ILLINOIS POLLUTION CONTROL BOARD
November
17, 1988
IN THE MATTER
OF:
)
)
RCRA UPDATE, USEPA REGULATIONS
)
R88-16
(1-1-88 THROUGH 7-31-88)
)
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.
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 January
1 through July
31, 1988.
The Federal Registers utilized
are as
follows:
53 Fed. Reg. 13383
April
22,
1988
53 Fed. Reg. 27162
July 19,
1988
53 Fed. Reg. 27164
July 19, 1988
53 Fed. Reg. 27289
July 19,
1988
In R86—46 the Board
passed over revisions to the chemical
listings which
appeared at
51
Fed. Reg.
28298, August
6,
1986.
The Board
proposed these
revisions
in R87—39, but withdrew this portion
of the proposal when
it
became
apparent that the
format
of the April
22 corrections would
prevent timely
adoption of the remainder of R87-39.
The Board
has
now adopted the August 6,
1986 revisions as
corrected on April
22,
1988.
The Board opened this Docket with
the intention of addressing USEPA
amendments during
the six-month period
from January through June.
The Board
has expanded
the scope
to
include July,
1988.
This allows quicker adoption of
the July 19 amendment which exempts treatibility studies from the RCRA
program.
The Board departed from the
usual
biannual
update practice
in this
The Board
appreciates the assistance of Morton Dorothy
in drafting
the Order
and Opinion.
93—513
—2-
case because of the possible importance of the treatability exemption
in
acheiving compliance with the landfill
bans, and because of the relatively
small
amount of material
in the January through June period.
5.8. 1834 amended the act
to recognize the existing “batching”
practice.
As worded,
S.B. 1834 prohibits
the use of batches longer than
six
months.
However,
in that there were no amendments during January, 1988, the
batch does
not exceed
six months.
Section 7.2 of the Act,
as adopted
in 5.8.
1834, codifies the Board’s longstanding interpretation of its mandate
to adopt
“identical
in substance”
regulations.
(See R85—23, cited
below,
and R86-44,
December 3,
1987,
pages
14 and
19.)
During this period the Federal Register also included a large number of
delistings.
As provided by Section 720.122, the Board will
not adopt
site-
specific delistings unless
and until
someone proposes that the Board
adopt the
delisting and demonstrates why the delisting
is necessary
in
Illinois.
PUBLIC COMMENT
The Board
adopted
a proposed Opinion and Order on September 8, 1988.
The
proposal appeared on September 30,
1988,
at
12
Ill. Reg. 15327.
The Board
received the following public comment before and during the comment period:
PC#1
IEPA Motion for Reconsideration,
August
1,
1988 (filed
in
R87—39)
PC~2
Administrative Code Unit codification
comments, November 2,
1988
PC#3
USEPA comments
by David Ulirich and Gary Westefer, November
4, 1988
PC#4
AMOCO Corporation,
by Walter Roy Quanstrorn,
November 16,
1988
On July 22,
1988,
the
Illinois Environmental Protection Agency
(IEPA or
Agency)
filed
a motion
to
reconsider the Board’s Opinion
in R87—39.
In that
the motion did not directly address
the text of the rules
as adopted,
and was
not
timely
filed,
the Board,
on August
4, 1988,
declined to address
it
in that
Docket.
The Agency’s motion was made PC
1
in this Docket.
As
is discussed
below,
in
that there
is
no definitive answer to
the issues
raised,
and
in that
the
issues
do not directly relate to the text of the
rules
adopted
in this
Docket, the Board will
again
postpone decision
on these
issues.
HISTORY OF
RCRA and UIC ADOPTION
The Illinois RCRA 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
93—514
—3—
705
Procedures
for Permit Issuance
709
Wastestream Authorizations
720
General
721
Identification and Listing
722
Generator Standards
723
Transporter Standards
724
Final
TSD Standards
725
Interim Status TSD Standards
726
Specific Wastes and Management Facilities
728
USEPA Land Disposal Restrictions
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
731
Underground
Storage
Tanks
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, April
23,
1982.
R82-18
51
PCB 31, January 13, 1983,
7
111. Reg.
2518, March 4,
1983.
Illinois received Phase
I
interim authorization on May 17,
1982 (47 Fed.
Reg. 21043).
