ILLINOIS POLLUTION CONTROL BOARD
April 7, 2005
IN THE MATTER OF:
PETITION OF JO’LYN CORPORATION and
FALCON WASTE AND RECYCLING INC.
FOR AN ADJUSTED STANDARD FROM 35
ILL. ADM. CODE 807.103 AND 35 ILL.
ADM. CODE 810.103, OR IN THE
ALTERNATIVE, A FINDING OF
INAPPLICABILITY
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AS 04-2
(Adjusted Standard - Land)
ELIZABETH S. HARVEY, SWANSON, MARTIN, & BELL, APPPEARED ON BEHALF OF
PETITIONERS; and
JOHN J. KIM, APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by N.J. Melas):
Jo’Lyn Corporation (Jo’Lyn) and Falcon Waste and Recycling, Inc. (Falcon) recycle
asphalt shingles into a road-base alternative at their facility in Woodstock, McHenry County.
They seek a determination by the Board that the material they would purchase, store, and use at
the facility is not a solid waste under the meaning of the Environmental Protection Act (Act).
415 ILCS 5/1
et seq
. (2002). In the alternative, Jo’Lyn and Falcon request relief from the
Board’s solid waste regulations as those limits pertain to their operation.
On April 21, 2004, the petitioners filed this petition for a Board determination or an
adjusted standard from 35 Ill. Adm. Code 807.103 and 810.103. In the petition, the petitioners
waived hearing and requested expedited review. On September 3, 2004, the Illinois
Environmental Protection Agency (Agency) filed a recommendation that the Board deny the
petitioners’ requested relief. On its own motion, the Board scheduled a hearing on the petition,
which was held on December 22, 2004.
The Board has expedited this decision, as again requested by the petitioners on
February 10, 2005. Based on the hearing record and the other information before it, the Board
finds that the material, as purchased and processed by the petitioners into a paving product, is not
a waste. The Board, therefore, denies the petitioners’ alternative request for an adjusted standard
as moot.
PROCEDURAL BACKGROUND
On April 21, 2004, Jo’Lyn and Falcon filed this petition (Pet.), with the Board for an
adjusted standard from the Board’s solid waste regulations. Falcon is a division of Jo’Lyn.
Falcon and Jo’Lyn are both petitioners in this matter, although the petition applies to a single
2
facility. On April 30, 2004, petitioners published notice of the petition in the
Northwest Herald
,
and filed the certificate of publication with the Board on May 5, 2004.
On July 8, 2004, the petitioners filed an amended petition addressing questions in the
Board’s May 20, 2005 order. On July 14, 2004, the petitioners filed a supplement to the
amended petition. Petitioners timely published notice of the amended petition in the
Northwest
Herald
on July 26, 2004, and on August 2, 2004, filed the certificate of publication with the
Board. The Agency filed its recommendation (Rec.) that the Board deny the petitioners’
requested relief on September 3, 2004.
On October 7, 2004, the Board accepted the petitioners’ amended petition, denied the
motion for expedited review, and sent the parties to hearing on the petition. A hearing was held
on December 22, 2004, at which eight exhibits by the parties and one hearing officer exhibit
were entered into the record.
The petitioners filed a post-hearing brief on January 14, 2005. The Agency responded on
February 3, 2005, and the petitioner’s filed a reply on February 10, 2005, accompanied by a new
motion for expedited review.
To date the Board has received thirteen written public comments, all in support of the
petitioners’ request for relief. The list of written public comments includes those from: the
Illinois Recycling Association, Mr. Warren A. Furst, Mr. Billie L. Arvidson, Ms. Barbara J. Day,
Ms. Alice V. Howenstine, Representative Jack D. Franks, Ms. Jeanette Hamilton, the Harvard
Crane and Construction Company, Inc., Senator Pamela J. Althoff, Gallagly Drywall, Inc., Mr.
Richard Shields, Mr. & Mrs. Draper, and Mr. William Turley, Executive Director of the
Construction Materials Recycling Association.
FACTUAL BACKGROUND
The Facility
The petitioners’ facility, located at 1200 North Rose Farm Road, Woodstock, McHenry
County, processes granulate bituminous shingle material (GBSM) into dust control and paving
applications. The facility employs four people, two that process the material and two drivers that
haul the material from IKO Chicago to the Woodstock facility. Am. Pet. at 4. Petitioners state
they began operations in 2000 at a facility located at 2 Kennedy Road, Harvard. Am. Pet. at 4.
Petitioners’ Woodstock facility opened in February, 2001 and is approximately three years old.
Id
. When petitioners learned that the Agency would require a land permit, operations ceased.
