IN THE MATTER OF:
ILLINOIS POLLUTION CONTROL BOARD
April 4, 2008
RECEIVED
CLERK'S OFFICE
APR 0 4 2008
STATE
OF ILLINOIS
Pollution Control Board
PETITION OF BFI WASTE SYSTEMS OF
AS 08-5
NORTH AMERICA, INC. FOR WASTE
(Adjusted Standard – Land)
DELISTING
HEARING OFFICER ORDER
On March 12, 2008, and again on March 18, 2008, all parties participated in telephonic
status conferences with the hearing officer. A hearing date was requested by BFI Waste Systems
of North America, Inc. (BFI) and a hearing date of May 15, 2008, was scheduled.
The parties were informed that any questions that the Board's technical personnel may
have regarding BFI's petition would be forwarded to the respective parties in a hearing officer
order prior to the hearing. To that end, the hearing officer directs BFI to address the issues set
forth in Attachment A to this order. BFI may provide its responses through an amended petition,
pre-filed testimony, and/or post-hearing brief, as it believes appropriate. Any evidence not
presented in an amended petition, however, must be presented in the form of pre-filed testimony.
Any pre-filed testimony must be filed by May 6, 2008. The "mailbox rule" (35 Ill. Adm. Code
101.300(b)(2)) does not apply to this filing of pre-filed testimony. Accordingly, the Clerk's
Office must
receive
any pre-filed testimony by the May 6, 2008 deadline. The filing of an
amended petition may necessitate delaying the scheduled hearing.
On March 28, 2008, the Clerk's Office received the Illinois Environmental Protection
Agency's recommendation that the Board deny the requested adjusted standard.
The parties are reminded that pursuant to the hearing officer order of March 18, 2008, a
telephonic status conference with the hearing officer is scheduled for April 7, 2008, at 9:30 a.m.
The telephonic status conference must be initiated by BFI, but each party is nonetheless
responsible for its own appearance. At the status conference, the parties must be prepared to
2
discuss the status of the above-captioned matter and their readiness for hearing.
IT IS SO ORDERED.
re-Pa
t-
A
\
9
,Q
.0
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
312.814.8917
hi ,t)r)iplra ■
lo .∎
.
?
\ r
i
?t?
a] 16
? 61irias Act
?
:y)plicsblcfk? r
dland',tat
,tat- Li
la.. ?
?bun Hi , \
i ll 6c ,ic,,,,inl, 6
do„i ii i
ht u.?
16
?
(u
p
, 666
I MU ,.
?
46(1 s 't‘ tee?
)61(a1 \ Lur
t
?( ' 1?nr .1,, 16,,trd a
,
11111 l \. cal !t .ka,a)aa'
1
11L./pin, iiiril(0,
(,66
, )
al a ',1)
814 6
lirurrdar a 7 k 1 . 7
i
!
)
) in I I )1) riti■aihel
?
' k !I 66 ,),
?, 1.6 , a
6t:Artn::
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first
class, on April
4, 2008,
to each of the persons on the attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on April
4, 2008:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
3
AS 2008-005
Robert A. Messina
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2008-005
William Ingersoll
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2008-005
Douglas Scott
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2008-005
Bill Child
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
AS 2008-005
Mary A. Gade
USEPA - Region 5
77 West Jackson Blvd.
Chicago, IL 60604-3590
AS 2008-005
Patricia F. Sharkey
McGuire Woods LLP
77 W. Wacker
Suite 4100
Chicago, IL 60601
ATTACHMENT
A
to April 4,
2008 Hearing Officer Order
AS 08-5, Petition of BFI Waste Systems of North America, Inc.
for Waste Delisting
1.
