ILLINOIS POLLUTION CONTROL BOARD

December 16, 1976

HYON WASTE MANAGEMENT SERVICES, INC.,

)

Petitioner,

v.

)

 PCB 76—166

ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

Mr. Robin Lunn, Attorney,

 appeared for the Petitioner;

Mr.

 Peter E.

 Orlinsky, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

 (by Mr. Zeitlin):

This

 matter

 is before the Board on a Permit Appeal filed on

May 26,

 1976 by Petitioner

 Ilyon Waste Management Services,

 Inc.,

(Hyon)

 In that petition, Hyon appealed from conditions

 in a

permit issued by Respondent Environmental Protection Agency

 (Agency)

on May 20,

1976

 (Permit No.

 03031508)

 Hyon’s Permit Appeal

is

brought under the provisions of Rule 103(a) of the Board!s Air

Pollution Regulations, which provide for the appeal of conditions

in any permit issued by the Agency as if such conditions constituted

a permit denial.

 Ill. PCB Regs., Ch.

2,

 §302(k)(1976).

 Cf.,

 Ill.

Rev. Stat.,

 Ch. 111—1/2,

 §1040(1975).

Hearings were held in the matter on September

 29, 1976,

and

again on October

 13, 1976.

 No public comment was received in the

matter.

 It should also be noted that no Agency record of permit

application was filed in this case,

 as required under Rule 502 of

the Board’s Procedural Rules.

 Ill. PCB Regs., Ch.

1,

 §502(1974).

The P~qencystated that because of the nature o~the case,

 such

filing was required,

(R.

9,

 Sept.

29,

 1976)

The subject matter of this case is Hyon’s waste treatment

facility in Chicago,

 which has been before the Board in several

previous cases.

 Even more surprisingly, however,

 this case is

before us

 for decision on

 a permit application record identical

to that in a case decided only recently.

 Hyon Waste Management

Services,

 Inc.

v.

 EPA, PCB 75—413

 (April

8,

 1976).

24—419

—2—

Because of discussion in prior cases, we shall not repeat a

complete description of

 Flyon’s Chicago facility.

 HyonWasteManage-

Ment Services,

 Inc.

v.

 EPA, PCB 75—457

 (April

8,

 1976);

~

Management Services,

 Inc.

 v. EPA,

 PCB 75—433,

 15 PCB 605

 (1975)

T~ipplernentalStatement by Mr. Dumelle,

 15 PCB 609)

It

 is enough

to note that

Hyon

 describes that facility as an “integrated waste

treatment facility,” where industrial wastes may be treated

chemically, biologically, or by incineration.

 The specific subject

matter of this case

 is the liquid waste incinerator,

 an operating

permit

 for which was also the specific issue in PCB 75-413.

The Agency originally issued an experimental open burning

permit

for

 Hyon’s incinerator system on August 19,

 1971.

 After

construction and testing under that permit and another subsequently

issued on September

18,

 1973, which expired on September

18,

 1974,

the Agency refused applications for further permit renewal.

On

November

20,

 1974,

 Hyon filed its initial Permit Appeal,

 and asked

as alternative relief

 a limited variance for testing purposes.

On February 27,

 1975 the Board dismissed

 Ilyon’s Permit Appeal,

but

granted variance from Rules

 103 (a)

 103(b)

 202(b)

 and 203(e) (2)

of

the Air Pollution Control Regulations until June

30,

 1975,

 subject

to certain conditions.

PCB

 74—433, supra,

 15 PCB at

 607,

 608.

On October~22, 1975, Hyon filed another Permit Appeal concerning

its incinerator, PCB 75—413.

 That case was based on

the

Agency’s

October 15,

 1975,

 refusal to issue

 a permit applied for by Hyon on

July

18,

 1975.

 That denial was based on the Agency’s determination

that,

 operating rate of 4,500 pounds per hour of liquid waste,

Hyon’s incinerator would violate the particulate emission limitations

in Rule 203(e) (2)

 of the Air Pollution Regulations.

The Board’s decision on that case

 (April

8,

 1976)

 found that

Hyon’s liquid waste incinerator

 is not subject

 to any presently

existing particulate limitation emissions.

