this matter may be sUbject to dismissal>

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

Petition for Adjusted Standard

fl'om 35 m. ADM. CODE 620.420

For Nobel Risley's Landfill #2

)

AS 08-003

(Adjusted Standard-Water)

NOTICE OF FILING

To:

Mr. James Kropid

Division

of Legal Counsel, #21

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Post Office Box 19276

Springfield, Illinois 62794

Carol Webb

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794

PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the

Pollution Control Board the following for the above-titled matter:

AMENDED PETITION FOR ADJUSTED STANDARDS TO ADD SULFATES AT

THE SUGGESTION OF THE ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY AND TO ADDRESS POLLUTION CONTROL BOARD COMMENTS ON

PREVIOUS PETITION;

MOTION TO ALLOW FILING OF LESS THAN NINE COPIES;

MOTION FOR RECONSIDERATION OF THE BOARD'SRULING ON THE ISSUE

OF WAIVER OF HEARING IN ITS NOVEMBER

1, 2007, ORDER; and

PROOF OF SERVICE FILING

Copies of these documents are herehy served upon you.

Respectfully submitted,

N~~l

Risley

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PENNI S. LIVINGSTON #061964 0

Attorney for the Petitioner

penni@livingstonlaw.biz

5701 Perrin Road

Fairview Heights,

IL 62208

Telephone 618-628-7700

Fax 618-628-7710

DATED: November 30, 2007

BEFORE THE ILLINOIS I)OLLUTION CONTROL BOARD

IN THE MATTER OF:

Petition for Adjusted Standard

from 35 m. ADM. CODE 620.420

For Nobel Risley's Landfill #2

)

AS 08-003

(Adjusted

Standard-Water)

AMENDED PETITION FOR AD,ruSTED STANDARDS TO ADD SULFATES AT THE

SUGGESTION OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY AND

TO ADDRESS POLLUTION CONTROL BOARD COMMENTS ON PREVIOUS

PETITION

NOW COMES the Petitioner, Risley Landfill #2 ("Petitioner," "Risley" or "Landfill

#2"), by and through its attorney Pemli

S. Livingston, ofthe Livingston Law Fifl11, pursuantto §28.1

and consistent with §27(a)

ofthe Illinois Enviromnental Protection Act, 415 ILCS 5/28.1, 5/27(a),

and

Ill.

Adm. Code 104.400,

et seq.,

and hereby files this Amended Petition requesting that this

honorable Illinois Pollution Control Board (hereinafter the "Board") allow for Adjusted Standards

to requirements contained

in35 Ill. Adm. Code 620.420 increasing the allowable limits ofchlorides

under Class

II Groundwater Stmldards from 200 mg/L to 600 mg/L and increasing the allowable

limits

of sulfates under Class II Groundwater Standards from 400 mg/L to 4,500 mglL, both for the

Risley Landfill #2.

These requested Adjusted Standards allow the Illinois Environmental Protection Agency

(hereinafter

"IEPA") to certifY closure of the Risley Landfill #2. In support of the request for

Adjusted Standards, the Petitioner states

as follows:

Introduction

1. Consistent with Section 27 of the Illinois Environmental Protection Act, 415 ILCS

5/27, (hereinafter the

"Act"), the 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. Furthermore, in accordance with Section 28.1

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 of

the Act. Petitioner will demonstrate to the Board that it meets the standards set forth in these

Sections

of the Act with respect to its request for Adjusted Standards for chlorides and sulfates.

Most importantly, Petitioner will demonstrate that the requested relief will not result in

enviromnental

or health effects more adverse than those considered by the Board in adopting the rule

of general applicability. Petitioner believes that the requested Adjusted Standards will not result in

any adverse envirorunental impacts as demonstrated by the evidence in

the attached Technical

Reports and those previously submitted.

2. This Amended Petition is supported by evidence gathered together in much more

detail

in the reports prepared by Leggette, Brashears

Graham ("LBG"), the oldest and one ofthe

most respected groundwater consulting firms in the nation. The reports attached to the original

Petition are entitled "Technical Justification for an Adjusted Staudard for Chlorides in Ground-

water" and are herein adopted in full by reference in this Amended Petition. The report attached to

this Amended Petition is entitled "Tecllllical Justification for an Adjusted Standard for Sulfates in

Ground Water". These reports were prepared for Mr. Nobel Risley concerning Risley Landfill #2.

