BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
RECEIVED
CLERK'S OFFICE
MAY 0 9
2008
P_STATE
ollution
OF
Control
ILLINOISBoard
Petition of the Big River Zinc Corporation
?
AS 08-009
for an Adjusted Standard from 35 III. Adm.
?
(Adjusted Standard)
Code 720.131(c)
NOTICE OF FILING
To:?
John T. Therriault, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Big River Zinc Corporation
do Nijman Franzetti LLP
Jennifer T. Nijman
10 S. LaSalle Street, Suite 3600
Chicago, IL 60603
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P. 0. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE
that today I have filed with the Office of the Clerk of the
Pollution Control Board the
ILLINOIS ENVIRONMENTAL PROPTECTION AGENCY'S
RESPONSE TO THE PETITION FOR ADJUSTED STANDARD
and an
ENTRY OF
APPEARANCE
in the above titled matter. Copies of these documents are hereby served upon
you.
ILLINOIS ENV • ONME
A
AL PROTECTION A CY
By:
A
AV
William D. Ingersoll
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(21
7)
782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER.
William D. Ingersoll
Division of Legal Counsel
'?CSIVED
CLERK'S OFFICE
MAY 0 9 2008
STATE OF ILLINOIS
BEFORE THE ILLINOIS POLLUTION CONTROL
Beaton Control Board
IN THE MATTER OF:
Petition of the Big River Zinc Corporation
?
AS 08-009
for an Adjusted Standard from 35 III. Adm.
?
(Adjusted Standard)
Code 720.131(c)
PROOF OF SERVICE
I, William D. Ingersoll, an attorney, hereby certify that I caused the attached pleadings to be
served upon all parties listed on the attached Notice of Filing via first class U.S. mail from 1021
North Grand Avenue East, Springfield, Illinois 62794-9276.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER.
RECEIVED
CLERK'S OFFICE
MAY 0 9 2008
BEFORE THE ILLINOIS POLLUTION CONTROL
BRUCE
ollution
OF
Cntrol
F
ILLINOIS
Board
IN THE MATTER OF:
Petition of the Big River Zinc Corporation
AS 08-009
for an Adjusted Standard from 35 Ill. Adm.
(Adjusted Standard)
Code 720.131(c)
ENTRY OF APPEARANCE
I, William D. Ingersoll, hereby enter my appearance in the above-entitled action on behalf of
the Illinois Environmental Protection Agency.
William D. Ingersoll
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER.
RECEIVED
CLERKS OFFICE
MAY 0 9 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
RMIlution
STATE OF
Control
ILLINOIS
Board
IN THE MATTER OF:
Petition of the Big River Zinc Corporation
?
AS 08-009
for an Adjusted Standard under 35 Ill. Adm.
?
(Adjusted Standard)
Code 720.131(c)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S RESPONSE
TO THE PETITION FOR ADJUSTED STANDARD
NOW COMES
the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, William D. Ingersoll, and for its response to the Big River Zinc
Corporation's ("Petitioner")("BRZ") Petition for an Adjusted Standard would respectfully state:
1.
This response is filed pursuant to 35 Ill. Adm. Code 104.416.
2.
The Petitioner filed its Petition for an Adjusted Standard with the Illinois Pollution
Control Board ("Board") on April 1, 2008, pursuant to 35 Ill. Adm. Code Part 720.131(c).
3.
Petitioner seeks an amendment to its existing Adjusted Standard as granted by the
Board in
In re
Big River Zinc Corporation,
AS 99-3, April 15, 1999. BRZ currently has a motion
pending with the Board to incorporate by reference the contents of AS 99-3.
PRELIMINARY DISCUSSION
The Illinois EPA recommends that the Board GRANT Petitioner's Petition to amend its currently
existing Adjusted Standard and believes the following information is relevant to the Board's
consideration of the proposed amendment to the currently existing Adjusted Standard:
4.
BRZ was granted an Adjusted Standard from the Board in AS 99-3. The Board's
Order in that proceeding stated, "The Board finds that zinc oxide material produced by subjecting
1
electric arc furnace (EAF) dust from the primary production of steel (K061 under 35 III. 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 35 111. Adm. Code 720.131(c)."
5.
Condition 2.a (1) of that Adjusted Standard states that the determination that EAF
Zinc Oxide material is not a solid waste applies only to EAF Zinc Oxide "that is to be processed
through BRZ's electrolytic zinc refinery in Sauget, St. Clair County, Illinois."
6.
BRZ now seeks an amendment to Condition 2.a (1) of the Adjusted Standard granted
in AS 99-3, whereby the solid waste determination would apply to EAF Zinc Oxide material "that is
either to be processed through BRZ's electrolytic zinc refinery in Sauget, St. Clair County, Illinois or
that is washed at BRZ's facility and will depart or has departed from BRZ's facility to undergo
further processing and (1) is destined for or has arrived at another BRZ facility, (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." The other conditions
would remain unaffected.
