ILLINOIS POLLUTION CONTROL BOARD

January

10, 1985

IN THE MATTER OF:

R84~:L0

RCRA PROCEDURAL RULES

FINAL ORDER.

ADOPTED RULES

FINAL OPINION OF THE BOARD

(by J.

Anderson):

This Opinion supports the Board’s Final Order of Decem-

ber 20,

1984.

On March 21,

1~4,

in

anticipation of

final

“Phase II”

RCRA

authorizations

the

Board

ouened

this

docket

for the

purpo~e of

adopting

j~u~

ocedural

public notice and

participation

rules

to

be

followcd

in cases arisinq pursuant to

the

RCRA

and

UIC

rules,

Sinco

the Board discerns no necessity

for

specialized UIC proccdures,

this aspect

of the

proposal

has

been dropped.

On June

4,

1984 the Board adopted

a Proposed

Opinion

and Order for first notice.

The proposal appeared at

8 Ill.

9888,

June 29,

1984,

The Board received the following

1.

United States Environmental Protection Agency

(USEPA), August

7,

1984

2.

Illinois Environmental Protection Agency

(IEPA or

Agency), August

13,

1984

3.

Commonwealth Edison et aL, August

13,

1984

4.

Chemical

~‘7asteManagement~

August

14,

1984

5.

USEPA, August

24, 1984

On July

6, 1984 the Board requested preliminary

review

from the Joint

Committee on Administrative Rules

(JCAR).

Pre~iminary

review

questions

on

35

111.

Adrru Code 103

and

104

were

received

July 20,

1984,

On July 13,

1984 the

Board received codification comments

from the Administrative

Code Unit,

‘As

used

in this Opinion,

the term ~rules”

is intended

to be interchangeable

with ~regulations”.

2unless

otherwise

indicated,

all

references

to

“Sections”

or

“Parts”

are

to

Illinois

Administrative Code,

Title

35,

3me

Board

ap~veciatesthe assistance of

Morton

F.

Dorothy

in

drafting

the

ruluc.

62~.349

---

On

November

8,

1984

the

Board

modified

the proposal

in

response

to

comments

and

sent

it. to second notice.

On

December 11,

1984 JCAR objected

to provisions

of

Sections

103.263 and 103.268.

On December 20,

1984 the Board modified

these provisions to meet the

objections, and

modified

other

provisions in response

to

JCAR staff

comments.

This Opinion

supports the December 20,

1984 Order~

Statutory Provisions

The RCRA rules ar~sefrom the federal Resource Conserva-

tion and Recovery Act

1976

(42

U.S.C.

Section 6901 et

seq.)

(RCRA Act).

USEPA

adcc~:edregulations pursuant

to the RCRA

Act starting on May 26~ 1980.

These are now found

in 40 CFR

260,

261,

262,

263,

26:~,

265 and 270.

The RCRA

Act

contem-

plates that states shothd

he delegated primacy.

Requirements

for primacy are found

in

40 CFR 123 and 271,

The General Assembly

authorized Illinois to apply

for

RCRA “primacy” in P,A.

82~38O.

1mpo~tant

provisions

include

the following provisions

of

the

Act:

Section

4(1)

Designating

IEPA

as

“solid waste

agency”

20(a) (B) Finding that

a

separate

state

program should

be

avoided

21(f)

Requiring RCRA permits

for

hazardous

waste

treatment, storage and disposal

(TSD)

operations

22.4(a)

Authorizing

adoption

of

‘identical

in

substance”

requlations

by

abbreviated

procedures

39

(d)

Authorizing

IEPA

to

issue

RCRA

permits

40(b)

Authorizing

third

party

appeals

to

the

Board

of

issuance

of

3CRA

permits

for

hazardous

waste

disposal

sites

In

P.A.

84—431

the

General

Assembly

amended

Sections

38(c)

and

40(a)

(3)

to

extend

the

Board~s

decision

period

in

RCRA

variances

and

permit

appeals

to

~L20 days,

and

to

provide

for

mandamus—type

action

by

the

Ap~e.L:Late Court

if

the

Board

failed

to

act.

This

rulemaking

is

pursuant

‘to

authority

contained

in

Section

22.4(a)

of

the

Act

as

well

as

Section

26,

which

provides

for

adoption

of

Board

procedural

rules.

Section

1Environmental

Protection

Act,

Ill.

Rev.

Stat.

1983,

ch.

111½,

pars. 1001

etieq.

62~350

---

22.4(a)

exempts

this rulemaking from the normal notice and

comment

procedures

of the Illinois Administrative Procedure

Act

(APA),

including

second notice review

by

JCAR,

However,

the Board has followed

normal APA rulemaking procedures

in

order that it may have

the benefit of

comment

from the

public and JCAR.

Prior

Regulatory

Actions

The

Board

has

completed

several

rulemakings

to

implement

the

RCRA

program

in

Illinois.

