ILLINOIS POLLUTION CONTROL BOARD
February
5,
1987
IN THE MATTER OF:
)
RCRA UPDATE,
USEPA REGULATIONS
)
R86—28
(4—1—86 THROUGH 6—30—86)
)
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 July 11,
1986 the
Board opened this docket for
the
purpose of updating the RCRA rules
to agree with recent USEPA
amendments
Section 22.4(a)
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.
Neither Title VII of the
Act nor Section
5
of the Administrative Procedure Act applies to
rules adopted under Section 22.4(a).
Because this rulemaking
is
not subject
to Section
5
of the Administrative Procedure Act,
it
is not subject
to 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
April
1 through June
30,
1986.
The Federal Registers utilized
are as follows:
November
8,
1985
50 Fed.
Reg.
46612
April 21,
1986
51 Fed.
Reg. 13497
May 2,
1986
51 Fed.
Reg.
16443
May
28, 1986
51
Fed.
Reg.
19177
May 28,
1986
51
Fed.
Reg... 19322
The November
8,
1985, Federal Register amended the
Underground Storage Tank program.
This was inadvertently omitted
from R86—1.
The Board
appreciates the assistance of Morton Dorothy,
of the
Board’s Scientific/Technical
Staff,
in the preparation of the
drafts
in
this
proceeding,
and of Kathleen Crowley, adminstrative
assistant,
in the coordination and oversight
process.
75-306
—2—
There
are two notable USEPA actions during this period which
have not been included
in this action.
51
Fed.
Reg.
12148, April
9,
1986,
includes delistings.
As provided
in Section 720.122,
the Board will not adopt these unless
and until
a proposal is
filed with
a showing that the delistings need
to be adopted as
part of the Illinois program.
51
Fed. Reg.
19300, May 28, 1986,
is USEPA’s schedule for
adopting land disposal restrictions.
The
Board will adopt USEPA’s restrictions as they appear, but sees no
need
to adopt
the
schedule applicable
to USEPA.
PUBLIC COMMENT
The proposal was published
in two issues of the Illinois
Register,
at
10
Ill.
Reg..
18578 and 18974,
on October
31 and
November
7,
1986.
The
comment periods have expired.
The Board
received the following public comments:
PC
#1
Illinois Environmental Protection Agency (Agency),
December
1, 1986
PC
#2
United States Environmental Protection Agency
(USEPA),
December
10,
1986
PC
#3
Chemical Waste Management,
Inc.,
December
15,
1986
PC
#4
Waste Management of Illinois,
Inc.,
December
15,
1986
PC
#5
American Insurance Association, January 20,
1987
PC
#6
Illinois Environmental Protection Agency (Agency),
January 20,
1987
PC
#7
USEPA, with attached letter
from Agency, January
29,
1987
The Agency comment, PC ~t1,was actually intended
as
a motion
to reconsider R86—l9, but was not received
in time
to delay
filing
of the rules.
The Board docketed
the motion
as a public
comment
in this Docket.
The subject matter will be addressed
below under
the heading “Section 722.134,”
PC
#7
concerns the
same issues.
The Board also received codification comments from the
Administrative Code Unit on December
4, 1986.
HISTORY OF RCRA and UIC ADOPTION
The Illinois RCRA and UIC
(Underground Injection Control)
rules,
together with more stringent state
rules particularly
applicable
to hazardous waste,
include the following:
702
RCRA
and UIC Permit Programs
703
RCRA
Permit Program
75-307
—3—
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
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
rules has proceeded
in several stages.
The
Phase
I
RCRA
rules
were
adopted
and
amended
as
follows:
R8l—22
45
PCB
317,
February
4,
1982,
6
Ill.
Reg.
4828,
April
23,
1982.
R82—18
51
PCB
31,
January
13,
1983,
7
Ill.
Reg.
2518,
March
4,
1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47 Fed.
Reg..
21043).
The UIC rules were adopted
as follows:
P81—32
47 PCB
93, May 13,
1982;
October
15, 1982,
6
Ill.
Peg.
12479.
The UIC rules were amended
in R82—l8, which
is referenced
above.
The UIC rules were also amended
in R83—39:
P83—39
55 PCB 319,
December
15,
1983;
7
Ill. Reg.
17338,
December 20,
1983.
Illinois received tJIC authorization February 1,
1984.
The
Board
has recently updated the
IJIC rules:
R85—23
June
19,
1986;
10
Ill.
Reg.
13274, August
8,
1986.
The Phase
II RCRA rules included adoption of Parts
703 and
724, which established
the permit program and final TSD
standards.
The Phase II rules were adopted
and amended
as
follows:
R82—l9
53 PCB 131, July 26,
1983,
7 Ill.
Peg.
13999,
October
28,
1983.
75-308
—4—
R83—24
55 PCB
31, December
15,
1983,
8 Ill. Peg.
200,
January
6,
1984.
On September
6,
1984,
the Third District Appellate Court
upheld
the Board’s actions
in adopting P82—19 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 rules to correspond with USEPA
amendments
in several dockets:
P84—9
64 PCB 427,
June 13,
1985;
9 Ill. Reg.
11964,
effective July
24,
1985.
