BEFORE THI
)
)
)
)
‘TROL
BOARD
CLERKS OFFICED
FEB
102005
AS 04-02
STATE OF ILLINOIS
(Adjusted
Standard
—
Larfd~h1Utl0h1Control board
IN
THE
MATTER OF:
PETITION
OF JO’LYN CORPORATION
and FALCON WASTE AND RECYCLING,
INC. for an ADJUSTED STANDARD from
portions of 35 IlI.Adm.Code
807.103 and
35
III.Adm.Code 810.103, or
in the
alternative, A FINDING OF
INAPPLICABILITY.
NOTICE OF FILING
To:
(See attached Service
List.)
PLEASE TAKE
NOTICE
that on this
10th day of
February 2005,
the
following were
filed
with
the
Illinois
Pollution
Control
Board:
Petitioners’
Reply
and
Petitioners’
Renewed
Motion for Expedited
Decision,
attached and herewith
served
upon you.
JO’LYN CORPORATION
and
FALCON WASTE AND RECYCLING,
INC.
By:_________
ttorney for Petitio
ers
Elizabeth
S.
Harvey
SWANSON, MARTIN
& BELL,
LLP
One IBM
Plaza, Suite 3300
330 North Wabash Avenue
Chicago,
Illinois
60611
Telephone:
(312) 321-9100
Firm
ID.
No.
29558
CERTIFICATE OF
SERVICE
I, the
undersigned non-attorney, state that
I served
a copies of the above-described
documents to
counsel of record
in
the above-captioned
matter via U.S. Mail at One
IBM
Plaza, Chicago,
IL 60611
on or
before 5:00 p.m.
on February
10, 2005.
(~p’a?rette
M.
Podlin
x
Under penalties
as provided
by law
pursuant to
735 ILCS 5/1-1 09,
I
certify
that
the statements set forth
herein
are true and correct.
)
)
)
~ll
AS
04-02
(Adjusted Standard
—
Land)
RECE WED
CLERK’S OFFICE
FEB
102005
STATE OF ILLINOIS
Pollution Control Board
Mr. John
J.
Kim
Division of Legal
Counsel, IEPA
1021
North Grand Avenue
East
P.O.
Box
19276
Springfield,
IL 62794-9276
Bradley
P. Halloran
Hearing Officer
Illinois
Pollution
Control Board
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
6332-002
RECEIVED
CLERK’9 OFFICE
BOARD
FEB
102005
STATE OF
ILLINOIS
Pollution
Control Board
BEFORE THE
ILLII
IN THE
MATTER OF:
)
PETITION
OF JO’LYN CORPORATION
)
and
FALCON WASTE AND RECYCLING,
)
AS 04-02
INC. for an ADJUSTED STANDARD from
)
(Adjusted Standard
—
Land)
portions of 35 lll.Adm.Code 807.103 and
)
35
IlI.Adm.Code 810.103, or in the
)
alternative, A FINDING OF
)
INAPPLICABILITY.
)
RENEWED
MOTION
FOR EXPEDITED DECISION
Petitioners
Jo’Lyn
Corporation
and
Falcon
Waste
and
Recycling,
Inc.,
by their
attorneys Swanson,
Martin
&
Bell, hereby renew their
motion
for expedited
decision
of
their petition for adjusted standard or,
in
the alternative, for
a finding of inapplicability:
1.
Petitioners
and the Agency
have filed
several
pleadings with
the
Board
in
this
matter.
A
hearing
was
held
on
December
22,
2004.
Petitioners
have filed
their
post-hearing
brief, the Agency has responded,
and petitioners have filed
a
reply.
Thus,
the
record is ready for the
Board’s consideration.
2.
As
previously
noted,
application
of
petitioners’
paving
product
to
the
surface requires compaction and the
heat of the
sun.
3.
Petitioners’
business
is,
by its
nature,
a
seasonal
business.
For optimal
results, the process
needs
the
heat of the
sun to
set the
paving.
Petitioners are
small
businesses which need to operate
in order to survive.
4.
