12

wait until it received the official hearing transcript before ruling on the requests for additional

hearings. The Board also stated that it expected to rule on the requests at its September 4, 2008

meeting, and directed that any response from PDC or IEPA be received by the Board no later

than 10:00 a.m. on September 2, 2008.

On August 13, 2008, the Board received a letter from Illinois State Representative Bill

Mitchell of the 87th District. Representative Mitchell asked 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 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 did not appear to be necessary.

In a September 4, 2008 order, the Board declined to hold additional public hearings, but

extended the deadline for filing public comments from September 11, 2008 to September 25,

2008. Due to that extension, the Board pushed back the filing deadlines for the post-hearing

briefs of PDC and IEPA to October 9, 2008 and October 23, 2008, respectively.

Written Public Comments

The Board received 330 written public comments. These public comments are identified

as PC 1 through PC 327, as some comments were docketed, for example, as PC 80 and PC 80A.

The list of those filing written public comments is attached to this opinion and order as

Attachment B. The commenters include members of the general public, environmental groups,

government and elected officials, and industry representatives.

Among the 330 public comments, the Board received 185 postcards, each with the same

pre-printed comment along with handwritten names, addresses, and in some instances brief notes

in the postcard margins. PC 35, 39, 42-51, 53-57, 59-61, 63, 68, 72-75, 78, 80-81, 83-84, 89-98,

101-110, 113, 115-126, 128-129, 133-160, 162, 167, 169, 171-176, 179, 182-183, 198-208, 212-

215, 217-219, 223-225,227-237, 239-243, 245-248, 250, 253-259, 261, 263, 265-267, 269-271,

273, 276-277, 279, 281-283, 285, 287, 289-291, 294, 309-310, 320-321. One postcard also

attached a newspaper article. PC 256. These public comments are collectively cited as

“Postcard 1.” Two letters are substantially the same as Postcard 1. PC 85, 221.

The Board also received a second form of postcard public comment. Specifically, 91 of

these postcards were received, each with the same pre-printed comment along with handwritten

names, addresses, and on occasion brief notes in the postcard margins. PC 27-32, 34, 40-41, 48,

52, 58, 62, 64-67, 69-71, 76-77, 79, 82, 99-100, 111-112, 114, 127, 130-132, 161, 163-166, 168,

170, 177-178, 180-181, 184-197, 210-211, 226, 238, 244, 249, 251-252, 260, 262, 264, 268, 272,

274-275, 278, 280, 284, 286, 292-293, 295-296, 299, 303, 311, 316-319, 322. These public

comments, each of which identifies the commenter as a member of HOI Sierra Club, are

collectively cited to as “Postcard 2.”

---

13

Public comments 316 through 327 were not timely filed and therefore will not be

considered. The Board notes, however, that public comments 316 through 322 were either

Postcard 1 or Postcard 2.

Post-Hearing

On October 8, 2008, PDC filed an 84-page brief (Br.), accompanied by 12 supporting

exhibits. With PDC’s filing, PDC included a motion to file a brief in excess of the 50-page limit

in order to address the numerous public comments filed. The hearing officer granted the motion

on October 9, 2008. IEPA did not file a post-hearing brief. However, as a supplement to its

initial recommendation, IEPA did file an amended recommendation on October 27, 2008 to,

recommending that the Board grant PDC’s requested delisting (Am. Rec.). In accordance with

the Board’s June 5, 2008, the Board has rendered today’s decision expeditiously, consistent with

the Board’s resources.

PDC’S PROPOSED ADJUSTED STANDARD LANGUAGE

PDC proposes the following adjusted standard language:

The Illinois Pollution Control Board hereby grants to Peoria Disposal Company

(“PDC”) an adjusted standard from 35 Ill. Adm. Code 721 Subpart D subject to

the following conditions:

1.

This adjusted standard becomes effective on (effective date here).

2.

This adjusted standard is provided only for K061 wastes treated using

PDC’s new proprietary stabilization technology described in the RCRA

Delisting Adjusted Standard Petition for PDC EAF Dust Stabilized

Residue (“EAFDSR”) filed by PDC on April 25, 2008 (the “Petition”),

unless and until it is modified in accordance with condition 3(b). This

adjusted standard is provided for up to a total annual waste disposal

volume of EAFDSR of 95,000 cubic yards. PDC’s EAFDSR is non-

hazardous as defined in 35 Ill. Adm. Code 721. The EAFDSR must meet

the verification and testing requirements prescribed in paragraph 3 listed

below to ensure that hazardous constituents are not present in the

EAFDSR at levels of regulatory concern. The EAFDSR will no longer be

subject to regulation under 35 Ill. Adm. Code Parts 722-728 and the

permitting standards of 35 Ill. Adm. Code 703. The EAFDSR shall be

disposed of pursuant to the Board’s non-hazardous landfill regulations

found at 35 Ill. Adm. Code 810-815, and disposed of in a lined landfill

with leachate collection and all necessary permits issued by the Illinois

Environmental Protection Agency (the “IEPA”) to receive the non-

hazardous EAFDSR. The landfill used for disposal shall be located in the

State of Illinois.

3.

Verification and Testing.

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14

a.

Treatability Testing. PDC shall verify through bench-scale

treatability testing that each K061 waste stream (other than those

already represented in the full-scale, in-plant trials) received by

PDC for chemical stabilization can be treated to meet the delisting

levels of paragraph 4 prior to the operation of full-scale treatment

of that waste stream. PDC shall submit a report of the treatability

testing to the Agency within seven days of the completion of such

testing.

b.

Technology Modification Demonstration. With any significant

change in the chemicals used by PDC in its full-scale treatment

process, PDC shall first verify through bench-scale treatability

testing that each K061 waste stream received by PDC for chemical

stabilization can be treated to meet the delisting levels of

paragraph 4 using the new chemical treatment regimen prior to the

operation of full-scale treatment using the new chemical regimen.

Prior to adopting any significant change in treatment chemicals as

part of the full-scale treatment process, PDC shall evaluate each

new chemical or chemical treatment regimen for the presence of

potential constituents of concern (COC’s). The evaluation shall

include, but not be limited to the consideration of producer

knowledge, MSDS sheets, producer specification sheets, and/or

producer- or PDC-supplied analytical data, as necessary to identify

any potential COC’s reasonably expected to be present at

concentrations of concern in the EAF dust stabilized residue

resulting from a new chemical treatment regimen. The universe of

potential COC’s that must be considered is the same as that

considered for the Petition. To eliminate a constituent from further

evaluation, the concentration must be no greater than the screening

concentrations determined and modeled for the Petition as they

appear in Tables 3a, 3b, 3c, and 8 of the Technical Support

Document included with the Petition as Attachment 2 (the “TSD”).

If the concentration of a potential COC in the EAF dust stabilized

residue resulting from the proposed chemical treatment regimen is

determined to be greater than that analyte’s screening

concentration, or for any constituents detected but not present on

the previously referenced tables, PDC shall conduct a further

evaluation, which may include running the then-approved version

of the United States Environmental Protection Agency Delisting

Risk Assessment Software (“DRAS”) (or other appropriate model

or risk assessment method) with the inputs reflecting the EAFDSR

concentrations as treated with the proposed chemical. PDC may

proceed with the change in treatment chemical or chemical

treatment regimen as part of the full-scale treatment process only if

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15

the evaluation demonstrates that the treated EAF dust stabilized

residue does not exceed the target human health and environment

risk factors upon which the approved Petition is based (see Section

6.3.2 of the TSD).

PDC, at least 15 days before adopting any significant change in the

full-scale treatment process, shall submit a report of the technology

modification demonstration and bench-scale treatability testing to

the IEPA, addressed as specified in condition 5. The Illinois

Pollution Control Board recognizes that insofar as the submittal

contains non-disclosable information regarding a specific

proprietary chemical or chemical treatment regimen, PDC may

redact such information from its submittal to the IEPA.

For the purpose of this condition, significant change is defined as

the utilization of any new chemical or chemical treatment regimen

containing active ingredients different from those utilized in the

full-scale, in-plant trials represented in the Petition.

c.

Testing of Treatment Residues for Inorganic Parameters. PDC

shall collect representative grab samples of each treated mixer load

of the EAFDSR and composite the grab samples to produce a daily

composite sample. This sample shall be analyzed for TCLP

leachate concentrations for all the constituents listed in paragraph

4 (a) prior to disposal of the treated daily batch. If the initial

composite sample does not indicate compliance with the delisting

levels, the treated residues will either be: 1) treated further using

additional curing time as the chemical reagents complete their

reactions with the waste, followed by another round of verification

sampling and analysis, or 2) re-processed through the WSF for

additional treatment, followed by another round of verification

sampling and analysis, or 3) managed as a K061 hazardous waste

at a properly permitted RCRA Subtitle C

4

facility. All verification

analyses shall be conducted on a composite that effectively

represents the entire daily batch as did the initial sample, and shall

include analysis for all 14 constituents identified in condition 4. If

delisting levels are not achieved within the maximum storage time

allowed PDC by its RCRA Part B Permit, the entire daily batch

must undergo re-treatment or be managed as a hazardous waste as

required by 35 Ill. Adm. Code 728 and the WSF RCRA Part B

Permit.

PDC shall submit annually to the IEPA the data (and/or a subset or

summary thereof to which the IEPA agrees) collected pursuant to

4

42 U.S.C. §§ 6921

et seq

.

---

16

this condition. The data submittal shall be addressed as specified

in condition 5.

d.

All analyses shall be performed according to SW-846

methodologies incorporated by reference in 35 Ill. Adm. Code 720.

The analytical data shall be compiled and maintained on site for a

minimum of three years. These data must be furnished upon

request and made available for inspection by any employee or

representative of the State of Illinois.

4. Delisting Levels.

The concentration in TCLP leachate from the EAFDSR must not exceed

the values shown below, otherwise such wastes shall be managed and disposed in

accordance with 35 Ill. Adm. Code 703 and 722-728.

Constituent

TCLP Delisting Level (mg/l)

Antimony

0.206

Arsenic

0.0936

Barium

21.0

Beryllium

0.416

Cadmium

0.11

Chromium (Total)

0.6

Lead

0.75

Mercury

0.025

Nickel

11.0

Selenium

0.58

Silver

0.14

Thallium

0.088

Vanadium

3.02

Zinc

4.3

5.

Data Submittal. All data must be submitted to the Manager of the Permit

Section, Bureau of Land, Illinois Environmental Protection Agency, 1021

North Grand Avenue East, P.O. Box 19276, Springfield, Illinois 62794-

9276 within the time period specified. At the IEPA’s request, PDC must

submit any other analytical data obtained pursuant to paragraph C within

the time period specified by the IEPA. Failure to submit the required data

will be considered a failure to comply with the adjusted standard adopted

herein and subject PDC to an enforcement action initiated by the IEPA.

All data must be accompanied with the following certification statement:

Under civil and criminal penalty of law for the making or

submission of false or fraudulent statements or

representations (pursuant to the applicable provisions of the

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17

Illinois Environmental Protection Act), I certify that the

information contained in or accompanying this document is

true, accurate and complete.

In the event that any of this information is determined by

the Board in its sole discretion to be false, inaccurate or

incomplete, and upon conveyance of this fact to Peoria

Disposal Company, I recognize that this exclusion of

wastes will be void as if it never had effect to the extent

directed by the Board and that Peoria Disposal Company

will be liable for any actions taken in contravention of its

RCRA Part B Permit and CERCLA obligations premised

upon the Peoria Disposal Company’s reliance on the void

exclusion.

6.

PDC, at least 15 calendar days before transporting an initial load of

delisted EAFDSR to a given disposal facility, shall provide the IEPA with

a one-time, written notification identifying that disposal facility. The

notification submittal shall be addressed as specified in condition 5.

________________________________________________

(Name of certifying person)

________________________________________________

Title of certifying person)

Date____________________________________________

Br. at 78-82.

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18

IEPA’S RECOMMENDATION

IEPA recommends that the Board grant the requested delisting. Am. Rec. at 1. In its

original recommendation, filed on June 12, 2008, IEPA stated that it “has no objection” and that

PDC’s request would “likely meet the required level of justification with some additional

information.” Rec. at 1. IEPA raised two concerns related to the site-specific assumptions used

by PDC in DRAS modeling for dioxins and furans. First, while not taking issue with the use of

site-specific information, IEPA asked for more information to support PDC’s adjustment in the

fraction of fish intake, which PDC reduced from the generic input of 1.0 to a site-specific input

of 0.5 under the assumption that 50% of all freshwater fish consumption for an individual is

taken from Indian Creek. Rec. at 2. Second, IEPA pointed out a discrepancy in the figures

within a site-specific model assumptions table concerning the fish consumption rate.

Id

. at 2-3.

PDC filed a response to IEPA’s concerns on June 26, 2008, providing additional

information in support of its site-specific analysis and clarifying numerical discrepancies.

However, in response to Board staff questioning, PDC, as discussed below, ultimately eschewed

these site-specific modeling assumptions based on Indian Creek in favor of more conservative

generic model values applicable for disposal in any Subtitle D landfill in Illinois.

On October 27, 2008, IEPA filed an amended recommendation. IEPA notes that

“additional information provided by PDC in its response of June 26, 2008 and at hearing on

August 18, 2008, adequately addresses the issues raised in the Illinois EPA’s June 12, 2008

response.” Am. Rec. at 1. IEPA therefore “recommends the granting of the requested RCRA

delisting adjusted standard.”

Id

.

FACTS

The following facts are provided by way of background. Additional findings of fact are

set forth later in this opinion as those facts become relevant.

PDC

PDC is an environmental services company based in Peoria, Illinois. PDC transports,

treats, and disposes of hazardous and non-hazardous industrial and remediation wastes. TSD at

1-1. The PDC waste stabilization facility (WSF) and PDC No. 1 Landfill are permitted under

Subtitle C of RCRA and located adjacent to each other on a roughly 90-acre property in

unincorporated Peoria County.

Id

. PDC is classified as Standard Industrial Classification (SIC)

code 4953, for refuse systems, and North American Industry Classification System (NAICS)

code 562211, for hazardous waste treatment and disposal.

Id

.

Waste Stabilization Facility

PDC’s waste WSF is located entirely within a containment building at 4349 W.

Southport Road in Peoria, Peoria County. Pet. at 9; TSD at 3-3. The WSF was approved in

1989 to operate under the RCRA Part B permit issued by IEPA. Pet. at 1, 9. Since 1989, the

WSF has been in continuous operation.

Id

. at 1, 10. In 1996, PDC’s request to change the WSF

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19

from “a waste pile to a containment building unit” was approved.

Id

. A “mixer” in the WSF is a

unit (tank) under the Part B permit. TSD at 3-6.

The WSF containment building is a fully-enclosed, pre-engineered steel structure with a

floor area of approximately 11,000 square feet. TSD at 3-3. The building is founded on 5-foot

high reinforced poured concrete containment walls and has a 12-inch thick poured concrete floor

slab.

Id

. For receiving waste, the WSF is accessed at the north end by one of four overhead

doors. Just inside each of these doors are individual waste receiving bays, which are constructed

of reinforced concrete.

Id

. at 3-3, 3-4. A 100-mils thick, high-density polyethylene synthetic

liner, serving as secondary containment and as a component of the liquids collection system,

underlies the entire facility, including the concrete receiving apron and receiving bays.

Id

. at 3-4

The WSF is permitted to store and treat hazardous and non-hazardous wastes. Pet. at 1;

TSD at 3-3. Currently, the WSF’s principal treatment activity is chemical microencapsulation of

hazardous wastes using “reagents designed to reduce the leachability of inorganic hazardous

constituents.” Pet. at 1-2; TSD at 3-1. The largest volume of listed hazardous waste presently

being treated at the WSF is K061 electric arc furnace dust. This EAF dust is generated by steel

mills that produce steel using electric arc furnaces. Pet. at 2.

The EAF dust that PDC receives from the steel manufacturers is the residual from air

pollution control systems. TSD at 1-2. In manufacturing steel, electric arc furnaces are

commonly used to melt scrap metal. EAF dust consists of particulates captured from the furnace

off-gases in, for example, a baghouse. TSD at 2-1, Fig. 2, 3. EAF dust composition varies

depending upon the types of scrap and the types or quantities of flux and other additives used in

the melting, but it is principally composed of iron and iron oxides, flux (typically lime or

fluorspar), zinc, chromium and nickel oxides, and other metals associated with the scrap. TSD at

2-1, 2-2;

see also

TSD at 3-15 (“The variability in the EAF dust primarily results from variations

in the characteristics of the scrap steel and the grade of carbon steel that is produced.”).

PDC No. 1 Landfill

PDC currently disposes of WSF-treated K061 EAF dust (the “chemically stabilized

residues that remain hazardous”) in PDC’s on-site RCRA Subtitle C hazardous waste landfill

(PDC No. 1 Landfill).

5

Pet. at 2, 11; TSD at 1-4. PDC No. 1 Landfill, which has been PDC-

5

In an opinion issued on October 7, 2008, the Third District Appellate Court upheld the Board’s

decision to affirm the Peoria County Board’s denial of siting for PDC to expand PDC No. 1

Landfill. Peoria Disposal Company v. Illinois Pollution Control Board and County of Peoria

,

896 N.E.2d 460, 324 Ill. Dec. 674, 2008 Ill. App. LEXIS 999, *43 (3rd Dist., Oct. 7, 2008)

(Board docket PCB 06-184). PDC has since filed with the Illinois Supreme Court a petition for

leave to appeal the Third District Appellate Court’s decision. In another case still pending

before the Third District Appellate Court, PDC appealed the Board’s January 10, 2008 decision

affirming IEPA’s denial of PDC’s application to modify PDC No. 1 Landfill’s RCRA Part B

permit. Peoria Disposal Company v. Illinois Pollution Control Board and Illinois Environmental

Protection Agency, No. 3-08-0030 (3rd Dist.) (Board docket PCB 08-25). PDC’s permit

application had proposed an expansion of PDC No. 1 Landfill.

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20

owned throughout its operating life, first became a RCRA hazardous waste management facility

with the effective date of RCRA in November 1980. TSD at 3-4. PDC No. 1 Landfill was

issued a RCRA Part B permit on November 4, 1987. Pet. at 2, 9.

6

Area C of PDC No. 1 Landfill is currently active and contains all of the landfill’s

remaining disposal capacity. Pet. at 11. Specifically, Area C is a 42-acre area containing four

individual landfill cells identified as Trenches C-1 through C-4. Most of Trenches C-1 and C-2

are closed and in post-closure care. The remaining portions of Trenches C-1 and C-2, as well as

Trench C-3, are nearly filled to capacity and are currently used as a container storage area for

treatment residues while Land Disposal Restriction (LDR) verification analyses are pending.

Almost all remaining landfill capacity exists in Trench C-4, an 11.5 acre landfill area. TSD at 3-

5.

At its level of operation as of April 2008, PDC No. 1 Landfill “will reach capacity in

2009.” Pet. at 2, 11 (“Area C will reach capacity sometime in 2009”); TSD at 1-4, 3-5. For the

WSF, the next closest operating Subtitle C landfill is located approximately 220 miles away in

Roachdale, Indiana. Pet. at 3; TSD at 1-4.

PDC currently ships some treatment residues off-site for disposal as non-hazardous waste

at its affiliated Subtitle D landfill located in Tazewell County (Indian Creek Landfill No. 2):

“The non-hazardous residues are decharacterized waste (i.e., originally D004-D011 waste codes)

and delisted residues from PDC’s treatment of F006 waste.”

7

Pet. at 11; TSD at 1-1.

Proposed Operations

Because the EAFDSR results from a new chemical treatment technology, PDC has never

managed the EAFDSR in any land-based unit (

e.g.

, a landfill), except for the quantities

generated during the delisting demonstration trials. TSD at 2-2, 2-3, 3-15, 7-1. With the

exception of using new treatment reagents, the procedures for receiving, handling, and treating

K061 EAF dust would be largely the same as those used by PDC since 1989. TSD at 2-2.

All fixed assets necessary to receive waste, treat waste, and store treated waste before

disposal are in place at the WSF. Pet. at 12. With the new chemical treatment regimen, PDC

upgraded and modified its reagent storage and delivery system to accommodate the storage and

6

In a third-party appeal, the Board recently upheld IEPA’s November 27, 2007 renewal of the

RCRA Part B permit for PDC No. 1 Landfill.

See

Tom Edwards v. Peoria Disposal Co. & IEPA,

PCB 08-42 (June 19, 2008).

7

The Board granted an adjusted standard delisting to PDC for the stabilized residue generated

from the company’s treatment of F006 waste.

See

Petition of Peoria Disposal Co. for Adjusted

Standard from 35 Ill. Adm. Code 721 Subpart D, AS 91-3 (Feb. 4, 1993, Mar. 11, 1993)). TSD

at 1-1.

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21

blending of one additional chemical relative to the existing regimen. These changes were made

prior to the in-plant trials.

Id

. at 20-21.

As part of normal WSF operations, PDC anticipates receiving K061 EAF dust at an

approximate average rate of 74,000 tons per year (TPY), with a maximum of 95,000 TPY.

Based on those receipts, the estimated average and maximum amounts of EAFDSR that would

be generated by the treatment process are:

•

Average Monthly Volume Generated: 9,300 tons (approx. 6,200 cubic yards)

•

Average Yearly Volume Generated: 111,000 tons (approx. 74,000 cubic yards)

•

Maximum Monthly Volume Generated: 11,900 tons (approx. 7,950 cubic yards)

•

Maximum Yearly Volume Generated: 142,500 tons (approx. 95,000 cubic yards)

Pet. at 3; TSD at 2-2.

These figures include the ten current steel mill customers of PDC plus potential future business.

TSD at 2-2. EAF dust shipments may be stored and processed without commingling with other

K061 wastes, or may be commingled homogeneously before treatment as is allowed by the

facility RCRA Part B permit. TSD at 3-15

For PDC’s current K061 treatment, the RCRA Part B permit requires two grab samples

from each batch for LDR compliance verification, one from the first mixer load and one from the

last mixer load. Pet. at 20; Resp. to HOO, Att. 1. PDC’s proposed adjusted standard would

require a grab sample from each mixer load to form a daily composite sample. Pet. at 20.

Two process materials are used to treat the K061 EAF dust: water and proprietary

chemical treatment reagents. This “newly licensed technology”

8

was developed by Dr. Ajit

Chowdhury “expressly for PDC's delisting effort.” TSD at 3-16. PDC primarily uses water

directly from the local potable water supply utility, the Pleasant Valley Water District. The

precise amount of water added to each mixer load is part of PDC’s proprietary regimen. The

amount of water, however, would be only that amount necessary to “facilitate mixing and

eliminate the potential for fugitive dust emissions when offloaded at the active landfill face.”

Id

.

The EAF dust stabilization process would be performed in “batches.” TSD at 3-7. A

typical batch is one day of K061 receipts or 200-300 tons.

Id

. Under the RCRA Part B permit,

each K061 EAF dust wastestream must be pre-approved for acceptance before being shipped to

PDC.

Id

. K061 EAF dust would be trucked to the WSF by public roads and weighed and

inspected at the PDC gate control facility. Approved waste would be trucked to the WSF

8

On December 18, 2008, Terra Materials, LLC filed a December 17, 2008 letter from Terra

Materials, LLC to PDC. What purport to be United States patents are an attachment to the letter.

The Clerk of the Board entered the filing into this docket as PC 324. The letter refers to various

patents and patent applications. PDC states that “[n]o existing patent was utilized by PDC in

developing the Petition”; that Dr. Chowdhury has “retained ownership of the process he

designed for this delisting, and will license the process to PDC if the delisting is approved”; and

that “[w]hile Dr. Chowdhury has not yet patented any of the elements of the process, he is

considering applying for patent protections for same.” Br. at 13-14, 54.

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22

receiving doors and discharged into the appropriate receiving bay.

Id

. EAF dust would be

transferred (with a front-end loader) from the receiving bays to the hydraulic mixing unit (mixer)

located within the containment building. TSD at 3-7, 3-9.

Water and chemical reagents would be added to the mixer. TSD at 3-7. The mixer

would be covered and mixing would begin. TSD at 3-8. Following mixing, the mixer would be

inverted and the treatment residue would be discharged into a steel trough installed above the

concrete floor slab. The treated waste would be removed from the trough with a track-type

excavator and loaded into either roll-off containers or dump trucks, and then transferred to the

storage area for curing and storage pending receipt of the verification analytical test results for

the treated waste. TSD at 3-8, 3-12. EAFDSR that meets the delisting levels would be

transported off-site to a RCRA Subtitle D landfill located in Illinois. Treatment residue not

meeting the delisting levels through “treatment using additional cure time and/or re-treatment at

the WSF” would be shipped to a RCRA Subtitle C facility for further management as a

hazardous waste. TSD at 3-8.

Other wastes managed at the WSF would be segregated from the K061 EAF dust being

treated under this adjusted standard. The K061 EAF dust being treated to the delisting levels

would not be commingled with any other waste type or waste code. TSD at 3-3, 3-8. The

RCRA Part B permit requires a cleaning and decontamination procedure of the treatment

equipment between treated batches of different waste types. TSD at 3-8.

The reagent storage and delivery system includes a steel storage silo with a capacity of

approximately 150 tons, a steel split-bin (two separate compartments) silo with a capacity of

approximately 50 tons per compartment, and a dedicated, top-mounted baghouse dust collection

unit for each silo. TSD at 3-9. An electric blower would pneumatically convey and circulate

reagents between the split-bin silo and the larger storage silo to blend individual chemicals into a

uniform composite chemical. TSD at 3-10. The mixer is equipped with a reagent receiving bin

that controls reagent flow into the mixer and has a dedicated baghouse unit.

Id

. The make-up or

slurrying water system includes a two-inch “city” water service line and a 20,000-gallon storage

tank.

Id

.

The stationary stabilization mixer, which is permitted as a RCRA tank, is a hydraulic-

driven, dual rotating shaft paddle mixer. TSD at 3-10. The mixer is equipped with seventeen

steel paddles and arms on each shaft. Load cells are located beneath the mixer to weigh each

ingredient. The shafts are variable speed operating in a range of 0 to 43 revolutions per minute.

For approximately two to five minutes, the mixer homogenizes the waste, reagent, and water.

The mixer is emptied by being hydraulically elevated and inverted, depositing the EAFDSR into

a steel trough.

Id

. at 3-11. During each mixing cycle, approximately five tons of untreated K061

is treated. Each mixing cycle takes approximately seven to twelve minutes, including

transferring the waste, reagents, and water into the mixer, homogenizing the mix, and emptying

the mixer. TSD at 3-11.

In either 25-cubic yard steel roll-off boxes or 168-cubic yard gondola-type rail boxes, the

treatment residue would be “stored within the footprint of the PDC No. 1 Landfill or other

permitted storage unit.” TSD at 3-12. Unless temporarily uncovered to collect re-samples, the

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23

roll-off boxes would remain covered with a weather-proof tarpaulin until authorized for disposal.

The gondola-type containers are equipped with removable steel lids that are placed and removed

by a track-type excavator. Except when temporarily removed during periods of additional

filling, re-sampling, or removal for disposal, the lids would remain in place.

Id

.

Treatment residue not verified as meeting delisting levels following adequate curing

would either be transported back to the WSF for re-treatment or shipped to a RCRA Subtitle C

facility as a hazardous waste. Waste stored in gondola-type rail boxes would be removed from

the boxes and transferred into either a dump truck or roll-off box using an excavator. TSD at 3-

12.

EAFDSR verified as meeting the delisting levels would be removed from the gondola-

type boxes using a track-type excavator and loaded into tractor-dump trailer combinations. The

EAFDSR would then be transferred to the gate control area for inspection and weighing before

being shipped to the designated RCRA Subtitle D landfill in Illinois for disposal. TSD at 3-12,

3-13, 3-15. Potential Subtitle D landfills to which delisted treatment residue may be shipped

include the following PDC-affiliated landfills, though Indian Creek Landfill No. 2 “is the most

likely facility that will be used” to dispose of the EAFDSR:

•

Tazewell County Landfill, Inc.

d/b/a Indian Creek Landfill No. 2

24501 McMullen Road

Hopedale, IL 61747

•

Clinton Landfill, Inc.

Route 51 South, Box 216L

Clinton, IL 61727

•

Pike County Landfill, Inc.

32246 375th Street

Baylis, IL 62314

TSD at 2-3, 7-1.

9

Compliance Costs

9

According to PDC, two local entities with jurisdiction over Indian Creek Landfill No. 2, the

Tazewell County Board and the Hopedale Township Board, adopted resolutions on May 30,

2007, and August 12, 2008, respectively, approving delivery of delisted waste to Indian Creek

Landfill No. 2. Br. at 4, Exhs. B, C. PDC further represents that the operator of the Clinton

Landfill, PDC-affiliate Clinton Landfill, Inc., agreed to an amendment to its Host Community

Agreement with DeWitt County to provide for approval by the County Board prior to disposal of

EAFDSR at the Clinton Landfill. Br. at 4 n.1, Exh. E;

see also

Tr. at 38-41, PC 9;

but see

Tr. at

41-44, PC 222 (Ila Minson). This record is replete with citizen opposition to PDC disposing of

any delisted EAFDSR in particular landfills and in landfills generally.

See

,

e.g.

, PC 3, PC 10.

---

24

PDC compared the cost of compliance if the EAFDSR remained K061 hazardous waste

versus the cost of compliance if the delisting were granted. No new capital investments would

be required under the delisting and many variable operating costs would remain largely

unchanged (

e.g.

