ILLINOIS POLLUTION CONTROL BOARD
March 17,
1994
IN THE
MATTER
OF:
)
R93—16
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(1—1—93 THROUGH 6—30—93)
)
Adopted Rule.
Final Order.
OPINION OF THE BOARD
(by
E. Dunham):
Pursuant to Section 22.4(a)
of the Environmental Protection
Act (Act), the Board adopts amendments to the RCRA hazardous
waste
(RCRA)
regulations.
Because the volume of the amendments
occupies over 200 pages, the complete text of the adopted
amendments appears in a separate order adopted this day.
In that
order,
revisions from the text of the amendments as proposed are
specifically accentuated.
Highlighting indicates the revisions
from the proposal for public comment.
Where the entire Section
heading is highlighted, the Section was not included in the
proposal for public comment.
Highlighting within such a Section
focuses on the actual amendments adopted.
Section 22.4(a) provides for quick adoption of regulations
that are “identical in substance” to federal regulations adopted
by U.S. EPA to implement Sections 3001 through 3005 of the
Resource Conservation and Recovery Act of 1976
(RCRA,
42 U.S.C.
SS 6921-6925)
and that Title VII of the Act and Section
5 of the
Administrative Procedure Act
(APA)
shall not apply.
Because this
rulemaking is not subject to Section 5 of the APA,
it is not
subject to first notice or to second notice review by the Joint
Committee on Administrative Rules
(JCAR).
The federal RCRA
Subtitle C regulations are found at 40 CFR 260 through 268, 270
through 271,
and, more recently,
279.
FEDERAL ACTIONS CONSIDERED IN THIS
RULEMAKING
This rulemaking updates the Illinois RCRA Subtitle C rules
to correspond with federal amendments made in the period from
January
1 through June 30,
1993.
The U.S. EPA actions during
this period are as follows:
Federal Action
Summary
58 Fed. Reg. 8658
(Feb.
16, 1993)
Corrective Action
Management Unit (CAMU)
and Temporary Unit
(TU)
regulations applicable to
RCRA Subtitle C
corrective actions
58 Fed. Reg.
14317
(Mar.
17,
1993) Amendments to land
disposal restrictions for
2
Third Third wastes.
58 Fed. Reg. 26420
(May 3,
1993)
Technical amendments to
the used and waste oil
management standards
58 Fed. Reg. 28506
(May 14,
1993)
Renewal of case—by—case
capacity variance from
the land disposal
restrictions for
hazardous debris
58 Fed.
Reg. 29860
(May 24,
1993)
Land disposal restric-
tions for ignitable and
corrosive wastes whose
treatment standards were
vacated
58 Fed. Reg. 33341
(June
17,
1993)
Corrections to used and
waste oil management
standards
The Board dealt with the amendments of May 24, 1993 in the
preceding docket, R93-4.
As was discussed in that proceeding,
U.S.
EPA responded to the judicial remand in Chemical Waste
Management v. EPA, 976 F.2d
2
(D.C.
Cir. 1992),
in those
amendments.
U.S. EPA stated in its preamble discussion that it
acted promptly to avoid an absolute ban on land disposal of the
wastes involved.
The Board did not delay further action until
this docket for that reason.
Therefore, the present amendments
do not include the federal actions of May 24,
1993, except as
discussed below with regard to corrections to Section
703.Appendix A prompted by PC 1.
PUBLIC COMMENTS
The Board adopted a proposal for public comment on December
16,
1993.
Notices of proposed amendments appeared in the
Illinois Register on January 14,
1994, at 18 Ill. Reg. 337
(Part
720),
357
(Part 721),
377
(Part 725),
388
(Part 728),
406
(Part
702),
419
(Part 703), 439
(Part 724), and 455
(Part 739).
The
Board received public comment on this proposal for a period of 45
days following that date of publication.
The Board will delay
filing any adopted rules with the Secretary of State for 30 days
after adoption, particularly to allow U.S. EPA review.
The
complete text of the proposed amendments follows the discussions
of this opinion.
On November 30,
1993, the Board received a comment from U.S.
EPA Region V on the text of R93-4, already adopted and filed with
the Secretary of State.
The Board will deal with the U.S. EPA
comments in this docket,
since it is now impossible to do so in
3
R93—4.
The Board also recieved a copy of a letter from the
Illinois Department of Commerce and Community Affairs
(DCCA) to
the Joint Committee on Administrative Rules
(JCAR),
which we have
docketed as a public comment.
We also received brief comments
from U.S. EPA and the Secretary of State that indicated
corrections to the proposed rule.
The public comments received
are docketed in this proceeding as follows:
PC
1 U.S. EPA Region V, Waste Management Division
(11—30—93,
by Norman R. Niedergang, Associate Division Director
for RCRA)
PC 2 Illinois Department of Commerce and Community Affairs
(1-26-94, by Linda
D. Brand, Manager, Regulatory
Flexibility Unit, to Vicki Thomas, Executive Director,
Joint Committee on Administrative Rules)
PC
3 U.S. EPA Region V1 Waste Management Division (2—14-94,
by Norman R.
Niedergang, Associate Division Director
for RCRA)
PC
4 Office of the Secretary of State,
Index Department,
Administrative Code Division (3-1-94, by Connie
Bradway)
PC 1 makes substantive comments on two Sections involved in R93—
4.
PC 2 states that DCCA has determined that the proposed rules
will not significantly impact small businesses.
PC
3 and PC 4
indicate a small number of corrections to the text of the
amendments as proposed.
The Board considers the comments in
appropriate segments of the detailed discussions below.
In addition to the public comments recieved, the Board
received communication from staff of
JCAR.
This communication,
which came as a series of phone calls to Board staff, indicated
problems with the base text used for the proposal for public
comment.
This prompted an extensive review of the base text,
and
a number of corrections to the text of the amendments as proposed
has resulted.
The Board discusses the details of these
corrections below.
In addition to the problems with the base text, JCAR staff
raised a fundamental issue relating to the scope of the Board’s
identical-in—substance rulemaking authority.
JCAR essentially
questioned whether the Board should use the Section 28.2
procedures for “federally—required” rules, rather than the
Sections 7.2 and 22.4(a) procedures for identical-in—substance
rules, whenever the Board deviates from the text of the federal
regulations upon which our action is based.
We discuss this
issue separately below.
4
HISTORY OF RCRA SUBTITLE C, UST and UIC ADOPTION
AGENCY OR BOARD ACTION?
EDITORIAL CONVENTIONS
The Board appended three routine discussions at the end of
this opinion.
The first is a summary history of the Illinois
RCRA Subtitle C and UIC programs.
It lists all actions taken to
adopt and maintain these programs since their inceptions.
It
includes a listing of all site—specific rulemaking and adjusted
standards proceedings filed that relate to these programs.
It
also lists all U.S. EPA program authorizations issued to date.
The second is a discussion of how the Board codifies requirements
that call for state determinations,
such as for exemptions,
exceptions, etc.
The third discussion relates to our use of
language in the codification of identical—in-substance rules.
We
intend these as reference aids for interested persons in the
regulated community.
DISCUSSION
The five federal actions that underlie this proceeding each
have a distinct impact on the Illinois RCRA Subtitle C
regulations.
This segment of the discussion briefly focuses on
each by subject matter.
The more detailed Section-by-Section
discussions that follow indicate the specific details of the
actions taken by the Board.
Corrective Action
CAMTJ
and TU Rules
The U.S. EPA action of February 16,
1993 instituted a set of
specialized regulations applicable to RCRA Subtitle C corrective
actions.
Under the Hazardous and Solid Waste Amendments of 1984
(HSWA), Congress mandated corrective action at RCRA Subtitle C-
regulated facilities.
Section 3004(u)
of RCRA,
as amended under
HSWA, requires U.S. EPA to address corrective action for all
releases from regulated facilities in issuing permits.
Under
section 3008(h), U.S. EPA can issue an administrative order
requiring corrective action at unpermitted interim status
facilities.
Finally, section 3004(v) authorizes U.S. EPA to
require remediation of releases that have migrated beyond the
boundary of a facility.
The February 16 amendments implement a
regulatory framework for implementing corrective actions.
U.S.
EPA intends to implement more comprehensive facilities standards
rules at a future time.
In many respects, the February 16,
1993
CANU
and PU
amendments represent a relaxation of existing treatment, storage,
and disposal facility (T/S/D)
standards.
U.S. EPA intended this
to give greater flexibility in implementing corrective action at
a site and to avoid the impediments to corrective action posed by
5
those existing standards at
RCRA
Subtitle C and Superfund1 sites.
U.S. EPA implemented these limited segments with the stated hope
of realizing the benefits they would confer on a more accelerated
basis.
However, U.S. EPA cautioned in the preamble discussion
that its adoption of these
CAMU
and TU rules does not affect the
existing closure regulations and requirements for RCRA Subtitle
C-regulated T/S/Ds.
In general, the federal amendments added definitions for
“CANU” and “remediation waste”, added CANUS to the definitions of
“facility” and “miscellaneous facility”, and excluded CANUS from
the definitions of “disposal facility” and “landfill”.
The
CANU
facility standards of subpart S of part 264 now apply to interim
status T/S/Ds, which are otherwise exempted from the part 264
T/S/D standards.
In the first of the two new sections that
constitute new subpart S, the Regional Administrator is
authorized to designate one or more CAMU5 within a facility
boundary to accommodate remedial waste,
and management of such
waste within the designated area does not constitute disposal of
hazardous waste, and it is not subject to minimum technology
standards.
Otherwise, the releases, closure and post—closure
care,
and financial responsibility requirements of part 264 or
265 apply to the unit.
That section imposes other management
requirements on the CAMU.
The second new section allows the
Regional Administrator to designate one or more temporary units
(TU5) within a facility for the temporary storage or treatment of
remediation wastes.
In designating a TU, the Regional
Administrator is required to impose conditions on the management
of wastes within the TU.
The designation of a
CANU
or TU is
considered a facility permit modification.