The

Phase

I

rules

included

Parts

720

through

723

and

725,

These

defined

“hazardous

waste”

and

established

standards

and

reporting

requirements

for

generators

and

transporters

of’

hazardous

waste,

The

Phase

I

rules

also

established

notif:Lcation

requirements

and

interim

status

operating

standards

for

hazardous

waste

treatment,

storage

and

disposal

(TSD)

facilities.

The

Phase

I rules were

adopted and amended as

follows:

RBl—22,

45 PCB 317, February 4,

1982,

5 111.

Reg.

4828,

April

23,

1982

R82—18,

51

PCB

31,

January

13,

1983,

7

111.

Reg.

2518,

March

4,

1983

Illinois

received

Phase

I interim authorization

from

USEPA

on

May

17,

1982

(47

Fed.

Reg.

21043),

The

Phase

II rules included adoption and amendment of

Parts 702,

703,

705 and 724,

These established

a RCRA

permit program,

provided

procedures

for

review

of permits by

the Agency

and provided final Permitting standards for TSD

units.

The

Phase

II

rules

have

been

adopted and amended,

but

authorization

has

not

been

received,

The

rulemakings

were

as

follows:

R82—l9,

53 PCB 31, July 26, 1983,

7

Ill.

Reg.

13999,

October 28,

1983

R83—24,

55

PCB 31, December

15,

1983,

8

Iii,

Reg.

200,

January

6,

1984

On September

6,

1984 the Third District Appellate

Court

upheld the Board’s

actions

in

adopting

R82~~19and

R83—24

(Commonwealth Edison

et

al,

v,

IPCB).

Finally,

the Board

notes

that

is

has

opened R84-9 for the

purpose of updating

the

RCR~ rules

to

conform

with

amendments

to the federal

RCR~ rules.

A

proposal

was’

filed

by IEPA on

December 26, 1984.

---

Comments

A detailed discussion of

the

First

Notice

comments

appears

below.

Some of

the

comments,

particularly

those

of

IEPA and

USEPA, raise broad issues,

IEPA’s comment

suggested

that

the

procedures

could

be

greatly simplified,

especially

those

involving

enforcement

actions.

In its

final

comment

USEPA

objected

to

some

aspects

of IEPA~scomments,

expressing

a

preference

for

the Board~s

proposal.

After

considering

IEPA’s

comment

and

USEPA’s

final

comment,

the

Board

has

determined

to

adopt

the

pro~

posal

in essentially

the

same

form

as

proposed.

The

follow-

ing is a discussion

of

the

fundamental

questions

raised

by

these comments,

A

RCRA

issue

can

come

before

the

Board

in

four

ways:

1.

Regulatory

proposal

2.

Enforcement

action

3.

Variance

petition

4.

Permit appeal

Regulatory proposals are governed by Title VII of the

Act and Part 102.

In addition, there are specific

procedural

requirements

in Section 22,4 of the Act, depending on

whether

the proposal

is

“identical

in

substance”

with

amendments

to

federal

regulations.

Regulatory

proposals may be either amendments to the

general

rules

or proposals more site~specificin nature,

The

TSD standards include provisions which specify site~

specific

rulemaking as a mechanism for obtaining relief

which

would be referred to as

“variance” under the federal

rules.

For example, see Section 724,401(b),

Enforcement actions may be brought pursuant to Title

VIII of the Act and Part 103.

The complainant may be the

Attorney General, representing the IEPA or acting in his own

name.

The

complainant

could

also

be

a

State’s

Attorney

or

a private

citizen,

Types

of

enforcement

actions

which

might

involve

the

RCRA rules

would

include

allegations

of

operation

without

a

required RCRA

permit,

operation

in

violation

of

the

Act

or

RCRA rules, or

operation

in

violation

of

RCRA

permit

conditions.

A complainant

could

request

that

a

respondent

be

ordered

to

apply for a permit,

to

cease

and

desist

from

violating

the

rules,

to cease

conducting

regulated

activities,

or

that

a

RCRA

permit

be

revoked.

---

Variance petitions are

governed

by

Title

IX of the Act

and Part 104.

Board variances

are

temporary,

are granted on

a showing

of arbitrary

or

unreasonable

hardship and require

a

compliance

plan.

These are

to

be distinguished from

“variances” provided

in

USEPA’s

RCRA

rules

which

sometimes

are permanent on a

specific

showing

other

than arbitrary or

unreasonable

hardship.

In

adopting

the

RCRA

rules

the

Board

has identified

potential problem areas and

indicated

whether

relief requires

the

filing

of

a

variance

petition.

In

other

cases, either

a

site—specific

rule

is

required,

or a permit

modification application

addressed

to

the

Agency.

Permit appeals

are

governed by Title X

of

the

Act

and

Part 105.

