ILLINOIS POLLUTION CONTROL BOARD
September 4, 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 A.S. Moore):
On April 25, 2008, Peoria Disposal Company (PDC) filed an adjusted standard petition to
delist the residue from treating K061 electric arc furnace dust (EAFD) at PDC’s waste
stabilization facility, which is located at 4349 W. Southport Road in Peoria, Peoria County.
Petition at 1. Before PDC can be granted a hazardous waste delisting for the treated EAFD, PDC
must prove that the material no longer constitutes hazardous waste under the federal Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901
et seq
. Today the Board rules on
numerous non-party requests for an additional public hearing in this proceeding.
The Board held a public hearing in this case on August 18, 2008, in Peoria, Peoria
County. On August 13, 2008, the Board received a letter from Illinois State Representative Bill
Mitchell of the 87th District. Representative Mitchell asks that the Board hold an additional
public hearing, this time in Clinton, DeWitt County. PDC filed a response on August 14, 2008,
opposing Representative Mitchell’s request. At the August 18 hearing in Peoria and through
post-hearing written public comment, a total of seven citizens have also requested that one or
more additional public hearings be held in DeWitt, Tazewell, and Pike Counties. On August 29,
2008, PDC filed a response opposing the citizen requests. Also on August 29, 2008, the Board
received a letter from Illinois State Senator Bill Brady of the 44th District, expressing his opinion
that further public hearings in this proceeding do not appear to be necessary. On September 2,
2008, the Illinois Environmental Protection Agency (IEPA) filed a response to certain public
comments, but explicitly took no position on whether the Board should grant any of the hearing
requests.
For the reasons set forth below in this order, the Board declines the requests to hold one
or more additional public hearings. The Board will, however, accept written public comment for
an extra two weeks, extending the deadline for filing public comments from September 11, 2008
to September 25, 2008, in recognition of the significant public interest in this case.
REPRESENTATIVE MITCHELL’S LETTER REQUESTING
AN ADDITIONAL HEARING
On August 13, 2008, State Representative Bill Mitchell of the 87th District filed a letter
with the Board (PC 5) requesting that the Board hold “an
additional
hearing with venue change.”
PC 5 at 1 (emphasis in original). Representative Mitchell states that if PDC is granted the
delisting:
2
Peoria Disposal Company intends to possibly transport the EAFD to Indian Creek
Landfill No. 2, located in Tazewell County OR to two other Subtitle D landfills in
Illinois affiliated with Peoria Disposal. One of these Subtitle D landfills is located
near Clinton, Illinois, in DeWitt County.
I represent DeWitt County and have received calls from constituents expressing
concerns of the long term public health and safety of this specific proposal before
the Pollution Control Board. Therefore, I request a public hearing be held in
Clinton, Illinois. This second hearing will allow residents of DeWitt and
surrounding counties an opportunity to participate in a public hearing regarding
this important issue. I also respectfully request that the Board make every effort
to schedule a public hearing for evening hours in order to make public attendance
possible.
Id
.
In its August 14, 2008 response (Hrg. Resp. 1) opposing Representative Mitchell’s
hearing request, PDC states that the Board properly selected Peoria County as the forum for the
public hearing because “the waste stabilization facility at issue is in Peoria County.” Hrg. Resp.
1 at 2. PDC, observing that “Peoria is approximately one hour from Clinton by car,” further
asserts that any concerned citizens of DeWitt County will have the opportunity to speak at the
August 18, 2008 hearing in Peoria.
Id
. It is clear from Representative Mitchell’s letter, PDC
continues, that DeWitt County citizens are aware of the hearing.
Id
. Moreover, PDC notes that
the citizens of DeWitt County will be allowed to submit written public comments to the Board
for a period of time after the hearing. According to PDC, “[t]he rights of the citizens of DeWitt
County are clearly being protected by holding the public hearing in Peoria on Monday, August
18, 2008.”
Id
.
PDC states that Representative Mitchell’s request for a hearing in DeWitt County is
“based upon his concern that delisted waste may be accepted at Clinton Landfill, Inc., located in
DeWitt County.” Hrg. Resp. 1 at 2. PDC represents that at a special meeting of the DeWitt
County Board on August 13, 2008, the DeWitt County Board considered a resolution to request
that the Board hold a public hearing in DeWitt County, “as is requested in Representative
Mitchell’s letter.”
Id
. PDC further states that representatives of Clinton Landfill, Inc., the owner
of Clinton Landfill:
made a commitment to the [DeWitt] County Board that Clinton Landfill, Inc.
would not accept any waste delisted by the Pollution Control Board pursuant to
the instant petition without prior permission from the DeWitt County Board,
subject to whatever public hearings and procedures the County Board saw fit to
require. (Clinton Landfill, Inc. is affiliated with Peoria Disposal Company, the
Petitioner in this case). Clinton Landfill, Inc.’s commitment will be reduced to
writing in an amendment to the Host Agreement with DeWitt County.
