ILLINOIS POLLUTION CONTROL BOARD
    September 13, 1989
    IN THE MATTER OF:
    )
    RCRA UPDATE, USEPA REGULATIOHS
    )
    R89-l
    (8-1-88 THROUGH 12-31-88)
    )
    FINAL ORDER. ADOPTED RULE
    OPINION OF THE BOARD (by J. Anderson):
    By a separate Order, pursuant to Section 22.4(a) of the Environmental
    Protection Act (Act), the Board is amending the RCRA hazardous waste
    regulations.
    Section 22.4 of the Act governs adoption of regulations establishing the
    RCRA program in Illinois. Section 22.4(a) provides for quick adoption of
    regulations which are “identical in substance” to federal regulations;
    Section 22.4(a) provides that Title VII of the Act and Section 5 of the
    Administrative Procedure Act shall not apply. Because this rulemaking is not
    subject to Section 5 of the Administrative Procedure Act, it is not subject to
    first notice or to second notice review by the Joint Committee on
    Administrative Rules (JCAR). The federal RCRA regulations are found at 40 CFR
    260 through 270, and 280. This rulemaking updates Illinois’ RCRA rules to
    correspond with federal amendments during the period August 1 through December
    31, 1988. The Federal Registers utilized are as follows:
    52 Fed. Reg. 46963
    December 10, 1987
    53 Fed. Reg. 31211
    August 17, 1988
    53 Fed. Reg.
    33950
    September 1, 1988
    53 Fed. Reg. 34086
    September 2, 1988
    53 Fed. Reg. 35420
    September 13, 1988
    53 Fed. Reg. 37045
    September 23, 1988
    53 Fed. Reg. 37934
    September 28, 1988
    53 Fed. Reg. 39728
    October 31, 1988
    53 Fed. Reg. 41649
    October 24, 1988
    53 Fed. Reg. 43881
    October 31, 1988
    53 Fed. Reg. 43883
    October 31, 1988
    53 Fed. Reg.. 45090
    November 8, 1988
    In R87-39 the Board inadvertently omitted a portion of the December 10,
    1987 Federal Register. After noting this error, the Board reserved Docket
    R88-29 for the correction. However, it was not possible to prepare a proposal
    significantly in advance of this update. The Board has therefore closed R88—
    The Board acknowledges the contributions of Morton Dorothy of the
    Scientific/Technical Section in drafting the Opinion and Order.
    103—179
    —2-
    29, and will address the December 10, 1987 Register in this Docket.
    In R88—16 the Board expanded the update period to seven months to include
    July, 1988, in order to allow for quicker adoption of certain important
    amendments. This update will be shortened to five months to get the updates
    back on their normal times.
    On July 26 and September 26, 1988, USEPA adopted amendments to the UIC
    permit procedures which are reflected in 35 Ill. Adm. Code 705. (53 Fed. Reg.
    28147 and 37410. These will be adressed in R89-2. This update will also
    include a UIC amendment to Section 702.161, which is derived from one of the
    Federal Registers otherwise addressed in R89-2.
    On September 23 and October 26, 1988, USEPA adopted major revisions to
    the Underground Storage Tank (UST) program, which is mandated by the Resource
    Conservation and Recovery Act. The Board has utilized Docket R88-27 and R89—4
    to address these amendments. Subsequent amendments to the USEPA UST rules
    will be addressed in that Docket or a separate UST update Docket. After the
    UST program is established, the Board will consider recombining the RCRA and
    UST updates.
    On September 23, 1988, USEPA also published a “clarification” as to the
    status of mixed radioactive and hazardous waste. Although this involved no
    amendment to the USEPA rules, it has been included in the list since, as
    discussed below, it could result in a need to amend the Act or Board rules.
    The USEPA amendments include several site—specific delistings. As
    provided in 35 Iii. Adm. Code 720.122(d), the Board will not propose to adopt
    site—specific delistings unless and until someone files a proposal showing why
    the delisting needs to be adopted as part of the Illinois program.
    PUBLIC COMMENT
    The Board adopted a Proposed Opinion and Order on May 25, 1989. The
    proposal appeared on June 30, 1989, at 13 111. Reg. 9661. The Board has
    received the following public coilinent:
    PC 1
    Secretary of State, Corporation Department, dated April 25,
    1988, but docketed on April 10, 1989
    PC 2
    Administrative Code Unit, August 4, 1989
    PC 3
    Big River Zinc Corporation, August 7, 1989
    PC 4
    Impact Analysis, Small Business Office, Department of Commerce
    and Community Affairs (DCCA), August 8, 1989
    PC 5
    Illinois Environmental Protection Agency (Agency), August 14,
    1989
    PC 6
    Chemical Waste Management, Inc., August 14, 1989
    PC 7
    United States Environmental Protection Agency (USEPA), August
    24, 1989.
    103—180
    —3-
    PC 8
    Joint Coirmittee on Administrative Rules (JCAR) Questions,
    received September 10, 1989
    PC 1 was apparently a public coment which was directed to the Board in
    response to a request for conlilent in R87-39. However, the letter bore no
    Docket number, and was not properly routed until long after it was received.
    It concerns the requirement, discussed below in connection Section 724.241 et
    seq., that a corporation register with the Secretary of State before using
    the
    corporate guarantee mechanism for financial assurance.
    On August 31, 1989,
    the Board entered an Order pursuant to Section 7.2 of
    the Act explaining why this rulemaking was not completed within the time
    limits of Section 22.4(a) of the Act. On September 10, 1989, the Board
    received from JCAR a series of eight sets of questions addressing various
    Parts in this rulemaking. It appears that additional questions may be
    forthcoming, in that not all Parts have been addressed. As noted in the
    August 31 Order, the Board prefers that JCAR interaction occur during the
    comment period, and prior to Board adoption of rules. In this matter JCAR has
    asked its questions some three weeks after the close of the public coment
    period, and two days before the Board was to move to final adoption. This may
    further delay this rulemaking. However, the Board has attempted to respond to
    the specific questions in this Opinion.
    USEPA’s comment indicated that certain issues identified in “enclosure 2”
    had been referred to headquarters. However, the enclosure was omitted from
    the comment. If Region V receives a response from headquarters during the
    final, post-adoption motion period allowed below, it may wish to file the
    response with the Board.
    The Proposed Opinion included a large number of specific requests for
    comment on issues. The Board construes silence as an affirmative statement
    that proposed language was acceptable. In situations in which alternatives
    were discussed, the Board construes silence as an affirmative statement that
    either alternative was acceptable.
    HISTORY OF RCRA, UST and UIC ADOPTION
    The Illinois RCRA, UST (Underground Storage Tanks) and UIC (Underground
    Injection Control) regulations, together with more stringent ~stateregulations
    particularly applicable to hazardous waste, include the following:
    702
    RCRA and UIC Permit Programs
    703
    RCRA Permit Program
    704
    UIC Permit Program
    705
    Procedures for Permit Issuance
    709
    Wastestrearn Authorizations
    720
    General
    721
    Identification and Listing
    722
    Generator Standards
    723
    Transporter Standards
    724
    Final TSD Standards
    725
    Interim Status TSD Standards
    726
    Specific Wastes and Management Facilities
    103—18 1
    -4-
    728
    USEPA Land Disposal Restrictions
    729
    Landfills: Prohibited Wastes
    730
    UIC Operating Requirements
    731
    Underground Storage Tanks
    Special procedures for RCRA cases are included in Parts 102, 103, 104 and
    106.
    Adoption of these regulations has proceeded in several stages. The Phase
    I RCRA regulations were adopted and amended as follows:
    R8l-22
    45 PCB 317, February
    4, 1982, 6 Ill. Reg. 4828, April 23, 1982.
    R82—18 51 PCB 31, January 13, 1983, 7 Ill. Reg. 2518, March 4, 1983.
    Illinois received Phase I interim authorization on May 17, 1982 (47 Fed.
    Reg. 21043).
    The UIC regulations were adopted as follows:
    R81—32 47 PCB 93, May 13, 1982; October 15, 1982, 6 Ill. Reg. 12479.
    The UIC regulations were amended in R82-l8, which is referenced above.
    The UIC regulations were also amended in R83—39:
    R83—39 55 PCB 319, December 15, 1983; 7 Ill. Reg. 17338, December 20,
    1983.
    Illinois received UIC authorization February 1, 1984. The Board has
    updated the UIC regulations:
    R85-23 70 PCB 311, June 20, 1986; 10 111. Reg. 13274, August 8, 1986.
    R86-27
    Dismissed at
    77 PCB 234, April 16, 1987 (No USEPA amendments
    through 12/31/86).
    R87-29
    January 21, 1988; 12 Ill. Reg. 6673, April 8, 1988; (1/1/87
    through 6/30/87)
    R88-2
    June 16, 1988; 12 Ill. Reg. 13700, August 26, 1988.
    (7/1/87
    through 12/31/87)
    R88-17 December 15, 1988; 13 Ill. Reg. 478, effective December 30,
    1988. (1/1/88 through 6/30/88)
    R89—2
    Next Docket (7/1/88 through 12/31/88)
    The Phase Ii RCRA regulations included adoption of Parts 703 and 724,
    which established the permit program and final TSD standards. The Phase II
    regulations were adopted and amended as follows:
    R82—l9 53 PCB 131, July 26, 1983, 7 Ill. Reg. 13999, October 28, 1983.
    R83-24 55 PCB 31, December 15, 1983, 8 Ill. Reg. 200, January 6, 1984.
    103—182
    -5-
    On September 6, 1984, the Third District Appellate
    Court upheld the
    Board’s actions in adopting R82—l9
    and R83—24. (Commonwealth Edison et al. v.
    IPCB, 127 Ill. App. 3d 446; 468 NE 2d 1339 (Third Dist. 1984).)
    The Board updated the RCRA regulations to correspond with USEPA
    amendments in several dockets. The period of the USEPA regulations covered by
    the update is indicated in parentheses:
    R84-9
    64 PCB 427, June 13, 1985; 9 Ill. Reg. 11964, effective July 24,
    1985. (through 4/24/84)
    R85—22 67 PCB 175, 47Y, December 20, 1985 and January 9, 1986; 10 Ill.
    Reg. 968, effective January 2, 1986. (4/25/84
    ——
    6/30/85)
    R86—1
    71 PCB 110, July 11, 1986; 10 Ill. Reg. 13998, August 22,
    1986. (7/1/85
    -—
    1/31/86)
    R86-19 73 P08 467, October 23, 1986; 10 Ill. Reg. 20630, December 12,
    1986. (2/1/86
    --
    3/31/86)
    R86—28 75 P08 306, February 5, 1987; and 76 PCB 195, ~1arch5, 1987; 11
    Ill. Reg. 6017, April 3, 1987. Correction at 77 PCB 235, April
    16, 1987; 11 Ill. Reg. 8684, May 1, 1987. (4/1/86
    —-
    6/30/86)
    R86—46 July 16, 1987; August 14, 1987; 11 Ill. Reg. 13435. (7/1/86
    9/30/86)
    R87—5
    October 15, 1987; 11 Ill. Reg. 19280, November 30, 1987.
