ILLINOIS POLLUTION CONTROL BOARD
February 6,
1992
IN THE MATTER OF:
)
PETITION OF KEYSTONE STEEL
)
AS 91-1
AND
WIRE CO. FOR
)
(RCRA Delisting
HAZARDOUS WASTE DELISTING
)
Adjusted Standard)
LEE
R.
CUNNINGHAM
OF
GARDNER,
CARTON
&
DOUGLAS
APPEARED
ON
BEHALF
OF
PETITIONER.
TODD RETTIG APPEARED ON
BEHALF
OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on the filing of a
petition for adjusted standard by Keystone Steel and Wire Company
(Keystone).
Keystone seeks an exclusion for its chemically
stabilized electric arc furnace dust from the list of hazardous
wastes from specific sources found at 35 Iii. Adm. Code 721.132.
This is
a case of first impression before the Board,
as it
involves the Board’s first use of its full RCRA waste delisting
authority.
Procedural History
On January 22,
1991,
Keystone filed a petition for adjusted
standard from 35 Ill. Adm. Code 721.132 for the treated electric
arc furnace dust
(K061) waste produced at its Peoria County
facility.
At the time this petition was filed, the Board was
in
the process of adopting adjusted standard procedural rules
tailored to handle delisting petitions.
On February 28,
1991,
the Board continued this proceeding until after final adoption of
R90-17 on the motions of the Agency and Keystone.
In addition,
the Board delayed Keystone’s filing of proof of publication and
the Agency’s filing of its recommendation until after the
approximate effective date of R90-17.
In the Matter of:
RCRA
Delistincis, R90—17,
119 PCB 181, February 28,
1991,
effective May
9,
1991.
The Board amended 35 Ill.
Adm. Code 720.120,
720.122,
721.110 and 721.111 in R90—17 on February 28,
1991,
(effective
May 9,
1991)
to allow use of the adjusted standards procedures
for delistings.
These amendments were made by the Board
in
response to the March
1,
1990, USEPA delegation of authority to
Illinois to administer several additional components of the RCRA
program, including the authority to delist hazardous waste in
130—113
2
lieu of USEPA and pursuant to 35
Ill. Adm. Code 720.122.
(55
Fed. Reg. 7320.)
Several post—adoption modifications to R90-17
were made in a Board Order of April 11,
1991.
Keystone filed supplemental information on July 9,
1991.
On September 26,
1991, the Board granted the Agency’s motion to
file recommendation instanter and its recommendation filed with
the Board on September 16,
1991.
The Board also granted
Keystone’s motion for leave to file a response to the Agency
recommendation filed September 23,
1991.
On October 24,
1991,
the Boar~igranted the Agency’s motion to file instanter a reply
to Keystone’s response filed with the Board on October 21,
1991.
Hearing was waived and no hearing has been held.
BACKGROUND
Keystone’s facility is located on 639 acres in the southern
portion of Peoria, Illinois.
The Peoria facility manufactures 5—
inch square billets,
steel rods,
fencing, welded fabric,
special
wire products, and nails using two electric arc furnaces for the
production of the steel,
a billet caster,
a rod mill, and a wire
mill.
The electric arc furnaces produce molten liquid steel from
sized and graded scrap steel.
Keystone provided seven months of
scrap inventory data,
including grades and usage in charge tons,
with its petition.
Pet.
at Appendix G.
Keystone maintains
that there are minimal production variables because a fairly
standard selection of scrap materials are used to feed the
furnaces.
Pet.
at
17 and 19.
The scrap metal and fluxes are
melted at approximately 3000 degrees Fahrenheit.
Pet.
at 16.
Keystone asserts that any oil,grease,
or volatile substances
present in the scrap metal are volatilized and destroyed in the
high temperatures of the furnaces.
Pet.
at 10,
17.
Specific
additives are added as required to the molten steel before it is
poured through the billet casting machine.
The billets are
cooled, reheated, and rolled or pressed into rods.
The electric arc furnaces generate gases which carry
particulate matter during production of steel.
The particulate
matter is collected by air pollution control e~ui~mentas dust or
sludge depending on the pollution control method.
The dust is
listed as a hazardous waste in 35 Ill.
Adm. Code 721.132.
The
dust at Keystone’s facility is collected in two baghouses which
are drawn down daily.
Pet.
at 19.
Keystone’s furnaces produce
approximately 30 tons of baghouse dust per day or 10,000 tons per
year.
The dust is red brown, has particles which generally range
1
Although
the pertinent
regulations
refer
to
“emission
control dust/sludge”,
only the dust
is relevant to this adjusted
standard.
130—114
3
in size between 0.1 to 14 microns, and is fairly uniform in
composition.
Pet.
at 17.
Present disposal of the furnace dust
is to an off—site hazardous waste
(Part B)• landfill.
Pet.
at
2.
Keystone states that if the delisting petition is approved,
the dust will be sent to the stabilization process equipment via
a pneumatic conveyance which will be designed to eliminate
fugitive emissions and then sent to a nonhazardous landfill.
Pet.
at 22, 27.
REGULATORY
FRAMEWORK
Section 22.4 of the Act requires that the identification and
listing of hazardous wastes in Illinois must be identical in
substance, to that in the USEPA’s RCRA program
(40 C.F.R.
261).
Regulations governing the identification and listing of hazardous
wastes are found in 35
Ill. Adm. Code 721.
Pertinent to this
adjusted standard are the lists of hazardous wastes
in 35 Ill.
Adin. Code 721.Subpart D.
Under 35 Ill. Adm. Code 721.132, titled
“Hazardous Waste from Specific Sources”, the “emission control
dust/sludge from the primary production of steel in electric
furnaces” is a hazardous waste from the iron and steel industry,
with a EPA Hazardous Waste Number of K061 and a hazard code of
“T”.
