ILLINOIS POLLUTION CONTROL BOARD
March
19, 1987
IN THE MATTER OF:
)
PRIOR CONDUCT CERTIFICATION
)
R81—18
FOR WASTE DISPOSAL SITE PERSONNEL:
35 ILL. ADM CODE
745..
)
PROPOSED RULE
FIRST NOTICE
PROPOSED OPINION AND ORDER OF THE BOARD
(by R.C.
FleITtal):
This docket was originally opened by the Board on June
10,
1981,
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.
8l-l484 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.
1111/2, par. 1022.5).
In its
entirety,
Section 22.5
reads:
By July
1,
1984,
the Board
shall
adopt standards for
the certification of personnel
to operate refuse
disposal 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 officer 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.
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--2l,
R82—22,
R84—3,
R84—17,
and
R84—22.
The principal difficulty has been the desire
of the
76-392
—2—
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 has been necessary to
determine the directions taken
in the other
rulentakings 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 submits for first
notice
a proposed
rule pursuant to Section 22.5.
PROCEDURAL HISTORY
In light of the substantial history of activity within this
docket and other pertinent dockets,
the Board will briefly set
the background
for its action today by reviewing the principal
elements of that history.
Subsequent to
initiation of this docket,
the Board conducted
three
public
hearings
and
received
six
public
comments.
Based
upon
these,
the
Board
on
May
13,
1982,
proposed
a
revised
set
of
rules, which were published at
6
Ill.
Reg.
6523, June
4,
1982.
Following
the June
1982 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
Ill.
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—lB: Certification of Waste Disposal Site
Owners and Operators”,
Doc.
No.
83/04,
January,
1983 (hereinafter
“EcIS”).
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
those under
consideration
in R84—l7 and R84—22,
the Board has
postponed further official action until
this time.
In
summary,
the Board
has conducted seven hearings and
received
16 public comments
in the instant matter.
Additionally,
it has twice previously gone to first notice with amended
proposals.
76.393
—3—
OVERVIEW OF TODAY’S PROPOSAL
It
is the Board’s intent in
this proceeding,
as originally
enunciated when the docket was opened
(43 PCB 589),
only to
prescribe standards for what
is essentially a certification that
an applicant’s prior criminal and administrative history of
violations do not disqualify the applicant
front operating
a waste
disposal
site or
unit.
In short,
these rules prescribe
procedures
for acting
upon an applicant’s ne9ative qualities.
These rules are not intended,
nor
have ever been intended,
to
establish standards for defining positive qualities such as
technical education, training, an~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
proposal
the
Board
offers
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.
Nevertheless, today’s proposal departs
in many particulars
from the most recent prior proposal, that of June 1984.
Many of
the changes stem from
a change
in emphasis
front site—related
certification
to certification of individuals.
This change
is,
in fact, not
a precipitous change, but rather one which has
steadily evolved
over the course of the proceeding.
Among the
most obvious differences related
to
the change
in emphasis are
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 proposed rule.
There are two major additions and one major deletion
in
today’s proposal.
The additions consist of a provision for
automatic cancellation of certification
in Section 745.124 and
two added prohibitions
in Section 745.201.
The deletion consists
of removing the prior distinction between certification for
hazardous versus non—hazardous waste disposal sites from Section
745.122 and elsewhere.
The reasons
for these major changes are
discussed
in the following under
the appropriate
section heading.
Given both the degree of alteration
in the proposed
rules
and the lengthy period of time that has elapsed since the record
has last been open for public
comment, the
Board believes
it
advisable that
a general discussion of each section be
presented.
Accordingly,
the
following material consists of
an
overview of each of the proposed sections and comment on the
intent of that section.
Additionally, comment
is given on those
portions of the proposed rules which have been amended
or
76-394
—4—
modified relative to
the
rules proposed by the Board
in its most
recent prior
action of June
14,
1984.
History prior
to June 1984
is also discussed where this history is
important
to an
understanding of the current proposal.
DISCUSSION OF TODAY’S PROPOSAL
Subpart A:
GENERAL PROVISIONS
Section 745.101
Scope
and Applicability
This section identifies
in 745.101(a)
that the Part
establishes procedures
for prior conduct certification of waste
disposal site personnel.
