2

BACKGROUND ON BRZ FACILITY

The primary raw material feedstock for BRZ’s Sauget refinery has been “zinc

concentrates from largely exhausted mineral ore deposits in Missouri and Tennessee.” Pet. at 2.

The facility has also used “secondary zinc oxide materials reclaimed from EAFD via processing

through a High Temperature Metal Recovery (‘HTMR’) unit” pursuant to an adjusted standard

issued by the Board as a solid waste determination in

In re

Petition of Big River Zinc

Corporation for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c), AS 99-3

(May 6, 1999).

Id

.

BRZ ceased operations at the Sauget facility in February 2006, because of BRZ’s

“inability to source sufficient feed at competitive prices to support ongoing refining activities.”

Pet. at 2-3. BRZ proposes to “retrofit” the facility with a new technology called the Leach,

Solvent Extraction, Electrowinning (LSXEW) process.

Id

. at 3. According to BRZ, the LSXEW

process would allow BRZ to use EAFD itself directly (

i.e.

, without HTMR processing) as a

feedstock in place of some or all of the raw materials BRZ has used in the past.

Id

. at 3. In

BRZ’s view, the LSXEW represents “the next step in the evolution of EAFD reclamation

technology,” beyond the sort of reclamation involved in AS 99-3, because now the “reclamation

that has occurred at the scrap steel EAF [electric arc furnace] is now sufficient” to produce an

economic feedstock without further processing.

Id

. at 37. Both BRZ and IEPA note that the

LSXEW process was not considered when EAFD’s K061 hazardous waste listing was

developed. Pet. at 41; IEPA Rec. at 2.

BRZ expects this change would allow it to “restart the refinery and return its Sauget

Facility operations to profitability,” “preserving numerous jobs and contributing to the prosperity

of an economically challenged region of the State of Illinois.” Pet. at 3, 37. BRZ states that its

requested solid waste determination for EAFD is “crucial to the ability of the Facility to operate

economically.” Mot. to Exp. at 1.

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 requirements. Accordingly,

materials that are not solid wastes are not subject to Illinois’ hazardous waste regulations, which

impose various obligations on persons who generate, treat, store, dispose, recycle, or transport

hazardous waste.

See

35 Ill. Adm. Code 722-726, 728. USEPA has authorized Illinois to

administer the hazardous waste program in this State.

See

40 C.F.R. 272.700, 272.701.

Generally, a solid waste is any discarded material.

See

35 Ill. 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 Ill. Adm. Code 721.103, 721,

Subparts C and D.

---

3

BRZ would like to use EAFD as a raw material feedstock for zinc production without

becoming subject to Illinois’ hazardous waste regulations. BRZ asks the Board to determine that

EAFD recovered from scrap steel with an electric arc furnace and to be used in BRZ’s LSXEW

process is not a solid waste.

Section 28.1(a) of the Environmental Protection Act (Act) (415 ILCS 5/28.1(a) (2004))

provides that “[a]fter adopting a regulation of general applicability, the Board may grant, in a

subsequent adjudicatory determination, an adjusted standard . . . .” Further, Section 28.1(b) of

the Act

(415 ILCS 5/28.1(b) (2004)) states that “in adopting a rule of general applicability, the

Board may specify the level of justification required of a petitioner for an adjusted standard

. . . .”

In the case of the Board’s hazardous waste regulations of general applicability (35 Ill.

Adm. Code 720

et seq

.), the Board specified the level of justification required of an adjusted

standard petitioner seeking to have material be deemed not a solid waste. Specifically, the Board

adopted provisions identical in substance to the USEPA solid waste determination regulations

(40 C.F.R. 260.30(c), 260.31(c)). Accordingly, Section 720.130 of the Board’s hazardous waste

regulations provides in part:

In accordance with the standards and criteria in Section 720.131 and the

procedures in Section 720.133, the Board will determine on a case-by-case basis

that the following recycled materials are not solid wastes:

***

c)

Materials that have been reclaimed but must be reclaimed further before the

materials are completely recovered. 35 Ill. Adm. Code 720.130.

BRZ claims that EAFD has been reclaimed but would be further reclaimed through

LSXEW for complete recovery. According to BRZ, such EAFD meets the requirements of

Section 720.131(c) of the Board’s hazardous waste regulations (35 Ill. Adm. Code 720.131(c))

and therefore is entitled to a Board determination that it is not a solid waste in this case. Section

720.131(c) reads as follows:

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

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 720.131(c).

Section 720.133 of the Board’s hazardous waste regulations (35 Ill. Adm. Code 720.133)

requires that the Board’s adjusted standard procedures be used for solid waste determinations

under Section 720.131(c). The Board’s adjusted standard procedural rules are set forth at 35 Ill.

Adm. Code 104.Subpart D.

PROCEDURAL HISTORY

BRZ filed its petition for an adjusted standard on June 30, 2006. The petition includes 26

exhibits (A-Z). Four of the exhibits (L, P, U, V) were claimed as trade secrets by BRZ and,

accordingly, the Board has limited access to the articles pursuant to 35 Ill. Adm. Code 130.

Along with the petition, BRZ filed a motion for expedited review. On July 20, 2006, IEPA filed

a recommendation in support of the Board granting the petition.

1

On August 4, 2006, the Board issued an order finding that BRZ had satisfied the

requirement of newspaper notice for adjusted standard petitions, a prerequisite to the Board

having jurisdiction over this proceeding. Section 28.1(d)(1) of the Act (415 ILCS 5/28.1 (2004))

and Section 104.408(a) of the Board’s procedural rules (35 Ill. Adm. Code 104.408(a)) require

petitioner to publish notice of the petition by advertisement in a newspaper of general circulation

in the area likely to be affected by the proposed adjusted standard. BRZ filed a certificate of

publication on July 19, 2006, documenting that the required notice of the petition was provided

in the

News-Democrat

, published in Belleville, St. Clair County, on July 11, 2006. Additionally,

in its August 4, 2006 order, the Board granted BRZ’s motion for expedited review. In the same

order, the Board also noted that BRZ had waived hearing.

Within 21 days after newspaper publication of an adjusted standard petition, any person

may file a request that a public hearing be held in an adjusted standard proceeding.

See

35 Ill.

Adm. Code 104.420(a);

see also

415 ILCS 5/28.1(d)(1). The Board received no requests for a

hearing on BRZ’s proposed adjusted standard.

In an August 17, 2006 order, the Board identified several informational deficiencies in

BRZ’s petition and directed BRZ to file an amended petition by September 15, 2006, to cure the

deficiencies. Further, the Board directed IEPA to file any amended recommendation within 21

days after IEPA received BRZ’s amended petition.

1

The Board cites BRZ’s June 30, 2006 petition as “Pet. at _”; the petition’s exhibits as “Exh. _ at

_”; BRZ’s motion for expedited review as “Mot. to Exp. at _”; and IEPA’s July 20, 2006

recommendation as “IEPA Rec. at _.”

---

5

On September 8, 2006, BRZ filed an amended petition. On September 18, 2006, IEPA

filed a response to BRZ’s amended petition, recommending that the Board grant the amended

petition. As permitted by the Board’s procedural rules (35 Ill. Adm. Code 104.418(d)), these

respective filings did not repeat the entire unchanged portions of BRZ’s original petition or

IEPA’s original recommendation.

2

In a September 21, 2006 order, the Board found that the

amended petition addressed the identified informational deficiencies and that with the filing,

BRZ had provided all of the information required for the requested solid waste determination.

