RE CE
V ED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
72005
INTHE MATTER OF:
)
STATE
OF ~
RCRA SUBTITLE D UPDATE, USEPA
).
R 05-01
Pollution Control Board
REGULATIONS (January 1, 2004,
)
(Identical-in- Substance
Through June 30, 2004)
)
Rulemaking
—
Land)
NOTICE OF FILING
-
TO:
See Attached Certificate of Service
\,
Please take notice that on March
7,
2005, I filed with
the illinois Pollution
Control Board
an
original
and four copies of this
Notice of Filing
and the attached COMMENTS
OF ONYX
WASTE SERVICES, INC., copies ofwhich are attached hereto and hereby served upon you.
Dated:
March
7,
2005
ONYX WASTE SERVICES, INC.
By:
~&ttome~
Patricia F. Sharkey
Mayer, Brown, Rowe
&
Maw LLP
190
South LaSalle Street
Chicago, Illinois
60603-3441
(312) 782-0600
THIS DOCUMENT HAS B~NPRINTEDONRECYCLED PAPER
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy of the attached Notice of
Filing and COMMENTS OF ONYX WASTE SERVICES, INC. was served on
the persons listed
below by First Class, United States Mail, proper postage prepaid, on March 7, 2005.
William R. Schubert
Waste Management
Midwest Group
720 E. Butterfield Road
Lombard, IL
60148
~~Sharkey
Patricia F. Sharkey
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois
60603-3441
(312) 782-0600
THISDOCUMENT HAS BEEN P1~INThDONRECYCLED PAPER
R E C E iVi!
D
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~?
2005
STATE
OF ILLINOIS
Pollution Control Board
IN THE
MATTER OF:
)
RCRA SUBTITLE D UPDATE, USEPA
)
R 05-01
REGULATIONS (January 1, 2004,
)
(Identical-in- Substance
Through June 30, 2004)
)
Rulemaking
—
Land)
COMMENTS
OF ONYX WASTE SERVICES, INC.
As a company that hopes to
employ bioreactor techniques at landfills in Illinois,
Onyx Waste Services, Inc.
(“Onyx”) is pleased to have an opportunity
to provide
comments to the Illinois Pollution Control Board on its incorporation of the federal
Research, Development
and Demonstration (“RD&D”) rules into Illinois law. Onyx is
the world’s second largest waste management and environmental services company.
Onyx owns and
operates thirteen Municipal Solid Waste
Landfills (“MSWLFs”) in
the
United States where
liquids are introduced into the waste mass in
order to
increase
moisture content.
These landfills
all have active gas management systems.
Onyx’s
parent company, Veolia Environment,
also operates
141 MSWLFs
world wide, 70
of
which feature biogas
treatment systems and 21
of which optimize gas production for
alternate energy sources (“green power”).
Onyx owns and operates three landfills in Illinois which would be
candidates for
operation as bioreactor landfills under the Board’s rulemaking in
this docket. In fact,
Onyx recently received a grant from the National Science Foundation to perform a study
of liquids addition at its Orchard Hills Landfill and therefore
anticipates appLyingfor an
amendment to its operating permit under the RD&D rule adopted in this proceeding in
the near future. All three of Onyx’s Illinois
landfills are permitted to recirculate leachate;
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however, Onyx has found that simply recirculating leachate at its two larger landfills in
Illinois (Onyx Orchard Hills Landfill (Rockford)
and Onyx Zion Landfill (Zion,
Illinois)) does not result in the optimization of moisture content in
the waste. This is
a
regional problem. Onyx has found that the weather, geology and moisture content in
n
municipal solid waste (“MSW”) in Illinois,
and in the Midwest in general, require that a
greater amount ofliquid must be added to landfills to stimulate rapid waste
decomposition. As
is discussed below, bioreactor landfill technology has been
demonstrated to be
safe and to have many environmental benefits. Thus, it is in the
interest of the Illinois environment to
streamline the permitting process to ensure that
these technologies are put in practice here in
Illinois as quickly as possible.
