ILLINOIS POLLUTION CONTROL BOARD

May 21, 2009

IN THE MATTER OF:

PETITION OF WESTWOOD LANDS, INC.

FOR AN ADJUSTED STANDARD FROM

PORTIONS OF 35 ILL. ADM. CODE 807.104

AND 35 ILL. ADM. CODE 810.103 OR, IN

THE ALTERNATIVE, A FINDING OF

INAPPLICABILITY

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AS 09-3

(Adjusted Standard – Land)

ORDER OF THE BOARD (by G.L. Blankenship):

On March 31, 2009, Westwood Lands, Inc. (Westwood) filed a petition for an adjusted

standard (Pet.). Westwood seeks a determination that steelmaking slag fines used in its

production process do not constitute “waste” and that its facility therefore does not require

permits under the Board’s solid waste regulations.

See

35 Ill. Adm. Code 807, 810. In the

alternative, if Board does not agree that the slag fines are not a “waste,” Westwood seeks an

adjusted standard from specified portions of Section 807.104 and 810.103 of the Board’s solid

waste regulations.

See

35 Ill. Adm. Code 807.104 (Definitions), 810.103 (Definitions). A motion

for expedited consideration (Mot.) accompanied Westwood’s petition.

Westwood owns a facility located at 4 Caine Drive, Madison, Madison County. Pet. at 1.

Westwood’s facility will process slag fines from steelmaking into two usable products for sale.

Id

. at 2. The first product, a coarse fraction of the metallic fines, is to be sold in bulk form.

Id

. at

2, 7. The second product, a fine fraction of the metallic fines, can be sold in bulk or processed

into briquettes.

Id

. 2, 7-8. The process would also produce a non-metallic fraction that would be

transported off-site to a landfill.

Id

. at 8. Westwood currently has a contract to purchase

steelmaking slag fines from U.S. Steel’s Granite City facility.

Id

. at 1;

see also id

. at 8 n.2

(noting other potential sources of steelmaking slag fines).

Westwood states that, when it applied for a permit to construct and operate air pollution

control equipment for its facility, the Illinois Environmental Protection Agency (Agency or

IEPA) found that the application was incomplete in part because Westwood had not obtained

local approval of the site under Section 39.2 of the Act. Pet. at 2;

see

415 ILCS 5/39.2 (2006);

Pet., Exh B at 3 (Agency Notice of Incompleteness). Westwood states that the Agency informed

it that the slag fines are “waste” and trigger application of authorities regulating pollution control

facilities. Pet. at 2;

see id

., Exh. B at 3, citing 415 ILCS 5/3.330(b), 39.2 (2006).

Westwood first requests that the Board find that the steelmaking slag fines it uses to

make its product is not “waste” and that Westwood does not require waste permits. Pet. at 1;

see

35 Ill. Adm. Code 807, 810. However, if the Board determines that the slag fines are a solid

waste, then Westwood requests an adjusted standard from the definitions of “facility,” “solid

waste,” “solid waste management,” “waste,” and “unit” at Section 807.104. Pet. at 6. Westwood

states that “[i]f the Board grants an adjusted standard from those definitions of Section 807.104,

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the remaining provisions of Part 807 will not be applicable to petitioner’s facility as it will not

handle “waste” and will not be a solid waste management site.”

Id

. Westwood also requests an

adjusted standard from the definitions of “facility,” “landfill,” and “solid waste” at Section

810.103.

Id.

;

see

35 Ill. Adm. Code 810.103. Westwood argues that “[t]he slag fines should not

be treated as a “solid waste,” and thus Westwood’s facility is not a “landfill.”

Id

.

The Agency has not yet filed its recommendation on Westwood’s petition for an adjusted

standard.

See

35 Ill. Adm. Code 104.416. Westwood states that it “waives hearing on this

petition.” Pet. at 11;

see

35 Ill. Adm. Code 104.406(j).

In this order, the Board first determines whether Westwood has satisfied the statutory

notice requirements for adjusted standard petitions.

