BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETITION OF BIG
RIVER ZINC
CORPORATION
FOR AN ADJUSTED
STANDARD UNDER 35 ILL. ADM. CODE
nO.l31(c)
NOTICE OF FILING
To:
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, IL 60601-3218
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 08-
(Adjusted Standard-RCRA)
PLEASE TAKE NOTICE that I have today filed with the Office
ofthe Clerk of the Pollution
Control Board the attached Petition for Adjusted Standard
of Big River Zinc Corporation, a copy
of which is herewith served upon you.
Date: April I, 2008
Jennifer T. Nijman
Nijrnan Franzetti LLP
10 S. LaSalle Street, Suite 3600
Chicago,
II 60603
3122515255
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETITION OF
BIG
RNER
ZINC
CORPORATION
FOR AN ADJUSTED
STANDARD UNDER 35 ILL. ADM. CODE
nO.l3I(c)
AS 08-
(Adjusted Standard-RCRA)
ADJUSTED STANDARD PETITION
Big River Zinc Corporation ("BRZ"), by its undersigned counsel, requests an amendment
to its existing adjusted standard ("AS-99-3") to revise Condition 2.a
(1). Currently, Condition
2.a (1) to AS-99-3 requires BRZ to conduct its two-step process of (i) washing zinc oxide to
remove inorganic salts,
and (ii) conducting electrolytic refining, both at BRZ'srefmery in
Sauget, Illinois.
BRZ requests that Condition 2.a (1) be revised to allow BRZ to continue its
process of accepting partially recovered zinc oxide from suppliers and washing the zinc oxide at
BRZ'srefinery in Sauget, Illinois, but then to
either
(i) continue the electrolytic refining process
at
BRZ's facility as described in AS-99-3, (ii) sell the washed zinc oxide to third parties for
further refining,
or
(iii) return the washed zinc oxide to the suppliers for sale to another refiner.
In each case, the final product is a valuable, reclaimed zinc product. This revised Condition does
not alter the previous substance
or fmdings ofthe Pollution Control Board ("Board"), is
supported by the Board's opinion in
In re
Horsehead Resource and Development Company, Inc.,
(Feb. 17,2000), AS 00-2, and allows
BRZ needed flexibility in its operations.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
1. Background
Until February 2006, BRZ operated an electrolytic zinc refinery in Sauget, St. Clair
County, Illinois. BRZ used various zinc-containing materials
as feedstock for its refinery. One of
the zinc-containing materials BRZ used as feed was "EAF zinc oxide". This material was
recovered by High Temperature Metals Recycling ("HTMR") processes from Electric Arc
Furnace Dust ("EAFD") generated during steel production in electric arc furnaces.
TIns
secondary zinc oxide material would ordinarily be considered a "solid waste" and a "hazardous
waste" under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
§§ 6901
et
seq.,
and corresponding Illinois hazardous waste laws and regulations.
In
AS-99-3, this Board
found that, pursuant to 35 Ill. Adm. Code 720. 131(c), the secondary zinc oxide material is not a
solid waste, and therefore not a hazardous waste. The Board's Order states, "The Board finds
that that zinc oxide material produced
by subjecting electric arc furnace (EAF) dust from the
primary production
of steel (K061 under 35
Ill.
Admin Code 721.132) to a high temperature
metals recovery (HTMR) process is not a solid waste and grants BRZ an adjusted standard under
35 Ill. Adm. Code 720.131(c)." A copy
ofthe Board's Opinion and Order is ached as Att. A
(and incorporated
by reference). The Board added as Condition 2.a (1) to the adjusted standard
that the "not solid waste" determination only applies to EAF zinc oxide material "that is to be
processed through
BRZ's electrolytic zinc refinery in Sauget, St. Clair County, Illinois" (Att. A,
Condition 2.a (l), p. 18). J
BRZ now requests that the Board amend Condition 2.a (1) to provide that BRZ is not limited
to conducting the complete refining process at its Sauget facility, but that BRZ may perform
washing
ofthe EAF zinc oxide (to remove inorganic salts) supplied to it by third parties or by its
1
BRZ has filed a Motion to Incorporate the record of AS-99-3 into these proceedings for the Board's reference.
2
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
parent, ZincOx, and then
either
(i) continue the electrolytic refining process at BRZ's facility as
described in AS-99-3, (ii) sell the washed zinc oxide to third parties for further refining,
or
(iii)
return the washed zinc oxide to the original supplier for sale to another refiner. The washed EAF
zinc oxide would be destined to undergo processing for further recovery
of an end product at
either
BRZ'sfacility or another entity'sfacility. 2
II. Analysis and Petition Content Requirements
The Board requires that certain informational requirements be included in each petition for
adjusted standard. 35 Ill. Adm. Code 104.406. In this case, however, BRZ seeks only a revision
to a Condition
of its existing adjusted standard. As a result, many ofthe informational
requirements in 104.406 are not applicable because they apply to the initial "solid waste"
determination previously made by the Board regarding the EAF zinc oxide supplied to BRZ.
a) Standard from which Adjusted Standard is Sought. The Board's Order in AS-99-3
already provides
BRZ with an exception to the determination of "solid waste" for the
EAF zinc oxide pursuant to 35
Ill.
Adm. Code 720.131 (c). BRZ requests that a Condition
to AS-99-3 be revised
as described herein.
b) Whether the regulation was promulgated to implement
... RCRA.... The 720. 13 I(c)
regulation was promulgated to implement the State program concerning RCRA. As
noted above, however, BRZ seeks only a rcvision to a Condition and not a new solid
waste declassification under the regulation.
, BRZ received a second adjusted standard from the Board for the Sauget facility in November 2006. AS-06-4. In
that case, the Board found that electric arc furnace dust, without HTMR treatment, was not a solid waste for the
purposes
of further refinement in new leach, solvent extraction, electrowinning (LSXEW) technology. BRZ was
unable to Install the proposed LSXEW process due to rising costs of the technology. Portions of BRZ's petition and
the Board'sOpinion
and Order are nevertheless Included in BRZ's motion to incorporate the record because the
documents include updated descriptions of the
BRZ facility and the zinc market.
3
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
c) Level of Justification as Specified by tbe Regulation. Section 720.131 (c) includes
specific criteria to be assessed when making a determination that materials that have been
reclaimed, but must be reclaimed further, are not solid wastes. The Board's Opinion and
Order in AS-99-3 contains a detailed analysis
of the criteria and tbe Board'sanalysis is
not affected
by this requested amendment. The Board determined tbat tbe zinc oxide dust
processed in
HTMR ("EAF zinc oxide") is not a solid waste. "The Board will determine
tbat tbose materials tbat have been reclaimed but must be reclaimed further before
recovery is completed are not solid wastes if, after
initial reclamation,
tbe resulting
material is commodity-like (even tbough it is not yet a commercial product, and has to be
reclaimed further)." (Att. A,
pJ). The Board found tbe initial reclamation to be tbe
HTMR process which is conducted by
BRZ'ssuppliers to create the EAF zinc oxide.
The Board tben applied tbe relevant criteria to tbe HTMR process and found tbe resulting
EAF zinc oxide supplied to BRZ to be commodity-like and tberefore not a solid waste.
3
d) Nature of Petitioner'sActivity tbat is tbe Subject ofthe Proposed Adjusted Standard.
BRZ will continue to process tbe same EAF zinc oxide material (treated by HTMR)
already exempted
by tbe Board, and further reclamation will still take place. Thus, tbe
Board need not reconsider tbe 720.131(c) criteria. The only change to the adjusted
standard is tbe location at which tbc final steps
of the reclaiming process may occur.
Instead
oftbe electrolytic process occurring at BRZ'sfacility in all cases, BRZ plans to
wash tbe EAF zinc oxide supplied to it and tben
either
(i) continue tbe electrolytic
refining process at
BRZ's facility as described in AS-99-3, (ii) sell tbe washed zinc oxide
to tbird parties for further refining,
or
(iii) return tbe washed zinc oxide to tbe suppliers
3 The Board specifically stated that "EAF zinc oxide that is washed to remove contaminants (inorganic salts) is being
'reclaimed:" Att. A at p. 11.
4
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
for sale to another refiner. BRZ will enter into contracts with its suppliers or third party
refiners to ensure the final reclaiming occurs. A description
ofBRZ'sprocess, including
the washing step, is included the Board's Opinion and Order and in the record for AS-99-
3. Att.
A, pp. 8-9.
BRZ is not currently operating its electrolytic zinc refinery because it has been
unable to find sufficient amounts
of feedstock at competitive prices to support ongoing
refining. See
In
re Big River Zinc, Opinion and Order AS 06-4, p. 5. Upon receipt oftllis
amendment to its adjusted standard, BRZ plans to enter into agreements with its suppliers
of EAF zinc oxide to begin receiving sufficient quantities of EAF zinc oxide for washing.
BRZ will then reopen the washing building at its refinery. See Affidavit
of George
Obeldobel, attached at Att. B. BRZ may expand its washing plant in the future and then
reopen the entire electrolytic refmery
as its supply of feedstock increases. Id.
e) Efforts to Comply with Regulation. BRZ'spetition in AS-99-3 describes the
consequences
ofthe EAF zinc oxide being classified as solid waste and BRZ'sneed to
acquire EAF zinc oxide to supplement the mined zinc oxide concentrates it otherwise
purchased
as feed for its zinc refmery. BRZ seeks to reopen the washing plant at its
refming facility to conduct the washing step
of the reclamation process. If Condition 2.a
(I) (requiring both the washing and further refining to take place at BRZ's Sauget
facility) is not revised,
BRZ'sfacility will remain shuttered due to BRZ's inability to fmd
sufficient amounts
of feedstock at competitive prices to support ongoing refining. See In
re Big River Zinc, AS 06-4, p. 5. Additional analysis ofthe need for and benefits of
washing the EAF zinc oxide is provided in the Affidavit of George Obeldobel at Att. B.
5
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
f) Proposed Adjusted Standard. BRZ does not seek a change to the determination that the
initial reclamation is commodity-like and therefore not a solid waste. BRZ only requests
that the Board amend Condition 2.a
(l) of AS-99-3 to provide that BRZ is not limited to
conducting the complete refining process at its Sauget facility, but that BRZ may perform
washing
of the EAF zinc oxide (to remove inorganic salts), and then
either
(i) continue
the electrolytic refining process at
BRZ'sfacility as described in AS-99-3, (ii) sell the
washed zinc oxide to third parties for further refining,
or
(iii) return the washed zinc
oxide to the suppliers for sale to another refiner. The EAF zinc oxide would be destined
to undergo processing for further recovery
of an end product at either BRZ's facility or
another entity's facility.
BRZ proposes that Condition 2.a
(l) of AS-99-3 be revised as follows:
"2. the adjusted standard is subject to the following conditions:
a. The determination described in paragraph one ofthe order applies only
to zinc oxide material:
1. That is either to be processed through BRZ's electrolytic zinc
refinery in Sauget, St. Clair County, Illinois or that is washed at
BRZ'sfacility and will depart or has departed from BRZ's
facility
to undergo further processing and (l) is destined for or
has arrived at another BRZ facility,4 (2) is under a legally
binding contract with the supplier
of the EAF zinc oxide for
return to the supplier, or (3) has been acquired by another
entity under a legally binding contract for sale from BRZ."
4
8HZ facilities may include facilities owned by 8HZ's parent, ZineOx.
6
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
The remaining Conditions to AS-99-3 are unchanged. This amendment will allow
BRZ needed flexibility to restart washing operations at its Sauget facility.
BRZ's
proposed language for a revised condition is identical in substance to the language in the
approved adjusted standard this Board issued
in
In re
Horsehead Resource and
Development Company, Inc., (Feb. 17,2000), AS 00-2, discussed in paragraph i below.
g) Description
ofImpact on the Environment of Complying with the Regulation vs.
Complying with the Adjusted Standard.
BRZ'srequested revision to a Condition
of its existing adjusted standard does not change
the processes that will
talce place to complete the reclamation of EAF zinc oxide, but will
only change the location. As a result, there is no change in impact to the environment.
h) Justification
of Proposed Adjusted Standard. The justification for the solid waste
declassification, as described in detail
by the Board in its Opinion and Order AS-99-3, is
not affected by this request to amend a Condition. Amending the Condition will allow
BRZ needed flexibility in its operations. The flexibility will allow BRZ to reopen the
washing plant at its facility and work towards reopening the entire facility. As stated
above, the process
of reclamation will not change, only the location. See Affidavit of
George Obeldobel at Att. B.
i) Reasons the Board may Grant the Proposed Adjusted Standard. The reasons for granting
the adjusted standard are detailed in the Board's Opinion and Order at Att.
A.
Amending
Condition 2.a
(I) ofthe Board'sOrder will not change the Board'sfindings or analysis,
and the EAF zinc oxide will continue to be fully reclaimed.
The Board faced a similar factual scenario in
In re
Horsehead Resource and
Development Company, Inc., (Feb. 17,2000), AS 00-2 ("Horsehead"). The Board's
Opinion and Order is attached at Att.
C. The Board held, citing to BRZ's adjusted
7
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
standard, that zinc oxide treated with HTMR is co=odity-like and not a solid waste. In
that case, Horsehead sought an adjusted standard to conduct the HTMR process itself,
and then sell the HTMR-processed zinc oxide to third parties. The Board again analyzed
the "initial reclamation" process
ofHTMR under the criteria set forth in nO.131(c) and
found that the resultant crude zinc oxide ("CZO," which the Board found "virtually
identical" to the
EAF zinc oxide supplied to BRZ) was not a solid waste. Att. C, p. 13.
Both Horsehead
and BRZ were handling the same material- zinc oxide partially
reclaimed by HTMR. The Board noted that the only difference between
BRZ'spetition
for adjusted standard and Horsehead's petition was that BRZ petitioned to have EAF zinc
oxide declassified as
an
input
to its process; Horsehead sought to have it declassified as
an
output
of its production process. Att. C, p. 14. The Board granted Horsehead's
petition on the Condition that when the CZO departs Horsehead'sChicago facility it must
(i) be destined for another Horsehead facility, (ii) be under a legally binding contract for
sale from Horsehead to another entity, or (iii) have been acquired by another entity under
a legally binding contract for sale from Horsehead. Att. C, pp. 16-17. The Condition
would ensure that the initially reclaimed product be destined for further reclamation
of an
end product. Similarly, BRZ seeks the flexibility to have the washed EAF zinc oxide
leave its facility.
