ILLINOIS POLLUTION CONTROL BOARD
June
14,
1984
IN
THE MATTER
OF:
)
WASTE
DISPOSAL SITE
)
R81-18
CHIEF OPERATOR PRIOR
)
CONDUCT CERTIFICATION:
)
35 ILLS AD!1~
CODE 745
)
PROPOSED RULES
FIRST_NOTICES
PROPOSED OPINION OF THE
BOARD
(by J~Anderson):
HISTORY TO DATE
The rules adopted for first notice today are the third draft
of rules originally
proposed by
the Board June
10,
1981.~
The
docket was
originally initiated
by the Board to partially imple-
ment Section
22(b)
as amended by
P~A~81—1484, providing that the
Board may
establish
~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~sprior
experience in waste management
operations~
The Board
may
provide for denial of
certification if the pro-
spective 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 in the
operation of
refuse
disposal facilities or sites;
or
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
disposal of any hazardous
waste~
This rulemaking
was
initiated by the Board~sown June 10,
1981 proposal to
add a new Part IV to Chapter
7:
Solid Wastes
First notice
of this proposal was published
in
5
Illinois
58~369
Register
7939,
August
7, 198L
Hearings were held
in this
matter
in Chicago on August
21
and September
25,
1981 and
in
Springfield
on August
26,
1981, and six public comments were received~
On May
13,
1982,
the Board adopted a revised set of
rules in
codified form for first notices
This proposal was
published in
6
Illinois
Register 6523,
June
4, 1982~ Hearings
were held in
Chicago on July
8,
1982 and in Springfield, on
July 28,
1982, and
seven public comments were received.
On December 21,
1982 the
Department of Energy and Natural Resources filed a
pre-print of
its study of the “Economic Impact of Proposed Regulation R81—18:
Certification of Waste Disposal
Site
Owners and Operators,” Doc.
No.
83/04,
January,
1983
(hereinafter
“EcIS).
As hearing
participants and comrnenters had suggested major revisions in the
proposal, economic hearings have been delayed until a new draft
incorporating necessary changes could be developed.
P,A. 83~0425,effective September
7,
1983,
amended the
enabling
legislation on which this
rulemaking was based.
Section
22(b) was
deleted, and a new Section
22~1was added.
The
difference
between old Section 22(b)
and new Section 22.1 is that
the new
section makes rulemaking
mandatory, rather than
per~
missive, providing that “By July 1,
1984, the Board shall adopt
standards..~” (emphasis added),
As the Board noted in its May 13,
1982 Proposed Opinion,
p.
2,
in
this matter,
since its inception
progress in
this pro~
ceeding
has been retarded by the desire
of both the Agency and
industry that this certification proceeding not
set
up limited-
life definitions and procedures which would need to be dismantled
in the course of the modernization of the Board~sChapter
7 and
9
solid and special waste regulations,
since codified
as 35
Ill,
Adm, Code 807 and
809
(See ~
Order of October
22,
1981).
More
specifically, the Board stated:
“Some confusion has arisen concerning the scope of this
rulemaking.
It is the Board~sintent
in this proceeding only to
prescribe standards for what is essentially a certification
that
an applicant~sprior criminal and administrative history of vio-
lations do not ~alif
the applicant from operating
a refuse
disposal site or facility.
In short, these rules prescribe
procedures for acting upon an applicant~s~g~ive
qualities.
The Illinois Environmental Protection Agency (Agency) and other
commenters have suggested that this rulemaking should also
establish standards for defining ~~ti~e
qualities such as
technical education, training, and years of work experience, much
as is the case for wastewater treatment plant operators.
The
Board has not done so for a very practical reason:
the state of
uncertainty and flux existing concerning Illinois waste disposal
regulations.
In its Septeimher 23,
1981 comments, the Agency included an
incomplete “draft” set of technical certification
rules, which
58~37O
was
not “officially submitted for
consideration,.., but included
for
informational, purposes”.
The draft was
admittedly incomplete
in part because education
arid experience
requirements
were to be
based on
la~dfill classifications which
were part of the
originally
proposed Chapter
7 revisions.
However, R80—20 has
been
in abeyance while waiting for a
revised proposal.”
The R80~20docket was dismissed in October,
1982 as no
revised proposal was filed.
Successor dockets
R82~21, 22 were
dismissed June 16,
1983 on the Agency~swithdrawal of its
December 30,
1982 proposal concerning permitting
procedures.
At
that
time, the Agency had anticipated
its submission
of an
amended and
expanded proposal to the Board
by
January
1,
1984.
That proposal was received by
the Board
on May 31,
1984 and
docketed as
R84—17,
In the Matter of:
Permit Requirements and
Operating Standards for Owners
and
Operators of Class
I and Class
II Landfills, and for Generators and Haulers of Special Waste.
Given
the
difficulties
in development of
a proposal
for
permits
and
operating standards,
the
Board cannot fully implement
P.A. 83—0425
by the July 1,
1984
deadline.
