ILLINOIS POLLUTION CONTROL BOARD

January

22,

1981

MERCY HOSPITAL AND MEDICAL

CENTER AND

THE ILLINOIS

HOSPITAL ASSOCIATION,

Petitioners,

PCB

80-218

ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

SUPPLEMENTAL

OPINION AND ORDER OF THE BOARD

(by J~Anderson):

By

its Opinion and Order

of December 19,

1980,

the Board

granted

petitioners a one~yearvariance with conditions

from its

rules

(Chapter

9 Part IX) implementing the prohibition of

Section

21(h) of

the Environmental Protection Act against deposit of

hazardous

hospital wastes in any landfilL

On January

5,

1981,

the Respondent

Illinois Environmental Protection Agency

(Agency)

and the

Attorney General filed a Motion for Reconsideration

and

for

Evidentiary

Hearing, to which petitioners responded January

19,

1981,

This

motion is hereby granted.

Respondent~s

first point concerns the scheduling of hearings

concerning

objections to the variance filed before December

24,

1980.

As

the Board on its own motion ordered such hearings

by

its Order

of January

8,

1981,

this point is moot.

The Board

acknowledges however

its receipt of

a

late filed objection

dated

January

14,

1981 from

a

resident of Grant Park,

Kankakee

County,

which states that

notice of the variance petition was not pub-

lished

until after December 24,

Although the Board notes that

this objector

waited

9 days after the date of publication,

the

Board

will consider this

last,

late objection.

The Board

accordingly

orders that

a

hearing be held in Kankakee County,

pursuant to

the same procedures established in its Order of

January

8,

1981.

The second

is that the Board issued

a

variance to

a class,

rather

than to individuals,

In

this regard,

the Agency reminds

the Board

that it had recommended that each petitioner be re~

quired to

affirm the veracity of the facts alleged as applied

to

each petitioner.

It

is further noted that the Board

granted

variance to

18 hospitals which it, on its own motion,

joined as

parties,

and

also

that

some hospitals individually named

in

the

petition were unaware that

the Illinois Hospital

Association had

petitioned for

variance on their behalf.

For these

reasons,

an

evidentiary hearing

is requested.

4

0-~35~

---

2

Petitioners

argue in effect that the Board did not grant

a class

variance, but instead granted variance to a number of

hospitals

whose individual requests were consolidated in one

petition.

Petitioners do suggest however that the Board adopt

their proposed

modifications to its Order, which would

require

hospitals

currently owning or presently acquiring

“incinerators

or sterilizers

which are ~

for the disposal

or

treatment of

hazardous hospital waste”...”to utilize this

means

of disposal”,..”to

the maximum extent possible”.. .“as

soon as

practically

possible” (emphasis added).

Before deal

~ng with each of these specific points,

the

Board

will address

the “hazardous hospital waste” area generally.

The

Board remarked

in its Opinion of December 24, 1980 in

R80-19,

that to its

knowledge Illinois was the first state to legislate

specific

special

handling of hazardous hospital waste.

For

this,

and other

reasons

there mentioned, the establishment of

the

administrative

mechanism for determining and enforcing

compliance

with the mandate

of Section 21(h)

has, regrettably,

not been

completed.

On

December

19,

1980, the Board did complete

what it views

as the

first

phase of the implementation program, that

is,

the

adoption of

its emergency rules, effective January 1,

1981.

These rules

corrected some

major

misconceptions, by making

clear,

for instance, that “hazardous hospital waste”

is not synonomous

with “pathological

waste;” that radiological and chemical

wastes,

while dangerous,

are not statutory “hazardous hospital wastes;”

and that

“hazardous hospital wastes” cannot be deposited even

in

a hazardous

waste landfill, according to the statut&s terms.

The emergency

rules, based on the best information then available

to the

Board as a result of its inquiry

hearings,

remain in effect

only for

150 days as dictated by the Illinois Administrative

Procedures

Act (APA),

On the same day, initiating

the second phase, the Board

adopted

proposed rules which will be “fine~tuned”during the first

90-odd days

of the emergency rule period pursuant to the public

hearing

and comment requirements of the Act and the APA,

While

these

proposed rules are virtually identical to the emergency

rules,

the

difference

is noteworthy, as it highlights the

interim,

“first

draft”

nature of the emergency rules,

The emergency

rules

state that

issuance

of a permit by the Agency for an

incinerator

for Chapter

2

air pollution emission limitation

purposes

is deemed

issuance

of a permit under Chapter

9,

thus temporarily assuming

that a

given pathological incinerator can effect sterilization,

i.e.

kill all microorganisms in any or all specific types

(e.g.

human tissue,

paper, plastic,

glass) of “hazardous hospital

waste.”

The

proposed

rules do not perpetuate this assumption, which

was

made only

for emergency, phase~in,administrative

need

in

recognition

of inquiry hearing testimony by

the

Agency that:

“At

this time the Agency is not absolutely

certain

that

such incineration,

sterilization or

other

alternative

40—356

---

3

disposal

means do render these materials innocuous.

We need to fully research this question.’

(R80-19 In-

quiry Hearing of 11—17—90, p. 221.

See also p. 227—233)

The Board anticipates receiving the fruits of that research during

this second,

permanent

rulemaking phase.

In short, until completion

both

of the Board’s permanent

rulemaking

processes,

and

the

substantive

and procedural review

of

the resulting rules under the APA by the Joint Committee on

Administrative Rules, neither the Board, the

Agency

the hospitals,

nor the landfill operators will be absolutely certain of the

compliance requirements of Section 21(h).

