ILLINOIS POLLUTION CONTROL BOARD
May 23,
1991
IN THE MATTER OF:
)
R90—l4
UIC UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(1—1—90 THROUGH 8—31—90)
)
FINAL ORDER.
ADOPTED RULE.
OPINION OF THE BOARD
(by J. Anderson):
By a separate Order, pursuant to Sections 22.4(a) and 13.(c)
of the Environmental Protection Act
(Act), the Board effects
amendments to the Underground Injection Control
(UIC)
regulations.
Section 22.4 of the Act governs adoption of
regulations establishing the RCRA program in Illinois, and
Section 13(c) governs adoption of the UIC program regulations.
Both Sections 22.4(a)
and 13(c) provide for quick adoption of
regulations which are “identical
in substance” to federal
regulations.
Because this rulemaking
is not subject to Section 5
of the Administrative Procedure Act,
it
is not subject to first
notice or to second notice review by the Joint Committee on
Administrative Rules
(JCAR).
The federal UIC regulations are found at 40 CFR 144,
146,
and 148.
This rulemaking updates UIC rules to correspond with
federal amendments during the period January
1 through August 31,
1990.
The Federal Registers utilized are as follows:
55 Fed.
Reg. 22520
June 1,
1990
55 Fed. Reg.
33693
August 17,
1990 (Corrections)
56 Fed. Reg. 3864
January 31,
1991 (Corrections)
The Board divides state UIC and RCRA program updates into
their traditional parts, UIC in 35
Ill. Adm. Code 704,
730, and
738 and RCR~in 35 Ill.
Adm. Code 703,
705,
720 through 726, and
728, with minimal overlap.
The present UIC amendments are
limited to 35
Ill. Adm. Code 738.Subpart B.
PUBLIC COMMENTS
The public comment period began upon publication of the
Notice of Proposed Amendments in the Illinois Register,
at
14
Ill. Reg.
18681,
on November 26,
1990, and continued for 45 days
from that date, until January 10,
1991.
The Board subsequently
delayed further action on this rulemaking because ceratin of the
amendments depended on the contemporaneous or prior effectiveness
of the amendments involved in R90-ll.
The Board invited public
comment on this rulemaking during the public comment period and
received three public comments and a list of Preliminary General
Problems and Questions from the Joint Committee on Administrative
Rules.
The Board highlighted for comment several specific issues
relating to this rulemaking in the detailed discussion that
122—309
2
follows.
Public Comment number
1
(PC #1), received December 14,
1990,
is from the Department of Commerce and Community Affairs.
It is
DCCA’s Impact Analysis.
That analysis concludes that the adopted
amendments will have no impact on small businesses,
they will not
impose new or change existing reporting requirements, and they
will not require completion of any forms for submittal to the
Agency.
Public Comment number
2
(PC #2), received January 9,
1991,
is from the Secretary of State, Administrative Code Division.
The Code Division found that the amendments met the codification
requirements.
The Agency submitted Public Comment number
3
(PC #3),
received January 11,
1991.
The Agency made substantive comments
on the proposed amendments.
The Board will discuss the Agency
comments in the appropriate places
in the following discussion.
The Board received the Joint Committee’s comments on
December
13,
1990.
The JCAR comments are substantive, so the
Board will consider them in the following discussion.
As noted in the detailed discussion,
the Board
is not
entirely clear on some of the public comments submitted.
As
noted in the following paragraph,
the Board will delay filing the
adopted rules with the Secretary of State for 30 days.
Commenters may use this delay to submit further clarification if
the Board has misapprehended their comments.
DELAYED FILING OF ADOPTED AMENDMENTS
After final adoption, the Board will delay filing the
adopted amendments for
30 days from the date of the Final Opinion
and accompanying Order.
This delay is particularly to allow
USEPA, the Agency, and the Attorney General to review the
amendments in final form before they are filed.
This delay is in
accordance with the informally agreed procedures for identical in
substance rulemakings embodied in “RCRA Pass-Through Rulemaking!-
Authorization Revision and Review Process,” the title of the
agreement between the above entities and the Board, as amended
May,
1987.
HISTORY OF RCRA, UST and UIC ADOPTION
The Illinois UIC (Underground Injection Control), RCRA
(Resource Conservation and Recovery Act),
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:
122—310
3
702
RCRA and UIC Permit Programs
703.
RCRA. 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 cases are included in Parts 102,
103,
104 and 106 of the Board’s procedural rules.
History of RCRA and State Hazardous Waste Rules Adoption
The Board has adopted and amended the Resource Conservation
and Recovery Act
(RCRA)
hazardous waste rules in several dockets.
Dockets R81-22 and R82-18 dockets dealt with the Phase
I RCRA
regulations.
USEPA granted Illinois Phase
I authorization on May
17,
1982, at 47 Fed. Reg.
21043.
The Board adopted RCRA Phase II
regulations in Parts 703 and 724 in dockets R82—19 and R83-24.
USEPA granted final authorization of the Illinois RCRA “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 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).
The
entire listing of all RCRA identical in substance ruleinakings
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)
122—3
11
4
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 Ill. Reg.
968, January 17,
1986,
effective January 2,
1986.
(4/25/84 through
6/30/85)
R86—l
71 PCB 110, July 11,
1986;
10 Ill. 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)
12 2—3 12
5
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—10
114 PCB 927, August 30,
1990;
14
Ill.
Reg.
16450,
October
5,
1990,
effective September 25,
1990.
(Toxicity Characteristic Leachate Procedure)
R90—11
April
11,
1991; filing pending.
(4/1/90 through
6/30/90)
R91-1
Proposal for Public Comment, March 28,
1991;
15
Ill.
Reg.
5980, April 26,
1991.
(7/1/90 through
12/31/90)
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 feaeral 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
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):
R85—2
69 PCB 314, April 24,
1986;
10 Ill. Reg.
8112, Nay
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)
12 2—3 13
6
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
(USX Corp,
South Works)
R90-19
Dismissed November 8,
1990.
(Woodward Governor
Co.)
R90-23
(Keystone Steel
& Wire Co.)
The Board has proposed amendments to the delisting
procedures that would set forth the procedural requirements for
waste delistings and allow use of the adjusted standard
procedures of Part 106 for evaluating the petitions:
R90-17
February 28,
1991; filing pending.
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
Presently pending.
(Quantum Chemical Co.)
AS91—1
Presently pending.
(Keystone Steel
& Wire Co.)
AS91-3
Presently pending.
(Peoria Disposal Co.)
