ILLINOIS

POLLUTION

CONTROL

BOARD

November

8,

1984

IN

THE

MATTER

OF:

)

)

R84—10

RCRA

AND

UIC

PROCEDURAL

RULES

)

PROPOSED

RULE

•

SECOND

NOTICE

PROPOSED

OPINION

OF

TUE

BOARD

(by

S.

Anderson):

This

Opinion

aipports

the

Board’ a

Second

Notice

Order

of

November

8,

1984.

On

March

21,

1984,

in

anticipation

of

final

‘Phase

II’

RCRA

authorization,

the

Board

opened

this

docket

for

the

par-

pose

1f

adopting

procedural

public

notice

and

participation

rules

to

be

followed

in

cases

arising

piratant

to

the

RCRA

and

UIC

rules.

Since

the

Board

discerns

no

necessity

for

specialized

UXC

procedures,

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.

Reg.

9888,

June

29,

1984.

The

Board

received

the

following

public

consents:

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

Waste

Management,

August

14,

1984

5.

USEPA,

August

24,

1984

On

July

6,

1984

the

Board

reqiested

preliminary

review

from

the

Joint

Committee

on

Administrative

tiles

(SCAR).

Preliminary

review

giestions

on

35

Ill.

Ada.

Code

103

and

1042

were

received

July

20,

1984.

On

July

13,

1984

the

Board

received

codification

comments

from

the

Administrative

Code

Unit.

Statutory

Provisions

The

RCRA rules

arise

from

the

federal

Resource

Conserva-

tion

and

Recovery

Act

of

1976

(42

U.S.C.

56901

et

seq.)

(RCRA

Act).

USEPA

adopted

regulations

parsiant

to

the

RCRA

Act

starting

on

May

26,

1980.

These

are

now

found

in

40

CFR

260,

261,

262,

263,

264,

265

and

270.

The

RCRA

Act

contemplates

that

¼.

used

in

this

Opinion,

the

term

‘rules’

is

intended

to

beinterchangeable

with

‘regulations’.

eUnless

otherwise

indicated,

all

references

to

‘Sections’

or

‘Parts’

are

to

Illinois

Administrative

Code,

Title

61-109

---

—2—

states should be 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—380.

Imp9tant provisions include

the following provisions of the Act;

§4(1)

Designating IEPA as “solid waste agency”

S20(a)(8) Finding that a separate

state program should

be avoided

§21(f)

Requiring RCRA permits for hazardous waste

tre~tment, storage and disposal

(TSD)

operations

§22.4(a)

Authorizing adoption of

“identical

in

substance”

regulations by abbreviated procedures

§39(d)

Authorizing IEPA to issue RCRA permits

§40(b)

Authorizing

third party appeals to the Board

of issuance of RCRA 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 120 days,

and to provide

for mandamus-type action by the Appellate Court

if the Board

fails to

act.,

This rulemaking is pirsuant 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 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

rulemakinys

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 notification requirements and

interim status operating standards

for hazardous waste

1Environmental Protection Act,

Ill.

Rev. Stat.

1983,

ch.

111 1/2,

pars.

1001 et seq.

61-110

---

—3—

treatment,

storage

and disposal

(TSD)

facilities.

The

Phase

I rules were adopted and amended as follows.

R81—22,

45 PCB 317, February

4,

1982,

6

Ill.

Reg.

4828,

April

23,

1982

R82—l8,

51 PCB 31, January 13,

1983,

7

Ill.

Reg.

2518,

March

4,

1983

Illinois received Phase

I interim authorization from

JSEPA on May 17,

1982

(47 Fed.

Req.

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—19,

53 PCB

31,

July 26,

1983,

7

Ill.

Reg.

13999,

October 28,

1983

R83—24,

55

PCB 31, December 15,

1983,

8

Ill.

Req.

200,

January

6,

1984

On September

6,

1984 the Third District Appellate Court

upheld the Board’s actions in adopting R82-l9

and R83-24

(Commonwealth Edison et al.

v.

IPCB).

Finally,

the Board notes that

is has opened R84—9

for the

purpose of updating the RCRA rules

to conform with amendments

to

the

federal RCRA rules.

The Board

is awaiting

a proposal to

be

filed by IEPA.

Comments

A detailed discussion

of the First Notice comments

appears

below.

Some

of

the comments, particularly those of IEPA and

tJSEPA, raise broad

issues.

IEPAts 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’s comments, 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.

61-111

---

Procedural Context

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-specific

in 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

§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 ~n

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 identifled 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 fol1ow~dth~

Part

705

pr~”~•

dures

in issuing or denying the permit.

