BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
PETITION OF JO’LYN CORPORATION
)
and FALCON WASTE AND RECYCLING)
for an ADJUSTED STANDARD from
)
35
ILL. ADM. CODE PART 807 or,
)
in the alternative, A FINDING OF
)
INAPPLICABILITY.
)
Dorothy M. Gunn, Clerk
BradleyP. Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION FOR LEAVE TO FILE INSTANTER and RECOMMENDATION, copies of
which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
~de~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: August 20, 2004
RECE~VED
CLERK’S OFFICE
AUG 2 42004
STATE OF ILLINOIS
Pollution Control Board
AS 04-02
(Adjusted Standard
—
Land)
NOTICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
PETITION OF JO’LYN CORPORATION )
and FALCON WASTE AND RECYCLING)
for an ADJUSTED STANDARD from
)
35 ILL. ADM. CODE-PART 807 or,
)
in the alternative, A FINDING OF
)
INAPPLICABILITY.
)
MOTION FOR LEAVE TO FILE INSTANTER RECOMMENDATION
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 fll. Adm. Code 101.500, hereby requests that the Illinois Pollution
Control Board (“Board”) grant the Illinois EPA leave to file instanter its Recofrimendation to the
Petitioners’ petition. In support ofthis motion, the Illinois EPA states as follows:
1.
The Petitioners filed a petition for adjusted standard with the Board on April 21,
2004. On May 20, 2004, the Board entered an order requiring the Petitioners to file an amended
petition, addressing certain deficiencies identified by the Board. The order also required the
Illinois EPA to file its recommendation to the amended petition within 30 days ofthe filing of
the amended petition. Section 104.416(a) of the Board’s procedural rules
(35
Ill. Adm. Code
104.416(a)) generally allows the Illinois EPA 45 days from the filing of an adjusted standard
petition to file its recommendation, unless otherwise ordered by the Board or the Hearing
Officer.
2.
On July 8, 2004, the Petitioners filed an amended petition with the Board. On
July 14, 2004, the Petitioners filed a supplement to the amended petition. The Illinois EPA
believes that, pursuant to Section 104.4 16(a) of the Board’s procedural rules and the May 20,
REC~VED
CLERK’S OFFICE
AUG 2 4 2004
STATE OF ILLINOIS
Pollution Control Board
AS 04-02
(Adjusted Standard
—
Land)
1
2004 Board order, the Illinois EPA has 30 days from the filing ofthe supplement to the amended
petition to file its recommendation. For reasons explained in its motion, the Illinois EPA then
filed a motion for extension oftime to file its recommendation on or before August 18, 2004.
3.
Due to a heavy case load, the undersigned attorney was not able to complete the
preparation ofthe recommendation until August 20, 2004, the date ofthis motion.
4.
The Illinois EPA regrets the delay in the submission of its recommendation, but
notes that no hearing has been set in this matter and that this submission still falls within the time
otherwise allowed for filing pursuant to Section 104.4 16(a) ofthe Board’s procedural rules.
5.
The Illinois EPA has informed counsel for the Petitioners ofthis motion.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Board grant the Illinois EPA leave to file instanter its Recomthendation.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Joh~iJ.Kim
-
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
-
1021 North Grand Avenue East
P.O.Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: August 20, 2004
This filing submitted on recycled paper.
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
PETITION OF JO’LYN CORPORATION )
and FALCON WASTE AND RECYCLING)
for an ADJUSTED STANDARD from
)
35 ILL. ADM. CODE -PART 807 or,
)
in the alternative, A FINDING OF
)
INAPPLICABILITY.
)
RECOMMENDATION TO PETITION FOR ADJUSTED STANDARD
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”), by one of
its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney General, and,
pursuant to 35 Ill. Adm. Code 104.416, hereby submits a recommendation to the Illinois
Pollution Control Board (“Board”) in response to the petition for adjusted standard (“petition”)
filed by Jo’Lyn Corporation and Falcon Waste and Recycling (“Petitioners”). In support ofthis
recommendation, the Illinois EPA states as follows:
I. INTRODUCTION
The Petitioners are seeking an adjusted standard or, in the alternative, a finding of
inapplicability related to request that a determination be made that certain raw material
(granulate bituminous shingle material, or “GBSM”) used in their production process is not a
“waste.” Ifthe Board does not agree with the Petitioners’ position that the material in question is
not a waste, then the Petitioners seek an adjusted standard from portions of the Board’s waste
regulations.
