ILLINOIS POLLUTION CONTROL BOARD
June 1,
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,
)
1—3—95
& 5—19—95)
)
Adopted Rule.
Final Order.
OPINION OF THE BOARD
(by E. Dunham):
Pursuant to Section 13(c) and
22.4(a)
of the Environmental
Protection Act
(Act)
415
ILCS 5/13(c)
& 22.4(a)
(1992),
the
Board amends the RCRA Subtitle C hazardous waste
(RCRA)
and
underground injection control
(UIC) regulations.
(See
“Consolidation of Dockets” below.)
Section 22.4(a) provides for quick adoption of regulations
that are “identical in substance” to federal regulations adopted
by U.S. EPA to implement Sections 3001 through 3005 of the
Resource Conservation and Recovery Act of 1976
(RCRA,
42 U.S.C.
§5
6921—6925) and that Title VII of the Act and Section
5 of the
Administrative Procedure Act
(APA)
5
ILCS 100/5—35
& 5-40
(1992)
shall not apply.
Section 13(c)
similarly provides with
respect to underground injection control regulations adopted by
U.S. EPA pursuant to Section 1421 of the Safe Drinking Water Act
(SDWA;
42 U.S.C.
S
300h).
Because this rulemaking is not subject
to Section 5 of the APA,
it is not subject to first notice or to
second notice review by the Joint Committee on Administrative
Rules
(JCAR).
The federal RCRA Subtitle C regulations are found
at 40 CFR 260 through 268,
270 through 271,
and, more recently,
279.
The federal UIC regulations are found at 40 CFR 144,
146,
and 148.
This opinion supports an order adopted on the same day.
The
Board will hold the adopted amendments for 30 days before filing
them with the Secretary of State,
in order to allow U.S. EPA to
comment on the adopted amendments before they are filed.
After
that time, the Board will file them, they will become effective,
and Notices of Adopted Amendments will appear in the Illinois
Register.
FEDERAL
ACTIONS CONSIDERED IN THIS RULEMAKING
This rulemaking updates the Illinois RCRA Subtitle C and UIC
rules to correspond with federal amendments made in the period
2
from July 1 through December 31,
1994.
The USEPA actions during
this period were as follows:
Federal Action
summary
59 Fed. Reg.
38536,
Exclusion from definition of solid waste
July 28,
1994
for certain in-process recycled
secondary materials used by the
petroleum refining industry
59 Fed. Reg. 43496,
Withdrawal of exemption from Subtitle C
August 24,
1994
regulation of slag residues from high
temperature metal recovery (HTMR)
of
electric arc furnace dust
(1061),
steel
finishing pickle liquor
(1062),
and
electroplating sludges (F006) that are
used in a manner constituting disposal
59 Fed. Reg.
47980,
Restoration of text from 40 CFR 268.7(a)
September 19,
1994
inadvertently omitted in the amendments
of August 31,
1993,
at 58 Fed. Reg.
46040
59 Fed. Reg. 47982,
Phase II land disposal restrictions
September 19, 1994
(LDRs):
universal treatment standards
for organic toxicity wastes and newly—
listed wastes
(including underground
injection control
(UIC)
amendments)
59 Fed. Reg.
62896,
Organic material air emission standards
December 6,
1994
for tanks,
surface impoundments, and
containers
(Subpart CC rules)
In addition to these principal amendments that occurred
during the update period, the Board included two additional,
later actions:
60 Fed.
Reg. 242,
Corrections to the Phase II land
January
3, 1995
disposal restrictions
(universal
treatment standards)
60 Fed. Reg. 26828,
Delayed effective date for Subpart CC
May
19,
1995
rules
The January 3 action was an amendment of the September 19,
1994
Phase II LDRs (universal waste rule).
U.S. EPA corrected errors
and clarified language in the universal treatment standards.
The
Board did not delay in adding these amendments for three reasons:
1)
The January 3,
1995 amendments were corrections and
clarifications of the September 19,
1994 regulations, and
not new substantive amendments;
3
2)
Prompt action on the January 3,
1995 amendments will
facilitate implementation of the Phase II LDR5;
and
3)
The Board received a request from the regulated community
that we add the January
3,
1995 amendments to those of
September 19,
1994.
(See “Expedited Consideration” below.)
The Board also notes that the January
3 amendments occurred
within six months of the earliest amendments included in this
docket, even if they occurred outside the nominal time—frame of
the docket.
We included the May 19 amendments because they
solely directly affect the effective date of principal amendments
within this docket.
PUBLIC COMMENTS
The Board proposed these amendments for public comment on
March
2,
1995.
Notices of Proposed Amendments appeared in the
Illinois Register on March 24,
1995,
at 19
Ill.
Reg. 3768
(Part
738),
3775
(Part 720),
3789
(Part 721),
3833
(Part 725),
3925
(Part 728),
4170
(Part 705), 4177
(Part 702),
4184
(Part 703),
4199
(Part 722),
4209
(Part 723),
4215
(Part 724),
4268
(Part
726),
4298
(Part 739),
and 4309
(Part 730);
a Notice of Proposed
Repeal appeared on March 24,
1995,
at 19
Ill.
Reg. 4163
(Part
700).
The Board received public comment on the proposal for
public comment for a period of 45 days following its publication
in the Recdster, until after May 8,
1995.
The Board received one public comment before commencing this
action and four additional comments during the comment period:
PC 1 U.S. EPA Region V (December 19,
1994,
by Norman R.
Niedergang,
Associate Division Director for RCRA,
Waste
Management Division)
PC
2 Secretary of State
(April 27, 1995,
by Connie Bradway,
Index
Department, Administrative Code Division)
PC 3 Chemical Waste Management, Inc.
(May 8,
1995, by Robert
Burke III, Manager, Regulatory Affairs)
Pc
4 Illinois EPA (Agency)
(May 8,
1995, by Susan Schroeder,
Associated Counsel)
PC 5 Trade Waste Incineration, Division of Chemical Waste
Management,
Inc.
(May 9,
1995, by Charles T. Eifler, General
Manager)
In PC
1, U.S. EPA thanked the Board for pointing out the
error in the federal RCRA Subtitle C rules
in citing the Spill
Control Contingency and Countermeasures regulations in six
4
locations.
The Board corrected that error in the preceding
RCRA
Subtitle C update docket, R94-17, but we docketed that comment in
this subsequent proceeding because we received the comment after
R94-17 had closed.
PC
I notes that U.S. EPA has additional
emergency preparedness and notification regulations at 40 CFR
355, under the Emergency Preparedness and Right-to-Know Act of
1986.
U.S. EPA suggested that we reference those regulations in
this proceeding.
We have not done so because it is unclear
exactly how U.S. EPA would intend to correct its regulations to
cite those rules.
Rather, we would prefer to wait until U.S.
EPA
makes the corrections and then follow its lead.
The other comments suggested corrections to the format,
punctuation, grammar, and spelling of the rules.
These are
outlined below in the segment of this discussion entitled “Public
Comment—Based Corrections”.
Briefly,
in PC
2, the Secretary of
State suggested a small number of corrections to the Illinois
Administrative Code format of the rules and the Illinois Register
Notices for them.
In PC
4, the Illinois EPA (Agency) highlights
a number of deviations from the text of the federal amendments on
which these amendments are based.
Finally, the Board received a
document entitled “Identical First Notice Line Numbered Version”
from the Joint Committee on Administrative Rules
(JCAR), which
lists a number of corrections to the text submitted to the
Secretary of State that were made by JCAR in inputting the
amendments.
Although we accepted most of the JCAR suggestions,
the Board could not make one of the corrections suggested by
JCAR.
We could not change “70.” to “70.0” for zinc in Section
721.103(e) (2) (C) (ii) because this is a substantive change due to
the additional significant digit.
On other suggestions
(generally denoted by “J,B”
in the above table), the Board used
some variation based on the JCAR suggestion.
Finally,
in PC 3, from Chemical Waste Management, Inc.
(CWM), and PC 4, from Trade Waste Incineration
(TWI), the
commenters request delay in adoption of certain segments of the
amendments.
Both comments suggest that U.S. EPA intends to delay
the effective date of the 40 CFR 264, Subpart CC and 265, Subpart
CC air emissions regulations for hazardous waste tanks,
containers, and surface impoundments.
They state also that U.S.
EPA has expressed its intent to amend those rules.
The comments
observe that if the Board adopts the Subparts CC regulations and
U.S. EPA later amends the federal rules,
the Illinois regulations
could wind up more stringent than the federal rules.
The issue
of delay was also raised by two motions filed with the Board.
The delay is discussed below on page 5.
The Board will delay filing any adopted rules with the
Secretary of State for 30 days after adoption, particularly to
allow U.S. EPA review.
The complete text of the adopted
amendments appears in a separate order adopted this day.
5
EXPEDITED CONSIDERATION
Prior to commencing work on the present amendments,
the
Board had already received filings in this docket, although we
did not docket these as public comments.
The Illinois
Environmental Regulatory Group
(IERG) filed a motion for
expedited adoption of the September 19,
1994 federal universal
treatment standards amendments on January
9,
1995.
That motion
represented that the Illinois Environmental Protection Agency
(Agency)
agreed.
The Board granted that motion by an order dated
January
11,
1995, requested clarification of whether the request
contemplated inclusion of the January 3,
1995 corrections.
In a
response filed January 24,
1995,
IERG stated that it wanted the
Board to include those amendments.
These amendments represent a significant effort on the part
of the Board to act as promptly as possible, given the magnitude
of the amendments included in this docket and the issues raised
by the motions to sever the Subpart CC amendments, discussed
below.
Although at the time of our March
2,
1995 proposal for
public comment the Board anticipated adopting these amendments at
our regularly—scheduled meeting of May 18,
1995 and filing them
with the Secretary of State 30 days later, we were not able to do
so.
The issues raised by the motions to defer action on the
Subpart CC rules required us to instead issue an order on May 18
requesting additional infomation.
This delayed adoption of these
amendments until today.
SEVERANCE
AND
DELAY OF SUBPART CC AIR RULES
The Board received a “motion to stay”
from the Chemical
Industry Council of Illinois (CICI)
on May 8,
1995.
That motion
requested that the Board stay further action on the federal
December 6,
1994 RCRA Subpart CC amendments.
Those amendments
impose requirements relating to the control of organic material
emissions from tanks, containers,
and surface impoundments,
effective June 6,
1995.
They primarily involve new subparts CC
of 40 CFR 264 and 265.
In our March
2,
1995 opinion and order,
the Board proposed those amendments as 35 Ill. Adm. Code
724.Subpart CC and 725.Subpart CC.
CICI stated in its motion that the Chemical Manufacturers
Association
(CMA)
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.
It
further said that a separate, unspecified suit involving these
rules was also pending.
CICI related further that due to these
actions “and other confusion surrounding the promulgation of the
RCRA Subpart CC amendments”, U.S. EPA has informally announced
that it will delay the effective date of the Subpart CC rules by
six months,
until December 6,
1995.
CICI also repeated that U.S.
6
EPA will publish corrections to the rules
in the Federal Register
at some unspecified time in the future.
On May 8, Board staff
verified that the RCRA/Superfund Hotline in Washington,
D.C.,
800-424—9346, and the docket information contact in Research
Triangle Park, North Carolina,
919-541-2363. gave 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 next month”.
CICI requested that the Board stay that portion of this
docket relating to the Subpart CC amendments due to the confusion
relating to the underlying federal amendments.
It stated 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 recited that Sections 7.2 and 22.4(a)
of the
Act require the Board to adopt amendments within one year,
allowing us to engage in our common practice of “batching” RCRA
Subtitle C amendments into six month update periods.
CICI noted,
however, that the Act does not require “batching”.
CICI urged
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.
IERG filed a motion in support of the CICI motion for stay
on May 9,
1995.
IERG noted 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 supported the CICI motion to stay the Subpart CC amendments.
It requested 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 of this rulemaking.
In addition to these two motions, and as briefly discussed
above,
the Board received two public comments that requested
essentially similar action with respect to the effective date of
the Subpart CC amendments.
PC
3, from CWN, urged delay because
U.S. EPA had announced its intent to delay the effective date of
the amendments and to revise them.
CWM
recommended 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, from TWI, similarly urged the Board to delay the
adoption of the Subpart CC amendments but to adopt the Phase II
LDR5 without delay.
The Board issued an order on May 18,
1995,
requesting
clarification of certain issues raised by the motions and
comments:
7
1.
What,
if any, indications there were that U.S. EPA would
amend or correct the Subpart CC regulations before December
6,
1995 to do anything other than delay the effective date?
2.
Would inserting the delayed effective date of December 6,
1995 into the amendments and adopting them in this docket
together with the rest of the July
1 through December 31,
1994 federal amendments satisfy the intent of the motions
and comments by delaying the effective date until as late as
the Board could allow?
3.
Would including the added Board Notes adequately have
addressed 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 have stayed?
The Board explained in the May 18 order that Sections 7.2 and
22.4(a)
of the Act require adoption of the Subpart CC amendments
so that the amendments are filed with the Secretary of State
before December 6,
1995.
That would require the Board to meet
the following deadlines for timely adoption:
August
3,
1995
Repropose the amendments for public
comment and Illinois Register
publication
August 25,
1995
Publication in the Illinois Register,
beginning 45-day public comment period
October
9,
1995
Close of public comment period
October 19,
1995
Vote to adopt the amendments
November 18,
1995
Expiration of 30-day hold for U.S. EPA
comment
December 6,
1995
Filing adopted amendments with the
Secretary of State, making them
effective
The Board further explained on May 18 that 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, the Board
accelerated the timing on later amendments and corrections,
as in
this docket with regard to the January
3,
1995 Phase II LDR
corrections; added Board notes indicating the existence of a
federal stay, as with the wood preserving rules in R91-1; and
8
added a Note discussing the effect of a federal judicial decision
in the American Mining Congress case that vacated the 1066
listing, also in R91-1.
These actions basically consisted of
adding language to the regulations by way of a Board Note that
explains the problems with the underlying federal regulation and
that the Board does not intend that the state regulation have any
more effect than the corresponding federal regulation.
Based on this, the Board suggested that we were inclined to
adopt the amendments, following our traditional course of noting
problems with the rules at the federal level.