Another Part 106 adjusted standard proceeding filed pursuant
to 728.106 seeks relief from a prohibition against land disposal
(petitioner’s name in parentheses):
AS9O-6
Presently pending.
(Marathon Petroleum Co.)
Still other adjusted standard proceedings seek delayed
closure of land disposal units
(petitioners’ names
in
parentheses):
AS9O-8
Presently pending.
(Olin Corp.)
AS91-4
Presently pending.
(Amoco Oil Co.)
122—3 14
7
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
Presently pending.
(Big River Zinc Corp.)
The Board has adopted special procedures in Parts 101,
102,
and 104 for cases involving the RCRA regulations:
R84—10
62 PCB 87
&
349, December 20,
1984
& January 10,
1985;
9
Ill. Reg.
1383, February 1,
1985,
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.
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).)
A decision on permanent rules is pending.
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
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)
122—3 15
8
R82—l8
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
tJSEPA 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)
R90—5
Dismissed at 109 PCB 627, March 22,
1990.
(No
USEPA amendments 12/1/89 through 12/31/89)
R90-l4
This Docket; Proposal for Public Comment November
8,
1990;
14 Ill.
Reg.
18681, November 26,
1990.
(1/1/90 through 8/31/90)
R9l-4
Dismissed on February 28,
1991.
(No USEPA
amendments 9/1/90 through 12/31/90)
History of UST Rules Adoption
The Board adopted Underground Storage Tank
(UST)
rules
in
R86-1 and R86-28, which were also RCRA update Dockets.
The Board
updated the UST regulations to correspond with USEPA amendments
in several dockets.
USEPA has not yet authorized the Illinois
122—3 16
9
UST program.
The entire listing of all UST rulemakings follows
(with the period o~corresponding federal revisions indicated in
parentheses):
R86—1
71 PCB 110, July ii;
1986;
10 Ill.
Reg.
13998,
August 22,
1986, effective August 12,
1986.
(7/1/85 through 1/31/86)
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)
R88—27
98 PCB 413, April 27,
1989;
13
Ill. Reg.
9519,
June 23,
1989,
effective June 12,
1989.
(9/23/88)
R89—4
101 PCB 371, July 27,
1989;
13
Ill. Reg.
15010,
September 22,
1989,
effective September 12, 1989.
(10/26/88)
R89—1O
109 PCB 229, March
1,
1990;
14 Ill. Reg.
153,
January
5,
1990,
effective April
10,
1990.
(10/27/88 through 6/30/89)
R89—19
110 PCB 465, April 26,
1990;
14
Ill.
Reg.
9454,
June 15,
1990,
effective June 4,
1990.
(UST Fund
Legislative Mandate)
R90—3
112 PCB 321, June 7,
1990;
14 Ill. Reg.
11964,
July 20,
1990, effective July 10,
1990.
(7/1/89
through 12/31/90)
R90—12
February 28,
1991;
15
Ill. Reg.
6527, May 3,
1991,
effective
April 22,
1991.
(1/1/90 through
6/30/90)
R91-2
Proposal for Public Comment, February 28,
1991;
15
Ill.
Reg.
6424,
May 3,
1991.
(7/1/90 through
12/31/90)
GENERAL
DISCUSSION
The amendments are discussed in detail below.
The following
generally describes the USEPA actions encompassed by this
rulemaking.
The complete.Federal Register Citations are given
above.
All dates are 1990.
June ~
Additional restrictions on underground injection
of First,
Second and Third Third Wastes.
122—3
17
10
August 17 Corrections to June
1 restrictions on Third Third
Wastes.
One June
1,
1990, USEPA promulgated the restrictions on land
disposal of Third Third Scheduled Wastes.
That rulemaking
included restrictions under both the RCRA and UIC programs.
On
January
31,
1991, USEPA published a series of corrections to the
Third Third prohibitions.
The present Board rulemaking deals
only with those portions of the federal proceedings that impact
the Illinois UIC program.
Docket R90-11 will deal with those
portions impacting the Illinois RCRA program.
The federal rulemaking primarily completes the list of Third
Third Wastes prohibited from underground injection (40 CFR
148.16, corresponding to 35 Ill. Adm.
Code 738.116).
It also
adds First Third Wastes
(40 CFR 148.14, corresponding to 35
Ill.
Adm. Code 738.114) and Second Third Wastes
(40 CFR 148.15,
corresponding to 35
Ill. Mm.
Code 738.115)
and add an exception
from the general prohibition against underground injection for
certain characteristic wastes
(40 CFR 148.1,
corresponding to 35
Ill.
Adin. Code 738.101).
The present rulemaking adopts those
recent federal amendments.
Deletion of Federal Effective Dates and Restructuring of Rules
Several of the new federal prohibitions on land disposal,
like those upon which the Board has already passed in R89-2 and
R89—11,
include delayed effective dates that have already lapsed.
The Board has deleted those past effective dates from the present
amendments,
as it has
in the prior dockets, while retaining those
not yet past.
Additionally,
in furthering this practice, the
Board deleted the past effective dates already adopted in the
prior proceedings.
In so doing,
the Board observed that
retention of a regulatory structure completely parallel to that
of the federal rules rendered Sections 738.114 through 738.116
somewhat convoluted and potentially confusing.
The Board
departed from the entirely parallel structure for the sake of
greater clarity in its rules.
Further, the Board amended the
existing rules accordingly.
The federal rules are structured according to effective date
within the First Third, Second Third, and Third Third categories.
Within the several effective date groups are sub-listings of
wastes from Sections 261.31,
261.32,
and 261.33
(corresponding to
35 Ill.
Adm. Code 721.131, 721.132, and 721.133,
respectively).
The Board prefers to list the prohibited wastes in groups
corresponding to the sections in which the wastes are listed,
retaining the First Third,
Second Third,
and Third Third
categories.
The Board feels this structure enhances the clarity
of the prohibitions for those wastes to which a past effective
date applies.
This structure is not employed for those federal
122—318
11
paragraphs to which a future effective date applies.
Those
latter paragraphs appear as distinct subsections in the Board’s
adopted amendments.