BRZ requests that the Board revise Condition 2.a (I) of its adjusted
standard to allow for the output
ofEAF zinc oxide (after it is washed) from its facility.
BRZ proposes that
it be subject to the same limitations as the Board imposed on
Horsehead to ensure that further reclamation occurs. BRZ proposes, in paragraph f above,
language for a revised condition that is identical in substance to the language in
Horsehead'sapproved adjusted standard.
8
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
j)
Hearing on the Petition. BRZ waives a hearing on the petition because BRZ's
amendment is limited to a change in a Condition and not a substantive finding ofthe
adjusted standard.
5
III.
Conclusion
For the reasons stated, BRZ requests the Board enter an Order amending
BRZ's existing
adjusted standard by expanding the locations at which further processing
of washed EAF zinc
oxide may occur.
WHEREFORE, Big River
linc requests that the Board grant this amendment to Condition 2.a
(1)
of its adjusted standard AS-99-3.
Respectfully submitted,
Big River
linc Corporation
Jennifer
T. Nijman
Nijrnan Franzetti LLP
10 S. LaSalle St, Suite 3600
Chicago, Illinois 60603
5
As reqUired by 35 III. Adm. Code 104.406(k) and (I), BRZ cites here in to relevant supporting documents and legal
authorities and
has provided required information as applicable to a change In condition.
9
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Petition for Adjusted Standard, by
electronically filiog with the Clerk and
by first class mail upon !EPA:
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James
R.
Thompson Center, Suite 11-500
Chicago,IL 60601-3218
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield,IL 62794-9276
Jennifer
T. Nijman
Nijman Fraozetti LLP
10 S. LaSalle Street, Suite 3600
Chicago,
II 60603
3122515255
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
ATTACHMENT A
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
AS 99-3
(Adjusted Standard - RCRA)
ILLINOIS POLLUTION CONTROL BOARD
April 15, 1999
IN THE MATTER OF:
)
)
PETITION OF BIG RIVER ZINC
)
CORPORATION FOR
AN ADJUSTED
)
STANDARD UNDER 35 ILL. ADM. CODE)
720.131(c)
)
LEE
R.
CUNNINGHAM AND RICHARD M. SAINES OF GARDNER, CARTON
&
DOUGLAS APPEARED ON BEHALF OF PETITIONER; and
CHRISTOPHER P. PERZAN APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by K.M. Hennessey):
Petitioner Big River Zinc Corporation
(BRZ) operates an electrolytic zinc refinery in
Sauget, St. Clair County, Illinois. BRZ uses various zinc-containing materials as feedstock for
its refinery. One
of the zinc-containing materials that BRZ would like to use is recovered
from dust emitted from electric arc furnaces used
to produce steel. This secondary zinc oxide
material would ordinarily be considered a "solid waste" and a "hazardous waste" under the
Resource Conservation and Recovery Act (RCRA),
42 U.S.C. §§ 6901
et seq.,
and
corresponding Illinois hazardous waste laws and regulations. BRZ would like
to use this
secondary zinc oxide material without becoming subject
to Illinois' hazardous waste
requirements.
To that end, BRZ has filed a petition for an adjusted standard under
35 Ill. Adm. Code
720.l31(c). Section 720.131(c) allows the Board
to determine that certain materials are not
solid wastes, and therefore not hazardous wastes,
if
they meet certain criteria. BRZ asserts
that zinc oxide material recovered from electric arc furnace dust (EAF dust) by a high
temperature metals recovery process meets these criteria. BRZ also proposes several
conditions on the adjusted standard. The Illinois Environmental Protection Agency (IEPA)
recommends that the Board grant the adjusted standard, subject
to certain conditions.
The Board finds that BRZ has established that zinc oxide material recovered from EAF
dust by a high temperature metals recovery process is not a solid waste. The Board therefore
grants
BRZ's petition for an adjusted standard, subject to the conditions set forth in the order
that follows this opinion.
PROCEDURAL HISTORY
On September 24, 1998, BRZ filed a petition for an adjusted standard, subject
to
conditions. On October 15, 1998, the Board accepted this matter for hearing and on
ATTACHMENT A
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
2
October 16. 1998. IEPA filed a response to the petition. In that response. IEPA recommended
that
the Board grant BRZ's request for an adjusted standard with conditions. subject to certain
additional conditions. On October
27. 1998. BRZ filed a reply in which it proposed new and
modified conditions on the adjusted standard. including the conditions that IEPA requested.
J
Hearing Officer John Knittle held a hearing on the adjusted standard petition on
December 17. 1998. BRZ presented one witness. whom the hearing officer found
to be
credible. BRZ also introduced four exhibits. each of which the hearing officer admitted.' At
hearing. BRZ proposed
to amend one of the conditions it had proposed for the adjusted
standard. Tr. at 5-6; Exh. 4. Counsel for IEPA stated at hearing that IEPA agreed
to all of
the conditions that BRZ had proposed both before and at hearing. Tr. at 24. IEPA offered no
testimony or exhibits. The parties chose not to file posthearing briefs.
LEGAL FRAMEWORK
The status of materials as "solid wastes"
is significant because under the laws and
regulations that Congress and the United States Environmental Protection Agency (USEPA)
have established. only those materials that are "solid wastes" can be regulated
as "hazardous
wastes" under RCRA and corresponding Illinois hazardous waste laws and regulations.
Accordingly. materials that are not solid wastes are not subject
to Illinois' hazardous waste
regulations. which impose various requirements
on persons who generate. treat. store. dispose,
recycle. or transport hazardous waste. See
35
m.
Adm. Code 722-726, 728.
Generally. a solid waste
is any discarded material. See 35lll. Adm. Code 721.102. A
solid waste is a hazardous waste
if it exhibits a "characteristic" of hazardous waste
(i.e..
it is
toxic. corrosive, ignitable. or reactive) or if it is "listed" as hazardous waste
(e.g..
it comes
from a specific type
of process. such as electroplating). See 35 lll. Adm. Code 721.103. 721,
Subparts C and D.
BRZ would like to reclaim zinc from zinc oxide material that has been recovered from
EAF dust without becoming subject
to Illinois' hazardous waste regulations. Exh. 3 at 2, 21.
BRZ asks the Board to determine that zinc oxide material recovered from EAF dust with a
high temperature metals recovery process. which
the Board will refer to as "EAF zinc oxide."
is not a
solid
waste. BRZ seeks this determination under 35 Ill. AdIn. Code 720.131 (e). That
provision establishes standards and criteria for
the Board to use
in
determining whether certain
materials are not solid wastes. See
35 Ill. Adm. Code 720.130(c). Section 720.131(c) reads
as follows:
J BRZ's petition. which was entered into evidence at hearing as an exhibit, is cited as "Exh. 3
at _." The parties treat BRZ's reply as part of the petition and the Board will consider it as if
it
was entered into evidence at hearing with the petition. However. for clarity. the Board cites
BRZ's reply
as "Reply at _." IEPA's response is cited as "Resp. at _. "
,
The transcript of the hearing is cited as "Tr. at _." Hearing exhibits are cited as "Exh. _."
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
3
The Board will determine that those materials that have been reclaimed but must
be reclaimed further before recovery is completed are not solid wastes
if.
after
initial reclamation. the resulting material
is commodity-like (even though it is
not yet a commercial product. and has
to be reclaimed further). This
determination will be based
on the following criteria:
1)
The degree of processing the material has undergone and the degree of
further processing that is required;
2)
The value of the material after it has been reclaimed;
3)
The degree to which the reclaimed material is like an analogous raw
material;
4)
The extent to which an end market for the reclaimed material is
guaranteed;
5)
The extent to which the reclaimed material is handled to minimize loss;
and
6)
Other relevant factors. 35
m.
Adm. Code 720.131 (c).
FINDINGS
OF FACT
In this section
of the opinion. the Board sets forth its findings of fact regarding
(1)
zinc. (2) BRZ's current operations. (3) EAF dust. (4) EAF zinc oxide. and (5) BRZ's
proposed operations.
Zinc
In
1997. the total world production and consumption of zinc was approximately 8.5
million tons. Zinc can be used to galvanize products; to produce brass; to create alloys used to
produce such items as door handles and carburetor parts; to create chemicals such as zinc
powder for alkaline batteries and zinc oxide;
to coat steel; and for various other uses. Exh. 3
at 3. Att. B at 5. The average annual growih in consumption of zinc in the western world was
2.4% from 1988 to 1997. Exh. 3. Att. Bat 1. The price of zinc is established by supply and
demand on the London Metals Exchange (LME). Exh. 3 at 3.
BRZ's Current Operations
BRZ's Products
BRZ operates an electrolytic zinc refinery
in Sauget. St. Clair County. Illinois. Exh. 3
at 1.7. BRZ currently produces approximately 105.000 tons of zinc per year. Exh. 3. Att. J
at 2.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
parts, and produce zinc oxide (e.g.
4
Exh. 3, AU. J at 2. BRZ
pound logs for large galvanizing lines. BRZ produces special high grade quality zinc
(99.995% zinc), which
is the most widely recognized standard for zinc. Depending on
customer specifications, BRZ also debases its special high grade zinc to produce alloys that
Exh. 3 at 19. BRZ has long-term end
markets for all of its products.
Au.
N.
BRZ's Process
BRZ recovers zinc from two types of materials, the first of which is zinc sulfide
concentrates that are mined. BRZ also recovers zinc from secondary zinc oxide material.
Secondary zinc oxide material is a by-product of other industries that use zinc, including steel
mills, brass mills, brass and bronze ingot factories, and galvanizers. The mined zinc sulfide
concentrates arrive as wet filter cake; the secondary zinc oxide material arrives as wet filter
cake or as dry material in "supersacks." Exh. 3 at 2,4,10-11,14,17,20, AU. J at 2.
In the first step of BRZ's process, BRZ may use an acid solution to remove magnesium
from the zinc sulfide concentrates to prepare them for further processing. Exh. 3 at 10-11.
Secondary zinc oxide material does not require this initial step. Exh. 3 at 10-11, 17-18, AU.
H,
J at 2-3.
BRZ then processes zinc sulfide concentrates and secondary zinc oxide material in a
fluld bed roaster. The roasting step removes sulfur from the feed material. Exh. 3 at 12, 19.
Att. J at 2. BRZ then leaches the roasted material to separate zinc and various other metals.
From the slurry that results, BRZ filters the solids, and puts the remaining solution through
four purification stages. The purification process yields a purified zinc sulfate solution from
which zinc is recovered through an electrolytic process. The electrolytic process yields zinc
cathodes that are of special high grade quality (99.995% pure zinc). BRZ then melts the
cathodes into one of six shapes for delivery to customers. Exh. 3 at 12-13, 19.
BP-Z's refining process produces a number of by-products, including sulfuric acid,
lead-silver concentrate, copper cement, copper-cobalt concentrate, cadmium oxide, and zinc
sulfate monohydrate.
BRZ has long-term end markets for these by-products. Exh. 3 at 12-13,
19-20.
3 In this opinion, when the Board refers to a percentage of a constituent in a material, it does
so
by weight.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
5
EAF Dust
EAF dust
is a source of secondary zinc oxide material. EAF dust is generated in
electric arc furnaces, which produce steel by heating steel scrap. These furnaces emit gases
that contain EAF dust.
Air pollution control equipment in these furnaces removes EAF dust
from
the gases. These furnaces generated approximately 900,000 tons of EAF dust in the
United States in 1997. Exh. 3 at
5, 13-14.
EAF dust is composed of approximately 20%
to 30% iron and 15% to 30% zinc.
It
also includes other constituents such as lead, cadmium, chloride, fluoride, aluminum, calcium,
potassium, magnesium, manganese, sodium, and silica. Because
of its high iron content and
other impurities, zinc cannot
be recovered directly from EAF dust in most,
if
not
all,
zinc
smelting
and refining operations. Exh. 3 at 5, 13-14.
In 1996, nearly 40% of
the EAF dust generated in the United States was disposed of in
landfills. Exh. 3 at 6.
It
costs approximately $80 per ton to dispose of EAF dust. Exh. 3 at
16.
EAF Zinc Oxide
High Temperature Metals Recovery
While zinc cannot be recovered directly from EAF dust in most zinc smelters
and
refineries, zinc oxide material recovered from EAF dust can be processed in zinc smelters and
refineries. Zinc oxide material can be recovered from EAF dust when the dust is put through
a high temperature metals recovery (HTMR) process. HTMR units include rotary Idlns, rotary
hearth furnaces, plasma furnaces, and electric furnaces. Exh. 3 at 6-7, 10, At!. F, H.
HTMR processing increases the levels of zinc, lead, and cadmium in EAF dust. These
changes are desirable in the zinc refining process. HTMR processing also lowers the levels of
constituents that are considered contaminants in
the zinc refining process
(e.g.,
iron, calcium,
magnesium, alumina). except for sodium, chloride, fluoride, and potassium. Exh. 3
at 10, 18,
Att. H.
In 1994, approximately 1.2 million tons of EAF dust per year was processed
worldwide, mostly
to produce zinc oxide material. Exh. 3 at 18, At!.
L.
EAF dust processing
is done in a variety
of HTMR units and the resulting zinc oxide material is sold primarily to
produce zinc, but also to produce zinc chemicals. Exh. 3 at 18, Att.
L.
Several facilities in
the United States produce or are capable of producing EAF zinc oxide. Exh. 3 at 6, 18, AtL
L,
M.. Markets for EAF zinc oxide exist in North America, Asia, and Europe. Exh. 3 at 19.
Once EAF dust has been through the HTMR process, tlle value of the resulting zinc oxide
material approaches the value of mined zinc sulfide concentrates (currently $250
to $300 per
ton). Exh. 3 at
8, 16-17, 21.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
6
BRZ wDuld like tD purchase EAF zinc Dxide. Tr. at 13; Exh. 3 at 1-2. 6. BRZ intends
tD use the material as feedstDck fDr its zinc refinery. Exh. 3 at 1, 8. EAF zinc Dxide can
substitute
fDr and supplement mined zinc sulfide CDncentrates. Exh. 3 at 2, 14. After washing
EAF zinc
Dxide (described below), BRZ plans tD use the material in the same manner it uses
the mined zinc sulfate CDncentrates. The products and by-products from EAF zinc oxide
would
be essentially indistinguishable from thDse Df the mined materials. Exh. 3 at 16, 19,
21.