Onxy was an
active participant in the development of the USEPA RD&D rules
and is well
versed in the history and intent underlying that rulemaking.
Onyx provided
comments to USEPA on the RD&D rule through the Solid Waste Association ofNorth
America (“SWANA”) and has also
provided USEPA with operating datafrom its
landfills for USEPA’s study of bioreactor landfills. By these comments, we hope to
underscore the significance of the Board’s rulemaking to the future development of
bioreactor landfills in Illinois and to reducing current environmental impacts and the
long-term risks associated with “dry tomb” MSWLFs in Illinois.
Summary of Onyx
Comments
On March 22,
2004 (40 Fed. Reg.
13242) ,USEPA published final regulations
containing standards for the streamlined issuance ofResearch, Development and
Demonstration (“RD&D”) permits under Subtitle D of the Resource Conservation and
Recovery Act (“RCRA”).This rulemaking paved the way for streamlined state permitting
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of bioreactor landfill techniques for new and existing landfills. RD&D permits will allow
landfill owners and operators to increase stabilization rates by the addition ofoutside
liquids other than leachate ,to install
alternate caps that allow more infiltration than the
impermeable cap rule, and to allow controlled “run-on” of stormwater.
On January 6, 2005, the IPCB proposed regulatory language for the incorporation
of the USEPA RD&D rule into the Illinois Administrative Code via a fast-track
rulemaking procedure that is authorized for regulations which are “identical in substance”
to federal regulations.
Onyx applauds the Board for opening this rulemaking docket to
adopt the federal RD&D rule as expeditiously
as possible. However, Onyx is concerned
that the Board’s proposed regulatory language is not “identical in substance” to the
federal regulatory language and that,
as proposed, this language will limit the usefulness
ofthe USEPA rule by creating an, overlay of redundant and lengthy procedural
hurdles
for RD&D permit applicants. The creation of a bifurcated, cumbersome process for
issuance of these permits
is contrary to
the stated intent ofthe USEPA RD&D rule and
may discourage waste companies, such as Onyx, from utilizing innovative and
environmentally beneficial bioreactor landfill techniques in
Illinois landfills.
In the case of RD&D permits,
an Adjusted Standard proceeding is
an unnecessary
exercise. Adjusted Standards
are necessary where a party is seeking a different standard.
See 415 ILCS 5/28.1(c).
In this case, the RD&D rule itself provides the standards for the
permit decision. The RD&D standards
are
peiformance standards
designed to ensure the
same level of environmental protection provided by existing
“dry tomb”
landfill
requirements. These standards were based on many years of research by EPA and
have
been documented to provide superior environmental protection. See
attached list
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referencing various key studies performed since 1959 and selected attached documents
including Onyx’s own study entitled
“Sanitary Landfills 2003
—
From Dry tombs
to Wet
Bioreactors,” B.
Todd Watermolen and
Gina
Perugini,
Onyx Waste Services, Inc..
(Attached)
The scope of the RD&D rule is limited to a few RCRA regulations that have been
identified by USEPA as standing in the way ofbroader bioreactor development in the
United States. The selection
of peiformance standards
and an
equivalency
approach,
rather than a “command and control” regulatory approach, was carefully considered by
USEPA and is designed to promote innovation. Furthermore, there is nothing unusual
about this performance standard approach.
As the Board has itself noted, alternative,
environmentally “equivalent” practices and technologies are allowed under a number of
other RCRA Subtitle D regulations for which the Board has not required an Adjusted
Standard proceeding. Given the track record established by bioreactor landfills, there is
no reason to subject RD&D permit applicants to the delay and cost associated with an
Adjusted Standard proceeding in addition to
the normal RCRA permitting process.
Onyx recommends that the Board use this “identical-in-substance” rulemaking
docket to adopt the federal RD&D language essentially
verbatim.
If adopted verbatim,
the Board’s rules will incorporate the necessary standards to guide IEPA’s permit
decisions and the Board’s review of those decisions in the context of permit appeals.
