ILLINOIS
POLLUTION CONTROL BOARD
May
25, 1989
IN
THE
MATTER
OF:
RCRA UPDATE, USEPA REGULATIONS
)
R89-1
(8-1-88 THROUGH 12-31-88)
)
PROPOSAL
FOR PUBLIC
CONIMENT
PROPOSED 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 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,
and 280.
This rulemaking updates
Illinois’ RCRA rules
to
correspond with federal
amendments during
the period August
1
through December
31,
1988.
The Federal Registers utilized are
as
follows:
52
Fed. Reg. 46963
December
10,
1987
53 Fed.
Reg.
31211
August
17,
1988
53 Fed.
Reg.
33950
September
1, 1988
53 Fed.
Reg. 34086
September
2,
1988
53 Fed.
Reg. 35420
September 13,
1988
53 Fed. Reg. 37045
September 23,
1988
53 Fed. Reg.
37934
September 28,
1988
53 Fed. Reg.
39728
October
11,
1988
53 Fed. Reg.
41649
October
24,
1988
53 Fed. Reg. 43881
October
31,
1988
53 Fed. Reg. 43883
October 31, 1988
53 Fed. Reg. 45090
November 8,
1988
In R87-39 the Board inadvertently omitted
a portion
of
the December
10,
1987 Federal
Register.
After
noting this error, the Board
reserved Docket
R88-29 for the correction.
However,
it was
not possible
to prepare
a proposal
significantly
in
advance
of this update.
The Board
has therefore closed R88—
29,
and will
address the December
10, 1987 Register
in this Docket.
In R88-16 the Board expanded the update
period
to
seven months
to
include
July,
1988,
in
order
to allow for quicker adoption
of certain important
amendments.
This update
will
be
shortened to five months
to
get the updates
back
on their normal
times.
99—377
—2-
On July 26 and September 26,
1988, USEPA adopted amendments
to the UIC
permit procedures which
are reflected in
35 Ill.
/\dm.
Code 705.
(53 Fed. Reg.
28147
and 37410.
These will
be
adressed
in R89-2.
This update will
also
include
a U1C amendment
to Section 702.161, which
is
derived from
one of the
Federal Registers otherwise addressed
in R89-2.
On September 23
and October
26,
1988,
USEPA adopted major revisions to
the Underground Storage Tank
(UST)
program, which
is mandated
by the Resource
Conservation and Recovery Act.
The Board has utilized Docket R88—27 and R89-4
to address
these amendments.
Subsequent amendments
to the USEPA UST rules
will
be
addressed
in that Docket
or
a
separate UST update Docket.
After the
UST program
is
established,
the Board will
consider’ recombining the RCRA and
UST updates.
On September 23,
1988,
USEPA also published
a
“clarification”
as
to the
status
of
mixed
radioactive
and
hazardous
waste.
Al though
this
involved
no
amendment to
the USEPA rules,
it
has
been
included
in
the
list
since,
as
discussed below,
it could
result
in
a need
to amend the Act or Board rules.
The USEPA amendments
include several
site—specific delistings.
As
provided
in
35 Ill. Adm. Code 720.122(d), the Board will
not propose
to
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.
The following Opinion
includes
a large number
of specific requests for
cornent on
issues.
The Board will construe silence
as
an affirmative
statement that proposed language
is acceptable.
In
situations
in which
alternatives are discussed,
the Board will construe silence
as
an affirmative
statement that either
alternative
is
acceptable.
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:
102
RCRA and UIC
Permit Programs
703
RCRA Permit Program
704
UIC
Permit
Program
705
Procedures
for Permit
Issuance
709
Wastestream
Authorizations
120
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
Special procedures
for RCRA cases
are included
in
Parts
102, 103,
104 and
9
9—378
-3-
106.
Adoption
of these regulations
has proceeded
in
several
stages.
The Phase
1
RCRA regulations were adopted
and amended
as
follows:
R8l-22
45
PCB 317, February
4,
1982,
6
ill. Reg. 4828,
April
23,
1982.
R82—l8
51
PCB 31,
January
13,
1983,
7 111. Reg.
2518,
Harch
4,
1983.
Illinois
received
Phase
I
interim authorization
on
May
17,
1982
(47
Fed.
Reg. 21043).
The U1C regulations
were adopted
as follows:
R81—32
47 PCB
93, May 13,
1982;
October
15,
1982,
6 111. Reg. 12479.
The UIC regulations were amended
in R82—l8, 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 PCB 234, April
16,
1987
(No 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.
(7/1/87
through
12/31/87)
R88-17
December
15,
1988;
13
Ill.
Reg.
478, effective December
30,
1988.
(1/1/88 through 6/30/88)
R89—2
Next Docket
(7/1/88 through 12/31/88)
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-l9
53 PCB 131, July 26, 1983,
7
Ill. 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
al.
v.
IPCB,
127 Ill. App.
3d 446;
468 NE
2d
1339 (Third Dist.
1984).)
The Board updated the RCRA regulations
to
correspond with USEPA
99—379
-4—
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;
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
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.
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
(1/1/88
-—
7/31/88)
R89-1
This Docket
(8/1/88
—-
12/31/88)
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.
A major
revision was adopted
bt
the Board
in R88—27
on April
27,
1989.
The UST financial
assurance
rules
are pending
in R89-4.
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
99—380
—5—
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
69 PCB 314, April
24,
1986;
10
Ill. Peg.
8112, effective May
2,
1986.
R87-30
June 30,
1988;
12
Ill.
Peg.
12070, effective July
12,
1988.
The Board
has procedures
to
be followed
in cases
before
it
involving the
RCRA regulations:
R84—lO
62
PCB
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 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:
R8l-25
60 PCB
381, October
25,
1984;
8 Ill. Peg. 24124, December 4,
1 984;
R83-28
February 26,
1986;
10
Ill.
Reg. 4875,
effective March
7,
1986.
R86-9
Emergency regulations adopted
at
73 PCB 427, October
23,
1986;
10
Ill.
Peg. 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).
Hearings
on
permanent rules
are
pending.
DETAILED DISCUSSION
The Federal Registers involved
in
this rulemaking include the following:
December
10,
1987
Subpart
X, Miscellaneous Units
August
17,
1988
First Third waste bans
September
1,
1988
Liability Insurance
September
2,
1988
Revisions to Tank Systems rules
September 13,
1988
Listing
of
smelter wastes
September 23,
1988
Radioactive mixed waste
September 28,
1988
Three Tier Permit Modification Process
October
11,
1988
Statistical
Methods for Groundwater Monitoring
October
31,
1988
Delisting of
iron dextran and strontium sulfide
November
8,
1988
Manifest form
On September 23,
1988 USEPA published
a “Clarification
of Interim Status
Qualification Requirements for the Hazardous Components
of Radioactive Mixed
Waste”.
(53 Fed. Peg. 37045).
This concerns waste which
is
hazardous waste
99—3
81
-6-
and also
is
radioactive, but which
is
not
“source,
special
nuclear or
byproduct material” as defined
in the Atomic Energy Act.
This category
of
waste
has
always been regulated under RCRA,
but there
has
been substantial
confusion.
The Board
believes that
no change
is needed
either
to the Act
or
the Board rules
in
order to regulate this category of waste.
Specifically,
the Board believes that the definition
of
“hazardous waste”
in Section 3.~5of
the Act
is consistent with this interpretation,
as
is the exclusion
in
35 111.
Adm. Code 721.104(a)(4).
The Board has therefore proposed
no change,
but
solicits coment.
The proposal
has 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
are grar~aticallywrong,
or
appear to
say something other than what
was intended.
Others
do not
read
correctly when the Board
or IEPA
is substituted into the federal
rule.
The
Board
does not
intend
to make any substantive change
in
the
rules
by way of
these edits.
Section
702.104
This Section
is derived from 40 CFR 270.6,
which
is
a
short
incorporations
by reference Section.
All
but
one of these
documents
in
incorporated
by
reference
in Section
720.111.
The Board
has therefore
proposed to consolidate these lists
in
the latter Section.
This will
shorten
the
rules, ease maintenance of the incorporations by
reference file,
and avoid
inconsistencies
as
to editions.
Section 702.110
This Section
is
drawn from 40 CFR
144.3 and
270.2, which was amended
at
53 Fed. Reg.
34086 and 37934.
These add
or modify definitions for
“component”,
“elementary neutralization unit”,
“facility mailing list”,
“functionally equivalent component”
and “wastewater
treatment unit”.
The definition
of “elementary neutralization
unit”
has been amended
to
add
“tank system”
to the list of possible units.
This definition
is
used
in
Section 724.1O1(f)(6),
and other
places,
to
state the
scope
of
an
exemption
from the RCRA permit
requirement
and
standards.
The current definition of
elementary neutralization unit,
as modified
by the Federal Register,
reads:
...a device which:
is
used for neutralizing wastes —w~ehaFe
P4a~aP~e~is
wastes
-only because they exhibit the corrosivity
characteristic
This produces
a substantive change
in the definition which
is unrelated to the
other change,
and which USEPA probably did
not
intend.
Under the new federal
definition
a subjective test
is
introduced:
Is
tnat
the only reason
the
operator
is neutralizing the waste,
or
does he have
a hidden motive?
Furthermore,
consider
an acidic waste which contains
a toxic
component which
is unaffected by
the neutralization process.
Under the
new language,
since
neutralization
has no effect
on
the toxic component, the treatment unit would
99—382
—7—
be
an
elementary neutralization unit,
and exempt
from the
permit.
Under the
old language, the wastestreani would
be
hazardous both because
of corrosivity
and
the toxic
component,
so that
the treatment unit would
not
qualify
as
an
elementary neutralization unit.
It seems unlikely that USEPA intended this
about face on this definition.
The Board
has proposed
to leave
the
struck
language
in the definition.
Section 702.152
This Section
is
drawn from 40 CFR
144.51
and 270.30, which was amended
at
53 Fed. Reg.
37934.
