ILLINOIS POLLUTION CONTROL BOARD

May 13,

1982

IN THE MATTER

OF:

)

WASTE DISPOSAL

SITE OWNER/OPERATOR AND

)

R81-18

MANAGER PRIOR CONDUCT

CERTIFICATION:

)

ILL.

ADM.

CODE

TITLE 35, SUBTITLE G,

)

CHAPTER I, SUBCHAPTER

g~

)

PROPOSED RULE,

FIRST

NOTICES

OPINION OF THE

BOARD

(by

J.

Anderson):

HISTORY TO DATE

Section 22(b) of the Environmental Protection Act provides

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~s

prior experience

in

waste management

operations.

The Board may provide for denial

of

certification if the

prospective 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 re-

fuse 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,”

Section 39(h) provides that prior to issuance of an RCRA permit

or permit “for the conduct of any waste-transporation”, that the

Agency evaluate “the prospective operator~sprior

experience in

waste management operations”.

The Agency

is given authority to

deny the permit

if the prospective operator, or one of its

employee or officers,

has a history of

misconduct identical to

that

in Section 22(g).

---

This rulemaking was initiated by the Board~sown June 10,

1981

proposal to add a new Part IV to Chapter

7:

Solid Waste.

First

notice of this proposal was published in 5 Illinois Register 7939,

August 7,

1981 and in Environmental Register

*242,

July

31,

1981.

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.

Various motions

to stay this

proceeding and to consolidate it with the R80-20

Chapter

7

“clean-up” proceeding were denied by the Board in its Order of

October 22,

1981,

Based on the comments made at hearing and on the written

comments received, the Board has revised its initial proposal.

As the revisions are significant, hearings will be held on the

revised proposal,

first notice of which shall

be published in

the Illinois Register.

Before addressing the individual

rules,

some general

remarks are in order,

The original proposal was for addition of a new Part IV to

existing Chapter

7.

This revision

has

been drafted

in codified

form as Subchapter

g to Ill, Mm. Code Title 35, Subtitle G,

Chapter 1.

This has been done in anticipation of

the codification

of Chapters

7 and

9 in the course of the R80—22 proceeding.

Some confusion has arisen concerning the scope of this

rulemaking.

It is the Board’s intent 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 ~

the applicant from operating

a refuse

disposal site or facility.

in short,

these rules prescribe

procedures for acting upon an applicant~s

g~4y~qualities.

The Illinois Environmental Protection Agency

lAgency) and other

commenters have suggested that this rulemaking should also

establish standards

for defining ~2~ive

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 September 23,

1981 comments, the Agency included an

incomplete “draft”

set of technical certification rules,

which

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 landfill classifications which were part of the

originally proposed Chapter

7 revisions.

However,

R80-20 has

been in abeyance while waiting for a revised proposal.

Too, the Board~sR81—22 adoption of RCRA rules may pose

additional considerations which should be taken into account in

any technical certification program.

47-52

---

It is the Board’s

belief

Ca. this proceeding.

which

basically involves a ‘cnmlrtal rc;ord check”

can and

should

go

forward.

It

is not intenc’ed

‘.o preclude later

adoption

of

technical

certifscat±onstanda

-

e.

when

at’td as appropriate

technical classifications end t.tandards are developed.

In

anticipation

of

such

rulenskLng~.

the Bc

ard

has

created

the

‘Certification’

Subchapter

g

in

its

codification

scheme,

in

which

such

rules

can

eventuaiy

be

placed.

THE

PROPOSED

RULES

gtPp~sJk

LS’!&.rsLflQxL!

ton~

Section 745.101

Scope

anS

Section 745.102

RelationshQ to Other Rules

These

new

sect! one

are

:e

-

t- 3xplanatory.

Section

745..03

Ccnp’i’a

ta

~

The oriqinal draft ~e

...

.nt

as to ccmpltance dates.

Concern was expressed at hea::a.w about the lack of a ‘phase—in’

period

for existing

permitted

.“i..e~..

Subsection

(a) was added

to

require

compLiance

no

Lattr

it.n £80 daya after the effective

date of the rules.

Subsections

a-b) were added in anticipation

of an earlier ‘phase~U’tn’of Vie

‘?usas.

743.03(a) establishes

that once certification

.s granted, the 745.121 Prohibition and

the 745.125 Duty to Provith d’ip~.lamentalInformation are

immediately

applicable.