Amendments to Third Third Land Disposal Restrictions
U.S. EPA adopted the Third Third land disposal restrictions
on June
1,
1990, at 55 Fed. Reg. 22520.
It issued technical
corrective amendments with regard to reactive cyanide— and
sulfide-bearing wastes on March 6,
1992, at 57 Fed. Reg. 8086.
(The Board adopted the Third Third regulations in docket R91-1,
on August
8,
1991, and the corrections in R92-10, on January 21,
1993.)
In issuing the technical corrections, U.S. EPA rendered
the corrective amendments effective immediately.
The amendments
of March 17,
1993 suspended portions of the corrective language
in 40 CFR 268.3(b)
(D003 reactive cyanide wastewaters and
nonwastewaters)
and 268.42(a) Table
2
(D003 reactive sulfide
wastewaters) until June 17,
1993.
In the past, the Board has not
amended our regulations to codify past federal effective dates.
The Comprehensive Environmental Response, Compensation, and
Liability Act of
1980
(CERCLA,
42
U.S.C.
SS
9601 et seq.), also
known as “Superfund”.
6
Therefore, we note the federal action at this point, but we do
not amend the regulations to codify the past date.
Corrective Amendments to the Used & Waste Oil Regulations
Section 3006(h)
of RCRA,
as added by the Superfund
Amendments and Reauthorization Act of 1986
(SARA), authorized
U.S. EPA to establish minimum standards for state programs to
regulate used and waste oil.
On May 20,
1992, at 57 Fed. Reg.
21524,
U.S. EPA decided not to deem used oil as a listed
hazardous waste, and it created a limited exception for drained,
used oil—filters from hazardous waste regulation.
On September
10,
1992, at 57 Fed. Reg.
41566,
U.S. EPA adopted regulations
that established standards for the management of used oil for
recycling.
(The Board adopted the used oil filter exception in
docket R92-1O and the used oil recycling standards in docket R93-
4, on September 23,
1993.)
The base used—oil recycling
requirements, established as new part 279, provided minimum
standards for the management of used oil for recycling apart from
the general T/S/D standards of parts 264 and 265.
The
regulations further provided for federal authorization of state
programs to regulate used oil for recycling.
On Nay 3,
1993, at 58 Fed. Reg.
26420, and June 17,
1993, at
58 Fed. Reg. 33341,
U.S. EPA adopted corrections to these used
oil rules.
U.S. EPA corrected errors as to the HSWA status of
various of the requirements.
U.S. EPA further made numerous
technical corrections and amendments to the rules.
The June 17
corrections essentially reversed the May
3 corrections with
regard to four federal provisions.
These are discussed in detail
in the discussions of the Part 739 amendments below.
Renewal of Hazardous Debris Capacity Variance
On May 8,
1992, at 57 Fed. Reg. 20766
(Nay 15,
1992), U.S.
EPA adopted a one—year case—by—case capacity variance from the
land disposal restrictions for certain hazardous debris.
At 58
Fed. Reg. 28506
(May 14,
1993),
on May 8,
1993,
it extended that
variance until May 8,
1994.
U.S. EPA stated that this will delay
the applicability of the land disposal restrictions to the
covered hazardous debris to the maximum extent allowed by federal
statute, so no further extensions or variances may be granted.
The detailed discussions below of the Part 728 amendments
indicates the exact nature of the wastes covered.
SCOPE OF THE BOARD’S IDENTICAL-IN-SUBSTANCE MANDATE
Before considering the details of the substantive amendments
involved in this proceeding, the Board will consider the question
raised by JCAR staff.
That question involved the scope of the
Board’s identical—in—substance mandate under which we adopted the
RCRA Subtitle C regulations and through which we have adopted the
7
several amendments to those rules since that time.
Occasionally, the Board must adapt federal provisions to the
Illinois regulatory scheme when adopting identical-in-substance
rules based on the federal amendments.
This is due to
differences in federal and state structure and administrative
law.
For example, whereas there is only one federal
environmental regulatory agency that establishes regulations;
grants permits, variances,
and exemptions; performs inspection
and compliance oversight;
and conducts administrative enforcement
proceedings,
in Illinois these functions are divided.
As we have
discussed several times in the past, the Board establishes
regulations, grants variances and adjusted standards
(the
Illinois counterpart to a federal exemption), and hears
administrative enforcement proceedings.
The Agency grants
permits and performs inspection and compliance oversight
functions.
Thus, the Board must often discern which type of
function U.S. EPA intends by its regulation and appropriately
draft a rule that vests that function in the proper state agency.
Further, the Environmental Protection Act divides responsibil-
ities between the Board and the Agency.
Together with the
Administrative Procedure Act and the courts, the Act imposes
limitations on the exercise of discretion by the state agency
charged with responsibility.
The discussion of the
CANtJ
and TU
rules of Sections 724.652 and 724.653 below highlight the
limitations imposed by the recent Granite City Steel decision.
In fact, it is in the context of the Section 724.653
temporary unit
(TU) rule that the issue arises in this matter.
As is more fully discussed below, by establishing the TU rule,
U.S. EPA intended to facilitate corrective actions by granting a
transient and flexible case—by—case exemption from certain of the
T/S/D facility standards.
If the site owner or operator could
demonstrate that alternative requirements are “protective of
human health and the environment”, the Regional Administrator
could grant a “permit or order”
(58 Fed. Reg.
8674,
Feb.
16,
1993)
that allows operation of a TU.
The problem with this is
that under Illinois law either the Board must reserve the TU
designation as a variance or adjusted standard proceeding or
delegate it to the Agency as a permit decision.
Due to the
shortened time of obtaining a permit decision,
as opposed to a
variance or adjusted standard, the Board believed that rendering
a TU designation as an Agency permit decision would more closely
follow the federal intent.
However, the federal “protective of
human health and the environment” standard for issuance is not
sufficient in light of Granite City Steel.
This forced the Board
to add to the federal language a clause which essentially reads
“equally as protective
.
.
.
as the requirements of Part 724 or
725,
if applied”.
JCAR questioned this addition, asking whether it would have
been more appropriate to adopt the federal language nearly
8
verbatim by identical—in—substance procedures, then follow up
with a Section 28.2 rulemaking to adopt the added language.
JCAR
cited Section 7.2(a)(3)
in support of its question (with emphasis
on the underlined segment):
If a USEPA rule prescribes the contents of a State
regulation without setting forth the regulation itself,
which would be an integral part of any regulation
required to be adopted as an “identical in substance”
regulation as defined in this Section, the Board shall
adopt a regulation as prescribed, to the extent
possible consistent with other relevant USEPA
regulations and existing State law.
The Board may not
use this subsection to adopt any reciulation which
is a
required rule as that term is defined by Section 28.2
of
this
Act.
.
In response to the JCAR query, the Board maintains that
Sections 7.2 and 22.4(a) require us to adopt regulations, using
identical—in—substance procedures,
that often include language
added to the original federal text.
The TU rule is just one
example of such a rule.
Section 7.2(a)(3)
itself requires this
by mandating that where U.S. EPA “prescribes the contents of a
State regulation without setting forth the regulation itself”,
the Board must adopt a regulation “as prescribed to the extent
possible”, consistent with the federal program and Illinois law.
In the present instance, U.S. EPA set forth the TU regulation and
the standard for TU designation, but the federal standard does
not comport with Illinois law.
Thus,
U.S. EPA essentially set
forth the content of the regulation without setting forth a
segment necessary under Illinois law.
Thus, by adding the
language to lend definiteness required by Illinois law to the
federal decisional standard, for the purposes of Agency permit
decisions, the Board essentially specified a decision to be made
by the Agency based upon the general division of functions within
the Environmental Protection Act, as required by Section
7.2(a) (5).
Further, the Section 28.2 “federally-required” rulemaking
procedure is not designed for the RCRA program.
It is
appropriate where U.S. EPA has imposed a very broad mandate that
the state adopt a program that accomplishes a certain result, but
U.S. EPA does not specify the regulations to be included in the
program with ~j~yspecificity whatsoever.
An example is the area
of water quality and wastewater effluent regulation.
Federal law
very broadly requires the state to designate stream use
designations and water quality standards and wastewater effluent
limitations to maintain the use of those streams within the
state.
However, U.S. EPA nowhere sets forth any of the water
quality designations or effluent limitations necessary to
9
accomplish this goal.2
(~
R90-1, Water Toxics.)
The Section 28.2 procedures would further result in
additional delay and expense for the state, contrary to the
intent of Section 7.2.
Section 28.2 procedures require that the
Board receive a proposal for public comment from the Agency
together with a certification that the regulations are federally
required.
The Board must conduct public hearings on the proposal
and submit the proposed rules for Second Notice review by JCAR
prior to adoption.
In the interim, the segments adopted by
Section 7.2 procedures would become adopted as
a fragmentary and
potentially fatally deficient rule.
(In this instance, the Board
would adopt the TU rule with the “protective of human health and
the environment” standard, and follow later under Section 28.2
with the Granite City Steel-required limiting language.)
Rather, the Board believes that Section 7.2(a)(3)
contemplates that the Board will occasionally need to conform the
content of federal regulations to the Illinois system before
adopting them as identical-in-substance regulations.
This
subsection limits the Board to Section 282 procedures only where
U.S. EPA broadly outlines a general duty and the state must
derive the actual requirements.
In such a context of a sweeping
outline—type mandate, the Board’s discretion is broader and the
requirements for public hearings and prior
JCAR
review are
constructive.
In the context of the
RCRA
Subtitle C identical-
in—substance program (and other,
similar programs like RCRA
Subtitle D, SDWA, Wastewater Pretreatment, the Definition of VON,
etc.), where U.S. EPA promulgates detailed regulations that set
forth the entirety of the regulatory requirements, and the
Board’s discretion is very limited, the Board believes that a
pre-adoption opportunity for public comment and a formal post-
adoption review by
JCAR
are sufficient.3
2
This provision was originally intended to provide for
expedited consideration of rules proposed by the Agency certified
as “federally-required” by U.S. EPA under the federal Clean Air
Act.
