ILLINOIS POLLUTION CONTROL BOARD
May 6, 1991
BIG RIVER ZINC CORP.,
)
Petitioner,
)
PCB 91-61
)
(Variance)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
INTERIM ORDER OF THE BOARD
(J. Anderson~:
This matter comes before the Board on the April
8,
1991
Petition for Variance and Motion for Stay of Big River Zinc.Corp.
The Agency filed its response to Big River Zinc’s Motion for Stay
on April 17,
1991.
Big River Zinc filed a supplement to its
petition for variance on April 23,
1991, as well as a motion for
leave to file
a reply to the Agency’s response.
Also on April
23rd, the Agency moved for leave to file a reply to Big River’s
April 23rd filing.
The Agency filed a motion for extension of
time to file its recommendation on May 1,
1991, and Big River
Zinc filed its response on May 2,
1991.
The nature of this proceeding raises four areas for Board
determination:
the motions for leave to file supplemental
briefs, the appropriateness of a stay of the effectiveness of the
relevant Board rule, the filing of the supplement to the variance
petition and Agency motion for extension of time to file its
recommendation,
and the adequacy and propriety of the Petition
for Variance.
Due to the complexity of the issues raised by the
Petition for Variance and the Motion for Stay,
the Board divides
consideration of the issues raised.
As an initial matter, the Board notes that both Big River
Zinc and the Agency cite “35 Iii.
Adm. Code 721.104(b) (7) (A) (vi)”
as the operative exclusion that Big River Zinc wishes to extend.
This became 35 Ill. Adm. Code 721.104(b) (7) (U)
in R90—lO, at 14
Ill.
Reg. 16472,
effective September 25,
1990.
The Board refers
only to Section 721.104(b) (7) (U) throughout the course of this
Order,
and the Board reads all incorrect citations as referring
to this provision.
Notions for Leave to File Supplemental Briefs
35
Ill. Adm. Code lOl.Subpart H governs motions practice
before the Board.
Section 101.241 permits a motion and a
response as a matter of right; however,
it only allows the filing
of reply and supplemental response briefs on leave of the Board.
The April
23,
1991 motions for leave to file of Big River Zinc
122—0 1
2
and the Agency essentially seek to file a reply brief and a
supplemental response brief,
respectively.
All moving and responding parties are given a single
opportunity as of right to plead their relative positions on the
relief sought from the Board.
Since we expect the parties to
brief the Board on the relevant facts and law in the initial
motion and response, the Board discourages prolonging the
pleadings with an ongoing succession of motions, responses,
replies,
supplemental replies and responses,
etc.
Nevertheless,
where particular, unusual facts or circumstances so warrant,
especially where new facts or law have become apparent subsequent
to the initial pleadings or where a responsive pleading
interposes new issues, the Board has allowed or ordered such
supplemental filings.
As described later in detail, this case involves questions
concerning the inter-relationship of the state and federal RCRA
programs which have been the subject of ongoing discussions
between the parties and employees of USEPA, Region V.
These
conversations are contained in the parties supplemental filings,
as well as discussion of the Board’s ability to grant the
requested stay and the sufficiency of Big River Zinc’s petition.
As this case raises some matters of first impression,
the
Board hereby grants both Big River Zinc’s motion for leave to
file a reply and the Agency’s motion leave to file a supplemental
response (called a “reply to a reply” by the Agency).
Big River Zinc’s Notion for Stay
In its motion for stay, Big River Zinc requests that the
Board stay the delayed effective date of July 1,
1990 for K066
wastes recited at 35 Ill. Adm. Code.721.l04(b) (7) (U), promulgated
in R90-2, effective August 22,
1990.
The July
1,
1991 effective
date actually takes the form of the termination of an exemption
for certain K066 wastes from regulation as listed wastes which
runs by it terms until June 30,
1991.
The Board added this
delayed date upon request by Big River, after adoption of the
Final Order in that matter but before the Board had filed the
rules with the Secretary of State.
The effect of that date was
to delay the time when certain of Big River’s operations come
under RCRA facility standards.
The essence of Big River’s
request is that the Board grant a further delay of the effective-
ness of the K066 listing until the Board can determine Big
River’s petition for variance on its merits.
Big River states that,
subsequent to Board adoption of R90-
2,
it learned that imposition of an July 1,
1991 effective date
would impose an arbitrary and unreasonable hardship on it.
Big
River states that a federal court has remanded the corresponding
federal regulations back to USEPA for further consideration.
Big
122—02
3
River asserts that there is a significant likelihood that the
federal appeal will result in the reversal of the corresponding
federal rule that terminated the exemption.
If this were to
happen, Big River asserts that it would have needlessly spent
several thousands of dollars on compliance.
Big River further
states that its three primary domestic competitors in sister
states would not similarly be required to comply by that date
because the three states involved have not yet adopted the now
“unexempted” K066 listing, thus placing Big River at a
competitive disadvantage.
Petition for Variance at 28-29; Motion
for Stay at 8-9.
Big River Zinc argues that the Board can grant the requested
stay consistent with federal law.
It argues that the K066
listing does not become state,
or federal.,
law until approved by
USEPA, and USEPA has not approved this amendment.
Big River
maintains that until federal approval occurs, the Board is free
to grant a stay without affecting the state’s federal RCRA
authorization.
Petition for Variance at 29; Motion for Stay at
9.
Finally, Big River Zinc argues that if
it would apply for a
variance within 20 days of the June 30,
1991 delayed compliance
date earlier granted by the Board,
it would be entitled to an
automatic stay as a matter of right, under Section 38(b)
of the
Act,
Ill. Rev.