Background on Bioreactor Landfills
Before commenting in more depth
on the Board’s RD&D Proposal
in this proceeding,
Onyx would like to provide the Board with a brief overview of bioreactor landfills,
the state of
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the technology, its environmental
advantages, and USEPA’s and other states’ research and
regulatory
approach.
Bioreactor technology has been
approved by USEPA and by twenty-three (23) states.
There are currently fifty-one (51) active bioreactor landfill projects operating in the United
States.
(See
SWANA Bioreactor Committee list, 2004.)
Bioreactor techniques have also been
demonstrated to be effective in
twenty-two (22)
pilot scale and full scale demonstration projects
in the United States. There is also
a substantial body of data that has been developed at European
bioreactor landfills that contributes to our understanding of this technology.
A bioreactor landfill is
a facility operated to transform and degrade organic waste
significantly faster than the current “dry entombment” process.
This is accomplished by
injecting
liquids and recirculating leachate which accelerates organic decomposition.
This
process stabilizes the waste mass
decades sooner
than “dry landfill” practices.
By accelerating
decomposition ofwaste,
a landfill is operated in
a manner similar to a “static compost” facility.
The bioreactor landfill treats leachate faster because it flushes out pollutants from the waste mass
with leachate recirculation, binds
metals in precipitates, and biodegrades VOCs in the leachate.
Maintaining a minimum volume of leachate
on the liner has been observed to be a
manageable issue in bioreactors reported in
the literature.
See the attached reports on controlled
side-by-side studies comparing bioreactor and
“dry tomb” waste cell
technologies at the Outer
Loop and Yolo County Landfills.
These graphs show less than one foot ofleachate on
the liner
at all times and that the total volume of leachate produced by the bioreactor cells were less than
that produced in
the “dry tomb” cells.
In fact, none of the previous bioreactor landfill pilot scale
or full scale projects has been found to
cause an adverse environmental impact during its
operation or to increase the head of leachate on the liner. (See attached documents discussing
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bioreactor landfill data and research.)
Thus, bioreactor landfills should be
considered a safer
mode of managing MSW landfills.
The introduction
and circulation of liquids in each waste cell
results in the following
environmental benefits:
•
Generates usable gas quantities at a faster rate for renewable energy source and
increases revenues from energy sales.
•
Reduces greenhouse gas emissions.
•
Allows for re-use of areas ofthe landfill that have settled due to the
transformation of organics to
gas and leachate. Airspace gains due to settlement
have resulted in up to
40
additional volume
added to the same landfill
cell. This
reduces the need to expand or build more landfills.
•
Reduces long term risk and post-closure care of landfills due to the rapid
treatment of leachate and reduction in gas production to safe levels.
•
Provides a safer disposal method for no-hazardous liquid wastes that previously
were
dischargedto surface water and air (discharges to
air and surface water from
a bioreactor landfill are avoided and controlled)
Liquid addition optimizes landfill gas production in
a short period of time in
quantities that can be effectively and economically captured by an active gas
management system earlier in the life ofthe landfill. As a result ofearlier and more
efficient active gas management, this technology reduces odors and methane emissions
that would otherwise be slowly emitted to the environment.
Producing energy from
methane also offsets CO2 produced by burning fossil
fuels for an equivalent amount of
energy.
Veolia Environment’s, research and development division CREED,
located in
France, conducted research pioneering the development of bioreactor landfills that
optimize landfill gas production and provide alternate
sources of energy. Veolia is
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/
I
particularly excited about the potential this technology offers for reducing “greenhouse
gases” which cause
global warming. The Intergovernmental Panel on Climate Change
has found that methane gas has an impact on global
warming that
is potentially twenty-
L
one times more than that of C02. Thus, combusting methane in controlled flares,
engines, and turbines not only provides “green power,” it also reduces “greenhouse gas”
emissions
Here in the United States bioreactor landfill technology has been studied since the late
1950’s.
USEPA and the Department ofEnergy have supported research in their predecessor
agencies since the late
‘60s.
(See attached reference list and selected
attached documents
discussing this
research.
)
This research recommends
moisture addition
to
achieve “field
capacity,” the level at which gas production and decomposition
are optimized,
in MSW.
