ILLINOIS
POLLUTION CONTROL BOARD
August
30,
1990
IN
THE
flATTER
OF:
)
RYO-1O
RCRA UPDATE, USEPA REGULATIONS
)
Rulemaking
TCLP
(1-1-90
THROUGH
3-30-90)
FINAL
ORDER.
ADOPTED RULE.
OPINION
OF
THE
BOARD
(by
J.
Anderson):
By
a
separate Order, pursuant
to Section 22.4(a)
of the Environmental
Protection Act
(Act),
the Board
is
amending the RCRA hazardous waste
regulations,
including the March
29,
1990, USEPA toxicity characteristic
leaching procedure
(TCLP).
The Board will
allow post—adoption coinnents
through September
ii,
1990.
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’t
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 Co~mnitteeon
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 January
1
through March
30,
1990.
The Federal
Registers utilized
are as follows:
55
Fed. Reg. 2354
January
23,
1990
55
Fed. Reg.
5340
February 14,
1990
55
Fed. Reg. 6640
February
26,
1990
55
Fed.
Reg. 8948
March
9,
1990
55 Fed.
Reg.
11798
March
29
1990
The USEPA amendments
include
several
site—specific delistings.
As
provided
in
35
Iii.
Adni.
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.
Subsequent
to
this batching
period, USEPA published two corrections,
which are discussed below
in connection with Section 721.124.
On June 29,
1990,
USEPA corrected
an entry to the TCLP listings.
(55
Fed.
Reg.
26987)
In
addition, on August
2,
1990,
USEPA
published
a
correction
to
the effective
dates.
(55 Fed.
Reg.
31387)
On March
1,
1990,
USEPA delegated delisting authority to
Illinois.
The
Board
has proposed
to
revise
its delisting rules
in R90-17.
The Board
has
also opened two
Dockets, R90-13 and
19,
to
receive USEPA’s
files
on pending
The Board
acknowledges the contributions of Morton Dorothy and Anne
Manly
in drafting
the Opinion
and Order.
ii
4—fl T~7
-2—
del istings.
In accordance with Section 7.2(b)
of
the Act, the Board
normally
“batches” USEPA actions
into six—month periods for adoption
as
State rules.
In this Docket
the Board
has departed from its
normal
practice, and has
taken
a three—month
batch.
The Board
has
done this
in order
to quickly adopt
the
new Toxicity Characteristic Leaching Procedure (TCLP)
rules from the March
29
Federal Register.
This
is changes
to the definition of “hazardous waste”
which will
become effective
as federal
rules
on September 25,
1990.
Since
they
are adopted pursuant
to the Hazardous and Solid Waste Amendments
(HSWA)
to
the RCRA Act, they will
supersede State law prior to adoption by the
State.
The
result would
be
an unsatisfactory situation
in which the
definition
of
“hazardous waste”
would
be substantially different
in State
and
federal
law,
pending State action.
PUBLIC
COMMENT
The proposal appeared
on June
22,
1990,
at
14 Ill. Reg.
9706.
The Board
has received the following public comment:
PC
I
Metal
Finishing Research Corporation,
July 5,
1990
PC
2
United States Environmental
Protection Agency
(USEPA), July
17,
1990
PC
3
Chemical Waste Management,
Inc.,
August
6,
1990
PC
4
Administrative Code Division, August
8,
1990
PC
5
Small Business Office, Department
of Commerce
and Community
Affairs
(OCCA), August 8,
1990
PC
6
I1linois Environmental Regulatory Group
(IERG), August
13,
1990
PC
7
Illinois Environmental Protection Agency
(Agency), August
20,
1990
PC
8
Agency,
second
set
of
comments,
August
22,
1990
PC
9
Joint
Committee on Administrative Rules
(JCAR),
July
31
through August
3,
1990
PC
10
IERG, supplemental
cornents, August
27,
1990
PC
11
Small
Business Office,
DCCA,
revised
comments, August
29,
1990.
Public comment
in
this matter was due August
6,
1990.
IERG and
the
Agency
filed
notions
to file
instanter.
The motions
are
granted.
The Administrative Code Division reviewed the
proposal
for compliace with
rule formats.