R85—22
December
20,
1985 and January
9,
1986;
10
Ill..
Peg.
968, effective January
2, 1986.
P86—1
July
11,
1986;
10
Ill.
Peg.
13998, August
22,
1986.
P86—19
October
23,
1986;
10
Ill.
Peg.
20630,
December
12,
1986.
R86—28
This Docket.
R86-46
Opened October
9,
1986.
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:
P84—34
61 PCB 247,
November
21,
1984;
8 111.
Peg.
24562,
effective December
11,
1984.
This was effectively repealed
by P85—22,
which included
adoption of
USEPA’s dioxin listings.
The Board has procedures
to be
followed
in cases before
it
involving
the RCRA rules:
P84—10
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, which is 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:
75-309
—5—
R8l—25
60 PCB
381, October
25,
1984;
8 Ill. Reg.
24124,
December
4,
1984;
P83—28
February 26,
1986;
10 Ill.
Peg. 4875, effective
March
7,
1986.
P86—9
Emergency rules adopted October
23,
1986;
10 Ill.
Peg.
19787, effective November
5,
1986.
The Board’s action
in adopting emergency rules
in P86—9 was
reversed (CBE and IEPA v.
IPCB et
al..,
First District, January
26,
1987).
DETAILED DISCUSSION
The USEPA amendments involved
in this update are summarized
as follows:
50 Fed. Peg.
46612
Notification requirements for UST
51 Fed.
Peg.
13497
Correction
to UST rules
51 Fed.
Peg.
16443
Amendments to closure and financial
assurance requirements
(May
2,
1986)
51
Fed.
Peg.
19177
Correction
to paint filter
test
51
Fed.
Peg.
19322
Changes
to listing of spent pickle liquor
Almost
all of the changes are to the closure and financial
assurance rules of Parts
724 and 725,
the May 2,
1986 amendments.
Chemical Waste Management,
Inc.,
and Waste Management of
Illinois,
Inc.,~, are
involved
in an appeal of USEPA’s May
2
amendments,
Chemical Manufacturer’s Association v. USEPA,
U.S.
Court of Appeals
for
the District of Columbia.
(PC
#
3 and 4).
Waste Management
of Illinois asks that the Board grant
it
a stay
of the amendments pending resolution of the appeal.
Chemical
waste Management asks that the Board quickly promulgate revisions
following
any
federal
court
invalidation
of
corresponding
federal
regulations..
It
is not clear from
the comments whether the
federal court
has granted
a stay of the USEPA rules.
Section 22.4(a)
requires the Board
to adopt identical
in
substance regulations.
The Board would violate this provision
if,
in anticipation of possible federal court action of this
nature,
it failed
to adopt currently valid USEPA amendments.
The
remainder of
this discussion assumes
a stay has been granted,
although this has not been demonstrated.
In order
to render
its
regulations
effective,
the
Board
must
publish
them in the Illinois Register
and
file them with the
Secretary of State pursuant
to the Administrative Procedure Act
(APA).
Although the Board could
stay its Order,
the Board
is not
aware of any mechanism under
the APA whereby a rule can be
“stayed” with respect
to certain persons once
it has been
filed.
If the Board’s “stay” meant that the rules were not
to be
75-310
—6—
filed, they would not be effective with respect
to anyone,
violating
the mandate of Section 22.4(a).
Section
38(b) of the Act provides for automatic stays of new
rules
if
a person files a petition for variance within
20 days
after
a new rule becomes effective.
However, this Section also
provides that the operation of any rule which implements
in whole
or
in part the RCRA program “shall not be stayed.”
Waste Management cites A.
E.
Staley v.
IEPA and IPCB,
290 NE
2d 892,
8
Ill. App.
3d 1018,
Fourth District, December
13,
1972,
which held that the
Board was required
to grant Staley a
stay of
the original adoption of the water
pollution regulations.
This
was decided before the new APA, at
a time when the distinction
between
the Board’s action
in adopting
a rule and
filing was not
clear.
Indeed, the Illinois Register was not yet
in existence.
Neither
the adoption nor the content of the rules involved were
mandated by statute.
Section 38(b)
of the Act did not include
specific prohibitions on stays of the RCRA program, which did
not
even exist.
For these reasons the Board does not regard the
Staley decision as
a valid precedent
for
this action.
It might be feasible
to write the terms of any federal court
stay into the
rules
the Board has adopted.
However, the comments
are not sufficiently specific
to form the basis of such
a rule.
The conunenters are welcome to
file
a specific regulatory proposal
for
such
a rule
in a new Docket.
The Board could
also grant
a variance pursuant to Title
IX
of the Act, assuming specific petitioners could demonstrate
arbitrary or unreasonable hardship and consistency with federal
law.
The Board
is prepared
to consider costs associated with
compliance with stayed federal
rules as hardship, and to accept
consistency with the terms of any stay granted by federal courts
as consistency with federal
law.
In the event there
is an adverse federal court action,
USEPA
will presumably adopt modifications
to its rules, which
the Board
will then adopt as quickly as possible.
