ILLINOIS POLLUTION CONTROL BOARD
July
16,
1987
IN THE MATTER OF:
)
RCPA UPDATE,
USEPA REGULATIONS
)
P86—46
(7—1—86 THROUGH 9—30—86)
)
FINAL CRDEB.
ADOPTED
RULE
CPINION OF THE BOAPI
(by J.
Anderson):
By a
separate Order, pursuant
to Section
22.4(a)
of the
Environmental Protection Act
(Act), the
Board
is amending the
RCPA regulations.
On October
9,
1986,
the Board
opened this docket
for
the
purpose of updating the RCPA rules
to agree with
recent USEPA
amendments.
Section 22.4 of the Act governs adoption of regulations
establishing
the RCPA program
in
Illinois.
Section
22.4(a)
provides
for quick adoption of regulations which are “identical
in substance”
to federal regulations;
Section
22.4(a) provides
that Title VII of
the Act and Section
5 of the Administrative
Procedure Act
shall
not apply.
Because this rulemaking
is not
subject
to Section
5 of the Administrative Procedure Act,
it
is
not subject
to first
notice or
to second notice review by the
Joint Committee on Administrative Rules
(JCAP).
‘Ihe federal
PCFA
regulations are
found at
40 CFP 260 through
270,
and
280.
This
rulemaking updates Illinois’ PCPA rules to correspond with
federal
amendments during
the period July
1 through September 30,
198?.
The Federal Registers utilized are
as follows:
51
Fed.
Peg.
25350
July
11, 1986
51 Fed. Peg.
25422
July 14,
1986
51
Fed.
Peg.
28295
August
6,
1986
51 Fed. Peg.
28556
August
8,
1986
51
Fed. Peg.
286(3
August
8,
1986
51
Fed.
Peg.
29429
August
15,
1986
51
Fed.
Peg.
33612
September
22,
1986
The Board appreciates the
assistance of Morton Dorothy
in
drafting the proposal.
79-676
—2—
PUBLIC
COMMENT
The Board proposed these
rules
for public comment on March
.19,
1987.
The proposal appeared on April
17,
1987 at
11
Ill.
Peg. ?958.
The
Board
received the following public comment:
PC
*1
Illinois Department of Insurance, April
13,
1987
PC #2
United States Environmental Protection Agency
(USEPA), May
21,
1987
PC
#3
USEPA,
May
27,
987
PC
*4
Illinois Environmental Protection Agency (Agency),
June
22,
1987
PC
*5
Joint Committee on Administrative Rules
(JCAP), May
7,
1987
The Board
has accepted the Agency’s comment, although it was
filed significantly after
the end of the comment period.
The Board
received, during the public comment period,
a
series of questions
from the Joint Committee on Administrative
Pules
(JCAP).
Although Section 22.4(a)
of the Act exempts these
fast—track
“identical
in
substance”
rulernakings
from
formal
interaction with
JCAR,
the
Board
will
attempt
to
respond
to
JCAR’s section specific
ccniments,
and, at
the end of the Cpinion,
to
JCAP’s
general
questions.
The
Board
also
received
codification
comments
from
the
Administrative
Code
Unit.
3ISTCPY
OF
RCPA
and
UIC
ADOPTION
The
Illinois
RCRA and UIC (Underground Injection Control)
rules,
together
with
more
stringent
state
rules
particularly
applicable
to
hazardous
waste,
include
the
following:
702
RCFA
and
UIC
Permit
Programs
703
PCPA
Permit
Program
704
UIC
Permit
Program
705
Procedures
for
Permit
Issuance
709
Wastestream
Authorizations
720
General
721
Identification and Listing
722
Generator Standards
723
Transporter
Standards
724
Final
TSD
Standards
725
Interim Status TSD Standards
726
Specific castes
and Management
Facilities
729
Landfills:
Prohibited Wastes
730
UIC Cperating Requirements
731
Underground Storage ~anks
79.677
—3—
Special procedures
for RCRA cases
are included
in Parts 102,
103, 104 and 106.
Adoption of these
rules has proceeded
in several stages.
The Phase
I
RCRA rules were adopted and
amended
as follows:
P81—22
45
PCB
317,
February
4,
1982,
6
Ill.
Peg.
4228,
April
23,
1982.
P22—18
51 PCB
31, January 13,
1983,
7
Ill.
Peg.
2518,
March
4,
1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47 Fed.
Peg.
21043).
The CIC rules were adopted
as follows:
P81—32
47 PCB
93,
May
13,
1982;
October
15,
1982,
6
Ill.
Peg.
12479.
The UIC rules were amended
in
P82—18, which
is referenced
above.
‘Ihe
UIC rules were
also amended
in P83—39:
P83—39
55 PCB
319,
December
15,
1983;
7 Ill.
Peg.
17338,
December
20,
1983.
Illinois received UIC authorization February 1, 1984.
The
Board has updated the UIC rules:
P85—23
June
19,
1986;
IC
Ill.
Beg.
13274,
August
8,
1986.
P86—27
Dismissed April
16, 1987
(No USEPA amendments
through 12/31/86).
The Phase
II RCRA rules
included adoption of Parts
703 and
724, which established
the permit program
and final
TSD
standards.
The Phase
II rules were adopted
and amended
as
follows:
P82—19
53 PCB 131, July 26,
1983,
7
Ill.
Peg.
13999,
October
28,
1983.
P83—24
55 PCB
31, December
15,
1983,
8
Ill. Beg.
200,
January
6,
1984.
On
September
6,
1984,
the
Third
District
Appellate
Court
upheld
the Board’s
actions
in adopting P82—19 and P83—24.
(Commonwealth Edison et
al.
v.
IPCB,
127 Ill.
App.
3d 446;
468 NE
2d
1339
(Third
Dist.
1984).)
The Board
updated
the
PCPA rules
to correspond with USEPA
amendments
in several dockets.
The period of the USEPA rules
covered by the update
is indicated
in parentheses:
79.678
—4—
P84—9
64 PCB
427, June
13,
1985;
9
Ill.
Beg.
11964,
effective
July
24,
1985.
(through
4/24/84)
P85—22
67
PCB 175,
479,
December
20,
1985
and
January
9,
1986;
10
Ill.
Beg.
968,
effective
January
2,
1986.
(4/25/84
——
6/30/85)
P86—1
July
11,
1986;
10
Ill.
Peg.
13998,
August
22,
1986.
(7/1/85
——
1/31/86)
P86—19
October
23,
1986;
10
Ill.
Peg.
20630,
December
12,
1986.
(2/1/86
——
3/31/86)
P86—28
February
5
and
March
5,
1987;
Il
Ill.
Peg.
6017,
April
3,
1987.
Correction
April
16,
1987;
11
Ill.
Beg.
8684,
May
1,
1987.
(4/1/86
——
6/30/86)
P86—46
This
Docket.
(7/1/86
——
9/30/86)
P87—S
Next
Docket, proposed May 14,
1987
(10/1/86
——
12/31/86)
Illinois
received final authorization
for the BCPA program
effective January
3.,
1986.
The
Board added
to
the
federal listings of hazardous waste
by listing dioxins pursuant
to Section 22.4(d)
of the Act:
P84—34
61 PCB
247, November 21, 1984;
8 Ill.
Beg.
24562,
effective December
11,
1984.
This was effectively repealed
by P85—22, which included
adoption of USEPA’s dioxin listings.
