ILLINOIS POLLUTION CONTROL
BOARD
December 5, 1986
IN THE MATTER OF:
)
R86-5
AMERICAN NICKELOID
)
DELISTING PETITION
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board on a December 19,
1985,
regulatory proposal by American Nickeloid (‘tNickeloid”)
to
exclude certain lagoon sludges from regulation as
a hazardous
waste.
The petition was filed pursuant to
35
Ill.
Adm. Code
102.120.
The wastes
in question are wastewater
treatment sludges
impounded
in three surface impoundments at the Nickeloid facility
in Lima,
Illinois.
Such sludges are listed
as hazardous wastes
under generic code F006
—
Wastewater Treatment sludges from
electroplating operations,
except from the following process:
(1) sulfuric acid anodizing
of alumimum;
(2)
tin plating on
carbon steel;
(3)
zinc plating
(segregated basis)
on carbon
steel;
(4)
aluminum or zinc—aluminum plating on carbon steel;
(5)
cleaning/stripping associated with tin,
zinc or aluminum plating
on carbon steel;
and
(6) chemical etching and milling aluminum.
The listed constituants of concern for F006 wastes are cadmium,
hexavalent chromium, nickel and cyanide
(complexed)
35
Ill. Adm.
Code 721.131, Appendix G,
40 CFR 261, Appendix VII.
On December
18,
1981,
in response to a request by Nickeloid,
USEPA granted
a temporary exclusion from consideration of its
waste as hazardous.
Nickeloid petitioned the Board
for delisting
while
its petition for final delisting was pending with USEPA.
Pursuant to the Hazardous and Solid Waste Amendments of
1984
(HSWA),
Section 3001(f)(2)(B), Congress commanded the
Administrator
of USEPA to review all temporary exclusions by
November
8,
1986,
and provided that all temporary exclusions
expire on that date.
The exclusions ceased to be in effect on
November
8,
1986,
absent a final decision to grant or deny the
exclusion request.
The USEPA proposed
to deny Nickeloid’s application for final
exclusion as a hazardous waste on October
8,
1986
(51 FR
36024).
The comment period ended
on October
23,
1986.
No final
action has been published in the Federal Register but the
statutory expiration date
of November 8,
1986, has passed.
Consequently, Nickeloid’s waste
is no longer excluded and is
considered hazardous under
the RCRA program.
74-245
—2—
The disposition of this regulatory petition hinges on
whether Illinois presently has the authority to delist a waste as
hazardous,
independent of federal delisting action.
On January 30, 1986,
TJSEPA granted Illinois final
authorization
to operate its hazardous waste program in lieu of
the federal hazardous waste program.
However, the authorization
is subject to the limitations imposed by the HSWA (51 FR
3778).
In its response to comments concerning Illinois’ final
RCRA authorization,
(JSEPA addressed the question of the state’s
authority to delist hazardous wastes.
“Comment.
If
Illinois
is
granted
final
authorization,
would
it
have
authority
to
delist
waste
pursuant
to
Section
720.122
of
Title
35
of
the Illinois Administrative
Code
(35 IAC 720.122).
Response.
Due
to
Section
3006(g)
and 3001(f)
of RCRA, as amended
by the Hazardous and Solid
Waste
Amendments
of
1984,
(HSWA)
and
amend-
ments made
to
40 CFR
260.22 on July 15,
1985,
(50
FR
28702),
Illinois
will
not
have inde-
pendent authority
to
delist
hazardous waste.
Section
3001(f)
of
RCRA
as
amended
requires
USEPA
to
examine factors
in addition to those
that
caused
the
waste
to
be
listed
when de—
listing
a
waste.
Furthermore,
USEPA
is re-
quired
to
provide
the public with notice
and
comment prior
to making
a final determination
on
any
petition.
These
requirements
were
codified
in
40
CFR 260.20
and
260.22
on July
15,
1985.
The
Illinois
regulations,
35
IAC
720.120
and
720.122,
do
not
appear
to
be
equivalent
to
these
new
requirements.
Fur-
thermore,
the Attorney General’s Statement
is
based
on
an
analysis
of
the
State’s
equiva—
lency
to
the
federal
regulations promulgated
by July 29,
1984.
Since the new Federal rules
were
promulgated
subsequent
to
that
date,
USEPA
does
not
believe
that
the
Attorney
General
has
certified
to
this
equivalence.
According
to
Section
3006(g)
of
RCRA,
as
amended,
until
a
State receives authorization
for
any
HSWA provision,
USEPA
is
responsible
for
administering
that
portion
of
the pro-
gram.
Since
USEPA
does
not
believe
that
35
IAC 720.120 and
720.122
are equivalent
to new
40 CFR 260.20 and
720.22,
and
these
are HSWA
requirements,
the
State
is
not authorized
to
delist waste
in
lieu of USEPA.