The Board
notes,
however, that
it is presently moving
as
fast as possible
to adopt
USEPA amendments within
the procedural constraints
imposed upon
it.
Interested persons may propose specific amendments
if they
need faster action.
The Agency has suggested
that the Board need not spell
out
“RCPA”
when
the
Resource
Conservation
and
Recovery
Act
is
meant
(PC
#6).
The
Agency
is
correct
that
the
acronym
is
defined
in
Part 720.
However,
the term can be confused with the
RCRA
permit
required under Section 21(f)
of
the Act.
The Board
has therefore
spelled the full name
of the RCRA Act out whenever encountered
in
these amendments.
The specific instances noted
by the Agency
occurred within administrative compliance order references,
which,
as
is discussed below, have been stricken altogether.
75-311
—7—
Section 702.187
Section 702.187
is drawn
in part from 40 CFR 270.42, which
was amended
at
51 Fed.
Peg.
16443.
When a
facility is
sold,
the
old operator has to continue
to provide financial assurance until
the new operator demonstrates compliance.
Section 703.155
This Section
is drawn
from 40 CFR 270.72.
The rules for
financial assurance upon sale of an
interim status facility are
basically the same as
for
a permitted facility
Section 703.183
This Section
is drawn from 40 CFR 270.14(b), which was also
amended at
51
Fed.
Peg.
16443.
Section 703.183(n),
(0)
and (p),
have been amended
to specify the financial assurance
documentation required
in the Part
B permit application.
For new
facilities, financial assurance
is keyed
to
initial
receipt of
waste,
rather
than the permit application.
Section 720.110
The definitions table has been amended
to add or
amend
the
definitions
of “active life”,
“final closure”, “hazardous waste
management unit”
and
“partial closure”.
The definition of “small
quantity generator,” which appeared
in
the proposal, was adopted
in
P86—19.
Section 721.132
The definition of K062,
spent pickle liquor, was modified at
51
Fed.
Peg.
19322.
Note that K117,
K118 and K136, which
appeared
in the proposal, were adopted
in P86—19.
Section 722.134
(not amended)
In P86—19 the Board, acting
in response to
a public
comment,
modified the provisions concerning
extension for
30 days of time
periods during which generators can hold hazardous wastes without
becoming subject
to the storage permit requirement.
As amended,
a provisional variance or variance is
required
to extend
the
storage periods.
As indicated
in
the P86—19 Opinion, the Board withheld
final
filing until after November
19, 1986,
to allow time
for
final
review by the agencies involved with
the authorization process.
The Board mailed the rules
to the Secretary of State on November
25,
and they were received
for
filing
on December
2,
1986.
The
Board received a final comment from the Agency on December
1,
1986,
too late for consideration
in that Docket.
The Board
therefore designated the comment as PC
#1
in this Docket.
75-312
—8—
The Agency estimates that every year
it grants about 183
extensions of the storage period.
The Agency believes
it would
cause unnecessary hardship for
it and the generators
if these
were handled
as variances or provisional variances,
or
if the
generators were counted
as out of compliance
and asked
to file
permit applications pending decisions on variances.
The Board has already granted several provisional variances
recommended by the Agency pursuant
to this provision.
However,
the Board
refused to grant two provisional variances where
it
appeared that the Agency had granted a previous 30 day
extension.
The Board found
that it
lacked authority
to grant
extensions totaling more than 30 days,
based on an interpretation
of the USEPA rule
(40 CFR 262.34).
The Board stated that
it
would reconsider
if
it were demonstrated that USEPA construes its
rule as allowing such extensions.
Subsequently the Board
received copies of
a letter written
by the Agency
to USEPA on January
9, 1987,
and
a response from
USEPA dated January 26,
1987.
The Board has designated these PC
#7
in this Docket.
USEPA states that it concurs with the Board’s
interpretation
of
Section
722.134:
Additive
extensions
for
the
same
stored
hazardous
wastes
(i.e.,
the
same
storage
event)
are
not
acceptable
and
should
not be granted.
However,
a series of unforseen,
temporary
and uncontrollable circumstances that would result
in more
than one extension request
for the same facility is
acceptable under
the regulations
if, and only
if, they
resulted
from different storage events.
The Board
is not persuaded
that the concerns expressed by
the Agency’s operating staff outweigh the concerns, as expressed
in
P86—19,
that led
to the use of the provisional variance
mechanism.
The Board
notes that this mechanism has been used
in
areas
other
than RCRA where short term relief
is needed
quickly.
The Board also notes that,
if another mechanism is
later proposed,
it must be consistent both with
the Environmental
Protection Act and the Administrative Procedure Act.
Section 724.190
The Board amended this Section
in R86—l.
A typographical
error occurred
in the date specified
in Section 724.l90(a)(2).
This should have been “July 26,
1982,” rather
than “July 28,
1982.”
The Board
has corrected this in this Docket.
Section 724.210
The closure and financial assurance requirements were
extensively amended
at
51
Fed. Peg.
16443, May
2,
1986.
Most of
the remaining amendments discussed
in this Opinion are drawn from
this Federal Register.
75-313
—9—
The
amendments
to Section 724.210
are minor editorial
changes.
