ILLINOIS POLLUTION CONTROL BOARD
September
4,
1987
IN THE MATTER OF:
PRIOR CONDUCT CERTIFICATION
)
R81—18
FOR ~ASTE
DISPOSAL SITE PERSCNNEL:
35 ILL.
ADM.
CODE
745.
ADOPTED RULE
FINAL NOTICE
OPINION AND
ORDEi~
OF
nj:HL
BOARD
(by
R.C.
Flemal):
This docket was originally opened
by
the Board
on June
10,
1961,
to partially implement what was then Section
22(b)
of the
Environmental Protection Act (~Act”).
Section
22(b) was
subsequently amended and renumbered
by
P.A.
81-1484
and P.A.
83—
1362,
such that
it
is now found,
as
amended, at Section 22.5
of
the Act
(Ill.
Rev.
Stat.
1985,
ch.
111l/~, par.
1022.5).
In
its
entirety, Section
22.5 reads:
by
July
~,
1984,
the Board
shall
adopt standards
for
tiie certification of personnel
to operate refuse
cisposal facilities
or
sites.
Such standards shall
provide
for, but shall
not be limited
to,
an
evaluation
of the prospective
operator’s prior
experience
in
waste management
operations.
The Board
may provide
for denial
of certification
if
the
prospective operator
or any employee or otficer
of the
prospective operator has
a history
of
1.
repeated violations of federal,
State
or local
laws,
regulations,
standards,
or ordinances
regarding
the operation of
refuse disposal
facilities
or sites;
2.
conviction
in this
or
another
State
of any crime
which
is
a felony under
the
laws of this State
or
conviction
of
a felony
in
a
federal court;
or
3.
proof
of gross carelessness
or incompetence
in
handling,
storing, processing,
transporting
or
disposing of any hazardous waste.
The board wishes
to express
its appreciation
to
Mr.
Morton
Dorothy of the Board’s Scientific
and Technical Section for his
assistance
in crafting
this rule and
in
reviewing technical
matters associated with
it.
81—101
Since
its inception progress
in this rulemaking
has been
retarded by developments
in
those simultaneous proceedings which
involve modernization of the board’s
solid
and special waste
regulations,
including R80—20,
R82—21, R82—22, R84—3,
R84—17,
and
R84-22.
The principal difficulty
has
been the desire
of the
Illinois Environmental Protection Agency
(“Agency”),
industry,
and the Board
to not set
up limited—life definitions
and
procedures which would need
to be dismantled due
to developments
in the other
rulemakings.
In essence,
it nas been necessary
to
determine the directions
taken
in the other rulemakings before
the present matter could proceed
to
a logical and consistent
conclusion.
These uncertainties are,
for
the most part,
now
resolved,
and the board
accordingly
today adopts
a rule pursuant
to Section
22.5.
PROCEDURAL HISTOR~
Subsequent to initiation
of this docket,
the Board conducted
three public hearings and received six public comments.
Based
upon these,
the
Board
on Nay 13,
1982, proposed
a revised set of
rules, which were published at
6
Ill.
Reg.
6523,
June
4,
1982.
Following
the June 1962 publication,
two additional
merit
hearings were
held and eight additional public comments were
received.
Based
upon these,
the Board
on June 14,
1984,
again
revised and proposed
a set
of rules
for
first notice publication,
which appeared
at
8
111.
Reg.
9876,
June
29,
1984.
In the interval between adoption of the June 1982 and June
1984 proposals the Department
of Energy and Natural Resources
filed
a hearing copy of
its study of the “Economic Impact of
Proposed Regulation RSl—18:
Certification
of paste Disposal Site
Owners and Operators”,
Doc.
No.
83/04, January, l9~3 (hereinafter
1TEcIS’1).
Two additional
hearings,
as combined merit
and
EcIS
hearings, were held on July
16 and August
6,
1984.
Two
additional public comments were also received subsequent
to
adoption of
the June
1984 proposal.
Given
the still existing uncertainties
of interactions
between the proposed
rule and other pending
rules, principally
t~ioseunder
consideration in R84-17 and R64—22,
the Board again
postponed further
official action until
~1arch 19,
1987, when
it
adopted
the third
first notice proposal.
Publication occurred
at
11 Ill.
Reg.
7523.
It
is
this proposal which constitutes
the
substance of today’s adopted
rule.
The Board received three public comments during the first
notice period
of the current
rule.
The first was filed on April
30, 1987,
by c~asteManagement
of lllinois,
Inc.
(“WMI”)
as Public
Comment
#17.
The second was filed on May 20, 1987,
by
the
81—102
Illinois Steel Group
(“Steel Group”)
as Public Comment
~l91.
The
third was filed
on June
8,
1987,
by
the National Solid hastes
Management Association
(“NS~Th1A”) as Public Comment #20.
Each
of
the three comments expressed general support for
the regulations
as proposed
at
first
notice, but requested modification
of
particular
provisions.
In response
to these requests,
the Board
made several alterations
to
the first notice
(see following
discussion).
On June
15,
1987,
the Board adopted
the altered
rule
and submitted
it
to
the Joint Committee
on Administrative
Rules
(“JCAR”).
As
is discussed below,
on August 26,
1987, JCAR
objected
to
a portion of
the proposal,
and suggested other
actions.
in summary,
the
Board
has conducted seven hearings
and
received 20 public comments
in the instant matter.
Additionally7
it has
three
times gone
to
first notice with amended proposals.
OVERVIEW OF RULE
It
is
the Board’s
intent
in this proceeding,
as originally
enunciated when t~edocket was opened
(43
.PCB
569), only
to
prescribe standards for what
is essentially
a certitication that
an applicant’s prior criminal and administrative history
of
violations do not disqualify
the applicant from operating
a waste
disposal site
or
unit.
In short,
these
rules prescrioe
procedures
for acting upon
an applicant’s negative qualities.
These
rules
are not intended,
nor
have ever
been
intended,
to
establish standards
for defining positive qualities such as
technical
education,
training, and years
of work experience;
to
the degree
that certification of the latter type might be
desirable, promulgation
of
appropriate
rules will
have to await
a
proceeding devoted
to
that end.
The rule which the
Board adopts today retains
the same
thrust as prior proposals
in the R8l—l8 docket.
That thrust
is
the establishment
of procedures whereby the prior conduct of
waste disposal
site personnel can
be evaluated,
and provision for
the denial
of operating permits
in circumstances where prior
conduct certification has not been obtained,
has been denied,
or
has been cancelled
or
revoked.
However, me
rule
as adopted does depart
in particulars from
earlier proposed versions
of
the rule.
Many of
the departures
stem from
a change
in certification
of sites
to certification
of
individuals, which evolved out of the hearings and early public
1 The Steel Group comment was initally filed
on May
7,
1987,
and
docketed
as Public Comment
#18.
The same comment was refiled on
May 20 with an Affidavit of Service and separately docketed
as
Public Comment #19.
81—103
—
comments.
This change alone
nas necessitated
a change
in the
title
of
the Part
(and corresponding change
in the caption of the
proceeding) and
a reordering
of the various Subparts
of
the
rule.
Other
major
changes include
a provision
for automatic
cancellation
of certification at Section 745.124
and three
added
prohibitions
at Section
745.201.
The reasons
for these
and other
changes
are discussed
in the following
under
the appropriate
section heading.
History prior
to
that of the most
recent first
notice proposal
is also discussed where
this history
is important
to an understanding of the rule.
JCAR ACTION
JCAR considered
this matter
at
its August
26,
1987
meeting.
JCAR objected that the rules were not adopted within
tne time specified
in
the statute,
and
that the mitigating
factors discussed below
in connection with Section 745.141(b)
are
not
“clear and precise.”
The Board
has modified that Section
in
response
to
the objection,
as is discussed
below.
The Board has
also modified several
other
Sections pursuant
to discussions with
the JCAR staff.
