ILLINOIS POLLUTION CONTROL BOARD
August 11,
1994
BTL SPECIALTY RESINS
)
CORPORATION,
)
Petitioner,
PCB 94—160
V.
)
(Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by N. McFawn):
On Nay 26,
1994,
BTL Specialty Resins Corporation
(BTL)
filed a petition captioned “Petition for Review of Final
Hazardous Waste Determination.”
On June 2,
1994,
the Board
issued an order finding that petitioner failed to set forth a
proper jurisdictional basis for its appeal, and directing
petitioner to file an amended petition correcting this
deficiency.
On June 23,
1994 BTL filed an amended petition which
set forth the grounds on which BTL asserts jurisdiction is
proper.
On July 15,
1994, the Illinois Environmental Protection
Agency
(Agency)
filed a motion to dismiss, asserting that
petitioner failed to establish a proper jurisdictional basis for
its appeal.
The Board issued an order on July 21,
1994,
accepting the matter for hearing, pending resolution of the
jurisdictional issue.
On July 22,
1994, BTL filed a response to
petitioner’s motion to dismiss.
The Agency filed a reply to the
response on August
1,
1994.1
Because we find that petitioner has
failed to establish a jurisdictional basis for its appeal, we
grant respondent’s motion to dismiss.
BACKGROUND
BTL operates a chemical manufacturing plant at which, among
other things,
it uses distillation equipment to produce phenol
and acetone from cumene.
This process produces a by—product that
has been classified as K022 waste.
Section 721.132 of the
regulations describes K022 waste as:
1
Pursuant to Section 130.104(c)
of the Board’s procedural
rules,
leave of the Board is required to file a reply.
Usually,
the justification for leave is offered ma
motion filed
concurrently with a reply.
No such motion was made by the
Agency.
This time, the Board will, on its
own
motion grant the
Agency leave to file a reply.
2
Distillation bottom tars from the production of
phenols/acetone from cumene.
BTL asserts that its wastestream should not be characterized
as K022 waste.
BTL asserts that the by-product of its process is
not a tar; rather,
it is a liquid with a consistency “similar to
pancake syrup”
(Amended Petition at 7.)
BTL also asserts that
its process is different from the process described in the
listing document for K022 waste.
(Amended Petition at 9
-
12.)
Upon request from BTL, the Agency issued a letter on April
26,
1994, affirming its view that the waste generated by BTL is
K022 waste.
This confirmed the Agency position as stated in a
March 31,
1994 letter, and agreed with the position taken by the
United States Environmental Protection Agency in a memorandum
sent to BTL.
(See Amended Petition Exh. A.)
ASSERTED JURISDICTIONAL BASIS
In its amended petition, BTL relies on Section 5(d)
of the
Environmental Protection Act (Act),
415 ILCS 5/5(d)
(1992)), in
asserting that there is proper jurisdiction for the Board to hear
this petition.
This section provides:
The Board shall have authority to conduct hearings upon
complaints charging violations of this Act or of regulations
thereunder; upon petitions for variances; upon petitions for
review of the Agency’s denial of a permit in accordance with
Title X of this Act; upon petition to remove a seal under
Section
3 of this Act; upon other petitions for review of
final determinations which are made pursuant to the Act or
Board rule and which involve a subject which the Board is
authorized to regulate; and such other hearing as may be
provided by rule.
(Emphasis added.)
BTL asserts that the jurisdictional requirements are satisfied
because the Agency’s letter informing BTL that its waste is
a
K022 hazardous waste constitutes
a “final determination” which
the Board has authority to review.
ANALYSIS
In asserting that the April
24, 1994 Agency letter
constitutes a final determination, BTL states that the letter
“completely and definitively resolves the disputed issues between
the parties.”
However, the letter, by itself, has no force or
effect.
The Agency was not required by statute or regulation to
issue the letter;
it issued the letter as a public courtesy in
response to an inquiry from BTL.
The letter therefore cannot
constitute a “final determination made pursuant to the Act or a
Board rule,” pursuant to Section 5(d)
of the Act.
Thus,
petitioner has failed to demonstrate a proper jurisdictional
3
basis for its appeal
Furthermore, as the Agency points out in its motion to
dismiss, characterizing the April 26,
1994 letter as a final
determination would allow almost any responsive correspondence
from the Agency to be deemed a final determination.
(Notion to
Dismiss at 2.)
Such an interpretation would severely limit the
Agency’s ability to communicate constructively with the regulated
community.
We also note that petitioner is incorrect in asserting that
denial of jurisdiction to hear this appeal leaves petitioner
without an avenue for appeal.
(See Amended Petition at 4.)
There are several possible avenues through which petitioner could
seek relief.
For example, pursuant to 35 Ill. Adm. Code 720.122,
petitioner can seek a waste delisting for its wastestream.
There being no proper jurisdictional basis for the appeal as
presented,
it is dismissed.
IT
IS
SO
ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill. Adm. Code 101.246. “Motions for Reconsideration”.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi
that the above order was adoptedpn the
//tL• day of
________________,
1994, by a vote of
~
Control Board