iLLINOIS POLLUTION CONTROL BOARD
June
16, 1988
IN THE MATTER
OF:
)
RCRA UPDATE, USEPA REGULATIONS
)
R87-39
(7-1-87 THROUGH
12-31—87)
)
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 regulations.
On December
3,
1987 the Board opened
this docket
for the purpose
of
updating the RCRA rules
to agree with recent USEPA amendments.
The Board
adopted
for public
comment
a Proposed Opinion
and Order on February 25,
1988.
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 substanc&’
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 July
1 through December
31,
1987.
The Federal Registers utilized are
as follows:
52 Fed. Reg. 25760
July 8,
1987
52 Fed. Reg.
25942
July
9,
1987
52 Fed. Reg. 26012
July 10,
1987
52 Fed. Reg. 28697
August
3,
1987
52 Fed. Reg.
33936
September
9,
1987
52 Fed. Reg. 34779
September 15,
1987
52 Fed. Reg.
35893
September 23,
1987
52 Fed. Reg. 41295
October 27, 1987
52 Fed. Reg. 44313
November
18,
1987
52 Fed. Reg. 45787
December
1, 1987
In R86-46 the Board
passed over revisions to the chemical
listings which
appeared
at
Si Fed. Reg. 28298, August
6, 1986.
The Board
proposed these
The Board
appreciates
the assistance
of Morton Dorothy
in
drafting the
rules
and
Opinion.
90—267
—2—
revisions
in this Docket, but will
have to put this over
to the next Docket
for the
reasons discussed below.
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
proposed amendments appeared on April
8,
1988 at
12
111.
Reg.
6392.
The Board
has received the following public comment
in this matter:
PC
1 United States Environmental
Protection Agency
(USEPA), February
25,
1988
PC
2
Illinois Environmental
Protection Agency
(Agency), May 31, 1988
PC
3 Small
Business Office, Department of Commerce
and Community
Affairs
(DCCA), June
6, 1988
PC
4 USEPA,
June 6,
1988
PC
I was received prior
to
the Proposed Opinion and Order.
It suggested
inclusion of the August
6, 1986 Federal Register which
is discussed above.
In
formulating this proposal, the Board
relied
in part on
the public comment
received on these
listings when they were proposed
in R86-46.
The decision to
include these listings
in
the proposal
caused considerable delay
in
typing the
proposal
for publication
in
the Illinois Register.
The remaining public comments were filed eight
or more days after the
close of the
public comment
period.
The Board will accept this late comment,
although
it
has resulted in delay of this proceeding.
PC
3
is the Small
Business Analysis from DCCA,
which concluded that there
was
no
small
business impact.
The Board also received codification comments
from the Administrative Code Unit.
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
705
Procedures for
Permit
Issuance
709
Wastestream Authorizations
720
General
721
Identification
and Listing
722
Generator Standards
723
Transporter Standards
90—268
-3—
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-l8
51
PCB 31,
January 13,
1983,
7
Ill.
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
June
19, 1986;
10
111.
Reg. 13274, August
8, 1986.
R86-27
Dismissed April
16,
1987
(No USEPA amendments through
12/31/86).
R87—29
January 21, 1987;
12 Ill. Reg.
2450,
January
29,
1988;
(1/1/87
through 6/30/87)
R88-2
Proposed April
21, 1988
(7/1/87 through 12/31/87)
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
90—269
-4-
Board’s
actions
in adopting R82-l9
and R83-24.
(Commonwealth 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
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
July 11,
1986;
10 Ill. Reg. 13998, August
22, 1986.
(7/1/85
—-
1/31/86)
R86—19
October 23,
1986;
10
Ill.
Reg. 20630,
December
12,
1986.
(2/1/86
——
3/31/86)
R86—28
February
5
and
March
5,
1987;
11
Ill.
Reg. 6017,
April
3,
1987.
Correction April
16,
1987;
11
111. Reg.
8684, May 1,
1987.
(4/1/86
——
6/30/86)
R86—46
July
16,
1987; August
14, 1987;
11
111.
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
111.
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
This Docket.
(7/1/87
——
12/31/87)
Illinois received
final
authorization for the RCRA program effective
January 31,
1986.
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
,
1 984.
This was effectively
repealed by RB5-22, which included adoption of
USEPA’s dioxin
listings.
The Board
has adopted
a USEPA delisting
at the
request of Amoco:
R85—2
April
24,
1986;
10
Ill.
Reg.
8112,
effective May
2,
1986.
The Board
has procedures
to
be followed
in
cases
before
it involving the
90—270
-5—
RCRA regulations:
R84-lQ
62 PCB 87,
349, December 20,
1984 and January
10, 1985;
9
Ill.
Peg.
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:
R8l-25
60 PCB
381, October
25,
1984;
8 Ill. Peg.
24124, December
4,
1984;
R83—28
February
26,
1986;
10
111.
Reg. 4875, effective March
7,
1986.
R86-9
Emergency regulations
adopted 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 1987.
July 8
July 9
July 10
August
3
September 9
September
15
September
23
October
27
November 18
December
1
Restriction
of
“California List” wastes
List of
constituents
for groundwater monitoring
Technical
correction to chemical
listings
Readoption
of change
to
spent
pickle
liquor listing
Technical
correction
to
permit application
rules
Extension of date for submission
of Part A
applications by certain cement
kilns
Exception reporting bysmall
quantity generators
Incorporation by reference
of
“Test Methods”
Corporate guarantees for liability coverage
Codification of HSWA requirements
Several of these
actions
result
in
no
change
to the Illinois
rules.
The
August
3 correction
to the spent
pickle liquor
listing
in Section 721.132
contains no change
from the listing adopted
in P86-46.
The Federal Register
publication
is
a protective action
by USEPA to ward off
a
possible challenge
based
on defective procedures during
the previous action.
The September
15 extension
of
application dates
results
in
no amendment,
since the application dates are
not included
in
the rules.
In addition, the Board addressed
in the
proposal the August
6,
1986
90—271
-6-
revisions to
the chemical listings, which the Board passed
over in R86-46
pending correction
by USEPA.
However,
as discussed below, the
Board has to
drop this from the proposal
in order
to address the April
22, 1988
corrections.
DETAILED DISCUSSION
Section 702.181
This Section
is drawn from 40 CFR 270.4,
which was amended
at
52 Fed.
Reg. 45787, December
1,
1987.
The USEPA rule formerly provided that
compliance with
a RCRA permit constituted compliance with the RCRA Act.
This
has
been amended
to provide that direct
statutory requirements, and
40 CFR
268
land disposal
bans, override
any requirements in permits.
When the Board adopted this Section,
in R81—32,
it
rejected the concept
of the permit
as
a shield against enforcement.
As
a matter
of State law, the
RCRP~permit protects only against enforcement for failure
to have
a
permit.
Therefore the USEPA amendment
is irrelevant to
the State
program.
However,
the Board
has updated
the reference
to the USEPA rules,
and made other
technical
corrections
to this
rule.