This
is also discussed
below.
JCAR also recommended
that
the Board provide JCAR with
a
copy
of the Agency’s application form when
it
is promulgated.
Since
the Board
has
no mechanism
to monitor
rules
once
they are
filed and the Docket closed,
the Board will request that the
Agency provide
a copy
of
the form to JCAR.
DISCUSSION
OF RULE
Subpart A:
GENERAL PROVISIONS
Section 745.101
Scope
and Applicability
This Section
is
a general Section provided
for the aid
of
the
public
in using
the rules.
The operative provisions
are
found
in
the subsequent Sections cited
in the rule.
This Section identifies
at Section 745.101(a)
that
the Part
establishes procedures
for prior conduct certification of waste
disposal
site personnel.
It
is reflective of the emphasis this
rule places on prior conduct certification of
individuals.
Section 745.101(b)
identifies
that the chief operator
of
certain waste disposal sites,
as identified
in Subpart
E, must be
certified,
and
that failure
to have
a validly certified chief
operator
is grounds
for enforcement action and/or
for denial or
revocation of operating permits, pursuant
to Subpart
E.
Section 745.101(c)
identifies
that any person who does not
currently hold prior conduct certification due
to denial
of
certification
or due
to cancellation
or revocation
of
81—104
certification
is prohibited from owning
or operating
a waste
disposal
site,
or serving
as an officer
or director
of the owner
or operator
of
a waste disposal site,
or
serving as
an employee
at
a waste disposal
site.
More detailed discussion
of this
addition
is presented
below
under
the Subpart
E discussion.
Section 745.102
Definitions
Throughout this proceeding, the Agency and other
participants have stressed the need for uniformity between the
definitions
in this Part and the remainder
of Subtitle
G.
As
noted
above,
this has impeded
the Board’s
ability
to move
forward
with this proceeding,
in that definitions elsewhere within
Subtitle
G have been subject
to alteration
in concurrent
proceedings.
These definitions elsewhere within Subtitle
C have
now either been finalized or exist
in sufficiently certain form
so that this impediment
no longer exists.
Nevertheless, given the possibility of further flux
in
definitions, particularly
in
the on—going h84—l7 proceeding,
the
Board believes
it advisable,
and most likely
to provide
durability
to this Part,
that
the
terms specifically defined
in
the Part are limited
to those which
are unique
to or have special
meaning within the Part.
For definition
of
other terms,
reliance
is placed on the Act and the list
of definitions
found
at
35 Ill.
Adm.
Code 807.104.
The definition
of chief operator
has been expanded
from that
proposed
in the June
1984 version to
identify the chief operator
as
a “natural person,” defined
below,
and
to include within
the
definition such individual
or
individuals who,
from time
to time
and
in
the
regular course of business, assume the functions
of
chief operator during periods
of vacation,
accident,
illness,
or
the like.
Two practical consequences of thi~latter
addition
to
the definition are that
a given site or units may have more
than
one certified chief
operator, and that an
individual may need
certification
if
he assumes chief operator duties
in the absence
of the normal chief operator.
In defining “chief operator”,
the Board
has adopted
a
variant of the Agency’s definition of “operator”.
The word
“chief” has been added
to make
a distinction with other
individuals who may be characterized as operators.
In
researching this area,
the
Board has noted
that industry and
the
regulatory agencies
of other states refer
to
a spectrum of
personnel
as
“operators”,
in
the same way that personnel working
The Board
notes
that
use
of
the term “unit” herein
is
intended
to be consistent with the definition of the term found
at
807.104:
“any device, mechanism, equipment
or area used
for
storage, treatment
or disposal
of waste”.
81—105
—
tJ
in sewage treatment plants are referreã
to
as “operators”.
even
if
they may not have overall supervisory responsibilities.
The Board
has revised
the definition of
“chief operator”
pursuant
to discussions with
tne JCAR staff.
“Natural person”
has been defined
to mean
a human being, with
a specific exclusion
for artifical persons such as business or governmental
entities.
“Responsible charge” nas also been defined
by
expanding
on concepts present
in earlier versions
of the
definition
of
“chief operator.”
A person
is
in
“responsible
charge”
if
he or she
is normally present at
a site, directs the
day—to—day~ overall operation
of
the site
and
is
responsible
to
the operator
for ensuring
that operations are carried
out
in
compliance
with Board
rules.
Subsection
(c)
specifies
that,
for
the purposes
of this
Part,
waste disposal site
is defined as
a site
for which
a waste
disposal permit
is
required
by
35
Ill.
Adm.
Code:
Subtitle G.
The practical consequence of this definition
is
to provide
that
the mandatory certification provisions
and the pronibitions
of
the Part
(see Subpart
E)
are applicable
in all cases where
a
Subtitle G permit is also required.
These
are specified to
include RCRA disposal permits, UIC permits,
and general waste
site permits.
In
its June
1984 proposal the Board had specifically
included incinerators within the definition of “waste disposal
site”
as used
in
this Part.
Based on comments received
at
hearing,
incinerators, which are governed by
35 Ill. Acm.
Code:
Subtitle
B,
have been deleted from consideration under
Part 745
(see also discussion
for Section 745.181, herein).
NS~MA
has suggested that the term “waste storage”
used
in
the rule
“needs
to be clarified”
(PC ~20).
Unfortunately,
NSWMA
offered
no guidance
as
to
the nature
of the needed clarification
or suggestion.
The Board
does note that the rule adopted here
does
not actually contain
a definition
of waste storage, but
rather incorporates
the definition
as found elsewhere within the
Board’s waste disposal
regulations,
pursuant
to Section
745.102(a).
As
previously noted,
the entirety of
the Board’s
waste disposal
regulations, including
the definition
of waste
storage,
are currently
under review
in a separate Board
proceeding,
R84—17.
Any alteration
to the current definition
of
waste storage which might come about there would carry
over into
the instant matter.
Accordingly,
the Board
believes that
it
would be inappropriate
to propose
an alternative definition here.
Subpart
B
APPLICATION FOR CERTIFICATION
Section 745.121
Persons ~ho May Apply
This Section
specifies that any natural person may apply
for
prior conduct certification.
it was added
in response
to
concerns expressed
at hearing
that
it
would
be desirable
to allow
81—106
persons,
other
than those
for whom certification
is mandatory,
to
also obtain certification.
One such circumstance might
be the
desire of
an individual
to obtain prior conduct certification
in
anticipation of obtaining
the status
of chief operator
or
as
a
general qualification useful
in obtaining employment
in
the waste
disposal industry.
This provision additionally allows owners and
other
named permittees
to have certified staff
in employment
to
substitute
for
the normal chief operator during times of
illness,
accidents,
vacations,
ano the like.
Section 745.122
Application
This Section
specifies
the
information
that must
be included
in
an application,
items
(a)
and
(b)
serve
to identity the
applicant and
to identity
the
waste aisposal
sites
at which
the
applicant has had prior significant responsibility.
Item
(c)
identifies
the information which
is
to be used
in making
the
determinations required
in Section 22.5(1)—(3)
of
the Act;
this
information consists
of all final administrative
or
judicial
determinations against
the applicant.
Item
(d)
requires that
descriptions
of
any administrative
or
judicial actions pending
against
the applicant also
be
included
in the application.
Item
(e) mandates
inclusion
of
an affidavit attesting
to the truth
and
completeness of
the facts asserted
in the application.
In the June 1984 proposal
this Section, which was there
found
at Section 745.141, contained the additional requirement
that
the application specify whether
the applicant
intends
to
dispose of hazardous waste.
This requirement
is being deleted
consistent with amendments elsewhere
in
the Part which change
the
emphasis of the certification procedure from site—related
certification
to certification of
individuals.
An additional
reason
for
its deletion is that prior proposals envisioned
circumstances where
the Agency might grant certification for non—
hazardous waste disposal while simultaneously denying
it
for
hazardous waste áisposal.
