ILLINOIS POLLUTION CONTROL BOARD
December 15, 2005
IN THE MATTER OF:
PROPOSED SITE SPECIFIC PERLITE
WASTE REGULATION APPLICABLE TO
SILBRICO CORPORATION (35 ILL. ADM.
CODE PART 810)
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R06-8
(Rulemaking - Water)
ORDER OF THE BOARD (by T.E. Johnson):
On July 19, 2005, the Board received a rulemaking proposal submitted by Silbrico
Corporation (Silbrico) seeking a site-specific rule for its manufacturing facility located at 6300
River Road, Hodgkins in Cook County. Silbrico wants a rule allowing it to dispose of what it
characterizes as its nonhazardous, inert perlite waste at a “construction and demolition debris”
facility. The Board accepted the proposal for hearing on September 1, 2005.
On October 7, 2005, the Illinois Attorney General’s Office (AGO) filed a motion to
dismiss. On October 24, 2005, the Illinois Environmental Protection Agency (Agency) filed a
response to the motion to dismiss. Silbrico filed a response to the motion on October 27, 2005.
On November 3, 2005, the AGO filed a motion for leave to file a reply to Silbrico’s response,
accompanied by a reply. On November 22, 2005, Silbrico filed a motion for leave to file a reply,
accompanied by a surreply.
For the reasons set forth below, the Board denies the AGO’s motion to dismiss this
rulemaking.
AGO’S MOTION TO DISMISS
may be dismissed for failure to comply with content requirements or for inadequacy. Mot. at 1.
The AGO contends that Silbrico’s petition should be dismissed because its service list includes
neither the Department of Natural Resources (DNR) nor the AGO. Mot. at 2.
The AGO asserts that the petition should be dismissed as without statutory authority
because Silbrico seeks to have its manufacturing process waste reclassified as producing clean
construction and demolition debris. Mot. at 2. The AGO argues that this creates a conflict
between the proposed rule and the statutory definition of clean construction and demolition
debris.
Id.
The AGO argues that nowhere in the petition does Silbrico even claim that the
materials in question are generated from construction or demolition activities, but that the
petition specifically asserts that wastes are generated during the manufacturing process. Mot. at
3. The AGO contends that because the material Silbrico seeks to reclassify is not generated by
construction or demolition activities, and thus not within the definition of Section 3.160(b) of the
Environmental Protection Act (Act), the rulemaking petition cannot be granted consistent with
the statute.
Id.
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The AGO maintains that Silbrico cannot amend a statute through a site-specific
regulation, and that Silbrico is asking the Board to expand the scope of Section 3.160(b) of the
Act through a regulation. Mot. at 3. The AGO concludes that the petition is fatally flawed and
asks that the Board dismiss Silbrico’s petition. Mot. at 4.
RESPONSES TO MOTION TO DISMISS
The Agency concurs with the AGO’s argument that Silbrico has failed to comply with the
service requirements contained in the Board’s rules. Ag.Resp. at 1. Further, the Agency
believes that granting Silbrico’s requested rule would be an expansion of the definition of
construction and demolition debris as set forth in the Act, and therefore agrees with the AGO
that the petition, if granted, would result in an invalid rule. Ag.Resp. at 2.
Silbrico acknowledges that through a clerical oversight, the AGO and the DNR were
omitted from the service list for its petition. Resp. at 2. Silbrico asserts that the petition has now
been served on both parties.
Id.
Further, Silbrico argues that there is no prejudice to the AGO,
the DNR or the citizens by this clerical oversight, and that the oversight is not grounds for
dismissal especially as the petition was accepted by the Board.
Id.
Silbrico asserts that the rulemaking is within the Board’s authority as it seeks to have the
perlite waste treated as clean construction and demolition debris, not reclassified as clean
construction and demolition debris. Resp. at 3. Silbrico contends it does not seek a site-specific
regulation that would conflict with the statute. Resp. at 4. Silbrico argues that it, instead,
requests that this Board issue a site-specific rule recognizing, for Silbrico’s benefit only, that
Silbrico created perlite waste can be disposed of in a facility that is allowed to accept clean
construction and demolition debris.
Id.
Silbrico stresses that it is not seeking a finding that perlite waste streams are clean
construction and demolition debris, and thus is not asking the Board to amend the statutory
definition. Resp. at 4. Instead, Silbrico contends, it is asking the Board to adopt a rule
recognizing that its perlite waste streams are similar to clean construction and demolition debris
such that the streams can be safely and appropriately disposed of at a clean construction and
demolition debris operation. Resp. at 4-5.