Id
. at 2-3.
PDC maintains therefore that “Representative Mitchell’s concerns regarding local input have
been addressed,” adding that the DeWitt County Board “voted 10-2 against the pending
resolution to request a Pollution Control Board hearing in DeWitt County on this matter.”
Id
. at
3.
3
For these reasons, PDC requests that the Board decline Representative Mitchell’s request
for an additional hearing. Hrg. Resp. 1 at 3.
CITIZENS’ REQUESTS FOR ADDITIONAL HEARINGS
At the Board’s August 21, 2008 meeting, the Board reserved ruling on all pending
requests for an additional public hearing in this proceeding, including the hearing request of
Representative Mitchell. As noted by the Board in its order of August 21, 2008, several citizen
hearing requests were made verbally on the record at the August 18, 2008 hearing in Peoria,
which was transcribed by a certified court reporter. Accordingly, these citizen requests, and the
reasons given by the citizens for requesting another hearing, would be set forth in the official
hearing transcript.
See
RCRA Delisting Adjusted Standard Petition of Peoria Disposal
Company, AS 08-10, slip op. at 1 (Aug. 21, 2008). The Board received the 139-page transcript
(Tr.) on August 25, 2008, and promptly made it available to the public on the Board’s website
(www.ipcb.state.il.us
) through the Clerk’s Office On Line (COOL).
On the record at the August 18 hearing, the following six citizens requested that the
Board hold one or more additional hearings: Mr. Matt Varble, resident of DeWitt County and
President of “WATCH Clinton Landfill” (“We’re Against Toxic Chemicals”) (WATCH) (Tr. at
45-55); Mr. Rudy Habben, a resident of Peoria County and the Vice-Chairman of the Heart of
Illinois Sierra Club (Tr. at 70-73); Ms. Tessie Bucklar, a resident of Peoria County (Tr. at 73-77);
Ms. Diane Jorgensen, a resident of Tazewell County and member of the Heart of Illinois Sierra
Club (Tr. at 78); Mr. David Taylor, an elected trustee for the Village of Wapella in DeWitt
County (Tr. at 85-86); and Mr. Rick Fox (Tr. at 138).
See
AS 08-10 Hearing Report at 1,
Attachment A (Aug. 19, 2008). An additional citizen request for another hearing was made in a
written public comment filed on August 25, 2008 (PC 20) by Lisa Offutt, a resident of Peoria
County and a member of Peoria Families Against Toxic Waste.
Mr. Varble of WATCH requests that a hearing be held in Clinton, DeWitt County. Tr. at
47, 55. Quoting Section 28(a) of the Environmental Protection Act (Act) (415 ILCS 5/28(a)
(2006)), Mr. Varble states that “in the case of statewide regulations[,] hearings shall be held in at
least two areas.” Tr. at 45-47, citing the Board’s procedural rules at 35 Ill. Adm. Code 102.412.
Mr. Varble asserts that failing to hold the second hearing “would result in material prejudice” to
the residents of DeWitt County:
[W]e grant that the treatment process is site-specific to Peoria. That said, the
potential impact from this K061 delisting is effectively converting subtitle D
landfills into hazardous landfills without local siting approvals if an error is made
and the resulting residue starts to exhibit its previous hazardous characteristics at
some time in the future.
While hearings at all subtitle D locations statewide may not be practical, we feel
hearings at two locations as required by 415 ILCS 5/28a and at the next closest
site, which is Clinton, is not only required but prudent. Tr. at 47-48.
4
Mr. Varble also argues that DeWitt County residents did not receive adequate notice of
the Board’s August 18 hearing “to enable their informed participation.” Tr. at 48. He states that
WATCH was informed of the hearing by the Heart of Illinois Sierra Club on August 7, 2008,
eleven days before hearing.
Id
. According to Mr. Varble, there needs to be adequate time to
educate DeWitt County residents on this delisting request and to allow for the “forming of
opinions.” Tr. at 52.
Mr. Varble also maintains that DeWitt County residents did not have adequate
transportation to the Peoria hearing, representing that DeWitt County has “a larger-than-average
senior population . . . living on fixed incomes [and] a larger-than-average poverty level
population with inadequate private transportation . . . .” Tr. at 52.
Finally, Mr. Varble asserts that PDC’s offered amendment to the host agreement with
DeWitt County “is not an adequate substitute for the right for concerned residents to express
their concerns directly as would be afforded them if a hearing was convened in Clinton.” Tr. at
54-55.
