ILLINOIS POLLUTION CONTROL BOARD

October

2,

1986

IN THE MATTER OF:

HAZARDOUS WASTE PROHIBITIONS

)

R86—9, Docket A

DISSENTING OPINION

(By R.

C.

Flemal):

I dissent

from the Board’s action today for the reason that

the facts of the matter do not justify adoption of an Emergency

Rule.

THREAT TO THE PUBLIC INTEREST, SAFETY OR WELFARE

The conditions necessary for

the Board

to promulgate

an

Emergency Rule are not present

in the instant matter,

The Act

specifically identifies that an Emergency Rule

is appropriate

where

the Board can find “that

a situation exists which

reasonably constitutes

a threat

to

the public interest, safety or

welfare”,,

I do not see

that the public

interest, safety or

welfare would be threatened

in the absence of today’s proposed

Board action,

Rather,

Board adoption of

a Emergency Rule now may

actually create

such a threat,

There might conceivably be

a threat

to

the public interest,

safety or welfare

if failure of the Board

to adopt emergency

rules left

a vacuum wherein the directive of 39(h)

could not be

carried out,

However,

this

is clearly not the case,

The Agency

has given an extensive apprisal of the guidelines

it intends

to

follow in implementing 39(h),

Thus,

a clearly defined direction

already exists,

A clear threat to

the public interest, safety or welfare

might also

exist

if the direction that the Agency has taken were

obviously faulty.

This

is also clearly not the case,

While

there may remain some uncertainties which will have

to be worked

out by the Agency,

and some facets of the Agency’s direction will

undoubtedly require adjudication, these are no more numerous nor

complex than is

to be reasonably expected when any new

authorization procedure “comes on line”,

Moreover,

it cannot be

overlooked that

three of

the

four principal groups who offered

testimony

in this matter,

the Agency, CBE,

and Waste Management,

unanimously urged that the Agency’s guidelines be given

a fair

test;

this testimony must be given weight against

a determination

that

a threat

to

the public

interest, safety and welfare exists,

It might be argued,

in

fact, that Board adoption of an

Emergency Rule

at this time would create

a threat

to

the public

interest, safety

and welfare, rather

than alleviate one,

By

inserting itself

into

the 39(h)

authorization process at this

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time,

the Board will certainly alter

and possibly disrupt

a

process which

is already well advanced and which is being carried

out under

a very tight

time limitation.

Disruption now would

seem

to constitute

a much clearer threat to the public interest

than could be anticipated by abidance with any of the Agency’s

guidelines.

The Board’s desire

to have regulations

in place

for January

1,

1987,

is occasioned by a sincere desire

to eliminate confusion

as of this critical date,

However,

in

so doing, the Board

seemingly fails

to recognize that the truly critical date

for

having the implementation procedures

for 39(h)

identified

is not

January

1,

1987, but a date already past.

This date was the time

when applicants were required to draft and submit

their

applications

to the Agency,

Should these many applications need

to be redrafted and resubmitted

as

a consequence of

a Board

action,

the public

interest could be severely compromised;

confusion could not be escaped

as applicants

and the Agency faced

the difficult task of trying to complete the authorization

process

in the few weeks remaining before January

1,

1987,

Another source of confusion which would appear

to be

a

consequence of the Board

adopting

an Emergency Rule

at this stage

arises from the fact that 150 days from enactment of the

Emergency Rule the rule would

lapse

and nothing would be

in

place,

At this time, neither the Board’s regulations nor those

Agency’s guidelines overruled by the Board’s Emergency Rule would

be existent,

How,

in these circumstances, does the Agency

continue

to carry out the authorization process?

Does the

Board’s lapsed rule have weight?

These are fundamental questions

to

which

I don’t see obvious answers, and

to which

I am concerned

that the majority has not given due consideration,

Seemingly implicit in the Board’s anticipation of adopting

an Emergency Rule

is the belief

that, upon its expiration,

the

rule can be altered

to

reflect evolution

in the Board’s

thinking,

While technically correct, this

is a very poor defense

for the Board acting precipitously when demonstration of threat

to the public

interest,

safety and welfare

is not present,

Finally,

to argue,

as some have, that failure of the Board

to adopt rules now would encourage midnight dumping and the like,

and thereby provide threat to public safety and welfare,

is not

very

realistic,

There

is absolutely no reason

to suppose that

midnight ~dumpingwould have greater encouragement under

the

Agency’s guidelines than under

the Board’s emergency rule.