Not all zinc oxide material recovered frDm the HTMR processing Df EAF dust wDuld
be suitable feed fDr BRZ's refinery. Exh 3. at 7. To be economical for BRZ, EAF zinc oxide
must meet the following specifications
(on average):
>
50% zinc;
<20% lead;
<
5% iron;
< 4%
tDtal gangue materials (silica plus calcium plus magnesium); and
< 2%
cWDride or capable of being water washed
to
achieve < 2% cWoride.
Exh.3at7.
For BRZ to be able to wash EAF zinc oxide tD < 2% chloride, the feed should arrive at BRZ's
facility with < 13% chloride. Reply at 5-6, Att.
O. In addition, BRZ could accept EAF zinc
Dxide produced during the three-month start-up period Df an HTMR unit with up to 7% iron.
Tr. at 5-6; Exh.
4.
AmeriSteeI, Inc. 's HTMR Process
One
Df the cDmpanies that processes EAF dust with an HTMR unit is AmeriSteeI, Inc.
(AmeriSteel). AmeriSteel is a steel manufacturer located in Jackson, Tennessee. AmeriSteel's
HTMR unit
is a rotary hearth furnace. Exh. 3 at 8-9.
TD process EAF dust, AmeriSteel first mixes the dust with a SDurce of carbon
(commercial grade coal or coke purchased
Dn the Dpen market) to form briquettes. The carbon
acts
as a reducing agent. AmeriSteel places the briquettes in the rotary hearth furnace tD
recover bDth zinc oxide material and an iron material. Materials that volatilize at lDwer
temperatures vaporize and leave the furnace in a gas stream. These materials then Dxidize,
form a sDlid, and are collected in an air pollutiDn control device called a baghouse. This
material cDllected in the baghouse is EAF zinc
Dxide. Tr. at 18-19; Exh. 3 at 9-10; Reply at
3, Att. P. Once AmeriSteel achieves fuil capacity,
it
is expected to produce approximately
9,600 tons per year
Df EAF zinc oxide from the 24,000 tons of EAF dust that Ameristeel
generates annuaily. Exh. 3 at 10.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
7
AmeriSteel's EAF Zinc Oxide
AmeriSteel's
HTMR process increases the zinc content of EAF dust from 20-25% to
59.5%, increases the lead content from 3% to 7.5%, increases the cadmium content from
0.05%
to 0.1%, and decreases the iron content from 19-24% to 0.1%. AmeriSteel's HTMR
process lowers
the levels of constituents that are considered contaminants in BRZ's refining
process, except for sodium, chloride, fluoride,
and potassium. Exh. 3 at 10, 18, Art. H,
K.
BRZ has determined that. except for the chloride level of the material, AmeriSteel's
EAF zinc oxide
is an ideal feed for its zinc refinery. Exh. 3 at 8. Ameristeel's EAF zinc
oxide is chemically similar
to mined zinc oxide and zinc sulfide concentrates:
Constituent
Mined Concentrates
AmeriSteel's EAF
Zinc Oxide
Zinc Oxide
Zinc Sulfide
% zinc
54
59.1
59.5
% lead
4.9
1.2
7.5
% cadmium
0.38
0.5
0.1
% iron
2.5
1.5
0.1
% copper
0.02
0.3
0.1
% sulfur
<1
31
<1
% arsenic
.7
<0.02
< 0.01
% calcium
2.4
1
0.05
% silica
14.8
0.8
0.02
% magnesium
0.6
0.4
0.01
% alumina
2.7
0.1
0.02
% sodium
N/A
<0.02
3
% chloride
0.07
< 0.1
8
% fluoride
0.03
0.05
0.15
Exh.
3
at 14, 17, Art.
D,
H,
K.
With the exception of cWoride and fluoride, AmeriSteel's
EAF zinc oxide also meets typical zinc refiner specifications for zinc sulfide concentrate blends
and falls within
the range of secondary feed specifications that zinc refiners have established.
EXt1. 3,
AU. F, H,
K.
EAF zinc oxide produced by AmeriSteel and others has levels of zinc comparable to
that of mined concentrates. Exh. 3 at 17, AU. D,
H. K.
If used in BRZ's refining process,
EAF zinc oxide would have chemical advantages
and disadvantages compared to mined
concentrates. The primary advantages
of EAF zinc oxide are that it is higher in lead than
mined concentrates and lower
in
sulfur than mined zinc sulfide concentrates. AmeriSteel's
EAF zinc oxide has the additional advantage of being lower
in
iron than mined concentrates.
Exh. 3 at 14, 17-18, Att.
D, H, ] at 3,
K.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
8
EAF zinc oxide has two primary disadvantages when compared to mined concentrates.
First, EAF
zinc oxide has higher levels of sodium, chloride, fluoride, and potassium, which
are present as inorganic salts. While EAF zinc oxide can be introduced directly to BRZ's
roaster, inorganic salts
in the material could corrode BRZ's refining equipment
if
their levels
are not first reduced. However, as discussed below, BRZ plans to wash EAF zinc oxide to
reduce its levels of inorganic salts. Tr. at 13-17; Exh. 3 at 11,14,17-18, Att. D,
H.
J at 3,
K.
The second primary disadvantage of EAF zinc oxide is that
it
may be in the form of
dry dust rather than wet filter cake. Exh. 3 at 14. The dry dust is more difficult to handle.
Exh. 3 at 14, Att. J at 3.
As
discussed below, however, BRZ's washing process will turn this
dry dust into wet filter call:e that BRZ can then put through its refinery equipment.
BRZ's Proposed Operations
EAF zinc
oxide is expected to arrive at BRZ's Sauget facility in the form of dry dust.
BRZ plans to keep the dry EAF zinc oxide totally enclosed from unloading until washing.
BRZ has designed a material handiing/wash system to handle that material. Exh. 3 at 14, 20,
Att. J at 3-4. On September 22, 1998, IEPA granted BRZ an air pollution control permit to
construct the system. The construction permit limits emissions of particulate matter from the
handling/wash facility to 1.68 tons per year. Exh. 2; Exh. 3, Att. J.
Dry secondary zinc oxide material is expected to arrive at BRZ's Sauget facility in bulk
or in supersacks. Approximately 90% of this material is expected to arrive by rail. BRZ
plans to unload railcars of the bulk material through ventilated air slides to silos equipped with
High-Efficiency Particulate
Air
(HEPA) filters. Ultimately, BRZ plans to add four silos, each
with a capacity of 1. 5 railcars. BRZ proposes to locate the silos on concrete or asphalt pads
that BRZ could wash into a sump. BRZ plans to pump the sump contents into the washing
process. Exh. 3 at 15, Att. J at 4.
Supersacks of the material are expected to arrive by boxcar or truck. BRZ plans
to
leave supersacks in boxcars for intermediate storage. The boxcars would be unloaded at a
covered loading
dock that is to be attached to the washing plant. Supersacks that arrive by
truck would be stored inside the washing plant. BP2 would be able to store approximately
150 tons of that material inside the washing plant. Exh. 3 at 15, Att. J at 4.
BRZ plans to use a truck to move the supersacks to a supersack discharge station to
empty them. BRZ proposes to maintain the discharge station under negative pressure to avoid
fUgitive emissions. BRZ would vent the discharge station through a baghouse to collect any
secondary zinc oxide material. Exh. 3 at 15, Att. J at 5.
BRZ proposes to convey the secondary zinc oxide material (from the silos and the
supersack discharge station) in an enclosed, ventilated conveyor (or by pneumatic conveyor) to
a tank where BRZ would
mix
the material with water. BRZ proposes to pump the resulting
slurry into a washing tank. BRZ plans to add soda ash to the washing tank to raise the pH to a
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
9
level that would not dissolve zinc and other heavy metals but would dissolve the inorganic salts
that could corrode BRZ's refining equipment. Exh. 3 at
11, 15-16, AU. J at 5.
After washing, BRZ proposes to create wet fIlter cake by removing water from the
slurry with a pressure filter. BRZ plans to transport the
fIlter cake by enclosed conveyor belts
to the concentrate storage building. In the concentrate storage building, BRZ would blend the
washed secondary zinc oxide material with zinc sulfide concentrates to create feed for the
roaster, after which the material would go through the refining process outlined on page four
of this opinion. Exh. 3 at 15-16, Au. J at 5.
Some producers of EAF zinc oxide may wash the material before delivering
it
to BRZ.
In
that case, the material would arrive at BRZ's Sauget facility as wet fIlter cake, which BRZ
can handle
in the same manner that
it
currently handles filter cake feed material. Tr. at 14-15;
Exh. 3 at 14, 20. Typically, the largest suppliers
of secondary zinc oxide material either wash
the material at their facilities
to produce wet filter cake or ship the material as dry dust in
pneumatic trailers. Smaller suppliers typically package the secondary zinc oxide material in
supersacks. Exh. 3,
AU. J at 4.
BRZ's Proposed Contract With AmeriSteel
BRZ and AmeriSteel have reached agreement
on contract terms under which BRZ plans
to buy AmeriSteel's full production of EAF zinc oxide. Tr. at 17-18; Exh. 3 at 8, Au. G at 1.
AmeriSteel's
full
monthly production is estimated to be approximately 800 tons. Exh. 3, AU.
G. Under the contract, the price of EAF zinc oxide is based on a percentage of its zinc
content and the LME price for zinc. Exh. 3.
AU. Gat 2. Because EAF zinc oxide can
substitute for and supplement BRZ's mined zinc sulfide concentrates, BRZ would pay
AmeriSteel a high percentage
of what
it
would normally pay for mined zinc sulfide
concentrates. Exh. 3 at 8, 17. BRZ is willing
to pay a price for EAF zinc oxide that far
exceeds its cost
of freight. Tr. at 13; Exh. 3 at 17.
The AmeriSteel contract would be effective upon execution and continue until
December
31 of the year following the year in which BRZ begins commercial operation of its
washing plant. Thereafter, the contract would continue from year
to
year "with annual
negotiation of tlle terms to reflect current market conditions." Exh. 3, Att. G at 1-2.
As
proposed, either party could cancel the contract by giving the other party 180 days notice of
cancellation. Exh 3. Au. Gat 2. AmeriSteel has indicated that it
will
not execute the contract
"until
all
regulatory issues have been resolved, including this adjusted standard proceeding."
Tr. at 17-18; Exh. 3 at 9.
DISCUSSION
In this section, the Board first discusses whether EAF zinc oxide is a solid waste. The
Board then discusses whether the provision under which BRZ seeks tins determination
is
available in this case. Next, the Board evaluates each of the factors upon which this
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
10
determination is based. Lastly, the Board discusses the conditions that apply to this
determination.
Status of EAF Zinc Oxide
Section 720. 13l(c) allows
the Board to determine that certain materials that would
otherwise
be solid wastes are not solid wastes if certain conditions are met. Therefore, the
Board initially must determine that EAF zinc oxide is a solid waste; if it is not, BRZ has no
need for an adjusted standard.
A "solid waste" is any discarded material not otherwise excluded in
the regulations.
See
35 Ill. Adm. Code 721.102(a)(I). One of the several ways that a material may be
considered "discarded" is by being "recycled" in a manner specified in Section 721. 102
(c) of
the regulations. See
35
Ill.
Adm. Code 721.102(a)(2). Section 721.102(c)(3) specifies, in
part, that
if a "listed sludge" is recycled by being "reclaimed,"
it
is a solid waste. See 35 Ill.
Adm. Code 721.102 (c)(3)
and 721.Appendix Z.'
The Board finds that EAF zinc oxide fits witllin this category. First, EAF zinc oxide
is considered a "listed sludge." A "sludge" includes a "solid ... waste generated from [an]
... air pollution controlfacility ...." 35
Ill.
Adm. Code 721.101 (c)(2); 35 Ill. Adm.
Code 720.110. EAF dust, from which
EAF zinc oxide is recovered, is generated from an air
pollution control facility
and is therefore a sludge. Furthermore, EAF dust is "listed"
because it
is listed as a hazardous waste from a specific source under 35
m.
Adm. Code
721.132 (listing emission control dust/sludge from the primary production of steel in electric
furnaces
as hazardous waste K061).
While this listing applies
to EAF dust rather than EAF zinc oxide, Sections
721.103(c)(2)(A) and
(d) (2) further provide that a material derived from tlle treatment of a
listed hazardous waste is itself the listed hazardous waste. See
35 Ill. Adm. Code
721.103(c)(2)(A) and (d)(2). USEPA, which promulgated the federal regulations upon which
these regulations are based, explains
that" all of the residues from treating the original listed
wastes are likewise considered
to be the listed waste ...." 54 Fed. Reg. 1056, 1063
Gan. 11, 1989). Therefore, EAF zinc oxide is also considered a listed sludge.'
Second, the Board finds that EAF dust and
the resulting EAF zinc oxide are being
recycled by reclamation. A material
is "reclaimed" if it is:
, For a detailed discussion of how materials become solid wastes, please refer to Petition of
Chemetco, Inc. for Adjusted Standard From
35
m.
Adm. Code 720. 13l(a) and (cl (March 19,
1998), AS 97-2, slip op. at 11-12.
, Compare Petition
of Recycle Technologies, Inc. for an Adjusted Standard Under 35 Ill.
Adm. Code 720. 13I(c) (September
3,1998), AS 97-9, slip op. at 7-8 (if used antifreeze
(spent material that is not a listed hazardous waste)
is acharacteristic hazardous waste, the
initially but yet to be completely reclaimed material derived from that used antifreeze is a
hazardous waste only if
it exhibits a characteristic of hazardous waste).
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
11
processed to recover a usable product, or if it is regenerated. Examples are
recovery of lead values from spent batteries and regeneration of spent solvents.
35 ill. Adm. Code 721.10l(c)(4).
When USEPA promulgated the federal regulation upon which this regulation is based, it
explained that materials are reclaimed
if
"material values . . . are recovered as an end-product
of a process
(as in metal recovery from secondary materials)" or
if
they are "processed to
remove contaminants in a way that restores them to their usable original condition." 50 Fed.
Reg. 614,
633 Gan. 4, 1985). The Board finds that EAF dust that is processed by HTMR into
ziJJc .oxide
m~terial
is
b~in!S
"reclairrJed.."
TheBoatd~lsofinds.
thatEAF zinc oxide thaUs
washecltoremoyecolltaminants (inorganic salts)
isoeing "reclaimed. " See 35 ill. Adm. Code
721.10l(c)(4). Because EAF zinc oxide
is a listed sludge that is recycled by being reclaimed,
it is a solid waste.
Availability of Section 720.131
(c)
Generally, a waste being reclaimed remains a waste until reclamation is completed.
