ILLINOIS POLLUTION CONTROL BOARD
May 28, 1987
IN THE MATTER OF:
)
HAZARDOUS WASTE PROHIBITIONS
)
R86-9, DOCKET B
ORDER OF THE BOARD
(by 3D. Dumelle):
Docket R86—9 was established by Order of February 26, 1986,
to consider the implementation of rules pursuant to Section 3~(h)
of the Illinois Environmental Protection Act (Act) which
prohibits the deposit of all hazardous wastestreams
in a
permitted hazardous waste site commencing January
1,
1987,
“unless specific authorization” is obtained from the Illinois
Environmental Protection Agency (Agency)
by the generator and the
disposal site owner and operator.
On June 11, 19~6,the Board
proposed rules to
implement that program.
Four days of hearings
were held
to consider that proposal on August 13 and September
3
through
5,
1986.
Several post—hearing comments were
filed.
At hearing the Board raised the possibility of proceeding
to
an emergency rulemaking prior
to adoption of
final, permanent
rules.
On October
2,
1986,
the Board adopted
a proposed
emergency rule for public comment.
However, on October
6,
1986,
the Board reconsidered that proposal and vacated the proposed
opinion and order.
On October
9, 1986,
the Board once again
proposed the adoption of emergency rules and opened a new docket,
R86—9,
Docket A,
for that purpose.
On October
23,
1986,
the Board adopted emergency rules
to
guide the implementation of Section 39(h) of the Act governing
the land disposal
of hazardous wastes, which was
to take effect
on January
1,
1987.
On October
31,
1986, Citizens For A Better
Environment (CBE) filed a Petition for Review in the Illinois
Appellate Court, First Judicial District, alleging that the Board
exceeded its statutory authority
in adopting those emergency
rules and seeking an order vacating the rules.
On January 26,
1987, following expedited briefing and oral
argument, the Appellate Court issued
a memorandum opinion and
order holding that the Board had exceeded
its authority and
vacating the emergency rules.
Citizens For A Better Environment,
et al
v.
IPCB,
et
al.
504 N.E.2d l6
(1st Dist.
1987).
The
Court did not,
however, reach the merits of the substantive
provisions.
On March 18, 1987,
a proposal was filed by the Illinois
Environmental Regulatory group which is
in large part based upon
the Board’s vacated emergency rules and
to a lesser extent upon
—2—
previous Board proposals.
There
are, however, some significant
changes which are proposed.
First,
IERG’s proposal deletes the
term “land disposal unit”
and replaces it with “hazardous waste
site.”
There are both advantages and disadvantages to such
change.
Second, IERG’s proposal would not allow the Agency to
require treatment of the wastes which would render the wastes
less hazardous but not non—hazardous.
The Board’s vacated rules
would have allowed the Agency that power.
This change has
substantial significance.
Third, IERG’s proposal would not
impose restrictions upon land treatment facilities,
surface
impoundments or waste piles, except for
those land treatment
facilities at which the wastes would remain after closure.
Under
the vacated
rules, such facilities would be subject to Section
39(h)
unless the owner or operator demonstrates that all wastes
and waste residues will either
be degraded, immobilized or
removed prior
to closure.
Again,
this
is a significant change.
Presently,
there are three basic proposals to consider.
First is the Board’s original June 11, 1986 proposal which was
intended,
as much as possible,
to be comprehensive, and which
included
a ratio test for determining economic reasonableness.
Second
is the Board’s October
23,
1986 Emergency Rule Order,
which represents a refinement of the original proposal, but which
was also less inclusive.
As stated
in the Board’s adopting
opinion at page four:
Obviously,
in proposing these emergency
rules,
the Agency,
the public,
the regulated
community
and
the
Board
would
all
be
best
served
if
a
complete
set
of
rules
could
be
adopted
which
the
Board
could
be
reasonably
confident
were
in
a
form which would
likely
be
adopted
as
final
rules.
Unfortunately,
that
is
not
possible
at
this
time.
The
implementation
of
Section
39(h)
is
complex
and
the
present
record
does
not
contain
sufficient
information
to
support
a
comprehensive
regulation.
Thus,
the
Board
will
simply
propose
those
rules
which
it
believes
are
adequately
supported
and
which
it
believes
~are
likely
to
remain
in
substantially the same form
in final rules.
Third
is IERG’s proposal which was described above.
Even the three proposals together leave several issues
unresolved.
Foremost
is the question of the proper standards to
determine economic reasonableness.
Is
a ratio test, as proposed
in the June 11,
1986 Order,
appropriate, and,
if so, what should
that ratio be?
Is there sufficient information available to
establish technical standards for certain classes of waste which
constitute either significant amounts of waste or a large number
78-325
—3—
of wastestream authorizations?
If
so,
what should those standards
be?
Such standards are allowed
for under both the June 11 and
IERG’s proposal, but specific standards are not set forth
in
either.
The Board also notes that the backdrop of the rules has
changed since the emergency rules were adopted.
The Agency now
has presumably issued
a large number
of authorizations and it
would be useful
for
the Board
to be apprised of how the Agency has
made its decisions and how well the process has been working.
Further, when the Board adopted the emergency rules, the Board was
constrained
to limit the scope of the rules to the implementation
of Section 39(h)
in that there was certainly no emergency with
respect
to the adoption of rules which go beyond
the mandate of
that section.
In adopting permanent
rules, however,
there is no
such constraint.
The Board
could, for example, adopt rules which
would bring classes
of facilities within the wastestream
authorization program which are not contemplated by Section
39(h).
However,
if the Board were to do so, such action would
almost certainly require the preparation of an economic impact
study
(EcIS)
which may well not be necessary if the rules simply
construe Section 39(h).
Due
to the significant delay which can
result from the preparation of an EcIS and the economic impact
hearings which follow its preparation,
it may be preferable
to
proceed on the implementation of Section 39(h)
and to wait for
another proceeding
to consider the expansion of the rules beyond
that section
if
it later
seems advisable.
However, the Board
is
interested
in comment on this issue.
Given the amount of new information which is available but
which is not in the present record and the number of unresolved
issues which remain
in this proceeding, the Board has determined
that it will not proceed
to first notice at this time.
Instead,
additional hearings are authorized to consider
IERG’s proposal as
well
as any other
issues which have been raised in this or prior
Board opinions and orders
in this matter.
The Board notes that
the four hearings which have already been held are part of this
docket and that the information contained in docket A should not
be repeated
in this docket.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
herek~ycertify that the above Order was adopted on
the
_______________
day of
_____________,
1987 by a vote
of
-
.
Dorothy M. ,Gunn,
Clerk
Illinois Pollution Control Board
78-326