Section 724.211
This Section has been amended mainly to add
a reference
to
specific closure requirements
to the general
standard.
In
paragraph
(c)
the USEPA rule references the requirements of “this
Subpart”, but then cites Sections
in other Subparts.
The
reference has been corrected
to read “Part”.
Section 724.212
This Section has been amended to greatly increase the
specificity of the requirements concerning closure plans.
Among
other things, the operator
is required
to plan
for closure of
individual disposal units within the facility,
and
to notify
USEPA with the closure of each disposal unit.
Section
724.213
This Section has been amended
to
be more specific
as
to
modification
of
the
time
allowed
to
begin
or
to
complete
closure.
The
USEPA
rule
requires
closure
to
begin
within
90
days
and
to be completed within
180 days,
unless certain conditions
are met.
When the Board
adopted this Section
in
P83—19,
it
modified the language to make it clear that the Agency’s decision
was
to
be
in
the context of permit review,
and that the time
limits were presumptive
norms
to be applied
in the absence of the
required
showing~.
These changes are consistent with the present
amendments
and will
be retained.
Section 724,213
There
are many places in
the proposal
at which the Board
changed
“may”
to “shall”
so as
to make
it clear that the Agency
is
to act
as the rule directs
if the stated conditions are met.
If there
are additional factors which
the Agency should consider,
these should
be proposed
to
the Board
so
it can amend
the rule
accordingly.
(PC #2)
Section 724.214
This Section has been modified
to make the requirements
concerning removal
or decontamination more specific,
and
to
reference the generator requirements of Part 722.
Section 724.215
This Section has been modified
to make the requirements
concerning certification of closure more specific.
Certification
from
a professional
engineer
is required within
60 days after
completion of closure of land disposal units, even
if the rest of
of
the facility remains open.
75-314
—10—
Section
724.216
This Section has been added.
It requires the operator
to
submit
a
plat
to
the
Agency
and
to
local
authorities
prior
to
certification
of
closure.
The
USEPA
rule
requires
submission
“to
the
local
zoning
authority,
or
the
authority
with
jurisdiction
over
local land use.”
In Illinois there may be,
in practice, no
such authority excercised
in rural
areas.
When the Board
originally adopted
it,
the rule was modified
to require filing
with “any” local authority,
and
to require the plat
to be
recorded with land titles.
This is followed
in these amendments.
Section 724.217
This Section has been modified
to make the requirements
concerning
the post—closure care period more specific.
In P83—19
the Board specified
that rulemaking pursuant
to Part 102 would
be
required
to shorten or lengthen the 30—year period.
Specific
procedures
for such site—specific RCRA determinations were
adopted
in P84—10.
The amendments are consistent with these
procedures.
Section 724.218
This Section has been modified
to make more specific
the
requirements concerning
the post—closure care plan.
The plan
no
longer needs to be kept at the facility.
The operator must apply
for
a permit modification at least 60 days prior
to a planned
change which affects the post—closure care plan, and within 60
days after
an unexpected
event.
Post—closure care plans must be
submitted within 90 days after either
the Agency or
the operator
determines that a unit which does not have a contingent post—
closure care plan will have
to be closed
as
a landfill.
Section
724.219
This Section has been largely rewritten.
Some of the
material has been moved to new Section 724.116,
or
to amended
Section 724.220.
When
it adopted this Section
in R82—19, the
Board specified the County
Recorder and “any”
local zoning
authority,
for the reasons
stated above.
This has been followed
in the present amendments.
The operator
now has to
submit information on the location
of wastes on the facility each time
a disposal unit
is closed.
Procedures have been specified for removal
of notations on deeds
in the event hazardous wastes are subsequently removed
from a
disposal unit.
Section 724.220
The former material has been moved
to
Sections 724.216 and
724.219.
This Section now requires a certification from the
operator
and
a professional
engineer
that post—closure care has
75-315
—11—
been
completed
in
accordance
with
the
plan.
The
certification
is
required within
60 days after completion of post—closure care.
Section 724.241
A
definition
of
“plugging
and
abandonment
cost
estimate”
has
been
added.
This
is
the
cost
estimate
prepared
pursuant
to
Section
704.212
for
UIC
wells
injecting
hazardous
waste.
This
requirement
was
adopted
in
P85—23
on
July
11,
1986.
Section
724.242
The
requirements
for
closure
cost
estimates
have
been
made
more
specific.
Many
of
the
changes
are
similar
to
the
financial
assurance rules adopted by the Board
for non—hazardous waste
facilities
in
P84—22..
(Order
of
November
21,
1985;
66
PCB
463)
The cost estimate must be based
on third—party costs,
and
cannot include salvage value.
The operator can use actual costs
instead
of inflation factors in revising the cost estimate.
The
time
for
adjusting
the
cost
estimate
is
now
keyed
to
the
anniversary date
of the financial instruments, rather than the
date of the
first cost estimate.
Section 724.243
The requirements concerning financial assurance instruments
for
closure
have
been
modified.
The
amendments
generally
concern
application of financial assurance during partial closure,
finality of orders and inclusion of UIC plugging and abandonment
costs
in
financial
tests.