See
50 Fed. Reg. 614, 620, 633-634; 655 Gan. 4, 1985). Section 720. 131(c) provides an
exception to this principle for material that is initially reclaimed, but that requires further
reclaiming before recovery is completed.
In discussing the federal counterpart
to Section 720.131 (c), USEPA explains that the
provision is designed
to address those situations in which "the initial reclamation step is so
substantial that the resulting material is more commodity-like than waste-like even though no
end-product has been recovered." 50 Fed. Reg. 614, 655 Gan. 4, 1985).
The Board
finds that EAF dust that has been processed in an HTMR unit has been
initially but not fully reclaimed.
HTMR processing increases the eventual recovery of zinc,
lead, and cadmium values from EAF dust. HTMR processing also decreases the levels of
materials that are considered contaminants
in BRZ's refining process, such as iron, calcium,
magnesium, and alumina. However, EAF zinc oxide
requires further processing to recover
end products. First, BRZ must wash the EAF
zinc oxide to remove inorganic salts before it
can be roasted in BRZ's roaster. BRZ then must put the washed material through its refining
process,
dUring which BRZ would roast, leach, purify, and further recover the material. The
refining process recovers various metals, including a special high grade quality zinc.
The Board finds
that Section 720.131 (c) is available in this case because once. EAF dust
has been processed
in an HTMR unit to create EAF zinc oxide, it has been initially but not
completely reclaimed.
Section 720.131
(c) Factors
The Board must determine whether EAF zinc oxide is commodity-like based
on the
Section 720.131 (c) factors set forlli on page three of this opinion. The Board finds that EAF
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
12
zinc oxide is commodity-like based on these factors. The Board addresses these factors in
turn.
The Degree
of Processing the Material has Undergone and the Degree of Further Processing
That
is Required
When explaining the federal counterpart
to Section 720. 131 (c). USEPA stated, "the
more substantial
the initial processing, the more likely the resulting material is to be
commodity-like." 50 Fed. Reg. 614, 655 (Jan. 4, 1985). Here, the initial processing is
HTMR. HTMR
is a physical and chemical process that is performed in certain equipment,
such as a rotary
kiln,
rotary hearth furnace, plasma furnace, or electric furnace.
HTMR processing
of EAF dust can more than double the levels of zinc in EAF dust,
and it can substantially increase its levels of lead
and cadmium. The increased concentrations
of these metals are desirable for BRZ's refining process. HTMR processing also reduces
the
levels of numerous undesirable constituents in EAF dust. Without HTMR processing, EAF
dust is not suitable
to directly produce zinc in most, if not all, zinc smelting and refining
operations. HTMR processing increases
the value of EAF dust from a negative $80 per ton
(its cost of disposal) to a value that approaches the value of mined zinc sulfide concentrates
(currently $250
to $300 per ton).
After undergoing HTMR processing, EAF dust can
be refined directly. However, BRZ
proposes to wash EAF zinc oxide to reduce the inorganic salts that could corrode BRZ's
refining equipment. After washing the material, BRZ plans
to roast, leach, purify, and further
process the material. This refining process recovers various metals, including a special high
grade quality zinc.
BRZ
and IEPAlTlaintain thatEAF zinc oxide wiUbe fully reclaimed after the wash,
i.e.,
that the wash alone constitutes all of the "further processing thatis required." BRZ and
IEPA"ievythe\iVashed
EAFzinc. oxide as. a product,not a waste, and thus do not view the
subsequent refining as relevant to this factor. Exh. 3at 13-16; Resp. at 3-4. In support of its
position, BRZ introduced a letter from
the State of Tennessee Departroent of Environment and
Conservation that indicates that secondary zinc oxide material recovered by HTMR processing
is fully reclaimed without any washing. See Exh.
3, Att. A. The Board notes, however, that
USEPA guidance indicates that putting secondary zinc oxide material derived from
K061
through an electrolytic zinc refining process constitutes further reclamation under RCRA. See
RCRA Permit Policy Compendium, 9444.1994
(09) (December 19, 1994 letter to Paul R.
DiBella from David Bussard, Director, Characterization and Assessment Division, Office of
Solid Waste and Emergency Response, USEPA). This USEPA guidance suggests that the
subsequent refining
is relevant to this factor.
The Board finds that even
if
the subsequent refining is relevant, the HTtviR processing
is substantial, both in terms
of the process itself and its effect on EAF dust. The Board
therefore finds that this factor supports BRZ's claim that EAF zinc mdde
is commodity-like.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
13
The Value of the Material After
It
Has Been Reclaimed
USEPA states
that" the more valuable a material is after initial processing. the more
likely!t is
to be commodity-like.." 50 Fed. Reg. 614. 655 (Jan. 4. 1985). As noted above,
once EAF dust has been through the HTMR process, the value
of the resulting secondary zinc
oxide material approaches the value
of mined zinc sulfide concentrates. BRZ and AmeriSteel
have reached agreement
on contract terms and the price of EAF zinc oxide is to be based on a
certain percentage
of the zinc content of the material and the LME price for zinc. BRZ would
pay AmeriSteel a high percentage
of what BRZ would normally pay for mined zinc sulfide
concentrates. BRZ
is prepared to pay a price for EAF zinc oxide that far exceeds its cost of
freight.
The Board
fInds that EAF zinc oxide has Significant value.
The Degree To Which the Reclaimed Material
is Like an Analogous Raw Material
According
to USEPA, "[i]f the initially-reclaimed material can substitute for a virgin
material, for instance as a feedstock
to a primary process. it is more likely to be commodity-
like." 50 Fed. Reg.
614,655 (Jan. 4, 1985). EAF zinc oxide can substitute for zinc suifide
concentrates from mines. While not identical,
the two materials are chemically similar. Both
materials typically would require some form
of contaminant removal before BRZ would
introduce them
to its roaster
(i.
e.. BRZ processes mined concentrates with an acid solution to
remove magnesium; BRZ proposes to wash EAF zinc oxide with a mixture of water and soda
ash
to reduce levels of inorganic salts). After the wash, BRZ plans to use EAF zinc oxide
fJlter cake in the same manner it uses the fJlter cake of mined concentrates. The products and
by-products from EAF zinc oxide would be nearly identical
to those of the mined materials.
Asidefr(Jm its chloride
aiId fIuoride levels. AmeriSteel'sEAF zinc oxide meets the
specifications
of a typical zinc refiner for zinc sulfide concentrate blends.
The
Board flndsthatEAF zinc oxide is very silnilar to mined zinc sulfidecollcelltrates
and
can be substituted for the mined concentrates.
The Extent To Which an End Market for the Reclaimed Material is Guaranteed
In discussing this factor. USEPA states:
If.the [petitipnerl
can show that there is an existing and guaranteed end market
forthejnitially-r!:c;laimed Inaterial. (for instance, .value. traditional usage or
contractual arrangements), the material is more likely
to be commodity-like. 50
Fed. Reg. 614, 655 (Jan. 4. 1985).
In thiS case, the evidence established that EAF zinc oxide is sold primarily to produce
zinc, but also
to produce zinc chemicals. Several facilities in the United States produce or are
capable
of producing EAF zinc oxide. There are markets for EAF zinc oxide in North
America, Asia, and Europe.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
14
BRZ's contract with AmeriSteel would provide another end market for the EAF zinc
oxide that AmeriSteel produces, ArneriSteel's EAF zinc oxide meets specifications necessary
for BRZ
to economically process the material. With the exception of chloride and fluoride,
ArneriSteel's EAF zinc oxide also meets typical zinc refiner specifications for zinc sulfide
concentrate blends and falls within the range of secondary feed specifications that zinc refiners
have established. BRZ also established that there are end markets for its products and
by-
products. These factors corroborate that a market for feed material exists.
The Board finds that there
is an end market for EAF zinc oxide.
The Extent To Which the Reclaimed Material is Handled
to Minimize Loss
USEPA states that
the "more carefully a material
is
handled, the more it is commodity-
like."
50 Fed. Reg. 614, 655 (Jan. 4, 1985). Typical!y,the]argestsuppliers ofsecondary
Zinc Oxide material eitherwash itthetnselvesand deliveritas wet filtercalce (which BRZ can
handle
as it currently handles filter cake feed material) or ship the material as dry dust in
pneumatic railcars. Smaller suppliers typically package the secondary zinc oxide material in
supersacks.
BRZ proposes
to handle dry secondary zinc oxide material, which is expected to arrive
in bulk or in supersacks, in a totally enclosed facility. Railcars of the bulk material are to be
unloaded through ventilated air slides to silos with HEPA filters. The silos are to be on
concrete or asphalt pads with sumps to transfer any spillage to the washing process.
Supersacks
of the material are to be stored in enclosed areas and emptied under negative
pressure in a discharge station with
air fllters. IEPA issued an air pollution control
construction permit that limits emissions
of particulate matter from the handling/wash facility
to 1. 68 tons per year.
The Board also notes that producers
of EAF zinc oxide and BRZ have financial
incentives not
to lose the material: if producers lose the material, they have less to sell to
BRZ; if BRZ loses the material, it has less feedstock for its refinery.
The Board finds that EAF zinc oxide will
be handled to minimize loss.
Other Relevant Factors
The Board
will
not consider any additional factors based on this record. When
discussing Section 720.131
(c) (6), BRZ states that the grant of an adjusted standard will
encourage the recycling
of EAF dust and decrease the amount of the material that is landfilled.
Exh. 3 at 21; Reply at 3. While
the Board encourages recycling, the Board may consider
"other relevant factors" only
to the extent that they are relevant to whether EAF zinc oxide is
commodity-like. BRZ has not established that an increase in EAF dust recycling is relevant to
that question.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
IS
Board Determination
The Board finds that BRZ has established that EAF zinc oxide
is commodity-like.
Accordingly, the Board determines that EAF zinc oxide is not a solid waste.
Conditions on the Adjusted Standard
The Board will first set forth the conditions that BRZ proposes on the acljusted
standard, and then set forth
the Board's findings on those conditions.
BRZ's Proposed Conditions
BRZ proposes
the following conditions on the adjusted standard, which it amended to
reflect the conditions
that IEPA requested:
a.
The material accepted shall consist
of zinc oxide reclaimed from EAF
dust (K061) using an HTMR process;
b.
The material accepted shall meet
the following specifications as monthly
averages [:]
(1)
>
50% zinc;
(2)
<
20% lead;
(3)
<
5% iron;
(4)
<
4% total gangue materials (silica plus calcium plus
magnesium); and
(5)
<
13% chloride; provided, however, that the material accepted
may contain up to 7% iron for a period of up to three months
during the start-up
of the process producing the materials;
c.
BRZ shall maintain records which document the sources of the reclaimed
zinc oxide and which are adequate
to demonstrate that the materials
accepted
meet the specifications set forth in Condition b, above; and
d.
BRZ shall maintain the records required under Condition c, above, for a
period
of three years and shall make such records available for
inspection and copying at any reasonable time during normal business
hours
upon request by Illinois EPA.
Tr. at 5-6; Exh. 4; Reply at
6.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
16
BRZ proposes to "take representative samples from the shipments of reclaimed zinc
oxide ... and composite them on a monthly basis." Reply at 5. BRZ would analyze the
monthly composites for zinc, lead, iron, chloride, silica, calcium, and magnesium to
determine compliance with its proposed specifications.
Id.
BRZ maintains that it should be
able to "accept the infrequent individual shipment which exceeds these specifications if the
normal production of the supplier meets specifications and those shipments can be blended
with other shipments such that the blended materials meet the specifications."
Id.
at 4. IEPA
has agreed to all of these proposed conditions. Tr. at 24.
Board Findings
BRZ's proposed conditions
(b) and (cJ, and the manner in which BRZ proposes to
comply with these conditions, raise a number of questions. Initially, it is unclear how BRZ
would composite samples. For example, it is unclear whether a composite of samples from
each shipment would be tested individually or whether samples from multiple shipments would
be composited for testing.
It
is also unclear whether samples of shipments from different
producers
would be composited or whether separate composites would be tested for each
producer.
In
addition, it does not appear that BRZ would keep shipments of EAF zinc oxide
segregated and unprocessed while it awaits test results. Accordingly, if a composite sample
exceeds the proposed specifications, it is unclear how BRZ could identifY the shipment in
order to blend it "such that the blended materials meet the specifications."
In
addition, by the
time BRZ receives test results on a composite sample, BRZ may already have blended the
material with other feed material and, in fact, may already have refined the material.
It
is also unclear how BRZ ever could violate these conditions of the adjusted standard
as BRZ interprets them.
If
a test shows that material greatly exceeds the specifications, BRZ
could comply by simply mixing portions of that material in piecemeal fashion with compliant
materials until
all of the noncompliant material is used.
It
is also unclear whether BRZ would
have to test the blend to confirm compliance.
These proposed conditions also raise environmental and regulatory concerns. First, if
an adjusted standard is granted, RCRA regulations would not apply to the materials during
their shipment
to BRZ, and during their storage and processing at BRZ.
If
BRZ could blend
noncompliant material
(e.g.,
material that exceeds the lead limit) until the blend met the
specifications, transporters would be able to transport in Illinois (and BRZ would be able to
handle and store) material that exceeds the specifications without being subject
to
illinois'
hazardous waste regulations. Likewise,
an illinois producer of EAF zinc oxide with material
intended
to be shipped to BRZ that exceeds the specifications could handle and store that
material without being subject
to Illinois' hazardous waste regulations.
Second,
the specifications on the contents of EAF zinc oxide relate directly to BRZ's
ability
to economically use the material. The failure of the material to meet the specifications
calls into question
the degree of proceSSing thatthe HTMR unit provided, the value of the
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
17
material. the degree to which the material is like mined zinc sulfide concentrates, and the
extent
to which there is an end market for the material. Thus, to the extent that material fails
to meet these specifications, the Board would be less likely to find that the material is
commodity-like under Section 720.131(c).
In order
to protect the environment and to ensure the commodity-like character of EAF
zinc oxide that BRZ accepts for processing, the Board will limit the applicability
of this
adjusted standard to
EAF zinc oxide that meets the specifications. Representative samples of
each shipment
of EAF zinc oxide must be collected, composited, and tested in accordance with
generally accepted practices, such as those specified in "Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,"
EPA Publication No. SW-846 (Third Edition).
In addition, the
Board's determination applies only to EAF zinc oxide to be processed
through BRZ's electrolytic zinc refinery in Sauget, Illinois. BRZ cannot accept the material
under the adjusted
standard for a different use or for processing at a different facility.