Section 702.184
This Section
is drawn from 40 CFR 270.41, which was amended
at
52 Fed.
Reg. 45787, December
1,
1987.
USEPA has amended this Section
to allow
it
to
modify
permits to
reflect new statutory requirements.
Parts 702 through 704 were originally adopted based
on USEPA’s
consolidated
permit rules
then contained
in
40 CFR 122.
Part
702 contains
material
in common
to the RCRA and
UIC program, while Parts
703 and
704
contain material specific to the respective programs.
It
is becoming
increasingly difficult to maintain this structure now that USEPA’s
deconsolidated rules
are drifting farther apart
with respect
to the
programs.
This
is especially complicated
in
this rulemaking,
since the
December
1 amendments
include UIC amendments which will
be
addressed
in R88—2.
The
amendments
allow
the
Agency
to
modify
permits
to
reflect statutory
changes.
This
is
so basic
that
it probably doesn’t even need to
be
in
the
rules.
However, USEPA has made the change
to the
RCRA Section
270.41, but
not
to the corresponding UIC Section 144.39.
It would
be very difficult
for
the
Board
to modify this Section
to provide different rules for RCRA and UIC
permits.
The Board
declines to do so
on this minor point which
appears to
be
a drafting error by
USEPA.
(PC
2)
USEPA
has forwarded this question to
headquarters,
but indicates that the regulations will
be acceptable.
(PC 4)
Section
702.187
This Section
is drawn
from 40 CFR
270.42, which was amended
at
52 Fed.
Reg. 25760, July 8,
1987.
Sections 702.187(e)(9)
and
(10) have been amended
to
allow persons with RCRA permits
to use the minor modification procedures
to
modify their operations
to treat
or store
hazardous wastes subject to
a Part
728 restriction.
90—27 2
—7—
40 CFR 27O.42(p)(3)
includes
a reference
to “termination”
of
a permit
under Section 270.43.
In Section 7O2.187(e)(10)(C)
the Board
has cited
the
equivalent Section 702.186, which provides for
permit revocation by the Board.
This Section includes the first
of many references to Section 3004(d) of
the RCRA Act, which includes waste disposal
prohibitions
contained
in the
federal
statute, but
not
(yet)
reflected
in the regulations.
Rather than make
repeated references
to the
federal
statute,
the Board
has made
a
single
reference
in Section 728.139.
The complete library reference
is with the
incorporations by reference Section 720.111.
USEPA
has forwarded the question
of incorporating Section 3004 to
headquarters, but indicates that the
regulations will
be
acceptable.
(PC 4)
The Administrative Procedure Act
(APA)
includes limitations
on the use
of
incorporations by
reference
in rules,
and establishes procedures for prior
review of incorporations by
reference.
The important limitations are that the
material
be clearly referenced
in the rule and that
a date
be specified.
Section
22.4(a)
of the Act provides that identical
in substance
rulemaking
is
not subject
to the rulemaking procedures of Section
5
of the
APA.
Some of the incorporations by reference limitations
and procedures are
imposed pursuant to Section
5 of the APA, some are not.
It
is therefore
not
altogether clear what the APA incorporations by reference limitations
on this
rulemaking are.
(PC
2).
However, from the repeated amendments
to the
incorporations by reference provisions
in the APA,
it
is
clear that the
General Assembly believes that regulatory agencies have been abusing the
practice.
The Board therefore intends that,
if
it
is
in error,
it err
on
the
side of giving the
public complete notice
as
to what
is incorporated into the
regulations.
The federal
statutory reference appears to
serve the same function
as
an
incorporation by
reference,
i.e.
the rule
is deferring to Congress
for a
standard
for whether
a waste can be land disposed.
However, the APA mentions
incorporations by
reference only of
federal
regulations,
guidelines
and
industry standards.
There
is
no mention of federal statutes.
Does this mean
that federal
statutes cannot
be referenced
in rules,
or does
it mean that they
can be referenced without complying with the APA requirements?
From a practical
standpoint
it
is
useful
to
the public
to
have
a
full
library reference to
federal
statutes, and to have
a date specified.
There
is
no need to
reference future amendments
to Section
3004 of the
RCRA Act.
USEPA clearly
intends
to
reference current requirements which
have
future effective dates,
rather than future actions
of Congress.
The Board
will
be
updating the incorporations by reference Section
in frequent update
rulemakings,
so that there
is
little burden
in updating this
reference should
the
need arise.
There are also questions
as
to whether Section 22.4(a) authorizes
the
Board
to
adopt
federal
statutory
requirements,
and
as
to
whether
it
is
necessary
to
adopt
the
references
to
Section
3004
as
a
part
of
the
Illinois
program.
90—273
-8-
Section
22.4(a) authorizes the Board
to
adopt
“regulations which are
identical
in
substance to
federal
regulations
or amendments thereto
promulgated
by the Administrator of” USEPA.
(PC
2)
However,
the Board has
adopted many provisions which back reference federal
statutes.
For examples,
see Sections 703.153 (notification of hazardous waste
activity) and 721.101
(statutory definition of hazardous waste.)
The Board
has never had any
objections
to the adoption of
these provisions.
There
is
also
a question
as
to necessity for these
references
in the
State rules.
It
appears that USEPA
intends to adopt complete land disposal
limitations,
and intends to rely directly on Congress only
if rulemaking
is
delayed.
The Congressional
bans,
as
a
part of HSWA, are directly enforceable
as federal
law in
Illinois.
The State
is not required to
adopt anything until
USEPA implements them through regulations.
It appears that
an alternative to
adopting the references
to Section 3004 would
be omit them from the State
rules,
so that the
State rules reflected only those
portions of the program
contained
in
federal
regulations.
USEPA would
be
unlikely to object to
something which
results from its own rulemaking delays.
Meanwhile,
Congressional bans would be enforceable as
federal
law.
(PC 2)
Although USEPA did not address the Agency’s alternative
in its comment,
omission
of references
to Section
3004 appears to be acceptable from the
federal
perspective.
However,
it would
be downright misleading
to
the public
to omit
the reference from the State rules.
Section 2O(a)(8) of the Act
provides that
it
is
in the interest of the
people of the State
to avoid the
existence of duplicative, overlapping or conflicting State and
federal
hazardous waste programs.
MIG Investments
v.
IEPA,
Illinois Supreme Court,
April
25,
1988.
The Board
is therefore reluctant to
follow the course
of
omitting the references
to Section
3004.
The Board welcomes additional
comment
on this matter during the motion
for reconsideration
period.
Section 703.121
This Section
is drawn from 40 CFR
270.1, which was amended
at
52 Fed.
Peg. 45787, December
1,
1987.
This contains
the RCRA permit requirement.
It
has been amended
to specifically require post-closure RCRA permits for certain
units which
received waste
after July 26, 1982,
or which certified closure
after January 26,
1983.
Section
703.121
reads differently from 40 CFR 270.1(c) since
it
is really
the RCRA permit requirement of Section
21(f)
of the Act which the Board
is
implementing, rather than the
federal
statute.
The cross references to
definitions
in the
federal
language are
in Section 703.100(c).
