ILLINOIS POLLUTION CONTROL BOARD
July 19,
1990
NATIONAL ENVIRONMENTAL
)
SERVICES CORPORATION,
)
Petitioner,
v.
)
PCB 89—129
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter comes to the Board on an August 15, 1989,
Petition to contest conditions imposed on permit filed by
National Environmental Services Corporation (“National”).
On
October
17, National filed an Amended Petition.
Hearing was held
December
13,
1989,
in Clinton, Illinois.
The Illinois
Environmental Protection Agency (“Agency”)
Post Hearing Brief was
filed January 19,
1990.
National’s
Post Hearing Brief was due on
January 19,
1990, but was not filed in a timely manner.
On
February
22,
1990,
the Board,
by Order,
informed National
that
its brief was overdue and announced the Board’s •intentiori
to
dismiss this proceeding
if appropriate documents were not
filed.
On February
26,
1990, National filed a motion for
extension of
time.
On March
2,
1990,
the Agency filed a response
in opposition
to the motion.
On March 16,
1990, the Board
granted National until March 30,
1990
to file
it brief,
and
granted the Agency until April 30,
1990 to file any reply.
On
March
29, 1990, National filed
its brief; on April
30,
1990,
the
Agency filed its reply.
National intends
to operate an incinerator
for infectious
medical waste at their
facility in Clinton,
Illinois.
They
started the process by acquiring an option on some property and
commencing a regional pollution control facility siting procedure
under Section 39.2 of the Environmental Protection Act
(hereinafter
“the Act”).
After
the County of DeWitt granted site
location approval, National applied to the Agency for a
construction permit.
Currently,
National is operating on the
construction permit which allows them to burn medical waste while
they plan
for and actually perform the trial burn and stack
test.
(R.
34—35).
National receives waste
that has been contained at the point
of generation
by the local health care facility or hospital.
The
waste
is
in sealed leak—proof and burst-proof containers.
The
container sizes vary from approximately ten pounds
to a limit
of
seventy pounds.
The containers are not opened;
the container and
113—305
—2—
waste are burned together and reduced to an inert ash.
(R.
27—
28).
National does not accept wastes which have been identified
or characterized as “Hazardous”
under Subtitle C of the Resource
Conservation and Recovery Act
(“RCRA”).
(R.
13).
National does
not possess and
is not seeking
a permit as a treatment,
storage
or disposal facility under RCRA Subtitle
C.
National’s incinerator system
is designed
to convert waste
to a combustible gas and ash by burning the waste
in an
atmosphere with only sufficient oxygen to keep the temperature
at
1800 degrees Fahrenheit.
This process
is called “sub—
stoichiometric”
or
“starved—air” combustion.
The gasses cooked
out
of the waste are conveyed by ducts to a secondary combustion
chamber where
they are mixed with sufficient air
to burn.
The
temperature in the secondary chamber
is approximately 2100
degrees and the gasses remain for
at least two seconds
to ensure
complete burning.
The hot gasses are cooled to
180 degrees by a
water
spray and then passed through an absorber bed to clean acid
gasses,
carbon monoxide and some carbon dioxide from the gas
stream.
(Amended Pet.,
Ex. A).
On March 13,
1989,
National submitted a Special Waste Stream
Application to the Agency for
a permit to accept
“infectious
waste generated within hospitals which meets
the definition of
‘Hazardous
(infectious)
Hospital Waste’
in 35
Ill.
Adm.
Code
809.901”.
(Administrative Record,
p.
18).
On July
10,
1989,
the
Agency issued to National
a revised Development Permit
(No.
1988—
06—DE) and Supplemental Permit
(No.
1989—092—SP) with generic
waste stream permit attachment.
That generic waste stream
attachment contains one clause “Waste Classification
:
Hazardous
Subject
to Fee”,
which is challenged
in the present action.
The
sole question on review
is whether the hazardous waste fee was
properly made applicable
to the present factual circumstances.
The statutory provisions relating to the hazardous waste
fees are found at Section 22.2 of the Act.
The relevant portions
of
that Section,
and related Section 3.49 are as follows:
Section
22.2
a.
There are hereby created within the State
Treasury
two
special
funds
to
be
known
respectively
as
the
“Hazardous
Waste
Fund”
and
the
“Hazardous
Waste
Research
Fund”,
constituted
from
the
fees
collected pursuant
to this Section.
b.
1.
On
or
after
January
1,
1989,
the
Agency
shall
collect
from the owner
or operator
of each of the
following
sites a fee
in the amount of:
*
*
*
*
*
113—3O~
—3—
d.
