liLl~i~Pui~LU~iOi.
COL.i~OL
BcAM
August
20,
1987
CHICAGO, CENTRAL ANL
PACiFIC
RAILRUAID,
Petitioner,
V.
)
PCB 87—30
ILLINOIS ENVIRONMENTAL
PROT~CTIO1~AGENCY,
Respondent.
DJ~N1EL 1.
y~EE: :~‘N:.,
~EE:,
PFJTZA ~
ASSOC.
I~C.
~Pi-LAREE
ON
BEHALF CF PETITIONER; AND
CXAF~LE~V.
I~IKALIA~~
AFPE~REE~
C~. BLHALF
CF
RLSPONDENT
OPINION
AN
OF~LF. OF
~HE
ECARi~ (by
3.
Anderson):
This
matter
comes
before
the
Board
on
the
petition
for
variance
filed
by
the
Chicago
Central
and
Pacific
Railroad
(CCP)
on
March
9.
19t~
a~ amended
April
27,
1987.
CCP
seeks
a
three
year
variance
from
two
of
the
Board’s
special
waste
hauling
regulations:
~
Ill.
i~dm.
Code
809.401
wnich
requires
tnat
vehicles display non-removable identification
numbers and
markings
ana
35
111.
?tdr:.
Cooe 809.202 and 809.203 which requires
vehicle owners
to submit signed permit applications
to
the
Ayency,
includin~ various information
(such
as
license
plat.e
number,
make,
model,
year
description and identification number)
for each vehicle
to
be
used ~to transport
special waste.
CCP does
not propose
to come into compliance with these existing rules
during
the
term
of
the variance, but instead intends
to develop
a
regulatory proposal change
to make
the rules more “railroad-
compatible”.
On
I’~ay 26,
1987,
the Illinois Environmental
Protection Agency
(Agency)
filed
a Recommendation that variance
be denied
on
tne bases
that CCP had failed
to prove existence
of
an arbitrary
or unreasonable hardship and had failed
to file an
acceptable
compliance
plan;
COP filed
a response thereto on June
12,
1987.
Hearing was held
on July
1.
1987,
at which
some members
of
the public were
in attendance.
Testimony on CCP’s
behalf was
presented
by Kevin King,
ramp manager of CCP’s Cicero facility,
and testimony
on the Agency’s behalf was presented
by Harry
Cnappel, manager
of the Compliance
Section of the Agency’s
Division of Land Pollution Control.
The only post—hearing briet
80— 325
submitted was
tnat
filed
by
the Agency
on July
31
in wnich
the
Agency maintained
its position that variance should
be denied.
The Cnicagu, Central
and
Pacific
Railroad operates
approximately
766 miles
of Class
III
and
IV railroad trackage
between Chicago,
lL.
to Omaha,
NL.
and Sioux City,
IA..
This
rail carrier employs approximately 800 people and has Illinois
operations extending from Chicago,
iL.
to East Dubuque,
IL..
It’s primary business
is
to hau2
shippers’
commodities
as both
common and contract carrier
in
aná through
the State of Illinois.
COP does
not presently
transport special waste,
a service
which
it
would
like
to
provide
for
customers.
CC?
presently
has
three Illinois trailer
ramp facilities which could dispatch
or
receive special waste
loads.
These
are
located
in
Cicero,
RocKford and Ereeport.
On January
5,
1987,
CCP filed
an
application
for
a special waste hauler
permit,
along with
a
request
for waiver
of
the permit requirements for railroad
trailers.
On January
22,
1967,
the Agency denied the application
advising CC? that
it should petition the Board
for
a variance.
CC? asserts
tnat
the transportation
of hazardous waste would
be
performed
in packages such
as
55 gallon drums,
85 gallon
overpack~ or
oz:~cr ap~rc~ria:eLC
authorized
containers
approved
for
the safe
transportation
of hazardous materials.
Normal
quantities
loaded woula
be
approximately
~0 drums
for
a single—
stacked
load
or
120 drums
for
a double—stacked load per
trailer.
No
loading would be anticipated
beyond the safe
axle
load
limits
or highway safety limits prevalent
in the State
of
I11 incis
The
anticija:ed o.:eration
would
be
for shippers
to access
“free—running”
empty
40
to
48 foot railroad trailers at
the
railroad ramps
in
illinois.
These trailers would
then
be
checkec..
out
of
the railroad ramp
and driven
to the generator’s loading
location.
~nce loaó~d and blocked
and braced,
they would
be
again driven back
to
the railroad ramp where
they would
be loaded
on
a railroad flatcar
and transported via rail
out
of
state
for
proper disposal,
treatment,
incineration or recycling.
