BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BIG RIVER ZINC

CORPORATION FOR

AN ADJUSTED

STANDARD UNDER 35 ILL. ADM. CODE

nO.131(c)

NOTICE OF FILING

Pollution Control Board

Attn: John

T. Therriault

100 West Randolph Street

James

R. Thompson Center, Suite 11-500

Chicago,

IL 60601-3218

William D. Ingersoll

Division

of Legal Counsel

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, IL 62794-9274

AS 08-09

(Adjusted Standard-Land)

PLEASE TAKE NOTICE that I have today filed with the Office

of the Clerk ofthe Pollution

Control Board the attached Amended Petition for Adjusted Standard

of Big River Zinc

Corporation, a copy

of which is herewith served upon you.

Date: July

I!i

2008

Jennifer T. Nijman

Nijman Franzetti LLP

lOS. LaSalle Street, Suite 3600

Chicago,

II 60603

(312) 251-5255

Electronic Filing - Received, Clerk's Office, July 14, 2008

CERTIFICATE OF SERVICE

I, the undersigned, certifY that I have served the attached Amended Petition for Adjusted

Standard, by electronically filing with the Board and by first class mail upon IEPA and the

Hearing Officer:

Pollution Control Board

Attn: John

T. Therriault

100 West Randolph Street

James

R. Thompson Center, Suite 11-500

Chicago,IL 60601-3218

William D. Ingersoll

Division

of Legal Counsel

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Date: July

2008

Jennifer

T. Nijman

Nijman Franzetti LLP

lOS. LaSalle Street, Suite 3600

Chicago,

II 60603

(312) 251-5255

Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield,IL 62794-9274

Electronic Filing - Received, Clerk's Office, July 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF BIG

RNER

ZINC

CORPORATION

FOR AN ADJUSTED

STANDARD UNDER 35 ILL. ADM. CODE

nO.l3l(c)

AS 08-09

(Adjusted Standard-Land)

AMENDED PETITION FOR ADJUSTED STANDARD

Big River Zinc Corporation ("BRZ"), by its undersigned counsel, submits this Amended

Petition to respond to the Hearing Officer Order

of June 26, 2008, Attaclunent A. BRZ is not

requesting a substantive change to the requested relief in AS 08-9 and therefore need not re-

notice the Amended Petition nor repeat the entire unchanged portion

of the original filing. 35 Ill.

Adm. Code 104.41 8(a) and (d). For ease

of review, BRZ restates each of the Hearing Officer's

questions below and responds in turn.

In addition, BRZ refers to the Findings of Fact and

Discussion by the Board in

In the Matter of Petition of Big River Zinc Corporation for an

Adjusted Standard, AS 99-3, Opinion and Order

of the Board, 4/15/99 (attached as tab C to

BRZ'sMotion to Incorporate Documents by Reference).

1. Besides refrning to produce zinc metal, please describe the other processes to which

BRZ expects its washed material to be subjected, as well as the resulting end products

and their uses.

BRZ currently expects its washed EAF zinc oxide to be processed to make zinc metal.

However, because the purpose

of this modifrcation to BRZ's existing Adjusted Standard is to

allow BRZ to wash zinc oxide for others, BRZ wants to ensure that the ultimate customer base is

not limited to only processors

of zinc metal given that other benefrcial markets exist for washed

zinc oxide. As described

in the attached Affidavit of George Obeldobel in Support of Amended

Electronic Filing - Received, Clerk's Office, July 14, 2008

Petition for Adjust Standard C"Aff."), zinc oxide can be used to make high purity zinc sulfate,

which is used in products such as fertilizer and animal feed

CAff. at para 4). In addition, high

purity zinc oxide can be used in paints, ceramics and rubber products, among other products

CAff. at para 4).

Please provide information about existing or prospective contracts for BRZ's

contemplated sale or return of washed EAF zinc oxide and any other relevant information

concerning the extent to which an end market for

BRZ'swashed material is guaranteed.

BRZ is close to fmalizing a washing agreement with Steel Dust Recycling to deliver to BRZ

approximately 1500 tons

per month of zinc oxide to be washed. Steel Dust Recycling is ready to

ship the material as soon as BRZ receives this amendment to Condition 2.a.(I)

CAff. para 5). In

addition, BRZ is in discussions with a second entity for washing, and expects also to wash zinc

oxide for BRZ's sister company

by rnid-201 0 CAff. at para 6,7).

2. B. Please describe the collection and testing methodology used to gather this data and any

plans BRZ has for such sampling in the future.

BRZ's existing Adjusted Standard for washing and processing EAF zinc oxide, granted in

1999, includes a condition requiring BRZ to

talce monthly "representative samples of the zinc

oxide material that it accepts from each supplier and composite the samples on a supplier-

specific basis" as well as testing composite samples on a monthly basis for specified constituents

using EPA methods

CAff. at para 8). BRZ has complied and will continue to comply with this

sampling condition

CAff. at para 9).

addition, each batch ofzinc oxide will be sampled and

composited after the material is washed. The composite will be analyzed to ensure the quality

the washed product on a frequency of no less than once per month

(Mf.

at para 10).