 Our Order was that,

The decision of the Environmental Protection

Agency, dated October

15,

 1975, denying Petitioner

_an C)poratinq

 Permri

t

for

its

1iqu:id

 waste

incinerator

 be reversed

and

that

said

 Pc Litloner

i s en t: ILied to an OperaLing Perini t:

 Lliercfor

On May 11,

1976

 Ilyon filed a Petition for Writ of Mandamus

against

 the Agency in the Circuit Court of Cook County,

 based on

our April

8,

 1976 Order in P03 75-413.

 FI~~j~steManagement Co.

v.

Briceland,

 et al.,

No.

 76 L 8684

 (Cir.

 Ct. Cook Co.,

 Ill.).

 Before

any hearing in that case,

 however,

 the Agency on May 20,

 1976 issued

an Operating Permit to

 Flyon.

24—420

Because Hyon felt that the conditions

 in that permit were unduly

restrictive and constituted a permit denial, Hyon went

 to hearing

on the mandamus matter on May 26,

1976

 (the same day that the instant

case was filed)

 The Circuit Court Order of that date remanded the

entire matter

 to this Board for

 “a hearing to determine the legality

and propriety of the conditions contained

 in the Operating Permit

,dated May 20,

 1976,”

 The Circuit Court retained jurisdiction

in

the matter and ordered that Hyon be granted an Operating Permit,

(the conditions of which were to be negotiated between Hyon and the

Agency), during the pendency of this Board’s consideration.

After negotiations, the parties reached an agreement with

regard to an Operating Permit

 to be issued during the pendency of

this case,

 (Hyon,

Ex.

6)

 The Agency then issued an Operating Permit

on May 28,

 1976,

 (Hyon, Ex.

7).

 The provisions of that Permit are

somewhat similar

 to those of the May 20,

 1976 Permit which is before

us for review in this case,

Before resolving the substantive issues

 in this case,

 we feel

that certain procedural issues require discussion and resolution.

First among these is the Circuit Court of Cook County’s

 “remand”

of this matter to the Board,

It

 is not clear that the Circuit Court

has such remand authority.

 See,

 Ill, Rev.

 Stat.,

 Ch. 111—1/2,

§1041(1975).

 See,

 also,

 Id,,

§5

44,

 45(a),

 45(b).

 We feel that

the Circuit Court’s action may be treated as a stay pending concurrent

resolution by this Board of matters properly brought for its determi-

nation under the Environmental Protection Act

 (Act).

 Although the

Board has held that we will not concurrently decide issues being

resolved

 in a judicial forum,

 we do not feel that such a prohibition

is applicable under these circumstances,

As a final procedural matter,

 we note that the procedure for

permit condition appeals set up under Rule 103(k)

 of the Air Pollution

Regulations leaves open the issue of various burdens on the Permit

Appeal.

 Section 39 of the Act provides that, when a permit

 is denied

by the Agency,

 the Agency must reply to the permit applicant with a

detailed statement showing the reasons

 for permit denial.

 Neither

the

Act

nor

our

PuJes

provide

for

the

EU iny

any

in

staLe—

ment by the Agency with regard

 to any conditions

 imposed.

 This

raises some difficulties at hearing.

 Although a Permit Appeal

petitioner

——

 even in cases where

 it is a condition rather than a

denial being appealed

 unquestionably has the burden of proving

the Agency’s determination wrong,

 it is apparent that the lack of

a stated Agency basis for the imposition of permit conditions adds

considerably

 to that burden.

 Because there was some confusion in

this record as

 to the reasoni~q for the Agency’s imposition of some

conditions, we shall deal with each condition

 in the May 20,

1976

permit individually.

24

—421

—4—

Permit Condition

 2(c)

Condition

 2(c)

 in Hyon’s permit of May 20,

 1976 reads as

follows:

“The permittee shall burn only Type

 5 liquid industrial

wastes as defined in ATP-lA Incinerator Particulate Test

Procedure attached to this permit as Exhibit A.

