ILLINOIS POLLUTION CONTROL BOARD
February
23, 1989
R.P. DONNELLEY & SONS CO.,
)
Petitioner,
v.
)
PCB 88—79
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MS. NANCY J. RICH, SIDLEY AND AUSTIN, APPEARED ON BEHALF OF
PETITIONER:
MR. CHARLES V. MIKALIAN, STAFF ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BoARD (by
P. C. Flernal):
This matter comes before the Board upon a Petition for
Variance filed May 3, 1988 by P.R. Donnelley & Sons, Co.
(TTDorinelley”). Donnelley also filed a Supplemental Petition for
Variance on December 28, 1988; per Donnelley’s request, its
Motion for Leave to Supplement Petition for Variance is
granted. A Variance Recommendation was filed by the Illinois
Environmental Protection Agency (“Agency”) on January 20, 1989.
Hearing was held January 20, 1989, at which time Donnelley
and the Agency submitted a signed Stipulation of Facts and
Proposed Settlement Agreement (“Stipulation”). The Stipulation
addresses the agreed—upon facts in this matter. Additionally,
the Stipulation presents certain settlement provisions between
the parties, and requests that these provisions be “approved” by
the Board pursuant to 35 Ill. Adm. Code Section 103.180.
This matter presents several issues. One issue is the
merits of the matter at hand and the proper disposition which
follows. Other issues include the validity of speciEic
provisions within the Stipulation as presented and the validity
of stipulations and settlement agreements within variance
proceedings generally.
Merits and Disposition
Donnelley and the Agency request the Board find that a
particular material of Donnelley’s is not a waste, and therefore
is not subject to regulations which would otherwise flow.
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—2—
The material in question is an oil, called MMT oil, which is
produced by Donnelley in the course of operations at Donnelley’s
Dwight, Illinois, printing facility. Donnelley generated
approximately 36,000 gallons of MMT oil in 1987, and all of the
oil was sold to oil companies at an average of over 25 cents!
gallon. The parties describe the origin and subsequent
disposition of the oil as follows:
Donnelley’s Dwight plant uses the web offset
printing process. During printing, the web is passed
through a natural gas—fired heat set ink dryer. Ink
oils which vaporize from the paper during drying are
collected by a device called an MMT unit. (The MMT
unit derives it name from MMT Environmental Co., the
firm that designed and manufactures these devices).
The MMT unit is a condensation—filter system that uses
the indirect contact of ambient air to cool vaporized
ink oils. Both ink oil and water vapors from the ink
dryer are condensed into droplets in the MMT unit.
The resulting liquid is then sent through an oil/water
separator. After separation, Donnelley collects the
MMT oil in a 10,000 gallon holding tank. Donneiley
subsequently sells the MMT oil to fuel or oil
companies. The current purchaser of Donnelley’s MMT
oil is Mohr Oil Company (“Mohr”), which is located in
Forest Park, Illinois. Mohr is in the business of
buying and selling oils and fuels.
Mohr buys the MMT oil and picks it up at the
Donnelley facility. Mohr then sells and delivers the
oil directly to an industrial facility in Chicago.
The MMT oil is not delivered to, or stored, blended or
treated at, any other facility prior to its delivery
to the industrial facility. The facility uses the Mt4T
oil as a fuel in its industrial furnarices.
Stipulation, para. 2, 3.
Among characterizations of MMT oil are that it is similar in
composition to standard No. 2 fuel oil (Stipulation, pare. 4),
that it has a high heat value (Pet, for Variance, oara.5), that
in its industrial use it is used in place of virgin fuel oil
(Amended Petition, oara. 3), and that it has a lower sulfur
content than does virgin fuel oil (Id.).
Additionally, based upon laboratory tests, the Agency has
determined that the MMT oil is not a hazardous waste (Agency
Rec., pare. 3), even if was otherwise identified as a
W~1Ste,
and
that the oil presents a relatively small potential for
environmental harm as currently handled (Id., para. 12). These
Agency tests are in accord with with two prior tests done by
independent laboratories at Donnelley’s initiative. (Pet. Ex. B).
