ILLI1’~OISPOLLUTION CONTROL BOARD
September 16,
1981
IN
THE
MATTER
OF:
)
R81—22
PROPOSED
REGULATIONS
FOR
RCRA
PRr~LIMINARYOPINION AND ORDER OF THE BOARD
(by D.
Anderson):
On July 22,
1981 the Illinois Environmental Protection
Agency (Agency)
filed a proposal to adopt regulations identical
in substance with 40 CFR Parts 260,
261,
262,
263 and 265.
The proposal took the form of a table
indicating suggested
amendments.
The
Board
had
adopted regulations similar to
the
proposal.
The Board has taken this action pursuant to P.A.
82—380
(SB 875) which requires the Board to adopt regulations which
are
identical
in
substance
with
federal
hazardous
waste
regu-
lations
in
order
for
Illinois
to
obtain
authorization
for
a
hazardous waste program pursuant to the federal Resource
Conservation and Recovery Act (RCRA).
This legislation allows the Board to adopt regulations
without resort to §5 of the Administrative Procedure Act and
Title vii of the Environmental Protection Act.
The Board will
submit the adopted rules to the Secretary of State for filing
and for publication in the Illinois Register.
These regulations will become effective upon receipt of
Phase
I interim authorization by the Agency ~3006(c) of RCRA.
The Board anticipates that this will take several months.
The
Board proposes to modify these regulations approximately 60
days from the date of this Order.
Persons desiring to comment
on the regulations adopted this day should do so within 45
days of the date of this Order.
The Board will do this to
insure that the public
is informed of its action and that a
complete record of Board regulatory actions
is in the Illinois
Register index system.
This proposal was developed by the Board staff based on
the table contained in the Agency’s proposal.
An informal
draft was circulated to the Agency, the United States Environ-
mental Protection Agency
(USEPA) and the Illinois Attorney
General.
The informal draft was modified in part pursuant to
comments from the Agency and USEPA.
Everyone will be afforded
an opportunity to comment following adoption of the rules.
43—427
—2—
40 CFR Parts 260 through 265 have been amended several
times since the interim final rules of May 19,
1981
(45 FR
33,066).
The text of Parts
720 through 725 reflects amend-
ments through July,
1981.
In the case of Parts
720, 722 and
723,
the Board has relied on texts of amended federal rules
provided by USEPA.
For Parts
721
and
725,
the Board has
developed a federal text based on Agency’s tabular proposal.
The following tables present the sources of these Parts:
Part 721
(40 CFR Part 261)
45 FR 33,119
47,833
72,028
74,890
76,620
78,529
May
19,
1980
July 16, 1980
October 30, 1980
November 12, 1980
November 19,
1980
November 25, 1980
45 FR 80,287
46 FR
4,617
27,476
29,708
34,587
35,247
December
4,
1980
January 16,
1981
May 20, 1981
June
3, 1981
July 2,
1981
July
7, 1981
Part 725
(40 CFR Part 265)
45 FR 33,233
76,074
76 ,618
78,524
86,966
46
FR
2,802
7,666
May
19,
1980
November 17, 1980
November 19, 1980
November 25,
1980
December 31, 1980
January 12, 1981
January
23,
1981
46 FR
8,395
13,492
16,897
27,119
27,473
33,502
35,249
January 26,
1981
February 20, 1981
March 16,
198.
May 18,
1981
May 20, 1981
June 29, 1981
July
7, 1981
The federal regulations contain many appendices.
The
Board is not at this time adopting the text of these, but will
consider adopting some or all at a later date.
The appendices
to the federal rules are incorporated into the text by
reference.
These regulations are adopted in a format intended to
comply with the Secretary of State’s codification scheme.
The
Board will not however submit these rules
to the State Library
for review of format prior to publication.
However,
the Board
will submit a copy of the adopted rules to the State Library
and
will make any necessary format changes approximately 60 days
from the date of this Order.
The codification rules require a format very similar to
the Code of Federal Regulations.
For this reason it is simpler
to go directly to a codified format, rather than going
first
to the Board’s old format,
to be followed by codification at
some later date.
