ILLINOIS POLLUTION CONTROL BOARD
February
6,
1986
IN THE MATTER OF:
)
)
R86—6
WOODSTOCK DIE CAST,
INC.
)
ORDER OF THE BOARD
(by J. Anderson):
On December
27,
1985, Woodstock Die Cast, Inc.
(Woodstock)
filed a petition for emergency rulemaking with the Board.
The
petition seeks to have certain wastes which Woodstock produces
“delisted”
from the hazardous waste listings of
35
III.
Adm. Code
721.
The petition was filed pursuant to Section 22.4(a) and
27(c)
of the Environmental Protection Act
(Act), and
35 Ill. Adm.
Code 102.120,
720.120(a) and 720.122(a).
On January 16, 1986,
Woodstock filed an additional statement of reasons.
The wastes
in question are wastewater treatment sludges from
electroplating operations.
Such sludges are listed as hazardous
wastes from non-specific sources under generic code F006 in 35
Ill.
Adm.
Code 721.131 and
40 CFR 261.31.
They were listed as
generic hazardous wastes upon a finding by USEPA that such
sludges usually contain the following hazardous constituents:
cadmium, chromium
(VI),
nickel and complexed cyanide.
(35 Ill.
Adm.
Code 721. Appendix C, 40 CFR 261, Appendix VII).
On March
18,
1981,
the United States Environmental
Protection Agency
(USEPA) granted Woodstock
a “temporary
exclusion”
from the listing pursuant to 40 CFR 260.22
(46 Fed.
Reg.
17198).
USEPA determined that, although the waste was
a
wastewater treatment
sludge from electroplating operations,
it
did not contain the hazardous constituents which caused the waste
to be listed.
Section 3001(f)(1) 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.
Woodstock alleges that it
needs 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).
In
1980,
IEPA determined that the waste was not hazardous
based on law which existed at that time
(Exh.
D to Petition).
The validity of this determination is uncertain because of the
great changes to the definition of hazardous waste
in Illinois
since that time.
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
-2-
RCRA rules
were last amended
in R85-22 on December
20,
1985.
The
history of these rulemakings is summarized
in the Board’s Opinion
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 March
18, 1981 temporary
exclusion granted Woodstock.
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, Woodstock 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
720.122(c) authorizes the Agency to determine that
a
waste from a particular source is not subject to the Board’s RCRA
regulations.
The proposal alleges that IEPA has made such
a
determination (paragraph
8).
However, Woodstock has attached no
letter from IEPA containing the determination.
As noted above,
the 1980 letter from IEPA predates Section
720.122(c), and
predates the Board’s definition of hazardous waste
(Part
721)
which the Agency must apply in making its determination pursuant
to Section 720.122(c).
To the extent
IEPA may have made such a
determination since 1980,
such action would seem to contradict
USEPA’s temporary exclusion pursuant to Section 260.22, which
requires an initial determination that the waste meets
the
regulatory definition of hazardous waste.
If the sludge did not
meet the F006 listing in the first
place, there was no need to
delist
it by regulatory action.
Woodstock has asked that the Board adopt
a delisting
regulation by way of emergency rulemaking pursuant to Section
27(c), alleging that the conflict between federal and state
law
is
a “threat to the public
interest, safety or welfare.”
However, this allegation
is inconsistent with Woodstock’s failure
to file
a regulatory petition until nearly four years after
Illinois’ receipt of interim authorization.
The Board therefore
will not proceed by way of emergency rulemaking.
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:
-3—
Response.
Due to the Sections 3006(g) and 3001(E)
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
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 IAC 720.120 and 720.122.
The proposal raises several fundamental questions on which
the Board needs
to be better informed before deciding whether to
publish a proposal for public comment.
The Board requests that
the IEPA and USEPA respond to the following questions by March
15,
1986.
IEPA is specifically asked to respond to question
number
5.
This request does not preclude other participants from
responding during this time period.
1)
Are the March
18,
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
I1!l.
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—
4)
Will delisting authority change with future phases of
authorization, particularly HSWA related?
5)
Has
IEPA in fact determined since interim authorization,
pursuant to Section 72O.122(c),
that the waste does not
meet the Part 721 definition of hazardous waste?
If
IEPA has done
so,
is this action inconsistent with
USEPA’s findings in temporarily delisting the waste?
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 R84-1O 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, hereby certify that the abo e Order was adopted on
the
_________________
day of
__________________,
1986 by
a vote
of
_______________.
/&~—
Dorothy M. gunn, Clerk
Illinois Pollution Control Board