s97002.PDF

ILLINOIS POLLUTION CONTROL BOARD

March 19, 1998

IN THE MATTER OF:

PETITION OF CHEMETCO, INC. FOR

ADJUSTED STANDARD FROM 35 ILL.

ADM. CODE 720.131(a) AND (c)

)

AS 97-2

(Adjusted Standard - RCRA)

GEORGE M. VON STAMWITZ AND RICHARD L. WATERS OF ARMSTRONG,

TEASDALE, SCHLAFLY, & DAVIS APPEARED ON BEHALF OF PETITIONER;

CHRISTOPHER P. PERZAN APPEARED ON BEHALF OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY; and

JAMES L. MORGAN APPEARED ON BEHALF OF THE ILLINOIS ATTORNEY

GENERAL’S OFFICE.

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

Chemetco, Inc. (Chemetco) owns and operates a secondary metal smelting facility in

Hartford, Madison County, Illinois. Chemetco uses its furnaces to produce anode copper and

crude solder from used, metal-bearing materials. This proceeding concerns a material that

Chemetco refers to as “zinc oxide,” which Chemetco currently stores in a bunker at its

facility. Chemetco asks that the Board determine that the zinc oxide is not a solid waste when

Chemetco removes it from the bunker for recycling. Chemetco believes that if the Board does

not grant it this determination, Chemetco will have to landfill the zinc oxide on-site.

Chemetco seeks this determination pursuant to 35 Ill. Adm. Code 720.131(a) and (c).

Chemetco asks that the Board’s non-solid waste determination last for five years and three

months to allow Chemetco enough time to sell the zinc oxide stored in the bunker. The

Illinois Environmental Protection Agency (IEPA) opposes Chemetco’s request.

While the Board certainly encourages recycling, the Board finds that Chemetco has not

provided sufficient evidence to establish that Section 720.131(a) applies in this case.

Chemetco also failed to provide all of the information that section requires. In addition, the

Board finds that Chemetco failed to provide sufficient evidence to demonstrate that Section

720.131(c) applies, nor has it provided all of the information that section requires. The Board

therefore must deny Chemetco’s petition for an adjusted standard.

PROCEDURAL HISTORY

Overview

Chemetco filed its petition on August 9, 1996. IEPA filed a response and an amended

response, to which Chemetco filed replies.

In its amended response, IEPA recommended that

the Board deny Chemetco’s request under Section 720.131(c), but grant the request under

Section 720.131(a) with a number of conditions. IEPA Am. Resp. at 21-22.

Chief Hearing Officer Michael Wallace held a hearing on March 11, 1997. Both

parties filed post-hearing briefs, and Chemetco also moved to supplement the record after the

hearing.

In response to Chemetco’s motion to supplement the record, the Board ordered another

hearing. See Petition of Chemetco, Inc. for an Adjusted Standard From 35 Ill. Adm. Code

720.131(a) and (c) (May 15, 1997), AS 97-2, slip op. at 2. The Board limited the subject of

the second hearing to the documents Chemetco sought to add to the record through its motion.

Chief Hearing Officer Michael Wallace held the second hearing on August 26, 1997.

Neither

party chose to file briefs after the second hearing.

IEPA’s Second Amended Response

On August 14, 1997, before the second hearing, IEPA filed a second amended

response. In its second amended response, IEPA changed its position on Chemetco’s request

under Section 720.131(a), and now recommends denial.

Chemetco filed a reply on August 22, 1997, stating in part that the Board should reject

IEPA’s second amended response. Reply at 3. The Board treats this portion of Chemetco’s

reply as a motion to strike IEPA’s second amended response. IEPA, treating the same portion

of Chemetco’s reply as a motion to strike, filed a response on August 25, 1997.

In its reply, Chemetco argues that IEPA’s second amended response violates 35 Ill.

Adm. Code 106.715 because IEPA filed it after the first hearing. Reply at 3. The Board

disagrees.

Section 106.715 provides in pertinent part:

Chemetco’s petition is cited as “Pet. at _.” IEPA’s initial response, filed on September 9,

1996, is cited as “IEPA Resp. at __.” Chemetco’s reply (filed September 19, 1996) to IEPA’s

response is cited as “ Chem. Reply at _.” IEPA’s amended response, filed January 28, 1997,

is cited as “IEPA Am. Resp. at _.”

The transcript of the March 11, 1997, hearing is cited as “Tr.1 at _;” the transcript of the

August 26, 1997, hearing is cited as “Tr.2 at _.” Chemetco’s hearing exhibits are cited as

“Chem. Exh. _;” IEPA’s hearing exhibits are cited as “IEPA Exh. _.”

The Agency may amend its response even if the petitioner has not

amended its petition. In such instance, a response may only be

amended prior to close of the hearing if a hearing is held . . . .

35 Ill. Adm. Code 106.715.

The Board’s procedural rules contemplate the possibility of having more than one hearing on

an adjusted standard. See 35 Ill. Adm. Code 106.415(a) (“The Board will hold at least one

public hearing prior to granting an adjusted standard.”) and 106.416(b) (“The Board will issue

such orders as the Board deems appropriate, including, but not limited to . . . directing that

further hearings be held.”) When that happens, as it did here, IEPA may amend its response

before the close of the final hearing. Accordingly, the Board denies Chemetco’s motion to

strike IEPA’s second amended response.