(PC
4)
The DCCA Small Business Office determined that
there
is
no small
business impact,
since these
rules
adopt federal
standards.
(PC
5)
ii 4—fl2S
—
However,
in
its
revised coments, DCCA suggested that
the failure
to adopt
the
delayed effective date for the TCLP test for
small
quantity generators,
discussed
below, would have
a negative impact
on
small
business.
(PC
11)
JCAR sent
a
collection
of letters addressing each Part,
which have
beer.
grouped
into a single public comment.
(PC
9)
JCAR determined
that it had
no
comments.
Most of the remaining comments addressed the phase-in
of the TCLP test.
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
it must enter
an
“extension of
time”
Order.
The Board
anticipates filing these
rules
significantly
in
advance of January
1,
1991,
the nominal
due date of this batch.
HISTORY
OF
RCRA,
UST and UIC 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
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
Ill.
Reg.
4828,
Ap’il
23,
1982.
R82—18
51
PCB
31,
January
13,
1983,
7
111.
Reg.
251$,
March
4,
1983.
Illinois received
Phase
I
interim authorization on May 17,
1982
(47 Fed.
Reg. 21043).
—4-
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
U1C 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;
10 111.
Reg.
13274,
August
8,
1986.
R86-27
Dismissed
at
77 PCB
234, April
16,
1987
(Ito USEPA amendments
through 12/31/86).
R87—29
January
21,
1988;
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,
1988.
(711187
through
12/31/87).
R88—17
December
15,
1988;
13
111.
Reg. 478, effective December
30,
1988.
(1/1/88
through 6/30/88).
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).
R90-5
Dismissed March
22,
1990 (12/1/89
through
12/31/89)
R90-14
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 26,
1983,
7111.
Reg.
13999,
October
28,
1983.
R83—24
55 PCB 31, December
15,
1983,
8 Ill. Reg.
200, January 6,
1984.
On September
6,
1984,
the Third District Appellate Court upheld the
Board’s
actions
in adopting R82-19 and R83-24.
(Cornonwealth Edison
et
aT.
V.
IPCB,
127 Ill.
App.
3d 446;
468
NE
2d
1339
(Third 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)
114—939
—5—
R85—22
67 P~B175,
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 457, October
23,
1986;
10 Ill. Reg. 20630, December
12,
1986.
(2/1/86
——
3/31/86)
R86—23
75
PCB 306,
February
5,
1987;
and
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
82 PCB 391, 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;
11 111.
Reg.
16698,
October
16,
1987.
R87—39
Adopted June
14,
1988;
12
Ill.
Reg.
12999,
August
12,
1988.
(7/1/87
--
12/31/87)
R88-16
November
17,
1988;
13
Ill.
Reg. 447, effective December
28,
1988
(1/1/38
--
7/31/88)
R89—I
Septemberj3, October
18 and Movember
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)
R9O—2
Adopted July
3
and August
9,
1990 (7/1/89 through 12/31/89)
R90-1O
This Docket
(1/1/90 through
3/31/90)
R9O—11
Next RCRA Docket
(4/1/90 through 6/30/90)
P90-17
Proposed July
19,
1990;
RCRA Delistings
(3/1/90)
Illinois received
final
authorization
for the RCRA program effective
January
31,
1986.
Additional
components wee authorized
on Marcn
1,
1990.
The Underground Storage Tank rules were adopted
in P36—i ard R36-28,
which were RCRA update Dockets discussed above.
They
are currently being
handled
in their own Dockets:
R88—27
April
27,
1989;
13
Ill.
Peg.
9519, effective June
12,
1989
1
1’~—’~31
-6-
(Technical
standards, September
23,
1989)
R89-4
July 27,
1989;
13
Ill. Reg.
15010, effective September 12,
1989
(Financial
assurance, October 26,
1989)
P89—10
February 22,
1990;
14 Ill. Reg.
5797,
effective April
10,
1990
(Initial
update, through
6/30/89)
P89-19
April
26,
1990;
14 Ill. Reg.
9454,
effective June
4,
1990
(fiST
State Fund)
R90—3
June
7, 1990;
(7/1/89
—
12/31/89)
P90-12
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 PCB 247, November 21,
1984;
8 Ill.
Reg.
24562, effective
December 11,
1984.