    (10/1/86
    —-
    12/31/86)
    R87-26 Dec~mber3, 1987; 12 Ill. Reg. 2450, January 29, 1988.
    (1/1/87
    --
    6/30/87)
    R87-32 Correction to R36-1; September 4, 1987; 11 Ill. Reg. 16698,
    October 16, 1987.
    R87-39 Adopted June 14, 1988; 12 Ill. Reg. 12999, August 12, 1988.
    (7/1/37
    --
    12/31/87)
    R88-16 November 17, 1988; 13 Ill. Reg. 447, effective December 28,
    1988 (1/1/88
    --
    7/31/88)
    R89-1
    T~isDocket (8/1/88
    —-
    12/31/88)
    Illinois received final authorization for the RCRA program effective
    January 31, 1986.
    The Underground Storage Tank rules were adopted in R86-1
    arid
    R86—28,
    which were RCRA update Dockets discussed above. A major revision was adopted
    by the Board in R88—27 on April 27, 1989. The UST financial assurance rules
    Were adopted in R89—4, July 27, 1989.
    The Board added to the federal listings of hazardous waste by listing
    103—183
    -6-
    dioxins pursuant to Section 22.4(d) of the Act:
    R84-34
    61 PCB 247, November 21, 1984; 8 Iii. Reg. 24562, effective
    December 11, 1984.
    This was
    repealed by R85-22, which included adoption of USEPA’s dioxin
    listings.
    Section 22.4(d) was repealed by S.B. 1834.
    The Board has adopted USEPA delistings at the request of Amoco and
    Envirite:
    R85-2
    69 PCB 314, April 24, 1986; 10 Ill. Reg. 8112, effective ~~1ay2,
    1986.
    R87-3O June 30, 1988; 12 Ill. Reg. 12070, effective July 12, 1988.
    The Board has procedures to be followed in cases before it involving the
    RCRA regulations:
    R84—lO 62 PCB 87, 349, December 20, 1984 and January 10, 1985; 9 Ill.
    Reg. 1383, effective January 16, 1985.
    The Board also adopted in Part 106 special procedures to be followed in
    certain determinations. Part 106 was adopted in R85—22 and amended in R86—46,
    listed above.
    The Board has also adopted requirements limiting and restricting the
    landfilling of liquid hazardous waste, hazardous wastes containing halogenated
    compounds and hazardous wastes generally:
    R8l-25 60 PCB 381, October 25, 1984; 8 Ill. Reg. 24124, December 4,
    1 984;
    R83-28 February 26, 1986; 10 Ill. Reg. 4875, effective March 7, 1986.
    R86-9
    Emergency regulations adopted at 73 P08 427, October 23, 1986;
    10 Ill. Reg. 19787, effective November 5, 1986.
    The Board’s action in adopting emergency regulations in R86-9 was
    reversed (CBE and IEPA
    V.
    IPCB et al., First District, January 26, 1987).
    Hearings on permanent rules are pending.
    DETAILED DISCUSSION
    The Federal Registers involved in this rulemaking include the following:
    December 10, 1987
    Subpart X, Miscellaneous Units
    August 17, 1988
    First Third waste bans
    September 1, 1988
    Liability Insurance
    September 2, 1988
    Revisions to Tank Systems rules
    September 13, 1988
    Listing of smelter wastes
    September 23, 1988
    Radioactive mixed waste
    September 28, 1988
    Three Tier Permit Modification Process
    October 11, 1988
    Statistical Methods for Groundwater Monitoring
    103—184
    —7—
    October
    31, 1988
    Delisting of iron dextran and strontium sulfide
    November 8, 1988
    Manifest form
    On September 23, 1988 USEPA published a “Clarification of Interim Status
    Qualification Requirements for the Hazardous Components of-Radioactive Mixed
    Waste”. (53 Fed. Reg. 37045). This concerns waste which is hazardous waste
    and also is radioactive, but which is not “source, special nuclear or
    byproduct material” as defined in the Atomic Energy Act. This category of
    waste has always been regulated under RCRA, but there has been substantial
    confusion. The Board believes that no change is needed either to the Act or
    the Board rule~ in order to regulate this category of waste. Specifically,
    the Board believes that the definition of “hazardous waste” in Section 3.15 of
    the Act is consistent with this interpretation, as is the exclusion in 35 Ill.
    Adm. Code 721.104(a)(4). The Board specifically requested comment on this
    issue, and received no response.
    The rules have been edited to establish a uniform usage with respect to
    “shall”, “must”, “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 obligates itself to do something. “May” is used when a
    provision is optional. Some of the USEPA rules appear to say something other
    than what was intended. Others do not read correctly when the Board or IEPA
    is substituted into the federal rule. The Board does not intend to make any
    substantive change in the rules by way of these edits.
    Section 702.104
    This Section is derived from 40 CFR 270.6, which is a short
    incorporations by reference Section. All but one of these documents
    incorporated by reference in Section 720.111. The Board has therefore
    consolidated these lists in the latter Section. This will shorten the rules,
    ease maintenance of the incorporations by reference file, and avoid
    inconsiste~cies as to editions.
    Section 702.110
    This Section is drawn from 40 CFR 144.3 and 270.2, which was amended at
    53 Fed. Reg. 34086 and 37934. These add or modify definitions for
    “component”, “elementary neutralization unit”, “facility mailing list”,
    “functionally equivalent component” and “wastewater treatment unit”.
    The definition of “elementary neutralization unit” has been amended to
    add “tank system” to the list of possible units. This definition is used in
    Section 724.101(f)(6), and other places, to state the scope of an exemption
    from the RCRA permit requirement and standards. The current definition of
    elementary neutralization unit, as modified by the Federal Register, reads:
    ...a device which: is used for neutralizing wastes —whi~e~iaFe
    ha~a~de~swastes -only because they exhibit the corrosivity
    characteristic
    This produces a substantive change in the definition which is unrelated to the
    other change, and which USEPA probably did not intend. Under the new federal
    103—18 5
    -8-
    definition a subjective test is introduced: Is that the only reason the
    operator is neutralizing the waste, or does he have a hidden motive?
    Furthermore, consider an acidic waste which contains a toxic component which
    is unaffected by the neutralization process. Under the new language, since
    neutralization has no effect on the toxic component, the treatment unit would
    be an elementary neutralization unit, and exempt from the permit. Under the
    old language, the wastestream would be hazardous both because of corrosivity
    and the toxic component, so that the treatment
    unit would not qualify as an
    elementary neutralization unit. It
    seems unlikely that USEPA intended this
    about face on this definition. The Board has therefore left the stricken
    language in the definition.
    Section 702.152
    This Section is drawn from 40 CFR 144.51 and 270.30, which was amended at
    53 Fed. Reg. 37934. The RCRA only provision has been placed in Section
    703.247, discussed below.
    Section 702.160 (UIC amendment)
    The proposal included a large number of UIC amendments, some of which
    reflected federal UIC amendments, but most of which involved separating and
    renumbering common RCRA/UIC provisions to allow adopliion of the RCRA permit
    rules as discussed
    below. Because of delays in proposing R89-2, it
    is now
    necessary to remove the UIC aspects of this proposal. These will be addressed
    in R89-2. Specifically, common RCRA/UIC provisions will be retained, but
    designated as UIC-only provisions. These will be proposed for renumbering to
    Part 704 in R89-2.
    Section 702.181
    ihis Section is drawn from 40 CFR 144.35 and 270.40, which was amended at
    53 Fed. Reg. 37934. The federal amendment references the new procedures for
    permit modification discussed beloii. The existing federal and State text.
    differ in a substantive way, in that, while a RCRA or UIC permit provides a
    partial shield against federal enforcement, it provides none under State
    law. The text has also been modified to reference “reissuance” of permits,
    which is discussed below in connection with Section 703.270 et seq.
    Only the RCRA provisions, 40 CFR 270, have been amended. Howeve~’,
    because these were stated as common RCRA/UIC rules, in 40 CFR 122 at the time
    the
    Board originally adopted them,
    it is necessary
    to deconsolidate them
    before the RCRA amendments can be implemented. As discussed
    above, the Board
    had intended
    to renumber these in conjunction .with R89—2. However,
    it is now
    necessary to
    leave the UIC material in place pending action on R89-2.
    (JCAR)
    Section 702.182 through 702.185 and 702.187
    This Section is drawn from 40 CFR 144.38 and 270.40, which was amended at
    53 Fed. Reg. 37934. The general and RCRA only provisions in this and the
    following Sections have been moved to new Sections 703.260 et seq., and the
    general and UIC only provisions have been retained for action in R89—2.
    103—186
    —9-
    Section 702.186
    This
    Section is drawn from 40 CFR 144.40 and
    270.43, which were not
    amended during this update period. It has been included to correct an
    editorial error noted during review of these Sections.
    The federal language
    lists causes for terminating a permit, or denying a renewal application. The
    language adopted in R82—19 changed “terminating” to a reference to revocation
    by the Board under Title VIII of the Act, but also allowed the Board to “deny”
    a permit. Only the Agency
    has this authority under Section 39 of the Act.
    Accordingly, the Board has deleted the reference to permit denial.
    The Board has considered adding a similar provision stating that the
    Agency can deny a permit if grounds for revocation exist. However, this has
    been rejected for two reasons. First, it seems to limit the Agency’s
    authority to deny a permit. Second, the federal language itself may be
    inconsistent with the post-closure care permit provisions of 40 CFR
    27O.1(c)(5) et seq. (35 Ill. Adm. Code 703.159). In certain situations,
    rather than deny an application, the Agency should issue a post-closure care
    permit. The Board solicited comment on this, but received no response.
    Section 703.100
    The Board has added this Section to the proposal to provide an
    introduction to acronyms used in this Part. (PC 2)
    Section 703.183
    This Section is drawn from 40 CFR 270.14(b), which was amended at 53 Fed.
    Reg. 46963. The amendments correct and add cross references to new Subpart
    X. The Board has reworded Section 703.183(t) to eliminate a double non-rule.
    Section 703.184
    This Section is partially drawn from 40 CFR 270.14(b)(11), which was
    not
    amended during this update period. This Section is being amended to update
    statutory references, and to correct language which could be construed as an
    incorporation by reference.