Petitioners state that GBSM is pre-consumer material that contains no asbestos, nails,
wood, or other “contaminants” that could adversely impact the environment while storing the
product for short periods of time. Am. Pet. at 12. Petitioners state that GBSM may contain a
very small amount of fiberglass (about 2%), located in the backing of the shingle. Supp. to Pet.
at 2. The petitioners have a temporary purchase agreement to purchase GBSM from IKO
Chicago. Pet. Exh. 1.
3
Petitioners state they applied to the Agency for water and air permits. However, the
Agency denied the petitioners’ application for an air permit on the grounds that petitioners also
require a land permit. Pet. at 2-3. Petitioners state they have approximately 5,376 tons of
GBSM at their facility, most of which is sold and awaiting the conclusion of this proceeding to
be installed. Am. Pet. at 10-11.
Production Process
The GBSM that the petitioners use is clean and consistent post-production material
generated by the roofing shingle manufacturing process, such as punch-outs, mis-colored, or
damaged shingles. The petitioners do not use post-consumer material, known as “tear-offs,”
which may be inconsistent or contain nails or asbestos. Pet. at 2.
Petitioners state they currently purchase GBSM from only one roofing shingle
manufacturer, IKO Chicago, Inc., located in Bedford Park. The petitioners state that the material
they purchase from IKO Chicago must be free from “contaminants” as provided by a temporary
purchase agreement entered into by the parties. Pet. Exh. A. Petitioners state they have
purchased and hauled 5,756 tons of GBSM from IKO Chicago from 2000 through 2003. The
petitioners state that they purchase GBSM from IKO Chicago for $5 per ton. Tr. at 104.
On May 18, 1993, in response to a request from IKO Chicago, the Illinois Environmental
Protection Agency issued a determination that the GMSM generated by IKO Chicago, and
shredded either at the IKO facility or the end-user’s site, is not a solid waste when used for
specific paving applications. Pet. Exh. D. This declassification remained effective until July 1,
2001.
1
Am. Pet. at 5.
The petitioners state they have used 400 tons of GBSM in test applications. Am. Pet. at
10. The petitioners use a portable horizontal grinder to shred the GBSM into uniform size.
According to petitioners, the facility can grind approximately 40 tons per hour, equaling
approximately 320 tons of material per day. Am. Pet. at 11. GBSM becomes Eclipse Dust
Control (EDC) after the grinding process. Tr. at 73. The material is then applied as a paving
product. Pet. at 2. Petitioners explain that because the application process must be done in the
summer, petitioners cease activity during the winter. Am. Pet. at 12.
Petitioners assert that the only air emissions at the facility are produced by the muffler on
the grinder, and because the grinding process uses a light mist of water, the grinding produces no
dust. Am. Pet. at 5.
Eclipse Dust Control Application
Petitioners sell the GBSM they process as a product called Eclipse Dust Control
Petitioners claim that EDC is a paving product can be used on parking lots, driveways, farm
lanes, bike and walking paths, and other surfaces. Pet. at 4; Hearing Exh. 4 at 3. Petitioners
assert that EDC will last more than five years, needs no seal coating or other maintenance, and
1
When the Board amended its special waste rules in 1999, it included a provision that all
declassifications would remain effective for 2 years. 35 Ill. Adm. Code 808.101.
4
costs approximately $0.45 per square foot installed. Pet. Exh. B. In addition to dust control,
petitioners state that other advantages to EDC is reduced cracking compared to blacktop or
concrete, and reduced noise. Am. Pet. at 7.
When installing EDC, petitioners first evaluate a site and then fill low areas with grade 9
stone to bring the surface to a level base, maintaining a slight arch for drainage. Am. Pet. at 9.
Petitioners apply the shingle chips at a 4 to 6 inch thickness, prior to compacting, with either a
black top spreader or a bobcat with a blade attachment. Am. Pet. at 9. The GBSM is then
compacted to a finished 2-3 inch thickness using a 10-ton vibratory roller.
Id
. The heat of the
sun completes the bonding process of the EDC. Tr. at 7; Mot. for Expedited Dec. at 1.
Petitioners estimate that 16.667 tons of GBSM is needed to install a 1000 square foot EDC
driveway. Pet. Br. at 11.
Attached to the petition, are several installation quotes and contracts between Falcon and
various customers illustrating that there is a market for Eclipse Dust Control. Pet. Exh. E.
THE HEARING
At the hearing, two witnesses testified on behalf of the petitioners. First, Mrs. Kathy
Powles, vice-president of Jo’Lyn and president of Falcon, testified regarding the operations at
the facility, the specifications of EDC, and applications of the product. Second, Mr. Foulkes, of
IKO, testified about the components of the GBSM and the history of IKO’s experiences with the
Agency regarding GBSM.
Several members of the public attended the hearing and presented oral public comments.
