IN THE MATTER OF:

)

)

PETITION OF WESTWOOD LANDS, INC.,

)

AS 09-03

A Michigan Corporation,

)

(Adjusted Standard – Land)

FOR ADJUSTED STANDARD FROM

)

PORTIONS OF 35 Ill. Adm. Code §807 and

)

§810 or, in the alternative, a FINDING OF

)

INAPPLICABILITY.

NOTICE OF FILING

Illinois Pollution Control Board

Attn: John Therriault, Clerk

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Swanson, Martin & Bell

Attn: Ms. Elizabeth S. Harvey

Mr. John P. Arranz

330 North Wabash Avenue

Suite 3300

Chicago, Illinois 60611

PLEASE TAKE NOTICE

that I have today filed with the office of the Clerk of the

Pollution Control Board an

APPEARANCE and RECOMMENDATION OF THE

ILLINOIS EPA

, copies of which are herewith served upon you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY

,

Respondent

____________________________

By: William D. Ingersoll

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 5, 2009

---

IN THE MATTER OF:

)

)

PETITION OF WESTWOOD LANDS, INC.,

)

AS 09-003

A Michigan Corporation,

)

(Adjusted Standard – Land)

FOR ADJUSTED STANDARD FROM

)

PORTIONS OF 35 Ill. Adm. Code §807 and

)

§810 or, in the alternative, a FINDING OF )

INAPPLICABILITY.

ENTRY OF APPEARANCE

NOW COMES

the undersigned, as counsel for and on the behalf of the Environmental

Protection Agency of the State of Illinois, and hereby enters his Appearance in the above

captioned matter.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

,

Respondent

By

____________________________

William D. Ingersoll

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: August 5, 2009

.

---

IN THE MATTER OF:

)

)

PETITION OF WESTWOOD LANDS, INC.,

)

AS 09-003

A Michigan Corporation,

)

(Adjusted Standard – Land)

FOR ADJUSTED STANDARD FROM

)

PORTIONS OF 35 Ill. Adm. Code §807 and

)

§810 or, in the alternative, a FINDING OF )

INAPPLICABILITY.

ILLINOIS EPA RECOMMENDATION

The ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ("Illinois EPA"), by its

attorney William D. Ingersoll, hereby submits its Recommendation in the above captioned matter.

This filing is submitted pursuant to Section 35 of the Illinois Environmental Protection Act

("EPAct") [415 ILCS 5/35 (2006)] and 35 Ill. Adm. Code

§

104

et seq

. For the reasons outlined

below, the Illinois EPA recommends that Westwood Land, Inc.’s Petition be

DENIED

.

I. INTRODUCTION

1.

On March 31, 2009, Westwood Lands Inc. ("Petitioner"), filed a Petition for

Adjusted Standard ("Petition") requesting relief from 35 Ill. Adm. Code Parts

807.104 and 810.103 or in the alternative a finding of inapplicability. (Petition at 1)

2.

According to the Petition, relief is sought from the “… panoply of regulatory

requirements imposed by the Act and by Parts 807 and 810.” (Petition at 8)

3.

A May 21, 2009, Pollution Control Board (“Board”) Order considering the Petition,

pursuant to Section 104.406(a), directed Petitioner to provide information.

Following consideration, the Board found that Petitioner did not provide all of the

information required for an Adjusted Standard Petition and that unless Westwood

offers adequate proof in an amended petitioner, the Board was not able to determine

that the required statutory factors have been satisfied and cannot grant the Petition.

(Order at 10)

4.

On June 22, 2009, Petitioner filed a pleading entitled Amended Petition For

Adjusted Standard (“Amended Petition”) with the Board.

5.

Within the Amended Petition, Petitioner attempts to incorporate its earlier pleading

and sets out its responses to the many questions posed within the May 21, 2009,

Order of the Board.

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

II. INVESTIGATION

6.

Notice of the Petition, pursuant to Section 28.1 of the EPAct and Section 104.408 of

the regulations, was issued and the Order found such met the notice requirement of

the Act and Board’s procedural rules. (Order at 10)

7.

To date, the Illinois EPA has not received a citizen inquiry.

8.