See

35 Ill. Adm. Code 104.406, 720.131(c).

FACTS

BRZ Facility

BRZ has operated an electrolytic refinery for over 65 years in Sauget to produce zinc

products for various industrial and agricultural applications. Pet. at 2, 11-12. The facility is

located in St Clair County at 2401 Mississippi Avenue, near the Mississippi River. Am. Pet. at

7; Exh. L at 5. Historically, the primary feedstock for the refinery has been zinc concentrates

mined from deposits in Missouri and Tennessee. Pet. at 2. Also used as a feedstock has been

secondary zinc oxide materials recovered from EAFD through HTMR processing.

Id

. The latter

feedstock for BRZ was deemed not a solid waste by the Board pursuant to a previous adjusted

standard granted in

Big River Zinc, AS 99-3 (May 6, 1999).

Id

. Presently, BRZ has stopped

operations at the Sauget facility because it has been unable to find sufficient amounts of

feedstock at competitive prices to support ongoing refining.

Id

. at 2-3.

Zinc Uses and Markets

Zinc is an essential raw material used in galvanizing, chemicals, rubber tires, and alkaline

batteries, and for brass and die cast alloys, and plant, human, and animal health applications.

Pet. at 4. Galvanizing is zinc’s most common use, accounting for approximately 47% of the

metal’s global use.

Id

; Exh. A. Galvanizing, which retards corrosion, involves coating steel with

a thin layer of zinc that bonds to the steel’s surface. Pet. at 4; Am. Pet. at 3.

The price of zinc is based on supply and demand and is set by the London Metal

Exchange (LME), “the industry’s major trade and accreditation organization.” Pet. at 4. The

LME price of zinc was $0.87/lb or $1912/ton as of January 3, 2006, with the lowest price listed

for the last decade at $0.35.

Id

.; Exh. B. In 2002, the United States consumed 1,157,000 tons of

zinc, but produced only 237,000 tons. This domestic zinc demand has generally been satisfied

by imports from countries including Canada, Mexico, Peru, China, and Australia. Pet. at 4; Exh.

B.

2

The Board cites BRZ’s amended petition as “Am. Pet. at _”; and IEPA’s amended

recommendation as “IEPA Am. Rec. at _.”

---

6

Zinc Production

Generally, zinc is produced by (1) mining ores from primary zinc deposits and (2)

recycling steel scrap. Pet. at 4.

Primary Zinc Production and LSXEW

Zinc deposits occur naturally as small pods of mineralization, typically found with sulfur

as the simple sulfide mineral sphalerite. When a sufficient number of pods contain viable

quantities of ore, the pods are mined. Mined zinc ore deposits have an average grade of about 5-

6% zinc. Initially, the mined zinc ore is physically processed at the mine to separate the

sphalerite from the other ore constituents, creating a concentrate generally ranging from 52-59%

zinc. Pet. at 5; Exh. A; Exh. C; Exh. D at 4.2; Exh. E.

The zinc concentrate is shipped to electrolytic refineries to produce zinc metal. Pet. at 5.

In a conventional refinery, the zinc concentrate is first roasted to transform the zinc sulfite into a

crude zinc oxide. From the crude zinc oxide, zinc can be recovered by dissolution in dilute

sulfuric acid.

Id

. Precipitated impurities must be removed from the zinc-bearing solution, which

is accomplished by filtration. If the concentrate has less than approximately 40% zinc, removing

greater amounts of impurities may be uneconomical.

Id

. After purifying, electrowinning is the

last step, which involves “passing the solution through electrolytic cells where zinc is plated

from solution.”

Id

.

Some naturally-occurring zinc deposits contain not zinc sulfides but rather zinc oxides.

Zinc in these deposits generally “cannot be efficiently concentrated using known economic

beneficiation technologies and can also contain impurities that preclude conventional treatment.”

Pet at 5-6. Historically, these deposits have therefore been considered low-quality zinc feeds and

“typically uneconomic to extract.”

Id

. at 6. In 1999, however, a British mining and mineral

exploration company, Reunion Mining, PLC (Reunion Mining), “pioneered the use of a new

proprietary approach, LSXEW, for the recovery of zinc from non-sulfide deposits.”

Id

.

LSXEW, which can directly process a relatively impure feedstock without initial

concentration, involves:

the direct dissolution (“L” = Leaching) of ore in dilute sulfuric acid, without prior

concentration, and the subsequent purification of solutions by solvent extraction

(“SX”) before conventional metal recovery by electrowinning (“EW”). Pet. at 6.

The leaching and electrowinning steps in the LSXEW process are conventional

technologies. Solvent extraction technology, however, while well known for other metals (

e.g.

,

copper), has not been used much for zinc. Pet. at 6-8. Using a specially formulated organic

solution, the LSXEW solvent extraction method separates the zinc from the impure aqueous

solution to form a “high strength pure solution suitable for zinc recovery by electrowinning.”

Id

.

at 6-7.

---

7

Reunion Mining formed ZincOx Resources PLC (ZincOx) in 1999 to develop other

opportunities for applying the LSXEW technology, including its proposed use in recovering zinc

from EAFD. Pet. at 8. ZincOx developed and adapted the LSXEW process for zinc. For

example, Namibia’s Skorpion zinc deposit was believed to be uneconomic and so remained

undeveloped for 20 years.

Id

. However, with the use of the LSXEW process:

[T]he deposit became one of the lowest cost zinc operations and today operates as

the 10th largest zinc mine in the world. The zinc oxide ore from the mine has a

grade of only 10% and without further concentration is able to produce 145,000

tons of Special High Grade zinc metal per year.

Id

.; Exh. F.

Scrap Steel Recycling

In 2005, the steel industry in the United States recycled approximately 75 million tons of

ferrous scrap, over 80% of which was consumed in electric arc furnaces (EAFs). Pet. at 8; Exh.

G.

EAFs and EAFD.

EAF recycling of scrap steel begins by loading scrap metal and other

ingredients (

e.g.

, limestone, burnt lime, iron ore, and ferro-alloy additives) into a charge bucket,

which is conveyed to a furnace. A crane dumps the bucket contents into the EAF, after which

the furnace roof is lowered and then the electrodes are lowered to “strike an arc between the

electrodes and through the scrap,” commencing the melting stage. Pet. at 8-9.

Scrap is remelted in EAFs at approximately 1,400ºC. Pet. at 9. Most scrap is metallic

iron, which is recycled into steel. There are, however, other materials that are removed during

scrap recycling:

More volatile elements are essentially boiled off and carried into the flues

together with fine particles of iron oxide. Air mixes with the off-gasses and the

volatile impurities form simple oxides that have high melting points and

precipitate as a fine dust. The precipitated dust is generated during: (1) charging

of scrap, (2) tapping of furnaces, (3) pneumatic injection of additives, (4) oxygen

blowing, and (5) meltdown/refining periods. The dust together with the iron

oxide particles are filtered and recovered as dry EAFD or scrubbed with water

and collected as a filter cake.

Id

.

Zinc is present in scrap iron. During charging, the scrap “hits the molten iron” and the

zinc immediately boils off, with the resulting vapor recombining with oxygen to form zinc oxide,

which is collected as a major EAFD constituent in the baghouse. Pet. at 9-10. Unlike HTMR,

EAF charging is a “violent, almost explosive, activity” as scrap touches molten metal at 1,400ºC.

The violent reaction causes iron oxide particles on the scrap metal surface to be “blown off” and

recovered in the baghouse.

Id

. at 10.

EAF melting of scrap steel concentrates zinc in EAFD. Pet. at 10. Scrap steel contains

approximately 0.28% zinc; that zinc content is concentrated about 70 times during remelting

(fuming) in the EAF.

Id

.; Exh. H. The zinc in EAFD comes from the zinc of galvanized scrap.