Ms. Beverly Meuch, of Lou Marchi Total Recycling Institute, commented on behalf of the
petitioners. Tr. at 64. Mr. Lowe commented that in his opinion EDC is very useful and
economical. Tr. at 66. Mr. Murray, the Heartland Township commissioner, stated that
Heartland Township still has quite a few miles of gravel road where EDC could be used to keep
dust down. Tr. at 67. Ms. Neimann, solid waste coordinator for McHenry County, stated that
the current solid waste management plan for the county supports recycling to keep waste out of
the landfills. Tr. at 67-68. Ms. Stevens and Ms. Marsh also commented in favor of the petition.
Tr. at 69-70.
Mr. William Turley, executive director of Construction Materials Recycling Association,
stated his organization has been working with the United States Environmental Protection
Agency (USEPA) and various states to promote the recycling of asphalt shingles. Tr. at 173-74.
Mr. Turley commented that the state should not limit the thickness of the applied material, and
the term “clean” is an industry term to mean the manufacturer’s waste. Mr. Mitchell, executive
director of the Illinois Recycling Association, was sworn in and testified that in his opinion, a
finding of inapplicability is more appropriate than an adjusted standard here, because the
petitioners’ conduct is more a recycling than waste disposal operation. Tr. at 178. Mr. Mitchell
stated that innovative processes such as shingle recycling take hard-to-recycle-material out of
landfills and into a productive economy “in an environmentally friendly way.” Tr. at 180.
PETITIONERS’ REQUEST FOR FINDING OF INAPPLICABILITY
5
The petitioners maintain in the petition, at hearing, and in post-hearing briefs, that GBSM
is not a waste, because they collect and process the material from the manufacturer IKO Chicago
into a paving product. Reply at 2. Petitioners assert that the GBSM they purchase is not
discarded, but is returned to the economic mainstream as a useful paving product. The
petitioners further contend that their Woodstock facility should not be treated in the same way as
a landfill or transfer station when assessing protection of the environment. Pet. at 10. The
petitioners argue that GBSM is not a waste for two primary reasons: (1) the Agency has already
determined that GBSM is not a waste when used for a paving product; and (2) the petitioners’
position is supported by a recent Illinois Supreme Court decision.
1993 Agency Solid Waste Determination
The petitioners first contend that in 1993, the Agency determined that GBSM produced
by IKO is not a waste when used for specific paving applications as defined in the determination.
Pet. Br. at 3; Pet. at 3, Exh. D. The determination was issued specifically to IKO for the GBSM
that IKO produced. Pet. at 3, Exh. D; Resp. at 4-6. The petitioners contend that the Board
should adopt the Agency’s determination and find that GBSM is not a waste. Pet. Br. at 3.
Alternate Fuels, Inc. v. IEPA (2004)
In support of their argument, the petitioners rely on the recent Illinois Supreme Court
decision in Alternate Fuels, Inc. v. Director of the IEPA, No. 96071, 2004 Ill. LEXIS 1616
(Oct. 21, 2004) (AFI). Pet. Br. at 4. In AFI, the court held that because the plastic materials AFI
processed and sold for use as fuel are not “discarded,” they do not constitute a waste under the
meaning of the Act and Board regulations. The court further found that, consequently, AFI is
not a pollution control facility requiring permitting and local siting review.
Id
.
THE AGENCY’S RECOMMENDATION TO DENY PETITIONERS’ REQUEST
The Agency maintains post-hearing, as it did in its recommendation, that GBSM is a
waste. Thus, argues the Agency, the Board should deny petitioners’ request for a finding of
inapplicability.
Agency’s Solid Waste Determination
The Agency states the May 18, 1993 solid waste determination is not relevant because
that letter was issued only to IKO based upon a specific request supported by specific
information. Ag. Resp. at 2. According to the Agency, the May 1993 letter did not contemplate
IKO selling their GBSM to a third party, or the possibility of a third party processing the GBSM
in a way similar to the process described in the determination letter. Ag. Resp. at 3.
Alternate Fuels, Inc. (2004)
6
The Agency states that AFI is factually and legally distinguishable from the facts at hand.
Ag. Resp. at 3. Thus, even the Supreme Court’s affirmation of AFI in October 2004 is not
persuasive, argues the Agency. Ag. Resp. at 3.
The Agency contends that the petitioners receive and process “discarded material” within
the plain meaning of the definition of “waste” under section 3.535 of the Act. 415 ILCS 5/3.535
(2002). According to the Agency, GBSM is a “waste” discarded by its manufacturer, IKO.
Because the GBSM that the petitioners receive is a waste, asserts the Agency, the petitioners’
facility is a pollution control facility and must meet all of the associated permitting requirements.
As part of the permitting process, a pollution control facility must obtain local siting approval,
which requires public hearings and allows for public comment on the facility’s application.