The Board notes
that the effect
of this amendment is
to
impose the full
RCRA groundwater monitoring requirements
on facilities which closed under
interim status.
As USEPA
says:
In addition, new Section 3000(i)
(of RCRA) makes
compliance with certain Part 264 rules
a statutory
requirement.
Section 3000(i) subjects interim status
regulated units
to those ground-water monitoring,
unsaturated zone monitoring
and corrective action
90—274
—9—
requirements which
are applicable
to new permitted
units.
(45 Fed. Peg. 45794,
December
1,
1987.)
Section
703.141
This
Section
is
drawn from
40
CFR
270.60, which was amended
at
52
Fed.
Reg.
45787,
December
1,
1987.
This
modifies
the
permit
by rule requirement
for UIC wells.
Section 703.141(a)
grants
permits
by
rule to persons conducting ocean
disposal
of hazardous waste.
It was adopted
in P82—19.
Illinois will
not
attempt
to
get authority to administer
this portion
of the RCRA program.
(53
PCB
159)
The
Board therefore referenced
the USEPA rules
rather than the
equivalent Board rules.
However, this now causes problems with placing the
incorporations
by
reference into the
format which
is currently required by the
APA.
(PC
2)
In order
to
simplify matters,
the Board
has moved the references
to
40 CFR
220 and
264 to the incorporations by
reference Section.
The
reference to the Marine Protection, Research and Sanctuaries Act
is mere
surplusage,
and has
been deleted.
Section
703.155
This Section
is drawn from 40 CFR 270.72, which was amended
at
52 Fed.
Reg. 25760, July 8,
1987.
This Section specifies what modifications
the
operator of an interim status facility can make without filing
a Part
8 permit
application.
A
sentence has been added to Section
703.155(e)
to allow
interim
status facilities
to make changes
to treat
or
store
restricted hazardous
wastes
in containers.
The Board proposed,
but withdrew,
a similar State
rule
in R86—9.
At
51 Fed.
Reg. 25422, July 14,
1985,
USEPA added
a sentence to 40 CFR
270.72(e)
to allow interim status facilities
to modify tank systems
to meet
new requirements
without filing
a Part
B.
The Board
adopted this
in P86-46.
The July 8,
1987 amendment appears
to repeal
this sentence.
This
is
an
apparent
error
by USEPA.
The
Board
has left the sentence in.
(PC 2)
USEPA
has forwarded this question
to headquarters, but indicates that
the
regulations will
be acceptable.
(PC 4)
Section 703.159
This new Section
is drawn from 40 CFR 270.1(c)(5), which was amended
at
52 Fed.
Reg.
45787, December
1,
1987.
This allows
an
interim status owner
or
operator
to
attempt
to
demonstrate
closure
by
removal
or
decontamination
before
filing
a
Part
B application
for
a post-closure RCRA permit.
This provision
is difficult to
place
in the
rules
as
organized
by the
Board.
LJSEPA has placed
it next to the
RCRI\
permit
requirement,
in the
introductory Section to
Part 270.
This seems
to
be unusual
placement for
a
detailed, temporary requirement.
The Board has therefore
located
this
in the
Subpart devoted
to interim status
requirements.
40 CFR 270.1(c)(5)
sets
up
a mini—procedure similar
to the 40 CFR
124
or
35
111.
Adm. Code
705 permit
issuance procedures.
The USEPA rule provides for
90—275
-10-
public
notice
if the Regional
Administrator “believes”
that
the Part
264
standards
are met.
The Board
believes that this subjective,
personal
standard
is not acceptable under
the APA,
and has replaced
it with
a
requirement of
public
notice
“if the Agency makes
a tentative determination.”
This more
closely follows
the language of 40 CFR
124 and Part
705.
(PC
2)
40 CFR 270.1(c)(5)(ii)(A)
allows operators
to demonstrate
closure under
more
stringent state requirements,
rather than 40 CFR
264.
The Board
has
not
adopted this requirement,
since Part 807 did not include specific removal
or
decontamination standards.
Section 703.160
This new Section
is drawn from 40 CFR 270.1(c)(6), which was amended
at
52 Fed. Peg. 45787, December
1,
1987.
This includes
the procedural
details
for the determination made under Section 703.159.
This Section starts with
a
conditional:
“If
a facility owner/operator
seeks
an equivalency demonstration
...“
The Board
has changed
tnis to
“seeks
an equivalency determination.”
This
is may be
a typographical
error by USEPA.
The Board proposed to add
a Section 703.160(d) which would
have
referenced the
generic
appeal
provisions of Section
702.107.
The Board
solicited comment
as
to whether an
an operator should
be allowed to
appeal
a
determination that the operator
had not accomplished
a
clean closure,
or
whether
such an operator should
have to
raise such claims
following
a complete
Part B application.
The Agency objected
to the rule providing for an
appeal.
(PC
2)
Absent this provision,
all
interim status operators who accepted wastes
or
closed after the dates provided would
be
required
to file
a Part
B
application
for
a
post—closure
permit when requested by the Agency.
This
provision amounts
to
a waiver
of the requirement
to
file
a complete
application
if the operator makes
a satisfactory demonstration
of
a
clean
closure.
This process can
be viewed
on
the
one
hand
as
a
final
decision
that
a clean
closure has been accomplished,
or,
on the other,
as
an interim
decision
to request
additional
information.
In
the latter
sense this
is not
what
one would
view as
a final
Agency determination which could
be appealed.
Indeed,
the Agency’s denial
of the clean closure demonstration could
be
based
on inadequate
information,
which could
be
remedied through the filing of a
complete
Part B
application.
If the Board made the determination
a
final,
appealable action,
the operator would not
be allowed
to
renew the clean
closure demonstration
in
the complete application.
Instead,
the operator
would
be
forced
to appeal.
This would
introduce delay into the process
of
issuing RCRA permits
to every operator
in
need of one.
Accordingly, the Board
has dropped the reference to the appeal
provisions.
The
effect
of this
is
to
make the
clean closure demonstration
an
interim finding
by the Agency which
can be contested only through the Part
B application
process.
The Board
notes that an Agency determination that
an operator
had met the
clean closure standard would
be
a final
Agency determination excluding the
operator from the RCRA system.
The operator,
of course, would not want to
appeal
this decision.
However,
a third party could appeal
this to the extent
90—27 6
—11—
provided by statute
and the rules.
Section 703.185
This Section
is drawn from 40 CFR 270.14(c), which was amended
at
52 Fed.
Reg. 25942,
July
9,
1987, and corrected at
52 Fed. Peg. 33936, September
9,
1987.
The Section was amended
again
at
52 Fed.
Peg. 45787, December
1,
1987.
The amendments:
reference the new list of
groundwater contaminants
in
Part 264, Appendix
I;
correct language in Section 785.185(h)(5);
and, change
the reference to Section 724.190
in the introduction.
Section
703.187
This
new
Section
is
drawn
from 40
CFR
270.14(d), which was amended
at
52
Fed. Peg. 45787,
December
1,
1987.
