ILLINOIS POLLUTION CONTROL BOARD
February 1, 2001
IN THE MATTER OF:
PETITION OF HERITAGE
ENVIRONMENTAL SERVICES, LLC. FOR
AN ADJUSTED STANDARD FROM 35 ILL.
ADM. CODE 702.126(d)(1)
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)
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)
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AS 00-15
(Adjusted Standard - Water)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On May 17, 2000, Heritage Environmental Services, LLC. (Heritage Environmental)
filed a request for an adjusted standard from the Board’s Resource Conservation and Recovery
Act (RCRA) rules at 35 Ill. Adm. Code 702.126(d)(1). On May 26, 2000, the Illinois
Environmental Protection Agency (Agency) filed a response in opposition to granting the
adjusted standard. On May 26, 2000, the Board received a reply from Heritage
Environmental.
The Board’s responsibility in this matter arises from the Environmental Protection Act
(Act) (415 ILCS 5.1
et seq
. (1998)). The Board is charged to “determine, define and
implement the environmental control standards applicable in the State of Illinois” (415 ILCS
5/5(b) (1998)) and to “grant . . . an adjusted standard for persons who can justify such an
adjustment” (415 ILCS 5/28.1 (1998)).
A hearing in this matter was held on September 5, 2000, before Board Hearing Officer
John Knittle. On October 4, 2000, Heritage Environmental filed its posthearing brief, and on
November 2, 2000, the Agency filed its posthearing brief. Heritage Environmental filed a
reply on November 8, 2000.
1 The Board finds that Heritage Environmental has met the
requirements for an adjusted standard from 35 Ill. Adm. Code 702.126(d)(1) and accordingly
grants the adjusted standard.
STATUTORY AND REGULATORY BACKGROUND
Heritage Environmental is seeking an adjusted standard from 35 Ill. Adm. Code
702.126(d)(1) which requires each owner and operator of a RCRA facility to sign permit
applications using specified certification language (see 35 Ill. Adm. Code 702.121). Section
702.126(d)(1) is a part of the Board’s RCRA Subtitle C program and was adopted as an
identical-in-substance rulemaking. Section 702.126(d)(1) is identical-in-substance to 40 CFR §
270.11(d)(1), which was promulgated on September 1, 1983. Section 702.126(d)(1) provides:
1 The petition for an adjusted standard will be cited as “Pet. at __”, and the Agency’s response
will be cited as “Resp. at __”. The brief of Heritage Environmental will be cited as “PBr. at
__”, the Agency’s brief will be cited as “AgBr. at __”, and the reply brief will be cited as
“Reply at ___”. The transcript from the hearing will be cited as “Tr. at __”.
2
d) Certification.
1) Any person signing a document under subsection (a) or (b) of this
Section shall make the following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons that manage the
system, or those persons directly responsible for gathering the
information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware
that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment
for knowing violations.
* * *
The general procedures that govern an adjusted standard proceeding are found at Section
28.1 of the Act (415 ILCS 5/28.1 (1998)) and the Board’s procedural rules at 35 Ill. Adm. Code
104. Section 28.1 of the Act requires that the adjusted standard procedure be consistent with
Section 27(a). Under Section 27(a) of the Act, the Board is required to take the following factors
into consideration: the existing physical conditions, the character of the area involved, including
the character of the surrounding land uses, zoning classifications, the nature of the receiving
body of water, and the technical reasonability and economic reasonableness of measuring or
reducing a particular type of pollution. 415 ILCS 5/27(a) (1998).
Since the Board’s RCRA rules at 35 Ill. Adm. Code 702.126 (d)(1) do not specify a level
of justification from an adjusted standard, the petitioner must justify the adjusted standard in
accordance with the requirements of Section 28.1 (c)(1) through (c)(4) of the Act (415 ILCS
5/28.1(c) (1998)). Section 28.1(c)(1) through (c)(4) provide:
1. factors relating to that petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting the
general regulation applicable to that petitioner;
2. the existence of those factors justifies an adjusted standard;
3. the requested standard will not result in environmental or health
effects substantially and significantly more adverse than the effects
considered by the Board in adopting the rule of general
applicability; and
4. the adjusted standard is consistent with any applicable federal law.
