BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR6~LERKSOFFICE
RESPONSE TO IEPA RECOMMENDATION

SEP 032004

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

STATE

SEP

ILLINOIS

2004

Pollution Control Board

PETITION OF JO’LYN CORPORATION

)

and FALCON WASTE AND RECYCLING, ) AS 04-02

INC. for an ADJUSTED STANDARD from ) (Adjusted Standard — Land)

portions of 35 Ill.Adm.Code 807.103 and

)

35 III.Adm.Code 810.103, or in the

)

alternative, A FINDING OF

)

INAPPLICABILITY.

)

NOTICE OF FILING

To:

(See attached Service List.)

PLEASE TAKE NOTICE that on this 3rd day of September 2004, the following were

filed with the Illinois Pollution Control Board: Response to IEPA Recommendation and

Renewed

Motion for

Expedited Decision,

which are attached and herewith served upon

you.

JO’LYN CORPORATION and

FALCON WASTE AND RECYCLING, INC.

By:

Elizabeth S. Harvey

SWANSON, MARTIN & BELL

One IBM Plaza, Suite 3300

330 North Wabash Avenue

Chicago, Illinois 60611

Telephone: (312) 321-9100

Firm l.D. No. 29558

CERTIFICATE OF SERVICE

I, the undersigned non-attorney, state that I served a copy of the above-described documents to

counsel of record in the above-captioned matter via U.S. Mail at One IBM Plaza, Chicago, IL 60611 on or

before 5:00 p.m. on September 3, 2004.

•~

(~ne~tteM. Podlin

Under penalties as provided by law

pursuant to 735 ILCS 5/1-1 09, I certify

that the statements set forth herein

are true and correct.

6332-002

SERVICE LIST

AS 04-02

(Adjusted Standard — Land)

Mr. John J. Kim

Division of Legal Counsel, IEPA

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR6~LERKSOFFICE

IN THE MATTER OF:

))

STATE

SEP

ILLINOIS

2004

PETITION OF JO’LYN CORPORATION

)

Pollution Control Board

and FALCON WASTE AND RECYCLING, ) AS 04-02

INC. for an ADJUSTED STANDARD from ) (Adjusted Standard — Land)

portions of 35 lll.Adm.Code 807.103 and

)

35 lll.Adm.Code 810.103, or in the

)

alternative, A FINDING OF

)

INAPPLICABILITY.

)

RESPONSE TO IEPA RECOMMENDATION

Petitioners Jo’Lyn Corporation (“Jo’Lyn”) and Falcon Waste & Recycling, Inc.

(“Falcon”) (collectively, “petitioners”), by their attorneys Swanson, Martin & Bell, hereby

submit their response to the Illinois Environmental Protection Agency’s (“Agency”)

recommendation. This response is submitted pursuant to Section 104.416(d) of the

Board’s procedural rules. (35 IlI.Adm.Code 104.416(d).)

INITIAL MATTER

Initially, petitioners object to the late filing of the Agency’s recommendation. The

Board directed the Agency to file its recommendation within 30 days after petitioners

filed their amended petition with the Board. (See Board order, May 20, 2004, p. 3.)

Petitioners’ amended petition was filed on July 8, 2004, so that. the Agency’s

recommendation was due on August 9, 2004.1

The Agency did not mail its

recommendation until August 20, 2004, 43 days after the filing of the amended petition.

Petitioners disagree with the Agency’s position that the 30-day period for filing its

recommendation began on July 14, 2004, when petitioners filed a brief supplement to its petition. The

Board’s May 20, 2004, order specifically directed the Agency to file the recommendation within 30 days of

the amended petition. Further, the July 14, 2004, supplement was short (less than three pages), and

simply clarified information already contained in the petition and amended petition. There is no reason

the Agency needed 30 days from the filing of the supplement in which to file its recommendation.

The Agency’s delay violated, the Board’s direction that the recommendation be filed

within 30 days, and prejudiced petitioners.