The LBG report on Chlorides and responses to IEPA Comments regarding the LBG report with

supporting data and tables are dated November

7, 2006 (to be labeled as Exhibit I), and July 10,

2007 (to be labeled as Exhibit 3), respectively. The reports on chlorides were previously filed

unlabeled with the Board on or about September

5, 2007, with the original Petition for Adjusted

Standard. The LBG report on Sulfates is dated November

6, 2007, and filed herein as Exhibit 2.

Hereinafter, these rep011s are collectively referred to as the "Teclmical Reports." Every issue

addressed in this Amended Petition is addressed in more detail with supporting technical data in the

attached and referenced Technical Reports. Exhibits 4 through 7 include documentation requested

by the Board and, together with the Technical Reports, contain the entire body

of written evidence

presented in support

of this Amended Petition.

Landfill Description! Existing Physical Conditions! Character

the Area

3. The site involved in tIns Amended Petition is a closed landfill located in rural

Franklin County, Illinois, with an address

of9957 River Bend Road, Benton, Illinois 62812. The

site is composed

of a main landfill, with a footprint of about eight acres with up to 20 feet of

thickness of waste which is centrally situated on a 38-acre parcel ofland, and a smaller trench-filled

area

to the north, comprising of approximately O.4-acres. The IEPA pennit number is 1980-21-

DE!OP. The IEPA Site Number is

0558020005.

4. Landfill #2 was constructed by removing naturally occurring unconsolidated earth

materials

of glacial derivation which are present above a thick shale formation, leaving the shale

formation

in place, then filling the excavation with non-hazardous municipal solid waste, and,

finally, placing cover material consisting

of unconsolidated earth material.

5. Per the permit requirements for site development set forth in the July 29, 1980, letter

from !EPA to Petitioner (Exhibit 6), construction

ofthe landtlll rcquired that all sand, silt, and other

soil layers which are located between ground level and the shale layer and have a permeability

greater than 1 x 10 [to the] -7 cm/sec. be

removed from the Sealing Trench and replaced with clay

having a

maximum permeability of 1 x 10 [to the] -7 cm/sec. and be compacted in two-foot layers

to a density of95 percent (Proctor method). In areas where clay is placed directly on the shale layer,

the clay had to be keyed

at least two feet into the shale layer. A minimum of 10 feet of clay with a

maximum permeability of 1 x 10 [to the] -7 cm/sec. over the entire width and length ofthe Sealing

Trench had to be laid. The Sealing Trench had to be certitled as to construction, permeability and

density in 300-ft. long sections. The old well near B-6 had to be backtllled with clay. Permanent

markers extending at least three feet above ground level had to be placed at all breaks in the property

line and at 300-ft. intervals

over the Sealing Trench. A vegetative screen had to be maintained

between the

landtlll site and the neighboring Edward Timberend property.

6. According to the permit, no liner was required for construction. Specific areas were

designated where the landtlll would operate by trenches. Area 1 began adjacent to the west property

line. The trenches in Area 1 ran north and south with the first trench being excavated along the west

propeliy line with the operation moving in an easterly direction.

7. According to Attaclmlent VII of the permit application (Exhibit 6), surface water

pollution had to be controlled by providing temporary ditching around areas ofoperation to prevent

surface runoff from flowing to operating portions of the landtlll and by maintaining daily cover of

the refuse.

8. Final cover construction began with the preparation ofthe subgrade by the stripping

and removal

of all vegetation, top soil, and deleterious material from the area. Any shallow

depressions were stripped, drained, and filled with structural fill to the level

of the surrounding

ground elevation. This fill was compacted to achieve

90% ofthe maximum dry density (standard

Proctor method). Once the subgrade was prepared, a compacted clay layer

was constructed over

the entire landfill area to achieve a minimum final cover thickness of two feet and to at least 90%

compaction. Further description ofthe cap is provided in the August 1999 EMCON Report (Exhibit

4).

9. Landfill #2 began operations in February 1981, ceased receiving non-hazardous

municipal solid waste in 1988, and closed

both landfill areas between May 11,1999 and July 19,

1999, lasting a period

of approximately 18 years. According to Attachment VIII, Item C. 35, of

Petitioner's Landfill Application, the Landfill was required to have two full-time employees (a

supervisor and an equipment operator) and to hire additional personnel as needed on a part-time

basis (Please see Exhibit 6).