The Petitioners have filed a petition, amended petition and supplement to the amended
petition. Those documents combined form the basis for the Petitioners’ request. In the amended
petition, the Petitioners identify the specific provisions from the Board’s regulations from which
RECI~VED
CLERK’S OFRCE
AUG 242004
STATE OF ILLINOIS
Pollution Control Board
AS 04-02
(Adjusted Standard
—
Land)
1
they seek an adjusted standard. The Petitioners state that they seek an adjusted standard from
certain definitions found in Section 807.104 of the Board’s regulations (35 Ill. Adm. Code
807.104), as well as from certain definitions in Section 810.103 (35 Ill. Adm. Code 810.103))
Amended petition, pp. 2-3.
-
To obtain a positive ruling from the Board, the Petitioners must satisfactorily address all
factors set forth in Section 104.406 of the Board’s procedural regulations
(35
111. Adm. Code
104.406) as well as in Section 28.1(c) of the Act (415 ILCS
5/28.1(c)).
For reasons set out
below, the Illinois EPA recommends that the Petitioners’ request be denied.
II; RELEVANT CASELAW
The Petitioners cite to a number of different cases in support of their contention that a
finding of inapplicability or, in the alternative, an adjusted standard is warranted. In their
petition, the Petitioners address the case of Alternate Fuels, Inc. v. Illinois EPA, 337 Ill. App. 3d
857, 786 N.E.2d 1063 (5th Dist. 2003) (“AFT”). The Petitioners argue that the court’s holding in
________________________________________
n
The Illinois EPA notes that included among the definitions in Section 807.104 that are the subject of the
Petitioners’ request are those of “solid waste” and “waste.” Those defmitions are taken, verbatim, from stati.itory
definitions found in Sections 3.470 and
3.535
of the Environmental Protection Act (“Act”) (415 ILCS
5/3.470,
3.535),
respectively. Althoughthe Board has in the past considered matters that involve the question of whether the
material under review is a waste, in this specific instance the Petitioners are seeking direct regulatory relief
(provided by an adjusted standard) from what is clearly identified as a statutory definition. Thus, a very persuasive
argument could be made that as to the portion of the request that would involve relief from the definitions of “solid
waste” and “waste” in Section 807.104, the request is inappropriate since an adjusted standard cannot be granted to
relieve a statutory obligation or standard. Also, the Petitioners are seeking an adjusted standard from the definition
of “solid waste” as found in Section 810.103 of the Board’s regulations. That definition provides, in part, that
consideration of whether a material is a waste includes a review of Section 721 of the Board’s regulations. The
Petitioners argue that Section 721.102 is not applicable to the present request. Petition, pp. 6-7. However, given
that one of the definitions that is the subject of the request for adjusted standard includes an incorporation of
regulations found in Part 721, the Board should at the very least give some consideration to those provisions. In
particular, the Illinois EPA draws the Board’s attention to Section 721.1 02(e)(2)(A)
(35
111. Adm. Code
721.1 02(e)(2)(A)), which provides that materials that are solid wastes (even ifrecycled) ifthe materials are used in a
manner to produce products that are applied to the land. Here, the Petitioners propose to accept a certain material
for processing (“recycling” per their argument) and then use as an asphalt replacement or enhancer. This use
obviously contemplates application of the product to land. Therefore, considering that Section 721.1 02(e)(2)(A) of
the Board’s regulations is part of Part 721, and Part 721 is directly referenced in a definitionfrom which an adjusted
standard is sought, the Board may take that provision into consideration when weighing the Petitioners’ request.
Doing so further supports the Illinois EPA’s position that the Petitioners’ request should be denied since the material
is a waste.
2
AFT is consistent with their position; namely, that GBSM is not a waste based on the Petitioners’
proposed use and processing ofthe material. However, AFT is easily distinguishable for several
reasons.
