AS993FIN.PDF

ILLINOIS POLLUTION CONTROL BOARD

April 15, 1999

IN THE MATTER OF:

PETITION OF BIG RIVER ZINC

CORPORATION FOR AN ADJUSTED

STANDARD UNDER 35 ILL. ADM. CODE

720.131(c)

)

AS 99-3

(Adjusted Standard - RCRA)

LEE R. CUNNINGHAM AND RICHARD M. SAINES OF GARDNER, CARTON &

DOUGLAS APPEARED ON BEHALF OF PETITIONER; and

CHRISTOPHER P. PERZAN APPEARED ON BEHALF OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD (by K.M. Hennessey):

Petitioner Big River Zinc Corporation (BRZ) operates an electrolytic zinc refinery in

Sauget, St. Clair County, Illinois. BRZ uses various zinc-containing materials as feedstock for

its refinery. One of the zinc-containing materials that BRZ would like to use is recovered

from dust emitted from electric arc furnaces used to produce steel. This secondary zinc oxide

material would ordinarily be considered a “solid waste” and a “hazardous waste” under the

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901

et seq

., and

corresponding Illinois hazardous waste laws and regulations. BRZ would like to use this

secondary zinc oxide material without becoming subject to Illinois’ hazardous waste

requirements.

To that end, BRZ has filed a petition for an adjusted standard under 35 Ill. Adm. Code

720.131(c). Section 720.131(c) allows the Board to determine that certain materials are not

solid wastes, and therefore not hazardous wastes, if they meet certain criteria. BRZ asserts

that zinc oxide material recovered from electric arc furnace dust (EAF dust) by a high

temperature metals recovery process meets these criteria. BRZ also proposes several

conditions on the adjusted standard. The Illinois Environmental Protection Agency (IEPA)

recommends that the Board grant the adjusted standard, subject to certain conditions.

The Board finds that BRZ has established that zinc oxide material recovered from EAF

dust by a high temperature metals recovery process is not a solid waste. The Board therefore

grants BRZ’s petition for an adjusted standard, subject to the conditions set forth in the order

that follows this opinion.

PROCEDURAL HISTORY

On September 24, 1998, BRZ filed a petition for an adjusted standard, subject to

conditions. On October 15, 1998, the Board accepted this matter for hearing and on

October 16, 1998, IEPA filed a response to the petition. In that response, IEPA recommended

that the Board grant BRZ’s request for an adjusted standard with conditions, subject to certain

additional conditions. On October 27, 1998, BRZ filed a reply in which it proposed new and

modified conditions on the adjusted standard, including the conditions that IEPA requested.

Hearing Officer John Knittle held a hearing on the adjusted standard petition on

December 17, 1998. BRZ presented one witness, whom the hearing officer found to be

credible. BRZ also introduced four exhibits, each of which the hearing officer admitted.

hearing, BRZ proposed to amend one of the conditions it had proposed for the adjusted

standard. Tr. at 5-6; Exh. 4. Counsel for IEPA stated at hearing that IEPA agreed to all of

the conditions that BRZ had proposed both before and at hearing. Tr. at 24. IEPA offered no

testimony or exhibits. The parties chose not to file posthearing briefs.

LEGAL FRAMEWORK

The status of materials as “solid wastes” is significant because under the laws and

regulations that Congress and the United States Environmental Protection Agency (USEPA)

have established, only those materials that are “solid wastes” can be regulated as “hazardous

wastes” under RCRA and corresponding Illinois hazardous waste laws and regulations.

Accordingly, materials that are not solid wastes are not subject to Illinois’ hazardous waste

regulations, which impose various requirements on persons who generate, treat, store, dispose,

recycle, or transport hazardous waste. See 35 Ill. Adm. Code 722-726, 728.

Generally, a solid waste is any discarded material. See 35 Ill. Adm. Code 721.102. A

solid waste is a hazardous waste if it exhibits a “characteristic” of hazardous waste (

i.e.

, it is

toxic, corrosive, ignitable, or reactive) or if it is “listed” as hazardous waste (

e.g.

, it comes

from a specific type of process, such as electroplating). See 35 Ill. Adm. Code 721.103, 721,

Subparts C and D.

BRZ would like to reclaim zinc from zinc oxide material that has been recovered from

EAF dust without becoming subject to Illinois’ hazardous waste regulations. Exh. 3 at 2, 21.

BRZ asks the Board to determine that zinc oxide material recovered from EAF dust with a

high temperature metals recovery process, which the Board will refer to as “EAF zinc oxide,”

is not a solid waste. BRZ seeks this determination under 35 Ill. Adm. Code 720.131(c). That

provision establishes standards and criteria for the Board to use in determining whether certain

materials are not solid wastes. See 35 Ill. Adm. Code 720.130(c). Section 720.131(c) reads

as follows:

BRZ’s petition, which was entered into evidence at hearing as an exhibit, is cited as “Exh. 3

at _.” The parties treat BRZ’s reply as part of the petition and the Board will consider it as if

it was entered into evidence at hearing with the petition. However, for clarity, the Board cites

BRZ’s reply as “Reply at _.” IEPA’s response is cited as “Resp. at _.”

The transcript of the hearing is cited as “Tr. at _.” Hearing exhibits are cited as “Exh. _.”

The Board will determine that those materials that have been reclaimed but must

be reclaimed further before recovery is completed are not solid wastes if, after

initial reclamation, the resulting material is commodity-like (even though it is

not yet a commercial product, and has to be reclaimed further). This

determination will be based on the following criteria:

1) The degree of processing the material has undergone and the degree of

further processing that is required;

2) The value of the material after it has been reclaimed;

3) The degree to which the reclaimed material is like an analogous raw

material;

4) The extent to which an end market for the reclaimed material is

guaranteed;

5) The extent to which the reclaimed material is handled to minimize loss;

and

6) Other relevant factors. 35 Ill. Adm. Code 720.131(c).