Mr. Rudy Habben, a resident of Peoria County and the Vice-Chairman of the Heart of
Illinois Sierra Club, requests that a second hearing be held because “this delisting could impact
municipal waste landfills across Illinois.” Tr. at 71-72. He asks that the hearing be held in
Clinton. Tr. at 72.
Ms. Tessie Bucklar, a resident of Peoria County, requests that “public hearings be held in
both Clinton and Hopedale,
1
Illinois, so that citizens of those communities can have the same
chance to voice their concerns as I have.” Tr. at 77.
Ms. Diane Jorgensen, a resident of Tazewell County and member of the Heart of Illinois
Sierra Club, requests a hearing in Clinton, adding that “[t]his delisting will create a statewide
rule change allowing PDC to send its EAF [dust] to any subtitle D municipal waste landfill in
Illinois.” Tr. at 78.
Mr. David Taylor, an elected trustee for the Village of Wapella in DeWitt County,
requests that the Board hold a public hearing in DeWitt County for the residents of DeWitt
County: “As an elected trustee, I feel it’s my obligation to request that for those who did not
have notice and for those who have concerns.” Tr. at 85-86.
Mr. Rick Fox made the final hearing request on August 18, suggesting that multiple
additional hearings be held:
1
Tazewell County Landfill, Inc., doing business as Indian Creek Landfill No. 2, is located in
Hopedale, Tazewell County. PDC’s April 2008 petition identifies Indian Creek Landfill No. 2,
along with Clinton Landfill, Inc. and Pike County Landfill, Inc., as being among the “[p]otential
Subtitle D landfills to which delisted EAFDSR [Electric Arc Furnace Dust Stabilized Residue]
may be shipped,” adding that “Indian Creek Landfill No. 2 is the most likely facility that will be
used to dispose of the EAFDSR.”
See
Petition, Technical Support Document at 2-3.
5
In the application [
i.e.
, PDC’s petition] there are three landfills stated. And we
have the Tazewell and DeWitt County facilities. There is also one in Pike
County.
2
And I would like to make the request that there be a public hearing
there for those folks so they can have an opportunity to have this discussion as
well. Tr. at 138.
In addition to his oral request and reasoning for another hearing stated on the record at
the August 18 hearing, Mr. Varble, President of WATCH, submitted post-hearing public
comments concerning a second hearing. In PC 6, received on August 19, 2008, Mr. Varble
argues that another hearing is needed because of several “procedural complaints” he has about
the conduct of the August 18 hearing. Mr. Varble complains that the Board hearing officer
“limited participation to no more than 10 minutes per person” and did not permit him to
complete his presentation. PC 6 at 1. Further, Mr. Varble claims that during his presentation,
the hearing officer allowed PDC’s legal counsel “to interrupt and present arguments” responding
to his comments, reducing the “limited time” he was allotted to speak.
Id
. According to Mr.
Varble, no time limit for commenters was announced at the beginning of the hearing, several
commenters spoke for more than ten minutes, and “Corporation Representatives from the Steel
industry . . . speaking in favor of the delisting petition” were given “NO time limit reminder” by
the hearing officer.
Id
. at 1-2 (emphasis in original). Mr. Varble asks for another hearing at
which there should be “a stricter adherence to rules and procedures . . . during the public
commenting process.”
Id
. at 2.
In PC 19, received on August 25, 2008, Mr. Varble repeats many of the points he made at
hearing, adding that “a legal notice published in the local Peoria newspaper, as required by
statute,” was ineffective for “residents impacted by this hearing outside of the Peoria area.” PC
19 at 4 (referring to Clinton as “the next closest PDC site outside of the geographic region of the
8/18/08 hearing” (
id
. at 1)). Mr. Varble also suggests that an “alternative” to a second hearing
would be to give DeWitt County residents four months to develop and submit written public
comments:
Peoria County residents have had since late April 2008 to learn of the delisting
issues and decide whether or not to attend this hearing and express any concerns.
*** [T]he amount of time necessary is probably best demonstrated by that
afforded Peoria County residents – four months, instead of the 11 days allowed so
far.
Id
. at 3.
The last citizen request for another hearing came in an August 25, 2008 public comment
(PC 20) filed by Lisa Offutt, a resident of Peoria County and a member of Peoria Families
Against Toxic Waste. According to Ms. Offutt, the three landfills in three separate counties
specifically listed in PDC’s petition “can reasonably be expected to be affected by PDC’s
activities.” PC 20 at 2. Ms. Offutt asserts that allowing PDC to dispose of the delisted material
in any municipal landfill in the State of Illinois “radically widens the pool of counties likely to be
2
Pike County Landfill, Inc. is located in Baylis, Pike County.
