ILLINOIS POLLUTION CONTROL BOARD

December 4, 2008

IN THE MATTER OF:

PETITION OF BFI WASTE SYSTEMS OF

NORTH AMERICA, INC. FOR WASTE

DELISTING

)

)

)

)

)

AS 08-5

(Adjusted Standard – RCRA)

PATRICIA F. SHARKEY OF MCGUIRE WOODS LLC APPEARED ON BEHALF OF BFI

WASTE SYSTEMS OF NORTH AMERICA, INC; and

WILLIAM D. INGERSOLL APPEARED ON BEHALF OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY.

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

BFI Waste Systems of North America, Inc. (BFI) petitioned the Board for an adjusted

standard to “delist” certain material from the Resource Conservation and Recovery Act (RCRA)

list of hazardous wastes. The material at issue is leachate generated at the closed Phase I unit of

BFI’s Davis Junction Landfill in Ogle County. “Leachate” is defined as “any liquid, including any

suspended components in the liquid, that has percolated through or drained from hazardous waste.”

35 Ill. Adm. Code 721.110. BFI’s leachate falls within the category of F039 listed hazardous

waste under RCRA. The Illinois Environmental Protection Agency (IEPA) ultimately stated that

it does not object to the Board granting the requested delisting. For the reasons in this opinion,

the Board grants the adjusted standard, delisting the Phase I unit leachate, subject to the

conditions set forth in the order following the opinion.

In this opinion, the Board first provides an overview of the legal framework for today’s

decision. Next, the Board describes the procedural background of this case before making its

findings of fact. The Board then analyzes the issues and renders its legal conclusions

LEGAL FRAMEWORK

Section 22.4 of the Environmental Protection Act (Act) (415 ILCS 5/22.4 (2006))

requires the Board to adopt regulations that are “identical in substance” to federal RCRA

regulations. The Board’s regulations identifying hazardous wastes are found in 35 Ill. Adm.

Code 721. Generally, under the regulations, a solid waste is considered a hazardous waste if it

exhibits a “characteristic” of hazardous waste (ignitability, corrosivity, reactivity, or toxicity) or

if it is “listed” as hazardous waste; a characteristic hazardous waste remains a hazardous waste

as long as it exhibits a characteristic, but a listed hazardous waste remains a hazardous waste

until it is delisted. 35 Ill. Adm. Code 721.103, 721.Subparts C, D.

USEPA lists wastes as hazardous because (1) the wastes “typically and frequently exhibit

one or more of the characteristics of hazardous wastes”; (2) the wastes meet the criteria for

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2

listing (

i.e.

, contain significant levels of toxic or carcinogenic constituents, or cause specific

detrimental effects on the environment); or (3) the wastes are “mixed with or derived from the

treatment, storage or disposal of such characteristic and listed wastes and which therefore

become hazardous under . . . the ‘mixture’ or ‘derived from’ rules, respectively.” 69 Fed. Reg.

77690, 77692 (Dec. 28, 2004);

see also

“EPA RCRA Delisting Program--Guidance Manual for

the Petitioner” at 5-6, USEPA Region 6 (Mar. 23, 2000). USEPA has acknowledged, however,

that “a specific waste from an individual facility may not be hazardous” even though it

constitutes a listed waste. 69 Fed. Reg. 77690, 77692 (Dec. 28, 2004). USEPA explained:

Individual wastes may vary depending on raw materials, industrial processes, and

other factors. Therefore, 40 CFR §§ 260.20 and 260.22 contain a procedure

whereby anyone can petition [US]EPA to exclude or “delist” such a listed waste.

Originally, the overall intent of the delisting process was to ease the regulatory

burden on handlers of listed waste improperly captured by the broad listing

definitions. Delisting has since evolved to also include listed wastes that are

sufficiently treated such that they no longer pose a health threat. “EPA RCRA

Delisting Program--Guidance Manual for the Petitioner” at 6, USEPA Region 6

(Mar. 23, 2000).

Once delisted, petitioned waste is no longer considered a listed hazardous waste, and may

be managed as a non-hazardous solid waste. The generator would remain obligated, however, to

determine whether the waste is characteristically hazardous waste. “EPA RCRA Delisting

Program--Guidance Manual for the Petitioner” at 9, USEPA Region 6 (Mar. 23, 2000).

“Delisting” is a “term of art that refers to the action of excluding a waste or treated waste residue

from regulation as a hazardous waste.” Petition of Envirite Corporation for an Adjusted

Standard from 35 Ill. Adm. Code 721 Subpart D: List of Hazardous Substances, Appendix I, AS

94-10, slip op. at 1 n.2 (Dec. 14, 1994);

see also

Petition of Keystone Steel and Wire Co. for

Hazardous Waste Delisting, AS 91-1, slip op. at 18 (Feb. 6, 1992) (delisted waste “is

nonhazardous, as defined in 35 Ill. Adm. Code 721”). in 35 Ill. Adm. Code 721”).

Subpart D of Part 721 sets forth the lists of hazardous wastes. Section 721.131 includes a

list of hazardous wastes from non-specific sources (35 Ill. Adm. Code 721.131).

See

40 C.F.R.

§261.31(a). In that list, USEPA hazardous waste number F039 refers to:

Leachate (liquids that have percolated through land disposed wastes) resulting

from the disposal of more than one restricted waste classified as hazardous under

Subpart D. 35 Ill. Adm. Code 721.131.

The F039 listing has the hazard code “T,” which refers to “toxic waste,” the basis for its listing.

Id

.;

see also

35 Ill. Adm. Code 721.130(b)(1). The leachate from the Phase I unit of the Davis

Junction Landfill is considered F039 listed hazardous waste.

Appendix G of Part 721 identifies the constituents that caused USEPA to list the waste as

a toxic waste (T) in Section 721.131. 35 Ill. Adm. Code 721.130(b)(2). For F039, the hazardous

constituents for which the waste is listed are: “All constituents for which treatment standards are

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3

specified for multi-source leachate (wastewaters and nonwastewaters) under Table B to 35 Ill.

Adm. Code 728 (Constituent Concentrations in Waste).” 35 Ill. Adm. Code 721.Appendix G (40

C.F.R. 261.Appendix VII). In turn, Table B of Part 728 refers to Table T of Part 728, which sets

forth the F039 constituents and corresponding treatment standards for land disposal.