The Board has adopted regulations designated as federally-
required under the Clean Air Act and Clean Water Act under this
provision.
However,
a more recent amendment to the Act added
Section 28.5 “fast—track” procedures, an even more expedited
process now used for Clean Air Act proceedings.
~
We highlight our record of taking the initiative in
introducing the issues in these proceedings to public discussion
and of responding to every public comment recieved.
Often our
response has been to revise the text of the amendments prior to
adoption.
We also underscore the importance of receiving these
public comments in these proceedings.
This is especially true of
the pre-adoption comments informally submitted by JCAR in the
10
Thus, the Board believes that conforming the text of federal
requirements to the Illinois system is within the scope of our
Sections 7.2 and 22.4(a) mandates.
We believe that this is true
even where, as here,
the Board must embellish the wording of a
federal requirement to achieve conformity.
We believe that
combined use of Sections 7.2 and 28.2 would violate that mandate
and prove counter—productive.
DETAILED DISCUSSION
General Revisions
The Board will begin to change our method of referring to
the United States Environmental Protection Agency in this present
ru~lemaking. We have begun to refer to “U.S.
EPA”, which we
believe is more conventional than “USEPA” and clearer that “EPA”.
Thus,
since segments of the used oil regulations refer to both a
“U.S. EPA identification
number”
and an “Illinois special waste
identification
number”,
we use these labels for distinction.
We
further have begun to refer to the “U.S. EPA hazardous waste
number”
for similar clarity.
This changed usage occurs only in
the Sections opened in this proceeding,
and we will continue this
conversion in future rulemakings as additional Sections otherwise
become open to amendment.
Therefore, the critical definitions
in
Sections 702.110 and 720.110 that use “EPA” or “USEPA” as part of
the defined term, such as “EPA”,
“EPA hazardous waste number”,
and “EPA identification number”, will retain the former
designations in parallel to added references to “U.S.
EPA”.
These amendments appear in the existing text of Sections 702.110,
720.110,
721.104,
721.105,
728.102, 739.110, and 739.152.
As mentioned earlier, the Board is making a
number
of
corrections to the text of the amendments as proposed as we adopt
them.
These amendments are centrally outlined at the end of this
detailed discussion.
Where appropriate, however, the Board
mentions significant substantive revisions in the Section—by—
Section discussions that follow.
Classifications of Permit Modifications-—Section 703.Appendix A
U.S. EPA amended 40 CFR 270.42 Appendix I, from which 35
Ill.
Adm.
Code 703.Appendix A derives, at 58 Fed. Reg. 8685
(Feb.
16,
1993), as part of the corrective action management unit
(CANU)
and temporary unit
(PU) rules.
The amendments deem the
approval of a
CANU
a Class
3 permit modification and of a TU a
Class
2 permit modification.
more recent proceedings.
Pre—adoption corrections and
clarifications are more rapidly and readily accomplished than
those made after final adoption and filing with the Secretary of
State.
11
The Board has incorporated the federal amendments without
substantive deviation as N.
We corrected a few omissions from
the text of the pre-existing U.S. EPA base
text
and made two
routine amendments.
The Board has interpreted
“*“
and ‘“‘~“inthe
federal rules as the same as
“
and added the
“*“
notation in
its place to the entries for items B(1) (b), F(4) (b), G(1) (e), and
G(5) (c).
We moved the meaning of the
“*“
notation from after
item A(S) (a)
to the very end of the Appendix, but before the
final Board Note.
Since U.S. EPA applied the
“i”
notation to the
Class
2 modification of item C(4), we deleted the federal “Class
1 modifications” limitation from the language.
Further, we added
the notes relating to a change in facility plans and 40 CFR
270.42
(35 Ill.
Adin.
Code 703.280(g)) that appear in the federal
text to the ends of the B,
G, and H entries.
As to the routine
amendments, we updated the Board Note at the end of the Section,
to indicate the amended source, and we changed
“+/—“
to the
scientific
symbol
“±“,
at item G.3.
With prior word processing
systems, the Board’s ability to reproduce technical symbols was
limited,
so we made substitutions using common keyboard
characters.
However, our modern word processing equipment allows
us to use these commonly understood technical symbols as they
appear in the federal base text.
In
PC
1,
U.S.
EPA
comments
that the Board omitted certain
language
in
R93—4,
which
U.S.
EPA
added
to
40
CFR
270.42,
Appendix I,
at 58 Fed. Reg.
29887
(Nay 24,
1993).
U.S. EPA
amended this provision by renumbering item B(1)(c) to B(1)(d),
removing the second item B(1) (b)
(U.S. EPA previously had two
identical item B(1)(b)
entries), and adding new language for item
B(1)
(C).
The
Board made the necessary changes relating to items
B(1)(c)
and B(1)(d)
in corresponding Section 703.Appendix A in
this proceeding.
However,
since the duplicate entry for item
B(1) (b) never appeared in the Illinois regulations, no change was
necessary to that item.
The Board invited public comment on our
approach to this Section and received none.
We interpret silence
as tacit acceptance of our chosen approach.
Definitions——Sections 702.110.
720.110. 728.102
& 739.100
Section 702.110 derives from 40 CFR 270.2, the definitions
provision applicable to the permitting rules.
U.S. EPA amended
section
270.2
at
58
Fed.
Reg.
8685
(Feb.
16,
1993),
as
part
of
the
CANTJ
rules amendments.
U.S. EPA added a definition of
“corrective action management unit” and amended the definition of
“disposal facility”.
Section 720.110 is the general definitions provision for the
entire RCRA Subtitle C regulatory program.
It derives directly
from
40
CFR
260.10,
which
U.S.
EPA
amended
at
58
Fed.
Reg.
8683
by
adding
a
definitions
of
“corrective
action
management
unit”
and “remediation waste” and amending the definitions of “disposal
12
facility”,
“facility”,
“landfill”, and “miscellaneous unit”.
Section 728.102 includes the definitions specific to the
land disposal restrictions.
It derives from 40 CFR 268.2.
U.S.
EPA amended the section 268.2(c) definition of “land disposal” at
58 Fed. Reg.
8685.
The Board adopts the federal language of the new definitions
of
“CANU”
and “remediation waste” and the amended definitions of
“disposal facility”,
“facility”,
“landfill”,
and “miscellaneous
unit”
in Sections 702.110, 720.110, and 728.102 with only minimal
deviation from the federal text.
The definitions of “CANU” and
“disposal facility” are identical in Sections 702.110 and
720.110.
As amended, the definitions of “disposal unit”
(in
Sections 702.110 and 720.110),
“land disposal”
(in Section
728.102),
“landfill”
(in Section 720.110) and “miscellaneous
unit”
(in Section 720.110) now exclude CANUs.
The definition of
“facility”
(in Section 720.110) now expressly includes all
contiguous property for which a permit is sought where corrective
action is involved.
The Board does deviate slightly from the exact language of
the federal amendments in some slight ways.
We changed “Regional
Administrator”
in the definition of “CAMU” to “Agency”, as is our
customary practice.
We added a Board Note to the definitions of
“CANU” to indicate that members of the regulated community must
also obtain U.S. EPA approval of a
CANU
until U.S. EPA authorizes
the corresponding Illinois regulations.
The
CANU
rules are HSWA-
derived, as is noted at new Section 724.652.
Hence,
the federal
regulations took effect in Illinois on April 19,
1993.
(~
40
CFR 271.1 Table
1,
as amended at 58 Fed. Reg. 8685
(Feb.
16,
1993).)
We also added a parenthetical to the definitions that
refer to a “corrective action management unit” that indicates the
abbreviation “CANU”.
In the definition of “remediation waste” we
use “that” as the preferred usage for a restrictive relative
clause, reserving “which” for non—restrictive relative clauses,
for restrictive relative clauses that begin with a preposition,
and for subsequent restrictive relative clauses in the same
sentences.
In the Section 720.110 definition of “landfill”,
the
Board adds “a salt bed formation”,
originally included by U.S.
EPA at 52 Fed. Reg. 46963
(Dec.
10,
1987), but omitted by the
Board until now.
Similarly,
in amending the definition of
“facility”, we add commas for clarity; these were included in the
original by U.S. EPA, but previously omitted by the Board.
The definitions of Section 739.100 relate to the used oil
management standards of Part 739.
They derive from 40 CFR 279.1,
which U.S. EPA amended at 58 Fed. Reg. 26425,
as part of its
corrective amendments.
U.S. EPA corrected a misspelling of “if”
to “is” in the definition of “used oil”.
The Board adopts the
federal amendment without deviation.
We invited public comment
on our approach to the four definitions Sections and the only
13
input received was informal comment from
JCAR.
JCAR
suggested
that we should have a single definition for “Environmental
Protection Agency”,
“EPA”, and “U.S.
EPA”
JCAR
also suggested
that we correct all citations to the Illinois Compiled Statutes
where we cite an entire statute, thus dropping the “et seq.”
usage.
We accepted these suggestion and made changes accord-
ingly.
As to all other aspects of the proposal, we interpret
silence as tacit acceptance of our chosen approach.
Exclusions from the Definition of Solid Waste-—Section 721. 104
Section 721.104 derives from 40 CFR 261.4, which U.S. EPA
amended at 58 Fed. Reg.
26424
(May 3,
1993), as part of the used
oil corrections.
U.S. EPA deleted paragraphs
(b) (13) and
(b) (14), formerly reserved; renumbered paragraph
(b) (15) to
(b) (13); and added a new paragraph
(b) (14).
New federal
paragraph
(b) (14) now excludes used oil re—refining distillation
bottoms that are used as feedstock in asphalt manufacture from
the definition of solid waste.
The Board adopts the federal
language without change.
We invited public comment on our
approach to this Section and received none.
We interpret silence
as tacit acceptance of our chosen approach.