 Such

wastes shall contain less than 2,7 percent

 (by weight)

 chloride at any time,

 less than

 1 ppm of heavy metals

(e.g.

 lead, cadmium) at any time,

 and less than

 1 ppm

of beryllium at any time,

 The Type~5 liquid industrial

wastes

shall

contain

 less than 0,4

 ash and non—combustible

solids at any time and have a heating content of not less

than 18,700 btu/lb.”

Hyon’s position is that,

 “The majority of hazardous wastes

which should be burned,

 incinerated,

 are halogenated wastes,

chlorinated wastes, and they contain a great deal more chloride

than this,”

(R.

 42, Sept,

29,

 1976).

 In addition, Hyon testified

that 18,700 btu/lb,

 is the heat value of most types of fuel,

including the fuels used by Hyon to provide additional heat when

the

wastes

being

destroyed

 do not contain sufficient heat value

for destruction,

(P.

 146, Sept,

 29, 1976)

 Hyon further claims

that there

 is no justification for the 0.4

 ash and non—combustible

solids limitation,

 These conditions, Hyon claims, render its

business economically impractical,

 and have no sound basis,

(R.

43,

Sept.

29,

 1976).

The Agency’s position, as stated in its Brief,

 is that the

types of wastes being incinerated by Hyon are particularly dangerous

and that the Agency has a “need to keep a tight rein on Hyon in

order to assure the maintenance of air quality,

 (Agency Brief at

6.)

The Agency further contends:

 “Whose judgment is

 it that those wastes

should be incinerated?”

 (Id.)

The Agency’s justification for the 2,7 percent chloride limi-

t:ation

is

hat

 ~uch

a

imi

tat

ion

 indioat

us

 I h(’

~‘Oflt(’tlt

of

 I he

materials

bciii~j hurried

by

 I-lyon during its sLack

Lusts,

rI~hu

Agency

ste Led

it

bean

 that the

ash

 and heat cont:en L

 I imi tati ons were

chosen because they “provide an adequate margin of safety,”

(R.

93,

Sept,

29,

 1976).

 The Agency’s Brief,

 at p.

7,

 states that,

 if Hyon

could substantiate different figures, the permit might be amended.

The Agency’s reasons for

the

 imposition of these conditions,

even

 in response on cross—examination at hearing, were simply

insufficient to justify their imposition.

 A “margin of safety”

 implies protection from something.

 Although, with the chloride

limitation for example, we have no limitation

 in our emission

regulations

 on chloride, we can assume that the Agency imposed the

24

—

422

—5—

limitation

 to prevent a violation of the Act,

 and specifically

§9(a)

 thereof.

 But the Agency’s witnesses at hearing nowhere

stated how a limitation on chlorides

 in Hyon’s raw material would

prevent a §9(a) violation.

 Although the materials to be burned at

Ilyon

—-

 including chloride

 are indeed potentially dangerous,

this

 is also true of a great many chemicals and materials commonly

used in industry.

 The simple statement that the conditions are to

“provide a margin of safety” from a potential danger, with no further

explanation,

 is insufficient,

As written,

 the condition limiting chlorides

 is unreasonable.

It may be, however,

 that some limitation on chlorides is necessary,

so we shall remand this condition to the Agency for consideration,

With regard only to the heavy metals limitations imposed

 by the

Agency, Hyon did not seriously or adequately challenge the Agency’s

decision.

 We agree with the Agency that because of the inherent

dangers associated with these pollutants, these limitations appear

to be necessary,

 and are upheld as reasonable.

The remaining provisions of condition 2(c),

 imposing additional

limitations on the liquids to be incinerated,

 are found to be

unreasonable.

Permit Condition 2(d)

Condition 2(d) provides that,

“The burning rate of the Type

 5 industrial wastes shall

not exceed 650 gal./hr.”

The Agency’s justification at hearing for this condition is

that the stack test provided in conjunction with Hyon’s permit

application indicated a burning rate of 650 gallons per hour for

the material burned during that test.

 The Agency simply states

that absent data showing that operations

 at a greater per-hour rate

would not cause air pollution,

 the Agency may properly limit a permit

to the circumstances under which an applicant has shown that no

viola t I

 occur

ilyon

 o (her ha rid

 a rqties

 t he t

its

opera

I

ens are

iiot

ec~nom

i

eel

a

I.

