ILL:NOIS

POLLUTION

CONTROL

BOARD

December

17,

198:L

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY ~

PCB

80—185

PIELET

BR0S~

TRADING~ INCh.

Respondents

CONCURRING

OPINION

(by

D.~ 2~nderson)

I

concur

with

the

result

in

this

case.

however,

I

differ

from

the

majority

on

two

matters

:Leadinq

to

the

result:

first,

I

would

not

acknowledge

that

it

might

be

a

defense

to

vi~tation

of

permit

conditions

that

the

permit

was

not

recuired;

and,

second,

I

would~iot

extend

the

Reynolds

rationale

to

this

case.

The

courts

have

held

that~

none

cannot

defend

oneself

in

an

enforcement

action

alleging

failure

to

receive,

a

perniit

by

claiming

the

permit

a~pl±cation was

wronofullu

denied.

The

Act

provides

a

means

t”~

prcro~

cbs.

ft

application”

(IEPA

v

Allaer~

Re? cer

St.

~e

~

~r~JCr,

December

12,

1980)

A

sim~Ia~

~

arcs

e

‘~

h~.nondent has

been

issued

a

permit.

and

is

cha~ced

with

viciLsifon

of

the

condi-

tions,

Pielet

should

have

appealed

the

cc~nditions

to

the

Board

if

it

found

them

onerous

The

Board

could

also

have

reviewed

the

question

of

whet

or

the

permit

was

reu~lred

if

the

issue

had

been

raised

on

~

~t~rw1~,

~ti~p~r~øit

~rnñ~eation

eQn~

stituted

an

admission

that

the

permit.

~ias

tee uired

where

there

was

no

preservation

of

rights

throuah

appeaL

The

second

point

concerns

the

decision

that

the

permit

was

in

fact

required

because

the

on~site

oxomptfoa

of

§21(d)

of

the

Act

was

not

applicable

The

Opinion

recites

rh~ size

of

the

facility

and

quoteL

Re~nc~c~e

r

‘~

“9~l,

November

19,

198L

Tnis

rateona~T~ohectsonab!e

cot

tee

reasons

set

forth in the

dissenting

Opinion

in

Reynoldcs,

Reynolds

and

the

:~rs lots

cases

aLonq

thIS

line

required

permit

6nY

of

big

facilities

disposing

of

wasse

in

quarries.

There

is

no

quarry

:Lcs7clved

hera

This

ease

extends

the

Reynolds

rule

to

require

permits

of

on~site

facilities

athich are

merely

big~

I

concur

in

the

result

that

a

permit

is

required

of

this

facility.

I

wou1d~ howeverF

:5~1J,owthe

rationa:Le

of

R.E,

JQOS

Excavating v~

iEPA~ POD

76~2~2~

ltd

Dist~

March

31r

1978.

L~4—225

---

Joos held

that the onsite pens t ex’~ep~ioeas not

applicable

because

the

waste was generatee Ci

site different

from

the

disposal site0

This is very ~r~ha~

~a

The

on-site

exemption was ~

edac

~a~1y

to

waste

generated by a

manufacturing

a~osst~ci’ ux

I

d~sposed

of on—site.

For

example,

a facility manufactu tsp aftci

bile

seats is allowed

to landfill

fabric trimmings a’~ chce

~‘t~~urthut

a permit.

This

is vastly

different from Pielet~s

?~rat~cr~

~e

which

it processes

waste

automobiles,

salvaging part and landliiing

part.

The

exception was

not

intended

to

apply

to

this.

In this

case

automobiles

which

hsi

ie~.~d

their

original

purpose are

discarded by owners0

The~become waste

prior to

transportation

~o Pie1et~sfacility

Io~prcsssing0

The

waste

is generated

by the owners of the e~tsmobi)c’,not

by

Pielet’s

salvage

operation0

It is therefore

~ot genes ~ed ~t

Pie.et’s

disposal~ite,

the

on-site

exemptias

ina~uicable

and

a

permit

is

required0

The fact

that Pielet pays

i r tee eutomo

les is

irrelevant,

Waste is

judged

from the persp~cti

ci

tha generator.

The fact

that it is

valuable

to some processor ~s ~,rce~vant0

To hold

otherwise creates a

vast loophe

-~

i’t

ttc

~‘sa

c.

permit

system:

recyclers could

operate landfLi,e ~djac ut n

aecovery

facilities

and

be outside

the permit sy~t~

Lts ~

a~-yc1ing

is to be

encouraged,

it

should be enco rsgee

~cc permit

system

where there

is

Agency review of p~.~pii~ a~

construction

and

periodic

inspections

and monit~~

The 8oard~s

decision

in

daLeb\

lc~.

~

‘~

h’A

(PCB

80—12,

February

7,

1980,

~7 P~

361

~.

~

~Thcen

quoted in

other cases

as

holding that secycLLlc

adt.~5it~

are

not waste

in Illinois.

This overlooks the unigus ~cc

I

Safety—kleen’s

operation:

it

owned the solvc~tt~whj~s~

th

red to

users.

It

was the generator

as well as the press

a

ci

the

solvents.

which

were

therefore

not waste from 5~rt~~kLaen~s

perspective.

A hold~.ng

that

valuable material is no

~

us asuid

remove the

entire solvent

recycling industry ii~r

~

7 and

9.

This

is inconsistent

with the Board~searaf~I;

‘sleed

language

in

Safety-ki.een.

~TTh~~a

N&mber

---

I,

Christan

L.

Moffett,

Cisri:

i:d’:~

h1:Linois

Pollution

Control

Board,

do

here~~

certli

C

ac

tics

above

Concurring

Opinion

was

filed

on

the

~

dap

of

~

1981,

3cr; ~

“~

ift

Je~on

Control