The UIC regulations were adopted as
follows:
R8l—32
47 PCB 93, May
13,
1982;
October
15, 1982,
6 111. 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
Iii. Reg. 6673, April
8,
1988;
(111/87
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
Next docket.
93—515
-4-
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,
7
111.
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.
(Commonwealth Edison
et al.
v.
IPC8, 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)
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
This Docket.
(1/1/88
——
7/31/88)
Illinois received final
authorization for the RCRA program effective
January 31,
1986.
The Board added
to the federal
listings of hazardous waste
by listing
93—516
—5—
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
69
PCB
314,
April
24,
1986;
10
Iii.
Reg.
8112,
effective
May
2,
1986.
R87—30
June
30,
1988;
12
Ill.
Reg.
12070,
effective
July
12,
1988.
The Board
has procedures
to
be followed
in
cases before
it
involving the
RCRA regulations:
R84—lO
62
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 R85—22 and amended
in R86—46,
listed
above.
The Board
has
also adopted requirements
limiting and restricting the
landfilling
of liquid
hazardous waste,
hazardous wastes containing halogenated
compounds and hazardous wastes
generally:
R81-25
60 PCB
381, October 25, 1984;
8
Ill.
Reg. 24124, December 4,
1984;
R83—28
February
26,
19B6;
10
Ill.
Reg.
4875,
effective
March
7,
1986.
R86-9
Emergency
regulations
adopted
at
73
PCB
427,
October
23,
1986;
10
Ill.
Reg.
19787,
effective
November
5,
1986.
The
Board’s
action
in
adopting
emergency
regulations
in
R86-9
was
reversed
(CBE
and
IEPA v.
IPCB
et
al.,
First
District,
January
26,
1987).
Hearings
on
permanent rules
are pending.
GENERAL DISCUSSION
The amendments
are discussed
in detail
below.
The following
is
a
general
description
of the USEPA actions
encompassed
by this rulemaking.
The complete
Federal Register citations
are given above.
All
dates
are 1988.
April
22
Corrections
to chemical
lists revisions
July
19
Corrections
to small
quantity rules
Corrections
to farmer rules
Exemption for treatability studies.
93—5
17
—6—
Most of the Order concerns the revisions to the chemical listings.
USEPA
adopted
a supposedly non-substantive revision of the chemical listings in
August, 1986.
The Board noted
a
large
number
of
apparent
substantive
changes
to the listings, and declined to adopt the revisions pending clarification
from USEPA.
The Board
reproposed the revisions
in R87—39
in anticipation of
USEPA’s clarification.
This came in April,
1988,
near the end
of the public
comment period
in R87—39.
The action took the form of revised lists, with no
clues
as
to what the revisions were.
The Board dropped the revisions from
R87—39 since
it
looked like
it would
take far too long to translate the
changes into Administrative Code format.
The Board reproposed the revisions
in this Docket.
The problems with the
farmer exception came about with the rules
on
exports of
hazardous waste which were adopted
in R87-5.
USEPA
renumbered the
farmer exception to make room for
a Subpart addressing exports of hazardous
waste,
and then
inadvertently repealed portions of the export rules with some
minor changes to the farmer
exception.
The Board
noted many of these
problems, and corrected them in R87-5
and R87-39.
DETAILED DISCUSSION
Section 703.123
This Section
is drawn from 40 CFR 270.1(c)(2),
which was amended
at
53
Fed. Reg. 27164, July 19,
1988,
to correct
a reference to the farmer exemption
of Section 722.170.
Section 720.110
This Section was
amended
at
53 Fed. Reg. 27289, July 19, 1988,
to
add
a
definition of “treatability study”.
Section
720.111
USEPA is actually using
a new edition of ASTM Setaflash Closed Tester
method
for determining flashpoint.
(PC~3) The Illinois APA requires the
Board
to update the reference in the rules.
The Board has therefore updated
this reference
to the
1987 ASTM method.
Section
721.104
This Section was
amended
at
53 Fed. Reg. 27289, July
19, 1988 to
add two
new exclusions from the definition of “hazardous waste”.
Sections 721.104(e)
and
(f) exclude treatability study samples from the regulatory program.
Treatability study
samples
are generally limited
to 1000 kg of any non—
acute hazardous waste,
1
kg of acute
hazardous waste
or 250 kg of soils, water
or debris
contaminated with acute
hazardous waste.