Monitoring Frequency
Board regulations at 35 Ill. Adm. Code 720.122 rely on the federal framework for waste
delistings set forth in USEPA's March 23, 2000 "EPA RCRA Delisting Program—
Guidance Manual for the Petitioner" (Manual). According to the Manual, one-time
delistings or single-batch exclusions apply to discrete volumes of waste that were
typically generated in the past. Multi-year or multiple-batch delistings apply to waste
that is currently generated and/or will be generated in the future. Manual at 7-8, App. H,
Att. 5; USEPA's RCRA Delisting Technical Support Document EPA906-D-98-001
(RCRA TSD) at 1-7, 1-8. "A one-time delisting does not require the Agency to establish
monitoring concentrations that must be met by each batch of waste to be managed under
a promulgated exclusion." RCRA TSD at 1-8, 1-9. "Delisting levels are established for
multiple batch delistings. The delisting level is the maximum concentration allowed for a
waste constituent for any given waste batch .. .." Manual, App. H, Att. 5.
The adjusted standard petition of BFI Waste Systems of North America, Inc. (BFI)
proposes monitoring the leachate on a quarterly and semi-annual basis instead of
monitoring each batch (truckload) of waste. The Board previously addressed the issue of
on-going monitoring.
See
Petition of Waste Management of Illinois, Inc. for an Adjusted
Standard from Subpart D of 35 Ill. Adm. Code 721 and for RCRA Waste Delisting Under
35 Ill. Adm. Code 720.122 for Treatment Residual of CID Recycling and Disposal
Facility Biological Liquid Treatment Center, AS 05-7, slip op. at 8-9 (Dec. 15, 2005).
Please elaborate on the adequacy of quarterly and semi-annual leachate monitoring to
demonstrate that each batch of leachate meets the proposed delisting levels.
2.
DRAS Modeling: One-Time Delisting
v.
Multi-year Delisting
According to the Manual, one-time delistings or single-batch exclusions apply to discrete
volumes of waste that were typically generated in the past. Manual at 7. Multi-year or
multiple-batch delistings apply to waste that is currently generated and/or will be
generated in the future. Manual at 7-8, App. H, Att. 5; RCRA TSD at 1-7, 1-8.
The Board previously addressed the issue of single versus multiple batch delisting.
See
Petition of BP Products North America Inc. for an Adjusted Standard Pursuant to 35 Ill.
Adm. Code 720.122, AS 07-1 (Feb. 15, 2007); Petition of Waste Management of Illinois
Inc. for an Adjusted Standard from Subpart D of 35 Ill. Adm. Code 721 and for RCRA
Waste Delisting Under 35 Ill. Adm. Code 720.122 for Treatment Residual of CID
Recycling and Disposal Facility Biological Liquid Treatment Center, AS 05-7 (Dec. 15,
2005). BFI's petition used DRAS to derive delisting levels more consistent with a one-
time delisting approach rather than a multi-year delisting approach. For the DRAS input
2
parameters, BFI used values consistent with a one-time disposal by entering a waste
volume equal to the volume of one tanker truck (5000 gallons/year) and a waste
management unit active life of 1 year. Pet. at 29-30.
The DRAS User's Guide explains, "If the waste to be delisted will be disposed of in
multiple batches over more than one year, the user should select the Multi-year batch
option button." User's Guide for the U.S. EPA Region 6 Delisting Risk Assessment
Software (DRAS), April 2002, EPA906-D-98-001 (DRAS User's Guide) at 10. The
DRAS User's Guide defines the Waste Volume parameter as the "maximum annual
volume of the petitioned waste for a multi-batch delisting". DRAS User's Guide at 6.
BFI predicts a maximum annual volume for leachate of 500,000 gallons. Pet. at 5. For
the DRAS parameter of Waste Management Unit Active Life, the guide explains this is
the "number of years the petitioned waste is projected to be generated." DRAS User's
Guide at 6. BFI requests the delisting apply "over the remaining RCRA Post-Closure
Period which is anticipated to be seven years", but acknowledges that may be extended.
Pet. at 1-2.
