ILLINOIS POLLUTION CONTROL BOARD
April
25,
1991
SEXTON ENVIRONMENTAL
SYSTEMS, INC.,
Petitioner,
V.
)
PCB 91-4
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
MR. CLIFTON A LAKE, APPEARED ON BEHALF OF THE PETITIONER; AND
MR. CHARLES NORTHRUP AND MR. THEODORE DRAGOVICH, APPEARED ON
BEHALF OF THE RESPONDEN:’.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on a petition for permit
review filed on January
7,
1991,
by Sexton Environmental Systems
Inc.
(SES).
SES appeals the inclusion of Special Condition
No.
29
(Condition)
in an Experimental Development Permit
issued for
two
years
by the Environmental Protection Agency
(Agency) on
December
3,
1990.
The Condition imposes hazardous waste
fees
pursuant to Section 22.2
of the Environmental Protection Act
(Act)
(Ill.
Rev.
Stat.
1989,
ch.
111—1/2,
par.
1022.2).*
The
Permit governs operations at a site located at
2225-39 Harrison
Street,
Chicago, Cook County,
Illinois.
On February
25, 1991,
the Agency filed
a motion for summary
judgment; on March
7,
1991,
SES filed
its response in opposition;
on March
8,
1991,
the Board denied the Agencyts motion.
Hearing
was held on March 11,
1991,
at which Mr.
Larry Lawrence,
president of
SES,
presented testimony.
On March
26,
1991,
both
the Agency and SES filed post-hearing briefs, and
on
April
5,
1991,
the parties filed reply briefs.
BACKGROUND
SES,
an Illinois Corporation,
is a wholly owned subsidiary
of John Sexton Contractors Co.
SES sought the experimental
*
By Orders of March
8 and March
28,
1991,
the Board granted
motions by SES to maintain as confidential certain information
in
the permit record and the hearing transcript.
121—633
—2—
development permit
to allow it
to construct and operate a pilot
plant, to 10
scale,
that
is designed to render
innocuous
“hazardous
(infectious) hospital waste” by a proprietary process
involving chemical treatment.
(Pet.
p.
1, January
7,
1991).*
The experimental permit
..ssued by the Agency authorized SES
to
develop a solid waste management site to treat only “hazardous
(infectious) hospital waste”;
treatment of RCRA hazardous wastes
is forbidden
in Condition
12.
Condition #29 states:
“All
hazardous (infectious) hospital waste shall
be subject
to fees
in
accordance with 22.2 of the Environmental Protection Act.”
(SES
Pet. January
7,
1991,
Ex.
1,
p.
1,3,
4)
The pilot plant
is
to be operated as a research facility
under a lease agreement with,
and under
the jurisdiction of,
the
Illinois Medical Center Commission
(Commission)
(see
Illinois
Medical Center District Act,
Ill. Re. Stat.
ch.
111 1/2,
para.
5001).
A special oversight committee of
the Commission consists
of representatives from the Commission,
the University of
Illinois College of ~!edicine,Rush—Presbyterian—St
Luke’s Medical
Center, Cook County Hospital, Westside V.A. Medical Center, and
the Chicago Technology Park.
The leased facility
is located
about one mile west
of downtown Chicago,
and the City of
Chicago’s Zoning Department has concurred with the use of the
site for
a temporary research project
as approved by the
Commission.
(Exp. Permit Appl.
Sec.
1.0,
Sec.
4.0;
R. pp. 11-
12)
•**
SES asserts that the chemical treatment process
is designed
“to destroy all biologically active material” and
“to
produce
wastestreams capable of being recycled into useful products.”
(R.
p.
12).
As previously stated,
the pilot plant will not receive
any RCRA hazardous wastes.
SES states that the pathogenic
microorganisms are the constituents
of concern,
that the chemical
composition of
the substrate materials
is
not altered,
and that
the process does not “result
in any wastewater discharges
to
surface waters or
to publically-owned treatment works
nor any
emissions
of pollutants
to the atmosphere.”
(R.
p.
14)
SES
states that “inherent in the process
is the ability
to produce
recyclable wastestreams of paper
pulp, plastics, metal and
glass.”
(R.
p.
9).