This “two—level”
certification not
only presents serious problems
of workability,
but also implies
that prior
poor
conduct may be less
relevant
in some types
of
waste management operations than
in others.
The Board does
not
believe
that this
last premise
has general merit.
In
its first notice comment
(PC #18),
~*1I questioned several
provisions
of
this Section.
One was the requirement
of Section
745.122(b)
that
an application include
the location and nature
of
all waste disposal sites
owned
or
operated by the applicant
or
at
which
the applicant
has served
as chief operator.
WMI contends
that
inclusion
of
this provision
is
contrary to the intention
of
not
having the regulations address positive qualities associated
with waste disposal site operators.
The Board does
not believe
that
the application information
of necessity reflects on any
qualities associated
with waste disposal operators,
either
positively
or negatively.
Rather,
the intent of requiring the
specified data
is purely informational.
The Illinois
81—107
Environmental
protection Agency
(“Agency”),
as
the body
responsible
for certifying,
would need
to be apprised
of the
applicant’s background,
so
as
to be able
to make
the most
enlightened decision.
It seems reasonable
to
the Board
that this
background should
include
identification
of
the waste disposal
sites with which
the applicant has had prior association.
~MI
also questioned aspects
of administrative
or judicial
determinations which
are required as
application information
pursuant
to Section 745.122(c)
and
(d).
As
regards Section
745.122(c),
~MI
pointed out that only final determinations are
relevant
to the matter
of whether certification
is granted
or
denied.
The Board agreed with this point,
and accordingly
at
second
notice inserted
the word
“final” before “administrative
or
judicial determinations”
in Section 745.122(c).
~t1ialso suggested tnat Section
745.122(d)
be deleted.
Section 745.122(d) would
require applicants
to submit information
concerning
certain pending
administrative or
judicial
determinations.
WMI
contended that,
since
only final
determinations
are relevant
in
the decision
to grant
or deny
certification,
they also constitute
the only relevant inquiry.
The Board disagreed
in
its second
notice Opinion.
Pending
administrative
or judicial determinations serve
to identify the
applicant
to
the Agency, much
as does
the applicant’s prior
association with waste disposal sites.
~hile
it
is clear,
pursuant
to Subpart
C,
that
the Agency
is not
to consider pending
administrative or judicial actions as grounds
for denying
an
application,
this does not constitute sufficient reason
for
withholding
information on pending actions.
The
Board rearranged
Section 745.122
at second
notice.
This
was done
to improve
the organization
of the Section,
and did not
alter
the content.
Section 745.123
Duty
to Supplement
Pending Application
This Section requires that
an applicant supplement
any
pending
application within
30 days
of any change
in circumstances
which renders the original application for certification
inaccurate
or
incomplete
in any respect.
Section 745.124
Duty
to Provide Supplemental Information
Section 745.124(a)
requires
that
the information presented
in an original application
be updated
on an annual basis, or
earlier
if requested
by the Agency.
Such requests
by the Agency
are limited
to three
in any one—year period.
The June 1984
proposal
(there found
at Section
745.143) would
have
required
that the update occur semi—annually.
This was changed
in the
current proposal
to annually based
on comments
at hearing that
the shorter time period,
particularly given
the ability of
the
Agency to
request updates as needed, was unduly burdensome.
81—108
—9-
~N1 pointed
out
in
its first notice comment
(PC ~i8) that
the Agency snould
be
required to
show
cause when requesting
updates more often
than annually.
The Board agreed with
this
matter
in its second notice Opinion,
and accordingly
inserted the
phrase “and
for cause
show” after
“upon Agency request”
in
Section 745.124(a).
The Board modified
this Section pursuant
to discussions with
the JCAR staff.
The Board
has eliminated
the “for
cause shown”
language and replaced
it with more specific provisions
in Section
745.124(a)(l)
through
(3).
The Agency can request supplemental
information only
if
it nas a sufficient reason and must state
the
reason with the request.
A “sufficient reason”
includes
information
in the possession
of the Agency which indicates that
some
of
the information provided
in the original application has
changed.
The board
believes
that
this modification addresses
the
~MI comment,
as well
as that of JCAR.
Subsections
745.124(b)
through
(d) were added
to rectify two
perceived deficiencies
in the prior proposals.
One deficiency
is
that there was
no provision
for imposition
of
a penalty
for
failure
to comply with
the provisions
of Section 745.124(a).
Secondly, there was
no mechanism for cancellation
of
certification,
once granted, short of
a formal
revocation action
brought before the Board.
Cancellation might
be needed
for
individuals who
no longer wish
to be certified
for reasons
of
change
in nob,
retirement,
relocation outside
of
Illinois,
etc.;
these circumstances should not require
a formal revocation
action.
The
Board believes that both deficiencies are addressed
by
the new subsections.
Section 745.124(b) specifies that
the Agency shall
notify
any individual certified pursuant
to this Part
for failure
to
comply with the provisions of Section 745.124(a).
This notice
is
to
be given
no less than
45 days days after failure
to comply
with either
the annual
report
or
the supplemental
report
requested
by
the Agency.
The intent
is
to allow the certified
individual
a minimum
of 45 days
to prepare
and submit the
information required under Section 745.124(a)
before the
notification may be made.
Section 745.124(c)
specifies that continued
failure
to
comply with Section 745.124(a)
after
receipt of the Agency’s
notice of Section 745.124(b)
is grounds
for certification
to
be
cancelled.
Cancellation
is effective upon receipt
from the
Agency of
a notice specifying
that the person has continued
to
fail
to comply with
the requirements of Section 745.124(a)
and
has also failed
to respond
to
the notice of Section
745.124(b).
Receipt
of the notice shall
be presumed four days after mailing
in
the same manner
as service by mail
in
35
ill.
Adm.
Code
103.123(c).
This additional
notice, which actually effectuates
cancellation,
is
seemingly required
by due process consideration.
81—109
-10-
By
providing
for
automatic
cancellation,
Section
745.124(c)
provides
a penalty appropriate
to failure
to comply with Section
745.124(a).
Equally
important,
the
automatic
cancellation
provision provides the Agency with
a mechanism for updating
its
records of certified individuals other
than
through
a tedious
revocation proceeding.
The Agency might wish,
for example,
to
include
in
the notification of Section 745.124(b)
a statement
to
the effect that the person need not respond
if he/she
no longer
desires
to maintain prior conduct certification.
Thus,
failure
to respond would effect cancellation of
the certification.
The
fourth subsection,
Section 745.124(6),
specifies that an
individual
whose certification has been cancelled pursuant
to
Section 745.124(c)
may
reapply
for certification
at any
time
by
filing
a
new
application.
The Board has modified Section 745.124
and added Section
745.124(e) pursuant
to discussions with the JCAR staff.
This
is
to make
it clear
that the Agency’s
intial
request
for
supplemental information
is to be
in writing
and sent by
certified mail.
The board
has shortened the Section by
consolidating all
of the notice requirements into
a single
subsection.
Section 745.125.
Application Form
This Section identifies
that the Agency shall have
responsibility for prescribing
the form
in which
the information
required under
this Subpart shall
be submitted.
In the June 1984
proposal
(found there at Section 745.144)
this Section also
contained
a provision
requiring the Agency
to conform
the
application procedures
to
the Illinois Administrative Procedure
Act
(“APA”).
This provision was deleted
at first notice.
NSWMA
requested
that
this
provision be restored
(PC ~20).
Although the
Agency
is required
to comply with the APA,
the Board
is without
specific statutory authority
to require
it to do
so.
Section 745.126
Incomplete Applications
This Section
specifies that
an application
is not complete
until
all information required by this Part and related Agency
procedures
has been
filed
with
the Agency.
It further specifies
that
if the Agency fails
to notify an applicant within 45 days
that
the application
is
incomplete,
the application
is deemed
complete and deemed
to have been filed
on the date received by
the Agency.
