ILLINOIS POLLUTION CONTROL
BOARD
August
9,
1990
IN
THE MATTER
OF:
RCRA UPDATE,
USEPA REGULATIONS
)
R90-2
(7-1—89 THROUGH
12-31-89)
)
(Rulemaking)
ORDER
OF THE BOARD
(by J.
Anderson):
On ~July
3,
1990, the
Board entered
a
final
Opinion
and Order amending the
RCRA hazardous waste rules
in
35
Ill.
Adm. Code
703
et
seq.
to conform with
USEPA amendments through December
31,
1989.
The Opinion allowed post-adoption
comment
through August
3,
1990.
The
Board
has
recei
ved
the
following
post-adopti
on.
comment:
PC
6
United States Environmental
Protection Agency
(USEPA),
received
July
17,
1990
PC
7
Illinois Environmental Protection Agency
(Agency), received
August
3,
1990.
PC
8
Big River Zinc
(Big River),
received July 24,
1990
PC
9
Big
River, motion
to address
the Board,
August
2,
1990
The Big River motion
to address the Board
(PC
9)
is
denied.
The Big River
conuient
(PC 8)
addresses the K066 listing which was
added
in R39-1,
and the
“Bevill
amendment”
exclusions
involved
in
this Docket,
in
Section
721.1O4(b)(7).
Big River
has
advised
the Board that,
on July
10,
1990,
the United
States Court
of Appeals
for the District of Columbia reversed
the USEPA action
in
adding KO66,
and
remanded the listing
to USEPA for further
action.
(American Mining Congress
v.
USEPA)
This also causes
significant
confusion
as
to the status
of the
“Bevill
amendment” exclusions
involved
in
this Docket, which, for primary zinc producers,
are fundamentally linked
to
the KO66 listing.
Section. 22.4(a)
of the Act
required
the Board
to adopt
regulations
which
were “identical
in
substance”
with
USEPA’s
K065
listing.
Section
22.4
does
rot autho’ize the
Board
to
repeal
the
listing
prior
to
USEPA’s
regulatory
action
on
the
remand.
However,
the
Board
views
the
federal
court
opinion
as
applying
to
the
derivative
Board
rule
pending
Bodrd
action
in
adopting
the
USEPA
revisions
resulting
from
the
count
opinion.
(286-44,
12/3/87,
34 P88
89,
127)
With
respect
to
the
“Bevil
1
amendment”
exci
us
ions
in
thi
s
Docket
,
the
questi on
is
not
so
straightforward.
First,
the
LISEPA
rulemek i rg
was
rot
directly
before
the
Court
of
Appeals
so
that
the
effect
is
even
more
subject
114—477
-2—
to
interpretation.
Second, the Board did
rot complete
its
action
on this
Docket prior
to the Court
of Appeals decision.
In
view of
the substantial
confusion as
to
the status
of
the “Bevill
amendment”
exclusions,
as
applied
to
primary zinc producers,
pending USEPA
action
on the remand,
the Board will
add
an additional
amendment
as
Section
721.104(b)(7)(A)(vi).
This will
exclude
the waste from certain
primary zinc
production operations from the definition
of hazardous waste.
Coupled with
the Appeals Court decision, this will
put Big River back into the status
it
occupied
prior
to the KO66 amendments
and
the
“Bevill amendment” exclusions.
The complete text
is
as
follows:
Until
June
30,
1991, process wastewater, acid plant
blowdown and wastewater treatment
plant
solids
from
primary
zinc
smelting
and
refining,
except
for
wastewater
treatment
plant
solids
which
are
hazardous
by characteristic
and
which are not
processed.
This exclusion will
terminate
on ~iune30,
1991,
the
last day
on which
the
Board
can adopt
the
“Bevill
amendment” exclusions
consistent
with
federal
law.
(40 CFR 271.21(a)(3)
(1989).
In the event the
remand uncertainty
is
rot
resolved
by
that
date,
the
Board
will
regard
the
decision
in
American
Mining
Congress
as
binding
to
the
extent
applicable
to
the
Bevill
amendment
exclusions.
The Agency has also raised
a
number of questions about the adjusted
standards procedures
in Sections 724.213(e)
and 725.213(e).
Although these
were
largely
answered
in
the
Opinion
of
July
3,
1990,
the Board
will
repeat
the
response
here.
These
decisions
must
be
handled
as
adjusted
standards,
mainly because they include non-appealable decisions which are inconsistent
with
the Agency’s
permit
authority.
The
Agency
will
be
a
party
to
any
adjusted
standard
proceeding
under
this
rule.
The adjusted standard will
be
incorporated
into the RCRA permit,
and
all
reporting pursuant to the adjusted standard will
be directed to the
Agency.
Indeed,
the rule includes
a
number of
zipper clauses
which
may
require
the Agency to move the Board
to
reopen
the adjusted standard
to modify
the conditions
or terminate the
adjusted
standard.
Section. 724.213(d)
applies
to facilities which are
in
compliance with the
RCRA design
standards,
including
a double
liner,
and leachate collection
and
removal.
An adjusted standard
under Section 724.213(e)
is
required
for
surface
impoundments
which
do
not
meet
these
requl rements.
The
Agency cannot
issue
a RCRA permit for
continued operation of such units without
an adjusted
standard.
The operator
is
not required
to
submit
a
corrective action
plan
under
Secti on
724. Subpart
F
until
after
a
rd ease has
beer’ detected.
The
corrective
measures
plan
under
this
Section
is
a
corrective
action
plan
based
on
the
assumption
that
a
release
has
been
detected.
If
the
release
has
in
fact
been
detected
,
then
it
is
possible
that
the
operator
would
have
al
ready
filed
a
real
corrective
action
plan
with
the
Agency,
prior
to
requesting
an
adjusted
standard.
If
this
happens,
the
Agency
wifl
need
to
actively participate
in
-3—
the adjusted standards proceeding
to assure that
the permit
staff
reviews the
plan submitted to the Board,
and provides timely
input
into the Board’s
decision process.
Following approval
of
the adjusted
standard,
the Agency
will
be required to modify
any RCRA permit
in accordance with the adjusted
standard.
As
noted above,
the
adjusted standard will
be incorporated
into the RCRA
permit,
and
all
reporting will
be directed to the Agency.
If the Agency
learns that ore of the zipper conditions
has obtained,
the Agency may be
obligated to
request the Board
to reopen
the adjusted standard.
IT
IS
SO ORDERED.
I, Dorothy M. Gum,
Clerk
of the Illinois Pollution Control
Board,
hereby
certify that
the above Order was adopted
on the
9’~
day
of
~2i~c.c
c~5ç
1990, by
a vote of
(~,-o
.
Dorothy
M. G~n,Clerk
Illinois Pollution Control Board
114~-479