environmentally
sound courses
of action were open to it.
The first,
as outlined in the Agency brief
(at 39—40) would have
been
to
require
Album
to
conduct
a
thorough
analysis
of
each
waste
as
it
was
received,
and
then
to
submit
test
results
to
the
Agency
while
storing
the waste on site,
to conduct further trial
burns
or
stack tests as necessary,
and then finally either to
incinerate
the
waste
with
Agency
permission
or
to
ship
it
else-
where for proper disposal.
The Agency chose,
instead,
to impose
the challenged conditions
discussed
below.
C #2(a) requires Album
to obtain supplemental waste disposal
permits issued by the Agency’s land division pursuant to Chapter
7:
Solid Waste provisions..
This condition was not based on
requirements of Chapters
7 or
9 themselves
(R.
894).
Rather,
use of this existing procedure,
in the Agency’s view,
had the
benefits
of eliciting a detailed waste analysis,
of preventing
Album
from accepting waste
it
could not incinerate, and of
preventing creation of a new paperwork section within the air
division duplicative of
a functioning unit within the land
division.
Album
objects
to
the
condition
as
a
matter
of
law
on
the
basis that Chapter
7 solid waste requirements cannot be made to
apply to liquid waste incinerators.
It further argues that,
since supplemental applications submitted by Album
in February-
September,
1980 were not included in the Agency record, that it
did not rely on the information contained therein
in issuing the
September
permits.
Album
further states
that,
in practice, compliance with
this practice can take up to
90 days
(the
statutory
deadline
for
Agency
permitting
decisions),
by
which
time
a
waste
generator
may have taken his business elsewhere
(R.
457,
650—651).
This
requirement is viewed as being particularly onerous
in light of
the permit’s four month duration, also being challenged.
C #2(a)(1)—(5), containing limitations on characteristics of
individual
wastes,
were
based
by
the Agency on
the
contents
of
the
representative
waste
analyses
submitted
to
the
Agency
by
Album,
45—409
14
and
in part on Alburns own proposals.
The
Agency
objects
to
Album’s
appeal
of
conditions
for
this
reason,
and
for
various
independent
reasons.
The establishment
of
the
10,000
btu/lb,
heating
value
as
a
minimum
(a)(1)1
was
designed
to
insure maintenance
of an
adequate
temperature
(R.
947~48),
This
goal
could
be
attained
when
incinerating
waste
with
a
lower
htu
content, but for the
Agency’s
limitation
of
the
feed
mate
(based
on
Rule
203).
A
limitation
of
8
by
weight
was
imposed
on
any
waste’s
chlorine
content,
in
contrasL
~o th~
10
limit
requested
by
Album.
The January waste analyses indicated chlorine contents
of
less than 8.
The Agency’s choice of the 8
limit was based
on
“engineering
judgment”
and
the
desire
to
prevent
production
oh
halogenated
products
which
are
the
result
of
incomplete
combustion.
The difference
in
the
risks
between
an
8
and
10
chlorine concentration were not quantified by either party.
The 10
moisture
content
limitation
(a)(4)
was also
designed
to
insure
adequate
temperature
for
incineration
and
to
prevent
separation
and
inconsistencies
within
the
fuel
(R.
958).
Album
maintains
that
it has
successfully
incinerated
waste
alcohols
with
moisture
contents
of
up
to
40
(R.
475).
The
limitation
of
flash
point
to
less
than
140°F is
said
by
the
Agency
to
be
consistent
with
then-existing
RCRA
regulations
prohibiting
landfilling
of
low
flash
point
materials.
Album
believes
the
condition
is
arbitrary,
as
being
unrelated
to
the
ability
to
incinerate
materials
with
higher
flash
points,
as
is
the
Agency’s
unsupported
insistence
on
open—cup
as
opposed
to
closed—cup
tests.
The required
15
minute
test
burn
prior
to
acceptance
or
storage
of
waste
2(b)
was intended to insure that incinerator
operating
conditions
could
be
met
regarding
each
waste.