It
adds
a
specific
information
packet
required
in
a Part
B application
if there are solid
(non—hazardous) waste
units present
at
the facility.
Section 703.188
This
new Section
is
drawn from 40 CFR 270.10(k), which was amended
at
52
Fed. Reg. 45787, December
1,
1987.
This allows USEPA to solicit additional
information to establish conditions
under
40 CFP 270.32(b)(2)
and 270.50(d).
The Board
has referenced Sections 703.241(a)(2)
and
702.161, which appear
to
be
the
equivalents.
These
concern
duration
of permits
and conditions
necessary
to
protect human
health
and the environment.
(PC
2)
USEPA
has
forwarded this question to
headquarters, but indicates that the regulations
will
be acceptable.
(PC 4)
Section
720.111
This Section
is drawn from 40 CFR 260.11, which was amended
at
52 Fed.
Reg.
41295, October
27,
1987.
This
is
a
technical correction to add
40
CFP
268 to the
list of Parts
covered
by the incorporations by
reference Section.
The USEPA scheme of forward—referencing from the incorporations by
reference Section does
not work
in
Illinois
for two reasons.
First, under the
codification rules each Part
has
to
be self—contained.
Second,
the APA
requires specific identification
of
incorporated items.
Therefore, the Board
back-references
to Section
720.111 when
it
uses any incorporated material.
Since the attempted forward—reference serves
no purpose,
the Board
has deleted
it.
(PC
2)
The Board
has added
a reference to section 3004 of the Resource
Conservation and Recovery Act, which
is
used in Section 728.139.
(PC
2)
This
has been discussed above.
The Board
has added
a
number
of references
to the
Code of Federal
Regulations
as
paragraph
(b).
40 CFR 220 and
264 are used
in Section
703.141.
40 CFP
761
is USEPA’s PCB burning rules, which are referenced
in
Part 268, discussed below.
Note that the CFP references placed
in Section
720.111 are
“odd”
90—277
-12-
references,
those which are used
in
a Section which
is not the equivalent
of
the
federal
Section
being
referenced.
This
is
in
contrast
with
“normal”
references,
for
example
40
CFR
261,
Appendix
II,
which
is
incorporated
by
reference
in Section 721.Appendix
B.
The
reason
for the different treatment
is the APA limitation
on incorporation of future amendments.
When USEPA
references
40 CFR
761 in
40 CFR 268,
it means to include future
amendments to
Part 761.
The Board must reference
a
certain edition.
Updating
the odd
incorporations would
be
an impossible task
if they were scattered about the
rules.
However,
a USEPA amendment to
a
normal
incorporation would
be
picked
up
in the
normal
course
of events.
In R87-5 the Board
added
a reference to
“Generic Quality Assurance
Project
Plan for Land Disposal Restrictions”.
This was inadvertently omitted
when this Section was amended
in R87-26.
The Board
has readded
this to the
list of
incorporations.
This
has been moved
to
the NTIS portion
of the
references,
since the document is
now actually available through NTIS,
rather
than USEPA.
The Board has
added NTIS references
to two documents which
are referenced
in Section
725.192, which
is
not involved
in
this proposal.
These
are
“Procedures Manual
for Ground Water Monitoring
at Solid Waste Disposal
Facilities”
and “Methods for Analysis of Water and Wastes”.
The Board
has also corrected the document numbers
in the two ASTM
references, which are two methods
for determining flashpoint.
Both included
typographical
errors, which have been corrected.
In addition, the reference
to the Setaflash Closed Tester has
been updated
to
reference the 1981 version,
rather than the
1978 version.
The earlier version
is
no longer readily
available.
The 1981 version was actually out before
the Board
adopted the
rule.
The differences between the
1978 and 1981 versions
appear to
be non—
substantive.
There
is
also
a 1987 revision to this ASTM standard which
appears
to
be substantive.
The Board will
propose
to
update this reference in
the
near future.
Section 721.132
Not amended
This Section
is drawn from 40 CFR 261.32, which was amended
at
52 Fed.
Reg. 28697, August
3,
1987.
This concerns
spent
pickle liquor, which
has
been
visited
in many previous dockets.
The USEPA action
readopts the existing
language without change.
No Board
action
is necessary.
Section
721.133
This Section
is
drawn from 40 CFR 261.33, which was amended
at
52 Fed.
Reg. 26012, July
10,
1987.
This Section was also amended
at
51 Fed. Reg.
28298, August
6,
1986.
The July 10 amendment restores
the empty container
language which USEPA inadvertently replaced with older language
in
a
recent
rulemaking.
The main change
to this Section
is from the August
6,
1986 Federal
Register.
This was
a supposedly non—substantive
recodification of the
chemical
listings.
However,
it appeared to contain many errors.
The Board
withdrew this from consideration
in R86—46
at USEPA’s suggestion.
USEPA
90—278
—13—
indicated that
a
correction would
be forthcoming,
and that the Board
could
proceed.
(PC
1)
The correction appeared at
53 Fed. Reg. 13382,
April
22,
1988.
(PC
4)
Note that this
is outside the
period under consideration
in
this rulemaking.
Among the errors
in
the August
6, 1986 Federal Register, were
the
omission of P074,
nickel
cyanide from 40 CFR
261.33,
and
the omission of
formic acid from 40 CFR 261, Appendix VIII.
These have been relisted in the
April
22,
1988
Register.
It would
be desirable to proceed
now with the revisions to the
listings.
However, the
recent Federal Register presents the
lists
as
revised,
with no clues whatsoever
as
to what
the corrections
are.
It would take
several weeks
to accomplish
a line—by—line
comparison.
However, this
rulemaking has already been delayed
enough.
The Board will therefore withdraw
this portion
of the proposal.
The Board will
correct the typographical
errors
noted
by USEPA, add
the corrections from April
22,
and repropose the corrected
listings with the next update.
USEPA viewed both the August
6,
1986 and the April
22,
1988 actions
as
technical changes which were supposed to change the format,
but not
the
substance,
of the
rules.
The Board
believes that its listings remain
identical
in
substance with the USEPA rules, even though
it has not adopted
the
1986 format changes, errors
or
corrections.
Appendix
H
The listing of
hazardous constituents was
also revised
in the August
6,
1986 Federal Register,
and corrected on April
22,
1988.
This
is
drawn
from 40
CFR
261, Appendix VIII.
Note that the 1987 edition
of the CFR
has two
Appendix VII’s, the
second
of which should
be Appendix
VIII.
Section 722.142
The corresponding federal Section
was amended
at
52 Fed. Reg. 35893,
September 23,
1987.
This Section concerns “exception reports,” which the generator makes
to
the Agency
if the generator does
not receive
a
copy of the manifest back from
the treatment,
storage
or disposal
facility within
a specified number
of days
after
shipping waste.
The subsections have been renumbered.
The existing
language
is
now
in
subsection
(a), which applies only to generators of over
1000 kilograms per month.
New subsection
(b) requires generators of
100 to
1000 kilograms per month to
send the manifest with an explanatory note to the
Agency,
rather than
fill out
the exception report form.