745.103(b) requires canplS’zn’.e 35 days after mailing of an

Agency certification denial.

flssent ially, where cert±ficationis

denied, a

‘temporary

atay by ‘nft” et the 743.121 Prohibitions is

provided pending,

a) any appea t

c’t

thc.

Agency

act ion

to

the

Board,

or

b)

the

filing

of

a variance

Section

745.110

DW’init- •n’

In’~1rporated by

Reference

Section 745.111

Deflni~..4ras

These sections have

been

actdsd

in

part

because of the lack of

inclusion of definitions Sn the original proposal.

The existing

chapter 7:

Solid Wa..ts letam.t1oste

nf

paxticular

pertinence

to

this proceeding are those af ‘facility’, Rule 104(f), ‘operator’,

Rule 104(1),

and

‘site’,

Rule

3.04(r).

The Act’s section 3

definitions of ‘person’,

‘PCRA

term~t’,

‘refuse’, ‘site’, ‘waste’,

and

‘waste disposal site’

‘ire also of particular importance.

47-53

---

Section 22(b) of the Act,

as originally adopted by P,A.

76—2429, effective July 1,

1970 provided simply that the Board

might adopt “sitandards

for the certification of personnel to

operate refuse disposal sites or facilities.”

No definition of

the word “operate” was included

in the Act.

The Chapter

7 definition of “operator” includes any person

who “owns,

leases, or manages a solid waste management facility”.

This definition has remained unchanged since its adoption by the

Board in 1973

(R72—5,

8 P03 577,

578, July

19, 1973).

The one—sentence Section 22(b) of P,A,

76—2429 was

supplemented by P.A. 81-1484, effective September 18,

1980,

to

read as quoted on p.1

in its entirety.

No definition of

the word

“operate” was added to the Act,

leaving the term still undefined.

The Board interprets this legislative silence as acquiescence

to the long—established Chapter

7 definition cf “operator”.

The

Board therefore construes Section 22(b)

as amended by P.A.

81-1484

as charging it to certify site owners and managers.

“Lessees” in

the ordinary course would fall into one of the two categories.

Section 745,111 accordingly adds

a new definition of “manager”.

It specifies that a “manager”

is a natural person,

as opposed to

a corporate entity or partnership.

“Owner”

is also newly defined,

and includes individuals and legal entities as listed in Section

3 of

the

Act,

In

response

to comments made at hearing regarding

“common practice” in the waste disposal

industry, the definition

of owner for purposes of Subchapter g has been drafted to include

contract or option purchasers, but to exclude,

for instance,

a

bank holding “bare”

legal title as trustee for a waste management

company (R.120,

128—130).

Subpart B~ Prohibitions

Section 745,121

Prohibition

In response to comment on the original draft, this section

makes it clear that while certification

is not a permit, the

certification requirement is tied to permit requirements.

If

a

permit is required by the Board’s RCRA or Chapter

7 rules for

a

site or facility, then certification is required for its owner and

manager.

However, where UIC permits are required, certification

is not required.

tJIC permits are required by the Act pursuant

to

Title III:

Water Pollution; the Board’s certification authority

is contained in Title V:

Land Pollution and Refuse Disposal, in

which

(JIC permits are not mentioned,

The Board therefore believes

that to include UIC permit holders in this rulemaking would exceed

its statutory authority,

although the Board recognizes that

certification of such individuals would provide the same sort of

protection to the public as will certification of RCRA and Chapter

7 permitees.

47-54

---

Section 745,122

Permit Denial

This

is largely

a restatement of the Agency’s denial

authority as set

forth

in

Section

39(b)

of

the

Act.

Section 745.143

Duty to Apply

This section is seif-~explanatory.

Section 745,124

Duty to Supplement Pending Application

Section 745,125

Duty to Provide Supplemental Information

The duty to supplement has been modified in response to

comments to reduce the paperwork burden after certification has

been issued,

Supplements are now required semi—annually, rather

than every 30 days, unless a specific request for such supplement

is made by the Agency.

The duration of the duty has also been

made clear,

Supplementation of a pending application continues

to be required

within

30

days,

however,

in order to allow the

Agency to make a fully

informed

decision.

Subpart

C:

Applications For Certification

Section 745.141

Owner/Operator Applications

Section 745.142

Manager Applications

The intent of the owner disclosure requirements is

to reach

hidden and constructive ownership interests which would influence

the Agency’s decision to certify a natural person or a corporate

entity.

The Board has modified the original draft to require

that owners and stockholders of the applicant’s parent business

be identified, but has not required disclosure and resulting

supplementation of administrative and judicial actions concerning

them

(i—j).

