BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
RECEIVED
CLERKS OFFICE
)
N0V222005
STATE OF
ILLINOIS
R 06-08
Pollution Control Board
REGULATION APPLICABLE TO
)
(Site-Specific Rulemaking
--
Land)
SILBRICO CORPORATION
(35 lll.Adm.Code Part 810)
IN
THE
MA1TER OF:
PROPOSED
SITE SPECIFIC WASTE
)
To:
(See attached Service
List.)
NOTICE
OF
FILING
PLEASE
TAKE
NOTICE
that
on
this 22~day of
November 2005,
the
following
were
filed
with
the
Illinois
Pollution
Control
Board:
Petitioner Silbrico
Corporation’s
Response
to
Motion
for
Leave
to
File
a
Reply
and
Motion
for
Leave
to
File
Surreply, and Silbrico’s Surreply, attached and
herewith
served
upon
you.
Elizabeth
S.
Harvey
Michael
J.
Maher
SWANSON, MARTIN & BELL,
LLP
One IBM
Plaza,
Suite
3300
330
North Wabash Avenue
Chicago,
Illinois
60611
SILBRICO
CORPORATION
By~
One of
its
attorneys
Telephone:
(312)
321-9100
CERTIFICATE
OF SERVICE
I,
the
undersigned
non-attorney,
state
that
I
served
a
copy
of
Petitioner
Silbrico
Corporation’s
Response
to
Motion
for
Leave
to
File
a
Reply
and
Motion
for
Leave
to
File
Surreply,
and
Silbrico’s
Surreply
to
counsel
of
record
in
the
above-captioned
matter
via
U.S.
Mail
at One IBM
Plaza,
Chicago,
IL 60611
on
or
before 5:00 p.m.
on
November 22,
2005.
(~~f~ette
M.
Podlin
x
Under
penalties as provided
by
law
pursuant to 735 ILCS
5/1-109,
I
certify
that the statements set forth
herein
are true
and correct.
2049-002
SERVICE LIST
Case
No.
R 06-08
(Site-Specific Rulemaking
--.
Land)
Mark V.
Gurnik,
Assistant Counsel
Illinois Environmental
Protection Agency
Division of Legal Counsel
1021
North Grand Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
Department of Commerce
and
Economic Opportunity
Office of Legal Counsel
620
East Adams Street
Springfield,
Illinois
62701-1615
Christopher P Perzan
Environmental
Enforcement
Office of the Attorney General
188 West Randolph Street
20th
Floor
Chicago,
Illinois
60601
John
Kittle,
Hearing
Officer
Illinois Pollution
Control Board
2125 South First Street
Champaign,
Illinois
61820
Office of Legal
Services
Illinois
Department of Natural Resources
524 South Second Street
Springfield,
Illinois
62701-1787
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOAREF!OECEIVED
LERK S OFFICE
INTHEMATTEROF:
)
NOv
2220
)
PROPOSED SITE SPECIFIC WASTE
)
R
06-08
p964TE OF ILLINOIS
REGULATION APPLICABLE
TO
)
(Site-Specific RuleR
kW~0Da~ak~oar~g
SILBRICO CORPORATION
(35 lll.Adm.Code Part 810)
RESPONSE TO MOTION
FOR LEAVE TO FILE A REPLY AND
MOTION
FOR LEAVE TO
FILE SURREPLY
Petitioner SILBRICO CORPORATION
(“Silbrico”), by
its
attorneys Swanson,
Martin
& Bell,
LLP, hereby
responds to the Attorney General’s motion
for
leave
to file
a
reply.
As
part of its
response,
Silbrico seeks leave to file the attached surreply.
1.
On
November 3,
2005, the Attorney General filed
a
motion
for
leave to file
a
reply
to
Silbrico’s
response
to
the
Attorney
General’s
motion
to
dismiss
this
petition
for
site-specific rule.
Sllbrico
received that motion
on
or about November 10,
2005.1
2.
The Attorney General
seeks leave
to file
a
reply to Silbrico’s
response.
The
Attorney
General
asserts
that
Silbrico’s
response
“appears
to
change
the
basis
for
the
Petition,”
and thus seeks to respond to that alleged change
in
rationale.
3.
Silbrico disagrees that its
response in
any way
changed the
basis for the
site-
specific petition.
However,
Silbrico has
no objection
to the
filing
of the
Attorney
General’s
reply,
if Silbrico
is
allowed
to file the attached surreply.
4.
The
surreply
is
necessary
for
Silbrico
to
address
the
arguments
in
the
Attorney
General’s
reply.