2
cents
per
gallon
or
$4.04
per
cubic
yard
for
1989,
2.5
cents
per
gallon
or
$5.05
per
cubic
yard
for
1990,
and
3
cents per gallon
or
$6.06 per cubic yard
thereafter
of
hazardous
waste
received
for
treatment
at
a
hazardous
waste
treatment
site,
if
the
hazardous
waste
treatment
site
is
located
off
the
site
where such waste
was
produced and
if such
hazardous waste
treatment site
is owned,
controlled and operated
by
a person other
than the generator
of
such
waste.
After
treatment at
such hazardous waste treat-
ment site,
the waste
shall
not be subject
to
any
other
fee
imposed
by
this
subsection
(b).
For
purposes
of
this
subsection
(b),
the
term
“treatment”
is
defined as
in
Section
3.49 but shall
not
include recycling,
reclamation or
reuse.
*
*
*
*
*
*
*
*
Section 3.49
“TREATMENT”
when
used
in
connection
with
hazardous waste means any method,
technique or
process,
including neutralization, designed
to
change
the
physical,
chemical
or
biological
character
or
composition
of
any
hazardous
waste
so as
to neutralize such waste
or
so as
render
such
waste
nonhazardous,
safer
for
transport, amenable for recovery, amenable for
storage,
or
reduced
in
volume.
Such
term
includes
any
activity
or
processing
designed
to
change
the
physical
form
or
chemical
composition of
hazardous waste so as
to render
it nonhazardous.
These statutory provisions govern assessment and collection
of the specified fees.
The sole question in this proceeding
is
whether the term “hazardous waste” as used
in Section
22.2,
includes hazardous hospital waste;
if
it does,
there
is no
question that National’s operation meets the Section 3.49
definition of treatment, and that National would properly be
subject to the fee.
The statutory provisions relating to
hazardous hospital waste are Sections 3.13 and
21
(m), which
provide as follows:
Section 3.13
“HAZARDOUS
HOSPITAL
WASTE”
means
waste
generated in connection with patient care that
is
contaminated
with
or
may
be
contaminated
with
an
infectious
agent
that
has
the
113—307
—4—
potential
of inducing an infection and has not
been
rendered
innocuous
by
sterilization
or
incineration.
*
*
*
*
*
*
*
Section
21
No person shall:
*
*
*
m.
Deposit
any
hazardous hospital wastes
in
any
landfill
on
or
after
January
1,
1981.
All
such
waste
shall
be
properly
incinerated
or
processed
by
an
alternative method pursuant
to regulation
adopted
by
the
Board..
This
requirement
shall take effect January
1,
1981.
In addition, the Act provides
a definition of
“hazardous
waste”.
That definition is found at Section 3.15 and states as
follows:
“HAZARDOUS
WASTE”
means
a
waste,
or
combination
of
wastes,
which
because
of
its
quantity,
concentration,
or
physical,
chemical,
or
infectious
characteristics
may
cause
or
significantly
contribute
to
an
increase
in
mortality
or
an
increase
in
serious,
irreversible,
or
incapacitating
reversible,
illness;
or
pose
a
substantial
present
or potential hazard to human health or
the
environment
when
improperly
treated,
stored,
transported,
or
disposed
of,
or
otherwise
managed,
and
which
has
been
identified,
by
characteristics
or
listing,
as
hazardous
pursuant
to
Section
3001
of
the
Resource
Conservation
and
Recovery
Act
of
1976,
P.L.
94—580,
or
pursuant
to
Board
regulations.
To support
its imposition of the fee requirement,
the Agency
presents essentially three arguments.
First,
the Agency asserts
that the general statutory and regulatory
language involved makes
it clear that this type of waste
has a hazardous component and
should be within the legislative directive to assess
a
fee on
hazardous waste.
Second,
the Agency asserts that prior Board
Opinions have articulated
Illinois policy that Hazardous
(infectious) Hospital Waste
is an Illinois Hazardous Waste and
that
it must be assessed a fee under
Section 22.2 of the Act.
Third that Agency asserts that regulations
it was required to
adopt, at
35
Ill. Adm. Code Part 855,
implementing the fee system
(pursuant to Section 22.2
(c)
of the Act)
require Hazardous
Hospital Waste Incinerators
to pay the Hazardous Waste Fee.
1 13—308
—5—
Perhaps the most persuasive argument presented by the Agency
pertains to the Board’s Opinion adopting the Emergency Rule
governing Hazardous Hospital Waste.
In R 80—19
(December
24,
1980) the Board specifically addressed the relationship between
Hazardous Hospital Waste and the hazardous waste
fee system:
It
is
the
Board’s
opinion
that
Hazardous
Hospital Waste,
a special waste,
is subject
to
the
supplemental
permit,
and
manifest
requirements
if
transported
off—site
for
sterilization
or
incineration.