The following table indicates the federal delayed effective
dates for the affected paragraphs of the federal rules and the
l?cation of those prohibitions in the Board’~adopted amendments
(
denotes newly adopted federal paragraph,
denotes renumbered
federal paragraph,
and
*
denotes past effective date by the
earliest possible time of adoption of these amendments):
Federal
Paragraph
Effective
Date
Found in
Board Sections
148.10(c)
148.10(d)
148.14 (a)
148.14 (b)
148.14(c)
148.14 (d) 1
148.14 (e) 2
148.14(f)1
148.14(g) 2
148.14(h) 2
148.14 (i)1
148.14(j) i,2
*
August
8,
1990
*
November 8,
1990
*June 7,
1989
*June
8,
1989
*July 8,
1989
*August
8,
1990
*August 8,
1990
*November 8,
1990
June 7,
1991
June 8,
1991
May 8,
1992
No Date Recited
Does not appear
Does not appear
738.114 (a) (1),
(a) (2)
&
(a) (3)
738.114(a)(.2)
&
(a)(3)
738.114(a) (1)
738.114(a)(1),
(a)(2)
&
(a)(3)
738.114 (a) (2)
738.l14(a)(1),
(a)(2)
&
(a)(3)
738.114 (b)
738.114(c) (1)
&
(C)
(2)
738.114(d)
738.114(e)
148.15(a)
148.15(b)
148.15(c)
148.15(d) 1
148. 15(e) 2
148. 15(fl’
148.15(g) L,2
*June
7,
1989
*June
8,
1989
*July
8,
1989
*August
8,
1990
June 8,
1991
*November 8,
1990
No
Date
Recited
738.115(a) (2)
738.115(a)(1),
(a)(2)
&
(a)(3)
738.115(b)
738.115(a) (2)
&
(a)(3)
738.115(c)
738.115 (a) (2)
&
(a) (3)
738.115(d)
148.16 (a)
148. 16 (b)
148.16(c)1
738.16(d) 1
148.16(e)1
148.16(f~1
148.16(g)
,2
*June
7,
1989
*June
8,
1989
*July
8,
1989
*August
8,
1990
*November 8,
1990
May 8,
1992
No Date Recited
738.116 (a) (2)
738.116(a) (2)
&
(a) (3)
738.116(a) (1),
(a) (2),
(a) (3)
&
(a) (4)
738.116(b)
738.116(a)(1),
(a)(2),
(a)(3)
&
(a) (4)
738.116(c)
738.116(d)
Under this scheme of consolidating several waste listings, future
effective dates appear as separate subsections, and the wastes
with past effective dates that are listed in a single section of
Part 721.Subpart D appear
in aiphanumerical order in a single
subsection within the applicable Section of Part 738.
For
122—319
12
example,
all past-effective First Third wastes listed in Section.
721.131 appear
in Section 738.114(a) (1), all similar Section
721.132 wastes appear in Section 738.114(a) (2), all past—
effective Second Third Section 721.133-listed wastes appear in
Section 738.115(a) (3), etc.
The Agency’s comments
(PC #3)
are primarily directed towards
the consolidation of the waste listings.
The Agency comments
that the structure of Subpart B does not match that of
40 CFR
184, Subpart B.
The Agency states that it is difficult to
determine what waste numbers have been added or deleted.
The
Agency concedes that proposed 35 Ill.
Adm. Code 738.Subpart B is
identical in substance to 40 CFR 148, Subpart B, but the Agency
would retain the federal structure and recitation of past—
effective dates.
The Agency states that it was unable to verify
the proposed amendments to 35
Ill. Mm. Code 738.110 as deriving
from the June
1 or August
17, 1990 Federal Registers.
It
questioned the listing of hazardous waste number F025 at
proposed 35 Ill.
Adin.
Code 738.116(a) (1).
The Agency further
commented that it was unable to locate all the effective dates to
the Third Third prohibited wastes.
Initially, the Board appreciates the Agency’s comments, and
the Board can understand that the revised structure can render a
parallel reading of the respective state and federal prohibitions
more difficult.
However, the Board believes that this is an
insufficient reason to retain the past—effective dates and
somewhat convoluted structure their removal would bring about.
Further, the Board amply discussed the nature of each proposed
amendment in its Proposed Order of November 8,
1990.
The object
is to render the rules more useful to the. regulated community,
not more readily compared to the federal rules.
As to the past
federal effective dates, the regulated community can refer to the
federal rules for those.
The prohibitions do not become
effective under Illinois law until after they are filed with the
Secretary of State.
Therefore, the past effective dates are
irrelevant under Illinois law, and they can only serve to render
the state regulations less readily understandable and more
confusing to the regulated community.
The Board will proceed to
adopt the more streamlined structure without the past dates.
The detailed,
Section-by-Section discussion that follows
highlights the wastes added by the federal rulemaking in greater
detail.
It repeats the essence of the discussion contained in
the Proposed Opinion of November 8,
1990.
It further repeats the
questions raised in that Opinion relating to the consolidation of
waste listings.
This will clearly guide the reader as to the
source of each amendment and the nature of each revision to the
federal structure.
The Board hopes that reading this discussion
will more fully address some of the Agency’s general concerns.
The discussion explicitly addresses the Agency’s comments with
regard to proposed 35 Ill.
Adm. Code 738.110 and 738.116(a) (1).
122—320
13
It also directly addresses JCAR’s comments on 35 Ill.
Adm. Code
738.114(a) (2)
and 738.116(a) (1)1.
DETAILED DISCUSSION
SUBPART A:
GENERAL
Section 738.101
Purpose Scope and Applicability
This Section derives from 40 CFR 148.1.
USEPA amended
section 148.1 by adding paragraph
(d)
at 55 Fed.
Reg.
22683, June
1,
1990.
The new provision allows the continued underground
injection of wastes not otherwise prohibited under part 148 that
are hazardous only because they exhibit a characteristic of
hazardous waste listed in subpart C of part 261.
This provision
includes the requirements that injection occur at a Class
I well,
identified at 40 CFR 144.6(a),
and the waste must not exhibit any
prohibited characteristic of hazardous waste identified in part
261, subpart C at the point of injection.
The Board adopts the federal language with only the minimal
revision necessary to incorporate this provision into the state
rules.
The state counterpart to 40 CFR 144.6(a)
is
35 Ill.
Adm.
Code 730.106(a),
and the counterpart to 40 CFR 261,
subpart C is
35 Ill. Adm. Code 721.Subpart
C.
The Board substitutes these
references.
The Board also updates the Board Note to this
Section to the July
1,
1990 edition of the Code of Federal
Regulations.
SUBPART B:
PROHIBITIONS ON INJECTION
Section 738.110
Waste Specific Prohibitions
—
Solvent Wastes
This Section derives from 40 CFR 148.10.
USEPA amended this
provision during the present update period by its corrections of
January 31,
1991 to the June
1,
1990
promulgation of the Third
Third waste restrictions.
Further, the Board amends this Section
to eliminate the past effective date of subsection
(b).
In the discussion of its January 31,
1991 corrections to
Section 148.10, at 56 Fed. Reg.
