ILLINOIS POLLUTION CONTROL BOARD
October 23,
1986
IN THE MATTER OF:
)
RCRA UPDATE,
USEPA REGULATIONS
)
R86-l9
(1—31—86 THROUGH 3—31—86
FINAL ORDER, ADOPTED RULE.
FINAL OPINION OF THE BOARD
(by 3.
Anderson):
By a separate Order, pursuant to Section 22.4(a)
of the
Environmental Protection Act
(Act), the Board
is amending
the
RCRA regulations.
On May 22,
1986,
the Board opened this docket for
the
purpose of
updating the RCRA rules
to agree with recent USEPA
amendments.
On July 11,
1986,
the
Board adopted
a proposed
Opinion and Order
providing for publication of the text of
proposed
rules and allowing public comment.
Section 22.4(a) of the Act
(Ill.
Rev.
Stat.
1985,
ch.
111
1/2, par
1022.4(a))
governs adoption of regulations establishing
the RCRA program
in Illinois.
Section 22.4(a) provides
for quick
adoption of regulations which are “identical
in substance”
to
federal regulations.
Neither Title VII of the Act nor Section 5
of the Administrative Procedure Act applies to
rules adopted
under Section 22.4(a).
Because this rulemaking
is not subject to
Section 5
of the Administrative Procedure Act,
it
is not subject
to
review
by the Joint Committee on Administrative Rules
(JCAR).
The
federal
RCRA
regulations
are
found
at
40
CFR
260
through
270,
and
280.
This
rulemaking
updates
Illinois’
RCRA
rules
to correspond with
federal
amendments adopted
from February
1 through March
31,
1986.
The Federal Registers utilized
are as
follows:
February 13,
1986;
51
Fed. Beg.
5327
—
5331
February 25,
1986;
51 Fed.
Beg.
6537
—
6542
March
24,
1986;
51 Fed.
Beg. 10145
—
10178
On September
18,
1986,
the Board
received codification
comments ~fromthe Administrative Code Unit.
The Board appreciates
the assistance of Morton Dorothy, of the
Board’s Scientific/Technical
staff,
in
the preparation of the
drafts
in this proceeding,
and
of Kathleen Crowley,
administrative assistant,
in the coordination and
oversight
process.
73-467
—2—
PUBLIC COMMENT
The proposal appeared
at 10
Ill.
Reg. 13500,
August 15,
1986.
The Board received
the
following public comment:
PC#1
USEPA, August 21,
1986
PC#2
Chemical Waste
Management,
Inc.,
September 29,
1986
HISTORY OF RCRA 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
RCRA and UIC Permit Programs
703
RCRA
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
Wastes
and
Management
Facilities
729
Landfills:
Prohibited
Wastes
730
UIC Operating Requirements
731
Underground
Storage Tanks
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:
R81—22
45
PCB
317,
February
4,
1982,
6
Ill.
Beg.
4828,
April 23,
1982.
R82—18
51 PCB
31, January 13,
1983,
7 Ill. Beg.
2518,
March
4, 1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47 Fed.
Beg.
21043).
The UIC rules were adopted
as follows:
R8l—32
47 PCB
93,
May 13,
1982;
October 15, 1982,
6 Ill.
Beg.
12479.
The UIC rules were amended
in R82—18, which
is referenced
above.
The UIC rules were also amended
in R83—39:
73-468
—3—
R83—39
55 PCB 319, December 15, 1983;
7 Ill. Beg.
17338,
December 20,
1983.
Illinois received UIC authorization February
1,
1984.
The
Board has recently updated the UIC rules:
P85—23
June 19,
1986;
10 Ill. Beg.
13274, August
8,
1986.
R86—27
Opened July
11, 1986.
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. Reg.
13999,
October
28,
1983.
R83—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 R82—19 and R83—24.
(Commonwealth Edison et
al.
v.
IPCB,
127 Ill.
App.
3d 446;
468 NE
2d 1339
(Third Dist.
1984).)
The Board updated
the RCPA rules
to correspond with USEPA
amendments
in several dockets:
P84—9
June 13, 1985;
9 Ill.
Beg. 11964,
effective July
24,
1985.
R85—22
December
20, 1985
and January
9,
1986;
10 Ill. Reg.
968, effective January
2,
1986.
R86—l
July 11,
1986;
10 Ill. Beg.
13998, August
22,
1986.
R86—19
Proposed July 11,
1986;
10 Ill. Reg.
13500, August
15,
1986.
R86—28
Opened July 11,
1986.
Illinois received
final
authorization
for
the
RCRA
program
effective January
31, 1986.
The
Board
added
to
the
federal
listings
of
hazardous
waste
by listing dioxins pursuant
to Section 22.4(d)
of the Act:
R84—34
November 21, 1984,
61 PCB
247;
8 Ill. Reg.
24562,
effective December 11,
1984.
This
was
effectively
repealed
by
P85—22,
which
included
adoption
of
USEPA’s
dioxin
listings.