In
addition
to
misunderstanding
Silbrico’s
position,
the
reply
includes
additional
arguments
not
made
in
the
motion
to
dismiss.
Silbrico
seeks
the
1
The Board’s
rules allow for a response
to
a motion
within
14 days of
service of that motion.
35 llI.Adm.Code
101.500(d).
Therefore, this
response
is timely
filed.
opportunity
to
respond
to
those
additional
arguments.
Silbrico
will
be
prejudiced
if
it
cannot
respond to the Attorney General’s claims.
5.
Silbrico
agrees
with
the
Attorney
General
that
the
filing
of
the
reply
and
Silbrico’s
surreply
will
“ensure
that
the
Board
has
the
benefit
of
a
full
and
complete
discussion of the
issues.”
Therefore,
Silbrico
has no
objection
to the filing of the Attorney
General’s
reply,
if Silbrico
is
similarly
allowed
to file
the
attached
surreply.
If the
Board
decides
not
to allow
Silbrico
to file
the
surreply,
Silbrico
objects
to the Attorney General’s
motion
for
leave to file
a
reply.
Respectfully submitted,
SILBRICO CORPORATION
By:
Dated:
November 22,
2005
Elizabeth
S.
Harvey
Michael
J.
Maher
Swanson,
Martin
& Bell,
LLP
One IBM
Plaza,
Suite 3300
330 North Wabash Avenue
Chicago,
Illinois
60611
Telephone:
(312) 321-9100
2
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
~ED
NOV
222005
IN
THE
MATTER OF:
)
STATE OF ILLINOIS
Pollution Control Board
PROPOSED
SITE SPECIFIC WASTE
)
R 06-08
REGULATION
APPLICABLE TO
)
(Site-Specific Rulemaking
--
Land)
SILBRICO CORPORATION
(35
lll.Adm.Code Part
810)
SILBRICO’S SURREPLY
Petitioner
SILBRICO
CORPORATION
(“Silbrico”),
by
its
attorneys
Swanson,
Martin
&
Bell,
LLP,
hereby
submits
its
surreply
to
the
Attorney
General’s
reply.
The
filings
address
the
Attorney
General’s
motion
to
dismiss
Silbrico’s
petition
for
site-
specific rule.
ARGUMENT
The Attorney General claims the
Board lacks
authority to grant
Silbrico’s
petition
for site-specific rule,
regardless of whether
Silbrico seeks
to
classify
its
waste
streams
as
“clean
construction
and
demolition
debris”
(CCDD),
or
as
similar
to
CCDD.
Once
again, the Attorney General’s arguments misunderstand
Silbrico’s
position
and,
in
some
cases,
show a
lack
of understanding of the
Board’s processes.
There
are,
fortunately,
three
issues
on
which
the
Attorney
General
and
Silbrico
are
in
agreement.
First,
Silbrico’s
off-specification
perlite and fugitive
perlite
are indeed
wastes.1
Second,
those
two
waste
streams
do
not
fall
under the
definition
of CCDD.
1
The Attorney General
improperly addresses,
in
its
reply,
several issues
from the pending
variance
proceeding.
Si/brico Corporation
v.
IFRA,
PCB
06-11.
Addressing
the
variance
petition
in
the
context of
this site-specific
proceeding
is
improper
and
irrelevant,
and
all
references to the variance
petition
should
be
ignored.
However,
Silbrico
must
address
the
substantive
claim
raised
by
the
Attorney
General.
The
Attorney
General
asserts
that Silbrico
is
“confused
as
to
why wastes
are
required
to
be
disposed
of
at
landfills
or other appropriate facilities.”
Reply,
at footnote
1.
It
is the Attorney General
who
is
confused.
The
references
in
the
amended
petition
for
variance
are
made
in
response
to
the
Board’s
inquiry
regarding
regulatory
provisions
which
require
the
landfilling
of
industrial
process
wastes
and
pollution
Third,
regulations
adopted
by
the
Board,
pursuant
to
Section
27
of the
Act,
must
be
consistent
with
the
provisions
of the
Act.
Unfortunately,
those
are
apparently the
only
issues
on
which
the
Attorney
General
and
Silbrico
agree.
The
Attorney
General
continues to misunderstand
or mischaracterize
Silbrico’s
position.
The
issue
here
is
really
quite
simple:
does
Section
27(a)
of
the Act
allow
the
Board to
hear petitions for site-specific rule which
seek approval of an alternate
method
of disposal
of
a
waste,
where that alternate
method
is
established by statute?
Silbrico
believes that Section 27(a) does
indeed give the
Board that authority.
