ILLI
NOl
S
PCLLUTI Ot’~ CONTROL
BOARD
May 18, 1984
IN THE MATTER OF:
)
PERMIT AND INSPECTION FEES
)
R84—7
FOR HAZARDOUS WASTE DISPOSAL
)
FACILITIES (FINAL RULE)
PROPOSED RULE.
SECOND NOTICE
SECOND
PROPOSED OPINION
OF THE BOARD
(by J. Anderson):
This matter concerns a proposal by the Illinois Environ-
mental
Protection Agency (Agency) that the Board adopt a
schedule of permit and inspection fees for hazardous waste
disposal sites requiring a RCRA permit.
The proposal was
ftled pursuant to Section 5(f)
of the Environmental Protection
Act
(Act),
as
amended by P.A.
83-0938, otherwise known as
S,B. 143, which became effective on December
12,
1983.
The
relevant portion is Sections
5(f) and
5(g), which are set
forth
below.
The Agency filed
its
proposal
in
4
pieces
in R84—1:
1.
Recommended Schedule and First Statement of
Reasons, January
.3,
1984.
2.
Second Statement of Reasons, January 11,
1984.
3.
Proposed Codification and Third Statement of
Reasons, January 23,
1984.
4.
Aaend3nent
to Proposed Codification, January 23,
1984.
The Board conducted
3 public hearings, as follows:
1.
Springfield, February 16,
1984;
2.
Chicago, February
17,
1984;
3.
Chicago, February 23~1984.
During
the course
of
the hearings and afterwards, the
~oard
received written comments as follows:
PC
3.3
Standard Oil
(Indiana),
Ms. ~e1anie
S~.
‘roep~er,
February 17,
1984
58-175
—2—
PC 14
Clayton Chemical Co., Mr. Dave Wieties,
February 23, 184
PC
15
Illinois Power Co.
and Johns—Manville Sales
Corp.,
Ms.
Carolyn
A.
Lown, February 24,
1984
PC 16
Chemical Waste Management,
Ms. Sheri K.
Swibel,
February 27,
1984
PC 17
Jones
arid Laughlin Steel Corp.,
Ms.
J.
M.
Blundon,
February 27,
1984
PC 18
Hydropoll,
Inc.,
Dr. Rauf Piskin,
February 29,
1984
PC 19
Allied Chemical, Mr. Richard L. Purgason,
February 29, 1984.
On February 29, 1984,
in order to comply with the time
limit
specified
in
Section
5(f)
of
the
Act,
the
Board
adopted
35 Iii.
Adm. Code 718 as an emergency rule.
At the same
time
the
Board
opened
Docket
Number
R84-7,
and
proposed
to
adopt
Part
718
as
a
permanent
rule.
On
March
6,
1984
the
Hearing Officer incorporated
the
entire record in R84—1
into
R84—7,
so that it became in essence a continuation of R84—1.
The
emergency rules were filed and became effective on
March 13,
1984.
On March 21,
1984 the Board adopted a Final Opinion in
R84-l and Proposed Opinion in R84—7.
The proposed and emergency rules were published at
8
Ill.
Req.
3513 and 3786, March 23,
1984.
Additional public hearings were held as follows:
4.~
Chicago, March
29,
1984;
5.
Springfield,
April
9,
1984.
On April
4,
1984 an appeal of the emergency rules
in
~84—1 was filed in the Third District Appellate Court by
Allied Chemical Co.,
Jones
arid Laughlin Steel
Inc., Keystone
Steel and Wire Co.
and Northwestern Steel and Wire Co.
Following the public hearings the Board received the
foliowing additional written public comment:
PC
1
Illinois Environmental Protection Agency,
Mr. Phillip Van Ness, April
2,
1984
58-178
—3—
PC
2
Cecos International,
Mr.
Ernest C. Neal,
April
26,
1984
PC
3
Representative James McPike, April
27,
1984
PC
4
Illinois Environmental Protection Agency,
Mr.
Phillip
R.,
Van
Ness,
April
27,
1984
PC
5
Chemical Waste Management, Inc.,
Ms. Sheri K.
