BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN
THE MATTER OF:
Petition for Adjusted Standard
from 35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
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AS 08-003
(Adjusted
Standard-Water)
NOTICE OF FILING
To:
Illinois Environmental Protection Agency
Mr. James Kropid
Division
of Legal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
Pollution Control Board
APPEARANCE of Pelmi S. Livingston on behalf of Nobel Risley's
Landfill
#2; MOTION FOR EXPEDITED REVIEW; MOTION TO ALLOW FILING OF
LESS THAN NINE COPIES; AND PETITION FOR ADJUSTED STANDARD in the above-
titled manner.
As to the Exhibits for the
PETITION FOR ADJUSTED STANDARD, you have
previously received two copies each
of the Teclmical Justification for an Adjusted Standard for
Chlorides in Ground-water prepared
by Leggette, Brashears
&
Graham, Inc. (dated November 7,
2006) and Technical Justification for an Adjusted Standard for Chlorides in Ground-water Response
to IEPA Comments prepared
by Leggette, Brashears
&
Graham, Inc. (dated July 10, 2007).
Additional copies
of these exhibits are not being served upon you. Copies of the remaining
documents are hereby served upon you.
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Electronic Filing, Received, Clerk's Office, September 12, 2007
DATED: September 5,2007
Respectfully submitted,
Nobel Risley
By:
LIVINGSTON
LAW
FIRM
lsi
Penni S. Livingston
PENNI
S. LIVINGSTON #06196480
Attorney for the Petitioner
penni@livingstonlaw.biz
5701 Perrin Road
Fairview Heights,
IL
62208
Telephone 618-628-7700
Fax 618-628-7710
2
Electronic Filing, Received, Clerk's Office, September 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
Petition for Adjusted Standard
from 35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
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)
)
)
)
)
)
APPEARANCE
AS 08-003
(Adjusted Standard-Water)
I hereby file
my appearance in this proceeding, on behalf ofNobel Risley.
Respectfully submitted,
Permi
S. Livingston
lsi
Penni S. Livingston
PENNI
S. LIVINGSTON #06196480
Attomey for the Petitioner
penni@livingstonlaw.biz
5701 Perrin Road
Fairview Heights, IL 62208
Telephone 618-628-7700
Fax 618-628-7710
DATED: September
5, 2007
Electronic Filing, Received, Clerk's Office, September 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
Petition for Adjusted Standard
from
35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
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)
)
)
)
)
)
AS 08-003
(Adjusted Standard-Water)
PETITION FOR ADJUSTED STANDARD
NOW COMES
the Risley Landfill #2 ("Risley"), by and through its attomey Penni S.
Livingston, ofthe Livingston Law Film, pursuant to §28.1 and consistent with §27(a) ofthe Illinois
Enviromnental Protection Act, 415 ILCS 5/28.1, 5/27(a), and 35 Ill. Adm. Code 104.400,
et seq.,
and hereby petitions the Illinois Pollution Control Board for an Adjusted Standard to requirements
contained
in 35 Ill. Adm. Code 620.420 increasing allowable limits of chlorides under Class II
Groundwater Standards from 200 mg/L to 600 mg/L for the Risley Landfill #2.
TIns requested Adjusted Standard allows the Illinois Enviromnental Protection Agency
to certify closure
ofthe Risley #2 Landfill. In support ofthe request for an Adjusted Standard, the
Petitioner states as follows:
Introduction
1. Consistent with Section 27 ofthe Illinois Environmental Protection Act, 415 ILCS
5/27, (hereinafter the "Act"), the Illinois Pollution Control Board (hereinafter "Board")
may adopt
substantive regulations that make different provisions
as required by circumstances for different
contaminant sources and which may include regulations specific to individual persons or sites.
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Electronic Filing, Received, Clerk's Office, September 12, 2007
Furthermore, in accordance with Section 28.1 of the Act, 415 ILCS 5/28.1, after adopting a
regulation
of general applicability, the Board may grant an adjusted standard for persons who can
justify such an adjustment consistent with Section 27
ofthe Act. Petitioner will demonstrate to the
Board that it meets the standards set forth in these Sections
ofthe Act with respect to its request for
an adjusted standard for chlorides and, most importantly, Petitioner will demonstrate that the
requested reliefwill not result in environmental or health effects more adverse than those considered
by the Board in adopting the rule
of general applicability. Petitioner believes that the requested
adjusted standard will not result in any adverse enviromnental impacts
as demonstrated by the
evidence in the attached Teclmical Reports.
