ILLINOIS POLLUTION CONTROL BOARD

May 18, 1995

IN THE MATTER OF:

)

R95—4

UIC

UPDATE,

 USEPA REGULATIONS

)

 (Identical-in—Substance Rules)

(7—1—94 THROUGH 12—31—94)

)

IN THE MATTER OF:

)

R95—6

RCRA UPDATE, USEPA REGULATIONS

)

 (Identical in Substance Rules)

(7—1—94 THROUGH 12—31—94)

)

Request for Additional Comment.

ORDER OF THE BOARD

 (by E.

 Dunham):

The Board proposed 409 pages

 of amendments to the Illinois

RCRA Subtitle C and UIC regulations by our opinion and order of

March 2,

 1995 in this docket.

 Notices of the proposed amendments

appeared in the Illinois Register on March 24,

 1995.

 The public

comment period ended May 8,

 1995.

 The Board was prepared to

adopt all of the amendments involved in this docket today,

as

promised in our January 11 order granting expedited

consideration.

 This adoption would have included the Phase II

LDRs and the Subtitle CC air emissions amendments to the RCRA

Subtitle C rules.

This matter is before the Board on two motions recently

filed.

 The Board further received two related public comments.

As detailed below,

 the motions and comments request the Board

 delay adoption of

 certain of the amendments.

MOTIONS AND COMMENTS REQUESTING A STAY

The Chemical Industry Council of Illinois (CICI) filed a

“motion to stay”

 on May 8,

 1995.

 That motion requests that the

Board

stay

further

action

the

“RCRA

Subpart

CC”

amendments

adopted

U.S.

EPA

 December 6,

1994.

These

amendments,

which

impose requirements relating to the control of organic material

emissions from tanks,

 containers, and surface impoundments,

primarily involve new subparts CC of 40 CFR 264 and 265.

The

Board proposed these amendments as 35 Ill.

 Adm. Code 724.Subpart

CC and 725..Subpart CC.

CICI states that the Chemical Manufacturers Association

(CHA) recently filed a suit in federal court, Chemical

Manufacturers Association v.

 EPA, No. 95—1143

 (D.D.C.),

challenging the validity of the Subpart CC amendments and that a

separate, unspecified suit involving these rules is also pending.

CICI states that due to these actions “and other confusion

surrounding the promulgation of the RCRA Subpart CC amendments”,

U.S. EPA has stated that it will delay their effective date by

six months, until December 6,

 1995, and that U.S. EPA will

2

publish corrections in the Federal Register.

 CICI states, and

Board staff has verified, that the RCRA/Superfund Hotline in

Washington,

 D.C. and the docket information contact in Research

Triangle Park, North Carolina give recorded messages announcing

U.S.

 EPA’S intent to delay the effective date of the federal

amendments by an announcement in the Federal Register “within the

month”.

CICI requests that the Board stay that portion of this

docket relating to the Subpart CC amendments due to the confusion

relating to the underlaying federal amendments.

 It states that

delay would allow the Board to incorporate any clarifying federal

corrections or changes, thus “alleviating the need for an

emergency rulemaking to incorporate these changes at a later

date”.

 The motion recites that Sections 7.2 and 22.4(a) of the

Act require the Board to adopt amendments within one year,

 and it

allow us to engage in our common practice of “batching” RCRA

Subtitle C amendments into six month update periods.

 CICI notes,

however, that the Act does not require “batching”.

 dcl urges

the Board to sever the Subpart CC amendments and delay action to

adopt them until one year after the date U.S. EPA adopted the

amendments upon which they are based——i.e., until December

6,

1995.

The Illinois Environmental Regulatory Group

 (IERG)

 filed a

motion in support of the CICI motion for stay on May 9,

 1995.

IERG notes that on January 11,

 1995 the Board granted expedited

consideration of the amendments involved in this docket in

response to their motion filed January 6.

 The focus of IERG’s

interest was in the September 19,

 1994 Phase II land disposal

restrictions

 (LDRs), which are an independent subject matter from

the December 6,

 1994 Subpart CC amendments.

 IERG states that it

supports the CICI motion to stay the Subpart CC amendments.

It

requests that the Board adopt the amendments proposed in this

docket without delay,

 except that the Board sever the Subpart CC

amendments and stay that portion.

In addition to these two motions, the Board has received two

public comments that request essentially similar action to

delaying the effectiveness of the Subpart CC amendments.

 PC 3,

received May 8,

 1995 from Robert Burke III, Manager, Regulatory

Affairs, Chemical Waste Management

 (CWM), urges delay because

U.S. EPA is “reevaluating the amendments for clarification and

applicability”.

PC

 3 reiterates that U.S. EPA has announced its

intent to delay the effective date of the amendments until

December 6,

 1995 and to amend them “during the next several

months”.

CWM

recommends that the Board remove the Subpart CC

amendments from this docket and proceed to adopt the September

19,

 1994 and January

3,

 1995 Phase II LDRs.

PC

5,

 received May

9,

 1995 from Charles T. Eifler, General Manager, Trade Waste

Incineration

 (TWI), Division of CWN, similarly urges Board delay

in the adoption of the Subpart CC amendments until U.S. EPA

3

“makes all necessary amendments”, while requesting that the Board

proceed to adopt the Phase II LDR5 without delay.

DISCUSSION

The motions for stay raise important issues that must be

resolved before the Board proceeds.