2. C. Could a supplier or third party decline to accept a shipment ofBRZ'swashed EAF

zinc oxide, such as for elevated levels

of inorganic salts? If so, how would rejected

material be handled?

Electronic Filing - Received, Clerk's Office, July 14, 2008

is unlikely that a supplier or third party will decline to accept a shipment of the washed

EAF zinc oxide because

the material will be sampled as described above to ensure the supplier's

specifications are met. Moreover, the washed material has significant market value and could

either be returned to

BRZ and rewashed if requested, or sold as is by the supplier for different

end use or at a discount. The discounted sale of off-spec feed materials is typical in the zinc

refining industry (Aff.

para 11).

2. D. Please explain how BRZ plans to "return" the washed EAF zinc oxide to the "original

supplier." Would the actual material received from a given supplier, after washing, be

returned to that supplier?

Each supplier

of EAF zinc oxide to BRZ will receive back its own material after it is washed.

BRZ does not currently plan to co-mingle the EAF zinc oxide it receives (Aff. at para 12).

the

future, some limited co-mingling may occur ifBRZ receives a significant amount ofEAF zinc

oxide from more than one supplier, the material is

of similar quality, and the suppliers agree to

allow some co-mingling

(Aff.

at para 12).

3. Please provide any updated information about existing or prospective contracts for

BRZ's

contemplated acquisition of EAF zinc oxide, the economic value of and markets for EAF

zinc oxide, and

BRZ'sproposed handling of incoming EAF zinc oxide from its arrival at

the Sauget facility through the washing phase, including the anticipated volumes, any

permitting, and the manner and duration

of any storage.

BRZ's contracts and agreements (including volume) for the acquisition ofEAF zinc oxide

for washing are described above in the response to question 2.A. and in the attached Affidavit

George Obeldobel at paragraphs 3, 5-7. These agreements are the "market" for the washed zinc

oxide as the supplier will talce the material back after washing. The ultimate uses

ofthe material,

in addition to zinc metal, are described above in the response to question I. The economic value

of the washed EAF zinc oxide was described by Mr. Obeldobel in his 5/22/08 Affidavit in this

Electronic Filing - Received, Clerk's Office, July 14, 2008

matter, attached to BRZ's Reply to Response of IEPA to Petition for Adjusted Standard. Mr.

Obeldobel stated:

The value

of the washed oxide on the market is similar to the value of mined zinc

concentrate. There is a standard fonnula for which the constants are negotiated every year

for purchasing concentrates. While tenns can vary year to year, the long term price is

approximately 55

to 65% ofthe LMB (London Metal Exchange) zinc price for the zinc

contained in the oxide, delivered to the customer. The LMB zinc price has ranged from

$800 per metric

tOIUle to about $4000 per metric tOIUle of zinc this decade. The washed

oxide will contain about 65% zinc. The current LMB price is about $2200 per metric

tonne zinc. See attached page from London Metals Exchange. Therefore, the

approximate value

of washed oxide today would be about 0.6 X 65% X $2200

$858 per

metric tonne delivered. Even

ifthe LMB zinc price falls, the difference in the washing fee

and the market price leaves significant room for profit for the supplier

ofthe crude zinc

oxide.

BRZ will use the same handling methods and washing process for incoming EAF zinc oxide

as it used in the past when the material would arrive for washing and then further refining by

BRZ (Aff. at para 13). The material is unloaded from rail car or truck through closed pneumatic

system ventilated air to silos equipped with HEPA filters, then to a washing tank, and then to a

covered storage building

(Aff.

at para 13-14). Typically, material will be stored in the silos for 3

days or less, so as to allow a steady feed rate to the washing circuit. The unloading and washing

process has not changed. Instead

of washed material being transported from the covered storage

building to

BRZ'srefining operation, however, this adjusted standard will allow BRZ the option

of transportation by the supplier to a supplier-directed location (Aff. at paraI4-15).

updated

process flow diagram for the washing is attached to Mr. Obeldobel'sAffidavit (Aff. at Exhibit

B). The washed product will be stored inside and only long enough to allow for efficient

transportation by the supplier

(Aff.

at para 14). BRZ has obtained all applicable permits for its

washing operation

(Aff.

at para 16) and only waits approval ofthis modification to allow it to

begin washing zinc oxide as requested herein.

Electronic Filing - Received, Clerk's Office, July 14, 2008

4. Please provide infonnation on how the material that is to depart from the Sauget facility

would be handled after the washing phase, including the anticipated volumes, any

permitting, and the manner and duration

of any storage, how loss would be minimized,

and how washed material would be delivered to customers.