3864, USEPA explained that it had
established treatment standards for four newly—listed F002 and
F005 spent solvent constituents.
USEPA set forth the four
1
The Board
notes
that the Agency
directed
its
comments
towards
Section
738.116(b) (1),
and
JCAR directed
its
comments
towards Sections
738.114(b) (2)
and
738.116(b) (1).
However, the
subject matter referred to by both as
Section 738.116(b) (1)
has
been redesignated as Section 738.116(a) (1), and the subject matter
of Section 738.114(a) (2) has been moved to Section 738.114(a) (3).
122—32 1
14
newly—listed constituents at 55 Fed. Reg. 22690,
22694—95
& 22701
for FOOl through F005 spent solvents
(the subject of companion
proceeding R90-11).
The discussion states that the correction
adds effective dates not included in the original promulgation.
The given correction renumbers paragraph
(C)
as
(e) and adds
paragraphs
(c) and (d).
New paragraph
(c) prohibits the
injection of spent F002 and F002 solvent wastes containing the
newly-listed constituents at off-site facilities effective August
8,
1990.
New paragraph
(e) prohibits the injection of those
wastes at on-site facilities effective November 8,
1990.
The Board feels no need to amend Section 738.110 in response
to the federal corrections.
First, since both federal paragraphs
(C)
and
(d) contain past effective dates, the Board would delete
the dates for reasons enunciated elsewhere
in this Opinion.
Second, the parity of on—site and off-site restrictions results
in a single restriction against injection of F002 and F005 wastes
containing the newly-listed constituents at all facilities,
as
also discussed elsewhere.
Finally, as discussed below, the Board
is amending this Section so that subsection
(a) would prohibit
all FOOl through FOOS wastes.
This would render redundant the
added restriction against injection of certain F002 and F005
wastes.
As the following discussion shows, the Board is
attempting in this proceeding to eliminate such redundancies in
its UIC rules.
The Board believes that Sections 738.110(a) (2)
and- (b) and a
portion of Section 738.110(a) (1)
are now redundant,
so the Board
deletes those provisions.
As originally adopted, Section
738.110(a) (1) prohibited the underground injection of spent
solvent wastes unless the wastes contained less than one percent
of certain waste constituents listed in subsection
(a) (2).
Subsection
(b) prohibits the injection of those spent solvent
wastes containing less than one percent of these constituents
effective August
8,
1990.
Effectively, subsections
(a) (1)
and
(b) now prohibit the injection of all Section 721.131 FOOl,
F002,
F003, F004,
and F005 spent solvent wastes, regardless of the
concentrations of subsection
(a) (2)
constituents,
as of August 8,
1990.
The Board believes that Section 738.110 should read
simply, paraphrased as follows:
underground injection of FOOl
through F005 spent solvent wastes is prohibited.
Therefore,
retaining the present structure is less straightforward than
eliminating the caveat of subsection
(a) (1) and subsections
(a) (2)
and
(b).
The Board further renumbers former subsection
Cc)
to subsection
(b)
and updating the Board Note to refer to the
1990 edition of the Code of Federal Regulations.
The Board believes that the foregoing adequately addresses
the Agency’s stated concerns over this Section.
It indicates the
source of the only federal amendment occurring during the update
period.
It further clearly indicates the source of and reasons
for each amendment made by the Board.
122—322
15
Section 738.112
Waste Specific Prohibitions
-
California List
Wastes
This Section derives from 40 CFR 148.12.
USEPA did not
amend this provision during the present update period.
Rather,
the Board amendments eliminate the past effective date of Section
(b).
This necessitates no .further revision to the text of this
Section, besides updating the Board Note to refer to the 1990
edition of the Code of Federal Regulations.
Section 738.114
Waste Specific Prohibitions
—
First Third
Wastes
This Section derives from 40 CFR 148.14.
USEPA amended
section 148.14 by adding paragraphs
(d),
(f), and
(i); amending
paragraph
(j);
and renumbering paragraphs
(d),
(e),
(f), and
(g)
to
(e),
(g),
(h), and
(j)
at 55 Fed.
Reg.
22683,
June
1,
1990.
The new provision,
paragraph (d), adds a prohibition against
underground injection at off—site facilities of several wastes,
effective August
8,
1990.
New paragraph
(f) prohibits the
injection of those same wastes at on—site facilities,
effective
November 8,
1990.
Added paragraph
(1)
includes prohibitions
effective Nay 8,1992.
The amendment to renumbered paragraph
(j)
broaden the inapplicability of this section to include paragraphs
(a) through
(i).
The Board amendments are identical to the federal revisions,
with structural changes focused on the deletion of past effective
dates and consolidating waste listings for ease of use by the
regulated community.
Prior to this rulemaking, Board subsection
(d)
(USEPA renumbered corresponding 40 CFR 148.14(d) to paragraph
(e)
in the present federal amendments)
had an effective date of
August.8,
1990.
Similarly,
new federal paragraph
(f) has an
effective date of November
8,
1990.
The Board eliminates both
past dates.
On the other hand,
prior Board subsections
(e) and
(f)
(whose counterparts USEPA renumbered to paragraphs
(g) and
(h)
in the present federal amendments and which now correspond to
subsections
(b) and
(c)
in the Board amendments)
still have
future effective dates.
Similarly,
new federal paragraph
(i)
(corresponding to subsection
(d)
in the Board’s rules)
has a
future effective date.
The Board retains these as yet future
effective dates.
Elimination of the immaterial past effective dates leaves
the regulatory structure somewhat convoluted and potentially
confusing to the regulated community.
Underground injection of
some 261.31—listed wastes is presently prohibited by 40 CFR
148.14(a),
(c),
(d), and
(f); underground injection of some
261.32-listed wastes is presently prohibited by 40 CFR 148.14(a),
(b),
(d),
and
(f); and underground injection of some 261.33-
listed wastes is presently prohibited by 40 CFR 148.14(b),
(d),
122— 323
16
and (f).
Further,
one form or mode of disposal of a waste is
prohibited by one federal paragraph while either all other forms
or modes of disposal are prohibited by another.
For example,
section 148.14(a) prohibits injection of F006 nonwastewaters,
section 148.14(d) prohibits injection of F006 wastewaters at off-
site facilities, and 148.14(f) prohibits injection of F006
wastewaters at on—site facilities.
The Board would prefer a more
cohesive structure that includes a single prohibition for all
forms and modes of disposal of a waste in a single location.
(For this example the Board adopts a single prohibition for F006
wastewaters and non wastewaters at subsection
(a) (1), without
reference to whether it is disposed on—site or off—site.)