The RCRA only provision
has been placed
in Section
703.247, discussed below.
Section
702.160
(UIC amendment)
This Section
is
drawn from 40 CFR 144.52(a) and
270.32(a),
the former
of
which was amended
at
53 Fed.
Peg.
28147.
This UIC amendment
is
otherwise
addressed in R89—2.
The Board
has proposed this amendment pursuant to this
Docket
to avoid having to comply with complex Code Unit requirements
which
arise when more than
one amendent
to
a Part
is
in
play at
a given
time.
The
amendment requires the Agency
to establish UIC permit conditions
based
on
new
requirements proposed
in R89-2.
Section
702.181
This Section
is drawn from 40 CFR
144.35 and 270.40, which
was amended
at
53 Fed. Reg. 37934.
The federal amendment
references the new
procedures
for
permit
modification
discussed below.
The existing federal
and State text
differ
in
a
substantive
way,
in
that,
while
a
RCRA
or
UIC
permit
provides
a
partial
shield
against federal
enforcement,
it
provides none under State
law.
The text has also been modified to
reference “reissuance”
of permits,
which
is
discussed below
in connection with Section 703.270
et seq.
Section
702.182 through 702.185
and 702.187
This Section
is drawn from 40 CFR 144.38 and 270.40, which was amended
at
53 Fed.
Reg.
37934.
The general
and RCRA only provisions
in
this and the
following Sections have been moved
to
new Sections 703.260
et
seq.,
and the
general
and
UIC only provisions have been moved
to Sections 704.260
et
seq.,
proposed in P89-2.
General
material
will
be repeated
in
Parts 703 and
704.
This format
change
is
necessitated
by
the extensive amendments
to the RCRA
permit modification procedures,
which are discussed
below.
Section
702.186
This Section
is
drawn from 40 CFR 144.40 and 270.43, which were not
amended during this update period.
It has
been included to correct
an
editorial
error
noted during review of these Sections.
The
federal
language
lists causes for terminating
a permit,
or denying a renewal
application.
The
language adopted
in P82-19 changed “terminating’
to
a reference to
revocation
by the Board under Title VI1I of the Act,
but
also allowed the Board
to
“deny”
a
permit.
Only
the
Agency
has
this
authority
under
Section
39
of
the
Act.
Accordingly,
the
Board
has
proposed
to
delete
the
reference
to
permit
denial.
99—383
-8-
The Board has considered adding
a
similar provision stating
that the
Agency can deny
a permit
if
grounds for revocation exist.
However, this
has
been rejected for two reasons.
First,
it seems
to limit the Agency’s
authority to deny
a permit.
Second, the
federal
language itself may be
inconsistent with the post-closure care permit
provisions
of 40 CFR
270.1(c)(5)
et seq.
(35 111. Adm. Code 703.159).
In certain
situations,
rather than deny an application,
the Agency should
issue
a
post-closure care
permit.
The
Board
solicits coment on this.
Section 703.183
This Section
is
drawn from 40 CFR 270.14(b), which was amended
at
53 Fed.
Reg.
46963.
The amendments correct and add
cross
references
to new Subpart
X.
The
Board has proposed to
reword Section 703.183(t)
to eliminate
a double
non-rule.
Section
703.184
This Section
is
partially drawn from 40 CFR 270.14(b)(11), which was not
amended during this update
period.
This Section
is being amended
to update
statutory references,
and
to correct language which could be
construed
as
an
incorporation by
reference.
40 CFR 270.14(b)(11), with necessary State modification, exceeds the
subsection
levels allowable under the APA,
so that the Board was
forced to
place the contents of the subsection into
a
separate Section, leaving
a cross
reference
in Section 703.183(k),
which
is
the
logical
place
to
look for the
equivalent.
The Sections
in
this Part include many “lists”, which include
both
very
short
and
very
long
elements.
Because
there
are
so
many
short
elements,
it
is
not practical
to break the list completely
and uniformly into
Sections.
Furthermore,
this would make it difficult
to reference the complete
list.
The Board was therefore forced
to
to
use
a somewhat confusing format
of
retaining the main federal Sections
intact,
but moving the
large elements
to
separate Sections, which are
cross
referenced from the main
list.
Section
703.184(a)
is
an Illinois Section which
has no
federal
counterpart.
This Section
is
the portion
of
the Part
B application
in ~ihich
the operator demonstrates
compliance with
the siting
requirements of Section
21(1) of the Act, which
has
been renumbered
from Section 21(k).
Section 703.184(c)
is
drawn from 40 CFR 270.14(b)(11)(iii).
This
concerns the
100 year floodplain
in the Part B application.
The existing
language could
be construed
as
an incorporation
by
reference of the flood
insurance maps
for
Illinois published by the Federal
Emergency Management
Agency.
If this an
incorporation by
reference,
the Board
is
required to
be
more specific as
to the documents, and to maintain
a set
for public
inspection
and copying.
Also, futurg amendments
could
not
be automatically referenced.
The
first
problem
with
this
is
that
the
vol ume of
the maps
is
such
that
the
Board
would
have
to
find
a
new head~~orters
to
house
then.
Since
chey
urn.
frequently
amended,
staff would have to
be added
to maintain the
collection.
Also,
the
prohibition
on
future
amendments
could
produce
a
conflict
between
the State
and federal
rules.
The USEPA Section
is ambiguous
as to whether
it
is incorporating the maps
99—384
-9-
by reference.
The Board has reworded the Section
to avoid such an
interpretation.
The
rule
is
really deferring to the judgment
of FEMA
as
to
the location of the
100 year floodplain,
rather than deferring to
an existing
document.
The Board
has
rewritten the rule to make this clearer.
Note that
the federal
(and State) rule allow the applicant to justify
a different flood
elevation,
although the FEMA map has to
be
included with the application,
if
one
exists.
Actually obtaining these maps took several
day’s
of
research.
The Board
is
concerned that the USEPA rule does not adequately
identify them so
as
to
make them available to the
public.
The Board
has therefore provided
references to the FEMA map distribution center,
and to
a
collection
at
the
Water Survey.
The USEPA rule calls
these
“FIA” maps.
This term does not appear
on the
maps
the Board
has obtained.
The Board believes that this agency
has been
replaced with
the “National Flood
Insurance Program”.
The Board
has
substituted this name into the
rule, but solicits coninent.
Section 703.209
This
new Section
is drawn
from 40 CFR 270.23, which
was
added
at
52 Fed.
Reg.
46694, December 10,
1987.
This was inadvertently omitted from R87—39.
This specifies the contents
of the Part B application for miscellaneous units
governed by
35
Ill.
Adm. Code 724.Subpart
X,
discussed
below.
This provision has been placed
in Section 703.209.
Section 703.208
is
reserved
for the equivalent
of
40 CFR
270.22, which appears
to
be
reserved.
40 CFR 270.23(b) first
requires “Detailed hydrologic, geologic,
and
meterologic
assessments
and land
use maps...”
However, the Section goes
on
to
provide:
If the applicant can demonstrate
that
he
does
not violate
the environmental
performance standards of §264.601
and
the Director agrees with such demonstration, preliminary
hydrologic, geologic,
and meteorologic assessments will
suffi ce.
This poses
several
editorial
problems.
First, while
the USEPA rule
is worded
as
a
personal decision of
the “Director”, Board rules
and
the Act
are
generally worded
as collective
decisions of the “Agency”.
Second,
while
the
conditional
starts with
“if the applicant
can demonstrate...”,
it then
goes on
to refer
to
“such demonstration”,
implying that the applicant must actually
make the demonstration.
A possible
rewording
is
as
follows:
if
the Agency determines that
the unit will
conform with
the environmental performance
standards of
35 Ill. Adm.
Code 724.701, preliminary hydrologic, geologic and
neteorologic assessments will
suffice.
This
is
intended to mean the same thing
as
40 CFR 270.23,
except that it
has been worded to clearly require
an
actual demonstration to the Agency,
and
to avoid
specifying the identity
of the Agency decision maker.
Note that
99—385
-10-
“Agency determines
x” means
“A presents facts
supporting
x to the Agency,
and
the
Agency
agrees
that
x
is
true.”
An alternative interpretation of the USEPA rule
is that
it really means
for the applicant
to make a separate demonstration that
he “can demonstrate”
compliance with the standard.
It’s hard
to understand
how the applicant could
make such
a demonstration without actually demonstrating compliance with the
standard.
The Board would appreciate
an explanation
of how this could
be done
if
any coninenter favors this interpretation.
If this
is what
the USEPA rule
means, procedures
need to
be specified for the preliminary demonstration.
This rule suffers from a more serious flaw under either of the above
interpretations.
Under Section 724.701,
the Agency
is supposed to consider
hydrologic,
geologic
and rneterologic factors before deciding whether the unit
meets the environmental performance standard.
The Agency therefore needs the
complete information before
it
can decide whether
to
rely on preliminary
assessments.
The following
is
a possible alternative which would
render this
procedure meaningful.
Preliminary hydrologic, geologic and meteorologic
assessments will
suffice,
unless the Agency
notifies the
applicant that,
based
on the preliminary assessments,
the
unit will
not conform with the environmental
performance
standards
of
35 Ill. Adm. Code 724.701.
The Agency
shall
follow the procedures for incomplete applications
in
35
Ill. Adm. Code 705.122.
The Board
solicits coment
as
to whether this
is what
the USEPA
rule
means.
40 CFR 270.23(e)
requires
“any additional
information determined by the
Director to be necessary...”
For reasons
similar
to those discussed above,
the Board
has worded this to require
“additional
information which the Aqency
determines
is
necessary...”
Section
703.222
This
Section
is
drawn
from
40
CFR
270.62(a),
which
was
amended
at
53
Fed.
Reg.
37934.
This Section
is amended
to
reference the
new permit niodificution
procedures discussed
below.
This
and the following Sections concern short—term RCRA permits
which
are
issued
to allow trial
burns
at
incinerators
and
land treatment demonstrations
at
land application sites.