See

415 ILCS 5/28.1(d)(1) (2006); 35 Ill.

Adm. Code 104.408, 104.410. The Board then identifies information deficiencies in

Westwood’s petition and directs Westwood to address specific deficiencies by filing an amended

petition as directed below. The Board then addresses Westwood’s motion for expedited

consideration.

NOTICE

Section 28.1(d)(1) of the Environmental Protection Act (Act) (415 ILCS 5/28.1(d)(1)

(2006)) and Section 104.408(a) of the Board’s procedural rules (35 Ill. Adm. Code 104.408(a))

require the petitioner to publish notice of filing the petition for an adjusted standard. These

authorities require advertisement in a newspaper of general circulation in the area likely to be

affected by the proposed adjusted standard. The notice must indicate that any person may cause

a public hearing to be held on the proposed adjusted standard by filing a hearing request with the

Board within 21 days of publication. 415 ILCS 5/28.1(d)(1) (2006); 35 Ill. Adm. Code

104.408(b). Publication must take place within 14 days after the petition is filed. 415 ILCS

5.28.1(d)(1) (2006); 35 Ill. Adm. Code 104.408(a);

see also

In the Matter of: Petition of SCA

Tissue North America, L.L.L. for an Adjusted Standard from 35 Ill. Adm. Code 218.301 and

218.302(c), AS 05-1 (Jan. 6, 2005) (dismissing petition for lack of jurisdiction when publication

of notice occurred after 14-day period). Within 30 days after filing the petition, the petitioner

must file a certificate of publication with the Board. 35 Ill. Adm. Code 104.410.

On April 20, 2009, Westwood filed a proof of publication documenting that the required

notice of the petition was published in the Belleville

News-Democrat

on April 14, 2009. The

Board finds that Westwood has met the notice requirements of the Act and the Board’s

procedural rules.

See

415 ILCS 5/28.1(d)(1) (2006); 35 Ill. Adm. Code 104.408, 104.410.

INFORMATION DEFICIENCIES

The Board finds that Westwood has not provided all of the information required by the

Act and the Board’s regulations for an adjusted standard petition.

See

415 ILCS 5/28.1(c); 35 Ill.

Adm. Code 104.406. Westwood notes that “[t]he regulations of general applicability (Parts 807

and 810) do not specify a level of justification or other requirements for an adjusted standard.”

Pet. at 7. In the absence of a specified level of justification, the Board cannot grant an adjusted

standard unless, “upon adequate proof by the petitioner,” it determines that Westwood has

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satisfied the factors at Section 28.1(c) of the Act.

See

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

Code 104.426. Below, the Board identifies those information deficiencies and directs Westwood

to cure them by filing an amended petition as directed below.

Under Section 104.406(a) of the Board’s regulations (35 Ill. Adm. Code 104.406(a)), the

Board requests the following additional information:

1.

Please cite the effective date of the standards from which an adjusted standard is

sought.

2.

Do the steelmaking slag fines fall into any of the categories listed on the left-hand

side of 35 Ill. Adm. Code 721.Appendix Z (Table to Section 721.102)?

3.

Are the steelmaking slag fines considered a “by-product” as defined in

721.101(c)(3)?

(a)

Would you please indicate whether the “steelmaking slag fines” are a “by-

product exhibiting a characteristic of hazardous waste” under 35 Ill. Adm. Code

721.Appendix Z?

(b)

Have the steelmaking slag fines been tested for characteristics of

hazardous waste?

(c)

Does Westwood’s screening protocol for incoming steelmaking slag fines

involve testing representative batches for hazardous waste characteristics?

4.

Would you please indicate whether the “steelmaking slag fines” are a listed

hazardous waste, such as K177, under 35 IAC 721.132(a): “[s]lag from the production of

antimony oxide that is speculatively accumulated or disposed of, including slag from

production of intermediates (

e.g

., antimony metal or crude antimony oxide)”?