In its recommendation, the Agency stated that unlike in AFI, the petitioners have not
demonstrated: (1) the existence of a contractual arrangement regarding the content of material;
(2) compliance of material to permit specifications; (3) an analysis performed on material by
generators for review and approval by an intermediate processor; or (4) whether there will be any
level of quality control. The Agency states that the petitioners are precluded from citing AFI in
support of their argument because the court in AFI was never asked whether the material being
accepted by AFI was a waste. Rec. at 8.
The Agency states that the facts at hand are distinguishable from cases where the Board
has made a finding of inapplicability in the past. The Agency contends that in cases where the
Board found that the material in question was not a waste, the petitioner was the actual generator
of the waste that maintained control of the material. Rec. at 6; citing Illinois Power Co. v. IEPA,
PCB 97-35, 97-36 (Jan. 23, 1997). The Agency states, however, that materials accepted from
off-site generators and not part of the generators’ ongoing process are considered “discarded”
and, therefore, a waste.
Id
. The Agency states that, in accordance with caselaw, because the
petitioners are not the generators of GBSM, the GBSM is not part of any ongoing process.
Id
. at
6-7. The Agency concludes that here the Board must consider GBSM “discarded” by another
party, and thus, a “waste.”
Id
. at 9.
ISSUES DISCUSSED AT HEARING AND POST-HEARING
The Agency stated that even after reviewing the amended petition and supplemental
information, Agency had several unanswered concerns and problems with the petitioners’
request for a finding of inapplicability. Resp. Br. at 3-4, 10. In its recommendation, the Agency
sought information such as an equipment list, an operating procedure, and timeframes for storage
before and after grinding. Rec. at 9. The Agency stated that the petitioners did not provide
information about the test applications such as the location of the test sections, the dates of
application, or whether noise and dust were eliminated. Rec. at 10. The Agency also sought
information explaining quality control procedures, whether any physical or chemical testing
would be performed and if EDC contained toxic substances, and a comparison of installed EDC
to asphalt or other materials utilized for paving surfaces.
Id.
After reviewing the hearing testimony and post-hearing briefs the Agency stated that the
petitioners still had not adequately addressed the issues of quality control and whether petitioners
7
plan to accept GBSM from sources other than IKO Chicago. Below the Board sets forth the
issues discussed at hearing and in post hearing briefs.
Petitioners Employ Methods to Control Quality
Quality control includes operating in accordance with certain procedures.
See
Hearing
Exh. 2. Petitioners state there are three separate visual inspections of the GBSM: (1) at the IKO
facility; (2) at the petitioners’ facility upon delivery; (3) and when the GBSM is loaded into the
grinder. Pet. Br. at 12. Petitioners state they have never encountered GBSM that contained
debris or foreign material, but petitioners note they do have the right to reject a load in the event
GBSM is non-conforming. Pet. Br. at 12, Exh. A; Tr. at 84-89, 99-101. Petitioners further
stated they control the quality of the GBSM accepted at the facility by visual inspections and by
requesting Material Data Safety Sheets from any additional potential supplier prior to
contracting.
The operating manual also provides for quality control at the installation site, prescribing
methods for grading and filling the subbase and applying and compacting the EDC. Hearing
Exh. 2 at 6. Petitioners state they will only sell and install EDC where it will wear well. Reply
at 10.
Limitations on the Application of EDC
The Agency argues a finding of inapplicability of the Board’s solid waste rules is not
warranted. Ag. Resp. at 4, 10. Regarding the application of GBSM, the Agency states that
petitioners have not adequately researched all relevant and applicable roadway construction
standards and guidelines. Ag. Resp. at 5. Ms. Powles testified at hearing that the only
limitations for the application of GBSM would be high volume roadways. Tr. at 72-73. The
Agency states, however, that the Illinois Department of Transportation (IDOT) has specific
standards for road construction that the petitioners have not addressed. Ag. Resp. at 5. The
Agency claims the record contains no evidence that EDC can meet IDOT standards.
Id
. at 9.
The petitioners state they did not discuss IDOT’s standards because they apply to
recycled asphalt pavement (RAP), not EDC. The petitioners state that the two pavements, RAP
and EDC, are not the same. Further, petitioners assert, IDOT has promulgated no standards or
restrictions for EDC, nor has any other regulatory or technical entity. Reply at 6. Petitioners
state that even if IDOT standards were applicable, only state-owned roads must conform to
IDOT standards; township roads, driveways, and parking lots are not subject to IDOT standards
and would be appropriate places for the installation of EDC.
Id
. at 7.
The petitioners also state they will not promote EDC for installation on feedlots. Tr. at
51. While petitioners maintain that there is no harmful exposure to livestock from EDC,
petitioners will not market EDC for feedlots so as to allay any concerns about potential health
effects.
Id
. Petitioners also do not intend to use GBSM in hot mix asphalt. Tr. at 52.