    40 CFR 270.14(b)(11), with necessary State modification, exceeds the
    subsection levels allowable under the APA, so that the Board was forced to
    place the contents of the subsection into a separate Section, leaving a cross
    reference in Section 703.183(k), which is the logical place to look for the
    equivalent. The Sections in this Part include many “lists”, which include
    both very short and very long elements. Because there are so many short
    elements, it is not practical to break the list completely and uniformly into
    Sections. Furthermore, this would make it difficult to reference the complete
    list. The Board was therefore forced to to use a somewhat confusing format of
    retaining the main federal Sections intact, but moving the large elements to
    separate Sections, which are cross referenced from the main list.
    Section 703.184(a) is an Illinois Section which has no federal
    counterpart. This Section is the portion of the Part B application in which
    the operator demonstrates compliance with the siting requirements of Section
    21(1) of the Act, which has been renumbered from Section 21(k).
    103—187
    -10-
    Section 703.184(c) is drawn from 40 CFR 270.14(b)(11)(iii). This
    concerns the 100 year floodplain in the Part B application. The existing
    language could be construed as an incorporation by reference of the flood
    insurance maps for Illinois published by the Federal Emergency Management
    Agency. If this an incorporation by reference, the Board -is required to be
    more specific as to the documents, and to maintain a set for public inspection
    and copying. Also, future amendments could not be automatically referenced.
    The first problem with this is that the volume of the maps is such that the
    Board would have to find a new headquarters to house them.
    Since they are
    frequently amended, staff would have to be added to maintain the collection.
    Also, the prohibition on future amendments could produce a conflict between
    the State and federal rules.
    The USEPA Section is ambiguous as to whether it is incorporating the maps
    by reference. The Board has reworded the Section to avoid such an
    interpretation. The rule is really deferring to the judgment of FEMA as to
    the location of the 100 year floodplain, rather than deferring to an existing
    document. The Board has rewritten the rule to make this clearer. Note that
    the federal (and State) rule allow the applicant to justify a different flood
    elevation, although the FEMA map has to be included with the application, if
    one exists.
    Actually obtaining these maps took several day’s of research. The Board
    is concerned that the USEPA rule does not adequately identify them so as to
    make them available to the public. The Board has therefore provided
    references to the FEMA
    map distribution center, and to a collection
    at the
    Water Survey.
    The USEPA rule calls these “FIA” maps. This term does not appear on the
    maps the Board has obtained. The Board believes that this agency has been
    replaced with the “National Flood Insurance Program”. The Board has
    substituted this name into the rule.
    Section 703.209
    This new Section is drawn from 40 CFR 270.23, which was added at 52 Fed.
    Reg. 46694, December 10, 1987. This was inadvertently omitted from R87—39.
    This specifies the contents of the Part B application for miscellaneous units
    governed by 35 Ill. Adm. Code 724.Subpart X, discussed below.
    This provision has been placed in Section 703.209. Section 703.208 is
    reserved for the equivalent of 40 CFR 270.22, which appears to be reserved.
    40 CFR 270.23(b) first requires “Detailed hydrologic, geologic, and
    meterologic assessments and land use maps...” However, the Section goes an to
    provi de:
    If the applicant can demonstrate that he does not violate
    the environmental performance standards of §264.601 and
    the Director agrees with such demonstration, preliminary
    hydrologic, geologic, and meteorologic assessments will
    suffi ce.
    This poses
    several editorial problems. First, while the USEPA rule is worded
    103—-- 188
    —11—
    as a personal decision of the “Director”, Board rules and the Act are
    generally worded as collective decisions of the “Agency”. Second, while the
    conditional starts with “If the applicant can demonstrate...”, it then goes on
    to refer to “such demonstration”, implying that the applicant must actually
    make the demonstration. A possible rewording is as follo~is:
    If the Agency determines that the unit will conform with
    the environmental performance standards of 35 Ill. Adm.
    Code 724.701, preliminary hydrologic, geologic and
    meteorologic assessments will suffice.
    This is intended to mean the same thing as 40 CFR 270.23, except that it
    has been worded to clearly require an actual demonstration to the Agt~ncy, and
    to avoid specifying the identity of the
    Agency decision maker. Note that
    “Agency determines x” means “A presents facts supporting x to the Agency, and
    the Agency agrees that x is true.”
    This rule suffers from a more serious flaw under either of the above
    interpretations. Under Section 724.701, the Agency is supposed to consider
    hydrologic, geologic and meterologic factors before deciding whether the unit
    meets the environmental performance standard. The Agency therefore needs the
    complete information before it can decide whether to rely on preliminary
    assessments. The following is a possible alternative which would render this
    procedure meaningful.
    Preliminary hydrologic, geologic and meteorologic
    assessments will suffice, unless the Agency notifies the
    applicant that, based on the preliminary assessments, the
    unit will not conform with the environmental performance
    standards of 35 Ill. Adm. Code 724.701. The Agency shall
    follow the procedures for incomplete applications in 35
    Ill. Mm. Code 705.122.
    The Board received no comment in response to its request for comment on
    the meaning of this provision.
    40 CFR 270.23(e) requires “any additional information determined by the
    Director to be necessary...” For reasons similar to those discussed above,
    the Board has worded this to require “additional information which the Agency
    determines is necessary...”
    Section 703.222
    This Section is drawn from 40 CFR 270.62(a), which was amended at 53 Fed.
    Reg.
    37934. This Section is amended to reference the new permit modification
    procedures discussed below.
    This and the following Sections
    concern short-term RCRA permits which are
    issued to allow trial burns at incinerators and land treatment demonstrations
    at land application sites. These have a large number of “shall, must, will
    and may”
    problems, which are discussed above in general. The Board has edited
    these to express
    what appears to be USEPA’s intent with greater uniformity of
    usage.
    103—189
    —12—
    Several of the USEPA provisions state that the agency “will” issue a
    permit. This language is appropriate when the rulemaking body issue the
    permit. In Illinois a different Agency issues permits. This has generally
    been changed to “shall”.
    Several of the USEPA provisions state that the agency “may” issue a
    permit if the applicant
    meets certain conditions. The Board
    has replaced this
    with “shall”, since,
    under Illinois administrative law, the applicant is
    entitled to
    the permit if
    it meets the conditions.
    The Agency objected to the replacement of “may” with “shall” in the~8th
    line of the introductory paragraph of Section 703.222. (PC
    5) This provision
    allows the Agency to extend the
    trial burn period for an incinerator one time,
    for up to
    720 hours, “when good cause
    is shown”. The Board believes that the
    use of “may” in this context would imply
    that the Agency
    could arbitrarily
    refuse to extend the time even though it had determined that “good cause”
    existed for an extension.
    Section 703.223
    This Section is drawn from 40 CFR 270.62(b), which was amended at 53 Fed.
    Reg. 37934. This Section is amended to reference the new permit modification
    procedures discussed below.
    The Agency objected to the replacement of “may” with “shall” in the 3rd
    line of the introductory paragraph of Section 703.230. (PC 5) This provision
    allows the Agency to issue land treatment demonstration permits. The Board
    agrees with the Agency that “may” is appropriate in this introductory
    statement of purpose. The provisions which follow set forth adequate
    standards for the issuance of various types of permits.
    Section 703.230
    This Section is drawn from 40 CFR 270.63, which was amended at 53 Fed.
    Reg. 37934. This Section is amended to reference the new permit modification
    procedures discussed below.
    Section 703.247
    This
    new Section is drawn from 40 CFR 270.30(l)(2), which was amended at
    52 Fed. Reg. 37934. The RCRA only provisions of Section 702.152(b) have been
    moved to this Section. The main portion of 40 CFR 270.30(l)(2), which has
    been left behind in Part 702, specifies a permit condition which requires the
    operator to notify the Agency in advance of any planned changes which would
    result in non—compliance. Hence, the title of the Section: “Anticipated
    Noncompliance”. This title has been carried with the RCRA only provisions
    into Part 703. However, it is somewhat misleading, since the RCRA only
    language really concerns when an operator can commence operations at a
    new or
    modified facility. The amendment provides a cross—reference to the new permit
    modification procedures, which in some cases allow an operator to carry out
    the modifications prior to Agency approval.
    40 CFR 270.30(l)(2)(ii) has levels of subdivision without governing text,
    a violation of the Code Unit rules. The Board has inserted “either” at the
    103—190
    —13—
    main level.
    40 CFR 270.30(l)(2)(ii)(B) is not grammatically correct. However, there
    appears to be no way to fix it short of rewriting the whole Section.
    Section 703.260
    This new Section is drawn from 40 CFR 270.40, which was amended at 53
    Fed. Reg. 37934. This and the following Sections are drawn from the RCRA only
    provisions of Sections 702.181 et seq. This Section governs transfer of
    permits, which can be effected as a Class 1 modification without prior Agency
    approval. However, the old operator’s financial assurance continues, until the
    new operator demonstrates compliance.
    There is a possible conflict between this Section and the chief operator
    certification rules in Part 745. Some facilities may be subject to the chief
    operator certification requirement, and would have to have a certified
    operator prior to the sale. The Board has added a Board note with a cross
    reference.
    Section 703.270
    This new Section is drawn from the preamble to 40 CFR
    270.41. which was
    amended at 53 Fed. Reg. 37934. The federal change is to reference the new
    permit modification procedures. Section 702.183 has been moved to this new
    Section as a RCRA only provision.
    40 CFR 270.41 includes procedures for “revocation and reissuance” of
    permits. When Sections 702.183 et seq. were originally adopted, these
    procedures were omitted out of concern that they conflicted with the
    “revocation” procedures involved in Board enforcement under Section 33(b) of
    the Act. However, as used by USEPA, the -“revocation and reissuance”
    procedures do not involve enforcement penalties. Rather, this is a mechanism
    for permit modification by which USEPA cancels an existing permit and replaces
    it with a new permit. In a subsequent update Docket, the Board decided to
    reinsert the procedure, but to call it ‘reissuance” to avoid confusion.
    However, this was not done to all Sections. Several of the following Sections
    are now
    amended along these lines.
    Section 703.271
    This new Section is drawn from 40 CFR 270.41(a), which was amended at 53
    Fed. Reg. 37934. It has been moved from Section 702.184(a). It specifies
    the
    causes for modification, but not reissu~nce. It has been amended to reference
    the new permit modification procedures.
    Section 703.272
    This new Section is drawn from 40 CFR 270.41(b), which was not amended
    during this update period. The text has been moved from Section 702.184(b).
    The Section states causes for modification or reissuance of permits. The text
    of 40 CFR 270.41(b)(1) was omitted on original adoption, and in this
    renumbering, because it allows USEPA to use modification or reissuance in a
    punitive sense when cause exists for an enforcement action. This is
    103— 191
    -14-
    inconsistent with Title VIII of the Act, which authorizes the Board to revoke
    permits as a penalty.