These have
a
large number
of
“shall, must, will
and may” problems, which are discussed above
in general.
The Board
has edited
these
to express what appears
to
be USEPA’s intent with greater uniformity of
usage.
Several
of
the
USEPA
provi sions
state
that
the
a~jeucy
‘will’
i~c~e
u
permit.
This language
is appropriate when the rulemaking
body issue
the
permit.
in
Illinois
a different Agency
issues permits.
This
has generally
been changed
to
“shall”.
Several
of the USEPA provisions state that the agency “may”
issue
a
99—386
—11—
permit
if the applicant meets certain conditions.
The
Board
has replaced this
with “shall”,
since, under Illinois administrative
law,
the applicant
is
entitled to
the permit
if
it meets the conditions.
The Board solicits coninent
as
to whether there
may
be unstated conditions which the applicant must meet
in
the
USEPA practice.
Section
703.223
This Section
is drawn from 40 CFR 270.62(b), which was amended
at
53
Fed.
Reg.
37934.
This Section
is amended
to
reference the new permit modification
procedures
discussed below.
Section 703.230
This Section
is drawn
from 40 CFR
270.63, which was amended
at
53 Fed.
Peg.
37934.
This Section
is amended
to
reference the new permit modification
procedures discussed below.
Section 703.247
This new Section
is drawn
from 40 CFP 270.30(l)(2), which was amended
at
52 Fed. Reg.
37934.
The PCRA only provisions of Section 702.152(b)
have been
moved
to this Section.
The main portion
of 40 CFR 270.30(l)(2), which has
been
left behind
in Part 702, specifies
a permit
condition which
requires the
operator to notify the Agency
in advance
of any planned changes which would
result
in non-compliance.
Hence,
the
title
of the Section:
“Anticipated
Noncompliance”.
This title
has been carried with the RCRA only provisions
into Part 703.
However,
it
is somewhat misleading,
since the RCRA only
language really concerns when
an
operator
can commence operations
at
a new or
modified facility.
The amendment provides
a
cross-reference
to the
new permit
modification procedures, which
in some cases
allow
an operator to
carry out
the modifications prior
to Agency approval.
40 CFR 270.30(l)(2)(ii)
has
levels
of subdivision without governing text,
a violation of
the Code Unit rules.
The Board has inserted “either”
at the
main level.
40 CFR 27D.30(l)(2)(ii )(B)
is
not grammatically correct.
However, There
appears
to
be
no way to
fix
it
short
of
rewriting the whole Section.
Section 703.260
This new Section
is drawn from 40 CFR
270.40, which was amended
at
53
Fed. Peg.
37934.
This
and
the following Sections
are drawn
from the RCRA only
provisions
of Sections 702.181
et seq.
This Section
governs transfer
of
permits, which
can
be
effected
as
a
Class
1 modification without prior Agency
approval.
However, the
old operator’s financial
assurance continues
until
the
new operator demonstrates
compliance.
There
is
a possible conflict between this Section and the
chief
operator
certification
rules
in
Part
745.
Some facilities may be
subject
to the chief
operator certification
requirement,
and would have to
have
a certified
operator prior
to the sale.
The Board
has
added
a Board
note with
a
cross
reference.
99—387
—12-
Section 703.270
This new Section
is drawn from the preamble to
40 CFR 270.41, which was
amended
at
53 Fed. Reg. 37934.
The
federal change
is
to
reference the
new
permit modification procedures.
Section 702.183 has been moved
to this
new
Section
as
a RCRA only provision.
40 CFR 270.41
includes procedures for “revocation
and reissuarice”
of
permits.
When Sections
702.183 et
seq. were originally adopted,
these
procedures were omitted out of concern that they conflictedwith the
“revocation”
procedures involved in Board
enforcement under Section 33(b) of
the Act.
However,
as
used by USEPA,
the “revocation and reissuance”
procedures
do not involve enforcement penalties.
Rather,
this
is
a mechanism
for permit modification by which
USEPA cancels
an existing
permit
and replaces
it with
a new permit.
In
a subsequent
update Docket, the Board
decided
to
reinsert the
procedure,
but to
call
it
“reissuance”
to avoid
confusion.
However, this was
not done to
all
Sections.
Several
of
the following Sections
are
now amended along these
lines.
Section
703.271
This new Section
is drawn from 40 CFR 270.41(a), which was amended
at
53
Fed. Reg.
37934.
It
has
been moved from Section
702.184(a).
It
specifies
the
causes
for modification,
but
not reissuance.
It
has
been amended
to
reference
the new permit modification procedures.
Section 703.272
This new Section
is
drawn from 40 CFR 270.41(b),
which was not amended
during this update period.
The text
has
been moved from Section 702.184(b).
The Section states
causes for modification or reissuance
of permits.
The
text.
of
40 CFR 270.41(b)(1) was omitted
because
it
allows USEPA to use
modification
or
reissuance
in
a punitive sense when cause exists
for an
enforcement
action.
Section
703.273
This new Section
is
drawn from 40 CFR 270.41(c),
which was
not
amended
during this update period.
The text has
been moved from Section
702.185
to
avoid future confusion.
Section
703.280
et
seq.
This
new
Section
is
drawn
from
40
CFR
270.42,
which
was
amended
at
53
Fed. Peg.
37934.
The “minor modification” process, formerly in Section
702.187,
has been replaced with three procedures for handling permit
modification
at the request
of the
permittee.
40
CFR
270.42
is
far
too
lonj to ~uet Code Unit
guidelmrs
fur
a
Section,
and
uses
more
levels
of
subdivision
that allowed
by
the Code Unit.
Tne Section
has been broken
in four Sections, 703.280 through 703.283,
using
the “Alien(s)” method followed elsewhere
in Part
703.
40 CFR
270.42
is
a list
with three long elements, Sections 270.42(a) through
(c),
followed
by
shorter
elements
(d) through
(h).
The longer elements have been placed
in separate
99—388
-13-
Sections 703.281 through
703.283.
The main list
is preserved
in Section
703.280, with cross
references
in place
of the long elements.
Section
703.281 addresses Class
1 modifications, which the operator can
effect
unilaterally, provided
he
notifies
the Agency within
7 days.
If the
Agency rejects
the
request,
the operator
has to
go back to the
original
permit
conditions.
Section
703.282
addresses
Class
2
modifications.
The operator
has
to
give
prior
notice
to the Agency and the public,
and
hold
a
public meeting.
The operator may effect the
change unless the Agency
rejects
it within certain
time
frames.
Section 703.283 addresses
Class
3 modifications.
These are like Class
2,
except that the operator has to have
a
decision from the Agency prior
to
placing the modification into effect.
The
federal
rules
contain
several
default
provisions
which
require
the
operator
to
comply
with
40
CFR
265.
(For
example,
see
40
CFR
270.42(b)(6)(iii
).
This appears
to
be
a repeated error.
This process
applies
only to
facilities with RCPA permits, which should
reflect the 40
CFR
264
standards.
Why
should facilities
have to comply with the interim status
standards during the pendency of modification?
The Board
has proposed to
change this
to
reference
35
Ill. Adm. Code 724,
the equivalent of 40 CFR
264,
but solicits coninent.
It
makes sense that any permit modification should
be
in compliance with the permitting standards.
Section 703.Appendix
This new Section
is drawn from 40 CFR
42, Appendix
I, which was added
at
53 Fed. Peg.
37934 and 41649.
This includes extensive examples of the Classes
of permit
modification.
Section 704.161
(Not amended)
This Section
is
drawn from 40 CFR
144.31, which was amended
at
53 Fed.
Reg.
46963.
This UIC amendment will
be addressed
in R89—2.
Section 705.128
This Section
is
drawn from 40 CFR
124.5, which was amended
at
53 Fed.
Reg. 37934.
This will
be addressed in R89-2.
Section 720.110
This Section
is drawn from 40 CFR 260.10 which was amended
at
52 Fed.
Peg. 46963 and 53 Fed. Reg.
34086.
These are the definitions applicable
to
Parts 720 et
seq.
In addition
to the
changes
derived from the
federal amendments,
the Board
has
proposed
a
few
editorial
revisions
to
these
definitions.
Several
of
these
concern references
to federal
rules
or
statutes.
As has been discussed in
previous Opinions,
these are of concern
because they may be subject
to the APA
limitations
on incorporations by
reference.
The
Board has attempted either
to
99—389
-14-
make these clearly incorporations by
reference in compliance with the APA, or
to make them clearly not incorporations
by reference.
In
the latter case,
among
the
possible
actions
are
to
eliminate
unnecessary
references,
replace
federal
references with derivative State rules,
or reword provisions
so
as to
reference
federal
actions
rather than rules.
The Board has proposed
to amend
the definition of “designated facility”
to remove unnecessary federal
references.
This term refers
to the facility
listed by the generator
on
the manifest
to
receive the hazardous waste
shipment.
Section
722.120 requires that
the generator designate
a
facility
with
a RCRA permit
or interim status.
It
is
complicated
to
state this, since
the receiving facility could
be located out-of-State,
and hence
have
a RCRA
permit from USEPA or another authorized state.
It
is
not necessary to
repeat
the limitation
on designated facilities
in both the definition
and the
operative Section.
The definition
of “elementary neutralization unit” was amended
at
53 Fed.
Peg.
34086.
The main change appears
to
be the addition
of
“tank
systems”
to
the
list of units which could
be
an elementary neutralization
unit.
See above
for the discussion of this definition
in the
Part 702 definitions.
The definition
of
“landfill” was amended
at
52 Fed. Peg. 46963
to add to
the list of
specific units which are not
“landfills.”
The definition
of “miscellaneous unit” was
also added
at
52 Fed. Reg.
46963, which added the regulations applicable
to miscellaneous units.
The
Board
has added “tank system”
to the list of units which are
not
“miscellaneous units”.
This change
is
parallel
to
the changes made at
53 Fed.
Peg.
