ILLINOIS POLLUTION CONTROL BOARD
February
25,
1988
IN THE MATTER OF:
RCRA UPDATE,
USEPA REGULATIONS
)
R87-39
(7-1-87 THROUGH 12-31-87)
PROPOSAL FOR PUBLIC COMMENT
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 regulations.
Un December
3, 1987 the
Board opened
this docket for the purpose
of
updating the
RCRA rules
to agree with recent USEPA amendments.
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 Comittee 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
51 Fed.
Reg. 28298, August
6,
1986.
The
Board will propose these
revisions as modified
by USEPA.
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.
86—505
-2-
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
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.
keg.
4828, April
23,
1982.
R82-l8
51
PCB 31, January
13,
1983,
7
Ill.
keg.
2518, March
4,
1983.
Illinois received Phase
I
interim authorization on
May
17,
1982
(47 Fed.
keg. 21043).
The UIC regulations were adopted as follows:
R8l-32
47 PCB 93, May 13,
1982;
October
15,
1982,
6 Ill.
Reg.
12479.
The
UIC regulations were amended
in
R82-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
Ill.
keg.
13274, August
8,
1986.
R86-27
Dismissed April
16,
1987
(No USEPA amendments through
12/31/86).
86—506
-3-
R87-29
January
21,
1987;
12
Ill.
keg.
2450,
January 29,
1988;
(1/1/87
through 6/30/87)
R88-2
Next Docket
(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:
R82-19
53 PCB
131, July 26,
1983,
7
Ill.
keg.
13999, October 28,
1983.
R83-24
55 PCB 31, December
15,
1983,
8 Ill, keg. 200, January
6,
1984.
On September
6,
1984,
the Third District Appellate Court upheld
the
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.
keg.
11964, effective July 24,
1985.
(through 4/24/84)
R85-22
67
PCB 175, 479, December 20,
1985
and January
9,
1986;
10
Ill.
keg. 968, effective January 2,
1986.
(4/25/84
--
6/30/85)
R86-1
July 11,
1986;
10
Ill.
keg.
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.
keg.
6017,
April
3,
1987.
Correction April
16,
1987;
11
Ill.
keg. 8684, May
1,
1987.
(4/1/86
--
6/30/86)
R86-46
July
16,
1987;
August
14, 1987;
11
Ill.
keg.
13435.
(7/1/86
--
9/30/86)
R87-5
October
15,
1987;
11
Ill.
keg.
19280, November 30, 1987.
(10/1/86
--
12/31/86)
R87-26
December
3,
1987;
12
Ill.
keg. 2450, January
29,
1988.
(1/1/87
——
6/30/87)
R87-32
Correction
to
k86-1; September 4,
1987;
11
Ill,
keg. 16698,
October
16,
1987.
R87-39
Opened December
3,
1987.
(7/1/87
—-
12/31/87)
86—507
-4-
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:
k84-34
61
PCB 241, November
21,
1984;
8
Ill.
keg. 24562, effective
December
11,
1984.
This was effectively repealed by k85-22, 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.
keg. 8112, effective May
2,
1986.
The
Board has procedures
to
be followed
in cases
before
it
involving
the
kCkA regulations:
R84-lO
62
PCB 87,
349, December
20,
1984 and January
10,
1985;
9 Ill.
keg.
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
k85-22
and amended
in k86-46,
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:
k8l-25
60
PC8 381, October 25,
1984;
8
Ill.
Reg.
24124, December 4,
1984;
R83-28
February 26,
1986;
10
Ill.
keg.
4875,
effective March
7,
1986.
R86—9
Emergency regulations adopted October 23, 1986;
10
Ill. keg.
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 proposed 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
Restriction
of “California List” wastes
July
9
List of constituents for groundwater monitoring
July 10
Technical
correction
to
chemical
listings
August
3
Readoption of change
to
spent pickle
liquor listing
(again)
September 9
Technical correction
to
permit application rules
86—508
-5-
September
15
Extension of date for submission of Part
A
applications
by certain cement kilns
September 23
Exception reporting by small
quantity generators
October 27
Incorporation by reference of “Test
Methods”
November
18
Corporate guarantees
for liability coverage
December
1
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 k86-46.
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.
The
Board solicits
comment
as
to whether
the rules
need to
include these dates.
In addition,
the Board will address the August
6, 1986 revisions to
the
chemical
listings, which the Board passed
over
in
R86-46 pending correction
by
USE PA.
DETAILED DISCUSSION
Section
702.181
This Section
is drawn from 40 CFR 270.4, which was amended
at
52 Fed.
keg.
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
RCRA 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 proposed to update
the reference to the USEPA rules,
and
to make
other technical corrections
to this rule.
Section 702.184
This Section
is drawn
from 40 CFR 270.41, which was amended
at
52 Fed.
keg.