The Board has adopted
a
USEPA delisting
at the request
of Amoco:
P85—2
April
24, 1986;
10
111.
Peg.
8112,
effective May
2,
1986.
The Board has procedures
to be
followed
in cases before
it
involving
the PCBA rules:
P84—10
62
PCB
87,
349,
December
20,
1984 and January 10,
1985;
9
Ill.
Peg.
1383,
effective
January
16,
1985.
The
Board
also adopted
in Part
106
special procedures to be
followed
in
certain
determinations.
Part
106
was
adopted
in
P85—
22,
which is listed above.
Part 106
is amended below.
The Board has also adopted requirements limiting and
restricting
the landfilling of liquid hazardous waste, hazardous
wastes containing halogenated compounds and hazardous wastes
generally:
79.679
—5—
P81—25
60 PCB 381,
October
25,
1984;
8 Ill.
Peg.
24124,
December
4,
1984;
P83—28
February
26,
1986;
IC
Ill.
Peg.
4875,
effective
March
7,
1986.
P86—9
Emergency
rules
adopted
October
23,
1986;
10
Ill.
Peg.
19787,
effective
November
5,
1986.
The
Board’s
action
in
adopting
emergency
rules
in
P86—9 was
reversed
(CBE and IEPA v.
IPCB et
al.,
First District, January
2?,
1987).
DETAILED DISCUSSION
The USEPA amendments involved
in this update
are summarized
as follows:
51 F?
1926
25350
July
11
Liability
insurance
25422
July
14
Tank systems
28295
August
6
Corrections
to listings
28556
August
8
Corrections
to
biennial
reporting
requirement
28663
August
8
Exports of hazardous waste
29429
August
15
Corrections
to tank systems rules
33612
September
22
Correction
to listing of spent
pickle licuor
Most
of
the
amendments
are
drawn
from
the
July
14
tank
systems
rules.
The
second
largest
set
are
drawn
from
the
August
8
requirements
concerning
exports
of
hazardous
waste
to
other
countries.
The
July
11
rules
add
a corporate guarantee mechanism
as
an
alternative
to liability insurance.
Section
106.401 et
seq.
The Board
is amending the procedures
for solid waste
and
boiler determinations which were adopted
in P85—22.
These are
now generic procedural
rules which the Board will reference
in
the substantive
rules whenever
adjusted
standards procedures are
appropriate.
The
rules
are
discussed
below
in
connection
with
Sections
724.293
and
725.293,
which
reference
the
adjusted
standards procedures.
JCAP has questioned whether these
rules are
a part of the
PC?!’
rules,
and
whether
they
can
be
adopted
by
way
of
“identical
in
substance”
procedures.
(PC
#5).
This
Subpart
is
a
part
of
the
PC?!’
rules.
The
Board
has
cited Section
22.4
of
the
Act-
in
the
authority
note.
These
rules
will
be
submitted
to
USEPA
as
a
part
of
the
PC?!’
program
package.
79.680
—6—
The USEPA rules
include decisions which
are
to be made by
the authorized states.
As noted
below,
in
Illinois there
is
a
question as to whether
a decision involves applying
a Board
rule
in
the context of permit issuance by the Agency,
or whether
the
action
is one of determining
an environmental control
standard,
which has to be done by the Board.
When the decision
is by the
Agency,
the permit rules
in Parts
702 through 705 usually form
a
procedural framework for decision.
These procedures are similar
to the permit application procedures before
USEP!’,
so
it
is often
possible
to adopt
the USEPA rules verbatim.
When the decision
has
to be made by the Board,
the procedural context
is much
different.
It
is necessary to have some sort of
a
petition. to
the Board
to
initiate the process, and
it
is necessary to
coordinate
the Board’s action with the permit application
process.
These procedures would
be used when the Board exercises
adjusted standards authority pursuant
to Section 28.1 of the
Act.
These
rules are identical
in substance with USEPA rules.
The Board grants or denies the request based on the same
standards as USEPA.
However, the procedural
context has been
modified
to accornodate
the division of authority between the
Board
and Agency as required by the Act, and
to comply with
specific procedural
requirements
in the Act for adjusted
standards.
Section
703.155
This
Section
is
drawn
from
40
CFP
270.72,
which
was
amended
at
5
Fed.
Peg.
25471.
Operators
of
interim
status
facilities
are
allowed,
without
filing
a
permit
application,
to
modify
tank
systems
to
meet
the
new
requirements
discussed
below
in
connection
with
Section
725.293.
Section
703.183
This
Section
is
drawn
from
40
CFB
270.14,
which
was
amended
at
El
Fed.
Beg.
25471.
The
amendments
modify
the
contents
of
the
general
Part
B
application
to
request
information
related
to
the
new
requirements
for
tank
systems.
Section
703.202
This Section
is drawn
from
40
CFP
270.16,
which
was
amended
at
51
Fed.
Peg.
25471.
The portion of the application relating
specifically to
tank systems has been largely replaced.
Section
703.202(h)
deals with alternative design and operating practices
for tank systems.
As
is discussed elsewhere,
the Board will
grant alternatives pursuant to
a petition
for adjusted
standards.
Section 703.202(h)(3)
has been added
to require
the
permit applicant
to include
a copy of the
Board
Order granting
an
adjusted
standard, or
a copy of the petition
if
the matter
is
still pending.
79.681
—7—
JCAR
questions
why
Section
703.202(h)(3)
is
not
worded
verbatim
with
USE?!’
rules.
(PC
15).
As
is
discussed
below
in
the
general
response
to
JCAP
and
in
the
discussion
of
Part
106,
the
Board
has
above
amended
its
adjusted
standards
rules
which
are
to
be
used
in
certain
cases
in
which
the
USE?!’
rules
specify
a
decision
which
is
the
equivalent
of
determining
an
environmental
control
standard.
40
CFP
270.16(h)
is
the
portion
of
the
permit
application
in
which
USE?!’
requests
information
which
would
lead
to
a
tank
system
variance
under
USE?!’
rules.
In
the
Illinois
rules,
the
“variance”
has
to
be
handled
through
the
adjusted
standards
mechanism.
The
information
requested
in
40
CFF 270.l?(h)(3)
is
requested
by
way
of
35
Ill.
Adm.
Code
106.413
and
724.293.
All the applicant has
to do
is advise the Agency as
to
whether
alternative standards have been granted,
or whether
a
petition
is
pending.
This
has
been
provided
in Section
703.202(h)(3).
These
rules
taken
together
are
identical
in
substance
to
the
USE?!’
rules
in
that
the
same
people
get
the
same
“variances”
in
the
same
circumstances.
However,
the
procedures
have
been
modified
to
reflect
requirements
of
the
Environmental
Protection
Act.
Section
720.102
(Not
amended)
This
Section
deals
with
confidentiality.
USEPA
amended
its
confidentiality
rule,
40
CFR
260.2,
at
51
Fed.
Peg.
28682,
to
add
specific provisions regarding confidentiality of information
supplied
to
the State Department
regarding exports of hazardous
waste.
The
Board
has
not
adopted
an
equivalent
for
two
reasons.
First,
exports
will
be
primarily
administered by USE?!’,
as
is
discussed
in
connection
with
Section
722.150.
Second,
to
the
extent
the
Agency
may
become
involved
in
this,
confidentiality
must
be
handled
pursuant
to
35
Ill.
