ILLINOIS POLLUTION CONTROL BOARD

April

8,

1976

HYON WASTE MANAGEMENT SERVICES,

INC.

Petitioner,

)

v.

)

PCB 75—413

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Mr. George Bullwinkel, Attorney, appeared for the Petitioner;

Mr. Peter E,

Orlinsky, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr.

Zeitlin):

This matter is before the Board on a Permit Appeal Petition

filed by Petitioner Hyon Waste Management Services,

Inc.

(Hyon) on

October

22,

1975.

The Environmental Protection Agency

(Agency)

filed

its

record of permit application on December

2,

1975.

Hearings

were held in the matter on January 26 and 27, 1976 in conjunction

with another Hyon Permit Appeal, PCB 75—457.

(PCB 75—413 and 75—457

are not consolidated cases.

An Interim Order of the Board dated

December

11,

1975,

specifically denied a Motion for Consolidation.

To avoid duplication of effort,

however, the January

26 and 27

hearings were held to jointly consider the two matters;

this case,

like PCB

75-457,

is decided on the combined Record.)

This case concerns Hyon’s attempt

to obtain an operating permit

for an incinerator used at Hyon’s Chicago facility,

located on the

shore of Lake Calumet,

on the city’s south side.

Characterized by

Petitioner as an “integrated treatment facility for industrial wastes,”

(R.6),

Ilyon’s Chicago plant has facilities

for the treatment, disposal,

destruction,

or other elimination of many kinds of industrial liquid

wastes,

(e.g.,

R.62—72,

93,

98,

200).

Approximately 40—50,000 gallons

of various types of waste are

treated or otherwise disposed of at

the Hyon plant,

(R.57).

Hyon’s application to the Agency for an operating permit under

Ch.

2: Air Pollution,

of the Board’s Rules and Regulations, for the

incinerator at the Chicago plant was submitted on July 18,

1975,

(Hyon,

Ex.15).

That permit application was denied by the Agency

in

a letter dated October 15,

1975,

(Hyon,

Ex.l6).

Following is

the reason given by the Agency for that denial:

The liquid waste incinerator operating at 4500

pounds per hour of liquid waste is allowed to

emit up to 0.08 gr/scf adjusted to 12

CO2.

Your permit indicates that up to 0.198 gr/scf

adjusted to 12

CO2 may

be emitted.

This

amount is

in excess of the amount allowed.

21—75

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—2—

This

is not the first time that Hyon’s incinerator has been

before this Board on a Permit Appeal.

On February

27,

1975 we

entered an Order dismissing as moot a similar Permit Appeal filed

November 20, 1974; however,

that Order also granted Hyon Variances

for its incinerator from Rules

103(a),

103 (b)

,

202 (b)

,

and 203 (e) (2)

of Chapter

2.

Iyon

Waste Management Services,

Inc.

v.

EPA, PCB 74-433,

15 PCB 605

(1975)

(Supplemental Statement by Mr. Dumelle,

15 PCB 609).

The background information given

in the Board’s Opinion there

is,

however, disputed in this case; our decision on those disputed facts

will,

in part,

be determinative of the issues

in this case.

In addition,

the Board’s assumptions

in granting the Variances in

PCB 74-433, particularly with regard to the applicability of Rule

203(e) (2)

to Hyon’s incinerator, are also in issue here.

The issues in this case are twofold:

1.

Is the particulate limitation of Rule

203 (e) (2) applicable to the type of incinerator

operated by Hyon at its Chicago facility?

2.

If the particulate limitations of Rule

203(e) (2)

are indeed applicable, was the Agency’s

rejection of Hyon’s permit application proper?

The pleadings, exhibits, and testimony offered by the parties

with regard to the second of those issues were highly complex and

technical.

These included discussions of the propriety of applying

the

12 per cent carbon dioxide correction in Rule 203 (e) (2)

to an

incinerator like Hyon’s,

the possibility or propriety of making

fuel-based adjustments to arrive at such a correction factor,

and

various questions concerning the acceptability of certain stack

testing procedures.

DISCUSSION

The Rules and Regulations Governing the Control of Air Pollution,

promulgated by the Air Pollution Control Board, defined an incinerator

as a,

Combustion apparatus designed for high temperature

operation in which solid,

semi-solid,

liquid, or

gaseous combustible wastes are ignited and burned

efficiently and from which the solid residues contain

little or no combustible material.

§

1,

Definitions.