See

35 Ill.

Adm. Code 728.140, 728.Tables B, T (40 C.F.R. §§268.40, 268.41).

Under Section 720.122(n) of the Board’s hazardous waste regulations (35 Ill. Adm. Code

720.122(n)), delistings that have not been adopted by USEPA can be proposed to the Board by

way of an adjusted standard petition. Adjusted standard petitions must satisfy Section 28.1 of

the Act (415 ILCS 5/28.1 (2006)) and Part 104.Subpart D of the Board’s procedural rules (35 Ill.

Adm. Code 104.Subpart D). In accordance with Section 28.1(a) of the Act, persons seeking a

RCRA waste delisting must justify the request consistent with Section 27(a) of the Act. Section

27(a) provides:

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

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

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

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

technical feasibility and economic reasonableness of measuring or reducing the

particular type of pollution. 415 ILCS 5/27(a) (2006).

In accordance with Section 28.1(b) of the Act (415 ILCS 5/28.1(b) (2006)), the Board

has further specified the level of justification for hazardous waste delistings in Section 720.122

of the Board’s regulations (35 Ill. Adm. Code 720.122). Section 720.122 is substantively

identical to the USEPA delisting regulation at 40 C.F.R. §260.22. Section 720.122(n) states that

the justification for the adjusted standard “is as specified in subsections (a) through (g) of this

Section, as applicable to the waste in question.” 35 Ill. Adm. Code 720.122(n). The Board notes

below several of the key requirements under subsections (a) through (g) of Section 720.122.

Subsection (a) of Section 720.122 provides that the Board will grant the delisting petition

if the following occur:

1)

The petitioner demonstrates that the waste produced by a particular

generating facility does not meet any of the criteria under which the waste

was listed as a hazardous or acute hazardous waste; and

2)

The Board determines that there is a reasonable basis to believe that

factors (including additional constituents) other than those for which the

waste was listed could cause the waste to be a hazardous waste, that such

factors do not warrant retaining the waste as a hazardous waste. A Board

determination under the preceding sentence must be made by reliance on,

and in a manner consistent with, “EPA RCRA Delisting Program--

Guidance Manual for the Petitioner,” incorporated by reference in Section

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4

720.111(a).

1

A waste that is so excluded, however, still may be a

hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721

[characteristics of hazardous waste]. 35 Ill. Adm. Code 720.122(a).

For waste that is listed with a “T” for “toxic waste,” as is F039, subsection (d) of Section

720.122 provides:

1)

The petitioner must demonstrate that the waste fulfills the following

criteria:

A)

It does not contain the constituent or constituents (as defined in

Appendix G of 35 Ill. Adm. Code 721) that caused USEPA to list

the waste; or

B)

Although containing one or more of the hazardous constituents (as

defined in Appendix G of 35 Ill. Adm. Code 721) that caused

USEPA to list the waste, the waste does not meet the criterion of

35 Ill. Adm. Code 721.111(a)(3) when considering the factors used

in 35 Ill. Adm. Code 721.111(a)(3)(A) through (a)(3)(K) under

which the waste was listed as hazardous.

2)

Based on a complete petition, the Board will determine, if it has a

reasonable basis to believe that factors (including additional constituents)

other than those for which the waste was listed could cause the waste to be

hazardous waste, that such factors do not warrant retaining the waste as a

hazardous waste.

3)

The petitioner must demonstrate that the waste does not exhibit any of the

characteristics, defined in 35 Ill. Adm. Code 721.121 [ignitability],

721.122 [corrosivity], 721.123 [reactivity], or 721.124 [toxicity], using

any applicable methods prescribed in those Sections.

4)

A waste that is so excluded, however, may still be a hazardous waste by

operation of Subpart C of 35 Ill. Adm. Code 721 [characteristics of

hazardous waste].

2

35 Ill. Adm. Code 720.122(d).

1

“EPA RCRA Delisting Program--Guidance Manual for the Petitioner,” USEPA Region 6 (Mar.

23, 2000).

See

USEPA Region 6 Delisting Guidance Manual at

http://www.epa.gov/region6/6pd/rcra_c/pd-o/dlistpdf.htm

(last updated Apr. 26, 2007).

2

As USEPA has noted, “[a]lthough wastes which are ‘delisted’ (i.e., excluded) have been

evaluated to determine whether or not they exhibit any of the characteristics of hazardous waste,

generators remain obligated under RCRA to determine whether or not their waste remains non-

hazardous based on the hazardous waste characteristics.” 60 Fed. Reg. 6054, 6055 (Feb. 1,

1995).

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5

As discussed later in this opinion, because BFI’s leachate contains hazardous constituents

that caused USEPA to list F039, BFI has proceeded under subsection (d)(1)(B) of Section

720.122, rather than subsection (d)(1)(A). Accordingly, the factors used in 35 Ill. Adm. Code

721.111(a)(3)(A) through (a)(3)(K) are relevant here. Section 721.111(a) reads as follows:

a)

USEPA stated in corresponding federal 40 CFR 261.11 that it lists a solid

waste as a hazardous waste only upon determining that the solid waste

meets one of the following criteria:

* * *

3)

Toxic waste. The solid waste contains any of the toxic

constituents listed in Appendix H of this Part and, after

considering the following factors, USEPA concludes that the waste

is capable of posing a substantial present or potential hazard to

human health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed:

***

A)

The nature of the toxicity presented by the constituent;

B)

The concentration of the constituent in the waste;

C)

The potential of the constituent or any toxic degradation

product of the constituent to migrate from the waste into

the environment under the types of improper management

considered in subsection (a)(3)(G) of this Section;

D)

The persistence of the constituent or any toxic degradation

product of the constituent;

E)

The potential for the constituent or any toxic degradation

product of the constituent to degrade into nonharmful

constituents and the rate of degradation;

F)

The degree to which the constituent or any degradation

product of the constituent bioaccumulates in ecosystems;

G)

The plausible types of improper management to which the

waste could be subjected;

H)

The quantities of the waste generated at individual

generation sites or on a regional or national basis;

I)

The nature and severity of the human health and

environmental damage that has occurred as a result of the

improper management of the wastes containing the

constituent;

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6

J)

Action taken by other governmental agencies or regulatory

programs based on the health or environmental hazard

posed by the waste or waste constituent; and

K)

Such other factors as may be appropriate. 35 Ill. Adm.