The Illinois EPA notes that, when it was captioning this matter for its

Recommendation, the pleadings failed to provide for the State of incorporation of

Westwood Lands Inc. A search of the Illinois Secretary of State’s database for

corporation and LLC/certificate of good standing failed to include registration by

Westwood Lands Inc. The Illinois EPA noted that in a July 28, 2008, permit

application to the Agency, the applicant was Westwood Lands, and provided an

address in Michigan. A Westwood Lands Inc. is a registered corporation of the State

of Michigan since 2004. It is presumed that this is the entity that seeks relief from

Illinois law.

III. REVIEW OF FACTS PRESENTED IN THE PETITION

•

RELIEF SOUGHT REVIEW

9.

The Petitioner states that it seeks alternate forms of relief; either, firstly, a finding

that steelmaking slag is not a waste under the Illinois Environmental Protection Act

(“EPAct”) (415 ILCS 5/ 1

et seq

) or, secondly, a finding of inapplicability of Board

regulation. (See: Petition at 1)

10.

Petitioner starts off its Petition in an attempt to frame the relief sought as requesting

the Board “… for an Adjusted Standard from portions of Section 807.104 and

810.103….” (Pet. at 1) Some time thereafter, however, Petitioner concludes its

Petition by providing that relief is sought from the “… panoply of regulatory

requirements imposed by the Act and by Parts 807 and 810.” (Petition at 8) The

Illinois EPA would offer that the latter description of the Petition’s request for relief

is much more accurate than the former.

11.

In support of its relief from regulation, Petitioner suggests that even if it is accepting,

treating, storing or processing a waste, that its facility not be subject to regulation,

apparently, under any of the Board’s waste regulations. This contention is bolstered

by the fact that Petitioner offers, as an alternative to a finding that they accept a

waste, an Adjusted Standard which would find that the definition of waste be

interpreted to exclude its site from definitions of facility, solid waste, waste, unit,

solid waste management, etc. (See: Petition at 9) In short, Westwood Lands Inc.

does not intend to seek relief from a regulation, it seek relief from any and all

possible regulation.

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

3

12.

Relief, in the form of an Adjusted Standard, should not be granted. Generally

speaking, Adjusted Standard Petitions are filed to seek specific relief from rules of

general applicability. In this case, Petitioner does not request specific relief within

its discussion of the matter, choosing instead to request general relief from Sections

of the law which provides definitions for the Parts within which they exist. As such,

relief, as requested, is not consistent with the pleading filed. As the Illinois EPA

noted within its Recommendation filed with the Board in

In the Matter of Petition

of Jo’Lyn Corporation and Falcon Waste and Recycling, Inc. for an Adjusted

Standard,

AS 04-02) (Hereinafter “

Jo’Lyn

”), included among the definitions in

Section 807.104 and 810 that are the subject of the Petitioner’s request are those of

“solid waste” and “waste.” Those definitions are taken from statutory definitions

found within Section 3.470 and 3.535 of the EPAct (415 ILCS 5/3.470, 3.535),

respectively. Although the Board has in the past considered matters that involved

the question of whether the material under review is a waste, in this case the

Petitioner seeks direct regulatory relief from what is clearly identified as a statutory

definition. Thus, a 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,”

the request is inappropriate since an adjusted standard cannot be granted to relieve a

statutory obligation or standard. And secondly, in this case Westwood does not

conceal and clearly expresses within this petition that if the slag is determined to be

waste, then Westwood would be required to seek local siting approval pursuant to

Section 39.2 of the EPAct. Once more, this essentially is an argument that Petitioner

seeks relief from the siting requirements within the EPAct and not regulations of

general applicability.

13.

What cannot be lost, however, is the central fact that, even though Petitioner offers

that it seeks an Adjusted Standard, Westwood has no intention of seeking relief from

regulations of general applicability and contends in both instances that no regulation

be forthcoming, exclusive of the possibility of permitting equipment under the

Bureau of Air permitting program.

14.