Further, the Board would prefer that a single subsection set
forth all the listed wastes from each of the Sections 721.131,
721.132, and 721.133 lists.
Therefore, the Board amendments
deviate structurally from the federal regulations.
Under the Board’s adopted amendments rules, subsection
(a) (1)
sets forth all the Section 721.131-listed prohibited
wastes, subsection
(a) (2)
sets forth all the Section 721.132-
listed prohibited wastes,
and subsection
(a) (3)
sets forth all
the Section 721.133-listed prohibited wastes with past effective
dates.
The Board eliminates distinctions as to on—site and off-
site disposal because both modes are presently prohibited under
the federal rules.
However,
the Board retains the separate
listings by effective date for those wastes prohibited at a
future time.
Therefore, subsection
(b)
(corresponding to federal
paragraph
(g))
includes a single Section 721.132-listed waste for
which a prohibition becomes effective on June 7,
1991; subsection
(c)
(corresponding to federal paragraph (f)) includes in two
subsections Section 721.131- and 721.132-listed wastes prohibited
effective June 8,
1991, and subsection
(d)
(corresponding to
federal paragraph
(i))
includes Section 721.132-listed wastes for
which prohibitions become effective on May 8,
1992.
Where one prohibition was for the wastewater form of a
waste,
and another prohibition related to the nonwastewater form
of the waste, the Board incorporates a single prohibition on the
wastewater and nonwastewater forms.
This
is true for F006,
1(015,
KO22,
and K061 wastes.
Similarly,
the prior rule prohibited
injection of certain 1(101 and K1O2 wastes:
“all wastewaters and
less than one percent total arsenic nonwastewaters.”
The federal
amendments,
at paragraph
(d) prohibit injection of the “high
arsenic nonwastewaters.”
The Board interprets this as requiring
a combined prohibition on all KlOl and
1(102 wastewaters and
nonwastewaters.
The Board has retained the “wastewaters and
nonwastewaters” language for clarity, although it is possible
that USEPA intended all forms of the individual listed wastes and
the Board could have also dropped the added language as
superfluous.
122—324
17
For K021,
KO36,
and K060 wastes,
40 CFR 148.14(a) prohibited
injection of “nonwastewaters generated by the process described
in the waste listing description and disposed after August 17,
1988,
and not those generated in the course of treating
wastewater forms of these wastes.”
New federal paragraph
(d)
includes prohibitions on 1(021 and 1(060 wastewaters, and existing
paragraph
(b)
includes a prohibition for 1(036 wastewaters.
As to
the existing past August 17,
1988 disposal effective date noted
in each of these prohibitions (the effective date of the federal
First Third rule), the Board believes that retention of this date
is no longer necessary:
it is unlikely that any quantities of
these wastes disposed prior to that date still reside in Illinois
so they could still be injected.
As to the limiting language,
“generated by the process described in the waste listing
description
.
.
.
,
and not those generated in the course of
treating wastewater forms of these wastes,” the Board believes
that this could potentially have the effect of excluding some
forms of hazardous wastes from the prohibitions,
such as wastes
generated in the course of treating wastes generated by the
described process or,
as explicitly stated,
those generated in
the course of treating wastewater forms of the wastes.
See
35
Ill. Adm. Code 721.103(c) (2); 55 Fed. Reg.
22537
(June
1,
1990).
For these reasons, the Board will eliminate the “August 17,
1988”
and retain the “generated by” language from these restrictions.
The situation is similar for K069 wastes.
Section
738.114 (a) (2) formerly prohibited “noncalcium sulfate 1(069
(nonwastewaters generated by the process described in the waste
listing description and disposed after August 17,
1988, and not
those generated in the course of treating wastewater forms of
these wastes).”
40 CFR 148.14(d) would now add calcium sulfate
nonwastewaters and all wastewaters.
The Board will combine all
three categories of
1(069 wastes into a single listing, retaining
the “generated by” language for noncalcium sulfate
nonwastewaters,
but deleting the August
17,
1988 date.
The Board
will insert semicolons between each type of 1(069 waste intended
to avoid confusion as to the effect of the final “and not”
clause, which applies only to the third type of waste.
Finally,
for
1(046 wastes, existing Section 738.114(a) (2)
prohibits the underground injection of 1(046 nonexplosive
nonwastewaters,
and 40 CFR 148.14(d) now prohibits 1(046 reactive
nonwastewaters and all wastewaters.
“Reactive”
is intended by
USEPA in the sense meant by Section 72.1.123,
see 55
Fed.
Reg.
22593
(June
1,
1990)
& 54 Fed.
Reg. 25419—20
(June 14,
1989),
which includes “explosive.”
See 35
Ill. Reg. 721.123.
Therefore,
the Board interprets the combination of “nonexplosive
nonwastewaters” and “reactive nonwastewaters” as including all
wastewater forms of the waste.
The Board will scribe this
listing as “wastewaters and nonwastewaters,” intending it to
include all wastewater and all nonwastewater forms of this waste.
122—325
18
The Board also makes a small number of editorial revisions
to the federal base text and the prior text of the rule.
The
Board adds the word “underground” before “injection” wherever it
appears, although USEPA omitted it from new 40 CFR 148.14(d).
New 40 CFR 148.14(i) refers to “the wastes specified in 40 CFR
261.32 and 261.33 as EPA Hazardous Waste Numbers 1(011
.
.
.
,
K013
.
.
.
,
and 1(014
.
.
..“
Only 40 CFR 261.32
(corresponding
with 35 Ill. Adm. Code 721.132) specifies those wastes.
The
Board therefore does not add a reference to Section 721.133
(corresponding with 40 CFR 261.33).
This restructuring raises issues for which the Board sought
public comment.
The Board requested comment as to each of the
revisions it has made in consolidating the waste listings and
incorporating the federal prohibitions.
In the November
8,
1990 Proposed Opinion, the Board noted
that it would render “The wastes” as plural at subsection
(b) (2).
The comment from the Joint Committee points out that at 35 Ill.
Adm. Code 738.114(b) (2)
the Board had left it in the singular
form.
However, the Board actually deleted former subsection
(b) (2)
in favor of incorporating the wastes
listed into the
newly-consolidated listing of subsection
(a) (3).
Newly-
designated subsection
(b)
(formerly subsection
(e)) does not
include a subsection
(b) (2).
The Board erred in discussing the
change to the plural form.
In addition to the changes in the format of the new
prohibitions identical in substance to those adopted June
1,
1990
by USEPA, making the editorial revisions of the federal text,
and
making the structural changes described above,
the Board further
updates the Board Note to refer to the 1990 Code of Federal
Regulations and makes one correction.