COP asserts that the existing
requirements
for
identification
and placarding
of trailers imposes
a unique burden
on
rail
carriers.
CCP asserts
that,
in contrast
to regional
motor carriers,
which may own and operate
a limited fleet
of
trucks,
CC? utilizes tne
services
of
a multitude
of trailers
which
it does not own or
lease
(as that term
is commonly
understood).
Rather,
as CCP explained
in
its petition,
the
rail
industry operates
its trailer fleets under
a pooling arrangement
in which
over
500 owners allow
tt~eir trailers to randomly run
across
the
country.
These
are
utilized
for
loading
at
the
same
location
wriere
they
were previously unloaded.
The
owner
earns
a
daily
per diem from the
carrier harboring
the trailer
on his line
80—326
either
a~ a-.
“ec~:~
“
a ‘load”.
~hc A~er’~cy,by ~
of
interrogatories,
requested CCP
to provide various information
concerning
tne economics
of
its operation.
CC? explains
that:
“its
typical
charges
for
“ordinary~
cargo
are
between
$0.75~
to
$l.Ou
per
highway
mile
waile
charges
for
transportation
of
special
waste
range
would
range
between
$1.75
to
$2.50
per
highway
mile.
CCP
“would
be
able
to
net
(sic)
between
$1.00
to
$1.50
per
highway
mile.
Out
of
this
difference
(CCP)
would have
to discount
or
give
an
incentive
to
the
shipper
to
acquire
the
business,
handle
additional
manifest
paper
work,
assist
the
shipper
in
the proper
blocking and bracing methods,
mechanically
inspect
the
trailers
before
being
dispatched
and
upon return to
the railyard,
provide
pickup
and delivery
service,
obtain
and administer
tne
succested
placarding
procedures
and
various
other quality
assurance programs
to properly manage
the risk while
the trailers are
in his possession.”
CC? does
not consider
it economically feasible
to reserve
sone trailers exclusivey
for
special waste hauling.
Less than
1
of
the trailers which come
into
its control sit unloaded
and
iole,
as
tne pe~ dies. charge
is
collectable
by
the owner whetner
the trailer
is idle
or
not:
the industry average charge
is
approximately $15.00 per day
for
a standard
45
ft. closed van
trailer.
Moreover,
to shuttle
an empty trailer devoted
to
special waste
hauling
between
CCP’s
three
ramp facilities
could
cost between $100
to $250
(one way)
depending on the length
of
haul
to
or
froE.
trie
ramp location.
CCP hac initially asserted
that
the free—running
nature
of
the estimated 174,123 trailers currently
in use
in the industry
makes
them impossible
to permit on
an individual
basis,
as
any
one
trailer
way
not show up
in the same location twice.
Although
this
record
is somewhat unclear,
it would appear
that CC? may
have somewhat modified
its position between the time
of the
filing
of COP’s petitions
and the date
of hearing
as
a result
of
discussions with the Agency.
At hearing,
the parties stipulated
that COP’s variance request was narrowed
to two matters:
a
request to placard
the trailer with
removable or strippable
insignia
rather
than the
“removable
only
by destruction” placard
required by Section
809.401,
arid a request
that CC? be deemed
an
“authorized representative”
of
the owners
of all trailers,
for
purposes
of Section 809.203,
so that only CCP’s signature would
be required
on permit applications.
At hearing,
the primary
focus was the nature of
the
agreement between CC? and
trailer owners.
Any trailers which
would
be utilized by CCP for
the origination of special waste
loads
woulo
be governed
by
the standard “Trailer/Container
80—32 7
interchange .i~greement”
(ret.
Lx.
1)
executed between CC? and
other
rail companies;
while trailers
not governed
by such
agreements
exit
and
enter COP’s
yards.
CC? provides only
a
“bridging
service”
from one carrier
to another
(R.
27—26).
The
boaro
cannot relate
wizn
specificity
tue entirety
of
the terms
of
this agreement,
as
it incorporates documents which were not
entered into
this
record:
a transportation service
(lntermodal)
agreement which appears
to be another standard agreement executed
between
rail carriers,
and tue TOFC/CCFC
(sic) Container
and
Trailer Interchange Rules published by the Mechanical Division
of
the Association
of American Railroads.
