BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
April
9,
1992
IN THE MATTER OF:
)
R90—25
UTILITY INDUSTRY AMENDMENTS
)
(Rulemaking)
TO THE LANDFILL REGULATIONS
)
(PARTS 810—816)
)
ORDER OF THE
BOARD
(by J.
Anderson):
On January 27,
1992,
the Board held the last in a series of
five hearings in this matter.
At that time,
the participants
were informed that there would be a 45 day comment period and
that any comments were to be filed with the Board on or before
March 12,
1992.
On March 16,
1992,
the Illinois Utility Group
(Utility Group)
filed a motion for an extension of time in which
to file its comments.
That motion was granted via a March 20,
1992 hearing officer order.
On March 25,
1992, the Illinois
Environmental Protection Agency (Agency)
filed its commenta. in
this matter.
On March 26,
1992,
the Utility Group filed a motion
to dismiss.
In its motion to dismiss, the Utility Group requests the
Board to dismiss the proceeding and states that it is withdrawing
its regulatory proposal in its entirety.
The Utility Group
states that, subsequent to the January 27,
1992 hearing in this
case,
it met to discuss the status of the proceeding and future
activities.
The Utility Group determined that a more prudent
course of action would be for those companies immediately
affected by the Board’s landfill regulations to seek regulatory
relief via individual adjusted standard petitions.
Specifically,
Commonwealth Edison will be filing an adjusted standard petition
for one of its facilities in the near future.
The Agency,
in its
comments, states that it does not object to the Utility Group’s
motion.
Before acting on the motion to dismiss, we wish to express
our concern over the supporting reasons given by the Utility
Group,
i.
e. that:
it “anticipated” that grant of category-
specific relief for the utilities’
landfills was “unlikely”;
it
“appeared” that the “Board was troubled” by the broad category
relief, preferring adjusted standards instead; and “regulation of
ash ponds, along with the alternative groundwater quality
standards,
continued to be problematic issues.”
In granting the motion to dismiss, the Board emphasizes that
its action should not be construed in any manner as implying
agreement with the Utility Group’s supporting reasons, which are
essentially a speculative assessment of Board reaction.
As the
proponents surely know from past experience before the Board,
it
is the record that must support any Board decision, and that
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2
record must be thorough enough for the Board to make an informed
decision,
as well as to withstand any appeal of that decision
either by the proponent or another person.
Close questioning to
“flesh out” the record here was particularly important,
for the
reasons summarized below.
The records in this proceeding and in the regulatory
proceeding in R88-7
(the new landfill regulations) show that the
Utility Group shifted a number of times regarding not only the
nature of the relief it was seeking, but also the category of
facilitl it was including.
The Board spent considerable
resources essentially trying throughout the past sixteen months
of this proceeding to discern what the Utility Group was
proposing and to clarify what was the then-supporting
justification.
In fact,
in our June 7,
1990 second notice opinion in R88-7,
the Board specifically noted that “the ground continues to shift
regarding the industries’
intent, timetable, and what they are
requesting,
including whether their proposal would cover existing
landfills.”
(see Second Notice opinion (June 7,
1990)
p.
5,
112
PCB 83; Second First Notice opinion (March
1,
1990)
p.
38-40,
109
PCB 38-40).
In the instant docket, the Utility Group’s first
proposal, which was filed on November 29,
1990, encompassed their
new and existing ash landfills.
On March 13,
1991, the Utility
Group filed an amended proposal which covered their new and
existing ash landfills and “utility NPDES permitted surface
impoundments” upon closure.’
Also included was a brief reference
to preserving authority to sell or re-use the wastes.
On June
10,
1991, the Utility Group filed a second amended proposal
covering their new and existing ash landfills and their new and
existing ash ponds.
The re—use provisions were somewhat
expanded.
Finally, on October 11,
1991,
the Utility Group filed
a third amended proposal covering their new and existing ash
landfills and their new, but not existing, ash ponds.2
It was
also in this last proposal that the Utility Group first
introduced the concepts of re—use and recycling.
The re—use
provisions were fully detailed in this last proposal.
We note
that because of the Administrative Procedure Act’s time limits
and the substantive changes that were made to the proposal during
1We note that the Utility Group made no specific distinction
between new and existing surface impoundments.
We also note that
certain existing surface impoundments do not have any monitoring
wells.
2Even though the Utility Group deleted existing utility ash
ponds from its proposal, today’s dismissal should not be contrued
as
a determination that existing utility ash ponds do not become
landfills upon closure.
132—164
3
the course of this proceeding, the proposal needed to go back to
a second First Notice.
We wish to take note, moreover, of a comment that was made
by the Agency.
The Agency notes that,
in light of the complexity
of the subject matter,
it will request an extension of the 30 day
review period provided by 35 Ill. Adm. Code 106.714 if and when
any adjusted standards are filed.
We suggest that the Agency’s anticipated need for an
extension beyond the 30 days may be avoided.
The regulations
anticipate that the proponent of the adjusted standard petition
first submit its proposal to the Agency for pre-filing review so
that the Agency can conduct an “up—front” review the proposal’s
merits and so that the Agency can determine whether it wishes to
act as a co—petitioner pursuant to 35 Ill. Adm. Code 106.704.
(see In the Matter of:
Petition of Keystone Steel and Wire
Company for Hazardous Waste Delistinci,
(May 23,
1991), AS 91—1).
Even if there should be disagreement,
a review of the proposal
and a 106.704 determination by the Agency at the outset will,
in
turn,
allow for an expeditious proceeding before the Board and
save.the resources of the participants and the Board.
Accordingly, the Board hereby grants the Utility Group’s
motion to dismiss and closes the docket in this matter.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
hereby certify that the above order was
adopted on the
9~
day of
(-~J~
,
1992, by a vote of
Dorothy M.~unn, Cl~rk
Illinois Pállution Control Board
132—165