The Agency will have followed the Part 705 proce-

dures in issuing or denying the permit.

The Board therefore

sees no need to

adopt

special

procedures

for

RCRA

permit

appeals.

Regarding appeals

of

the

issuance

or

denial

of

RCRA

permits, the

question

before

the

Board

is

whether

the IEPA

correctly issued or

denied

the

permit

based

on the facts

which

were

before

it

at the

time

it

acted,

Sections

21(f)

and

39(d)

of

the Act require

RCRA

permit

issuance

upon

a

showing

of

compliance

with the Act and Board

rules,

These

same limitations

apply to the Board when it

reviews the

Agency’ s actions.

Although a

variance or site~specificrule

could

be

granted by the

Board subsequent to an appeal

if

the appli-

cable

procedures

were

followed,

the

Board~s subsequent

granting of a

variance

or

site~specific

rule

would

not

affect the question of

whether

the

Agency

was

correct as of

the date of

issuance

or

denial,

based

on

the

information

before it.

The

variance

or

site~specific

rule

could be

incorporated

into

a

permit

only

pursuant

to

a

subsequent

application to the Agency to modify the permit,

MOA

As a part of the RCRA authorization process, USEPA and

IEPA

will sign a memorandum of agreement

(MOA),

This

is

authorized

by

Section 4(1) of the Act.

There is no comparable

specific

provision authorizing the Board to sign such an

agreement.

Title

VII

and

Section

22.4

of

the

Act

specify

the

procedures which the Board

is to follow in

adopting or amending

regulations which

will

bind

future

Boards,

unless and until

such regulations

are subsequently amended pursuant to the

applicable procedures.

Enforcement

Within

the

Permit

System

The

TSD

facility

standards

of

Part

724

provide a detailed

set

of

operating

standards.

Among

other

things,

TSD owners or

---

operators

are

required

to

provide

groundwater

protection

and

financial

assurance

of

closure

and

pasthclosure

care

(Sections

724.190 et seq. and

Sections 724.240

at

seq.)

Enforcement

against

a

facility

in

violation

of

the

RCRA

rules could

proceed by

two

different routes:

a

RCPJ~

permit could be

issued or modified reflecting

the

result

of the enforcement

action;

or,

the

RCRII

permit

could

be

revoked,

with any

necessary remedial

action

to

he

dealt

with

in

a

Board Order.

Section

33 of

the Act authorizes

the Board, among other

things,

to revoke a

~ermit

and

issue

a cease and desist

order,

It also

pre

~‘Ies

for

the

posting

of a performance

bond if a reasonahi

‘

1aiay

is

included

in

which to correct a

violation.

It is tIns

clear

that

the

Board

could,

by its

order, bring about

fcc:.lity

closure

or

compliance even in

the absence of a RChI

cermit,

The

Board

retains the option

of revoking a

permit

red.

proceeding

with

direct Board supervision

of

a site under

appr~:”:ciatecircumstances,

However,

in

those circumstances

which,

:Eor example,

specifics of the

closure and post-c:Losure

care

p:ians and

financial assurance

are contained in the

permit,

enforcement may

result in

issuance or modification

of the RCRA

permit

spelling out a

compliance or closure

plan based on the general RCRA

operating

rules as specifically

modified, with the

RCRA financial

assurance mechanisms

available to secure

closure and post—

closure care,

and with

federal oversight

and all possible

sanctions in place.

RCRA

Permit

Procedures

Part

705

specif:Les

the

procedures

which

IEPA

must

follow

in

issuing

or

denying

a

RCRZ\

permit.

The procedures

include

the

followinq~

1.

Public

notice

of

the

applIcation

2.

A

tentative

decision

by

‘the

Agency

3,

Public

comment

~nd

the

opycrtunity

for

a

hearing

subsequent to

the.

tentatire

decisi

n,

These

procedures

differ

from

the

contethed

case

provisions

of the Illinois

Administrative

Procedure

Act.

(APA)

in

that

the

Agency

reaches

a

tentative

decision

prior

to

the

hearing.

This

would

not

be

possible

under

the

contested

case

provisions

since

there

would

be

no

record

on

which

the

Agency

could

base

its

decision

prior

to

the

hearing.

The

hearing

mandated by

federal

regulations

is

a

public

participation

hearing

in

which

the

Agency

presents

its

tentative

decision

to

the

public

for

comment.

Section 3006

of

the

Federar

RCRA

Act

and

USEPA

regulations

require

Illinois

to

utilize

this

type

of

hearing.

USEPA

has

indicated

in

its

comments

that

this

:Ls

an

essential

feature

62~~354

---

of the federal system

which

the

State

must

employ to obtain

final

authorization.

The

Illinois

Supreme

Court

held,

in

reviewing a non-

RCRA

permit,

that

the

public

was

entitled

to a contested

case

hearing

before

the

Agency

issued

a

permit

for

a hazardous

waste

disposal

site,

~

ne~rProce~in

v,IEPA,

464

N.E.