COMM~NTPERIOD ON EMERGENCY RULE

It has been argued that

it is appropriate,

in the instant

matter,

for the Board

to place

its Proposed Emergency Rule out

for comment,

I cannot agree.

If the concept of an Emergency

Rule

is flawed now,

it will be as

flawed two

or three weeks

from

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nov.

Perhaps

it will be even more flawed due

to greater

intrusion into the short time remaining

for

the permit process

to

be carried out,

An

Emergency Rule therefore should

not be

adapted

at the end of the comment period,

and the public should

not be given

the impression that it might be adopted.

This situation

is significantly different from the

circumstance where

the Board puts out

a proposed non—emergency

rule for public comment,

as

in fact the Board did

in its June 11,

1986,

action

in this matter,

There the Board’s intent

is clearly

to begin a long dialogue process, which involves ample

opç~ortunityfor interested

individuals and groups

to act and

react,

propose and counter—propose,

These elements are absent

in

the

instant matter.

REFLECTIONS RELATIVE TO THE NORMAL RULEMAKING PROCESS

The Board’s regular

rulemaking process

is occasionally

critized for

its lack of speed.

However,

lack of speed

is not

the deficiency of the process, but rather

its crowning

strength.

The rulemaking process is intentionally slow, because

in being slow

it

is guaranteed

to be deliberate,

in the best

meaning of this word,

An Emergency Rule

in the

instant matter would contravene

this intentionally deliberate strength of the Board’s rulemaking

process,

Except

for

the quite limited opportunity

to submit

written comments, interested

individuals and groups would have

none of the opportunities for participation

in rulemaking

to

which they are entitled,

There

is

no good

in attempting

to

counter this argument by citing

the fact that the Board has

already held four hearings under R86—8, because what the Board

has proposed

today

is such

a significant departure from that

which was before the Board

at the time of the hearings.

Moreover,

the

four hearings were but

a fraction of the

opportunity to participate

to which the public and the State are

entitled,

CONTENT QF THE EMERGENCY RULE

Because

I am of the belief that the Board cannot adopt an

Emergency Rule

in this matter,

I do not intend

to present my

perspective on the content of the Proposed Emergency Rule, other

than to make a few general observations,

For one,

I believe that

the Proposed Emergency Rule constitutes

a substantial improvement

over the rule as originally proposed on June 11,

It should be

noted that the improvement has arisen,

in major measure, because

the regular

rulemaking procedure has provided

the Board with the

information necessary to make the improvements, and

is therefore

futher

testimony

to the strength of this procedure,

At the

same time,

I do not think the Proposed Emergency Rule

is fully acceptable,

Significant problems yet need

to be

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-~

resolved with respect to such aspects as

the range of the

disposal facilities covered by the rule and the criteria which

the Agency must consider

in reviewing permit applications.

There

are also aspects of a fully developed rule which are not

addressed

in the Proposed Emergency Rule;

these will

need

resolution,

The only way

to reach a final determination on these

matters is via the same route used

to achieve the

improvement

witnessed by the Proposed Emergency Rule.

That is, the regular

rulemaking process must be employed.

I

ant aware that it

is impossible for

the Board, given the

statutory conditions

for adoption of rules,

to complete

the R86—9

rulemaking

for some significant time,

I am also aware that the

Board may have to address some of the unresolved matters in

permit appeals prior

to its ability to promulgate a full rule,

While

this may not constitute

the most ideal

of all possible

worlds,

it is,

at

the worst and given

the fatalities of Emergency

Rule promulgation and

the necessity of following regular

rulemaking procedures,

the least of possible evils,

SUMMARY

None of

the foregoing should be construed

to suggest that

it

is my belief that there is

no place

for emergency rulemaking

in

Board actions,

There most clearly

is such

a place, but the

instant matter

is not an example.

For this reason

I dissent,

~oñal

C,

Flemal

Board Member

I,

Dorothy

M, Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the

ab9.ye Dissenting Opinion was

submitted on the

~

day of

~

,

1986.

orothy M,

unn, Clerk

Illinois

Pollution

Control

Board

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