Field
capacity for MSW is often 45-50
wet weight.
Moisture levels in MSW typically run about 20-
25
in
the Midwest.
Thus, significant volumes of moisture are required to achieve optimum
degradation at landfills
in this area.
It is estimated that a bioreactor landfill requires from 40 to
80 gallons of liquid per ton of MSW to achieve optimum moisture
levels. This is substantially
more than can be added by simply recirculating leachatè.
Under USEPA’s Subtitle D RCRA regulations, recirculation of leachate was allowed to
increase landfill stability. But, afterreviewing the data generated by landfills that recirculated
leachate, USEPA realized that most sites do not have sufficient leachate volumes to achieve
“field capacity,”
and, thus, need to add liquids from outside sources to promote decomposition.
As early as 1997, even before USEPA’s RD&D rule had been proposed, fourteen states
(Alabama,
Alaska, Arkansas, California, Colorado, Delaware, Florida, Iowa, Michigan,
Mississippi, Montana, New Jersey, New York and Washington) either had permitted bioreactor
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extended over two to three years. As
a result of the time and
delay built into the Project XL
procedures, only four bioreactor projects have been approved to date under that program.
By 1998, USEPA’s Air Pollution Prevention and Control Division
(EPA-600/R-98-021,
Feb
1998) had designated bioreactor technology as an emerging and environmentally preferable
alternative for landfill gas management.
In its 1998 report on “Emerging Technologies forthe
Management and
Utilization of Landfill Gas, “USEPA’s Air Division described bioreactor
landfills as a “Tier II technology” for the control of greenhouse gases. (Attached.) USEPA
recognized that the bioreactor would control more gas in the active operation of the landfill and
provide for waste stabilization much faster than a “dry tomb” landfill.
By 2002,
USEPA recognized that landfill technology had evolved, but that regulatory
hurdles in the Subtitle D regulations were limiting the use of environmentally superior
techniques. Thus, it proposed the RD&D rules to streamline the permitting process and
encourage faster development of bioreactor landfills. On June 10,
2002, USEPA proposed the
RD&D rule, stating:
“EPA is proposing to allow permits for alternative design and
operating requirements because EPA has become aware ofnew or
improved technologies for landfill operations and design since the
promulgation of the MSWLF criteria in 1991. These include: (1)
improvements in liner system design and materials; (2)
improvements in the design of, and materials used in
leachate
drainage and recirculation systems;(3) new processes for more
rapid degradation of waste which require the addition of water or
steam;
(4) new liquid distribution techniques (see EPA Docket
Number F-2000-ALPA-FiI-~F’Ffor FR Notice:
alternative Liner
Performance, Leachate
Recirculation, and Bioreactor Landfills:
Request for Information and Data, April 6,
2000, FR 18014); and
(5) improvements in various monitoring
devices (i.e., “Prediction
and Measurement ofLeachate Head on Landfill Liners,” Debra R.
Reinhart, Florida Centre for Solid and Hazardous Waste
Management, Report #98-3, July
1998).” 67
Fed. Reg. 39662,
at
39664
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process can be expected to build months, and,
with the possibility of appeals, even years,
of delay and added cost into the RD&D permit process.
4.
The Proposed Bifurcated Decision Process Won’t Work
Because the RD&D rule already contains standards, the Board’s Adjusted
Standard proceeding will only involve applying those standards to
a specific bioreactor
proposal, just as the Agency will ultimately do in
the permit process. This prior Adjusted
Standard review of the same technical elements of individual RD&D proposals that will
be the subject of the permit process is duplicative and
“puts the cart before the horse.”
As a practical matter, each RD&D proposal will present technical issues on
which the Board will require detailed information and the Agency’s and the Applicant’s
technical expertise. Because the Board’s Adjusted Standard process is
a formal “arms
length” adjudicatory process, the Board cannot sit down and discuss the proposal and
technical
aspects with the applicant and the Agency. Thus,
in
practice, the applicant and
the Agency will have to meet
and work out an
agreed proposal before the Adjusted
Standard proceeding is initiated.