Swibel,
April 27,
1984
PC
6
Jones
& Laughlin Steel,
Mr. P.
N.
Schlingman,
April
30,
1984
PC
7
Illinois State Chamber of Commerce, Mr. Sidney
N.
Marder,
April
27,
1984
PC
8
Illinois Power,
Ms. Carolyn
A. Lown, April
26,
1984
PC 9
Marathon
Ci.
Co., et ale,
Mr. Andrew
H.
Perellis,
April
27, 1984
PC 10
Velsicol Chemical Co., Mr.
Jeff S.
Brown,
April
30,
1984
PC
1.
Northern Petrochemical, Ms. Catherine
Patriguen,
March 29, 1984
PC 12
League of Women Voters, Ms. Jean Peterson,
Ms. Judy Beck,
Ms. Gretchen Monti,
April 26,
1984
SUMMARY OF
TESTIMONY
AND
COMMENTS
At the first hearing the Agency presented a single
witness
an4
exhibits in support of its proposal.
At the
third hearing it modified many of its figures, and presented
the
data on which the emergency rules were largely based,
The Board received public testimony at all five hearings,
all
of which testimony opposed at least some aspects of the
troposals.
Included in the major criticisms were the
fol-.
lowing:
1.
Whether the legislature intended the Agency to
expand its inspection program, or merely to
recover the costs of its existing program
(R.
117),
or whether the Board should specify the program
size
at all;
58-177
—4—
2.
Whether the proposed inspection schedule was
reasonable;
3.
Whether the extent of federal grant funding was to
be considered in determining the Agency’s costs
(R.
360,
574,
580, 592,
596);
4.
Whether fees should be charged for actual or
projected inspections;
5.
Whether injection wells were to be included as
thazardous waste disposal facilities requiring a
RCRA permit”
(R.
93, 127,
247);
6.
Whether the volume disposed of criterion was fair
to injection wells which dispose of large volumes
of dilute waste
(R.
94);
7.
Whether to reduce the number of inspections for
facilities with good operating histories
(R.
88,
111, 267);
8.
Whether the fees should be payable on an annual or
shorter basis
CR.
73,
154,
415, 439,
452);
9.
Whether permit fees could be charged for permits
other than the actual RCRA permit
(R. 403,
409,
415, 417,
432);
10.
Whether to allow credits for shutdowns
(R.
413,
426, 558);
11.
~*ether the Agency’ s overhead was pro~er1y~cc~nnt~i
for;
12.
Whether the criteria concerning the distances from
the facility to wells or residences were fair to
on~sitefacilities where the disposal activities
are conducted on a small portion of the facility;
13.
Whether to include start—up costs;
14.
Whether to reduce first—year fees to allow for a
phase—in of the prograzn
(R,
593).
15.
Whether all of the fees should be payable on
July 1,
1984.
58-178
—5.-
SCOPE OF
FEE
REQUIREMENT
Section 5(t)
requires the Board to adopt a schedule of
reasonable permit and inspection fees for ‘hazardous waste
disposal facilities requiring a RCRA permit’.
The Board
Las
adopted a definition of ‘hazardous waste disposal facilities
requiring a RCRA permit” which interprets Section 5(f) and
determines the
scope
of the
fee requirements.
The definition
of ‘hazardous waste disposal
facility requiring a RCRA
permit’,
found in Section 718.102, reads as fol1ows~
a)
A facility as defined in 35 Ill.
Mm.
Code 720,
b)
Which requires a RCRA permit pursuant to Section
21(f) of the Act,
c)
Which includes one
of the following disposal units:
1)
A landfill receiving hazardous waste; or
2)
A waste pile or surface impoundment, receiving
hazardous waste, in which waste residues are
expected to remain after closure; or
3)
A land treatment unit receiving hazardous
waste; or,
4)
A
well
injecting hazardous waste.
d)
A facility in closure or post—closure care is
specifically excluded from this definition.
This definition elaborates two important phrases in
Section 5(f):
‘hazardous waste disposal facilities”
and
~re~quIring
a RCRA permit”.
