BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARD

IN

THE

MATTER OF:

PROPOSED SITE SPECIFIC WASTE

REGULATION APPLICABLE TO

SILBRICO CORPORATION

(35 III.Adm.Code Part 810)

CLERK

OCT27~

~

~,~j’VO!s

R

06-08

(Site-Specific

Rulemaking

--

Land)

)

To:

(See attached Service

List.)

NOTICE

OF

FILING

PLEASE

TAKE NOTICE

that

on this

27th

day of

October

2005, the

following was

filed

with

the

Illinois

Pollution

Control

Board:

Petitioner

Silbrico

Corporation’s

Response to Motion to Dismiss,

which

is attached and herewith

served

upon you.

Elizabeth

S.

Harvey

Michael

J. Maher

SWANSON,

MARTIN

& BELL,

LLP

One IBM

Plaza,

Suite 3300

330

North Wabash Avenue

Chicago,

Illinois

60611

SILBRICO

CORPORATION

By:

One of

its

attorneys

Telephone: (312) 321-9100

---

CERTIFICATE OF SERVICE

I,

the

undersigned

non-attorney,

state

that

I

served

a

copy

of

Petitioner Silbrico

Corporation’s

Response

to

Motion

to

Dismiss

to

counsel

of

record

in

the

above-

captioned

matter

via

U.S.

Mail

at

One

IBM

Plaza,

Chicago,

IL

60611

on

or

before

5:00

p.m.

on October 27,

2005.

‘X

Jè~pétte

M.

Podlin

xi

Under penalties

as provided by

law

pursuant to 735 lLcs 5/1-109,

I certify

that the statements set forth

herein

are true

and correct.

---

2049-002

SERVICE

LIST

Case

No.

R 06-08

(Site-Specific Rulemaking

--

Land)

Mark V.

Gurnik, Assistant Counsel

Illinois Environmental

Protection Agency

Division of Legal Counsel

1021

North

Grand Avenue East

P.O.

Box 19276

Springfield,

Illinois

62794-9276

Department of Commerce and Economic

Opportunity

Office of Legal Counsel

620

East Adams Street

Springfield,

Illinois

62701-1615

Christopher

P.

Perzan

Environmental

Enforcement

Office of the Attorney General

188 West Randolph Street

~

Floor

Chicago,

Illinois

60601

John

Kittle,

Hearing Officer

Illinois Pollution Control

Board

2125 South

First Street

Champaign,

Illinois

61820

Office of Legal Services

Illinois Department of Natural Resources

524

South Second Street

Springfield,

Illinois

62701-1787

---

BEFORE

THE

ILLINOIS POLLUTION CONTROL

BOARD

OFF/CE

OCT 2 ~2Og

IN

THE

MATTER OF:

)

ST4yE OF

PROPOSED SITE SPECIFIC WASTE

)

R 06-08

01

8oard

REGULATION

APPLICABLE TO

)

(Site-Specific Rulemaking

--

Land)

SILBRICO CORPORATION

(35 lll.Adm.Code

Part 810)

RESPONSE TO

MOTION

TO DISMISS

Petitioner

SILBRICO

CORPORATION

(“Silbrico”),

by

its

attorneys

Swanson,

Martin

& Bell,

LLP,

hereby responds

in opposition to the

People of the

State

of Illinois’,

by the Attorney General, motion

to dismiss this petition for

a site-specific rule.

INTRODUCTION

Silbrico

filed

its

petition

for

site-specific

rulemaking

on

July

19,

2005.

On

September

1, 2005,

the

Board found that the

petition

satisfies the

content

requirements

of

the

Environmental

Protection

Act and

the

Board’s

procedural

rules.

Therefore,

the

Board

accepted

the

proposal

for hearing.

(See September

1,

2005

order of the

Board,

attached as Exhibit A.)

On

October

7,

2005,

the

People filed

a

motion

to

dismiss the

petition.

Counsel

for

Silbrico

received

the

motion

to

dismiss

on

October

13,

2005.

