ILLINOIS POLLUTION CONTROL BOARD

June 30, 1988

PEOPLE OF THE STATE OF

ILLINOIS,

Complainant,

v.

)

PCB 84—93

S.C. INDUSTRIES, INC.,

Respondent.

KATHLEEN SMITH, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF THE PEOPLE

OF THE STATE OF ILLINOIS; AND

BERTRAM STONE, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by B. Forcade):

This matter comes before the Board on the July 18, 1984

Petition of the People of the State of Illinois (hereinafter

“People”) complaining of J. William Carison doing business as

S.C. Industries

(hereinafter “Sd”). The

complaint charges Sd

with numerous violations of the Board rules governing hazardous

waste management, see 35 Ill. Adm. Code 700—725 (1984), adopted

pursuant to the Illinois Environmental Protection Act (“Act”) and

the Federal Resource Conservation and Recovery Act of 1976, as

amended (hereinafter “RCRA”). See 42 (J.S.C. Sec. 6901 et seq.

(1987); 111. Rev. Stat. ch. 111—1/2, par. 1022.4 (1988).

SCI filed a Motion to Strike and Dismiss on August 2, 1984,

and the Board responded in its September 20, 1984 Order by naming

SCI as the respondent and appropriately recaptioning the case.

The People responded with a First Amended Complaint filed October

2, 1984. Sd answered this complaint on October 16, 1984. The

People filed their Second Amended Complaint on December 13, 1984

containing the same basic allegations as the prior complaints.

SCI answered this Second Amended Complaint on May 6, 1985.

Public hearings were held on August 1, 2, 8 & 19, 1985. No

member of the public attended. The People filed their post—

hearing brief on October 4, 1985. Sd filed a Motion for

Extension of Time for Filing Briefs on November 21, 1985. The

People filed a Motion to Close Record on December 26, 1985. SCI

filed its post—hearing brief on January 8, 1986 on motion. The

Board ordered the record closed on January 25, 1986 by its

January 9, 1986 Order. The People filed their Reply Brief on

January 24, 1986.

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I. Facts

SCI is an Illinois corporation engaged in the business of

electroplating nickel, chromium, and brass onto wire and tubular

products at 2350 North 17th Street in Franklin Park, Illinois.

It has continuously engaged in this business at this location

since 1969. SCI occupies a 31,000 square foot leased plant and

employs 50 to 60 persons full—time. (R. 307—13). SCI produces

several hazardous wastes from its plating operations for ultimate

disposal. (P. Ex. 18).

The People charge Sd with non—compliance with various Board

regulations governing the proper management of these wastes. The

alleged non—compliance arose out of numerous Illinois

Environmental Protection Agency (hereinafter “Agency”)

inspections of Sd during 1983 and 1984. The Agency sent a

notice of apparent violations to SCI on April 22, 1983. (P. Ex.

15). The People subsequently filed this action on August 24,

1984. The details of the allegations are reserved for later

discussion, but it is presently useful to briefly describe them

as contending that SCI committed acts of both transient and

continuing non—compliance with various of the Board’s rules

governing hazardous waste generator and hazardous waste

treatment, storage, and disposal (hereinafter “T/S/D”) facility

standards.

The Board concludes that SCI was in non—compliance with

various of the the hazardous waste generator and T/S/D facility

regulations. The Board believes that certain actions by SCI can

readily bring about full compliance. The Board’s Order will

require these actions. It will also require SCI to pay an

aggregated administrative penalty of $10,500 for its former non-

compliance.

II. Preliminary Discussion

Preliminary to its analysis of the substance of the several

counts of the complaint, the Board feels it appropriate to take a

broader look at this case. Initially, the Board examines the

character of the case. It then gives an overview of its RCRA

regulations. Finally, this preliminary discussion gives a

generalized outline of the complaint.

The People characterize the nature of Sd’s non—compliance

as willful and egregious. SCI counters that it has made good—

faith efforts to correct its “technical” non—compliance, and that

no harm has resulted from its non—compliance. It is worthy of

note that the major purpose of enforcement actions is to assure

compliance. The appropriateness of any administrative action to

correct non—compliance is largely dependent on the actions of the

respondent under the circumstances. Repeated, continuing, or

flagrant non—compliance can indicate the need for stronger

administrative action to encourage compliance. On the other

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hand, a demonstrated ready willingness of the respondent to

promptly correct its non—compliance, that its non—compliance was

based on a good—faith misunderstanding of applicable law or

regulations, or other mitigating circumstances, can indicate that

less administrative action is necessary. The relief granted will

depend on the facts established by the record in the individual

case.

This case, like most, lies between the extremes: the record

indicates that SCI has not so willfully remained in non-

compliance as the People contend, yet it also indicates that SCI

has not acted in the full good faith that it describes, and that

SdI’s non—compliance was not merely “technical.” Part of SdI’s

non—compliance was purely transient, but other parts were

continuing in nature. Part of SCI’s non—compliance arose from

certain mutual misunderstandings of the regulations between SCI

and the Agency. Some of this continuing non—compliance was

unnecessarily prolonged by SCI’s apparent intransigence prior to

the filing of this complaint. The record also includes certain

key disputed facts between the Agency and SCI, and certain

internal inconsistencies make central portions of SCI’s version

of these facts less credible. The record includes evidence that

would tend to indicate that SCI took a cavalier attitude towards

hazardous waste compliance, but the Board expressly makes no

finding in this regard. The record supports the conclusion that

SCI’s non—compliance was not singularly egregious, but that SdI

could have acted in a more straightforward, diligent manner to

more fully and promptly achieve compliance with the Board’s RCRA

regulations. The ready compliance of the regulated community is

necessary to the continuing vitality of the RCRA program and the

achievement of the regulatory objectives.

The intent of the RCRA rules is to follow certain wastes

defined as “hazardous wastes” from “cradle to grave” to assure

their proper management and ultimate disposition. Their purpose

is to minimize the risk of harm to human health and the

environment resulting from the management and disposal of these

wastes. The RCRA regulations impose various requirements on

those engaging in various activities relating to hazardous

wastes. The three major regulatory categories of hazardous waste

activities include generation; transportation; and treatment,

storage, and disposal of hazardous wastes. The nature of a

person’s hazardous waste—related activities will govern which of

these three major categories of rules apply to their activities

and, often, which sub—category as well.

A key element running throughout the generator, transporter,

and T/S/D facility standards requires hazardous waste

manifesting. The generator of the waste initiates a manifest

prior to shipment, indicating a description of the waste, its

packaging and quantity, its intended destination, the designated

transporters, and the date of shipment. The transporter signs

the manifest upon receipt and can only deliver the waste as

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designated on the manifest. The receiving T/S/D must sign the

manifest, verify the information it contains with regard to the

wastes received, and return a copy to the generator to verify

receipt. All persons participating in the transfer of the

consignment of hazardous wastes must retain copies of the

manifest, and the generator shipping the waste and T/S/D facility

receiving it must each forward a copy to the Agency. The

regulations further provide that either the generator or the

T/S/D facility must report certain problems occurring in the

transaction to the Agency within certain specified times. These

requirements assure that hazardous wastes are properly accounted

for——from the time of generation to the time of final

disposition. All persons participating in the transfer of

hazardous wastes must comply with these important manifesting and

related provisions in order to achieve the regulatory objective

of sound hazardous waste management.

Additional requirements apply to generators and T/S/D

facilities with regard to the management of hazardous wastes at

their respective facilities. These apply from the time the waste

comes into the facility (from the time it is generated or

received) to the time it leaves (to the time it is transferred

away, is finally disposed of, or is no longer a hazardous

waste). Certain of these requirements apply solely to hazardous

waste generators, whereas others apply only to T/S/D

facilities. Depending on the nature of a generator’s hazardous

waste—related activities, however, certain T/S/D facility

standards may apply to its activities, whether as a generator or

as a T/S/D facility itself. Again, compliance with these various

requirements, as applicable, is necessary to achieve the

regulatory goal of minimized risk to human health and the

environment. The Act vests certain enforcement authority in the

Board to assure the compliance of the regulated community and the

maintenance of the statutory and regulatory schemes.

The People’s Second Amended Complaint against SCI alleges

non—compliance with various generator requirements, various T/S/D

facility requirements that purportedly apply to SCI as a

generator, various T/S/D facility requirements that purportedly

apply to SCI as a T/S/D facility, and one miscellaneous violation

of the rules. It is convenient for the Board to so categorize

and consider the substance of the various counts of the

complaint. The asserted non—compliance with the first category,

including only alleged non—compliance with the RCRA generator

requirements, alleges violations of the manifest initiation

requirements and exception reporting requirements (for the late

receipt of T/S/D facility—signed return copies of certain

manifests). This includes Counts IV and

V

of the complaint. The

second category includes Counts I through III and alleges certain

administrative T/S/D facility standards that purportedly apply to

SdI as a hazardous waste generator (those requiring a written

contingency plan, the designation of an emergency coordinator,

and certain personnel training and recordkeeping requirements).