Most of the regulations repeat the federal regulations
verbatim.
It has been necessary to change the numbers of the
rules to conform with codification rules and with other format
4 3—428
—3—
conventions previously agreed to by the Board.
The algorithm
for section numbers is as
follows:
1.
Start with the federal section number
§261.3
2.
Insert
sufficient
zeros
to
the
right
of the decimal point to make
3 digits
to the right of the decimal point
§261.003
3.
Add 0.100
§261.103
4.
Add 460.000 to get the Board’s section
number
§721.103
The Illinois format requires that subsections be numbered
as follows:
§721.103(a) (1) (C) (i).
The federal format is
inconsistent, but frequently looks like this:
§261.3(a) (1)
(iii) (A).
The federal subsections have been renumbered to
conform with the Illinois system.
The federal sections at several places break totally out
of any outline structure, with unnumbered subparagraphs in the
midst of numbered subparagraphs.
It is difficult to cite to
these “hanging” paragraphs and they do not conform with codifi-
cation requirements.
Where these occur it was necessary to
rearrange the sections.
Cross references within the federal rules have been
renumbered
according
to
the
algorithms
for
changing
section
and
subsection
numbers.
These
have
been
checked
to
determine
whether there
is a section by that number.
There probably are
references which now go to a rule which is not the equivalent
of the federal rule, either because of a typographical error
or because the section had to be rearranged.
The Board asks
the public to check the cross references in the sections
affecting them and to comment on any apparent errors.
In addition to regulations equivalent to federal regula-
tions, the Board has adopted Part 700:
Outline of Waste
Disposal Regulations.
Adoption of the federal rules without
further explanation could produce confusion because the Board
already has a hazardous waste program in effect.
The intent
is that a person familiar with the federal rules should be
able to understand the essential peculiarities of the Illinois
system by reading only Part 700.
Under the existing system, the public must comply with
both a state and federal hazardous waste program which are
both
presently
administered
separately
by
the
Agency.
Presently
the RCRA program is managed under contract.
Certain accommoda-
tions have been reached.
Part 700 seeks to preserve the status
quo.
Authority to adopt regulations reconciling the new rules
43—429
—4—
with the old is inherent in the grant of authority to adopt
regulations identical in substance.
The following are areas where modifications in the federal
system have been made:
Part 724:
The Board is not adopting the equivalent of
40 CFR Part 264
at this time.
These rules will be adopted in
the future
as part of a Phase II application.
References in the federal text to Part 264 have been
changed to Part 724.
In place of Part 724,
a rule has been
inserted which states that such references
are inoperative.
This avoids the alternative of editing the text to remove the
references, only to be followed by reinsertion of the refer-
ences in the near future.
Interim Status:
Part 725 has been made directly applicable
to all HWM owners and operators regardless of permits or
interim status requirements
~725.l01(b).
This eliminates a
loophole which would develop is
40 CFR Part 265 were adopted
without Parts 122,
123 and 264.
Deemed issued permits:
§21(f) (1)
of the Act as amended by
P.A.
82—38ff
(SB
875) imposes an immediate RCRA permit require-
~nt
for
hazardous
waste
storage,
treatment
and
disposal
facilities.
The
federal
regulations
provided
a
“deemed
issued”
permit for interim status facilities
(40 CFR §122.23,
45 FR
33,434).
The Board will follow this approach in order to avoid
closing down existing facilities during the period before a
permit program is in effect.
Section 700.106 tracks
40 CFR
§122.23 very closely.
Identification Numbers:
Chapter
9 requires “Agency identi-
fication numbers” of special waste transporters.
The RCRA rules
require
“EPA
identification
numbers”
of
generators,
transporters
and
HWM
owners
or
operators,
The
Board
intends
to
continue
both
sets
of
numbers.
The
term
“USEPA
identification
number”
has
been
used
in
the
headings
of
the
RCRA
rules
to
avoid
confusion.
However, it
is
better
to
leave
the
term
as
“EPA”
in
the
text
to
preserve the federal terminology (~722.ll2,723.111, 725.111).