In R89—11,
at subsection
(e), the Board adopted a June
7,
1991 prohibition on “K016
(
at
concentrations greater than one percent)
.“
This should have
appeared as “less than one percent,” like
it appeared in 40 CFR
148.14(e)
(now paragraph
(g)).
The Board corrects this error.
The Board invited comment on the editorial revisions it proposed
to the federal language.
Section 738.115
Waste Specific Prohibitions
-
Second Third
Wastes
This Section derives from 40 CFR 148.15.
USEPA amended
section 148.15 by adding paragraphs
(d)
and
(f); amending
paragraph (g); and renumbering paragraphs
(d)
and
(e) to
(e)
and
(g) at 55 Fed.
Reg.
22683, June
1,
1990.
The new provision,
paragraph
(d), adds a prohibition against underground injection
at off—site facilities of several wastes,
effective August
8,
1990.
New paragraph
(f) prohibits the injection of those same
wastes at on-site facilities,
effective November 8,
1990.
The
122—326
19
amendment to renumbered paragraph
(g)
broaden the inapplicability
of this section to include paragraphs
(a) through
(f).
The Board amendments are identical to the federal revisions,
with structural changes focused on the deletion of past effective
dates and consolidating waste listings for ease of use by the
regulated community, very similar to the revisions to Section
738.114.
New federal paragraph
(f) has an effective date of
November 8,
1990.
The Board eliminates this past date.
On the
other hand, prior Board subsection
(d)
(whose counterpart USEPA
renumbered to paragraph
(e)
in the present federal amendments and
which now corresponds to subsection
(c)
in the Board amendments)
still has a future effective date.
The Board retains this as yet
future effective date.
As with Section 738.114, elimination of the immaterial past
effective dates,
in this and the R89-2 and R89-l1 proceedings,
leaves the regulatory structure somewhat convoluted and
potentially confusing to the regulated community.
Underground
injection of 261.31-listed wastes
is presently prohibited by 40
CFR 148.15(b); underground injection of some 261.32-listed wastes
is presently prohibited by 40 CFR 148.15(a),
(b),
(d), and
(f);
and underground injection of some 261.33—listed wastes is
presently prohibited by 40 CFR 148.15(b),
(d), and
(f).
Further,
one form or mode of disposal of a waste
is prohibited by one
federal paragraph while either all other forms or modes of
disposal are prohibited by another.
For example, section
148.15(b) prohibits injection of K029 nonwastewaters,
section
148.15(d) prohibits injection of K029 wastewaters at off-site
facilities, and 148.15(f) prohibits injection of K029 wastewaters
at on-site facilities.
As for Section 738.114, the Board would
prefer a more cohesive structure that includes a single
prohibition for all forms and modes of disposal of a waste in a
single location.
(For this example the Board adopts a single
prohibition for
1(029 wastewaters and non wastewaters at
subsection
(a) (2), without reference to whether it is disposed
on-site or off-site.)
Further, the Board would prefer that a
single subsection set forth all the listed wastes from each of
the Sections 721.131,
721.132, and 721.133 lists.
Therefore,
the
Board amendments deviate structurally from the federal
regulations.
Under the Board’s rules,
subsection
(a) (1)
sets forth all
the Section 721.131-listed prohibited wastes, subsection
(a) (2)
sets forth all the Section 721.132-listed prohibited wastes,
and
subsection
(a) (3)
sets forth all the Section 721.133—listed
prohibited wastes with past effective dates.
The Board
eliminates distinctions as to on-site and off-site disposal
because both modes are presently prohibited under the federal
rules.
However, the Board retains the separate listing by
effective date for those wastes prohibited at a future time.
Therefore, subsection
(C)
(corresponding to federal paragraph
122—~27
20
(e)) includes a single Section 721.132-listed waste for which a
prohibition becomes effective on June 8,
1991.
The Board also
retains a separate listing for the 721.131—listed wastes for
which there
is reference to a Part 728 treatment standard in
subsection
(b)
(formerly subsection
(c),
as it presently appears
at 40 CFR 148.15(c).
Where one prohibition was for the wastewater form of a
waste,
and another prohibition related to the nonwastewater form
of the waste, the Board incorporates a single prohibition on the
wastewater and nonwastewater forms.
This is true for 1(029, K095,
and 1(096 wastes.
The Board has retained the “wastewaters and
nonwastewaters”
language for clarity, although it is possible
that USEPA intended all forms of the individual listed wastes and
the Board could have also dropped the added language as
superfluous.
For K025 wastes,
40 CFR 148.15(a) prohibited injection of
“nonwastewaters generated by the process described in the waste
listing description and disposed after August 17,
1988,
and not
those generated in the course of treating wastewater forms of
these wastes.”
New federal paragraph
(d)
includes prohibitions
on
1(025 wastewaters.
As to the existing past August 17,
1988
disposal effective date noted in this prohibition
(the effective
date of the federal First Third rule), the Board believes that
retention of this date is no longer necessary:
it is unlikely
that any quantities of these wastes disposed prior to that date
still reside
in Illinois so they could still be injected.
As to
the limiting language,
“generated by the process described in the
waste listing description
.
.
.
,
and not those generated in the
course of treating wastewater forms of these wastes,” the Board
believes that this could potentially have the effect of excluding
some forms of hazardous wastes from the prohibitions, such as
wastes generated in the course of treating wastes generated by
the described process or,
as explicitly stated, those generated
in the course of treating wastewater forms of the wastes.
£~
35
Ill.
Adm. Code 721.103(c) (2); 55 Fed. Reg.
22537
(June
1,
1990).
For these reasons,
the Board will eliminate the “August 17,
1988”
and retain the “generated by” language from these restrictions.
This restructuring raised issues for which the Board sought
public comment.
The Board requested comment as to each of the
revisions it made in consolidating the waste listings and
incorporating the federal prohibitions.
In addition to the changes in the format of the new
prohibitions identical in substance to those adopted June
1,
1990
by USEPA and making the structural changes described above., the
Board further updates the Board Note to refer to the 1990 Code of
Federal Regulations.
122—328
21
Section 738.116
Waste Specific Prohibitions
-
Third Third
Wastes
This Section derives from 40 CFR 148.16.
USEPA amended
section 148.16 by adding paragraphs
(c),
(d),
(e), and
(f);
amending paragraph
(g); and renumbering paragraph
(c) to
(g) at
55 Fed.
Reg.
22683, June 1,
1990.
USEPA corrected paragraphs
(c)
and
(f)
at 55 Fed. Reg.
