ILLINOIS POLLUTION CONTROL BOARD
August
8,
1991
IN THE MATTER OF:
)
CERTAIN HAZARDOUS WASTES FROM
)
R9l-11
PRIMARY ZINC SMELTING
AND
)
(Emergency Rulemaking)
REFINING,
35 Ill.
Adm. Code
)
721.104(b) (7) (U)
)
PROPOSED RULE.
DISMISSAL ORDER.
ORDER OF’ THE BOARD
(by J.
Anderson) :1
Big River Zinc Corp. filed a petition for variance and
motion for stay on April
8,
1991.
In that proceeding,
docketed
as PCB 91—61,
Big River sought a variance from the July 1,
1991
termination date of the exemption at 35 Ill.
Adm. Code 721.104—
(b) (7) (U)
for certain of its wastes falling within the hazardous
waste listing K066.
By its Order of May 6,
1991 in PCB 91—61,
the Board denied the stay.
We simultaneously opened this docket,
by an Order dated May 6,
1991, to receive public comment on the
possibility of an emergency rule that might essentially delay the
effective date of the termination for as long as the Board felt
its authorization would allow.
The Board dismissed the PCB 91-61 proceeding July 11,
1991
on Big River’s June 28,
1991 motion to withdraw.
That motion
also included a motion to strike certain language contained in
the Board’s May
6,
1991 Interim Order in PCB 91-61.
The Board
construed that motion as one for reconsideration and deferred it
to this docket.
The Board will now consider that motion.
The
Board will also discuss the dismissal of this proceeding.
Motion for Reconsideration
In our Interim Order of May 6,
1991, the Board stated as
follows:
Nothing in the opinion
of the federal court in Ameri-
can Mining Con~ressv.
EPA,
907 F.2d 1179
(D.D.C.
1990),
purports to affect the effectiveness of the
K066 hazardous
wastej
listing.
Interim Order of May
6,
1991 at 12.
Big River Zinc’s Motion to Withdraw in PCB 91-61 urged the Board
to “at a minimum” strike this language in that Order or in R9l-
11.
In support of this motion, Big River argues in supplemental
comments filed June 28,
1991
(P.C.#6)
its interpretation of the
1. The Board appreciates the contributions
in this proceeding of
Michael J.
McCambridge, Board attorney.
124—2 95
2
June 20,
1991 USEPA comments (P.C.#5).
The Agency, by its com-
ments filed July 8, 1991
(P.C.#7), states that it does not sup-
port the position of Big River Zinc with regard to the effect of
the federal court opinion.
As more fully set forth, the passage in the May 6,
1991
Interim Order reads as follows:
Section 3009 of RCRA provides that a state may
delay adopting a RCRA provision where a federal court
has’ delayed or enjoined its effectiveness:
If
application of a regulation with respect
to any matter under this subtitle is post-
poned or enjoined by the action of any court,
no State or political subdivision shall be
prohibited from acting with respect to the
same aspect of such matter until such time as
such regulation takes effect.
.
42 U.S.C.
S
6929.
Thus,
if a federal court were to postpone or enjoin the
applicable rule, the Board could engage in some form of
action, not necessarily by issuing an order of stay,
that would have the effect of delaying the termination
of the exclusion.
.
Examination of the American Mining Congress opinion as
to K066 wastes reveals that the court remanded the
proceeding to USEPA “for a fuller explanation of its
decision to list K066” because “there is no adequate
explanation in the 1988 rule for the listing of K066.”
American Mining Congress v.
EPA,
907 F.2d at 1188-89.
Nothing in the court’s opinion purports to affect the
effectiveness of the K066 listing.
In fact, the court
showed great deference for USEPA’s judgement:
In reaching this decision we do not attempt
to substitute our judgment for the expert
judgment of
USEPA.
We do not conclude that
USEPA)
is incapable of adducing sufficient
evidence reasonably to support its decision
to list the materials at issue.
.
USEPA)
did not exceed its statutory
authority in treating the wastes as
.
.
subject to RCRA Subtitle C regulation.
Nor
did it run afoul of the APA notice and com-
ment requirement.
However,
USEPA
failed in
the 1988 Rule to articulate a rational con-
nection between the data on which it purpor-
125—296
3
tedly relied and its decision to reject the
petitioners’ admittedly significant challen-
ges.
.
American Mining Congress v. EPA,
907 F.2d at
1191 &
1192.
In this way, the federal court seems to have avoided
affecting the effectiveness of the USEPA K066 listing.
PCB’ 91-61 Interim Order of May 6,
1991 at 13-14.
Thus,
the assertion merely states that the American Mining
Congress decision does not explicitly affect the effectiveness of
the K066 listing.2
It does not set forth any opinion as to the
effect of the3federal district court’s remand of the K066 listing
in that case.
The determination of the effect of the remand on the effec-
tiveness of the waste listing is dependent on interpretation of
federal administrative law, and neither Big River nor the Agency
has cited any federal law to the Board that would assist the
Board
in making a determination of the effect of such a remand.
2.
A federal court is free within its discretion to deny a stay
of a rule while it is under review so as to not interfere with
its enforceability.
Abbott Laboratories v. Gardner,
387 U.S.
136,
155—56,
87
S.
Ct.
1507, 1519,
18 L.
Ed.
2d 681, 695—96
(1967).
The Board notes that if the District of Columbia court
had clearly reversed or vacated the K066 listing with its remand,
the listing would be a nullity.