But until the Agency has reviewed the detailed plans that would accompany a
permit application, it will be hard-pressed to concurin a conclusion that there will be no
groundwater or surface water contamination from a particular project or that the project is
“as protective as” the “dry” landfill approach. These, in fact, are the fundamental, fact-
based decisions the Agency is charged with
making in its permitting process. So as a
practical matter, the permit applicant will have to prepare and submit its permit
application to
the Agency in
advance ofthe Adjusted Standard proceeding. However,
IEPA has informed Onyx that it will not “co-process” a RD&D permit
application while
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comparative data from the Yolo County bioreactor demonstration project discussed in “A
Beneficial Investment in Trash, Controlled Landfill Bioreactor Project, Urban Corsortium
Energy Task Force, Yolo County, California Planning & Public Works Department,
Division ofIntegrated Waste Management, May 2000.” (Attached)
Given these findings,
there is no demonstrated need for greater public process forRD&D permits
than for any
other SWMLF permit.
6.
RD&D Decisions Are Engineering Decisions
That Should Be Made
By the
IEPA in the Permitting
Process
The Board states in
its
Opinion that “The RD&D permit determination is
beyond
the outer boundary of the decision-making authority that can be conferred on the Agency
by regulation.” See Proposed Opinion and Order at p. 7.
Onyx respectfully disagrees with
this
conclusion. The
RD&D
rule
requires
the permitting
authority
to
make
fact-based
technical
determinations on individual projects. These decisions do not require “standard-
setting” because the RD&D rule itself contains the necessary standards.
Under the Illinois
Environmental Protection
Act’s division of powers, factual decisions
in
individual cases
are,
in the first instance, the function of the permitting agency, the IEPA, not the Board.
The decisions involved in the issuance of RD&D permits are engineering
decisions. For example, if the RD&D applicant requests an RD&D alternative to the run-
on control rules (35 Ill. Admin. Code 81 1.301(bl) and(b)(2)) or the liquids restriction
rules (35 Ill. Admin. Code 81 1.107(m)(1)), the permitting authority must first determine
whether 1) the landfill has a leachate collection system designed and constructed to
maintain less than 30-cm depth of leachate
on the liner, and 2) whether the new methods
will cause contamination of groundwater or surface water. For an
alternative to the final
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cover standards (35111. Admin. Code
811.3 14(b) and (c)), the Agency would review the
applicant’s technical demonstration that
1) infiltration won’t cause contamination and 2)
the leachate depth on the linerwill not exceed 30 cm in
depth.
As the Board notes in
the Proposed Opinion and Order, these are “engineering
judgments of a type routinely made by the Agency.” (Opinion at p. 8.) Yet, the regulatory
language proposed by the Board would take these decisions entirely away from the
Agency and
require them to be made by the Board in
an Adjusted Standard proceeding:
“Section 813.112(a)
-
.
.the Agency
must
issue a research,
development, and demonstration (RD&D) permit for a new
MSWLF unit, existing MSWLF units, or lateral
expansion..
.provided the Board has determinedby an adjusted
standard
.
.
.
that the MSWLF unit has a leachate collection system
that is designed and constructed to maintain less than a 30cm
depth of leachate on the liner and that the innovative and new
methods will not cause contamination of groundwater or suiface
water...”
(Opinion
at p. 52. Also see Proposed Section 813.112(b))
7.
The equivalent protection standard is not “too nebulous” as a standard for
Agency permitting and Board permit appeals.
The Board’s reason for requiring the Adjusted Standard proceeding, as stated in
the Opinion, was that the standards in
the RD&D permit were “too nebulous.” In
particular, the Board stated the “at least as protective” standard in 40 CFR 258.4(c
)
was
“problematic”
—
apparently in the sense that it requires the exercise ofjudgment which in
the Board’s opinion “would benefit through a record developed through the notice and
opportunity for comment.” (Opinion
at p. 8) Oddly, in light ofthis stated concern, the
Board’s proposed regulatory language places the “at least as protective” decision in
the
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Agency permitting process, not the Adjusted Standard proceeding.2 Onyx agrees that the
Agency is the correct entity to be making these decisions, but is confused by the Board’s
statement compared to
the proposed regulatory language.
