ILLINOIS POLLUTION CONTROL BOARD

March 25, 1976

KRENZ TRUCKING, INC.,

Petitioner,

v.

)

PCB 75—429

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

Mr. Samuel T. Lawton, Jr., Altheimer & Grey, appeared for the

Petitioner;

Mr. John Rein, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin):

This matter is before the Board on a Petition for Variance

filed by Krenz Trucking, Inc. (Krenz) on November 3, 1975, requesting

relief from Section 21(e) of the Environmental Protection Act (Act)

and the permit requirements of Rule 202(b) (1) of Chapter 7: Solid

Waste, of the Board’s Rules and Regulations. The Board found that

Petition inadequate in an Interim Order entered November 6, 1975,

and required additional information from Petitioner which was

submitted November 21, 1975; further additional information required

by that Interim Order was submitted on February 5, 1976.

A hearing was held in the matter on January 14, 1976 in Woodstock,

Illinois. A Recommendation from the Environmental Protection Agency

(Agency) was received on January 16, 1976. A written evidentiary

submission, in lieu of appearance at the January 14, 1976 hearing,

was received by the Board on March 15, 1976 from Dwight J. Dick,

the objector in this matter under Procedural Rule 404. Comments

on the Record were also received on March 15, 1976 from the McHenry

County Defenders, a public environmental group which had objected

to an earlier Krenz Variance.

The solid waste management site which is the subject of this

Variance Petition is located in an old gravel pit area near the

Crystal Lake Airport, in McHenry County. The site has been operated

by Krenz since April 24, 1975, under a previous Variance granted in a

consolidated Enforcement-Variance case, PCB 74—387 and PCB 74—457,

16 PCB 439 (1975). The Board there found Krenz in violation of §21(e)

and Rule 202(b) (1) for prior operation of the site without the required

operating permit, and granted a Variance from December 6, 1974 until

December 5, 1975 to allow operating without such permits. The Board’s

Opinion in PCB 74-387 and PCE 74-457 contains all of the facts essential

to this case, and need not be fully repeated here.

A summary of the relevant facts from the earlier case, and those

which we find in this case, is as follows:

20—3Th

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1. Krenz originally applied for an Agency operating permit

on October 30, 1974.

2. That application was denied by the Agency on January 28,

1975, for lack of sufficient proof that the site would not cause

water pollution, particularly through the infiltration of leachate

into ground water.

3. In PCB 74-387 and PCB 74-457, the Board approved Krenz’s

plan to completely fill and close the site by Fall of 1976. 16 PCB

at 440. While the Board did not find that this plan would “guarantee”

the avoidance of ground water pollution, it did find the plan to be

“the best solution to an intractable situation.” 16 PCB at 440. The

Board’s approval was tied to strict conditions concerning methods of

operation and closure, and the Board stated that “conscientiously

carrying out the Order in this case will be an important consideration

if Petitioner applies for another variance in late 1975.” Id.

4. Krenz again applied for an operating permit on October 28,

1975. That application, and amendments thereto, were based in part

on the monitoring of additional test wells ordered by the Board in

PCB 74-387 and PCB 74-457.

5. Krenz’s new permit application was denied by the Agency on

December 30, 1975. The denial was again based on Agency uncertainty

as to the site’s effects on ground waters, in conjunction with an

Agency policy of requiring strict examination of potential leachate

problems from solid waste management sites located on old sand or

gravel pits,

(R.

104).

6. Since the entry of the Board’s Order in PCB 74-387 and

PCB 74-457, Krenz has complied with the conditions imposed there, and

has improved its methods of operation at the site. However, because

the site was closed during the pendency of the prior case, because

some areas were discovered to contain less fill than previously

estimated, and because the volume of fill coming into the site has

diminished, Krenz has been unable to keep up to the schedule set out

in the prior Order.

We are still faced with the “intractable situation” noted in our

prior Opinion. The Agency states it is still unable to determine that

the site will not cause pollution of ground water, and has again refused

to issue a permit for operation at the site. However, the Agency is

not sure, on the other hand, that the site will cause such pollution;

its Recommendation states, (at p. 11), “the Agency has not determined

that a permit could never be issued for the site.” (Emphasis in

original.) The difficulty apparently is that the Agency feels that

monitoring at 5 test wells in and near the site (two of which were

ordered by the Board in the previous case) is inconclusive on the

subject of leachate infiltration. The Agency feels that two additional

wells must be dug before any final determination can be made, (R.98;

Rec., p. 12).