Petitioners respectfully renew their previous
motion for expedited decision,
and
request that the
Board
reach
a determination
on this matter as soon as possible to
allow petitioners to
begin
operations
as
soon
as
weather
permits.
Petitioners
seek
a
decision at the Board’s March
17, 2005 meeting, if possible.
WHEREFORE,
petitioners respectfully ask this
Board
to
act upon
its
petition
as
soon as possible.
Respecifully submitted,
JO’LYN CORPORATION and FALCON
WASTE AND RECYCLING, INC.
~
Michael J.
Maher
Elizabeth S. Harvey
Swanson,
Martin & Bell,
LLP
One IBM
Plaza,
Suite 3300
330
North Wabash Avenue
Chicago,
IL 60611
Telephone:
(312) 321-9100
Facsimile:
(312) 321-0990
Ihl~
H ~
LX
BEFORE
~
~
CONTROL BOARDFEB
102005
IN
THE
MATTER OF:
)
STATE OF ILLINOIS
)
PollutIon Control Board
PETITION OF JO’LYN CORPORATION
)
and FALCON WASTE AND RECYCLING,
)
AS 04-02
INC. for an ADJUSTED STANDARD from
)
(Adjusted Standard
—
Land)
portions of 35
lll.Adm.Code 807.103 and
)
35 Ill.Adm.Code 810.103, or in
the
)
alternative, A FINDING OF
)
INAPPLICABILITY.
)
PETITIONERS’ REPLY
Petitioners Jo’Lyn
Corporation
(“Jo’Lyn”)
and
Falcon Waste
and
Recycling,
Inc.
(“Falcon”)
(collectively,
“petitioners”),
by their attorneys Swanson,
Martin
& Bell,
hereby
submit their
reply
to
the
Illinois
Environmental
Protection
Agency’s
(Agency)
response
to
petitioners’ post-hearing
brief.
INTRODUCTION
Petitioners
are
disappointed
in
and
puzzled
by
the
Agency’s
continuing
opposition
to
petitioners’
quest
for
approval
to
operate
their
business.
Despite
the
submission
of
a
great deal of information,
and
petitioners’
continuing offers
to
answer
any questions the Agency has, the Agency has chosen to continue
its
opposition.
Most
telling,
the Agency has failed
to identify
a single
environmental
concern
in
its
response.
Instead,
it
submits
eleven
pages
of
irrelevant
claims,
without
providing
a
single
persuasive reason for
its refusal to support petitioners’ request for an adjusted standard.
Once
again,
petitioners question whether
the
Agency has
lost sight of the
Act’s
basic
purpose:
protecting
the environment.
The Act specifically states
that one of its
purposes
is
to
conserve
natural
resources
by encouraging
recycling
and
reuse.
(415
ILCS 5/20(b).)
Petitioners recognize
that the Agency
must consider the
environmental
consequences, if any, of a
recycling
process.
However, the Agency has
not identified
a
single environmental concern or problem with
petitioners’ process.
Instead,
the Agency
has focused
on
such
minutia
as whether
petitioners’
operating
manual will
have
to
be
revised to
reflect a different method of learning when there
is sufficient GBSM for
a
pick
up at the supplier.
Petitioners join the comments made by Mr. Turley, executive director
of the
Construction
Materials
Recycling Association,
at
hearing,
and
ask the
Board to
help the Agency move into the
21st
century in the
area of GBSM recycling.
(Tr. at
175.)
GBSM
IS
NOT A WASTE
Petitioners have demonstrated
that the
GBSM
is
not
a waste.
Petitioners
have
pointed
to
the Agency’s
May
1993
solid waste determination,
finding
that GBSM
produced
by IKO
Chicago
is not
a waste when
used
as
a
paving
product.1
The Agency
now
contends
that
the
May
1993
letter
is
applicable
only
to
IKO.
The
Agency
is
incorrect.
There
is
nothing
in
the
letter that states
that the
letter is
applicable
only to
IKO:
in fact, the letter specifically refers to the use of GBSM
“either on site or at the
end
user’s site.”