INTRODUCTION

Petitioners are disappointed in, and somewhat puzzled by, the Agency’s

recommendation that the Board find that the granulated bituminous shingle material

(GBSM) is a waste, and that the Board deny the adjusted standard. Petitioners’

process for using GBSM in its Eclipse Dust Control product is environmentally safe, and

uses a material (GBSM) that might otherwise end up in a landfill (for lack of a market

only) to produce a useful product. Petitioners met with the Agency in summer 2003

(prior to the filing of this adjusted standard petition) in an attempt to address any

concerns the Agency had with the process. After the filing of this adjusted standard

petition, petitioners’ counsel offered several times to answer any questions the Agency

may have, in an attempt to work with the Agency in securing a favorable

recommendation. The Agency did not accept that offer. Instead, the Agency waited to

file a recommendation based on speculation and conjecture, without identifying any

legitimate environmental concern.

Petitioners fear that the Agency has lost sight of the Environmental Protection

Act’s “most basic purpose, protecting the environment of our state.”

(Alternate Fuels,

Inc. v. Director ofthe Illinois Environmental Protection Agency,

337 lll.App.3d 857, 786

N.E.2d 1063, 272 lll.Dec. 229 (5th Dist. 2003),

leave to appeal allowed

205 lll.2d 575,

803 N.E.2d 479, 281 lll.Dec. 75 (2003) (hereafter cited as

AFI.)

The Act specifically

states that one of its purposes is to encourage recycling and reuse.:

It is the purpose of this Title to prevent the pollution or misuse of land, to promote

the conservation of natural resources and minimize environmental damage by

.encouraging and effecting the recycling and reuse of waste materials...

(415 ILCS 5/20(b).)

By continuing to insist that the GBSM is a “waste,” and by recommending denial

of the adjusted standard petition, the Agency is working at cross-purposes to those

expressed intentions of the legislature. Petitioners’ process takes a clean, consistent

pre-consumer material (GBSM), engages in minimal processing (grinding only) of that

material, and then applies the ground GBSM for dust control and paving applications.

There is no environmental hazard with this process, and the Agency has not identified

any legitimate environmental concern. Apparently the Agency would prefer that the

otherwise useful GBSM be landfilled simply for lack of a market, taking valuable landfill

space and preventing the production of a product useful to residential and business

customers. The use of GBSM in Eclipse Dust Control is a “win-win” situation, which the

Agency should support. Indeed, the process has widespread public support from

individuals, groups, governmental entities (including the City of Woodstock, the

McHenry County Board, and McHenry County College), and elected officials.2 (See

Exhibit G, and Public Comments #1 through #10.) Instead, the Agency objects.

Petitioners ask the Board to see past the objections raised by the Agency, and approve

this process.

•

THE GBSM IS NOT A “WASTE”

Petitioners’ petition demonstrates that the GBSM is not a “waste.” GBSM does

not fit the definition of “waste.” Additionally, the Agency has previously determined that

2 The City of Woodstock has confirmed that petitioners’ operation is properly located in a manufacturing

• district. The City does not consider GBSM to be a “waste.” See Exhibit G.

the exact GBSM used by petitioners is not a waste. Further, the appellate court has

found, in a similar circumstance, that a useful product is not a “waste.”

AFI,

786 N.E.2d

at 1069.

The Agency should be held to its previous waste determination.

The Agency previously issued a waste determination to petitioners’ supplier of

GBSM (IKO Chicago), specifically finding that that the GBSM “is not a solid waste when

utilized” to form a pavement surface after grinding of the GBSM. Thus, the Agency has

already determined that the exact GBSM used by petitioners, and used as outlined by

the Agency in its waste determination, is not a, “waste.” (See p. 4 of petitioners’ petition;

Exhibit D; and pp. 6, 8-9 of petitioners’ amended petition.) In attempting to justify its

decision to refuse to recognize its own 1993 decision, the Agency (in a footnote) asks

the Board not to consider the waste determination. The Agency’s reasons for that claim

are baseless.

The Agency contends that the waste determination letter does not state that it is

transferable from IKO Chicago (the entity which obtained the determination) to

petitioners. However, the letter applies to the material at issue, not to an entity. The

letter states:

“The Agency has evaluated your request for a solid waste determination

for the granulated bituminous shingle material (GBSM) generated by the

Bedford Park facility and has determined that it is not a solid waste when

utilized for the following applications”:

Exhibit D, page 1 (emphasis added).

The Agency’s evaluation goes to the material itself, not to the name on the letter. The

material that petitioners currently use is exactly the material analyzed by the Agency,

which the Agency concluded is not a solid waste when used as outlined in the letter.

