ILLINOIS POLLUTION CONTROL BOARD
February 28,
1991
IN THE MATTER OF:
)
)
R9O—17
RCRA DELISTINGS
)
Identical
in substance
)
Rulemaking
ADOPTED RULES.
FINAL ORDER.
OPINION OF THE BOARD
(by
J. Anderson):
By a separate Order,
pursuant to Section 22.4(a) of the Environmental
Protection Act
(Act), the Board
is amending the RCRA hazardous waste
regulations.
This action involves 35 Ill. Adm. Code 720 and
721.
Section 22.4 of the Act governs adoption of regulations establishing the
RCRA program
in Illinois.
Section 22.4(a) provides for quick adoption
of
regulations which are “identical
in substance” to federal regulations;
Section 22.4(a) provides that Title VII
of the Act and Section
5 of the
Administrative Procedure Act shall
not apply.
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 RCRA regulations are found at 40 CFR
260 through 270.
This rulemaking makes technical changes to the Board’s
hazardous waste delisting procedures
in response to USEPA’s delegation of
delisting authority at
55 Fed. Reg.
7320, March
1., 1990.
PUBLIC COMMENT
The Board adopted
a Proposed Opinion and Order on July 19,
1990.
The
proposed rules appeared on August
31,
1990,
at
14
Ill.
Reg. 13925.
The Board
has received the following public comment:
PC
I
Administrative Code Division, September 19,
1990
PC 2
Illinois Environmental Protection Agency (Agency), October
15,
1990
PC
3
Chemical Waste Management,
Inc.
(CWM), October 15,
1990
PC
4
Keystone Steel
and Wire (Keystone), October
25, 1990
PC
5
JCAR,
September
5 and November 21, 1990
PC
6
USEPA,
February 27,
1991
On October 25,
1990,
Keystone also filed
a motion for leave
to file
instanter, which
is granted.
The
late comments from JCAR and USEPA are also
accepted.
119—181
—2—
The Administrative Code Division requested changes
in the format of the
rules, which have generally been made.
(PC 1)
JCAR indicated that
it had no
questions regarding this rulemaking.
(PC 5)
This rulemaking has generated more comment per page than any other
identical
in substance rulemaking.
The
Board appreciates the thorough review
which
has been conducted by the commenters.
Although the USEPA comment
is
very late,
this is because USEPA has made a special
effort, outside of its
normal procedures,
to assure that the adjusted standards mechanism will be
approvable under the RCRA Act.
HISTORY
This action
is based on USEPA’s March
1,
1990,
delegation of delisting
authority to
Illinois.
The Board
normally “batches” USEPA actions over a
calendar half for Board adoption.
However,
the first half of 1990 did not
follow this schedule.
The Board addressed the first quarter of
1990
in R90-
10,
in order to provide expedited adoption of the TCLP test as part of the
definition of “hazardous waste”.
R90-1O was adopted on August
30,
1990,
and
slightly modified on September
13,
1990.
The Board then addressed the second
quarter of 1990
in R90—11,
including the “third third”
land disposal
bans.
R9O-11 was proposed
on December 20,
1990.
The complete history of the RCRA
updates is contained in the Proposed Opinion
in
R9O-11.
The March
1,
1990, delisting delegation was not addressed
in R90—1O,
because delegations do not ordinarily result
in any need for modifications to
identical
in substance regulations.
However, when the Board began to receive
calls
from USEPA concerning transfers of
files, and from the public concerning
original delisting,
it became apparent that the existing rules on delisting
were inadequate, for the reasons discussed below.
The Board therefore opened
this Docket
to consider needed amendments.
This rulemaking
involves 35
Ill. Adm. Code 720.120,
720. 122, 721.110 and
721.111.
These Sections were adopted and amended
in the following actions:
R81—22
February 4,
1982;
45 PCB 317, 341,
345,
348
R86—1
July 11,
1986;
71
PCB
110,
122
R87-5
October
15,
1987;
82 PCB 391, 396
R89—9
March
8,
1990;
p.
10
At the time the proposal was formulated,
R90—2 was adopted, but not yet
filed,
and R90—10 was proposed, but not yet adopted.