Stat.
1989 ch. 11l~,par. 1038(b).
In so arguing,
Big River implies that the K066 rule is not even
a “RCRA” rule,
as RCRA is used and defined under Illinois law.
Automatic StaY
Section 38(b)
of the Act expressly states that an automatic
stay arises whenever a person files a petition for variance
within 20 days of the effective date of
a rule.
However, by its
terms, this provision does not apply as to any regulation that
implements the Illinois RCRA program.
Ill.
Rev.
Stat.
1989 ch.
l1l~,par. 1038(b).
The Board does not believe that this
provision applies to the listing of hazardous waste number K066
(Section 721.132) nor to the termination of the exclusion for
certain K066 wastes
(Section 721.104(b) (7) (U)).
Far more than 20 days have transpired since the effective
dates of both of the above-cited relevant provisions.
The 35
Ill. Adm. Code 721.132 K066 hazardous waste listing, which gave
rise to RCRA regulation of Big River Zinc’s units,
became
effective in Illinois on November 13,
1989.
See 13
Ill.
Reg.
18300
(Nov.
27,
1989).
Following a September 1,
1989 USEPA
action, the Board amended Section 721.104(b) (7) (U)
to include a
temporary exclusion of certain K066 wastes until June 30,
1991.
July
1,
1991 represented the latest date by which federal
regulations required the Board to modify its RCRA program to
incorporate the September 1,
1989 USEPA amendments.
See 40 CFR
122—03
4
27l.21.(e)(2)(ii)
(1989); 54 Fed. Reg. 36,633
(Sept.
1,
1989).
The Section 721.104 amendments that granted the temporary
exclusion to K066 wastes became effective August 22,
1990.
~
14 Iii. Req. 14401
(Sept.
17,
1990).
Big River Zinc,
however, argues that the termination of an
exclusion is the functional equivalent of the effective date of
the umderlying rule from which the exclusion’ existed.
Big River
Zinc cites the Citizens Utilities Co. of Illinois v
Pollution
Contrcd Board,
134 Ill. App.
3d 111,
479 N.E.2d 1213
(3d Dist.
1985)
appeal involving a site—specific rule for this proposition.
In that case,
the Board had denied
a site-specific, rule without
having made certain statutory findings as to the prospective
costs and benefits of the proposed site-specific rule.
The Board
had faulted the economic impact study submitted in that matter
and determined that the record did not allow it to make any
determ~inationas to the economic reasonableness of maintaining
the general standards for the area in question.
The Board had
denied the site-specific relief,
so it felt that it had not
adopted a “new regulation” for the purposes of Section 27(b)
of
the Act.
See Ill. Rev.
Stat.
1989 ch. 11l~,par. 1027(b).
Therefore, the Board felt that it did not need to make an
econom~icdetermination.
The court remanded the case for further
Board consideration, stating that the Board could not avoid the
‘necessary economic determinations simply because it was denying,
rather than granting, the requested site-specific relief.
479
N.E. 2d at 1216.
At
first blush, the issue of whether the Board must make
econoirtic determinations under Section 27(b)
in denying site—
specific relief is inapposite to the issue of whether the
automatic expiration of a regulatory exclusion triggers the 20—
day clock for an automatic stay under Section 38(b).
However,
Big River Zinc argues that the Citizens Utilities court held that
a denial of site—specific relief, is the “functional equivalent”
of rei’inposition of the rule of general applicability.
In fact,
Big River Zinc expands this further to assert that the courts in
analogous situations have upheld the proposition that “the
termin~ationof an exclusion is the functional equivalent of the
effective date of the general rule.”
Reply brief at 1—2.
However, careful examination of the Citizens Utilities case does
not allow the Board to go so far.
1!he Citizens Utilities court held only that the Board must
make a Section 27(b)
economic determination in denying site—
specific relief where the deficiency in the economic record is
throug~hno fault of the party seeking relief.
Nowhere in its
discussion of this issue does the court actually hold that the
denial of a site-specific rule is the functional equivalent of
reimpo~singthe genera1~rule that applies.
Rather, the closest
the co~urtcomes to such an assertion
i’s dicta:
122—04
5
The intent of
the general assembly,
in imposing the
economic impact determination requirement of Section
27(b),)
is to inject into the Board’s decision-making
equation a cost/benefit factor.
Where,
as here, the
relection of substitute regulations
is in effect the
adoption of a previously existing regulatory framework,
the same economic accountability should be brought to
bear.
.
.
.
The Board cannot avoid the statutorily
required economic determination
.
~
Citizens Utilities,
134 Ill. App.
3d at 116, 479
N.E.2d at 1217
(emphasis added).
The Citizens Utilities court sought only to effectuate the intent
of the General Assembly in all Board regulatory determinations,
including in denials of regulatory relief on their merits.
The
court did not hold that the automatic termination of an exclusion
from regulation is the functional equivalent of the reimposition
(or effective date)
of the general rule.
Further, the Board has
not denied Big River Zinc any form of regulatory relief on the
merits,
as it did in the Citizens Utilities case.
The Board
cannot accept Big River Zinc’s “functional equivalent” of the
effective date argument.
Even if for the sake of argument the Board were to assume,
by whatever means, that the effective date of these regulations
is July 1,
1991, the date upon which the temporary exclusion
ends,
Big River Zinc is not entitled to a Section 38(b)
automatic
stay.