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—3—
In determining whether Donnelley’s MMT oil is or is not a
waste, the Board first notes the definition of “waste” found in
relevant Board regulations:
“WASTE” means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air
pollution control facility or other discarded
material, including solid, liquid, semi—solid, or
contained gaseous material resulting from industrial,
commercial, mining and agricultural operations, and
from community activities.... “Waste as here defined
is intended to be consistent with the definition of
“solid waste” set forth in Section 1004(27) of
Resource Conservation and Recovery Act of 1976, 42
U.S.C., par. 6901 et seq.
35 Ill. Adm. Code 809.103 (emphasis added).
The first, and pertinent section of this definition is
identical to that in the Illinois Environmental Protection Act
(“Act”), with the exception that the word “refuse” is absent in
the Act definition Ill. Rev. Stat. 1987 ch. 111. 1/2, oara.
1003. 53.
The definition of “solid waste” in the federal Resource
Conservation and Recovery Act of 1976 (“RCRA”), as amended, 42
U.S.C. 6903(5) was analyzed in American Mining Congress v. U.S.
EPA, 824 F.2d 1177 (D.C. Cir. 1987). Specifically, the court was
presented with the same question presented before the Board;
namely, what is meant by “discarded material” in defining what is
waste?
The federal court conducted a thorough analysis to determine
congressional intent of what is “discarded”. The court concluded
that Congress intended that “discarded” retain its ordinary,
plain—English meaning of “disposed of”, “thrown away” or
“abandoned” (Id. at 1193). In doing so, it rejected U.S. EPA’s
argument of what discarded meant in its own statutory language.
In its analysis, inter alia, the court scrutinized
legislative history of RCRA, including comments made by the House
Committee regarding the disposal problem RCRA is meant to
address. Specifically, in discussing its choice of the words
“discarded materials” to define “solid waste,” the House
Committee stated:
Not only solid waste, but also liquid and
contained gaseous wastes, semi—solid waste and sludges
are the subjects of this legislation. Waste itself is
a misleading word in the context of the committee’s
activity. Much industrial and agricultural waste is
96—163
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reclaimed or put to new use and is therefore not a
part of the discarded materials disposal problem the
committee addresses.
Id. 824 F.2d at 1192.
This same logic is in accord with prior Board rulings.
Specifically, in Safety—Kleen Corp. v. IEPA, PCB 80—12, 37 PCB
363 (Feb. 7, 1980), the Board looked at the issue of whether
spent solvent derived from industrial washi~g equipment and later
recycled to produce clean solvent was waste The Board held:
Since it the solvent was destined to be reused,
rather than discarded, it is not waste.... The Board
does not seek in Chapter 9 to regulate the movement of
materials in general, but only waste.... Section 20 of
the Environmental Protection Act provides that a
purpose of the Act is to promote the conservation of
natural resources by encouraging the recycling and
reuse of waste materials. It would tend to defeat
this purpose of the Act if the Board were to impose
the expenses of compliance with requirements of
Chapter 9 on persons who are engaged in recycling and
reuse of materials which would otherwise be wasted.
Id. at 37 PCB 364.
1 The Board recognizes a second Board Order issued pursuant to a
motion for reconsideration, PCB 80—12, 39 PCB 38 (July 10, 1980)
which provides in part:
The decision of the Board is not based on a finding
that the solvent in question is recyclable. Under the
facts alleged in the petition, Safety—Kleen maintains
control over the solvent at all stages. It is able to
state that the solvent is in fact recycled. This
situation is clearly distinguishable from the case in
which a generator delivers material to a third person
with no knowledge or control over its subsequent
disposition.
Our situation is not like this “clearly distinquishable”
situation because the generator, Donnelley, does have knowledge
and at least partial control over its subsequent disposition.
For Donnelley knows exactly to whom it is selling the oil, Mohr
Company, and the oil is subsequently sent directly to the burner:
without treatment or storage. Furthermore, it is the language in
the Board’s first order which the appellate court relies upon in
its affirmance of the Board’s decision that the spent solvent was
not waste.