FINDINGS OF FACT

The Bunker and its Contents

Chemetco owns and operates a secondary metal smelter at Route 3 and Oldenberg Road

in Hartford, Madison County, Illinois. Tr.1 at 9; Chem. Exh. 14 at 2. Chemetco’s facility

includes a bunker that is approximately 365 feet by 310 feet. It is made of concrete and has

walls and a floor, but no roof. Tr.1 at 11, 83, 107, 117-118; Chem. Exh. 14 at 3-4.

The bunker contains three types of materials. First, the bunker contains approximately

30,000 to 40,000 tons of zinc oxide. Tr.1 at 10-11, 29-30, 114-115. Chemetco moved the

zinc oxide to the bunker in 1984 or 1985. Before then, Chemetco kept the material in an on-

site “pile . . . used to store and dry zinc oxide from the zinc oxide lagoons” at the facility.

The bunker stands at the location of the former zinc oxide pile. Tr.1 at 131; Chem. Exh. 14

at 2-5, 11, Fig. 2-2. No zinc oxide or other material has been added to the bunker since

September 1985. Tr.1 at 8, 11; Chem. Exh. 14 at 5.

Chemetco presented some evidence on how it currently generates zinc oxide (discussed

below at pages 4 and 5), but no evidence explaining how it generated the zinc oxide now in the

bunker. The record suggests that the process that Chemetco uses now is different than the

process it used when it generated the zinc oxide now in the bunker. See IEPA Resp.,

Attachment 5 at 36.

Chemetco presented test results for metals present in two samples of the bunker’s zinc

oxide. The average metals content in the two samples is as follows:

zinc

25.0%

lead

11.4%

copper

7.25%

iron

2.045%

tin

1.77%

nickel

0.325%

cadmium

0.28%

silver

0.236%

Tr.1 at 70; Chem. Exh. 9.

The second type of material that the bunker contains is “soil excavated during the

closure” of the former zinc oxide pile, as well as areas at the facility known as the “zinc oxide

lagoons” and the “cooling water canal.” Chemetco’s consultant’s report describes these three

areas as “hazardous waste management units,” but there is no evidence on the types of

hazardous wastes managed in these areas. Chem. Exh. 14 at 2-3, 5, Fig. 2-2. The amount of

soil in the bunker from these areas is something less than 40,000 tons. Chem. Exh. 14 at 3.

Chemetco provided no test results regarding the excavated soil itself. However, Chemetco

performed EP toxicity tests for lead and cadmium on soil samples from beneath the former

zinc oxide pile to determine how much soil to excavate. Chem. Exh. 14 at 4-5, 11, Fig. 2-3.

The third type of material that the bunker contains is an estimated 23,500 tons of slag.

Chem. Exh. 14 at 3, 5, 8. Chemetco presented no evidence on how it generated the slag.

Chemetco placed the slag over the other materials in the bunker to suppress emissions of dust

into the air. Tr.1 at 11, 82, 103; Chem. Exh. 14 at 7-8.

None of the zinc oxide has been removed from the bunker since being placed there.

Tr.1 at 126-127, 131; Chem. Exh. 14 at 3-5. According to the petition (Pet. at 2), the

material accumulated because the market for zinc oxide was very volatile in the 1980s, but the

Board finds that Chemetco presented no evidence to support this assertion.

Chemetco’s Current Operations

Chemetco would like to sell the zinc oxide in the bunker along with the zinc oxide that

it currently generates. Accordingly, a brief overview of Chemetco’s current operations is

necessary.

Chemetco currently employs approximately 150 people at the facility. Tr.1 at 65.

Chemetco receives various used, metal-bearing materials (number two copper, red brasses,

yellow brasses, radiators, industrial skimmings, and copper and tin fines). Using its furnaces,

Chemetco produces anode copper (an 825 pound mold of 99.2% pure copper) and crude solder

(a 10,000 to 15,000 pound mold of lead and tin) from these materials. The anode is

eventually processed into wire bar, copper wire, and copper bar, while the solder is sold to a

refiner to make pure lead and pure tin. Tr.1 at 9, 65-67; Chem. Exh. 1.

Chemetco has a device called a wet scrubber that uses water to capture air-borne

particulates from its smelting process. Chemetco generates approximately 900 to 1,000 tons of

zinc oxide each month from the wet scrubber. The average metals content in nine samples of

the zinc oxide from current operations is as follows:

zinc

28.308%

lead

15.746%

copper

7.378%

tin

2.774%

iron

1.343%

cadmium

0.371%

nickel

0.129%

silver

0.014%.

Tr.1 at 10, 24, 34, 47, 50, 67-68, 70; Chem Exh. 1, 5, 10.

From the wet scrubber, the zinc oxide is moved through settling ponds, settling cells,

and a filter press at the Chemetco facility, after which it is taken to an on-site building known

as the fines building. In the fines building, Chemetco mixes the zinc oxide with a generally

equal amount of “copper/tin fines,” which Chemetco purchases or receives for free.

