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OVMI\U
July
3,
1990
I~THE
MATTER
OF:
R90-2
RCRA UPDATE,
USEPA
REGULATIONS
)
(Rulemaking)
(7-1-89 THROUGH
12-31-89)
ADOPTED RULES.
FINAL
ORDER.
OPINION
OF
THE
BOARD
(by 3. Anderson):
By
a separate Order,
pursuant to Section
7.2 and 22.4(a)
of
the
Environmental
Protection Act
(Act),
the Board
is
amending the RCRA hazardous
waste
regulations.
The
amendments
involve
35 Ill.
Adm.
Code 703,
721,
724,
725,
726 and
728.
The Board
will
not file
the adopted
rules
until
August
3,
1990,
to allo~v time for post-adoption review by
the agencies involved
in the
authorization process.
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 Comittee on
Administrative Rules
(JCAR).
The federal RCRA regulations are
found
at 40 CFR
260 through 270.
This rulemaking updates Illinois’ RCRA rules
to correspond
with federal amendments during the period July
1,
1989,
through December
31,
1989.
The Federal
Registers utilized are
as
follows:
54
Fed.
Reg.
33393
August
14,
1989
54 Fed. Reg.
36641
September
1,
1989
54 Fed.
Reg.
36970
September
6,
1989
54 Fed. Reg. 41407
October
6,
1989
54 Fed.
Reg.
50977
December
11, 1989
In addition, the Board
notes that USEPA corrected the September
6,
1989
Federal Register
at
55 Fed.
Reg.
23935, June 13,
1990.
Although this action
is outside the
scope
of this
rulemaking,
it includes responses
to
some of the
Board’s
requests
for
coirnent
in the Proposed Opinion,
and will
be referenced
bel
ow.
The USEPA amendments
include several
site—specific delistings.
As
provided
in
35
Ill.
Adm. Code 720.122(d),
the Board will
not
adopt
site—
specific delistings unless
and until
someone
files
a
proposal
showing why the
delisting
needs
to
be
adopted
as part of the Illinois program.
PUBLIC
COMMENT
The
Board
acknowledges
the
contributions
of
Morton
Dorothy
and
Anne
Manly
in
preparing the
Opinion
and
Order.
113—131
-2—
The Board adopted
a Proposed Opinion
and Order on April
12, 1990.
The
proposal appeared on May
4,
1990,
at
14 Ill. Reg.
6528.
The Board
has
received the followinq public
contnent:
PC
1
Big River Zinc Corporation
(Big River), May 21,
1990
PC
2
Administrative Code Division, June
1,
1990
PC
3
Big River, June
18,
1990
PC
4
USEPA,
June 22,
1990
PC
5
JCAR,
June
14 through June 22,
1990
PC
1 was actually addressed to Docket R89-1,
which was
closed
at the time
the
comment
was
received.
Because
the
comment
addressed
the
“mine
waste
exclusions”,
which
are also an issue
ij~
this Docket, the.~Bo.a~rd~included
the
comment
in this Docket.
PC
3 also addresses the mine waste exclusion.
In
PC
4,
USEPA provided coments which appear
to have resulted from
a
comprehensive review of the proposal.
However, USEPA found typographical
and
editing errors only.
The Code Division and JCAR also found
similar errors
(PC
2 and 5).
The
Proposed
Opinion
included
a
large
number
of
specific
requests
for
coninent.
USEPA indicated that
it
had submitted these
to headquarters,
and
would forward
its response under
a separate cover.
The Board may consider
this
if
received during the post-adoption coment period.
Otherwise,
the
Board may have to
consider any issues
in
a future Docket.
The Board notes with concern
the
lack of
any coment from the Illinois
Environmental
Protection
Agency
(Agency), which
has
the obligation to
administer
these
rules.
The
Board
must
assume
that,
where
it
requested
comment
on
a proposed solution
to
a
problem with the rules,
that
the solution
is
acceptable
to
the
Agency.
Furthermore,
where
the
rules
suggested
alternative solutions, the.Board must assume that either
alternative
is
acceptable
to
the
Agency.
EXTENSION
OF TIME ORDERS
Section
7.2(b)
of
the
Act
requires
that
identical
in
substance
rulemakings
be completed within
one year after the
first USEPA action
in
the
batch
period.
If the Board
is
unable
to
do
so
ft must enter an
“extension of
time” Order.
HISTORY
OF
RCRA,
UST
and
UJC
ADOPTION
The Illinois RCRA,
UST (Underground
Storage Tanks) and UIC (Underground
Injection
Control)
regulations,
together
with
more
stringent
State
regulations
particularly applicable to hazardous waste,
include the following:
702
RCRA
and
UIC
Permit.
Programs
703
RCRA Permit
Program
704
UIC
Permit
Program
113—132
—3—
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
Injection
Restrictions
Special
procedures
for
RCRA
cases
are
included
in
Parts
102,
103,
104
and
106.
Adoption of these regulations has proceeded
in several
stages.
The Phase
I
RCRA
regulations
were
adopted
and
amended
as
follows:
R8l-22
45
PCB 317, February
4,
1982,
6
III.
Reg.
4828,
April
23,
1982.
R82—l8
51
PCB 31,
January
13,
1983,
7 Ill. Reg.
2518,
March
4,
1983.
Illinois received
Phase
I interim authorization on
May
17,
1982
(47 Fed.
Reg. 21043).
The
UIC
regulations
were
adopted
as
follows:
R8l—32
47
PCB
93,
May
13,
1982;
October
15,
1982,
6
Ill.
Reg.
12479.
The
UIC regulations
were amended
in R82-18, which
is
referenced
above.
The
UIC
regulations
were
also amended
in R83-39:
R83-39
55 PCB 319, December
15,
1983;
7 Ill.
Reg.
17338,
December
20,
1983.
Illinois received UIC authorization February
1,
1984.
The Board
has
updated
the UIC
regulations:
R85—23
70
PCB
311, June 20,
1986;
10 Ill. Reg.
13274,
August
8,
1986.
R86—27
Dismissed at
77 ROB 234, April
16,
1987
(No USEPA amendments
through
12/31/86).
R87-29
January 21, 1~88; 12
Ill.
Reg. 6673,
April
8,
1988;
(1/1/87
through
6/30/87).
R88-2
June
16,
1988;
12
Ill.
Reg.
13700, August
26,
1983.
(7/1/87
through
12/31/87).
R88-17
December
15,
1983;
13
Ill.
Reg.
478,
effective
December
30,
1988.
(1/1/88 through 6/30/88).
113—133
-4-
R89-2
January
25,
1990;
14 Ill. Reg.
3059,
effective February 20,
1990
(7/1/88 through 12/31/88).
R89—11
May
24,
1990;
(1/1/89 through
11/30/89).
R9O—5
Dismissed
March
22,
1990
(12/1/89 through 12/31/89)
R9O-14
Next
UIC
Docket
(1/1/90
through
6/30/90)
The
Phase
II
RCRA
regulations
included
adoption
of
Parts
703 and
724,
which
established the permit program
and
final
TSD
standards.
The Phase II
regulations were adopted and amended
as follows:
R82-19
53 PCB 131, July
21.
1983,
7 Ii.
Reg.
13999,
October
28,
1983.
R83—24
55
PCB 31, December
15, 1983~~ 1. Reg.
.200, January
6,
1984.
On September
6,
1984,
the Third District ~ppellate
Court
upheld the
Board’s actions
in adopting R82-19 and R83-24.
(Commonwealth Edison
et
al.
v.
IPCB,
127 Ill. App.
3d
446;
468 NE
2d
1339 (Turd Dist. 1984).)
The Board updated the RCRA regulations
to correspond with USEPA
amendments
in
several
dockets.
The period
of the USEPA regulations covered
by
the
update
is
indicated
in
parentheses:
R84-9
64
PCB
427,
June
13,
1985;
9 Ill.
Reg.
11964, effective July 24,
1985.
(through
4/24/84)
R85—22
67
PCB
175,
479,
December
20,
1985 and January
9,
1986;
10 Ill.
Reg.
968,
effective
January
2,
1986.
(4/25/84
--
6/30/85)
R86—1
71
PCB
110, July
11,
1986;
10
Ill. Reg. 13998, August
22,
1986.
(7/1/85
-—
1/31/86)
R86—19
73
PCB
467,
October
23,
1986;
10
Ill.
Reg.
20630, December
12,
1986.
(2/1/86
——
3/31/86)
R86—28
75
PCB
306,
February
5,
1987;
an.d
76
PCB
195,
March
5,
1987;
11
Ill. Reg.
6017,
April
3,
1987.
Correction
at
77
PCB
235,
April
16,
1987;
11
Ill. Reg.
8684,
May
1,
1987.
(4/1/86
——
6/30/86)
R86—46
July
16,
1987; August
14,
1987;
11
Ill.
Reg.
13435.
(7/1/86
——
9/30/86)
R87—5
October
15,
1987;
11
Ill.
Reg.
19280,
November
30,
1987.
(10/1/86
——
12/31/86)
R87—26
December
3,
1987;
12
Ill.
Reg.
2450, January
29,
1988.
(1/1/87
--
6/30/87)
R87—32
Correction
to
R86—1;
September
4,
1987;
11
Ill.
Reg.
16698,
October
16, 1987.
113— 134
-5-
R87—39
Adopted June
14,
1988;
12
Ill.
Rey.
12999,
August
12,
1988.
(7/1/87
--
12/31/87)
R88—16
November
17,
1988;
13
ill.
Reg.
447,
effective
December
28,
1988
(1/1/88
——
7/31/88)
R89-1
September
13,
October
18
and
November
16,
1989;
13
Ill.
Reg.
18278,
effective
November
13,
1989
(8/1/88
-—
12/31/88)
R89-9
March
8,
1990;
14
Ill.
Reg.
6225,
effective
April
16,
1990
(1/1/89
through
6/30/89)
R9D—2
This
Docket
(7/1/89
through
12/31/89)
R90-1O
Next
RCRA
Docket,
Proposed
May
24,
1990
(1/1/90
th’cugh
3/31/90)
R90-11
Docket After Next RCRA Docket
(4/1/90 through 6/30/90)
Illinois received
final
authorization for
the RCRA program effective
January
31,
1986.
The Underground Storage Tank rules were adopted
in R86—1 and R86-28,
which were RCRA update Dockets discussed
above.
They
are currently being
handled
in
their own IJockets:
R88-27
April
27,
1989;
13
Ill.
Reg.
9519,
effective June
12,
1989
(Technical
standards,
September 23,
1989)
R89—4
July 27,
1989;
13 Ill. Reg.
15010, effective September 12, 1989
(Financial
assurance, October
26,
1989)
R89—1O
February
22,
1990;
14 Ill.
Reg.