---

8

Am. Pet. at 3. Zinc concentrations in EAFD typically range from 15% to 24% but may go up to

35%, which is comparable to mined ore. Pet. at 10; Exh. I; Exh. J, Table 1; Am. Pet. at 4. The

grade of zinc in EAFD varies from one mill to another because the scrap feed blend used at the

mills differs depending on what final products the individual steel mill produces and because the

scrap recycling process and equipment vary throughout the industry. Am. Pet. at 3-4.

Managing EAFD.

EAFD is not an attractive direct feed for conventional zinc smelters,

especially because of its halide (chloride and fluoride) content, which would cause serious

problems during electrowinning. Pet. at 10-11. These halides cannot be removed in

conventional zinc refineries.

Id

. at 11. Due to impurities in EAFD, HTMR units like the Waelz

Kiln have been used to upgrade EAFD so that EAFD may be accepted by electrolytic refineries.

Id

. In the HTMR process, EAFD is:

mixed with coal and fed into a horizontal rotary kiln . . . . The coal ignites,

raising the temperature to about 1,100ºC. The coal . . . convert[s] zinc into metal,

which, at 1,100ºC, immediately boils. The zinc vapor escapes from the solid

material and reacts with the oxygen in the air to re-form zinc oxide. The zinc

oxide condenses as a solid that is collected in bag filters as the final product.

Other volatile impurities act in a similar fashion to zinc, but the iron is left behind

so that the resultant “fume” is enriched in zinc, as well as impurities including

chlorides and fluorides.

Id

.

BRZ Operations Historically

BRZ is owned by Korea Zinc Co., Ltd. (Korea Zinc), but is in the process of being

acquired by ZincOx. Pet. at 15. For more than 65 years, BRZ’s Sauget facility has been

producing zinc using electrowinning refining.

Id

. at 11-12. Originally, the facility was designed

to process exceptionally pure zinc ore concentrates found in regional mines.

Id

. at 12; Exh. K,

Affid. of BRZ President George Obeldobel at ¶ 3. BRZ has also used HTMR-processed EAFD

concentrates. Pet. at 12. BRZ has ultimately recovered zinc metal by electrolysis from zinc

sulfate solution using conventional technology: roasting; leaching; partial neutralization;

filtration; purification; and electrowinning.

Id

. at 12-13. The resulting zinc sheets, or cathodes,

which are 99.995% zinc quality, are melted, alloyed, and cast as ingots in sizes required by

customers.

Id

. at 13-14.

To upgrade the Sauget facility’s processing capabilities, BRZ has invested over $80

million in capital improvements over the last eight years. Pet. at 14. During full production, the

facility had approximately 300 employees. BRZ has produced zinc ingots of 99.995% purity,

equaling the highest quality recognized by the LME (Special High Grade or SHG).

Id

.; Exh. K,

Obeldobel Affid. at ¶¶ 4, 5. Along with ingots, the facility has produced alloys, zinc powder for

batteries, zinc sulfate monohydrate to use as a micronutrient in animal feed and fertilizer, and

other zinc compounds. Pet. at 14. There is a strong demand for such zinc products around the

St. Louis, Missouri area. The United States is a major net importer of zinc metal.

Id

.

Regional zinc mines in the United States that have historically provided BRZ with

feedstock “are now largely exhausted and have almost all closed.” Pet. at 15; Exh. A. Sufficient

---

9

quantities of available concentrates are too far from the Sauget facility to be economical. Due to

an “exceptional” worldwide shortage of zinc sulfide concentrates, it has been difficult for Korea

Zinc to source sufficient concentrate for the Sauget operation. Pet. at 15. Quantities of available

HTMR-processed zinc concentrate are also “finite and limited.”

Id

.

BRZ needs to operate at “near full capacity” to run the Sauget facility economically.

There is, however, only enough domestic feed for approximately 40% of the required capacity.

Pet. at 15. The Sauget facility has consequently ceased operating and all but 20 employees have

been laid off or terminated.

Id

.; Exh. K, Obeldobel Affid. at ¶¶ 6, 7.

Proposed LSXEW Operation

Under ZincOx’s ownership, BRZ plans on spending over $40 million to restart zinc

operations at the Sauget facility using the ZincOx LSXEW process. Pet. at 15. LSXEW can

process a wider range of feedstock, including oxide ores, oxide concentrates, and EAFD.

Id

.

Numerous steel mills operating within the region generate EAFD. EAFD is plentiful and

available to be sourced from within the United States and is “high grade (when compared to

many primary zinc oxide ores).”

Id

. at 16. BRZ predicts that using EAFD as feed in production

operations “as a supplement to the zinc sulfide concentrate and HTMR concentrate will resolve

the Facility’s raw material deficiencies, allowing the Facility to operate profitably.”

Id

.

LSXEW is designed to process these materials directly, without prior concentration.

Impurity levels present in feedstocks like EAFD are not expected to negatively impact

production economics because the solvent extraction system, as detailed below, is more efficient

at purifying zinc sulfate solutions than are conventional processes used at electro-refineries. Pet.

at 16.

As part of the proposed new LSXEW operation at the Sauget facility, BRZ plans to

install new receiving, leaching (L), and solvent extraction (SX) equipment, but use the existing

electrowinning (EW) plant. Pet. at 16. Both the existing circuit and the proposed LSXEW

process involve leaching,

i.e.

, zinc oxide dissolution in dilute sulfuric acid.

Id

. The zinc feed

into the leaching process for LSXEW, however, is expected to primarily be EAFD, while the

conventional operation’s feed has been zinc oxide calcine or HTMR concentrate. For both the

new and old circuits, leaching would be followed by partial neutralization to “precipitate iron

ahead of filtration to produce a clarified liquor suitable for chemical purification.”

Id

. at 16-17.

The purification step is the primary difference between the proposed LSXEW process

and the existing conventional process of zinc refining. Pet. at 17-18. With LSXEW, purification

would be performed by solvent extraction, rather than the multi-stage filtration step of the

existing system:

In conventional purification, impure zinc sulfate solutions are treated so as to

remove sequentially those impurities that would interfere with or contaminate the

product of zinc electrolysis. The LSXEW process, however, extracts the zinc

from the impure solution leaving behind all the other elements (whether

deleterious or benign).

Id

.

---

10

In that sense, solvent extraction purifies more efficiently and comprehensively than

conventional purification. For example, halides, which are problematic for the conventional

process, are left behind in the solvent extraction process when the zinc is extracted into the

electrolyte. Pet. at 18. With both the LSXEW and conventional processes, the respective

purification steps would be followed by the refinery’s zinc electrowinning circuit, which, in turn,

is followed by the melting and casting of zinc.

Id

. at 17-18.

BRZ plans to continue operating the traditional extraction method for available zinc

concentrates produced from sulfide ore and EAFD from HTMR processing. Pet. at 18. BRZ

estimates that these sources will provide approximately 30,000 tons per year of feedstock,

equivalent to one-third of the feed used for the operation before it was suspended. For LSXEW,

BRZ intends to build a separate leaching and purification system parallel to the conventional

process. However, the zinc-bearing solutions from both the LSXEW process and the traditional

extraction process would be fed into the same electrowinning circuit. That electrowinning

circuit, which currently exists at the plant, is where the zinc would be electrodeposited on

cathodes before being periodically removed, melted, and cast.

Id

.; Exh. L.

With the LSXEW technology and a return to full operation, BRZ anticipates that 30,000

tons of high purity zinc metal (99.995% zinc) will be produced from EAFD annually and that the

Sauget facility will employ approximately 300 people. Pet. at 19.