The

Board

therefore

sees no need to

adopt

special procedures

for RCRA permit

appeals.

61-112

---

—5—

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-specific rule 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 §4(1)

of the Act.

There is no comparable

specific provision authorizing the Board to sign such an

agreement.

Title VII and §22.4 of the Act specify the proce-

dures 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

post—closure

care

(~724.l90et

seq.

and §S724.240

et

seq.)

Enforcement

against a facility in violation

of the

RCRA

rules could

proceed by two different routes:

a RCRA permit

could

be

issued

or modified reflecting the result of the enforcement

action;

or, the RCRA permit could be revoked, with any

necessary remedial action to be dealt with in

a Board Order.

Section

33 of the Act authorizes the Board,

among other

things, to revoke

a permit and

issue

a cease and desist

order.

It also provides for the posting of a performance

bond if a reasonable delay is included in which to correct a

violation.

It is thus clear that the Board could,

by its

order, bring

about

facility closure or compliance even in

the absence

of a RCRA permit.

The Board should retain the

option of

revoking

a

permit

and

proceeding

with

direct

Roard

supervision

of

a site under appropriate circumstances.

61-113

---

--6—

However,

in those circumstances

in which,

for example,

specifics of the closure and post-closure care plans

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 spe~:::fiesthe procedures which IEPA must

follow in issuing

or denying a RCRA permit.

The procedures

include the followtng:

1.

Public ~otice

of the application

2.

A tentative decision by the Agency

3.

Public comment and the opportunity for

a hearing

subsequent to

the

tentative

decision.

These procedures differ

from the contested 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 he 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,

§3006

of the Federal RCRA Act and

USEPA

regulations

require

Illinois

to

utilize

this

type

of

hearing.

USEPA

has

indicated

in

its

comments

that

this

is

an

essential

feature

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,

Pioneer Processing

v.

IEPA,

464

N.E.

2d

238

(1984).

How-

ever,

the statute

(see 1979

Ill.

Rev._Stat.

ch.

111½, former

Sec.

1039(c)

which

allowed

third

party

participation

in

hazardous

waste permit issuance has been repealed;

§39.3 of the Act is

inapplicable to RCRA permits

see

Sec.

39.3(h)

of the current

Act,

The right to

public

participation

before

the

Agency

in

issuance of

a RCRA permit is that required by federal regulations,

and

those

v’ery 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 com-

ments

or participated before the Agency;

Section 40(b) of the

Act allows third party appeal

of Agency issuance of

a

61-114

---

—7—

hazardous waste disposal permit, regardless of prior

participatio’~

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

sub-

stance 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

pro-

cedures 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.

IEPA 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 RCRA

permit

system:

The Board has never adopted “identical

in substance”

regulations

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 (Peab9~yCoal

v.

IEPA,

PCB 78—296,

38 PCB

131,

May

1,

1980).

The discharger

Eas to 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.

On the other hand,

§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

vari-

ances 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’s expertise

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 issue

or modify a RCRA permit incorporating the

Board’s

decision.

For

interim

status

facilities the RCRA permit issuance

61-115

---

—8-~

process

is initiated with

a request by IEPA

that

the

facility

file

a Part B application

(S703.l80(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 a~tvanceof

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

RCRA

Track

The

regulations

establish

special

procedures

which must

be

followed

in

cases

with

RCRA

involvement.

A

case

has

to

he

flagged

to

assure

that

the

special

procedures

are

followed.

This

should

be

easy

in

most

cases.

However,

the

RCRA

involve-

ment

might

not

become

apparent

until

bhe

case

is

ready

for

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

prior to the time the Board has dealt

with

the

merits

of

the

case

and

where

the

resolution

can

occur only after being 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

61-116

---

—9—

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

be 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 102.123

Proposal

of RCRA

Amendments

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 TSD standards also specify

site~specific

rulemaking

as

one

mechanism

for

adjusting

general

standards

for

example,

Section

724.401(b).

Paragraph

(b)(l)

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

a copy of the proposal

to USEPA.

Section 102.124

Notice of Site—specific RCRA Proposals

This section establishes specialized public notice

procedures to be followed in site—specific proposals.

General

program amendments will not have to follow these

requirements.

The

public

comment

period

will

usually

be

set

by

the

Hearing

Officer

following

the

completion

of

the

hearings

(Section 102,163) and by the Board following publication

in

the Illinois Register.

Section 102.202

Adoption

of RCRA Amendments

The

Board

will

proceed

at

a

minimum

with

notice

and

written

comment

prior to 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)I.