Oualifled Small Ouantity Generator Exclusion from Recrulation—-
Section 721.105
U.S. EPA amended 40 CFR 261.5(j)
as part of the used oil
corrective amendments,
at 58 Fed. Reg. 26424
(Nay 3,
1993).
This
corresponds with Section 721.105(j) of the Illinois regulations.
Formerly, hazardous wastes from a small quantity generator that
were mixed with used oil and destined for burning for energy
recovery were subjected to subpart G of part 279
(35 Ill. Adm.
Code 739.Subpart G).
The corrective amendment of this paragraph
subjects those mixed wastes to the whole of part 279
(Part 739).
The Board adopts the federal amendment without change.
We
invited public comment on our amendment to this Section and
received none.
We interpret silence as tacit acceptance of our
chosen approach.
ApplicabilitY of Treatment,
Storage. and Disposal Facility
(TISID)
Standards——Section 724.101
Section 724.101 derives from 40 CFR 264.1, which U.S. EPA
amended at 58 Fed.
Reg. 26424
(May 3,
1993), as part of the used
oil management amendments.
U.S. EPA amended paragraph
(g) (2)
so
that recycling facilities managing used oil that is a hazardous
waste solely because it
exhibits
a characteristic of hazardous
waste are not subjected to the T/S/D standards of federal part
264
(Illinois Part 724).
U.S. EPA accomplished this by adding a
reference to 40 CFR 261.6(a)(4)
(corresponding with 35 Ill.
Adin.
Code 721.106(a) (4)) and to the alternative standards of federal
part 279
(Illinois Part 739).
The Board adopted the federal
14
amendments without revision.
However,
in doing so, we note that the former Illinois
subsection
(f) (2) corresponded with federal paragraph
(g) (2).
This was because the Board never adopted a counterpart to federal
subsection
(f).
We did so because federal subsection
(f)
outlined the applicability of the federal T/S/D standards in
authorized states.
Thus, this provision was not a necessary
element of the Illinois program.
In order to maintain linear
structural parity with the federal regulation, the Board has now
adopted “filler” language as subsection
(f) that explains the
scope of the corresponding federal provision,
and we have
renumbered former subsection
(f) to subsection
(g).
We invited
public comment on our amendments to Section 724.101 and received
none.
We interpret silence as tacit acceptance of our chosen
approach.
Relationship of
CAMU
Rules with Interim Status and Permitted
Facility T/S/D Requirements——Sections 724.103, 724.201
& 725.101
U.S. EPA amended 40 CFR 264.3 and 264.101(b)
at 58 Fed. Reg.
8683
(Feb.
16,
1993) and 40 CFR 265.1(b) at 58 Fed.
Reg. 8685,
as
part of the
CAMU
rules.
The amendments essentially make the
applicability of the corrective action provisions of part 264,
subpart S
(35 Ill.
Adm.
Code 724.Subpart
S)
applicable to interim
status facilities and to corrective actions.
The Board adopted
the federal amendments without revision.
We do this noting that
U.S. EPA references subpart S in section 264.3 and sections
264.552 and 264.553 in section 265.101(b).
This presents no
problem at this time,
since 40 CFR 264, subpart S includes only
those two sections at this time, but if U.S. EPA intends further
generally applicable additions to subpart S, this disparity might
present problems.
In addition to adopting the federal
amendments, the Board has corrected the formerly improper and
incomplete use of an “m” dash in Section 724.103 and restored the
phrase “in accordance with this Section in Section 724.201(b).
We invited public comment on our approach to this Section and
received none.
We interpret silence as tacit acceptance of our
chosen approach.
Relationship of Used Oil Rules with Interim Status and Permitted
Facility T/S/D Requirements——Sections 724.101 & 725.101
U.S. EPA amended 40 CFR 264.1(g) (2) and 265.1(c) (6)
at 58
Fed. Reg.
26424
(May 3,
1993)
as part of the used oil corrections
and technical amendments.
In the original used oil regulations,
U.S. EPA added an exclusion at 40 CFR 261.6(a) (4) from the
applicability of parts 260 through 268 for certain used oil that
is recycled.
However,
U.S. EPA did not reference this exclusion
in the applicability statements of parts 264 and 265.
It further
did not expressly reference the applicable requirements of new
part 279.
The corrections add these references to both
15
applicability sections 264.1(g) (2) and 264(c)(6).
The Board has
adopted the federal language without revision.
We invited public
comment on our approach to this Section and received none.
We
interpret silence as tacit acceptance of our chosen approach.
CANU
and TU Reauirements——Sections 724.652 and 724.653
U.S. EPA added 40 CFR 264, subpart S at 58 Fed. Reg. 8683—84
(Feb.
16,
1993).
These two new sections, 264.552 and 264.553,
set forth the basic requirements for corrective action management
units
(CANUs)
and temporary units
(TUs),
respectively.
Section
264.552
sets forth the requirements for what can constitute a
CANTJ, the procedure for designation of a CANU, the T/S/D
standards that continue to apply to a CAMU,
and the CAMU-specific
groundwater monitoring and closure and post—closure care for a
CANIJ.
Similarly,
Section 724.553 sets forth the approval of
alternative management requirements for a temporary unit.
Whereas the
CANU
provision sets forth general standards for
management of the CANU, the TU provision is somewhat more
flexible;
it allows the U.S. EPA Regional Administrator to
establish “alternative requirements” applicable to the TU.
The
federal provision sets forth the standard for granting TU status:
that the alternative standards
“are protective of human health
and the environment”.
It also lists a number of factors for
consideration in granting (and extending) TU status.
Adapting
this provision to the Illinois regulatory scheme presents a
challenge.
The Board must codify standards for Agency determination for
the PU determination before the Agency can make them by way of
permit decision.
The Act authorizes the Agency to make all
permit decisions, and it reserves in the Board the authority to
make variance and adjusted standards determinations.
The Agency
must act pursuant to standards established by the Board, but it
allows the Agency to employ those standards to derive permit
limitations.
See Granite City Division of National Steel Co.
v.
~
(Apr.
15,
1993),
155 Ill. 2d 149,
613 N.E.2d 719.
This would
mean that in the absence of standards for Agency decisionmaking,
the TU determination would be reserved to the Board as a variance
or adjusted standard decision.
However, infusing these
procedures into PU determinations would lose the very quick
flexibility U.S. EPA seems to intend in this provision.
It would appear that U.S. EPA intended the PU determination
as a permit decision based on the parallel amendments to 40 CFR
270.42, Appendix I, discussed above,
in which U.S. EPA designates
this a Class
2 permit modification.
However, the “protective of
human health and the environment” standard is too nebulous.
A
couple of options are available, and the Board prefers the one
that we have codified.
On the one hand, we could reserve the
determination to the Board,
similar to the solid waste
16
determination and hazardous waste delisting decisions are
reserved under 35 Ill. Adm. Code 720.Subpart C.
As already
mentioned, this could defeat part of the purpose behind the
federal provision.
On the other hand, the Board could devise a
standard for permit issuance, thus,
vesting the decision in the
Agency.
This is the preferred approach taken.
To add the necessary definiteness to the U.S. EPA standard
for TU designation, we use the very standards of Parts 724 and
725 from which the alternative requirements are sought.
We
render the federal language thus
(with deviations from the
federal language underlined):
For temporary
tanks
and container storage areas used
for treatment or storage of hazardous remediation
wastes, during remedial activities required under
Section 724.201 or
RCRA
section 3008(h), the A~encv
shall establish alternative requirements pursuant to
this Section if it determine~that a design,
operating,
or closure standard applicable to such units may be
replaced by alternative requirements that jg e~allv as
protective of human health and the environment as would
be the standards of this Part or of 35 Ill. Adm. Code
725
if applied.
We believe that if this is not what U.S. EPA actually intended,
it is at least as stringent as the federal standard.
The Board
believes that the deviations from the federal base text are
acceptable under the Act--especially in light of the federally-
enumerated factors for Agency determination in Subsection
(c).
We believe that by outlining standards for Agency
determination pursuant to Section 39 of the Act, the Board has
properly made this a permit decision charged to the Agency,
rather than a variance or adjusted standard decision reserved to
the Board.
We believe this is especially true in light of the
fact that the Agency’s permit decision is subject to Board review
under Section 40 of the Act.
Thus, we believe that the Board has
adequately addressed the requirements outlined by the supreme
court in Granite City Steel.
Aside from the above-described additions to the federal text
at Section 724.653(a)
and
(C),
the Board has adopted the federal
language of these Sections with minimal deviation.
For enhanced
clarity in the language, the Board added a subsection heading to
Section 724.652(b); reworded the opening of Section
724.652(b) (2); added “factors” to Section 724.652(c); added or
omitted punctuation from Sections 724.652(b) (1) (B),
(c) (3),
(c)(4),
(e),
(e)(2), and (e)(4)(B) and 724.653(e); used singular
pronouns in Section 724.652(b) (1) and
(c) (4); substituted “or”
for
“/“
and “standards” for “criteria” at Section 724.652(d);
substituted “groundwater” for “ground water” as Section
17
724.652(e) (3); added the definite article to segments of Sections
724.652(e) (4) (B) and (e)(4)(C) and 724.653(c); substituted “that”
for “which” at Sections 724.652(e) (4) (C) (ii) and 724.653(c) (6);
and reworded Section 724
.
653 (d).
Since U.S. EPA promulgated the
CANU
rules pursuant to HSWA,
the federal rules are immediately effective in Illinois.
After
U.S. EPA has authorized the Illinois
CANU
rules, the Illinois
rules will become primary.
Until then,
compliance with the
federal
(and Illinois) rules is required of facilities in
Illinois.
For the convenience of the regulated community, the
Board has added Board Notes to both Sections 724.652 and 724.653
to indicate the need to obtain federal authorization of a
CANU
or
PU.
We invited comment on our approach to the
CANU
rules,
especially with regard to our rendering the TU determination an
Agency permit decision subject to challenge before the Board.
As
already discussed, JCAR informally questioned the Board’s
authority to add to the federal language of the TU rule.