Pursuant

to

the

Board’s

procedural

rules,

a

party

may file

a

response to the

motion

within

14 days after

service

of the

motion.

35 lll.Adm.Code

101.500(d).

Thus,

Silbrico’s

response

is due on

October

27,

2005.1

This response is timely filed.

1

Silbrico

is

aware

that

the

Board’s

rules

provide

that

service

by

mail

is

presumed complete-Jour

days

after

mailing.

That

presumption

can

be

rebutted

by

proper

proof.

35

lll.Adm.Code

101.300(c).

Here,

the Attorney General’s

certificate

of service states

that the

motion was

mailed

on

October

7,

2005.

However, the

motion

was

not received

by

Sllbrico’s counsel until

October

13,

2005.

There was

a federal

---

ARGUMENT

Silbrico’s

request

for

a

site-specific

rule

seeks

to

allow

it

to

treat

the

two

nonhazardous

wastes

discussed

in

its

petition

—

off-specification

perlite

and

fugitive

perlite from

baghouse

dust collections (collectively,

the

“perlite waste”)

—

as construction

and

demolition debris for purposes of disposal.

The Attorney General

makes two claims

in support of the

motion

to dismiss:

1) that the

petition should be dismissed for failure to

serve the

initial

petition

on

the

Attorney

General;

and

2)

that the

Board

lacks

statutory

authority to grant Silbrico’s

requested site-specific rule.

Both arguments fail.

Silbrico has served

the Attorney General and

DNR with the

petition

The

first

alleged

grounds

for

dismissal

is

Silbrico’s

failure

to

initially

serve

the

petition

on

the

Attorney

General

and

the

Department

of

Natural

Resources

(DNR).

Silbrico

did,

through

a

clerical

oversight,

omit the Attorney

General

and

DNR

from

the

service

list

for

its

petition.

The

petition

has

now

been

served

on

both

the

Attorney

General

and

DNR.

See

cover

letters,

attached

as

Exhibits

C

and

D.

The

petition

had

already

been

accepted

by

the

Board

as

meeting

the

requirements of the Act and

the

Board’s

rules.

See

Exhibit

A.

There

is

no

prejudice

to

the Attorney

General,

to

the

People,

or to

DNR,

by this

clerical

oversight.

The

initial

oversight

is

not

grounds

for

dismissal,

especially after the

petition was

accepted by the Board.

The Board has the authority to grant Silbrico’s

requested site-specific rule

The

Attorney

General

seeks

to

have

Silbrico’s

petition

stricken

based

on

its

assertion

that

this

Board

does

not

have

the

authority

to

grant

its

request.

Motion

to

Dismiss,

p.

2.

The Attorney

General

is

mistaken.

Because

Silbrico

seeks

to

have

its

holiday

during

that

period,

perhaps

thus

delaying

delivery

of

the

motion.

Slibrico’s

counsel’s

affidavit,

stating that the motion was

not received

until October

13,

is attached

as

Exhibit

B.

2

---

perlite

waste

treated

as

clean

construction

and

demolition

debris,

rather

than

reclassified

as clean

construction

and demolition

debris,

Silbrico’s

request

is within

this

Board’s authority.

The State’s motion

should

be denied.

Fundamentally

at

issue

in

the

Attorney

General’s

motion

is

the

scope

of

415

ILCS

5/27

(2005),

which

allows

this

Board

to

adopt

or amend

existing

rules.

Section

27(a) states:

The

Board

may

adopt

substantive

regulations

as

described

in

this

Act.

Any

such

regulations

may

make

different

provisions

as

required

by

circumstances

for

different

contaminant

sources

and

for

different

geographical

areas;

may

apply

to

sources

outside

this

State

causing,

contributing

to,

or threatening

environmental damage

in

Illinois;

may make

special

provision

for

alert

and

abatement

standards

and

procedures

respecting occurrences

or emergencies

of pollution

or

on other

short-term

conditions

constituting

an

acute

danger

to

health

or

to

the

environment:

and

may

include

regulations

specific

to

individual

persons

or

sites.