The

Board’s

Opinion

will meet

or

refute

USEPA’s

concerns

as

required

by

40

CFR

271.19(d),

61-117

---

—10—

Section 103.260

Purpose, Scope and Applicability

The enforcement procedures center on enforcement against

a facility with

a RCRA 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 should he fairly obvious.

Section 103,261(a)

allows any party to ask the Board to

invoke the special procedures.

If the case

comes

before

the

Board

for decision

and the Board determines that the case

may invol’~ethe 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

(~l03.263(d)),

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—

ceftires 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

103.261(b)(l)

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

~

based on

full

public hearinq~

jnr

~

The

respondent

could

also

admit

or

stipulate

to

the

violation

and

penalty.

61-118

---

—11—

The interim order will provide

for binder

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 time 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 Agency

is to

prepare

a

partial

draft

permit

including

such conditions as it finds

are

necessary

to

correct

the

violations found

in the

interim

order.

The

partial

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 any party wants to initiate the application

process,

it is not precluded from requesting that the

interim order

be

so worded.

If the Agency issues

a statement that no RCRA 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 be included

with the stipulated remedy.

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

rnT1’~~~1

h~

Thc~

!,

1~

~‘s

61-119

---

-.

12—

stipulate to a violation,

a penalty and

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.

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

remedy 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 descriptions

found in the federal rules,

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 available to the public

for at least 30

days

before the

hearing also,

Section

103.268

~~onfen~-s

‘~f

Bo~ird

()y~~

The Board will

not

the

issuance

or

modjfjcatj~

o~a0~~

which

would require

permit

unless

the

61-120

---

special procedures have been followed.

If necessary,

the

Board will enter an

interim

order

invoking,

or

reinvoking,

the

special

procedures.

If

the

Board

determines

that

it t~ist

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).

Section 104.104

RCRA Variances

Paragraph (a) contains the definition which fixes the

scope of the RCRA

variance

procedures:

a

“petition

for

a

RCRA variance”

is

one

which

requests

a

variance

from

the

RCRA rules or which requests that the Board otherwise order

temporary

issu~hce

or modification of a

RCRA

permit.

The procedures of this Part are centered 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 request 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 RCRA 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 considering variances 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 aid persons unfamiliar with the Board rules,

There are

several

federal procedures which

are

called federal

“variances~’

which, unlike the variances allowed under the Act, involve

permanent adjustment of the general rules on

a showing other

than

arbitrary

or

unreasonable hardship.

(For example,

compare

40 CFR 264,147(c) with 35

Ill. Adm. Code 724,247(c).)

There are

also

federal

procedures

which,

although

not

denomi-

nated as 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

l~l

---

—14—

Court has upheld the Board~sdecision

on

several

of

these

provisions (Commonwealth Edison v.

IPCB, Third District,

September,

1984).

These substantive rules indicate which

procedures are to be followed to obtain adjustment of

the

permit condition,

The Board anticipates that

there

will

be

many

niilti—

state firms which will use the federal regulations

as their

primary source

instead

of

the

comparable

Board

regulations,

Section 104.104(b)

is a cross reference intended to alert

persons before they invest the effort involved

in preparing

an unnecessary variance petition.

This Section

is not

intended as a comprehensive statement as to when

a

variance

is required.

Section 104.122

Consistency with Federal 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

varjance 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

the 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 ~rden

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”

I~

---

—15—

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.

tJSEPA

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

to

elected

officials

in

any

municipality

if

it

is

the

closest

population

center.

Section

104.182

RCRA

Variances:

Additional

Information

in Recommendation

The Agency must file 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~srecommendation.

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

be held not less than 30 days after the filing,

or anticipated

filing,

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

61-12~

---

—16—

invoked when the petitioner labels

the

petition

pursuant

to

Section 104.126.

The decision period will be

restarted

if

the petitioner failed to properly label the petition.

Paragraph

(c) provides that variances will be granted

only

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 (Sl04.122(e)),

The general

federal mechanism

analogous to the Illinois variance

is the compliance schedule

(40 CFR 270,33),

Variances analogous

to

compliance

schedules

must require compliance

with

the

general

regulations

in the

shortest possible

time,

The Board~sOrder 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 Second

Notice

Order

of this same date,

Because of its length, this Second

Notice

Opinion will not appear

in the Opinion volumes, but will be

distributed to participants.

Board Member J, Theodore Meyer dissented,

Board Members J. Marlin and B. Forcade concurred,

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

Control Board, he,~~y

certify

hat

the

above

Opinion

was

adopted on the

~

day of

,

1984

by

a

vote

Control Board