ILLINOIS POLLUTION CONTROL BOARD
December 16,
1993
IN THE MATTER OF:
)
R93—16
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(1—1—93 THROUGH 6—30—93)
)
Proposal for Public Comment.
PROPOSED OPINION OF THE BOARD
(by E. Dunham):
Pursuant to Section 22.4(a)
of the Environmental Protection
Act (Act), the Board adopts amendments to the RCRA hazardous
waste
(RCRA) regulations.
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.
SS
6921-6925)
and that Title VII of the Act and Section 5 of the
Administrative Procedure Act
(APA)
shall not apply.
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.
FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING
This rulemaking updates the Illinois RCR.A Subtitle C rules
to correspond with federal amendments made in the period from
January 1 through June 30,
1993.
The U.S. EPA actions during
this period are as follows:
Federal Action
Summary
58 Fed. Reg. 8658
(Feb.
16,
1993)
Corrective Action
Management Unit (CANU)
and Temporary Unit (TU)
regulations applicable to
RCRA Subtitle C
corrective actions
58 Fed. Reg. 14317
(Mar.
17,
1993) Amendments to land
disposal restrictions for
Third Third wastes.
58 Fed. Reg.
26420
(May 3,
1993)
Technical amendments to
the used and waste oil
management standards
58 Fed.
Reg.
28506
(May 14,
1993)
Renewal of case—by—case
capacity variance from
2
the land disposal
restrictions for
hazardous debris
58 Fed. Reg. 29860
(Nay 24,
1993)
Land disposal restric-
tions for ignitable and
corrosive wastes whose
treatment standards were
vacated
The Board dealt with the latter amendments of May 24,
1993
in the preceding docket, R93—4.
As was discussed in that
proceeding, U.S. EPA responded to the judicial remand in Chemical
Waste Management v. EPA, 976 F.2d
2
(D.C. Cir.
1992),
in those
amendments.
U.S. EPA stated in its preamble discussion that it
acted promptly to avoid an absolute ban on land disposal of the
wastes involved.
The Board did not delay further action until
this docket for that reason.
Therefore, the present amendments
do not include the federal actions of May 24,
1993, except as
discussed below with regard to corrections to Section
703.Appendix A prompted by PC 1.
PUBLIC COMMENTS
The Board will receive public comment on this proposal for a
period of 45 days following its publication in the Illinois
Register.
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 proposed
amendments follows the discussions of this opinion.
On November
30,
1993,
the Board received a comment from U.S.
EPA Region V on the text of R93-4,
already adopted and filed with
the Secretary of State.
The Board will deal with the U.S. EPA
comments in this docket,
since it is now impossible to do so in
R93-4.
The public comment received is docketed in this
proceeding,
thus:
PC
1 U.S. EPA Region V, Waste Management Division (11-30—93,
by Norman R. Niedergang, Associate Division Director
for RCRA)
PC
1 makes substantive comments on two Sections involved in R93—
4.
The Board considers the comments
in appropriate segments of
the detailed discussions below.
HISTORY OF RCRA SUBTITLE C, UST and UIC ADOPTION
AGENCY OR BOARD ACTION?
EDITORIAL CONVENTIONS
The Board appended three routine discussions at the end of
this opinion.
The first is a summary history of the Illinois
3
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 determina+ions, 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 four federal actions that underlie this proceeding each
have a distinct impact on the Illinois RCRA Subtitle C
regulations.
This segment of the discussion briefly focuses on
each by subject matter.
The more detailed Section-by-Section
discussions that follow indicate the specific details of the
actions taken by the Board.
Corrective Action
CAMU
and TU Rules
The U.S. EPA action of February 16,
1993 instituted a set of
specialized regulations appli:able to RCRA Subtitle C corrective
actions.
Under the Hazardous and Solid Waste Amendments of 1984
(HSWA), Congress mandated corrective action at RCRA Subtitle C-
regulated facilities.
Section 3004(u)
of RCRA,
as amended under
HSWA,
requires U.S. EPA to address corrective action for all
releases from regulated facilities in issuing permits.
Under
section 3008(h),
U.S. EPA can issue an administrative order
requiring corrective action at unpermitted interim status
facilities.
Finally, section 3004(v) authorizes U.S. EPA to
require reinediation of releases that have migrated beyond the
boundary of a facility.
The February 16 amendments implement a
regulatory framework for implementing corrective actions.
U.S.
EPA intends to implement more comprehensive facilities standards
rules at a future time.
In many respects, the February 16,
1993
CANU
and TU
amendments represent a relaxation of existing treatment, storage,
and disposal facility (T/S/D)
standards.
U.S. EPA intended this
to give greater flexibility in implementing corrective action at
a site and to avoid the impediments to corrective action rosed by
those existing standards at RCRA Subtitle C and Superfund
sites.
U.S. EPA implemented these limited segments with the stated hope
The Comprehensive Environmental Response, Compensation, and
Liability Act of
1990
(CERCLA,
42
U.S.C.
SS
9601
et
sea.),
also
known as “Superfund”.
4
of realizing the benefits they would confer on a more accelerated
basis.
However,
U.S. EPA cautioned in the preamble discussion
that its adoption of these
CAMU
and TU rules does not affect the
existing closure regulations and requirements for RCRA Subtitle
C-regulated T/S/Ds.
In general, the federal amendments added definitions for
“CANU”
and “remediation waste”, added CANUs to the definitions of
“facility” and “miscellaneous facility”,
and excluded CANUs from
the definitions of “disposal facility” and “landfill”.