Of course, the Board is not determining the status of EAF zinc oxide intended for BRZ
when that material is outside ofIllinois. The Board's determination applies only to
EAF zinc
oxide when it is
in Illinois.
If
EAF zinc oxide is produced outside of illinois, the composite
sampling
of each shipment must meet the specifications before the shipment to BRZ enters
Illinois.
In addition, the
Board's determination applies only to EAF zinc oxide that has arrived
at BRZ's Sauget facility
or that is under a legally binding contract for sale to BRZ. Without
this requirement, an unscrupulous generator of EAF zinc oxide could accumulate the material
at its facility and seek to evade Illinois' hazardous waste regulations by claiming that it plans
to
sell the material to BRZ.
BRZ has several options
if it objects to the conditions that the Board has placed on this
adjusted standard. First. under the Board's procedural rules, BRZ may move the Board to
reconsider the conditions that the Board has placed on this adjusted standard. Second, BRZ
may appeal the Board's adjusted standard to the lliinois Appellate Court. Third, BRZ may
choose
to consider EAF zinc oxide a solid waste in lieu of accepting the material under the
conditions
of the adjusted standard.
CONCLUSION
The Board finds that BRZ has established that zinc oxide material produced by
subjecting EAF dust to
an HTMR process is commodity-like. Accordingly, the Board finds
that EAF zinc oxide is
not a solid waste and grants BRZ's petition under Section 720.131(c)
for an adjusted standard, subject
to the conditions set forth in this order.
TheBoardemplwsizes that thisdeterrnination applies only to EAF zinc oxide to be
process_edthJ-9llgh.
·BRZ;.~_ekctrol.xtiUinc
.refineIY3(LSa1,lgeJ.,St._ClaiL.c~O\!!lty,
That EAF
zinc oxide also
must
meet certam specifications. In addition, this determination applies only to
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
18
EAF zinc oxide when it is in Illinois and either at the Sauget facility or under a legally binding
contract for sale
to BRZ.
This opinion constitutes the Board's findings of fact and conclusions of law in this
matter.
ORDER
1.
The Board finds that zinc oxide material produced by subjecting electric arc
furnace (EAF) dust from the primary production
of steel (K061 under 35 Ill.
Adm. Code 721.132)
to a high temperature metals recovery (HTMR) process is
not a solid waste and grants Big River Zinc Corporation (BRZ) an adjusted
standard
under 35 Ill. Adm. Code 720.131 (c).
2.
The adjusted standard is subject to the following conditions:
a.
The determination described in paragraph one of this order applies only
to zinc oxide material:
(1)
that is to be processed through BRZ's electrolytic zinc refinery in
Sauget,
St Clair County, Illinois;
(2)
thaHs in Illinois;
(3)
that has arrived at BRZ's Sauget, St Clair County, Illinois
facility
or that is under a legally binding contract for sale to BRZ;
and
(4)
that meets the following specifications by weight:
(a)
>
50% zinc;
(b)
<
20% lead;
(c)
<
5% iron (or
<
7% iron in material produced by an
HTMR unit during the first three months that the HTMR
unit produces zinc oxide material from EAF dust from the
primary production
of steel (K061 under 35 Ill. Adm.
Code 721.132));
(d)
<
4% total gangue materials (silica plus calcium plus
magnesium);
and
(e)
<
13% chloride;
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
19
b.
BRZ must maintain records that document the sources of
all
zinc oxide
material that BRZ accepts under this adjusted standard;
c.
BRZ must maintain records that demonstrate that each shipment of zinc
oxide material that BRZ accepts under this adjusted standard meets
the
specifications set forth in paragraph 2(a) (4) of this order; for this
demonstration, representative samples of each shipment of zinc oxide
material must be collected, composited, and tested in accordance with
generally accepted practices, such
as those specified in "Test Methods
for Evaluating Solid Waste, Physical/Chemical Methods," EPA
Publication No. SW-846 (Third Edition); and
d.
BRZ must maintain the records required under paragraphs
2(b) and 2(c)
of this order for a period of three years and must make such records
available for inspection and copying at any reasonable time during
normal business hours upon the llIinois Environmental Protection
Agency's request.
IT
IS SO ORDERED.
Section
41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal
of fmal Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See
172
m.
2d
R. 335; see also 35 ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk
of the illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted
on the 15th day of April 1999 by a vote of 7-0.
~f/;;"'"
_.,' (1
~r.1
/1
1
/ /....
J"~~
./~';J,r..,>
Ah.....
~~-:-
....
(/
.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
ATTACHMENT B
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETmON OF BIG RIVER ZINC
CORPORATION FOR AN ADJUSTED
STANDARD UNDER 35 ILL. ADM. CODE
no.
131(c)
AS 08
(Adjusted Standard - RCRA)
AFFIDAVIT OF GEORGE OBELDOBEL
I, George
Obeldobe~
being first duly sworn on oath, depose and state as follows:
1. I am over the age of 18 years and am a resident of Chesterfield, Missouri.
2. The information
in this Affidavit is based on my personal knowledge or beliefin my
capacity as President and
ChiefExecutive Officer ofBig River Zinc Corporation ("BRZ"
or the "Facility") in Sauget, llIinois, and I would testify to such matters if called as a
witness.
3.
BRZ is an electrolytic zinc refinery that has used the electrowinning process to recover
zinc from ore concentrates for more than
65 years. BRZ accepted EAF zinc oxide as
feedstock from suppliers/sources for washing and further refining at its Facility.
4.
Due to the inability to locate sufficient amounts offeedstock at competitive prices,
including EAF zinc oxide,
BRZ ceased all process operations and laid-off or terminated
all but about
19 employees at its Facility effective June 1, 2006.
5. BRZ has been exploring opportunities to reopen certain portions ofits Facility with a
goal towards reopening the entire Facility in
the future as economically justified.
6. Specifically,
BRZ seeks to reopen its existing washing plant in June 2008. It plans to
wash the EAF zinc oxide material it receives from suppliers and then return the washed
ATTACHMENT B
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
product to the suppliers for sale and further refining. The washing facility will employ
between
14-26 people, depending on the number of current employees moved to this
area.
7. BRZ plans to later add a larger washing plant to wash the EAF oxide that is produced at
other facilities, including those planned
by BRZ'sparent company, ZincOx Resources,
pIc. BRZ expects
to employ between 29-44 employees when the washing facility is
expanded.
BRZ'sfuture goal is to reopen the zinc refining facility.
8. BRZ has identified a specific need for washing EAF zinc oxide. Zinc refineries
employing the electrowinning process must limit the amount
of cWoride, fluoride,
sodium, and potassium entering the solution circuit because there is no practical method
to remove them after they enter the circuit. These materials must be limited in the feed to
the plant to prevent equipment corrosion and
to aid in the efficient recovery ofzinc. This
applies to all zinc electrowinning plants.
9. The need for washing EAF zinc oxide to reduce cWoride, fluoride, sodium and potassium
is as follows:
a. During the zinc electrowinning process, an electric current passes through an
aluminum cathode, a zinc sulfate solution, and then a lead anode. Zinc metal is
deposited onto the aluminum cathode while
oxygen forms on the lead anode.
More details on the process are found in AS 99-3, page 4, (Att. A) and in the
petition for AS 99-3 pages 10 through
13.
b. CWoride in solution accelerates corrosion of all process equipment in the plant,
especially the electrodes (anodes and cathodes) in the cell house. The more
cWoride in solution, the faster the equipment corrodes. The relatively small
anodes used at BRZ cost at least $300 each and there are approximately 15,000
of
them in use. Other zinc plants have far more electrodes in use than BRZ in
proportion
to their production relative to BRZ. No zinc plant can risk destruction
ofthe anodes and cathodes in inventory. High concentrations of cWoride in
solution also produce cWorine gas at the anode, which is a safety concern.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
c. Fluoride attacks the boundary layer between the aluminum cathode and the zinc
deposited from solution. This effect makes it difficult
to separate the two. High
fluoride concentrations can make it impossible to harvest the zinc metal, and
production essentially stops until clean cathodes can replace those rendered
useless by fluoride. To clean
the cathodes, the majority ofthe zinc must be pried
offthe cathodes and then the remainder must be removed by chemical dissolution
with acid or by efficient physical brushing.
d. Sodium
and potassium salts are more soluble than the salt ofzinc in a zinc
electrowinning process. Therefore
the presence of these cations reduces the
solubility of zinc because ofthe common ion effect. The presence ofthe sodium
and potassium limits
the overall production rate ofthe plant.
10. Washing
the EAF zinc oxide effectively reduces chloride, fluoride, sodium and
potassium and creates a more marketable product for further refining. Zinc plants using
electrowinning technology, including BRZ, can
use more washed EAF zinc oxide than
unwashed EAF zinc oxide. As an example, a plant limited to using 1,000 tons of
unwashed EAF zinc oxide because ofthe cWoride content could use at least 10,000 tons
ofwashed EAF zinc oxide since the washing efficiency for cWoride removal is 90% or
better. Therefore, washing expands the market for the EAF zinc oxide.
11.
The following tables show the levels of cWoride, fluoride, sodium and potassium in EAF
zinc oxide supplied to the BRZ Facility, the reduction of cWoride, fluoride, sodium and
potassium due
to washing,
~lild
the average removal estimates over a period of seven
years. The data is actual plant data from the BRZ washing plant.
Average Composite assays
by year of operation for Zinc Oxide Fed to Wash Operation
Year
% Zinc
% Chloride
% Fluoride
% Sodium
% Potassium
1999
63.7
5.63
0.20
2.35
2.26
2000
62.7
6.18
0.21
2.39
2.28
2001
62.4
5.88
0.23
2.22
2.07
2002
63.1
4.63
0.11
1.97
1.48
2003
58.1
6.88
0.17
2.65
2.44
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
2004
60.5
6.59
0.16
2.69
2.4
2005
59.8
6.81
0.16
2.49
2.18
Averal!e
61.5
6.09
0.18
2.39
2.16
Average Composite assays bv vear
of operation for Washed Zinc Oxide produced
Year
% Zinc
% CWoride
% Fluoride
% Sodium
% Potassium
1999
70.32
0.31
0.11
0.23
0.1
2000
70.1
0.37
0.09
0.25
0.13
2001
66.6
0.27
0.06
0.17
0.09
2002
66.9
0.33
0.06
0.28
0.13
2003
64.4
0.67
0.16
0.24
0.13
2004
66.3
0.94
0.13
0.44
0.29
2005
64.8
0.03
0.75
0.42
Averal!e
67.1
0.48
0.09
0.34
0.18
Average removal estimates for the seven year period (% in - % out) x
100/ % in
CWoride
Fluoride
Sodium
Potassium
92.1%
48.3%
85.9%
91.4%
FURTIIERAFFIANT SAYETIINOT.
Subscribed and Sworn to before me
on March kL, 2008.
I
YL~8uLu~
Ge' rge M. Obeldobel
:-----'
~.
!
sident
&
CEO- BRZ
My Commission Expires:
_\ \
I
0 \IdO\0
OFFICIAL SEAL
;
SANDRA K ANDERSON
M
~'ary
PUblic - Slate
olllilno/.
Y
omm/'''on
ExpIre.
Nov
1, 2010
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
2004
60.5
6.59
0.16
2.69
2.4
2005
59.8
6.81
0.16
2.49
2.18
Averal!e
61.5
6.09
0.18
2.39
2.16
Average Composite assays bv year of ooeration for Washed Zinc Oxide oroduced
Year
% Zinc
% Chloride
% Fluoride
% Sodium
% Potassium
1999
70.32
0.31
0.11
0.23
0.1
2000
70.1
0.37
0.09
0.25
0.13
2001
66.6
0.27
0.06
0.17
0.09
2002
66.9
0.33
0.06
0.28
0.13
2003
64.4
0.67
0.16
0.24
0.13
2004
66.3
0.94
0.13
0.44
0.29
2005
64.8
0.03
0.75
0.42
Averal!e
67.1
0.48
0.09
0.34
0.18
Average removal estimates for the seven year period
(% in - % out) x
100/
%
in
Chloride
Fluoride
Sodium
Potassium
92.1%
48.3%
85.9%
91.4%
FURTHER AFFIANT SAYETHNOT.
orge
M
Obeldobel
resident
&
CEO- BRZ
Subscribed and Sworn to before me
on March
~
2008.
My Commission Expires: \ \
I
D(I
,;;?l
0 I0
OFFICIAL SEAL
SANDRA KANDERSON
Notary Public.
Slale 01 Illinois
MV
Comml"lon
Expire, Nov 1, 2010
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
ATTACHMENT C
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
ILLINOIS POLLUTION CONTROL BOARD
February
17, 2000
IN THE MATTER OF:
)
)
PETITION OF HORSEHEAD RESOURCE )
AND DEVELOPMENT COMPANY, INC. )
FOR AN ADJUSTED STANDARD UNDER)
35 ILL. ADM. CODE nO.131(c)
)
AS 00-2
(Adjusted Standard - RCRA)
JOHN N. MOORE
OF THE LAW OFFICES OF JOHN N. MOORE, P.C. AND PAUL E.
GUTERMANN OF AKIN, GUMP, STRAUSS, HAUER
&
FELD, L.L.P. APPEARED ON
BEHALF OF PETITIONER; and
PETER E. ORLINSKY APPEARED ON BEHALF
OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by N.J. Melas):
Petitioner Horsehead Resource and Development Company, Inc. (Horsehead) operates a
permitted solid waste management facility at
2701 E. 114th St. in Chicago, Cook County,
Illinois. Horsehead recycles a hazardous waste, which
is a byproduct of steel production, to
make zinc-bearing materials. Horsehead has petitioned the Board to determine that its crude
zinc oxide
(CZOl. product from the Chicago facility be classified as a commodity-like material
rather than a "solid waste"
or "hazardous waste" under the Resource Conservation and
Recovery Act (RCRA) and corresponding Illinois hazardous waste rules and regulations
l
.
Horsehead wants to sell CZO without being subject to Illinois hazar,dous waste requirements.
Horsehead has filed a petition for an adjusted standard pursuant
to 35 Ill. Adm. Code
nO.131(c). Section
no.
131(c) allows the Board to determine that certain materials are
excepted from the definition
of solid wastes (and therefore not hazardous wastes)
if
the materials
meet certain criteria. Horsehead claims that its CZO recovered from electric arc furnace dust
(EAF dust) by a high temperature metals recovery (HTMR) process meets the criteria. The
Illinois Environmental Protection Agency (Agency) has recommended that the Board grant
Horsehead's petition for an adjusted standard.