Thus, we would
have revised the amendments to read as follows,
in order to
extend the effective date as late as possible:
Section 724.980
A~p1icability
~j
The requirements of this Subpart apply. effective
December 6.
1995. to owners and operators 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
provide otherwise.
BOARD NOTE:
U.S. EPA adopted these regulations at
59 Fed. Req.
62896
(Dec.
6,
1994). effective June
6.
1995.
At 60 Fed.
Req.
——
(——
——,
1995),
U.S.
EPA delayed the effective date until December 6.
1995.
If action by U.S. EPA or a decision of a
federal court changes the effectiveness of these
regulations. the Board does not intend that the
724.Subpart CC rules be enforceable to the extent
that they become more stringent than the federal
regulations upon which they are based.
Section 725.980
Applicability
~j
The requirements of this Subpart apply, effective
December
6.
1995.
to owners and operators of all
facilities that treat, store,
or dispose of
hazardous waste
in tanks,
surface impoundments. or
containers subject to either 725.Subparts
I,
J. or
K. except as Section 725.101 and subsection
(b)
below provide otherwise.
BOARD
NOTE:
U.S.
EPA
adopted these regulations at
59 Fed. Reg.
62896
(Dec.
6,
1994), effective June
6,
1995.
At 60 Fed. Reg.
——
(——
——.
1995)
U.S.
EPA
delayed the effective date until December 6,
1995.
If action by U.S.
EPA or a decision of a
9
federal court chan~esthe effectiveness of these
regulations, the Board does not intend that the
725.Subpart CC rules be enforceable to the extent
that they become more stringent than the federal
regulations upon which they are based.
CICI,
IERG,
CWM,
and TWI all responded to the May 18 Board
order on May 25.
The Agency responded on May 26.
The responses
noted that U.S. EPA had formally acted on May 19,
1995 to amend
the Subpart CC rules to delay the effective date until December
6,
1995.
U.S. EPA essentially substituted “December 6” for “June
5” at 40 CFR 264.1080(b) (1) and
(c); 265.1080(b) (1) and
(c); and
265.1082(a),
(a)(1),
(a)(2),
(a)(2)(iii), and
(a)(2)(iv), which
correspond directly with 35 Ill. Adm. Code 724.980(b) (1) and
(C);
724.980(b)(1) and (c); and 725.982(a),
(a)(i.),
(a)(2),
(a)(2)(C),
and
(a) (2) (D).
The discussion accompanying the May 19 amendments
suggested future clarifications of the rules
in the Federal
Register, stating at 60 Fed. Reg.
26828,
“This process may result
in compliance options that facilities do not now realize are
available.”
U.S. EPA stated that it was delaying the effective
date to allow “affected facilities to make any such adjustments”
and because of “the possibility of increased compliance
flexibility”
(i.e.,
regulatory amendments).
IERG responded, stating that it contacted the
RCRA
Hotline
and was informed that U.S. EPA anticipates publishing further
clarifications of the rules before the delayed December 6,
1995
compliance deadline.
IERG suggested modification of the language
of the proposed version of the rules put forth by the Board in
the May 18 order, by adding the Board Note and delayed effective
date in Sections 724.980(a)
and 725.980(a) and substituting dates
in Sections 724.980(b) (1) and
(c); and 725.982(a),
(a)(l),
(a) (2),
(a) (2) (C), and
(a) (2) (D),
as done in the May 19 federal
amendments.
IERG stated its belief that the Board Note should
adequately address any issues that might arise through later
federal action, but requested additional discussion in this
opinion, to clarify our intent to the regulated community.
The CICI response requested that the Board follow the
suggestions made by IERG.
CICI further joined in the IERG belief
relating to the Board note and in IERG’s request that the Board
add further explanation in this opinion.
CICI related that U.S.
EPA conducted a workshop on implementation of the regulations on
May 2,
1995.
CICI stated that U.S. EPA told participants that it
is considering significant amendments to the Subpart CC rules.
One prospective change is that U.S. EPA would amend 40 CFR
265.2085(d)
to allow facilities to equip tank covers with
consevation vents.
Another is that facilities newly subject to
the RCRA Subtitle C requirements would be allowed 30 months from
the effective date to install control equipment.
U.S. EPA is
10
also considering adding provisions for equipment startup,
shutdown, and malfunction situations; other alternatives for
treated hazardous waste;
special provisions for organic peroxide—
containing wastes; and reevaluating the appropriateness of Method
25D for determining regulated waste streams.
CWN
responded that it attended the May 2,
1995 U.S. EPA
workshop on the Subpart CC rules.
CWM
recited essentially the
same list of amendments under consideration by U.S. EPA that was
included in the CICI response, and it also stated that U.S. EPA
disclosed its intent to clarify or amend its rules.
However,
CWM
disagrees that inserting the delayed effective date into the text
of the rules avoids problems that might arise through later
federal amendments.
CWM
further believes that the addition of an
explanatory Board Note solves the problem.
CWN
stated that this
would leave facilities to ponder the state and federal rules
in
light of which is more stringent,
and it could force facilities
to operate technically out of compliance with the state rules.
CWM
urged the Board to use our authority to extend the deadline
for adoption of the Subpart CC amendments,
under Section 7.2(b)
of the Act, and delay action on those rules.
CWM
did want the
Board to promptly proceed with adoption of the Phase II LDR5, the
other major part of this docket.
The Board notes that in
response to our request for quidance on which rules to stay,
CWM
responded by citing Illinois Register pages,
rather than specific
rules.
TWI essentially echoed
CWM’s
positions on these issues.
The Agency responded by reciting that it contacted U.S. EPA
Region V and spoke with Gary Westfer, the person responsible for
monitoring Illinois implementation of the RCRA Subtitle C
program.
Mr. Westefer stated that U.S. EPA may amend or clarify
the Subpart CC rules before their new December
6,
1995 effective
date.
On the other hand, he also stated that it is possible that
US.
EPA may not amend the rules.
Mr. Westefer pointed out to
the Agency that any litigation involving the Subpart CC rules
would take a long time to conclude.
The Agency stated that Mr.
Westefer believed that the Board Note suggested in the May 18
order would adequately address concerns that would be raised by
any later U.S. EPA action.
The Board will grant the CICI and IERG motions as clarified
by their respective filings of May 25.
We will proceed to adopt
the Subpart CC amendments at this time, using the delayed
effective date and Board Note included in our order of May 18 and
adding the substitutions of “December 6” for “June
5”
at Sections
724.980(b) (1) and
(c); and 725.982(a),
(a)(1),
(a)(2),
(a)(2)(C),
and
(a) (2) (D).
Thus, we follow the federal amendments of May 19
but add the additional recitation of the effective date and the
Board Note.
The Board does not desire that the Illinois regulations
become more stringent than the federal regulations.
Where U.S.
11
EPA amends its rules to grant additional flexibility, the Board
promptly responds with amendments--often with the adoption of the
original rules,
as we do here.
U.S. EPA has adopted the Subpart
CC rules,
and it amended them on May 19.
Such formal rulemaking
actions are the only action on which the Board can base our
actions in the context of identical—in—substance rulemaking.
Our
regulatory text reflects these actions.
However, where U.S. EPA
does not undertake formal amendments, we resort to using an
explanatory Board Note because we do not desire that the Illinois
regulations have a greater impact than the federal rules from
which they derive.
We intend by addition of the Board Note that
if U.S. EPA undertakes to amend its rules in a way that makes
them less stringent than the rules upon which our amendments are
based, the Illinois regulations will not be enforceable to the
extent they are more stringent than the amended federal rules.
The cloud that could result from some future federal
amendments or court decision is too speculative at this time to
delay adoption of the Subpart CC regulations.
Thus, we do not
feel that delaying action on the Subpart CC rules, as suggested
by
CWM
and TWI,
is the appropriate action at this time.
We
sympathize with the dilemma of the Agency and the regulated
community in determining what Illinois regulations have become
more stringent as a result of a future federal action.
Nevertheless, we believe that the Agency and the regulated
community can adequately work together to make the determinations
necessary during any interim period between the federal action
and Board amendment of the rules to reflect the federal action.
As explained above, this is not the first time a situation of
this type has arisen, and the Board is unaware of any instance
where our addition of a Board Note explaining our intent was not
adequate to assure adequate implementation and compliance with
the rules.
CONSOLIDATION OF DOCKETS
Although the Board generally deals with RCRA Subtitle C and
UIC regulations separately, we have dealt with them together
where the UIC amendments are minor and closely related to the
RCRA
Subtitle C regulations and where doing so was expeditious
for the Board and would not mislead the public.
Generally, we
have done this by dismissing the UIC docket, noting the action
that we undertook in the RCRA Subtitle C docket.
The present UIC amendments are small in volume and closely
related to the
RCRA
Subtitle C amendments in this instance.
The
only UIC amendments occurred as part of the federal Phase II LDRs
on September 19,
1994.
It is therefore expeditious for us to
deal with the amendments with the RCRA Subtitle C amendments.
However, the Board does not believe that outright dismissal of
the UIC docket is appropriate; the amendments are major in
12
importance to facilities operating injection wells that inject
hazardous waste.
For these reasons, the Board has consolidated
the two proceedings,
in order to avoid any possible confusion and
to particularly draw the attention of the interested public to
the UIC amendments.
HISTORY OF
RCRA
SUBTITLE
C, UST and UIC ADOPTION
AGENCY OR BOARD ACTION?
EDITORIAL CONVENTIONS
The Board appends three routine discussions at the end of
this opinion.
The first
is a summary history of the Illinois
RCRA
Subtitle C and UIC programs.
It lists all actions taken to
adopt and maintain these programs since their inceptions.
It
includes a listing of all site-specific rulemaking and adjusted
standards proceedings filed that relate to these programs.
It
also lists all U.S. EPA program authorizations issued to date.
The second is a discussion of how the Board codifies requirements
that call for state determinations,
such as for exemptions,
exceptions,
etc.
The third discussion relates to our use of
language in the codification of identical—in-substance rules.
We
intend these as reference aids for interested persons in the
regulated community.
DISCUSSION
The federal actions that underlie this proceeding require
amendment of the Illinois
RCRA
Subtitle C and UIC regulations.
This discussion briefly focuses on each by subject matter,
indicating the specific details of the actions taken by the Board
where pertinent.
General Revisions
The Board continued to change the references to the United
States Environmental Protection Agency in this rulemaking, which
we began in update docket R93-16 and continued in R94-7 and R94-
17.
We now refer to “U.S.
EPA”, which we believe is a more
conventional and clearly understood in the context of the
Illinois regulations than either “USEPA” or “EPA”.
We further
began to refer to the “U.S. EPA hazardous waste number” and “U.S.
EPA document number”
for similar clarity.
This changed usage
occurs only in the Sections opened in this proceeding, and we
will continue this conversion in future rulemakings as additional
Sections otherwise become open to amendment.
The Board also continued to present equations and
expressions in standard scientific notation.
Thus,
in Section
721.Appendix H, we used the appropriate chemical notation.
For
13
example, we replaced “H3A5O4” with
“H3AsO4”, as formerly used for
arsenic acid.
We believe that any person sophisticated enough to
understand the chemical equations will more readily recognize
them in the standard mathematical notation, as they appear in the
federal original.
In that Section we also corrected the chemical
name in the entry for aidrin by adding a missing parentheses.
The Board also substituted “or” for
“/“
in most instances where
this appeared in the federal base text,
using “and” where more
appropriate.
The Board also used this opportunity to make a number of
corrections to punctuation, grammar, and cross—reference format
throughout the opened text.
Where the cross—references within
the text to other segments of the Illinois Administrative Code
did not formerly comport with the standard format, the Board made
the necessary changes.
We also changed “who” to “that” and “he”
to “it”, where the person to which the regulation referred was
not necessarily a natural person, or to “he or she”, where a
natural person was evident; changed “which” to “that” for
restrictive relative clauses; substituted “shall” for “will”;
capitalized the Section headings and corrected their format where
necessary; and corrected punctuation within sentences.
Finally,
some of the language structure of the federal base
text
(in both the new amendments and that incorporated in earlier
dockets)
is cumbersome or less than clear.
The Board has
attempted to correct some of the worst instances of this.
We
realize that the language of the hazardous waste regulations
still suffers in conciseness and clarity, but we cannot go
further at this time and still maintain parity with the federal
regulations.
However, we invited interested members of the
regulated community to submit suggestions relating to correcting
deficiencies and errors and enhancing clarity of the rules.
As
yet, we have received no suggestions.
Repeal of Part 700
Part 700 was formerly the outline of the solid waste
(Subtitle G) regulations.
In docket R94—5, the Board repealed
all of the Sections in that Part except Section 700.106.
We
noted that the Part was greatly outdated, and because its limited
continued utility did not justify the labor involved with
updating it, we decided a repeal was the appropriate course.
We
did not repeal the entire Part at that time because Section
700.106 set forth the effective dates of a number of provisions
by reference.
In R94-5, the Board amended many of the permitting
and lflC regulations that referenced Section 700.106 for an
effective date (primarily in the Section and Part source notes).
The Board now completes the repeal of Part 700.
We have
opened all Sections that still had references to Section 700.106.
14
The mere act of any amendment of these Sections removed the
references in the Section source notes.
The amendments to these
Sections are minor corrections and clarifications.
Thus,
we have
amended the following Sections for the primary purpose of
deleting the references to Section 700.106:
705.128,
720.121,
722.122, 723.130,
725.114,
725.117, 725.150,
725.171,
725.192,
725.194,
725.271,
725.272,
725.274, 725.325, 725.352, 725.378,
725.477,
725.501,
725.502,
725.503, 725.504,
725.505,
725.506,
730.104,
730.105,
730.110,
730.132, 730.133, and 730.151.
We
have also removed the references to Section 700.106 from the main
source notes of Parts
720,
721,
722,
723, and 725.
In these
instances, the Board has substituted the appropriate dates of the
federal authorizations upon which the effective dates of the
Illinois regulations originally depended.
Thus, having eliminated the final utility of Part 700, we
have repealed it in its entirety.
