BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    April
    9,
    1992
    IN THE MATTER OF:
    )
    R90—25
    UTILITY INDUSTRY AMENDMENTS
    )
    (Rulemaking)
    TO THE LANDFILL REGULATIONS
    )
    (PARTS 810—816)
    )
    ORDER OF THE
    BOARD
    (by J.
    Anderson):
    On January 27,
    1992,
    the Board held the last in a series of
    five hearings in this matter.
    At that time,
    the participants
    were informed that there would be a 45 day comment period and
    that any comments were to be filed with the Board on or before
    March 12,
    1992.
    On March 16,
    1992,
    the Illinois Utility Group
    (Utility Group)
    filed a motion for an extension of time in which
    to file its comments.
    That motion was granted via a March 20,
    1992 hearing officer order.
    On March 25,
    1992, the Illinois
    Environmental Protection Agency (Agency)
    filed its commenta. in
    this matter.
    On March 26,
    1992,
    the Utility Group filed a motion
    to dismiss.
    In its motion to dismiss, the Utility Group requests the
    Board to dismiss the proceeding and states that it is withdrawing
    its regulatory proposal in its entirety.
    The Utility Group
    states that, subsequent to the January 27,
    1992 hearing in this
    case,
    it met to discuss the status of the proceeding and future
    activities.
    The Utility Group determined that a more prudent
    course of action would be for those companies immediately
    affected by the Board’s landfill regulations to seek regulatory
    relief via individual adjusted standard petitions.
    Specifically,
    Commonwealth Edison will be filing an adjusted standard petition
    for one of its facilities in the near future.
    The Agency,
    in its
    comments, states that it does not object to the Utility Group’s
    motion.
    Before acting on the motion to dismiss, we wish to express
    our concern over the supporting reasons given by the Utility
    Group,
    i.
    e. that:
    it “anticipated” that grant of category-
    specific relief for the utilities’
    landfills was “unlikely”;
    it
    “appeared” that the “Board was troubled” by the broad category
    relief, preferring adjusted standards instead; and “regulation of
    ash ponds, along with the alternative groundwater quality
    standards,
    continued to be problematic issues.”
    In granting the motion to dismiss, the Board emphasizes that
    its action should not be construed in any manner as implying
    agreement with the Utility Group’s supporting reasons, which are
    essentially a speculative assessment of Board reaction.
    As the
    proponents surely know from past experience before the Board,
    it
    is the record that must support any Board decision, and that
    132—163
    2
    record must be thorough enough for the Board to make an informed
    decision,
    as well as to withstand any appeal of that decision
    either by the proponent or another person.
    Close questioning to
    “flesh out” the record here was particularly important,
    for the
    reasons summarized below.
    The records in this proceeding and in the regulatory
    proceeding in R88-7
    (the new landfill regulations) show that the
    Utility Group shifted a number of times regarding not only the
    nature of the relief it was seeking, but also the category of
    facilitl it was including.
    The Board spent considerable
    resources essentially trying throughout the past sixteen months
    of this proceeding to discern what the Utility Group was
    proposing and to clarify what was the then-supporting
    justification.
    In fact,
    in our June 7,
    1990 second notice opinion in R88-7,
    the Board specifically noted that “the ground continues to shift
    regarding the industries’
    intent, timetable, and what they are
    requesting,
    including whether their proposal would cover existing
    landfills.”
    (see Second Notice opinion (June 7,
    1990)
    p.
    5,
    112
    PCB 83; Second First Notice opinion (March
    1,
    1990)
    p.
    38-40,
    109
    PCB 38-40).
    In the instant docket, the Utility Group’s first
    proposal, which was filed on November 29,
    1990, encompassed their
    new and existing ash landfills.
    On March 13,
    1991, the Utility
    Group filed an amended proposal which covered their new and
    existing ash landfills and “utility NPDES permitted surface
    impoundments” upon closure.’
    Also included was a brief reference
    to preserving authority to sell or re-use the wastes.
    On June
    10,
    1991, the Utility Group filed a second amended proposal
    covering their new and existing ash landfills and their new and
    existing ash ponds.
    The re—use provisions were somewhat
    expanded.
    Finally, on October 11,
    1991,
    the Utility Group filed
    a third amended proposal covering their new and existing ash
    landfills and their new, but not existing, ash ponds.2
    It was
    also in this last proposal that the Utility Group first
    introduced the concepts of re—use and recycling.
    The re—use
    provisions were fully detailed in this last proposal.
    We note
    that because of the Administrative Procedure Act’s time limits
    and the substantive changes that were made to the proposal during
    1We note that the Utility Group made no specific distinction
    between new and existing surface impoundments.
    We also note that
    certain existing surface impoundments do not have any monitoring
    wells.
    2Even though the Utility Group deleted existing utility ash
    ponds from its proposal, today’s dismissal should not be contrued
    as
    a determination that existing utility ash ponds do not become
    landfills upon closure.
    132—164
    3
    the course of this proceeding, the proposal needed to go back to
    a second First Notice.
    We wish to take note, moreover, of a comment that was made
    by the Agency.
    The Agency notes that,
    in light of the complexity
    of the subject matter,
    it will request an extension of the 30 day
    review period provided by 35 Ill. Adm. Code 106.714 if and when
    any adjusted standards are filed.
    We suggest that the Agency’s anticipated need for an
    extension beyond the 30 days may be avoided.
    The regulations
    anticipate that the proponent of the adjusted standard petition
    first submit its proposal to the Agency for pre-filing review so
    that the Agency can conduct an “up—front” review the proposal’s
    merits and so that the Agency can determine whether it wishes to
    act as a co—petitioner pursuant to 35 Ill. Adm. Code 106.704.
    (see In the Matter of:
    Petition of Keystone Steel and Wire
    Company for Hazardous Waste Delistinci,
    (May 23,
    1991), AS 91—1).
    Even if there should be disagreement,
    a review of the proposal
    and a 106.704 determination by the Agency at the outset will,
    in
    turn,
    allow for an expeditious proceeding before the Board and
    save.the resources of the participants and the Board.
    Accordingly, the Board hereby grants the Utility Group’s
    motion to dismiss and closes the docket in this matter.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    hereby certify that the above order was
    adopted on the
    9~
    day of
    (-~J~
    ,
    1992, by a vote of
    Dorothy M.~unn, Cl~rk
    Illinois Pállution Control Board
    132—165

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