FINDINGS OF FACT

In this section of the opinion, the Board sets forth its findings of fact regarding (1)

zinc, (2) BRZ’s current operations, (3) EAF dust, (4) EAF zinc oxide, and (5) BRZ’s

proposed operations.

Zinc

In 1997, the total world production and consumption of zinc was approximately 8.5

million tons. Zinc can be used to galvanize products; to produce brass; to create alloys used to

produce such items as door handles and carburetor parts; to create chemicals such as zinc

powder for alkaline batteries and zinc oxide; to coat steel; and for various other uses. Exh. 3

at 3, Att. B at 5. The average annual growth in consumption of zinc in the western world was

2.4% from 1988 to 1997. Exh. 3, Att. B at 1. The price of zinc is established by supply and

demand on the London Metals Exchange (LME). Exh. 3 at 3.

BRZ’s Current Operations

BRZ’s Products

BRZ operates an electrolytic zinc refinery in Sauget, St. Clair County, Illinois. Exh. 3

at 1, 7. BRZ currently produces approximately 105,000 tons of zinc per year. Exh. 3, Att. J

at 2.

parts, and produce zinc oxide (

e.g.

Exh. 3, Att. J at 2. BRZ

pound logs for large galvanizing lines. BRZ produces special high grade quality zinc

(99.995% zinc), which is the most widely recognized standard for zinc. Depending on

customer specifications, BRZ also debases its special high grade zinc to produce alloys that

Exh. 3 at 19. BRZ has long-term end

markets for all of its products.

Att. N.

BRZ’s Process

BRZ recovers zinc from two types of materials, the first of which is zinc sulfide

concentrates that are mined. BRZ also recovers zinc from secondary zinc oxide material.

Secondary zinc oxide material is a by-product of other industries that use zinc, including steel

mills, brass mills, brass and bronze ingot factories, and galvanizers. The mined zinc sulfide

concentrates arrive as wet filter cake; the secondary zinc oxide material arrives as wet filter

cake or as dry material in “supersacks.” Exh. 3 at 2, 4, 10-11, 14, 17, 20, Att. J at 2.

In the first step of BRZ’s process, BRZ may use an acid solution to remove magnesium

from the zinc sulfide concentrates to prepare them for further processing. Exh. 3 at 10-11.

Secondary zinc oxide material does not require this initial step. Exh. 3 at 10-11, 17-18, Att.

H, J at 2-3.

BRZ then processes zinc sulfide concentrates and secondary zinc oxide material in a

fluid bed roaster. The roasting step removes sulfur from the feed material. Exh. 3 at 12, 19,

Att. J at 2. BRZ then leaches the roasted material to separate zinc and various other metals.

From the slurry that results, BRZ filters the solids, and puts the remaining solution through

four purification stages. The purification process yields a purified zinc sulfate solution from

which zinc is recovered through an electrolytic process. The electrolytic process yields zinc

cathodes that are of special high grade quality (99.995% pure zinc). BRZ then melts the

cathodes into one of six shapes for delivery to customers. Exh. 3 at 12-13, 19.

BRZ’s refining process produces a number of by-products, including sulfuric acid,

lead-silver concentrate, copper cement, copper-cobalt concentrate, cadmium oxide, and zinc

sulfate monohydrate. BRZ has long-term end markets for these by-products. Exh. 3 at 12-13,

19-20.

In this opinion, when the Board refers to a percentage of a constituent in a material, it does

so by weight.

EAF Dust

EAF dust is a source of secondary zinc oxide material. EAF dust is generated in

electric arc furnaces, which produce steel by heating steel scrap. These furnaces emit gases

that contain EAF dust. Air pollution control equipment in these furnaces removes EAF dust

from the gases. These furnaces generated approximately 900,000 tons of EAF dust in the

United States in 1997. Exh. 3 at 5, 13-14.

EAF dust is composed of approximately 20% to 30% iron and 15% to 30% zinc. It

also includes other constituents such as lead, cadmium, chloride, fluoride, aluminum, calcium,

potassium, magnesium, manganese, sodium, and silica. Because of its high iron content and

other impurities, zinc cannot be recovered directly from EAF dust in most, if not all, zinc

smelting and refining operations. Exh. 3 at 5, 13-14.

In 1996, nearly 40% of the EAF dust generated in the United States was disposed of in

landfills. Exh. 3 at 6. It costs approximately $80 per ton to dispose of EAF dust. Exh. 3 at

16.

EAF Zinc Oxide

High Temperature Metals Recovery

While zinc cannot be recovered directly from EAF dust in most zinc smelters and

refineries, zinc oxide material recovered from EAF dust can be processed in zinc smelters and

refineries. Zinc oxide material can be recovered from EAF dust when the dust is put through

a high temperature metals recovery (HTMR) process. HTMR units include rotary kilns, rotary

hearth furnaces, plasma furnaces, and electric furnaces. Exh. 3 at 6-7, 10, Att. F, H.

HTMR processing increases the levels of zinc, lead, and cadmium in EAF dust. These

changes are desirable in the zinc refining process. HTMR processing also lowers the levels of

constituents that are considered contaminants in the zinc refining process (

e.g.

, iron, calcium,

magnesium, alumina), except for sodium, chloride, fluoride, and potassium. Exh. 3 at 10, 18,

Att. H.