I

l~iL

rat

~‘,

end

 I lie

I

epprox

ime (ely

1

000

gel s./hr.

would

reasonable.

Again keeping

 in mind the potentially dangerous nature of the

material to be burned by Hyon, we still do not completely understand

the reason for the imposition of this condition by the Agency.

 When

adopting the emission regulations in 1972,

 the Board noted

 that,

 “an

expensive stack test

 is not necessary in all cases

 to demonstrate a

violation of numerical emission standards.

 Standard emission factors

have been developed on the basis of prior testing that enable one to

make fairly accurate calculations as to emissions...”

 (In the Matter

of:

 Emission Standards,

 R71-23

 (April 13,

 1972),

 (Opinion at

9.)

24

—

423

—b—

This statement must apply, we feel,

 to permit applicants seeking

a

permit,

 as well as to the Agency when

 it seeks to enforce.

 Indeed,

the Agency was willing to apply such calculations to Hyon’s appli-

cation with regard to particulates at 4,500 pounds per hour

 in PCB

75—413,

 We see no purpose in requiring that Hyon conduct extensive,

and expensive,

 stack tests for every potential type of waste to be

burned or for every rate of burning.

 The condition appears unreasonable.

Condition

 2(e)

Condition

 2(e)

 sets a minimum afterburner temperature in Hyon’s

incinerator of 2,500°F. This condition,

 one of the few for which

the Agency provided any real rationale, was shown by Hyon at the

October

 18, 1976 hearing

 to be unnecessary,

(P.

6,

 et seq.,

P.

18,

et seq.,

 Oct.

 13, 1976;

 EPA Ex,

 1—4)

Hyon showed that the complete destruction of the materials

to

be burned

 is determined by both residence time in the incinerator

and turbulence,

 as well as by temperature.

 Hyon demonstrated that

these factors, when combined,

 allow complete destruction in Hyon’s

incinerator of the materials in question.

In its Brief,

 (at 8), the Agency admits that this condition

may not be necessary to prevent air pollution.

 We find the condition

unreasonable.

Condition

 2(f)

Condition 2(f)

 provides as follows:

“Prior written approval from the Agency shall be required

for the burning of materials containing any of the

following:

(1)

 Toxic compounds of phosphorus,

 nitrogen and mercaptans.

(2).

 Pathological biological wastes.

I’est.

Ic ides

iid

 lierbi

cides.

(4).

 Polychlorinated biphenyl compounds

 (PCB’s).”

Hyon argues,

 in contesting

 this condition,

 that it

is,

(a)

unnecessary, and

 (b) not provided for in the Act or this Board’s

Regulations.

 The Agency’s contrary argument is that Hyon agreed

to a similar provision in

the

May

 28, 1976 permit order negotiated

by the Circuit Court,

 and that such a condition is necessary by

virtue of the hazardous materials to be burned by Hyon.

Even though the condition assented to by Hyon in the May 28

permit issued by the Agency is

 in fact somewhat different

 (in that

it sets

 a time limit for Agency action on such a request by Hyon),

we nonetheless feel that the assent by Hyon to such a condition

is

immaterial to our consideration.

 What

 is material

 is the remaining

basis put forth by the Agency to justify this condition.

—

424

—7—

Hyon argues

 that, without a permit,

 it cannot contract with

its customers for the destruction of the very materials for which

the Agency requires prior approval.

 It must be assumed, however,

that the Agency will act in good faith and provide its approval

on

 a timely basis within the framework of a generally applicable

Permit

for

the

destruction

such

hazardous

 material.

 Hyon’s

incinerator

 is designed,

 at least

 in part,

 for the destruction of

just

such

hazardous

materials

are

enumerated

this

condition;

we approved that concept in Hyon’s variance case,

 PCB 74—433.

15 PCB at

 606.

Although

Hyon

showed,

PCB

75-413

(the

record

which

was

incorporated

 in the instant proceeding)

 that at least two Agency

employees

have

publicly

made

statements

indicating

possible

prejudice towards Hyon’s operations,

 such statements do not indicate

that

the

Agency

will

not

fulfill

its

statutory

duty,

will

act

in a manner which

 is unnecessarily disruptive

 of Hyon’s operations.