Section
721.104(e)(3)
allows the Agency to increase this quantity by
up
to 500
kg
of any non-acute
hazardous waste,
1
kg
of
acute hazardous waste
or 250 kg of soils, water
or
debris
contaminated with acute hazardous waste
if there
is
a
need to repeat
or
verify
a treatability study.
93—518
—7—
There
is
a
question
as
to
whether
the
Board
or
Igency
is
the
proper
authority
to
approve
increases
in
these
amounts.
While
Section
5
of
the
Act
requires
the
Board
to
“determine,
define
and
implement
the
environmental
control
standards
applicable
in
the
State
...“,
Sections
4(g)
and
39
require
the
Agency
to
administer
permit
systems
established
by
the
Act
or
Board
regulations.
If
Board
action
were
required,
it
could
come
by
way
of
variance,
provisional
variance,
rulemaking
or
adjusted
standard.
Board
has
decided
that
these
are
decisions
that
the
Agency
should
make
while
applying
Board
rules
in
the
context
of
the
RCRA
permit
program.
However,
since
the
treatability
studies
are
normally
preliminary
to
an
actual
permit
application,
it
is
necessary
to
provide
an
appeal
mechanism
for
Agency
decisions.
The
Board
has
therefore
added
Section
721.104(e)(4)
to allow appeal
to the Board.
Such
appeals
are
allowed
by
Section
5(d)
of
the
Act.
The
Board
solicited
comment
on
this
Section,
but
received
no response.
PC#4
suggests
that
the
quantity
limitations
conflict
with
each
other.
The comment suggests that laboratories
be allowed
to
store
up
to
1000
kg
of
non—acute hazardous waste for each process being evaluated for
each
wastestream, and
that they be
similarly limited
to
initiating studies
on
250
kg per day for each process/wastestream.
The language
in the proposal
appears to
be consistent with the federal
regulations,
and
the
federal
rules are sufficiently clear.
USEPA
has
addressed the
issues raised
by the comments
in the preamble to these
rules.
See 53 Fed. Reg. 27294, July 19,
1988.
To understand
the rules one has to
recognize that there may be more than
one generator,
shipper
and
laboratory involved
in
a given fact situation.
The
limitations for each have an independent logical
basis,
and there
is
no reason
why the numbers need to
be the
same for each.
Any one of these limitations
may be the decisive factor
in
a given situation.
Among other things,
the laboratory limitations
close possible loopholes
which could
be exploited to avoid
the RCRA permit requirement.
For example,
suppose
a laboratory offerred
10 alternative processes
to 100 generators.
The
generators could
ship 1,000,000 kg for treatability studies.
The laboratory’s
1000 kg
inventory cap makes certain that the amount
in
storage
at any time
is
consistent
with
research,
as
opposed
to~comercial storage
or
disposal.
The
250
kg/day
studies
initiated
rate
prevents
the
laboratory from combining
samples
into
commercial
sized
lots
for
treatment.
Loosening
these
caps,
as
suggested by the comment, would
allow a vast increase
in
the total
inventory
and
rate of operation
at
the laboratory.
This is precisely what USEPA intends
to
prevent.
The Federal
Register text has two probable incorrect references.
In
Section 261.4(e)(2)(vi)
“paragraph
(e)(v)(C)”
should probably be
“paragraph
(e)(2)(v)(C)”.
In Section 261.4(e)(3) “(e)(2)(ii)(vi)”
should probably be
“(e)(2)(ii)
through (vi)”.
Also,
in Section 261.4(e)(3)(ii)
“data” should
probably be
“date”.
Section 721.105
This Section was amended
at
53 Fed.
Reg. 27289, July 19,
1988,
to
correct
93—519
-8-
a
reference
to
the
small
quantity
exemptions
in
Section
722.134, and
to add a
note
defining
“full
regulation”
Section
721.133
This
Section
was
amended
at
53 Fed. Reg.
13383,
April
22,
1988,
to
correct the August
6,
1986 revisions
to the chemical
listings which appeared
at
51 Fed. Reg. 28298.
As noted above, the Board
has proposed and withdrawn
these revisions two times, awaiting corrections
to the USEPA rules.