There is no indication that the material somehow becomes a waste if used by an entity

other than IKO Chicago. In fact, the letter’s reference to use of the product by an “end

user” strongly implies that the Agency recognized that the letter is applicable to users

other than IKO Chicago.

The Agency is incorrect in stating that petitioners do not process and use the

GBSM in the same way as specified in the waste determination letter. As set forth at

pages 8 and 9 of the amended petition, petitioners grind the GBSM to a size of 3 to 5

inches. This size is well within the letter’s specifications of 1/2 by 1/2 to 5 by 5 as an

acceptable size of the ground chips. Petitioners then apply the chips at a thickness of 4

to 6 inches, prior to compaction.3 Petitioners go one step further in their process, and

compact the chips to a finished 2 to 3 inch thickness. This compaction ensures a stable

pavement, as required by the Agency’s waste determination.

All of these steps in

petitioners’ process comply with the requirements in the Agency’s waste determination

letter.

The Agency also asserts that the letter is inapplicable to petitioners because the

letter qualifies the use of the GBSM to either on-site or at the end users’ site.

Apparently the Agency contends that, because the grinding of the GBSM is performed

at petitioners’ facility (an intermediate site between IKO Chicago and the location where

the Eclipse Dust Control is applied), the material ‘becomes a waste after leaving the IKO

facility, even though it would not be a waste if the material went directly to the home or

business of the person purchasing the Eclipse Dust Control product. This claim is

illogical, and is at odds with the appellate court’s decision in

AFI.

The

AFI

court found

Petitioners recognize that the waste determination letter specifies a thickness of 5 to 6 inches.

Petitioners are willing to apply the uncompacted chips at a minimum thickness of 5 inches.

no distinction between a material at the beginning of a process and the same material at

the end of a process.

AFI,

786 N.E.2d at 1069. Likewise, there is no distinction

betweenIt theis

unclearGBSM

ifwhygroundthe

Agencyat

petitioners’seeksfacility,to

repudiateor

if groundits

ownat

thewaste“end

determinationuser.”4

letter. That letter determined that the exact GBSM, from the identical source, used by

petitioners is not a solid waste when used as outlined in the determination. Petitioners

have demonstrated that their process uses the GBSM in the matter required by the

waste determination. In fact, petitioners relied on that waste determination letter in

beginning their business. Presumably, IKO Chicago also relied on that letter in

contracting to sell that GBSM to petitioners. (See Exhibit A, purchase agreement

between IKO Chicago and Jo’Lyn.)

The Agency made its determination that this

material is not a solid waste, and has not articulated a reasonable basis for its refusal to

accept its own determination as to petitioners’ process. The Agency has already

determined that the GBSM is not a “waste,” and it should be held to that determination.

The appellate court has found that a similar material is not a “waste.”

The appellate court’s recent decision in

AFI

supports a finding that the GBSM is

not a “waste.”5 (See petition, pp. 5-6.) The Agency attempts to distinguish the

AFI

decision with a tortured interpretation of the appellate court’s decision. The Agency also

asserts that this case is factually different than

AFI,

but those supposed differences are

based on conjecture and speculation.

Petitioners are indeed the “end user” of the GBSM, since they use the GBSM to make Eclipse

Dust Control.

Petitioners and the Agency have noted that the Supreme Court has accepted the

AFI

decision for

review. The Agency states that it is possible that the

AFI

decision will be reversed. Petitioners note that

it is equally possible that the Supreme Court will affirm the appellate court’s decision.

First, it is important to note the context of the

AFI

decision, which is enlightening

as to why the Agency is apparently so reluctant to accept the appellate court’s decision.

The petitioner in

AFI

is the “intermediary” in a recycling process. After collecting triple-

rinsed plastic containers and processing them into small pieces (much like petitioners’

grinding process), AFI sells the pieces to Illinois Power for use as a fuel at the Baldwin

power plant. Illinois Power had previously received, from the Board, a determination

that the plastic pieces are not “waste,” so that the Baldwin Plant need not obtain local

siting approval to use the plastic pieces. “Despite the Board’s decision, the Agency

continued to interpret the Act as requiring the facilities manufacturing the alternate fuel

to comply with solid-waste-permitting and local-siting-approval procedures.”

AFI,

786

N.E.2d at 1065. The Agency attempted to enforce the waste rules against AFI, the

producer of the plastic pieces, despite the Board’s finding that those plastic pieces are

not “waste’.” AFI then sought a declaratory judgment.