(May
1993
letter,
paragraph
2
(emphasis added).)
The
Agency’s
letter
clearly contemplates that the
GBSM
could
be
used
at
another
user’s (other than
IKO)
site.
That
is
exactly what it proposed
here:
using the
GBSM,
in
the manner outlined by
the Agency in
1993, as a paving product at a site other than
lKO’s facility.
The
Agency’s
May 1993
letter specifically refers to
use of the
GBSM
by others.
Furthermore,
nowhere does
the
letter state
that the determination
is
applicable
only to
IKO.
Thus,
the
plain
language
of the
letter
supports
a
finding
that
the
letter
is
not
applicable
only to IKO,
but
is indeed
applicable
to
a
user who uses GBSM
from
IKO
in
1
That
May
1993 letter has
been
previously
put into the
record
as
Exhibit
D
to petitioners’
request
for adjusted standard, and as Exhibit 5
at hearing.
For the Board’s convenience, an additional
copy of the
letter
is attached to this reply, as
Exhibit 0.
2
the
manner laid
out
in
the
letter.
When
interpreting
a document,
the
plain
language of
that document
is controlling.
The
plain language of the letter, with
its
reference to
use
at an “end
user’s site,” demonstrates that the letter is not limited to IKO.
However, even
if
the
Board
disagrees
that
the
language
of
the
letter
is
clear,
the
letter
must
be
interpreted
against
the Agency.
Where there
is
an
ambiguity about
the
meaning of
a
document,
the
document
is
construed
against
the
party who
drafted
the
document.
Central Illinois Light Company v. Home Insurance Company,
No. 96978,
2004
III. LEXIS
2033,
*16
(December
4,
2004).
Here,
the
Agency
drafted
the
document,
so
the
document
is construed
against the Agency’s
interpretation.
The May 1993
letter is
not
limited to
IKO.
The
Agency’s
response
implies
that
there
is
something
improper
about
petitioners’
reliance
upon
the
May
1993
letter.
Petitioners
reject
any
suggestion
that
there
is
anything
inappropriate
about their reliance
upon
a letter drafted and
issued
by
the Agency,
applicable to the very GBSM
petitioners use in their process.
If anything,
it
is
inappropriate
for
the
Agency
to
repudiate
its
own
determination
by
attempting
to
convince the Board that the letter is
not “transferable.”
Petitioners
have further demonstrated
that the
GBSM
is
not
a waste,
because
it
does
not fit the statutory and
regulatory definition of waste.
Petitioners’ interpretation of
the
definition of waste is supported
by the
Illinois
Supreme Court and the appellate court
decisions
in
Alternate
Fuels,
Inc.
v.
Director of the
Illinois
Environmental
Protection
Agency,
No. 96071, 2004
III. LEXIS 1616 (October21, 2004)(”AFl’~.Petitioners and the
Agency
have
noted
that there
is currently
a
petition for
rehearing,
filed
by the Agency,
3
pending
before
the
Illinois
Supreme
Court.2
The
Agency
asserts
that
the
appellate
court’s decision
in
AFI
is distinguishable from
the
instant
case,
but does
not specifically
address the
merits of the supreme court decision.
Instead, the Agency asserts:
Without seeing what the
court’s final order
is
in
that case,
the
Illinois
EPA
is
in
the difficult position of either not being able to further distinguish what
may
be
the
court’s
final
order, or cite
to
a
new
order that
may
be
more
clearly
supportive of (or
not
inconsistent
with)
the
Illinois
EPA’s
position
articulate
here.
Similarly,
the
Board
may
want
to
consider
how
much
reliance
it
wishes
to
place
on
a
decision
that
could
be
modified
or
reversed.
(Agency response,
p. 3, footnote 1.)
The Agency’s
comments
are disturbing
for two
reasons.
First, the
reference to
“being
able
to
further
distinguish”
or
refer to
a
theoretical
new
opinion that
is
“more
clearly supportive”
of the
Agency’s
position
is
uncomfortably close to
a
statement that
the Agency
refuses to
recognize the
ruling of the highest court
in
the
state.