Album
objects
to
this
testing
of
each
waste
“as
received”,
and
in
addition
ob~ects
because
of
practical
difficulties.
When
the
incinerator
is
“down”,
a test burn
is
obviously
impossible.
Album
~itaintains
that
its
procedure
of
conducting
a palate test,
manifest
analysis
and
visual
observations
are
in
themselves
sufficient
to
allow
for
safe
acceptance and incineration of an
incoming
waste
load.
The
mainfest
discrepancy
test
requirements
2(c)
for
flash
point
and
moisture
content
are
challenged
as
being
impractical
and
unnecessary
(Album
notes
that
they
were
deleted
from
the
invalidated
permit
of
January,
1981),
Album
believes
that
its
existing
comparison
procedures are adequate to insure close
similarity of a given waste
load to previous wastes
shipped by
a particular generator, particularly as compared with tests taking
up to 1½ hours to
complete
while
a
hauler
waits
to
deliver
a
load
(R.
695).
45—4
10
15
The permit limitation condition
(0 #6)
is considered
objectionable first in that it refers to the challenged supple-
mental waste permit procedure, but further in that it requires
a supplemental permit for stack testing of wastes which do not
comply
with
all
of
the
challenged
parameters.
The
“Waste
Similarity”
characteristics
were
included
in
the
construction
permit
(C
#6),
according
to
the Agency “so that the
applicant
is
informed
that
the
waste
it
can
accept
can
vary
from
the specific parameters detailed earlier in condition 2(a)(1—5)
of the operating permit”
(Brief at 34).
Album
challenges this
condition on the grounds that they were “arbitrarily lifted
verbatim from a draft document prepared for USEPA entitled
‘Guidance Manual for Evaluating Permit Applications
of Incinerator
Units’”,
a document not contained in the record before the Board
(Brief
at
29).
The limitation of future permits to wastes for which
successful
tests are received
(C #7)
is objectionable because
it
prohibits
calculations
of
estimated
emission
values
based
upon
stack
tests
and
other information.
The
Board’s
Determination
The parties’ positions can be paraphrased most concisely.
Album
complains that the short construction and operating permits,
to whose conditions it originally agreed in the main (though on an
“as blended” permit basis),
do not take its operating capabilities
and requirements sufficiently into account, and create operational
impossibilities and absurdities.
The Agency replies that Album
should not complain about the permits,
since they were issued as
an accommodation and were as
closely tailored to the facility as
was possible given the fact that the Agency did not have sufficient
information about the facility’s operating capabilities and
requirements.
Joining the parties in their penchant for observations made
with the benefit of hindsight,
the Board will comment that the
Agency’s most proper action in 1980 would have been to deny the
operating permit and to issue a construction permit of
longer
duration.
The Agency’s goal was clearly to accommodate the
business
needs of
a potential waste disposer while protecting the
environment.
The results have been a business disaster for Album
and the delay of
a realistic determination concerning how useful
the site may be in furthering the expressed legislative preference
for disposal of hazardous wastes other than by deposition in
landfills
Section
22(h) of the Act.
In short,
expedition of the
permitting process has substantially delayed resolution of the
operating questions at issue.
The Board finds that issuance of a four month “accommodation”
operating permit to seek further information was an unsound
exercise
of the Agency’s permitting discretion.
The permit to
operate
should not have been issued until
information gaps had
been closed to the Agency’s satisfaction.
45—411
16
Given the Agency’s lack of information, which created an
unreasonable permitting situation from the beginning,
the Board
believes that the Agency’s required stack gas and incinerator
operation monitoming and logging
requirements was reasonable,
and necessary to accomplish the purposes
of the Act.
Close
monitoring of emissions from the stack and of incinerator
operations
is directly and reasonably related to the purpose
of.
insuring complete combustion and destruction of wastes,
and
prevention
of release of contaminants into the air.
Were the monitoring requirements not included in the permit
to directly measure the effectiveness of Album’s
operation,
agaTi~giventhe information
lack, the Board would find the tight
control
of wastes as received to be reasonable,
as an indirect
front-end check on emissions to the air.