2d

238

(1984).

‘However,

the

statute

(see

1979

Ill.

Rev,

Stat.

ch.

111½, former

Section

1039(c))

which

allowed

third

party

participation

in

hazardous waste

permit

issuance

bas

been

repealed; Section

39,

3

of

the

Act

i~

inapplicable

to

RCRA

permits

(see

Section

39,3(h)

of

the

cutrent

Act),

The right

to public

participation

before

the

Agency

in

issuance of a

RCRA

permit

is

that required by federal

regulations, and

those very regulations

specify a public

participation-type

hearing.

The Board

notes

that

Section

705,212 allows appeal

to the Board of

any Agency action by persons

who have filed

comments or

participated before the Agency;

Section 40(b)

of

the Act allows

third party appeal of Agency

issuance of a

hazardous waste

disposal permit, regardless

of prior partici-

pation before

the Agency.

Sections 20(a)(5)

et

seq..’.and

22,4(a)

of the Act

require

the

Board

to

adopt

regulations to

obtain authorization

in

the

RCRA

program

which are identical

in substance to

the federal

RCRA

regulations.

‘The Board

holds

that.,

to the

extent the APA may

require a contested

case hearing, the

legislature intended to

except the

RCRA

permit issuance

procedures

before

the

Agency from contested

case

provisions

of

the

APA,

However,

to

the

extent

possible,

the Board has

attempted

to accommodate the

APA and prior

procedures.

I’EPA has the

exclusive

authority

to

issue RCRA permits.

It

must

follow

these

procedures

under

federal

and state law.

Moreover,

if the

Board’s

decision

in

an

enforcement action

or variance

petition

controls

the

substance

of

a

permit,

it

will

follow

the

same

procedures

so

that

the

public would

have a right to participation in the Board~s

decision in

a

manner

consistent

with

that

allowed

under

federal

law,

The

NPDES

permit

system

(Section

12(f)

of the Act and

Part

309.)

is

an

imperfect

model

for

the

RCB~

permit

system:

The

Board

has

never

adopted

“identical

in

substance”

regula-

tions

based

on

federal

effluent

standards

found

in 40 CFR

Part

400

et

seq.

Rather

the

IEPA

considers

the

Board’s

rules along with USEPA’s rules in issuing the

NPDES permit,

basing each

condition on the more stringent

regulation

(Peabody Coal v,

IEPA,

PCB

78~296,

38

PCB

131,

May

1,

1980).

~

apply to IEPA or USEPA

for relief from

the USEPA

standard.

Having never adopted

the ‘USEPA effluent

standards,

the

Board lacks subject matter

jurisdiction to

amend them or

grant

a

variance from them,

62~355

---

On the other

hand, Section 22,4(a)

of

the Act required

the Board to actually adopt

RCRA

regulations

which are

“identical in substance” to

USEPA

regulations.

The

Board

has subject matter jurisdiction to amend these rules, or to

grant variances from them,

The proposal requires joinder

of the

Agency in all

cases with potential

RCRA

involvement so as to assure that

the Board will have the benefit of the Agency~sexpertise

and experience with

the

general rules before the Board

reaches a decision.

This

process avoids any unintended

inconsistencies under

RCRA.

Relationship to Agency Permit Issuance

Following a Board decision,

if necessary IEPA is

to

decision,

For interim

status

facilities

the

RCRA

permit issuance

process is initiated

with a request by

IEPA that the facility

file a Part B application

(Section 703,180(a)).

The Agency’s

review of

a Part B application is expected to take a signifi-

cant amount of manpower.

The Board does not intend that the

variance procedure should be utilized to force a premature

review of a Part B application.

Unless the Board were to

specifically hold otherwise,

an interim status facility with

a

variance

would join the queue for permit action.

IEPA is expected to evaluate

any

case with RCRA impli-

cations to ascertain whether an enforcement settlement or

variance petition is consistent with the overall program

and acceptable to USEPA,

It

must

make

any problems known to

the Board in advance

of

any decision,

The

Board then will

have the benefit of

IEPA’s evaluation

before the decision.

The Board will follow

notice and comment

procedures comparable

to those used by

USEPA.

The alternative

enforcement

procedure

suggested by IEPA

would allow for

the possibility that a

private citizen could

settle an enforcement

action

against

a

RCRA

permittee in a

manner inconsistent

with

the

requirements

of the general

rules.

The proposal

has

been

carefully

drawn

to assure IEPA

input prior to the

actual

decision

which

governs the permit~

How

to

Get

on

the

RCR~

Track

The regulations

establish special

procedures which must

be followed in cases

with RCRA involvement,

A

case has

to

be flagged to assure

that the special

procedures are followed.

This should be easy

in

most cases,

However,

the RCRA involve-

62~356

---

decision.