As proposed, the LSXEW process would generate two waste streams. First, wastewater

would be generated, which BRZ expects will be pretreated in a new on-site plant, with the

resulting effluent discharged to the local publicly owned treatment works (POTW), American

Bottoms Regional Wastewater Treatment Facility. BRZ has a permit addressing discharge of the

wastewater effluent to the POTW. Pet. at 20-21; Am. Pet. at 4-5. This on-site wastewater

pretreatment would also generate wastewater residue, which BRZ proposes to send to an area

landfill, though testing is underway to see if the residue may be used to produce a gypsum

product for use in the cement industry. Am. Pet. at 4-5.

Second, the LSXEW process, specifically the leaching phase, would create a filter cake

residue, which BRZ plans to “manage[] as a newly generated waste in compliance with all

RCRA regulations.” Pet. at 21-22; Am. Pet. at 6. Specifically, BRZ intends that:

The [filter cake] residue will be managed as nonhazardous waste or

characteristically hazardous waste, as appropriate after characterization. If the

residue is hazardous, on-site de-characterization [

i.e.

, treatment in accumulation

tanks or containers] may be performed [to render the material non-hazardous].

The residue will be transported off-site to a properly permitted landfill in units

such as rail cars, roll-off boxes, dump trailers, and/or dump trucks, also in

accordance with applicable laws and regulations. Pet. at 21; Am. Pet. at 6-7.

Under BRZ’s plan, air pollution controls would be used for the LSXEW process itself.

Am. Pet. at 5. The leaching tanks, which may produce acid mist, would be covered and vented

to an alkaline venture scrubber to remove the fumes.

Id

. In place of traditional “open tank”

---

11

solvent extraction systems, the proposed solvent extraction system uses “new technology that

totally encloses the process.”

Id

. at 6. BRZ expects therefore that the only organic material

emission from the SX system would be “from smaller pump tanks and storage tanks, which are

closed vessels that vent to a thermal oxidizer emission control device.”

Id

.

BRZ proposes that a covered conveyor system would be used to transfer LSXEW filter

cake and wastewater treatment residue to a loading area for off-site shipment, which area would

have baghouses. Am. Pet. at 6.

EAFD Sources and Management

BRZ has allied itself with Envirosafe Services of Ohio, Inc. (ESOI) to access the EAFD

market. Pet. at 19. ESOI is one of the largest companies in the United States for managing,

treating, and disposing of EAFD. ESOI has contracts with steel mills for EAFD management.

Id

.; Exh. M.

BRZ plans to accept at the facility only that EAFD containing a sufficient quantity of

recoverable zinc, as determined by a pre-acceptance evaluation. The minimum zinc

concentration in EAFD that could be economically recycled at any given time will be affected by

the market price for zinc. Pet. at 19.

BRZ has established a two-step process “to ensure that EAFD received at the BRZ

Facility is suitable for processing in the LSXEW zinc recovery system.” Am. Pet. at 1, 4. First,

BRZ plans to solicit EAFD only from sources that demonstrate that their EAFD contains zinc

concentrations of acceptable grade. For this first step, BRZ intends to review existing historical

data from ESOI’s customer base. For potential suppliers lacking existing data, BRZ plans to

have “samples . . . collected over a sufficient period of time prior to any EAFD being shipped to

BRZ.”

Id

. at 1-2.

The second step in BRZ’s planned verification process is to sample incoming EAFD “to

confirm ongoing suitability of a supplier’s EAFD material for recycling at the BRZ Facility.”

Am. Pet. at 2. BRZ intends to regularly collect and analyze samples during the unloading of

EAFD. BRZ plans to use X-ray fluorescence or a similar method on the collected samples “to

obtain an elemental fingerprinting and determine the corresponding zinc concentrations of the

EAFD upon receipt.”

Id

. BRZ proposes to regularly review the sample results and to

discontinue the use of an EAFD source if that source’s “grade becomes non-economically

recoverable.”

Id

. Under BRZ’s plan:

Any EAFD shipped from a nonconforming source for any reason would be

rejected through the hazardous waste manifest process either to an alternate

facility or back to the generator. Given ESOI’s role in the supply of the EAFD, it

is anticipated that many of the rejected loads would be redirected to the ESOI

facility in Oregon, Ohio.

Id

.

BRZ proposes to institute recordkeeping procedures to document its pre-acceptance verification

and sampling program and provide IEPA with requested access to those records.

Id

. at 3.

---

12

BRZ intends to have EAFD delivered to its facility by highway or rail and “managed as a

regulated RCRA hazardous waste until it arrives at the Facility.” Pet. at 19. According to BRZ’s

plans, the trucks and rail cars containing the EAFD would be “kept closed at all times except for

sampling and unloading.”

Id

. Further, BRZ intends to develop a contingency plan, training plan,

inspection plan, and a partially reclaimed product analysis plan in accordance with RCRA

Subtitle C guidance.

Id

. at 19-20.

BRZ plans to redesign and renovate or rebuild the facility’s existing raw material

unloading structure “to provide an enclosure that will prevent releases during unloading.” Pet. at

20;

see also

Exh. N. As proposed, the facility would have two segregated unloading areas, one

for trucks and the other for rail cars. Pet. at 20. BRZ intends that:

The unloading areas will operate with the doors closed where feasible and with no

visible emissions from the building. Both areas will be operated under negative

air pressure with air flow being managed through a baghouse cleaning system so

as to avoid dust emissions. *** The air pollution control system for the off-

loading system will be permitted and the collected dust will be recycled back into

the slurry tank.

Id

.; Am. Pet. at 5.

As proposed, the EAFD unloading, blending, and slurrying would take place in a building

maintained under negative pressure and vented through a baghouse. Am. Pet. at 5. BRZ plans to

design and operate the Sauget facility to avoid storing any EAFD. Pet. at 20. Once the truck or

rail car transporting the EAFD is inside the unloading structure, BRZ intends to have the EAFD

emptied directly from the rail car or truck onto a screw conveyor leading to an adjacent slurry

tank. The EAFD would be slurried in the tank with a dilute acid solution, beginning the leaching

phase described above.

Id

.

Market Demand for BRZ Products

The LSXEW process, as proposed, would have four outputs: the two waste streams

identified above (

i.e.

, wastewater and filter cake residue), which have a “negative value”; plus,

two products, namely, zinc metal and cadmium/copper “cement.” Pet. at 21. Approximately

500 tons of the cement, which results from EAFD treatment, is expected to be produced

annually. BRZ has regularly sold products similar to the cement to companies that recover

valuable copper and cadmium.

Id

. at 21-22.

Under BRZ’s plan, zinc metal would be produced mainly as ingots of varying sizes and

shapes depending upon customer needs. Pet. at 21. The LSXEW process produces zinc ingots

of 99.995% purity, the highest quality recognized by the LME.

Id

. Along with ingots, BRZ

intends to continue producing alloys, zinc powder for batteries, zinc sulfate monohydrate as a

micronutrient for animal feed and fertilizer, and other zinc compounds. The LSXEW process

would not change the zinc products produced by BRZ.

Id

.

As noted, the United States is a significant net importer of zinc and demand is high in the

St. Louis area. Pet. at 22. BRZ is confident that all zinc it produces from EAFD can be sold to

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13

BRZ’s two largest customers, Steel Dynamics and U.S. Steel.

Id

.; Exh. K, Obeldobel Affid. at ¶

8. Further, the LME is obligated to purchase available zinc from any supplier at prevailing

market rates. Pet. at 22.

DISCUSSION

In this portion of the Board’s opinion, the Board first gives an overview of BRZ’s

requested solid waste determination and IEPA’s recommendation. Second, the Board discusses

whether EAFD is a solid waste. Following that is a discussion of whether the provision of the

Board’s regulations under which BRZ seeks this determination is available in this case. Next,

the Board evaluates each of the factors upon which this determination is based. Lastly, the

Board discusses the conditions that apply to this determination.

