Creates legal pleading papers

ILLINOIS POLLUTION CONTROL BOARD

April 5, 2001

PLEXUS SCIENTIFIC CORPORATION,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 01-120

(Variance – Air)

ORDER OF THE BOARD (by M. McFawn):

On March 5, 2001, Plexus Scientific Corporation (Plexus or petitioner) filed a petition

for a five-year variance from the prohibition against open burning found at 35 Ill. Adm. Code

237.102. The petition requests the variance to allow the open burning/“flashing” of buildings

and process equipment located at the load/assemble/package area (LAP) of the former Joliet

Army Ammunition Plant (JOAAP) site in Will County, Illinois. As Board regulations require,

the “[o]pen burning of wastes creating a hazard of explosion, fire or other serious harm” may

only be permitted through the granting of a variance. 35 Ill. Adm. Code 237.103. Petitioner

requests a hearing in its petition. Also before the Board today are petitioner’s March 23, 2001

motions for expedited review and for site visit, and the Illinois Environmental Protection

Agency’s (Agency) response to petitioner’s motion for site visit.

The Board has to date received three public comments in support of this variance. The

Board recognizes that the decontamination of the LAP area is a prerequisite to other restoration

efforts currently underway at the JOAAP, and encourages the swift and effective restoration of

this area to a productive use. However, as further explained below, the Board today finds

Plexus’ petition deficient and orders petitioner to file an amended petition by April 20, 2001,

to address these deficiencies.

PETITION DEFICIENCIES

Section 104.204 of the Board’s procedural rules lists the content requirements of

variance petitions filed with the Board. 35 Ill. Adm. Code 104.204. The Board finds that the

petition fails to adequately address all of the requirements of Section 104.204, and is therefore

deficient. Pursuant to Section 104.208, the Board may either order petitioner to supplement

the information contained in its petition, or dismiss the petition for lack of sufficient

information. 35 Ill. Adm. Code 104.208. At this time, the Board will issue an order

requesting more information.

The Board finds the petition deficient for the following reasons, and orders Plexus to

file an amended petition containing the information as required below:

Nature and Amount of Emissions for All Sites

Section 104.204(b) requires a petitioner to provide, in pertinent part:

A complete and concise description of the nature of petitioner’s activity that is

the subject of the proposed variance, including . . . (8) The nature and amount

of emissions, discharges or releases of the constituent in question currently

generated by the petitioner’s activity. 35 Ill. Adm. Code 104,204(b)(8).

The petition proposes to decontaminate 11 sites at the JOAAP through open

burning/“flashing.” The petition also states that it may be “necessary to decontaminate

concrete or conduct unexploded ordnance clearance” from six other sites. Pet. at 6.

The

petition is deficient because it only provides estimated emission information for one site.

For the proposed decontamination of all sites other than Site L7 (including information

pertaining to decontamination or clearance activities at Sites L1, L2, L3, L11, L34, and M6),

petitioner must provide the number of open burning/“flashing” events per site, and the

estimated emissions per site. In addition, for the proposed decontamination of all sites

(including information pertaining to decontamination or clearance activities at Sites L1, L2,

L3, L11, L34, and M6), petitioner must provide: the estimated annual emissions given the

proposed schedule of two to three sites per year; the expected frequency of the open

burn/“flashing” events if three sites are decontaminated in one year; the estimated hazardous

air pollutants that would be regulated under Section 112(b) of the federal Clean Air Act

(42 U.S.C. 7412(b));

and the maximum number of sites that would be decontaminated in one

year.

Environmental Impact of All Proposed Activities

Section 104.204(g) in pertinent part requires a petitioner to include the following:

A description of the environmental impact of the petitioner's activity

including:

1) The nature and amount of emissions, discharges, or releases of

the constituent in question if the requested variance is granted,

compared to that which would result if immediate compliance is

required;

2) The qualitative and quantitative description of the impact of

petitioner's activity on human health and the environment if the

requested variance is granted, compared to the impact of

Plexus’ March 5, 2001 petition will be referred to as “Pet. at __.”

petitioner's activity if immediate compliance is required. Cross-

media impacts, if any, must be discussed. 35 Ill. Adm. Code

104.204(g).