In AFT, the appellate court was reviewing a scenario in which an intermediate party
(Alternate Fuels, Inc., or “AFT”) was accepting triple-rinsed plastic containers and’processing the
plastic for later use by a separate utility in the utility’s energy production activities. As part of
the court’s review, an analysis of the definition of the statutory definition of “waste” was
undertaken. The court decided that, in that particular instance and based upon the facts presented
there, the materials delivered to AFT for recycling into alternate fuels are not discarded, are not
waste, and are not subject to permit and local siting procedures. A~J,337 Ill. App. 3d at 866,
786 N.E.2d at 1069-1070.
But a careful review of the court’s decision yields that it is distinguishable from the
present case. First, the appellate court detailed facts surrounding the manner in which AFT
would be accepting the plastic containers for processing. Those facts include requirements that
suppliers of the components to sign a contract as evidence of their agreement to provide only
materials free of nonconforming items, and that suppliers must perform a fuel analysis on the
materials to show that they meet specifications set forth in an operating permit issued to the end-
userutility. API, 337 Ill. App. 3d at 860, 786 N.E.2d at 1065.
Compare those requirements with the proposal of the Petitioners here.
-
There is no
statement that there will be any level ofquality control similar to the ~EIfact pattern, other than
the Petitioners making the statement that they plan to pursue GBSM from multiple providers.
Amended petition, pp. 11-12. All that the Petitioners state on this point is that there are other
shingle manufacturers in the state who are potential sources for GBMS (other than IKO Chicago,
3
with whom an apparent business relationship has been struck) and that no contracts with any
other sources have been entered into.2 The Petitioners also state that they would be limited to the
use of GBSM that meets the definition contained in the adjusted standard. Amended petition, p.
11, fn. 8. The definition of-GBSM as provided in the petition is that GBSM consists of post-
production material generated at the end ofthe manufacturing of roofing shingles; such as tabs,
punchouts, and miscolored ordamaged shingles. Petition, p. 2. That definition by its terms does
not ensure uniformity in content or quality control. Also, contrasted with the AFT facts, there are
no standards here set forth by permit or regulation that will be adhered to, merely those proposed
by the Petitioners.
Also, the Petitioners claim that GBSM is uniform in composition. 4.
In their
supplement to the amended petition, the Petitioners provide information as to ihe percentage of
ingredients in IKO Chicago’s GBSM. Supplement to amended petition, p. 2. However, that
breakdown is representative only of11(0 Chicago’s GBSM, and does not provide any guarantee
that GBSM that may be purchased from other potential sources would be similar in percentage
(or material, for that matter). Thus, for factual reasons alone, the AFT opinion is distinguishable
in that it
Also, the AFT decision was based in large part on the appellate court’s recognition ofthe
Board’s opinion in the related cases ofIllinois Power Company v. Illinois EPA, PCB 97-35, 97-
36 (consolidated) (January 23, 1997). The AFT court twice cited favorably to the Board’s Tilinois
2
The Petitioners also argue that, consistent with the Illinois EPA’s “solid waste determination” dated May 18, 1993,
the Board should find that the GBSM is not a waste. The Illinois EPA disputes that argument for several reasons.
First and foremost, the letter was issued not to the Petitioners but to IKO Chicago. There is nothing within the letter
that indicates it was intended to be transferable. In fact, the letter clearly states that any use of the material
inconsistent as described in the letter subjects the material to any applicable regulations. Since the letter qualifies
the use of the GBSM to either on-site (i.e., at IKO Chicago’s facility) or at the end user’s site, it is inapplicable for
the Petitioners’ purposes since their contemplated use of GBSM does not meet either of those criteria. Also, by the
Petitioners’ own admission, their proposed processing and use of GBSM is not the same as that specified by the
letter. Amended petition, p. 8. The May 1993 letter should therefore not be considered by the Board in this matter.
4
Power, the first time for the proposition that the Board found that the alternate fuel produced by
API from the empty plastic containers was not waste within the meaning of the Act. A~I,337
Ill. App. 3d at 860, 786 N.E.2d at 1065. Later, the AFI court relied on the Tllinois Power case to
bolster AFT’s argument that the material delivered to API’s plant was not waste.
~
337 Ill.
App. 3d at 866, 786 N.E.2d at 1069.
In both those instances, the reliance on Illinois Power is not applicable to the case now
under review by the Board.3 The appellate court stated that in Illinois Power the Board decided
that the alternate fuel produced by AFT was not waste. However, the ruling issued by the Board
in Illinois Power should be kept in its proper context. In Illinois Power, the Board considered the
very narrow question of whether Tllinois Power was a pollution control facility that would
require Illinois Power to obtain local siting approval. Illinois Power, p.
