ILLINOIS POLLUTION CONTROL BOARD

December 19,

1991

IN THE MATTER OF:

)

R91—18

REPEAL OF 35

 ILL. ADN. CODE

)

 (Rulemaking)

809.SUBPART I:

 HAZARDOUS

)

(INFECTIOUS) HOSPITAL WASTE

)

ADOPTED RULE.

 FINAL ORDER.

OPINION AND ORDER OF THE BOARD

 (by R.C.

 Flemal):

The Board opened

 this

 docket on our own Motion by an Opinion

and Order dated August 22,

 1991.

 Public Act 87-752

 (House Bill

2491),

 1991 Ill. Legis.

 Serv.

 3521—33

 (West),

 signed by the

Governor on September 26,

 1991,

 prompted that action.

 Effective

January

1,

 1991, P.A. 87-752 amends various provisions of the

Environmental Protection Act as they relate to potentially

infectious medical wastes.

 New Title XV:

 Potentially Infectious

Medical Waste includes several new legislative mandates for Board

rulemaking.

 One such mandate is new Section 56.2(d), which

requires that the Board repeal 35

 Ill.

 Adin.

 Code 809.Subpart

I:

Hazardous (Infectious) Hospital Waste by January

1,

 1992.

New Section 56.2(d),

 1991 Ill.

 Legis.

 Serv.

3531

 (West),

requires the Board to use the rulemaking procedures of Title VII

of the Act for this repeal--i.e., the Board must use the First

Notice-Second Notice-Adopted Rule sequence,

 including public

hearings.

 Because this mode of rulemaking would require over

three months to complete, the Board initiated this repeal process

before the Governor signed the bill into law.

The Notice of Proposed Repealer appeared in the Illinois

Register at volume

 15, page 13017,

 on September 6,

 1991.

 Public

hearings occurred September 18,

 1991,

 in Chicago,

 and September

19,

 1991,

 in DeKalb.

 Members of the public attended and

participated in the Chicago hearing.

 The public comment period

ended on October 21,

 1991.

 The Board proposed this matter for

Second Notice by its Opinion and Order of October 24,

 1991.

The

Joint Committee on Administrative Rules adopted its Certificate

of No Objection on December 13,

 1991.

 Therefore,

 the Board this

day adopts the repeal of 35

 Ill. Adm. Code 809.Subpart

I,

effective January

1,

 1992, pursuant to the mandate of new Section

56.2(d)

 of the Act.

PUBLIC COMMENTS

AND

 PUBLIC HEARING TESTIMONY

At hearing, Henry Henderson, an attorney with the City of

Chicago,

 stated the City’s concern that no repeal occur until

after the Governor signed H.B. 2491

 (now PA.

 87—752).

He

testified that the operative effect of the City’s medical waste

regulations

 is at least partly dependent on the state—level laws.

He further stated that the City intended to regulate those areas

128—889

2

not covered by state law.

 He concluded that the City lacks the

resources to police operations falling out of the state

regulatory system before the operative provisions of H.B. 2491

become effective

 (Tr. at 5—9

 & 13—14).

Francis

J.

 O’Brien, manager of BFI Medical Waste,

 similarly

stated that the repeal of

 35 Iii.

 Adm. Code 809.Subpart

 I should

occur concurrently with the effective date of H.B.

 2491.

He

cited about six municipal and county ordinances that regulate

wastes not covered under state laws,

 like that of the City of

Chicago ordinance.

 Mr. O’Brien stated that the enforcement

defense of Section 809.906 should appear in any future body of

rules governing potentially infectious medical wastes.

 That

provision allows reasonable reliance on a generator’s

representations as to the character and identity of its wastes.

In his opinion, the operative interim provisions of Sections

56.1, 56.2(b), 56.3,

 and 56.4 do not include this defense until

the Board adopts regulations pursuant to Sections 56.2(a)

and

(c)

(Tr.

 15—25).

The Board received three public comments on the proposed

repeal:

PC #1

 Department of Energy and Natural Resources

 (DENR),

by Stanley Yonkauski, General Counsel

 (received

September 10,

 1991); and

PC #2

 Office of the Secretary of State, Administrative

Code Division (Code Unit),

 by John Kenworth,

Rules/Research Analyst

 (received October

10,

1991).

PC #3

 Illinois Department of Commerce and Community

Affairs, Office of Regulatory Flexibility and

Legislative Research, by Linda M. Brand, Acting

Manager

 (received October 28,

 1991).

By PC #1, DENR stated that consideration of the economic

impact of regulating potentially infectious medical wastes will

be an essential part of the companion dockets:

 R91-20 and R91-

21.

 DENR opined that an economic impact study was not appro-

priate as to the repeal of 35 Ill.

