ILLINOIS POLLUTION CONTROL BOARD
October
9,
1986
IN THE MATTER OF:
RCRA UPDATE,
USEPA REGULATIONS
)
R86-28
(4—1—86 THROUGH
6—30—86)
)
PROPOSAL FOR PUBLIC COMMENT.
PROPOSED 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.
In accordance with the RCRA
procedural
rules
(Section 102.202),
the Board invites public
comment for 45 days after
publication of the proposal
in the
Illinois Register.
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 provides for quick adoption of
regulations which are “identical
in substanceu
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—l.
There
are two notable USEPA actions during
this period which
have not been included
in this proposal.
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
73-123
—2—
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 itself.
HISTORY OF RCRA and UIC ADOPTION
The Illinois RCRA and
IIIC (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 st~:es.
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—l8
51 PCB
31, January 13,
1983,
7
Ill.
Reg.
2518,
March
4,
1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47
Fed,
Reg. 21043).
The UIC rules were adopted
as follows:
R8l—32
47 PCB 93,
May 13,
1982;
October 15,
1982,
6
Ill.
Reg.
12479.
The UIC rules were amended
in R82—18, which
is referenced
above.
The UIC rules 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 recently updated the UIC rules:
73-124
—3—
R85—23
June
19,
1986;
10 Ill,
Reg.
13274, August
B,
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,
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 rules to correspond with USEPA
amendments
in several dockets:
R84—9
June
13,
1985;
9 Ill, Reg. 11964,
effective July
24,
1985.
R85—22
December
20,
1985 and January
9,
1986;
10 Ill. Reg.
968, effective January
2, 1986,
R86—l
July 11,
1986;
10
Ill.
Reg.
13998, August
22,
1986.
R86—l9
Proposed July 11,
1986;
10
Ill.
Reg.
13500,
August
15, 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:
R84—34
November
21,
1984,
61 PCB
247;
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 procedures
to be followed
in cases
before
it involving the RCRA rules:
R84—l0
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,
73-125
—4—
The Board has also adopted requirements limiting and
restricting
the landfilling of liquid hazardous waste and
hazardous wastes containing
halogenated compounds:
R81—25
October 25,
1984,
60 PCB 381;
8
Ill. Reg. 24124,
December
4,
1984;
R83—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,
R86—9
concerns implementation of Section 39(h) of the Act, while R86—1l
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:
50
Fed,
Reg.
46612
Notification requirements
for UST
51
Fed,
Reg.
13497
Correction to
LIST rules
51
Fed.
Reg. 16443
Amendments
to closure and financial
assurance requirements
51
Fed.
Reg.
19177
Correction to paint
filter
test
51 Fed.
Reg.
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.
Section 702,187
Section 702.187
is drawn
in part from 40 CFR 270.42, which
was amended
at
51
Fed.
Reg,
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,
Reg.
16443.
Section 703,183(n),
(o)
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.
73-126
—5—
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”
is proposed
in R86—l9.
The Board will
actually adopt
this amendment
in that Docket prior to final
action on this proposal,
so that this definition will not appear
as underlined
in the final adoption of R86—28.
Section 721,132
The definition of K062, spent pickle liquor, was modified at
51
Fed.
Reg. 19322.
Note that K117, Kl18 and
1(136
are proposed
in R86—9.
They will actually be adopted
in that Docket.
Section 724.210
The closure and financial assurance requirements were
extensively amended
at
51
Fed,
Reg.
16443,
Most of the remaining
amendments discussed
in this Proposed Opinion are drawn from this
Federal Register.
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 otherSubparts.
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.
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 R83—19,
it
modified the language
to make it clear that the Agency’s decisior
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.
73-127
—6—
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
the facility remains open.
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 no such authority
in rural
areas.
The
rule has been modified
to require
filing
with
“any”
local authority, and
to require the plat to be
recorded with land
titles.
Section 724,217
This Section has been modified
to make the requirements
concerning
the post—closure care period more specific.
In R83—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 R84—lO.