At the time operations began, the La.'1dfill required four employees to

operate and maintain the landfill.

These employees consisted of a manager, pit person, bulldozer

operator, and a mechanic.

When only maintenance was required, particularly since closure, only one

employee was present

at the Landfill. At this time, there are no employees other than the owner.

The landfill is closed.

10.

The July 13,2000, Supplemental Permit No. 1999-285-SP (Exhibit 7), outlines the

specific closure requirements for Landfill #2, including those pertaining to groundwater monitoring.

As to specific references

to closure requirements cited by the Technical Documents, Sections 1.4,

of both the Technical Justification for Chlorides, dated November 7, 2006, and the Technical

Justification for Sulfates, dated November 6, 2007, refer to correspondence between lEPA and LBG

(on behalf

of Petitioner). Further, Exhibits 4 thmugh 5 also address closure requirements set forth

by permit.

II. As to any leachate and gas emissions fmm Landfill #2, none were observed during

a 4-year quarterly inspection period performed

by EMCON/Shaw Envirornnental, Inc. (Exhibit 5,

Shaw/EMCON Januarj 2005 Report, Appendices C and D). While there is no pollution control

equipment at the landfill, there is an engineered cap that is in place and certified (Exhibit

4, EMCON

August 1999 Report).

12. 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.

13. 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 OCCUlTence 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 satnrated

thickness, and the very low hydraulic conductivity. The groundwater at the landfill is unsuitable for

and domestic use and practically inaccessible.

14. The receiving body of any groundwater from the landfill area is the Big Muddy

River. The average flow

of the Big Muddy River is 605 cubic feet per second. According to the

Technical Reports prepared for Nobel Risley, "[t]he change in chloride concentration in the Big

Muddy Rivcrdue to the inf1owofimpacted 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

1.7 million times greater than the groundwater flow emanating from the Landfill."

15. As to sulfates, "[t]he change in the sulfate concentration in the Big Muddy River due

to the inflow

ofimpacted groundwater is 4.62 x

0 [to the] -6 percent. The reason for extremely low

impact to chloride concentration in the Big Muddy River is because the flow is over 5 million times

greater than the groundwater flow emanating from the Landfill."

16. There is virtually no practical scenario in which the groundwater down gradient of

Landfill #2 would be used for industrial, domestic, or agricultural use." Furthermore, as previously

stated, there are no private water wells down gradient

of Landfill #2.

Issues of Technical Feasibility and Economic Reasonableness

of Compliance Alternatives for Reducing Chlorides and Sulfates

Apparently Coming from tbe Closed Risley Landfill #2

17. The evidence makes clear that reducing the chlorides that showed up in two

monitoring wells and snlfates that showed up in six monitoring wells from this old landfill is

technically infeasible and economically unreasonable. Full analysis is found in the supporting

evidence

to this Petition (Exhibits

through 3). 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 $78,000. 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.

18. Please see Appendix N of the Chlorides Technical Report (Exhibit 1) attached to

this Amended Petition for details on treatment option costs.

Substantiallv Different Factors

19. The landfill at issue in this case has been closed for years and cannot obtain

certification

of closure without these Adjusted Standards. Mr. Risley would like to obtain

celiification

ofclosure now that the landfill has met its post-closure care obligations. Although there

have been measurements

ofchlorides in the leachate ofthe landfill as high as 680

mg/L,

the average

chloride concentration

in monitoring wells around the landfill is 26

mg/L,

much lower than the

allowable standard. This average, as shown by the monitoring data, the geological and hydraulic

data, and the modeling, indicates that there

is virtually NO IMPACT on the Big Muddy River as the

receiving water. As to sulfates, there is even less

of an impact to the Big Muddy River.

Furthermore, any health effects due to the concentration

of sulfates emanating from the site are

essentially non-existent.

Petitioner Seeks Adjustment from Class II Groundwater Standards

Under 35 m. Adm. Code 620.420(a)

20. 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 groundwater quality standards to be

met in waters ofthe State in order to protect groundwater. Section 620.420 (a)(2) establishes limits

for chlorides at 200 mg/L and sulfates at 400 mg/L.