The Board finds that CZO
is excepted from the definition of solid waste. The Board
therefore grants Horsehead's petition for an adjusted standard subject
to the conditions set forth
in this order.
PROCEDURAL HISTORY
1
RCRA is the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act
of 1976, as amended, 42 U.S.C. 6901
et seq.
Board regulations at issue in the
instant opinion and order are nearly identical
to US Environmental Protection Agency (USEPA)
regulations promulgated pursuant to RCRA.
ATTACHMENT C
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
2
On July 20, 1999, Horsehead filed a petition for an adjusted standard (petition) with the
Board under
35 lil. Adm. Code nO.131(c). However, Horsehead failed to timely cause
puhlication
of the required notice. As a result, the Board dismissed the petition, but allowed
Horsehead leave
to refile the petition. See III
re
Horsehead Resource and Development
Company, Inc. (August 5, 1999),
AS 00-1.
On August 6, 1999, Horsehead refiled the petition for the adjusted standard with the
Board. On that same date, Horsehead
fIled a motion requesting that the Board incorporate the
record from docket AS 00-1 into a new docket which the Board numbered docket
AS 00-2.
Pursuant
to Board regulations, Horsehead caused timely publication of the required notice on
August
7,1999, and filed a certificate of publication with the Board on August 11, 1999. See
35
ill.
Adm. Code 106.711 and 106.712.
On July 20, 1999, the Board received a motion
to appear
pro !zac vice
from attorney
John
N. Moore, and on September 7, 1999, the Board received a motion to appear
pro !zac
vice
from attorney Paul E. Gutermann.
Also on July 20, 1999, Horsehead filed an application for non-disclosure
of confidential
data (non-disclosure application). Horsehead sought to protect certain confidential financial data
in the petition pursuant to Section 101.161
of the Board's procedural rules. See 35
ill.
Adm.
Code 101.161. Horsehead asked for non-disclosure
of certain financial data in its petition
pursuant
to 35
ill.
Adm. Code 101.16l(a)(3) which provides that confidential data may be
protected in a Board non-disclosure order. Specifically, Horsehead sought
to prevent disclosing
the prices that it charges for CZO
to two of its customers, Zinc Nacional and Zinc Corporation
of America (ZCA). Horsehead also sought to protect certain information on CZO's economic
value. App. at 2. Horsehead claimed that disclosure
of the information would inhibit its ability
to competitively market CZO. App. at 3.
On September 9, 1999, the Board accepted Horsehead's refiled petition for the adjusted
standard, granted Horsehead's request
to incorporate the record from docket AS 00-1 into
docket
AS 00-2, granted motions from attorneys John N. Moore and Paul E. Gutermann to
appear
pro !zac vice,
and granted Horsehead's non-disclosure application. See III
re
Horsehead
Resource and Development Company, Inc. (September 9, 1999),
AS 00-2.
On August 27, 1999, the illinois Environmental Protection Agency timely
fIled its
response
to Horsehead's petition. In the response, the Agency reco=ended that the Board
grant the petition assuming that Horsehead provided more information on chlorine content in
CZO and Horsehead's response in the event
of an accidental release of raw material or CZO.
On September 10, 1999, Horsehead filed its reply
to the Agency's response. In the
reply, Horsehead addressed the Agency's concerns regarding chlorine and procedures in the
event
of an accidental release.
On October 28, 1999, Board Hearing Officer John Knittle held the required hearing in
this matter. See 35 m. Adm. Code 106.415(a). Horsehead presented one witness, James M.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
3
Hanrahan, one
of its corporate vice presidents. Tr. at 8-10.
2
Knittle found Hanrahan to be
credible. Tr. at 34. Horsehead also introduced three exhibits, and Knittle admitted all
of them.
Tr. at 6-7. At hearing, Hanrahan further addressed the Agency's concerns regarding accidental
releases. He also answered Agency questions on the value of CZO and Horsehead's internal
manufacturing processes. Tr. at 27-32. At hearing, counsel for the Agency stated that the
questions raised
in the response had been answered and reco=ended that the Board grant the
requested adjusted standard to Horsehead. Tr. at 34. The Agency offered no exhibits, and the
parties chose not to file posthearing briefs.
LEGAL FRAMEWORK
Under Subtitle C
ofRCRA and corresponding Illinois laws and regulations, hazardous wastes
are a subset
of solid wastes. A material that is not a solid waste cannot be regulated as a hazardous
waste. Illinois hazardous waste regulations govern those who generate, treat:, store, dispose, recycle, or
transport hazardous waste. See 35 Ill. Adm. Code 722-726, 728.
A solid waste
is generally "any discarded material". See 35 Ill. Adm. Code 721.102. A solid
waste can become a hazardous waste in two ways. A solid waste can exhibit a "characteristic" of
hazardous waste (i.e., toxic, corrosive, ignitable, or reactive). Secondly, the solid waste can be a
"listed" hazardous waste if, for example, it comes from a certain type of process such as electroplating.
35 Ill. Adm. Code 721.1 03; also see generally 35 Ill. Adm. Code 121 Subparts C and D.
Board regulations at 35 lli. Adm. Code
no.
l3 I(c? establish criteria that allow the
Board
to make exceptions for certain partially-reclaimed materials that would otherwise be
considered solid
or hazardous wastes. If the partially-reclaimed material in question meets these
criteria, then it is not considered a solid
'Of hazardous waste. Section nO.131(c) provides that:
The Board will determine that those materials that have
been reclaimed
but must be reclaimed further before recovery is completed are not solid
wastes if, after initial reclamation, the resulting material is co=odity-like
(even though it is not yet a co=ercial product, and has to be reclaimed
further). This determination will be based on the following criteria:
I)
The degree
of processing the material has undergone and the
degree of further processing that is required;
.
2)
The value of the material after it has been reclaimed;
3)
The degree to which the reclaimed material is like an analogous
raw material;
2 The transcript of the hearing is cited as "Tr. at _."
3 The corresponding federal rule is 40 CFR § 260.31(c) (1998).
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
4
4)
The extent to which an end market for the reclaimed material is
guaranteed;
5)
The extent to which the reclaimed material is handled to minimize
loss; and
6)
Other relevant factors. 35 Ill. Adm. Code
720.13I(c).
Horsehead claims that its CZO product is not a solid nor hazardous waste.
It
claims that CZO,
which
is partially reclaimed from EAF dus1; is commodity-like pursuant to the criteria in 35 TIl. Adm.
Code 720.131(c). Exh. 1 at
5.
4
FINDINGS OF FACT
Horsehead is the largest operator ofHTMR facilities and the primary recycler ofEAF dust in
the United States. Tr. at 7, 11; Exh. 1 at 6. Horsehead has traditionally used Waelz rotary Idlns to
produce zinc products from zinc ores and other materials containing zinc. In the 1970s, operators
of
Waelz kilns discovered that EAF dust was an effective alternative feedstock to zinc ores. Exh. 1 at 6.
Horsehead operates two Waelz rotary Idln HTMR units at its Chicago facility. Tr. at 14; Exh. 1 at 7.
EAFDust
Most EAF dust
is an airborne byproduct ofa process in which scrap steel (usually coated with
zinc)
is melted in an electric arc furnace or mini mill and recycled to fonn new steel products. The EAF
dust
is collected in bagbouses at the steel plants. Tr. at 11; Exh. 1 at 6, Att. 13; 35 111. Adm. Code
721.132. EAF
dust. contains zinc, in addition to recoverable quantities ofcadmium and lead. Tr. at 11;
Exh. I at 6.
In
the past, most EAF dust was disposed. Exh. 2 at 3.
Horsehead'sProduction Process
Horsehead produces CZO by recycling a mixture which
is about 90% EAF dust and about
10% hazardous and non-hazardous zinc-bearing feedstocks. Tr. at 12; Exh. 1 at I,
7. The EAF dust
and other feedstocks arrive at Horsehead via enclosed railcar or truck. Upon arrival, Horsehead tests
the feedstocks including generator-specific tests for metal content. Tr. at 13; Exh. 1 at
7, Att.
1.
Feedstocks are then introduced directly into the curing and blending (C&B) building without
being stored. Tr. at 13,28-29; Exh. 1 at 7-8, Att.
1. Water is added to the feedstocks before they are
cured, blended, and then sent by conveyor belt to a feed hopper. The feedstocks now have a unifonn
feed composition which allows for optimal efficiency once the feedstocks are introduced into the Waelz
kiln HTMR units. Tr. at 13,28; Exh. 1 at
8. From the feed bins, another conveyor belt supplies the
4 Horsehead's petition, which was entered into evidence at hearing as an exhibit, is cited as
"Exh. 1 at _." Likewise, the Agency's response is cited as "Exh. 2 at _.", and Horsehead's
reply is cited as "Exh. 3 at
_. "
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
5
Waelz kilns. Just before the feedstocks enter the Waelz kilns, a carbon source (such as coke) is added.
Tr. at 13-14, 28; Exh. I at 8, Att.
I.
During the HTMR process, the feedstocks are heated to 1200 degrees Celsius in order to
chemically reduce nonferrous metals. Waelz kilns are essentially long rotating tubes with one end higher
than the other. As the fuedstock flows down the length ofthe tube, the zinc material is reduced. As it
volatizes, it rises up from the feedstocks into a countercurrent airstream. Tbis airstream carries the zinc
material out ofthe upper end ofthe Waelz kiln. Tr. at 14; Exh. I at 8-9, Att.
I.
The HTMR process results in no waste nor water discharges. Exh. I at 8; Exh. 2 at 4; Exh. 3
at 3.
CZOandIRM
The resulting zinc material from the upper end ofthe Waelz kiln is CZO.
It
is cooled and
collected in Agency-permitted product collectors.
An
enclosed screw conveyor then transfers the CZO
to fully-enclosed pressure differential railcars for shipment. Tr. at 14; Exh. I at 8-9, Att. I; Exh. 3 at 5.
CZO has a much higher zinc content and much lower in iron content than the EAF dust. CZO
is approximately 60% zinc as opposed to the HTMR feedstocks which are only about 15% zinc. Tr. at
16; Exh. I at II. The chart below details the change in the constituency from the Waelz kiln HTMR
feedstock to CZO.
Major Constituents
HTMR Feedstock
(% weight)
CZO (% weight)
Zinc
14.9
58.8
Iron
26.5
5.3
Calcium
5.0
1.0
Manganese
2.2
0.5
Magnesium
2.0
0.4
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
6
Silicon
1.5
0.4
Sulfur
1.1
0.9
Chlorine
0.9
4.5
Lead
0.8
3.6
Sodium
0.7
1.7
Potassium
0.6
2.1
Aluminwn
0.5
0.1
Fluorine
OJ
0.3
Exh. I
at 12.
At the lower end ofthe Waelz
kiln,
Iron-Rich Material (IR.M) is collected. The IRM is about
50% iron, which
is double the percentage ofiron in the feedstock. IRM is sold for use in asphalt
aggregate, cement production, or construction aggregate. Tr. at 11-12, 14-15, 16; Exh. I at
8, Att. J.
ValueofCZO
Horsehead changes EAF dust, a product with negative value, into CZO and IRM, products
with substantial positive values.
EAF dust has a negative value because generators ofEAF dust pay for
it to be either disposed
or recycled. Tr. at
II,
22, 27-28; Exh. I at 18, 22. CZO is valuable because it
is high in zinc and low in constituents such as iron that cannot be processed at zinc production plants.
Exh. I at 18, 22-23.
Demand for Horsehead's CZO is strong, and, as a result, Horsehead has never
stored or stockpiled
CZO. Tr. at 20, 24; Exh. I at 25.
Worldwide zinc prices are set on the London Metals Exchange (LMB). The value
ofCZO is
based on its zinc percentage and the fluctuating price ofzinc set by the LMB. Zinc purchasers, such as
ZCA and Zinc Nacional,
may revise this equation and deduct a processing charge from CZO. The
value
ofnon-zinc constituents in CZO also affect its price. Exh. I at 18-19,25.
Although the Board determined that Horsehead was
not required to disclose the prices that
it charges its customers for CZO (See
In re
Horsehead Resource and Development Company,
Inc. (September 9, 1999),
AS 00-2), Horsehead's adjusted standard petition included prices that
other
CZO manufacturers have charged to their customers. Although Horsehead did not
disclose its CZO prices in its petition, at hearing Hanrahan admitted that Horsehead's prices for
its
CZO are "in the same range" as the price that AmeriSteel charged to Big River Zinc (BRZ)
for a zinc
product virtually identical CZO. Hanrahan also admitted that the value of CZO is
comparable to roasted
zinc concentrates produced from mined ore. Tr. at 20-21, 25; Exh. 1 at
21, 22; Exh. 2
at 3;
hI
re
Big River Zinc Corporation (April 15, 1999), AS 99-3, slip op. at 13.
CZO Compared to Roasted Zinc Concentrates
Sulfide zinc ores extracted
from the ground are typically 3
%
to 5
%
zinc. Before zinc
ores
can reach the quality of CZO, they must be mined, crushed, and milled. The ores are then
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
7
subject to sequential floatation/separation, dewatering, and drying which results in a zinc
concentrate. Although
CZO contains more salts, iron, and lead than zinc concentrates, zinc
concentrates contain more sulfur than CZO. Exh. I at 24. Zinc concentrates must be roasted to
produce roasted zinc concentrates and recover sulfur
in
the form of sulfur dioxide gas. Exh. 1
at 14, 24, Alt. 4. Roasted zinc concentrates are similar enough to CZO that both are suitable as a
feedstock
in zinc production. Exh. I at 23-24.
Markets for CZO
Zinc refineries are not able to process EAF dust, but they are able to process CZO. Exh. 1 at
11, 18. Plants in Japan, Gennany, Italy, Spain, France, Mexico, and the United States produce
hundreds ofthousands oftous ofCZO annually.
If
the plant is an integrated zinc manufacturing
complex, the CZO is used on site.
If
not, the CZO is sold to other companies that manufacture zinc.
The Commodities Research Unit, a London-based research finn, issued a report predicting that demand
for CZO will continue to grow.
In
fuct, CZO is increasingly replacing the need for zinc ores in
European smelters. Exh. 1 at 19-21, 25, Alt. 7.
Zinc and Zinc Calcine Production
Horsehead sells CZO
to ZCA for use as a feedstock in zinc production at ZCA's plant in
Monaca, Pennsylvania.
5
Exh. 1 at 13.