BACKGROUND
3
Heritage Environmental operates a hazardous and non-hazardous treatment and storage
facility located at 15330 Canal Bank Road, Lemont, Cook County, Illinois. Pet. at 1. The
facility processes both hazardous and non-hazardous special wastes for blending and disposal
treatment. Pet. at 7. The operation conducted at the facility is the blending of ignitable
hazardous wastes into a supplemental fuel mixture for utilization by industrial kilns, boilers
and furnaces.
Id
. The facility also accepts wastes which are bulked and shipped elsewhere for
treatment/disposal, used oil management, aerosol can product recovery, elementary
neutralization, and container storage processing.
Id
.
Heritage Environmental is the sole owner of the facility. Pet. at 1. However, the
Metropolitan Water Reclamation District (District) is the owner of the real property upon
which the Heritage Environmental facility is located and leases the property to Heritage
Environmental. Pet. at 2. The facility currently operates under RCRA Part A and RCRA Part
B permits. Pet. at 3. The RCRA Part B permit was revised by the Agency on its own accord
with “approval” by Heritage Environmental on November 27, 1995. Pet. at 4. The revised
permit contained conditions that Heritage Environmental disagreed with and a permit appeal
was filed. See Heritage Environmental Services, Inc. v. IEPA PCB 96-146 (appeal dismissed
on April 6, 2000). As a result of negotiations to settle that permit appeal, Heritage
Environmental agreed to file a permit modification of the RCRA Part B permit. Pet. at 4.
The permit modification was to be accompanied by a certification pursuant to 35 Ill. Adm.
Code 702.126(d)(1). Pet. at 4.
The District “cannot execute the certification and attest, under penalty of law, that the
application was prepared under the District’s direction or supervision.” Pet. at 5. The Agency
indicated that it could not accept any other certification language. Pet. at 5. Therefore,
Heritage Environmental filed this adjusted standard.
At hearing in this matter Carlton Lowe, an attorney employed by the District, testified
on behalf of the District. Tr. at 13-14. One of Lowe’s duties is to manage the leasing of
District property to third parties. Tr. at 17. Lowe testified that it is the District’s
“understanding” that Heritage Environmental treats and stores hazardous materials at the
facility. Tr. at 18-19. Lowe further testified that the District “takes the position that it has a
responsibility to the public to manage its land efficiently and consistently” and the District
takes “pride” in being aggressive and aware of what is going on at its properties including this
facility. Tr. at 24. Finally, Lowe testified that the District would be willing to certify using
the language proposed in the adjusted standard. Tr. at 40-41.
ADJUSTED STANDARD PETITION
Heritage Environmental believes that based on the factors in Section 28.1 of the Act,
Heritage Environmental is entitled to an adjusted standard. Pet. at 6-7. Heritage
Environmental is seeking an adjusted standard from the Board’s rules that would require the
District, as the landowner, to sign the certification set forth in Section 702.126(d)(1). Heritage
Environmental is seeking an adjusted standard to allow the District to sign an alternative
4
certification. Specifically, Heritage Environmental is seeking an adjusted standard that would
have the District sign the following:
I certify that I understand that this application was prepared by a professional engineer
licensed in the State of Illinois and is being submitted for the purpose of obtaining a
permit to operate a hazardous waste management facility on the property as described.
As owner of the property, I have confirmed with the operator that the facility is in
compliance with all environmental laws and regulations applicable to the facility. To
the best of my knowledge and belief the information submitted is true, accurate, and
complete.
Section 28.1(c)(1)
More specifically, Heritage Environmental maintains that the factors relating to
Heritage Environmental are substantially and significantly different from the factors relied
upon by the Board when adopting Section 702.126(d)(1). The factors that are different are that
the District is a governmental entity and merely a landlord with respect to the facility. Pet. at
8. The District does not oversee the management or operations of the facility and does not
“possess the expertise in the operations and permitting requirements of a RCRA facility”
necessary to sign the certification in Section 702.126(d)(1).
