ILLINOIS POLLUTION CONTROL BOARD

August

30,

1990

IN THE MATTER OF:

R86—9(B)

HAZARDOUS WASTE PROHIBITIONS

)

(Rulemaking)

DISSENTING OPINION

(by J.D. Dumelle and

B.

Forcade):

Today

the Board has,

by

a 4—3 vote, decided

that Section

39(h)

of the Illinois Environmental Act

is

in need of

a

rulemaking.

We respectfully dissent from that position.

Section

39(h)

is a self effectuating statute.

Moreover,

the

analysis which

it demands

is,

by

its very meaning, site—

specific.

In

other words,

the reduction of hazardous waste

is

so

vital

to the health of our environment that each case should be

judged individually.

Because a uniform set of guidelines would

necessarily preclude some evaluation

of site—specific

circumstances and thereby lessen the potential

impact of 39(h),

we

dissent.

BACKGROUND

In October of

1986,

the

Board adopted an emergency

rulemaking essentially prohibiting the Illinois Environmental

Protection Agency (“Agency~) from enforcing certain interpretive

provisions of Section 39(h)

of the Environmental Protection

Act.

The Board enacted the emergency

rule largely due to

a

concern that the Agency would attempt to initiate wide—scale

industrial

internal process changes.

This

rulemaking was

appealed by Citizens For A Better Environment

(“CBE”).

On

appeal,

the court did not reach

the substance of the proposal,

but instead dismissed

the rule finding that

no emergency existed,

CBE

v.

Pollution Control Board,

152

Ill. App.

3d 105 (1st.

Dist.

1987).

In the meantime,

the Agency has implemented the rule with

very little controversy,

yet some participants

still maintain

that the potential

ramifications are such that permanent

rules

are necessary.

DISCUSSION

The Agency and CEE have filed post hearing comments urging

the Board not

to adopt regulations.

It

is their general position

that

39(h) has been implemented fairly and reasonably over

the

last

four years and therefore any regulations would

be

unnecessary.

More

specifically, CBE contends

that the Board

is

not

legally required

to adopt regulations implementing Section

39(h), nor

is there any practical need

to do

so at

the present

time.

CBE also main~ins that

the proposals put forth

by the

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Illinois Environmental Regulatory Group

(“IERG”) and Chemical

Waste Management

(“CWM”) would severely and illegally restrict

the reach of Section 39(h),

and thus contravene

the intent of the

statute.

IERG and

CWM,

on the other

hand, •seek

the adoption of

regulations which

are, consistent with the Resource Conservation

and Recovery Act

(“RCRA”)

and do not have the inherent power

to

tamper with a complex manufacturing process.

They argue

that the

Agency

is not the appropriate source to dictate when process

changes should occur.

In short,

IERG and CWM would like

to adopt

regulations similar

to those of

RCRA

in that they could appease

all levels of bureaucracy uniformly.

While both IERG’s and CWM’s

proposed regulations are, on the whole, consistent with RCRA,

neither participant has demonstrated how Section 39(h)

is

inconsistent with RCRA.

It

is no secret that IERG and those industries which fall

under the auspices of

39(h)

are already subject

to RCRA.

Any

attempt

to equate

these standards with

39(h) would effectively

nullify the statute.

Barring extreme circumstances,

we are

reluctant

to undertake such an endeavor.

On the contrary, there

exist

a number of reasons why we

should recognize Section 39(h)

and applaud its implementation.

Section 3009 of RCRA expressly

allows states the ability

to enact legislation more stringent

than its federal counterparts. Section 39(h)

is clearly such a

case.

As CBE’s post—hearing comments point out, Section 39(h)

of

the Act consists of a fundamentally different approach than those

applicable federal requirements.

That

is,

it

is theoretically

possible that an industry that would meet federal requirements

would fail to meet those mandates inherent in 39(h).

The federal

standard of Best Demonstrated Available Technology

(~~BDAT!I)has

been replaced by the state standard of

‘technologically feasible

and economically reasonable~

-

a measurement which could be more

stringent than BDAT.

While IERG and CWM claim

that Section 39(h)

is too subjective and therefore has the potential for

capriciousness, CBE and the Agency maintain that

this statute

affords Illinois

the opportunity

to tailor

its needs and

circumstances

in

the best possible light.