    (See 35 Ill. Adm. Code 702.109.) Also, the USEPA
    provision is inconsistent with 40 CFR 270.1(c)(5) and (6), which requires
    USEPA to issue post-closure care permits, rather than revoke permits, in most
    situations. Section 7.2(a)(5) requires the Board to speci-fy which agency is
    to make decisions, based on the general division of functions in the Act.
    Also, Section 7.2(a)(7) allows the Board to correct apparent errors. (JCAR)
    Section 703.273
    This new Section is drawn from 40 CFR 270.41(c), which was not amended
    during this update period. The text has been moved from Section 702.185 to
    avoid future confusion.
    Section 703.280 et seq.
    This new Section is drawn from 40 CFR 270.42, which was amended at 53
    Fed. Reg. 37934. The “minor modification” process, formerly in Section
    702.187,
    has been replaced with three procedures for handling permit
    modification at the request of the permittee.
    40 CFR 270.42 is far too long to
    meet Code Unit guidelines for a single
    Section, and uses more levels of subdivision that allowed by
    the Code
    Unit.
    The Section has been broken in four Sections, 703.280 through 703.283,
    using
    the “Alien(s)” method followed elsewhere in Part 703. 40 CFR 270.42 is a list
    with three long elements, Sections 270.42(a) through (c), followed by shorter
    elements (d) through (h). The longer elements have been placed in separate
    Sections 703.281 through 703.283. The main list is preserved in Section
    703.280, with cross references in place of the long elements.
    Section 703.281 addresses Class 1 modifications, which the operator can
    effect unilaterally, provided he notifies the Agency within 7 days. If the
    Agency rejects the request, the operator has to go back to the original permit
    conditions.
    Section 703.282 addresses Class 2 modifications. The operator has to
    give prior notice to the Agency and the public, and hold a public meeting.
    The operator
    may effect the
    change unless the Agency rejects it within certain
    time frames.
    Section 703.282(b) and (d) are drawn from 40 CFR 270.42(b)(1) and (4).
    These provisions specify the location and form of notice of public meetings.
    The Agency and USEPA have commented on these provisions. (PC 5 and 7) While
    the notice and hearing requirements in the Act generally specify just that the
    notice be published and the hearing held in the County, the USEPA rules
    generally specify the “vicinity” of the facility. Although the requirements
    of the Act do not control
    ,
    the Board has modified this to remain consistent
    with State procedures in related requirements. However, unlike other States
    the USEPA rules are directed at, Illinois is a State with small Counties. It
    is not possible to get very far away from a facility and still be in the same
    County.
    In connection with Section 703.282(b), USEPA has pointed out that there
    are several areas in Illinois in which there is no newspaper on general
    103—19 2
    —15—
    circulation “published” within the County which includes the area. USEPA is
    taking a narrow view of “published” as referring to the location of the
    printing plant. The Board has added language to make it clear that the notice
    is to be published, “to the extent practicable”, in a newspaper published in
    the same County as the facility.
    If not, a newspaper of g-eneral circulation
    in the vicinity of the facility will be sufficient.
    In connection with Section 703.282(d), the Agency has pointed out that
    requiring the public meeting to be held in the County could be inconvenient in
    some situations. The Board has modified this to provide that the meeting must
    be held “in the County in which the facility is located unless it is
    impracticable to do so, in which case
    the hearing must be held in the vicinity
    of facility.”
    Section 703.283 addresses Class 3 modifications. These are like Class 2,
    except that the operator has to have a decision from the Agency prior to
    placing the modification into effect.
    The federal rules contain several default provisions which require the
    operator to comply with 40 CFR
    265. (For example, see 40 CFR
    270.42(b)(6)(iii). This is unusual, in that it requires a permitted facility
    to revert to the interim status provisions pending action
    on a permit
    revision. However, USEPA considered this and clearly intended this result.
    (52 Fed. Reg. 35845) (PC 5)
    Section 703.Appendix
    This new Section is drawn from 40
    CFR
    42, Appendix I, which was added at
    53 Fed. Reg. 37934 and
    41649. This includes extensive examples
    of the Classes
    of permit modification.
    Section 704.161 (Not’ amended)
    This Section is drawn from 40 CFR 144.31, which was amended at 53 Fed.
    Reg. 46963. This UIC amendment will be addressed in R89—2.
    Section 705.128
    This Section is drawn from 40 CFR 124.5, which was amended at 53 Fed.
    Reg.
    37934.
    This will be addressed in R89-2.
    Section 720.110
    This Section i~drawn from 40 CFR 260.10 which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 34086. These are the definitions applicable to
    Parts 720 et seq.
    In addition to the changes derived from the federal amendments, the Board
    has made
    a few
    editorial revisions to these definitions. Several of these
    concern references to federal rules or statutes. As has been discussed in
    previous Opinions, these are of concern because they may be subject to the APA
    limitations on incorporations by reference. The Board has attempted either to
    make these clearly incorporations by reference in compliance with the APA, or
    to make them clearly not incorporations by reference. In the latter case,
    10
    3—193
    —16-
    among the possible actions are to eliminate unnecessary references, replace
    federal references with derivative State rules, or reword provisions so as to
    reference federal actions rather than rules.
    The Board has amended the definition of “designated facility” to remove
    unnecessary federal references. This term refers to the facility listed by
    the generator on the manifest to receive the hazardous waste shipment.
    Section 722.120 requires that the generator designate a facility with a RCRA
    permit or interim status. It is complicated to state this, since the
    receiving facility could be located out-of-State, and hence have a RCRA permit
    from USEPA op-another authorized state. It is not necessary to repeat the
    limitation on designated facilities in both the definition and the operative
    Section.
    The definition of “elementary neutralization unit” was amended at 53 Fed.
    Reg. 34086. The main change appears to be the addition of “tank systems” to
    the list of units which could be an elementary neutralization unit. See above
    for the discussion of this definition in the Part 702 definitions.
    The definition of “landfill” was amended at 52 Fed. Reg. 46963 to add to
    the list of specific units which are not “landfills.”
    The definition of “miscellaneous unit” was also added at 52 Fed. Reg.
    46963, which added the regulations applicable to miscellaneous units. The
    Board has added “tank system” to the list of units which are not
    “miscellaneous units”. This change is parallel to the changes made at 53 Fed.
    Reg. 34086, and probably represents an error made by USEPA because different
    offices were working with out-of—date copies of the rules.
    The definition of “P01W” has been modified to replace federal references
    with a derivative State definition, adopted with the pretreatment rules in
    R86—44 in 35 Ill. Adm. Code 310.
    The definition of “wastewater treatment unit” was amended at 53 Fed. Reg.
    34086. The main change is again to add ‘tank systems” to the list of units.
    The Board has also replaced the references to the federal Clean Water Act with
    references to the derivative State rules in Parts 309 and 310. To be exempt
    from the hazardous waste rules, a wastewater treatment unit either has to have
    an NPDES permit under Part 309,
    or a pretreatment permit or authorization to
    discharge, issued by the Agency or authorized P01W, under Part 310.
    The USEPA language exempts units “subject to regulation” under the Clean
    Water Act. This is subject to the interpretation that a facility which is
    required to, but does not have an NPDES permit would thereby be exempt from-
    the hazardous waste rules. This is probably not what USEPA intends. As
    adopted by the Board, the exemption would extend only to those units which
    have the required permits.
    Section 720.111
    The changes to the incorporations by reference Section are mainly routine
    updating of documents. As has been discussed in previous Opinions, while
    USEPA in actual practice regards its incorporations by reference as referring
    to future editions of documents, the APA requires the Board to cite to a
    103—194
    —17—
    certain edition. Although USEPA does not routinely update its rules to
    reflect the editions actually in use, the Board needs to update incorporations
    by reference to cite the actual edition USEPA is using as new editions
    come to
    its attention.
    Most of the revisions to the industry standards arose from the UST rules
    adopted in R88—27. The RCRA hazardous waste storage tank rules in Section
    724.290 et seq. reference some of the same industry standards as the UST
    rules. The Board has updated Section 720.111 to use the current editions of
    these standards.
    The Board has shifted the reference toANSI/ASME 831.3 and 831.4 from the
    “ANSI” heading to “ASt4E”, since the latter organization actually provided the
    current edition to the Board. A cross reference is left, since the standard
    is referenced as “ANSI” in the body of the rules.
    The API
    ,
    NACE and
    NFPA references have been changed to the format
    preferred by those organizations, as discussed in R88-27.
    The CFR citations have been routinely updated to reflect the 1988
    edition, which includes rules adopted through July 1, 1988.
    The Board has added a reference to 10 CFR 20, Appendix B, which is the
    NRC’s definition of various types of radioactive material. This is used in
    existing Section 730.103, which is not a part of this rulemaking. The Board
    has also added a reference to 40 CFR 136, which are USEPA analytical methods
    cited in various Sections. The Board has also referenced 40 CFR 302.4 through
    302.6, which is the USEPA definition of CERCLA “hazardous substance” and
    reportable quantity rules. These are.wsed in Parts 724 and 725, discussed
    bel ow.
    Section 721.104
    This Section is drawn from 40 CFR 261.4, which was amended at 53 Fed.
    Reg. 35420. Section 721.104(b)(7) has been amended to include (actually to
    exclude from excluding) certain ore processing wastes. These are related to
    K064, K065, K066, K088, K090 and K091, new listings discussed below.
    There are several minor editorial problems with these amendments. In
    (b)(7)(A), “slurry/sludge” has been rendered as “slurry or sludge”, to avoid
    offending the Code Unit. In (b)(7)(B), “contained in the dredged from” has
    been changed to “contained in and dredged from”, the wording used in the
    listing K065. However, this is probably also an editorial error by USEPA, and
    should probably read “or”. How cou’d the sludge be both contained in and
    dredged from the impoundment?
    In (b)(7)(C), “and/or” has been changed to the equivalent “or” to conform
    with the Code Unit’s style manual.
    Big River Zinc Corporation (Big River) has comented on this listing.
    (PC 3) Big River is a primary zinc manufacturer which produces a sludge which
    meets this listing. According to Big River, the sludge has no hazardous
    characteristics. USEPA’s action in listing the waste was based on 1980 data
    concerning zinc wastes, which is no longer valid. Big River has asked USEPA
    103—195
    -18-
    to reconsider the listing. However, it has not obtained a federal Court stay
    of the listing. Compliance with the listing will cost several million
    dollars, and will place Big River at a competitive disadvantage with respect
    to certain other competitors whose waste does not fall within the listing.
    Section 22.4(a) of the Act obligates the Board to adopt, within specified
    times, the general regulations which USEPA promulgates pursuant to the RCRA
    Act. The definition of “identical in substance” in Section 7.2 of the Act
    gives the Board some latitude to correct USEPA errors. However, this does not
    extend to correcting bad decisions. The Board therefore finds that it has no
    alternative but to adopt a listing which is “identical in substance” to the
    USEPA listing.