5.

Please indicate whether the “steelmaking slag fines” fall under the any of the

exclusions in 35 Ill. Adm. Code 721, such as the following. Under Section

721.103(e)(2),

[t]he following solid wastes are not hazardous even though they are

generated from the treatment, storage, or disposal of a hazardous waste,

unless they exhibit on or more of the characteristics of hazardous waste:

* * *

(c)

Nonwastewater residues, such as slag, resulting from high

temperature metal recovery (HTMR) processing of K061, K062, or

F006 waste in the units identified in this subsection (e)(2) that are

disposed of in non-hazardous waste units, provided that these

residues meet the generic exclusion levels identified in the tables in

this subsection (e)(2)(C) for all constituents and the residues

exhibit no characteristics of hazardous waste. The types of units

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identified are rotary kilns, flame reactors, electric furnaces, plasma

arc furnaces, slag reactors, rotary hearth furnace/electric furnace

combinations, or the following types of industrial furnaces (as

defined in 35 Ill. Adm. Code 720.110): blast furnaces; smelting,

melting, and refining furnaces (including pyrometallurgical

devices such as cupolas, reverberator furnaces, sintering machines,

roasters, and foundry furnaces); and other furnaces designated by

the Agency pursuant to that definition. 35 Ill. Adm. Code

721.103(e)(2)(c).

In addition, under Section 721.104(B), the following solid wastes are not

hazardous wastes:

* * *

Fly ash waste, bottom ash waste, slag waste, and flue gas emission

control waste generated primarily from the combustion of coal or

other fossil fuels, except as provided in 35 Ill. Adm. Code 726.212

for facilities that burn or process hazardous waste. 35 Ill. Adm.

Code 721.104(b)(4).

* * *

Iron blast furnace slag. 35 Ill. Adm. Code 721.104(b)(7)(B)(xiii).

* * *

Basic oxygen furnace and open hearth furnace slag from carbon

steel production. 35 Ill. Adm. Code 721.104(b)(7)(B)(xviii).

* * *

Slag from primary zinc production. 35 Ill. Adm. Code

721.104(b)(7)(B)(xx).

6.

Do the steelmaking slag fines constitute an Illinois Special Waste?

Under Section 104.406(d) of the Board’s regulations (35 Ill. Adm. Code 104.406(d)), the

Board requests the following additional information:

7.

The petition states that Westwood’s contract with U.S. Steel “allows Westwood to

reject any fines which do not comply with the parameters necessary for Westwood’s

process.” Pet. at 7.

(a)

Would you please elaborate on the parameters Westwood evaluates to

determine acceptance?

(b)

Would you please provide specifics on the parameters and limits used to

determine acceptance?

(c)

Do any of the parameters include the suite of hazardous waste

characteristics for toxicity?

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8.

The petition states that “[t]he coarse fractions are segregated and then sold in bulk

form.” Pet. at 7.

(a)

Would you please elaborate on what is the end market for the bulk form of

the coarse fractions?

(b)

Would you please identify any contracts Westwood has with current or

potential buyers or end users?

9.

The petition states that “[i]t is also important to note that IEPA allows steel slag

fines to be used as a soil amendment. In fact, IEPA has approved the use of slag fines

from U.S. Steel’s Granite City Works – the same source of Westwood’s slag fines – as a

soil amendment at abandoned mines. (See Exhibit F.)” Pet. at 11. Exhibit F is a letter

from IEPA regarding a proposal “to place steel slag fines over the top of the mine refuse

to help neutralize the surface refuse and eliminate the acidic water seeps and runoff.”

Pet., Exh. F.

(a)

Is the potential end market for Westwood’s coarse fraction bulk form as a

soil amendment at abandoned mines?

