ILLINOIS POLLUTION CONTROL BOARD
March 26,
1992
IN THE MATTER OF:
)
)
THE PETITION OF CABOT CORP. FOR)
AS 91-10
AN ADJUSTED STANDARD FROM THE
)
(Adjusted Standard)
REQUIREMENTS OF 35
Ill.
Adm.
)
Code 725.293
)
INTERIM ORDER OF THE BOARD
(by
3.
Anderson):
The Cabot Corp.
(Cabot)
filed a petition for an adjusted
standard from the requirements of 35 Ill.
Adin. Code 725.293 on
December 27,
1991.
Cabot filed its petition pursuant to Ill.
Rev.
Stat.
1991 ch.
111½, par.
1028.1,
35 Ill.
Adin.
Code
725.293(g)
and 35 Iii. Adm. Code 106.Subpart D.
Cabot seeks this
adjusted standard from certain secondary containment requirements
for tanks containing hazardous wastes.
35 Ill. Adm. Code
725.293(h) (3) requires that a petitioner submit its completed
alternative design and operating practices demonstration within
180 days of filing its petition for an adjusted standard.
The Board will delay the question of authorizing hearing
until Cabot has either filed the required demonstration or 180
days have elapsed since the filing of the petition.’
180 days
after December 27, 1991~isJune 24,
1992.
Ill.
Rev.
Stat.
1989 ch. 111½,
par. 1028.1(d) (1) requires a
petitioner for an adjusted standard to publish a newspaper notice
of the filing of its petition within 14 days of the filing with
the Board.
The record bears no indication that Cabot has done
this.
A failure to publish a notice required by statute renders a
petition as filed defective and, thus,
subject to dismissal for
lack of Board jurisdiction.
However, due to the 180-day time
lag, unusual for adjusted standard proceedings and unique to this
type of petition, the Board construes the Ill. Rev.
Stat.
1989
ch.
111½, par.
1028.1(d) (1)
14-day newspaper publication
requirement as running from the date of filing of the alternative
design and operating demonstration.
Essentially, the filing of
35 Ill. Adra. Code 106.415(a) requires that the Board conduct
a
public
hearing on an adjusted standard petition.
The Board
adopted this provision in R86—46,
at 11 Ill. Reg.
13457
(Aug.
14,
1987)
(effective August
4,
1987).
In P.A.
85—1048,
1988
Ill.
Legis.
Serv.
(West)
344,
356
(July
14,
1988)
(effective
Jan.
1,
1989),
the
General
Assembly
amended
Section
28.1(d)
of
the
Environmental Protection Act,
Ill.
Rev.
Stat. 1989 ch.
111½, par.
1028.1(d),
to
eliminate
the
former
mandatory
public
hearing
requirement.
It provides instead that the Board or another person
may request a public hearing after public notice.
131—559
2
the demonstration completes the filing of the petition.
Only
after the filing of the alternative design and operating
demonstration will the petition become ripe for review of the
full scope of and underlying justification for the relief sought
by the petitioner.
The Board received the “Agency Response” on March 13,
1992.
•The Agency filed a motion to file instanter together with this
document.
35
Ill. Adm. Code 106.414(a) provides that the Agency
must file its response within 21 days after the filing of the
petition’.
In this instance, this would ~meanthat an Agency
response would have been due on or before January 18,
1992, 55
days before the Agency’s actual filing.
See 35 Ill. Adm. Code
101.109.
In support of its motion, the Agency states that it
received a copy of the petition on January
2,
1992, that the
press of business prevented earlier completion of the response,
that no prejudice to Cabot will result from the delay,
and that
the Board will benefit from the response.
Cabot has not
responded to the motion.
Initially,
for reasons outlined more fully below, the Board
holds that the filing of the completed alternative design and
operating practices demonstration triggers the 21 day filing
requirement for an Agency response.
Therefore,
we construe the
March 13,
1992 filing as Agency preliminary comments.
As such,
the Board finds those comments very useful to the disposition of
this matter.
For reasons discussed at length below,
the timely
filing of such preliminary comments citing deficiencies in the
petition is absolutely necessary.
While granting the Agency’s motion to file instanter, the
Board emphasizes our concern about the 55 day delay in filing
these comments in an adjusted standard proceeding.
~
In re
Petition of Keystone Steel and Wire Co. for Hazardous Waste
Delisting,
No. AS 91-1,
(Feb.
6, 1992).
These concerns are
magnified where the Agency has raised issues that go to the heart
of the sufficiency of the petition, and where the Agency thereby
postpones its substantive review of the petition.