The base text was drawn
from the rules as they existed on adoption
of R90—2.
As
is discussed below,
some Sections
in this Proposal were amended
in R90—1O.
It
is therefore
necessary to reformulate the base text to reflect R90-10.
To make matters
more confusing,
R9O—i1 includes a critical USEPA corrective amendment, which
needs
to
be addressed in this Docket.
(PC 6)
119—
182
—3—
GENERAL DISCUSSION
On March
1, 1990,
USEPA delegated authority to Illinois to administer
several additional components of theRCRA program.
(55 Fed. Reg. 7320)
This
included Board authority to delist hazardous waste,
in lieu of USEPA,
pursuant
to 35
Ill. Adm. Code 720.122.
The USEPA rules define hazardous waste
in two basic ways.
A waste
is
hazardous either:
because it exhibits
a hazardous characteristic;
or, because
it
is listed
by name or by the name of the process which produces the waste.
In the latter case the listings may be over—inclusive.
For example, USEPA
might determine that Process A produces Waste
M which generally has hazardous
constituents X,
Y and
Z.
USEPA would then “list” “wastes from Process A”
or
“Waste M”.
Wastes which met this description would
be hazardous, regardless
of whether constituents X,
V or Z were actually present.
Delisting would be
appropriate
if the generator demonstrated that X,
Y and Z were not actually
present
in
its waste,
and that there were no other hazardous constituents.
There are two basic problems with the Board’s delisting Section,
35
Ill.
Adm. Code 720.122.
First, Section 720.122 was premised on the assumption that USEPA would
initially delist wastes, followed by essentially. ministerial Board action
in
an
“identical
in substance” rulemaking.
For this reason, the Board relied on
incorporation by reference of USEPA rules, ratherthan following
its usual
practice of adopting the verbatim text.
Worse,
the USEPA Section
(40 CFR
260.22)
in turn references the USEPA standards for defining hazardous waste
characteristics and listing hazardous wastes, which
standards were also
incorporated
by reference
in 35
Ill. Adm. Code 721.110 and 721.111.
In the
context of a system in which the Board
is the direct recipient of delisting
procedures,
these provisions may be confusing to the public, contrary to the
directive of Section 7.2(a)(4) of the Act.
Second,
35
Ill.
Adm. Code 720.122 requires the Board to use traditional
site-specific rulemaking to delist hazardous waste.
This was the only
procedure available at the time.
However,
in
Illinois, site—specific
rulemaking can be
a slow, resource-consuming process.
The Board now has
authority under Section 28.1 of the Act to handle this type of decision more
efficiently
by way of the adjusted standards procedures.
This is particularly
true where,
as here,
an economic showing
is not at issue.
(PC 2,
3,
4)
As is discussed in greater detail
below,
the Board has addressed these
problems
in two ways.
First, the Board has replaced the incorporations by
reference with the verbatim text,
tailored to fit Illinois procedures.
Second, the Board has adopted,
in
lieu of the site specific procedures,
the
adjusted standards procedures,
a procedure we believe is compatible with
USEPA’ s requirements.
APPROVABILITY OF ADJUSTED STANDARDS FOR DELISTING
The Board specifically solicited comment as
to whether the Agency would
need to request reauthorization to use the adjusted standard procedure, or
whether USEPA could approve this alternative
in
a less formal
way.
The Agency
indicated that
it was uncertain as to whether formal reauthorization would be
119—183
—4-
required, but that USEPA had indicated that some form of simplified or
expedited authorization procedure may be appropriate.
(PC 2,
#1)
Once authorized,
Illinois can administer the RCRA program pursuant
to 40
CFR 271.3,
subject only to the potential loss of program authority pursuant to
40 CFR 271.22 and 271.23.
(PC 4)
It appears .therefore that Illinois can
revise the delisting procedures subsequent
to authorization, and implement the
new procedures without awaiting reauthorization from USEPA.
Of course, the
Board needs
to make certain that the new procedures continue to meet USEPA
requirements, to avoid future loss of program authorization.
