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

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—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