ILLINOIS POLLUTION CONTROL BOARD

NOTICE
HEARING

June 5, 2008

IN THE MATTER OF:

RCRA DELISTING ADJUSTED

STANDARD PETITION OF PEORIA

DISPOSAL COMPANY

)

AS 08-10

(Adjusted Standard – Land)

ORDER OF THE BOARD (by T.E. Johnson):

On April 25, 2008, Peoria Disposal Company (PDC) filed an adjusted standard petition

(Pet.) to delist what PDC characterizes as the “stabilized residue generated by PDC from the

treatment of K061 electric arc furnace dust” at PDC’s waste stabilization facility (WSF). Pet. at

1. The WSF is located at 4349 W. Southport Road in Peoria, Peoria County, and was approved

for operations under PDC’s Resource Conservation and Recovery Act (RCRA) Part B permit.

. at 1, 9. According to the petition, PDC seeks an “upfront and conditional delisting” for the

residue based on PDC’s “new proprietary stabilization technology.”

. at 2. PDC has waived

hearing.

. at 27. Today’s order provides no determination on the informational sufficiency or

merits of PDC’s petition, but rather addresses several procedural items.

In this order, the Board first finds that PDC has satisfied the requirements for providing

public notice of its petition. The Board then accepts this matter for hearing. Despite PDC’s

hearing waiver, the Board must hold a hearing because public requests for a hearing have been

timely filed. Next, the Board rules on PDC’s motions for expedited review and for relief from

certain filing requirements. The motions were filed with the petition. The next portion of the

order states the filing deadline for the recommendation of the Illinois Environmental Protection

Agency (IEPA). Finally, the Board notes but reserves ruling on PDC’s application for non-

disclosure, which PDC filed with the petition.

NOTICE

The Environmental Protection Act (Act) (415 ILCS 5 (2006)) requires an adjusted

standard petitioner to publish notice of the petition’s filing by advertisement in a newspaper of

general circulation in the area likely to be affected by the proposed adjusted standard.

See

415

ILCS 5/28.1 (2006);

see also

35 Ill. Adm. Code 104.408(a). Publication must take place within

14 days after the petition is filed, or the Board lacks jurisdiction to hear the petition.

See, e.g., In

Petition of SCA Tissue North America, L.L.C. for an Adjusted Standard from 35 Ill. Adm.

Code 218.301 and 218.302(c), AS 05-1 (Jan. 6, 2005). The newspaper notice must indicate that

any person may cause a public hearing to be held on the proposed adjusted standard by filing a

hearing request with the Board within 21 days after publication.

See

415 ILCS 5/28.1(d)(1)

(2006); 35 Ill. Adm. Code 104.408(b). Within 30 days after filing the petition, petitioner must

file a certificate of publication with the Board.

See

35 Ill. Adm. Code 104.410.

On April 30, 2008, PDC filed a certificate of publication, documenting that the required

notice of the petition was published on April 28, 2008, in the

Peoria Journal Star

. The Board

finds that PDC has met the notice requirements of the Act and the Board’s procedural rules.

HEARING

Although PDC waived its opportunity to have a hearing on the petition (Pet. at 27), the

Board is required to hold a hearing when any person makes a timely request for hearing. Section

28.1(d)(2) of the Act states:

The Board shall adopt procedures applicable to such adjusted standards

determinations which, at a minimum, shall provide:

***

(2)

that . . . upon the request of any person received by the Board within 21

days after publication of the notice of the filing of the petition, the Board

shall hold a public hearing on the petition . . . . 415 ILCS 5/28.1(d)(2)

(2006).

The Board’s procedural rules in turn provide that public requests for hearing “must be filed not

later than 21 days after the date of publication of the petition notice.” 35 Ill. Adm. Code

104.420(a). When a timely hearing request is filed, the Board will hold a hearing.

See

35 Ill.

Adm. Code 104.422(a)(2);

but see

35 Ill. Adm. Code 104.420(b) (where all hearing requests are

withdrawn).

Because notice of PDC’s adjusted standard petition was published in the

Peoria Journal

Star

on April 28, 2008, any hearing request was required to be filed with the Board by May 19,

2008. The Board has received four timely requests that a hearing be held. On May 12, 2008,

Lisa Offutt filed a hearing request; on May 14, 2008, Tom Edwards filed a hearing request; on

May 17, 2008, Kim McLean Converse filed a hearing request on behalf of Peoria Families

Against Toxic Waste; and on May 19, 2008, Joyce Blumenshine filed a hearing request on behalf

of the Heart of Illinois Group Sierra Club.

See

35 Ill. Adm. Code 101.300(b)(2) (Converse’s

request, received on May 20, 2008, is deemed filed on the U.S. Mail postmark date under the

“mailbox rule”). Any one of these hearing requests is alone sufficient to trigger the requirement

to hold a hearing on PDC’s requested relief.

See

415 ILCS 5/28.1(d)(2) (2006); 35 Ill. Adm.

Code 104.422(a)(2).

The Board therefore accepts this matter for hearing. The Board, through orders of its

own or its hearing officer, may direct PDC to provide additional information concerning its

request prior to or at hearing.

See

Petition of BFI Waste Systems of North America, Inc. for

Waste Delisting, AS 08-5, slip op. at 1 (Jan. 10, 2008) (accepting petition for hearing while

noting that orders may issue requiring more information from petitioner before or at hearing).

Consistent with the Board’s grant below of PDC’s motion for expedited review, the Board

directs the hearing officer to expeditiously schedule a hearing in this case. Details concerning

the date, time, and place of the hearing will be provided in a notice of hearing that will be issued

by the hearing officer.