The existing and amended form of this Section require the generator to
report exceptions
to
IEPA even
if the waste was shipped
out of State.
(PC
2)
Section 722.144
The corresponding federal Section was amended
at
52 Fed. Reg. 35893,
September 23,
1987.
90—279
-14-
The amendment adds exception reports
to
the list of regulations with
which generators
of 100 to
1000 kg/month have to
comply.
USEPA’s wording
in
this amendment
is ambiguous.
It
reads:
“A generator
is
subject only to the following requirements
in this Subpart:
...“
Does
this mean that the generator
is
subject
to
only
the following requirements,
which,
by the
way,
are in this Subpart.
Or, does this mean that,
of the
requirements
in this Subpart,
the generator
is
subject
to
only the
following?
The
Board has modified
the wording slightly to make
it clear that
the
latter
is the correct
intent:
the Section
is listing those portions of
the Subpart which apply
to
small
quantity
generators.
The
former
interpretation
is
not correct, because
it
renders the
phrase
“in
this Subpart”
surplusage.
(PC
2,
4)
The former interpretation would also represent
a
drastic shift
in meaning between the old
and amended Section.
If USEPA had
intended such
a drastic shift,
it would
have been more clear
in the wording.
Section
722.170
The corresponding federal Section was amended
at
52 Fed. Peg. 25760, July
8,
1987.
This Section has been amended to exempt farmers from the
land disposal
restrictions
in
addition
to the rest
of the hazardous waste disposal
rules
with respect
to disposal of waste
pesticides
on
the farm.
The USEPA amendment purports
to amend
40 CFR
262.51.
However, USEPA
renumbered this
to Section 262.70
at
51 Fed. Peg. 28682, August
8, 1986.
The
Board
renumbered Section
722.151
to 722.170
in R86-46.
Section
262.51 now
deals with exports
of hazardous waste.
Section 724.113
The corresponding federal Section was amended
at
52 Fed. Reg. 25760, July
8,
1987.
The amendment
is
to Section 724.113(b)(7)(C).
It
concerns waste
analysis plans for certain
surface impoundments which treat wastes restricted
under Part
728.
Section 724.198
The corresponding federal
Section was amended
at
52 Fed. Reg. 25942, July
9, 1987.
As
is
discussed
below, Appendix
I
(big letter “i) has been
added
to
list
groundwater contaminants for which monitoring
is
required.
Section
724.198(h)(2)
—
(4) have been added to reference this list instead
of
the Part
721, Appendix
H
list of
hazardous constituents.
Section 724.199
The corresponding federal Section was amended
at
52 Fed.
Peg.
25942, July
9,
1987.
This Section
has also been amended
to reference Appendix
I.
Section 724.200
90—280
—15—
The corresponding federal
Section was amended
at
52 Fed. Reg. 45787,
December
1, 1987.
Section 724.200(e) has
been amended.
Pursuant to
the 1984
amendments
to the RCRA Act, operators
are required
to conduct corrective
action
to
address groundwater contamination beyond
the facility boundary,
unless the operator
is unable
to obtain the necessary permission.
This Section
is
ambiguous
in the
format presented
in the Federal
Register.
The introductory paragraph to the existing Section ends with a
sentence stating that:
“The permit will specify measures
to
be taken”,
followed by two
items.
This sentence which
introduces the list has
been
dropped from the federal
introductory text, but the
items
of the
list are
renumbered
to subsections
(3)
and
(4).
New subsections
(1)
and
(2)
are
separated by
a semi-colon and
end in
a period,
as though they were
a
list of
two.
The Board
believes that the resulting list of four
is not what USEPA
intended.
USEPA has forwarded this question
to headquarters, but indicates
that the regulations will
be
acceptable.
(PC 4)
The Board
has retained all
of the existing language.
The new items are labeled subsections
(1)(A) and
(B),
and the old introductory text and
items
are labeled
(2)(A)
and
(B).
(PC
2)
The
federal
Section
provides
that
“tne
owner/operator
is
not
relieved”
of
all
responsibility by failure
to get permission
to
clean
up adjacent
property.
It
is doubtful whether this meets codification requirements.
The
Board
has rendered this as
“the owner and operator
are not relieved
...“
Section 724.201
The corresponding federal Section was
amended
at
52 Fed.
Reg. 45787,
December
1,
1987.
Similar corrective
action beyond
the facility boundary
is
required for solid waste management
units present
at
hazardous waste
facil ities.
Section
724.247
The corresponding federal Section was amended
at
52 Fed. Reg. 44313,
November
18,
1987.
The amendments are
to 40 CFR
147(g)(2),
which concerns
corporate guarantees
in lieu
of liability insurance.
This
is
a minor
correction
to
interim final
rules adopted by USEPA
at
51 Fed. Reg. 25354, July
11,
1986.
The Board
addressed these
in
R86-46.
As was discussed
in P86—46,
there are
a number
of problems with the USEPA
rule
as adopted
in
1986.
These center
on the parent
corporation guarantee
in
lieu of liability insurance.
This
is
a
lot
like writing
an
insurance contract
or bond,
which
is
a regulated activity
in most states.
Also,
it
could
be
an
ultra
vires act under the
law of the
state
of incorporation or articles of
incorporation.
Furthermore,
there
is
a question
as
to whether the guarantee
is
governed by the
law of the
state
of
incorporation,
the place
of execution
of the guarantee or the location of the facility covered
by the guarantee.
Some states
have strict consumer protection
laws
on
guarantees, which could
apply
to corporations.
In the RCRA context, this
is compounded
by the
ambiguity
as
to whether,
in
a multi-state situation, the
federal
RCPA rules
govern,
or
the derivative
rules
in
the
states involved.
In
addition, there
90—281
-16-
are practical
problems which
Illinois or
its citizens would face
if they
had
to collect
on
guarantees
in the courts
of
other
states.
USEPA
has
not addressed many of these
concerns
in
the final
rules.
Rather,
it
has tightened
the
rules
to require corporations which are
incorporated outside the U.S.
to maintain
a
registered agent for service of
process in each state
in which
a facility covered by the guarantee
is
located.
From the State’s perspective
this addresses only
a
tiny portion of
the enforceability problem.
As was discussed
in R86-46,
40 CFR 264.147(g)(2)
is
a directive to
the
states
to adopt
a
type of
regulation,
rather than
a rule which the
states
are
supposed to adopt.
The Board
implemented
the directive by
requiring that
guarantees
be
signed
in
Illinois,
and that
the guarantor agree that Illinois
law
applies
and submit
to Illinois court jurisdiction.
This assures that the
guarantee
is enforceable
in Illinois.
USEPA has indicated
in
the November 18
Federal Register that the Illinois Attorney General
has
so certified.
The
Board
construes this
as
a ratification of
its
action
in R86—46.
The Board did
not intend
to
adopt
a more stringent requirement
in R86-46,
or
in this Docket.
(PC 4)
The Board adopted
a rule which allows
the Illinois
Attorney General
to
issue
a generic certification that parent
corporation
guarantees are “a
legally valid
and enforceable
obligation.”