Adin.
Code
120,
as
is
already
provided
in
Section
720.102.
Section
720.110
This
Section
is
drawn
from
40
CFP
260.10,
which
was
amended
at
51
Fed.
Peg.
25471.
The
amendments
add
definitions related
to
tank
systems.
The
following
definitions
have
been
added:
Aboveground
tank,
ancillary
equipment,
component,
corrosion
expert,
existing
tank
system,
inground
tank,
installation
inspector,
leak—detection system, new tank system, onground tank,
sump, tank system, underground
tank, unfit—for—use
tank system
and
zone of engineering control.
The Board
has also made several minor corrections
to other
definitions.
(PC 14).
Section 720.111
This Section
incorporates by reference materials used
in
Parts
720 through
725.
It has
no close counterpart
in the CFP.
The Board
has
amended this Section by adding
references to
several
items
used
in
the new requirements
for
tank systems.
79.682
—B—
The
Administrative
Procedure
Act
(A?!’)
requires
that
the
Board
limit
incorporations
by
reference
to
materials
readily
available
to the public, that
it provide sufficient information
for the public
to find the documents and
that
it not incorporate
future
amendments
or
editions.
The
Board
has
modified
these
rules
to
comply
with
the
A?!’
requirements.
The
Board
has
consolidated
the
incorporations
into
a
single
Section,
which
is
referenced
when
the
incorporations
are
used
in
the
other
rules.
The
Board
has
to
include
with
incorporations
more
information
than
USE?!’.
It
is
more
efficient
to
provide
this
one
time,
rather
than
repeating
it
throughout
the
rules.
Most
of
the
incorporations
are
standards set by industry or
standards organizations.
The standards are known by the initials
of the organization, such as ANSI,
API and
ASTM.
The Board
has
rearranged
this Section
into an alphabetical
list
of
organizations by initials.
This allows
the
Board
to shorten the
Section
since
it
is
not
necessary
to
repeat
the
full
names
and
addresses
of
the
organizations,
some
of
which
have
several
standards
used.
The
Board
has
added
the
statement,
now
required
by
the
APA,
that
the
incorporations
include
no
future
editions
or
amendments.
The
Board
has
obtained
a
copy
of
the
Steel
Tank
Institute
(STI)
“Standards
for
Dual
Wall
Underground
Steel
Storage
Tanks.”
S’II
has
indicated
by
telephone
that
this
is
the
1986
edition,
and
the
Board
has
used
this
date
in
the
incorporation by reference.
However, the date does not appear on
the document.
The Board will maintain
a copy of this document
in
case questions should
arise
later
as
to which edition was
incorporated.
The Board
has deleted the availability statements concerning
the Federal Register Office
and the Illinois
State Library.
USE?!’ has not
indicated whether
the newly incorporated material
has
in fact been deposited
in the Federal Pegister Cffice.
Since
these statements are not necessary,
the Board has deleted them.
Section 721.104
This Section
is drawn from 40 CFR 261.4, which was amended
at
51 Fed.
Peg.
25471.
The amendment
to Section 72l.l04(a)(8)
adds an exclusion for secondary materials that are reclaimed and
returned
to the original
production process where
storage occurs
in
a closed tank system.
Section 721.105
This Section
is drawn from 40 CFB 261.5,
which was amended
at
51 Fed.
Peg.
28682.
Small quantity generators will
no longer
be conditionally exempt
if they export hazardous waste
to other
countries.
79.683
—9—
Section 721.106
This Section
is drawn
from 40 CFB 261.6,
which was amended
at
51
Fed.
Beg.
28682.
The exclusion
for reclaimed ethanol
under
Section 72l.106(a)(3)(A) may be subject
to the new provisions
regarding exports of hazardous waste.
40 C?? 26l.6(a)(3)(i)(B) provides that:
“Transporters
may not accept
a
shipment
if he knows
the shipment does
not
conform to
the
EPA Acknowledgement of Consent,
...“
(sic).
The
Board
has corrected
a number of grammatical
and stylistic
problems with this Section, including changing
it to read:
“shall
not accept.”
JCAP says that this “alters the entire scope
of that Section.”
(PC
#5).
The Board
believes that its rule
is
identical
in substance.
In the
first place, the provision
in
question does not relate
to
the
“scope”
of the Section.
In the
second place,
the Board believes that
USE?!’ intended
to state
a
prohibition.
One has
to reach
to come
to
the conclusion that
transporters have an
election
to comply or
not
to comply with the
acknowledgement of consent.
If the transporter
had this option,
the entire attempt
to control
exports of hazardous waste would
fail.
As
a matter
of style,
the Board
has attempted
in these
rules
to use “shall”
when stating prohibitions,
and
to reserve
“may”
for provisions in which an option
is open.
Section 721.132
This Section
is drawn
from 40 CFP 261.32, which was amended
at
51
Fed.
Peg.
33612.
This again modifies the definition of
1(062,
spent pickle liquor.
This listing
is now defined
in terms
of waste
from facilities within SIC Codes 331 and
332.
The Board
has added
a reference
to the definition of “SIC Code” which was
added
to Section
720.110
in
a prior rulemaking.
The definition
in turn refers to Section 720.111, which includes full
information required under the A?!’.
Section 721.133 and Appendix
H
(not amended)
These are drawn from 40 CFR 261.33
and Appendix VIII which
were amended
at
51 Fed.
Peg.
28298.
USE?!’ proposed
to correct
several listings,
and
to add Chemical Abstracts reference numbers
to
the listings.
The
USE?!’ publication
is supposed
to make no substantive
changes.
It
includes
a
table which purports
to list the changes
to the listings, and
also the listings as modified.
However, on
careful
examination,
not
all of the changes
in the table have
actually been made
to the listings as published.
Furthermore,
the changes indicated
in the table comprise only about
5
of the
changes which have actually been made.
The Board
noted
these
problems and solicited comment
in the Proposed Opinion.
USE?!’
indicated that it
is aware of the problems and will publish
a
correction at
some time
in
the future.
(PC #2 and #3).
USE?!’
indicates that the
states are not expected
to adopt
the
79.684
—10—
amendments pending correction.
The Board will follow this
course.
These Sections will be dropped from
the proposal.
Section 722.134
This Section
is drawn
from 40 CFP 262.34,
which was amended
at
51
Fed.
Peg.
25471.
This modifies the accumulation times
for
generators using
tank systems.
The Board
notes that this Section
includes, without
amendment,
the provisions relating
to extension of accumulation
times, which were commented on
in P86—19 and P86—28.
The Board
solicited additional
comment on these provisions
in the Proposed
Opinion, but received
none.
Section 722.141
This Section
is drawn
from 40 C?? 262.41,
which was amended
at
51
Fed.
Beg.
28682.
The Board rule differs
from the
USE?!’
rule
in that,
in P84—9,
the Board declined
to adopt
the
USE?!’
biennial report requirement, but
instead retained the annual
report.
The Board
cited Section
20.1 of the Act, which requires
the Agency
to prepare
an annual
report
for the public
identifying
the types
and
quantities of hazardous
waste managed
in
the
State.
It would
not
be possible
for the Agency
to prepare this
report without the annual report requirement which
was
in
the
regulations
at the time Section 20.1 was adopted.
The present amendments exempt exported waste
from the report
requirement.
Exports are reported
instead under
Section 722.156.