The relevant regulations, Sections 721.104 and 721.132,
are RCRA regulations for the purposes of Section 38(b).
This is
despite Big River Zinc’s somewhat disingenuous argument that it
would be entitled to an automatic stay if it were to file a
petition for variance within 20 days of July
1,
1991.
Big River
Zinc argues that because USEPA has not yet approved these rules,
they are not state RCRA rules.
~
Reply brief at 2; Notion for
Stay at 9-10.
Big River Zinc cites the USEPA in support of this
proposition:
States are not authorized to carry out any regulations
providing coverage similar to today’s proposed sic)
rule as RCRA requirements until such regulations
(or
modifications to regulations) are submitted to
U.S.)
EPA and approved.
Reply Brief at 2
(citing 54
Fed.
Reg.
36633
(Sept.
1,
1989)
(emphasis added in brief).
This argument has major inherent flaws.
Primary are
(1)
that Illinois RCRA program regulations would be ineffective for
an extended period of time because USEPA has never approved a
Board rule intended to implement the state RCRA program within 20
days of Board adoption;
rather, USEPA approval can follow Board
122—05
6
adoption by more than two years,1 and
(2) that the plain words of
SectiGn 38(b)
do not require “USEPA-approved RCRA regulations,”
but rules or regulations adopted pursuant to Section 22.4(a) to
implen~entthe state’s RCRA program.
Further, Big River Zinc’s
argument ignores the context of federal law (versus state law)
ir
whick USEPA made its assertions.
more fully cited, the USEPA Federal Register discussion
accompanying the adoption of the termination of the exclusion
makes
it clear that Illinois,
as an authorized state, must adopt
the termination by July
1,
1991.
USEPA actually stated as
fol1o~isin this passage:
This final rule is not effective in authorized States,
because its requirements are not being imposed pursuant
to the Hazardous and Solid Waste Amendments of 1984
~(HSWA).
.
.
.
In authorized states,
the reinterpre-
ttation of the regulation of non—excluded process wastes
iwill not be applicable until the State revises its
program to adopt equivalent requirements under state
law and receives authorization for these new
requirements.
(Of course the requirements will be
applicable as a State law if the State law is effective
~rior to authorization).
States that have final authorization are required
~40 CFR 271.21(e)) to revise their programs to adopt
equivalent standards regulating non—Bevill mineral
processing wastes that exhibit hazardous character-
Istics as hazardous by July 1,
1991
.
.
.
.
Once
US)EPA
approves the revision, the State requirements
become RCRA subtitle C requirements in that State.
States are not authorized to carry out any regulations
~
The usual procedure in identical
in substance regulatory
proceedings is for the Board to withhold filing of its rules with
the Secretary of State
(and thereby adopting them in the sense of
the Aithninistrative Procedure Act,
Ill.
Rev.
Stat.
1989 ch.
127,
par. i~O01et seq.) for up to 30 days after final adoption for post-
adoption comment.
The rules become effective upon filing with the
Secretary
of
State.
See
Ill.
Rev.
Stat.
1989
ch.
127,
par.
1005.0~1(c).
The Agency
later submits
a
package containing the
rules
to USEPA for approval.
~
Ill.
Rev.
Stat.
1989
ch. 111~,
par. 104(1).
USEPA approval necessarily follows USEPA review of
that package.
The most recent USEPA approval of Board RCRA rules
occurred on June 3, 1991, which includes Board amendments effective
in
Illinois
on
November
30,
1987
and
January
29,
1988
(corresponding to USEPA amendments of 1986 and 1987).
See 56 Fed.
Reg.
13595
(Apr.
3,
1991).
The next-preceding USEPA approval of
April
30,
1990 primarily included Board rulemakings effective in
Il1inci~isin 1986.
~
55 Fed.
Reg. 7320
(March
1,
1990).
122—06
7
providing coverage similar to today’s proposed
sic
rule as RCRA requirements until such regulations or
modifications to regulations) are submitted to USEPA
and approved.
Of course, States with existing
standards may continue to administer and enforce them
as
a matter of law.
lOince authorized,
a State must revise its program to
include an eguivalent provision according to the
requirements and deadlines provided at 40 CFR
271.21(e).
54 Fed.
Reg.
36633
(Sept.
1,
1989)
(emphasis added).
Examination of the applicable federal statutes and rules
clarifies USEPA’s intent in this passage.
First,
the Board must
look at the meaning and import of USEPA authorization of a state
RCRA program.
Then, the Board must examine the status of state
hazardous waste rules at the various stages of their development.
Section 3006 of RCRA provides for federal authorization of
state programs of hazardous waste management in lieu of the USEPA
standards:
Any state which seeks to administer and enforce a
hazardous waste program pursuant to this subtitle may
develop and
.
.
.
submit to USEPA)
an application
for authorization of such program.
.
.
.
After
authorization,
s)uch
State is authorized to carry out
such program in lieu of the Federal program under this
subtitle in such State and to issue and enforce permits
for the storage, treatment,
or disposal of hazardous
waste
.
.
..
In authorizing a State program,
USEPA
may base its)
findings on the Federal program in
effect one year prior to submission of a State’s
application
.
RCRA Section 3006(b)
(42 U.S.C.
§
6926(b)).
Having federal authorization means,
first, that the state
administers its own RCRA program in lieu of USEPA administering
the federal program in the state.
Second,
it means that,
once
approved by USEPA, the regulations of an authorized state have
the same force and effect under federal law within that state as
do the federal regulations in unauthorized states——i.e., they
become federally
enforceable law.