Overview of BRZ Request and IEPA Recommendation

BRZ states that it filed an adjusted standard petition for a solid waste determination in

order to further its efforts to restart production at the Sauget refinery. Pet. at 3. The material at

issue in BRZ’s first adjusted standard, AS 99-3, was secondary zinc oxide, which is created by

processing EAFD through an HTMR unit before introducing the material into the electrolytic

refining process as a feedstock. In contrast, with the present adjusted standard request, BRZ

wishes to use EAFD

directly

as feed material, without any secondary concentration by HTMR.

Id

.

BRZ proposes to retrofit the Sauget facility with the new LSXEW technology so as to

allow the refinery:

to utilize non-sulfide feed materials, including EAFD reclaimed at steel mills, as a

substitute raw material feedstock in place of some or all of the Facility’s

traditional raw material supplies of zinc concentrates from mined ore and HTMR.

By replacing approximately one-third of the Facility’s production capacity with

zinc from EAFD using the critical LSXEW technology, BRZ is confident that it

can restart the refinery and return its Sauget Facility operations to profitability.

Pet. at 3.

BRZ seeks the new adjusted standard to be able to so use EAFD without becoming

subject to various hazardous waste regulations. Pet. at 3. Specifically, BRZ is requesting “relief

from the applicability of the hazardous waste regulations at 35 Ill. Adm. Code Part 720

et seq

. to

the EAFD that BRZ will receive at the Facility and use as feedstock in the LSXEW zinc

recycling process.”

Id

. at 38.

According to BRZ, if it had to comply with the generally applicable rules, the residues

generated at the facility by the LSXEW process would have to be disposed of as K061-listed

hazardous waste (at approximately $135 per ton on average) as opposed to a nonhazardous waste

---

14

(at approximately $35 per ton on average).

3

Pet. at 38, 40; Exh. Y; Exh. Z. BRZ maintains that

such additional disposal expenses could “imperil[] the viability of the project and the overall

operations of the refinery itself.” Pet. at 39, 40. In addition to these expenses, continues BRZ, if

it does not receive the requested adjusted standard:

EAFD received for recycling in the LSXEW process would continue to be

classified as a hazardous waste. Accordingly, despite the fact that BRZ is a

production facility, RCRA hazardous waste obligations would apply to BRZ’s

management of its raw material feedstock, EAFD.

Id

.

BRZ asserts that because of the physical and chemical similarities between non-sulfide

zinc ore and EAFD and the LSXEW’s ability to use EAFD as feed to produce zinc products,

BRZ is entitled to a determination that EAFD received at the Sauget facility is not a solid waste.

BRZ insists that such EAFD is instead a recycled material that has been reclaimed but must be

reclaimed further before the material is fully recovered. Pet. at 22, citing 35 Ill. Adm. Code

720.130(c).

BRZ maintains that the relief it seeks through its adjusted standard petition for a solid

waste determination is narrow. Pet. at 3. According to BRZ, if the Board grants the adjusted

standard, the “requested relief would apply to EAFD only upon receipt at the BRZ facility, and

solely for BRZ’s use as a raw material feedstock for the new LSXEW process.”

Id

. BRZ states

that its requested solid waste determination “would not affect the applicability of RCRA

hazardous waste management requirements to the EAFD prior to delivery at BRZ.”

Id

.

Specifically, BRZ proposes that the requested solid waste determination would “take effect once

any shipment of EAFD enters the gate and is physically present on the BRZ property.” Am. Pet.

at 3. Further, BRZ would still be responsible, BRZ continues, for waste management

requirements that apply to wastes generated at the Sauget facility. Pet. at 3.

IEPA recommends that the Board grant BRZ’s requested adjusted standard “because the

Petition limits the determination that [EAFD] is not a solid waste to those instances where it is

introduced into the [LSXEW] process as a raw material.” IEPA Rec. at 1;

see also

IEPA Am.

Rec. at 2. In its recommendation, IEPA emphasizes that LSXEW:

is used to process zinc ores and will be used at a manufacturing facility that was

developed and operated specifically for the refining of zinc and zinc compounds.

The resulting product is indistinguishable from products made with virgin ores.

IEPA Rec. at 1-2.

Regulatory Status of EAFD

Section 720.131(c) allows the Board to determine that certain materials that would

otherwise be solid wastes are not considered solid wastes under particular circumstances.

3

This statement by BRZ assumes that if the adjusted standard is granted, the LSXEW residue

disposed of by BRZ would not be characteristically hazardous waste. Pet. at 39, 40.

---

15

Therefore, the Board first must determine that EAFD 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)(1). 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 “sludge” listed in Section 721.132 is recycled by being “reclaimed,” it is a solid

waste.

See

35 Ill. Adm. Code 721.102(c)(3), 721.Appendix Z.

The Board finds that EAFD fits within this category,

i.e.

, a listed sludge being reclaimed.

A “sludge” includes a “solid . . . waste generated from [an] . . . air pollution control facility . . . .”

35 Ill. Adm. Code 721.101(c)(2); 35 Ill. Adm. Code 720.110. EAFD is generated from an air

pollution control facility (

i.e.

, the emission control device of the EAF) and is therefore a sludge.

In addition, EAFD is “listed” in Section 721.132 under “iron and steel production wastes” and

assigned USEPA hazardous waste number K061: “Emission control dust/sludge from the

primary production of steel in electric furnaces.” 35 Ill. Adm. Code 721.132 (K061 has Hazard

Code “T” for toxic waste, 35 Ill. Adm. Code 721.130(b)).

4

A material is “reclaimed” if it is:

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 721.101(c)(4).

When USEPA promulgated the federal regulation upon which Section 720.131(c) 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 (Jan. 4, 1985). In the context of BRZ’s petition, the Board finds that EAFD is

being recycled by reclamation.

Because EAFD is a listed sludge that is recycled by being reclaimed, it is a solid waste.

Because EAFD is a solid waste that is also a hazardous waste, the generation, transportation,

treatment, and other handling of EAFD is subject to the hazardous waste regulations for those

activities.

See

35 Ill. Adm. Code 721.103(a)(2)(B), 721.130(a), 722-726, 728.

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 (Jan. 4, 1985). Section 720.131(c) provides an exception to

4

BRZ notes that USEPA’s proposed hazardous waste recycling rule (68 Fed. Reg. 61558

(Oct. 28, 2003)) would exclude EAFD from the definition of solid waste where the EAFD is

recycled by being reclaimed within the same industry. Pet. at 34, n.1.

---

16

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 (Jan. 4, 1985).

The Board finds that EAFD destined for the LSXEW process at BRZ’s Sauget facility

has been initially but not fully reclaimed. EAF processing increases the eventual recovery of

zinc values from scrap metal. However, EAFD requires further processing to recover end

products. In this case, that further processing is LSXEW, which, as proposed, would directly

accept EAFD as feed. The LSXEW refining process recovers a special high-grade quality zinc.

The Board finds that Section 720.131(c) is available here because once zinc-containing scrap has

been processed in an EAF to create EAFD for the LSXEW unit, there has been initial but not

complete reclamation.

Section 720.131(c) Factors

The Board must determine whether EAFD, as proposed to be used by BRZ at the Sauget

refinery, is commodity-like based on the Section 720.131(c) factors. BRZ maintains that such

EAFD is “commodity-like when received by BRZ for recycling.” Pet. at 22. The USEPA

preamble to the federal rule analogous to Section 720.131(c) provides that the Board “may weigh

these factors as [it] sees fit, and may rely on any or all of them to reach a decision.” 50 Fed. Reg.