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Counts VII through XI, in category three, pertain to certain

requirement that would apply to SCI solely as a T/S/D facility

(requiring a written waste analysis plan, a written facility

inspection plan, the filing of annual reports with the Agency, a

written facility closure plan, and a written closure cost

estimate and the maintenance of closure cost assurance). Count

VI is unique and stands alone. It derives from the same facts as

Count V1 however, so it is topically categorized and discussed

together with Count V for convenience. It alleges that SCI

established a T/S/D facility in violation of the Act and

regulations by parking a trailer of hazardous wastes in an off—

site location.

The following discussion considers each category of alleged

non—compliance in the order as outlined, with one exception: it

is most convenient to consider the unique count together with

part of the first category. The discussion below will proceed to

analyze the substance of the complaint under the following

topical sub—headings:

1. “Generator Standards” (Counts IV, V, and

VI);

2. “Generator T/S/D Facility Standards”

(Counts I, II, and III); and

3. “T/S/D Facility Standards” (Counts VII,

VIII, IX, X, and XI).

Although followed by a summary of the count—by—count

findings, the posture of this case makes it expedient

to consider the individual counts together in the three

major broader categories. Preceding the discussions of

the four categories of violations is a preliminary

citation of a relevant statutory provision that the

People allege SCI violated.

III. Status of Claimed Violations

The Act authorizes the Board to adopt and amend

rules governing the management and disposition of

hazardous wastes. Ill. Rev. Stat. ch. 111—1/2, pars.

1022 & 1022.4 (1988). This the Board has done, and the

resulting body of regulations resides at Subtitle G of

Title 35 of the Illinois Administrative Code. The Act

further provides:

No person shall:

f. Conduct any hazardous waste—storage,

hazardous waste—treatment or hazardous

waste—disposal operation;

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2. In violation of any regulations or

standards adopted by the Board under

this Act

Ill. Rev. Stat. ch. 111—1/2, par. 1021 (1988).

The violation of this provision is alleged as part of each count

of the complaint. SCI has violated this provision of the Act if

it has violated any RCRA requirement directly affecting hazardous

waste storage, treatment, or disposal, whether the particular

rule directly regards the activities of a hazardous waste

generator, transporter, or T/S/D facility.

A. Generator Standards

The first topical category of alleged SCI non—compliance

includes only those regulatory provisions applicable to a

hazardous waste generator. For analytical convenience, the

miscellaneous count (Count VI) is included in this category. The

analysis follows in order for Count V, Count VI, and Count IV.

The RCRA generator standards require a generator to prepare

a manifest for each consignment of hazardous wastes to an off—

site facility for treatment, storage, or disposal. 35 Ill. Adm.

Code 722.120(a) (1984). These standards further require that the

generator must designate as the consignee only a permitted RCRA

T/S/D facility. Sec. 722.120(b). The People contend in Count V

that SCI violated this provision of the RCRA requirements.

“Storage” is defined as “the holding of hazardous waste for a

temporary period

....“

Sections 702.110 & 720.110. Therefore,

SCI violated Section 722.120 of the Board’s RCRA rules if it

transferred hazardous wastes for temporary holding at an off—site

facility without using a manifest, and/or if it transferred

hazardous wastes to a facility which was not a permitted RCRA

T/S/D facility.

The record reflects that Sd transferred hazardous wastes to

a lot adjoining its plant, that the wastes remained on the lot

for a period of several days, that SCI did not initiate a

manifest for that transfer, and that the lot was not a permitted

RCRP. facility. The remaining issues are whether the lot was

“off—site” for the purposes of the Board’s RCRA rules, and

whether the record shows any extenuating or aggravating facts for

consideration. The Board concludes that the adjoining lot was

“off—site” for the purposes of RCRA, and that SCI intentionally

transferred the wastes to the lot for the purpose of avoiding

Agency detection of the wastes. The Board concludes that SCI

thereby violated Section 722.120 of the RCRA rules and Section

21(f)(2) of the Act.

SdI admitted shipping hazardous wastes to a lot adjoining

its plant without a manifest, and the record strongly suggests

that SCI did so to avoid Agency detection of the wastes. One

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issue raised by the Agency’s March 24, 1983 inspection of SCI was

whether SCI had stored hazardous wastes in its plant for longer

than 90 days.* (P. Ex. 2, p. 27; R. 39). SCI was aware that the

Agency had determined on this basis that it was a hazardous waste

T/S/D facility in violation of various Board rules following that

inspection. (P. Ex. 15; R. 324—25). SCI was therefore aware

that Agencydetection of the same wastes at its plant would

confirm the Agency’s conclusion that it was a hazardous waste

T/S/D facility. The Agency attempted an unannounced follow—up

inspection on June 30, 1983, but failed to gain admittance to the

SdI plant. The Agency returned for a scheduled inspection on

July 6. (P. Ex. 4; R. 59 & 467—68). During that inspection the

Agency observed three drums of hazardous wastes at SCI, so that

the approximately 15 drums of hazardous wastes present on March

24 were no longer at the plant. The Agency also observed that

SCI still had initiated no manifests since November, 1982. (P.

Ex. 2, p. 27; P. Ex. 4, p. 27; R. 58—69). Mr. Carlson explained

at the time of the inspection that about two weeks earlier it had

shipped the drums of wastes to an intermediate Waste Management

transfer point pending an ultimate destination. He explained

that SCI did not initiate a manifest for the shipment because its

ultimate destination was unknown at that time.** (P. Ex. 4, p.

27). The Agency learned on either July 6 or 7 from Waste

*

This bears on the issue of whether SCI was merely a hazardous

waste generator or a T/S/D facility for the purposes of RCRA

regulation. This issue is dealt with fully below, at pages 18—23

of this discussion.

**

Mr. Carlson later submitted conflicting testimony with regard

to these events. During a January 22, 1985 deposition, he stated

that he personally inspected the trailer a week before the Agency

inspection and the wastes were not in it. He testified that SdI

personnel placed the wastes in the trailer without his knowledge

and authorization while he was on vacation when Waste Management

did not arrive for a scheduled pickup. (R. 378—79.) During the

August 19, 1985 segment of the hearings, Mr. Carlson testified

that he was on vacation from June 29 through July 4, 1983. He

said that he first learned that Waste Management had not picked

up the wastes only after the Agency confronted him with the Waste

Management denials of his unmanifested waste pickup story. Mr.

Carlson admitted that he was in his office for brief times on

Thursday and Friday, June 29 and 30, when he refused to allow the

unscheduled Agency inspection of his plant. CR. 369—79, 427—32 &

466—69.) It is clear that SCI could not have both shipped the

wastes to an undisclosed location two weeks prior to the Agency

inspection and anticipated a Waste Management pickup while Mr.

Carlson was on vacation June 29 and 30. Mr. Carlsori’s later

explanations are less credible than his earlier explanations.

Further, the contemporaneous explanation would constitute an

admission.

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Management that no such transfer had occurred, and when it

confronted SCI with this information, SCI disclosed that the

wastes were in a semi—trailer parked on a lot adjoining the SCI

plant. (P. Ex. 4, p. 27; R. 70—74). The Agency returned to SCI

on July 8 to see a total of 28 drums

of hazardous wastes in the

trailer.

(P. Ex. 4, p. 27; P. Ex. 8; R.

73—74, 165—67, 202-05 &

366—77). Waste Management was at SCI at that time, and later

took 20

of the drums for disposal after they were properly

repackaged and the

Agency had left.

(P. Ex. 18 G & H; P. Ex. 8;

R. 204).

Initially,

the Board observes that SCI employees

placed the

wastes on the

adjoining lot which was not a permitted RCRA T/S/D

facility without initiating a

hazardous waste manifest. Without

an affirmative showing of some legal

justification for having

done so, this is

sufficient to establish a violation of Section

722.120 of the RCRA rules and Section

2l(f)(2) of the Act if

the

lot was “off—site.” The RCRA rules define “off—site” as “any

site which is not ‘on—site.’” 35 Ill. Adm. Code 702.110 &

720.110 (1984). They define “on—sitet’ as follows:

“On—site” (RCRA) means on the same or

geographically contiguous property which may

be divided by public or private right(s)—of—

way, provided the entrance and exit between

the properties is at a cross—roads inter-

section, and access is by crossing as opposed

to going along, the right(s)—of—way. Non-

contiguous properties owned by the same person

but connected by a right—of-way which the

person controls and to which the public does

not have access, is also considered on—site

property.