When you follow Petitioner’s argument to its conclusion, if, the Board were to find

that the material used is not a waste, the Board will likely find the proceeding moot

and that there would be no need for an Adjusted Standard. (See generally:

Jo’Lyn

)

What has not been reviewed is what occurs when the Board finds that a material

used is a waste. Again, Petitioner seeks “inapplicability” by an Adjusted Standard.

Yet, an Adjusted Standard is appropriate only when a facility demonstrates that a

regulation of general applicability does not fit the facility or that such facility’s

operation was not considered when the Board was promulgating the general

regulation. Thus, if the Board finds that the material used is a waste, in the Illinois

EPA’s opinion, it would not be reasonable for the Board to find the applicable

sections of the existing regulations inapplicable. Indeed, what would be more

reasonable would be for relief to be sought through site specific rule if it is found

that the general rules do not account for its facility. (See generally:

In the matter of

Petition of Ameren Energy Generating Company for Adjusted Standards from 35 Ill.

---

Adm. Code Parts 811, 814, 815,

AS 09-01). That is, assuming relief is warranted,

which the Illinois EPA does not concede.

15.

The other form of “relief” sought within this Petition for Adjusted Standard is

essentially a declaratory ruling regarding slag and the definition of “waste” within

the EPAct. The Illinois EPA finds such a request objectionable. As detailed more

fully below in a discussion of the merits of a finding relative to the definition of

waste, the Illinois EPA is limited in its Recommendation to petitions such as this one

to only information given voluntarily by the Petitioner with no procedural right to

compel, seek or review information and contentions made more deeply. Moreover,

as discussed below, the caselaw does not support Westwood’s request. As such, a

declaratory action type of review should not be entertained, nor should the Board

grant relief based upon that type of rationale in this proceeding.

•

INTRODUCTION REVIEW

16.

Within the Petitions

Introduction

, Westwood acknowledges that it applied to the

Illinois EPA for an air permit to construct the facility and that Illinois EPA found the

application to be incomplete. (Petition at 2) Westwood goes on to note that “[i]n

addition to questions about air emissions for the facility, [Illinois EPA] found the

permit application to be incomplete because Westwood had not included proof of

local siting approval pursuant to Section 39(c) of the Act.” (Petition at 2) Initially,

this statement is at the same time both a gross under-characterization and over-

characterization of the denial. Of the five page letter, only a very few lines of relate

to proof of local siting approval. (See: Petition, Exhibit B, page 3) As such, the

vast majority of issues identified within the denial deal with matters other than

denial based upon proof of siting. Moreover, since this denial, Westwood has not

responded to the denial points within the Agency’s August 25, 2008, denial letter.

So, more issues than just presented in the Petition exist with permitting the facility

and operating the site and that point deserves more attention than just noting that

there were “questions about air emissions.” As such, this Introduction over-sells the

siting issue and under-sells the many other issues confronting issuance of the permit

requested.

17.

More importantly, Illinois EPA states within this denial point that “… [t]he letters

provided with the application did not demonstrate compliance by holding a public

hearing, along with other procedural requirement of Section 39.2 of the Act.”

(Petition, Exhibit B, page 3) Now, Petitioner itself submitted with its permit

application the July 10, 2008, letter from John W. Hamm III, Mayor of the City of

Madison, Illinois and the July 1, 2008, letter of John T. Papa, City Attorney.

Noteworthy is the fact that Petitioner awaited the issuance of these letters when

submitting its application to the Illinois EPA, which was received by the Illinois

EPA on July 28, 2008. It is curious, to say the least, for an applicant for a permit to

submit documentation letters, one providing expressly that the Petitioner’s request

for local siting approval was accepted and then complain about the reviewing

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

Agency considering such information in the decision process. (See: Petition:

Exhibits D and E)

Furthermore, Petitioner had an opportunity to address this very issue before the

Board had it appealed the Illinois EPA’s denial letter within the statutory timeframe.

As such, discussion of the matter should be suspect.

•

CASELAW REVIEW

18.

Petitioner, from pages 2 through 5 of the Petition, offers arguments within a Section

entitled “

The Material Used is Not A ‘Waste’

.” Essentially, this Section contains

Petitioner’s contention that the material it intends to accept is not a “waste” and,

therefore the requirements of Parts 807 and 810 should not apply. (See: Petition at

3)

19.