34086,
and probably represents
an error made
by USEPA because different
offices were working with out—of-date
copies
of the rules.
The definition
of “POTW”
has
been modified
to
replace
federal
references
with
a derivative State definition,
adopted with
the pretreatment
rules
in
R86-44
in
35
111.
Adm.
Code
310.
The definition
of
‘wastewater treatment
unit” was amended
at
53 Fed. Peg.
34086.
The main change
is again
to add
“tank
systems”
to
the
list
of
units.
The Board
has also proposed to
replace the references
to the
federal Clean
‘n’ater Act with references
to the derivative State rules
in Parts
309 and
310.
To
be
exempt
from
the
hazardous
waste
rules,
a
wastewater
treatment
unit
either has to
have an NPDES permit under Part
309,
or
a pretreatment permit
or
authorization to discharge,
issued
by the Agency
or
authorized POTW,
under
Part 310.
The USEPA language exempts units
“subject to regulation” under the Clean
Water Act.
This
is
subject
to the interpretation that
a facility which
is
required
to,
but does not, have an I4PDES
permit would
thereby be
exempt from
the hazardous waste
rules.
This
is
probably not
what
USEPA
i ntends.
AS
proposed
by
the Board, the
exeniption would
extend
only to
those units
which
have the required
permits.
Section 720.111
The changes
to the incorporations
by reference Section are mainly routine
99—390
-15—
updating of documents.
As
has been discussed
in previous Opinions, while
USEPA in actual
practice regards
its incorporations by reference
as
referring
to future
editions of
documents, the APA requires
the Board
to
cite to
a
certain edition.
Although USEPA does not routinely update its
rules
to
reflect the
editions actually
in
use, the
Board
needs
to
update incorporations
by reference to cite the actual
edition USEPA
is
using
as
new editions come to
its
attention.
Most
of the
revisions to
the industry standards came arose
from the UST
rules
proposed in P88-27.
The RCRA hazardous waste storage tank
rules
in
Section 724.290
et
seq. reference some of the
same industry standards as the
UST rules.
The Board
has
updated
Section 720.111
to
use the current editions
of these
standards.
The
Board
has
shifted
the
reference to ANSI/ASME 831.3 and 831.4 from the
“ANSI”
heading
to
“ASME”,
since the
latter organization actually provided the
current
edition
to the Board.
A cross
reference
is
left,
since
the standard
is
referenced as
“ANSI”
in
the
body of the
rules.
The editions have been
updated from those
cited
in the P88-27
proposal,
since newer
editions have
been received since that proposal.
The API, MACE
and
NFPA
references have been changed to
the
format
preferred by those organizations,
as discussed in R88-27.
The
CFR citations have been routinely updated
to reflect the 1988
edition, which
includes
rules adopted through July
1,
1988.
The Board
solicits conulient as
to whether any specific amendments since that date need to
be
included with these broadside incorporations.
The Board
has
added
a
reference to
10 CFR
20, Appendix
B,
which
is
the
NRC’s definition
of various
types
of
radioactive material.
This
is
used
in
existing Section
730.103, which
is
not
a
part of this proposal.
The Board
has
also added
a
reference to
40 CFR
136, which are USEPA analytical methods
cited
in
various Sections.
The Board
has also referenced
40 CFP
302.4 through
302.6,
which
is
the USEPA definition
of CERCLA
“hazardous substance”
and
reportable quantity rules.
These are used
in Parts
724 and 725, discussed
bel ow.
Section 721.104
This Section
is drawn from 40 CFR
261.4, which was amended
at
53 Fed.
Peg.
35420.
Section 721.104(b)(7)
has been amended to
include
(actually to
exclude from excluding) certain ore processing wastes.
These
are related to
K064, K065,
K066,
K088,
KO9O and K091,
new listings discussed below.
Tnere
are
several
minor
editorial
problems
with
these
amendments.
In
(b)(7)(A),
“slurry/sludge”
has been rendered
as
“slurry
or sludge”, to
avoid
offending the Code Unit.
In
(b)(7)(B),
‘contained
in the dredged from” has
been changed
to
“contained
in and dredged from”,
the wording
used
in
the
listing
K065.
However, this
is
probably also an editorial
error
by USEPA,
and
should probably read “or”.
How could
the sludge
be both contained
in and
dredged from the impoundment?
In
(b)(7)(C),
“and/or”
has been changed
to
the equivalent
“or”
to conform
99—391
-16-
with the Code Unit’s
style manual.
Section 721.132
This Section
is drawn from 40 CFR
261.32, which was amended
at
53 Fed.
Reg.
35420.
The amendments add the listings K064 through K091 discussed
above.
Similar wording changes have been made.
Section
721.133
This Section
is
drawn from 40 CFR
261.33 which was amended
at
53 Fed.
Peg. 43881
and 43883.
The amendments
delist
iron dextran
and strontium
sulfide.
Section 721.Appendix G
This Section
is
drawn
from 40 CFR 261.Appendix
VII,
which was amended
at
53 Fed. Reg.
35420.
These add
the bases
for the listings K064 through
K091
discussed above.
Section 721.Appendix
Ft
This Section
is
drawn
from 40 CFR 261.Appendix VIII,
which was amended
at
53 Fed. Peg.
43881
and 43883.
Strontium sulfide and
iron dextran have been
removed from the table
of
hazardous constituents.
Section 722.Appendix
This Section
is drawn from 40 CFR 262.Appendix, which was amended
at
53
Fed. Reg. 45090.
The
Board
has
updated
the
incorporation
by
reference
of
the
federal
uniform hazardous waste manifest
formn.
Section 724.110
This Section
is drawn
from 40 CFR 264.10, which was amended
at
52 Fed.
Peg. 46963.
The amendments add
a
reference to
new
Subpart
X.
Section 724.113
This Section
is drawn
from 40 CFR
264.13, which was amended
at
53 Fed.
Reg.
31211.
The amendments add waste analysis
requirements
related
to
th’e
landfill
bans discussed below in Part
728.
The USEPA rule exceeds the Code
Unit’s limit
on
subsection levels,
so that 40 CFR 270.13(b)(7)(iii)(B)(1)
and
(2) have to be combined into
the final
available
level,
35
Ill. Adm. Code
724. 113(b)(7)(C)(ii
).
Section 724.115
This
Socti
on
is
drawn
from
40
CFR
264.
15,
which wes ~munned
at ~2Fed.
Reg.
46963.
The
amendments
correct
cross
references,
and
arid
a
reference
to
new
Subpart
X.
Section
724. 118
99—392
—17—
This Section
is drawn
from 40
CFR 264.18, which was amended
at
52 Fed.
Reg. 46963.
The amendments add
a
reference to
new Subpart
X.
Section 724.154
This Section
is
drawn from 40 CFR
264.54, which was amended
at
53 Fed.
Peg. 37934.
The
“note” following this Section
has
been removed,
in relation
to
the
new
permit
modification
procedures
discussed
above.
Section
724.173
This Section
is
drawn from 40 CFR
264.73, which was amended
at
52
Fed.
Reg. 46963 and 53 Fed. Reg.
31211.
The amendments
add
a
reference to
new
Subpart
X,
and add requirements
for the facility operating record
relating to
the landfill
bans.
Section
728.106, discussed below, requires
an adjusted standard pursuant
to
35 111. Adm. Code
106.
In adopting this Section,
the Board referenced Part
106 directly,
rather than by way of Section 728.106.
This could have been
a
typographical error,
caused
by
the similarity
of the numbers.
The Board has
proposed to change this to
reference the lead
in Section.
Section 724.190
This Section
is
drawn from 40 CFR
264.90, which was amended
at
52 Fed.
Peg.
46963.
It
states the applicability of the groundwater monitoring
requirements
to miscellaneous units, which are discussed
below.
The federal
provision
has been edited
to
shorten
it
and make
it
say something.
Section
724.191
This Section
is drawn from 40 CFR 264.91, which was amended
at
53 Fed.
Peg.
39728.
The amendments add definitions
of
“detected” and “exceeded” for
use
in
the groundwater monitoring
rules which follow.
Section 724.192
This Section
is
drawn from 40 CFR
264.92, which was amended
at
53 Fed.
Reg. 39728.
The language has been amended
to conform with the definitions
in
the preceding Section.
Section 724.197 through
724.199
This Section
is drawn from 40 CFR
264.97 through 264.99, which were
amended
at
53 Fed. Peg. 39728.
These amendments address
the question
of
how
to tell
if
a sample exceeds the groundwater protection standard
in the
permit.
The existing
rules
are very specific
as
to the number
of
samples,
and
require the
use of
a
variation of the Student’s t-test for statistical
significance.
Under the
new rules the sampling, analysis
and statistical
evaluation plan
are described
by general
rules.
The operator
is
required to
propose
a
plan
in the
permit
application, meeting the
general
rules.
Compliance
with
the
groundwater
monitoring standard
is
judged
by
reference to
the plan
in the
permit.
99—
393
-18-
40 CFR 264.98(f)(2)
has
an
apparent typographical
error which
has
been
corrected.
(“as” instead Qf
“at”
the compliance
point.)
Section 724.211
This Section
is drawn from 40 CFR 264.111, which was amended
at
52 Fed.
Peg. 46963.
The amendments add
references
to
new Subpart
X.
Section 724.212
This Section
is drawn from 40 CFR 264.112, which was amended
at
52 Fed.
Peg. 46963 and 53 Fed. Reg.
37934.
The amendments
add references to new
Subpart
X,
and correct
references
to
permit modification procedures.
40 CFR 264.112(b)
requires
the closure plan
to identify steps necessary
“to perform partial
and/or final
closure”.
This
has
been changed to
“partial
or final
closure”,
to conform with the Code Unit
requirements, which
equate
“and/or” with
‘or”.
However,
the USEPA rule may be wrong
in
using
‘sand/or”
in
the
first place.
“Or”
seems wrong,
since the plan would always
have
to
address final
closure.
