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

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