Petitioner opens its discussion by claiming that “… [t]he Board has previously

recognized that an adjusted standard petition can, in the alternative, seek a finding of

inapplicability.” (See: Petition at 2) Yet, the caselaw relied upon by Westwood is

not supportive of its arguments and facts are very different from previous analysis

and decisions.

20.

Regarding Petitioner’s contention that a finding of declaratory relief/ inapplicability

is supported by caselaw, Illinois EPA notes that the facts presented within this action

differ significantly from

Jo’Lyn

. As discussed briefly above, Petitioner has filed an

application for a construction permit and provided documents from the unit of local

authority to establish that approval for the site had been granted. One document

states expressly that “local siting approval” had been approved. (See: Petition,

Exhibit D) It is arguable that Petitioner has had its bite of the siting issue apple and

as such the Board should not exercise extraordinary jurisdiction or relief requesting a

second bite at the issue, especially when Petitioner itself raised and failed to follow-

up on this issue.

21.

Westwood’s analysis of caselaw also neglects to consider some key analysis points

within

Alternate Fuels, Inc. v. Director of the Illinois Environmental Protection

Agency,

(2005) 215 Ill.2d 219 (Hereinafter “

AFI

”). Westwood does note that the

Supreme Court provides that the EPAct contemplates that materials that may

otherwise be discarded by the supplier may be diverted from becoming waste and

returned to the economic mainstream. (See:

AFI,

830 N.E.2d 444, 457) However,

absent from discussion is the analysis of the term “discarded” in Section 3.380 of the

EPAct, which reads as follows:

“ ‘Recycling, reclamation or reuse’ means a

method, technique, or process designed to remove

any contaminant from waste so as to render such

waste reusable, or any process by which materials

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

6

that would otherwise be disposed of or discarded are

collected, separated or processed and returned to the

economic mainstream in the form of raw materials or

products.” (See: 415 ILCS 5/3.380)

22.

The

AFI

court continues with its reasoning by noting that “[u]nder this phrasing the

legislature has categorized items that may be recycled, reclaimed, or reused into two

main categories: (1) “waste” from which contaminants may be removed and (2)

“materials.” According to the court, “[m]aterials are further subdivided into those

that are “discarded” and those “materials that would otherwise be disposed of or

discarded [which] are collected, separated or processed and returned to the economic

mainstream in the form of raw materials or products.” (

AFI,

830 N.E.2d 444, 456)

23.

As such, it is not as easy to conclude, as Westwood suggests, that a material is not a

waste if it is returned to the economic mainstream. (See: Petition at 4) What is

necessary is for a review of the “waste” or “material” to occur. Recycling, reuse and

reclamation occur to two categories: (1) waste or (2) material, which could also be

discarded. Steel slag, from multiple sources, which contain material Petitioner itself

acknowledges must be removed and disposed of would likely fall more

characteristically within the definition of “waste” under this analysis than under

“material.” Westwood states that its process “…liberate[s] the metallic iron and the

iron oxides from the slag, for reuse.”(See: Petition at 7) The Illinois EPA would

highlight that even Petitioner recognizes that the metal is liberated/removed from the

“slag” which apparently it is within. Petitioner continues in its discussion and

provides that “… a small amount of material from the process that will be

transported off-site to a landfill.” (See: Petition at 8) Yet, in its Amended Petition,

Westwood reveals that “… [r]oughly one-third by weight of the raw material (the

steelmaking slag fines) will be usable product (the nuggets and briquettes), while the

remaining two-thirds will be the calcium magnesium sulfate” which will be disposed

of at landfills. In footnote 5 of the above sentence, Westwood takes back the use of

the term “small” in its Petition. (See: Amended Petition at 8) Where approximately

67 percent of a material must be removed and discarded from the slag accepted at

this facility, it is arguable that the slag is a “waste” under the two categories test.

24.

Also, it is instructive to note that the

AFI

court expressly recognized that when

reviewing a statutory enactment, a reviewing authority must not read each sentence

in isolation but, rather, interpret each sentence in light of other relevant provisions.

