ILLINOIS POLLUTION CONTROL BOARD
August
9,
1990
IN THE MATTER OF:
R89—13(A)
IDENR SPECIAL WASTE
)
(Rulemaking)
CATEGORIZATION
ADOPTED RULE.
FINAL ORDER.
OPINION OF THE BOARD
(by J.
Anderson):
This rulemaking creates 35 Ill.
Adin.
Code 808,
Special Waste
Categorizations,
and amends 35 Ill.
Adin.
Code 809,
Special Waste
Hauling.
It narrowly modifies the effect of
35
Ill.
Adin.
Code
807,
Solid Waste.
The Board adopted Part 807 as “Chapter
VII”
in
R72—5,
8 PCB 575
&
695, July 19 and 31,
1973.
The Board adopted
Part 809 as “Chapter IX”
in R76—lO,
33 PCB 131, March 15,
1979.
Part 807
is the subject of a proposal
in R88—7, Landfill
Regulations,
which is presently pending in Second Notice.
The
rules in this Docket do not assume that the Board will adopt
certain features of the proposal in R88—7, but the present rules
in this docket are flexible enough to accommodate the R88—7
features should they be adopted.
Due to the length of the rules and this Opinion, the Board
incorporated the text of the amendments into a separate,
accompanying Order of this same date.
STATUTORY
FR~.NEWORK
This rulemaking
implements Sections 22.01 and 22.9 of the
Act, which were adopted at different times.
Section 22.01 of the Act,
as amended, requires the Board to
review and consider the repeal of the manifesting requirement for
non-hazardous special waste,
35 Ill. Adm. Code 809.Subpart
E,
by
December
1,
1989.
However, this Section also requires the Board
to adopt an annual report requirement for facilities receiving
non—hazardous special wastes.
Section 22.9(a)
of the Act requires the Department of Energy
and Natural Resources
(DENR)
to complete a study by July
1,
1985
on the benefits and feasibility of establishing a system for
classifying and regulating special wastes according to their
degree of hazard.
Section
22.9(b) requires the Board to adopt,
following completion of the DENR study,
but no later than
December
1,
1990,
regulations that establish standards and
criteria for classifying special wastes according to their degree
of hazard or by an alternative method.
The substantive provisions of Section 22.9 include further
requirements
and
guidelines on special waste classification.
Section 22.9(c)
requires the I3oard to adopt regUlations
11 4—3~O
2
establishing standards and criteria by which the Agency may
determine that a waste or class of waste is not a special waste.
Section 22.9(d)
contains a temporary statutory standard by which
the Agency makes this decision pending adoption of Board
regulations.
Section 22.9(e)
provides that,
if the Agency fails
to act on a determination within
60 days, the requestor may seek
review before the Board as
if the Agency had denied a permit.
Finally, Section 22.9(f)
provides that the determination that a
waste
is not a special waste does not apply to hazardous waste.
This precludes the declassification of special wastes that are
RCRA hazardous wastes
(i.e., wastes that are hazardous under
state regulations identical
in substance to federal regulations
adopted pursuant to the Resources Conservation and Recovery Act
of 1976
(RCRA),
42 U.S.C.
6901 et seq., pursuant to Section
22.4(a))
or waste deemed hazardous wastes under independent State
law and regulations
(pursuant to Section 22.4(b) and
(c)).
PROCEDURAL HISTORY AND RECORD OF THE PROCEEDING
This proceeding grows out of two prior proceedings and
includes the records of those proceedings.
The Board closed
docket R84—43, Non-Hazardous Special Waste Manifests, and
incorporated its record into docket R85-27,
Special Waste
Categorization Study,
on December 17,
1987.
The Board opened
this proceeding when it closed docket R85—27 on August
10,
1989
and incorporated its consolidated record into this docket.
The
present record includes approximately four years of exhibits,
hearings and the draft regulatory proposal by STS from R85-27,
including the record from Docket R84-43.
The Board has since gained the further benefit of additional
hearings,
exhibits,
and comments under the present docket number.
The Board proposed the present rules for First Notice on August
10,
1989.
The First Notices appeared at 13 Ill. Reg.
13468,
August 25,
1989
(Part
808),
and 13
Ill.
Reg.
13699, September
1,
1989
(Part 809).
The Board proposed an Interim Request for
Public Comment on October
18,
1989 relating to changes in the
text of the proposed rules.
On November
15,
1989, the Board
proposed the rules for Second Notice,
and the Joint Committee on
Administrative Rules
(JCAR) received the complete Second Notice
package on June
1,
1990.
JCAR submitted
its Certificates
of No
Objection on July 26,
1990.
The history of developments regarding special wastes
reflects the interconnection among diverse,
independent concerns.
These concerns include the perceived need for relief from
regulatory requirements
(e.g., manifesting)
for a potentially
significant proportion
of the universe of “special waste”
(as
defined by Section 3.45 of the Act),
the desire to classify
special wastes to assure handling appropriate to their
characteristics,
the obligation to maintain a State system that
is consistent with federal
law,
including RCRA,
~
Section
114—400
3
20(a) (7)—Ca) (9),
and the pending efforts to update all solid
waste rules in R84—l7/R88—7.
Sections 22.01 and 22.9 of the Act reflect these diverse
concerns.
Section 22.01, added by Public Act 83-1461 and
effective September 17,
1984, was the culmination of
compromises
that altered the original proposal,
H.B.
3042.
H.B.
3042 would
have immediately required the Board to drop all manifest
requirements for non—hazardous special wastes.
As enacted,
Section 22.01 only requires the Board to “review and consider”
such action by January
1,
1986.
Section 22.9,
traces its roots to
a different enactment,
Public Act 83—1268, effective January
1,
1985,
and relates to
regulation of special wastes based on their degree of hazard.
This Section requires DENR to complete a study of the “benefits
and feasibility”
of establishing a degree of hazard
classification system for special waste regulation by July
1,
1985.
Section 22.9(a).
It requires the Board to promulgate
regulations for classifying and declassifying waste by September
1,
1988.
Sections 22.9(b)
&
(c).
The General Assembly
subsequently changed this deadline to December 1,
1989,
in Public
Act 85—1327,
effective August 31,
1988,
and to December
1,
1990,
in Public Act 86—958,
effective December
5,
1989.
In response to the mandate of Section 22.01, the Board
opened R84—43 on December
20,
1984,
for review and consideration
of the manifest requirement.
The Board held two inquiry hearings
in March 1985.
From the beginning of the R84-43 proceeding,
the Board noted
the DENR mandate imposed by Section
22.9.
The Board observed in
its Order of December 20,
1984 that the DENR study due July
1,
1985 would become the subject of other Board hearings and that
this study “will undoubtedly provide a useful data base for
consideration in this docket and will be made
a part of the
record in this proceeding.”
December 20, 1984 Order
at
2.
The Board received the Section 22.9 DENR report on November
21,
1985.1
By its Order of the same date,
the Board established
Docket R85-27.
One month
later,
on December 20,
1985,
the Board,
having considered the testimony and exhibits submitted
in R84-
43, entered an order finding that “it would be imprudent to
repeal the manifest requirement at this time and that further
deliberation should proceed under
a consolidated R84—43/R85-27
Docket.”
Order of December 20,
1985 at
1.
It also proposed
a
rule for First Notice that would have required annual reports
1
K.
Reddy,
Special Waste Cateqorizatiqr~~d
(DENR
HWRiC
RR 005 October
1985).
11 4--401
4
from all facilities accepting non—hazardous special wastes,
effective July
1,
1987,
without attempting to define the affected
universe of facilities.
Ironically, on the same day,
Public Act 84-1108 became
effective.
That law directed DENR to prepare another report for
the completion of a study on the degree of hazard of industrial
wastes.
a’he Board received this second DENR report on January
22,
1987.
Upon receipt of this report, the Board scheduled and
held two hearings in May 1987.
After considering the testimony
and comments produced in the consolidated R84-43/R85—27 docket,
the Board dismissed its First Notice proposal on December 17,
1987,
and further formally dismissed and closed Docket R84-43
On April
7,
1988, the Board entered an Interim Order
directing the Board’s Scientific and Technical Section
(STS)
to
prepare
a regulatory proposal.
The Board contemplated
in the
Order that the final installment of the DENR “degree of hazard”
studies, which the Board expected to be delivered “shortly,”
would aid the STS efforts.
To serve as an independent proponent,
the Interim Order established an arrangement consistent with RES
86-1, whereby the STS became a separate entity,
subjected to
customary ex parte restrictions as a proponent.
This arrangement
has since prevailed throughout this proceeding.
~he Board received DENR’s third installment on October 27,
1988.
By its cover letter, the DENR’s Hazardous Waste Research
and Information Center
(HWRIC)
indicated that it would likely
submit one additional report,
“The Characterization of Non-RCRA
Special Waste”
by William
W.
Frerichs, within two weeks.
HWRIC
published the Frerichs report in January 1989, but did
not submit it to the Board for filing in Docket R85-27. The Board
otherwise obtained a copy of that report on April 28,
1989.
The
cover letter accompanying the report indicated that the Frerichs
report was
a product of DENR’s continuing research mission and
that DENR
did.
not intend to file it as an exhibit in the R85-27
proceeding.
Working on the basis of selected preliminary drafts,
STS
staff prepared
a rough draft regulatory proposal and “supporting
document.”
STS prepared
a second draft of its proposal on June
28,
1989 and filed
a third draft on July
24,
1989.