5797,
effective April
10, 1990
(Initial
update,
through
6/30/89)
R89—19
April
26,
1990;
14
111.
Reg.
9454,
effective
June
4,
1990
(UST
State Fund)
R90—3
June
7,
1990;
(7/1/89
-
12/31/89)
R9O-12
Next UST Docket
(1/1/90
—
6/30/90)
The Board added
to
the federal
listings of hazardous waste
by
listing
dioxins pursuant to Section
22.4(d)
of the Act:
R84-34
61
ROB 247, November
21,
1984;
8 Ill.
Reg.
24562, effective
December
11,
1984.
This
was repealed by R35—22,
which included adoption
of USEPA’s dioxin
listings.
Section 22.4(d) was
repealed by S.B.
1834.
The Board has adopted
USEPA delistings
at
the request
of Amoco
and
Envi rite:
R85—2
69 PCB 314,
April
24, 1986;
10 Ill. Reg.
8112,
effective
rlay
2,
113—135
—6-
1986.
R87-30
June 30,
1988;
12 Ill. Reg. 12070, effective July
12,
1988.
The Board
has procedures
to
be followed
in cases
before
it
involving the
RCRA regulations:
R84-lO
62 ROB 87,
349, December 20,
1984 and January
10,
1985;
9 Ill.
Reg.
1383,
effective January
16,
1985.
The Board
also adopted
in Part
106 special
procedures
to
be followed
in
certain determinations.
Part 106 was adopted
in R85—22 and amended
in R86—46,
listed
above.
The Board
has also adopted
requirements limiting and restricting the
landfilling
of liquid
hazardous waste,
hazardous wastes containing halogenated
compounds and hazardous wastes generally:
R81-25
60 PCB
381, October
25,
1984;
8 111. Reg.
24124, December
4,
1984;
R83-28
February 26,
1986;
10 111. Reg. 4875, effective March
7,
1986.
R86-9
Emergency regulations adopted
at
73 PCB 427, October
23,
1986;
10 Ill.
Reg.
19787, effective November
5,
1986.
The Board’s action
in adopting emergency regulations
in R86-9 was
reversed
(CBE and IEPA
v.
IPCB
et al., First District, January
26,
1987).
Economic Impact
hearings have recently been completed.
AGENCY
OR
BOARD ACTION?
Sections 724.213 and 725.213, which are discussed
below,
include
questions as
to whether decisions, ought
to
be made by the Board
or Agency.
The following
is
a general discussion
of these questions.
The Board
has
almost always
changed
“Regional Administrator”
to
“Agency”.
However,
in some situations
“Regional Administrator”
has been
changed
to “USEPA”
or
“Board”.
Section 7.2(a)(5) of the Act requires
the
Board
to
specify which decisions USEPA will
retain.
In addition, the Board
is
to
specify which State agency
is
to make decisions,
based
on the
general
division of
functions within the Act
and other Illinois statutes.
In situations
in which the Board
has determined that USEPA will
retain
decision-making authority, the Board
has replaced “Regional Administrator”
with
“USEPA”, so
as
to
avoid specifying which
office within USEPA
is
to make
a
deci Si on.
The regulations will
eventually
require
a RORA permit for each HWM
facility.
However, many “existing units” are
still
in “interim status”.
Decisions involving interim status
are often more ambiguous as
to whether they
are permit actions.
In
a few instances in identical
in
substance rules
decisions are
not
113—136
—7—
approp~iatefor
Agency
action
pursuant
to
a
permit
application.
Among
the
considerations
in
determining
the
general
division
of
authority
between
the
Agency and the Board
are the following:
1.
Is
the person making the decision applying
a Board regulation,
or
taking
action contrary
to
(“waiving”)
a Board
regulation?
It
generally
takes
some
form
of
Board
action
to
“waive”
a
Board
regulation.
For
example,
the
Agency
clearly
has
authority
to
apply
a
regulation
which
says
“If
A,
do
X;
if
not
A,
do
Y”.
On
the
other
hand,
regulations
which
say
“If
not
A,
the
state
shall
waive
X”
are
more
troubling.
2.
Is
there
a clear standard
for
action such that the Board
can
give
mea~ingful review
to
an
Agency
decision?
3.
Is
there
a right
to
appeal?
Agency actions
are generally appealable
to
the
Board.
4.
Does this action
concern
a person who
is
required to have
a permit
anyway?
If
so there
is
a pre-existing
permit relationship which
can
easily be used as
a
context for Agency decision.
If the action
concerns
a
person who does
not have
a
permit,
it
is more difficult to
place the decision
into a procedural
context which would
be within
the Agency’s jurisdiction.
5.
Does
the action
result
in
exemption from the permit
requirement
itself?
If
so,
Board
action
is
generally required.
6.
Does
the decision
amount
to
“determining, defining
or
implementing
environmental
control
standards” within
the meaning of Section 5(b)
of the Act?
If
so,
it must be made
by the Board.
Once
it
is determined that
a decision must be made by the Board,
rathe”
than
the Agency,
it
is necessary to determine what procedural
context
is
best
suited for that decision.
There are
four common
classes
of Board decision:
variance, adjusted standard, site specific rulemaking and enforcement.
The
first three are methods
by which
a
regulation can
be temporarily postponed
(variance)
or adjusted to meet specific situations
(adjusted standard or
site
specific rulemaking).
Note that
there
are differences
in the nomenclature for
these decisions between the USEPA and Board
regulations.
These differences
have caused past misunderstandings with USEPA.
A variance
is
initiated by the operator filing
a petition pursuant to
Title
IX of the Act
and
35
111. Adm. Code
104.
The Agency
files
a
recommendation
as
to what action
the Board
should take.
The Board may
conducts a public hearing,
and must do so
if
there
is
an
objection to th~
van ance.
Board
variances
are:
temporary;
based
on a”bitrary or unreasonable
hardship;
and,
require
a plan for eventual
compliance with
the
general
regulation.
To the extent
a USEPA decision
involves these
factors,
a Board
variance
is
an appropriate mechanism.
A variance
is
not
an
appropriate mechanism for
a decision which
is
not
113—137
-8-.
based
on
arbitrary or unreasonable hardship, or which grants permanent relief
without
eventual
compliance.
To grant permanent relief, the Board needs
to
grant
a
site specific regulation or
an adjusted standard pursuant
to Sections
27
or 28.1 of the Act, and
35 111.
Adm. Code 102
or
106.
DETAILED DISCUSSION
The Federal Registers involved
in this rulemaking include the following:
August
14,
1989
Receipt
of
non-haza”dous waste
by units after
final
receipt
of hazardous waste
September
1,
1989
Mining waste exclusion
September
6,
1989
Corrections
to first third
bans
October
6,
1989
Listing of methyl
bromide wastes
December
11,
1989
Listing
of aliphatic chlorination wastes
In addition,
as noted
above,
USEPA corrected the September
6,
1989,
Federal Register
at
55 Fed. Reg.
23935, June
13,
1990.
This
is interestingly
titled
as
“the corrections
to the corrections to the first
third”.
The Board
will
discuss one of these corrections
below
in
connection with Section
728. 133.
The
rules
have been edited to establish
a uniform usage with respect
to
“shall”,
“must”,
“will”
and “may”.
“Shall”
is
used
when
the
subject
of
a
sentence has to
do
something.
“Must”
is
used when someone
has
to do
something,
but that someone
is
not the subject
of the sentence.
“Will”
is
used when
the Board obligates itself
to
do
something.
“May”
is used when
a
provision is optional.
Some of the USEPA rules
appear to say something other
than what
was intended.
Others
do not read
correctly when
“Board” or “Agency”
is
substituted
into the federal
rule.
The Board does
not
intend
to make any
substantive
change
in
the
rules
by way of these
edits.
The text of the
proposal made frequent references
to the
1988 Supplement
to the Illinois
revised Statutes.
These
have been updated
to the
1989
Edition, which
is
now available.
PART 703:
RCRA PERMITS
Parts
702,
703
and
704 were originally
based
on the consolidated permit
rules
in 40 CFR
122.
These have now been deconsolidated to
40 CFR
270 and
144.
Some of the Sections still
show the old Part
122
“Board Notes”.
Because
these
Parts
lack the simple relationship
to the current organization
of the
federal
rules,
it
is
necessary to
use
a
cross reference table.
An updated
version
of the table appears
at the end
of the R89—9 Opinion.
Section 7O3.Appendix A
This Section
is
drawn from 40 CFR 270.42, Appendix
I,
which was amended
at
54 Fed. Reg.
33393,
August
14,
1989.
The amendments add item D.i.f.
to
the
list of permit modifications.
As
is
discussed below,
a hazardous waste
facility may
accept non-hazardous waste after closure under certain
conditions.
This amendment allows the permit
to
be modified
as
a Class 2
permit modification.
113—138
-9-
Following the public comment
period
in this Docket, the
Board learned
of
an
error
in
Appendix
A as amended
in
R89—9.
The
amendment was
drawn
from
54
Fed.
Reg.
9607,
March
7,
1989.
The
amendment
“added”
items
F.4.a
and
b,
but
did
not
specifically
say
to
delete
existing F.4.
The Board
therefore retained
old
F.4,
but
renumbered
it
as
F.5.
The
1989
Edition
of
the
CFR
is
now
available,
and
does
not
include
item
F.5.
Evidently
USEPA
meant
to
“revise”
F.4,
rather
than
add
a
new
F.4.
On
careful
examination,
it
is
apparent
that
the subject matter of old F.4
is
addressed
in
the
new
language.
The
Board
has
therefore
deleted
F.5.
PART
72:
IDENTIFICATION
AND
LISTING
OF
HAZARDOUS
WASTE
Section 721.103
This Section
is drawn from 40 CFR
261.3, which was amended
at
54 Fed.
Reg.
36641,
September
1,
1989.
These
amendments
concern
the
mining
waste
exclusion
from
the
definition
of
hazardous
waste.
This
is
related
to
the
amendments
related
to listing KO66
in R89-1,
and the
issues
raised
in that
Docket
by
Big
River
Zinc.
Section
721.104, discussed
below, generally excludes from the definition
of
hazardous waste any wastes
“from the extraction,
beneficiation or
processing
of ores or minerals”.
The amendments
to this Section create
rules
concerning mixtures
of excluded mine waste with hzardous waste.
Under certain
circumstances mixtures become hazardous wastes
(are
“unexcl uded”)
pursuant
to
this Section.
There are some minor problems with
the text of these
amendments.
The
text
of
40 CFR 261.3(a)(2)(i)
and
(iii),
which correspond
to Section
721.1O3(a)(2)(A)
and
(C),
is
as follows:
A solid waste
...
is
a
hazardous waste
if
it
is not excluded
...
and...