“And”
also seems wrong,
since partial
closure would
not have to
be addressed unless the operating plan called
for partial
closure,
such as
in landfilling
by opening and closing
a succession
of trenches.
The
Board
suggests
the following,
and solicits
coninent:
The
plan
must
identify
steps
necessary
to
perform
final
closure
of
the facility
at any point
during its active life.
The plan must also
identify
steps
necessary
for
partial
closure
if
necessary
under
the
operating plan
for the facility.
Section 724.214
This
Section
is
drawn
from
40
CFR
264.114,
which
was
amended
at
52
Fed.
Peg.
46963
and
53 Fed. Peg.
34086.
The
amendments
add
references
to
new
Subpart
X,
and to
reference the
rules
on disposal of tank system components
on
closure.
The latter Federal Register
action appears
to have inadvertently
repealed the first.
The Board assumes this
is
an error,
and
has retained to
earlier language.
Section 724.217
This Section
is drawn from 40 CFR
264.117, which was amended
at
52
Fed.
Peg.
46963.
The
amendments
add
references
to
new
Subpart
X.
Section 724.218
This Section
is
drawn from 40 CFR 264.118, which was amended
at
52 Fed.
Reg. 46963 and 53 Fed. Reg. 37934.
The amendments
add references
to
new
Subpart
X and
to the revised permit modification
procedures.
Section
724.241
This
Section
is
drawn
from
40
CFR
264.141,
which
was
amended
at
53
Fed.
Peg.
33950.
The
USEPA
amendment
adds
a
definition of “substantial
business
relationship”, which
is used
in the liability insurance requirements
discussed
99—39 4
-19-
below.
These
amendments
raise
issues
which
are
closely
related
to
the
issues
discussed
in the Proposed Opinion
in R89—4,
financial
assurance for
underground storage
tanks.
The
issues
are
also
closely
related
to
issues
discussed
in the Opinions
in
P86—46 and P87-39, which included amendments
to
the liability insurance provisions.
The financial
assurance requirements will
be discussed below
in
detail.
These rules have
a number of
broad
issues concerning the place
of the
financial
assurance requirements
in State
law.
These concern
the State
laws
which
govern the financial
assurance instruments
and State agencies which
regulate the financial
institutions
and corporate guarantors.
As
noted above, Section 22.4(e) requires
the Board
to adopt
regulations
which
are “identical
in substance” with USEPA UST
rules.
This term has
recently been defined
in Section 7.2
of the
Act
in
a manner which codifies
the
Board’s longstanding
interpretations
of
it.
(See P85—23, June 20,
1986,
70
PCB 311,
320;
R86—44, December
3,
1987,
pages
14 and 19.)
Generally
the
“identical
in substance” mandate
is
to adopt the verbatim text of the USEPA
rules
so
as
to effect
a program which
requires the
same actions
by
the same
group
of affected persons
as would the USEPA
rules
if USEPA administered the
program
in
Illinois.
However,
there
are certain situations enumerated
in
Section
7.2
in which the Board
is
to depart
from the verbatim text of the
USEPA
rules.
Several
of
these
are
relevant
to
the
financial
assurance
rules.
Several
provisions
in
the
USEPA
rules
appear
to
be requirements
for
program
approval
or directives
from USEPA
as
to
the
types
of
rules
the states
are
to
adopt,
rather
than
“pattern”
rules
which
the
states
are
supposed
to
adopt
verbatim.
Section
7.2 of
the
Act
also
requires the Board
to modify the text
as
necessary to
acconiriodate
the requirements
of State
law.
Several
provisions
need to
be modified to
correctly state
the requirements
of State law.
Indeed,
these provisions may also be
construed as directives
from USEPA to insert
the
correct State
law.
These complexities arise
out of the
nature
of the financial
assurance
mechanisms.
Although
the use
of
the mechanisms
is mandated
by federal
law,
the
mechanisms
themselves
are
a
matter
of
state
law.
Operators
subject
to
the
federally-mandated environmental
regulations must contract, pursuant to
state
law, with financial
institutions which are created and mainly regulated under
state
law,
and
which
are
not themselves usually the subject
of
environmental
regulation.
This
is further complicated
by balancing the
need for
a national
financial
assurance system versus
the necessity for
state administration
and
enforcement,
given the
national
policy
of delegating
to the
states.
The State agencies which
regulate the
financial
institutions
and other
providers
include:
Commissioner of
Banks and Trust Companies;
Department
of
Insurance;
and, Secretary of State, Corporation Division.
The Board will
send each
a copy of this Opinion and Order,
together with
a
cover letter
specifically
requesting
coninent.
In R86—46 and P87—39 the Board has addressed multistate problems with
respect
to hazardous waste
financial
assurance.
The following
is
a
hypothetical
which
illustrates some of the problems with multi-state financial
99—395
-20-
assurance as apparently contemplated
under the USEPA
rules.
Suppose a Delaware corporation,
with headquarters
in New Jersey, operates
a hazardous waste facility located
in Illinois.
The financial
institution
is
a Nevada
corporation with headquarters
in Connecticut.
The financial
assurance documents are drafted at
the financial
institution’s office
in ~ew
York,
and mailed to
the operator’s corporate headquarters
in New Jersey.
Whose
law
applies?
Which
State
has
jurisdiction
to
decide?
For
a
second
example,
suppose
the
Delaware
corporation,
headquartered
in
New Jersey, owns an Illinois
subsidiary,
which
owns
a facility
in
Illinois.
The Board
suggests that the following are general
legal
rules
which
govern the choice
of
law governing financial
assurance documents.
The
financial
institution must
have the power
to
issue the document.
This mainly depends
on the law of the state of incorporation,
and the terms
of
the charter
or articles of incorporation.
In addition, the institution
needs
to
be
licensed by
at least
some state to engage
in the activity.
The validity of
a corporate guarantee
is similar.
The corporation must
have the power
to make
the guarantee under the laws of
the
state of
incorporation,
and under
its articles
of incorporation.
Generally the validity of
an instrument
is
governed by
the law of the
state
in which the instrument
is
executed.
This probably means
the place
at
which
the
signed document
is
delivered
to the operator.
(Where
it’s placed
into the mailbox?)
However, the parties can
agree that
the law of another
state governs the
instrument.
There may
be limitations
on
this, especially
if
the instrument violates some
law of the state
in
which
it
is
executed.
The financial
institution certainly
has to
be
licensed
in the
states
in
which
it has
its offices.
It
is not clear whether licensure
is
required
in
all
states
in which instruments
are executed
or
in which
facilities
are
located.
A business entity which guarantees the
debts
of an
operator may,
or
may not,
be
“doing business”
in
the operator’s
State,
and may have to
register
with the Corporation
Division.
Generally
a parent
corporation
is not “doing
business”
in
a state
by virtue
of ownership of a
subsidiary which
is
doing
business.
There
are constitutional
limitations
as
to where the providers of
financial
assurance can
be
sued.
Licensing and registration would allow the
financial
institution
or guarantor to
be
sued
in
the State
in which the
facility
is
located.
Otherwise,
they
can generally be
sued
in the
state
courts
or
U.S. District Courts
in the
states
in which they are organized or
do
business.
There are ways
to
obtain jurisdiction
in Illinois, but
none appear
to
be generally applicable.
This may
riot
be important
to USEPA, which
maintains
a presence
in
all
states.
However,
for Illinois
it
is
important
to
be
able to sue
in Illinois courts
pursuant
to
Illinois law.
Otherwise,
the
State would have to have experts
on the financial
laws
of many
states
to
review documents,
and would have to
set up
regional
collection
offices around
the
country.
40 CFR 264.147(g)(2) allows
an operator
to use
a corporate guarantee bond
99—396
—21—
only if the Attorneys General
in the states
in which
the guarantor
has its
pronciple place of business
and facilties.
In addition, 40 CFR
271.7
and
271.12
require
an Attorney General’s statement that
all
of the mechanisms
are
valid
and
enforceable.
The Board
notes
in passing that the specific certification requirement
probably misses the point.
As discussed
above,
the validity
of the guarantee
or bond
is probably governed by the
law of the State
of incorporation
or
chartering
of the guarantor or surety,
and the law of the place where the
financial
instrument
is
executed,
rather than the law of the places where the
facility
is
located
or the operator
has its principal
place of business.
The Board faced
a
similar question with respect
to Attorney General
certification of
hazardous waste corporate guarantees
in P86—46 and P87—39.
There are
a number
of ways
of
interpreting this
requirement.
For the reasons
discussed
above,
the validity of the
financial mechanisms under the USEPA
rules
may be determined under the laws of
several
states.
If the
certification requirement is
asking the Attorney General
of
Illinois to make
a
generic certification
at
the
time of application
for program approval,
it
is
asking for a certification that mechanisms
are valid under the
laws of other
states.
It
is not
right
to even ask the Illinois Attorney General
to make
this certification.
The Board
discussed
a number
of other
interpretations
in P86—46 and P87—
39.
One possibility would
be to
limit multistate combinations to those
involving
a
small
number
of neighboring states,
and ask the Attorneys General
in
each to certify.
This
is probably unworkable.
Another possibility would
be
to
require each operator using
a multistate combination
to
obtain
individual
Attorney General
certifications with respect
to each
of the states
involved
in the combination.
USEPA
rejected this possiblity
in
the most
recent preamble
as
unworkable.
(53 Fed. Peg.
33945)
In P86—46
and P87-39
the
Board
limited hazardous waste corporate guarantees
to those which were
governed entirely by
Illinois law,
so
as
to
allow the Illinois Attorney
General
to certify alone
that the guarantees
were valid and enforceable.
The
Board
received
no adverse
coniiient to this interpretation.
The Board
has proposed to follow the same course with
respect
to the new
financial mechanisms discussed below.
The Board
has proposed to limit
financial mechanisms
to those which are governed entirely by
Illinois law.
Financial
institutions will
have to obtain
approval from Illinois
regulatory
authorities
before they can
issue financial
assurance which will
be acceptable
under the proposal.