We do
recognize that the use of the adjusted standard procedure is
relatively new in matters related to hazardous waste regulations
in general, and in particular to secondary containment
requirements for tanks, which uniquely include the 180 day post-
filing provision.
In this case,
fortunately, the 180 day delayed
filing provision provides a potential opportunity to remedy the
situation.
Because we have construed Cabot’s filing of the
required demonstration as the trigger for notice and hearing
requests, we also construe the 21 day time requirement for Agency
response
(absent a co-petition) as running from the date of that
same filing.
In so holding, we emphasize the need for the
parties to get this adjusted standard proceeding back “on track”.
As we stated in Keystone Steel and Wire Co., No. AS 91-1:
13 1—560
3
It is intended that the entity seeking the
adjusted standard and the Agency assemble and review
the informational justification before a petition is
filed before the Board.
.
The essence of the adjusted standard procedure is
to develop the information, the issues, and the
response at the front end of the process.
We advise that, where a perceived deficiency
exists that threatens to frustrate a full Agency
response, either the Agency or the petitioner should
bring the matter to the Board at the outset.
Keystone Steel and Wire Co., No. AS 91—1, at 9—10.
Where the Agency perceives deficiencies in an adjusted
standard petition,
it is imperative that the Agency timely
disclose those deficiencies.
Where,
as here and in the Keystone
Steel and Wire proceeding,
the Agency comes in late and does not
address major portions of the petition because of asserted
informational deficiencies, the entire adjusted standard process
is threatened.
The Board could face a situation where we”do
not have the benefit of the Agency’s input on criteria whose
review is required under the state’s federally derived
.
provisions.”
Keystone Steel and Wire Co.
at 10.
This could face
us with an untenable situation where such deficiencies still
exist at the end of the process.
As noted,
the March 13,
1992 Agency filing cites several
deficiencies in the Cabot petition, apart from the pending
alternative design and operating practices demonstration.
Most
of these are alleged informational deficiencies.
For example,
paragraphs 16,
17,
20,
22, and 24 indicate that Cabot has not
sufficiently described its tank system to permit adequate review.
Paragraph 20 indicates that further information is necessary as
to the character of the hazardous wastes involved.
The
conclusion cites several items of information required by 35 Ill.
Adm. Code 725.293(g) that the demonstration outline and schedule
set forth by Cabot might appear to omit.
Finally, Paragraph 26
outlines three informational items normally part of a Part B
permit application that the Agency would find “useful and
helpful”.
Other portions of the Agency filing cite numerous disputed
factual and legal conclusions.
Paragraph 13 disputes Cabot’s
assertion that the Tuscola plant has several tank systems.
The
Agency cites to the definitions of “ancillary equipment”,
“tank”,
and “tank system” at 35 Ill. Adm. Code 720.110 and asserts the
existence of only two tanks in Cabot’s tank system.
The Agency
maintains that there are only two tank systems at the Tuscola
plant.
Paragraphs 18 and 19 of the response dispute a Cabot
13 1—561
4
description of two equipment items as “above ground trenches”.
The Board’s determination will depend on the record and the
Cabot petition, as completed by the filing of the alternative
design and operating demonstration and the Agency’s substantive
response.
Although we reserve judgment on the various potential
informational deficiencies and issues, the Board highlights the
unique posture of this matter.
Inijially,
it is always most beneficial that the petitioner
and the Agency resolve as many issues between themselves as
possible, preferably before filing.
See Keystone Steel and Wire
Q.Q~, No. AS 91—1,
at
9.
This either eliminates issues or
circumscribes the scope of the issues the Board must confront,
thereby reducing the case to the real issues between the parties
and allowing timely action by the Board.
Second, the RCRA regulations addressed here contain a date—
certain deadline on filing the petition and a later deadline for
filing the completed alternative design and operation
demonstration.
This means that Cabot has this single opportunity
to obtain relief of the type and to the extent it now seeks.
It
is particularly important here for the Board to resolve any
disputes regarding informational deficiencies prior to the “180
day” completion of the petition.
Finally, as Cabot points out in its March 24,
1992 motion
for extension of time, delays
in this proceeding foreshorten its
time frame for compliance with the RCRA secondary. containment
requirements.
Cabot must comply with these requirements if the
Board denies an adjusted standard.
For the foregoing reasons,
Cabot might ultimately prove well
served,
as would any adjusted standard petitioner, to pay close
heed to the substance of the Agency’s March 13,
1992 preliminary
comments.
This is especially true of a proceeding such as this
one, where an adverse determination could leave a party unable to
refile to seek alternative relief, as would be the situation in a
normal adjusted standard proceeding.