Because of the potential dangers from the materials to be incinerated,

(see e.g.,

 Supplemental Statement by Mr. Dumelle in PCB 74-433,

PCB

609),

find

this

condition

reasonable.

Condition 2(g)

Hyon

argues

that

condition

2 (g)

 which requires temperature

recording

with

accuracy

10°F.

for

the

combustion

chamber

and

afterburner chamber in Hyon’s incinerator is not within the Agency’s

authority

under~Rule

103(b)

(7)

the

Air

Pollution

Regulations,

which allows the Agency to require that a perrnittee adequately

maintain its equipment.

 Although Hyon indicated that compliance

with this condition may be difficult inasmuch as the recording

device in question uses

 a recording pen whose lines span

 10 degrees

on the recording chart,

 and that an accuracy of 50°F.would be more

reasonable,

feel

that

such

requirement

within

the

Agency’s

authority under the reporting requirements

 of Rule 103.

 However,

the Agency agreed in its Brief that Hyon’s position in this regard

reasonable.

Condition

2 (h)

Condition

2(h)

the

May

20,

1976

permit

required

that

the

 water used in the Hyon scrubber contain no more than

 1 ppm of

hydrocarbons.

 Hyon argued that this condition

 is unreasonable,

The Agency,

 in its Brief,

 stated that it is willing to go along

with

 a less stringent standard,

 and we therefore feel that no

further discussion of this matter is required.

—

425

—8—

Condition_2(i)

Hyon argues that condition

 2(i), providing that the May 20,

1976 permit would not become effective until Hyon executed a

Certificate of Acceptance,

 is not allowed by the Board’s Order of

April

8,

1976

 in PCB 75—413.

 (“Petitioner

 is entitled to an

Operating Permit.

‘)

 We find this argument spurious,

 in that our

Opinion and Order of April

8,

 1976 was directed specifically

 to the

issue of particulate emissions,

 and not to the issues raised in this

case.

Permit Duration

The final issue contested by Hyon with regard to the May 20,

1976 permit is the period for which

 it was issued.

 That permit has

an expiration date of December

1,

 1976,

 a period of six months and

10 days from the date of issue.

 Hyon claims that the short duration

of this permit precludes

 it from obtaining long term contracts with

potential customers,

 interferes with its ability to obtain money

from banks or other lending institutions and makes it difficult to

retain employees.

The Agency claims that Hyon has not detailed these claims

with sufficient specificity.

 The Agency argues that the Act and

Rule 103(b)

(8)

 of the Air Pollution Regulations allow it full

discretion

determining

the

proper

duration

any

permit,

a limit of five years.

 We musts

 the. P~gencyalleqee, examine Hycin’s

failure to show with specificity the unreasonableness of the Agency’s

use of its discretion,

 and “balance,

 on the other hand,

the

Agency’s need to keep a tight rein on Hyon in order to assure the

maintenance

air

quality.”

(Agency

Brief

6.)

We find that the duration of this permit,

 as issued,

(a)

constitutes

 an appealable condition of the permit, and

(b)

 is not

justified.

While

true

that

the

Petitioner’s

case~ in

this

regard

did

lack

specificity,

the

testimony

which

Hyon

did

present

far

more benefit

the

Board

 in analyzing

this

case

 than

 the Agency’s

unsupported

 statement that a short permit period will allow it to

keep a “tight rein on Hyon.”

 The justification offered by the

Agency

has

apparent

connection

with

the

“maintenance

air

quality.”

24

—

426

—9--

PiBCh-~TON

Finding

that.

the

p’~rlad

the

jo

~rmi

and

cert:a

oen~i Liens

are

unreasoriabir

does

not

mean

that

lyon

snt:it

ccii

permit

for

five

years

 with

conditions.

cannot,

the

resoLd

before

find

 that: such a

permit

would

warranted

the

purpose

flic

permit

system,

app1

this

case,

prevent

air

pol

I utien,

wi thin

ci titer

the

meani n~ of

the

Act

this

Board’s

Regulations.

not

the

purpose

the

permit

system

regulate

the

capacity

operations

private

industrial

concerns,

except

insofar

those

factors

are

dinecti~

the

purposes

the

Act

and

compliance

with

our

Reaulations.