The
former
is
broken into
two
porti.one~
‘facility’ and ‘~hazardouswaste diaposa1’~
The
Act
~ncludea
so
definition
of ‘facility”.
flowever the
teem
.*s defined in Section
720,l10~
“Pacility’ means
all
contiguot~sland and structures~
other appurtenances
and improvements
on the land used
for
treating,
storing or disposing of hazardous
waste.
A
~acilLtymay consist
of
several treatment,
storage
or disposal operational
units
(e.g., one or
more
land-
fills, surface impoundments or combinations of them).
Under this definition a ‘facility’ is an area of
land
whiCh
includes one or more treatment, storage or dispos&L
units.
It should be notea that, although the Act contains
no definition of ‘facility’,
it defines ‘site’ as a rough
58-179
—6—
equivalent of “facilityt’ as defined above.
In the definition
of “site”,
“facility”
is used in
a manner implying that it
is the equivalent of “treatment, storage or disposal unit”
in the RCRA rules.
It is thus arguable that the legislature
meant “facility” to be the equivalent of “treatment,
storage
or disposal unit”
in
the RCRA
rules,
Eowever, rather than
drawing this inference,
the Board concludes that the legis-
lature intended
“facility” to have the meaning given in the
regulations implementing the RCRA permit requirement.
The Section 5(f) fees will apply to facilities which
“require”
a RCRA permit, regardless of whether the permit
has actually been issued.
Section 3 of the
Act includes a definition of “disposal’
which relates to hazardous waste:
“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 environ-
ment or be emitted into the air or discharged into
any waters,
including ground waters.
Section 720.110 of the RCRA rules includes a similar
definition:
“Disposal” means the discharge, deposit, injection,
dumping,
spilling,
leaking or placing of any solid
waste or hazardous waste
into or on any land or water
so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be
emitted into the air or discharged into any waters,
including groundwaters.
Section 720.110 goes on to define a ‘disposal facility’:
‘Disposal facility” means a facility or part of a
facility at which hazardous waste is intentionally
placed into or on any land or water and at which waste
will remain after closure.
Paragraph
Ic) of the
definition deals with the element
of ‘hazardous waste disposal” in
Section 5(f)
(R.
127,
156).
The definition identifies
four
types of
disposal
unit which,
if present on a
facility, make the facility subject to the
fee system.
58-180
—7—
If the facility includes a landfill receiving hazardous
waste it is subject to the fee system.
This is the simplest
type of disposal which was obviously intended to be included
in the program.
Surface impoundments and waste piles are included
if
they receive hazardous waste and if waste residues are
expected to remain on closure.
Note that it does not matter
whether the residues would be hazardous
(see Secs,
724.328
and 724,358),
If the waste residues are to be removed
periodically or at closure, the lagoon or pile is a treat-
ment or storage unit which would not cause the facility to
be subject to the fee system.
Land treatment units receiving hazardous waste are
subject to the fee system as disposal units since waste
residues will remain after closure
(R.
340),
Injection wells are also regarded as disposal:
hazardous
waste
is injected into a well
so that the waste or derived
products remain in the ground.
Although the waste may be
neutralized in the formation, there is no opportunity to
examine it after this “treatment” prior to ultimate disposal;
indeed, the injection is the ultimate disposal.
It should be noted that injection wells are not disposal
units to which the RCRA permit requirement attaches; they
are,
rather, regulated by the UIC permit program,
A facility
with an injection well would not necessarily require a RCRA
permit,
in which case the fees would not be applicable under
paragraph (bY.
On the other hand,
if there were a hazardous
waste treatment or storage unit, requiring a RCRA permit,
on
the facility, the fee program would apply even though the
well itself did not require a RCRA permit
(R.
121,
303,
306),
SIZE OF PROGRAM
At the public hearings following the first notice,
a
sharp split developed as to whether the authorizing legis—
lation intended the Board to adopt fees to cover the costs
of the present inspection program,
or,
on the other hand, to
determine a reasonable
level of inspections on which to base
the fees.
This question is linked to the question,
first
raised in
the
Dissenting
Opinions of Board Members Dumelle
and Meyer,
as to whether the Board can indirectly dictate
the size of the inspection program to the legislature which
must actually appropriate the money from the permit and
inspection fund.