21

76

---

—3—

When the Board enacted its own emission Regulations for

incinerators

(which include limitations other than those for particu-

lates under Rule 203),

it defined “incinerator” as a, “cJombustion

apparatus in which refuse is burned.”

PCB Regs., Ch.

2,

Rule 201,

Definitions.

No further reference was made to that definition in

the accompanying Opinion, which stated that the definitional section

of the Regulations

is

“largely self-explanatory.”

In the Matter of

Emission Standards,

R

71-23

(April

13,

1972), Opinion at 12.

Nor

was any further explanation of the definition given elsewhere in

the Regulations themselves or in other sections of the Board’s Opinion.

In attempting to determine the Board’s intended coverage in

that definition, we must examine,

first, possible refinement of this

definition;

and second, the Board’s concept of what was to be achieved

under the Regulations limiting emissions from incinerators.

When the Board promulgated its definition of “incinerator,”

the term “refuse” was

itself defined

in the Environmental Protection

Act as,

“any garbage or other discarded solid materials.”

Ill.

Rev.

Stat.,

Ch.

111-1/2,

§1003(k)

(1975).

It would seem from that refine-

ment of the “incinerator” definition that the incinerators controlled

by Rule 203(e)

are limited to those in which “garbage or other...

solid materials”

is burned.

However, as the Agency points out

in its Brief,

the Illinois

Legislature changed the Environmental Protection Act’s definition of

“refuse” in 1975.

Illinois Public Act 79—762

amended the definition

in

§3(k) of the Act to include,

“any garbage or other discarded

materials with the exception of

certain

radioactive materials

3

.

.

.

In light of that redefinition by the Legislature, the Agency argues

that the definition of an incinerator controlled by our Regulations

now includes one which burns either liquid or solid waste.

Hyon,

however, argues that the Board’s definition of “incinerator” must

use the word “refuse”

as it was defined when the definition of

“incinerator” was written, i.e.,

solid materials only.

We find that Hyon’s contention is correct.

The Agency’s attempt

to distinguish the cases cited by Petitioner on the subject of statu-

tory interpretation is incorrect.

The Agency’s statement that these

cases would not apply because the terms here are not “subject to

unclear meanings or gradually changing usages,”

(EPA Brief, at

5),

begs the question:

As the Agency also points out, the definition

actually has changed.

21—n

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—4—

Nor do we feel that the Legislature’s change in definition

reflects any conscious attempt to affect the coverage of our Air

Pollution Regulations as they relate to refuse or incinerators.

No

such intent

is expressed in the new definition.

Without such express

intent, we find that the general rule of statutory interpretation,

giving to words of art or words subject to changing definitions, the

definition in effect at the time of enactment is controlling.

Even without that statutory interpretation, there are other

compelling arguments presented by

Iiyon which would lead us to the

same conclusion,

i.e.,

that Rule 203(e)

applies only to incinerators

burning primarily solid waste.

First, what little guidance which does exist in the Opinion

accompanying the Emission Regulations

is found

in the section accom-

panying Rule 203(e)

itself.

As pointed out by Hyon,

the Board there

stated that the particulate limitation of 0.08 gr/scf for incinerators

“tracks the Federal New Source Standards.

..

.“

R 71—23,

supra,

citing

40 CFR §60.51.

The Federal New Source Standards definitions, id.,

specifically limit

the coverage of “incinerators” to those

“buF~iTng

solid waste,”

“solid waste” itself being defined as “refuse, more

than 50

of which is municipal type waste consisting of

a mixture

of paper, wood,

yard wastes,

food wastes,

plastics, leather, rubber,

and other combustibles, and noncombustible materials such as glass

and rock.”

Were our own standards

to

include in their definition

of “incinerators” those burning largely liquid wastes, they would

hardly “track” the Federal New Source Standards.

Second, Hyon argues persuasively that the correction factor

in Rule 203 (e) (2),

to 12

CO2, would be inappropriate for application

to incinerators burning largely liquid wastes of the type burned

in

Hyon’s incinerator.

There was considerable discussion of this issue

at the hearings,

(eg.,

R.

145—147,

205—209,

215,

225,

228, 372—373),

and in both parties’

Briefs.

Although portions of that discussion

concerned correction factors to be applied if the Board were to

decide that Rule 203(e) (2) did apply

to Ryan’s facility, the discussion

is nonetheless applicable h~.

The sum of those discussions at hearing indicates that the

particulate limitations of Rule 203(e) (2) were based, particularly

with regard to the 12

CO7 correction factor on emissions likely

to be generated from the burning of solid waste, whether those likely

emissions are generated from burned coal

(as Ryan attempted to show

at hearing,

R.144),

or from municipal wastes

(as exemplified by the

definitions cited above in the Federal New Source Standards).

