SILBRICO CORPORATION
Petitioner,
V .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent .
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK'S OFFICE
DEC 1 6 2005
STATE OF ILLINOIS
Pollution Control Board
To
:
Elizabeth S. Harvey
Michael J. Maher
Swanson, Martin & Bell, LLP
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, Illinois 60611
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that on this 13th day of December 2005, I have filed with the
Office of the Clerkof the Pollution Control Board the RECOMMENDATION of the Illinois
Environmental Protection Agency in the above titled matter, a copy of which is herewith served upon
you
.
PCB 06-011
(Variance - Land)
NOTICE OF FILING
Brad Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
By :
Mark
'k
Ass tant C unsel
Di ision of Legal Counsel
DATE: December 13, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217-782-5544
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CTION AGENCY
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECEIVED
SILBRICO CORPORATION
CLERK'S
OFFICE
)
DEC
1 E 2005
Petitioner,
)
PCB 06-011
STATE OF
ILLINOIS
(Variance
- Land)
Pollution Control
Board
V .
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
RECOMMENDATION
NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ("Illinois
EPA" or "Respondent"), by its attorney, Mark V . Gumik, and pursuant to Section 37 of the Act
(415 ILCS 5/37 (2004)) and 35111. Adm. Code 104.216, hereby submits its Recommendation
regarding Silbrico Corporation's ("Silbrico" or "Petitioner") petition for a variance allowing it to
dispose of waste off-specification perlite, and waste fugitive perlite from its baghouse dust
collection, at a clean construction and demolition debris ("Clean C&DD") fill operation
.
INTRODUCTION
Silbrico filed its Variance Petition ("Variance" or "Petition") in this matter on July 19,
2005. The Petition seeks a variance allowing Silbrico to dispose of two of its waste streams, off-
specification perlite, and fugitive perlite from its baghouse dust collection, at Clean C&DD fill
operations. More specifically, it states that it seeks a variance from Parts 810 through 817 of the
Pollution Control Board's regulations, to the extent that those Parts require the disposal of off-
specification perlite and fugitive perlite waste streams in a non-hazardous waste landfill
.
Alternatively, Silbrico requests declaratory relief from the Board that its off-specification perlite
and fugitive perlite waste streams are analogous to Clean C&DD and can be disposed of at a
Clean C&DD fill operation
.
On September 1, 2005, the Illinois Pollution Control Board ("Board") issued an Order
finding that the Petition was insufficient, and directed Silbrico to file an Amended Petition to
address issues outlined in the Board Order. The Amended Petition was filed with the Board
.
The Illinois EPA received the Amended Petition October 31, 2005
.
INVESTIGATION
The Environmental Protection Act ("Act") and the Board's procedural rules provide that
upon receipt of a petition for variance, the Illinois EPA is to investigate the petition and consider
the views of persons who might be adversely affected by the granting of the variance (415 ILLS
5/37(a) (2004) and 35 Ill. Adm. Code 104.216(a)). Accordingly, the Illinois EPA provided
notice of the Petition on August 4, 2005, to local governmental officials in the area of Silbrico's
facility. It also published a notice of the Petition in the Lawndale Bilingual News, a local
newspaper of general circulation in Cook County, on August 4, 2005 . No comments or inquiries
regarding the Variance Petition were received from the public or from local governmental
officials
.
The Illinois EPA also reviewed the technical merits of the Petition . Copies of the Petition
and the Amended Petition were provided to the Illinois EPA, Bureau of Land, for reviewand
consideration. Comments from the Bureau of Land are incorporated into this recommendation
.
RECOMMENDATION
Section 37(b) of the Act (415 ILCS 5/37(b) (2004)) and 35 Ill . Adm. Code 104.216(b)
direct the Illinois EPA to provide the Board with a recommendation on the disposition of the
Variance Petition. The rule also instructs the Illinois EPA to address a list of topics in its
recommendation. In compliance with that instruction, the Illinois EPA states as follows :
2
1 .