*
The Board’s regulations add
“infectious”
to the statutory
term Hazardous Hospital Waste only to identify the characteristic
of the waste being regulated pursuant to the statutory mandate.
This opinion generally
will
use the term as found
in
the
regulations,
i.e. hazardous
(infectious)
hospital waste.
These
regulations were adopted
in Docket R80—l9,
May
28,
1981 and are
codified at
35
Ill. Adm. Code 809.901 et
seq.
**
Section 39.2(h)
exempts the City of Chicago from the siting
approval requirements commonly known as
“SB 172”.
121—634
—3—
SES intends, after one year of operation under
the
experimental permit and validation of the process,
to initiate
full scale commercial operation
in the State.
(R. p.9).
SES also
intends to
seek an amendment
to the Board’s Part 809 Hazardous
(infectious) Hospital waste
regulations
to include its process as
an approved treatment
for rendering the waste innocuous;
presently, only incineration,
or sterilization by autoclaving or
ethylene oxide chemical treatment are approved under the
regulations under
35 Ill. Adm. Code 809.903 and 809.904.
SES
testified that
it has already received encouraging responses on
the recycling potential once
it demonstrates that its process
does render
the waste innocuous.
SES’S contacts include Western
Michigan University in Kalamazoo and varous mills and recycling
brokers.
Meanwhile, the wastestreams produced under the
experimental permit will be disposed in an out—of—state
landfill.
(R.
pp.
24—27).
ISSUES
SES has based its challenge of Experimental Permit Condition
No.
29 on three arguments:
1.
That the Board wrongly decided
in a prior case that
the
hazardous waste treatment fee of Section
22.2 of the Act
is applicable to incineration of
“hazardous
(infectious)
hospital waste”.
See: National Environmental Services
Corporation
v.
Illinois Environmental Protection Agency,
PCB 89—129
(July
19,
1990.)
(appeal pending)
2.
That the NESC case
is not precedential
in this case
because SES’ proprietary process
is not a “treatment’
that
is provided for
in the Board’s hazardous
(infectious)
hospital waste regulations,
and thus does
not result
in “treatment”
for purposes of the fee
provisions of Section 22.2.
3.
That the SES process separates the components of the
hazardous
(infectious)
hospital waste into recyclable
paper,
plastic,
glass and metal wastestreams,
thus
falling under
the exemption from the fee provisions
in
Section 22.2(b)(1)(D).
(Pet. Brief,
p.1, March 26,
1991).
BOARD DISCUSSION
For the reasons expressed below,
the Board finds,
as a
matter
of
law,
that,
until
the SES’ process is allowed by Board
regulation,
SES
is not providing
a method of treatment of the
hazardous
(infectious) hospital waste.
Thus,
the provisions of
Section 22.2 do not apply.
The Board has concluded
that it need not, certainly at this
juncture, address
either
the issue as
to whether
the Board was
in
12 1—635
—4—
error
in its NESC decision (which involved incineration, a Board
authorized treatment)
or the issue as to whether SES is exempt
under the recycling provisions
of Section
22.2.
Hazardous (infectious) hospital waste
is
in a distinct,
indeed unique,
category
in the statutes.
In P.A. 84—1308,
effective August
25, 1981,
the Legislature expressly defined
hazardous (infectious) hospital waste:
a) as waste whose
infectious characteristics had not been rendered innocuous,
b)
banned non—rendered-innocuous waste from landfilling, and
c)
mandated that the Board,
by regulation, provide methods of
treatment to render
the waste innocuous.
The provisions are
quoted in full as follows:
Section 3.13
“HAZARDOUS
HOSPITAL
WASTES”
means
waste
generated in connection with patient care that
is
contaminated
with
or
may
be
contaminated
with
an
infectious
agent
that
has
the
potential of
inducing an infection and has not
been
rendered
innocuous
by
sterilization
or
incineration.
Section
21. No person shall:
(m)
Deposit
any hazardous
hospital
wastes
in
any
landfill on or after January
1,
1981.
All
such
waste
shall
be
properly
incinerated
or
processed by an alternative method pursuant
to
regulations
adopted
by
the
Board.
This
requirement
shall
take
effect
by
January
1,
1981.
The Board adopted the mandated regulations
in R80—l9.
(See
note,
p.
2).
The methods of allowable •treatment are found
in
35
Ill. Mm.
Code 809.903 and 809.904.
They provide for
“rendering
innocuous”
by sterilization
in an autoclave,
sterilization
in a
commercial ethylene oxide unit, and by incineration.
No other
methods for rendering the waste innocuous have been added since
the initial regulatory proceeding.
Indeed, none have been
proposed to the Board
for consideration.
It
is not
in dispute that SES’
chemical treatment process
does not
fall within the listed methods
in the regulations.
Nor
is
it
in dispute that the waste remains
a hazardous (infectious)
hospital waste after
the SES process.
This
is because the waste
cannot be considered to have been rendered
innocuous, regardless
of the success
of the process biologically, until the Board’s
regulations have been amended
to include the SES process on the
list of approved treatment methods.
The Agency requires
the
waste
to be managed as a hazardous
(infectious)
hospital waste
in
its Special Condition
21.
121—636
—5—
The Agency also stated:
Because
the waste
treated by
the SES process
remains
a
hazardous
(infectious)
hospital
waste
it
may
not
be
reused.
Only
after
a
hazardous (infectious)
hospital waste has been
rendered
innocuous
can
the
possibility
of
reuse be considered.
Agency Brief,
p.
8, March 26,
1991
The Agency nevertheless argued that the Section
22.2(b)(l)(D) treatment fee provisions apply.
Section
22.2(b)(l)(D) states
in pertinent part:
For purposes
of
this subsection
(b),
the
term
“treatment”
is defined
as
in Section 3.49
but
shall
not
include
recycling,
reclamation
or
reuse.
Section 3.49 defines treatment as follows:
“TREATMENT”
when
used
in
connection
with
hazardous waste means any method, technique or
process, including neutralization, designed
to
change
the
physical,
chemical,
or
biological
character
or
composition
of
any
hazardous
waste
so
as
to
neutralize such waste
or
so
as
to
render
such waste
ncnhazardous,
safer
for
transport,
amenable for recovery, amenable for
storage
or
reduced
in
volume.
Such
term
includes
any
activity
or
processing designed
to
change
the
physical
form
or
chemical
composition of hazardous waste so as
to render
it
nonhazardous.
(emphasis added)
The Agency argues that the SES treatment process
is
a
method, technique or process,
that
it
is designed to change the
physical, chemical,
or biological character or composition of the
waste,
that the SES application indicates that the waste will be
reduced in
size, and that the biological elements will be
rendered inactive and thus change
its character and composition.
(Agency Brief,
p.
6).
While disputing some of
the Agency’s characterizations (see
p.
2 above), SES goes on to argue that,
while the destruction of
pathogens might
“in ordinary parlance”
be “treatment”,
it
is not
“treatment”
for regulatory purposes.
SES then states:
The
Agency
cannot
have
it
both
ways.
It
cannot regulate the residue
of
SES’ processing
of hazardous
(infectious)
hospital waste as
if
there had been
no
“treatment,” and at the same
time impose the Section 22.2
fee which applies
121—637
—6—
only
to
hazardous
waste
received
for
“treatment.”
Because
SES’
process
clearly
is
not
“treatment”
of
hazardous
(infectious)
hospital waste for purposes of Part 809 of
the
regulations
it
cannot
be
reasonably
be
(sic)
interpreted
as
“treatment”
for
purposes
of
Section 22.2 of the Act.
SES Reply Brief,
p.
5,
April
5,
1991.
The Board has concluded that the SES process cannot be
categorized as a “treatment” during the experimental permit
period with the meaning of the “hazardous hospital waste” statute
and Board regulations, or within the meaning of Section 3.49.
The only statutory characteristic of hazardous hospital
waste that makes
it even arguably a hazardous waste
is
its
infectious characteristic.
Moreover,
the statutory designation
of the wastes as “hazardous hospsital wastes”
is by definition
linked solely to the fact that such wastes have not been rendered
innocuous.
It
is only this failure
to be “rendered innocuous”
that causes
the wastes to be specially regulated at
all
(and then
only
if
it comes from hospitals).
Pursuant
to the Board
definition
in
35
Ill. Adm. Code 809.901(f),
“Innocuous hospital
waste”
is defined as not a special waste, and
is
rio
longer banned
from disposal in a landfill, including a non—hazardous waste
landfill.*
Once the statutory requirement
is fulfilled that the
waste
is rendered innocuous only by treatment methods approved by
the Board,
the special
regulatory oversight required of
this
defined waste ceases.
The general definit~onof “treatment”
in
Section 3.49 should not construed
so as to be at odds
with
the
specific treatment provisions
in the hazardous (infectious)
hospital waste statute or
regulations.
The process which SES has been authorized
to use on
a
pilot
basis
is an experimental one.
At the present time,
it cannot
be
demonstrated,
to a regulatory certainty,
that the SES process
in
fact will “treat” hazardous hospital waste
“so as to neutralize
such waste or
so as to render such waste nonhazardous,
safer
for
transport,
amenable for
recovery, amenable
for
storage,
or
reduced in volume” within the meaning of Section 3.49.
Until
the
success
of the SES process can be determined,
SES’ operation
is
more appropriately and temporarily characterized as a transfer
station for hazardous (infectious)
hospital waste en route
to its
disposal offsite and out—of—state,
rather than as
a hazardous
waste treatment site.
As
a matter of logic,
as well as statutory
*
“Hospital pathological wastes”
is listed as an industrial
process waste,
a special waste
(See Sections 3.17 and 3.45
of
the
Act).
The Board understands
that
it
is for
this reason that the
Agency has continued
to require municipal
landfills to get
a
supplemental permit
to accept
the
“innocuous waste”.
121—638
—7—
construction, the precise nature of SES
operation cannot be
determined until
its experiment
has been completed.
Put another way,
even
if SES’ process causes
the waste to
become biologically inactive,
the Agency cannot
issue any
operating permit or other authorization that would purport
to
have the waste rendered innocuous until SES successfully
demonstrates
to the Board that its treatment process should be
listed.*
It
is at this time that SES can pursue its hazardous
waste and recycling exemption arguments.
Only by this procedure
can any treatment occur under the regulations.
We also point out
that the other physical, etc.
“treatments” in the Section 3.49
definition referenced in Section 22.2 are not relevant
in that
they refer
to characteristics other
than the only one for which
hazardous (infectious)
hospital waste
is being regulated.
The
Experimental Permit
in fact forbids the waste to contain any RCRA
hazardous wastes,
as noted above,
The Board notes
that today’s result allows
for the
development of new methods
to deal with infectious wastes, while
avoiding economic disincentives for
such efforts during their
development phase.
Finally, since
the Agency appeared to argue both sides of
the matter
(Agency Brief,
p.
8,9, March
26,
1991),
we
note that
it was proper
for SES not to have contracted for
or otherwise
initiated recycling or
reuse of the wastestream generated under
experimental permit.
As noted earlier,
we need not address the
recycling issue here, but point out that SES cannot purport
to
others that the waste
is innocuous,
nor can SES allow any portion
of
the waste to end up in an Illinois landfill.
This Opinion constitutes the Board’s findings of
fact and
conclusions of law in this matter.
ORDER
Special Condition #29 of
the Environmental Permit No.
1990-
108—DE-Ex,
issued by the Agency
to Sexton Environmental Systems,
Inc.
is hereby struck.
Section 41 of the Illinois Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch. lll~,par.
1041, provides
for appeal of
final orders of the Board within
35 days.
The Rules of the
Supreme Court of
Illinois establish filing requirements.
IT IS
SO ORDERED.
*
We
note that the authority of the Agency
to
rely on the
experimental permit provisions
in the Board’s Part
807
regulations
to issue this experimental permit was not argued
here.
121—639
—8—
J.
Dumelle, R. Flemal and B. Forcade dissented.
J.
T. Meyer concurred.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Contro~
Board, hereby cert4~f~ythatthe above Opinion and Order was
adopte~on the
‘~j~-’~
day
of
~
,
1991, by
a vote
0fJ2L-~_.
//
i~
~
Dorothy M. G~n, Clerk
Illinois
PolLiution Control Board
121—640