, labor, laboratory analysis, utilities). Pet. at 12-13. The cost of post-treatment

transportation and disposal of treatment residue, however, would differ:

Transportation to and Disposal at Nearest Subtitle C

Hazardous Waste Landfill

Expense Item

Cost Per Ton

Estimated Cost Per Year

Transportation for Disposal

$44.00

$4,884,000

Disposal

$97.76

$10,851,360

Total

$141.76

$15,735,360

Transportation to and Disposal at Subtitle D

Non-Hazardous Waste Landfill in Tazewell County

Expense Item

Cost Per Ton

Estimated Cost Per Year

Transportation for Disposal

$8.86

$983,460

Disposal

$20.00

$2,220,000

Total

$28.86

$3,203,460

Pet. at 12-13.

All of the above costs are based on averages of 22 tons per shipment (semi-truck and

aluminum dump trailer combination) and 111,000 TPY shipped. The estimated cost difference is

$112.90 per ton or $12,531,900 per year. Pet. at 13. Due primarily to the higher relative cost of

the new chemical treatment regimen, PDC estimates that the cost of meeting its proposed

delisting levels at $110 per ton of untreated waste, compared to the current cost of meeting the

LDRs, which is $90 per ton of untreated waste. Pet. at 21.

Testing New Treatment Technology

During 2007-08, PDC developed what it describes as a “new proprietary stabilization

technology”

10

for treating K061 EAF dust. Pet. at 2. In testimony, Dr. Chowdhury

11

generally

described the new stabilization process:

10

The Board uses PDC’s terminology (“new proprietary stabilization technology”) in this

opinion and order but makes no finding that the technology is “new” or “proprietary.”

See

footnote 8.

11

For 34 years, Dr. Chowdhury has been a chemical engineer and for the past 20 years, he has

worked in the field of hazardous waste stabilization. Tr. at 30, 32. He is an author or co-author

of fourteen U.S. patents and one Canadian patent. Tr. at 31. Approximately one-half of Dr.

Chowdhury’s patents relate to solid waste treatment, including hazardous waste stabilization.

Tr. at 31-32.

---

25

The new chemical treatment regimen PDC utilized for the trials incorporated

addition of reagents involving sulfur oxy-anion compounds of alkaline-earth

metals along with agents for pH control which included calcined and uncalcined

lime. As necessary, the pH control agents which may be used include various

phosphate and iron compounds. The additive mix ratio and dosage were

controlled to provide a robust chemistry such that the potential for leaching of

heavy metals of concern are minimized under various natural and induced

leaching scenarios. During this treatment, the heavy metals are stabilized through

a series of complex precipitation and adsorption-coprecipitation reactions in a pH

regime of very low solubility of the metals. The material after stabilization is

characterized by low potential for leaching of heavy metals as indicated by the

TCLP (U.S. EPA Toxicity Characteristic Leaching Procedure) which is TCLP,

analysis with using different extraction fluids like acidic, neutral and a pH 11.0

solution and also the corresponding MEP tests which is a multiple extraction

procedure of U.S. EPA. Tr. at 33-34.

PDC used this technology in full-scale production at the WSF to conduct nine in-plant

trials, including analysis of twelve demonstration samples. Pet. at 2, 26. PDC receives multiple

K061 waste streams for treatment at its WSF under PDC’s RCRA Part B permit. TSD at 2-2.

Below are PDC’s ten steel mill customers on whose K061 waste streams PDC performed full-

scale, in-plant tests after stabilization (

i.e.

, treatment) with PDC’s new technology:

Mill Name

Steel Mill Location

(City, State)

A. Finkl

Chicago, Illinois

Alton Steel

Alton, Illinois

Charter Steel

Saukville, Wisconsin

Gerdau Ameristeel

Wilton, Iowa

IPSCO Steel

Muscatine, Iowa

Kentucky Electric Steel

Ashland, Kentucky

Keystone Steel and Wire

Peoria, Illinois

Arcelor Mittal Steel

East Chicago, Indiana

Nucor Steel

Norfolk, Nebraska

Sterling Steel

Sterling, Illinois

Exh. 4; TSD at 1-3, 2-2.

PDC’s Sampling and Analysis Plan/Quality Assurance Project Plan (SAP/QAPP) for the

in-plant trials originally included eight rounds of demonstration sampling and analysis. TSD at

4-3. The SAP/QAPP called for testing representative samples for the following:

•

40 C.F.R. Part 264.Appendix IX parameters, less herbicides and pesticides;

•

Oil and grease, pH, total cyanide, total sulfide; and

•

The RCRA Toxicity Characteristic constituents at 35 Ill. Adm. Code 721.124.

TSD at 4-4.

---

26

The RCRA hazardous waste characteristics of ignitability, corrosivity, and reactivity were not

laboratory-analyzed.

Id

.

The sampling scheme for sample rounds 1 through 8 was developed to “mimic the

monthly and annual receipts from each mill tested in the demonstration.” TSD at 3-14. Some

initial sample results showed exceedences of the proposed delisting levels. TSD at 3-15. The

initial sampling program did not reflect “additional curing time and/or re-treatment,” which is

provided for in the RCRA Part B permit and proposed by PDC for the delisting. TSD at 4-2.

PDC therefore conducted an additional in-plant trial “to more fully demonstrate PDC’s

procedure when the initial sample does not meet the proposed delisting levels.”

Id

.

The additional in-plant trial was conducted between February 11, 2008 (in-plant

treatment), and February 27, 2008 (final analytical result reported by TriMatrix Laboratories,

Inc.) and included three additional sample rounds: round 9, round 10, and round 11. TSD at 4-

4. Samples in round 9 were analyzed for the proposed constituents of concern (CoCs),

i.e.

, 14

metals analyzed for totals and the Toxicity Characteristic Leaching Procedure (TCLP), the basis

of the previous sampling events. Samples also were collected after additional curing (round 10)

and eventual re-treatment (round 11) and were tested just for those constituents that exceeded

proposed delisting concentrations in round 9.

Id

.

More than 1,000 analytical results were obtained and validated. TSD at 6-1. Samples

were collected on the following dates:

•

December 7, 2007

•

December 10, 2007

•

December 11, 2007

•

December 12, 2007

•

December 13, 2007

•

December 17, 2007

•

December 18, 2007

•

December 19, 2007

•

February 11, 2008

•

February 14, 2008 (after additional curing)

•

February 21, 2008 (after re-treatment)

TSD at 5-1, 5-2.

For the first eight days of the demonstration, PDC treated an average of 71 tons of K061

EAF dust per day. TSD at 5-2. To ensure that the amount of waste processed from each mill

during the trials was “proportional to the quantity PDC normally processes from each mill on an

overall basis,” shipments of EAF dust from the individual source mills were segregated from all

other waste streams entering the WSF. PDC “selectively designated the K061 waste loads that

would be processed each day to maintain this proportional representation objective.”

Id

. In

round 8, PDC commingled the EAF dust from multiple mills before treatment so the volatile

organic compound (VOC) sample, a grab sample, would contain stabilized waste from multiple

mills.

Id

.

---

27

The loads chosen for processing during the trial were unloaded and processed

individually:

Once in the receiving bay, a front-end loader transferred approximately 3.5 tons

of the pre-selected EAF dust into the mixer. This is less than the 5 to 6 tons of

K061 EAF dust that is normally processed in each mixer load due to the physical

characteristics of the new chemical treatment regimen. Specifically, the new

chemical reagents became very stiff and somewhat hydrophobic (relative to

PDC’s typical treatment reagents) when water was added. To adapt to this, PDC

personnel quickly learned it was best to treat smaller than normal loads, and to

first blend the waste and all chemical reagents prior to adding water. Water was

then added and mixed with the pre-blended waste and chemical reagents. ***

Ultimately, all treated waste was thoroughly blended and properly representative

of the chosen “mix design.” TSD at 5-2.

The mixer was emptied after treatment and the treatment residue was transferred into a

25-cubic yard roll-off box. TSD at 5-2. Before the box was moved to a dedicated sampling rack

at the gate control load inspection area for sampling, two mixer loads were placed in each roll-

off box. During each sample round, on average, nine roll-off boxes of K061 EAF dust treatment

residues were generated and available for sampling. To allow the mixer loads to be separately

identified and sampled, PDC segregated the mixer loads that were placed in an individual roll-

off box. RMT collected at least two grab samples from each mixer load, sampling both loads

placed in each roll-off box. TSD at 5-3, 5-4. The grab samples were collected directly from

each roll-off box soon after the treatment residues were first placed in the roll-off box, typically

within one hour. TSD at 5-4.

The amount of waste treated in each mixer load was uniform and each mixer load was

sampled. TSD at 5-5. The number of mixer loads sampled is directly proportional to the

volumes of treated K061 EAF dust from each of the ten mills. The two grab samples per mixer

load were included in each sample round composite, but prior to final compositing during each

sampling event:

RMT reviewed the waste treatment volumes for each mill and added additional

(previously collected) grab samples as needed to ensure that the composite

sample was representative of the percentage of treatment residues from each mill.

TSD at 5-5, 5-6.

During the first eight sampling events, a few of the samples exhibited TCLP cadmium

and zinc concentrations above proposed delisting levels. The batches sampled in the first eight

rounds were not subject to additional curing time or re-treatment. TSD at 5-3. The additional

in-plant trial, rounds sampling 9 through 11, was conducted:

to demonstrate PDC’s proposed procedure to re-sample the waste batch when

necessary and, if necessary re-treat the waste batch, in the event the initial (or

subsequent) verification sample exceeds the proposed delisting levels. This

---

28

inplant treatment trial was set up to treat EAF dust from the four mills (mills 2, 4,

7, and 10) with the highest pre-treatment TCLP cadmium concentrations. TSD at

5-3;

see also

TSD at 6-2 (“Wastes from the four mills exhibiting the highest mean

concentrations of TCLP cadmium in untreated K061 EAF dust”).

The untreated EAF dust from the four mills was homogenized before treatment rather

than segregated. TSD at 5-3. At the scheduled trial start time, the ambient air temperature was

2°F. The trial was delayed for approximately three hours while a frozen water line was repaired.

Between the initial treatment (round 9) on February 11, 2008, and the re-sampling on the

morning of February 14, 2008 (round 10), daily temperatures ranged from a high of 26°F to a

low of 3°F. Low ambient air temperatures can retard chemical reaction. TSD at 5-4.

The round 9 analysis indicated a cadmium concentration (0.14 mg/L

12

) exceeding the

proposed delisting level (0.11 mg/L) and a mercury concentration (0.026 mg/L) exceeding the

proposed delisting level (0.025 mg/L). TSD at 6-2. After three days of additional curing time,

the batch was re-sampled for cadmium and mercury (round 10). TSD at 6-2, 6-3. The mercury

concentration dropped below the proposed delisting level but the cadmium concentration

remained 0.01 mg/L above its proposed delisting level. TSD at 6-3. Rather than provide

additional curing time, PDC conducted additional treatment on the batch. PDC transported the

roll-off box back to its WSF for additional treatment on February 21, 2008:

Prior to this, PDC conferred with the consultant who developed the treatment

technology to establish the appropriate reagent recipe for re-treatment that would

provide sufficient additional treatment without over-treatment . . . . The re-treated

treatment residues were again sampled in accordance with the SAP/QAPP. This

cadmium result of 0.019 mg/L . . . achieved the proposed delisting levels. TSD at

6-3.

Curtis, Project Manger with RMT, Inc., PDC’s technical consultant, testified about the

TCLP:

In addition to the compositional analyses, stabilized waste also requires, per the

U.S. EPA delisting guidance document, additional leaching procedures. One is

the toxicity characteristic leaching procedure or the TCLP. This is performed to

simulate the leaching potential in an improperly run, unlined municipal solid

waste landfill. What was required was not only running it as it is written in

SW846, but with three different extraction fluids. Now at the same time these are

separate analytical runs, which has an acidic, a neutral and an alkaline leach. Tr.

at 21-22.

Curtis also provided testimony on the Multiple Extraction Procedure (MEP):

This waste is also required to have another leaching potential procedure called a

multiple extraction procedure or the MEP. This is performed to simulate the

12

Milligrams per liter.

---

29

leaching potential over a 1,000-year period. And, again, we were using the three

different extraction fluids -- an acidic, a neutral, and an alkaline leach. Tr. at 22.

Curtis responded to questions at hearing about how the TCLP and MEP tests are performed:

Q How is the TCLP test itself performed?

A The TCLP test takes the material -- in this case it’s a solid material. It will

grind it up, and then tumble it in the extraction fluid for over 24 hours. Then the

extraction fluid is removed and analyzed for any constituents of concern to see

what has migrated from the waste.

Q And comparing that to the MEP test, what is added in the MEP test?

A The MEP is doing that in ten successive times and using the same material, but

it’s exposing it. For example, if we do it with the acidic, we do it -- tumble it for

24 hours, remove the extraction fluid, but then fresh new acidic at the same, 2.88,

is added to the waste. It’s tumbled again another 24 hours. So the material is the

most aggressive for all ten successive tumbles and extractions. Tr. at 23.

For the in-plant trials, all 14 proposed CoCs were analyzed during each of the first eight

demonstration sampling events using TCLP with three extraction fluids: acidic, neutral, and

alkaline. TSD at 6-2. The purpose of this leaching procedure is to “evaluate the efficacy of the

stabilization chemistry when exposed to potentially aggressive pH conditions in a landfill.”

Id

.

In the neutral and alkaline tests, analytical results for the CoCs show all concentrations below

the proposed delisting levels. In the acidic extractions, some CoCs exhibited concentrations

greater than the proposed delisting levels: cadmium during sample rounds 2, 3, 4, 5, and 9;

mercury during sample round 9; and zinc during rounds 2, 4, 5, and 8.

Id

. On February 5, 2008,

in communications with RMT, IEPA agreed that the data from the additional in-plant trial “could

replace previous data for cadmium and zinc exceeding the LDR treatment levels in the risk

analyses since the earlier sample rounds did not take into account the established procedures

under PDC’s Part B Permit to provide additional curing and/or re-treat the treatment residues.”

TSD at 4-2, App. C.

PDC also analyzed the CoCs using the MEP (SW-846 Method 1320), substituting TCLP

(SW-846 Method 1311) for the EP Tox (SW-846 Method 1310). The MEP, a sequence of ten

TCLP extractions, is, according to the Method language:

designed to simulate the leaching that a waste will undergo from repetitive

precipitation of acid rain on an improperly designed sanitary landfill. The

repetitive extractions reveal the highest concentration of each constituent that is

likely to leach in a natural environment. TSD 6-3, 6-4.

The MEP analyses showed “[a]ll COC concentrations were well below their risk-based levels

throughout all ten extraction steps.” TSD at 6-4.

---

30

WSF Air Pollution and Wastewater Control

The RCRA Part B permit requires that the WSF be fully enclosed and maintained under

negative pressure to prevent fugitive air emissions. Pet. at 10. The WSF has two air pollution

control devices: a 60,000 cubic feet per minute (cfm) baghouse dust collector; and a 30,000 cfm

cartridge dust collector.

Id

. The dust collection system is designed to maintain negative

pressure throughout the WSF and to collect and filter dusts generated by handling waste

materials and conveying reagents. TSD at 3-4. The primary collector, the 60,000 cfm baghouse

unit, is equipped with draft hoods located above the mixer, mixer outloading trough, and

receiving bay No. 4, and a suction pipe under the mixer lid for reagent dust control.

Id

. The

baghouse has a diverter plate, allowing targeted apportioning of its total air flow in any

percentage to the mixer or receiving bay No. 4. The secondary dust collection device, the 30,000

cfm cartridge, is dedicated to the receiving bay No. 4 enclosure, providing localized exhaust for

discharging dusty loads into the WSF.

Id

.

The WSF operates as an area air emissions source under an IEPA lifetime permit, which

limits emissions from the WSF to a maximum of 33.8 TPY of particulate matter and 3.9 TPY of

volatile organic materials. Pet. at 10. Calculated actual WSF emissions reported to the IEPA for

calendar year 2006 were 7.70 tons of particulate matter and 0.9 tons of volatile organic materials.

Id

. at 10-11.

13

The RCRA Part B permit prohibits wastewater discharges from the WSF. Pet. at 11.

Primary containment for the WSF is provided by the twelve-inch thick concrete floor slab.

Secondary containment is provided by the 100-mils thick high-density polyethylene (HDPE)

liner.

Id

. Rainwater and wash water from the curbed and HDPE-lined concrete receiving apron

is directed to a master sump within the WSF building by the contour of the containment slab and

by pipes.

Id

. Wash water generated within the building is likewise directed to the master sump.

Water collected in the master sump is used as a slurrying agent in the chemical stabilization

process. This water would not be used, however, in the waste treatment that would be performed

under the delisting.

Id

.

DISCUSSION

For the reasons articulated below, the Board finds that the residue generated from PDC’s

new stabilization process of treating K061 EAF dust is not, upon meeting the Board’s delisting

levels, a RCRA hazardous waste. The Board accordingly grants PDC a delisting adjusted

standard, subject to conditions. For qualifying EAFDSR generated by PDC at the Peoria facility,

this grant effects relief from the “derived-from” rule and K061 listing status.

13

PDC maintains that the proposed delisting “does not include changes that will increase air

emissions from the WSF,” adding that “[e]ven at the maximum petitioned volume of EAFDSR,

emissions from the WSF would remain well below the limits in the facility’s air emissions

permit.” Pet. at 19-20.

---

31

This portion of the opinion is divided into three main parts, each with Board findings of

fact and conclusions of law: first (pp. 31-58), the Board discusses the technical RCRA

regulatory requirements for establishing that a delisting is warranted and why the Board finds

that PDC has made the necessary demonstration; second (pp. 58-79), the Board discusses the

conditions being imposed on this delisting; and third (pp. 79-87), the Board discusses the record

information concerning Section 27(a) of the Act (415 ILCS 5/27(a) (2006)).

The first part of this discussion, on the technical regulatory delisting requirements,

consists of the following sections: the burden of proof (pp. 31-32); the use of DRAS (pp. 32-33);

PDC’s delisting request generally (pp. 33-34); PDC’s consideration of site-specific factors (pp.

34-35); PDC’s proposed constituents of concern and delisting levels (pp. 35-47); issues raised in

public comment concerning the adequacy of PDC’s demonstration (pp. 48-55); and the Board’s

conclusion on whether PDC has satisfied the technical RCRA regulatory delisting requirements

(pp. 55-58). The second part of this discussion, on the adjusted standard conditions, is broken

down into the following sections: specified stabilization technology (p. 58); additional K061

waste streams (pp. 58-63); curing and re-treatment (pp. 63-65); initial and subsequent

verification testing (pp. 65-68); disposal of delisted EAFDSR (pp. 68-69); changes in treatment

chemicals or process (pp. 69-75); the delisting’s specificity to PDC’s Peoria facility (p. 75); the

delisting’s duration and volume cap (pp. 75-76); the handling of EAFDSR as hazardous waste

(p. 76); submittals and recordkeeping (pp. 76-77); and “reopener” language (pp. 77-79).

Technical RCRA Regulatory Requirements for Delisting Demonstration

Burden of Proof

As noted previously, because it is generated from treating the listed hazardous waste

K061, EAFDSR remains classified as K061 listed hazardous waste by operation of the “derived-

from rule.”

See

35 Ill. Adm. Code 721.103(d)(2), (e)(1). Accordingly, absent a delisting,

disposal of the EAFDSR must be in a RCRA Subtitle C hazardous waste landfill.

To be eligible for a delisting exclusion, a petitioner must demonstrate that the listed

waste:

1.

Does not meet the criteria for which it was listed; and

2.

Does not exhibit any of the characteristics of hazardous waste. “EPA RCRA

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

(Mar. 23, 2000);

see also

35 Ill. Adm. Code 35 Ill. Adm. Code 720.122(a)(1), (b),

(d)(3).

“In addition, a listed waste must not exhibit any other factors (including additional constituents)

that could cause the waste to be a hazardous waste, unless . . . such factors do not warrant

characterizing the waste as hazardous.” “EPA RCRA Delisting Program--Guidance Manual for

the Petitioner” at 6 USEPA Region 6 (Mar. 23, 2000);

see also

35 Ill. Adm. Code 35 Ill. Adm.

Code 720.122(a)(2), (d)(2).

---

32

Where the waste at issue is “derived from” a listed hazardous waste, the petitioner’s

demonstration must be made with respect to the “waste mixture as a whole.” 35 Ill. Adm. Code

720.122(b). Accordingly, “analyses must be conducted for not only those constituents for which

the listed waste contained in the mixture was listed as hazardous, but also for factors (including

additional constituents) that could cause the waste mixture to be a hazardous waste.”

Id

.

For waste that is listed based on toxicity, the petitioner must demonstrate that the waste

either (1) does not contain the constituents that caused USEPA to list the waste or, (2) although

containing one or more of the constituents that caused its listing, the waste is not 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, considering the

factors used to list the waste as hazardous. 35 Ill. Adm. Code 720.122(d)(1), 721.111(a)(3). The

factors are codified at 35 Ill. Adm. Code 721.111(a)(3)(A) through (a)(3)(K).

Use of DRAS

DRAS was developed by USEPA to compute the risks and hazards associated with a

specific waste stream for which a delisting petition has been submitted. DRAS assesses the

toxicity of a petitioned waste by calculating (1) screening exit values (delisting levels) and (2)

cumulative carcinogenic risks and noncarcinogenic hazard indices. “User’s Guide for the U.S.

EPA Region 6 Delisting Risk Assessment Software (DRAS)” at 1, USEPA Region 6, EPA906-

D-98-001 (Aug. 31, 2000). As noted above, the Board has found that using the DRAS program

may be appropriate in evaluating delisting petitions.

See

BP Products, AS 07-1, slip op. at 8. As

USEPA Region 5 points out, however, the use of DRAS is not a requirement: “[T]he State of

Illinois has been authorized to conduct delistings for wastes disposed of within Illinois and is

free to evaluate the waste and the criterion in 40 C.F.R. 261.11(a)(3) [35 Ill. Adm. Code

721.111(a)(3)] using DRAS or any other appropriate assessment approach.” BFI Waste

Systems, AS 08-5, slip op. at 26, quoting letter of July 16, 2008, to Board staff from Dale Meyer,

Chief, RCRA Programs Section, USEPA Region 5.

Modeling risk and hazard using a “reasonable worst-case management scenario” is

consistent with USEPA policy:

In considering whether to exclude a particular solid waste from the list of

hazardous wastes contained in 40 CFR 261.31 and 261.32, [USEPA] has

historically considered disposal in an unlined landfill or surface impoundment to

be representative of the reasonable worst-case management scenarios for such

waste. [USEPA] believes it is appropriate to consider the worst-case management

scenario because it is extremely difficult to project all potential management

scenarios that can occur once the waste is delisted. Thus, [USEPA] generally has

only modeled the risks related to these two disposal practices. “National Policy

for Hazardous Waste Delistings” at 1-2, Memorandum from Elizabeth A.

Cotsworth, Acting Director, Office of Solid Waste, to Regional RCRA Senior

Policy Advisors, RO 14282 (July 1, 1998).

---

33

Among the factors the Board is to consider are the “plausible types of improper

management to which the waste could be subjected.” 35 Ill. Adm. Code 721.111(a)(3)(G). As

USEPA explained:

In our technical evaluation, we often use appropriate fate and transport models

that rely on waste-specific information (e.g., waste volume, constituent

concentration data) to predict the potential environmental impact of the petitioned

waste. In selecting appropriate models, we choose a reasonable worst-case

management scenario and consider plausible exposure routes for the hazardous

constituents found to be present. “EPA RCRA Delisting Program--Guidance

Manual for the Petitioner” at 12-13, USEPA Region 6 (Mar. 23, 2000).

Here, PDC used DRAS to model a reasonable worst-case management scenario of

disposal in an unlined landfill. It must be emphasized, however, that PDC’s proposed conditions

of delisting would not permit disposal in an unlined landfill.

PDC’s Delisting Request Generally

PDC petitioned the Board to delist the “stabilized residue generated by PDC from the

treatment of K061 electric arc furnace [EAF] dust at PDC’s waste stabilization facility [WSF] in

Peoria County.” Pet. at 1. Under PDC’s proposal, “the EAFDSR will be excluded from the list

of hazardous wastes contained in Subpart D of 35 Ill. Adm. Code 721,” allowing PDC to

“transport and dispose of the EAFDSR at a Subtitle D landfill permitted by the IEPA.” Pet. at 3.

According to PDC, the DRAS modeling results and risk analysis presented demonstrate

that the constituents of concern “detected in the residues treated during the full-scale in-plant

trials will not pose a risk to human health or the environment.” Pet. at 20. PDC maintains that

its:

improved treatment and verification process . . . will demonstrably reduce the

leachability of the hazardous constituents to such a degree that, when properly

disposed in a RCRA Subtitle D landfill, the EAFDSR will not pose a threat to

human health or the environment. TSD at 1-4.

PDC asserts that the testing performed as part of the full-scale stabilization process trials

demonstrates that the company’s new treatment technology renders extractable metals below

their LDRs and proposed delisting levels. Pet. at 4.

Site-Specific Factors

USEPA has acknowledged:

that for a relatively small number of petitioned wastes that are not (or will not be)

managed under a scenario [USEPA’s] generic delisting models can assess,

Regions may have to consider site-specific circumstances or consider adding

specific conditions, on a case-by-case basis. “National Policy for Hazardous

---

34

Waste Delistings” at 3, Memorandum from Elizabeth A. Cotsworth, Acting

Director, Office of Solid Waste, to Regional RCRA Senior Policy Advisors, RO

14282 (July 1, 1998).

PDC originally premised the dioxin modeling on disposal in the Indian Creek Landfill

No. 2. In doing so, RMT modified the generic input assumptions in the spreadsheet calculation

model provided by USEPA for the dioxin fish tissue ingestion pathway. TSD, App. H. The

generic inputs that were modified by RMT included waste volume, period of exposure, rainfall

erosion potential, support practice factor, distance to stream, and fraction of fish intake from this

source. Of these, at least some appear to be specific to Indian Creek:

•

“Period of Waste Exposure *** The disposal area is covered on a daily basis”

•

“Rainfall Erosion Potential *** Modified to reflect area-specific value”

•

“Support Practice Factor *** Surface is contour terraced”

•

“Distance to Stream *** Value modified to reflect site-specific conditions – 1,100 ft to

Indian Creek”

•

“Fraction of fish intake from this source *** Assumes 50% of all freshwater fish

consumption for an individual is taken from Indian Creek” TSD, App. H.

In the dioxin/furan summary, RMT also concludes that the “modeled fish tissue dioxin TEQ

[toxicity equivalency quotient] concentration for fish in Indian Creek is 0.87 ng/kg.” TSD, App.

H.

PDC originally stated that it planned to dispose of the EAFDSR in any of three landfills.

PDC’s proposed adjusted standard language, however, limits disposal not to those three landfills,

but instead requires disposal pursuant to the Board’s non-hazardous solid waste landfill

regulations at a landfill located in Illinois. RMT’s dioxin spreadsheet calculation model used

site-specific information only for Indian Creek, not Pike County or Clinton Landfill or any other

possible Illinois landfills.

USEPA has discussed the use of site-specific information in assessing risk:

To reduce the uncertainty caused by the potential unrestricted use or management

to delisted waste, it is important that new delistings apply only to wastes managed

in the type of unit (e.g., “a landfill”) modeled in the delisting risk assessment.

* * *

[US]EPA’s policy of not considering site-specific factors when applying the fate

and transport models remains unchanged. Therefore, at this time, Regions should

not conditionally delist a waste based on consideration of protective site-specific

hydrogeologic conditions (e.g., underlying clay) or specific landfill designs (e.g.,

liners, or covers). We would not be comfortable at this time delisting a waste

based on consideration of site-specific hydrogeologic conditions and specific

landfill designs that would not be delisted based on a less site-specific analysis.

“National Policy for Hazardous Waste Delistings” at 2-3, Memorandum from

Elizabeth A. Cotsworth, Acting Director, Office of Solid Waste, to Regional

RCRA Senior Policy Advisors, RO 14282 (July 1, 1998).

---

35

A July 15, 2008 hearing officer order posed this question from Board staff to PDC:

PDC premises its dioxin modeling for the fish ingestion pathway on disposal in

the Indian Creek Landfill. The proposed adjusted standard language, however,

does not limit disposal of EAFDSR to that landfill. Please consider re-running

the model using the default generic values for a less site-specific analysis. If PDC

wishes to use site-specific information in its modeling, rather than the default

generic values, please consider either providing site-specific modeling for all the

potential Illinois landfills at which the EAFDSR might be disposed, or limiting

the proposed adjusted standard language to only those disposal facilities for

which site-specific modeling was performed. HOO, Att. A, Question 16.

On August 7, 2008, PDC responded by stating that RMT had revised the risk modeling for

dioxin using “input data determined to be applicable for any permitted Subtitle D landfill in

Illinois.” Resp. to HOO Exh. A at 13.

Proposed CoCs and Delisting Levels

PDC’s proposed constituents of concern (CoCs) for the EAFDSR are 14 metals:

antimony, arsenic, barium, cadmium, chromium, lead, mercury, nickel, selenium, silver,

thallium, vanadium, and zinc. TSD at 6-4. The proposed delisting levels for all the constituents

of concern were established as the lower (

i.e.

, more stringent) of the following:

•

Toxicity characteristic level, as specified at 35 Ill. Adm. Code 721.124;

•

LDR Universal Treatment Standards (UTS) for K061 EAF dust, as specified at 35 Ill.

Adm. Code 728.Subpart D; or

•

Risk-based concentration, as established using the DRAS v.2 model, “and/or other values

established in consultation with personnel from USEPA-5.” TSD at 4-3, 6-4, 6-5

The DRAS analysis was completed using a landfill management unit with the following

settings:

•

Annual waste acceptance rate of 95,000 cubic yards of delisted EAFDSR;

•

A 20-year lifetime (“a default and recommended value for the DRAS model”); and

•

Multiple-year batch. TSD at 6-5, App. H.

