BEFORE THE ILLINOIS POLLUTION CONTROL BOARDS E
CE IVED
CLERK’S OFFICE
INTHEMATTEROF:
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PROPOSED SITE
SPECIFIC WASTE
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R06-08
STATE OF ILLINOIS
WASTE REGULATION APPLICABLE
)
(Site-specific rulemalcii~Iution
Control
Board
TO SILBRICO CORPORATION
)
land)
(35 Ill. Adrn.
Code Part
810)
)
NOTICE OF FILING
TO:
Joim Knittle
Mark Gurnik
Hearing Officer
Assistant Counsel
Illinois
Pollution Control Board
Illinois Environmental Protection Agency
1021
North Grand Ave. East
1021
North Grand Avenue East
Springfield, Illinois 62794
Springfield, Illinois
62794
Elizabeth S. Harvey
Michael J. Maher
Swanson, Martin &
Bell, LLP
One IBM Plaza, Suite 3300
Chicago, Illinois 60611
PLEASE TAKE NOTICE that we have on October 7,
2005,
filed the attached
APPEARANCE
and MOTION TO DISMISS with the Clerk of the Illinois Pollution
Control Board,
copies ofwhich are hereby served upon you.
a
CHRIS
OP
RZAN
Assistant Attorney General
Office of the Attorney General
Environmental Bureau
188 W. Randolph Street, 20t~~
Floor
Chicago, Illinois 60601
312
814-3532
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED
SITE SPECIFIC WASTE
WASTE REGULATION APPLICABLE
TO SILBRICO CORPORATION
(35
Ill. Adm.
Code Part 810)
RECEIVED
)
CLERK’S OFFICE
)
R06-08
OCT
072005
)
(Site-specific rulemaking-
OF ILLINOIS
)
land)
Pollution Control Board
)
)
APPEARANCE
The undersigned hereby enters his appearance in this matter on behalf ofthe
People of the State ofIllinois.
Environmental Bureau
188 W. Randolph Street,
20th
Floor
Chicago, Illinois
60601
312 814-3532
Christopher P.
Assist
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
IN THE MATTER OF:
)
CLERK’S
OFFICE
)
(~nt
PROPOSED
SITE SPECIFIC WASTE
)
R06-08
U’~4
0
2005
WASTE REGULATION APPLICABLE
)
(Site-specific rulemaking51~~~
OF ILLINOIS
TO SILBRICO CORPORATION
)
land)
Pollution
Control Board
(35 Ill. Adm. Code
Part 810)
)
MOTION TO DISMISS
NOW COMES the PEOPLE OF THE
STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney General ofthe
State of Illinois, and, pursuant to 35
Ill.
Adm. Code
101.2 12,
moves the Illinois Pollution Control Board to dismiss
thepending site-specific
rulemaking, and,
in support thereof, states and alleges as follows:
I.
INTRODUCTION AND STANDARDS
The Petitioner,
Silbrico
Corporation, filed this Petition for Site-Specific
Rulemaking (“Petition”) on July 19, 2005.
Contained with the Petition is a service list
that lists service as having been made on the Illinois Environmental Protection Agency
and the Illinois
Department ofCommerce
and Economic Opportunity (“DCEO”).
The Petition purports to be authorized by Section 27 ofthe Illinois Environmental
Protection Act, 415
ILCS 5/27(2004).
The Petition asks the Board to add a provision to
Part 810 of Illinois Administrative Code Title 35
allowing it to dispose of”perlite” at a
clean construction and demolition debris facility, as that term is defined at 415
ILCS
5/3.160(b).
The Board’s rules provide that
a rulemaking petition may be dismissed for failure
to comply with
content requirements or for inadequacy.
35
Ill. Adm. Code
101.212(a) &
(c).
Any person may file a motion challenging the “statutory authority or sufficiency” of
a rulemaking petition.
35
Ill.
Adm.
Code
101.212(d).
II.
PETITION SHOULD BE DISMISSED FOR FAILURE TO COMPLY
WITH 35 ILL.ADM. CODE
102.208
Section
102.208 ofthe Board rules provides that petitions
for site-specific
rulemakings
should be
served on the “Agency, DNR and the Attorney General.”
35
Ill.
Adm.
Code
102.208.
The Petition, on its
face, fails
to comply with this requirement.
The
Petitioner served the Agency and the DCEO, but, its
service list includes neither
Department of Natural Resources nor theAttorney General.
Because it failed to
comply
with 35
III. Adm.
Code
102.208, the Petition should be dismissed.
III.
PETITION SHOULD BE DISMISSED AS WITHOUT STATUTORY
AUTHORITY
A.
