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

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