The delisting levels are based on these risk targets “set by USEPA-5 and confirmed by

IEPA”:

•

Individual cancer risk of 1 x 10

-4

for arsenic and 1 x 10

-6

for all other constituents,

•

An aggregate carcinogenic risk of 1 x 10

-5

(not including contribution from

arsenic); and

•

A hazard quotient of 1.0 for non-carcinogenic compounds. TSD at 6-5, App. H.

---

36

As discussed above, DRAS employs modeling to:

compute the risks and hazards associated with a specific waste stream for which a

delisting petition has been submitted. The Region 6 DRAS will assess the

toxicity of a petitioned waste by calculating: (1) chemical and waste volume-

specific screening exit values, and (2) cumulative carcinogenic risks and hazard

indices (for non-carcinogens). “User’s Guide for the U.S. EPA Region 6

Delisting Risk Assessment Software (DRAS),” EPA906-D-98-001 at 1 (Aug. 31,

2000).

CoCs - Initial Evaluation.

Generally, the delisting CoCs to be addressed by a petitioner

are those listed in 35 Ill. Adm. Code 721.Appendix H (“Hazardous Constituents”) (40 C.F.R.

261.Appendix VIII), as well as acetone, ethylbenzene, isophorone, 4-methyl-2-pentanone,

styrene, and xylenes (total). “EPA RCRA Delisting Program--Guidance Manual for the

Petitioner” at 26, 30-31, USEPA Region 6 (Mar. 23, 2000). A petitioner “should demonstrate

that these delisting constituents of concern are not present in [the] waste at hazardous levels

based on analytical data, mass balance demonstrations, or other appropriate information.”

Id

. at

26. The petitioner should provide information regarding the hazardous constituents used as the

criteria for listing the petitioned waste and all of the hazardous waste characteristics.

Id

.

USEPA also generally requests the following analyses: total oil and grease, total cyanide, total

sulfide, and total constituent levels of all inorganic and organic constituents of concern.

Id

.

USEPA Region 6, the drafter of the Guidance Manual, identifies “the minimum

constituent list for initial analysis” as the list at 40 C.F.R. 264.Appendix IX (35 Ill. Adm. Code

724.Appendix I “Groundwater Monitoring List”), adding that this list should be augmented to

include any other constituents for which the waste was listed and any other hazardous

constituents known to have been managed at the site. “EPA RCRA Delisting Program--

Guidance Manual for the Petitioner,” App. H, Region 6, Att. 2 at 1, USEPA Region 6 (Mar. 23,

2000).

PDC provided several samples that were analyzed to address the 40 C.F.R. 264.Appendix

IX constituents (minus pesticide and herbicides), plus acetone, ethylbenzene, isophorone, 4-

methyl-2-pentanone, styrene, and xylenes (total), total oil and grease, total cyanide, and total

sulfide.

The USEPA Guidance Manual calls for at least four samples to be collected over a period

of time sufficient to represent the uniformity of the petitioned waste, with “[o]ne sample with

Total constituent analyses for the entire Part 264 Appendix IX constituent list.” “EPA RCRA

Delisting Program--Guidance Manual for the Petitioner” at 28, 38, USEPA Region 6 (Mar. 23,

2000). PDC did not provide one sample with total constituent analyses for the entire Part 264

Appendix IX constituent list. PDC chose to exclude pesticides and herbicides from the Part 264

Appendix IX list. PDC explains:

Since none of this EAF dust, nor any of the treatment chemicals, are managed on

the ground where chlorinated pesticides and herbicides can be introduced, both

IEPA and the USEPA-5 representatives agreed that these parameters are not

---

37

present. Therefore, no chlorinated pesticides or herbicides were designated as

COCs. TSD at 4-6.

The Board notes that in USEPA’s CSI and Heritage delistings, pesticides and herbicides were

also not included in the initial list of constituents of concern. 60 Fed. Reg. 31107, 31108 (June

13, 1995); 65 Fed. Reg. 75897, 75899 (Dec. 5, 2000).

There is another constituent from 40 C.F.R. 264.Appendix IX that is neither a pesticide

nor a herbicide and for which PDC did not provide analytical results. TSD, App. L. That

constituent is hexachlorophene. When asked by Board staff about sampling and analysis for

hexachlorophene, PDC pointed to the narrative finding for hexachlorophene in the laboratory’s

Statement of Data Qualification. Resp. to HOO, Exh. A at 5;

see

TSD, App. N at 00013. PDC

explains that this analyte is “an unstable compound and is difficult to accurately analyze due to

extraction inefficiency.” Resp. to HOO, Exh. A at 5. For this situation, PDC’s laboratory,

TriMatrix Laboratories, has a policy to perform a gas chromatography-mass spectrometry

(GC/MS) mass search and report its findings as a narrative. TriMatrix reported that

hexachlorophene was not detected in any sample analyzed. Based on its research, TriMatrix

found that many laboratories do not include hexachlorophene in the SW-846 Method 8270C

Appendix IX list of analytes because of the recovery issues

. Id.

CoCs - Waste Specific Evaluation.

After examining the constituents in 40 C.F.R.

264.Appendix IX plus the other recommended constituents (acetone, ethylbenzene, isophorone,

4-methyl-2-pentanone, styrene, xylenes (total), total oil and grease, total cyanide, and total

sulfide), USEPA advises the petitioner to examine other possible constituents specific to the

petitioned waste:

In subsequent steps, you should complete your list of constituent[s] of concern by

adding all other hazardous constituents which may be present in your petitioned

waste based on: (l) the special analytical methodologies discussed below, and (2)

the results of an engineering analysis of all process and materials contributing to

your waste.” “EPA RCRA Delisting Program--Guidance Manual for the

Petitioner” at 26, USEPA Region 6 (Mar. 23, 2000).

For example, if the petitioned waste is “generated from the chemical stabilization of a

listed waste,” USEPA calls for quantifying leachable metal concentrations by using the Multiple

Extraction Procedure (MEP) and TCLP analyses. USEPA states that the MEP test results are

needed for “stabilized wastes to assess the long term stability of the waste.” “EPA RCRA

Delisting Program--Guidance Manual for the Petitioner” at 30, USEPA Region 6 (Mar. 23,

2000). For the engineering analysis, USEPA instructs the petitioner to:

consider all available information on contributing processes and raw materials,

including (but not limited to) Material Safety Data Sheets (MSDS), production

data, and process rates. You should identify the constituents of all raw materials,

intermediate products, by-products, and final products of contributing processes.

Id

.

---

38

Besides the metals analyzed in the petitioned waste under the initial evaluation, PDC

evaluated metals present in the treatment reagents. According to the TSD, because PDC’s

chemical treatment technology is proprietary in nature, the evaluation of these metals in

Appendix F to the TSD is marked “NDI,” non-disclosable information.

Id

. PDC provided

supporting information for the reagents in the unredacted version of Appendix F. The redacted

version sets forth the subheadings of Appendix F under which the information was provided:

“PDC Chemistry Description,” “Material Safety Data Sheets (MSDS),” and “Reagent

Constituent of Concern Evaluation.” TSD at 4-7, App. F. The TSD notes that other metals are

present in the treatment reagents:

Also, other metals identified as being in the treatment reagents were determined

not be COCs since they are either unregulated metals of very low concern, or the

reagent contribution is well below the risk-based screening level. TSD at 4-7.

The Board has carefully considered PDC’s evaluation and finds that excluding these metals from

the final list of CoCs is appropriate.

CoCs - Final List.

Based on the analytical results of the foregoing initial list of CoCs,

USEPA advises:

Using results of this totals analysis, a final list of constituents can be prepared to

include only the metals and organics from the 40 CFR 261.24 Toxicity

Characteristics list plus all additional constituents that were detected in the first

sample when analyzed for totals concentrations of constituents on the initial list.

“EPA RCRA Delisting Program--Guidance Manual for the Petitioner,” App. H,

Region 6, Att. 2 at 1, USEPA Region 6 (Mar. 23, 2000).

PDC formed its final list of CoCs by first excluding constituents that were not detected in

the analyses. TSD at 4-5. This conclusion is consistent with USEPA guidance in an e-mail from

Todd D. Ramaly, Environmental Scientist, RCRA Programs Section, USEPA Region 5, stating

“[g]enerally, we do consider across-the-board NDs [non-detects] as a zero.” TSD, App. C e-mail

from Ramaly (10/4/2007);

see also

65 Fed. Reg. 75897, 75901 (Dec. 5, 2000). The TSD also

notes “IEPA has agreed that constituents not detected at or above the MDL [Method Detection

Limit] can be omitted from consideration.” TSD at 4-5.

Several constituents were detected above the instrument Method Detection Limit (MDL)

but below the laboratory Estimated Quantitation Limit (EQL). The EQL, also known as the

Practical Quantitation Limit (PQL), is defined as “the lowest concentration that can be reliably

measured within specified limits of precision and accuracy for a specific laboratory analytical

method . . . .” 35 Ill. Adm. Code 742.200. “The non-detect concentration may be reported as the

method detection limit (MDL) or as the estimated quantitation limit (EQL).” “User’s Guide for

the U.S. EPA Region 6 Delisting Risk Assessment Software (DRAS),” EPA906-D-98-001 at 11

(Aug. 31, 2000).

PDC proposes a final list of CoCs to consist of these 14 metals:

---

39

•

antimony

•

arsenic

•

barium

•

beryllium

•

cadmium

•

chromium

•

lead

•

mercury

•

nickel

•

selenium

•

silver

•

thallium

•

vanadium

•

zinc

Br. at 81; Pet. at 15.

The metals selected include those forming the basis of the K061 listing in 35 Ill. Adm.

Code 721, plus additional constituents with K061 LDR treatment standards in 35 Ill. Adm. Code

728 and vanadium. TSD at 4-9, 6-4, App. G (SAP/QAPP) at 8. The 14 metals selected by PDC

are the same metals chosen for two USEPA delistings of chemically-treated EAF dust: Heritage

on January 15, 2002, and CSI on June 13, 1995. TSD at 4-9;

see also

65 Fed. Reg. 75897 (Dec.

5, 2000), 67 Fed. Reg. 1888-1896 (Jan. 15, 2002); 58 Fed. Reg. 58521-58533 (Nov. 2, 1993), 58

Fed. Reg. 67389 (Dec. 21, 1993), 60 Fed. Reg. 31107-31115 (June 13, 1995).

In the CSI federal delisting, the only initial constituents of concern established were the

14 metals PDC is proposing, as well as total oil and grease, total cyanide, and total sulfide. 60

Fed. Reg. 31107, 31108 (June 13, 1995). In the Heritage federal delisting, the initial constituents

of concern represented a broader list than in CSI: the 14 metals PDC is proposing, along with

total oil and grease, total cyanide, total sulfide, as well as semivolatile organic compounds

(SVOCs), VOCs, and total polychlorinated biphenyls (PCBs). 65 Fed. Reg. 75897, 75899 (Dec.

5, 2000). This broadening of the initial constituents of concern from 1995 to 2002 for the same

type of petitioned waste might reflect the increasing level of federal guidance issued between the

two delistings: The “EPA RCRA Delisting Program Guidance Manual for the Petitioner” is

dated March 23, 2000; the “RCRA Delisting Technical Support Document” (EPA906-D-98-001)

is dated August 1, 2000; and the “User’s Guide for the U.S. EPA Region 6 Delisting Risk

Assessment Software (DRAS)” (EPA906-D-98-001) is dated August 31, 2000.

In each of the two USEPA delistings, the final list of constituents of concern to be

monitored for compliance with delisting levels contains only the 14 metals PDC is proposing.

Beyond the 14 metals, oil and grease, cyanide, and sulfide, the CSI

delisting did not examine

other CoCs, and the Heritage

delisting had no detections of VOCs, SVOCs, or PCBs in the

petitioned waste. 60 Fed. Reg. 31107, 31108 (June 13, 1995); 65 Fed. Reg. 75897, 75900 (Dec.

5, 2000). Although PDC is proposing the same final list of 14 metals as these federal delistings,

PDC’s petitioned waste cannot be characterized as having “no detections” of any of the other

CoCs on PDC’s initial list.

CoCs - Excluded from Final List.

As discussed above, PDC excluded metals present in

the treatment reagents from the list of CoCs. PDC also excluded some constituents that were

detected above both the MDL and EQL:

ANALYTE

LABORATORY

ID

SAMPLE ID SAMPLE

DATE

RESULTS UNITS

---

40

Sulfide, total

0802176-01

R9-01

2/11/2008

700

mg/kg

14

Acetone

0712181-01

R2-01

12/10/2007 0.025

mg/kg

Bis(2-

ethylhexyl)phthalate

0712158-04

R1-03

12/7/2007

0.34

mg/kg

Dioxins/Furans

expressed as

Total 2,3,7,8-TCDD

Equivalence

1064827001-R

1064827003-R

1065168001

1065168002

1065168004

1065459001-R

1065459002-R

1065459003-R

R1-03

R2-03

R3-01

R4-01

R5-01

R6-01

R7-01

R8-01

12/7/2007

12/10/2007

12/11/2007

12/12/2007

12/13/2007

12/17/2007

12/18/2007

12/19/2007

120

33

130

100

160

55

78

100

ng/kg

15

(totals)

TSD, Table 3A, App. N.

For sulfide, there is no delisting level produced by DRAS, and sulfide is not listed in the

Illinois groundwater quality standards (35 Ill. Adm. Code 620) or USEPA’s Integrated Risk

Information Systems (IRIS) database. Therefore, the Board finds PDC’s exclusion of sulfide

appropriate.

The TSD acknowledges that acetone was the only VOC detected above the MDL and the

laboratory EQL. Acetone was detected in sample R2-01 at 0.025 milligrams per kilogram

(mg/kg), slightly higher than its EQL of 0.02 mg/kg. The TSD reasons:

when one considers that the EAF dust is generated in a high-temperature setting

(1,520 to 1,800

o

C), these sporadic and low detections support the exclusion of

VOCs as COCs for the delisting process. TSD at 4-5.

Because acetone was detected in only one sample on the order of the EQL and would not be

expected in the EAFDSR because of the high-temperature setting, the Board is amenable to

excluding acetone from the final list of CoCs.

For bis(2-ethylhexyl)phthalate, there is no specific discussion in the TSD. Bis(2-

ethylhexyl)phthalate was the only SVOC detected above both the MDL and EQL. Bis(2-

ethylhexyl)phthalate was detected in sample R1-03 at 0.34 mg/kg, slightly higher than its EQL

of 0.33 mg/kg. TSD App. L. The TSD generally discusses the detection of 35 SVOCs above the

MDL, which include bis(2-ethylhexyl)phthalate, but the other 34 are below the EQL. TSD

Table 3a. The TSD excludes all 35 as CoCs, reasoning that the MDLs were below the soil

remediation objectives for industrial/commercial properties under the Tiered Approach to

Corrective Action Objectives (TACO). TSD at 4-6.

PDC later noted further that bis(2-ethylhexyl)phthalate is considered a typical laboratory

contaminant. Resp. to HOO, Exh. A at 7. PDC also characterized the reported value as being

14

Milligrams per kilogram.

15

Nanograms per kilogram.

---

41

below the TACO soil remediation objectives and the DRAS delisting level.

Id.

Based on this,

PDC did not include bis(2-ethylhexyl)phthalate in the list of constituents to be monitored for

compliance with delisting levels. Because bis(2-ethylhexyl)phthalate was detected in only one

sample on the order of the EQL and is considered a typical laboratory contaminant, the Board

concurs with PDC’s exclusion of bis(2-ethylhexyl)phthalate from the final list of COCs.

The Board notes that the EQL itself is a type of detection limit as defined in 35 Ill. Adm.

Code 742.200. Additionally, the DRAS User’s Guide states the MDL and EQL may be used

interchangeably as the “non-detect concentration.” “User’s Guide for the U.S. EPA Region 6

Delisting Risk Assessment Software (DRAS),” EPA906-D-98-001 at 11 (Aug. 31, 2000).

Because acetone and the 35 SVOCs detected were below or on the order of the EQL and they

were either not expected in the EAFDSR because of the high temperature setting or attributed to

laboratory contamination, the Board will not include these in the list of constituents to be

monitored for compliance.

For dioxins/furans, various forms (congeners) were detected in all EAFDSR samples

when so analyzed. TSD at 4-6, App. L, App. N. Although detected, PDC does not designate

dioxins and furans as CoCs. TSD at 4-7. For the reasons discussed below, the Board will

include dioxins and furans in the final list of constituents to be monitored for compliance with

delisting levels.

CoCs - Delisting Levels.

The “delisting level” is “the maximum allowable concentration

of a waste constituent that will not exceed the target risk level for that compound.” “User’s

Guide for the U.S. EPA Region 6 Delisting Risk Assessment Software (DRAS)” at 13, USEPA

Region 6, EPA906-D-98-001 (Aug. 31, 2000). USEPA elaborated:

The delisting levels for each waste constituent are the maximum concentrations

(total and TCLP) allowed for the constituent in any batch of the petitioned waste,

based on the most sensitive pathway associated with exposure dependent on the

TCLP waste constituent concentration and the waste constituent total

concentration. Although the DRAS calculated a delisting level . . . for each of the

groundwater pathways, only the most sensitive pathway for each constituent is

selected as that constituent’s TCLP delisting level. USEPA’s “RCRA Delisting

Technical Support Document,” USEPA Region 6, EPA906-D-98-001, at 4-10

(Aug. 1, 2000).

Generally

.

Once a final list of CoCs is established, delisting levels (also referred to as

“screening levels”) are determined for the CoCs to demonstrate the petitioned waste meets the

conditions of the exclusion. PDC also used screening levels as a basis for excluding constituents

from the final list of CoCs. TSD at 4-4. The TSD explains that RMT established screening

levels for all constituents that were detected at least once during the demonstration. Screening

levels were established as the lower (

i.e.

, more stringent) of the following:

•

Toxicity characteristic (35 Ill. Adm. Code 721.124)

•

LDR UTS for K061 (35 Ill. Adm. Code 728.Subpart D (Section 728.148 and Table U)

---

42

•

Risk-based concentration, established using DRAS v.2 and/or other values and updates

established in consultation with USEPA Region 5.

TSD at 4-3; Pet. at 19.

Comparison of Proposed Delisting Levels

Constituent

PDC

Proposed

TCLP

Delisting

Level

(mg/L)

DRAS v. 2

Calculated

Maximum

Allowable

TCLP

Concentrations

(mg/L)

35 Ill. Adm.

Code 728.Tables

T, U (40 C.F.R.

§268.40)

LDR UTS for

K061

(mg/L)

35 Ill. Adm.

Code 721.124(b)

(40 C.F.R.

§261.24(b))

Toxicity

Characteristic

(mg/L)

Antimony

0.206

0.206

1.15

Arsenic

0.0936

0.00936

5.0

5.0

Barium

21.0

55.7

21.0

100

Beryllium

0.416

0.416

1.22

Cadmium

0.11

0.15

0.11

1.0

Chromium (total) 0.60

385

0.60

5.0

Lead

0.75

75

0.75

5.0

Mercury

0.025

0.0814

0.025

0.2

Nickel

11.0

28.3

11.0

Selenium

0.58

0.58

5.7

1.0

Silver

0.14

3.84

0.14

5.0

Thallium

0.088

0.088

0.20

Vanadium

3.02

21.1

Zinc

4.3

280

4.3

Pet. at 15; TSD, Table 8, App. H.

RMT opines that model-generated screening levels are:

sufficiently conservative so that constituents that are neither a basis of listing for

K061 nor have an LDR established for K061 can be eliminated from further

consideration as a COC, provided their concentrations do not exceed the

screening levels. TSD at 4-4 to 4-5.

However, PDC cites no USEPA policy to support this conclusion. The USEPA Guidance

Manual does not speak of eliminating detected constituents solely because their concentrations

do not exceed screening levels, they are not the basis of the K061 listing, and they lack LDR

UTS. The Board will establish delisting levels for the 14 metals plus dioxins and furans based

on the screening levels determined by PDC as the lowest (

i.e.

, most stringent) of the three

criteria above.

Dioxins and Furans

.

The TSD notes that various dioxins and furans were detected in

the EAF dust treatment residue. TSD at 4-6 to 4-7. Many commenters had concerns about

---

43

dioxins and furans.

See

,

e.g.

, Postcard 2; Tr. at 82 (Bob Jorgensen). Bill Cook, a chemist by

profession, questions why dioxins and furans were not included as constituents of concern. Tr.

at 94. He states that unlike metals, dioxins and furans cannot be converted into insoluble salts

and consequently, dioxins and furans “are going to find their way into the leachates below these

landfills.”

Id.

For the purposes of modeling, a toxicity equivalency quotient (TEQ) is used to express

the collective dioxins and furans as 2,3,7,8-TCDD (tetrachlorodibenzo-p-dioxin). TSD 4-16.

The TSD refers to the maximum concentration for the TEQ as 160 mg/kg that corresponds to a

carcinogenic risk of 2.1 x 10

-6

. TSD at 4-7. RMT used DRAS v. 2 to calculate a risk-based

screening level of 7,580 mg/kg for the 2,3,7,8-TCDD TEQ. TSD at 4-7, Table 3a. The TSD

notes that all the TEQs are significantly below the reported risk-based screening level of 7,580

mg/kg. TSD at 4-7. Although this discussion from the TSD refers to units of mg/kg, the data in

the Table 3a, App. L, and App. N indicate the values are off by 10

-3

and should be 160 ng/kg and

7,580 ng/kg, respectively.

A side-by-side comparison of the values for dioxins and furans in Table 3a and Appendix

L with those in the Appendix N raw laboratory data revealed discrepancies. None of the values

of the dioxin and furan congeners or the 2,3,7,8-TCDD TEQ in the summary tables agree with

the raw laboratory data. When identified by Board staff, PDC clarified that the raw data

included in Appendix N was incorrectly based on a dry-weight basis instead of a wet-weight

basis, and that RMT instructed the laboratory to resubmit the summary reports. Resp. to HOO,

Exh. A at 9. RMT used the revised values in Table 3a, but inadvertently did not place the

corresponding raw laboratory data of Pace Analytical Services, Inc. in Appendix N.

Id.

PDC

later provided the corrected laboratory reports.

Id.

, Exh. A, Att. 5.

Included in the Pace Analytical report regarding the reporting of the TEQ is an e-mail

from Laura Curtis of RMT instructing Pace Analytical that “all TEFs [2,3,7,8-TCDD

Equivalency Factors] must be reported using the U.S. EPA accepted 1989 ITEF default factors

. . . .” It appears that Pace Analytical did just that. The Pace Analytical reports each contain a

sheet listing the “2,3,7,8-TCDD Equivalency Factors (TEFs) for the Polychlorinated Dibenzo-p-

dioxins and Dibenzofurans, 89-ITE Factors” and a notation below each of the TEFs, “(Using ITE

Factors).”

Because of an error in DRAS v.2 for the fish ingestion pathway, USEPA provided the

spreadsheet on surface runoff and risk from dioxin. Ramaly, Environmental Scientist, RCRA

Programs Section, USEPA Region 5, provided the spreadsheet calculation model to be used as a

substitute model for the dioxin/furan evaluation of the fish ingestion pathway. TSD, App. H.

RMT calculated the level of risk using a spreadsheet calculation model and the TEQ value

considered maximum of 160 ng/kg. Results of the spreadsheet calculation model under the

Dietary Exposure/Risk Modeling show:

•

“Fishing CR” (Cancer Risk) of 2.08 x 10

-6

•

“Fish Concentration Edible Portion” of 8.66 x 10

-7

mg/kg

•

“Fishing DL” (Delisting Level): 7.70 x 10

-5

mg/L

TSD, App. H.

---

44

The TSD concludes that although the modeled risk for dioxin of 2.08 x 10

-6

is greater than the

target risk of 1.0 x 10

-6

, the modeled fish tissue concentration is consistent with national

background TEQ concentrations in fish tissues. TSD App. H “Dioxin/Furan Summary” at 2.

Besides the fish ingestion pathway evaluated in the spreadsheet calculation model, DRAS

examines other pathways to identify the most limiting one – the pathway with the lowest

concentration. The TSD observes that the TEQ of 160 ng/kg is below the screening level of

7,580 ng/kg for the

soil ingestion pathway

. However, the TSD does not mention how the TEQ

compares to the

groundwater adult dermal pathway

. Results of DRAS v.2 indicate the limiting

pathway for the 2,3,7,8-TCDD TEQ is the groundwater adult dermal pathway, with a maximum

allowable TCLP concentration of 2.05 x 10

-10

mg/L. TSD, App. H “Limiting Pathways: Results

for Analysis: Updated DRAS 2-19-08, Max values used.” Upon questioning by Board staff,

PDC clarified that the maximum observed TCLP concentration for dioxin TEQ for the PDC

EAFDSR is 0.040 pg/L

16

for sample R5-01, and that the limiting pathway determined by DRAS

was the groundwater adult dermal pathway. Resp. to HOO, Exh. A at 9

.

PDC points out that the

0.040 pg/L (0.40 x 10

-10

mg/L) value is less than the most stringent DRAS-derived maximum

allowable TCLP concentration for the groundwater adult dermal pathway of 2.05 x 10

-10

mg/L.

Id

. at 9-10.

Although detected, PDC asserts that dioxins and furans need not be included in the final

list of CoCs because “concentrations are not expected to pose an unacceptable risk over

background and are, as a result, not designated as COCs.” TSD at 4-7. PDC cites no USEPA

policy for the proposition. Excluding dioxins/furans here finds no support in the CSI and

Heritage delistings. As noted, the CSI delisting did not examine other CoCs beyond the 14

metals, oil and grease, cyanide, and sulfide, and the Heritage delisting had no detections of

VOCs, SVOCs, or PCBs in the petitioned waste. 60 Fed. Reg. 31107, 31108 (June 13, 1995); 65

Fed. Reg. 75897, 75900 (Dec. 5, 2000). The USEPA Guidance Manual states the final list of

constituents can be prepared to include all constituents that were detected:

a final list of constituents can be prepared to include only the metals and organics

from the 40 CFR 261.24 Toxicity Characteristics list plus all additional

constituents that were detected in the first sample when analyzed for totals

concentrations of constituents on the initial list. “EPA RCRA Delisting Program-

-Guidance Manual for the Petitioner,” App. H, Region 6, Att. 2 at 1, USEPA

Region 6 (Mar. 23, 2000).

Although dioxins and furans were reported below screening levels in the TCLP EAFDSR

samples, dioxins and furans were present at detectable levels in the totals analysis. Because the

totals analysis detected dioxins and furans above the MDL and EQL, the Board will add

dioxins/furans to the final list of CoCs to be monitored. Dioxins/furans do not have a toxicity

characteristic standard or LDR UTS. Consequently, the delisting level is the DRAS-derived

maximum allowable TCLP concentration for the groundwater adult dermal pathway of

16

Picograms per liter.

---

45

2.05 x 10

-10

mg/L, expressed as 2,3,7,8-TCDD. The Board therefore adds the following entry to

the table of delisting levels in condition 4:

Constituent

TCLP Delisting Level (mg/L)

Dioxins/Furans

expressed as Total 2,3,7,8-TCDD

(Total Tetrachlorodibenzo-p-dioxin)

Equivalence

2.05 x 10

-10

Mercury

.

USEPA Region 5 indicated that DRAS v.2 incorrectly calculates the

surface/fish ingestion pathway for mercury. Ramaly, Environmental Scientist, RCRA Programs

Section, USEPA Region 5, “recommended provisional DRAS v.3 outputs to more correctly

evaluate the risk posed by mercury from the disposal of the EAFDSR.” TSD, App. H, DRAS

provisional v.3, Tables and Summary. The TSD states that “[b]oth USEPA-5 and IEPA agreed

this Petition use the DRAS v.2 with updates provided by USEPA-5.”

Id.

The TSD explains that

DRAS provisional v.3 is currently being used by USEPA Region 5, but the Region verified that

DRAS v.3, with the remaining contractor modifications, would not be available to PDC before

its adjusted standard petition would be filed with the Board. TSD at 4-2.

“To assist in the evaluation, Mr. Ramaly provided provisional DRAS v.3 generated

screening levels for all database constituents.” TSD, App. H, DRAS provisional v.3 RMT

performed “a cursory review of the DRAS v.3 data but since the DRAS v.3 model is not

available to anyone by U.S. EPA, a full assessment regarding the different values will not be

fully discussed.”

Id

. Of the DRAS v.3 data generated, PDC focused only on the values for

mercury. TSD at 4-3.

The delisting level proposed by PDC for mercury is based on the LDR UTS of 0.025

mg/L because it is lower than the lowest DRAS calculated value of 0.0292 mg/L, which is the

lowest TCLP value calculated by DRAS v.2 and provisional v.3 for the soil ingestion pathway.

USEPA pointed out in the Heritage delisting that “[s]ince LDRs attach at the point of generation

this waste would not be considered hazardous and therefore is not subject to LDRs.” 67 Fed.

Reg. 1888, 1893 (Jan. 15, 2002);

see also

“RCRA, Superfund & EPCRA Call Center Monthly

Report,” EPA530-R-04-003a, RO 14699 (Jan. 2004) (“LDR attaches at the point of generation”).

PDC is nevertheless proposing to base the delisting level for mercury on the LDR UTS, opting

for a more stringent standard than the value produced through DRAS.

Arsenic

.