In 1994, approximately 1.2 million tons of EAF dust per year was processed

worldwide, mostly to produce zinc oxide material. Exh. 3 at 18, Att. L. EAF dust processing

is done in a variety of HTMR units and the resulting zinc oxide material is sold primarily to

produce zinc, but also to produce zinc chemicals. Exh. 3 at 18, Att. L. Several facilities in

the United States produce or are capable of producing EAF zinc oxide. Exh. 3 at 6, 18, Att.

L, M. Markets for EAF zinc oxide exist in North America, Asia, and Europe. Exh. 3 at 19.

Once EAF dust has been through the HTMR process, the value of the resulting zinc oxide

material approaches the value of mined zinc sulfide concentrates (currently $250 to $300 per

ton). Exh. 3 at 8, 16-17, 21.

BRZ would like to purchase EAF zinc oxide. Tr. at 13; Exh. 3 at 1-2, 6. BRZ intends

to use the material as feedstock for its zinc refinery. Exh. 3 at 1, 8. EAF zinc oxide can

substitute for and supplement mined zinc sulfide concentrates. Exh. 3 at 2, 14. After washing

EAF zinc oxide (described below), BRZ plans to use the material in the same manner it uses

the mined zinc sulfate concentrates. The products and by-products from EAF zinc oxide

would be essentially indistinguishable from those of the mined materials. Exh. 3 at 16, 19,

21.

Not all zinc oxide material recovered from the HTMR processing of EAF dust would

be suitable feed for BRZ’s refinery. Exh 3. at 7. To be economical for BRZ, EAF zinc oxide

must meet the following specifications (on average):

>50% zinc;

<20% lead;

<5% iron;

<4% total gangue materials (silica plus calcium plus magnesium); and

<2% chloride or capable of being water washed to achieve <2% chloride.

Exh. 3 at 7.

For BRZ to be able to wash EAF zinc oxide to <2% chloride, the feed should arrive at BRZ’s

facility with <13% chloride. Reply at 5-6, Att. O. In addition, BRZ could accept EAF zinc

oxide produced during the three-month start-up period of an HTMR unit with up to 7% iron.

Tr. at 5-6; Exh. 4.

AmeriSteel, Inc.’s HTMR Process

One of the companies that processes EAF dust with an HTMR unit is AmeriSteel, Inc.

(AmeriSteel). AmeriSteel is a steel manufacturer located in Jackson, Tennessee. AmeriSteel’s

HTMR unit is a rotary hearth furnace. Exh. 3 at 8-9.

To process EAF dust, AmeriSteel first mixes the dust with a source of carbon

(commercial grade coal or coke purchased on the open market) to form briquettes. The carbon

acts as a reducing agent. AmeriSteel places the briquettes in the rotary hearth furnace to

recover both zinc oxide material and an iron material. Materials that volatilize at lower

temperatures vaporize and leave the furnace in a gas stream. These materials then oxidize,

form a solid, and are collected in an air pollution control device called a baghouse. This

material collected in the baghouse is EAF zinc oxide. Tr. at 18-19; Exh. 3 at 9-10; Reply at

3, Att. P. Once AmeriSteel achieves full capacity, it is expected to produce approximately

9,600 tons per year of EAF zinc oxide from the 24,000 tons of EAF dust that Ameristeel

generates annually. Exh. 3 at 10.

AmeriSteel’s EAF Zinc Oxide

AmeriSteel’s HTMR process increases the zinc content of EAF dust from 20-25% to

59.5%, increases the lead content from 3% to 7.5%, increases the cadmium content from

0.05% to 0.1%, and decreases the iron content from 19-24% to 0.1%. AmeriSteel’s HTMR

process lowers the levels of constituents that are considered contaminants in BRZ’s refining

process, except for sodium, chloride, fluoride, and potassium. Exh. 3 at 10, 18, Att. H, K.

BRZ has determined that, except for the chloride level of the material, AmeriSteel’s

EAF zinc oxide is an ideal feed for its zinc refinery. Exh. 3 at 8. Ameristeel’s EAF zinc

oxide is chemically similar to mined zinc oxide and zinc sulfide concentrates:

Constituent

Mined Concentrates

AmeriSteel’s EAF

Zinc Oxide

Zinc Sulfide

% zinc

59.1

59.5

% lead

4.9

1.2

7.5

% cadmium

0.38

0.5

0.1

% iron

2.5

1.5

0.1

% copper

0.02

0.3

0.1

% sulfur

% arsenic

<0.02

<0.01

% calcium

2.4

0.05

% silica

14.8

0.8

0.02

% magnesium

0.6

0.4

0.01

% alumina

2.7

0.1

0.02

% sodium

N/A

<0.02

% chloride

0.07

<0.1

% fluoride

0.03

0.05

0.15

Exh. 3 at 14, 17, Att. D, H, K. With the exception of chloride and fluoride, AmeriSteel’s

EAF zinc oxide also meets typical zinc refiner specifications for zinc sulfide concentrate blends

and falls within the range of secondary feed specifications that zinc refiners have established.

Exh. 3, Att. F, H, K.

EAF zinc oxide produced by AmeriSteel and others has levels of zinc comparable to

that of mined concentrates. Exh. 3 at 17, Att. D, H, K. If used in BRZ’s refining process,

EAF zinc oxide would have chemical advantages and disadvantages compared to mined

concentrates. The primary advantages of EAF zinc oxide are that it is higher in lead than

mined concentrates and lower in sulfur than mined zinc sulfide concentrates. AmeriSteel’s

EAF zinc oxide has the additional advantage of being lower in iron than mined concentrates.