The
CANU
facility standards of subpart S of part 264 now apply to interim
status T/S/Ds, which are otherwise exempted from the part 264
T/S/D standards.
In the first of the two new sections that
constitute new subpart 5, the Regional Administrator is
authorized to designate one or more CAMUs within a facility
boundary to accommodate remedial waste, and management of such
waste within the designated area does not constitute disposal of
hazardous waste,
and it is not subject to minimum technology
standards.
Otherwise, the releases, closure and post—closure
care, and financial responsibility requirements of part 264 or
265 apply to the unit.
That section imposes other management
requirements on the CANU.
The second new section allows the
Regional Administrator to designate one or more temporary units
(TUs) within a facility for the temporary storage or treatment of
remediation wastes.
In designating a TU, the Regional
Administrator is required to impose conditions on the management
of wastes within the TU.
The designation of a
CANU
or TU is
considered a facility permit modification.
Amendments to Third Third Land Disiosal Restrictions
U.S. EPA adopted the Third Third land disposal restrictions
on June 1,
1990, at 55 Fed. Reg.
22520.
It issued technical
corrective amendments with regard to reactive cyanide— and
sulfide-bearing wastes on March
6, 1992,
at 57 Fed. Reg.
8086.
(The Board adopted the Third Third regulations in docket R91-1,
on August
8,
1991,
and the corrections in R92-10, on January 21,
1993.)
In issuing the technical corrections, U.S. EPA rendered
the corrective amendments effective immediately.
The amendments
of March 17,
1993 suspended portions of the corrective language
in 40 CFR 268.3(b)
(D003 reactive cyanide wastewaters and
nonwastewaters)
and 268.42(a) Table
2
(D003 reactive sulfide
wastewaters) until June 17,
1993.
In the past,
the Board has not
amended our regulations to codify past federal effective dates.
Therefore, we note the federal action at this ~
but we do
not amend the regulations to codify the past date.
Corrective Amendments to the Used
& Waste Oil Reaulations
Section 3006(h)
of RCRA,
as added by the Superfund
Amendments and Reauthorization Act of 1986
(SARA),
authorized
U.S. EPA to establish minimum standards for state programs to
5
regulate used and waste oil.
On May 20,
1992, at 57 Fed. Reg.
21524, U.S. EPA decided not to deem used oil as a listed
hazardous waste, and it created a limited exception for drained,
used oil—filters from hazardous waste regulation.
On September
10,
1992, at 57 Fed. Reg. 41566, U.S. EPA adopted regulations~
that established standards for the management of used oil for
recycling.
(The Board adopted the used oil filter exception in
docket R92-10 and the used oil recycling standards in docket R93-
4, on September 23,
1993.)
The base used—oil recycling
requirements, established as new part 279, provided minimum
standards for the management of used oil for recycling apart from
the general T/S/D standards of parts 264 and 265.
The
regulations further provided for federal authorization of state
programs to regulate used oil for recycling.
On May 3,
1993, U.S. EPA adopted corrections to these used
oil rules,
at 58 Fed. Reg.
26420.
U.S. EPA corrected errors as
to the HSWA status of various of the requirements.
U.S. EPA
further made numerous technical corrections and amendments to the
rules.
These are discussed in detail in the discussions of the
Part 739 amendments below.
Renewal of Hazardous Debris Caiacitv Variance
On May 8,
1992,
at 57 Fed. Reg.
20766
(May 15,
1992), U.S.
EPA adopted a one-year case-by—case capacity variance from the
land disposal restrictions for certain hazardous debris.
At 58
Fed.
Reg.
28506
(May 14,
1993), on May 8,
1993,
it extended that
variance until Nay 8,
1994.
U.S. EPA stated that this will delay
the applicability of the land disposal restrictions to the
covered hazardous debris to the maximum extent allowed by federal
statute,
so no further extensions or variances may be granted.
The detailed discussions below of the Part 728 amendments
indicates the exact nature of the wastes covered.
DETAILED DISCUSSION
General Revisions
The Board will begin to change our method of referring to
the United States Environmental Protection Agency in this present
rulemaking.
We have begun to refer to “U.S. EPA”, which we
believe is more conventional than “USEPA” and clearer that “EPA”.
Thus,
since segments of the used oil regulations refer to both a
“U.S.
EPA identification number” and an “Illinois special waste
identification number”, we use these labels for distinction.
We
further have begun to refer to the “U.S. EPA hazardous waste
number” for similar clarity.
This changed usage occurrs 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.
Therefore,
the critical definitions in
Sections 702.110 and 720.110 that use “EPA” or “USEPA” as part of
6
the defined term,
such as “EPA”,
“EPA hazardous waste number”,
and “EPA identification number”, will retain the former
designations in parallel to added references to “U.S. EPA”.
These amendments appear in the existing text of Sections 702.110,
720.110, 721.104,
721.105, 728.102, 739.110, and 739.152.
Classifications of Permit Modifications--Section 703.Appendix A
U.S. EPA amended 40 CFR 270.42 Appendix I, from which 35
Ill.
Adin. Code 703.Appendix A derives, at 58 Fed. Reg. 8685
(Feb.
16,
1993), as part of the corrective action management unit
(CANU) and temporary unit
(TU)
rules.
The amendments deem the
approval of a
CANU
a Class
3 permit modification and of a TU a
Class
2 permit modification.
The Board has incorporated the federal amendments without
substantive deviation as N.
We corrected a few omissions from
the text of the pre-existing U.S. EPA base text and made two
routine amendments.