MOTION FOR EXPEDITED REVIEW

In its motion for expedited review (Mot. Exp.), PDC states that the stabilized residue

proposed for delisting is presently disposed of in PDC’s on-site RCRA Subtitle C hazardous

waste landfill, the “PDC No. 1 Landfill.” Mot. Exp. at 1. Besides the PDC No. 1 Landfill, the

nearest Subtitle C landfill accepting waste is located some 220 miles away in Roachdale,

Indiana.

. According to PDC, the PDC No. 1 Landfill is predicted to be “completely full in

2009,” at which time PDC, absent the adjusted standard, would have to transport the stabilized

residue hundreds of miles for disposal.

. at 1-2;

see also

Pet. at 11 (time to reach capacity is

based on the current rate of receipts).

If, however, the stabilized residue is excluded from the list of hazardous wastes, PDC

maintains that it would be able to haul the material to a RCRA Subtitle D non-hazardous solid

waste landfill. Mot. Exp. at 2. PDC intends to transport the delisted material to its affiliated

Subtitle D landfill in Tazewell County, the “Indian Creek Landfill No. 2,” or to two other

Subtitle D landfills in Illinois affiliated with PDC. Pet. at 3.

Depending upon whether the adjusted standard is granted, the difference in costs that

PDC would face, according to the petition, stems from the differing costs of post-treatment

transportation to and disposal at a Subtitle D landfill versus post-treatment transportation to and

disposal at an off-site Subtitle C landfill. Pet. at 12-13. The former is estimated to cost

$3,203,460 per year while the latter is estimated to cost $15,735,360.

PDC maintains that the cost differential ($112.90 per ton totaling $12,531,900 per year)

between these two compliance alternatives would:

be an unbearable hardship for PDC that would result in the loss of most of its

K061 accounts (which comprise the majority of the WSF receipts), as well as a

dramatically increased and perhaps equally unbearable cost burden for its K061-

generating customers in the Midwest, many of which (as discussed above) have

no feasible or economically viable alternative. Pet. at 13;

see also

Mot. Exp. at 6.

Supporting PDC’s petition and motion for expedited review is, respectively, an affidavit and a

certification of Ron. L. Edwards, Vice President of PDC.

Motions for expedited review are governed by Section 101.512 of the Board’s procedural

rules, and must contain, among other things, a complete statement of the facts and reasons for the

request.

See

35 Ill. Adm. Code 101.512(a). In ruling on a motion for expedited review, the

Board considers, at a minimum, all statutory requirements and whether material prejudice will

result from the motion being granted or denied.

See

35 Ill. Adm. Code 101.512(b). IEPA has

filed no response to PDC’s motion and therefore waives any objection to it being granted.

See

35 Ill. Adm. Code 101.500(d). Considering all of the factors, including the economic

information PDC has presented, the Board grants the motion for expedited review, consistent

with decision deadlines and available resources.

See

35 Ill. Adm. Code 101.512(c);

see also

Petition of Big River Zinc Corp. for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c),

AS 06-4, slip op. at 1-2 (Aug. 4, 2006) (granting motion to expedite review). As stated above,

the Board directs the hearing officer to proceed expeditiously to hearing.

MOTION TO FILE REDUCED NUMBER OF COPIES

Along with its petition, PDC filed a motion to file a reduced number of copies (Mot.

Red.) of its Technical Support Document, which is Attachment 2 to the petition.

See

35 Ill.

Adm. Code 101.302(h) (original document plus nine hard copies generally required). PDC seeks

to file the original document plus only four hard copies. Mot. Red. at 1. The motion explains

that the attachment is especially voluminous (“two (2) large three-ring binders, or approximately

eight (8) inches of paper, per copy”), excluding Appendix N to the Technical Support Document.

. at 1-2. The Technical Support Document’s Appendix N, which contains laboratory raw data,

consists of “two (2) ‘Banker’s Boxes’ of paper.”

. at 2. PDC asks that it be allowed to file an

original and one hard copy of Appendix N, along with three compact discs each containing

Appendix N.

. No response has been filed to the motion, which is granted.

See

35 Ill. Adm.

Code 101.500(d).

IEPA RECOMMENDATION

IEPA must file its recommendation on PDC’s petition by June 12, 2008, which is the

45th day after the filing of the petition.

See

35 Ill. Adm. Code 104.416(a).

APPLICATION FOR NON-DISCLOSURE

PDC filed along with its petition an application to treat as “non-disclosable information”

certain portions of Appendix B and Appendix F to the Technical Support Document attached as

Attachment 2 to the petition.

See

35 Ill. Adm. Code 130. PDC has filed two versions of these

appendices, one with the claimed information redacted and the other un-redacted.

See

35 Ill.

Adm. Code 130.404(a)(1), 130.404(c)(4). The Board reserves ruling on the application. The

claimed information is not subject to public inspection while the application is pending.

See

Ill. Adm. Code 130.406(a).

CONCLUSION

As described above, today the Board (1) finds that PDC has satisfied the jurisdictional

requirement of providing newspaper notice of its petition for an adjusted standard; (2) accepts

this matter for hearing based on the timely public requests for hearing; (3) grants PDC’s motion

to expedite review; (4) grants PDC’s motion to file a reduced number of copies of specified

documents; (5) notes the filing deadline of June 12, 2008, for IEPA’s recommendation; and (6)

reserves ruling on PDC’s application for non-disclosure.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on June 5, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant, Clerk

Illinois Pollution Control Board