Most
of
the
RCRA
financial assurance mechanisms require the
operator
to
create
a
“standby
trust”
to
receive
the
proceeds
of
the mechanism.
In P84—22
the Board determined that such standby
trusts are expensive and unnecessary under
Illinois law.
However,
the Board has retained the standby trusts
in this
rulemaking,
which is pursuant to Section 22.4(a)
of the Act.
The amendments
to several provisions trigger application of
financial
assurance
when USEPA issues
a “final administrative
order”.
(For example, see Section 724.243(b)(4),
(c)(5) and
(d)(8).)
Since Agency has
no comparable power,
the existing
rules
trigger application of financial assurance when the Board
or
a court orders closure.
USEPA lacks authority to issue
administrative orders
in authorized States
(Northside Sanitary
Landfill,
Inc.
v.
Thomas,
No.
85—2119
(slip op., 7th Cir.,
October
23,
1986).
Such orders will
not trigger
the closure
requirements or application of proceeds of financial assurance
instruments
in Illinois.
Chemical Waste Management provided
the
Board with the citation
to the Northside Sanitary Landfill
case.
The Agency agrees that USEPA administrative orders are not
to be used in Illinois.
(PC
#3 and 6)
75-316
—12—
There are other provisions
in the proposal which include
similar language.
The Board
has reviewed these
and, where
necessary,
modified
them
to
avoid
any
interpretation
that
they
authorize administrative orders
in Illinois.
These Sections
include:
Sections 724.2l2(d)(3), 724.243(b)(4),
(c)(5),
(d)(8)
and (e)(8),
724.245(b)(4),
(c)(5),
(d)(9)
and (e)(8),
725.2l2(d)(3), 725.218(e)(2), 725.243(b)(4),
(c)(8) and (d)(8),
and 725.245(b)(4),
(c)(9)
and (d)(8).
The USEPA rules provide that USEPA can withhold payments
from
a trust
to the operator
if
it “has reason
to believe” that
the cost
of closure will
be significantly greater than the value
of the
trust.
The Board has changed
this to “determines”.
For
example, see Section 724..243(a)(l0).
The question on review of
such action would
be not whether
the Agency subjectively had
a
reason, but whether the cost indeed will
be greater than the
value of the trust.
Similarly,
in Section 724.243(1), the Agency
is to
release
the operator unless
it “determines” that closure
has not been
in accordance with the approved closure plan.
The USEPA rules allow operators to provide
a single
financial assurance package
for
all facilities nationwide.
These
provisions were deleted
on adoption of Section 724.243(g)
in R82—
19.
However,
the rules do not specifically say how the Agency is
to deal with multistate operators.
Chemical Waste Management has suggested that the Board allow
a
federal financial assurance demonstration
to satisfy state law
requirements.
(PC
*3)
The Board declines
to
so modify the rules
in the context of this rulemaking, which is pursuant to
Section
22.4(a)
of the Act, but invites proposals as to how to accomplish
this result.
The Board will point out some of the difficulties
with multi—state financial
assurance.
First,
it should be noted that a USEPA RCPA permit does not
allow operation
in
Illinois.
IEPA must issue
a RCRA permit
pursuant
to State authority,
following any necessary siting
approval under Section 39.2
of the Act.
(P83—24,
55 PCB 313,
December
15,
1983).
Second,
it appears that for
the Agency to accept federal
financial assurance as complying with State requirements,
the
financial assurance must
be
in
a form such that the Agency can
apply proceeds
to sites
in Illinois.
At
a minimum,
this should
involve
the
following:
1.
Assets pledged
to Illinois sites could not be diverted
to other
sites without the Agency’s approval.
2.
The operator
and financial institution should
submit to
Illinois Court jurisdiction.
75-317
—13--
3.
The
financial
assurance
documents
should
be
governed
by
Illinois
or
federal
law,
rather
than
the
law
of
the
state
where
the
documents
are
executed.
4.
An
Order
to
close
from
the
Board
or
an
Illinois
Court
should trigger
a default.
5.
In
the
event
of
a
default,
the
assets
should
be
payable
to
or
controlled
by
the
Agency.
Section
724.244
The
requirements
for
cost
estimates
for
post—closure
care
have
been
modified
in
a
manner
similar
to
the
closure
cost
estimates.
There
appear
to
be
two
errors
in
the
USEPA
text.
40
CFR
264.144(a)
references
Sections
264.228
“and”
264.258
where
“or”
is obviously intended.
Section 264.144(b)
references Section
264.145(b)
(1)
and
(2)
where
an internal reference
is intended.
Section 724.245
The
requirements
for
financial
assurance
instruments
for
post—closure
care
have
been
modified
in
a
manner
similar
to
Section 724.243.
Section 724.247
Paragraph
(c)
requires
the
operator
to
provide
technical
and
engineering
information
as
is
“deemed
necessary
by
the
Agency
to
determine”
a level
of insurance other
than the specified dollar
amounts.
The Board has modified this
so
it will contain an
objective standard
on which
to judge
the Agency’s action.