Similarly, as a matter of
federal law, state administrative actions have the same force and
effect within an authorized state as USEPA actions have in
unauthorized states.
Third, the federal regulations do not apply
within authorized states.
12 2—07
8
This answers questions as to the status of federal RCRA
regulations in authorized ‘and unauthorized states.
It also
answers the status of state regulations as federal law once the
state is authorized and the rules approved by USEPA.
However,
it
does not answer the question as to what is the status of state
regulations prior to federal approval.
The RCRA preemption
provision provides that answer.
RCRA
clearly does not preempt any but less stringent state
regulations, and the RCRA preemption provision, together with the
state authorization provisions of Section 3006, strongly
encourages the states to acquire and maintain USEPA—authorized
programs at least as stringent as the federal rules.
The RCRA
federal preemption provision clearly states this as follows:
Upon the effective date of regulations under this
subtitle no State or political subdivision may impose
any requirements less stringent than those authorized
under this subtitle respecting the same matter as
governed by such regulations
.
.
..
Nothing in this
title shall be construed to prohibit any State or
political subdivision thereof from imposing any
requirements
.
.
which are more stringent than those
imposed by such regulations.
.
RCRA Section 3009
(42 U.S.C.
S 3009)
Thus,
federal law can preempt only those state law provisions
that are less stringent than the corresponding federal
provisions,
and the state is free to impose its own more
stringent requirements.
Therefore,
after adoption by the Board,
Illinois RCRA rules become effective as Illinois law upon filing
with the Secretary of State,
Ill.
Rev.
Stat.
1989 ch.
127, par.
1005.01(c), although they are not enforceable as federal law
until approved by USEPA.
Once USEPA approves an Illinois program
revision, the approved Illinois
RCRA
rule becomes enforceable
under federal law as federal law.
See RCRA Section 3006(b)
(42
U.S.C.
5
6926(b)).
The rule retains its prior status as
effective Illinois law.
In this scheme,
a new federal non—HSWA RCRA provision is a
nonentity as to both federal and Illinois law prior to state
action—-even after its USEPA-recited effective date.
First,
it
does not yet exist in Illinois law until adopted by the Board.
Further, it does not apply in Illinois, as long as Illinois is an
authorized state,
because the Illinois RCRA program applies in
Illinois in lieu of the federal regulations.
See RCRA Section
3006(b)
(42 U.S.C.
§ 6926(b)).
Thus,’ until the Board adopts an
identical in substance provision to correspond with the new
federal rule, that rule is not enforceable in Illinois.
However,
the existence of the new federal rule places Illinois under the
122—08
9
burden of a deadline for adoption of such an identical in
substance rule.
Other federal RCRA statutory and regulatory provisions
indicate that authorized states bear a certain burden in order to
maintain their authorized status.
There are principal conditions
to initial authorization and subsequent federal approvals of
state RCRA programs:
(1)
the state program must be equivalent to the federal
program;
(2)
the state program must be consistent with the federal
program and the programs of other states;
(3)
the state program must provide adequate enforcement of
compliance of the requirements of RCRA; and
(4)
the state program provisions relating to any specific
matter must be no less stringent than the federal
requirements;
(5)
the state must update its program within certain time-
frames in response to revisions in the federal rules;
and
(6)
the state must seek federal authorization of its
periodic updates within certain time—frames or it could lose
federal authorization for its entire program.
RCRA Sections 3006
& 3009
(42 U.S.C. §~6926
& 3009);
40 CFR 271.21.
Thus,
Illinois
is required under federal law to timely update its
RCRA program on a periodic basis with provisions no less
stringent than those adopted by USEPA in order to maintain
federal authorization.
This means that the Board must adopt its Illinois RCRA
updates prior to certain deadlines included in the federal rules.
The deadline for any single rule is generally on July 1st of each
year for the 12 month period concluded the previous June
30th.
40 CFR 271.2l(e)(2)(ii)
(1989); but see Ill. Rev.
Stat.
1989 ch.
111k, par. 1007.2(b) and 1022.4(a)
(requiring the Board to adopt
rules identical
in substance to the federal RCRA rules within one
year of USEPA promulgation; that is September 1,
1990 for a
federal promulgation occurring September
1,
1989.)
The Agency
must then submit the modifications to USEPA for approval of the
changes within
60 days of the deadline for adoption.
40 CFR
271.21(e) (4) (ii); Ill. Rev.
Stat.
1989 ch. l1l~,par.
1004(1).
If Illinois does not update its program by this deadline, USEPA
may initiate withdrawal of state program authorization.
40 CFR
27l.21(g)(2).
This makes it important that Illinois promptly
122—09
10
comply with RCRA and adopt the corresponding provision to each
new federal
RCRA
rule.
In this regulatory scheme, the meaning of the USEPA Federal
Register assertion cited by Big River Zinc becomes clear, and
that meaning does not support Big River’s argument that the 35
Ill.
Adm. Code 721.104(b) (7) (U) exclusion is not
a rule that
falls under the automatic stay exclusion of Section 38(b).
All
the USEPA assertion means is that Illinois is not allowed to
carry out the termination of the exclusion as federal
RCRA
law
until approved by USEPA.
It does not mean that Illinois cannot
enforce this provision as a matter of Illinois law; it does not
mean that Illinois need not have adopted the termination prior to
July
1,
1991; and, finally,
it does not mean that this is not a
rule that implements the Illinois RCRA program,
as intended by
Section 38(b)
of the Act.
