IN THE
MATTER OF:
)
PETITION OF
WESTWOOD
LANDS
)
INC. for an
ADJUSTED STANDARD from)
portions of 35
Ill.Adm.Code
807.104
and
)
35
Ill.Adm.Code
810.103, or
)
in the
alternative, A FINDING
OF
)
INAPPLICABILITY.
)
To:
(See
attached
Service List.)
NOTICE
OF FILING
PLEASE
TAKE NOTICE
that
on
this 21St day of August 2009, the
following was filed
with the
Illinois Pollution
Control Board: Petitioner Westwood
Lands
Inc.’s Response
to
IEPA
Recommendation,
which is attached and herewith served upon you.
Elizabeth S. Harvey
John P.
Arranz
Swanson, Martin
& Bell, LLP
330
North
Wabash
Avenue
Suite
3300
Chicago,
IL 60611
312.321.9100
312.321.0990
(facsimile)
WESTWOOD LANDS INC.
CERTIFICATE
OF SERVICE
I,
the undersigned
non-attorney, state that I served
a copy of
the above-described document
to
counsel
of record
via U.S. Mail at 330 North Wabash Avenue, Chicago, IL 60611, at or before 5:00
p.m.
on
August 21,
2009.
[xl
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.
Z.Poin
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOAEgVEb
s
OFFICE
AS 09-03
(Adjusted Standard —
AUG
2009
conroI
oltsatto/nj
4376-001
SERVICE
LIST
Westwood
Lands,
Inc.
v. Illinois
Environmental
Protection
Agency
AS
09-03
(Adjusted
Standard
—
Land)
William
Ingersoll
Division of
Legal
Counsel
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
P.O.
Box 19276
Springfield,
Illinois
62794-9276
4376-001
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
INTHEMATTEROF:
)
)
PETITION
OF
WESTWOOD
LANDS
)
INC.
for an
ADJUSTED
STANDARD
from)
portions
of 35
lII.Adm.Code
807.104
and
)
35
III.Adm.Code
810.103,
or
)
in
the
alternative,
A
FINDING
OF
)
INAPPLICABILITY.
RESPONSE
TO
IEPA RECOMMENDATION
Petitioner
WESTWOOD
LANDS,
INC.
(“Westwood”),
by its
attorneys
Swanson
Martin
&
Bell
LLP,
hereby
responds
to
the Illinois
Environmental
Protection
Agency’s
(“IEPA”)
recommendation.
IEPA’s
recommendation
was
served
upon
Westwood
on
August 7,
2009.
INTRODUCTION
Westwood
1
is disappointed
that
IEPA
has recommended
a denial of
Westwood’s
petition.
IEPA
has not
identified
any
risk
of environmental
harm
from
Westwood’s
process.
In
fact, IEPA
admits
that
it does
not
take
issue with
Westwood’s
explanation
that there
are
no adverse
environmental
or
health
effects.
(Recommendation (“Rec.”)
at par.
48.)
Instead,
IEPA
asserts
objections
that equate
to “we
don’t like
it.”
IEPA’s
arguments
are
short-sighted,
and in some
cases
incorrect
or irrelevant.
Unfortunately,
IEPA
has historically
put
roadblocks
in the
way
of
entities
who
seek to
use
material,
that might
otherwise
be
discarded,
to
create a
useful product.
In
Alternate
Fuels
Inc. v.
IEPA,
830 N.E.2d
444
(2005),
IEPA
pursued
the producer
of
a
fuel made
from
empty
plastic
containers
for allegedly
operating
without
a waste
permit,
JEPA is
correct
that
Westwood
Lands
is incorporated
under
the
laws of the
state
of Michigan.
BECEVED
CLERK’S
OFFICE
AS
09-03
(Adjusted
Standard
-- Land)
AUG
2
1
20t39
STATE
OF
ILLINOIS
Pollution
Control
Board
despite
the
fact that
the
Pollution
Control
Board
had already
found that
the fuel
produced
from
the
containers
was not a
“waste.”