This was repealed by R85-22, 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
Envirite:
R85—2
6g PCB 314,
April
24,
1986;
10 Ill.
Peg.
8112,
effective May
2,
1986.
P87-30
June 30,
1988;
12
Ill. Peg.
12070,
effective July
12,
1988.
As noted above,
P90—17
is
pending
to address delisting procedures
before
the Board.
The Board
has
opened
two Dockets
to
address delistings pending
before USEPA:
P90—18
USX
Corporation,
Southworks
R90-19
Woodyard Governor
The Board has
procedures to
be followed
in cases
before
it
involving the
RCRA regulations:
R84—10
62 PCB 87,
349, December 20,
1984 and January
10,
1985;
9 111.
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 P85—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:
11 4
-~~
32
—7—
R81—25
60
PCB
381,
October
25,
1984;
8
Ill.
Peg.
24124,
December
4,
1984;
R83—28
February
25,
1986;
10
Ill.
Peg.
4875,
effective
March
7,
1986.
R86—9
Emergency regulations
adopted at
73 P03
427, October
23,
1986;
10 Ill. Peg.
19737, 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?
In
the
formulating
the
State
rules,
the
Board
has
almost
always
changed
“Regional Administrator”
to
“Agency”.
However,
in some situations
“Regional
Administrator”
has
been changed
to “USEPA”
or ~‘Board11.
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 sion.
The regulations will
eventually, require
a RCRA permit for each HWH
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
appropriate
for 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
meaningful
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-existir.g
permit
relationship which
can
easily be used
as
a context
for Agency decision.
If
the action
I
14—933
-8-
concerns
a person who does not
have
a
permit,
it
is more difficult tG
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,
rather
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 Ill. 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 the
variance.
Board variances are:
temporary;
based
on arbitrary 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
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 Ill.
Adm. Code
102 or 106.
GENERAL SUMMARY
OF
USEPA ACTIONS
The following
is
a general
description
of the USEPA actions during this
update period:
January 23,
1990
Mineral Processing Wastes
February
14, 1990
Delisting of Zirconium Phosphate Sludges
February 26,
1990
Response
to
remand
on BDAT preference
March
9,
1990
Additions
to Analytical
Testing Methods
March
29,
1990
TCLP
EFFECTIVE DATE
FOR TCLP
The
issues
raised
in
the public comment
focus
on the effective date
of
the TCLP test.
These
coninents will
be addressed
in
this portion
of the
Opinion,
rather than
in the Section-by-Section discussion.
ii 4—934
—9—
The regulatory definition
of “hazardous waste”
has two basic
components.
A waste can be hazardous
if:
the waste
is
“listed”
by
its
name
or the name of the process which produces
it;
or,
if the waste exhibits
a
hazardous
“characteristic”.
There
are presently four “cnaracteristics”:
ignitability, reactivity,
corrosivity
and “EP toxicity”.
This rulemaking
replaces the
“EP toxicity”
(“extraction procedure”) characteristic with
the
“toxicity characteristic”,
which
is measured by
the
“TCLP”
(“toxicity
characteristic leaching procedure”)
test.
The EP toxicity and TCLP
tests are similar
in their basic
concept:
they
are measures
of the tendency of
a waste to
leach
toxic
constituents under
conditions likely
to exist
in
a
landfill.
The TCLP test differs
in
part
in
that,
while the EP toxicity test examined 14 toxic
constituents,
the TCLP test
examines 40 constituents.
While the EP toxicity
test looked mainly
at heavy
metals
and pesticides,
the TCLP test adds many organic constituents,
including
commonly used industrial
solvents and chemicals.
The TCLP test
is
expected
to
expand
the definition
of hazardous waste
to include more wastes than was
the
case using the EP
toxicity test.
The USEPA rules
specifying the TCLP test become effective on September
25,
1990.
(55 Fed. Reg.
11850,
March
29,
1990)
The
TCLP test
is mandated
by the
1986 Hazardous
and Solid Wastes
Amendments
to
the federal
RCRA Act (“HSWA”).
A HSWA-driven amendment to the
USEPA rules
becomes effective
in
authorized states upon the effective date of
the USEPA rule.
(55 Fed.
Reg.
