ILLINOIS POLLUTION

CONTROL BOARD

December 15,

1983

In the

matter of:

TECHNICAL CORRECTIONS

)

R83-24

TO PHASE

II RCRA RULES

FINAL ORDER.

ADOPTED RULE

OPINION OF THE BOARD

(by

D.

Anderson):

On November

3,

1983 the Board opened this docket for

the purpose of reviewing technical errors in the Phase II

RCRA rules adopted

in R82-19 on July

26,

1983,

and filed

October

12,

1983

(7

Iii.

Req.

14015)

These problems had

been raised

by way of a motion for reconsideration filed by

Illinois Power Company in R82--~i9,

That participant has

appealed the Board~sdecision, complaining in part of the

technical errors

to be addressed in

this

docket.

The Board set November 30

as the final date for comments

on the suggestions made by Illinois Power and the additional

problems noted in the Board~sOrder.

The Board received

comments from Illinois Power and from the Illinois Environ-

mental Protection Agency

(Agency).

Effective Date

of

Part 703

Illinois Power~smain objection concerned the delayea

effective date for portions of Part 703.

In particular,

the

delayed effective date

of

Section 703,181 left the rules

with no specification of

the

information which would have to

be provided to the Agency to qualify

for

interim status.

Thus it could be argued that a facility which changed its

process

so as to come into the RCRA program for the first

time would be unable to acquire interim status.

The Board notes that,

in addition to Illinois Power’s

problems with Section 703.181,

the concept of

a contingent

delayed effective date of the rules seems

to

conflict with

the concept of “effective date”

as used by the Secretary of

State’s office.

It would be better to say that the rules

are “effective”

immediately, but they will be inoperative

until the Agency gets the authority to issue RCRA,

and

tJIC,

permits.

Accordingly, Section 700.106 has been amended to

state that the provisions concerning Parts

702,

704 and 705

with delayed effective dates

will be

effective as of

t.he

date of the amendment, but with provisos limiting issuance

of permits.

55-313

---

The main source note

to Part 703

indicated that it was

effective

immediately,

in conflict

with

the provisions

of

Section 700,106.

This will be left,

and Section 700.106

will be modified to state that

Part

703 became effective on

October 12, 1983.

The main source note

of Part 724 and

Section 700.106 both

indicated that it was

effective immedi-

ately.

Parts

724 and 730 will apply only to facilities with

permits,

so that they

will also

be inoperative until the

authorizations are issued.

Federally Issued Permits

Section 703,127 was added pursuant to comments received

from the United States

Environmental

Protection Agency

(USEPA),

This provided

that RCRA

permits issued

by

USEPA

would

constitute

RCRA permits within the

meaning

of

Section

21(f)

of

the

Environmental Protection Act

(Act).

Since

this

was added

pursuant

to comments,

there was

no

opportunity

for

others to comment

on its addition.

The

Agency

has

pointed out that this would

create

a loophole in the local

siting approval process of Section

39(c)

and

39.2 of the

Act.

It might be asked at

the

outset whether

local government

approval is required for RCRA facilities,

Section 39(c)

requires approval

for

a “new regional pollution control

facility”.

Section

3 of

the Act defines

“regional pollution

control

facility”

as

including

a “waste disposal site”, with

no

special reference

to hazardous waste,

or to the

specific

permit requirements

in Sections

21(d)

or 21(f).

However,

“new regional pollution

control facility”

includes

a

site

permitted to receive

hazardous waste for the

first time,

It

thus

appears

that

local

government

approval is required

foi~

hazardous

waste

facilities,

Since Section

21(d)

does

not

apply

to

hazardous

waste,

this infers

that

Section

21(f)

RCRA

permits

require local

government approval,

The Board

has

repealed Section 703.127,

Sites

with

federally

issued

RCRA permits will have to obtain RCRA

permits from the Agency also.

Dual Permits

Section 700,501(b),

as amended in R82-l9, provided that

owners

and operators with

actual RCRA

permits

need

to obtain

“Chapter

7”

permits

(Sections 807,201 and

807.202) only for

units which accept

nonhazardous waste,

The Agency objects

to this on several grounds.

It should be noted that this

provision was in the

proposal, but drew

no comment from the

Agency,

It was adopted with

changes

only to make it

clear

that the on-site disposal

exceptions for the

general waste

permits were to be

continued.

Part of the Agency’s objections stem from the interaction

with Section 703.127,

which could serve to

create a loophole

55~314

---

—3—

in the local

government siting approval.

The Board has

modified Section

703.127 to remove this difficulty.

Another part

of the Agency’s objections

is

that the

Board cannot

repeal the existing Section 807,201 permit

requirement

for hazardous waste facilities without

conducting

a full rulemaking

pursuant to Section 22.4(b)

of the

Act.

However,

the

legislature has directed the

Board

to

do

so

in

the same legislation

which adopted Section 22,4,

This

legislation

provided that the general waste permit

require-

ment did not apply

to hazardous waste.

Section

22,4(a)

contains

implied authority for the hoard to modify

its

existing

requirements to make them correctly state their

relationship

with the RCRA. program.

It is

true

that, under the Phase

I RCRA

rules,

the

Board continued

the

general waste permit requirement

under

Section

700,501 during interim authorization.

However,

this

was in

recognition

of the fact that actual RCRA

permits

could not have

been issued, with the result that the

state’s

existing hazardous

waste programs would have been

dismantled

before the

RCRA program was

in place, which was

obviously

contrary to

the legislative intent.

However, with full RCRA

authority, the

dual permit system will not be

necessary,

and

contrary to the legislative intent.

As adopted,

Section 700.501 was

to be effective as

provided in Section

700.106.

However, there is

no provision

for a delayed effective date

in that Section.

It was

intended

that the change should become effective with the final

authorization.

Accordingly, the Board will amend

Section

700.501

to restore as paragraph

(b) (2)

the language

adopted

in

R8l-22, up to the final authorization.

The language

adopted in

R82-l9 will be paragraph

(b) (1)

and come

into

play after

final authorization,

Section 703.153

In its

comments Illinois Power pointed out an

incorrect

cross

reference in Section 703,152(b),

This has been

rected,

Conclusion

The Board

will adopt the amendments

discussed above in

a separate

Order,

The text of the amendments will be

attached

to the

Order and will appear in the Opinion volumes,

The

Board will adopt

these amendments pursuant to Section

22.4(a)

of the Act.

Hearings

and full procedures under the

Adminis-

trative Procedure Act

will not be required,

This Opinion

constitutes the Board’s

findings of

fact

and conclusions

of law in this matter,

55-315

---

I, Christan L,

Moffett, Clerk of the Illinois

Pollution

Control Board, hereby certify that the above Opinion

was

adopted

on the ~j~day

of

~

1983

by a vote

of

~

Tofth~re~

Illinois

Pollution

Control Board

55 31.6