ORIG/NAL
RECEIVED
CLERKS OFFICE
AUG
012005
STATE OF
ILLINOIS
Pollution Control Board
BEFORE
THE POLLUTION CONTROL
BOARD
OF THE STATE
OF ILLINOIS
IN THE
MATTER OF:
)
PETITION OF WASTE MANAGEMENT
OF
)
ILLINOIS,
INC., FOR AN ADJUSTED
)
STANDARD
FROM
35
ILL. ADM. CODE
721
AND
FOR RCRA DELISTING UNDER
35
iLL.
ADM.
CODE 720.122 FOR TREATMENT)
RESIDUAL OF CID RECYCLING AND
)
DISPOSAL FACILITY BIOLOGICAL LIQUID
)
TREATMENT CENTER
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100
West Randolph Street
Suite
11-500
Chicago,
IL 60601
Donald J. Moran
Pedersen & Houpt
161
North Clark Street
Suite 3100
Chicago,
IL
60601
)
AS
05-07
)
(Adjusted Standard
—
Land)
PLEASE
TAKE
NOTICE
that
I
have
today
filed
with
the
office
of
the
Clerk
of the
Pollution
Control
Board
a
RECOMMENDATION
TO
PETITION
FOR
ADJUSTED
STANDARD,
copies
of
which are herewith served upon
you.
Respectfully submitted,
Division of Legal
Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated:
July 29,
2005
AGENCY,
Johr(J. Kim
Assistant Counsel
Special Assistant Attorney
General
BEFORE THE
POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
IN
THE MATTER OF:
)
AUG
012005
PETITION OF WASTE
MANAGEMENT OF
)
Contr~j
Board
ILLINOIS,
INC., FOR AN ADJUSTED
)
STANDARD
FROM
35
ILL. ADM. CODE
721
)
AS
05-07
AND FOR RCRA DELISTING
UNDER
)
(Adjusted Standard
—
Land)
35
ILL.
ADM. CODE 720.122 FOR TREATMENT)
RESIDUAL OF
CID RECYCLING AND
DISPOSAL FACILITY BIOLOGICAL LIQUID
)
TREATMENT CENTER
)
RECOMMENDATION TO PETITION FOR ADJUSTED STANDARD
NOW
COMES the Illinois Environmental Protection Agency
(“Illinois EPA”), by one of
its
attorneys,
John
J.
Kim,
Assistant
Counsel
and
Special
Assistant
Attorney
General,
and,
pursuant
to
35
Ill.
Adm.
Code
104.416,
hereby
submits
a
recommendation
to
the
Illinois
Pollution
Control
Board
(“Board”)
in
response to
the petition
for adjusted standard (“petition”)
filed by Waste Management ofIllinois,
Inc.
(“WMII”) (“Petitioner”).
For reasons stated in
detail
below,
the
Illinois
EPA
recommends
that
the
Board
deny
the
adjusted
standard
request.
In
support ofthis recommendation, the Illinois EPA states as follows:
I.
INTRODUCTION
The
Petitioner
is
seeking
an
adjusted
standard
delisting
a
lime-conditioned
filter
cake
(“treatment
residual”)
that
results
from
treatment
at the
Biological
Liquid
Treatment
Center at
generated
at
WMII’s
CID Recycling
and Disposal
Facility (“CID”).
In
its
petition,
WMII
asks
the Board to
incorporate
a document
(“Delisting Request”) previously submitted to
the Board
in
January 2005
as part of a
different
adjusted
standard proceeding (AS
05-03).
The Illinois
EPA
does not object
to this request, and has considered the Delisting Request as part ofpreparing this
recommendation.
1
To
obtain
a
positive
ruling
from the Board,
the Petitioner
must
satisfactorily
address all
factors
set
forth
in
Section
104.406
of the Board’s
procedural
regulations
(35
111.
Adm.
Code
104.406) as well as in
Section
28.1(c) of the Illinois
Environmental Protection
Act
(“Act”) (415
ILCS
5/28.1(c)).
II.
SECTION
104.406 FACTORS
For
the
reasons
more
fully
set
forth
below,
the
Illinois
EPA
does
not
believe
the
Petitioner
has
satisfactorily provided
all
information
and/or justification
required
by
Section
104.406 ofthe Board’s procedural rules.
A.
Section
104.406(a)
—
Standard from which adjusted
standard is sought
The Illinois EPA does not take issue with the Petitioner’s statements on this topic.
B.
Section
104.406(b)
—
Regulation of general applicability
The Illinois EPA does not take issue with
the Petitioner’s
statements on this topic.
C.
Section 104.406(c)
—
Level of justification
The
Illinois
EPA does not
take
issue
with
the Petitioner’s
statement as to
the
required
level ofjustification.
However, the Illinois
EPA does not
believe that the justification has been
met, in
that the Petitioner has not provided sufficient information and argumentto meet
that level
ofjustification.
D.
Section 104.406(d)
—
Petitioner’s activities
The Illinois EPA does not take issue with
the Petitioner’s statements on this
topic.
E.
Section
104.406(e)
—
Efforts necessary to comply
The Illinois EPA does not take issue with
the Petitioner’s statements on this topic.