21. The

"Technical Justification for an Adjusted Standard for Chlorides in Ground-

Water"

prepared by LBG in November 7, 2006, lists the Groundwater Classification as "Class I:

Potable Resource Groundwater". However, as part ofwork performed to address IEPA conilllents

to the LBG November 7

"TechnicalJustification"

report, hydraulic conductivity values derived from

slug tests

of monitoring wells at the site indicate groundwater does not meet criteria for a Class I

groundwater (i.e., hydraulic conductivity values are less than lE-04 em/sec; see Page 5

ofthe LBG

report

"Technical Justificationfor an AdjustedStandardfor Chlorides in Ground-Water, Response

to IEPA Comments,"

dated July 10, 2007). Therefore, the groundwater classification for the

Adjusted Standards for both chlorides and sulfates should be

"Class II: General Resource

Groundwater", in accordance with

35 Ill. Adm. Code 620.250.

Proposed Adjusted Standards

22. Risley petitions the Board to adopt the following language to establish the requested

proposed Adjusted Standard:

The concentrations

of dissolved chlorides shall not exceed 600 mg/L and the

concentrations

of dissolved sulfates shall not exceed 4,500 mg/L in the

groundwater at the Risley Landfill #2 (IEPA Site Number is 055 802 0005,

IEPA permit number is 1980-21-DE/10P) located at 9957 River Bend Road,

Benton, lllinois 62812. The horizontal boundaries within which the Adjusted

Standards apply shall be the property boundaries. The vertical boundaries are

defined as all the groundwater that occurs below the surface and above the

first

occurrence of shale, the latter of which is shown on Figure 8 of the "Teclmical

Justification for an Adjusted Standard for Chlorides in Ground-Water" Report

dated November

7, 2006. The Class II Groundwater Standards for dissolved

chlorides and dissolved sulfates as set forth at

35 Ill. Adm. Code 620.420 shall

not apply

to the groundwater at the Risley Landfill #2.

The legal description for the property is as follows:

Part

ofthe South One-Half(S

Yz)

ofthe Southwest One-Fourth (SW 1/4) ofthe

Southeast One-Fourth (SE l/4) of Section 22, Township 6 South, Range 2 East

in Franklin County, lllinois, approximately eight (8) acres.

The North One-Half (N

Yz)

of the Northwest One-Fourth (NW 1/4) of the

Northeast One-Fourth (NE l/4) and the Southeast One-Fourth (SE 1/4)

of the

Northwest One-Fourth (NW 1/4)

of the Northeast One-Fourth (NE 1/4) of

Section 27, Township 6 South, Range 2 East in Franklin County, Illinois,

approximately thirty (30) acres.

Justification For Adjusted Standards

23. For dissolved chlorides, Petitioner proposes an Adjusted Standard of 600 mg/L

instead

of a lower level that reflects the statistically valid range of chloride levels observed at the

down gradient monitoring well G103. While 516 mg/L in well G103 was interpreted to be an

outlier, it was done so in accordance with statistical reporting protocol. Given the potential for

spatial and temporal variation, and bearing in mind there are no exposure routes for groundwater or

health concerns associated with readings at 600 mg/L, a concentration

of 600 mg/L is appropriate.

24. As to dissolved sulfates, Petitioner proposes an Adjusted Standard

of 4,500 mg/L

instead

of a lower level that reflects the statistically valid range of snlfate levels observed in the

down gradient monitoring wells. The maximum sulfate concentration of 3,290 mg/L in well G104

was observed in January 2000. While sulfate concentrations in well

GI04 have never exceeded

3,000 mg/L since that time, the range

of sulfate concentrations in well Gl04 has been highly

variable, with a minimum concentration

of] ,430 mg/L and an average of2,

161

mg/L over the 9-year

period. Given the potential for spatial and temporal variation

of sulfate data, and bearing in mind

there are no exposure routes for groundwater and no health concems exist at 4,500 mg/L, a

concentration

of 4,500 mg/L is appropriate.

25. The sole purpose

of requesting Adjusted Standards is to obtain Certification of

Closure from

rEPA.

The entirejustification for this request is contained in the referenced Technical

Reports and supporting data. The most compelling reasons for granting these Adjusted Standards

are that there is no adverse impact on the enviromnent or human health from this long since closed

landfill and the options for treatment to reduce two constituents

of negligible impact to the quality

of groundwater in the area are cost-prohibitive.

is also important to consider that a request for

remediation

of the Landfill has never been made by IEPA.