35 Ill.
Adin.
Code 721.Appendix I contains a list of wastes
which have been excluded
(delisted)
from the lists of hazardous
wastes pursuant to
35 Ill. Adm. Code 720.
The Board’s regulations for delisting of wastes are
contained in 35 Ill. Adm. Code 720.Subpart C,
as amended in R90-
17. In the Matter of:
RCRA Delistincis,
R90—17,
119 PCB 181,
February 28,
1991,
effective May 9,
1991.
Section 720.122(n)
provides,
in part,
as follows:
Section 720.122
‘Waste Delisting
(n)
Delistings which have not been adopted by USEPA may be
proposed to the Board pursuant to a petition for
adjusted standard pursuant to 35 Ill.
Adm. Code
106.Subpart
G.
The justification for the adjusted
standard is as specified in subsections
(a) et seq.,
as
applicable to the waste in question.
Section 720.122(d) provides the level of justification for
wastes listed in code “T”.
Section
(d)
states:
(d)
Toxic waste.
If the waste is listed in code “T”
.
.
(1)
the petitioner shall demonstrate that the waste:
(A)
Does not contain the constituent or
constituents
(as defined in 35 Ill. Adm. Code
721.Appendix G) that caused USEPA to list the
waste, using the appropriate test methods
130— 115
4
prescribed
.
.
.;
or
(B)
Although containing one or more of the
hazardous constituents
(as defined in
35 Ill.
Adiu. Code 721.Appendix G) that caused USEPA
to list the waste, does not meet the
criterion of 35 Ill.
Adm. Code 721.111(a) (3)
when considering the factors used in 35 Ill.
Adm. Code 721.111(a) (3) (A) through
(K)
under
which the waste was listed as hazardous; and
(3)
The petitioner shall demonstrate that the waste
does not exhibit any of the characteristics,
defined in 35 Ill.
Adm. Code 721.121,
721.122,
721.123 or 721.124 using any applicable methods
prescribed in those Sections.
In addition to the requirements of Section 720.122(n),
a
petition for adjusted standard must also comply with 35 Ill. Adm.
Code 720.122(1).
Subsection
(1) contains a list of 12 additional
points of information necessary to have a complete and reviewable
petition.
These twelve items will be discussed later in this
opinion.
PROPOSED ADJUSTED STANDARD
As previously stated, Keystone requests an adjusted standard
to delist its chemically stabilized electric arc furnace dust
from Section 721.132,.
The delisting would allow Keystone to
dispose of its stabilized dust at a non-RCRA landfill.
Keystone’s petition requests that the Board make the following
determination in this adjusted standard:
Emission control dust/sludge from the primary
production of steel
in electric furnaces at the
Keystone Steel and Wire Corporation’s steel making
facility located at 7000 S.W. Adams Street in Peoria,
Illinois,
is not a hazardous waste pursuant to 35 Ill.
Adm. 721.132 after stabilization by the Super Detox
process.2
Keystone’s petition discussed each of the eleven factors
present in Section 721.111(a) (3),
as well as the requirements of
Sections 720.122(d) (3), and 720.122(h)
and
(1).
The Board has
summarized the discussion below, beginning with the criteria in
Section 721.111(a) (3) (A) through
(K).
2
The Super Detox process is a trade secret process.
130—116
5
A.
Nature of Toxicity
-
Keystone states that although ‘the
constituents that make the waste hazardous are still present
after treatment, the treatment renders the constituents
unavailable to the environment “at concentrations sufficient
to cause environmental harm.”
B.
Concentration of Constituents in Waste
-
The
concentrations will be slightly lower than approximately
0.109
chromium,
1.535
lead and 0.046
cadmium after
treatment.
C.
Migration Potential
—
Keystone states that the elements
of concern will not leach out in quantities exceeding six
times the National Primary Drinking Water Standard
(NPDWS).
The
VHS
model predicts that water outside the landfill
boundaries will meet the NPDWS.
D.
and E.
Persistence and Degradation and Degradation into
Non Harmful Constituents
-
Keystone states that the
constituents will persist and not degrade after
stabilization treatment.
F.
Bioaccumulation
—
Keystone asserts that the
stabilization process makes the elements of concern
unavailable to the environment.
G. and I.
Plausible Improper Management and Impro~er•
Management Environmental Impacts
—
Keystone states that
adverse impacts could not occur unless “the material was
continuously left exposed and subjected to extreme acidic
washes over an extended period of time” as demonstrated by
multiple extraction procedure tests.
Keystone asserts that
landfill conditions like that cannot reasonably be
anticipated.
H.
Waste Quantities Generated
—
At normal operating
capacity, approximately 30 tons of baghouse dust per day or
10,000 tons per year are generated.
After stabilization,
the stabilized waste is about 1.4 times the original weight
of the dust.
Pet.
at 7.
J. and K.
Other Governmental Activities
and Other F~ctors
-
Keystone refers the Board to a USEPA delisting that is
based on the same stabilization process Keystone proposes to
use.
Pursuant to Section 720.122(d) (3), Keystone states that the
characteristic of ignitability is not of concern since the dust
has been exposed to temperatures exceeding 3000 degrees
Fahrenheit and the stabilization treatment does not add materials
which are ignitable.
Neither are the characteristics of
cprrosivity or reactivity present in the stabilized waste.
130—117
6
Keystone does not believe that there are any factors which could
cause its stabilized waste to be hazardous under this section.
Keystone’s petition also, discussed each of the requirements
listed in Sections 720.122(h) and
(i).
For subsection
(h),
Keystone asserts that the sampling of wastes it used was
representative of the uniformity of the dust.
The samples were
taken over a 24 day period, and were composited into six samples.
Keystone’s petition also provided the additional information
required’ by Section 720.122(i).