STS filed an
2
M. Plewa
& R. Minear, Assigning a Degree of Hazard Ranking
to Illinois Waste Streams
(DENR HWRIC RR 005 November 1986).
J.
Plewa,
R.
Minear,
D.
Ades—Mclnerney
&
E.
Wagner,
Refining
the Degree
of
Hazard Ranking
Methodology
for
Illinois
Industrial Waste Streams
(DENR HWRIC RR—029 September 1988).
114—402
5
accompanying “Supporting Document”
on July 26,
1989.
Noting the
imminent statutory deadline and the effort already underway to
develop this Board proposal,
STS filed
a Statement Of The
Scientific and Technical Section Regarding Submission of
Documents on July 31,
1989.
STS indicated that additional
efforts to develop
a formal proposal appeared unnecessary
in R85—
27, since that Docket was soon to close.
The STS draft proposal filed July 24,
1989 became the
cornerstone of the present proceeding.
It is based on the STS
review of the DENR/HWRIC studies, and has become the regulatory
proposal
in this docket.
The following discussions of Board
actions in this proceeding focus on the Board’s reception of this
draft proposal.
FIRST NOTICE PROPOSAL AND CREATION OF DOCKETS A AND B
The August 10,
1989 First Notice proposal did not address
all the potential ramifications of
a waste classification system,
particularly those thorny issues related to creation of a “high
hazard” non—RCRA special waste category
(i.e., those special
wastes assigned a score of
3 pursuant to Section 808.245).
As
the foregoing history discloses,
the legislature originally
anticipated that the Board would have the benefit of
38 months to
deliberate and refine a proposal following receipt of the DENR
study
(July
1,
1985 to September
1,
1988); the Board had far less
time than that to develop
its First Notice proposal.
Therefore,
it was appropriate that the Board set aside a docket to consider
possible further refinements of the degree of hazard ranking
system,
as well as to consider possible utilization of that
system to impose heightened controls on waste treatment,
storage
and disposal of “high hazard” non-RCRA special wastes.
The First
Notice proposal had,
as its limited primary purpose, utilization
of the DENR’s hazard ranking system for determining which wastes
may be declassified entirely and which of the remainder may have
reduced manifest requirements.
It was possible that further
refinements would alter the hazard ranking system and related
requirements, to increase the potential universe of declassified
wastes,
as well as to specify waste treatment,
storage, and
disposal modalities tailored to specific classes of wastes.
To accommodate these purposes, the Board established two
separate dockets in this proceeding.
The August 10,
1989 First
Notice proposal, which culminated
in today’s adopted rule,
with
its limited focus and timetable,
was the subject of Docket
A.
Consideration of refinements to the hazard ranking system and the
possible use of that system to prescribe requirements specific to
special waste classes,
including those non—RCRA wastes assignea
the highest hazard ranking,
is the subject of Docket
B.
6
First Notice Statement of Reasons
As the foregoing history indicates,
the First Notice
proposal followed almost
5 years of efforts by the DENR,
the
Board, and STS.
Unfortunately,
those efforts only began to
coalesce after long effort, and the Board found itself
confronting an extremely short time frame in which to attempt to
meet the statutory deadline for rulemaking.
At that time the
deadline for Board action was December
1,
1989.
The First Notice proposal was based on the first three DENR
studies as well as the STS draft proposal.
There was
insufficient time to allow STS to prepare and submit a formal
final proposal,
as originally contemplated by the Board
in its
Interim Order of April
7,
1989.
The principal differences between the STS draft and the
First Notice proposal Board proposal were the deletion of certain
features of the STS draft.
The Board rewrote very little of the
draft STS proposal,
except as necessary to elimination of those
features.
First Notice Departures from the STS—Proposed Draft Rule
1.
Deletion of Computer Program Certification “Loop”
(Subpart
I,
Sections 808.500 through 808.511 of STS draft)
The Board First Notice proposal did not retain this feature,
although it specifically authorized the use of computers
in
making “degree of hazard” determinations
(Section 808.301),
applications
(Section 808.430(a),
Board Note),
and requests for
additional data
(Section 808.430(b), Board Note).
The Board
draft also retained the essential elements of the “data base”
provisions,
from STS draft Section 808.511, at Section 808.302,
but dropped the references to computer on-line data bases and
computer operators.
The STS draft provisions for Agency certification of
computer programs were deleted as unnecessary and potentially
beyond the authority of the Board and the Agency.
The Board
believed it unnecessary for the purposes of the Act to require
use of a computer or to otherwise specifically purport to
regulate such use.
This was because an application for
reclassification
of
a special waste does not need a computer to
achieve correct results.
Second,
the Board felt that Agency
certification of computer programs arguably amounts to
a form of
licensing not authorized by the Act.
Finally, there
is no
suggestion that the Agency seeks such a role or possesses the
resources to perform that role.
1
14—404
7
2.
Deletion of
a Separate Declassification “Loop”
(Subpart D,
Sections 808.280 through 808.282
of STS draft)
The First Notice proposal introduced
a “seamless” process
through which the base determination as to classification
(under
Section 808.245) may directly result in declassification.
The
STS draft would have required generators to file a second
application for classification if their waste qualified as lowest
degree of hazard special waste.
The STS draft stated that
“because the requirements for management of a Type A special
waste are virtually the same as for waste which
is not a special
waste,
the Subpart leaves the election of declassification to the
generator.”
The First Notice proposal simply eliminated these
overlapping categories of wastes and redundant application
processes.
3.
Deletion
of
a Hazardous Waste Category Outside RCRA
(Sections 808.300, 808.302 and 808.307(b) (4))
Although the “Board Note” following Section 808.302 of the
STS draft would have suggested that
a “hazardous waste” means a
RCRA waste as defined in
35 Ill. Adm.
Code 721,
it is clear from
the operation of Section 808.307(b) (4)
that some wastes not
presently classified as hazardous under RCRA could fall into the
Type D category under the STS proposal.
This could cause
controversy and confusion and is at odds with the evident intent
of Sections 22.01 and 22.9:
to provide regulatory relief from
overly—onerous requirements for those wastestreams that do not
warrant the full panoply of controls currently imposed on special
wastes
(e.g.,
6-part manifests).
However, the Board draft
retains the DENR/STS scoring system intact,
allowing for future
rules adopted under Section 22.4(b)
and
(c),
rather than under
Sections 22.01 and 22.9.
This scoring system could impose
a
“hazardous” classification on those special waste streams
assigned a score of
3.
4.
Elimination of Mandatory Application for Wastestreain
Identification Number
(Section 808.101(b)
of STS draft)
~uic~,
Agency Classification of Type D Wastes on Request (Section
808.301 of STS draft)
The First Notice proposal
(Section 808.241) and STS draft
(Section 808.303)
shared the common feature that a special waste
is a high—order special waste subject to the 6-part manifest and
other more stringent requirements unless proven otherwise.
However, the First Notice proposal eliminated the requirement
that all special waste generators must apply
for
a wastestream
identification number.
It also eliminated the somewhat related
provision
(Section 808.301) that would have allowed the Agency to
classify any waste as
a hazardous waste at the request of the
generator.
Under the First Notice proposal,
the generator of
Class B special waste could choose to subject
its wastes to the
114—4 fl
8
Class A manifest requirement.
If
it so chose,
its wastes were
“deemed” Class A special wastes for all purposes of Part 808
(Section 808.122(b)).
The primary rationale for departing from the STS draft in
this regard was to avoid placing the Agency
in the potential role
of
a “rubber stamp” for generators seeking the higher-order
classification for their wastes.
There appeared no reason to
needlessly involve the Agency in what is essentially a business
decision, thereby creating a new administrative burden.
5.
Elimination of the “Informational Application”
(Sections 808.100(c)
and 808.121, Board Note)
The STS draft would have entitled “any person” to apply to
the Agency for a written determination as to the classification
of “any waste,” presumably including RCRA hazardous wastes and
ordinary household refuse.
Such a requirement would potentially
impose a burden on the Agency unrelated to the purposes of this
rulemaking.
It could potentially make the Agency an unwilling
player in disputes between USEPA and generators seeking delisting
of hazardous wastes,
as well as
in litigation involving attempts
by third parties to have an unlisted waste added to the USEPA’s
hazardous waste lists.
6.
Deletion of Agency Rulemaking Prescribing Additional
Information Required
in Classification Application
(Section
808.402(i)
of the STS draft)
The First Notice draft would have enabled the Agency to
request additional information as needed on a case—by-case basis
(as would the STS draft),
but
it did not allow the Agency to
prescribe rules specifying such additional requirements.
Such
rulemaking appears the proper function of the Board.
Further,
the Act does not authorize such rulemaking by the Agency.
7.
Deletion of Provisions Allowing Description of the Waste
Stream
in question to be Modified and Different From The
Chemical and Physical Analysis for that Wastestream
(Section 808.413(b)
of the STS draft)
The First Notice draft would have avoided the implications
inherent in allowing modification of a wastestream description
notwithstanding the physical and chemical analysis submitted for
that wastestream.
In its place,
the First Notice draft modified
the language of STS Section 808.413(b)
and the accompanying
“Board Note.”
A related change was the addition of a “Board
Note” following 808.413(a).
Under the First Notice draft, each
variation of a wastestream need not have precisely matched the
chemical and physical analysis provided for that wastestream,
so
long as the description of the wastestream was expressed as a
range of properties associated with the particular generating
114—406
9
process.