    Big River has also requested a hearing. Section 22.4(a) of the Act
    exempts this rulemaking from the hearing procedures of both Title VII of the
    Act and Section 5 of the APA. Given the time constraints and narrow scope of
    this rulemaking the Board cannot schedule a discretionary hearing.
    Under the facts as alleged by Big River, the sludge appears to be a
    candidate for delisting pursuant to 35 Ill. Adm. Code 720.120 and 720.122.
    Delisting is an appropriate action for a waste which meets the definition of a
    listed waste, but which does not have the hazardous characteristics which
    caused the waste to be listed. This could be approached either by requesting
    that USEPA delist the waste pursuant to 40 CFR 260.22, and asking the Board to
    adopt the delisting as an identical in substance rule. Alternatively, Big
    River could file a rulemaking petition asking the Board to delist the waste
    pursuant to Sections 22.4(b) and (c). As an interim measure, the Board might
    be able to grant a variance from the listing.
    As is discussed below, the Board will withhold filing of these amendments
    to allow for motions for reconsideration by the agencies involved in the
    authorization process. Because of the unusual nature of the issues raised by
    the coninent, the Board asks that USEPA review it and advise the Board if it
    believes that the Board should withhold action or modify the USEPA listing in
    this context. In addition, the Board may need to know whether this is a
    situation in which it has authority to proceed with independent delisting.
    Section 721.132
    This Section is drawn from 40 CFR 261.32, which was amended at 53 Fed.
    Reg. 35420. The amendments add the listings K064 through K091 discussed
    above. Similar wording changes have been made.
    Section 721.133
    This Section is drawn from 40 CFR 261.33 which was amended at 53 Fed.
    Reg. 43881 and 43883. The amendments delist iron dextran and strontium
    sul fide.
    Section 721.Appendix G
    This Section is drawn from 40 CFR 261.Appendix VII, which was amended at
    53 Fed. Reg. 35420. These add the bases for the listings K064 through K091
    discussed above.
    103—196
    -19—
    Section 721.Appendix H
    This Section is drawn from 40 CFR 261.Appendix VIII, which was amended at
    53 Fed. Reg. 43881 and 43883. Strontium sulfide and iron dextran have been
    removed from the table of hazardous constituents.
    Section 722.Appendix
    This Section is drawn from 40 CFR 262.Appendix, which was amended at 53
    Fed. Reg. 45090. The Board has updat-d the incorporation by reference of the
    federal uniform hazardous waste manifest form.
    Section 724.110
    This Section is drawn from 40 CFR 264.10, which was amended at 52 Fed.
    Reg. 46963. The amendments add a reference to new Subpart X.
    Section 724.113
    This Section is drawn from 40 CFR 264.13, which was amended at 53 Fed.
    Reg. 31211. The amendments add waste analysis requirements related to the
    landfill bans discussed below in Part 728. The USEPA rule exceeds the Code
    Unit’s limit on subsection levels, so that 40 CFR 270.13(b)(7)(iii)(8)(1) and
    (2) have to be combined into the final available level, 35 Ill. Adni. Code
    724.113(b)(7)(C)(ii
    ).
    Section 724.115
    This Section is drawn from 40 CFR
    264.15, which was amended at 52 Fed.
    Reg. 46963. The amendments correct cross references, and and a reference to
    new Subpart X.
    Section 724.118
    This Section is drawn from 40 CFR 264.18, which was amended at 52 Fed.
    Reg. 46963. The amendments add a reference to new Subpart X.
    Section 724.154
    This Section is drawn from 40 CFR 264.54, which was amended at 53 Fed.
    Reg. 37934. The “note” following this Section has been removed, in relation
    to the new. permit modification procedures discussed above.
    Section 724.173
    This Section is drawn from 40 CFR 264.73, which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 31211. The amendments add a reference to new
    Subpart X, and add requirements for the facility operating record relating to
    the landfill bans.
    Section 728.106, discussed below, requires an adjusted standard pursuant
    to 35 Ill. Adm. Code 106. In adopting this Section, the Board referenced Part
    106 directly, rather than by way of Section 728.106. This could have been a
    103—19 7
    -20-
    typographical error, caused by the similarity of the numbers. The Board has
    changed this to reference the lead in Section.
    Section 724.190
    This Section is drawn from 40 CFR 264.90, which was amended at 52 Fed.
    Reg. 46963. It states the applicability of the groundwater monitoring
    requirements to miscellaneous units, which are discussed below. The federal
    provision has been edited to shorten it and make it say something.
    Section 724.191
    This Section is drawn from 40 CFR 264.91, which was amended at 53 Fed.
    Reg. 39728. The amendments add definitions of “detected” and “exceeded” for
    use in the groundwater monitoring rules which follow.
    Section 724.192
    This Section is drawn from 40 CFR 264.92, which was amended at 53 Fed.
    Reg. 39728. The language has been amended to conforni with the definitions in
    the preceding Section.
    Section 724.197 through 724.199
    This Section is drawn from 40 CFR 264.97 through 264.99, which were
    amended at 53 Fed. Reg. 39728. These amendments address the question of how
    to tell if a sample exceeds the groundwater protection standard in the
    permit. The existing rules are very specific as to the number of samples, and
    require the use of a variation of the Student’s t-test for statistical
    significance. Under the new rules the sampling, analysis and statistical
    evaluation plan are described by general rules. The operator is required to
    propose a plan in the permit application, meeting the general rules.
    Compliance with the groundwater monitoring standard is judged by reference to
    the plan in the permit.
    40 CFR 264.98(f)(2) has an apparent typographical error which has been
    corrected. (“as” instead of “at” the compliance point.)
    Section 724.211
    This Section is drawn from 40 CFR 264.111, which was amended at 52 Fed.
    Reg. 46963. The amendments add references to new Subpart X.
    Section 724.212
    This Section is drawn from 40 CFR 264.112, which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 37934. The amendments add references to new
    Subpart X, and correct references to permit modification procedures.
    40 CFR 264.112(b) requires the closure plan to identify steps necessary
    “to perform partial and/or final closure”. This has been changed to “partial
    or final closure”, to conform with the Code Unit requirements, which equate
    “and/or” with “or”. However, the USEPA rule may be wrong in using “and/or” in
    the first place. “Or” seems wrong, since the plan would always have to
    10 3—198
    -21-
    address final closure. “And” also seems wrong, since partial closure would
    not have to be addressed unless the operating plan called for partial closure,
    such as in landfilling by opening and closing a succession of trenches. The
    Board suggested the following, and received no comment:
    The plan must identify steps necessary to perform final closure of
    the facility at any point during its active life. The plan must also
    identify steps necessary for partial closure if necessary under the
    operating plan for the facility.
    Section 724.214
    This Section is drawn from 40 CFR 264.114, which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 34086. The amendments add references to new
    Subpart X, and to reference the rules on disposal of tank system components on
    closure. The latter Federal Register action appears to have inadvertently
    repealed
    the first. The Board assumes this is an error, and has retained to
    earlier language.
    Section 724.217
    This Section is drawn from 40 CFR 264.117, which was amended at 52 Fed.
    Reg. 46963. The amendments add references to new Subpart X.
    Section 724.218
    This Section is drawn from 40 CFR 264.118, which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 37934. The amendments add references to new
    Subpart X and to the revised permit modification procedures.
    Section 724.241
    This Section is drawn from 40 CFR 264.141, which was amended at 53 Fed.
    Reg. 33950. The USEPA amendment adds a definition of “substantial business
    relationship”, which is used in the liability insurance requirements discussed
    below. These amendments raise issues which are closely related to the issues
    discussed in the Opinion in R89-4, financial assurance for underground storage
    tanks. The issues are also closely related to issues discussed in the
    Opinions in R86-46 and R87-39, which included amendments to the liability
    insurance provisions.
    The financial assurance requirements will be discussed below in detail.
    These rules have a number of broad issues concerning the place of the
    financial assurance requirements in State law. These concern the State laws
    which govern the financial assurance instruments and State agencies which
    regulate the financial institutions and corporate guarantors.
    As noted above, Section 22.4(d) requires the Board to adopt regulations
    which are “identical in substance” with USEPA UST rules. This term has
    recently been defined in Section 7.2 of the Act in a manner which codifies the
    Board’s longstanding interpretations of it. (See R85-23, June 20, 1986, 70
    PCB 311, 320; R86-44, December 3, 1987, pages 14 and 19.) Generally the
    “identical in substance” mandate is to adopt the verbatim text of the USEPA
    rules so as to effect a program which requires the same actions by the same
    103—19 9
    -22-
    group of affected persons as would the USEPA rules if USEPA administered the
    program in Illinois.
    However, there are certain situations enumerated in
    Section 7.2 in which the Board is to depart from the verbatim text of the
    USEPA rules. Several of these are relevant to the financial assurance rules.
    Several provisions in the USEPA rules appear to be requirements for
    program approval or directives from USEPA as to the types of rules the states
    are to adopt, rather than “pattern” rules which the states are supposed to
    adopt verbatim.
    Section 7.2 of the Act also requires the Board to modify the text as
    necessary to accommodate the requirements of State law. Several provisions
    need to be modified to correctly state the requirements of State law. Indeed,
    these provisions may also be construed as directives from USEPA to insert the
    correct State law.
    These complexities arise out of the nature of the financial assurance
    mechanisms. Although the use of the mechanisms is mandated by federal law,
    the mechanisms themselves are a matter of state law. Operators subject to the
    federally—mandated environmental regulations must contract, pursuant to state
    law, with financial institutions which are created and mainly regulated under
    state law, and which are not themselves usually the subject of environmental
    regulation. This is further complicated by balancing the need for a national
    financial assurance system versus the necessity for state administration and
    enforcement, given the national policy of delegating to the states.
    The State agencies which regulate the financial institutions and other
    providers include: Commissioner of Banks and Trust Companies; Department of
    Insurance; and, Secretary of State, Corporation Division. The Corporation
    Division has responded in PC 1. The Board sent the others a copy of this
    Opinion and Order, together with a cover letter specifically requesting
    comment, and
    received none.
    In R86-46 and R87-39 the Board has addressed multistate problems with
    respect to hazardous waste financial assurance. The following is a
    hypothetical which illustrates some of the problems with multi—state financial
    assurance as apparently contemplated under the USEPA rules.
    Suppose a Delaware corporation, with headquarters in New Jersey, operates
    a hazardous waste facility located in Illinois. The financial institution is
    a Nevada corporation with headquarters in Connecticut. The financial
    assurance documents are drafted at the financial institution’s office in New
    York, and mailed to the operator’s corporate headquarters in New Jersey.