11646,
March
29,
1990)
The effect
of this
is
that the additional
hazardous wastes
brought
in
by the TCLP test
will
be
regulated
in
Illinois by USEPA pending adoption of the TCLP test by
Illinois,
and authorization by USEPA.
Obviously this has
the potential
to
produc’e
confusi on.
Immediate Board
action
on these
rules
is
not required
by either State
or
federal
law.
Section 7.2 of the Act gives
the Board
until
March
29,
1991,
to
adopt these
rules.
Moreover, 40 CFR 271.21(e)(2)(iv)
gives
the State
until
June 30,
1991,
to adopt
these amendments.
However,
neither provision
prohibits earlier action.
If the Board
rules become
effective on September 25,
1990,
the
split
between
the State
and federal
rules could
be avoided.
We are not addressing
the
question of whether adoption of the TCLP test
may have ramifications regarding additional
Illinois hazardous waste programs
which utilized the USEPA definition of
“hazardous waste”
at the
time of their
adoption.
At
the USEPA level
the additional
persons who
enter the hazardous waste
program by
reason
of
the TCLP
test face minimal
additional
paperwork.
40 CFR
262.12
requires
the generator to obtain
a USEPA identification number.
40 CF~
263.13 similarly requires
a transporter
to obtain
an identification number.
40 CFR 270.1(b) requires hazardous waste management
(HWM)
facilities
to file
an amended Part A application within
90 days.
On
the
other hand,
the
additional
State provisions mostly require
an application
and Agency action
before
the person
is
allowed
to take action.
Two cormnonters question whether
the Agency will
be able to
act quickly enough
to
avoid
a situation
in
which
114-9Th
-10—
generators would
be forced
to
store hazardous waste.
(PC
3
and 6)
On the other
hard,
the Agency urges the Board
not
to delay the effective
date beyond September 25,
1990.
The Agency states
as
follows:
Also,
the Agency notes that much
of the liquid waste
that
is expected to
be hazardous under the TCLP test
is presently addressed
under
“generic” waste
stream
authorizations
at
non-land disposal
facilities.
The
“generic” waste stream authorization allows
a specific
type of waste
to
be
accepted from a number of
different generators
instead
of requiring
a specific
waste
stream authorization for each
individual
generator.
Since much of the liquid waste that
is
expected
to
be
hazardous under the TCLP test
is
presently addressed under “generi c” authorizations,
fewer authorizations will
need to
be modified than
would otherwise be the case if specific waste
stream
authorizations existed from each individual
generator.
Also, most existing “generic” waste stream
authorizations to
accept waste that
is
hazardous by
characteristic will
not
require modification to
accept
wastes that
fail
the TCLP test for existing waste
codes.
Of
course, non-liquid hazardous waste
destined
for RCRA landfills would
still
have to
receive
an
individual
waste stream authorization
under Section
39(h)
of the Act.
(PC
7,
p.
5;
PC
8)
In addition, since the USEPA rules were promulgated
on March
29,
1990,
the regulated community will
have
had
six months
to apply the TCLP test
and
seek any new or modified State
authorizations.
Based largely
on the assurances of the Agency that
it
is prepared to
administer the State aspects
of this program,
the Board sees no need to delay
the effective date beyond September
25,
1990.
In addition,
the Board
notes
that there
is
still
nearly
a month
left
for generators
to get
the necessary
applications
on
file before these rules become effective.
The Board will seek to
file these
rules
a
few
days
in
advance of
September 25,
1990, but with
a delayed effective date.
SMALL QUANTITY GENERATORS
The Preamble
to the March
29 rules
includes
a
statement that there
are
delayed compliance dates
for the TCLP.
(55 Fed. Peg.
11850,
March
29,
1990)
While
large
quantity generators
are required
to comply by
September 25,
1990,
small
quantity generators
(SQGs)
have until
March
29,
1991.
The
latter
provision does not
appear
to
be
contained
in the body of the rules,
and indeed
appears
to
be contradicted
by
40 CFR 271.1.
The Board
requested comment
as
to
whether
‘it
ought
to add a rule with
a delayed compliance date for SQGs.
The USEPA delayed effective date applies
to SQGs of 100 to
1000 kg/month
(55 Fed. Reg.