Pursuant to 40 CFR 271.9(b), to receive delisting authority, the State
need only adopt regulations equivalent to 40 CFR 260.20(b)
and 260.22,
and
provide “public notice and opportunity for comment before granting or denying
delisting requests.”
(PC
3,
4)
As
is discussed below, the Board has adopted
the equivalent of 40 CFR 260.20(b) and 260.22, and the adjusted standards
procedures provide for public notice and opportunity for comment which are
equivalent to that provided
by USEPA when
it delists.
SUMMARY OF THE ADJUSTED STANDARDS PROCEDURE
Adjusted standards are authorized
by Section 28.1 of the Act, which
allows the Board, after adopting
a regulation of general applicability, to
grant,
in
a subsequent adjudicatory determination, an adjusted standard for
persons who can justify such adjustment.
Adjusted
standards come in two
varieties.
The first,
called
a “generic adjusted standard”, can be granted
from any general regulation,
if the petitionermakes the general
showing
specified
in Section 28.1(c)
of
the Act.
The second type can be granted. only
if the petitioner has made the
“level
of justification” showings that had been
articulated by the Board when it adopted the regulation of general
applicability.
The adjusted standard for delisting is
of the
latter
variety:
the Board has specified the level of justification in this
rulemaking.
The level of justification is that specified in 40 CFR 260, as
reflected
in Section 720.120 and 720.122.
The use of the term “justification” makes the rules somewhat
longer.
However,
it
is necessary to use this round—about terminology
in Section
720.122(n)(2)
in order
to make it clear that the Board
intends to be
specifying a “level
of justification” under Section 28.1 of the Act.
(PC 6)
The Board has adopted procedural rules implementing the adjusted standard
mechanism of Section 28.1 of the Act.
The procedural rules are
in
35
Ill.
Adm. Code 106.701
et seq.,
and were adopted
in R88—5(A).
(June
8,
1989;
100
PCB 95, 110)
The Board also has adjusted standards procedures which are specific for
certain types of RCRA determinations,
including the “boiler determination”
in
Section 720.133
(40 CFR 260.33).
These were adopted
in R85—22 (December 20,
1985, and January
9,
1986;
67
PCB 175),
and amended
in R86—46
(July
16,
1987
and August 14,
1987)
and are found
at
35
Ill. Adm. Code 106.401
et
seq.
These
procedures are slightly, but
not significantly, different than those
in
Section 106.701
et
seq.
However,
the Board does not see any reason to cite to
119—
184
-5—
the RCRA-specific adjusted standard procedures
in this rulemaking, and hence
has cited to the newer,
general procedures adopted
in R88-5(A).
The adjusted. standard procedure may be initiated by
a petitioner acting
alone, or with the Agency as
a co—petitioner.
(Section 106.703)
The contents
of the petition are specified
in Section 106.705.
As provided
in Section
106.701(1),
the petitioner would not need to provide information which
duplicates that requested in Section 720.122.
If the Agency
is not a co—
petitioner,
it
is required to file a response within
30 days after the filing
of the petition,
in which
it must recommend a grant or denial
of the
petition.
(Section 106.714)
Within
14 days after filing of the petition, the petitioner must publish
a public notice of the filing of the petition
in a newspaper in the area
likely to
be affected.
(Section 106.711)
The notice gives members of the
public
21 days to request
a public hearing.
(Section 106.713)
The Board will
schedule a hearing
if
one
is requested,
or
if
it otherwise determines that one
is advisable.
(Section 106.801)
Interested persons are allowed to present
testimony and exhibits.
(Section 106.806)
A final
comment period
is allowed
following the public hearing.
(Section 106.807)
40 CFR 271.9(b) requires only that the State provide “public notice and
opportunity to comment before granting or denying delisting requests.”
(PC 3,
4)
However, the USEPA has suggested that the State should agree to publish
notices of tentative decision for public comment, and provide
a 30-day public
comment period during which
concerned persons may request
a hearing.
(PC 6)
The Board believes that the adjusted standard procedure meets the standard of
40 CFR 271.9(b), and
is within the ambit
of USEPA’s suggestion.
The Board
views
i.ts acceptance of a petition accommodates the USEPA’s “tentative
decision”
notice.
