BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF
)
RCRA DELISTING ADJUSTED STANDARD
)
PETITION OF PEORIA DISPOSAL
COMPANY)
)
AS 08-10
(Adjusted Standard - Land)
(RCRA Delisting)
PETITIONER'S RESPONSE TO REOUESTS FOR ADDITIONAL PUBLIC HEARINGS
NOW COMES Petitioner Peoria Disposal Company ("PDC"), by its attorneys, Elias,
Meginnes,
Rime
&
Seghetti, P.C. and Brown, Hay
&
Stephens, LLP, and as and for its response
to the requests for additional public hearings made at the public hearing in this case on August
18, 2008, states as follows:
I.
Delistings that have not been adopted by United States Environmental Protection
Agency (the "USEPA") should be proposed to the Board pursuant to a petition for adjusted
standard pursuant to Section 28.1
of the Illinois Environmental Protection Act (the "Act").
See
35 Ill. Adm. Code §720.l22(n).
2.
A Petition for Adjusted Standard is governed by Section 28. I of the Act, which
provides that the Board make an "adjudicatory determination" on the petition. 415 ILCS
§5/28.I(a).
3.
PDC filed this Petition for Adjusted Standard on April 25, 2008 in accordance
with the Act, Board regulations and prior Board delisting cases.
4.
Pursuant to Section 28. I of the Act, the Board has adopted procedural rules
concerning adjusted standards which provide that a hearing is not always required in an adjusted
standard proceeding, but a public hearing will
be held "upon the request of any person received
THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
Electronic Filing - Received, Clerk's Office, August 29, 2008
by the Board within 21 days after publication of the notice of the filing of the petition." 35
Ill.
Adm. Code §§104.408 and 104.420.
5.
Such hearing provisions are more liberal than corresponding federal procedures
for RCRA delistings. When a request for RCRA delisting is presented directly to the USEPA
for an administrative determination, a public hearing
is held only at the discretion of the USEPA
Administrator, upon the written request
of an interested person, who must "state the issues to be
raised and explain why written comments would not suffice to communicate the person's
views."
See
40 CFR §260.20(d).
6.
In accordance with the Act and Board procedural rules, PDC published notice of
the filing of this petition on April 28, 2008. Requests for public hearing should have been filed
no later than May 19,2008,21 days after filing
ofthe notice.
7.
In its Order dated June 5, 2008, the Pollution Control Board found the following:
On April 30, 2008, PDC filed a certificate
of publication,
documenting that the required notice
of the petition was published
on April 28, 2008, in the
Peoria Journal Star.
The Board finds that
PDC has met the notice requirements
of the Act and the Board's
procedural rules.
*
**
Because notice of PDC's adjusted standard petition was published
in the
Peoria Journal Star
on April 28, 2008, any hearing request
was required to be filed with the Board by May 19, 2008. The
Board has received four timely requests that a hearing be held. On
May 12, 2008, Lisa Offutt filed a hearing request; on May
14,
2008, Tom Edwards filed a hearing request; on May 17,2008, Kim
McLean Converse filed a hearing request on behalf
of Peoria
Families Against Toxic Waste; and on May
19, 2008, Joyce
Blumenshine filed a hearing request on behalf
of the Heart of
Illinois Group Sierra Club. See 35
III.
Adm. Code 101.300(b)(2)
(Converse's request, received on May 20,2008, is deemed filed on
the U.S. Mail postmark date under the "mailbox rule").
Anyone of
these hearing requests is alone sufficient to trigger the requirement
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
to hold a hearing on PDC's requested relief. See 415 ILCS
5/28.1 (d)(2) (2006); 35 Ill. Adm. Code 104.422(a)(2).
The Board therefore accepts this matter for hearing.
* * *.
(Order entered June 5, 2008, pgs. I and 2).
8.
On August II, 2008, 105 days after the date of the publication of the petition
notice, Representative Bill Mitchell wrote a letter to the Board requesting that it hold a second
public hearing, specifically in DeWitt County. The Board docketed the request as Public
Comment on August 13, 2008. On August 14, 2008, PDC filed a response
to Representative
Mitchell'srequest.