Corporate guarantors will
have to register with
the
Secretary
of State.
And, the
guarantors
and trustees
will
have to agree
that
Illinois
law governs.
The term “substantial
business
relationship”, defined
in Section
724.241(h),
is
used to limit
the types
of
non—financial institutions which
can
offer
a guarantee to
the operator which will
function
in
lieu of liability
insurance.
As defined
in the
federal
rule,
a “substantial
business
relationship”
is the extent
of
a business relationship which will
support
a
valid
and enforceable guarantee contract under State law.
This federal definition
is
a directive to the states to write
a
definition,
rather than
a
“pattern” rule which the
states
are supposed to
99—397
—22—
adopt.
Section
7.2
of
the
Act
authorizes
the
Board
to
use
identical
in
substance procedures
in
crafting definitions meeting
such federal
directives.
There
are two types
of guarantees.
One
is
a performance bond written by
a
regulated financial
institution.
The other
is
a guarantee by one business
entity,
which
is
not a financial
institution, but which meets
the financial
test, that
it will
pay any clean
up costs
if another entity fails
to do so.
The
latter type of guarantee
is
subject
to the objection that the guarantee
may
be
invalid unless
the guarantor
is
regulated
as
a financial
institution.
It
may
also
be
subject
to
consumer
protection
legislation,
since
the
relationship
is
rather
like
a teenager getting
his aged aunt to
cosign
a loan
for
a
car.
The
question
is,
what
is
the extent
of the relationship between
the guarantor
and operator such that
the guarantee
is valid?
The
rules
discussed
below
limit
these
guarantees
to those from
a
parent
corporation
to
a subsidiary.
Although the proposed amendments extend the
guarantees
to
indirect corporate ownership patterns,
the main rules
are
still
limited to parent/subsidiary relationships.
A subsidiary
is defined
as
a
corporation which
is more than
50
owned
by
the
parent.
This
is
probably
a
sufficient relationship
to
result
in
a valid guarantee anywhere.
The
Board
addressed
this
question
in
R84—22C.
Since
the 50
ownership
requirement
appeared
to
be
rather
restrictive,
the
Board
proposed
to
allow
guarantees from any entity with any
ownership
interest
in
the
operator.
(See
35 Ill. Adm. Code 807.666(h).)
This was accepted
by the State regulatory
agencies.
Since this
is sufficient
to ensure enforceability of
the guarantee,
Board
has proposed to
follow the R84-22C formulation
in this definition.
The USEPA definition
is
really directed
not at ownership interests,
but
at other
commercial
relationships.
(See
53 Fed. Peg. 33941
and 33945).
There
are two examples.
First,
suppose
•a large
firm which meets the financial
test
generates
a
hazardous
waste.
The
large
firm
might
wish
to
guarantee
any
liabilities
a
small
treatment
firm
mignt
incur,
in
exchange
for
a
reduction
in
treatment
costs.
Second,
a
hazardous
waste
treatment
equipment
vendor
might
wish to
guarantee liabilities
as
an inducement
to
firms
to buy
its
equipment.
There
are
potential
problems
with
allowing
these
guarantees.
These
may
be
illustrated with
an example.
Suppose
a fire extinguisher dealer offered
to
replace
its customers
houses
if they burned down.
Department
of Insurance
should probably regulate this activity, to make certain
that the
company
was
treating
its customers
fairly,
and was maintaining
an
adequate loss reserve
to
meet claims.
How do the hazardous waste guarantees compare
to this example?
First,
hazardous
waste
guarantees
are commercial
relationships which may not
need the protections
afforded consumer relationships.
However, third parties,
the
State
and
innocent
bystanders,
are
really
the
benficiaries
of
the
liability guarantee,
and may be deserving of protection.
Second,
the
guarantor must meet the
financial
test in the
rules, affording something akin
to
a
loss reserve.
However,
the
rules
do
not specifically require the
guarantor to establish
a loss
reserve.
For
example,
an
equipment vendor would
incur a potential
annual
aggregate
loss of
$6 billion after selling
1000
units
with guarantees.
How big of
a
loss reserve should
be established
is
complicated
by the possibility that
all
of the
units could
have the same
defect.
99—398
—23-
Aside from the question of whether this activity
needs
to
be
regulated by
the Department
of Insurance, there
is also the question of whether
it
is.
If
these activities
fall within the Department of Insurance~sjurisdiction, then
the
Board
cannot
allow
this
type
of
guarantee
as
meeting
the
financial
assurance requirement.
The Board specifically solicits coment from the
Department of
Insurance and
others
as
to whether
it
can or should extend the
definition
of “substantial
business relationhip”
into this area.
Existing Section
724.241(h)
includes definitions applicable
to
the
liability insurance requirement.
The introductory paragraph defines
“bodily
injury” and “property damage” by reference to “applicable
state
law”.
This
really
is
a directive,
rather than a pattern rule.
In P89-4 the Board
attempted
to find the applicable Illinois definitions,
and found
none.
In
Illinois definitions
of these terms are
left to the parties
in the insurance
contract.
If the terms
are not defined
in the
rules,
the insurers might
issue
policies covering “bodily injury” and
“property damage” with restrictions
which would defeat the purpose
of the financial
assurance requirement.
For
example, an
insurer might
limit “bodily injury”
to one which
is manifested
within
a
short
period of time,
or
limit “property damage”
so
as
to
not
compensate for loss of use of property which
is
rendered unihabitable by
pollution.
If
these
terms
are not defined
in
the
rules, the State would
be
obliged
to accept
the policies as meeting the regulatory
requirement.
Since these definitions are essential
to the program, Section 7.2 of the
Act
requires the Board
to craft
a definition to fill
the hole.
In the
preamble
to
the
UST
financial
assurance
rules, USEPA refers
to the
definitions
of these terms as
prescribed
by the Insurance Services Office
(ISO),
a private entity which, among other
things, drafts
standard forms
used
by many insurance companies.
(53 Fed. Peg. 43333,
October
26,
1988)
Cornenters
urged USEPA to adopt
the
ISO
definitions
so
as
to make the
regulations conform with insurance industry practices.
USEPA refused
to do
so,
and
instead referenced state law,
out of
fear that some states would have
conflicting definitions
in their insurance regulations.
In
such states
confusion would have resulted from having
the ISO definition
in the UST rules,
and
an insurance regulatory definition
in the policy.
However,
since Illinois
has no definitions
in
its insurance regulations,
no conflict should
result
from using the
standard industry terms
in the text of the
rules.
The Board
has therefore proposed to use the
ISO definitions
of
“bodily injury”
and
“property damage”, but specifically solicits coment.
The Board
has reviewed the text
of these
definitions, and
finds
no
problems with the language
of these two definitions
themselves.
However, the
Board specifically so1icits coninent
as
to whether these definitions omit
damages which should
be covered, or include damages which should not
be
covered.
The ISO definition
of
“property damage” depends
on two other ISO
definitions:
“property damage”
includes
loss of use of property because of a
“pollution
incident”, which
includes
a
release, provided such release results
in
“environmental
damage”.
The Board
has proposed
to adopt definitions
of
these
ISO terms
also.
However, there may be
problems associated with these
terms.
The
terms
may
conflict with the USEPA terms
“occurrence”
and
“accidental
release”.
99—399
—24-
USEPA
specifically
rejected
the
ISO definition
of
“pollution incident”,
instead retaining
its definitions
of
“occurrence” and
“accidental
release”.
However, USEPA added
language specifically authorizing the use of alternative
terms, including the
ISO
terms,
in
policies.
(53 Fed. Peg. 43334, October 26,
1988)
Of course,
this tends
to defeat
the goal
of
having the regulatory
and
policy language the
same.
The Board
has
proposed to
resolve these problems
by adding the following
sentence to the ISO definition
of “pollution
incident”:
“The term ‘pollution
incident’ includes
an
‘accidental
release’
or ‘occurrence’”.
This allows
an
insurer to
bring the
ISO policy form into line with the USEPA regulations
by
adding
a simple
rider,
if
the insurer
fails to
do
so,
the policy
would
be
amended
by the endorsement form of 40 CFR 264.151(e), incorporated by
reference in Section 724.252.
Since this amendment would
be simple,
it
is
unlikely that
any conflict would
result between
the language
of
an
ISO policy
form and the regulations.
The above discussion assumes that the “applicable
state
law”
is illinois
law.
As
is discussed in general
above,
the USEPA
rules contemplate that
in
a
federal program
an operator might purchase insurance
in one
state
to
cover
facilities
in another state.
In
such
a
situation the “applicable
state law”
might not
be the law of the
state
in which the facility
is
located.
The
Board
has above
rejected this possibility
in Illinois.
Section
724.242
and
724.244
These
Sections
are
drawn
from
40
CFR
264.142
and
264.143,
which
were
amended
at
52 Fed. Reg. 46963.
The
amendments
add
references
to new Subpart
x.
Section 724.247
This Section
is
drawn from 40 CFR 264. 147, which was amended
at
52 Fed.
Peg. 46953 and 53 Fed. Reg. 33950.
The
former amendments added references
to
new Subpart
X, which were apparently repealed
by the latter.
The
Board
assumes this
is
an editorial
error,
and
has
retained the references.
There
are
two
other
ambiguities
in the
Federal Register.
The
introductory text indicates that paragraph
(g)(1)(ii
)
is
removed and
reserved.
However, this
is
a
critical
Section which prevents cancellation of
guarantees
until
alternative
financial
assurance
is
provided.
The
Board
has
proposed
to
leave the equivalent Section 724.247(g)(1)(B)
in
the
rules, but
solicits
coniiient.
It
is
also unclear whether the final
sentence
of the
introductory text to Section 724.247(g)
is
in
or out.
The Board
has proposed
to
leave
it
in, but solicits coninent.
The
main
amendments
to
this
Section
expand
the
methods
by
which
an
operator may meet the liability insurance requirement.
The operator can
presently meet
the requirement with insurance,
by
passing
a
financial
test
or
with
a guarantee from
a
parent corporation which meets the test.