11850,
March
29,
1990)
114—936
—11—
On August
2,
1990,
USEPA published
a
correction
to the delayed effective
date.
(55 Fed. Peg. 31387)
This indicates that SQGs
who
became subject
to
regulations
as
a result
of the TCLP had,
we
are uncertain, until
October
31,
1990
(See dates),
or
until
three months
after the August
2,
1990
publication
(See Correction Notice),
to
notify USEPA.
it also advised generators wishing
to continue using the EP toxicity test that,
although
the
test was
removed
from the regulations,
it was available as Method
1310
in SW 846,’”Test Methods
for Eval uating Solid Wastes,
Physical /Chemical Methods”.
Note that we are
not
including
in the regulations
any
provision concerning
the time for SQG
notification.
Generator notification
is
governed by Section
722.112, which
is
not involved in this Docket.
That Section
requires generators
to
apply
to
USEPA for
a generator identification number.
Since USEPA has retained this
authority,
the Board
has deferred to USEPA for the
time requirements.
IERG has asked the Board
to write
a
rule with
the delayed compliance date
for
SQGs.
(PC
6)
On
the
other
hand,
the Agency opposes
this action.
The
Agency
claims
that
the
Board
must
adopt
regulations
which are identical
in
substance with the USEPA
regulations.
The Agency believes that, while
the
preamble is
helpful
in interpreting the
federal
regulations, the preamble is
not
itself
a
regulation.
(PC
7)
The
Board
notes,
however,
that the Agency
is
maintaining
a position which
is contradictory to
its position
in
a recent
identical
in substance rulemaking.
in R88—26,
the Agency
requested many
modifications to the verbatim text of the USEPA rules, based
on
language
in
USEPA
preambles.
(R88-26,
Opinion
of
August
9,
1990,
p.
30,
31)
The
Board
believes, contrary
to the Agency’s position, that,
whenever
it
learns, based
on
the preamble, that USEPA
has omitted
a
provision which would
be
a “rule”
within the meaning
of the Illinois APA,
it must include the rule within the
Board
rules.
Accordingly,
the Board
has
added the following note to Section
721. 124:
BOARD
NOTE:
Generators
are
required
to
use
the
TCLP
test fdr the hazardous waste determination under
35
Ill. Adm. Code 722.120
as
of September 25,
1990.
Pro.’ided, however,
that,
as
specified at
55 Fed.
Peg.
11850,
March
29,
1990,
small
quantity generators
of
100
to
1000 kg! month,
as defined
in
35 ill.
Adrn.
Code
721.105, may continue to use the EP toxicity test
until
March
29,
1991.
The EP
toxicity test
is Method
1310
in
SW 846,
“Test Methods
for Evaluating Solid
Wastes, Physical/Chemical Methods”,
incorporated
by
reference
in
35
Ill.
Adm.
Code
720.111.
STATUTORY
REFERENCES
The
Board
has
generally
changed
references
to
the
1987
and
1988
Supplement
to
the
Illinois
Revised
Statutes
to
the
1989
Edition,
which
is
now
available.
SECTION BY SECTION DISCUSSION
Section 720.110
The
definition
of
“designated
facility”
in
40
CFR
260.10
was
amended
at
55
Fed.
Reg.
2353.
This
correlates
with
the
amendments
to
Section
722.
123,
1
1.’
937
-12-
discussed
below.
The
main
purpose
of
this
amendment
is
to
establish
a
rule
dealing
with
a
situation
in
which
a
waste
is
listed
in
the
generator’s
state,
but
has
not
yet
been
listed
in
the
disposal
facility’s
state.
The
rule
requires
the
generator
to
sign
a
contract
with
the
transporters
and
disposers,
requiring
them
to
return
manifest
copies
to
the
generator.
There
are
problems
with
the
format
of
the
USEPA
definition,
in
that
it
has
numbered
subsections,
without
indentation,
and
then
has
a
“hanging
paragraph”
following
the
numbered
subsections.
These
are
both
prohibited
by
the
Code
Unit.
Note
that
it
is
impossible
to
give
a
unique
citation
to
the
hanging
paragraph,
and
the
definition
is
ambiguous
as
to
which
of
the
numbered
provisions
relate
to
the
hanging
paragraph.