9.
In accordance with the Act, the Board held a hearing on August 18,2008, at the
Peoria Public Library in Peoria, Illinois (Peoria County).
10.
At the hearing, PDC presented testimony from qualified expert witnesses, Laura
Curtis and Dr. Ajit Chowdhury. Ms. Curtis, a senior environmental engineer with RMT, Inc.,
testified as
to her familiarity with K061 waste delistings in general and the instant petition in
particular. Ms. Curtis's testimony consisted mainly
of a summary of the preparation of the
Petition for Adjusted Standard, the technical substance
of which she prepared. Dr. Chowdhury
has a bachelor's degree, master's degree and Ph.D. in chemical engineering and has been a
chemical engineer for 36 years. He developed the chemistry and technology for stabilization
of
the K061 waste, which he has licensed to PDC and which he is considering patenting.
11.
Prior to the hearing, the Board reviewed the petition and, on July 15, 2008,
submitted a comprehensive list
of pre-hearing questions to PDC. PDC responded to those
questions on August
7, 2008. At hearing, the Board had no further questions: "At this time, the
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
Board has reviewed the responses provided by PDC, and I think our questions that were raised
in those questions have been answered. Thank you." (Tr. p. 29, Anand Rao).
12.
The other party to this proceeding is the Illinois Environmental Protection
Agency (the "IEPA").
See, e.g.
35 Ill. Adm. Code §I04.402. The IEPA was present through,
and represented by, counsel at the hearing. The IEPA had no questions of the PDC's witnesses
at hearing.
13.
As the record reflects, technical staff from both the IEPA and the USEPA
provided input and review of the Petition prior to its filing with the Board. The IEPA also
reviewed the petition subsequent to its filing, as evidenced by its recommendation concerning
the petition, filed on June 12,2008, to which Petitioner responded on June 26,2008.
14.
Consistent with the Board's procedural rules and subsequent to the Petitioner's
testimony, the Hearing Officer opened the hearing for public comment. Persons who offer
public comment are neither sworn, nor subject to examination
or cross examination. Public
comment is not testimony and is not entitled to the same weight as testimony.
15.
Twenty-seven persons offered public comment at the public hearing (including
representatives from five of the ten steel mills that send their K06 I waste to PDC for treatment
and disposal).
16.
Some public commentors requested that the Board hold a second hearing. One
public commentor, Matt Varble, asserted that the Act ("Title 35 of the Environmental Protection
Act", Tr. 45) requires two public hearings. In particular, he cited
the Board's procedural rules
found at 35 Ill. Adm. Code §102.412, which govern Board public hearings relevant to the
Board's authority, pursuant to Section
27 and 28 of the Act, to promulgation state-wide
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
regulations of general applicability: "In the case of state-wide regulations hearings shall be held
in at least two areas."
See
415 ILCS §5/28(a).
17.
An
adjusted standard proceeding, such as this delisting request, is a not a state-
wide rulemaking
of general applicability pursuant to Section 27 and 28; this delisting petition
instead seeks an adjudicatory determination from the Board that would, on the basis
of a highly
technical demonstration, approve a site-specific process that delists a particular hazardous waste
so that it can be safely disposed of in a Subtitle D landfill, instead of a Subtitle C landfill. That
the resulting treated waste would be characterized in a manner that allows for disposal in any
Illinois permitted Subtitle D landfill does not turn this proceeding into a rulemaking
of general
applicability, nor does it in any way implicate local govermnent siting pursuant to Section 39.2
of the Act.
18.
The public hearing the Board held in this matter was sufficient. Further public
hearings, to allow for further oral public comment, will not serve to provide evidence which
further informs the Board on the viability
of PDC's proposed technical process, which is the
decision the Board is here called upon, and qualified to, determine.
19.
The public hearing the Board held in this matter was fair. A review of the
transcript
of the public hearing demonstrates that any claims of public commentors otherwise
are misplaced.
20.
The public hearing the Board held in this matter meets the requirements of the
Act. Further hearings that serve
to delay a Board determination in this matter will highly
prejudice the Petitioner.
21.