See
Petition, Technical Support
Document at 2-3;
see also
n.1 above.
6
affected by this delisting, should it go forward.”
Id
. Ms. Offutt comments that the deadline for
requesting a public hearing is 21 days after the posting of the notice, but asks “how likely is it
that citizens of DeWitt, Tazewell, and Pike counties would just happen [to] be reading the fine
print in the Peoria Journal Star classified section on the day it was published?”
Id
. Ms. Offutt
argues that merely satisfying “the letter of the law” is a “necessary but not sufficient condition
for honorable and ethical behavior.”
Id
. Ms. Offutt therefore requests:
that a second public hearing be held in Clinton, Illinois, regarding this PDC
delisting application, per 415 Illinois Compiled Statutes, 5, Section 28, (a). This
delisting will create a state-wide rule change allowing PDC to send EAF to any
Subtitle D municipal waste landfill in Illinois.
Id
.
As provided in the Board’s August 21, 2008 order, any response from PDC or IEPA to
the citizen hearing requests was required to have been received by the Clerk of the Board no later
than 10:00 a.m. on September 2, 2008.
See
RCRA Delisting Adjusted Standard Petition of
Peoria Disposal Company, AS 08-10, slip op. at 1 (Aug. 21, 2008). On August 29, 2008, PDC
filed a response (Hrg. Resp. 2) opposing the citizen requests for an additional hearing made
orally at the August 18 hearing. IEPA, on September 2, 2008, filed a response to several public
comments, but noted that IEPA “takes no position” on whether the “multiple requests” for an
additional public hearing “should be granted, but rather leaves the matter entirely to the sound
discretion of the Board.” IEPA Response at 1.
PDC emphasizes in its response that by Board regulation (35 Ill. Adm. Code 720.122(n)),
delistings that have not been adopted by the United States Environmental Protection Agency
(USEPA) may be proposed to the Board by adjusted standard petition. Hrg. Resp. 2 at 1.
Further, when an adjusted standard petition is filed, Section 28.1 of the Act (415 ILCS 5/28.1(a)
(2006)) calls upon the Board to make an “adjudicatory determination.”
Id
.
The Board’s procedural rules concerning adjusted standards, PDC continues, provide that
a hearing is not always required, but a public hearing will be held upon the request of any person
received by the Board within 21 days after publication of notice of the petition’s filing. Hrg.
Resp. 2 at 1-2, citing 35 Ill. Adm. Code 104.408, 104.420. These Board hearing provisions are
“more liberal” than corresponding USEPA procedures for RCRA delistings, according to PDC.
Id
. at 2. PDC explains:
When a request for RCRA delisting is presented directly to the USEPA for an
administrative determination, a public hearing is held only at the discretion of the
USEPA Administrator, upon the written request of an interested person, who must
“state the issues to be raised and explain why written comments would not suffice
to communicate the person’s views.”
Id
., quoting 40 C.F.R. § 260.20(d).
On April 28, 2008, PDC published notice of the filing of its adjusted standard petition.
PDC asserts therefore that requests for public hearing should have been filed no later than May
19, 2008, twenty-one days after notice. Hrg. Resp. 2 at 2. PDC notes that because requests for
hearing were made within 21 days, the Board held a hearing, which took place on August 18,
2008, at the Peoria Public Library in Peoria, Peoria County.
Id
. at 2-3. PDC further notes that
7
on August 11, 2008, “105 days after the date of the publication of the petition notice,”
Representative Bill Mitchell requested that the Board hold a second public hearing, specifically
in DeWitt County.
Id
. at 3.
PDC states that it presented the testimony of qualified expert witnesses at hearing.
Though neither Board nor IEPA staff present questioned these witnesses at hearing, PDC
observes that the Board posed to PDC a comprehensive list of pre-hearing questions to which
PDC had responded before hearing, and IEPA filed a recommendation to which PDC responded
before hearing. Hrg. Resp. 2 at 3-4. Further, technical staff from both IEPA and USEPA
provided pre-filing input to PDC on the delisting petition.
Id
. at 4.
PDC observes that twenty-seven persons offered oral public comment at hearing,
including representatives from five of the ten steel mills that send their K061 waste to PDC for
treatment and disposal. Hrg. Resp. 2 at 4. According to PDC, during this public comment
session, Mr. Varble asked for a second hearing and asserted that the Act’s rulemaking provisions
require two public hearings in this proceeding.
Id
. at 4-5. PDC counters that an adjusted
standard proceeding, such as this delisting request, is a not a “statewide rulemaking of general
applicability.”