The
Board
has
fixed
this
by
indentation.
The Board
notes that
this USEPA definition
is
really
a substantive
provision.
The “designated
facility” ought
to
be defined
simply
as the
facility
which
the
generator
designates.
The
limitations
ought
to
be
stated
in
Part
722.
Note
that,
as
the
USEPA
rule
is
structured,
if
the
generator
designates
an
unpermitted
facility,
it
is
not
a
“designated
facility”,
so
the
generator
can
only
be
charged
with
failing
to
designate
a
facility,
not
with
designating
an
unpermitted
facility.
Section
720.111
This
Section
is
drawn
from
40
CFR
260.11,
which
was
amended
at
55
Fed.
Peg.
8999.
The
Section
has
been
amended
to
update
the
incorporation
by
reference
of
“Test
Methods
for
Evaluating
Solid
Wastes”.
The
USEPA
amendment
specifies
methods
within
the
document.
This
is
not
necessary
in
the
incorporation
by
reference
Section.
The
entire
document
is
incorporated
at
this
point.
Certain
methods
are
used
in
later
Sections.
Section
721.104
This
Section
is
drawn
from
40
CFP
261.4,
which
was
amended
at
55
Fed.
Reg.
2353
and
11798.
The
latter
amendment
concerns
the
TCLP.
The
former
concerns
the
exclusion
from
the
definition
of
“hazardous
waste”
of
certain
mining
wastes,
which
is
in
Section
721.104(b)(7).
This
amends
language
which
was
recently
amended
in
P90-2.
The
striking
and
unde~lininghas
been
reformulated
to
show
the
new
base
text.
Because
of
the
extensive
format
changes
in
the
USEPA
rules,
it
is
too
confusing
to
attempt
to
show
the
changes
in
a
detailed
strike
and
underline
format.
Rather,
the
entire
text
adopted
in
R90—2
is
shown
as
struck,
and
the
entire
new
text
underlined.
However,
in
spite
of
the
major
format
change,
there
is
little
substantive
difference
between
the
text
adopted
in
P90-2
and
this
Docket.
The
major
change
to
the
exclusions
is
the
elimination
of
the
separate
lists
for
wastes
which
are
definitely
excluded,
versus
conditionally
excluded.
All
of
the
wastestreams
listed
are
excluded,
subject
to
the
same
proviso
that
they
are
under
review.
The
proviso
actually
has
no
regulatory
function.
The
wastes
are
excluded
11’,
1~)
—
A
.,)
—
pending
a
report
to
Congress
and
a
regulatory
determination
of
their
status.
I.e.,
they are excluded until
the Section
is
amended.
The Board
has therefore
omitted
this
language.
Another
change
is
that
several
wastes
have
been
dropped
and/or
consolidated
on
the
list.
Subsections
(b)(7)(B)(i),
(vi),
(xi),
(xii),
(xvii)
and
(xviii)
in
the
P90—2
ace
missing
and/or
consolidated.
In
R9O—2,
at
the
request
of
Big
River
Zinc
Company,
the
Board
added
Section
721.1O4(b)(7)(A)(vi),
which
excludes
certain
primary
zinc
wastestreams
until
June
30,
1991,
pending
USEPA
action
on
a
mandate
from
a
federal’
Court
of
Appeals.
(Order
of
August
9,
1990)
The
substance
of
this
provision
has
been
carried
over
into
the
revised
bas.e
text
in
this
Docket.
However,
it
has
been
renumbered
to
Section
104(b)(7)(U),
to
be
consistent
with
the
new
USEPA
numbering
scheme.
There
are
some
minor
changes
in
wording,
mainly
changing
such
terms
as
“smel ting”
to
the
more
general
“processing”.
The
TCLP
amendments
mainly
change
references
to
the
new
test.
Also,
Section
721.104(b)(10)
has
been
added
to
exclude
wastes
from
petroleum
UST
corrective
action.
The
Board
has
referenced
its
UST
rules
in
35
Ill.
Adm.
Code
731.
There
was
a
typo
in
the
proposal
at
Section
721.104(b)(9):
the
omission
of
“solely
for
arsenic”.
(PC
3)
Section
721.108
This
new
Section
is
drawn
from
55
Fed.