In

promulgating

regulations under

this

Act, the

Board

shall take into

account

the

existing

physical

conditions,

the

character

of

the

area

involved,

including

the

character

of surrounding

land

uses,

zoning

classifications,

the

nature

of

the

existing

air

quality,

or

receiving

body

of

water,

as

the

case

may

be,

and

the

technical

feasibility

and

economic

reasonableness

of measuring

or reducing the particular type of pollution.

The generality of

this

grant

of

authority

shall

only

be

limited

by

the

specifications

of

particular classes of regulations elsewhere in

this Act.

415 ILCS 5/27(a)

(2005) (emphasis added).

As the

Attorney

General correctly

notes,

Section 3.160

of the Act

defines

clean

construction

and

demolition

debris

(CCDD)

as

“generated

from

construction

or

demolition

activities.”

415 ILCS

5/3.160

(2005).

The Attorney General further correctly

explains

that

an

administrative

agency

can

only

issue

rules

and

regulations

that

are

authorized by statute

and

in

accord

with

the

policies

and

language of the

statute.

See,

e.g.,

Montgomery

Ward Life

Ins.

Co.

v.

Dep’t of Local

Gov’t Affairs,

89

III. App.

3d

292,

302,

411

N.E.2d

973,

980

(15t

Dist.

1980).

However,

the

Attorney

General

3

---

misunderstands the

relief

requested

by

Silbrico.

Silbrico does

not

seek

a site-specific

regulation that would conflict with the

statute.

Specifically,

Silbrico’s

petition does

not

request that this

Board

redefine the

Act’s

definition

of

clean

construction

and

demolition

debris

to

include

perlite

and

perlite-

related

waste.

Rather,

Silbrico

requests

that

this

Board

issue

a

site-specific

rule

recognizing, for

Silbrico’s

benefit

only,

Silbrico-created

perlite waste can

be disposed

of

in

a

facility that

is allowed to

accept

CCDD.

The

proposed

language of Silbrico’s

site-

specific

rule, as set forth

in

its petition,

is:

Section 810.105

Waste Streams from

Silbrico Corporation

a)

This

regulation

applies

only

to

the

specified

waste

streams

from

Silbrico Corporation’s Hodgkins,

Cook County,

Illinois

facility.

b)

This regulation

applies to two waste streams

from

Silbrico’s

facility:

off-specification

perlite,

and

fugitive

perlite

(collectively,

“the

specified waste streams”).

c)

The

specified

waste

streams

may

be

disposed

of

in

a

“clean

fill”

facility that accepts only “clean construction

and demolition

debris,”

as defined at 415 ILCS 5/3.160(b).

Petition for site-specific rule,

p.

3~2

Silbrico does

not seek

a

finding that the

perlite waste streams

are CCDD.

Thus,

Silbrico

is

not

asking

the

Board

to

amend the statutory definition

of CCDD

through

the

requested

site-specific.

Instead,

Silbrico asks the

Board to adopt

a

rule

recognizing that

Silbrico’s

perlite

waste

streams

are

similar

to

CCDD,

such

that

those

perlite

waste

2

Because

of

statutory

amendments

made

after

Silbrico

filed

its

petition

for

site-specific

rule,

Silbrico will

propose,

at

hearing,

an

amended

subsection

(c).

P.A.

94-0272

added

Section

22.51

to

the

Act,

which

establishes

registration

and

permitting

requirements

for ‘clean

construction

and

demolition

debris fill operations.”

Silbrico will propose

an amended

subsection (c) which

reads “The specified waste

streams

may be disposed of

in

a

‘clean construction and

demolition

debris operation’ which

has obtained

the

necessary authorization and/or permit pursuant to Section 22.51

of the Act.”