2
F.
Section
104.406(1)
—
Proposed
adjusted
standard
The
Illinois
EPA does not
believe the proposed adjusted standard should
be
granted by
the Board
in
its
present
form,
as the Petitioner has not
met
the required level ofjustification
to
warrant issuance ofthe adjusted standard.
G.
Section
104.406(g)
—
Quantitative and qualitative
impact on the environment
The Illinois
EPA does
not
believe the Petitioner has presented
a
sufficient
and
complete
risk assessment in its petition
and Delisting Request.
H.
Section
104.406(h)
—
Justification of the proposed
adjusted standard
The
Illinois
EPA
does
not
believe
the
Petitioner
has
met
the
required
level
of
justification.’
As the Petitioner noted, there are three criteria that must
be satisfied, pursuant to
Section
720.122 of Title
35
of the Illinois
Administrative
Code
(35
III.
Adm.
Code
720.122).
The Illinois
EPA
agrees
with
the Petitioner
that
the
first
two
criteria have been
satisfactorily
addressed.
It
is
the
third
criterion, that
the petitioned
waste
not
exhibit
any
other factors
that
could cause the waste to be a hazardous waste, that the Illinois EPA finds has not been met.
To
demonstrate
compliance
with
the
third
criterion,
the
Petitioner
preformed
risk
assessment
modeling
in
accordance with
the EPA Delisting
Program:
Guidance Manual for the
Petitioner.
Specifically,
a risk
assessment
was conducted
using
the Delisting
Risk
Assessment
Software
(“DRAS”)
—
Version
2,
which
is
the
standard
model
used
by
the
United
States
Environmental
Protection
Agency
(“USEPA”)
for its
hazardous waste
delistings.
The
DRAS
model was used to
model
both
a
groundwater pathway and a surface pathway.
Illinois
EPA and
‘In addition to the concerns regarding the justification ofthe proposed adjusted standard, the
copy of the
Delisting
Request
provided
to
the
Illinois
EPA
by
the
Petitioner
does
not
contain
a
signature
on
the
Certification Statement as
found in
Section
2.0.7,
p.
5.
If the original ofthe
Delisting Request filed with
the Board does contain
a signed statement, then there is
no
problem.
However, the
Illinois
EPA requests
that
the
Board review
the Certification
Statement
to check for a
signature;
if no
signature
is found,
then
this omission (as otherwise required by
35
Ill.
Adm.
Code 720.1220)02))
is another basis for the
Illinois
EPA’s recommendation that
the petition be denied.
3
USEPA
have traditionally considered waste to be
acceptable for delisting if the foil-carcinogenic
Hazard
Index
(“HI”)
is
less
than
1.0,
and
the
carcinogenic
risk
is
less
than
106.
The DRAS
modeling conducted
by
WMII showed
a
HI of 0.02
with
carcinogenic
risk of 1.53x10~for the
groundwater
pathway; and
a
HI of 0.0552
with
a carcinogenic
risk of l.83x106
for the
surface
pathway.
WMII
concludes that
these
risks
are
acceptable for delisting.
However, there were
problems with
the methodology used.
In
Section
7.5
on
page
46
of the Delisting
Request,
WMII indicates
that
several
metal
parameters
were
excluded
from
calculation
of the
Hazard
Index
based
on
those
constituents
appearing
to
be
below
background
soil
levels
found
in
a
United
States
Geological
Survey
document.
The background numbers identified in
Table
12 on
page 46
appear
to
be
very
high
compared to background concentrations found in Illinois as indicated in the “TACO” Rules at 35
III. Adm.
Code 742, Appendix A,
Table
G.
In fact, most of the numbers found in
Table
12
are 2
or more orders of magnitude higher than the “Counties
Within Metropolitan
Statistical
Areas”
column
of
35
III.
Adm.
Code
742,
Appendix
A,
Table
G.
When
compared
to
the
TACO
background
numbers,
several
of the constituents
in
the
waste,
which
are
excluded
from
the
calculation of the cumulative Hazard
Index, are above background levels.
Of particular
concern
is
arsenic,
which
was
detected
in
the
petitioned
waste
at
a
concentration of 80
mg/kg.
The proposed “background” number for arsenic is
97
mg/kg.
Since
the detected concentration
is
less
than the “background”
concentration, it was eliminated
from
the cumulative
Hazard
Index
calculation.
However,
a
check of the TACO background numbers
shows that arsenic typically occurs in
a range of 11.3
mg/kg (non CMSA)
to
13
mg/kg (CMSA).
Thus,
arsenic
does
indeed
appear
in
the
waste
higher
than
background,
and
should
definitely be included
in the HI calculation.
Note that the Hazard
Quotient calculated
for arsenic
4
(Table
11)
is
2.26.
It would
cause the cumulative
HI
to
exceed
1.0
by
itself.
Furthermore,
the
practice ofexcluding
a constituent because it is below “background” is not
sound practice from
a
risk-assessment
standpoint.
Regardless
of whether the parameter
is
above or
below
naturally
occurring levels,
it does contribute
to
the overall
risk
of the waste.
