ILLINOIS POLLUTION CONTROL BOARD
August 26,
1991
IN THE MATTER OF:
)
)
CENSUS OF SOLID WASTE MANAGEMENT
)
R88-8
FACILITIES EXEMPT FROM THE PERMIT
)
(Rulemaking)
REQUIREMENT AS PROVIDED IN
)
SECTION 21
(d) OF THE ACT
)
OPINION
AND
ORDER OF THE BOARD
(by J. Anderson):
On March 29,
1991,
the Illinois Environmental Regulatory
Group
(IERG)
filed a motion requesting that the Board dismiss
this proceeding.
Responses filed in support of the motion were
filed by: The Illinois Environmental Protection Agency
(Agency)
on April
9,
1991;
and, as requested by the Board in an Order of
May 9,
1991,
the Department of Energy and Natural Resources
(DENR), including its Hazardous Waste Research and Information
Center on June 3,
1991. A response in opposition to the motion
was filed by Waste Management of Illinois,
Inc.
(WMI).
On June
28,
1991,
IERG filed a reply to
WMI’s
response, and on July 3,
1991, ~NI filed supplemental comments in response to IERG’s June
28,
1991 reply.
IERG essentially makes two assertions.
First,
IERG notes that a September
12,
1988 amendment to the
Environmental Protection Act
(Act),
Section 21(d)(3)
is self-
implementing, and that it requires that information be given to
the Agency that is “identical to that which was considered by the
Board in this proceeding”.
(IERG Motion,
p.
2).
Therefore IERG
believes that a census of storage, treatment and disposal
operations that are exempt from the requirement to have a permit
is unnecessary.
Second, IERG asserts that the Board’s nonhazardous waste
landfill regulations require information from onsite landfills by
March 18,1991 that go beyond what is required in the census.
IERG attached the Agency notification form and asserted that it
“should have been filled out by all affected entities and
returned” by the March 18,
1991 deadline.
(IERG motion,
p.
3).
The Agency asserts that it has already received the
information sought under the proposed regulatory proceeding
pursuant to the Section 21(d) (3) and the Board’s landfill
regulations at 35 Ill.
Adm. Code 814.103.
125—529
2
DENR,
in its response, particularly encourages the Agency
and all permit-exempt waste facilities to make every effOrt to
ensure that the reporting requirements are honored.
DENR
emphasized this need especially with regard to getting as much
reporting and recording detail as is practicable of the
quantities and types of waste stored.
WNI,
in its response, focused on the desireability of
collecting “permit—exempt” data on waste disposal practices
generally and on landfills in particular.
It asserts that the
Board has
a number of.regulatory proposals related to waste
disposal practices for which the census data would be
particularly helpful.
WMI
also asserts that the data collected
should alleviate the need to rely on the Agency’s particular
investigatory scheme,
its schedule,
or the format used to collect
the data, which might not meet the needs of the Board’s own
regulatory program.
WMI
points out that the Board would never
have opened this R88-8 Docket on the same day that it proposed
for First Notice its R88-7 landfill regulations,
if R88-7
answered the Board’s need for certain data.
In its reply to WMI, IERG asserted that WMI’s approach would
be counter-productive in that it would have the Agency, DENR and
the Board separately collecting data,
rather that having the
effort be a cooperative one as envisioned by the Act.*
IERG also
pointed out the resources that must be utilized by all concerned
in the coming years to comply with the Clean Air Act Amendments
of 1991.
In WMI’s reply to IERG,
WNI
states that it recognizes,
but
so does the census proposal, the Agency’s difficulties in
allocating resources to competing dictates,
including the Clean
Air Act Amendments of 1990.
It noted that,
often for this reason,
it is sometimes necessary for the Board to initiate proposals in
response to environmental needs.
WMI
asserts that, rather than
being a sign that the Board and IEPA are acting at cross-
purposes,
it demonstrates their complimentary roles.
*
The reasons put forth by the commentors appear to reflect
some misunderstanding of the Board’s census effort.
The Board
was quite aware that the new landfill regulations would,
for the
first time, establish an enforceable program for the reporting by
onsite landfill facilities,
eventually in a detail rivaling that
*
There were some sharp comments made regarding “playing
one agency off against another” which are not detailed here.
We
do
note,
however,
that,
in
proposing
the
census,
the
Board
specifically focused on the potential for a cooperative effort, and
specifically raised the question of Agency resources——an item that
the
coinmentors appears to have overlooked.
(See
Proposed Rule,
First Notice Opinion and Order,
R88—8,
p.
3,4).
125—530
3
required of permitted facilities.
The attachment to IERG’s
motion of the Agency’s notice form for implementing the March 18,
1991 “first cut” deadline in the Board’s regulations asks for
considerably more information from the unpermitted onsite
facilities as opposed to the permitted facilities.
Having said
this, we note that a comparision of the EcIs study and testimony
at the November 17 and 27,
1989 EcIs hearings in R88—7
(after the
Agency had received information pursuant to Section 21(d)(3)),
showed significant disparities between information received by
the Agency and that gathered by the EcIS contractors regarding
even the location and number of onsite landills.
In any event, the census effort was not primarily focused on
landfills per Se.
As the Board stated in its First Notice
Opinion in this docket:
The Board intends to next focus on detailed regulations
for the storage and treatment of waste.
