ILLINOIS POLLUTION CONTROL BOARD
3anuary 19,
1989
VINCENT
?t.
KOERS,
alone, and
)
in Conjunction with DANVILLE
)
CITIZENS FOR CONTROL OF HAZARDOUS
)
WASTE INJECTION,
)
Petitioners,
v.
)
PCB 88—163
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, and ~.LLIED—SIGNAL,
INC.,
Co—Respondents.
ORDER OF THE BOARD
(by
J.
Anderson):
This matter comes before
the Board upon receipt of an
October
13,
1988 ~4otion for Hearing
and Appeal
of Underground
Injection Control Permit,
No. UIC-~I—AC.
The motion and appeal
are brought by Petitioners Vincent A.
Koers
and the Danville
Citizens For Control
of Hazardous Waste Injection, who seek
modification of the
issued Underground Injection Control
(UIC)
permit
to include permit conditions not required by
the
Environmental Protection Agency (“Agency”).
On October
20,
1988,
this Board,
noting that the instant
appeal
is
in the nature
of
a third party action,
issued
an Order
requesting
the parties
to brief the issue whether such third
parties have standing
to challenge UIC permits and permit
conditions,
and
to inform the Board whether
this action is
frivolous
or duplicative of another proceeding as referenced
in
Section 40(b)
of the Environmental Protection
Act (Act),
Ill.
Rev.
Stat.
1987,
ch.
111 1/2,
par.
1040(b).
The parties were
given until November
15,
1988
to file their brief.
On October
28,
1988,
respondent Allied—Signal,
Inc.
(Allied)
filed
a Motion
to Dismiss
the petition, describing
its motion as
“an initial
response
to the Board’s October
20,
1988, Order”
(pg.
1).
On November
2,
1988,
the Agency filed
its Brief
in Response
to Board Order
of October
20,
1988.
On
the following day,
November
3,
1988,
this Board
issued
an Order
which,
inter
alia,
deferred decision on Allied’s motion pending appropriate
responses and extended the briefing schedule
from November
15
to
November
28.
The Board requested that
the briefs include “some
discussion of the third
party appeal issue
in relation
to the
Board’s mandate
to adopt rules
“identical
in substance”
to
USEPA’s RCRA and UIC rules and any inter—relationship between
~5—331
—2—
RCRA and
(JIC permits, and how it may relate
to
the history of
adoption and amendments to Section 40(b)
of the Act”
(pg.
1).
The Board’s Order went on
to specifically identify such previous
Board Opinions and Orders,
federal rulemakings
(Federal Register)
and Public Acts which appear
to be germane
to the
issue raised
by
the Board
(pg.
2).
Allied filed
its Memorandum
In Support of Allied—Signals’
Motion To Dismiss
on November
23,
1988.
Petitioners
filed their
Memorandum of Law on November
30,
1988.
Although Petitioners’
memorandum was received two days late,
it appeared
to have been
prepared and sent
to
the Board
on November
24,
1988.
In view of
the likely delaying effect of
the Thanksgiving holiday on mail
deliveries,
the Board will accept the Petitioner’s Memorandum of
Law as filed instanter.
The Agency filed no additional
brief
in response
to
the
Board’s November
3,
1988 Order.
Issues
Presented; Jurisdiction
A number of issues are
raised
or alluded
to by the
Petitioners
in their petition and by Allied
in its motion;
however,
the threshold
issue, whether
a third party appeal of
a
UIC permit
is authorized by law,
is dispositive of the Board’s
jurisdiction
to consider the remaining issues.
In their Memorandum of
Law,
Petitioners conclude that “tihe
term
‘RCRA permit’
as used
in the Illinois Act, Section 40(b)
is
not excluding UIC permits, but
in fact specifically
includes them
and all other forms of RCRA permitting,
as provided
in 40 CFR
124.19”
(Pet. Memo.,
5).
If this
is
SO!
this Board has
jurisdiction
to consider other facets of this case.
As Allied indicates
in
its Memorandum
In Support
of its
Motion
to Dismiss, prior to
the enactment of Section
40(b)
of the
Environmental Protection Act,
it was settled law that third
parties lacked any
right to appeal the issuance of permits under
the Act (Allied Memo.,
5, citing Landfill,
Inc.
v.