Information
will
be
required
as
“necessary
to
determine.”
Paragraph
(d)
requires
the
operator
to
provide
information
“within
a
reasonable
time.”
The
Board
has
to
modified
this
to
read:
“within
a time specified by the Agency
in the request,
which
shall
not be less than 30 days.”
Section 724.251
The
financial assurance forms have been modified to allow
inclusion of UIC plugging and abandonment cost estimates.
The
Board
has
updated
the
incorporation
by
reference
to
include these
amendments, but will not adopt the actual
language of the
forms.
Rather,
the
Agency
will
continue
to
promulgate
forms
in
conformity with the federal requirements.
As
is discussed
in connection with Section 724.243
above,
the Board has amended these
rules
to remove references
to USEPA
administrative orders as
a condition of default in financial
75-318
—14--
instruments.
The Agency needs to review the forms it uses to
assure
that
they
are
consistent
with
this
change.
Section 725.210
The
Part
725
closure
and
financial
assurance
rules
apply
to
TSD facilities which do not have
RCR.A permits.
They pose
additional
problems
because
of
the
ambiguity
in
the
USEPA
text
as
to
the
procedural
context
in
which
decisions
are
made.
Section
725.210
has
been
modified
to
specifically
mention
the post—closure care requirements applicable
to certain waste
piles
and
lagoons
from
which
the
operator
intends
to
remove
wastes
at
closure.
Section 725.211
The closure performance standard
is similar
to the
standard
for
permitted
facilities.
It
has
also
been
modified
to
recite
specific
closure
rules
for
various types of units..
The USEPA
rule references closure requirements of this “Subpart”, when
“Part”
is obviously intended.
Section 725.212
The requirements for the closure plan have been revised.
The operator
no longer needs
to keep the closure plan on site,
but must have it available
for
inspections
or mailed requests.
The rule now specifies plans
for
the closure of each
unit, and
for final closure of the
facility.
There
is now a procedure for
approval of interim status closure plans.
The USEPA rules
include
a requirement of a statement of reasons
to the operator
if a plan
is not approved, or
if
a modified plan
is approved.
Section 265.112(d) (1)
requires submission of the closure
plan 180 days prior
to closure of the first disposal unit,
“or
final
closure
if
it involves
such
a unit, whichever
is
earlier.”
This cannot be right, since
final closure could never
occur before closure of the first disposal
unit.
The Board has
modified Section 725.212(d) (1)
to reflect the language
for
permitted facilities
from 40 CFR 264.112, which avoids this
problem.
In Section 725.212(d)(3)
the existing language requires the
owner of
an
interim status facility
to submit
a closure plan no
later
than
15 days after
a closure order
from
a court or
the
Board.
Under
the existing language, issuance of
a compliance
order
under PCPA also triggered the requirement to file a closure
plan..
For the reasons noted
above, this has been modified
to
remove USEPA compliance orders.
75-319
—15—
Section 725. 217
As proposed, this Section would have allowed the Agency to
shorten
or extend
the post—closure care period
for
interim status
facilities.
This is not consistent with Part 724, which requires
Board action
for such decisions.
(PC #3).
The Board has
modified the proposal
to require Board
action.
Section 725.218
As proposed, and
as previously adopted, this Section was
apparently unclear
as
to whether
the Board
or Agency was
to make
various determinations concerning
modification
of
post—closure
care plans
for
interim status facilities.
(PC
#3)
The actual
text generally specified
the Agency.
However,
the final
paragraph, which has no
federal counterpart, required
a
concurrent variance
or rulemaking petition filed with the Board
to obtain modification of
a plan
in
a manner which would not
conform
with
Board
regulations.
The question of Board
or Agency authority is more complex
in
the interim status rules of Part 725 than
in the permit rules of
Part 724.
The
interim status rules lack
a complete set of
procedures which the Agency
is
to follow.
Rather,
there are
miniprocedures scattered about with the substantive rules.
The
Agency
has proposed to adopt procedural rules which
would
govern
hearings
conducted
by
the
Agency
on
interim
status
closure plans.
(35 Ill.
Adm. Code 166,
10
Ill.
Peg. 20353,
December 12,
1987.)
The Board has commented
to the Agency on
this proposal.
The Agency’s Part 166 procedures must be
consistent with the procedures specified
in Parts 725 and 705.
Section
725.218
as
proposed
contains
several
procedures
or
determinations
which
could
be
done
or
made
by
the
Board
or
Agency.
These
include:
725.218(d) (3)
determination that a unit must be closed
as
a landfill
725.218(d) (4)
request for modification of
a plan
725.218(f)
procedures
for modification of plan
725.218(g) (1)
standards for modification of plan or
length of post—closure care period on
petition from public
or operator
725.2l8(g)(2)
standards
for tentative decision
to
modify plan or
to propose change
in
length of post—closure care period by
Agency
75.320
—16--
Interim status facilities are required
to have closure and
post—closure care plans.
However,
the Agency does not generally
see,
review
or
approve
these
plans.
One
aspect
of
this
Section
involves
a determination by the Agency that the plan does not
meet the requirements set by Board
rules.