Section 27(a)
limits
the
Board’s
rulemaking
authority
to “substantive
regulations
as
described
in the Act.”
In
Section
22 of the Act, the
legislature
has granted
the
Board
broad
authority to
adopt regulations to
promote the
purposes of Title
V:
Land
Pollution
and
Refuse
Disposal.
(See
415
ILCS
5/22.)
New
Section
22.51
of
the
Act,
which
establishes
requirements for
“CCDD fill
operations”
is
part of Title V
of the
Act.
Thus,
the
Board
has the
specific authority to adopt regulations
relating to CCDDfUtoperations.
As
stated
in
Section
27(a),
the generality of the
Board’s
authority
to
adopt
regulations
“as
described
in
the
Act”
is
“limited
only
by
the
specifications
of
particular
classes
of
regulations elsewhere
in
this Act.”
(415
ILCS 5/27(a).)
Silbrico’s
requested
site-specific
rule seeks to allow the
disposal of
its
two perlite waste streams
in
a
“clean
construction
and
demolition
debris
operation which
has obtained the
necessary
authorization and/or
permit pursuant to
Section
22.51
of the Act.”
(See
Petition for
site-specific,
p.
3,
with
modification
explained
in
footnote 2,
page 4
of Silbrico’s
response
in
opposition to the
control
wastes.
Silbrico’s
statements
in
its
amended
variance
petition
address
the
apparent
lack
of
a
specific
regulation which
requires the landfilling
of such wastes.
The Attorney General
has
not pointed
to
any
regulation
with
that
requirement.
Additionally,
the
Attorney
General
fails
to
note
that
Silbrico
specifically
states that “there is no dispute...that these two waste streams must currently
be
so disposed.”
Amended
petition
for variance,
page
3.
2
motion
to
dismiss.)
Silbrico’s
requested
site-specific
rule
falls
within
the
Board’s
rulemaking authority
under Sections
22 and 27(a) of theflAct.
The Attorney General continually asserts that the
requested site-specific
rule is in
conflict with
the
Act, but never explains
or demonstrates that conflict.
Saying that there
is
a
conflict
between
the
two does
not
create
a
conflict.
Indeed,
there
is
no
conflict.
Silbrico seeks
a
rule which, if granted, would allow it to dispose of two waste streams
in
a regulated CCDD operation.
Regulated
CCDD operations are specifically provided for,
and
regulated
by,
Section
22.51
of the
Act.
Silbrico
contends that
its
two perlite
waste
streams
are
similar
to
CCDD,
so
that
those
wastes
can
be
safely
disposed
of
at
a
CCDD operation.
There is
no conflict between the proposed rule and the Act.
The
Attorney
General
apparently
misunderstands
the
category
broadly
termed
site-specific rules,
when
it claims that Silbrico’s
requested
rule
“really
isn’t
site-specific”
because
it does
not
identify or limit
disposal to any specific
disposal
site.
The category
of rules
known
as
“site-specific”
rules
is
based
upon
the
second
sentence
of
Section
27(a),
which
specifically
allows
the
Board to
“make different
provisions
as
required
by
circumstances
for
different
contaminant
sources.”
(415
ILCS
5/27(a)
(emphasis
added).)
Thus,
a “site-specific” rule
is not
always technically site-specific
in
the
sense of
one
physical
disposal
site:
it
is
“site-specific”
in
the
sense that
it applies
only to
one
“contaminant source.”
Here,
Silbrico seeks
a
rule which
applies ppjy to the
two perlite
waste
streams
from
Silbrico’s
facility
in
Hodgkins,
Cook
County,
Illinois
--
a
“contaminant source.”
(See Petition
for site-specific,
p. 3, with modification
explained
in
footnote 2,
page 4
of Silbrico’s
response
in
opposition
to the
motion
to dismiss.)
This
3
request
is
well
within
the
scope
of
the
Board’s
Section
27(a)
authority
to
adopt
a
rulemaking
a “different
provision” for “different contaminant sources.”
The Attorney General
also spends
almost
a
whole page
claiming that somehow
this proposed
rule, applicable only to Silbrico’s
two waste streams from
Silbrico’s facility,
will
cause
an
explosion
of
other waste
generators
improperly
using
CCDD
operations
for
disposal.
(Reply,
p.
4.)
With
all
due
respect, the Attorney
General
has apparently
confused
Silbrico’s
request for
a
site-specific
rule
with
enforcement
issues
which
may
arise
as
a result of others, improperly and without authorization,
using
CCDD operations
for disposal of non-CCDD.