I)
It exhibits any of the characteristics
of hazardous waste
identified
in Subpart
C except that
any mixture of
a waste
from
the
extraction,
beneficiation
and
processing
of
ores
and minerals
excluded under §261.4(b)(7)
and any
other
solid waste
exhibiting
a characteristic
of hazardous waste
under Subpart
C
of this part only
if
it
exhibits
a
characteristic that would
not have been exhibited by the
excluded waste alone
if such mixture had
not occurred or
if
it continues
to exhibit any of the characteristics
exhibited by the non—excluded wastes prior to mixture.
Further, for the purposes of applying the Extraction
Procedure Toxicity characteristic to
such mixtures, the
mixture
is
also
a hazardous waste
if
it exceeds
the maximuu~
concentration for any contaminant listed
in table
I
to
261.24 that would not
have been exceeded by the excluded
waste alone
if the mixture
had
not occurred or
if
it
continues to exceed
the maximum concentration for any
contaminant exceeded
by the nonexempt waste prior
to
mixture.
iii)
It
is
a mixture of
a solid waste and
a
hazardous waste
that
113—139
-lo-
is
listed
in
Subpart
D
of
this
part
solely
because
it
exhibits one or more of the characteristics
of hazardous
waste identified
in Subpart
C, unless the resultant mixture
no longer exhibits any characteristic of hazardous waste
identified
in
Subpart
C
of
this
part
or
unless
the
solid
waste
is
excluded
from
regulation under §261.4(b)(7) and
the resultant mixture
no
longer exhibits
any characteristic
of hazardous waste
identified
in Subpart
C of this part for
which the hazardous waste listed
in Subpart D
of this part
was
listed.
40 CFR 261.3(a)(2)(i)
speaks
of wastes “from the extraction,
beneficiation
and processing of ores and minerals”.
Since extraction,
beneficiation
and processing are sequential
processes,
it
is unlikely that
a
single wastewould come from all
three.
Likewise, there are ores and there
are minerals,
but relatively few “ores
and minerals”.
The USEPA rule
is
subject
to the interpretation that the un-exclusion applies only to
a waste
which comes from
all
three processes
on something which
is
both an
ore and
mineral.
The Board
has changed the
and’s
to or’s to avoid this
interpretation.
In the Administrative Code
“A
or B”
means
“A or
B
or both”.
40 CFR 261.3(a)(2)(i) also references “table
I
in §261.24”.
This
is
Table
I
in Section 721.124.
This form of labeling of tables
is
no
longer
acceptable to the Code Division.
However,
since
“Table
I”
is the
only table
in Section
721.124, the Board has shortened the reference to “Section
721.124”.
This avoids making
a
reference which would cause the Code Division
to ask the Board
to amend Section 721.124.
The “except”
clause
added to 40 CFR 261.3(a)(2)(i) does
not have a
verb.
The Board has added
“is
a
hazardous waste”,
and to make the clause
into
a
separate sentence.
The USEPA language has an almost complete lack
of punctuation.
One
should
not
be too quick
to criticize this,
since
it
is
easier to deal with
than many USEPA rules which have incorrect punctuation.
It
is much easier to
insert comas, etc., without having
to first
remove incorrect punctuation.
However, these provisions
have many complex conditions.
Without punctuation,
it
is not clear how the conditions are to
be grouped.
The Board
has inserted
punctuation,
so that the adopted
rule reads
as
follows:
A solid waste
...
is
a hazardous waste
if
it
is
not excluded
...
and...
A)
It exhibits any
of the characteristics
of
hazardous waste
identified
in Subpart
C.
Except that
any mixture
of
a
waste
from the extraction, beneficiation
or processing of
ores
or minerals excluded under Section 721.104(b)(7) and
any other solid waste
exhibiting
a characteristic
of
hazardous waste
under Subpart
C
is
a hazardous waste
only:
if
it exhibits
a characteristic that would
not have
been exhibited by the excluded waste alone
if
such mixture
had not occurred;
or,
if
it continues
to exhibit
any of
the characteristics exhibited
by the non—excluded wastes
prior to mixture.
Further, for the purposes of applying
the EP toxicity
(extraction procedure toxicity)
113—140
—11—
characteristic to
such mixtures, the mixture
is
also
a
k
~
~
•
4~ 4*
o
~
~
4,,,~-,,
~
,U~U
U~U~
Y1U~,
.
~
LA~~IU~
~
WUA
IhIU~I
~
U~
for
any
contaminant
listed
in
Section
721.124
that
would
not
have
been
exceeded
by
the
excluded waste alone
if
the
mixture
had
not
occurred;
or,
if
it
continues
to
exceed
the
maximum
concentration
for
any
contaminant
exceeded
by
the nonexempt waste prior
to mixture...
C)
It
is
a
mixture
of
a
solid
waste
and
a
hazardous
waste
that
is
listed
in
Subpart
D
solely
because
it
exhibits
one
or
more
of
the
characteristics
of
hazardous
waste
identified
in
Subpart
C,
unless
the
resultant
mnixture
no
longer
exhibits
any
characte—istic
of
hazardous
waste
identified
in
Subpart
C,
or
unless
the
solid
waste:
is
excluded
from
regulation
under
Section
721.1O4~b)(7);
and,
the
resultant
mixture
no
longer
exhibits
any
characteristic
of
hazardous
waste
identified
in Subpart
C
for
which
the
hazardous
waste
listed
in
Subpart
D
was
listed.
This
is
still
only marginally comprehendable.
The following
is
an
attempt
at
restating these provisions
in
an
understandable
way:
Definitions
“Characteristic waste” means
a solid waste exhibiting
a
characteristic of
hazardous waste
under Subpart
C.
“Listed characteristic waste” means
a hazardous waste
which
is
listed
in
Subpart D solely because
it
is
a characteristic waste.
“Excluded mine waste” means
a waste from the extraction,
beneficiation
or
processing
of
ores
or
minerals
excluded
under
Section 721.1O4(b)(7).
Section
721.103
A solid waste
...
is
a hazardous waste
if
it
is
not excluded
...
and...
A)
It
is
a
characteristic waste.
i)
However, any mixture
of
an excluded mine waste
and
a
characteristic waste
is
a hazardous waste
only if
it
exhibits
a characteristic which:
The
excluded
mine
waste
did
not
exhibit;
or
The characteristic waste did exhibit.
ii)
Further,
for
purposes
of
applying
the
EP
toxicity
characteristic
of
Section
721.124
to
such
mixtures,
the
mixture
is
a hazardous waste
if
it exceeds the
maximum concentration for any contaminant which:
The excluded mine waste did
not
exceed;
or
113—14 1
—12-
The
characteristic
waste
did
exceed.
Or,
C)
It
is
a
mixture
of
a solid waste
and
a
listed
characteristic waste,
unless the
solid waste:
i)
Is
an excluded mine waste;
and
ii)
The resultant mixture
no longer exhibits
any
characteristic for which the
listed characteristic
waste was
listed.
The Board
has not rewritten the un—exclusion
in this way,
but solicited
comment
as
to whether the
re—write
is ~rrect. If
t
isn’t,
then the changes
to punctuation discussed above are pr~.ably wrong.
The Board
received no
response.
Section 721.104
This Section
is drawn
from 40 CFR
261.4, which was amended
at
54 Fed.
Reg. 36641, September
1,
1989.
These amendments
also concern the mining waste
exclusion from the definition
of hazardous waste.
A portion of the
text of
40 CFR 261.4(b)(7),
wiich corresponds with
Section
721.104
(b)(7)
is set out
as
follows:
The following
...
are not hazardous wastes:
7)
Solid waste from the extraction, heneficiation —a~—or
processing of ores —a~d—orminerals
(including
coal), including
phosphate
rock and overburden from the mining of uranium ore.
For purposes of this subsection, beneficiation
of ores
and
minerals
is
restricted
to the following activities:
crushing,
grinding, washing, dissolution,
crystallization,
filtration,
sorting,
sizing,
drying,
sintering,
peiletizing,
bniquetting,
calcining to
remove water
or carbon dioxide,
roasting in
preparation
for
leachThg
(except
where
the
roasting/leaching
sequence produces
a
f
nal
or
intermediate product that does
not
undergo further benef ciation
or
processing),
gravity
concentration, magnetic separation,
electrostatic separation,
floatation,
ion exchange, solvent
extraction, electrowinning,
precipitation, amalgamation,
and
heap,
dump, vat
tank and in
situ leachinQ.
—
.
,
,
,
-
________________For the purposes of this subsection,
solid waste
from
the
processing
of
ores
-a~-orminerals —~ees~et4Re1H~e—
includes
only:
G~ MteF J~e3@
~99@~s3.~i?~e~
t~eat~e~t
e~p~eeess
wastewate~e~ae4~p~~t~.ewdew~~
~p~~apy
flA?
p~ethie~+ept
—
~j
The following
solid wastes
from the processing of ores or
minerals, which are retained within this exclusion:
yj
Slag from elemental
phosphorus production;
and
113—142
—13-
n\
rL_
c11~
~
..
i..~
.c
~L
I II~
I
U
I
IUW
I
~
~O
I
IU
wasL~
I
UflI
LIIe
pruce~
I
~
UI
U
~
U:
minerals, which
are conditionally retained within this
exclusion, pending collection and evaluation
of additional
data:
xx)
Slag from primary zinc smelting.
40 CFR 261.4(b)(7)
refers
to
“calcining
to
remove water
and/or carbon
dioxide”.
As
used
in
the Administrative Code,
“and/or” means
the same thing
as
“or”.
In
R89—1
the
Board
adopted
USEPA
rules
which
added
listing
K066,
and
which added Section 721.104(b)(7)(C),
which
is shown
struck through
above.
This provision un—excluded certain pollution control
wastes
from primary zinc
production.
In
response to
comments from Big River Zinc,
the Board added
the
June 30,
1990,
delayed effective date to
the un-exclusion.
The result
of
this
is
that the pollution control
wastes will become
hazardous wastes
in Illinois
on June 30,
1990.
When
this
rulemaking
is
filed,
the un-exclusion will
be
removed
from
the
rules.
However,
the
format
of
the
rule
has
been
reversed,
so
that
it
is now listing exclusions,
instead
of un—exclusions.
The effect
of
this is that the pollution control waste will
now be un—excluded
in silence.
USEPA has clearly indicated
this intent
in
the preamble.
(54
Fed. Reg.
36631).
Note also that these wastes remain listed
as KO66.
Also,
a
previously unmentioned zinc production waste, slag from primary zinc smelting,
is
now expressly excluded from the definition
of
hazardous waste.
Big River filed
two comments
in
this matter
(PC
1
and 3).
Big River
is
conducting
process changes
so
as
to avoid producing hazardous waste under the
new rules,
so that
it will
not have to either
become
a TSD facility,
or ship
waste off
site to
a RCRA permitted facility.
