ILLINOIS POLLUTION CONTROL BOARD
September 7,
1995
JLM
CHEMICALS,
INC.
(formerly BTL
)
SPECIALTY RESINS CORPORATION),
Petitioner,
v.
)
PCB 95-98
)
(Variance
-
RCRA)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
JEROME BOWMAN AND CHARLES M. CHADD,
ROSS
& HARDIES APPEARED ON
BEHALF OF THE PETITIONER;
MICHELLE SIMCIK, PAUL JAGIELLO AND DANIEL NERRIMAN APPEARED ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD BY
(E. Dunham):
This matter comes before the Board on a petition for
variance filed on March 14,
1995 by BTL Specialty Resins’
(JLM/BTL).
Petitioner seeks a determination from the Board that
the byproduct from its phenol production unit
is not K022
hazardous waste or in the alternative,
a variance from the
hazardous waste regulations.
A hearing on the petition was held on May 30,
1995 before
Board hearing officer Deborah Frank in Chicago, Illinois.
On
June 28, 1995 the parties filed a stipulation to amend the
transcript of the hearing.
The Board accepts the stipulation and
notes the corrections to the transcript as agreed to by the
parties.
Petitioner filed its post-hearing brief on June 28,
1995.
Respondent filed its post-hearing brief on July 21,
1995.
The petitioner’s reply brief was filed on August
4,
1995.
The Board’s responsibility
in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1994).)
The Board is charged therein with the responsibility of granting
1
On June 21,
1995, petitioner filed a “Notice of Change of
Corporate
Petitioner”,
indicating that
BTL was purchased
as
an
ongoing entity by JLM Chemicals,
Inc.
(JLM).
Petitioner indicates
that the change in corporate identity does not affect the accuracy
of the information presented to the Board.
The Board has changed
the
caption
in
this
proceeding
to
reflect
the
change.
The
petitioner will be referred to as JLM/BTL.
2
variance from Board regulations whenever it is found that
compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency (Agency)
is required
to appear in hearings on variance petitions.
(415 ILCS 5/4(f).)
The Agency is also charged, among other matters, with the
responsibility of investigating each variance petition and making
a recommendation to the Board as to the disposition of the
petition.
(415 ILCS 5/37 (a)
.)
BACKGROUND
JLM/BTL operates a chemical manufacturing plant at 3350 W.
131st in Blue Island,
Cook County, Illinois.
(Pet. at 1.)
The
plant employs 54 people.
(Pet.
at
1.)
The plant uses
distillation equipment to produce phenol and acetone from cumene.
(Pet.
at 2.)
As part of this operation, JLM/BTL generates a
liquid product referred to as T105 bottoms material.
(Pet. at 2.)
In 1993, the plant generated 7,965,000 pounds of this material.
(Pet.
at 2.)
In 1994, the plant generated 8,307,000 pounds of
Tl05 bottoms material.
(Pet.
at 2.)
In December of 1993, the Agency informed JLM/BTL that the
Tl05 bottoms material is a K022 hazardous waste and should be
handled in accordance with the hazardous waste regulations.
(Pet.
at
2..)
Prior to the Agency notifying JLM/BTL that the T105
bottoms material is a K022 waste, JLM/BTL sold the Tl05 bottoms
material to a fuel blender.
(Pet.
at
3.)
WASTE DETERMINATION
The issue in dispute in this matter is whether the T105
bottoms material
is a K022 waste and therefore must be handled as
a hazardous waste.
Before reviewing the petition for variance
the Board must first address the question of whether JLM/BTL’s
T105 bottoms material is a K022 waste.
A determination by the
Board that the Tl05 bottoms material is not a K022 waste would
eliminate the need for the variance.
Before considering whether the T105 bottoms material is a
hazardous waste the Board must first consider if the Tl05 bottoms
material is a solid waste.
Both parties were asked at hearing to
address the issue of whether the Tl05 bottoms material is,
in the
first instance,
solid waste,
and then whether the waste
is a
hazardous waste.
(Tr.
at 198.)