Sections 702.110 & 720.110.

Implicit to this definition of “on—site” is the requirement that

both properties between which the wastes transfer are in the

exclusive possession and control of the same person: the owner

or operator of the hazardous waste facility.

The record indicates that the adjoining lot was not in SCI’s

exclusive possession and control, despite SCI’s right of access

to it, so the Board concludes that the adjoining lot was not “on—

site” for the purposes of the RCRA rules. SCI leases its plant

from a trust whose beneficial owner leases the adjoining lot from

Jewel Foods. (P. Ex. 10; p. Ex. 11, pp. 6—15; P. Ex. 12; R. 255—

56 & 309). Despite the right of access given in the Jewel lease

to SCI and other tenants for the purpose of parking vehicles, the

adjoining lot is not in SCI’s possession and control (P. Ex. 10,

p. 2), and public access to it is not restricted. (P. Ex. 11, p.

17). Further, both the third—person lessee of the lot and Jewel

Foods were unaware that SCI had used the lot for the temporary

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storage of hazardous wastes in the trailer. (P. Ex. 11, p. 19;

R. 274). Therefore, SdI violated Section 722.120 of the RCRA

rules and Section 21(f)(2) of the Act by transferring its

hazardous wastes to that unpermitted location without a

manifest.

Further, with regard to knowledge and intent, the Board

finds that SCI’s conduct and testimony severely affect its

credibility and brings its motivations and assertions of good—

faith into serious doubt. The Board observes that throughout the

record of these proceedings SCI has continuously attempted to

avoid the conclusion that it has stored its wastes for more than

90 days and thereby become a RCRA T/S/D facility.* Further, the

Board observes that SCI’s version of the facts has changed since

the time of the July, 1983 inspections. The Board concludes from

these facts that SCI intentionally placed the drums of waste in

the trailer and on the adjoining lot for the purpose of avoiding

Agency detection of its non—compliance with the Board’s RCRA

rules.

For the foregoing reasons, the Board finds that SCI violated

Section 722.120 of the Board’s RCRA rules and Section 21(E)(2) of

the Act without legal justification when at some time prior to

July 6, 1983 it placed about 28 drums of hazardous wastes in a

semi—trailer and parked the trailer off—site on a lot adjoining

the SCI plant. That lot was not a permitted RCRA T/S/D facility,

and SCI did not initiate a hazardous waste manifest for the

transfer. In aggravation, the Board finds that SdI intentionally

performed these acts for the purpose of avoiding hgency detection

of the wastes. In mitigation, the Board finds that Sd did have

access to the lot for the purpose of parking vehicles, and that

SCI could reasonably have had confusion as to whether the lot was

indeed “off—site” for the purposes of the RCRA rules, since the

lot immediately abutted the SCI plant premises. Further, the

Board notes that SCI’s intent was not the most egregious

conceivable under the RCRA scheme: the improper, illegal

disposal or release of the wastes into the environment. The

Board, however, does not condone SCI’s surreptitious acts

performed with the apparent intent of avoiding compliance with

applicable RCRA rules.

Count VI is also based on this incident and the same

facts. However, the People contend that by parking its trailer

on the lot, Sd thereby created a T/S/D which did not comply with

the RCRA rules. The asserted non—compliance was with numerous of

the Board’s RCRA T/S/D facility standards. The Board has already

determined that SdI temporarily stored hazardous wastes on the

lot, and obviously, the lot was not in full compliance with

*

For example, SCI’s testimony includes a strained set of

assertions obviously designed to avoid the conclusion that it has

stored its wastes for more than 90 days. This testimony is

outlined below on pages 20—21 of this discussion.

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applicable RCRA T/S/D facility standards if it thereby became a

T/S/D facility which was not excepted from regulation.

The only conceivably applicable regulatory exceptions from

the T/S/D facility regulations are the small quantity exception,

35 Ill. Adm. Code 721.105 (1984); the 90—day generator exception,

Sections 722.134 & 725.l0l(c)(7); and the transportation

exception, Sections 723.112 & 725.lOl(c)(2). The quantity of

wastes in 28 drums clearly exceeds 1,000 kilograms, so the small

quantity exception does not apply. (See P. Ex. 14; P. Ex. 18; R.

48 & 321—23). The 90—day generator exception does not apply

because the wastes were not “on—site,” as found above. Finally,

the storage was not incident to transportation because SCI had

not initiated a manifest or otherwise consigned the wastes,

because Sd is not a hazardous waste “transporter” for the

purposes of this exception, and because SCI’s containers

apparently did not comply with the RCRA container requirements.

(P. Ex. 8; R. 208, 214 & 432—33; see Sections 723.112 &

725.101(c) (12)).

The Board concludes that SCI created a T/S/D facility of the

adjoining lot when it stored its hazardous wastes there in July,

1983, and that that facility did not comply with Sections 725.111

(tJSEPA identification number requirement), 725.113(b) and (c)

(requiring a written waste analysis plan), 725.114 (facility

security requirements), 725.115 (facility inspection

requirements), 725.131 (facility maintenance and operation

requirements), 725.132 (facility emergency and communications

equipment requirements),

725.133 (maintenance and testing

requirements for facility emergency and communications

equipment), 725.135 (aisle space requirements), and 725.137

(requirements for emergency arrangements with local

authorities). SCI thereby violated Section 21(f)(2) of the Act.

The Board foregoes a detailed section—by—section analysis of

the various T/S/D facility standards with which SCI failed to

comply on this adjoining lot T/S/D facility. SCI cannot

seriously suggest that it attempted to comply with any of those

requirements listed in Count VI. The Board does observe,

however, that SCI did maintain physical and chemical test results

for its wastes, so it did comply with Section 725.113(a) of the

Board’s RCRA rules (P. Ex. 2, p. 8; P. Ex. 4, p. 8; R. 133).

Further, the Board specifically finds that aisle space is

required for drummed hazardous wastes stored in semi—trailers

because spilling or leakage is possible.* (See Section 725.135;

*

Although the Board can foresee other situations in which it is

both physically safe and environmentally sound not to maintain

aisle space, this is not such a situation. For example, there is

no means of spill containment on the lot adjoining the SdI

plant. (See R. 287—89 & 476—77).

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P. Ex. 8; P. 205 & 212—13). The Board’s prior findings with

regard to mitigating and aggravating circumstances relating to

Count V apply to Count VI with the following added aggravating

factor: SCI stored its hazardous wastes on the adjoining lot

without the knowledge and consent of either the third—person

lessee or the owner, Jewel Foods. This is a very serious breach.

Count IV of the People’s Second Amended Complaint alleges

that SCI failed to file with the Agency an exception report when

SCI did not receive certain T/S/D facility—signed copies of the

manifest within the required 45 days. 35 ill. Mm. Code 722.142

(1984).

In support of its allegation, the People cite that during a

March 24, 1983 inspection of SCI, the Agency observed that SCI

had failed to submit exception reports when it failed to receive

the return copies of the manifests for three shipments of

hazardous wastes to Alabama. (P. Ex. 2, pp. 7 & 27; P. Ex. 3; R.

44—45). The record includes copies of five manifests for SCI

shipments to Alabama which occurred prior to the March, 1983

inspection. Three occurred February 24, 1982 and were received

in Alabama on March 2, 1982. (P. Ex. 18 B, C & D). Two occurred

October 28, 1982 and were received November 19, 1982. (P. Ex. 18

E & F). All copies indicate receipt and signature within the

designated times, and all are the return copies of the

manifests. These documents do not support the allegations. Mr.

Carlson testified that the only time he did not receive a return

copy was once when his wastes were returned because they included

too much supernatant liquid. He removed the liquid, shipped the

wastes again, and received return copies of the manifests. Mr.

Carlson recalled no other shipments without manifest return

copies, (P. 426—27 & 465—66), and the record fails to indicate

which shipment the waste return affected.

The Agency inspector’s reports, which constitute the

People’s primary evidence, add confusion to the evidentiary

discrepancies. The inspector noted at the time of the inspection

that SCI had also failed to submit Agency copies of the

manifests, see 35 Ill. Mm. Code 722.l23(a)(4) (1984), and that

SCI’s last shipment had occurred November 19, 1982 “according to

company manifest (sic

...,“

(P. Ex. 2, p. 27), or “according to

Mr. Carison.” (P. Ex. 3). The inspector later

noted on February

6, 1984: “TIhe date of the last manifest was November 19,

1982. (Neither the Agency or sic Mr. Carlson had manifest

copies for that shipment. The previous manifest for which the

Agency had copies was October 28, 1982).” (P. Ex. 6, Att.).

