ILLINOIS POLLUTION CONTROL BOARD

November

3,

1988

VILLAGE OF WESTERN SPRINGS,

)

Petitioner,

PCB 88—96

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION

AND

ORDER OF THE BOARD

((by 3.0. Dumelle):

This matter comes before the Board upon Petitioner’s filing

of

a Petition For Review Of Special Waste Determination on June

2,

1988.

In specific, Petitioner requests

this Board to review

the special waste designation

of water treatment plant residue

located

in Western Springs,

Illinois.

Western Springs seeks the

de—classification of calcium carbonate pellets (from the

treatment plant) as

a special waste;

thereby facilitating easier

disposal at

a sanitary landfill.

Petitioner urges

that the

Illinois Environmental Protection Agency

(Agency) holds

this

authority pursuant

to Ill.

Rev. Stat.

1988 ch.

111 1/2, par.

1022.9(d).

On April

28, 1988,

in response to a request by Petitioner,

the Illinois Environmental Protection Agency denied

a request to

de—list as

a “special waste” the calcium carbonate pellets from

Petitioner’s water treatment plant.

BACKGROUND

Western Springs owns and operates a water treatment plant

which softens 1,000,000 gallons of well water per day, making

it

useful for domestic purposes.

In 1985 Petitioner purchased and

installed

a unique water softening system called “spiracter”.

The spiracter consists of

a cylindrical tank which contains

a bed

of silica sand.

Lime is added

to the raw water.

As the lime

interacts with

the raw water, calcium carbonate deposits and sand

will settle

in the bed.

Periodically some calcium carbonate

covered sand

is removed and fresh sand is added.

The sand which

is removed

is the water treatment residue at issue

in this

case.

Petitioner seeks that this residue be de—classified from

being

a “special waste”

so

it can be landfilled without the

restrictions associated with special wastes.

93—297

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—2—

The

calcium carbonate pellets produced by the spiracter

system are inert pellets consisting

of 93.9 percent calcium

(sic)

and 0.5 percent silicon dioxide.

The pellets vary

in size from

1/16 inch to 1/4 inch in diameter.

Petitioner asserts the

pellets are not odorous,

are not easily airborne,

do not

represent any handling problems and do not readily break down in

the presence

of water.

Petition for review, 6/2/88,

p.

3.

Petitioner contends that the pellets may be properly and

safely de—classified from a special waste pursuant to

Ill. Rev.

Stat.

1988,

ch 111 1/2,

par. 1022.9(d) which states as follows:

d.

Until

such

time

as

the

regulations

required

in

subsection

(c)

of

this

Section

are

effective,

any

person

may

request

the

Agency

to

determine

that

a

waste

is

not

a

special waste.

Within

60

days

of

receipt

of

a

written request the

Agency

shall

make

a

final

determination,

which

shall be based on whether

the waste

would pose

a

present

or potential

threat

to

human health

or

to

the environment

or

if

such

waste

has

inherent

properties

which

make

disposal

of

such waste

in

a

landfill

difficult

to

manage

by

normal

means.

On April 28,

1988, Lawrence W.

Eastep,

P.E.,

Manager for the

Permit

Section,

Division

of

Land

Pollution

Control

for

the

Agency,

denied

Petitioner’s

request

for

de—classification.

Although

the

denial

letter

stated

that

the

pellets

at

issue

do

not appear to pose

a threat to human health and environment, the

request for de—classification was denied because Section 3.45

of

the Environmental Protection Act specifically identifies

pollution control waste (calcium carbonate covered sand pellets)

as

a special waste,

and the Agency believes

it

is without

authority to de—classify substances specifically identified as

special wastes by the General Assembly.

On June 2,

1988 Petitioner timely filed its Petition For

Review of

the Agency decision;

on July 11,

1988 the Agency filed

its Agency record.

On September

20,

1988

a hearing was held

in

this matter.

At hearing the parties stipulated

that the calcium

carbonate sand pellets at issue do not pose

a present or

potential threat

to human health or

to the environment, nor do

the pellets appear

to have inherent properties which make

their

disposal

in

a landfill difficult

to manage by normal means.

Stip.

p.

2.

Petitioner’s brief was filed on September

30,

1988;

Respondent’s responsive brief was filed on October

21,

1988;

Petitioner’s

reply brief was filed on October

26,

1988.

This

matter

is ready for adjudication.

93—298

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—3—

In arguing

that the Agency

lacks authority

to de—list wastes

which are specifically identified

in the Act

(Sections 3.27 and

3.45)

as special wastes,

the Agency presents two arguments.

First the Agency contends that Section 22.9(d),

supra,

is

procedural

in nature and,

therefore does not supercede the clear

definition of pollution control waste set forth at Section

3.27.

Secondly the Agency asserts that the language of Section

22.9(d)

of the Act merely codifies the same standard that

preceded

the adoption of Section 22.9(d);

thus,

there

is no

substantive change,

thus,

the Agency cannot de—classify this

substance.

In support of

this argument the Agency cites Aurora

Metals

v.

IEPA, PCB 82—12, July 1,

1982,

as case authority for

the fact that this Board has previously held that the Agency

lacks authority to de—classify wastes which the General Assembly

has specifically identified

as being pollution control wastes, or

special wastes.

The Agency’s reliance on Aurora Metals

is misplaced because

the General Assembly amended the Act on September

4,

1986 to add

the language of Section 22.9(d) which specifically

requires the

Agency

to determine that

a waste

is not a special waste based

upon whether the waste poses

a threat or

a potential

threat to

human health or

to the environment or

if such waste contains

inherent properties which make disposal difficult.

Ill.

Rev.

Stat.

1988,

ch.

111

1/2,

par.

1022.9(d).

Aurora Metals was

decided

in 1982

——

4 years before the above

legislative

amendment.

The language of Section 22.9(d)

is clear

on its face

and further construing the legislative intent

is not necessary.

The Agency must review the submitted request and determine

whether the calcium carbonate covered sand pellets meet the

criteria set forth

in Section 22.9(d).

If the criteria are

satisfied,

Petitioner’s request should be granted.

The Board notes that

the case at issue does not require the

Agency to determine that all pollution control wastes are not

special wastes.

The issue presented

in this case

is whether the

applicant has demonstrated

to the Agency that calcium carbonate

sand pellets do not constitute

a present or

future risk to human

health or

the environment

and whether they may be safely

landfilled by normal means.

The Act clearly imposes

a duty of

the Agency to make

•this determination.

Having determined that the Agency holds

the authority to

make the determination requested by petitioner,

the Board remands

this matter

to the Agency with instructions

to review

Petitioner’s request consistent with this Opinion.

The parties

should note that the Board does not at

this time address

the

substantive issues posed

in Section 22.9.

This

is

for the Agency

to decide.

Thus the Board does not at this time consider whether

the pellets contain excessive amounts

of combined radium 226 and

228.

93—29 9

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—4—

This matter

is

remanded to the Agency for

a decision on

whether

the pellets at issue meet the criteria set forth in

Section 22.9(d).

IT

IS SO ORDERED.

Board Member

J. Anderson abstained.

I,

Dorothy M.

Gunn, Clerk

of

the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the

_______________

day of ~

,

1988 by a vote

of

~-

o

.

Dorothy M.,,~unn,Clerk

Illinois l*6llution Control Board

93—300