The Agency presented testimony at
hearing on the issue,
and presented arguments in its post hearing
brief demonstrating that the T105 bottoms material
is a solid
waste.
Petitioners have failed to offer any evidence or
arguments to contradict the Agency’s arguments.
The Board finds that JLM/BTL’s T105 bottoms material
satisfies the definition of solid waste.
Section 721.102(a) (1)
3
defines a solid waste as “any discarded material that is not
excluded by Section 721.104(a)
or that is not excluded pursuant
to 35 Ill.
Adm. Code 720.130 and 720.131.”
(35 Ill. Adm. Code
721.102(a)(1).)
“Discarded material” includes disposed materials
as well as materials that are “abandoned”,
“recycled” or
“considered inherently waste-like”.
(35
Ill.
Adm. Code
721.102(a)(2).)
Materials burned for energy recovery whether
they are used to produce a fuel or are otherwise contained in
fuels are recycled materials.
(35 Ill. Adm. Code
721.102(c)(2)(A).)
JLM/BTL was selling the T105 bottoms material
to a fuel blender for blending and resale to industrial users
therefore the Board finds the Tl05 bottoms material is a solid
waste.
A solid waste is a hazardous waste if
it
is both not
excluded from regulation as a hazardous waste and it meets one of
the criteria listed in 72l.l03(a)(2).
One of the criteria of
Section 721.103 (a) (2)
is listing
in Subpart D of Section 721.
In
Subpart
D,
Section 721.132 describes K022 waste as distillation
bottom tars from the production of phenol/acetone from cumene.
(35 Ill.
Adm. Code 721.132.)
JLM/BTL contends that the T105 bottoms material should not
be classified as K022 hazardous waste because it is not a “tar”.
JLM/BTL maintains that the T105 bottoms material remains a
flowable liquid with a viscosity similar to that of pancake syrup
at room temperature.
Petitioner argues that the Agency is bound
by the limiting language of the regulation which defines K022
waste as a “tar”.
JLM/BTL maintains that its process differs in
critical ways from the process described in the listing document.
JLM/BTL further maintains that the official interpretations of
the regulation issued contemporaneously with the regulation
provide physical characteristics of tars which do not describe
its T105 bottoms material.
The Agency maintains that the T105 bottoms material
satisfies the definition as a K022 waste.
The Agency argues that
the Tl05 bottoms material contains the same hazardous
constituents for which the material
is listed,
namely phenol and
polycyclic aromatic hydrocarbons.
The Agency maintains that the
viscosity of the product was not an issue of concern in creating
the listing document.
The Agency maintains that there are
differing definitions for “tars” and that “tars” does not have
one unique meaning,
even with respect to viscosity.
The definition of “tar” used by JLM/BTL was derived from
dictionaries of the English language.
(Pet.
at 8.)
Since we are
attempting to define a technical term, the Board attempted to
find a definition of “tar”
in the technical literature.
Most
definitions of tar in the chemical engineering texts referred to
tar only with a modifier indicating its source, such as “coal
tar” or “pine tar”.
Grant and Hackh’s Chemical Dictionary 5th
4
Grant and Grant
(1987), defines tar as:
“A thick, brown to black liquid mixture of hydrocarbons and
their derivatives with distinctive odor; obtained by
distillation of wood, peat,
coal,
shale, or other vegetable
or mineral materials.”
While the first part of the definition leads the reader to
believe that the definition describes a material with high
viscosity,
the second part of the definition indicates the
derivation of the tar, and indicates that tar
is a distillation
bottom.
In chemical engineering,
it is commonly known that the
viscosity of a still bottom can be affected by factors such as
temperature, time,
pressure, and feedstock2.
Each of these
parameters is optimized in a well run plant to obtain maximum
product from a process.
The Board does not believe that it was
the intention of the USEPA to permit a chemical manufacturer to
escape regulation because he was willing to decrease the
viscosity of his still bottom by reducing the efficiency of
capture of his product.
JLM/BTL argues repeatedly that its material is not K022
waste because the material is not viscous enough to fit the
dictionary definition of “tar”.
