ILLINOIS POLLUTION CONTROL BOARD
    February
    6,
    1986
    IN THE MATTER OF:
    )
    )
    AMERICAN NICKELOID DELISTING
    )
    R 86-5
    PETITION
    )
    )
    ORDER OF THE BOARD
    (by J.
    Anderson):
    On December 19,
    1985,
    American Nickeloid Company (Nickeloid)
    filed
    a petition for rulemaking with the Board.
    The petition
    seeks to have certain wastes which Nickeloid produces
    “delisted”
    from the hazardous waste listings of 35
    Ill. Adm. Code
    721.
    The
    petition was filed pursuant to Section ZZ.4(~.)of the
    Environmental Protection Act (Act), and
    35 Ill.
    Adm. Code
    102.120,
    720.120(a) and 720.122(a).
    The wastes in question are wastewater treatment sludges from
    electroplating operations and from lime treatment of spent pickle
    liquor from steel finishing operations.
    Such sludges are listed
    as hazardous wastes from non-specific and specific sources under
    generic codes
    F006 and
    1062
    in
    35
    Ill. Adm.
    Code 721.131 and
    721.132 and 40 CFR 261.31 and 261.32.
    They were listed as
    generic hazardous wastes upon
    a finding by USEPA that such
    sludges usually contain the following hazardous constituents:
    cadmium, chromium
    (VI),
    lead, nickel and complexed cyanide.
    (35
    Ill. Adm. Code 721. Appendix G,
    40 CFR 261, Appendix VII).
    On December
    16,
    1981,
    the United States Environmental
    Protection Agency (USEPA) granted
    Nickeloid a
    “temporary
    exclusion” from the listing pursuant to 40 CFR 260.22 (46 Fed.
    Reg.
    61277).
    USEPA determined
    that, although the waste was
    a
    wastewater treatment sludge from electroplating operations and
    lime treatment of spent pickle liquor from steel finishing
    operations,
    it did not contain the hazardous constituents which
    caused the wastes to be listed.
    Section 3001(f)(l)
    of the Hazardous and Solid Waste
    Amendments of 1984
    (HSWA) mandated USEPA to review all temporary
    exclusions by November
    8,
    1986,
    and provided that all temporary
    exclusions will expire on that date.
    Nickeloid may need Board
    action on the temporary exclusion up to that date.
    In the event
    the exclusion is continued under HSWA,
    the Board may be able to
    take further action pursuant to Section 22.4(a).
    Beginning
    in 1981,
    the Board adopted regulations
    establishing the Illinois RCRA hazardous waste program.
    The
    regulations were adopted pursuant to Section
    22.4(a)
    of the Act,
    and are “identical in substance” with USEPA’s RCRA rules.
    The
    RCRA rules were last amended
    in R85-22 on December
    20,
    1985.
    The
    history of these rulemakings
    is summarized in the Board’s Opinion

    -2-
    adopted January
    9,
    1986.
    Illinois received phase
    I interim
    authorization on May 17,
    1982,
    and final authorization on January
    31,
    1986.
    The Board has not adopted the December 16,
    1981 temporary
    exclusion granted Nickeloid.
    This exclusion does not appear in
    40 CFR 260—266, the federal regulations which the Board has
    followed, pursuant to Section 22.4(a) of the Act,
    to fashion the
    Illinois program.
    Furthermore, Nickeloid has, until now,
    never
    petitioned the Board pursuant 35
    Ill. Adm. Code 720.122 to delist
    this waste
    at the State level.
    In the absence of such a
    petition,
    the Board had no way of determining whether it was
    necessary to adopt the specific exclusion as
    a part of the
    Illinois program.
    Section 22.4(a) of the Act requires the Board to adopt
    regulations which are “identical in substance to federal
    regulations.”
    Section 20(a)(5) et
    seq. establishes the
    legislative intent that Illinois get and keep RCRA
    authorization.
    Section 4(1) names IEPA as the lead agency in the
    authorization process.
    The Board notes
    that the USEPA,
    in its January
    31,
    1986
    final authorization action, addressed the delisting issues
    in
    part by stating:
    Response.
    Due to the Sections 3006(g) and 3001(f)
    of RCRA,
    as amended by the Hazardous and Solid
    Waste Amendments
    of 1984,
    (HSWA) and amendments
    made to 40 CFR 260.22 on July
    15,
    1985,
    (50 FR
    28702),
    Illinois will not have independent
    authority to delist hazardous waste.
    Section
    3001(f) of RCRA as amended requires U.S. EPA to
    examine factors
    in addition to those
    that caused
    the waste to
    be listed when delisting
    a waste.
    Furthermore, U.S.
    EPA is required to provide the
    public with notice and comment prior
    to making
    a
    final determination on any petition.
    These
    requirements were codified in 40 CFR 260.20 and
    260.22 on July 15,
    1985.
    The Illinois regulations,
    35 IAC 720.120 and 720.122, do not appear to be
    equivalent
    to these new requirements.
    Furthermore,
    the Attorney General’s Statement
    is based on an
    analysis of the State’s equivalency to the federal
    regulations promulgated
    by July 29,
    1984.
    Since
    the new Federal rules were promulgated subsequent
    to that date,
    U.S.
    EPA does not believe that the
    Attorney General has Certified to this
    equivalence.
    According to Section 3006(g)
    of RCRA,
    as amended, until
    a State receives authorization
    for any HSWA provision,
    U.S. EPA is responsible for
    administering that portion of the program.
    Since
    U.S.
    EPA does not believe that
    35 IAC 720.120 and
    720.122 are equivalent to new 40 CFR 260.20 and

    —3-
    720.22, and these are HSWA requirements,
    the State
    is not authorized to delist wastes
    in lieu of U.S.
    EPA.
    Consequently,
    a company which wants
    its waste
    delisted must comply with both 40 CFR 260.20 and
    260.22 and
    35 JAC 720.120 and 720.122.
    The proposal raises several fundamental questions on which
    the Board needs to be better informed before deciding whether or
    not to publish
    a proposal for public comment.
    The Board requests
    that the USEPA respond to the following questions by March
    15,
    1986.
    This request does not preclude other participants from
    responding during this time period.
    In particular,
    the Board
    welcomes any clarifications from IEPA.
    1)
    Are the December 16,
    1981 temporary exclusions
    “federal
    regulations” under federal law and thus subject to
    delisting under Section 22.4(a) of the Act?
    2)
    During the interim authorization period, did the Board
    listings
    in
    35
    Ill. Adm.
    Code 721 define the scope of
    the RCRA hazardous waste program in Illinois?
    3)
    Did USEPA authorize Illinois to delist wastes pursuant
    to interim authorization?
    4)
    Will delisting authority change with future phases of
    authorization, particularly HSWA related?
    Finally,
    the petition as filed does not include proof of
    service on the USEPA,
    as required to the Board’s RCRA Procedural
    Rules adopted
    in R84-10 on December 20,
    1984 (35 Ill. Adm.
    Code
    102.123).
    The Petitioner shall promptly provide such proof of
    service.
    IT
    IS SO ORDERED.
    Bill Forcade dissented.
    I,
    Dorothy
    M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, heyeby certify that the a~pveOrder was adopted on
    the
    _________________
    day of
    __________________,
    1986 by
    a vote
    of
    /
    Dorothy
    M.
    a’unn, Clerk
    Illinois Pollution Control Board

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