2. This Petition is supported by evidence gathered together in much more detail in the
report prepared
by Leggette, Brashears
&
Graham, the oldest and one of the most respected
groundwater consulting finns in the nation. The report is attached to
tIns Petition and is entitled
"Technical Justification for an Adjusted Standard for Chlorides
in Ground-water" prepared for Mr.
Nobel Risley concerning Risley Landfill
# 2. The Leggette Brashears
&
Graham repOli and
responses
to IEPA COlmnents regarding the Leggette Brashears
&
Graham report (herein after
referred to
as the "Technical Report") with supporting data and tables are dated November 7,2006,
and July 10,2007, respectively, and contain the entire body
of evidence supporting this Petition.
Every issue addressed in this Petition is addressed in more detail with suppOliing technical data
in
this attached Technical Report.
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Electronic Filing, Received, Clerk's Office, September 12, 2007
Existing Physical Conditions/ Character of the Area
3. The site involved in this Petition is a closed landfill located in rural Franklin County,
Illinois, with an address
of 9957 River Bend Road, Benton, Illinois 62812. The footprint of the
landfill is about eight acres with up to 20 feet
ofthickness of waste which is situated on a 38-acre
parcel
ofland. The IEPA pennit number is 1980-21-DE/10P. The IEPA Site Number is 055802
0005. The landfill stopped receiving non-hazardous municipal solid waste in 1988 and has
completed its post-closure care period.
4.
The surrounding area is rural and sparsely populated with light agricultural use. The
nearest town is Benton, Illinois, approximately two miles Northeast with a population of 7,000.
There are two rural residences immediately next to the 38-acre parcel, one
on the east and one on
the west along the frontage road.
5. The Franklin County area obtains its public water supply from Rend Lake. There are
no private water wells located down gradient
ofthe landfill. The natural groundwater in the area of
the landfill is sporadic in occurrence and is significantly mineralized, thereby precluding its use for
drinking water
or other purposes. This groundwater in this area is not capable of supporting
sustained yield
of water given the limited horizontal area of the aquifer, the limited saturated
thickness, and the very low hydraulic conductivity.
6. The receiving body ofany groundwater from the landfill area is the Big Muddy River.
The average flow
ofthe Big Muddy River is 650 cubic feet per second. According to the Technical
RepOlt prepared for Nobel Risley, "[t]he change in chloride concentration
in the Big Muddy River
due to the inflow
of impacted groundwater is 3.33 x 10 [to the]
-4
percent. The reason for the
extremely
low impact to chloride concentration in the Big Muddy River is because the flow is over
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Electronic Filing, Received, Clerk's Office, September 12, 2007
1.7 million times greater than the ground-water flow emanating from the landfill. There is virtually
no practical scenario in which the groundwater down gradient
of the Landfill would be used for
industrial, domestic, or agricultural use." Furthermore,
as previously stated, there are no private
water wells down gradient
of the landfill.
Issues of Technical Feasibility and Economic Reasonableness
of Compliance Alternatives for Reducing Chlorides
Apparently Coming from the Closed Risley Landfill
7. The evidence makes clear that reducing the chlorides that showed up in two
monitoring wells from this old landfill is teclmically infeasible and economically unreasonable. Full
analysis is found in the supporting evidence to this Petition. Treatment options considered to comply
with the standard include pumping and dewatering the landfill and treating the effluent for a cost
of
about $615,000 with an annual operation and maintenance cost of $81,000 per year. A second
option is a possible groundwater trenching system with treatment
of groundwater for a cost of
$583,000 with an annual operation and maintenance cost of$78,OOO. The final and most expensive
option is to relocate the landfill for a cost
of about $17.5 million. While developing treatment
options was considered with all seriousness, Mr. Risley, who recently had a kidney transplant and
is unable to continue to work for a living, is not in a financial position to pay any
of these costs.
8. See Appendix N of the teclmical report attached to this Petition for details on
treatment option costs.
Substantially Different Factors
9. The landfill at issue in this case has been closed for years and cannot obtain
certification
of closure without this adjusted standard. Mr. Risley would like to obtain certification
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Electronic Filing, Received, Clerk's Office, September 12, 2007
of closure now that the landfill has met its post-closure care obligations. The average chloride
concentration in monitoring wells around the landfill is 26 mg/L, much lower than the allowable
standard. Even so, there have been measurements
of chlorides in the leachate ofthe landfill as high
as 680 mg/L. As shown by the monitoring data, the geological and hydraulic data, and the modeling
elata, the level of impact to the receiving water shows virtually NO IMPACT to the Big Muddy
River.
