ILLINOIS POLLUTION CONTROL BOARD
October 23, 1986
IN THE MATTER OF:
)
RCRA UPDATE,
USEPA REGULATIONS
)
R86-19
(1—31—86 THROUGH 3—31—86)
FINAL ORDER, ADOPTED RULE.
FINAL 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 May 22,
1986,
the Board
opened this docket
for
the
purpose of updating the RCRA rules
to agree with recent USEPA
amendments.
On July 11,
1986,
the Board
adopted
a proposed
Opinion and Order providing
for publication of the text of
proposed
rules and allowing public comment.
Section 22.4(a)
of the Act
(Ill.
Rev.
Stat.
1985,
ch.
ill
1/2, par 1022.4(a))
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 adopted from February
1
through
March
31,
1986.
The
Federal
Registers utilized are as
follows:
February 13,
1986;
51 Fed.
Reg.
5327
—
5331
February 25, 1986;
51
Fed.
Reg.
6537
—
6542
March 24,
1986;
51 Fed. Reg.
10145
—
10178
On September 18,
1986,
the Board received codification
comments from
the Administrative Code Unit.
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,
administrative assistant,
in the coordination and oversight
process.
73-467
—2—
PUBLIC COMMENT
The proposal appeared at
10
Ill.
Reg.
13500, August 15,
1986.
The
Board received
the following public comment:
PC*1
USEPA, August
21, 1986
PC#2
Chemical Waste Management,
Inc.,
September
29,
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
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:
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 rules were adopted
as follows:
R81—32
47 PCB
93, May
13,
1982;
October 15, 1982,
6
Ill.
Reg. 12479.
The
UIC
rules
were
amended
in P82—18,
which
is referenced
above.
The
UIC
rules
were
also
amended
in
R83—39:
73-468
—3—
R83—39
55 PCB 319, December
15,
1983;
7 Ill. Peg.
17338,
December
20,
1983.
Illinois received UIC authorization February 1,
1984.
The
Board
has recently updated the UIC rules:
P85—23
June 19,
1986;
10 Ill. Reg.
13274, August
8,
1986.
P86—27
Opened July
11,
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:
P82—19
53 PCB 131, July 26,
1983,
7 Ill.
Peg. 13999,
October
28,
1983.
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 a1.
v.
IPCB,
127 Ill. App.
3d 446;
468 NE
2d 1339
(Third
Dist. 1984).)
The
Board updated
the
RCPA
rules
to
correspond
with
USEPA
amendments
in several dockets:
P84—9
June 13,
1985;
9 Ill.
Reg.
11964, effective July
24,
1985.
P85—22
December
20,
1985
and
January
9,
1986;
10 Ill.
Peg.
968, effective January
2, 1986.
P86—i
July 11,
1986;
10 Ill. Peg.
13998, August
22,
1986.
R86—l9
Proposed July 11, 1986;
10 Ill.
Reg.
13500, August
15,
1986.
P86—28
Opened
July
Ii,
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
November 21,
1984,
61 PCB 247;
8 Ill. Reg.
24562,
effective December
11,
1984.
This was effectively repealed
by P85—22, which included
adoption of USEPA’s dioxin listings.
73-469
—4—
The
Board
has
adopted
procedures
to
be
followed
in
cases
before
it involving the PCRA rules:
P84—10
December
20,
1984
and
January
10,
1985,
62
PCB
87,
349;
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, which
is listed above.
The Board has also adopted
requirements limiting and
restricting the landfilling of liquid hazardous waste
and
hazardous wastes containing
halogenated compounds:
P81—25
October 25, 1984,
60 PCB 381;
8
Ill.
Peg.
24124,
December
4,
1984;
P83—28
February 26,
1986;
10 Ill.
Reg. 4875, effective
March
7,
1986.
The Board has opened
two new dockets dealing with
restrictions on landfilling liquid hazardous waste.
P86—9
concerns implementation of Section 39(h)
of the Act, while P86—li
concerns the relationship of the liquid hazardous waste ban to
the USEPA liquid hazardous waste bans.
(Orders of February 26,
1986,
and June
11, 1986.)
DETAILED DISCUSSION
The USEPA amendments
involved
in this update
are summarized
as follows:
51
Fed. Peg. 5330
Listing of wastes produced
from the
manufacture of ethylene dibromide.