Although the target risk level for carcinogens in Illinois delistings is generally 1

in 1,000,000 (1 x 10

-6

), PDC is requesting an arsenic delisting level of 0.0936 mg/L (9.36 x 10

-2

mg/L) at a carcinogenic risk level of 1 x 10

-4

. At a target cancer risk level of 1 x 10

-6

, delisting

levels for arsenic calculated by DRAS v.2 are 0.00936 mg/L (using the updated MCL of 0.01

mg/L). TSD at 6-6 through 6-9. PDC is seeking a higher risk level for arsenic of 1 x 10

-4

. In

response to a question from Board staff, PDC supplemented its initial filing with all of the pages

from the 2/20/08 DRAS run that was performed for arsenic only with a target cancer risk level of

1 x 10

-4

. Resp. to HOO, Exh. A at 10, Att. 6. At the 1 x 10

-4

risk level, the maximum allowable

TCLP concentration for the limiting pathway (groundwater ingestion) derived by DRAS is 9.36

---

46

x 10

-2

mg/L. The maximum detected concentration of arsenic in the PDC EAFDSR is 3.70 x 10

-

3

mg/L.

Id.

PDC comments that it discussed the target risk for arsenic with IEPA and USEPA Region

5 on January 29, 2008. Resp. to HOO, Exh. A at 11. According to PDC, Ramaly,

Environmental Scientist, RCRA Programs Section, USEPA Region 5, stated that site-specific

conditions could justify alternative arsenic levels,

e.g.

, values similar to the drinking water MCL.

PDC comments that Ramaly indicated that in past delistings, USEPA has allowed a target

arsenic aggregate risk in the 1 x 10

-4

to 1 x 10

-6

range.

Id.

PDC refers to the federal delisting for Heritage. As Heritage faced the same issue

regarding arsenic risk levels, the Board quotes USEPA’s discussion from the

Federal Register

:

The total cumulative risk posed by the waste is approximately 1.6x10

-5

. Although

this value exceeds the Region 5 Delisting Program’s target risk level of 1x10

-6

for

delisting hazardous waste, [US]EPA believes that this risk is acceptable because

the estimated risk is almost entirely associated with a single contaminant/pathway

which may be evaluated in more than one way. Furthermore, [US]EPA has

considered cancer risks in the range of 1x10

-4

to 1x10

-6

to be acceptable in other

programs and the Region 5 Delisting Program has considered risks in this range

acceptable if there are reasons to do so.

In this case exposure to carcinogenic arsenic through ingestion of contaminated

drinking water accounted for almost all of the risk estimated from disposal of the

petitioned waste at a Subtitle D landfill. If the POE [point of exposure] target

concentration was set at the Safe Drinking Water Act (SDWA) Maximum

Contaminant Level (MCL), the maximum allowable waste leachate concentration

would be 0.96 mg/L TCLP, over 60 times higher that the maximum observed

leachate concentration in the waste. *** Given that the difference between the

MCL for arsenic and the health-based POE concentration is three orders of

magnitude and that . . . naturally occurring levels of arsenic are often higher than

these levels, we believe that some allowance can be exercised in setting the

allowable level for arsenic in the leachate. [US]EPA proposes to set the allowable

arsenic leachate level at a concentration which corresponds to a total waste cancer

risk of 1x10

-4

. . . . By this method, the delisting level for leachable arsenic in this

proposed exclusion will be set at a value [0.005 mg/L] which corresponds to a

POE concentration of approximately one-tenth of the existing MCL. The

[US]EPA has recently proposed to lower the arsenic MCL to one-tenth its current

value and thus, if finalized, it would correspond well with the delisting level we

are setting. 65 Fed. Reg. 75897, 75901-75902 (Dec. 5, 2000).

For analysis of the Heritage waste itself, USEPA set the corresponding arsenic maximum

allowable leachate concentration (mg/L TCLP) at 0.0936 mg/L.

Id.

USEPA lowered the arsenic MCL from 0.05 ppm to 0.01 ppm, only two-tenths of its

previous value and thus not as low as anticipated by USEPA in the Heritage delisting decision.

---

47

On January 22, 2001, USEPA adopted “a new standard for arsenic in drinking water at 10 parts

per billion (ppb) [0.010 ppm], replacing the old standard of 50 ppb. The rule became effective

on February 22, 2002. The date by which systems must comply with the new 10 ppb standard is

January 23, 2006.” http://www.epa.gov/safewater/arsenic/regulations.html

PDC is proposing

the same delisting level for arsenic as USEPA set for Heritage: 0.0936 mg/L. USEPA’s

reasoning in Heritage applies to PDC, especially as the arsenic MCL was not lowered as much as

had been proposed. PDC further notes that Illinois accepted a higher risk level for arsenic when

setting its Class I groundwater remediation standard of 0.05 mg/L, when the 1 in 1,000,000 (1 x

10

-6

) risk level is listed at 0.000057 mg/L. TSD at 6-9; 35 Ill. Adm. Code 742.Appendix A,

Table I.

Given the precedent set by USEPA in the Heritage delisting and the Illinois action in

setting the groundwater remediation standard for arsenic, the Board finds in this case that PDC’s

proposal to use the 1 x 10

-4

carcinogenic risk level for arsenic to derive a delisting level is

acceptable and that the delisting level of 0.0936 mg/L is appropriate in this case.

Issues Raised in Public Comment Concerning the Adequacy of PDC’s Demonstration

DRAS.

Several commenters express concern about the adequacy of DRAS. Dr. Peter L.

deFur, for HOI Sierra Club and PFATW, suggests that shortcomings in DRAS v.2 indicate the

risk-based concentrations (delisting levels) calculated are not scientifically sound. PC 302 at 3.

Tracy Meints Fox observes that although total chromium is included among PDC’s proposed

delisting levels, hexavalent chromium is not. PC 313 at 2. Fox also comments that PDC did not

adequately demonstrate that the generic “DRAS is an appropriate model for predicting the

behavior of stabilized wastes in the presence of MGPs [manufactured gas plant wastes], PCBs

and industrial waste streams.”

Id

. William Spencer, however, supports PDC’s use of DRAS as

the appropriate model for evaluating migration and exposure. PC 298 at 1.

PDC explains that DRAS “is intentionally site-neutral and incorporates a number of

default inputs that are recognized by the USEPA to conservatively model the risks from any

RCRA Subtitle D landfill.” Br. at 38. PDC adds that the “only changes made by RMT to the

default input values are applicable to all RCRA Subtitle D IEPA-permitted landfills in Illinois.”

Id

.

As the Board stated in BFI, using DRAS is not required by regulation, but DRAS has

been looked to by the Board in considering delistings.

See

BFI Waste Systems

, AS 08-5, slip op.

at 6. USEPA Region 5 explained:

DRAS is a tool we [USEPA] use in order to evaluate the potential risk posed by

delisted wastes when disposed of in a subtitle D landfill or surface impoundment.

DRAS is designed to conduct this evaluation based on the criteria for listing a

hazardous waste (40 C.F.R. § 261.11(a)(3)). Although this evaluation is a

requirement of the regulations governing delistings (40 C.F.R. § 260.22), the

specific use of DRAS and its methodologies are not. As such, there is no

regulatory requirement to use DRAS (or any specific version of DRAS). Letter of

---

48

July 16, 2008, to Board staff from Dale Meyer, Chief, RCRA Programs Section,

USEPA Region 5, PC 2 in BFI Waste Systems, AS 08-5.

USEPA is proceeding with updates to DRAS:

At this time, EPA Region 5 is using DRAS version 2 with modifications for

projects which have already been proposed by EPA for approval. DRAS version

3 is under active repair and a version suitable for release to the general public

should be available this summer. EPA Region 5 intends to use this repaired

version of DRAS 3 for new delisting determinations immediately upon its release.

Id

.

The Board accepted the application of DRAS v.2 with modifications in the recent BFI

delisting.

See

BFI Waste Systems, AS 08-5, slip op. at 26-27, 33. The Board does so again here.

The Board finds that PDC, in consultation with USEPA Region 5, has properly corrected for

known errors in DRAS v.2, as discussed above. Moreover, eight of PDC’s proposed delisting

levels are more protective values taken from the LDR UTS for K061 EAF dust (35 Ill. Adm.

Code 728.Subpart D), including concentrations for cadmium, chromium, lead, and mercury.

As to Fox’s concern regarding hexavalent chromium, the Board notes that the DRAS v.2

maximum allowable concentration is 385 mg/L for total chromium and 1.55 mg/L for hexavalent

chromium. TSD, App. H; 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).

PDC instead proposed a delisting level for total chromium based on the LDR UTS of 0.60 mg/L,

which is below the DRAS-derived values for both forms of chromium, and therefore protective

of both. The USEPA delistings for CSI and Heritage set delisting levels for total chromium. 60

Fed. Reg. 31107, 31114 (June 13, 1995); 67 Fed. Reg. 1888, 1895 (Jan. 15, 2002).

Demonstration Testing.

A number of commenters express concerns with the testing

information submitted by PDC to demonstrate the viability of the new stabilization process.

Carol VanWinkle comments that a study should be done to ensure the long-term viability of

PDC’s treatment process. VanWinkle recommends testing the process over a period of at least a

year to determine if the stabilized waste will stand up to conditions prevalent in a landfill. PC

10. Rosson questions the adequacy of PDC’s testing period of December 2007 to February 2008

and requests that PDC provide more extensive testing. Tr. at 113-114, 120; PC 16 at 2, 5;

see

also

PC 305 (Kim McLean Converse); PC 86 at 1 (Lisa Sandell); Postcard 1; Postcard 2.

Tracy Meints Fox expresses concern that the sampling was conducted over a short

timeframe and feels that PDC has not demonstrated the new treatment process’ effectiveness

during the higher temperature summer months. PC 313 at 1. In addition, Fox indicates PDC’s

“first-pass failure rate” for its waste stabilization process of 63.5% does not demonstrate the

process is production-ready. Tr. at 107-108; PC 313 at 4. Dr. deFur suggests that PDC’s need to

re-treat certain batches during its full-scale study indicates that “the process still has a number of

problems and is not ready for full-scale use.” PC 302 at 4.

---

49

Rosson suggests that standard EPA laboratory testing proposed by PDC may not provide

results indicative of actual conditions in a municipal landfill, adding that “[a] landfill is forever.”

Tr. at 115-116; PC 16 at 2. Tom Edwards points out that PDC does not claim the treatment

process removes the toxic metals or how long “they would be held in check.” PC 23 at 2. Lisa

Sandell similarly questions “how do we know EAF [dust] treated now will be forever

stabilized”? PC 86 at 2. Bill Cook questions whether PDC’s stabilized residue was subjected to

the extreme exposure of temperature, acidity, and alkalinity that the residue may be subject to in

a landfill. Tr. at 93. Cook notes that the U.S. Army Corp of Engineers conducted a 10-year

study to evaluate the disposal of TNT wastewater on municipal landfills. He argues that a

similar long-term study is needed to evaluate the disposal of PDC’s stabilized residue in

landfills. Tr. 93-94. Tracy Meints Fox states that while she does not expect PDC to conduct a

10- or 50- year evaluation, she believes that it is reasonable to expect PDC to provide a full year

of test results. Tr. at 108.

Ila Minson questions if the data presented considers the long-term effects, and factors in

the freezing and thawing of Illinois weather. PC 222 at 1. Minson suggests more intensive

research.

Id

. at 2. Dennis Ford also expresses concern regarding the lack of long-term studies to

evaluate “what is actually going to take place when this treated waste product ends up in a

municipal landfill, a RCRA Subtitle D landfill.” Tr. at 56. Tessie Bucklar echoes the concerns

that PDC has not completed a long-term study, noting that PDC’s testing did not involve “the

real world setting of a municipal landfill.” Tr. at 75; PC 306 at 1.

Dr. deFur suggests the TCLP and MEP tests PDC used possibly underestimate the

leaching potential of the material because of the complex chemical nature of landfill leachate

compared to the laboratory use of acetic acid alone. PC 302 at 2. Citing a 2004 report by

Fuessle and Taylor, Dr. deFur states experimental evidence demonstrates that stabilized waste

from electric arc furnaces does leach toxic metals and that leaching increases after 50 days.

Id

.

Charles Norris, PG, considers TCLP “not indicative of leachate compositions from a

waste or their evolution in the disposal environment” because TCLP will often under-predict

concentrations of inorganic contaminants in leachate. PC 312 at 3. Norris cites to findings of

the National Research Council indicating the NRC found laboratory characterization tests

inadequate when used as surrogates for determining field leachate composition of coal

combustion ash disposed in mined settings.

Id

. Norris adds that USEPA ranked TCLP as fourth

among available data types as indicators of real-world leachate composition for disposal of coal

combustion wastes.

Id

. at 11. In his experience with placement of stabilized materials for

structural fill at two applications in Virginia, Norris states that leachate is now causing

contamination of groundwater or surface water even though the stabilization process passed the

TCLP test.

Id

. at 11-12.

Dave Long, Environmental Manager, Sterling Steel, states that any interactions in

landfills between the stabilized waste and other wastes, such as acids in batteries or nail polish

removers, have very limited impact because such materials are present in very small amounts.

Tr. at 135. He argues that the TCLP testing procedure simulates a more acidic condition than

what is expected in a landfill.

Id.

---

50

PDC states that its laboratory testing for the petition covered a period of:

more than one and one-half years and generated thousands of laboratory data

points before a chemical treatment regimen was developed and refined that was

ready to take to full-scale in the form of the in-plant trials represented in the

Petition and its TSD. Br. at 33-34.

Samples were subjected to both the TCLP and MEP tests, the purpose of which is “to simulate

very long term exposure of the EAFDSR to the harshest possible Subtitle D landfill conditions,

under the worst regulatory conditions reasonably conceivable.” Br. at 34. PDC explains that the

TCLP is “designed to simulate co-disposal in an improperly managed, unlined municipal solid

waste landfill.”

Id

. PDC adds that the MEP estimates synthetic acid rain extractions that

simulate approximately 1,000 years of acid rainfall.

Id

. at 35, citing 47 Fed. Reg. 52687 (Nov.

22, 1982). PDC observes that the TCLP remains USEPA’s prescribed method for identifying

hazardous waste, demonstrating LDR compliance, and establishing delisting levels.

Id

. at 35.

PDC also responds to the comment of Tracy Meints Fox about PDC’s purported 63.5%

first-pass failure rate during the treatment demonstration. PDC explains that its SAP/QAPP

protocol inadvertently did not provide for re-sampling to gauge the efficacy of the treatment as

the chemical reaction progressed. Under its IEPA-issued operating permit, PDC was able to re-

sample, demonstrating the delisting levels are achieved as the treatment reactions are allowed to

continue. Br. at 49-50. Further, according to PDC, Dr. deFur incorrectly states that the TCLP

and MEP tests do not “provide any data about the long-term integrity of the treated waste.” Br.

at 30, quoting PC 302 at 2. PDC adds that Dr. DeFur comments on other EAF dust stabilization

regimens, but not this one. Br. at 30.

Regarding Norris’ comments on coal combustion wastes, PDC states that it is:

confused as to the pertinence of this comment because no inference can be made

from the Petition or TSD that PDC’s technology employs any such materials.

PDC’s Petition and TSD, its statements herein, and Dr. Chowdhury’s testimony

verify that none of the commenter’s perceived shortcomings will be experienced

with PDC’s treatment technology. Br. at 37.

The Board notes that for any delisting, demonstration samples must consist of:

enough representative samples, but in no case less than four samples, taken over a

period of time sufficient to represent the variability or the uniformity of the waste.

35 Ill. Adm. Code 720.122(h).

PDC analyzed twelve representative demonstration samples over several months of full-scale, in-

plant trials on EAF dust waste streams from ten steel mills. PDC obtained and validated over

1,000 data points. PDC treated an average of 71 tons of K061 EAF dust per day for the first

eight sampling rounds of its demonstration. Twelve to 22 mixer loads were treated each day.

The treatment residue analyzed in the ninth sampling round was from a 35-ton batch. TSD at 5-

2, 5-3. The Board finds that PDC has satisfied Section 720.122(h).

---

51

The Board also notes that the TCLP is at the heart of USEPA’s delisting guidance for fate

and transport analysis and for deriving delisting. “EPA RCRA Delisting Program--Guidance

Manual for the Petitioner” at 26, 27, 28, 30, 34, 35, USEPA Region 6 (Mar. 23, 2000). USEPA

prescribes the TCLP and the MEP specifically for stabilized wastes:

6.2.2 Stabilized Wastes

If your petitioned waste is generated from the chemical stabilization of a listed

waste, then you should quantify leachable metal concentrations using the Multiple

Extraction Procedure (MEP), SW-846 Method 1320, as well as by TCLP

analyses. We need MEP test results for stabilized wastes to assess the long-term

stability of the waste. You should change the MEP by using the TCLP in place of

the EP in Method 1320. “EPA RCRA Delisting Program--Guidance Manual for

the Petitioner” at 30, USEPA Region 6 (Mar. 23, 2000).

In the Heritage and CSI delistings, USEPA relied upon the TCLP and MEP tests in

conducting its evaluations and making its determinations. USEPA’s response to a commenter’s

concern regarding TCLP and MEP illustrates USEPA’s position. In the CSI delisting, one

commenter states:

that the petition relied on the TCLP and MEP chemical testing procedures to

determine the efficacy of CSI’s stabilization process, but largely failed to address

the long-term physical durability (or structural integrity) of the stabilized EAFD.

The commenter believed that the stabilized EAFD will deteriorate over time once

disposed of in landfills or elsewhere, which could result in airborne or waterborne

exposure which was not evaluated. The commenter presented a list of applicable

physical test methods, and suggested that at a minimum, freeze-thaw and wetdry

durability tests be performed, and that EPA should apply “deterioration models.”

[USEPA] Response: This rulemaking adequately addresses the potential

deterioration of CSI’s CSEAFD and the resulting leachability of the material.

The MEP was developed to predict the long-term leachability of stabilized

wastes, consisting of ten sequential extractions that simulate approximately 1,000

years of acid rainfall. This method requires that the sample of stabilized material

be first crushed and ground so that the sample material can pass through a 9.5-mm

[millimeter] sieve (as part of the TCLP extraction incorporated in the MEP). The

use of particles less than 9.5 mm is comparable to a worst-case assumption of

degradation of the stabilized material. 60 Fed. Reg. 31107, 31111 (June 13,

1995).

Consistent with USEPA guidance and precedent discussed above, the Board relies on the TCLP and

MEP analyses provided by PDC.

Independence of Testing.

Postcards 1 and 2 express concern over the lack of

independent testing to verify the results of PDC’s waste stabilization process. Julie Luner

similarly states that the Board should not delist PDC’s waste without independent testing and

---

52

verification of the efficacy and long-term safety of the new proprietary stabilization technology.

Tr. at 78. Dan Pioletti echoes Luner’s concern. Tr. at 85;

see also

PC 222 at 2 (Minson); PC

305 (Kim McLean Converse); PC 86 at 1 (Lisa Sandell).

In response, PDC emphasizes that it did not perform any of its own sampling and

analysis. PDC states, “RMT, the company that performed all the sampling and analysis for the

Petition, is an independent consulting company, with its own reputation and integrity to

safeguard.” Br. at 33. In turn, PDC notes, RMT itself chose an independent testing laboratory to

perform all the testing used in developing the petition and TSD.

Id.

In addition, the Peoria

County Board independently hired Patrick Engineering to review the petition and TSD. PDC

asserts that Patrick Engineering did not find any flaws with RMT’s work on the petition or TSD.

Id.

The Board notes that in Illinois, a petitioner seeking a delisting has the burden to

demonstrate that the petition and supporting documentation justify the request in accordance

with the applicable laws and regulations. The Act requires IEPA to review the petition and all

supporting information, including any sampling and laboratory testing data, and file its

recommendation for Board consideration. IEPA’s recommendation here did not take issue with

the approach taken by PDC regarding sampling and analysis. Further, it is common practice for

petitioners to hire consulting firms to perform sampling and analysis in support of adjusted

standard petitions before the Board.

See

,

e.g.

, BFI Waste Systems, AS 08-5, slip op. at 7. PDC’s

approach is consistent with that used by Heritage and CSI in their delisting petitions before

USEPA.

See

65 Fed. Reg. 75897, 75898-75906 (Dec. 5, 2000); 58 Fed. Reg. 58521-58533

(Nov. 2, 1993).

The Board further notes that the Act provides for a laboratory accreditation process,

authorizing IEPA to “establish and enforce minimum standards for the operation of laboratories

relating to analyses and laboratory tests . . . .” 415 ILCS 5/4(n) (2006). IEPA regulations on

laboratory accreditation require compliance with NELAC standards and the USEPA Test

Methods for Evaluating Solid Waste, SW-846. 35 Ill. Adm. Code 186.110(a), 186.180(b)(3).

Both laboratories retained by PDC to perform analytical testing on EAFDSR, TriMatrix

Laboratories, Inc. in Grand Rapids, Michigan and Pace Analytical Services, Inc.’s Dioxin

Laboratory in Minneapolis, Minnesota, have been accredited by IEPA under 35 Ill. Adm. Code

186. TSD, App. E of App. G, SAP/QAPP at 3-26 through 3-27, App. F of App. G, citing

www.pacelabs.com/about-us/certifications.html

.

Stabilization.

To demonstrate that EAFDSR can satisfy the criteria for delisting, PDC

worked with a consultant to develop a new proprietary stabilization technology for treating K061

EAF dust. Pet. at 2; TSD at 3-16. The new PDC technology stabilizes metals through a series of

chemical reactions while providing buffers to resist changes in pH. TSD at 3-18. For the

treatment demonstration, pH buffering is important when both acidic and alkaline extraction

fluids are used in the sample analysis.

Id

.

Under the proposed adjusted standard, PDC would have to use this “new proprietary

stabilization technology” to treat the listed K061 EAF dust, though PDC’s proposal “allows

conditioned flexibility regarding the chemical technology employed,” as discussed later in this

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53

opinion. Pet. at 2, 18. PDC explains that its new stabilization technology “effectively stabilizes

K061 metal constituents and removes the hazard of toxicity.”

Id

. at 4. The hazardous

constituents contained in the EAFDSR (

i.e.

, metals listed in 35 Ill. Adm. Code 721.Appendix G),

continues PDC, are:

essentially rendered immobile, such that the concentrations of these hazardous

constituents are below: 1) the LDRs applicable to K061 EAF dust, 2) the

Characteristic of Toxicity levels established at 35 Ill. Adm. Code 721.124, and 3)

risk-based levels established by the USEPA’s Delisting Risk Assessment

Software (“DRAS”) model or other method approved by the USEPA and IEPA to

demonstrate that the constituents of concern are at concentrations that are non-

threatening to human health and the environment.

Id

.

Dr. Chowdhury specifically stated at hearing that the new stabilization process is not mere

dilution of the EAF dust. Tr. at 34. Dr. Chowdhury further testified as follows under direct

examination:

Q

The process you created to stabilize the electric arc furnace dust, does it

permanently stabilize that dust? Will there be changes over time?

A

No.

Q

And under landfill conditions would the stabilized electric arc furnace dust

ever destabilize in an extreme acidic environment in a landfill?

A

No.

Q

An extreme alkaline environment in a landfill?

A

No. The answer is no.

Q

In heat encountered in a landfill?

A

No.

Q

How about in cold that one would encounter in a landfill?

A

No. Temperature has no effect on the chemistry. Tr. at 34-35.

The Baker & McKenzie, LLP law firm suggests that with PDC’s new technology, it is the

TCLP test itself that causes the reaction leading to stabilization. Baker & McKenzie asserts that

PDC did not “explain if sufficient water is added to provide a medium in which the reactions can

occur.” PC 33 at 3-4. PDC counters that it does not dry mix waste with treatment chemicals.

Adding water, PDC continues, is a process component that facilitates mixing and prevents

airborne emissions when the treated waste is deposited at the face of the landfill. PDC

emphasizes that the treatment technology does not rely on the TCLP extraction fluid to initiate

the chemical reaction. Br. at 54.

The Board notes that the effectiveness of stabilization has been questioned in earlier

proceedings. In response to this concern in the Heritage

delisting, USEPA stated:

At this time, stabilization is considered to be the best available treatment for metal

bearing wastes. We have no evidence that constituents of concern have ever

leached from this stabilized waste. To assure that the waste continues to meet the

levels established here, we are requiring periodic testing of the waste and

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54

placement of the waste in a solid waste landfill which has ground water

monitoring. 67 Fed. Reg. 1888, 1894 (Jan. 15, 2002).

Further, USEPA has established the process of stabilization as a Best Demonstrated Available

Technology (BDAT) for metal-bearing wastes such as the K061 EAF dust. 62 Fed. Reg. 26041,

26044 (May 12, 1997); TSD at 1-2.

Generator and Out-of State Waste.

In a joint public comment, HOI Sierra Club and

PFATW take issue with PDC receiving EAF dust generated outside of Illinois, noting that PDC

proposes accepting EAF dust from steel mills in Wisconsin, Iowa, Kentucky, Indiana, and

Nebraska, accounting for at least 60% of the EAF proposed to be accepted from the ten pre-

approved mills. PC 301 at 8. HOI Sierra Club and PFATW further note that under the proposed

adjusted standard, PDC could accept additional waste streams “potentially from a wide universe

of potential sources in the Midwest and beyond.”

Id

.

Most of the arguments of HOI Sierra Club and PFATW regarding out-of-state waste

relate to container storage and truck traffic, which the Board addresses below in its discussion of

the Section 27(a) factors. PC 301 at 8-9. According to these groups, PDC’s claim that its

EAFDSR will be generated or managed in Illinois “elevates form over substance.”

Id

. at 9;

see

also

PC 300 at 3-4 (Stephen Lester); PC 307 (Edwards). The Board disagrees with the HOI

Sierra Club and PFATW on this point.

Section 720.122(p) provides that any petition to delist “must include a showing that the

waste will be generated or managed in Illinois.” 35 Ill. Adm. Code 720.122(p). While the steel

mills generate EAF dust sent to PDC, the Board has held that PDC is the “generator,” within the

meaning of the Act, of the stabilized residue resulting from PDC’s current treatment of K061.

Peoria Disposal Co. v. IEPA

, PCB 08-25, slip op. at 25 (Jan. 10, 2008);

see also

415 ILCS

5/3.205 (2006) (“generator” means “any person whose act or process produces waste”), 35 Ill.

Adm. Code 720.110 (“generator” means “any person, by site, whose act or process produces

hazardous waste identified or listed in 35 Ill. Adm. Code 721 . . . .”). This determination is in

accord with finding that the EAFDSR is the listed waste K061 under the “derived-from” rule:

“any solid waste

generated from the treatment

. . . of a hazardous waste . . . is a hazardous

waste.” 35 Ill. Adm. Code 721.103(e)(1) (emphasis added). PDC has proposed as a condition

for the adjusted standard that the EAFDSR must be disposed of in landfills located in the State of

Illinois. The Board’s delisting, of course, applies only in this State. 35 Ill. Adm. Code

720.122(r) (“Delistings apply only within Illinois.”).

Board Conclusion on Whether PDC Has Satisfied the Technical RCRA Regulatory

Delisting Requirements.

As discussed above, the treatment residue contains hexavalent

chromium, lead, and cadmium, the constituents for which EAF dust is listed, and there are

constituents of concern in the treatment residue other than hexavalent chromium, lead and

cadmium. The Board finds, however, that the data, including that obtained through application

of USEPA’s DRAS, demonstrate that PDC’s new proprietary technology effectively immobilizes

the metal constituents of concern. PDC subjected demonstration samples to the aggressive

leaching simulations mandated by USEPA. In PDC’s demonstration, PDC’s new treatment

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55

technology, including additional curing time and re-treatment (discussed below), achieved each

of the 14 delisting levels for the metals of concern.

The Board adds dioxins and furans as a constituent of concern as they were present in the

treatment residue at detectable levels. Dioxins and furans accordingly must be monitored for

compliance with a delisting level, which the Board sets at the most stringent DRAS-derived

TCLP concentration of 2.05 x 10

-10

mg/L, expressed as 2,3,7,8-TCDD. The maximum observed

TCLP concentration in PDC’s treatment residue (0.40 x 10

-10

mg/L) was less than this delisting

level.

The Board finds that the treatment residue, derived from EAF dust, does not meet the

criteria under which K061 EAF dust was listed and that no other factors warrant retaining the

treatment residue as listed hazardous waste. PDC has proven that the treatment residue does not

pose a substantial present or potential threat to human health or the environment when

considering all of the relevant factors, including the results of modeling a “reasonable worst-case

management scenario” of disposal in an unlined landfill.

See

35 Ill. Adm. Code 720.122(a), (b),

(d), 721.111(a)(3). The Board’s decision takes into account PDC’s risk assessment and the

conditions crafted for the adjusted standard’s language, which are further discussed below.

To receive a delisting, the petitioner must also demonstrate that the waste does not

exhibit any of the characteristics of hazardous waste,

i.e.

, ignitability (35 Ill. Adm. Code

721.121), corrosivity (35 Ill. Adm. Code 721.122), reactivity (35 Ill. Adm. Code 721.123), or

toxicity (35 Ill. Adm. Code 721.124). 35 Ill. Adm. Code 720.122(d)(3). For the reasons below,

the Board finds that PDC has made this demonstration.

PDC did not test in the laboratory for the waste characteristics of ignitability, corrosivity,

or reactivity. TSD at 4-4, 4-8. If the petitioner does not provide analyses for the characteristics

of ignitability, corrosivity, or reactivity, USEPA advises that the petitioner may “provide a

detailed explanation regarding why the waste does not exhibit a given characteristic.” “EPA

RCRA Delisting Program--Guidance Manual for the Petitioner” at 28, USEPA Region 6 (Mar.