Operating Manual and Alternative Suppliers
8
The Agency also remains skeptical about the petitioners’ operating manual. At hearing
Ms. Powles testified the petitioners hoped to use at least one other supplier of GBSM, yet was
unsure about whether she would have to change the operating manual, which was tailored
specifically for interaction with the IKO facility. Ag. Resp. at 6. The Agency states that the
petitioners’ intention to use other suppliers of GBSM is even more of a reason not to rely on the
solid waste determination, based exclusively on information and data provided by IKO, to
characterize the GBSM. Ag. Resp. at 6. Testimony shows that Owens Corning is the only other
potential supplier of GBSM in Illinois, but, the Agency contends, the petitioners have not
confirmed that Owens Corning or any other company would be a supplier. Ag. Resp. at 6-7.
The fact that the operating manual may be revised to reflect, for example, changes in the
way petitioners schedule GBSM pick ups is not related to any environmental issue or concern
about performance of EDC. The petitioners state the Agency’s arguments about the operating
manual are irrelevant and not related to any environmental concern. The petitioners state
nothing prevents them from changing or improving their production process. Reply at 7-8.
According to the petitioners, they have not yet identified an additional supplier because
they cannot operate until they are granted a finding of inapplicability, an adjusted standard, or
comply with the Board’s solid waste regulations. Petitioners state they do want to be able to
purchase from other suppliers, but that the identity of a potential additional supplier is irrelevant
as long as any GBSM purchased complies with the definition of GBSM in the granted relief.
Reply at 8-9. Further, petitioners state they would review Material Data Safety Sheets before
entering into a contract with any other GBSM manufacturers. Tr. at 105.
Thickness and Performance
The petitioners assert they have created two test sections of Eclipse Dust Control. The
first one was installed in 2000 in Harvard, Illinois. Tr. at 41. The second site was done
approximately two years ago in the Heartland Township, McHenry County. Petitioners state
there has been no cracking in the test applications. Tr. at 42. The petitioners state that blacktop
or concrete roadway can crack during the contractions and expansions caused by the changes in
weather, but EDC has not cracked in the four-year-old test section. Tr. at 48.
The Agency was also concerned with the petitioners’ request that the adjusted standard
contain no specific thickness specification. The Agency states this again deviates from the solid
waste determination letter that specifies an applied thickness of 5-6 inches. Ag. Resp. at 7. The
Agency also notes Ms. Powles’ testimony that test sections of EDC performed very well in full
sun, but broke up slightly in shaded areas. Tr. at 41-43, 95. The Agency states that for these
reasons, the Board should not grant the petitioners’ requested relief.
The petitioners state the Agency has identified no environmental concern or other reason
to deny the requested relief because of Ms. Powles’ testimony that EDC slightly breaks up in
shaded test areas. Reply at 10. Petitioners state they believe they will be able to develop EDC
that can be used in shady places and the requested relief should not be denied simply because
petitioners are continuing to develop their product. Reply at 10. Petitioners state they would
only sell and install EDC where testing has demonstrated it will wear well. Reply at 10.
9
Third Party Installation
Petitioners state they have not yet sold EDC for installation by the customer. Pet. Br. at
13. However, petitioners claim they could foresee customers, such as townships or small paving
contractors, that would purchase EDC for their own installation. Therefore, petitioners would
like to have the option to sell EDC without installation.
Id
.
In response to the petitioners’ statement that they would allow customers to purchase
EDC and install it themselves, the Agency states that use also falls outside of the specific
parameters of application provided for by the solid waste determination. Ag. Resp. at 10. The
Agency states the 1993 solid waste determination language does not account for the possibility
that a third party could perform the installation.
Id
.
The petitioners reply that the Agency’s May 1993 letter specifically refers to the use of
GBSM at an “end user’s site.” According to the petitioners, the plain language of the letter
demonstrates that the letter is not limited to IKO. Reply at 3.
Environmental Benefit
Petitioners contend the primary factor that justifies their requested relief is environmental
benefit. Pet. at 11. Petitioners assert that the GBSM recycling process provides numerous
environmental benefits by recycling clean GBSM into a useful paving product, which the
petitioners claim itself has environmental benefits. Accordingly, petitioners argue that the
factors relating to the Eclipse Dust Control production process are substantially and significantly
different than those pertaining to activities conducted by pollution control facilities that are
regulated under the Section 807 regulations. Pet. at 12.
Petitioners argue that granting the requested relief will not result in any adverse impact
on health or the environment. Pet. at 13. Rather, petitioners argue that the requested relief
would have a positive impact on the environment. Petitioners contend that clean GBSM, which
would otherwise require landfilling, will be recycled into a useful paving product which provides
benefits such as noise and dust suppression.
Id
. Petitioners state that no chemicals are added
and there are no residuals from the process. Tr. at 24.