Standard From Which Petitioner Seeks Adjustment
10. The regulation at issue in this Petition
is found at 35 Ill. Adm. Code 620.420(a).
Section 620.420 establishes Class II requirements for general ground water quality standards to
be
met in waters ofthe state in order to protect groundwater. Section 620.420 (a) establishes limits for
chlorides at 200 mg/L.
Proposed Adjusted Standard
11. Risley petitions the Board
to adopt the following language to establish the requested
proposed adjusted standard:
The concentrations
ofchlorides shall not exceed 600 mg/L in the groundwater at the
Risley #2 Landfill (IEPA Site Number is 055 802 0005, IEPA pennit number is
1980-21-DE/lOP) located
at 9957 River Bend Road, Benton, Illinois 62812. The
Class
II Groundwater Standards for chlorides as set forth at 35 Ill. Adm. Code
620.420 shall not apply to the groundwater at the Risley #2 Landfill.
Justification For An Adjusted Standard
12. The entire justification for this request for an Adjusted Standard is contained in the
attached Technical Report with supporting data. The greatest justification for the adjusted standard
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Electronic Filing, Received, Clerk's Office, September 12, 2007
is that there is no adverse impact on the environment or human health from this long since closed
landfill and the options for treatment to reduce one constituent found in two
of nine wells is cost
prohibitive.
The purpose ofobtaining this adjusted standard is to obtain certification ofclosure from
Illinois EPA.
No request for any remediation has even been made. Certification of Closure has,
however, not
been granted because of the readings of chlorides in two wells.
Requested Adjustment Will Not Result
In Adverse Environmental
or Health Effects
13. As previously stated and as shown in more detail in the Teclmical Report, no private
water wells are used down gradient
ofthis landfill. Furthennore, as stated previously, the receiving
water, the
Big Muddy River, will have no impact from the landfill's chlorides. As stated in the
Technical Report:
"The reason for the extremely low impact to chlOlide concentration in the Big
Muddy River is because the flow is over 1.7 million times greater than the ground-water flow
emanating from the landfill. There is
viltually no practical scenario inwhich the ground-water down
gradient
ofthe Landfill would be used for industrial, domestic, or agricultural use."
14.
For more detail on tlns issue, see the Teclmical Report narrative, particularly
Section 4 entitled "Impact to Receiving Water" and Section 5 entitled "Toxicology."
For suppOliing
evidence
ofnarrative assessment, see Appendix J entitled "USGS Surface-Water Daily Statistics for
Illinois" including Table J-1 showing Average Flow calculations; Appendix K entitled "Chloride
Concentration in the
Big Muddy River" which includes an IEPA ChlOlide Data Table, Sample
Location Map, and Sample Location Identity Table; Appendix L entitled "Calculators for Impact
to Receiving Water"; and Appendix M entitled "World Health Organization Chloride in Drinking
Water." Note that any changes to these documents, based on an IEPA review and comments to the
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Electronic Filing, Received, Clerk's Office, September 12, 2007
LBO teclmical report, are provided in LBO's
"Response to IEPA Comments"
letter report. All of
these documents, along with the sampling results at the landfill, show that the Risley landfill meets
the requirements for obtaining an adjusted standard.
Consistency with Federal Law
15. The Board, acting for the State of Illinois, has the primary authority and
responsibility
to establish water quality standards for the groundwater at the Risley Landfill in
accordance with the Federal Clean Water Act.
33 USC 1251,40 CFR 131.4(a). The Clean Water
Act sets the policy
of Congress "to recognize, preserve, and protect the primary responsibilities and
lights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use .
. .
ofland and water resources ..." 33 USC 1251. With respect to revised standards, the Clean
Water Act anticipates that "The Govemor
of a State or the State water pollution control agency of
such State shall from time to time ... hold public hearings for the purpose of reviewing applicable
water quality standards and,
as appropriate, modifying and adopting standards." 33 USC 1313(c)(1).
While this last cited provision appears to be applicable to navigable waters, it is clear from the Clean
Water Act that each State has the authority and responsibility to designate
appropliate uses for the
waters
of the State and the clitelia to protect those uses.
16. The National Secondary Drinking Water Standards are non-enforceable guidelines
regulating contaminants that may cause cosmetic effects or aesthetic effects in drinking water.
Chlorides are
of this type of constituent. There are no specified enforceable federal standards for
chlorides. However, for a discussion
ofthese Federal Guidelines, see Section 1.5 of the Technical
Report.