Lastly,
it specifies that
an Agency determination
that
the application
is
incomplete equates
to
a denial
of
certification
for purposes
of review pursuant
to Section
40
of
the Act and
to 35
Ill. Adm. Code 105,
but not for purposes
of
Section 745.201.
The latter caveat was added
at second notice
in response
to
the Board’s own concern
that
a contrary reading might
be
81—110
-11-
possible.
~ne deemed-denied certification
is meant
to be only
for purposes of administrative
review, which
thus allows the
applicant
to appeal
tne Agency’s determination of
incompleteness.
A deemed—denied application
is not intendea
to
be denial
of certification
in
the context of
the prohibitions
of
Section 745.201.
Section 745.127
Registered
or Certified Mail
This Section specifies that applications are
to
be mailed by
registered
or
certifed mail,
or
to
be receipted
for
by
a person
designated by
the Agency.
Its
intent
is
to assure
a record
of
all filings.
Subpart
C
AGENCY ACTION
Section 745.141
Standards
for Denial
Section 745.141(a)
specifies the grounds upon which
the
Agency shall deny prior conduct certification.
Section
745.141(b) defines
the mitigating
factors
under which
the Agency
may issue certification to someone who would
not otherwise
be
entitled
to certification.
Section 745.141(a)
is
unchanged from the corresponding
provisions
of the June 1984 proposal
(there found
at Section
745.161),
other
than for slight rewording
to more closely conform
it
to similar language used
in Section
22.5
of the Act, and for
change
of
the connective between Section
745.141(a)(4)
and
(5)
from “and”
to
“or”.
The latter change was made
to make
it clear
that the Agency may deny certification based
on any one
of the
five grounds,
and that
it
is not necessary
that the Agency find
cause against
the applicant on each of
the five
grounãs.
Section 745.141(a)
specifies
five showings that must
be
demonstrated
in
the application.
These
are
that the applicant
has not repeatedly been found
to
be
in violation of
laws,
regulations,
or
ordinances governing
the operation
of waste
disposal sites;
has not been convicted of
a felony;
has not been
determined
to have shown
gross carelessness
or
incompetence
in
the handling,
storing, processing,
transporting or disposing
of
any waste; has not practiced
fraud or deceit
in obtaining
or
attempting
to obtain certification;
and has not failed
to timely
supplement
an application pursuant
to Section 745.123.
Section 745.141(b)
specifies the mitigating factors
to
be
considered
by the Agency
if
it
finds grounds
for denial
of
certification under subsection
(a).
Three
items are included:
the severity of
the misconduct;
how recently
the misconduct took
place;
and,
the degree of control exerted
by the applicant over
waste disposal operations
cited
for misconduct.
81—111
-12-
JCAR objected that the standards of Section 745.141(b) were
not clear and precise.
The Board has modified this Section
to
make
it
clear
that the standards
of this subsection
are
mitigating
factors which
the Agency
considers only after
a
determination that
the certification ought
to be denied under
the
standards
of subsection
(a).
Toward this end the Board has
changed
“may”
to “snall”
in subsection
(a).
The Board
nas also
moãified subsection
(b)
to make
it clear
that the Agency may,
as
a discretionary act,
issue
a certification based
on mitigating
factors, even though there are grounds for denial unaer
subsection
(a).
The main point
of this change
is
to avoid
the
interpretation,
which was possible under earlier versions
of this
rule,
that
the
factors
ot
suDsection
(b) are additional grounds
tor denial
to be considered
on an equal
footing with the factors
of subsection
(a).
~t its meeting JCAh itself accepted the
Board’s offer of
this change as meeting
the objection.
The Board appreciates the JCAR
staff’s concern that the
mitigating
factors may not be
as clear
and precise
as possible.
However, as
is noted above,
this matter has been exposed
to
numerous public hearings
and several public comment periods
without any suggestion
from the Agency
or
public that the
mitigating
factors might
be vague.
The only way the Board can
see
to
be more specific would
be
to attempt
to list all
of the
possible forms
of misconduct
and award points,
which would
be
added
to points based
on
time since
the misconduct and degree
of
control.
Mitigation would
be determined based
on the total
points.
At
the very least
this would
force
the proposal back to
first notice
to afford the Agency and the public an opportunity
to comment.
Further
delay would
be contrary
to
the intent of
Section
22.5 of
the Act.
The standards
of Section 745.141(a)
closely track
the
language
of Section
22.5 of
the Act,
but there
is nothing
in the
Act which requires mitigating factors
to
be considered.
If the
mitigating factors are held
to be
too vague,
it will mean that
the Agency will have
to deny certification under subsection
(a),
regardless of any mitigating factors.
The June
1984 proposal contained two additional provisions
in what
is here Section 745.141(b).
These were how directly the
misconduct
related
to disposal operations
of hazardous and/or
non—hazardous waste, and whether
the applicant intends
to dispose
of hazardous waste.
Both
of these provisions
have been deleted
consistent with elimination of “two—level”
certification,
as
discussed previously
(see Section 745.122 discussion).
Section 745.141(c)
is intended
to make
it clear
that the
burden of demonstrating good prior
conduct
rests with the
applicant.
Pursuant to discussions with JCAR,
the Board has
added
a reference
to Section 39(a)
of the Act, and
added
a
sentence
to specify
the quantum of proof
required.
Completion
of
the application form stating
that none
of the grounds
for denial
81—112
-13-
exist
is
a sufficient benonstra~ion in
the absence
of
information
to
the contrary.
The Agency could deny
the certification
if
it
had independent
information of misconduct.
However,
it
is not
necessary,
for example,
for
the applicant
to produce affidavits
from the police
in
all
53
States
to demonstrate
lack
of
misconduct.
Section 745.142
Final
Action
This Section specifies that
if
the Agency denies
a
certification application
based on any of the grounds identified
in Section 745.141,
it must provide
the applicant with
a detailed
written statement as
to the reasons why certification was
denied.
It further
specifies that all notices
of final
action
shall
be
by registered
or certified mail.
Section 745.143
Time Limits
This Section
specifies that
if the Agency fails
to
take
final action on
an application within
90 days of filing,
the
applicant may deem
that
certification
is granted
for one year
beginning
on the 91st day after
the application was filed.
At
the present
first
notice
the Board
requested comment
as
to whether
this
“default” provision
is
a necessary element of the
rule.
Although no comments were received regarding
the merits of
having
a default provision,
~MI
did question whether
the one—year
duration
of
the default provision was justified
(PC
ff18).
The Board
believes that
there
is justification
in placing
a
limitation
on the duration
of
a deemed—granted certification.
The whole purpose of having
a deemed—granted provision
is
to
provide protection
against failure
of
a permitting
or certifying
agency
to act timely on
an application.
Its purpose
is not
to
provide
an avenue
by which review might
be long
or permanently
circumvented.
The Board also finds support
for
a limited duration
of the
deemed—granted certification
in
the Act,
contrary
to hMI’s belief
elsewise
(PC #18).
Section
39.1(e) provides that failure
of the
Agency
to timely act
on
a permit allows that
“the applicant may
deem the application approved
as applied
for”
(emphasis added).
All permits have
a specified duration for which
the permit
is
to
be applicable.
None are permanent licenses.
Thus 39.1(e)
implicitly requires that the permit
be deemed issued for only
that specified
duration.
The Board also believes
that one year
is
a
suitable duration
for
a deem—granted certification.
In this context,
the Board
notes
that Section 745.124(a)
requires an annual supplement
of
the application information,
an aspect
of the rule
to which WMI
has not noted objection.
Annual
supplements would
therefore be
required even
of
an application which has been deemed granted.
81—113
-14-
It would thus seem fully reasonable
to have
the required
review
of
the deemed—granted application within one year
(plus ninety
days pursuant
to Section 745.143) of the original application
filing.
Section 745.144
~aiver
of Time Limits
This Section provides that
an applicant for certification
may waive
the requirement of the time within which
the Agency
must take final action on an application.