Requested Adiustments Will Not Result

In Adverse F,nvironmental or Health Effects

26. As previously stated and shown in more detail in the Technical Reports, no private

water wells are used down gradient

of this landfill. Furthermore, the Big Muddy River, as the

receiving water, will not experience any negative impact due to migration

ofthe landfill'schlorides

and sulfates. As stated in the Teclmical Reports, the reasons for the extremely low impact to

chloride and sulfate concentrations in the Big Muddy River are because the flow

ofthe river is over

1.7 million times greater than the groundwater flow ofchlorides emanating from the landfill and over

5 million times greater than the groundwater Dow of sulfates emanating from the landfill. There is

no practical scenario in which the groundwater down gradient of the landfill would be used for

industrial, domestic, or agricultural use.

27. For greater detail on these issues, please review the Tec!mical Reports' naITatives

for chlorides (Exhibits I and 3) and sulfates (Exhibit 2), particularly Section 4 entitled "Impact to

Receiving Water" and Section 5 entitled "Toxicology". For supporting evidence

of the narrative

assessment on chlorides, see Exhibit I Appendix J entitled

"USGS Surface-Water Daily Statistics

for Illinois" including Table

J-l showing Average Flow calculations; Appendix K entitled "Chloride

Concentration in the

Big Muddy River" which includes an IEPA Chloride Data Table, Sample

Location Map, and Sample Location Identity Table; Appendix

10 entitled "Calculators for Impact

to Receiving Water"; and Appendix M entitled "World Health Organization Chloride in Drinking

Water" (all within Exhibit I). Note that any changes to these documents on chlorides, based on an

IEPA review and comments to the LBG teclmical report, are provided in

LBG's

"Response to IEPA

Comments"

letter report (Exhibit 3).

28. For supp0/1ing evidence

of the narrative assessment on sulfates, see Appendix A

entitled "Sulfate Concentration in the Big Muddy River" which includes an IEPA Sulfate Data

Table, Sample Location Map, and Sample Location Identity Table; Appendix B entitled "Sulfate

Concentrations in Monitoring Wells"; and Appendix C entitled "World Health Organization, Sulfate

in Drinking Water" (Exhibit 2). All

of these documents, along with the sampling results at the

landfill, show that Risley LandfiU #2 meets the requirements for obtaining the Adjusted Standards

requested.

The Proposed Adiusted Standards and Existing Conditions

not Warrant an Institutional or Environmental Land Use Control

29. As clarified above in Paragraph 20 et. seq., the applicable groundwater classification

is Class II General Resource Groundwater and not Class I Potable Resource Groundwater. Due to

the fact that the groundwater is no longer classified as "potable" and considering that it would be

highly unlikely,

if not improbable, that future landowners would install a potable water well on the

site, an institutional or environmental land use control prohibiting the use

ofgroundwater for potable

purposes

is not warranted. Further, potable water from the County'swater system is available along

the common shared roadway at the south end

of the property.

30. Even more so, the existing conditions make it impracticable for any water wells to

be installed either in unconsolidated or consolidated material. Per the requirements

of 77 Ill. Adm.

Code 920.60, the minimum casing requirement for a drilled water well in unconsolidated material

is 20 feet. Considering that the thickness

of the water-bearing unconsolidated earth material at the

site is between five and 30 feet, the maximum open interval for a shallow water well would be only

10 feet.

is highly impractical that a registered water well driller (a requirement for

drilling/installation

ofpotable water wells) would recommend a water well in such a shallow setting.

The minimum casing requirement for a drilled water well in consolidated materials is a depth

of40

feet below ground level (77 Ill. Adm. Code 920.70). Given the

fact that the start of consolidated

material beneath the property and surrounding area (i.e. bedrock shale)

is 25 feet, the construction

and installation

of a water well under these conditions is highly impractical.

31. Furthermore, the City of Benton enacted an ordinance prohibiting the installation

ofdrilling ofwells to use groundwater as a potable water supply (Ordinance 05-16 enacted June 27,

2005). Given the geological and hydrogeological characteristics

of the area, it is logical that such

construction would be prohibited. Although this ordinance only applies within the City

ofBenson's

corporate limits, the Risley Landfiil #2 in close proximity and the same rationale would apply.

Granting Adiusted Standards is Consistent with Federal Law

32. The Board, acting for the State of Illinois, has the primary authority and

responsibility to establish water quality standards for the groundwater at Risley Landfill #2 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

rights

of States to prevent, reduce, and eliminate pollution [and] to plan the development and use .