(b)

Does Westwood have plans to work with the Illinois Department of

Natural Resources, Office of Mines and Minerals, Division of Abandoned Mine

Land Reclamation? If so, would you please comment on the number and

availability of soil amendment projects where Westwood’s bulk product could be

used?

(c)

If Westwood plans to use the steelmaking slag fines for land reclamation

purposes, does Westwood intend to make a demonstration that such use “will not

cause an exceedence of the applicable groundwater quality standards specified at

35 Ill. Adm. Code 620.”

See

35 Ill. Adm. Code 817.101(e).

10.

The petition states that the metallic particles from the medium, fine, and very fine

fractions “are combined with hydrated lime and molasses to create a briquette. The

resulting briquette is an end product of Westwood’s process, and is then sold. The

advantage of the briquette created by Westwood is that it is easy to handle, and allows for

use in a wide spectrum of furnace designs.” Pet. at 7-8.

(a)

Would you please elaborate on the end market for the briquettes?

(b)

Would you please identify any contracts Westwood has with current or

potential buyers or end users?

11.

The petition explains that the remaining fraction of non-metallic calcium

magnesium silicate is blended with water before transportation to a landfill for disposal.

Pet. at 8. The petition indicates this remaining fraction is a “small amount.”

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(a)

Would you please quantify the approximate percentage by weight or

volume attributable to the calcium magnesium silicate from the incoming

steelmaking slag fines?

(b)

Would you please elaborate on whether this waste is a listed or

characteristic hazardous waste, or Illinois Special Waste?

(c)

Would you also please comment on whether the waste will be disposed of

in Illinois?

12.

The Petition notes that “[i]t is also possible that the [non-metallic calcium

magnesium] silicate can be approved for use as landfill cover.” Pet. at 8 n.3.

(a)

Would you please elaborate on what would be required to do this?

(b)

Would a TCLP test or paint filter test be required to use the silicate as

landfill cover?

(c)

Would the landfill cover be a sellable product or would it simply be

approved for land application at landfills at no cost to Westwood Lands?

13.

Please define the area affected, the number of employees, the age of the facility,

and any pollution control equipment used.

14.

Exhibit D of the petition is a letter from the Mayor of the City of Madison. The

letter refers to the proposed facility as being “adjacent to the existing rail spurs and

acreage on which the slag may be stored. . . .” The Mayor also notes that “the transfer of

material from the trucks used for haulage to the plant will take place inside the facility

and thus prevent the release of fugitive dust that may be generated.” Pet., Exh. D.

(a)

Would you please elaborate on where and how the steelmaking slag fines

would be stored, both prior to and after processing.

(b)

If they are stored in the open air, does the Petitioner have plans to obtain

permits for storm water runoff?

(c)

Does storm water runoff require some kind of pretreatment?

(d)

Does the City of Madison have restrictions on the height of the storage

piles?

Under Section 104.406(f) of the Board’s regulations (35 Ill. Adm. Code 104.406(f)), the

Board requests the following additional information:

15.

The Petition states that “Westwood’s raw material, the slag fines purchased from

U.S. Steel, is not a ‘waste.’” Pet. at 2. The proposed conditions of the petition do not

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limit Westwood’s raw material to the slag fines purchased from U.S. Steel.

See id.

at 9-

10. The petition states that “there are other sources of steelmaking slag fines that are

potential sources of Westwood’s raw material.”

Id

. at 7 n.2. Would you please elaborate

on the testing Westwood would require or perform to determine whether the steelmaking

slag fines from other sources are acceptable?

16.

Westwood’s proposed adjusted standard language includes the following

provision: “Westwood retains control of the quality of steelmaking slag fines, including

the right to reject any steelmaking slag fines that do not comply with Westwood’s

standards for fines.” Pet. at 10.

(a)

Please address the need to include in the adjusted standard conditions

specifying the parameters of acceptable slag fines.

(b)

Please address the conditions under which Westwood would reject a load.