JC!’P claims that Sections 722.l4l(a)(3)
and
(a)(4)
include
requirements which
are not found
in the
federal regulations.
(PC
#5)
The Board
cannot find any difference
in the language, except
that “EPA”
has been changed
to
“USE?!’.”
The Section references
national identification numbers which are issued by USE?!’.
The
Board
has changed
the designation
to avoid confusion with similar
numbers issued
by the Agency pursuant to
35 111.
!‘dm.
Code 809.
Section 722.150
et
seq.
USE?!’ modified
the requirements concerning exports, and
imports, of hazardous waste at
51
Fed.
Beg.
28682.
An
exporter
has to notify USEPA
60 days prior
to shipment.
USE?!’ notifies
the receiving country through the State Department.
If the
country consents to accept
the waste,
the U.S.
Embassy cables
an
“Acknowledgement of Consent”
to USE?!’.
The exporter has to
attach
the Acknowledgement to
the manifest or
shipping paper.
A
copy of the manifest must be given
to U.S.
Customs at the point
of departure
from the United States.
This system
is intrinsically one which only
USE?!’ can
administer.
USE?!’ has indicated
that the Board can use
incorporation by reference of much of this,
although
it should
79-685
—“-
add
requirements of notice
to the Agency.
(PC
#3) The Board
has
modified
the proposal along these lines.
Section
722.150(d)
and
(e),
which
concern
imports,
have
been
moved
to
Subpart
F,
Section
722.160.
Section
722.151,
which
concerns
farmers,
has
been
moved
to
Subpart
G,
Section
722.170.
Section
722.156
This
Section
is
drawn
from
40
CFP
262.56,
which
was
amended
at
51
Fed.
Peg.
28682.
JCAR
claims
that
Section
722.156(a)(5)
is
missing
an
exception
for
small
quantity
generators
which
is
contained
in
the
federal
rule.
(PC
#5).
The
language
quoted
by
JC!’B
is
in
the
Board
rule.
Section
723.120
The
rules
governing
manifests
for
transporters
have
been
amended
to
reflect
the
new
rules
on
exports
of
hazardous
waste.
JCA?
questions
the
Board’s
use
of
“shall
not”
in
Section
723.120(a)
to
state
a prohibition which
USE?!’ states as “may
not.”
(PC
#5)
The
language
is virtually identical
to that
discussed
above
in
connection
with
Section
721.106,
and
the
Board
will
not
repeat
the complete discussion here.
The Board has made
editorial
changes
to
correct
graminer
and
to
follow
its
style,
but
the
rule
is
identical
in
substance.
Section
724.115
Section 724.lls(b)(4) has been amended
to reference the
inspection schedule rules
for
tank systems, which are discussed
below.
51 Fed.
Peg.
25471 contains an error
which has been
corrected.
“Malfunction of any operator error”
has been changed
to
“Malfunction
or
any
operator
error.”
Section 724.173
Section 724.173(b)(6) has been amended
to
reference testing
as required under
the
tank systems rules.
51
Fed.
Peg.
25471
contains
an
error
which
has
been
corrected.
USE?!’
has
also
added
a reference to the groundwater protection rules of Subpart
F,
so
that the operating
record must now include analytical data where
required by “Subpart
F
and Sections 724.291...”
This has been
corrected
to “Subpart
F or Sections 724.291...”
Section
724.175
40
CFP
264.75
was
amended
at
51
Fed.
Peg.
28556.
Section
724.175(h)
and
(i) have been added
to require generators which
treat, store or dispose of waste on—site
to
report on their
efforts
to
reduce
volume
or
toxicity.
Note
that
the
Board
rule
will require an annual
report,
rather
than
a biennial
report.
As
~
declined
to adopt
the biennial
79.686
—12—
Section
724.210
and
724.240
Section 724.210(b)(3) has been added
to state
that the post—
closure rules apply to certain tank systems,
as well as
to
landfills,
and
to certain piles and lagoons.
Under new Section
724.240(b)(3), such tank systems would have
to provide financial
assurance
for
post—closure
care.
Section
724.247
The
liability
insurance
requirements
were
amended
at
51
Fed.
Peg.
25354.
Section 724.247(g)
has been added
to allow parent
corporations which meet the financial
test to give
a guarantee
in
lieu of liability insurance for the
subsidiary.
As provided
in
Section 724.247(a)(2) and
(3), and
(b)(2)
and
(3), the operator
can meet the liability insurance requirement
through
a
combination
of
insurance
and
financial
test,
or
a
combination
of
insurance
and
parent
guarantee.
40 CFP 264.147(a)(2)
is worded
slightly differently from
(b)(2).
For
sudden accidental occurrences,
the operator can meet
the insurance requirement
“by passing
a financial
test or
using
the corporate guarantee
...
as specified
in paragraph (g).”
For
non—sudden accidental occurrences,
the operator can meet the
requirement
“by
passing
a
financial
test
or
using
the
corporate
guarantee
...
as
specifed
in
paragraphs
(f)
and
(g).”
This
assyminetry is repeated
in Section
265.147.
The
Board
has
modified
the language of paragraph
(a)(2)
to make it clear
that
it refers
to the financial
test of paragraph (f).
(PC #4).
The third sentence of paragraph
(g)(1)
seems
to contain an
error which the Board has corrected.
“The guarantee must meet
the requirements
for owners and operators...” has been changed
to
“The guarantor must meet
the requirements for owners and
operators.”
The introductory material
to
51
Fed.
Peg. 25354
refers
to
a
Section 264.147(g)
which
is to be redesignated
as
(h).
This
paragraph, which includes past compliance dates, has never been
adopted by the Board.
40 CFB 264.147(g)(2) provides that corporate guarantees may
be used only if the Attorney General
or the
insurance
commissioner of two
states submit written statements
to USEPA
that the guarantee
is valid
and enforceable.
The statements must
come from officials
in the state
in which the facility is located
and the state
in which the guarantor
is
incorporated.
There are
a number of problems involved
in
translating this into State law.
There
are several possible legal objections
to this type ot
guarantee.
The
first
is that
the guarantor
is
in
a sense writing
an
insurance contract, and may be subject
to regulation as
an
insurer.
The second
objection has
to do with the power
of the
79.687
—13—
guarantor.
It may be
incorporated under
a state law which does
not allow business corporations
to write guarantees or
insurance,
or
its articles of incorporation may
so limit
it.
The third
objection
is whether
the person signing
the guarantee is an agent
of the corporation with power
to bind the corporation.
The
fourth objection has
to do with the law of guarantees, which may
be very restrictive
in
some states.
There are also practical
problems which would confront
states
if they had
to collect on
these guarantees
in the courts of other
states, since,
unlike
USE?!’,
they do not have offices and attorneys
in all states.
The USE?!’ rule seems
to require case—by—case certification
where
USE?!’
administers
the
PC?!’
program.
For
the
Illinois
program,
the
facility
is
always
in
Illinois.
Therefore,
the
Board
can
get
generic
certification
as to legality in Illinois.
The
Illinois
Department of
Insurance
has
advised
the
Board
that
guarantees
from
parent
corporations
would
not
be subject
to its
regulation.
(PC
#1).
The problem
is how to get certification as
to out—of—state guarantors.
The Board
addressed several options
in
the Proposed Opinion
for getting certification as
to out—of—state guarantors.