It appears
as though
the Agency will take
any possible
action
to avoid
recognizing that materials
which
are
not discarded
(the
GBSM
in
this
case,
and
the
plastic
materials
in
AFI)
are
not
“waste,”
despite
direction
from
both
the
supreme
and
appellate
courts.
Such
a
position
is reminiscent,
in fact, of the Agency’s behavior in
AFI.
Despite the fact that the
Board
itself
had
already
determined
that
the
plastic
material
used
by AFI
was
not
a
“waste” (see
Illinois Power Co.
v. Illinois Environmental Protection Agency,
PCB 97-35,
97-36
(January
23,
1997)),
the
Agency
refused
to
accept
that
determination
and
proceeded against AFI
in
contravention of the
Board’s
ruling.
The Agency’s statement
2
On
February
9,
2005,
petitioners’
counsel
was
informed
by
an
assistant
clerk at
the
Supreme
Court
that the
court
had
not
taken any
action
on
the
petition
for
rehearing
during
the
Court’s
January
term.
That January term
has
concluded.
According to the assistant clerk,
it is most likely that
the court
will not take any action
on the
petition until
the conclusion of the
court’s
March term
(late March or
early
April).
4
raises
concerns
that
the
Agency
will
refuse
to
accept
(and
implement)
the
Illinois
Supreme Court’s decision.
Second, the statement that the
Board may “wish to consider”
how much reliance
it should
place
on the
AFI
decision
sounds somewhat threatening
to the
Board.
There
is
no evidence
that the supreme court decision will
indeed
be
modified or reversed.
As
noted
in
petitioners’
post-hearing
brief,
the
supreme court’s
October
2004
decision
is
effective and states
the law
in
Illinois.
“The
filing of
a
petition
for rehearing does
not
alter the effective date
of the judgment of a reviewing court unless that court allows
the
petition for rehearing.”
PSL Realty Company
v.
Granite Investment Company,
86
Ill.2d
291, 427 N.E.2d 563,
570,
56
llI.Dec. 368 (1981).
See also Salsitz
v.
Kreiss,
198 Ill.2d
1,
761
N.E.2d
724,
734,
260
IlI.Dec.
541
(2001).
The
Board
should
follow the
law
in
Illinois,
as
stated
by the
Illinois
Supreme
Court
in
AFI,
and
find
that
GBSM
is
not
a
“waste.”3
REQUEST FOR ADJUSTED STANDARD
The
Agency
also
continues
to
object
to
petitioners’
request
for
an
adjusted
standard.
Although the Agency baldly states that there are
“serious
issues” that remain
unresolved, the Agency has failed
to specify
a single environmental concern
in
its reply.
Instead,
the
Agency
attempts
to
make
large
issues
out
of
small
concerns,
without
demonstrating
how those concerns have any environmental impact.4
To
do
otherwise
would
improperly
allow
the
Agency
(or
any
other
party
dissatisfied
with
a
supreme court decision)
to delay the
effect of the court’s opinion
simply by filing
a petition for
rehearing.
The
law,
as
stated
by the
supreme court,
is
that the
effective date
of
an
opinion
is
not
impacted
by the
filing
of a petition for rehearing.
PSL Realty Company,
427 N.E.2d at 570.
Additionally,
although
the
Agency
claims
(on
page
3
of
its
response)
that
there
is
missing
information
from
the
adjusted
standard
“checklist,”
the
Agency fails
to
identify any
missing
information
from
that
“checklist.”
Petitioners
have
provided
all
of
the
information
required
to
support an
adjusted
standard.
5
IDOT
standards for
recycled asphalt pavement (RAP)
The Agency
claims that there
is
somehow a problem with
the
adjusted
standard
because
Ms.
Powles
did
not
identify
or
discuss
Illinois
Department of
Transportation
(IDOT)
standards
applicable
to
recycled
asphalt
pavement
(RAP).
It
is
true
that
petitioners
have
not
discussed
IDOT’s
standards
for
RAP:
that
is
because
those
standards
are
not applicable
to
petitioners’
product,
Eclipse
Dust Control
(EDC).