The Board has interpreted
“*“
and ‘“““in the
federal rules as the same as
~
and added the
“*“
notation in
its place to the entries for items B(1)(b),
F(4)(b), G(1)(e),
and
G(5) (c).
We moved the meaning of the
“*“
notation from after
item A(5) (a) to the very end of the Appendix, but before the
final Board Note.
Since U.S. EPA applied the
“i”
notation to the
Class
2 modification of item C(4), we deleted the federal “Class
1 modifications” limitation from the language.
Further, we added
the notes relating to a change in facility plans and 40 CFR
270.42
(35 Ill.
Adm. Code 703.280(g)) that appear in the federal
text to the ends of the B,
G, and H entries.
As to the routine
amendments, we updated the Board Note at the end of the Section,
to indicate the amended source, and we changed
“+/—“
to the
scientific symbol
“±“,
at item G.3.
With prior word processing
systems, the Board’s ability to reproduce technical symbols was
limited, so we made substitutions using common keyboard
characters.
However, our modern word processing equipment allows
us to use these commonly understood technical symbols as they
appear in the federal base text.
In PC 1, U.S. EPA comments that the Board omitted certain
language in R93-4,
which U.S. EPA added to 40 CFR 270.42,
Appendix I, at 58 Fed.
Reg. 29887
(Nay 24,
1993).
U.S. EPA
amended this provision by renumbering item B(1)
(C)
to B(1) (d),
removing the second item B(1) (b)
(U.S. EPA previously had two
identical item B(1) (b)
entries), and adding new language for item
8(1) (C).
The Board made the nec~sarychanges relating to items
8(1) (c) and B(1) (d)
in corresponding Section 703.Appendix A in
this proceeding.
However,
since the duplicate entry for item
B(1) (b) never appeared in the Illinois regulations, no change was
necessary to that item.
The Board invites public comment on our
approach to this Section.
7
Definitions——Sections 702.110.
720.110. 728.102
& 739.100
Section 702.110 derives from 40 CFR 270.2, the definitions
provision applicable to the permitting rules.
U.S.
EPA amended
section 270.2 at
58 Fed. Reg. 8685
(Feb.
16,
1993),
as part of
the
CAMtJ
rules amendments.
U.S. EPA added a definition of
“corrective action management unit” and amended the definition of
“disposal facility”.
Section 720.110 is the general definitions provision for the
entire RCRA Subtitle C regulatory program.
It derives directly
from 40 CFR 260.10, which U.S. EPA amended at 58
Fed.
Reg. 8683
by adding a definitions of “corrective action management unit”
and “remediation waste” and amending the definitions of “disposal
facility”,
“facility”,
“landfill”, and “miscellaneous unit”.
Section 728.102 includes the definitions specific to the
land disposal restrictions.
It derives from 40 CFR 268.2.
U.S.
EPA amended the section 268.2(c) definition of “land disposal” at
58 Fed. Reg.
8685.
The Board adopts the federal language of the new definitions
of “CAMU” and “remediation waste” and the amended definitions of
“disposal facility”,
“facility”,
“landfill”, and “miscellaneous
unit”
in Sections 702.110, 720.110, and 728.102 with only minimal
deviation from the federal text.
The definitions of “CAMU” and
“disposal facility” are identical in Sections 702.110 and
720.110.
As amended, the definitions of “disposal unit”
(in
Sections 702.110 and 720.110),
“land disposal”
(in Section
728.102),
“landfill”
(in Section 720.110) and “miscellaneous
unit”
(in Section 720.110) now exclude CAMUs.
The
definition of
“facility”
(in Section 720.110) now expressly includes all
contiguous property for which a permit is sought where corrective
action is involved.
The Board does deviate slightly from the exact language of
the federal amendments in some slight ways.
We changed “Regional
Administrator” in the definition of “CAMU” to “Agency”, as is our
customary practice.
We added a Board Note to the definitions of
“CAMU” to indicate that members of the regulated community must
also obtain U.S. EPA approval of a
CAMU
until US.
EPA authorizes
the corresponding Illinois regulations.
The
CANU
rules are HSWA—
derived, as is noted at new Section 724.652.
Hence,
the federal
regulations took effect in Illinois on April
19, 1993.
(~
40
CFR 271.1 Table
1,
as amended at 58 Fed. Reg. 8685
(Feb.
16,
1993).)
We also added a parenthetical to the definitions that
refer to a “corrective action management unit” that indicates the
abbreviation “CANU”.
In the definition of “remediation waste” we
use “that” as the preferred usage for a restrictive relative
clause, reserving “which” for non-restrictive relative clauses,
for restrictive relative clauses that begin with a preposition,
and for subsequent restrictive relative clauses in the same
8
sentences.
In the Section 720.110 definition of “landfill”, the
Board adds
“a salt bed formation”, originally included by U.S.
EPA at 52 Fed. Reg. 46963
(Dec.
10,
1987), but omitted by the
Board until now.
Similarly,
in amending the definition of
“facility”, we add commas for clarity; these were included in the
original by U.S. EPA, but previously omitted by the Board.
The definitions of Section 739.100 relate to the used oil
management standards of Part 739.
They derive from 40 CFR 279.1,
which U.S. EPA amended at 58 Fed. Reg. 26425,
as part of its
corrective amendments.
U.S. EPA corrected a misspelling of “if”
to “is” in the definition of “used oil”.
The Board adopts the
federal amendment without deviation.
We invite public comment on
our approach to the four definitions Sections.