Silbrico concludes that the rule, if granted, would apply only to Silbrico, would not
expand the scope of the construction and demolition debris regulatory scheme, and follows
exactly the legislature’s scheme outlined in the Act that gives the Board the authority to make
different provisions as required by circumstances for different contaminant sources. Resp. at 5.
AGO REPLY
In its November 3, 2005 motion for leave to file a reply, the AGO requests leave to file a
reply to address an apparent change in the rationale for the petition raised in Silbrico’s response.
Mot. at 1-2. The AGO contends that its reply will not prejudice any party to this proceeding, but
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will ensure that the Board has the benefit of a full and complete discussion of the issues. Mot. at
2.
In its reply, the AGO asserts that the petition is without authority whether it seeks to
classify materials as clean construction and demolition debris or as similar to clean construction
and demolition debris. Reply at 1. The AGO contends that although the petition clearly tries to
categorize the material as clean construction or demolition debris, Silbrico is now arguing that it
is only asking the Board to consider its materials as similar.
Id.
The AGO argues that under
either scenario, the petition is without authority.
Id.
The AGO argues that Section 3.160(b) of
the Act creates a narrow exception to the scope of regulated wastes for certain materials that
constituted clean construction or demolition debris. Reply at 2. The Act does not, continues the
AGO, create a potential third category of materials that can be removed from regulation as
wastes if they are similar to clean construction or demolition debris.
Id.
The AGO argues that Section 27 of the Act is not blanket authority for the proposal of
any regulation, but that regulations have to be consistent with the Act. Reply at 3. The AGO
argues that the fact that the request is characterized as site-specific does not make a difference
and is somewhat misleading.
Id.
The AGO asserts that the petition would impermissibly expand
the authority to remove materials from regulation as wastes and that to grant the petition, the
Board would have to find within the Act the authority to delist wastes if they are similar to clean
construction and demolition debris.
Id.
The AGO contends this expansion of authority is
unauthorized whether it extends to one site alone or to multiple areas.
Id.
The AGO asserts that materials that would otherwise be wastes do not become clean
construction or demolition debris by any action of the Board, and that if the proposed exemption
were found to exist and extended to similar materials, why would it not also be self-
implementing for other similar materials. Reply at 4. The AGO argues that even if all
subsequent parties were to seek site-specific rulemakings declaring their materials to be similar
to clean construction and demolition debris, that it would still constitute an unauthorized
expansion of the waste exception in Section 3.160(b) of the Act.
Id.
The AGO concludes that
Silbrico asks the Board to go too far in attempting to set up a new waste exemption scheme.
Reply at 5.
SILBRICO SURREPLY
In its November 22, 2005 motion for leave to file a reply, Silbrico requests leave to file a
surreply to address arguments made in the AGO’s reply. Silbrico asserts that it does not have an
objection to the AGO’s motion for leave to file a reply if it is allowed to file a surreply. Mot. at
1-2. Silbrico argues that its surreply is necessary to address arguments not made in the motion to
dismiss, and that Silbrico will be prejudiced if it cannot respond to the claims made by the AGO.
Mot. at 1-2.
In the surreply, Silbrico asserts that the AGO’s arguments misunderstand Silbrico’s
position and, in some cases, show a lack of understanding of the Board’s processes. Surr. at 1.
Silbrico argues that the issue is quite simple – does Section 27(a) of the Act allow the Board to
hear petitions for site-specific rules seeking approval of an alternate method of disposal of a
waste where that alternate method is established by a statute. Surr. at 2. Silbrico contends that
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Section 27(a) limits the Board’s rulemaking authority to substantive regulations as described in
the Act.
Id.
Silbrico asserts that Section 22 of the act grants the Board broad authority to adopt
regulations to promote the purposes of Title V: Land Pollution and Refuse Disposal, and that
Section 22.51 of the act is a part of this title.
Id.
Silbrico concludes that the Board has the
specific authority to adopt regulations relating to clean construction or demolition debris fill
operations.
Id.
Silbrico contends that its requested rule seeks to allow the disposal of its two perlite
waste streams in a clean construction and demolition debris operation that is properly regulated
pursuant to Section 22.51 of the Act. Surr. at 1-2. Silbrico reiterates that there is no conflict
between the proposed rule and the Act. Surr. at 3.
Silbrico argues that the AGO apparently misunderstands the category termed site-specific
rule when it claims that Silbrico’s proposal isn’t site-specific because it does not identify or limit
disposal to any specific disposal sight. Surr. at 3. Silbrico contends that the category of rules
known as site-specific is based on the second sentence of Section 27(a) that allows the Board to
“make different provisions as required by circumstances for different contaminant sources.”