58-181
—8—
It should be noted that the issues concerning
the size
of the program are limited to the fees intended to recover
inspection costs:
the size of the permit program is dictated
by
the statutes which require the permits.
The permit fees
have been based on the historical record and sound projections
of the costs which will be incurred in issuing RCRA permits.
Although these costs may change due to inflation, and the
projected replacement of supplemental permits with waste—
stream authorizations pursuant to Section 22.6 of the Act,
these should be gradual changes which can be accomplished
through rulemaking should fee revenues become significantly
different from costs.
On the other hand,
the level of inspection could con-
ceivably vary from a single inspection per facility per
year,
as required by federal regulations, through 1095
inspections per facility per year, representing continuous
inspection, three shifts per day,
365 days per year.
The
actual range of proposals suggested in this record vary by a
factor of about 40 to 1.
It
is clearly necessary to know
the inspection
level to set a simple numerical fee which
will result in revenues approximately equal to costs,
The Agency proposed a program which would generate
sufficient revenue to provide 2444 inspections per year at
the facilities thought to be subject to the proposal.
There
was no requirement that the Agency is literally bound to
inspect at this level,
although the Agency intended to develop
a program that would reasonably reflect this level,
The Board
proposed
a program which would recover startup
and overhead costs to purchase and maintain equipment suffi-
cient to conduct 2444 inspections at these facilities.
The
Board proposed a fee to be billed for each actual inspection
to recover the direct labor costs.
This portion of the
Board proposal could be recovered only to the extent that
the legislature appropriated enough money from the permit
and inspection fee fund to allow the inspections to actually
take place.
The Board proposal also included a cap on the
number of inspections the Agency could bill, potentially
restricting the legislature’s ability to expand the program
while recovering costs through the fees,
At the fourth hearing the Illinois State Chamber of
commerce presented a proposal which purported to raise
sufficient revenue to recover the costs of the existing
program.
The aggregate revenue from the facilities thought
to be subject to the program was about $171,000.
This would
provide sufficient revenue for around 350 inspections per
year, back calculating from the Agency’s proposal.
These
fees would be payable regardless of whether the Agency
actually conducted the inspections.
58-182
—9—
The Chamber argued that the intent of S.B. 143 was that
the Board immediately adopt fees to recover the costs of the
existing program pursuant to Section 5(f), and to address
any expansion of the program after an economic impact study
pursuant to Section
5(gY.
The Agency disagreed, stating that
the
intent was an expanded program and that the Agency was
to “hit
the
deck running”.
Sections 5(f) and 5(g)
of the Act,
as amended by S.B.
143,
provide
as follows:
(f)
Not later than January 1,
1984, the Agency shall
recommend a schedule of reasonable permit and
inspection fees for hazardous waste disposal
facilities requiring a RCRA permit under sub-
section
(f) of Section
21 of this Act,
Not later
than March 1,
1984, the Board shall prescribe such
a fee schedule.
Such fees in the aggregate shall
be sufficient to adequately cover all costs to the
State
for the Agency’s permit and inspection
activities applicable to hazardous waste disposal
facilities requiring a RCRA permit.
Section 27(b)
of this Act shall not be applicable to rulemaking
under this Section.
(g)
The Board may prescribe reasonable fees
for permits
required pursuant to this Act,
Such fees in the
aggregate may not exceed the total cost to the
Agency for its inspection and permit systems.
These Sections include no explicit statement supporting
the Chamber’s contention; indeed, the principal division
between the paragraphs appears to be quick, mandatory action
on hazardous waste disposal facilities,
to be followed by
full rulemaking should the Board wish to impose fees for
other types of permits and inspections.
The legislative history contains nothing suggesting the
Chamber’s two—phase approach to establishing the fee program
for “hazardous waste disposal facilities requiring a RCRA
permit”.
The legislative history is confusing
in. that
S.B. 143 has a remarkable genesis from H.B, 1108 and H,B,
1257.
There are at least two passages in the record of
1.B.