. .oflanel and water

resources ..." 33 USC 1251. With respect to revised standards, the Clean

Water Act anticipates that

"The Governor 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)( I).

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 appropriate uses for the

waters

of the State and the criteria to protect those uses.

33. The National Secondary Drinking Water Standards are non-enforceable guidelines

regulating contaminants that may cause cosmetic effects or aesthetic effects in drinking water.

Chlorides and sulfates are

of this type of constituent. There are no specified enforceable federal

standards for chlorides or sulfates. However, for a discussion of these Federal Guidelines, please

see

Section].5 of the Technical Report on Chlorides (Exhibit]).

34. The natural groundwater at the closed Risley Landfill #2 is not suitable for use as

potable water as it is sporadie in

occun-ence and is significantly mineralized, thereby precluding its

use for drinking water

or other purposes. Furthermore, there are no private water wells located down

gradient

of the landfill. This groundwater in this area is not capable ofsupporting sustained yield of

water given the limited horizontal area of the aquifer, the limited saturated thickness, and the very

low hydraulic conduetivity. As stated in the Technieal Reports:

"There is viliually no practical

scenario in which the groundwater down gradient

of the Landfill would he used for industrial,

domestic,

or agricultural use." Discussion of the receiving body, the Big Muddy River, is found in

Paragraphs]4

through] 6 above where it is explained that the reasons for the extremely low impacts

to the chloride and sulfate concentrations in the Big Muddy River are because the flow is over

1.7

million and 5 million times greater, respectively, than the groundwater flow emanating from the

landfill.

35. Furthermore, the provisions

of Section 104.420 ofthe Board's regulations, 35 IAC

104.420, giving any person a right to request a hearing in this proceeding and the provisions

of 35

lAC ] 04.408 regarding Publication

of Notice advising any person of a right to request a public

hearing,

TIllly satisfy the mandate of the Clean Water Act with respect to public participation as

found in

33 USC 1251 (e). ProofofNotice 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.

36. For these reasons and those stated in the supporting documentation, the requested

Adjusted Standards are protective

ofpublic health and welfare. The Adjusted Standards requested

by Petitioner comply with all applicable Federal requirements.

Petitioner Does

Not

Waive Hearing

37. Proof of Notice of this Filing and the rights thereunder for any person to request a

hearing

wiH be provided as publication in the newspaper ofgeneral circulation in the geographic area

of Risley Landfill #2. In the original Petition filed with the Board on September 5, 2007,

Petitioner agreed to waive hearing in this matter as permitted by Section 104.406

provided the

Illinois EPA does nothave a contrary recommendation to the requestedadjustedstandard

(emphasis

added).

should be restated that Petitioner anticipates !EPA having a favorable reconnnendation

as to the request for

the Adjusted Standards hut does

not

waive its right to a hearing. Further

clarification

of this issue on Waiver of Hearing shall be addressed in a Motion filed concurrently

with this Amended Petition.

WHEREFORE, for all of the reasons stated above as more fully addressed in the

Technical Reports prepared by Leggette Brashears

Graham and documents requested by the

Board, the Petitioner respectfully requests that this honorable Board

GRANT the Petitioner'srequest

for an Adjusted Standard for chlorides in groundwater from 240

mg/L

to 600 mglL and an Adjusted

Standard for sulfates in groundwater from 400

mg/L

to 4,500

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 ofthese factors justifies Adjusted Standards for chlorides and

sulfates;

(3)

The requested Adjusted Standards will not result in environmental or health

effects more adverse than those considered by the Board in adopting the rule ofgeneral applicability;

(4)

The Adjusted Standards are consistent with federal law; and

(5)

The Adjusted Standards are necessary and appropriate by American standards

ofjustice and fairness in order to avoid extreme economic unreasonableness of implementation of

any technical remedy to eliminate chlorides and sulfates 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

• f

,_.;

JV'

~ ~-~l·

BY:-

~O~'YL/"\./I.j,

!?"../L-I·(.....,~.'6j/,-et~'t~.

PENNI S. LIVINGSTON

#061964SfS

Attomey for the Petitioner

pemli@livingstonlaw.biz

570

Pen-in Road

Fairview Heights, II, 62208

Telephone 618-628-7700

Fax 618-628-7710

DATED: November 30,2007

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

THE MATTER OF:

Petition

for Adjusted Standard

from 3S

III.