The Board will summarize this
information.
For factors
(1) and
(2), Keystone provided the name
and address of the laboratory and the names and qualifications of
the personnel at the laboratory that performed the sampling and
testing of the treated and untreated waste.
In addition,
Keystone supplied information on the laboratory’s quality control
and quality assurance programs.
For factor
(3), Keystone
presented the dates of sampling and testing, as well as a letter
from USEPA approving Keystone’s proposed sampling and testing
program with certain changes.
For factors
(4),
(5),
(6) and
(7), Keystone gave
descriptions of the manufacturing processes,
feed materials,
and’
waste; estimates of the average, monthly, and annual quantities
of the waste; the location of its facility; and a discussion of
the criteria for listing a hazardous waste.
Much of this
information has already been discussed in this opinion in the
Background section and in the above discussion concerning the
factors in Section 721.111(a) (3).
Factors
(8) and
(9) require a description of the
methodologies and equipment used to sample the waste.
The
petition states that Keystone’s samples were taken daily from
each baghouse before entering the storage silo,
and composited as
one daily sample for each of twenty four days.
The samples were
collected by an engineer, sealed and labeled, and forwarded to
the laboratory with chain—of—custody forms.
The samples were
individually analyzed and afterwards the three daily composites
with the highest total metal concentrations were kept separate
while the remaining daily composites were placed in three test
composites of seven samples each.
These six composite samples
were then tested and analyzed before and after Super Detox
processing.
Pet.
at 19-21, Appendix B.
The untreated waste was analyzed for total constituents and
the treated waste samples were tested with the Toxicity
Characteristic Leaching Procedure (TCLP)
followed by the Multiple
Extraction Procedure (MEP).
Keystone provided the results of the
tests in its appendices in accord with factor
(10).
For factor
(11), all the names and model numbers of the instruments used for
testing the samples was presented in Appendix J.
Appendix N
contains the certification statement required by factor
(12).
130—118
7
On July
9,
1991, Keystone filed supplemental information
with the Board concerning the zinc content of the untreated dust.
On page 18 of the petition, Keystone had stated the zinc content
of the dust as 13.64 percent.
The supplemental information
corrected this amount. to 19 percent..
Keystone asserts that the
difference results from a change in sampling and testing
procedures instead of an actual change in the zinc content of the
samples.
Keystone states that “thus,
the testing data
presented in the petition for the stabilized
EAF
dust should
continue to accurately reflect the leachability of the material.”
Keystone’ contends that this supplemental information has no
significant impact on the delisting petition because “even if
there has been a significant increase in the zinc content of the
EAF
dust,
CSI
laboratory)
has assured Keystone that its
stabilization process will produce a uniform product in terms of
leachability over a wide range of zinc contents.”
AGENCY RECOMMENDATION
The Agency filed its recommendation on September .16,
1991.
The Agency recommended that the petition for adjusted standard be
denied due to informational deficiencies that prevented the
Agency “from assessing the environmental and public health
impacts of the waste” in question.
The alleged information
deficiencies are solely related to the vertical and horizontal
spread model
(VHS model)
relied upon by Keystone for several of
its requirements.
The Agency claimed that,
of the numerous
factors which Keystone had to respond to and which are laid out
above,
fourteen could not be reviewed because the Agency could
not substantiate Keystone’s assertions independently without the
information requested on the
VHS
model.
The Agency asserts that
the VHS model predicts not only potential mobility of hazardous
constituents but also characteristics of the waste.
The basis of the Agency’s concern is that it must be able to
perform uniform and accurate reviews of contaminant transport
models to achieve reliable and accurate recommendations as
required by the adjusted standard regulations.
The Agency’s
requests for information stemmed from the Board regulations for
contaminant transport model reviews found at 35
Ill.
Adm. Code
811.317, 812.316, and 813.111.
The Agency recognized that these
regulations were not specifically applicable to delisting
petitions but believed they provided guidance for achieving
uniformity and accuracy in delisting matters.
In its “Agency
Reply to Keystone’s Response”, filed October 21,
1991, the Agency
claimed that it was not “challenging the validity or
appropriateness of the
VHS
model” but rather,
it was seeking
“information that will substantiate the VHS.models
sic)
appropriateness,
reliability and validity.”
In the event the Board granted the petition, the Agency
response also contained proposed language for the adjusted
130—119
8
standard which would prevent the Illinois RCRA program from being
less than substantially equivalent to the federal RCRA program.
The language proposed therefore parallels the language used by
the tJSEPA for delistings of electric arc furnace dust from other
members of the iron and steel industry.
This language is used in
substantial part by the Board for this delisting and will not
therefore be reproduced here.
BOARD DISCUSSION
This adjusted standard petition for delisting is the first
of its kind before the Board.
Prior to March 19.90, only the
USEPA had the authority to delist a hazardous waste in Illinois.
The Board could only adopt a delisting identical in substance to
the federal action taken by USEPA.
The Board,
therefore,
did not
undertake a review or analysis of the information contained in
the petitions for delisting.
With this docket, AS91—l, the Board
and the Agency must for the first time assess the assertions,
evidence, testing, and supporting documentation submitted in a
petition to delist.
Without doubt, this delisting under the new
authority is the most difficult because of the questions and
uncertainties normally associated with a matter of first
impression.
Although many of these problems were foreseen and
resolved in the R90—l7 rulemaking,
others have arisen.
The Adjusted Standard Process
The pathway along which this first adjusted standard
delisting request wended its way to the Board for decision
strongly suggests that it would be advantageous to discuss the
use of the adjusted standard procedure itself, and more
specifically its use for delistings.
The adjusted standard procedure evolved from an earlier
“exception procedure”, developed in a cooperative effort by the
Agency and the Board.