The Board invited public
comment on the elimination of the references to Section 700.106
and the repeal of Part 700 and received none,
except that
JCAR
staff communicated to Board staff that it agrees with the repeal.
Effect of a Permit——Section 702.181
Section 702.181 derives in part from 40 CFR 270.4, which
U.S. EPA amended at 59 Fed.
Reg.
62952
(Dec.
6,
1994), as part of
the tank,
surface impoundment, and container volatile organic
emissions amendments.
Section 270.4(a) basically recites that
compliance with a
RCRA
Subtitle C permit constitutes compliance
with
RCRA
Subtitle C itself, except in certain narrow
circumstances when not included in the permit.
The gist of the
exceptions
is that immediate compliance with certain newer
provisions is required in the time between when U.S.
EPA
promulgates a new regulation and when the permit is amended to
reflect the newer requirement.
The federal amendments added a
new exception circumstances:
the new Part 265
(interim status)
subparts AA (process vents),
BB
(equipment leaks), and CC (tanks,
surface impoundments, and containers)
air emissions requirements.
Thus, holding a permit that does not include these requirements
does not excuse non—compliance with them.
In Illinois,
compliance with a permit does not constitute
compliance with the Environmental Protection Act, except as to
the statutory requirement to operate in compliance with a
permit.1
Thus,
the Board’s regulation at Section 702.181(a)
is
very different from 40 CFR 270.4(a).
The Board never adopted and
1
In a prior UIC update, R81—32
(May 13,
1982),
and a prior
RCRA Subtitle C update,
R92-10
(January 21,
1993), the Board read
Landfill, Inc.
v. PCB
(1978),
74
Ill.
2d 541,
387 N.E.2d 258,
as
requiring this conclusion.
15
never could reasonably have adopted the federal exceptions.
At
this time,
the Board adds
a Board Note to this provision
explaining the existence of the federal regulation,
and
explicitly stating that in not adopting the federal exceptions,
the Board does not imply the opposite of the federal intent:
that compliance with the conditions of a permit excuses
compliance with the newer requirements.
The Board invited comment on our addition of a Board Note to
Section 702.181(a) and received none.
We infer from this silence
that we have taken an appropriate course.
Permit Application Requirements——Sections 703.183, 703.201.
703.202,
703.203
& 703.213
Sections 703.183,
703.201, 703.202,
703.203, and new 703.213
derive from 40 CFR 270.14(b), 270.15, 270.16,
270.17, and newly—
added 270.27,
respectively.
These provisions all relate to the
submission of
RCRA
Subtitle C permit applications.
13.5.
EPA
amended these provisions at 59 Fed. Reg.
62952
(Dec.
6,
1994),
as
part of the organic material emissions amendments, to require the
submission of certain information in permit applications.
40 CFR
270.14(b) (5)
(corresponding with 35 Ill.
Adm. Code 703.183(e))
now requires submission of information relating to compliance
with the air leaks inspection requirements.
40 CFR 270.15(e),
270.16(k), and 270.17(j)
(corresponding with 35 Ill. Adm. Code
703.201(e),
703.202(k), and 703.203(j), respectively)
require
submission of information relating to container, tank system, and
surface impoundment air emissions control equipment.
New 40 CFR
270.27 (corresponding with 35 Ill. Adm. Code 703.213) requires an
owner or operator of a tank,
surface impoundment, or container
that uses air emissions controls to provide more specific and
detailed information on the controls.
Aside from minor corrective revisions,
both to the federal
amendments and the pre—existing base text
(most extensive in
Section 703.213), the Board has adapted the text of the federal
amendments without deviation.
The Board invited comment on our
codification of the federal air emissions control permit
information requirements.
Aside from the requests to delay
action on the December 6,
1994 Subpart CC rules, the only
comments
received on the Part 703 amendments were from the Agency
in PC 4.
PC 4 suggested that the Board deviated from the federal
text in three passages:
Sections 703.201(e),
703.202(k),
and
703.203(j).
These represent deviations in punctuation intended
to enhance the clarity of the rules, and we decline to alter the
text as proposed.
Incorporations by Reference--Section 720.111
Section 720.111 derives in large measure from 40 CFR 260.11,
which U.S. EPA amended at 59 Fed. Reg. 62926
(Dec.
6,
1994), as
16
part of the tank, surface impoundment, and container air
emissions requirements.
U.S. EPA added an incorporation for
“Evaporative Loss from External Floating—Roof Tanks”, API
Publication 2517, Third Edition, and updated the incorporation of
ASTM D 2879—92,
“Standard Test Method for Vapor Pressure-
Temperature Relationship and Initial Decomposition Temperature of
Liquids by Isoteniscope”, to the 1992 edition.
U.S. EPA also
amended Method 25E, “Determination of Vapor Phase Organic”,
in 40
CFR 60, appendix A, at 59 Fed. Reg.
62924.
As a consequence of
these federal actions, the Board has added the new API method and
updated the ASTM method in the incorporations by reference.
We
also updated the incorporation of 40 CFR 60 by reference to
reflect the update of Method 25E.
At new 40 CFR
264.1086(b) (1) (B),
U.S. EPA requires that hazardous waste
containers must meet the U.S. Department of Transportation
hazardous materials transportation requirements
(U.S. DOT HAZ—MAT
regulations)
of 49 CFR 178.
Although U.S. EPA did not (was not
required to) incorporate the U.S. DOT HAZ-MAT regulations by
reference,
the Board added an incorporation at Section
720.111(b).
Aside from minor corrective revisions and placing the API
method “Cathodic Protection of Underground Petroleum Storage
Tanks and Piping Systems” in its proper alphabetical order under
API, the Board has adapted the text of the federal amendments
without significant deviation.
However, the Board did not delete
the reference to the 1986 version of the method in making the
amendments; the older version is still cited
in Sections 724.963
and 725.963.
The Board also amended the citations to other ASTM
methods by adding the date extension to the method numbers that
appeared in the preexisting text at Sections 724.933(e) (2),
724.963(d)(1) and
(h), 725.933(e)(2), 725.963(d)(1) and
(h),
725.984(c)(3)(B)(iv).
At new Section 726.200(g)
(definition of
“SSU”), the Board added the letter prefix to the method number,
which did not appear in the original federal text.
The Board invited comment on our incorporations by
reference.
We received no comments on this aspect of the
amendments.
Solid Waste Determinations--Sections 720.130 through 720.133 and
721. 102
Sections 720.130 through 720.133 derive from 40 CFR 260.30
through 260.33, and 35 Ill.
Adm. Code 721.102 derives from 40 CFR
261.2, which U.S. EPA amended as part of the Phase
II LDRs
(universal treatment standards)
at 59 Fed. Reg. 48041
(Sept.
19,
1994).
These provisions all relate to solid waste
determinations,
a necessary requisite to determining the
applicability of the
RCRA
Subtitle C regulations.
The first
segment of the amendments involved replacing references to the
“Regional Administrator” with the “Administrator” at 40 CFR
17
260.30 through 260.33, wherever this appeared.
Thus, U.S. EPA
centralized the authority for granting the variances from solid
waste determination.
The Board does not need to respond to these
amendments,
since they all pertain to decisionmaking at the
federal level.
However, at 40 CFR 260.30(b)
and 260.31(b)
(corresponding with 35
111. Adm. Code 720.130(b) and 720.131(b)),
U.S. EPA changed “original primary production process” to
“original production process”, thus allowing the variances for
production processes using secondary materials.
The amendment of
40 CFR 261.2(e) (1)
(iii)
(corresponding with 35 Ill. Adm. Code
721.102(e) (1) (C)) similarly expanded the scope of materials that
are not solid wastes when recycled to include secondary
processes, so long as materials management does not allow
placement on the land.
The Board amends Sections 720.130(b),
720. 131(b), and
721.102(e) (1) (C) to reflect the changes in 40 CFR 260.30(b),
260.31(b),
and 261.2(e) (1) (iii).
We have also made a limited
number of corrective and clarifying amendments to the open
provisions.
We did not find it necessary to open Sections
720.132 or 720.133 for amendments based on the federal changes.
The Board invited comment on the amendments to the solid
waste determination provisions.
Based on the fact that we
received no comments on this aspect of the amendments, the Board
has retained the proposed approach.
Exclusion of In—Process Recycled Secondary Materials from the
Petroleum Refining Industry——Sections 721.103, 721.104.
721.106,
and 726.200
Sections 721.103,
721.104, and 721.106 derive from 40 CFR
261.3,
261.4,
and 261.6,
respectively.
Section 721.103 relates
to the definition of hazardous waste,
Section 721.104 sets forth
exclusions from regulation as a hazardous waste,
and Section
721.106 sets forth requirements for recyclable materials.
Section 726.200 derives from 40 CFR 266.100 sets forth the
applicability of the Part 726 requirements for boilers and
industrial furnace facilities burning hazardous waste for energy
recovery.
U.S. EPA amended 40 CFR 261.3(c) (2) (ii) (B),
261.4(a) (12),
261.6(a) (3) (iv), and 266.100(b)(3)
(corresponding
with 35 Ill. Adm. Code 721.103(e),
721.104(a) (12),
721.106(a) (3) (D), and 726.200(b) (3)) at 59 Fed. Reg. 38545
(July
28,
1994)
to exclude certain in—process recycled secondary
materials from the petroleum refining industry from the
definition of solid waste when inserted into the normal
production process (petroleum refining) prior to crude
distillation or catalytic cracking.
U.S. EPA stated that it
undertook this action in response to judicial determinations,
in
18
several cases,2 that U.S. EPA had exceeded its statutory
authority by including materials recycled and reused in ongoing
manufacturing processes.
The Board adapts the federal amendments with minimal
deviation.
First, we have made a limited number of corrective
and clarifying amendments to the amendments and the pre—existing
text of the open provisions.
Second,
40 CFR 261.3(c) (2) (ii)
(corresponding with 35 Ill.
Adm. Code 721
•
103(c) (2) (B)) had
become very lengthy.
U.S. EPA had employed five
(very necessary)
levels of indents to maintain the utility of this provision-—even
though a sixth level would have even further enhanced its
readability.
Illinois codification requirements only allow four
levels of indents.
Therefore,
since this subsection is too
cumbersome at this location, and since U.S. EPA has marked
subsection
(e)
as reserved, the Board moved subsection
(c) (2)
(as
amended) to subsection
(e).
We placed Board Notes at subsections
(c) (2) and
(e) to indicate the change in structure.
We also
revised the cross—references to this subsection,
at Sections
724.1102(a), 725.1102(a), and 739.110(e) (1) (B) to reflect the
changed location of this provision.
Finally,
Section
721.104(b)(11)
(40 CFR 261.4(b) (11))
relates to an exclusion from
regulation that expired in 1993.
The Board has deleted it and
replaced it with an explanatory statement.
The Board invited comment on our handling of the federal
secondary materials exclusion in Sections 721.103,
721.104,
721.106, and 726.200.
The only comment received on the Part 721
amendments were from the Agency in PC 4.
PC 4 suggested that the
Board deviated from the federal text in one passage:
Section
721.104(a)(12).
This represents a deviation in punctuation
intended to enhance the clarity of the rules, and we decline to
alter the text as proposed.
Updated Waste Exclusions--Section 721.Appendjx I, Tables A,
B, C
&D
Section 72l.Appendix I,
Tables A,
B, and C derive from 40
CFR 261, Appendix IX, Tables
1,
2, and 3.
These set forth the
federally-granted hazardous waste exclusions
(delistings).
As is
more fully discussed in the historical outline below,
until
Illinois gained authorization to grant hazardous waste
delistings,
U.S. EPA had the exclusive authority to grant this
2
In support of its action, U.S. EPA cited Chemical Waste
Management. Inc.
v. EPA,
976 F.2d
2
(D.C. Cir.
1992),
cert.
denied,
——
U.S.
——,
113
S. Ct.
1961
(1993);
Shell Oil Co.
v.
EPA,
950 F.2d 741
(D.C.
Cir. 1991); American Mining Con~ressv. EPA,
907 F.2d 1179
(D.C. Cir. 1990); and American Petroleum Institute
v.
EPA,
906 F.2d 729
(D.C. Cir.
1990).
19
relief to Illinois facilities.
When requested by the affected
facility owner or operator that had obtained a federal delisting,
the Board used identical—in—substance procedures to make the
federally—granted delisting effective in Illinois as a matter of
state and federal
law.3
Thus, the Board established Sections
721.Appendix
I to incorporate the federally—granted adjusted
standards.
In response to petitions from Amoco Corporation (R85—
2), Envirite Corporation
(R87—30), and USX Corporation (R91-12),
the Board added the federally-granted delistings to the tables.4
On Apri.l
30,
1990, at 55 Fed. Reg. 7320
(March
1,
1990),
U.S. EPA authorized Illinois to grant hazardous waste delistings.
On February 28,
1991,
in docket R90-l7, the Board adopted
procedures for granting the delistings using the statutorily-
prescribed adjusted standard mechanism.
Since gaining the
authority and establishing the procedures, the Board has granted
hazardous waste delistings by adjusted standards.
The Board
added Section 72l.Appendix
I, Table D to list hazardous waste
delistings granted by adjusted standards.
That table does not
derive from federal regulations; rather,
it is an addition for
the convenience of the regulated community.
Recently,
in AS 94-10,
on December
14,
1994,
the Board
granted an adjusted standard to Envirite Corporation.
By its
terms, this
hazardous waste delisting expressly superseded the
delistings included in Section 728.Appendix
I
for that entity.
In other words, under federal authorization, the state—granted
adjusted standard superseded the federal exemption that was first
incorporated into the federal regulations by U.S.
EPA, then
subsequently incorporated as site-specific relief into the
Illinois regulations using identical—in—substance procedures.
These facts place the Envirite entries in Sections
721.Appendix
I in an unusual position.
First, they are now a
nullity, with no operative effect.
As such,
it is undesirable
that they remain in that Section.
Second,
U.S. EPA no longer
retains authority to grant hazardous waste delistings in
~
Section 3006 of
RCRA
(42
U.S.C.
§
6926) provides that
state regulations apply in an authorized state
in lieu of the
federal regulations.
Section 3009
(42 U.S.C.
§ 6929) provides
that states may establish regulations that are more stringent
than the federal regulations.