(See:

AFI,

830 N.E.2d 444, 455) Steelmaking slag is included within Subtitle G of

Title 35 of the Illinois Administrative Code, Part 817 which establishes regulations

for new steel and foundry industry wastes landfills. The “Scope and Applicability”

(Section 817.101) identifies “steelmaking slags” within several subsections as a

waste from this industry. This Section provides that such may be used, if not

prohibited or if approved by the Agency, for certain purposes. If, as stated, uses can

be otherwise prohibited or discretionally approved by the Agency, it stands to reason

that this slag is a waste to be reviewed by Illinois EPA. Again, under the

AFI

---

7

review, all portions of a relevant statutory enactment should be read as a whole,

which would require recognition that the Board has expressly noted this type of

waste as something that may be addressed within its regulatory framework.

25.

Similarly, Section 810.103 contains definitions for the term “slag” and “steel slag”

which would tend to be an express recognition by the Board that such material is

intended to exist within the regulatory framework of the Board’s regulations.

26.

Westwood argues that the Board’s decision in

Jo’Lyn

favors its position in this

matter and a finding that since some of the material may be returned to the

generating facility the Board should find the slag not a waste is also unpersuasive.

Yet, in

Jo’Lyn

, the Board specifically found “… that the petitioners, again like in

AFI, are not removing any contaminant from waste. In fact, no contaminants are

removed from the GBSM at all. Therefore, the GBSM is a ‘material.’” (See:

Jo’Lyn

at 13) Once again, the Petition is silent on a discussion relative to the

removal of 2/3 of the slag during its process and the ultimate disposal of the

contaminants that comprise the slag which are not metal.

27.

Other facts (or lack thereof) make this proceeding quite different from the caselaw

relied upon by Petitioner. Initially, the Illinois EPA does feel that it is most difficult

to review claims that a valid contract exists when key terms such as price, royalties,

right of refusal as well as other terms are excluded under a claim of “trade secret.”

Although such law may curtail the necessity to reveal information to third parties

under a request for information, it is different when the Petitioner is voluntarily

submitting such documents as proof of a point and using them to establish the

validity of their claim that a valid contract exists.

28.

Further, the contract attached to the Petition, includes a Section for

Greenhouse Gas

Credits

which has been entirely redacted. Illinois EPA is unable to review how a

gas credit affects whether an actual purchase of the slag has occurred since it is

unable to review the details deleted. (See: Petition, Exhibit A page 16) And, what

can be found does not support Westwood’s argument. For example, Westwood

within its Amended Petition provides that “[t]he contract between Westwood and

U.S. Steel (included as Exhibit A to the petition) includes provisions for U.S. Steel

to purchase Westwood’s products (See: Redacted Section 10 of Exhibit A, Claimed

as trade secret [Foot Note 4].” (See: Amended Petition at 7) However, the entirety

of Section 10 of Exhibit A is deleted. What can be determined, and only from the

Title to Subsection 10, is that the section, apparently, provides for “

royalties and/or

right of first refusal to purchase

.” Generally speaking, since that is the most that

may be done when presented with only an un-redacted title to a subsection and

nothing more, a “right of first refusal” is, as the phrase implies, a first opportunity to

purchase, and a discretionary option to purchase and not a classic binding contract to

purchase, as may be inferred by the Petition. Furthermore, the Illinois EPA would

ask the Board’s consideration of the inequity of allowing a Petitioner to offer a

contract and provision within that contract as a basis of proving a point and then, in

---

the same pleading, withhold such information from review. Where a person

voluntarily subjects something as a basis for argument, that person should not be

heard to claim limits on review of the information that is the basis for that argument.

29.

For that matter, it is very difficult to reconcile Petitioner’s arguments regarding the

product it intends to produce. As noted above, Petitioner claims a contract to sell

with U.S. Steel, and in the next breath states that “[b]ecause the product will be sold

on the open market to steel manufacturers … .” (See: Amended Petition at 8) The

“contract” with U.S. Steel is questionable for the reasons stated herein and as for

sale on the open market, Westwood has failed to provide proof of that and at best a

market must be presumed to go any further with discussion. The Illinois EPA is not

able to engage in argument on a presumption.

30.