This subsection
is new, and
is
reflective of the emphasis on establishment of general prior
conduct certification focused on individuals.
Subsection 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.
The
subsection
is unaltered
in content from that found
at 745.101(b)
of the June 1984 proposal.
Subsection 745.101(c)
is new.
It identifies that any person
who does not currently hold prior conduct certification due
to
denial
of certification or due
to
cancellation
or
revocation
of
certification
is prohibited from owning or operating
a waste
disposal site,
or
serving
as an
employee, officer
or director of
the owner or operator of
a waste disposal
site.
More detailed
discussion of this addition
is presented below under
the Subpart
E discussion.
In the June
1984 proposal
this section contained several
additional provisions relating
to conditions under which
prior
conduct certification
is mandatory.
These are now found
at
Subpart D,
and discussed herein under that heading.
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 other
proceedings.
These definitions elsewhere within Subtitle G have
now
either
been
finalized
or
exist
in
sufficiently
certain
form
so
that this impediment no longer exists.
76-395
—5—
Nevertheless, given
the possibility of further flux
in
definitions, particularly
in the on—going R84—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”
(thereby precluding
the possibility of
having the chief operator being identified as some legal entity
rather
than as
an individual), 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
unit
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
in sewage treatment plants are referred
to as “operators”, even
if they may have overall supervisory responsibilities.
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 prohibitions 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
1 The Board
notes that use of the
term “unit” herein
is intended
to be consistent with the definition the term at 807.104 as “any
device, mechanism,
equipment or area used for storage, treatment
or
disposal
of
waste”.
76-396
—6—
site”
as used
in this Part.
Based on comments received
at
hearing,
incinerators, which are governed by 35
Ill. Adm.
Code:
Subtitle
B,
are
today
being
deleted
from
consideration
under
Part
745
(see also discussion
for section 745.181,
herein)..
Subpart B
APPLICATION FOR CERTIFICATION
Section 745.121
Persons Who May Apply
This section specifies that any natural
person,
as opposed
to
a corporate entity, governmental unit, etc., may apply for
prior conduct certification pursuant
to this Part.
It
is
a new
section not present
in the June 1984 proposal.
It
is being added
in response
to concerns expressed
at hearing that it would be
desirable
to allow 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, and the like.
Section 745.122
Application
This section specifies the information that must be included
in an application.
Items
(a)
and (b)
serve
to
identify the
applicant and
to
identify the waste disposal 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 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
disposal..
This “two—level”
certification not only presents
serious problems
of workability, but also implies that prior
poor
76-397
—7—
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.
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.
This section was found
at 745.143
of the June 1984 proposal..
Section 745.124
Duty
to Provide Supplemental Information
Subsection 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
latter
provision
is an addition to the comparable section of the
June 1984 proposal
(there found at 745,143),
and
is
intended
to
serve as
a safeguard against harassment.
The time period
of the
update has also been changed from semi—annual
to annual based on
comments at hearing
that the
shorter time period, particularly
given the ability
to the Agency
to request updates as needed, was
unduly burdensome.
Subsections 745.124(b)
through
(d)
are new.
Their
intent
is
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
745.124(a).
Secondly,
there was no mechanism for cancellation of
certification, once granted,
short of
a formal revocation action
brought before the Board.
In the
latter context,
it
is readily
imagined,
that individuals may no longer wish to be certified for
reasons of change
in job,
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.
Subsection 745.124(b)
specifies that the Agency shall notify
any individual
certified pursuant to this Part
for
failure
to
comply with the provisions of 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 745.124(a)
before the notification may be made.
Subsection 745.124(c)
specifies that continued failure
to
comply with 745.124(a)
after receipt of the Agency’s notice of
745.124(b)
is grounds for certification
to be cancelled.
As
presently proposed, cancellation
is effective upon receipt from
76-398
—8—
the Agency of
a notice specifying that the person has continued
to fail
to comply with the requirements of 745.124(a)
and has
also failed
to
respond
to the notice of 745.124(b).
This
additional notice, which actually effectuates cancellation,
is
seemingly required by due process considerations.
However,
if it
can be demonstrated that due process problems would.not exist,
the cancellation could
be achieved less burdensomely by simply
having
it be effective at some time after the 745.124(b)
notice
has been received but not acknowledged.