    Whose law applies? Which State has jurisdiction to decide?
    For a second example, suppose the Delaware corporation, headquartered in
    New Jersey, owns
    an Illinois subsidiary, which owns a facility in Illinois.
    The Board suggests that the following are general legal rules which
    govern the choice of law governing financial assurance documents.
    The financial institution must have the power to issue the document.
    This mainly depends on the law of the state of incorporation, and the terms of
    the charter or articles of incorporation. In addition, the institution needs
    103— 200
    -23-
    to be licensed by at least some state to engage in the activity.
    The validity of a corporate guarantee is similar. The corporation must
    have the power to make the guarantee under the laws of the state of
    incorporation, and under its articles of incorporation.
    Generally the validity of an instrument is governed by the law of the
    state in which the instrument is executed. This probably means the place at
    which the signed document is delivered to the operator.
    (Where it’s placed
    into the mailbox?) However, the parties can agree that the law of another
    state governs the instrument. There may be limitations on this, especi~’lyif
    the instrument violates some law of the state in which it ‘is executed.
    The financial institution certainly has to be licensed in the states in
    which it has its offices. It is not clear whether licensure is required in
    all states in which instruments are executed or in which facilities are
    located. A business entity which guarantees the debts of an operator may, or
    may not, be “doing business” in the operator’s State, and may have to register
    with the Corporation Division. Generally a parent corporation is not “doing
    business” in a state by virtue of ownership of a subsidiary which is doing
    business.
    There are constitutional limitations as to wherethe providers of
    financial assurance can be sued. Licensing and registration would allow the
    financial institution or guarantor to be sued in the State in which the
    facility is located. Otherwise, they can generally be sued in the state
    courts or U.S. District Courts in the states in which they are organized or do
    business. There are ways to obtain jurisdiction in Illinois, but none appear
    to be generally applicable. This may not be important to USEPA, which
    maintains a presence in all states. However, for Illinois it is important to
    be abtme to sue in Illinois courts pursuant to Illinois law. Otherwise, the
    State would have to have experts on the financial laws of many states to
    review documents, and would have to set up regional collection offices around
    the country.
    40 CFR 264.147(g)(2) allows an operator to use a corporate guarantee bond
    only if the Attorneys General in the states in which the guarantor has its
    pronciple place of business and facilties. In addition, 40 CFR 271.7 and
    271.12 require an Attorney General ‘s statement that all of the mechanisms are
    valid and enforceable.
    The Board notes in passing that the specific certification requirement
    probably misses the point. As discussed above, the validity of the guarantee
    or bond is probably governed by the law of the State of incorporation or
    chartering of the guarantor or surety, and the law of the place where the
    financial instrument is executed, rather than the law of the places where the
    facility is located or the operator has its principal place of business.
    The Board faced a similar question with respect to Attorney General
    certification of hazardous waste corporate guarantees in R86-46 and R87—39.
    There are a number of ways of interpreting this requirement. For the reasons
    discussed above, the validity of the financial mechanisms under the USEPA
    rules may be determined under the laws of several states. If the
    certification requirement is asking the Attorney General of Illinois to make a
    103—201
    -24-
    generic certification at the time of application for program approval, it is
    asking for a certification that mechanisms are valid under the laws of other
    states. It is not right to even ask the Illinois Attorney General to make
    this certification.
    The Board discussed a number of other interpretations in R86—46 and R87—
    39. One possibility would be to limit multistate combinations to those
    involving a small number of neighboring states, and ask the Attorneys General
    in each to certify. This is probably unworkable. Another possibility would
    be to require each operator using a multistate combination to obtain
    individual Attorney General certifications with ~c~spectto each of the states
    involved in the combination. USEPA rejected this possiblity in the most
    recent preamble as unworkable. (53 Fed. Reg. 33945) In R86—46 and R87—39 the
    Board limited hazardous waste corporate guarantees to those which were
    governed entirely by
    Illinois law, so as to allow the Illinois Attorney
    General to certify alone that the guarantees were valid and enforceable. The
    Board received no adverse comment to this interpretation.
    The Board has followed the same course with respect to the new financial
    mechanisms discussed below. The Board has limited financial mechanisms to
    those which
    are governed entirely by Illinois law. Financial institutions
    will have to obtain approval from Illinois regulatory authorities before they
    can issue financial assurance which will be acceptable as meeting the
    regulatory requirements. Corporate guarantors will have to register with the
    Secretary of State. And, the guarantors and trustees will have to agree that
    Illinois law governs.
    The term “substantial business relationship”, defined in Section
    724.241(h), is used to limit the types of non—financial institutions which can
    offer a guarantee to the operator which will function in lieu of liability
    insurance. As defined in the federal rule, a “substantial business
    relationship” is the extent of a business relationship which will support a
    valid and enforceable guarantee contract under State law.
    This federal definition is a directive to the states to write a
    definition, rather than a “pattern” rule which the states are supposed to
    adopt. Section 7.2 of the Act authorizes the Board to use identical in
    substance procedures in crafting definitions meeting such federal directives.
    There are two types of guarantees. One is a performance bond written by
    a regulated financial institution. The other is a guarantee by one business
    entity, which is not a financial institution, but which meets the financial
    test, that it will pay any clean up costs if another entity fails to do so.
    The latter type of guarantee is subject to the objection that the guarantee
    may be invalid unless the guarantor is regulated as a financial institution.
    It may also be subject to consumer protection legislation, since the
    relationship is rather like a teenager getting his aged aunt to cosign a loan
    for a car. The question is, what is the extent of the relationship between
    the guarantor and operator such that the guarantee is valid?
    The rules discussed below limit these guarantees to those from a parent
    corporation to a subsidiary. Although the amendments extend the guarantees to
    indirect corporate ownership patterns, the main rules are still limited to
    parent/subsidiary relationships. A subsidiary is defined as a corporation
    103—2 02
    -25—
    which is more than 50 owned by the parent. This is probably a sufficient
    relationship to result in a valid guarantee anywhere.
    The Board addressed this question in R84-22C. Since the 50 ownership
    requirement appeared to be rather restrictive, the Board proposed to allow
    guarantees from any entity with any ownership interest in the operator. (See
    35 Ill. Adm. Code 807.666(h).) This was accepted by the State
    regulatory
    agencies. Since this is sufficient to ensure enforceability
    of the guarantee,
    Board has proposed to follow the R84-22C
    formulation in this definition. The
    Board recieved no coment on this issue.
    The USEPA definition is really directed not at ownership interests, but
    at other comercial relationships. (See 53 Fed. Reg. 33941 and 33945). There
    are two examples. First, suppose a large firm which meets the financial test
    generates a hazardous waste. The large firm might wish to guarantee any
    liabilities a small treatment firm might incur, in exchange for a reduction in
    treatment costs. Second, a hazardous waste treatment equipment vendor might
    wish to guarantee liabilities as an inducement to firms to buy its
    equipment.
    There are potential problems with allowing these guarantees. These may
    be illustrated with an example. Suppose a fire extinguisher dealer offered to
    replace its customers houses if they burned down. Department of Insurance
    should probably regulate this activity, to make certain that the company was
    treating its customers fairly, and was maintaining an adequate loss reserve to
    meet claims. How do the hazardous waste guarantees comnpare to this example?
    First, hazardous waste guarantees are commercial relationships which may not
    need the protections afforded consumer relationships. However, third parties,
    the State and innocent bystanders, are really the benficiaries of the
    liability guarantee, and may be deserving of protection. Second, the
    guarantor must meet the financial test in the rules, affording something akin
    to a loss reserve. However, the rules do not specifically require the
    guarantor to establish a loss reserve. For example, an equipment vendor would
    incur a potential annual aggregate loss of $6 billion after selling 1000 units
    with guarantees. How big of a loss reserve should be established is
    complicated by the possibility that all of the units could have the same
    defect.
    Aside from the question of whether this activity needs to be regulated by
    the Department of Insurance, there is also the question of whether it is. if
    these activities fall within the Department of Insurance’s jurisdiction, then
    the Board cannot allow this type of guarantee as meeting the financial
    assurance requirement. The Board specifically requested comment from the
    Department of Insurance to whether it can or should extend the definition of
    “substantial business relationhip” into this area, and received no response.
    Existing Section 724.241(h) includes definitions applicable to the
    liability insurance requirement. The introductory paragraph defines “bodily
    injury” and “property damage” by reference to “applicable state law”. This
    really is a directive, rather than a pattern rule. In R89—4 the Board
    attempted to find the applicable illinois definitions, and found none. In
    Illinois definitions of these terms are left to the parties in the insurance
    contract. if the terms are not defined in the rules, the insurers might issue
    policies covering “bodily injury” and “property damage” with restrictions
    103— 203
    —26—
    which would defeat the purpose of the financial assurance requirement. For
    example, an insurer might limit “bodily injury” to one which is manifested
    within a short period of time, or limit “property damage” so as to not
    compensate for loss
    of use of property which is rendered unihabitable by
    pollution. If these terms are not defined in the rules,
    the
    State would be
    obliged to accept the policies as meeting the regulatory requirement.
    Since these definitions are essential to the program, Section 7.2 of the
    Act requires the Board to craft
    a definition to fill the hole. (JCAR)
    In the preamble to the USI financial assurance rules, USEPA refers to :i,he
    definitions of these terms as prescribed by the Insurance Services Office
    (ISO), a private entity which, among other things, drafts standard forms used
    by many insurance companies. (53 Fed. Reg. 43333, October 26, 1988)
    Commenters urged USEPA to adopt the ISO definitions so as to make the
    regulations conform with insurance industry practices. USEPA refused to do
    so, and instead referenced state law, out of fear that some states would have
    conflicting definitions in their insurance regulations. In such states
    confusion would have resulted from having the ISO definition in the UST rules,
    and an insurance regulatory definition in the policy. However, since illinois
    has no definitions in its insurance regulations, no conflict should result
    from using the standard industry terms in the text of the rules. The Board
    has therefore used the ISO definitions of “bodily injury” and “property
    damage”.
    The Board has reviewed the text of these definitions, and finds no
    problems with the language of these two definitions themselves. The Board
    received no comment to the contrary.
    The ISO definition of “property damage” depends on two other ISO
    definitions: “property damage” includes loss of use of property because of a
    “pollution incident”, which includes a release, provided such release results
    in “environmental damage”. The Board has adopted definitions of these ISO
    terms also. However, there may be problems associated with these terms. The
    terms may conflict with the USEPA terms “occurrence” and “accidental
    release”.
    The ISO definition of “pollution incident” includes yet another
    definition, “pollutants”, which the Code Unit has asked the Board to factor
    out. (PC 2) Also, the definition of “property oamage” has been rearranged to
    meet Code Unit indentation requirements.