Illinois
Pollution Control Board,
74 Ill.2d 541,
387 N.C.2d 258
(1978)).
EfEective January
1,
1980,
Public Act 81—856 created subpart
(b)
of Section 40
to carve out an exception to this
rule as follows:
(b)
If the Agency grants
a permit
to develop
a
hazardous
waste
disposal
site,
a
third
party,
other
than
the
permit
applicant
or
Agency,
may petition
the Board
within
35 days
for
a
hearing
to contest
the
issuance
of
the
permit.
Unless the Board determines
that such
petition
is duplicitous
or
frivolous,
or
that
the
petitioner
is
so
located
as
to
not
be
affected
by the permitted
facility,
the Board
95—332
—3—
shall
hear the petition
in accordance with the
terms
of
subsection
(a)
of
this
Section
and
its procedural
rules governing denial appeals,
such
hearing
to
be
based
exclusively
on
the
record before
the Agency.
The burden
of proof
shall
be
on
the
petitioner.
The Agency
and
the
permit
applicant
shall
be
named
co—
respondents.
The provisions of this subsection do not
apply
to
the granting
of
permits
issued
for
the
disposal
or
utilization
of
sludge
from
publicly—owned sewage works.
This statutory provision was enacted,
as Allied notes, more than
five months prior
to
the adoption of the core federal
regulations
defining
the scope and outline
of the federal RCRA program
(Allied Memo.,
5).
As Allied also notes,
“orice
the federal
RCRA and UIC program regulations appeared,
the language of
Section 40(b) was changed
to its present
form, which restricts
third—party appeal rights
to appeals concerning
‘RCRA permits
for
hazardous waste disposal sites’.”
Allied Memo.,
6, citing
Illinois Public Act No.
82—320”
(sic*).
Specifically,
P.
A.
82—
380 amended Section 40(b)
by inserting “RCRA”
before “permit” and
by replacing the words
“to develop” with the word “for”
in the
first clause.
In addition,
as Allied
notes,
this Public Act also
added Section 39(d)
and
(e)
to
the Act (formerly,
Sections
39(c)
and
(d),
respectively) which separately and exclusively govern
the issuance of RCRA and UIC permits
(Allied Memo.,
6).
The
Board notes
that
P.
A.
82—380 also added Section ll(a)(3)
to the
Act, which makes specific
reference to the Safe Drinking Water
Act
(SDWA),
P.
L.
93—523,
as the basis
for the UIC program,
and
makes no fewer
than
a dozen other changes
in the Act establishing
the UIC and RCRA programs as separate distinctively constituted
and authorized programs under State
law, including distinct civil
penalties for violations
(e.g.,
Sections 1l(a)(6),
ll(a)(8),
11(b),
12(g),
l3(b)(l),
13(c),
13(d),
20(a)(4)—(9),
20(b),
22.4(a),
22.4(b),
42(b)(2)
and 42(b)(3)).
In its Brief,
the Agency takes
a less complex
approach to
Section 40,
but with the same results
as Allied, noting simply
that Petitioners
in this case do not fall within the class
afforded appeal rights 5y subsection
(a)
(since Petitioners
are
not “applicants”), subsection
(b)
(since
the permit
“was not a
RCRA permit, but
a UIC permit”
(emphasis
in original)),
subsection
(c)
(since this was not
a contested case under Section
39.3)
or subsection
(d)
(since this was
not an air pollution
*
It is clear that
Allied
intended to refer to P.A. 82—380, rather than 82—
320, in view of its reference to the original bill (SB 875), and its correct
citation to P.A. 82—380 on page 7.
95—333
—4—
control permit).
The Agency notes
that dismissal of this
proceeding does not
leave
the Petitioners without remedy
in view
of their
right
to institute an enforcement proceeding (Agency
Br., second page).
In view of the foregoing,
it
is difficult for the Board
to
disagree with Allied’s assertion that the General Assembly in
crafting
the amendments “clearly saw
a difference between the two
types of permits and drafted separate provisions
to deal with
each of them”
(Allied Memos.,
7—8).