As to’the identity of what are the RCRA regulations under
Illinois law for the purposes of Section 38(b), the Board can
only conclude that this applies to the rules contained in 35 Ill.
Adm. Code 702,
703,
720,
721,
722,
723,
724,
725, 726, and 728,
to the extent they are identical in substance to USEPA RCRA
regulations.
The Act does not directly define “RCRA regulation,”
but the Board has defined this phrase in its RCRA rules using the
above approach.
The Board rules define RCRA rules as follows:
Board rules which are intended to be identical in
substance to those USEPA rules adopted pursuant to the
Resource Conservation and Recovery Act
(42 USC 6901 et
seq.).
This includes Parts 720,
721,
722,
723, and
725.
35
Ill. Adm. Code 700.260 (1987).
They also define them more specifically and fully by the relevant
Part numbers:
35
Ill. Adm. Code 702,
703,
720,
721,
722, 723,
724,
725, 726,
and 728.
35 Ill.
Adm. Code 102.101
(as amended at
14 Ill. Reg. 9210
(June
8,
1990), effective May 24,
1990)
(procedural rule);
See 35 Ill. Adm. Code 104.120(a).
Thus, the’Board has clearly understood and enunciated what is a
“RCRA regulation,” and one of the Board’s segments of the “state
RCRA program”
is the body of those rules.
However, the statutory
authority under which the Board has ‘adopted its RCRA rules is
more persuasive that the body of rules falling within the Board’s
definition of “RCRA regulation” are those rules that “implement”
the “state RCRA program” for the purposes of Section 38(b).
122—10
11
The Board adopts its RCRA rules pursuant to Section 22.4(a)
of the Act:
T)he
Board shall adopt regulations which are identical
in substance to federal regulations or amendments
thereto promulgated by the Administrator of the United
States Environmental Protection Agency to implement
Sections 3001,
3002,
3003,
3004,
and 3005, of the
Resource Conservation and Recovery Act of 1976
(P.L.
94—580),
as amended.
Ill. Rev.
Stat. 1989 ch. l11~,par. 1022.4(a).
To the extent the Board adopts regulations pursuant to this
statutory provision, which essentially authorizes the Board to do
nothing more than implement Subtitle C of RCRA,
those regulations
implement the state RCRA program within the meaning of Section
38(b).
If the Board adopts hazardous waste regulations that go
beyond implementing the state RCRA program,
it must look to other
statutory authority in Title VII of the Act, which is referenced
in Section 22.4(b).
Sections 721.104 and 721.132 are both regulations that the
Board adopted pursuant to Section 22.4(a)
of the Act.
See 35
Ill.
Adiu.
Code 721 Authority Note;
13
Ill.
Reg. 18300
(Nov.
27,
1989)
(statutory authority citation);
14
Ill. Reg.
14401
(Sept.
17,
1990)
(statutory authority citation).
Thus,
both sections
are “RCRA regulations,” for the purposes of Big River Zinc’s
argument, and they are both each a “rule or regulation adopted by
the Board which implements,
in whole or in part,
a State RCRA
program which)
sh~
L not be stayed” for the purposes of
Section 38(b)
of the Act.
See Ill.
Rev.
Stat.
1989 ch. 111~,
par.
1038(b).
For these reasons, Big ‘River Zinc cannot obtain and could
never have obtained an automatic stay of the effect of Sections
721.104 or 721.132 pursuant to Section 38(b)
of the Act.
The
Board must now consider whether it can grant Big River Zinc a
discretionary stay.
Discretionary Stay
In order for the Board to grant a discretionary stay,
it
must have some authority for doing so.
No such authority is
apparent to the Board,
so the Board must deny a stay.
~
LaClede Steel Co.
V. IEPA,
PCB 89-202
(Dec.
20,
1989); ~
Energy,
Inc.
v.
IEPA, PCB 90-219
(Dec.
4,
1990).
Four points support this conclusion.
Initially,
as has been
discussed, Section 38(b)
does not mandate a stay.
Second, the
Board cannot find authority for such a stay in federal
RCRA,
which seems to go further to prohibit any delay in the
122—11
12
termination of the 1066
exemption.
Third, neither Section 38(b)
nor any other provision of the Act or the Illinois Administrative
Procedure Act,
Ill.
Rev. Stat.
1989 ch.
127, par. 1001 et seq.
authorizes a Board stay of the effectiveness of a rule.
(That
is, to either stay the effectiveness of either the Section
721.104(b) (7) (U) termination date or the Section 721.132 1066
hazardous waste listing.)
Finally, the Illinois APA would seem
to preclude a stay of a filed and effective rule.
Section 3009 of RCRA provides that a state may delay
adopting a RCRA provision where a federal court has delayed or
enjoined its effectiveness:
If
application of a regulation with respect to any
matter under this subtitle is postponed or enjoined by
the action of any court, no State or political
subdivision shall be prohibited from acting with
respect to the same aspect of such matter until such
time as such regulation takes effect.
.
42 U.S.C.
§ 6929.
Thus,
if a federal court were to postpone or enjoin the
applicable rule, the Board could engage in some form of action,
not necessarily by issuing an order of stay, that would have the
effect of delaying the termination of the exclusion.
However,
nowhere do the briefs or any court opinion indicate that any
court has taken any of the above—noted actions.
In its briefs, Big River Zinc asserts only that the court in
American Mining Congress v.
EPA,
907 F.2d 1179
(D.D.C.
