BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED AMENDMENT TO PETITION FOR ADJUSTED STANDARD
A. Proposed Language

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BFI WASTE SYSTEMS

AS 08-05

OF NORTH AMERICA, INC. FOR AN

(RCRA Delisting)

ADJUSTED STANDARD WASTE

DELISTING

NOTICE OF FILING

To:

Clerk of the Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Bradley P. Halloran, Hearing Officer

Paul Jagiello, Assistant Counsel

Illinois Pollution Control Board

Division of Legal Counsel

James R. Thompson Center

Illinois Environmental Protection Agency

100 West Randolph St., Suite 11-500

9511 West Harrison Street

Chicago, IL 60601

Des Plaines, IL 60016

Mary A. Gade, Regional Administrator

Mr. William Ingersoll, Manager

U.S. Environmental Protection Agency

Enforcement Programs

Region 5

Illinois Environmental Protection Agency

77 West Jackson Boulevard

1021 North Grand Avenue East

Chicago, IL 60604

Post Office Box 19276

Springfield, IL 62794-9276

Please take notice that on April 14, 2008 the undersigned caused to be filed with the

Clerk of the Illinois Pollution Control Board BFI WASTE SYSTEMS OF NORTH AMERICA,

INC.’S RESPONSE TO ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S

RECOMMENDATION, MOTION TO AMEND PETITION FOR ADJUSTED STANDARD

WASTE DELISTING, AND PROPOSED AMENDMENT TO PETITION FOR ADJUSTED

STANDARD, copies of which are herewith served upon you.

_________________________________

By: One of the Attorneys for Petitioner

Patricia F. Sharkey

McGuireWoods LLP

77 West Wacker, Suite 4100

Chicago, IL 60601

Telephone: 312/849-8100

Electronic Filing - Received, Clerk's Office, April 14, 2008

PRINTED ON RECYCLED PAPER

CERTIFICATE OF SERVICE

I, Patricia F. Sharkey, hereby certify that I served a copy of the above-listed documents upon

those listed on the attached Notice of Filing on April 14, 2008 via First Class United States Mail,

postage prepaid.

__________________________________

One of the Attorneys for Petitioner

McGuireWoods LLP

77 West Wacker, Suite 4100

Chicago, Illinois 60601

Telephone: 312/849-8100

\5301111.1

Electronic Filing - Received, Clerk's Office, April 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BFI WASTE SYSTEMS

AS 08-05

OF NORTH AMERICA, INC. FOR AN

(Adjusted Standard –Land)

ADJUSTED STANDARD WASTE

(Waste Delisting)

DELISTING

BFI WASTE SYSTEMS OF NORTH AMERICA, INC. RESPONSE TO

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY RECOMMENDATION

NOW COMES BFI Waste Systems of North America, Inc. (“BFI”), by its

attorneys McGuireWoods LLP, and responds to the Illinois Environmental Protection

Agency (“Agency”) recommendation in this matter, titled “Response to the Petition for

Adjusted Standard Waste Delisting,” and dated March 25, 2008.

In response, BFI states:

In its recommendation, the Agency stated that it believed that BFI had not

met the required level of justification to warrant issuance of the adjusted standard.

BFI and the Agency have had further discussion on this matter since

March 25, 2008. In response to those discussions, BFI has drafted amendments to the

Adjusted Standard language contained in the Petition, a copy of which is attached hereto

and which is being filed with the Board today as an amendment to the Petition. BFI

believes these amendments satisfy the concerns raised in the Agency’s recommendation.

BFI has also received a number of specific questions from the Board. It is

BFI’s intent to answer those questions on the date specified. BFI will also be prepared to

discuss these matters, as well as the amendatory language, at the hearing scheduled for

May 15, 2008.

Electronic Filing - Received, Clerk's Office, April 14, 2008

Respectfully submitted,

___________________________________

BFI Waste Systems of North America, Inc.

By One of Its Attorneys

April 14, 2008

Patricia F. Sharkey

McGuireWoods LLC

Suite 4100

77 West Wacker Drive

Chicago, Illinois 60601

(312) 849-8100

Electronic Filing - Received, Clerk's Office, April 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BFI WASTE SYSTEMS

AS 08-05

OF NORTH AMERICA, INC. FOR AN

(Adjusted Standard –Land)

ADJUSTED STANDARD WASTE

(Waste Delisting)

DELISTING

MOTION TO AMEND

PETITION FOR ADJUSTED STANDARD

WASTE DELISTING

NOW COMES BFI Waste Systems of North America, Inc. (“BFI”), by its

attorneys McGuireWoods LLP, moves the Illinois Pollution Control Board (“Board”) to

accept the attached Proposed Amendment to the Petition for Adjusted Standard filed in

this matter on November 21, 2007 for consideration in this proceeding.