Although the “within 14 days after” public notice
requirement could conceivably
be given immediately upon the filing of the
petition,
in actual practice
it will occur several days later.
This time,
coupled with the 21
day period following the notice, will be approximately 30
days after the tentative decision.
SECTION-BY—SECTION DISCUSSION
PART 720
Section 720.111
The Board has added an incorporation by reference for the guidance manual
for delisting, which
is used below.
The April,
1985,
edition
is still
current.
(PC 2,
3,
6)
This Section also cites
to SW—846.
During the pendency of this proposal,
in R90—10, this was revised to cite to the Third Edition, November,
1986,
available from the GPO.
(PC
6)
The base text has been updated
to reflect the
rules
as amended
in R90—10.
Section 720.120
This Section corresponds
to 40 CFR 260.20, which sets forth USEPA’s
procedures for citizens
to
initiate rulemaking.
In adopting the Section the
Board referenced its procedures
in
35
Ill. Adm. Code
102, which also allow any
119—185
-6-
person to initiate rulemaking.
In addition,
the Board differentiated
petitions to adopt “identical
in substance” rules pursuant to Section 22.4(a)
of the Act from other petitions to adopt additional regulations pursuant to
Title VII
of the Act rulemaking.
Notice an opportunity for public comment on proposed regulations are
provided for in Section 7.2 (for identical
in substance),
and Title VII of the
Environmental
Protection Act and Section
5 of the Administrative Procedures
Act.
The only change to this Section
is that it has been amended
to include
a
reference to 35
Ill. Adm. Code 726.
This is equivalent to 40 CFR 266, which
is omitted from the USEPA list of Sections which may be amended pursuant to
citizen petition.
This is evidently an
inadvertent omission from the USEPA
rules.
(PC 2)
Section 720.122
This Section corresponds to 40 CFR 260.22, which sets forth the standards
for delisting,
and the contents of the delisting petition.
The existing
Section incorporates 40 CFR 260.22
by reference, and explains how delisting
fits into the State program.
The existing subsections
(a) through
(f) have
been moved down to subsections
(m)
et
seq.,
to maintain close correspondence
with the subsection labels
in the USEPA rule, the verbatim text of which
is
now set forth
at length.
The portion of 40 CFR 260.22(a) which specifies that a person must file a
regulatory petition
to obtain
a delisting has been deleted.
The Board has
replaced this with a cross reference to subsection
(n), which will include
adjusted standards as the new procedure,
as
is discussed below.
40 CFR 260.22(a) appears to be stating a general delisting standard,
which
is supplemented by more specific standards for various types of
hazardous waste.
The subsequent subsections appear to say pretty much the
same thing,
as applied to the specific types of waste.
(PC
2,
6)
The Board
has added headings to subsections
(b) through
(e) indicating to
what types of
hazardous waste the subsections apply.
The type is obvious
except with respect
to subsection (b).
It appears to apply to “listed wastes
and mixtures”.
However, this overlaps some of the following categories which
are also Subpart D listed wastes.
(PC 2)
This subsection emphasizes that
wastes which are hazardous due to the “derived from” or “mixture”
(Section
721.103(d)) rules may also be delisted.
However,
it also clarifies that
constituents of concern may arise from the non—hazardous wastes mixed with
hazardous waste,
and that the petitioner. must analyze for everything of
concern
in
the mixture.
(PC 6)
The USEPA rules include
a number of standards which are a real concern
under the
Illinois APA.
An example
is:
“demonstrates
to the satisfaction of
119—186
—7—
the Administrator”.
The Board has changed many of these to clear, objective
standards.
The USEPA rules
include another standard which
is of concern, the
standard for whether to consider other possible hazard characteristics besides
the ones which caused the waste to be
listed.
This reads as follows:
If
the Boardi
has
a reasonable basis to believe that
factors (including additional
constituents) other than
those for which the waste was listed could cause the
waste to be hazardous waste, that such factors do not
warrant retaining the waste as
a hazardous waste.
The Agency suggested that this language was capable of implementation.
(PC 2, #2).
