ILLINOIS POLLUTION CONTROL BOARD
July
6,
1978
LEONARD C.
TRIEM,
d/b/a TRIEM
)
INDUSTRIAL BUILDING OPERATIONS,
)
Petitioner,
v.
)
PCB 77—261
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
KLEIN,
THORPE,
AND
JENKINS, LTD.
(MR.
E. KENNETH FRIKER, OF
COUNSEL) APPEARED ON
BEHALF
OF THE PETITIONER.
MS.
JUDITH
S. GOODIE, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Werner):
This matter comes before the Board on a Variance Petition
filed on October
4,
1977 by Leonard C.
Triern, doing business as
Triern Industrial Building Operations
(hereinafter
“Triern”),
requesting relief from the final cover requirement of Rule 305(c)
of Chapter
7: Solid Waste Rules and Regulations.
On January
19,
1978, the Illinois Environmental Protection Agency filed a
Recommendation in favor of granting the variance provided that the
Petitioner adhere to certain conditions.
On March 17,
1978,
the
Agency filed an Amendment to the Recommendation which suggested
additional conditions.
A hearing was held on April
28,
1978.
Triem has operated a sanitary landfill site at 26th and
State Streets in Chicago Heights, Illinois since
1947.
Prior to
Triem’s purchase of this southern Cook County site,
the land had
been used for refuse dumping by approximately 20 surrounding
communities since 1929.
Petitioner describes the site
(as of
1947) as a clay hole 20 to
30 feet deep surrounded by a solid
clay wall with a clay berm 15 feet high subsequently added by
Triem.
Before Triem’s ownership of the property,
“it was just
a
common dump where they ...durnped refuse of all types, including
industrial wastes and burned it.”
(R.
31)
The Petitioner,
in
describing his pioneering efforts at environmentally sound prac-
tices,
states that “as soon as I took over in early 1947,
I
cleaned
U~
that and employed the sanitary landfill method of
operation.”
(R.
31).
31—11
—2—
On August
5,
1976, the Board granted Petitioner a one-year
variance from the final cover requirements of the
Board’s
Solid
Waste Rule 305(c)
in PCB 76—32, in order
to allow Petitioner time
to complete the depositing of refuse on approximately 5
of the
45.7 acre landfill site and to take steps toward final, complete
and proper closure of the site.
Triem originally estimated that about 20 months would be
needed to complete final cover by applying approximately 89,540
cubic yards of clay cover material to the property.
However, the
1976-1977 fall and winter were two of the coldest periods in the
history of the Chicago metropolitan area.
Such severe cold caused
very deep penetration of frost which made the removal, hauling and
spreading of clay cover material extremely difficult.
In addition
to the severely cold winter,
the spring and summer months were
characterized by heavy and frequent rainfall which greatly
restricted
t.he application of cover material.
On May
28, 1977,
Triern ceased all depositing of refuse on the property.
For the
period from the grant of the original variance until September
8,
1977,
the Petitioner hauled 79,720 cubic yards
of clay material to
meet cover requirements.
It is now estimated that an additional
40,000 cubic yards of cover material will be required to complete
final cover to a depth of
2 feet and Triem is accordingly request-
ing additional time for this project.
The Agency has recommended that Triem be granted a variance
which should extend one year from the date of expiration of the
Petitioner’s previous variance in PCB 76-32
(i.e., until August
5,
1978).
The original Agency Recommendation suggested that,
as
conditions of the variance,
the Board should order Triern to:
(1)
submit an acceptable plan for correcting a potential water
pollution problem at the site;
(2)
test for migration of gas out-
side the landfill;
(3) correct any gas migration discovered;
and
(4) monitor the site for
3 years.
On March 17,
1978, the Agency
filed an Amendment to its Recommendation which suggested that Triem
be required to meet additional conditions.
The Agency recommended
that Triem should be required to:
(1)
apply for a permit to build
a barrier to seal an adjacent pond from the landfill;
(2)
apply for
a second permit addressing the disposal of wastewaters from Triern’s
adjacent steel processing plant which are deposited in a lagoon
adjoining the landfill;
(3)
place final cover on all areas of the
site which have been used for refuse disposal.
At the hearing on this matter, three fundamental issues were
raised which pertain to:
(1)
the time required to complete the
final cover of the landfill;
(2) the proper handling of methane
gas which may be discharged from the landfill; and
(3)
the
necessity for treatment of wastewaters generated from the
Petitioner’s adjoining steel plant.
31—12
—3—
In reference to the first issue, the record reveals that the
site in question was operated as an open
dump
for many years before
its acquisition by the Petitioner.
During the period from early
1975 until September 8, 1977,
the Petitioner placed a total of
262,493 cubic yards of clay cover material on the site,
indicating
a good faith attempt to achieve compliance.