This outcome appeared to meet the need for flexibility,
which the STS draft attempted to address, without inviting or
requiring the applicant to “modify” the description every time.
For example,
a generator of waste paint solvent could file a
single analysis and description for its wastestream to
accommodate changes
in pigment color and concentration associated
with different customers or finished product lines.
8.
Deletion of the “Preponderance” Standard for Agency
Decisions
(Section 808.503(c)
of the STS draft)
The enunciation of a “preponderance” standard appeared
inappropriate for Agency determinations that are not made on a
record review like Board decisions.
The “preponderance” test
relates to the relative weight that the evidence in a contested
case record must bear to upset an agency judgment on review.
Where there
is no such contested case record, the “preponderance”
test
(or the “manifest weight” test that applies
to Board
decisions)
is inapplicable.
The appropriate “test” for Board
review of a non—record Agency decision
is simply whether the
Agency decision was correct.
Note that the “record” before the
Agency in a permit matter is not a “record” in the same sense as
is used in review of decisions
in contested case proceedings.
9.
~jJ~mination of Opportunity for Applicants to Introduce New
Information
in
a Request for Reconsideration
(Section
808.541(a)
of the STS draft)
While the First Notice draft retained the “request for
(Agency)
reconsideration” mechanism,
it would not have allowed
such requests to include new information.
The concern was that
allowing new information on reconsideration could have created
a
never-ending application process,
improperly relieving applicants
of their responsibility to provide a complete application to the
Agency at the outset of the process.
Such an approach would also
encourage submission of “minimalist” applications by applicants
who are reluctant to divulge all relevant information
in their
possession.
10.
Omission of Provisions Governing Applications
for
Wastestream Identification Numbers
(Subpart
B,
Sections
808.200 through 808.220
of the STS draft)
The First Notice draft would have allowed for inclusion of
STS proposal provisions governing wastestream I.D.
numbers
(by
leaving
a “gap”
in the draft regulations at 808.200
et seq.),
but
it did not expressly include these provisions.
First, reliance
on such wastestream I.D. numbers appeared predicated
on adoption
of R88—7’s proposed revisions to the solid waste regulations.
The Board has not adopted the R88—7 rules as of the final action
on this rulemaking.
Second,
the Board may choose to relocate the
waste stream
I.D.
number application process provisions elsewhere
11 4—40 7
10
than in Part 808,
since such applications would not necessarily
involve the waste classification process.
Il.
Elimination of Distinctions Between “Waste” and
“Wastestream” and Associated Requirements
(Section 808.110
and following Board Note of the STS draft)
The STS proposal would have required a wastestream I.D.
number only for “wastestreams”
(i.e., wastes routinely or
periodically produced by a given process);
individual
(non—
repetitive)
waste
loads are tracked pursuant to an “unmanifested
waste report”
from the waste receiving facility
(per Section
808.411, page
52
of the STS draft, recommended for adoption in
R88—7).
The First Notice draft retained verbatim the
“unmanifested waste report” feature at Section 809.502 but
eliminated the distinction between “wastes” and “wastestreams”
as
outside the scope of this rulemaking,
as potentially confusing,
and as inconsistent with the Act.
Conclusion re Proposed First Notice and the STS—Proposed Draft
The Board emphasizes that the rationale set forth in the
draft STS for specific recommendations filed July 26,
1989 with
the Board
in R85-27 were endorsed by neither STS
(since such
recommendations were
in draft form only)
nor the Board.
However,
for purposes of eliciting comment during the First Notice period,
and to the extent the Board retained specific provisions
in the
First Notice draft, The Board offered the STS rationale as
explanation and justification.
RESPONSES TO INTERIM REQUEST FOR PUBLIC COMMENT
After adoption of the proposal for First Notice,
the Board
scheduled and held two public hearings, the first in Springfield
on September
1,
1989, and the second in Chicago on September
14.
The Board cancelled a third hearing, scheduled for September
15,
after no one appeared to present testimony or examine witnesses.
The Department of Energy and Natural Resources
(DENR),
including
its Hazardous Waste Resource and Information Center
(HWRIC); the
Illinois Environmental Protection Agency
(Agency); Mr. John
Andrae,
of the DuPage County Health Department; the Board’s
Hearing Officer
(in his capacity as a principal draftsman of the
Board’s proposal); and Dr. Harish Rao,
head of the Board’s
Scientific/Technical
Section
(STS), which prepared the STS draft
regulatory proposal upon which the Board based many features of
the First Notice proposal,
each presented testimony.
The Board
received prefiled comments and questions from the National
Renderer’s Association and Waste Management
of
Illinois.
By its Interim Request for Public Comment dated October 18,
1989, the Board sought public comment regarding changes to the
proposed rules.
The Board effected those changes
in response to
114—408
11
comments received during this First Notice period.
The Board
thereby gave interested persons an opportunity to comment on
those changes prior to adopting a Second Notice Opinion and
Order.
The draft Opinion and Order accompanying the October 18,
1989 Interim Request contained a number of modifications based on
the hearing testimony and public comments received as of that
date.
Generally,
the Board re-crafted its draft for the
following reasons:
1.
to clarify that the Board intended the toxicity ranking
methodology developed by DENR/HWRIC to supplement the
present Agency system of evaluation,
not to replace it;
2.
to include other considerations derived from the Agency’s
present policy paper;
3.
to utilize the DENR/HWRIC degree of hazard categories
for
which
a developed scientific rationale existed
(i.e.,
toxicity), but to rely on the existing Agency evaluation
system rather than the DENR/HWRIC rankings based on a
“legal” rationale
(e.g.,
pH);
4.
to provide for a four-part manifest system plus quarterly or
annual reports;
5.
to remove amendatory language not directly related to the
DENR/HWRIC classification system,
including leaving intact
the Board’s existing hazardous
(infectious)
hospital waste
regulations; and
6.
to provide for a re—evaluation within two years for those
wastes that the Agency earlier determined were not special
wastes.
The Hazard Ranking System
Testimony provided by DENR and HWRIC focused on the three
scientific studies and proposals for creating
a system to rank
special wastes according to their relative degree of hazard to
human health and the environment.
Witnesses for DENR and HWRIC
were generally supportive of the Board’s First Notice proposal.
See,
e.g.,
R.
19—21
(testimony of Dr. David Miller).
These
witnesses also defended the HWRIC studies’ choice of methodology,
the “break points”
for hazard ranking chosen by HWRIC,
and the
toxicological data and reference compound selected by HWRIC and
proposed by the Board
(i.e., copper sulfate).
~
~
R.
21-
27
(testimony of
Dr. Michael Plewa).
The witnesses for IWRIC
and
DENR stated that the computerized system was then presently
“up
and running” and available for use on all wastes,
so long as the
applicant provided adequate information on the waste components
114—409
12
to the Agency or if such information was already part of the data
base.
R.
42—44.
The DENR and HWRIC witnesses felt that the system was
conservative enough to avoid error
for declassification purposes.
Further,
DENR/HWRIC stated that because the system was
conservative,
it is possible that more specific information on
constituents and toxicities would lower the toxicity level
classification
of a waste given a high—hazard ranking.
P.C.
#
4.
Therefore,
the conservatism of the system would cause uncertainty
and error to fall in favor of higher toxicity rankings.
The DENR and HWRIC witnesses also made clear that the degree
of hazard system should be viewed as a potential degree of hazard
system.
It should act as only one element within the overall
evaluation by which the Agency would make a determination, and
that the ranking could adjust up or down,
depending on the
appropriate modes of treatment or disposal of special wastes.
E.g.,
R.
57—59.
The DENR and HWRIC witnesses also acknowledged that they did
not base a number of their rankings on the scientific rationale
they developed.
Rather,
the witnesses utilized a “legal”
rationale:
they borrowed a regulatory standard applicable to
some potential characteristic of those wastes from an unrelated
federal
or state regulatory program, such as the federal RCRA
standard for pH, and established
a “break point” without
refinement or incremental adjustment based on the degree of
hazard system.
R.
61,
68
& 71—73.
The DENR and HWRIC witnesses also testified that the
system’s database and application program is potentially useful
as a planning device.
Members of the regulated community could
calculate the effects of process substitutions and system changes
on the waste stream’s degree of hazard.
R.
40—52.
The witnesses
noted that the system could be applied manually.
In any event, DENR/HWRIC argued for a universal state data
base system
(presumably maintained by the Agency), thus letting
all interested persons know the ground rules.
R.
47
& 52
& P.C.
#4.
They also noted that experts should screen new data in order
to maintain a standardized system and thus avoid delisting
evaluations by those lacking expertise or access to literature.
P.C.
#4.
Dr. David Miller, Assistant Director and Research Program
Manager of HWRIC, estimated that
a computer and software
appropriate for the purpose would cost the Agency about $3000.00.
R.
31.
Several questions arose from the Agency at hearing
concerning the HWRIC ranking methodology and proposal.
Mr. James
11 4
-~
1~
1 0
13
O’Brien, Manager of the Agency’s Office of Chemical Safety
(OCS),
questioned the exclusive use of equivalent oral doses, when the
inhalation or dermal exposure route might be more appropriate.
DENR/HWRIC responded that the toxicity weighting table on Page 11
in the Plewa 1988 report takes this into account.
Responding to
Mr. O’Brien’s concerns about lack of consideration of sub—acute
or systemic chronic toxicity,
DENR/HWRIC stated that relatively
little data exists in this regard.
Further DENR/HWRIC felt that
such values would have little effect anyway because the system is
conservative.