Id
,
citing 415 ILCS 5/27(a) (2004). A site-specific rule, explains Silbrico, is not always technically
site-specific in the sense of one physical disposal site, but in the sense that it applies only to one
contaminant source. Surr. at 3.
Silbrico maintains that it is not seeking a waste exemption, but instead is seeking a rule
that would allow it (and only it) to dispose of two specific waste streams in a clean construction
of demolition debris operation. Surr. at 4. Silbrico asserts that if the rule proposal is granted, it
would only apply to Silbrico, not to others, and would not create any broad waste exemption.
Surr. at 5.
DISCUSSION
Initially, the Board observes that, since the filing of Silbrico’s petition, the Agency has
filed a rulemaking proposal to implement Section 3.160(b) of the Act. The Board accepted that
proposal for hearing on December 1, 2005.
See
In the Matter of: Clean Construction or Debris
Fill Operations Under PA 94-272, R06-19 (Dec. 1, 2005).
The Board grants the AGO’s motion for leave to file a reply and Silbrico’s motion for
leave to file a reply. The AGO’s reply and Silbrico’s surreply are both accepted. The motion to
dismiss raises two issues: Silbrico’s failure to comply with the Board’s rules because its service
list did not include the DNR or the AGO, and whether or not the Board has statutory authority to
promulgate the rule sought by Silbrico.
Generally, for the purposes of ruling on a motion to dismiss, all well-pled facts contained
in the pleading must be taken as true, and all inferences from them must be drawn in favor of the
non-movant. Import Sales, Inc. v. Continental Bearings Corp., 217 Ill. App. 3d 893, 577 N.E.2d
1205 (1st Dist. 1991); Callaizakis v. Astor Development Co., 4 Ill. App. 3d. 163, 280 N.E.2d 512
(1st Dist. 1972);
see also
Univ. Prof’ls, Local 4100 v. Stukel, 344 Ill. App. 3d 856, (1st Dist.
2003).
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As to the first issue, the Board finds that no prejudice resulted from Silbrico’s initial lack
of service. Both the DNR and AGO have now been served, and the only substantive activity to
date on this case stems from a motion to dismiss filed by the AGO itself. Were the Board to
grant a motion to dismiss on this ground, Silbrico would, presumably, refile with proper service.
In the interests of administrative economy, and in light of the fact that proper service was
ultimately effectuated, the Board will not require Silbrico to re-file its rulemaking petition.
It should also be noted that dismissal of a site-specific rulemaking is addressed in Section
102.212 of the Board’s procedural rules.
See
35 Ill. Adm. Code 102.212. Section 102.212
contemplates the dismissal of a site-specific rulemaking proposal if the proponent does not
satisfy the content requirements of Section 102.210, or for a variety of other reasons, but does
not provide that the failure to comply with the service requirements of Section 102.208 is
grounds for dismissal.
The AGO next asserts that the petition should be dismissed as without statutory authority
because Silbrico seeks to have manufacturing process waste reclassified as clean construction
and demolition debris or, in the alternative, that the proposed rule would constitute an
unauthorized expansion of the waste exception in Section 3.160(b) of the Act.
The Board finds that it has the authority to grant Silbrico relief from the otherwise
applicable requirements of its waste disposal rules. But, during the rulemaking process the
Board and participants often devise alternative regulatory language that better fits the Board’s
existing regulatory scheme.
At this point, the Board is not prepared to say that it lacks the authority to adopt the rule
Silbrico is proposing. The plain language proposed by Silbrico does not attempt to reclassify its
perlite waste as clean construction or demolition debris. Rather, the language first limits the
regulation to the two perlite waste streams from Silbrico’s Hodgkins facility, and then provides
that “the specified waste streams may be disposed of in a “clean fill” facility that accepts only
“clean construction and demolition debris.” Pet. at 3.
The proposed rule would merely allow Silbrico to dispose of its perlite waste in a facility
that is allowed to accept clean construction and demolition debris, it would not reclassify that
material as clean construction or demolition debris. Under that same rationale, the Board is not
persuaded that the rule, if ultimately enacted, would constitute an unauthorized expansion of the
waste exception in Section 3.160(b) of the Act. That said, however, after hearing the Board
could well determine that the same ends are better accomplished in another manner. For
example, the Board has previously granted relief from landfill regulations rather than reclassify a
material.
See
Proposed Alternative Standards for Coal Combustion Power Generating Facilities
Waste Landfills; 35 Ill. Adm. Code Part 816, R96-1 (Aug. 15, 1996).
CONCLUSION
The motion to dismiss is denied. However, the AGO has raised issues that are properly
before the Board. All parties are welcome to address these issues further during the pendency of
this rulemaking.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on December 15, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
