ILLINOIS POLLUTION CONTROL BOARD
October
6, 1983
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PCB 83—83
JOSLYN MFG.
AND
SUPPLY
CO.,,
an Illinois corporation, and
HERMAN
ZELDENRUST,
Respondents.
ORDER OF THE BOARD
(by
D.
Anderson):
On August 25, 1983
Respondent Joslyn Manufacturing and
Supply Company
(Joslyn) filed a motion to dismiss the July 11,
1983 complaint in this enforcement action,
along with a
memorandum
in support of the motion.
On August 30 Respondent
Herman Zeldenrust joined in this motion to dismiss.
On
September
1 the Complainant responded and filed a memorandum
in support of the response.
On September
2 Complainant
filed two different attachments to the response.
On Septem-
ber 19 Joslyn replied, and Herman Zeldenrust joined in the
reply.
On September 21, Complainant filed a rejoinder
entitled a “response to reply memorandum.”
In addition to the above substantive motions,
the
parties filed the following procedural motions:
On August
25 Joslyn filed a motion for leave to file its motion to
dismiss.
On August 30 Herman Zeldenrust filed a motion for
leave to file.
On September
1 Complainant responded to
these motions.
On September
7 Joslyn filed a motion for
leave to reply.
On September 12 Complainant responded.
All
of these procedural motions are granted.
On September 21
Complainant filed a motion to strike reply memorandum.
This
motion is denied.
The complaint alleges violations of the Act and Board
rules arising from open dumping of polychlorinated biphenyls
(PCBs)
.
Respondents have moved to dismiss on the grounds
that regulation of PCBs have been preempted by the Federal
Toxic Substances Control Act
(TSCA) (15 U.S.C.
§2617), and
that the Board has previously held that Chapter
9 did not
apply to PCBs.
A complaint alleging the same violations,
among others,
was previously filed in the Circuit Court of Cook County,
People
v. Joslyn M~j~& Supply Co. and Herman Zeldenrust,
82
CH 4220.
On April 21,
1983 the Circuit Court denied a
motion to dismiss which was made on similar grounds.
At the
same time the Circuit Court stayed the action before it “on
the grounds of primary jurisdiction”, pending the outcome of
proceedings before the Board.
The general intent of TSCA is to prevent unreasonable
risk of injury to health or the environment associated with
the manufacture,
processing, distribution in commerce,
use
or disposal of certain chemicals,
including PCB’s.
This
is
much broader than the provisions of the Act and Board rules
which limit disposal.
USEPA has promulgated regulations
which deal with disposal, with marking and with manufactur-
ing, processing,
distribution and use of PCB’s
(40 CFR 761).
The disposal regulations allow for disposal by incineration
and landfilling.
Section 18(a)
of
TSCA provides that in general nothing
in it “shall effect the authority of any State.
.
to establish
or continue in effect regulation of any chemical substance...”.
However, Section 18(b) (2) (B)
provides:
(B)
if the Administrator prescribes
a rule or
order under section 2604 or 2605 of this title
(other
than a rule imposing
a requirement described
in sub-
section
(a) (6)
of Section 2605 of this title) which is
applicable to a chemical substance or mixture, and
which
is designed to protect against
a
risk
of injury
to health or the environment associated with such
substance or mixture, no State or political subdivision
of a State may, after the effective date of such require-
ment establish or continue
in effect, any requirement
which
is applicable to such substance or mixture, and
which
is designed to protect against such risk unless
such requirement
(i)
is identical to the requirement
prescribed by the Administrator,
(ii)
is adopted under
the authority of the Clean Air Act or any other Federal
law, or
(iii)
prohibits the use of such substance or
mixture in such State or political subdivision (other
than its use in the manufacture or processing of other
substances or mixtures).
The Attorney General argues that TSCA has not preempted
the provisions of the Act and regulations alleged in the
complaint on two grounds:
first, that the provisions alleged
are not designed to protect against the same risk as USEPA’s
TSCA regulations;
and,
second, that provisions alleged were
adopted “under the Clean Air Act or other Federal
law.”
The violations alleged in the complaint are as follows:
open dumping in violation of Section 21 of the Act and Rules
201, 202(a),
301,
310,
313 and 315
of Chapter
7;
transportation
of special waste without a permit and,
contrary to regulations,
in violation of Rules
201,
301,
302(A),
302(B),
401 and 501
of Chapter
9;
and, deposit of contaminants on the land so as
to create a water pollution hazard,
in violation of Sections
12(a)
and 12(d)
of the Act and Rule 203(h)
of Chapter
3
(Section
302.210).
54-168
Both Chapter
7 and USEPA~sTSCA regulations deal with
disposal.
It is clear that Chapter
7 would be preempted to
the
extent that it could authorize disposal by iandfilling
under
circumstances which would violate TSCA.
However,
the
allegation
is open dumping,
an activity which is not an
authorized udisposa1~under the TSCA rules.
Indeed, the
complaint alleges that the spill residues were subsequently
excavated
and disposed of under TSCA.
With respect to open
dumping, Congress and USEPA intended that State prohibitions
should
supplement TSCA
(44 Fed,
Reg.
31515,
31528, May 31,
1979).
Congress obviously did not intend to provide a
defense which would authorize open dumping of toxic substances.
Chapter
9 provides a manifest system with cradle~to~
grave
tracking of special wastes to be hauled by permitted
special
waste haulers,
Although the TSCA rules require
marking, they provide no comparable protection from waste
transportation risks,
Again Congress and USEPA intended
State
regulations
to supplement the TSCA requirements.
Section 302,210 sets a water quality rule limiting
substances toxic to aquatic life to one~tenthof the 96~hour
median
tolerance limit.
The TSCA rules have no comparable
provisions
to protect against risks to aquatic
life.
Again
Congress
and USEPA intended the State Regulations to supplement
the TSCA
requirements.
The Attorney General has also argued that the provisions
of
the Act and Board rules alleged were adopted under the
authority of other Federal
law.
Although there are provisions
in
the Act and Board rules which establish programs under
Federal
law,
such as those establishing the NPDES and RCRA
programs,
the provisions alleged to have been violated are
independent of Federal
law.
Hence the Board has not based
its
denial of the motion to dismiss
on this argument.
In support of its second contention, Joslyn quotes the
Board~sJanuary
21, 1982 proposal for inquiry hearings in
R81-31.
The statements concerning PCB~sin that Order
were
questions
which were to have been answered in the proceeding
being
initiated.
That proceeding was dismissed on October
5,
1982,
with no findings of fact on PCB~s.
The motion to dismiss is denied,
IT IS SO ORDERED,
54-169
—4—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, he,9~ycertify that tJ~e~bove Order was
adopted on the
1Q
day of
~
1983
by a vote
of
4_c’
____
m~
oV
Christan L. Moff~t~4tClerk
Illinois Pollution Control Board
54-170