It should, at very least, be incumbent upon a Petitioner seeking relief from

regulations (declaratory judgment/finding of inapplicability - and the like) to provide

all relevant terms and conditions to at least some legally binding commercial

transaction with a third party concerning a newly created raw material or product.

•

ADUSTED STANDARD REQUEST REVIEW

31.

The Illinois EPA will continue with its Recommendation and provide comment

required by Board regulations, even though the Illinois EPA believes that relief in

not appropriate in this matter due to the Petition seeking relief from mere definitions

contained within the Board’s regulations, as well as, identical definitions contained

within the EPAct.

35 Ill. Adm. Code Section §104.406(a)

32.

The Board promulgated the requirements of 35 Ill. Adm. Code Part 807 as adopted

by emergency rule and filed with the Secretary of State on July 27, 1973. The

following administrative changes have occurred to Part 807:

Adopted as an emergency rule and filed with the Secretary

of State July 27, 1973; amended at 2 Ill. Reg. 16, p. 3,

effective April 10, 1978; codified at 7 Ill. Reg. 13636;

recodified from Subchapter h to Subchapter i at 8 Ill. Reg.

13198; emergency amendment in R84-22A at 9 Ill. Reg.

741, effective January 3, 1985, for a maximum of 150 days;

amended in R84-22B at 9 Ill. Reg. 6722, effective April 29,

1985; amended in R84-22C at 9 Ill. Reg. 18942, effective

November 25, 1985; amended in R84-45 at 12 Ill. Reg.

15566, effective September 14, 1988; amended in R88-7 at

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

9

14 Ill. Reg. 15832, effective September 18, 1990;

emergency amendment in R93-25 at 17 Ill. Reg. 17268,

effective September 24, 1993, for a maximum of 150 days;

amended in R90-26 at 18 Ill. Reg. 12451, effective August

1, 1994; amended in R96-1 at 20 Ill. Reg. 12459, effective

August 15, 1996.

Section 807.104 was amended at 9 Ill. Reg. 18942, effective November 25, 1985.

33.

The Board promulgated the requirements of 35 Ill. Adm. Code Part 810 as part of

R88-7 at 14 Ill. Reg. 15838, effective September 18, 1990. The following

administrative changes have occurred to Part 810:

Amended in R93-10 at 18 Ill. Reg. 1268, effective January

13, 1994; amended in R90-26 at 18 Ill. Reg. 12457,

effective August 1, 1994; amended in R95-9 at 19 Ill. Reg.

14427, effective September 29, 1995; amended in R96-1 at

20 Ill. Reg. 11985, effective August 15, 1996; amended in

R97-20 at 21 Ill. Reg. 15825, effective November 25, 1997;

amended in R04-5/R04-15 at 28 Ill. Reg. 9090, effective

June 18, 2004; amended in R05-1 at 29 Ill. Reg. 5028,

effective March 22, 2005; amended in R06-5/R06-6/R06-7

at 30 Ill. Reg. 4130, effective February 23, 2006; amended

in R06-16/R06-17/R06-18 at 31 Ill. Reg. 1425, effective

December 20, 2006; amended in R07-8 at 31 Ill. Reg.

16166, effective November 27, 2007.

Section 810.103 was amended at 19 Ill. Reg. 11985, effective August

15, 1996.

34.

As noted above, Sections 807.104 and 810.103 of 35 Ill. Adm. Code Parts 807 and

810, respectively, are definitional sections. Both Sections 807.104 and 810.103 are

enactments which define terms used within the Board’s regulations. Thus, there is

no “standard” from which this adjusted standard is sought. (See: 35 Ill. Adm. Code

Section 104.406(a)) No regulation of general applicability exists from which relief

is sought.

35 Ill. Adm. Code §104.406(b)

35.

