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RECEIVED

CLERKS

OFFICE

MAR 2 8 2008

STATE

ILLINOIS

Pollution Control Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In the Matter of:

Petition of BFI Waste Systems

AS 08-5

of North America, Inc. for an

(Adjusted Standard-Land)

Adjusted Standard Waste

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Patricia F. Sharkey

McGuire Woods LLP

77 West Wacker Drive, Suite 4100

Chicago, Illinois 60601

Mary A. Gade, Regional Administrator

U.S. Environmental Protection Agency

Region 5

77 West Jackson Boulevard

Chicago, Illinois 60604

Please take notice that I have filed today with the Illinois Pollution Control Board the

attached Attorney Appearance and Response to Petition for Adjusted Standard on behalf of the

Illinois Environmental Protection Agency, copies of which are served upon you herewith.

Enforcement Programs

William D. Ingersoll, Manager

Enforcement Programs

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Telephone: 217/782-9827

Attorney Reg.: 6186363

William D. Ingerso age

kis

antaf

Printed on Recycled Paper

Respectfully sub

//.

William D. Ingersoll, Ma

Enforcement programs

By:

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEED

CLERK

'S OFFICE

AS 08-5

MAR

2 8 2008

(Adjusted Standard-Land)

STATE

TATE OF

ILLINOIS

(Waste Delisting)

Pollution

Control Board

APPEARANCE

I hereby file my appearance in the proceedings on behalf of the Illinois Environmental

Protection Agency.

In the Matter oft

Petition of BFI Waste Systems

of North America, Inc. for an

Adjusted Standard Waste

Delisting

Date: a/li

'CA o7

treP

William D. Ingersoll, Manager

Enforcement Programs

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Telephone: 217/782-9827

Attorney Reg.: 6186363

Printed on Recycled Paper

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERKS OFFICE

MAR 2 8 2008

OF ILLINOIS

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S

RESPONSE TO THE PETITION FOR ADJUSTED

STANDARD WASTE DELISTING

Now comes the Illinois Environmental Protection Agency ("Illinois EPA"), by one of its

attorneys, William D. Ingersoll, Manager, Enforcement Programs, and, pursuant to 35 Ill. Adm.

Code 104.416, hereby submits a response to the Illinois Pollution Control Board ("Board") to the

petition for adjusted standard ("Petition") filed by BFI Waste Systems of North America, Inc.

("BFI" or "Petitioner"). For reasons stated in detail below, the Illinois EPA recommends that the

Board deny the adjusted standard request. In support of this recommendation the Illinois EPA

states as follows:

I. INTRODUCTION

BFI is seeking an adjusted standard waste delisting to delist landfill leachate classified as

hazardous waste F039 generated at the closed Phase I Unit at BFI's Davis Junction Landfill

located in Davis Junction, Ogle County, Illinois.

To obtain a positive ruling from the Board, BFI must satisfactorily address all the factors

set forth in Section 104.406 of the Board's procedural regulations (35 Ill. Adm. Code 104.406),

Section 28.1(a) of the Environmental Protection Act ("Act")(415 ILCS 5/28.1(a)), and 35 III.

Adm. Code 720.122(d). Since the primary hazardous property of F039 listed hazardous waste is

Toxicity (See 35 Ill. Adm. Code 721.131), Section 720.122(d) is the relevant provision.

II. SECTION 104.406 FACTORS

For the reasons more fully set forth below the Illinois EPA does not believe that BFI's

request for a RCRA waste delisting of landfill leachate generated at the closed Phase I Unit at

BFI's Davis Junction Landfill has met the required level of justification.

Section 104.406(a) – Statement describing the standard from which an adjusted

standard is sought

The Illinois EPA does not take issue with BFI's statement on this topic.

In the Matter of

Petition of BFI Waste Systems

of North America, Inc. for an

Adjusted Standard Waste

Delisting

Printed on Recycled Paper

Section 104.406(b) — Statutory basis of regulation of general applicability

The Illinois EPA does not take issue with BFI's statements on this topic.

Section

104.406(c) — Level

of justification

The Petition sets forth the level of justification required at page 6 and page 22. The

Illinois EPA does not believe that BFI has met the level of justification for its request for

the adjusted standard.

Section 104.406(d) — Description of

the nature of

petitioner's activity

The Illinois EPA does not take issue with BFI's statements on this topic.

E. Section

104.406(e) — Efforts necessary to comply

The Illinois EPA does not take issue with BFI's statements on this topic.

Section 104.406(f) —

Proposed adjusted standard

The Illinois EPA does not believe that the proposed adjusted standard should be granted

by the Board since BFI has not met the required level of justification to warrant issuance

of the adjusted standard.

Section 104.406(g) — Quantitative and qualitative impact on the environment

The Petition at page 33 indicates that four constituents exceeded the delisting levels

generated by the Delisting Risk Assessment Software ("DRAS") model. The Illinois

EPA does not believe that BFI has submitted sufficient information regarding the 1,4-

dioxane that has been detected at the site.