The rules set
procedures by which
the Agency notifies the operator, demands
a
modified plan and ultimately approves a plan which meets Board
rules.
This clearly
is within the Agency’s authority.
The other aspect of this rule involves changes
in the length
of the post—closure care period, which is set by Board
rule.
This could be one of two types.
The
first
is
a simple shortening
or extension of the specified period,
a determination which
clearly must be made by the Board.
The second arises because of
the modification of the USEPA rules
to focus on closure of
individual disposal units within a larger
facility.
These
rules
are supposed
to form a
framework for decision as
to whether
to
shorten or lengthen the post—closure care period
for
individual
units within the active life of the facility plus the post—
closure care period
for
the
last disposal unit
to be closed.
(51
Fed.
Peg.
16434,
16446,
May
2,
1986).
Paragraphs
(d)(3)
and
(d)(4), which involve requests
to
modify
the
plan
and
determinations
that
a
unit
must
close
as
a
disposal unit, are no different than actions
the Agency would
take
during
review
of
an
actual permit, and
are well within the
Agency’s authority.
These provisions remain
as proposed, with
the Agency making these determinations.
Paragraph
(f) specifies the procedures the Agency is to use
to modify
a plan.
Paragraph
(f)(2) has been added
to reference
Board procedures,
and to state
that the Agency is not
to follow
its procedures if the Board has already ordered modification of
the plan.
The Board will already have allowed comparable public
participation prior
to ordering such modification.
Note,
however,
that the
issues on modification of
a plan could
involve
decisions by both the Board and Agency.
For example, the Board
might
order
the post—closure care period
shortened, but the
Agency would still have
to approve the engineering aspects of the
plan based
on the shortened period, and approve reduced
financial
assurance.
In such
a case, after
the Board Order was entered,
the Agency would
follow the procedures specified
for
it.
However,
the substance of the Board Order would not be subject
to
modification as
a result of the Agency procedure.
Paragraph
(g)(1)
incudes standards under which changes to
the length of the post—closure period
or plan would
be
approved.
These could
be applied by either
the Board or the
Agency, depending
on
the nature of the petition..
The Board has
therefore struck
the references
to the Agency
in
the existing
language
to avoid possible confusion.
Paragraph
(g)(l)(B)
specifies procedures which the Agency
is
to
follow when it makes
this decision.
The Board has added
a provision referencing
the
75-321
—17—
Board
procedures,
and providing
that the Agency not follow the
specified procedures
if the Board has ordered the change.
Paragraph
(g)(2)
includes standards under which
the Agency
decides to
unilaterally modify
a plan.
These have been left as
proposed.
Note, however, that the Agency could not modify a plan
in any manner other than
to make
it
consistent
with
Board
rules.
If the Agency wanted
a plan modified
in
a manner other
than as specified
in the rules,
it would have
to propose
a change
to
the Board.
Note that the second sentence of Section
725.218(g)(2) says that the Agency shall “propose
to extend
or
reduce the post—closure care
period.’1
Although this
is taken
verbatim from Section 265.118(g) (2), the Board intends
a
different meaning than that attached
to the USEPA rule.
The
Agency would propose this change
to the Board utilizing the
procedures of paragraph
(i), rather than issuing the equivalent
of
a draft permit utilizing the procedures which
follow in the
USEPA rules.
The references
to Board procedures have been moved from
paragraph
(h)
to a new paragraph (1).
For the time being the
Board will continue
to
require site specific rulemaking
as the
mechanism for modifying Board—required interim status provisions,
including adjustments
to the length of the post—closure care
period.
However,
Section 28.1 of the Act now allows the Board
to
adopt “adjusted standards” procedures which could
be used
for
changing the length of the required post-closure care period,
both here and
in Part 724,
and also with respect
to other
similar
RCRA provisions.
Since
this would entail
a complete review of
the RCRA rules,
the Board declines
to do
so
at this time under
the pressure o~a mandated rulemaking
under
Section 22.4(a)
of
the Act,and
at
a time after
the opportunity for public comment
has passed.
Section 725.240
(not amended)
USEPA amended paragraph
(a)
at
51 Fed.
Peg.
16443, May
2,
1986.
The first change was the reference
to Section 725.250
instead
of Section 725.251..
This change has already been made in
the Board rules.
The second change
is
to make the Subpart apply
to owners
“or”
operators,
instead of “and”.
This
is wrong, and
inconsistent with paragraph (b).
The financial assurance
requirements apply to both the owner
and
the operator, although
action by one generally discharges the other..
For these reasons,
there
is no need
to modify existing Section 725.240.
Section 725.241
“UIC cost estimate” has been defined.
Section 725.242
The interim status closure cost estimate has been revised
in
a manner similar
to Section 724.242,
The USEPA rule includes
a
75-322
—18—
reference
in
paragraph
(a)
to
Section
265.178,
which
does
not
exist.
This
appears
to
be
the
appropriate
location
for
closure
requiremen
s
for drum storage areas.
However, none have been
adopted
for
interim status facilities.
Paragraph
(b) includes
a
reference to Section 265.243(e)(3), which has been corrected
to
read (e)(5).