On
its face,
the
interchange agreement basically allocates
the liability
for sucr~
things
as loss,
damace
or repair
between CCP and the trailer
owner
as the
trailer changes hands.
it
acoesra
to
be COP’s position
that compliance with
the
non-removable placarding requirement would
require that each
specral wa~:eb~army
trailer
have
tue appropriate
identifying
marks painted
on by use
of
a stencil.
CCP’s Mr. King estimated
that
son~e 4u
of
tue trailers that CC? might
use are painted
(K.28).
COP’s position appears
to be that damage
to the paint
which
would
liKely
be
caused wnen COP removed
the stencilled
special waste
insignia would
be its responsibility
under
the
intercnance acraerr~:.
~r.
Kmnc also testified
that use
of
paint-rernovinc solvents would
require more employee time and
closer supervmsion
to minimize health
and accident risks
than
would
use
of more easily removable adhesive strips or placards.
i~r. King
noted
that self-adhesive placards are currently
used
to
comply with U.S.
Department
of
Transportation regulations
for the
placarding
cf
dangerous
and
hazardous
materials.
~hile
the Acency does not dispute
the fact that adhesive
placarás way
be
easier
to
remove,
it dismisses COP’s assertions
that
to supply extra supervisors
to prevent accidents during
solvent
use
is
unreasonably burdensome.
The Agency
is greatly
concerned about
the potential misuse
of
removable placards.
It
states
in
paragrapn
15
of
its
Recommendation
that:
The Petitioner’s proposal
to use removable placards
rather
than
non—removable
insignia
poses
serious
problems.
After
a
load
is
received,
the
placard
can
easily
be
removed,
leaving
no
indication
that
the
trailer
contains
special
waste.
As
citizens
and
law enforcement
officials
are
often tipped off
to
the
presence
of
special
waste
by
the
required
marking
and
decal
on
a
trailer,
the
use
of
an
easily
removable
insignia
grants
the
transporter
far
greater
freedom
to
improperly
dispose
of
its
waste.
In
addition,
a
hauler
could
use
the
placard,
tuen
freely
transfer
it
to
another
unlicensed
hauler,
whereas
the
non-removable decal
cannot
be
transferred
once
affixed
to
a
vehicle.
80—3 28
This
tureat
of
transferability
will
create
confusion
and
uncertainty
among
generators
and
waste
disposal
site
operators~ who
by
law
may
deliver
waste
to
or
receive
waste
from
only
licensed haulers.
The possibility
even arises that
a
hauler’s
employees
could
borrow
the
removable
placard
for
tneir
own
use
and
then
replace
it
before
its
absence
is
discovered.
Were
a non-
removable decal
to
be improperly
used,
it could
not
be
detached
from
the
unauthorized
vehicle
for
reuse.
Its absence would
be noted
and the improper
use
thereby
detected.
Finally,
to
allow
the
rail
industry to use removable
rather than non—removable
insignia
will
result
in
all
haulers
requesting
tneir
use.
This will
serve
to spread the problems
discussed above throughout
the entire special waste
hauling industry.
Concerning
the issue
of
the signature
of owner
requirement,
the owner certification currently required by
the Agency reads
as
follo~’s: “1,
tue
undersigned~ certify
triat the information
contained herein
is
true and complete and that the removal,
trar.spor:mrt; ano disposal,
storage
or
treatment
of special waste
will comply with
all
recuirements
to Title
35, Section 809.202.”
CCP
points
to paragraph
5 of tue interchange agreement,
which provides that:
“Railroad,
while
in
.possession
of
interchanged
containers,
releases
and
agrees
to defend
and hold
harmless
the
Owner
against
and
from
any
and
all
loss,
damage,
liability,
cost,
or expenses suffered
or
incurred
by
the
Owner
arising
out
of
or
connected
with
injuries
to
or death
of any persons
arising
cut.
of
the
Railroad’s
use,
operation,
maintenance,
or possession
of
such containers.”
it
is COP’s position that
since CC? as operating railroad
signs the permit certification,
since CCP would
be controlling
the trailer’s loadmng
and
its designation
as carrier
for
a
particular waste
load,
and since
CCP would
indemnify
the owner
for damages
as provided
in paragraph
5
of
the indemnification
agreement,
that
the owner’s
signature
in unnecessary.
At the
very least, CCP argues, CC? should
be deemed the owner’s
authorized representative
for purposes
of signature.
This issue was addressed
at hearing
by the Agency’s Mr.
Chappel,
as well
as
being more fully addressed
by the Agency’s
post-nearing
brief.
Mr.
Chappel explained that, while
Part
809
does not define the term “authorized representative”,
that the
Agency
interprets
the term consistent with
its
usage
in other
(unspecified) environmental
regulations.