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Electronic Filing, Received, Clerk's Office, September 12, 2007
17. The natural groundwater at the closed Risley Landfill #2 is not suitable for use as
potable water as it is sporadic
in occurrence and is significantly mineralized, thereby precluding its
use for drinking water or other purposes. Furthermore, there are no private water wells located
down
gradient ofthe landfill. This b,roundwater in this area is not capable ofsupporting sustained yield of
water given the limited hOlizontal area of the aquifer, the limited saturated thickness, and the velY
low hydraulic conductivity. As stated
in the Technical Report: "There is virtually no practical
scenario in which the ground-water down gradient of the Landfill would be used for industrial,
domestic,
or agricultural use." Discussion ofthe receiving body, the Big Muddy River, is found in
Paragraph 6 above where it is explained that the reason for the extremely low impact to chloride
concentration
in the Big Muddy River is because the flow is over 1.7 million times greater than the
ground-water flow emanating from the landfill.
18. FUlihennore, the provisions
of Section 104.420 ofthe Board'sregulations, 35 lAC
104.420, giving any person a right to request a hearing in this proceeding and the provisions of 35
lAC 104.408 regarding publication of notice advising any person of a right to request a public
hearing, fully satisfy
the mandate of the Clean Water Act with respect to public participation as
found
in 33 USC 1251 (e). Proof of notice ofthis filing and the declaration ofthe rights thereunder
for any
person will be provided to the Board hereafter as publication in the newspaper of general
circulation
in the geographic area ofthe Risley Landfill.
19.
For these reasons and those stated in the suppOliing documentation, the requested
adjusted standard is protective
of public health and welfare. The adjusted standard requested by
Petitioner complies with all applicable Federal requirements.
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Electronic Filing, Received, Clerk's Office, September 12, 2007
Waiver of Hearing
20. While
proof of notice of this filing and the rights thereunder for any person to
request a hearing will
be provided as publication in the newspaper of general circulation in the
geographic area
of the Risley Landfill, Petitioner waives hearing in this matter as permitted by
Section 104.406 provided the Illinois EPA does not have a contrary recommendation to the
requested adjusted standard.
The purpose
of this requested adjusted standard is to obtain
certification
of closure of the Risley #2 Landfill. Petitioner anticipates Illinois EPA having a
favorable recommendation
as to the request for the adjusted standard.
WHEREFORE,
for all
of the reasons stated above as more fully addressed in the
Teclmical Report entitled: "Technical Justification for an Adjusted Standard for Chlorides
in
Ground-water" prepared by Leggette Brashears
&
Graham, the Petitioner respectfully requests that
the Board
GRANT
the Petitioner'srequest for an Adjusted Standard for chlorides in groundwater
from 240 mg/L to 600 mg/L after finding that:
(1)
The factors relating to the Petitioner are substantially and significantly
different from the factors relied upon
by the Board in adopting the general applicability regulation;
(2)
The existence
of these factors justifies an adjusted standard;
(3)
The requested standard will not result
in enviromnental or health effects
more adverse than those considered
by the Board in adopting the rule of general applicability;
(4)
The adjusted standard is consistent with federal law; and
(5)
The adjusted standard is necessmy and appropriate
by American standards
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Electronic Filing, Received, Clerk's Office, September 12, 2007
ofjustice and fairness in order to avoid extreme economic unreasonableness of implementation of
any technical remedy to eliminate chlorides that have virtually no impact on the receiving water
body from this 8-acre landfill which stopped receiving municipal solid waste in 1988.
Respectfully submitted,
Nobel Risley
By: /s/ Penni
S. Livingston
PENNI
S. LIVINGSTON #06196480
Attorney for the Petitioner
pemli@livingstonlaw.biz
5701 Perrin Road
Fairview Heights, IL 62208
Telephone 618-628-7700
Fax 618-628-7710
DATED: September
5,2007
10
Electronic Filing, Received, Clerk's Office, September 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
Petition for Adjusted Standard
from 35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
)
)
)
)
)
)
)
AS 08-003
(Adjusted Standard-Water)
MOTION FOR EXPEDITED REVIEW
NOW COMES the Risley Landfill #2 ("Risley"), by and through its attomey, Pelmi S.
Livingston, of the Livingston Law Finn, and pursuant to 35 Ill. Adm. Code 101.512, respectfully
requests that the Illinois Pollution Control Board ("Board") expedite its review
of tlns matter and
states in support
as follows:
1. As is described more fully in the Petition and the supporting exhibits, Risley seeks
this relief in order
to allow the Illinois Environmental Protection Agency ("IEPA") to certify the
completion
ofpost-closure care at the Risley Landfill. The landfill stopped receiving non-hazardous
mmncipal solid waste
in 1988 and has completed its post-closure care period. The sunounding area
is rural and sparsely populated with light agricultural use.