51 Fed.
Peg.
6541
Listing
of solvent wastes from use of
1,1,2—trichioroethane, benzene,
2—
ethoxyethanol and nitropropane.
51
Fed.
Reg. 10174
Regulation of generators between 100 and
1000 kg per month
Section 703.124
This Section
is drawn from 40 CFR 270.1, which was amended
at
51
Fed.
Peg.
10174.
Paragraph
(a)
has been amended
to remove
the reference
to
the
90 day accumulation period.
Instead, the
time periods of Section 722.134 are referenced generally,
since
they will
no
longer be 90 days
in all
cases.
Section 703.150
This Section
is drawn
from 40 CFR 270.10(e), which was
amended
at
51
Fed.
Reg.
10174.
It was also recently amended
in
73-470
—5—
P86—i.
Paragraph
(d) has been added.
This will require small
quantity generators above 100
kg per month which dispose of
hazardous waste on-site
to apply for permits by March 24,
1987.
Section 720.110
This Section
is drawn from 40 CFR 260.1, which was amended
at
51
Fed.
Peg.
10174.
“Smaii quantity generator” has been
defined
as
a person who generates less than 1000
kg
in
a calendar
month.
Note that this includes persons who generate less than
100
kg
per
month.
Section 721.101
This Section
is drawn from 40 CFR 261.1, which was amended
at
51 Fed.
Beg.
10174.
Paragraph (a)(l)
has been amended to
reference “conditionally exempt” small
quantity generators, which
is defined
in Section 721.105.
A reference
to Part 726
has also
been added,
and
the terminology referencing
recycled waste has
been updated.
Section 721.105
This Section
is drawn
from 40 CFR 261.5, which was amended
at
51
Fed.
Reg.
10174.
It was also recently amended
in P86—i.
This Section defines “conditionally exempt”
small quantity
generators.
Paragraph
(g) specifies the conditions
for exemption
of
a small quantity generator under 100 kg per month.
Section 721.131
This Section
is drawn from 40 CFP 261.31, which was amended
at
51
Fed.
Peg.
6541.
It was
also recently amended
in P86—i.
The amendments add
to
the solvent listings F002 and F005.
l,l,2—trichloroethane has been added
for F002,
and benzene,
2—
ethoxyethanol and 2—nitropropane have been added
to
F005.
Section 721.132
This Section
is drawn from 40 CFR 261.32, which was amended
at
51 Fed.
Reg.
5330.
It was also recently amended
in R86—1.
The amendments add generic wastes Kli7,
KllS
and K136.
These
are wastes
from the production of ethylene dibroniide by
bromination of ethene.
Section 721.133
This Section
is drawn from 40 CFR 261.33,
which was amended
at
51 Fed.
Peg.
6541 and 10174.
It was also recently amended
in
P86—i.
73-471
—6—
The amendments derived
from 51 Fed.
Reg. 6541 identify 2—
nitropropane
as
toxic
as
well
as
flammable,
and
add
U359,
2—
ethoxyethanol,
to
the
list
of
toxic
wastes.
The amendments derived from 51
Fed.
Peg.
10174 change the
introductory language
to Section 721.133(f)
to reference the
revised small quantity generator exclusion rule of Section
721.105(a)
and
(g).
Section 721.Appendix
C
This Section
is drawn from 40 CFP 261, Appendix III, which
was amended
at
Si
Fed.
Peg.
5330
and 6541.
It was
also recently
amended
in P86—1.
The amendments specify analytical
techniques
for ethylene dibromide,
2—ethoxyethanoi and 2—nitropropane.
The
Board has updated
the incorporation by reference of this table.
Section 721.Appendix G
This Section
is drawn from 40 CFR 261, Appendix VII, which
was amended
at
51 Fed.
Peg.
5330
and 6541.
It was also recently
amended
in P86-i.
The
amendments derived from 51 Fed. Peg.
5330 list ethylene
dibromide as the constituent which caused K1l7, K1i8
and K136
to
be listed.
The
amendments at 51 Fed. Peg.
6541 identify 1,1,2—
trichioroethane as a constituent which caused F002
to be listed,
and 2—ethoxyethanol, benzene
and 2—nitropropane as constituents
which caused F005
to be listed.