Exclusions from the Definition of Solid Waste——Section 721.104
Section 721.104 derives from 40 CFR 261.4, which U.S. EPA
amended at 58 Fed. Reg. 26424
(Nay
3,
1993),
as part of the used
oil corrections.
U.S. EPA deleted paragraphs
(b)(l3) and
(b) (14),
formerly reserved; renumbered paragraph
(b) (15) to
(b)(13); and added a new paragraph (b)(14).
New federal
paragraph
(b) (14) now excludes used oil re-refining distillation
bottoms that are used as feedstock in asphalt manufacture from
the definition of solid waste.
The Board adopts the federal
language without change.
We invite public comment on our
approach to this Section.
Qualified Small quantity Generator Exclusion from Recrulation--
Section 721.105
U.S. EPA amended 40 CFR 261.5(j)
as part of the used oil
corrective amendments, at 58 Fed.
Reg. 26424
(May 3,
1993).
This
corresponds with Section 721.105(j)
of the Illinois regulations.
Formerly, hazardous wastes from a small quantity generator that
were mixed with used oil and destined for burning for energy
recovery were subjected to subpart G of part 279
(35 Ill.
Adm.
Code 739.Subpart G).
The corrective amendment of this paragraph
subjects those mixed wastes to the whole of part 279
(Part 739).
The Board adopts the federal amendment without change.
We invite
public comment on our amendment to this Section.
Applicability of Treatment,
Storacre, and Disposal Facility
(T/S/D) Standards——~ction724.101
Section 724.101 derives from 40 CFR 264.1, which U.S. EPA
amended at 58 Fed. Reg. 26424
(Nay 3,
1993),
as part of the used
oil management amendments.
U.S. EPA amended paragraph
(g) (2)
so
that recycling facilities managing used oil that is a hazardous
waste solely because
it
exhibits a characteristic of hazardous
waste are not subjected to the TfS/D standards of federal part
264
(Illinois Part 724).
U.S.
EPA accomplished this by adding a
9
reference to 40 CFR 261.6(a)(4)
(corresponding with 35 Ill.
Adin.
Code 721.106(a) (4)) and to the alternative standards of federal
part 279
(Illinois Part 739).
The Board adopted the federal
amendments without revision.
However,
in doing so, we note that the former Illinois
subsection
(f) (2) corresponded with federal paragraph
(g) (2).
This was because the Board never adopted a counterpart to federal
subsection
(f).
We did so because federal subsection
(f)
outlined the applicability of the federal T/S/D standards in
authorized states.
Thus, this provision was not a necessary
element of the Illinois program.
In order to maintain linear
structural parity with the federal regulation, the Board has now
adopted “filler” language as subsection
(f) that explains the
scope of the corresponding federal provision,
and we have
renumbered former subsection
(f)
to subsection
(g).
We invite
public comment on our amendments to Section 724.101.
Relationship of
CANtJ
Rules with Interim Status and Permitted
Facility T/S/D Requirements——Sections 724.103, 724.201
& 725.3.01
U.S. EPA amended 40 CFR 264.3 and 264.101(b)
at 58 Fed. Reg.
8683
(Feb.
16, 1993)
and 40 CFR 265.1(b)
at 58 Fed. Reg.
8685, as
part of the
CAMU
rules.
The amendments essentially make the
applicability of the corrective action provisions of part 264,
subpart 5
(35 Ill. Adm. Code 724.Subpart S) applicable to interim
status facilities and to corrective actions.
The Board adopted
the federal amendments without revision.
We do this noting that
U.S. EPA references subpart S in section 264.3 and sections
264.552 and 264.553 in section 265.101(b).
This presents no
problem at this time, since 40 CFR 264, subpart S includes only
those two sections at this time, but if U.S. EPA intends further
generally applicable additions to subpart
S, this disparity might
present problems.
In addition to adopting the federal
amendments,
the Board has corrected the formerly improper and
incomplete use of an
“rn” dash in Section 724.103 and restored the
phrase “in accordance with this Section in Section 724.201(b).
We invite public comment on our approach to this Section.
Relationship of Used Oil Rules with Interim Status and Permitted
Facility T/S/D Requirements——Sections 724.101
& 725.101
U.S. EPA amended 40 CFR 264.1(g) (2) and 265.1(c) (6)
at 58
Fed. Reg. 26424
(May 3,
1993)
as part of the used oil corrections
and technical amendments.
In the original used oil regulations,
U.S. EPA added an exclusion at 40 CFR 261.6(a) (4)
from the
applicability of parts 260 through 268 for certain used oil that
is recycled.
However,
U.S. EPA did not reference this exclusion
in the applicability statements of parts 264 and 265.
It further
did not expressly reference the applicable requirements of new
part 279.
The corrections add these references to both
applicability sections 264.1(g) (2) and 264(c)(6).
The Board has
10
adopted the federal language without revision.
We invite public
comment on our approach to this Section.
CANU
and TU Requirements——Sections 724.652 and 724.653
U.S. EPA added 40 CFR 264, subpart S at 58 Fed. Reg. 8683-84
(Feb.
16,
1993).
These two new sections, 264.552 and 264.553,
set forth the basic requirements for corrective action management
units
(CAMU5) and temporary units
(TUs),
respectively.
Section
264.552 sets forth the requirements for what can constitute a
CAMU,
the procedure for designation of a
CAMU,
the T/S/D
standards that continue to apply to a CANU, and the CAMU-specific
groundwater monitoring and closure and post—closure care for a
CAMU.
