ILLINOIS POLLUTION CONTROL BOARD
February
6,
1986
IN THE MATTER OF:
)
)
AMERICAN NICKELOID DELISTING
)
R 86-5
PETITION
)
)
ORDER OF THE BOARD
(by J.
Anderson):
On December 19,
1985,
American Nickeloid Company (Nickeloid)
filed
a petition for rulemaking with the Board.
The petition
seeks to have certain wastes which Nickeloid produces
“delisted”
from the hazardous waste listings of 35
Ill. Adm. Code
721.
The
petition was filed pursuant to Section ZZ.4(~.)of the
Environmental Protection Act (Act), and
35 Ill.
Adm. Code
102.120,
720.120(a) and 720.122(a).
The wastes in question are wastewater treatment sludges from
electroplating operations and from lime treatment of spent pickle
liquor from steel finishing operations.
Such sludges are listed
as hazardous wastes from non-specific and specific sources under
generic codes
F006 and
1062
in
35
Ill. Adm.
Code 721.131 and
721.132 and 40 CFR 261.31 and 261.32.
They were listed as
generic hazardous wastes upon
a finding by USEPA that such
sludges usually contain the following hazardous constituents:
cadmium, chromium
(VI),
lead, nickel and complexed cyanide.
(35
Ill. Adm. Code 721. Appendix G,
40 CFR 261, Appendix VII).
On December
16,
1981,
the United States Environmental
Protection Agency (USEPA) granted
Nickeloid a
“temporary
exclusion” from the listing pursuant to 40 CFR 260.22 (46 Fed.
Reg.
61277).
USEPA determined
that, although the waste was
a
wastewater treatment sludge from electroplating operations and
lime treatment of spent pickle liquor from steel finishing
operations,
it did not contain the hazardous constituents which
caused the wastes to be listed.
Section 3001(f)(l)
of the Hazardous and Solid Waste
Amendments of 1984
(HSWA) mandated USEPA to review all temporary
exclusions by November
8,
1986,
and provided that all temporary
exclusions will expire on that date.
Nickeloid may need Board
action on the temporary exclusion up to that date.
In the event
the exclusion is continued under HSWA,
the Board may be able to
take further action pursuant to Section 22.4(a).
Beginning
in 1981,
the Board adopted regulations
establishing the Illinois RCRA hazardous waste program.
The
regulations were adopted pursuant to Section
22.4(a)
of the Act,
and are “identical in substance” with USEPA’s RCRA rules.
The
RCRA rules were last amended
in R85-22 on December
20,
1985.
The
history of these rulemakings
is summarized in the Board’s Opinion
-2-
adopted January
9,
1986.
Illinois received phase
I interim
authorization on May 17,
1982,
and final authorization on January
31,
1986.
The Board has not adopted the December 16,
1981 temporary
exclusion granted Nickeloid.
This exclusion does not appear in
40 CFR 260—266, the federal regulations which the Board has
followed, pursuant to Section 22.4(a) of the Act,
to fashion the
Illinois program.
Furthermore, Nickeloid has, until now,
never
petitioned the Board pursuant 35
Ill. Adm. Code 720.122 to delist
this waste
at the State level.
In the absence of such a
petition,
the Board had no way of determining whether it was
necessary to adopt the specific exclusion as
a part of the
Illinois program.
Section 22.4(a) of the Act requires the Board to adopt
regulations which are “identical in substance to federal
regulations.”
Section 20(a)(5) et
seq. establishes the
legislative intent that Illinois get and keep RCRA
authorization.
Section 4(1) names IEPA as the lead agency in the
authorization process.
The Board notes
that the USEPA,
in its January
31,
1986
final authorization action, addressed the delisting issues
in
part by stating:
Response.
Due to the 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 will not have independent
authority to delist hazardous waste.
Section
3001(f) of RCRA as amended requires U.S. EPA to
examine factors
in addition to those
that caused
the waste to
be listed when delisting
a waste.
Furthermore, U.S.
EPA is required 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.
Furthermore,
the Attorney General’s Statement
is based on an
analysis of the State’s equivalency to the federal
regulations promulgated
by July 29,
1984.
Since
the new Federal rules were promulgated subsequent
to that date,
U.S.
EPA 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,
U.S. EPA is responsible for
administering that portion of the program.
Since
U.S.
EPA does not believe that
35 IAC 720.120 and
720.122 are equivalent to new 40 CFR 260.20 and
—3-
720.22, and these are HSWA requirements,
the State
is not authorized to delist wastes
in lieu of U.S.
EPA.
Consequently,
a company which wants
its waste
delisted must comply with both 40 CFR 260.20 and
260.22 and
35 JAC 720.120 and 720.122.
The proposal raises several fundamental questions on which
the Board needs to be better informed before deciding whether or
not to publish
a proposal for public comment.
The Board requests
that the USEPA respond to the following questions by March
15,
1986.
This request does not preclude other participants from
responding during this time period.
In particular,
the Board
welcomes any clarifications from IEPA.
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, particularly HSWA related?
Finally,
the petition as filed does not include proof of
service on the USEPA,
as required to the Board’s RCRA Procedural
Rules adopted
in R84-10 on December 20,
1984 (35 Ill. Adm.
Code
102.123).
The Petitioner shall promptly provide such proof of
service.
IT
IS SO ORDERED.
Bill Forcade dissented.
I,
Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, heyeby certify that the a~pveOrder was adopted on
the
_________________
day of
__________________,
1986 by
a vote
of
/
Dorothy
M.
a’unn, Clerk
Illinois Pollution Control Board