MiktMcCarlbridge
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Re:
Fw:
Illinois
adequacy
Page
1
RECEIVED
CLERK’S OFFICE
From:
Mike McCambridge
NOV
01
2005
To:
Westefer.Gary~epamaiI.epa.gov
Subject:
Re:
Fw:
Illinois adequacy
STATE OF ILLINOIS
Pollution Control Board
Thank you forforwarding the e-mail from Morton
Dorothy.
As
I
explained,
this relates to
a Board case
PCB 050-49, which
is presently pending before the Board.
The case involves a six-count citizen
enforcement complaint filed September 8, 2004 by Mr.
Dorothy
against Flex-N-Gate Corporation.
On
October 20,
2005, the
Board granted summary judgment against Mr.
Dorothy on Counts
II through
VI of
the complaint
and ordered the hearing officer to proceed to hearing on
Count
I.
Thus, this
matter is still
pending before the Board.
It is
not yet ripe for appeal to
the Illinois appeliate court.
I
will print
a copy of your original e-mail together with this response and
submit them to the Clerk’s office
for entry into the docket
in PCB 05-49
as public comments.
Even though
our conversation concerned
solely the procedural posture of the
case, entry of this material into the record is necessary
to avoid any
implication of improper communications on
a pending
matter,
consistent with the Illinois Ethics Act.
Westefer.Gary©epamail.epa.gov
11/01/05 11:29AM
Forwarded by Gary Westefer/R5/USEPA/US
on 11/01/2005 11:26AM
MDor4248@aol.com
10/31/200511:20
To
?
~
o~—’-j-~
GaryWestefer/R5/USEP1AJUS@EPA
cc
Subject
Illinois adequacy
Gary:
Haven’t talked
to you in a
long time!
I
have sent the following letter to Skinner.
Thought
I’d let you read
it
before he gets it.
Morton
Mr. Thomas V.
Skinner
Regional Administrator
US EPA
Region 5
77 W. Jackson
Blvd.
Chicago,
IL 60604
MikcT’McCarnbridge
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Re:
Fw:
Illinois adequacy
Page 2
Re: Illinois RCRA authorization
Dear Mr.
Skinner:
This letter is intended to transmit substantive information that the
Illinois RCRA program may no longer be adequatewithin
the meaning of 40
CFR 239.13.
I
am the complainant in
Pollution Control Board case PCB 05-049. This
case grew out of
an accident
in which
a pipe carrying
concentrated
sulfuric acid separated, spilling the acid
onto hazardous waste that had
accumulated on the floor under tanks
in an electroplating operation. The
acid
reacted with the waste, generating
hydrogen sulfide gas.
This was
an unexpected result,
in that the waste had
not previously
been known to
contain sulfide.
The factory is
a
large quantity generator of hazardous waste that
operates without a RCRA permit
pursuant to the Illinois equivalent of 40
CFR 260.34. Among other things, it is required to have
a contingency
plan, to
follow the contingency plan
in an emergency,
to notify the
Illinois
EPA,
and
to amend the
plan in the event the plan fails.
The
facility had a contingency plan,
but failed to follow the plan
in any
significant respect, and failed
to
notify. The facility has not amended
the plan in response to the failure,
specifically failing to
modify the
plan to address any future hydrogen sulfide release
incident.
The Illinois
EPA investigated this incident
Factory management
essentially denied that the
incident had
occurred, and
IEPA took no
action.
I
then filed
a citizen
enforcement action with the
Pollution
Control
Board.
Management has admitted in discovery that the incident
took place.
On October 20,
2005, the Board granted summary judgment
in favor of the
facility as to the counts alleging violation of the contingency plan
requirements,
reasoning
that the
released hydrogen
sulfide was an
“uncontained gas”, and therefore not a “solid waste” within the meaning
of RCRA.
The Board cited
Helter v. AK Steel
Corp.,
1997
U.S.
Dist LEXIS
9552(S.D.
Oh.
1997).
Helter involved a release of a byproduct gas from
a broken
pipe, which
gas was not a
“solid waste” or a “hazardous waste” prior to release. The
plaintiff in that case had argued that RCRA applied to
the released
gas.
The Court held that the gas
did not become
a “solid waste” upon
release,
because of the “uncontained gas” exclusion.
In the case before the
Board, on the other hand,
the gas originated from
material that was
already a hazardous waste and subject to the contingency planning
requirements.
The release of the gas was a trigger for implementation of
the contingency plan with respect to the hazardous waste on the floor,
regardless
of whether the
released gas was itself a “solid waste” or
“hazardous waste”.
The
Board’s extension of
Helter undercuts all RCRA regulations aimed at
protecting workers
and the public from gaseous emissions from hazardous
waste,
including emissions from sulfide and cyanide
bearing
reactive
waste, since
such emissions would almost always be “uncontained
gases”.
•
MikeMcCambridge
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Re:
Fw:
Illinois adequacy
Page
3
Specifically,
hazardous waste
management facilities (including
conditionally exempt generators)
no longer have to comply with the
following
requirements:
•
Facilities handling
potentially reactive waste
no longer have to
prepare contingency
plans for dealing with
a toxic gas release. (Section
265.51)
• Because
toxic emissions are excluded from contingency planning,
facilities no longer have to:
train workers concerning the dangers of
toxic gases from mixing acids with
reactive wastes;
provide meters or
respirators effective against foreseeable toxic gases; train
workers in
the use of such protective equipment; or,
notify
local emergency
response teams of the
possibility of toxic gas emissions.
•
Facilities no longer have to notify IEPA or local
emergency response
teams about toxic gas releases from
hazardous waste.
(Section 265.56)
These important elements are now missing from the Illinois RCRA
program.
USEPA needs
to initiate a withdrawal of determination of adequacy
procedure until
the State
remedies this ruling.
I intend to file
a
motion for reconsideration with the Board
in
the near future.
Quick
action on your part would allow the Board to reverse itself.
Sincerely,
Morton
F. Dorothy