1108 which suggest that the emergency that the sponsors
of the predecessors to S.B. 143 were addressing was the lack
of availability of money for an adequate inspection program
rather than the lack of money to sustain the existing program:
The amendment now becomes the Bill and what the
Bill does now because of all the publicity and lawsuit,
etc. that was filed by our Attorney General on the
58-183
—10
waste management site there
in my
district
in
Calumet
City,..we
started
out
with
a
bill
that
wasn’t
palatable
and
one
of
the
prime
reasons
for
the
first
section
is
to
require
the
Pollution
Board
to
prescribe
scheduled
and
reasonable
permit
and
inspection
fees
for
hazardous
waste
disposal
facilities.
When we had the hearings in Calumet City, we
couldn’t
pin
the
EPA
down
as
to
how
many
times
they
came
out
and
inspected
the
hazardous
wastes
that
were
coming in,
The records were really not too
clear,
so
what
we
tried
to
do
was
come
in
with
some
permanent
inspections,
for this stuff coming in, which will put
industry
on
notice
that
they
can’t
ship
anything
illegal
to a landfill that
accepts
their
landfill
plus
it
would
monitor everything coming
in
by
the
inspector
and
in
order to do that EPA said
we
need
some,
some,
teeth
and
we need some money.
So this bill now, the way it
is,
is going
to permit the EPA Control Board to determine
how many inspectors, how they can tighten
it
up,
and
provide
the
inspection
fees
that
they
will
get
from
the landfill owners
to conduct the necessary inspections
to make it safe,
(Rep. Giglio,
House Committee on
Energy, Environment and Natural Resources hearing on
H.B.
1108, May 6,
1983;
Exhibit 26,)
What it says is that the Board will impose,
has to
impose,
inspection fees on landfill disposal sites.
We’re all aware that there are problems out there.
The inspection system is not working adequately to
enforce restrictions on the disposal of hazardous
waste.
This will ensure that there’s the money available
in the Agency to do the job.
(Rep. Currie,
debate on
H.B,
1108,
May 26,
1983; Exhibit 8.)
There is a single statement on
H.B.
1108 which could be
construed as indicating the contrary intent:
The intent is
to allow the Board to adopt the regional
fees that apply only to the actual cost.
We don’t
intend for the Illinois Environmental Protection Agencies
to expand their bureaucracy by the industrial
fees.
(Rep.
Giglio,
Debate on FLB. 1108,
May 26,
1983;
Exhibit 8.)
One problem with construing this to require funding of
only the existing inspection levels is that the statement
was addressing the entire bill, rather than just a
provision
for emergency fees.
An equally likely interpretation is that
Rep. Giglio was addressing the limitation to “actual
cost”.
58-184
—11—
The
Board
concludes that
both
the
plain
meaning
of
sections
5(f)
and
5(g)
of
the
Act
and
the
legislative
history
suggest
that
the
inspection
fee
program
is
not
to
be
limited
by
the
existing
program,
but
that
the
legislature
intended
the
Board
to
act
quickly
to
provide
fees
which
would
recover
the
costs
of
a
reasonable
level
of
inspections
at
hazardous
waste facilities.
This still leaves unanswered the question
of
whether
the Board should set a fee
system
to recover the
costs
of
a
certain
level
of
inspections
on the assumption
that
the
legislature
will
appropriate
money
from
the
fund
to
support that level of inspections.
There is no indication
that
the legislature
had
any such intention to delegate its
appropriation discretion.
sec. 22.21 of the
Act
clearly
states that expenditures in the
permit
and inspection fund
are subject to legislative appropriation, rather
than
being
a revolving fund.
The Agency’s proposal recovers the costs of a program
of 2444 inspections per year, while the Chamber’s proposal
recovers
for
about
350 inspections.
Neither
of these
proposals
would
recover
revenues
approximately
equal
to
inspection costs unless the legislature appropriated money
to
support
a
program approximately equal to the level the
program
assumes
•
If
the
Agency’
s
proposal
were
adopted,
but
the
legislature
appropriated
only
enough
to
support
the
existing program, a substantial surplus would result in the
fund.