Petitioner’s
manufacturing process waste
is not generated by construction or
demolition
activities and thus not within the scope of 415
ILCS 5/3.160(b)
The Petition cites Section 27 ofthe Act,
415
ILCS
5/27,
as authority.
However,
that provision does not provide sufficient authority for the request.
The Petitioner seeks
to have manufacturing process wastes reclassified as clean construction and demolition
debris.
By so doing, the Petition creates
a conflict between the proposed rule and the
statutory definition ofclean
construction and demolition debris.
Both subsections ofSection 3.160 of the Act, 415 ILCS
5/3.160,
apply to
construction and demolition debris.
The provision specifically relied upon by the
Petitioner, Section 3.160(b), reads, in pertinent part, as follows:
“Clean construction
or demolition debris” means
uncontaminated broken concrete without protruding metal
bars, bricks, rock, stone, reclaimed
asphalt pavement, or
soil generated from construction or demolition
activities.
415
ILCS
5/3.160(b)(emphasis added).
The Petition attempts
to justify the relief in
the Petition by arguing that the perlite
is a rock, and that
thus it falls within the definition of clean
construction and demolition
2
debris.
Regardless ofwhether this material actually can be considered
a rock
within the
meaning ofthe statute, nowhere
in the Petition does the Petitioner even claim that the
materials are “generated from construction or demolition activities.”
Quite the contrary,
the Petition specifically
asserts that “during
the manufacturing process, several
wastes are generated, including off-specification perlite and fugitive perlite
from
baghouse dust collections.”
Petition at
1
(emphasis added).
Thus, the Petitioner, in no
uncertain terms, seeks to have manufacturing process wastes categorized as construction
and
demolition debris.
Because, by the Petitioner’s own assertion, the material the Petitioner seeks to
reclassify is not generatedby construction or demolition activities,
and thus does not
come within the definition of Section 3.160(b) of the Act, this Petition cannot be granted
consistent with the statute.
Because it cannot be granted consistent with the plain
language of the statute, the Petition should be dismissed as without authority.
B.
Petitioner cannot amend a statute through a site-specific regulation
Inthe Petition, the Petitioner is essentially requesting that the Board expand the
scope ofSection 3.160(b) of the Act,
415
ILCS
5/3.160(b), through a regulation.
The
only way a manufacturing process waste can come within the scope of Section 3.160(b)
ofthe Act would be through a legislative amendment to that section.
Nowhere is
authority granted to extend the explicit scope of Section 3.160(b) ofthe Act by a
rulemaking.
An administrative agency cannot extend the operation of a statute by regulation.
Montgomery
Ward L?fe Ins.
Co.
v.
State, Dept.
ofLocal
Government Affairs
89
Ill.App.3d 292, 302,
411
N.E.2d 973,
980 (is Dist
1980).
To
the extent that a
3
regulation conflicts with a statute, the regulation is invalid.
Greaney v. Industrial
Commission,
--
Ill. App.
3d
--,
832
NE2d 331,
353
(1st
Dist 2005).
Because the language of Section 3.160(b) of the Act, 415
JLCS
5/3.160(b),
limits
its applicability to
materials generated from construction and demolition activities,
and
does not extend to manufacturing process wastes, a rule that
extends the definition to
manufacturing process wastes would be in
direct conflict with Section 3.160(b) ofthe
Act.
As such, it would be invalid.
Because the Petition, if granted, would result in
an
invalid rule, it should be dismissed.
IV.
CONCLUSION
For the reasons stated, this Petition is fatally flawed and
should be dismissed.
The
rule the Petitioner seeks would be in conflict with
a statute
and could lead to
a massive
and legislatively unauthorized expansive of the scope ofconstruction and demolition
debris regulatory scheme in the State ofIllinois.
WHEREFORE, thePEOPLE OFTHE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General ofthe State of Illinois, requests that the Board dismiss this
Petition.
RespectfUlly submitted,
PEOPLE OF
THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of
the State ofIllinois
Christoph
r P.
Assistant Attorn
neral
Environmental Bureau
188 W. Randolph Street, 20tl~
Floor
Chicago, IL
60601
312 814-3532
4
CERTIFICATE OF
SERVICE
I, Christopher P. Perzan, hereby certify that I have served the attached APPEARANCE
and MOTION TO DISMISS
upon the following parties:
John Knittle
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Ave. East
Springfield, Illinois 62794
Elizabeth S. Harvey
Michael J. Maher
Swanson,
Martin & Bell,
LLP
One IBM Plaza,
Suite 3300
Chicago, Illinois
60611
Mark Gurnik
Assistant Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield, Illinois 62794
by depositing the same in the U.S. Mailon October 7, 2005 on or before
5
pm at 100 W.
Randolph Street, Chicago, Illinois.
~oprPr~