1990),
remanded the matter of
1066
wastes to USEPA; that the American
Mining Congress is presently pursuing another appeal of the USEPA
withdrawal of the K066 exemption,’ in Solite Corp.
V.
EPA,
No. 89-
1629
(D.D.C); and that Big River Zinc anticipates
“a significant
possibility” that the court will strike down the withdrawal.
Examination of the American Mining Congress opinion as to
1066
wastes reveals that the court remanded the proceeding to USEPA
“for a fuller explanation of its decision to list K066” because
“there is no adequate explanation in the 1988 rule for the
listing of 1066.”
American Mining Congress v.
EPA, 907 F.2d at
1188-89.
Nothing in the court’s opinion purports to affect the
effectiveness of the 1066
listing.
In fact,
the court showed
great deference for USEPA’s judgement:-
In reaching this decision we do not attempt to
substitute our judgment for the expert judgment of
USEPA).
We do not conclude that
USEPA)
is incapable
of adducing sufficient evidence reasonably to support
its decision to list the materials at issue.
.
.
122—12
13
USEPA
did not exceed its statutory authority in
treating the wastes as
.
.
.
subject to RCRA Subtitle C
regulation.
Nor did it run afoul of the APA notice and
comment requirement.
However,
USEPA
failed in the
1988 Rule to articulate a rational connection between
the data on which it purportedly relied and its
decision to reject the petitioners’ admittedly
significant challenges.
.
American Mining Congress v.
EPA,
907 F.2d at 1191
&
1192.
The court’s decision does not appear in any way to undermine the
Federal Register discussion and the relevant federal regulations
cited above that appear to require that the Board have an
effective termination on July
1,
1991 if the Illinois RCRA
program is to comply with federal law.
In examining the Act and the APA for authority for a stay,
the Board found nothing relevant.
The Illinois Administrative
Procedure Act provides for an automatic stay of sorts as to
licensing
(i.e., permitting), but that provision only maintains
the effectiveness of a prior permit until disposition of a timely
subsequent application for renewal.
See Ill.
Rev.
Stat.
1989 ch.
127,
par. 1016(b).
The Board has certain inherent authority to
grant a stay under certain circumstances, but none of those
circumstances apply here.
As discussed earlier, the Board can
delay the filing of rules
it has formally adopted by vote because
those do not become effective as Illinois law until filed with
the Secretary of State.
See Ill. Rev.
Stat.
1989 ch.
127,
par.
1005.01.
In contested cases,
the Board may stay or alter the
effectiveness of its own orders.
The Board can grant a type of
stay of the effectiveness of some RCRA rules
(for example
hazardous waste storage rules under certain circumstances
if one
interprets a,provisional variance as a type of stay), but such a
grant occurs as provided by the RCRA rules themselves.
See 35
Ill. Adm. Code 722.134(b).
No provision of RCRA authorizes any
other form of immediate,
summary delay
in the effect of a rule
without full consideration of the merits of the petition for
relief after a public hearing, such as occurs in a rulemaking,
a
variance, or an adjusted standard proceeding.
The general tenor of the Illinois APA and the Environmental
Protection Act would seem to preclude a summary stay of an
adopted rule.
In order to delay the termination date of the
exclusion,
the Board would have to issue “a statement of general
applicability that implements,
applies,
interprets,
or prescribes
law or policy” as meant under the Illinois APA.
Such is defined
as a “rule” under that statute.
Ill. Rev.
Stat.
1989 ch.
127,
par.
103.09.
For such an action, the Illinois APA would require
a formal rulemaking and filing with the Secretary of State.
See
Ill. Rev. Stat.
1989 ch. 1l1~,par.
1007.2,
1022.4
& 1027
122—13
14
(Environmental Protection Act);
Ill.
Rev.
Stat.
1989 ch.
127,
par.
1005
& 1005.01
(Illinois APA).
Otherwise,
the Board would
have to engage in a full variance or adjusted standard
proceeding.
In conclusion,
state law and federal law operate as barriers
to the Board granting a stay of the termination of the Section
721.104(b) (7) (U) exclusion in the way sought by Big River Zinc.
Further, both the Act and federal RCRA regulations require that
the Board retain the termination date.
Sections 7.2(b)
and
22.4(a) mandated that the Board adopt rules identical in
substance to the federal rules within one year of the federal
promulgation.
See Ill. Rev. Stat.
1989 ch.
111k, par.
1007.2(b)
and 1022.4(a).
40 CFR 271.21(e) requires that the Board adopt
the termination date of the exclusion by July 1, 1991.
See 42
U.S.C. SS 6926
& 6929; 40 CFR 271.21(e).
To remain identical in
substance under the state mandate, the termination date must
comply with this federal law.
In the absence of a reversal, a
federal stay, an injunction,
or some other federal court action,
or without some USEPA action that has the effect of delaying the
effectiveness of the expiration of the temporary exclusion,
the
Board has no authority under the Act or under federal RCRA to
grant a discretionary stay of the federally and State mandated
RCRA-iinplementing expiration of 35 Ill. Adm. Code 721.104(b) (7)
(U).
For the foregoing reasons, the Board hereby denies Big River
Zinc’s motion for stay.
However, the Board will open an
alternative route for relief to the extent both state and federal
law allow.
Alternative Form of Relief
The Board is not unmindful of Big River Zinc’s arguments
that it could be forced to spend considerable sums on compliance
with the RCRA T/S/D facility standards,
only to have USEPA or a
federal court later withdraw or otherwise terminate the
effectiveness of those rules.