As
amended,
the
rules will
also allow surety bonds,
letters of
credit
and trust
funds for
liability insurance.
As
discussed above,
the
rules
also expand guarantees
to
indirect
corporate
parents,
and to firms with
a
“substantial business
relationship”
with the operator.
The Board
has
above
proposed
to
define
this
99—400
-25—
term as
an ownership interest
in the operator,
and has proposed to
reject
contract relationships.
For the
reasons discussed
above, the Board
has proposed
to
limit
the new
mechanisms
to
those
which
are
governed
by Illinois
law,
so
as
to allow the
Attorney General
to certify
alone that the mechanisms
are “valid
and
enforceable.”
The Board
has also proposed to
limit
insurance to that
available from companies licensed
by the Illinois Department
of
Insurance.
In
P86—46 and R87—39 the Board
has already limited corporate guarantees
to those
which are
executed
in
Illinois by
a corporation with
a registered agent
in
Illinois.
In P84-22C,
66 PCB 463, November
21,
1985,
the Board determined the
appropriate
agencies for similar mechanisms with respect to
financial
assurance for non—hazardous waste landfills.
The proposal
tracks the language
adopted
in R84—22C.
(See 35 Ill. Adm. Code 807.661
et seq.)
Specifically,
surety bonds
require licensing by the Department
of
Insurance,
and letters
of
credit
and
trust funds
require licensing by the Corirrissioner
of Banks and
Trust
Companies.
The mechanisms
for financial
assurance for closure and post—closure
care
may need to
be
similarly limited.
However,
these
have not been proposed for
amendment
in this update.
At
the
time these were adopted, they were presented
to the
Board
as
something
which
had
to
be
adopted
as
pattern
rules
regardless
of State law.
On the other
hand, the liability requirements
have come to
the
Board with specific USEPA directives
to adapt the mechanisms
to State law and
as to the Attorney General ‘s
statement.
The Board will
consider limiting the
other mechanisms
if they
are amended by USEPA
in
a
similar manner.
Section 724.251
This Section
is
drawn from 40 CFR
264.151, which was amended
at
53
Fed.
Peg. 33950.
The
Board
has proposed
to update the incorporation by reference
of the
financial
assurance forms.
Under the existing language of this
Section, the Agency will
promulgate forms based
on the
new rules.
Section 724.290
This Section
is
drawn from 40 CFR
264.190, which was amended
at
53 Fed.
Reg.
34086.
This Section has
been amended
to use the newer
terminology “tank
systems”.
Section 724.293
This Section
is drawn
from 40 CFP 264.193, which was amended
at
53 Fed.
Peg. 34086.
The Section has been amended
to require sealless valves
in
tank
systems.
Section 724.296
This Section
is
drawn from 40 CFR
264.196, which was amended at
53 Fed.
Peg.
34086.
The amendment
is
to a note
in
the federal
Section which was not
adopted
with
this
Section,
since
it
concerns
corrective
action
orders
entered
by USEPA pursuant to
the federal Act.
The Agency has similar authority under
Section 4(q)
of the Act.
However, the Board does
not see the
need to
reference in
the rules
at this point.
The Board
has proposed
no change, but
99—401
-26—
solicits
couiiient.
The
second
note to this Section references the CERCLA reporting
requirements
of
40 CFR
302.
The
Board
has
proposed to
update the reference
to
the
federal
rules.
The
Board
has
done
so
by
removing
the
date
from
this
Section,
and by
referencing 40 CFP
302.6,
which
is
already
incorporated
by
reference
in Section 720.111.
This
is
actually the Section
in Part 302 which
requires notification.
Section
724.700 et
seq.
Miscellaneous Units
The following Sections are drawn
from 40 CFR 264, Subpart
X, which was
added
at
52 Fed. Reg. 46694, December
10,
1987.
These were inadvertently
omitted
from
P87-39.
This
Subpart
contains
general
rules
for
permitting
hazardous
waste
management
units
which
are
outside
the
specific
categories
for
which
there
are
Subparts.
40 CFR 264.601(b)(7) requires the USEPA to consider “any water quality
standards established for those
surface waters”.
The Board has inserted
a
reference to
the standards
of
35 Ill. Adm. Code 302 and 303.
The Board
is not
aware
of any other water quality standards which might
apply within Illinois.
Section 725.113
This Section
is
drawn from 40 CFR 265.13, which was amended at
53 Fed.
Peg.
31211.
This
Section
governs
the
waste
analysis plan
at
an interim status
facility.
The amendments amend
subsection
(b)(7)(C), concerning analyses
related
to land disposal
bans.
The USEPA
language exceeds the subsection
levels
available
under the Code,
and has
been condensed.
Section
725.173
This Section
is
drawn from 40 CFP 265.73, which was amended
at
53 Fed.
Reg.
31211.
This Section requires that certain notifications and
certifications required under
the land disposal bans be
kept in the operating
record.
(Section 725.173(b)(8)
et
seq.)
Section 725.210
(Not amended)
This Section
is drawn from 40 CFR 265.110, which was amended
at
53 Fed.
Reg. 34086.
The amendments add subsection
(b)(2), which
is already present
in
the Board
rules, representing
an editorial
error previously corrected.
The
Board has proposed
no change.
Section 725.212
This Section
is
drawn from 40 CFR
265.112, which was amended
at
53 Fed.
Peg.
37934 to
reference the new permit modification procedures which
sometimes
apply with respect
to closure plans
at interim status facilities.
Section
725.214
This Section
is
drawn from 40 CFR 265.114, which was amended
at
53 Fed.
Peg.
34086,
to add
references
to the tank regulations
to the preface.
99—402
-27-
Section
725.218
This Section
is drawn
from 40 CFR
265.118, which was amended at and 53
Fed. Reg.
37934,
to reference the new permit modification procedures which
sometimes apply with respect
to post—closure plans
at interim status
facilities.
Section 725.241
and
725.247
These
Sections are drawn from 40 CFR
265.141 and 265.147, which were
amended
at
53 Fed.
Peg.
33950.
The amendments closely follow the amendments
to the financial
assurance rules
for permitted facilities, which are discussed
above.
Section 725.290
This Section
is drawn from 40 CFR 265.190, which was amended
at
53 Fed.
Peg.
34086,
to use the preferred term “tank
systems”.
Section
725.293
This Section
is
drawn from 40 CFR
265.193, which was amended
at
53 Fed.
Peg. 34086,
to add
a reference
in subsection (f)(3)
to sealless valves, and
to
correct
a cross
reference
in subsection
(g)(3)(C).
The
Board
has
also
proposed
to
modify
the
note following Section
725.293(c)(4) to
improve
references
to other programs.
The reference to the
pretreatment
requirements
of the Clean Water Act
have been changed
to
reference the new, derivative Board
rules
in Parts
307 and 310.
The broadside
reference to the CERCLA notification requirements
in
40 CFR
302 has
been
narrowed
to the specific requirement
in
40 CFR
302.6, which
is
incorporated by
reference
in Section 720.111.
The Board
has also proposed to
reference the
equivalent State notification
requirement
in Section 750.410.
Section 725.296
This Section
is drawn from 40 CFR 265.196, which was amended
at
53 Fed.
Peg. 34086.
As
is
discussed above
in connection with Section
724.296,
the
federal
note
which
is
the
subject
of
this
amendment
is
not
in
the Board
rules.
However,
the
Board
has
proposed
to
improve
a
reference
to
the
CEPCLA
reporting requirements
in
40 CFR
302.6.
Section
725.301
This Section
is
drawn
from 40 CFR 265.201, which was amended
at
53 Fed.
Peg.
34086 to correct
a cross
reference
in
subsection (c)(3).
Section
726.120
This Section
is
drawn from 40 CFR
266.20 which was amended
at
53 Fed.
Reg. 31211.
This concerns the exemption for products, such as
fertilizer,
which
are used
in
a manner which
constitutes disposal.
99—403
-28-
Section 728.101
This Section
is
drawn from 40 CFR 268.1, which was amended
at
53 Fed.
Reg. 31211.
These amendments concern the
“first
third” landfill
bans.
The
amendments
delete old
subsection
(c)(3), which postponed the effective date
for certain CERCLA and RCRA corrective action wastes, and add subsection
(c)(5), which allows certain delays
until May,
1990.
The
arnendmants also
add
Section 728.101(d), which
references
“waivers” under CERCLA.
Section
728.104
This Section
is drawn
from 40 CFR
268.4, which was amended
at
53 Fed.
Reg.
31211.
The amendments modify the conditions under which
a
banned
waste
can
be treated
in
an impoundment.
This, and
several following sections, have references
to statutory
prohibitions
under
Section
3004
of
RCPA.
In
an
earlier
Docket,
the
Board
added Section 728.139, which contains the statutory prohibition,
in order
to
minimize
problems with possible incorporation by
reference of
a
federal
statute.
Section 728.105
This Section
is
drawn from 40 CFR
268.5, which was amended
at
53 Fed.
Reg.
31211.
This Section allows case-by—case extensions
to
effective dates
for bans.
In
an
earlier Docket,
the Board incorporated the USEPA procedures
by
reference,
and provided that USEPA extensions are to
be deemed Board
extensions.
It
is
unlikely that the Board could
respond
to these
short-term
USEPA extensions within the lifetime of the extension.
The Board has proposed
to update the incorporation by reference.
Section 728.106
This Section
is drawn from 40 CFR
268.6, which was amended
at
53 Fed.
Peg. 31211.
This Section
concerns petitions to
allow land disposal
of
a
restricted
waste.
In
an
earlier
Docket,
the
Board
adopted
these
procedures
as
petitions
for
adjusted
standards
addressed
to
the
Board.
The
amendments
add
Section
728.1O6(a)(4)
and
(5).
The
latter
references
“other
laws”
restricting
waste
disposal.
The
Board
solicits coninent
as
to
whether
there
are
any
laws
other
than Section 39(h)
of the Act
and 35 Ill.
