ILLINOIS POLLUTION CONTROL BOARD
July 19,
1990
IN
THE MATTER
OF:
)
R9O—17
RCRA DELISTINGS
)
Rulemaking
PROPOSAL
FOR
PUBLiC
COMMENT
PROPOSED
OPINION
OF
THE
BOARD
(by
R.
Flernal):
By
a separate Order,
pursuant
to Section 22.4(a)
of the Environmental
Protection Act
(Act),
the Board
is proposing to amend
the RCRA hazardous waste
regulations.
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
charges
to the Board’s
hazardous waste delisting procedures
in
response to USEPA’s delegation of
delisting authority
~t
55 Fed. Reg.
7320,
March
1,
199C~
HISTORY
On July
3,
1990,
the Board adopted
a
final
Opinion and Order
in R90—2.
This updated
the RCRA hazardous waste
rules
to
include amendments made by
USEPA through December
31,
1989.
These rules
have not yet
been filed,
in
order
to
allow time for post-adoption coment.
Also,
on May 24,
1990,
in R90-
10,
the Board
proposed to
update the RCRA
rules
to
include USEPA
actions
through March
31,
1990.
R90—1O
includes the
new toxicity characteristic
leaching procedure
(TCLP).
The Opinions
in R90—2 and R9O—1O recount
the
complete history of the adoption
of the RCRA rules
in Illinois.
This rulemaking involves
35
Ill. Adm. Code 720.120, 720.122, 721.110 and
721.111.
These Sections were adopted
and amended
in
tfle 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
P89—9
March
8,
1990;
p.
10
113—383
—9—
0EhEP~AL
DISCUSSION
On
March
1,
1990,
‘JSEPA celegated authority to Illinois
to administer
several
additional
components
of
the
RCRA
program.
(55
Fed.
Reg.
7320)
This
included Board autho”ity
to delist
hazardous waste,
in
lieu of USEPA, pursuant
to
35
111.
Adrn.
Code
720.122.
The
USEPA
rules
define
haza’-dous
waste
in
two
basic
ways.
A waste
is
hazardous
either:
because
it
exhibits
a
hazardous cuaracte~istic; or’,
because
it
is
listed
by
name
or
by
the
~arae
of
the
process
which
produces
the
waste.
in
the
latter case toe
listi~’gs iay
he ove~inciusive.
For example,
USEPA
might
determine
that
Process
A
p~oduces Waste
N
which
generally
has
hazadous
constituents
X,
‘1
and
7.
USEPA
would
then
“list”
‘wastes
from
Process
A”
~r
“Waste
H”.
Wastes
which
met
tris
description
would
he
hazardous,
regardless
of
woether
constituents
X,
Y
o-
7
were
actually
present.
Delisting
would
be
appropriate
if the generator ce:nonstrated that
X,
Y and
7 were not actually
present
in
its waste,
and
that Lucre were
no other
hazardous constituents.
There
are
two
basic
problams
with
the
Boa~d’sdelisting
Section,
35
111.
Adm. Code 720.122.
First,
Section 720.122
was
premised on
the assumption that USEPA
would
initially
delist
wastes,
followed
by
essentially
ministe~ia1 Board
action
in
an
“identical
in
substance”
rulemaking.
For
this
reason,
the
Board
relied
on
incorporation
by
reference
of
ISEPA rules,
rather
than following
its uSual
practice
of
adopting
the
verbatim
text.
Worse,
the
USEPA
Section
(40
CFP
260.22)
in
turn
.~ferences
the
JSEPA
standards
for
defining
hazardous
waste
characteristics
and
listing
hazardous
wastes,
whion
standards
were
also
incorporated
by
reference
in
35
111.
A~,
a.
Code 721.110 and
721.111.
In
the
context
of
a
system
in.
which
toe
Board
is
the
direct
recipient
of
delisting
procedures,
these
provisions
oay
be
confusing
to
the
public,
contro~yto
the
directive
of
Section
7.2(a)(4
of
the
Act.
Second,
35
ill.
Adm. Code 720.122
requires
toe
Board
to
use
rulernak~nato
deli
St
hazardous
waste.
In
Illinois,
site-specific
rulemaking
can
be
a
slow,
resource—consuming process.
T~eBoa—d
now
has
authority
under
Section
28.1
of
the
Act
to
handle this type
of
“exception” decision more efficiently
by way
of
adjusted
standards.
As
is
discussed
in
greate~detail
below,
the 3oa~dhas addressed
these
problems
in
two
ways.
First,
toe
Boa~a has
replaced
the
incorporations
ay
reference
with
the
verbatim
text,
tailored
to
fit
Illinois
procedures.
Second,
the
Board
has
proposec
adjusted
standards
as
an
alternative
procedu~e
to
be
followed,
a
procedure
we
believe
is
compatible
with
USEPA’s
~equirements.
The Board
specifically
solicits
coment
as
to
whethe~the
Agency
w~
11
need
to
request
reautho~’izatic~
to use
the
ddjusted standard procedure,
or
whether
USEPA
can
app~ove
tni
;
a1
terrati vu
ii’
a
less
formal
way,
such
as
by
commenting
ir
this
rulemaking?