Other States Allow the Use of GBSM for Paving Applications
At hearing, the petitioners discussed several additional issues to justify their request for
an adjusted standard. According to Mr. Foulkes of IKO Chicago, other states have been
allowing the use of GBSM for paving applications since the early 1990s. Pet. Br. at 6-7. At
hearing, Mr. Foulkes testified that Delaware, Indiana, and Ohio approved the use of GBSM in
the early 1990s, and to date no state has since revoked its approval. Pet. Br. at 7; Tr. at 147. Mr.
Foulkes stated that all of its products out of IKO’s Wilmington, Delaware and Franklin, Ohio
facilities are recycled. Tr. at 147. However, because Illinois has not allowed the use of GBSM
for paving applications, IKO Chicago is forced to landfill most of its GBSM. Pet. Br. at 7.
10
GBSM is Non-Toxic and Non-Hazardous
The petitioners also state that GBSM is non-toxic and not an environmental concern. Pet.
Br. at 8. According to the petitioners, GBSM is not hazardous because it is not a listed waste,
derived from any hazardous waste treatment, or a mixture of any hazardous waste. Pet. Br. at 9.
The petitioners state that according to IKO’s January 29, 1993 submittal to the Agency, the
analytical results of Toxicity Characteristic Leaching Procedure (TCLP) tests were below the
regulatory criteria for all parameters. Pet. Br. at 8; citing 40 C.F.R. Part 261. Mr. Foulkes
testified that the ingredients used by IKO have not changed appreciably since that time. Tr. at
144. The only difference is essentially the shape of the shingles. Pet. Br. at 9. The TCLP
analysis for the GBSM in 1993 showed no toxicity under the Resources Conservation Recovery
Act (RCRA) standards.
BOARD DISCUSSION
The Board finds that the information that the petitioners provided in the petition, at
hearing, and in post-hearing briefs, when applied using the approach provided by the Court in
AFI, demonstrates that GBSM is not a waste as used by the petitioners to produce EDC.
Because any solid waste determination must be fact and product specific, the Board begins by
discussing the issues raised by the parties at hearing and in post-hearing briefs. Next, the Board
reviews past Board decisions and recent Illinois caselaw regarding the applicability of Board
solid waste rules. Finally, the Board makes a solid waste determination regarding GBSM as
used by the petitioners to produce EDC.
Facts Discussed at Hearing and in Post-Hearing Briefs
The Board could not have reached a solid waste determination without the information
and testimony presented at hearing. The Board finds the Agency’s 1993 solid waste
determination is not directly applicable because it was issued by the Agency and because IKO
Chicago, not the petitioners, was the recipient. Nonetheless, although not directly applicable, the
Board finds the solid waste determination letter instructive. In 1993, the Agency found that
GBSM used in the same manner as the petitioners propose here was not a waste based on the
toxicity and performance data provided by IKO. The petitioners entered the same data into this
record. The petitioners state this data is representative of all GBSM.
The petitioners have also supplemented the record with information regarding two test
sites installed in 2000 and 2002. According to the petitioners, the sites have held up well under
frequent use, only slightly breaking up in some shady areas. The petitioners’ state the surface
reduces both noise and dust. The petitioners also state that there is a market for EDC, pending
the outcome of this petition.
The Board finds that the petitioners have adequately shown that their process will not
cause environmental harm. The petitioners have provided documentation of TCLP tests that
show the GBSM that IKO Chicago produces is not a hazardous waste. Further, the application
of EDC actually results in the environmental benefits of reduced dust and noise pollution as well
as recycling a material that would otherwise be landfilled.
11
Applicable Board Decisions and AFI
By way of background, the Board will first outline its own decisions, then discuss AFI in
detail.
Board Decisions
The Board’s past waste rulings have focused on the actions and intentions of a material’s
generator. The Board has interpreted the meaning of “other discarded material” in other
instances where material that has been recovered and reused in determining whether special
waste hauling regulations apply that material. Safety-Kleen Corp. v. IEPA, PCB 80-12 (Feb. 7,
1980);
aff’d
IEPA v. PCB and Safety-Kleen Corp., No. 80-650 (2nd Dist. 1981); Southern
California Chemical Co., Inc. v. IEPA, PCB 84-51 (Sept. 20, 1984); R.R. Donnelley & Sons Co.
v. IEPA, PCB 88-79 (Feb. 23, 1989). In those cases, the Board found that since the petitioners,
the generators of the material, maintained control over the material in question, and the material
was to be reused and not discarded, it was not a waste subject to special waste hauling
requirements.
In R.R. Donnelley, on a motion to reconsider, the Board further concluded that even
though R.R. Donnelley did not maintain complete control over the material (used oil) it was
generating, it did have knowledge to whom it was selling the used oil, and the used oil was
subsequently sent directly for reuse without further treatment, processing or storage. The Board
determined that the material was not a solid waste.