33694,
August 17,
1990,
and corrected
paragraph
(c)
at 56 Fed.
Reg.
3876, January 31,
1991.
The new
provision, paragraph
(c),
adds a prohibition against underground
injection at off-site facilities of several wastes, effective
August
8,
1990.
New paragraph
(e) prohibits the injection of
those same wastes at on—site facilities, effective November 8,
1990.
New paragraph
(d) prohibits the injection of certain mixed
radioactive and hazardous wastes,
effective August
8,
1990.
New
paragraph
(f) prohibits the injection of 40 CFR 261.22, 261.23,
or 261.24
(corresponding with 35
Ill. Adm. Code 721.122,
721.123,
and 721.124) characteristic wastes, effective May 8,
1992.
The
amendment to renumbered paragraph
(g) broaden the inapplicability
of this section toinclude paragraphs
(a) through
(f).
The Board amendments are identical to the federal revisions,
with structural changes focused on the deletion of past effective
dates and consolidating waste listings for ease of use by the
regulated community,
very similar to the revisions to Sections
738.114 and 738.115.
New federal paragraph
(d) has an effective
date of August
8,
1990.
New federal paragraph
(e) has an
effective date of November 8,
1990.
The Board eliminates these
past dates.
On the other hand,
new USEPA paragraph
(f)
corresponding to subsection
(C)
in the Board amendments)
still
has a future effective date.
The Board retains this as yet
future effective date.
Associated with the elimination of the past effective dates
is the elimination of the caveat at the end of new 40 CFR
148.16(e).
That paragraph,
reciting a prohibition effective
November
8,
1990,
clarifies that this provision does not effect
wastes prohibited under 40 CFR 148.12(b),
for which the effective
date is August 8,
1990.
Since both are past effective dates are
past,
the Board eliminates the caveat entirely.
However, the
Board retains a similar caveat in part.
New 40 CFR 148.16(f),
effective May 8,
1992,
states that its effective .date does not
apply to wastes prohibited by 40 CFR 148.12(b),
effective August
8,
1990.
The Board eliminates the August
8,
1990 date and
renders this caveat as subsection
(c) (3)
as follows:
3)
The effective date of subsections
(c) (1)
and
(c) (2)
do not apply to the wastes listed in
Section 148.112(b)
which are prohibited from
underground injection.
122—329
22
As with Sections 738.114 and 738.115, elimination of the
immaterial past effective dates,
in this and the R89—2 and R89—
11 proceedings,
leaves the regulatory structure somewhat
convoluted and potentially confusing to the regulated community.
Underground injection of 261.31-listed wastes is presently
prohibited by 40 CFR 148.16(c); underground injection of some
261.32—listed wastes is presently prohibited by 40 CFR 148.16(a),
(b),
(C),
and
(e); underground injection of some 261.33—listed
wastes is presently prohibited by 40 CFR 148.16(b),
(c), and
(e);
and underground injection of some 261.21- and 261.24-listed
wastes is presently prohibited by 40 CFR 148.16(c).
Further, one
form or mode of disposal of a waste
is prohibited by one federal
paragraph while either all other forms or modes
of disposal are
prohibited by another.
For example, section 148.16(b) prohibits
injection of 1(005 and
1(007 nonwastewaters,
section 148.16(c)
prohibits injection of 1(005 and K007 wastewaters at off-site
facilities,
and 148.16(e) prohibits injection of
1(005 and 1(007
wastewaters at on—site facilities.
As another example,
section
148.16(a) prohibits injection of certain K100 nonwastewaters, and
new section 148.16(c) simply prohibits injection of K100 wastes.
As for Sections 738.114 and 738.115, the Board would prefer a
more cohesive structure that includes a single prohibition for
all forms and modes of disposal of a waste in a single location.
(For these examples the Board adopts single prohibitions for K005
and
1(007 wastewaters and non wastewaters and 1(100 wastes at
subsection
(a) (2), without reference to whether it is disposed
on-site or off-site.)
Further, the Board would prefer that a
single subsection set forth all the listed wastes from each of
the Sections 721.131,
721.132,
and 721.133 lists.
Therefore, the
Board amendments deviate structurally from the federal
regulations.
Under the Board’s rules,
subsection
(a) (1)
sets forth all
the Section 721.131-listed prohibited wastes, subsection
(a) (2)
sets forth all the Section 721.132-listed prohibited wastes,
subsection
(a) (3) sets forth all the Section 721.133—listed
prohibited wastes, and subsection
(a) (4)
sets forth all the
Section 721.121 and 721.124 characteristic prohibited wastes with
past effective dates.
The Board eliminates distinctions as to
on—site and off-site disposal because both modes are presently
prohibited under the federal rules.
However, the Board retains
the separate listing by effective date for those wastes
prohibited at a future time.
Therefore, subsection
(c)
(corresponding to federal paragraph
(f)) includes the single
Section 721.122,
721.123, and 721.124 characteristic wastes for
which prohibitions become effective on May 8,
1992.
Where
one prohibition was for the wastewater form of a
waste, and another prohibition related to the nonwastewater form
of the waste,
the Board incorporates a single prohibition on the
wastewater and nonwastewater forms.
This is true for K005 and
K007 wastes.
The Board has retained the “wastewaters and
122—330
23
nonwastewaters”
language for clarity, although it is possible
that USEPA intended all forms of the individual listed wastes and
the Board could have also dropped the added language as
superfluous.
For 1(100 wastes,
40 CFR 148.16(a) prohibited injection of
“nonwastewaters generated by the process described in the waste
listing description and disposed after August 17,
1988,
and not
those generated in the course of treating wastewater forms of
these wastes.”
New federal paragraph
(c)
includes a prohibition
on K100.
The Board believes that USEPA now intends a total
prohibition on injection of this waste, so it incorporates a
blanket prohibition at subsection
(a) (2).
The Board needs not effect an amendment in response to the
USEPA correction of January 31,
1991.
USEPA stated that it had
inadvertently included waste codes U087 and U139 in the Third
Third promulgation.
USEPA listed U087
in the Second Third final
rule at 54 Fed.
Reg.
26647, June 23,
1989.
It dropped U139 from
the hazardous waste listings at 53 Fed. Reg.
43881, October 31,
1988.
Because USEPA lists U087 at 40 CFR 148.16(b) (2) and the
Board now consolidates all the waste listings with past effective
dates, and because the Board has not yet listed hazardous waste
number
tJ139, no amendment is necessary.
This restructuring raised issues for which the Board sought
public comment.