On the other hand,
CWM recommended the addition of clarifying
language, which the Board has included at this and similar points:
A Board determination under the preceding sentence
must be made by reliance on,
and
in a manner
consistent with,
“Petitions to Delist
--
A Guidance
Manual”, incorporated
by reference
in Section 720.111.
40 CFR 260.22(d) applies to 0—listed toxic wastes.
It includes
a
reference to the factors USEPA considered
in listing these wastes, which are
in 40 CFR 261.11.
As is discussed below, the Board has replaced
incorporations by reference with verbatim text for that Section also.
40 CFR 260.22(f) and
(g)
are
“reserved” for radioactive and infectious
waste.
Code Division requirements prohibit reserving subsections.
However,
holes will
be left to preserve the correspondence of subsection labels.
(PC
1)
Following 40 CFR 260.22(1)
is
a note referencing the Federal Register
publication of a notice of availability of the guidance document on
delisting.
The Board has replaced this with a reference to the document
itself, which has been incorporated by reference in Section 720.111, above.
As noted above, the existing text of Section 720.122 mostly deals with
fitting the federal
delistings
into the State program.
The existing text now
appears beginning with Section 720.122(m), which continues to authorize
persons to propose “identical
in substance” delistings following USEPA
action.
This remains
a useful provision even after delegation, because USEPA
might retain authority to delist
in a multistate situation.
In such a case,
the Board could continue to use “identical
in substance” rulemaking to enter
the result into the Illinois rules.
Existing Section 720.120(a)
(now renumbered to
(m)) allows persons to
propose to the Board either
“general delistings” or “delisting of specific
wastes” which have been adopted by USEPA.
By
“general delistings”, the Board
means
a USEPA action removing
a listing from its regulations.
At the time
this Section was adopted (R81-22),
it was not clear whether 40 CFR 260.22
would govern such “general delistings”.
It
is now clear that it does not,
and
the Board has therefore removed the reference to “general delistings”
from
119—187
-8-
Section 720.122(m).
(PC 6)
“General
delistings” will
be handled through the
routine update process.
Section 720.122(n)
is drawn from old subsection (b).
As
is discussed
in
general
above,
it allows procedures for original Board action on a
delisting.
As amended,
it requires the use of the adjusted standards
procedural rules under 35 Ill. Adm. Code 1O6.Subpart G.
As is discussed
in
general above,
the “justification” for the adjusted standard
is
the USEPA
delisting requirements above.
The term “justification”
is
a term of art in
Section 28.1 of the Act.
(PC 6)
The Board proposed to allow the use of either site specific rulemaking or
the adjusted standards procedures for delisting.
In part this was to allow
persons to continue to use site specific rulemaking pending formal
approval of
the adjusted standards mechanism by USEPA.
However, as
is discussed
in
general
above,
the public comment
in this matter has pursuaded the Board that
the adjusted standard mechanism meets all USEPA requirements,
and that prior
approval
is not required.
The Board has therefore deleted the option of
continuing
to use site specific rulemaking.
A few site specific delisting proposals are pending.
(R90—18, R90—22)
At the request of the parties, the Board will redocket these
as adjusted
standards, and will enter such Orders
as may be appropriate to continue these
as adjusted standards.
Section 720.122(c)
has been renumbered
to Section 720.122(o).
This
Section distinguishes the Agency’s authority to determine whether something is
a hazardous waste from the Board’s delisting authority.
While the Agency’s
action must be based on the regulatory definition,
the Board’s action changes
the regulatory definition.
This Section was adopted
in R81—22.
(45 PCB
345)
(PC
6)
Old Section 720.122(d) contained the incorporation by reference of 40 CFR
260.22.
This has been replaced with the verbatim text discussed above.
Section 720.122(d), renumbered to 720.122(p), also contains the
requirement that,
before the Board adopts
a USEPA delisting, someone
demonstrate that the delisting needs to be adopted as a part of the Illinois
RCRA program.
This was added
in R86—1
(71 PCB
123).
This limitation
is
now
codified
in Section 7.2(a)(1) of the Act.
Most USEPA delistings concern
wastes generated and managed outside Illinois.