In light of the above, please explain BFI's rationale for not utilizing the multi-year
approach to derive the delisting levels using the multi-year values of 500,000
gallons/year and 7-year anticipated closure period.
3.
Constituents of Concern
BFI's analysis for initial constituents of concern includes all of the 40 CFR 264 App. DC
contaminants as well as total oil and grease. "BFI has tested for a far broader list of
hazardous constituents, including all F039 constituents." Att. 1 at 7. Appendix D to the
petition contains analytical results for most but not all of the F039 constituents. Please
elaborate on the test results for those F039 constituents, listed below, that do not seem to
appear in Appendix D.
F039 Waste Code (40 CFR 268.40) Constituents not in AS 08-5 Petition App. D:
Dibenz(a,e)pyrene
1,4-Dinitrobenzne
1,2-Diphenylhydrazine
Ethyl acetate
Ethyl ether
Ethylene oxide
4,4-Methylene bis(2-chloroaniline)
p-Nitrophenol
Phthalic anhydride
1,1,2-Trichloro-1,2, 2-trifluoroethane
tris(2,3-Dibromopropyl) phosphate
4.
Final List of Constituents of Concern
USEPA Region 6 states that after conducting the initial analysis for the constituents of
3
concern, "a final list of constituents can be prepared to include only the metals and
organics from the 40 CFR 261.24 Toxicity Characteristics list plus all additional
constituents that were detected .. .." Manual, App. H, Att. 2.
BFI's proposed final list includes 39 constituents that were detected. Att. 1 at 21-22. A
review of Appendices C and D of the petition shows the following constituents were
detected but not included in BFI's proposed final list (Att. 1 at 21-22):
1,2,3,4,6,7,8,9 – OCDD (2/27/02)
1,2,3,4,6,7,8-HpCDD (2/27/02)
1,2,4 Trimethyl benzene (3/14/01)
1,4-dichlorobenzene (3/14/01)
Fluoride (11/4/99)
Heptachlor, TCLP (2/18/04)
Selenium, Total (3/13/01)
Sulfide as S (11/4/99)
Please elaborate on BFI's reasons for not including the above constituents in the final list
of constituents of concern.
5.
Land Disposal Restrictions for F039 Constituents
The Illinois Environmental Protection Agency's recommendation expressed concern that
the proposed delisting level of the F039 constituent 1,4-dioxane was above the Land
Disposal Restriction (LDR) treatment standard found in 35 Ill. Adm. Code 728.Table T.
See
IEPA Recommendation at 2 (received Mar. 28, 2008).
As shown in the table below, in addition to 1,4-dioxane, numerous delisting levels
derived by BFI using DRAS for the constituents that were included in BFI's assessment
exceed the LDRs in 35 Ill. Adm. Code 728.Tables T and U. The LDRs are identical in
substance to the 40 CFR 268.40 Treatment Standards for Hazardous Wastes and 40 CFR
268.48 Universal Treatment Standards (UTS).
F039
Constituent of Concern
BFI-derived
DRAS Delisting Level
(mg/L)
(Att. 1 at 15-16)
35 IAC
728.Tables
T
&
U
(40 CFR 268.40/.48)
Treatment Standards
Ong/L)
Barium
151
1.2
Benzene
0.153
0.14
Carbon Disulfide
118
3.8
Chromium
1040
2.77
Dichloropropene, cis-1, 3-
(Cis-1,3- dichloropropylene)
1,000,000
0.036
Diethyl phthalate
1270
0.20
4
Endrin
32,700
0.0028
Ethylbenzene
57.2
0.057
Isobutyl alcohol
299
5.6
Lead
204
0.69
Mercury
0.22
0.15
Methanol
499
5.6
Methyl ethyl ketone
599
0.28
Methylene chloride
0.198
0.089
Methyl isobutyl ketone
79.8
0.14
Napthalene
6.51
0.059
Nickel
76.8
3.98
Cresol, p-
5.37
0.77
Phenol
645
0.039
Tetrachloroethylene
0.174
0.056
Toluene
40.2
0.08
Trichloroethylene
0.164
0.054
Vanadium
57.1
4.3
Xylenes (total)
886
0.32
Zinc
760
2.61
Dichloroethane, 1,1-
99.8
0.059
Dioxane, 1,4-
100
12.0
Silvex
1.43
0.72
2,4-D
1.86
0.72
Dimethylphenol, 2,4-
27.6
0.036
Acetone
99.8
0.28
Please explain whether USEPA delisting guidance or policy allows delisting levels for
constituents of concern to be higher than the LDR UTS.