Code 721.111(a).

Though BFI acknowledges that the Phase I unit leachate contains some of the constituents for

which F039 was listed as a hazardous waste, BFI maintains that its analysis demonstrates that the

leachate does not contain concentrations of those constituents that meet the criterion for listing

F039 as a toxic waste under 35 Ill. Adm. Code 721.111(a)(3). Br. at 2.

In addition to the “EPA RCRA Delisting Program--Guidance Manual for the Petitioner,”

USEPA Region 6 (Mar. 23, 2000), the Board has looked to whether the petitioner addressed

USEPA’s Delisting Risk Assessment Software (DRAS) when the Board has considered a

delisting request.

See

Petition of BP Products North America, Inc. For RCRA Waste Delisting

Under 35 Ill. Adm. Code 720.122, AS 07-1, slip op. at 7-9 (Feb. 15, 2007). DRAS is a computer

program that that predicts potential risks to human health and the environment posed by wastes

if they are delisted and disposed of in an unlined Subtitle D landfill or surface impoundment.

3

For a given waste stream, DRAS calculates the waste’s cumulative cancer risks and non-

carcinogenic hazard indices, as well as back-calculates each waste constituent’s maximum

allowable waste constituent concentration permissible for delisting. The use of DRAS is not a

regulatory requirement when evaluating a petitioned waste, and DRAS risk assessment results

are but one factor the Board may consider in its delisting decision.

See

BP Products North, AS

07-1, slip op. at 6 n.2; USEPA Region 6 RCRA-Risk Assessment Program at

http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/midlo.htm#risk

(last updated Sept. 10, 2007); PC 2

at 1.

The Board has also relied upon USEPA’s “RCRA Delisting Technical Support

Document,” USEPA Region 6, EPA906-D-98-001 (Aug. 1, 2000).

See

BP Products

, AS 07-1,

slip op. at 7. The Delisting Technical Support Document delineates all chemical release,

exposure, and risk assessment algorithms used by DRAS.

See

USEPA Region 6 Delisting

Technical Support Document at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dtsd.htm

(last

updated Apr. 26, 2007).

PROCEDURAL BACKGROUND

3

A “surface impoundment” is “a facility or part of a facility that is a natural topographic

depression, manmade excavation, or diked area formed primarily of earthen materials (although

it may be lined with manmade materials) that is designed to hold an accumulation of liquid

wastes or wastes containing free liquids and which is not an injection well. Examples of surface

impoundments are holding, storage, settling and aeration pits, ponds, and lagoons.” 35 Ill. Adm.

Code 720.110.

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7

On November 21, 2007, BFI filed its adjusted standard petition for waste delisting (Pet.),

accompanied by a Technical Support Document (Att. 1) prepared by BFI’s consultant, Weaver

Boos Consultants North Central, LLC (Weaver Boos). On December 10, 2007, BFI filed a

certificate of publication, documenting that notice of the petition was published on November 28

and 29, 2007, in

The Rockford Register Star

. As discussed below, effective December 30, 2007,

“BFI Waste Systems of North America, Inc.,” a Delaware corporation registered to do business

in Illinois, became the Delaware limited liability company “BFI Waste Systems of North

America, LLC.”

On January 10, 2008, the Board issued an order finding that BFI had met the adjusted

standard notice requirements of the Act and the Board’s procedural rules (415 ILCS 5/28.1(d)(1)

(2006); 35 Ill. Adm. Code 104.408(a)). In the same order, the Board accepted the delisting

petition for hearing (35 Ill. Adm. Code 104.422).

IEPA filed a recommendation on March 28, 2008 (Rec.). IEPA recommended that the

Board deny BFI’s adjusted standard request. By order of April 4, 2008, the Board’s hearing

officer directed BFI to respond to a number of attached questions prepared by Board staff. On

April 14, 2008, BFI filed a response to IEPA’s recommendation (Resp.), along with a motion to

amend the petition, attaching the amendment (1st Am. Pet.).

On April 17, 2008, the Board issued an order granting BFI’s motion to amend the

original petition and accepting the first amendment for consideration. On April 24, 2008, IEPA

filed an amended recommendation (Am. Rec.), stating that IEPA does not object to BFI’s waste

delisting request after taking into account BFI’s first amendment. On May 6, 2008, BFI

submitted prefiled testimony (PFT) in response to the questions posed through the hearing

officer order of April 4, 2008.

The Board’s hearing officer held a public hearing in this case on May 15, 2008, at the

Ogle County Judicial Center in Oregon. The hearing was transcribed (Tr.). Three witnesses

testified on behalf of BFI: Elizabeth A. Steinhour, a Senior Project Manager with Weaver Boos;

Michael B. Maxwell, a Senior Project Manager with Weaver Boos; and Patricia F. Sharkey of

McGuire Woods LLC. Tr. at 5, 14-15, 33-34; Pet., App. I. Mark L. Crites, a hazardous waste

permit reviewer with IEPA, testified on behalf of IEPA. Tr. at 88. No exhibits were offered at

hearing.

On June 30, 2008, BFI filed a post-hearing brief (Br.). Also on June 30, 2008, BFI filed

a motion to amend its adjusted standard petition, attaching the second amendment (2nd Am.

Pet.). The Board grants BFI’s motion to amend and accepts the second amendment. On July 14,

2008, IEPA filed a response brief (Resp. Br.), stating that IEPA does not object to BFI’s waste

delisting request after taking into account BFI’s second amendment.

On July 24, 2008, BFI filed a reply brief (Reply Br.) and a notice of corporate conversion

and name change (Corp. Notice). On the same date, BFI filed a motion to amend its adjusted

standard petition, attaching the third amendment (3rd Am. Pet.). IEPA made no filing in

response to this motion, which is granted. Also on July 24, 2008, BFI filed a motion to correct

the hearing transcript. IEPA has not responded to this motion, which is granted.

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8

Two public comments were entered into the record: an e-mail of May 6, 2008, to Board

staff from Todd D. Ramaly, Environmental Scientist, RCRA Programs Section, USEPA Region

5, with attachments (PC 1); and a letter of July 16, 2008, to Board staff from Dale Meyer, Chief,

RCRA Programs Section, USEPA Region 5 (PC 2).