Id
. at 5. Instead, PDC seeks an adjudicatory determination from the Board that
would, “on the basis of a highly technical demonstration, approve a site-specific process that
delists a particular hazardous waste so that it can be safely disposed of in a Subtitle D landfill,
instead of a Subtitle C landfill.”
Id
. PDC asserts:
That the resulting treated waste would be characterized in a manner that allows
for disposal in any Illinois permitted Subtitle D landfill does not turn this
proceeding into a rulemaking of general applicability, nor does it in any way
implicate local govermnent siting pursuant to Section 39.2 of the Act [415 ILCS
5/39.2 (2006)].
Id
.
PDC argues that the August 18 public hearing was sufficient and maintains that further
public hearings, to allow for additional oral public comment, “will not serve to provide evidence
which further informs the Board on the viability of PDC’s proposed technical process, which is
the decision the Board is here called upon, and qualified to, determine.” Hrg. Resp. 2 at 5. PDC
further asserts that the Board’s hearing was fair, adding that the hearing’s transcript
“demonstrates that any claims of public commentors otherwise are misplaced.”
Id
.
In addition, PDC states that the Board’s hearing meets the requirements of the Act and
maintains that more hearings that “serve to delay” a Board determination “will highly prejudice”
PDC. Hrg. Resp. 2 at 5. Given the “limited space available” for disposal at PDC’s Peoria
County facility, an “affirmative decision on this petition by the Board is essential to PDC’s
continued ability to treat K061 waste into 2009.”
Id
. at 6. PDC urges that this case proceed
according to the schedule announced by the hearing officer at hearing, including the public
comment deadline of September 11, 2008, and the respective brief filing deadlines of September
25 and October 2, 2008, for PDC and IEPA.
Id
.
8
SENATOR BRADY’S LETTER CONCERNING
ADDITIONAL HEARINGS
On August 29, 2008, State Senator Bill Brady of the 44th District filed a letter with the
Board (PC 24) stating that it is his “opinion that further public hearings in Peoria Disposal
Company’s (PDC) delisting petition do not appear to be necessary, especially given PDC’s
voluntary commitment to DeWitt County concerning Clinton Landfill.” PC 24 at 1. Senator
Brady notes that both Indian Creek Landfill and Clinton Landfill are located within the 44th
District.
Id
. It is the Senator’s understanding that the Hopedale Township Board has “expressed
its support of PDC’s K061 delisting petition” and that IEPA has reviewed PDC’s petition and
“has no objection” to the Board granting the delisting.
Id
.
Senator Brady states that PDC is an 80-year old central Illinois company with “an
excellent and long history of compliance with environmental law and regulations.” PC 24 at 2.
It is Senator Brady’s understanding that if PDC does not receive the K061 delisting, PDC:
may be forced to lay off most of its 70 union employee work force in Peoria,
which accounts for an approximate $3,500,000 payroll, as this is the largest waste
stream that PDC currently processes at its facility in Peoria County. In addition,
PDC’s steel mill customers would have to transport their K061 waste to more
distant outlets, which would have a multi-million dollar cost impact on their
facilities. Finally, Tazewell County and Hopedale Township could stand to
collectively lose hundreds of thousands of dollars in new host fees for beneficial
programs like municipal recycling grants, environmental enforcement activities
and road improvement programs.
Id
.
Senator Brady states that for all of these reasons, including the “fact that the Illinois steel
industry” has indicated it needs PDC’s services “to continue to be competitive and keep good
paying jobs at its facilities in Illinois,” it is his opinion that further public hearings do not appear
necessary. PC 24 at 2. The Senator concludes by urging the Board to reach an expedited
decision on PDC’s petition.
Id
.
DISCUSSION
The Board has thoroughly reviewed each of the requests that the Board hold one or more
additional public hearings in this adjusted standard proceeding, as well as each of the responses
to the requests. For the reasons provided below, the Board declines to hold another hearing. As
explained in the conclusion of this order, however, the Board will keep the public comment
period open for 14 extra days based on the considerable public interest in this case.
The 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 proposal.
See
415 ILCS 5/28.1(d)(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 re
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.
9
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, the 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 with the Board, documenting
that the required notice of the petition was published on April 28, 2008, in the
Peoria Journal
Star
. The Board found in its June 5, 2008 order that PDC met the notice requirements of the Act
and the Board’s procedural rules.
See
RCRA Delisting Adjusted Standard Petition of Peoria
Disposal Company, AS 08-10, slip op. at 2 (June 5, 2008).
Under the Act, the Board “shall hold a public hearing” whenever a request is made within
21 days after publication of newspaper notice of the adjusted standard petition.