    USEPA specifically rejected the ISO definition of “pollution incident”,
    instead retaining its definitions of “occurrence” and “accidental release”.
    However, USEPA added language specifically authorizing the use of alternative
    terms, including the ISO terms, in policies. (53 Fed. Reg. 43334, October 26,
    1988) Of course, this tends to defeat the goal of having the regulatory and
    policy language the same.
    The Board has resolved these problems by adding the following sentence to
    the ISO definition of “pollution incident”: “The term ‘pollution incident’
    includes an ‘accidental release’ or ‘occurrence’”. This allows an insurer to
    bring the ISO policy form into line with the USEPA regulations by adding a
    simple rider. If the insurer fails to do so, the policy would be amended by
    103—204
    —27—
    the endorsement form of 40 CFR
    264.151(e), incorporated by reference in
    Section 724.252. Since this amendment would be simple, it is unlikely that
    any conflict would result between the language of an ISO policy form and the
    regulations.
    Section 724.242 and 724.244
    These Sections are drawn from 40 CFR 264.142 and 264.143, which were
    amended at 52 Fed. Reg. 46963. The amendments add references to new Subpart
    x.
    Section 724.247
    This Section is drawn from 40 CFR 264.147, which was amended at 52 Fed.
    Reg. 46963 and 53 Fed. Reg. 33950. The former amendments added references to
    new Subpart X, which were apparently repealed by the latter. The Board
    assumes this is an editorial error, and has retained the references.
    There are two other ambiguities in the Federal Register. The
    introductory text indicates that paragraph (g)(1)(ii) is removed and
    reserved. However, this is a critical Section which prevents cancellation of
    guarantees until alternative financial assurance is provided. The Board has
    left the equivalent Section 724.247(g)(1)(B) in the rules. It is also unclear
    whether the final sentence of the introductory text to Section 724.247(g) is
    in or out. The Board has left it in.
    40 CFR 264.147(b)(7), as amended at 53 Fed. Reg. 33950, requires the
    operator to notify whenever a claim is made “and” whenever the amount of
    coverage is reduced. In Section 703.247(b)(7), the Board has rendered this as
    “or”. As the Board reads this, USEPA intends notification in either
    situation, rather than notification only if both conditions are met. The
    latter. reading does not make sense. USEPA frequently uses “and”. to mean
    “or”,
    and vice versa. Also, in this Section there is a deeper ambiguity in the
    structure of
    the
    rule. What USEPA probably meant was: “The operator
    shall notify if a claim is made; and, shall notify if the amount of coverage
    is reduced.” This can be fixed more easily by changing “and” to “or”, and
    retaining the basic language. (JCAR)
    The main amendments to this Section expand the methods by which an
    operator may meet the liability insurance requirement. The operator can
    presently meet the requirement with insurance, by passing a financial test or
    with a guarantee from a parent corporation which meets the test..’ As amended,
    the rules will also allow surety bonds, letters of credit and trust funds for
    liability insurance. As discussed above, the rules also expand ~~1ranteesto
    indirect corporate parents, and to firms with a “substantial business
    relationship” with the operator. The Board has above defined this term as an
    ownership interest in the operator, and has rejected contract relationships.
    The Board received no comment on this.
    For the reasons discussed above, the Board has limited the new mechanisms
    to those which are governed by Illinois law, so as to allow the Attorney
    General to certify alone that the mechanisms are “valid and enforceable.” The
    Board has also limited insurance to that available from companies licensed by
    the Illinois Department of Insurance. In R86—46 and R87—39 the Board has
    10
    3—205
    -28-
    already limited corporate guarantees to those which are executed in Illinois
    by a corporation with a registered agent in Illinois.
    In R84—22C, 66 PCB 463,
    November 21, 1985, the Board determined the appropriate agencies for similar
    mechanisms with respect to financial assurance for non—hazardous waste
    landfills.
    The rules track the language adopted in R84-22.C. (See 35 Ill.
    Adm. Code 807.661 et seq.) Specifically, surety bonds require licensing by
    the Department of Insurance, and letters of credit and trust funds require
    licensing by the Commissioner of Banks and Trust Companies.
    Out of State trustees are allowed if they comply with the Corporate
    Fiduciary Act (Ill. Rev. Stat. 1987, ch. 17, pars. 1551—1 et seq.). The Code
    Unit pointed out that Act cited in the proposal has been repealed and replaced
    with the Corporate Fiduciary Act. (PC 2)
    The mechanisms for financial assurance for closure and post—closure care
    may need to be similarly limited. However, these have not been proposed for
    amendment in this update. At the time these were adopted, they were presented
    to the Board as something which had to be adopted
    as pattern rules regardless
    of State
    law. On
    the other hand, the liability requirements have come to the
    Board with specific USEPA directives to adapt the mechanisms to State law and
    as to the Attorney General ‘s statement. The Board will consider limiting the
    other mechanisms if they are amended by USEPA in a similar manner.
    Section 724.251
    This Section is drawn from 40 CFR 264.151, which was amended at 53 Fed.
    Reg. 33950. The Board has updated the incorporation by reference of the
    financial assurance forms. Under the existing language of this Section, the
    Agency will promulgate forms based on the new rules.
    Section 724.290
    This Section is drawn from 40 CFR 264.190, which was amended at 53 Fed.
    Reg. 34086. This Section has been amended to use the newer terminology “tank
    systems”.
    Section 724.293
    This Section is drawn from 40 CFR 264.193, which was amended at 53 Fed.
    Reg. 34086. The Section has been amended to require sealless valves in tank
    systems.
    Section 724.296
    This Section is drawn from 40 CFR 264.196, which was amended at 53 Fed.
    Reg. 34086. The amendment is to a note in the federal Section which was not
    adopted with this Section, since it concerns corrective action orders entered
    by USEPA pursuant to the federal Act. The Agency has similar authority under
    Section 4(q) of the Act. The Board requested comment as to whether a
    reference to Section 4(q) was needed, and received no response.
    The second note to this Section references the CERCLA reporting
    requirements of 40 CFR 302. The Board has updated the reference to the
    federal rules. The Board has done so by removing the date from this Section,
    103—206
    -29-
    and by referencing 40 CFR 302.6, which is already incorporated by reference in
    Section 720.111. This is actually the Section in Part 302 which requires
    noti fication.
    Section 724.700 et seq. Miscellaneous Units
    The following Sections are drawn from 40 CFR 264, Subpart X, which was
    added at 52 Fed. Reg. 46694, December 10, 1987. These were inadvertently
    omitted from R87—39. This Subpart contains general rules for permitting
    hazardous waste management units which are outside the specific categories for
    which there are Subparts.
    40 CFR 264.601(b)(7) requires the USEPA to consider “any water quality
    standards established for those surface waters”. The Board has inserted a
    reference to the standards of 35 Ill. Adm. Code 302 and 303. The Board is not
    aware of any other water quality standards which might apply within Illinois.
    Section 725.113
    This Section is drawn from 40 CFR 265.13, which was amended at 53 Fed.
    Reg. 31211. This Section governs the waste analysis plan at an interim status
    facility. The amendments amend subsection (b)(7)(C), concerning analyses
    related to land disposal bans. The USEPA language exceeds the subsection
    levels available under the Code, and has been condensed.
    Section 725.173
    This Section is drawn from 40 CFR 265.73, which was arnended,at 53 Fed.
    Reg. 31211. This Section requires that certain notifications and
    certifications required under the land disposal bans be kept in the operating
    record. (Section 725.173(b)(8) et seq.)
    Section 725.210 (Not amended)
    This Section is drawn from 40 CFR 265.110, which was amended at 53 Fed.
    Reg. 34086. The amendments add subsection (b)(2), which is already present in
    the Board rules, representing an editorial error previously corrected.
    Section 725.212
    This Section is drawn from 40 CFR 265.112, which was amended at 53 Fed.
    Reg. 37934 to reference the new permit modification pracedures which sometimes
    apply with respect to closure plans at interim status facilities.
    Section 725.214
    This Section is drawn from 40 CFR 265.114, which was amended at 53 Fed.
    Reg. 34086, to add references to the tank regulations to the preface.
    Section 725.218
    This Section is drawn from 40 CFR 265.118, which was amended at and 53
    Fed. Reg. 37934, to reference the new permit modification procedures which
    sometimes apply with respect to post—closure plans at interim status
    1fl3—207
    —30-
    facilities.
    Section 725.241 and 725.247
    These Sections are drawn from 40 CFR 265.141 and 265.147, which were
    amended at 53 Fed. Reg. 33950. The amendments closely follow the amendments
    to the financial assurance rules for permitted facilities, which are discussed
    above. The Board has responded to JCAR’s comments above in connection with
    Section 724.241 and 724.247. (JCAR)
    Section 725.290
    This Section is drawn from 40 CFR 265.190, which was amended at 53 Fed.
    Reg. 34086, to use the preferred term “tank systems”.
    Section 725.293
    This Section is drawn from 40 CFR 265.193, which was amended at 53 Fed.
    Reg. 34086, to add a reference in subsection (f)(3) to sealless valves, and to
    correct a cross reference in subsection (g)(3)(C).
    The Board has also modified the note following Section 725.293(c)(4) to
    improve references to other programs. The reference to the pretreatment
    requirements of the Clean Water Act have been changed to reference the new,
    derivative Board rules in Parts 307 and 310. The broadside reference to the
    CERCLA notification requirements in 40 CFR 302 has been narrowed to the
    specific requirement in 40 CFR 302.6, which is incorporated by reference in
    Section 720.111. The Board has also referenced the equivalent State
    notification requirement in Section 750.410.
    Section 725.296
    This Section is drawn from 40 CFR 265.196, which was amended at 53 Fed.
    Reg. 34086. As is discussed above in connection with Section 724.296, the
    federal note
    which
    is the subject of this amendment is not in the Board
    rules. However, the Board has improved a reference to
    the
    CERCLA reporting
    requirements in 40 CFR 302.6.
    Section 725.301
    This Section is drawn from 40 CFR 265.201, which was amended at 53 Fed.
    Reg. 34086 to correct a cross reference in subsection (c)(3).
    Section 726.120
    This Section is drawn from 40 CFR 266.20 which was amended at 53 Fed.
    Reg. 31211. This concerns the exemption for products, such as fertilizer,
    which are used in a manner which constitutes disposal.
    Section 728.101
    This Section is drawn from 40 CFR 268.1, which was amended at 53 Fed.
    Reg. 31211. These amendments concern the “first third” landfill bans. The
    amendments delete old subsection (c)(3), which postponed the effective date
    103—203
    -31-
    for certain CERCLA and RCRA corrective action wastes, and add subsection
    (c)(5), which allows certain delays until May, 1990. The amendmants also add
    Section 728.101(d), which references “waivers” under CERCLA.