Accordingly,

one

of

the

arbitrary

or

unreasonable

hardships

to

which

the

Board

gave

weight

in

its

deliberations

concerning

the

petitioners’

variance

petition

was

the

uncertainty

concerning

ultimate

compliance

requirements,

which

uncertainty

will

continue

for

approximately

another

four

months

•

Given

the

fact

that

in-

creased

health

care

costs

are

shared

by

the

entire

community

of

Illinois

citizens,

and

given

the

Board’s

belief

that

the

Act

implicitly

charges

it

to

avoid

imposition

of

unnecessary

costs,

the

Board

in

granting

variance

required

each

individual

hospital

to

submit

a

compliance

plan

only

after

compliance

requirements

are

reasonably

solid.

As

petitioners

correctly

point

out,

the

Board

did

not

grant

variance

to

a

class.

Variance

was

granted

to

individually

named

hospitals,

each

of

which

must

individually

certify

acceptance

of

the

variance

on

or

before

45

days

after

the

December

19th

Order

(February

2,

1981)

and

each

of

which

must

file

a

ccmpliance

plan

for

‘its

own

facility,

taking

its

own

individual

circumstances

into

account,

on

or

before

150

days

after

the

date

of

the

Order.

The

Agency

and

the

Attorney

General

essentially

are

arguing

that

the

Board should have severed the consolidated petition into 276

separate, proceedings, and instituted 18 additional ones for the

hospitals not named in the petition.

Interrogatories and/or

amended petitions

would

have

been

required

from

each

hospital,

attesting

to

and

describing

their

individual

circumstances.

Yet,

from

the

way

their

argument

is

framed,

the

Agency

and

the

Attorney

General

seem

to

suggest

that

the

Board

should

consolidate

the

cases

for

the

purposes

of

an

evidentiary

hearing.

(The

Board

must

point

out

that

neither

the

Agency

nor

the

Attorney

General

exercised

their

statutory.. right,

to

object

to

grant

of

the

variance,

which

would

have

triggered

Board

authorization

of

hearing

in

this

matter

even

though

petitioners

had

waived

hearing.

As

previously

stated,

the

Board has already authorized hearings on objections filed.)

The

early

consolidation

approach

taken

by

the

Board,

which

requires

individual

submission

of

certification

and

a

compliance

plan, satisfies the recognized need for specific, individual

information

at

a

more

appropriate

time,

and in

a

more

appropriate

manner,

than

does

the

late

consolidation

approach.

The

Board

did

not

and will

not

require

each

petitioner to immediately verify,

40—357

---

4

perhaps

inaccurately,

its

ability

to

comply

with

regulations

currently

in

a

state

of

flux.*

The

18

hospitals

joined

by

the

Board,

as

well

as

the

‘previously

unaware’

hospitals

to

which

the

Agency

refers,

each

shares

the

aforementioned

administrative

uncertainty

hardship

alleged

by

the

original

petitioners.

Each

also

has

the

same

option

to

refuse

the

variance

if

it

so

chooses,

by

doing

nothing

(i.e.

not

filing

an

acceptance).

For much the

same

reasons,

the Board

declines to incorporate

petitioneis’ suggested language

into

its

Order

of

December

19,

• 1980.

However,

it

has

come

to

the

Board’s

attention

that

its

• variance

is

being

construed

by

some

persons

as

an

exemption

or

‘total

pass’

from

any

conditions

for

a

year.

The

Board

believes

that

the

last

sentence

of

its

previous

Opinion,

stating

that

the

• variance

was

not

to

‘be

construed

as

authorizing

petitioners

to

•

relax

the

level

of

control

presently

required’

made

it

reasonably

clear

that

each

petitioner

was

to

comply

to

the

utmost

extent

pos-

sible

currently

or

in

the

near

future.

Until

such

time

as

full

•

compliance

is

achieved,

the

Board

expects

each

petitioner

to

dispose

of

as

much

of

its

hazardous

hospital

waste

as

is

practicable

and

•

environmentally

safe

by

incineration

or

sterilization.

•

*xn addition, the Board wishes

to

prevent

a

situation

in

which, for public relations or other reasons, a hospital might

•

certify its ability to incinerate all of its waste, but then

• proceed

to

overload

or

improperly

‘charge’

its

incinerators

in

•

order

to

do

so.

Incomplete

burning

and

the

resulting

discharge

and

widespread

dissemination

of

infectious

agents

through

the

incinerator’

s

stack

might

create

a

greater

public

health

threat

than

disposal

of

the

waste

in

an

authorized

landfill.

ORDER

1.

Rearing on the objection filed January 14, 1981 shall be

scheduled

and

held

in

Eankakee

County

pursuant

to

the

established

in

the

Board’s

Order

of

January

8,

1981.

2.

Having

reconsidered

its Opinion and Order of December 19,

1980 pursuant

to

respondent’s

Motion

of

January 5, 1981,

the Board

supplements

that

Opinion

and

affirms

that

Order.

IT

IS

SO

ORDERED.

Mr.

Werner

concurred.

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

•

Control

Board,

hereby

certify

that

the

above

Supalemental

Opinion

and

Order

Order

waq

adopted

on

the

)4

‘~‘

day

of

____________

l98lbyavoteof

Sd-C

.

7)

(i~A~44k~~is4

i~

Christan L. MoffeQ~,Clerk

Illinois Pollution Control Board