We recognize the

legitimacy of both arguments,

but are loathe

to disregard the

clear

language of the statute.

Section 39(h)

states

in full:

Commencing January

1,

1987,

a hazardous waste

stream may not

be deposited

in a permitted

hazardous waste

site unless specific

authorization

is obtained from the Agency

by

the generator and the disposal site owner and

operator

for

the deposit of that specific

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hazardous waste stream.

The Agency may grant

specific authorization for disposal of

hazardous waste streams only after the

generator has reasonably demonstrated that,

considering technological feasibility and

economic reasonableness,

the hazardous waste

cannot

be reasonably

recycled for

reuse,

nor

incinerated or chemically, physically or

biologically treated

so as

to neutralize the

hazardous waste and render

it

nonhazardous.

In granting authorization under this Section,

the Agency may impose such conditions as may

be necessary

to accomplish

the purposes of the

Act and are consistent

with

this Act and

regulations promulgated

by the Board

hereunder.

If the Agency refuses to grant

authorization under

this Section, the

applicant may appeal as

if

the Agency refused

to grant

a permit pursuant

to the provisions

of subsection

(a) of Section 40 of this Act.

Ill.

Rev.

Stat.

Chap.

111—1/2

Section 39(h)

The wording contained within Section

39(h)

is discretionary

so that

the purpose

of

the Act can be implemented on a case-by—

case basis.

While

this undoubtedly presents potential problems

for industry, we cannot assume that

the General Assembly did not

consider this aspect.

Instead,

the plain language reveals

that

the reduction of hazardous waste

is such

a priority that the

Agency

would be given some discretion

in the implementation of

Section

39(h).

This approach

is further

supported by the

language giving discretion to

the Board as

to whether

or not

regulations should be promulgated

in regards

to Section 39(h).

It

is unequivocally clear that the Board is under

no legal duty

to adopt regulations.

CBE and the Agency maintain that within the 3—1/2

year

period of implementation,

there has been only one permit

appeal.

They construe

this

to mean that permits have been

provided for fairly and reasonably.

IERG and CWM acknowledge

only that one permit appeal has gone forward.

While we find that

this aspect may

be considered,

it

is by no means dispositive.

This merely indicates

that the Agency has not pursued

those

powers that

it maintains Section

39(h)

has conferred upon

it.

At

the same time,

however,

the post—hearing comments of the Agency

reveal that reductions

in hazardous waste disposal has been

significant without wide-scale Agency intervention

in regards

to

process changes.

We are therefore less than eager

to adopt rules

where there

is evidently no need to do so.

To date,

industry has

had few practical complaints and significant

reductions have been

achieved.

Nor do we view the possibility of

future

Agency action

as a legitimate basis

for adopting regulations;

that

is,

in terms

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of environmental impact,

Section 39(h)

has been successful

in

reducing land ‘disposal of hazardous wastes.

There

is no

guarantee that any of the proposals submitted will be equally

effective.

Accordingly,

the effectiveness of Section

39(h)

coupled with the lack of generator complaints necessarily begs

the question as

to why any further

rules are needed.

The representatives of

industry assert that guidelines are

necessary because if Section 39(h) does

in fact authorize the

Agency

to scrutinize internal processes,

then standards should be

set

in place

so as

to avoid arbitrary results.

As mentioned

above,

the language of

39(h)

is very discretionary.

The burden

of demonstration lies with the generator, and the statute

authorizes

the Agency

“to

impose such conditions

as may be

necessary to accomplish the purposes of

the Act...”

The question

presented,

then,

remains just how far the Agency can go.

When

issues such

as these arise,

it becomes quite clear why industry

seeks uniform regulations.

Yet because the statute applies

to

all generators of hazardous waste and the purpose of the statute

is clearly

to reduce hazardous waste disposal,

the legislature

drafted the statute

to allow the Agency discretion with respect

to varying circumstances.

Notwithstanding the last

four years,

however, yet another

issue

is whether process

intervention

is within the appropriate

scope of

the Agency.

Implicit

in the comments of IERG and CWM is

the premise that the Agency’s power

to evaluate internal

processes might impede

a generator’s ability

to compete

in the

marketplace.