These
included requiring each guarantor
to produce
an Attorney
General’s opinion for case—by—case review by the Agency,
or
requesting generic certifications
from nearby states
to form the
basis of
a list of acceptable states
in the rule.
The rules as
adopted limit guarantees to those
in which
the guarantor subjects
himself
to Illinois
law.
This approach resolves some problems
with the
USE?!’ rule, and appears to be easy
to administer.
(PC
#4).
The USE?!’ rule requires
a statement from the state
of
incorporation of
the guarantor.
However, the validity of this
type of guarantee
is governed by the law of the place where
it
is
executed, not the law of the
state of incorporation.
For
example, consider
a Delaware corporation with headquarters
in New
York and
a
subsidiary with a
facility
in Illinois.
If the
guarantee were executed
in New York,
its validity, assuming
the
corporation had power
to make guarantees, would be
a matter of
New York law.
The USEPA rule would not require certification
from New York.
This
is
a major weakness, since many corporations
have headquarters
in states other
than
the state
in which they
are organized.
Another major problem with the USE?!’ rule would
be
the expense associated with enforcement by states of the
guarantee in the courts of other
states.
The Board
rule requires officials of the parent corporation
to come into Illinois
to execute the guarantee,
to agree that the
guarantee
is governed
by Illinois law, and
to agree
to
submit to
Illinois Court jurisdiction.
This makes
the question one of
Illinois law,
to which the Illinois Attorney General
and
Department of Insurance can certify acting alone.
It also avoids
the problems of enforcement
in
foreign courts.
79-688
—14—
The power of the corporation
to make the guarantee would
still
be subject
to question.
There could
be some limitation on
guarantees either
in the law of the state of incorporation or
in
the articles of incorporation.
The Agency can insist on proof
that the parent has the power
to make
the guarantee on
a case—by—
case basis, just as
it examines documents to assure that the
corporate officials have the power
to act
for the corporation.
In P86—28
the Board proposed
to delete Section
724.247(b) (4), which includes past compliance dates
for obtaining
liability insurance.
Pursuant
to
a request
from USE?!’, on March
5, 1987, the Board reinserted
this language, but indicated that
it would consider deleting
it again
in this Docket.
In the
Proposed Opinion the
Board proposed
to repeal these past
compliance dates,
and
solicited comment.
USEPA indicated that
repeal
of these dates was acceptable
if the Attorney General
certifies that past violations of these requirements are covered
by Illinois rules from the date the rules were
first effective.
USE?!’ agrees that prior
to the effective date of interim
authorization these rules were federal rules,
strictly federally
enforceable.
(PC #3)
The Board has received
no comment from the
Attorney General, but will proceed on the assumption that the
certification will be forthcoming.
The Board would
appreciate
comment during
the post—adoption comment period
if there will
be
problems with this.
This rule specifies dates
for obtaining liability insurance
for various types of facilities between January
15,
1983 and
January 15,
1985.
The Board
first adopted
it
in P82—19
in
October,
1983.
The Board
received authorization, and the rules
became enforceable by the State, on January
31,
1986.
In
retrospect,
the dates
had
no impact at
the State
level
since they
were all passed before
the program was authorized.
Retaining the
dates is actually misleading,
since
it appears
to create
a
retroactive requirement.
Section 724.251
The Board has updated the incorporation by reference of the
USE?!’ forms
in 40 CFR 264.151,
which have been modified
to
reflect
the changes discussed above.
The Agency will revise
its
printed
forms
to reflect these changes.
Section 724.290
USE?!’ amended
the requirements for tank systems which treat
or store hazardous waste
at
51 Fed.
Peg.
25471.
Corrections
appeared at
51 Fed.
Peg.
29430.
The Board has adopted
similar
changes.
These provisions involve
tanks used to
treat or store
hazardous wastes.
Tanks
used
to store petroleum products are
regulated
under Part 732.
79-689
—15—
Section 724.291
Section 724.291(a)
requires that the operator of an existing
tank conduct
an assessment of the tank and determine either
that
the
tank system
is not leaking or, on the
other
hand,
that it
is
unfit
for
use.
The Board has added language
to the federal
text
to make
this clearer.
40 CFP 264.191(b)
requires that the
assessment “determine that the tank system is adequately
designed...”
The Board
has modified this to make it clear
that
the assessment could
reach a negative conclusion also.
This and
the following Sections reference various industry
design
standards.
These will
be incorporated by reference
in
Section 720.111 above.
Since
the full library reference
is
in
Section 720.111,
the Board has shortened the names
of the
documents as used
in the rules.
Section
724.292
This Section specifies requirements
for
the design and
installation of new tank systems.
Section 724.293
40 CFP 264.193(a) (2) contains
a reference
to
tanks
used to
store or treat
“F020,
F021,
...
and F027.”
From the context
it
is clear
that “or”
was intended.
Section 724.293(a)
requires “secondary containment”
for
tank
systems.
This could consist of
a lined berm,
a vault system or
a
double wall
on the tank.
Secondary containment
is required
for
new tank systems and at various
future dates
for existing
systems.
The purpose
is to contain any leaks
from the primary
system.
Of course,
it is essential
to protection of public
health and
the environment that any leaks
to
the secondary
containment be promptly detected and removed,
or else the
secondary containment
would
just be
a second primary containment.
Section 724.293(c)(3),
(c)(4)
and (e)(3)(C) allows the
Agency to approve designs
of secondary containment
systems which
would
not
necessarily
detect
or
allow
removal
of
accumulated
liquids within
24 hours
if the operator makes certain specified
showings.
40 CFR 264.193(c)
allows these
if the operator “can”
make
the demonstrations.
The Board has modified
these
to
require
that the operator actually make the demonstrations, which appears
to
be what
USE?!’
intends.
The
Board has also modified these
provisions
to specify that the demonstrations are
to be made by
way of
a permit application.
If operators have tank systems
which will
not allow prompt removal of liquids, the issue should
be addressed
in the permit process.
If the Agency determines
that another removal time
is justified,
the Agency will specify
the removal time
in the permit.
If there
is
a disagreement with
the Agency’s decision,
it can
be appealed.
79.690
—16—
The Agency and
JC!’P have commented on these provisions.
(PC
*4 and #5).
The Board will therefore address the reasoning
behind these modifications more extensively than
in the Proposed
Opinion.
The USEPA rules are vague
as
to what is intended.
The
24
hour
removal time appears
to be
a “preferred”, rather
than a
“firm”, design requirement, since no special
federal procedural
“variance” mechanism is articulated
in the rules.
Further,
the
showing
required to vary from
the
24 hour
time appears to be
closely allied with the permitting process.
The Board
recognizes that the rule could
be interpreted
as
a
firm design standard, and thus a Board determination by way of
an
adjusted
standard would
be more appropriate.
However, on
balance,
the Board believes that the decision more logically fits
into
the permit review process.
Under this interpretation, the
rule
is
saying that tanks
should preferably be designed
for
a
24
hour liquids removal;
if not,
the applicant should
so specify
in
the permit application, and also make additional
showings.
In
either case,
the Agency will specify the removal
time as
a permit
condition.
If
the applicant does not make
a showing, but rather
claims a
24 hour removal
capability, and then
fails
to do so, the
applicant then has violated
a permit condition and
is subject
to
enforcement.
The
Board notes that
the “can” language could also be
interpreted
as providing
an affirmative defense
in the context of
an enforcement action
to excuse compliance with the
24 hour
detection or removal
time.