The
question asked of Ms. Powles,
by a
member of the
Board’s technical staff, was whether
there are
any regulatory restrictions on
using
EDC
on
roadways.
Ms.
Powles properly
answered
“no.”
(Tr.
at
73.)
There
is
nothing
sinister
or
missing
from
Ms.
Powles’
answer:
she
was
asked
if
there are
restrictions on
EDC,
and
she
said that there are
not.
The IDOT
standards
referenced
by the Agency do not
apply to EDC:
the fact that
EDC shares some components with
RAP
does
not make the two
pavements the
same.
Petitioners are
aware that
IDOT
has standards
for
RAP,
but
have
not addressed those
standards
because
they
are
not
applicable
to
EDC.
IDOT
has
not
promulgated
any
standards or restrictions for EDC, nor has any other regulatory or technical entity.
The Agency states, without any support whatsoever,
“that
the petitioners
were
unaware of the
IDOT
road
standards
(or possibly knew of the standards
and
chose not
to acknowledge them)
is
in
and of itself problematic, and certainly warrants denial of the
adjusted standard.”
(Agency response,
p.
5,
footnote
4.)
Petitioners ask the
Board
to
strike that sentence of the Agency’s response, as lacking
any support and as improperly
implying
that
petitioners
had
a
reason
to
hide
the
IDOT
standards.
Petitioners
are
aware of the
IDOT road standards:
they simply aren’t applicable to EDC.
The attack on
petitioners’
motives
is
particularly
offensive.
The hearing officer specifically found that
6
all
witnesses
(including
Ms.
Powles)
were
credible.
(Tr.
at 184.)
There
is
no evidence
to support the Agency’s statement,
and it should be stricken.
It
is also
important to note that,
even
if there were
IDOT
standards
applicable to
EDC,
only
state-owned
roads
must
conform
to
IDOT
specifications.
Thus,
even
assuming (for the
sake
of argument only:
there
is
no
evidence of this) that EDC
could
not
be applied
to
state-owned
roads,
there are
thousands of miles of
roads
(including
township
roads),
as well as driveways
and
parking
lots,
which
are
not
subject
to
IDOT
standards.
Those
roads,
driveways,
and
parking
lots
are
appropriate
places
for
the
application of EDC.
Most
importantly,
the Agency
has
failed
to
provide
any
connection
between
its
speculation
about
IDOT
standards
for
another
paving
product
and
any
environmental
concern
about
EDC.
Simply
put,
there
is
no
environmental
concern.
The Agency’s
assertions should
be rejected.
The operating
manual
The
Agency
also
takes
issue
with
Ms.
Powles’
testimony
about
the
operating
manual.
Petitioners
submitted
the
operating
manual
as
a
written
record
of
the
procedures
petitioners follow
in
their
process, to
demonstrate
that
petitioners
operate
under
specific
procedures.
The
Agency’s
only
stated
concern
about
the
operating
manual
is
whether
the
manual
might
be
revised
if
petitioners worked
with
a
supplier
other than
IKO.
This concern
is simply irrelevant,
and
is not linked to any environmental
concern
or
issue.
It
is
common
practice
for
any
business
entity,
like
petitioners,
to
review their procedures to
be
more efficient and as experience
teaches
better ways to
perform their activities.
There
is
no
requirement
in
the
adjusted
standard
provisions
7
that the petitioner never improve their process, or that their operating manual be “frozen
in time.”
The fact that the
operating
manual
might be
revised to
reflect,
for
example,
an
additional or different
way for
petitioners to
know when there
is
enough
GBSM
to
pick
up
from
the
supplier
is
not
related
to
any
environmental
issue
or
concern
about
performance of the
EDC.
Petitioners currently use (or will
use, when
allowed to operate
again)
a
web-camera to
watch
the
box of
GBSM
tabs at the
IKO
facility.
Petitioners
could
just
as
easily
be
informed
by
phone
call,
facsimile,
e-mail
or
other
means
of
communication
that
there
was
sufficient
GBSM
for
a
pickup.