Consequently,
a
company which wants
its waste delisted must
74-246
—3—
comply with both
40
CFR 260.20 and 260.22
and
35 IAC 720.120 and 720.122.”
On February 6,
1986,
the Board, by Order, posed the
following questions to USEPA,
the Illinois Environmental
Protection Agency, as well as any other participant:
1)
Are
the
December
16,
1981,
temporary
exclusions
“federal
regulations”
under
federal law and thus subject to delisting
under Section 22.4(a)
of the Act?
2)
During
the
interim authorization period,
did
the
Board
listings
in
35
Ill.
Adm.
Code
721
define
the
scope
of
the
RCRA
hazardous waste program in Illinois?
3)
Did
USEPA
authorize
Illinois
to
delist
wastes pursuant
to
interim authorization?
4)
Will
delisting
authority
change
with
future
phases
of
authorization,
par-
ticularly HSWA related?
USEPA responded with written comments for the record in this
proceeding on March 17,
1986.
In pertinent part, those comments
state:
“During
Interim Authorization,
the
State
of
Illinois had the authority to delist hazardous
waste
since
35 IAC 721 was part
of the interim
authorized
program.
However, due to Sections
3006(g) and 3001(f)
of
RCRA,
as amended by the
Hazardous and
Solid Waste
Amendments
of
1984
(HSWA),
and
amendments made
to
40
CFR 260.22
on July
15,
1985,
(50
FR 28702),
Illinois
no
longer
has
the authority
to
delist
hazardous
waste.
The
new amendments
add paragraph
(f)
to
Section
3001,
establishing
specific
cri-
teria
and
procedures
for
delisting
peti-
tions.
This
subsection
requires
USEPA
to
consider additional factors,
such as constitu-
ents
other
than
those
for which the waste was
listed,
if the Administrator has
a reasonable
basis
to believe
that such
additional
factors
could
cause
the
waste
to
be
a
hazardous
waste.
The
amendments
also
require
the Ad-
ministrator
to
provide
notice
and
an
oppor-
tunity
for comment
on
the
additional
factors
considered
before
granting
or
denying
a
pe ti tion.
74-247
—4—
The
State
of
Illinois
did
not
receive
authorization
for
delisting
with
its
Final
Authorization
on
January
31,
1986.
Conse-
quently,
a
facility must comply with both
40
CFR
260.20 and
260.22
and
35
IAC 720.120
and
720.122.
However,
the
State
may
have
the
authority to delist hazardous waste that USEPA
has already delisted,
pursuant
to
the proced-
ures
listed
in
its
regulations.
If
a
temporary exclusion
is
granted
by
the Board,
the exclusion
is only good
until November
8,
1986,
since
all
temporary exclusions granted
to
facilities
that
have
not
yet
received
a
final
determination,
will
expire
on November
8,
1986.
Any
exclusion
granted
beyond
that
date may result
in making the Illinois program
less
than
equivalent
to
the
Federal
program
which
is not acceptable.”
Since this March 17,
1986, comment, USEPA has promulgated
regulations pursuant to HSWA which deal with delisting and the
Board, pursuant to Section 22.4(a) of the Act, has updated its
regulations accordingly (R86—l,
RCRA Update, Opinion and Order,
7/11/86).
The Board is not aware of any Attorney General
certification of equivalency for these particular regulations and
no USEPA action granting HSWA authorization to Illinois has
occurred.
Volume
51 of the Federal Register, dated November 14,
1986, states at 41307 that:
“As a result of enactment of the Hazardous and
Solid
Waste
Amendments
of
1984,
any
state
which
had
delisting
programs
prior
to
the
Amendments must become reauthorized under the
new
provisions.
To
date
only
one
state
Georgia
has
received
approval
for
their
delisting program.”
Illinois had
a delisting program during
interim status prior
to
the HSWA.
While Illinois did receive final RCRA authorization on
January 31, 1986,
Illinois
is not HSWA authorized.
Consequently,
Illinois must be specifically reauthorized under HSWA before
it
can independently delist
a hazardous waste.
This specific
reauthorization for the delisting program,
or any aspect of HSWA
has not occurred yet.
Presumably this reauthorization will be
noticed
in the Federal Register.
The Board finds
that it does not presently have authority to
independently delist a hazardous waste absent final
federal
action delisting the waste.
The Board takes notice of
the fact
that its authority in this area will change
as the HSWA
authorization process progresses.
The Board does have authority
to delist
a waste where USEPA has delisted such
a waste.
R85—2,
Amoco Oil Company, April
24,
1986.
74-248
—5—
The Board dismisses Nickeloid’s delisting petition.
Nickeloid’s temporary federal exclusion expired on November
8,
1986.
USEPA proposes
to deny Nickeloid’s final delisting
petition.
The Board does not have the authority,
at this time,
to delist Nickeloid’s waste.
ORDER
The regulatory proposal
of American Nickeloid Company
is
dismissed and the Clerk of the Board is directed to close the
docket.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby ce~tifythat the,~boveOpinion and Order was
adoptedpn
the .~Z
day of
~
,
1986,
by a vote
of
____________
/
,~/
~
~
Dorothy
M.
Gu’nn, Clerk
Illinois Pollution Control Board
74-249