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 Petitioner, Nobel Risley Landfill #2 ("Risley"), by and through its

attorney Penni

S. Livingston, ofthe Livingston Law Firm, and hereby respectfully requests that the

Illinois Pollution Control Board

("Board") allow it to file less than nine copies of its Amended

Petition for Adjusted Standard

as required by 35 1Il. Adm. Code 101.302(h).

Petitioner has electronically filed its Amended Petition concurrently with this Motion

and will serve IEPA and lEPA Legal Division

by electronic mail and either Federal Express or UPS

delivery. The Amended Petition includes detailed technical documentation, permit information, and

other documentation attached

as exhibits ("Exhibits"). These Exhibits include approximately 1,000

pages

of material. This level of detail was required because further investigation and clarification

was requested

by the lllinois EnvirOlIDlental Protection Agency ("IEPA") illld this honorable Board.

These Exhibits also contain oversize documents and color illustrations.

Petitioner has attached an original

set and three copies of the Exhibits and submits that

submitting six additional copies would be an unnecessary expense and a burden on the Board's

resources. These Exhibits

will be filed with the Board and served upon lEPA and IEPA Legal

Division by either Federal Express or UPS delivery.

WHEREFORE. for the reasons stated in this Motion, Petitionerrespectfully requests that

be allowed to submit an original set and thTee copies of the Exhibits to its Amended Petition

instead

of the nine copies otherwise required by the Board rules.

Respect["ully submitted,

Nobel Risley

DATED: November

30,2007

By:

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PENNI S. LIVINGSTON #0619648."

Attomey for the Petitioner

pemli@1ivingstonlaw.biz

5701 Perrin Road

Fairview Heights,

62208

Telephone 618-628-7700

Fax 618-628-7710

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

Petition for Adjusted Standard

from 35 IJl. ADM. CODE 620.420

For Nobel Risley's Landfill #2

)

AS 08-003

(Adjusted Standard-Water)

MOTION FOR RECONSIDERAnON OF THE BOARD'S RULING ON THE ISSUE OF

WAIVER OF HEARING IN ITS NOVEMBER 1,2007, ODRER

NOW COMES the Petitioner, Nobel Risley Landfill #2 ("Risley"), by and through its

attorney Penni

S. Livingston, ofthe Livingston Law Firm, and hereby respectfully requests that the

Illinois Pollution Control Board

("Board") reconsider it ruling on the issue of Waiver ofHearing in

its November

1, 2007, Order based on Petitioner'soriginal Petition for Adjusted Standard filed with

this honorable Board on September

5, 2007 (Please see Exhibit 1).

1. In Paragraph 20 of Petitioner's original Petition for Adjusted Standard, Petitioner

states the following (Please see Exhibit

2):

20. While proofofnotice ofthis 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 contrwy

recommendation to the requestedadjustedstandard

(emphasis added). The

purpose

of this requested adjusted standard is to obtain certification of

closure ofthe Risley #2 landfill.

Petitioner anticipates Illinois EPA having

favorable recommendation as

the request for the adjusted standard

(emphasis added).

2. Petitioner'ssole reason for considering a waiver ofhearing in its original Petition for

Adjusted Standard was

to help expedite the process of obtaining Certification of Closure. At the

time

of filing, Petitioner reasonably believed that the Illinois Enviroml1ental Protection Agency

("lEPA" or "Agency") would provide a favorable recommendation, thereby eliminating the need for

a hearing to address any concerns about the requested Adjusted Standards. Since that time, and after

lengthy and thorough conversations with IEPA and IEPA Legal Division, not only has IEPA

requested additional information, the Agency has suggested that an Adjusted Standard for Sulfates

also be requested before this honorable Board.

3. All things considered, it would be inappropriate for Petitioner to waive hearing. In

Petitioner'sAmended Petition for Adjusted Standard (filed concurrently with this Motion), Petitioner

clarifies its position on this Waiver oft-Iearing to state that it does

not

wish to waive its right to a

hearing on the Amended Petition.

4. Allowing the parties to engage in candid conversation before this honorable Board

so that either Petitioner or the Agency can raise and resolve concerns related to Petitioner'srequest

for Adjusted Standards will allow for judicial economy to prevail in this matter.