15.
Asa part ofreaching
resolution on that question, the Board decided that the alternate fuel accepted by Illinois Power
was not a waste. Id.
To reach that decision, the Board looked to a number of different cases and the facts
surrounding AFT and Illinois Power. Initially, the Board distinguished a number of previous
decisions that involved a review ofwhether a material was “discarded” by noting those that past
decisions (wherein the Board found that the material in question was not a waste) all involved
petitioners that were the actual generators of the material in question that maintained control of
the material. Illinois Power, p. 12-13. The Board then discussed the applicabilityof one case in
particular, In the matter of: Petition of Illinois Wood Energy Partners, LP, For An Adjusted
Standard From 35 Ill. Adm. Code 807 Or, In The Alternative, A Finding Of Inapplicability, AS
94-1 (December 1, 1994) (“IWEP”). In TWEP, the Board ruled on a petition for adjusted
~As the Petitioners noted in their petition, the
~
decision has been accepted by the Illinois Supreme COurt for
review. Petition, p. 2. While it is impossible to guess what result will come of that decision, it is at the very least
possible that the appellate court’s decision, and reliance on the Illinois Power case, may be questioned or reversed.
5
standard very similar to the present situation. A petition was filed to obtain either an adjusted
standard from Part 807 or, in the alternative, a finding of inapplicability of that Part. The
petitioner was Illinois Wood Energy Partners, LP (“IWEP”), and it sought a favorable ruling in
regards to its proposal to accept wood materials from different sources for processing to produce
wood chips that would-ultimately become “produced wood fuel.” IWEP, p. 3. Thus, IWEP was
the intermediary in the picture, accepting material from the generators, then processing the
material for later sale to end-users as fuel. Here, the Petitioners are proposing the very same
situation—they would accept GBSM from the generators (e.g., IKO Chicago), then would
process the GBSM to produce a product (Eclipse Dust Control) that would be sold to end-users.
Before IWEP would accept the material from the generators, it had to meet all specifications in
TWEP’s own wood fuel procedure. j~. Factually then, the present situation is on-point with
IWEP.
The Board decided in IWEP that the wood material being utilized by IWEP was a waste
for several reasons. As opposed to other cases decided by the Board in which a material was not
found to be “discarded” and thus a waste, the wood material being utilized by TWEP was not
generated by IWEP. It was accepted from off-site generators, then further refined to conform to
IWEP’s own specifications of produced wood fuel. The wood material was not immediately
used or stored to be used, in that it was not a part ofthe generator’s ongoing process. The Board
concluded that the wood material was a waste. IWEP, p. 9.
The fact pattern in IWEP is almost identical to the facts here. The Petitioners are
accepting GBSM from an off-site generator (or generators), and will process the material to
conform to their own (versus permit or regulation-imposed) standards. The Petitioners note that
GBSM may be stockpiled in amounts as much as 5,000 tons for several months during the lull in
6
the Petitioners’ business cycle. Amended petition, pp. 11-12. The GBSM is therefore not a part
of any ongoing process, since that term as used by the Board only involved the generator’s
processes, and even if imputed to the Petitioners is not applicable since the Petitioners’
operations are not constant and continuous.
The Board in highlighted this reliance on the intermediate involvement of’ a petitioner in
Illinois Power. There, the Board distinguished earlier cases in which a material was found not to
be a waste since the petitioner seeking that finding was the generator of the waste, whereas in
IWEP the material was not generated by IWEP’s manufacturing process. Illinois Power, p. 13.
The Board stated that past decisions that a material was not a waste centered around the fact that
the material was generated by the company using the material and was part of its ongoing
process. Id.
-
The Board then went on to conclude that the alternate fuel product (i.e., not the material
being accepted by APT, but rather the material being produced and sold to Illinois Power by API)
was not a waste since it was a “valuable energy product” that exhibited no characteristics of
being discarded when utilized under conditions of Illinois Power’s proposal. Illinois Power, p.
14. The Board then distinguished IWEP by noting that Illinois Power was not manufacturing the
alternate fuel necessitating on-site handling and separating of waste material to conform to the
specifications of the alternate fuel. Id. The Board further noted that Illinois Power was not
transforming the containers on-site, but rather simply receiving the alternate fuel after it had been
processed. Also, the Board found that Illinois Power and API (operating then under the name of
“REI”) had sufficient control over the material to preclude an unknown contaminant from
entering into the alternate fuel. Illinois Power, p.