The JCAR staff recommended that JCAR object
to
the lack
of
procedures
for
waivers.
This
died
for
lack
of
a
motion.
Subpart D
APPEAL,
REVOCATION AND TRANSFERABILITY
Section 745.161
Appeal
of Certification Denial
This Section provides
that
an applicant
to whom
certification has been denied
by
the Agency may appeal the
Agency’s action
to the Board following
the procedures
of Section
40
of
the Act and 35
Ill. Adm. Code
105.
The portions
of the Act
and Board regulations cited are those pertaining
to permit
appeals,
and
it
is thereby
intended that certification appeals
be
governed by
the same
statutes,
regulations,
case
law,
and
precedents which govern permit appeals.
Section 745.162
Revocation
This Section provides
that any person may seek
revocation of
certification based
on any
of the grounds stated
in Section
745.141(a)
by filing
a complaint with the Boara pursuant
to Title
VIII of
the Act and
35
Ill.
Adm. Code
103.
The term “person”
is
used here
in
the broad context,
as defined
in the Act.
This
Section
is linked
to the discussion
of the JCAR
objection
to
the mitigating factors standards discussed above
under Section 745.141(b).
The Board has modified this Section
along
the same lines
in
response
to the staff discussions and
objection.
Specifically,
the Section has been modified
to
provide
that,
before revoking
a certification,
the Board will
consider the mitigating
factors of
Section 745.141(b).
Section 745.163
Duration and Transferability
This Section provides that all certifications granted other
than pursuant
to Section 745.143
shall
remain valid unless
revoked by Board action pursuant to Section 745.162
or cancelled
pursuant to Section 745.124.
It further provides that
certification is not transferable.
81—114
-15-
Subpart
E
PROhiBITIONS
Section
745.180
Applicability of
the Subpart
Section 745.180 iãentifies
that
the requirements
of Subpart
B do not apply
to waste treatment and storage
sites.
This
Section was found
at Section 745.101(c)
of
the June 1984 dratt.
Section 745.161
Chief Operator Requirements
This Section gathers provisions
founa
in several Sections
of
the previous June 1984
proposal.
It sets out the conditions
under which possession
of prior conduct certification
is
mandatory.
Prior conduction certification
is
required for that
single individual
who
is chief operator
of
a waste disposal
site.
The term “cnief operator”
is defined
in Section 745.102.
“waste disposal site”,
which
is also definea
in Section
745.102(c)
for the purposes of this Part,
is any site for which
a
waste disposal permit
is required by
35
Ill.
Adm.
Code: Subtitle
In
its
June
1964
version
the
Board
had
retained
an earlier
proposal
for
the
inclusion
of
incinerators
within
the
definition
of
waste
disposal
sites,
and
thereby
the
inclusion
of
incinerator
operators under
the mandatory prior
conduct certification
provision.
This provision
has been deleted
based
on the desire,
at this time,
to make prior
conduct certification mandatory only
for those portions
of
the waste disposal industry governed by
Subtitle G.
In versions prior
to the June
1984 version,
the Board
had
also considered
including requirements
that “owners”,
instead
of
or
in addition
to chief operators,
have mandatory prior conduct
certification.
Industry objected
to
the inclusion of
this
provision because
of
its complexity
as applied
to the potentially
multitudinous shareholders
in major corporations.
The EcIS also
identified
this provision
as imposing
a great
cost,
and
questioned
the benefits.
Additionally, the clear specification
in Section
22.5 that
“the Board
shall
adopt
standards
for the
certification of personnel
to operate refuse disposal facilities
or sites” seemingly excludes
a legislative intent
of having
certification apply
to other
than on—site operators.
The Board
has accordingly eliminated
this
requirement
at this time.
Ownership responsibility pursuant
to Section 745.161
is
therefore
restricted
to assuring that
a certified
operator
is
in
charge
of day
to day operations.
This notwithstanding,
there are
many Situations where
the owner
and chief operator are
the same
individual.
In these cases,
the owner would require
certification
by virtue
of also being
chief operator.
Similarly,
certification
is mandatory only for the “chief
operator”,
as defined
in Section 745.102.
This provision
is
meant to exclude
the need for certification of every individual
81—115
-16-
employed
at
a waste
disposal site
or
unit,
and rather
limits
mandatory certification to
just that
individual
or tnose
individuals who bear actual
responsibility for
site operations.
Section 745.181(b)
was added
at the first notice
of
the
present
rule
on
the recommendation
of ~d.1I(PC #16)
that the Part
provide clarification of several matters regarding chief operator
status.
These
are
that
the owner
or
other
named permittee
designate one or more individuals as chief operator(s);
that one
individual
may be chief operator of multiple waste disposal
units
located
at one site;
that one individual may not be chief
operator
at more
than one site;
and,
that
a certified chief
operator
need not
be present on-site during
all hours of
operation
as
long
as the chief operator retains responsioility
for
site operations.
Section 745.201
Prohibitions
This Section sets out the five basic prohibitions which flow
from the mandatory prior certification provision of Section
745.161.
These
are that
no person shall operate
a waste disposal
site unless the chief operator has prior conduct certification
(Section 745.201(a));
that
no
site
owner
or
other
named permittee
shall
cause
or allow operation of
a waste disposal site unless
the
site chief operator has prior
conduct certification
(Section
745.201(b));
that
no person shall own
or operate
a waste disposal
site
if
the person has had prior conduct certification deniea,
cancelled,
or
revoked and the prior conduct certification has not
been
reestablished (Section 745.201(c));
that
no person shall
serve
as
an officer
or director of the owner or operator
of waste
disposal
site
if
the person
has had prior
conduct certification
denied,
cancelled,
or revoked
and the prior conduct certification
has not been reestablished
(Section 745.201(d));
and that
no
person shall
serve as
an employee at
a waste disposal site
if the
person has had prior conduct certification denied,
cancelled,
or
revoked and
the prior
conduct certification has not been
reestablished (Section 745.201(e)).
The prohibitions of Section 745.201(a),
and 745.201(b)
are
unaltered
in concept from those
found
at Section 745.121(c)
of
the June
1984 proposal.
They have been recast
to emphasize that
the burden of demonstrating that prior conduct certification
exists lies with
the certified
individual
or
the owner
or other
named permittee(s).
The prohibitions
of Section 745.201(c),
(d),
and
(e)
were
added
to
the present rule.
The Board believes that
they may
serve as necessary deterrents
to
individuals continuing
to
exercise control
at waste disposal sites even though
those
individuals have failed
to
show good prior conduct as
demonstrated
by having been denied certification or having had
certification cancelled
or
revoked.
The Board believes that the
spirit,
as well as perhaps
the letter,
of Section
22.5
of the Act
81—116
—17—
would
be
violated
if
such
circumstances
were
to
occur,
and
therefore wishes
to provide
the best deterrent possible.
~MI requested
its
first notice comment
(PC
~i8) that Section
745.201(c)
be modified by deleting
reference to “owning” and
“owner”.
t,~MI contended
that these deletions would
be consistent
with
the view that certifications
should not be required for
owners of sites.
~MI
is correct
in
its understanding
that the
Board
does not
intend that owners be
required
to obtain prior
conduct certification.
The Board reached
this determination
based
on arguments related
to the costs and difficulties
associated
with
certifying both
large numbers
of
owners and
owners who are other
than
individuals,
and the view that
the
intent
of Section
22.5 seemingly excludes having certification
apply
to other
than on-site operators.
In
fact,
the rule does
not require that owners
be certified.
Rather,
the specific
reference
to owners
in Section 745.201(c)
goes to an entirely
different aspect of owner
involvement.
That aspect
is
the
prohibition against individuals continuing
to participate
in the
waste disposal business after
they have been denied prior
conduct
certification or while
they have had prior conduct certification
revoked
or cancelled.