In the special waste cases discussed above, the Board decided that the material was not a
waste or solid waste based on the fact that the material was generated by the company using the
material and was part of its ongoing process. In contrast, the wood material utilized in Wood
Energy, was not generated by Wood Energy as part of its manufacturing process. Therefore, the
Board found the produced wood fuel was and continued to be a solid waste and that Wood
Energy was a solid waste management facility governed by the Part 807 regulations.
In re
Petition of Wood Energy Partners, L.P. for an Adjusted Standard from 35 Ill. Adm. Code 807 or,
in the alternative, a finding of inapplicability, AS 94-1 (Dec. 1, 1994)
The Board again considered the issue of whether a material being received by a facility is
either a solid waste or raw material in Illinois Power. Illinois Power, PCB 97-35, 97-36. In
Illinois Power, agricultural containers are processed into an alternate fuel used by Illinois Power
through a coordinated effort between Illinois Power and Resourceful Environmental Ideas, Inc.
(REI). A company called Tri-Rinse, Inc. triple rinses agricultural containers in accordance with
U.S. EPA and the Illinois Department of Agriculture guidelines. The containers are then
inspected, processed, and purchased by Illinois Power for use at the Baldwin Power Station.
Id
.
at 3.
In its analysis of the facts, the Board changed its approach slightly in distinguishing
Illinois Power from Wood Energy. In Wood Energy, the Board relied on the following factors in
determining the material at issue was a waste: (1) the material was customarily thrown away or
12
discarded; (2) the material was generated off-site and did not result from the petitioner’s own
processes; and (3) the petitioner planned to purchase the material from a third party. In Illinois
Power, the Board was persuaded by Illinois Power’s argument that the material was a “valuable
energy product” and exhibited no characteristics of being discarded when used as Illinois Power
proposed. The Board’s decision was more fact-specific than in Wood Energy, relying on the
following facts: (1) that Illinois Power did not process the containers on-site; (2) that the
materials were non-hazardous; and (3) that all of the parties involved, Illinois Power, REI, and
Tri-Rinse, had sufficient control over the materials to preclude unknown contamination from
entering into the materials. The Board concluded that the alternate fuel was not a waste.
AFI
The supreme court used yet another approach in AFI, focusing on the material’s end use
rather than the original generator’s action or intent. Alternate Fuels, Inc. v. IEPA, 2004 Ill.
LEXIS 1616 (2004). REI, the company involved in Illinois Power, changed its name to
Alternate Fuels, Inc. Alternate Fuels, Inc., v. IEPA, 337 Ill. App. 3d 857, 786 N.E. 2d 1063 (5th
Dist. 2003) (AFI I). AFI places triple-rinsed plastic agricultural containers into a granulating
machine that shreds the plastic into small pieces. AFI contracted with Illinois Power to provide
alternate fuel that meets certain specifications. AFI also contracted with its suppliers that they
provide any materials free of nonconforming items and that the materials are not hazardous.
Id
.
at 860. Suppliers had to provide AFI with test results showing that the materials meet the
required specifications. AFI also visually inspects the materials to check for compliance with the
agreement.
The supreme court did not rely on any Board precedent in finding that the materials AFI
handled were not a waste and that AFI was, therefore, not a pollution control facility. Giving the
applicable statutory language its plain and ordinary meaning, and giving effect to the
legislature’s intent, the court in AFI made two findings particularly applicable to the facts at
hand. First, the court compared AFI’s facility to the statutory definitions for “recycling center”
and “pollution control facility.” After comparing the two definitions, the court found that “AFI’s
facility retained more characteristics of a ‘recycling center’ than a ‘pollution control facility.’”
Next, the court expressly rejected the Agency’s argument, the same as the Agency argues
here, that “discarded” is defined solely from the viewpoint of the generator and that “any
material which is not being utilized for its intended purpose” of the generator is considered
“discarded.” Rather, the court looked at the Act’s various uses of the term “discarded material”
and determined that the Act focuses more “on the ‘material’ itself as it passes between entities”
rather than on the generator’s intended purpose of the materials. The court concluded that the
proper inquiry is whether the materials are returned to the economic mainstream.
After applying the facts in AFI, the court found the materials AFI uses are not discarded and,
therefore, not a waste. In affirming the appellate court, the supreme court held that AFI was not
a pollution control facility requiring a permit and would not require local siting approval. The
appellate court had stated in conclusion that “an interpretation of the Act in this manner best
supports the Act’s most basic purpose, protecting the environment of our state.” AFI I, 337 Ill.
App. 3d at 866.