Delistings do not
need to be
added to the Illinois rules unless the waste
is generated or somehow managed
in Illinois.
Consistent with CWM’s
comments
(PC 3), the Board has clarified
this language to read as follows:
Any petition to delist
...
sha4
4ne4u~ea show4~g
that the 4e34st4~~ee~sto be a~o~te~
as
a pa~’tof
the fl34no4s RGRA p~o~am
must include
a showing that
the waste will be generated or managed
in
Illinois.
Old Section 720.122(e)
has been moved to Section 720.122(q).
This
provided that the Board would not approve delistings
if they would make the
Illinois program
less than “substantially equivalent” to the USEPA program.
The Board has received comment from CWM and USEPA on this language.
(PC 3,
119—188
-g
-
6)
These appear to stem from the fact that, once Illinois delists
a waste
in
an independent action, the Illinois program will
no longer be equivalent
to
the LJSEPA program in the sense of regulating the same universe of wastes.
CWM
has suggested that the language be changed to provide that the petitioner must
show that “the delisting,
if granted, will not cause loss of authorization of
the State RCRA program”.
(PC 3)
USEPA has suggested more specific language
to the effect that the Board would “not grant any petition which would render
the State program less stringent than if decisions on delisting petitions were
made by USEPA”.
(PC 6)
The Board has modified this language along the lines
suggested by USEPA.
USEPA has requested a number of minor procedures, which have been added
to Section 720.122(q).
The petitioner will be required to mail
a copy of any
adjusted standard petition to USEPA,
both Region
V and the Office of Solid
Waste.
The Board will mail copies of
the final
decision,
and any modifying
orders, to both USEPA offices.
(PC
6)
One minor difference between the USEPA delisting procedure and the
adjusted standards procedure
is that, while the former results
in
a permanent
“delisting”
which appears
in the CFR, an adjusted standard
is an Order given
just to the petitioner
(and USEPA and the Agency).
This could pose problems,
since a delisting affects persons managing the waste,
as well
as the
petitioner.
Section 28.1(d)(3) requires an annual publication of a list of
adjusted standards in the Illinois Register, but this would not be convenient
for the average person using the regulations.
It would
be preferable
if
a
central
listing of adjusted standards were maintained with the rules,
similar
to the delistings
in 40 CFR 261, Appendix
IX.
However, this could not be done
directly, since the Board does not have the power to directly modify
a
regulation
in an adjusted standard proceeding.
In Section 720.122(q), the Board has obligated itself to maintain a list
of adjusted standards in 35 Ill. Adm. Code 721.Appendix
I,
as
a part of the
routine updating of the regulations
in response to USEPA actions.
Although
there will be a six to twelve month
lag before new adjusted standards appear
on the
list,
it will help in keeping track of the older standards.
The Board does not intend to publish the entire text of the adjusted
standard
in the Appendix.
Rather, the Board will list the name of
the
petitioner, Docket number, date(s) of decisions and a short name for the
waste.
It
is arguable that the Board cannot publish such a list pursuant to its
identical
in substance mandate,
as defined
in Section 7.2 of the Act.
However, with respect to delisting, the Board has replaced USEPA
as the
delisting authority in Illinois.
In order to continue to keep the equivalent
of 40 CFR 261, Appendix
IX up to date,
the Board has to publish a listing of
its delisting actions.
In addition,
the Board has independent authority for
this Appendix in the directive of Section 28,.1(d)(3) of the Act,
since
it
is
also a means to assure publication in the Illinois Register.
Old Section 720.122(f) has been moved to Section 720.122(r).
Delistings
apply only in Illinois.
It also includes a provision that generators must
comply with Part
722 for waste which
is hazardous in any state to which
it
is
transported.
CWM has objected to the this language.
(PC 3)
119—189.
—10-.
The language in question was adopted
in R81—22, with the discussion on
page 30 of the Opinion (45 PCB 346).
The language was amended
in R86—1,
to
recognize the possibility that USEPA would retain primacy
in some
jurisdictions.
(71 PCB
123).
CWM has asserted that generators are subject to the laws of the receiving
state.
(PC 3)
This is incorrect.