Investigation of the Petition
:
As stated above, the Illinois EPA provided notice of the Petition to local governmental
officials. It also published a notice in a newspaper of general circulation in Hodgkins, Cook
County, Illinois. No comments or inquiries were received from the public or from local
governmental officials . The Illinois EPA, Bureau of Land, also reviewed the Petition and
Amended Petition to review the facts, allegations and conclusions set forth by Silbrico
.
Comments from the Illinois EPA are incorporated into this Recommendation
.
2 . Location of Nearest Air Monitoring Station
:
This Variance deals with the general disposal requirements for two of Silbrico's waste
streams. Although Silbrico identifies a few nearby facilities that it might utilize for the disposal
of the waste streams, it does not identify a specific facility where it intends to send the waste .
Therefore, a determination of the nearest air monitoring station to the ultimate point of disposal
for the waste off-specification perlite and the waste fugitive perlite cannot be made until Silbrico
clearly identifies the destination for the disposal of the waste streams .
3
. Agency Comments on facts presented in the Petition
:
The Board requested Silbrico to describe dust control measures used to prevent the waste
fugitive perlite from becoming airborne and blowing off of the disposal site . As part of its
response, Silbrico concludes that regulations adopted by the Board for the operation of clean
construction and demolition debris fill operations will address dust controls for the clean fill
operations (Amended Petition at P .5)
.
These rules are currently not in place. It is rather
premature and speculative to say exactly what requirements the rules will contain or when they
will be adopted. While the final version of the rules may very well contain dust control
3
requirements for Clean C&DD fill operations, the deadline for adopting the rules is September 1,
2006. Rules can go through many changes between the time they are proposed and when they
are ultimately adopted, and it is uncertain whether the new rules will include dust control
requirements sufficient to deal with fine light materials like waste fugitive perlite .
Silbrico also cites to Legislative Declarations in Section 20(d)(4) of the Act (415 ILCS
5/20(d)(4) (2004)) in support of its request for approval of its request to dispose of its perlite
waste streams in a Clean C&DD fill operation (Amended Petition at P. 4). The citation is
inappropriate because Section 20(d)(4) deals with hazardous waste monofills . Clean C&DD fill
operations are not monofills, nor are they permitted to accept any hazardous wastes
.
4 .
Additional Relevant Facts to the Disposition of the Petition :
The Illinois EPA is not aware of any additional allegations or facts that are relevant to this
proceeding. The Illinois EPA also is not aware of any past and pending enforcement actions in
the State of Illinois involving Silbrico
.
5 .
Illinois EPA estimate of Compliance Costs for the Petitioner
:
Silbrico has stated that it currently spends $40,000 to $50,000 per year disposing of its
waste off-specification perlite and waste fugitive perlite at non-hazardous waste landfills . It has
also stated that it anticipates that its costs will decline 50% by disposing of the same waste in a
Clean C&DD fill operation. The Illinois EPA will defer to Silbrico's figures regarding the
estimated cost of compliance
.
6 .
Estimated injury due to a grant of the Variance upon public
:
The injury that the granting of the Variance requested by Silbrico would have is to the
regulatory framework of the Act and Board regulations . The Variance seeks Board approval to
4
dispose of waste in a manner and at a location that is otherwise prohibited by the Act . The
Illinois Legislature has determines that Clean C&DD, if used as specified in the Section 3
.160 of
the Act, is not a waste (415 ILCS 5/3.160 (2004 as amended)). Furthermore, Clean C&DD fill
operations do not require local siting approval . Yet the disposal of waste in one of these facilities
would subject the site to the regulatory controls intended to ensure that a landfill is properly
located, designed and operated. Expanding the list of materials that can be placed in a Clean
C&DD fill operations goes beyond what the Illinois Legislature has approved through its
definition of Clean C&DD at Section 3 .160 of the Act (415 ILCS 5/3 .160 (2004 as Amended)) .