 Neither the dId

 motion for

stay nor the IERG motion in support cite precisely which of the

proposed amendments they want severed from the docket.

 Not all

the federal amendments of December 6,

 1994 appear to be limited

to Subpart CC; some appear to involve the earlier Subparts AA and

BB air emissions rules.

 Further, neither motion addresses how

long the Board should defer action on the Subpart CC amendments.

As cited by dId, the Board must vote to adopt the amendments by

December

6,

 1995.

 The Board must do this so that the amendments

are filed with the Secretary of State before that date.

 This

would require the Board to repropose the amendments no later than

August 3,

 1995 to assure publication in the August 25 Illinois

Register.

 This would result in a public comment period that ends

on October 9,

 1995,

 so the Board could vote to adopt the

amendments on October

 19, with the 30—day hold for U.S. EPA

comment ending on November 18,

 1995.

At this time,

 it appears that the only action that U.S. EPA

has committed itself to undertake is to delay the effective date

of the federal Subpart CC regulations.

 Even if U.S. EPA

undertakes to amend anything other than the effective date

between now and December 6, Sections 7.2 and 22.4(a)

 of the Act

would require the Board to adopt the December

6,

 1994 Subpart CC

amendments before the above deadlines, so they become effective

within one year.

 Later amendments,

 in turn,

 would have their own

one—year deadline for adoption, although the Board could

foreshorten the time for adoption in response to an appropriate

request submitted after U.S. EPA takes the further action.

Any

later amendments or corrections would not affect the December

6,

1995 deadline for action on the base Subpart CC rules.

 The same

is true with regard to any pending litigation in federal court.

In the past, when later corrections and amendments have

affected the regulations, the Board has attempted to accommodate

the issues raised while still fulfilling our mandate to adopt

regulations within one year from the date of U.S. EPA’s

rulemaking action.

 Thus, we have accelerated the timing on later

amendments and corrections,

 as we have done in this docket with

 regard to the January

3,

 1995 Phase II LDR corrections.

 We have

also added Board notes indicating the existence of a federal

stay, as with the wood preserving rules in R91—1, or a federal

judicial decision that vacated the rules,

 as with regard to the

American Mining Congress case and the K066 listing, also in R91-

1.

 These actions have consisted of adding language to the

regulations by way of a Board Note that explains the problems

with the underlying federal regulation and which explains that

4

the Board does not intend that the state regulation have any more

effect than the corresponding federal regulation.

Based on the information before the Board with regard to the

federal delay, and in the absence of the two motions to sever and

delay the Subpart CC amendments, the Board would be inclined to

adopt the amendments,

 following our traditional course of noting

problems with the rules at the federal level.

 Thus, we would be

inclined to revise the amendments as follows (revisions

highlighted):

Section 724.980

 Applicability

~_)_

 The requirements of this Subpart a~ly

~

 to owners

and oDerators of all

facilities that treat,

 store.

 or dispose of

hazardous waste in tanks. surface impoundments. or

containers subject to 724.Subparts

I.

 J. or K.

except as Section 724.101 and subsection (b~below

i~rovideotherwise.

.~.

~

‘L~’

1~4)

~

~O\~

—~

,~e

~

~

Section 725.980

 Applicability

The requirements of this Subpart a

to owners and operators of all

facilities ?h~at”~treat,store,

 or dispose of

hazardous waste in tanks, surface impoundments.

or

containers subject to either 725.Subparts I. 3.

or

 except as

Section

 725.~ç~1and subsection

(b)

below provide otherwise

.

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 ç~~se

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 ~U1~4

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f~4era1

This

would

give

the

regulated

community

 Illinois the benefit

of all that

immediately

foreseeable

 in the way of federal

action on the regulations.

 There is simply no way of telling at

this time when any litigation involving the amendments would

conclude and what its outcome might be.

 Similarly, there

 is no

way of telling when U.S. EPA might amend the Subpart CC rules.

This action would avoid the need for severing the amendments

while granting the latest possible effective date allowed under

the Board’s legislative mandates.

REOUEST FOR ADDITIONAL COMMENTS

In order that the Board might dispose of the amendments and

the pending motions at our regularly-scheduled meeting of June 1,

1995, participants,

 especially dId,

 IERG,

 CWN,

 TWI, and the

Agency, are requested to address the following issues and respond

to the Board no later than May 25,

 1995:

1.

 What,

 if any,

 indications are there that U.S. EPA will

amend

or correct the Subpart CC regulations between now and

December

6,

 1995 to do anything other than delay the

effective date?

2.

 Would inserting the delayed effective date into the

amendments and adopting them at this time satisfy the intent

of the motions and comments by delaying the effective date

until as late as the Board can allow?

3.

 Would including the added Board Notes adequately address

 concerns relating to any future U.S. EPA amendments or the

outcome of any federal litigation?

4.

 If the answers to questions

 2 and

 3 are no, exactly what

segments (Sections and/or subsections)

 of the approximately

410

pages

 of amendments should the Board stay?

 ORDERED.

I, Dorothy M.

 Gunn, Clerk of the Illinois Pollution Control

Board, cert~i~y

 that the above order was adopted by the Board on

the

/Y~

 day of

____________,

 1995,

 by a vote of

~

Dorothy M. 9~nn,Clerk

Illinois Po~I(lutionControl Board