ILLINOIS POLLUTION CONTROL BOARD
December 24,
1980
In The Matter Of:
)
Hazardous Hospital Wastes,
)
R80—19
Sections
3(j~)
and 21(h)
of the
)
Environmental Protection Act,
)
EMERGENCY RULE.
OPINION OF THE
BOARD
(by J. Anderson):
Section 21(h)(formerly g)
of the Environmental Protection
Act
(Act),
P.A.
81—1186
(H.B.
1919), was signed by the Governor
on November 29,
1979.
It states that no person shall:
“Deposit any hazardous hospital waste
in any landfill
on or after January
1,
1981.
All such waste shall be
properly incinerated or processed by an alternative
method pursuant to regulations adopted by the Board.
This requirement shall take effect January
1,
1981.”
As no draft rules to implement this legislation had been
submitted to the Board, on October
2,
1980 the Board on its own
motion authorized the scheduling of inquiry hearings.
Two such
inquiry hearings were held,
the first
in Springfield on November
14 and the second in Chicago on November 17.
The emergency rules
adopted by the Board on December 18,
1980 were based on information
generated during these hearings and written comments* received
pursuant to the hearings.
At the outset,
the Board notes that Section 21(h)
with
supporting definitional Section
3(jj)1,
is itself equivalent to a
prohibitory rule, complete with compliance deadlines, and itself
precisely specifies the results to be reached.
During the course
of its inquiry hearings,
the Board discovered that there was con-
fusion as to the proper interpretation of this legislative mandate,
particularly as it relates to other state and federal legislation
and regulations.
While the Board would usually not write
an
extensive, advisory Opinion in support of adoption of an emergency
*Written comments were received from the Rockford School
of
Medicine
(PC
1), Abraham Lincoln Memorial Hospital
(PC
2), Illinois
Hospital Association
(PC
3), South Suburban Hospital
(PC
4),
Illinois Department of Public Health
(PC
5), Single Service
Institute
(PC 6),
the Illinois State Medical Society
(PC 7),
and Representative Virginia B. Macdonald
(PC 8).
40—209
rule,
the Board is doing so today for two reasons:
1)
to provide
immediate guidance to the generators and disposers of hazardous
hospital waste, and
2) to provide the needed focus for hearings
to be scheduled and held for the purpose of developing permanent
rules.
Rule
901
DEFINITIONS
As both the testimony at hearing and the public comments
received indicate, the very definition of “hazardous hospital
waste” has generated substantial apprehension and confusion,
as
it
is susceptible of an interpretation which could include all
waste generated by ~
provider of medical care to humans or
animals
in ~
facility.
Participants in the Board’s hearings
have also indicated,
by the definitions that they have suggested
to the Board,
that they believe that “hazardous hospital waste”
pursuant to Section 21(h) and
3(jj)
of the Act may mean the same
thing as the as yet federally undefined “infectious waste” under
the Resource Recovery and Conservation Act (RCRA),
and Section
22.2 and 3(g)
of the Act,*
*The United States Environmental Protection Agency has not
promulgated regulations
to implement §S3001,
3002,
and 3004 of
the Resource Conservation and Recovery Act of
1976,
42 USC
§S6901—6987
(RCRA),
RCRA,
in §1003(5),
includes as
a hazardous
waste any waste whose infectious characteristics may——
(A)
cause, or significantly contribute to an increase
in mortality or an increase in serious irreversible,
or incapacitating reversible,
illness; or
(B)
pose a substantial present or potential danger to
human health or the environment when improperly
treated,
stored,
transported, or disposed of, or
otherwise managed
(42 USC §6921(a)).
Section 3(g)
of the Act also defines hazardous waste in these
terms,
and directly references RCRA and RCRA regulations.
Section
22.2 of the Act
(otherwise known as H,B,
453,
P.A.
81—0856 signed
September 21,
1979) created a “Hazardous Waste Fund” and a system
of collecting
fees from owners or operators of hazardous waste
disposal sites
for hazardous wastes received.
