ILLINOIS POLLUTION CONTROL BOARD

May 14, 1991

IN THE MATTER OF:

CERTAIN HAZARDOUS WASTES FROM

)

R91-ll

PRIMARY ZINC SMELTING AND

)

(Emergency rulemaking)

REFINING,

35 Ill.

Adm.

Code

)

(see also PCB 91-61)

721.104(b) (7) (U)

SECOND INTERIM ORDER OF THE BOARD by

3.

Anderson):

On May

6,

1991,

the Board adopted an Interim Order

authorizing the circulation

of

a draft emergency rule,

with

a

request

for

comment

by noon,

May 13,

1991, particularly from the

United States Environmental Protection Agency (USEPA),

the

Illinois Environmental Protection Agency

(Agency) and Big River

Zinc Corp

(Big River

Zinc).

It was

thought

that

th.e emergency

rule might potentially grant relief to Big River

Zinc,

as was

explained

in

the PCB 91—61

Interim Order

of May 6,

1991,

in which

the Board denied Big River’s motion for stay.

Comments were

received from the Agency,

~hich

included a May

9,

1991,

letter

to

the Agency

from Marc

M.

Radell, Associate Regional Counsel,

Region

5, USEPA

(PC#l);

Big River

Zinc

(PC#2);

and the USEPA,

Region

5,

by William E.

Muno, Associate Director

for RCRA Waste

Management Division

(PC#3).

The Board will

rely on Mr. Muno’s

comment to the Board

(PC#3)

as the formal comment

of

the USEPA,

Region

5.

In

its May

6,

1991 Interim Order,

the Board stated,

“The

Board’s intent

in taking the unusual step of circulating

a draft

order prior

to formal action is

to seek guidance

in an unusual

situation.”

The situation remains unusual,

as well as unclear.

After

reviewing the comments,

we have concluded that further

clarifying comments are needed from the Agency and Big River

Zinc, particuThrly

in response

to the USEPA’s comment.

In so

saying, we wish ~o state that we recognize that comments filed

simultaneously and on short notice risk a certain amount of

“talking past each other”,

as appears to have occurred here.

We believe that USEPA’s comment has served to clarify one

issue of great concern

to the Board,

i.e.

that the “draft

emergency rule

is acceptable”,

that

it

“will not conflict with

the Federal program and that

it will not provide

for

less

stringent. standards than

the Federal rules.”

(PC#3,

p.

1,3).

We

also believe

that the USEPA’s underlying reasoning and its

assessment of Big River

Zinc’s situation

provides

a focus

for the

questions still

remaining.

122—223

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—2—

First, however, we wish

to make the following comments from

our perspective.

The Board will not change the language of the draft

emergency rule for two reasons:

(1)

it

is acceptable

to the

USEPA, and

(2),

the fast—track provisions

in Sections 22.4 and

7.2 of the Environmental Protection Act

(Act)

require the Board

to adopt

rules

identical in substance

to the federal regulations,

no more and no less,

irrespective of the timing of the

authorization process.

It stands

to reason that the Board will

not construe the status of a federal regulation differently from

that of the USEPA.

In its com~-nent,USEPA states

its position on the status of

the K066 wastes resulting from the court’s remand of American

Mining Congress

v.

EPA,

907

F.

2d 1179

(DC 1991).

USEPA asserts

that “Thus,

this decision did not

result

in a court rejection of

the regulation.

Because of this,

U.S.

EPA Region V assumes the

regulation has not been stayed.”

PC#3,

p.

2,

emphasis

in

original.

We construe the USEPA’s

statement as meaning that

it

has concluded that the rule terminating the K066 exclusion

is

still

“alive”,

but that whether the rule is effective and thus

must be complied with during the remand, specifically by July

1,

1991,

is based on an assumption.

USEPA also states,

“Although

it

is not clear wtiether

or not the Federal

regulation has been

stayed,

U.S. EPA Region V agrees

that,

in either event,

the

language of the emergency rule would not be

in conflict with,

or

in contravention of,

the Federal RCRA program.”

PC#3,

p.2.

We believe that the only relief

that might flow from the

emergency rule is directly related to the federal “stay”

question. The draft emergency rule would do away with the “lag”

time between a change

in the status of the effectiveness

of the

federal rule and the time the Board can amend the separately

enforceable identical

in substance state

rule.

The USEPA stated

it precisely as follows:

“If

the Federal regulation

is stayed,

then the draft

language,

as constructed, would delay

the

termination of

The exclusion until the stay was lifted or the

regulation was withdrawn.

If

the rule was eventually withdrawn,

the language allows the extension of the exclusion to

continue.”

PC~3,p.2

The only other circumstance we can

suggest

that miqht deay

the termination of the exclusion

is

if

the USEPA were ~o reverse

its assumption that the

rule has not

been stayed.

In any ~vent, we note that this relief would only

last

for

150 days,

the time limit

of an emergency

rule.

Now to the questions.

Where

a specific request

to respond

is made,

it

is not intended to restrict others from responding.

1.

Has the issue

of whether

or not there

is

a stay been raised

before

the court

in the American Mining Congress case

or any

other case?

If not,

has the

time to raise

this

issue

122—224

---

—3—

elapsed?

We request Big River

Zinc in particular to address

this question.

2.

Has the need for,

and justification for, an emergency rule

changed in light of the USEPA PC#3 and the Board comments

above?

3.

Why does the draft emergency rule have any environmental

effects?

Since it

is drafted so as to be neither more nor

less stringent than the USEPA rule, would not environmental

effects flow from the status of the federal rule?

We

request the Agency

in particular to address this question.

4.

What advantage would a 150 day emergency rule have over the

Board Opinion in R90—2,

p.

1 and 2, August

9,

1990, where

it

states:

“However,

the Board views

the federal court opinion

as applying

to the derivative Board rule pending Board action

in adopting the USEPA revisions resulting from the court

opinion.

(R86—44,

12/3/87,

84 PCB 89,

127). ..This exclusion

will terminate on June

30,

1991,

the last day on which the

Board can adopt

the “Bevill amendment” exclusions consistent

with federal

law..

.

In the event

the remand uncertainty

is not

resolved by that date,

the Board will regard the decision

in

American Mining Congress as binding to the extent

applicable

to the Bevill amendment exclusions.”

Would this language be

more suitable

with

some extra “wordsmithing”?

We

request Big

River Zinc in particular

to address this question.*

5.

Does the support

for

the emergency on p.

1

of the draft order

as regards the “uniqueness” of Big River’s situation need to

be changed or eliminated?

The comments must

be filed by noon, Tuesday,

May

21.

As

before, we authorize the filing

of comments by telefax, provided

that any telefax filing

is followed by the filing

of

a typescript

original and

9 copies.

IT

IS SO ORDERED.

*

Discussions of Big River

Zinc

in other RCRA Update Opinions

are:

R89—l,

9/13/89,

~.

17,18;

R89—l,

10/18/89;

R90—2,

7/3/90,

p.

9,13,14;

R90—lO,

8/30/90,

p.

12,13.

122—225

---

—4—

I, Dorothy M. Gunn, ClerK of the Illinois Pollution Control

Board, hereby certify that

the above Second Interim Order was

adopted on the

J’/~7-’

day of

_____________

,

1991, by a vote

of

‘~1~~ô

.

C”

/~

Dorothy M.(~unn,Clerk

Illinois P~llutionControl Board

122—226