ILLINOIS POLLUTION CONTROL BOARD
July 21,
1994
IN THE MATTER OF:
)
)
REVISIONS OF TREATABILITY
)
R94-l8
TESTING EXCLUSION LIMITS:
)
(Rulemaking)
Amendments to 35
Ill. Adm. Code
)
721.104(f) (3)
through
(f)(5)
)
ORDER OF THE BOARD
(by E. Dunham):
Burlington Environmental Inc.
(Burlington)
filed a petition
for rulemaking on July
1,
1994,
pursuant to Section 22.4(b)
of
the Environmental Protection Act
(Act) (415 ILCS 5/22.4(b)
(1992),
which would require the Board to engage in a general rulemaking
under Title VII of the Act.
Burlington filed
a request for an
emergency rulemaking in this matter on July
18,
1994.
The Agency
filed a response to the request for emergency rulemaking by
telefax on July 20,
1994.
Having reviewed the petition for
procedural sufficiency, the Board hereby accepts the petition.
However, we temporarily stay this matter and order Burlington to
submit appropriate comments to be received by the Board on or
before August 24,
1994,
as indicated below.
The request for
emergency rulemaking
is denied for reasons given below.
The petition essentially seeks to have the Board adopt
amendments made by U.S. EPA on February 18,
1994,
at 59 Fed.
Reg.
8365.
On that date, U.S. EPA amended the treatability study
samples exemption rule, which allows a conditional exemption from
Subtitle C regulation for a person that ships and uses samples of
the waste for treatability studies.
The action increases the
amount of hazardous waste that the person can use.
The Board recently reserved docket R94-17 for U.S. EPA RCR1~,
Subtitle C amendments that occurred in the period January
1
through June 30,
1994.
Included in that docket are the federal
amendments of February 18,
1994 that Burlington Environmental
proposes in this rulemaking.
R94-l7 appears on the Regulatory
Discussions segment of today’s agenda, and the Board presently
intends to vote on a proposal for public comment at our
regularly-scheduled meeting on August
11,
1994.
This docket is
presently due for filing with the Secretary of State no later
than January
4,
1995.
A rulemaking proceeding under Title VII would require the
Board to employ the procedures of Section 5 of the Administrative
procedure Act
(APA)
and Section 27 of the Act.
This would
require the Board to conduct at least two hearings in different
areas of the state, to submit the proposed rule for First Notice
publication in the Illinois Register, to receive public comments
for a period of 45 days, to submit the proposed rule to Second
2
Notice review by the Joint Committee on Administrative Rules for
a period of 45 days.
Using identical—in—substance procedures, the rulemaking
procedure is greatly expedited.
Section 22.4(a) provides for
quick adoption of regulations that are “identical in substance”
to federal RCRA Subtitle C regulations.
It provides that Title
VII of the Act and Section 5 of the APA do not apply.
Thus,
under Section 22.4(a), the Board submits the proposed rule for
First Notice publication in the Illinois Register, receives
public comments for a period of 45 days, and adheres to a 30-day
post—adoption U.S. EPA review period before the amendments are
filed and become effective.
Identical—in--substance proceedings
are equally open to public comment as are general rulemaking
proceedings.
Since the Board presently anticipates that the desired
amendments will become effective by identical-in—substance
procedures before January
4,
1995,
in docket R94-l7, and since
the general rulemaking procedures would unnecessarily delay their
adoption, we temporarily stay this proceeding.
The Board directs
Burlington Environmental to review the Board’s August 11,
1994
proposal in docket R94-17 and to identify any areas in which its
own R94—18 proposal requests relief not proposed
in the
identical-in-substance docket.
The Board further directs
Burlington Environmental to file comments with the Board on or
before August 24,
1994 indicating whether this petition can be
dismissed as unnecessary in light of the R94—l7 rulemaking.
The request for emergency rulemaking states that
“.
.
.a
threat to the public interest and welfare...” exists because,
“Absent this relief, Burlington may lose the contract which will
permit development of the mercury recovery technology.”
The
Illinois Administrative Procedure Act provides in pertinent part:
“Emergency” means the existence of any situation
that any agency finds reasonably constitutes a
threat to the public interest, safety,
or welfare.
If any agency finds that an emergency exists that
requires adoption of a rule upon fewer days that
is required by Section 5-40 and states
in writing
its reasons for that finding, the agency may adopt
an emergency rule without prior notice or hearing
upon filing a notice of emergency rulemaking with
the Secretary of State under Section 5-70
.
Subject to applicable constitutional or statutory
provisions,
an emergency rule become effective
immediately upon filing under Section 5-65 or at a
stated date less than 10 days thereafter.
The
agency shall take reasonable and appropriate
measures to make emergency rules known to the
persons who may be affected by them.
3
An emergency rule may be effective for a period of
not longer than 150 days, but the agency’s
authority to adopt an identical rule under Section
5-40 is not precluded.
(5 ILCS 100/1005—45
(1992),
formerly Section 5.02.)
Section 27(c)
of the Environmental Protection Act provides:
When the Board finds that a situation exists which
reasonably constitutes a threat to the public
interest, safety or welfare, the Board may adopt
regulations pursuant to and in accordance with
Section 5.02 of the Illinois Administrative
Procedure Act.
(415 ILCS 5/27(c)
(1992).)
Emergency rules are scrutinized by both the Joint Committee
on Administrative Rules and by the courts to determine whether
“there exists a situation which reasonably constitutes a threat
to the public interest, safety or welfare”.
(Citizens for a
Better Environment v. Illinois Pollution Control Board,
(1st
Dist.
1983)
152 Ill. App.3d 105,
504 N.E.
2d 166,
169
(emphasis
in original)
(vacating rules on the basis that no emergency
existed).)
In this case,
Burlington contends that the threat to
the public interest or welfare consists of an economic
disadvantage to an Illinois company resulting from failure of the
State of Illinois to immediately adopt federal rules relating to
the treatability testing exclusion limits.
This threat is
insufficient to invoke the emergency rule powers of the Board.
In its response to the request for emergency rule,
the
Agency supports the emergency rule,
but states that the Agency
did not find that the information provided by Petitioner
established an arbitrary or unreasonable hardship sufficient to
grant a provisional variance.
The Agency also stated that the
requested relief was not of the type that the Agency has granted
in the past.
In the Board’s view, the “arbitrary or unreasonable
hardship” variance requirement establishes a lesser, more easily
satisfied
burden of proof than the emergency rulemaking
requirement of
a “threat to public interest, safety or welfare”.
It appears inconsistent, therefore,
that an emergency rule should
issue where
a provisional variance could not.
The Board also notes that a variance petition is proceeding
under docket PCB 94-177 concurrently with this rulemaking
petition.
The Board denies the request for emergency rulemaking and
stays the proceedings on this rulemaking.
Burlington is ordered
to file comments on the relationship between this rulemaking and
4
the identical-in-substance rulemaking in docket R 94-17.
Comments shall be filed with the Board on or before August 24,
1994.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
do hereby~rtifythat the ab
e o der was adopted by the
Board4n~he
/~
day of
____________,
1994, by a vote
A.
Dorothy M. G~, Clerk
Illinois Poi(~/utionControl Board