 Adni.

 Code 809.Subpart

I.

By

PC #2, the Code Unit stated that the proposed repeal meets the

codification requirements.

 By PC

#

 3, DCCA found that the repeal

of 35

 Iii.

 Adm. Code 809.Subpart

 I would have no significant

economic impact.

FINAL ADOPTION ACTION

The effective date of PA.

 87—752 is January

1,

 1992.

Section 56.2(d) requires that the Board repeal Subpart

 I of Part

809 by January

1,

 1992.

 In light of the concerns expressed at

128—890

3

hearing over a disparity between the effective date of the

statutory amendments and the effective date of this repeal, the

Board will ultimately file this repeal in a manner that renders

it effective January

1,

 1992.

The Board adopts the repeal of Subpart

 I of Part 809 in the

same terms as it proposed the repeal for First Notice, by the

Opinion and Order of August 22,

 1991, and for Second Notice, by

the Opinion and Order of October 24,

 1991.

 Nothing in the record

of hearing or the public comments seeks or warrants revision of

the texf of the repeal, besides recitation of the January

1,

1992

effective date in the source notes.

 The text of the adopted

repeal follows.

However, the Board effects one procedural change from the

published “Notice of Proposed Repealer” that appeared at 15 Ill.

Reg.

 13017, September

6,

 1991.

 That notice should have appeared

as a “Notice of Proposed Amendments” because the repeal does not

affect Part 809 in its entirety.

~

 1 Ill.

 Adm. Code 100.220(c)

(Administrative Code publication rule).

 Therefore,

 the Illinois

Register notice in this matter shall appear as a “Notice of

Adopted Amendments,” pursuant to

 1 Ill.

 Adm. Code 100.220(c) (2).

ORDER

The Board hereby adopts the repeal of 35

 Ill.

 Adm. Code 809.

Subpart I and directs that the Clerk of the Board prepare and

submit a package to the Office of the Secretary of State for

filing and publication of a Notice of Adopted Amendments in the

Illinois Register.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE G:

 WASTE DISPOSAL

CHAPTER

I:

 POLLUTION CONTROL BOARD

SUBCHAPTER

i:

 SOLID WASTE

AND

SPECIAL WASTE HAULING

PART 809

SPECIAL WASTE HAULING

SUBPART A:

 GENERAL PROVISIONS

Section

809.101

 Authority, Policy and Purposes

809.102

 Severability

809. 103

 Definitions

SUBPART B:

 SPECIAL WASTE HAULING PERMITS

Section

809.201

 Special Waste Hauling Permits

—

 General

809.202

 Applications for Special Waste Hauling Permit-—Contents

809.203

 Applications for Special Waste Hauling Permit--

Signatures and Authorization

809.204

 Applications for Special Waste Hauling Permit--Filing

128—89 1

4

and Final Action by the Agency

Special Waste Hauling Permit Conditions

Special Waste Hauling Permit Revision

Transfer of Special Waste Hauling Permits

 Special Waste Hauling Permit Revocation

Permit No Defense

General Exemption from Special Waste Hauling Permit

Requirements

809.211

 Exemptions for Special Waste Haulers

Section

809.301

809.302

Section

809.401

809.402

Section

809.501

Section

809. 601

SUBPART C:

 DELIVERY

AND

ACCEPTANCE

Requirements for Delivery of Special Waste to Haulers

Requirements for Acceptance of Special Waste from

Haulers

SUBPART D:

 VEHICLE NUMBERS AND SYMBOLS

Vehicle Numbers

Special Waste Symbols

SUBPART

E:

 MANIFESTS, RECORDS

AND

REPORTING

Manifests, Records, Access to Records, Reporting

Requirements and Forms

SUBPART F:

 DURATION OF PERMITS

AND

TANK NUMBERS

Duration of Special Waste Hauler Permits and Tank

Numbers

SUBPART G: EMERGENCY CONTINGENCIES FOR SPILLS

Section

809.701

 General Provision

Section

809.801

809.802

SUBPART H:

 EFFECTIVE DATES

Compliance Date

Exceptions

SUBPART

 I: HAZARDOUS (INFECTIOUS) HOSPITAL WASTE

Definitions

 (Repealed)

Disposal Methods

 (Repealed)

Rendering Innocuous by Sterilization

 (Repealed)

Rendering Innocuous by Incineration

 (Rei,ealed)

Recordkeeping Requirements for Generators

 (Repealed)

Defense to Enforcement Action

 (Repealed)

809.205

809.206

809.207

809.208

809.209

809.210

Section

809.901

809.902

809.903

809.904

809.905

809.906

Appendix A

 Old Rule Numbers Referenced

AUTHORITY:

 Implementing Sections 5,

10,

 13 and 22 and authorized

128—892

5

by Section 27 of the Environmental Protection Act

 (Ill. Rev.