Typically, there is about a 10% weight loss upon washing (dry basis) since certain salts are

dissolved. The washed

EAF zinc oxide will be in the fonn of wet filter calee

(Aff.

at para 14).

The filter

calee will be dropped through a chute into a truck and then transported about 200 feet

to a covered storage building where it will

be stored inside the building on its concrete floor. As

noted above, storage will only

be long enough to collect sufficient quantity for efficient

transportation by the supplier, and not for more than approximately 2 months (Aff.

at para 14).

Because the material is damp, no spillage typically occurs and loss is minimized.

BRZ also uses

a sweeper to pick up minimal quantities

of material that might fall during transportation or

(Aff.

at para 14). The supplier is responsible for transportation from BRZ (covered truck

or rail) and meeting transportation requirements

(Aff.

at para 15). BRZ's process is properly

pennitted

(Aff.

at para 16). The washed material has significant value and all parties are

incentivized to minimize loss

(Aff.

at para 18).

5. Please describe BRZ'splanned expansion ofthe Sauget facility's washing operation and

how the expansion would affect the handling of both incoming EAF zinc oxide and

washed material headed either for off-site destinations or on-site refining.

BRZ's expansion is not expected to occur until the second halfof2009, when larger

quantities

ofEAF zinc oxide would be delivered for washing. The material handling would be

upgraded to allow for the additional volume, including additional silos, a more efficient

unloading system, and a more efficient system (such as conveyors) for moving

the larger

Electronic Filing - Received, Clerk's Office, July 14, 2008

quantities ofwashed material to storage for ultimate refining or transportation

(Aff.

at para 17).

The handling process would generally remain the same.

WHEREFORE,

Big River Zinc requests that the Board grant its request for an

amendment to Condition

2.a (1) of its adjusted standard AS-99-3.

Respectfully submitted,

Big River Zinc Corporation

Jennifer T. Nijman

Nijman Franzetti LLP

10 S. LaSalle St, Suite 3600

Chicago, Illinois 60603

(312) 251-5255

Electronic Filing - Received, Clerk's Office, July 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PETITION OF

BIG

RIVER

ZINC

CORPORATION

FOR

ADWSTED

STANDARD UNDER 35 ILL. ADM. CODE

no.

13I Cc)

AS 08-9

(Adjusted Standard - Land)

AFFIDAVIT OF

GEORGE OBELDOBEL IN SUPPORT OF AMENDED PETITION FOR

ADWSTED

STANDARD

I. George Obeldobel,

being first duly sworn on oath, depose and state as follows:

I. I am over the age

of 18 years and am a resident of Chesterfield, Missouri.

2. The information in this Affidavit is based on my personal knowledge or beliefin my capacity

as President and

ChiefExecutive Officer ofBig River Zinc Corporation C"BRZ" or the

"Facility") in Sauget, Illinois, and I would testify

to such matters if called as a witness.

3. I previously issued an affidavit discussing the need to wash the EAF zinc oxide. Washing

the EAF zinc

oxide effectively reduces chloride, fluoride, sodium and potassium and creates

a more marketable product for further processing. There is a market for washed zinc

oxide

and the product has significant value. I am familiar

with

the Nyrstar zinc smelter in

Tennessee which currently purchases approximately 15,000 tons

per year ofwashed zinc

oxide from sources in Europe. Zinc smelters in Europe purchase washed zinc oxide from

-~~

Electronic Filing - Received, Clerk's Office, July 14, 2008

Befesa Zinc Aser and others, which perform a similar washing process to that which BRZ

conducts

in the United States.

4. BRZ currently expects the washed EAF zinc oxide to be processed to make zinc metal;

however, the market for washed EAF zinc oxide

is broader than only zinc metal.

Washed EAF zinc oxide can also

be used to make high purity zinc sulfate, which is used in

products such as fertilizer and animal feed, and to produce high purity zinc oxide, which can

be used in the composition ofcertain paints and ceramics. See, e.g.

http://www.tetramlcro.comlcoDtrollerihome? load=dafault (describing use of zinc sulfate for animal

fead); http://www.pahc.com!( describing product phlbro chem from zinc oxide);

http://www.stallonazlncoxlde.coml(descrlblng both pharmaceutical and commercial uses for zinc

oxida, Including paints, caramlcs, textiles, chemicals and rubber products);

http://www.zincchemlcals.umicore.com/zcProductsJzinCOxide/Appllcalionsi (describing world use of

zinc oxide In 2004 at 1,000,000 tonnes, with applications such as agriCUlture, pharmaceutical,

ceramics and chemicals). Because the purpose ofthis modification to BRZ'sexisting Adjusted

Standard

is to allow BRZ to wash zinc oxide for others, BRZ does not want to limit its

customers

to only processors ofzinc metal, given that other beneficial markets do exist for

the washed zinc oxide.