The Board specifically
requests comments on this matter.
By providing for automatic cancellation, subsection
745.124(c) provides a penalty appropriate
to failure
to comply
with 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 cumbersome
revocation proceeding.
The Agency might wish,
for example,
to
include
in
the notification of 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 provide for cancellation of the certification..
The Board
is aware that the goal of having
a mechanism for
certification termination could
be handled by other means.
One
such way might
be specification that
the certification be of a
given
term,
for
example
five
years,
after
which
reapplication
would
be
required
for
continuance
of
certified
status.
This
alternative,
in particular, would not address the problem of the
absence of provision for penalty for failure
to comply with
745.124(a).
However,
it might have other merits which would make
it more appropriate as
a termination procedure than the procedure
proposed here.
Comments
on
this
issue
are
also
desired..
The
fourth subsection, 745.124(d), specifies that
an
individual whose certification has been cancelled pursuant
to
745.124(c)
may reapply for certification
at any time by filing
a
new application.
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 745.144)
this section also contained
a
provision requiring the Agency to conform the application
procedures
to the Illinois Administrative Procedure Act.
This
provision has been deleted as outside the authority of the Board
to order.
76-399
—9—
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.
There are no substantive alterations
to this section
relative to
the June 1984 proposal
(there found
at 745.146) other
than specification that failure of the Agency
to give notice
within 45 days after receipt of an application that such
application
is incomplete deems the application
to have been
filed
on the date of receipt and
to be complete
as
filed.
This
inclusion is intended
to assure timely action on the part of the
Agency.
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.
It remains unaltered, other
than renumbering from
745.147, relative
to the June 1984 proposal.
Subpart C
AGENCY ACTION
Section 745.141
Standards for Denial
This critical section defines
in 745.141(a)
the grounds upon
which the Agency may deny prior conduct certification.
In
745.141(b)
it also defines the
factors the Agency must take into
consideration
in making
a determination
to grant or deny
certification.
745.141(a)
remains unchanged from the corresponding
provisions of the June 1984 proposal
(there found at 745.161),
other
than for slight rewording to more closely conform it
similar
languague used
in Section 22.5 of the Act,
and for change
of the connective between 745.l4l(a)(4)
and
(5)
from “and”
to
“or”.
The latter change
is made to make it clear that the Agency
may deny certification based on any one of the five grounds, and
that its
is not necessary that the Agency find cause against the
applicant on each of the five grounds.
Subsection 745.141(a) specifies
five showings that must be
demonstrated
in
the application.
These
are
that the applicant
76.400
—10—
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.
745.141(b)
specifies what
is
to be considered by the Agency
in making its determination to either grant or deny
certification.
The factors are also those
to be considered by
the Board
in an appeal of
a certification denial and
in a
revocation action, pursuant to Section 745.162(b).
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.
The three
items remain unchanged from the June 1984 proposal,
although their order
of presentation has been modified..
The June 1984 proposal contained two additional provisions
in what is here 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 new
today..
Its
intent
is
to make it
clear
that the burden of demonstrating good prior conduct rests
with the applicant.
Section 745.142
Final Action
This section specifies that
if the Agency denies
a
certification application based
on any of the grounds identified
in 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.
The word “written” has been added
to this section as
compared
to the June 1984 draft
(there found at 745.162)
to
clarify that
the reasons
for denial must be provided
in written
form.
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.
The
76.401
—11—
word “beginning”
has been inserted prior
to “on the 91st day”,
as
compared
to the June 1984 draft
(there found at 745.163).
This
change
is being made to provide clarity
to the date upon which
the deemed certified one—year period
is
to commence.
The Board has some question as
to whether
this “default
provision”
is
in fact a necessary element of the
rule..
Accordingly,
the Board particularly solicits comment on this
matter.
Section
745.144
Waiver
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.
It remains unaltered
from that previously found
at 745.164 except
for change of the
word “shall”
to “must”.
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 statues, regulations, case law,
and
precedents which govern permit appeals.
This section was found
at 745.181
of the June 1984 proposal.
Section 745.162
Revocation
This
section
provides
that
any
person
may
seek
revocation
of
certification
based
on
any
of
the
grounds
stated
in
745.141(a)
by
filing
a
complaint
with
the
Board
pursuant
to
Title
VIII
of
the
Act and 35.111.