It was crafted to address the special
needs of a number of sewage treatment facilities needing timely
facility-specific standards for their combined sewer overflows.
The procedure proved to be a welcome alternative to the lengthy,
resource intensive “site specific” regulatory process, the only
option generally available at the time.
Subsequently, the Act
was amended and regulations developed to generically authorize
what are now called “adjusted standards”.
We note that the
removal of the mandatory hearing formerly required in the
exception procedure gave promise of even more efficiencies.
•
With
certain adaptations to suit federal procedural expectations, it
is this adjusted standards process that is intended to be
followed in the delisting process.
No matter what adaptations are provided for in the adjusted
standard procedural route, what is essential is that by the time
the matter reaches the Board for decision, the Agency as well as
130—120
9
the petitioner,
either together,
or separately in disagreement,
have identified all the issues and responded to them.
Where
delisting of RCRA hazardous wastes are being considered, the
Agency’s assessment of all the criteria and other informatiOnal
matters that the USEPA expects the Board to rule upon is of
particular importance.
It is intended that the entity seeking the adjusted standard
and the Agency assemble and review the informational
justification before a petition is filed before the Board.
We
have fouhd that the potential for getting the Agency to come in
as a co—petitioner is ample incentive for the petitioner to make
every effort to accommodate the Agency’s informational needs at
that time..
If the Agency approves the petition prepared by the
entity, the best way to keep to a minumum any further burden on
the Board’s, and certainly the Agency’s, resources is for it to
“sign off” in agreement as a co-petitioner.
Unless the Board
needs some special counsel from the Agency,
(such as its reaction
to something new in a Federal Register), no further Agency
“paper”
is necessary; no separate responses are necessary.
Even
if a hearing is held,
the Agency has no procedural obligation to
prepare pre—hearing, at hearing, or post—hearing “paper”.
We
have found that the Agency’s participation at hearing as a co-
petitioner usually is one of response to requests for
clarification.
If the Agency does not come in as a co—petitioner, then the
Agency’s resource burden increases, though not to the degree as
would a site-specific proceeding.
The regulations provide that
the Agency shall state the basis for its decision not to be a co-
petitioner.
That Agency decision, unappealable, allows for a
honing of the issues and, potentially,
a pre-filing resolution of
them.
Once the petition is filed,
the Agency must file a
response to the Board 30 days after the petition is filed.
The
time may seem short, but the procedure is based on the
expectation that
a)
at this juncture all of the information has
been reviewed,
b) the Agency has a problem with the petition, and
c)
all of the areas of disagreement,
including “grant only with
conditions”, would be articulated by the Agency, having been
identified during the pre-filing interaction between the
petitioner and the Agency.
The procedure even provides for a
last—shot “prior to hearing” opportunity for dispute resolution
and adding the Agency as a co-petitioner at that time.
The essence of the adjusted standard procedure is to develop
the information, the issues, and the response at the front end of
the process.
This proceeding went in the opposite direction,
and
resulted in major substantive areas not being addressed by the
Agency at all.
The Agency was granted over 100 days of extension
beyond the 30 days to file its response, and then for the first
time informed the Board that it would not consider or evaluate a
major portion of the petition “due to informational deficiences
130—12 1
10
concerning the
VHS
model”.
Additionally, the Agency stated that
it would,
if asked by the Board, conduct a review of any of the
deficient information that Keystone might be ordered to supply,
estimating that such review would take another 45 days.
Because
the Board is finding that there is no informational deficiency,
the consequence is that,
at the back end of this proceeding, the
Board does not have the benefit of the Agency’s input on criteria
whose review is required under the state’s federally derived
delisting provisions.
We advise that, where a perceived deficiency exists that
threatens to frustrate a full Agency response, either the Agency
or the petitioner should bring the matter to the Board at the
outset.
The petitioner, for example, as a first step may wish to
extend the Agency’s response date so as to provide more
information to the Agency.
~,
In the Matter of:
Petition of
the Illinois-American Water Company for an Adiusted Standard et
~
AS 91-11, January 23,
1992.
The Agency may wish to move to
dismiss for deficiency,
as it has in variance proceedings like
Land
& Lakes Company v.
IEPA,
PCB 91-215, January 23,
1992, or
take other action as appropriate,
so long as the matter is
resolved before the Agency files its response, or alternatively
comes in as a co—petitioner.
USEPA Review Methodology
In addition to following the adjusted standard procedures,
the Board believes the most appropriate manner to evaluate
delisting petitions,
and the easiest,
is to follow the format and
techniques of the USEPA as detailed in Federal Register notices
on this subject matter.
The USEPA’s approach for evaluating
delisting petitions is presented in several notices of proposed
and final rules
in the Federal Register. Both Keystone and the
Agency have provided these notices in their various filings with
the Board.
USEPA states:
“In making a delisting determination, the USEPA
evaluates
each petitioned waste against the listing criteria and
factors listed
as
in 35 Ill.
Adin.
Code 720.
* * *
If,
however, the Agency agrees with the petitioner that the
waste is non—hazardous with respect to the original listing
criteria,
USEPA
then will evaluate the waste with respect
to other factors or criteria, if there is a reasonable basis
to believe that such additional factors could cause the
waste to be hazardous.
* * *
The Agency
uses
such
information to identify plausible exposure routes for
hazardous constituents present in the wastes and,
fuses
a
particular fate and transport model VHS
model)
to predict
the concentration of hazardous constituents that may be
released from the petitioned wastes after disposal and to
determine the potential impact of the unregulated disposal
of
the)
petitioned wastes on human health and the
130—122
11
environment.
53 Fed. Reg.
23662, Hazardous Waste Management System:
Identification and Listing Proposed Exclusions
(June 23,
1988)
For electric arc furnace wastes, the USEPA’s general
•approach has been to allow a delisting. if the leachate
concentrations predicted by the vertical.and horizontal spread
(VHS)
model are below the maximum concentration levels
(MCL),
or
health based action level, for each constituent of concern in the
waste.