4

---

streams

can

be safely and appropriately disposed

of at

a

CCDD operation.3

While this

distinction

may,

at

first

glance,

appear

to

be

slight,

the

distinction

is

very

important.

Section

27(a)

of the Act

specifically

allows

the

Board

to

make

“different

provisions

as

required

by circumstances

for different contaminate sources.”

415

ILCS 5/27(a)

(2005).

Silbrico’s

request for site-specific

is exactly

the

type of thing

allowed for

by the specific

terms of Section

27(a):

a

different provision

as

required

by circumstances.

The

Board

has the

authority, under Section

27(a),

to grant Silbrico’s

requested

site-specific rule.

Finally,

the

Attorney

General

makes

the

broad

statement

that

Silbrico’s

requested rule “could lead

to

a

massive and

legislatively

unauthorized

expansive

sic

of

the

scope

of

sic

construction

and

demolition

debris

regulatory

scheme”

in

Illinois.

Motion

to

Dismiss,

p.

4.

This

statement

is

needless

hysteria.

The

requested

site-

specific,

if

granted, would

of course

apply

only to

Silbrico.

Any other entity

which

may

seek to dispose of its

own waste streams

in

a

CCDD operation would

have

to propose

a

site-specific rule to the

Board,

and demonstrate

that such

disposal

in

a

CCDD operation

is

appropriate.

That

procedure

follows

exactly

the

legislature’s

scheme

in

the

Act:

giving

the

Board

the

authority,

upon

adequate

proof,

to

“make

different

provisions

as

required

by circumstances

for different contaminant sources.”

415 ILCS

5/27(a)

(2005).

The motion

to dismiss must be denied.

The justification for allowing the perlite wastes to

be disposed of

at

a CCDD operation is

set forth

in the petition for site-specific

rule.

5

---

CONCLUSION

Silbrico

had

complied

with

the

service

requirements

of

Section

102.208 of the

Board’s

procedural

rules.

Further,

the

Board

has

the

statutory

authority,

pursuant

to

Section

27(a),

to

grant

Silbrico’s

proposed

site-specific

rule.

Therefore,

the

motion

to

dismiss must be denied.

Respectfully submitted,

SILBRICO CORPORATION

L?

Or&of its

atforney~

~

Dated:

October

27,

2005

Elizabeth

S.

Harvey

Michael

J.

Maher

Swanson,

Martin

&

Bell,

LLP

One IBM

Plaza,

Suite

3300

330 North Wabash Avenue

Chicago,

Illinois

60611

Telephone:

(312) 321-9100

6

---

ILLINOIS POLLUTION CONTROL BOARD

September

1,

2005

IN ThE MAFFER OF:

)

)

PROPOSED SITE

SPECIFIC WASTE

)

R06-8

REGULATION APPLICABLE TO

)

(Rulemaking

-

Water)

SILBRICO CORPORATION (35

ILL. ADM.

)

CODEPART81O)

)

ORDER OF

THE

BOARD

(by

T.E. Johnson):

On July

19, 2005, the Boardreceived a rulemaking proposal submitted by Silbrico

Corporation (Silbrico) pursuant to Section 27 of the Illinois Environmental Protection Act(Act).

415 ILCS

5/27 (2004).

Silbrico seeks a site-specific rule allowing it to dispose of nonhazardous,

inert waste generated at a manufacturing facility located in Cook County at a “construction and

demolition debris”

facility.

The petition was accompanied by

a motion to waive the 200-

signature requirement of 35

flI. Adm. Code

102.202(f).

Silbrico simultaneously

filed a petition

for variance concerning the same manufacturing facility that the Board docketed as PCB 06-11.

Silbrico was founded in 1946 and is located at 6300 River Road, Hodgkins, Cook

County.

Silbrico manufactures products using perlite, a volcanic rock that expands

up to 20

times whenheated.

Silbrico’s product line includes insulation, filter aids, filler and soil

conditioner.

Perlite soil conditioner is the little white kernels

found in potting soil.