However, such disclosure continues to be required of

owners and stockholders of the applicant business.

Subsection

(k)

has been amended to correct the inadvertent omission of language

providing that copies of administrative or judicial determinations

are necessary if the determinations were “made after opportunity

for an adversarial hearing”.

The manager application has been dealt with in a separate

rule containing only those provisions listed in 745.143 which

relate to natural persons.

Section 745.143

Application Form

Section 745.144

Incomplete Application

47-55

---

Section

745.145

Regia

ei & c

;.-t,fied

Mail

These provisions are unc.ha

aged.

3ubpar._ 0.

h,c.a.cy

At..t:1.in

Section 745.l6~.

No..ajicaticn

.)±

‘~‘v3vnmentalOfficials

This unchangac

rev,in

j’~

c;’14e9 fo: the giving of notice to

the same officials ri4t:rei ~

Jetti)n ~7 and 39 of the Act to

receive

notifLcatioxzt

‘

re~

..t

~‘‘lcnv1u:w,

A

township

official

coimnented

that

tcw~hi

.

w’t.~3be adced

‘.o

this

notice list, but

the

Board

has

chc-~’..

flu:

a~ sflf?

¶.at~e

the

Agency’s

administrative

burden

to

this

ecar.t.

Secticn

‘4r.:S:

-

This

section

hr

~o-

t.~..ts

mettied.

As explained at hearing,

the

language

concorn~ng ~ppcr4:r

i

tt:y f

r

adversarial

proceeding

is

not

fauna

in

the

A~

• bwt

I

a

b..en

•cU-.d

~s

pr3vide

more

explicit

and definite stardast’; t.;

‘s..

a:

3....r

‘t~

agency

discretion.

Section 745.163

F:nat

A~tre1

This sect..on ~arc

.,.

c¼’

I-n’

the Aqen3y provide reasons

for

any

denial c!

ce.’t. :i~st

.:i

pn visicn

inadvertently

omitted

from

the

prior

afl’..

Section

145.164

Tame

Lints

The

Board

hess

ra

~..

ec

V’

,~x L:son

taken

in

the

previous

draft,

which

had

pranced

t1~et

t

certification

be

deemed

denied

if

the Agency failed

tc.

tare

•~1y

tction.

Nearly

every

hearing

participant

objected

to

.~o

p:cr...as~r..

Upon

reflection, the

Board

agrees that

whent

the

tge.i”r

~ai1cito tinely act,

certification stould be oeer°’i,r~nte~.However, the

Board

does

not believe that if a

‘lad.’

ajrr.s.ar

,r

tv

.cn.~,eacert±ficationdue

to an administrative error,

that ~ e:e should be no forum for

consideration

of

the

pablt’f~slgnt

‘:o protection

from

such

individuals.

Section 74!-U~ saur

oicpflcitly

allows for an

action to suspend or

revoke

via’s

certifications.

Section 745.165

Waiver

Oi.

‘tiLe

Limits

This sectio’i is self-expiaaatory.

---

Subpart

B:

Appeal, Suspension, Revocation,

and

Transferability

Section 745,181

Appeal of Certification Denial

This section provides that Agency certification decisions

follow the usual appeal track to the Board,

as is presently the

practice

concerning Agency wastewater treatment plant operator

certification decisions,

rather than to the Circuit

Court,

While

Section 40 speaks exclusively of “permits”,

and the

Board

has

stated that it does not believe that a certification

is

a

permit,

the

certification system as outlined in these

rules

is inextricably

intertwined with the permitting system,

For example,

Agency

denial of certification in many cases will result in permit denial.

Section 745,182

Suspension or Revocation

In the original draft, suspension or revocation would

have

been an Agency decision appealable to the Board.

As pointed out

at hearing,

such a procedure, might be found to run counter to

Section 16 of the Administrative Procedures Act

(APA),

To avoid

any potential problems in this area,

this section now provides

for suspension and revocation actions before the Board.

Section 745.183

Duration and Transferability

This section addresses two areas in which the previous rules

were

silent.

APA INITIAL REGULATORY FLEXIBILITY ANALYSIS

While the existing hearing record contains no information

on this point,

it believes that some companies subject to those

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 businesse8,

I,

Christan L. Moffett, Clerk of the Illinois Pollution

Control Boa~dhereby certify that the above Opinion was ad~pted

on the

~

day of

1982 by a vote of~S-b.

Illinois Pollution

:rol Board