Illinois Power Co.
V. IEPA,
PCB
97-37
and
97-36
(January 23, 1997).
The Illinois
Supreme
Court found
that the plastic
containers
were not
“waste”;
thus, under the
plain language
of the
Environmental
Protection
Act
(“Act”),
no
waste
permit was
required. 830
N.E.2d at 456-457.
After
this holding,
IEPA
continued
to
insist
that the producer
of
an
alternate
paving
product,
made
from
scraps of
pre-consumer
roofing materials,
needed a waste
permit. In Petition
of Jo’Lyn
Corporation
and
Falcon
Waste and
Recycling, Inc.
for an
Adjusted
Standard,
AS
04-2 (April 7,
2005), the
Board applied the
AFI
decision
and
found
that
the
raw material
(the
roofing
materials)
was
not
a
“waste.” Jo’Lyn,
AS 04-2,
at
p.
14.
Now,
despite
the Board’s
thorough
analysis in Jo’Lyn,
and the
Illinois
Supreme
Court’s
decision in
AFI
2,IEPA once
again takes
the position
that the raw
material used
by
Westwood
is a
“waste”.
Thus,
Westwood
has filed its
petition
3
to
demonstrate
to the
Board that
Westwood’s
raw material is
not
a
“waste”
when used
in Westwood’s process
to make a
useful
product.
Westwood
recognizes and
supports
IEPA’s
interest in protecting
the
environment,
ensuring
that
waste
does
not contaminate
the
environment, and regulating
entities who
handle
waste. However,
Westwood
does not handle “waste.”
Westwood’s
process
will take
a
material
that might otherwise
sit unused,
and return that
material to
the
economic
mainstream
by
producing
a useful product.
Westwood asks
the Board
to
2
When the
Board made its
decision in Jo’Lyn,
it noted that the
Illinois Supreme Court
had not yet
ruled
upon
IEPA’s
petition for rehearing
in the
AFI
decision. The court
subsequently rejected
the
arguments made
by
IEPA
on rehearing and
affirmed that the material
was not a
“waste.” 830 N.E.2d
at
456-459
(as
modified
on June 16,
2005).
Westwood filed
its petition on March
31, 2009, and an
amended petition
on June 22, 2009.
Westwood
will
refer to those two documents,
together,
as
“the petition.”
2
look beyond the
rhetoric of IEPA’s recommendation, consider
the facts
and
legal
analysis demonstrated by
Westwood,
and
grant Westwood’s petition.
ARGUMENT
WestWood’s
petition seeks alternative forms of relief.
First, Westwood seeks
a
finding of inapplicability.
Westwood’s petition demonstrates
that, pursuant to Illinois
Supreme Court as well as Pollution
Control
Board
precedent, the definition of “waste” is
inapplicable to the raw
material
used by Westwood. Because
the raw
material
is
not
a
“waste,” it
cannot
be
regulated
as a
“waste.” Alternatively, if the Board disagrees and
finds that the
raw material is
a
“waste,” Westwood seeks an adjusted standard from the
identified
definitions of Section 807.104 and
Section
810.103.
Westwood will not reiterate the arguments made in its petition and amended
petition
for adjusted standard. Instead, Westwood responds to the claims raised
by
IEPA.
The raw material used by Westwood is not a “waste.”
Westwood has demonstrated that the raw
material
used
in its process --
steelmaking slag fines -- is not a “waste” as defined by the Act. Because the material
is
not a
“waste,” Westwood does not need to obtain a waste permit from IEPA. (Petition
at
pp
2-6.)
This
conclusion is supported
by
the Illinois Supreme Court’s
decision in AFI,
and by the
Board’s decision in Jo’Lyn.
IEPA
raises the
following allegations in
an
attempt to distinguish
Westwood’s
process from those decisions.
Westwood seeks an adjusted standard from the Section
807.104 definitions of “facility,” “solid
waste,”
“solid
waste management,”
“waste,” and “unit”. Westwood also requests
an
adjusted standard
from
the Section
810.103 definitions
of “facility,” “landfill,” and “solid waste.”