FACTS

Davis Junction Landfill

The Davis Junction Landfill is located at 8902 N. Route 251, which is in Ogle County,

approximately one mile south of the Winnebago County line. Pet. at 1, 9, Att. 1 at 2, 8. The

closest town is Davis Junction, which is located about two miles to the south. Roughly four

miles to the north is Illinois Highway 20 and the City of Rockford, and approximately two miles

to the east is Interstate 39. The Davis Junction Landfill adjoins Illinois Route 251. The truck

entrance for the landfill is on Scott Road, just west of Route 251. Pet. at 9, Att. 1, Fig. 1, 2. The

landfill occupies approximately 160 acres and is surrounded predominantly by farmland. Pet. at

9, Att. 1, Fig. 1.

Phase I Landfill Unit and Leachate

The Phase I unit of the Davis Junction Landfill operated from December 1976 to January

1983 and was certified closed in December 1984. Pet. at 7, Att. 1 at 6, 7. The Phase I unit was a

combined municipal solid waste (MSW) and RCRA Subtitle C hazardous waste disposal facility.

Pet., Att. 1 at 6. The area of the Phase I unit occupies approximately 29.5 acres.

Id

.

The Davis Junction Landfill includes two other closed landfill units, Phase II and Phase

III. Phases II and III accepted only MSW. The Phase I unit at issue in this adjusted standard

request is separated from the two closed MSW units (Phases II and III) by a clay berm and has

separate leachate collection and storage systems. Pet. at 1, n.1, Att. 1 at 6. The Phase II unit

covers about 21.2 acres, while Phase III covers approximately 22.7 acres. Pet., Att. 1 at 8.

During the Phase I unit’s active life, 87% of the waste received was general municipal

refuse, 11% was special waste,

4

and less than 2% was considered hazardous waste. Pet., Att. 1

at 6; Tr. at 15-16. The total volume of waste placed in Phase I is estimated at 1,900,000 cubic

yards, with approximately 26,000 cubic yards defined under current federal criteria as hazardous

waste. Roughly 96% of the 26,000 cubic yards consisted of heavy metal sludges; the remaining

4% consisted primarily of spent solvent still bottoms, spent solvent sludges, petroleum refining

residues, rodenticides, glycol, polystyrene, and pthalic anhydride. BFI provided a 23-page list

that includes a description of the hazardous waste disposed of in Phase I, its waste code, its

volume, and in most instances, the generator’s name. Pet., App. A.; Tr. at 15-16

4

“Special waste” means “

any hazardous waste, and any industrial process waste or pollution

control waste which has not been declassified

pursuant to Section 808.245.” 35 Ill. Adm. Code

808.110 (quoting in italics 415 ILCS 5/3.45 (2006)).

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9

Leachate from the Phase I unit is considered hazardous because of the historic disposal of

hazardous wastes within the unit. The leachate itself is typically a cloudy liquid of brownish

color, and is estimated to contain less than 0.5% solids. Pet., Att. 1 at 6, 21. The leachate is

collected within a leachate collection system and mechanically pumped through pipes in the unit

to an on-site, 20,000-gallon aboveground storage tank. The leachate is then disposed of off-site

on a regular “as needed” basis via 5,000-gallon tanker trucks.

Id

. at 6, 8-9, 16; Tr. at 132. The

original leachate collection system began operating in 1982. Installing the current upgraded

leachate collection and extraction system was undertaken in 1998-99. Pet., Att. 1 at 7-9.

Specifically, a new cover system was installed consisting of a 36-inch thick final cover

protective layer; a geotextile filter fabric; a geonet drainage layer; a 40-mil polyethylene

geomembrane; and a 24-inch compacted clay layer. When constructing the improved cover, a

dual leachate/gas extraction system consisting of extraction wells, head wells, and a header

system was also installed in Phase I.

Id

. at 9.

Phase I has 15 leachate extraction wells. Pet., Att. 1 at 9. The leachate is removed from

each well by a submersible pump and conveyed in header piping buried in the cover. Before

being routed into the storage tank, the leachate is fed to the leachate and gas condensate sumps.

Id

. The storage tank is a dedicated hazardous waste storage tank installed in a secondary

containment structure made of concrete. In an effort to contain potential leaks or spills during

loading, the loading of leachate occurs within a concrete load out pad.

Id

. Improvements were

made to the efficiency of the leachate extraction system in 2004 and 2006, increasing the volume

of leachate extracted.

Id

. (

e.g.

, well replacement and new force main (Pet. at 5)).

BFI transports the leachate to a RCRA liquid hazardous waste treatment facility for

disposal. Pet. at 8. There have been no spills during the transport of leachate from the Davis

Junction Landfill for treatment. Tr. at 66-67. At the time of BFI’s original petition, the closest

RCRA liquid hazardous waste treatment facility and the one used by BFI was the CID Recycle

and Disposal facility (CID), located at 138th and Bishop Ford Expressway in Calumet City, over

100 miles away. Pet. at 2-3, 12. The leachate volume hauled to CID in 2002, 2003, 2004, 2005,

and 2006 was, respectively, 468,300 gallons, 290,000 gallons, 221,100 gallons, 294,000 gallons,

and 335,650 gallons. Pet., Att. 1 at 7, Table 1. CID later notified BFI that CID no longer had

the capacity to accept the leachate. PFT at 8. BFI then began transporting to the next closest

facility, located in Vickery, Ohio, approximately 268 miles from Davis Junction Landfill. To do

so, BFI has incurred costs of $2,250 per 5,000-gallon tanker truck. Since the time of the hearing,

CID informed BFI that CID can once again accept the leachate, but BFI has no assurance as to

how long CID will continue to accept the waste. Br. at 6-7.

If the waste is delisted, BFI plans to haul the leachate to Interstate Pollution Control, Inc.

(IPC), which is a waste water treatment facility (WWTF) located some seven miles away, or

another similarly equipped local facility. Pet. at 3, 12. BFI estimates the maximum volume of

leachate would be less than 500,000 gallons per year.