5. BRZ is finalizing a washing agreement with Steel Dust Recycling ("SDR") ofMillport,

Alabama

(]'iYJ'V~~i£s;.I(lust.com).

SDR creates zinc oxide and will provide the material to

BRZ for washing. Once washed, SDR

will pick up the washed zinc oxide and sell it to a zinc

smelter. SDR expects to deliver to BRZ approximately 1500 tons per month

of zinc oxide to

be washed.

As ofJuly 10, 2008, SDR has informed BRZ that it is ready to begin shipping

EAF zinc oxide to BRZ for washing.

Electronic Filing - Received, Clerk's Office, July 14, 2008

6. BRZ is in preliminary discussions with PIZO (a joint venture between Heritage

Environmental Services

and Nucor Steel Corporation;

www.Dizotec"L~m

) to wash zinc

oxide for return to PIZO, beginning in approximately 2009. PIZO expects to deliver to BRZ

approximately 1250 tons per month of material for washing. BRZ understands that PIZO

expects

to sell the washed material to a zinc smelter.

7. BRZ's sister company, Zinc and Iron Recycling of Ohio, Inc., is expected to be operational

in mid 2010. It will produce approximately 7000 tons per month ofzinc oxide to be washed

by BRZ and then returned or sold in the market. The current plan is for BRZ to wash the

oxide for sale to other zinc refineries. Once there is an adequate supply ofzinc oxide, BRZ

likely will process the washed zinc oxide itselfto make zinc metal.

8. Pursuant to the Board's Order ofMay 6, 1999, in AS 99-3, BRZ is required to conduct

specified sampling

ofthe EAF zinc oxide it receives. The Board stated: "Each month, BRZ

must take representative samples ofthe zinc oxide material that it accepts from each supplier

and composite the samples on a supplier-specific basis. BRZ must test each composite

sample

on a monthly basis to determine the percentage by weight of zinc, lead, iron, total

gangue materials (silica plus calcium plus magnesium),

and chloride in the sample. Each

sample

must be collected and tested in accordance with generally accepted practices, such as

those specified in "Test Methods for Evaluating Solid Waste, PhysicaVChemical Methods,"

EPA Publication No. SW-846 (Third Edition)." (5/6/99 Order ofthe Board, AS 99-3,

attached hereto as Exhibit A).

9. BRZ conducted such sampling and provided results of the sampling to the Board in its

petition in this case. (See Petition for Adjusted Standard, AS 99-08, Attachment B, Affidavit

ofGeorge Obeldobel, 3/12/08, pp. 3-4). BRZ will continue to comply with this sampling

Electronic Filing - Received, Clerk's Office, July 14, 2008

condition. Specifically, BRZ used EPA sampling method 9253 for chloride, method 9214 for

fluoride, and method 7000 for iron, lead, potassium, sodium and zinc. On monthly

composite samples

of unwashed zinc oxide, BRZ sampled for percentages of zinc, chloride,

fluoride, sodium, potassium and other materials to determine the quality

of material before

washing.

10.

In addition to sampling the zinc oxide as it comes in to BRZ, each batch will be sampled and

composited after the material is washed on a supplier-specific basis

to ensure the quality of

the washed product. BRZ will analyze washed samples for percentages of zinc, chloride,

fluoride, sodium and potassium and other materials remaining in the washed zinc oxide,

using

EPA methods adapted to allow for the larger concentrations ofelements being

sampled.

The composite will be analyzed on a frequency as required by the needs of the

supplier

or as required by the variability in washing efficiencies, but no less than once per

month.

11. The material will be sampled as described above to ensure the supplier's specifications are

met. Because

of its significant market value, it is unlikely that a supplier would reject the

washed zinc oxide material.

could be returned to BRZ and rewashed if requested or sold as

is by the supplier for a different end use

or for the same use but at a discount to his

contractual terms.

The latter case is typical for the handling of off-spec feed materials in the

zinc refining industry.

12.

BRZ does not currently plan to co-mingle the EAF zinc oxide it receives, meaning that a

supplier will receive back its own material after washing. In the future,

ifthe supply ofEAF

zinc oxide to be washed becomes so significant and the facility is expanded, co-mingling

Electronic Filing - Received, Clerk's Office, July 14, 2008

might take place but only with materials of similar quality and only

with

each supplier's

approval.

13. BRZ will use the same handling methods and process for incoming

EAF zinc oxide as

described in its Application for Adjusted Standard Petition AS 99-3, which has been made

part

of the record in this case (Attachment A to BRZ'sMotion to Incorporate Documents by

Reference, pp. 11, 15-16) and as described

in Opinion and Order ofthe Board, AS 99-3,

April 15, 1999 (pp. 8-9, describing washing process for dry secondary zinc oxide material).