Exh. 3 at 14, 17-18, Att. D, H, J at 3, K.

EAF zinc oxide has two primary disadvantages when compared to mined concentrates.

First, EAF zinc oxide has higher levels of sodium, chloride, fluoride, and potassium, which

are present as inorganic salts. While EAF zinc oxide can be introduced directly to BRZ’s

roaster, inorganic salts in the material could corrode BRZ’s refining equipment if their levels

are not first reduced. However, as discussed below, BRZ plans to wash EAF zinc oxide to

reduce its levels of inorganic salts. Tr. at 13-17; Exh. 3 at 11, 14, 17-18, Att. D, H, J at 3,

The second primary disadvantage of EAF zinc oxide is that it may be in the form of

dry dust rather than wet filter cake. Exh. 3 at 14. The dry dust is more difficult to handle.

Exh. 3 at 14, Att. J at 3. As discussed below, however, BRZ’s washing process will turn this

dry dust into wet filter cake that BRZ can then put through its refinery equipment.

BRZ’s Proposed Operations

EAF zinc oxide is expected to arrive at BRZ’s Sauget facility in the form of dry dust.

BRZ plans to keep the dry EAF zinc oxide totally enclosed from unloading until washing.

BRZ has designed a material handling/wash system to handle that material. Exh. 3 at 14, 20,

Att. J at 3-4. On September 22, 1998, IEPA granted BRZ an air pollution control permit to

construct the system. The construction permit limits emissions of particulate matter from the

handling/wash facility to 1.68 tons per year. Exh. 2; Exh. 3, Att. J.

Dry secondary zinc oxide material is expected to arrive at BRZ’s Sauget facility in bulk

or in supersacks. Approximately 90% of this material is expected to arrive by rail. BRZ

plans to unload railcars of the bulk material through ventilated air slides to silos equipped with

High-Efficiency Particulate Air (HEPA) filters. Ultimately, BRZ plans to add four silos, each

with a capacity of 1.5 railcars. BRZ proposes to locate the silos on concrete or asphalt pads

that BRZ could wash into a sump. BRZ plans to pump the sump contents into the washing

process. Exh. 3 at 15, Att. J at 4.

Supersacks of the material are expected to arrive by boxcar or truck. BRZ plans to

leave supersacks in boxcars for intermediate storage. The boxcars would be unloaded at a

covered loading dock that is to be attached to the washing plant. Supersacks that arrive by

truck would be stored inside the washing plant. BRZ would be able to store approximately

150 tons of that material inside the washing plant. Exh. 3 at 15, Att. J at 4.

BRZ plans to use a truck to move the supersacks to a supersack discharge station to

empty them. BRZ proposes to maintain the discharge station under negative pressure to avoid

fugitive emissions. BRZ would vent the discharge station through a baghouse to collect any

secondary zinc oxide material. Exh. 3 at 15, Att. J at 5.

BRZ proposes to convey the secondary zinc oxide material (from the silos and the

supersack discharge station) in an enclosed, ventilated conveyor (or by pneumatic conveyor) to

a tank where BRZ would mix the material with water. BRZ proposes to pump the resulting

slurry into a washing tank. BRZ plans to add soda ash to the washing tank to raise the pH to a

level that would not dissolve zinc and other heavy metals but would dissolve the inorganic salts

that could corrode BRZ’s refining equipment. Exh. 3 at 11, 15-16, Att. J at 5.

After washing, BRZ proposes to create wet filter cake by removing water from the

slurry with a pressure filter. BRZ plans to transport the filter cake by enclosed conveyor belts

to the concentrate storage building. In the concentrate storage building, BRZ would blend the

washed secondary zinc oxide material with zinc sulfide concentrates to create feed for the

roaster, after which the material would go through the refining process outlined on page four

of this opinion. Exh. 3 at 15-16, Att. J at 5.

Some producers of EAF zinc oxide may wash the material before delivering it to BRZ.

In that case, the material would arrive at BRZ’s Sauget facility as wet filter cake, which BRZ

can handle in the same manner that it currently handles filter cake feed material. Tr. at 14-15;

Exh. 3 at 14, 20. Typically, the largest suppliers of secondary zinc oxide material either wash

the material at their facilities to produce wet filter cake or ship the material as dry dust in

pneumatic trailers. Smaller suppliers typically package the secondary zinc oxide material in

supersacks. Exh. 3, Att. J at 4.

BRZ’s Proposed Contract With AmeriSteel

BRZ and AmeriSteel have reached agreement on contract terms under which BRZ plans

to buy AmeriSteel’s full production of EAF zinc oxide. Tr. at 17-18; Exh. 3 at 8, Att. G at 1.

AmeriSteel’s full monthly production is estimated to be approximately 800 tons. Exh. 3, Att.

G. Under the contract, the price of EAF zinc oxide is based on a percentage of its zinc

content and the LME price for zinc. Exh. 3, Att. G at 2. Because EAF zinc oxide can

substitute for and supplement BRZ’s mined zinc sulfide concentrates, BRZ would pay

AmeriSteel a high percentage of what it would normally pay for mined zinc sulfide

concentrates. Exh. 3 at 8, 17. BRZ is willing to pay a price for EAF zinc oxide that far

exceeds its cost of freight. Tr. at 13; Exh. 3 at 17.

The AmeriSteel contract would be effective upon execution and continue until

December 31 of the year following the year in which BRZ begins commercial operation of its

washing plant. Thereafter, the contract would continue from year to year “with annual

negotiation of the terms to reflect current market conditions.” Exh. 3, Att. G at 1-2. As

proposed, either party could cancel the contract by giving the other party 180 days notice of

cancellation. Exh 3, Att. G at 2. AmeriSteel has indicated that it will not execute the contract

“until all regulatory issues have been resolved, including this adjusted standard proceeding.”