Adm.
Code 103.
The term “person”
is used here
in
the broad
context, as defined
in the Act.
The section further
provides
that
the
Board
will
consider
the
factors
listed
in
745.141(b)
is
reaching
its
determination
in
a
revocation
proceeding..
This
section
was
found
at
745.182
of
the
June 1984
proposal.
In
the June
1984 proposal
the title
to this Subpart
contained reference
to “suspension”
in addition
to
“revocation”.
Other references
to “suspension or revocation”
also occurred
at various positions within the
Part..
All
references
to suspension have been deleted here and elsewhere
within the Part.
As currently proposed the only mechanisms by
which certification may be involuntarily terminated once granted
are via the cancellation provison of
745.124
and the revocation
procedure of this section.
76-402
—12—
There has been some concern that
a mechanism for suspension
of
certification
at
the
discretion
of
the
Agency
may
have
merit.
The Board
is not proposing such
a mechanism at this time,
under the belief that the cancellation and revocation procedures,
as proposed, constitute sufficient mechanism for involuntary
termination
of
certification,
and
that
suspension
might
present
problems
of
a
due
process
and
legal
authority
nature.
However,
the Board would particularly welcome comment on this issue..
Section 745.163
Duration and Transferability
This section provides that all certifications granted other
than pursuant to 745. 143 shall
remain valid unless
revoked by
Board
action
pursuant
to
745.162
or
cancelled
pursuant
to
745.124.
It
further
provides
that certification
is not
transferable.
This section, with minor modification, appeared at
745.183
of the June 1984 proposal.
Subpart
E
PROHIBITIONS
Section 745.180
Applicability of the Subpart
Section 745.180
identifies that the requirements of Subpart
E do not apply to waste treatment and storage sites.
This
section was found at 745.101(c)
of the June 1984 draft.
Section 745.181
Chief Operator Requirements
This section gathers provisions found
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 “chief operator
is defined
in 745.102.
“Waste
disposal
site”, which
is also defined
in 745.102
for the purposes
of this Part,
is any site for which a waste disposal permit
is
required by
35
Ill.
Adm..
Code:
Subtitle G.
In
its June 1984 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
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
76-403
—13—
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 is therefore restricted to assuring
that a certified operator
is in charge of day to day
operations.
This not withstanding, 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 745.102.
This provision is meant
to
exclude the need for certification of every individual
employed
at
a waste disposal site or unit,
and rather limits certification
to just that individual
or
those individuals who bear actual
responsibility
for site operations.
Subsection 745.181(b)
is an addition relative
to
the June
1984 proposal.
It
is being
added on the recommendation of Waste
Management Inc.
(Public Comment 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 responsibility
for site operations..
The Board believes that each of these
additions has potential merit, and that each may be consistent
with the record as developed
to date.
However, given the absence
of prior opportunity for other participants
to comment on these
additions,
the Board notes that
it particularly solicits comments
on their inclusion.
Section 745.201
Prohibitions
This section sets out
the four
basic prohibitions which flow
from the mandatory prior certification provision of
Section
745.181.
These
are that no person shall operate
a waste disposal
site unless the chief operator has prior conduct certification
(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 (745.201(b)); that
no person
shall own or operate
a waste disposal site
if the
person has had prior conduct certification denied,
cancelled,
or
revoked and the prior conduct certification has not been
76-404
—14—
reestablished (745.201(c));
and
that no person shall
serve
as an
employee, 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 (745.201(d).
The proposed prohibitions of 745.201(a)
and 745.201(b)
are
unaltered
in concept from those
found at 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 proposed prohibitions of
745.201(c) and 745.201(d)
are
new today.
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 would be violated
if such
circumstances were
to occur, and therefore wishes to provide the
best deterrent possible.
The Board
therefore particularly
solicits comment on these
two additional prohibitions, including
comment on both the merits of the prohibition and the Board’s
authority to promulgate these
prohibitions.
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
discusion,
Section 745.122).
Section 745. 202
Agency Denial
of Waste 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.
In
the June 1984 proposal
(there found
at 745.122)
this
section
also provided that the Agency could deny issuance of any
waste disposal permits required under
Subtitle G 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.