(c)

Please address the need for a provision that each load be tested for

hazardous waste toxicity characteristics.

(d)

Please address the need to include a condition in the adjusted standard

language regarding slag fines that are initially accepted and later found to exhibit

a characteristic of hazardous waste or contain asbestos, PCB, or a listed hazardous

waste.

(e)

Please address the costs for achieving the adjusted standard, including

testing.

Under Section 104.406(g) of the Board’s regulations (35 Ill. Adm. Code 104.406(g)), the

Board requests the following additional information:

17.

The petition states that “…IEPA allows steel slag fines to be used as a soil

amendment. . . . Thus, it is clear that the slag fines do not present an environmental

threat.” Pet. at 11.

(a)

Would you please comment on any testing that was done on the steel slag

fines that were proposed for use at the mine reclamation projects referenced in

Exhibit F,

i.e.

, “Florida Little Dog” in Gillespie and “Consol 7” in Staunton?

(b)

Besides any initial testing that was done, were there ongoing testing

requirements of the incoming slag or at the mine reclamation site itself?

(c)

In its unredacted portions, the Sales Agreement refers to various

categories of steelmaking slag fines available from U.S. Steel’s Granite City

Works: desulfurization slag fines, steel slag fines, and Ladle Metallurgy Facility

slag. What type of steelmaking slag fines were used in the mine reclamation

projects referenced in Exh. F?

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(d)

Under what conditions did IEPA approve of the use of slag fines from

U.S. Steel’s Granite City Works as soil amendment at abandoned mines?

18.

Of the various categories of steelmaking slag fines available from U.S. Steel

Granite City Works (“Desulfurization Slag Fines”, “Steel Slag Fines”, and “Ladle

Metallurgy Facility (LMF) Slag”), what type does Westwood plan to use under the

adjusted standard or finding of inapplicability? Unredacted language at paragraph 3.2 of

Exhibit A (Steelmaking Slag Fines Sales Agreement) states that “Westwood commits to

purchase and remove all current generation and segregated Desulfurization Slag fines. . .

.” Pet., Exh. A at 2. In addition, unredacted language at paragraph 3.3 of Exhibit A

states that “Westwood commits to purchase and remove all current generation and

segregated metallic Steel Slag Fines. . . .” Pet., Exh. A at 2. Are these the only types of

slag fines Westwood intends to purchase?

19.

In unredacted paragraphs 4.1 – 4.4 and 20.3, Exhibit A (Steelmaking Slag Fines

Sales Agreement) includes the following statements in:

QUALITY:

Par 4.1: “Westwood acknowledges that it is aware that most of the inventoried

Steelmaking Slag Fines at Granite City was produced prior to U. S.

Steel’s ownership of Granite City and that the Steelmaking Slag fines

may contain blast furnace slag, open hearth slag, and/or other

byproducts of the steelmaking process.”

Par 4.2: “U.S. Steel shall make no warranty on the quality of the Steelmaking

Slag Fines to be purchased.”

Par 4.3: “Prior to its purchase and in coordination with U.S. Steel, Westwood

may obtain reasonably representative portions of the inventoried

Steelmaking Slag Fines offered for sale hereunder for testing purposes.”

Par. 4.4: “In the event of a significant change in operating conditions at Granite

City Works, Westwood and U.S. Steel shall meet to discuss any

resulting changes to the quality of material. . . .”

* * *

ENVIRONMENTAL COMPLIANCE:

Par. 20.3: ”In the event that Westwood in the performance of the work on Granite

City property encounters material reasonably believed to be asbestos,

polychlorinated biphenyl (PCB) or other listed hazardous waste;

Westwood shall immediately report such condition to U.S. Steel in

writing.” Pet., Exh. A at 3-4, 14.

(a)

Would you please describe the methods and testing Westwood would use to

ensure the quality of the steelmaking fines obtained for Westwood’s proposed

applications?

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