WHEREFORE, for the reasons stated in this Motion, Petitionerrespectfullyrequests that

this honorable Board reconsider its ruling on the issue

of Waiver of Hearing as stated in the

November I, 2007, Order

of the Board, to allow Petitioner, in addition to the Agency or other

interested person, the opportunity to request a hearing on any Petition deficiencies.

Respectfully submitted,

Nobel Risley

DATED: November 30, 2007

By:

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PENNI S. LIVINGSTON #06196480

Attorney for the Petitioner

pelmi@livingstonlaw.biz

5701 Perrin Road

Fairview Heights, II, 62208

Telephone 618-628-7700

Fax 618-628-7710

Under Section 104.406(h) ofthc Board's regulations (35

Ill.

Adm. Code

104.406(h)) andjustil1cation for the relief sought, the Board requests

the

following information:

While the petition states that groundwater beneath

the landlill and down gradient

of the landlill does not presently serve as a source of drinking water, there is no

provision to include an institutional control prohibiting the use of groundwater

beneath the site for potable

use. The Board has required Euvironmental Land Use

Controls (ELUCs) prohihiting thc use of groundwater for potahle purposes in

similar adjusted standards.

See, e.g.

Petition by Hayden Wrecking Corporation

for an Adjusted Standard from

35 IlL Adm. Code 620.41O(a), AS 04-3, slip 01'. at

20 (Jan. 6, 2005) and Petition of the Village of Bensenville for an Adjusted

Standard from

35 Ill. Adm. Code 620.410 Regarding Chloride, AS 05-2, slip 01' at

17 (Oct. 20, 2005). The Landlill must clarify whether it has already recorded an

ELUC

specilic to the site to prohibit the use of groundwater at the site for potable

purposes.

not, the Landflll must address whether any adjusted standard requires

an instihltional control or Environmental Land Use Control.

The Board again notes that the LandfIll has waived hearing in this proceeding unless the

Agency or an interested person requests one,

so that petition deliciencies cannot be addressed at

hearing. Accordingly, thc Board directs the

Landlill to address tbese infoTIllational deliciencies

by filing an amended petition on or before December 3, 2007. Even if the Landlill has already

provided the Agency with some or

all oIthe requested inf0l1l1ation since the September 5, 2007

fIling of the petition, that information must be med with the Board to allow the Board to fulfill

its statutOly obligations.

If an amended petition curing the noted dcficiencies is not timely mcd,

this matter may be sUbject to dismissal>

As stated above, the Agency Recommendation is due to be filed November 19,2007

under the Board's October 4, 2007 order. lIthe Landfill needs additional time to me an

amended petition,

or the Agency needs additional time to liie'its Recommendation, the Board

directs the parties to apply

to the hearing omcer for any extension oItime, and grants the hearing

ol1lcer authority to extend the deadlines set in the Board orders issued today and October 4,

2007.

IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Iilinois Pollution Control Board, certify that

the Board adopted the above order on November

1, 2007, by a vote of 4-0.

John

T. Therriault, Assistant Clerk

Electronic Filing, Received, Clerk's Office, September 5,

.42~0~0~7~~m~!IiIII!IiIII'

* * • * •

AS 2008-003

• • •

* *

11II

Waiver of Hearing

~o.

While proof of notice of this filing and the tights thereunder for any person to

request a heming 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 Il1inois 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 reconunendation

as to the request for the adjusted standard>

WHEREFORE,

for all of the reasons stated above as more fully addressed in the

Tecll11ical 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 mgIL

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)

TIle existence

of these factors justifies an adjusted standard;

(3)

The requested standard will not result in envirolllnental 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

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

THE MATTER OF:

Petition for Adjusted Standard

from 35 m. ADM. CODE 620.420

For Nobel Risley's Landfill #2

)

AS 08-003

(Adjusted

Standard-Water)

Attorney for the Petitioner

pelllii@livingstonlaw.biz

570 I Perrin Road

Fairview Heights,

IL 62208

Telephone 618-628-7700

Fax 618-628-7710

PROOF OF SERVICE

I, Penni S. Livingston, an at1orney, hereby certifY that I caused the attached pleadings to

be served upon all pm1ies listed on the attached Notice

of Filing via electronic mail and either

Federal Express or UPS delivery, on November 30, 2007.

Respectnl!ly submitted,

pe.,,' S. Livingston,

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PENNI S. LIVINGST6N #06196480

DATED: November 30,2007