ILLINOIS POLLUTION CONTROL BOARD

October

2, 1986

IN THE MATTER OF:

)

HAZARDOUS WASTE PROHIBITIONS

)

R 86-9

DISSENTING OPINION

(by

B.

Forcade):

I dissent from today’s action.

Because of the speed with

which

this action

is being

taken,

and the short time available

for review of each draft of

the proposed emergency rules,

I can

only chronicle

the major areas of my disagreement,

My first area of concern

is that there

is no emergency to

support bypassing the normal regulatory process.

The statutory

provision which

these regulations are intended to implement did

not spring

forth

in the last few months,

Section 39(h)

has been

the adopted

law in Illinois for five years.

The Pollution

Control Board

knew it existed,

the Environmental Protection

Agency knew

it,

as did the regulated community and

the public

interest sector,

This association of individuals

(myself

included)

exercised their collective indifference for over

four

years,

Now the cries of emergency are deafening.

This Board frequently receives requests for variance from

the regulated community.

If the Board determines that the

regulated entity knew of

the constraints

in advance but failed to

adequately plan ahead,

the variance

is denied because of

“self—

imposed hardship,”

Today’s action represents the ultimate

response

to self—imposed hardship.

The second aspect demonstrating

no emergency

is that Section

39(h)

is self—implementing.

If the General Assembly had required

that the

Board adopt regulations before the proscriptions of

Section

39(h)

became effective,

the situation would be

different,

But the language of that provision is clear,

On

January

1,

1987,

the prohibitions become effective whether or not

the Board acts,

In fact,

the Agency has stated

it

is fully

prepared

to process Section 39(h)

authorization applications

without Board

action.

On page

3 of the majority opinion,

it

is

argued that Section

39(h) may not be self—effectuating

and will

not become effective until

the Board adopts

rules,

I believe

it

would be

a substantial surprise

to the General Assembly to learn

that they cannot prohibit certain hazardous waste disposal

practices unless

a majority of this Board

agrees.

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—2—

The third aspect cautioning

against

an emergency rule is

that this

is not “a situation which...reasonably constitutes

a

threat to the public interest,

safety,

or welfare”

(Administrative Procedures Act, Section 5.02).

Hazardous waste

will not pile up on

the streets

of Chicago or Peoria,

At most,

one Agency of state government

(the IEPA) will implement the

provisions of Section

39(h)

in

a manner that

a portion of another

branch of state government (this Board)

deems inappropriate.

Turf fights between sister

agencies about statutory

interpretation may indeed constitute

a “threat to the public

interest,” but they provide a very poor basis for emergency

rulemaking.

Nearly all of the proposed emergency rules are an

attempt

to remove Agency jurisdiction

in areas where they have

expressed an intention to act,

or

to restrain the time and method

by which the Agency will

act,

My primary concern with the substance of

the proposed

emergency rule continues

to be

the exceptions,

The primary

substantive

focus of today’s action by the majority

is

to remove

certain materials,

in Section 709.202 of the regulations, from

the wastestream authorization requirements of Section 39(h)

of

the Act,

and

to remove certain types of facilities,

in Section

709.110(b) of the regulations, from

the prohibitions of disposal

in Section 39(h) of

the Act,

Most of my objections were

articulated

in my dissenting opinion of June

11,

1986,

and will

not be repeated here.

The majority continues

to ascribe great importance

to the

fact that Section

39(h) prohibits the “deposit” of hazardous

waste

rather than the “disposal.”

They argue

that deposit

is

a

much more restrictive word than disposal as evidence by the

definition of disposal

in Section

3(e)

of the Act, which

provides:

e.

“DISPOSAL”

means

the

discharge,

deposit,

injection,

dumping,

spilling,

leaking

or

placing

of

any

waste

or

hazardous

waste

into

or

on any

land or water

or

into any

well

so

that

such

waste

or

hazardous

waste

or

any

constitutent

thereof

may

enter

the environment

or

be emitted

into

the

air

or

discharged

into

any

waters,

including groundwaters.

If disposal

is distinct

from deposit, then surely spilling

and dumping are distinct

from deposit,

Using

this theory,

it

would be permissible

to discharge,

to inject,

to dump,

to spill,

to

leak,

or

to place

a hazardous waste

into

a hazardous waste

disposal facility without

an authorization

(even those

few

facilities that would remain under

the scope of today’s proposed

emergency rule),

so long as you did not

“deposit”

it

in the

facility.

I have great difficulty with that interpretation.

73-38

---

—3—

In Section 729,122(a),

the proposed

rule precludes the

Agency from considering process substitutions or waste

minimization

in making

its determinations.

While

I do not

believe the Agency should tell

industry how to make it products,

today’s language

is far

too sweeping.

A substantial portion of

the Board’s existing regulations

to control ozone are expressed

in terms of pounds of volatile organic material per gallon of

coating material used,

35 Ill. Adm. Code 215.204.

This is

clearly process control.

I would

need

a much better reason than

the record provides before I could categorically prohibit

a

concept

in an emergency rule for hazardous waste

that is

so

clearly established

for ozone control.

Waste minimization sounds

like

a

laudable goal

if the objective

is to reduce

the amount of

hazardous waste going

to hazardous waste disposal sites,

If,

as

the majority opinion states at page

9, generators are already

required

to consider

and implement reasonable waste reduction

processes, why

is

the Agency precluded from looking

at this

information?

In Section 729.122(f),

the proposed rule precludes the

Agency from denying

a facility a wastestream authorization based

on violations

of other permits

the facility might hold,

Recently

at

an air pollution conference,

an Agency employee expressed his

view that the Agency was empowered by the Act to deny air permits

for violations of water permits.

Others have expressed contrary

views,

If the idea has legal merit,

it will survive,

if

it does

not,

it will

fail,

But surely

so profound

a concept deserves

full legal briefing and consideration by all

sides.

It should

not sneak

in the backdoor

as one sentence

in

a nineteen p~ge

emergency rule that has had

less than two weeks

review.

Section 709,106 and 709.404 represent last minute additions

to the proposed regulation,

They establish

a ninety—day deadline

for Agency decisionmaking,

When the deadline

is not met, the

authorization

is granted by default.

This concept has never

before seen the light of day

in this regulatory proceeding.

While there appear

to be some strong legal arguments that

this is

exactly what the law requires, there could be strong

legal

arguments against

it,

If the Board intends

to

impose such

draconian measures against the Agency, at least they deserve the

opportunity

to raise arguments against.

The short time

I have had

to review the proposed rule

precludes

a more detailed critique.

I have had little

opportunity

to explore the consequences of the interplay of the

various

sections,

This

I

believe

argues

strongly

against

the

haste

with

which

this

emergency

rule

is

proceeding.

Accordingly,

I

dissent.

73-39

---

—4—

~

Member of the Board

I,

Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board,

hereby cert).fy that the

ab ye

ssenting Opinion was

submitted on the

~—‘

day of

_______________,

1986.

Dorothy

M,

G?inn,

Cl~’rk

Illinois Pollution Control Board

73-40