The
Bodrd
notes
that
the
March
1,
1990,
Oederal
Register
specifies
existing
Section
720.122
as
the
approved
p~ocedu~e,
and
that
Section
specifies
ru~aki~’uunder
35
Ill.
Adrn.
Code
102.
113—304
—3—
SECTION-BY-SECTION DISCUSSION
PART 720
Section 720.111
The Board
has proposed
to
add an incorporation
by reference
for the
guidance manual
for delisting, which
is
used below.
The Board
solicits
coninent
as
to whether the April,
1985,
edition
is
still
current.
The base text for Section 720.111
is
drawn
from
P89-9,
and
may be subject
to
change
in
other Dockets before this rule
is
finalized.
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
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
normal
rulemaking.
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.
The Board
solicits coment
as
to
whether there
is
some reason for this omission.
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
proposed.
40 CFR 260.22(a) specifies that
a person must file
a regulatory petition
to
obtain
a
delisting.
The Board
has replaced this with a cross
reference to
subsection
(n),
which will
include adjusted standards
as
an alternative
procedure,
as
is discussed below.
The following text
has been generally
edited
to
be neutral
as
to the procedural
context.
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 appedr
to
say pretty
much
the
same thing,
as
applied
to the specific types
of waste.
In that
the subsequent
subsections appear to
be all—inclusive,
is
there really
any necessity for
subsections
(a)(1)
and
(2)?
The
Board
solicits
coninent as
to whether they
ought
to
be
omitted.
The Board
has proposed
to
add 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
113—385
-4-
categories which a~ealso Subpart
9
listed wastes.
It
is
possible that
subsection
(5)
applies only to mixtures
which include
a Subpart
D
listed
waste,
and that
the Subpart
D
listed wastes
themselves are del isted
pursuant.
to the subsequent
subsections.
The
Board
solicits
corwnent.
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
the Administrator”.
The Boa—d
has changed many
of these
to clea~, objective
standards.
Howeve~,those
whi’:h appear to
be cent~aito the delisting
determination
the
3oa~dhas proposed
to
‘-etain.
The
recurring one
is the
standard
for
whethe’-
to consider
othe’-
possible hazard
characteristics
besides
the ones wuich caused the waste
to
be listed.
This
reaus
as follows:
If
the Board
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
he hazardous waste,
that such factors
do
not
warrant retaining the waste
as
a hazardous waste.
The Board solicits
coninent
as
to
whether this standard could
be made
more
speci fic.
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 proposed to
replace
incorporations by reference with
ve’-batim 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.
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
Boa’-d
has
replaced this with
a
reference to the document
itself, which
has been
inco’-porated
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.
The
Board
proposes
that
this
remains
a
useful
provision
even
after
delegation,
because USEPA
might
retain
authority
to
delist
in
a multistate
situation.
In
such
a
case,
the
3oard
could
continue
to
use
“identical
in
substance”
rulemaking
to
enter
the
result
into
the
Illinois
rules.
There
are
several
possi ble
examples
of
multi
state
del i sti rys.
in
the
first
situation,
suppose
a
generato—
produces
the
same waste
in
several
states.
Could
the
generator
ask
USEPA
to
delist
thu
waste
from
all
facilities,
or
would
the
generator
have
to
go
to
the
appropriate
authority
in
each
state?
What
if
toe
di
ffe’-ent
states
reached
inconsistent
con:lusions
as
to
whethe’-
the
waste
ought
to
delisted?
For
the
second
example.
suppose
a
c’nnerator
ships
waste
out
of
state
fur
treatment-,
otorage
or
di spu ~el
.
Could
the
generato
‘-unuest
a
USEPA
11
3—386
—5—
delisting, or would the waste have to
be delisted
in both states?
Are there
other examples
of
dual
or overlapping jurisdiction?
The Board
solicits
corrinent.
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.
Subsection
(n)(1)
retains the rulemaking procedures
under
35
111.
Adm. Code
102.
Subsection
(n)(2) would allow adjusted
standards procedural
rules under
35 Ill. Adm. Code
106.
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
P81—22.
(45 PCB 345)
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.
This
subsection also contains
the
requirement that,
before the Board adopts
a
delisting,
someone demonstrate
that the delisting needs
to
be adopted
as
a
part
of the Illinois RCRA program.
This
has been renumbered
to Section
7b2.122(p).
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.
Old Section 720.122(e) has
been moved
to
Section. 720.122(q).
The Board
will
not approve delistings
if they would make the Illinois program less than
“substantially equivalent”
to the USEPA program.
In other words,
the Board
cannot add
a delisting which would
result
in loss
of program approval.
Old Section 720.122(f)
has been moved
to Section 720.122(r).
Delistings
apply only
in Illinois.
Generators must comply with Part
722 for waste which
is hazardous
in
any state
to which
it
is transported.
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
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 wholely
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.
113—387
—6—
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
del isting
rules will
be incowplete without
a
portion
of
these
listing
rules.
The
Board
has
therefo’-e proposed
to adopt the verbatim text.