3
1.
JEPA asserts that
because Westwood, when applying
for a construction
permit, provided
documents
that purported to
grant “local siting approval,” somehow
Westwood has had its “bite at
the
apple.” Such a claim is absurd. •IEPA technical staff
told Westwood to obtain “local siting
approval” before refiling its construction
permit
application. Westwood, which was not represented
by counsel at the time,
5attempted
to comply with IEPA’s direction. Westwood
sought “local siting approval” from the
local
government (the City of Madison)
and submitted letters from
Madison as part of
its
permit application. (See Exhibits D and 6
F.) One
area in which IEPA and Westwood
are in agreement is
that
the letters do not
satisfy
the
requirements of Section
39.2.
(See Exhibit B,
IEPA
notice of incompleteness,
at par.
3(b).)
IEPA’s
suggestion that
Westwood’s
inclusion of material
in its application,
provided at the direction
of IEPA,
should
now prohibit Westwood from
pursuing a finding
of inapplicability
is ridiculous.
2.
Equally absurd
is IEPA’s complaint that
Westwood should have
filed
an
appeal of IEPA’s
notice
of incompleteness
instead of pursuing
this petition. IEPA
has
cited no statute, regulation, or case
decision that an
applicant cannot
choose its
available remedies from the options provided
by the Act.
3.
In
attempting
to distinguish the instant
case from
AFI and Jo’Lyn,
IEPA
asserts
that because Part
817 of the Board’s
rules contains
provisions
addressing
It would be
inefficient
and unfortunate
if every entity
seeking
a
permit
from IEPA would
feel the
need
to retain an attorney when
applying to IEPA for
every permit.
It would
be
even
more
unfortunate if
an entity
were subsequently punished
by IEPA for
not
retaining
an attorney
when attempting to
follow
IEPA’s
direction.
6
Exhibits
A-F are
attached
to Westwood’s
March 31,
2009 petition,
and Exhibit
G
is
attached to
the
amended petition filed on June 22, 2009.
Westwood included Exhibits D
and E with its
petition to
demonstrate that the local
government
is
supportive of Westwood’s facility. Westwood
does
not contend that
those letters
are sufficient
under
Section 39.2.
4
“steelmaking
slag,”
that means
the
slag is “waste” under
Board rules.
IEPA overlooks
two
important
points.
First,
Part 817 is titled
“Requirements
for
New
Steel
and Foundry
Industry
Waste Landfills.”
Westwood does
not seek to
construct or operate
a steel and
foundry
industry
waste
landfill.
Second, and
dispositive of
the issue of Part
817’s
applicability,
is
that Part
817
specifically exempts
the use of
steelmaking
slags
as
ingredients
to make a
product. (Amended
Petition,
p.
16,
fn. 10.)
Section 817.101(f)
provides: “This
Part shall
not
apply
to the
use
or reuse
of iron and
steelmaking
slags
and
foundry sands
as
ingredients
in an
industrial
process to
make a
product.”
This
definition
fits
Westwood’s process
perfectly. Westwood
uses
“steelmaking slags”
as
“ingredients
in an
industrial process
to make a product.”
Thus, by
the specific terms
of
Section
817.101(f), Part
817
does
not apply to Westwood’s
process.
4.
IEPA
erroneously
asserts
that
Westwood’s
discussion of
the applicability
of
the AFI
and
Jo’Lyn
decisions does not
include
analysis
of
the term
“discarded.”
On
the
contrary,
Westwood’s
discussion
of
the AFI and Jo’Lyn
decisions includes
that
analysis
of “discarded.”
(Pet. at
pp
3-5.)
In short, the AFI
court found
that
the Act
“contemplates
that materials
that may otherwise
be discarded by
the supplier
may be
diverted
from
becoming
waste and
returned
to the economic
mainstream.”
830 N.E.2d
at
457.