See
415 ILCS
5/28.1(d)(2) (2006);
see also
35 Ill. Adm. Code 104.408. As found in the Board’s order of June
5, 2008, the Board received timely hearing requests on May 12, 14, 17, and 19, 2008.
See
RCRA Delisting Adjusted Standard Petition of Peoria Disposal Company, AS 08-10, slip op. at 2
(June 5, 2008);
see also
35 Ill. Adm. Code 104.420(a) (“The requests must be filed not later than
21 days after the date of publication of the petition notice.”), 104.422(a)(2).
The Board therefore directed that a public hearing be held, even though PDC had waived
hearing.
See
RCRA Delisting Adjusted Standard Petition of Peoria Disposal Company, AS 08-
10, slip op. at 2 (June 5, 2008). The Act provides that if a hearing is to be held on an adjusted
standard petition, then “at least 20 days before the hearing the Board shall publish notice of the
hearing by advertisement in a newspaper of general circulation in the area likely to be affected.”
415 ILCS 5/28.1(d)(2) (2006). The Board’s procedural rules further provide that “[h]earings are
to be held in the county likely to be affected by the petitioner’s activity that is the subject of the
proposed adjusted standard.” 35 Ill. Adm. Code 104.422(b). The public hearing took place on
August 18, 2008, in Peoria, Peoria County. Notice of the hearing was published on July 3, 2008,
in the
Peoria Journal Star
.
The August 18 hearing was held in an auditorium at the Peoria Public Library, beginning
at 3:00 p.m., and included evening hours. As stated in the Board hearing officer’s June 16, 2008
notice of hearing: “The hearing officer will hold the record open until at least 6:00p.m., and will
stay until everyone has an opportunity to speak.” AS 08-10 Hearing Notice at 1 (June 16, 2008).
The hearing lasted until 6:35 p.m. and was attended by upwards of 100 members of the public,
including citizens of Peoria, Tazewell, and DeWitt Counties. Twenty-seven citizens provided
oral public comments at hearing, including members of the Heart of Illinois Sierra Club and
Peoria Families Against Toxic Waste, as well as Mr. Varble, President of WATCH. The hearing
officer also received seven written public comments at hearing (PC 9-15).
See
AS 08-10
Hearing Report at 1, Attachment A (Aug. 19, 2008).
PDC’s waste stabilization facility, which would be the site for receiving and treating the
K061 EAFD under PDC’s proposal, is located in Peoria, Peoria County. No one has argued to
the Board that Peoria County is not “the county likely to be affected by the petitioner’s activity”
(35 Ill. Adm. Code 104.422(b)) or that the
Peoria Journal Star
is not “a newspaper of general
10
circulation in the area likely to be affected” (415 ILCS 5/28.1(d)(2) (2006)). In fact, Mr. Varble
conceded at the August 18, 2008 hearing that the “public hearing . . . in the affected county . . . is
what we are at today.” Tr. at 46.
The Board appreciates the concerns expressed about the inherent limits of newspaper
notices and the availability of viable transportation for citizens to attend hearings. The Board
does not suggest that no other area or county of the State could be affected if PDC’s requested
delisting is granted. PDC’s petition seeks permission to be able to dispose of the treated EAFD,
if delisted, in any Subtitle D non-hazardous waste landfill in Illinois. Petition at 13-14. Of
course, potential environmental concerns rarely if ever respect political boundaries, and given the
reality of finite administrative resources, the adjusted standard provisions wisely require only
that the notice be provided and the hearing be held in “the” area or county “likely” to be affected.
415 ILCS 5/28.1(d)(2); 35 Ill. Adm. Code 104.422(b) (2006). More importantly, however,
especially with the expanded public comment period discussed below, citizens from every
county in the State have the opportunity to express their views through written public comment,
which the Board will give the same weight as any oral comments that would be received at the
requested hearings in DeWitt, Tazwell, and Peoria Counties.
In addition, though not legally required, the Board did provide public notice of both
PDC’s April 25, 2008 petition and the Board’s August 18, 2008 hearing through the Board’s
website and monthly newsletter, the
Environmental Register
. For example, notice of the August
18 hearing was given on the Board website’s “Calendar of Events” roughly two months before
hearing. PDC’s petition, including its references to Clinton Landfill, Pike County Landfill, and
Indian Creek Landfill No. 2, has been available to the public on the Board’s website since it was
filed in April of this year, some four months before hearing.
See
Petition, Technical Support
Document at 2-3.