However,
the verbatim text
has
been
reworded
so
that
it
governs
neither
futu’-e
actions
by
the
Boa’-d
nor
USE°A.
Rathe’-,
the
text
is
set
forth
as
neutral
statements
of
the
c’-i teria
whi oh
were
used
by
USEPA
to
identify
hazardous
characteri stics
and
to
list
hazardous waste.
In
this
may
the
needed
standards
a’-e
present,
but
the
un
nten’Jed
effects
a’-e
avoided.
Section
721.110
This Section
is drawn from
40
CFR
261.10.
This
Section
contains
the.
c’-iteria
used
by
USEPA
to
‘i denti fy’
the
characteri stics
of
hazardous
waste.
rn’-
e.xariple,
i gni tahi lity
arc
toxicity
are
“cha’-acte’-isti cs”
of
hazardous
waste
which
JSEPA
has
identified
pu’-suant
to
this
Section.
As
discussed
aruove,
the
Board
has
replaced
toe
incorporation
by
refe’-ence
with
the
ve~ha:im
text,
cdi
ted
to
avoid
stating
this
as
a
State
rule
with
whi
th
USE
PA
and
the
Board
must
comply.
40
CFR
260.10
has
a
subsection
(a),
hut
no
(b).
This
is
pohibited
by
the
Code
Unit.
The
simplest
way
to codify tois Section would
be
to
p’-onote
the
levels
of
subdi vision.
However,
this
would
dest’-oy
the
close
co’-respondence
between
the
Board
and
USEPA
nunbe’-ing.
Instead,
toe
Board
has
added
a
do
rothing
cross
reference
as
subsection
(5).
Section
721.111
lois
Suction
is
drawn
from
40
CFR
260.11.
It
sets
forth
the
criteria
which
were
used
by
USEPA
to
“list”
wastes.
For
example,
waste
mh
.:h
has
LD50
:‘-at
of
less
than
50
mg/kg
is
listed
as
“acute
hazardous waste”.
As
o’-iginaliv
adopted,
this Section
is mainly
an
incorporation by
reference of the USEPA
rule.
As
is discussed
in
general
above,
the
Board
has
proposed
to
‘-eplace
the
i
nco’-porati
on
by
reference with
the ve’-batim
text,
cdi ted
to
avoid
stating
it
as
a
State
rule
with
which
the
Board
and
USEPA
must
coiopi y.
The
standard
which
is
referenced
in
40
CFR
260.22,
which
is
the
main
pu’-pose
of
u’doptir’j
this
Section,
is
40
CER
261.11(a)(3).
This
is
toe
standard
for
listing
a
toxic
waste.
USEPA
lists
any
waste
which
contains
an
Appendix
VIII
(or
H)
conteininant,
unless
it
deter~mines that
the
waste
“is
not
capable
of
posing
a
substantial
present
or
potential
hazard...”,
based
on
consideration
of
eleven
c’-ite’-ia.
40
CFR
261.1i(a)(3)(i)
through
(xi)
list
factors
f~’-uorsijerati
on.
There
are
a
number
of
cdi tori al
proal
ems with
toe
USIPA
text.
Followirc4O
CFR
261.1i(a)(3)(xi)
is
a
hargi~gparagr~nh.
This
is
~‘~ani
bi tec
oy
toe
Auce
Di
vision.
It
is
i iipossi
SiC
to
cite
to
this
pdu
graph
a
simple
niurne’-,
othe’-
than
as
“the
hanging
paragraph
following
Secti on
251.11 (a; ~.3~xi ).
it
is
necessary
to
rewrite
this
into
a
format
acceptaale
to
the
Code
Di visi
IP.
The
qu~ti or
is
whether
this
paragraph
is
a
porti
on
of
t~
~nt”oductoryac-na
~o subsectior
(a)(3),
a
portion
of
subsectior
(oh
~)(xh,
1.13—388
—7—
subsection
(a)(4) with its
label
missing.
This paragraph
is
the criterion for
listing hazardous constituents
in Appendix VIII
(or H).
As
such
it
is
a
concept which should
be placed into parallel with subsection
(a)(3).
The
Board
has
therefore
adopted
the
third
alternative,
and
proposed
this
as
35
Ill. Adm. Code 721.111(a)(4),
but solicits coninent.
The main problem with the above
interpretation
is that the parenthetical
following the hanging paragraph appears
to
apply to paragraph (a)(3),
not
to
what the Board has labeled
(a)(4).
The Board
has
therefore reversed
the order
of
these
paragraphs.
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.
The Board
has therefore
proposed to leave this reference,
but solicits coment.
The alternative would
be
to
set
forth the definition from the RCRA Act.
CONCLUSION
This Opinion supports the Board’s Order
of this same day.
The text
of
the proposed
rules
is set forth
in that Order.
The Board will
accept written
public coment
for 45 days after publication of the proposal
for public
corruiient
in the
Illinois Register.
I,
Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution Control Board,
hereby
certify
t
at
the above Proposed Opinion was adopted
on the
/~?~
day
of
______________,
1990,
by
a
vote
of
..~5
-C
s~_~7
Dorothy M.~unn,Clerk
Illinois Pollution Control Board
113—389