USEPA has noted
a number of minor typographical errors
in the proposal.
(PC #3)
The Board has generally corrected these
to conform with USEPA’s
comments,
and the federal
rules.
Many of the federal
names include
a chemical
formula.
Some
of
these
are
salts
of
a
metal
and
a
molecular
ion.
The
USEPA
list
uniformly
encloses
the
anion
in
parentheses
even
when
it
is
present
in
an
equimolar
ratio.
For
example,
silver
cyanide
is
written
(in Appendix H)
as Ag(CN)
instead
of
AgCN.
The parenthesis are not necessary
in
the formula
for the
salt, which
is
what USEPA probably
intends.
The unnecessary use of
parentheses opens the
door to
an argument that the listing
is
intended to cover
only the neutral
complex Ag(CN)’~”,which
is probably
not the case.
The difference between
the
salt and
the complex
is that, while
in
the complex
a certain silver atom is
associated with
a
single cyanide,
in the
salt
the cation
and
anion are
simply
present
in
an equimolar
ratio,
either dissociated,
in
a crystal
structure or
as
a complex.
Section 721.App
H
This Section was amended
at
53 Fed. Reg. 13383,
April
22,
1988, to
correct the August
6, 1986 revisions to the chemical
listings which appeared
at
51 Fed. Reg. 28298.
The Board
has corrected
a few probable errors
in the USEPA text of this
Appendix.
The spelling
of “2-acetylaminofluorene”
has been corrected to agree
with the entry for UOO5.
The
long form of the name for aldrin
has an extra “10”.
The long form of benzidine
has
a ~~41H
which
should
be
“4’”.
The
long form of 1,2—dichioroethylene has
a mispelled “chioro-”.
The long form of melphalan has
an “aminol” which has been changed
to
“amino”
to agree with the entry for U150.
The long form of reserpine has
a
“smethyl” which
as been changed
to
“methyl”
to
agree with the entry for U200.
Section 722.110
93—520
—9-
This Section was amended
at
53 Fed. Reg. 27164, July 19,
1988,
to correct
references
to the
farmer exemption of Section 722.170.
In addition, the Board
has
changed a reference to 40 CFR
266 to the corresponding Part
726, which has
now been adopted
as
a Board rule.
Section 722.151
40 CFR 262.51 was amended
at
53 Fed. Reg. 27164, July 19,
1988, to
readopt
the
definitions
for
exports
of
hazardous
waste,
which
USEPA
inadvertently repealed through
a number error.
The Board
corrected the main
error
in
an earlier rulemaking.
In this rulemaking, the Board has corrected a
typographical
error which occurred
in the earlier rulemaking
in one of the
definitions.
Section 724.101
Section 724.1O1(f)(4) was amended
at
53 Fed. Reg.
27164, July 19,
1988,
to correct
a
reference to the farmer exemption of Section
722.170.
Section 724.App.
I
The groundwater monitoring list was adopted
in R87—39.
In this Docket
the Board
has noted
and corrected
a few typographical errors.
Section 725.101
Section 725~.1O1(c)(B)was amended
at
53 Fed. Reg. 27164, July 19,
1988,
to correct
a
reference to the
farmer exemption of Section 722.170.
Part 728
40 CFR 268 was amended
at
53 Fed.
Reg.
27164, July 19,
1988,
to correct
references
to the farmer exemption of Section 722.170.
The Board
believes
that
it noted
and made
all of the corrections
in R87-39,
and has not made any
revisions in this Docket.
PC
1
addresses the multi—state questions discussed
in the R87—39
Opinion.
The Board
invited additional
public
comment on
these questions, but
received no additional
comment.
As
was’ discussed
in R87-39,
a definitive
answer will
probably require a position from USEPA headquarters.
The Board
will
return
to this issue when,
and if, it arises again.
This Opinion supports
the Board’s Order of this same day.
The Board will
withhold filing the rules
until
December
13,
1988,
to allow time for motions
for reconsideration by the agencies involved
in
the authorization process.
IT
IS
SO ORDERED
93—52
1
-10-
1,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the above Opinion was adopted
on
the
7
day
of
~
1988,
by
a
vote
of
7—~
Dorothy
M.
Gj$In,
Clerk
Illinois
Pol’Iutlon
Control
Board
93—522