ILLINOIS POLLUTION CONTROL BOARD

July

7,

1995

IN THE MATTER OF:

)

PETITION OF CONVERSION SYSTENS,

)

 AS 93-4

INC.,

 FOR ADJUSTED STANDARD FROM

)

(Adjusted

Standard—Land)

35 ILL.

ADM.

 CODE 811

 (LINER)

CONCURRING OPINION

 (by J. Theodore Meyer and

J.

 Yi):

We concur for reasons of administrative fairness since a

majority of the Board previously decided that the relief being

sought by Conversion Systems,

 Inc.

 (CSI)

 was appropriate pursuant

to Section 28.1 of the Act.

 (415 ILCS 5/28.1

 (1994).)

 However,

for the reasons stated below,

 we would have joined the dissent in

that previous decision which allowed this matter to proceed as an

adjusted standard.’

Petitioner,

 CSI,

 sells a product known as Poz—O-Tec®

 (P02—

0—Tec) which, when used properly, converts

 a mixture of flue

desulfurization gas sludge and coal combustion ash

 into a

monolithic mass.

 CSI is promoting this product as a

technologically advanced alternative to the earthen/geomembrane

landfill liner currently used by most Illinois landfills.

The

adopted adjusted standard provides that the purchasers are

required to perform data collection and subsequent testing in

 order to demonstrate the

 effectiveness of the Poz—O—Tec process

to the Illinois Environmental Protection Agency

 (Agency).

The

adjusted standard in this case gives the purchasers of the Poz—O-

Tec process relief from 35 Ill. Adm.

 Code Sections

 811.105,

811.306—309,

 811.313,

 811.314,

and

 811.321.

 These regulations

establish certain requirements

 in the operation of a solid waste

landfill.

The adjusted standard provision,

 Section 28.1(c)

 of the Act,

was added January

1,

 1989.

 (415 ILCS 5/28.1

 (1994).)

The

provision was the product of negotiations between the

administration,

 state environmental agencies, the regulated

community and environmental groups and was promulgated to expe-

dite the Board’s rulemaking processes and regulatory relief mech-

anisms.

 Section 28.1(c)

 of the Act was intended as an

alternative to

 (but not an exclusive replacement for)

 the site—

specific rulemaking process which,

 at that time, was subject to

delay beyond the Board’s control pending completion of economic

10n AuguGt

 26, 1993,

 the Board issued an order, with two Board

Members dissenting, which allowed CSI’s petition to proceed as an

adjusted standard.

 (See

Board Order of August 26,

 1993,

 B. Forcade

and C.A. Manning dissenting.)

2

impact studies by the Department of Energy and Natural

Resources.2

 Clear from the very language of Section 28.1(c),

28.1(e)

 and 28.1(h)

 of the Act is the

 fact that the adjusted

standard procedure was never intended to be utilized as CSI has

here.

 For example, requirements

 for the publication of notice of

the £ilin9 oC

an

adjusted standard

in

Section 28.1(d)

 states that

it must be in “...the area likely to be affected...” and Section

28.1(c)

 states that

“.

.the Board may grant an individual

adjusted standards.

~‘

 show that an adjusted standard

 is for

site—specific relief.

 CSI cannot possibly know all future sites

where the Poz—O—Tec process may be utilized and can not possibly

demonstrate that each purchaser meets the justification

requirements of Section 28.1(c)

 of the Act.

While we do not believe that the adjusted standard

provisions are the appropriate procedural mechanism for the

granting of the relief sought by CSI, we do believe that there

are situations that adjusted standard relief

 is appropriate for

new technology.

 The adjusted standard given by this Board to the

Detroit Diesel Corporation

 (In the Matter of:

 Petition of

Detroit Diesel Corporation and the Engine Manufacturers

Association,

 (May 20,

 1993,

 AS 92—4))

 is one example of the

appropriate use of the adjusted standard.

 In that case the

Board’s granted the following adjusted standard:

Detroit Diesel Corporation

 is granted an eighty-five

percent

 (85)

 peak smoke opacity standard for all DDC

1987-1990 model year Series

 60 engines

 in lieu of the

fifty-five percent

 (55)

 peak opacity standard of 35

Ill. Adm. Code 214.141(a) (2).

Unlike CSI’s adjusted standard here where there are requirements

placed upon the purchaser

 in order to demonstrate the

effectiveness to the Agency,

 the Detroit Diesel adjusted standard

places no requirements on the purchasers and

 is simply an

adjusted standard for

 a particular type of engine produced by a

specific manufacturer.

 We believe that the requirements of the

adjusted standard in CSI and the

 lack of site-specific or use-

specific information in the record prohibit the requested relief

from being given pursuant to the adjusted standard provisions of

the Act.

However,

 the issue presented today is whether CSI, given the

previous decision of the Board,

 has shown that adjusted standard

is warranted.

 For the reasons stated we concur.

2The economic impact study was removed as a component of Board

rulemaking

by

 P.A.

 87—860,

 effective

 July

1,

 1992.

See

Environmental Register No.

 456,

 September

2,

 1992 at p.

1.

For the above stated reasons,

 we respectfully concur.

Bo~d

Member

Theodore

Meyer

I,

 Dorothy

Gunn,

Clerk

Board, hereby certify that the

submitted on the

,4,7l~Z

day of

________________

Qii~s4

Board ~iu~er

J.

Yi

..—

of the Illinois Pollution Control

above c

 urring opinion was

___________________

 1995.

Dorothy M.

94nn,

 Clerk

Illinois PoMution

 Control Board