Granting the Variance will also frustrate the local siting approval process by allowing wastes to
be placed in facilities that have not sought and obtained local siting approval
.
7 . Analysis of Applicable Federal Law .
The Illinois EPA is not aware of any federal laws or regulations applicable to the Petition
or Silbrico's waste streams that would be inconsistent with the requested Variance
.
8
. Status of Pending Permits or Permit Applications :
The Illinois EPA has no permit applications pending for Silbrico's waste streams, and is
not aware of any permits associated with or affected by the requested Variance
.
9 . Allegations of facts relevant to conditioning a grant of Variance
:
Although the Illinois EPA recommends denial of the Variance, if the Variance is granted,
conditions regarding the control of dust from the waste are needed. There are no regulatory dust
control requirements for Clean C&DD fill operations at this time . The Illinois EPA recommends
that if the Variance is granted, the waste off-specification perlite and the waste fugitive perlite
should only be allowed to be disposed of at facilities with written dust control procedures in
5
place and being implemented
.
10 . Supporting
Documents or Legal Authorities :
The Illinois EPA has not included any additional supporting documentation to support its
recommendation . All legal citations have been provided in the text of this recommendation
.
11 . Agency Recommendation :
The Illinois EPA recommends that the Variance requested by Silbrico be denied . The
Board has stated that "
.
. .a variance is
.
. . by its very nature, a temporary reprieve from compliance
with the Board's regulations, and compliance is to be sought regardless of the hardship which the
task of eventual compliance presents an individual polluter." General Business Forms, Inc . v .
Illinois EPA,PCB
95-155,
Page 2 (July
18, 1996)
.
Furthermore, the Board has found that where
a petitioner is currently in compliance with the Act and Board regulations, it is presumed that
continued compliance is neither arbitrary nor unreasonable . JLM Chemicals, Inc v. Illinois EPA,
PCB
95-98,
Page 7 (September 7,
1995) .
Silbrico is not seeking a variance to allow it time to
return to compliance . It has admitted that it is currently in compliance with all requirements for
the disposal of its two waste streams involved in this Variance request . (Petition at Pages 4 and
5). It also commits to resuming disposal of the waste streams in a non-hazardous waste landfill if
its request for a Site Specific Rulemaking for the disposal of the waste streams in a Clean C&DD
fill operation is denied . (Petition at Page 7). Silbrico's primary justification for seeking
permission to drop out of compliance is that it would be more convenient and less costly to
dispose of the perlite waste streams in a Clean C&DD fill operation than at a non-hazardous
waste landfill. Essentially, Silbrico is asking for the relief sought under its Site Specific Rule,
Proposed Site Specific Waste Regulation Applicable to Silbrico Corporation
(35 Ill.
Adm. Code
6
810), PCB R06-08, prior to any ruling upon whether the Site Specific Rule will be granted or
denied. The Illinois EPA does not believe that this is a satisfactory justification for Silbrico's
requested Variance
.
The Illinois EPA is also concerned that Silbrico's Petition seeks to effectively amend the
requirements and definitions of the Act through a variance rather than seeking to amend the Act
through the Illinois Legislature. The Illinois Legislature has given the Board the authority to
"
.
. .grant individual variances beyond the limitations prescribed in this Act, whenever it is found
.
.
. that compliance with any rule or regulation, requirement or order of the Board would impose
an arbitrary or unreasonable hardship ." 415 ILCS 5/35(a) (2004) . This authority does not extend
to amending the Act and its statutory definitions . The Illinois Legislature adopted the definition
of Clean C&DD in the Act (415 ILCS 5/3 .160 (2004 as Amended)) and limited it to certain
materials generated from construction and demolition activities . The definition does not include
all inert or innocuous materials. Industrial process wastes or pollution control wastes are outside
the definition . Granting Silbrico's requested Variance would effectively result in the expansion
of the definition through action of the Board rather than the Illinois Legislature
.