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.
86—509
-6-
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.
Does this mean that USEPA positively
cannot modify
a UIC
permit
to reflect statutory changes?
Since this
seems
unlikely, the
Board has proposed these
as
common UIC/RCRA changes.
Since the
language
is
too intertwined,
the alternative
is
to
repeal Section 702.184,
and
adopt
separate kCkA and
UIC provisions
in
Parts 703
and 704.
The
Board
solicits comment
on this.
Section
702.187
This Section
is drawn from 40
CFR 270.42, which was amended
at
52 Fed.
keg.
25760,
July
8,
1987.
Sections 7O2.187(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.
40 CFR 270.42(p)(3)
includes
a reference to “termination”
of
a
permit
under Section 270.43.
In Section 702.187(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 contains waste disposal
prohibitions contained
in the
federal
statute,
but not
(yet)
reflected
in
the regulations.
This could
be
construed as
an
incorporation by reference of a federal
standard, which would
raise the spector of the Administrative Procedure Act incorporation by
reference requirements and procedures.
To
comply with these,
it
is much
easier
to add
a
single Section referencing the
federal
statute, and
to
reference that Section
at
all other points.
The Board
solicits comment
as
to
this approach, which
is
reflected
in Section 728.139, discussed below.
Section
703.121
This Section
is
drawn from 40 CFR 270.1,
which was amended
at
52 Fed.
Reg.
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 January
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).
Section 703.141
This Section
is drawn
from 40 CFR 270.60, which was amended at
52 Fed.
keg.
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
R82-19.
Illinois will
not
86—510
—7—
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 APA incorporations by
reference problems.
In order
to
simplify compliance, 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
surplussage,
and
has been deleted.
Section 703.155
This Section
is drawn from 40 CFR 270.72, which was amended
at
52
Fed.
keg.
25760,
July 8, 1987.
This Section specifies what modifications the
operator of an
interim status facility can make without filing
a Part
B 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
k86-9.
At 51
Fed.
Reg. 25422,
July
14,
1986,
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
k86—46.
The July
8,
1987 amendment appears
to repeal
this sentence.
The Board
suggests this may
be
an error by USEPA, and
has proposed
to
leave the sentence
in pending clarification.
Section 703.159
This new Section
is drawn from 40 CFR 270.1(c) (5), which was amended
at
52 Fed,
keg.
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.
USEPA has placed
it next
to the RCRA 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
Ill.
Adm. Code 705 permit
issuance procedures.
The USEPA rule provides
for
public notice
if the Regional Administrator “believes” that the Part
264
standards are met.
The
Board has proposed
to replace this subjective,
personal
standard 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.
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
proposed to adopt this requirement, since
Part 807
does not include removal
or
decontamination standards.
Section 703.160
86—511
-8-
This new Section
is drawn from 40 CFR 270.1(c)(6), which was amended
at
52 Fed,
keg. 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 this to “seeks
an equivalency determination.”
This
is may be
a typographical error
by USEPA.
The Board has proposed
to add Section 703.160(d),
referencing the generic
appeal provisions
of Section
702.107.
The alternative would
be
to provide
that
an equivalency determination
can
be appealed only with the
Part
B
application which
is required
if
the determination
is negative.
The
Board
solicits comment
on
this.
Section 703.185
This Section
is drawn from 40 CFk 270.14(c), which
was amended
at
52 Fed.
keg.
25942,
July 9, 1987,
and corrected at
52 Fed,
keg.
33936,
September 9,
1987.
The Section was amended again
at
52 Fed,
keg. 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,
keg.
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 CFR 270.32(b)(2)
and 270.50(d).
The
Board has proposed to reference 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.
The Board
solicits comment
as
to whether this
is what USEPA intended.
Section
720.111
This Section
is drawn
from 40 CFR 260.11, which was amended
at
52 Fed.
keg.
41295, October
27,
1987.
This
is
a technical
correction
to add 40 CFR
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 a specific identification of incorporated
items.
Therefore, the
Board always
has to back-reference to Section 720.111 when
it uses any
incorporated material.
Since the attempted forward—reference serves
no
purpose, the Board
has proposed
to delete
it.
86—512
-9-
Tue
Board has added
a reference
to section 3004 of the Resource
Conservation and Recovery Act, which
is
used
in Section 728.139.
The Board
has added
a number
of references
to the Code of Federal
Regulations
as paragraph
(b).
40
CFR 220 ~nd 264 are used
in
Section
703.141.
40 CFR
761
is
USEPA’s
PCB burning rules, which
are referenced
in
Part
268, discussed below.
Note that
the CFR references placed
in Section 720.111 are “odd”
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.
Section 721.132
Not amended
This Section
is drawn from 40 CFR 261.32, which was amended
at
52 Fed.
keg.