Similarly, Section 724.553 sets forth the approval of
alterrative management requirements for a temporary unit.
Whereas the
CAMU
provision sets forth general standards for
management of the CAMU, the TU provision is somewhat more
flexible;
it allows the U.S. EPA Regional Administrator to
establish “alternative requirements” applicable to the TU.
The
federal provision sets forth the standard for granting TU status:
that the alternative standards “are protective of human health
and the environment”.
It also lists a number of factors for
consideration in granting (and extending) TU status.
Adapting
this provision to the Illinois regulatory scheme presents a
challenge.
The Board must codify standards for Agency determination for
the TU determination before the Agency can make them by way of
permit decision.
The Act authorizes the Agency to make all
permit decisions, and it reserves in the Board the authority to
make variance and adjusted standards determinations.
The Agency
must act pursuant to standards established by the Board,
but it
allows the Agency to employ those standards to derive permit
limitations.
See Granite City Division of National Steel Co.
v.
~
(Apr.
15, 1993),
155 Ill. 2d 149,
613 N.E.2d 719.
This would
mean that in the absence of standards for Agency decisiornnaking,
the TU determination would be reserved to the Board as a variance
or adjusted standard decision.
However, infusing these
procedures into TU determinations would lose the very quick
flexibility U.S. EPA seems to intend in this provision.
It would appear that U.S. EPA intended the TU determination
as a permit decision based on the parallel amendments to 40 CFR
270.42,
‘ppendix I, discussed above,
in which U.S. EPA designates
this a Class
2 permit modification.
However, the “protective of
human health and the environment” standard is too nebulous.
A
couple of options are available, and the Board prefers the one
that we have codified.
On the one hand, we could reserve the
determination to the Board,
similar to the solid waste
determination and hazardous waste delisting decisions are
reserved under 35 Ill. Adm. Code 720.Subpart C.
However,
as
11
already mentioned, this could defeat part of the purpose behind
the federal provision.
On the other hand,
the Board could devise
a standard for permit issuance, thus,
vesting the decision in the
Agency.
This is the preferred approach taken.
To add the necessary definiteness to the U.S. EPA standard
for TU designation, we use the very standards of Parts 724 and
725 from which the alternative requirements are sought.
We
render the federal language thus (with deviations from the
federal language underlined):
For temporary tanks and container storage areas used
for treatment or storage of hazardous remediation
wastes, during remedial activities required under
Section 724.201 or RCRA section 3008(h), the Agency
shall establish alternative requirements pursuant to
this Section if
it determine~that a design,
operating,
or closure standard applicable to such units may be
replaced by alternative requirements that j~e~al1yas
protective of human health and the environment as would
be the standards of this part or of 35 Ill.
Adm. Code
725,
if a~t1ied.
We believe that if this is not what U.S. EPA actually intended,
it is at least as stringent as the federal standard.
The Board
believes that the deviations from the federal base text are
acceptable under the Act--especially in light of the federally-
enumerated factors for Agency determination in Subsection
(c).
We believe that by outlining standards for Agency
determination pursuant to Section 39 of the Act, the Board has
properly made this a permit decision charged to the Agency,
rather than a variance or adjusted standard decision reserved to
the Board.
We believe this is especially true in light of the
fact that the Agency’s permit decision is subject to Board review
under Section 40 of the Act.
Thus, we believe that the Board has
adequately addressed the requirinents outlined by the supreme
court in Granite City Steel.
Aside from the above-described additions to the federal text
at Section 724.653(a) and
(c), the Board has adopted the federal
language of these Sections with minimal deviation.
For enhanced
clarity in the language, the Board added a subsection heading to
Section 724.652(b); reworded the opening of Section
724.652(b) (2); added “factors” to Section 724.652(c); added or
omitted punctuation from Sections 724.652(b) (1) (B),
(c) (3),
(c)(4),
(e),
(e)(2), and
(e)(4)(B) and 724.653(e); used singular
pronouns in Section 724.652(b) (1)
and
(c) (4); substituted “or”
for
“/“
and “standards” for “criteria” at Section 724.652(d);
substituted “groundwater” for “ground water” as Section
724.652(e) (3); added the definite article to segments of Sections
724.652(e) (4) (B) and (e)(4)(C) and 724.653(c); substituted “that”
12
for “which” at Sections 724.652(e)(4)(C)(ii)
and 724.653(c)(6);
and reworded Section 724.653(d).
Since U.S. EPA promulgated the
CANU
rules pursuant to HSWA,
the federal rules are immediately effective in Illinois.
After
U.S. EPA has authorized the Illinois
CAMU
rules, the Illinois
rules will become primary.
Until then,
compliance with the
federal
(and Illinois) rules is required of facilities in
Illinois.
For the convenience of the regulated community, the
Board has added Board Notes to both Sections 724.652 and 724.653
to indicate the need to obtain federal authorization of a
CANU
or
TU.
We invite comment on our approach to the CAMU rules,
especially with regard to our rendering the TU determination an
Agency permit decision subject to challenge before the Board.
Treatment Standards for lanitable and Corrosive Wastes——Section
728.109
On Nay 24,
1993,
U.S. EPA amended 40 CFR 268.9,
at 58 Fed.
Reg.
29885,
in response to the remand in Chemical Waste
Manaciement
V.
EPA,
976 F.2d
2
(D.C. dr.
1992).
As discussed
above, the Board dealt with these amendments promptly,
in docket
R93-4.
PC 1 highlights the omission of several words from the
added federal language.