Onyx disagrees that
any
of the standards in
the RD&D rule are “too nebulous” to
be
applied in the permitting process. The standards in the RD&D rule
are “performance
standards.” While designed to encourage technological innovation and flexibility, but
they are neither open-endednor “nebulous.”
The decisions required under Section
813.112(a)
and (b), as the Board itself states, are engineeringjudgments routinely made
by the Agency. The decision regarding the equivalency of protection ofthe environment
is
also an engineering decision. As USEPA explained:
“EPA believes an “equivalent or better” standard is the correct
standard. EPA has promulgated objective criteria under the statute,
many of which include authority for approved states to allow
“alternative” means ofmeeting the criteria which are ‘equivalent.”
(69 Fed. Reg.
13242
at 13251-13252)
The equivalency standard requires
the decision maker to compare the
performance ofproposed bioreactor technology and practices to the performance
achieved by “dry” landfill technology and practices required under the
“final cover,”
“run-on
control,” and “liquids restriction” regulations. There is nothing nebulous about
this. To demonstrate that a proposed bioreactor project provides equivalent protection as
that provided by these existing regulations, an
RD&D permit applicant will be required to
provide detailed engineering information and comparative data on environmental impacts
in the permit application and upon renewal. As
discussed in the attached literature, there
2
“Section 813.112 (c)Any RD&D permit issued under this Section
must include such terms and conditions as are at least as protective
as the MSWLF standards...” (Opinion
at p. 53)
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is an extensive body of research providing comparisons of leachate and gas production at
various moisture levels in bioreactors to leachate and gas production levels at “dry tomb”
landfills.
Determinations of environmental “equivalency” are not
subjective judgments.
Rather, they are decisions based
on hard data, engineering expertise,
and environmental
science
principles and calculations. Again, these are decisions the Agency makes
routinely in the permit process, and that the Board is authorized to
review in permit
appeals.
8.
Other Board
Subtitle D Regulations
Allow
Equivalent Alternative Practices
Without Requiring Adjusted Standard Proceedings
As
the Board notes in the Proposed Opinion
and Order, “Those determinations
made by an Agency to allow alternative materials orpractices that are permit decisions
contain sufficient
standards for performance of the alternatives.” (Opinion
at p. 7.) The
Board cites Sections 811.106(b) and
811.314(b)(4)(C) as examples of Board rules that
authorize the “alternatives” based on a standard of “equivalent or superior performance to
the requirements of other
subsections.”
~ Onyx agrees that these are examples of other
~Section
811.106(b)
-
.
Alternative materials or procedures, including the removal of daily cover prior
to
additional waste placement, may be used, provided that the alternative,
materials or procedures
achieve equivalent orsuperior pemformance
to the
requirements of subsection (a) in the following areas:
1)
Prevention of blowing debris;
2)
Minimization of access to the waste by vectors;
3)
Minimization ofthe threat of fires at the open
face; and
4)
Minimization of odors”
Section 811.3 14(b)(4)(C)
“4)
The low permeability layer shall consist of any one of the following:
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Board RCRA regulations that use an “equivalency” standard, reference to
other specified
requirements, and
do not
require Adjusted Standard proceedings. Onyx
also agrees with
USEPA that the “at least as protective” standard in
Rule 258.4(c), which also requires a
comparison
to specific requirements
in other rules, is the same type ofequivalency
standard as is used in
the regulations cited by the Board.
Notably, the two sections of the regulations that the Board cites as requiring
Adjusted Standards for an
“alternative” compliance approaches both involve landfills
handling 20 tons or less of waste per day. ~In fact, the RD&D rule is consistent with this:
Section 258.4(f) states that a landfill which handles 20 tons or less of waste per day is
“ineligible” for an
RD&D permit. Thus, the Board’s own analysis confirms that
the
Board’s RCRA regulations have recognized the Agency’s authority to make equivalency
determinations
without Adjusted Standards,
except in cases involving small landfills
which are not subject to the same design,
monitoring and corrective action requirements.