This requires the
80—329
owner,
in
wrmtin~. to aesignate
an indiviaual
to sign permit
documents
in
its behalf,
such individual
to be
1) for
a
corporation.
a person at the vice—president
level,
2)
for
a
partnershmp.
one
of
the partners,
and
3)
for a municipality,
one
of
the local
ofticials
(R.
4o—47).
Tne Agency also argues
that the Interchange Agreements
as
applied
to proposed special waste hauling,
is
insufficient
to
support the position urged
by
COP.
The Agency notes
that the
Interchange Agreement nowhere mentions that the vehicles might
be
used
to haul eitner
nazardous
or
non—hazardous waste.
Additionally,
the paragraph
5 indemnification
is
by its terms
limited
to “injuries
to
or
death
of any persons”
it does not
speak
to damages
to property.
The Agency asserts
that t~waive
signature
of the owner,
thereby failing
to require
an
“informed
consent”
to special waste hauling,
could
have
detrimental effects
on
botn
the owner
and the environment.
At hearing,
the Agency posited
the occurence of an accident
in which
a
tram
derails, releasing chemical wastes into
a creek
with resulting
damace
to downstream property
(R.
33—34).
The
Agency sucqests tuat
tue trailer
owner
might then be
subject
to
“potentially
ruinous superfund type
liability
for
the property
damage.
Tne Acency notes
that the Illinois Environmental
Protection Act
(Act)
holds
the owner
of
a “facility”
liable
for
costs incurred b~
tue
State
in
responaing
to
a release
or
threatened
release
of
a hazardous substance
from that “facility”.
Ill.
Rev.
Stat.
Par. l9~ Supp.,
oh.
111
1/2,
par.
1022.2(i))
The definition
of “facility”
is exceptionally broad
and would
possibly include
a trailer.
ill.
Rev.
Stat.
1986 Supp.,ch.
111
1/2,
par.
l022.2(b)(l).
On
the otner
hand,
tue Agency argues,
the state’s efforts
to
recover clean-up costs
could
be hampered
in the above situation,
if owners
are not specifically
informed of their exposure
to
liability.
The Agency notes,
by way of example,
that Section
22.2(j)(1)(c)
of
the Act contains
a “third—party” defense
to
the
cost—recovery liability discussed above.
Ill.
Rev. Stat.
1986
Supp.
ch.
111
1/2 par.
l022.2(J)(l)(c)
.
If the owner
of the
vehicle
is not informed of
the vehicle use
in special waste
hauling,
this defense becomes more plausible.
The Agency further disputes CCP’s contention
that the
requirement
to register
a large
fleet
of trailers
is an unusual
burden upon
the railroad industry.
It states that large trucking
companies register their
entire fleet every
year,
remarking that
the same
fee
is charged
for registration
of any number
of
vehicles;
the Agency observes that
the Pacific
Interrnountain
Express Co. registers over
20,000 vehicles annually.
The Agency
further believes
that little administrative burden would
be
imposed
by requiring owner’s signatures
on permit applications,
80—330
given
tue tact
that COP and the owners enter
into signed
Interchange Agreements.
The Agency
suggests that:
Botu
documents
would
easily
fit
within
the same
6
1/2
x
11 envelope.
If the owner
is willing
to have
its
trailers
used
for
special
waste
hauling,
signature
of
the permit would quickly
occur
and
no
delay
in
the
processing
of
the
permit
or
the
Agreement
would
arise.
In
such
case,
no
hardship
at all would
occur.
The Board
finds
that COP has
failed
to prove that denial
of
variance would impose
an arbitrary or unreasonable hardship,
and
variance will
be denied.
Tue primary deficiency
in this case
is
COP’s failure
to produce
an adequate
compliance plan.
Variances
are normally granted
to allow
a source time
to
come
into
compliance with
rules
as written.
It
is true that
in some
instances persuns
have
tiled petitions
for variance
simultaneously with petitions for
rule change,
the petition
for
rule cnange beinc
the “compliance plan”
in the variance
proceeding.
The Board
has,
on some occasions,
granted variance
relief
of
tuis
type.
In mis
casu OC~ncr
not
filed
a petition
for
rule change,
but has
stated only
that
it intends
to do so.
The Board has
previously ucla tnat mere
intention
to file
a petition
for site
specific rule change
is
an insufficient compliance plan.
See,
e.g.
Schrock
v.
ILPA,
P05 66-205,
March
5,
1967
and
cases
cited
therein on
p.
8.