The vast majority,

if not all, of the EAF zinc oxide will

arrive

either by rail or truck. Both

rail cars and trucks will

be unloaded by ventilated air slides to silos, as described in the

Application. BRZ has installed 2 silos (rather than 4 as noted in the Application) and one

washing tank (rather than

3) because the additional equipment was not required for the actual

installed capacities.

updated process flow diagram for the zinc oxide washing is attached

as Exhibit

14. The washed EAF zinc oxide will be in the form of wet filter cake and will be transported by

truck about 200 feet

to a covered storage building. The washed product will be stored inside

the covered storage building and

on its concrete floor only long enough to collect sufficient

quantity

for transportation by the supplier, and not for more than approximately 2 months.

The material is in a damp solid form and therefore no spillage typically occurs. In the event

of any spillage during transportation or loading, BRZ uses a road sweeper to pick up material

and transport it

back to the storage building (roads are paved for this purpose). BRZ also has

a facility-wide accident response program and trains its employees yearly on proper handling

procedures.

Electronic Filing - Received, Clerk's Office, July 14, 2008

15. The washed filter cake is loaded into the shipping vehicle, fob Sauget, and the supplier is

responsible for meeting any requirements for transportation by the supplier to a supplier-

directed location.

BRZ will load trucks or rail cars for transportation, depending upon the

requests

ofBRZ's supplier, and the vehicle will be covered before leaving the BRZ site to

avoid any loss ofthe valuable material during shipment. The elderior of the trucks or rail

cars will be inspected for any visible oxide and cleaned before they leave the plant.

16. BRZ has obtained applicable permits for its facility. In 1998, BRZ received from the Illinois

Environmental Protection Agency Construction Permit no. 98070057

to construct the

secondary zinc oxide receiving and washing plant, with appropriate environmental controls.

In 2005, BRZ received its notice

of completion for its CAAPP operating permit No.

96030 ]07, which includes the oxide washing facility. BRZ also has a 2008-9 Wastewater

Discharge permit

No. 08-101 issued by American Bottoms Regional Treatment Facility

which receives and regulates

BRZ's waste water discharge. The permit is based upon BRZ

washing zinc oxides and considers the specific composition

ofthe washing solution.

17. Any expansion of the washing facility is not expected until approximately 2

half2009,

when larger quantities

ofEAF Zinc oxide are delivered to BRZ for washing (for instance, by

PIlO as described above). The handling of the material will remain the same in concept, but

will simply allow for handling more volume, more efficiently. BRZ would expect to install

additional silos, a more efficient pneumatic system for unloading, and a more efficient

system for handling and loading large volumes

of washed material. Any necessary permits

for the expansion would be obtained

at that time.

In the case of delivery to BRZ'srelated entity, Zinc and Iron Recycling ofOhio, Inc., BRZ may lake responsibility

for tile delivery off-site and will follow all applicable transportation requirements.

Electronic Filing - Received, Clerk's Office, July 14, 2008

18. As described in my prior affidavit

this case, both the unwashed and the washed EAF zinc

oxide have significant value on the market.

BRZ is incentivized to minimize any loss and

prevent any accumulation. (See Affidavit

of George Obeldobel,

5/22/08,

attached to BRZ

Reply to Response ofIEPA to Petition for Adjusted Standard).

FURTIIER AFFIANT SAYETHNOT.

OFFICIAL SEAL

SANDRA K ANDERSON

Nolary PUbl/c . Slale or

I/I/nol,

My Commlilian

expire,

Nav.l, 2010

SubscribeqJi!ld sworn to before me

July\!:\! 2008.

'\.

Notary

)-] rcDtZl

Public

16.

!Wc1iSC)(C

My Commission Expires: \

0 \IdO l 0

orge M. Obeldobel

resident

CEO - BRZ

~"'.

)

Electronic Filing - Received, Clerk's Office, July 14, 2008

Exhibit A to Affidavit

Electronic Filing - Received, Clerk's Office, July 14, 2008

AS 99-3

(Adjusted Standard - RCRA)

ILLINOIS POLLUTION CONTROL BOARD

May 6, 1999

IN THE MATTER OF:

)

PETITION OF BIG RIVER ZINC

)

CORPORATION FOR AN ADJUSTED

)

STANDARD UNDER 35 ILL. ADM. CODE)

720.131(c)

)

ORDER OF THE BOARD

(by K.M. Hennessey):

On April 15, 1999, the Board granted petitioner Big River Zinc Corporation (BRZ) an

adjusted standard, subject

to certain conditions. On April 28, 1999, BRZ moved the Board to

reconsider its decision. BRZ also moved the Board to decide the motion to reconsider at the

Board's May

6, 1999 meeting. On May 5, 1999, the Illinois Environmental Protection

Agency

(IEPA) filed a response to the motion to reconsider.

The Board grants BRZ's motion

to decide this matter today. The Board also grants

BRZ's motion

to reconsider and sets forth in this order the modified terms of BRZ's adjusted

standard.