Also,
such
hazardous hospital waste received by the owner
or operator of
a hazardous waste disposal
site.
is
subject
to
the
disposal
fee
system
of
Section
22.2.
Assuming,
of
course,
that
no
other special waste component
is present,
if a
hazardous
hospital
waste
is
properly
sterilized
on—site,
the
resulting
innocuous
waste is
rio
longer
a special waste, subject
to
the special waste
requirements
or
a
fee since
it
no
longer
poses
a
“potential
threat
to
human
health
or
to
the
environment.”
The
ashes
from
on—site
incinerated
hazardous
hospital waste are
to be treated
as
a special
“industrial process waste.”
(Emphasis Added)
(R80—19,
In the Matter
of:
Hazardous Hospital
Waste,
Sections
3(jj)
and
21
(h)
of
the
Environmental Protection
Act,
Emergency
Rule,
p.
7,
12/24/80).
The Agency argues that further support
for
this position comes
from the final opinion of
the Board
in that same regulatory
matter:
Pursuant
to
Section
22.2
and
the
Agency
criteria,
owners
and
operators
of
hazardous
waste disposal sites
must pay hazardous waste
disposal
fees
if
they
receive
hazardous
hospital waste.
(R 80—19, May
28, 1981,
p.3)
In its brief, National argues
that
the statutes and
regulations involved cannot apply
to hazardous
(infectious)
hospital wastes unless
the relevant language
is clear,
definite,
and free from ambiguities and vagueness,
so as
to be understood
by all entities involved.
National argues
that
the terms
“waste”,
“hazardous waste”, “hazardous hospital waste”, and
“hazardous (infectious)
hospital waste” are all used throughout
the statute
to apply to the materials being incinerated by
113—309
—6—
National.
Yet, they argue,
not all
of these materials are
subject
to
the
Section
22.2
fees.
National also argues that the framers of the legislation
employed
the
measurement
terms
“gallons
or
cubic
yards”
as
the
units of measure for the hazardous waste fee collection.
Since
neither measurement term
is used in the industry, National argues
that the legislation could not have been intended
to encompass
this type of waste.
Also,
National asserts that the intent of
the general assembly must be that the fee collected bear
a
reasonable relationship to the difficulties presented by the
waste and that the difficulties posed by National’s wastes do not
compare with that of heavy industrial waste.
National argues
that
the purpose of the fee
is
to fund clean—up of
sites which
clearly includes sites receiving wastes other
than the type
handled by National.
Lastly, National argues that the Agency’s
regulations at
35
Ill. Adm. Code 855.101
fail.
to include
hazardous hospital waste within the scope and, therefore,
the fee
cannot be collected.
Notably, National has not directly responded to any of the
arguments raised by the Agency
in its January 19,
1990 brief.
The Agency reply brief raised no new arguments relevant to
the disposition of this matter.
CONCLUSION
As a preliminary matter,
the Board notes that many of
National’s arguments are not on point.
The question presented is
one of
Illinois state
law regarding assessment of a
tax or fee on
certain activities.
The fact that federal regulatory law under
RCRA or CERCLA, does not
include particular infectious wastes
under certain statutory definitions
(R.
13—19),
seems not
to be
controlling.
Section 22.2,
setting fees on hazardous waste
activities,
was originally part of House Bill 453, which was
s:gned by the Governor to become Public Act 81-856 on September
21,
1979.
There were no federal regulations defining hazardous
waste
at that time.
P.A.
81-856 became effective on January
1,
1980.
There were
no federal
regulations defining hazardous waste
at that time.
Section 22.2 required the Agency
to establish
criteria and procedures
for the fee system and required the fee
system to be operational by April
1,
1980.
There were no federal
regulations defining hazardous waste at that time.
The first
federal regulations defining hazardous waste were promulgated on
May
19,
1980
(45 FR 33084, May
19,
1980)
and became effective
November
19,
1980.
In a similar manner, National’s testimony that they were
never aware that the activity would be taxed, and that their
operations might not be profitable
if
the fee applies
is not
relevant to the question of statutory interpretation.
113—310
—7—
As discussed below,
the Board determines
that it was the
intention of the General Assembly that hazardous
(infectious)
hospital waste
be subject
to the hazardous waste fee provisions
of Section 22.2,
and that such intent has been clearly expressed
in Agency regulations and Board Opinions
for almost
ten years.
The primary reason
for concluding
that such wastes are
subject to the fees of Section 22.2
is the statutory language.
The General Assembly used the word “hazardous”
in the definition
of hazardous hospital waste (Section
3.13).