For example,

a water or air

case might reach a

settlement which could involve

disposal

of a hazardous

wastewater treatment plant sludge, or incineration of a

hazardous waste.

The proposal attempted to provide for a Board

determina-

tion early in a proceeding as to whether a case belonged on

the RCRA track.

The

JCAR

preliminary

review

questions

focused on the need for standards

for

the Board to apply.

It

would be difficult to write such standards when the problem

would only arise

urior to the

time the

Board has dealt

with the merits o~:the case and where the resolution can

occur

only

after

bring

addressed

at

hearing.

Chemical Waste

Management suggested moving the

decision

to the back of the

process as a part

of

the Board’s

final

determination.

This

approach will be followed.

The modified rules, which are discussed below, state

the petitioner’s or complainant’s

duty

to label the case and

keep it on the right procedural

track,

If in the final

evaluation the Board

decides that the

case came to it with

the wrong procedures, the Board

will

send the case back with

instructions to remedy the deficiencies,

A variance petition

will he deemed deficient for failure to properly label it

and invoke the correct procedures.

This will require an

amended petition which will restart the decision clock.

Section. 101.123’

Proposal of

RCRA

Miendments

This Part

applies

both

to

general

amendments and to site-

specific amendments

to

the RCRA rules.

Sections 720.120-720.122

lead into these provisions.

The TSP standards also specify

site-specific rulemaking as one

mechanism

for adjusting general

standards

(for

example, Section 724,401(b)),

Paragraph

(b)

(1)

requires the proponent

to specify the

procedural provision

of Section 22.4 of

the Act under which he

wishes to proceed.

The proponent must

also provide a listing

of all amendments

to the corresponding

federal regulations

since the last Board

updating.

This will

assure that the

Board has the current

federal provisions

for comparison.

The proponent

is required to mail

to USEPA.

Section 102.124

Notice of Site~specif±c

RCRA Proposals

This section

establishes specialized

public notice

procedures to be

followed in site~specific

proposals.

General program

amendments will not i-~ave

to follow these

requirements

*

62~357

---

The public

comment

period

will

usually

be set by the

Hearing Officer

following

the

completion

of

the

hearings

(Sectio~i102.163)

and

by

the

Board

following

publication in

the Illinois

Register.

In response

to

JCAR

staff

comments

the

Board has

specified

that only certain

paragraphs

need

to

be

addressed in radio

notices.

Paragraph

(d)

(4)

has

been

added,

and two paragraphs

dropped, after a

review of the provisions

of 40

CFR 124.10.

Section 102.202

Adoption of RCRA Amendments

The Board

will

proceed

at

a

minimum

with notice and

written connuent

prior

t:o

adopting

amendments

to the RCRA

rules.

This will

be

the

case

even

if

the

proposal is “identi-

cal in substance”

with

federal

provisions

pursuant to

Section

22.4(a) of the

Act~

40 CFR 271.19

provides

for

USEPA

comments

on

permit

applications and

draft

permits,

The

Board

construes this to

include regulatory

proposals,

enforcement

orders

and

variance

petitions which

may

result

in

issuance

or

modification’of a

RCRA

permit.

The

Board

will

issue

an

Opinion

in

all

such

cases

as

required

by

the

Act

(Sections

27(b),

33(a),

35(a)).

The

Board’s

Opinion

will

meet

or

refute

USEPA’~

concerns

as

required

by

40

CFR

271.19(d),

Sectioi~

103.260

Purpose,

Scope

and

Applicability

The

enforcement

procedures

ceiiter

on

enforcement

against

a facility with a

RCRPt permit for violation

of the RCRA

rules or: permit

conditions,

If the Board found

it necessary

it

would order a

compliance schedule leading

either to

closure of the

facility or to compliance by the

facility.

The rules

contemplate

Agency

and

public

participation

in

establishment

of the compliance schedule, and

modification

of

the

RCRA

permit

to

reflect

the

complIance

schedule.

Whether

an

enforcement

action

involves

the

issuance or

modification

of

a

RCRA

permit

sl.ould

be

faiily

obvious

Sectipn

1Q3..261(a)

allows

any

party

to

•ask

the

Board to

invoke the

special

procedure.s,

i.f

the

case

~comes

before

the

Board

for decision and the Board determines

that the case

may involve

the issuance or modification of a

RCRA permit,

the

Board

will

enter

an

interim

order

invoking

the

special

procedures.

If

it

later

appears

that

the

case can

be

decided

without

ordering

the

issuance

or

modification

of a RCRA

permit, the Board

will

terminate

the

special

procedures and

decide the case

(Section

103,263(d)),

---

—ll~

Enforcement

actions which involve issuance

or modifi-

cation of

a RCRA permit include those in

which, to grant

complete relief,

it appears that the

Board will have to:

revoke the permit; order a permit

issued

or

modified; order

actions different from those

required

by

the general regu-

lations; or, order closure or

modification

of a facility

operating

without

a

required RCRA

permit.