In support thereof, BFI states:

On November 21, 2007, BFI filed a Petition for Adjusted Standard in this

matter which included proposed language for the Adjusted Standard. That language was

designed to expressly limit the scope of the hazardous waste delisting which is the subject

of the Petition to leachate which is transported pursuant to an Illinois Special Waste

Manifest to a permitted wastewater treatment plant.

Based upon the recommendation of the Illinois Environmental Protection

Agency (“Illinois EPA”) (filed on March 26, 2008) and conversations with Illinois EPA

personnel, BFI is proposing to amend the language of the Adjusted Standard to clarify the

intended scope of the Adjusted Standard and thus the delisting. BFI is also proposing to

Electronic Filing - Received, Clerk's Office, April 14, 2008

amend the language to include the specific testing requirements suggested by Illinois

EPA in its recommendation.

Specifically, BFI is proposing amendatory language for paragraph (g)

which would clarify that the delisting would only apply to leachate which is transported

to and received by

a permitted waste water treatment facility located in Illinois which has

a Pretreatment Program which has been approved by the United States Environmental

Protection Agency.

As stated in the Petition (p.17):

“The Adjusted Standard will not allow the leachate to be managed in a land

impoundment, ditch or by any other means which could result in contamination of the

leachate and/or a release of the leachate directly to the environment.”

As further stated in the Petition (p.19):

“The Adjusted Standard allows the leachate to be transported

for disposal at

permitted waste water treatment facility to Clean Water Act discharge requirements.

This is consistent with the domestic sewer exemption in 35 Ill. Adm. Code 721.104(40

CFR 261.4(a)). …It is also consistent with the statutory exemption for certain F039

leachate found in 35 Ill. Adm. Code 721.104(b)(15)(A)(iv) (40 CFR 261.4 (b)(15)(iv)).

That exemption exempts from the definition of hazardous waste certain leachate and gas

condensate from landfills where certain listed hazardous wastes were

disposed of

, on

certain conditions, including the condition that the waste stream is being transported

for

treatment and disposal at

an off-site facility which is

subject to regulation under Section

307(b) or 402 of the Federal Clean Water Act

.” [emphasis added]

Electronic Filing - Received, Clerk's Office, April 14, 2008

The amendatory language to paragraph (g) in the attached Proposed

Amendment is designed to make two things clear:

That the leachate will not be delisted unless it is actually transported to

and received by

a permitted wastewater treatment plant. Thus, if the leachate were

transported somewhere else, spilled along the way, or otherwise disposed of, it would not

be covered by the delisting and would be considered a listed hazardous waste subject to

all applicable requirements of the Resource Conservation and Recovery Act (“RCRA”)

program. Among other things, this clarification assures that the RCRA program

corrective action clean-up requirements will be triggered in the unlikely event that a spill

occurs during the transport of the leachate to the wastewater treatment facility.

That the receiving permitted wastewater treatment facility must be one

that has a Pretreatment Program which has been approved by the United States

Environmental Protection Agency. This assures that the wastewater treatment facility has

met the Clean Water Act’s (“CWA”) rigorous requirements for treating industrial waste.

In short, the Proposed Amendment to paragraph (g) clarifies the intent of

the Petition for Adjusted Standard to provide continued protection of the public health

and the environment within the context of two established and complimentary programs –

RCRA and CWA -- administered by Illinois EPA and the Board.

The amendatory language for paragraph (d) in the attached Proposed

Amendment will require that a representative sample from the first three truckloads of

leachate be tested for compliance with the delisting levels, as well as quarterly sampling

for the remainder of the first year of operation under the delisting. This language, which

Electronic Filing - Received, Clerk's Office, April 14, 2008

was recommended by the Illinois EPA, provides for more intensive sampling at the outset

to ensure that the leachate meets the criteria established in the delisting.

WHEREFORE, BFI respectfully requests that the Board accept the attached

Proposed Amendment to Petition for Adjusted Standard for consideration in this

proceeding.

Respectfully submitted,

__________________________

BFI Waste Management Systems of North America

By One of Its Attorneys

Patricia F. Sharkey

McGuireWoods LLC

Suite 4100

77 West Wacker Drive

Chicago, Illinois 60601

(312) 849-8100

Electronic Filing - Received, Clerk's Office, April 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BFI WASTE SYSTEMS

AS 08-05

OF NORTH AMERICA, INC. FOR AN

(Adjusted Standard –Land)

ADJUSTED STANDARD WASTE

(Waste Delisting)

DELISTING

PROPOSED AMENDMENT TO

PETITION FOR ADJUSTED STANDARD

BFI proposes the following amendment, as shown by underscoring, to the

Proposed Language for the Proposed Adjusted Standard included on pp. 14- 16 of the

Petition:

Proposed Language

Leachate generated at the closed Phase I Unit at the BFI Waste Systems of North

America, Inc. (“BFI”) Davis Junction Landfill in Davis Junction, Ogle County,

Illinois shall not be deemed a hazardous waste pursuant to 35 Ill. Adm. Code 721

under the following circumstances:

The Phase I Unit is subject to an Illinois Environmental Protection Agency

RCRA Post –Closure Permit which prohibits the disposal of any new solid or

liquid waste in the Phase I Unit, requires maintenance of the landfill cap and liner,

and requires operation of a leachate collection system;

The leachate is hard-piped directly from the landfill to an on-site storage

tank which is regulated under the RCRA Post-Closure Permit and is not stored or

managed in a surface impoundment, conveyed by ditches or otherwise managed

prior to transportation for off-site disposal;

The leachate does not exhibit any characteristic of hazardous waste as

defined in 35 Ill. Adm. Code 721.121, 721.122, 721123 and 721.124 and shall not

exceed the delisting level concentrations in Table A below;

Within the first 12 months following the effective date of this delisting,

BFI tests a representative sample of the leachate from the first three tanker trucks

of leachate shipped pursuant to this Adjusted Standard, and from one tanker truck

in each of the next three quarters of the 12 month period. Such samples shall by

Electronic Filing - Received, Clerk's Office, April 14, 2008

analyzed for the constituents listed in Table A (below) and hazardous

characteristics as defined in 35 Ill. Adm. Code 721.121, 721.122, 721123 and

721.124. If none of the delisting levels in Table A are confirmed to be exceeded,

such testing shall continue on a semi-annual basis thereafter. If an initial sample

concentration is observed above the delisting level, then a verification sample will

be collected within 7 days and reanalyzed for the constituent(s) exhibiting a

concentration greater than the delisting level. A confirmed exceedance of the

delisting level will be deemed present if both the original and verification sample

exhibit concentrations above the delisting level;

If concentrations of the constituents listed in Table A (below) are

confirmed to exceed the delisting levels using the verification procedures

described above in item (d) or if the leachate is confirmed to exhibit a hazardous

characteristic, the leachate shall not be disposed of except as a hazardous waste

until such time as it is demonstrated by the testing procedures below to meet the

criteria of this Adjusted Standard. Prior to re-initiating management and disposal

pursuant to this Adjusted Standard, BFI must perform additional testing, including

a minimum of four representative samples taken over not less than a 14 day

period, each of which confirms concentrations of F039 hazardous constituents

below the delisting levels and the absence of any hazardous characteristic;

The leachate is transported in compliance with the requirements applicable

to an Illinois Special Waste (35 Ill. Adm. Code Part 809) to and received by a

permitted waste water treatment facility located in Illinois which has a

Pretreatment Program which has been approved by the United States

Environmental Protection Agency.

At least 60 days prior to transporting the first load of delisted leachate,

BFI shall provide a one-time written notification to the Illinois Environmental

Protection Agency stating that it is commencing transportation of delisted

leachate pursuant to this delisting and the name of the waste water treatment

facility to which the leachate will be transported. If BFI changes disposal

facilities, it shall provide to Illinois Environmental Protection Agency a one-time

written notification of such change; and

BFI shall not transport the leachate delisted pursuant to this Adjusted

Standard outside of the State of Illinois.

Table A

Constituent of Concern

Delisting Level (mg/L)

Arsenic

0.525

Barium

151

Benzene

0.153

Cadmium

0.409

Carbon Disulfide

118

Chromium

1,040

Dichloropropene, cis-1, 3-

1,000,000

Electronic Filing - Received, Clerk's Office, April 14, 2008

Cobalt

118

Copper

24,700

Diethyl phthalate

1,270

Endrin

32,700

Ethylbenzene

57.2

Isobutyl alcohol

299

Lead

204

Mercury

0.22

Methanol

499

Methyl ethyl ketone

599

Methylene chloride

0.198

Methyl isobutyl ketone

79.8

Naphthalene

6.51

Nickel

76.8

Cresol, p-

5.37

Phenol

645

Styrene

6.2

Tetrachloroethylene

0.174

Tin

1180

Toluene

40.2

Trichloroethylene

0.164

Vanadium

57.1

Vinyl chloride

0.2

Xylenes (total)

886

Zinc

760

Dichloroethane, 1-1-

99.8

Dichloroethane, 1,2-

0.0354

Dioxane, 1,4-

100

Trichlorophenoxypripionic acid, 2,4, 5- (Silvex)

1.43

Dichlorophenoxyacetic acid, 2,4- (2,4-D)

1.86

Dimethylphenol, 2,4-

27.6

Acetone

99.8

Respectfully submitted,

__________________________

BFI Waste Management Systems of North America

By One of Its Attorneys

April 14, 2008

Patricia F. Sharkey

McGuireWoods LLC

Suite 4100

77 West Wacker Drive

Chicago, Illinois 60601

(312) 849-8100

Electronic Filing - Received, Clerk's Office, April 14, 2008