The Board requested comment as to each of the
revisions
it made in consolidating the waste listings and
incorporating the federal prohibitions.
JCAR and the Agency
(PC
#3) submitted comments on this matter.
The Agency questioned
listing hazardous waste number F025 together with F039 wastes at
subsection
(a) (1).
JCAR requested Board comment as to where F025
appears
in the Code of Federal Regulations or Federal Register.
The Board simultaneously addresses both concerns.
USEPA promulgated the Third Third waste restrictions on June
1,
1990.
In the discussion,
at 55 Fed. Reg.
22639 and 22647,
tJSEPA stated that it had revised the listing for FO25 wastes on
December 11,
1989,
at 54 Fed. Reg.
56988, effective June 11,
1990.
USEPA was imposing
a land disposal restriction for this
newly—listed waste based on incineration, effective August
8,
1990.
However, USEPA neglected to include the restriction in the
June
1,
1990 rulemaking.
Rather, USEPA published a correction on
August 17,
1990, at 55
Fed.
Reg.
33693., effective May 8,
1990,
that included, at 40 CFR 148.16(c), the F025 August
8,
1990 off—
site restriction as “newly listed waste F025,” inadvertently
omitted from the June
1 rules.
See 55 Fed. Reg.
33694.
Actually, the F025 listing was newly-incorporated in that
rulemaking, ~
R90—2,
113 PCB 131
(July
3,
1990);
14
Ill.
Reg.
14401
(Sept.
7,
1990), effective August 22,
1990.
Thus,
the
intent of USEPA was to include all F025 wastes in the Third Third
restrictions, and its status as “newly—listed” is irrelevant for
122—33 1
24
the Board’s purposes.
Further, the June 1,
1990 rules had
already prohibited on-site injection of all “paragraph
(c)”
wastes, effective November 8,
1990,
so after that date the
federal rules prohibited injection of
~jJ,
FO25 wastes.
In keeping with the Board’s inclination to delete all
superfluous dates and duplicative and confusing entries from the
UIC rules, there is no reason to keep the designation “newly
listed” or the past-effective dates.
In light of this and the
foregoing discussion,
the Board
cannot understand the Agency’s
observation as to F025 wastes.
As mentioned, the federal rules
now restrict injection of
~fl
F025 wastes.
The prohibition for
off—site became effective on August 8,
1990,
and the on-site
prohibition became effective on November 8,
1990.
There are
r~
other F025 wastes of which the Board
is aware,
and the Board
cannot find any significance to a August 8,
1993 date in the
federal rules.
See 55 Fed. Peg. 22683
(June
1,
1990);
55 Fed.
Reg.
33694
(Aug.
17,
1990); 56 Fed. Reg. 3876
(Jan.
31,
1991);
see also 55 Fed. Reg. 22716
& 22719
(June
1,
1990)
(40 CFR 261
App. VII
& VIII:
comprehensive listings of effective dates for
land disposal restrictions and national capacity LDR variances).
Therefore, the Board cannot provide the further clarification
requested by the Agency.
The Board also made a small number of editorial revisions to
the federal base text and the prior text of the rule.
At
subsection (a)(4), derived from part of 40 CFR 148.16(c), and
subsections
(c) (1)
and
(C)
(2), derived from new federal paragraph
(f), the Board renders the language as “wastes specified in
.“
for cohesiveness with the rest of the rules.
At
subsection
(b), derived from 40 CFR 148.16(d), the Board renders
“The waste~”now as plural.
New 40 CFR 148.14(f)
(rendered in
pertinent part by the Board as 35 Ill. Adm. Code 738.116(a) (4))
refers to “the wastes identified in 40 CFR 261.21,
261.23 or
261.24 as hazardous based on a characteristic alone, designated
as DOOl,
D004, D005,
D006,
D008,
D009
.
.
.,
DOlO, DOll,
D0l2,
D013, D0l4,
D0l5, D016,
DO17
.
.
..“
40 CFR 261.21
(corresponding to 35
Ill.
Adin. Code 721.121) designates EPA
Hazardous Waste Number DOOl.
40 CFR 261.24
(corresponding to 35
Ill.
Adm. Code 721.121) designates EPA Hazardous Waste Numbers
D004 through D017.
40 CFR 261.23
(corresponding to 35 Ill. Adm.
Code 721.123) designates EPA Hazardous Waste Number DOO3, which
is not listed in this paragraph.
The Board therefore does not
add a reference to Section 721.123
(corresponding with 40 CFR
261.23).
The Board invited comment on the editorial revisions it
made to the federal language.
In addition to the changes in the format of the new
prohibitions identical in substance to those adopted June
1,
1990
by USEPA, the editorial revisions outlined, and making the
structural changes described above,
the Board further updates the
Board Note to refer to the 1990 Code of Federal Regulations.
122—332
25
PART
728
LAND
DISPOSAL RESTRICTIONS
USEPA amended 40 CFR 268, corresponding to 35
Ill. Adm. Code
728,
at 55 Fed. Peg. 728, June
1,
1990, by adding a new Appendix
VIII.
That table is a comprehensive listing of the national
capacity land disposal restrictions variances granted by USEPA
for underground injection of certain wastes.
See 55 Fed.
Reg.
22645—49
(June
1,
1990).
This appendix,
in the form of a table,
lists the effective dates for the restrictions on underground
injection by Hazardous Waste Number.
This table merely restates
the effective dates for the various paragraphs of
40 CFR 148,
Subpart B (corresponding with 35
Ill. Adm. Code 738.Subpart B).
As noted at the end of the appendix,
“This table is provided for
the convenience of the reader.”
The appendix does not effect any
substantive requirement.
It also lists the numerous past
effective dates.
The Board did not adopt a counterpart to new 40 CFR 148,
Appendix VIII.
The appendix has no substantive or procedural
effect.
It merely restates in summary form the effective dates
of various of the land disposal restrictions on underground
injection.
Those dates not yet past appear in 35
Ill. Mm.
Code
728.Subpart B.
As observed in the preceding discussions, the
Board is in the habit of deleting past effective dates.
Board
adoption of this table would not add to the already voluminous
underground injection control and land disposal regulations in
any way.
The Board invited comment on its decision not to adopt a
counterpart to 40 CFR 268, Appendix VIII.
Specifically,
for
those commenters feeling that the Board should adopt such a
counterpart, should that appear in Part 728 or 738?
Should the
Board delete the past effective dates if
it did adopt a
counterpart?
IT IS SO ORDERED.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby certjfy that the above Opinion of the Board was
adopted on the
~
day of
7’~-~2
,
1991,
by a vote of
Control Board
122— 333