This interpretation is rejected
however, since
it would
seem to specifically authorize
a
deliberately false application
if the applicant “can”, but
doesn’t,
make
the
alternative
demonstration.
In summary,
the Board has modified the
text of this rule
so
that
it
is identical
in
substance with the USE?!’
rule, but
so
as
to eliminate vagueness as
to
the procedural context.
JCAP also questions the Board’s substitution of “Board”
or
“Agency”
for “Regional Director”
(sic)
in this rule.
(PC
#5).
Sections
20(a)
and 22.4(a)
of the Act contemplate that the State
should assume responsibility for those portions of the RCBA
program which
USE?!’ intends
to delegate.
USE?!’ would
not accept
rules which specified that
it was
to make decisions which
it
intended
to delegate.
Nor does the Board have statutory
authority to adopt rules which purport
to regulate federal
agencies.
As
is discussed
in the general
response
to
JC!’P comments
below,
the Board’s responsibility is
to discern which State
agencies are to make various decisions consistent with the Act,
and
to
so specify
in the rules.
This often takes the form of
deciding whether
a decision implements
a rule
in the context of
permit issuance
or whether
it
is determining environmental
control
standarás.
79-691
—17—
40
C??
264.193(e)(2)(i)
includes
a
reference
to
“its”
boundary, where the antecedent
is not altogether clear.
Section
724.293(e)(2)(A) replaces this with “the vault system’s”.
40 OF? 264.l93(e)(2)(v)
includes incorrect cross references
to the definition of hazardous waste.
These have been corrected
in Section 724.293(e)(2)(E).
40 OF?
264.193(g)
allows
USE?!’ to grant “variances”
from the
secondary containment requirements
for
tanks.
The operator has
to demonstrate either that “alternative design and operating
practices,”
together with location characteristics, will be at
least as effective as secondary containment,
or that,
in
the
event of
a release which does migrate
to groundwater,
there will
be no substantial hazard
to human health
or
the environment.
The
Board
has utilized
an adjusted standards procedure pursuant
to
Section 28.1 of the Act
to make
these decisions.
The
Board has
also adopted procedures
in 35
Ill.
!‘dm.
Code 106.
These
are
adaptations
taken
from the combined sewer overflow procedures of
Part
306.
They will replace the existing Board procedures
in
Part 106, which were adopted
in P85—22.
The modified procedures
will
allow the Agency to join as
a co—petitioner, and will
require
a rulemaking—type hearing
instead
of the contested
case
type hearing of old Part
106.
Section 724.293(g)
and
(h)
reference these procedures, and
specify the level of justification required
for the adjusted
standards.
The levels of justification are taken verbatim from
the
USE?!’ rules.
As provided
in Section 28.1 of the Act and Part 106,
adjusted
standards are available only where
the substantive rule
of general applicability specifically references
the adjusted
standards procedures.
Operators cannot request adjusted
standards with respect
to any other general
rules.
40 C?? 264.193(h) (1)
requires that the
USE?!’ variance
request be
initiated 24 months prior
to the date secondary
containment
is required
for existing tanks,
or
30 days prior
to
entering into
a contract for
a new tank.
The Board has included
these time limits, but notes that any contracts should be
contingent
on the outcome of the alternative design or operating
practices demonstration, since
30 days would
not be enough time
to
complete
the
adjusted
standards
proceeding.
The Board
has added
Section 724.293(h)(2)(B)
to require that
the applicant include
a portion of the Part B permit application
with the petition
for
an adjusted standard.
Section 724.293(h) (4)
requires that the Agency issue or
modify the
PC?!’ permit
so as
to require the
perniittee
to
construct and operate the tank as provided
in the Board
Order
approving the alternative design or operating practices.
79-692
—18—
Section
724.294
This Section specifies operating requirements, such
as spill
prevention,
for
tank systems.
Section 724.295
This Section requires inspection of tank systems.
Section 724.296
Section 724.296(b)
contains release response requirements
which
relate
to the time limits
for responding
to releases
discussed above
in connection with Section 724.293.
The Agency
has commented on this also.
(PC *4).
As
is discussed above,
the
Board construes the
alternative
time limit provision as
a design
standard which
is to be
addressed
in the permit application
process,
rather than as
a waiver
or affirmative defense
provision.
Accordingly, the Board has modified these provisions
to eliminate
a
similar ambiguity.
Rather than repeat the
alternative language
in this provision,
the Board has referenced
the permit.
Pesponse will
be required within 24 hours
or
as
otherwise required
in the permit.
Section 724.296(d)(l) requires reporting of releases
from
tank systems
to USEPA within
24 hours unless the release has
already been reported pursuant
to 40 OF? 302, which concerns
CEPCLA reporting.
The
Board required
reporting
to the Agency.
Following
40 C?? 264.196(f)
is
a note reciting USEPA’s
enforcement authority under the
PCP!’
Act.
Although
USE?!’ may
retain part of this authority in Illinois following
authorization, it
is not necessary for the Board
to recite
it
in
the
Board
rules.
Section
724.297
This Section requires that the operator remove or
decontaminate
all waste residues and tank system components on
closure.
If this
is not possible, the
tank system
is subject
to
the post—closure care requirements and associated financial
assurance.
Section 724.298
and 724.299
The provisions regarding
ignitable, reactive and
incompatible waste have been modified
to reflect changes
in
terminology.
Section 725.113
Section 725.ll3(b)(6) has been modified
to reference waste
analysis rules
for
interim status tank systems.
79-693
—19—
Section
725.115
Section 725.ll5(b)(4)
has been modified
to reference
inspection requirements
for tank systems.
Section
725. 173
Section 725.173(b)(3) and
(6) have been modified
to require
results of waste analysis
in the operating
record
for facilities
with tank systems.
Section 725.175
40 CFR 265.75 was amended
at
51 Fed.
Peg.
28556.
Section
725.175(h)
and
(i)
have been added
to require generators which
treat, store
or dispose of waste on—site
to report on their
efforts
to reduce volume or
toxicity.
Note that the
Board rule
will require
an annual
report, rather
than
a biennial
report.
As
discussed above,
the Board declined
to adopt the biennial report
requirement
in
P84—9.
Section 725.210
40 CFP 265.110 was amended
at
S1
Fed. Peg.
25471 to
state
that
tanks which must
close as landfills are subject
to the post—
closure care rules.
The USEPA amendment seems
to delete
40 C??
264.2l0(b)(2),
which states the
similar requirement for lagoons
and piles
which must
close
as landfills.
The Board believes this
may be
an error,
and will retain these provisions.
The tank
system rule will
therefore appear
as Section 725.2l0(b)(3).
Section 725.240
Interim status tank systems which must
close
as landfills
have
to provide financial assurance
for post—closure care.
Section 725.247
The Board
has repealed Section 725.247(b)(4).
This
is
similar
to Section 724.247(b) (4), which was discussed above.
40 CFP 265.147(b)(4)
required various types
of interim
status facilties to obtain liability insurance by various dates
between
January 15,
1983 and January 15,
1985.
The Board
incorporated this Section by reference
in P81—22,
in April,
1982.
Illinois received Phase
I
interim authorization on May 17,
1982, which made these dates enforceable
as State
law.
The
Board
actually adopted
the text of this Section
in
P86—28.
At that
time
it proposed
to adopt omitting the past dates.