Section 721. Appendix H
This Section
is drawn
from 40 CFR 261, Appendix VIII, which
was amended
at
51
Fed.
Reg.
6541.
It was also recently amended
in P86—i.
The
amendments add 2—ethoxyethanol
and 2—nitropropane
to the list of hazardous constituents.
Section 722.120
This Section
is drawn from 40 CFR 262.20, which was amended
at
51
Fed.
Peg.
10174.
This Section creates
an exemption from
the manifest requirements for small quantity generators above
100
kg per month which
have with
a reclaimer
a contract which
specifies the type
and frequency of shipments, which must be made
on the recycler’s vehicles.
The generator
is required
to
maintain
a copy of the reclamation agreement
for at least three
years after
its expiration.
This
is similar
to the “Safety—
Kleen”
exemption from the Part 809 manifest requirement.(Safety—
Kleeri
v.
IEPA PCB 80—12;
39 PCB 38,
July 10, 1980;
Supreme Court
Rule 23 Order,
2d District, September 18,
1981.)
73.472
—7—
Section 722.134
This Section
is drawn from 40 CFR 262.34, which was amended
at
51
Fed.
Reg.
10174.
Paragraphs (d),
(e)
and
(f)
add
accumulation times applicable
to small quantity generators over
100 kg per month.
The
small quantity generator
is allowed
to accumulate
hazardous waste
for
up to 180 days,
provided the total never
exceeds 6000
kg.
The generator has
to comply with the usual
storage, dating
and labeling requirements for the accumulated
waste, except that the small
quantity generator must follow
certain specified emergency procedures,
instead of having
to
prepare
a plan pursuant to Part 725.
The small quantity
generator has
to name
an emergency coordinator,
train employees
and
take certain actions in
the event of a spill
or
fire.
Paragraph
(e)
allows
the small quantity generator
to
accumulate
waste
for
up to 270 days
if the generator has to
transport the waste more than 200 miles
for off—site
management.
The same quantity limits
and requirements apply to
such
a generator.
Paragraph
(f), as proposed provided
that the small
quantity
generator which exceeds the accumulation amounts or
times
is
subject
to
the RCRA hazardous waste management permit
requirements.
However,
the Agency was authorized
to extend
the
time limitations
for
up to 30
days at its discretion,
“due
to
unforseen,
temporary and uncontrollable circumstances.”
Chemical Waste Management objected
to the extension
provision on the basis that it was a variance provision which
could only be acted
on by the Board.
(PC*2).
The Board
agrees with Chemical Waste Management that this
provision as well as
a similar provision
in paragraph
(b)
must be
changed
a)
to comport with the bifurcated Illinois system,
b)
to
remove
the discretionary authority (i.e. unappealable) language,
and
c) because such determinations have the major effect of
placing
the generator
in or out of the Board
permit system.
Therefore,
the language
in both paragraphs
(b)
and
(f)
has
been changed
to utilize
the provisional variance/variance routes,
with the restrictions that no variance can exceed 30 days and
that
the arbitrary or unreasonable hardship showing
is confined
only
to that which is due
to
a combination of “unforeseen,
temporary and uncontrollable circumstances”.
Section 722.144
This new Section
is drawn from 40 CFR 262.44, which was
amended
at
51 Fed.
Reg.
10174.
The small quantity generator
above
100
kg
per month
is exempt
from recordkeeping
and reporting
requirements except as specifically provided.
The small
quantity
73-473
—8—
generator above
100 kg
per
month must keep records concerning
accumulation times and quantities
in the preceding Section.
Such
generators must also keep copies of manifests and test results as
specified
in
Section 722.140,
and retain records for longer
periods
if instructed
to do
so.
Section 723.120
This Section
is drawn from 40 CFR 263.20, which was amended
at
51
Fed.
Peg.
10174.
This Section complements Section
722.120(e).
It exempts
a recycier
from the transporter
requirements when the recycler
is carrying waste
from a small
quantity generator above
100
kg per month pursuant
to
a
reclamation
agreement.
The recycler has
to carry a shipping
paper with the manifest information on
it, and retain records for
at least
three years.
This
Final Opinion supports the Board’s Order
amending
the
RCRA rules of this same day.
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
7~day
of
~
,
1986,
by a vote of
~.—o
Dorothy M.
unn, Clerk
Illinois Pollution
Control Board
73-474