6.?
Delistine Levels and Toxicity Characteristic Levels
The delisting level for vinyl chloride of 0.0285 mg/L produced by BFI's DRAS analysis
was lower than the Maximum Concentration of Contaminants for the Toxicity
Characteristic of 0.2 mg/L in 40 CFR 261.24. Instead of using the lower value, "BFI is
proposing that the delisting level for vinyl chloride in the Adjusted Standard be
established at 0.2 mg/L." Att. 1 at 33. USEPA has required the lower value be used for
the delisting level.
See
67 Fed. Reg. 42193 (June 21, 2002) ("Although there is
understandable confusion between the definition of hazardous waste and the delisting
process, EPA has decided to use the DRAS EPACMTP as the basis for the delisting
levels in the TCLP extract of Nissan's waste.").
In light of this, please explain BFI's rationale for not proposing the lower DRAS value as
the delisting level for vinyl chloride.
5
In addition, BFI proposes a delisting level of 204 mg/L for lead based on the BFI's
DRAS derivation. Pet. at 16, Att. 1, App. D. USEPA has stated, "Delisting levels cannot
exceed the Toxicity Characteristic (TC) regulatory levels." 67 Fed. Reg. 42192 (June
21, 2002). The TC regulatory level for lead is 5.0 mg/L. 40 CFR 261.24.
Please clarify whether BFI's proposed delisting level for lead, which is greater than the
toxicity characteristic limit for lead at 40 CFR 261.24, is consistent with USEPA policy.
7.
Detection Limits
The DRAS User's Guide at 11 states, "In some cases the reported [detection limit] for a
chemical may exceed its delisting level at the target risk level. In such a case, the user
may wish to discuss this issue with the lab to find out if there is another available analysis
method with a lower [detection limit]." When entering the detection limit in DRAS, "all
risk assessments are conducted twice: once including those chemicals specified with
concentrations that are [detection limits] and once omitting them. This enables the user
to know if these non-detects are driving the results of the risk assessment." DRAS User's
Guide at 11. BFI's petition does not demonstrate that the detection limits do not exceed
the delisting levels at the target risk level of 10
-6
. Please provide a demonstration that the
detection limits do not exceed delisting levels at the target risk level.
8.
User Alert for DRAS Version 2
Attachment 1 to BFI's petition notes, "The chemical database in DRAS did not have a
value for the surface impoundment dilution attenuation factor (DAF) for the following
constituents: 1,1-Dichloroethane; 1,1-Dichloroethane; Cobalt; Tin. However a non zero
value is required for DRAS to calculate a delisting level." Att. 1 at 30. BFI's consultant
therefore selected conservative DAF values as input parameters for the DRAS analysis.
Att. 1 at 30.
In a "User Alert for DRAS Version 2," USEPA acknowledged problems with DRAS
version 2, including some incorrect DAF values, and identified certain corrections. The
User Alert provides correct DAF values for the four constituents listed on page 30 of
Attachment 1 to BFI's petition. The User Alert, a scanned copy of which is attached,
previously appeared at
http://www.epa.gov/epaoswer/hazwaste/id/f019/pdf/0038-2.pdf.