3.
The American Mining Congress court concluded that the
listing was “arbitrary and capricious.”
907 F.2d at 1191.
The
anomaly created by the lack of a judicial or administrative stay
of an “arbitrary and capricious” rule that the court did not out-
right vacate or reverse raises questions as to its enforceabil-
ity as federal
law.
Moreover,
in apparent recognition of the questionable en-
forceability of the K066 listing, P.C.#5 indicates that although
USEPA will not hold the states to the July
1,
1991 deadline for
its adoption, it expects that the states will timely remove the
six wastes from the Bevill Amendment exemption——i.e.,
in part,
terminate the temporary exemption of 35
Ill.
Adm. Code 721.104—
(b) (7) (U).
The K066 listing, and not removal of certain of the
wastes Bevill Amendment exemntion, was the subject of the Ameri-
can Mining Congress appeal and ultimate remand.
USEPA observes
that because the Board has removed the six wastes from the Bevill
Amendment exemption,
Illinois “is in compliance with the Federal
regulations.”
P.C.#5 at
2.
125—29
7
4
Further, this
is not an issue the Board purported to decide,
since this was not an issue necessary to the issue before Board
on May 6.
All the Board noted in the challenged passage of the
Interim Order discussion was that there was no operative express
stay or injunction relating to the 1(066 listing for the purposes
of RCRA Section 3009,
42 U.S.C.
§
6929.
For the foregoing reasons, the Board will deny reconsider-
ation.
The Board will not strike the challenged language in its
Interim Order of May 6,
1991.
Dismissal of this Proceeding
The USEPA comments
(P.C.#5)
indicate that TJSEPA will not
require the Board to adopt any of the five smelter listings
(1(064, K065,
1(066,
K090,
and 1(091)
that are the subject of the
remand in American Mining Congress v.
EPA,
907 F.2d 1179
(D.D.C.
1990).
This is because USEPA has not yet issued any “final rule
providing the explanation that the Court ordered
.
.
.
.“
P.C.#5
at
1.
USEPA adopted these listings September 13,
1988.
53 Fed.
Reg.
35420
(Sept.
13,
1988).
The Board followed suit on Septem-
ber
13,
1989,
effective November 13,
1989.
RCRA Update, USEPA
Regulations
(8—1—88 through 12—31—88),
No. R89—1,
103 PCB 215,
308
(Sept.
13, 1989); ~
13 Ill. Reg.
18300
(Nov.
27,
1989).
Contrary to its assertions with regard to the basic K066
waste listing, USEPA states that the Board must update the state
RCRA program to remove certain wastes
(including certain K066—
listed wastes) from the Bevill Amendment exemption.
USEPA ter-
minated that exemption on September
1,
1989.
54
Fed.
Reg.
36641
(Sept.
1,
1989).
The Board adopted an identical-in-substance
rule effective August 22,
1990.
RCRA Update. USEPA Regulations
(7—1—89 through 12—31—89),
No. R90—2,
113 PCB 163,
187—89
(July
3,
1990); RCRA Update, USEPA Regulations
(7-1-89 through 12-31-
~j,
No.
R90—2,
114 PCB 477, 478
(Aug.
9,
1990);
14
Ill.
Reg.
14401
(Sept.
17,
1990).
Nowhere during the course of this proceeding or PCB 91-61
has Big River requested that the Board repeal the basic K066
listing.4
Rather, the focus of the Big River challenge has
remained pn the termination of the temporary exemption of 35
Ill.
Adm. Code 721.104(b) (7) (U), so PCB 91-61 and this docket have
focused on this termination of the Bevill Amendment exemption.
4.
Nevertheless,
in light of USEPA’s comments, the Board is
today amending the 1(066 listing in R91-l to reflect the American
Mining Congress remand.
We also amend the Bevill Amendment
exemption in that docket, but only to the extent necessary to
remove ambiguity as to our intent as to the K066 listing.
125—298
5
The Board believes that appropriate action is possible, and
it today undertakes that action in another docket.
R91-1 is the
most recent RCRA update docket
(for the period July
1,
1990
through December 31,
1990), and the Board is today adopting a
final rule in that docket.
Since Part 721
is open in that pro-
ceeding, the Board has added a Board Note to Section 721.132 at
the K066 listing.
That Board Note references the remand in the
American Mining Congress case, notes that the enforceability of
those listings as a matter of federal law is cast in doubt, and
essentia~Llystates the 1(066 listing is not enforceable in Il-
linois until USEPA affirmatively responds to the remand in that
case.
This approach is consistent with the USEPA assertion that
it will not insist that the states adopt these listings-—at least
until it issues a final order in response to the remand.
The
overall effect of this Board Note is that the Board will not give
the 1(066 listing any more effect in Illinois than the federal
listing has in unauthorized states.
The opinion accompanying the
Order of the Board in R9l-1 will discuss this Note and the
Board’s rationale more fully.
For the foregoing reasons, the Board determines that there
is nothing to be gained at the present time by further pursuit of
this emergency rulemaking.
Therefore, the Board hereby dismisses
this proceeding.
IT IS SO ORDERED.
B. Forcade concurred.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Boar~,do hereby certify that the above Order was adopted on the
__________
day of
_____________,
1991,
by a vote of
7c
/~
~
Dorothy N.
G,~inn, Clerk
Illinois Pollution Control Board
125—299