ILLINOIS POLLUTION CONTROL BOARD
January
9,
1986
IN THE MATTER OF:
RCRA UPDATE, USEPA REGULATIONS
)
R85—22
(4/24/84 THROUGH 6/30/85)
)
FINAL ORDER.
ADOPTED RULE.
OPINION OF THE BOARD
(by
J. Anderson):
By
this Order, pursuant to Section 22.4(a)
of the
Environmental Protection Act
(Act),
the Board
is amending the
RCRA regulations.
On October
1,
1985,
the Illinois Environmental Protection
Agency
(Agency) filed with the Board
a rough draft
of a proposal
to update
the RCRA regulations.
The Agency’s draft also included
an update
of the UIC regulations
(35 Ill. Adm. Code 704);
these
will
be addressed in Docket R85-23.
The Agency’s submittal is
marked
PC No.
1 in both dockets.
On October
10,
1985 the Board proposed
to amend
the RCRA
rules.
The
proposal appeared on November
1,
1985
at
9 Ill. Reg.
16536.
The public comment period
specified by Section 102.103
expired on December 16,
1985.
The
Board received public comment
as
is detailed below.
The Board modified
the proposal in
response
to comments and, on December 20,
1985,
adopted final
rules.
Section 22.4 of the Act governs adoption of regulations
establishing
the RCRA hazardous waste 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
265.
Permitting
procedures have been moved from 40 CFR 122
et
seq.
to
40 CFR 270
at
seq.
This rulemaking updates Illinois’
RCRA rules
to
correspond with federal amendments adopted April
24, 1984 through
June
30,
1985.
The Federal Registers utilized are
as follows:
49 FR 19922
May 10, 1984
(Ex
9)
49 FR 20138
May ll,~1984
(Ex 10)
49 FR 21678
May 22, 1984
(Ex 22)
49 FR 23284
June
5, 1984
(Ex 11)
49 FR 37066
September
21, 1984
(Ex 12)
67-479
49 FR 44978
November 13, 1984
(Ex 13)
49 FR 45304
November 15, 1984
(Ex 23)
49 FR 46094
November 21, 1984
(Ex 14)
49 FR 47390
December
4,
1984
(Ex 15)
49
FR 49568
December 20, 1984
(Ex 16)
50 FR 614
January
4,
1985
(Ex 17)
50 FR 1978
January 14, 1985
(Ex 18)
50 FR 4513
January 31, 1985
(Ex 24)
50 FR 14216
April 11, 1985
(Ex 19)
50 FR 16044
April 23, 1985
(Ex 20)
50 FR 18370
April
30, 1985
(Ex 21)
Copies
of each of
these items are attached to the Agency’s
proposal
as exhibits with the number indicated.
HISTORY OF RCRA
ADOPTION
The Illinois RCRA and UIC 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
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
Special procedures
for RCRA cases are included
in Parts 102,
103 and 104.
This proposal involves additional procedures
to be
added to Part 106,
and a new Part
726.
Adoption
of these rules has proceeded
in several stages.
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—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:
R8l—32,
47 PCB 93,
6 Ill. Reg.
12479.
67-480
The UIC rules were amended in R82~-l8, which is referenced
above.
Illinois received UIC authorization February
1, 1984.
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 have been adopted and amended, but
authorization has not been received:
R82-19,
53 PCB 31, 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.
R84-9,
June 13,
1985;
9
Ill. Reg. 11964,
effective July 24, 1985.
On September
6,
1984,
the Third District Appellate Court
upheld the Board’s actions
in adopting R82—19 and R83-’24.
(Commonwealth Edison et al.
v.
IPCB.)
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;
8
Ill. Reg.
24562,
effective
December 11,
1984.
The Board has adopted procedures
to be followed
in cases
before
it involving the RCRA rules:
R84-~1O, December 20, 1984, and January
10,
1985.
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;
8 Ill.
Reg. 24124,
December
4,
1984;
R83~-28, December
20,
1984,
and January 10,
1985,
9 Ill.
Reg.
730.
PUBLIC COMMENT
The Board received the following comments during,
and
shortly after,
the comment period:
PC2&3
USEPA
PC
4
Illinois Power
Co.
PC
5
IEPA
67-481
—4—
The Board also received codification comments
from the
Administrative Code Unit.
RESPONSE TO COMMENTS
Section 106.401
Sections 720.130
et
seq.
provide for certain determinations
which result in certain wastes or activities being excluded from
regulation.
Part 106 sets forth procedures
to be followed when
the Board
is
to make
the determinations.
The Part 106 procedures
are patterned after the RCRA
variance procedures adopted in R84—lO.
The Board will receive
th~Agency’s recommendation and conduct
a public hearing on the
petition and recommendation.
The Part utilizes the adjusted
standard provision recently added
in Section 28.1
of the Act.
The petition must include
the information
specified
-
Section 720.130 et seq.,
“for the type of determination sought.”
(PC
5)
Section 106.402
The Board has added
a requirement that the petitioner
serve
the Agency.
This will trigger
the Agency’s duty to provide
notice
(PC 5).
Section 106.404
The Part 104 time limits are to be followed
(PC
5).
Section 106.405
40 CFR 260.33 allows
30 days public comment,
while this
Section allows
45 days,
consistent with the RCRA variance
procedures adopted
in R84—lO.