The General Assembly
could have used the terms
“infectious waste”
or “pathological
wastes”
or
“biological wastes”
to connote a material
in need of
management without entrapping
it
in the hazardous waste schematic
of the Act.
Since
they used the term hazardous,
the Board must
conclude they intended such an association.
Further,
the
statutory definition of “hazardous waste”
(Section 3.15)
includes
the term “infectious characteristics”,
a strong indication that
the General Assembly intended that biologically active materials
could and would
fall within the definition of hazardous waste
subject to a
fee.
Also,
the General Assembly
in the definition
of
“industrial process waste”
(Section 3.17),
includes hospital
pathological waste among
the traditional
types
of materials which
National urges
(Brief,
p.4) as appropriately subject
to the fee
system.
In total, the Board concludes that the term “hazardous
waste” as used
in
the fee provisi.ons of
Section 22.2 of
the Act
includes the term “hazardous hospital waste”
as used
in Section
3.13.
In addition, Section 22.2 of the Act,
as originally adopted
in
P.A.
81—856,
required the Agency
to adopt procedures and
criteria for the implementation of that system not later than
April
1,
1980.
The Agency originally adopted emergency rules
to
implement the fee system,
later adopting them, essentially
unchanged,
as
final rules on August
27,
1980
(4
Ill.
Reg.,
No.
36,
p.
125, September
9,
1980).
The Agency stated the purpose of
the criteria:
“These criteria for
identifying hazardous wastes
are necessary for the operation of the fee system since a site
operator must be able
to
identify
a waste by utilizing the
criteria
to determine
if a waste is hazardous and therefore
subject to the fee.”
Section 2.0 of those criteria state:
“A
waste
is hazardous
if
it exhibits one or more of the following
characteristics:
corrosive,
flammable,
reactive, infectious,
toxic,
or persistent or a potential hazard.”
Later,
in Section
3.4,
the criteria provide a definition of infectious waste
that
includes,
“Any pathological
speciriiens and any articles attendant
thereto that may be disposed of from humans and animals known
to
be contaminated...” with a variety of listed diseases which must
be reported to the Department of Public Health.
These
statutorily mandated Agency criteria
would
clearly include the
type of wastes that National places at issue here today.
In addition, present Agency
regulations regarding the fee
system at 35
Ill. Adm. Code Part 855,
include
the definition of
113—311
—8—
“hazardous hospital waste” within Section 8b5.l02.
Also, Section
855.203 requires that records be maintained by,
“On—site
hazardous waste disposal sites,
including underground
injection
wells, and hospitals to the extent that they treat
or dispose of
on—site hazardous hospital waste...”
The Board must find that
Agency criteria and regulations clearly contemplate hazardous
hospital waste within the scope of the fee provisions of Section
22.2 of the Act.
Last,
but not least,
this Board has addressed the issue of
the applicability of the fee provisions to hazardous hospital
waste on at least
two occasions.
As argued by the Agency
in this
proceeding,
the Board stated on December
24,
1980,
that hazardous
hospital waste transported off—site for sterilization would be
subject
to the supplemental permits and manifest requirements as
well as the fee requirements of
Section 22.2 of the Act
(R80—l9,
In the Matter. of: Hazardous Hospital Waste,
Sections
3(jj)
and
21
(h)
of the Environmental Protection Act, Emergency Rule,
p.
7,
12/24/80).
Later, when the final
rule was adopted
in
that
proceeding,
the Board quoted from the Agency criteria which
included infectious waste within the fee system.
(R80—l9, Adopted
Rule Final Action, p.3,
5/28/81).
In summary,
the Board finds that the statutory language,
Agency regulations and criteria, and prior
Board Opinions all
support
the conclusion that hazardous hospital waste
is subject
to the fee provisions of Section 22.2 of the Act.
Therefore,
the
Agency imposed condition
in National’s permit
is appropriate.
This Opinion constitutes the Board’s
findings of
fact and
conclusions of
law in this matter.
ORDER
The supplemental permit condition “Waste Classification:
Hazardous Subject to Fee”
in the supplemental permit issued to
National Environmental Services is hereby affirmed.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
ch. lll~,par.
1041,
provides for appeal of
final
Orders of the Board within 35 days.
The Rules
of the Supreme
Court
of Illinois establish filing requirements.
IT
IS SO ORDERED
I,
Dorothy
M.
Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify that the abq~ieOpinion and Order was
adopted on the
/Y’-’--
day of
___________________
,
1990,
by a
vote of
~)
-~
.
~..
Dorothy M. ~unn, Clerk
Illinois Pollution Control Board
113—312