The USEPA uses the VHS model as support for a delisting
petition on the assumption that the worst—case disposal scenario
for the delisted hazardous waste is landfilling.
Under
a
landfill disposal scenario, the major route of exposure for any
leachate constituent of concern would be ingestion of
contaminated groundwater.
The VHS model is
a groundwater
contaminant transport (GCT) model that uses a set of parameter
values
(not site—specific) that represent a reasonable worst—case
scenario to generate conservative predictions of the
concentrations of hazardous constituents at a distance 500 ft
from.the source.3
The VHS model predictions are used to determine whether
concentrations will be below the MCL for each constituent of
concern.
For a given volume of waste,
the concentration of a
leached hazardous constituent at the hypothetical compliance
point
(500 ft from the facility) can be predicted by multiplying
the constituent’s leachate concentration by the
VHS
model
dilution factor.
The
VHS
model dilution factors for any
constituent of concern have been determined by USEPA for a range
of annual waste volumes
(475-8000 yd3).
~,
USEPA Memorandum,
Solid Waste and Emergency Response Office, dated July 7,
1986
in
Keystone’s Response to Agency Recommendation,
Attachment
H.
An important development in USEPA’s delisting review
methodology occurred in 1991.
On July 18,
1991, the USEPA
formally proposed the use of the EPA’S Composite Model for
Landfills
(EPACNL) to replace the
VHS
model as the fate and
transport model of choice for evaluation of delisting petitions.
56 Fed. Reg.
32993
(July 18,
1991).
The proposed rule on EPACML
asserts that the EPACML is
a more sophisticated model than ~the
VHS model and that USEPA hopes to replace the VHS with the EPACNL
model.
On December 30,
1991, the USEPA responded to comments
~ USEPA will not use site specific parameters because once a
waste is delisted, the ability to predict and control the disposal’
of the waste is terminated.
130— 123
12
concerning the use of the EPACML in a delisting petition for a
K088 waste.
56 Fed. Reg.
67197
(December 30,
1991).
Several
statements made by USEPA in that delisting forewarn of a change
in USEPA policy which will affect the State’s delisting reviews
and all future delisting petitioners.
The USEPA stated:
“the USEPA
believes that,
in this case, the EPACML
model is an appropriate tool to use in the evaluation
because,
as noted in the proposal, the USEPA
believes that disposal in a landfill is a reasonable
wor~t—casescenario for
the)
petitioned waste.
*
*
*
USEPA
is allowed
to use delisting models as a non-
binding policy so long as the
USEPA
exercises
discretion in individual delisting cases and remains
open to challenges to its use.
*
*
*
In the future the USEPA
may consider amending 40 CFR
260.22 to incorporate the use of the EPACML into the,
delisting regulations.
*
*
*
While the results to
sic)
the EPACML and
VHS
are
similar in some ways
.
.
.,
the EPACML yields somewhat
higher DAF5 dilution
attenuation factors) than the VHS
model for a given volume of waste.
Therefore, the
Agency believes that delistings granted in the past
would likely be granted if re—evaluated using the newer
model.
USEPA is evaluating the impact of the new model
on conditional delistings
(i.e.,
delistings that
require verification testing of the waste,
.
.
.)
and
will consider the need for re—evaluation on a case—by—
case basis.”
56 Fed. Reg. 67202—67203, Hazardous Waste Management
System: Identification and Listing of Hazardous Waste;
Final Exclusion (December 30,
1991).
Board Review of Keystone’s Petition
Keystone’s petition is properly filed pursuant to Section
720.122(n).
Both the Agency and Keystone agree that Keystone
cannot meet the level of justification in Section
720.122(d) (1) (A) because the treated waste still contains the
constituents
(lead, cadmium, and hexavalent chromium) which
caused it to be listed by USEPA.
(35 Ill. Adm. Code 721.Appendix
G.)
Therefore, Keystone must be able to meet the level of
130— 124
13
justification in Section 720.122(d) (1) (B) and Section
720.122(d) (3)
to satisfy 35 Ill. Adm. Code 106.903(b).
Additionally, Keystone’s petition must include the information
requested in Section 720.122(i) (1) through
(12) and Section
106.705(a)
through
(1) pursuant to 35 Ill.
Adm. Code 106.705.
Keystone has provided information on all the points required
in the applicable sections of Parts, 720,
721, and 106.
The
Agency recommended a denial of the petition for adjusted standard
and stated the reasons for its recommendation.
The Board must
determin~,after consideration of the Agency’s recommendation,
whether Keystone has met the level of justification.
The Board’s determination under Section 720.122(d) (1) (B),
is
made after evaluation of certain criteria listed in Section
721.111(a) (3) (A) through
(K).
The information provided by
Keystone’s petition on each of the criteria has been summarized
earlier.
The Agency recommendation declined to respond to
Keystone’s petition on criteria A-G,
I, and K, citing
informational deficiencies concerning the VHS model.
.As for
criteria H, the Agency stated that it relied upon the accuracy of
Keystone’s petition because it had no independent verification of
the amount of waste generated.
For criteria J,
concerning other
government actions, the Agency again cited to informational
deficiencies relating to the VHS model and then mentioned the
USEPA’s new land disposal restrictions affecting electric arc
furnace dust.
Section 720.122(d) (3) requires that a petitioner demonstrate
that its waste does not exhibit the characteristics of
ignitability, corrosivity, reactivity,
or toxicity as defined
in
35
Ill. Adm. Code 721.121, 721.122, 721.123, and 721.124,
respectively.
Keystone’s petition states that its waste does not
exhibit these characteristics.
The Agency declined to respond to
Keystone’s petition citing informational deficiencies concerning
the VHS model.