Assuming that the Agency
had
no knowledge of
an
Album
blending capability,
restrictions
on the specifications of
each
waste received would also be viewed
as reasonable.
However,
given
the
monitoring
requirements,
and
the fact that the Agency had some,
although not detailed, knowledge
of
a blending capability,
the
dual controls combined to create
unreasonable,
overly—tight
restrictions which are not necessary
to
accomplish
the
purposes
of the Act.
Album’s initial
acquiescence to these conditions does not change the Board’s
thinking
in
this
regard.
The limitations placed on various waste characteristics
0
#2(a)
would,
of course,
guarantee that a waste blend would
violate none of the individual waste characteristics specifi-
cations.
However, in insisting that each waste meet
such
specifications,
an
unreasonable
prohibition
is
placed
on
the
burning
of a waste which individually could be difficult to
incinerate,
hut which could be safely destroyed
if appropriately
blended.
Permit prohibition
of incinerating waste blends beyond
set specifications
would. have been the more appropriate response.
(Use of the existing supplemental waste disposal permit system
was an administratively sound decision, though based on a faulty
premise.)
This permit condition must accordingly fall as applied
to each individual
waste, but would appear to be justified as
applied to waste blends
(to the extent the prohibitions are not
invalidated by the Board’s decision regarding applicability of
Rule 203).
Based on the record,
the Board will sustain the
Agency’s “engineering judgment” concerning the 8
chlorine
limitation on an “as blended” basis
as Album
has failed
to
prove
its unreasonableness.
The 0 #2 b) test burn falls for simi.ar
reasons,
as does
the 0 #6 permit limitation.
The
0 #2 c)
specified manifest
discrepancy tests also fall as unnecessary in this context
(in addition to being a condition eliminated by the parties
in the invalidated January,
1981 permit.
The 0
#7 and C #7 permit limitations cannot stand as written,
as they require testing of each waste.
Even within the scheme of
the two permits as written,
inclusion of the
C #6 waste similarity
45—4
12
17
tests baffles the Board.
As the operating
permit
required
a
permit
for each new waste stream,
and the relevance
of
this
requirement
to the construction permit has been nowhere explained,
inclusion
of
this condition cannot be sustained on any basis.
The foregoing is not to be read as preventing the Agency
from
requiring
Album
to
submit
an
analysis
of
each new waste
stream
it
receives,
from performing appropriate manifest
discrepancy
tests,
or
from being
required
to
prove
by
the use
of stack tests or other appropriate
means
that
a
waste
blend
with those beyond the challenged permits’
individual waste speci-
fications can be successfully incinerated.
MrscELLAr~EorJs_CONDITIONS
C
#4
Waste
Di~~Plan
Album
contests
this provision only
to
the
extent
that
it
is
required
to
submit
a plan for disposal of wastes “other than by
incineration”.
The
Agency’s arguments concern why a plan should
be required,
but
do
not explain why proper
incineration
cannot
be
allowed.
This condition shall therefore be revised to delete the
“no
incineration”
provision.
C
#5
Automatic
Incinerator
Shutdown
The
Agency
agrees
that
Album’s
existing systems serve
the purpose of this condition, which
is to prevent incomplete
destruction of waste.
Elowever,
Album’s
capabilities
were not
submitted to the Agency
in
the
permit
application.
While
the
Board will sustain
the
Agency’s 1980 decision,
it would anticipate
that these capabilities will be recognized in the reissued perrnit.
This Opinion constitutes the findings of fact and
conclusions
of law of the Board
in
this
matter.
ORDER
The
Agency’s
decisions to impose the contested conditions are
affirmed
in
part
and
reversed
in
part.
These
permits
are
remanded
for Agency revision consistent with the
terms
of
this
Order.
IT
IS
SO
ORDERED..
I,
Christan
L,
Moffett,
Clerk
of
the
Illinois
Pollution
Control Board, hereby certif
that the above Opinion and Order was
a$pPtedon the
day
of
~
1982 by a vote of
Christan L,
Moff
Clerk
Illinois
Pollutio
ntrol
Board
45—413