Wastes are

generated from off-specification product and fugitive emissions captured by the bag house and

housekeeping.

Wastes

are currently disposed of at a non-hazardous waste landfill.

Pet. at 1.

Silbrico asserts that due to the inert and nonhazardous

characteristic of the off-

specification perlite and the fugitive perlite (collectively waste perlite), it seeks to dispose of

these wastes at a“clean fill” facility that accepts only clean construction and demolition debris.

Pet. at 1-2.

Silbrico asserts that allowing the disposal of the waste perlite at a “clean fill” facility

would save valuable space in municipal waste landfills and result in significant cost savings,

while posing no

environmental violation or threat.

Pet.

at 2.

The petition

for variance seeks

authorization for Silbrico to dispose ofthe waste while the petition for site-specific rule is

pending.

Id.

Silbricoproposes that the site-specific

rule be added

to Part 810 as new section

35111.

Adm.

Code 310.105.

Pet. at 2.

Silbrico intends the regulation to allow the waste perlite from its

Hodgkins facility to be disposedof in a “clean fill” facility that accepts only “clean construction

and demolition debris” as defined at415 ILCS 5/3.160(b) (2004).

Pet, at 3.

In its statement of reasons, Silbrico asserts that the continued disposal ofthe waste perlite

at a nonhazardous waste landfill imposes an unreasonable hardship on Silbrico.

Pet. at

5.

Silbrico asserts that the both forms of waste perlite are nonhazardous waste streams that pose

no

threat to the environment.

Pet. at 6.

Silbrico asserts that no

environmental harm or impact on

human health will result if disposal in a “clean fill” facility is allowed.

Pet. at 7.

Silbrico

---

2

contends that perlite is a naturally occurring rock and that the expansion product does not add

any chemical or constituents to the rock.

Pet. at 6.

Further, Silbrico asserts that the Illinois

Environmental Protection Agency (Agency) has already determined that the waste perlite is not a

treat to human health or the environment when landfilled in a nonhazardous waste landfill.

Id.

Silbrico asserts that benefits of disposal in a “clean

fill” facility include conservation of

valuable space in nonhazardous waste landfill,

flexibility in arranging for disposal

sites, reduced

trucking distances, reduced chances of traffic accident and less airpollution based

on fewer

miles traveled.

Pet. at 7.

Silbrico estimates that it will

see a cost savings of at least $20,000 to

$25,000 per year if a site-specific rule is adopted.

Id.

Silbrico contends that the benefits coupled

with the

fact that disposal in a “clean fill” facility has no environmental impost and poses no

threat to human health or safety, support the grant of the requested rule.

Id.

Silbrico asserts that

compliance with the general rule

is economically unreasonable especially whenbalanced against

the benefits of the rule and the lack of environmental impact.

Id.

Silbrico

‘

s proposal, including its statement of reasons and the full text of the proposed

rule language, is available through the Clerk’

Office in Chicago (312-814-3620) and on the

Board’s Web

site (www.ipcb.state.il.us) using the Clerk’s Office On-Line or “COOL.”

The Board finds that the proposal satisfies the content requirements of the Act and the

Board’s procedural rules for rulemaking proposals.

The Board grants Silbrico’s motion to waive

the signature requirement, and accepts the proposal for hearing.

The assigned hearing officer is

directed to proceed expeditiously under the rulemaking provisions of the Act (415

ILCS 5/27,

28

(2004)) and the Board’s procedural

rules.

35 Ill. Adm. Code

102.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, ceftif~

that the Board

adopted the above order on

September 1,2005, by a vote of 5-0.

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board

---

AFFIDAVIT

I,

Elizabeth

S.

Harvey,

being

over the

age

of

21

and

having

been

duly

sworn on oath,

hereby state the following, based

on personal knowledge:

1.

I

am

counsel for petitioner

Silbrico

Corporation

in

In

re Proposed Site

Specific

Waste Regulation

Applicable to Sllbrico

Corporation,

pending

before the

Board as R06-08.