Peg.
11862.
It
adds
an
exclusion.
for
P08
wastes
regulated
under
TSCA,
under
40
CFP
761,
which
is
already
incorporated
by
reference
in
Section
721.111.
This
is
apparently
needed
since
the
TCLP
test
will
show
parameters
which
are
associated
with
PCBs.
Note,
however,
that
PCBs
themselves
are
not
in
the
TCLP
list.
The
USEPA
Section
has
a
number
of
grammatical
problems
which
obscure
the
meaning:
The
disposal
of
PCB—containing
dielectric
fluid
and
electric
equipment
containing
such
fluid
authorized
for
use
and
regulated
under
part
761
of
this
chapter
and
that
are
hazardous
only
because
they
fail
the
test
for
Toxicity
Characteristic
(Hazardous
Waste
Codes
D018
through
D043
only)
are
exempt
from
regulation
under
parts
261
through
265,
and
parts
268,
270,
and
124
of
this
chapter,
and
from
the
notification
requirements
of
Section
3010
of
RCRA.
(40
CFR
261.8)
(Emphasis
added)
There
appear
to
be
two
grammatical
problems
with
this.
First,
the
subject
and
verb
need
to
agree
in
numbe~.
Second,
a
participial
phr~sc
(“authorized
for
use”)
appears
to
be
in
parallel
with
an
adjective
clause
(“that
are
hazardous”).
Also,
there
are
not
nearly
enough
comlinas.
The
Board
needs
to
fix
these
pursuant
to
Section
7.2(a)(7)
of
the
Act.
However,
it’s
114
-14-
not
altogether
clear
what
USEPA
intends.
The
Board
solicited
comment
as
to
how
to
correct
this
Section.
Chemical
Waste
Management
provided
useful
suggestions.
(PC
3)
Regulations
governing
“The
disposal
of”
really
don’t
belong
in
Part
261,
which
is
the
definition
of
“hazardous
waste.”
Rather,
they
belong
in
Parts
264
and
265.
The
entire
provision
would
make
more
sense
if
“PCB ‘fluid
and
electric equipment” were the
subject,
in which case “are” would
be correct.
This
appears
to
be
consistent
with
USEPA’s
intent.
(55
Fed.
Peg.
11841,
March
29,
1990)
(PC
3)
The
Board
has
fixed
these
so
the
provision
reads
as
follows:
Polychlorinatedbiphenyl—(PCB—)containing
dielectric
fluid
and
electric
equipment
containing
such
fluid,
which
are
authorized
for
use
and
regulated
under
40
CFR
761,
incorporated
by
reference
in
35
Ill.
Adm.
Code
720.111,
and
which
are
hazardous
only
because
they
fail
the
test
for
toxicity
characteristic
(hazardous
waste
codes
0018
through
D043
only),
are
exempt
from
regulation
under
35
Ill.
Adm.
Code
702,
703,
705,
721
through
725,
and
728,
and
from
the
notification
requirements
of
Section
3010
of
the
Resource
Conservation
and
Recovery
Act.
Section
721.124
This
Section
is
drawn
from
40
CFR
261.24,
which
was
amended
at
55
Fed.
Peg.
11798.
The
former
EP
toxicity
characteristic
has
been
replaced
with
the
“toxicity
characteristic”,
measured
by
the
TCLP.
Contaminants
D018
through
0043
have
been
added.
These
are
mainly
organic
contaminants.
0031
is
the
entry
for
“Heptachlor
(and
its
hydroxide)”.
40
CFR
261,
Appendix
VIII
includes
an
entry
for
“Heptachlor
epoxide”,
but
not
the
hydroxide.
USEPA
published
a
correction
at
55
Fed.
Reg.
26987,
June
29,
1990,
which
the
Board
hds
followed.
(PC
3)
Section
721.130
This
Section
is
drawn
from
40
CFR
261.30,
which
was
amended
at
55
Fed.
Peg.
11798.
The
amendments
change
the
terminology
to
reflect
the
TCLP.
40
CFR
261.30
is
worded
as
“The
Administrator
will
indicate
his
basis
for
listing...”
In
original
adoption
of
this
Section,
this
was
plac~dinto
passive
voice
appropriate
to
the
Board’s
role
in
the
listing
process.