Horsehead also sends CZO to its facility in Palmerton, Pennsylvania to be used as a feedstock
for calcining. Tr. at 17; Exh. 1 at 6, 13, 15; Exh. 3 at 3. Calcining further purifies the CZO by washing
out salts and removing lead. This washing results in a product called zinc calcine. Compared to CZO
which is a little less than 60% zinc, zinc calcine is about 60% to 65% zinc. Horsehead then sells zinc
calcine to ZCA. Tr. at 17-18; Exh. 1 at 15, Alt. 6; Exh. 3 at 3.
To ensure efficiency in the zinc manufacturing process, ZCA blends CZO, zinc calcine, roasted
zinc concentrates, and other zinc-bearing materials into a unifonn feedstock. Exh. 1 at 15; Exh. 3 at 3.
This unifonn fuedstock requires some additional processing at a zinc refinery - namely sintering and
thennal reduction. Exh. 1 at 13, 14, At!. 4.
Sintering densifies and hardens the zinc oxides and reduces some ofthe other constituents in the
zinc feed. The zinc oxides are mixed with a carbon source (for fuel) and a silica (to bind the materials
together). The sintering machine heats the materials to 900 - 1,200 degrees Celsius. Sintering
produces zinc sinter and lead concentrate. The lead concentrate is a feedstock for another process.
The zinc sinter is feedstock for an electrothennic furnace. Tr. at 19; Exh. 1 at 13, 14, Alt. 4; Exh. 3 at
2.
5 Horsehead and ZCA are separate companies both owned by Horsehead Industries, Inc. Tr. at
32; Exh. 1 at 13.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
8
The electrothennic furnace removes oxygen and minor constituents ofthe zinc sinter. The
furnace vaporizes and condenses the zinc sinter which produces zinc metal and non- hazardous slag.
Exh. I at 14, Att. 4. ZCA makes zinc metal slabs and ingots from the zinc metal. Exh. I at 13, Att. 4.
Removing Salts. The Agency asked Horsehead to comment on the higher chlorine content in
CZO compared to mined concentrates and also asked ifthe chlorine posed any pollution control
problems. Exh. 2 at 3. Horsehead responded that although CZO requires additional processing
because it has more salts (the source ofthe chlorine) than zinc concentrates, zinc concentrates require
additional processing because they have far more sulfur than CZO. CZO is a more predictable and
unifonn feedstock than zinc concentrates because the percentage ofzinc in CZO is less variable than in
zinc concentrates. Tr. at 22-24; Exh. 1 at 13,24, Att. 10.
Salts in CZO are removed after CZO has left Horsehead'sChicago facility - both during the
calcining process and during the zinc production process. Calcining is essentially a puriJYing step that
increases zinc concentration and reduces the salt content in CZO. As a result:, calcining also leads to a
reduction in the amount ofsalts charged to ZCA'ssinter machine. Exh. 1 at 16. The salts removed
during the calcining process attach to a lead concentrate material which is shipped to another facility in
Oklahoma Tr. at 18. That facility processes the lead concentrate to recover metals. The salts are
removed from the lead concentrate into a non-hazardous water stream. This stream is injected into a
pennitted non-hazardous
deep well in Oklahoma for disposal. Tr. at 18-19; Exh. 3 at 3.
Even though most salts are removed from zinc calcine, there are salts in the other zinc-bearing
feedstocks (including CZO) prior to sintering. During sintering, much like during calcining, the salts
primarily attach to a lead concentrate. Incidental salts in water from this part ofthe process are sent to
an NPDES pennitted outfall at the ZCA fucility. Tr. at 19; Exh. 3 at 2-3.
Micronutrient Production
CZO is also suitable as an ingredient in the production of micronutrients. Tr. at 17; Exh. 1 at
13. Horsehead sells CZO to Zinc Nacional, a pyrometallurgical facility in Monterey, Mexico.
Horsehead transports CZO to the Mexican border where Zinc Nacional taI<es title to it. Zinc Nacional
pelletizes the CZO. The pellets are then subject to a two step calcining process which volatizes certain
metal compounds, washes out salts, and produces zinc oxide. Zinc Nacional sells the zinc oxide to
agriculturaI firms which use it as a micronutrient in animal feed. Tr. at 17; Exh. 1 at 17-18.
Loss Minimization and Emergency Procedures
Horsehead claims to have equipment which eliminates, wherever possible, loss ofthe product
into the environment during the manufacturing and shipping processes. Exh. I at 26 -28. Horsehead
manages its feedstocks in an enclosed negative pressure environment. All transfer points have collection
equipment and Agency-pennitted baghouses to prevent loss ofthe material and to recycle any material
that is collected. Exh. I at 7, 8,26; Exh. 2 at 4; Exh. 3 at 3. CZO is pneumatically conveyed from
pennitted product collectors through pipes that extend into enclosed pressure differential rail cars. The
rail car loading
tank
is in an enclosed building. These cars leave Horsehead immediately after CZO is
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
9
produced. Off-site transport ofCZO must comply with U.S. Department ofTransportation regulations.
Exh. I at 25, 26; Exh. 2 at 4; Exh. 3 at 3, 5.
Horsehead has two Agency-pennitted product collectors. Each collector has several
compartments, and each compartment has several bags. A compartment or bag can be repaired
without interrupting the work ofthe other compartments. Exh.3 at 5. Horsehead also has a 24 hour
opacity monitors to measure gases exiting from the product collectors. An alann connected to the
opacity monitor alters the Waeiz
kiln
operator
if
opacity levels increase. Exh.3 at 4.
To quote Hanrahan, CZO "never sees the light of day". Tr. at 25.
The Agency asked that Horsehead explain its procedures for loss minimization and explain its
plans to address an accidental spill, ruptured baghouse, or other loss of CZO. Exh. 2 at 4. Horsehead
has implemented several programs that aim to prevent the accidental release ofCZO or its constituents.
These include: employee training, inspection and monitoring, preventative maintenance, and
comprehensive housekeeping. Tr. at 29-30; Exh. 3 at 4. One ofthe preventative maintenance
programs involves constant temperature monitoring ofthe Waeiz kilns. Tr. at 29-30.
Horsehead
is also prepared to handle an accidental release. If a release were to occur, trained
Horsehead personnel would respond. The area where CZO is managed is completely paved with either
asphalt or concrete which would contain a CZO spill. The paved surface also allows for easier cleanup
ofthe spilled material with vacuum trucks, road sweepers, or other equipment. Horsehead has also
made arrangements with the proper regulatory agencies, fIre departments, hospitals, and third party
vacuum companies. The recovered CZO would be returned to the recycling process. Tr. at 30-31;
Exh. 3 at 4.
DISCUSSION
In
this section, the Board will first address whether CZO is a solid waste. Next:, the Board
discusses ifthe provision at 35 Ill. Adm. Code
nO.13I(c)
is available to Horsehead. Lastly, the Board
evaluates the factors at 35 Ill. Adm. Code nO.I3I(c).
Is CZO a Solid Waste?
Section
nO.13I(c)
ofthe Board's rules allows the Board to except materials that would
otherwise be defined as solid wastes
6
•
The Board must fIrst detennine ifCZO is a solid waste. IfCZO
is not a solid waste, Horsehead does not need an adjusted standard.
A "solid waste"
is any "discarded material" which the regulations do not otherwise exclude.
See '35
Ill.
Adm. Code n1.l02(a)(I). One way that a material may be deemed "discarded" is by
being "recycled" in a manner described at Section nI.102(c) ofthe Board's rules. See 35
Ill.
Adm.
6 As previously noted, hazardous wastes are a subset ofsolid wastes pursuant to RCRA Subpart C.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
10
Code 721.102(a)(2). Section 721.102(c)(3) and Appendix Z to Part 721 ofthe Board'srules provide
that ifa "listed sludge" is "recycled" by being "reclaimed", it is a solid waste.
7
Employing the definition set forth above, the Board finds that CZO is a solid waste. CZO is
considered a "listed sludge." A "sludge" is defined as a "solid ... waste generated from [an] ... air
pollution control facility ..." 35
TIL
Adm. Code 72l.J01 (c)(2); 35
Ill.
Adm. Code 720.110.
Horsehead recovers CZO from EAF dust. EAF dust is collected in air pollution control facilities at steel
plants and is thereforea sludge. EAF dust is "listed" because it is listed as a hazardous waste from a
specific source. EAF dust is listed as code K061, "emission control dust/sludge from the primary
production ofsteel in electric furnaces". 35
111.
Adm. Code 721.1'32.
While this listing applies to EAF dust rather than CZO, a material derived from the treatment of
a listed hazardous waste is itself also a listed hazardous waste. 35
Ill.
Adm. Code 721.103(c)(2)(A),
(d)(2).
In
promulgating the federal RCRA regulations which are the basis for these State regulations,
USEPA emphasized that "all ofthe residues from treating the original listed wastes are likewise
considered to be the listed waste ...." 54 Fed. Reg. 1,056, 1,063 (Jan. II, 1989). Thus, CZO is
also considered a listed sludge.
Next, the Board [mds thatEAF dust and the resulting CZO are being recycled by reclamation.
USEPA stated that materials are considered reclaimed if "material values ... are recovered as an end-
product ofa process (as in metal recovery from secondary materials)" or ifthey are "processed to
remove contaminants in a way that restores them to their original usable condition." 50 Fed. Reg. 614,
633 (Jan. 4, 1985). Horsehead processes EAF dust via HTMR to remove contaminants and recover
CZO. After further treatment ofCZO including further removal ofcontaminants, the resulting zinc
materials can be processed into zinc metal or used in animal feed.
CZO is a listed sludge that is recycled by being reclaimed. Therefore, CZO is a solid waste.
Applicability of Section 720.131(c)
USEPA stated that, generally, a waste which is being reclaimed remains a waste until the entire
reclamation process is completed. 50 Fed. Reg. 614, 620, 633, 634, 655 (Jan. 4,1985). Section
720.l31(c)
of the Board'srules is an exception to this principle. USEPA explains that the federal
counterpmtto Section 720.131(c) is for those situations in which "the initial reclamation step is so
substantial that the resulting material is more commodity-like than waste-like even though no end-
product has been recovered." 50 Fed. Reg. 614, 655 (Jan. 4, 1985).
The Board finds that EAF dust that has been processecl in the Waelz kiln HTMR units has been
initially reclaimed but not fully reclaimed. After treatment in the Waelz kilns, CZO contains much more
7 A detailed discussion of how materials becomes solid waste can be found at Petition of
Chemetco, Inc. for an Adjusted Standard From
35
ill.
Adm. Code. nO.131(a) and (c) (March
19, 1998), AS 97-2, slip op. at 11-12.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
11
zinc that EAF dust contains.
In
addition, the Waelz kilns decrease the amount ofIRM and contaminants
such as calcium and manganese. Exh. 1 at 12.
However, CZO requires further processing in order to recover end products. Salts are removed
from the CZO that is sent to Horsehead's Pennsylvania facility to make zinc calcine. ZCA blends CZO,
zinc calcine, and other materials; sinters these blended materials; and then send them to an
electrothermic furnace. The finished products are zinc slabs and zinc ingots. The CZO that Horsehead
sends to Zinc Nacional is pelletized and calcined before it suitable as a micronutrient in animal feed.
The Board finds that Section nO.l31(c) ofthe Board'srules is applicable in this case. Once
EAF dust has been initially processed in a Waeiz kiln HTMR unit, it has only been initially reclaimed, not
fully reclaimed.
Section nO.l3l(c) Factors
The Board must determine whether CZO is commodity-like based on the factors at Section
no.
131(c) ofthe Board's rules. Based on the analysis ofthe factors below, the Board finds that CZO
is commodity-like. The Board addresses each ofthe factors herein.
The Degree ofProcessing the Material has Undergone and the Degree ofFurther Processing that is
Required
USEPA has explained the federal counterpart to each ofthe Section
710.131
(c) factors. In
explaining this factor, USEPA stated "the more substantial the initial processing, the more likely the
resulting material is to be commodity-like." 50 Fed. Reg. 614, 655 (Jan. 4,1985). In the instant case,
the initial processing ofthe EAF dust begins in the C&B building at Horsehead'sChicago facility where
EAF dust is blended with, small amounts ofother zinc bearing materials and treated in order to provide a
uniform composition for the Waelz ldln H1MR units. Tr. at 13,28-29; Exh. 1 at 7-8, Att. 1. The
primary initial processing occurs in the Waelz kilns, where the HTMR process separates out lRM and
contaminants from the EAF dust to form CZO. HTMR increases the percentage ofzinc from about
15% in EAF dust to nearly 60% in CZO. Tr. at 14; Exh. 1 at 8-9,12, Att. 1. The primary input into
the Waeiz H1MR kiln unit is EAF dust, a material that generally cannot be used as a feedstock in zinc
production. After treatment in the Waeiz ldln H1MR units, two of the resulting products are lRM and
CZO. CZO can be used a feedstock in zinc production.
As discussed above, despite the initial processing at the Horsehead Chicago facility, CZO must
undergo further processing before it becomeseither zinc ingots, zinc slabs, or a micronutrient in animal
feed,
The Board need not determine whether all ofthe subsequent processing constitutes reclamation
under RCRA. The Board finds that the processing at Horsehead'sChicago facility which turns EAF
dust into CZO is substantial. The Board therefore fmds that this factor supports Horsehead's claim that
CZO is commodity-like.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
12
The Value of the Material After it has been Reclaimed
USEPA stated that "the more valuable a material is after initial processing, the more likely it is to
be commodity-like." 50 Fed. Reg. 614, 655 (Jan. 4,1985). EAF dust has a negative value because
generators typically pay others to take it away. Tr. at 1I, 22, 27-28; Exh. I at 18-22. Although
Horsehead's contract terms for
ezo are protected by non-disclosure, at hearing and in its petition
Horsehead indicated that ezo is valuable. Tr. at 20-21, 25; Exh. I at 2, 21. Horsehead claimed and
the Agency agreed that the sales price for ezo is similar to the sales price for roasted zinc
concentrates.
Tr. at 20-21, 25; Exh. 1 at 21; Exh. 2 at 3.
The Board finds that ezo has significant value.
The Degree to which the Reclaimed Material is Like an Analogous Raw Material
USEPA stated "[i]fthe initially-reclaimed material can substitute for a virgin material, for
instance as a feedstock to a primary process, it is more likely to be commodity-like." 50 Fed. Reg.
614,655 (Jan. 4, 1985).
A
good deal of processing, notably HTMR, is required before EAF dust becomes ezo.