Tr. at 17-18; Exh. 3 at 9.

DISCUSSION

In this section, the Board first discusses whether EAF zinc oxide is a solid waste. The

Board then discusses whether the provision under which BRZ seeks this determination is

available in this case. Next, the Board evaluates each of the factors upon which this

determination is based. Lastly, the Board discusses the conditions that apply to this

determination.

Status of EAF Zinc Oxide

Section 720.131(c) allows the Board to determine that certain materials that would

otherwise be solid wastes are not solid wastes if certain conditions are met. Therefore, the

Board initially must determine that EAF zinc oxide is a solid waste; if it is not, BRZ has no

need for an adjusted standard.

A “solid waste” is any discarded material not otherwise excluded in the regulations.

See 35 Ill. Adm. Code 721.102(a)(1). One of the several ways that a material may be

considered “discarded” is by being “recycled” in a manner specified in Section 721.102(c) of

the regulations. See 35 Ill. Adm. Code 721.102(a)(2). Section 721.102(c)(3) specifies, in

part, that if a “listed sludge” is recycled by being “reclaimed,” it is a solid waste. See 35 Ill.

Adm. Code 721.102(c)(3) and 721.Appendix Z.

The Board finds that EAF zinc oxide fits within this category. First, EAF zinc oxide

is considered a “listed sludge.” A “sludge” includes a “solid . . . waste generated from [an]

. . . air pollution control facility . . . .” 35 Ill. Adm. Code 721.101(c)(2); 35 Ill. Adm.

Code 720.110. EAF dust, from which EAF zinc oxide is recovered, is generated from an air

pollution control facility and is therefore a sludge. Furthermore, EAF dust is “listed”

because it is listed as a hazardous waste from a specific source under 35 Ill. Adm. Code

721.132 (listing emission control dust/sludge from the primary production of steel in electric

furnaces as hazardous waste K061).

While this listing applies to EAF dust rather than EAF zinc oxide, Sections

721.103(c)(2)(A) and (d)(2) further provide that a material derived from the treatment of a

listed hazardous waste is itself the listed hazardous waste. See 35 Ill. Adm. Code

721.103(c)(2)(A) and (d)(2). USEPA, which promulgated the federal regulations upon which

these regulations are based, explains that “all of the residues from treating the original listed

wastes are likewise considered to be the listed waste . . . .” 54 Fed. Reg. 1056, 1063

(Jan. 11, 1989). Therefore, EAF zinc oxide is also considered a listed sludge.

Second, the Board finds that EAF dust and the resulting EAF zinc oxide are being

recycled by reclamation. A material is “reclaimed” if it is:

For a detailed discussion of how materials become solid wastes, please refer to Petition of

Chemetco, Inc. for Adjusted Standard From 35 Ill. Adm. Code 720.131(a) and (c) (March 19,

1998), AS 97-2, slip op. at 11-12.

Compare Petition of Recycle Technologies, Inc. for an Adjusted Standard Under 35 Ill.

Adm. Code 720.131(c) (September 3, 1998), AS 97-9, slip op. at 7-8 (if used antifreeze

(spent material that is not a listed hazardous waste) is a characteristic hazardous waste, the

initially but yet to be completely reclaimed material derived from that used antifreeze is a

hazardous waste only if it exhibits a characteristic of hazardous waste).

processed to recover a usable product, or if it is regenerated. Examples are

recovery of lead values from spent batteries and regeneration of spent solvents.

35 Ill. Adm. Code 721.101(c)(4).

When USEPA promulgated the federal regulation upon which this regulation is based, it

explained that materials are reclaimed if “material values . . . are recovered as an end-product

of a process (as in metal recovery from secondary materials)” or if they are “processed to

remove contaminants in a way that restores them to their usable original condition.” 50 Fed.

Reg. 614, 633 (Jan. 4, 1985). The Board finds that EAF dust that is processed by HTMR into

zinc oxide material is being “reclaimed.” The Board also finds that EAF zinc oxide that is

washed to remove contaminants (inorganic salts) is being “reclaimed.” See 35 Ill. Adm. Code

721.101(c)(4). Because EAF zinc oxide is a listed sludge that is recycled by being reclaimed,

it is a solid waste.

Availability of Section 720.131(c)

Generally, a waste being reclaimed remains a waste until reclamation is completed.

See 50 Fed. Reg. 614, 620, 633-634, 655 (Jan. 4, 1985). Section 720.131(c) provides an

exception to this principle for material that is initially reclaimed, but that requires further

reclaiming before recovery is completed.

In discussing the federal counterpart to Section 720.131(c), USEPA explains that the

provision is designed to address those situations in which “the initial reclamation step is so

substantial that the resulting material is more commodity-like than waste-like even though no

end-product has been recovered.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985).

The Board finds that EAF dust that has been processed in an HTMR unit has been

initially but not fully reclaimed. HTMR processing increases the eventual recovery of zinc,

lead, and cadmium values from EAF dust. HTMR processing also decreases the levels of

materials that are considered contaminants in BRZ’s refining process, such as iron, calcium,

magnesium, and alumina. However, EAF zinc oxide requires further processing to recover

end products. First, BRZ must wash the EAF zinc oxide to remove inorganic salts before it

can be roasted in BRZ’s roaster. BRZ then must put the washed material through its refining

process, during which BRZ would roast, leach, purify, and further recover the material. The

refining process recovers various metals, including a special high grade quality zinc.