These provisions made it necessary
for owners and operators to obtain relief at both the federal and
state levels until Illinois obtained delisting authorization from
U.S.
EPA.
~
The Board notes that U.S. EPA granted a delisting to
Monsanto Corporation, but we never received a petition to add
this delisting to Appendix I.
20
Illinois.
Thus,
the Board does not anticipate that U.S. EPA will
amend 40 CFR 261, Appendix IX, Tables
1,
2, and
3 at any time in
the near future with respect to Illinois facilities.
For these
reasons, the Board has acted unilaterally under Section 22.4(a)
of the Act and deleted the entries for Envirite in Tables A and
B.
The Board believes that since we adopted the entries pursuant
to Section 22.4(a), we have the inherent authority to delete the
entries pursuant to that provision under the circumstances.
For
these reasons also, we added AS 94-10 to Table
D, which
memorializes the hazardous waste delistings granted by adjusted
standards.
In addition to the amendments prompted by AS 94-10, the
Board makes a small number of clarifying amendments.
In all of
Tables A through D, the Board has made minor amendments to add
clarity, including to change the Section heading for Section
721.Appendix I to reflect that the tables pertain to wastes
excluded by administrative action.
To the headings of Tables A
through C, we add that they pertain to wastes excluded by U.S.
EPA, and to the heading of Table D we add that the exclusion was
granted by the Board.
Other provisions in the body of Part 721
exclude wastes by rule.
In the Table B entry for Amoco
Corporation, the Board has added a sentence omitted from the
original federal text identifying the waste as containing K086
waste.
We further made a clarifying change in the structure of
another sentence.
The Board believes that the changes will add
clarity to the regulations.
The Board invited comment on our actions with regard to the
listings of hazardous wastes excluded by administrative actions
and received none.
We infer from this silence that we have taken
an appropriate course.
Generator Compliance with Air
Emissions Requirements-—Section
722.134
Section 722.134 derives from 40 CFR 262.34, which U.S. EPA
amended at 59 Fed. Reg. 62926
(Dec.
6,
1994),
as part of the air
emissions regulations for hazardous waste tanks,
containers, and
surface impoundments.
The federal amendments to subsections
(a) (1) (1),
(a) (1) (ii),
and
(d) (2)
(corresponding with 35 Ill.
Adm. Code 722.134(a)(1)(A),
(a)(1)(B), and
(d)(2)) require the
generator placing hazardous waste in tanks or containers to
comply with the applicable organic material emissions
requirements applicable to interim status treatment, storage, and
disposal
(T/S/D)
facilities.
In addition to the simple amendments based on the federal
revisions, the Board has made a small number of corrective and
clarifying amendments to the pre-existing base text of Section
722.134.
Significant among these, we revised subsection
(a) (1) (D) to delete a past compliance date and the concomitant
21
expiration of a 60-day grace period for making an entry into the
facility operating record.
The Board added a citation at
subsection
(b)
to the Illinois EPA’s requirements for requesting
a 30—day extension (provisional variance) for accumulation of
hazardous waste.
The Board invited comment on our revisions to Section
722.134.
The Agency commented in PC
4 that the Board should
refer to 725.Subpart J, rather than 725.Subpart
I in subsection
(a) (1) (A).
Subpart J pertains to management of tanks, and
Subpart I pertains to containers.
Since subsection
(a) (1) (A)
relates to management in containers,
we retain our preexisting
reference to 725.Subpart I.
(We note that subsection
(a) (1) (8)
relates to tanks,
so the text there appropriately refers to
725.Subpart J.)
Transporter Reporting of Releases-—Section 723.130
Section 723.130 derives from 40 CFR 263.30, a provision not
amended during the present update period.
Rather, the Board
opened Section 723.130 for the purpose of deleting a reference to
Section 700.106,
as noted above.
During the course of review, we
realized that the reference for reporting to the Emergency
Services and Disaster Agency was wrong.
The name has changed to
the Illinois Emergency Management Agency.
We used the
opportunity to make a small number of clarifying amendments.
The Board invited comment on the amendments to Section
723.130.
We received none.
Applicability of T/S/D Facility Standards to Elementary
Neutralization Units-—Sections 724. 101 and 725.101
Section 724.101(g) (6) derives from 40 CFR 261(g) (6), and
Section 725.101(c) (10) derives from 40 CFR 265.1(c) (10), both of
which U.S. EPA amended at 59 Fed.
Reg. 48042
(Sept.
19,
1994).
The amendments corrected an error in the May 24,
1993
(58 Fed.
Reg.
29873)
imposition of requirements on owners and operators of
elementary neutralization and wastewater treatment units treating
certain wastes.
The owner or operator of an elementary
neutralization unit or wastewater treatment unit is exempted from
the T/S/D facility and interim status facility standards,
with
narrow exceptions:
the owner or operator must comply with the
limited protective requirements of Section 724.117(b)
or
725.117(b)
(corresponding with 40 CFR 264.17(b) or 265.17(b))
if
it is diluting certain wastes prior to land disposal.
The wastes
originally indicated in the May 24,
1993 rules were ignitable
(DOOl)
or corrosive (D002) wastes.
The September 19,
1994 action
corrected this to ignitable (DOOl)
or reactive (D003)
wastes.
The Board has incorporated the federal corrections without
deviation.
However, we used this opportunity to make a number of
22
corrective and clarifying amendments to the pre—existing base
text of the open Sections.
The Board invited comment on our approach to the Section
724.101 and 725.101 corrections and received none.
As always, we
infer approval from such silence.
ApplicabilitY of Air Emissions Standards and General Records-
keeping and Reporting Requirements--Sections 724.113. 724.115,
724.173, 724.177, 724.279. 724.300.
724.332, 724.701, 725.101.
725.113, 725.115, 725.173, 725.177,
725.278, 725.302
& 725.331
U.S. EPA amended the treatment,
storage, and disposal
(T/S/D) facility standards applicability, general recordskeeping,
and reporting requirements amended as part of the December 6,
1994 organic material emissions requirements for tanks,
containers, and surface impoundments.
The following tables set
forth the Illinois provisions involved, their Code of Federal
Regulations counterpart provisions, the Federal Register
citations of the amendments,
and the general nature of the
amendments to the provision:
Permitted T/S/D Facility Standards
59
Fed.
35 Ill. Adm.
Derived from
Reg.
--;
Type
of Provision;
Code Section
40
CFR
--
action
Nature of Amendments
724.113
264.13(b)
(8)
62926;
Written waste analysis plan
(b) (8)
amended
requirement; must include
scheme for determining
volatile organic
(VO)
content when claiming an
exemption from controls
requirements
724.115
264.15(b) (4)
62926;
General facility inspection
(b) (4)
amended
requirements; must
establish frequency for air
emissions controls
inspections
724.173
264.73(b)(3)
62926;
Facility operating record
(b) (3)
&
&
(b) (6)
amended
requirements; must maintain
(b) (6)
entries in operating record
of testing, monitoring,
corrective action, etc.
relating to volatile
organic emissions control
724.177(c)
264.77(c)
62926;
Submission of reports; must
amended
submit reports as required
23
under volatile organic
emissions rules
724.279
264.179
62926;
Requires owner or operator
added
managing hazardous waste in
container to comply with
volatile organic emissions
regulations
724.300
264.200
62926;
Requires owner or operator
added
managing hazardous waste in
tank to comply with
volatile organic emissions
regulations
724.332
264.232
62926;
Requires owner or operator
added
managing hazardous waste in
surface impoundment to
comply with volatile
organic emissions
regulations
724.701
264.601
62927;
Miscellaneous unit
amended
performance standards;
requires permit conditions
to include compliance with
volatile organic material
emissions regulations
Interim Status T/S/D Facility Standards
Amended 35
59 Fed.
Ill.
Adm.
Derived from
Reg.
--;
Type of Provision;
Code Section
40 CFR --
action
Nature of Amendments
725.101(b)
265.1(b)
62934
Applicability of interim
T/S/D
standards; exempts
certain activities from
tank,
container, and
surface impoundment air
emission standards
725.113
265.13(b)(6)
62935;
Written waste analysis plan
(b) (6)
amended
requirement; must include
scheme for determining
volatile organic
(VO)
content when claiming an
exemption from controls
requirements
725.115
265.15(b)(4)
62935;
General facility inspection
(b) (4)
amended
requirements; must
24
establish frequency for air
emissions controls
inspections
725.173
265.73(b) (3)
62935;
Facility operating record
(b) (3)
&
&
(b) (6)
amended
requirements; must maintain
(b) (6)
entries in operating record
of testing, monitoring,
corrective action,
etc.
relating to volatile
organic emissions control
725.177(d)
265.77(d)
62935;
Submission of reports; must
amended
submit reports as required
under volatile organic
emissions rules
725.278
265.178
62935;
Requires owner or operator
added
managing hazardous waste in
container to comply with
volatile organic emissions
regulations
725.302
265.202
62935;
Requires owner or operator
added
managing hazardous waste in
tank to comply with
volatile organic emissions
regulations
725.331
265.231
62935;
Requires owner or operator
added
managing hazardous waste in
surface impoundment to
comply with volatile
organic emissions
regulations
The Board has made the amendments as indicated by U.S.
EPA,
with only minor deviations to the text of the amendments and the
pre—existing base text for the sake of correction and clarity.
Without elaborating on the minor deviations, we note one more
significant correction.
Formerly, Section 724.300 (corresponding
with 40 CFR 264.200)
set forth special requirements for managing
F020 through F023,
F026, and F027 wastes in tank systems.
At 51
Fed. Reg. 25422,
25471
(July
14,
1986),
U.S. EPA amended the tank
systems requirements.
Without explicitly describing its action
as repealing 40 CFR 264.200, U.S. EPA printed the table of
contents for Subpart J of part 264 without section 264.200.
The
effect of the printing of the table of contents was a de facto
repeal of section 264.200.
Since U.S. EPA did not indicate the
repeal in the descriptive heading for the action, the Board
failed to pick up on the repeal in docket R86-46, adopted July
25
16, 1987.~ The addition of 40 CFR 264.200 relating to tank air
emission standards brought the error to the Board’s attention,
so
we correct it now.
The Board invited comment on our approach to the air
emission standards applicability and general recordskeeping and
reporting amendments.
Aside from the requests to delay action on
the December 6,
1994 Subpart CC rules, the only comments received
on the amendments to these Sections were from the Agency in PC 4.
PC
4 suggested that the Board deviated from the federal text in
two passages:
Sections 724.113(b) (8) (A) and 724.173(b) (6).
These represent deviations in punctuation intended to enhance the
clarity of the rules,
and we decline to alter the text as
proposed.
Amendments to the Process Vent and Equipment Leaks Emissions
Requirements——Sections 724.933
& 725.933
Section 724.933(k) (2) and
(m) derives from 40 CFR
264.1033(k) (2) and
(m), which U.S. EPA amended at 59 Fed. Reg.
62927
(Dec.
6,
1994),
and Section 725.933(j) (2) and
(1) derives
from
40 CFR
265. 1033
(j)
(2) and
(1), which U.S. EPA amended at 59
Fed. Reg.
62935
(Dec.
6,
1994),
as part of the air emissions
regulations amendments.
This provision applies to owners and
operators of closed—vent systems and control devices used to
comply with the process vent air emissions requirements.
The
added language at subsection
(k) (2) obviates annual leak
detection monitoring after the initial round of monitoring for
closed—vent systems that operate under vacuum.
The addition of
subsection
(m) requires documentation that all activated carbon
removed from a control device be regenerated or reactivated in a
permitted thermal treatment device, incinerated in a permitted
facility, or burned in
a permitted industrial boiler.
The Board has used the federal language of these new
subsections with only minimal deviation for clarity.
The Board invited comment on our codification of the
amendments to Sections 724.933(k) (2) and 725.933(j) (2) and new
Sections 724.933(m)
and 725.933(1).
Aside from the requests to
delay action on the December
6,
1994
Subpart CC rules, the only
comments received on these amendments were from the Agency in
PC
4.
PC
4 suggested that the Board deviated from the federal text
in six passages:
Sections 724.933(m)(1),
(m)(2), and (m)(3)
725.933
(1) (1),
(1) (2), and
(1) (3).
These represent deviations
~
The standard Federal Register format would have required
U.S. EPA to either expressly describe the action as a repeal or
to have included the section heading in the table of contents.
The omission had the effect of misleading the Board.
26
in grammar intended to enhance the clarity of the rules, and we
decline to alter the text as proposed.
Volatile Organic Emissions Standards for Tanks, Containers,
and
Surface Impoundments—-Sections 724.980 through 724.991 and
725.980 through 725.991
35 Ill.
Adm.
Code 724.Subpart CC (Sections 724.980 through
724.991) and 725.Subpart CC
(Sections 725.980 through 725.991)
derive from 40 CFR 264, Subpart CC (sections 264.1080 through
264.1091) and 40 CFR 265, Subpart CC
(sections 265.1080 through
265.1091), which U.S. EPA added at 59 Fed. Reg.
62927 through
62952
(Dec.
6, 1994).
These two new Subparts are the core of the
new volatile organic air emissions control requirements for
tanks,
containers, and surface impoundments.
The Part 724
standards apply to permitted T/S/D facilities, and the Part 725
standards apply to interim status T/S/D facilities.
They are the
third installment of air emissions regulations applicable to
hazardous waste management facilities, after Subparts AA (process
vents)
and BB (equipment leaks) to both Parts.
The new
requirements impose emissions standards,
control requirements,
testing and monitoring procedures,
inspection and monitoring
requirements, and recordskeeping and reporting requirements.
As
explained above,
beginning on page 5, U.S. EPA delayed the
effective date of these rules on May 5,
1995,
at 60 Fed. Reg.
26828.
The Board has incorporated the new federal provisions with
only minor revisions for clarity and to adapt to the Illinois
regulatory scheme.
Most of the revisions,
as through the text of
the rest of the regulations,
are limited to changes in
punctuation, wording, and sentence structure for clarity.
However,
a small number of revisions are more noteworthy.
Worthy of note
is the change at Sections 724.980(c)
and
725.980(c)
that requires that the requirements of Subparts CC
become incorporated into the facility permit when it is reissued.