Like
AFI,
Westwood
uses materials
-- in Westwood’s
case, slag fines --
that
might
otherwise
be
discarded,
but
can be
returned to the economic
mainstream
by
recycling.
5.
IEPA
also claims
that Westwood’s
process is distinguishable
from the
situations
in
AFI and
Jo’Lyn because Westwood’s
process
results in a silicate
material
that,
at present,
is
proposed
to
be placed
in a
landfill.
IEPA
does not explain,
however,
5
how the fact
that the
silicate
material is
produced as part of the process
makes the slag
fines
themselves “waste.”
Further,
as
explained in Westwood’s
petition, Westwood
believes
beneficial uses
for this silicate from Westwood’s
process will be available to -
Westgate
shortly. Among those possible uses are
landfill cover, construction usessuch
• as
additives to
paving products, and
agricultural
uses
such as fertilizer and soil
conditioners.
Westwood has not
yet fully completed the testing and
approval
process
for
such uses
because it is
concentrating on obtaining approval for
its facility to operate.
Practical
economic considerations require
that Westwood focus on constructing and
operating the
facility first. However, the fact that the
silicate
may be
landfilled for
a
period
of time
does not change the analysis
that slag fines are not a “discarded
material.”
The fines are
returned to the economic mainstream by using them
to
make a
useful
product -- the metallic nuggets and
briquettes. Westwood believes the silicate
resulting
from
Westwood’s process is also a useful product.
6.
The
fact
that the silicate material is removed from the slag is immaterial
to
the
determination here.
The issue is whether the steelmaking slag fines, when used in
Westwood’s
process, are a
waste. It is illogical to
assert
that
because
silicate results
from
the
processing of the slag fines, the slag fines themselves are “waste.” The focus
of
the
determination is on the slag fines themselves
-- not on the silicate that results
from the
process. The fact
that
silicate is a product of the
processing
cannot
somehow
transform
the slag fines
into
a “waste.”
7.
Further, it is important to note that the
silicate is not a “contaminant”; it
is
part
of the
chemical composition
of
the
fines. Contrary to IEPA’s
claims, Westwood’s
process does
not remove “contaminants”
from the
slag fines. Rather, the process
6
transforms
the
fines
into the metallic
fractions,
shaped
into
nuggets
and briquettes,
and
separates
out the
silicate
material.
The
silicate
is not
a
contaminant;
it
is simply
part of
the
chemical
composition
of the
slag fines.
8.
Perhaps
lost
in this discussion
is
that steel
slag has
been considered
a
useful
product
for
many
years.
The
National
Slag
Association
notes
that roads
made
from
slag were
made
in
England
as early
as 1813.
In the United
States,
slag was used
for track
ballast
for
railroads,
and
for
building
military
roads
in World
War I. (See
http://www.nationalslaq.orq/slaqhistory.htm.)
Steel
slag
is
used in asphalt
aggregate,
as
fill,
as
material
in cement
manufacturing,
as
an agricultural
soil
amendment,
for
road
base,
and
a
myriad
of
other
applications.
(See
generally
http://www.nationalslaq.org/appmatrix.htm.)
Westwood
offers
this information
not
as
dispositive
of
the
issue
of whether
the slag
fines
are
“waste”;
Westwood
believes the
analysis
used by
the AFI
and
Jo’Lyn
decisions
is the applicable
analysis,
and that the
slag
fines used
by
Westwood
are not
“waste” under
that
analysis.
However,
Westwood
believes
it is
important
to recognize
that steel
slag
is itself
a
useful product,
which
has
been
used
for many
applications
for
many
years.
9.
Next,
IEPA
objects
that
Westwood
claimed
trade
secret
protection
for
portions
of two
exhibits
submitted
in support
of
the petition.
However,
IEPA
failed
to
avail
itself
of the
proper
procedure
if it
truly believed
the redacted
portions
of
those two
exhibits
were
essential
to its
recommendation. Westwood
properly
asserted
trade
secret
protection
for
portions
of Exhibits
A
and
C, pursuant
to the
provisions
of
Section
7 and 7.1
of
the
Act,
and
Part 130
of
the Board’s
procedural
rules.