The argument
is irrelevant where
the definition of tar can be found in the regulation itself.
Section 721.132 describes K022 waste as distillation bottom tars
from the production of phenol/acetone from cumene.
(35 Ill. Adm.
Code 721.132.)
Appendix G of Section 721 provides the basis of
listing K022 waste as hazardous waste as phenol, tars
(polycyclic
aromatic hydrocarbons).
(35 Ill. Adm. Code 721.Appendix G.)
The Board finds that the basis for listing includes the
definition of tar that applies to this waste,
and tar here
specifically refers to,
and is defined as, polycyclic aromatic
hydrocarbons
(PAH).
The record states that the witness for the
Agency,
Mr. Reitskins,
believes that polycyclic aromatic
hydrocarbons are present.
(Tr.
at 184.)
The witnesses for
JLM/BTL do not deny that PAH may be present, and JLM/BTL has
presented no analysis that shows that polycyclic aromatic
hydrocarbons are absent.
Mr. Moffat of JLM/BTL stated that gas
chromatography and mass spectroscopy of the T105 bottoms material
did not detect PAH
(Tr.
at 111), but he did not state whether the
tests were run to specifically detect PAH, or to eliminate matrix
interferences to their detection.
In all other respects, the Tl05 bottoms material meets the
definitional requirements of K022 hazardous waste.
2
See Perry’s Chemical Engineer’s Handbook,
6th ed.,
Perry,
R.H. and D. Green, McGraw -Hill
(1984); Chapter 13
—
Distillation.
5
The Board finds that the Tl05 bottoms material produced by
JLM/BTL is a K022 listed hazardous waste.
PETITION FOR VARIANCE
If the Board finds that the T105 bottoms material
is a K022
listed hazardous waste,
JLM/BTL argues in the alternative that
they should be granted a variance for five years to continue
research into alternatives to disposal.
JLM/BTL claims that the
determination that the T105 bottoms material
is a K022 waste and
must be handled as a hazardous waste has resulted in a loss of
revenue from the sale of the Tl05 bottoms material.
JLM/BTL is
currently studying the possibility of alternate uses for the T105
bottoms material.
AGENCY RECOMMENDATION
The Agency filed its recommendation on the petition on April
20, 1995.
In its recommendation,
the Agency restates the
position advanced in its motion to dismiss that this matter is
not the proper subject of a variance action and should not be
considered by the Board.
The Board denied the Agency’s motion to
dismiss on April 20,
1995.
The Agency also restates its position
that the Tl05 bottoms material is a K022 waste.
The Agency recommends that the Board deny the variance
request.
The Agency maintains that the T105 bottoms material is
properly characterized as a K022 waste.
The Agency contends that
JLM/BTL is using the variance procedure as a means to avoid
compliance with the hazardous waste regulations.
The Agency
asserts that the only hardship that JLM/BTL can claim is that it
is now required to comply with the regulations with which all
similar generators have been required to comply with for years.
The Agency contends that the requested variance is inconsistent
with federal law and regulations concerning K022 listed waste.
DISCUSSION
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35(a)
(1992).)
Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public.
(Willowbrook Motel
V.
IPCB
(1985),
135 Ill. App.3d 343,
481 N.E.2d 1032.)
Only with such a
showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
A further feature of a variance is that
it is, by its
nature,
a temporary reprieve from compliance with the Board’s
6
regulations.
Compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
v.
IPCB (1977),
67 Ill.2d 276,
367 N.E.2d 684.)
Accordingly, except in certain special
circumstances,
a variance petitioner is required,
as a condition
to grant of variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
JLM/BTL asserts that compliance with the hazardous waste
regulations will result in an arbitrary and unreasonable hardship
in the form of a financial loss to JLM/BTL.
(Tr.
at 85.)
As a
result of the Agency’s determination that the Tl05 bottoms
material
is a K022 hazardous waste, the fuel blender to which
JLM/BTL sold its material refused to accept further shipments.
The sale of the material to the fuel blender generated revenue of
$115,000 in 1993,
the last year the material was sold.
(Tr.
at
86.)