614, 655 (Jan. 4., 1985). Considering the factors, the Board finds that EAFD is commodity-like

under the specific circumstances of this case. The Board now addresses the factors in turn.

The Degree of Processing the Material has Undergone and the Degree of Further

Processing That is Required

In explaining the federal counterpart to Section 720.131(c)(1), USEPA states that “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). BRZ asserts that, given the LSXEW innovation, the

EAFD that BRZ would receive “has undergone sufficient reclamation such that it constitutes a

partially reclaimed material that can be used directly as an economic feedstock in the LSXEW

refining process.” Pet. at 23.

A primary feedstock for EAFs in the production of new steel is scrap steel, which

contains zinc because over 90% of steel contains a protective zinc coating,

i.e.

, is galvanized.

Pet. at 23. In an EAF, zinc is separated from scrap steel and concentrated, generating

concentrated zinc oxide in the form of EAFD. The high temperature EAF processing at steel

mills “results in dramatically increased zinc concentrations from scrap steel to the EAFD.”

Id

.;

Exh. H. BRZ states that it would accept EAFD only from mills that use zinc-containing feeds

such as scrap steel. Pet. at 23.

---

17

The process of zinc reclamation by EAF is fundamentally the same as that used by

HTMR, the initial reclamation step involved in AS 99-3. Both processes involve heating, zinc

volatilization, zinc oxidation, and baghouse collection. EAF processing actually “increases zinc

concentrations by a factor of 70 times as opposed to the modest factor of 3 times for HTMR.”

Pet. at 23-24. For example, if the grade of zinc in EAF feedstock is 0.30%, the resulting EAFD

would have a zinc grade of approximately 20% (

i.e.

, a concentration factor of 67), which EAFD

would in turn serve as feedstock for an HTMR. HTMR (Waelz Kiln) processing of that EAFD

would produce a material with a zinc grade of about 58% (

i.e.

, a concentration factor of 3).

Id

. at

24.

Because of past limitations of EAFD reclamation technologies, industry has historically

viewed EAFD as necessarily requiring either off-site disposal or extensive processing to remove

impurities before it could be considered commodity-like. Pet. at 24-25. Applying the LSXEW

process to zinc refining “fundamentally alters this analysis” by allowing EAFD to be introduced

directly into a zinc refining operation “as a raw material supplement or replacement for the non-

sulfide zinc ores.”

Id

. at 25.

The Board finds that when considered in light of the LSXEW processing that EAFD

would undergo, EAF processing is substantial. The Board therefore finds that this factor

supports BRZ’s claim that EAFD in this context is commodity-like.

The Value of the Material After It Has Been Initially Reclaimed

USEPA states 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). In addressing Section

720.131(c)(2), BRZ concedes that “[v]aluation is an elusive issue when dealing with EAFD

which, absent reclamation, must be disposed of as hazardous waste.” Pet. at 25. BRZ maintains,

however, that EAFD’s value to BRZ is “clearly significant” because:

the availability and use of this [EAFD] feedstock in the LSXEW transforms the

BRZ operation from a shuttered plant to a viable enterprise, directly employing

300 people.

Id

.

EAFD has a grade of approximately 20%, which represents a contained-zinc value of

$460 per ton of EAFD based on the current zinc price of $2,300 per ton. Pet. at 25. In

comparison, Skorpion mine ore has a grade of 10% zinc and a corresponding contained-zinc

value of $230 per ton of ore,

i.e.

, roughly half that of EAFD.

Id

. BRZ asserts that the Skorpion

mine ore “is of sufficient grade (value) to provide a very attractive investment return on the $450

million capital development cost for that project.”

Id

.

According to BRZ, there is “strong competition for [EAFD] among the recycling

companies.” Pet. at 25. Currently, EAFD is valued for its zinc content through recycling by

HTMR, an established reclamation technology that uses about 60% of all EAFD generated in the

United States.

Id

. Now, however, BRZ states, EAFD is valuable without additional HTMR

processing:

---

18

Because of the revolutionary LSXEW process, EAFD, for the first time, is a

valuable material in its initially reclaimed form when delivered to BRZ as a

substitute for natural ores and concentrates. The consequence of this technology

is the creation of a new market for a material that would otherwise need to be

disposed or further processed before being transformed from an inherently waste-

like material into a usable feedstock.

Id

. at 26.

Further, having EAFD as a feedstock, according to BRZ, would “dramatically reduce[] the costs

of the raw materials utilized at the BRZ Facility,” as well as “resolve[] concerns regarding the

availability of sufficient raw material supplies.”

Id

.

BRZ acknowledges that, as with ore deposits, “not all zinc bearing material will be

economical to treat.” Pet. at 26. The viability of EAFD as a feedstock for LSXEW will depend

on several factors, including the zinc price, operating costs, and the EAFD’s zinc grade.

Id

.

Accordingly, the minimum zinc grade of EAFD that BRZ can economically process might vary

over time.

Id

. The feasibility study for the Skorpion mine concluded that a minimum grade of

3.81 to 3.91% zinc in ore was needed over the life of the open pit.

Id

. at 26-27; Exh. D at 7.2.2.

BRZ contemplates having a minimum acceptable grade for EAFD addressed in the EAFD supply

agreement with ESOI. Pet. at 27; Exh. L; Exh. P. Further, BRZ plans to review EAFD source

data before delivery, as well as sample incoming loads, to help ensure that EAFD received by

BRZ is suitable for LSXEW processing. Am. Pet. at 2.

IEPA maintains that before being introduced into the LSXEW process, the EAFD “has no

market value and may still be sent for disposal.” IEPA Rec. at 2. However, IEPA states, EAFD

is a “raw material when introduced into the LSXEW process.”

Id

.

The Board finds that EAFD, used as a feedstock for BRZ’s LSXEW process, has

significant value.

The Degree to Which the Initially-Reclaimed Material is Like an Analogous Raw Material

In discussing the federal factor corresponding to Section 720.131(c)(3), USEPA states

that “[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 commoditylike.” 50 Fed. Reg. 614, 655

(Jan. 4, 1985). In BRZ’s view, this factor calls for a two-part analysis:

[F]irst, similar constituents must be present to those found in the raw material,

and second, the material must not contain significant amounts of hazardous

constituents not found in the raw material. Pet. at 27.

BRZ proposes using EAFD as a feedstock “to replace mined sources of zinc.”

Id

.

BRZ states that “no two zinc oxide ores are the same” because their formation in nature

involves “complex interactions between other matter occurring in the deposit and ore minerals,

air, water, and host rock chemistry.” Pet. at 27. Ultimately, continues BRZ, EAFD constituents

---

19

and composition are “within the range generally found in naturally occurring zinc deposits” and

EAFD therefore serves as an “analogous feed substitute for zinc oxide ores.”

Id

.

Below is a comparison of raw zinc sulfide ore, zinc sulfide concentrates, zinc oxide ore,

and EAFD:

Element

Zinc Sulfide

Ore

(% by weight)

Zinc Sulfide

Concentrate

(% by weight)

Zinc Oxide Ore

(% by weight)

EAFD Oxides

(% by weight)

Zinc

2.5-10

47-60

7.5-25

15-24

Lead

0.5-5

0.75-15

0.5-6

2.6-5

Cadmium

0.005-0.1

0.1-1

0.05-0.50

0.03-0.07

Iron

25-50

1-10

1.5-15

19-32

Copper

0.1-1.5

0.1-2.5

0.01-0.15

0.2-0.4

Sulfur

20-50

30-35

0.2-3.5

1.8-2.2

Arsenic

0.001-0.25

0.01-0.15

0.05-1.0

<0.001-0.10

Calcium

0.1-5

0.01-1

1-20

4-30

Silica

0.5-5

0.1-5

2.5-15

1.4-2.1

Magnesium

0.5-5

0.01-1

0.1-7.5

1.5-2.6

Aluminum

0.5-5

0.05-0.20

1-5

0.2-0.5

Sodium

0.1-0.5

0.01-0.06

0.01-0.20

0.3-1.4

Chloride

N/A

0.01-0.05

0.05-0.75

0.6-1.5

Fluoride

N/A

0.01-0.02

0.02-0.10

0.2-0.4

Pet. at 27-28; Exh. K; Exh.Q; Exh. R; Exh. S.