Although Section 722.121 requires the use
of the receiving State’s manifest,
it
is an Illinois
law.
CWM’s general assertion that generators are subject to the receiving
State’s
law,
if true, would create many conflict of
law problems.
For
example, 40 CFR 260.34 and 35
Ill. Adm. Code 720.134 set time limits on
generator storage of waste.
CWM seems to be saying that the recipient State’s
law controls these storage times.
First, this would mean that a hazardous
waste generator could escape regulation
in Illinois be declaring that he
intended to ship waste to a State
in which the waste was delisted.
Second,
it
would
be an unacceptable intrusion into Illinois’ regulation of hazardous
waste generators
if other states
had the power to grant extensions of storage
times for wastes
inside Illinois.
Third, since the generator would not know
which state’s storage
law applied until
after the generator decided where
to
ship the waste,
no state would have jurisdiction
to grant extensions
of the
storage times.
CWM appears to be focusing on a situation
in which an Illinois generator
of
an Illinois delisted waste decided to
ship the waste to a state which
had
not delisted
the waste.
This
is somewhat different,
in that the waste would
be unregulated
in
Illinois, but regulated
in the other State.
This example
may not be worth considering,
since the generator would not do something
against his economic
interest.
However,
in such a situation, the present
wording of Section 720.122(r)
could
be read to give retroactive applicability
to the Illinois generator rules.
The definition of “generator”
in
40 CFR 260.10 and 35
Ill. Adm. Code
720.110 includes “any person whose act first causes
a hazardous waste to
become subject to regulation”.
In the case of an
Illinois delisted waste
shipped to
a state which has not delisted that waste,
the act of generation
would then be the decision to ship out of State.
The generator would have to
initiate a manifest under Section 722.123,
and comply with various
recordkeeping and reporting requirements.
If the generator did not have
a
generator i.d. number,
he would
have to obtain one under Section 722.112.
However, these requirements would arise at
the time the person decided to ship
the waste, not retroactively to the time the waste was physically created.
The Board has considered rewriting Section 720.122(r)
so
as to
specifically state that the duty to comply with Part 722 arises upon the
decision to ship.
The Board has not done so,
since,
as noted above,
the
ambiguity seems to arise only in what appears to be the unlikely example of a
person shipping a delisted waste to an “undelisted”
state.
PART 721
As was discussed above,
the USEPA standards for delisting reference the
criteria for listing hazardous waste
in 40 CFR 261.11, which
in turn
is
closely related to 40 CFR 261.10.
In adopting equivalents
of
these Sections
119—190
—11—
in
35 Ill. Adm. Code 721.110 and 721.111, the Board used incorporation by
reference, without setting forth the verbatim text.
The Board incorporated
these Sections by reference for two reasons.
First, even if the Board were to identify additional criteria or list
additional wastes, these two Sections would not be controlling.
Rather, the
broad mandates of Sections 22.4(c) and 27 of the Act would control.
There
is
nothing
in federal or State law which would prevent the Board, acting pursuant
to normal rulemaking procedures, from identifying wholly new criteria, or
redefining USEPA’s criteria
in a more inclusive manner.
Second,
if the Board adopted the verbatim text of these Sections,
it
would appear to govern future regulatory actions taken
by USEPA.
This basis
for not adopting
is now codified
in Section 7.2(a)(1) of the Act.
Section 7.2(a)(4) now authorizes incorporation by reference only where
it
would not be confusing to the public.
As is discussed above, the delisting
ruleswill be incomplete without
a portion of these listing rules.
The Board
has therefore adopted the verbatim text.
However, the verbatim text has been
reworded
so that
it governs neither future actions by the Board nor USEPA.
Rather, the text
is set forth
as neutral statements of the criteria which were
used by
USEPA to identify hazardous characteristics
and to
list hazardous
waste.
In this way the needed standards are present, but the unintended
effects are avoided.
Section 721.110
This Section
is drawn from 40 CFR 261.10.
This Section contains the
criteria used by USEPA
to
“identify” the characteristics of hazardous waste.
For example, ignitability and toxicity are “characteristics” of hazardous
waste which USEPA has identified pursuant to this Section.