The copper/tin fines have greater concentrations of certain metals than the zinc oxide,

but Chemetco did not provide a breakdown of metals concentrations specific to the copper/tin

fines. Chemetco adds the copper/tin fines to the zinc oxide to increase the content of certain

metals and thereby increase value. Tr.1 at 11, 32-34, 44, 72-74, 97-99; Tr.2 at 48-49; Chem.

Exh. 1, 5, 11, 18. This roughly 50/50 blend is referred to below as the “blended material.”

Information on the blended material’s metals concentrations is set forth in a shipping

document:

copper

22.8%

zinc

9.5%

iron

2.7%

nickel

0.5%

Tr.2 at 22, 63; Chem. Exh. 18.

Chemetco’s Proposed Removal of Materials from the Bunker

Chemetco would like to sell the bunker’s zinc oxide, along with its currently generated

zinc oxide, under the arrangements described below at pages 7 and 8. Tr.1 at 16-17, 34-35,

56-57, 128-131; Tr.2 at 28. Chemetco estimates that it would take approximately five to six

years to sell all of the zinc oxide in the bunker. Tr.1 at 16. Chemetco proposes to prepare the

bunker’s zinc oxide for shipment off-site by moving it through the existing equipment and

facilities used for its currently generated zinc oxide, with certain modifications. Tr.1 at 72-74,

77-78, 97-99.

Chemetco would add water to the bunker so as to create a slurry of the zinc oxide,

enabling it to be pumped out. Tr.1 at 100, 108-109; Chem. Exh. 14 at 5, 7. If necessary,

Chemetco would use heavy equipment to push the zinc oxide toward the pump. Tr.1 at 120-

121; Chem. Exh. 14 at 5, 7. The slurry would be pumped to the settling ponds, at which

point it would commingle with the currently generated zinc oxide. From there, the material

would move to the settling cells and then to two filter presses for dewatering. Tr.1 at 17, 72-

73, 79, 82-84, 94, 96, 98-99; Chem. Exh. 11, 14 at 5, 7.

The resulting zinc oxide “filter cake” would be loaded into dump pans for trucking to

the fines building, where it would be blended with copper/tin fines. The blended material

would be loaded into container trailers in the fines building for transport to barges. Tr.1 at

72-73, 88-89, 92, 99; Chem. Exh. 11, 14 at 7.

Because of the additional volume of zinc oxide, Chemetco would add one worker per

shift to operate the settling cells and filter presses, and use a second filter press that is at the

facility but currently not in full use. Tr.1 at 16-17, 73-74, 79, 92-94, 98-99. Chemetco

acknowledged that the settling ponds and settling cells are merely a means of getting the

bunker’s zinc oxide to the filter presses; the material could go directly from the bunker to a

filter press. However, there may not be enough room to set up a filter press next to the

bunker. Tr.1 at 77-79, 97.

Chemetco plans to segregate the bunker’s slag from the zinc oxide. The slag would be

removed from the bunker and placed with “the current slag production.” Tr.1 at 104-105;

Chem. Exh. 14 at 8. Chemetco does not plan to segregate the bunker’s excavated soil from

the zinc oxide. Instead, the soil would become part of the slurry and shipped off-site with the

zinc oxide. Tr.1 at 122-123.

The bunker’s zinc oxide, which is exposed to precipitation, has a moisture content of

approximately 45%. Water ponds in one corner of the bunker. Tr.1 at 83, 100, 117-118.

During the year before the first hearing, a liquid leaked out of a wall of the bunker into a

secondary containment area for the bunker. Tr.1 at 117, 119. Chemetco’s consultant testified

that the bunker was secure as of the first hearing, but no evidence was offered as to how the

leakage was repaired or what measures, if any, Chemetco had taken to prevent such leakage in

the future. Tr.1 at 124. In addition, Chemetco has not calculated whether the process of

removing zinc oxide from the bunker, which includes adding water to the bunker, would affect

the bunker’s structural integrity. Tr.1 at 117-118.

Chemetco had a 3,000 to 5,000 cubic yard “spill” of zinc oxide in September 1996

from a “former stormwater pipe.” Tr.1 at 118-119; Chem. Exh. 14 at App. 4. On cross-

examination, neither Chemetco’s environmental coordinator nor its consultant knew exactly

where the spill came from and neither could say that it did not come from the settling ponds.

Tr.1 at 94, 119. Chemetco offered no evidence on what measures, if any, it had taken to

prevent such a spill in the future.

Chemetco’s Arrangements to Sell Zinc Oxide

Chemetco had arrangements to sell the blended material to two overseas entities—

Elmet, S.L. (Elmet), of Spain, and Metabel B.V. (Metabel), of Holland.

Elmet Arrangement

The arrangement with Elmet was described as a one-year renewable agreement for up

to 3,000 metric tons

of the blended material per month. Tr.1 at 10-14, 20, 23, 25, 31-32,

53, 57; Tr.2 at 44, 59-60; Chem. Exh. 1, 5, 19. The arrangement was renewed for 1997 and

Elmet and Chemetco expected the arrangement to continue. Tr.2 at 9, 28, 39, 46; Chem.