BACKGROUND

The Board's findings of fact and conclusions

of law are set forth in its opinion of April

15, 1999 and are incorporated here by reference. Below, the Board highlights the facts and

proceedings relevant

to BRZ's motions.

BRZ operates an electrolytic zinc refinery

in Sauget, St. Clair County, Illinois. BRZ

uses various zinc-containing materials

as feedstock for its refinery. BRZ sought an adjusted

standard because it wants

to use a zinc-containing material recovered from dust emitted from

electric arc furnaces used

to produce steel. This secondary zinc oxide material would

ordinarily be considered a "solid waste" and a "hazardous waste" under the Resource

Conservation and Recovery Act

(RCRA) , 42 U.S.C. §§ 6901 et

seq.,

and corresponding

Illinois laws and regulations. BRZ wants

to use this secondary zinc oxide material without

becoming subject

to Illinois' hazardous waste requirements.

To that end, BRZ filed a petition for an adjusted standard under

35 Ill. Adm. Code

720.131 (c). Section 720.131

solid wastes if they meet certain criteria. The status

of materials as "solid wastes" is

significant because under the laws and regulations that Congress and the United States

Environmental Protection Agency have established, only those materials that are "solid

wastes" can be regulated

as "hazardous wastes" under RCRA and corresponding Illinois laws

and regulations. Those laws and regulations impose various requirements on persons who

generate, treat, store, dispose, recycle, or transport hazardous waste. See 35 Ill. Adm. Code

Electronic Filing - Received, Clerk's Office, July 14, 2008

722-726, 728. Materials that are not solid wastes are not subject to Illinois' hazardous waste

regulations.

The secondary zinc oxide material for which BRZ sought

an adjusted standard is

recovered from electric arc furnace dust (EAF dust) by a high temperature metals recovery

(HTMR) process. The Board refers to this material as "EAF zinc oxide." BRZ also proposed

several conditions

on the adjusted standard. IEPA recommended that the Board grant the

adjusted standard, subject to the conditions that BRZ proposed.

In its April 15, 1999 opinion, the Board found that BRZ established that EAF zinc

oxide

is not a solid waste. The Board therefore granted BRZ's petition for an adjusted

standard, but modified the conditions that BRZ

had proposed.

MOTION

TO EXPEDITE

BRZ moves the Board to decide the motion to reconsider at the Board's May 6, 1999

meeting. Motion to Expedite (Mot. Exp.) at 4. BRZ attached the sworn affidavit of George

Obeldobel, President

of BRZ (Affidavit), to both the motion to reconsider and the motion to

expedite. BRZ is scheduled to begin receiving shipments of EAF zinc oxide on May 11,

1999. Affidavit at 4. BRZ states that its business relationships with its suppliers will be

threatened if the Board does not modify the adjusted standard before that date. Mot. Exp. at

The Board's resources permit it to address BRZ's motion to reconsider at the Board's

May

6, 1999 meeting. Accordingly, the Board grants the motion to expedite and below rules

on BRZ's motion to reconsider.

MOTION

TO RECONSIDER

BRZ moves

the Board to reconsider its April 15, 1999 decision in this matter. Motion

to Reconsider (Mot. Rec.) at 1. Specifically, BRZ asks the Board to modify a condition of the

adjusted standard that the Board granted to BRZ.

Id.

at 15. The adjusted standard reads as

follows:

The Board finds that zinc oxide material produced by subjecting electric

arc furnace (EAF) dust from

the primary production of steel (K061

under 35 Ill. Adm. Code 721.132) to a high temperature metals recovery

(HTMR) process

is not a solid waste and grants Big River Zinc

Corporation

(BRZ) an adjusted standard under 35 Ill. Adm. Code

720.131(c).

The adjusted standard is subject to the following conditions:

The determination described in paragraph one of this order

applies only

to zinc oxide material:

Electronic Filing - Received, Clerk's Office, July 14, 2008

(1)

that is tD be processed through BRZ's electrolytic zinc

refinery in Sauget, St. Clair CDunty, IllinDis;

(2)

that is in IllinDis;

(3)

that has arrived at BRZ's Sauget, St. Clair CDunty,

IllinDis facility

or that is under a legally binding cDntract

for sale

tD BRZ; and

(4)

that meets the fDllDwing specificatiDns by weight:

(a)

50% zinc;

(b)

20% lead;

(c)

5% iron (Dr

7% iron in material prDduced by

HTMR unit during the first three mDnths that

the HTMR unit produces zinc

Dxide material from

EAF dust from the primary productiDn

Df steel

(K061 under 35

Ill.