Section 725.243
The Board
has adopted
the text of the financial assurance
requirements, repealing the incorporations by reference.
Section
725.243
is very similar
to Section 724.243.
The USEPA interim status rules reference 40 CFR 264.151,
which includes the forms
for financial assurance.
Section
724.251 incorporates the USEPA forms by reference,
and directs
the Agency to promulgate
forms based
on the USEPA forms.
The
Part
725 rules will reference the appropriate form
in 40 CFR
264.151,
and Section
724.251..
Section 725.251 will be repealed
in order
to maintain better consistency with USEPA.
Section 265.143(d)
includes transitional
rules which gave
interim status facilities
90 days
to obtain closure insurance
when the rules were adopted
in
1981.
Similarly,
Section
265.143(e)(4)
includes transitional rules granting extensions of
time
to compile financial data during 1981.
These have been
omitted
from the Illinois text,
although,
of course,
this does
not result
in any ex post
facto change in these rules.
Section 725.244
The cost estimate
for post—closure care under
interim status
is similar
to Section 724.244,
In paragraph
(b)
a reference
to
Section 725.245(d)(5)
has been corrected
to Section
725.245(e) (5).
Section 725.245
The interim status post—closure financial assurance rules
are similar
to
Section
724.245.
The
Board
has
set
them
out
in
full
instead
of incorporating them by reference.
Section
265.145(c)(9),
as amended, refers
to “permit requirements”.
This
has been changed
to “interim status requirements”.
Section 725.247
The Board
has adopted the interim status liability insurance
requirements
in full instead of incorporating them by
reference.
These
are similar
to Section 724.247.
Paragraph
(b)(4) of the USEPA rules
includes transitional rules allowing
operators time through November, 1983,
to obtain liability
insurance for nonsudden occurences.
Similarly,
paragraph
(f)(4)
allowed additional
time for submission of financial data for
75-323
—19—
operators seeking
to
self—insure.
These
have
been
omitted
since
the dates have passed.
Paragraphs
(c)
and
(d)
allow for adjustment
of the amounts
of required liability insurance at the instance of the operator
or
the Agency.
The USEPA rules have been modified
in
a manner
similar
to the comparable provisions of Part 724.
The
adjustments to the interim status insurance requirements
require hearings whenever there
is a significant degree of public
interest,
or
at the Agency’s discretion..
The Board has worded
this to more closely track the language of Section 705.182(a),
which applies
to permitted facilities.
The Board received
a public comment
from the American
Insurance Association
(PC #5).
They state that environmental
impairment
insurance
is
currently
unavailable
and
suggest
changes
to the rules
to make it available.
The Board
is not able
to
modify the rules
in the manner suggested
since this rulemaking is
pursuant
to Section 22.4(a)
of the Act.
The Association
is
welcome
to propose changes pursuant
to 35
Ill.
Adm. Code 102 and
Section 22.4(b)
of the Act.
The American Insurance Association’s comments also address
closure
insurance.
The Board has recently addressed closure
insurance
for non—hazardous waste
sites
in R84—22.
The Board
addressed similar comments
in that Docket.
Closure insurance
is
more akin
to life insurance than liability insurance.
Life
insurance is available even when the insurer cannot cancel the
policy following
the death of the insured.
Section 725.414
USEPA inadvertently omitted
the USEPA paint filter test from
the interim status liquids restriction as amended on July 15,
1985.
The Board
left
the: paint filter test in Section 725.414
as
amended
in P86—i.
However,
it
is now necessary to reletter the
subsections
to conform with the federal
lettering.
Section 731.101
The underground storage tank
(UST)
rules are drawn from 40
CFP 280.
The Board adopted the UST rules
in P86—1, effective
August
12,
1986.
Definitions of
“owner”
and “operator” were
added
at
50 Fed,
Peg.
46613.
These amendments should have been
adopted with P86—1,
but were inadvertently omitted.
Section 731.103
Notification requirements were
added
at 51 Fed.
Peg.
46612,
and amended
at
51
Fed. Peg.
13497.
Notification was required by
May,
8,
1986, which was before the effective date of the
authorizing
legislation
(Section 22.4(e)
of the Act),
and before
the Board
adopted the UST program (effective August
12,
1986).
75.324
—20—
The Board
has dropped
these dates to avoid
a retroactive
rule.
Notification will be required by State law as of the effective
date
of
these
amendments;
before
that
date,
notification
will
be
a federal requirement only.
Since owners will already have been
required
to notify under
federal
law,
there
is no
need for time
after
the
rules
become
effective.
This Opinion supports the Board’s Final Order
of this same
day.
The
Board
will
withold
filing
the
final
rules
until
after
March
6,
1987,
in
order
to allow time for motions for
reconsideration
by
the
agencies
involved
in
the
authorization
process.
IT
IS SO ORDERED.
I, Dorothy
M. Gunn,
Clerk of the
Illinois
Pollution
Control
Board,
hereby
certi~
that
the
above Opinion was adopted on
the ~
day of
~
,
1987,
by
a
vote
of
~
Dorothy M.,/Gunn,
Clerk
Illinois Pollution Control Board
75.325