Id
.
Heritage Environmental also refers the Board to a Federal District Court, Ninth Circuit
case which examined the USEPA’s policy reasons for requiring an absentee owner to sign a
certification under federal rule 40 CFR § 270.11(d)(1). In Systech Environmental Corporation
v. USEPA, 55 F.3d 1466 (9th Cir. 1995), the court outlined the policy rationale behind the
adoption of a requirement that an absentee owner sign a certification. The USEPA wanted to
ensure that the owner of a RCRA facility was aware of the nature and extent of hazardous
activity taking place on the property and make the owner aware that USEPA considers the
owner jointly and severally responsible for compliance with the permit conditions. Pet. at 9.
In Systech, the court allowed the property owner to sign a certification which was different
than the one in 40 CFR § 270.11(d)(1). The court found that the alternative certification was
sufficient to ensure that the owner was aware of the activities taking place on the property and
that the owner was jointly and severally responsible for compliance.
Section 28.1(c)(2)
Heritage Environmental argues that the District cannot comply with the certification
requirements and therefore Heritage Environmental’s ability to operate the facility is
“potentially compromised.” Pet. at 12. Heritage Environmental reiterates its arguments that
the District cannot sign the certification in Section 702.126(d)(1) because the District does not
possess the level of knowledge or expertise needed and because the District is merely the
landlord. The certification in Section 702.126(d)(1) would require the District to certify under
penalty of law that the permit application was “prepared under [the District’s] direction or
supervision in accordance with a system designed to assure that qualified personnel properly
gather and evaluate the information submitted.” Pet. at 13, citing Section 702.126(d)(1). The
5
District has no involvement in the operations of Heritage Environmental and therefore,
according to Heritage Environmental the District cannot make such a certification. Pet. at 13.
Heritage Environmental maintains that because all of the factors enumerated in Section 28.1(c)
can be demonstrated by Heritage Environmental, the adjusted standard is justified. Pet. at 12.
Section 28.1(c)(3)
Heritage Environmental asserts that the environmental or health effects of the requested
adjusted standard are not more adverse than if the adjusted standard was not granted. Pet. at
10. In fact, Heritage Environmental maintains that there will be no effect upon the
environment if the adjusted standard is granted because the facility’s actual operations will not
be affected.
Id
. Heritage Environmental points out that the requested adjusted standard would
still require the District to execute a certification; however, the language of the certification
would be different.
Id
.
Section 28.1(c)(4)
Heritage Environmental maintains that the Ninth Circuit addressed the validity of the
certification requirement when faced with the “exact factual situation” in Systech as Heritage
Environmental now faces. Pet. at 11-12. In Systech, the court allowed the absentee
landowner to submit an alternative certification. Pet. at 11-12. Heritage Environmental
asserts that based on the Systech decision, the requested adjusted standard is consistent with
federal law. Pet. at 12.
AGENCY’S RESPONSE TO THE PETITION
The Agency filed a response to the petition prior to hearing and indicated that it
opposes the granting of an adjusted standard to Heritage Environmental. Resp. at 2. The
Agency sets out four arguments in opposition to the granting of the adjusted standard. First,
the Agency asserts that the District should be the party seeking the adjusted standard not
Heritage Environmental. Resp. at 1-2. Second, the Agency alleges that the factors relating to
Heritage Environmental are not substantially and significantly different than the factors relied
upon in adopting Section 702.126(d)(1). Resp. at 2-4. Third, the Agency argues that the
language proposed will be inconsistent with federal law. Resp. at 4-5. Fourth, the Agency
maintains that “approval of the proposed alternative language may result in environmental and
health effects substantially and significantly more adverse than if the adjusted standard is not
granted.” Resp. at 5. The Board will discuss each of the Agency’s arguments in turn.