The Petitioner has met all the requirements
of the Act and has spent significant
time and resources developing and proposing this delisting petition. The petition
is supported by
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
the steel industry the Petitioner serves
(see
Tr., pages 83-84, 86-91, 131-138). Moreover, as
expressed by PDC in its Motion for Expedited Ruling, given the limited space available at
PDC's Peoria County facility, an affirmative decision on this petition by the Board is essential
to PDC'scontinued ability to treat K061 waste into 2009.
22.
This matter should proceed according to the schedule set
by the Pollution Control
Board. The public comment deadline has been set
to September II, 2008.
(See
the Order
entered on August 21, 2008). PDC has been directed to file its post-hearing Brief on or before
September 25, 2008, and the Illinois Environmental Protection Agency has been directed to file
its Brief on or before October 2, 2008. (This schedule was announced at the public hearing on
August
18, 2008).
23.
In its Order on June
5, 2008, the Pollution Control Board granted PDC's Motion
for Expedited Hearing, stating as follows:
Considering all
of the factors, including the economic information
PDC has presented, the Board grants the motion for expedited
review, consistent with decision deadlines and available resources.
See
35 Ill. Adm. Code 101.512(c); see also Petition of Big River
Zinc Corp. for an Adjusted Standard Under 35
Ill.
Adm. Code
nO.l31(c), AS 06-4, slip op. at 1-2 (Aug. 4, 2006) (granting
motion to expedite review). As stated above, the Board directs the
hearing officer to proceed expeditiously to hearing.
(Order entered June
5, 2008, pgs. 3-4).
WHEREFORE, PDC respectfully requests that the Pollution Control Board decline the
requests for additional public hearings made at the public hearing on August 18,2008.
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
Dated: August 29, 2008
Respectfully submitted,
PEORIA DISPOSAL COMPANY,
Petitioner
Claire
A.
Manning, Esq.
BROWN, HAY
&
STEPHENS, LLP
205 S. Fifth Street
Suite 700
Springfield, Illinois 62701
Telephone: (217) 544-8491
Facsimile: (217) 544-9609
Email: cmanning@bhslaw.com
908-0711.2a
Brian J. Meginnes, Esq.
Janaki Nair, Esq.
ELIAS, MEGINNES, RIFFLE
&
SEGHETTl, P.C.
416 Main Street, Suite 1400
Peoria, Illinois 61602
Telephone: (309) 637-6000
Facsimile: (309) 637-8514
Emails:bmeginnes@emrslaw.com
jnair@emrslaw.com
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
CERTIFICATE OF FILING AND SERVICE
1 certify that on August 29, 2008, 1 filed the foregoing document with the Clerk of the
Illinois Pollution Control Board by email, with authorization from the Clerk's Office, and
1
served the foregoing document on all parties hereto, by enclosing a true copy of same in an
envelope addressed to the attorney of record of each party or the party as listed below, with first
class postage fully prepaid, and depositing each of said envelopes in the United States Mail at
5:00 p.m. on said date:
United States Enviromnental Protection Agency
Office of Solid Waste and Emergency Response
1200 Pennsylvania Avenue,
NW
Washington, D.C. 20460
LynnBuhl
Regional Administrator
United States Enviromnental Protection Agency, Region 5
77
West Jackson Boulevard
Chicago, IL 60604
Brian J. Meginnes, Esq.
Janaki Nair, Esq.
ELIAS, MEGINNES, RIFFLE
&
SEGHETTI, P.C.
416 Main Street, Suite 1400
Peoria, Illinois 61602
Telephone: (309) 637-6000
Facsimile: (309) 637-8514
Emails:bmeginnes@emrslaw.com
jnair@emrslaw.com
William D. Ingersoll
Manager, Enforcement Programs
Illinois EnviromnentaI Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Claire
A.
Manning, Esq.
BROWN, HAY
&
STEPHENS, LLP
205
S. Fifth Street
Suite 700
Springfield, Illinois 62701
Telephone: (217) 544-8491
Facsimile: (217) 544-9609
Email: cmanning@bhslaw.com
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THIS DOCUMENT IS BEING FILED BY EMAIL WITH AUTHORIZATION.