A)
A compacted earth layerconstructed in accordance with the
following standards:...
B)
A geomembrane constructed in
accordance with
the following
standards:
....,
or
C)
Any other low permeability layer construction
techniques or
materials, provided that they provide
equivalent or superior
performance to
the requirements of this subsection.”
4Section 811.310(e)
“Any alternative frequencies for the monitoring requirement of subsection (c) for
any owner or operator of an MSWLF that disposes of 20 tons of municipal
solid
waste per day or less, based on an annual average, must be established by an
adjusted standard pursuant to Section
28.1
ofthe Act and 35 Ill. Adm.
Code 106.
Any alternative monitoring frequencies established under this subsection (e)
will:
1)
Consider the unique characteristics of small communities;
2)
Take into account climatic and hydrogeologic
conditions; and
3)
Be protective of human health and the environment.”
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9.
USEPA Revised the RD&D Rule to Avoid Delegating Standard-Setting
USEPA narrowed the scope of the RD&D rule between issuance of the proposed
rule and issuance of the final rule to avoid the charge that it was delegating “standard
setting” to permitting authorities. In the preamble to the final rule, USEPA
explained:
“This modification of the proposal also responds to a comment
asserting that the RD&D permit proposal would unlawfully
delegate standard-setting authority to approved states. By
narrowing the RD&D permit to specific criteria which do not
already include variance authority, EPA further clarifies that it did
not intend that the variance, or “waiver,” authority as proposed
would allow
that the requirements themselves could have been
waived altogether.”
Furthermore, the USEPA rule prohibits the state permitting authority from
issuing permits which differ in any way from the Part 258 regulations except as specified
under the standards in new Section 258.4 (40 CFR 258.4). See 69 Fed. Reg.
13242 at
13252 which states:
“Part 258 does not allow variances from ss 258.26(a)(1),
258.28(a)
and 258.60(a)(1),(2) and (b)(1), except in accordance with today’s
rule, and therefore, EPA would not approve a state program
modification incorporating authority to deviate from the
requirements ofthese criteria in standard MSWLF permits. Unless
and until EPA promulgates a rule incorporating any such changes
into the federal
criteria, after seeking comment, states would not be
able to allow a new technology or method to be included in a
MSWLF permit outside of the RD&D rule parameters.”
10.
The Board’s Proposed
RD&D
Regulation Is Not Identical-in-Substance to
the USEPA RD&D Rule and Therefore Exceeds the Board’s Authority
Under Sections
7.2
and 22.40 ofthe Act
Sections 7.2
and 22.40 of the Act authorizes a fast-track process for the adoption
ofIllinois regulations
only for proposals that are “identical-in-substance” to
federal
regulations mandated to secure federal authorization under RCRA. As stated, the
insertion of the Adjusted Standard procedure into the RD&D rule is
contrary to USEPA’s
20
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intent to streamline the RD&D permit process and will create a cumbersome process with
additional costs and barriers
to issuance of RD&D permits.
The Board’s proposed bifurcation of the decision-making is not required by the
H.
division of authority under the Act.
Furthermore, a lengthy, two-tiered decision making
H
process is not supported by the record ofUSEPA’s decision in the substantive federal
rulemaking or by
any comment submitted to the Board in this rulemaking.
Onyx’
Proposed Language
—
With the exception of the termination provision, Onyx recommends
that the
Board adopt the regulatory language proposed by the Illinois Environmental Protection
Agency in its Comment
on August 31, 2004. That proposal adopts
the federal language
verbatim except that it references the Agency as the permit authority. This will ensure
r
that the regulations
in Illinois are “identical-in-substance” to the federal regulations,
streamline the permitting process and promote the development ofbioreactor landfills in
L
Illinois.
Onyx agrees with the Board that the Act does not allow the Agency to terminate a
permit.
Onyx believes the Board’s proposed language on the termination of the permit is
appropriate and substantively identical to the USEPA rule.