Id

. at 2. The cost of transporting and

disposing of F039 hazardous waste leachate is approximately $0.338 per gallon, compared to

$0.045 per gallon for leachate designated as non-hazardous special waste.

Id

.

Both CID and IPC subject leachate to treatment processes. CID uses a basic aerobic

biological treatment process. Pet., Att. 1 at 7. IPC uses a series of chemicals for treatment,

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10

including aluminum sulfide, calcium chloride, ferric chloride, and a polymer for flocculation.

Id

.

IPC then discharges to a publicly owned treatment works (POTW), the Rock River Water

Reclamation Treatment Facility, which monitors its discharge for compliance with both federal

pretreatment and National Pollutant Discharge Elimination System (NPDES) permit

requirements. Pet. at 21, Att. 1 at 37; Br. at 3. Before 1997, the Phase I unit leachate was

transported to Louisiana for deep well injection. Pet., Att. 1 at 7.

The Phase I unit’s post-closure care period under the RCRA Part B permit is to end, at

the earliest, on December 5, 2014. The leachate collection and removal system must continue

operating throughout the post-closure care period until pumpable levels of leachate are no longer

present. Pet., Att. 1 at 6, App. H (RCRA permit). BFI anticipates the remaining RCRA post-

closure period to be seven years, although the period could be extended by IEPA if pumpable

levels of leachate exist after seven years. Pet. at 1. The volume of leachate has generally

declined since the new cap was installed in 1998-99.

Id

. at 3-4; Pet., Att. 1 at 11; Tr. at 16.

Sampling

Initial List of Constituents of Concern

For purposes of its delisting petition, BFI arrived at an “initial list” of constituents of

concern (CoCs) from those compounds that are part of the regular annual sampling of Phase I

unit leachate (35 Ill. Adm. Code 724.Appendix I “Groundwater Monitoring List”), coupled with

the parameters of a supplemental sampling and analysis plan (SAP). Pet., Att. 1 at 11.

Under the facility RCRA Part B permit, sampling and laboratory analysis of the leachate

has been conducted annually for over 230 constituents listed in 35 Ill. Adm. Code 724.Appendix

I (40 C.F.R. 264.Appendix IX). Pet., Att. 1 at 11, App. C. BFI provided nine years of data,

collected during the period from 1999-2007, with 1999 being the year during which the

upgraded final cover installation was completed.

Id

.; Tr. at 16.

BFI submitted a supplemental SAP to IEPA in 2004, which included (1) constituents

previously observed at concentrations exceeding F039 treatment standards; (2) toxicity

characteristic constituents (Table 1—Maximum Concentration of Contaminants for the Toxicity

Characteristic, 35 Ill. Adm. Code 721.124(b) (40 C.F.R. §261.24(b)); and (3) the characteristics

of ignitability, reactivity, or corrosivity. Pet., Att. 1 at 11-12. The supplemental SAP was

implemented over five sampling events during April, May, and June 2005.

Id

. at 12.

In all, BFI conducted 15 sampling events covering over 10,000 data points and

approximately 300 constituents. Pet., Att. 1, App. D; Tr. at 19.

Final List of Constituents of Concern

BFI’s first proposed “final list” of constituents to be monitored for compliance with

delisting levels consisted generally of all detected metals and organics from the toxicity

characteristics list (35 Ill. Adm. Code 721.124), together with all additional constituents that

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11

were detected at any time during the nine years of sampling for the “initial list” of constituents.

Pet., Att. 1 at 12. These 39 constituents of concern were:

Metals

Arsenic

Chromium

Lead

Tin

Barium

Cobalt

Mercury

Vanadium

Cadmium

Copper

Nickel

Zinc

Volatile Organic Compounds (VOCs)

1,1 -Dichloroethane

Carbon Disulfide

Methyl ethyl ketone

Toluene

1 ,2-Dichloroethane

Cis- 1 ,3-

Dichloropropylene

Methylene chloride

Trichloroethylene

1 ,4-Dioxane

Ethylbenzene

Methyl-iso-butyl

ketone

Vinyl chloride

Acetone

Isobutyl alcohol

Styrene

Xylenes (total)

Benzene

Methanol

Tetrachloroethylene

Semi-Volatile Compounds

2,4-Dimethylphenol

Naphthalene

p-Cresol

Diethyl phthalate

Phenol

Herbicides

2,4,5-TP (Silvex)

2,4-D

Pesticides

Endrin

Pet., Att. 1 at 21-22.

After Board staff questioning about constituents in BFI’s data having been detected but

not included in BFI’s initially proposed final list of 39 CoCs, BFI added the following

compounds to that list:

•

1,2,3,4,6,7,8,9-OCDD and 1,2,3,4,6,7,8-HpCDD3

•

1,4-Diochlorobenzene;

•

Heptachlor; and

•

Selenium.

PFT at 9-10.

Delisting Levels

Primarily through the use of DRAS, BFI developed a delisting level for each of the 43

final constituents of concern. Pet., Att. 1 at 31-36, App. D, Table III; PFT at 9-10, 16-18, 19-22,

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12

Att. 2-4; Br. at 22-24, Att. 7; Tr. at 38-39. The proposed delisting levels and the sources used by

BFI to derive the concentrations are identified in the table beginning at page 32 of this opinion.

Corporate Conversion and Name Change

Effective December 30, 2007, “BFI Waste Systems of North America, Inc.,” a Delaware

corporation registered to do business in Illinois, was converted into a Delaware limited liability

company and changed its name to “BFI Waste Systems of North America, LLC.” Corp. Notice

at 1, Att. A. BFI Waste Systems of North America, LLC was granted approval to transact

business in Illinois on January 15, 2008.

Id

.

DISCUSSION

Delisting Request

Through its adjusted standard petition for a RCRA waste delisting, BFI seeks permission

to allow leachate generated at its closed Davis Junction Landfill Phase I unit to be treated as non-

hazardous special waste under circumstances described by BFI as “very limited.” Br. at 1. As

proposed, the leachate would not be considered delisted unless disposed of in a waste water

treatment facility (WWTF) in Illinois with a pretreatment program approved by USEPA.

Accordingly, if the leachate is disposed of elsewhere, or if a release occurs from the tanker truck

before delivery to the WWTF, the delisting would not apply and the leachate would be subject to

RCRA Subtitle C hazardous waste regulation.