    Section 728.104
    This Section is drawn from 40 CFR 268.4, which was amended at 53 Fed.
    Reg. 31211. The amendments modify the conditions under which a banned waste
    can be treated in an impoundment.
    This, and several following sections, have references to statutory
    prohibitions under Section 3004 of RCRA. In an earlier Docket, the Board
    added Section 728.139, which contains the statutory prohibition, i~n order to
    minimize problems with possible incorporation by reference of a federal
    statute.
    Section 728.105
    This Section is drawn from 40 CFR 268.5, which was amended at 53 Fed.
    Reg. 31211. This Section allows case-by-case extensions to effective dates
    for bans. In an earlier Docket, the Board incorporated the USEPA procedures
    by reference, and provided that USEPA extensions are to be deemed Board
    extensions. It is unlikely that the Board could respond to these short-term
    USEPA extensions within the lifetime of the extension. The Board has updated
    the incorporation by reference.
    Section 728.106
    This Section is drawn from 40 CFR 268.6, which was amended at 53 Fed.
    Reg. 31211. This Section concerns petitions to allow ‘and disposal of a
    restricted waste. In an earlier Docket, the Board adopted these procedures as
    petitions for adjusted standards addressed to the Board.
    The amendments add Section 728.106(a)(4) and (5). The latter references
    ‘other laws” restricting waste disposal. The Board solicited conmnent as to
    whether there are any laws other than Section 39(h) of the Act and 35 Ill.
    Adm. Code 709 and 729, but received no response.
    These amendments bumped existing Section 728.106(a)(4) to (a)(5). This
    is a Board addition to the information requirements which was adopted in a
    previous rulemaking. The Board needs to know the permit sta’tus of the
    applicant. This is omitted from the federal information requirements, since
    USEPA, as the permitting entity, already knows this.
    Section 728.107
    This Section is drawn from 40 CFR 268.7, which was amended at 53 Fed.
    Reg. 31211. This Section concerns the waste analysis requirements for
    complying with the landfilling bans.
    Section 728.108
    This Section is drawn from 40 CFR 268.8, which was amended at 53 Fed.
    Reg. 31211. The USEPA Section allows certain generators and operators to
    103—209
    -32-
    avoid some bans under certain circumstances through May, 1990. Because of the
    short-term nature of this provision, the Board has incorporated the USEPA rule
    by reference, instead of setting it forth.
    The Board has added the incorporations by reference 1-itany to this
    Section. (JCAR)
    40 CFR 268.12 was also amended at 53 Fed. Reg. 31211. The Board has not
    adopted any equivalent to the USEPA schedules for regulating wastes, since
    these apply only to USEPA.
    Section 728.130
    This Section is drawn from 40 CFR 268.30, which was amended at 53 Fed.
    Reg. 31211. This Section concerns the prohibitions on solvent wastes, which
    were adopted in a previous Docket.
    The USEPA rules include many dates which have already passed. These
    dates have generally been omitted from the Board rules. New bans whose dates
    have passed will become immediately effective as State rules as soon as the
    rules are filed.
    As is discussed below, in order to comply with codification requirements,
    Tables CCW and CCWE have to be separated from the governing Sections and made
    Tables A and B.
    These Sections contain many references to CERCLA response and RCRA
    corrective actions wastes. In a previous Docket, these terms were defined in
    Section 728.102, which is not involved in this rulemaking. These references
    are somewhat more complicated at the State level, since they have to deal with
    CERCLA and RCRA wastes from Illinois sites, other authorized states and USEPA
    administered programs. These problems are localized in the definitions.
    Section 728.131
    This Section is drawn from 40 CFR 268.31, which was amended at 53 Fed.
    Reg. 31211. This Section prohibits landfilling of certain dioxin—containing
    wastes. The amendments extend the compliance date for certain dioxin-
    containing wastes which are soil and debris which result
    from CERCLA response
    or RC~Acorrective action.
    There are a number of minor editorial problems with this Section. The
    provision concerning soil and debris is in 40 CFR 268.31(a)(1). However, it
    is impossible to codify this provision in this format, since there is no
    subsection (a)(2). The Code Unit requires that there be at least two entries
    at a level of subdivision. This immediate problem is resolved by placing the
    soil and debris at the end of subsection (a). However, this creates
    difficulties in cross referencing. In the USEPA rule the exception in 40 CFR
    268.31(a)(1) is used as a defining Section for the waste in question. The
    Board has shifted the definition to subsection (b), which states the ban on
    dioxin contaminated soil and debris. The references to subsection (a)(1) have
    generally been changed to (b). Placing the definition in the exception is an
    editorial error by USEPA. The problem with this structure is illustrated by
    the cross reference in subsection (c) back to subsection (a)(1). This could
    103—2 10
    -33—
    be construed as extending the compliance date for the dioxin waste itself.
    Chemical Waste Management has pointed an editorial error in the
    proposal. (PC 6) The November 8, 1990 effective date for the ban in
    subsection (b) was omitted.
    Section 728.132
    This Section is drawn from 40 CFR 268.32, which was amended at 53 Fed.
    Reg. 31211. This Section bans the “California list” wastes. Note the 40 CFR
    268.32(b) and (c) are reserved Sections.
    The main purpose of the amendment appears to be to extend the compliance
    date for CERCLA response and RCRA corrective action wastes, as provided in
    Section 728.132(d).
    Chemical Waste Management has pointed out an editorial error in
    subsection (d)(1). (PC 6) This subsection sets a November, 1989, ban date
    for wastes which are not CERCLA wastes. CERCLA wastes are extended to
    November, 1990, as provided in subsection (d)(2).
    Existing 40 CFR 268.32(e) bans certain chlorinated solvents effective
    July 8, 1989, the date reflected in Section 728.132(e). The amendment appears
    to accelerate this ban to November 8, 1988. If adopted by the Board at this
    time, this would be a retroactive ban. Since even the July date will be
    passed before these rules are final, the Board has made this ban immediately
    effective as a State rule on filing. A similar problem has also been
    addressed in subsection (f). Note that the chlorinated solvents ban will have
    little effect in Illinois, since these wastes are already prohibited in 35
    Ill. Adrn. Code 729, adopted in R81-25.
    Section 728.133
    This Section is drawn
    from 40
    CFR
    268.33,
    which
    was amended at 53 Fed.
    Reg. 31211. This
    is a new Section which bans the “First third” wastes.
    Section 728.140
    This Section is drawn from 40 CFR 268.40, which was amended at 53 Fed.
    Reg. 31211. It concerns the applicability of the treatment standards of this
    Subpart.
    Section 728.141 (not amended)
    This Section is drawn from 40 CFR 268.41, which was amended at 53 Fed.
    Reg. 31211. However, the amendments concern only Table CCWE, Constituent
    Concentrations in the
    Waste Extract. For
    codification reasons, these had to
    be adopted as Table A, which appears at the end of the Part as though it were
    an appendix.
    Section 728.142
    This Section is drawn from 40 CFR 268.42, which was amended at 53 Fed.
    Reg. 31211. This
    Section contains treatment standards expressed as
    certain
    103—2 11
    -34-
    technologies. The amendment authorizes treatment of certain halogenated
    organic solvents by burning in boilers or industrial furnaces, “in accordance
    with applicable standards”.
    Section 728.143
    This Section is drawn from 40 CFR 268.43, which was amended at 53 Fed.
    Reg. 31211. This Section sets standards for land disposal by setting
    concentration limits in the waste itself, as opposed to Section 721.141, which
    sets standards for constituents in an extract. Most of the text of this
    Section consists of Table CCW, Constituent Concentrations in Waste. It is
    impossible to place this table into the text of the
    Section and meet
    codification requirements. It has therefore been factored out and presented
    as Table B, which will appear at the end of the Part.
    Section 728.144
    This Section is drawn from 40 CFR 268.44, which was amended at 53
    Fed.
    Peg. 31211.
    This Section concerns “variances” from treatment standards. In a
    previous Docket the Board adopted these as adjusted standards using the
    mechanisms of Part 106.
    The amendments add subsections (h) through (1),
    which
    add procedures for “site specific variances”. These too appear to be
    appropriate for adoption as “site-specific adjusted standards”.
    The USEPA rule includes language which appears to function appropriately
    as a “justification” for an adjusted standard. 40 CFR 268.44(h) requires the
    person seeking the “variance” to demonstrate that, “because the physical or
    chemical properties of the waste
    differs significantly from the waste analyzed
    -in developing the treatment standard, the waste cannot be treated to specified
    levels or by the specified methods.” This is a classical square peg, round
    hole justification for an adjusted standard.
    The USEPA rule includes a requirement that the applicant include the
    information required for a
    IJSEPA
    regulatory petition in 40 CFR 260.20. This
    language is not included in the text of the equivalent 35 Ill. Adm. Code
    720.120, and hence must be incorporated by reference. The Board has added an
    incorporation to Section 720.111, discussed above.
    40 CFR
    268.44(k) has an additional information
    clause which is doubly
    contingent: USEPA may (or may not) request additional information which may
    (or may not) be required to evaluate the application. This has been rendered
    as “the Board will request any additional information or samples which the
    Board determines are necessary to evaluate the application.”
    Section 728.150
    This Section is drawn from 40 CFR 268.50, which was amended at 53 Fed.
    Peg. 31211. This Section prohibits storage of hazardous waste to evade the
    landfilling bans. A reference to Section 728.106
    has been added to subsection
    (d).
    Appendices
    There are no amendments to the Appendices, which incorporate the USEPA
    103—212
    -35-
    Appendices by reference. The Board has updated the references to the current
    CFR Edition anyway.
    Table A
    This is Table CCWE from 40 CFR 268.41, which was amended as discussed
    above. The amendment adds treatment standards, expressed as a concentration
    in the waste extract, for the First Third wastes. As discussed above, this
    Table cannot be presented within the text of Section 728.141 in the
    codification format. To help avoid confusion, the Board has added the
    acronym/federal table number “CCWE” to the heading of the table.
    USEPA has pointed out an error for the entry for silver under the FOO6
    heading. The correct number is “0.072”.
    Table B
    This is a new table derived from Table CCW in 40 CFR 268.43. This
    contains treatment standards expressed as a concentration in the waste itself.
    This Opinion supports the Board’s Order of this same day. The Board will
    withhold filing of
    the final rules until October 13, 1989,
    to allow motions
    for reconsideration by the agencies involved in the authorization process.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control B a~4~Jiereby
    certify that the above Opinion was adopted on the /J~day of
    ______________
    1989, by a vote of 7—C
    Dorothy M. Gu,ii~’,Clerk
    /4
    Illinois Polhition Control Board
    103—213

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