Adm. CDde 721.132));

(d)

4% tDtal gangue materials (silica plus calcium

plus magnesium); and

(e)

13% chlDride;

BRZ must maintain records that dDcument the

SDurces Df all zinc

Dxide material that BRZ accepts under this adjusted standard;

BRZ must maintain records that demDnstrate that each shipment

Df zinc Dxide material that BRZ accepts under this adjusted

standard meets the specificatiDns set forth in paragraph 2

(a) (4) Df

this order; fDr this demDnstratiDn, representative samples Df each

shipment

Df zinc Dxide material must be cDllected, cDmpDsited,

and tested in accDrdance with generally accepted practices, such

thDse specified in "Test MethDds fDr Evaluating SDlid Waste,

Physical/Chemical MethDds," EPA PublicatiDn

ND. SW-846

(Third EditiDn); and

BRZ must maintain the recDrds required under paragraphs 2(b)

and 2(c)

Df this Drder fDr a periDd Df three years and must make

such records available for inspectiDn and cDpying at any

reasDnable time during nDnnal business

hDurs upDn the IllinDis

Environmental ProtectiDn Agency's request.

Electronic Filing - Received, Clerk's Office, July 14, 2008

In Re

Petition of Big River Zinc Corporation (April 15, 1999), AS 99-3, slip

op. at 18-19.

BRZ takes exception

to the sampling requirements of paragraph 2(c) of the adjusted standard.

In particular, BRZ asks the Board to amend tills provision so that each shipment of EAF zinc

oxide need not meet the specifications of paragraph 2(al(4). Rather, BRZ proposes to

determine compliance with the specifications based on a monthly composite of shipment

samples. Mot. Rec. at 4, 15.

The Board notes that BRZ previously proposed sampling based on monthly averages.

See Big River Zinc, AS 99-3, slip op. at 15. However, as the Board noted

its April 15,

1999 opinion, BRZ failed to adequately explaln how its proposal would work. Specifically,

BRZ failed to explain how it would composite samples and whether samples from different

producers would be composited together or separately. In addition, BRZ proposed blending

shipments that exceeded the specifications with other materials "such that the blended materials

meet the specifications," but failed to explain how it would determine whether the blended

materials meet the specifications.

Id.

at 16.

BRZ now explains that it proposes to sample each truckload, barge, railcar, or

supersack of EAF zinc oxide that arrives at its facility. Mot. Rec. at 2, 5-7; Affidavit at 2-3.

BRZ states that it would test a supplier-specific composite on a monthly basis for each supplier

to determine compliance with the specifications.

Id.

BRZ states that it uses this sampling and

testing approach for its mined zinc sulfide concentrates. Mot. Rec. at 2, 6-7; Affidavit at 2.

BRZ asserts that the requirement that each shipment of EAF zinc oxide meet the

specifications is cost-prohibitive. Mot. Rec. at 8; Affidavit at 3. BRZ states that AmeriSteel,

Inc. (AmeriSteel), which is expected to be a primary supplier

BRZ, and others like it would

have to send samples off-site for testing. According to BRZ, these suppliers would have to

hold the shipments for several days

await test results, resulting

demurrage fees. BRZ

states that the off-site testing fees and demurrage fees would represent a significant portion

(20-40%) of the value of the EAF zinc oxide. Mot. Rec. at 9-10; Affidavit at 3. For these

reasons, BRZ concludes that the requirement that each shipment meet the specifications will

prevent BRZ from purchasing EAF zinc oxide from its prospective suppliers. Mot. Rec. at 2-

3, 5, 8; Affidavit at 3.

BRZ states that it can process

an occasional shipment of inferior product and that it will

ensure that all EAF zinc oxide received is processed. Affidavit at 3. BRZ states that if a

supplier continues to provide inferior product, "BRZ will terminate its contract with its

supplier and process whatever product remalns."

Id.

In its response, IEPA notes that while the Board's conditions were more strict than

those that BRZ proposed, and IEPA agreed to, the Board's conditions were not without basis.

IEPA Response (Resp.) at 3. IEPA believes, however, that if "process and [supplier]

QAlQC

[Quality Assurance/Quality Control] standards are met and consistently followed, that should

Electronic Filing - Received, Clerk's Office, July 14, 2008

ensure a consistent product and less frequent sampling of actual content would be acceptable. "

Id.

at 4. IEPA also suggests that the Board define shipment as a production cycle. or on a

rolling average, rather than an individual truck or railcar.

Id.

IEPA also proposes that the

Board permit BRZ to blend only within the same shipment.

Id.

IEPA further suggests that the

Board allow "a reduction in the sampling frequency based on the generator's ability to use

QNQC

procedures to produce consistently on-specification material."

Id.

at 5.

is not clear

whether IEPA believes the material should be tested before or after it is shipped.

The Board notes that BRZ proposed

the specifications as a condition of the adjusted

standard. However, as noted above, the Board found that BRZ's proposed conditions, as

interpreted by BRZ, were potentially unenforceable. Accordingly, the Board crafted

enforceable conditions to address specifications and sampling. While BRZ now has clarified

its proposal, BRZ's interpretation of its proposed conditions remains problematic.