If the Board believes it is necessary to include
a definition of “Research,
Development, and Demonstration Permit” in the regulations it should simply refer to
permits issued under the section containing the RD&D requirements.
Conclusion
This is an
“identical-in-substance” rulemaking for a federally prescribed rule that
contains standards for permitting that are not unlike other Subtitle D permit standards.
21
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After years of research and other “site specific” and “experimental permit” approaches,
USEPA
finally adopted standards for RD&D
permits and thereby-streamlined the
procedure forissuance of RD&D permits. The Board’s proposed creation of a bi-furcated
decision-making process with multiple procedural hurdles will undo that streamlining and
will hamper the development of state of the art bioreactor landfills
in Illinois.
The adoption of the federal rule essentially verbatim will not give IEPA the
latitude to allow “variances” from existing Subtitle D requirements. The only authority
granted under the federal rule is the authority to issue permits that meet the performance
standards stated in the
RD&D rule. Those standards provide the Agency with the
standards
necessary to make engineeringjudgments in the permitting process and provide
the Board with the necessary standards for the review of the Agency’s permit decisions.
Based on the above, Onyx recommends that the Board adopt the RD&D rule as
proposed by the Agency in its August 31,
2004 comment, with the exception of the
termination provision.
Re
ectfully Submitted;
Onyx Waste Services
By One of Its Attorneys
Patricia F. Sharkey, Esq.
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, Illinois
60603
(312) 782-0600
22
This Document Has Been Printed on Recycled Paper
Respectfully Submitted,
B.
Todd Watermolen
Vice-President
Engineering & Environmental
Compliance
Onyx Waste Services, Inc.
B. Todd
Watermolen
Vice-President
Engineering
& Environmental
Compliance
Onyx
Waste
Services,
Inc.
125
South
84th
Street
Suite
200
Milwaukee, Wisconsin
53214
(4i4~
479-7800
D
E
fly
On
WasteScfldces
OneofIts Consultants
John A. Baker
President
Man
Envimnmcntal, JAC
1~4OMap1eAvenue
Downers Grove, fihinois
60515
(630)541-3202
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER
OF:
)
RCRA SUBTITLE D UPDATE, USEPA
)
R 05-01
REGULATIONS (January 1, 2004,
)
(Identical-in- Substance
Through June 30, 2004)
)
Rulemaking
—
Land)
ATTACHMENTS TO COMMENTS OF ONYX WASTE SERVICES, INC.
1.
References:
Bioreactor Research
2.
Onyx
Webpage
3.
Resume ofB. Todd Watermolen
4.
Sanitary Landfills 2003
—
From Dry Tombs to Wet Bioreactors,
B. Todd
Watermolen,
P.E.
and Gina Perugini, Onyx Waste Services, Inc.
5.
Curriculum Vitae and Resume ofJohn Baker
6.
Summary ofBioreactor Technologyfor MSWLandfills
& Environmental Regulatory
Status,
by John A. Baker
7.
Emerging Technologiesfor the Managementand Utilization ofLandfill Gas,
by Stephen
Roe, Joel Reisman, Randy Strait, Michiel Doom, February
1998
8.
BioreactorLandfills:
A Viable Technology,
by Edward W. Repa, Ph.D.,
October 2003
9.
An Introduction
to BioreactorLandfill Concepts and Design Concernsfrom
a Regulatory
Perspective,
by Robert J. Phaneuf, P.E.,
2003 ASTSWJVIO
State Solid Waste Managers
Conference
10.
Landfill Bioreactors:
A New York State Regulatory Perspective,
by Robert J. Phaneuf
and John
M. Vana
11.
The BioreactorLandfill
—
An Innovation in Solid Waste Management
12.
A Beneficial Investment in
Trash,
Controlled Landfill BioreactorProject, Urban
Consortium Energy Task Force, Yolo County, California Planning& Public Works
Department, Division of Integrated Waste Management, May 2000
13.
Landfills as Bioreactors:
Research at the Outer Loop Landfill, Louisville, Kentucky,
First Interim Report, September 2003,
GaryHater and Roger Green,
Waste Management,
Inc. BioSites Program
