ILLINOIS POLLUTION CONTROL BOARD

October

2, 1986

IN THE MATTER OF:

HAZARDOUS WASTE PROHIBITIONS

)

R86—9,

Docket A

DISSENTING OPINION (By

R.

C.

Flemal):

I dissent from the Board’s action today for the reason that

the facts of the matter

do not justify adoption of an Emergency

Rule,

THREAT TO THE PUBLIC INTEREST,

SAFETY OR WELFARE

The conditions necessary for

the Board

to promulgate

an

Emergency Rule are not present

in the instant matter.

The Act

specifically identifies that an Emergency Rule

is appropriate

where

the Board can find “that

a situation exists which

reasonably constitutes

a threat to the public

interest, safety or

welfare”,

I do not see that the public interest, safety or

welfare would be threatened

in the absence of today’s proposed

Board action,

Rather, Board adoption of

a Emergency Rule now may

actually create such

a

threat.

There might conceivably be

a threat

to the public

interest,

safety or welfare

if

failure of the Board

to

adopt emergency

rules left

a vacuum wherein the directive of 39(h)

could not be

carried out,

However, this

is clearly not the case.

The Agency

has given

an extensive apprisal of the guidelines

it intends

to

follow in implementing 39(h).

Thus,

a clearly defined direction

already exists,

A clear threat to the public

interest, safety or

welfare

might also exist

if the direction that the Agency has taken were

obviously faulty.

This

is also clearly not the case,

While

there may remain some uncertainties which will have to be worked

out by the Agency,

and some facets of the Agency’s direction will

undoubtedly require adjudication,

these are no more numerous nor

complex than

is

to be reasonably expected when any new

authorization procedure “comes on line”.

Moreover,

it cannot be

overlooked

that three of the four principal groups who offered

testimony

in this matter,

the Agency,

CBE, and Waste Management,

unanimously urged

that the Agency’s guidelines be given

a fair

test;

this testimony must be given weight against

a determination

that

a threat

to

the public

interest, safety

and welfare exists,

It might be argued,

in fact,

that Board adoption of

an

Emergency Rule at this time would create

a threat to the public

interest, safety and welfare,

rather than alleviate one,

By

inserting

itself into the 39(h)

authorization process

at this

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time,

the Board will certainly alter

and possibly disrupt

a

process which

is already well advanced and which

is being carried

out under

a very tight time limitation,

Disruption now would

seem

to

constitute

a

much

clearer

threat

to

the

public

interest

than

could

be

anticipated

by

abidance

with

any

of

the

Agency’s

guidelines.

The Board’s desire

to have regulations

in place

for January

1,

1987,

is occasioned by a sincere desire

to eliminate confusion

as of this critical date,

However,

in

so doing, the Board

seemingly fails

to recognize that the truly critical date

for

having the implementation procedures

for 39(h)

identified

is not

January

1,

1987, but a date already past,

This date was the time

when applicants were required

to draft and submit

their

applications

to the Agency.

Should these many applications need

to be redrafted and resubmitted as

a consequence of

a Board

action,

the public interest could be severely compromised;

confusion could not be escaped as applicants

and

the

Agency faced

the difficult task of trying

to complete the authorization

process

in the few weeks remaining before January 1,

1987,

Another source of confusion which would appear

to be a

consequence of the Board adopting an Emergency Rule at this stage

arises from the fact that 150 days from enactment of the

Emergency Rule the rule would lapse

and nothing would be

in

place,

At this time, neither the Board’s regulations nor those

Agency’s guidelines overruled by the Board’s Emergency Rule would

be existent,

How,

in these circumstances, does

the Agency

continue

to carry out the authorization process?

Does the

Board’s lapsed rule have weight?

These

are fundamental questions

to which

I don’t see obvious answers, and

to which

I am concerned

that the majority has not given due consideration.

Seemingly implicit

in the Board’s anticipation of adopting

an Emergency Rule

is the belief

that,

upon its expiration,

the

rule can be altered

to reflect evolution

in the Board’s

thinking.

While technically correct,

this is a very poor defense

for

the Board acting precipitously when demonstration of threat

to the public interest,

safety and welfare

is not present.

