ILLINOIS POLLUTION CONTROL BOARD

October 18, 1989

IN THE MATTER OF:

)

)

IDENR SPECIAL WASTE

)

R89-13(A)

CATEGORIZATION STUDY

)

DISSENTING OPINION

(by J.

D.

Dumelle):

I

hereby dissent

from

the Board’s

Opinion and

Order

dated

October

18,

1989

in

this

docket.

I am

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,

my

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:

the

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

observ~blc

data,

including

iv~onitoring

data,

and

the

consistency

of

results

of

repeated

applications

of

data

and

formulae.

Such data sources include, but are not limited

to the following:

I)

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;

I()4

577

---

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,

I

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,

I 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 determinations and does not give 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,

I am 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 me,

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,

I dissent.

~

~/;

‘5//7i

-

“

Jacob D.

Dumelle

Board Member

104

5753