(PC
5)
Section 106.406
The Agency’s recommendation serves the function of
a
tentative decision
in the procedures
at 40 CFR 260.33.
The
hearing and comment
is on the petition and recommendation.
(PC 5)
Section 106.408
This Section uses
a 35-day appeal time rather than the 30-
day time specified
in the federal regulations.
The time to
appeal
to the Board
is fixed
by Section
40
of the Act,
which the
Board cannot modify by rule
(PC 5).
Section 720.110
“Manifest Document Number”
This definition has been corrected
to fix inconsistent
language previously adopted
(PC
3).
67-482
—5—
Section 720.110
“SIC Code”
This
definition has been added to define an abbreviation
used
in a later section.
The Administrative Code Unit asked
that
“SIC Code”
be defined.
The Board has referenced the current
edition of the “Standard Industrial Classification Manual”
as
provided by the Library of Congress.
Section 720.130
—
720.133
These sections are drawn from
40 CFR 260.30
-
260.33.
The
word
“variance”
has been excised since
the determinations do not
involve arbitrary
or unreasonable hardship within the meaning of
Title
IX of the Act.
The Board has substituted “determina-
tion.”
The titles inform the user
of the contents of the
Sections adequately without any attempt to introduce
the
exclusive meaning
(PC 4).
Section 720.141
The Agency will issue
a “memorandum of decision” which will
be equivalent
to
a
“final order”
issued by USEPA pursuant to 40
CFR 260.41.
The word
“order” has been eliminated
to avoid
confusion with Board
“Orders” referred to in the Act,
for example
in Section
41.
The Agency’s memorandum of decision may be appealed
to the
Board within 35 days,
longer than the 30 days allowed for appeal
of
a USEPA action in
40 CFR 260.41.
The
35 days is mandated by
Section
40 of
the Act.
(PC 1,
4).
Pursuant to Section 22.4(a), the Board has not specified
any
deadline for Agency action pursuant to
this Section
(PC 5).
Section 721.101
When the Board adopted this
Section
it split
40 CFR 261.1(b)
into two portions.
Section 721.101(b) deals with the possible
expansion of the definition
of hazardous waste
to include wastes
within the RCRA statutory definition, but not identified or
listed in the regulations.
Section 721.101(d) recites the
Agency’s inspection authority under
the Act and the RCRA Act.
The combination of these concepts,
as phrased in
40 CFR 261.1(b)
seems
to allow expansion of the definition of hazardous waste to
include anything the Agency believes
to be hazardous.
This would
be clearly inconsistent with the Board’s authority to list
hazardous waste
(Section 22.4
of the Act),
to say the least.
The proposal picked-up minor changes to 40 CFR 260.1(b),
and
inadvertently restored earlier rejected language
to the Section
721.101(b).
The Board has corrected the language
so as to
incorporate the substance of the federal amendment without
67-483
—6—
confusing the inspection authority with the definition of
hazardous waste.
(PC
5)
Section 721.103
The stricking and underlining have been corrected
in
paragraphs
(c)(2)(A).
(PC
5).
Section 721.106
The cross reference
in paragraphs
(a)(2)(B) has been
corrected
(PC 3).
Pursuant
to Section 22.4(a)
the
Board has delayed regulation
of used oil until future federal regulations are promulgated.
(PC
5).
Section 721.131
The listing for F028
is in the conjunctive rather than the
disjunctive,
a probable error
in the federal regulations.
However, pursuant
to Section 22.4(a),
the Board has adopted
the
federal language.
Section 721.133
Typographical errors have been corrected
in the introductory
material
in the note following paragraph
(d).
(PC 2 & 5).
Section 721, Appendix C
The headings for F020
-
F023 were erroneously struck in the
proposal
(PC 4
& 5).
The listings for FOOl
-
F005 were proposed for modification
at
50 Fed.
Reg.
18381.
These amendments were not adopted
through
June
30,
1985.
(PC 4).
Section
721, Appendix
I
The existing material in this appendix was adopted with the
Illinois dioxin listings pursuant
to Section 22.4(d)
of the Act
(R84-34).
Since the federal rules now list dioxins,
the details
have been repealed and the federal test methods adopted by
reference.
The proposal included new material in Appendix
I listing
wastes excluded from specific sources.
The Board has dropped
these in the absence of any evidence that these delistings
have
any bearing on the Illinois
program (Section 720.122).
67-484
—7—
Section 722.134
This was proposed as Appendix
J to Part 721
(PC 4).
Section 724.443
The formula
in paragraphs
(a)(1) has been modified
to remove
a printer command character which was printed.
As
stated, the
formula gives
a result
in percent
(PC 4).
Paragraphs
(a)(2) has been corrected
to require
a 99.9999
DRE for incinerators burning dioxin wastes
(PC 4).
Section 725.101
Amendments
to paragraphs
(a) and
(b)
were inadvertantly
omitted from the proposal and have been added
(49 Fed.
Reg.
46095).
(PC 4).
Section 726.101
et
seq.
Several minor typographical errors have been corrected
in
these Sections
(PC 2).
The Board adopted
the amendments
to
40 CFR 106,
703,
720,
721,
722,
724,
725 and 726 in
a separate Order dated December
20,
1985.
This Opinion supports that Order.
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
~
day of
~
,
1986,
by
a vote of
‘7—O
Dorothy
M. Gunn,
Clerk
Illinois Pollution Control Board
67-485