To implement this
legislation,
on September
5,
1980 the Illinois Environmental
Protection Agency
(Agency) adopted final
“Criteria for Identi-
fication of Hazardous Wastes.”
4
Ill. Req. 125—137.
Section 3.4
as defines “infectious waste” as:
“Any pathological specimens and any articles attendant
thereto that may he disposed of from humans and animals
known to be contaminated with organisms that may produce
communicable diseases which must be reported to the
Illinois Department of Public Health.
Pathological
specimens shall include all solid tissue,
excreta,
and secretions
(followed by reportable disease list).
Id. at 133—134,
40—210
3
Thus,
at hearing,
and in the comment submitted by the
Illinois Hospital Association (IHA)(PC 3),
it was suggested that
the Board should adopt the Agency’s Section 22.2 “infectious waste”
definition as a definition for “infectious agent” under Section
21(g).
The Illinois Department of Public Health
(IDPH), on the other
hand,
submitted a definition, which
it would
like to see federally
adopted,
of “Pathogenic
(Hazardous) Waste” which includes but is
not limited to pathogens of disease it lists
as reportable
(Ex.
1,
1A).
The testimony of the Environmental Protection Agency (Agency),
while somewhat confusing,
indicates that
it favors adoption
of
its
§22.2 infectious waste definition.
The Agency further noted that
upon federal adoption of RCRA regulations,
its definition of
infectious waste, as well as any such definition adopted by the
Board, would require revision to bring it into conformity with
the federal definition.
As a matter of statutory construction, the Board rejects the
contention that the legislature intended that “hazardous hospit~1.
waste” be given the same meaning as
“infectious waste.”
This IF
clear from the histories of H.B.
1919
Sec.
21(h)),
and of H.B.
453
(Sec.
22.2), which were introduced and passed during the sa~.:~
legislative session.
H.B.
1919, as originally introduced by sponsor Representative
Virginia Macdonald, referred to raw infectious waste or hospital
waste.
At a tape-recorded but untranscribed meeting held April
27,
1979 by the Environment, Energy and Natural Resources Committee,
Representative Macdonald explained that certain of the red or
orange bags in which hospitals place infectious waste had been
found floating in the Peoria River.
The purpose of the bill was
to prevent such occurrences by providing that such waste be
incinerated or sterilized,
rather than deposited in a landfill.
It was further stated that the bill was not intended to “copy”
federal regulations, or to control disposal of animal wastes.
At the bill’s second House reading on May
10, 1979,
Representative Macdonald offered House Amendment No.
1,
redefining
the waste as “hazardous hospital waste.”
She stated that the
purpose of the amendment was to “tighten up” the “broad definition”
included in the original bill.
At third reading,
the sponsor
explicitly stated that “House Bill 1919 standardizes the disposal
and waste of hospitals.
“...itj
describes hazardous hospital
waste and it also mandates that they must be burned at very
high temperatures or else disposed of
in a manner which has been
promulgated by sterilization that will be promulgated by the
Pollution Control Board
(sic)”
(Transcript of
Ill. House of
Representatives Floor Debates; May
10,
1979,
p.
11—12, May
15,
1979,
p.
226-228).
In a letter to the Board dated December 18,
1980
(PC
8), Representative Macdonald again stated “it must be
clearly understood that House Bill 1919 addressed itself only
to hospitals.”
40—211
4
H.B.
453, which directly references RCRA and regulations
promulgated thereunder and establishes a fee system to be paid
by hazardous waste site operators, passed both Houses June 28,
1979
(Legislative Synopsis and Digest of the 1979 Session of the 81st
General Assembly of the State of Illinois, Volume II, No.
23,
1330—1334, 2277—2278).
The Board therefore concludes that,
since
both bills were under simultaneous scrutiny, that it was intended
that H.B.
1919 was intended to create special disposal requirements
for only
a limited sub—group of the universe of the
“infectious
waste” encompassed by H.B.
453.
“Hospital”
Giving the words of definitional Section
3(jj)
their natural meaning,
the Board finds that the landfill prohi-
bition applies to the wastes generated by institutions of the
type defined as “hospitals,” in Ill. Rev. Stat.