We
received no additional comments.
We interpret silence as tacit
acceptance of our chosen approach.
Treatment Standards for Icmitable and Corrosive Wastes——Section
728.109
On May 24,
1993, U.S. EPA amended 40 CFR 268.9,
at 58 Fed.
Reg. 29885,
in response to the remand in Chemical Waste
Management
v.
EPA, 976 F.2d
2
(D.C.
Cir.
1992).
As discussed
above, the Board dealt with these amendments promptly,
in docket
R93-4.
PC 1 highlights the omission of several words from the
added federal language.
We add the missing words without
deviation from the federal text.
We invited public comments on
the restoration of the missing language and received none.
We
interpret silence as tacit acceptance of our chosen approach.
Renewal of Case—by—Case Capacity Variance for Hazardous Debris
from the Land Disposal Restrictions——Section 728.135
U.S. EPA amended 40 CFR 268.35(e) at 58
Fed. Reg. 28510
(May
14,
1993).
By these amendments,
U.S. EPA extended for one year,
from May 8,
1993 through May 8,
1994, the case—by—case capacity
variance for certain hazardous debris originally granted at 57
Fed.
Reg.
20766
(May 15,
1992)
(involved in R92—10).
In
extending the variance, U.S. EPA added conditions.
These include
a “good—faith” requirement that the waste generator attempt to
locate treatment capacity for the debris.
U.S. EPA required the
generators wishing to avail themselves of the variance to have
filed a report by the later of August 12,
1993 or 90 days after
generation of the waste.
U.S. EPA also added a definition of
debris.
In adapting the text of the federal amendments to Section
728.135, the Board made only minor modifications.
We
18
repunctuated subsections
(e) (1),
(e) (2), and
(e) (5) (B); added
“those two” to subsection
(e) (3); and added “or” to subsection
(e) (5) (B) (vii) for clarity.
As is our usual custom, the Board
omitted the past effective date from subsection
(e) (3).
On the other hand, the Board found it necessary to retain
the federal August 12,
1993 due date, even though it is past and
would have the appearance of retroactive application, because
this is a HSWA—driven provision.
The federal variance amendments
became effective in Illinois on May 8,
1993.
That means that,
effective May 8, 1993, all Illinois facilities wishing to take
advantage of the federal variance were to have submitted the
necessary documentation by August 12.
That means that even
though the variance will not become effective until long after
August 12,
1993, those wishing to use it must have made the
appropriate federal submissions before that date.
If the Board
were to change this past date,
it would render the Illinois
regulations less stringent than the federal rules by allowing
later submissions of documentation.
We invited comments on our
codification of the federal case—by—case variance extension,
especially on our handling of the August 12,
1993 federal
deadline.
JCAR informally asked about our retention of the
August 12,
1993 date while deleting the May
8,
1993 date.
The
explanation that,
as a matter of federal law,
some action was
required by the facility owner or operator by the August date in
order to qualify for the exemption seemed to satisfy JCAR’s
concerns.
U.S. EPA forwarded a minor correction in PC 3.
We
interpret the lack of additional comments as to the merits of the
chosen approach as tacit acceptance of that approach.
Corrections to the Used Oil Regulations--Part 739
U.S. EPA adopted
a multitude of mostly minor corrections and
amendments to the used oil recycling regulations at 58 Fed. Reg.
26425-26 (May 3, 1993).
U.S. EPA reversed those amendments with
regard to four sections at 58 Fed. Reg. 33341
(June 17,
1993).
The provisions involved included 40 CFR 279.1,
279.10 through
279.12,
279.21 through 279.23,
279.40, 279.42,
279.45,
279.51,
279.52,
279.54,
279.60,
279.62,
279.64,
279.70, and 279.72
through 279.74.
These changes are summarized as follows:
279.1:
corrected misspelling in definition of “used oil”
279.10(b)(2):
added exclusion of a mixture of used oil and
Subpart D listed waste from Part 279, where the mixture
still exhibits the characteristic for which it was listed;
added exclusion from Part 279 of the above mixtures that do
not exhibit the characteristic but which are ignitable
279.10(c):
added exclusion of used oil—containing or
contaminated materials from which the used oil was drained
from Part 279 unless the materials are burned for energy
19
recovery
279.10(e) (4):
added exclusion from Part 279 of re—refining
distillation bottoms that are used as feedstock in asphalt
manufacture
279.10(i):
added express cross—reference to TSCA requirements
for marketers and burners of PCB—contaminated used oils
279.11:
added express cross—reference to TSCA requirements for
PCB-contaminated used oils
279.12(c)(3):
added RCRA Subtitle C-regulated hazardous waste
incinerators to list of facilities that can burn off—
specification used oil
279.21(a):
deleted outright prohibition against mixing used oil
with hazardous waste in favor of regulation according to
general applicability of Part 279
279.22:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279
279.23:
deleted reserved subsection and reformatting of section
279.40(a) (4):
reworded exclusion from regulation for
transportation of used oil from household do—it—yourselfers
to a regulated facility
279.40(d)(4):
removed nonsense phrase
279.42(a):
changed a requirement for notification of activities
into a requirement for renotification; U.S. EPA later
rescinded the change
279.42(b) (1):
changed reference to obtaining EPA notification
form
279.43(b):
broadened reference to duty to comply with U.S
•
DOT
requirements
279.45:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to “generator” with “transporter”
279.45(d) (1)
(iiil:
added allowance of equivalent secondary
containment systems for containers of used oil at transfer
stations
279.51(a):
changed a requirement for notification of activities
into a requirement for renotification; U.S. EPA later
rescinded the change
20
279.52(b)
(6) (viii)
(C):
corrected
cross—reference
279.54:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to “generator” with “processors/re—refiners”
279.54(a):
removed a restriction limiting processing to RCRA
Subtitle C—regulated tanks, containers,
or units
279.54(c)(1)(iii):
added allowance of equivalent secondary
containment systems for containers of used oil at processing
and re-refining facilities
279.60(b) (1):
corrected grammar
279.62(a)fl~I: added a requirement for renotification to a
requirement for notification of activities; U.S. EPA later
rescinded the change
279.64:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to
“generator”
with
“burners”
279.72(a):
removed exclusion from regulation for used oil burned
for energy recovery that meets the fuel specifications
provision (in which it is still excluded from regulation)
279.73(a):
added a requirement for renotification to a
requirement for notification of activities; U.S. EPA later
rescinded the change
279.74 (a):
replaced reference to “generator” with “marketer”
The Board has primarily adopted the federal base text with
minimal change.
The most significant change from the federal
text in the proposal for public comment was in the U.S. EPA
notification requirements of 40 CFR 279.42(a) and 279.51(a).
The
Board retained the notification requirement for those who have
not yet notified, which U.S. EPA had dropped in its amendments.
In both provisions,
U.S. EPA would have required those used oil
transporters and used oil processors that have notified of their
activities to renotify.
U.S. EPA had dropped the requirement
that those that have not notified must do so.
We note that in
section 279.62(a), relating to used oil burners, and section
279.73(a), relating to used oil marketers, U.S. EPA retained the
initial notification requirement while adding a renotification
requirement.
We believed that U.S. EPA intended both the initial
notification and renotification requirements to apply to used oil
transporters and used oil processors, so we retained the initial
notification requirements at Sections 739.142(a)
and 739.151(a)
in the proposal for public comment.
The June 17,
1993 federal
action reversed this action, restoring the original requirement
21
relating to notification by those who had not yet notified-—
thereby dropping the renotification requirement.
The adopted
version of the amendments follows this federal lead.
Another,
less significant modification is making the federal
requirements more consistent by conforming all requirements to
the singular case and adding articles in Sections 739.110(b),
(c), and (i); 739.142(a);
739.143(b); 739.145; 739.151(a);
739.154; 739.162(a);
739.164; and 739.173(a) and
(b).
The Board
added definite articles to Sections 739.142(b) (1) (B),
739.151(b) (1) (B), 739.152(b) (6) (I),
739.162(b) (2), and
739.173(b)(2).
We also subdivided Section 739.152(b) (6) (H) and
(b) (6) (I) for greater clarity, replaced a reference erroneously
retained in R93-4 to the Regional Administrator with a reference
to the Agency, and added “all other”
in subsection
(b)(6)(H)(iii).
Finally,
in Section 739.174(a), the Board used
“used oil fuel marketer” for greater clarity.
The Board has further made a number of non—substantive
stylistic changes in the text.
As per our usual practice usage
for affirmative requirements, we substituted “shall” for “must”
in both the existing and added language of numerous Sections.
We
similarly used “that” instead of “who”, except where the object
was clearly a natural person.
This meant opening Section 739.141
for the sole purpose of amending the Section heading.
As
explained above, the Board also rendered references to the
federal agency as “U.S. EPA” for enhanced distinction from the
Agency
(also called EPA or IEPA by the regulated community).
We
similarly used “U.S. DOT” and U.S. Department of Transportation”
in Section 739
•
143 (b).
Where we encountered
“/“
in the text of
the federal amendments, we used “or” in Section 739.151(a).
Aside from the above non—substantive revisions, we have
restored segments of text that appeared in the proposal for
public comment in R93-4 that we erroneously dropped from the
adopted rule.
The segments of text restored all pertain to the
need to obtain and the mechanics of obtaining a U.S. EPA
identification number.
The need to obtain such a number from
U.S. EPA derives directly from Section 3010 of RCRA.
(42 U.S.C.
§ 6930.)
The restored
segments
of text are at Sections 739.124,
739.142, 739.143, 739.146,
739.151, 739.156 through 739.158,
739.162, 739.165, 739.171,
739.173,
739.174.
In the course of adapting the federal rules to the Illinois
system in R93—4, the Board considered comments as to whether we
should subject used oil transporters to the Illinois special
waste transportation provisions.
We concluded that we should and
added the appropriate references to Illinois special waste
identification numbers.
In adding these references, we deleted
nearly every reference to U.S.