Regarding Mr. O’Brien’s comments on the
appropriateness
of test methods, DENR/HWRIC responded that the
questioned parameters, such as pH for solid samples,
are
difficult to measure; the generator could either leave these
parameters blank or analyze a water slurry.
DENR/HWRIC asserted
that the Agency needs to consider the use of these values
in its
final determination of waste stream status.
R.
112—119
& Ex.
4.
Others present at hearing also asked questions.
Mr. Andrae
of DuPage County took particular note of the fact that toxicity
appears to increase with volume using the DENR/HWRIC toxic hazard
methodology,
see Section 808.App.
B(b),
and asserted that this
might render the methodology suspect as
a means of classifying or
declassifying certain wastestreains.
R.
391—395.
DENR/HWRIC
responded that the system focused on landfills,
rather than
effluents going into water and,
as such,
seeks to avoid a large
volume of toxins where total mass may present a threat.
P.C.
#
4.
In a somewhat related vein,
IERG also noted some problems
posed by a volume—dependent measure of toxicity,
including
examples of how the system could yield absurd results.
P.C.
#
11, pp.
6—8.
Mr. Andrae also stated the county’s concern
regarding the exemption from the manifesting requirements for
septic pumpings and grease trap pumpings.
R.
398-401.
Other Questions and Comments at Hearing
The National Renderers Association argued in its pre-filed
questions that licensed renderers,
who are currently exempted
from the manifest system pursuant to 35 Ill. Adm.
Code 809.331,
should be similarly exempted from the “Unmanifested Waste Report”
requirements
of proposed Section 809.502.
R.
256-257.
The Agency generally indicated that the proposed system was
overly complicated,
time consuming and unnecessary.
R.
220 &
237.
The Agency proposed
in its stead,
P.
220,
that the Board
adopt a system of classification derived from the Agency’s
present guidance document.
Ex.
7.
Several commenters endorsed
this view.
P.C.
#
10,
11
& 14.
The Agency also acknowledged
that
it rarely,
and then only informally, utilizes the OCS to
assist in the toxicity evaluation components of
its guidance
document.
R.
102,
147,
163
& 169—170.
One questioner,
and two commenters representing the Illinois
ii i,—_4 11
14
Steel Group and the Illinois Environmental Regulatory Group
(IERG), P.C. # 10,
11
&
14, suggested that DENR had failed to
provide
a copy of the computer program developed by DENR/HWRIC on
request.
They contended that this refusal had denied them access
to data in order to meaningfully testify on or evaluate that
system.
Accordingly,
they urged the Board to take no action
based on the DENR system.
DENR/HWRIC responded that they had
offered those with specifics on their waste stream “to come to
our offices” to run the degree of hazard,
P.C.
#4,
p.
5.
DENR/HWRIC did not release the system because they didn’t want
others modifying the program, especially during its developmental
phase.
Download of the program onto a diskette was possible as
of the date of the Interim Requester.
DENR and HWRIC want to
assure that there is only one state system,
so they want to
assure that the presently—existing system is secure.
R.
215-216
& P.C.
#
4.
Public Comments
The
Board received post—hearing comments from the
Metropolitan Water Reclamation District of Greater Chicago
(P.C.
#3);
DENR
(P.C.
# 4); the National Slag Association
(P.C.
#
5);
International Mill Service Inc.
(P.C.
#
6); the St. Louis Slag
Products Company
(P.C.
#
7); the Steel Manufacturer’s Association
(P.C.
#
8); BFI Waste Systems
(P.C.
#
9); the Illinois Steel
Group
(P.C.
#
10
& 14);
the IERG
(P.C.
#
11); the Edward
C. Levy
Co.,
Inc.
(P.C.
#
12); the U.S.
Department of Interior,
Bureau of
Mines
(P.C.
#
13);
Dr. David
J.
Schaeffer,
Department of
Veterinary Biosciences,
University
of Illinois
(P.C.
#
15); and
the Agency
(P.C.
#
16)
.~
Comments 4 and 16 were responses
to two sets of questions
propounded in Orders issued by the Hearing Officer.
(“Further
Questions for DENR/HWRIC Witnesses,” September 12,
1989,
and
“Additional Questions for IEPA and DENR/HWRIC Witnesses,”
September
13,
1989).
The Agency and DENR advised the Hearing
Officer that they were coordinating to provide at least a partial
response to the fourth question raised by the Hearing Officer in
his September
12,
1989 order.
That was a request that DENR run
its degree of hazard
(DOH)
analysis on the requests that the
Agency has already received and handled under its interim
guidance policies over the past
2½ years.
Such a “cross check”
could serve to either confirm or deny claims relating to whether
the system is practicable.
It could provide a comparison of
results from use of the DENR system alone with results from use
of the Agency’s policy guidance alone.
Comments of a technical nature relating to the form of the
rules
for purposes
of
publication
in the Illinois Register
were
also received from Mimi
Griffiths,
Administrative Code Division,
Office of the Secretary of State
(P.C.
#2).
1
14--412
15
Mr. Frank
E. Dalton, General Superintendent of the
Metropolitan Water Reclamation District of Greater Chicago,
P.C.
#3, suggested that the Board add a Section 808.247 that would
exempt municipal wastewater treatment plant sludge from
classification as a special waste.
He also urged that the Board
revise Section 809.255 to clarify that washings from a special
waste hauling vehicle may not be discharged to a POTW,
except in
compliance with all applicable local limits on discharges to that
POTW.
BFI Waste Systems, P.C.
#
9,
pp.
3
&
4,
and Waste
Management of
Illinoi,s
(WMI), P.C.
#
1,
p.
13, made somewhat
similar suggestions.
In addition to faulting various aspects of the DENR/HWRIC
proposal and the Board’s draft rules,
the Agency proposed that
all special non-RCRA waste be manifested by using a four-part
manifest, augmented by an annual reporting requirement,
R.
92-97
& 218-219;
P.C.
#
16,
in lieu of the currently-required six-part
manifest which the Agency characterized as imposing an
unreasonable
“paperwork burden” on both the Agency and the
regulated community without commensurate benefit in terms of
increased Agency oversight.
Id.
Other cominenters agreed with
the Agency on this point.
P.C.
#
8,
9
&
11.
The Agency typed
this burden on its resources as growing rapidly and quantified
it
as consisting
of approximately 350,000 pieces of paper annually.
P.
92—93.
The Agency also suggested that the Board’s rules
should set forth minimum requirements for the annual reports with
which it suggests augmenting the four-part manifest requirement.
WNI
submitted the greatest number of pre-hearing comments
and questions relating to the proposal.
P.C.
#
1.
Many of these
questions and comments related to typographical errors and
omissions,
all of which the Board duly noted.
Substantively,
WMI
suggested that waste treaters and
disposers should have a role in the classification process as of
right,
in light of their obvious stake
in classification
determinations,
as well as their knowledge of actual conditions.
P.C.
#
1,
pp.
1-2.
WHI
recommended that the Agency provide
notice of pending classification requests to such receiving
sites,
and that the rules entitle such sites to participate
in
Agency classification proceedings.
~
e.g.,
P.
259—260
& P.C.
#1,
p.
5.
WMI
also noted that numerous sections of the proposal
(e.g.,
proposed section 808.l2l(c)(1))
reference concepts embodied in
sections or Parts not
yet
in existence,
most notably Part 811.
See P.
264—266,
326,
329—330
& 345—348.
As noted
by the Hearing
Officer
at hearing,
R.
264—266, the Board drafted these sections,
as well as those of proposed Part 809 that would establish
substantive requirements for waste haulers,
including haulers of
wastes other than special wastes
(e.g., Sections 809.221 through
ii4—413
16
809.227), with the expectation that the Board would earlier adopt
the proposed landfill rules in P88-7.
Such prior adoption has
not occurred.
Finally,
WMI
noted several problems with the Infectious
Hospital Waste rules as recodified from Subpart
I of Part 809 to
proposed Section 808.601,
R.
322-329, with the addition of
several new substantive requirements
in Part 809 for waste
haulers.
These included requirements for overnight parking and
covers on waste trucks.
Persons concerned that the proposal would somehow have the
effect of expanding the universe of materials considered to be
“wastes,” particularly with respect to slags generated in the
production of iron and steel, submitted the largest number of
post—hearing comments.
P.C.
#
5,
6,
7,
8,
10,
12,
13
& 14.
All
these cominenters stated that such slags are fully utilized as
products,
such as railroad ballast,
as concrete aggregate,
or as
raw material in the manufacture of glass and mineral wool.
The Illinois Environmental Regulatory Group and the Agency
expressed concern lest the new rules overturn prior Agency
determinations under Section 22.9(d)
of the Act or otherwise
create needless confusion.
P.C.
#
13.
&
16.
Some commenters also
observed that the DOH methodology may not always be applicable or
practicable.
P.C.
#
11,
15
& 16.
These urged the Board to
introduce sufficient flexibility
in the rules to allow use of
alternative modes of determining the nominal toxicity hazard
posed by a given waste-stream.
P.C.
#
15
&
16.
Dr. Schaeffer
recommended a bioassay-based approach that he has developed
in a
study undertaken for DENR which he asserts
is easily implemented
and made capable of gauging the synergistic and/or antagonistic
effects of individual constituents in
a waste stream,
so as to
assess the toxicity of complex mixtures.
P.C.
#
15.
BFI Waste Systems
(BFI)
joined in WNI’s criticisms of the
substantive requirements proposed
in Part 809 to regulate waste
haulers,
including proposed requirements for overnight parking,
maintenance and odor control.