Exh. 5, 19. In exchange for the blended material, Chemetco receives red brass, which is

valued at the market price set by the copper board in the United States. Tr.1 at 14-15, 32-33,

45, 59; Tr.2 at 41, 64-65; IEPA Exh. 5. The red brass is not produced from the blended

material. Tr.1 at 59; Tr.2 at 41. The blended material’s value is based on the respective

percentages of metals in the blended material and the market price for those metals set by the

London Metals Exchange. Tr.1 at 45-47, 64-65.

Chemetco and Elmet keep accounts on these transactions and Chemetco periodically

pays money to Elmet to make up for imbalances resulting from red brass being more valuable

than the blended material. Tr.1 at 15, 32-33; Tr.2 at 38, 46-47. Chemetco makes a profit on

the Elmet transactions. Tr.1 at 15-16, 64.

Chemetco’s zinc oxide transactions with Elmet date back to 1994. Chemetco has not

sold zinc oxide to anyone else since that time and, as of the first hearing, it was selling all of

its currently generated zinc oxide to Elmet. Tr.1 at 10, 12-13, 19-20, 24-25, 133; Tr.2 at 58-

59; Chem. Exh. 3, 4, 12; IEPA Exh. 2, 5.

The Board did not consider arrangements that were not finalized.

A metric ton equals 2,204.62 pounds.

Elmet acquires the blended material for three reasons. First, Elmet’s furnaces recover

metals from the blended material, including copper, tin, lead, gold, silver, palladium, and

platinum. Elmet recovers the metals in the form of black copper shots, which Elmet

apparently sells. Chemetco failed to provide evidence on whether or how much of each metal

in the blended material or in the zinc oxide itself is recovered. Chemetco maintained that the

silver and gold recovered by Elmet come solely from the zinc oxide, but Chemetco provided

no test results showing any gold present in its zinc oxide. Nor did it provide any test results

confirming that the blended material contains palladium or platinum. Second, in Chemetco’s

Exhibit 5, Elmet stated that “[z]inc metal when in contact with injected oxygen, in a certain

atmosphere,” provides extra heat to Elmet’s smelting process, which lowers its energy costs.

There was no evidence on how much heat the zinc contributes to this process. Third, the

blended material increases the zinc content of the oxides collected from Elmet’s filter, making

Elmet’s oxides more attractive to zinc producers. Tr.1 at 13, 30-31, 34; Tr.2 at 41-42; Chem.

Exh. 1, 5.

Metabel Arrangement

The arrangement with Metabel is to last from April 1, 1997 (

i.e.

, after the first

hearing) to March 31, 1998. This arrangement calls for Metabel to acquire 400 metric tons

per month of the blended material “for further refining.” Tr.1 at 18-19, 34-35, 53, 128-130;

Chem. Exh. 15. Chemetco provided no other information as to what Metabel will do with the

blended material. The document described as the Metabel agreement has a pricing provision

that appears to rely on the London Metals Exchange. Tr.1 at 18-19, 128-130; Chem. Exh. 15.

Chemetco provided no information on its expected profit, if any, from this arrangement.

DISCUSSION

Chemetco asks the Board to determine that zinc oxide in the bunker is not a solid waste

once Chemetco removes it from the bunker for recycling. Tr.1 at 104; Pet. at 6; Chem. Reply

at 2. 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 Subtitle C of RCRA

and the corresponding Illinois laws and regulations.

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

regulations.

In addition, materials that are not solid wastes, and therefore not hazardous wastes, are

not subject to the rules that apply to the recycling of hazardous wastes or the export of

hazardous wastes. See 35 Ill. Adm. Code 721.106, 722.Subpart E. Chemetco maintains that

RCRA means the Solid Waste Disposal Act, as amended by the Resource Conservation and

Recovery Act of 1976, as amended, 42 U.S.C. 6901

et seq.

See 35 Ill. Adm. Code 720.110.

without the requested determination, Chemetco will have to landfill the bunker’s zinc oxide

on-site.

Tr.1 at 16; Pet. at 1-2.

Chemetco seeks this determination under Section 720.131(a) and (c). Pet. at 1. Those

subsections provide standards and criteria for the Board to use in determining, on a case-by-

case basis, whether certain materials, that would otherwise be considered solid wastes, are not

solid wastes. See 35 Ill. Adm. Code 720.130; see also 35 Ill. Adm. Code 106.903(b). The

Board considers subsections (a) and (c) in turn.

Initially, we note that the Board regulations at issue are substantively identical to

regulations that USEPA promulgated under RCRA. We also note that the Board has never

before issued a final opinion and order interpreting the solid waste determination provisions of

Section 720.131(a) or (c). Accordingly, the Board from time to time refers to USEPA

guidance and preamble language interpreting the federal counterpart to the Board regulations at

issue.

Regulatory Framework: Section 720.131(a)

Section 720.131(a) reads in part as follows:

a) The Board will determine that those materials that are

accumulated speculatively without sufficient amounts being

recycled are not solid wastes if the applicant demonstrates that

sufficient amounts of the material will be recycled or transferred

for recycling in the following year. . . . 35 Ill Adm. Code

720.131(a).

It is important to note that the relief that Section 720.131(a) affords is available only

for those materials that have been “accumulated speculatively.” That term is defined in part as

follows:

A material is ‘accumulated speculatively’ if it is accumulated

before being recycled.