Big River
has
asked the Board
to
delay the effective date
of the rules
derived from the September
1,
1989,
Federal
Register
to July
1,
1991.
The Board
cannot discern what provisions
in the
rules
need
to
be delayed
to grant the
relief
requested.
As
the Board understands
it, KO66
and
the
“unexclusion” brought certain wastestreamns
into the hazardous waste
definition.
The K066 listing was unaffected
by
the September
1 action,
and
the “unexclusion” was repealed.
As was previously determined, the KO66
listing must be effective by July
1,
1990.
Also,
delaying the
repeal
of the
“unexclusion” would make certain that Big River’s waste was hazardous after
June 30,
1990.
Another aspect
of the September
1
action
is the new exclusion for zinc
smelting slag.
Delaying this would make zinc smelting slag
a
hazardous waste
in
Illinois, even though
it
is
excluded
at the
federal
level.
The
final
aspect
of
the USEPA action
is
the generic definition of
“beneficiation”.
There are
several
problems with delaying the effective date
of this.
First,
Big River
has
not specified what portions of
the definition
cause
it
to
fall
into the hazardous waste
classification.
Second, this
is
a
generic provision which applies
to
other industries.
It
is possible
that
there are others who are excluded under this general
definition,
and want the
definition
to
be
adopted
as
soon
as
possible.
It
would
be
unfair
to
them
to
113—143
-14-
delay
the change.
Finally,
the USEPA action
is adding
a definition
of
a term
which
is
presently undefined.
Even if the Board
delayed the effective date of
the definition,
it would
be the only definition
around.
The Agency would
be
justified
in construing “beneficiation”
to mean exactly this,
regardless
of
any delay
in the effective date.
Mechanistically,
there
is
no way in
this Docket
to grant Big River
a
delay.
To add
a
specific provision for Big River,
the Board would
need
additional
information as
to precisely what wastes are to
be delayed.
Moreover,
this would arguably be outside the
scope
of the
“identical
in
substance” mandate, as defined
in Section 7.2 of the Act.
In PC
3 Big River
is
really asking
for
a
delay
in
the effective date of
a
regulation
in order to allow
it
to make process
changes to come into
compliance.
This could
be better handled
by way of
a
variance pursuant to
Title
IX
of the Act
and 35
Ill. Adm. Code
104.
Indeed,
PC
3
is structured
very much like
a variance
petition.
The Board
has
two questions which
it would
like to
have answered
by USEPA
during the post—adoption comment
period.
First, would
it
be
consistent with
federal
law to
grant
a generator a temporary variance from
a new listing,
conditioned
on
a compliance schedule leading
to process changes which
eliminated the production
of hazardous waste?
Second,
what form should the
variance take?
For waste managed on—site,
could the Board
grant
a variance
from the requirement
to
file
a Part A application
(Section 703.150), and the
management
standards of Part
725?
For waste
shipped off-site, could the Board
grant
a generator
a variance from the requirements
to determine whether
a
waste
is hazardous
and
initiate
a manifest?
(Sections
722.111
and 123)
Would
such
a
variance allow an off-site facility to manage the newly listed waste
as
non-hazardous?
Section
721.131
This Section
is
drawn from 40 CFR
261.31, which was amended
at
54 Fed.
Reg.
50977, December
1.,
1989.
These amendments
concern the listing of wastes
from free radical
chlorination
of certain aliphatic hydrocarbons.
This takes
the form of
an amendment to F024,
and addition of
a
new listing, F025.
Section 721.132
This Section
is drawn from 40 CFR
261.32, which was amended
at
54 Fed.
Reg. 41407, October
6,
1989.
These amendments concern the listing of wastes
from production
of methyl
bromide,
a pesticide.
This takes
the
form of
addition of
listing K131 and K132.
Section 721.Appendix C
This Section
is drawn
from 40 CFR 261, Appendix
III, which was amended
at
54 Fed. Reg. 41407, October
6,
1989.
These amendments concern
the listing
of
wastes from production
of methyl
bromide,
a pesticide.
The incorporation by
reference has
been updated
to include the
analytical methods associated with
these
listings.
Section 721.Aooendix G
113—144
-15-
rL~
(‘~—‘-.~--—
~—
~,__...
~
iIr~ r’rr)
‘)Cl
~
~-14~,
IIT~
.I~,4
I-,
..-
~
.-I
4-
I II
LS
Jt~LLI UI~
I
~
U~c1V~I~
UIII
~tu
t..r,\
~UL,
t-~p~enu
~A
~i
,
~
~C’~ y.d~
u,,,en~jeua’.
54
Fed.
Reg.
41407,
October
6,
1989,
and
at
54
Fed.
Reg.
50977,
December
11,
1989.
These amendments
concern the listing
of wastes
from production
of
methyl
bromide
and
the listing
of wastes
from free
radical
chlorination
of
certain aliphatic hydrocarbons.
Appendix G
has
been updated
to list
the
hazardous constituents for which
these are listed.
Section
721.Appendix
H
This Section
is drawn
from 40 CFR
261, Appendix VIII,
which
was
amended
at
54 Fed.
Reg.
50978,
December
11,
1989.
These amendments concern
the
listing
of wastes
from free radical
chlorination
of
certain aliphatic
hydrocarbons.
This adds
a new hazardous constituent,
allyl
chloride, which
is
produced by this type of chlorination.
PART
724:
STANDARDS FOR PERMITTED FACILITIES
The following amendments are drawn
from
54
Fed.
Reg.
33393,
August
14,
1989.
These amendments
allow hazardous waste management
units which have
received the
final
volume of hazardous waste to receive non—hazardous wastes
under certain conditions.
Section 724.113
This Section
is drawn
from 40 CFR
264.13, which was amended
at
54 Fed.
Reg. 33393, August
14, 1989.
This Section requires the owner
or operator to
include,
in the general waste analysis plan,
any non—hazardous wastes
to
be
received after the
final
volume of
hazardous waste.
There
is
an ambiguity
in the amendment to
40 CFR 264.13(a).
This
ambiguity arises because
of the
format
of the Federal
Register.
Rather than
print the entire text of the affected Section
in
a strike and underline
format, the Federal Register presents
a partial
text, with instructions.
In
‘this
case,
instruction ~2 says Section 264.13
“is
amended
by
revising
paragraphs
(a)(1),
...
to
read as
follows:”
However,
the revisions
relate
only to
the first
sentence of paragraph
(a)(1).
The Federal Register appears
to
have dropped the second
sentence.
The problem
is that the dropped sentence
is the general
standard
for what
the waste
analysis plan should contain:
“all
the information which must
be
known
to treat, store
or dispose of the waste
in accordance with the
requirements...”
It
seemed
unusual
to
repeal
such
a
basic standard
in
a
rulemaking which
is
not directly concerned with waste analysis.
The Board
proposed
to repeal
this language, but solicited comment which was not
answered.
The Board has decided
to leave the
general
standard
in.
The August
14,
1989,
Federal Register was concerned with delay
of the post-closure care
period for certain
disposal
facilities.
The amendments
to the waste analysis
plan requirements were tangential
to
this.
Any change
to the
basic standard
for the plans would
appear to
be beyond the scope
of the August
14 Federal
Register.
Moreover,
the
Board
cannot
find
any
mention
of
the
general
standard
in the Preamble, beginning at
54 Fed. Reg.
33376.
It
is unlikely that USEPA
113—145
—16—
would
have dropped
a basic standard without mentioning
it.
Section 724.212
This Section
is drawn from 40 CFR 264.112, which was amended
at
54 Fed.
Reg.
33393,
August
14,
1989.
This Section
governs closure plans.
40 CFR
264.112(d)(2)(ii) allows USEPA to extend
the time at which
notification
of
closure must
be given
if the owner or
operator “can demonstrate” the capacity
to
receive additional
nonhazardous wastes.
Consistent with the other
provisions
of this Section,
the Board
has
edited Section 724.212(d)(2)(B)
to
allow the Agency to extend
the time only if the owner or operator
“demonstrates”
the additional
capacity.
The USEPA language
is
subject
to the
interpretation that
an operator who believes he
“can demonstrate” additional
capacity need
not notify unless USEPA challenges
him.
The Board
language
makes
it
clear that
an
up-front demonstration
is
required.
The Board
has corrected
a typographical
error
in
the proposal
in Section
724.212(d)(2)(B).
(Deletion
of “of” from “The owner or operator
of
demonstrates...”)
(PC
5)
The rules
generally refer
to the
“owner or operator”.
The
intent
of this
is that either one
can discharge the obligations under
the rules,
but that
both are
liable for a failure.
Specifically, either the
“owner or operator”
can make the demonstration contemplated
by this Section,
and the benefit falls
on both.
However,
40 CFR 264.l12(d)(2)(ii)
provides:
“If the owner
or
operator can demonstrate that
...
and
he
has taken
...
all
steps
necessary
to
prevent threats to human
health
...“
This seems
to contemplate,
for example,
that an operator could gain the extension, which would then apply
to the
owner,
even though the owner failed
to protect human health.
The Board
has
corrected this apparent error by
rendering “he”
as “the owner
and operator”.
Section 724.213
This Section
is
drawn from 40 CFR 264.113, which was amended
at
54 Fed.
Reg.
33393, August
14,
1989.
This Section
governs the time allowed for
closure.
Subsections
(d)
and
(e) have been added
to
specify the
conditions
under which
a unit may receive non-hazardous waste after
final
receipt of
hazardous waste.
The introductory language to this Section, as
previously adopted
by the
Board,
does
not
read exactly like the USEPA language.
The USEPA Section
is
worded
in
a manner which could
be read
as
giving operators automatic
extensions of closure deadlines.
The
Board
reworded. these provisions
to make
it
clear that these extensions must
be approved in advance
as
permit
conditions.
(R82—19, Opinion
of July
26,
1983,
p.
45;
53 ROB
131,
175).
40 CFR 264.113(d)
and
(e) allow certain units which
have stopped
receiving hazardous waste to
remain open for non-hazardous waste.
Subsection
(d) applies
to
landfills, surface
impoundments and
land treatment
units which
the HSWA double
liner and leachate collection requirements.
Subsection
(e)
applies
to surface
impoundments
which, although they don’t meet the HSWA
requirements, have removed
all
hazardous liguids,
and
as much sludge
as
possible.
Although hazardous wastes will
have been removed,
and the
impoundment will
no
longer receive hazardous waste,
the unit will
still
be
a
113—146
—17—
“HWM unit”,
and will eventually have to close
as
such.
There
are
a several major
problems
in translating
40 CFR
264.113(e)
into
a State rule.
REFERENCES
TO RCRA ACT
40 CFR 264.113(e)
includes
a number of
specific references
to liner
and
leachate collection requirements
contained
in the RCRA Act.
