ILLINOIS POLLUTION CONTROL BOARD
July 11,
1991
SEXTON ENVIRONMENTAL
)
SYSTEMS,
INC.,
)
)
Petitioner,
PCB 91-4
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
DISSENTING OPINION
(by J.D. Dumelle, and B. Forcade):
For the reasons articulated in our April
25,
1991 dissenting
opinion
in
the
instant
case,
we
continue
to
disagree with the
majority
finding
that
SES
is
somehow
not
subject
to
the
fee
requirements found in Section 22.2 of the Act.
In
addition,
and
more
disturbing,
remains
the
majority’s
interpretation of National Environmental Services Corp. v. Illinois
Pollution
Control
Board
and
Illinois
Environmental
Protection
Agency,
No. 4-90-0702
(4th Dist., April
11,
1991).
In this case,
the appellate court specifically stated that infectious hospital
waste is properly classified as hazardous waste and is thus subject
to the fee requirements of Section 22.2 of the Act.
Because the Appellate Court concluded in NESC, as we did, that
infectious
hospital
waste
is
properly
classified
as
hazardous
waste, the only remaining issue is whether SES “treats” the waste
in question.
There can be no doubt that it does.
In fact, in its
reconsideration order, the majority states:
In
the NESC
case,
it wa~snot
at
issue that
incineration
is
a
treatment method that can
eliminate
the
infectious
characteristics
of
the
waste.
In this case,
it
is
the issue.
SES has
yet to demonstrate that the IDroposed
treatment
method
is,
in
fact,
designed
to
change the biological character
of the waste
in
terms
of
eliminating
its
infectious
characteristics.
(PCB 91-4, July 11,
1991,
p.
2. Emphasis added.)
Here,
the majority explicitly admits that SES has a proposed
treatment
method.
Indeed,
it
would
be
ludicrous
to
suggest
otherwise.
Having established this, we are unable to ascertain how
the majority escapes the conclusion that SES should be subject to
the fees mandated in Section 22.2 of the Act.
The fact that the
treatment method
chosen by
SES does not demonstrate that
it
is
124—53
2
“designed to change the biological character of the waste in terms
of
eliminating
its
infectious
characteristics”
is
hardly
dispositive.
This
criteria
is
merely
one
of
many
under
the
extremely broad definition of “treatment”.
Section 3.49 of the Act
states:
“Treatment”
when
used
in
connection
with
hazardous waste means ~y
method, technique or
process, including neutralization, designed to
change the physical, chemical, ~
biological
character
~
composition
of
any
hazardous
waste so as to neutralize such waste or so as
to render such waste nonhazardous, safer for
transport,
amendable for recovery,
amendable
for storage,
or reduced in volume.
Such term
includes
any activity or processing designed
to
change
the
physical
form
or
chemical
composition of hazardous waste so as to render
it nonhazardous.
(Emphasis added.)
In order for the majority to find that SES
is not subject to the
fee provisions, all of the terms contained within this section must
be construed negatively
in relation to the
facts
in this
case.
This simply cannot be done.
We can only conclude that the rationale is that found in the
initial Opinion and Order.
That is, SES’ treatment method is not
an authorized treatment method under the provisions of 35 Ill. Adm.
Code 809.903 and 809.904 and
is therefore not subject to
a
fee.
Such a holding ignores the plain meaning of the Act, the direction
of the Appellate Court and sets
a precedent which is illogical.
The end result of the outcome in Sexton decrees that even though
a company treats
a hazardous waste,
so long as that treatment is
not Board-authorized, the company is not subject to a tipping fee.
We disagree.
The NESC court succinctly summarized the issue when it stated
“(b)ecause the waste NESC accepts meets
the first
part
of the
definition
of
hazardous
waste
it
was
properly
classified
as
hazardous waste subject to fee.”
(Slip.
Op. at 9).
Finally,
we
note
that
footnote
cited
in
the
majority’s
reconsideration Order.
To wit:
We note that HB 2491 has been adopted by the legislature.
If signed by the Governor,
it will become effective on
January
1,
1992.
Included
in
its provisions
is,
by
January
1,
1992,
the elimination of the
term,
and all
regulation
of,
“hazardous
hospital
waste”.
Instead,
“potentially infectious medical waste”,
newly defined,
will be regulated and it is specifically not a hazardous
waste,
but
rather
a
special
waste with
its
own
fee
provisions.
124—54
3
(PCB 91—4, July 11,
1991,
p.
2).
It is our understanding that H.B. 2491 has been passed by the
legislature and signed by the Governor.
Thus as of January
1,
1992, medical waste will no longer be hazardous, but fee provisions
will apply.
We have a situation,
therefore,
where SES will not
have to pay tipping
fees
for the duration
of
its experimental
permit simply because the treatment method it has chosen is novel
and unauthorized.
This
is true even though the courts and the
legislature have enacted and interpreted the applicable statues in
this case as requiring fees.
In short,
it seems to us that the
majority has held that NESC must pay the required fees of Section
22.2
because
it
uses
an
authorized
treatment
method
(i.e.,
incineration)
whereas SES does not.
SES,
then,
becomes the only
adjudicated entity within the state (past, present or future) which
accepts and treats
hazardous wastes without the burden
of
fees
pursuant to section 22.2 of the Act.
Because we find this result
arbitrary and unacceptable, we dissent.
(
(~,
D. Dumelle, P.E.
Bill Fo~cade
‘ard Member
Board Member
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby
certify
~ha~t
the
above
Disa~nti,~igOpinion
was
submitted on the
_____________
day of
(/&~~~~j
,
1991.
/
t//
/‘/‘
~
Dorothy M.4unn, Clerk
lllinois PdjjLution Control Board
124—55