P.C.
#
9.
BFI suggested that the
Board define “cover,” although at hearing two participants
suggested that covers might be impractical, unnecessary,
or even
detrimental in some cases.
P.
345—353
& 388—389.
Board Conclusions and Responses to First Notice Public Comment~
In its October
18,
1989 Interim Request, and again in the
November
15,
1989 Second Notice order, the Board emphasized that
the purpose and effect of the proposed rulemaking did
not include
expansion of the universe of wastes.
“Wastes” and “Industrial
Process Wastes” are defined
by the Act.
Judging from the several
comments received regarding steel slags, ~
P.C.
#
7,
it
appeared that such slags are properly defined as products unless
114--414
17
abandoned or discarded, and to that extent they are unaffected by
the proposed rules.
In light of the several comments suggesting
that some persons misunderstood this fact,
the Board inserted a
clarifying sentence
in Section 808.100(a).
After consideration of the several comments and questions
and the testimony at hearing,
the Board made several substantive
changes
in the proposed rule.
It was clear,
as many participants
had noted, that the Board must drop references to certain
provisions and concepts from this rulemaking
in view of the fact
that the proposed rules in R88-7 will not become effective prior
to this proceeding.
In consequence of this reality, the Board
deleted all present references to Part 811 and all substantive
requirements in the proposed amendments to Part 809 that are not
directly related to special waste classification
(e.g., proposed
Sections 809.221 through 809.227).
Similarly,
the Board deferred the First Notice-proposed
relocation of the hazardous
(infectious)
hospital waste rules
from Part 809 to Part 808,
together with the attendant changes to
the text of those rules.
These wastes were not newly evaluated
by DENR’S methodology.
This deferral also accommodated the need
for separate consideration of the hazardous
(infectious)
hospital
waste rules.
Finally, the ongoing legislative initiatives
regarding “medical waste” would affect infectious wastes
generally,
and the Board believed that this militated against
taking any new actions
in this proceeding.
As for the DENR/HWRIC classification system, the Board
concluded that this should serve as a component of
a system for
classification
of special waste wastestreams.
The Board clearly
did not intend this as a means of classifying wastestreams
in and
of itself.
It was also clearly a system that is to some extent
volume—dependent.
Moreover,
the Board did not utilize that part
of the HWRIC ranking system not justified by its science-based
methodology.
Rather,
the Board relied on other standards
(statutory or regulatory)
adopted and in place for other
wastestreams.
The trouble with using such standards,
such as the
pH standard of RCRA,
for example,
is that they are not
necessarily appropriate for or pertinent to the toxicity-based
ranking in this rulemaking.
Accordingly,
the Board discarded
Appendices C and D of Part 808 for the time being.
Although,
as of the date
of the Interim Request the Board
awaited the results of
a spot check of DENR’s methodology on
wastestreams previously submitted to the Agency for
declassification under Section 22.9(d)
of the Act,
it was not
persuaded by the concerns about adopting the rules before the
commentors could test the computerized degree of hazard system on
their own computers on wastes of their choosing.
DENR/HWRIC have
tested the computer system extensively; the DENI~/HWRICapproach
has been available for testing at HWRIC’s offices for
sonic time.
I
14—4
1 5
18
The commentors could have otherwise tested the system manually.
In any event,
the Board did not believe that
it should hold these
rules in abeyance for these reasons.
Moreover, the Board found that the concepts embodied in the
Agency’s current policy guidance document provide some basis for
a comprehensive system,
although they lack the discipline imposed
by use of a formal ranking system,
such as that proposed by the
DENR/HWRIC toxic hazard ranking system.
The testimony of Agency
witnesses makes clear that the present system for determining
declassification requests lacks a consistent approach for
determining toxicity and utilizing the resources of its own OCS.
Without regular use of a central body of information,
such as
OCS, there
is little assurance that determinations are consistent
and based on current data.
The Board did not find persuasive the
Agency’s assertions that inclusion of the proposed formal system
of evaluation
is unnecessary and that the computerized system
envisioned by HWRIC would prove too onerous to use.
On the other hand,
as to the concerns over the applicability
and volume—dependent measure of toxicity provided by Appendix
B,
the Board intended that the proposed Section 808.245 language
would clarify that an applicant may demonstrate the system
inapplicable, and use another equivalent or comparable approach.
No regulatory procedure or standard works
in every conceivable
circumstance.
The same remedies are available here as are
available without an articulated degree of hazard system,
except
that an articulated system provides a benchmark for evaluating
disputes.
Further, where waste volume
is
a factor
in
a lowered
toxic score or classification, new Section 808.245(f)
requires
that the Agency specify such factor in its determination
(also
see the new language in subsection
(b)
of Appendix B).
The Board was not convinced of the propriety of requiring
that waste treaters or disposers be brought into the
classification process as active participants.
In the Board’s
opinion, the proper role of operators of such facilities
is to
assure that wastes received are as described,
not to participate
at the Agency level
in the classification process.
Moreover,
practical considerations render involving the entire universe of
potential destinations
of a given wastestrearn infeasible.
The Board partially agreed with the comments from the
Metropolitan Water Reclamation District of Greater Chicago.
While the Board did not agree that all water or wastewater
treatment sludges should be exempt from the definition of
“special wastes,”
it did agree that such sludges already
regulated under an Agency—approved sludge management plan should
be exempt from the special waste manufacturing and hauling
requirements.
The Board added Section 808.121(b) (4)
to this
effect.
ii 4—416
19
The record persuaded the Board that the Agency is correct
in
asserting that information gathering by way of required reports
based on a four-part manifest, rather than keeping the Agency
in
the six—part manifest loop,
is warranted for non—PCRA special
wastes.
USEPA requires only
a four—part manifest for RCRA
hazardous wastes.
In neither the record of this docket nor
in
its predecessor dockets, P84-43 and R85-27, neither the Agency
nor any member of the regulated community has ever suggested that
burying the Agency under an avalanche of manifest forms serves a
necessary function.
Ultimately, the Agency seldom,
if ever,
timely uses the manifests due to their sheer volume.
The Board
agrees with the concerns of DENR and others that if the Agency
were taken out of the loop, the required reports should include
the same type of information, albeit reported on a less frequent
basis.
To this end, the Board added subsections
(h) and
(i)
to
Section 809.501.
However, the Board did not believe that annual reporting
provides an adequate measure of control over those wastes ranked
as having a high degree of potential hazard.
Hence, the proposed
Interim Request rules required quarterly reporting for Class A
wastes.
The rules required annual reporting for all Class B
wastes.
Consequently, the Board continued to distinguish between
special wastes that pose a high degree of hazard and those that
do not.
One related change was that the proposed rules group
together wastes posing a “moderate” degree of hazard
(i.e., those
which achieve a score of
2 under the system) with those pos~inga
low degree of hazard as Class B special wastes.
The Board made
this revision rather than considering those posing a “Moderate”
degree of hazard as Class A special wastes,
as previously
proposed.
Incorporation of Agency Policy
The Board altered the language of Part 808
in an effort to
“marry” the breadth and flexibility of the Agency’s policy
guidance memorandum with the HWPIC system for ranking relative
toxic hazards.
However, the casual reader would have had
difficulty finding the Agency’s existing guidance policy
in the
Interim Request proposal because the Board attempted to distill
that policy into basic elements before blending
it into the
rules.
The Agency’s guidance policy was set forth
in the November
1986 memorandum to solid waste generators entitled “Special Waste
Determinations,
Criteria and Procedures.”
Ex.
7,
Att.
A.
That
policy requires applicants
for declassifying special wastes to
provide information on:
1.
Aspects of the waste or waste stream;
114
417
20
2.
Health and Environmental Aspects;
and
3.
Disposal Site Aspects.
Close examination reveals that several
of the subcategories
of major divisions of this policy document are either unrelated
to the major division
(e.g.,
item A.l relates to the identity of
the applicant, not to the aspects of the waste or waste stream)
or overlap with other subcategories,
including subcategories of
other major divisions
(e.g.,
item A.5,
which requires a “physical
description and analysis,
including contaminant components of the
waste,” appears to replicate item B.l.c., which requires a
“physical description and components of the waste”).
For these
reasons,
the Board attempted to more clearly “sort out” the
concerns addressed by the Agency’s policy.
Procedural matters
aside, the Board perceived the Agency’s concerns and addressed
these concerns as follows:
1.
Wastes whose physical form renders them difficult to manage
in a landfill or in storage or transit, such as wastes
containing free liquids or consisting of finely divided
particles.
(Items A.3,
A.4,
A.5,
B.l.c.,
C.l,
C.2.a and
C.2.b.
appeared at least partly directed to this concern.)
The Board’s proposal embodies this concern in Section
808.245(C) (1)
2.
Wastes whose chemical properties render them difficult to
manage in a landfill or
in storage
or transit in the event
of a leak or spill.
(Items A.4,
A.5, B.7.a,
B.1.b.,
C.1,
and C.2.b appear at least partly directed to this concern.)
The Board’s proposal embodies this concern in Section
808.245(c) (2)
3.
Wastes whose chemical properties threaten the integrity of
containment devices and structures.
(Items A.5,
B.1.b.,
B.l.d., B.l.e and C.2.b appear at least partly directed to
this concern.)
The Board’s proposal embodies this concern
in Section 808.245(c) (3).
All three areas of concern are somewhat interrelated,
particularly areas
2 and
3.