The Board
inserted
the dates at the request of USEPA during the post—
adoption comment period, but
indicated that
it would proposeto
delete them
in this Docket.
As discussed above, USEPA has
indicated that the Board can delete the dates
if the Attorney
General certifies that.past violations are covered from the dates
tney were rirst eftecti1~e.
79-694
—20—
Since
the Board rules became effective
and enforceable
before any of these dates,
they are the actual dates on which
insurance was required as
a matter of
State
law.
This
is
a
matter
of historical
record which can be alleged
in any
enforcement action
in which the length of non—compliance is
an
issue.
The Board will delete provisions with no prospective
impact
as
a
small
act
of
mercy
to
anyone
who
has
to
read
these
lengthy
rules.
Interim status facilities will
be allowed
to use
a corporate
guarantee for liability
insurance.
This is similar
to Section
724.247, discussed above.
JCAR questions the Board’s use of “shall
not”
instead of
“may not”
in Section 725.247(g)(l)(B).
(PC
#5)
The answer
to
this is the same as for Section 721.106 above.
USE?!’ means that
the guarantee cannot be terminated
until alternative financial
assurance has been approved.
The rule would have
no meaning
if
the guarantor had the option of terminating the guarantee prior
to approval of alternatives.
Furthermore, the entire financial
assurance system would
be meaningless
if parent corporations
could
renege on these promises at the
first sign of trouble.
As
a matter
of
style, the
Board has modified the language
to use
“shall
not”
to state
the mandatory language, reserving
“may”
to
indicate
an election.
JO!’? also questions the use of “shall”
in Section
725.247(g)(2).
(PC
*5)
For
the reasons discussed
in connection
with Section 724.247(g),
this subsection implements
40 CFR
265.247(g) (2), but does not attempt to track the language.
Section 725. 290
et seq.
The
interim status rules
for tank systems are very similar
to Section 724.290 et seq., discussed
above.
Section
725.293
40 CFR 265.193(a) (2) contains
a reference
to tanks
used to
store or
treat “?020, F02l,
...
and F027.”
From the context
it
is clear
that “or” was
intended.
Interim status facilities are allowed
to modify their
units
to provide secondary containment without filing
a Part B permit
application.
Otherwise, these
rules are
the
same as
Section
724.293, discussed
above.
Placing the decision regarding interim status facilities
into the permit review process poses
a problem since
there
is no
permit application or review procedure associated with the
interim status standards.
One possibility would
be
to create
a
waiver procedure
for the Agency to follow under Part 725.
The
Board
has done this
in other Sections.
Since prompt detection
and removal
of leaks
from secondary containment are essential
to
79-695
—21—
protection
of
public
health
and
the
environment,
public
notice
and comment comparable to
that in the
POP!’ permit issuance
process
is essential before longer
times
are approved.
Furthermore, with the
interim status rules there
is
a possibility
that operators will be engaging
in new construction
to provide
secondary containment to existing tanks.
If the Agency takes
a
positive
step to approve deviation
from the
24 hour removal
requirement,
it
is likely that this will control the eventual
Part B application.
The Board
has decided
to
use the mechanism proposed
in
Section 724.293.
Interim status facilities will have to build
secondary containment
to allow
24 hour removal,
or else file a
Part B application.
This allows
utilization of existing
procedures with adequate public participation.
In summary,
the Board has modified
the text of this rule
so
that
it
is identical
in
substance with the
USE?!’ rule, but
so
as
to eliminate vagueness as
to the procedural context.
JCAB also questions the Board’s substitution of “Board”
or
“Agency”
for “Regional Administrator”
in this rule.
(PC *5).
Sections
20(a)
and
22.4(a)
of the Act contemplate that the State
should assume responsibility for those portions of the
POP!’
program which USEPA intends to delegate.
USEPA would
not accept
rules which specified that
it was
to make decisions which
it
intended to delegate.
Nor does the Board have statutory
authority to adopt
rules which purport to regulate federal
agencies.
As
is discussed
in the general
response
to JCAP comments
below,
the Board’s responsibility is
to discern which State
agencies are to make various decisions consistent with the Act,
and
to
so specify
in the rules.
This often
takes
the form of
deciding whether
a decision implements
a rule
in
the context of
permit issuance,
or whether
it
is determining environmental
control standards.
USE?!’ and
the Agency commented
on
the lack of certain
special
notice procedures from 40 OFB 265.193(h)
in Section
725.293(h).
(PC
*3 and #4) The Board
has proposed
to utilize
the
Part 106 procedures,
as
is discussed
above.
The Board has
corrected the reference
in Section 106.415(b)
to the ROBA notice
procedures of Section 102.124.
USE?!’ also commented
on the lack of the 90—day decision
period of Section
265.193(h)
in the Board’s procedures.
The
Board
is reluctant
to
adopt
an unnecessary decision period which
could
be construed
to allow alternative standards by default.
(PC ~3)
The
JO!’? questions include four which were asked
in one form
or another with respect
to most of the Parts
involved
in P86—19
through
46.
The numbering below refers
to the specific
questions
79.696
—22—
asked with respect
to Part 720 as proposed
in P86—46.
In
addition several
sets of questions ask about specific Sections.
These
are answered
in detail with respect
to those Sections
in
the main portion of the Opinion above.
However, most of these
involve
a question as
to why the
Board
is
not adopting
USE?!’
rules verbatim.
The Board
will give
a general response
to
this
question as question five below.
JO!’? first
questions how a rule can be adopted more than
180
days after
USE?!’ has adopted
it.
JOAP asks whether Section
5 of
the APA applies after 180 days.
JC!’? apparently interprets Section 22.4(a)
as saying
that
identical
in substance rulemaking is exempt from Title VII of the
Act and
the
!‘P!’ for 180 days
and thereafter subject
to those
provisions.
However, the statute does not say whether
identical
in substance rules are or are not exempt after
180 days.
Section
22.4(a) of the Act
is
a specific statutory provision
dealing with adoption of identical
in
substance rules, while
Title VII of the Act and the
!‘PA are general provisions
for
rulemaking.
One should
not construe
the statute
so
as
to make
the general provisions override the specific provisions, absent
an express provision.
Because Section 22.4(a)
is silent as to what happens
if
it
does not meet the 180—day goal,
the
Board must look
to the intent
of the statute.
The General Assembly intended quick adoption so
as to maintain a
ROB!’ program equivalent
to the
federal program
to meet the policy objectives of Section
20(a)(8).
Full
Board
rulemaking, pursuant
to Title VII of the Act
and the A?!’ would,
of course, cause
further delay and also backup subsequent
rulemakings
so that the 180 days might never
be met, at least
until
the
USE?!’ slowed
in the frequency of
ECRA
rulemakings.
This would certainly result
in loss of program approval, contrary
to the policy of Section
20.
The Board
therefore concludes that
Section 22.4(a) does not require full rulemaking
to adopt
identical
in
substance rules
after
the 180 day period
has
elapsed.
The Board, of course,
is obligated
to make
a good
faith
attempt
to meet the 180 day time—frame.
(See also P87—3,4;
Resolution of June 25,
1987.)
The second
JC!’R question asks
is why the Board published
a
notice of proposed rulemaking
in accordance with Section 5.01 of
the
A?!’.
The proposal
was noticed
in accordance with procedural
rules adopted
in R84—lO,
and was not
in accordance with Section
5.01
of the
A?!’.