2.

The Attorney General’s

motion to

dismiss that petition

was

received

in

my

office

on

October

13,

2005.

3.

II called upon,

I

am

competent

to

testify to these mailers.

FURTHER AFFIANT SAYETH

NOT.

SUBSCRIBED

me thiscQ(pt4j

Notary Public

and SWORN

to

before

day of October, 2005.

LINDA L

QUINN

NOTARY

PUBLIC

STATE

OF

IUJNOIS

W~M~s~RaO1.24~T

izabeth

S.

Ha

---

SWANSON, MARTIN

&

BELL,

LU’

ATTORNEYS

AT LAW

Writer’s Direct

Dial

Line

ONE

IBM

PLAZA

•

SUITE

3300

(312)

923-8260

330

NORTH WABASH,

CHICAGO, ILLINOIS

60611

(312)

321-9100

•

FAX

(312)

321-0990

Writer’s

E-mail Address

eharvey~smbtfiaIs.

corn

October

14, 2005

,t/TL~T~

6H~3

C\17

Division Chief

r~S)J~’

~(

Environmental

Enforcement

Office

of the Attorney General

188 West Randolph Street

20th

Floor

Chicago,

Illinois

60601

Re:

Proposed Site Specific Waste Regulation

Applicable to Slibrico Corporation

R06-08

Division Chief:

Pursuant

to 35

Ill.Adm.Code

102.208

and

101.304(g)(3),

enclosed

please

find

a

copy ofSilbrico’s

petition for site-specific rule, pending before the Pollution Control Board.

Please call

me if you have any questions.

Very truly yours,

SWANSON,

MARTIN & BELL,

LLP

Elizabeth

S.

Harvey

ESH:jp

Enclosure

cc:

Christopher

P. Perzan

Office of the Attorney General

(w/enc.)

EXHIBIT

Ii

DLJPAGE

COUNTY OFFICE

•

2525

CABOT DRiVE

•

SUITE 204

•

LISLE, ILLINOIS 60532

•

(630)

799-6900

•

FAX

(630)

799-6901

LAKE COUNTY OFFICE

•

1860

WEST

WINCHESTER

ROAD

•

SUITE

201

•

LIBERTYVILLE, ILLINOIS 60048 ~-(847)

949-0025

•

FAX

(847)

247-0555

---

SWANSON,

MARTIN

&

BELL,

LU’

ATTORNEYS AT

LAW

Writer’s

Direct

Dial

Line

ONE

IBM

PLAZA

•

SUITE

3300

(312)

923-8260

330

NORTH

WABASH,

CHICAGO,

ILLINOIS

60611

(312)

321-9100

•

FAX

(312)

321-0990

Writer’s

E-mail Address

eharvey@srnbtriaIs.com

October 26,

2005

Office of Legal SeMces

~

V

Illinois

Department of Natural

Resources

524

S. Second

Street

Springfield,

Illinois

62701-1787

Re:

Proposed Site Specific Waste Regulation

Applicable

to Silbrico

Corporation

R06-08

Office of Legal Services:

Pursuant

to

35

Ill.Adm.Code

102.208

and

101.304(g)(3),

enclosed

please

find

a

copy ofSilbrico’s

petition for site-specific rule, pending before the Pollution Control Board.

Please call me

if you

have any questions.

Very truly yours,

SWANSON,

MARTIN & BELL, LLP

I

p-•~

1

C:~/Li

Elizabeth

S.

Harvey

ES H

:j

p

Enclosure

LL

DUFAGE

COUNTY OFFICE

•

2525

CABOT

DRJVE

•

SUITE 204

•

LISLE,

ILLINOIS

60532

•

(630)

799-6900

•

FA~6507

799’69C1

LAKE COUNTY

OFFICE

•

1860

WEST

WINCHESTER

ROAD

•

SUITE 201

•

LIBERTYVILLE,

ILLINOIS 60048

(845’) 949-0025

•

FAX

(847)

247-0555