The Board
believes
that this provision
is
consistent with the intent of Section
22.5
of having
individuals
who have demonstratively
poor conduct
records from actively
engaging
in waste management operations.
Accordingly,
to the
extent that
individuals who have failed the prior conduct
“test”
may subsequently seek
to become owners of waste disposal sites,
they would
be denied
that
ability pursuant
to the
rule
as
adopted.
This whole matter may be succinctly put by noting
that
owners
are not required
to take the prior
conduct
test.
However,
having taken
the test and been found deficient,
an
individual may
not continue involvement with waste disposal activities,
including ownership
of waste disposal sites.
NSWMA also requested that all
of Section 745.201(d)
be
deleted
based
on
the view that
it
is
too restrictive.
The Board
does not believe
that this prohibition
is
too restrictive.
The
Board believes
that
the spirit,
as well
as perhaps
the letter,
of
Section 22.5
of the Act would
be violated
if
the types
of
prohibitions
set forth
in
Section 745.201(6)
were absent.
The impetus
for adding Section 745.201(e)
came from the
public comment submitted by the Steel Group
(PC *19).
The Steel
Group noted
that
it has over the years attempted
to employ
the
disadvantaged,
released convicts,
or others who might
not qualify
for waste
site certification.
The Steel Group opines that they,
or other
large
industries, might
therefore hire or have
in their
employ
in
a position unrelated
to its waste operations “persons
who either were denied or would not qualify
for waste disposal
site chief operator certificate”.
81—117
—18—
~itn
the
sole
exception
that
the
individual
may
not
be
employed
as
a
waste
disposal
site
chief
operator,
the
Board
does
not
see
how
employing
a
individual
who
“would
not
qualify
for
waste
disposal
site
chief
operator
certificate”
presents
any
difficulty
pursuant
to
the
rule.
Such
an
individual
would
not
be
exposed
to the prior
conduct test even were he employed
at the
company’s waste disposal site
in other
than chief operator
capacity.
Similarly,
he would
not be
exposed to the prior
conduct test
if employed elsewhere within
a company.
The second part of the Steel Group’s concern did raise
a
question
of
apparent import.
That
is, should
an
individual who
has taken and
failed the prior conduct
test be denied employment
in facets
of
a company’s activities
unrelated
to
its waste
disposal operations?
As
the Board noted
in
its second notice
Opinion,
the Board
believes that
the answer
is
no.
The denial
should
be constrained
to
just the waste disposal activities,
and
any other reading would
be contrary
to
intent.
To clarify
this
matter
for the purpose
of the rule,
the Board modified the first
notice language
by deleting reference
to “employee”
in Section
745.201(d)
and adding
a new Section 745.201(e) which identifies
the prohibition peculiar
to being
a employee.
In the June
1984 proposal the prohibitions Section also
contained
a provision which identified certification
as falling
into two categories, one for non—hazardous waste disposal sites
only and
a second
for both
hazardous and non—hazardous waste
disposal sites.
The Section also specified
that the chief
operator be certified
to dispose of the type
of waste,
non—
hazardous
or
hazardous,
for which the site
is permitted.
These
provisions
are here deleted
consistent with deletion of
the
“two—
level” certification procedure throughout
the Part
(see
discussion, Section 745.122).
Section 745.202
Agency Denial
of haste Disposal Permit
This Section requires that the Agency deny any waste
disposal permits
required
by Subtitle G
to any owner
or other
named permit applicant,
unless the applicant demonstrates that
the applicant will not
be
in violation
of the prohibitions
of
Section 745.201.
Pursuant
to discussions with
the JCAR staff,
the Board has
added
a sentence addressing
the quantum of proof required,
similar
to Section 745.141(c)
discussed above.
It
is sufficient
if the operator completes the application form stating
that he
intends
to hire
a certified operator.
The Agency should deny the
permit
if the operator omits the statement,
or
if the Agency has
independent information that the operator does
not intend
to hire
a certified operator.
For example,
the Agency would be justified
in denying
renewal of
a site application
if
the operator
is
currently out of compliance with
the certified operator
requirement
for
other
than temporary
reasons
(Section 745.204).
81—118
—19—
In
the
June
1984
proposal
(there
found
at
Section
745.122)
this Section
also provided
that
the Agency could deny issuance of
any waste disposal permits
required under Subtitle C to any chief
operator who has not received certification or has had
certification revoked.
Since
the chief operator would
not hold
permits, other
than through dual capacity
as owner
or other
named
permittee,
this
provision has been deleted
as unnecessary.
Section 745.203
Revocation of haste Disposal Permit
This Section provides that
revocation
of any Subtitle G
permit may
be sought on the grounds
that the waste disposal site
is
in violation
of Section 745.201,
ana that revocation shall
be
initiated by filing
a complaint with the Board pursuant
to Title
VIII
of
the Act and
35 Ill. Adm.
Code
103.
Section
745.204
Defense
This Section provides that
a waste disposal site
or unit has
90 days following
termination of employment of
its certified
chief operator
or
revocation
or
cancellation
of its
chief
operator’s certification
in which
to employ
a replacement
certified chief operator.
In
the June
1984 proposal
(there found
at Section 745.124) this time period was
60 days.
However,
several comments at hearing
indicated that
this was
an unduly
tight time frame
in which
to identify
(and perhaps
hire)
a new
chief
operator candidate,
and for
the candidate
to actually
obtain certification.
At first notice
the Board specifically
requested additional comment
on the matter
of whether
the
increase to
90 was sufficient
to rectify
this perceived problem;
no comments were received.
Section 745.205
Effective Date
This Section specifies that the prohibitions
of this Subpart
shall become effective July
1,
1988.
It
is presumed
to provide
for sufficient
time during
which the Agency may develop
application and review procedures, applications may
be submitted
and reviewed,
and final
actions on
the applications may be
taken.
81—119
-20--
ORDER
The Clerk
of the Pollution Control
Board
is directed
to
submit the following adopted rule
to the Secretary of State
for
final
notice:
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
g:
CERTIFICATIONS
PART 745
PRiOR
CONDUCT
CERTIFICATION
SUBPART A:
GENERAL PROViSIONS
Scope
and Applicability
Definitions
SUBPART
B:
APPLICATION
FOR CERTIFICATION
Section
745.
121
745. 122
745.123
745. 124
745.
125
745.
126
745.
127
Persons Who May Apply
Application
Duty
to Supplement Pending Application
Duty
to Provide Supplemental Information
Application Form
Incomplete Applications
Registered
or Certified Mail
SUBPART
C:
AGENCY ACTION
Standards
for
Denial
Final
Action
Time Limits
Waiver
of Time Limits
SUBPART
B:
APPEAL,
REVOCATION AND TRANSFERABILITY
Appeal
of
Certification
Denial
Revocation
Duration
and
Transferability
Applicability
of
tne
Subpart
Chief
Operator
Requirements
Prohibitions
Agency Denial
of Waste Disposal Permit
Section
745. 101
745. 102
Section
745.
141
745.
142
745. 143
745.
144
Section
745.161
745.
162
745. 163
Section
745. 180
745.181
745. 201
745.202
SUBPART
E:
PROHIBITIONS
81—120
—21—
7;5.2U3
Revocation
of
Waste
Lisposal
Permit
745.204
Defense
745.205
Effective
Date
AUTHORITY:
Implementing
Sections
22.4(b)
and
22.5
and
authorized
by
Section
27
of
the
Environmental
Protection
Act
(111.
Rev.
Stat.
1985
ch.
1111/2,
pars.
1022.4(b),
1022.5
and
1027).
SOURCE:
Adopted
at
11
Ill.
Reg.
,
effective
SUBPART
A:
GENERAL
PROVISIONS
Section
745.101
Scope and Applicability
a)
This Part establishes procedures
for prior conduct
certification for personnel
of waste disposal sites.
b)
This Part requires the chief operator
of certain waste
disposal
sites, pursuant
to Subpart
E,
to obtain prior
conduct certification.