The special pro-

cedures apply when there

is a potential

for RCRA involvement:

following the notice

and comment procedures

the Board may deter-

mine that there is in fact no need to involve a RCRA permit,

Section 103.261

Interim

Order

The special

procedures are

invoked

by

entry

of

an

interim

order

on

motion of a party,

or on

the Board’s own

motion.

It

is expected

that the parties

will usually advise

the Board through a

motion

when it

is

time

to start the

special procedures.

If

not, Sections 103.180

and 103.268

require the Board to

invoke the

procedures

before deciding

the case.

Section lQ3.26l(b)

(1)

requires

a finding or proposed

finding of violation

and

a

penalty or

proposed penalty in

the interim order.

The special procedures center on develop-

ment of a compliance schedule after the question has been

settled as to whether a violation

exists

and what penalty is

appropriate.

In a

fully

contested

case

this finding would

be based on full public

hearings

pursuant

to Section 103.203.

The respondent could

also

admit or

stipulate

to the violation

and penalty.

The interim order

will

provide for joinder of the

Agency if it is not a

party, and for

a

time

schedule for

preparation of a

partial draft permit.

Section 103,263

Draft Permit or Statement

In the Ume

provided in the interim

order, the Agency

must file a partial

draft permit or

a

statement

that no

permit need be

issued or modified,

If no time

is specified,

the Agency must file

the draft permit within

60 days.

This

is avoided if the

parties,

including the

Agency,

enter into

a stipulated remedy

within the specified

time frame.

The

proposal included a

specific

provision

recognizing the Board’s

authority to adjust

the 60-~’daytime frame.

JCAR objected

to this provision,

and the Board

has

dropped

it from the

rules.

However,

the

Board

always

has

authority to adjust

its own procedural rules in a specific case with notice to

all parties.

The Agency is to

prepare a partial draft

permit inclu-

ding such conditions

as

it finds

are

necessary

to áôrrect

the violations

found

in

the interim order,

The partial

62~359

---

—l2~

draft

permit should

in

effect be a detailed

plan which the

Agency

believes

will

correct

the violations,

This would

ordinarily be

a part of the

Agency’s case

if it were the

complainant in an enforcement

action.

The

requirement of a

finding

of

violation

in

the

interim order

will make more

definite

the

compliance

plan

which the

Agency

must

prepare,

and protect the Agency from having

to

prepare a compliance

plan in what may be an unfounded

citizen

suit.

The Agency has asked that

the

respondent be required

to

file an application.

This would

be

unworkable in a fully

contested case.

If ant oarty

wants to

initiate the applica-

tion process,

it is not precluded

from

requesting that the

interim order be so

worded.

If the Agency

issues

a statement that no RCPA permit

needs to be issued or

modified, the

Board will decide the

case without following the special notice, comment and

hearing procedures.

The

Board wiLl assume that any order it

enters

can be implemented consistent

with RCRA

program.

Section 103.264

Stipulated

Draft Remedy

A stipulated draft remedy must

be

signed by all of the

parties,

including the Agency.

If one is filed, the Agency

need

not prepare a separate draft permit or statement under

Section 103.263, although one or

the

other would he included

with

the stipulated rei~edy.

The rules are drafted on

the assumption

that the Agency

is

not

a party in the early stages of

the

enforcement action

and that the RCRA involvement is speculative,

If the Agency

is

a party, and the parties

are

ready

to

stipulate to a

settlement which clearly involves a

RCRA

permit,

all of the

intermediate steps can be

rolled into one,

The parties can

stipulate to a violation,

a

penalty

arid

a remedy in one

document, file

it with

the Board and request

an interim

order leading immediately

to the public comment

period and a

public hearing.

The draft remedy

itself must include the

mandatory

orders the Board is to

enter,

plus the draft

permit or

statement by the Agency.

The

Agency’

can

stipulate to

‘a

certain form of order to

be entered at the

same

time

that

it

makes

its

statement

that

no permit modification

is necessary.

A listing of types of

mandatory

orders

has been included

as a guide to persons preparing

these

stipulations.

Some

of

these

are interrelated,

For

example,

if

a

permit is to be

revoked,

the

stipulation

should

be

specific

as to the steps

to be

taken to close the facility

in

the

absence of a permit,

and as to whether any financial

assurance

pursuant to the

permit is released,

continued or

to

be

applied

to the closure,

62~360

---

—13—

The

stipulation

must

be

signed and

available

to

the

public

before notice is given

pursuant to

Section 103.265.

Section

103.265

ContentS of

Public Notice

The

Agency must give public

notice of

any draft permit,

whether

it is part of a stipulated

reme~y

or not.

No special

notice is required

if the Agency

determines

that no permit

modification~

is required.