The March 13,
1992 Agency preliminary comments also request
that the Board grant additional time after the filing of the
alternative design and operation demonstration to allow the
Agency to review the demonstration and submit “further
commentary.”
The Agency suggests that 90 days is sufficient
additional time.
The Board construes this as a motion for an
extension of time to file.
In light of the fact that~the Board interprets the filing of
the completed alternative design and operating practices
demonstration as triggering the deadline for filing the Agency
response, this renders the Agency response as due 21 days after
13
1—562
5
Cabot files the demonstration.
The Agency-requested 90 days is
an unusually long time to file this document, and the Agency has
not submitted justification for such an extended period of time.
The Cabot March 24,
1992 motion for extension of time suggests
that no more than 30 days would be necessary.
Cabot further
points out that delays in this proceeding would diminish its
ability to timely comply with the RCRA regulations if the Board
denies the petition.
We
yiii1 adopt the time delay agreed to by Cabot.
The Board
hereby grants the Agency until 30 days after the filing of the
completed demonstration (more than a week longer than the usual
21 day time allowed by 35
Ill. Adm. Code 106.414(a))
to file its
response.
If the Agency can later justify an additional
extension of time,
the Board will entertain an appropriate
motion.
As a part of its March 23,
1992 filing, Cabot states that it
is presently entering into discussions with the Agency to address
the Agency’s concerns cited in the March 13,
1992 filing.
This
is highly desirable.
However, the Board stresses that this
matter has two deadlines for Cabot.
First, Cabot must file its
completed alternative design and operating practices
demonstration on or before June 24,
1992
(180 days after filing
the petition).
The unique posture of this type of proceeding may
not permit the filing of subsequent amended demonstrations
because this deadline
is federally—derived.
Second, as to at
least some of its equipment,
Cabot must comply with the general
RCRA
regulations on or before January,
1994
if the Board denies
relief on the petition.
This means that the Board must be in a position to resolve
any disputes as to the sufficiency of the petition and the
proposed alternative design and operating demonstration enough
ahead of time to allow Cabot to cure those deficiencies.
It also
means that Agency assertions that it does not have enough
information to address the substantive aspects of the completed
demonstration,
as it did in Keystone Steel and Wire,
is simply
not acceptable in the context of this proceeding.
For these reasons, the Board hereby directs Cabot to file a
response to this Order no later than April 10, 1992.
That report
shall set forth Cabot’s present position and supporting arguments
as to each fact and legal conclusion disputed by the Agency in
its March 13,
1992 preliminary comments.
That response shall
further set forth exactly what Cabot will, do to cure each
informational deficiency cited by the Agency as a part of the
completed demonstration, or it shailset forth exactly why Cabot
believes that no such deficiency exists.
That response shall
roughly set forth the then—current status of any discussions
between Cabot and the Agency.
The Agency shall file any reply to
the Cabot responses no later than April 17,
1992.
This will
131—563
6
enable the Board to determine whether further action is necessary
to assure that this matter develops
in a timely manner.
This
tight time-frame is regrettable, but it is necessary because of
the delay incurred thus far.
In its March 24,
1992 filing, Cabot requests an extension of
time
to
21
days
(from
the
regulatory
14
days)
to
respond
to
the
Agency
response.
The
Agency
has
not
yet
had
an
opportunity
to
respond to this motion, but the Board will grant the additional
7
days.
In summary,
a failure to file the alternative design and
operating practices demonstration required by 35 Ill. Adm. Code
725.293(h) (3) on or before June 24,
1992, or a failure to file
the proof of newspaper publication within 14 days after that
filing, as required by Ill. Rev.
Stat.
1989 ch.
111½, par.
1028.1(d) (1), will render the petition subject to dismissal.
The
Board hereby grants the Agency’s motion to file its preliminary
comments instanter.
The Board hereby grants the Agency 30 days
after the filing of the alternative design and operating
practices demonstration to file its response.
Cabot shall file
its reply to the Agency response no later than 21 days after the
filing of the response.
On our own motion, the Board hereby
directs Cabot to file a response to this Order on or before April
10,
1992 that addresses’the Agency preliminary comments and
reports the status of any discussions with the Agency relating to
the informational deficiencies cited by the Agency.
The Agency
must file any reply to the Cabot r778esponse on or before April
17,
1992.
We will defer further action in this matter until
after we receive these filings.
IT IS SO ORDERED.
R.C. Flemal concurred.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
do hereby certify that the above Order was adopted on the
~
day of
~‘)-i
a—t~..I_/,
1992, by a vote of
7—~
~
2~.
Dorothy M. ç4~in, Clerk
Illinois Pcv~4utionControl Board
13 1—5 64