23, 2000). PDC’s petition states that “[b]ased on knowledge of the process generating the EAF

dust and PDC’s knowledge of the chemicals used to treat the waste, the EAFDSR has been

determined not to exhibit the hazardous characteristics of ignitability, corrosivity, or reactivity.”

Pet. at 25. The TSD provides further explanation:

Specifically, the EAFDSR is not a liquid so it is excluded from the definition for

ignitable and corrosive wastes. Regarding the characteristic of reactivity, PDC

presently analyzes a sample collected from each load of EAF dust received at the

WSF for reactivity, and the characteristic of reactivity has never been observed.

Further, the treatment reagents have no reactive components, and so cannot react

violently with water or spontaneously ignite. TSD at 4-9.

A solid waste exhibits the characteristic of toxicity if, using the TCLP, the extract from a

representative sample contains any of the contaminants listed in the table below at a

concentration equal to or greater than the respective value given in the table. 35 Ill. Adm. Code

721.124(a).

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56

Contaminant

Regulatory Level (mg/L)

Arsenic

5.0

Barium

100.0

Benzene

0.5

Cadmium

1.0

Carbon tetrachloride

0.5

Chlordane

0.03

Chlorobenzene

100.0

Chloroform

6.0

Chromium

5.0

o-Cresol

200.0

m-Cresol

200.0

p-Cresol

200.0

Cresol

200.0

2,4-D

10.0

1,4-Dichlorobenzene

7.5

1,2-Dichloroethane

0.5

1,1-Dichloroethylene

0.7

2,4-Dinitrotoluene

0.13

Endrin

0.02

Heptachlor (and its epoxide)

0.008

Hexachlorobenzene

0.13

Hexachlorobutadiene

0.5

Hexachloroethane

3.0

Lead

5.0

Lindane

0.4

Mercury

0.2

Methoxychlor

10.0

Methyl ethyl ketone

200.0

Nitrobenzene

2.0

Pentachlorophenol

100.0

Pyridine

5.0

Selenium

1.0

Silver

5.0

Tetrachloroethylene

0.7

Toxaphene

0.5

Trichloroethylene

0.5

2,4,5-Trichlorophenol

400.0

2,4,6-Trichlorophenol

2.0

2,4,5-TP (Silvex)

1.0

Vinyl chloride

0.2

35 Ill. Adm. Code 721.124(b).

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57

The TSD documents that “none of the analytical results from the demonstration sampling events

exceeded their toxicity characteristic (hazardous) levels specified in 35 IAC 721.124.” TSD at

4-2;

see

TSD, App. L.

Based on all of the foregoing, the Board finds that PDC has its burden of proof under the

RCRA regulations for receipt of a delisting.

See

35 Ill. Adm. Code 720.122(a), (b), (d), (h), (i),

(p).

Conditions of the Delisting

Specified Stabilization Technology

Condition 2 of PDC’s originally-proposed adjusted standard language stated that “[t]his

adjusted standard is provided only for K061 waste treated using PDC’s mechanical mixer” and

that “PDC’s treated K061 residues generated by the PDC K061 stabilization process described in

its Petition . . . are non-hazardous.” Pet. at 13. Board staff pointed out that these references do

not limit the delisting to treatment residue resulting from PDC’s “new proprietary stabilization

technology” and could be confused with PDC’s existing chemical stabilization regimen, which is

also referred to in the petition. In response, PDC proposed the following language, which the

Board incorporates with minor amendments:

This adjusted standard is provided only for K061 wastes treated using PDC’s new

proprietary stabilization technology described in the RCRA Delisting Adjusted

Standard Petition for PDC EAF Dust Stabilized Residue (“EAFDSR”) filed by

PDC on April 25, 2008 (the “Petition”) . . . . Br. at 78.

Additional K061 Waste Streams

Offutt expresses concern over the provision of PDC’s proposal allowing PDC to accept

wastes for treatment from additional K061 sources (

i.e.

, mills not among the ten listed in the

petition) without approval from a regulatory agency. PC 20 at 2. Offutt believes the wide

variability of materials contributing to the steelmaking process would lead to wide variability in

constituents of concern in the EAF dust.

Id

. Tracy Meints Fox questions whether PDC’s

sampling protocol represents the current and future variability of EAF waste. Ms. Fox quotes a

passage from S. Ramachandra Rao in

Resource Recovery and Recycling from Metallurgical

Waste

, 2006: “The composition of EAF dust varies widely depending on the scrap used, the type

of steel being made, the operating conditions and procedures . . . . [S]ince the ratio of galvanized

scrap used has been increasing, the composition of zinc and lead in the dusts has also been

increasing.” PC 313 at 1. Rick Fox comments that PDC’s proposal lacks provisions for

oversight by a State agency. PC 314 at 1. Mr. Fox observes that PDC has requested flexibility

to add additional generators without re-petitioning the Board. PC 311 at 2. Rosson expresses

concern that PDC’s proposal would allow “self-approval of any future EAFD intake from any

number of mills.” Tr. at 115, 119; PC 16 at 2.

As to the variability of the waste, PDC points to Tables 1a and 1b in the TSD, which

provide a “summary of the variability, by final COC, in each mill’s K061 waste stream for the

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58

years 2001 through 2007.” Br. at 44. PDC used this data along with each mill’s generation rates

to develop a representative sampling process that was reviewed by and discussed with IEPA and

USEPA prior to implementation. Br. at 44-45. PDC explains that as proposed, the company:

can only accept a new EAF dust for treatment and disposal under the Adjusted

Standard after conducting a separate study and analysis demonstrating that the

EAFDSR generated from treatment of the new EAF dust meets the same delisting

levels as the EAFDSR in the trials described in the Petition and TSD. Br. at 42.

PDC adds that “[t]o do otherwise would be to jeopardize the success of an entire day’s batch of

EAFDSR because of one contributing mill.”

Id

.

PDC reiterates that its pre-acceptance treatability testing, combined with post-treatment

testing of every daily batch, will ensure that any prospective K061 waste stream is as amenable

to PDC’s treatment technology as those represented in the in-plant trials conducted for the

petition. Br. at 68. PDC notes that under the USEPA Guidance Manual, “[m]ultiple waste

treatment facilities (MWTFs) typically receive large numbers of individual waste shipments

having a wide variety of compositions.” Br. at 41, quoting “EPA RCRA Delisting Program--

Guidance Manual for the Petitioner” at 24, USEPA Region 6 (Mar. 23, 2000). PDC adds that the

Guidance Manual requires a “procedure for prescreening clients and wastes,” which PDC has.

Id

.

Rosson argues that PDC’s delisting is different than other delistings of EAF dust

nationally. Tr. at 111. She notes that while all delistings she reviewed were specific to a steel

mill or a foundry where the EAF dust is generated, PDC is proposing to take EAF dust from a

number of steel mills for treatment at its facility. Tr. at 111-112; PC 16 at 1. Rosson explains

that in USEPA’s CSI delisting involving the Super Detox

TM

treatment process, a treatment plant

is installed at each mill. Rosson believes this approach lends consistency to the components of

the EAF dust waste stream. Tr. at 112; PC 16 at 1. Rosson suggests the variation in EAF dust

from different mills could be significant.

Id.

Rosson requests that each new source of EAF dust

be approved by IEPA. Tr. at 120 and PC 16 at 5.

Comparing the delisting levels proposed by PDC to those used by USEPA in the Super

Detox

TM

CSI delisting, Tracy Meints Fox observes that the TCLP delisting levels are lower (

i.e.

,

more stringent) for the Super Detox

TM

delisting. PC 313 at 4. Rosson also states that other

delistings of EAF dust do not involve disposal in municipal landfills, but rather disposal on-site

at the steel mill itself. PC 16 at 4. Rosson suggests that if the treated EAF dust is the only waste

being disposed of at the site, “this seems to me a much safer situation” than co-disposal with

municipal waste that may be corrosive, acidic, or flammable. PC at 4. David Wentworth notes

that EAF dust delistings are very site-specific, but with PDC, it is just the opposite with waste

coming from multiple mills to one location for treatment and then treated material being

disposed in multiple landfills. Tr. 128-129. Blumenshine asserts that PDC should provide site-

specific information for all landfill sites where PDC intends to send its treatment residue. Tr. at

124;

see also

Postcard 1. Norris, PG, observes that “there is no other municipal landfill that

accepts these wastes, let alone in this quantity or form.” PC 312 at 9.

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59

PDC responds that the delisting of K061 wastes has been sought by numerous companies

other than PDC. Br. at 29. Regarding Rosson’s statement that other delistings only allowed on-

site disposal, PDC clarifies that none of the K061 delistings approved by USEPA have mandated

on-site disposal. Br. 43, citing 40 C.F.R. 261.Appendix IX, “Wastes Excluded Under §§260.20

and 260.22.” PDC points out that USEPA’s Heritage delisting is an example of a delisted K061

disposed of in a Subtitle D municipal waste landfill. In addition, at the public hearing, Curtis of

RMT testified that she is familiar with ten K061 delistings, seven of which were for commercial

waste treatment facilities rather than steel mills and seven of which contemplated disposal in a

municipal solid waste landfill rather than on-site. Br. at 43; Tr. at 16-17.

In response to Fox’s observation that the delisting levels in USEPA’s CSI delisting

(1995) are lower than those proposed here, PDC notes that delisting levels in general are:

set at waste- and situation-specific, risk-based concentrations, capped at the

constituent-specific LDR standards. Therefore, each risk assessment is apt to

yield different allowable concentrations. Br. at 48.

In addition, LDR standards change over time.

Id

. PDC compares its proposed delisting levels to

the more recent USEPA Heritage delisting (2002), noting that 9 of the 14 proposed levels here

are lower (

i.e.

, more stringent) and 5 are equal to those imposed in Heritage.

Id

. Curtis, Project

Manager with RMT, rendered her opinion in testimony at hearing:

Q

Is it RMT’s conclusion that PDC’s treatment of the electric arc furnace

dust, the K061 waste, renders the waste nonhazardous and subject to

delisting?

A

Yes, it is.

Q

And is it RMT’s position that the proposed delisting is entirely protective

of the environment and public health and safety?

A

Yes. This is our belief. Tr. at 28.

The Board emphasizes that PDC is petitioning for an “upfront” and “conditional”

delisting. Pet. at 2; Br. at 41. USEPA defined upfront delistings:

exclusions for wastes and/or waste residues that have not yet been generated, but

will be generated in the future, based on available information (e.g., pilot-scale

system data) that demonstrates that the petitioned waste will most likely meet the

delisting criteria. “U.S. EPA RCRA Delisting Program Guidance Manual for the

Petitioner” at 8 (Mar. 23, 2000);

see also id

. at 23 (“upfront exclusion for a waste

that is not currently generated, yet will be in the future”).

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

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60

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

.

PDC’s TSD explains that the composition of EAF dust “varies depending upon the types

of scrap (e.g., galvanized, high carbon, etc.) and the types/quantities of flux and other additives

that are used in the melting process.” TSD at 2-1. As noted, Tables 1a and 1b of the TSD

provide a comparison the of the metals content of EAF dust from the ten steel mills in the

demonstration study. The TSD describes PDC’s chemical treatment regimen as “robust enough

that all K061 wastes currently received are readily treated to meet the LDR standards using the

same reagent ‘recipe.’” TSD at 3-15. Whether variability is attributed to “differing

compositions in the waste from the mills or to operating conditions, such as variations in

chemical composition or reaction time,” PDC is proposing to sample every batch of treated EAF

dust to verify that delisting levels are met before disposal.

Id

.

Both the Heritage and CSI delistings by USEPA require disposal of the non-hazardous

waste treatment residue in a Subtitle D landfill. As mentioned above, USEPA’s CSI decision is

a multiple-site delisting. That is, USEPA’s delisting approved CSI’s modified SuperDetox

TM

technology for use at the Sterling, Illinois Northwestern Steel site, and in turn that technology

could be used at additional steel mills,

i.e.

, on additional K061 waste streams, if sampling and

analysis of the new waste stream show that the SuperDetox

TM

technology can consistently meet

the delisting levels. At the time, CSI contemplated constructing a number of other facilities

nationwide. 60 Fed. Reg. 31107, 31108, 31114 (June 13, 1995). USEPA made provision for

this addition of facilities “based on the analytical data obtained from both CSI’s full-scale

Sterling, Illinois facility, and CSI’s laboratory-scale processing of EAF dust from 12 other steel

mills at its laboratory located in Horsham, Pennsylvania.” 58 Fed. Reg. 58521, 58529 (Nov. 2,

1993).

By comparison, the Board’s delisting approves PDC’s new proprietary stabilization

technology for use at the Peoria PDC site, and in turn that technology could be used on

additional K061 waste streams if sampling and analysis of the new waste stream show that

PDC’s new proprietary stabilization technology can meet the delisting levels. Based on

analytical data obtained from PDC’s full-scale testing of waste streams from 10 steel mills, the

Board makes provision for the possibility of adding K061 waste streams.

The Board acknowledges that under the CSI

delisting, after USEPA receives the test

results for treatment of an additional K061 waste stream, the new steel mill would not be added

to the delisting without USEPA pre-approval. USEPA makes clear, however, that such an

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61

approval process is not a new delisting demonstration, despite the fact that different steel mill

K061 waste streams would be added:

[US] EPA is not requiring the company to submit a separate delisting petition for

each new facility. It would make no sense to require a company to submit

multiple individual petitions for similar wastes generated from similar process

and feed materials when the only difference between petitions is the name and

location of the specific facility; to do so would be an unnecessary administrative

burden and waste of resources for both [US]EPA and the petitioner. 60 Fed. Reg.

31107, 31110 (June 13, 1995).

Tellingly, before the addition of a new mill to the delisting, USEPA requires that the new K061

waste stream be TCLP tested only for compliance with the delisting levels set forth in USEPA’s

original decision (

i.e.

, no new CoCs or different concentrations for original CoCs), despite the

prospect of EAF dust waste-stream variability across different mills nationally. The Board

likewise requires PDC to TCLP test any potential new K061 waste stream for the condition 4

delisting levels. Those are the same 14 metals imposed in the CSI delisting, except the Board

adds dioxins/furans.

The Board requires PDC to submit the treatability results to IEPA within seven days of

completion of testing. IEPA does not have a right of pre-approval in the sense of USEPA’s

power under the CSI delisting. The Board’s approach is in part a function of how in Illinois,

USEPA’s duties are split between IEPA and the Board, with day-to-day RCRA program

implementation allocated to IEPA and delisting authority vested in the Board. This does not

make PDC’s submittal to IEPA meaningless. The Board also notes that besides assessing an

additional K061 waste stream, the testing required by USEPA serves the function of ensuring

that the newly-constructed Super Detox

TM

system is operating properly once brought on-line at

the new location, which is not an issue for PDC. 58 Fed. Reg. 58521, 58523, 58529 (Nov. 2,

1993). Nevertheless, should IEPA be concerned with any such submittal by PDC, IEPA could,

for example, make the necessary filing with the Board to amend this delisting.

See

Petition of

Peoria Disposal Co. for Adjusted Standard from 35 Ill. Adm. Code 721 Subpart D, AS 91-3, slip

op. at 10-11 (Mar. 11, 1993) (“The Board is not unmindful that if the Agency later finds cause

for concern because these constituents appear at levels of significance, it can then deal with the

situation by filing an appropriate petition for modification of the adjusted standard before the

Board.”).

Using language from CSI

, the Board modifies PDC’s proposal and require that the

bench-scale treatability testing show that a new K061 waste stream treated with PDC’s new

proprietary stabilization technology can “consistently” meet the delisting levels. As PDC

suggests, however, it is not in PDC’s economic self-interest to accept K061 waste streams that

PDC cannot consistently treat to delisting levels without the cost of re-treatment. Further, PDC

proposes, and the Board requires, testing of a composite sample from every single treated batch

for delisting level compliance. The Board finds that PDC’s sampling of every batch of treated

EAF dust assures compliance with all delisting levels. USEPA requires CSI to test a composite

sample each month, composed of samples collected from all batches treated over the course of

that month. USEPA found this monthly testing would address the fact that “the concentration of

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62

the constituents of concern may vary somewhat depending upon the type and quality of scrap

metal charged in the steel-making process.” 58 Fed. Reg. 58521, 58528 (Nov. 2, 1993).

Of critical importance here is that the Board is not delisting the waste streams of the ten

steel mills in the petition or any future waste streams:

[T]his adjusted standard does not delist the waste stream. Rather, the adjusted

standard granted applies only to those treated batches that meet the delisting

criteria. Peoria Disposal Co., AS 91-3, slip op. at 9 (Mar. 11, 1993).

The Board finds the conditions proposed by PDC and revised by the Board for qualifying

additional waste streams and for post-treatment testing are adequate to ensure that each batch of

treated EAFDSR meets the delisting levels of condition 4.

The Board agrees with PDC that PDC should not be required by the adjusted standard to

conduct bench-scale treatability testing for any K061 waste streams from the steel mills already

represented in the full-scale, in-plant trials. However, the Board adds language providing that if

there is a “significant change” in the treatment process or chemicals pursuant to condition 3(b)

(discussed below), PDC must conduct the bench-scale treatability testing prior to operation of

full-scale treatment of any of those original waste streams.

Curing and Re-Treatment

For the reasons discussed below, the Board finds that that allowing for additional curing

time and re-treatment under the delisting, consistent with PDC’s RCRA Part B permit, is

necessary and appropriate. Curing time can be affected by a variety of factors, especially

ambient air temperature. Colder temperatures can retard reaction time. TSD at 3-17. “Curing”

in this instance refers to “the chemical reaction working to completion, which is itself additional

treatment.”

Id

. PDC maintains that disallowing additional curing time of treated waste would:

short-circuit the reaction process prematurely and unnecessarily

require the re-treatment of a batch that simply had not cured to the extent

necessary to achieve the proposed delisting levels. TSD at 3-17, 3-18.

PDC’s RCRA Part B permit recognizes additional curing time as treatment. The permit’s

Special Condition H (E)(15)(e)(iii)(1) states:

Treated waste which fails to meet the requirements shall receive additional

treatment (this may consist of additional curing time and/or reintroduction into

the treatment facility for further stabilization). Wastes which receive additional

treatment may only be disposed in the landfill after it has been demonstrated that

the residue meets the proper treatment standards. TSD at 3-18 (emphasis in

permit).

PDC’s RCRA Part B permit also limits the amount of time treated waste may be stored before

re-treatment. Specifically, PDC notes that the storage limit was increased from 15 to 60 days in

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63

the recent permit renewal, in recognition of the importance of allowing additional curing time.

At 60 days, the treated waste must be reprocessed with additional chemical reagents or disposed

of as RCRA hazardous waste. TSD at 3-18.

RMT explains that additional treatment through curing time is an especially appropriate

option when considering that PDC begins bench-scale treatment with “reagent proportions that

are known through experience to be at the lower end of the effective range.” TSD at 3-18. This

approach is designed to meet the applicable concentration-based treatment standards while both

(1) minimizing the volume and weight increase attributable to the chemicals and water and (2)

avoiding “over-treatment.”

Id

. Generally, chemical stabilization technologies:

involve chemicals that microencapsulate waste particles, as well as provide pH

buffering. The PDC technology stabilizes metals through a series of complex

chemical reactions while providing buffers to resist changes in pH upon exposure

to extraction fluids of varying pHs. This technology feature is particularly

important when both acidic and alkaline extraction fluids are to be used as they

were for the treatment demonstration completed for this Petition. The minimum

solubility of most metals treated by PDC occurs within the pH range of 8.5 to

11.0. Many metals that are regulated by LDR standards and the proposed

delisting levels are amphoteric, i.e., they exhibit increased solubility at both high

and low pHs (EPA, 1986). Examples of amphoteric metals that would be

regulated by the proposed delisting levels for the EAFDSR are chromium, lead,

and zinc. Because the solubility of these metals will increase both below and

above a known pH range, over-treatment, or “overkill” (EPA, 1993) is possible.

Treatment complexity is also increased as the number of regulated metals

increases. The proposed delisting levels for the EAFDSR would regulate 14

different metals, not all of which have overlapping solubility minima. As such,

simply adding an extra quantity of chemicals, or even selecting an average target

pH, will not consistently meet the proposed delisting levels and may even cause

over-treatment. Therefore, a designed and sophisticated approach is required for

the necessary balance to be achieved. TSD at 3-18, 3-19.

Because of these chemistry factors and variables, using reagent proportions known to be

at the “lower end of the effective range” and allowing the chemical reaction to work toward

completion helps avoid over-treatment:

Put simply, it is always possible to add additional chemicals when necessary, but

it is not possible to remove treatment chemicals once over-treatment has occurred.

Therefore, the treatment that occurs through additional curing time is a critical

component of the PDC treatment technology, one that can only be represented

and verified through re-samples during the period required for curing to approach

completion, and as limited by the IEPA-regulated storage time limit in the facility

RCRA Part B Permit. TSD at 3-19.

When analytical results following additional curing time do not demonstrate compliance

with the delisting levels before storage time expires, or the “trend in re-sample analytical results

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64

makes evident to PDC that reduced concentrations with additional curing time are unlikely,”

PDC would re-process the “failed” batch in the WSF: “The re-treatment recipe would be

determined based on the metals concentrations and final extraction pH of the most recent

resample.” TSD at 3-20.

Initial and Subsequent Verification Testing

PDC describes the adjusted standard as a “conditional exclusion requiring testing of each

batch prior to managing the treated waste as non-hazardous.” Pet. at 16. PDC defines a “batch”

as “the quantity of EAF dust treated during one calendar day.” Pet. at 16-17; TSD at 1-4. As

proposed then, until testing demonstrates that a given batch of treated K061 EAF dust (

i.e.

,

EAFDSR) meets the delisting levels of condition 4, PDC would have to manage that batch as

hazardous waste. Pet. at 4, 17; Br. at 80-81. PDC maintains that analyzing each treated batch

for all of the CoCs is “a virtually fail-safe system” and an “extremely rigorous quality control

measure that will verify the satisfactory control of all contributing process variables, including

weather conditions.” Pet. at 5; Resp. to HOO, Exh. A at 1. PDC maintains that this is to “ensure

that the qualitative nature of the EAFDSR disposed of by PDC will never exceed the approved

delisting levels.” Pet. at 5.

The Board finds this approach appropriate. USEPA explains that conditional exclusions

may be granted when:

the waste may exhibit future variability that may be of concern. Under a

conditional exclusion, we [USEPA] set up post-exclusion testing requirements

that the petitioner must meet prior to waste disposal. *** Only those batches that

meet the conditions provided in the final exclusion could be managed as non-

hazardous waste; the remainder must either be re-treated or managed as

hazardous. “EPA RCRA Delisting Program--Guidance Manual for the

Petitioner” at 7-8, USEPA Region 6 (Mar. 23, 2000).

The Board requires that PDC collect representative grab samples from each treated mixer load to

produce a daily composite “batch” sample of the EAF dust stabilized residue. Before disposal,

the daily composite sample must be analyzed for all CoCs. Only when an individual treated

batch meets the delisting levels is PDC authorized to manage that batch as non-hazardous waste.

Under the USEPA Guidance Manual, after the initial round of testing to establish the

final list of CoCs, “[a]ll subsequent samples should be analyzed for totals concentrations and by

the TCLP methodology for all constituents on the final COC list.” “EPA RCRA Delisting

Program--Guidance Manual for the Petitioner,” App. H, Att. 2, USEPA Region 6 (Mar. 23,

2000). PDC is only proposing TCLP analysis. Pet. at 15. The TCLP analysis produces results

from a leachate of the waste, and concentration is reported in mg/L for a liquid. The totals

analysis detects the total amount of the constituent in the sample, and concentration is reported in

mg/kg for a solid. DRAS produces delisting levels in both mg/L and mg/kg depending on the

limiting pathway — the pathway with the lowest acceptable exposure limit (

e.g.

, groundwater

ingestion versus soil ingestion).

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65

Although PDC’s proposed monitoring does not include totals analysis, neither does the

USEPA delisting of Heritage for 13 of the 14 metals monitored in the treated EAF dust waste.

54 Fed. Reg. 75905 (Dec. 5, 2002). As Tracy Meints Fox notes, USEPA imposed a delisting

level for total mercury in Heritage. PC 313 at 4. USEPA explained, however, that the Heritage

delisting requires totals analysis for mercury (mg/kg) because mercury was the majority

component in the aggregated hazard index:

The aggregated hazard index for this waste is estimated to be 0.965, which does

not exceed the EPA Region 5 Delisting Program’s target of 1.0. The majority of

this aggregate hazard index, 0.774, occurs as a result of migration of mercury to

surface water followed by ingestion of fish by humans. For this reason, a

delisting level for total mercury in the waste will also be imposed. 65 Fed. Reg.

75897, 75902 (Dec. 5, 2000).

The maximum observed mercury concentration in PDC’s EAFDSR contributes 0.16 to

the overall aggregate hazard index of 0.52. Resp. to HOO, Exh. A at 12, citing TSD, App. H.

The contribution of mercury here therefore does not make up the majority of the aggregate

hazard index as it did in the Heritage delisting. The hazard quotient of 0.16 for mercury was

calculated using DRAS provisional v.3 outputs provided by USEPA Region 5 to avoid errors in

the earlier DRAS v. 2.

Id.

The aggregate hazard of 0.52 is well below the maximum aggregate

hazard of 1.0.

Id.

Under these circumstances, the Board finds that totals analysis for mercury is

not necessary and that analysis by the TCLP methodology is sufficient.

The Board finds that if the TCLP test results show an exceedence of any delisting level

concentration, the treatment residue batch must be:

•

Cured further as the chemical reagents complete their reactions, followed by verification

composite sampling and analysis again;

•

Reprocessed (

i.e.

, re-treated) in the WSF, followed by verification composite sampling

and analysis again; or

•

Managed as a K061 hazardous waste at a properly permitted RCRA Subtitle C facility.

Pet. at 4-5, 14.

For the demonstration trial involving additional curing time (round 10) and re-treatment

(round 11), the TSD states that “it was not necessary to analyze for all COCs during these last

two rounds, just those that exceeded proposed delisting concentrations.” TSD at 4-4. PDC

originally proposed to limit the constituents analyzed after additional curing or re-treatment to

only those that exceeded the delisting level in the prior sampling round. Resp. to HOO, Exh. A

at 14.

As discussed above, however, the TSD explains that over-treatment is possible where the

solubility of amphoteric metals increases above a known pH range. TSD at 3-19. The TSD also

mentions that PDC conferred with the consultant who developed the new stabilization

technology to “establish the appropriate reagent recipe for re-treatment that would provide

sufficient additional treatment without over-treatment.” TSD at 6-3. Board staff inquired about

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66

how PDC would verify that over-treatment does not occur when a batch is re-treated. In

response, PDC states:

PDC proposed limiting the constituents analyzed after further treatment to only

those that exceeded the delisting level in the prior round because of the low

probability of overtreatment given the knowledge gained from the initial analysis,

i.e., once batch-specific constituent concentrations and extraction pH data are

known, optimizing reagent proportions for effective re-treatment is relatively

simple and yields a very high initial success rate. However, PDC would not

object to analyzing all 14 metals in each round of testing. Resp. to HOO, Exh. A

at 14;

see also

PC 33-1-2 (Baker & McKenzie, LLP suggesting that re-treated

EAFDSR be analyzed for all 14 metals).

To this end, PDC proposed that the following language be added to condition 3(c):

All verification analyses shall be conducted on a composite sample that

effectively represents the entire batch as did the initial sample, and include

analysis of all 14 constituents identified in condition 4.

Id

.

The Board adopts this approach but deletes the reference to “14” constituents as condition 4 now

also includes dioxins and furans.

Finally, as noted above, a number of public commenters express concern over the

perceived lack of “independent” testing in PDC’s demonstration analyses.

See

Postcard 1;

Postcard 2; Tr. at 78, 85; PC 222 at 1; PC 305; PC 86 at 1. PDC states that for the verification

testing under the adjusted standard, it will use “a testing laboratory with all required

certifications.” Br. at 39. PDC notes that it “does not own ‘its own testing laboratory,’” but does

“have an affiliate company that performs the required testing, namely, PDC Laboratories, Inc.”

Id

. PDC explains that PDC Laboratories, Inc. is a “commercial environmental laboratory and

provides analytical testing to more than 2,000 companies and governmental bodies, including the

State of Illinois.”

Id

. According to PDC, PDC Laboratories, Inc. is National Environmental

Laboratory Accreditation Program-accredited and “as such, routinely undergoes extensive

independent audits to ensure data integrity.”

Id

. PDC currently uses PDC Laboratories, Inc. to

perform verification testing on the delisted F006 treatment residues being shipped to Indian

Creek Landfill No. 2.

Id

.

As the Board described, the State of Illinois has laboratory accreditation standards.

Those standards, among other things, require NELAC compliance. 35 Ill. Adm. Code

186.110(a), 186.180(b)(3). The Board would expect all testing under the adjusted standard,

whether for bench-scale treatability, treatment modification, or verification testing, to be

performed by a laboratory accredited pursuant to IEPA’s standards at 35 Ill. Adm. Code 186.

All analyses must be performed according to USEPA SW-846 methodologies. Further, besides

requiring PDC to submit annually to IEPA the verification sampling data, the Board requires

PDC to compile and maintain on site for a minimum of three years all analytical data. These on-

site records must be furnished by PDC upon the request of, and made available for inspection by,

any employee or representative of the State of Illinois.

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67

Disposal of Delisted EAFDSR

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

.

PDC states that it intends to dispose of the delisted material at its affiliated Subtitle D

Indian Creek Landfill No. 2 in Tazewell County, Illinois or two other PDC Subtitle D landfills in

Illinois (Clinton Landfill in Clinton and Pike County Landfill in Baylis), but “primarily at Indian

Creek Landfill #2.” Br. at 4; Pet. at 3. However, PDC originally proposed as a condition of the

delisting that the EAFDSR be disposed of “in a lined landfill with leachate collection and all

necessary authorizations to receive the non-hazardous EAF dust stabilized residues.” Pet. at 14.