The regulation/definition(s) of general applicability were not promulgated to

implement, in whole of in part, the requirements of the CWA (33 USC 1251 et seq.),

CAA (42 USC 7401 et seq.), or the State programs concerning UIC or NPDES [415

---

ILCS 5/28.1]. Concerning the Resource Conservation and Recovery Act of 1976

(42 U.S.C. 6901 et seq.) (“RCRA”), the Illinois EPA would suggest that Part 810 of

the regulations was proposed in response to the requirement of Subtitle D – State or

Regional Solid Waste Plans. (See: Section 4001 of RCRA) As noted within the

“Scope and Applicability” section of Subpart A of Part 811 (Standards for New

Solid Waste Landfills), the standards adopted in that part that are identical-in-

substance to the federal regulations promulgated by the U.S. Environmental

Protection Agency pursuant to Sections 4004 and 4010 of the RCRA relating to

Municipal Solid Waste Landfill program. (See:

35 Ill. Adm. Code

811.101(c)(1)(B))

LEVEL OF JUSTIFICAITON

35 Ill. Adm. Code §104.406(c)

36.

The regulations (or, in this case, “definitions”) do not specify a level of justification

or other requirements.

35 Ill. Adm. Code §104.406(d)

37.

At this time, based upon the information submitted, the Illinois EPA can only state

that Petitioner intends to process slag from one source and hopes to return the metal

part of the slag back to the source that generated the slag. Within Westwood’s

review of its own process, Westwood states that the contract specifically allows

Westwood to reject any fines which do not comply with the parameters necessary

for Westwood’s process. (See: Petition at 7) Westwood directs attention to Section

4.2 of the contract. Yet, this provision provides little insight into what Petitioner

claims. The contract section merely provides that Westwood must be presented with

the opportunity to inspect prior to purchase and may reject slag that may have a

chemical analysis that does not fit the parameters needed to make a quality product.

Petitioner has granted itself an “opportunity” to inspect without specificity. This

Section does not direct inspection at any intervals, on any given type of slag, with

any specific analysis, based upon any articulated parameters, and is ultimately

discretionary relative to rejection. There is virtually nothing to review and comment

on other than assurances that Westwood may control the quality of the slag

purchased.

38.

For that matter, the State is left to wonder if different standards, parameters, tests or

rejections will be made for each and every slag Westwood may purchase.

39.

Westwood has failed to explain the economics of the reclamation process to

demonstrate the activity is not sham recycling. At a minimum, for a rational review,

the Petition should provide an explanation which includes the value of the material

after reclamation, the cost associated with the process and the slag purchase price.

As discussed; all cost/price information offered has been redacted. Also, Petitioner

Electronic Filing - Received, Clerk's Office, August 5, 2009

---

11

should have provided the price per pound basis and what percentage of iron is

present in the finished product and approximate weight per cubic foot.

40.

Under Sections 2 through 5 of the Amended Petitioner, Westwood indicated that the

material is not hazardous waste; however, Exhibit G of the Petitioner which was

provided to demonstrate the waste is not characteristically hazardous waste indicates

the sample was not prepared using the TCLP test method 1311 in SW 846. As such,

the results would be inconclusive on this point.

41.

Under Sections 7 and 16 of Westwood’s Amended Petition, the company argues that

testing of each load would render the process unworkable. However, some testing at

some frequency should be conducted on arriving loads. The type of testing and

frequency should be proposed by the Petitioner. Total metals testing may be

appropriate since the Petitioner argues this is the only parameter needed to be tested

to verify that the produced product is economically saleable. Frequency of sampling

should be based on the variability of the slag.

42.

Under Section 16 of the Amended Petition, Westwood fails to provide detailed

procedures that would be used to determine when a load of slag is unacceptable.

43.

Regarding, Sections 16 and 19, Westwood fails to provide the parameters and

specifications for the martial accepted at the facility for processing and explain how

the specifications and parameters ensure that the slag is acceptable for processing

into a product.

35 Ill. Adm. Code §104.406(e)

44.

Within its description of compliance efforts and alternatives, Westwood offers that if

the slag is a waste, then they will be forced to comply fully with regulations imposed

by the EPAct and regulations. (See: Petition at 8 and 9) This is an interesting

argument, especially when you consider the fact that Petitioner itself within its

Petition provides that “Westwood will operate the facility in compliance with other

provisions of the Environmental Protection Act.” (Petition at 10) No argument is

given to what regulation within Sections 807 or 810 are objectionable as they relate

to operation or construction of the facility. No reason is given for why these

regulations are not appropriate. And, once again, Section 810 contains only four

Sections (Scope and Applicability, Severability, Definitions and Incorporations by

Reference). It is hard to fathom what the objectionable regulation is concealed

within these provisions from which relief must be sought. And, Westwood

acknowledges that it will need permitting for some of its equipment by the Illinois

EPA’s Bureau of Air. (See: Petition at 10, footnote 5)

45.