(R.
33—34).
Accordingly,
it is appropriate to grant the Petitioner until
December 31,
1978 to place final cover on all areas of the site
which have been used for refuse disposal.
The second issue relates to the possibility that methane gas
is migrating from the landfill site to surrounding properties.
Mr.
Triern testified that nine methane gas burners had been installed
over the last three years “because we found we had some methane gas
odors we had checked out by a chemical engineer, and he advised
that we do this.”
CR.
38-39).
Nevertheless, there is some question as to the precise origin
of the methane gas.
Mr. Triem testified that,
in response to com-
plaints by people on neighboring properties,
a gas leak was found
in the Northern Illinois Gas line on 26th Street and that the gas
company repaired that leak.
CR.
39).
Testimony also indicated
that there are other potential sources of methane gas in the
vicinity of the Triem landfill
-
including two municipal sanitary
landfills and a sewage
treat.rnent plant.
CR.
93,
R.
116).
The evidence deposition of an Agency employee, Mr. Kenneth
Bechely, describes how the Agency first became aware of the possi-
bility of a gas migration problem and discusses some of the proce-
dures used to take samples from 3 separate locations near Triern’s
sanitary landfill.
(Respondent’s Exhibit 1).
The Agency made an
offer of proof as to the testimony of Agency employees Mr. Scot A.
Miller and Mr. Joseph Petrilli and as to Respondent’s Exhibit 14
(i.e., the
3 gas sample analysis reports)
after the Hearing
Officer sustained an objection to their admissibility.
Had it
been allowed, the testimony of Mr. Miller would have shown that
the gas in the three samples collected by Mr. Bechely contained
methane and carbon dioxide, and did not contain propane or ethane.
CR.
88-89).
The three gas sample reports would have tended to
support Mr. Miller’s statements.
(Respondent’s Exhibit 14).
Mr.
Petrilli’s testimony would have shown that the migration of gas
from a landf~,llcreates a danger of explosion.
(R.
101).
His
testimony also indicated that the way to determine whether gas
migration is occurring is to conduct appropriate tests.
The Agency has asserted that the Hearing Officer erred
in
sustaining the Petitioner’s objections to the testimony of Mr.
31—13
—4--
Miller and Mr. Petrilli concerning the results of tests on three
gas samples and the dangers of gas migration, and to the admission
of Respondent’s Exhibit 14 for Identification
(i.e.,
the
3 gas
sample reports).
The Hearing Officer believed that there was
“no proper chain of evidence on these samples” and that a gap in
the chain of evidence renders a laboratory sample inadmissible in
a civil case.
(R. 104).
On this issue,
the Agency’s offer of proof shows that the
3
gas cannisters
(and the, attached sample analysis forms which
identified each sample) were placed on Mr. Miller’s desk at the
Agency’s Springfield office on a Saturday by Mr. Petrilli.
(R.
98—100).
Mr. Miller testified that he found the cannisters
and
forms
on his desk the following day and delivered them to the
Agency laboratory.
(R.
83-85).
The cannisters were apparently
stored according to customary lab procedures until testing and
deterioration in such samples is not likely to occur.
(R.
95-96).
The Agency contends that the sample reports and the testimony
related to them should have been admitted into evidence and that
any gap in the chain of evidence should go to the weight of the
evidence rather than to its admissibility.
Woolley v. Hafner’s
Wagon Wheel,
Inc.,
22
Ill.
2d 413,
176 N.E.
2d 757
(1961).
While
it is true that the Agency’s handling of the samples left some-
thing to be desired in light of the strict legal rule on “chain
of evidence,” the attempted introduction of testimony and reports
was for the limited purpose of showing the reasons for the Agency’s
belief that corrective measures should be taken to locate and
divert any methane gas which may be migrating from the site.
Given the limited basis on which the evidence was offered,
the Board can appropriately evaluate the testimony and reports
for whatever probative value they have.
For example,
the Board
notes that the gas sample reports have failed to specify whether
the percentages of gas discussed are by weight or volume.
(Resp. Exh.
14).
These reports have also failed to include a
necessary ultimate analysis indicating each of the components of
the gases.
(Resp. Exh.
14).
Nevertheless,
the Board takes
official notice of the fact that the ultimate analyses of gas
from utility pipelines usually indicate relatively small percent-
ages of carbon dioxide
(which would tend to indicate the methane
gas in question was from a source other than the utility line),
and that methane is a flammable gaseous hydrocarbon
(CH4)
that is
a product of decomposition of organic matter.
The Board also
notes that a methane gas problem has previously been experienced
at the landfill site.
(R.
38—39).