Yet any such result would clearly contravene

the

“economically reasonable” standard inherent

in the statute and

therefore afford a generator appeal rights with

the Board as well

as the courts.

With that in mind, we can conceive of

some

circumstances whereby intervention

-

albeit that of

a relatively

simple nature

-

might be beneficial.

For example,

IERG argues

that the answers the Agency solicits are,

in some cases,

improper:

Unfortunately, in

the “Request

for

Authorization to Deposit Hazardous Waste

in a

Disposal Facility” prepared by the Agency,

the

instructions

for generators to use

in applying

for

a Section 39(h) wastestream authorization

appear

to go outside

the statute and the

agreement

as

to

interpretation.

The Agency

continues

to require the generator

to respond

to such questions as

“(d)escribe any changes

made

to the process

to reduce the hazardous

waste generated

through the use of different

raw or intermediate materials” and “(w)hat

equipment or other

process changes have been

or can be made to reduce or

recycle hazardous

waste.”

It

is improper for the Agency

to

continue to require the kind of information.

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(IERG Post—Hearing Comments at

14)

We can envision

a scenario whereby the gathering of this

type of information might help achieve the purpose of

the Act.

Assuming that

the information requested

is not

a trade secret or

otherwise proprietary

in nature,

the Agency could conceivably

gather and ultim~telyshare data resulting

in the reduction of

hazardous waste.1

At the same time,

we caution that any such

practice would be limited

in scope and probably of

the most

simplistic nature.

We do not foresee

—

nor do we

think

it

appropriate

—

that the Agency will second—guess

a process system

which

it does not completely understand.

Further, we feel that

for

the Agency

to expend a great deal of its energy and resources

analyzing the manufacturing processes

of highly—specialized

industries would be less than pragmatic.

In that regard, we note that irrespective of

39(h)

there

exists incentive within the marketplace

to

reduce hazardous

wastes.

And according to the record,

research

is currently

underway

to that effect.

In any event,

we note that the concerns

of industry elicited here are meritorious and well—noted.

In

light of

the fact that no problems have arisen thus far,

however,

we are unwilling to undermine

a statute whose purpose we applaud

and replace

it with regulations similar

to those federal

provisions already in effect.

We emphasize

the fact that

dismissing this proceeding

today would

in no way undermine the

Board’s power

in this matter.

The Board, with or without a

rule,

‘HR 1457,

entitled the Waste Reduction Act,

recently passed

through the House of Representatives and

is currently pending

before the Senate.

This federal legislation goes even further

than Section 39(h)

of

the State Act.

It declares that the

national policy

is

to reduce or prevent pollution

at

its source

wherever possible.

In

that regard,

the program requires the EPA

to:

(1) make matching grants

to States

for programs promoting the

use of

source reduction techniques by businesses; and

(2)

establish

a Source Reduction Clearinghouse

to compile information

generated by States receiving grants on management,

technical,

and operational approaches

to source reduction.

HR 1457

further

mandates

that the

filings of annual toxic chemical

release forms

required under

the Superfund Amendments and Reauthorization Act

of 1986 include toxic chemical source reduction and recycling

reports for toxic chemicals which are the subject of such

filings.

These reports include information on

a facility—by—

facility basis as to:(l)

the amounts

and

source reduction

practices used with resoect

to

suc~’. chemicals;

(2) measurements

of

chances from past

to anticipated levels of

chemical reduction

and

recyclinc;

and

(3)

the techniques

used to identify source

reduction opoortunities.

Finally,

all of the information

gathered by virtue of this bill will be available

to the public.

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still

retains jursidiction for hearing appeals pursuant

to

Section

40 of the Act.

Further,

if the Board had dismissed this

rulemaking today,

it would still possess the power

to initiate a

rulemaking

if the stated concerns of

industry did

in fact arise

in the future.

zn/n

J cob D. Dumelle, P.E.

Bil~S~ö~cade

-

oard Member

Board Member

I,

Dorothy M.

Gunn,

Clerk of

the Illinois Pollution Control

Board,

do hereby certify that the above Qissenting Opinion was

submitted on the

__________

day of

~

,

1990.

/

~

~

Dorothy M.

Gunn,

Clerk

Illinois Pollution Control Board

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