Section 104.406(h) —Justification of

the proposed

adjusted standard

The Illinois EPA does not believe that sufficient data has been submitted to support the

requested adjusted standard. Of particular concern to Illinois EPA is the proposed

delisting level for 1,4-dioxane of 100 mg/L. This level is based on a non-standard risk

assessment methodology of questionable validity, and is an order of magnitude above the

Land Disposal Restriction (LDR) treatment standard of 12 mg/L for 1,4-dioxane in F039

wastewaters found in Title 35 Ill. Adm. Code 728. Table T. Illinois EPA would not be

opposed to a delisting level higher than the DRAS-calculated level of 2.4 mg/L given an

acceptable risk assessment methodology was used, but in no case would a delisting level

higher than that allowable for hazardous waste disposal be acceptable to Illinois EPA.

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If the Board decides to grant the Petition contrary to the Illinois EPA's recommendation,

the Illinois EPA recommends, at a minimum, revisions to the proposed delisting language

in Section F.1 of the petition as follows:

Change Item d as follows:

"Within the first 12 months following the effective date of this delisting, BFI tests a

representative sample of the leachate from the first three tanker trucks of leachate shipped

pursuant to this Adjusted Standard, and from one tanker truck in each of the next three

quarters of the 12 month period. Such samples shall by analyzed for the constituents

listed in Table A (below) and hazardous characteristics as defined in 35 Ill. Adm. Code

721.121, 721.122, 721123 and 721.124. If none of the delisting levels in Table A are

confirmed to be exceeded, such testing shall continue on a semi-annual basis thereafter. If

an initial sample concentration is observed above the delisting level, then a verification

sample will be collected within 7 days and reanalyzed for the constituent(s) exhibiting a

concentration greater than the delisting level. A confirmed exceedance of the delisting

level will be deemed present if both the original and verification sample exhibit

concentrations above the delisting level;"

This change is necessary to provide more up-front confirmation that the delisted waste

meets the proposed delisting levels.

2. Change Item g as follows:

"The leachate is transported in compliance with the requirements applicable to an Illinois

Special Waste (35 III. Adm. Code Part 809) to a waste water treatment facility located in

Illinois which has a Pretreatment Program which has been approved by the United States

Environmental Protection Agency."

This change will ensure that the delisted waste goes to a facility that is able to adequately

deal with it.

Section

104.406(i) – Consistency with federal law

The Petition at page 24 sets forth BFI's statement with regard to consistency with federal

law. The Illinois EPA does not take issue with BFI's statements on this topic in that

federal law provides the regulatory framework for delisting hazardous waste. The Illinois

EPA does not believe, however, that BFI has met the required level of justification to

warrant issuance of the adjusted standard.

Section 104.406(j) – Hearing

The Illinois EPA does not take issue with BFI's statements on this topic.

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Section

104.406(k) – Supporting documents

The Illinois EPA does not take issue with BR's statement on this topic, except with

regard to 1,4-dioxane as explained above.

III. SECTION 28.1 FACTORS

In accordance with Section 28.1(a) of the Act, persons seeking a RCRA waste

delisting must justify the request consistent with Section 27(a). Section 27(a) provides:

In promulgating regulations under this Act, the Board shall take into account the

existing physical conditions, the character of the area involved, including the

character of surrounding land uses, zoning classifications, the nature of the

existing air quality, or receiving body of water, as the case may be, and the

technical feasibility and economic reasonableness of measuring or reducing the

particular type of pollution. 415 ILCS 5/27(a) (2004).

Pursuant to Section 28.1(b) of the Act, the Board has specified the level of

justification for hazardous waste delistings in Section 720.122 of the Board's regulations.

The comments made above for the factors set forth in Section 104.406 apply to

the Section 28.1 factors as well as the 720.122 factors.

IV. CONCLUSION

WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully

requests that the Board deny BFI's request for an adjusted stand.

Respectfully submitted,

Illinois Environmental Protection Agency,

7{St,William

D. Ingersoll, Manage

Enforcement Programs

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-9827

Date: March 25, 2008

Printed on Recycled Paper

State of Illinois

County of Sangamon

Proof of Service

1, the undersigned, on oath state that I served the attached Appearance and Response to

Petition For Adjusted Standard upon the following persons, by placing a copy in an envelope

addressed to:

Clerk of the Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Mary A. Gade, Regional Administrator

U.S. Environmental Protection Agency

Region 5

77 West Jackson Boulevard

Chicago, Illinois 60604

Patricia F. Sharkey

McGuire Woods LLP

77 West Wacker Drive, Suite 4100

Chicago, Illinois 60601

and mailing it by First Class U.S. mail from Springfield, Illinois on

with sufficient postage affixed.

-12.1?

,5 ,

2008

SUBSCRIBED ANLID11770RTO

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OFFICIAL SEAL

CYNTHIA L. WOLFE

NOTARY PUBLIC, STATE OF ILLINOIS ;

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