As discussed above,
the Board has replaced the incorporation by reference
with the verbatim text, edited to avoid stating this as
a State rule with
which USEPA and the Board must comply.
40 CFR 261.10 has a subsection (a), but no (b).
(PC 6)
This
is
prohibited by the Code Unit.
The simplest way to codify this Section would
be
to promote the
levels of
subdivision.
However, this would destroy the close
correspondence between the Board and USEPA numbering.
Instead,
the Board has
added
a do-nothing cross reference as subsection
(b).
Section 721.111
This Section
is drawn from 40 CFR 260.11.
It sets forth the criteria
which were used by USEPA to “list” wastes.
For example, waste which
has LD50
(rat)
of less than 50 mg/kg
is listed as “acute hazardous waste”.
As originally adopted, this Section
is mainly an incorporation by
reference of the USEPA rule.
As
is discussed in general above,
the Board has
replaced the incorporation by reference with the verbatim text,
edited to
avoid stating
it
as
a State rule with which
the Board
and USEPA must comply.
119—19
1
—12—
The Standard which
is referenced
in 40 CFR 260.22, which
is
the main
purpose of adopting this Section,
is 40 CFR 261.11(a)(3).
This is the
standard for listing
a toxic waste.
As this formerly read, USEPA listed any
waste which contains an Appendix VIII
(or H)
contaminant, unless
it determines
that the waste “is not capable of posing
a substantial present or potential
hazard...”, based on consideration of eleven criteria.
40 CFR 261.11(a)(3)(i)
through
(xi)
list factors for consideration.
There are a number of editorial
problems with the USEPA text.
USEPA has modified the language of 40 CFR 260.22(a)(3),
by changing
“unless” to “and”, and by removing
a “not” from the third line as presented
in
the Board proposal,
so that the listing standard now reads:
“contains any of
the toxic constituents listed
in Appendix VIII
and,
...
the waste
is capable
of posing
.“
(PC 6,
55 Fed. Reg. 18726, May 4,
1990.
This change
is pending
in R9O-11, but will be made in this Docket instead.
Following 40 CFR 261.11(a)(3)(xi)
is
a hanging paragraph.
This
is
prohibited by the Code Division.
It is
impossible to cite to this paragraph
in
a simple manner, other than as
“the hanging paragraph following Section
261.11(a)(3)(xi)”.
It
is necessary to rewrite this into a format acceptable
to the Code Division.
The question
is whether this paragraph
is a portion
of
the introductory text to subsection
(a)(3),
a portion of subsection
(a)(3)(xi), or subsection (a)(4) with
its label missing.
The Board proposed
this
as
a subsection
(a)(4).
The Agency objected.
(PC 2)
The Agency
believes
that
this
merely
notes
that
the
substances
in
Appendix
VIII
(H)
are
there because they affect humans
(or other life forms)
in certain ways.
The
Agency suggested moving the
text up into the introduction
to subsection
(a)(3),
so
it appears
in parenthesis after
“Appendix H”.
The Board has
basically followed the Agency interpretation,
but will place the text in
a
“Board note” following the introduction
to subsection
(a)(3).
40 CFR 261.11(b) allows USEPA to list wastes based on the definition of
hazardous waste
in Section 1004(5)
of the RCRA Act.
The Board generally
avoids unnecessary references
to federal
statutes, especially ones which
function as incorporations by reference.
However,
in this case the Board
is
merely reciting the standards used by USEPA
in making a decision.
The
possibility that a person would have to actually find and apply this
definition
in a case before the Board
is remote.
(PC 2)
CONCLUSION
This Opinion supports the Board’s Order of this same day.
The text of
the rules
is set forth
in that Order.
The Board will allow 30 days for post—
adoption comments from the agencies
involved
in the authorization process
before filing the adopted rules.
I, Dorothy M.
Gunn, Clerk of
the Illinois Pollution Control Bgprd, hereby
certify that the above Opinion was adopted on thec’?/~day of
~
1991,
by
a vote of
~‘~‘
.
~?.
~
Dorothy
M.
~nn,
Clerk
Illinois
Poflution
Control
Board
119—192