ILLINOIS POLLUTION CONTROL BOARD

June 11,

1986

IN THE MATTER OF:

)

HAZARDOUS WASTE PROHIBITIONS

)

R 86-9

DISSENTING OPINION

(by B.

Forcade):

I dissent from the majority’s action today based on

four

issues.

These are:

1) RCRA permits by rule;

2)

exemption of

underground injection;

3)

allowing wastes

to “cease

to exist”;

and 4)

an overbroad attempt to regulate “good waste management

practices” rather than discouraging waste disposal.

First,

the provisions of Section 703.142 provide a permit by

rule

fot new hazardous waste storage or treatment facilities

when

certain information

is filed with the Agency.

The purported

rationale for

this drastic step

is that the permit process

“takes

too long”

in the majority’s view.

This action clearly goes

beyond

the statutory mandate

of Section 39(h).

This

is

a

blatantly illegal attempt

to vacate Section 3005(a)

of

RCRA which

provides,

in essence:

...after

November

19,

1980

the

treatment,

storage

or

disposal

of

any

such

hazardous

waste

is prohibited

except

in

accordance with

a

RCRA

permit.

One consequence

of today’s language

is

that it would allow

“Joe’s Garage”

to become

a repository

for the most toxic of

hazardous wastes

so long as Joe had filed some papers with the

Agency.

Further,

the process

of Agency evaluation of Joe’s

application, subsequent denial, and Board appeal could

leave

the

facility

in operation for months

if not years without any

violation of state

law.

I doubt any reputable organization would

be willing

to spend

the time and money

to construct and operate

a

competent facility in the hopes

that it “might” later

be granted

a permit by the Agency.

My next concern

is the exemption of underground injection

from the requirements of Section 39(h).

That Section speaks

to

“hazardous waste

site”

and “disposal

site,”

from which

the

majority concludes that “hazardous waste disposal site” does not

include underground

injection.

First, the Act

in Section 3(e)

defines disposal:

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—2—

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

constituent

thereof

may

enter

the

environment

or ‘be emitted

into

the

air

or

discharged

into

any

waters,

including ground waters.

That

language would certainly seem to cover

underground

injection into

a well within the definition of hazardous waste

disposal.

Second,

the Act

in Section

22.8(f)

defines hazardous

waste disposal site:

f.

For purposes of this Section,

a hazardous

waste

disposal

site

consists

of

one

or

more of

the following operation units:

I.

A landfill receiving hazardous waste

for disposal;

2.

A waste pile or surface impoundment,

receiving hazardous

waste,

in

which

residues

which

exhibit

any

of

the

characteristics

of

hazardous

waste

pursuant

to

Board

regulations

are

reasonably

expected

to

remain after

closure;

3.

A land

treatment

facility receiving

hazardous waste;

or

4.

A well injecting hazardous waste.

Again,

the Act seems

to have rather

specifically included

underground injection

into

a well within the definition of

hazardous waste disposal site.

In fact,

the three specific

examples

in Section 709.110 are virtually identical

to three

of

the four specific examples

in Section 22.8(f).

The fourth

specific inclusion

in Section 22.8(f)

of the Act, injection

wells,

is specifically EXCLUDED from the definition of disposal

site

in

the regulations at Section 709.110.

Additionally,

in Section 22.2(b)(2)(C), the Act employs the

term hazardous waste disposal

site:

C.

If

the

hazardous waste

disposal

site

is

an underground

injection well, $2,000 per

year

if

not more than 10,000,000 gallons

per year are injected, $5,000 per year

if

more than 10,000,000 gallons but not more

70-168

---

—3—

than

50,000,000

gallons

per

year

are

injected,

and

$9,000

per

year

if

more

than

50,000,000

gallons

per

year

are

injected.

Again,

according to the

language of the Act, an underground

injection well

is

a hazardous waste disposal site.

The majority

attempts

to confuse the issue by defining

the sites,

in the

regulations,

as “Land Disposal Units” and then claims confusion

with the landfill provisions of Section 22.6 of the Act.

However,

the word “land”

or

“landfill” never occurs

in Section

39(h).

I perceive this as

a supreme case of

“smoke

and mirrors,”

which attempts

to accomplish

a goal which

the majority concludes

is environmentally acceptable and reflects what the General

Assembly “really”

intended.

I do not have the majority’s gift

to devine what the General

Assembly “really”

intended in Section 39(h).

Unfortunately,

I am

restricted

to reading

the language

they actually enacted.

It

leads

to

a different conclusion.

My third

issue of concern

is the

“cease

to exist” language

of Sections 709.100

(Wastestream) and 729.103

(Wastestream).

These sections attempt

to define who must prepare,

sign and

submit the request

for wastestream authorization and are an

attempt

to minimize paperwork burdens.

I support that concept.

However restricting paperwork by having

wastestrearns “cease

to

exist”

is

a profoundly idiotic

idea the implications

of which are

totally unknown.

Can an original generator of hazardous waste

send

it

to

a legally authorized

treatment facility,

“Joe’s

Garage,”

and be absolved of CERCLA liability for ultimate

improper disposal because the waste “ceased

to exist?”

That

seems

a Draconian consequence

for paperwork reduction, but

is not

totally contrary to these regulations.

These concerns could have

been remedied by simply deleting the offending language,

or

replacement language focusing

on who

signs application.

I am

concerned with the majority’s reluctance

to even consider these

changes

at this early

stage of the proceeding.

My last concern

is more general

in nature and

I do not have

replacement language

to provide.

I believe

the regulations have

lost sight of

the command of Section 39(h)

to minimize “disposal”

of waste,

and

instead

the Board’s proposal

is focused on ensuring

that “good waste management decisions”

are made.

While that

is

a

laudable goal,

it is not the command of Section

39(h).

Were this

my only concern,

I would not have dissented from today’s

action.

Instead,

I would have invited better

approaches

to the

implementation of

Section 39(h).

70-169

---

—4—

As a last matter,

the role of citizens

in today’s proceeding

is left totally undefined by the majority.

Yet,

few issues

engender

as much citizen interest as hazardous waste disposal.

I

would certainly appreciate comments on the mechanisms and

opportunities for citizen participation as well as specific

language

to implement the concept.

Member of the Board

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was

submitted on the

/J’t~

day of

____________________,

1986.

Dorothy M. G~f~n,Clerk

Illinois Pollution Control

Board

70.170