ILLINOIS POLLUTION CONTROL BOARD

October

12,

1984

IN

THE MATTER OF:

)

FINANCIAL ASSURANCE FOR

)

R84-22

CLOSURE

AND

POST

CLOSURE

)

CARE

OF WASTE DISPOSAL SITES

)

ORDER

OF

THE

BOARD

(by

J.

D.

Dumelle):

This matter comes before the Board upon a September

27,

1984

motion for review of Hearing

Officer’s

Order

filed

on

behalf

of

Illinois Power Company

(IPC).

IPC

requests that the Board

reverse the order entered

by

the

Hearing

Officer

on

the

record

at

the September 24,

1984 hearing in this matter.

IPC argues that,

given the lack of adequate notice and meaningful opportunity

to

comment which was provided on certain issues,

these issues should

be severed

from

consideration in this proceeding.

The Hearing

Officer denied

this

motion and directed that any participants who

wished to address the Board~sauthority to promulgate regulations

concerning the issues objected to should do so by submitting

written

comments to

the

Board or by submitting testimony at the

hearing held

September

28, 1984 in Carbondale.

The

regulations

under consideration in this proceeding were

made available

f

or public comment by their publication

in

8

Ill.

Reg.

14145

(August

10,

1984),

The Proposed Regulations stated

that no permit would be required ~‘f

or

any person conducting a

waste-~storage,

waste-treatment

or waste disposal operation for

wastes

generated

by such person~sown activities which are

stored,

treated

or disposed within the site where such wastes are

generated~’

(Section

807,202(b),

8

Ill.

Reg.

14155, August 10,

1984),

They

also provided that the closure and post—closure care

requirements contained in Subpart E of the Proposed Regulations

would

apply only

to

‘~theowner and operator of

a waste management

site

required

to

have

a permit pursuant to Section 21(d)

of the

Act or

Section

807,202,”

Section 807,501(a)

of

the Proposed

Regulations,

8

Ill.

Reg.

14160

(August

10,

1984),

Two

recommendations

for

amending proposed Sections

807~202(b)

and

807.501(a)

were made orally at hearing by the

Board

Assistant who

was

assigned to assist in the drafting of the

proposed regulations.

IPC

argues that these recommendations

could dramatically

alter

the scope of this rulemaking, but that

they were

stated in such

broa~ terms

that

the

public

has

not

been

provided with adequate notice

of

what

regulatory

action

the

Board

intends to take or with any meaningful opportunity to comment.

—2—

IPC further argues that these two provisions,

as

published

for “first notice”,

Sections

807.202(b) and

807.501(a)),

accurately reflected the statutory mandate of Section

21(d)

of

the Environmental Protection Act

(Ill,

Rev. Stat.

1983,

cli.

111½,

§1021(d)~

Since

the preamble which accompanied the

publication

of the Proposed Regulations

in

the Illinois Register

indicated

that only

amendments

concerning definitions and permit require-

ments

to

be

considered

in this rulemaking would be

those “to

reflect the terminology of Section

21(d)”

(8

Ill. Reg. 14146

(August

10,

1984)

no

further changes are necessary.

As the Hearing Officer properly pointed out in

the

September 24th Order,

neither the Environmental

Protection

Act nor the Mministrative

Procedure

Act

(APA)

requires that possible revisions raised and dis-

cussed at hearing be

publicly

noticed,

Under

Section 28 of

the Act,

the Board has the

authority

to ‘revise the proposed regulation before

adoption

in response to suggestions made at hearings, with-

out conducting a further hearing on the

revisons.

(Iil~Rev~Stat,

1983,

ch,

111½, par.

1028).

At

35

111. Mm,

Code 102.22:

Revision of

Proposed

Rulemaking, this authority is restated with the

further

requirement

that

the

Board

specify ‘the

portions

of

the

final

form

of

the

regulations

that

differ

from

the

proposal on which the hear-

ing

was

held

.

‘.

The

APA anticipates

changes

in

the text of the rules as proposed

at

First

Notice

in

that

it

requires

the

agency

adopting

the

rules

to

notify

the

Joint

Committee

on Mministrative Rules of

such changes.

(Ill.

Rev~Stat, 1983,

ch,

127,

par.

1005.01(b)(1),

*

*

*

Both proposed Sections

807.202

and

807.501 were

published

for First Notice,

adequately

notifying

the

public

that

the

existing

Section

807.202 and

the new Section 807.501

would be considered at

hearings

Since determining which facilities

legally require permits is fundamental to the

rulemaking

and both the Sections addressing permit

and closure plan requirements were published,

the

public was put on notice that these issues would

be addressed at

hearing, which they were,

It was

at the very first hearing in this matter that the

suggestions and rationales for including judicial

interpretations

of Section 21(d)

in the permit

requirement

rule

and requiring closure plans were

addressed.

There is no statutory requirement that

the

language

proposed

for

First Notice be

identical

to that which

is

adopted at Second

Noticed

That would defeat the purpose of hearings.

60-302

---

—3—

Furthermore,

the Board has not,

as

of

yet,

taken

any

position

on

whether

the

recommended

changes

should

be

made

final.

The

recommendations

made

by

a

Board

Assistant

became

part

of

the

record

in the

case,

subject

to

cross-examination,

comment,

or

rebuttal

testimony,

as

the

hearing

officer

properly

allowed

and,

indeed, requested.

As

with

any

rulemaking,

if

the

Board

decides

1o modify

the

rules

as

presently

proposed,

it

will

at

that

time

determine

whether

the

modifications

so

alter

the

proposal

as

to

deny

the

public

its

full

due

process

rights,

and

if

the

Board

determines

that

it

has,

it

will

take

appropriate

action.

The

Hearing

Officer’s

September

24,

1984

Order

in

this

matter

is

hereby

affirmed.

IT

IS SO

ORDERED.

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution Control

Board,

hereby

certify

that

the

above Order was adopted on

the

j?~day

of

~

,

1984 by

a vote of

—,

~

P~

Dorothy

M.(’)Gunn,

Clerk

Illinois Pbllution Control Board