The following compares zinc concentrations in EAFD with zinc oxide ores from around

the world:

Source

Location

Zinc

Concentration

Skorpion

Namibia

10%

Mae Sot

Thailand

22%

Jabali

Yemen

10%

New Jersey

United States

20%

Shaimerden

Kazakhstan

24%

Remac

Canada

10%

Sierra Mojada

Mexico

12%

EAFD

United States

20%

Pet. at 19; Exh. J; Exh. T.

According to BRZ, LSXEW allows zinc in EAFD to be reclaimed for high-quality zinc

production “using ultimately the same electroplating technology as is used for the production of

zinc derived from sulfide concentrate.” Pet. at 29. BRZ further states that EAFD is the “only

locally abundant source of zinc feedstock to the LSXEW process,” which new technology allows

EAFD to be used like an analogous raw material.

Id

. The Board finds that EAFD, for purposes

---

20

of the proposed LSXEW process, is very similar to and can be substituted for mined sources of

zinc.

The Extent to Which an End Market for the Initially-Reclaimed Material is Guaranteed

In discussing the federal version of the Section 720.131(c)(4) factor, USEPA states:

If the [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).

As BRZ notes:

This factor focuses in large part on ensuring that the material will not be stored

for significant periods of time and on avoiding the potential risk that such

stockpiling could impose. Pet. at 30 (citing 67 Fed. Reg. 52617, 52622

(Aug. 13, 2002)).

BRZ states that its facility will be designed “only to accept quantities of EAFD that can

be immediately processed.” Pet. at 30. BRZ assures that “[n]o storage of EAFD prior to

entering the production process will be conducted at the Facility.”

Id

. BRZ adds that there is a

strong market for the zinc ingots to be produced, noting that the United States is “a net importer

of zinc because domestic production is inadequate to meet demand.”

Id

. Moreover, BRZ

continues, the most common domestic application of zinc is in the galvinzation of steel:

Since there are a large number of steel mills located within a reasonable distance

of BRZ, the partially reclaimed zinc in EAFD can be obtained from those mills,

fully reclaimed at BRZ, and sold back to the very industry from which it was

obtained.

Id

.

According to BRZ, other routine uses for zinc, including battery powder, reducing agents, die

cast and brass mill applications, and zinc oxide for rubber tires, ceramics, and additives in paint,

and plant, human, and animal health products, “provide a long term guarantee for the continued

market demand.”

Id

.

BRZ states that during its long operating history, it has always been able to find markets

for its products, and maintains that its “customer base remains strong and viable.” Pet. at 30;

Exh. K. The problem for the Sauget facility, BRZ asserts, has instead been ensuring that its

processing operations be conducted cost-effectively so that facility operations remain profitable.

Pet. at 31. Traditionally, according to BRZ, the largest cost it has faced has been for raw

materials, typically costing 50 to 70% of the value of BRZ’s products: “With the introduction of

the LSXEW process and the expanded use of EAFD as raw material feed, the BRZ operation

becomes financially viable.”

Id

.

---

21

Additionally, zinc, like other internationally traded metals, is bought and sold through the

LME. Pet. at 31. As BRZ explains, the LME guarantees to buy zinc at its daily quoted price,

helping to smoothe out “uncharacteristic short term supply/demand variability” and create price

stability.

Id

. BRZ accordingly concludes that there will “always be a buyer for BRZ’s

production because of the purity of the end product produced by the LSXEW/electrowinning

process (99.995% Zn).”

Id

.

Considering BRZ’s planned in-take and use of EAFD in the LSXEW process, as well as

the demand for zinc in the United States, BRZ’s customer base, and the availability of the LME,

the Board finds that this end-market factor weighs in favor of finding that such EAFD is

commodity-like.

The Extent to Which the Initially-Reclaimed Material is Handled to Minimize Loss

USEPA states that the “more carefully a material is handled, the more it is

commoditylike.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). In addressing the Section 720.131(c)(5)

factor, BRZ asserts that because EAFD is similar to ore materials that are often too expensive as

feedstock, “BRZ has an economic incentive to properly manage the EAFD throughout the

system.” Pet. at 31. According to BRZ, because zinc in EAFD is “by far the greatest source of

revenue (greater than 90%) from the new facilities to be installed” at the Sauget site, “its value is

critical and loss reduction is paramount in exactly the same way as it would be for any

conventional mining or refining operation.”

Id

. at 33. Simply put, it is in BRZ’s financial

interest not to lose the material: if BRZ loses EAFD, it has less feedstock for the LSXEW.

BRZ also emphasizes that its cooperative arrangement with ESOI “will ensure proper

handling of EAFD and management of process residues.” Pet. at 31-32. ESOI, along with its

affiliated company Conversion Systems, Inc., has over 12 years of experience in shipping,

treating, and disposing of EAFD, including operating on-site EAFD treatment facilities at

customers’ steel mills.

Id

. at 32. According to BRZ, ESOI, which owns and operates a RCRA

Part B permitted treatment, storage, and disposal facility, has safely managed over 2.5 million

tons of EAFD. ESOI provides transportation services for steel mills, including rail car tracking

and management, and has direct rail service of EAFD into its containment building. BRZ has

allied with ESOI “to ensure a viable market for and safe delivery of EAFD, and to provide

expertise and assistance in the permitting, construction, and operation of the BRZ Facility.”

Id

.;

Exh. M.

As proposed by BRZ, EAFD would be transported in tightly sealed vehicles by highway

or rail and unloaded through “enclosed systems equipped with controls to prevent releases of

material.” Pet. at 33. The off-loading facility would be enclosed with a floor, walls, and a roof.

BRZ proposes to use a baghouse or an equivalent device on all air pollution control systems

managing the off-loading building ventilation and hoods. Further, BRZ would:

take measures to control fugitive dust emissions such that any openings (doors,

windows, cracks, etc.) exhibit no visible emissions through the use of negative

pressure inside the building and the use of a slurry system to minimize dusting

when unloading. In addition, all associated particulate collection devices (

e.g.

,

---

22

fabric filter, electrostatic precipitator) will be operated and maintained with sound

air pollution control practices and the recovered dust will be reintroduced into the

process via the slurry tank.

Id

.

BRZ also states that the EAFD itself would be “unloaded directly into the closed loop

LSXEW process.” Pet. at 33. In short, concludes BRZ, the “unloading and processing” of

EAFD at the Sauget facility would be “enclosed, minimizing losses of its valuable EAFD

feedstock.”

Id

. Moreover, according to BRZ, “[a]ny EAFD shipped from a nonconforming

source for any reason would be rejected through the hazardous waste manifest process either to

an alternate facility or back to the generator.” Am. Pet. at 2.

The Board finds that for the LSXEW process at the Sauget facility, BRZ has established

that EAFD will be handled to minimize loss.

Other Relevant Factors

Under Section 720.131(c)(6), the Board may consider any other factors “only to the

extent that they are relevant to whether [EAFD] is commodity-like.”