The Board has included permit renewal and modification as
conditions that trigger this requirement.
Also,
U.S. EPA
employed distance, pressure, and volume quantities in SI units
(meters
(m)
or centimeters
(cm), pascals
(Pa), kilopascals
(kPa),
and cubic meters
(m3)), which the Board has revised.
We retain
the SI units as the primary quantities, only converting Pascals
to kilopascals for consistency, then we parenthetically add the
conversion to feet
(ft) and inches
(in) for distance; pounds per
square inch, either gauge
(psig)
or absolute (psia),
as
appropriate, and millimeters of mercury
(mm Hg)
for pressure; and
cubic feet
(ft3)
and gallons
(gal)
for volume.
Thus, for
example,
a distance of 15.25 cm also indicates 0.50 ft or 6.0 in,
a volume of 151 m3 also indicates the volume of 5333
ft3 or 39,887
gal, and a pressure of 76.6 kPa appears also as 11.1 psia or 574
27
mm Hg.
Also noteworthy is the change at Sections 724.984(e),
724.985(f),
725.985(e),
and
725.986(f),
where the Board added
federal language as a Board note.
U.S. EPA stated in the
regulatory text at both places that it considers a drain system
that meets certain requirements to be a “closed—system”.
Rather
than retain an expression of
U.S. EPA’S
opinion as core
regulatory text, the Board incorporated the fact of U.S. EPA’s
expression into Board Notes.
We then indicated,
as we have done
in the past, that the Board intends the same meaning for the
term.
Similarly,
in the Section 725.981 definition of “point of
waste origination”, the Board has placed in a Board Note the U.S.
EPA
expression of intent that this term have the same meaning as
“point of generation” under the Clean Air Act regulations
(40 CFR
60,
61, and 63).
The Board has made two minor structural changes for clarity.
We have divided Section 725.982(c),
which indicates the two
conditions necessary for an extension of the implementation date,
into two distinct subsections for enhanced clarity.
Due to
codification constraints,
the Board has also found it necessary
to combine 40 CFR 265.1085(c)(6)(iii) (B)
(1)
and
(c) (6)
(iii)
(B) (2)
into the main body of Section 724.985(c) (6) (C) (ii), since,
as
previously explained, the Illinois Administrative Code format
does not allow a fifth level of subsections.
Finally, the Board has adapted one federal provision by
allowing the Illinois EPA to recommend that the Board grant
provisional variances.6
40 CFR 265.1091(b) (1)
(ii)
and
(b) (1) (v)
allow
the
U.S.
EPA
Regional
Administrator
under
specified
circumstances
to
allow
an
owner
or
operator
an
additional
30
days
to
repair
or
empty
and
remove
from
service
a
tank
whose
primary
roof seal has failed.
Believing that the provisional variance
mechanism is the appropriate tool for such grants of relief in
Illinois, the Board has so provided in Sections
725.991(b) (1) (B)
and
(b) (1) (E).
In so doing, the Board requires the owner and
operator to comply with the Illinois EPA procedural requirements
for provisional variance relief
(35
Ill.
Adm. Code 180).
The Board received requests to defer action on these
amendments,
as discussed above beginning on page 5.
Rather than
defer action, the Board incorporated the federal delayed
effective date for the rules and added a Board Note explaining
6
Section
35(b)
of
the
Act
provides,
“The
Board
shall
grant
provisional variances
.
.
.
upon
notification
from
the
Agency
that compliance on a short term basis with any rule or regulation
.
impose an arbitrary or unreasonable hardship.
.
.
.“
(415
ILCS 5/35(b))
28
our intent that the Illinois rules not become more stringent than
the federal regulations upon which we have based them.
PC 4
suggested changes in language to restore the original federal
language in seven segments of the amendments:
Section
724.982(a) (2) (A) through
(a)(2)(E),
724.984(g) (2), and
724.990(a).
The deviations
in Section 724.982 are deviations in
grammar, and those of Sections 724.984(g) and 724.990(a)
in
punctuation, intended to enhance the clarity of the rules.
We
have declined to make the suggested changes.
Applicability of Manaaement Standards to
HTMR
Slags——Section
726.120
U.S.
EPA
added
40 CFR
266.20(c) and 268.41(a)
at 59 Fed.
Reg. 43500
(Aug.
24,
1994).
Section 726.120(c)
of the Illinois
regulations derives from
40 CFR
266.20(c).7
Section 726.120
states the applicability of the regulations relating to
recyclable materials that are used in a manner constituting
disposal
(applied to or placed on land).
Existing subsection
(b)
exempts materials that meet the land disposal restrictions under
certain circumstances, and Section 721.103(c) (2) exempts high
temperature
metals
recovery
(HTMR)
slags meeting certain
contaminants
content
requirements
that
are
disposed
in
RCRA
Subtitle D facilities if they do not exhibit any characteristic
of
hazardous
waste.
Thus,
the
requirements
for
disposal
in
a
RCRA
Subtitle D facility were more stringent than the
requirements
for
materials
used
in
a
manner
constituting
disposal.
New Section 726.120(c)
simply removes anti—skid and
de-icing (road and highway) uses of
F006,
K061,
and
K062
HTMR
slags from the exemption of subsection
(b).
These uses of these
materials are subject to the 726.Subpart C requirements.
In adapting this provision to the Illinois regulations, the
Board has used the federal regulatory text with minor deviations;
we have slightly altered the language for clarity and directness.
The Board invited comment on our codification of the limitation
of the use exemption as to
HTMR
slags in Section 726.120(c)
and
received none.
Applicability
of
Hazardous
Waste
Standards
to
Use
in
a
Manner
that Constitutes Disposal——Section 726. 123
Section 726.123(a)
derives from
40 CFR
266.23(a), which U.S.
EPA amended at 59 Fed. Reg. 48042
(Sept.
19,
1994),
as part of
the Phase II land disposal restrictions regulatory package.
~
Since U.S. EPA subsequently deleted all substantive
requirements in section 268.41,
in the September 19,
1994 Phase
II LDRs,
this discussion does not further discuss that provision
with regard to the
HTMR
slag exemption.
29
Section 726.123 sets forth the standards that generally apply to
use of recyclable materials in a manner that constitutes
disposal.
The federal amendment reworded the provision slightly
and added 40 CFR 268
(the land disposal restrictions) to the body
of general regulations that apply to such use.
The Board has followed the federal language.
However, since
Subparts A through N constitutes all of
40 CFR
124,
268,
and 270,
the
U.S. EPA
has limited the applicability of only 40 CFR 264 and
265
to those Subparts,
i.e.,
40
CFR 124,
268,
and 270 would apply
generally to use in a manner constituting disposal, unless
otherwise limited by their own terms.
Thus,
the Board has
limited only the applicability of Parts 724 and
725
to Subparts A
through N in adapting the federal language.
The Board invited comment on our handling of the Section
726.123(a)
applicability statement.
We received no comment on
this part of the amendments.
Applicability of BIF Rules to Mercury Recovery Furnaces—-Sections
726.200
& 726.Appendix N
U.S.
EPA
amended 40 CFR 266.l00(c)(1),
(c)(3),
(c)(3)(i),
(c)(3)(ii), and (c)(3)(i)(A)
at 59 Fed. Reg.
48042
(Sept.
19,
1994),
as part of the Phase II LDR5.
These correspond with 35
Ill.
Adm.
Code
726.200(c)(1),
(c)(3),
(c)(3)(A),
(c)(3)(B),
and
(c) (3) (A) (i).
These provisions state the applicability of the
Subpart H regulations pertaining to burning hazardous waste in a
boiler or industrial furnace (BIF rules).
The amendments limit
the availability of an exemption for a mercury recovery furnace
from the BIF rules.
U.S. EPA added 40 CFR
266,
appendix XIII
(now corresponding with 35
Ill.
Adm. Code 266.Appendix N)
at the
same time.
This new appendix lists the mercury—bearing wastes
that qualify for burning in an exempted BIF unit.
The Board has incorporated the federal amendments with only
minor revisions to enhance clarity.
The Board invited comment on
our amendments relating to the Sections 726.200(c)
and
726.Appendix N exemption for
BIF
units burning mercury-containing
waste.
We infer agreement from the lack of comment.
Feed Rate and Emissions Screening Limits--Sections 726.Appendices
A throu~hC: Risk—Specific Doses--Section 726.Appendix E
Sections 726.Appendices A through C and E derive from 40 CFR
266,
appendices
I through III and
V.
U.S.
EPA did
not amend
these provisions during the current update period.
Rather, the
Board has opened these provisions at the suggestion of the Joint
Committee on Administrative Rules
(JCAR).
During the course of
the prior update docket, R94-17, JCAR staff liked the Board’s
conversion of the format “x.xE+nn” or “x.xE—nn” to the standard
decimal notation.
It specifically requested that the Board make
30
this conversion on these remaining appendices to Part 726.
This
is the reason the Board has made the amendments described.
The Board invited comment on our conversion of the numbers
in Sections 726. Appendices A through C and E to standard decimal
notation.
As with all other aspects of the amendments to Part
726, the Board received no comments.
Phase II LDRs——Parts 728
& 738
U.S. EPA adopted the Phase II land disposal restrictions
(LDRs)
on September 19,
1994, at 59
Fed. Reg. 47982.
U.S. EPA
subsequently amended the Phase II LDR5 on January
3,
1995.
As
discussed above, this is the segment of the present update in
which the regulated community has expressed interest.
The Board
has also included the January 3,
1995 amendments,
as also
discussed above, despite the fact that it is technically outside
the present update period,
for the convenience of that community.
We have also consolidated the underground injection control
(UIC)
segments of the Phase II LDR amendments together with the RCRA
Subtitle C segments for the convenience of the Board.
U.S. EPA promulgated the Phase II LDRs pursuant to the
Hazardous and Solid Waste Amendments of 1984 to RCRA
(HSWA).
Federal law provides that they went into effect in Illinois on
the federal effective date (September 19,
1994), except as to
those provisions for which there was a more stringent Illinois
counterpart provision.
This, according to IERG,
has led to
confusion,
and, hence,
there
is an interest in the Board adopting
these provisions as rapidly as possible.
U.S. EPA explained that the new LDRs did not change the
treatment standards for all wastes, and that the new LDRs do not
fully replace the older ones.
Rather, U.S. EPA rendered two sets
of standards for each hazardous waste constituent, one for
wastewaters and another for nonwastewaters,
as before, but now
using the same standards for each constituent without regard to
the waste code.
Thus,
differences in concentration limits for
the same constituent were eliminated.
The older constituent
concentration in waste
(40 CFR 268.48,
Table CCW; corresponding
with 35 Ill. Adm. Code 728.Table B)
and constituent concentration
in waste extract
(40 CFR 268.41, Table CCWE; corresponding with
35 Ill. Adm. Code 728.Table A)
tables have been replaced by
treatment standards for hazardous wastes
(40 CFR 268.40) and
universal treatment standards (40 CFR 268.48, Table UTS) tables.
The treatment standards for hazardous wastes table (codified by
the Board as Section 728.Table T)
lists hazardous wastes by waste
code,
setting forth the constituents of concern and the
wastewater and/or nonwastewater treatment standards for each.
The treatment standards are given
in terms of maximum constituent
concentrations for the contaminant or as a treatment method or
methods allowed for land disposal.
The universal treatment
31
standards
(UTS)
table (codified by the Board as Section 728.Table
U) sets forth the maximum constituent concentrations for the
contaminants for which these were established.
The maximum
constituent concentrations are the same for the contaminants
wherever they appear in these tables.
U.S. EPA further established additional land disposal
restrictions in the Phase II LDR5.
Some are for high total
organic carbon
(TOC)
ignitable liquids
(DOOl waste)
and
halogenated pesticide wastes (D012 through D017 wastes), which
now require full treatment before disposal
(unless disposed in an
underground injection well that has a no-migration exemption.
Others are for “newly—listed wastes”
(i.e., coke by-product
production, K141 through 1145,
K147 and 1149
wastes, and
chlorotoluene production, K149 through K151,
wastes listed since
HSWA).
The Board tabulates the amendments required by the federal
Phase II LDR action to Parts 728 and 738 as follows:
35 Ill. Adm. Code
Derived from 40 CFR
Federal Register
Section
--
Citation(s)
Type of Provision; Nature of Amendments.
728.101(c) (1) (C)
268.1(c) (1) (iii)
59 Fed. Reg. 48043
(Sept.
9,
1994)
Exclusion from restriction against land disposal; allows
continued land disposal of DOOl high TOC and D012 through D017
pesticide waste that meets treatment standards.
728.101(e) (4)
&
268.1(e) (4)
&
(e)(5)
59 Fed. Reg.
48043
(e) (5)
(Sept.
19,
1994)
Exclusion from Part; adds de minimis losses of organic
characteristic toxic wastes (D012 through D043)
and rinsate from
safety showers, personal safety equipment, and containers to a
wastewater treatment systems and organic toxicity characteristic
(D012 through D043)
laboratory wastes that are mixed with
wastewaters subject to Clean Water Act regulation.
728.102
(“debris”
&
268.2
59 Fed.
Reg.
48043
“underlying
(Sept.
19,
1994)
&
hazardous
60 Fed. Reg. 244
constituent”)
(Jan.
3,
1995)
Definitions; adds lead-acid batteries, cadmium batteries, and
radioactive lead solids to list of wastes for which treatment
standards exist and that are excluded from the definition of
“debris”; changes definition of “underlying hazardous
constituent” to refer to table UTS and exclude vanadium and zinc.
32
728.107
268.7
59 Fed.
Reg.
48043
(Sept.
19, 1994)
&
60 Fed.
Reg. 244
(Jan.
3,
1995)
Waste analysis and recordskeeping requirements; substitutes
combustion for incineration and fuel substitution treatments to
exclusion; adds organic toxicity characteristic
(D012 through
D043) wastes to those for which the generator must determine the
underlying hazardous constituents; amends the generator and T/S/D
facility notice and certification requirements; exempts generator
of lab packs and those using alternative treatment standards from
waste analysis requirements, and those of lab packs from the
notice and certification requirement; adds certification
requirement for DOOl, D002,
and D012 through D043 wastes.