The Board wishes
to avoid unnecessary
references
to
federal
statutes,
since
the APA
is unclear
as
to whether these are incorporations by
reference.
The Board
believes that
these requirements
are reflected
in
regulations which the Board
has previously
adopted,
and has referenced those
regulations
instead.
However, the Board
solicited comment, but received
no response.
In
this case the references are serving the function of
an incorporation
by
reference,
in
that they rely on
the
federal
statute
to set design
and
permitting standards.
Whether the APA applies
or not, unnecessary references
to
federal
statutes are confusing to the public.
Consider what would happen
if Joe
at Joe’s Garage tried
to
comply with
a State rule referencing
“Section
3019
of RCRA”.
First,
he would
have to obtain
a
copy of the federal
statute.
This would probably by
the USC.
Then
he would ‘have
to learn
to
convert the RCRA number
to the USC number.
He would have
no way of
of knowing
whether the requirement
had been implemented
through regulations,
nor would
there
be
any systematic way to
find the CFR provision which implemented the
requirement.
If Joe
lucked out and found
40 CFR
270.10(j),
he would
still
have to
find the State regulation
implementing that Section.
In addition
to
the due process questions this would raise,
it
is not efficient to write
regulations
in
a manner
such that persons who wish
to comply could
not
do
so.
The USEPA rule references two of these
as
“42 USC
3004 and 3005”.
However, these numbers are to the RCRA Act itself.
The USC citation
should
be
to
42
USC 6901 et
seq.
Section 3004(o)
of RCRA includes mandatory design standards
for new
surface impoundments and landfills.
These were adopted
nearly verbatim
in
R86—1
as
35 Ill. Adm. Code 724.321(c),
(d)
and
(e)
and 724.401(c),
(d)
and
(e).
Section 3004(o)(1)(B) requires
incinerators
to
comply with previous
regulatory design standards.
These are
in
35
Ill.
Adm. Code 724.443.
Since
this Section applies
only
to surface
impoundments
at
permitted facilities, the
Board Section need cite only Section
724.321(c)
-
(e).
Section
3005(j)
of RCRA applies only to interim
status facilities.
Since
this Section applies
only to
permitted facilities, the reference
is
unnecessary.
However,
it will
be discussed
below
in connection with Part 725.
Section 3019 of RCRA requires
owners
or operators
to submit exposure
information
and health assessments.
This requirement was implemented
in
40
CFR 270.10(j)
and 35 Ill. Adm. Code 703.186.
The existing impoundments
subject
to
40 CFR 264.113(e) were required to
retrofit
or close
under RCRA Section 3004
or 3005.
Subsection
(e)
is
a type
of “extension
by rule” Section which allows these units
to
remain open
in
limited operation following substantial
removal
of hazardous wastes.
113--147
-18-
SHOULD BOARD
OR AGENCY HANDLE
‘MINIPROCEDURES’
40
FR
264.113(e)
poses
problems
in translation
into
a State procedural
context.
Section 7.2(a)(5)
of the Act and the factors considered by the Board
in determining which agency should make decisions
are discussed in general
above.
USEPA evidently allows
a unit to
remain open to
receive non—hazardous
waste based
on the adequacy of the
removal
plan and contingent corrective
measures
plan.
This “basic
showing”,
or “basic decision”,
of the USEPA rule
is
set i~the context of
an application to modify the RCRA permit.
However,
it
has three
possible “mini—procedures” which may take place outside the
context
of the normal
permit
procedures.
The
basic
showing and miniprocedures
i nd
ode:
264.i13(e)(1)
&
(2)
Basic
showing:
unit
is
allowed
to
remain open to
receive only non—hazardous waste following
removal
of hazardous waste
and filing
of
an
adequate “contingent corrective measures plan”.
264
13(e)(3)
Extension of time for
removal
of hazardous waste.
264
13(e)(4)(iii)
Following detection of
a
release,
shortening the
time allowed for implementation of the corrective
measures plan,
or
requiring the cessation of
receipt
of non—hazardous waste.
264.113(e)(6) &
(7)
Requiring closure of the unit following
a failure
to
implement the corrective measures plan,
or
failure
to
“make
substantial progress”.
Whether
the
basic
showing
is
within
the
Agency’s
permit
modification
jurisdiction
depends
on whether
it amounts
to
a
“waiver” of the closure
requirement
in
35 Ill. Adm. Code 724.321, or whether
it amounts to
a
“do A,
or
do
B
if
condition
X
is true”
rule.
The basic showing could
be construed
either
w~y.
On
the
one
hand,
it
is
a
“waiver”
of
the
double
liner
and
leachate collection
and removal
requirements
of Section
724.321.
On the other
hand,
it
is
an alternative standard
under which the Agency
reviews permits.
For tne
reasons discussed below
in connection with the other three
“miniprocedures”, the Board
has characterized this
a
a
“waiver” provision
which
requires some form of Board
action.
40
FR
264.113(e)(3) could
be construed
as
a mini—procedure to
be used
for after-the—fact extensions of time to
remove hazardous waste.
However, the
standard
for
approval
is
that the
removal
“will,
of necessity, take longer”.
This
appears
to
contemplate
factors
which
ought
to
be
known
to
the
operator
in
advance
Df
the
removal,
such
that
the
operator
should
make
the
showing
by
way
of
normal
permit
appl ication.
Therefore,
the
Board
suggests
that
the
USEPA
rule con’~emplatesan advance showing
as
part of the
approval
of the removal
p1 an.
On
the
other
hand,
40
CFR
264.113(e)(4)(iii)
comes
into
play
after
a
release
ias
been
detected.
This authorizes USEPA
to alter the corrective
measures
plan to either shorten the one year allowed for implementation,
or
to
require
the
operator
to
cease
accepting
non—hazardous
waste.
These
are
emergency
actions,
for
which
the
standard
is
“to
protect
human
health
or
the
113—143
-19-
environment”.
The USEPA
rules
do
not specify
a procedural
context.
40 CFR 264.113(e)(6) and
(7) deal
with required closure of the unit.
These subsections
are intertwined.
Under the former,
the operator
is
required
to close the
unit if
he either:
fails
to implement the corrective measures
plan;
or, fails
to make “substantial
progress”
in implementing corrective
action and achieving groundwater protection standards.
The
latter specifies
a
tentative decision/public
comment/final
decision process, which
is
an
abbreviated version
of the 40 CFR
124 permit modification procedures.
40 CFR 264.113(e)(4)(iii),
(6) and
(7) amount
to “administrative orders”,
including
a “closure order”.
The Agency cannot do
this pursuant to
its permit
issuance authority under Section
39 of the Act.
This power
is
reserved
to the
Board
under Title
VIII
of the Act.
The process
in
the
USEPA rules
is
patterned
after the groundwater
protection rules
in 40 CFR 264,
Subpart
F,
which
appear
in
35
Ill. Adm. Code
724.Subpart
F.
These
were adopted
in R82—19.
(Opinion of July 26,
1983,
p.
26,
42,
53 PCB
131,
156,
172.)
The rules
were amended
in R89—1.
A hazardous
waste management facility
is initially permitted with
a “detection monitoring
program”.
If
a release
is detected, the operator
is
required
to file permit
modification applications to
establishing
“compliance monitoring”
and
“corrective
action”
programs.
If the applicant files
the application,
the
Agency may act
on the application,
and modify the
permit
to
require
the
operator
to carry out
remdial
action measures.
If the applicant
fails
to
file
the application, the Agency must bring
an enforcement
action, which may allege
failure
to
file the application,
as well
as
any underlying violations
associated with the
release itself.
(R82—19,
p.
27).
The procedures
in
this
rulemaking differ
in that the operator does
not initiate
the process with
an
application,
and Agency actions
include
a
requirement
to
close
a unit.
This
is more like
a
“cease and desist”
order from the
Board under Title VIII
of the
Act.
Another major problem with the USEPA rule
is that it
sets
up
a non—
appealable determination.
(40 CFR 264.113(e)(7)(v)).
As
noted
above,
for the
Agency to
have the authority to make this type of determination,
it must be
in
the context
of
permit
issuance,
and,
as such,
subject
to meaningful
review
by
the
Board.
If
a non—appealable decision
is
essential
to the USEPA process,
then
it can’t
be
an Agency permit decision.
The Board
has therefore concluded that the Agency cannot
implement the
mini—procedures
in
40 CFR 264.113(e)
in the context
of RCRA permit issuance.
It
is necessary
for the Board
to take some action,
by way of enforcement
order,
variance, site—specific rulemaking
or adjusted standard,
to implement
these
requi rements.
ADJUSTED STANDARD MECHANISM
This
still
leaves
the question as
to the character of
the basic decision
to allow the impoundment
to remain open,
which
is
discussed above.
One
option
would
be
to allow the Agency
to make the
basic decision by
permit
modification,
but to use Board
decisions to modify or terminate
the
basic
authorization.
This appears
to
be rather complex,
and
it obscures
the
overall
relationship of the basic
decision and mini-procedures.
The regulations seem
113—149
-20-
to be
simpler
if the Board
construes the basic decision as
a
conditional
waiver which
is
altered
or terminated
by the miniprocedures,
with the
result
that the general
rule,
Section 724.321, again governs.
Consistent with this,
the Board has adopted
a Board mechanism for the basic
decision, subject to
modification
or termination
by Board decision.
As
noted, there are
several possible ways for the Board
to make these
decisions.
These
include:
enforcement order, variance, site-specific
rulemaking
or adjusted standard.
An enforcement
order
or
site specific rule
would
take
too
long
to
meet
the
intent
of
the
federal
rule.
Variances
are not
appropriate,
since the standard for the basic
decision does not
involve
arbitrary or unreasonable hardship,
and the
rule would
grant
ndefinite
relief, without
leading to
eventual
compliance with
the gene”al
standard.
The
mini—proceedures
also lean toward greater
contro1s, opposite the usual
direction of
a variance.
This
is clearly
a
siti.
ion for an
justed
standard,
in which the standards contained
in the USEPA rule
-c construed
as
“justifications” for the adjusted standards,
as the
term
is
,.,,
I
in Section
28.1
of the Act,
and 35 Ill. Adm. Code 106.701
et seq.
The
‘
c decision
is
to be done
by adjusted standard.
The mini—procedures
are so
~quentadjusted
standards proceedings
in which the Board conside”s whether t
modify
or
terminate the original
adjusted standard.
With the
basic structure of
35
Ill. Adm. Code 724.213(e) decided,
it
is
now time to turn to the details.
STRUCTURAL PROBLEMS WITH USEPA RULE
There are
a number of basic problems with the way the USEPA rule
is
structured, which
have forced the Board
to
completely
rewrite the subsection
in
order to
implement USEPA’s
intent
in the adjusted standa—ds
procedural
context.
A correspondence table
appears
at
the
end of this Opinion.