Silbrico's Petition also creates a serious problem with the regulatory status of any. Clean
C&DD fill operation that would accept its waste streams . The Act states that no person shall
cause or allow the open dumping of any waste . (415 ILCS 5/21 (a) (2004)). Open dumping is
defined as the consolidation of refuse from one or more sources at a disposal site that does not
fulfill the requirements of a sanitary landfill . (415 ILCS 5/3 .305 (2004)). Section 21(d) also
prohibits any person from conducting any waste-storage, waste treatment or waste disposal
operation without a permit granted by the Agency . (415 ILCS 5/21(d) (2004)) . Placement of
7
waste in a Clean C&DD fill operation, which is not a sanitary landfill, would be a violation of
Sections 21(a) and 21(d) of the Act . Clean C&DD, if used asset forth in the definition at Section
3.160(b) of the Act (415 ILCS 5/3.160(b) (2004 as Amended)), will not be considered a "waste ."
This exemption does not extend to industrial process wastes or pollution control wastes
.
Without expanding the statutory definition of Clean C&DD, and the waste exemption, Silbrico's
waste streams would still be "wastes." A Clean C&DD fill operation that accepts industrial
process waste or pollution control wastes would be a pollution control facility as defined at 415
ILCS 5/3 .330 (2004). It would also be required to comply with local siting approval
requirements and the location, design or operational standards for sanitary landfills adopted by
the Board
.
Lastly, Silbrico asks for alternative declaratory relief. It requests that if the Variance is
denied, the Board declare that its waste off-specification perlite and waste fugitive perlite are
analogous to Clean C&DD . The Illinois EPA believes that this relief is also inappropriate . The
definition for Clean C&DD is clear. Clean C&DD must be generated from construction or
demolition activities . 415 ILCS 5/3.160(b) (2004 as Amended) . If the Illinois Legislature was
willing to have the definition encompass all inert wastes and materials from any source, it could
have written the definition to include those waste streams . Likewise, if the Illinois Legislature
wanted to allow any inert waste to be disposed of in a Clean C&DD fill operation, it could have
included language in Section 22 .51 of the Act (415 ILCS 5/22.51 (2004 as amended)) to that
effect, but it did not. The Board has adopted a definition for "inert waste" at 35 Ill . Adm. Code
810.103, and rules and standards for the design of inert waste landfills . It seems more
appropriate for Silbrico's wastes to be placed in an inert waste landfill instead of contorting the
8
definition for Clean C&DD and overriding the Legislature to allow industrial process waste and
pollution control waste to be placed in a Clean C&DD fill operation .
CONCLUSION
The Illinois EPA recommends that Silbrico's Variance Petition be denied . Silbrico is
currently in compliance with the Act and Board regulations regarding the disposal of its two
waste streams involved in the Petition . It needs no relief to allow it to return to compliance
.
Furthermore, its waste streams, an industrial process waste and a pollution control waste, are not
within the scope of the definition for Clean C&DD as adopted by the Illinois Legislature
.
Granting the Variance would expand the definition of Clean C&DD beyond what the Illinois
Legislature intended. Therefore, the Illinois EPA recommends that the requested relief be
denied
.
DATE: December 13, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217-782-5544
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By :
Mar
mik
As istant
ounsel
D vision of Legal Counsel
THIS FILING IS SUBMITTED ON RECYCLED PAPER
9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SILBRICO CORPORATION
Petitioner,
V
.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent
.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217-782-5544
PROOF OF SERVICE
I, Mark V. Gumik, as an attorney, hereby certify that I caused the attached Recommendation to be
served upon all parties listed on the attached Notice of Filing via first class U.S. mail on December
13, 2005, from 1021 North Grand Avenue East, Springfield, Illinois, 62794-9276
.
Mar
ik
As stant
ounsel
Division of Legal Counsel
THIS FILING IS SUBMITTED ON RECYCLED PAPER