The petition is deficient because it fails to describe the environmental impact of the

proposed activity. The petition summarily states that the “decontamination is not expected to

have a measurable environmental impact,” and that the threat posed by the residual explosive

waste at the JOAAP “outweighs the minimal environmental harm that may be created by safely

eliminating the explosive hazards through open burning/‘flashing.’” Pet. at 17. The petition

also includes a “Summary of Site Risks.” See Pet. at exhibit Q. While it does present various

risk levels posed for exposure to contaminated soils, surface water, sediments, and

groundwater at the JOAAP, the petition is deficient in that it fails to describe any

environmental impact from air emissions.

Accordingly, petitioner must: a) describe the qualitative and quantitative impact of the

estimated air emissions from the proposed open burn/“flashing” activities on human health and

the environment beyond the risk assessment provided in Exhibit Q; and b) provide technical

support for the statement “[t]he decontamination is not expected to have a measurable

environmental impact.” Pet. at 17. Such support would include the evaluation of the air

quality impacts of the estimated annual air emissions from the proposed decontamination of all

proposed and potential sites.

In order to facilitate an expedited hearing schedule, Plexus must file an amended

petition by April 20, 2001. In any case, if an amended petition curing these deficiencies is not

filed within 45 days of the date of this order, this petition will be subject to dismissal. The

filing of an amended petition restarts the statutory time clock of Section 38(a) of the

Environmental Protection Act (Act). 415 ILCS 5/38(a) (1998).

Other Points Needing Clarification or Supplementation

The Board has identified other areas of the petition that, while sufficient to meet the

requirements of Section 104.204, need clarification or supplementation. If possible, petitioner

should include responses to the following in its amended petition. Petitioner should in any

event be prepared to address these issues at hearing. If any of the requested information is not

available, petitioner should so state in its amended petition.

Section 104.204(b) of the Board’s procedural rules requires a variance petition to

include a “complete and concise description of the nature of petitioner’s activity that is the

subject of the variance, including: 1) The location of, and area affected by, the petitioner’s

activity . . . .” 35 Ill. Adm. Code 104.204(b).

The petition states that “[a]pproximately 1200 people live within three miles of the

JOAAP.” Pet. at 5. Petitioner must explain the significance of using three miles as the

distance to quantify the number of people that may be affected by emissions from the open

burning/“flashing” activities, as well as the full number of people residing within three miles

of the JOAAP LAP outer boundaries. Petitioner must also identify the nearest residence,

business, park, and school within the affected area. Petitioner must provide additional

information regarding the current and future uses of the Midewin National Tallgrass Prairie,

the Deer Run Industrial Park, and the Abraham Lincoln National Cemetery, as well as the

types and number of people who would be allowed in the restricted and unrestricted areas on

open burning/“flashing” days.

Section 104.204(b)(4) requires the petition to identify all “environmental permits held

by petitioner for the activity which may be affected by grant of the variance.” 35 Ill. Adm.

Code 104.204(b)(4). Although the petition states that petitioner itself does not hold any

environmental permits which might be affected, petitioner is a federal contractor. Petitioner

should address whether any federal agency holds any environmental permits that might be

affected by granting this variance, such as any NPDES permits that could be impacted by

water used to suppress the open burning/“flashing” activities, or any existing air permits or

permit conditions that could be exceeded by the potential emissions.

TIMING ISSUES

Petitioner’s motion for expedited hearing is granted in that hearing will be held as

expeditiously as possible. In consultation with the parties, the hearing officer has scheduled a

tentative hearing date of May 2-3, 2001. Although the Board has not formally accepted this

matter for hearing, the Board will allow this hearing to proceed so long as an amended petition

is filed in a timely fashion. The filing of the amended petition required by today’s order will

restart the Board’s decision timeline clock. 35 Ill. Adm. Code 104.232. However, the Board

will undertake to render a decision in late June or early July if petitioner files its amended

petition no later than April 20, 2001, and the Agency files its recommendation no later than

April 26, 2001.

Finally, to avoid any uncertainty about whether a hearing will be held, the Board

advises the parties and the public that the Board in its discretion concludes that a hearing is

advisable in this petition even if petitioner withdraws its hearing request. 35 Ill. Adm. Code

104.234(c). Hearing will be held on any amended petition petitioner files consistent with this

order.

SITE VISIT

While the Board appreciates the request for site visit, given the time constraints of the

Board’s expedited review, the Board must deny the request for site visit at this time.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above order was adopted on the 5th day of April 2001 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board