73-469
—4—
The Board
has adopted
procedures to be followed
in cases
before
it
involving the RCRA rules:
R84—l0
December 20,
1984 and January 10, 1985,
62 PCB 87,
349;
9 Ill.
Beg.
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 R85-
22, which is listed above.
The
Board
has also adopted
requirements limiting and
restricting the landfilling of liquid hazardous waste
and
hazardous wastes containing
halogenated
compounds:
P81—25
October 25,
1984,
60 PCB 381;
8
Ill.
Peg.
24124,
December
4,
1984;
P83—28
February 26,
1986;
10 Ill.
Beg.
4875, effective
March
7, 1986.
The Board
has opened
two new dockets dealing with
restrictions on landfilling liquid hazardous waste.
P86—9
concerns implementation of Section 39(h)
of the Act, while
R86—ll
concerns the relationship of
the liquid hazardous waste ban to
the USEPA liguid hazardous waste
bans.
(Orders
of February 26,
1986,
and June
11, 1986.)
DETAILED DISCUSSION
The USEPA amendments involved
in this update
are summarized
as
follows:
51 Fed.
Reg. 5330
Listing
of wastes produced from the
manufacture of ethylene dibromide.
51
Fed. Reg.
6541
Listing
of solvent wastes
from use of
1,1,2—trichloroethane, benzene,
2—
ethoxyethanol
and nitropropane.
51
Fed. Reg. 10174
Regulation of generators between 100
and
1000
kg per month
Section 703.124
This Section
is drawn
from 40 CFP 270.1, which was amended
at
51
Fed.
Beg.
10174.
Paragraph
(a)
has been amended
to remove
the reference
to
the
90 day accumulation period.
Instead, the
time periods of Section 722.134 are referenced generally,
since
they will
no longer be 90 days
in
all cases.
Section 703.150
This Section
is drawn from 40 CFR 270.10(e), which was
amended at
51 Fed.
Peg. 10174.
It was also recently amended
in
73-470
—5—
R86-l.
Paragraph
(d)
has been added.
This will
require small
quantity generators above 100 kg per month which dispose of
hazardous waste on—site
to apply for permits by March 24, 1987.
Section 720.110
This Section
is drawn from 40 CFR 260.1, which was amended
at
51 Fed.
Reg. 10174.
“Small quantity generator”
has been
defined
as
a person who generates less than
1000 kg
in
a calendar
month.
Note that this includes persons who generate less than
100
kg
per
month.
Section 721.101
This Section
is drawn from 40 CFR 261.1, which was amended
at
51 Fed.
Peg. 10174.
Paragraph (a)(1)
has been amended
to
reference “conditionally exempt” small quantity generators, which
is defined
in Section 721.105.
A reference to Part 726 has also
been added,
and the terminology referencing
recycled waste
has
been updated.
Section 721.105
This Section
is drawn from 40 CFR 261.5,
which was amended
at
51 Fed.
Beg.
10174.
It was also recently amended
in P86—i.
This Section defines “conditionally exempt”
small quantity
generators.
Paragraph
(g) specifies the conditions
for exemption
of
a small quantity generator under
100
kg per month.
Section 721.131
This Section
is drawn from 40 CFR 261.31,
which was amended
at
51
Fed.
Peg.
6541.
It was also recently amended
in R86—1.
The
amendments add
to
the solvent listings F002 and
F005.
l,l,2—trichloroethane has been added
for F002,
and benzene,
2—
ethoxyethanol and 2—nitropropane have been added
to
F005.
Section 721.132
This Section
is drawn from 40 CFR 261.32,
which was amended
at
51 Fed.
Peg.
5330.
It was also recently amended
in R86—l.
The amendments add generic wastes
1117,
Kl18
and
1136.
These
are
wastes
from
the
production
of
ethylene
dibromide
by
bromination of ethene.
Section
721.133
This Section
is drawn from 40 CFR 261.33, which was amended
at
51
Fed.
Peg.
6541
arid
10174.
It was also recently amended
in
P86—i.
73-471
—6—
The
amendments derived from 51 Fed. Beg.
6541 identify 2—
nitropropane as toxic
as well as
flammable,
and add U359,
2-
ethoxyethanol, to
the list of toxic wastes.
The
amendments derived from 51 Fed.
Beg.
10174 change the
introductory language
to Section 721.133(f)
to
reference the
revised
small quantity generator exclusion rule of Section
721.105(a)
and
(g).
Section 721.Appendix
C
This Section
is drawn
from 40 CFR 261, Appendix III, which
was amended
at
51
Fed.
Reg.
5330
and 6541.
It was also recently
amended
in P86—1.
The amendments specify analytical
techniques
for
ethylene
dibromide,
2—ethoxyethanol
and
2—nitropropane.
The
Board
has
updated
the
incorporation
by
reference
of
this
table.
Section
72l.Appendix
G
This Section
is drawn
from 40 CFR 261, Appendix VII, which
was amended
at
51 Fed. Peg.
5330
and 6541.
It was also recently
amended
in P86—i.