If
the
Chamber’s proposal were adopted, the legislature
would have to appropriate from general revenue if it wished
to
expand
the program.
In either case the
fee
would fail to
meet the statutory mandate to recover ‘all costs’
(section
5(f)).
The first notice proposal, with its inspection fee
charged
on
the basis of actual inspections, would provide
for
some
adjustment
in
revenue
to
match
changes
in
program
level
dictated
by
the
appropriation
process
•
However,
the
startup
and
overhead
costs
are
fixed
at
a
level
to
recover
the costs of a 2444 inspection program.
The first notice
proposal would fail to generate revenue approximately equal
to costs if the legislative appropriation fluctuated signifi-
cantly from the 2444 inspections program, or any
program
level
for
that
matter.
In
an effort
to
respond
to
fluctuations
in
appropriations,
the
Board
could
be
in
continual
rulemaking
following each legislative session in order to matoh fees
to the appropriations.
And, under the full
and
lengthy
Sec. 5(g) rulemaking procedures, the rule might not be filed
in time
for
the
Agency
to utilize the funds appropriated
in
that
fiscal year.
58-185
—12—
An obvious remedy would be to devise a per inspection
fee which included the overhead, and
possibly
the
startup,
costs.
Exhibit
27 illustrates this approach.
The legislature would
control the program size
by
appropriating
money for personnel and
equipment requested by the Agency in its budget.
The Agency’s
budget proposal would indicate
the
size
of
the
inspection
program the Agency thought was appropriate for the coming
year, and detail the costs anticipated in carrying out the
program.
The budget would also project the revenue antici-
pated from the program.
The year’s inspection program would
be finalized in the appropriation process.
The Agency would
recover costs by deploying the personnel and equipment and
billing for actual inspections conducted.
One problem with this approach is that certain overhead
items must be purchased in large pieces:
lab equipment and
personnel.
This fee approach would recover the costs of
fractional equipment and workers at certain program levels.
This could throw the cost and revenue out of balance, since
these
items must be purchased in whole units.
Another
problem
is
that
the
Agency
objects
to
billing
on
a
per
inspection
basis,
The
administrative
costs
claimed
by
the
Agency
would
be
a
significant fraction of the projected
revenue.
A
totally
different
approach
is
illustrated
in
Exhibit 28.
The
Board
has
proposed
for
second
notice
a
modified
version of
Exhibit
28.
Section
718.321
sets
relative
inspection
fees
to he
billed
by
the
Agency.
The
relative
fee
table
is
based
on
the relative expected cost of inspections at facilities of
each
surveillance
level,
The
Agency
proposed
to
conduct
260,
52 and 26 inspections
per year at the three surveil—
lance
levels,
respectively.
This
is
a
relative
ratio
of
10
to
2
to
1.
The
relative
costs
of
inspections
at
each
facility
in each
surveillance
level
is roughly the same
as
the relative
frequency
of
inspections,
The
ratio
of 15 to 2.5 to
1
reflects
greater time projected to be spent
at
higher
sur—
veillance level sites,
Section
718,321
and
Appendix
A
provide
a
methodology
whereby
the Agency computes a fee for each site, based on its
appropriation and the number of facilities in each surveillance
level
as
of
the beginning
of
the
year.
The
resulting
fees show
the
ratios
specified in the Board
rule,
and are at a
level
which recovers the state costs,
assuming the number and
distribution
of
facilities
will
not
change.
58-186
Each
year the Agency’s budget proposal would reflect
the personnel and
equipment
to
conduct
the
fee supported
inspections at the level
it feels
is
appropriate,
After
legislative review and completion of the appropriation
process,
the Agency will compute the fees based on the
number and distribution of facilities as
of July 1.
The
Agency will
send
out bills showing the computation of the
fees and the quarterly payments expected from the facility,
The fees will be payable quarterly as specified by the
Agency, but in
no
event less than 30 days
after
the bill is
sent.
The
methodology
allows the legislature
to
estimate
the
effect of its appropriations
on both
the level of
fees and
the
size
of
the
program.
Costs and
revenues in the
appro-
priation will
be based on projections available when the
budget is
proposed.