These problems arise because BRZ continues to propose that the specifications be a

condition of the adjusted standard. But BRZ will not know, until the end of the testing period,

whether the material

has already received meets the required specifications on an average

basis. If the material fails to meet the specifications, the adjusted standard would not apply to

the material and the material would be considered a hazardous waste. In that situation, BRZ

would have violated illinois hazardous waste laws and regulations. For these reasons, BRZ's

proposed condition is not workable.

Accordingly, the Board will take a different and more workable approach. The Board

already has found that AmeriSteel's EAF zinc oxide meets specifications necessary for BRZ to

process the material economically. See Big River Zinc, AS 99-3, slip op. at 14. Other

HTMR processes are capable of producing a similar quality material. Hearing Exhibit 3 at 10.

Attachment H. The Board further finds that BRZ plans to process all EAF zinc oxide that it

receives and that if a supplier consistently provides an inferior product, BRZ would terminate

its contract with that supplier. Affidavit at 3. Limiting the scope of the adjusted standard to

EAF dust that has been processed by HTMR and that is to be processed through BRZ's

electrolytic zinc refinery, as the Board did in its April 15, 1999 order, is an adequate proxy for

the monthly average specifications. Accordingly, the Board will delete the condition regarding

specifications from the adjusted standard. The Board also will modify the adjusted standard to

clarify that it applies only to EAF zinc oxide that will undergo BRZ's electrolytic zinc refining

process. The Board also will make other minor changes to the terms of the adjusted standard

for clarification.

The Board took a similar approach in

Petition of Recycle Technologies. Inc.

(September 3, 1998). AS 97-9. In that case, the Board granted an adjusted standard under

Section 720.131 (c) to a petitioner that processed used automotive antifreeze. The Board did

not impose a condition regarding specifications, but did limit the scope of the adjusted standard

to used automotive antifreeze that the petitioner had processed in a specific manner and would

further process in a specific manner. See Recycle Technologies, AS 97-9, sUp op. at 12.

Electronic Filing - Received, Clerk's Office, July 14, 2008

However, the Board does believe it necessary, as IEPA suggests, that BRZ sample and

test the materials it receives. BRZ has already proposed that the adjusted standard require it to

do so, and this information would allow rEPA to assess whether BRZ is indeed processing

material that

is EAF dust that has undergone HTMR processing. Accordingly, the Board will

require BRZ each month

to take representative samples of the material it receives from each

supplier and composite the samples on a supplier-specific basis. BRZ must test each composite

sample

on a monthly basis, and maintain records of sampling and test results for three years

and make those records available for IEPA

to inspect.

The Board grants BRZ's motion

to reconsider and grants BRZ the following amended

adjusted standard:

The Board finds that zinc oxide material produced by subjecting electric arc

furnace (EAF) dust from

the primary production of steel (KD61 under 35 Ill.

Adm. Code 721.132)

to a high temperature metals recovery (HTMR) process is

not a solid waste and grants Big River Zinc Corporation (BRZ) an adjusted

standard under

35 Ill. Adm. Code 72D.131(c).

The adjusted standard is subject to the following conditions:

The determination described in paragraph one of this order applies only

to zinc oxide material:

(1)

that will undergo BRZ's electrolytic zinc refining process at its

facility in Sauget, St. Clair County, Illinois;

(2)

that is in Illinois; and

(3)

that has arrived at BRZ's Sauget, St. Clair County, Illinois

facility or that

is under a legally binding contract for sale to BRZ;

b. BRZ must maintain records identifying the suppliers of all zinc oxide

material that BRZ accepts under this adjusted standard;

c. Each month, BRZ musttake representative sa!Ilples ofthe zinc oxide

material

thatitacceptsfrom each supplier and composite the samples on a

supplier-specific basis.•

BRZ must test each composite sample on a monthly

basis

to determine the percentage by weight of zinc, lead, iron, total gangue

materials (silica plus calcium plus magnesium) , and chloride in the sample.

Each sample must

be collected and tested in accordance with generally

accepted practices, such

as those specified in "Test Methods for Evaluating

Solid Waste, Physical/Chemical Methods," EPA Publication No. SW-846

(Third Edition); and

Electronic Filing - Received, Clerk's Office, July 14, 2008

d. BRZ must maintain records of the information required in paragraphs 2(b)

and 2(c) of this order for a period of three years and must make them

available for the Illinois Environmental Protection Agency (rEPA) to inspect

and copy at any reasonable time during normal business hours upon IEPA's

request.

IT IS SO ORDERED.

Section

41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this

order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d

R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

I, Dorothy M. Gunn, Clerk of the IllInois Pollution Control Board, hereby certify that

the above order was adopted on the 6th day of May 1999 by a vote of7-0.

Dorothy M.

Gunn, Clerk

Illinois Pollution Control Board

Electronic Filing - Received, Clerk's Office, July 14, 2008

Exhibit B to Affidavit

Electronic Filing - Received, Clerk's Office, July 14, 2008

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