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—5—
On appeal, the second district affirmed the Board’s Safety—
Kleen finding that waste is “discarded material” and that since
Safety—1leen’s solvents were not intended to be discarded, they
were not wastes. Futhermore, the court noted that the Board
found Part 809 waste handling regulations were not applicable to
solvent recycling since one of the purposes of the Act is to
encourage recycling and reuse, which was what Safety—Kleen was
doing with its spent solvent. Illinois Environmental Protection
Agency v. Illinois Pollution Control Board and Safety—Kleen
Corp., No. 80—650 (Sept. 18, 1981) (no opinion).
The Board again used similar reasoning in Southern
California Chemical Co., Inc., v. IEPA, PCB 84—51, 60 PCB 103
(Sept. 20, 1984). There, the Board was presented with the issue
of whether spent etching solvent that was eventually returned to
SCC for recycling was “discarded” so as to make it a waste
subject to regulation. Relying upon Safety—Kleen, the Board held
it was not “discarded”, and thus not a waste.
Application of the above interpretations to the Board’s own
statutory language of “discarded” in defining waste, the Board
finds that the particular circumstances under which Donnelley
currently handles its MMT oil, the MMT oil is not “discarded
material”, and therefore is not a waste. Among persuasive
aspects of these particular circumstances, the Board notes:
1) The oil does not have any characteristics of
being discarded since it is used as a valuable
energy product that is used in place of virgin
oils and is preferable to other fuels due to its
low sulfur content.
2) The method in which the oil is currently handled
is environmentally appropriate because it is sent
directly from the Donnelley facility to the
burner without being treated or stored at some
intermediate facility and the oil would not be
classified as hazardous, even if in fact it were
a waste.
In holding that Donnelley’s current disposition of its HIlT
oil is such as to not characterize the oil as a waste, the Board
emphasizes that this holding applies only under the particular
circumstances here presented. The Board further notes that under
other dispositions it can readily conceive that a contrary
holding would follow.’
Having found that Donnelley’s MNIT oil is not a waste, the
Board finds that the variance relief originally requested by
Donnelley in this variance matter is unnecessary. Accordingly,
this matter will be dismissed.
96—165
—6—
Stipulation
The Board next turns to the issue of the Stipulation. The
Board first notes that the Stipulation at paragraph 15 purports
to bind Donnelley to a certain course of conduct in the event
that the Board accepts and adopts the Stipulation. Further,
paragraph 16 of the Stipulation states:
This agreement is submitted to the Board for approval
under Section 103.180 and the parties respectfully
request the Board to enter its final order approving
this settlement. If the Board should reject any
portion hereof, the entire Agreement shall be
terminated and be without legal effect, and the
parties shall be restored to their prior position in
this litigation, without any waiver of their
opportunity to present testimony and other evidence at
an evidentiary hearing, as if this agreement had not
been executed, without prejudice to any party’s
position as to any issue or defense.
However, the Board is not able to accept all portions of the
Stipulation. Among other matters, the Board is asked to impose
conditions upon Petitioner in a manner which is parallel to the
imposition of conditions when a variance request is granted.
While it is apparent the the Board has authority to impose
conditions when a variance is granted pursuant to Section 36 of
the Act, it is not apparent that the Board has authority to
impose conditions where, as here, a variance petition is
dismissed. To the extent that the parties may wish to bind
themselves in such agreement as they have here presented, it is
therefore necessary that they do absent the Board’s involvement.
As a general matter, the Board has held that stipulations
and settlement agreements have only limited propriety in variance
proceedings, being appropriate only to the extent that they may
serve to convey to the Board those facts upon which the parties
find agreement (e.g., Rowe Foundry
& Machine Company v. IEPA, PCB
81—49, 51 PCB 89). Conversely, stipulations to issues which are
the sole province of the trier of fact (the Board) are not
appropriate (e.g., Olin Corporation v. IEPA, PCB 81—117, 45 PC~3
415). Such issues include findThgs of arbitrary and unreasonable
hardship (Id.) and, as is the case here, findings of whether
Board rules are applicable to the particular circumstances faced
by a petitioner (See Container Corporation of America v. IEPA,
PCB 87—183, Interim Order, June 2, 1988).
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
9 6—166
—7—
ORDER
This matter is dismissed.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif that the above Opinion and Order was
adopted on the
________
day of
~
,
1989, by a
vote of
7—~2~
/
Illino
1
on Control Board
96—167