Otherwise,
permits for operation
of
the site may be denied
or revoked, and the owners
or
other named permittees,
as well
as
the chief operator,
are subject
to
an enforcement action for continued
operation without
a
certified operator, pursuant
to
Subpart
E.
c)
This
Part
also
prohibits
any
person
who
has
had prior
conduct certification denied, cancelled
or
revoked,
unless
the person has
a current valid prior conduct
certification, from owning
or operating
a waste disposal
site
or
serving
as
an officer
or
director
of the owner
or operator
of
a waste disposal site,
or
serving
as
an
employee at
a waste disposal site,
pursuant
to Subpart
E.
Section
745.102
Definitions
a)
Unless otherwise stated
or unless
the context clearly
indicates
a different meaning, the definitions
of terms
used
in this Part
are the same as
those found
in the
Environmental Protection Act
(Ill.
Rev.
Stat.
1985,
ch.
1111/2, pars.
1001
et
seq.)
and
at
35
Ill.
Adm.
Code
807.104.
b)
Notwithstanding subsection
(a),
the following terms are
defined
for purposes of this Part:
“Act” means
the Environmental Protection Act,
Ill.
Rev.
Stat.
1985,
ch.
1111/2, pars.
1001 et
seq.,
as
amended.
“Agency” means
the Illinois Environmental
Protection
Agency.
81—121
—
“Board” means
the
Illinois
Pollution Control Board.
“Chief Operator” means
the one natural person
in
responsible charge of
a waste disposal site
on
a
24—hour basis.
“Chief Operator”
also means any
person who may from time
to time and
in the regular
course of business
be designated by
a waste
disposal site’s chief operator
to
assume the
functions of chief operator during periods of
vacation, accident,
illness or
the like.
“Natural person” means
a human
being.
The term
excludes
“artificial persons,”
such
as business
or
governmental entities.
“Owner” means
the person who owns
a waste disposal
site
or part of
a waste disposal site,
or who owns
the land
on which
the site
is located.
A person
is
in “responsible charge”
if the person:
Is normally present
at
a waste disposal site;
Directs
the day—to—day,
overall operation at
the site;
and
Either
is the owner
or operator,
or
is
employed by or under contract with the owner
or operator
to assure that the day—to—day
operations
at
the site are carried out
in
compliance
with
35
Ill. Adm.
Code
724,
725,
730, 807 and other Board rules governing
operations
at waste disposal sites.
c)
As used
in this Subpart, “waste disposal site” means
a
site
for which
a waste disposal permit
is required
by
35
Ill.
Adm.
Code: Subtitle G,
including but not
necessarily
limited
to:
1)
RCRA
disposal
permit
required
by
35
Ill.
Adm.
Code
703;
2)
UIC
permit
required
by
35
Ill.
Adm
Code
704;
or
3)
Waste
disposal
permit
required
by
35
Ill.
Adm.
Code
807.
SUBPART
B:
APPLICATION
FOR
CERTIFICATION
Section
745.121
Persons
Who
May
Apply
Any
natural
person
may
apply
for
prior
conduct
certification
pursuant
to
this
Part.
81—122
—~j—
Section 745.122
Application
An application
for prior conduct
certification shall
include:
a)
The name
and address
of the applicant;
b)
Identification
of each waste disposal site
at any time
owned
or operated by the applicant,
or
at which the
applicant served
as chief operator,
including:
1)
The name and address of each site;
and
2)
A description of the nature
of eacn
site and the
type of waste disposed there
(e.g.,
hazardous
waste, municipal waste);
and
3)
A description
of the length of and nature of
involvement with each site;
C)
A copy
of any final administrative
or judicial
determination,
made after opportunity
for
an adversarial
proceeding,
that the applicant
has:
1)
Violated federal,
state
or local
laws,
regulations
or ordinances governing
the operation of
any waste
disposal site;
2)
Been convicted
in Illinois
or
another state of
any
crime which
is
a
felony under
Illinois law,
or been
convicted
of
a felony
in
a federal court;
3)
Shown gross carelessness
or
incompetence
in the
handling,
storing, processing,
transporting
or
disposing
of any hazardous waste
in any state;
d)
A description,
including the name of
the agency or
court, title, docket number
and status, of any
administrative
or judicial proceeding, which
is still
pending, which:
1)
Could result
in
a determination against
the
application of the type described
in subsection
(c);
or
2)
Could
result
in
a
reversal
of
any
administrative
or
judicial
determination
provided
by
the
applicant
in
response
to
subsection
(c);
e)
An
affidavit
attesting
to
the
truth
and
completeness
of
the
facts
asserted
in
the
application.
81—123
—24-
Section
745.123
Duty
to
Supplement Pending Application
The applicant shall supplement any pending application
for prior
conduct
certification
within
30
days
after
any
change
of
circumstances which renders,
in any
respect,
the original
application for prior conduct certification inaccurate
or
incomplete.
Section 745.124
Duty
to Provide Supplemental
Information
a)
Any person who holds prior
conduct certification shall
provide on
an annual basis
a supplemental information
report
to the Agency which identifies change
in any of
the information required by Section 745.122.
A person
who holds
prior conduct certification shall
additionally,
upon Agency request, provide
a
supplemental
information report which identifies change
in any
of
the information required
by Section 745.122
prior
to the first anniversary of the submission
of the
previous
report,
so
long
as
the person nas not been
required
to submit more than
three such reports during
the previous one year period.
1)
The Agency can request supplemental
information
only
if
it has
a sufficient
reason.
2)
The Agency shall
state
the reason at the time
it
requests supplemental information.
3)
“Sufficient reason”
includes information
in the
possession of the Agency which indicates that some
of the information required
in Section 745.122 has
changed.
b)
The Agency shall provide notice
to any individual
certified pursuant to this Part who has failed
to comply
with
the provisions
of
subsection
(a).
Such notice
shall be mailed no less than
45 days after
the due date
of the annual
report,
or
no
less than
45 days after
the
request
for supplemental
information has been mailed.
c)
If
a person certified pursuant
to this Part fails
to
comply with the provisions of subsection
(a) within
45
days after receipt
of
the notice of
subsection
(b),
the
Agency shall notify the person that prior conduct
certification is cancelled
effective upon receipt
of the
notice.
d)
Any person whose prior conduct certification has been
cancelled pursuant
to subsection
(c) may reapply
for
certification at any time upon filing
of
an application
pursuant
to this Part.
8 1—124
e)
The Agency
notices
and
requests
of
this
Section
shall
be
in
writing
and
mailed
to
the
person
by
registered
or
certified mail,
return receipt requested.
Section 745.125
Application Form
The Agency shall prescribe
the form
in which
all information
required under
this Subpart shall
be submitted and may adopt such
procedures
as are necessary
for carrying out its duties under
this Part.
Section 745.126
Incomplete Applications
An application for prior
conduct certification shall not be
deemed filed
until
the Agency has received,
at
the designated
address,
all information
and documents,
in
the form and with the
content required
by this Part and related Agency procedures.
If
the Agency
fails
to notify the applicant within 45 days after
the
receipt
of an application that
the application
is incomplete,
and
of
the reasons
the application is considered
to be incomplete,
the application shall
be deemed complete and deemed tiled
on the
date received
by the Agency.
An applicant may deem the Agency’s
notification that the application
is incomplete
as
a denial
of
prior conduct certification for purposes
of review pursuant
to
the procedures
of
Section
40 of
the Act and
35 Ill. Adm.
Code
105.
A prior conduct certification which has been deemed
to be
denied pursuant
to
this Section
shall not constitute denial
of
certification for
the purposes of Section 745.201.
Section 745.127
Registered
or Certified Mail
All prior conduct certification applications
shall
be mailed
or
delivered
to the appropriate address designated by the Agency,
and,
if mailed,
shall
be sent
by registered
or certified mail,
return receipt
requested.