Adm.
Code
709
and
729.
These
amendments
bumped
existing
Section 728.106(a)(4) to
(a)(6).
This
is
a Board addition
to the information requirements which was adopted
in
a
previous
rulemaking.
The Board needs
to know the permit
status
of the
applicant.
This
is
omitted from the federal
information requirements,
since
USEPA,
as the permitting entity, already knows
this.
Section
728.107
This Section
is drawn from 40 CFR
268.7, which was amended
at
53 Fed.
Reg. 31211.
This Section
concerns the waste analysis requirements
for
complying with the landfilling bans.
99—404
-29-
Section 728.108
This Section
is drawn from 40 CFR 268.8, which was amended
at
53 Fed.
Reg.
31211.
The
USEPA
Section
allows
certain
generators
and
operators
to
avoid
some bans under certain circumstances through May,
1990.
Because of the
short—term
nature
of
this
provision,
the
Board
has
proposed
to
incorporate
the
USEPA rule by
reference, instead
of
setting
it forth.
40
CFR
268.12
was
also
amended
at
53 Fed. Reg.
31211.
The Board has not
adopted
any equivalent
to the USEPA schedules for regulating wastes,
since
these apply only to USEPA.
Section 728.130
This
Section
is
drawn
from
40
CFR
268.30,
which
was
amended
at
53
Fed.
Reg.
31211.
This Section concerns
the prohibitions
on
solvent wastes, which
were
adopted
in
a
previous
Docket.
The
USEPA
rules
include many dates which have already passed.
These
dates
have
generally
been
omitted
from the Board proposal.
New
bans
whose
dates
have passed will become
immediately effective as State
rules
as
soon
as
the
rules
are filed.
As
is discussed
below,
in order
to comply with codification
requirements,
Tables CC~4and CCWE have
to be
separated from the governing Sections and made
Tables
A and
B.
These Sections contain many references
to CERCLA response and RCRA
corrective actions wastes.
In
a previous Docket,
these terms were defined
in
Section 728.102,
which
is
not proposed for change.
These
references are
somewhat more complicated
at the State
level,
since they have to deal with
CERCLA and RCRA wastes from lllinois
sites,
other authorized
states
and USEPA
administered
programs.
These
problems
are locali zed
in
the definitions.
Section
728.131
This
Section
is
drawn
from
40
CFR
268.31,
which
was
amended
at
53
Fed.
Peg.
31211.
This
Section
prohibits
landfilling of certain dioxin—containing
wastes.
The amendments
extend the compliance date for certain dioxin-
containing wastes which are soil
and debris which result
from CERCLA response
or PCRA corrective action.
There
are
a number
of minor editorial
problems with this Section.
The
provision concerning
soil
and debris
is
in
40 CFP 268.31(a)(1).
However,
it
is
impossible
to codify
this provision
in
this format, since there
is
no
subsection
(a)(2).
The Cpde Unit requires that there
be
at
least two
entries
at
a
level
of subdivision.
This immediate problem is
resolved by placing the
soil
and
debris
at
the end
of
subsecti on
(a).
Ho~~ever,
this
creates
difficulties
in
cross
referencing.
In
the
USEPA
rule
the
exception
in
40
CFR
268.31(a)(1)
is
used
as
a defining Section for the waste
in question.
The
Board has shifted the definition
to subsection
(b), which states
the ban
on
dioxin contaminated
soil
and debris.
The
references
to
subsection
(a)(1)
have
generally been changed
to
(b).
Placing the definition
in
the exception
is
an
99—405
-30-
editorial
error by USEPA.
The problem with this structure
is
illustrated by
the cross
reference in subsection
(c) back to
subsection
(a)(1).
This could
be
construed as extending the compliance date for the dioxin waste
itself.
The Board
solicits conanent
on this rewrite.
Section 728.132
This
Section
is
drawn
from
40
CFR
268.32,
which
was
amended
at
53
Fed.
Peg.
31211.
This
Section
bans the “California
list” wastes.
Note the 40 CFR
268.32(b) and
(c) are
reserved Sections.
The main purpose
of the amendment appears
to be to extend the compliance
date for CERCLA response and RCRA corrective action wastes,
as
provided
in
Section
728.132(d).
Existing 40 CFR 268.32(e) bans certain chlorinated solvents effective
July
8,
1989, the
date reflected in Section
728.132(e).
The amendment appears
to
accelerate this
ban to November
8,
1988.
If adopted
by the Board
at this
time,
this would
be
a retroactive ban.
Since even the July date will
be
passed before these
rules are
final,
the Board has proposed to make this ban
iniiiediately effective as
a State
rule on
filing.
A
similar problem has also
been addressed
in subsection
(f).
Note that
the chlorinated solvents
ban will
have little effect
in Illinois,
since these wastes are already prohibited
in
35
ill. Adm. Code 729, adopted
in R81—25.
Section
728.133
This Section
is drawn
from 40 CFP
268.33, which was amended
at
53 Fed.
Reg.
31211.
This
is
a
new Section which
bans the
“First third” wastes.
Section 728.140
This Section
is
drawn
from 40 CFR 268.40, which was amended
at
53 Fed.
Peg.
31211.
It
concerns the applicability of the treatment standards of this
Subpart.
Section
723.141
(not
amended)
This
Section
is
drawn
from
40
CFR
268.41,
which was amended
at
53
Fed.
Reg.
31211.
However,
the amendments concern only Table CCWE,
Constituent
Concentrations
in
the
Waste
Extract.
For codification reasons,
these had
to
be adopted
as Table A, which
appears
at
the end of the Part as though
it were
an appendix.
Section 728.142
This Section
is drawn from 40 CFR 268.42, which was amended
at
53 Fed.
Peg.
31211.
This Section
contains treatment standards expressed
as
certain
technol ogias.
The
amendment
authorizes
treatment
of certa
In
halogenated
organic
solvents
by
burning
in
boilers
or
industrial
furnaces,
“in
accordance
with
applicable
standards”.
The
Board
solicits
coninent
as
to
whether
this
is
intended
to
reference
the
boiler
determinations
in
Section
720.132
and
or
the
requirements
for
hazardous
waste
burned
for
energy
recovery
in
Section
726.130
et
seq.
99—406
—31-
Section
728.143
This Section
is drawn from 40 CFR
268.43, which was amended
at
53 Fed.
Reg.
31211.
This Section sets standards for
land disposal
by setting
concentration limits
in the waste
itself,
as opposed
to Section
721.141, which
sets standards for constituents
in
an extract.
Most of the text of this
Section consists of Table CCW, Constituent Concentrations in Waste.
It
is
impossible
to place this table
into the
text of the Section
and meet
codification
requirements.
It has therefore been factored out
and presented
as Table
B, which
will appear
at
the end of the Part.
Section
728.144
This Section
is
drawn from 40 CFR 268.44,
which was amended
at
53 Fed.
Reg.
31211.
This Section concerns “variances” from treatment
standards.
In
a
previous Docket the Board adopted these
as adjusted standards using the
mechanisms
of Part
106.
The
amendments
add subsections
(h) through
(1), which
add procedures
for “site specific variances”.
These too appear
to
be
appropriate for adoption as “site—specific adjusted standards”.
The Board
solicits coninent
as
to whether this terminology might
be confusing with
respect
to Board
procedures for “site—specific rulemaking”.
The USEPA rule includes language which
appears
to function appropriately
as
a “justification”
for
an
adjusted standard.
40 CFR 268.44(h) requires the
person seeking the
“variance”
to demonstrate that,
“because the physical
or
chemical
properties
of
the waste differs significantly from the waste analyzed
in developing the treatment standard,
the waste
cannot
be treated
to specified
levels
or
by
the
specified
methods.”
This
is
a
classical
square
peg,
round
hole justification for
an adjusted standard.
The USEPA rule includes
a
requirement
that the applicant include the
information required
for
a USEPA regulatory petition
in
40 CFP
260.20.
This
language
is
not
included
in
the text of the equivalent
35
Ill.
Adm. Code
720.120,
and
hence must be incorporated
by
reference.
The Board
has proposed
to
add an
incorporation to Section
720.111, discussed above.
40 CFR 268.44(k)
has
an additional
information clause which
is doubly
contingent:
USEPA may
(or may not) request
additional
information which may
(or may
not)
be
required to evaluate the application.
This has been rendered
as
“the Board will
request any
additional
information
or samples which the
Board determines
are necessary
to evaluate the application.”
Section 728.150
This Section
is drawn from 40 CFP
268.50, which was amended
at
53 Fed.
Peg.
31211.
This Section, prohibits storage
of
hazardous waste
to evade
the
landfilling bans.
A reference to Section 728.106 has been added
to subsection
(d).
Appendices
There are
no amendments
to the Appendices,
which incorporate
the USEPA
Appendices
by reference.
The Board
has
updated
the
references
to
the current
99—407
—32-
CFR Edition anyway.
Table A
This
is
Table
CCWE
from
40
CFR
268.41,
which
was
amended
as
discussed
above.
The amendment adds treatment standards, expressed as
a concentration
in the waste extract,
for the First Third wastes.
As discussed above,
this
Table cannot
be presented within the text of Section 728.141
in the
codification format.
To help avoid confusion,
the Board
has added the
acronym/federal
table number “CCWE”
to the heading
of the table.
Table
B
This
is
a new table derived
from Table CCW
in
40 CFR
268.43.
This
contains treatment standards expressed
as
a
concentration
in the waste
itself.
This Proposed Opinion supports the Board’s
proposed Order
of this same
day.
The Board will
receive public
comments for 45 days after the date of
publication
of
the proposal
in
the Illinois Register.
I, Dorothy
Ni. Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby
certify~that the above Proposed Opinion was adopted
on the
~-~?$~
day
of
_____________,
1989,
by
a
vote
of
7~
7
7/
71.
Voorothy
Ni. t~1n,Clerk
Illinois Po3lution Control
Board
99—408