In response to Section 720.122(h), governing the quantity
and quality of the sampling techniques to be used,
Keystone
discussed its sampling program in detail.
The Agency
recommendation stated that the sampling techniques were
acceptable in terms of quality.
With regards to the factors listed under Section 720.122(i),
the Agency found the sampling methodology, equipment,
handling,
and preparation carried out by Keystone and the laboratory and
the attached certification to be “appropriate” and/or
“acceptable”.
Factors
1,
8,
9,
11, and 12.)
The statements
describing the facility location, manufacturing process, and
sampling and test dates were considered “accurate” by the Agency.
Factors
3,
4, and 5.
The Agency stated that it had no
independent verification and had to rely on the accuracy of
130—125
14
Keystone’s petition for the project members, waste production,
tests performed, equipment used, and test results.
Factors
2,
6, and 10.
For factor
7, concerning the characteristics for
listing a hazardous waste, the Agency declined to respond to
Keystone’s petition citing informational deficiencies concerning
the VHS model.
Despite the alleged deficiencies concerning the VHS model,
the Board cannot understand the Agency’s refusal to review those
criteria and factors which do not concern the
VHS
model.
The
criteria’ listed in Sections 720.122 and 721.111, according to
federal law, must be evaluated and found acceptable before a
delisting petition may be granted.
A reasonable number of the
criteria not addressed at all by the Agency, and required by
federal law in a delisting petition, do not concern the mobility
of hazardous constituents as predicted by the VHS model.
For
instance, the Agency did not need the VHS model to determine if
the SW-846 methods Keystone used toperform the analyses on its
untreated dust were proper for determining the concentration of
the constituents of the waste.
Neither would a contaminant
transport model have helped the Agency evaluate the presence of
the characteristics of ignitability, corrosivity, reactivity,
and
toxicity.
For those criteria which did depend on the VHS model, we
suggest that the Agency did have enough information to perform a
review.
Such a review would not have precluded the Agency from
simultaneously filing an objection to the use of the model and
its alleged deficiencies.
The Agency was supplied with an
extensive amount of information on the VHS model from USEPA
notices in the Federal Register.
These notices provide detailed
descriptions of the modeling objective,
attributes,
and
parameters.4
Additionally, these notices show that the USEPA has
used the VHS model since 1985 to evaluate delisting petitions for
landfill disposal.
The effect of the Agency’s challenge to Keystone’s use of
the VHS model was to challenge USEPA’s use of the
VHS
model.
It
was reasonable for Keystone to cite to and provide copies of
USEPA’s detailed Federal Register notices.
The basic tenet for
everyone is that Illinois’ delegated delisting processes must be
compatible with those of the USEPA.
In the same vein, where the
delisting methods, tests, and procedures are already used for the
same purpose by the USEPA for its own determinations, they are
acceptable to the Board on this basis alone.
In so saying,’we
~
54 Fed. Reg. 43832
(October 27, 1989); 50 FR 7882 (February
26,
1985);
50 FR 48896
(November 27,
1985),
and the RCRA public
docket for these notices provide a detailed description of the VHS
model and its parameters.
Keystone provided these Federal Register
notices to the Agency in August of 1991.
130—126
15
emphasize that the Agency is free to challenge whether the
petitioner is using the USEPA referenced test or model
inaccurately or for an inappropriate purpose.
Also,
a petitioner
would need to defend the proposed use of alternative tests or
models.
The Board notes that the leachate analyses data included in
Keystone’s petition
(Attachment K)
indicates that the leachate
concentrations of all the listed waste constituents when
multiplied by the
VHS
model dilution factor will meet the MCLs or
health b’ased action levels at the compliance point.
Therefore,
the Board finds that Keystone has demonstrated,
in accordance
with Section 720.122(d), that its stabilized waste does not meet
the criterion of 721.111(a) (3) for listing a hazardous waste.
In
addition, the Board concludes that Keystone has sufficiently
addressed all items of Section 720.122(i)
and Section 106.705
which were relevant prior to August 19,
1991.
Keystone’s
petition is deficient in several areas of concern which arose
after that date and will be discussed in full below.
USEPA Treatment Standards
The Board will now address the concerns raised by the
USEPA’s Final Rule on Land Disposal Restrictions for Electric Arc
Furnace Dust
(1061)
providing treatment standards for 1061
nonwastewaters in the high zinc subcategory (containing equal to
or greater than 15
total zinc).
These new regulations are
relevant to the Board’s decision because of the necessity of
keeping the Illinois program substantially equivalent to the
federal program.
If a USEPA decision to delist would be based on
these regulations then the Board believes that it also should
base its decision on these regulations.
The history of K061 treatment standards begins on August 17,
1988, when USEPA established two subcategories for nonwastewater
forms of K06l;
low zinc
(less than 15
total
zinc)
and high zinc
(greater than or equal to 15
total zinc)
as determined at the
point of initial generation.
The treatment standards for low
zinc K06l regulated the concentration of four metals.
For high
zinc K061, the USEPA instituted an interim treatment standard
identical to the low zinc standard for a two year period expiring
on August
8,
1990.
53
Fed.
Reg. 31162—31164
(August 17,
1988).
The USEPA decided to extend the interim standard for an
additional year due to considerations of insufficient storage
capacity.
56 Fed.
Reg. 41167
(August 19,
1991).
On August
19,
1991, the USEPA published its final rule for
130—127
16
treatment standards of high zinc nonwastewater K061 waste.5
56
Fed. Reg.
41164
(August 19,
1991).
The new rule contains
concentration based treatment standards for
14 metals generally
present in
1061
wastes.
The standards were developed from
treatment performance data for high temperature metal recovery
(HTNR) processes.