The District Should Be the Party Seeking the Adjusted Standard Not Heritage Environmental
The Agency points out that Heritage Environmental is seeking a modification of
Heritage Environmental’s RCRA Part B permit and the District, as the owner of the property,
has refused to sign the certification as required by the regulations. Resp. at 2. The Agency
asserts that Heritage Environmental is seeking relief from a requirement that the District sign a
certification, and while Heritage Environmental may benefit from the granting of the adjusted
standard, the District should be requesting the relief.
Id
. The Agency argues that because the
6
District is not seeking the relief, there is no guarantee that the District will sign the alternative
certification.
Id
.
The Factors Relating to Heritage Environmental are Not Substantially and Significantly
Different Than The Factors Relied Upon in Adopting Section 702.126(d)(1)
The Agency maintains that the factors considered by both USEPA and the Board when
adopting the language contained in Section 702.126(d)(1) are “nearly identical to the factors
present in this case.” Resp. at 3. The Agency argues that USEPA recognized that it is not
uncommon for an operator of a hazardous facility to lease land from a landowner.
Id
.
Because USEPA takes the position that an owner is jointly and severally responsible for
carrying out the provisions of the RCRA regulations, it is necessary to insure the owner is
knowledgeable about the activities at the site.
Id
. The Agency asserts that the aforementioned
factors are “nearly identical” to the factors surrounding Heritage Environmental and the
District.
Id
.
The Language Proposed Will Be Inconsistent With Federal Law
The Agency argues that Section 22.4 of the Act (415 ILCS 5/22.4 (1998)) requires the
Board to adopt rules which are identical-in-substance to the federal regulations and “at least as
stringent as the federal RCRA regulations.” Resp. at 4. Because the alternative language
proposed by Heritage Environmental is “considerably less stringent” than the language in
Section 702.126(d)(1), the language would be inconsistent with federal law according to the
Agency. Resp. at 4. Specifically, the Agency claims the language is less stringent because the
duty of the owner is reduced to “simply asking the operator whether it is in compliance” with
the laws and regulations applicable to the facility.
Id
. Further, the Agency asserts that the
language fails to encompass an owner’s awareness of the penalties for submitting false
information.
Id
.
As to Heritage Environmental’s reliance on Systech, the Agency asserts that the court
did not feel that the alternative language in that case, by itself was adequate because the
language did not require any due diligence inquiry on the part of the owner. Resp. at 5. The
Agency asserts that the Heritage Environmental’s proposed language is not even as stringent as
the language offered in Systech.
Id
. The Agency also argues that the Board need not follow
the Systech case as it is “not controlling in Illinois.”
Id
.
Approval May Result in Adverse Environmental and Health Effects
Essentially, the Agency argues that if the adjusted standard certification language is
granted to the District, other landowners may petition for adjusted certification language also.
The Agency asserts that this could lead to “diminished due diligence inquiries by landowners
regarding activities of their tenants” (Resp. at 6) leading to deleterious environmental and
health effects. Resp. at 5-6.
ARGUMENTS
7
After hearing, both Heritage Environmental and the Agency filed briefs in support of
their positions. In sum, Heritage Environmental argues that the factors in Section 28.1(c) of
the Act support granting the adjusted standard. The Agency disagrees and opposes the
granting of the adjusted standard. The following discussion will summarize the arguments in
each of the briefs.
Heritage Environmental Arguments
Heritage Environmental reiterates that it has established that the factors relating to
Heritage Environmental are substantially and significantly different than those relied upon in
adopting Section 702.126(d)(1). Heritage Environmental also maintains that the requested
adjusted standard is consistent with federal law and will not result in environmental or health
effects substantially and significantly more adverse than if the adjusted standard were not
granted. PBr. at 2.
More specifically, Heritage Environmental argues that the District is a governmental
entity which is authorized to operate within the limits of its corporate charter. PBr. at 3, citing
Tr. at 16. The authorization allows the District to lease property to private entities but it does
not allow the District to direct or supervise the preparation of any documents that relate to a
private operation unrelated to the District’s corporate purpose. PBr. at 3, citing Tr. at 42-43,
76. Heritage Environmental asserts that because of these factors, the District cannot sign the
certification as written in Section 702.126(d)(1). PBr. at 3.