IEPA could
have
7
asked the Board to
make
a determination
8
under Part 130, Subpart B as to whether the
redacted portions of the exhibits are properly protected as trade secrets. The Board
would presumably
then have requested
a
full statement of justification from Westwood,
and proceeded to make a determination under Section 130.208. Instead of making that
request, IEPA now asserts
that
it
cannot
make a
full recommendation without the
redacted information. Westwood should not be “punished” for using the
trade secret
provisions
enacted
by
the legislature
and by
the Board, when IEPA did not follow those
provisions.
10.
Westwood has demonstrated that the slag fines, when used
in
Westwood’s process, are
not
a “waste.” This conclusion is consistent with the holdings
in AFI and
Jo’Lyn, which IEPA cannot successfully distinguish. Westwood emphasizes
that it does
not, in this petition, seek a determination that all steelmaking slag fines
are
not “waste.”
Westwood takes no
position on that broad question. Westwood’s request
for a
determination is limited to slag fines used in Westwood’s
process, which takes
a
material
that might otherwise be discarded and returns it to the economic
mainstream.
Therefore,
under prior Illinois Supreme Court and Board decisions, Westwood
asks the
Board
to determine that the raw material used in its
process is not a “waste.”
Alternatively, the Board
should grant the adjusted standard.
In the
alternative, if the Board finds that the
slag fines used in Westwood’s
process are a
“waste,” Westwood
seeks an adjusted
standard
from
the delineated
provisions of Sections 807.104 and 810.103.
The material submitted in
Westwood’s
8
See, inter alia,
Section
130.201(b), which
allows
the
Board to request
a statement of justification
when the Board
has received
a
request to
disclose the article claimed
as a trade secret.
8
petition
and amended petition
demonstrates
that the Board
should grant the
requested
adjusted standard.
IEPA
objects, raising
more scattered
arguments.
-
-
1.
IEPA
contends that Westwood
has
not conclusively demonstrated
that the
slag
fines
are not hazardous.
Westwood
emphasizes
that IEPA does not
assert that the
fines
are
hazardous,
only that
the test
results submitted
by Westwood are
not
conclusive
of the issue.
Perhaps,
in its efforts to
answer the numerous
specific
questions
asked by the
Board in its
May 21, 2009 order
seeking more
information,
Westwood
was not clear
that steel
slag is excluded,
by federal law,
as a hazardous
waste.
The Bevill
exclusion,
as
it
is known, excludes
“solid waste
from
the
extraction,
béneficiation,
and processing
of ores and
minerals” from consideration
as “hazardous.”
42
U.S.C.
6921 (b)(3)(A)(ii).
This exclusion
is contained
in USEPA’s
regulations
at 40
CFR 261.4(b)(7).
The exclusion
includes
slag from steel
production.
40
CFR
261.4(b)(7)(ii).
Thus,
pursuant
to federal
law, slag
from steel production
is
not
a
hazardous
waste.
2.
IEPA again
raises objections
to the
adjusted
standard
based upon
Westwood’s
redaction, as trade
secrets, of
portions
of
Exhibits A
and C. IEPA claims
that it cannot
make
a determination
on the
economic
considerations
of the adjusted
standard
because
of
the
redactions.
As demonstrated
above,
Westwood
properly
triggered the trade
secret protections
enacted
by the legislature
and the
Board.
IEPA
has failed
to
seek a full determination
of the
claimed
trade
secret. Westwood
has
legitimate
business reasons
for
protecting
the redacted
information.
Westwood
should
not
be
punished
for utilizing
the
trade
secret provisions,
where
IEPA has
not utilized
those same
provisions.
9
3.
IEPA
contends
that
any
adjusted
standard
should
be
subject
to testing
of
loads
of
fines
at some
defined
frequency.