Stat.

 1989,

ch.

 111¼,

 pars.

 1005,

 1010,

 1013,

 1022,

 1027,

and

1056.2)

SOURCE:

 Adopted

 in R76-10,

 33 PCB 131,

at

 3 Ill. Reg.

13,

p.

155, effective March 31,

 1979;

 emergency amendment in R76-10,

39

PCB 175, at

4

 Ill. Reg. 34,

p.

 214, effective August

7,

 1980,

for

a maximum of 150 days;

 emergency amendment in R80-19, 40 PCB 159,

at 5 Ill. Reg.

 270, effective January 1,

 1981,

 for a maximum of

150 days;

 amended in R77—12(B),

 41 PCB 369, at 5 Ill. Reg.

 6384,

effectiie May 28,

 1981; amended in R80—19, 41 PCB 459, at 5

 Ill.

Reg.

 6378,

 effective May 31,

 1981; codified in R81—9,

 53 PCB 269,

at

 7 Ill. Reg.

 13640; recodified in R84—5,

 58 PCB 267, from

Subchapter h to Subchapter

 i at 8

 Ill.

 Reg.

 13198; amended in

R89—13A at 14

 Ill.

 Reg. 14076, effective August 15,

 1990; amended

in R91-18 at

 Ill. Reg.

 effective January 1,

 1992.

Capitalization denotes statutory language.

SUBPART I:

 HAZARDOUS

 (INFECTIOUS) HOSPITAL WASTE

Section 809.901

 Definitions

 (Repealed)

of thia~Cubpartonly

“Hazardous

 (infectious) Hospital Waste” means waste

which has been generated by a hospital in connection

with patient care that is contaminated with or may be

contaminated with an infectious agent that has thc

potential.of inducing an infection and which has not

teen rendered

 innocuous by steril.L.zatL.W ~

incineration.

 Hore specifically,

 “Hazardous

(infectious) Hospital Waste” means:

medical and patient care items contaminated by,

and human exoreta produced by, persons who have

been placed in strict or enteric isolation for the

control and treatment of an infectious disease by

the hospital’s Infection Control Committee

pursuant to the infection control policies and

procedures required of it by Cection D of Part IX

 of the Rules of the Illinois Department of Public

Health,

5

 Ill. Reg.

 553 et seq.

 (1981), as from

time to time amended, and

medical and patient care

are

contaminated by or have been in contact with,

either the wound or skin of r~ntientswho have

piaced in wound or skin isolation or strict

isolation,

 or the mucous or other respiratory

fluids of patients who have been placed in

128—893

6

respiratory isolation or strict isolQtion bytho

hospital’s Infection Control Committee pursuant to

the infection control policies and procedures

required of

 it by Section D of Part IX of the

Rules of the Illinois Department of Public Health,

5 Ill.

 fleg.

 553 Ct seq.~

 (1901),

 as from time to

time amended, and

medical and patient care items contaminated during

surgery when the case is infectious,

and

tissues (human or animal), pathological waste,

and

 that arc contaminated by an infectious

agent,

and

tem~

-..~

terio~!

......_.reta

that

testing,

and

a~y

 other waste which, because of its infectious

nature,

 is ordered to receive special handling and

disposal by thc hospital’s Infection Control

 Committee pursuant to the infection control

policies and procedures required of it by Section

D “Infectious Control” of Part IX of the Rules of

the Illinois Department of Public health,

 5 Ill.

fleg.

 553 et seq.

 (1001),

 as from time to time

amended.

“Hospital” means any institution, place, building, or

agency, public or private, whether organized for profit

not,

devoted

primarily

the

maintenance

and

operation of facilities for the diagnosis and treatment

or care of two or more unrelated persons admitted for

overnight stay or longer in order to obtain medical,

including obstetric, psychiatric and nursing, care of

illness, disease,

 injury,

 infirmity,

 or deformity.

“Hospital” includes general and specialized hospitals,

tuberculosis sanituria,

 mental or psychiatric hospitals

and panitaria, maternity homes,

 lying-in homes,

and

homes for unwed mothers in which care is given during

delivery.

 “Hospital” does not include, for example,

nursing homes,

 offices of human or animal health care

providers,

 out patient clinics, or veterinary

hospitals.

“Incineration” means the complete reduction of a

substance to ashes by means of combustion.

“Innocuous Hospital Waste” is not a special waste,

but

fnr

th~

 purposes

rtf

th~~

~iihrt-,p-i-

 means any

h~rni~

hospital

 which

 ha.~..

bCen;~~J

 ste~i~ized

128—894

tJ-

rtrii

r!n

r-~ii

r11r~~a

r~ru~

otJ~~r

bacteriological

7

incinerated so as to render it incapable of causing

infection.