Id

. at 1-2, 4; Tr. at 20-23, 25, 28. Absent the

adjusted standard, the Phase I unit leachate is regulated as a “listed hazardous waste,” classified

by the waste code F039, hazard code “T” for “toxic waste,” under 35 Ill. Adm. Code 721.131

(hazardous waste from nonspecific sources). Pet. at 2.

The proposed duration of the adjusted standard is “limited . . . to the time during which a

RCRA Post-Closure Permit requires operation of a leachate collection system.” Pet. at 17. BFI

anticipates that this timeframe will be approximately seven years, but requests “no absolute time

limit be established in the Adjusted Standard because Illinois EPA may require that the leachate

collection system continue to operate for a longer period of time.”

Id

.

As proposed, the on-site handling and storage of the Phase I unit leachate would remain

subject to RCRA hazardous waste requirements and pollution control equipment. Pet. at 10.

The adjusted standard’s scope would be limited to leachate generated while the Phase I unit is

subject to a RCRA Post-Closure Permit, which prohibits disposal of any new waste, requires

maintenance of the existing landfill cap and liner, and requires operation of a leachate collection

system. Pet. at 16. The adjusted standard would also assure that the leachate would be hard-

piped from the collection system to the RCRA-permitted on-site storage tank prior to off-site

transportation. The proposed language for the delisting prohibits the leachate from being stored

or managed in a surface impoundment, conveyed by ditches, or otherwise managed before being

hauled for off-site disposal. BFI states that the adjusted standard therefore will not allow the

leachate to be managed in any way that “could result in contamination of the leachate and/or a

release of the leachate directly to the environment.”

Id

. at 17. The leachate would not be

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13

considered delisted until it is loaded into the truck. Br. at 19; Tr. at 28, 31;

see also

proposed

condition (i) below.

BFI seeks to delist the leachate so that BFI may dispose of the leachate as non-hazardous

special waste at a WWTF, saving BFI up to an estimated $146,500 annually for transport and

disposal. Pet. at 1, 3, 12. Specifically, BFI estimates the maximum volume of leachate would be

less than 500,000 gallons per year.

Id

. at 2. The cost of transporting and disposing of F039

hazardous waste leachate is approximately $0.338 per gallon, compared to $0.045 per gallon for

leachate designated as non-hazardous special waste.

Id

. at 12. Annual cost savings resulting

from the delisting would be approximately $29,300 for every 100,000 gallons generated or, at

the estimated maximum volume of 500,000 gallons per year, a savings of $146,500 annually in

disposal and transportation costs.

Id

.

The adjusted standard would be conditional upon the Phase I unit leachate being

transported only in Illinois and disposed of in Illinois as an Illinois special waste pursuant to 35

Ill. Adm. Code 809. As BFI explains, this “assures that the leachate will be tracked from the

landfill to disposal by way of a Special Waste manifest” and be subject to “Special Waste hauler

permitting,” as is the leachate generated at the Davis Junction Phase II and III units. Pet. at 10-

11, 19; Tr. at 21-22. The Board further notes that Part 809 imposes recordkeeping requirements

on special waste generators:

Every generator who delivers special waste to a special waste transporter, every

person who accepts special waste from a special waste transporter and every

special waste transporter shall retain their respective parts of the special waste

manifest as a record of all special waste transactions. These parts shall be

retained for three years and will be made available at reasonable times for

inspection and photocopying by [IEPA]. 35 Ill. Adm. Code 809.501(g).

In addition, the adjusted standard would require that compliant leachate test results and the

WWTF’s name be provided to IEPA at least 30 days before transporting the first load.

Along with enabling BFI to dispose of the Phase I unit leachate as a non-hazardous

special waste, the adjusted standard would allow BFI to transport the leachate over a shorter

distance. The WWTF, IPC (where the leachate from the non-hazardous Phase II and Phase III

units is disposed), is located less than 10 miles from the Davis Junction Landfill. The closest

liquid hazardous waste disposal facility, CID (where the Phase I unit leachate is currently

disposed), is located over 100 miles away. Br. at 1; Pet. at 3, 12-13. The current long distance

to transport the Phase I unit leachate is “energy inefficient and generates excess air pollution in

the form of diesel emissions, including carbon dioxide, nitrogen oxide, volatile organics,

particulate, Hazardous Air Pollutants, and soot.” Pet. at 21. BFI continues:

Based on simple mathematics, hauling the leachate over ten times further to CID

generates over 90% more emissions and uses 90% more fuel than hauling the

leachate to the IPC facility. It also results in an increased potential for highway

accidents resulting in releases to the environment.

Id

.

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14

Steinhour of Weaver Boos, BFI’s consultant, testified that the consultant’s analysis

showed no statistically significant difference between the leachate from the hazardous (Phase I)

and non-hazardous (Phases II and III) units at the landfill. Tr. at 18;

see also

Pet., App. D.

Maxwell of Weaver Boos confirmed at hearing that IPC has had no concerns with the discharge

from its treatment process after having accepted leachate from Phases II and III. Tr. at 82-83.

BFI’s consultants testified they have already shared Phase I unit leachate data with IPC

personnel, and IPC has indicated the leachate could be treated at its plant. Tr. at 25, 86.

Additionally, the WWTF is expected to provide “equal or better treatment than this

leachate is currently receiving as a listed hazardous waste.” Br. at 1, citing Tr. at 83. CID uses a

biological treatment system to achieve its NPDES discharge limits. IPC uses a chemical

treatment process and discharges to a POTW. Pet. at 21. Accordingly, wastewater from the

WWTF would be discharged not to the environment, but rather to a POTW, itself subject to

NPDES permit requirements. Br. at 3; Pet., Att. 1 at 37; Tr. at 91-92. At hearing, BFI’s

attorney, Sharkey of McGuire Woods LLC, emphasized that the Phase I unit leachate is “not

only going to be pretreated at a pretreatment plant at IPC, it will then go to POTW where it will

be treated again. So it’s going to get double treatment as opposed to those others [USEPA

delistings] that are land disposal.” Tr. at 65. Steinhour added that not only will BFI be assessing

the leachate, but so will the receiving facilities of IPC and the Rock River Reclamation District,

both of which are independent entities. Tr. at 84;

see also

Br. at 19.