The Illinois
EPA does not
believe USEPA
allows this practice
in
its
review ofhazardous waste
delistings,
and
accordingly
such practice should not be allowed in Illinois either.
It appears as though the Petitioner soughta
reference
document
with
very
high
background
levels,
at
least
as
compared
to
levels
more
readily
accepted and
utilized
in
Illinois.
The prudent course
to
take would
be
to
use the most
conservative
levels when assigning background levels, and
in this
situation the TACO levels
are
certainly more conservative
and therefore should be used.
Another
issue
is that,
as
previously indicated, for purposes of delisting hazardous waste,
Illinois
EPA
and USEPA have traditionally considered a cancer risk
of 106
to be
the maximum
acceptable risk.
The petition repeatedly refers
to an
“acceptable range” for cancer risk of
1
o4
to
106,
and
ultimately concludes that
the results of 53x104
(groundwater) and
1.83x106
(surface)
are
acceptable.
The Illinois
EPA previously conveyed this
concern
to
WMII
in
September of
2004.
In response,
WMII
took
the
step of using
the Pollutev6
model
to
model
a
Subtitle
D
disposal
scenario rather than the unlined
landfill assumed
by the DRAS
model.
The assumption
in
this
modeling
was
that
leachate
from
the
waste
was
present
at
the
maximum
detected
concentrations at a depth of
1
foot
above
the liner system.
The liner system
modeled
consisted
of a
geomembrane
liner overlaying
3
feet of clay.
The concentrations directly below
the liner
from this model
were then input
into the
DRAS
model
as initial
concentrations for modeling the
groundwater
pathway.
With
this
modification,
the
aggregate
carcinogenic
risk
predicted was
reduced to
1.91xl06, which
is still
in excess ofthe lo6cutoffnormally
accepted.
5
Therefore,
for the reasons set forth above, the Petitioner has not
met the third criterion
for
justification
in
that
the methodology
and
assumptions
used in
the
risk
assessment
were
flawed.
The
Board
should
conclude
that
the
Petitioner
has
failed
to
justify
the
proposed
adjusted
standard.
I.
Section
104.406(i)
—
Consistency with federal law
The Illinois EPA does not
take issue with the Petitioner’s statement on this
topic.
J.
Section 104.406(j)
—
Hearing
The Illinois EPA does not
take issue with
the Petitioner’s statement on this topic.
K.
Section
104.406(k)
—
Supporting documents
The Illinois EPA does not
take issue with
the Petitioner’s statements on this topic, except
to
note
that
the concerns described above regarding the content
and
conclusions of parts
of the
Delisting Request are incorporated here.
IV.
SECTION 28.1(C) FACTORS
The Petitioner did not specifically address the four criteria listed
in
Section 28.1(c) ofthe
Act,
and
therefore
the Illinois
EPA cannot directly respond
to
what
the Petitioner would
have
offered
to
address the criteria.
The Board
should
therefore
find
that,
as to
at least three of the
criteria, the Petitioner has failed to adequately prove the listed requirements.
A.
Factors
relating to Petitioner are different than those
relied on by the Board
The
Petitioner
did
not
specifically
address
this
criterion.
The
Illinois
EPA
can
only
assume
that
the
economic
hardship described by
the Petitioner if the waste
in
question
is
not
delisted
would
constitute
the
factor
that
is
substantially
and
significantly
different
from
the
factors relied on
by
the Board
in
adopting
the
general
regulation.
However, there seems
little
doubt
that
the
Board
took
economic
factors
into
consideration
when
adopting
the
general
6
regulations.
There
is
little
else
in
the petition
that
could ostensibly be
offered
up
to
prove
this
requirement.
B.
Existence of factors that justify an
adjusted standard
The Petitioner did
demonstrate that there may be
higher costs associated with compliance
alternatives.
But, that
demonstration alone does not validate the economic hardship factor itself,
and
as noted above, that
factor does not meet
the requirement found in
Section
28.1 (c)(i) of the
Act.
C.
Adverse environmental or health
effects
As
described
in
more
detail
above,
the
Illinois
EPA
identified
flaws
in
the
risk
assessment provided by the Petitioner
and
therefore the Petitioner has failed
to
adequately prove
that there will be no adverse health effects.
D.
Consistency with federal law
The Illinois EPA
does not take issue with the Petitioner’s statement on this
topic.
7
V.
CONCLUSION
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that the Board deny the Petitioner’s request for an adjusted standard.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: July 29, 2005
This filing submitted
on
recycled
paper.
8
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law, hereby certify that on
July 29,
2005, I served
true
and
correct
copies of a
RECOMMENDATION TO
PETITION FOR
ADJUSTED
STANDARD,
by
placing
true
and
correct
copies
in
properly sealed
and
addressed
envelopes
and
by
depositing
said
sealed envelopes
in
a U.S.
mail drop box
located within Springfield,
Illinois, with
sufficient
First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M.
Gunn, Clerk
Donald J. Moran
Illinois Pollution Control
Board
Pedersen & Houpt
James R. Thompson Center
161
North Clark Street
100 West Randolph Street
Suite 3100
Suite
11-500
Chicago, IL
60601
Chicago, IL 60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John .I.Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