Heritage Environmental claims that neither the USEPA nor the Board ever
contemplated the factors relative to Heritage Environmental and the District. PBr. at 3.
Heritage Environmental further claims that USPEA contemplated a landlord who may not be
aware of its joint and several liability or the nature of the operations of the RCRA facility at
issue.
Id
. However, here, the District is fully aware of the nature of the operations and the
District’s joint and several liability.
Id
. Therefore, Heritage Environmental maintains that the
factors relating to Heritage Environmental are substantially and significantly different than
those relied upon in adopting Section 702.126(d)(1).
Heritage Environmental asserts that the existence of the factors justify an adjusted
standard because Heritage Environmental is an owner and operator of a RCRA facility which
is situated on land owned by a governmental entity that does not have the authority to execute
the certification in Section 702.126(d)(1). PBr. at 4. Further, Heritage Environmental argues
that the “public policy” behind the relief sought lends further justification to the adjusted
standard.
Id
. The “public policy” Heritage Environmental refers to is that it is in the public
interest for the facility to continue to operate because it provides the marketplace with an
alternative for the management of hazardous waste.
Id
. Further, if Heritage Environmental
cannot get approval for its RCRA Part B permit, the facility would have to close and 70
employees would lose their jobs.
Id
.
Heritage Environmental argues that there are no more adverse health or environmental
effects if the adjusted standard is granted. PBr. at 5. Heritage Environmental points out that
8
the District has signed alternative language in the past which was accepted by the Agency and
such alternative language does not alter the day-to-day operations and policies relating to
compliance at the facility.
Id
. Heritage Environmental asserts that it has operated in “material
compliance” with all applicable laws and regulations under an alternative certification for over
a decade and if the adjusted standard is granted the daily operation controls and compliance
practice will not be altered.
Id
. Therefore, Heritage Environmental argues that the
environmental or health effects of the requested adjusted standard are not more adverse than if
the adjusted standard was not granted.
Finally, Heritage Environmental reiterates its position that the requested adjusted
standard is consistent with applicable federal law. In support, Heritage Environmental again
points to the Systech decision and argues that the proposed adjusted standard language is
consistent with that opinion and includes sufficient diligence on the part of the District to
ensure continuing compliance by Heritage Environmental. PBr. at 6. Further, Heritage
Environmental points to the testimony of the District that it is aware of the nature of Heritage
Environmental’ operations and its joint and several RCRA liability.
Id
. Therefore, Heritage
Environmental asserts the adjusted standard is consistent with federal law.
Agency Arguments
The Agency reiterates its arguments that the relief requested is inappropriate because
the District should be the party seeking the adjusted standard and that the relief requested is
inconsistent with federal law. The Agency also reiterates that Heritage Environmental has not
demonstrated that the factors relating to Heritage Environmental are not substantially and
significantly different that the factors relied upon in adopting Section 702.126(d)(1). The
Agency also puts forth a new argument that the Board cannot grant an adjusted standard from
an identical-in-substance rule.
In support of its argument that the Board cannot grant an adjusted standard to an
identical-in-substance rule, the Agency cites to
In re
Petition of Amoco Oil Company for an
Adjusted Standard from 35 Ill. Adm. Code 721.132 (December 18, 1997), AS 96-6. The
Agency asserts that the Board stated in Amoco that “any adjustment from the rule would
render it inconsistent with federal law, and the adjustment would not be permitted under the
Act.” AgBr. at 2. The Agency maintains that Heritage Environmental has requested an
adjusted standard which deviates significantly from the regulatory language and that relief is
not permitted under the Act.
Id
.
To support its assertion that the factors relating to Heritage Environmental and the
District are not substantially and significantly different from those relied upon in adopting
Section 702.126(d)(1), the Agency turns to the Board’s definition of “person” at 35 Ill. Adm.