EPA identification numbers
obtained through
RCRA
Section
3010 notification without
discussion of the deletion.
As with all other aspects of state-
22
administered
RCRA
Subtitle C regulation,
U.S. EPA notification
pursuant
to
Section
3010
is
a
necessary
prerequisite
to
Subtitle
C
activities.
Therefore,
the
Board
believes that Section 3010
notification
is
required
whenever
U.S.
EPA
requires
it, without
regard to any ancillary state notifications.
We now correct this
error in assembling the text of the adopted rules.
In adding references to the Illinois special waste
regulations, the Board categorically referred to the “Illinois
special
waste
identification
number”.
We
intend
to
retain
this
usage,
but
we
wish
to
explain
its
intended
meaning
more
fully
at
this
time.
The
Illinois
EPA
is
authorized
to
grant
permits
to
special waste haulers and T/S/D facilities.
(Sections 21(d),
22.2(1),
22.10
&
22.11
of
the
Act;
~gg
35
Ill.
Adm.
Code
807.
Subpart
B,
809.
Subpart B
&
812.101.)
The
Board
is
aware
that
the
Agency
and
regulated
community
refer
to
the
identification
numbers
issued
to
transporters
as
special
waste
hauler
identification
or
license
numbers.
Those
issued to T/S/D
facilities
are
called
“IEPA
facility identification numbers”, and
those
issued
to
generators
are
called “IEPA generator
identification
numbers”.
In
using
“Illinois
special
waste
identification
number”,
the Board intends each of these meanings,
as
appropriate
in
the
context.
In
correcting
the
federal
notification requirements, we have
made
additional
corrections
to
the
Illinois
special
waste
notification
requirements.
While
it
is
correct
that
special
waste
haulers
must
notify
the
Agency
pursuant
to
Part
809,
this
is
not
true
of
processors
or
re—refiners.
We have replaced the
reference
“pursuant
to
35
Ill.
Adm.
Code
809”
with the address
and
telephone
number
of
the
Agency,
Division of Land Pollution
Control
at
Section
739.151(b)(2).
Similarly,
even where there
was
no
such
reference
with
regard
to
used
oil
burners
and
used
oil
fuel
marketers,
the
Board
has
added
the
Agency
address
at
Sections
739.162(c)
and
739.173(c).
The
Board
invited
public
comments
on
our
approach to the used and waste oil regulations,
especially
with
regard
to
the
restoration
of
the
U.S.
EPA
notification
requirements,
our
handling
of
the
Illinois
special
waste
identification
numbers,
and
our
references
to
Agency
special
waste
notification.
The
only
comments
we
received
were
a
listing
of
minor
corrections
by
U.S.
EPA
in
PC
3.
We
interprL.t
silence
as
to
the
substance
of
our
approach
as
tacit
acceptance
of
that
approach.
Revisions
of
Amendments
as
Originally Proposed
The
differences
between
the
proposed
and
adopted
versions
of
the
amendments
are
summarized
in
tabular
form
as
follows
(source
of
changes
denoted
by
superscript,
S
=
Secretary
of
State,
J
=
JCAR,
U
=
U. S.
EPA,
and
B
=
Board):
Section/Location~~
Chance (Explanation)
23
702.110 “component”8
corrected misspelling in
definition of “component”
702.110 “Environmental
centralized definitions of
Protection Agency”,
“EPA”
&
“EPA” and “U.S.
EPA” into
“U.S.
EPA”3
single definition of “Environ-
mental Protection Agency”
702.110 “Environmental Pro-
corrected ILCS cite
tection Act”3
702.110 Board Note
(end)S
corrected volume number in
Federal
Register
citation
703.App. A
(F.1.c.,
F.4.a.,
corrected spacing after periods
F.4.b.,
G.1.e., G.5.c.,
G.5.d.,
H.5.c., H.5.d.,
I.,
J.6.c, J.6.d., L.3.,
L.4.
& L.5.a.)B
703.App. A
(F.2.)B
added heading not in federal
original for clarity
720. Main Source Note’
added missing references and
citations for prior amendments
in R91—1, R91—13, and R92—1
720.110 “boiler”, “closed por—
corrected spacing after period
tion”,
“corrosion expert”, “ex-
isting hazardous waste manage-
ment facility”, “hazardous
waste management unit”, “inac-
tive portion”,
“individual
generation
site”,
“Injection
well”,
“landfill cell”,
“Leak—
detection system”,
“new hazard-
ous waste management facility”,
“new tank system”,
“on—site”,
“Partial closure”,
“point
source”,
“qualified groundwater
scientist” Board Note, “re-
placement unit”,
“thermal
treatment”,
“totally enclosed
treatment facility”,
“transport
vehicle”,
“treatability study”
& “underground injection”8
720.110 “disposal facilitytIS
underlined new language not
previously underlined
720.110 “on—site”8
improper capitalization cor—
24
rected
720.110 “USEPA”
definition consolidated into
definition at “EPA”
721.103(a)(2)(A),
(a)(2)(B),
references to Subparts within
(a) (2) (C),
(a) (2) (D),
(a) (1) (E)
the Part corrected to standard
&
(f)’~
format, to conform with R91-13
amendments
721.103(a) (2) (A),
spacing corrected after periods
(a) (2) (D) (iv),
(c) (2) (A~
(c) (2) (B) (iii)
&
(d) (1)
721.104(a),
(a)(1)(B),
(a)(2)
spacing corrected after periods
Board Note,
(b),
(b) (7),
(b) (11)
,
(c)
,
(d) (1)
,
(e) (1)
(e) (3),
(f)
,
(f) (3)
&
(f)
(7)8
721.104 (a) (10)B
spelling corrected
721.106(a) (3) (g)B
reference to Subpart within the
Part corrected to standard
format, to conform with R91-13
amendments
724. Table of Contents8
headings for Sections 724.119,
724.324
& 724.404 added and
headings for Sections 724.322,
724.352,
724.353
&
724.402
amended to correspond to amend-
ments
in R92—1O
724.101(f)3
underlined new language not
previously underlined
724.101(g)(2)J
cross—references to above sub-
sections and Part 739 corrected
724.Subpart
Fs
Subpart heading restored
724.351(a)(1),
(a)(2),
spacing after periods corrected
(c) (1) (A) (ii),
(c) (2),
(c) (3),
(c) (3) (E)8
724.351(a) (2) (A) (ii)—
missing text omitted in R93—4
(c) (1) (A) (i)B
restored
“Section” added to heading
724.652(a)B
spacing after period corrected
25
724 .652(g)S
724.
653S
724. 653 (a)3
725.101(c) (6)8
725.243(i)8
725.543(b)(1),
(b)(2),
(g)
&
(k)8
725.543(b) (3)
&
(b) (3) (A)8
728. Table of ContentsB
728.102
“debris”, 728.107(a),
(a) (1) (A),
(a) (1) (B),
(a) (2) (A) (i)
(a) (2) (A) (ii),
(a) (3) (A)
,
(a) (3) (B)
(b) (4) (A)
,
(b) (4) (B)
,
(d) (1) (B)
&
(d) (3); 728.109(a)
&
(d) (1) (B); 728.135(a) (1),
(a) (2),
(a) (3),
(b)
,
(C)
(1)—
(c)(4),
(i)
&
(k); 728.136(a)
through
(e),
(h)
&
(i);
728.140(a),
(b)
&
(c); 728.141;
728.142(a),
(a)(1)
&
(d);
728.145(a),
(b),
(c)
&
(d)(1);
728.150
& 728.Table F(a),
(b),
(c), A.1.c.
&
C.3.B
728.107 (a)
,
(a) (1) (B),
(a) (2) (A) (ii),
(a) (3) (B),
(a) (6)—(a) (10),
(b)
,
(b) (7),
(c)(1)
&
(c)(4);
728.109(a)
&
(d) (1) (B) ; 728.135(k);
728.140(a); 728.142(a)(3),
(b)
&
(d); 728.Table A
(all gener-
ally); 728.Table B
(all gener-
ally)
& 728.Table D
(all gener-
ally)~
“of this chapter” reference
deleted
“Section” added to heading
“Part” capitalized
cross—references to above sub-
sections and Part 739 corrected
subsection designation
corrected
spacing corrected after periods
misspellings corrected to cor-
respond to amendments in R92-10
Sections 728.141,
728.142 &
728.146 headings format
changed; Sections 728.Appendix
I and 728.Table H added to cor-
respond to amendments in R92-1O
stylistic changes to conform
text:
“his” changed to “its”,
“must” changed to “shall”, par-
entheses removed from plurals,
“EPA” changed to “U.S.
EPA”,
capitalization removed from
“hazardous waste number”,
“—“
and longer listings changed to
“through”,
format of cross—
references to tables, subsec-
tions and to Part 728 cor-
rected, and spacing corrected
after periods
restored amendments made in
R91-13
later omitted from text;
conformed format of later—ad’~ied
amendments to R91-13-amended
listings
(such as using “NA”,
footnote format, etc.); correct
errors in later—added listings
(such as cross—references to
other tables); corrected
federal citations
26
728.135(e) (5) (B) (i)~
739.100 “used oil transporter”,
739.152(b) (5)
Board Note8
739. 110(c)’
739.124 preamble
& Board Note &
739.142(b)
(2)S
739.140(d) (5)’
739.142(a),
739.151(a),
739.162(a)
& 739.173(a)~’
739.142(b) (1) (A)
&
739.151(b) (1) (A)8
739.142(b)
(2)8
739.151(b) (1)B
739. 174(a)
U,J
“slage”
corrected
to
“slag”
corrected spacing after periods
changed
to
follow
federal
text;
period
added~
corrected
cross—reference
format
“Part”
capitalized
later
federal
amendments
added
phone number corrected
Agency contact added parallel
to Sections 739.151(b) (2),
739.162(c)
& 739.173(c)
“who” changed to “that”
duplicate reference
to “used
oil” deleted
HISTORY OF
RCRA
Subtitle C, UST and UIC ADOPTION
The
Illinois UIC (Underground Injection Control),
RCRA
(Resource Conservation and Recovery Act) Subtitle C, and UST
(Underground
Storage
Tank)
regulations,
together
with
more
stringent state regulations particularly applicable to hazardous
waste,
include the following Parts of Title 35 of the Illinois
Administrative Code:
RCRA Subtitle C and UIC Permit Programs
RCRA Subtitle C Permit Program
UIC Permit Program
Procedures for Permit Issuance
Wastestream Authorizations
General
Identification and Listing
Generator Standards
Transporter Standards
Final TSD Standards
Interim Status TSD Standards
Specific Wastes and Management Facilities
USEPA Land Disposal Restrictions
702
703
704
705
709
720
721
722
723
724
725
726
728
27
729
Landfills:
Prohibited
Wastes
730
UIC
Operating
Requirements
731
Underground
Storage
Tanks
738
Hazardous
Waste
Injection
Restrictions
Special provisions for RCRA Subtitle C cases are included in
Parts 102,
103,
104 and 106 of the Board’s procedural rules.