See In re

Petition of Big

River Zinc Corporation for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c), AS 99-3,

slip op. at 14 (Apr. 15, 1999);

see also In re

Petition of Horsehead Resource and Development

Co., Inc. for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c), AS 00-2, slip op. at 14-

15 (Feb. 17, 2000).

BRZ states that using the LSXEW process at the Sauget facility will increase the overall

EAFD recycling rate in the United States by 30%. Pet. at 34. The Board finds that increased

recycling of EAFD, in and of itself, is not relevant to determining EAFD’s commodity-like

status. It is the logical expectation with adjusted standards of this sort that increased recycling

will necessarily result.

See

Big River Zinc, AS 99-3, slip op. at 14 (Apr. 15, 1999) (petitioner

“has not established that an increase in EAF dust recycling is relevant to the question”). The

Board finds, however, that such a dramatic enlargement of the national EAFD market (

i.e.

, 30%),

as well as the resultant “transform[ation of] a shuttered business into a viable industrial

enterprise,” does enhance the commodity-like nature of the EAFD at issue.

Id

. at 36-37.

BRZ also expects numerous environmental benefits to flow from issuance of the adjusted

standard. For example, in contrast to the traditional refining process used at the Sauget facility,

the LSXEW process does not require roasting before leaching. Pet. at 17, 21. At the suspended

production levels for the facility, BRZ roasted 100% of the zinc concentrate received. With the

addition of LSXEW, BRZ expects to do about one-third less roasting and to therefore reduce air

emissions by over 30%.

Id

. at 21, 35. BRZ also emphasizes that the adjusted standard would

lead to less landfilling of EAFD (with the corresponding preservation of hazardous waste

disposal capacity) and less resource depletion from zinc mining.

Id.

at 34-36, 40.

The Board finds that while these anticipated improvements for the environment are

laudable, they do not bear upon whether EAFD is commodity-like and accordingly are not

relevant to this determination.

See

Big River Zinc, AS 99-3, slip op. at 14 (Apr. 15, 1999)

(noting that the Board encourages recycling, but holding that increased recycling alone is

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23

irrelevant to the solid waste determination); Horsehead Resource and Development, AS 00-2,

slip op. at 15 (“Although the Board encourages increased recycling, it cannot be classified as a

‘relevant factor’ because it is not relevant to the determination that [the material at issue] is

commodity-like.”).

Board Determination

The Board finds that BRZ has established that EAFD, as proposed to be used in the

LSXEW process at BRZ’s Sauget facility, is commodity-like under the Section 720.131(c)

factors and therefore not a solid waste. The Board accordingly holds that an adjusted standard is

warranted.

Conditions on the Adjusted Standard

Through its petition and amended petition, BRZ proposed the following language for the

adjusted standard:

The Board hereby determines that all electric arc furnace dust received by Big

River Zinc Corporation at its facility in Sauget, St. Clair County, Illinois, and

placed directly in the LSXEW zinc recycling process for use as feedstock is, upon

receipt by Big River Zinc, not a solid waste. Pet. at 39.

BRZ shall maintain records that document the sources of all EAFD material that

BRZ accepts under this adjusted standard.

BRZ shall maintain records that document the completion of pre-acceptance

evaluations and document the results of testing to determine zinc concentrations

in EAFD shipped to the BRZ Facility from individual sources.

Representative samples shall be collected and tested in accordance with generally

accepted practices, such as X-ray fluorescence and those specified in “Test

Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA

Publication No. SW-846 (Third Edition).

BRZ shall maintain the records required under this Order 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 the Illinois Environmental

Protection Agency’s request. Am. Pet. at 3.

IEPA asserts that it is “appropriate to limit the determination . . . to only those instances

where it has been introduced into the LSXEW process” and states that BRZ’s petition and

amended petition accomplish that objective. IEPA Rec. at 1-2; IEPA Am. Rec. at 2.

Section 28.1(a) of the Act provides in part that “[i]n

granting [] adjusted standards, the

Board may impose such conditions as may be necessary to accomplish the purposes of this Act.”

415 ILCS 5/28.1(a) (2004)). The Board finds BRZ’s proposed adjusted standard language

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24

appropriate and will adopt it in the order below with several minor clarifications. The Board has

imposed similar conditions on prior solid waste determinations.

See

Big River Zinc, AS 99-3,

slip op. at 6 (May 6, 1999); Horsehead Resource and Development, AS 00-2, slip op. at 17.

Additionally, in its August 17, 2006 order, the Board directed BRZ to clarify (1)

precisely when BRZ proposed having the solid waste determination attach to the EAFD and (2)

how any rejected loads of EAFD would be handled.

See

Big River Zinc, AS 06-4, slip op. at 2

(Aug. 17, 2006). First, BRZ replied by proposing that the solid waste determination “take effect

once any shipment of EAFD enters the gate and is physically present on the BRZ property.”

Am. Pet. at 3. Second, BRZ responded by stating that any EAFD shipped to BRZ from a source

whose EAFD does not conform to BRZ’s minimum acceptable grade “would be rejected through

the hazardous waste manifest process either to an alternate facility or back to the generator.”

Id

.

at 2. The Board will add BRZ’s explanatory language to the adjusted standard to clarify the

scope and conditions of the relief granted.

CONCLUSION

The Board finds that BRZ has established that EAFD delivered to its Sauget zinc refinery

as a feedstock for the LSXEW process is commodity-like. Accordingly, the Board finds that

EAFD, under these circumstances, 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.

The Board emphasizes that this determination applies only to EAFD to be processed

through LSXEW at BRZ’s electrolytic zinc refinery in Sauget, St. Clair County. Further, this

determination applies only to EAFD shipments once they enter the gate of the BRZ facility and

are physically present at the facility.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

1.

The Board finds that all electric arc furnace dust from the primary production of

steel (K061 under 35 Ill. Adm. Code 721.132) (EAFD) received by Big River

Zinc Corporation (BRZ) at its zinc refinery (2401 Mississippi Avenue, Sauget, St.

Clair County, Illinois) (BRZ Facility) and placed directly into the BRZ Facility’s

Leaching, Solvent Extraction, Electrowinning (LSXEW) zinc recycling process as

feedstock is, upon receipt by BRZ at the BRZ Facility, not a solid waste. The

Board accordingly grants BRZ an adjusted standard under 35 Ill. Adm. Code

720.131(c).

2.

This adjusted standard is subject to the following conditions:

a.

The determination described in paragraph one of this order applies only to

an EAFD shipment once it enters the gate of the BRZ Facility and is

physically present at the BRZ Facility.

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25

b.

Any EAFD shipped to the BRZ Facility from a source whose EAFD does

not conform to BRZ’s minimum acceptable grade for zinc concentrations

must be rejected by BRZ through the hazardous waste manifest process

and redirected either to an alternate facility or back to the generator.

c.

BRZ must maintain records that document the sources of all EAFD that

BRZ accepts under this adjusted standard.

d.

BRZ must maintain records that document the completion of pre-

acceptance evaluations and document the results of testing to determine

zinc concentrations in EAFD shipped to the BRZ Facility from individual

sources.

e.

BRZ must collect and test representative, supplier-specific samples of

EAFD delivered to the BRZ Facility. Each sample must be collected and

tested in accordance with generally accepted practices, such as X-ray

fluorescence and those specified in “Test Methods for Evaluating Solid

Waste, Physical/Chemical Methods,” USEPA Publication number SW-

846 (Third Edition, Final Update IIIA, April 1998), as amended by

Updates I, IIA, III, and IIIA (Document No. 955-001-00000-1).

f.

BRZ must maintain the records required under paragraphs 2(c), 2(d), and

2(e) 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 Illinois Environmental Protection Agency’s

request.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2004);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on November 16, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board