Instead,

the

regular notice and

hearing procedures

of

Section 103.180 are

to be followed.

Section

103.265(b)

specifies

various

persons who are to

get notice.

This is drawn from

40 CFR 124,10(c),

with the

appropriate

State agencies

inserted

instead

of the descrip-

tions

found in the federal rules,

In

respons~to JCAR staff

comments the

Board has specified

that

only

certain paragraphs need

to be

addressed in radio

notices.

One subparagraph has

been dropped

from paragraph

(d)

after

a

review of 40 CFR 124.10.

Section

103.266

Public Comment

Forty-five

days will be allowed

for

written public

comment

after

the

partial

draft

permit has

been filed.

The

Board

will

consider this written

public

comment,

including

that

of

USEPA., in entering its

final Order

and Opinion.

Section

103,267

Hearing

There

will be at least 30

days

notice

of

the

hearing.

The

partial

draft permit or stipulated

remedy

will have to

be

~railable

to the public for

at least 30

days

before

the

hearing

also,

Section

103.268

Contents of

Board

Order

The

Board will not enter

an

order

which

would

require

the issuance

or modification of a

RCRA permit

unless the

special

procedures have been

followed,

If

necessary,

the

Board will

enter an interim order

invoking,

or reinvoking,

the special

procedu~~es.

If

the

Board determines

that

it

must

order the issuance

or modification of a RCRA permit,

it will

so direct, either

in specific terms

or

through

general guidelines.

If the

order

specifies

a

compliance

schedule leading

either to

upgrading

or closing the facility,

the Board

will require

compliance

as

soon

as possible

(40 CFR 270,33).

JCAR

objected that paragraph

Cc) (2)

did

not follow

Section

33(b)

closely enough.

The

Board

has

modified the

language

to track the statutory

language

more

closely.

62~361

---

—14—

Section 104,104

RCRA

Variances

Paragraph

(a)

contains the

definition

which fixes

the

scope

of

the

RCRA

variance procedures:

a “petition for a

RCRA

variances!

is one which

requests a variance from the

RCRA

rules

or

which requests that

the Board otherwise

order

temporary

issuance

or

modification

of

a

RC~.~~permit.

The

procedures

of this Part

are

center~ed~

on~variances

which

would

result

in

issuance

of

~a’

~RCRA

permit ‘with condi-

tions

which

would be different than

those

required by the

general

rules,

The petitioner would TeqUe’st~

a variance from

the

underlying

Board rule, and

ask

that

the’

Agency

be

directed

to

issue

or

modify

the

permit based’

on’the

variance.

The

specialized

RCRA

procedures also

apply

if the peti-

tioner

requests

a

variance

from

the

‘RCHA’

rules

not involving

a

permit.

This

includes requests for variances from the

interim

status

requirements of Part

725~,

‘and’ requests for

variances

by

generators and transporters.

‘The federal rules

allow

general

variances through

the compliance schedule

procedures

of 40 CFR

270.33.

These

are

available only to

persons

with

RCRA

permits.

In co~-sideringvariances for

persons

without

permits, the

Board

‘will

‘utilize procedures

which

are

analogous

to

the

federal

compliance

Schedule

procedures.

Paragraph

(b) contains several cross-references intended

to

are

persons

unfamiliar with the Board’rules.

There are

sever.

I

federal

procedures which

are

called

federal

“variances”

which,

unlike

the

variances allowed

under

the Act, involve

rn”.~ront

adjustment

of the general

rules

on a showing other

.~ui~trary

or

unreasonable

hardship,

(For example,

cosu.~~rre

40

CFR

264.147(c)

with

35

Ill,

Adm,

Code 724.247(c)),

There

are

also

federal

procedures

which,

although not denomi-

naLe~das

such,

could

be

described

as

“variances”

as the term

is

used

outside

Illinois.

(For

example,

compare 40 CFR

264,94(b)’

and

35 Ill.

Adm, Code

724,194(b)),

In adopting

the

RCRA

rules

the

Board

has

attempted

to

identify the

federal

provisions

which

could

cause confusion.

An Appellate

Cour~’chas

upheld

the Board~s

decision

ot” several of these

provisions

(Commonwealth Edison

v,

IPCB),

These substantive

rules

indicate

which pr6cedures

aré~~be

followed to obtain

adjustment

of the

permit condition,

The

Board

anticipates that

there

will

be many multi-

state

firms

which will use the federal~egulationsas their

primary

source

instead of the compatable Boà~d~regulations,

Section 104,104(b)

is a cross

reference intended

to alert

persons before

they invest the

effort involved

in preparing

an unnecess8~ry

variance petition.

‘‘ThiSSëctiôn

is not

intended

as a

comprehensive statemei4t~as”to”when a variance

is

required.

62-362

---

—15—

SectiOn

104.122

Consistency

with Fede~.a1

Law

Paragraph

(e)

is

derived from

Section

35 of the Act.