The main
problem
is that the structure
of the USEPA rule
is
such that it
is difficult
to make
a concise
change
to the procedural
context.
To start with, the
removal
plan and contingent measures plan appear
in
the rule
in the
reverse
of their temporal
order.
The operator
has
to
remove
the hazardous waste
at the outset,
but only implements the corrective measures
plan
if
a release
is
detected.
The way these appear
in the USEPA rule
leads
the
reader to
the false conclusion that
removal
is
to
follow c:orrective
measures.
The second basic problem
is that
the requirements
for the
removal
and
corrective measures plans are scattered about
the rules.
The Board
has
consolidated
all
of the
requirements
into subsections
(e)(2)
end
(3).
The
scattering of requirements
is the main structural
defect which
led to the
reorganization.
In the USEPA rule it
is
unclear whether the scattered
provisions
are part of the basic decision,
or mini—procedures.
In the State
rule
it would
be necessary deal with the
procedural
nature
of these
requirements
at many points
in the rule.
The result would
be
a confusing
mess.
Along this line the Board
has made a number
of choices
as
to whether to
characterize decisions
as
a part of the main decision,
or mini—procedures.
The Board
solicited comment
as
to whether
its interpretation
is consistent
113—150
_21
—
with USEPA’s
intent, but
received no response.
One example
is found
in
subsection
(e)(2)(C),
concerning extension of the
90 day
removal
period.
(40 CFR 264.113(e)(3)).
As
is discussed
above,
the
Board has construed
this
as
a part of the main decision, and moved
it
into
the
requirements
for the
removal plan.
The alternative would
be to make
it
a
post-hoc mini—procedure,
but,
as was discussed
above,
this appears
to
be
inconsistent with the future-tense
standard
(“will,
of
necessity, take
longer”).
A second example occurs
in subsection
(e)(3)(C)
and
(0), which are drawn
from 40 CFR 264.113(e)(4).
These allow
the contingent corrective measures
plan to authorize continued
receipt
of waste following
a release, and
require
implementation of the plan within one year after
a
release
(or approval).
These are clearly part
of
the
plan,
which
need
to
be
stated
as
standards
for
the
basic
decision.
One possible effect
of moving these
into the basic decision
is
to
limit
the
use
of
these
standards
in
a
post-hoc
fashion.
For
example,
suppose
the
basic adjusted standard is issued,
requiring 90 days for removal.
However,
bad
weather
delays
removal
in
a
manner
which
in
retrospect
was
“of
necessity”.
Under the Board
rule
it
is necessary to
reopen the basic
adjusted
standard to address this.
A variance or provisional
variance could
be
requested if there
is
not enough time to modify the adjusted standard in
advance.
The adjusted standard could
then be modified
to conform with the
“as
built”
removal.
Two
other
structural
ambiguities
in
the
USEPA
rule
are
in
40
CFR
264.113(e)(4), which
is mainly
in Section 724.213(e)(4) and
(5).
The
first
problem is
the definition
of
a “release”
in the introduction.
A “release”
triggers the miniprocedures,
so that this
is
a very important definition for
specifying procedures.
The USEPA rule appears
to define
“release”
in
a
parenthetical,
as follows:
If
a release that
is
a statistically significant
increase or
decrease
in the
case of
pH
over
background
values
for detection monitoring parameters
or contaminants
specified
in the permit
or that
exceeds the facility’s ground-water protection
standard
at
the point
of compliance,
if applicable,
is
detected
in
accordance with the requirements
if
Subpart
F
of this part, the owner or operator of the
unit:
This violates one of two canons
of rule writing.
It
is either defining
a
term
in
a subordinate
clause,
or
it
is
repeating
a
definition
in
a
parenthetical.
If
one
is defining
a term in
a
rule,
it
is
a complete thought
and ought
to
be
a
separate sentence, preferably labled
as
a
“definition”.
Also,
it
is
not
a good
idea to
repeat definitions
as
“aids to
the reader”
in
parentheticals.
For example:
“If your horse,
which,
by the way,
is
a
four
legged mammal,
breaks
his
leg...”
The problem with restating definitions
in
parentheticals
is
that the
reader never knows whether
a redefinition
is
intended.
And,
if the redefinition
is not
perfect,
the parenthetical
opens
the door to loopholes and contradictory provisions.
113—151
-22-
The
Board
has
construed
the
clause
as
a
special,
local
definition
of
“release”,
and made
it
a separate sentence
in subsection
(e)(4).
However,
the
Board
cannot see
any difference between this definition
and the general
definition
in Subpart
F.
If there
is none,
“release” ought to be defined
simply
as
“a
release detected pursuant
to Subpart
F”.
The Board solicited
comment
as to what the difference
is, but received no response.
There
is yet another apparent error
in the USEPA rule which needs
to be
corrected.
When
one
attempts
to
convert
the
clause
directly
into
a
sentence
it
becomes
apparent
that
something
is
very
wrong.
The
USEPA
rule
reads
“If
a
release
that
is
a
...
statistically significant increase
...
or that exceeds
groundwater protection
standard...”
The subject
changes
in the middle of
the clause.
Moreover, the phrase
“statistically significant
increase or
de:rease
in the
case of pH”
certainly
needs
to modify the provisions
c
~erning
groundwater
protection
standards,
as
well
as
detection
monitoring
‘‘meters.
The Board
has adopted the following in Section 724.213(e)(4):
Release.
A release
is
a statistically significant
increase
(or decrease
in
the case of
pH)
over
background values
for detection monitoring
parameters
or constituents specified
in the permit,
or over the
facility’s groundwater protection standard
at
the
point
of
compliance,
if applicable,
detected
in
accordance with the requirements
in Subpart
F.
The
second
major
problem
with
this
subsection
arises
from
the
“mini—
pr-ocedures”
in
40
CFR
264.113(e)(4)(iii).
USEPA
specifies
no
procedural
~e’qui—ements
whatsoever
for
these
procedures.
They
do
not
appear
to
be
permit
mod~ficationsunder the USEPA rules.
Nor does USEPA specify the procedures
of
subsection
(e)(7).
As
is discussed
above,
the Board
has
used the adjusted
standard
mechanism
for
the
basic
decision,
and
to
handle
this
“miniprocedure”
as
a modification of
‘the adjusted standard.
At
several
points the USEPA rule requires the owner
or operator to
“implement” corrective measures.
(40 CFR 264.113(e)(4)(i),
(4)(iii),
(6)
and
(,)).
Does this mean
to begin to
implement the
plan,
or to complete the
iruplementation
of the plan?
The Board solicited comment
on this,
but received
nc
response.
Many of the requirements
in
40 CFR 264.113(e)
have three aspects:
the
operator
has
to
have
a
plan
to
do
X;
he
has
to
do
X;
and,
doing
X
is
a
ccndition precedent to
doing something else.
The
USEPA rules
often omit
one
o~more of these.
For example,
the USEPA
requires
a
removal
plan and requires
removal
of the hazardous waste,
but omits
any effect
of failure to remove
on
tI-c basic decision
to allow the
unit to continue accepting non—hazardous
waste.
As
is discussed
below, the Board
has conditioned the adjusted standard
on actually effecting the
removal
(Section 724.213(e)(8)(C)(i)).
The USEPA rule also omits
an explicit standard for the
basic approval.
it
is pretty clear that the
standard
is
a
sufficient
removal
plan and
contingent
corrective measures
plan.
However, the
rules are vague
as
to what
a
sufficient contingent corrective measures plan might
be.
The standard may
be
implied
by
40 CFR 264.113(e)(1)(i), which provides that the
plan may be
a
corrective
action plan filed under §264.99.
In Section 724.213(e)(3)(A), the
113—152
-23-
Board
has
provided
that
the
corrective
measures
plan
ought
to
meet
the
requirements
of
a corrective action
plan, based
on the assumption that
a
release
has been detected from the unit.
The Board
solicited comment
on this,
but received no response.
The USEPA rule appears
to repeat the standard
for required
closure
in
40
CFR 264.113(e)(6)
and
(7).
The Board has placed
the standard for closure
in
Section 724.213(e)(7),
and the procedures
in
(e)(8),
avoiding repetition.
DISCUSSION OF
BOARD RULE
The Board
rule, Section
724.213(e),
is sufficiently different from 40 CFR
264.113(e) that
it
merits
an
independent explanatory discussion.
The
comparison with
the USEPA
rule and
reasons for departure from the text are
discussed above.
Section 724.213(e)
allows the
owner
or operator of a surface
impoundment
which
is not
in compliance with the double liner
and leachate collection
requirements
in Section 724.321
to
remove hazardous waste,
and
remain open
for
receipt
of
non—hazardous waste only.
The unit remains
a
HWM
unit,
and must
eventually close
as
such.
An
operator
who
wishes
to
remain
open
to
receive
non-hazardous waste must
file a petition
for adjusted standard with
the Board.
Procedures are
discussed below in
subsection
(e)(8).
The Board will grant
the adjusted
standard if
it
has
a sufficient
removal plan and corrective measures plan.
The
removal
plan (Section 724.213(e)(2)) must provide
for removing
all
hazardous
liquids,
and
for
removing
all
hazardous
sludges,
to
the
extent
practicable without
imparing the integrity of any liner.
The plan must call
for removal within
90 days after
the
final
receipt of hazardous waste.
The
Board may approve
a longer time if the removal
will,
of necessity, take
a
longer
time,
and
the
extension
will
not
pose
a
threat
to
human
health
and
the
environment.
The contingent
corrective measures plan (Section 724.213(e)(3))
is
a
corrective action plan under Section 724.199,
based
on
the assumption that
a
release
has been detected,
i.e.,
it tells what
the operator would
do
in the
event
a
release were to
be detected.
It differs
from
a
normal corrective
action
plan
in
that
it
must be filed
in advance of detection
of
a release.
If
the operator wishes
to continue receiving non—hazardous wastes following
a
release, he must demonstrate
that continued receipt will
not
impede corrective
action.
The corrective measures plan must provide for implementation within
one year after
a
release,
or after approval
of the adjusted standard,
whichever
is
later.
If
a release
is
detected, the operator must file
a new petition for
adjusted
standard
with
the
Board
within
35
days.
Pursuant
to
the
new
adjusted
standard,
if
the
Board
determines
that
it
is
necessary
to
protect
human
health
and the environment,
the Board will
modify the original
adjusted standard
to
require quicker implementation of corrective measures, or
to
require the unit
to cease
accepting waste.
In addition,
the Board will
retain jurisdiction,
or
specify conditions
leading
to further consideration
‘of the adjusted
standard.
(Section 724.213(e)(5)(A)).
113—153
—‘--‘-
The Board will
terminate the
adjusted
stanaar-a
if the operator
fails to
implement corrective measures
in accordance with the plan,
or
if
the
operato
fails
to make substantial
progress
in
implementing corrective measures
and
achieving the groundwater protection standard
or
background
levels,
as
applicable.