JLM/BTL now contracts with licensed waste haulers for the
removal and disposal of the T105 bottoms material.
(Tr. at 88.)
The annual cost for the disposal of the Tl05 bottoms material is
$315,000.
(Tr. at 88.)
JLM/BTL anticipates that the costs of
disposal will increase in the future.
(Tr.
at 89.)
JLM/BTL also
made modifications to its plant to comply with the hazardous
waste regulations at a cost of $95,000.
(Tr.
at 87.)
JLM/BTL estimates that compliance with the hazardous waste
regulations will decrease its profits by approximately $430,000
each year.
(Tr.
at 90.)
The total loss of revenue is the sum of
the $115,000 loss from the sale of the material plus the $315,000
for the disposal of the material.
(Tr. at 90.)
JLM/BTL estimates
that this loss represents about one-sixth or one—seventh of its
earnings.
(Tr. at 90.)
JLN/BTL is exploring three new uses for its Tl05 bottoms
material.
(Tr.
at
167.)
JLM/BTL estimates that it would take
between six months to five years to completely develop and
implement any of the new uses being considered by JLM/BTL.
(Tr.
at 168,
170 and 175.)
JLM/BTL hopes to be able to sell as much
of the T105 bottoms material as possible through the development
of these new uses.
(Tr.
at 176.)
JLM/BTL was on notice when the 1981 federal regulations
(40
CFR 261) took effect that K022 waste was listed, and that
material from similar processes was regulated.
(46 FR 4619,
January 16,
1981.)
They were further notified at a pre—
enforcement conference with the Agency
in 1988 that the Agency
did not agree with their determination that Tl05 bottoms material
is not regulated; though the Agency did not contact JLM/BTL on
that matter again until
1993.
(Ag. Rec.
at 3.)
Once the Agency
finally determined that T105 bottoms material was a K022
hazardous waste, JLM/BTL worked diligently to comply with the
regulations, and is today in compliance with the generator
requirements for the collection,
storage and shipment of
7
hazardous waste.
JLM/BTL is currently capable of complying with the hazardous
waste regulations by contracting with licensed waste haulers for
the disposal of its Tl05 bottoms material.
If the variance is
granted, JLM/BTL would be able to handle the unused T105 bottoms
material in compliance with the regulations upon the expiration
of the variance through the use of a licensed waste hauler.
(Tr.
at 176.)
Based upon the record before it and upon review of the
hardship petitioner would encounter,
and the environmental impact
that would result from grant of variance, the Board finds that
petitioner has not presented adequate proof that immediate
compliance with the regulations at issue would result in an
arbitrary and unreasonable hardship on petitioner.
The Board
finds that the financial implications of the hazardous waste
regulations do not represent an unreasonable or arbitrary
hardship.
The costs of compliance for JLM/BTL are the same costs
that are encountered by other generators of similar waste
products.
The Board notes that,
according to the Act, Section 34(a),
variance relief may only be granted where the petitioner shows
that an arbitrary or unreasonable hardship would result if the
relief
is not granted.
(415 ILCS 5/34(a)
(1994).)
Where the
petitioner is currently
in compliance, as in this case,
it
is
presumed that continued compliance is neither arbitrary nor
unreasonable.
Petitioner has presented insufficient information
in this case to overcome that presumption.
The Board finds that petitioner has not shown that variance
relief is appropriate in this case.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
CONCLUSION
The Board hereby determines that the T105 bottoms material
produced by JLM/BTL in their phenol production operation are K022
hazardous waste.
The Board further finds that JLM/BTL
has not shown that it would face an arbitrary or unreasonable
hardship by complying with the hazardous waste regulations.
ORDER
The Board denies the petition for variance filed by JLM/BTL
for the reasons stated above.
8
IT IS SO ORDERED.
Board Member M. McFawn concurred.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/4.
(1992)),
provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35
Ill. Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
t at the above opini
and order was
adopted on the ______________day of
~eA
1995, by a vote of
7—0
.
Dorothy M. ,~4nn,Clerk
Illinois Pd~YlutionControl Board