Code 702.110. AgBr. at 3. The Agency points out that the definition of “persons” includes
corporations and political subdivisions.
Id
. Because the language of Section 702.126(d)(1)
requires any “person signing a permit application” to sign the certification, the Agency argues
that the Board contemplated that a governmental body such as the District would need to sign
the certification.
Id
. The Agency also states that the District “has admitted that it has signed
9
the certification application as submitted” to the Agency “for permits it is required to obtain.”
AgBr. at 3, citing Tr. at 45-46.
The Agency also argues that the Metropolitan Water Reclamation District Act (70 ILCS
2605
et seq.
(1998)) does allow the District to retain the authority necessary to sign the
certification in Section 702.126(d)(1). AgBr. at 4. The Agency points to language in that Act
which allows a lease by the District to “retain such interests . . . as considered in the best
interests of the sanitary district.”
Id
. The Agency asserts that given the language of Section
702.126(d)(1), “it would seem to be in the best interest” of the District to retains supervisory
authority.
Id
.
Finally the Agency reiterates that it believes the requested adjusted standard is
inconsistent with federal law. AgBr. at 5. The Agency argues that Heritage Environmental’s
reliance on Systech is misplaced as five years have passed since that decision was entered, “no
other courts have followed it and the USEPA has not amended its rules to conform to the
opinion.”
Id
. The Agency also believes that based on Amoco, the language is not consistent
with federal law.
Id
.
DISCUSSION
The Board must first address the Agency’s argument that the Board cannot grant an
adjusted standard from an identical-in-substance rule. The Board will follow that discussion
with an analysis of the Section 28.1(c) factors.
Does the Board Have the Authority to Grant an Adjusted Standard to an Identical-In-Substance
Rule?
The Agency argues that the Board cannot grant an adjusted standard to an identical-in-
substance rule and cites to Amoco to support its position. The Agency has clearly misstated
the law. Section 28.1 allows the Board “grant . . . an adjusted standard for persons who can
justify such an adjustment.” The plain language of the statue is clear. And the Board has
granted adjusted standards under RCRA regulations before. See
In re
Petition of Envirite
Corporation for an Adjusted Standard (December 19, 1994), AS 94-10;
In re
Petition
Toscopetro Corporation (formally Equilon/Shell Wood River Refining Company) for an
Adjusted Standard from 35 Ill. Adm. Code 725.213 and 725.321 (May 15, 1997), AS 97-3;
and
In re
Petition of Big River Zinc Corporation for an Adjusted Standard under 35 Ill. Adm.
Code 720.131 (April 15, 1999), AS 99-3.
Further, the case cited by the Agency, Amoco, represents an area of RCRA
authorization which specifically allows the use of the adjusted standard proceedings. 35 Ill.
Adm. Code 720.122(n). The Board denied the adjusted standard sought by the petitioner
because the petitioner failed to comply with the specified requirements of the Board’s rules on
how to qualify for the adjusted standard. In this proceeding, there are no requirements in the
rule for the granting of an adjusted standard; instead, Heritage Environmental must meet the
requirements of Section 28.1 of the Act.
10
Section 28.1(c)(1)
The Board finds that the factors surrounding Heritage Environmental and the District
are substantially and significantly different than those considered when adopting Section
702.126(d)(1). Although the Board agrees with the Agency that “persons” does include
government entities, the facts in this proceeding were not what were considered. In this case,
the District believes that it cannot sign the certification language, as it does not directly
supervise the application process. The District has declined to sign the certification in Section
702.126(d)(1) because the District does not have substantial involvement in Heritage
Environmental operations. The District is willing to sign an alternative certification which
more accurately reflects its participation at the site.
The Agency elicited testimony that the District has signed the Section 702.126(d)(1)
certification for permits the District must obtain. However, when reading that testimony, it is
clear that when the District has signed such certification, the facts were quite different than in
this case. Tr. at 45-46.
Section 28.1(c)(2)
The Board finds that the existence of the different factors justifies an adjusted standard.