The Board finds that Mr. Varble’s and Ms. Offutt’s reliance on Section 28(a) of the Act
(415 ILCS 5/28(a) (2006)) is misplaced. That provision, requiring that a hearing be held in “at
least two areas,” applies only to rulemaking proceedings in which the Board is considering a
proposal for a statewide regulation. 415 ILCS 5/28(a) (2006);
see also
35 Ill. Adm. Code
102.412(a). On the other hand, an adjusted standard proceeding, like PDC’s delisting request, is
not a rulemaking and cannot amend a statewide regulation. This is made clear in the Act, which
explicitly exempts adjusted standard proceedings from the rulemaking provisions of the Act and
the Illinois Administrative Procedure Act (5 ILCS 100 (2006)).
See
415 ILCS 5/28.1(a) (2006).
Rather, an adjusted standard request is an adjudicatory proceeding, by which the petitioner seeks
an alternative standard that would apply to the petitioner in lieu of the regulation of general
applicability.
See
415 ILCS 5/28.1(a) (2006).
Nor does the official transcript of the August 18, 2008 hearing support Mr. Varble’s
claims of procedural irregularities. Twenty-seven persons signed up at hearing to provide oral
comment.
See
AS 08-10 Hearing Report at 1, Attachment A (Aug. 19, 2008). To give each
person the chance to speak after PDC’s presentation, the hearing officer necessarily limited the
time period of each commenter. Those commenters who approached ten minutes of speaking
time were appropriately reminded by the hearing officer to conclude their remarks.
See
,
e.g.
, Tr.
at 110. The hearing officer has the authority to establish such reasonable time limits.
See
35 Ill.
11
Adm. Code 101.610(e). Commenters were also informed by the hearing officer that their oral
comments could be supplemented in writing.
See
,
e.g.
, Tr. at 51, 61.
Further, PDC’s legal counsel breached no procedural rule by objecting to a portion of Mr.
Varble’s comment at hearing and supporting that objection with argument.
See
35 Ill. Adm.
Code 101.610(l). The objection took only a few moments (
see
Tr. at 50-51) and did not reduce
Mr. Varble’s available speaking time.
3
Mr. Varble’s oral comments were lengthier than those of
most of the other speakers. The transcript also reflects that, contrary to his assertion, Mr. Varble
ended his comments of his own accord.
See
Tr. at 55. Moreover, as stated by the hearing officer
at hearing, not only may all interested persons file written public comments with the Board, but
those written filings are given no less weight by the Board than the oral comments received at
the August 18 hearing.
See
Tr. at 61. The Board notes that Mr. Varble has availed himself of the
ability to supplement his oral comments, having since submitted ten written comments.
See
PC
6-8, PC 17-19, PC 21, PC 22, PC 25, PC 26.
The Board has always considered public participation in Board proceedings to be vital to
the efficacy of Illinois’ system of environmental decision-making. That “the public may
participate in various types of environmental matters before the Board” is “one of the
philosophical underpinnings of the Act.” Revision of the Board’s Procedural Rules: 35 Ill.
Adm. Code 101-130, R00-20, slip op. at 4 (Dec. 21, 2000). The Board believes that the hearing
held on August 18 in Peoria provided a meaningful opportunity for citizens to participate. The
attendance at that hearing confirms that numerous members of the public were able to and did
take advantage of that opportunity. The hearing, however, was but one way for citizens to
participate in this proceeding. Public comments, whether transcribed at hearing or submitted in
writing, become a part of the official record of this case and are thoroughly reviewed by the
Board. The Board has received 26 written public comments in this proceeding so far, most of
which were filed after the close of the August 18 hearing.
Aside from PDC’s assurances regarding the disposal of any delisted material at Clinton
Landfill, the Board wishes to emphasize to Representative Mitchell, Senator Brady, and all
concerned citizens the nature of a RCRA delisting proceeding. Consistent with USEPA criteria,
the Board’s regulations require a delisting petitioner to prove, among other things, that the
treated material “does not meet any of the criteria under which the waste was listed as a
hazardous or acute hazardous waste” and “does not exhibit any of the characteristics” of
hazardous waste.
See
35 Ill. Adm. Code 720.122(a)(1), (d)(3);
see generally
35 Ill. Adm. Code
720.122(a), (b), (d), (n). In short, to receive a delisting, it must be shown that the material is no
longer hazardous waste under RCRA. Without this demonstration by PDC to the Board’s
satisfaction, the K061 EAFD treatment residue cannot be delisted and, by law, cannot be
disposed of in any Subtitle D non-hazardous waste landfill in Illinois. Furthermore, when the
Board decides this case on the merits, the Act requires that the Board “issue an order and opinion
3
PDC’s attorney pointed out that Mr. Varble was relying upon the rulemaking provisions of the
Act and the Board’s procedural rules (415 ILCS 5/28(a) (2006); 35 Ill. Adm. Code 102.412)
rather the adjusted standard provisions.