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 724,216, or
to amended
Section 724,220,
When
it adopted this Section
in R82—l9,
the
Board specified the County Recorder and “any” local zoning
73- 128
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
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 R85—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 R84—22.
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 coricerr
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 R84—22 the Board determined that such standby
trusts
are expensive
and unnecessary under Illinois law,
However, the Board
has proposed
to retain
the standby trusts
in
this rulemaking, which
is pursuant
to Section 22.4(a)
of the
Act,
The Board welcomes comments on whether Section 22.4(a)
allows
for the deletion of the standby trust in the RCRA
financial assurance mechanisms,
73-129
—8—
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).)
The Agency has no comparable
power,
The existing rules
trigger application of financial assurance when the Board or
a
court orders closure,
There
is
a question as
to whether
Illinois
facilities are subject
to administrative orders from USEPA,
and,
if
so, whether such orders should trigger application of
financial assurance required by Illinois rules,
The Board has
not included these amendments, but solicits comment,
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)(lO),
The question on review of
such action would not be 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(i),
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.
The Board solicits comment on
these provisions.
The existing
rules generally provide that financial
assurance forms are
to be
identical to USEPA
forms,
and reference
Section 724.251, which
in turn references
the USEPA forms and
requires the use of IEPA forms
to be derived from the USEPA
forms.
it
is simpler, and more accurate,
to provide for
each
instrument that forms are to be “as specified
in Section
724, 251
,“
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.l45(b)(l)
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.
73-130
—9.-
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 proposed
to modify 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 proposed
to modify
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.
Section 725.210
The Part 725 closure and financial assurance rules apply
to
TSD facilities which do
not have RCRA permits,
They pose
additional problems because of the ambiguity of 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
“Part”, when
“Subpart”
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.
73-131
—10—
Section 265..ll2(d)(l) 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
is not understandable,
since
final closure could
never occur before closure of the first disposal unit.
The Board
has modified Section 725,2l2(d)(l)
to reflect the language for
permitted
facilities from 40 CFR 264.112, which avoids this
problem,
In Section 725,2l2(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.
The issuance of
a compliance order
under RCRA also
triggers the requirement to file a closure plan.
Is this
consistent with the language noted above
in connection with
application of proceeds from financial assurance?
(See Section
724,243(b) (4),)
Section 725.218
Existing Section 725.218(g)
allows the Agency to
reduce or
extend the post—closure period
for interim status facilities.
Is
this consistent with Section 724,217, which requires Board
approval for similar actions
at permitted
facilities?
Section 725,240
(not amended)
USEPA amended paragraph
(a)
at 51 Fed.
Reg.
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 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
reference’ in paragraph
(a)
to Section 265.178, which does not
exist.
This appears
to be
the appropriate location for closure
requirements 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).
73-132
—11—
Section 725.243
The Board
has proposed
to adopt
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,
As
proposed,
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.l43(e)(4)
includes
transitional
rules granting extensions of
time
to
compile
financial
data
during
1981,
These
have
been
omitted
from
the
proposal,
although,
of
course,
this does not
change
history.
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 proposed
to adopt 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
provisions
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
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
initiative
of
the
operator
or
the
Agency,
The
USEPA
rules
have
been
modified
in
a manner
similar
to
the
comparable
provisions
of
Part
724.
73-133
—12—
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.
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
R86—l.
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
CFR 280.
The Board adopted the UST rules
in R86—1, effective
August 12,
1986,
Definitions of “owner” and
“operator” were
added at
50
Fed, Reg,
46613,
These amendments should have been
adopted
with
R86—l,
but
were
inadvertently
omitted.
Section
731.103
Notification requirements were added
at
51
Fed.
Reg.
46612,
and
amended
at
51 Fed.
Reg.
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
LIST program (effective August 12,
1986).
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 Proposed Opinion supports the Board’s proposal for
public
comment of this
same day.
IT
IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, t~e~~by
certify that the above Proposed Opinion was adopted
on the
‘7~-~-~
day of
C~t~—~-e.&..’
,
1986, by a vote
of
(~—o
-‘
Dorothy
M.
Q’unñ, C1?rk
Illinois Pollution Control Board
73-134