In short, that declaratory

judgment (which was upheld by the appellate court) was necessary only because the

AgencyTherefusedAgencyto acceptassertsthethatBoard’sthe

factspreviousin this

ruling.case

are6 different than the facts in

AFI. ~

This is incorrect. The Agency states that the contract between AFI and its suppliers

ensured quality control of the material, and asserts that petitioners do not have such

quality control. This assertion is speculative and not based on fact. Petitioners have a

contract with IKO Chicago for the purchase of GBSM (see Exhibit A). That contract

In this contextual sense, the

AFt

proceeding is reminiscent of

Grigoleit Co. v. Pollution Control

Board,

245 IIl.App.3d 337, 613 N.E.2d 371, 184 !ll.Dec. 344 (4th Dist. 1993), another case where the

Agency refused to abide by a Board ruling.

The Agency’s implication that the appellate court’s decision was based heavily upon the facts in

AFI

is incorrect. The appellate court based its decision on its interpretation of the statutory provisions of

the Act.

•

allows petitioners to reject the GBSM if it contains contaminants.8 Petitioners have

stated, and reiterate, that they will only accept GBSM that meets the definition set forth

in the pleadings.9 Petitioners disagree with the Agency’s claim that the definition of

GBSM does not ensure uniformity. The definition is “clean and consistent post-

production material generated at the end of the manufacturing of roofing shingles, such

as tabs or punchouts, and miscolored or damaged shingles. GBSM excludes post-

consumer material or shingle tear-offs.” (Amended petition, p. 8.) That definition is

clear and capable of application to any given load of GBSM.

The Agency also attempts a rather tortured interpretation of the

AFI

decision.

Instead of discussing the appellate decision, the Agency attempts to focus on two Board

decisions: the Board’s

Illinois Power

decision underlying the appellate

AFI

decision,

and the Board’s unrelated decision in

IWEP.

The Agency apparently does this in an

attempt to distract the Board from the simple holding of

AFI,

and its clear applicability to

petitioners’ process. The appellate c9urt specifically found:

We see no real distinction between the product at the time it enters AFI’s

facility and the product after it leaves, because the material is at all times

destined to become alternative fuel that is not discarded. Regulating the

process at the outset makes no more sense than regulating it at the end.

AFI,

786 N.E.2d at 1069.

It is unfortunate that the Agency did not take advantage of petitioners’ repeated offers to address

any concerns the Agency had. If the Agency had done so, perhaps the contract could have been revised

to specifically address the Agency’s concerns.

The Agency notes several times that petitioners have expressed an intent to pursue contracts

with GBSM suppliers in addition to IKO Chicago. The Agency is apparently concerned that the GBSM

purchased from other suppliers might be “different” than the GBSM from IKO Chicago. Petitioners

obviously prefer to have the opportunity to pursue GBSM from additional suppliers, to ensure a steady

source of GBSM, and to possibly expand its operations. However, if required by the Board, petitioners

would be willing to restrict their process to GBSM ‘from IKO Chicago.

This language can be directly applied to petitioners’ process. There is no distinction

between the GBSM when it enters petitioners’ facility, and the GBSM when it leaves.

The GBSM is not discarded, and is at all times destined to become Eclipse Dust

Control. The only action taken on the GBSM is the grinding process, which is similar to

the shredding process used by AFI. In short, both AFI’s process and petitioners’

process involve obtaining the raw material (plastic containers or GBSM), shredding or

grinding the raw material, and then using the shredded/ground material as a useful

product (alternative fuel or Eclipse Dust Control).1° The appellate court’s statutory

analysis is applicable to petitioners’ process.

The Agency asserts that if the Board, in

Illinois Power,

had been asked to review

the question of whether the material accepted by AFI was a waste, it may have decided

that it was. In addition to being complete speculation, this argument is contrary to the

finding made by the

AFI

appellate court. Since the Board held, in

Illinois Power,

that the

alternative fuel used by Illinois Power is not a waste, how can it be a waste before it

gets to Illinois Power? The appellate court noted that Board decision, and found that

there is no real distinction between the material when it entered AR’s facility and when

it left. Thus, the appellate court held that regulating the process at the outset (at AFI’s

facility) makes no more sense that regulating it at the end (at Illinois Power).

