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

    Back to top