The Board finds that Section 720.131(c) is available in this case because once EAF dust

has been processed in an HTMR unit to create EAF zinc oxide, it has been initially but not

completely reclaimed.

Section 720.131(c) Factors

The Board must determine whether EAF zinc oxide is commodity-like based on the

Section 720.131(c) factors set forth on page three of this opinion. The Board finds that EAF

zinc oxide is commodity-like based on these factors. The Board addresses these factors in

turn.

The Degree of Processing the Material has Undergone and the Degree of Further Processing

That is Required

When explaining the federal counterpart to Section 720.131(c), USEPA stated, “the

more substantial the initial processing, the more likely the resulting material is to be

commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). Here, the initial processing is

HTMR. HTMR is a physical and chemical process that is performed in certain equipment,

such as a rotary kiln, rotary hearth furnace, plasma furnace, or electric furnace.

HTMR processing of EAF dust can more than double the levels of zinc in EAF dust,

and it can substantially increase its levels of lead and cadmium. The increased concentrations

of these metals are desirable for BRZ’s refining process. HTMR processing also reduces the

levels of numerous undesirable constituents in EAF dust. Without HTMR processing, EAF

dust is not suitable to directly produce zinc in most, if not all, zinc smelting and refining

operations. HTMR processing increases the value of EAF dust from a negative $80 per ton

(its cost of disposal) to a value that approaches the value of mined zinc sulfide concentrates

(currently $250 to $300 per ton).

After undergoing HTMR processing, EAF dust can be refined directly. However, BRZ

proposes to wash EAF zinc oxide to reduce the inorganic salts that could corrode BRZ’s

refining equipment. After washing the material, BRZ plans to roast, leach, purify, and further

process the material. This refining process recovers various metals, including a special high

grade quality zinc.

BRZ and IEPA maintain that EAF zinc oxide will be fully reclaimed after the wash,

i.e.

, that the wash alone constitutes all of the “further processing that is required.” BRZ and

IEPA view the washed EAF zinc oxide as a product, not a waste, and thus do not view the

subsequent refining as relevant to this factor. Exh. 3 at 13-16; Resp. at 3-4. In support of its

position, BRZ introduced a letter from the State of Tennessee Department of Environment and

Conservation that indicates that secondary zinc oxide material recovered by HTMR processing

is fully reclaimed without any washing. See Exh. 3, Att. A. The Board notes, however, that

USEPA guidance indicates that putting secondary zinc oxide material derived from K061

through an electrolytic zinc refining process constitutes further reclamation under RCRA. See

RCRA Permit Policy Compendium, 9444.1994 (09) (December 19, 1994 letter to Paul R.

DiBella from David Bussard, Director, Characterization and Assessment Division, Office of

Solid Waste and Emergency Response, USEPA). This USEPA guidance suggests that the

subsequent refining is relevant to this factor.

The Board finds that even if the subsequent refining is relevant, the HTMR processing

is substantial, both in terms of the process itself and its effect on EAF dust. The Board

therefore finds that this factor supports BRZ’s claim that EAF zinc oxide is commodity-like.

The Value of the Material After It Has Been Reclaimed

USEPA states that “the more valuable a material is after initial processing, the more

likely it is to be commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). As noted above,

once EAF dust has been through the HTMR process, the value of the resulting secondary zinc

oxide material approaches the value of mined zinc sulfide concentrates. BRZ and AmeriSteel

have reached agreement on contract terms and the price of EAF zinc oxide is to be based on a

certain percentage of the zinc content of the material and the LME price for zinc. BRZ would

pay AmeriSteel a high percentage of what BRZ would normally pay for mined zinc sulfide

concentrates. BRZ is prepared to pay a price for EAF zinc oxide that far exceeds its cost of

freight.

The Board finds that EAF zinc oxide has significant value.

The Degree To Which the Reclaimed Material is Like an Analogous Raw Material

According to USEPA, “[i]f the initially-reclaimed material can substitute for a virgin

material, for instance as a feedstock to a primary process, it is more likely to be commodity-

like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). EAF zinc oxide can substitute for zinc sulfide

concentrates from mines. While not identical, the two materials are chemically similar. Both

materials typically would require some form of contaminant removal before BRZ would

introduce them to its roaster (

i.e.

, BRZ processes mined concentrates with an acid solution to

remove magnesium; BRZ proposes to wash EAF zinc oxide with a mixture of water and soda

ash to reduce levels of inorganic salts). After the wash, BRZ plans to use EAF zinc oxide

filter cake in the same manner it uses the filter cake of mined concentrates. The products and

by-products from EAF zinc oxide would be nearly identical to those of the mined materials.

Aside from its chloride and fluoride levels, AmeriSteel’s EAF zinc oxide meets the

specifications of a typical zinc refiner for zinc sulfide concentrate blends.

The Board finds that EAF zinc oxide is very similar to mined zinc sulfide concentrates

and can be substituted for the mined concentrates.

The Extent To Which an End Market for the Reclaimed Material is Guaranteed

In discussing this factor, USEPA states:

If the [petitioner] can show that there is an existing and guaranteed end market

for the initially-reclaimed material (for instance, value, traditional usage or

contractual arrangements), the material is more likely to be commodity-like. 50

Fed. Reg. 614, 655 (Jan. 4, 1985).

In this case, the evidence established that EAF zinc oxide is sold primarily to produce

zinc, but also to produce zinc chemicals. Several facilities in the United States produce or are

capable of producing EAF zinc oxide. There are markets for EAF zinc oxide in North

America, Asia, and Europe.

