ILLINOIS POLLUTION CONTROL BOARD

July

22,

1976

ENVIRONMENTAL PROTECTION AGENCY,

)

)

Complainant,

)

V.

)

PCB 75—477

MASTER PATTERN,

INC.,

an Illinois corporation,

Respondent.

DISSENTING OPINION

(by Mr.

Zeitlin):

I respectfully dissent from the Board’s Order of today on the

Environmental Protection Agency’s Motion for Reconsideration.

The

Board’s Order is,

I feel, deficient in several respects.

This Order undoubtedly constitutes adjudicative rule-making,

beyond the Board’s statutory authority.

1.

Rule 202(b) (1) of Chapter

7: Solid Waste,

requires an operating permit for any existing “solid

waste management site.”

2.

Rule 104(u) defines Solid Waste Management as,

“the process of storage, processing or disposal of solid

wastes, not including hauling or transport.

..“

3.

Rule 104(s) defines solid waste as “refuse.”

4.

Refuse,

in turn,

is defined in Rule 104(o)

as

“garbage or other discarded materials.”

It is clear that the broken concrete used as fill

in Respondent’s

site falls within the category of

“other discarded materials.”

By

distinguishing that concrete from other types or categories of “other

discarded materials,” the Board has used an adjudicative forum to

amend the definition in Rule 104(o)

to exclude that concrete.

This

it

cannot do.

Nor do

I feel that the end use of the concrete in question

is

material.

The Board has previously stated that conversion to

beneficial use is not material in determining whether a site

is

a

“landfill.”

EPA

V.

Dill,

PCB 71—42,

2 PCB 277,

279

(1971).

Nor

is

it material whether a site is being operated for profit.

EPA

V.

Rafacz Landscaping, PCB 72—196,

6 PCB 31

(1972).

23

—

125

---

—2—

It seems that the Board’s decision here improperly expands the

permit exemption in Section 21(e)

of the Act.

That section provides

an exemption from the permit requirement for materials internally

generated; here the Board has expanded this exemption to include

materials from other sources,

if only the “outside” materials are:

1.

relatively a small proportion of the total

material to be disposed of;

and,

2.

properly incorporated into the internally

generated refuse.

Section

21(e)

does not speak of an exemption for relatively

small amounts of “outside refuse.

Nor do either the Act or our Rules

make an exemption based on the fact of proper operation of the site.

The Board’s Order of today

seems to contradict its earlier

Opinion accompanying the adoption of Chapter

7.

In the Matter of

Solid Waste Rules and Regulations,

R 72-5,

8 PCB 695

(July

31,

1973).

The Board’s Opinion there discussed, almost exclusively, the permit

requirements of Chapter

7; very little discussion concerned the

operating requirements.

It has consistently been the Board’s position

that the permit system is necessary to assure proper operation and

prevent environmental harm.

Here,

however,

the Board has somehow

arrived at the reverse conclusion:

No permit is necessary when the

operation of the site is correct.

When the Board says that no permit

is needed if,

“there are no interstices

to harbor rodents.. .or to

serve as an aquifer transmitting leachate.

.

.

if the material is in

such location that the aesthetic value.

.

.is not unreasonably degraded

then there is minimum potential for environmental harm,” it almost

defines the purposes of a permit system.

The relationship of this

type of analysis to the definition of “refuse” is not clear.

This case points out the fact that there may be a need to amend

portions of Chapter

7.

I do not dispute this need and would welcome

an appropriate Regulatory Proposal on the subject.

However, the

Board should answer any such need within the procedural guidelines

provided in the Act:

a Regulatory change.

Philip

Ze’

1

Member of

he

rd

I,

Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certif

the above Dissenting Opinion was

filed

on the

I~(I,’k

day of

__________,

1976.

Illinois Pollution C

1 Board