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

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