(40 CFR
147(g)(2))
There are other ways to formulate a rule which meets
the federal
prescription.
The Board
suggested
several
in the proposed Opinion
in R86-
46.
No commenters objected,
and the Board
adopted the
rule described above
as
an
identical
in
substance rule.
In R86-46 the Board
also solicited comment
on the question of whether the
corporate guarantee amounted to transacting the business
of
insurance.
The
Department
of Insurance indicated
in P86-46 that
it did not
regard this type
of
guarantee as
being subject
to
its regulation.
In this Docket the Agency
has noted that Section
13.05 of the new Business Corporations Act prohibits
the Secretary of State from issuing
a certificate of authority to
a
foreign
corporation to transact
the business of insurance.
(PC 2)
The Board
believes
that,
based
on the Department
of Insurance’s earlier answer,
the
parent
corporation would
not,
as
a matter
of
Illinois law,
be transacting the
business of
insurance.
The USEPA rule now requires foreign
(non-U.S.)
corporations to maintain
a
registered agent
in each state
in which there
is
a
facility covered
by
a
parent
corporation
guarantee.
It
is
appropriate
for
the
Board
to
add
this
requirement
to
its
rule.
The Board
has referenced Section 5.05 of the
Business Corporations Act
(Ill.
Rev. Stat.
1985,
ch. 32,
par. 5.05) which
requires certain corporations
to maintain
a registered agent
in the
State.
The general requirement
to maintain
a
registered agent applies only to
foreign corporations
“transacting business”
in
Illinois.
Mere ownership of
a
subsidiary or guaranteeing the subsidiary’s debts may not constitute
“transacting business”
in
Illinois.
The Board
requested comment
from the
Corporation Division
as
to whether
it
would allow foreign corporations to
register under
these circumstances,
but
received
no
response.
As noted
above,
the guarantee is not the same
as transacting the business
of insurance,
so
0—282
—17—
that there
is
no
limitation
in Section
13.05
of the Business Corporations
Act.
(PC 2)
The Board
has
added
a reference
to the similar provision pertaining to
not—for—profit corporations.
(ch.
32,
par.
105.05)
It
is
conceivable that
a
not—for-profit corporation could own the required 50
interest
in
a for-profit
corporation and
that the not-for—profit corporation could pledge
its assets to
cover the subsidiary’s
liability consistent with
its corporate powers.
(PC 2)
There
is
an additional
question
as to
how to
shrink the registered
agent
requirement from federal
to State law.
USEPA requires corporations organized
outside
its jurisdiction
(the U.S.)
to maintain
a registered agent within
its
jurisdiction
(in any state).
Should
Illinois require
a registered agent
for
corporations
organized outside its own jurisdiction,
or outside of USEPA’s
jun sdiction?
There
are three classes of corporations concerned:
Illinois
corporations, U.S. corporations
organized
in
another
state
and non-U.S.
corporations.
The Corporations Act treats
the
latter two classes the same
with respect
to the registered
agent
requirement.
The question
is whether
the
Board should draw
a distinction between foreign
(U.S.)
and foreign
(non-U.S.)
corporations.
USEPA
has forwarded this question
to
headquarters, but
indicates that the regulations will
be acceptable.
(PC
4)
The purpose
of the registered agent
requirement
is
to assure
that the
agency which administers the
rules can easily sue
to collect
on
a guarantee.
USEPA maintains offices
all
over the U.S.,
and can easily
sue
in any state.
However,
Illinois does
not generally maintain
a presence
in
all
states,
and
would face the
same problems suing
in
other states
as USEPA would face suing
in foreign countries.
Therefore, drawing
a distinction
between foreign
(U.S.)
and
foreign (non—U.S.)
corporations
serves
no purpose
in State
law.
It would
therefore violate equal
protection requirements to
require registration
of
foreign
(non—U.S.),
but
not foreign
(U.S.)
corporations.
The Board has
therefore required
all corporations to maintain
a
registered agent
in
Illinois
as
a
condition precedent to using the corporate guarantee.
Under the new Business Corporation Act the registered
agent
requirements
for Illinois
and non—Illinois corporations
are
in the
same Section.
All
Illinois corporations
have to have
a registered agent
under Section 5.05,
regardless
of whether they transact business
in Illinois.
The Board
rule
is
really intended to assure that non—Illinois corporations maintain
a registered
agent.
However,
there
is
no
need to
so
specify
in
the rule,
since
all
Illinois corporations meet the requirement anyway.
Section 724.251
The corresponding federal Section was amended
at
52 Fed. Reg. 44313,
November
18,
1987.
The amendment prescribes the
forms for the corporate
guarantee.
The Board has incorporated
this Section
by reference without
setting
it out
in
full.
The Board has updated
the incorporation.
The Agency
will
promulgate forms based
on the
federal
forms.
Section 724.Appendix
I
90—283
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The corresponding federal Section was amended
at
52 Fed. Peg.
25942, July
9,
1987.
This
is
the
list of groundwater contaminants
for which monitoring
is
now
required.
The list replaces the complete list of hazardous constituents
in Part 721
for purposes
of
specifying groundwater monitoring
parameters.
Section
725.101
The corresponding federal Section was amended
at
52 Fed. Reg. 45787,
December
1,
1987.
Section 725.101(c)(2)
has
been deleted,
so that
a
person
who operates
an
injection well only may now be
subject
to the RCRP
interim
status requirements.
The Board agrees that
it
would
be desirable to
insert
the word “reserved”
into the place
of subsection
(c)(2).
However, the Code
Unit will
not allow this.
(PC
2)
Section 725.113
The corresponding federal Section was amended
at
52 Fed. Reg. 25760, July
8,
1987.
Section 725.113(b)(7)
has been amended
to make waste analysis plans
consistent with Part
728.
Section
725.247
The corresponding federal Section was amended
at
52 Fed. Reg. 44313,
November
18, 1987.
The corporate guarantee
for liability insurance for
interim
status facilities has been modified
along the lines discussed above
under Section 724.247.
Section 728.101
Part
728
is
drawn from 40 CFR
268, which was amended
at
52 Fed.
Reg.
25760, July 8, 1987.
This is USEPA’s land disposal
restrictions which the
Board
adopted
in R87-5.
The amendments mainly
implement the HSWA requirement
that USEPA ban “Calfornia List” wastes.
These should have little
impact
in
Illinois, since most of these wastes are already restricted
in
Part
729, which
the Board adopted pursuant to
State authority
in R81-25 and R83-28.
Section 728.1O1(c)(5) has
been added
to exempt
farmers from Part
728.
This correlates with Section 722.170.
As
is discussed
above, USEPA has
referenced the wrong Section number.
Section 728.102
Definitions have been added for “halogenated organic compound”
(“HOCs”)
and
“polychlorinated
biphenyls”
(“PCBs”).
The
definition
of
HOC
references
the
list
in new Appendix C, discussed below.
PCB references
40 CFR
761.3, the
USEPA regulations
for disposal
of PCBs.