15.
Thus the Board concluded the alternate
fuel was not a waste.
7
That case is wholly different from the present matter. Here, the petitioner is not an end-
user ofthe Petitioners’ product, but rather is the intermediate party that accepts off-site generated
material for processing and later transfer/sale to the ultimate end-user. Also, the material in
question here is not the end product after intermediate processing (as was the alternate fuel in
Illinois Power), but rather is the material accepted from off-site generators fdr intermediate
processing (as was the wood material in IWEP).
Therefore, the Illinois Power case is clearly not applicable here, but the IWEP case is
applicable and controlling given that it is factually identical to the Petitioners’ situation.
Accordingly, any conclusion drawn from, or reliance upon, the Illinois Power case by the ~M~I
court is inapplicable to the present situation since the underlying facts in Illinois Power are
distinct from the facts at hand. The API court noted that it found no real distinction between the
product at the time it entered API’s facility and the product after it left, because the material is at
all times destined to become alternative fuel that is not discarded. AFT, 337 Ill. App. 3d at 866,
786 N.E.2d at 1069.
That conclusion cannot be arrived at here, since the facts relied on by the court in .~j
(e.g., the contractual arrangement regarding content ofmaterial, compliance ofmaterial to permit
specifications, analysis performed on material by generators for review and approval by
intermediate processor) have not been demonstrated here. It is very possible that had the Board
in Illinois Power been asked to review the question of whether the material being accepted by
APT/RET was a waste, it may have decided consistent with the TWEP case that the material was a
waste based on the factual considerations described in the Illinois Power decision. That question
was obviously not raised and thus not addressed, but that fact alone precludes the Petitioners
from citing favorably to either the Illinois Power or AFI decisions. Consistent with the analysis
8
and findings in IWEP, the Board should find that the GBSM described by the Petitioners is a
waste.
III. SECTION
104.406
FACTORS
For the reasons more fully set forth below, the Illinois EPA does not believe the
Petitioners have satisfactorily provided information required by Section 104.406’of the Board’s
procedural rules.
A. Section 104.406(a)
—
Standard from which adjusted standard is sought
The Illinois EPA has already raised concerns regarding the Petitioners’ attempt to seek an
-
adjusted standard from a statutory definition and the consequence of asking for an adjusted
standard for a regulatory definition that incorporates other regulatory standards that must thus be
considered. See, footnote 1. Those arguments and comments are incorporatecFhere.
B. Section 104.406(b)
—
Regulation of general
applicability
The Illinois EPA does not take issue with the Petitioners’ comments on this topic.
C. Section 104.406(c)
—
Level
of justification
The Illinois-EPA does not take issue with the Petitioners’ comments on this topic.
D. Section 104.406(d)
—
Description ofPetitioners’ activities
The Illinois EPA finds that even with the additional information provided by the
Petitioner in the amended petition and supplement to the amended petition, certain questions still
remain. For example, the petitioner has not provided specific information regarding the facility
in terms oflocations of the staging area, measuring area, and grinding and storage areas. A site
map, equipment list and written operating procedure would be advisable, as would time frames
for storage prior to and aftergrinding. The Petitioners did not clarify how the two different sites
identified in the amended petition (pages 3-4) are being utilized. Regarding the test results that
9
were described in the amended petition (pages 6-7), there is no information as to the exact
location of the test sections, the dates of application, the application rates, placement
specifications, ormethod used to determine that noise and dust were eliminated.
The Petitioners did not provide information explaining quality control procedures (to the
extent they may exist) that would ensure the quality of the GBSM used as feed stock, nor did
they explain whether any physical or chemical testing would be performed to ensure the
consistency of the material. Also, testing or measuring of the material as to placement and
compaction procedures and results were not provided.
The Petitioners did not provide a comparison of their product to an appropriate material
now being used routinely in road construction, including a comparison of the ASTM or DOT
specifications ofthe product to the Petitioners’ product characteristics.
-
The Petitioners did not provide any evaluations or test results as to content of toxic
substances in the Eclipse Dust Control (or in comparison to such substances existing in now-used
road material), including polynuclear aromatic hydrocarbons in the Eclipse Dust Control and
impact on air emissions at the grinding or paving site.