If Section 40(b)
is to be
construed
as conferring third—party appeal rights
in UIC cases,
it must be founded upon some other statutory authority.
The
Board, as
a creature of statute,
cannot unilaterally, through its
regulations
or otherwise, expand
or contravene
the third—party
appeal rights conferred by the Act.
Hesseltine
v.
State Athletic
Commission 126 N.E.
2d
631,
6 Ill.
2d 129
(1955); Chemetco,
Inc.
v.
Illinois Pollution Control Board,
488 N.E.
2d
639,
140 Ill.
App 3d 283
(Fifth Dist.
1986);
Villaqe of Lombard
v.
Illinois
Pollution Control
Board, 363 N.E.
2d 814,
66 Ill.
2d 503
(1977);
and Illinois Power
Co.
v.
Illinois Pollution Control Board,
484
N.E.
2d
898,
137
Iii.
App.
3d
449 (appeal denied Fourth Dist.
1985).
Petitioners essentially contend
that
RCPA,
as
amended
by
the
Hazardous and Solid—Waste Amendments of 1984
(HSWA;
P.L.
94-580)
has been so altered
as
to render
the Landfill opinion
“inapplicable”
(Pet.
Memo.,
2)
and
to replace control of the UIC
program
in
RCRA
(Ibid,
3).
This result,
according
to
Petitioners, derives
in part
from
the fact that Section 3.29 of
the Illinois Act defines
the term “RCRA Permit”
as “those permits
provided
for
in the federal RCRA (sic)”
(Pet. Memo,,
3)*.
The
referenced HSWA amendments
to
RCRA,
Petitioners assert,
“that
have added UTO control
to RCRA jurisdiction, have had
the effect
of requiring combination of Section 39(d)
and
(e)
of the Illinois
Act”
(Pet. Memo.,
4).
Specifically,
the Petitioners
note:
1)
that RCR~.Section
3004(k),
which was added by HSWA,
includes injection wells within
the definition
of land disposal;
2)
land disposal
of hazardous
wastes
is subject
to
RCRA;
3)
Federal
regulations
under RCRA
include 40 CFR 124.19, which expressly authorizes
third—party
appeals of both RCRA
and UIC permits;
and
4)
other federal
*
For
the
record, Section 3.29 of the Act states as follows:
“~RA
PER~1IT”
means
a
permit
issued
by
the
Agency
pursuant to authorization received by the
Agency frcn
the
United
States
Envirom~ental
Protection
Agency
under
Subtitle
C
of
the
Resource
Conservation
and
Recovery
Act
of
1976,
(P.L.
94—580)
(I~RA)
and
which
meet
the
requir~ents
of
Section
3005
of
RCRA
and
of
this
Act.”
95—336
—5—
RCRA/HSWA regulations adopted
under RCRA/HSWA on December
1,
1987
(52 FR
45788—45799) make clear
that corrective action
requirements
for RCRA facilities apply equally
to hazardous waste
injection wells:
USEPA states that “(hiazardous waste injection
wells seeking UIC permits are simultaneously seeking RCRA
permits”
(Pet.
Memo.,
4—5, quoting USEPA at
52
Fed.
Reg.
45792—
45793).
For its part, Allied paints
a different picture of the
interrelationship between the RCRA and UIC programs at the
federal
level.
Allied first
notes
that State rule 35 Ill.
Adm.
Code 705.212(b)
is not “identical
in substance”
with its federal
counterpart,
40 CFR 124.19(a),
since the State
rule does not
contain
the federal provision giving third—parties appeal rights
in UIC permit decisions.
Allied contends that
in
this
regard the
State
rule need not be “identical
in
substance”
to
the
federal
rule
for
two
reasons.
First,
Sections
13(c)
and
22.4
do
not
require
adoption
of
regulations
identical
in
substance
to
all
federal ROPA and UIC regulations.
Since,
under
40 CFR 145.11(a)
and 271.14,
the
federal third party appeal provisions
of 40 CFR
124.19(a)
are
not
included
within
the
“core
set
of
UIC
and
RCRA
regulations
that
generally
must
be
included
in
State
regulations”
in
order
for
the
State
to
obtain
authorization
for
these
permit
programs,
it
is
not
necessary
for
the
State
to
adopt
the
federal
requirement
in
this regard.