The Attorney General’s experience
in
enforcement
is simply
irrelevant
to
the
issue
here:
does
the
Board
have
the
authority
to
grant
Silbrico’s
proposed
rule?
There have
been
no
claims,
to
Silbrico’s
knowledge,
that
Silbrico
has
somehow violated
any
provision
of
the Act
or the
regulations.
Whether or
not
others,
unrelated
to Silbrico,
ignore
the
provisions
of the
Act and
regulations has
no bearing
on
the
Board’s authority to grant the
requested
rule.2
Perhaps
the
Attorney
General’s
curious
focus
on
others
using
the
“waste
exemption”
possibly granted
to Silbrico
grows out
of
its
continued
insistence on
calling
Silbrico’s
proposed
site-specific
rule
a
“waste exemption.”
Silbrico
is
not
requesting
a
“waste
exemption”:
it
is
requesting
a
rule that would
allow it
(and
only
it) to dispose of
two
specific
waste
streams
in
a
CCDD
operation
authorized
by
statute.
Simply
put,
Silbrico’s
request,
by
its
specific terms
and
proposed
language,
is
limited
to Silbrico’s
two
perlite
waste
streams.
It would
not
apply
to
any
other
generator
of
any
type
of
2
It
is inappropriate
to attempt to
link Silbrico’s
request with
any entity which
may dispose of waste
in
violation
of the Act.
Silbrico
has
complied
with
all
statutory
and
regulatory provisions,
and
is
indeed
pursuing
this
site-specific
in
order
to
remain
in
compliance
with
the
Act.
If the
requested
rule
is
not
granted,
Silbrico
will,
of
course,
continue
to
dispose
of
its
perlite
waste
streams
in
a
permitted
nonhazardous
landfill.
4
waste.
Silbrico
is puzzled by the Attorney General’s assertion that there
is
no provision
in
the Act which would
limit the
“new exemption”
to site-specific decisions
made
by the
Board.
The Attorney
General
is
simply
incorrect.
This
is
a
request for
a
site-specific
rule.
If granted,
it would
apply
ONLY to Silbrico,
and
not to others.
The requested rule
would
not
create
a
broad
“waste
exemption.”
Any
other generator
attempting
to
use
Silbrico’s
site-specific
rule
as
justification
for disposal
of waste
in
a
CCDD
operation
would be subject to enforcement by the Attorney General.
Finally,
Silbrico must
address
the Attorney
General’s second footnote
regarding
Silbrico’s
variance petition.
(Reply,
footnote
2 at
pp 3-4.)
As
noted above,
addressing
the
variance
petition
in
the
context
of
the
pending
motion
to
dismiss
the
site-specific
petition
is inappropriate,
and
should
be ignored.
However, the
statements demonstrate
a
lack of comprehension of Silbrico’s
requests, so
Silbrico will
address those statements
in
order to clarify the
record.
The
Attorney
General
claims
that
Silbrico
has
made
inconsistent
statements
about the
need for
the
site-specific rule
if the
variance
is granted,
and
vice
versa.
This
is
incorrect.
Silbrico’s
variance
petition
seeks
alternate
relief:
either
1)
a
finding
that
Silbrico’s
two perlite waste
streams
are analogous to CCDD,
and can
be disposed of
in
a
CCDD operation, or 2)
a variance which would temporarily allow Silbrico to so dispose
of
those
waste
streams
while
the
site-specific
is
pending.
The first
request
is
in
the
nature
of
a
declaratory
judgment,
which
has
long
been
an
accepted
request
in
a
variance
petition.
If,
and
only
if,
the
Board
should
grant
the
first
requested
relief
(a
finding
that
the
waste
streams
are
analogous to
CCDD
and
can
be
disposed
of
as
such), that
relief would
be
a
permanent
declaration,
and
the site-specific
rule would
be
5
unnecessary.
If,
however,
the
Board
does
not
grant that first
requested
relief,
Silbrico
has sought
the
temporary relief
of a
variance,
while the
site-specific rule
is pending.
In
that case,
the
site-specific
petition would
be
necessary.
This
is
merely
the concept
of
alternative
relief.
CONCLUSION
The Board has the
authority to grant Silbrico’s
requested
site-specific.
Therefore,
the
motion to dismiss
must
be denied.
Respectfully submitted,
SILBRICO
CORPORATION
C-
By:
ne
of its
attorne
s
Dated:
November 22,
2005
Elizabeth
S.
Harvey
Michael
J. Maher
Swanson,
Martin &
Bell,
LLP
One IBM
Plaza,
Suite
3300
330 North Wabash Avenue
Chicago,
Illinois
60611
Telephone:
(312)
321-9100
6