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August 15, 1997


Petition for Review of an Order of the Pollution Control Board. No. R95-20.

Rehearing Denied September 16, 1997. Released for Publication October 9, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Hoffman

The Honorable Justice HOFFMAN delivered the opinion of the court:

The petitioner, Horsehead Resource Development Company, Inc. (Horsehead), filed this appeal for review of an Illinois Pollution Control Board (Board) decision adopting a federal hazardous waste delisting of electric arc furnace dust (EAFD) treated by respondent Conversion Systems, Inc. (CSI). On appeal, Horsehead claims that the Board exceeded its statutory authority under the Illinois Environmental Protection Act (Act) by promulgating the delisting through the identical-in-substance procedure under section 7.2(a) of the Act (415 ILCS 5/7.2(a) (West 1994)). We affirm.

This administrative review action concerns methods for treating EAFD, an emission from the primary production of steel in electric arc furnaces. Horsehead petitions for review of the Board's decision to exclude from hazardous waste regulation the EAFD that is generated and treated by the "Super Detox" process at CSI's plant in Sterling, Illinois.

The federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. sec. 6901 et seq.) is the foundation for regulation of hazardous waste in the United States and provides a comprehensive regulatory structure to manage such wastes. The United States Environmental Protection Agency (USEPA) is responsible for identifying hazardous wastes, and the RCRA provisions regulate the generation, treatment, storage, and disposal of such wastes.

Until 1991, EAFD was listed hazardous waste No. K061-- "emission control dust-sludge from the primary production of steel in electric furnaces." Listed hazardous wastes are those which the USEPA deems to be hazardous as a class, and "listing" a waste is a regulatory determination that the substance will be placed on the USEPA list of hazardous wastes. 42 U.S.C. sec. 6921. Conversely, "delisting" a waste is an exclusion from hazardous waste control after the USEPA makes a determination that, under specific conditions, a particular waste previously listed as hazardous should no longer be considered hazardous. 42 U.S.C. sec. 6921. As a listed waste, EAFD was subject to RCRA land disposal restrictions for hazardous wastes, including stringent regulatory and recordkeeping requirements. These restrictions render hazardous waste disposal much more costly than non-hazardous waste disposal.

Section 6926 of RCRA allows the USEPA to authorize qualified states to implement a hazardous waste program within the state in lieu of the federal program. 42 U.S.C. sec. 6926(b). Accordingly, such states are authorized to make their own delisting decisions. The USEPA authorized Illinois' hazardous waste management program in 1986. See 51 Fed. Reg. 3778 (Jan. 30, 1986). As an authorized state, Illinois may operate a more stringent RCRA program than the federal program, or it may adopt federal delistings and remain in "lockstep" with the USEPA, but it may not operate a program less stringent than the federal program without jeopardizing its RCRA authorization. See 42 U.S.C. secs. 6926(e), 6929.

Illinois' implementing authority for RCRA is the Act (415 ILCS 5/1 et seq. (West 1994)), which authorizes the Illinois Environmental Protection Agency (IEPA) to enforce the state's hazardous waste management program requirements. The responsibility for developing and promulgating environmental regulations in Illinois rests with the Board. 415 ILCS 5/5 (West 1994).

In 1991, the USEPA excluded from listed hazardous waste any EAFD treated by the high temperature metals recovery process used by Horsehead. EAFD treated by CSI's "Super Detox" process was not delisted in the USEPA's decision. Since EAFD treated by Horsehead could thereafter be transported and disposed of at a considerably lower cost, Horsehead enjoyed a competitive advantage.

In 1993, CSI pursued USEPA approval for the delisting of EAFD treated by its "Super Detox" process. CSI submitted information on the process and included testing data. After considering the written data and public comments received from numerous sources, including Horsehead, the USEPA delisted EAFD treated by CSI's process. 60 Fed. Reg. 31107 (June 13, 1995). Accordingly, EAFD treated by this process was no longer considered hazardous waste as long as it met the USEPA delisting criteria, which includes certain testing requirements and disposal in licensed RCRA landfills.

Horsehead appealed the USEPA's decision to the Court of Appeals for the District of Columbia. Horsehead Resource Development Co. v. USEPA, slip op. No. 95-1286 (D.C. Cir. Filed June 1, 1995). At the time that CSI filed its appellate brief, the federal appellate court apparently was considering jurisdictional motions challenging Horsehead's standing to appeal.

Since EAFD treated by CSI's "Super Detox" process continued to be regulated as a hazardous waste under Illinois law, CSI then requested that the Board adopt the USEPA delisting. In February 1996, the Board issued a proposed opinion adopting the federal delisting. In the Matter of RCRA Update, USEPA Regulations, No. R95-20, 20 Ill. Reg. 2651 (Feb. 16, 1996). In considering this issue, the Board implemented an expedited process ...

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