A material is not accumulated

speculatively, however, if the person accumulating it can show

that the material is potentially recyclable and has a feasible means

of being recycled; and that -- during the calendar year

(commencing on January 1) -- the amount of material that is

recycled, or transferred to a different site for recycling, equals at

least 75 percent by weight or volume of the amount of that

The Board notes that a determination that this zinc oxide is not a solid waste is not

necessarily a prerequisite to its recycling. For example, hazardous wastes may be recycled,

subject to the restrictions outlined in 35 Ill. Adm. Code 721.106.

“A material is ‘recycled’ if it is used, reused or reclaimed.” 35 Ill. Adm. Code

721.101(c)(7).

material accumulated at the beginning of the period. . . .

(Materials that are already defined as solid wastes also are not to

be included in making the calculation.) Materials are no longer

in this category once they are removed from accumulation for

recycling, however. 35 Ill. Adm. Code 721.101(c)(8).

The speculative accumulation provision allows USEPA “to regulate certain secondary

materials, intended for recycling, as solid wastes if the person claiming their waste was

excluded did not recycle sufficient quantities of these materials within a calendar year.”

RCRA Permit Policy Compendium, 9441.1993(08) (May 6, 1993, letter to William C. Rankin

from Sylvia K. Lowrance, Director, Office of Solid Waste, USEPA). In explaining the need

for the provision, USEPA noted “the large number of recycling damage cases where secondary

materials that were overaccumulated over time caused extensive harm.” 50 Fed. Reg. 614,

635 (Jan. 4, 1985).

It is also important to note that materials that are already defined as solid wastes do not

become solid wastes under this provision.

In other words, materials may become solid wastes

by being accumulated speculatively only if they are not otherwise solid wastes. As USEPA

explains:

[T]his provision applies to all spent materials, sludges, and by-

products not already defined as solid and hazardous wastes and

that are accumulated before any type of recycling. The provision

thus applies to secondary materials not otherwise considered to be

wastes when recycled . . . . Thus, if [certain] materials are

overaccumulated, they would be considered to be hazardous

wastes and would become subject to regulation . . . . The

provision does

not

apply to secondary materials that already are

wastes when they are recycled . . . . 50 Fed. Reg. 614, 635

(Jan. 4, 1985) (emphasis in original).

Therefore, the Board holds that a petitioner seeking the relief that Section 720.131(a)

provides must prove, as a threshold matter, that its material has become a solid waste only

because it has been accumulated speculatively, and not for some other reason. This requires

the Board to consider, as a threshold matter, how a material has become a solid waste.

The speculative accumulation provision “is not applicable to those materials already defined

as solid wastes . . . . This is evident in the definition of ‘accumulated speculatively’ . . .

which states that ‘ . . . (Materials that are already defined as solid wastes also are not to be

included in making the calculation.)’.” RCRA Permit Policy Compendium, 9497.1989(02)

(Oct. 19, 1989, letter to E.L. Williams, Jr., from Edwin F. Abrams, Chief, Review Section,

Office of Solid Waste and Emergency Response, USEPA.)

How Do Materials Become Solid Wastes?

To “determine if a secondary material is a RCRA solid waste when recycled, one must

examine both the material and the recycling activity involved.” 50 Fed. Reg. 614, 619 (Jan.

4, 1985). In doing so, the Board considers three factors.

See 35 Ill. Adm. Code

721.102(c). The first factor is which of several categories the material fits into: “spent

materials;” “sludges;” or “by-products.” See 35 Ill. Adm. Code 721.102(c) and

721.Appendix Z. Each of these terms is specifically defined, and whether a material is, for

example, a “spent material” or a “sludge” depends primarily on how it is generated. For

example, a “sludge” is “any solid, semi-solid or liquid waste generated from a municipal,

commercial or industrial wastewater treatment plant, water supply treatment plant or air

pollution control facility exclusive of the treated effluent from a wastewater treatment plant.”

See 35 Ill. Adm. Code 721.101(c)(2) (refers to 35 Ill. Adm. Code 720.110). However, an

extensive discussion of the definitions of these terms is not necessary for our purposes.

The second factor is whether the material is an unlisted “characteristic” hazardous

waste or a “listed” hazardous waste. See 35 Ill. Adm. Code 721.102(c) and 721.Appendix Z.

Generally, 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.

The third factor that determines whether a material to be recycled is a solid waste is the

recycling activity involved—

i.e.

, whether the material will be “used in a manner constituting

disposal,” “burned for energy recovery,” or “reclaimed,” or whether the material is

“accumulated speculatively” before being recycled. See 35 Ill. Adm. Code 721.102(c) and

721.Appendix Z.

In some cases, the regulations require the Board to consider other factors. Section

721.102(d) provides that specified materials are solid wastes when recycled in any manner.

See 35 Ill. Adm. Code 721.102(d). Section 721.102(e) provides that materials are not solid

wastes when recycled in specified ways. See 35 Ill. Adm. Code 721.102(e). However, the

record does not indicate that these provisions are relevant here.

“Spent material,” “sludge,” and “by-product” are defined at 35 Ill. Adm. Code

721.101(c)(1), (2), and (3), respectively. There are other categories of materials, but the

record does not indicate that they are relevant in this case.