Transporter Permits:
The RCRA rules do not require EPA
identification numbers of transporters who haul only hazardous
waste covered by. a small quantity exemption (S722.lll). On
the
other hand Rule 201 of Chapter 9 requires permits of haulers
~‘un1essthe hauler is exempt from the special waste hauling
permit requirements under this Part”.
The exemptions are in
Rules 210 and 211.
The latter contains exemptions
for special
wastehaulers by type of hauler.
The former is the small
43—430
—5—
quantity exemption.
It exempts “Any person who generates
a
total quantity...”.
It does not apply to transporters, except
those who are also generators
~700.4O4(b).
Federal regulations previously adopted:
The Board has
recently adopted by reference certain of the federal rules
which are identical in substance to those adopted today.
Part XV of Chapter
9 references 40 CFR Part 265, Subparts G
and
H,
Closure
and
Post
Closure
and Financial Requirements
(R8l-l4,
5 Iii. Reg. 5719, May 29, 1979).
Part XV will become
unnecessary
and
will
be
repealed
upon
the
effective
date
of
Part 725.
The Board also adopted by reference the similar require-
ments of 40 CFR Part 264, Subparts G and H.
These are unnec-
essary for the same reasons the Board is not adopting Part 264.
Therefore Part XIV of Chapter 9
will also be repealed.
Listings:
P.A.
82-380
(SB
875) withdraws the Agency’s
authority to list hazardous waste.
This leaves a potential gap
in Chapters
7 and 9.
Although the Act and Chapter 9 reference
USEPA listings into the definition of hazardous,
the Board will
make its listings effective immediately in order to provide a
basis in Illinois law for enforcement under existing provisions
of Chapters
7 and 9
as applicable to listed waste (~700.l07).
Rulemaking Petitions:
40 CFR Part 260, Subpart C has not
been adopted.
Modification of the hazardous waste rules
adopted by the Board must proceed pursuant to Part II of the
Procedural Rules
(~720.120).
Equivalent Testing Methods:
40 CFR §260.21 provides for
petitions for equivalent testing methods.
§720.120 provides
that
alternate
equivalent
testing
methods
require
a
variance
or
site-specific
rule
from
the Board.
Amendment
of Post Closure
Plan:
40
CFR
§265.118
provides
a method for amendment of the post closure plan on the petition
of either the operator or public.
These procedures applied t’~
the Illinois context appear to contemplate the grant of vari-
ances or site-specific regulations.
These powers are reserved
to the Board, while permits are issued by the Agency.
The
Board has therefore added to the federal text §725.218(g).
This provides that these procedures
are in the nature of
permit modification only and require a separate proceeding
before the Board if a variance or rule change is required.
Manifest requirements:
Federal rules impose
a duty on
the waste generator to report lost loads.
Illinois has no
43—431
—6—
such duty, but requires copies of the manifest from the genera-
tor and HWM owner or operator.
These are computer matched and
the state
assumes the burden of tracking missing loads.
The
proposal combines these systems (~700.303,700.403, 700.503;
§722.120;
§723.120; §725.170)
Unmanifested Waste Report:
Chapter
9 apparently contains
an absolute rule against
acceptance
of
unmanifested
waste,
unless
a manifest is not required (Rules 210, 211 and 501 of
Chapter 9).
This poses questions as to how the operator knows
whether a load is exempt and what happens to a load that is
turned away.
The federal rules provide for a certification
that
a generator is exempt and an unmanifested waste report
to
be
filed
by
the
operator.
The
Board
has
extended
these
to
Chapter
9
waste
~700.503(e).
Retroactive Effective Dates:
Most of the rules go into
effect upon Phase
I authorization, or as specified in the
rules.
The rules themselves mostly specify various dates
between
May
19,
1980
and
November
19, 198J.
These dates are
taken
from
the
federal
rules,
although
descriptions
have
been
changed to actual dates
(i.e.
“Six months after” has been
changed to “November 19,
1980”).
The Board intends Parts
700, 722,
723 and 725 to be of
no effect until Phase
I authorization.