Likewise, a good deal of processing is required before mined sulfide zinc ores become roasted zinc
concentrates, which have a constituency similar to ezo. Such processing includes crushing, milling,
sequential flotation/separation, dewatering, drying, and roasting. Exh. 1 at 14, Alt. 4.
Although they are not identical, both ezo and roasted zinc concentrates are suitable as
feedstock for zinc production processes such as the ones described above at ZeA and Zinc Nacional.
ezo has the advantage of containing a narrower range ofzinc (56% to 61%) than zinc concentrates
(48% to 61%) which makes ezo a more predictable and uniform feedstock. ezo contains more salts
than zinc concentrates, and, as a result, much ezo is calcined before the sintering step at a zinc
refinery. However, zinc concentrates contain more sulfur than ezo, and, as a result, zinc concentrates
must be roasted before sintering. Exh. I at 16, 24.
The Board finds that ezo is similar to mined zinc concentrates and can be substituted for
roasted zinc concentrates in zinc production processes.
./
The Extent to which an End Market for the Reclaimed Material is Guaranteed
USEPA stated "[i]fthe [petitioner] can show that there is an existing and guaranteed end market
for the initially reclaimed material (for instance, value, traditional usage or contractual arrangements), the
material is more likely to be commodity-like." 50 Fed. Reg. 614, 655 (Jan. 4, 1985).
Horsehead currently has contracts with ZeA and Zinc Nacional for the sale ofits ezo. Exh. I
at 22, Alt. 8, Alt. 9. Horsehead'sezo is sent either to its facility in Palmerton, Pennsylvania, ZeA, or
Zinc Nacional. Horsehead has never stored or stockpiled ezo. Tr. at 20,24; Exh. I at 25.
Horsehead either transfers or sells all ofthe ezo that it produces.
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
13
At least a dozen plants allover the world produce hundreds ofthousands of pounds ofCZO
every year. Exh. 1 at 20. Obviously, such large scale production indicates that markets exist for CZO.
In
its response to Horsehead'spetition, the Agency stated that end markets for CZO appear to
be guaranteed. Exh. 2 at 3. The Board agrees and finds that there is an end market for Horsehead's
CZO and an end market for CZO in general.
The Extent to which the Reclaimed Material is Handled to Minimize Loss
USEPA stated that "the more carefulIy a material is handled, the more it is commodity-lilce." 50
Fed. Reg. 614, 655 (Jan. 4, 1985). When a material is handled to minimize loss, it indicates that the
material has value. Loss minimization methods also reduce environmental hazards because they aim
to
prevent releases ofmaterial. Exh. 2 at 3.
All transfer points in Horsehead's Chicago facility have colIection equipment and baghouses
which allow Horsehead to collect released material and return it to the CZO manufacturing process.
Exh. 1 at 7,8,26; Exh. 2 at 4; Exh. 3 at 3. Immediately after CZO is produced, Horsehead conveys it
from product collectors via a pipe that extends into closed pressure differential rail cars for off-site
shipment. These railcars are in an enclosed building. Tr. at 25; Exh. 1 at 18, 26. Horsehead has 24-
hour opacity monitors to measure ifany gases escape from the product colIectors. Alarms alert plant
personnel ifthere is a release, and the affected part ofthe product colIector can be shut down for
repairs to minimize further losses. Exh. 3 at 4.
In
the event of an accidental release, Horsehead is prepared to clean up any spilled CZO and
return it to the recycling process.
In
the event ofa spill, trained personnel would use vacuum trucks,
road sweepers, and other equipment to gather the CZO. Any area in which a CZO spill could occur is
paved. Paved surfaces allow for an easier and much more complete cleanup ofspilled CZO than non-
paved surfaces. Tr. at 30-31; Exh. 3 at 4.
The Board finds that Horsehead handles CZO in order to minimize loss.
Other Relevant Factors
BRZ'sAdjusted Standard. Horsehead claims that the Board's recently-granted
adjusted
standard for the Big River Zinc Corporation (BRZ) supports its petition for an adjusted standard. See
In re
Big River Zinc Corporation (April 15, 1999), AS 99-3;
In re
Big River Zinc Corporation (May 6,
1999), AS 99-3.
In
that adjusted standard, the Board held that the EAF zinc oxide to be received by
BRZ for further processing was commodity-lilce instead ofa solid waste. Horsehead claims that the
EAF zinc oxide received and processed by BRZ is virtually identical to the CZO produced by
Horsehead. Both EAF zinc oxide and CZO are produced from EAF dust in an HTMR process,
contain very similar concentrations ofzinc, and are used as a primary feedstock in the production ofzinc
products. Tr. at 8, 26; Exh. 1 at 2, 10,28, 33, Alt. 11; Exh. 3 at 1-2. Furthennore, in the BRZ
opinion, the Board examined EAF zinc oxide and engaged in a nearly identical analysis - including
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
14
consideration ofthe factors at Section 720.13 I(c) ofthe Board rules - to determine that the EAF zinc
oxide that BRZ was to receive and process was excepted from the definition ofsolid waste.
In re
Big
River Zinc Comoration (April 15, 1999), AS 99-3, slip op. at 9-15.
There is one difference between BRZ'spetition for an adjusted standard and Horsehead's
petition. BRZ is a zinc refinery.
It
petitioned to have EAF zinc oxide declassified as an input to its
production process. Horsehead, on the other hand, is seeking to have CZO declassified as an output of
its production process. According to USEPA
"[a]pplicable regulatory requirements for the waste before initial reclamation are
unaffected. The initial reclairner will thus be a RCRA storage facility, and have
to obtain a permit to store the wastes before reclaiming them. Ifa variance
should be granted, however, the recovered material is not a waste and the
subsequent reclairner is not a RCRA facility." 50 Fed. Reg. 614, 655 (Jan. 4,
1985).
In
other words, Horsehead is an initial reclaimer and BRZ is a subsequent reclaimer. The Board finds it
irrelevant whether the initial reclaimer or the subsequent reclaimer is asking for the adjusted standard.
The adjusted standard does not relieve the initial reclaimer from complying with RCRA. Thus, the
Board'sadjusted standard for BRZ'sEAF zinc oxide is a relevant factor supporting Horsehead's
contention that CZO is commodity-like.
AmeriSteel Variance. Horsehead points out that in 1998 the Tennessee Department of
Environmental Conservation (TDEC) provided AmeriSteel a variance from the definition ofsolid waste
for its EAF zinc oxide product. AmeriSteel supplies this product to BRZ. Tr. at 26-27; Exh. I at 30-
31, Att. 12.
In
its petition Horsehead cites a letter signed by the Director ofTDEC'sDivision of Solid
Waste Management attesting that AmeriSteel'sEAF zinc oxide is granted a variance from classification
ofa solid and hazardous waste for five years, beginning September
II,
1998. Exh. I at Att. 12.
TDEC determined that the EAF zinc oxide satisfied the Tennessee regulations for a variance from the
classification ofhazardous waste. The Tennessee regulations are nearly identical to federal and Illinois
regulations. Exh. I at Att. 12; Tenn. Compo R.
&
Regs. tit. 1200, ch. 1-11-.Ol(4)(a)(3), ch. 1-11-
.01(4)(b) (1999). However, Horsehead does not provide any evidence ofTDEC'sanalysis of
Tennessee'sregulations. There is no discussion ofthe mctors that Tennessee should have applied in
making the variance deteimination. As a result; the Board will not cite to TDEC's variance for
AmeriSteel as a relevant factor.
SCDR Exclusion. Horsehead also states that USEPA excluded a material called splash
condenser dross residue (SCDR) from the definition ofsolid waste. Horsehead claims that this should
also be a relevant factor. Exh. I at 31; 56 Fed. Reg. 41164, 41173-41174 (Aug. 19, 1991). SCDR
is the partially reclaimed small-volume byproduct ofcertain HTMR processes which use K061
hazardous waste as an input. SCDR is collected from a splash condenser and stored for up to two
weeks before being sold to either zinc refiners or reused on-site in the HTMR process. SCDR also
contains a significant amount ofzinc (50% to 60%). USEPA did not grant a variance for SCDR, but
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
15
instead excluded it by rule from the definition ofsolid waste. 1n doing so, USEPA applied the federal
equivalent ofthe Section nO.l31(c) factors. 40 C.F.R. § 260.31(c); 56 Fed. Reg. 41164, 41174
(Aug. 19, 1991). The analysis, however, is cursory at best. The Board finds that the SCDR exclusion
is not a relevant factor.
Conserving Natural Resources. Horsehead correctly points out that recycling EAF dust
conserves natural resources by decreasing the need to mine non-renewable zinc ores. 1n addition,
Horsehead's recycling process means that less EAF dust is sent to landfills. Tr. at 27; Exh. 1 at 1,2,
28,32,
Att. 13; Exh. 2 at 4. Although the Board encourages increased recycling, it cannot be classified
as a "relevant factor" because it is not relevant to the determination that CZO is commodity-like.
The Board finds that the only "other relevant fuctor" which supports the commodity-like nature
ofCZO is the Board's 1999 adjusted standard for BRZ'sEAF dust zinc oxide.
Conditions on the Adjusted Standard
The Board is setting conditions on Horsehead's adjusted standard. The conditions are similar
to those placed on BRZ for its adjusted standard. See
In re
Big River Zinc Corporation (May 6,
1999), AS 99-3.
The adjusted standard only applies to CZO produced from EAF dust via HTMR at
Horsehead's Chicago facility and only applies to the CZO while it remains in Illinois.
As noted above, Horsehead claims that the EAF zinc oxide that BRZ receives and
processes is virtually identical to the CZO that Horsehead produces. As the Board did with
BRZ, the Board will require Horsehead
to sample and test the material as a condition of the
adjusted standard. Horsehead must test the CZO it produces for its percentage by weight of
zinc, lead, iron, total gangue materials (silica plus calcium plus magnesium), and chloride.
These are
the same constituents for which BRZ must test its EAF zinc oxide under its adjusted
standard. See
III
re
Big River Zinc Corporation (May 6, 1999), AS 99-3, slip op. at 6. As a
result, the Board mandates that Horsehead regularly test samples of its CZO for content according to
generally accepted practices such as procedures outlined by USEP
A.
The Board also mandates that
Horsehead maintain records ofthe sampling and test results. This will allow the Agency to assess
whether Horsehead
is indeed processing EAF dust via HTMR.
.
The Board wants to ensure that the adjusted standard only applies to CZO that is destined to
undergo processing for recovery ofan end product at either another Horsehead facility or another
entity's
facility. 1n addition, the Board also wants to ensure that Horsehead will not accumulate CZO at
its Chicago facility. Section nO.l31(c) ofthe Board'srules only applies to situations in which initial
reclamation has taken place and further reclamation must take place in order to recover an end product.
Thus, the adjusted standard only applies to CZO that (1) is destined for or has arrived at another
Horsehead facility, (2) is under a legally binding contract for sale from Horsehead to another entity, or
(3) has been acquired by another entity under a legally binding contract for sale from Horsehead. The
Board also mandates that Horsehead maintain records regarding the destination ofall CZO tllat it
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
16
produces under this adjusted standard. These conditions are similar to conditions that the Board
placed on BRZ's adjusted standard, but have been tailored to the facts
of this case.
Horsehead has several options
if it objects to the conditions that the Board has placed on its
adjusted standard. First, under the Board'sprocedural rules, Horsehead may file a motion to
reconsider with the Board. Second, Horsehead may appeal the adjusted standard to the Illinois
Appellate Court. Third, Horsehead may consider CZO a solid waste instead ofhandling the material
under the conditions ofthe adjusted standard.
CONCLUSION
The Board finds that Horsehead has established that CZO, which
is produced by subjecting
EAF dust to an HTMR process, is commodity-like. Thus, the Board finds that CZO is excepted from
the definition ofsolid waste. The Board
grants
Horsehead's petition for an adjusted standard pursuant
to Section 720.131 (c) ofthe Board'sregulations subject to the conditions set forth in this order.
This opinion constitutes the Board'sfindings offuct and conclusions
oflaw in thins matter.
ORDER
1.
The Board fmds that crude zinc oxide (CZO), which is produced by subjecting
electric arc furnace (EAF) dust from the primary production
of steel (K061
under 35
m. Adm. Code 721.132) to a high temperature metals recovery
(HTMR) process, is excepted from the definition
of solid waste and grants
Horsehead Resource Development Company (Horsehead) an adjusted standard
pursuant to 35
III
Adm. Code 720.131(c).
2.
The adjusted standard is subject to the following conditions:
a.
The determination described in paragraph one of the order applies only to
CZO:
(1)
that has been subject to Horsehead's HTMR process at its facility
in Chicago, Illinois and that will undergo further processing for
the eventual recovery of an end product;
(2)
that is in Illinois; and
(3)
that will depart
or has departed from Horsehead's Chicago facility
and that:
(a)
is destined for
or has arrived at another Horsehead facility;
(b)
is under a legally binding contract for sale from Horsehead
to another entity; or
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
17
(c)
has been acquired by another entity under a legally binding
contract
for sale from Horsehead ;
b.
Horsehead must maintain records identifying the destinations, including
purchasers,
of all CZO that Horsehead produces under this adjusted
standard;
c.
Each month, Horsehead must take representative samples
of the CZO that
it produces. Horsehead may composite the samples. Horsehead must test
each sample on a monthly basis to determine the percentage by weight
of
zinc, lead, iron, total gangue materials (silica plus calcium plus
magnesium), and chloride in the sample. Each sample must be collected
and tested in accordance with generally accepted practices, such
as those
specified in "Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods," USEPA Publication No. SW-846 (Third Edition, Updates I,
II,
ITA, IIB, and
III);
and
d.
Horsehead must maintain records
of the information required in
paragraphs 2(b) and 2(c) of this order for a period of three years and
must make them available for the Illinois Environmental Protection
Agency (Agency)
to inspect and copy at any reasonable time during
normal business hours upon the Agency's request.
IT
IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 lLCS 5/41 (1998)) provides for the
appeal
of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rille 335 establishes such filing requirements. See 172 ill. 2d
R. 335; see also
35 ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 17th day
of February 2000 by a vote of 6-0.
o
xl
rL-M,k.
~
~
.•..
;"'1'/)
(!
1
•
.;J,.
//k.
.
.'
~
k~~'
...
i
Dorothy M. Gunn, Clerk
illinois Pollution Control Board
Electronic Filing - Received, Clerk's Office, April 1, 2008
* * * * * PCB 2008-009 * * * * *
