ILLINOIS POLLUTION CONTROL BOARD
    October
    9, 1986
    IN THE MATTER OF
    )
    HAZARDOUS WASTE PROHIBITIONS
    )
    R86—9 Docket A
    CONCURRING OPINION (by J. Theodore Meyer):
    Although
    I concur with the majority’s action today of
    putting these emergency rules out for comment
    I believe in one
    important respect the rules go too far
    in implementing Section
    39(h).
    As now proposed, the rules rely on the concept of a land
    disposal
    unit in order
    to integrate various disposal
    prohibitions.
    While underground injection wells and discharges
    to sewers are excluded from the definition of a land disposal
    unit based
    on the Board’s interpretation of the word “deposit”,
    these exclusions do not go far enough.
    In fact,
    in my view,
    Section 39(h) was intended only to apply to landfills and not to
    surface impoundments, waste piles or land treatment units as
    currently provided
    in the proposed emergency rules.
    The majority
    itself notes that the legislative history focused solely on
    landfilling (see
    Exs.
    5 and 6).
    And while the opinion reminds us
    that “nowhere
    in the legislative debates
    is underground
    injection or discharge to a sewer discussed,”
    it
    ignores the fact
    that similarly there was no discussion of or intention
    to include
    surface impoundments, waste piles or land treatment units.
    A
    review of the legislative debates in fact reveals that the
    sponsor of the bill in the House, Representative Hannig, was
    principally concerned with the status of hazardous waste
    landfills
    in his county.
    In this regard
    it
    is of note that
    Representative Hannig was from the Wilsonvilie district in which
    one of the largest hazardous waste landfills in the state is and
    was located.
    As explained by him,
    “I represent
    a district where
    we do have
    a hazardous waste dump and where we have had problems
    with hazardous waste....”
    and “Tihe
    theory behind this concept
    is that burying hazardous wastes is probably the worst way to
    dispose of them and
    in those cases where
    it can be documented
    that reasonable methods of disposal are available then burying
    should be prohibited.”
    (Emphasis added).
    This brief quote of
    the debate
    is illustrative of the House’s understanding that the
    scope of the prohibition applied only to landfills.
    This same
    preoccupation is evidenced
    in the Senate debate where Senator
    DeMuzio, also from the Wilsonville area,
    sponsored the bill.
    In
    explaining the effective date the Senator stated that Section
    39(h)
    was an “implementation of the prohibition against
    landfilling” and that “the EPA may grant authorization for land
    disposal only after the generator has reasonably demonstrated
    that the waste cannot be reasonably recycled.”
    (Emphasis added).
    73-121
    —2—
    Despite my objections to the overly broad scope of
    these
    rules in implementing Section 39(h),
    I will concur
    in this action
    for the following reason.
    It
    is imperative that these emergency
    rules be put out for public comment so that some guidance as to
    the implementation of the Section 39(h)
    prohibition will be
    provided
    to the regulated community.
    According to my
    understanding
    of the tripartite system established by the
    Environmental Protection Act, that guidance must issue from the
    Board and not the Agency.
    Under Sections
    30 and 31
    of the Act
    the Agency is required to investigate possible violations and
    engage
    in enforcement proceedings where
    a violation is
    discovered.
    Substantive regulations of the type necessary to
    effectuate Section 39(h)
    are to be promulgated by the Board.
    Section 27.
    Thus, the Agency’s attempts to provide “guidelines”
    as to how they will administer the Section 39(h)
    prohibition
    intrude too far on powers invested only in the Board.
    Indeed
    Section 39(h)
    itself clearly contemplates that the Board will
    provide regulations
    to effectuate it,
    while
    the Agency will
    administer
    the prohibition consistent with those regulations.
    Thus,
    I believe the Board would be abdicating its responsibility
    under
    the Act and Section 39(h)
    if it were to allow the Agency to
    implement this program.
    For the foregoing reasons,
    I concur.
    ~heodoreMeye~~
    I, Dorothy
    M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certif~that the above,çon u ring Opinion was
    submitted on the
    /~-
    day of
    &“
    ,
    1986.
    ~26it~4
    p2?.
    ,~P
    Dorothy M.
    G&inn,
    Clerk
    Illinois Pollution Control Board
    73-122

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