Such
a
change
would
have
literally
no
impact
on
any
environmental
or
product
performance
issues.
The
Agency is grasping at straws.
Use of additional
GBSM supplier
The
Agency
further
complains
that
petitioners
might,
in
the
future,
use
an
additional
supplier
of
GBSM,
but
that
petitioners
have
not
specifically
identified
the
potential
additional
supplier.
Again,
the
Agency
is
searching
desperately
for
some
argument to support their position.
Once
again, the Agency has identified
an irrelevant
issue.
Petitioners
have
not
yet
specifically
identified
an
additional
supplier
because
petitioners have
not
been
able to operate
due to the Agency’s
position
that GBSM
is
a
waste.
It
defies
logic,
and
good
business
practice,
to
assert
that
petitioners
should
approach
potential
suppliers
and
discuss a
business relationship
based only upon
“let’s
have
a
business
relationship
when
I
obtain,
sometime
in
the future,
approval
from
the
Pollution
Control
Board to
conduct my
business.”
More
importantly,
the
identity
of
a
8
potential
additional
supplier
is
irrelevant,
as
long
as
any
GBSM
obtained
from
an
additional
supplier complies
with
the
definition
of GBSM
contained
in
the
language of
the adjusted standard.5
Thickness of the
applied
EDC, and location in sun
The
Agency also
complains
about the thickness of the
applied
EDC,
and
about
the
performance of the
EDC in
a shaded area.
Both concerns are unfounded,
and have
no environmental consequence.
Petitioners
would
prefer
that
the
adjusted
standard
not
specify
a
particular
thickness
of
the
EDC,
to
allow
petitioners
to
continue
to
improve
their product.
The
Agency shows continuing confusion about the applicability of the May 1993 letter to the
adjusted standard.
Petitioners
have
pointed to the May
1993
letter as support for their
position that GBSM
is not a waste when
used
as
a
paving product.
The May 1993 letter
is
not
directly applicable to the
adjusted
standard
petition
itself.
(The May
1993
letter
has
been
offered
in
the
context of
demonstrating
that
GBSM
is
not
a
waste.
If the
Board finds that GBSM
is
not a waste,
no adjusted
standard is needed.)
Thus, there
is
no conflict
for petitioners to
seek,
in
the
context of an
adjusted
standard,
the
ability to
provide
flexibility
in
the
thickness
of the
paving
product.
However,
if
the
Agency
is
willing
to
concede
that
the
May
1993
letter
is
applicable
to
petitioners,
so
that
no
adjusted
standard
is
necessary,
petitioners
will
agree
to
comply
with
the
exact
parameters (including thickness) specified
in the May 1993
letter.
The Agency asserts that GBSM from
a supplier other than
IKO would need
a waste determination
similar to that issued to IKO in
May
1993, because the May 1993
letter was based
on specific information
from
IKO.
The Agency is confused about
the interplay of the adjusted standard and the May
1993
letter.
If the
Board grants the proposed adjusted standard, petitioners would
be able to use GBSM
which
meets
the
definition
in
the
adjusted
standard.
The
May
1993
waste
determination
would,
in
effect,
be
superseded
as
to
petitioners.
No waste
determination
would
be
required.
The Agency should
have
no
objection
to this, since it has taken the position that the May 1993 letter is not applicable to petitioners.
9
The
Agency
further
points
to
Ms.
Powles’
testimony
that
the
EDC
is
slightly
broken
in
the
shaded
portion
of
a
test
section.
However,
the
Agency
has
failed
to
connect the
slight wear
in
the
shaded
portion with
any environmental concern or other
legitimate
reason to deny the requested adjusted standard.
It
is
a
long stretch from
the
fact that
the
pavement
was
“slightly
broke
up”
(Tr.
at
95)
in
the
shaded
area
to
a
conclusion
that the
EDC
is
not
environmentally
sound
or
is
an
inappropriate
product.
Petitioners have
stated,
from the
beginning of this case, that they currently sell the
EDC
for application
in sunny areas.
