ILLINOIS

POLLUTION

CONTROL

BOARD

August

2,

1984

IN THE MATTER OF:

)

)

PERMIT AND INSPECTION FEES

)

R84~7

FOR HAZARDOUS WASTE DISPOSAL

)

FACILITIES

(FINAL RULE)

)

FINAL ORDERO

DISMISSAL OF PROPOSAL

FINAL OPINION AND ORDER OF THE BOARD

(by J. Anderson):

On May 18, 1984 the Board sent this proposal to second

notice0

The Joint Committee on Administrative Rules met on

June 12, l984~ Pursuant to the staff~srecommendation, the

Joint Committee recommended that the Board seek legislative

clarification as to the definition of “facility”

in Section 5(f)

of the Act0

Acting on its own motion,

the Joint Committee

also objected to the rulemaking0

On July

30,

1984 the

Governor signed P0A0 83~1235 (HOBO

3036) which repealed the

statutory authority for this rulemaking0

As is more fully

set out below, the Board refuses to withdraw or modify the

rules

in response to the objection,

but will withdraw the

rules

in response to P0A0 83~l235~

The specific objection is

as follows:

The Joint Committee objects to the Pollution Control

Board~srule on hazardous waste permit and inspection

fees because the rule is not within the intent of the

statutory authority upon which it is based0

Section 5(f) of the Environmental Protection Act

(Supp0

to 111w Rev0

Stat0

1983,

ch0

111 1/2, par0

1005(f))

mandates that the Pollution Control Board prescribe a

“schedule of reasonable permit and inspection fees for

hazardous waste disposal facilities requiring a RCRA

Resource

Conservation and Recovery Aet~permit0”

These fees, in the aggregate, are to cover all the cost

of the Environmental Protection Agency~spermit and.

inspection activities applicable to hazardous waste

disposal facilities requiring a RCRA permit0

The Board~sproposed rule, however, sets forth no

“schedule” of inspection fees0

Rather, a proportion is

established between three categories of inspection

levels, in which each facility will be placed depending

The Board acknowledges the contributions made by Morton

F0 Dorothy as Hearing Officer and administrative assistant

responsible for this rulemaking0

---

upon the activities occurring at the facility.

At the

beginning of each fiscal year the Agency is to multiply

the

number

of facilities in each category times a value

assigned to that category,

The result is divided into

the amount appropriated by the legislature for the

Aqency~sinspection activities for that fiscal year.

The quotient is then multiplied times

the values assigned

to

each inspection category to determine the fee for

that

category

of

facility

for

that

fiscal

year.

Because

the

amount

of

the

fee

varies

with

the

number

of

faci:Lities

and the yearly amount

of

appropriations,

no

f

cc

“schedule” has been set,

Furthermore, since no fee

schedule has been set,

it is indeterminable whether the

fees are reasonable as required by the Act0

Therefore,

the Joint Committee objects to this rule because it is

contrary to the intent of the statutory authority upon

which it is based.

As

adopted

in

P,A,

83-0938, Section 5(f)

of

the Act read

as follows:

Not later than January

1, 1984,

the Agency shall recom-

mend a schedule of reasonable permit and inspection

fees for hazardous waste disposal facilities requiring

a RCRA permit under subsection

(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,

SectIon 22.21

of

the Act read as follows:

There is hereby created

in

the State treasury a special

fund to be known as the Environmental Protection Permit

and

Inspection

Fund0

All

permit

and

inspection fees

collected

by

the

Agency

pursuant

to

subsections

(f)

and

(g)

of Section

5 of the Act shall be deposited into the

fund,

In addition to any monies appropriated from the

General Revenue

Fund,

monies in the

fund

shall be

appropriated

by

the

General Assembly

to

the Agency in

amounts

deemed

necessary

for

permit

and

inspection

activities.

Thus,

Section

5(f)

required

that

the

fees

“adequately

cover

all

costs”;

yet

Section

22.21

required

the

General

Assembly to appropriate funds

out

of

the fee

revenue.

This

posed

an inherent difficulty

in

that

Section

5(f)

mandated

a

59~328

---

single

rulemaking,

which

was

to

he

completed

by

March

1,

i~84,

and

which

was

to

establish

a

fee

system

to

“adequately

cover

all

costs”.~

However,

the

General

Assembly

had

not

appropriated

funds

for

the

inspection

program

for

fiscal

1984—1985,

or succeeding

years,

so that

the

Board

had

to

project

what

the

costs

would

be,.

With

respect

to

the

inspection

fees,

the

Board

was

unable

to

project

the

costs.

Possible program

sizes

varied

over

a

wide

range0

A simple annual

fee could be

set

only

if

the

size

of the program

were

known.

Yet,

this

was

to

be

determined

by

the legislature later,

The Board

adopted

the

appropriation-based

proposa1~

to avoid this dilemma0

With

respect

to the permit

fees,

the Board was

able

to

project future

costs from past performance and set

a simple

dollar amount for the quarterly

fees0

The objection

did not

logically

apply

to

the

permit

fee,

The

inspection

fee

schedule

was

to

he

computed

by

the

Agency

each

year

based

on

its

appropriation,

The

rules

specified

the

schedule

completely

once

the the

appropriation

and the

number

and

distribution

of

facilities

were

known.

The fees were reasonable in the sense that the rules

categorized sites according to

environmental

risk, and

collected a greater fee where more

risk

existed0

The relative

ratios were based on relative

inspection costs

which were

reasonable based on the comparative

risk,

Section

5(f)

of the Act did not require

a specific

dollar amount0

The absolute amount

of

the

fee for each

facility could be estimated simply

from

a

proposed

appropria-

tion,

and

the number and distr:Lbution of facilities,

This

could be estimated

in the appropriation process

so that

legislators would

have

known the

impact of

the

appropriation

on specific facilities,

The

Board

refuses

to

withdraw

or further

modify

these

rules

to

meet.

the Joint Committee objection,

The

second

notice rules

met the statutory intent better than the simple

annual fee schedule

suggested by the objection,

On

July

30,

1984 the Governor signed :P0A,

8:4-1235, which

repeals Section

5(f)

of

the

Act.

(Exhibit 35),

Accordingly

the

Board

will

vacate its Order

of

May

18,

1984

and will

dismiss this

rulemaking.

IT

IS

SO

ORDERED,

59~329

---

—4--

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution

Control

Board,

hereby

certify

that

the above

Opinion and

Order

were

a~opted

on

the

~

day

of

~

1984

by

a

vote

of

~-o

,

~

Illinois

Pollution

Control Board