13
Board Analysis
The Board recognizes, as both the petitioners and the Agency note in post-hearing briefs,
that the Agency has petitioned the Supreme Court for rehearing on AFI. Nonetheless, the
Supreme Court decision is precedential and binding on the Board unless and until it is modified
by the Supreme Court.
The Board finds AFI supportive of the petitioners’ request for a finding that GBSM is not
a waste. The Act defines “waste” as:
‘Waste’ means any garbage, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility or other discarded material,
including solid, liquid, semi-solid, or contained gaseous material resulting from
industrial, commercial, mining and agricultural operations . . . .” 415 ILCS
5/3.535 (2002).
Under the AFI analysis of whether something is a waste, the Board must first determine
whether GBSM is a “material,” and then whether it is “discarded.” According to the court in
AFI, while the legislature has not defined the term “discarded materials,” the legislature has
indicated what it is not:
“Recycling, reclamation or reuse” means a method, technique, or process
designed to remove any contaminant from waste so as to render such waste
reusable, or any process by which materials that would otherwise be disposed of
or discarded are collected, separated, or processed and returned to the economic
mainstream in the form of raw materials or products. 415 ILCS 5/3.380 (2002)
The Board finds that the petitioners, again like in AFI, are not removing any contaminant
from waste. In fact, no contaminants are removed from the GBSM at all. Therefore, the GBSM
is a “material.” Further, the Board finds that GBSM, like the alternate fuel in AFI, can be reused
and recycled and returned to the economic mainstream for sale as EDC. Because the petitioners
collect, process, and return GBSM to the economic mainstream in the form of a product called
EDC, the GBSM is not “discarded.”
The Board finds AFI shows that substantially different factors apply to the petitioners’
operation than the factors the Board relied upon in adopting the solid waste regulations at Parts
807 and 810 of the Board’s rules. Rather the petitioners’ facility has more characteristics of a
“recycling center” than a “pollution control facility.” For example, the Act defines a “recycling
center” as:
a site or facility that accepts only segregated, nonhazardous, nonspecial,
homogenous, nonputrescible materials, such as dry paper, glass, cans, or plastics,
for subsequent use in the secondary materials market. 415 ILCS 5/3.75 (2002).
14
Here, Jo’Lyn and Falcon have demonstrated that they purchase only nonhazardous,
nonspecial materials for subsequent use as EDC. The process removes no contaminants and
produces no residuals. Like the petitioner in Illinois Power, petitioners Jo’Lyn and Falcon have
also shown they maintain control over the quality of the materials they purchase and process
ensuring that no unknown contaminants enter the material. Therefore, based on the facts at hand,
the Board finds GBSM is not a discarded material, and therefore, not a waste when it is
processed into EDC and returned to the economic mainstream as a paving product. The Board’s
finding that GBSM is not a waste as used by the petitioners furthers a stated purpose of the Act.
Title V of the Environmental Protection Act provides:
It is the purpose of this Title . . . to promote the conservation of natural resources
and minimize environmental damage by . . . encouraging and effecting the
recycling and reuse of waste materials . . . . 415 ILCS 5/20(b) (2002).
In the interests of encouraging recycling and returning a material difficult to recycle into
the economic mainstream “in an environmentally friendly way,” as stated by Mr. Turley at
hearing, the Board finds that GBSM is not a waste as used by the petitioners to produce EDC.
Several factors are critical to the Board’s finding that GBSM is not a waste as it is used
by the petitioners. First, IKO Chicago has shown that the GBSM is not “hazardous” under the
Board’s Part 721 regulations. The petitioners’ contract for the purchase of GBSM with IKO
Chicago does not require the manufacturer to provide proof that the materials are not hazardous,
yet IKO Chicago has provided such proof in this proceeding. Therefore, the Board requires that
the petitioners must be able to show that any GBSM they accept does not meet the characteristics
of a “hazardous waste” under the Board’s Part 721 regulations. Second, the petitioners have
shown that EDC is to be used only as a paving product and that it performs as a cohesive,
durable roadbed. Third, the petitioners stated they use only “clean” GBSM. The term “clean”
means GBSM that is consistent post-production, pre-consumer material containing no asbestos
that is generated at the end of the manufacturing of roofing shingles, such as tabs or punchouts,
and miscolored or damaged shingles. The Board also notes that once the petitioners no longer
process and return GBSM to the economic mainstream in the form of a raw material or product,
the GBSM is then considered “discarded,” and thus, a waste.
ORDER
The Board finds that the GBSM the petitioners process to produce EDC to be used as a
paving product is not a waste. The Board grants Jo’Lyn and Falcon’s requested relief and
exempts the GBSM that the petitioners use to produce EDC at their Woodstock facility from the
Board’s solid waste regulations. The Board denies the petitioners’ alternative request for an
adjusted standard from the Board’s solid waste regulations as moot.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
15
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on April 7, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
