SILBRICO CORPORATION,
Petitioner,
V .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
.
NOTICE OF FILING
To
:
(See attached Service List.)
PLEASE TAKE NOTICE that on this 30 th day of December 2005, there was filed
with the Illinois Pollution Control Board, Petitioner Silbrico Corporation's Response
to Agency Recommendation, which is attached and herewith served upon you
.
SILBRICO CORPORATION
By
:
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
Elizabeth S. H
One of its attorne
RECEIVED
CLERK'S OFFICE
DEC 3 0 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDSTATE
OF ILLINOIS
Pollution Control Board
[x]
Under penalties as provided by law
pursuant to 735 ILCS 5/1-109, I certify
that the statements set forth herein
are true and correct .
CERTIFICATE OF SERVICE
I,
the
undersigned
non-attorney,
state
that
I
served a copy
of
Petitioner
Silbrico
Corporation's Response to Agency Recommendation 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
December 30, 2005
.
a
2049-001
Mark V. Gurnik, Assistant Counsel
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Christopher P. Perzan *
Environmental Enforcement
Office of the Attorney General
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Courtesy Copy
SERVICE LIST
Case No. PCB 06-011
(Variance -- Land)
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC 3 0 2005
STATE OF
ILLINOIS
Pollution Control Board
SILBRICO CORPORATION,
)
Petitioner,
)
v .
)
PCB 06-011
(Variance-land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
RESPONSE TO AGENCY RECOMMENDATION
Petitioner SILBRICO CORPORATION ("Silbrico"), by its attorneys Swanson,
Martin & Bell, LLP, hereby responds to the Illinois Environmental Protection Agency's
("Agency") recommendation. This response is filed pursuant to Section 104.220 of the
Board's procedural rules . (35 III.Adm.Code 104.220 .)
HEARING
Silbrico has previously requested a hearing in this matter . (Petition for variance,
page 9.) Silbrico does not waive its right to a hearing
.
RESPONSE
The Agency raises several objections to the grant of Silbrico's requested
variance .
In this response, Silbrico responds to some of those stated objections
.
Silbrico reserves its right to further respond at hearing, and in post-hearing filings
.
Section three'
In its comments on the facts as presented by Silbrico, the Agency takes issue
with Silbrico's reference to Section 20(d)(4) of the Environmental Protection Act (Act)
.
(415 ILCS 5/20(d)(4).) The Agency claims that Section 20(d)(4) deals with hazardous
waste monofills, not with clean construction and demolition debris (CCDD)
fill
operations, and thus Silbrico's citation to that section is inappropriate
.
However,
Silbrico cited to Section 20(d)(4) as an illustration that the legislature has recognized
that "there are wastes which have reduced environmental threat
. .
. because they are
non-putrescible, homogeneous, do not contain free liquids, or for other reasons ." (415
ILCS 5/20(d)(4).) In other words, the General Assembly has recognized that some
types of wastes may be disposed of other than in a regulated solid waste landfill . That
is the case with Silbrico's perlite wastes: they are non-putrescible, homogeneous, and
do not contain free liquids
.
Thus, the perlite wastes do not present the same
environmental threat as wastes which are putrescible, non-homogeneous, or contain
free liquids
.
Silbrico did not intend to imply that CCDD fill operations are in fact
monofills, but simply to illustrate that the legislature distinguishes between the
environmental concerns presented by different types of wastes .
Section eleven
The Agency notes that the Board has previously held that, where a petitioner is
currently in compliance, it is presumed that continued compliance is not arbitrary or
unreasonable .
JLM Chemicals, Inc. v. Illinois Environmental Protection Agency, PCB
95-98 (September 7, 1995)
.
However, that presumption can be overcome, and the
Board has in fact granted variances to petitioners who were in current compliance with
Section headings correspond to the appropriate section
of
the Agency's recommendation .
2
the Act and regulations
.
See, e.g., Marathon Oil
Company v. Illinois
Environmental
Protection Agency,
PCB 95-150 (May 16, 1996), 1996 III. ENV LEXIS 359, *32-33
.
Silbrico has demonstrated that continued compliance with the Act, while it pursues its
site-specific rule, presents an arbitrary and unreasonable hardship. Silbrico's current
compliance with the Act is not a reason to deny the variance
.
The Agency is also apparently uncomfortable with connection between Silbrico's
requested variance and its requested site-specific rule .
Silbrico is uncertain of the
reasoning for this apparent uneasiness
.
The Board has longstanding practice of
considering variance requests in conjunction with petitions for site-specific rules . For
example, in Amerock
Corporation v. Illinois Environmental Protection Agency,
PCB 87-
131 (January 9, 1992), 1992 III . ENV LEXIS 70, the Board granted a water variance to
Amerock Corporation . Amerock's compliance plan was pursuing a site-specific rule . If
the site-specific rule request was denied, Amerock's alternative compliance plan was to
implement one of three control options
.
1992 III. ENV LEXIS 70, *4-5
.
The Board
accepted that compliance plan, and granted the variance . 1992 III. ENV LEXIS 70, *9-
10 .
Silbrico's situation is analogous to Amerock's situation . Silbrico has requested a
variance while its site-specific rule petition is pending, but has also committed to
compliance with the Act if the site-specific rule is denied
.
(Petition, p. 7; Amended
Petition, p. 11 .) As in Amerock, the Board should reject the Agency's recommendation
of denial, and grant the requested variance
.
3
Dated
: December 30, 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
CONCLUSION
Silbrico
has
demonstrated
that
compliance with the current disposal
requirements for its two perlite waste streams presents an arbitrary or unreasonable
hardship .
Silbrico looks forward to the hearing on this matter, and to post-hearing
filings, to further address the issues
.
Respectfully submitted,
SILBRICO CORPORATION
F
&A
N
I
4