BRZ’s contract with AmeriSteel would provide another end market for the EAF zinc

oxide that AmeriSteel produces. AmeriSteel’s EAF zinc oxide meets specifications necessary

for BRZ to economically process the material. With the exception of chloride and fluoride,

AmeriSteel’s EAF zinc oxide also meets typical zinc refiner specifications for zinc sulfide

concentrate blends and falls within the range of secondary feed specifications that zinc refiners

have established. BRZ also established that there are end markets for its products and by-

products. These factors corroborate that a market for feed material exists.

The Board finds that there is an end market for EAF zinc oxide.

The Extent To Which the Reclaimed Material is Handled to Minimize Loss

USEPA states that the “more carefully a material is handled, the more it is commodity-

like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). Typically, the largest suppliers of secondary

zinc oxide material either wash it themselves and deliver it as wet filter cake (which BRZ can

handle as it currently handles filter cake feed material) or ship the material as dry dust in

pneumatic railcars. Smaller suppliers typically package the secondary zinc oxide material in

supersacks.

BRZ proposes to handle dry secondary zinc oxide material, which is expected to arrive

in bulk or in supersacks, in a totally enclosed facility. Railcars of the bulk material are to be

unloaded through ventilated air slides to silos with HEPA filters. The silos are to be on

concrete or asphalt pads with sumps to transfer any spillage to the washing process.

Supersacks of the material are to be stored in enclosed areas and emptied under negative

pressure in a discharge station with air filters. IEPA issued an air pollution control

construction permit that limits emissions of particulate matter from the handling/wash facility

to 1.68 tons per year.

The Board also notes that producers of EAF zinc oxide and BRZ have financial

incentives not to lose the material: if producers lose the material, they have less to sell to

BRZ; if BRZ loses the material, it has less feedstock for its refinery.

The Board finds that EAF zinc oxide will be handled to minimize loss.

Other Relevant Factors

The Board will not consider any additional factors based on this record. When

discussing Section 720.131(c)(6), BRZ states that the grant of an adjusted standard will

encourage the recycling of EAF dust and decrease the amount of the material that is landfilled.

Exh. 3 at 21; Reply at 3. While the Board encourages recycling, the Board may consider

“other relevant factors” only to the extent that they are relevant to whether EAF zinc oxide is

commodity-like. BRZ has not established that an increase in EAF dust recycling is relevant to

that question.

Board Determination

The Board finds that BRZ has established that EAF zinc oxide is commodity-like.

Accordingly, the Board determines that EAF zinc oxide is not a solid waste.

Conditions on the Adjusted Standard

The Board will first set forth the conditions that BRZ proposes on the adjusted

standard, and then set forth the Board’s findings on those conditions.

BRZ’s Proposed Conditions

BRZ proposes the following conditions on the adjusted standard, which it amended to

reflect the conditions that IEPA requested:

The material accepted shall consist of zinc oxide reclaimed from EAF

dust (K061) using an HTMR process;

The material accepted shall meet the following specifications as monthly

averages[:]

(1)

>50% zinc;

(2)

<20% lead;

(3)

<5% iron;

(4) <4% total gangue materials (silica plus calcium plus

magnesium); and

(5) <13% chloride; provided, however, that the material accepted

may contain up to 7% iron for a period of up to three months

during the start-up of the process producing the materials;

BRZ shall maintain records which document the sources of the reclaimed

zinc oxide and which are adequate to demonstrate that the materials

accepted meet the specifications set forth in Condition b, above; and

BRZ shall maintain the records required under Condition c, above, for a

period of three years and shall make such records available for

inspection and copying at any reasonable time during normal business

hours upon request by Illinois EPA.

Tr. at 5-6; Exh. 4; Reply at 6.

BRZ proposes to “take representative samples from the shipments of reclaimed zinc

oxide . . . and composite them on a monthly basis.” Reply at 5. BRZ would analyze the

monthly composites for zinc, lead, iron, chloride, silica, calcium, and magnesium to

determine compliance with its proposed specifications.

. BRZ maintains that it should be

able to “accept the infrequent individual shipment which exceeds these specifications if the

normal production of the supplier meets specifications and those shipments can be blended

with other shipments such that the blended materials meet the specifications.”

. at 4. IEPA

has agreed to all of these proposed conditions. Tr. at 24.

Board Findings

BRZ’s proposed conditions (b) and (c), and the manner in which BRZ proposes to

comply with these conditions, raise a number of questions. Initially, it is unclear how BRZ

would composite samples. For example, it is unclear whether a composite of samples from

each shipment would be tested individually or whether samples from multiple shipments would

be composited for testing. It is also unclear whether samples of shipments from different

producers would be composited or whether separate composites would be tested for each

producer.

In addition, it does not appear that BRZ would keep shipments of EAF zinc oxide

segregated and unprocessed while it awaits test results. Accordingly, if a composite sample

exceeds the proposed specifications, it is unclear how BRZ could identify the shipment in

order to blend it “such that the blended materials meet the specifications.” In addition, by the

time BRZ receives test results on a composite sample, BRZ may already have blended the

material with other feed material and, in fact, may already have refined the material.

It is also unclear how BRZ ever could violate these conditions of the adjusted standard

as BRZ interprets them. If a test shows that material greatly exceeds the specifications, BRZ

could comply by simply mixing portions of that material in piecemeal fashion with compliant

materials until all of the noncompliant material is used. It is also unclear whether BRZ would

have to test the blend to confirm compliance.