USEPA chose the
HTMR
process as best
demonstrated available technology
(BDAT) because of the resource
recovery, waste minimization potential,
and effective metal
immobilization which occurs during treatment.
The reasons why
USEPA is regulating fourteen metals for high zinc K061,
instead
of just the four in low zinc 1061,
are stated at 56 Fed. Reg.
41167,
41168
(August 19,
1991).
USEPA’s final rule also include~
generic exclusion conditions for delisting nonwastewater 1061
waste treated by the HTNR process.
The generic exclusion
conditions include numerical exclusion levels derived from BDAT
treatment standards and
VHS
modeling for 14 constituents except
zinc,
and require placement of the treated 1061
waste in a RCRA
Subtitle D landfill.
With regard to the ability of stabilization processes to
meet the new standards,
the USEPA discussed both the shortcomings
and the capabilities of stabilization in the notice of final
rule.
According to USEPA, the stabilization process has been
documented to be highly matrix dependent,
prone to chemical
interferences, and demonstrating variable leaching behavior.
In
addition, the stabilization process generally increases waste
volumes.
56 Fed. Reg.
41173.
Nonetheless, stabilization
technologies are capable of achieving the new treatment
standards.
56 Fed. Reg.
41167,
41169.
Therefore, the
stabilization processes are not precluded from use by the new
rule as long as the residues “comply with the concentration—based
standards prior to land disposal (assuming that land disposal
occurs) and provided that these levels have not been achieved
through the use of impermissible dilution.”
56 Fed. Reg.
41170.
USEPA also notes that a “generic exclusion level” for stabilized
K061 residues was not proposed due to insufficient data on
stabilization processes.
USEPA finally states that “facility-
specific delisting remains an option for stabilized K061 wastes.”
56 Fed. Reg.
41173.
The USEPA’s notice of final rules notes that the high zinc
nonwastewater K061 waste regulations take effect in all States,
regardless of their authorization status.
Therefore, treated
high zinc nonwastewater K06l wastes in Illinois must meet the new
standards.
As stated in its supplemental information, Keystone’s
~
The Board is updating its RCRA regulations
in R91-13
for
those USEPA actions taken between January
1, 1991 through June 30,
1991.
The next RCRA update docket the Board opens
will be for
USEPA actions taken between July 1, 1991 through December 31,
1991
and will include the new 1061
rule.
130—128
17
waste
is a high zinc nonwastewater 1061
waste and is subject to
the new standards.
However, the Board notes that it is not able
to ascertain whether or not Keystone’s treated waste meets the
treatment standards since Keystone’s petition includes leachate
analysis data for only
9 of the 14 constituents for which the
USEPA has specified treatment standards.6
Instead of delaying
this decision by asking for the missing information, the Board
‘believes that it is reasonable to use the generic exclusion
levels developed for the BDAT
(HTMR) processes to delist
Keystone’s stabilized K061 waste.
Based on the following reasons, the Board has chosen to use
the generic exclusion levels derived from BDAT treatment
standards and VHS modeling and listed in 56 Fed. Reg. 41164
(August 19,
1991)
for the purposes of delisting Keystone’s waste.
First, requiring that Keystone’s stabilized waste meets the BDAT
exclusion levels ensures that it is in compliance with the high
zinc K061 waste treatment standard and therefore can be delisted.
Second, USEPA has stated that stabilization technologies are
capable of meeting the BDAT treatment standards.
Therefore, the
Board will grant the petition for adjusted standard conditioned
on Keystone’s meeting the new generic exclusion levels found,
at
this time,
in 40 CFR 268 as amended in 56 Fed. Reg. 41164-41178,
August 19,
1991.
The adjusted standard will become effective on
‘the date of this order provided Keystone’s treated waste meets
the specified exclusion levels prior to the operation of the
full-scale system.
The Board notes that the USEPA has recently
proposed amendments to the
1061
treatment standards in which the
exclusion levels have been set for zinc and changed for vanadium.
57 Fed. Reg. 974-77
(January
9,
1992).
The Board has not
specified an exclusion level for zinc or modified the level for
vanadium at this time.
However, the Board cautions Keystone that
upon adoption of the USEPA’s amendments,
it must comply with the
new exclusion levels.
The adjusted standard will only apply to the processes and
volumes covered by the original petition of January 22,
1991.
Keystone’s facility would require a new adjusted standard if it
could not meet the conditions of the adjusted standard, its
manufacturing or treatment processes are altered,
or the
percentage of each different type of scrap metal used to charge
the furnace falls outside the percent range of each type of scrap
metal historically used to charge the furnaces
(as documented in
the petition),
and accordingly would need to file a new petition.
Keystone must treat waste generated from changed processes as
hazardous until a new adjusted standard is granted.
We agree with the Agency’s assertions as to the management
6
Keystone
has
not
provided
leachate
data
for
antimony,
beryllium,
thallium, vanadium,
and zinc.
130—129
18
of the waste.
Although management of the waste covered by this
adjusted standard will not be regulated by 35 Ill. Adm. Code 703,
722 through 728, Keystone must either treat,
store, or dispose of
the waste in an on—site facility,
or ensure that the waste is
delivered to an off—site storage, treatment,
or disposal
facility, which is permitted,
licensed, or registered by a State
to manage municipal or industrial solid waste.
Alternatively,
the delisted waste may be delivered to a facility that
‘beneficially uses or reuses,
or legitimately recycles or reclaims
the waste,
or treats the waste prior to such beneficial use,
reuse, r~cycling,or reclamation.
We strongly caution that the USEPA actions regarding the
EPACML model,
VHS
model, and the high zinc standards may require
reevaluation of this delisting.
Due to the changing nature of
the federal program, the need for the state’s program to be
substantially equivalent,
and the enforceability of HSWA driven
regulations before state adoption, the parties must recognize
that the filing of subsequent petitions by Keystone or the Agency
to reopen and revise the adjusted standard may become necessary.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
A.