We add the missing words without
deviation from the federal text.
We invite public comments on
the restoration of the missing language.
Renewal of Case—by—Case Capacity Variance for Hazardous Debris
from the Land Disposal Restrictions--Section 728.135
U.S. EPA amended 40 CFR 268.35(e) at 58 Fed. Reg. 28510
(May
14,
1993).
By these amendments, U.S. EPA extended for one year,
from May 8,
1993 through Nay 8,
1994, the case-by—case capacity
variance for certain hazardous debris originally granted at 57
Fed. Reg. 20766
(Nay 15,
1992)
(involved in R92—l0).
In
extending the variance, U.S. EPA added conditions.
These include
a “good—faith” requirement that the waste generator attempt to
locate treatment capacity for the debris.
U.S. EPA required the
generators wishing to avail themselves of the variance to have
filed a report by the later of August 12,
1993 or 90 days after
generation of the waste.
U.S.
EPA also added a definition of
debris.
In adapting the text of the federal amendments to Section
728.135, the Board made only minor modifications.
We
repunctuated subsections
(e) (1),
(e) (2), and
(e) (5) (B); added
“those two” to subsection
(e) (3); and added “or” to subsection
(e) (5) (B) (vii)
for clarity.
As is our usual custom, the Board
omitted the past effective date from subsection
(e) (3).
On the other hand, the Board found it necessary to retain
the federal August
12,
1993 due date,
even though it is past and
13
would have the appearance of retroactive application, because
this is a HSWA—driven provision.
The federal variance amendments
became effective in Illinois on Nay 8,
1993.
That means that,
effective Nay 8,
1993, all Illinois facilities wishing to take
advantage of the federal variance were to have submitted the
necessary documentation by August 12.
That means that even
though the variance will not become effective until long after
August 12,
1993,
those wishing to use it must have made the
appropriate federal submissions before that date.
If the Board
were to change this past date,
it would render the Illinois
regulations less stringent than the federal rules by allowing
later submissions of documentation.
We invite comments on our
codification of
the federal case-by—case variance extension,
especially on our handling of the August 12,
1993 federal
deadline.
Corrections to the Used Oil Requlations--Part 739
U.S. EPA adopted a multitude of mostly minor corrections and
amendments to the used oil recycling regulations at 58 Fed. Reg.
26425-26
(May 3,
1993).
The provisions involved included 40 CFR
279.1, 279.10 through 279.12,
279.21 through 279.23, 279.40,
279.42,
279.45,
279.51,
279.52, 279.54, 279.60,
279.62, 279.64,
279.70, and 279.72 through 279.74.
These changes are summarized
as follows:
279.1:
corrected misspelling in definition of “used oil”
279.10(bU2):
added exclusion of a mixture of used oil and
Subpart D listed waste from Part 279, where the mixture
still exhibits the characteristic for which it was listed;
added exclusion from Part 279 of the above mixtures that do
not exhibit the characteristic but which are ignitable
279.10(c):
added exclusion of used oil-containing or
contaminated materials from which the used oil was drained
from Part 279 unless the materials are burned for energy
recovery
279.10(e)(4):
added exclusion from Part 279 of re—refining
distillation bottoms that are used as feedstock in asphalt
manufacture
279.10(i1:
added express cross—reference to TSCA requirements
for marketers and burners of PCB—contaminated used oils
279.11:
added express cross—reference to TSCA requirements for
PCB-containinated used oils
279.12(c)(3):
added RCRA Subtitle C-regulated hazardous waste
incinerators to list of facilities that can burn off-
specification used oil
14
279.21(a):
deleted outright prohibition against mixing used oil
with hazardous waste in favor of regulation according to
general applicability of Part 279
279.22:
removed the exclusion of “de minimis”—used oil-
contaminated wastewaters from Part 279
279.23:
deleted reserved subsection and reformatting of section
279.40(a)(4):
reworded exclusion from regulation for
transportation of used oil from household do-it-yourselfers
to a regulated facility
279.40(d) (4):
removed nonsense phrase
279.42(a):
changed a requirement for notification of activities
into a requirement for renotification
279.42(b)(l):
changed reference to obtaining EPA notification
form
279.43(b):
broadened reference to duty to comply with U.S
•
DOT
requirements
279.45:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to
“generator”
with
“transporter”
279.45(d)
(1) (iii):
added
allowance
of equivalent secondary
containment
systems
for
containers
of used oil at transfer
stations
279.51(a):
changed
a
requirement
for notification of activities
into
a
requirement
for
renotification
279.52(b)
(6) (viii)
(C):
corrected
cross—reference
279.54:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to “generator” with “processors/re—refiners”
279.54(a):
removed a restriction limiting processing to RCRA
Subtitle C—regulated tanks, containers,
or units
279.54(c)(1)(iii):
added allowance of equivalent secondary
containment systems for containers of used oil at processing
and re—refining facilities
279.60(b) (1):
corrected grammar
279.62(a)(1):
added a requirement for renotification to a
requirement for notification of activities
15
279.64:
removed the exclusion of “de minimis”—used oil—
contaminated wastewaters from Part 279; replaced reference
to
“generator”
with
“burners”
279.72(a):
removed exclusion from regulation for used oil burned
for energy recovery that meets the fuel specifications
provision
(in which it is still excluded from regulation)
279.73(a):
added a requirement for renotification to a
requirement for notification of activities
279.74(a):
replaced reference to “generator” with “marketer”
The Board has primarily adopted the federal base text with
minimal change.