2. As is briefly described in Paragraphs 5 through 6 and 12 through 14 of the Petition
for Adjusted Standard, and more fully described in the
Tecmncal Report attached to the Petition,
there is no adverse impact on the environment or human health from this long since closed landfill
and the impact to the receiving body
of any groundwater from the landfill is extremely low. Since
the post-closure monitoring period began, Risley hired professionals who perfomled numerous
groundwater shldies and analyses and submitted these
to IEPA for review.
3. Upon review of the technical report submitted on November 7, 2006, the Agency
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Electronic Filing, Received, Clerk's Office, September 12, 2007
2
3. Upon review of the technical report submitted on November 7 , 2006 , the Agency
responded with numerous useful comments to which Risley addressed in the response dated July 10,
2007. While the IEPA has worked closely with Risley, it has been determined that it cannot certify
post-closure completion without relief in the form of an adjusted standard. It is Risley’s expectation
that, based upon this supplemental information, the IEPA will recommend that this relief be granted.
WHEREFORE, for the reasons stated in this Motion, Risley respectfully requests that
the Board expedite its review of this Petition in order to finally complete the process of obtaining
certification of completion of its post-closure care.
Respectfully submitted,
NobelRseily
By:
LIVINGSTON LAW FIRM
/s/ Penni S. Livingston
PENNI S. LIVINGSTON #06196480
Attorney for the Petitioner
penni@livingstonlaw.biz
5701 Perrin Road
Fairview Heights, IL 62208
Telephone 618-628-7700
Fax 618-628-7710
DATED: September 5, 2007
Electronic Filing, Received, Clerk's Office, September 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
Petition for Adjusted Standard
from 35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
)
)
)
)
)
)
)
AS 08-003
(Adjusted Standard-Water)
MOTION TO ALLOW FILING OF LESS THAN NINE COPIES
NOW COMES
the Nobel Risley Landfill #2 ("Risley"), by and through its attorney
Penni
S. Livingston, ofthe Livingston Law Finn, and hereby respectfully requests that the Illinois
Pollution Control Board ("Board") allow it
to file less than nine copies of its Petition for Adjusted
Standard as required
by 35111. Adm. Code 101.302(h).
The Petition includes a detailed Technical Justification for an Adjusted Standard for
Chlorides in Ground-water attached
as an exhibit. This Report consists of two volumes dated
November 7, 2006 and July 10, 2007 and includes over 1,250 pages.
TIns level of detail was
required because further investigation and clarification was requested by the Illinois Environmental
Protection Agency. These volumes contain oversize documents and color illustrations.
Risley has attached an original set and three copies and submits that submitting six
additional copies would be an unnecessary expense and a burden on the Board'sresources.
WHEREFORE, for the reasons stated in this Motion, Risley respectfully requests that
it be allowed
to submit an original set and three copies ofits Petition and Exhibits instead ofthe nine
copies otherwise required by the Board rules.
Electronic Filing, Received, Clerk's Office, September 12, 2007
DATED: September 5, 2007
Respectfully submitted,
Nobel Risley
By:
LIVINGSTON LAW FIRM
/s/ Penni
S. Livingston
PENNI
S. LIVINGSTON #06196480
Attomey for the Petitioner
penni@livingstonlaw.biz
5701 Perrin Road
Fairview Heights,
IL
62208
Telephone 618-628-7700
Fax 618-628-7710
Electronic Filing, Received, Clerk's Office, September 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
Petition for Adjusted Standard
from 35 Ill. ADM. CODE 620.420
For Nobel Risley's Landfill #2
)
)
)
)
)
)
)
AS 08-003
(Adjusted Standard-Water)
PROOF OF SERVICE
I, Penni S. Livingston, an attomey, hereby certify that I caused the attached pleadings
to be served upon all parties listed on the attached Notice of Filing via first class U.S. Mail from
5701 Perrin Road, Fairview Heights, Illinois 62208, on September
5, 200 7 .
Respectfully submitted,
Penni
S. Livingston
lsi
Pelmi S. Livingston
PENNI
S. LIVINGSTON #06196480
Attomey for the Petitioner
penni@livingstonlaw.biz
5701 Pen'inRoad
Fairview Heights, IL 62208
Telephone 618-628-7700
Fax 618-628-7710
DATED: September
5, 2007
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Electronic Filing, Received, Clerk's Office, September 12, 2007