ILLINOIS POLLUTION CONTROL BOARD
August 17, 2006
IN THE MATTER OF:
PROPOSED AMENDMENTS TO SOLID
WASTE LANDFILL RULES, 35 ILL. ADM.
CODE 810 AND 811
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R07-8
(Rulemaking - Land)
ORDER OF THE BOARD (by A.S. Moore):
On July 27, 2006, the Board received a proposal (Prop.) to amend Parts 810 and 811 of
the Board’s regulations, which concern non-hazardous solid waste management facilities, and a
request for waiver of the 200-signature requirement (Req.). 35 Ill. Adm. Code 810, 811. These
filings were submitted by the Illinois Chapter of the National Solid Wastes Management
Association (NSWMA), which states that it is “a not-for-profit trade association representing
companies that provide solid, hazardous, and medical waste collecting, recycling, and disposal
services.” Req. at 1. NSWMA also requests that the Board waive the requirement that it must
submit copies of materials to be incorporated by reference within the proposed rule. Prop. at 18;
see
35 Ill. Adm. Code 102.202(d).
For the reasons stated below, the Board accepts the proposal for hearing but directs
NSWMA to address two informational deficiencies in writing prior to any hearing scheduled in
this proceeding at such time as directed by the hearing officer. The Board also grants
NSWMA’s request for waiver of the 200-signature requirement and its request that the Board
waive the requirement that NSWMA file copies of materials to be incorporated by reference in
the proposed rule.
BACKGROUND
In its proposal, NSWMA states that it seeks to update the Board’s regulations to reflect
current solid waste disposal practices. Prop. at 1. NSWMA notes that many of the rules
proposed for amendment have been in effect since 1990.
Id
.;
see
Development, Operating and
Reporting Requirements for Non-Hazardous Waste Landfills, R88-7 (Aug. 17, 1990). NSWMA
states that its proposal reflects both practical experience with implementing these regulations and
increased technical and scientific knowledge. Prop. at 1. NSWMA describes its proposal as “the
culmination of almost seven years of discussions” with the Illinois Environmental Protection
Agency (Agency).
Id
. NSWMA states that the Agency “supports and concurs with all of the
proposed amendments.”
Id
.
NSWMA expects the following benefits to result from adoption of its proposal. Prop. at
1. First, “it will eliminate or modify certain regulations that are no longer technically reasonable
in that they do not reflect current and accepted practice in the industry.”
Id
. Second, NSWMA
believes that the proposal will generate more accurate data, leading to improved regulatory
decision-making and environmental protection.
Id
. Third, NSWMA believes that the proposal
will improve efficiency both for the Agency and for regulated solid waste facilities.
Id
.
2
MOTIONS
As stated above, NSWMA filed two motions with its proposal: a request for waiver of
the 200-signature requirement and a request that the Board waive the requirement that NSWMA
must submit copies of materials to be incorporated by reference within the proposed rule. No
participant has filed a response to these motions. If a party files no response to a motion within
14 days, the party will be deemed to have waived objection to the granting of the motion.
See
35
Ill. Adm. Code 101.500(d). The Board will address NSWMA’s two motions in turn.
Motion for Waiver of 200-Signature Requirement
The Board’s procedural rules require a proponent other than the Agency or the
Department of Natural Resources to submit “a petition signed by at least 200 persons.” 35 Ill.
Adm. Code 102.202(g). With its rulemaking proposal, NSWMA filed its request for a waiver of
that requirement. In that request, NSWMA states that it is a trade association including
“numerous member companies in Illinois which serve every region of the State of Illinois.” Req.
at 1. NSWMA further states that it has long participated in rulemaking proceedings before the
Board and that its members requested that it submit this proposal.
Id
. at 2. NSWMA further
states that preparation of a petition with 200 signatures “would present an unnecessary burden in
both time and expense.”
Id
. Consequently, NSWMA requests that the Board grant this request
for a waiver of the petition requirement. The Board grants NSWMA’s request and waives the
signature requirement.
Motion to Waive Filing Requirement
NSWMA requests that the Board waive the requirement that it must submit copies of
materials to be incorporated by reference within the proposed rule. Prop. at 18;
see
35 Ill. Adm.
Code 102.202(d). NSWMA states that “[t]he materials incorporated by reference in [proposed]
Section 810.104 are portions of federal regulations and US EPA documents consisting of
approximately 1,000 pages. This reference material is likely available at the IEPA/Board library
and is readily available on-line.” Prop. at 18.
Specifically, NSWMA refers to a United States Environmental Protection Agency
publication entitled “Test Methods for Evaluating Solid Waste, Physical/Chemical methods,
EPA Publication SW-846 (Third Edition, 1986 as amended by Update I, II, IIA, IIB, III, IIIA and
IIIB (June 2005)).” Prop., Att. A at 1. Because the Board has this Publication SW-846 in its
possession, the Board grants the request and waives the requirement to file that document under
Section 102.202(d). NSWMA also refers in its request to waive this filing requirement for 40
C.F.R. 258.Appendix I (2006). Because the Board also has this appendix in its possession, the
Board grants the request and waives the requirement to file that document under Section
102.202(d).
PROPOSAL CONTENT REQUIREMENTS
3
In reviewing the proposal for compliance with the rulemaking proposal requirements of
35 Ill. Adm. Code 102.202, the Board has identified deficiencies. First, the Board notes that the
proposal states only:
NSWMA will present testimony in support of this proposal, as may
representatives of one or more of its member companies. It is also anticipated
that one or more Illinois EPA witnesses will testify in support of the proposed
amendments as well. Prop. at 18.
While NSWMA indicates that it will file testimony according to any schedule set by the hearing
officer (
id
.), the Board finds that these statements do not outline the proponent’s testimony
sufficiently to constitute the required “synopsis of all testimony to be presented by the proponent
at hearing.” 35 Ill. Adm. Code 102.202(c).
Second, NSWMA stated that, “[i]n conjunction with the presentation of testimony,
witnesses may reference published studies or research reports used or considered in the
development of these proposed amendment.” Prop. at 18. The Board finds that this statement
does not fully address the applicability of or provide the information requested in the “published
study or report” requirement of Section 102.202(e) of the Board’s procedural rules. 35 Ill. Adm.
Code 102.202(e);
see also
35 Ill. Adm. Code 102.202(k) (justification for inapplicability or
unavailability).
CONCLUSION
The Board accepts this proposal for hearing and directs the assigned hearing officer to
proceed expeditiously under the rulemaking provisions of the Environmental Protection Act and
the Board’s procedural rules. 415 ILCS 5/27, 28 (2004); 35 Ill. Adm. Code 102. After
conducting one or more hearings on this proposal the Board will consider whether to proceed to
first notice. The Board requests, however, that NSWMA address the two informational
deficiencies noted above in writing prior to any hearing scheduled in this proceeding at such time
as directed by the hearing officer.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on August 17, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
