ILLINO:S POLLUTION CONTROL BOARD
December
3,
1987
IN THE MATTER OF:
)
RCRA UPDATE,
USEPA REGULATIONS
)
R87-26
(1—1—87 THROUGH 6—30—87)
)
FINAL ORDER.
ADOPTED RULES.
OPINION OF THE BOARD
(by
3. 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 August 20,
1987
the Board opened
this docket for the
purpose of updating the RCRA rules
to agree with recent USEPA
amendments.
The Board proposed amendments on September
4,
1987.
The proposal appeared on October 16, 1987, at 11 Ill.
Reg.
16320.
As
is detailed below, Board has modified the rules in
response to
the public comment received.
Section 22.4 of •the Act governs adoption of regulations
establishing the RCRA program
in Illinois.
Section 22.4(a)
provides for quick adoption of regulations which are “identical
in substance”
to federal regulations;
Section 22.4(a)
provides
that Title VII of the Act and Section 5
of the Administrative
Procedure Act shall not apply.
Because this rulemaking
is not
subject to Section
5 of the Administrative Procedure Act,
it
is
not subject to first notice or
to second notice review by the
Joint Committee on Administrative Rules
(JCAR).
The federal
RCRA
regulations are found at
40 CFR 260 through
270, and 280.
This
rulemaking updates Illinois’ RCRA rules to correspond with
federal amendments during the period January
1 through June 31,
1987.
The Federal Registers utilized are
as follows:
52 Fed.
Reg. 8072
March 16,
1987
52 Fed.
Reg. 8703
March 19,
1987
52 Fed.
Reg.
11819
April 13,
1987
52 Fed.
Reg.
21306
June 5,
1987
52 Fed.
Reg.
23447
June
22,
1987
In R87—5,
the Board addressed the corrections which appeared
at
52 Fed. Reg.
21010, June
4,
1987.
Also,
in R86—46 the Board
passed over revisions to
the chemical listings which appeared at
The Board appreciates the assistance of Morton Dorothy in
drafting the proposal and this Opinion.
84—491
—2—
51
Fed.
Reg.
28298, August
6,
1986.
Further corrections will
appear
in a later Docket when USEPA corrects the revisions.
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.
The Board also notes that,
by order this ame day,
it
is
opening Docket No. R87—39
to initiate
a RCRA update
to cover
USEPA regulations adopted on 7/1/87 through 12/31/87.
PUBLIC COMMENT
The proposal appeared on October
16,
1987, at 11
Ill.
Reg.
16320.
The Board
received the following public comment:
PC
1
United States Environmental Protection Agency,
(USEPA),
by William
H. Miner and Gary Westefer,
October
29,
1987
PC
2
Illinois Environmental Protection Agency,
(Agency
or IEPA), by Phillip
R. Van Ness, November
4,
1987
These comments correct minor typographical errors only.
The
also Board received codification comments from the Administrative
Code Unit.
The Board
received
a “State Mandates Act Questionaire” from
the Joint Committee on Administrative Rules
(JCAR).
The Board
declined to respond since
the Questionaire
is based on Section
5
of the Administrative Procedure Act
(APA), and Section 22.4(a)
of
the Act provides that Section
5 of the APA shall not apply to
this rulemaking.
The Board further noted that this rulemaking
imposes mandates on units of local government only to the extent
they may be involved
in the generation,
transportation,
treatment, storage and disposal of hazardous waste, which are not
normal governmental activities.
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
84—492
—3—
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:
R81—22
45 PCB
317, February
4,
1982,
6
Ill.
Reg.
4828,
April
23,
1982.
R82—18
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 Ill.
Reg.
12479.
The UIC regulations were amended
in R82—18, 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. Reg.
13274,
August
8,
1986.
R86—27
Dismissed April 16, 1987
(No USEPA amendments
through 12/31/86).
R87—29
Proposed September 17,
1987
(1/1/87 through
6/30/87)
The Phase II RCRA regulations included adoption of Parts 703
and 724, which established the permit program and final TSD
84—493
—4—
standards.