The most significant change is in the U.S. EPA
notification requirments of 40 CFR 279.42(a) and 279.51(a),
by
retaining the notification requirement for those who have not yet
notified, which U.S. EPA dropped in its amendments.
In both
provisions, U.S. EPA has required those used oil transporters and
used oil processors that have notified of their activities to
renotify.
U.S. EPA dropped the requirement that those that have
not notified must do so.
We note that in section 279.62(a),
relating to used oil burners, and section 279.73(a), relating to
used oil marketers, U.S. EPA retained the initial notification
requirment while adding a renotification requirinent.
We believe
that U.S. EPA intended both the initial notification and
renotification requirements to apply to used oil transporters and
used oil processors.
For this reason we retained the initial
notification requirments at Sections 739.142(a)
and 739.151(a).
Further, until such a time as U.S. EPA has an opportunity to
correct its rules,
the Board believes that retaining the initial
notification requirement will assist the Agency’s implementation
of these rules.
At the very least, their retention does not
render the Illinois regulations less stringent than or
inconsistent with the federal rules from which they derive.
Another,
less significant modification is making the federal
requirements more consistent by conforming all requirements to
the singular case and adding articles in Sections 739.110(b),
(C),
and
(i); 739.142(a); 739.143(b);
739.145; 739.151(a);
739.154;
739.162(a);
739.164;
and 739.173(a)
and
(b).
The Board
added definite articles to Sections 739.142(b) (1) (B),
739.151(b) (1) (B), 739.152(b) (6) (I), 739.162(b) (2), and
739.173(b)(2).
We also subdivided Section 739.152(b) (6) (H) and
(b) (6) (I)
for greater clarity, replaced a reference erroneously
retained in R93-4 to the Regional Administrator with a reference
to the Agency,
and added “all other” in subsection
(b)(6)(H)(iii).
Finally,
in Section 739.174(a), the Board used
“used oil fuel marketer” for greater clarity.
The Board has further made a number of non—substantive
stylistic changes in the text.
As per our usual practice usage
16
for
affirmative
requirements,
we
substituted
“shall”
for
“must”
in
both
the
existing
and
added
language
of
numerous
Sections.
We
similarly
used
“that”
instead
of
“who”,
except
where
the
object
was
clearly
a
natural
person.
This
meant
opening
Section
739.141
for
the
sole
purpose
of
amending
the
Section
heading.
As
explained
above,
the
Board
also
rendered
references
to
the
federal
agency
as
“U.S.
EPA”
for
enhanced
distinction
from
the
Agency
(also
called
EPA
or
IEPA
by
the
regulated
community).
We
similarly
used
“U.S.
DOT”
and
U.S.
Department
of
Transportation”
in
Section
739.143(b).
Where
we
encountered
“/“
in
the
text
of
the
federal
amendments,
we
used
“or”
in
Section
739.151(a).
Aside
from
the
above
non—substantive
revisions,
we
have
restored
segments
of
text
that
appeared
in
the
proposal
for
public
comment
in
R93-4
that
we
erroneously
dropped
from
the
adopted
rule.
The
segments
of
text
restored
all
pertain
to
the
need
to
obtain
and
the
mechanics
of
obtaining
a
U.S.
EPA
identification
number.
The
need
to
obtain
such
a
number
from
U.S.
EPA
derives
directly
from
Section
3010
of
RCRA.
(42
U.S.C.
§
6930.)
The
restored
segments
of
text
are
at
Sections
739.124,
739.142,
739.143,
739.146,
739.151,
739.156
through
739.158,
739.162,
739.165,
739.171,
739.173,
739.174.
In
the
course
of
adapting
the
federal
rules
to
the
Illinois
system
in
R93—4,
the
Board
considered
comments
as
to
whether
we
should
subject
used
oil
transporters
to
the
Illinois
special
waste
transportation
provisions.
We
concluded
that
we
should
and
added
the
appropriate
references
to
Illinois
special
waste
identification
numbers.
In
adding
these
references,
we
deleted
nearly
every
reference
to
U.S.
EPA
identification
numbers
obtained
through
RCRA
Section
3010
notification
without
discussion
of
the
deletion.
As
with
all
other
aspects
of
state-
administered
RCRA
Subtitle
C
regulation,
U.S.
EPA
notification
pursuant
to
Section
3010
is
a
necessary
prerequisite
to
Subtitle
C
activities.
Therefore,
the
Board
believes
that
Section
3010
notification
is
required
whenever
U.S.
EPA
requires
it,
without
regard
to
any
ancillary
state
notifications.
We
now
correct
this
error
in
assembling
the
text
of
the
adopted
rules.
In
adding
references
to
the
Illinois
special
waste
regulations,
the
Board
categorically
referred
to
the
“Illinois
special
waste
identification
number”.
We
intend
to
retain
this
usage,
but
we
wish
to
explain
its
intended
meaning
more
fully
at
this
time.
The
Illinois
EPA
is
authorized
to
grant
permits
to
special
waste
haulers
and
T/S/D
facilities.
(Sections
21(d),
22.2(1),
22.10
&
22.11
of
the
Act;
~
35
Ill.
Adm.
Code
807.
Subpart
B,
809.Subpart
B
&
812.101.)
The
Board
is
aware
that
the
Agency
and
regulated
community
refer
to
the
identification
numbers
issued
to
transporters
as
special
waste
hauler
identification
or
license
numbers.