For the purposes of the Interim
Request proposal,
the chemical properties of concern in item
2
were those which would pose a problem
in
the event of
a loss of
containment,
such as
a. spill,
leak,
or rupture.
The chemical
properties
of concern
in item
2 are those properties that promote
the creation of a spill,
leak,
or rupture due to the unstable
nature of the waste.
The same chemical property may exhibit both
characteristics
(e.g.,
a wastestream containing a high
concentration of hydrochloric acid may tend both to threaten the
integrity of containment due to its corrosivity and to make
difficult the management of the waste
in the event of
a leak or
11 4—418
21
spill due to its creation of toxic fumes and its mobility.
As for the specific manner of incorporating the Agency’s
policies, the Board reasoned that the potential toxicity of a
waste, represented by its “toxic score” as determined according
to Appendix B or an equivalent means,
should represent the “first
cut” means of classifying a waste.
Hence,
a waste stream’s toxic
score will determine its classification unless
(in the case of
wastes receiving a toxic score of
1 or
2)
its physical, chemical,
or “unstable” properties dictate the higher classification,
or
(in the use of wastes receiving
a score of
1,
2 or
3)
its mode of
containment or treatment warrants assigning the waste to a lower
classification
(including declassification)
in the form of
a
conditioned wastestream classification determination.
Under this
provision,
finely divided waste dusts or powders might qualify
for a reduced classification or for declassification based
on the
requirement that the generator deliver them for transport or
disposal
in bags, barrels or other containment that precludes air
dispersal.
One would normally expect declassification of wastes whose
“toxic score”
is zero.
However, the Board retained the concept
of “special handling wastes”
to address those situations where
the waste presents a hazard to persons handling it
in the course
of transport,
storage,
or disposal operations notwithstanding its
relative lack of toxicity.
At hearing, discussions concerning
talcum powder and similar types of non—toxic “fines,” which can,
nevertheless, present a potent threat to handlers
if
significantly inhaled, illustrated the need for this type
o.f
mechanism to allow the Agency to keep tabs on shipment and
disposal of such wastes.
Finally, the rules as proposed in the Interim Request did
not define the “dangerous characteristics” alluded to
in Section
808.245(e),
nor did they itemize which characteristics apply to
“special handling wastes,”
as defined in Section 808.110 and used
in Section 808.242.
One may assume that characteristics
in the
nature of those listed under 808.245(c)(l),
(c)(2),
and
(c)(3)
would tend to constitute
“dangerous characteristics” which could
render an otherwise declassifiable waste
a “special handling
waste.”
However, the Board refrained from explicitly limiting
the Agency’s discretion
in this regard.
This was to allow
the
Agency to consider other types of
“dangerous properties”
or other
types of circumstances that could warrant labelling a waste
as
a
“special handling waste.”
PROPOSED SECOND NOTICE
The Second Notice Opinion and Order of November 15,
1989
contained further clarification and changes, primarily
in
response to comments received after
the
October 18 Interim
Request
(P.C.
#14—21).
This included the preliminary review
11 ‘+—4
I
9
22
questions submitted by the Joint Committee on Administrative
Rules
(JCAR).
The Board accepted all comments submitted,
including those
filed
late; the Interim Request comment period was short, and
certain commenters stated that they received that document late.
The Board received comments from the Department of Energy and
Natural Resources and its Hazardous Waste Research and
Information Center
(DENR/HWRIC)
(P.C.
#19 and 21),
the Illinois
Environmental Protection Agency
(Agency)
(P.C.
#20),
and the
Illinois Environmental Regulatory Group
(IERG)
(P.C.
#17).
Also,
the Joint Committee on Administrative Rules filed preliminary
review questions at the Board’s request, and the Illinois
Department
of Commerce and Community Affairs, Small Business
Assistance Bureau filed its review
(P.C.
#18).
The Board also
accepted the motion to substitute comments from the Illinois
Steel Group
(P.C.
#22, substituted for P.C.
#10 and 14)
by its
Order of November
2,
1989.
In certain respects,
the comments received in response to
the Interim Request contain information or arguments already
considered by the Board and addressed
in the October
18,
1989
Interim Request order (recounted
in the above discussion).
The
November
15,
1989 Second Notice opinion
(recounted below)
concentrated on the Board’s responses to those portions of the
comments not previously addressed.
The Board further revised the
proposed rule in its Second Notice order
in response to the
comments received and the JCAR questions submitted prior to
Second Notice.
The Second Notice opinion explained the basis for
the changes made to the Interim Request order text of the
proposed rules.
Responses to the Interim Request
DENR/HWRIC supported the Interim Request proposal, but
expressed concern
in certain areas.
DENR/HWRIC believed that the
pH and flashpoint criteria should be used
in evaluating waste
hazard.
The Board believed that the Agency wouldevaluate these
criteria pursuant to Section 808.410, Physical and Chemical
Analysis,
as well as Section 808.245, Classification of Wastes.
In essence,
the Board intended that the Agency evaluate such
parameters
in addition to DENP/HWPIC’s toxicological hazard based
system.
DENR also believed that IERG’s “absurd results” example,
set forth in an earlier comment
(P.C.#ll),
overlooked the
definition of
innocuous substances.
DENR/HWRIC suggested that
a
reference to this definition be included
in Appendix
B for
clarity.
The Board
included
a paraphrase of DENR/HWRIC’s
recommended language.
See Section 808.Appendix B(a) (6).
DENP/HWP.IC then summarized the status of its degree
of
hazard analyses of wastes reviewed by the Agency under
its
interim guidance policies.
Of the
14 wastestream records the
114-420
23
Agency sent to DENR/HWRIC
as samples, DENR/HWRIC could make a
degree of hazard determination on eight.
DENR/HWRIC could not
evaluate five wastestreanis:
one because the Agency deemed
it was
not a waste, one because the Agency deemed it was not a special
waste, two
(that the Agency did not declassify)
because of
insufficient information, and one
(that the Agency did
declassify)
because the information the Agency provided to
DENR/HWRIC did not identify the waste constituents.
In the
latter case,
DENR/HWRIC noted:
Essentially no data on the waste were provided in the
letter of application for delisting to IEPA.
Only
a
sample was provided.
The Agency reviewed the special
waste stream application in making its determination
but without specific criteria or standards.
If the
Agency would have had the use of the degree of hazard
system when
(sic)
then they could have had a
scientifically defensible basis for making their
determination.
P.C.
#21, p.2.
The waste at issue was thermosetting plastic.
In a supplemental filing
(P.C. #l9)~, HWRIC performed
preliminary degree of hazard evaluations based on the information
available for two of the eight delisting applications noted
in
their earlier comments.
The first evaluation,
of a molding
sand,
supported the Agency’s decision to declassify.
The second
evaluation,
of one of 80 items listed (called “Resolve”)
also
posed a negligible degree of hazard.
The Agency had not made a
final determination on the latter application.
IERG
(P.C.
#17)
asked a series of questions aimed at showing
that the regulations would place a greater burden on the
generator than that the Agency presently requires.
IERG asked
if
anyone had complained about the present system of using Agency
guidelines.
In response,
the Board noted in its Second Notice
opinion that a scientifically-based system for ranking the
toxicology hazard component obviously places
a greater burden on
the generator wishing to obtain relief.
However, the Board
stated that the conclusion did not follow that this burden
therefore lacked merit.
While the Board was uncertain as to what
“complaints” IERG might have referred to, the Board did note:
1.
Based on the record,
the Board had crafted regulatory
language that meshes the Agency’s guidelines and
DENR/HWRIC’s system;
and
The P.C.
numbers are out of sequence because of inadvertent
delay
in giving a number to P.C.
#21.
114-421
24
2.
The Board had provided a considerably firmer footing
for
Board review of an Agency decision on appeal.
IERG also asserted its belief that, while recognizing that
the system
is voluntary,
generators will seldom use the system
because of the increased costs of the informational requirements
under the new system as compared to that required by the Agency
pursuant to its guidelines.
As an example, IERG used scrap
polystyrene plastic that the Agency “delisted” based on an
application to “delist,” a copy of the supplemental permit, and a
sample of the special waste.
The Board noted that this waste
appeared the same as or similar to the thermosetting plastic
wastestreani that DENR/HWRIC complained of for having
informational deficiencies.
The Board believed that the record
in this proceeding supported the need for a methodology,
including the underlying information,
to assess the potential
degree of toxicological hazard,
and that DENR/HWRIC had justified
the use of its system.
In its comments,
the Agency strongly opposed the
transitional requirement that
it re—review the wastestreams on
which it has already acted.
The Agency asserted that this would
strain its resources and provide no environmental benefit.
In
the Second Notice opinion, the Board disagreed.
It is hardly
unreasonable to require compliance with a regulation requiring a
systematized toxicological review.
The Board noted that the
manifesting relief provided
in these regulations would free up
considerable Agency resources.
The Board also suggested that the
Agency’s stated intent of not utilizing
its authority in the
transitional rules to phase—in 58 applications
(at the most)
would seem to aggravate the strain on resources of which the
Agency complains.
The Agency raised other issues in its comments.
In the
Second Notice opinion, the Board further questioned the basis for
the Agency assertion that its decisions are appropriately based
on the fact that “the material did not pose an environmental or
public health threat greater than that proposed by normal
municipal waste.”
P.C.
#20,
p.
2.