The Phase
II regulations were adopted and amended as
follows:
R82—19
53 PCB 131, July 26,
1983,
7 Ill. Reg.
13999,
October
28,
1983.
R83—24
55 PCB
31, December
15,
1983,
8 Ill. Reg.
200,
January
6,
1984.
On September 6,
1984, the Third District Appellate Court
upheld the Board’s actions
in adopting R82—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—l9
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;
Il
Ill.
Reg. 8684,
May 1,
1987.
(4/1/86
——
6/30/86)
R86—46
July 16,
1987; August 14,
1987;
11
Ill.
Reg.
13435.
(7/1/86
——
9/30/86)
R87—5
October 15,
1987;
11
Ill. Reg.
19280,
November 30,
1987.
(10/1/86
——
12/31/86)
R87—26
This Docket
(1/1/87 through 6/30/87)
R87—32
Correction to R86—1;
September
4,
1987;
11 Ill.
Reg.
16698, October 16,
1987.
R87—39
Next Docket
(7/1/87 through 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:
84—494
—5—
R84—34
61 PCB 247, November
21,
1984;
8
Ill. Reg.
24562,
effective December 11,
1984.
This was effectively repealed by R85—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
RCRA
regulations:
R84—10
62 PCB 87,
349,
December 20,
1984 and January 10,
1985;
9 Ill. Reg.
1383, effective January 16,
1985.
The Board also adopted
in Part 106 special procedures to be
followed in certain determinations.
Part 106 was adopted
in 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 halogeriated compounds and hazardous wastes
generally:
R8l—25
60 PCB 381, October
25,
1984;
8
Ill. Reg.
24124,
December
4,
1984;
R83—28
February
26,
1986;
10 Ill.
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.
DETAILED DISCUSSION
The USEPA amendments involved
in this update are summarized
as follows:
52 FR
1987
8072
March 16
Update Test Methods reference
8703
March 19
Closure of impoundments
11819
April
13
Corrections to used oil rules
21306
June
5
Corrections to “solid waste”
23447
June 22
Corrective action programs
The June 22 rules allow a RCRA permit applicant to ask USEPA
to put into the permit
a schedule leading
to
a corrective action
84—495
—6—
program,
instead
of the program itself.
The March 19 rules make
the closure standards for interim status impoundments more like
the Part 724 standards.
These important changes are accomplished
in a few pages.
The rest is mainly housekeeping.
Section 702.104
This Section
is drawn from 40 CFR 270.6, which was amended
at 52 Fed.
Reg.
8073.
The amendments
update the reference to
“Test Methods for Evaluating Solid Waste.”
The Board will
utilize the
format which was recently adopted
in R86—46
in
Section 720.110.
Section 703.185
This Section is drawn from 40 CFR 270.14(c), which was
amended
at
52 Fed.
Reg.
23450.
This Section specifies a portion
of
the RCRA permit application, the groundwater protection
information.
This correlates with Part 724, Subpart F, which
governs releases from solid waste management units.
An operator
is required
to establish a corrective action program if
contaminants are detected
in groundwater.
The corrective action
program is
a type of permit condition, which
is established
pursuant to this portion of the application.
To complete the
application may require substantial
time and effort
in the design
stage.
The amendments allow the operator, with prior approval of
the Agency,
to file a RCRA permit application with a schedule for
submission of a corrective action plan instead
of the plan
itself.
This would allow the Agency to issue the permit
conditioned on
the schedule,
instead of waiting for
implementation the plan before issuing the permit.
Section 720.111
This Section
is drawn from 40 CFR 260.11, which was amended
at
52 Fed. Reg. 8073 to update the reference to “Test Methods”
discussed above.
As was discussed
in the R86—46 Opinion, the
format
and content differs from that of the USEPA rule
in order
to comply with APA requirements.