Because the October, 1982 consignment was received on November

19, 1982, and because Mr. Carlson asserts that Exhibit 18

represents all manifests and all his shipments of hazardous

wastes, (P. 359—60), it is possible that the inspector and Sd

failed to properly communicate on this issue, so the inspector

only thought SCI did not receive return copies for a non—existent

November 19, 1982 shipment. It is also possible that SCI somehow

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did not retain any manifest copies for a shipment which occurred

on this date. The record is unclear.

The burden was on the People to prove that Sd failed to

file exception reports with the Agency in violation of Section

722.142(b) of the Board’s RCRA regulations. The facts are

confused onthis issue, and the People have failed to clarify

them in a way that would demonstrate that they bore this burden

of proving a violation of the rules. The Board would not find

that SCI violated the exception reporting requirement of Section

722.142(b), but SCI’s post—hearing brief twice flatly admits the

violation. Therefore, the Board finds that SCI violated Section

722.142(b) of the RCRA rules and Section 21(f)(2) of the Act. In

mitigation, the Board finds that SCI ultimately contacted the

receiving T/S/D facility arid obtained a return copy of the

manifest.

This concludes the Board’s consideration of those counts of

the complaint pertaining solely to alleged Sd violations of the

Board’s generator standards. The Board next considers the counts

alleging violations of the Board’s RCRA T/S/D facility standards

that purportedly apply to SCI as a generator of hazardous wastes.

B. Generator T/S/D Facility Standards

The second topical category of alleged non—compliance

focuses on certain T/S/D facility standards that apply to some

hazardous waste generators. The analysis of this topical

category involves the central focus of the parties throughout

this proceeding: the characterization of Sd’s conduct. It

concludes that SdI is not the willful violator, as contended by

the People, nor the small, beleaguered businessman who has

throughout attempted to comply in full good faith, as contended

by Sd.

Counts I, II, and III of the Second

Amended Complaint allege

that SCI violated various T/S/D

facility requirements that would

apply to SCI as a hazardous waste generator.

These allege that

SCI had no adequate written contingency plan (Count I), had not

designated emergency coordinators (Count II), and

had no adequate

written personnel training records (Count III).

The Board’s RCRA regulations require that all generators

which store hazardous wastes comply with certain of the interim

T/S/D facility standards. This is true of all generators,

whether they merely store the wastes one day past the date of

generation, or they store the wastes for extended periods and

thereby become a T/S/D facility for the purposes of

90—450

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—13—

regulation.*

See 35 Ill. Mm. Code 722.134 &

725.l0l(c)(7)

(1984) (generator accumulation time exception provisions).

The

relevant, applicable portions of the interim T/S/D facility

standards of Part 725 of the Board rules include the personnel

training requirements of Section 725.116 and

the contingency plan

and emergency coordinators requirements of Subpart D, Sections

725.150 through 725.156. These are very explicit and somewhat

detailed requirements.

The Board feels it is useful to cite significant portions of

the contingency plan, emergency coordinator, and personnel

training requirements preliminary to its core analysis of the

issues involved in this topical category.

A major factor

implicit to the resolution of the issues involved is the clarity

and particularity of the relevant provisions. Their clarity and

particularity illustrate any deficiencies in SCI’s compliance

efforts arid directly bear

on SCI’s ability and willingness to

promptly comply with the requirements.

The T/S/D facility contingency plan requirements provide

that the facility owner and operator must assemble a written

plan:

designed to minimize hazards to human health

or the environment from fires, explosions or

any unplanned sudden or non—sudden release of

hazardous

waste

or

hazardous

waste

con-

stituents to air, soil or surface water.

Section 725.151(a).

The regulations specify the

contents of the plan with some

particularity.

They provide in part as follows:

a)

The contingency plan must describe the

actions facility personnel must take to

comply with Sections 725.151 and 725.156

in response to fires, explosions or any

unplanned sudden or non—sudden release of

hazardous

waste

or

hazardous

waste

constituents

to air,

soil

or surface

water at the facility.

C)

The plan must describe arrangements

agreed to by local police departments,

fire departments hospitals contractors

and state and local emergency response

teams to coordinate emergency.

*

The generator accumulation time exception and its applicability

to SCI’s operations is analyzed more fully below at pages 18—22

of this discussion.

90—45 1

---

—14—

d) The plan must list names, addresses and

phone numbers (office and home) of all

persons qualified to act as emergency

coordinator

...

and this list must be

kept up to date.

e) The plan must include a list of all

emergency equipment at the facility (such

as fire

extinguishing

systems,

spill

control equipment, communications and

alarm system (internal and external) and

decontamination equipment) where this

equipment is required. This list must be

kept up to date. In addition, the plan

must include the location and a physical

description of each item on the list and

a brief outline of its capabilities.

f) The plan must include an evacuation plan

for facility personnel where there is a

possibility that evacuation could be

necessary. This plan must describe

signal(s) to be used to begin evacuation,

evacuation routes and alternate

evacuation

routes

(in cases where the

primary routes could be blocked by

releases of hazardous waste or fires).

Section 725.152.

These comprehensive, detailed requirements continue to describe

that the T/S/D facility (or excepted generator) must maintain

copies of the plan at the facility and submit copies to local

emergency services entities (such as

police departments, fire

departments, hospitals, etc.).

Section 725.153.

They further

provide for the amendment and implementation of the plan.

Section 725.154 & 725.156.

The contingency plan provisions also require the facility to

designate an “emergency coordinator” to carry out the plan if

necessary:

At all times there must be at least one

employee either on the facility premises or on

call (i.e., available

to respond to an

emergency by reaching the facility

within a

short period of time) with the responsibility

for

coordinating

all

emergency

response

measures. This emergency coordinator must be

thoroughly familiar with all aspects of the

facility’s contingency plan, all operations

and activities

at the facility,

the location

90—45 2

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—15—

and characteristics of waste handled, the

location of all records within the facility

and the facility layout. In addition, this

person must have the authority to commit the

resources needed to carry out the contingency

plan.

Section 725.155.

These detailed contingency plan and emergency coordinator

requirements set forth with particularity the actions a facility

must take and the written documentation necessary to achieve

compliance.

The Board’s personnel training requirements are less

comprehensive in scope than those for a contingency plan, but

equally particular as to the nature and contents of the required

written records:

The owner or operator must maintain the fol-

lowing documents and records at the facility:

1) The job title for each position at the

facility related to hazardous waste

management and the name of the employee

filling each job;

2) A written job description for each

position listed under paragraph (d)(l) of

this Section. This description

...

must

include the requisite skill, education or

other qualifications and duties of

facility personnel assigned to each

position;

3) A written description of the type and

amount of both introductory and

continuing training that will be given to

each person filling a position listed

under paragraph (d)(l) of this Section;

arid

4) Records that document that the training

or job experience required under

...

this

Section has been given to and completed

by facility personnel.

Section 725.116(d).

The facility must retain its personnel training records for the

life of the facility, with one limited exception not applicable

here. Section 725.116(e).

90—45 3

---

—16—

Compliance with these provisions would have required SCI to

assemble the required information, engage in the required

personnel training, and submit information to various local

authorities. The record indicates that SCI did not fully perform

these actions until some time after the People filed their

complaint.

The Agency inspection reports indicate that SCI did not have

any required documentation of personnel training, or contingency

planning, and had not designated an emergency coordinator at the

time of the March 24, 1983 Agency inspection. (P. Ex. 2, pp. 4,

6—7 & 27; p. Ex. 3). At the time of the July 6, 1983 inspection,

SCI had only acquired written job descriptions and job titles for

personnel training documentation, but had made no progress with

regard to a written contingency plan. (P. Ex. 4, pp. 4, 6—7, 27

& Att.). By the February 6, 1984 inspection, SCI had an

incomplete contingency plan, which failed to give the names and

addresses of qualified emergency coordinators; which did not

fully describe the locations, physical attributes, and

capabilities of SCI’s emergency equipment; and which failed to

describe arrangements SCI made with local emergency response

authorities. SCI showed no personnel training records to the

Agency. (P. Ex. 6, pp. 4, 6—7 & Att.; P. Ex. 7).

Subsequent to the filing of the complaint in this action,

SCI had written job titles and descriptions of the required

personnel training,

but training records and job descriptions

were not present during the February 13, 1985 Agency

inspection. (P. Ex. 9, p. 32). At that time, SCI’s contingency

plan did not outline the emergency coordinators’ responsibilities

and actions, did not give their addresses, and did not outline

SCI’s emergency equipment capabilities. (P. Ex. 9, pp. 34—35;

see R. Ex. 1).

SCI submitted a complete contingency plan

together with written personnel training records to the Agency on

July 16, 1985. (P. Ex. 3—7). It took over two years from the

time of the April 22, 1983 detailed notice of apparent violations

before SCI complied fully with these requirements. (See P. Ex.