All in all, Petitioner does not identify any single regulation of general applicability to

discuss why compliance with such regulation is at issue. Westwood posits simply

that regulatory requirements would be many and, significantly, that Westwood

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12

would be required to seek local siting approval pursuant to Section 39.2 of the

EPAct. In this light, Petitioner comes full circle; identifying that at the very heart of

this Adjusted Standard Petitioner it seeks relief from the EPAct. Such relief is not

appropriate, even if local siting approval is claimed to be expensive. Even accepting

some debate on this issue,

arguendo

, Illinois EPA is not aware of any suggestion

that the cost associated with siting approval is more prohibitive on this company

than any other company seeking such approval within the unit of local government.

As such, it is difficult to reason, as Petitioner attempts, that the Board could find that

factors relating to the Petitioner are substantially and significantly different from the

factors relied upon by the Board in adopting the general regulations applicable to the

Petitioner, and as such, grant an Adjusted Standard.

46.

The Illinois EPA cannot respond to the mere contention that compliance with Part

807 is cost-prohibitive without Petitioner providing some basis for this conclusion.

(See: Petition at 9)

35 Ill. Adm. Code §104.406(f)

47.

The Illinois EPA notes the language proposed by Petitioner in at page 9 of the

Petition, but can not agree to such.

35 Ill. Adm. Code §104.406(g)

48.

The Illinois EPA does not take issue, generally, with the representations made by

Petitioner concerning environmental impact.

35 Ill. Adm. Code §104.406(h)

49.

The Burden of Proof contained at Section 104.426 states those matters the Board

should consider in rendering a decision regarding a Petition for Adjusted Standard.

(See also: Section 27(a) of the EPAct, 415 ILCS 5/27(a)) The Illinois EPA would

reassert that requesting relief from definitions is not the starting point for discussion

of the application of regulation to a waste.

50.

Once again, taken in total, it is difficult to suggest that the Board could find that

factors relating to the Petitioner are substantially and significantly different from the

factors relied upon by the Board in adopting the general regulations applicable to the

Petitioner, and as such, grant an Adjusted Standard based upon this rationale.

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13

35 Ill. Adm. Code §104.406(i)

51.

No direct issues regarding compliance with Federal law were identified during the

review of this matter.

WAIVER OF HEARING

35 Ill. Adm. Code §104.406(j)

52.

The Illinois EPA does not request a hearing regarding this matter.

V. RECOMMENDATION

A thorough review of the petition for relief was made by Illinois EPA technical staff.

The Illinois EPA concludes that insufficient justification has been made to

sufficiently justify allowing Petitioner to be granted an Adjusted Standard, a finding

of inapplicability or declaratory relief.

Based upon the forgoing, the Illinois EPA recommends that the Board

DENY

Westwood's Petition for Adjusted Standard.

Respectfully submitted,

OF THE STATE OF ILLINOIS

By:

_____________________

William D. Ingersoll

Division of Legal Counsel

Of Counsel: Kyle Nash Davis

DATED: August 5, 2009

1021 North Grand Ave. East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

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CERTIFICATE OF SERVICE

I, the undersigned, certify that I served the attached Notice of Filing, Appearance and

Illinois EPA Recommendation on August 5, 2009 by electronic filing and first class mail, as

indicated below, upon the following persons:

Illinois Pollution Control Board

Attn: John Therriault, Clerk

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(By Electronic Filing)

Swanson, Martin & Bell

Attn: Ms. Elizabeth S. Harvey

Mr. John P. Arranz

330 North Wabash Avenue

Suite 3300

Chicago, Illinois 60611

(By First Class Mail)

______________________________

William D. Ingersoll

Electronic Filing - Received, Clerk's Office, August 5, 2009