As
part of their product development,
petitioners applied
one test section
that
had
a shaded
area.
Petitioners
believe that they
will
be
able to
develop EDC which can be used
in
shaded areas.
The adjusted standard should
not be
denied
simply because
petitioners are
continuing to
develop their
product.
Petitioners
will only sell
and install
EDC
in appropriate places where testing has demonstrated
that
the
EDC
will
wear
well.
This
makes
sense
from
a
business
perspective,
because
petitioners
have
no
incentive
to
sell
a
product which
does
not
satisfy
its
customers.
However,
petitioners should
have the flexibility to install the
EDC
in
shaded areas,
if and
when
such
installation
is
appropriate,
as
long
as
that
application
complies
with
the
requirements of the
proposed adjusted standard.
Issues addressed
in
petitioners’
post-hearing brief
The
Agency
then
tries to
attack
several
issues
addressed
in
petitioners’ post-
hearing
brief.
The
Agency’s
claims
share
a
common
thread:
they
reflect
no
environmental
concerns,
but
are
attempts
to
muddy
the
waters.
For
example,
the
Agency once
again
asserts
its
incorrect claim
that petitioners
(and
possibly
third-party
customers)
are
trying
to
fit
within
the
May
1993
letter.
Stated
one
more
time:
10
petitioners
believed,
and
continued to
believe,
that the
May
1993
letter demonstrates
that GBSM
is
not
a waste
when
used
as
a
paving
product.
However, the
May
1993
letter is
not
the
basis for petitioners’ adjusted standard
request.
Petitioners have
been
able to use some of the information developed
in connection with that May 1993 letter to
demonstrate
that
an
adjusted
standard
is
appropriate,
but
the
letter
itself
is
not
controlling
in
the context of an
adjusted standard.
The Agency
has confused the
issue
of “is
GBSM
a waste”
with
the
issue of “shall
an adjusted standard
be granted.”
Those
issues are not the same.
The
Agency has
completely
failed
to
respond,
in
a
meaningful
and
supportable
way, to the evidence
presented by petitioners on the extensive testing performed on the
IKO GBSM, on the experiences
in
other states6, and on the
beneficial uses of EDC.
All
of
the
testing
performed
on
the
GBSM
has
demonstrated
that
the
material
is
not
hazardous.
Other states
have
allowed the
use of GBSM as
a
paving product for
more
than
ten
years,
without
treating
the
GBSM
as
a
“waste.”
The
EDC
developed
by
petitioners
is
a
well-designed
paving
product which
holds
up
under
use,
and
has
no
environmental
drawbacks.
In
fact,
the
EDC
has
environmental
benefits
even
beyond
reusing
GBSM,
because
EDC
is
an
excellent
dust suppressant.
This
is
an
important
benefit,
given
the
ongoing
problems
with
particulate
emissions
in
northern
Illinois.
Petitioners urge
the
Board
to look
past the Agency’s
continued
spurious
and
irrelevant
attacks on petitioners and their process.
6
The section
of the
Agency response entitled
“experiences
in other
states”
is simply
an
attack on
Mr.
Foulkes’ testimony
that
IKO
has
been
forced
to
landfill
the
large
majority
of
its
GBSM
since
the
Agency
has
taken
the
position
that
the
May
1993
letter
is
not
applicable
to
third-parties.
It
is
very
surprising that
the Agency
does not
understand
that
IKO
has
been
forced
to
landfill
the
GBSM
only for
lack
of a market, which
has
resulted
from
the Agency’s
repudiation of
its
May
1993 letter.
The Agency
never addresses the
fact that
other
states
have
allowed
the
use of
GBSM
in
paving
products
for
more
than ten years.
11
CONCLUSION
Petitioners
are
left
with
the
belief
that
the Agency
has
lost
sight
of its
role:
to
protect
the
environment.
Instead
of
identifying
a
single
articulated
environmental
concern
with
the
use
of
GBSM
as
a
paving
product,
the
Agency
continues
to
raise
irrelevant
and
extraneous
claims
which
do
not
impact
either
the
environment
or
the
durability
or effectiveness of the
EDC.