76-405
—15—
Section
745.203
Revocation
of
Waste
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,
and
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.
This
section
was
found
at 745.203
of the June 1984 proposal.
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 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.
The
Board
particularly
solicits
comments
on
the
matter
of
whether
the
increase
to 90 days,
as today proposed,
is
sufficient
to
rectify
this
perceived
problem.
Section
745.205
Effective
Date
This section
is new today.
It specifies that the
prohibitions of this Subpart shall
become effective July
1,
1988.
This date
is presently presumed
to provide sufficient time
for the promulgation of this Part.
It
is also presently presumed
to provide
for no less than 180 days after promulgation and
before the effective date 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.
Should this presumed schedule not be achievable,
the date
may have
to be changed
accordingly.
PUBLIC COMMENT
Given the lengthy record already compiled
in this matter,
the Board does not at this time foresee the need
to conduct
additional hearings.
Nevertheless, given the magnitude of the
amendments proposed today,
the lengthy time since the record
in
this matter was last open,
and
a desire
to bring this matter
to
final
action,
the
Board
serves
notice
of
a
particular
desire
for
receiving
public
comment
during
the
first
notice
period.
76-406
—16—
ORDER
The Clerk is directed
to cause publication
in the Illinois
Register of the First Notice of the following proposed rules.
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
D:
APPEAL, REVOCATION AND TRANSFERABILITY
Appeal
of Certification Denial
Revocation
Duration and Transferability
Applicability of the Subpart
Chief Operator Requirements
Prohibitions
Agency Denial
of Waste Disposal Permit
Revocation of Waste Disposal Permit
Section
745.101
745.102
Section
745.141
745.142
745. 143
74 5. 144
Section
745. 161
745.162
745. 163
Section
745.180
745.181
745. 201
745.202
74
5.. 203
SUBPART
E:
PROHIBITIONS
76-407
—17—
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
(Ill.
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
employee,
officer
or
director
of
the
owner
or
operator
of
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;
76-408
—18—
“Board” means the Illinois Pollution Control Board;
“Chief Operator” means the one natural person
in
responsible charge of the day to day, overall
operation 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;
“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.
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. Mm. 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..
Section 745.122
Application
An
application
for
prior
conduct
certification
shall
include:
a)
The
name
and
address
of
the
applicant;
b)
1)
The
name
and
address
of
each
waste
disposal
site
at
any time owned or operated by the applicant,
or at
which the applicant served as chief operator;
2)
A description of the nature of the site and the
type of waste disposed
of there
(e.g.,
hazardous
waste, municipal waste);
and
3)
A description of the length of and nature of
involvement with each site.
76.409
—19—
c)
A copy
of any 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 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..
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 has not been
required
to submit more than three
such reports during
the previous one year
period..
76-410
—20—
b)
The
Agency
shall
provide
written
notice
via
registered
or
certified
mail,
return
receipt
requested,
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 written 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 by registered or
certified mail,
return receipt requested,
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.
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.l2~
Incomplete Appliáations
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 filed
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.
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.
76-411
—21
—
SUBPART C:
AGENCY ACTION
Section 745.141
Standards
for Denial
a)
The Agency may 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;
2)
Been convicted
in any state of a crime which would
be
a felony under Illinois law, 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)
In making
a determination to grant
or deny prior conduct
certification, the Agency shall consider:
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)
A person requesting
certification has the burden of
demonstrating that the person
is entitled
to the
certification.
Section 745.142
Final Action
a)
If the Agency denies any prior conduct certification
under
Section 745.141,
it shall
transmit
to the
76-412
—22—
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.
Section 745.143
Time Limits
If 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..
SUBPART
D:
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)
In making its determination
in such action,
the Board
will consider
the
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.
76.413
—23—
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.
Section 745.181
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
perinittee 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 disposal
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 employee, 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 certification.
76-414
—24—
Section 745.202
Agency Denial
of Waste Disposal Permit
The Agency shall deny any waste disposal permit
to any owner or
other named permit applicant, unless the applicant demonstrates
that the applicant will
not violate Section 745.201.
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 745201.
Such action 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
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.
Jacob
D.. Dumelle concurred
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Order was
adopted
on
the
/~f~
day of
7~t~__~6-
,
1987,
by a vote
of
______.
F-’
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
76-415