15).

Mr. Carison has repeatedly expressed confusion as to what is

required for compliance with the regulations. (See, e.g., P. Ex.

1; P. 327.) He further asserts that he has always had a

contingency plan that complied with his interpretation of the

regulations. (P. 436—38). A facial examination of that

document, however, reveals the speciousness of this contention:

it is merely a two—page description of SCI’s wastewater

pretreatment system and a plant floor plan crudely indicating

floor space usage and the locations of the plating line,

“pollution control,” and “sludge sic storage.” (R. Ex. 8).

SCI’s available documentation was wholly insufficient for the

purposes of RCRA compliance. Further, this conflicts with Mr.

Carlson’s other testimony that SCI assembled its first written

contingency plan in 1984. (P. 348). It was this plan that Mr.

90— 454

---

—17—

Carlson elsewhere asserted that SCI assembled in 1983. (P. Ex.

7; P. 381—82). SCI did

not

make this version available to the

Agency until February, 1984, and it was incomplete, as noted

above. Finally, had SCI fully intended to dispel its confusion

as to the RCRA requirements, it could have in good faith done so

within a time shorter than two years.

SCI contends that certain other documents not directly

related to hazardous wastes management constituted partial

compliance with the requirements, and that its RCRA—required job

descriptions do not need to reference hazardous wastes. (P. 329—

30; see P. Ex. 16 & 17). While this is partially true, and

specific references to hazardous wastes as such is not required

for every phase of the contingency plan or personnel training,

except as otherwise required by regulation or by personnel and

environmental safety considerations, SCI subverts its position

with regard to its own good faith efforts by these arguments.

People’s Exhibit 17 illustrates how rapidly SCI can comply with

law when motivated to do so: it is SCI’s July 1, 1984 “Employee

Toxic Substance Training Program” adopted to comply with

Illinois’ “Toxic Substances Disclosure to Employees Act,” P.A.

83—240, approved September 8, 1983 and effective January 1,

1984. See

Ill. Rev. Stat. ch. 48, par. 1401—1420 (1985).

SCI

tries to make it seem like the replacement of the former Agency

inspector removed an impediment to SCI’s full compliance, (see P.

Ex. 1), but it is more likely that the filing of the People’s

complaint in 1984 provided the motivation for good—faith efforts

at compliance by 1985.

The Board finds that SCI violated Section 725.151 of the

Board’s RCRA rules in that it failed to assemble and maintain an

adequate contingency plan for its facility. SdI also violated

Section 725.153 in that it failed to maintain a copy of an

adequate contingency plan at its facility and submit copies to

local entities who might be called upon to provide emergency

services. Finally, SCI violated Section 725.155 of the RCRA

rules and Section 21(f)(2) of the Act in that it failed to

designate an emergency coordinator on the facility premises or on

call and available to respond to an emergency within a short

period of time, until some date after the filing of this

action. The People have failed to present any arguments and

evidence to demonstrate the need for contingency plan revision,

so the Board finds that the People have failed to establish, an

SCI violation of Section 725.154 of the Board rules. The

foregoing constitutes the Board’s findings and conclusions as to

Counts I and II. As to Count III, the Board finds that SCI

violated Section 725.116 of the RCRA rules and Section 21(f)(2)

of the Act in that it failed to maintain a full documentation of

its personnel training, including written job titles, written job

descriptions, written descriptions of required job training, and

written documentation of job training or experience received,

until some time after the filing of this complaint. The Board

further finds that there was no cognizable impediment that should

90—455

---

—18—

excuse SdI’s prolonged non—compliance of about two years from

when the Agency initially notified SCI of its non—compliance.

The third and final category of alleged non—compliance

includes alleged Sd violations of various Board RCRA rules that

would apply to SCI only as a T/S/D facility. Because this

category requires preliminary analysis of whether SdI was a T/S/D

facility, the preliminary analysis precedes and is separate from

the determination of the merits of Counts VII through XI.

C. T/S/D Facility Standards

The threshold issue relating to the Counts VII through XI

alleged violations of the Board’s rules is whether SCI is a T/S/D

facility for the purposes of RCRA regulation. The violations

alleged in these counts are of standards that would only apply to

SCI as a T/S/D facility. The parties hotly contend on this

issue, and the issue initially arose with the first Agency

inspection. Because of the importance of this preliminary issue

and the conflicting testimony relating to it, the Board proceeds

with care.

SCI’s Regulatory Status As A T/S/D Facility

The RCRA rules provide for a generator accumulation time

exception from the broader T/S/D facility standards as follows:

a) A generator may accumulate hazardous

waste on—site for 90 days or less without

a permit or without having interim status

provided that:

1) The waste is placed in containers

and the generator complies with

Subpart I of 35 Ill. Mm. Code 725

or the waste is placed in tanks and

the generator complies with

Subpart

J of 35 Ill. Mm. Code 725 except 35

Ill. Adm. Code 725.293;

2) The date upon which each period of

accumulation begins is clearly

marked and visible for inspection on

each container;

3) While being accumulated on—site,

each container and tank is labeled

or marked clearly with the words,

“Hazardous Waste”, and

4) The generator complies with the

requirements for owners and

operators in Subparts C and D in 35

90—

456

---

—19—

Ill. Adm. Code 725 and with 35 Ill.

Mm. Code 725.116.

b) A generator who accumulates hazardous

waste for more than 90 days is an

operator of a storage facility and is

subject to the requirements of 35 Ill.

Mm. Code 724 and 725

35 Ill. Adm. Code 722.134 (1984).

The rules further provide for a small quantity generator

exception, which potentially affects the accumulation time as

follows:

The time period of Section 722.134 for accumu—

lation of wastes on—site begins for a small

quantity generator when the accumulated wastes

exceed the applicable 1,000 kilogram exclu-

sion level.

Section 721.105(f).

The combined impact

of these provisions is this: a generator may

store hazardous wastes for a maximum of

90 days after the date

upon which

it has accumulated 1,000 kilograms* of

hazardous

wastes and not become a RCRA T/S/D facility——so long as it meets

certain conditions. To remain exempt from the broader T/S/D

facility standards, therefore, the generator must:

1. Place its wastes in containers or tanks

and comply with the related T/S/D

facility standards that apply to

containers and/or tanks;

2. Clearly and visibly mark each container

for inspection with its respective date

of accumulation;

3. Clearly mark each container “Hazardous

Waste;”

4. Comply with certain limited T/S/D

facility standards;** and

*

This limit is only one kilogram or 100 kilograms for certain

defined “acutely hazardous wastes.” Section 721.105(e). The

record does not indicate that SCI generates such wastes.

**

These limited T/S/D facility standards are more fully

described in part above at pages 12—16 of this discussion.

90—4 57

---

—20—

5. Not store its hazardous wastes more than

90 days

beyond

the

first

date

the

generator has accumulated more than 1,000

kilograms.

*

If at any time the generator

violates any of these

conditions

while storing hazardous wastes, it loses the exemption and

becomes a regulated RCRA T/S/D facility. The Board determines

that Sd was such a regulated T/S/D facility——on this and on an

alternative basis.

The Agency inspection of March 24, 1983 disclosed that SCI

had about 15 drums of hazardous wastes in its plant. These drums

bore no accumulation date markings, were stored open, and one was

observed leaking. SCI manifest records indicated that Sd’s next

preceding shipment of hazardous wastes had occurred about 125

days prior to the inspection, on about November 19, 1982. (P.

Ex. 2, p. 27; P. Ex. 3; p. 30—53, 105—61 & 191). The Agency

determined based on the last date of shipment that SdI stored its

wastes longer than the 90 days allowed a generator. The ~.gency

inspections of July 6 and 8, 1983 disclosed about two or three

drums of hazardous wastes inside the SCI plant, whicli, were in

good condition and clearly marked with accumulation dates, and

about 28 drums in a trailer, which were not marked with

accumulation dates, which did not appear to be in good condition

to the inspector, and one of which appeared rusted and leaking.

(P. Ex. 4, p. 27; P. Ex. 8; R. 60—80, 161—78, 200—08 & 212l8).

Waste Management picked up 20 of these drums for disposal on July

8, 1983, following the Agency inspection. (P. Ex. 4, p. 27; P.

Ex. 8; P. Ex. 18 C & H). This was 106 days

since the last Agency

inspection and about 231 days since the last shipment of about

November, 1982.** The Agency renewed its contention that SCI had

stored its wastes longer than the excepted 90 days based on these

facts. SCI’s next shipment of 16 drums of hazardous wastes

occurred on October 6, 1983, or 106 days after the July

Lnspection and shipment date.

In response to these facts, SCI still maintains that it has

never stored its hazardous wastes for longer than 90 days after

it had accumulated more than 1,000 kilograms. Initially, SCI

asserts that it generates most of its wastes in large batches at

one time, and

only a small portion on an on—going basis. (P.