In addition, the adjusted
standard will automatically terminate
if the operator failed
to
remove hazardous waste,
or
failed
to
file an
adjusted standard when required
to
do
so.
(Section
724.213(e)(7))
Procedures are governed
by Section 724.213(e)(8).
This subsection
rd
ies
on
the general
adjusted standard procedures
in
35
ill.
Adm. Cpde
106.701
et
seq.
These were adopted
in R88-5, July
10,
1989,
and appeared
on July
21,
1989,
at
13
Ill.
Reg
12094.
Note
that the~eare
relictual RCRA adjusted
standard procedures
in
35
Ill.
Adrn. Code 106.Subpart
0,
which are
cited
in
other RCRA adjusted standard governing rules.
The Board
sees
no reason why
the
general
rules
cannot
be used for this adjusted
standard.
The Board
solicited comment, but
received
no
reponse.
These
adjusted standards will
be
granted based
on “justifications”,
as
defined
in Section 28.1 of the Act.
The
justifications appear
in Section
724.213(e).
--
The justification for the
“basic decision” discussed above
is that the
operator has
a
sufficient contingent corrective measures plan and removal
plan.
(Section 724.213(e)(8)(B)).
The justifications
for modifying or
terminating the
adjusted standard are set out
in
Section 724.213(e)(5)(A)
and
(e)(7).
These include:
modification
to accelerate the corrective action
plan
or cease accepting waste, pursuant
to
a
finding
of necessity
in order
to
protect
human
health
and the environment;
and, termination
on
failure
to
implement corrective
action,
or
failure
to
make
substantial
progress
in
implementing the
plan,
or achieving groundwater
protection
standards or
background
levels.
The basic
adjusted standard will
include
a
number
of conditions
set out
in
Section
724.213(e)(8)(C).
These
generally
repeat
the
requirements
set
out
above.
The
adjusted standard must include
the following conditions:
the
removal
plan;
removal;
the contingent corrective measures plan;
required
implementation
of the plan;
a semi-annual
report;
and,
a variety
of zipper
clauses.
These
include
a requirement to
file
a
new adjusted standard petition
within
35 days after
a
release;
automatic termination on failure
to
implement
removal
or file
a required adjusted standard petition;
and,
a
requirement to
close
in the event
of termination.
Under Section
724.213(e)(9) the Agency
is
required
to modify the RCRA
permit
to reference the adjusted standard.
It
is necessary
to add this
requirement
in the State
rules, since
the adjusted standard
process
is outside
the permit
issuance procedures.
Under Section
724.213(e)(1O), the owner or
operator
is allowed
to file
a
revised
closure plan within
15 days after
an adjusted standard
is
terminated.
This provision
is drawn from 40 CFR 264.113(e)(7)(iii).
Revision
of
the closure
plan would proceed
by no-mal
permit modification.
COMPARISON
OF ADJUSTED STANDARD TO USEPA PROCEDURE
The adjusted standard procedures
are somewhat different from the USEPA
procedures
for requiring closure
in
40 CFR 264.113(e)(7).
Under the USEPA
11 3—154
-25-
procedure,
USEPA first makes
a
(tentative)
decision
that the owner or operator
has failed
to implement closure
or
to achieve substantial
progress.
USEPA
gives
a public notice,
and allows
a
20 day public
comment period.
If USEPA
receives
no comment,
the decision becomes
final
5 days after the end
of the
comment period.
Therefore,
in the
absence
of
comment, USEPA could reach
a
final
decision
25 days after the
initial
decision.
If USEPA receives public
comment,
it
is
to wait
30 days after the
end of the comment
period,
and
publish notice of the
final
decision.
This process would
require
50 days,
plus
the final
publication time,
again measured
from the
initial
publication.
Under the Board’s adjusted standards procedure,
a
release would
force the
owner or operator to
file
a new adjusted standards petition.
The Board would
consider modification pursuant to Section 724.213(e)(5)(A),
and either
retain
jurisdiction,
or
issue
a modified adjusted standard with
a
condition requiring
a
new petition
to address
required closure.
The following timeline assumes
the
latter
situation.
In the
former situation,
the matter would
already
be
before the Board,
so that some of these
procedural
steps
would
already have
occurred,
shortening the
time to
final
decision.
The petitioner must give public notice
of the filing
of
an
adjusted
standard petition within
14 days after
filing.
The public has
21 days
in
which
to
request
a hearing.
If
a
request
is
received, the Board will give
at
least
20 days notice prior
to the hearing date.
14 more days
are allowed
for
post—hearing comment.
If
a hearing
is
requested,
it would take around 84
days
to reach
a
final
decision.
If
no hearing
is
requested,
the Board would
act
on
the petition
and Agency
response.
The
latter
is due
30 days after the
petition.
Thus
the USEPA process takes
some 25
to
50 days, while the Board process
takes
30
to
84 days.
However,
it
is
not possible to compare these numbers
directly,
since the “procedures”
do
not
start
at the same moment:
while the
USEPA timeline
starts
from the publication
of
its
initial
decision, the
Board’s
starts with the
filing
of
a required petition.
The USEPA rule does
not articulate any timeline for the
internal mechanisms
leading
up
to
publication
of the
initial decision.
The comparable point
in the Board
procedure
is
either the publication
of
notice of the petition by day
14,
or
the receipt
of the Agency
response by day 30, which
is the first
time the
State takes
a position
on
whether
closure
ought
to
be
required.
After
subtracting
30 days for the
response,
the adjusted standards process
takes
from
zero
to
54
days,
very
similar
to
the
USEPA
times.
Section 724.242
This Section
is drawn
from 40 CFR
264.142, which was amended
at
54 Fed.
Reg. 33393,
August
14,
1989.
This Section
has been amended
to specify the
closure cost estimate
in the
event
a unit
is going
to accept non—hazardous
waste after
its
final
volume
of
hazardous waste.
PART 725:
STANDARDS FOR INTERIM STATUS FACILITIES
The following amendments
are drawn from 54 Fed. Reg. 33393, August
14,
1989.
These amendments allow hazardous waste management units
which have
closed
to
receive
non-hazardous
wastes
under
certain
conditions.
These
pose
many
of
the
same
issues
as
the
Part
724
rules.
However,
these
decisions
take
113—155
-26-
place outside the context of the permit
program.
Issues
in common between
Parts 724 and
725 will
not be
repeated.
Section
725.113
This Section
is drawn
from 40 CFR 265.13, which was amended
at
54 Fed.
Reg.
33393,
August
14,
1989.
40
CFR
265.13
and
the
following
Sections
repeat
the
following
phrase,
with varying punctuation:
“...hazardous waste
or
nonhazardous waste,
if
applicable,
under ~~265.113(d)
...“
The Board
has attempted to
correct the
punctuation,
an~4 render this phrase consistently
as:
“...hazardous waste,
or
nonhazardous waste
if applicable under §265.113(d),
...“
Section
‘25.113(a)(1)
has the
same ambiguity discussed above
in
connection ~
.h Section 724.113:
the Federal
Register instructions are
ambiguous
a
‘
whether the basic
standard for
a waste
analysis plan
has
been
repealecf~~
s discussed above, the Board
has determined that USEPA did not
intend
to
r
al
the standard,
and has therefore left
it
in.
As
is also
discussed a~ye, the Board
had originally proposed to drop the standard.
Section 725~ ~2
This Section
is drawn from 40 CFR 265.112, which was amended at
54 Fed.
Reg. 33393,
august
14,
1989.
Section
725.213
This Se;tion
is drawn from 40 CFR 265.113,
which was amended
at
54 Fed.
Reg.
33393, August
14,
1989.
This
includes the addition of Section 725.213(d)
and
(e), which govern the conditions
under which
a unit may continue to
receive
nonhi.zardous waste after
it
has received
its
final
volume of hazardous
waste.
This
is
similar to Section
724.213, discussed above,
except that
approval
fo— interim status
units must come outside the permit
system.
However,
one of the conditions
in
40 CFR 265.113(d)
is
that the owner or
operator of
On
interim status unit must
file
a Part
B permit
application.
Therefore,
these provisions apply only to interim status units with an
application pending.
For this reason, many references
go to
the final
permitting rules.
One difference
is
in the introduction
to 40 CFR 265.113(d):
USEPA may
allow interim status
units “to receive non-hazardous wastes”.
However, under
40 CFR 264.113(d),
USEPA may allow permitted units
“to
receive only non—
hazardous waste”.
The Board solicited comment
on this,
but
received no
response.
As discussed above,
40 CFR 264.113 and 265.113 include
references to
Sections 3004
and 3005 of RCRA.
The references,
in
40 CFR 265.113(e),
to
Section 3004 appear to
be irrelevant,since Section 3004 applies
only to
permittec
facilities.
However, the references to Section
3005 do apply to
interim status facilities.
As
was discussed above,
the Board wishes to avoid making unneccesary
references
to
federal
statutes, prefering to
reference the derivative
State
113—156
-27—
rules.
It
is somewhat more difficult to
locate the requirements
of Section
)t,Ac~f.~\/i\
(—\
,i\
_~
1,-~\
I.L
~...,,._
r
,~
~
r-F~’I,\
—
V~)
anu ~
in ~uer~yu~u1un~.
~ec~1un
iUu3kJ)I,.1)
prohibits acceptance
of
hazardous wastes
at
an
interim status
surface
impoundment,
unless the unit meets the standards 3004(o)(1)(A)
of RCRA,
the
standards for
new facilities.
This appears
to
be
reflected
in Section
725.321(a).
Section 3005(j)(2)
-
(4) are exceptions
to 3005(j)(1).
They do
not
appear
to
correspond
with
the
exceptions
stated
in
the
rules.
The
Board
solicited
comment,
but
received
no
response,
as
to whether
it
is
necessary to
reference these exceptions,
and
as
to where the exceptions are located
in the
rules.
Section
3005(j)(13)
allows
the
Administrator
to
modify
the
requi~ements
of Section 3005(j)(1)
in the
case of
surface impoundments
subject
to prior
consent decrees.
It
is not
clear whether this
reference has any place
in the
State rules,
pursuant to Section
7.2(a)(1).
In
summary, the
Board
has referenced only
35
111.
Adm. Code 725.321(a).
The
Board
solicited
comment
on
this,
but
received
no
response.
A second possible difference between the
rules
for interim status
and
permitted facilities occurs
in Section 725.213(e)(3)(A)
and
(B), which
relate
the contingent corrective measures plan to the corrective action
plan under
Part
724.
As was discussed
above, the USEPA Part 264 rule provides that the
contingent corrective measures plan may be
one previously filed
under
§264.99.
This
is
omitted
from
the
interim
status
rule.