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.
keg. 26012, July
10,
1987.
This Section was also amended
at
51 Fed.
keg.
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
k86-46 at USEPA’s
suggestion.
USEPA has
now indicated
a correction will
be forthcoming,
and
that
the
Board
can
proceed.
(PC
1).
Appendix
H
The
listing
of hazardous constituents was also revised
in
the August
6,
1986 Federal
Register.
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,
keg. 35893,
September 23,
1987.
86—513
-10-
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 appear to require the
generator to report exceptions
to
IEPA even
if the waste was shipped
out of
State.
The Board solicits comment
as
to whether this meets USEPA’s
requirements.
Section 722.144
The corresponding federal
Section was amended
at
52 Fed.
keg. 35893,
September 23,
1987.
The amendment adds exception reports
to
the
list of regulations with
which generators of 100 to 1000 kg/month have
to comply.
The
Board has followed USEPA’s wording
in
this amendment, which reads:
“A generator
...
is
sub,:ect 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
solicits comment
on
this.
Section 722.170
The corresponding federal
Section was amended
at
52 Fed.
keg. 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,
keg.
28682, August
8,
1986.
The
Board renumbered Section
722.151
to 722.170
in
k86-46.
Section
262.51 now
deals with exports
of hazardous waste.
Section 724.113
The corresponding federal
Section was amended
at
52 Fed,
keg.
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
86—514
—11—
The corresponding federal Section was amended
at
52 Fed,
keg.
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, keg. 25942,
July
9,
1987.
This Section
has also been amended
to reference Appendix
I.
Section 724.200
The corresponding federal
Section was amended
at
52 Fed,
keg. 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.
There
is
a question
as
to whether the resulting list of four really
is
what USEPA intended,
An alternative rendering would create two lists of two,
retaining the introduction
to the
old
list.
The Board
solicits comment on
this.
The federal
Section provides that “the 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,
keg. 45787,
December
1,
1987.
Similar corrective action beyond the facility boundary
is
required for
solid waste management units present
at hazardous waste
facilities.
Section 724.247
The corresponding federal Section was amended
at
52 Fed, keg.
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,
keg. 25354,
July
11,
1986.
The Board
addressed these
in R86-46.
86—515
-12-
As was discussed
in k86-46, 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 gurantee
is
governed by the
law of the state, of incorporation, the place
of execution of
the gurantee 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
RCRA rules govern,
or the
derivative rules
in
the
states involved.
In addition, there 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
k86-46,
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 certifiea.
The
Board construes this as
a ratification of its
action
in
k86-46.
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 will request comment from the
Corporation Division
as
to whether
it would allow foreign corporations to
register under these circumstances.
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
jurisdiction?
86—516
-13-
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.
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 proposed to require
all corporations except Illinois corporations
to
maintain
a registered agent
in
Illinois as
a condition precedent to using the
corporate guarantee.
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
The corresponding federal Section was amended
at
52 Fed,
keg.
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
RCRA interim
status requirements.
Section 725.113
The corresponding federal Section was amended
at
52 Fed,
keg.
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.
86—517
-14-
Section 728.101
Part 728
is drawn
from 40 CFR 268, which was amended
at
52 Fed,
keg.
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 k83-28.
Section 728.101(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”
(“PCB5”).
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.
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
86—518
-15-
under Part
729.
An
example might
be
a lined aeration lagoon
in which
a
volatile chlorinated 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.
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:
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 RCRA 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.
The Board solicits
comment
on which interpretation is correct.
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.
86—519
-16-
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 R83-
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 proposed to make 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.
The Board
solicits comment on
this format.
Section
728.140 and 728.142
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 proposed 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
B, which ships
a
residual
to a land disposal
facility
in State
C.
Who has authority
to decide whether
the residual
can be
land disposed,
USEPA,
or States
A,
B or C?
For purposes of soliciting comment,
the Board proposes that
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
86—520
—17—
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.
This appears
to
be the result
is
each State adopted
the USEPA rules,
substituting its agency
for “Regional Administrator.”
If the above example
is
wrong, the
Board
should adopt
specific rules
to
cover multistate situations.
Even
if it’s correct,
the State rules perhaps
need to
be made more clear
on
this.
The
Board solicits comment on
this.
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 PCB5,
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.
This
list includes
several undefined abbreviations.
Most of these are
obvious.
This Proposed Opinion supports the
Board’s Proposed Order
for
public
comment of this same day.
The Board will allow
45 days
for public comment
following publication
in
the Illinois Register.
Because of its
length,
this
Opinion will
not be published
in the Environmental Register,
or appear
in
the
Board’s Opinion volumes.
IT
IS
SO ORDERED
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby
certify that
the above Opinion was adopted
on the
21-c~
day of ~
1988,
by
a vote of
~7—~’
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
86—521