BFI maintains that under these circumstances, the modeling it has performed and the

delisting levels its has proposed “should be considered very conservative.” Br. at 3-4. BFI

modeled the risk of a worst-case spill on route to the WWTF. Though no direct land application

of the leachate is allowed under the proposed adjusted standard, BFI evaluated USEPA’s DRAS

model assuming a worst-case scenario of direct land disposal into an unlined surface

impoundment. Pet., Att. 1 at 4. In addition, BFI used the highest level of the constituents

detected over its nine years of data collection, a 10

-6

cancer risk level, and a hazard index of 1.0.

Id

., citing PFT at 4-8, Tr. at 37-38, 69-78. The highest measured data points for two

constituents, vinyl chloride and 1,4-dioxane, exceeded the calculated DRAS limits. For vinyl

chloride, BFI proposes USEPA’s characteristic toxicity limit as the delisting level. For the 1,4-

dioxane, BFI proposes a delisting level based on a site-specific and constituent-specific risk

analysis, akin to a Tier 2 Tiered Approach to Corrective Action Objectives (TACO) assessment.

Br. at 4, citing Pet., Att. 1 at 32-36; PFT at 16-18; Tr. at 40-43, 119-123.

BFI considered alternatives to the requested relief, in addition to continued disposal at a

liquid hazardous waste treatment facility. Other “theoretically available” alternatives for

disposal include (1) constructing, operating, and permitting an on-site treatment facility or

underground injection well and (2) constructing a sewer system to convey the leachate to a

WWTF. Pet. at 13. These options, BFI asserts, are “potentially risky” and would necessitate

“substantial capital and operating expenditures.”

Id

. For example, underground injection wells,

which require the presence of suitable geologic formations, can adversely impact drinking water

resources. Building an on-site hazardous waste treatment unit would wastefully duplicate the

nearby WWTF’s treatment technologies, and all for a relatively small volume of leachate coming

from a closed landfill “with a limited remaining post-closure period.”

Id

. at 13-14. BFI

maintains that these expenses are especially unwarranted in light of the similarity between the

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15

Phase I leachate and Phase II and III leachate, the latter of which is disposed of at IPC without

pretreatment or other capital expenditures.

Id

. at 14. The Davis Junction Landfill’s rural

location rules out any economical construction of a sanitary sewer system. Tr. at 17

IEPA’s Recommendations and BFI’s Petition Amendments

IEPA initially recommended that the Board deny BFI’s delisting request. IEPA

expressed concern over the prospects for land disposal of BFI’s Phase I unit leachate resulting

from a release prior to delivery. Rec. at 2-3. IEPA wanted assurances that the delisting would

be conditioned upon the leachate being disposed of at a WWTF located in Illinois that has a

pretreatment program approved by USEPA.

Id

. at 3. IEPA also wanted the adjusted standard

language to require more sampling events during the first 12 months of the delisting than BFI’s

then-proposed quarterly leachate sampling alone.

Id

.

In response, BFI filed its first amendment to the petition, clarifying that the delisting

would only apply to leachate that is transported to and received by a permitted WWTF, located

in Illinois, with a USEPA-approved pretreatment program. 1st Am. Pet. at 2. BFI also proposed

IEPA’s suggested sampling language, including the additional requirement of taking a

representative sample from the first three truckloads of leachate hauled under the delisting.

Id

. at

3-4.

IEPA then filed an amended recommendation stating that BFI’s proposed revisions

addressed IEPA’s concerns, including the concern about “the release of the leachate while in

transport prior to delivery to a waste water treatment facility.” Am. Rec. at 2. IEPA therefore

stated that it “does not object to the adjusted standard requested by BFI.”

Id

.;

see also

Tr. at 87-

91.

BFI filed a post-hearing brief, together with a second amendment to its petition. BFI

proposes further amending the delisting language, this time proposing that the initial sampling be

performed before leachate transport rather than sampling from the first three truckloads of

leachate hauled under the delisting. Specifically, BFI proposes that at least thirty days before

transporting the first load of delisted leachate, BFI would submit to IEPA the test results of a

representative sample of the leachate demonstrating compliance with the adjusted standard

requirements. Br. at 26; 2nd Am. Pet. at 2. The sample would be obtained from the RCRA-

regulated leachate storage tank instead of from individual tanker trucks, as had been proposed.

Br. at 26.

IEPA in turn filed a response brief stating that the newly-proposed adjusted standard

language in BFI’s second amendment “addressed the Illinois EPA’s concerns with the requested

adjusted standard and the Illinois EPA does not object to the requested adjusted standard.” Resp.

Br. at 2.

With its reply brief, BFI filed a motion to amend (Mot. Amend) its adjusted standard

petition, attaching the third amendment. IEPA did not respond to the motion, which the Board

granted above. With this amendment, BFI addresses, among other things, the corporate

conversion and name change from “BFI Waste Systems of North America, Inc.” to “BFI Waste

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16

Systems of North America, LLC.” Mot. Amend at 3. Counsel for BFI represents that she

discussed this conversion and name change with counsel for IEPA, “who agreed that these

changes do not affect the Petition in this case.”

Id

. BFI explains:

As a matter of law, BFI Waste Systems of North America, LLC succeeds to all of

the rights and obligations of BFI Waste Systems of North America, Inc. It also

maintains the same FEIN number. All representations made in the Petition . . .

remain unchanged. Amendments to the Adjusted Standard language proposed

today are designed to reflect this change in the corporate form and name of BFI

and to clarify that the Adjusted Standard applies to the leachate generated at

Phase I Unit of the Davis Junction Landfill and the permitted post-closure

operator of the closed Phase I Unit at the Davis Junction Landfill, regardless of

this or any future change in corporate ownership, form or name.

Id

.

IEPA has filed no amended recommendation in response to the third amendment of BFI’s

petition.

Conditional Delisting

The type of relief sought by BFI is considered a “conditional delisting” under USEPA

guidance. Br. at 1, Att. 1. USEPA described the nature of a conditional delisting:

In [USEPA’s] view, a conditionally delisted waste would exit the hazardous

waste management system at the point it meets the established delisting levels,

and would remain outside of the hazardous waste management system so long as

the delisted waste generator complies with the conditions placed on the disposal

of the delisted waste. “National Policy for Hazardous Waste Delistings” at 2,

Memorandum from Elizabeth A. Cotsworth, Acting Director, Office of Solid

Waste, to Regional RCRA Senior Policy Advisors, RO 14282 (July 1, 1998)

http://www.epa.gov/region6/6pd/rcra_c/pd-o/dlistpol.pdf

.