The Board
has added
40 CFR 761
to
the
incorporations by reference
in Section 720.111, discussed above.
USEPA has also made
a subtle change
to the definition of “land disposal”,
inserting
“or placement
in” before “concrete
vault
or bunker
intended for
storage purposes.”
This serves
to
separate
the question of intent
from the
rest of
the methods, which are clearly disposal.
90—284
—19—
The Board has also added
a definition of “ppm”, which
is
used
in the
rules.
Section 728.103
The prohibition
on dilution
has been expanded to include dilution
to
avoid
an effective date,
or
to avoid
a ban under Subpart
C
or section
3004 of
the Resource
Conservation and Recovery Act.
Section 728.104
When originally adopted,
40 CFR
728.4 had
a subsection
(a),
but
no
(b).
This
is prohibited under
Illinois codification rules.
USEPA has now added
a
subsection
(b), forcing
a complete relabeling
of the Illinois subsections.
This Section
allows the use of lagoons for treatment of wastes which
are
subject
to
a
land disposal
ban.
New subsection
(b) excludes evaporation
of
hazardous constituents from the types of treatment which
can be conducted
in
such lagoons.
Therefore,
evaporation
lagoons
are considered
land disposal
lagoons.
Note that this
is different from the distinction drawn
in Section
729.100(b)
in
the Illinois
bans, which prohibits placement
in such lagoons
if
hazardous constituents
are expected to
remain
after
closure.
Under Section
728.101(d), Parts 728 and 729 are cumulative,
so that
the Part 728 ban would
now apply to any evaporation lagoons which would qualify
as treatment lagoons
under Part
729.
An example might
be
a
lined
aeration lagoon
in which
a
volatile chlorinated
solvent
is
stripped from waste water by evaporation.
This would
qualify
as
a treatment lagoon under
Part
729, assuming
it would
be
possible to
remove the liner
and accomplish
a clean
closure.
However, this
would
be land disposal
under
Part 728 regardless
of whether
a
clean closure
is
possible.
Note, however, that this type of treatment lagoon might
be exempt
from the RCRA requirements
if
it
is
a part of
a wastewaster treatment plant
permitted
under
NPDES or
the pretreatment program.
Section
728.105
The Board has updated the incorporation by
reference of the USEPA
procedures
for case-by-case extensions
of the effective date.
Section 728.106
Section 728.106(k) has
been added.
Liquid
hazardous wastes containing
greater
than
500 ppm PCBs cannot
be the
subject
of
a
petition
for an adjusted
standard under this Section.
Section 728.107
The waste analysis requirements
have been amended, mainly
to
reference
Section
728.132
and
section
3004(d)
of
the Resource Conservation
and Recovery
Act.
40 CFR 268.7(a)(1)
is
ambiguous.
It
reads
as
follows:
90—285
-20-
If
a generator determines that
he
is managing
a
restricted waste under this part and
the waste does not
meet the applicable treatment standards,
or where the
waste does
not comply with the applicable prohibitions
set
forth
in §268.32
of the
part or
PCRA section 3004(d),
with each shipment
the generator must notify the
treatment facility
The Board
has rendered this as:
If
a
generator determines
that he
is managing
a
restricted waste,
...
or
that the waste does not comply
with
...
the
generator
must
notify
An alternative reading would interpret
the “where” clause
as
a
second
“if” clause.
However, this seems
to
suggest that someone
other than
the
generator makes the determination as
to whether the waste complies with
Section 728.132
and RCRA.
This would
be contrary
to
the general
framework of
the rules which places this obligation
on the generator.
(PC
2)
Section 728.132
This Section
is
drawn from 40 CFR 268.32.
In
addition
to the July 8,
1987 amendments
noted
above, this Section was amended
at
52 Fed. Reg. 41295,
October 27, 1987.
This
is the USEPA ban
on “California List wastes,” which
are
listed
in Appendix
C.
These
are halogenated organic compounds and PCBs.
These should have little impact
in Illinois,
since most
of these wastes are
banned
in Part
729 pursuant to State
restrictions adopted
in R81-25 and P83—
28.
Section 728.100 makes these Parts
cumulative.
Some of these restrictions became effective as federal
law on July
8,
1987.
The Board has not made these effective as
State law retroactively.
Rather,
they will
become effective when these
rules are
filed.
The effective date is delayed until
November
8, 1988 for CERCLA response
wastes and RCRA corrective action wastes.
The Board
has referenced the term
“RCRA corrective
action”, which was defined
in R86-46.
RCRA corrective action
wastes
include
wastes
produced
under
RCRA
programs
in
other
states,
as
well
as
Illinois.
Section 728.139
The
Board has
added this Section
to
require compliance with land disposal
bans imposed directly by Congress
in
section 3004(d) of the Resource
Conservation and Recovery Act.
This format
simplifies compliance with the APA
incorporations
by reference requirements,
and assures
that there
is
a State
regulation which could
be cited
in
an enforcement action against someone
violating
a Congressional
ban which
has not yet been implemented
in
the
regulations.
This
has been discussed above.
Section
728.140 and 728.142
90—286
—21—
Section 728.142(a)
has
been modified
to
specify certain treatment
technologies
for California List wastes.
This
is generally incineration.
Section 728.140(b)
has
been added
to allow land disposal
of residuals either
from the specified treatment technology
or from an equivalent technology
approved
by the Agency under Section 728.142.
USEPA references
its
PCB incineration
standards
found
at 40
CFR 761.
The
Board has added
these
to the incorporations by
reference Section discussed
above.
The existing language adopted
in R87-5
and the amendments substitute
“Agency”
for “Regional Administrator”
in the USEPA rules.
There
is
a question
of who decides whether
a waste can be
land disposed
in
a multistate
situation.
For example,
consider
an original
generator
in State A,
who ships
a waste
to
a commercial
treatment facility in State
8, which
ships
a residual
to
a
land disposal
facility
in State
C.
Whose rules
apply,
and which entity
has authority to decide whether the residual
can be
land disposed, USEPA,
or
States
A,
B
or C?
In the proposed Opinion the
Board
suggested the following
for comment:
40
CFR
268 imposes the obligation
on the “generator”
of
the waste which
is
land
disposed
to make the
initial decision as
to whether the waste
can
be
land
disposed.
In the example,
the waste which
is
to
be
land disposed
is the
treatment residual
produced
in State
B,
and the “generator”
is the treatment
facility.
If State
B
has RCRA authorization, State B’s law would apply,
and
any demonstrations would
be made to the appropriate
agency
in State
B.
If
State
B does
not have authorization, USEPA’s rules would
apply,
and the
Regional Administrator would receive any petitions.
State C would
have
to
accept the decision of State
B or the Regional Administrator
as
to whether the
residual
can
be land disposed under the RCRA
rules,
even though the disposal
takes
place
in State
C.
However, State
C could reject
the waste
based
on
local,
non—RCRA law.
Also,
State C’s RCRA rules would require manifesting and
proper documentation before
receipt
at the disposal
facility;
and State A’s
RCRA rules would
require manifesting and documentation by the original
generator.