At that time the rules
will go into effect,
These
rules will specify dates which
appear to be retroactive,
These dates
are being left in the
body of the rules to keep them as nearly identical to the
federal rules
as possible.
However,
in the event an enforce-
ment action is filed,
violation of federal rules must be
alleged up to the date of Phase
I authorization.
The present system is not altogether satisfactory.
There
is however a question as to how far the Board can go in modify-
ing its existing rules and the RCRA rules
without
resorting
to
full
rulemaking.
The Board offers the following suggestions
for comment and solicits additional suggestions
for eventual
modification
of
the Illinois hazardous waste program.
1.
The
small
quantity
exemption
of
Part
721
could
be
adjusted
to 100 from 1000 kg.
This would bring all regulated
hazardous
waste
under
the
RCRA
rules
(Rule
210
of
Chapter
9
and §721.105)
.
The hazardous waste rules would then be
far
simpler.
Chapter
9
could
be
replaced
with
modified
requirements
for
persons
handling
large
quantities
of
non—hazardous
special
waste,
2.
Hazardous waste incinerators are presently subject to
Chapter 2:
Air Pollution.
Should hazardous waste incin-
erators be required to meet the
same
emission
limitations
4 3—43
2
—7—
as other facilities with respect to conventional air
pollutants
such
as
particulates,
carbon
monoxide
and
sulfur
dioxide?
Could
this
be
replaced
with
relaxed
emission
limitations or
a requirement that the incinerator be
operated efficiently and obtain complete destruction of
hazardous materials?
3.
Should
the
requirement
of
a
variance
for
open
burning
of
explosive
waste
be
replaced
with
a
permit
requirement
(Rule
505
of
Chapter
2)?
4.
Can
the
regulations
be
modified
to
reduce the regulatory
burden
on
legitimate
recycling?
Do
the
regulations
provide
adequate
protection
against
abuses
by
persons
purporting
to
be
recyclers?
5.
Are
the
operating
requirements
of
Chapter
7
necessary
in
the
context
of
a
hazardous
waste
landfill?
Would
the
RCRA
requirements
be
sufficient
in
the
absence of Chapter 7?
6.
40
CFR
§260.21
provides
for
alternate
equivalent
testing
methods.
Testing
methods
are
relevant
in
three
contexts:
determining
whether
a
waste
should
be
listed
in
a
rule-
making;
determining
whether
a
given
waste
is
hazardous;
and,
determining
whether
a
given
waste
conforms
to
the
description
in
the
manifest.
Are
the
regulations
suffici-
ently
flexible
on
approval
of
alternate
equivalent
testing
methods?
7.
The Board has provided that
an unmanifested waste report
may
be
filed
by
an
HWM
owner
or
operator
receiving
waste
requiring
a
manifest
under
Chapter
9.
Should
that
Chapter
be
amended
to
provide
a
defense
for
an
operator
accepting
unmanifested waste?
The record will be
held
open
for
45 days for comment.
The
adoption of the rules which appear below, which is supported
by the above Preliminary Opinion,
is not
a final action of the
Board.
These rules are subject to modification in
a future
Board order.
This Order will, however, become final and
appealable when and if Parts 700,
722, 723 and 725 take effect
pursuant to §700.106 prior to entry of a modifying Order.
The Board will adopt the rules which will appear in the
Illinois Register.
4 3—433
—8—
0 RD E P
The
Board
hereb”
a.iopt~i ~‘a:’ts
7J0,
‘120,
721,
722,
723,
ar~d 725,
~nz the re~rvationof Part 724, pursuant to §22.4 of
the Illinois Envirormental Protection Act as amended by P.A.
82—380
(SB 875).
The Clerk is directed to file the text with
the Secretary of State and to prepare a notice of adopted rules
for publication in the Illinois Register.
Parts XIV and XV
of Chapter
9:
Special Waste Hauling Regulations are hereby
appealed, effective on the date Illinois receives Phase
I
interim authorization from USEPA.
IT IS SO ORDERED.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Order was adopted on
the
j
day of ~
,
1981 by a vote of
~,/-O.
christan
L. Moffe~
,
(~lerk
Illinois Pollutioh
trol Board
43—434