368, 418—25, 435 & 462—64). Mr. Carlsort then asserts that he

never has authorized any storage for more than 90 days. (P.

~ See supra note on preceding page re the maximum waste limit.

**

It is perhaps useful at this point to recall the preceding

consideration of these events located above at pages 6—8 of this

discussion.

90—45~

---

—21—

434). SCI’s major contention with regard to the 90—day limit,

however, is that SdI evaporates and removes supernatant liquid

from the drummed wastes to reduce their volume and weight before

disposal. Mr. darlson asserts that the 15 drums of wastes

present during the March, 1983 inspection thereby reduced to

about threedrums, or less than the 1,000 kilograms

maximum, so

shipment was not necessary because the 90—day clock had not

started. (R. 365—66, 435 & 397—99). Finally, with regard to

drum condition and accumulation dates marking, SCI maintains that

its drums were in good condition, they never leaked, and SdI

always marked them with accumulation dates——even if the markings

may have become obscured during storage and handling.

(P. 396,

428 & 432—33).

Initially, the Board finds that SCI violated the conditions

of the generator accumulation time exclusion and thereby became

subject to the applicable T/S/D facility standards. SCI placed

hazardous wastes in open containers and at least one rusted and

leaking container. See Sections 722.134(a)(l) & 725.271—

725.274.

SCI failed to mark each container durably and visibly

with its respective accumulation date for inspection. See

Section 722.l34(a)(2).

Also, SCI failed

to comply with Subpart D

of Part

725 (contingency plan

and emergency coordinator

requirements) and Section 725.116 (personnel training

requirements).* Finally, SCI stored hazardous wastes in its

plant for more than 90 days past the date on which it first had

accumulated 1,000 kilograms of hazardous wastes. See Section

722.105(f), 722.134(b) & 725.lOl(c)(7).

Various facts support these conclusions. With regard to the

condition of SCI’s drums, the Board finds that the Agency’s

repeated observations are more credible than SCI’s assertions

that its drums were not rusted and

leaking. Furthermore, the

drums were left open. With regard to the marking of accumulation

dates, if the Board were

to believe that SCI did appropriately

mark each drum, it observes that the object of this provision is

“for inspection.”

Section 722.l34(a)(2).

The Board holds that

the markings must therefore be present for inspection, or it is

irrelevant for the purposes of regulation that the generator ever

applied them.

As to the accumulation and storage times, the

Board first holds that it is the volume or quantity of waste as

initially generated that is relevant for the purposes of the

1,000 kilogram limit.

Second, the Board finds that even if it

were otherwise, SCI stored its wastes for longer than 90

days.

This is partly because it strains credulity to believe that SCI

*

See supra discussion at pages 12—18.

90_450

---

—22—

reduced 15 drums of pre—evaporated waste down to three drurns.*

It is also because SCI admitted to generating one continuous

waste stream that it does not subsequently treat to reduce in

volume, and SCI allowed 231 days to pass before it shipped this

waste for disposal. Finally, it is sufficient of itself that SCI

had about 15 drums present on March 24, 1983 that it did not ship

until July 8, or 106 days later, and eight or eleven drums left

behind by Waste Management on July 8, 1983 that it did not ship

until at least October 6, or 106 days later. SCI misapprehends

both the facts and the regulations.

Finally, the Board has an alternative basis for holding that

SCI

was subject to the applicable T/S/D facility standards: SdI

engaged in the treatment of its hazardous wastes. SCI admitted

that it evaporates and removes supernatant liquid from the

hazardous wastes in its drums in order to reduce or “condense”

the volume and water content. This is hazardous waste

treatment. The Board’s rules define hazardous waste treatment as

follows:

“Treatment” means any method, technique or

process

...

designed to change the physical

or chemical

...

character or composition of

any hazardous waste

...

so as to render such

waste nonhazardous or less hazardous; safer to

transport, store or

dispose of; or amenable

for recovery, amenable for storage or reduced

in volume.

Sections 702.110

&

720.110.

The rules provide no hazardous waste treatment exception from the

T/S/D facility standards similar to

the generator accumulation

time exception, and the only treatment exception even remotely

similar permits treatment only at the time the hazardous wastes

are first placed in the containers. See Section

725.lO1(c)(l3).

SCI treated its hazardous wastes in drums and

thereby became a T/S/D facility for the purposes of RCRA

regulation.** The Board concludes that SCI engaged in hazardous

waste storage

in such a manner that the generator accumulation

time exception did not apply to its hazardous waste activities.

The Board further concludes that SCI engaged in hazardous waste

treatment. Therefore, SCI was subject to the applicable T/S/D

facility standards.

*

By making this observation, the Board does riot subvert its

holding that it is the weight as initially generated that is

relevant for the 1,000 kilogram limit.

This is merely an

evidentiary finding as to SCI’s credibility.

**

The Board does not hereby give any opinion as to the propriety

of SCI’s hazardous waste treatment in its drums.

90—460

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—23—

T/S/D Facility Non—Compliance

The Board now addresses the substance

of Counts VII through

KI, which allege SdI non—compliance with the RCRA T/S/D facility

standards. The Board has already determined in the foregoing

~1iscussion that

these standards apply to SCI. The substance of

these allegations is

that SCI failed to maintain

a written waste

analysis plan, (Count VII; see 35 Ill. Mm. Code 725.113(b)

(1984)); a written facility inspection plan, (Count VIII: see

Sections 725.115(b), 725.115(d) & 725.274); a written facility

closure cost estimate for the facility, (Count XI; see Sections

725.173(b)(7) & 725.242); and financial assurance for facility

closure. (Count XI; see Section 725.243). The complaint also

alleges that SCI failed to submit required T/S/D facility annual

reports of hazardous waste activities to the Agency. (Count IX;

see Section 725.175). Finally, the Second Amended Complaint

alleges that SCI failed to maintain a written facility closure

plan, (Count X; see Sections 725.210—725.215), but the People

erroneously allege this as a violation of Section 725.173

(operating records requirement), an unrelated provision of the

T/S/D facility standards.

The required documents were not present during any of the

Agency inspections, and SCI has not submitted any T/S/D facility

annual reports. In fact, Sd has not submitted the required Part

A application to obtain interim T/S/D facility status. (P. EX.

2—6, 8 & 9; P. 79—80, 133—34, 137—39; see P. Ex. 1, pp. 2—3; P.

Ex. 14 (generator annual report); see also Sections 703.153—

703.157 (Interim Status

Requirements)). SCI does not

contend

that it complied with these requirements. Instead, SCI’s

arguments were directed to the contention that it did not store

its

wastes longer than 90 days, as discussed above.*

In light of the record, the Board concludes that SCI did not

comply with the T/S/D facility standards that the People contend

SCI violated in Counts VII through XI of the Second Amended

Complaint. SCI

thereby violated Sections 725.113(b), 725.115(b),

725.115(d), 725.173(b)(7), 725.175, 725.212(a), 725.242, and

725.243 of the Board’s RCRA rules

and Section 21(f)(2) of the

Act. The Board finds

in aggravation that SCI did

not

seek

compliance with the regulations when confronted with the

requirements by the Agency. Instead,

SCI falsely sought to hide

the fact of its storage from the Agency inspectors

and to erect

an elaborate, unacceptable set of facts

to avoid the

requirements——which facts actually force a conclusion contrary to

*See supra pages 9 & 20—21 of this discussion.

0—46 1

---

—24—

that sought by SCI.* The Board cannot simultaneously find that

SdI acted in good faith, was sincerely confused as to the

requirements, or had a bona fide argument that the RCRA T/S/D

facility standards did not apply to its activities. Further, the

record indicates no SCI efforts at compliance with these

requirements:

IV. Summary and Conclusion

A count—by—count summary of the Board’s findings follows:

Count I: SCI violated 35 Ill. Mm. Code 725.151 and 725.153

(1984) and Ill. Rev. Stat. ch. 111—1/2, par. 102l(f)(2) (1988) in

that it failed to

assembly, maintain, and distribute a

contingency plan as required by the Board’

RCRA

rules.

The

People have failed to prove a violation of Section 725.154.

Count II: SCI violated 35 Ill. Mm. Code 725.155 (1984) and Ill.

Rev. Stat. ch. 111—1/2, par. 1021(f)(2) (1988) in that it failed

to designate an emergency coordinator as required by the Board’s

RCRA rules.

Count III: SCI violated 35 Ill. Mm. Code 725.116 (1984) and Ill.

Rev. Stat. ch. 111—1/2, par. 1021(f)(2) (1988) in that it failed

to maintain written personnel training records as required by the

Board’s RCRA rules.

