ILLINOIS POLLUTION CONTROL BOARD

March 3, 1994

PERMA-TREAT OF ILLINOIS, INC.,

)

Petitioner,

v.

)

PCB 93—159

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINION (by C. A. Manning & N. NcFawn):

On January 24, 1994, the Illinois Environmental Protection

Agency (Agency) filed a motion for reconsideration of the Board’s

Opinion and Order in this case adopted on December 16, 1993,

wherein the majority of the Board found in favor of the

petitioner, Perma—Treat of Illinois, Inc. (Petitioner).

Petitioner filed its response on February 7, 1994. For the

reasons set out below, we would grant the motion for

reconsideration.

In its motion, the Agency addressed at length the

applicability of the “manufacturing” exemption raised by the

majority in support of its order deleting the permit conditions

contested by petitioner. That exemption, found at 35 Ill. Adm.

Code 721.104, originated in the majority’s opinion. Neither of

the parties raised this argument in their briefs or at hearing,

and neither party had opportunity to previously state their

position on its correct application to the set of facts before

the Board. Therefore, we would grant the Agency’s motion and, at

the least, respond to their arguments concerning its

applicability.

Upon consideration of the Agency’s arguments, we reiterate

finding that the waste pile is subject to RCRA clean closure

requirements. We note that we did not squarely address whether

the waste pile was exempt under Section 721.104, but rather

examined that section’s applicability to CCA released from the

waste pile. Upon reconsideration, we clarify that we agree with

the Agency argument that the waste pile is not in any part exempt

from RCRA closure requirements. By its very definition on

functions, the waste pile, including the drip pad at its base,

cannot be considered as part of the manufacturing process or a

non-waste treatment manufacturing unit and thereby exempt

pursuant to Section 721.104(c).

For these reasons, we would grant the Agency its motion for

reconsideration and address the new arguments about the

applicability of the Section 721.104.

---

2

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

Board, hereby certif hat the above dissenting opinion was

submitted on the

_____

day of

______________,

1994.

~

Dorothy N. 9~bn,

~.

Clerk

L~

Illinois Pc~,jutionControl Board

iL~~

Board Member