PDC further characterized such landfills as those that are “licensed, permitted, or otherwise

authorized to accept the delisted waste in accordance with all applicable RCRA Subtitle D

requirements.”

Id

. at 19. Further, the landfill must be located within the State of Illinois.

Id

.

Responding to the questioning of Board staff as to what types of landfills could be used

other than permitted landfills, PDC explained:

While it may be possible under federal rules for a state(s) to authorize landfills to

accept industrial process wastes other than by permit, it is not possible in Illinois

and PDC does not object to modifying the Petition accordingly. While the

narrative discussion of the proposed adjusted standard conditions includes the

subject language, proposed condition 2 itself effectively excludes non-permitted

landfills in its existing form. Resp. to HOO, Exh. A at 14-15.

To “better reflect Illinois regulatory requirements,” PDC suggested the Board could consider

revising the condition as follows:

The EAF dust stabilized residue shall be disposed of pursuant to the Board’s non-

hazardous landfill regulations found at 35 Ill. Adm. Code 810-815, and disposed

of in a lined landfill with leachate collection and all necessary authorizations

IEPA-issued permits

to receive the non-hazardous EAF dust stabilized residues.

Resp. to HOO, Exh. A at 15.

PDC’s final submission contains language that would permit PDC to dispose of delisted

EAFDSR at any “lined landfill with leachate collection” in Illinois that has “all necessary

permits issued by [IEPA] to receive the non-hazardous EAFDSR.” Br. at 78.

The Board appreciates PDC’s attempted clarifications. The Board finds, however, that

PDC’s reference to “all necessary IEPA-issued permits” or “all necessary permits issued by

[IEPA]” still begs the question of whether an IEPA permit is “necessary” for a given facility.

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68

PDC couples this language with a reference to Part 815, under which disposal in a permit-

exempt, on-site facility may be permissible. Such a disposal scenario, of course, is contrary to

PDC’s intent, as evidenced by PDC’s repeated representations that the EAFDSR would be

disposed of in a Subtitle D landfill (

i.e.

municipal solid waste landfill).

See

,

e.g.

, Br. at 2

(proposing that the treatment residue be “deemed a delisted waste subject to disposal in a RCRA

Subtitle D landfill”), 38 (“RCRA Subtitle D IEPA-permitted landfills in Illinois”).

The Board amends condition 2 accordingly. For EAFDSR to come within the scope of

the delisting, the treatment residue must be disposed of off-site in a Subtitle D landfill meeting

all of the requirements set forth in condition 2(c).

See

BFI Waste Systems, AS 08-5, slip op. at

44 (“the leachate will not be considered delisted unless disposed of in a waste water treatment

facility in Illinois with a pretreatment program approved by USEPA.”). The Board’s addition of

an explicit reference to “Subtitle D landfills” in the order is consistent with USEPA’s CSI

delisting, where USEPA stated:

Although the CSEAFD wastes covered by this petition are excluded from

regulation as listed hazardous wastes under Subtitle C upon today’s final

exclusion, this exclusion applies only where these wastes are disposed of in

Subtitle D landfills. 60 Fed. Reg. 31107, 31113 (June 13, 1995).

As noted, PDC proposes language for the adjusted standard requiring that the material be

disposed of in a “lined landfill with leachate collection.” Br. at 78. PDC’s TSD further states:

PDC intends to dispose of the EAFDSR in one of its affiliated Subtitle D landfills

located in Illinois, which landfill will have an IEPA-mandated groundwater

monitoring program. TSD at 7-1.

Consistent with PDC’s representations and USEPA’s Heritage delisting, the Board adds to the

adjusted standard conditions that the landfill must also have a groundwater monitoring system.

See

67 Fed. Reg. 1888, 1895 (“disposed of in a Subtitle D landfill which has groundwater

monitoring”). While groundwater monitoring is required of RCRA Subtitle D landfills in Illinois

(35 Ill. Adm. Code 811, 814), this Board amendment to the condition avoids any potential

ambiguity.

Change in Treatment Chemicals or Treatment Process

PDC states that its proposed adjusted standard language “allows conditioned flexibility

regarding the chemical technology employed.” Pet. at 18. As condition 3(b), PDC proposes

“procedures for qualifying any significant change in the chemical treatment regimen.”

Id

. PDC

represents that in pre-petition conversations, USEPA “generally consented to a procedure that

would allow for some flexibility” and IEPA suggested that PDC “formalize” the procedure in

adjusted standard language.

Id

.

PDC explains that its experience shows that over time, the availability of specific

chemicals from specific sources is subject to change, and “even like chemicals from different

sources can vary markedly in their specific chemical make-up.” Pet. at 18. PDC proposes a

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69

qualifying procedure that would allow it to change chemicals without “re-petitioning” the Board

as “technologies evolve and improve, and the availability of chemicals and sources inevitably

change.”

Id

. PDC argues that its qualifying procedure ensures that:

any change in chemicals from the technology employed in the in-plant trials will

result in a treatment regimen that is equally robust and undergo the testing

necessary to demonstrate that the EAFDSR will be non-hazardous with respect to

the original listing criteria.

Id

.

PDC elaborates that for purposes of condition 3(b), “significant change” would mean

“the utilization of a chemical treatment regimen containing different active ingredients.” Pet. at

18. By way of example, PDC states that:

purchasing the same chemical from a different source would not be a significant

change; nor would transitioning from one lime-based chemical to another.

However, changing from a lime-based chemical to a phosphate-based chemical,

for instance, would be a significant change and the proposed qualification

procedure would be required.

Id

. at 19.

Before implementing any “significant change in treatment chemicals” as part of the full-

scale treatment process, PDC proposes to undertake a multi-step review process, beginning with

the “evaluat[ion of] each new chemical or chemical treatment regimen for the presence of

potential constituents of concern (COC’s).” Br. at 79. This evaluation would be designed to

“identify any potential COC’s reasonably expected to be present at concentrations of concern” in

the stabilized residue resulting from the new chemical treatment regimen.

Id

. PDC asserts that

the chemicals it purchases are of documented chemical composition. PDC states that it would

evaluate each chemical for its potential to contribute to CoCs using Material Safety Data Sheets

(MSDS), product specification sheets, supplier process knowledge, and laboratory data provided

by the chemical supplier. Resp. to HOO, Exh. A at 3. Further, PDC states that if the absence of

CoCs cannot be verified by those means, PDC would arrange for laboratory analysis of a

representative sample for “any constituents reasonably expected to be present at a concentration

of concern” in the EAFDSR resulting from a new chemical treatment regimen.

Id.

PDC compares this initial evaluation step to existing regulations that allow generator

knowledge to be used in evaluating the presence of hazardous constituents in a decharacterized

hazardous waste. Resp. to HOO, Exh. A at 3, citing 35 Ill. Adm. Code 728.102. PDC’s RCRA

Part B permit also contains a similar condition allowing use of an MSDS in lieu of analytical

results to determine hazardous constituents in off-specification, unused, or discarded commercial

chemical products. Resp. to HOO, Exh. A at 3, Att. 3, Special Condition X(G)(6)(e)(5).

PDC would then “eliminate a constituent from further evaluation” based on the TSD

screening concentrations. Next, PDC would conduct further evaluations “which may include

running the then-approved version” of DRAS. Ultimately, PDC would proceed with the change

in chemicals if PDC’s evaluation “demonstrates that the treated EAF dust stabilized residue does

not exceed the target human health and environment risk factors upon which the approved

Petition is based.” Br. at 79-80.

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70

At least 15 days before adopting any significant change in the full-scale treatment

process, PDC proposes to “submit a report of the technology modification demonstration and

bench-scale treatability testing to the IEPA.” Br. at 80. PDC presumes that this condition would

not require IEPA review and approval of the demonstration. Resp. to HOO, Exh. A at 3. PDC

also proposes that the Board’s order set forth the following statement: “The Illinois Pollution

Control Board recognizes that insofar as the submittal contains non-disclosable information

regarding a specific proprietary chemical or chemical treatment regimen, PDC may redact such

information from its submittal to the IEPA.”

Rick Fox opposes PDC’s proposed language “to extend the scope of the delisting

whenever it decides to change the underlying chemistry of its treatment process.” PC 314 at 2.

Fox asks the Board to deny PDC “free license to vary its secret process with no justification

whatsoever just the bland assertion that things change over time.”

Id

.

The Board notes that in the Heritage and CSI delistings, USEPA addressed the prospect

of significant changes in the K061 treatment processes at issue. 67 Fed. Reg. 1888, 1893, 1895

(Jan. 15, 2002); 60 Fed. Reg. 31107, 31112-31114 (June 13, 1995). USEPA’s language on

“changes in operating conditions” in the 2002 Heritage delisting requires Heritage to provide

USEPA with written notification of any significant change to the treatment process or the

chemicals used in the treatment process. USEPA stated “[a] change either to the treatment

process or in the chemicals used is significant if it results in a change in composition of the

waste.” 67 Fed. Reg. at 1893. Heritage must handle wastes generated after the significant

change as hazardous until:

•

Heritage demonstrates that the waste continues to meet delisting levels;

•

Heritage demonstrates that no new hazardous constituents listed in Appendix VIII of Part

261 have been introduced; and

•

Heritage receives written approval from USEPA. 67 Fed. Reg. at 1895 (¶3).

The corresponding condition in the 1995 CSI delisting reads:

(4)

Changes in Operating Conditions:

After initiating subsequent testing as

described in Condition (1)(C), if CSI significantly changes the stabilization

process established under Condition (1) (e.g., use of new stabilization

reagents), CSI must notify the Agency in writing. After written approval by

EPA, CSI may handle CSEAFD wastes generated from the new process as

non-hazardous, if the wastes meet the delisting levels set in Condition (3). 60

Fed. Reg. at 31114.

USEPA elaborated on this condition:

CSI will require a new exclusion if the treatment process specified for any Super

Detox

TM

treatment facility is significantly altered beyond the changes in operating

conditions described in Condition (4). Accordingly, the facility would need to file

a new petition for a changed process. The facility must manage wastes generated

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71

from a changed process as hazardous until a new exclusion is granted. 60 Fed.

Reg. at 31113.

The Board finds that PDC’s proposed condition 3(b) is substantively different from the

conditions in USEPA’s Heritage and CSI delistings. A fundamental feature of USEPA’s

approach in both cases is that the company could not handle waste generated by the new

treatment process as non-hazardous unless and until the company received USEPA’s written

approval. PDC’s proposal, on the other hand, would allow the company to unilaterally amend

the delisting.

As PDC proposes, before adopting the significant change in the full-scale treatment

process, PDC would have to “submit a report” of its risk analysis to IEPA, but not for review and

approval. PDC itself would be left to determine whether PDC made the necessary

demonstration. Conceivably, PDC could arrive at CoCs and delisting levels not in condition 4.

Further, as is evident from this record, questioning from IEPA and Board staff has led PDC to

amend its proposed adjusted standard a number of times. Further, the Board’s order below

makes several amendments to PDC’s proposal, including adding a CoC, all based on this well-

developed record. In short, government scrutiny, aided by public input, has resulted in

meaningful changes to the proposed delisting.

The Board also finds that PDC’s concept of “significant change” is not consistent with

USEPA’s Heritage and CSI delistings. PDC would define “significant change” as “the

utilization of any new chemical or chemical treatment regimen containing active ingredients

different from those utilized in the full-scale, in-plant trials represented in the Petition.” Br. at

80. PDC therefore limits significant chemical changes to differing “active ingredients,” which

may not encompass new hazardous constituents. PDC also addresses only changes in treatment

chemicals, to the exclusion of changes in the treatment process. Of course, without a

“significant change,” as PDC defines it, PDC’s multi-step review process would never be

triggered.

The delisting issued today is based upon the demonstration PDC made in this record.

PDC has established that the treatment process and chemicals used in the full-scale, in-plant

trials are effective. That is the demonstration on which the Board held a public hearing and on

which the public commented. The Board appreciates PDC’s desire for flexibility in its

operations. Consistent with the RCRA Part B permit, condition 3(a) of the adjusted standard

allows PDC to add K061 waste streams after bench-scale treatability testing shows the material

can be treated to consistently meet the delisting levels of condition 4. The Board finds it

inappropriate, however, to allow a company to make, in effect, a new delisting demonstration,

largely in a vacuum. By USEPA delegation, the Board is the delisting authority in Illinois.

See

55 Fed. Reg. 7320 (Mar. 1, 1990). Moreover, the Board “will not grant any petition that would

render the Illinois RCRA program less stringent than if the decision were made by USEPA.” 35

Ill. Adm. Code 720.122(q).

For all of these reasons, the Board declines to adopt PDC’s proposed condition 3(b). The

Board instead adopts a substantially different condition 3(b), providing limited flexibility to PDC

without relinquishing the delisting determination to the company. As described more fully

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72

below, if a change to PDC’s treatment process or chemicals results in, for example, the

introduction of a new hazardous constituent to the resulting residue, PDC may seek to bring the

new treatment residue within this delisting’s scope by filing a petition with the Board for an

amendment to the adjusted standard. That petition for amendment would require public notice in

a newspaper of general circulation, allowing interested persons the opportunity to request a

public hearing.

The Board’s condition 3(b) is consistent with USEPA’s Heritage and CSI delistings. The

Heritage condition on changes in operating conditions reads:

(3)

Changes in Operating Conditions:

If Nucor significantly changes the

manufacturing process or chemicals used in the manufacturing process or

Heritage significantly changes the treatment process or the chemicals used in

the treatment process, Heritage or Nucor must notify the EPA of the changes

in writing. Heritage and Nucor must handle wastes generated after the

process change as hazardous until Heritage or Nucor has demonstrated that

the wastes continue to meet the delisting levels set forth in Paragraph (1) and

that no new hazardous constituents listed in Appendix VIII of Part 261 have

been introduced and Heritage and Nucor have received written approval from

EPA. 67 Fed. Reg. 1888, 1895 (Jan. 15, 2002).

The Board finds that any change by PDC in the treatment chemicals from those used in

the full-scale, in-plant trials is significant and necessitates analytical testing by PDC. As PDC

concedes, “even like chemicals from different sources can vary markedly in their specific

chemical make-up.” Pet. at 18. Specifically, the Board defines a “significant change” in the

treatment chemicals as a difference in the treatment chemicals from those used in the petition’s

full-scale, in-plant trials, including different chemicals and different ratios, dosages, or sources

of the same chemicals. The “significant change” provision, however, does not apply to using

different ratios or dosages of the same chemicals from the same sources when re-treating a batch

following non-compliance with a delisting level, unless the different ratios or dosages could

introduce a new hazardous constituent to the new treatment residue. The Board intends “ratios

or dosages” to include the proportions of reagent chemicals to each other and to the make-up

water and EAF dust. The Board further finds that any lessening by PDC of the mixing effort

from that used in the full-scale, in-plant trials is a significant change to the treatment process and

necessitates analytical testing by PDC. Specifically, the Board defines a “significant change” in

the treatment process as mixing effort less than that used in the Petition’s full-scale, in-plant

trials.

Before implementing any significant change in the full-scale treatment process or the

chemicals used in the full-scale treatment process, PDC must have representative samples of the

new treatment residue laboratory-tested for the following:

•

Compliance with the delisting levels of condition 4;

•

The constituents of 35 Ill. Adm. Code 724.Appendix I, less pesticides and herbicides;

•

Oil and grease, pH, total cyanide, total sulfide; and

•

The RCRA toxicity characteristic constituents of 35 Ill. Adm. Code 721.124.

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73

PDC seeks condition 3(b) so that the delisting would cover waste residues resulting from

treatment with chemicals different from those on which the delisting is based. Requiring

analytical testing consistent with 35 Ill. Adm. Code 720.122(h) is therefore warranted. PDC

acknowledges that “under current operations PDC routinely performs some bench-scale testing

prior to implementing even minor changes to ensure that the efficacy of the treatment is not

jeopardized, which could result in expensive and unnecessary re-treatment.” Pet. at 19. Further,

the specific analytical testing required is consistent with PDC’s proposal: “the universe of

potential COC’s that must be considered is the same as that considered for the Petition.” Br. at

79;

see also

TSD. The Board will require PDC to submit the test results to IEPA.

If the test results show (1) no exceedence of any delisting level of condition 4 and (2) no

detection of any “new hazardous constituent,” then the “new treatment residue” would come

within the delisting, subject to bench-scale treatability compliance. In that instance, PDC would

not have to “re-petition” the Board. This approach provides not only a measure of operational

flexibility, but also laboratory results confirming that the change in chemicals or process presents

no regulatory concern. The Board defines a “new hazardous constituent” as a chemical listed in

35 Ill. Adm. Code 724.Appendix I that was (1) not detected as part of the petition or (2) detected

as part of the petition and excluded from the delisting levels, but which is detected during this

“significant change” testing (described above) at a concentration exceeding the highest

concentration detected as part of the petition. “New treatment residue” is defined as the waste

resulting from treatment after a significant change in the treatment process or chemicals.

However, if the testing reveals that after the significant change in the treatment chemicals

or process, there is (1) an exceedence of one or more delisting levels of condition 4 or (2) a

detection of one or more new hazardous constituents, then PDC would have to file a petition

with the Board if it wishes to bring the new treatment residue within the scope of the delisting.

PDC would have to handle any wastes generated using the altered chemicals or process (

i.e.

,

“new treatment residue”) as hazardous unless and until the Board issues a written decision

granting the petition under 35 Ill. Adm. Code 720.122. If the petition to amend were granted by

the Board, any amendments to the CoCs and associated delisting levels would appear in a

modified condition 4.

Through modified condition 3(a), bench-scale treatability testing would be required,

i.e.

,

showing that the significantly-changed chemicals or process can treat

all

K061 waste streams to

delisting levels. Finally, the Board finds PDC’s suggested language about redaction

unnecessary. The Board’s condition 3(b) requires the submission of analytical data to IEPA, not

the delisting demonstration PDC had proposed. Nor has PDC raised confidentiality concerns

over having to submit bench-scale treatability reports to IEPA under condition 3(a).

Delisting is Specific to PDC’s Peoria Facility

PDC’s proposal refers simply to an adjusted standard grant to PDC for K061 treatment

using the technology described in the petition. There is no mention of the delisting being limited

to the operation of that technology at the PDC facility located at 4349 W. Southport Road in

Peoria, Peoria County.

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74

As stated in Section 720.122(b), “[t]his exclusion may only be granted for a particular

generating, storage, treatment, or disposal facility.” 35 Ill. Adm. Code 720.122(b);

see also

35

Ill. Adm. Code 720.122(a) (“seeking to exclude a waste from a particular generating facility”).

Section 720.122(k) similarly provides that “[a]n exclusion will only apply to the waste generated

at the individual facility covered by the demonstration and will not apply to waste from any other

facility.” 35 Ill. Adm. Code 720.122(k). USEPA has interpreted the “particular facility”

language in the corresponding federal regulations. As discussed above, in the federal CSI

delisting, USEPA granted a “multiple-site delisting” for chemically stabilized electric arc

furnace dust (CSEAFD) generated by CSI using its modified Super Detox

TM

process at the

existing Sterling, Illinois facility of Northwestern Steel and future facilities to be constructed. 60

Fed. Reg. 31107, 31108 (June 13, 1995). USEPA stated:

The statute and regulations do not limit the availability of delisting decisions to

wastes generated at a single facility. *** The term “particular facility”' refers to

a specific qualifying facility and there is no bar to a delisting covering more than

one particular, and qualifying, facility. The language limits delistings to an

identified and qualifying facility or facilities; it does not limit them to a “single”

facility. The intent of this language is to indicate that, because delistings are

granted only to specific qualifying facilities, a facility may not manage its waste

as non-hazardous based solely on a delisting granted to another facility for the

same listed waste. 60 Fed. Reg. 31107, 31110 (June 13, 1995).

However, PDC has not suggested in this record that it seeks to use its new stabilization

technology elsewhere or that PDC expects the delisting to apply anywhere but at its Southport

Road facility in Peoria. The Board clarifies the adjusted standard by limiting it to that facility, as

was plainly intended.

Delisting’s Duration and Volume Cap

PDC seeks a multi-year delisting for as long as PDC maintains a valid RCRA Part B

permit for the WSF. Pet. at 4. PDC proposed language has an effective date for the delisting,

but fails to mention the duration of the adjusted standard. The Board addresses this omission in

condition 1. Further, consistent with Board precedent, the Board has specified that the date of

this order, January 8, 2009, is the effective date of the delisting.

See

,

e.g.

, Keystone Steel and

Wire, AS 91-1, slip op. at 18 (Feb. 6, 1992).

PDC estimates the WSF will receive an average of 74,000 TPY of EAF dust, with a

maximum of 95,000 TPY. PDC further estimates the maximum amount of EAFDSR generated

by the stabilization process will be 142,000 TPY (95,000 cubic yards per year). The delisting

has an annual waste disposal volume cap of 95,000 cubic yards, as PDC proposes.

See

67 Fed.

Reg. 1888, 1893, 1895 (Jan. 15, 2002) (annual limit of 30,000 cubic yards of treated waste; “Any

treated K061 in excess of 30,000 yds is not delisted.”).

K061 Hazardous Waste Until Delisting Levels Met

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75

The Board adds language to make explicit in the order PDC’s obligation to handle

treatment residue as K061 RCRA listed hazardous waste unless and until it meets the delisting

levels of condition 4 after testing pursuant to condition 3. This addition is consistent with

USEPA’s CSI delisting, which provides:

CSI must store as hazardous all CSEAFD generated until verification testing as

specified in Conditions (1)(A) and (1)(C), as appropriate, is completed and valid

analyses demonstrate that Condition (3) [delisting levels] is satisfied. If the levels

of constituents measured in the samples of CSEAFD do not exceed the levels set

forth in Condition (3), then the CSEAFD is non-hazardous and may be disposed

of in Subtitle D landfills. 60 Fed. Reg. 31107, 31114 (June 13, 1995);

see also

Peoria Disposal Co., AS 91-3, slip op. at 9 (Mar. 11, 1993) (“The adjusted

standard granted requires PDC to manage all treated F006 batches as RCRA

hazardous waste until testing demonstrates that each batch meets the delisting

criteria.”).

Submittals and Recordkeeping

USEPA advises its Regions to consider:

including appropriate mechanisms in conditional delistings that would help

ensure that the waste was being managed in accordance with the conditions. For

example, the Regions may consider adding a condition that the generator keep

records, such as those they keep for business purposes, as to where they sent the

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

.

In response to Board staff questioning, PDC states that it would not object to a condition

in the adjusted standard requiring the company to notify IEPA of each disposal facility to which

EAFDSR would be shipped. PDC clarifies that the condition should not be construed as

requiring IEPA to review and pre-approve the receiving facilities. Resp. to HOO, Exh. 1 at 2.

PDC proposes the following language:

PDC, at least 15 calendar days before transporting an initial load of delisted

EAFDSR to a given disposal facility, shall provide the Illinois Environmental

Protection Agency (IEPA) with a one-time, written notification identifying that

disposal facility.

Id.

The Board includes PDC’s proposed condition in the final order.

Responding to the questioning of Board staff, PDC indicates that it would also not object

to an adjusted standard condition requiring PDC to submit annually to IEPA the data collected

pursuant to proposed condition 3(c). Resp. to HOO, Exh. A at 4. Condition 3(c) requires initial

verification analytical testing of daily composite samples of the EAFDSR and may entail further

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76

verification analytical testing. PDC estimates the data would fill a minimum of two banker’s

boxes per year.

Id

. PDC suggests the following addition to proposed condition 3(c):

PDC shall submit annually to the IEPA the data (and/or subset or summary

thereof to which the IEPA agrees) collected pursuant to this condition.

Id.

USEPA imposed a similar condition in the Heritage delisting, which applied to verification

testing as well as testing required by other conditions of the delisting.

See

67 Fed. Reg. 1888,

1895 (Jan. 15, 2002) (¶B(4)). The Board includes PDC’s proposed addition with minor

modifications.

For consistency with Board and USEPA delistings, the Board also adds familiar

provisions to the data submittal certification of condition 5.

See

,

e.g.

, BFI Waste Systems, AS

08-5, slip op. at 43, 46; 35 Ill. Adm. Code 721.Appendix I, Table B (CSI Horsham, Pennsylvania

(Sterling, Illinois operations)).

“Reopener” Language

The Baker & McKenzie law firm proposes in public comment that the Board’s delisting

order, “to be consistent with delistings granted by USEPA,” should contain “reopener language

similar to that found in the Heritage delisting for K06l (40 CFR 261 Appendix IX Table 2).” PC

33 at 4;

see also

PC 314 at 3 (Rick Fox). For context, the Board sets forth the reopener provision

from the Heritage delisting:

(5)

Reopener Language

—(A) If, anytime after disposal of the delisted waste,

Heritage or Nucor possesses or is otherwise made aware of any data (including

but not limited to leachate data or groundwater monitoring data) relevant to the

delisted waste indicating that any constituent identified in Paragraph (1) is at a

level in the leachate higher than the delisting level established in Paragraph (1), or

is at a level in the groundwater higher than the maximum allowable point of

exposure concentration predicted by the CMTP model, then Heritage or Nucor

must report such data, in writing, to the Regional Administrator within 10 days of

first possessing or being made aware of that data.

(B) Based on the information described in paragraph (5)(A) and any other

information received from any source, the Regional Administrator will make a

preliminary determination as to whether the reported information requires Agency

action to protect human health or the environment. Further action may include

suspending, or revoking the exclusion, or other appropriate response necessary

to protect human health and the environment.

(C) If the Regional Administrator determines that the reported information does

require Agency action, the Regional Administrator will notify Heritage and Nucor

in writing of the actions the Regional Administrator believes are necessary to

protect human health and the environment. The notice shall include a statement

of the proposed action and a statement providing Heritage and Nucor with an

opportunity to present information as to why the proposed Agency action is not

necessary or to suggest an alternative action. Heritage and Nucor shall have 30

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77

days from the date of the Regional Administrator’s notice to present the

information.

(D) If after 30 days Heritage or Nucor presents no further information, the

Regional Administrator will issue a final written determination describing the

Agency actions that are necessary to protect human health or the environment.

Any required action described in the Regional Administrator’s determination

shall become effective immediately, unless the Regional Administrator provides

otherwise. 67 Fed. Reg. at 1888, 1895-96 (Jan. 15, 2002).

PDC counters that the suggested reopener language is “without purpose for any waste

delisted in Illinois and disposed in an IEPA-permitted RCRA Subtitle D landfill.” Br. at 55.

PDC refers to Illinois requirements for leachate and groundwater modeling, monitoring, and

reporting, which:

are designed to ensure that the overall waste disposal operations at the landfills

remain protective of human health and the environment. Therefore, the impact on

leachate and groundwater quality of the

entire

landfill facility, including

all

managed wastes and constituents is monitored, not merely a subset of each as

would be required by the subject reopener language. Br. at 55-56.

PDC further asserts that with some of the Heritage delisting levels set at or above the

hazardous characteristic level or the corresponding LDRs, USEPA “may have deemed waste-

specific vigilance necessary.” Br. at 57. PDC states that its proposed delisting levels are “well

below the toxicity characteristic levels” and nine of PDC’s proposed delisting levels are more

stringent than those set by USEPA in Heritage. PDC adds that Heritage is not required to test

every daily batch, as PDC has proposed.

Id

.

The Board agrees with PDC that a reopener provision is unnecessary here to ensure

protection of human health and the environment. USEPA explained that the reopener provision

in a delisting decision is designed to give USEPA:

a mechanism to review the delisting when additional data become available

indicating the initial delisting decision was inappropriate or wrong. This is

particularly important if the additional data shows that the delisted waste is not

behaving in the disposal site as was predicted by the delisting risk assessment

model. “National Policy for Hazardous Waste Delistings” at 3, Memorandum

from Elizabeth A. Cotsworth, Acting Director, Office of Solid Waste, to Regional

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

USEPA recommends a model reopener provision or similar language, as used in Heritage,

“unless there are clear rationales not to.”

Id

. The provision would provide a means for USEPA

to “review and act expeditiously on information that a previously granted delisting may be

causing a threat to human health or the environment that was unknown at the time the Agency

acted initially.”

Id

. The reopener provides for the ability to “reopen, revoke, or otherwise

suspend the delisting in a timely manner.”

Id

.

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78

The Board finds that Illinois’ comprehensive environmental regulations, supplemented

by corrective action and injunctive authorities under the Act, provide the ability to promptly

detect and remedy problems of the sort the reopener is designed to address.

See

,

e.g.

, 415 ILCS

5/4(q), 4(s), 42(e), 43(a) (2006); 35 Ill. Adm. Code 811;

see also

Peoria Disposal Co., AS 91-3,

slip op. at 10-11 (Mar. 11, 1993) (“[T]he Agency or PDC can petition the Board for modification

of the adjusted standard if future information indicates that this is necessary.”). In PDC’s case,

the Board has also tightened the landfill disposal condition, the bench-scale treatability

condition, and the technology modification condition, all as described above.

The Board further finds that Illinois’ system of environmental governance does not lend

itself to the reopener language that Baker & McKenzie proposes for the Board’s order.