728.109(a)
&
(d)
268.9(a)
&
(d)
59 Fed. Reg. 48045
(Sept.
19,
1994)
&
60
Fed.
Reg. 245
(Jan.
3,
1995)
Special rules for characteristic waste; adds organic toxicity
characteristic (D012 through D043)
wastes to those for which the
generator must determine the underlying hazardous constituents;
amends the generator and T/S/D facility notice and certification
requirements.
728.138
268.38
59 Fed. Reg. 48045
(Sept.
19, 1994)
Newly—listed organic toxicity and coke by-product and
chlorotoluene production wastes LDR5; phased prohibitions against
land disposal of newly-listed organic toxicity (D012 through
D043)
wastes, coke by-product production
(K141 through K145,
1147
and 1149)
wastes, and chlorotoluene production )K149 through
1151)
wastes.
728.140
& 728.Tab. T
268.40
& Table
59
Fed. Reg. 48046
(Sept.
19,
1994)
&
60 Fed.
Reg. 245
(Jan.
3,
1995)
Applicability of treatment standards; body of revised regulations
stating the applicability of the Phase II treatment standards and
setting forth the standards
(in table, by waste code);
restrictions added for high TOC ignitable waste
(DOOl),
halogenated pesticide (D0l2 through D017)
wastes, coke by-product
production
(Kl41 through K145,
1147
and K149)
wastes, and
chlorotoluene production
(K149 through 1151)
wastes.
728.141
& 728.Tab. A
268.41
& Table CCWE
59 Fed. Reg. 48103
(Sept.
19,
1994)
Former treatment standards as concentrations in waste extract
(CCWE); standards deleted in favor of new standards.
33
728.142
& 728.Tab. C
268.42,
Table 1
59 Fed. Reg. 48103
(Sept.
19,
1994)
&
60 Fed.
Reg.
302
(Jan.
3,
1995)
Treatment standards as specified treatment technologies; addition
of combustion
(CMBST) treatment technology; modification of
language to accommodate amended treatment standards.
728.143
& 728.Tab. B
268.43
& Table CCW
59 Fed.
Reg. 48103
(Sept.
19,
1994)
Former treatment standards as concentrations in waste
(CCW);
standards deleted in favor of new standards.
728.145(b) (2)
268.45(b) (2)
59 Fed.
Reg. 48103
(Sept.
19,
1994)
Provision for identification of hazardous debris subject to
treatment; conformation of language to universal treatment
standards.
728.146
& 728.Tab. G
268.46
& Table
1
59 Fed. Reg. 48103
(Sept.
19,
1994)
Former treatment standards for hazardous debris; standards
deleted in favor of new standards.
728.Table D
268.42, Table
2
59 Fed. Reg. 48103
(Sept.
19,
1994)
Listing of treatment technologies by waste code; deleted.
728.Table E
268.42,
Table
3
59 Fed. Reg. 48103
(Sept.
19,
1994)
LDR5 for mixed radioactive wastes; standards deleted in favor of
new standards.
728.148
& 728.Tab. U
268.48
& Table UTS
59
Fed.
Reg. 48103
&
60
Fed. Reg.
302
(Jan.
3,
1995)
Listing of treatment standards by hazardous constituent; listing
added.
728.Appendix D
&
268,
appendix IV & V
59 Fed.
Reg. 48107
728.Appendix E
(Sept.
19,
1994)
List of wastes excluded from lab packs;
former listings replaced
with new list.
728.Appendix J
268, appendix X
59
Fed.
Reg. 48107
(Sept.
19,
1994)
&
60 Fed.
Reg.
302
(Jan.
3,
1995)
Table of recordkeeping, notification,
and certification
requirements; listing summarizing land disposal restrictions
recordkeeping, notification, and certification requirements
added.
34
738.117(b)
&
(c)
148.17(b)
&
(c)
59 Fed. Reg. 48041
(Sept.
19,
1994)
Underground injection disposal restrictions; restrictions added
for high TOC ignitable waste
(DOOl), halogenated pesticide (D012
through D017)
wastes, coke by-product production
(Kl41 through
K145,
1147
and K149)
wastes, and chlorotoluene production
(K149
through 1151)
wastes.
The Board has followed the federal amendments with a greater
or lesser degree of deviation to enhance readability and clarity.
Many of the revisions to the federal text are minor,
but others
are worthy of note.
One noteworthy general amendment is that
wherever the federal regulations refer to disposal in a “Subtitle
D facility”, the Board has amended the language to indicate a
“RCRA
Subtitle D (municipal solid waste landfill)
facility”,
in
the belief that this gives optimum clarity.
Simple references to
“Subtitle D” can lead to confusion in the context of “Subtitle C”
regulations.
Much clarification of 40 CFR 268.7 and 268.9 was necessary
in Sections 728.107 and 728.109.
At Section 728.107(a),
the
Board combined two parallel
(and nearly identical)
statements
relating to characteristic (721.Subpart C)
and listed
(721.Subpart D) wastes into a single statement.
At this
subsection and Section 728.109(a), we retained the language “are
reasonably expected to be present”, which U.S. EPA deleted at
corresponding 40 CFR 268.7(a) and 268.9(a), because the
statements are not clear without the omitted language.
Similarly, the Board retained “wastes prohibited pursuant to” in
Section 728..107(a) (1) (B), which U.S. EPA also omitted from 40 CFR
268.7(a) (1) (i),
and “wastes prohibited pursuant to” at Section
728.107(b) (4) (B), which U.S.
EPA omitted from 40 CFR
268.7(b)(4)(ii).
We corrected the misspelling of “contaminant”
in the pre—existing text of Section 728.107(a)(3)(E)(i)
(which
did not appear in error in the original federal text).
To
Section 728.107(a) (4), we added “or containment buildings”, which
appeared in the base text of 40 CFR 268.107 (a)
(4),
but not in the
Illinois pre-existing base text.
U.S. EPA revised the cross—references to the various LDR
tables to the new references throughout the open provisions, but
did not open other sections to complete the process throughout
part 268.
Rather,
U.S. EPA placed references at 40 CFR 268.40,
268.41, and 268.43 indicating the relationship between the old
standards and the locations of the new standards.
The Board
copied these broader cross—referential notes,
then took the extra
step and has opened all the Sections with references that we
could find and tried to amend all the references so that they now
refer to the proper location for the present standard.
The Board opened Sections 728.130 and 728.133 solely to
revise the references to the treatment standards, as explained
35
above, but has made additional amendments to clarify the pre-
existing text.
We deleted a past compliance date and
accompanying expired notification requirement from Section
728.130(c).
The Board parenthetically added “adjusted standard”
to the Sections 728.130(d) (2) and 728.133(e) (2) references to an
“exemption”.
In Section 728.130(d) (3), added language is
intended to not only clarify the provision,
but also to clarify
that it is U.S. EPA that grants an extension to a prohibition
(as
noted in referenced Section 728.105).
Finally, Section
728.133(f)
was not in the pre-existing base text.
Rather, the
subsections went from
(e) to
(g), skipping
(f).
Since this
violates Illinois Administrative Code codification requirements,
the Board corrected this by adding an explanation of the lack of
a parallel provision as subsection
(f), as we have done in the
past.
New Section 738.138(a)
and
(b) contains numerous minor
deviations from the original text of 40 CFR 268.38(a) and
(b).
None of the changes is individually worthy of discussion, but the
Board
highlights
the
fact
that
these
two
provisions
were
those
that
deviated
the
most
from
established
Board
usage
and
common,
clear
language.
Therefore,
these
two
subsections
required
the
greatest revision of all the provisions involved in this
proceeding.
Another minor correction arose through the January
3,
1995
amendments to the September 19,
1994 rules.
U.S. EPA added
Appendix X (corresponding to Section 728.Appendix J), then
amended certification statement B at the end.
In so doing,
U.S.
EPA deleted the cross-reference to the body of the regulations
for
the
statement.
The
Board
retained
the
cross—reference
as
given on September 19.
One thing we contemplated changing from the federal original
of 40 CFR 268, appendix X, but which we did not propose in
Section 728.Appendix J, was the addition of limiting language.
The
Board
perceives
that
the
appendix
is
a
useful
but
gratuitous
summary of the body of the land disposal restrictions
recordkeeping, notification, and certification requirements——
i.e., we do not believe that it should have substantive effect
beyond the text of the core regulations themselves.
If,
indeed,
this tabular summary
is intended to have no substantive effect,
the Board believes that the safer course is to include a
statement to that effect,
in case there is ever a conflict
between the summary and the basic requirement.
However, we are
unclear on this point,
so we did not include such a limiting
statement.
The Board found it necessary to alter the format of Sections
728.Tables T and U from the original federal text in the tables
to 40 CFR 268.40 and 268.48.
Especially with the core treatment
standards table
(Section 728.Table T), we could not readily adapt
36
the federal format to comply with the Illinois Administrative
Code codification requirements.
In the case of the universal
treatment standards table (Section 728.Table U), the purpose of
the reformatting solely to widen the four substantive columns.
Also,
the Board found corrections necessary to some of the
chemical names in the text:
benzo(k)fluoranthene
(Table T,
F039), bis(2—chloroisopropyl)ether (same), hexachlorocyclopenta—
diene
(K097, Table T), 5-aminomethyl—3—isoxazolol
(P007, Table
T),
O,O-diethyl—O-pyrazinyl-phosphorothioate (P040,
Table T), N—
methyl—N’—nitro—N-nitrosoguanidine (U163,
Table T), and 2,4—
dimethyl phenol
(Table U).
The Board further added a statement
to footnote four to Section 728.Table T an explanation of the
notation “fb”.
U.S. EPA defined the abbreviation in 40
CFR
268.42, Table
1, but the Board prefers to define it in the text
of the table that uses the abbreviation.
The Board invited comment on our codification of the Phase
II land disposal restrictions in Part 728.
The Agency responded
in PC 4 with a number of recommended changes to restore the
original federal text in 10
locations:
Sections 728.109(a);
728.138(a);
728.Table T (D002
& D004—D011),
(D019),
(D028),
(K022),
(1028),
(1032),
(U067),
and
(U068);
and
738.117(b).
The
Board has incorporated most of these suggestions into the text of
the
adopted
rules.
The
highlighted
error
in
Section
728.109(a)
was a January 31,
1991 federal amendment
(56 Fed.
Reg.
3878)
that
the Board failed to incorporate in docket R91-13, on April 9,
1992.
All
of these corrections appear in the table below,
“Public Comment—Based Corrections”.
The suggested changes not
made were to incorporate the past federal effective date
(December 19,
1994)
into Sections 728.138(a)
and 738.117(b).
The
Board systematically deletes past effective dates to avoid
confusion,
since no Illinois regulation can have retroactive
effect.
Persons interested in the effective date of a federal
H5WA—derived provision can determine that from the federal
rules.8
Corrective Amendments to UIC Provisions--Sections 730.104,
730.105,
730.110,
730.132.
730.133
& 730.151
As
previously
discussed,
the
Board
opened
Sections
730.104,
730.105, 730.110, 730.132,
730.133, and 730.151 for the primary
purpose of deleting references to Section 700.106 in the source
notes.
To do this,
we amended each Section for enhanced clarity,
intending no substantive amendments.
Although some of these
amendments might at first appear to change the regulatory
language, the most major amendments are limited to moving
S
Section 3006(g) (1) of RCRA
(42
U.S.C.
§
6926)
provides
that HSWA-derived provisions go into effect, even in authorized
states,
on
their
federal
effective
dates.
37
phrases.
The Board received no comments relating to these
amendments.
Public Comment—Based Corrections
Correct cross—reference to “724.953”
Delete closing parentheses
Correct ending punctuation, add “and”
correct ending punctuation
Correct indentation level
Add
“of”,
correct subsection numbering
Update CFR cite
Correct reference to R94—7
Underline subsection headings
Delete comma
Correct end punctuation, add and delete
“and”
As mentioned above,
the Board received several suggestions
from
JCAR
staff, the Secretary of State, and the Agency for
corrections to the text of the amendments as proposed.
The Board
tabulates the corrections made based on these suggestions as
follows (sources of suggested corrections are indicate with
A
indicating the Agency,
B
indicating Board,
C
indicating motions
and comments,
‘
indicating
JCAR,
and
S
indicating the Secretary of
State as the primary source of the changes):
Section5°’~
Board Action
702
Authority Note’
Correct references to R82-19
& R87—39
702.181(a)
Board
Add
parentheses
Note’
702.181(c)
Board
Update CFR cite
NoteB
702
•
183 (e)’
702. 183
(j)’
702.183
(s)3.8
703.202(h)
(3)3
703.203 Board Note’
703.2l3~~~
705.128 Board NoteB
721.
Authority Note’
721.103 (a) (2) (A) (i)
&
(a) (2) (A) (ii)S
721.103 (a) (2) (C)—
(iii)
S,J
721.104(b) (13) (C)’
721.104(e) (2) (A)—
(e) (2) (E)”5
Correct spelling of “Nonwastewater”
721.106 (a) (2) (B)’
721.106 (a) (3) (F)’
721. 106(b)’
721.App.
I,
Table
B’
722. Authority Note’
722
122S,J
722.134(d) (2)’
723.130(b)’
723.130(c)’
724. Table of
Contents3
724. Authority Note’
724.104(g) (6)’
724.115(b) (4)’
724.115 Source
724.156(d) (2)’
724.173(b) (6)’
724.173(b) (15)’
724.173 Source
NoteS,~
724.300 Source Note’
724.933(m) (1)’
724.963(d)’
724.980 headingS
724.980(a)
&
Board
Note,
(b)(1)
&
(c)~~C
38
Correct end punctuation
Correct cross—reference to “Subtitle C”
Delete comma
Remove comma after “USX Steel Corporation”,
add closing quote mark at condition four
Correct ILCS cite
Delete duplicate “the”
Correct cross—reference to “725.278”
Lower case “state”
Correct telephone number
Correct capitalization for 724.1102
Correct reference to R92—1
Correct end punctuation
Correct punctuation of series
Add source note
Correct CFR cite format
Correct
end
punctuation
Correct end punctuation
Add source note
Correct source note
Correct cross—reference to “724.Subpart X”
Correct punctuation of series
Underline heading
Add language relating to delayed effective
date and possible future federal action
724.982(c) (2) (E)—
(ii)’
724.982(b)
(i)
(B) (i)’
724.983 heading”5
724.984(c) (4) (B)’
724.985(d) (1) (B)’
724.986(b) (1) (A)”3
724.986(b) (1) (B)
(i)’
724.986(b) (1) (B)—
(u)”3
724.986(b) (1) (C)”~
724.987(b) (2)’
724.988(b) (2)’
724.989(a) (1)
&
(a)
(11)’
724.989(h)”8
724.990(a)3
724.1102 heading~”
725.113
(a) (2)
Board
Note’
725.115 Source
Notes,J
725.
