ILLINOIS POLLUTION CONTROL BOARD

April 25, 1991

SEXTON ENVIRONMENTAL

I

INC.,)

)

Petitioner,

V.

)

PCB 91—4

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

DISSENTING OPINION

(by B.

Forcade and J.D.

Dumelle):

We cannot support the language adopted today because

it

holds that SES’s process is not “treatment”.

Section 3.49 of the

Illinois Environmental Protection Act defines “treatment”:

Section 3.49

“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 nonhazardous, 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)

SES’s permit applications was for

,

“a novel treatment process”,

SES designates the facility

in its general application as a

treatment facility, the Agency permit allows SES to treat the

waste,

SES agrees that the process will reduce the waste in

volume

(see emphasized language above), SES agrees that the

process will change the physical and biological character of the

waste so as to render

it amenable for recovery or storage

(see

emphasized language above). This must be “treatment”.

The opinion seems to adopt a standard that “treatment”

is

not treatment

if the resulting final product is not rendered

totally non-hazardous.

That is not what the statutory definition

says.

The statute talks about making the resulting product

safer,

smaller. In short, the statute talks about comparative or

proportional reductions

in danger or volume as being treatment.

SES agrees that their process makes such a comparative reduction.

121—643

---

2

Also, the opinion language could result in removing

a large

part of hazardous waste “treatment” from the fee system in

Illinois.

Assume a hazardous waste is hazardous because it

contains a listed waste and is flammable.

Would a process that

only removed its flammability be treatment? It would not under

today’s alternative opinion language.

This is not the result we

believe the General Assembly intended.

The only other

possibility is that the definition of treatment is different when

applied to some wastes compared to when it is applied to others.

The General Assembly only provided one definition to treatment.

Years later the General Assembly adopted the tax on treatment.

If they had intended the tax only to apply to certain types of

treatment or treatment of certain wastes, they would have said

so.

The Board in its rulemaking process cannot lessen a

statute’s scope.

Section 3.15 of the Act defines “hazardous

waste” to include wastes with “infectious characteristics.”

That

portion of the definition is separated by a semi—colon from other

text made dependant upon RCRA designations or Board rules.

Thus,

since the wastes here at issue had “infectious characteristics”,

it falls under those wastes covered by the General Assembly’s tax

for treatment.

We would hold that SES’s process is treatment and affirm the

Agency determination.

Bill S. Forcade

‘~

~‘

.

D. Dumelle

Board Member

/Board Member

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that th~bove Dissenting Opinion was filed

on the

~~‘~day

of

________________,

1991.

~

~

Dorothy M. G4in, Clerk

Illinois Po3~utionControl Board

12 1—644