AFI,

786

N.E.2d at 1069. The Agency’s speculation is contrary to the appellate court’s decision

inAFI.

Petitioners’ process arguably has less potential for environmental concerns, as the Eclipse Dust

Control is applied and compacted, with no heat (except the heat of the sun) or sealant. In contrast, the

alternative fuel is burned., Additionally, the material used by petitioners is pre-consumer, while the

material used by AFI is post-consumer.

In sum, GBSM is not a “waste.”

It does not fit the definition of “waste.”

Additionally, the Agency ‘has previously determined that the GBSM is not a “waste”

when used for paving applications under specific circumstances. Further, the appellate

court, in

AFI,

has clearly held that such a clean and consistent material is not a “waste,”

because that material is not discarded. Petitioners ask the Board to find that the GBSM

used in petitioners’ process is not a “waste.”

PETITION FOR ADJUSTED STANDARD

If the Board finds that the GBSM is indeed a “waste,” petitioners seek an

adjusted standard. Petitioners hereby respond to the issues raised by the Agency.

Standard from which relief is sought (Section 104.406(a))

The Agency questions whether an adjusted standard can be sought from

reguI~torydefinitions that incorporate statutory definitions. The Agency cites no case

law in support of its claim. It has long been the Board’s practice to incorporate statutory

definitions into its regulations.

If an adjusted standard cannot be granted from

regulations that incorporate statutory definitions, no meaningful adjusted standard could

ever be granted from the land regulations (and possibly from air and water regulations).

The land regulations, in particular, are replete with definitions taken directly from the

statute. If the Board lacked the power to grant adjusted standards where a definitiOn (or

other regulatory provision) incorporates a statutory provision, it would be impossible to

obtain a meaningful adjusted standard for land. If the legislature had intended that no

adjusted standard could be granted from a regulation which incorporates a statutory

‘definition, it would have so stated.11 It did not. Instead, the legislature granted the

For example, the legislature required that an adjusted standard be consistent with federal law.

(415 ILCS

5128.1(c)(4).)

The legislature could have added a similar provision if it had intended that the

Board broad powers to grant adjusted standards whenever the Board finds that the

petitioner has demonstrated compliance with the factors in Section 28.1(c) (415 ILCS

28.1(c)).

Description of petitioners’ activity (Section 104.404(d))

The Agency believes that “certain questions still remain” as to the activities at the

site.

Once again, petitioners note that petitioners’ counsel offered, on several

occasions, to respond to any questions or concerns the Agency had after reviewing

petitioners’ pleadings. The Agency did not take advantage of that offer, but instead

waited until filing its recommendation, thereby “sandbagging” petitioners. Petitioners

would have been happy to address the issues raised by the Agency, if only the Agency

had communicated with petitioners.

The Agency’s articulated concerns are based only on speculation and apparent

misinterpretations of petitioners’ statements. For example, the Agency believes that

there are two different sites at use in petitioners’ process. There are not. Petitioners

began their operations (storage of GBSM in containers) at a location on Kennedy Drive

in Harvard, Illinois, in winter 2000-2001 (which is their first test section site). Petitioners

then moved their operations to their current facility at 1200 North Rose Farm Road,

Woodstock, Illinois, in February 2001. Petitioners do not operate at the Kennedy Drive

address: operations. occur only at 1200 North Rose Farm Road.

The Agency also asserts that petitioners have not provided information on a

range of other matters. Again, these concerns are based on speculation, and an

apparent misunderstanding of petitioners’ process. Petitioners’ process is quite simple.

Board not grant adjusted standards where one or more of the regulatory provisions incorporated a

statutory provision.

GBSM is purchased (currently from IKO Chicago), inspected at IKO Chicago, and

transported to petitioners’ facility in Woodstock. There, the load of GBSM is visually

inspected again to ensure that it contains only GBSM. (As noted above, petitioners’

contract with IKO Chicago gives petitioners the right to refuse any load which contains

contaminants.) It is not necessary to perform physical testing, since all of the GBSM

comes directly from the manufacturing process.12 After the visual inspection, the GBSM

is ground. As noted on page 5 of the amended petition, the only air emissions at the

facility are minimal emissions from the muffler on the grinder.13 The grinding process

itself uses a light mist of water, so,there is no dust from the grinding.