History of RCRA Subtitle C and State Hazardous Waste Rules
Adoption
The Board has adopted and amended the Resource Conservation
and Recovery Act (RCRA)
Subtitle C hazardous waste rules in
several dockets.
Dockets R81-22 and R82-18 dockets dealt with
the Phase I RCRA Subtitle C regulations.
U.S. EPA granted
Illinois Phase I authorization on May 17,
1982, at 47 Fed.
Reg.
21043.
The Board adopted RCRA Subtitle C Phase II regulations in
Parts 703 and 724 in dockets R82-19 and R83-24.
U.S. EPA granted
final authorization of the Illinois RCRA Subtitle C “base
program” on January 31,
1986, at 51 Fed. Reg. 3778
(January 30,
1986).
U.S. EPA granted authorization to “Cluster I revisions”
to the Illinois program and granted partial Hazardous and Solid
Waste Amendments
(HSWA)
(Pub.
L. 98-616, Nov.
8,
1984)
authorization effective March
5,
1988,
at 53 Fed. Reg.
126
(January
5,
1988).
U.S. EPA authorized certain subsequent
amendments and granted further partial HSWA authorizations
effective April
30,
1990, at 55 Fed. Reg. 7320 (March 1,
1990),
and June 3,
1991, at 56 Fed.
Reg. 13595
(April
3,
1991).
U.S.
EPA codified its approvals of the Illinois program at 40
CFR
272.700 and 272.701 on November 13,
1989, at 54 Fed.
Reg.
37649
(Sep.
12,
1989), and on March 31,
1992,
at 57 Fed. Reg. 3731
(Jan.
31,
1992).
The entire listing of all RCRA Subtitle C
identical in substance rulemakings follows (with the period of
corresponding federal revisions indicated in parentheses):
R81—22
45 PCB 317, September 16,
1981
& February 4,
1982;
6 Ill. Reg. 4828,
April 23,
1982, effective May
17,
1982.
(5/19/80 through 10/1/81)
R82—18
51 PCB 31, January 13,
1983;
7 Ill. Reg. 2518,
March 4,
1983, effective May 17,
1982.
(11/11/81
through 6/24/82)
R82—19
53
PCB
131,
July
26,
1983,
7
Ill.
Reg.
13999,
October
28,
1983,
effective
October
2,
1983.
(11/23/81 through 10/29/82)
R83—24
55
PCB
31,
December
15,
1983,
8
Ill.
Reg.
200,
January 6,
1984, effective December 27, 1983.
(Corrections
to
R82—19)
R84—9
64
PCB
427
&
521,
June
13
&
27,
1985;
9
Ill.
Reg.
28
11964,
August
2,
1985,
effective
July
8
&
24,
1985.
(1/19/83
through
4/24/84)
R85—22
67
PCB
175,
479,
December
20,
1985
and
January
9,
1986;
10
Ill.
Reg.
968,
January
17,
1986,
effective
January
2,
1986.
(4/25/84
through
6/30/85)
R86—1
71
PCB
110,
July
11,
1986;
10
Ill.
Reg.
13998,
August
22,
1986,
effective
August
12,
1986.
(7/1/85
through
1/31/86)
R86—19
73
PCB
467,
October
23,
1986;
10
Ill.
Reg.
20630,
December
12,
1986,
effective
December
2,
1986.
(2/1/86
through
3/31/86)
R86—28
75
PCB
306,
February
5,
1987;
and
76
PCB
195,
March
5,
1987;
11
Ill.
Reg.
6017,
April
3,
1987,
effective
March
23,
1987.
Correction
at
77
PCB
235, April
16,
1987; 11 Ill. Reg.
8684, May 1,
1987, effective April 21,
1987.
(4/1/86 through
6/30/86)
R86—46
79
PCB
676,
July
16,
1987;
11
Ill.
Reg.
13435,
August
14,
1987,
effective
August
4,
1987.
(7/1/86
through
9/30/86)
R87—5
82
PCB
391,
October
15,
1987;
11
Ill.
Reg.
19280,
November
30,
1987,
effective
November
10
&
12,
1987.
(10/1/86
through
12/31/86)
R87—26
84 PCB
491,
December
3,
1987;
12
Ill.
Reg.
2450,
January
29,
1988,
effective January 15,
1988.
(1/1/87
through
6/30/87)
R87-32
Correction
to
R86-1;
81
PCB
163,
September
4,
1987;
11
Ill.
Reg.
16698,
October
16,
1987,
effective
September
30,
1987.
R87—39
90
PCB
267,
June
16,
1988;
12
Ill.
Reg.
12999,
August 12,
1988, effective July 29,
1988.
(7/1/87
through 12/31/87)
R88—16
93 PCB 513, November 17,
1988;
13 Ill. Reg.
447,
January 13,
1989, effective December 28,
1988.
(1/1/88 through 7/31/88)
R89—1
103 PCB 179, September 13,
1989;
13
Ill.
Reg.
18278,
November
27,
1989,
effective
November
13,
1989.
(8/1/88
through
12/31/88)
R89—9
109
PCB
343,
March
8,
1990;
14
Ill.
Reg.
6225,
29
April
27,
1990,
effective
April
16,
1990.
(1/1/89
through
6/30/89)
R90—2
113
PCB
131,
July
3,
1990;
14
Ill.
Reg.
14401,
September
7,
1990,
effective
August
22,
1990.
(7/1/89
through
12/31/89)
R90-11
121
PCB
97,
April
11,
1991;
corrected
at
122
PCB
305,
May
23,
1991;
corrected
at
125
PCB
117,
August
8,
1991;
uncorrected
at
125
PCB
435,
August
22,
1991;
15
Ill.
Reg.
9323,
effective
June
17,
1991.
(Third
Third
Land
Disposal
Restrictions)
(4/1/90
through
6/30/90)
R90-17
Delisting
Procedures
(See
below)
R91—1
125
PCB
119,
August
8,
1991;
15
Ill.
Reg.
14446,
effective
September
30,
1991.
(Wood
Preserving
Rules)
(7/1/90
through
12/30/90)
R91—13
132
PCB
263,
April
9,
1992;
16
Ill.
Reg.
9489,
effective
June
9,
1992.
(Boilers
and
Industrial
Furnaces
(BIFs)
Rules)
(1/1/91
through
6/30/91)
R91—26
129
PCB
235,
January
9,
1992;
16
Ill.
Reg.
2600,
effective
February
3,
1992.
(Wood
Preserving
Rules
Compliance
Dates)
R92—1
136
PCB
121,
September
17,
1992;
16
Ill.
Reg.
17636,
effective
November
6,
1992.
(7/1/91
through 12/31/91)
R92—10
138
PCB
549,
January
21,
1993;
17
Ill.
Reg.
5625,
effective
March
26,
1993.
(Leak
Detection
Systems
(LDS)
Rules)
(1/1/92
through
6/30/92)
R93—4
September
23,
1993;
17
Ill.
Reg.
20545,
effective
November
22,
1993.
(Used
Oil
Rules)
(7/1/92
through
12/31/92)
R93-16
This
docket,
Propoasl
for
public
comment,
December
17,
1993;
Notices
of
Proposed
Amendments,
18
Ill.
Reg.
337
(Jan.
14,
1994).
On
September
6,
1984,
the
Third
District
Appellate
Court
upheld
the
Board’s
actions
in
adopting
R82-19
and
R83—24.
(Commonwealth
Edison
Co.
v.
PCB,
127
Ill.
App.
3d
446;
468
N.E.2d
1339
(3d
Dist.
1984).)
The
Board
added
to
the
federal
listings
of
hazardous
waste
by
listing
dioxins
pursuant
to
Section
22.4(d)
of
the
Act:
30
R84—34
61
PCB
247,
November
21,
1984;
8
Ill.
Reg.
24562,
December 21,
1984, effective December 11,
1984.
This was repealed by R85-22, which included adoption of U.S.
EPA’s dioxin listings.
Section 22.4(d) was repealed by P.A. 85-
1048, effective January
1,
1989.
The Board has adopted U.S. EPA delistings at the request of
Amoco
and
Envirite
(the
date
of
the
corresponding
federal
action
is included in parentheses):
R85—2
69
PCB
314,
April
24,
1986;
10
Ill.
Reg.
8112,
May
16,
1986,
effective May 2,
1986.
(9/13/85)
R87—30
90 PCB 665, June 30,
1988;
12 Ill. Reg.
12070,
July
22,
1988,
effective
July
12,
1988.
(11/14/86)
R91—12
128
PCB
369,
December
19,
1991;
16
Ill.
Reg.
2155,
effective January 27,
1992.
(USX)
Subsequently, upon the April 30,
1990 federal authorization
of Illinois granting waste delistings, U.S. EPA transferred
pending
delisting
petitions
to
the
Board.
The
Board
docketed
these as site—specific rulemaking proceedings
(the name of the
petitioner waste generator appears in parentheses):
R90-18
Dismissed at 123 PCB 65, June
6, 1991.
