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rights to request hearing in the event of a negative Recommendation on the petition from the

Agency. See 35 Ill. Adm. Code 104.416. The Board grants this motion, noting that a

petitioner’s initial waiver of a hearing does not prevent petitioner from making a later request for

hearing in response to any Agency Recommendation. This is typically done as part of a response

to a negative Recommendation, or in an amended petition. See 35 Ill. Adm. Code 104.416 (d),

104.416(a).

The Agency filed its Recommendation on January 4, 2007. The Agency recommended

grant of the adjusted standard as to chloride, but denial of the adjusted standard as to sulfate.

The Landfill has made no filings in response to the Agency Recommendation (Ag. Rec.).

NO PUBLICATION OF NOTICE OF THE AMENDED PETITION

Section 28.1(d)(1) of the Environmental Protection Act (Act) (415 ILCS 5/28.1(d)(1)

(2006)) and Section 104.408(a) of the Board’s procedural rules (35 Ill. Adm. Code 104.408(a))

require the adjusted standard petitioner to publish notice of filing the petition. Those authorities

require advertisement in a newspaper of general circulation in the area likely to be affected by

the proposed adjusted standard. The notice must indicate that any person may cause a public

hearing to be held on the proposed adjusted standard by filing a hearing request with the Board

within 21 days after publication. 415 ILCS 5/28.1 (2006); 35 Ill. Adm. Code 104.408(b).

Publication must take place within 14 days after the petition is filed. See

, e.g.

, Petition of SCA

Tissue North American, L.L.C. for an Adjusted Standard from 35 Ill. Adm. Code 218.301 and

218.302(c), AS 05-1 (Jan. 6, 2005) (dismissing petition for adjusted standard for lack of

jurisdiction when publication of notice occurred after 14-day period). Within 30 days after filing

the petition, the petitioner must file a certificate of publication with the Board. 35 Ill. Adm.

Code 104.410.

The Board generally does not find that the Act and its rules require the filing of notice of

amendments to petitions. But, where the scope of the relief requested is changed, as it was here,

additional publication is required to protect the right of the public to request a hearing on the full

scope of the proposal eventually brought to the Board. The Board’s procedural rules explicitly

require the additional notice. See 415 ILCS 5/28.1(d)(1) (2006); 35 Ill. Adm. Code 104.408,

104.418(a). Section 104.418(a) provides, in pertinent part, that “[i]f the petitioner amends the

petition [so that it] requests additional or alternative relief, petitioner must re-notice the amended

petition pursuant to Section 104.408.” 35 Ill. Adm. Code 104.418(a); see also,

e.g.

Proposed

Extension of Adjusted Standard Applicable to Illinois-American Water Company's Alton Public

Water Supply Facility Discharge to the Mississippi River, AS 07-2 (Oct. 18, 2007) (amended

petition filed April 2, 2007, and new certificate of publication filed April 26, 2007).

More than 30 days have elapsed since the Landfill filed its adjusted standard petition with

the Board. The Landfill has not filed a certificate documenting that the necessary notice of its

amended petition was published within 14 days after the petition’s filing. The Board directs the

Landfill to file the required certificate by February 29, 2008, or that portion of the amended

petition seeking relief from the sulfate standard will be dismissed. The Board notes that such

dismissal would not prevent the Landfill from filing another adjusted standard petition for the

same relief and providing proof of the required notice. See, e.g. Petition of the City of Chicago

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Heights for an Adjusted Standard from 35 IAC 810.103, 814.102, and 814.501(c), AS 08-4 and

AS 08-7. Alternatively, if publication has not occurred, the Landfill may choose to withdraw

this petition, closing the docket, and file a new petition in a new docket. See, e.g. Petition of

Illinois Department of Transportation, District 8, for an Adjusted Standard from 35 Ill. Adm.

Code 302.208(g) (NPDES Permit No. ILD0070955), AS 07-7 and AS 08-1.

INFORMATIONAL DEFICIENCIES AS TO SULFATE REQUEST

Generally, the Board cannot grant an adjusted standard unless, “upon adequate proof by

the petitioner,” the Board determines that petitioner has satisfied the four factors in Section

28.1(c) of the Act. 415 ILCS 5/28.1(c) (2006); see also 35 Ill. Adm. Code 104.426 (a). The

Board has completed its initial review of the Landfill’s amended petition (Am. Pet.).

In its amended petition, the Landfill has adequately addressed the informational

deficiencies identified by the Board’s order of November 1, 2007 concerning the requested

adjustment of the Class II GWQS for chloride. The Board finds that the sulfate portion of the

amended petition satisfies informational requirements of 35 Ill. Adm. Code 104.426(a) for the

most part. But, the Board shares the Agency’s concerns regarding the lack of support in the

petition for Landfill’s request for increase of the sulfate limit from 400 mg/L to 4500 mg/L. The

proposed sulfate limit (4500 mg/L) is significantly higher than the highest sulfate concentration

measured in the downgradient-monitoring well (G104).

The petitioner states that although sulfate concentrations have never exceeded 3300 mg/L

in the downgradient-monitoring well G104, the proposed higher limit is necessary to account for

potential spatial and temporal variation. Am. Pet. at 11. The petitioner has not supported its

assertions regarding the variability of sulfate concentrations with any statistical analysis of the

groundwater monitoring data.

According to the amended petition, the highest sulfate concentration measured in G104

was 3290 mg/L on January 14, 2000. Am. Pet. Exh. 2, Append. B, Table B-1. The monitoring

data also show a decreasing trend with a sulfate concentration of 2090 mg/L measured on

September 2, 2004 when the operator terminated the quarterly groundwater monitoring. The

Agency verified the decreasing trend in sulfate concentration in well G104. Ag. Rec. at 6, and

Exh. 5. A recent sample taken from the same well on May 9, 2007 had a sulfate concentration of

941 mg/L. Id. The Agency’s recommendation notes that while a statistical analysis of the

sulfate monitoring data identified the May 2007 sulfate concentration as an outlier, the data point

is considered a valid observation since the petitioner has not demonstrated that data point is due

to a sampling or laboratory error. Ag. Rec. at 6. Further, the prediction limits developed by the

Agency for well G104 were significantly lower than the proposed sulfate concentration of 4500

mg/L. Id.

The Board directs the Landfill, in an amended petition, to provide additional justification

to support the proposed sulfate limit of 4,500 mg/L, or to propose a revised sulfate limit

consistent with the Agency’s statistical data analysis and any other justification the Landfill may

submit. If an amended petition curing the noted deficiencies is not filed on or before February

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29, 2008, this matter is subject to dismissal. The Agency is free to file an amended

Recommendation in response to any amended petition.

If the Landfill needs additional time to file an amended petition, or the Agency needs

additional time to file any amended Recommendation, the Board directs the parties to apply to

the hearing officer for any extension of time, and grants the hearing officer authority to extend

the deadlines set in the Board order today.

IT IS SO ORDERED.

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

the Board adopted the above order on January 24, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board