Second,
Allied contends, even
if the
mandates of
Sections 13(c)
and 22.4 could be considered as
authority for adoption of the
federal
requirements, such general
authority must yield
to the express specific contrary provisions
of Section 40(b),
consistent with current case law (Allied memo.,
10—11, citing People ex.
rel.
Myers
v.
Pennsylvania
R.
R.
Co.,
19
Ill.
2d 122,
129,
166 N.E.2d 86
(1960)
and First Bank of Oak Park
v.
Avenue Bank and Trust Co.
of Oak Park,
605 F.2d 372
(7th Cir.
1979)
).
Allied
next
argues
that
the
so—called
“permit
by
rule”
conferred
by
operation
of
40
CFR
270.60(b)
and
35
Ill.
Adm.
Code
703.141(b)
upon
tJIC—permitted
injection
wells
does
not
amount
to
a
RCRA
permit.
Allied
acknowledges
that
hazardous
waste
injection
well
operators
are
subject
to
the
PCRA
permit
requirements enumerated
in 40 CFR 270.1(c)(1)(i)
and 35
Ill.
Adm.
Code 703.122(a).
However, Allied contends,
this approach was
undertaken by
tJSEPA
as
a means
to obviate the need
for
overlapping permits governing
a single regulated activity.
As
Allied sees
it,
to the extent that UIC permitting requirements
lacked RCRA—required provisions,
“the missing
RCRA
provisions
could be
imposed directly through the regulations without the
need
for separate RCRA permitting”
(Allied Memo.,
11—13).
The
permit by rule thus,
according to Allied,
“confers RCRA permit
status by operation of
the regulations;
it does not provide that
a UIC permit
in any sense
is
a RCRA permit”
(Allied Memo.,
14;
emphasis
in original).
ThT.~is particularly so,
Allied urges,
where, as here,
the UIC permit at issue specifically recites that
95—335
—6—
it does not confer RCRA permit status by rule
(Allied Memo.,
15—
16).
The Board
is persuaded that Sections 13(c)
and 22.4(a)
cannot be viewed as requiring the result
for which Petitioners
contend.
Under Petitioners’
view, changes
in federal laws and
regulations under HSWA require
a meaning which places the
mandates of these Sections at odds with
the specific language of
Section 40(b).
This
is not the case.
First, as Allied
and the Agency both noted,
Section 40(b)
addresses only “RCRA permits”.
It does
so solely in connection
with
a
special
and narrow exception to
the general rule that
third—party appeals of permit decisions
is not allowed.
There
is
no mention of UIC permits or of
the so—called “permit by rule”.
Second,
it
is clear
to this Board
that the “permit by rule”
is not, per Se,
a RCRA permit
at all,
but
is rather
a status,
an
administrative convenience by which,
as
Allied
contends,
multiple
overlapping
permit
requirements
can
be
avoided.
In
this
connection,
the Board
is mindful
of
the
consequences
of
a
contrary view:
specifically, what would
be the nature of
such
a
“permit
by
rule”?
Would
it
be
enforceable
under
Section
42(b)(2),
or
under
Section
42(b)(3),
which prescribes
a
substantially
higher
penalty?
Third,
were
the
“control”
of
UIC
permits
passed
to
RCRA,’HSWA
as
Petitioners
contend,
why
was
it
necessary
for
the
December
1,
1987
rulemaking,
upon
which
Petitioners
place
great
reliance,
to
specifically
and
separately
provide
for
UIC
facilities?
A
close
examination
of
the
language
quoted
by
Petitioners
discloses
that
USEPA’s
comments
were
taken
out
of
context
by
Petitioners.
Those
comments
were
made
in
response
to
suggestions
from
several
commenters
to
the
effect
that
RCRA/HSWA
Section
3004(a)
should
not apply at all
to permit—by—rule facilities
(e.g.,
permitted
Class
1
injection wells).