7.
In order to ensure that the EAF Zinc Oxide material is not "speculatively
accumulated" at intermediate storage facilities or suppliers should the market for this material
weaken, the Illinois EPA recommends that the proposed language in Paragraph six (6) above contain
additional language so that Condition 2.a (1) states that the solid waste determination from AS 99-3
would apply to EAF Zinc Oxide material
that is either to be processed through BRZ's electrolytic zinc refinery
in Sauget, St. Clair County, Illinois or that is washed at BRZ's facility
and will depart or has departed from BRZ's facility to undergo further
2
refining and (1) is destined for or has arrived at another BRZ facility
that is capable of refining that material, (2) is under a legally binding
contract with the supplier of the EAF zinc oxide for return to the
supplier that is capable of refining that material, or (3) has been
acquired by another entity that is capable of refining that material
under a legally binding contract for sale from BRZ.
8.
The Illinois EPA finds that the only substantive change to the Adjusted Standard, as
granted in AS 99-3, concerns the location at which the final steps of the reclaiming process may
occur. In order to bolster BRZ's claim that further reclamation is occurring, the Illinois EPA
recommends that BRZ include in its Petition an economic benefit analysis for the service they
provide by washing the EAF Zinc Oxide material. That economic benefit would entail either what a
company pays BRZ to wash the EAF Zinc Oxide material before returning it or would entail the
increase in value of the EAF Zinc Oxide material between their purchase price and the price they can
sell the EAF Zinc Oxide material for.
9.
The Illinois EPA also finds that the proposed amendment to Condition 2.a (1) of the
existing Adjusted Standard is identical to the Condition granted by the Board in
In Re
Horsehead
Resource and Development Company, Inc., AS 00-2, February 17, 2000.
10.
Subject to the above comments, the Illinois EPA recommends that the Illinois
Pollution Control Board grant BRZ's Petition to amend its existing Adjusted Standard.
11.
35 III. Adm. Code 104.416 requires that any Illinois EPA response to this Petition
address subsections (a) through (j) of 35 III. Adm. Code 104.406. Because this Petition seeks an
amendment to an existing Adjusted Standard instead of an Adjusted Standard itself, many of the
3
requirements of
35 Ill.
Adm. Code 104.406 would not apply to this situation. However, the Illinois
EPA has addressed this requirement in the next section.
REGULATORY REQUIREMENTS
11. 35 III.
Adm. Code 104.406(a):
?
BRZ's Petition in AS
99-3,
which was granted
by the Board, fulfills the requirement of this subsection.
12.
35 III.
Adm. Code Section 104.406(6):
The regulations of general applicability
at
35 Ill.
Adm. Code Part
720
et seq.
were enacted to implement the requirements of the State of
Illinois RCRA program. This representation is stated on page three
(3) of
the Petition.
13.
35 III.
Adm. Code Section 104.406(c):
The level ofjustification necessary for
the requested Adjusted Standard is provided at
35 Ill.
Adm. Code
720.131(c)
and was found to be
met by the Board in AS
99-3.
14.
35
II1. Adm. Code Section 104.406(d):
As required, pages four (4) through five
(5)
of the Petition provide a description of the nature of the petitioner's activity that is the subject of
the Adjusted Standard.
15.
35 III.
Adm. Code Section 104.406(e):
Pages five
(5)
to six (6) of the Petition
provide a description of the efforts necessary
if
the Petitioner were to comply with the regulation
of
general applicability.
16. 35 III.
Adm. Code Section
104.406(1): The Petition provides a narrative
description
of
the proposed amendment to the existing Adjusted Standard as well as proposed
language for a Board order. The requirement for a narrative description
of
the proposed Adjusted
Standard and proposed language is found on pages six (6) through seven
(7) of
the Petition.
17.
35
III.
Adm. Code Section
104.406(g): This
requirement was found to be
4
fulfilled by the Board in AS 99-3.
18. 35 III.
Adm. Code Section
104.406(h): Page seven (7) of the Petition sets forth
the Petitioner's required statement of justification for the amendment to the existing Adjusted
Standard. In addition, this requirement was found to be fulfilled by the Board in AS 99-3.
19. 35 III.
Adm. Code Section
104.406(1): The Petition, on page seven (7) through
eight (8), states that the proposed Adjusted Standard is consistent with applicable federal law and
past Board precedent.
20.
35?
Adm. Code Section 104.406(j):
?
The Petitioner expressly waives its right
to a hearing. If the Board deems a hearing necessary, the Illinois EPA will be in attendance.
WHEREFORE, the Illinois EPA recommends that the Illinois Pollution Control Board
GRANT the Petitioner's Petition for an amendment to its existing Adjusted Standard.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION ENCY
William D. Ingersoll
Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER.
5
By: