ILLINOIS POLLUTION CONTROL BOARD

November 15, 1989

IN THE MATTER OF:

IDENR SPECIAL WASTE

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R89-13(A)

CATEGORIZATION STUDY

DISSENTING OPINION (by Mr. J.D. Dumelle and Mr. M.L. Nardulli):

We dissent from the Board’s Second Notice Opinion and Order

dated November 15, 1989 in this docket. We are concerned that the

end result of this rulemaking will be a rule that operates

differently from that intended not only by Section 22.9 of the

Environmental Protection Act but also by Section 5.01 of the

Illinois Administrative Procedure Act, and rules and regulations

adopted thereunder.

Specifically, our concern relates to proposed Subpart C,

“Criteria and Data Requirements,” which governs criteria and data

requirements used to predict the degree of hazard pursuant to

Section 808.245. Section 808.302, entitled “Data Base,” governs

that “which may be employed to assess the physical, chemical and

toxicological properties of waste constituents.” Subsection (b)

states that:

t~he data base shall consist of data from any

source which the Agency determines is

reasonably reliable as a basis for decision.

Reasonable reliability of a source shall be

assessed by reference to factors including,

but not limited to ,its scientific validity,

the consistency with which the source reflects

directly observable data, including monitoring

data, and the consistency of results of

repeated applications of data and formulae.

Such data sources include, but are not limited

to the following:

1) Data from standard reference

sources;

2) Data published or incorporated by

reference by a federal regulation or

by a regulation adopted by an agency

of the State of Illinois;

3) Data included in the application

under consideration and in written

communications between the applicant

and the Agency or their

representatives, with respect to the

application;

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4) Data previously used by the Agency

in other wastestream categorization

determinations; and

5) Data from Agency inspection,

permitting and enforcement files

relating to the generator or the

wastestream, excluding complaint

forms except where the complainant

will be available voluntarily for

deposition and examination under

oath at any hearing on appeal

pursuant to Subpart G.

As stated in subsection (a), this data base will be used to

determine the physical, chemical and toxicological properties of

the waste constituents in question. In this regard, what

information exists in this data base will in large measure

determine the values to be applied in the calculation set forth in

Appendix B for determining the toxicity hazard. As a result, the

information in the data base will in large part determine what

toxicity score a given wastestream will have. Because of the

fundamental role that this data base plays in the classification

process, we believe it essential that the data base contents

themselves be adopted under the APA rulemaking procedures, i.e.,

notice and comment, and be set forth in the rule so that those who

are subject to them have advance notice.

Thus, we do not believe that such an important determination

as to what will be included in the data base should be left to

what the Agency believes is “reasonably reliable as a basis for

decision.” This language permits the Agency too much leeway in

making its determioations and does not nive adequate notice to

the

regulated community as to how the rule works. Further, even

though Section 808.302(b) sets out what “reasonable reliability”

shall include, the Agency is not limited to those sources.

Finally, we are troubled by the inclusion of subsection (b) (4) ;

data previously used by the Agency in other determinations. This

information may not always be available to the regulated community

such that it can perform its own independent assessment under the

rule. Also, it seems to us, if these data were previously used,

it must have come in under one of the other listed sources; thus,

subsection (b) (4) may well be redundant.

For these reasons, we dissent.

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‘Já~ob D. Dumelle

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Michael L. N rdutli

Board Member

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was filed

on the

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day of

_____________________,

1989.

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Dorothy

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Gunn, Clerk,

Illinoi~Po1lution Control Board

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