Section 721.103
This Section
is drawn from 40 CFR 261.3, which was amended
at 52 Fed.
Reg.
11821.
A cross reference has been corrected in
Section 72l.l03(c)(2)(B)(ii).
The Board has also changed
a reference to the Clean Water
Act
in Section 72l.103(a)(2)(D).
This functions
to exclude
regulated wastewater discharges from the definition of hazardous
waste.
The Board has deleted the references to the federal Act
and replaced them with references to the derivative Illinois
programs, the NPDES and pretreatment programs
in 35 Ill. Mm.
84—496
—7—
Code 309 and 310.
Part 310 was adopted
in R86—44 on December
3,
1987.
The APA has been amended several times concerning
the form
of incorporations by reference.
The APA imposes severe
restrictions on the types and form of incorporations.
The Board
is concerned that this type of reference could be construed as an
incorporation by reference, which would raise
all sorts of
problems.
Since there
is
a clear equivalent Illinois reference,
the Board will utilize
it instead.
This avoids the APA problems,
since references to Illinois regulations and statutes are not
incorporations by reference.
Section 721.106
This Section
is drawn from 40 CFR 261.6, which was amended
at 52
Fed.
Reg.
11821
to correct a reference to hazardous waste
number K067 found
in the Board
rule at Section
721.106(a) (3) (G).
The Board has added introductory lines
to those subsections
in which
the USEPA rule moves to next level of subdivision
without
text.
This
is now prohibited
by the Secretary of State’s
rules.
This Section was subject to amendment in the R87—5.
Some of
the changes shown
in the proposal were actually made
in that
Docket.
The striking and underlining have been revised
to
reflect the base text as adopted
in R87—5.
Section 721.133
This Section is drawn from 40 CFR 261.33,
which was amended
at 52 Fed.
Reg.
21306.
The amendment changes the introductory
material which defines what is meant by the listings of discarded
commercial chemical products, etc.
The listings themselves are
unchanged.
Note that in R86—46
the Board passed over amendments
to this Section which USEPA adopted at
51
Fed. Reg.
28298, August
6,
1986.
The Board will wait until
USEPA corrects this action
to
adopt it at the State level.
For this reason,
the text of this
Section will differ
in form from that which will appear
in the
1987 edition of the CFR.
Section 725.328
This Section is drawn from
40 CFR 265.228, which was amended
at 52 Fed. Reg.
8706.
The amendment changes the closure and
post—closure care standards for interim status surface
impoundments.
The rule becomes basically the same as the Part
724
rule for permitted facilities.
The operator either has to
remove or decontaminate all wastes,
residues,
liner materials and
subsoils,
or close the unit
as
a landfill
and provide post—
closure
care.
84—497
—8—
Section 726.120
et seq.
This and the subsequent Sections are drawn from 40 CFR 266,
which was amended at 52 Fed. Reg. 21306.
These amendments are
technical corrections to the rules which the Board adopted
in
R85—22 and R86—l.
The corrections will not be discussed
in
detail.
In addition,
the Board has corrected some problems which
arose
in its adoption of the rules.
These will not be discussed
in detail either.
Section 726.120 has been amended
to delete part of the
material on mixing wastes before recycling from Section
726.l20(a)(2) and
(3).
Section 726.l3l(a)(l), and several subsequent Sections, have
been amended
to remove specific references to the notification
requirement of Section 3010
of the RCRA Act.
Since these USEPA
amendments could be construed as incorporations by reference,
raising the problems discussed above,
the notification is now
required under
the rules without any need for specific reference
to
the federal Act.
This Opinion supports the Board’s Order of this same day.
The Board will delay filing the rules until December
17,
1987,
in
order
to allow time for final
review and motions for
reconsideration by the agencies involved in the authorization
process.
I, Dorothy M.
Gunn, Clerk
of the
Illinois Pollution Control
Board
hereby certi y that the above Opinion was adopted on
the
_____
day of
______________,
1987, by a vote of
~7O
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
84—498