Generally, for federal environmental programs delegated to the State of Illinois, like RCRA,

USEPA’s duties are divided between IEPA and the Board. IEPA is responsible for permitting,

site inspections, and enforcement referral. The Board functions in a quasi-legislative role,

adopting regulatory standards, and in a quasi-adjudicative role, hearing permit appeals, variance-

type petitions, and enforcement complaints. Once the Board takes final action in an adjudicatory

case, such as an adjusted standard proceeding, the Board does not retain jurisdiction over the

case. Just as the Board cannot conduct site inspections or initiate enforcement, IEPA cannot

render delisting decisions or, through unilateral action, modify, suspend, or revoke the Board’s

delisting order.

Section 27(a) of the Act

PFATW and HOI Sierra Club filed a joint public comment opposing PDC’s delisting

petition. PFATW and HOI Sierra Club state that after failed siting and permit appeals, PDC is

now “attempting yet again to extend the life of its hazardous waste facility on the doorstep of

Peoria.” PC 301 at 2;

see also

PC 10 (Van Winkle); Tr. at 71 and PC 13 (Rudy Habben, Vice

Chairman, HOI Sierra Club); PC 23 at 1 (Edwards); PC 300 at 3-4 (Stephen Lester); Postcard 1

(“The delisting is a back door expansion of the landfill, an expansion both Peoria County and the

IPCB have already denied.”). PFATW and HOI Sierra Club argue that the proposed adjusted

standard is inconsistent with the “suitability of location factors” contained in Section 27(a) of the

Act (415 ILCS 5/27(a) (2006)). PC 301 at 2;

see also

Tr. at 27 (David Wentworth); Postcard 2.

According to PFATW and HOI Sierra Club, the PDC facility is “located adjacent to the

only regulated recharge area in Illinois” and has 53,190 persons living within three miles of it.

PC 301 at 1. PFATW and HOI Sierra Club state that the Board must “take into account” the

factors of Section 27(a) of the Act. This means, the two groups continue, that the Board must

“

remember, realize

” and “

appreciate

” the factual record and Board findings regarding the

facility’s location and operation in the three recent cases

17

involving PDC.

Id

. at 4, quoting

Granite City Div. of Nat. Steel Co. v. PCB

, 155 Ill. 2d 149, 613 N.E.2d 719, 733-34 (1993)

(emphasis by PFATW and HOI Sierra Club).

PFATW and HOI Sierra Club maintain that PDC has brought this delisting petition “in

the midst of a perfect storm of recent evidence and findings related to the identical site.” PC 301

17

Board dockets PCB 06-184, PCB 08-25, PCB 08-42.

See

footnotes 5 and 6.

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79

at 5. The groups argue that several Section 27(a) factors are “equivalent to several

corresponding local siting review factors” of Section 39.2(a) of the Act (415 ILCS 5/39.2(a)

(2006)):

Section 27(a) requires the Petitioner to justify its proposed adjusted standard

consistent with “the existing physical conditions, the

character of the area

involved, including the character of the

surrounding

land uses, zoning

classifications . . .” 415 ILCS 5/27(a)(emphasis added). Section 39.2(a) requires

the petitioner to demonstrate that the proposed facility “is so designed,

located

and proposed to be

operated

that the public health, safety and welfare will be

protected,” and “is

located

so as to minimize incompatibility with the

character

of the surrounding area

and to minimize the effect of the value of surrounding

property.” 415 ILCS 5/39.2(a)(ii) and (iii)(emphasis added). Both Sections 27(a)

and 39.2(a) require the appropriate governing body, the Peoria County Board and

this Board, respectively, to determine whether the petitioner produced sufficient

evidence to satisfy these nearly identical criterions. PC 301 at 5 (emphasis by

PFATW and HOI Sierra Club).

PFATW and HOI Sierra Club believe that because the Board in the siting appeal affirmed the

Peoria County Board’s findings that “the site was not so located as to be protective of the public

health, and was incompatible with the surrounding area,” the delisting petition is inconsistent

with Section 27(a). PC 301 at 5-6.

Further, according to PFATW and HOI Sierra Club, PDC “failed to present any

evidence” about how its operations under an adjusted standard “will affect the existing physical

conditions and surrounding area of the facility.” PC 301 at 6. The groups express concern about

containers of EAFDSR being stored in the PDC Landfill No. 1 area, the potential for fugitive

dust emissions when EAFDSR is removed from those containers for disposal, and increased

truck traffic.

Id

. at 6, 9;

see also

Tr. at 62 (Offutt); Tr. at 103, PC 14 (Edwards). PFATW and

HOI Sierra Club argue that these activities “will directly and negatively impact the location and

the surrounding areas.” PC 301 at 6.

The Board notes initially that whatever similarities there may be between certain Section

27(a) factors and Section 39.2(a) criteria, the Board was sitting in a reviewing posture in the

siting appeal PCB 06-184. That is not the case with this delisting. The Board in the siting

appeal was not the trier of fact and did not determine that PDC’s expansion proposal was

unprotective of public health or incompatible with the character of the surrounding area, but

rather that the Peoria County Board’s determinations on those contested criteria were not

contrary to the “manifest weight of the evidence.” Peoria Disposal Co. v. IPCB & County of

Peoria, 896 N.E.2d 460, 324 Ill. Dec. 674, 2008 Ill. App. LEXIS 999, *43 (3rd Dist., Oct. 7,

2008) (“The established standard is for the PCB to review the local siting authority’s decision on

the statutory criteria to determine if that decision is against the manifest weight of the

evidence.”).

18

Under that deferential standard of review, the Board may not reweigh the

18

As described in footnote 5, PDC has filed a petition for leave to appeal with the Illinois

Supreme Court.

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80

evidence on the siting criteria to substitute its judgment for that of the local siting authority.

See

Fairview Area Citizens Taskforce v. PCB, 198 Ill. App. 3d 541, 550, 555 N.E.2d 1178, 1184 (3d

Dist. 1990); Waste Management of Illinois, Inc. v. PCB, 187 Ill. App. 3d 79, 81-82, 543 N.E.2d

505, 507 (2nd Dist. 1989); Tate v. PCB, 188 Ill. App. 3d 994, 1022, 544 N.E.2d 1176, 1195 (4th

Dist. 1989). Instead, the Board must affirm the local siting authority’s determination unless “the

opposite conclusion is clearly evident, plain or indisputable.” Land and Lakes Co. v. PCB, 319

Ill. App. 3d 41, 53, 743 N.E.2d 188, 197 (3rd Dist. 2000). Moreover, the proposed facility in the

PCB 06-184 siting appeal was a vertical and horizontal expansion of the landfill. No such

expansion is at issue here.

Section 28.1 of the Act addresses adjusted standards and refers to Section 27(a) of the

Act, which states in part:

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) (emphasis added).

PFATW and HOI Sierra Club argue that PDC has not provided sufficient evidence to

satisfy the Section 27(a) factors. By its terms, however, Section 27(a) does not state a burden of

proof or an evidentiary standard that must be met. Rather, Section 27(a) sets forth factors for the

Board

to “take into account.” 415 ILCS 5/27(a) (2006). This construction of Section 27(a) was

articulated by the Illinois Supreme Court some 15 years ago:

Generally, the phrase “‘take into account’” means “‘allow for, make allowance

for, weigh carefully, consider, take into consideration, bear in mind, remember,

realize, appreciate, have in one’s mind.’ [citation omitted]” [citation omitted]

Contrary to petitioners’ contentions, under the plain meaning of the statutory

language, the Board is only required to “consider” or “weigh carefully” the

technical feasibility and economic reasonableness of compliance with proposed

regulations in the rulemaking process.

***

In light of the above, we conclude that section 27(a) does not impose specific

evidentiary requirements on the Board, thereby limiting its authority to

promulgate only regulations that it has determined to be technically feasible and

economically reasonable. Rather, section 27(a) requires only that the Board

consider or take into account the factors set forth therein. Granite City Div. of

Nat. Steel Co. v. PCB, 155 Ill.2d 149, 181, 183, 613 N.E.2d 719, 733-34 (1993).

In turn, Section 28.1(a) of the Act, which references Section 27(a), specifically states:

“After adopting a regulation of general applicability, the Board may grant, in a subsequent

adjudicatory determination, an adjusted standard for persons who can justify such an adjustment

consistent with subsection (a) of Section 27 of this Act.” 415 ILCS 5/28.1(a) (2006). Section

28.1(a) accordingly provides that the Board may grant, consistent with Section 27(a), an adjusted

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81

standard “for persons who can justify such an adjustment.” 415 ILCS 5/28.1(a) (2006). The

Board therefore must consider the record of the adjusted standard proceeding in light of the

Section 27(a) factors, but there is no threshold of evidence that the adjusted standard petitioner

must meet with respect to those factors.

See

Krohe v. City of Bloomington, 204 Ill. 2d 392, 395,

789 N.E.2d 1211, 1212 (2003) (“The best indication of legislative intent is the statutory

language, given its plain and ordinary meaning.”). As noted above, the Board, in accordance

with Section 28.1(b) (415 ILCS 5/28.1(b) (2006)), “specif[ied] the level of justification required

of a petitioner” for hazardous waste delistings in Section 720.122 of the Board’s regulations (35

Ill. Adm. Code 720.122).

The Board has carefully considered the information in this record in view of the Section

27(a) factors, as required by Section 28.1(a), and finds that the delisting may be granted

consistent with those factors.

See

Shell Oil Co. v. IPCB, 37 Ill. App. 3d 264, 274, 346 N.E.2d

212, 221 (5th Dist. 1976) (“The requirement of section 27 is a flexible one and of necessity

requires that a great deal of discretion be exercised by the Board.”).

Many commenters express concern over protecting the San Koty and Mahomet aquifers,

which are “the source of drinking water and household water for all of Central Illinois.” Tr. at

120, PC 16 at 5 (Rosson);

see also

,

e.g.

, PC 88 (William Parr); Postcard 1; Postcard 2; PC 3

(Blumenshine); Tr. at 62 and PC 20 at 1 (Offutt); Tr. at 99-100 (Susan Gerard); PC 23 at 2, PC

323 (Edwards); PC 87 (Phyllis Pryde); PC 288 at 2 (Vern and Rosemary Guthrie); PC 302 at 4

(Dr. deFur); PC 312 at 9 (Norris, PG); Tr. at 77 (Bucklar).

These concerns stem from the delisting’s effect on Subtitle D landfills receiving the

material; prolonging the life of PDC No. 1 Landfill; and storing treated EAFDSR within the

PDC No. 1 Landfill boundaries. For example, Offutt worries about “repeated compaction and

wear and tear to the [PDC No. 1 Landfill] landfill cells of driving these heavy machines and

heavy loads back and forth over them on a daily basis.” Tr. at 62-63; PC 20 at 1; PC 315 at 2.

She believes the liner system in cell C-1 has already been compromised and is concerned “about

the amount of weight that can be placed over this type of waste.” Tr. at 63; PC 20 at 1; PC 315

at 3. Tracy Meints Fox asserts that PDC’s proposed curing operations “atop older parts of the

PDC #1 facility could potentially damage the liner/leachate collection systems safeguarding the

San Koty aquifer.” PC 313 at 2. Dennis Ford expresses concern over the potential impacts of

disposing EAFDSR in Indian Creek Landfill on Indian Creek and the Mackinaw River, which

flows into the Illinois River. Tr. at 57-58.

PDC responds that no “IEPA-permitted municipal solid waste landfill in Illinois could

receive and maintain an IEPA permit if it were not fully protective of human health and the

environment, including any underlying aquifer.” Br. at 25. PDC provides the groundwater

monitoring information for Indian Creek Landfill No. 2 (TSD, App. E) to demonstrate that it has

not impacted groundwater beneath the facility.

Id

. PDC adds that its facility groundwater

monitoring program, which monitors the WSF as well as the landfill units, remains in a detection

monitoring program due to the “absence of statistically significant increases attributable to the

facility operating units.” Br. at 53.

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82

As for the impact on PDC’s No. 1 Landfill from moving and storing heavy loads

associated with the waste treatment operation, PDC points out that its container storage is

regulated by PDC’s RCRA Part B permit. PDC assures the public that “the proposed delisting is

not expected to increase the amount of storage or the normal operations of the WSF relating to

storage in any significant way,” adding that “[t]he facility roads and landfill liner system were

designed to withstand all loading from traffic and container storage.” Br. at 45. Under the

proposed adjusted standard, PDC’s total annual waste disposal volume of EAFDSR is capped at

95,000 cubic yards, which will limit truck traffic. Br. at 53. PDC states that it:

does not anticipate any significant increase in the number of shipments of EAF

dust received at the WSF if the proposed Adjusted Standard is granted. In the

event that there is an increase in shipments to the WSF, such increase will be

nominal and unrelated to the delisting.

Id

.

As to Offutt’s assertion that the liner system in one of the PDC No. 1 Landfill cells may have

already been compromised, PDC states that the assertion is not correct and provides information

on the facility’s lack of groundwater impact. Br. at 70.

The Board notes that PDC has managed K061 EAF dust treatment residue from the

existing chemical treatment regimen for more than 19 years at the PDC No. 1 Landfill. Based on

review of groundwater monitoring data, IEPA has stated: “Groundwater parameters monitored

in the uppermost aquifer below the facility indicate that, at the present time, no groundwater

impacts have occurred.” TSD at 2-4. Today’s order requires PDC to dispose EAFDSR only in a

permitted Subtitle D landfill that complies with the Board’s landfill standards set forth at 35 Ill.

Adm. Code 810 through 814. These standards specify stringent design, performance, and

operation standards to protect against groundwater and surface water contamination, including

composite liners, leachate collection systems, groundwater monitoring, and runoff and run-on

controls. The Board’s Subtitle D regulations also specify detailed design and operational

requirements that address maintaining the integrity of the landfill, including any stresses caused

by operation of heavy equipment.

Similar concerns arose in USEPA’s Heritage

delisting:

Comment:

An independent engineering expert has warned that the massive

weight of stabilized K061 on the liner could produce hundreds of high pressure

points which will burst and result in leakage of the liner . . . .

Response:

Currently a liner is the best available technology for landfills,

regardless of whether it is a hazardous waste landfill (Subtitle C) or a solid waste

landfill (Subtitle D). However, the model used to assess the risk of a delisted

waste assumes that no liner is present. 67 Fed. Reg. 1888, 1894 (Jan. 15, 2002).

Such is the case with PDC’s modeling here. Further, requirements pertaining to the logistics of

the waste treatment operation in terms of storage and movement of heavy loads are contemplated

in the landfill design and the provisions of PDC’s RCRA Part B permit.

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83

A number of commenters express concern over potential air emissions of contaminants

during the proposed additional curing time (volatilization) and loading operations at PDC’s

facility in Peoria. Tr. at 116-117, PC 16 at 3 (Rosson); PC 302 at 1, 4 (Dr. deFur); PC 20 at 1,

PC 315 at 1-2 (Offutt); PC 23, PC 307 (Edwards). Rosson refers to a middle school one-quarter

of a mile away and approximately 52,000 people living within a 3-mile radius, adding that she is

unaware of any air monitoring being done outside the baghouse facility where treatment occurs.

Tr. at 117, PC 16 at 3.

PDC responds that metals such as iron, zinc, and lead would require extremely high

temperatures to vaporize. Br. at 38. PDC also refers to its IEPA-issued air emission control

permit for the WSF and information “demonstrating that PDC’s actual emissions were well

below” those permit limits for particulate matter and volatile organic materials.

Id

. at 70.

The Board notes that in USEPA’s CSI delisting, one commenter raised the issue of

airborne emissions of stabilized EAF dust if it were to deteriorate over time once disposed.

USEPA responded by stating that:

[US]EPA also conservatively assumed that the total constituents in the waste

would be readily available for release into air (ignoring that they are contained

in the solidified waste matrix). Therefore, this evaluation also addressed the

potential deterioration and airborne transmission of the waste. 60 Fed. Reg.

31107, 31111 (June 13, 1995).

DRAS models the fate and transport of EAFDSR via several exposure pathways, including air,

and then bases the delisting level on the most sensitive pathway. For PDC’s petition, DRAS did

not identify inhalation (air) as the most sensitive pathway for any of the constituents of concern.

Besides air emissions at PDC’s WSF being subject to PDC’s air emissions control permit, the

Act prohibits air pollution (415 ILCS 5/9(a) (2006)) and the Board’s RCRA regulations impose

extensive air emission control requirements on hazardous waste treatment, storage, and disposal

facilities (35 Ill. Adm. Code 724, 725). The Board further notes that the water in PDC’s new

treatment process is expected to “eliminate the potential for fugitive dust emissions when [the

EAFDSR is] offloaded at the active landfill face.” TSD at 3-16.

The Board has taken into account the technical feasibility of treating the EAF dust with

PDC’s new proprietary stabilization technology, as described in detail above. The Board has

also weighed the economic reasonableness of PDC’s treatment proposal. PDC currently

disposes of the EAF dust treatment residue as hazardous waste in PDC No. 1 Landfill, the

company’s Subtitle C landfill. Pet. at 2. That landfill is projected to reach capacity in 2009.

Id

.

The next nearest Subtitle C hazardous waste landfill is approximately 220 miles away in

Roachdale, Indiana.

Id

. PDC emphasizes that transporting K061 treatment residues that

distance “unnecessarily consumes a substantial amount of diesel fuel contributing to air

pollution.” TSD at 1-4. Delisting would save PDC an estimated $12.5 million per year that

PDC would otherwise incur in off-site hazardous waste disposal and transportation fees.

Id

.

According to PDC, the delisting will enable the company to continue providing “a cost-

effective method of treating EAF dust for steel mills in the Midwest, particularly ones in

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Illinois.” Pet. at 3. PDC asserts that many of its customers, Midwestern steel mills that generate

the EAF dust, have no feasible or economically viable alternative.

Id

. at 12-13. The petition

notes that these steel manufacturers are vital to the economy and subject to foreign competition

that does not necessarily face as large a cost burden for environmental regulatory compliance.

TSD at 1-4, 1-5.

PDC maintains that post-treatment transportation and disposal costs are so much higher if

the delisting is not granted that “the viability of continued operations is questionable.” Pet. at

12. The estimated difference in costs for hazardous waste versus non-hazardous waste hauling

and disposal is $112.90 per ton or $12,531,900 per year, assuming 111,000 TPY of EAFDSR

shipped. The costs differential, according to PDC, would be:

an unbearable hardship for PDC that would result in the loss of most of its K061

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

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

generating customers in the Midwest, many of which . . . have no feasible or

economically viable alternative.

Id

. at 13.

As discussed above, besides the ten K061 waste streams represented in the full-scale, in-

plant trials, PDC could in the future treat additional K061 waste streams with its new

stabilization technology and bring the resulting treatment residue within the scope of the

delisting. Before operation of full-scale treatment of a new K061 waste stream, PDC must verify

through bench-scale treatability testing that the waste stream can be treated to meet the delisting

levels. PDC must submit a report of treatability testing to IEPA within seven days of completing

the testing. PDC explains that it is “important to PDC’s viability as an ongoing business

enterprise to have flexibility to add additional generators as market conditions change and future

opportunities arise without re-petitioning the Board.” Pet. at 17.

Rick Fox believes PDC’s economic justification oversimplifies the situation. PC 314 at

1. Fox states that PDC assumes the municipal landfill target is Hopedale, which is only 29 miles

away, rather than Baylis, which is 117 miles away.

Id

. As to PDC’s assertion that the cost of

hazardous waste disposal would be unbearable to customers in the Midwest, Fox believes this to

be outdated based on the “booming” steel industry described in the August 2008 edition of the

Illinois Business Journal

.

Id

. at 2. PDC responds to Fox’s claims by clarifying that its economic

comparison recognizes the Indian Creek Landfill No. 2 in Hopedale as the most likely receiving

facility. Br. at 66. As to the impact on the steel industry, PDC cites the comments made at

hearing by five of its steel mill customers to demonstrate the importance of the WSF to their

respective companies.

Id

. at 67.

Chad Erdmann, Environmental Engineering Manager at Keystone Steel & Wire Co.,

states that if PDC were no longer able to treat and landfill K061 waste, Keystone’s cost for waste

disposal would increase significantly because of high transportation costs to the next nearest

facility. Tr. at 86-87; PC 11. Keystone, located in Bartonville, Illinois, employs over 900

people. Erdmann states that for many years, treatment and disposal by PDC has been convenient

and cost effective, and that “PDC is a valuable supplier in Keystone’s business plan moving

forward.” Tr. 86; PC 11.

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85

Illinois State Senator Bill Brady of the 44th District offered his perspective:

It is my understanding that if PDC does not receive this K061 delisting

authorization, it may be forced to lay off most of its 70 union employee workforce

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. PC 24 at 2.

Again, the Board takes into account these economic matters under Section 27(a) but

emphasizes that they “bear no nexus to the issue of whether the stabilized K061 wastes remain

hazardous.” 60 Fed. Reg. 31107, 31112 (June 13, 1995).

ISSUES RAISED IN PUBLIC COMMENT NOT ADDRESSED ABOVE

Below the Board discusses additional issues raised in public comment. Requests for

more hearings are not addressed below because the Board previously ruled on that matter, as

described above in the procedural background of this opinion.

Permitting

PFATW and HOI Sierra Club note that PDC’s petition mentions that a permit

modification will be needed should the adjusted standard be granted. PC 301 at 10. The groups

express concern that PDC has not addressed “exactly what permit modifications will be needed.”

Id

. According to PFATW and HOI Sierra Club, the Board “should see what permit

modifications will be proposed” before granting the delisting.

Id

.

PDC responds that that the groups’ position is “clearly not an accurate statement of the

law” (Br. at 62), adding that:

the practical effect of contemporaneous consideration is circular: the permit

modification would simply memorialize the delisting, so consideration of the

modification prior to or with the delisting would be out of order (

id

. at 63).

PDC concludes by noting that since filing the delisting petition, the company has conferred with

IEPA and “confirmed that no permits or permit modifications will be required if the delisting is

granted,” maintaining that PDC’s current RCRA Part B permit is “sufficient to cover PDC’s

operations in treating the EAFDSR after delisting.” Br. at 63.

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The Board declines the request of PFATW and HOI Sierra Club. Nor will the Board

render a legal opinion on whether a permit modification is required. Such a statement by the

Board is not necessary to rule upon this delisting petition.

Siting

PFATW and HOI Sierra Club argue that “PDC needs to go through the local siting

approval process before the Petition can be granted” because the proposed delisting “would

create a new pollution control facility.” PC 301 at 11. According to these groups, PDC is

“attempting to turn its PDC No. 1 Landfill waste disposal unit into a transfer station” and would

be storing and transferring, for the first time, EAFDSR “special waste.”

Id

. at 11-13, citing 415

ILCS 5/3.330(b)(2), (3) (2006). Even “should the Board find that the delisting Petition does not

constitute a new pollution control facility, the Board should nonetheless find that EAFDSR is a

special waste by virtue of the special handling waste moniker.” PC 301 at 13.

PDC responds that “[t]his is a delisting case, not an expansion case requiring siting.” Br.

at 63. Moreover, PDC continues, none of the categories of the Act’s “new pollution control

facility” definition apply.

Id

. at 63-64, quoting 415 ILCS 5/3.330(b) (2006). PDC adds that the

delisting would not somehow create a “transfer station” under the Act . Br. at 64, citing 415

ILCD 3.500 (2006). PDC also maintains that it currently manages special waste for treatment

and subsequent disposal in Subtitle D facilities, so PDC would not be managing such a waste

“for the first time,” within the meaning of Section 3.330(b)(3) of the Act. Br. at 65. Moreover,

PDC has taken the position that the delisted EAFDSR can be managed as a “non-special waste,”

not subject to the manifesting requirements. PFT at 1-2. PDC states, however, that it:

maintains an extensive electronic database of all non-special wastes shipped and

received by its facilities, and requires bills of lading as hard-copy tracking

documents for each shipment. These documents become part of the facility

operating record and are available for and subject to IEPA inspection. PFT at 2.

The Board finds that Section 39.2 siting is not a prerequisite to the Board granting this

delisting petition. In contrast, the Act does require proof of local siting approval before IEPA

may grant a permit for the development or construction of a new pollution control facility. 415

ILCS 5/39(c) (2006). To rule upon this delisting request, however, the Board need not and

therefore will not offer legal opinions on the disputed interpretations of “new pollution control

facility,” “transfer station,” and “special waste.” Finally, the Board disagrees with Varble’s

assertion that the K061 delisting would effectively convert Subtitle D landfills into hazardous

waste landfills without local siting approval. Tr. at 47;

see also

Tr. at 64 (Offutt). By definition,

a conditional delisting excludes the petitioned waste from the category of listed hazardous waste

as long as the conditions of the delisting are met, and PDC has demonstrated that the waste does

not exhibit any of the hazardous waste characteristics.

19

Statewide Change in Regulations

19

See also

footnote 3.

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Diane Jorgensen states that the proposed delisting will create a statewide rule change,

allowing PDC to send its EAF dust to any Subtitle D landfill in Illinois. Tr. at 78. Gerard voices

similar concern. Tr. at 100. As the Board explained in its September 4, 2008 order, an adjusted

standard proceeding, like this delisting case, is not a rulemaking and cannot amend a statewide

regulation. 415 ILCS 5/28(a) (2006);

see also

35 Ill. Adm. Code 102.412(a). 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).

Non-Disclosable Information

A number of commenters maintain that they could not assess the risks and effectiveness

of PDC’s proprietary stabilization technology due to the lack of public access to PDC’s claimed

non-disclosable information concerning treatment chemical reagents and their constituents.

See

PC 300 at 1, 3 (Stephen Lester, Science Director for the Center for Health, Environment &

Justice); PC 302 at 1 (Dr. deFur); Tr. at 74-75 and PC 306 at 1 (Bucklar); Tr. at 101 and PC 307

(Edwards); PC 313 at 2 (Tracy Fox); Postcard 1. Lester suggests that because he found no

details on PDC’s proprietary process in the TSD, PDC’s petition fails to meet USEPA

requirements for providing a detailed description of the treatment process generating the

petitioned waste. PC 300 at 1.

PDC states that the claimed non-disclosable information contains documents pertaining

to the specific chemicals comprising the proprietary chemical treatment regimen and a general

description of the reactions that occur in PDC’s treatment process. Br. at 31-32. Further, PDC

explains that it is contractually prohibited from providing details on the complete reaction

mechanism because the chemical treatment technology is owned by Dr. Chowdhury. Br. at 32.

PDC emphasizes that the Board has had the opportunity to review this information.

Id

.

The Board notes that similar concerns were raised in the USEPA Heritage

delisting,

where a participant commented that “[m]uch of the relevant information was confidential

business information, such as what treatment reagents were used or specifications of a mixing

device.” 67 Fed. Reg. 1888, 1893 (Jan. 15, 2002). USEPA responded that “Heritage has

claimed information which it submitted on equipment, reagents, and process as confidential.

Heritage believes that such information in the public domain could be injurious.”

Id

. Similar

information was kept confidential in the CSI delisting, where USEPA stated:

CSI has claimed some treatment process descriptions, including information on

how they improved the original Super Detox

TM

treatment process, as confidential

business information (CBI). This information, therefore, is not available in the

RCRA public docket for today’s notice. 60 Fed. Reg. 31107, 31108 (June 13,

1995), 58 Fed. Reg. 58521, 58524 (Nov. 2, 1993).

As with confidential business information at the federal level, the Illinois General

Assembly has made provision in the Act to protect from public disclosure trade secrets and other

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non-disclosable information submitted to the State agencies. Those same provisions exclude

certain submissions that are not to be kept confidential, balancing the public’s right to know with

other policy interests, such as protecting secret processes that have competitive business value.

415 ILCS 5/7, 7.1 (2006). The Board’s procedural rules (35 Ill. Adm. Code 130) implement

these statutory provisions, and allow a petitioner to claim that all or part of a filing constitutes

non-disclosable information.

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

certain portions of Appendices B and F to the TSD. PDC filed two versions of these appendices,

one with the claimed information redacted and the other un-redacted. The Board received no

formal requests for public disclosure of the claimed information and for purposes of today’s

delisting decision, the Board need not render a determination on PDC’s application for non-

disclosure. The Board has thoroughly reviewed PDC’s claimed information in issuing today’s

delisting, just as USEPA did with the claimed information of Heritage and CSI. PDC’s claimed

information will remain protected from public disclosure in accordance with 35 Ill. Adm. Code

130.

Cancer Rate

James L. McGee, M.D., wrote in as the Chairman of the Cancer Committee at OSF Saint

Francis Medical Center in Peoria. Through data obtained from the American Cancer Society

through the Illinois Department of Public Health, Dr. McGee provides information on cancer

rates in Illinois, indicating that Peoria County has “an elevated cancer incidence.” PC 220 at 1.

Dr. McGee states that “[t]his is not to say that PDC is responsible for the elevated cancer rate in

Peoria County, since as scientists, we recognize that carcinogenesis is a multi-factorial problem.”

Id

. Dr. McGee expresses concern particularly over health risks from the “

importation and

accumulation

of toxic and/or

known carcinogenic chemicals

into Peoria County, by PDC or

anyone else.”

Id

. at 2 (emphasis in original).

PDC describes Dr. McGee’s “perceived risk” as unsubstantiated and undefined. Br. at

58. PDC adds that Peoria County’s cancer incidence rate is slightly above the State average and

that Peoria County’s cancer mortality rate is lower than the State average, citing the data of the

Illinois Department of Public Health, Illinois State Cancer Registry (public data as of November

2005), and the Surveillance, Epidemiology and End Results (SEER) Program, SEER*Stat

Database”: Mortality—All COD Public-Use with State, Total U.S. (1969-2003), National

Cancer Institute, DCCPS, Surveillance Research Program, Cancer Statistics Branch, released

April 2006 (underlying mortality data provided by NCHS). Br. at 57-58, Exh. G.