In rejecting
this position,
USEPA
notes that permits issued under
Section 3005(c)
“include those
for any facility conducting or planning
to conduct treatment,
storage or disposal of hazardous wastes”
and that none of the
adverse commenters had argued that Class
1 wells are “outside the
bounds of the activities described”
(52 Fed.
Reg.
45792).
USEPA
then states,
as Petitioners
note,
that “hazardous
waste injection
wells seeking
UIC permits are simultaneously seeking
P-CPA
permits”.
(52 Fed.
Reg.
45792—45793).
Viewed
in this context,
it
is clear
that USEPA
is addressing solely the applicability
of the
Section
3004(a)
requirements
to UIC wells.
That section, which
was added by HSWA,
requires the Administrator
of USEPA to
expeditiously amend
the standards
under Section 3004 regarding
corrective action required at facilities
for the treatment,
storage or disposal
of hazardous waste
so as “to require that
corrective action be taken beyond the facility boundary where
necessary
to protect human health and the environment...”
USEPA,
95—336
—7—
consistent with this mandate, thereupon proposed
and adopted the
regulations
of December
1,
1987.
At
52 Fed.
Peg.
45793,
USEPA
describes the UIC permit—by—rule device as follows:
“The
permit—by—rule
was
established
to
acknowledge
that
the
standards
already
established
under
the
Safe Drinking Water
Act
would constitute acceptable standards for RCRA
Section 3005(c)”.
The Board
finds
that
this description more nearly matches
the
interpretation of the permit-by—rule advanced by Allied than that
of Petitioners.
In addition, even
the rules
adopted
by USEPA on
December
1,
1987 distinguish between
a RCRA permit and a
P-CPA
permit—by—rule.
For
instance,
40 CFR 144.1(h)
states that
a
hazardous waste injection well’s interim status
terminates “upon
issuance
to
that
well
of
a
P-CPA
permit,
or
upon
the
well’s
receiving
a
RCRA
permit—by—rule
under
Section
270.60(b)
of
this
chapter”
(emphasis added).
Finally,
the Board observes that
Section 270.60(b) was amended at
that time
to accord permit—by—
rule status
to UIC permits issued after November
8,
1984 only
if
they comply with
40 CFR 264.101
(amended simultaneously
to
include
the “corrective action”
requirements mandated
by
RCRA/HSWA Section 3004(a))
and with 40 CFR 270.14(d).
This
suggests that
RCRA
permit—by—rule
status
is
conditional
upon
demonstrated equivalence with “regular”
P-CPA permits.
In sum,
while
a
P-CPA permit—by—rule is the
functional equivalent of
a
P-CPA
rule,
it
is
not
the
same
thing.
The
Board
thus
finds
that
it
is
not
necessary
to
read
into
the
federal
laws
or
regulations
such
an
overtaking of the UIC program by the
P-CPA program as
Petitioners
suggest.
One
last
point
which
the
Board
must
make
is
in
response
to
Petitioners’
repeated
assertions
to
the
effect
that
“federal
rules
will
prevail
in
any
conflict
between
federal
and
state
legislation”
(Pet.
Memo.,
5).
This
view
appears
to
fundamentally
misapprehend
the
relationship
between
federal
and
state
law
and
the
functions
of
this
Board
and
other
State
agencies.
Absent
state
statutory
authority,
it
is
not
the
function
of
state
agencies
to
enforce
and
implement
federal
law.
Were
it
otherwise,
there would
be no necessity for the Board
to undertake
expedited
rulemaking
under
either
Section
13(c)
or
22.4(a).
There would,
in
fact,
be
no
need
for
Sections
13(c)
and
22.4(a).
In view of the foregoing,
it
is clear
to this Board
that
Petitioners
are
not
entitled
as
a
matter
of
law
to
petition
the
Board
for
review
of
Allied’s
UIC
permit.
Accordingly,
the
Petition
for
Hearing and Appeal will
be dismissed.
95—337
—8—
ORDER
The Petition for Hearing and Appeal
in this matter
is
dismissed.
IT
IS SO ORDERED.
B.
Forcade concurred.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the above
Order was adopted on
the
J4~’2.
day of
______________,
1989,
by
a vote of
~
‘
Dorothy M. G~ñn,Clerk
Illinois Pollution Control
Board
95—338