Ch.
111½,
§144,
the Hospital Licensing Act.
The Board’s definition does not In-
corporate the statutory exclusion of
federal and state government
maintained hospitals, as this relates only to licensing juris-
diction and not to source of waste generated.
This definition
excludes facilities such as nursing homes, the offices of medical
care providers, funeral homes, veterinary hospitals and other
generators of infectious wastes.
“Contaminated or may be contaminated with an infectious
_~j~t
capable of causing an infection”
The Board has substantially
adopted the IDPH definition of “infectious agent,” which includes
but is not limited to agents of reportable diseases.
The Board
has not accepted the Agency limitation, because,
in our admittedly
limited study,
it appears that the recommended “best hospital
practice”
is to take special precautions with waste generated by
patients suffering from diseases other than those on the reportable
list.
(Compare Ex.
2,
Agency definition of
“infectious waste,”
4
Ill. Reg.
133—134, with Ex.
1B, Isolation Techniques For Use
In
Hospitals,
App.
II
“Diseases Listed Alphabetically With Type And
Duration Of Isolation Or Precaution,” U.S.
Dept. of H.E.W.,
Public
Health Service, Center for Disease Control,
2d ed.
1975.)
Where
it is established hospital procedure to isolate “unlisted” wastes
for the protection of its patients and staff,
such wastes should
continue to be segregated and not reintroduced into the general
hospital waste stream.
The “contaminated with or may be contaminated with” language
could embrace all hospital waste,
including the facial tissue used
by the skier suffering from both the common cold and a broken
leg.
This interpretation would create an arbitrary and capricious result.
This language should he construed in light of the realities
of hospital practice.
When,
for instance,
a patient suffering
from serious, infected burns is placed in strict isolation, both
the “contaminated” dressings,
and other patient wastes and contact
items which
“may be contaminated” are segregated and receive
special handling.
40—212
5
Construing the phrase as a whole,
then, the Board believes
that “hazardous hospital waste” is that waste which receives and!
or is recommended to receive special handling because it has been
generated in connection with care of
a patient suffering from a
disease requiring use of isolation procedures
(i.e.
strict and
respiratory isolation,
or enteric, wound and skin, discharge,
and
blood precautions——see generally Ex.
2).
Based on the statements
at hearing of IDPH and hospital representatives, the Board
believes that such an interpretation, reflecting standard hospital
procedure, will be understandable, workable, and will adequately
protect the public health and interest.
“Innocuous” and “Normal” Hospital Waste
“Normal” hospital
waste has been defined as suggested by IDPH.
The definition of
“innocuous” waste has been included to identify waste which may
be deposited in a landfill.
Rule
902
DISPOSAL METHODS
The IHA argued that Section 21(h)’s prohibition of deposit
of hazardous hospital waste in “any landfill” should be read a~
“any landfill other than a hazardous waste
landfill”
(R.19—20).
The Board cannot accept this strained interpretation of clear
language, and provides that such waste must either be incinerated,
sterilized,
or, where lawful, deposited into a sewerage system
(e.g.
blood or urine samples).
The Board acknowledges that
it has received considerable
testimony concerning the cost to hospitals of eliminating the
option of
landfill disposal of wastes,
and has received comment
from manufacturers of disposable patient care items whose
business would be curtailed
(R.
131—185, Ex.
4,
PC
6).
The IDPH
and IHA have presented their opinions and have referenced those of
other organizations and individuals that contaminated hospital
wastes may be safely disposed of
in landfills if double—bagged at
the source and not compacted,
although there was little specific
comment about methods of protection of the bags before pickup
and during transport to a landfill.
These arguments would be relevant if this were
a proceedinq
before the Board pursuant to Section 22(h) to determine whether
land burial of this waste should be prohibited,
taking into
account the technical feasibility,
economic reasonableness,
and
environmental soundness of the disposal options.
In this case
the legislature has itself made the determination and established
the prohibition.
Arguments concerning the economics and feasi-
bility must therefore be made,
if at all, to the legislature,
and
not to the Board in subsequent hearings.