The Agency also disagreed
with use of dual special waste classes (Classes A and B),
asserting that the quarterly versus annual reporting system for
Class A and Class B wastes,
respectively, would cause confusion
among generators,
haulers, and receiving facilities and confer
little environmental benefit.
The Board disagreed.
The Board
decided that the four part manifest should continue and found
it
difficult to believe that
a generator of a Class B special waste
would suffer confusion over only having to file an annual report.
The Agency next questioned the use of terms like negligible,
low,
or moderate degree of hazard in Section 808.240(a)
and
(b),
which the Agency suggests implies that refuse or municipal waste
114—422
25
poses
a negligible degree of hazard.
The Board noted that these
regulations relate to special waste and do not address the
municipal waste issue.
However, the Board simplified Section
808.240(a)
to succinctly state that there are Class A and Class B
special wastes and declassified wastes.
The Board believed that
the use of low or moderate degree of hazard in Section 808.240(b)
is appropriate to the ranking system.
The Board added Section
808.100(c)
to clarify that declassified wastes remain subject to
Board regulations governing non—special wastes.
The Board responded
in the Second Notice discussion to
Agency concerns over the public availability of submitted
information.
The Board did not see how Section 808.302(b) (5)
orders the release of confidential
or trade-secret material any
more than is the case,
for example,
in a permit setting.
The
Board also clarified that
it intended maintenance of a publicly
available list of data sources,
required in Section 808.302, to
include sources of data and bioassay procedures previously
utilized by the Agency, thus removing the implication that these
are of
a rulemaking nature.
The Board further addressed Agency concerns over required
reports under the proposed rules.
In response to the Agency’s
recommendation that the Board require generators to submit
discrepancy reports on an annual basis and annual reports
in all
cases, the Board notes that shifting such a requirement would
impose a new burden on the regulated community beyond what the
manifest regulations presently require.
This
is therefore
a
subject more appropriate to another proceeding.
The Board also
noted that the quarterly reports would enable the Agency to more
timely oversee compliance
for potentially high hazard special
wastes.
As to concerns over any perceived added burden imposed by
the system,
the Board did not believe that the Interim Request
Opinion and Order was unclear about the fact that the Board
intended the toxic score as the first declassification screen
which the waste must pass through for ultimate declassification.
The Board determined that DENR/HWRIC system potential
is
a
component
of first concern.
Also,
the DENP/HWRIC system did
indeed anticipate the availability of more information than
is
available
in wastestream requests,
a point DENR/HWPIC made
in its
own comments.
The Agency also recommended definitions for “Carcinogen” and
“Mutagen.”
The Board did not feel that this was necessary in
this particular regulation,
and noted that the Agency stated that
there are many and various definitions for these terms.
The
Board also
rioted that
if
a definition
is necessary,
there is
merit to using the same definition
as
is used by USEPA.
However,
in deference to the Agency’s stated concern, the Board inserted
the proffered definitions
in Section 808.110.
The Board also
1
1-’+-
~
26
included the Agency’s recommended definitions for pH and
flashpoint
in Section 808.410(b) (2)
and
(b)(3),
for consistency
with the clarification in the Board’s October 18,
1989 Interim
Request.
In response to the Agency’s proposed changes regarding the
oral versus inhalation rat issue, the Board declined to make the
changes for reasons expressed by DENR/HWRIC and noted earlier
in
this Opinion.
Also, while there was dispute over which test
methodology should take precedence,
the rules provide for
flexibility.
Paragraph
(i)
of Appendix B provides conversion
factors for moving to an equivalent oral toxicity from other
measures of toxicity based on exposure route,
including
inhalation and dermal routes.
Finally, the Agency expressed strong support for the Board’s
proposal to shift from the six part to a four part manifest and
affirmed that the Board’s regulatory format accurately reflected
the Agency policy paper.
The Board also made other Agency-recommended changes when
adopting the Second Notice version of the proposed rules:
1.
The Board changed Section 808.402, so that
it would require
the generator to describe the current disposal processes
applicable to the wastestream.
2.
The Board changed Section 808.520,
to delete the unnecessary
30 day “more information” limit.
3.
The Board added “if any” after the words “expiration date”
in Section 808.521(f).
4.
The Board changed the annual Class B reporting date in
Subsection 809.501(g)
to October 1st rather than March 1st,
as requested by the Agency.
5.
As to Section 808.541, the Agency was correct that the Board
had earlier acknowledged that the rules should not contain
any language referring to motions for reconsideration before
the Agency; the failure to earlier correct this section was
inadvertent.
6.
Regarding Agency-recommended changes to Section 808.430, the
Board made the clarification in Section 808.402.
7.
The Board added language to Subsection 808.430(a)
to clarify
that the applicant is to submit the underlying information
or data used
in the degree of hazard calculation.
8.
The Board corrected a typographical error,
“190 days,” to
“180 days”
in Section 808.123.
114—424
27
The Board also made a number of changes to the proposal in
the Second Notice order on its own initiative.
Most of these
were in the nature of corrections of typographical errors.
The
Board made some changes to promote internal parallelism in
sentence structure or to eliminate redundancies
(e.g., deletion
of Sections 808.246 and 808.503).
One change was to delete a
reference to non—existent Part 810
(i.e.,
the former definition
of “waste”
in Section 808.110),
consistent with the Board’s First
Notice Opinion, page
7.
Changes of note include the following:
1.
addition of subsection 808.240(e),
to include a
specific reference to Subpart H;
2.
amendment of the definition of “special handling waste”
in Section 808.110 and the provisions of Section
808.242, to make clear that the Agency can impose
conditions on wastes in storage as well as in
transport;
3.
amendment of the title and text of Sections 808.243 and
808.244, for clarity;
4.
amendment of Section 808.245(a),
to clarify the
standards for determining whether a test methodology. is
“equivalent or comparable”
(and eliminating the use of
these terms upon which the Agency and IERG negatively
commented)
and to provide for a binary alternative
means of showing entitlement to a toxic score of
0
(zero) where Appendix B or its equivalent under 808.431
is inapplicable or unavailable
(e.g., waste for which
there
is no toxicological data or testing protocol);
5.
expansion of the “reasonably reliable” factors set
forth in Section 808.302,
to include bioassay
procedures
(necessitated by the previously-described
amendments to Section 808.245);
6.
restoration of Subsection
(b)
of Appendix B to its
correct text as set forth in the Board’s First Notice
proposal;
(The text of the Board’s order of October
18,
1989,
erroneously omitted the introductory portion
of this subsection, rendering it meaningless,
and
further erroneously included text as a subparagraph
(b) (1) that related to off—specification,
surplus,
or
spoiled food products.
This text was among several
alternatives considered and rejected by the Board as
overly broad and was never intended to be inserted
in
the proposal.
Since no commentor made note either of
this subsection’s garbled text or its incongruous
reference to food products,
the Board assumes that no
harm or prejudice occurred as a result of this error.)
114-425
28
and
7.
changing of the reporting deadlines
in Subsections
809.501(f)
and
(g)
to “as mailed” rather than “as
received,” because of the relatively short time frame
particularly for the quarterly reports.
The Board also made certain changes in response to JCAR’s
preliminary questions filed October
3,
1989.
1.
In Section 808.123, the Board added a sentence to
articulate that small quantity generators can record
and maintain quantities and rates of waste generated
and accumulated to establish compliance with the time
limit on accumulation.
2.
In Section 808.402(b),
the Board deleted the second
sentence.
Appendix B
is always used if a toxic score
is to be calculated.
Section 808.245(a)
is the
controlling language for alternative toxicity test
methods.
~
JCAR question 10.
3.
In Subpart H, the Board primarily created Section
808.600
to mesh the Board’s Hazardous
(infectious)
Hospital Waste regulations from Part 809 into Part 808.
The Board believes that
it should preserve this
Subpart.
However,
the Board modified the language of
subsections 808.600(a)
and
(b) for greater clarity.
~
JCAR question 22.
4.
In Section 808.110, the definition of “special waste”
makes clear that the definition derives from the Act.
~
JCAR question
4.
5.
In Section 808.412,
the Board added
a phrase from the
Board Note to clarify when common names are to be used.
~
JCAR question
16.
6.
In Section 808.520, the Board inadvertently omitted the
statutory phrase
in 22.9(e)
regarding Agency denial of
a request.
~
JCAR question 19.
7.
In Section 808.545, the Board did not intend the
requirement as
a Board Note and has corrected
this.
Other JCAP questions required only non-substantive edits.
The Board made these without elaboration.
The Board directly
responded to JCAR during the Second Notice period on the rest of
its questions.
The Board also noted in its Second Notice Opinion that DCCA
deferred to the “Illinois Environmental Group” for its comments.
IlL,—426
29
As a final observation
in its Second Notice opinion, the
Board noted that some of the concerns relating to potential
problems with using the degree of hazard system were by and large
speculative in nature.
The Board also noted that,
at hearing,
DENR/HWRIC offered to supply diskettes for testing the system or
for other purposes to anyone who requested them.
However, the
record since that time contains no challenges to the system.
In
any event, the Board was persuaded that further problems,
if any,
will not be identified until the regulations are effective and
generators have submitted some of the data on which the system
depends.
If difficulties arise, the Board can later address them
as demonstrated in another proceeding.
FINAL ADOPTION
The Board adopts the November
15,
1989 Second Notice text,
and the enunciated rationale underlying that text,
with no
substantive revisions.
However, the Board has effected a number
of non—substantive changes to that text.
These are limited to
corrections to citation format,
clarifying changes, grammatical
corrections,
etc.