Accordingly,
to guard against
any possible explosions due to methane gas migration,
the Board
believes that it is reasonable and prudent to require that
31—14
—5—
Triem Industrial Building Operations conduct all necessary tests
and take immediate and appropriate steps to correct any gas
migration problem.
The third major issue in this case involves the existence of
a potential water pollution problem.
The Petitioner believes that,
since the landfill was a clay hole when disposal operations com-
menced, no leachate is escaping from the site.
To support this
view,
it was emphasized that contractors installing a 48-inch
diameter sewer line to a depth of
15 to 32 feet, a distance of
1292.24 feet immediately west and down—gradient of the site
reported that only “solid, hard, clear clay material” was
encounted in the digging operation.
On the other hand,
the Agency is concerned that leachate
could be
a potential problem.
Directly south of the landfill in
question,
the Petitioner operates the Triem Steel Company which
has two discharge points outside the plant.
These two discharges
are joined in a ditch which has been cut through old, previously
filled areas of the landfill and flows west to the southwest
corner of the landfill.
There,
if the discharged material has
not already been absorbed into the ditch,
it is deposited in a
large pit.
Both the ditch and the pit show some discharged refuse
on their sides.
The discharged material is spent sulfuric pick-
ling liquor which initially goes into an underground mixing tank
where it is mixed with a neutralizer and is further diluted by
large amounts of run—off water that goes down into the same
sewer.
CR.
35-36).
No Agency permit has been issued for
these
discharges which are high in suspended solids,
iron and zinc.
Wastewater from the steel operation flows through a sewer
from the steel processing plant into a holding lagoon or pond
at the southwest corner of the landfill site.
(R.
23,
R.
36,
R.
52).
This pond also receives storm water from the site and
surrounding areas.
Mr. George P.anney,
a professional engineer,
testified that he was retained by Triern Industrial Building
Operations and that the design and construction of a barrier to
prevent seepage from the lagoon into the landfill site was
discussed.
(R.
13).
The Agency suggests that Triem,
as a condition of its
variance, be required to apply for a permit to build a barrier
to seal the pond adjacent to the landfill and to apply for a
second permit to implement an acceptable plan for disposal of
its industrial wastewater.
In light of the nature of the dis-
charges, this appears to be a reasonable requirement.
31—15
—6—
Accordingly,
after taking into consideration all the facts
and circumstances of this case, the Board finds that Petitioner
would suffer an arbitrary and unreasonable hardship if required
to immediately meet the final cover requirements of Rule 305(c)
of Chapter
7:
Solid Waste Rules and Regulations.
The
Petitioner
will be granted a variance from Rule 305(c)
until December 31,
1978,
subject to the conditions of the Order.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Mr. Leonard
C.
Triern d/b/a Triem Industrial Building
Operations is granted a variance from the final cover requirements
of Rule 305(c)
of Chapter
7:
Solid Waste Rules and Regulations
until December 31,
1978,
subject to the following conditions:
(a)
That the variance run from August
5, 1977 until
December 31,
1978;
(b)
That Petitioner apply final cover by December 31,
1978
to all areas owned or controlled by Petitioner at
the
subject landfill site which have been used for the
disposal of refuse;
(c)
That within thirty
(30) days of the date of the Board’s
Order herein, Petitioner submit a permit application
to build a barrier to seal the pond adjacent to
the
landfill;
(d)
That within sixty
(60) days of the date of the Board’s
Order herein, Petitioner submit a permit application
and project completion schedule addressing the dis-
posal
of wastewaters generated by Petitioner’s steel
processing plant;
(e)
That Petitioner shall take immediate and appropriate
steps to test for and to correct any gas migration
problems; and
(f)
That Petitioner monitor the subject landfill in
accordance with Rule 318 of Chapter
7 for a period of
three
(3) years commencing December 31,
1978.
31—16
—7—
2.
Within forty-five
(45) days of the date of this Order,
the Petitioner shall submit to the Manager, Variance Section,
Division of Water Pollution Control, Illinois Environmental
Protection Agency,
2200 Churchill Road, Springfield, Illinois,
62706, an executed Certification of Acceptance and Agreement to
be bound to all terms and conditions of the variance.
The forty-
five day period herein shall be held in abeyance in the event of
judicial review of this variance pursuant to Section
41 of the
Environmental Protection Act.
The form of said certification
shall be as follows:
CERTIFICATION
I,
(We),
having read
the Order of the Pollution Control Board in PCB 77-261,
understand and accept said Order,
realizing that such
acceptance renders all terms and conditions thereto
binding and enforceable.
SIGNED
TITLE
DATE
IT IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board,
hereby certify the abo e Opinion and Order were
adopted on the
_______
day of
____________________,
1978 by a
vote of
4~
~~L.Mo’~Dtj~k
Illinois Pollution
ntrol Board
31—17