Count IV: SCI violated 35 Ill. Mm. Code 722.142 (1984) and Ill.

Rev. Stat. ch. 111—1/2, par. lO2l(f)(2) (1988) in that it failed

to submit an exception report to the Agency as required by the

Board’s RCRA rules.

Count V: SCI violated 35 Ill. Mm. Code 722.120 (1984) and Ill.

Rev. Stat. ch. 111—1/2, par. lO2l(f)(2) (1988) in that it

transferred hazardous wastes to an unpermitted off—site location

for storage without using a hazardous waste manifest as required

by the Board’s RCRA rules.

Count VI: SCI violated Ill. Rev. Stat. ch. 111—1/2, par.

1021(f)(2) (1988) in that it stored hazardous wastes at an

unpermitted off—site location and thereby created a hazardous

waste treatment, storage, or disposal facility that did not

comply with numerous of the Board’s RCRA rules.

Count VII: SCI violated 35 Ill. Mm. Code 725.113 (1984) and

Ill. Rev. Stat. ch. 111—1/2, par. lO2l(f)(2) (1988) in that it

*See supra pages 20—22 of this discussion. The Board does not

hereby condemn good faith efforts to structure hazardous waste

activities so that major portions of the regulations do not apply

to the affected facility.

90—462

---

—25—

failed to maintain a written waste analysis plan as required by

the Board’s RCRA rules.

Count VIII: SCI violated 35 Ill. Adm. Code 725.115(b),

725.115(d), and 725.274 (1984) and Ill. Rev. Stat. ch. 111—1/2,

par. lO2l(f)(2) (1988) in that it failed to maintain a written

facility inspection plan as required by the Board’s RCRA rules.

Count IX: SCI violated 35 Ill. Adm. Code 725.175 (1984) and Ill.

Rev. Stat. ch. 111—1/2, par. 1021(f)(2) (1988) in that it failed

to submit annual hazardous waste treatment, storage,

and

disposal

facility reports to the Agency as required by the Board’s RCRA

rules.

Count X: SCI violated 35 Ill. Mm. Code 725.212(a) (1984) and

Ill. Rev. Stat. ch. 111—1/2 lO2l(f)(2) (1988) in that it failed

to maintain a written facility closure plan as required by the

Board’s RCRA rules.

Count XI: SCI violated 35 Ill. Adm. Code 725.l73(b)(7), 725.242,

and 725.243 (1984) and Ill. Rev. Stat. ch. 111—1/2, par.

102l(f)(2) (1988) in that it failed to maintain a written

facility closure cost estimate and financial assurance for

facility closure as required by the Board’s RCRA rules.

With regard to mitigating and aggravating facts, the Board

summarizes its count—by—count findings as follows:

Counts I, II, and III: SCI may have

initially been unaware or

confused as to the precise nature of the regulatory requirements

relating to these counts, but the record indicates nothing that

would excuse or mitigate the prolonged period of SCI’s continued

non—compliance with the Board’s RCRA requirements that form the

basis for the found violations.

Count IV: SCI sought and ultimately obtained the missing return

copy of the manifest.

Counts V and VI: SCI had lawful access to the adjoining lOt for

the purpose of parking vehicles and may have therefore been

confused as to whether this lot was “off—site,” but SCI stored

hazardous wastes on the

lot without the knowledge and consent

of

either the property owner or its lessee, and SCI intentionally

stored hazardous wastes on the lot for the purpose of avoiding

Agency detection of those wastes.

Counts VII, VIII, IX, X, and XI: SCI improperly sought to avoid

the regulatory requirements by unacceptably hiding and

elaborating facts, rather than by properly and permissibly

restructuring its activities so as to render the regulations

inapplicable to its operations. SCI made no effort at compliance

with the Board’s RCP.A requirements forming the basis for the

found violations.

90—4 63

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—26—

The Board must next consider the appropriate remedy for the

found violations. The Board will proceed in light of various

factors, including the above findings.

V. Remedy

The Act authorizes the Board to impose sanctions on those

found in violation of the Act or Board Rules:

a. Except as provided in this Section, any

person that violates any provisions of

this Act or any regulation adopted by the

Board

...

shall be liable to a civil

penalty of not to exceed $10,000 for said

violation and an additional civil penalty

of not to exceed ~1,000 for each day

during which violation continues

...;

b. Notwithstanding the provisions of

subsection (a) of this Section:

3.

Any person that

violates

Section

21(f), 21(g), 21(h) or 21(i) of this

Act or any RCRA permit or term or

condition thereof, or any filing

requirement, regulation or order

relating to the State RCRA program

shall be liable to a civil penalty

of not to exceed $25,000 per day of

violation.

Ill. Rev. Stat. ch. 111—1/2, par. 1042 (1988).

The Act outlines the protocol for a Board decision and further

authorizes the Board to issue cease and desist orders:

a. After due consideration of the written

and oral statements, the testimony and

arguments that shall be submitted at the

hearing,

...

the Board shall issue and

enter such final order, or make such

final determination, as it shall deem

appropriate under the circumstances.

b. Such order may include a direction to

cease and desist from violations of the

Act or of the Board’s rules and regula-

tions

...

and/or the imposition by the

Board of civil penalties in accord with

Section 42 of this Act.

c. In making its orders and determinations,

90—464

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—27—

the Board shall take into consideration

all the facts and circumstances bearing

upon the reasonableness of the emissions,

discharges, or deposits involved includ-

ing, but not limited to:

1. the character and degree of injury

to, or interference with the pro-

tection of health, general welfare

and physical property of the people;

2. the social and economic value of the

pollution source;

3. the suitability or unsuitability of

the pollution source to the area in

which it is located, including the

question of priority of location in

the area involved;

4. the technical practicability and

economic reasonableness of reducing

or eliminating the emissions, dis-

charges or deposits resulting from

such pollution source; and

5. any economic benefits accrued by a

noncomplying pollution source

because of its delay in compliance

with pollution control requirements.

Section 1033.

Although Section 33(c) applies by its terms to the

“reasonableness of the emissions, discharges, or deposits

involved,” and various other aspects of this provision would

render it more appropriate to pollution sources, it still

provides at least minimal guidance in such a case as this one.

This is a case involving violations of a body of regulations

intended to entirely prevent the release of pollutants into the

environment.

The People urge the Board not to apply Section 33(c) to this

case. They assert that the application of this provision is

not

mandatory where there are no “emissions, discharges, or

deposits,” and that the application would be “contrary to the

federal mandate.” Complainant’s Post—Hearing Brief at 25—26; see

42 U.S.C. 6928 (1987). The People instead urge the Board to

apply the USEPA RCRA Civil Penalty Policy (final draft, May 8,

1984). Complainant’s Post—Hearing Brief at 27—28. The Board

believes it is possible to apply the Section 33(c) factors in a

way that would overcome any deficiencies too literal a reading

would make apparent. The Board believes also that the non—

90—465

---

—28—

limiting language of Section 33(c) subsumes the factors in the

USEPA policy and obviates its application. Further, although the

USEPA policy may provide limited guidance in some future case,

its unnecessary application would likely result in confusion.

The Board will not apply the USEPA RCRA Civil Penalty Policy in

this case, but will apply Section 33(c) as intended by the

General Assembly.

The Board observes that no tangible “harm” resulted from

SCI’s non—compliance and will concede that the potential for

injury to or interference with “the health, general welfare, and

physical property of the people” was not vast, but neither was it

negligible. Misuse of the manifesting system and the improper

storage and transportation of hazardous wastes present a very

significant threat when done to avoid proper hazardous waste

disposal. That SCI engaged in these acts to avoid regulatory

compliance slightly diminished but did not eliminate the risk.

The Board cannot conclude that SCI’s non—compliance was

reasonable based on this factor. Rather, the Board concludes

that the purpose of improperly avoiding regulation is an

unreasonable basis for non—compliance.

Sd is of social and economic value to illinois and the

smaller community in which it resides. It is suitable for its

location. The Board finds with regard to these two factors that

SCI is a greater community asset, more compatible with its

environs, if it fully complies with the RCRA rules. The Board

concludes that the desirability of enhanced local compatibility

and value would make SCI’s non—compliance unreasonable.

The Board finds that compliance with the RCRA rules was both

technically feasible and economically reasonable for SCI. The

Board also finds that SdI incurred some slight economic benefit

through its non—compliance. The record does not reflect the

exact magnitude of this benefit, but it would probably include

the costs of more frequent hazardous wastes shipments (if SCI did

not desire to comply with the Board’s RCRA T/S/D facility

standards) and the costs of assembling all necessary

documentation and engaging in all required activities. On the

basis of these two factors, the Board concludes that SCI’s non-

compliance was not reasonable.