In its petition for variance, Big
River Zinc asserts that it will be forced to spend
$
2,000,000
per year for increased disposal costs,
$
1,900,000 for capital
improvements, and
$
120,000 per day in the event of any
production shutdown, in order to comply with the applicable RCRA
requirements within nine months of when they begin planning
improvements.
Big River also asserts that a nine—month variance
would save it a total of about
$
463,000.
Petition for Variance
at 16—22.
Again, as earlier stated, USEPA promulgated the 1066
hazardous waste listing on September
13,
1988 with an exclusion
for certain 1066
wastes,
53
Fed. Reg.
35420
(Sept.
13,
1988), and
it terminated that exclusion on September
1,
1989.
54
Fed. Reg.
36641
(Sept.
1, 1989).
The Board adopted the 1066
listing and
122—14
15
exclusion on September
13, 1989
(R89—1),
13
Ill. Reg.
18300
(Nov.
27,
1989)
(effective Nov.
13,
1989),
lifted the exclusion on July
3,
1990, then reconsidered and placed a future termination date
on the exclusion on August 9,
1990.
14
Ill. Reg.
14401
(Sept.
17,
1990)
(effective Sept.
17,
1990
(R90—2)).
During this time,
the United States Court of Appeals for the District of Columbia
Circuit remanded the K066 listing to USEPA on July 10,
1990,
without staying either the listing or the termination of the
exclusion.
See American Mining Congress v.
EPA,
907 F.2d 1179
(D.C.
Cir.
1990).
Big River Zinc states that it has been negotiating the
listing with USEPA during this time.
Motion for Stay at 5.
Although Big River Zinc does not sufficiently explain its need to
wait until only 90 days before the termination date to file for
immediate,
unusual emergency relief, Big River Zinc asserts that
it spent considerable sums of money to comply with the listing
and termination by July
1,
1990,
only to find that on July 10,
1990 the termination date shifted until July
1,
1991.
See Motion
for Stay at
5.
It further asserts that,
if necessary,
it is
ready to begin expenditures in May,
1991 in order to comply with
the July,
1991 deadline.
The Board notes that the Agency’s filings do not challenge
Big River’s assertions that it has made good faith efforts to
achieve compliance in a difficult situation,
and do not challenge
the specifics of its cost calculations.
The Agency also does not
challenge Big River Zinc’s assertion that it alone of its three
main competitors will be subject to the expenses flowing from the
K066 waste listing, since Illinois is the only state which has
adopted regulations equivalent to the challenged USEPA rule.
In
essence, Big River Zinc has asked the Board to maintain the
status quo during the period in which the Board
is processing its
variance request.
The Board believes that Big River has
presented sufficient justification for a “stay” of the rule
pending resolution of its variance petition.
One possible form of temporary emergency relief
is available
upon sufficient justification.
That form of temporary relief is
an emergency rulemaking.
Section 5.02 of the Administrative Procedure Act defines an
“emergency”
as “the existence of any situation which the agency
finds reasonably constitutes a threat’to the public interest,
safety or welfare.”
Ill. Rev. Stat.
1989 ch. 127,
par. 1005.02.
The same language is repeated in Section 27(c) of the Act.
Under
this provision,
if the Board were to find that an emergency
exists that required a summary rulemaking,
and if the Board could
assemble “a statement of the specific reasons” for the emergency,
the Board could adopt a rule which is immediately effective upon
filing with the Secretary of State.
122—15
16
Through an emergency rule, the Board could possibly alter
the effect’ of the July 1,
1991 termination date,
but the maximum
period of effectiveness for an emergency rule
is 150 days,
and
the maximum delay in the effective date of an emergency rule is
10 days after filing.
Therefore,
it may be desireable or
necessary to orchestrate the timing of such a rule to some
extrinsic events as yet unknown to the Board.
An additional factor in granting any form of relief from the
July 1, 1991 termination date is the timing imposed on the Board
by RCRA and USEPA rules.
As discussed above, July 1,
1991
represents the last date upon which the termination of the 1066
exclusion could become operational under Section 3006 of RCRA,
42
U.S.C.
§
6926, and 40 CFR 271.21(e),
if the Board
is to maintain
the consistency of the state’s RCRA program with the provisions
for state authorization.
The Board will not knowingly leopardize
the federal authorization of the Illinois RCRA program to effect
any form of relief.
The Board can only delay the effectiveness
of the termination until such delay renders the Illinois RCRA
program “not equivalent to the Federal program,” within the
meaning of Section 3006(b) of RCRA,
42 U.S.C.
S
6926(b), or it
renders the Board RCRA rules “less stringent” than the USEPA
rules, as this phrase is used in Section 3009,
42 U.S.C.
S 6929
and Section 7.2 of the Act. Ill.
Rev.
Stat.
1989 par.
1007.2.
Therefore,
in the interest of giving Big River Zinc some
relief, the Board will by separate Interim Order in R91-11
suggest a draft emergency rule.
Section 721.104
Exclusions
b)
Solid wastes which are not hazardous wastes.
The following solid wastes are not hazardous
wastes:
7)
Solid waste from the extraction,
beneficiation and processing of ores and
minerals (including coal), including
phosphate rock and overburden from the
mining of uranium ore.