Westwood
does
not
object
to
a provision
that
loads
be
tested
for
metal
content
at a
defined
schedule,
If
the
Board
grants
the
adjusted
standard,
Westwood
suggests that
testing
should
occur
weekly,
and
when
receiving
the
first
load
from
a new
supplier.
4.
IEPA
also
complains
that
Westwood
has
not
adequately
explained
the
economics
of
its process “to
demonstrate the
activity
is not
sham
recycling.”
(Rec.
at
par. 39.)
First,
IEPA
does
not
explain
what
it means
by
“sham
recycling.”
Presuming
that
IEPA
means
some
process
by
which
Westwood
would
pretend
to
make
a product,
it
is
hard
to
see
why
Westwood
would
pay
to obtain
its
raw
material
(the
slag
fines)
and
go
to
the expense
of
building
and
operating
the facility,
without
then
making
the
product
which
results
in
economic
gain
for
Westwood.
Such
a
result
is simply
illogical.
Second,
it
is
unfortunate that
IEPA
did
not
ask
Westwood
for
further
information
or raise
these
concerns
during
the
phone
conversations
between
counsel
for
Westwood
and
IEPA
9
.
While
Westwood
does
bear
the
burden
of
demonstrating
that
it should
receive
an
adjusted
standard,
it is
unfair
for
IEPA
to
expect
Westwood
to
read
IEPA’s
mind.
5.
IEPA
fails
to
understand
why
Westwood
has
sought
an
adjusted
standard
from
the
identified definitions
in Sections
807.104
and
810.103.
The answer
is
simple,
as
explained at
page
6
of
Westwood’s
petition.
An
adjusted
standard
exempting
Westwood
from
the
Section
807.104
definitions
of
“facility,”
“solid
waste,”
“solid
waste
management,”
“waste,”
and
“unit”
will
exempt
Westwood’s
facility
from
the
provisions
of
Part
807,
since
it will
not
handle
“waste”
and
will
not
be a
solid
waste
management
site,
Counsel
for
Westwood
and
IEPA
had
substantive
conversations
about
Westwood’s
petition
on
at
least
two
occasions.
Westwood
was
seeking
IEPA’s
support
for the
petition.
10
Likewise, the requested adjusted standard
from the Section 810.103 definitions
of
“facility,”
“landfill,”
and “solid waste” will render
the
provisions of Parts 811 through
817
inapplicable to Westwood’s facility.
Like the
Jo’Lyn
facility, “substantially
different
factors apply to
[Westwood’s}
operation
than
the factors the Board relied on in adopting
the solid waste
regulations at
Parts 807 and 810 of the Board’s rules.” Jo’Lyn, AS
04-2
atp. 13.
CONCLUSION
Westwood’s process
will take
a
material,
that
might
otherwise
be discarded, and
create a useful
product.
The metallic nuggets and briquettes will
be
sold to
steel
manufacturers for use in making steel in electric arc furnaces, thus conserving
resources
and preventing
the
discarding of the slag fines. As the Board stated
in
Jo’Lyn, finding
that the slag fines are not a waste, as used by Westwood, “serves
the
interests of encouraging recycling and
returning
a
material difficult to
recycle
into
the
economic
mainstream
in an environmentally friendly
way.”
Jo’Lyn,
AS
04-2 at
p.
14.
Westwood’s
petition demonstrates that
the steelmaking slag fines used in
its
process
are
not
a
“waste” and, therefore, not
subject
to
regulation as a “waste.”
Alternatively, Westwood has demonstrated that the Board should grant the requested
adjusted standard from
the delineated
definitions of Parts 807 and 810.
Respectfully submitted,
WESTWOOD LANDS,
INC.
Dated: August
21, 2009
By:,
11
Elizabeth
S.
Harvey
John
P.
Arranz
Swanson,
Martin
&
Bell,
LLP
330
North
Wabash
Avenue
Suite
3300
Chicago,
IL 60611
312.321.9100
312.321.0990
(facsimile)
12