In addition, toxicity values recently updated in USEPA's Integrated Risk Information
System (IRIS),
http://www.epa.gov/iriswebp/iris/,
are not reflected in DRAS Version 2.0
Please comment on whether the information in the User Alert or updates to the IRIS
toxicity values warrants any changes in BFI's DRAS analysis. Questions on delisting,
including DRAS, may be directed to Todd Ramaly, USEPA RCRA Programs Section,
Land and Chemicals Division, Mail Code LR-8J, 77 W. Jackson Blvd., Chicago, IL
60604, 312/353-9317.
6
wadai -e fie tic Vept
()Swee
t
/ha
fi
veis/
e/
c/Xcey,„;6,41,022g /0,7,7z--.
User Alert for DRAS Version 2
In using Delisting Risk Assessment Software (DRAS) version 2, EPA has identified
certain problems and is currently developing version 3 to address these known problems. The
model can still be used for its intended purpose by user over-rides to the input variables and in
some cases, performing necessary correction calculations by hand. However, EPA would like
users to be aware of the following:
(1) Incorrect Landfill Dilution and Attenuation Factors for 13 constituents:
Constituent
DRAS ver. 1.1
OAF
DRAS ver. 2.0
DAF
Correct
DAF
Cobalt
10
0
10
Iron
10
0
10
Magnesium
10
0
10
Manganese
10
0
10
Molybdenum
10
0
10
Tin
10
0
10
Ally! chloride
10
0
18
Chloro-1,3 butadiene, 2-chloropropene
10
0
18
methyl chloride (chloromethane)
10
0
18
2-nitropropane
10
0
18
1,1-dichloroethane
1
1
18
1,2-dichloroethane
1
1
18
dimethyl phthalate
1
1
18
(2)
When selecting chemicals of concern (COCs) in steps 4 and 5, COCs with both carcinogenic
and noncarcinogenic effects need to be entered twice. After doing so, you must scroll to the
right along the row of that COC's properties until you get to a drop-down menu near the end that
allows you to select
noncarcinogen
or
carcinogen.
Make sure there is one of each for COCs
with both effects. Also note that the default for this drop down box is
noncarcinogen,
so in the
case of something like dioxin (where we only have toxicological data for carcinogenic effects)
you must correct the selection to
carcinogen.
(3)
The backward calculations are not working for the fish ingestion and air volatiles pathways.
Since the limiting pathways screen is based on the backward calculations, do not use the limiting
pathways screen. Instead, review the pathways listed on the hazard quotient and risk results
7
screens instead of relying on the limiting pathways screen. If the fish ingestion or air volatiles
pathways are represented as part of the calculated hazard quotient or risk, use the following
technique to calculate the delisting level corresponding to the forward calculations:
The observed concentration's relationship to the DRAS-calculated hazard quotient or risk
level is the same as the "allowable level" concentration's relationship to the target hazard
quotient or risk level. Thus, a simple ratio relationship exists, as shown in the equation
on the next page. Solving for the unknown allowable level means multiplying the target
hazard quotient or risk level by the observed concentration, and then dividing by the
DRAS-forward-calculated hazard quotient or risk level, as follows:
8
(5)
A unit conversion error occurred in the air volatiles pathway equations. Equation 2-33 in
RCRA Delistin^ Technical Support Document
contains a conversion from square centimeters to
square meters (1 cm2 104 m2), which it should not contain. The net result is that the estimated
volatile emissions from the landfill are lower than they should be, by a factor of 10,000. DRAS
version 2 users may adjust for this error by using the model in forward-calculate mode only,
manually adjusting the air volatiles pathway results by increasing them by a factor of 10,000,
and then continuing with the pathway analysis and associated delisting levels. For many
constituents no change in the final results will be needed.
(6)
A unit conversion error occurred in the surface water body water column concentration
equations, which affects the dissolved phase constituent concentration estimates. However, this
error affects only back-calculated values, so using the DRAS Version 2 model in forward
calculate mode does not cause incorrect results.