See
Tr. at 50-51. The procedures that govern an
adjusted standard proceeding are found in Section 28.1 of the Act and Part 104, Subpart D of the
Board’s procedural rules.
See
415 ILCS 5/28.1 (2006); 35 Ill. Adm. Code 104.400-104.428.
12
stating the facts and reasons leading to the final Board determination.” 415 ILCS 5/28.1(d)(3)
(2006).
4
The Board stresses that it is carefully scrutinizing PDC’s petition, as it does all delisting
requests. For example, because the Board found shortcomings in the technical justifications of
their respective petitions, BP Products North America, Inc. and Waste Management of Illinois,
Inc. were recently denied delisting requests.
See
Petition of BP Products North America, Inc. for
RCRA Waste Delisting Under 35 Ill. Adm. Code 720.122, AS 07-1 (Feb. 15, 2007); Petition of
Waste Management of Illinois, Inc. for RCRA Waste Delisting Under 35 Ill. Adm. Code 720.122
for Solid Treatment Residual for CID Recycling and Disposal Facility Biological Liquid
Treatment Center, AS 05-7 (Dec. 15, 2005). Here, for instance, through a July 15, 2008 hearing
officer order, the Board raised four pages of detailed questions and issues regarding PDC’s
petition, requiring PDC to respond before hearing. PDC timely responded on August 7, 2008,
with a 137-page filing, which the Board will take into account along with the rest of the record of
this proceeding, including the hearing testimony of PDC in support of its request and the oral and
written public comments of all interested persons.
Under these circumstances, the Board declines the requests to hold another public
hearing.
CONCLUSION
The Board appreciates the keen public interest in this case, and has carefully considered
all of the requests for holding one or more additional public hearings, including all of the
arguments articulated in support of and in opposition to the requests. For the reasons provided in
this order, the Board declines the requests to hold another hearing. In doing so, the Board
reiterates two points made above. First, concerned citizens have had, and will continue to have
through the extended the public comment period, meaningful opportunities to be heard
concerning PDC’s delisting request. Second, the residue from PDC treating K061 EAFD cannot
be delisted without proof, in accordance with strict federal standards, that the material is no
longer hazardous waste under RCRA.
This proceeding has benefited from the citizen contributions made to the record at and
after the August 18, 2008 public hearing in Peoria. Twenty-seven oral and seven written public
4
This adjusted standard proceeding, Board docket AS 08-10, in which the Board is considering
PDC’s RCRA delisting request, is separate and distinct from two recent proceedings before the
Board involving PDC. In Board docket PCB 06-184, the Board on June 21, 2007, affirmed the
Peoria County Board’s decision to deny siting approval of PDC’s application to site an
expansion of PDC’s hazardous waste landfill.
See
Peoria Disposal Company v. The Illinois
Pollution Control Board and County of Peoria, No. 3-07-0435 (3rd Dist.),
appeal pending
. In
Board docket PCB 08-25, the Board on January 10, 2008, affirmed IEPA’s denial of PDC’s
application for modification of its RCRA Part B permit to allow the expansion necessary to
construct a proposed residual waste landfill.
See
Peoria Disposal Company v. Illinois Pollution
Control Board and Illinois Environmental Protection Agency, No. 3-08-0030 (3rd Dist.),
appeal
pending
.
13
comments were received at hearing, and the Board has received numerous written public
comments since the close of hearing. The Board welcomes continued public participation
through the submission of written public comments, which form a critical part of this
proceeding’s official record. To that end, and given the substantial public interest in this case,
the Board extends by 14 days the deadline for filing public comments, from September 11, 2008
to September 25, 2008. In light of this extension, the post-hearing briefs of PDC and IEPA will
be due on October 9, 2008 and October 23, 2008, respectively, though either party may file
sooner.
5
The Board takes public comments very seriously, whether made orally at hearing or in
writing. The Board encourages interested persons filing public comments to include all of the
information they wish the Board to consider when the Board makes its final decision on PDC’s
petition. Written public comments may be submitted to the Board at:
Office of the Clerk
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Board docket AS 08-10 should be indicated on the public comment. Additionally, public
comments may be filed electronically through the Clerk’s Office On Line (COOL) on the
Board’s website at www.ipcb.state.il.us. Any person may file a public comment, regardless of
whether the person has already provided oral or written public comment in this proceeding. The
August 18 hearing transcript, as well as most other documents making up the official record of
this proceeding, may be viewed, searched, and downloaded through COOL.
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 September 4, 2008, by a vote of 4-0
___________________________________
John T. Therriault, Assistant, Clerk
Illinois Pollution Control Board
5
If IEPA decides not to file a post-hearing brief, it must notify the hearing officer as soon as that
decision is made.