The
public has demonstrated
its
support through
public
comments
and
attendance
at
hearing.
Not
a
single
member of the
public
has
expressed opposition or even
a
concern.
Petitioners have demonstrated that GBSM
is
not
a
“waste.”
In the alternative,
if the
Board finds that GBSM
is
a waste,
petitioners ask
the
Board
to
grant
the
requested
adjusted
standard,
based
upon
the
evidence
and
testimony submitted by petitioners.
Respectfully submitted,
JO’LYN CORPORATION and
FALCON WASTE AND RECYCLING,
INC.
By:(~e~)~
1/
Q~of its attorn?~
Michael J. Maher
Elizabeth
S.
Harvey
Swanson,
Martin & Bell,
LLP
One IBM
Plaza,
Suite 3300
330
North Wabash Avenue
Chicago,
IL 60611
Telephone:
(312) 321-9100
Facsimile:
(312) 321-0990
12
•
T
s&t~ofrflinoi~
ENWRONMENTALL PROTECTION AGENCY
Mary
A.
Ca~e~
Dize~ta~
~O0 ~ürthJfl
Road,S?A~e1d,IL
~22~•;-9276
217/524-3300
May
ia.
1993
IKO Chicago, In~~
Attn:
P.eynold
R.
Hagel
6600
3. Centr~lAvenue
Bedford
Park,
1.1.)
i
fbi
s
60538
Re: 0310125095
--
Cook
County
IKO
Chicago,
tnc.
Log
No.
3-147
State
Permit
F~ie
Sol Id Waste
Det~rrn5
n~tion
Granul ated
Bituminous
Shingl e Materi al
(GBSt~)
Dear
Nir.
Hagel
The
Agency has evaluated your
req-u,est for
a solid waste determination fo~
granulat~dbituminous
shingle
material
(~BSM)~generate~d
by
the
Redford
Park
-
facility
and
has
determined
that
it
is
n~t~
solid
wastc when ut’1i~edfor
~
•
following applications;
1.
GBSM
Shingle
Chips may be used to form
a pavement’ surface for unpaved~
rRt4dd.y~
soft,
or dusty roadways.
The Shingle chips shall
be applied ~t
sdfficjerit~thjckness (5-6”)
to
ensure
a
cohesiv~durable roadbed.
2.
GBSM
Ground Chips are divided into the following categories:
a,
Cour~ground chips
(1/a” x lJ2~1 to 5”
x 5”)
may b~
Used to form
a
pavement surface
for unpaved
roadways
(see
1.
above).
Also,
these
•
chips may be used to
form
a
p~vamen~
sub-base
material
far
road
c.onstru~tionprojects.
Once again,
the chips
should be applied at ~
•
•
suffici~rmtthickness
to
provide
a
stable
base
structure.
b.
fine ground chips
(1/2”
x
1/Zn)
may be used as an ingr~die~t
in h~
mix paving compounds
(hut mix asphalt)
Both
the
coarse ground chips
and thG fine ground
chipS may b~produced
•
(shredded)
either on-site or at the end user’s sites
but must be utiliz~~
•
in the manner(s)
described above.
While use of this material may be exempt From the permit requirerrents of 35
•
ill. Mm. Code Subtitle ~
Sect1or~807.Z01 such us~cannot violate
any other
•
•
provisions
of the Act
or’ the rul~sand regulations adopted thereunder.
Any
.n~terialn~tused
as described
above
is subject to thn regulations
as they
apply.
Also,
if at
any
time du?’lng
this period
the
p~ocesswh~ic~
g~nerates
•
•
this waste changes,
resampling and analysis must be
performed
ann
~Ubinitt~ii to
•
•
the Agency for reevaluation.
•
P&ge2
•
If
you
have
any
questions
regarding
this
information,
p1eas~contact
Scott
Hacke.
at
217/524-3267,
LWE:~f/4i5Y~
25-2.7
Very
trj.&~-~y
yours,