Pursuant to the authority of Section 28.1 of the
Environmental Protection Act, the Board hereby adopts the
following adjusted standard.
This adjusted standard becomes
effective on February 6,
1992 and
is applicable only to the
electric arc furnace dust wastes collected in Keystone’s
baghouses and treated by the Super Detox process.
B.
Keystone Steel and Wire Company’s fully cured and
uncured chemically stabilized electric arc furnace dust
(“CSEAFD”)
treatment residue generated by the
stabilization process described in their petition filed
January 22,
1991 is nonhazardous, as defined in 35
Ill.
Adm. Code 721.
This exclusion
(for 10,000 tons of
CSEAFD per year)
is conditioned upon the treatment
residue meeting the verification and testing
requirements stated in Section C listed below to ensure
that hazardous constituents are not present in the
treatment residues at levels
of’ regulatory concern.
When this exclusion becomes effective both the ,uncured
and fully cured treatment residues will no longer be
subject to regulation under 35 Ill.
Adm.
Code,
Parts
722 through 728 and the permitting standards of 35 Ill.
Adm. Code 703.
Such wastes shall be required to be
disposed of pursuant to the Board’s non—hazardous
landfill regulations found at 35 Ill. Adm. Code 810
through 815.
130—130
19
C.
Verification and Testing Requirements
1.
Keystone is required to both verify that the treatment
system is on—line and operating as described in the
petition, and to submit a report to the Agency showing
that the on—line treatment system can meet the
delisting.levels of Section D prior to the operation of
the full—scale treatment system.
These conditions are
specific to the upfront exclusion petitioned for by
Keystone.
2.
Testing
a.
Initial Testing:
During the first four weeks of
•operation of the full—scale treatment system,
Keystone must collect representative grab samples
of each treated batch of the CSEAFD and composite
the grab samples daily.
The daily composites,
prior to disposal, must be analyzed for TCLP
leachate concentrations for all the constituents
listed in condition
(D) (1)
including cyanide
(using distilled water in the cyanide
extractions), and analyzed for the constituent
concentrations in condition
(D) (2).
Analyses must
be performed according to SW-846 methodologies,
incorporated by reference in
35 Ill.
Adm. Code
720.111.
Keystone must report the analytical test
data obtained during this initial period not later
than 90 days after the treatment of the first
full-scale batch.
b.
Subsequent Testing:
Keystone shall collect
representative grab samples of each treated batch
of the CSEAFD and composite the grab samples to
produce a weekly composite sample.
The weekly
composites,
prior to disposal, must be analyzed
for TCLP leachate concentrations for all the
constituents listed in condition
(D) (1)
including
cyanide (using distilled water in the cyanide
extractions), and analyzed for the constituent
concentrations in condition
(D) (2).
Analyses must
be performed according to SW—846 methodologies,
incorporated by reference in
35 Ill. Adm. Code
720.111.
The analytical data must be compiled and
maintained on site for a minimum of three years.
These data must be furnished upon request and made
available for inspection by any employee or
representative of the State of Illinois.
D.
Delisting levels:
The TCLP concentrations of the CSEAFD
leachate in mg/l and the concentrations in the CSEAFD waste
130—131
20
in mg/kg shall not exceed the concentrations listed below,
otherwise such wastes shall be managed and disposed in
accordance with 35 Ill.
Adm. Code 703 and 722 through 728.
1.
mdl
Antimony
.
.
.
.
0.063
Arsenic
0.055
Barium
6.3
Beryllium
.
.
.
.
0.0063
Cadmium
0.032
Chromium
(Total)
0.33
Lead
0.095
Mercury
0.009
Nickel
0.63
Selenium
.
.
.
.
0.16
Silver
0.3
Thallium
.
.
*
.
0.013
Vanadium
.
.
.
.
1.26
Zinc
Cyanide
.
4.42
2.
mg/kg
Total Reactive Cyanide
.
250
Total Reactive Sulfide
.
500
E.
Data submittal:
All data must be submitted to the Manager
of the Permits Section, Division of Land Pollution Control,
Illinois Environmental Protection Agency,
2200 Churchill
Road,
P.
0. Box 19276,
Springfield, Illinois,
62794—9276,
within the time period specified.
At the Agency’s request,
Keystone must submit any other analytical data obtained
through Section C within the time period specified by the
Agency.
Failure to submit the required data will be
considered a failure to comply with the adjusted standard
adopted herein and subject Keystone to an enforcement action
initiated by the Agency.
All data must be accompanied by
the following certification statement:
Under civil and criminal penalty of law for the making
or submission of false or fraudulent statements or
representations
(pursuant to the applicable provisions
of Illinois’ Environmental Protection Act),
I certify
that the information contained in or accompanying this
document is true, accurate and complete.
In, the event that any of this information is determined
by the Board in its sole discretion to be false,
inaccurate or incomplete, and upon conveyance of this
fact to Keystone,
I recognize and agree that this
exclusion of wastes will be void as if it never had
effect or to the extend directed by the Board and that
130—132
21
Keystone will be liable for any actions taken in
contravention of the company’s RCRA and CERCLA
obligations premised upon the company’s reliance on the
void exclusion.
(Name of Certifying Person)
(Title of Certifying Person)
Date____________________________________________
Section 41 of the Illinois Environmental Protection Act,
Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041, provides for appeal
of final orders of the Board within 35 days.
The Rules of the
Supreme Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy N.
Gunn, Clerk of the Illinois Pollution Control
Boa1d, hereby certify t
t the above Order was adopted on the
_________
day of
‘
,
1992, by a vote of
~
/i~
Dorothy M. G~nn,Clerk
Illinois Po~/lutionControl Board
130—133