117
(a)’
725.156(d)
(2)J.B
725.173(b)
(6)’
725.173(b) (11)’
725.173(b) (12)’
39
Plural “Sections”
Add comma for parenthetical
Underline heading
Capitalize “Hg”
Correct subsection label
Correct CFR cite format
Correct end punctuation
Correct
CFR cite format, add comma for
parenthetical
Correct
CFR cite format
Correct end punctuation
Add comma after “e.g.”
Correct cross—references to “724.984(b) (2)
or (b)(3)”
Correct
CFR
cite
format
Change
“which”
to
“that”
Correct
capitalization
Delete
comma
from
cross—reference
Add
source
note
change
colon to comma,
add comma after
e
.
g
.
correct
CFR
cite
format
Correct punctuation of series
Restore omitted base text, delete “and”
Correct end punctuation
725.173 Source
Note”5
725.301(b) (3)’
725.301(b) (4)
Board
Note’
725.933(e)5
725.963(d) (1)’
725.980(a)
& Board
Note,
(b) (1)
&
(c)
B,C.S
725.981 “no
detectable organic
emissions”
725.981 “point of
waste origination”
Board Note’
725.982(a),
(a) (1),
(a)(2),
(a)(2)(C)
&
(a)
(2)
(D)B.c
725.984(a) (5) (D)—
(iii),
(a)(6)(D),
(b) (4) (D)
(iii)
(b) (7) (A),
(b) (10)—
(C)
& (c)(3)(B)—
(iv)”8
725.984(c)
(3)
(B)—
(iv)’
725.986(e)
(3)’
725.987(b)
(1) (A),
(b) (1) (B),
(b) (1)—
(B) (i),
(b) (1) (B)—
(ii)
&
(b) (1) (C)”
725.989(a) (3)’
725.989(b) (2)’
725.989(f)
(4)
(A)”8
40
Add source note
Add comma after “e.g.”
Correct end punctuation
Add subsection heading
Correct ASTM cite format
Add language relating to delayed effective
date and possible federal future action,
correct
cross—reference
to
“725.101”
Correct CFR cite format
Replace CFR cite with “35 Ill.
Adm. Code
721”
Add language relating to delayed effective
date
Correct
CFR
cites
format
Correct cross—reference to “720.111”
Correct
end
punctuation
Correct
CFR
cite
format
Correct cross—reference to “725.987—
(b)(1)(B)
or
(b)(1)(C)”
Add
comma
after
“e.g.”
Correct
CFR
cite
format
725.990(h)’
726.200(c) (3) (A) (i)’
726.200(c) (3) (A)—
(iv)S
726.200(c) (3) (B)—
(iii)
S,B
726.200(g) “car-
cinogenic ~
726.App.
M’
728. Table of
Contents’
728.
Authority
Note’
728. 101(d)’
728.101(e)
(4)’
728.107
(a)
(1)
(E)’
728.107
(a)
(3)’
728.107 (a) (3) (A)’
728.107
(a)
(3)
(B)’
728.107(a) (3) (E)—
(ii)’
728.107(a)
(5)J.S
728.107(b) (4) (B)’
728.107(b)
(5)S
728.107(b) (5) (B)—
(b) (5) (D)5”
728. 109
(a)’
41
Correct CFR cite format, capitalize
“Sections”
Underline
new
semicolon
Correct
cross—reference to “(c) (1) (8)”
Correct cross—reference to “Section
726.Appendix D or E”
Underline new comma
Change “or” to “of”
Capitalize “Expressed” for 728.143
Correct
ILCS
format
Correct punctuation of “et seq.”
Add comma after “e.g.”
Delete
period
Delete extra “with”
correct
end
punctuation
Change
“—“
to
“through”
Omit
extra period
Delete
“the”
Correct end punctuation
Correct “requirements”,
correct cross—
reference format to “this subsection”
Correct indent levels of certification
statements
Correct base text, replace “the relevant”
with “a”, delete extra “the”, replace
“—“
with
“through”
728.130(a) (1)—
(a) (3)J~B
728.133(e)(2)
&
(e) (3)J~B
728.138(a)’
728.140(d)’
728.143 heading
728.145(d) (3)
&
(d) (4)’
728.App. J (I.)(H.)’
728.App.
J
certifi-
cation
statement
B’
728.Tab. C CHOXD &
MACRO”
728.Tab. C RORGS
(8)’
728.Tab T D002
&
D004_DO11A
728.Tab.
T
D019
&
D028A
Correct
end
punctuation
Add comma for parenthetical
Add comma after “e.g.”
Correct end punctuation
Correct CAS No.
for mercury
42
Correct end punctuation
Correct base text,
delete reference to
“exemption”
Replace
“—“
with “through”
Correct cite to “35 Ill. Adm. Code
728.107(b)
(5)
Capitalize
“Expressed”
Correct punctuation of “U.S.”
728.Tab.
728.Tab.
728.Tab.
728.Tab.
728.Tab.
728.Tab.
728
.
Tab.
728
.
Tab.
U168’
T
F024’
T
1022A
T
1028A
T
K032A
T
1049’
T
U067A,J
T U068A,3
T
U167
&
Correct
wastewater
&
nonwastewater
entries
Correct
end
punctuation
Correct wastewater entry
Correct CAS No.
for 1,1-dichloroethane
Correct CAS No.
for hexachloropentadiene
Add comma in xylenes series
Correct wastewater
& nonwastewater entries
Add
heading
Correct spelling of “Naphthalene”
43
728.Tab. T notes
2
&
Correct “and or or” to “or”
6”~
728.Tab. U note
~1.B
Correct cross—reference to “Section
728.102 (1)
730. Source Note3
Correct references to R82—19
& R95-4
730.104(c) (2)”’
Correct end punctuation
730.104(c) (3)’
Delete end parenthesis
730.104(e) (9)’
Correct end punctuation
738. Source Note~
Correct references to R93—6
& R95-4
739. Authority Note3
Correct ILCS format
739.
Source Notes
Add reference to R95-6
HISTORY OF RCRA Subtitle C, UST and UIC ADOPTION
The Illinois UIC (Underground Injection Control), RCRA
(Resource Conservation and Recovery Act)
Subtitle C, and UST
(Underground Storage Tank) regulations, together with more
stringent state regulations particularly applicable to hazardous
waste,
include the following Parts of Title 35 of the Illinois
Administrative Code:
700
Outline of Waste Disposal Regulations
702
RCRA Subtitle C and UIC Permit Programs
703
RCRA Subtitle C Permit Program
704
UIC
Permit
Program
705
Procedures for Permit Issuance
709
Wastestream
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
728
USEPA
Land
Disposal
Restrictions
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
731
Underground Storage Tanks
732
Petroleum Underground Storage Tanks
738
Hazardous Waste Injection Restrictions
739
Standards for the Management of Used Oil
44
Special provisions for RCRA Subtitle C cases are included in
Parts
102,
103,
104
and 106 of the Board’s procedural rules.
History of
RCRA
Subtitle C and State Hazardous Waste Rules
Adoption
The Board has adopted and amended the Resource Conservation
and Recovery Act (RCRA)
Subtitle C hazardous waste rules in
several dockets.
Dockets R81-22 and R82-18 dockets dealt with
the Phase I RCRA Subtitle C regulations.
U.S. EPA granted
Illinois Phase I authorization on May 17, 1982,
at 47 Fed. Reg.
21043.
The Board adopted RCRA Subtitle C Phase II regulations in
Parts 703 and 724 in dockets R82-l9 and R83—24.
U.S. EPA granted
final authorization of the Illinois RCRA Subtitle C “base
program” on January 31,
1986,
at 51 Fed.
Reg. 3778 (January 30,
1986).
U.S. EPA granted authorization to “Cluster
I
revisions”
to the Illinois program and granted partial Hazardous and Solid
Waste Amendments
(HSWA)
(Pub.
L. 98-616,
Nov.
8,
1984)
authorization effective March
5,
1988, at 53 Fed. Reg.
126
(January 5,
1988).
U.S. EPA authorized certain subsequent
amendments and granted further partial HSWA authorizations
effective April 30,
1990, at 55 Fed. Reg. 7320
(March
1,
1990),
and June 3,
1991,
at 56 Fed. Reg.
13595
(April
3,
1991);
and
August 14,
1994,
at 59 Fed. Reg.
30525
(June 14,
1994).
U.S.
EPA
codified its approvals of the Illinois program at 40 CFR 272.700
and 272.701 on November
13,
1989,
at 54 Fed.
Reg.
37649
(Sep.
12,
1989),
and on March 31,
1992,
at 57 Fed. Reg. 3731
(Jan.
31,
1992).
The entire listing of all RCRA Subtitle C identical in
substance rulemakings follows
(with the period of corresponding
federal revisions indicated in parentheses):
R81—22
45 PCB 317, September 16,
1981 & February 4,
1982;
6 Ill.
Reg.
4828,
April
23,
1982,
effective May
17,
1982.
(5/19/80
through
10/1/81)
R82—18
51 PCB
31,
January
13,
1983;
7
Ill.
Reg.
2518,
March
4,
1983,
effective
May
17,
1982.
(11/11/81
through
6/24/82)
R82—19
53 PCB
131,
July
26,
1983,
7
Ill.
Reg.
13999,
October
28,
1983,
effective
October
2,
1983.
(11/23/81 through 10/29/82)
R83—24
55 PCB
31,
December
15,
1983,
8
Ill.
Reg.
200,
January
6,
1984,
effective
December
27,
1983.
(Corrections to R82-19)
R84—9
64 PCB 427
& 521, June 13
& 27,
1985;
9 Ill. Reg.
11964, August
2,
1985, effective July
8
&
24,
1985.
(1/19/83
through
4/24/84)
R85-22
67 PCB
175,
479,
December
20,
1985
and
January
9,
45
1986;
10
Ill. Reg.
968, January 17,
1986,
effective January
2,
1986.
(4/25/84 through
6/30/85)
R86—1
71 PCB 110, July 11,
1986; 10 111. Reg.
13998,
August 22,
1986,
effective August
12, 1986.
(7/1/85 through 1/31/86)
R86—19
73 PCB 467,
October 23,
1986;
10 Ill.
Reg.
20630,
December 12,
1986, effective December 2,
1986.
(2/1/86 through 3/31/86)
R86—28
75 PCB 306, February 5,
1987;
and 76 PCB 195,
March 5,
1987;
11
Ill.
Reg.
6017, April
3,
1987,
effective March 23,
1987.
Correction at 77 PCB
235,
April
16,
1987;
11
Ill.
Reg.
8684,
May 1,
1987,
effective April 21,
1987.
(4/1/86 through
6/30/86)
R86—46
79 PCB
676,
July
16,
1987;
11
Ill.
Reg.
13435,
August
14,
1987,
effective
August
4,
1987.
(7/1/86 through 9/30/86)
R87—5
82 PCB
391,
October
15,
1987;
11
Ill.
Reg.
19280,
November 30,
1987,
effective
November
10
&
12,
1987.
(10/1/86
through
12/31/86)
R87—26
84 PCB 491, December 3,
1987;
12
Ill.
Reg. 2450,
January 29,
1988, effective January 15,
1988.
(1/1/87
through
6/30/87)
R87-32
Correction to R86-1;
81 PCB
163,
September
4,
1987;
11 Ill. Reg.
16698,
October
16,
1987,
effective
September
30,
1987.
R87—39
90 PCB
267,
June
16,
1988;
12
Ill.
Reg.
12999,
August 12,
1988,
effective
July
29,
1988.
(7/1/87
through 12/31/87)
R88—16
93
PCB
513,
November
17,
1988;
13
Ill.
Reg.
447,
January 13,
1989, effective December 28,
1988.
(1/1/88
through
7/31/88)
R89—1
103 PCB 179, September 13,
1989;
13 Ill. Reg.
18278,
November
27,
1989,
effective
November
13,
1989.
(8/1/88 through 12/31/88)
R89—9
109 PCB 343, March 8,
1990;
14 Ill. Reg.
6225,
April 27,
1990, effective April
16,
1990.
(1/1/89
through 6/30/89)
R90—2
113 PCB 131, July 3,
1990;
14 Ill. Reg.
14401,
46
September 7,
1990, effective August 22,
1990.
(7/1/89
through
12/31/89)
R90—11
121 PCB 97, April 11,
1991; corrected at 122 PCB
305, May 23,
1991; corrected at 125 PCB 117,
August
8,
1991; uncorrected at 125 PCB 435, August
22,
1991; 15 Ill. Reg.
9323, effective June 17,
1991.
(Third Third Land Disposal Restrictions)
(4/1/90 through 6/30/90)
R90—17
Delisting Procedures
(See below)
R91—1
125 PCB
119,
August
8,
1991;
15
Ill.
Reg.
14446,
effective September 30,
1991.
(Wood Preserving
Rules)
(7/1/90 through 12/30/90)
R91—13
132 PCB 263,
April
9,
1992;
16
Ill.
Reg.
9489,
effective
June
9,
1992.
(Boilers and Industrial
Furnaces
(BIFs) Rules)
(1/1/91 through 6/30/91)
R91—26
129 PCB 235,
January
9,
1992;
16 Ill. Reg. 2600,
effective
February
3,
1992.
(Wood Preserving
Rules
Compliance
Dates)
R92—1
136
PCB
121,
September
17,
1992;
16
Ill.
Reg.
17636,
effective
November
6,
1992.
(7/1/91
through 12/31/91)
R92—10
138
PCB
549,
January
21,
1993;
17
Ill.