Section
721.131
This
Section
is
drawn
from
40 CFR 261.31, which was amended
at
55 Fed.
Peg.
5342.
The
amendment
changes
listing
F019
to
exlude
zirconium
phosphating
in
aluminum
can
washing.
This
Section
was
amended
in
P90—2.
The
proposal
has
been
reformulated
to
show
P90-2
as
the
base.
114
~4fl
—15—
The
1989 Edition
of the CFR
has the F019 entry out of numerical
order.
This situation has existed for several
years,
and
is
reflected
in
the
current
version of
the Board
rule.
The Board
has moved this entry
to
its
correct
place,
and
left
a
note
for
any
reader
who
might
be
expecting
the
entry
to
be
out
of
order.
Section 721.Appendix
B
This Section
is drawn
from 40 CFR 261, Appendix
II, which was amended
at
55
Fed.
Reg.
11798.
This
is
the
TCLP
test.
The
Board
has
incorporated
this
Appendix
by
reference,
as
it
did
for
the
EP
toxics
test.
Section
7.2(a)(4)
of
the
Act
authorizes
the
Board
to
incorporate
USEPA
rules
by
reference
where
it
will
not
cause
confusion
to
the
affected
public.
The
Board
has
generally
utilized
incorporation
by
reference
for
detailed
laboratory
methods.
This
portion
of
the
rules
is
likely
to
be
used only by specialists who work
from the CFR anyway.
It does not
involve
applicability
statements
or
cross
references,
which,
if
not
changed
to
State
references,
would
leave
the
rule
incomplete.
Section
721.Appendix
C.
This Section
is
drawn from 40 CFR
261, Appendix III, which was
amended
at
55
Fed.
Peg.
8948.
This
is
the
Appendix
which
specifies
analytical
methods
for
solid
waste.
As
is
discussed
above,
this
correlates
with
the
incorporation
by
reference
of
the
new
edition
of
“Test
Methods
for
Solid
Waste.”
Section
722.123
This
Section
is
drawn
from
40
CFR
262.23,
which
was
amended
at
55
Fed.
Reg.
2354.
it
adds
Section
722.123(e),
concerning
manifest
copies
for
waste
which
is
listed
in
the
generator’s
state,
but
has
not
yet
been
listed
in
the
disposer’s
state.
The
generator
is
required
to
sign
a
contract
with
disposers
and
transporters
providing
for
return
of
manifest
copies
pending listing
in
the
disposer’s
state.
Section
724.401
This
Section
is
drawn
fro;n
40
CFR
264.301,
which
was
amended
at
55
Fed.
Peg
11798.
This
Section
changes
the
terminology
to
correspond
with
the
TCLP
Note
that
monofills
may
take
waste
which
is
hazardous
only
because
of
the
original
0004
through
0017,
not
hazardous
wastes
under
the
new
designations:
i.e.
solvents.
Section
725.321
This Section
is drawn
from 40 CFR
265.221,
which was amended
at
55 Fed.
Peg.
11798.
This
amendment
changes
the
terminology
to
correspond
with
TCLP.
The Board
has corrected two typos,
in Section 725.321(d)(2)(A)(i
),
“in”
to
“is”,
and
“it
is”
to
“is”.
Both
of
these
typos
were
copied
from the
Federal Register,
and are
still
present
in
40
CFR
265.221(d)(2)(i)(A)
and
(B).
114
“i.’,f
-16-
Section 725.373
This Section
is
drawn from 40 CFR 265.273, which was amended
at
55 Fed.
Reg.
11798.
It
has
been amended
to
use TCLP terminology.
Section 728.Appendix A
This Section
is
drawn from 40 CFR
268, Appendix I,
which was amended
at
55 Fed. Reg.
11798.
The TCLP procedure has
been moved
to Part 721.
This
Opinion
supports
the
Board’s
Order
of
this
same
day.
The
Board
will
allow
post—adoption coments through September 11,
1990.
I, Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Beard, hereby
certify that the
above Opinion was adopted
on the ~‘~?day
of
~
~--
1990,
by
a vote of
7—0
•
.1
Illi
an
Control
Board
ii 6- ~4
2