Recycling EAF Dust

Blumenshine opposes delistings generally because they result in “perpetuation of an

archaic process of producing toxic wastes and burying them rather than processing the wastes for

recycling.” PC 3. Blumenshine states that the Steel Dust Recycling Center in Millport, Alabama

processes over 110,000 tons of EAF dust annually to recycle lead and zinc. PC 3. Bill Spencer

notes that major steel mills in other parts of the world are recycling 100% of their EAF dust. Tr.

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at 97. Commenters urge governments to oppose delistings that do not lead to recycling (PC 3)

and to offer financial support for recycling (Tr. at 98).

Chad Erdmann, environmental manager at Keystone Steel and Wire, states that although

the Keystone steel mill is one of the largest recyclers in the area, certain byproducts need to be

managed as hazardous waste. Such wastes, he adds, have been for many years treated and

disposed of by PDC in an environmentally friendly manner. Tr. at 86; PC 11. Jeannine Kelly,

Alton Steel’s Director of Regulatory Compliance, also states that PDC’s operation is crucial for

managing Alton Steel’s EAF dust in an environmentally responsive manner. Tr. at 89. John

Skelley, Corporate Environmental Affairs Manager for Gerdau Ameristeel, states that while his

steel mill prefers to recycle:

in the case of EAF dust, there is not enough capacity to recycle the annual North

American production of 800,000 – 1,100,000 tons. *** There are a number of

recycling projects being conducted worldwide to solve the EAF dust recycling

challenge, however, it will be a number of years before enough commercial

recycling capacity is available.” Tr. at 83-84; PC 12.

Gerdau Ameristeel sees PDC’s K061 delisting petition as crucial to meet the EAF dust capacity

requirements in the interim. Tom Barnett, Solid and Hazardous Waste Manager at Arcelor

Mittal, states that in addition to the capacity limitation, the low zinc content of Arcelor Mittal’s

EAF dust limits its recycling potential. Tr. 90-91. Dave Long, Environmental Manager at

Sterling Steel, explains that recyclers do not take EAF dust with low zinc content because there

is no monetary incentive to recycle such material. Tr. at 136.

PDC echoes that not all K061 wastes are viable recycling candidates:

It has been PDC’s experience that, as a general rule, the waste market is efficient

enough that K061 wastes with higher zinc concentrations are being recycled

while PDC’s K061 receipts are those with lower zinc concentrations. Perhaps the

single greatest determinant of a K061 waste’s recycling value is the market price

for zinc, which can fluctuate dramatically. Br. at 23-24.

PDC states that until more recycling becomes available as recyclers improve efficiency, steel

mills “have to have safe, well run landfills in order to operate.” Pet. Br. at 25, quoting Tr. at 91

(Tom Barnett, Arcelor Mittal Steel).

The Board notes that in USEPA’s Heritage

delisting, a number of commenters claimed

that the delisting “would inappropriately and illegally allow for the landfilling of chemically

stabilized K061 that is currently being recycled by high-temperature metals recovery (‘HTMR’)

facilities.” 60 Fed. Reg. 31107, 31109 (June 13, 1995). USEPA responded that it:

has no authority to retain this waste as a listed hazardous waste simply because

doing so would effectively promote HTMR recycling . . . and reclamation of

K061 wastes over treatment and disposal of CSI’s chemically stabilized, non-

hazardous waste. *** [T]he effect of this delisting on K061 recycling practices is

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speculative in any event. *** [T]he extent to which steelmakers may stop using

recycling technologies upon today’s delisting in favor of managing EAFD

through CSI’s Super Detox

TM

process is unclear. 60 Fed. Reg. at 31109-10.

The Board finds that it would be impermissible under the delisting regulations to deny PDC’s

petition in an effort to promote recycling.

On-Site Treatment

Edwards suggests that PDC’s proprietary treatment process should be employed on-site

at the steel plants, where the EAF dust is generated. Then, he continues, the residue could be

disposed of in a landfill local to the steel mill. PC 307. Edwards states that this approach would

reduce the potential for traffic hazards and the pollution from motor vehicle exhaust.

Id

. PDC

responds that “neither PDC nor the Board has the authority to require that steel mills perform on-

site treatment.” Br. at 31.

The Board notes that an adjusted standard petition must address the efforts needed to

comply with the rule of general applicability from which it seeks relief. 35 Ill. Adm. Code

104.406(e). Accordingly, the delisting petitioner is required to present information on

alternatives for complying with the RCRA hazardous waste regulations, not on alternative

locations for the proposed delisting’s treatment process. The Board has no authority to deny a

delisting request simply in an effort to promote the development of treatment and disposal of

delisted wastes at different sites.

CONCLUSION

After carefully analyzing the entire record, the Board finds that the residue generated

from treating K061 EAF dust with PDC’s new stabilization technology, upon meeting delisting

levels though verification testing, is not RCRA hazardous waste. In accordance with federal and

Illinois delisting regulations and precedent, the Board grants PDC’s petition for a delisting

adjusted standard, subject to the conditions set forth in the order below. However, the Board

must deny PDC’s request that the company be allowed to substantially modify its chemical

treatment process, and thereby this delisting, without first returning to the Board to make the

required demonstration.

Based on this record, the treatment residue does not meet any of the criteria under which

K061 EAF dust was listed as RCRA hazardous waste. Nor is there any reasonable basis to

believe that factors other than those for which the K061 waste was listed warrant retaining the

treatment residue as a hazardous waste. Further, the treatment residue does not exhibit any of

the characteristics of hazardous waste,

i.e.

, ignitability, corrosivity, reactivity, and toxicity.

Only if the conditions of the adjusted standard are met can PDC dispose of the treatment

residue as non-hazardous waste. For example, to qualify for delisting, the treatment residue

must not exceed any of the delisting level concentrations for the chemicals set forth in condition

4 of the order. The Board has added dioxins and furans as a constituent of concern. Dioxins and

furans accordingly must be monitored for compliance with a delisting level, along with the other

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14 chemicals PDC had proposed. Every batch of treatment residue must be representatively

sampled and laboratory-analyzed to demonstrate compliance with the delisting levels,

i.e.

, no

batch of treatment residue may be disposed of as non-hazardous waste unless and until analytical

results for that batch show that every delisting level has been met. Treatment residue meeting

the delisting levels must be disposed of off-site in a RCRA Subtitle D landfill that (1) has a liner,

a leachate collection system, and a groundwater monitoring system; (2) is permitted by IEPA;

(3) meets the requirements of the Board’s non-hazardous solid waste landfill regulations at 35

Ill. Adm. Code 810-814; and (4) has all necessary IEPA-issued permits to receive the treatment

residue.

The Board wishes to acknowledge the exceptional public participation in this proceeding.

The Board received hundreds of public comments, more than in any other delisting case in the

Board’s history. The Board greatly appreciates the thoughtful contributions made to this record

by individual citizens, environmental groups, technical experts, elected officials, and industry

representatives. A delisting case, however, is neither a landfill siting appeal nor a permit appeal,

the legal standards of which, under the law, cannot be applied here. Nevertheless, every concern

expressed in public comment has been thoroughly considered by the Board, and many of those

concerns are reflected in the highly protective conditions being imposed today on this delisting.

In addition to those changes to PDC’s proposed adjusted standard language discussed in

this opinion, the Board made numerous clarifying and organizational amendments. If PDC or

IEPA disagrees with any language change made by the Board, either party may file a motion to

reconsider or modify.

See

35 Ill. Adm. Code 101.520(a). A timely-filed motion for

reconsideration or modification would stay the effect of today’s order until the Board disposes of

the motion.

See

35 Ill. Adm. Code 101.520(c). This delisting will be added to 35 Ill. Adm. Code

721.Appendix I, Table D.

See

35 Ill. Adm. Code 720.122(n)(3).

ORDER

The Illinois Pollution Control Board (Board) grants to Peoria Disposal Company (PDC) a

delisting adjusted standard from 35 Ill. Adm. Code 721.Subpart D, subject to the following

conditions:

1.

This adjusted standard applies only with respect to PDC’s facility located at 4349

W. Southport Road in Peoria, Peoria County, Illinois. This adjusted standard

becomes effective on January 8, 2009, and remains in effect for as long as PDC

maintains a valid Resource Conservation and Recovery Act (RCRA) Part B

permit for the Waste Stabilization Facility (WSF).

2.

a.

This adjusted standard is provided only for the residue resulting from the

treatment of K061 RCRA listed hazardous waste using PDC’s new

proprietary stabilization technology described in the RCRA Delisting

Adjusted Standard Petition for PDC’s EAF Dust Stabilized Residue

(EAFDSR), including the Technical Support Document, filed by PDC

with the Board on April 25, 2008 (Petition); provided, however, that the

treatment process and chemicals may be modified pursuant to condition

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3(b). The K061 waste streams must be from among the steel mills

represented in the Petition’s full-scale, in-plant trials; provided, however,

that other K061 waste streams may be added pursuant to condition 3(a).

This adjusted standard is provided for up to a total annual waste disposal

volume of EAFDSR of 95,000 cubic yards.

b.

PDC’s EAFDSR meeting the delisting levels of condition 4 is non-

hazardous as defined in 35 Ill. Adm. Code 721 and no longer subject to

regulation under 35 Ill. Adm. Code 722-728 or the permitting standards of

35 Ill. Adm. Code 703; provided, however, that PDC remains obligated to

determine whether the EAFDSR is characteristically hazardous waste by

operation of Subpart C of 35 Ill. Adm. Code 721. The EAFDSR must

meet the verification testing requirements of condition 3 to ensure that

hazardous constituents are not present in the EAFDSR at levels of

regulatory concern. The EAFDSR must be handled as K061 RCRA listed

hazardous waste unless and until it meets the delisting levels of condition

4 as verified by testing pursuant to condition 3.

c.

PDC’s non-hazardous EAFDSR must be disposed of off-site in a RCRA

Subtitle D landfill that:

i.

Has a liner, a leachate collection system, and a groundwater

monitoring system;

ii.

Is located in the State of Illinois and permitted by the Illinois

Environmental Protection Agency (IEPA);

iii.

Meets the requirements of the Board’s non-hazardous solid waste

landfill regulations at 35 Ill. Adm. Code 810-814; and

iv.

Has all necessary IEPA-issued permits to receive the non-

hazardous EAFDSR.

3.

Verification Testing.

a.

Bench-Scale Treatability Testing.

i.

Except as provided in condition 3(a)(ii), PDC must verify through

bench-scale treatability testing that each K061 waste stream

received by PDC for chemical stabilization can be treated to

consistently meet the delisting levels of condition 4 prior to the

operation of full-scale treatment of that waste stream.

ii.

PDC is not required to conduct bench-scale treatability testing

under condition 3(a)(i) for any K061 waste streams from the steel

mills already represented in the Petition’s full-scale, in-plant trials;

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93

provided, however, that if there is a significant change in the

treatment process or chemicals pursuant to condition 3(b), PDC

must conduct such bench-scale treatability testing prior to the

operation of full-scale treatment of any of those waste streams.

iii.

PDC must submit a report of the treatability testing to IEPA within

seven days after completing such testing.

b.

Modification in Treatment Process or Chemicals.

i.

Before implementing any significant change in the full-scale

treatment process or chemicals, PDC must, in accordance with 35

Ill. Adm. Code 720.122(h), analyze the new treatment residue for:

A.

Compliance with the delisting levels of condition 4;

B.

The constituents of 35 Ill. Adm. Code 724.Appendix I, less

pesticides and herbicides;

C.

Oil and grease, pH, total cyanide, total sulfide; and

D.

The RCRA toxicity characteristic constituents of 35 Ill.

Adm. Code 721.124.

ii.

At least 15 days before implementing any significant change in the

full-scale treatment process or chemicals, PDC must submit to

IEPA the results of the testing described in condition 3(b)(i) and

the bench-scale treatability testing described in condition 3(a).

iii.

If no delisting level in condition 4 is exceeded and no new

hazardous constituent is detected during the testing described in

condition 3(b)(i), then the new treatment residue shall be

considered to be within the scope of this adjusted standard, subject

to compliance with bench-scale treatability testing requirements

under condition 3(a).

iv.

If any delisting level of condition 4 is exceeded or if any new

hazardous constituent is detected during the testing described in

condition 3(b)(i), and PDC wishes to have the new treatment

residue considered to be within the scope of this adjusted standard,

PDC may file a petition with the Board to amend this adjusted

standard. Such petition must comply with 35 Ill. Adm. Code

720.122. New treatment residue must be handled as K061 RCRA

listed hazardous waste unless and until the Board issues a written

decision granting the petition to amend the adjusted standard under

35 Ill. Adm. Code 720.122.

---

94

v.

For purposes of condition 3(b):

A.

A “significant change” in the treatment process means

mixing effort less than that used in the Petition’s full-scale,

in-plant trials.

B.

A “significant change” in the treatment chemicals means a

difference in the treatment chemicals from those used in the

Petition’s full-scale, in-plant trials, including different

chemicals and different ratios, dosages, or sources of the

same chemicals; provided, however, that this provision

does not apply to different ratios or dosages of the same

chemicals from the same sources used pursuant to

condition 3(c)(ii)(B) unless such different ratios or dosages

could introduce a new hazardous constituent to the new

treatment residue.

C.

A “new hazardous constituent” means a chemical listed in

35 Ill. Adm. Code 724.Appendix I that:

I.

Was not detected as part of the Petition; or

II.

Was detected as part of the Petition and excluded

from condition 4, but which is detected during the

testing described in condition 3(b)(i) at a

concentration greater than the highest concentration

detected as part of the Petition.

D.

“New treatment residue” means the waste resulting from

treatment after a significant change in the treatment process

or chemicals.

c.

Testing of Treatment Residue.

i.

PDC must collect representative grab samples of each treated

mixer load of the EAFDSR and composite the grab samples to

produce a daily composite batch sample. This sample must be

analyzed for TCLP leachate concentrations for all the constituents

listed in condition 4 prior to disposal of the treated daily batch.

ii.

If a verification sample does not indicate compliance with all

delisting levels, the treatment residue must be:

---

95

A.

Treated further using additional curing time as the chemical

reagents complete their reactions with the waste, followed

by another round of verification sampling and analysis;

B.

Re-processed through the WSF for re-treatment, followed

by another round of verification sampling and analysis; or

C.

Managed as K061 RCRA listed hazardous waste at a

properly permitted RCRA Subtitle C facility.

iii.

All subsequent verification analyses must:

A.

Be conducted on a composite sample that represents the

entire daily batch as did the preceding sample that

contained any concentration of a constituent exceeding the

constituent’s value in condition 4; and

B.

Include analysis for all constituents listed in condition 4.

iv.

If all delisting levels are not achieved within the maximum storage

time allowed PDC by its RCRA Part B permit, the entire daily

batch must undergo re-treatment in the WSF or be managed as

K061 RCRA listed hazardous waste as required by 35 Ill. Adm.

Code 728 and the WSF RCRA Part B permit.

v.

PDC must submit annually to IEPA the data collected pursuant to

condition 3(c) and a summary of the data. Alternatively, IEPA

may consent to receipt of only the summary or a subset of the data

or both.

d.

All analyses must be performed according to SW-846 methodologies

incorporated by reference in 35 Ill. Adm. Code 720. The analytical data

must be compiled and maintained for a minimum of three years on site.

These data must be furnished upon request of and made available for

inspection by any employee or representative of the State of Illinois.

4.

Delisting Levels. Based on testing pursuant to condition 3, the constituent

concentration in TCLP leachate from the EAFDSR must not exceed any of the

values shown below, otherwise such wastes must be managed and disposed of as

K061 RCRA listed hazardous waste in accordance with 35 Ill. Adm. Code 703

and 722-728.

Constituent

TCLP Delisting Level (mg/L)

Antimony

0.206

Arsenic

0.0936

Barium

21.0

---

96

Beryllium

0.416

Cadmium

0.11

Chromium (Total)

0.6

Lead

0.75

Mercury

0.025

Nickel

11.0

Selenium

0.58

Silver

0.14

Thallium

0.088

Vanadium

3.02

Zinc

4.3

Dioxins/Furans

expressed as Total 2,3,7,8-TCDD

(Total Tetrachlorodibenzo-p-dioxin)

Equivalence

2.05 x 10

-10

5.

Data Submittal. All data must be submitted to the Manager of the Permit Section,

Bureau of Land, Illinois Environmental Protection Agency, 1021 North Grand

Avenue East, P.O. Box 19276, Springfield, Illinois 62794-9276 within the time

period specified. At IEPA’s request, PDC must submit any other analytical data

obtained pursuant to condition 3(c) within the time period specified by IEPA. All

data must be accompanied with the following certification statement:

Under civil and criminal penalty of law for the making or

submission of false or fraudulent statements or representations, I

certify that the information contained in or accompanying this

document is true, accurate, and complete.

As to any identified section of this document for which I cannot

personally verify its truth, accuracy, or completeness, I certify, as

Peoria Disposal Company’s official having supervisory

responsibility for the person(s) who, acting under my direct

instructions, made the verification, that this information is true,

accurate, and complete.

In the event that any of this information is determined by the

Board or a court of law to be false, inaccurate, or incomplete, I

recognize and agree that this exclusion of waste will be void as if it

never had effect or to the extent directed by the Board or court and

that Peoria Disposal Company will be liable for any actions taken

in contravention of its obligations under RCRA (including its

RCRA Part B permit) or the Comprehensive Environmental

Response, Compensation and Liability Act or corresponding

provisions of the Environmental Protection Act premised upon

Peoria Disposal Company’s reliance on the void exclusion.

---

97

____________________________

(Name of certifying person)

____________________________

(Title of certifying person)

____________________________

(Date)

6.

PDC, at least 15 calendar days before transporting an initial load of delisted

EAFDSR to a given disposal facility, must provide IEPA with a one-time, written

notification identifying that disposal facility. The notification submittal must be

addressed as specified in condition 5.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

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

Board adopted the above opinion and order on January 8, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board

---

ATTACHMENT A

Oral Public Comments Made at Hearing on August 18, 2008

1.

Tr. 38-41

Jess Slager

2.

Tr. 41-45

Ila Minson

3.

Tr. 45-55

Matt Varble

4.

Tr. 55-61

Dennis Ford

5.

Tr. 61-70

Lisa Offutt

6.

Tr. 70-73

Rudy Habben

7.

Tr. 73-77

Tessie Bucklar

8.

Tr. 78

Diane Jorgensen

9.

Tr. 78

Julie Luner

10.

Tr. 79-81

Don Maurer

11.

Tr. 81-83

Bob Jorgensen

12.

Tr. 83-84

Jack Skelley

13.

Tr. 85

Dan Pioletti

14.

Tr. 85-86

David Taylor

15.

Tr. 86-87

Chad Erdmann

16.

Tr. 87-90

Jeannine Kelly

17.

Tr. 90-91

Tom Barnett

18.

Tr. 91-96

Bill Cook

19.

Tr. 96-99

Bill Spencer

20.

Tr. 99-100

Suzanne Gerard

21.

Tr. 100-104

Tom Edwards

22.

Tr. 104-110

Tracy Fox

23.

Tr. 110-120

Cara Rosson

24.

Tr. 121-126

Joyce Blumenshine

25.

Tr. 126-131

David Wentworth

26.

Tr. 131-138

David Long

27.

Tr. 138

Rick Fox

---

ATTACHMENT B

Written Public Comments Filed in AS 08-10

Shaded names indicate the comment was a form postcard: * for Postcard 1; ** for Postcard 2.

1 Lisa Offutt

2 Tom Edwards

3 Joyce Blumenshine

4 Kim McLean Converse

5 IL State Rep. Bill Mitchell

6 Matt Varble

7 Matt Varble

8 Matt Varble

9 Hopedale Township Resolution

10 Carol VanWinkle

11 Chad Erdmann

12 John R. Skelley

13 Rudy Habben

14 Tom Edwards

15 Joyce Blumenshine

16 Cara Rosson

17 Matt Varble

18 Matt Varble

19 Matt Varble

20 Lisa Offutt

21 Matt Varble

22 Matt Varble

23 Tom Edwards

24 IL State Senator Bill Brady

25 Matt Varble

26 Matt Varble

27 Julia Luner **

28 R. S. Dooin **

29 Judy G. Bradford **

30 Kerri Blicharz **

31 Merrill and Marie Johnson **

32 Ann Kunchisky **

33 Baker & McKenzie LLP

34 Chris Meerdam **

35 Jim Runyan & Mary Peifer*

36 Mary K. Besler*

37 Joan Schmidt*

38 Marianne Campbell*

39 Charles C. Chen *

40 Rick Fox **

41 Jennifer Jones Hartter **

42 Holli Cook *

43 Shirley Armand*

44 Jean Slonneger *

45 Michael Brown & Beverly Beier*

46 John & Beth Giberron*

47 Florence Kreephauser*

48 Loyal D. Miller **

49 Nora E. Leman *

50 Brad Nimrick*

51 James R. Templos *

52 Illegible signature **

53 Richard K. Jonet *

54 Jeanette Parsons *

55 Myrna Kele*

56 Kathleen S. Krupp *

57

Mary M. Mazzola & Jean J.

Mezzola*

58 Brendan Liddell **

59 Janet LeMaster *

60 Anne Kirchgrimen *

61 Dornino John Ciabottom*

62 Thomas Beacham **

63 Richard L. Steipp*

64 Jeffrey T. Sims **

65 Dennis Endicott **

---

66 Mary J. Boyer **

67 L. Brinkman Mosiman, MD **

68 Josh Naven *

69 Rhonda J. Schnules **

70 Ron Slomeger **

71 A. Souscek **

72 John Mullen *

73 Charles & Jeanie Bukowski *

74 Carlos Razo *

75 John R. Ring*

76 Earl & Dorothy J. Urish **

77 Mary D. Mossner **

78 Douglas Elbin *

79 Steve Dayton **

80 Marjorie Klise *

80A Julie Carl*

81 Norman P. Meyn, MD *

82 Amber Ealey **

83 Florence C. Beltz*

83A Sonya Durand*

84 Edward J. Willi*

85 Joseph C. Merkle

86 Lisa Sandell

87 Phyllis Pryde

88 William Parr and Family

89

Frank & Dorothy Stenger *

90

William Seelye and LaVonne P.

Seelye*

91 Susan Plott *

92 Jason & Erin Lewis*

93 Randal Shagren*

94 James & Phyllis Clase*

95 Ameel G. Rashid*

96 Glenn Belsley *

97 Janet MacLean*

98 Mary Noel Cline *

99 Bruce A. Knoll **

100 John Wosik **

101 Valerie Park *

102 Nancy & Martin Siebrasse*

103 Imelda F. Kelch *

104 Mayvis Young *

105 Mrs. Harry Miller (Eleanor E.) *

106 Marge Willadsen *

107 Carol Johnson *

108 Richard H. Lee, MD *

109 Nancy C. Taylor *

110 Janet Aupperle *

111 S. Gilbert **

112 Harry Miller **

113 Darlene B. Hixon *

114 Shirley L. O'Connell **

115 Clare T. Waibel *

116 Tina Christ *

117 Shirley L. and John O'Connell *

118 Joy Rennich *

119 Rita Schwerer *

120 Darryl & Chanda Irons *

121 Joann Murphy *

122 James & Elaine Murphy *

123 Mr. & Mrs. Sean Leuba *

124 Bonnie & Edward Meints *

125 Virginia E. Schlisksup *

126 Nancy J. Lawless *

127 Robert H. Jorgensen **

128

Pennie Schachtrup & Stephen

Schachtrup *

129 Harold and Debra Beeney *

130 Connie Disney **

131 Stephen D. Grobe **

132 Phyllis M. Lutz **

133 Charlene Cravens *

134 Ed Klein *

135 Jane Johnson *

136 David Hultgren *

137 Carlotte Cordett *

138 Mark Kruger *

139 Kathleen McVey *

---

140 Donald C. Oltman Sr. *

141 Susan J. Clark *

142 Dane Heather Hopkins *

143 Kathy Johnson *

144 Mark Golden *

145 Edward C. Levine *

146 Angela Swearingian *

147 Matt Becker *

148 Carolyn Bushig *

149 RaJean A. Smith *

150 Kandace & James Berual *

151 James & Sandra Hattermann *

152 William F. Mahl *

153 Rudolph J & Joanne N. Kern *

154 Douglas G. Franks *

155 Roger R. Cunningham *

156 Patricia Abuwens *

157 Anne Bartolo *

158 Mike & Amy Breitbach *

159 Rebecca A Liefer *

160 Judith E. Stalling *

161 Marcia S. Willson **

162 Pam & Eric Elwood *

163 Rebecca J. Qiltz **

164 J. W. Fleming **

165 An Dloy **

166 Sheila B. Gibble **

167 Wayne E. Caho *

168 Richard Winesh **

169 Jeanne Daykin *

170 Dr. Craig S. Mitchell **

171 Jennifer Class-Mitchell *

172 Marion P. Bohner *

173 Cathie Crawford *

174 JoAnne Richardson *

175 Marcia Lee-Ball *

176 Cathy Stevenson *

177 Lois A. Pronger **

178 Wiley A. Shuawget **

179 Donald D. Shover *

180 Merrill W. Foster **

181 Bill Berton **

182 Bill & Mary Voorhees *

183 Joanne Fought *

184 Michael F. Shichting **

185 Madeline Dilley **

186 Elizabeth Yost **

187 Don J. Elway **

188 W. Jo Anne Love **

189 Edgar L. Chapman **

190 Donald J. Frederick **

191 Ellen A. Dickerson **

192 Brian Bern **

193 Diane Wahl **

194 Judith C. Stahling **

195 Janet R. Scribner **

196 A. Fontayn **

196A Debra Wagstaff **

197 Mike Foster **

198 Margaret N. Giltner *

199 Donald J. Crane *

200 Susan A. Schearer *

201 Kathie Wasden *

202 Frederick Dintzos *

203 Bill & Margie Trent *

204 Mary D. Mossner *

205 Lynn Blair *

206 Anna May Dufek *

207 Julia E. Kirchgessner *

208 Nerio & Sandra Culgara *

209 Tom E. Bucklar

210 Bruce W. Maerb **

211 Henry Rakofl **

212 Helen L. Emanuels *

213 Nancy C. Long *

214 Bob & Sandy Lowenstein *

215 Don Sit *

216 David J. Crolius **

---

217 Mary Ellen & Blane Taylor *

218 Jill M. Johnston *

219 Michael Brown & Diane F. Brown *

220 James L. McGee, M.D., OSF

221 Barbara J. Davidson

222 Ila Minson

223

John M. McLean *

224 John Schweitzer *

225 Elaine Matheny *

226 Robert O. Means **

227 Meredith Blain *

228 Lauralee P. Randolph *

229 Michael C. Vidas *

230 Mr. & Mrs. Harvey R. Young *

231 Therese M. Taylor *

232 Alexandra M. Sinacori *

233 Ronald E. Roberts *

234 Mr. & Mrs. Robert Reading *

235 Frank Zainuto *

236 Kathleen C. Vreed *

237 Dan Pioletti *

238 Gerald D. Davis **

239 L. Snyder *

240 Lisa & Burt Raabe *

241 Sharon & Richard Green *

242 Beverly A. Matheny *

243 Barbara J. Davidson *

244 David Block **

245 Donna Hettiner *

246 Thomas C. Lucas *

247 Chris Rybak *

248 Douglas & Paula Donath *

249 Nancy A. Hoover **

250 Jerry Hosler *

251 Dianne L. Turner **

252 W. Gene Girds **

253 Bliss & Marilyn Phillips *

254 Christina Kiefer *

255 Rick Fox *

256 Rose Ramos Pasquel *

257 W. C. Heimann *

258 Vernon & Rosemary Guthrie *

259 Sharon Klein *

260 Tom Breje **

261 Christopher Maushard *

262 Judith Roth **

263 Jack Rhodes *

264 Mrs. John Van House **

265 Thomas & Sandra Crow *

266 Marjorie Hogeboom *

267 Janet Kelley *

268 J. Brady **

269 Janet Green *

270 James & Carol Shaver *

271 Roger Williams *

272 Esther R. Roper **

273 Judy Cheng *

274 Margaret Schmitt **

275 Tom M. Grissom **

276 Rick Cibelli *

277 Forest O. Murray *

278 Nelda M. Waddell **

279 R. J. Pirkinson *

280 Julie Anne Jones **

281 Esther J. Perschniick *

282 Jerry L. Hawksworth *

283 Helen J. Gosdon *

284 Jean Gardner **

285 Annette E. Doughty *

286 Frances E. Bumgardner **

287 Dr. & Mrs. Jeremy L. Krol *

288 Vern & Rosemary Guthrie

289 Becky J. Glavash *

290 Anthony Richards *

291 Teresa & William Bucklar *

---

292 Richard Aldredge **

293 Elizabeth N. Piene **

294 Nancy L. Spooner *

295 Beverly Kitel **

296 Joyce Harant **

297 M. Varble

298 William D. Spencer

299 Richard J. Flasker **

300 Stephen Lester

301 PFATW and HOI Sierra Club

302 Peter L. deFur, Ph.D.

303

Ann Johnson **

304 John LaPayne

305 Kim McLean Converse

306 Tessie Bucklar

307 Tom Edwards

308 Joyce Blumenshine

309 Sandra Tripp *

310 Jean Palomares *

311 Jackie D. Hunt **

312 Charles H. Norris, PG

313 Tracy Meints Fox

314 Rick Fox

315 Lisa K. Offutt

316

Ann X. Grawey **

317

Robert O. Wright and Marilyn E.

Wright **

318 S. F. Williams **

319 Lawrence A. Steiner **

320 Harold Begolis *

321 Joy A. Reiter *

322 Mark E. Kowalske **

323 Tom Edwards

324 Tom McCullough

325 Tom McCullough

326 Joyce Blumenshine

327 Tom Edwards