(USX Corp,
South
Works)
R90-19
Dismissed at 116 PCB 199, November 8, 1990.
(Woodward Governor Co.)
R90—23
Dismissed
at
124
PCB
149,
July
11,
1991.
(Keystone Steel
& Wire Co.)
The Board has modified the delisting procedures to allow the
use of adjusted standards in lieu of site—specific rulemakings:
R90—17
119 PCB 181, February 28,
1991;
15 Ill. Reg.
7934,
effective May 9,
1991.
Waste
generators
have
filed
Part
106
adjusted
standards
petitions for solid waste determinations with the Board pursuant
to Section 720.130
(generator name in parentheses):
AS89—4
Dismissed at 105 PCB 269, November 15,
1989.
(Safety-Kleen Corp.)
AS89—5
Dismissed at 113 PCB 111, July 3,
1990.
(Safety—
Kleen Corp.)
31
AS9O-7
Dismissed at 124 PCB 125, July 11,
1991.
(Quantum
Chemical Co.)
The
Board
has
granted
hazardous
waste
delistings
by
way
of
adjusted standards (generator name in parentheses):
AS91—1
130 PCB 113, February 6,
1992.
(Keystone Steel
and
Wire
Co.)
AS91—3
February 4, 1993; opinion issued March 11,
1993.
(Peoria Disposal Co.)
AS93—7
February 17,
1994.
(Keystone Steel & Wire)
The Board has procedures to be followed in cases before it
involving the
RCRA
Subtitle C regulations:
R84—10
62
PCB
87,
349,
December
20,
1984
and
January
10,
1985;
9 Ill.
Reg.
1383, effective January 16,
1985.
The Board also adopted special procedures to be followed in
certain determinations under Part 106.
The Board adopted these
Part 106 special procedures in R85-22 and amended them in R86-46,
listed above.
One
Part
106
adjusted
standard
proceeding
filed
pursuant
to
728.106 sought relief from a prohibition against land disposal
(petitioner’s name in parentheses):
AS9O—6
Dismissed at 136 PCB 93, September 17,
1992.
(Marathon Petroleum Co.)
Other adjusted standard proceedings sought delayed closure
of land disposal units (petitioners’ names in parentheses):
AS9O-8
130 PCB 349, February 27,
1992.
(Olin Corp.)
AS91—4
131 PCB 43, March 11,
1992.
(Amoco Oil Co.)
Still another adjusted standard proceeding relates to
substantive physical requirements of the
RCRA
Subtitle C
regulations:
AS91-lO
Presently pending.
(Cabot Corp.)
In another regulatory proceeding, the Board has considered
granting temporary relief from the termination of an exclusion of
a hazardous waste listing in the form of an emergency rule (Peti-
tioner’s name in parentheses):
R91—11
Dismissed, August
8,
1991.
(Big River Zinc Corp.)
32
The Board has also adopted requirements limiting and
restricting the landfilling of liquid hazardous wastes, hazardous
wastes containing halogenated compounds, and hazardous wastes
generally:
R81—25
60
PCB
381,
October
25,
1984;
8
Ill.
Reg.
24124,
December 14,
1984, effective December 4,
1984.
R83—28
68
PCB
295,
February
26,
1986;
10
Ill.
Reg.
4875,
March
21,
1986,
effective
March
7,
1986.
R86—9
Emergency
regulations
adopted
at
73
PCB
427,
October
23,
1986;
10
Ill.
Reg.
19787,
November
21,
1986, effective November 5,
1986.
The Board’s action in adopting emergency regulations in P86-
9 was reversed by the First District Court of Appeals.
(Citizens
for a Better Environment v. PCB,
152 Ill. App.
3d 105,
504 N.E.2d
166
(1st Dist.
1987).)
History of UIC Rules Adoption
The Board has adopted and amended Underground Injection
Control
(UIC) regulations in several dockets to correspond with
the federal regulations.
One such docket, R82-18, was a
RCRA
Subtitle C docket.
U.S. EPA authorized the Illinois UIC program
on February 1,
1984, at 49 Fed.
Reg.
3991.
The entire listing of
all UIC rulemakings follows
(with the period of corresponding
federal revisions indicated in parentheses):
R81—32
47
PCB
93,
May
13,
1982;
6
Ill.
Reg.
12479,
October 15,
1982, effective February 1,
1984.
(7/7/81 through 11/23/81)
R82—18
51 PCB 31, January 13,
1983;
7
Ill. Reg.
2518,
March
4,
1983, effective May 17,
1982.
(11/11/Si
through 6/24/82)
R83—39
55 PCB 319, December 15,
1983;
7 Ill. Peg.
1732S,
December 20,
1983, effective December 19,
1983.
(4/1/83)
R85—23
70 PCB 311
& 71 PCB 108, June 20
& July 11,
1986;
10 Ill. Reg. 13274, August
8,
1986, effective July
28
&
29,
1986.
(5/11/84
through
11/15/84)
R86—27
Dismissed at 77 PCB 234, April 16,
1987.
(No U.S.
EPA amendments through 12/31/86).
R87—29
85 PCB 307, January 21,
1988;
12
Ill.
Reg.
6673,
April 8,
1988, effective March 28,
1988.
(1/1,Y~7
through 6/30/87)
33
R88—2
90
PCB
679,
June
30,
1988;
12
Ill.
Reg.
13700,
August 26,
1988,
effective August 16,
1988.
(7/1/87 through 12/31/87)
R88—17
94
PCB
227,
December
15,
1988;
13
Ill.
Reg.
478,
January
13,
1989,
effective
December
30,
1988.
(1/1/88 through 6/30/88)
R89—2
107
PCB
369,
January
25,
1990;
14
Ill.
Peg.
3059,
March
2,
1990,
effective
February
20,
1990.
(7/1/88 through 12/31/88)
R89—11
ill
PCB
489,
May
24,
1990;
14
Ill.
Reg.
11948,
July 20,
1990, effective July 9,
1990.
(1/1/89
through 11/30/89)
R90—5
Dismissed at 109 PCB 627, March 22,
1990.
(No
U.S.
EPA
amendments
12/1/89
through
12/31/89)
R90—14
122
PCB
335,
May
23,
1991;
15
Ill.
Reg.
11425,
effective
July
24,
1991.
(1/1/90
through
6/30/90)
R91—4
Dismissed at 119
PCB
219,
February
28,
1991.
(No
U.S. EPA amendments 9/1/90 through 12/31/90)
P91—16
Dismissed at 128 PCB 229, December 6,
1991.
(No
U.S. EPA amendments 1/1/90 through 6/30/91)
P92—4
Dismissed
at
133
PCB
107,
April
9,
1992.
(No
U.S.
EPA amendments 7/1/91 through 12/31/91)
R92—13
February 4,
1993;
17 Ill. Peg.
6190, effective
April
5,
1993.
(1/1/92
through
6/30/92)
R93—6
August
5,
1993;
17
Ill.
Reg.
15641,
effective
September 14,
1993.
(7/1/92 through 12/31/92)
R93—17
Dismissed September 23,
1993.
(No U.S. EPA
amendments 1/1/93 through 6/30/93)
In one proceeding filed,
a petitioner seeks an adjusted
standard from a UIC land disposal restriction, pursuant to the
procedures outlined above with respect to the RCRA Subtitle C
program (petitioner name in parentheses):
P92-8
Presently
pending.
(Cabot
Corp.)
AGENCY OR
BOARD
ACTION?
Section 7.2(a)(5) of the Act requires the Board to specify
which decisions U.S. EPA will retain.
In addition, the Board is
to specify which State agency is to make decisions, based on the
34
general division of functions within the Act and other Illinois
statutes.
In
situations
in
which
the
Board
has
determined
that
U.S.
EPA will retain decision-making authority, the Board has replaced
“Regional
Administrator”
with
U.S.
EPA,
so
as
to
avoid
specifying
which office within 13.5. EPA is to make a decision.
In a few instances in identical in substance rules,
decisions are not appropriate for Agency action pursuant to a
permit application.
Among the considerations
in
determining
the
general division of authority between the Agency and the Board
are:
i.
Is the person making the decision applying a Board
regulation,
or taking action contrary to
(“waiving”)
a Br~ard
regulation?
It generally takes some form of Board actio~to
“waive”
a
Board
regulation.
2.
Is
there
a
clear
standard
for
action
such
that
the
Board
can
give
meaningful
review
to
an
Agency
decision?
3.
Does
the
action
result
in
exemption
from
the
permit
requirement itself?
If so, Board action is generally
required.
4.
Does
the
decision
amount
to
“determining,
defining
or
implementing environmental control standards” within the
meaning of Section 5(b)
of the Act.
If so,
it must be m’zle
by
the
Board.
There are four common classes of Board decision:
variance,
adjusted standard, site specific rulemaking, and enforcement.
The first three are methods by which a regulation can be
temporarily postponed (variance)
or adjusted to meet specific
situations
(adjusted standard or site specific rulemaking).
Note
that there often are differences in the nomenclature for these
decisions between the U.S. EPA and Board regulations.
EDITORIAL CONVENTIONS
As
a
final
note,
the
federal
rules
have
been
edited
to
establish a uniform usage throughout the Board’s regulations.
For example, with respect to “shall”,
“will”, and “may”
—
“shall”
is used when the subject of a sentence has to do something.
“Must”
is
used
when
someone
has
to
do
something,
but
that
someone
is not the subject of the sentence.
“Will” is used when the
Board obliges itself to do something.
“May” is used when cho~ce
of a provision is optional.
“Or” is used rather than “and/or’,
and
denotes
“one
or
both”.
“Either”...”or”
denotes
“one
but
not
both”.
“And”
denotes
“both”.
35
IT IS SO
ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, her~bycertify that t1,i~aboveopinion was adopted on the
day of
___________________,
1994, by a vote
of
-
C
.
Dorothy N. ,~nn,Clerk
Illinois P~X1utionControl Board