However,
without basic data as to their whereabouts
(including
hydrogeological)
and what they do, the environmental
protection standards being developed in any regulatory
program risk being based on false assumptions, to the
detriment of the environment and the regulated
community alike.
(R88—8, May 5,
1988,
p.
3.).
We note that on the census form we ask the operator to make
a reasonable decision as to whether its operation constitutes
treatment, storage,
or disposal.
(First Notice Order, p.9,
Section 808.112).
This is not an easy determination.
If the
Board is to,
say, better regulate storage sites,
some of which
most certainly constitute a considerable potential for
environmental harm,
it needs to first distinguish among facility
activities,
and then determine whether these activities need to
be regulated differently.
One of the most basic problems, for example,
is in
distinguishing between storage and disposal, and distinguishing
both of those from such activities as recycling.
For example,
the Act doesn’t even define nonhazardous waste storage, and the
definition for hazardous waste storage states it is “the
containment of hazardous waste, either on a temporary basis or
for a period of years, in such a manner as not to constitute
disposal
...“
This is a circular definition indeed.
As the participants know, we had great difficulty in coping
with the storage issue in R88—7.
“Blocking out” what is a
landfill, particularly what is a waste pile landfill, was an
essential effort if the regulations were to be enforceable.
The
landfill regulations only indirectly put a one-year time limit on
storage, and then only in the definition of waste pile.
“...a
waste pile is a landfill, unless the operator can demonstrate
that such wastes are not accumulated over time for disposal.
At
125—531
4
a minimum, such demonstration shall include evidence,
maintained on a yearly basis, that show that within the preceding
year the waste has been removed for utilization or disposed
elsewhere.”
(35 Ill. Admin. Code 810.103).
There were a number of other regulatory problems that the
Board faced that we felt would not be cured by the information to
be gathered by the landfill regulations or the information to be
gathered by Section 21(d) (3) of the Act.
Examples include
injection wells,
solid waste tanks and containers
(the census
excluded dumpsters)
in and above ground, surface impoundments
(pits, ponds and lagoons
--
those without NPDES permits),
junkyards, including auto junkyards, as well as storage and
treatment facilities in general.
Overall, the data accumulated by the Agency under Section
2l(d)(3) may be both overinclusive and underinclusive,
for the
Board’s regulatory purposes.
We also note,
for example, that
the statutory language places waste piles in a category other
than a landfill, uses the words “stored over one year”, and
limits the reporting requirements to piles whose volume is over
100 cubic yards,
all incompatible with Board regulation.
Board Decision.
The Board will dismiss this proceeding,
effective October
15, 1991—over 45 days from now, but not generally for the reasons
put forth by the commentors.
We are particularly swayed by the Agency’s response, the
first in this proceeding,
asserting that it has received the
information the Board needs pursuant to Section 21(d) (3).
We
also note that IERG made the same assertion (although when IERG
first responded in this proceeding,
on June 17,
1988,
it asserted
that what is now Section 21(d) (3)
is “not consistent,
especially
in terms of activities to be covered and information to be
reported”).
(PC#l,
p.
3).
While we do not see how the scope of
the facilities from which information is required in Section
21(d) (3) will sufficiently serve the Board’s regulatory needs as
expressed in this proceeding,
it nevertheless may serve a
significant part of those needs.
However, any conclusion at this juncture is necessarily
speculative; we do not know what information is being referred
to, since none was submitted.
For this reason above all we feel
it would be prudent to pause and take some time to review
available data and analyses of that data,
as
is more fully
explained below.
Meanwhile,
it makes sense to leave this record
open only long enough to receive the information.
Then,
after
taking time for review, we can then decide what would be the
appropriate course of regulatory action.
125—53
2
5
Without limiting the participation of others, we
particularly request the Agency’s assistance in this regard.
We
request the Agency to file no later than October 15,
1991,
i.
e.
while the record is open, its notification form pursuant to
Section 21(d)(3) and any data, or analyses it has already
prepared, that would respond to the Board’s proposed census form.
We also make the same informational request of DENR.
DENR,
including its HWRIC, was of great assistance
in R88-7
in
providing information, and has undertaken prior data gathering
and analyses in this area,
though with a particular focus on
hazardo~iswaste.
Finally,
it is our understanding that the USEPA
may have relevant data;
we would appreciate,
and hereby request,
the USEPA to send us copies of any data or analyses by October
15,
1991, while this record is still open.
In any event, the Board most certainly encourages,
and in
past regulatory proceedings has initiated,
cooperative efforts in
research and data gathering efforts
in developing regulations.
It
is for this reason that we are dismissing this proceeding.
It
is a poor use of resources for all concerned to have overlapping,
datagathering efforts if it can possibly be avoided.
We will
spend the time during the “pause” to evaluate the Agency’s and
others’ information and then evaluate whether a census——or a
modified census——effort does or does not need to be again
initiated.
This Opinion accompanies the Order below.
ORDER
Consistent with the above Opinion, the record in this
proceeding will be held open for public comment through October
15,
1991,
at which point this proceeding is dismissed and this
Docket is closed.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that th~above Opinion and Order was
adopted on the -~i-~-day
of
~
‘~3/,
1991,
by a vote of
7z~1
Dorothy N.GU~, Clerk
Illinois Pol~utionControl Board
125—533