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—3—

On these facts we are constrained to grant the requested Variance.

The hardship found In our prior Opinion is still present for Petitioner,

other businesses using the site, and the public in the area. Against

that hardship we must balance the following environmental effects:

1. The effect on ground water is potentially

severe, but significant testing to date shows incon-

clusive results; there may in fact be no adverse impact.

2. Over the long run, the Agency’s principal

witness agreed that, “as a practical matter,” Krenz has

no reasonable, feasible alternative to its present program

for final closure of the site, (R. 105). That witness

also agreed that by following its plan, Krenz will lessen

the potential for leachate by reducing the amount of surface

water flowing into or through the site, (R. 101).

We shall again grant the Variance for a one—year period, in

hopes that the two new additional test wells suggested by the Agency

and agreed to by Krenz will provide sufficient information on which

to make a final determination, CR. 110). We shall require those

wells as conditions to the Variance grant, as well as continuing

in effect most of the conditions contained in our earlier Order,

with minor changes in the schedule.

As an additional condition to the Variance, in response to the

written submission of objector Dwight J. Dick, we shall require that

Krenz take whatever actions as are necessary to prevent blowing litter

in the area of its site. Mr. Dick’s comments indicate that the Krenz

site may be a considerable source of litter pollution, in violation

of Rule 306 of Chapter 7: Solid Waste, which requires daily collec-

tion and cover or storage of litter. In a letter received at the

Board on March 17, 1976 Petitioner agrees that litter is a problem,

and itself suggested that a Variance grant be conditioned on allevia-

tion of the problem.

We note that this is an unusual situation. While the Board does

not favor the grant of Variances from permit requirements, and would

prefer that where Variances are necessary they concern substantive

regulations, this situation does not allow for that type of solution.

Both parties are acting in good faith. The Agency is unable to issue

the permit due to lack of certainty, and Krenz is taking all reasonable

steps to operate in compliance with the Act and our Regulations. We

allow this Variance from the permit requirement only because no other

remedy is feasible,

This Opinion const

1

tut:es the Finc3

i~q~

cf fact

and

conclusions

of

law of the Board In LhIs

nnit

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—4—

ORDER

1. Petitioner Krenz Trucking, Inc., is granted a Variance from

Section 21(e) of the Environmental Protection Act and Rule 202(b) (1)

of Chapter 7: Solid Waste, of the Pollution Control Board Rules and

Regulations, from December 6, 1975 until December 5, 1976, to operate

its solid waste management site in McHenry County, Illinois without

an Operating Permit from the Environmental Protection Agency, subject

to the following conditions:

a. Petitioner shall comply with all conditions

(1 through 8) in PCB 74-38 7 and PCB 74-457 (Consolidated),

except as modified below.

b. Petitioner shall install two further test

wells at locations approximately 300 feet north and

south of the site, respectively, with specifications

to be approved by the Environmental Protection Agency,

to monitor and test underground water parameters

previously agreed to by Petitioner and the Environmental

Protection Agency.

c. As soon as practicable in Spring of 1976

Petitioner shall commence final cover operations in

all completed sections of areas #1 and #2; final

cover to be completed by May 31, 1976, and seeding

to be completed by July 1, 1976.

d. Petitioner shall, wherever possible, apply

all intermediate and final cover to completed sections

of area #3 by May 31, 1976, and shall continue to

apply final cover as portions of that area receive

fill and are brought up to final grade.

e. Petitioner shall take whatever steps are

necessary to prevent blowing or other litter from

leaving the site; as a minimum, portable litter

fencing shall be used as needed in the immediate

area of the working face at the site.

2. Petitioner shall, within thirty (30) days of the date of

this Order, submit to the Environmental Protection Agency at the

address shown, the followinq cort:iication:

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TO: Environmental Protection Agency

Manager, Variance Section

2200 Churchill Road

Springfield, Illinois 62706

I, (We),

_____________________________

having read

the Order of the Illinois Pollution Control Board

in case No. PCB 75-429, understand and accept said

Order, realizing that such acceptance renders all

terms and conditions thereto binding and enforceable.

Mr. Jacob Dumelle concurred.

Mr. James Young concurred.

SIGNED

TITLE

DATE

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the bove Opinion and Order were

adopted on the ~

day ofU

1976 by a vote of

_____

Illinois Pollution

trol Board