ILLINOIS POLLUTION

CONTROL

ROARO

July 7,

1995

IN THE

MATTER

OF:

PETITION OF CONVERSION SYSTEMS,

)

AS 93-5

INC.,

FOR ADJUSTED STANDARD FROM

)

(Adjusted Standard-Land)

35 ILL. ADM. CODE 811

(MONOFILL)

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®

(Poz—

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)

or 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

‘On 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 riling of 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

1•

.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

Enc~ine

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.

---

3

For the above stated reasons,

we respectfully concur.

Do&~dMembe~?”~’

J. Theodore Meyer

I,

Dorothy N.

Gunn,

Clerk

Board,

hereby certify that the

submitted on the

/~.?~dayof

Board

J. u1~/

_—

of the Illinois Pollution Control

above c

curring opinion was

____________,l995.

Dorothy M.

G~tin, Clerk

Illinois Po(Jution

Control Board