In partial
implementation
thereof,
however,
the
Board will proceed with this
“orior
conduct” certification of what
the Board will denote as
a
s~te’s
“chief operator”.
The Board will
not expand the scope of
“good conduct”
certification to all
personnel of
a waste disposal
operation
at this time,
To do so would invalidate the existing
EcIS by bringing
countless additional
individuals into the
purview
of this regulation,
thus preventing
its adoption pending
performance
of
a new EcIS.
Technical training
and
“good
conduct”
certification
for these other personnel
will be addressed in a
Board
proposal
in docket R84-3,
As, once again,
the Board has made
substantial
changes in
this proposal,
the Board will initiate a new
first notice
proposal,
and will conduct consolidated merit and economic
hearings.
APA INITIAL REGULATORY FLEXIBILITY ANALYSIS
While the existing hearing record contains no information on
this point,
it believes that some companies subject to these
rules may be small businesses within the meaning of Section 5.01
of the APA.
The rules themselves contain a clear statement of
compliance procedures~ No professional skills other than
clerical capabilities are required for compliance.
If there are such small businesses which feel they would be
impacted by this proposal, the Board requests that they comment
and identify themselves as small businesses.
58~3?1
THE PROPOSED RULES
The Board will address only major changes between the
cur-
rent and former proposal.
Subpart A:
General Provisions
Section
745.101
Scope and Applicability
One
major change which has been made
is to delete the pro-
posal that
owners become certified.
Industry objected to the
rules as
drafted because of their complexity
as applied to the
multitudinous
shareholders
in major
corporations.
The ECIS
identified
this provision as imposing a
great
cost burden, and
questioned
the benefits.
The Board
has therefore eliminated the
requirement at
this time.
Section
745.103
Compliance Dates
The
Agency as well
as industry
criticized the prior proposal
as being
unnecessarily complex and
confusing,
so
it has been
simplified.
See also section 745.124.
Section
745.110
Definitions
Throughout this proceeding,
the Agency and other partici-
pants have stressed the need for uniformity between the
definitions
in this Part and the remainder of Subtitle G,
The
Board
has incorporated several definitions contained in the
R84-17
proposal, namely those for
“chief operator”,
“owner”,
“waste” and “waste disposal site”~
(These will be addressed
early on in the R84~17proceeding,
as well,
in order to flush
out any
areas of basic disagreement.)
In defining “chief operator”,
the Board has adopted
a
variant
of Agency~sdefinition of “operator”.
The
distinguishing
word
“chief” has been added in anticipation
of
the R84-3
certification of other waste disposal personnel.
In researching
the area, the Board has noted that industry
and the regulatory
agencies of
other states refer to such
personnel as “operators”,
in
the same way that personnel working
in sewage treatment plants
are referred to as “operators,”
even if
they do not have overall
supervisory responsibilities,
Subpart B:
Prohibitions
Section 745,121
Prohibition
In the previous proposal, given the requirement that owners
be
certified,
the certification was site—specific.
Any chief
operator (“manager”
in the previous proposal) would have been
required to be re~certifled when he changed employment.
Since
58~372
certification was site-specific,
it would have been an implicit
part of the Agency~sdecision whether a person was qualified by
background
to handle
only non-hazardous waste, or hazardous waste
as well.
As certification has now become “generic,”
going with a
person rather
than a site,
it
was necessary to make consideration
of hazardous
waste
disposal capability explicit.
The Board has
not required separate certification to handle special waste,
because this category is not dealt with
in the R84—17 proposal,
and also because legislative proposals are pending to abolish the
special waste class
in whole or in part.
Section 745.123
Revocation of Waste Disposal Permit
Section 745.124
Defense
These new sections
a) articulate a cause of action and b)
provide a “grace period” to allow for replacement of
a certified
chief operator.
Subpart
C:
Applications for Certifications
Several simplifying changes were made
in this
Subpart
once
the determination was made to delete owner certification.
Section
745.141
Applications
The
applicant is additionally
asked to state any intent to
dispose
of hazardous
waste
as this could affect a certification
decision,
Subsection
(e)
formerly
(d)1 has been clarified to
ensure
that an applicant
has
an
opportunity to report pending
appeals
of convictions,
as well
as
pending actions against him.
Subpart D:
Agency Action
A section which formerly required notification of the same
government
officials
who receive notice of hazardous waste permit
applications pursuant
to Section
39.3 has been deleted.
This
section no
longer makes
sense,
given the shift from
site
specific
to generic certification,
Section 745.163
Time Limits
in response to an Agency request, the Board has limited the
life of a
“default”
certification, adopting the one year limit of
a Section 38
“default” variance,
Section
745.183
“Duration and
Transferability” back—references this provision.
58~373
—6—
Board Members J. Marlin and J.Thedore Meyer abstain.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion was adopted on the
/4~~ayof~9v.i.~
,
1984 by a vote of
4~-O
~c
/;‘7.
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
58-374