The definition of “solid waste” applies only to materials that are also “hazardous waste” for

purposes of the regulations implementing Subtitle C of RCRA. See 35 Ill. Adm. Code

721.101(b)(1). As USEPA explained, “[a]lthough hazardous wastes are a subset of solid

wastes under RCRA, [USEPA’s] regulatory authority under Subtitle C applies only to

hazardous wastes. Since the present regulations apply only to Subtitle C, we have chosen to

make the definition of solid waste applicable to those materials that also are hazardous

wastes.” 50 Fed. Reg. 614, 616, n. 3 (Jan. 4, 1985).

These factors, when considered together, determine whether and how a material

becomes a solid waste. (The relationship between these factors is set forth in Section

721.102(c) and Appendix Z to Part 721. A portion of Appendix Z is attached as Attachment

1.) Whether and how a material becomes a solid waste in turn determines whether Section

720.131(a) applies. This is illustrated by the following three examples:

Example 1—A sludge is listed as a hazardous waste in Section

721.131 or 721.132 and it will be reclaimed. Under Section

721.101(c)(3) and Appendix Z to Part 721, this material is a

solid waste.

It has become a solid waste for a reason other than

speculative accumulation. Therefore, Section 720.131(a) does

not apply.

Example 2—A by-product is not listed in Section 721.131 or

721.132 but it exhibits a characteristic of hazardous waste, and it

will be burned for energy recovery. Under Section 721.101(c)(2)

and Appendix Z, this material is a solid waste. It has become a

solid waste for a reason other than speculative accumulation.

Therefore, Section 720.131(a) does not apply.

Example 3—A by-product is not listed in Section 721.131 or

721.132 but it exhibits a characteristic of hazardous waste, and it

will be reclaimed. Although this is the same material considered

in second example, it is not a solid waste because it will be

reclaimed instead of burned for energy recovery. See 35 Ill.

Adm. Code 721.102(c)(3); see also Attachment 1 and 50 Fed.

Reg. 614, 619 (Jan. 4, 1985) (same material’s status as a waste

or not can vary depending on how it is to be recycled). If this

material is accumulated speculatively before being reclaimed, it

would become a solid waste because of the speculative

accumulation provision (and most importantly, only because of

the speculative accumulation provision). Thus, in this example,

the relief that Section 720.131(a) provides would be available.

Does Section 720.131(a) Apply Here?

In order to determine whether Chemetco is eligible for the relief that Section

720.131(a) provides, therefore, it is Chemetco’s burden to prove that the bunker’s zinc oxide

became a solid waste only because it was accumulated speculatively. See 35 Ill. Adm. Code

“[T]he determination of whether or not a material being reclaimed is a solid waste is made at

the point of generation. . . . The recycling activity is viewed prospectively; that is, the status

of certain secondary materials is determined by knowing how the material is going to be

recycled.” RCRA Permit Policy Compendium, 9441.1993(08) (May 6, 1993, letter to

William C. Rankin from Sylvia K. Lowrance, Director, Office of Solid Waste, USEPA).

106.808 and 720.133. As discussed, that question depends on: (1) which of the categories of

material the zinc oxide in the bunker fits into (

i.e.

, is it a spent material, a sludge, etc.); (2)

whether the material is characteristic or listed hazardous waste; and (3) how it will be recycled

(

i.e.

, by reclamation, burning for energy recovery, etc.). These factors are considered below.

Is the Zinc Oxide in the Bunker a Spent Material, a Sludge, or a By-product?

While one consultant’s report refers to the zinc oxide in the bunker as “sludge,”

Chemetco provided no evidence on how the material was generated. Chem. Exh. 6.

Chemetco, at best, implies that the bunker’s zinc oxide came from the same source as its

currently generated zinc oxide, the wet scrubber. Tr.1 at 10-11. This does not satisfy

Chemetco’s burden. As a result, there is insufficient evidence for the Board to decide if the

bunker’s zinc oxide is a “spent material,” a “sludge,” or a “by-product.”

Is the Zinc Oxide in the Bunker a Characteristic or Listed Hazardous Waste?

Even if there was sufficient evidence for the Board to find that the material is a sludge

or a by-product, Chemetco failed to provide enough evidence to establish whether the material

is a characteristic or listed hazardous waste. As is evident from Section 721.101(c) and

Appendix Z to Part 721, this information can determine whether a material to be recycled is or

is not a solid waste.

The only evidence potentially addressing whether the material exhibits a characteristic

of hazardous waste is one sentence in a consultant’s report stating that “[t]esting has shown the

zinc oxide, which is being sold . . ., to be extraction procedure toxic for lead.” Chem. Exh.

14 at 3. This is not enough. Not only is it unclear whether this sentence refers to the bunker’s

zinc oxide, but Chemetco provided no other information on the test method and no test

results.

Furthermore, IEPA stated in its Second Amended Response that the bunker’s zinc

oxide may be a listed hazardous waste—K069 “Emission control dust/sludge from secondary

lead smelting” at 35 Ill. Adm. Code 721.132. IEPA Am. Resp. at 2. Chemetco provided no

evidence responsive to this.

Further questions on how to categorize the material are raised by the presence in the

bunker of soil that Chemetco proposes to ship off-site with the zinc oxide. The soil may be

contaminated with hazardous waste because it was excavated from several areas described as

“hazardous waste management units.”