These proposed conditions also raise environmental and regulatory concerns. First, if

an adjusted standard is granted, RCRA regulations would not apply to the materials during

their shipment to BRZ, and during their storage and processing at BRZ. If BRZ could blend

noncompliant material (

e.g.

, material that exceeds the lead limit) until the blend met the

specifications, transporters would be able to transport in Illinois (and BRZ would be able to

handle and store) material that exceeds the specifications without being subject to Illinois’

hazardous waste regulations. Likewise, an Illinois producer of EAF zinc oxide with material

intended to be shipped to BRZ that exceeds the specifications could handle and store that

material without being subject to Illinois’ hazardous waste regulations.

Second, the specifications on the contents of EAF zinc oxide relate directly to BRZ’s

ability to economically use the material. The failure of the material to meet the specifications

calls into question the degree of processing that the HTMR unit provided, the value of the

material, the degree to which the material is like mined zinc sulfide concentrates, and the

extent to which there is an end market for the material. Thus, to the extent that material fails

to meet these specifications, the Board would be less likely to find that the material is

commodity-like under Section 720.131(c).

In order to protect the environment and to ensure the commodity-like character of EAF

zinc oxide that BRZ accepts for processing, the Board will limit the applicability of this

adjusted standard to EAF zinc oxide that meets the specifications. Representative samples of

each shipment of EAF zinc oxide must be collected, composited, and tested in accordance with

generally accepted practices, such as those specified in “Test Methods for Evaluating Solid

Waste, Physical/Chemical Methods,” EPA Publication No. SW-846 (Third Edition).

In addition, the Board’s determination applies only to EAF zinc oxide to be processed

through BRZ’s electrolytic zinc refinery in Sauget, Illinois. BRZ cannot accept the material

under the adjusted standard for a different use or for processing at a different facility.

Of course, the Board is not determining the status of EAF zinc oxide intended for BRZ

when that material is outside of Illinois. The Board’s determination applies only to EAF zinc

oxide when it is in Illinois. If EAF zinc oxide is produced outside of Illinois, the composite

sampling of each shipment must meet the specifications before the shipment to BRZ enters

Illinois.

In addition, the Board’s determination applies only to EAF zinc oxide that has arrived

at BRZ’s Sauget facility or that is under a legally binding contract for sale to BRZ. Without

this requirement, an unscrupulous generator of EAF zinc oxide could accumulate the material

at its facility and seek to evade Illinois’ hazardous waste regulations by claiming that it plans to

sell the material to BRZ.

BRZ has several options if it objects to the conditions that the Board has placed on this

adjusted standard. First, under the Board’s procedural rules, BRZ may move the Board to

reconsider the conditions that the Board has placed on this adjusted standard. Second, BRZ

may appeal the Board’s adjusted standard to the Illinois Appellate Court. Third, BRZ may

choose to consider EAF zinc oxide a solid waste in lieu of accepting the material under the

conditions of the adjusted standard.

CONCLUSION

The Board finds that BRZ has established that zinc oxide material produced by

subjecting EAF dust to an HTMR process is commodity-like. Accordingly, the Board finds

that EAF zinc oxide is not a solid waste and grants BRZ’s petition under Section 720.131(c)

for an adjusted standard, subject to the conditions set forth in this order.

The Board emphasizes that this determination applies only to EAF zinc oxide to be

processed through BRZ’s electrolytic zinc refinery in Sauget, St. Clair County. That EAF

zinc oxide also must meet certain specifications. In addition, this determination applies only to

EAF zinc oxide when it is in Illinois and either at the Sauget facility or under a legally binding

contract for sale to BRZ.

This opinion constitutes the Board’s findings of fact and conclusions of law in this

matter.

ORDER

The Board finds that zinc oxide material produced by subjecting electric arc

furnace (EAF) dust from the primary production of steel (K061 under 35 Ill.

Adm. Code 721.132) to a high temperature metals recovery (HTMR) process is

not a solid waste and grants Big River Zinc Corporation (BRZ) an adjusted

standard under 35 Ill. Adm. Code 720.131(c).

2. The adjusted standard is subject to the following conditions:

The determination described in paragraph one of this order applies only

to zinc oxide material:

(1)

that is to be processed through BRZ’s electrolytic zinc refinery in

Sauget, St. Clair County, Illinois;

(2)

that is in Illinois;

(3)

that has arrived at BRZ’s Sauget, St. Clair County, Illinois

facility or that is under a legally binding contract for sale to BRZ;

and

(4)

that meets the following specifications by weight:

(a)

>50% zinc;

(b)

<20% lead;

HTMR unit during the first three months that the HTMR

unit produces zinc oxide material from EAF dust from the

primary production of steel (K061 under 35 Ill. Adm.

Code 721.132));

(d) <4% total gangue materials (silica plus calcium plus

magnesium); and

(e)

<13% chloride;

BRZ must maintain records that document the sources of all zinc oxide

material that BRZ accepts under this adjusted standard;

BRZ must maintain records that demonstrate that each shipment of zinc

oxide material that BRZ accepts under this adjusted standard meets the

specifications set forth in paragraph 2(a)(4) of this order; for this

demonstration, representative samples of each shipment of zinc oxide

material must be collected, composited, and tested in accordance with

generally accepted practices, such as those specified in “Test Methods

for Evaluating Solid Waste, Physical/Chemical Methods,” EPA

Publication No. SW-846 (Third Edition); and

BRZ must maintain the records required under paragraphs 2(b) and 2(c)

of this order for a period of three years and must make such records

available for inspection and copying at any reasonable time during

normal business hours upon the Illinois Environmental Protection

Agency’s request.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this

order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d

R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the 15th day of April 1999 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board