“Normal Hospital Waste”

 is not a special waste, but

the purposes of this Subpart includes, but is not

for

limited to,

 garbage, refuse, such as packaging

materials removed before a product reaches patient care

tems

disoosable

~-‘.

and

patient

basi~

 and ....~rpitchers which have not

eantact with a patient in isolation; and facial tissue

and ather patient contact items which have not been

generated by a patient in isolation.

“Sterilization” means the complete destruction of

microorganisms by moist or dry heat or by bactericidal

~-~hrmi

r~~i

~mirt11rir~t

(Source:

 Repealed at

1992)

Ill. Reg.

 effective January 1,

Section 809.902

 Disposal Methods

 (Repealed)

a)

 No person

hospital

shall

waste

cause

to be

or allow

deposited

hazardous

 (infectious)

in any landfill.

b)

——--..—,,—.

~infcctious) ~

 .,....ste shall be

innocuous pursuant to Sections 009.903 and 009.904,

or

h~

disposed of, where lawful,

 by deposit

int~n

c)

 Innocuous hospital waste and normal hospital wa

h~~1i~nosedof

1w

 ~ni.i

lawful means,

 including

incineration in any incinerator appropriate for

waste and for which the Agency has issued a permit, by

deposit in any sanitary landfill or by deposit into a

miiriir~~irn~

 i~r~t~

sewerage

(Source:

 Repealed at

1992)

Ill.

 Reg.

 effective January

1,

Section 809.903

 Rendering Innocuous by Sterilization

(Repealed)

Any

hazardous

 (infectious)

 hospital

innocuous hospital waste by:

a)

 Sterilization

_.n

A~t~

autoclavc,

provided

aIt#~,a

mnendations and the autocla’

~ified

at

least

weekly

with

~taining

128—895

—-_3

effectiveness

—

——

b)

 Sterilization of the waste in a commercial ethylene

oxide unit that provide3 controlled temperature and

humidity conditions, provided that the unit is operated

in accordance with the manufn

1ii~R1~~

rnmm~n1-irn~

and the unit’s effcctivenes~

use with a biological spore

subtiljs.

(Source:

 Repealed at

1992)

Ill. Reg.

 effective January

1,

Section 809.904

 Rendering Innocuous by Incineration

(Repealed)

a)

Any

hazardous

(

infcctious)

hospital

wa3te

may

—J

apparatus is an incinerator

1.o

destroy the type or class

u..~

waste

introau~cc~into

it,

 and is operated according to

the manufacturer’s instructions, and

2)

 All permits required by 35 Ill. Adm.

 Code,

Subtitle B, Chapter

1

 (prior to codifIr~ni-inn~

2:

 Air Pollution)

 have been

f:

the Agency, and the conditions of those permits

have been met.

b)

 The ash produced by the incineration of hazardous

(infectious) hospital waste shall be disposed of as

required by this Part and 35

 Ill. Adm. Code 007 for

di~nn~~ni

i-if

,-~thp~r

rin~~nt~r~r

n~h

(Source:

 Repealed at

1992)

Ill. Reg.

 effective January

1,

Section 809.905

 Recordkeeping Requirements for Generators

(Repealed)

a)

 Generators of hazardous (infectious) hospital waste who

render such waste into innocuous hospital waste shall

keep and make reasonably available for Agency

inspection:

1)

 Records of any required biological spore assay

tc~ts.

2)

 Records describing the approximate amount of waste

sterilized or incinerated.

128—896

is verified during each

issay containing B.

1)

 The combus

designed

—--3

9

,~swhich demonstrate proper operation of the

sterilization or incineration equipment (such as

time and temperature maintenance for each load).

ne requirements ci ~u~section

‘~‘

DC

satisfied by

maintenance

 of the records in the form rcqui-~edto be

kept

 by any hospital licensing or accreditation body,

nvnritird

 tihnt~

~iirth

r~-~nvri~int-~indr~

infr~tm~t~ir~n

(Source:

Repealed

1992)

effective

January

Section

809.906

 Defense to Enforcement Action

 (Repealed)

Reasonable reliance on a waste generator’s identification of

waste as innocuous or normal hospital waste shall be a complete

defense to an

enforcement

 action against a person other than the

waste generator for violation of Section 009.202(a).

(Source:

 Repealed at

1992)

 effective January

1,

ORDERED.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certi~y~that

the

abov,e

Opinion

and

Order

was

adopted

on/the

~—z~-~

 day of

/-~~‘~~/

1991,

vote

—l

Ill.

Reg.

Ill. Reg.

-~-

Control Board

128—89 7