Other factors bearing on the reasonableness of SCI’s non-

compliance are discussed in more detail above. These are

included with the discussions of the individual violations to

which they pertain. They include the findings that Sd could

have complied with the regulations more promptly had it acted in

the full good faith that it now asserts (Counts I, II, and III),

that SCI could have complied had it not improperly sought to

avoid the requirements (Counts VII, VIII, IX, X, and XI), and

that SCI violated the rules and the Act for the improper purpose

of avoiding Agency detection (Counts V and VI). These force the

conclusion that SdI’s non—compliance was not reasonable. Similar

90—46~~

---

—29—

other factors in mitigation include possible initial confusion as

to the regulatory requirements (Counts I, II, and III) and the

fact that SCI had a legitimate right of access to the lot

adjoining its

plant (Counts V and VI). These mitigating factors

do not alter the Board’s conclusion that SCI’s non—compliance was

unreasonable. They do, however, impact what the Board feels is

an appropriate civil penalty.

Based on all the foregoing, the Board concludes that it is

appropriate for the Board to order SCI to cease and desist in its

non—compliant activities. This would include the cessation of

its shipments of hazardous wastes to unauthorized locations

without the use of manifests. Unless SCI is now in compliance

with the various T/S/D facility requirements that would apply to

it as a hazardous waste generator, it would include the cessation

of its non—compliance with those various provisions that the

Board has found SCI to have violated. It would also include

SCI’s non—compliance with those regulations the Board has found

SCI to have violated as a T/S/D facility. Finally, although the

People have not alleged it as a separate violation of the RCRA

rules, the Board would order Sd to cease and desist all

impermissible efforts at avoiding the regulatory requirements.

The rules provide that a RCRA permittee bears a burden of

providing requested information to the Agency and not hindering

Agency inspections. 35 Ill. Mm. Code 702.148—702.150 (1984).

SCI will possibly find itself subject to this requirement in the

future if its T/S/D facility status continues. The regulations

further require that a facility owner or operator must furnish

“all records, including plans, required under

...

Part 725)”

upon request during an Agency inspection. A failure to show

required hazardous waste drum markings is arguably a violation of

this provision. For these reasons, the Boards feels this last,

additional prohibition is both warranted and necessary in this

case.

The Board also feels that a non—punitive monetary sanction

would further the cause of RCRA compliance. Sd’s non—compliance

was not merely “technical,” and SCI acted less than forthrightly

to seek compliance with the rules. The Board does not agree with

the People that an aggregated penalty of $106,250 is

appropriate. See Complainant’s Post—Hearing Brief at 49. The

Board believes that the lesser aggregated civil penalty of

$10,500 will adequately serve the desired purposes of encouraging

future compliance and discouraging future non—compliance, without

acting as a predominantly punitive measure and severely impairing

SCI’s continued vitality. On the contrary, the Board feels that

a lesser penalty in this case would not adequately communicate

the desirability of compliance in light of the seriousness of

many of the violations committed. RCRA compliance decisions

cannot be left in the hands of the regulated community as a

balancing of the costs of compliance against the risks of

“getting caught.”

90—4(~7

---

—30—

The Board derives its aggregated $10,500 penalty from the

following count—by—count supplemental, independent

considerations, without reference to the statutory maxima:

Counts I, II, and III: $2,000 total. Had SCI paid a

professional engineer the then—prevailing rate of about $50 per

hour (see p. 526) for about 20 hours of work, it could have

promptly acquired the compliance requisites. The Board increases

this approximated cost by $1,000 to account for the aggravating

and mitigating factors outlined above, and to discourage non-

compliance risk—taking as a potential means of saving money.

Count IV: $500 total. This is a potentially serious violation

of the RCRA rules if it impairs the investigation of lost,

delayed, or improperly disposed hazardous wastes; results in the

release of hazardous wastes or hazardous waste constituents into

the environment; or results in a threat to human health or the

environment. However, in mitigation,

Sd investigated and

obtained the missing return manifest copy. The Board feels that

the penalty imposed properly encourages future compliance while

balancing the potential gravity of this type of violation against

the mitigating factor.

Counts V and VI: $5,500 total. These were the most serious

violations

of the RCRA rules and the Act——even apart from any

aggravating considerations——because they constitute actions

directed at removing hazardous wastes, even temporarily, from the

RCRA regulatory system. This amount includes $2,000 for SCI’s

failure to manifest its wastes for shipment to a permitted

facility and $1,000 for each day (July 6 and 7, 1983) or part of

a day that the record indicates the wastes were improperly stored

off—site. The Board imposes the additional penalty of $1,500 to

account for the mitigating and aggravating factors outlined

above, and

to discourage future attempts to improperly avoid

regulatory compliance by evading Agency detection of hazardous

waste—related activities. Engaging in surreptitious acts for the

purpose of avoiding Agency detection of the wastes and the intent

of avoiding regulatory compliance is egregious aggravating

conduct in the Board’s opinion.

Counts VII, VIII, IX, X, and XI: $2,500 total. Had SCI paid a

professional engineer the then—prevailing rate of $50 per hour

for 40 hours work, it would have promptly acquired most of the

required compliance requisites. It would have cost SCI at least

another $250 to acquire the necessary financial assurance for

RCRA

closure. The Board imposes an additional $250 penalty to

account for the

mitigating and aggravating factors outlined

above, and to discourage future attempts to improperly avoid

regulatory compliance by evading Agency detection of hazardous

waste—related activities.

In summary, the Board imposes $10,500 in civil penalties.

Of this total, $3,250 is the estimated amount that the Board

90—46 A

---

—31—

believes Sd saved by its non—compliance;

$2,000 is for two days

improper waste storage; $2,000 is for SCI’s failure to properly

manifest and ship wastes off—site; $500 is for Sd’s failure to

file an exception report; and $2,750 is imposed in light of the

aggravating and mitigating circumstances found to exist, to

discourage euture acts

of non—compliance, and to encourage future

compliance efforts. This amount is substantially less than that

sought by the People,

and much less than the maximum allowed by

the Act, but it is the

amount that the Board feels is appropriate

in this case.

IV. Fees and Costs

The

Act authorizes the Board to award fees and costs as

f 01

lows:

Without limiting any other authority which may

exist for the awarding of attorney’s fees and

costs, the Board

...

may award costs and

reasonable attorney’s fees, including the

reasonable costs of expert witnesses and

consultants, to the

...

Attorney General in a

case where he has prevailed against a person

who has

committed

a wilful,

knowing

or

repeated violation of the Act.

Any funds collected under this subsection (f)

in which the Attorney General has prevalied

shall be deposited in the Hazardous Waste Fund

Ill.

Rev. Stat.

ch. 111—1/2, par.

1042(f)

(1988).

The Board has found that SCI knowingly, wilfully, and/or

repeatedly violated the Act. Despite the fact that the People

have not specifically prayed for such fees and costs, see Second

Amended Complaint at 10—11, and because the record includes no

basis for awarding such fees and costs, the

Board hereby grants

the People 30 days until July 30, 1988 to file their petition for

fees and costs. If the People file such a petition, the Board

hereby grants SdI an additional 14 days from the date of filing

of any such petition to file its response. Any subsequent

filings shall only be accepted on motion within the discretion of

the Board.

VII. Final Action

This is a final action of the Board. The time period for

the purposes of 35 Ill. Mm.

Code 103.240 shall commence to

run

on this date for all issues except the propriety and amounts of

costs and fees.

90-469

---

—32—

The foregoing constitutes the Board’s findings of fact and

conclusions of law in this case.

ORDER

The Board hereby orders S.C. Industries,

Inc. to undertake

the following actions:

1. S.C. Industries, Inc. shall cease and desist from all

present and future violations of or non—compliance with

Ill. Rev. Stat. ch. 111—1/2, par. l021(f)(2) and 35 Ill.

Mm. Code 702.148, 702.149, 702.150, 722.120, 722.142,

725.113, 725.115(b), 725.115(d), 725.116, 725.151,

725.153, 725.155, 725.173(b)(7), 725.174, 725.175,

725.212(a), 725.242, 725.243, and/or 725.274.

2. S.C. Industries, Inc. shall, prior to 60 days after the

expiration of any time provided by 35 Ill. Mm. Code

103.240, tender to the Fiscal Services Division of the

Illinois Environmental Protection Agency at 2200

Churchill Road, Springfield, Illinois 62708, the sum of

$10,500 payable to the “Environmental Protection Trust

Fund.”

IT IS SO ORDERED

Board Member

3.

Anderson concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the abqi?e Opinion and Order was

adopted on the

~‘otZ

day of _________________________, 1988, by a

vote of

7—o

.

Dorothy M.4unn, Clerk

Illinois P~5llution Control Board

90—4 70