-
The Petitioners did not provide any information that demonstrates use of their product
would not have any adverse impact to cattle at a feed lot or on meat produced from such cattle.
There may be additional health risks present from the use ofthis material on walking or bicycle
paths due to inhalation ofparticles or vapors.
E. Section 104.406(e)
—
Compliance alternatives
The Petitioners have identified certain costs associated with compliance with the
regulations of general applicability, but have not provided the specific costs called for in the
regulations (i.e., overall capital costs as well as the annualized capital and operating costs)..
10
F. Section 104.406(f)
—
Proposed adjusted standard
The Illinois EPA reiterates its arguments and concerns over the Petitioners obtaining an
adjusted standard from a regulation that is taken, verbatim, from a statutory definition, as that
would result in the improper granting ofrelief from a statutory provision.
G. Section 104.406(g)
—
Impact on the environment
The Illinois EPA has raised a number ofunanswered questions and concerns in paragraph.
D. above that are incorporated here.
H. Section 104.406(h)
—
Justification
The Illinois EPA does not dispute the Petitioners’ statement that no level ofjustification
is specified for this situation. However, the Illinois EPA does contest the Petitioners’ statement
that the proposed adjusted standard is justified by the GBSM processing for reasons set forth
above.
I. Section 104.406(i)
—
Consistency with federal law
The Illinois EPA does not take issue with the Petitioners’ comment on this topic other
than to again note that adjusted standards are not an acceptable mechanism for obtaining relief
from a statutory provision.
J. Section
104.406(j)
—
Hearing
The Illinois EPA does not take issue with the Petitioners’ comment on this topic.
K. Section 104.406(k)
—
Supporting documents
The Illinois EPA contests the relevancy and applicability ofthe Illinois EPA’s May 1993
letter. Also, the documents related to the receipt of a grant from DCEO is not relevant to the
matter under review here and thus should not be considered; the grant was not awarded based on
any ofthe factors that will guide the Board in resolving the Petitioners’ request.
11
IV. SECTION 28.1(C) FACTORS
The Illinois EPA does not believe that the Petitioners have satisfactorily addressed all the
statutory requirements imposed by Section 28.1(c) ofthe Environmental Protectibn Act (“Act”)
(415 ILCS
5/28.1(c)).
A. Factors are different than those relied on
by
the Board
The Petitioners have not demonstrated that the factors before them (and now before the
Board) are substantially different or unique from circumstances before any other entity that seeks
to process a waste material. That the Petitioners are claiming that their process is a recycling
operation is not relevant, since the regulations from which they seek an adju~tedstandard were
promulgated with the purpose and intent ofapplicability with all provisions ofthe Act.
B. Existence offactors that justify an adjusted standard
The Petitioners have not demonstrated any factors that exist to justify an adjusted
standard, other than a desire to avoid having to comply with otherwise applicable regulatory
provisions.
C. Adverse environmental or health effects
As noted above, the Illinois EPA identified numerous examples ofpotential problems or
concerns that may relate to adverse environmental or health effects that were not addressed or
resolved by the Petitioners.
12
D. Consistency with federal law
The Illinois EPA does not take issue with the Petitioners’ comment on this topic other
than to again note that adjusted standards are not an acceptable mechanism for obtaining relief
from a statutory provision.
-
WHEREFORE,- for the reasons stated above, the Illinois EPA herebSr respectfully
requests that the Board deny the Petitioners’ request for an adjusted standard or, in the
alternative, a finding of inapplicability.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
JohinJ(Kim
Assistant Counsel
Special Assistant Attorney General
.
.
L
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
2 17/782-5544
217/782-9143 (TDD)
-
-
.
Dated: August 20, 2004
This filing submitted on recycled paper.
13
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on August 20, 2004, I served true
and correct copies of a MOTION FOR LEAVE TO FILE INSTANTER and
RECOMMENDATION, by- placing true and correct copies in properly sealed and addressed
envelopes and by depositing said sealed envelopes in a U.S. mail drop box iocated within
Springfield, Illinois, with sufficient First Class Mail postage affixed thereto, upon the following
named persons:
Dorothy M. Gunn, Clerk
Bradley P. Halloran, Hearing Officer
fllinois Pollution Control Board
illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
J~iTh
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