The

Agency’s contrary argument, to the extent that it is not empowered

to compensate whether a Regulation is to

a source’s “advantage or

disadvantage”

is inapropos.

Petitioner properly shows that,

under

such an application of the Rule,

it is conceivable that under certain

conditions, with certain fuels,

no particulate emissions would be

allowed.

While a laudable goal,~urRegulations cannot, as presently

constituted, be construed in such a manner.

21 —78

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—5—

Similarly, the Agency’s argument that Ryan’s proper relief

in this regard should be a Petition for regulatory change is not

applicable here.

Our Regulations do not require that every imagi-

nable source be covered under the existing emission limitations.

Where the existing Regulations do not provide for a specific limi-

tation, we need not apply a tangential limitation due to that lack

of provision.

We find no foundation for the Agency’s statement that,

“the

Board’s particulate regulations are intended to cover all particulate

sources,”

(Brief,

p.

7), which is cited only to §9(a) of the Act.

To agree with that statement is tantamount to proclaiming our oinni-

science, particularly when the statement is viewed in light of the

Act’s requirement that the Board examine technical and economic

feasibility in enacting Regulations.

Raving decided that the particulate limitations of Rule 203(e) (2)

were meant to apply to incinerators burning solid wastes,

and not

liquid wastes, we must then determine the nature of Hyon’s incinerator.

Neither of the parties dispute the fact that what Ryan operates

is an “incinerator,”

in the sense of it being used to burn wastes,

(e.g.,

R.90,

158,

180).

Arguing that Rule 203(e) (2) must therefore

be applicable,

the Agency cites the recent case of People and EPA v.

Ruben Metal Co.,

Inc., P03 75-20

(Supplemental Opinion,

Jan.

14,

1976),

whicth stated that “in determining which emission standard would apply

to a given

‘incineration’

source,

the primary purpose of that source

is determinative. The determination of what

is the primary purpose of

the source must be made on a case by case basis.”

While the primary purpose of Hyon’s incinerator is

certainly

‘incineration,’

as the word was used in Ruben, the primary purpose

here is actually the incineration of liqufd wastes. As a result,

the particulate emission limitations of Rule 203 (e)

(2)

do not apply

to Hyon’s “incinerator.”

The Agency argues that the Record does not show the proportion

of liquid to solid wastes incinerated by Ryan, and that Rule 203(e) (2)

should apply unless no solid wastes are burned.

However, such an

analysis

is contradi~toryto that in Ruben,

supra.

The Record in

this case makes

it clear that the primary purpose of Hyon’s incine-

rator is the destruction of liquid wastes,

(e.g.,

R.132,

133,

158).

In light of all of the above, we find that the particulate

limitation of I~u1e203(e) (2)

is inapplicable in Hyon’s case.

Each

of the grounds put forward by Ryan for this decision would be suffi—

cient, individually; collectively, they are compelling.

21—79

---

—6—

Our decision to this effect troubles us.

It

is evident that

some control over the incineration process operated by Hyon is

necessary; the materials destroyed in Hyon’s incinerator are certainly

capable, as the Agency points out,

of causing considerable environ-

mental and public health damage.

It

is unfortunate that Hyon’s

operations are not, as the Agency would have

it, controlled by our

particulate Regulations.

But, as is pointed out above, we are unable

to find any real relationship between those Regulations and Hyon’s

operations.

This decision is not a

“free ticket” for Ryan, however.

Ryan

remains bound by the provisions of the Act and our Regulations

prohibiting air pollution.

In addition, Hyon’s incinerator remains

subject, as an “emission source,” to the operating permit requirement.

We would hope that,

to obtain the protection of S49(e)

of the Act,

Ryan will itself propose applicable regulations.

We likewise hope

that the Agency will either propose such Regulations or provide

guidance and technical assistance to the Board in its consideration

of any other proposal, whether from Hyon or some other source.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that the decision

of the Environmental Protection Agency, dated October 15,

1975,

denying Petitioner Ryan Waste Management,

Inc., an operating permit

for its liquid waste incinerator,

be reversed, and that said Petitioner

is entitled to an operating permit therefor.

Mr.

James Young and Mr. Jacob Dumelle abstained.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, heç~ycertify the

bove Opinion and Order were

adopted on the

~‘

day of

_________,

1976, by a vote of

3-~

stan

Illinois Pollution