Chemetco provided no test results of this soil and we

do not know what types of hazardous wastes may have been managed in these areas. This

information could determine whether the bunker’s zinc oxide is a characteristic or listed

hazardous waste. Chemetco failed to address this issue.

How will the Zinc Oxide in the Bunker be Recycled?

In testing for the hazardous waste characteristic of toxicity, the “extraction procedure” may

refer to the EP toxicity test or the Toxicity Characteristics Leaching Procedure (TCLP). The

TCLP test replaced the EP toxicity test. See 35 Ill. Adm. Code 721.124.

“Hazardous waste management unit” is defined at 35 Ill. Adm. Code 720.110.

Likewise, Chemetco failed to provide sufficient evidence to establish that the bunker’s

zinc oxide will be recycled in such a way that Section 720.131(a) may apply. We know that

Elmet recovers metals from the blended material in the form of black copper shots, which

Elmet apparently sells. This could be reclamation.

Yet we do not know whether or how

much of each metal in the zinc oxide is recovered. Chemetco also maintained that the silver

and gold Elmet recovers come from the currently generated zinc oxide and not from the

copper/tin fines. But Chemetco provided no test results showing any gold present in the

currently generated zinc oxide (or the bunker’s zinc oxide). Chemetco also did not prove that

neither gold nor silver are present in the copper/tin fines.

Moreover, Elmet acquires the blended material for another reason as well—because its

zinc content gives Elmet’s smelting process extra heat, which lowers Elmet’s energy costs.

This could be burning for energy recovery. While we do not know how much heat the zinc

contributes to the process, test results show that zinc is the predominant metal in both the

currently generated zinc oxide and the bunker’s zinc oxide. USEPA states that where a facility

burns an unlisted, characteristic by-product to recover both energy and materials, it is burning

for energy recovery, not reclaiming—that is, the facility “is considered to be burning a

hazardous waste, even though the waste is an unlisted by-product, and even though there is

some material recovery.” 50 Fed. Reg. 614, 631 (Jan. 4, 1985).

As for what Metabel will do with the blended material, we only know that it is

acquiring it “for further refining.” This is not enough information for the Board to determine

how the blended material will be recycled.

In summary, the Board finds that Chemetco has not shown that the relief provided by

Section 720.131(a) is available. The Board emphasizes that it is not holding that the zinc

oxide in the bunker is or is not solid waste; rather, Chemetco simply has not established that

Section 720.131(a) applies here.

“A material is ‘reclaimed’ if it is 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).

Chemetco’s request for relief also does not easily fit within Section 720.131(a) because

Chemetco has requested that the Board’s determination attach only when the zinc oxide is

removed from the bunker. Under Section 720.131(a), that determination would attach to the

zinc oxide while in the bunker, not upon its removal. Furthermore, the parties did not address

whether the term “the following year,” which is used twice in Section 720.131(a), limits when

persons may seek relief under that section. Given the Board’s ruling, however, these issues

are not material at this time.

Section 720.131(a) Factors

The Board also finds that Chemetco did not provide all of the information that the

Section 720.131(a) factors require. These factors are discussed in turn below.

Section 720.131(a)(1): The manner in which the material is expected to be recycled, when the

material is expected to be recycled, and whether this expected disposition is likely to occur (for

example, because of past practice, market factors, the nature of the material or contractual

arrangements for recycling).

As discussed above at page 14, Chemetco has not provided the Board with adequate

information on how the material is “expected to be recycled.” In addition, there is also

considerable uncertainty as to whether and when the bunker’s zinc oxide would be recycled.

Chemetco had been shipping the blended material to Elmet for several years and there was

evidence that Elmet and Chemetco expected the arrangement to continue. Nevertheless, the

arrangement was for only one year at a time and Chemetco estimated that it would take

approximately five to six years to sell the bunker’s zinc oxide while continuing to sell the zinc

oxide it currently generates. In fact, on this record, the only actual arrangements Chemetco

had to sell the blended material were to last until the end of 1997 (Elmet) or until the end of

March 1998 (Metabel). Moreover, we do not know what impact the soil in the bunker may

have on the likelihood that the bunker’s zinc oxide will be recycled, or on the timing of its

recycling.

The Board finds that Chemetco did not provide all of the information that Section

720.131(a)(1) requires.

Section 720.131(a)(2): The reason that the applicant has accumulated the material for one or

more years without recycling 75 percent of the volume accumulated at the beginning of the

year.

Chemetco stated that it accumulated the zinc oxide in the bunker because the market for

the material was very volatile in the 1980s. Chemetco made this statement in its petition and

introduced no evidence at hearing to support it. This is insufficient to meet Chemetco’s

burden under Section 720.131(a)(2).

Section 720.131(a)(3): The quantity of material already accumulated and the quantity

expected to be generated and accumulated before the material is recycled.

Although we do not know how it was generated, the evidence shows that there is

approximately 30,000 to 40,000 tons of zinc oxide in the bunker. Chemetco established the

quantity of zinc oxide that it currently generates from its wet scrubber (approximately 900 to

1,000 tons per month). Chemetco proposes to handle these materials together once they enter

the settling ponds.