First, the Board does believe that Heritage Environmental is the proper party seeking the
adjusted standard. Heritage Environmental is the person seeking the permit, not the District.
It is Heritage Environmental’s permit which the District must certify. Therefore, the Board
finds that Heritage Environmental is the proper party. As to the concern raised by the Agency
that the terms and conditions of an adjusted standard would be unenforceable against the
District, the Board is not persuaded. The requested adjusted standard would only allow an
alternative certification. The District would still be liable under the Act and the Board
regulations for the activities at the site. The adjusted standard would merely give alternative
language to certify its knowledge of the permit process and activities at the site.
Section 28.1(c)(3)
The Board finds that
the requested standard will not result in environmental or health
effects substantially and significantly more adverse than the effects considered when adopting
Section 702.126(d)(1). As stated above, the adjusted standard does not change the obligations
and responsibilities of the District. Rather, the language offers an alternative certification which
more accurately reflects the District’s involvement at the facility. Furthermore, the District’s
participation in this adjusted standard process demonstrates that it is aware of the nature of
Heritage Environmental’s business, and the District’s joint and several liability as owner of the
site.
Section 28.1(c)(4)
The Board finds that the adjusted standard is consistent with federal law. The policy
behind the adoption of the federal language upon which Section 702.126(d)(1) is based was that
the operator notify the owner of the nature and extent of hazardous waste activity occurring on
11
the owner’s property, and that the owner be made aware that USEPA considers the owner
jointly and severally responsible for compliance with regulations and permit requirements.
Systech, 55 F.3d 1466, 1469, citing 47 Fed. Reg. 32,038, 32,039 (July 31, 1982). Thus,
alternative language that meets those policies is consistent with federal law.
The Board is persuaded by the analysis of the court in Systech. The court found the
USEPA’s determination that the federal certification must be used verbatim “arbitrary and
irrational insofar as it requires an absentee owner of land on which another processes
hazardous waste to certify that the RCRA permit application was processed under his [the
owner’s] direction and supervision.” Systech, 55 F.3d 1466. The Board agrees and finds that
the language offered by Heritage Environmental in its adjusted standard request is sufficient
and consistent with federal law.
CONCLUSION
The Board finds that Heritage Environmental has demonstrated that the factors in Section
28.1(c) support the granting of an adjusted standard to Heritage Environmental. The Board finds
that the factors surrounding Heritage Environmental are substantially and significantly different
than those considered when adoption Section 702.126(d)(1) and that the existence of those
factors support an adjusted standard. The Board further finds that the requested standard will not
result in environmental or health effects substantially and significantly more adverse than the
effects considered when adopting Section 702.126(d)(1). Finally, the Board finds that the
requested adjusted standard is consistent with federal law and the Board grants the requested
adjusted standard.
This opinion constitutes the Board findings of fact and conclusions of law in this matter.
ORDER
The Board hereby adopts the following adjusted standard, pursuant to the authority of
Section 28.1 of the Environmental Protection Act:
1. The adjusted standard applies to Heritage Environmental Services, LLC.
(Heritage Environmental) and its facility at 15330 Canal Bank Road, Lemont,
Cook County, Illinois.
2.
The Metropolitan Water Reclamation District (District), as owner of the property
at 15330 Canal Bank Road, Lemont, Cook County, Illinois, upon which Heritage
Environmental’s facility is located, shall use the following language when signing
permit applications prepared for the facility at 15330 Canal Bank Road, Lemont,
Cook County, Illinois:
I certify that I understand that this application was prepared by a professional
engineer licensed in the State of Illinois and is being submitted for the purpose
of obtaining a permit to operate a hazardous waste management facility on the
property as described. As owner of the property, I have confirmed with the
12
operator that the facility is in compliance with all environmental laws and
regulations applicable to the facility. To the best of my knowledge and belief
the information submitted is true, accurate, and complete.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
service of this order. Illinois Supreme Court Rule 335 establishes such filing requirements.
See 172 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.520, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 1st day of February 2001 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board