Those
issued
to
T/S/D
facilities
are
called
“IEPA
facility
identifcation
numbers”,
and
those
issued
to
generators
are
called
“IEPA
generator
17
identification
numbers”.
In
using
“Illinois
special
waste
identification
number”,
the
Board
intends
each
of
these
meanings,
as
appropriate
in
the
context.
In correcting the federal notification requirments, we have
made
additional
corrections
to
the
Illinois
special
waste
notification requirements.
While it is correct that special
waste haulers must notify the Agency pursuant to Part 809, this
is
not
true
of
processors
or
re—refiners.
We
have
replaced
the
reference
“pursuant
to
35
Ill.
Adm.
Code
809”
with
the
address
and
telephone
number
of
the
Agency,
Division
of
Land
Pollution
Control
at
Section
739.151(b)(2).
Similarly,
even
where
there
was
no
such
reference
with
regard
to
used
oil
burners
and
used
oil
fuel
marketers,
the
Board
has
added
the
Agency
address
at
Sections 739.162(c)
and 739.173(c).
The Board invites public
comments on our approach to the used and waste oil regulations,
especially with regard to the restoration of the U.S. EPA
notification requirments, our handling of the Illinois special
waste identification numbers, and our references to Agency
special waste notification.
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:
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
738
Hazardous
Waste
Injection
Restrictions
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
18
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.
USEPA 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.
USEPA granted final
authorizatior of the Illinois RCRA Subtitle C “base program” on
January 31,
1986,
at 51 Fed. Reg. 3778
(January 30,
1986).
USEPA
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).
USEPA
authorize4 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).
USEPA 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 Nay
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 Nay 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,
1986; 10 I~11. 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 Ill. Reg.
13998,
19
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, Nay 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,
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,
20
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)
R9l—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
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
September 23,
1993;
17
Ill. Reg.
20545, effective
November 22,
1993.
(Used Oil Rules)
(7/1/92
through 12/31/92)
R93-16
This docket.
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 inclu~edadoption of
USEPA’s dioxin listings.
Section 22.4(d) was repealed by P.A.
85—1048,
effective January
1,
1989.
The Board has adopted USEPA delistings at the request of
Amoco and Envirite (the date of the corresponding federal action
is included in parentheses):
21
R85—2
69 PCB 314, April 24,
1986;
10 Ill.
Reg.
8112, May
16,
1986,
effective May 2,
1986.
(9/13/85)
R87—30
90 PCB 665, June 30,
1988;
12 Ill.
Reg.
12070,
July 22,
1988,
effective July 12, 1988.
(11/14/86)
R91—12
128 PCB 369, December 19,
1991;
16 Ill. Reg. 2155,
effective January 27,
1992.
(USX)
Subsequently, upon the April 30, 1990 federal authorization
of Illinois granting waste delistings, USEPA 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—l7
119 PCB 181, February 28,
1991;
15 Ill. Reg. 7934,
effective Nay 9,
1991.
Waste generators have filed Part 106 adjusted standards
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.)
The Board has granted hazardous waste delistings by way of
adjusted standards
(generator name in parentheses):
AS91-1
130 PCB 113, February
6,
1992.
(Keystone Steel
and Wire Co.)
AS91—3
February 4,
1993; opinion issued March
11, 1993.
(Peoria Disposal Co.)
22
Another hazardous waste delisting proceeding is presently
pending
(generator name in parentheses):
AS93—7
(keystone Steel
& Wire)
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):
AS9O-6
Dismissed at 136 PCB 93, September 17, 1992.
(Marathon
Petroleum
Co.)
Other
adjusted
standard
proceedings
sought
delayed
closure
of land disposal units
(petitioners’ names in parentheses):
AS9O—8
130 PCB 349, February 27,
1992.
(Olin Corp.)
AS91—4
131 PCB 43, March 11,
1992.
(Amoco Oil Co.)
Still another adjusted standard proceeding relates to
substantive physical requirements of the RCRA Subtitle C
regulations:
AS91-10
Presently pending.
(Cabot Corp.)
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
(Petitioner’s name in parentheses):
R91-11
Dismissed, August 8,
1991.
(Big River Zinc Corp.)
The Board has also adopted r~quirementslimiting 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.
23
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).)
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.
USEPA authorized the Illinois UIC program on
February 1,
1984, at 49 Fed. Reg.
3991.
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
USEPA 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)
24
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)
R90—5
Dismissed at 109 PCB 627, March 22, 1990.
(No
USEPA 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
Disi~tissedat 119 PCB 219, February 28,
1991.
(No
USEPA amendments 9/1/90 through 12/31/90)
R91—16
Dismissed at 128 PCB 229, December 6,
1991.
(No
USEPA amendments 1/1/90 through 6/30/91)
R92—4
Dismissed at 133 PCB 107, April 9, 1992.
(No
USEPA amendments 7/1/91 through 12/31/91)
R92—13
February 4,
1993;
17 Ill.
Reg. 6190, effective
April 5,
1993.
(1/1/92 through 6/30/92)
R93—6
August
5,
1993;
17 Ill. Reg. 15641, effective
September 14,
1993.
(7/1/92 through 12/31/92)
In one proceeding filed,
a petitioner seeks 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):
R92-8
Presently pending.
(Cabot Corp.)
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
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
25
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 “inay”
—
“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”.
“Either”..
.
“or” denotes “one but not
both”.
“And”
denotes “both”.
26
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify~~1atthe above opinion and order was
adopted on the
/
day of _________________________
1993,
by a vote of
______________
Clerk
Dor
Illinois Pol1~tionControl Board