For purposes of
this subsection, beneficiation of ores
and minerals is restricted to the
following activities:
crushing,
grinding, washing, dissolution,
crystallization, filtration,
sorting,
sizing, drying, sintering, pelletizing,
briquetting, calcining to remove water
or carbon dioxide, roasting, autoclaving
122—16
17
or chlorination in preparation for
leaching (except where the roasting or
autoclaving or chlorination)/leaching
sequence produces a final or
intermediate product that does not
undergo further beneficiation or
processing), gravity concentration,
magnetic separation, electrostatic
separation,
floatation,
ion exchange,
solvent
,
electrowinning,
precipitation, amalgamation, and heap,
dump, vat tank and in situ leaching.
For the purposes of this subsection,
solid waste from the processing of ores
and minerals will include only the
following wastes:
U)
Until June 30, l99lthe first date
upon which this exclusion renders
the Board RCRA program “not
equivalent to the Federal program,”
within the meaning of Section
3006(b)
of the Resource
Conservation and Recovery Act,
42
U.S.C. ~ 6926(b),
or it renders the
Board RCRA rules “less stringent”
than the USEPA rules,
as this
phrase is used in Section 3009.
42
U.S.C.
ç 6929 and Section 7.2 of
the Act, I1l.Rev.
Stat.
1989 ch.
111 1/2 par.
1007.2, process
wastewater,
acid plant blowdown and
wastewater treatment plant solids
from primary zinc smelting and
refining, except for wastewater
treatment plant solids which are
hazardous by characteristic and
which are not processed.
As noted in the Board’s separate Order today in R91—1l, the
Board will delay consideration of this draft emergency rule until
May 14,
1991,
to allow interested parties to comment on this
matter.
The Board
is particularly interested in any comment by
USEPA.
In the event that filing of this rule would in any way
jeopardize the State’s RCRA program authorization,
or the rule
would fail to give the petitioner effective relief,
the Board
would intend not to pursue action on the emergency rule.
122—17
18
Supplement to Petition for Variance
and Extension of Time to File Recommendation
The April 23,
1991 Big River Zinc supplement to its petition
for variance reiterates Big River Zinc’s assertion that the
petition for variance is not a petition for a RCRA variance.
It
states that Big River Zinc is waiving a hearing, and it includes
an affadavit pursuant to 35
Ill. Adm. Code 104.124.
In the
supplement, Big River Zinc notes that it did not comply with ~5
Ill. Adm. Code 104.126, applicable to RCRA variance petitions,
because it does not believe that the petition is for a RCRA
variance.
The Board holds that this supplement does not constitute an
amended petition for the purposes of
35 Ill. Adm. Code 101.109,
101.144,
104.160,
104.180,
104.181,
104.200, and 104.220 and Ill.
Rev. Stat.
1989 ch. 111~,par. 1038(c), although the Board has
not yet found the original petition sufficient for the purposes
of 35 Ill. Adm. Code 104.125 and 35
Ill. Adm. Code 104 generally
or accepted this matter for hearing pursuant to 35 Ill. Adm. Code
104.160(b) (3)
or
(b) (4)
As to the Nay 1,
1991 Agency motion for extension of time to
file its recommendation,
and the May 2, 1991 Big River Zinc
response, the Agency basically asserts that it cannot file its
recommendation until the Board has determined whether the
petition is one for a RCRA variance.
The Agency requests that
the recommendation be due 30 days after the Board has made such a
determination.
Big River Zinc responds with the assertion that time is of
the essence in this matter and requests an expedited decision.
Big River raises the possibility of an amended petition in the
future based on extrinsic events.’
It states that it would have
no objection to the Board requiring the Agency recommendation 30
days after and amended petition if the Board determines that this
is a proceeding for a RCRA variance.
Because the Board determines that the petition is one for a
RCRA variance, the Board hereby grants the Agency thirty days
from the filing of an amended petition by Big River Zinc to file
its recommendation pursuant to 35 Ill. Adm. Code 104.180(a).
Sufficiency of the Petition for Variance
As the foregoing discussions have made clear,
the Board
adopted Sections 721.104 and 721.132 pursuant to Section 22.4(a)
of the Act,
so these are
RCRA
regulations for the purposes of
Section 38(b)
of the Act.
Big River Zinc’s arguments notwith
standing, the Board has found that these rules are also RCRA
rules, as defined at 35
Ill.
Adm. Code 102.101.
Even without
such a determination, the Board must conclude that the Big River
122—18
19
Zinc’s Petition for Variance is a “petition for a RCRA variance,”
as such is defined in the Board’s procedural rules:
It requests a variance from 35 Ill.
Adm. Code 703, 720,
721,
722,
723,
724 or 725
.
35 Ill. Adm. Code 104.120(a) (1).
The Board’s procedural rules include specific provisions for
a petition for RCRA variance.
See 35 Ill. Adm. Code 104.104(b),
104.126,
104.142,
104.182, 104.183
& 104.221.
After examination
of Big River Zinc’s petition in light of the relevant rules,
including the April
23, 1991 supplement, the Board concludes that
the petition is generally deficient.
The Board will not spell out the deficiencies, but instead
refers Big River Zinc to the above-cited Part 104 rules, and to
the Agency’s April
17 filing.
If an amended petition satisfying
the requirements of the RCRA variance rules is not received
within 45 days of the date of this Order, this petition will be
subject to dismissal.
The filing of an amended petition will
restart the Board’s timeclock for decision in this matter,
although the Board will expedite processing of this petition
consistent with its resources and workload.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, do
reby certify that
h
above Interim Order was adopted
on the
~‘~Y
day of _________________________,
1990,
by a
vote of
_________
~
L~
/(~~
Dorothy N. Gu~, Clerk
Illinois PolAftion
Control Board
122—19