However,
as
noted
above,
units
subject
to this
rule have to file Part
B applications, which
might
include
a
corrective action plan under §264.99.
The Board
sees no
reason why this couldn’t be used
here,
and has
retained this reference.
As
was
also
discussed
above,
the
USEPA
rule
lacks
a
standard
for
approval
of the contingent corrective measures plan.
The
Board fixed this above by
reference to the equivalent
of §264.99,
35
Ill. Adm.
Code
724.199.
Note
that
the corrective action plan
is unique
to Part
264:
there
is
no equivalent
in
Part
265.
Although the
interim
status
unit
is
not
subject
to
§264.99,
it
is
required to file
an
application pursuant
to
it.
There
is
no reason why the
Board
should
not
borrow
this
standard
from
the
final
rules
with
respect
to
the
interim
status
facilities
also.
Therefore,
in
Section
725.213(e)(3)(A)
and
(B),
the Board
has
used the same language as
in Part
724.
The definition
of “release”
in Section 725.213(e)(4)
is
different for the
interim status
rules,
because interim
status
facilities
lack “detection
monitoring parameters”
and “groundwater protection standards”.
Rather,
the
interim status facility just monitors
for “hazardous constituents”.
Also,
“release”
is judged against Subpart
F
of Part
265.
The Board
has used the
same adjusted standards procedures
for the interim
status
approval
as
for permitted facilities.
Indeed,
a major advantage of
the
adjusted
standard mechanism in
this situation
is that there
is
no need to
create
a special
procedural
system managed
by the Agency outside
the
permit
system.
Because the interim status facility
lacks
a
formal
permit, there
is
no
necessity
for Agency action
following an adjusted standard granted by
the
Board.
There
is
therefore no need for an
equivalent
of Section
724.213(e)(9),
113—157
-28-
which
requires modification of permits
to conform with the adjusted standard.
The Board
has corrected
a typographical
error
in the proposal
at Section
725.213(d)(1)(B).
(Repetition
of “waste”.)
(PC
4)
Section
725.242
This Section
is drawn from 40 CFR
265.142, which was amended
at
54 Fed.
Reg.
33393, August
14,
1989.
PART
726:
STANDARDS FOR RECYCLING,
ETC.
Section 726.120
This Section
is drawn from 40 CFR
266.20, which
:s
amended
u
54 Fed.
Reg.
36970, September
6,
1989.
These amendments
concern correcti-” ~ to the
first third
land disposal
bans,
concerning use of commercial
fert
‘
zers made
from hazardous waste.
PART
728:
LAND DISPOSAL RESTRICTIONS
The following amendments were drawn from 54 Fed.
Reg.
36970,
eptember 6,
1989.
They are corrections
to the first third
land
disposal
bans, which were
adopted
in
previous Dockets.
Section 728.101
This Section
is
drawn from 40 CFR
268.1,
which was amended
at
54 Fed.
Reg. 36970, September 6, 1989.
Paragraph
(c)
has been broken
into two
paragraphs,
(c)
and
(e).
The
former now deals with “restricted” wastes, which
may still
be
land disposed
if certain
“exemptions”
have been granted.
New
paragraph
(e) states
the exclusions from Part 728:
Small
quantity generator
waste;
waste pesticides disposed
on the
farm;
and, wastes
identified
or
listed
after November
8, 1984
(the effective date of the HSWA amendments
to
RCRA),
and for which
no land disposal
prohibitions
or treatment
st3ndards have
been promulgated.
The
last
exclusion
is
keyed
to
the
date
of
USEPA
action
in
listing
additional
wastes.
It appears
to
be necessary to
reference the USEPA action
on this point.
Section 728.105
This Section
is
drawn from 40 CFR- 268.5,
which was amended
at
54 Fed.
Reg.
36970,
September 6,
1989.
This Section
incorporates by reference the
USEPA procedures for case-by—case extension of effective dates
for land
bans.
Extensions granted by USEPA are deemed
extensions of the de:ivative
Board rule.
The Board has updated
the incorporation by reference
to
include
the USEPA amendment.
Section 728.106
113—158
-29-
This
Section
is
drawn
from
40
CFR
268.6,
which
was
amended
at
54
Fed.
Reg. 36970, September
6,
1989.
ifl Section 728.106(f)(i), “restricted waste”
is
changed
to
“prohibited waste”.
Section 728.107
This Section
is drawn from 40 CFR
268.7, which was amended
at
54 Fed.
Reg. 36970, September 6,
1989.
The amendments
reflect minor changes
in
wording
to
subsections
(a)(3),
(a)(4)
and
(b)(8), and add
(c)(4).
Section 728.108
This Section
is
drawn
from 40 CFR
268.8, which
was
amended
at
54 Fed.
Reg.
36970, September
6,
1989.
This Section
incorporates
by reference the
USEPA procedures
for extensions
of certain
landfill
and
surface
impoundment
restrictions.
The
Board
has
updated
the
incorporation.
However,
in
that
this
procedure will
no longer
be
available after May 8,
1990,
the Board solicited
coiriiient
as
to whether
it would
be better
to repeal
it.
The Board received
no
response.
In that this
is
a
recently passed date,
the Board will
leave the
rule
in place
for the
time being.
Section 728.132
This Section
is drawn from 40 CFR
268.32, which was amended
at
54 Fed.
Reg. 36970, September 6,
1989.
The correction
concerns Section
728.132(f).
40 CFR 268.32(f) originally
read:
“may be disposed
in
a
landfill
or
surface
impoundment only
if
such disposal
is
in compliance with
...
§268.5(h)(2)”.
The Board noted
a problem with this wording and adopted
“the facility” in
place of the underlined words.
USEPA
has now corrected the problem by
replacing the underlined words with
“such
unit”.
The Board has now adopted
the USEPA correction.
The
proposal
failed
to
show
“the”
struck out with “facility”.
This has
been corrected.
(PC
2)
Section 728.133
This Section
is drawn
from 40 CFR 268.33, which was amended
at
54 Fed.
Reg. 36970, September
6,
1989.
There
are major problems with the Federal
Register text of these corrections.
Item 24
in
the Federal Register instructs to remove
“KOlS wastewaters”.
However, this listing
does
not appear
in Section 728.133(a).
It also appears
absent
from the Federal Register cited
in the correction.
One possiblity
is
that
the listing was added
subsequent
to
the orginal
Federal
Register.
Another possibility
is that the listing for “KO15”
should
be removed.
Yet
another possibility
is that “KO15”
should
be changed to “KOIS
nonwastewaters”,
thereby removing “KOlS wastewaters”
from the “KO15”
listing.
The Board
solicited comment,
but received
no
response.
As was discussed
in
the Proposed Opinion,
Item
32
in the Federal Register
included instructions which
could
not be carried
out.
This was clarified
at
55
Fed.
Reg.
23935,
June
13,
1990.
The
insert
should
have
been
keyed
to
“extract
or
the
waste”,
at
the
second occurrence
in Section 728.133(g).
113159
-30-
In the proposal,
in Section
728.133(a),
listing K102 was incorrect.
has been corrected to
correspond with the
Federal
Register.
(PC 4)
Section
728.144
(No
amendment)
This
This Section
is drawn
from 40 CFR
268.44, which was amended
at
54 Fed.
Reg. 36970, September
6,
1989.
The amendment changes the office with USEPA
which
is
to
receive requests for “variances” from treatment standards.
This
has been rendered
as
an adjusted standard
in
the Board
rule,
and the office
remains unchanged
at the
State level.
Section
728.150
This
Section
is
drawn
from
40
CFR
268.50,
which
was
amended
at
54
Fed.
Re~3697.0,September
6,
1989.
The prohibition
on storage of restricted
wastes
has
been corrected.
CONVERSION TABLES FOR SECTION
724.213(e)
The following tables
show equivalence between
35 111. Adm. Code
724.213(e) and 40 CFR 264.113(e).
STATE
TO FEDERAL
TABLE
35 Ill. Adm. Code
106. 711
106.903
106. 903
724.213(e)
724. 213 (e
)
(1)
724.213(e)(1) (A)
724. 213 (e
)
(1) (B)
724.213 (e) (2) (A)
724. 213 (e) (2) (B)
724. 213 (e) (2) (C
724.213 (e) (2
)
(C
)
(i)
724.213(e)(2)(C)(ii
)
724.213(e) (3) (A)
724.213 (e
)
(3) (B)
724.213 (e) (3
)
(C)
724.213 (e
)
(3) (D)
724. 213 (e) (4)
724.213 (e) (5)
724. 213(e) (5
)
724.213 (e) (5)
724.213(e) (5
724.213 (e
)
(5)
724.213(e) (6)
724.213 (e
)
(6) (A)
724.213 (e) (6
)
(B)
724.213 (e
)
(6) (C)
724.213(e) (7)
724.213 (e) (7) (A)
40 CFR
264.113(e)(7)(ii
)
264.113(e)(7)(i ii)
264. 113(e
)
(7) (iv)
264.113(e)
264.113(e) (1)
264.113(e)(1) (ii)
264.113(e)(1)(i)
264. 113 (e) (2)
264.113(e)(2)
264.113(e) (3)
264. 113 (e
)
(3)
264.113(e) (3)
state
264.113
264. 113(
264.113(
264.113(
264. 113(
264.113(
264. 113(
264.113~
264.113(
264. 113C
264. 113(
264. 1131
264.113(
264. 1131
264.113
e)(1)
‘e)(4)
e)(4)
‘e)(4)
e)(4)(iii
)
:e)(4)(iii)
e) (4) (iii)
:e)(4)(i
)
:e)(4)(ii
)
:e)(5)
e)(5)
:e)(s)
:e)(5)
:e
)
(6)
(e)(7)
(i
)
(ii)
(i
)
(A)
(A)(i
)
(A)(ii)
(B)
(C)
113—160
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(.)
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cc
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-32—
264.113(e) (7 )(ii)
264.113(e) (7) (iii)
264.113(e) (7)(iii)
264.113(e)(7)(iv)
264. 113(e) (7
)(
v)
state
state
state
state
state
state
106. 711
106.903
724.213 (e)
(
10)
106. 903
n.s.e.
724.213(e) (9)
724.213(e)(8)(C )(v)
724.213(e) (8)
724.213 (e) (8) (A)
724.213(e) (8)(B)
724.213(e) (3)(A)
This Opinion supports the Board’s Order of this same day.
The Board
will
not
file the
rules
until
after August
3,
1990,
to allow time for post-adoption
review by the agencies involved
in
the authorization process.
I, Dorothy
NI.
Gunn, Clerk
of the Illinois Polluti
n Control
B ard~hereby
certify that
the above Opinion was adopted
on the
_____
day of
____________
1990, by
a vote of
7—0
.
I-
1mo
ut
on Control
Board
113—162