ILLINOIS POLLUTION CONTROL BOARD

October

2,

1986

IN THE MATTER OF:

HAZARDOUS WASTE PROHIBITIONS

)

R 86-9

DISSENTING OPINION (by

B.

Forcade):

I dissent from today’s action,

Because of the

speed with

which

this action is being

taken,

and the short time available

for review of each draft of the proposed emergency rules,

I can

only chronicle

the major

areas of my disagreement,

My first area of concern

is that there

is

no emergency to

support bypassing the normal regulatory process.

The statutory

provision which these regulations are intended

to implement did

not spring

forth

in the last few months.

Section 39(h)

has been

the adopted

law in Illinois

for five years,

The Pollution

Control Board knew it existed, the Environmental Protection

Agency knew it,

as did the regulated community and the public

interest sector,

This association of individuals

(myself

included) exercised their collective indifference

for over four

years.

Now the cries of emergency are deafening.

This Board

frequently receives requests

for variance

from

the regulated community.

If the Board determines that the

regulated entity knew of the constraints in advance but failed

to

adequately plan ahead, the variance

is denied because of “self—

imposed hardship.”

Today’s action represents

the

ultimate

response

to self—imposed hardship,

The second aspect demonstrating no emergency is that Section

39(h)

is self—implementing.

If the General Assembly had required

that the Board

adopt regulations before the proscriptions of

Section 39(h)

became effective,

the situation would be

different,

But the language of that provision is clear,

On

January 1,

1987,

the prohibitions become effective whether or not

the Board

acts,

In

fact,

the Agency has stated

it

is fully

prepared

to process Section 39(h)

authorization applications

without Board

action,

On page

3 of the majority opinion,

it

is

argued that Section 39(h) may not be self—effectuating

and will

not become effective until

the Board adopts rules,

I believe

it

would be a substantial surprise

to

the General Assembly to learn

that they cannot prohibit certain hazardous waste disposal

practices unless

a majority of this Board agrees.

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—2—

The

third aspect cautioning against

an emergency rule

is

that this is not

“a situation which,..reasonably constitutes

a

threat

to the public

interest,

safety, or welfare”

(Administrative Procedures Act, Section 5.02).

Hazardous waste

will not pile

up on the streets of Chicago or Peoria,

At most,

one Agency of state government (the IEPA) will implement the

provisions of Section 39(h)

in

a manner that

a portion of another

branch of state government

(this Board)

deems inappropriate.

Turf fights between sister

agencies about statutory

interpretation may indeed constitute

a “threat

to the public

interest,” but they provide a very poor basis

for emergency

rulemaking.

Nearly all of the proposed emergency rules are an

attempt

to remove Agency jurisdiction in areas where they have

expressed an intention

to act,

or

to restrain the time and method

by which the Agency will act,

My primary concern with

the substance of the proposed

emergency rule continues to be

the exceptions.

The primary

substantive

focus of today’s action by the majority

is

to remove

certain materials,

in Section 709.202 of the regulations, from

the wastestream authorization requirements of Section 39(h)

of

the Act,

and

to remove certain types of facilities,

in Section

709,110(b) of the regulations, from the prohibitions of disposal

in Section 39(h)

of the Act,

Most of my objections were

articulated

in my dissenting opinion of June 11,

1986,

and will

not be

repeated here,

The majority continues to ascribe great importance

to the

fact that Section

39(h)

prohibits

the “deposit” of hazardous

waste

rather than the “disposal,”

They argue that deposit

is a

much more restrictive word than disposal

as evidence by the

definition of disposal

in Section 3(e)

of the Act, which

provides:

e.

“DISPOSAL”

means

the

discharge,

deposit,

injection,

dumping,

spilling,

leaking

or

placing

of

any

waste

or

hazardous

waste

into or

on any land or

water

or

into any

well

so

that

such

waste

or

hazardous

waste

or

any

constitutent

thereof

may

enter

the environment

or

be emitted

into

the

air

or

discharged

into

any

waters,

including groundwaters.

If disposal

is distinct

from deposit, then surely spilling

and dumping are distinct from deposit.

Using

this theory,

it

would be permissible

to discharge,

to inject,

to dump,

to spill,

to

leak, or

to

place

a hazardous waste

into

a hazardous waste

disposal facility without an authorization

(even those

few

facilities that would

remain under

the scope of today’s proposed

emergency rule),

so long as you did not “deposit”

it

in the

facility.

I have great difficulty with that interpretation.

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—3—

In Section 729,122(a),

the proposed rule precludes the

Agency from considering process substitutions or waste

minimization

in making its determinations.

While

I do not

believe the Agency should tell industry how

to make it products,

today’s

language

is

far

too sweeping.

A substantial portion of

the Board’s existing regulations

to control ozone are expressed

in terms of pounds of volatile organic material per gallon of

coating material

used.

35 Ill. Adm, Code 215,204,

This

is

clearly

process

control.

I

would

need

a

much

better

reason

than

the

record

provides

before

I

could

categorically

prohibit

a

concept

in

an

emergency

rule

for

hazardous

waste

that

is

so

clearly

established

for

ozone

control.

Waste

minimization

sounds

like a laudable goal

if

the objective is

to reduce

the amount of

hazardous waste going

to hazardous waste disposal sites.

If,

as

the majority opinion states at page 9, generators are already

required

to consider and implement reasonable

waste reduction

processes, why

is

the Agency precluded from looking

at this

information?

In Section 729.122(f),

the proposed rule precludes the

Agency from denying

a facility a wastestream authorization based

on violations of other permits the facility might hold,

Recently

at an air pollution conference,

an Agency employee expressed his

view that the Agency was empowered by the Act to deny air permits

for violations of water permits.

Others have expressed contrary

views,

If the idea

has legal merit,

it will

survive,

if

it does

not,

it will fail,

But surely

so profound

a concept deserves

full

legal briefing and consideration by all sides,

It should

not

sneak

in the backdoor

as one sentence in

a nineteen p~ge

emergency rule that has had less than two weeks

reviews

Section 709,106 and 709.404 represent last minute additions

to

the proposed regulation,

They establish a ninety—day deadline

for Agency decisionmaking.

When the deadline

is not met,

the

authorization

is granted by default,

This concept has never

before seen the light of day

in this regulatory proceeding,

While

there appear

to be

some strong

legal arguments that this

is

exactly what the law requires,

there could be strong

legal

arguments against

it,

If the Board

intends to

impose such

draconian measures against the Agency,

at least they deserve the

opportunity

to raise arguments against,

The short

time

I have had

to review the proposed rule

precludes

a more detailed critique.

I have had little

opportunity to explore the consequences of the interplay of the

various

sections,

This

I believe argues strongly against the

haste

with

which

this

emergency

rule

is proceeding,

Accordingly,

I

dissent,

73-39

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—4—

Member of the Board

I, Dorothy

M, Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the ab

~senting

Opinion was

submitted on the

~-

day of

_______________,

1986,

Doro

Illinois Poll

Control

Board

73-40