Reg.
5625,
effective
March
26,
1993.
(Leak Detection Systems
(LDS)
Rules)
(1/1/92
through 6/30/92)
R93—4
——
PCB
——,
September
23,
1993;
17
Ill.
Reg.
20545,
effective
November
22,
1993.
(Used
Oil
Rules)
(7/1/92
through
12/31/92)
R93-16
--
PCB
--,
March
17,
1994,
Supplemental
opinion
and
order
on
April
21,
1994.
(1/1/93
through
6/30/93)
R94—7
—— PCB ——,
June
23,
1994,
18
Ill.
Reg.
12160,
effective July 29,
1994.
(7/1/93 through
12/31/93)
R94—17
—— PCB
——,
October 20,
1994,
18
Ill.
Reg.
17480,
effective
November
23,
1994.
(1/1/94
through
6/30/94)
R95-6
This docket; proposed March 2,
1995, with Notices
of Proposed Amendments in the Illinois Register on
March 24,
1995.
(Consolidated
with
R95—4,
UIC
Update.)
(7/1/94
through 12/31/94)
47
On
September
6,
1984,
the
Third District Appellate Court
upheld the Board’s actions in adopting R82-19 and R83—24.
(Commonwealth Edison Co.
v.
PCB,
127 Ill. App.
3d 446; 468
N.E.2d
1339
(3d
Dist.
1984) .)
The Board added
to
the
federal listings of hazardous waste
by listing dioxins pursuant to Section 22.4(d)
of the Act:
R84—34
61 PCB 247, November 21,
1984;
8 Ill. Reg.
24562,
December 21,
1984, effective December 11,
1984.
This
was
repealed
by
R85-22,
which
included
adoption of U.S.
EPA’s dioxin listings.
Section 22.4(d) was repealed by P.A. 85-
1048, effective January 1,
1989.
The
Board
has
adopted
U.S.
EPA delistings at the request of
Amoco,
Envirite,
and
USX
(the
date
of the corresponding federal
action is included in parentheses):
R85—2
69 PCB
314,
April
24,
1986;
10
Ill.
Reg.
8112,
May
16,
1986,
effective May 2,
1986.
(Amoco Corp.)
R87—30
90 PCB 665, June 30,
1988;
12 Ill. Reg.
12070,
July
22,
1988,
effective
July
12,
1988.
(Envirite
Corp.)
R91—12
128
PCB
369,
December
19,
1991;
16
Ill.
Reg.
2155,
effective January 27,
1992.
(USX
Corp.)
Subsequently,
upon
the
April
30,
1990
federal
authorization
of Illinois granting waste delistings,
U.S. EPA transferred
pending delisting petitions to the Board.
The Board docketed
these as site—specific rulemaking proceedings
(the name of the
petitioner
waste
generator
appears
in
parentheses):
R90—18
Dismissed
at 123 PCB 65,
June
6,
1991.
(USX
Corp., South Works)
R90—19
Dismissed at
116
PCB
199,
November
8,
1990.
(Woodward Governor Co.)
R90—23
Dismissed at
124
PCB
149,
July
11,
1991.
(Keystone Steel
& Wire Co.)
The
Board
has
modified
the
delisting
procedures to allow the
use
of
adjusted
standards in lieu of site—specific rulemakings:
R90—17
119
PCB
181,
February
28,
1991;
15
Ill.
Reg.
7934,
effective
May
9,
1991.
48
Waste generators have filed Part 106 adjusted standard
petitions for solid waste determinations
with
the
Board
pursuant
to Section 720.130
(generator name in parentheses):
AS89—4
Dismissed at 105 PCB 269, November 15,
1989.
(Safety-Kleen Corp.)
AS89—5
Dismissed at 113 PCB 111, July 3,
1990.
(Safety—
Kleen Corp.)
AS9O—7
Dismissed at 124 PCB
125,
July
11,
1991.
(Quantum
Chemical Co.)
Waste
generators
have
filed
Part
106
adjusted
standard
petitions
for
hazardous
waste
delistings
with
the
Board pursuant
to Section 720.122
(generator name in parentheses):
AS91—1
Granted at
130 PCB
113,
February 6,
1992, and
modified at
133 PCB
189,
April 23,
1992.
(Keystone
Steel
&
Wire
Co.)
AS91-3
Granted
at 139 PCB
121,
February
4,
1993;
opinion
issued at
140 PCB —-,
March 11,
1993.
(Peoria
Disposal Co.)
AS93-7
Granted
at
-— PCB --,
February
17,
1994.
(Keystone
Steel
&
WireCo.)
A594-10
Granted at
-- PCB —-,
December
14,
1994.
(Envirite Corporation.)
The Board has procedures to be followed in cases before it
involving the RCRA Subtitle C regulations:
R84—10
62
PCB 87,
349,
December 20,
1984 and January 10,
1985;
9 Ill. Reg.
1383,
effective
January
16,
1985.
The
Board
also
adopted
special
procedures to be followed in
certain
determinations
under
Part
106.
The
Board
adopted
these
Part
106
special
procedures
in
R85—22
and
amended them in R86-46,
listed
above.
One Part 106 adjusted standard proceeding filed pursuant to
728.106
sought
relief
from
a
prohibition
against
land
disposal
(petitioner’s name in parentheses):
A590—6
Dismissed
at
136
PCB 93,
September
17,
1992.
(Marathon
Petroleum
Co.)
49
Other adjusted standard proceedings sought relief from
aspects of the land disposal unit closure and post—closure care
requirements
(petitioners’ names
in parentheses):
AS9O—8
130 PCB 349, February 27,
1992.
(Olin Corp.)
A591—4
131
PCB
43,
March
11,
1992.
(Amoco
Oil
Co.)
One adjusted standard proceeding sought relief from a RCRA
Subtitle C land disposal restriction (petitioner’s name in
parentheses):
AS9O—6
136 PCB 6, September 17,
1992.
(Marathon
Petroleum Co.)
Still another adjusted standard proceeding relates to
substantive treatment,
storage, and disposal facility
requirements of the RCRA Subtitle C regulations
(petitioner’s
name and requirements involved in parentheses):
AS91—10
Dismissed at
—— PCB
——,
May
19,
1994.
(Cabot
Corp.; secondary containment for tanks)
In another regulatory proceeding,
the Board has considered
granting temporary relief from the termination of an exclusion of
a hazardous waste listing in the form of an emergency rule (Peti-
tioner’s name in parentheses):
R91—11
Dismissed at 125 PCB 295, August 8,
1991.
(Big
River Zinc Corp.)
The Board has also adopted requirements limiting and
restricting the landfilling of liquid hazardous wastes, hazardous
wastes containing halogenated compounds,
and hazardous wastes
generally:
R81—25
60 PCB 381,
October 25,
1984;
8 Ill. Reg.
24124,
December
14,
1984,
effective December
4,
1984.
R83—28
68 PCB
295,
February
26,
1986;
10
Ill.
Reg.
4875,
March
21,
1986,
effective
March
7,
1986.
R86—9
Emergency
regulations adopted at
73 PCB 427,
October 23,
1986;
10 Ill. Reg.
19787, November 21,
1986, effective November 5,
1986.
The Board’s action in adopting emergency regulations in R86-
9 was reversed by the First District Court of Appeals.
(Citizens
for a Better Environment v.
PCB,
152 Ill. App.
3d 105, 504 N.E.2d
166
(1st
Dist.
1987).)
50
History
of
UIC
Rules Adoption
The
Board
has
adopted
and
amended Underground Injection
Control
(UIC)
regulations in several dockets to correspond with
the federal regulations.
One such docket, R82-18, was a RCRA
Subtitle C docket.
U.S. EPA authorized the Illinois
UIC
program
on March
3,
1984,
at 49 Fed.
Reg. 3991
(Feb.
1,
1984); codified
that approval as 40
CFR
147,
Subpart 0, at 49 Fed.
Reg. 20197
(Nay 11,
1984); and amended the authorization at 53 Fed. Reg.
43087
(Oct.
25,
1988).
The entire listing of all UIC rulemakings
follows (with the period of corresponding federal revisions
indicated in parentheses):
R81—32
47 PCB 93, May 13,
1982;
6
Ill. Reg.
12479,
October 15,
1982,
effective February
1,
1984.
(7/7/81 through 11/23/81)
R82—18
51 PCB 31, January
13,
1983;
7 Ill.
Reg.
2518,
March
4,
1983,
effective May 17,
1982.
(11/11/81
through 6/24/82)
R83—39
55 PCB 319, December 15,
1983;
7 Ill. Reg. 17338,
December
20,
1983, effective December
19,
1983.
(4/1/83)
R85—23
70 PCB 311
& 71 PCB
108, June 20
& July 11,
1986;
10 Ill. Reg.
13274,
August
8,
1986, effective July
28
&
29,
1986.
(5/11/84
through
11/15/84)
R86—27
Dismissed at 77 PCB 234, April 16,
1987.
(No U.S.
EPA
amendments
through
12/31/86).
R87—29
85 PCB
307,
January
21,
1988;
12
Ill.
Reg.
6673,
April
8,
1988,
effective March 28,
1988.
(1/1/87
through 6/30/87)
R88—2
90
PCB
679,
June 30,
1988;
12
Ill. Reg.
13700,
August 26,
1988, effective August 16,
1988.
(7/1/87 through 12/31/87)
R88—17
94 PCB 227, December 15,
1988;
13
Ill. Reg.
478,
January 13,
1989, effective December
30,
1988.
(1/1/88 through 6/30/88)
R89—2
107
PCB 369,
January
25,
1990;
14
Ill.
Reg.
3059,
March
2,
1990, effective February 20,
1990.
(7/1/88
through
12/31/88)
R89—11
111
PCB 489,
May
24,
1990;
14
Ill.
Reg.
11948,
July
20,
1990,
effective
July
9,
1990.
(1/1/89
through 11/30/89)
51
R90—5
Dismissed at 109 PCB 627, March 22,
1990.
(No
U.S. EPA amendments 12/1/89 through 12/31/89)
R90—14
122 PCB 335, May 23,
1991;
15 Ill. Reg.
11425,
effective July 24, 1991.
(1/1/90 through 6/30/90)
R91—4
Dismissed at 119 PCB 219, February 28,
1991.
(No
U.S. EPA amendments 9/1/90
through
12/31/90)
R91—16
Dismissed at
128 PCB 229,
December 6,
1991.
(No
U.S. EPA amendments 1/1/90 through 6/30/91)
R92—4
Dismissed at 133 PCB 107, April
9,
1992.
(No U.S.
EPA amendments 7/1/91 through 12/31/91)
R92—13
139 PCB 361, February
4,
1993;
17 Ill. Reg.
6190,
effective April
5,
1993.
(1/1/92 through 6/30/92)
R93—6
—— PCB ——,
August
5, 1993;
17 Ill.
Reg.
15641,
effective September
14,
1993.
(7/1/92 through
12/31/92)
R93—17
Dismissed at
-— PCB —-,
September 23,
1993.
(No
U.S. EPA amendments
1/1/93 through 6/30/93)
R94—5
—— PCB ——,
November 3,
1994;
18 Ill. Reg.
18244,
effective December 20,
1994.
(7/1/93 through
12/31/93)
R94-24
—- PCB
-—,
October
6,
1994.
(U.S. EPA
amendments
7/1/93 through 12/31/94 included in RCRA Subtitle
C docket R94-17)
R95-4
Present Docket; proposed March 2,
1995, with
Notices of Proposed Amendments in the Illinois
Register on March 24, 1995.
(Consolidated with
R95-6, RCRA Subtitle C Update.)
(7/1/94 through
12/31/94)
In one proceeding filed,
the Board granted an adjusted
standard from a
UIC
land disposal restriction, pursuant to the
procedures outlined above with respect to the RCRA Subtitle C
program (petitioner name in parentheses):
AS92-8
Granted at
—- PCB
--,
February
17,
1994.
(Cabot
Corp.;
no migration exception)
AGENCY OR BOARD ACTION?
Section 7.2(a) (5)
of the Act requires the Board to specify
which decisions USEPA will retain.
In addition, the Board is to
52
specify which State agency is to make decisions, based on the
general division of functions within the Act and other Illinois
statutes.
In situations in which the Board has determined that USEPA
will retain decision-making authority,
the Board has replaced
“Regional Administrator” with USEPA, so as to avoid specifying
which office within USEPA is to make a decision.
In a few instances in identical in substance rules,
decisions are not appropriate for Agency action pursuant to a
permit
application.
Among
the
considerations
in
determining
the
general division of authority between the Agency and the Board
are:
1.
Is
the
person
making
the
decision
applying
a
Board
regulation, or taking action contrary to
(“waiving”)
a Board
regulation?
It generally takes some form of Board action to
“waive” a Board regulation.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency decision?
3.
Does the action result in exemption from the permit
requirement itself?
If so, Board action
is generally
required.
4.
Does the decision amount to “determining, defining or
implementing environmental control standards” within the
meaning of Section 5(b)
of the Act.
If so,
it must be made
by the Board.
There are four common classes of Board decision:
variance,
adjusted standard, site specific rulemaking, and enforcement.
The first three are methods by which a regulation can be
temporarily postponed (variance)
or adjusted to meet specific
situations
(adjusted standard or site specific rulemaking).
Note
that there often are differences in the nomenclature for these
decisions between the USEPA and Board regulations.
EDITORIAL
CONVENTIONS
As a final note, the federal rules have been edited to
establish a uniform usage throughout the Board’s regulations.
For example, with respect to “shall”,
“will”,
and “may”
—
“shall”
is used when the subject of a sentence has to do something.
“Must”
is used when someone has to do something, but that someone
is not the subject of the sentence.
“Will” is used when the
Board obliges itself to do something.
“May”
is used when choice
of a provision is optional.
“Or” is used rather than “and/or”,
and
denotes
“one
or
both”.
both”.
“And”
denotes
“both”
53
“Either”...“or” denotes “one but not
Board
Member
N.
McFawn
concurred
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
certify that t
above opinion was adopted by the Board on
the
/44’
day of
____________,
1995,
by a vote of
7~c)
Dorothy
M.
Illinois P0,
Control
Board