These,
of
course,
may change
during the
fiscal year.
Facilities may be added to or dropped from the
fee-supported program, or as they change surveillance level,
Section 718.321(c) prohibits recalculation
of
the
fees for
other facilities
in
the program when these happen during the
fiscal year.
Such recalculation would be administratively
costly and would make the fees too
variable for the
subject
facilities
to
plan,
since
a change to one facility would
change everybody’s fees,
The limitation
on
adjustments
could re8Ult
in
a
surplus or shortfall
of
revenue
which may
require legislative action through a
supp1~ental
appropria~
tion if it is serious enough.
RELATIVE RATIO
Section 71~.32lspecifies the relative fees to be
charged faciltties of each surveillance
level,
These ratios
are drawn from the Agency’s proposal as
developed
at the
first three hearings and summarized in Exhibit 13.
Although
the ratios are derived from a proposal to establish a certain
program leve1~they in no way fix the program level.
There are several ~ratioswhich
could
be
used
to
determine the relative ratios.
These are*
1.
The number of inspections;
2.
Travel time;
3,
Num~rof samples;
4,
Field
labor
hours
used
in
actual
inspections.
5~-1S7
•~14
—
The
simplest
ratio
is
the
number
of
inspections
at
each
surveillance level.
The Agency proposed to inspect the
three surveillance levels at an annual rate of 260,
52 and 26
inspections.
This produces a ratio of 10:2:1.
The first
notice proposal allocated the inspection overhead costs and
startup
costs
according
to
this
ratio.
The
Agency’s
calculations in Exhibit
13 did
so also.
The equipment purchase and overhead costs are mostly
for vehicles and lab equipment and personnel.
Vehicles could
be allocated according to travel time,
and lab equipment and
personnel according to sampling
effort.
The
Agency’s
proposal
assumed that travel time would be the same for all sites and
that
sampling would be proportional
to
the
number
of
inspections.
With these assumptions
the vehicle and lab costs are forced
to the 10:2:1
ratio.
It
is quite possible,
however, that both
would tend to follow
field
labor
hours
in actual practice: the
inspectors would tend to drive the vehicles around the sites,
and would tend to take more samples if they were at a site for
a longer time.
The field labor hours depart from the ratio of inspections
because the Agency proposes to spend more time per
inspection
at the higher surveillance level
sites, and to spend more
time
on
paperwork
at these sites.
The direct field hours per
inspection
proposed
by
the
Agency
are
12
hours
per
inspection
at “continuous” sites,
10
hours
at
“intensive”
and
8
hours
at
“routine” sites.
Multiplying by 260,
52 and 26 inspections
per year yields 3120,
520 and 208 field hours per year at
facilities
of
the
three
surveillance
levels.
This
is
a
ratio
of
15:2.5:1.
To summarize,
it appears
that equipment costs may be
best allocated according to the relative ratio of inspections,
or 10:2:1, while field labor costs may be
best
allocated
according to the ratio of
15:2.5:1.
To determine the
overall
ratio of the program
one needs to assume an actual
dollar amount for labor costs, and to assume an actual
inspection level
from which
to develop total
labor and
equipment needs.
However, this is what the Board has
determined to leave to control through the appropriation
procesS.
The
2444 inspection program outlined in the First
Notice Order and Exhibit
13 allocated inspection, overhead
and start up costs costs to the three surveillance levels
as follows:
$133,400, $23,960 and $10,940.
This is a
ratio of about 12.2:2.2:1.
This
is the largest program
suggested in this record.
58-188
—15—
On the other hand,
a program equal to the existing
program would require only minimal equipment costs, since
the equipment already exists to inspect at this level.
The cost would be largely the field labor costs of conducting
the
inspections.
Such
a
program
should
exhibit
a
ratio
of
15:2.5:1.
The ratios of costs of intermediate sized programs
should lie between these extreme examples.
Appendix A to the Order shows the computation of fees
for a $500,000 annual program, based on the 15:2.5:1 ratio,
assuming the distribution of facilities indicated by the
record.