The Agency also complains that petitioners have not provided a comparison of

ASTM or DOT specifications to petitioners’ product characteristics. Petitioners assume

that the Agency is referring to ASTM or DOT specifications for recycled asphalt

pavement (RAP).

While similar in some ways to RAP, the Eclipse Dust Control

process is different: most importantly, no heat is applied in the Eclipse Dust Control

process, unlike the RAP process, making the Eclipse process superior. There are no

specifications from any “recognized” entity (such as ASTM or DOT) for the Eclipse Dust

Control process, nor has the Agency pointed to any such specifications. It is unclear

how comparing the GBSM used in Eclipse Dust Control to specifications for a different

process would be useful. 14

Roofing shingles, which are the only source of GBSM, are on most residential roofs in the state of

Illinois, and are not in any way inherently “dangerous” or toxic.

Petitioners will, of course, obtain any required air permit forthe grinder.

Petitioners have already provided the specific breakdown of the composition of GBSM. (See

supplement, p. 2.) Additionally, petitioners provided results, over the last two to three years, of two test

applications of Eclipse Dust Control. (See amended petition, pp. 6-7.) Those test applications have

proven the durability and usefulness of Eclipse Dust Control.

The Agency also complains that petitioners have not provided information as to

possible adverse health impacts to cattle fed on feed lots paved with Eclipse Dust

Control, or to people using biking or walking paths. Once again, this is pure and utter

speculation. Petitioners ha’ve provided the composition of GBSM: asphalt, filler (usually

limestone), granules (rock), and mat. The Agency has not pointed to any of those

ingredients as raising a specific health concern. Nothing is added to the GBSM,,and no

heat or sealant is applied to the Eclipse Dust Control.15 Petitioners recognize that they

have the burden of providing sufficient information to enable the Board to make its

decision. However, petitioners object to the Agency’s repetitive raising of speculative

issues, without any support for those issues.

Corn pliance alternatives (Section 104.406(e))

As noted in the petition, petitioners’ only compliance alternative (if the Board

finds that the GBSM is a waste) is full compliance with all applicable regulatory

requirements in Parts 807 and 810, including local siting approval. The siting process

itself can cost hundreds of thousands of dollars. Compliance with the regulatory

requirements, even if local siting was obtained, would be cost-prohibitive to a small

business such as petitioners. In essence, petitioners have not provided capital and

operating costs for full compliance because they would not be able to operate their

business if required to comply with all provisions. It would be illogical and short-sighted

to require petitioners, who use a single, clean, and consistent pre-consumer material to

The Agency’s mention of “inhalation of particles or vapors” by people using walking or bicycle

paths is baseless. The product is tightly compacted, so that there are no particles arising from the

pavement. (In fact, a person walking on a gravel path would be much more likely to be exposed to

particles.) As for vapors: there is no evidence that the compressed GBSM issues any vapors, at least

beyond any vapors which might theoretically be emitted from a residential roof.

produce a useful product, to comply with regulations intended for operations which treat,

store, or dispose of waste.

Proposed adiusted standard (Section 104.406(f))

Petitioners reiterate their arguments that the Board can appropriately grant an

adjusted standard from a regulatory provision that incorporates a statutory provision.

Impact on the environment (Section 104.406(h))

The Agency has raised only speculative “questions and concerns” about the

impact on the environment. Petitioners have addressed those questions, above. There

is no evidence in the record of this proceeding that shows any environmental concerns

relating to petitioners’ process. In fact, the Agency itself previously approved the use of

GBSM for exactly the process used by petitioners. Presumably, the Agency would not

have issued such an approval if there were &nvironmental concerns.

Supporting documents (Section 104.406(k))

Petitioners refer the Board to their demonstration, above, that the Agency’s

inexplicable attempt to prohibit consideration of the 1993 waste determination should be

rejected. The 1993 waste determination is indeed relevant and applicable. Additionally,

the documents related to the receipt of the state grant from DCEO (see Exhibit F) are

indeed relevant. DCEO’s grant demonstrates that it found the operation worthy of

funding as a recycling operation. Additionally, DCEO personnel have actually viewed

the two test sections and petitioners’ facility at 1200 North Rose Farm Road, and have

been favorably impressed with the results.

•

Section 28.1(c) factors

The Agency asserts that petitioners have not sufficiently demonstrated three of

the factors set forth in Section 28.1(c) of the Act. The Agency’s assertions on these

issues are simply disagreements with petitioners’ demonstrations, or speculation.