Applications which are hand-delivered
shall
be delivered
to and receipted
for
by
a person designated
by
the Agency.
SUBPART
C:
AGENCY ACTION
Section 745.141
Standards
for Denial
a)
The Agency shall deny prior
conduct certification
to any
person who has:
1)
Been repeatedly
found,
after opportunity
for
an
adversarial proceeding before any judicial
or
administrative
body,
to be
in violation of any
federal,
state or local
laws,
regulations or
ordinances governing the operation of waste
disposal sites
in any state;
81—125
-26-
2)
Seen convicted
in any state
of
a crime which would
be
a felony under
Illinois la~,
or
been
convicted
of
a
felony
in
federal
court;
3)
Been judicially
or administratively determined,
after opportunity
for
an adversarial proceeding,
to
have shown gross carelessness
or
incompetence
in
the handling, storing, processing,
transporting
or
disposing of any waste
in any state;
4)
Practiced any fraud
or deceit
in obtaining
or
attempting
to obtain prior conduct certification;
or
5)
Failed
to timely file
a supplemental application
pursuant to Section 745.123.
b)
Subsection
(a) notwithstanding,
the Agency may,
in its
discretion, grant prior
conduct certification
if
mitigating
factors exist such that certification should
issue.
Mitigating
factors
include:
1)
The severity of
the misconduct;
2)
How recently the misconduct
took place;
3)
The
degree
of
control exerted
over waste disposal
operations
at
a
site by the applicant at the time
misconduct
described
in
subsection
(a)(3) was
committed.
c)
Pursuant
to Section
39(a)
of
the
Act,
a
person
requesting certification has the burden of demonstrating
that
the person
is entitled
to the certification.
Completion
of
the
application
form stating that none of
the
reasons
for denial exist
is
a sufficient
demonstration
in the absence of
information
to the
contrary.
Section
745.142
Final
Action
a)
If
the
Agency
denies
any
prior
conduct
certification
under
Section
745.141,
it
shall
transmit
to
the
applicant,
within
the
time
limits
specified
in
this
Part,
a
specific,
detailed
written
statement
as
to
the
reasons
why
the
prior
conduct
certification
application
was
denied.
b)
The
Agency
shall
send
all notices
of final action
by
registered
or
certified
mail,
return
receipt
requested.
Final
action
shall
take
place
on
the
date
that
such
notice
is
mailed.
81—126
-27—
Section 745.143
Time Limits
It
the
Agency
fails
to
take
final
action
on
the
application
for
prior conduct certification within
90 days after
its filing,
the
applicant may deem the prior conduct certification granted
for
one
year
beginning
on
the
91st
day
after
the
application
was
filed.
Section
745.144
Waiver
of
Time
Limits
Any
applicant
for
prior
conduct
certification
may
waive
the
requirement
of the time within which
the Agency must take
final
action
on
the
application.
SUEPART 0:
APPEAL, REVOCATION AND TRANSFERABILITY
Section
745.161
Appeal
of
Certification
Denial
If the Agency denies prior conduct certification under
this Part,
the applicant may appeal that action to the Board pursuant to
Section
40
of
the Act and 35
Ill. Adm.
Code
105.
Section
745.162
Revocation
a)
Any person may file
a complaint with
the Board, pursuant
to
Title
VIII
of
the
Act
and
35
Ill.
Adm.
Code
103,
seeking
revocation
of
a
prior
conduct
certification
which has been granted by the Agency,
or which was
issued
by reason of Agency failure to comply with the
time limits of Section 745.143.
Such action may be
based
upon grounds stated
in Section 745,141(a).
b)
Before revoking
a certification,
the Board will consider
the mitigating
factors listed
in Section 745.141(b).
Section 745.163
Duration and Transferability
a)
Except
as otherwise provided
in Section 745.124
or
Section
745.143,
a
prior
conduct
certification
made
pursuant
to this Part remains valid
until revoked
pursuant to Section 745.162.
b)
A prior conduct certification
is not transferable.
SUBPART
E:
PROHIBITIONS
Section 745.180
Applicability of the Subpart
This Subpart does not apply
to sites
used solely for waste
treatment
or
waste
storage.
81—127
—~b
-
Section
745.161
Chief
Operator Requirements
a)
The individual who
is chief operator
of
a
waste
disposal
site,
as defined pursuant
to Section 745.102(c),
shall
have prior conduct certification.
b)
The owner
or
other
named permittee
shall designate one
or
more
chief
operators
for
each
waste
disposal
site.
1)
One
certified
chief
operator
may
serve
in
that
capacity
for
multiple
waste
disposal
units
located
at
one
waste
ãisposal
site.
2)
One
certified
chief
operator
shall
not
serve
in
that
capacity
for
units
located
at
two
or
more
waste
disposal
sites.
3)
A
certified
waste
operator need not
be present
during
all
hours
a
site
is
operating,
provided
that
the
chief
operator
retains
responsibility
for
site
operations
during
the
period
of
absence,
and
can
be
contacted
by
waste
disposal site personnel during
the
absence.
Section
745.201
Prohibitions
a)
No
person
shall
operate
a
waste
disposal
site
unless
the
site
chief
operator has prior conduct certification.
b)
No
site
owner
or
other
named
permittee
shall
cause
or
allow
operation
of
a
waste
disposal
site unless the site
chief
operator
has
prior
conduct
certification.
C)
No
person
shall
own
or
operate
a
waste
disposal
site
if
the
person
has
had
prior
conduct
certification
denied,
cancelled
or
revoked,
unless
the
person
has
a
current,
valid
prior
conduct
certification.
d)
No
person
shall
serve
as
an
officer
or
director
of
the
owner
or
operator
of
a
waste
disposal
site
if
the
person
has
had
prior
conduct certification denied, cancelled
or
revoked,
unless
the
person
has
a
current,
valid
prior
conduct
certif
ication.
e)
i~1O
p?cson
shall
serve as
an employee
at
a
waste
disposal
site
if
the
person
has
had
prior
conduct
certification
denied,
cancelled
or
revoked,
unless
the
person
has
a
current,
valid
prior
conduct
certification.
Section
745.202
Agency
Denial
of
haste
Disposal
Permit
The
Agency
shall
deny
any
waste
disposal
permit
to
any
owner
or
other
named
permit
applicant,
unless
the
applicant
demonstrates
81— 128
—29—
that
the applicant will not
violate
Section
745.201.
Completion
of
the
application
form
stating
that
the
applicant
intends
to
comply
is
a
sufficient
demonstration
in
the
absence
of
information
to
the
contrary.
Section
745.203
Revocation
of
Waste
Disposal
Permit
Any
person
may
seek
revocation
of
any
waste
disposal
permit
on
the
grounds
that
the
waste
disposal
site
is
in
violation
of
Section
745.201.
Such
action
shall
be
initiated
by
filing
a
complaint
with
the
Board
pursuant
to
Title
VIII
of
the
Act
and
35
111.
Adm.
Code
103.
Section
745.264
Defense
It
shall
be
a
complete
defense
to
an
action
brought
pursuant
to
Section
745.203
that
a
replacement
certified
chief
operator
has
been
employed
within
90
days
after
the
date
of
termination
of
employment
of
a
certified
chief
operator,
or
cancellation
or
revocation
of
the
chief
operator’s
prior
conduct
certification.
Section
745.205
Effective
Date
The
prohibitions
of
this
Subpart
shall
become
effective
July
1,
1988.
IT
IS
SO
ORDERED.
Board
Member
Bill
Forcade
concurred.
I,
Dorothy
N.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
cert,ify
that
the
ab~ve,Qpinion
and
Order
was
adopted
on
the
-‘/~
day
of
~
,
1987,
by
a
vote
of
(~-()
.
:1/
~
~
~
Dorothy
M.’Gunn,
Clerk
Illinois Pollution Control Board
81—129