USEPA has stated that it grants conditional exclusions “when the petitioned waste meets

the criteria for delisting, yet we believe the waste may exhibit future variability that may be of

concern.” “EPA RCRA Delisting Program--Guidance Manual for the Petitioner” at 7, USEPA

Region 6 (Mar. 23, 2000). Accordingly, USEPA imposes “post-exclusion testing requirements

that the petitioner must meet prior to waste disposal.”

Id

. USEPA has “generally not restricted

how a delisted waste could subsequently be managed, provided it was managed in accordance

with the applicable state’s nonhazardous waste management requirements.” “National Policy for

Hazardous Waste Delistings” at 2, Memorandum from Elizabeth A. Cotsworth, Acting Director,

Office of Solid Waste, to Regional RCRA Senior Policy Advisors, RO 14282 (July 1, 1998). A

conditional delisting “reduce[s] the uncertainty caused by the potential unrestricted use or

management to delisted waste.”

Id

.

BFI’s leachate would exit the hazardous waste management system under specified

circumstances and, in some instances, could re-enter the hazardous waste management system.

Specifically, before being loaded into the tanker truck, the leachate would remain subject to the

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17

RCRA Subtitle C hazardous waste program. During transport, the leachate would be regulated

by the Illinois special waste manifest program. Before discharge from the WWTF, the leachate

would be subject to the Clean Water Act pretreatment and NPDES discharge requirements for

treatment. If the leachate is not disposed of in a permitted and approved pretreatment WWTF, or

if a release occurs from the tanker truck prior to delivery to the WWTF, the delisting would not

apply and the leachate would be subject to RCRA Subtitle C hazardous waste regulation. Br. at

1-2.

As BFI explains its delisting request:

if the leachate were transported somewhere else, spilled along the way, or

otherwise disposed of, it would not be covered by the delisting and would be

considered a listed hazardous waste subject to all applicable requirements of the

Resource Conservation and Recovery Act (“RCRA”) program. Among other

things, this clarification assures that the RCRA program corrective action clean-

up requirements will be triggered in the unlikely event that a spill occurs during

the transport of the leachate to the wastewater treatment facility. 1st Am. Pet. at

3.

BFI characterizes its proposal as a “cradle to grave” approach in that the leachate would always

be “covered by a regulatory program” (

i.e.

, RCRA Subtitle C, Illinois special waste manifesting,

or Clean Water Act pretreatment and NPDES). Br. at 2.

Proposed Adjusted Standard Language

BFI’s proposed adjusted standard language reads as follows:

Leachate generated at the closed Phase I Unit at the BFI Waste Systems of North

America Davis Junction Landfill in Davis Junction, Ogle County, Illinois, RCRA

ID No. ILD980700751, shall not be deemed a hazardous waste pursuant to 35 Ill.

Adm. Code 721 under the following circumstances:

a.

The Phase I Unit is subject to an Illinois Environmental Protection

Agency RCRA Post–Closure Permit which prohibits the disposal of any

new solid or liquid waste in the Phase I Unit, requires maintenance of the

landfill cap and liner, and requires operation of a leachate collection

system;

b.

The leachate is hard-piped directly from the landfill to an on-site storage

tank which is regulated under the RCRA Post-Closure Permit and is not

stored or managed in a surface impoundment, conveyed by ditches or

otherwise managed prior to transportation for off-site disposal;

c.

The leachate does not exhibit any characteristic of hazardous waste as

defined in 35 Ill. Adm. Code 721.121, 721.122, 721.123 and 721.124 and

also does not exceed the delisting level concentrations in Table A below.

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18

Other than for the toxicity characteristics which are reflected in the

delisting level concentrations in Table A below, compliance with a

hazardous characteristic may be demonstrated based upon the operator’s

knowledge of the leachate characteristics.

d.

Prior to commencing initial transportation and disposal of the leachate

pursuant to this Adjusted Standard, and quarterly thereafter for the first 12

months following the effective date of this Adjusted Standard, the operator

shall test a representative sample of the leachate and submit test results

demonstrating compliance with the requirements of paragraph (c) above to

the Illinois Environmental Protection Agency. Quarterly sampling shall

continue until such time as the operator has demonstrated compliance

(including, if necessary, a compliance demonstrated by a verification test)

in four consecutive quarters. Thereafter, such testing shall continue on a

semi-annual basis. For any such initial, quarterly, or annual testing, if an

original sample fails to meet the requirements of paragraph (c), then a

verification sample will be collected within 7 days and Verification

Testing shall be performed for the constituent(s) which failed to meet the

requirements of paragraph (c). A verified failure to meet the requirements

in paragraph (c) will be deemed present if both the original and

verification sample fail to meet such requirements.

e.

If a failure to meet the requirements in paragraph (c) is verified pursuant

to the verification procedures in paragraph (d), the operator shall notify

the Illinois EPA and the leachate shall not be transported or disposed of

except as a hazardous waste until such time as it is demonstrated by the

Confirmatory Testing procedures below to meet the requirements of

paragraph (c). Prior to re-initiating transportation and disposal pursuant to

this Adjusted Standard, the operator must perform Confirmatory Testing,

including testing of a minimum of four representative samples taken over

not less than a 14 day period, each of which confirms that the leachate

meets the requirements of paragraph (c), and the operator shall submit

such results to the Illinois Environmental Protection Agency with a

notification it intends to re-initiate transportation and disposal pursuant to

the Adjusted Standard.

f.

The leachate is transported in compliance with the requirements

applicable to an Illinois Special Waste (35 Ill. Adm. Code Part 809) to and

received by a permitted waste water treatment facility located in Illinois

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

States Environmental Protection Agency.

g.

At least 30 days prior to transporting the first load of delisted leachate, the

operator shall provide the Illinois Environmental Protection Agency with

the results of a test of a representative sample of the leachate

demonstrating compliance with the requirements of paragraph (c) and a

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