Petitioners believe that their petition, amended petition, supplement, and this response

demonstrate that: 1) the factors relating to petitioners are substantially and significantly

different (a recycling operation using a single clean material to produce a useful and

valuable product, as opposed to a facility that treats, stores, or disposes of waste); 2)

the existence of those factors justifies an adjusted standard (compliance with the waste

regulations will not provide any environmental benefit, and allowing the adjusted

standard will allow the process of recycling the clean GBSM into a useful paving

product); and 3) there are no ad~’erseenvironmental or health effects (petitioners have

shown that the Agency’s possible adverse scenarios are simply speculation: even the

Agency admits that its scenarios are “potential” concerns which “may” relate to adverse

effects).

CONCLUSION

It is unclear why the Agency does not support petitioners’ request for a finding of

inapplicability, or an adjusted standard. Petitioners’ process is a simple yet effective

use of GBSM, which is a clean and consistent pre-consumer material, to make a useful

and effective paving product. This process utilizes the GBSM, which might otherwise

be landfilled due only to lack of market, and does not create any “pollution” or adverse

environmental impacts. Petitioners’ request’ is supported by a number of citizens,

group’s, governmental entities, and elected officials.

(See Exhibit G and Public

Comments #1 through #10.) Not a single person or entity, other than the Agency, has

objected to this request, and no one requested a hearing. The appellate court has

ruled, in a similar case, that the material at issue is not a “waste.” Despite petitioners’

demonstrations, public support, and appellate direction, the Agency inexplicably refuses

to support petitioners’ request. Petitioners ask the Board to grant petitioners’ request

for a finding of inapplicability, or, in the alternative, an adjusted standard.

Respectfully submitted,

JO’LYN CORPORATION and

FALCON WASTE AND RECYCLING, INC.

By~i~JOn~)ofits

atto~neys/

Michael J. Maher

• Elizabeth S. Harvey

Swanson, Martin & Bell

One IBM Plaza, Suite 3300

• 330 North Wabash Avenue

Chicago, IL 60611

Telephone: (312) 321-9100

Facsimile: (312) 321-0990

RECEIVED

CLERK’S OFFICE

SEP 032004

BEFORE THE ILLINOIS POLLUTION CONTROL BO1~~-E

OF ILLINOIS

Pollution Control Board

INTHEMATTEROF:

)

PETITION OF JO’LYN CORPORATION

)

and FALCON WASTE AND RECYCLING, ) AS 04-02

INC. for an ADJUSTED STANDARD from ) (Adjusted Standard — Land)

portions of 35 llI.Adm.Code 807.103 and

)

35 lll.Adm.Code 810.103, or in the

)

alternative, A FINDING OF

)

INAPPLICABILITY.

)

RENEWED MOTION FOR EXPEDITED DECISION

Petitioners Jo’Lyn Corporation and Falcon Waste and Recycling, Inc., by their

attorneys Swanson, Martin & Bell, hereby renew their motion for expedited decision of

their petition for adjusted standard or, in the alternative, for a finding of inapplicability:

Petitioners have filed their petition for adjusted standard or, in the

alternative, a finding of inapplicability. Petitioners have also filed an amended petition

and a supplement. The Illinois Environmental Protection Agency (Agency) has filed its

recommendation, and petitioners have filed a response to that recommendation.

Petitioners have waived hearing, and no member of the public requested a hearing.

Thus, this matter is ripe for decision.

‘

As previously noted, application of petitioners’ paving product to the’

surface requires compaction and the heat of the sun.

Petitioners’ business’ is, by its nature, a seasonal business. For optimal

results, the process needs the heat of the sun to set the paving. Petitioners are small

businesses which need to operate in order to survive.

Petitioners respectfully renew their previous motion for expedited decision,

and request that the Board reach a determination on this matter as soon as possible to

allow petitioners to operate yet this season.

WHEREFORE, petitioners respectfully ask this Board to act upon its petition as

soon as possible.

Respecifully submitted,

JO’LYN CORPORATION and FALCON

WASTE AND RECYCLING, INC.

Michael J. Maher

Elizabeth S. Harvey

Swanson, Martin & Bell

One IBM Plaza, Suite 3300

330 North Wabash Avenue

Chicago, IL 60611

Telephone: (312) 321-9100

Facsimile: (312) 321-0990