The
Board
notes that the public comment format
was made similar
to the A?!’ first notice format in order
to avoid
confusion.
The third question concerns the statement of statewide
policy objectives
in the notices
in
the Register.
Section
22.4(a)
of the Act gives
the Board
no alternative but
to adopt
the rules
in question.
The policies behind the decision
to adopt
79.697
—23—
the rules
are those of the General Assembly
and
not the Board.
The policy objectives were set forth
in
Section 20
of the Act,
which was referenced
in the Notice,
as required by the
A?!’.
The State Mandates Act is not applicable
to these
BCRA
rules
anyway, because
they have
no direct
impact on local government
so
long as
it
is exercising
normal governmental activities.
If
a
local government becomes involved
in the business of generation,
transportation or management of hazardous waste, then federal and
State statutes mandate that these rules apply.
The fourth question concerns whether
the Board
“received”
any public comment, and whether
it ever considers changing
a rule
in response
to comment.
As
is detailed
above, the Board has made
numerous
changes
in
response
to
comments.
The
fifth question suggests that
JC!’B construes “identical
in
substance”
to
mean
that
the
Board
is
to
adopt
USE?!’
rules
“verbatim.”
The Board does not construe
the “identical
in
substance” mandate of
Section 22.4(a)
to mean this.
In adopting
“identical
in substance”
rules,
the Board
is
seeking
to create
in
Illinois
a program which comes as close
as possible
to the
substance of the program which
USE?!’ would administer.
For
example,
the Illinois and
USE?!’ programs should require
a given
person
to
manage
a
given
waste
in
the
same
manner,
although
the
person
might
not
have
to
complete
identical
forms
to
be
mailed
to
the
same
address
under
both
programs.
Although the Board attempts
to keep the
ROB!’ rules
as nearly
verbatim
as possible with the
rules as administered
in
USE?!’,
it
is
not
possible
to
maintain
an
identical
in
substance
program
simply by adopting large blocks of USE?!’ rules verbatim.
Indeed,
the result of such blind
adoption of verbatim rules
would be
a
program which differed substantially from the USEPA program,
and
which would
be subject
to attack under
Illinois laws.
The
following
is
a compilation of issues which have arisen
in
identical
in substance rulemaking.
The first question
is often whether
it
is necessary to
adopt
a
USE?!’ rule as
a State rule.
Some rules, such as site—specific
delistings, are simply not applicable
in Illinois.
Other
rules
govern actions
to be taken by
USE?!’, such as standards
for
program approval.
It would
not be appropriate for Illinois
to
adopt rules
which purport
to regulate a federal
agency.
Other
rules describe
the contents of the State program
in
a manner
such
that
the USE?!’ rule would
not be appropriate as
a portion of the
State program
itself.
These may describe the type of rule
the
State needs to adopt,
or include
a list
of
options.
Other
rules
describe program contents that are not appropriate
to address by
Board
rules, such as the adequacy of funding
for the Agency’s
inspection
staff.
Another question that arises
is whether
the Board
should
adopt
the text of a
federal
rule,
or
whether
to
merely
incorporate
the rule by reference.
79.698
—24—
Many issues center on whether
Board, Agency or
USE?!’ action
is required.
JEEP!’
is often
imprecise as
to whether
it
intends
to retain authority
to make certain decisions,
or whether
it
intends to devolve
the authority to
the State.
In
Illinois there
is
usually a question as
to which
State agency is
to receive this
authority.
Section 5(b)
of the Act authorizes
the Board
to
“determine, define
and implement environmental control
standards,”
while Sections 4(g) and
39 of the Act allow the
Agency
to
administer permit systems established under
the Act and
Board
rules.
Since
USE?!’ has both of these functions,
it does
not differentiate between them
in its rules.
Questions of Board
or
Agency authority are often decided based on whether
the action
is one of “determining, defining or
implementing environmental
control
standards,”
or of applying Board
rules as part of permit
issuance.
(Commonwealth Edison et
al. v.
IPOB,
127
Ill.
App.
3d
446;
468 NE
2d 1339
(Third District
1984)
Another question
involves the existence of more stringent,
consistent State programs.
Sometimes
USE?!’ will add
or amend
rules
for which
there
is an existing State program which
is
consistent
and more stringent.
An example
is the federal and
State liquids bans
in Section 724.414 and Part 729.
The Board
modified the
USE?!’ rule
to reflect
the existing, more stringent
State
rule.
(Commonwealth Edison
et
al.
v.
I?OB,
op. cit.)
Sometimes questions arise
as to whether
USE?!’ provisions
would conflict with provisions of the Act or other
State
laws,
including
the Administrative Procedure Act.
An example
is
USEP!’
rules which allow
USE?!’ to
issue PCBA permits at its discretion
in authorized States.
This cannot be allowed
in
Illinois, since
USE?!’
is not authorized
to determine whether
a facility has met
the local government approval requirements
under
Section 39.2 of
the Act.
(Commonwealth Edison et al.
v.
I?CB,
op. cit.)
Other
examples result from USEPA rules which appear
to provide that
USE?!’ will do something if certain conditions are met,
or not do
it at its discretion without the possibility of meaningful
review.
Because such provisions are contrary
to the
A?!’,
the
Board usually restates the rule
to remove the apparent
discretion.
USE?!’ and the Agency are given the opportunity
to
comment
if they believe that such discretion
is necessary to
the
program,
or
to advise the Board of
additional
factors which
influence
the decision.
Other
questions
arise
from
attempting
to
adapt
USEPA’s
free—
form
style
to
the
Administrative
Code
Unit’s
codification
rules.
The Board attempts to comply with these rules wherever
possible.
The worst case
is the “hanging paragraph”,
in which
USEP!’ returns
to
a previous level
of subdivision, something which
is
an absolute no—no
in Illinois.
This will generally
necessitate
a complete rewriting
of the rule
to accomplish the
same substance within the codification system.
Some USE?!’ rules
are written from the wrong narrative
stance.
USE?!’ is an agency which makes rules, applies them
in
79-699
—25—
unauthorized states and approves state authorization requests.
Some of
its rules don’t make sense
as Illinois rules whether one
substitutes
“Board”
or “Agency”
for “Administrator.”
The Board
often
rewrites these
rules
to state
the substance as applied
in
Illinois from the Board’s regulatory perspective.
A final type of question arises from what appears to be
deficiencies
in
USE?!’ rules such that they either
say something
other
than what was probably intended, or
say nothing
at all.
The Board attempts to rewrite these
so that they say what USEPA
probably intended.
The Board
affords an opportunity for comment
as
to whether the rule is indeed
identical to the substance of
the USE?!’ rule.
In summary,
the Board attempts
to adopt
rules which are
as
nearly verbatim as possible with respect
to the
POP!’ program as
administered
by
USE?!’
in states without authorization.
However,
it
is not possible
to accomplish
this by blindly adopting large
blocks of rules verbatim.
This Opinion supports the Board’s Final Order
of this same
day.
The Board will withhold filing of the adopted
rules
for
10
days
to allow for final
review by the agencies involved
in the
authorization
process.
Although
this
time
period
is
short,
there
is
need
to
adopt
these
rules
as
quickly
as
possible
pursuant
to
Section 22.4 of the Act.
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
hat the above Opinion was adopted on
the
~
day of
____________,
1987,
by a vote
of
~,°
Illino:
Control
Board
79.700