While

may

indeed

necessary

for

the

Agonc

upon

occas

ion,

condition

its

permits

narrowly

limited

operational

rates

and

parameters,

such

conditions

may

raise

serious

questions

not

properly

considered.

The

Agency

cannot

merely

say,

“as

 a condition

your

permit,

not

violate

the

Act

 or our Regulations.”

 Because

the

nature

Hyon’ s

operations,

the

Agency

must

reasonably

assured

advance

that

 Tlyon’s

operations

will

not

cause

:uch

violations.

But

such

conditions

rtiay

not

such

 that

they

are

tantamount

permit

denial.

Although

lyon

did

 nut:

show

conclus

:sel

this

case

that

the

conditions

its

 permit amounted

to

 a do facto

denial,

did

raise

that

possibility;

and

while

Hyon

has

shown

that some of the conditions

imposed

the

Agency

the

May

20,

1976

permit were indeed unreasonable,

has

not

shown

that

the

permit

——

requested

Hyon

-—

 has been adequately

 ustified, and should

therefore

issued

 by the Agency.

Our

Order

shall

reflect

our

findings

the

individus

permit

conditions

issue

case,

and

w LI

remand

t;he

met

 to the

Agency

for

issuance

of

 a pcrmit

compliance

with

our

 f ii~d

inqs.

Should

the

Agency

hat

any

furl

hur

 ttutt ton

 is lope retI

For

final

 permit

 is:;utno~,

Wa!

)innuIti(-aI

 ~toI~

ii~’d

ken

within

days

the

date

of

this

Order,

intl

poitte

ie;nance

to

 tate

place

within

 days

Let

 such

 intoi

mat

ion

lets

 betti

 auhin it

ted

Hyon.

hoped

that

this

procedure

wul

put

end

long

~nd

tortuous,

history

I itiqation

between

lyon

and

the

Aqer:c~.

This

Opinion

constitutes

the

findings

fact

end

ocuiclus

ens

law

the

 Board

in

Lflis

matter.

—

427

ORDER

THE

ORDER

THE

POLLUTION

CONTROL

BOARD

that:

Operating Permit No,

 03031508 is remanded to Respondent

Environmental Protection Agency.

 The Agency shall, within ninety

(90)

 days of the date of this Order,

 issue to Petitioner Hyon Waste

Management Services,

 Inc., ~anOperating

 Permit pursuant to Rule 103

of Chapter

 2: Air Pollution,

 of this Board~sRules and Regulations,

in conformity with the foregoing Opinion and Order.

 Any additional

information required for such issuance shall be requested by Respondent

Environmental Protection Agency within thirty

 (30)

 days of the date

of this Order,

 final permit issuance to follow within sixty

 (60)

 days

after the submission of such information by Petitioner Hyon Waste

Management Services,

 Inc.

 In connection therewith,

 the Board finds,

a,

 Conditions

 2(c)

 (except as it

limits

 heavy metals concen—

trations),

 2(d),

 2(e), and the permit

expiration

date

Operating

Permit No. 03031508 issued by the Environmental Protection Agency

to Hyon Waste Management Services,

 Inc.,

 on May 20, 1976,

 are found

to be unreasonable and are therefore stricken therefrom,

b.

 The Petition for Appeal of Petitioner

 Ilyon Waste Manage—

ment Services,

 Inc., with regard to

conditions

2(h)

and

2(g),

dismissed as moot,

c.

 Said Petition with regard to conditions

 2(f)

 and 2(i)

of

said Permit

 is denied,

Mr. James Young abstained.

 Mr. Jacob D.

 Dumelle concurred,

separately.

I,

Christan

ikof

~tt~

.:Cie.r

the

Illinois

 Pollution

Control

Board,

hereby

certi.

the

above

and

Order

were

adopted

the

 ~oei~

 19/ri

 L~ a

vote

______

Christan

IL.

 Moffet~

Illinois Pollution Control Board