USEPA has forwarded this question to headquarters, but indicates that the
regulations will
be
acceptable.
(PC 4)
The Agency
has taken
issue with this
interpretation, and suggested alternative language.
(PC
2)
The Board will
address
the Agency’s coments, but reserves the
right
to reconsider
if and
when USEPA responds.
The Agency’s current practice with respect
to waste
destined for out-of-
State disposal
is
to
ensure only that the waste
is properly manifested.
The
Agency does not
accept the
notion that the generator makes
a determination
as
to whether
a waste can
be land disposed,
or that the
state
of generation’s
laws necessarily apply.
(PC 2)
40 CFR 262.11
and 35
Ill.
Adm. Code 722.111 provide
as follows:
A person who generates
a
solid waste
...
must determine
if that waste
is
a hazardous waste
90—287
—22—
40 CFR
268.7
and
35 Ill. Adm. Code 728.107 provide
as follows:
The
generator
must
test
his
waste
...,
or
use knowledge of the waste,
to determine
if the waste
is
restricted
from land disposal
under this
part.
The federal
regulations clearly impose the duty on the generator to make
the
initial determination as
to whether
a waste
is
a
hazardous waste
and as
to
whether
it can be land disposed.
The law which applies
at the
point
of
generation
governs this process.
However, USEPA will
ensure
that each
authorized State
has an equivalent rule.
If there
is
some sort
of agency
action
involving the generator determination,
such
as
the demonstrations of
alternative treatment methods
or inappropriate technology provided
in
40 CFR
268.42
or 268.44,
such action should be
taken
by
the RCRA authority
in the
generator’s state,
subject
to
the RCRA rules
applicable
in
that state.
There
are
practical
reasons why this should
be
the interpretation.
Suppose
a generator uses disposal
facilities
in
several
states.
Applying the
law of the place
of disposal
would mean that several
states’
law would
apply
to the
act of generation.
It would
require the generator to make similar
demonstrations to the RCRA authority
in
each state, with the possibility of
inconsistent results.
This would also cost
a lot more, both for the generator
and government
as
a whole.
It
is
far more efficient to
leave
the decision
to
the RCRA authority at the place of generation,
and require
all
states to abide
by
the
result.
In
addition, many of the hazardous wastes are defined
in terms
of the production
or treatment process which produces them,
rather than by
inherent properties
of the waste,
and many of
the landfilling restrictions
require certain processes to
be
employed
in treatment of the wastes.
Only the
generator knows this information.
The
Agency
has
traditionally
controlled
hazardous
waste
disposal
through
the
“green
sheets”
required by Part
807.
This
is
a disposer-centered system,
in which the
green sheets
are amendments
to the disposal facility’s
permit.
In the past
the Agency
has expressed
a preference for
a disposer-centered
system,
since
it minimizes the number of entities with which the Agency has
to
deal.
The Board considered this along with the problems which
a disposer—
centered
system creates
at
the State level
when it adopted the generator—
centered wastestream authorization
in Part
709.
(R83—28, Opinion
of February
26,
1986,
p.
25.)
The
Board
is concerned that the Agency
is continuing
to
argue for
a disposer-centered system even
in the RCRA context years
after this
issue was settled.
The generator
is
required to manifest waste shipped
out of state.
The
Agency
has suggested that its
job
is just
to require
proper manifesting of
waste destined for disposal outside the State.
This suggestion ignores
the
Agency’s other duties to
regulate generators
pursuant to
40 CFR
262 and 268.
40 CFR
268.7
includes
a
requirement that the generator certify to the
disposal
facility
as
to compliance with the RCRA disposal
restrictions.
As
discussed above,
40 CFR
264.13
and
35 Ill. Adm. Code 724.113
require the
disposal
facility to have
a waste
analysis plan which,
among
other things,
assures that the waste
complies with the
land disposal
bans.
The receiving
state
should monitor
this process,
and coordinate with USEPA and the
90—288
—23—
generator’s
state
if non-compliance
is detected.
In the case of waste
coming
into Illinois, the Board’s rules
and the Act
require
a wastestream authorization.
The Agency
should
review each
wastestream
to assure compliance with the Illinois land disposal restrictions
contained
in the Act
and
in Part
729,
and
refuse
any waste which does
not
comply
with
more
stringent
State
law.
However,
the
Agency
should
judge
compliance with the PCRA bans based
on
the law of the generator’s
state,
and
respect any determinations which
the RCRA authority makes
in the generator’s
state.
If the Agency believes the RCRA authority
is
not doing
its job,
it
should complain
to USEPA.
The main advantage of this interpretation
is that
it
is
possible to just
change “Regional Administrator”
to
“Agency” and adopt
the federal
text.
If
the Agency’s
interpretation were accepted,
the rules would
be misleading
and
incomplete with respect
to the multistate
situation.
It would
be necessary
to
write different
rules
to cover this situation.
The Board welcomes additional
comment
on this matter during
the motion
for
reconsideration
period.
Section 728.150
This Section prohibits the storage of restricted wastes except
under
specified conditions.
This
has been amended
to reference
new Section 728.132
and section 3004 of the Resource Conservation and Recovery Act.
Paragraph
(f)
references the storage standards of
40 CFR
761.65 for
PCBs,
and requires
treatment within one year.
Section 728.Appendix
C
This is the list of halogenated organic compounds prohibited
under
Section
728.132.
There are two obvious errors
in
this list.
“1,2—Dibromomethane” should
probably be
“1,2—Dibromoethane”.
“Hexachloroprohene” should
probably
be
“hexachlorophene.”
The ethers should
be separated into two words.
USEPA
has indicated that
it
believes “1,2—Dibromomethane”
is
correct.
(PC 4).
This name fails to describe
a chemical compound,
since methane
has
only one carbon
on which
to hang
the two bromines.
USEPA probably
intended
to
the entry to
be either
“l,l—Dibromomethane”
or “1,2—Dibromoethane”.
“1,2—
Dibromomethane”
could
be
formed
by
a simple,
one character typographical
error
from either
of these.
The Board
believes that the
latter, “1,2-Dibromoethane”
is what USEPA intended.
“l,l—Dibromomethane”
is unlikely for two reasons.
First,
the name violates the
rule of nomenclature
against specifying numbers
when only
a
single
isomer
is possible.
Indeed, 1,1-Dibromomethane should
be
named simply “Dibromornethane”.
Second,
the entry would add nothing to the
list,
since Dibromomethane
is
already
on
the list.
This Opinion supports the Board’s Order
of this same day.
The Board
will
90—289
-24-
withhold filing of these
rules for 30 days
to
allow for
final
review by
the
agencies involved in the authorization process
and for
any motions
to
reconsider.
IT
IS
SO ORDERED
I, Dorothy
fri. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify that the above Opinion was adopted
on the /~t~day
of
~~‘t-#~
1988,
by
a vote of
~‘7~)
•
Dorothy
M. G7nn,
Clerk
Illinois Pollution Control Board
90—290