The Board does, howev’~,
request testimony concerning the nature of and extent to which
hospital wastes are disposed of
in sanitary sewer systems.
40—213
6
Rule 903
RENDERING WASTE INNOCUOUS
The Board has adopted the IDPH’s proposals concerning method~
for sterilization by heat.
However, this record does not contain
enough information for the Board to adopt a rule concerning
chemical sterilization, particularly since objection to the loose-
ness of the proposed rule was raised at hearing.
The Board will
therefore invite testimony concerning the question of chemical
or
other means of sterilization at hearings to be scheduled.
Rule 904
INCINERATOR PERMIT ISSUANCE
Rule
905
AGENCY CRITERIA
The language of these rules
is drawn from Rules 501 and 502
of Chapter
4, and was subject to public comment during the course
of that regulatory proceeding
(cite).
While the Agency currently
classifies incinerators as to type of materials which may be
incinerated, it would seem that pathological incinerators,
for
instance,
are not currently certified as capable of producing ashes
which are bacteriologically innocuous
(R.
230).
It is not the
intent of the Board to prohibit the use of existing incinerators
while permanent rules and criteria are being developed, hut rather
to insure that new incinerators have this capability before use,
and that existing incinerators are properly permitted as promptly
as possible.
Accordingly, permits which have been issued pursuant
to Chapter 2 shall be deemed permits issued pursuant to Chapter
0,
Part IX, until
a permanent rule is promulgated to replace the
emergency rule.
Rule
906
RECORDKEEPING
As it remains an open question as to whether the qenerator
as well as the ultimate disposer of hazardous hospital waste
is
liable
for its improper disposal, the Board is adopting limited
recordkeeping requirements for the protection of the generator
as well
as the disposer
(see Rule 906).
The intent of the Board
is to keep recordkeeping as simple
as possible; therefore records
of these tests and sterilization activities need not be submitted
to the Agency, but must instead be available for
inspection.
Rule 907
DEFENSE TO ENFORCEMENT ACTION
The purpose of this rule
is to provide legal protection to
a non—generator
(e.g.
landfill operator or waste hauler) who in
good faith accepts “innocuous” hospital wastes, which are later
proven to be hazardous hospital wastes.
40—214
RELATION TO OTHER LEGISLATION AND REGULATIONS
At hearing,
several questions were raised as to the relation
of Section 21(h) to various other Board rules.
In order to avoid
confusion, the Board will address some of these issues.
It is the Board’s opinion that Hazardous Hospital Waste,
a
special waste,
is subject to the supplemental permit,
and mani-
fest requirements if transported off—site for sterilization or
incineration.
Also, such hazardous hospital waste received by
the owner or operator of a hazardous waste disposal site is subject
to the disposal fee system of §22.2.
Assuming, of course, that
no other special waste component is present,
if
a hazardous hospital
waste is properly sterilized on—site, the resulting innocuous
waste is no longer a special waste,
subject to special waste re-
quirements or a fee since it no longer poses a “potential threat
to human health or to the environment.”
The ashes from on site
incinerated hazardous hospital waste are to be treated as a
special
“industrial process waste.”
For all of the reasons previously stated, and to avoid a
public health emergency occasioned by possible refusal of
landfill
operators to accept certain medical care wastes, the Board has
adopted emergency Part IX to Chapter
9:
Special Waste.
Part IX
will become effective January
1,
1981 and is being filed with the
Secretary of State as provided by Rule 5.01 of the Secretary of
State’s Rules on Rules and Section 5(a)
of the Illinois Adminis-
trative Procedures Act
Ill.
Rev.
Stat.
1979,
Ch.
127, Section
1005(b).
The Board will retain jurisdiction in this matter.
Mr. Werner concurred.
I, Christan
L.
Moffett, Clerk of the Illinois Pollution
Control Boar~hereby certify that the above Opinion was adopted
on the
‘I
day of
~/~p
1980,
by a vote of
2~’—~
‘I,
~
I’
Christan L.
Moffett,
er
Illinois Pollution Control Board
40—215