The amendments derived from 51 Fed.
Beg.
5330 list ethylene
dibromide
as the constituent
which caused
1117,
1118
and K136
to
be
listed.
The
amendments
at
51
Fed.
Beg.
6541
identify
1,1,2—
trichloroethane
as
a constituent which caused F002
to be listed,
and 2—ethoxyethanol, benzene and 2—nitropropane as constituents
which caused F005
to be listed.
Section 721. Appendix H
This Section
is drawn from 40 CFP 261, Appendix VIII,
which
was amended at
51 Fed.
Beg.
6541.
It was also recently amended
in P86—1.
The amendments add 2—ethoxyethanol
and 2—nitropropane
to the list of hazardous constituents.
Section 722.120
This Section
is drawn from 40 CFR 262.20,
which was amended
at
51
Fed.
Peg.
10174.
This Section creates an exemption from
the manifest requirements for
small quantity generators above 100
kg per month
which
have with
a reclaimer
a contract which
specifies the type and frequency of shipments, which must be made
on the recycler’s vehicles.
The generator
is required
to
maintain
a
copy
of
the
reclamation
agreement
for
at
least
three
years
after
its
expiration.
This
is
similar
to
the
“Safety—
Kleen”
exemption
from
the
Part
809
manifest
requirement.(Safety—
Kleen v.
IEPA
PCB
80—12;
39
PCB
38,
July
10,
1980;
Supreme
Court
Rule
23 Order,
2d District, September
18,
1981.)
73-472
—7—
Section 722.134
This Section
is drawn
from 40 CFR 262.34, which was amended
at
51
Fed.
Beg. 10174.
Paragraphs
(d),
(e)
and
(f)
add
accumulation times applicable
to small quantity generators over
100
kg per month.
The
small quantity generator
is allowed
to accumulate
hazardous waste
for up to 180 days, provided the total never
exceeds 6000
kg.
The generator has to comply with the usual
storage,
dating
and labeling requirements
for the accumulated
waste, except that the
small quantity generator must follow
certain specified emergency procedures,
instead of having
to
prepare
a plan pursuant
to Part 725.
The small quantity
generator has
to name
an emergency coordinator,
train employees
and take certain actions
in
the event of
a spill
or
fire.
Paragraph
(e)
allows the small quantity generator
to
accumulate waste
for
up to 270 days
if
the generator has to
transport the waste more than 200 miles
for off—site
management.
The same quantity limits and requirements apply to
such
a generator.
Paragraph
(f), as proposed provided that the small quantity
generator which exceeds the accumulation amounts or
times
is
subject
to
the RCRA hazardous waste management permit
requirements.
However,
the Agency was authorized
to extend
the
time limitations
for
up to
30 days at its discretion,
“due
to
uriforseen,
temporary and uncontrollable circumstances.”
Chemical Waste Management objected
to the extension
provision on the basis that it was
a variance provision which
could only be acted
on by the Board.
(PC#2).
The
Board
agrees
with
Chemical
Waste
Management
that
this
provision
as
well
as
a
similar
provision
in paragraph
(b)
must be
changed
a)
to comport with
the
bifurcated
Illinois
system,
b)
to
remove the discretionary authority (i.e. unappealable)
language,
and
c)
because such determinations have the major effect of
placing
the generator
in or out of the Board permit system.
Therefore,
the language
in both paragraphs
(b)
and
(f)
has
been
changed
to utilize the provisional
variance/variance routes,
with the restrictions that no variance can exceed 30 days and
that
the
arbitrary
or
unreasonable
hardship
showing
is
confined
only
to that which is due
to
a combination of “unforeseen,
temporary
and
uncontrollable
circumstances”.
Section
722.144
This
new
Section
is
drawn
from
40
CFR
262.44,
which
was
amended at
51
Fed.
Peg.
10174.
The
small quantity generator
above
100
kg per month
is exempt
from recordkeeping
and reporting
requirements except as specifically provided.
The
small quantity
73-473
—8—
generator above 100 kg
per
month
must
keep
records
concerning
accumulation times and quantities
in the preceding Section.
Such
generators must also keep copies of manifests and test results as
specified
in Section 722.140,
and
retain records for longer
periods if instructed
to do
so.
Section 723.120
This Section
is drawn from 40 CFR 263.20, which was amended
at
51
Fed.
Peg. 10174.
This Section complements Section
722.120(e).
It exempts
a recycler
from the transporter
requirements when the recycler
is carrying waste
from
a small
quantity generator above 100 kg per month pursuant
to
a
reclamation
agreement.
The
recycler
has
to carry
a
shipping
paper with the manifest information on
it, and
retain records for
at
least
three
years.
This
Final
Opinion
supports
the
Board’s
Order
amending
the
BCRA rules of this same day.
IT
IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify tj~tthe above Opinion was adopted on
the ~~-‘~day
of
~
,
1986,
by a vote of
~
Dorothy M. d~nn,Clerk
Illinois Pollution Control Board
73-474