The following table compares the annual fees to
those from the same sized program with a 12.2:2.2:1 ratio:
Surveillance
15:2.5:1
12.2:2.2:1
Level
5
$54,800
$54,100
3
9,100
9,800
1
3,600
4,400
The fees for each surveillance level change by only
$700 or $800 per year at this program level over
the
range
of
possible ratios.
This is probably a lot less than the
uncertainty involved in estimating the Agency’s actual
costs which will be attributable to these sites.
The Board has decided to base the relative ratios on the
field labor hour ratio of 15:2.5:1.
This is
a simple number
to derive from the relative number of inspections and the
direct field hours at each surveillance level.
It is the best
approximation for a small program.
At higher program levels
actual equipment costs may tend to follow this ratio instead
of
the
number of inspections.
TYPES OF COSTS TO BE RECOVERED
Section 5(f) of the Act provides in part:
Such fees in the aggregate shall be sufficient to
adequately cover all costs to the State for
the Agency’s
permit
and inspection activities applicable to hazardous
waste disposal facilities requiring a RCRA permit.
The Board construes the phrase “hazardous waste disposal
facilities requiring
a RCRA permit” to mean the same thing
as
in
the first sentence of Section 5(f), which phrase has
been discussed at length above.
The Board construes
the
58-189
—16—
sentence above to require recovery of all costs for permit
and inspection activities applicable to
such
facilities,
not
just costs
for RCRA permits or inspection of the hazardous
waste
disposal activities.
This is what the letter of the
statute
says,
and
the
Board
sees
no
reason
to
depart
from
the
plain
meaning.
The
Agency has presented cost
data
only
for
waste
permits
and waste inspections at the subject
facilities,
It
seems consistent with the statutory intent to limit cost
recovery to waste permits and inspections,
as
opposed to
permits issued by, and inspections carried out by,
other
Agency Divisions such as Air.
The Board has noted
this
limitation
in
the introductory language to Subparts B and C.
The Board also construes Section 5(f) as allowing
recovery only of routine “preventive maintenance” inspections
which
can
be
planned
and
budgeted.
Costs
of
extra
inspections
related
to an investigation in anticipation of an
enforce-
ment
action or in response to an accident or
spill have not
been
allowed in the projections, and should be
taken from
general
revenue rather than being controlled by
the size of
the permit and inspection fee fund.
The Agency may however
address
complaints and accidents in the
course
of routine
inspections.
The Board also notes that the fees are
not
lowered
for “good” site management, but rather
are based on
the
level of risk as determined by the criteria,
Good site
management is expected.
And, while a good
self—monitoring
program is obviously beneficial
for all concerned, it is an
adjunct
to, not a substitute
for,
a good
inspection
program.
The
Board does not construe Section
5(f)
as
necessarily
requiring
the recovery of start—up costs.
However,
the fee
system
will recover these costs to the
extent the Legislature
appropriates for them from the permit and inspection fee fund,
The
Board
expects the Agency to maintain detailed records of
its fee
supported activities,
These
rules
may
require
adjustments
if costs prove to be
significantly out of line with
revenues
from the fees.
The
Proposed Opinion of March 21,
1984
in R84-7 is
withdrawn.
Because of their length, the
Second
Proposed Opinion
and
Order will not
be published in the Opinion volumes, but will
be
distributed to participants.
The final
Opinion and Order
will
be
published.
This Second Proposed Opinion
supports the Board’s
Proposed
Rule,
Second Notice Order of this same
date,
This
Second
Proposed
Opinion is limited because
of time constraints
in
adopting
a final rule to replace the emergency
rules
by July 1,
1984,
A more complete Opinion will be adopted
supporting the
Final
Order, Adopted Rules.
58-190
11’-
IT
IS
SQ ORDERED.
Board Members
J,D,
Dumelle
and J.T. Meyer concurred.
I, Christen L.
Moffett,
Clerk of the Illinois Pollution
Control
~
hereby
certify
that
the above Opinion was adopted
on the
_______
day of
1~~-
,
1984
by
a
vote
of
4~J)til
Chriltan L. Moffett,ic~Ierk
Illinois
Pollution Control Board
58.191