The Board cannot say, however, how much material is expected to be generated and

accumulated “before the material is recycled.” To answer this, we would need to know

whether and when the material would be recycled. As noted above in the discussion of the

first factor, there is much uncertainty on this point, even assuming that Chemetco’s rate of

generating zinc oxide would not increase. The Board finds that Chemetco has not met its

burden under Section 720.131(a)(3).

Section 720.131(a)(4): The extent to which the material is handled to minimize loss.

Chemetco stated that it would add water to the zinc oxide before removing it from the

bunker. Although this measure should minimize air emissions while the material remains

moist, Chemetco failed to provide information on how other losses, such as spills, would be

minimized. For example, Chemetco has not calculated whether adding water to the bunker or

other removal activities would affect the bunker’s structural integrity. We also know that a

bunker wall had recently leaked. In addition, Chemetco had a large spill of zinc oxide in

September 1996, yet neither Chemetco’s environmental coordinator nor its consultant knew

exactly where the spill came from and neither could say that it did not come from the settling

ponds Chemetco proposes to use for handling the bunker’s zinc oxide. Chemetco offered no

evidence on what measures, if any, it had taken to prevent such leakage and spillage in the

future.

The Board finds that Chemetco failed to provide all of the information that Section

720.131(a)(4) requires.

Section 720.131(a)(5): Other relevant factors.

Given the absence of evidence on the first four factors, the Board does not consider it

appropriate to determine whether other factors are relevant.

In summary, the Board finds that Chemetco did not provide sufficient information

under Section 720.131(a)(1), (2), (3), or (4).

Section 720.131(c) Materials That Have Been Reclaimed But Must Be Reclaimed Further

Before Recovery Is Completed

Section 720.131(c) reads in part as follows:

c) 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). . . .

35 Ill. Adm. Code 720.131(c).

To be eligible for this provision, the material must have been initially reclaimed but

require further reclaiming before recovery is completed. The definition of when a material is

“reclaimed” is set forth above in footnote 15. USEPA explains that a material is reclaimed if

(1) “material values . . . are recovered as an end-product of a process (as in metal recovery

from secondary materials),” or (2) it is “processed to remove contaminants,” thereby restoring

the material to its “usable original condition.” 50 Fed. Reg. 614, 633 (Jan. 4, 1985).

A waste being reclaimed remains a waste until reclamation is completed. Reclamation

is not completed until the end-product of the process is recovered. A non-solid waste

determination under Section 720.131(c) applies only

to wastes after they have been initially

reclaimed. See 50 Fed. Reg. 614, 620, 633-634, 655 (Jan. 4, 1985). In discussing its federal

counterpart, USEPA explains that the provision is designed to address those situations where

“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 cannot find that Section 720.131(c) applies because there is insufficient

evidence to prove that the bunker’s zinc oxide has been initially reclaimed. In addition,

Chemetco failed to provide all of the information that the Section 720.131(c) factors require.

Those factors read as follows:

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;

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

Under the first factor, Chemetco presented no evidence on what processing the material

has undergone. As USEPA states, 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).

Without information on this initial processing, the Board is not in a position to assess how

substantial it was. As discussed above, Chemetco has not fully explained the additional

processing that the material would undergo. Chemetco presented no evidence on the third

factor. As for the fourth factor, the same deficiencies pointed out above in the discussion of

the first factor under Section 720.131(a) are deficiencies here as well. Similarly, Chemetco

failed to address adequately the fifth factor under Section 720.131(c) for the same reasons it

failed to address adequately the fourth factor under Section 720.131(a), discussed above.

In summary, the Board finds that by failing to establish that the zinc oxide in the

bunker has been initially reclaimed, Chemetco has not shown that the relief provided by

Section 720.131(c) is available. The Board also finds that Chemetco failed to present all of the

information that section requires.

CONCLUSION

The Board finds that the evidence fails to demonstrate that Section 720.131(a) applies

here. Specifically, Chemetco has not shown that the zinc oxide in the bunker is a solid waste

only because it has been accumulated speculatively. In addition, the Board cannot find that

Section 720.131(c) applies because the evidence does not establish that the zinc oxide has been

initially reclaimed. Chemetco also failed to present all of the information required by Section

720.131(a) and (c). The Board therefore denies Chemetco’s request. The Board emphasizes,

however, that Chemetco may file another adjusted standard petition to provide the evidence

necessary to support the non-solid waste determination it seeks.

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

matter. This case is dismissed and the docket is closed.

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 19th day of March 1998, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

ATTACHMENT 1

Table

Spent materials

Yes

Sludges (listed in Section 721.131

or 721.132)

Yes

Sludges exhibiting a characteristic

of hazardous waste

Yes

By-products (listed in Section

721.131 or 721.132)

Yes

By-products exhibiting a

characteristic of hazardous waste

Yes

* * *

Yes - Defined as a solid waste

No - Not defined as a solid waste

*1 - Use constituting disposal (Section 721.102(c)(1))

*2 - Burning for energy recovery or use to produce a fuel (Section 721.102(c)(2))

*3 - Reclamation (Section 721.102(c)(3))

*4 - Speculative accumulation (Section 721.102(c)(4))

35 Ill. Adm. Code 721.Appendix Z.