The Board effected these changes in two
stages:
prior to submission of the package to JCAR for review
(on June
1,
3.990) and during the course of dialogue with JCAR
staff
(up to July
9,
1990).
The Board outlines those revisions
in the following discussions.
Citation Format
The Board has revised the format of all citations to federal
and state statutes,
to the Administrative Code, and to other
documents and corrected codification format where necessary to
comport with current Administrative Code Unit requirements and
present Board usage:
1.
The simple reformatted citations are located at Sections
808.100(c),
808.101, 808.110
(definition of “Act”),
808.302(a),
808.431(a),
808.542(a),
808.542(b)(2),
808.545(b),
808.App. B(a)(3), 808.App. B(a)(5), 808.App.
B(b)(2),
808.App. B(d)(2), 808.App. B(e)(3),
808.App.
B(h) (3) (A),
808.App. B(j) (3),
809.103
(definitions of “Act,”
“Hazardous waste,” “Manifest,”
“Refuse, and “Waste”),
809.211(a),
809.211(b),
809.211(c),
809.211(d),
809.211(e),
and 809.211(f);
2.
The corrected citations to the wrong Section are located at
Section 808.110
(definitions of “Degree of hazard” and
“Special handling waste” Board Note)
;
3.
The previously-absent, newly—added name and citation to the
relevant statutes are located at Sections 808.100(a)
and
809.103
(definitions
of
“Refuse”
and “Waste”) ;
11
4—427
30
4.
The previously-absent,
newly-added statutory citations and
proper format to the rule provisions that are merely
quotations from the Illinois Revised Statutes are located at
Section 808.110
(definition of
“Special waste”)
,
808.121(c),
and Section 809.103
(definitions of “Disposal,”
Garbage,”
“Hazardous waste,” “Industrial process waste,” “Person,”
“Pollution control waste,”
“Site,” “Treatment,” and
“Waste”);
5.
The incorporations by reference,
formerly at Sections
808.110
(definitions of “Carcinogen” and “Mutageri”) and
808.410(b) (3) are now centrally located at Section 808.111,
in the single format that the Board has begun to use for all
incorporations by reference in Board rules
(e.g.,
at Section
720.111 of the Board’s PCRA rules);
and
7.
The Code-reformatted text appears at Section 809.501(j).
Grammatical,
Punctuation,
Clarifying,
Etc. Revisions
The Board also revised the text of several sections to
correct typographic, punctuation,
and grammatical errors;
to
restore misplaced text; and to enhance clarity.
The Board will
not specify very minor typographic,
punctuation, and grammatical
corrections
in this Opinion,
but the other corrections of these
types are as follows:
1.
The restored text appears at Sections 808.110
(definition of
“Hazardous waste”), 808.111
(ASTM Standard D—93—79
or D—93—
80),
808.245(e),
808.App.
B(a),
808.App.
8(b),
808.App.
8(c)
(Board Note)
(from 808.App. B(a)(4)),
808.App.
B(e),
808.App.
8(i),
and 808.App.
B(k)(2); and
2.
The rewording for enhanced clarity appears at Sections
808.101,
808.110
(definitions of “Degree of hazard,”
“Hazardous waste,” and “Special
(non—RCRA)
waste”), 808.122,
808.123, 808.240(b), 808.241,
808.243(b),
808.244(a),
808.244(b), 808.245
(all subsections except
(b)),
808.300,
808.301(b),
808.302(b),
808.302(c),
808.400(a),
808.402 (a) (4),
808.402(a) (6),
808.410, 808.410(c) (3),
808.410(c) (4),
808.410(d),
808.411
(both subsections),
808.412
(Board Note),
808.413
(all subsections except
(a)(3),
808.420,
(all,
including second Board Note,
except
subsection
(a)),
808.430
(all subsections,
including second
Board Note),
808.431
(both subsections), 808.501(a),
808.502
(both subsections),
808.521(e),
808.521(f),
808.541,
808.542(a),
808.542
(b)(l)
(including Board Note),
808.543,
808.544, 808.545
(both subsections), 808.600
(both
subsections),
808.App. A (reformatted),
808.App.
B
(preamble
added),
808.App. B(a)(4)
(Board Note), 808.App.
B(b)(5),
808.App. B(d)(1), 808.App.
B(g),
808.App.
13(h)(2),
808.App.
1
I 4-42 ~
31
B(h)(3)
(all subsections except
(A)),
808.App.
8(j)
(all
subsections), and 808.App. 8(k)
(both subsections).
Other Revisions
Finally, the Board made a few corrections in consultation
with JCAR staff that are worthy of individual note and
discussion.
These revisions are as follows:
1.
New definitions of terms,
“LC50,”
“LD50,” and “TC59” appear
at Section 808.110.
These terms are used at Sections
808.431(c),
808.App.
B(h), and 808.App. 8(i).
The Board
felt that adding the definitions would add clarity to the
rules.
Further, the Board changed the format of these terms
to use the subscript,
as is commonly used by toxicologists,
rather than the prior format
(e.g. LC5O now appears as
LC50).
The Board believes that this will help avoid
possible confusion as to the meaning of the terms.
2.
A new Board note appears at Section 808.110
(definition of
“Special waste”)
to highlight the fact that two definitions
of “hazardous waste appear
in the Solid Waste rules and the
Act.
The Board Note highlights that the definition of
Section 3.15 of the Act applies to his definition, whereas
the operative definition of “Hazardous waste” that appears
at Section 808.110 applies throughout the rest of this Part.
3.
New language at Section 808.240(c)
clarifies the use of the
Section 808.App. A flow chart for ascertaining waste
categories.
This language also makes clear that it
is the
order of appearance of the Part 808 queries on that chart,
and not the order of appearance of the various sections
in
the main body of Part 808,
which ultimately dictates the
waste category.
4.
Section 808.301(e)
is now clear that the output of a
computer-generated degree of hazard determination must
display the data and data sources used.
5.
Added language at Section 808.302(c)
clarifies that only
information protected under Sections
7 or 7.1 of the Act or
Parts 101 or 120 of the Board’s rules are exempt from Agency
disclosure.
6.
Language formerly at Section 808.502(b)
relating to waivers
of Agency decision deadlines no longer appears
in the rules.
The Board removed that “however” clause in response to
a
JCAR request that the Board include additional language
specifically outlining the criteria whereby the Agency could
hold an application.
It is sufficient that members of the
regulated community can deal directly with the Agency on
I 14--429
32
these waivers.
The Board does not need to include language
that explicitly outlines this inherent right.
7.
The Board reformatted the flow chart of Section 808.App. A.
This new format does not affect the decision branching of
the chart
in any way.
8.
The effective date of the quarterly and annual report
requirements, at Section 808.501(f)
and
(g),
erroneously
appeared as “January 1,
1990” in the Second Notice order.
That date
is past due.
The Board revised those subsections
to reflect the correct date of January
1,
1991.
CLARIFICATION
The Board has become aware that clarification of the
applicability of this proceeding on the oil and gas exploration
industry
is necessary.
The issue relates to the interpretation
of the Section 809.211(e)
exception for haulers of oil and gas
extraction wastes.
Section 809.211 lists a number of exclusions from the
special waste hauling and manifest requirements for persons
engaged in specified activities.
Subsection
(e) excepts those
described as follows:
Any person operating under rules and regulations
adopted pursuant to “An Act in relation to Oil,
Gas,
Coal and Other Surface and Underground Resources”
(Ill.
Rev.
Stat.
1989,
ch. 96!~, par.
5401 et seq.)
and who
hauls only oil and gas extraction wastes as defined in
that Act.
Section
1 of the Oil and Gas Act,
Ill. Rev.
Stat.
1989,
ch
111½,
par.
5401, defines “person,”
“oil,” “gas,” and “waste.”
The
Board intends that the Section 809.211(e)
phrase “as defined
in
that Act” apply only to that statute’s definitions of “oil” and
“gas.”
Part 809 already includes the operative Environmental
Protection Act definitions of “person” and “waste.”
~
Section
809.103;
see also Ill.
Rev.
Stat.
1989,
ch.
111½,
par.
3.26
&
3.53.
Since the definitions of the Oil and Gas Act are not
identical to those of the Environmental Protection Act,
use of
those terms “as defined in that Act” could lead to anomalous
results.
For example,
the Oil and Gas Act definition of “waste”
outlines a concept akin to
a doctrine of equity
in which “waste”
is an activity rather than
a thing.
Therefore,
the Board intends
use of only “oil”
and “gas”
as defined
in the Oil and Gas Act.
CONCLUSION
The Board has discussed the rationale for each revision made
to the evolving text of the proposed rules at each stage of this
114—430
33
proceeding.
To the extent the Board has,
in this Opinion,
reiterated the discussions from earlier opinions without a shift
in position, the Board hereby adopts that matter as the present
rationale for the adopted rule.
For the foregoing reasons the Board proceeds to adopt the
special waste categorization rules as embodied in the separate
Order of this same date.
The Board will immediately file these
rules with the Secretary of State and submit the Notice of
Adopted Amendments for Part 809 and the Notice of Adopted Rules
for Part 808 for publication in the Illinois Register.
IT IS SO ORDERED.
J.
Durnelle and M.
Nardulli dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
do hereby c~jify that th~above Opinion of the Board was
adopted on the
‘7’-~
day of
~‘f~~7
,
1990,
by a vote of
__
CI
~.
~
Dorothy N. ~unn,
Clerk
Illinois Pollution Control Board
114—431