Moreover,
the facts which have been presented
in
this
specific case would not support grant
of variance, even
if COP
had
filea
a petition
for rule change seeking
relief substantially
similar
to that sought
in this variance.
COP has not adequately
responded
to the Agency’s concerns regarding use
of
removable
placards.
‘~nileit
is
not inconceivable
that CCP could develop
a
factual record
to,
for example, demonstrate that
a specific
“inventory control”/employee supervision system to prevent misuse
of placards would
serve
to accomplish
the same ends as
the
permanent placard
rule.
Not only has CC? failed
to do
so here,
CCP has failed
to demonstrate why
it would
be necessary
to remove
a permanent placard once
a special waste load has been
removed
from
a trailer, since
it
is possible that any given trailer would
again
be
loaded with special waste, given
all trailers’
general
pattern
of
random movement.
Of
even greater concern, however,
is
the record developed
here concerning trailer owner’s consent
to and liability
for
hauling
of special waste
in tneir
trailers.
CC? has again failed
to
respond
to
Agency
concerns
in
this regard,
concerns which
are
snared
by the board.
The Board agrees that
its existing Part 809
special waste hauling regulations did not specifically address
80—331
rail
oarricye at
special waste
in trailers,
ano tue Opinion
adopting
those regulations did not
reflect
that
the
rail industry
nad
introduced
any concerns
it may nQve
flea
into
the record
of
the regulatory proceeding.
See,
In The flatter
of:
Special haste
hauling Regulations,
h7t—l.~, Opinion
and Order
of March
15,
1979.
However,
it
is equally
clear
to the Board that the
existing lnterchange Agreement ãiã not specifically address
such
carriage either,
either
in
terms of consent
to such carriage
or
allocation
of
liability
for environmental accidents.
~hi1e
it
is
possible that
the AAR Rules, which are incorporated
into the
Interchance Agreement but which were not provided
to
the Board,
provide
for
this,
the Board
tends
to
be doubtful
that they do on
the
basis
of
this record.
Given
the potential magnitude
of
the
environmental
risks
and liability issues here involved,
as well
as
the plain language
of
tue documents presented
to the Board,
arguments here presented
that CCP should
be deemed
to
be an
autnorized representative
of
other
rail
carriers for
these
purposes
are uupersuasive.*
COP mould
riot construe denial
of this variance as
precluding
mt from initiating
a petition for
rule change
if
it
continues
to o~lievetuat
relief
tot
rail
carriers
is necessary;
the Act specifically
contemplates regulatory adjustment where
requirements are demonstrated
to nave unintended
and
disproportionate effects
on one industry as opposed
to another.
in
so stating, nowever,
tue Board
in
no way
intends
to imply
tnat
regulatory
relief would
be automatically granted without an
adequate su~porming record.
In
tue event
that COP determines
to
institute future
proceedings concerning
this subject matter, COP would
be advised
to address
the concerns expressed
in
this Opinion.
Additionally,
it woulã
be prudent
to address
the issue
of whether
COP qualifies
for
any of
tue exemptions
contained
in Section 809.211,
and
especially
809.211(g),
as well
as the inter—relationship between
Fart
609 and
the Board’s
ROKA regulations codified
at
35
Ill.
Adm. Code Part
700
et
seq.
Again,
for
all
of
the foregoing reasons, variance from 35
Ill.
Adrr,
Code 809,203
and 809.401
is hereby denied.
This Opinion constitutes
the Board’s
findings of fact and
conclusions
of law
in this matter.
*
~hile
existing Parts
807
and 509 do not define “authorized
representative”,
a definition which would codify
the Agency’s
interpretation
is pending
in
the Boaro’s R~4-17, Locket
I.)
proceeding.
80—332
Ok~.L~ah
The Chicago Central
and Pacific Railroad
(CC?)
is denied
variance
fror;~ 35
Ill.
Adu.
Code 509.203
and
6U9.40l.
Section
41
of the Environmental Protection Act,
Ill.
Rev.
Stat,
1965
ch.
ill
1/2
par.
1041,
provides
for
appeal
of
final
Orders
of the Board within
35 days.
The Rules of
the Supreme
Court of Illinois establish filing requirements.
IT
IS
SO
ORDERED.
3.
~iarlin
concurs.
I, Coroth~ M.
Gunn,
Clerk
of
the Illinois Pollution Control
Board,
hereby certify
that the a
ye Opinion and Order was
adopted
on
tue
~
oay
of
______________,
1967,
by
a vote
of
~
.
Dorothy M.)~unn, Clerk
Illinois Pollution Control
Board
80—333