Finally, to argue,

as some have,

that failure of the Board

to adopt rules now would encourage midnight dumping and the like,

and

thereby provide threat

to public safety and welfare,

is not

very realistic,

There

is absolutely no

reason to suppose that

midnight ~umping would have greater encouragement under

the

Agency’s guidelines

than under

the Board’s emergency rule,

COMMENT

PERIOD ON EMERGENCY RULE

It has been argued that

it

is appropriate,

in the

instant

matter,

for the Board

to place its Proposed Emergency Rule out

for comment,

I

cannot

agree,

If

the

concept

of

an

Emergency

Rule

is flawed

now,

it will be as

flawed

two or three weeks

from

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no~i.

Perhaps

it will be even more flawed due

to greater

intrusion into

the short time remaining for

the permit process to

be carried out,

An Emergency Rule therefore should not be

adopted

at the end of the comment period,

and the public should

not

be

given

the

impression

that

it

might

be

adopted,

This

situation

is

significantly

different

from

the

circumstance

where

the

Board

puts

out

a

proposed

non—emergency

rule

for public comment,

as

in fact the Board did

in its June 11,

1986,

action

in this matter.

There the Board’s intent

is clearly

to begin a long dialogue process,

which involves ample

opçortunity

for interested individuals

and groups

to act and

react, propose and counter—propose.

These elements are absent in

the

instant

matter,

REFLECTIONS RELATIVE TO THE NORMAL RULEMAKING PROCESS

The Board’s regular

rulemaking process

is occasionally

critized

for its lack of speed,

However,

lack of speed

is not

the deficiency of the process, but rather

its crowning

strength.

The rulemaking process

is intentionally slow, because

in being

slow it

is guaranteed

to be deliberate,

in

the best

meaning of this word,

An Emergency Rule

in the instant matter would contravene

this intentionally deliberate strength of the Board’s rulemaking

process,

Except for

the quite limited opportunity to submit

written comments,

interested individuals and groups would

have

none of the opportunities

for participation

in rulemaking

to

which they are entitled,

There

is no good

in attempting

to

counter this argument by citing

the fact that the Board has

already held four hearings

under

R86—8,

because

what

the

Board

has proposed

today is such

a significant departure from that

which was before the Board

at the time of

the hearings.

Moreover, the

four hearings were but

a fraction of the

opportunity to participate

to which

the public

and the State are

entitled,

CONTENT

OF

THE

EMERGENCY

RULE

Because

I

am

of

the

belief

that

the

Board

cannot

adopt

an

Emergency

Rule

in

this

matter,

I

do not intend

to present my

perspective

on

the content of the Proposed Emergency Rule, other

than

to

make

a

few general observations,

For one,

I

believe

that

the Proposed Emergency Rule constitutes

a substantial improvement

over

the rule as originally proposed on June 11.

It should be

noted that the improvement has arisen,

in major measure, because

the regular rulemaking procedure has provided the Board with the

information necessary to make

the improvements, and is

therefore

futher testimony to

the strength of this procedure.

At the same time,

I do not

think the

Proposed

Emergency

Rule

is fully acceptable.

Significant problems yet need

to be

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resolved with respect

to such aspects as

the range of the

disposal

facilities covered by the rule and the criteria which

the Agency must consider

in reviewing permit applications.

There

are

also

aspects

of

a

fully

developed

rule

which

are

not

addressed

in

the Proposed Emergency Rule; these will

need

resolution.

The only way

to reach

a final determination on these

matters

is via the same route

used to achieve the improvement

witnessed by the Proposed Emergency Rule.

That is,

the regular

rulemaking process must be employed.

I am aware

that it is impossible

for the Board, given the

statutory conditions

for adoption of rules,

to complete the R86—9

rulemaking

for

some significant time,

I am also aware that the

Board may have

to address some of the unresolved matters in

permit appeals prior

to its ability

to promulgate a full rule,

While

this may not constitute

the most

ideal of all possible

worlds,

it

is, at the worst and given the fatalities of Emergency

Rule promulgation and

the necessity of following regular

rulemaking procedures,

the least of possible evils.

SUMMARY

None of the foregoing

should be construed

to suggest that it

is my belief that there

is no place for emergency rulemaking

in

Board actions.

There most clearly is such

a place, but the

instant matter

is not an example,

For this reason

I dissent.

nal~C.

Flémal

Board

Member

I,

Dorothy

M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the ab~jeDissenting Opinion was

submitted on the ~

day of

-o~’~,

,

1986.

orothy M.

unn, Clerk

Illinois Pollution Control Board

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