It

requires a person seeking

a RCRA variance

to prepare an

analysis

of. federal law,

and to:plead sufficient facts to

show

that the petitioner

is

entitled

.to

the

requested relief

pursuant

to federal law.

Section

104.126

RCRA

Variances:

Additional Material

Paragraph

(a)

requires the

petitioner

to label a RCRA

variance as such.

This will allow

the

Board to’place the

petition on the correct procedural

track,

If:it.appears

that

a petition has not been properly labeled, the Board may

dismiss

it or require an amended

petition.

This will restart

the

decision clock,

affording time

for the

Board to follow

the

correct procedures.

Paragraphs

(b) and

(c)

require

the

petitioner

for a

permit-related variance, to file an application to modify the

permit

in advance of

the

petition.

The

relevant portion of

the

application must be attached.

Paragraph

(d)

requires. proof of

service

on

USEPA

as

a

condition

for the sufficiency of th’e’petition.

The filing

date

will

be

delayed if the proof is filed

after

the date

the

main body of

the

petition is filed (Section 104.142(a)),

USEPA

requires that it be notified

of

variance

petitions.

The

Board has placed this burden on

the

variance petitioner

who

has invoked

its

jurisdiction

to

obtain

relief

from

a

general

rule.

Section

104.141

Objections to

Petition

Section 37(a) of the Act requires a hearing on a

variance

petition

if any person

files

a written

“objection”

within

21

days.

This procedure

is unnecessary

because

the

Board

has required hearings on all

RCRA

variance petitions.

Section

104.142

RCRA

Variances:

Notice of

Filing of

Petition

40 CFR 124.10

requires notice

to be given to various

types

of agencies and persons.

The Board

has designated

certain

State agencies which appear

to

have responsibility

in the areas

indicated in the

federal rules,

USEPA’will

designate. federal agencies entitled

to

notice through the

MOA or other arrangement with the

Agency,

If the facility

is located

near the

‘Illinois border,

the

Agency is to give notice to the Governor of ‘the adjacent

state,

to elected officials in any

adjacent

counties, and

82-363

---

—16—

to

elected officials

in any municipality if it

is the closest

population

center.

In response to JCAR staff comments the Board has specified

that;

only

certain

items need to be addressed in radio notices.

Two

subparagraphs have been dropped from paragraph

(e)

after

a

review

Section 104.182

RCRA Variances:

Additional Information

in Recommendation

The

Agency must

f:iie

the recommendation within

30 days

after

the

petition

is

filed.

The recommendation will serve

the

purpose of the partial draft permit and tentative deci-

sion in the federal scheme.

The Agency will include a fact

sheet,

statement of basis, draft permit conditions and/or

a

notice of intent to

deny,

insofar

as

is relevant to the

variance

request.

Section 104.183

RCRA Variances:

Public Comment

There will be a

45 day period for written comment after

the

recommendation is filed.

Persons may comment on the

petition

and

on

the Agency’s recommendation.

The public

hearing

will usually be held during the last 15 days of the

written

comment period.

Section

104.200

Notice of Hearing

The

hearing officer is to give notice of

a hearing to

he held

not

less than 30 days after the filing, or anticipated

fi1~ig,

of the recommendation.

Notice is to be given to the

people

who

received

notice

of

filing

of

the

petition,

plus

any

other

persons

who

comment

or request notice.

The hearing

is

to

be held in the County in

which

the

facility

is

located,

in

the

population

center

closest to the facility.

Section 104.221

RCRA

Variances:

Board Decision

The

Board will not grant a RCRA variance unless the

RCRA

procedures have been followed.

The procedures are

invoked

when

the petitioner labels the petition pursuant to

Sectio:n 104.126.

The

decision period will be restarted if

the

petitioner failed to properly label the petition.

Paragraph

Cc) provides that variances will be granted

Ofli~

to

the extent consistent with the RCRA Act and its

rules.

Where the federal. provisions provide a variance

mechanism,

it will be necessary to identify the mechanism

and allege sufficient facts to show that the relief

is

available

(Section

104.122(e)).

The general federal mechanism

62-364

---

—17—

(40

CFR

270.33).

Variances analogous to compliance schedules

must require

compliance with the general regu~ations in

t~’1e

shortest possible time.

The Board’s Order may direct the Agency to issue or

modify a

RCRA permit.

The Board may set forth a specific

set of

conditions to be incorporated into the permit, or it

may

provide general guidelines.

This Opinion supports the Board’s Final Order of December 20,

1984.

Board Member Bill Forcade concurred.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution

Control Board, hereby certify

hat the above Opinion was

adopted on the

~‘~‘

day of

_______________,

1985 by a vote

of

OO’~L~

~

Doi~o’?1~’

M.f~unn,Clerk

Illinois Pollution Control Board

82-365