ILLINOIS POLLUTION CONTROL BOARD

February

4, 1982

In the matter of:

R81—22

PROPOSED REGULATIONS FOR RCRA

FINAL ORDER.

ADOPTED RULES

OPINION OF

THE BOARD

(by D.

Anderson):

On September 16, 1981 the Board adopted Parts 700 and 720

through 725.

These were filed with the Secretary of State and

appeared in the Illinois Register

(5 Iii. Reg.

9781, October 2,

1981).

In November, 1981 comments on the adopted rules were

filed pursuant to the Board’s request.

On December 3, 1981

the Board proposed to amend the September 16 rules.

A draft

opinion and proposed text of the rules were made available for

public comment.

On December 8, 1981 United States Environmental Protection

Agency

(USEPA)

conducted a hearing on the Illinois Environmental

Protection Agency’s

(Agency’s)

application for Phase

I interim

authorization pursuant to the Resource Conservation and Recovery

Act

(RCRA).

The Board

will

adopt the December

3

amendments modified

pursuant

to

comments.

The

changes

prior

to

and

after

December

3

will

be

discussed

together

in

the

following

Opinion.

COMMENTS

The Board received a large number of comments generally

supporting the September 16

rules.

Numbers

PC1

through

PC4

were assigned to the comments which reviewed the regulations

in

detail.

The

Board

received

only

four

~

mié~n~s

tb~the becember

3

proposal,

two

of

which

were

from

persons

who

had

already

commented.

Numbers

PC5

through

PC8

were

assigned

to

the

comments

on

the

December

3

proposal.

PC1

Mary

Redmond,

Secretary

of

State,

Illinois

State

Library.

PC2

Sheldon

A.

Zabel

and

Carolyn

A.

Lown,

Schiff

Hardin

&

PC6

Waite, Central

Illinois

Light

Company,

Central

Illinois

Public Service Company, Commonwealth Edison Company and

Illinois Power Company.

PC3

Dixie

L. Laswell and Johnnine Brown Hazard, Rooks, Pitts,

PC7

Fullagar

& Poust, Granite City Steel Division of National

Steel Corporation, Interlake, Inc., Northwestern Steel

&

**

The Board acknowledges the contributions of Norton Dorothy and

Tammy Weinstock.

45—317

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—2—

Wire Company, Republic Steel Corporation, and United

States Steel Corporation

PC4

Scott 0. Phillips, Division of Land Pollution Control,

Illinois Environmental Protection Agency.

PC5

Joanna Hoelscher

and

Dr. Robert Ginsburg, Citizens for a

Better Environment.

PC8

Melanie

S. Toepfer, William A. Price, Thomas L.

Reid,

Frank Shipton and Burness E. Melton, Chemical Industries

Council of the Midwest, Chicago Association of Commerce

& Industry, Illinois Manufacturers’ Association, and

Ililnois Trucking Association.

UPDATING THE TEXT

The text has been updated to reflect changes in federal

regulations since the cut off of the September 16 rules through

October

1,

1981.

The Board has taken account of the following

changes

(PC3,

4):

40 CFR PART 261

35 Iii. Admin. Code

46 FR 44,970; September 8, 1981

§721.106

46

FR 46,426; September 25, 1981

§721.104(d)

40 CFR PART

265

35

Ill.

Admiri.

Code

46 FR 38,312; July 24, 1981

§725.240

46 FR 48,197; October

1,

1981

§725.240

The amendments incorporated into §721.104(d)

provide an

exception from the regulations

for transportation of laboratory

samples, those in §721.106 an exception for recycled spent

pickle liquor.

These are set forth in the new text.

The

amendments to Part 725 extend the date for compliance with

financial responsibility regulations.

The Board hereby incor-

porates the new dates by reference in accordance with 46 FR

48,197.

The power companies have requested incorporation of new

federal amendments:

§721.103

46 FR 56,582

(November 17,

1981)

§725.412 et seq.

46 FR 56,592

(November 17,

1981)

The amendments to §721.103 exempt some mixtures of solid

and hazardous waste from the definition of hazardous.

The

45—31R

---

—3—

amendments to §725.412 et seq. allow “lab packs” of ignitable

waste

to

be

landfilled.

It

is

necessary

to

bring R81-22 to a final appealable

order.

Past

experience

has

shown

that

it

is

unwise

to

adopt

regulations without notice and

comment.

A

comment

period

would delay a final order by at least 60 days.

The Board will

therefore consider these amendments in connection with a new

proposal pursuant to §720.120(a).

Under the terms of §22.4(a),

as argued by the commenters, the Board has at least until

May 18,

1982 in which to incorporate

these amendments.

MODIFICATION OF FEDERAL TEXT

The federai text has been modified in several respects~.

These are summarized as follows, with examples:

1.

Modifications of federal rules which do not fit the

Illinois scheme

(55720.102,

720.120,

721.101,

725.101).

2.

Deletion of material which is unnecessary in the

Illinois context

(55721.110, 723.110).

3.

Codification changes

(Ill. Admin.

Code Parts 120 and

160,

5 Iii.

Req. 14,056,

14,112,

14,204, December 18, 1981).

4.

Insertion of Chapter

9 requirements

(55722.122,

725.101)

5.

Insertion of cross references

(55721.105,

722.110,

723.110,

725.101).

Section 22.4(a)

of the Act directs the Board to adopt

regulations

“identical in substance”

to federal RCRA regula—

tions.*

As

is discussed in greater detail below,

this obviously

does not require adoption of the federal text in haec verba

(PC2).

At the least it allows the Board to make those modifi-

cations which are necessary to make the RCRA program work in

the framework of the Illinois Act.

USEPA is

a single agency which writes

rules, grants vari-

ances, issues permits, performs inspections, initiates enforce-

ment and issues orders.

In Illinois these functions are

divided between the Board and Agency.

USEPA’s rules frequently

do not make sharp divisions between its functions.

Care must

*This carefully chosen term differs from the “substantially

equivalent”

language for state approval under RCRA (53006).

~5—319

---

—4—

be taken in domesticating these rules.

Division of jurisdic-

tion between Board and Agency must be in accordance with each

agency’s statutory authority.

After jurisdiction is decided,

the rules must be modified to assure proper notice and other

Illinois conditions precedent

(5S720.120 et seq. and §5725.210

et

seq.

present

difficult

problems

of

this

sort).

40 CFR §260.2

provides

for availability of information

under the federal Freedom of Information Act.

This has been

deleted because the Agency and Board are not subject to this

statute (5720.102).

It is therefore unnecessary in the Illinois

context.

The Secretary of State’s office has promulgated detailed

regulations concerning form of regulations, which are now

subject to

review by the Illinois State Library prior to filing.

Although it would be possible to file these rules now without

conforming, they would have to be modified before the 1983

deadline for codification,.

The single example of insertion of existing Board require-

ments into the federal text is delivery

of copies of manifests

to the Agency

(55722.122 and 725.171).

This is really a cross-

reference, but it has been elaborated to provide a complete

list

of

requirements

in

the

RCRA.

text.

Part 700 also contains a number of rules which merely refer

the public to provisions in the Act, federal RCRA Act, Chapter 7,

Chapter

9 or the RCRA rules.

These were adopted because, with

addition of RCRA, the waste rules no longer had a logical

structure.

ADDITIONAL FEDERAL MATERIALS

One commenter

(PC2)

has reguested incorporation of various

introductory materials and interpretations by USEPA.

The incor-

poration of these materials is required neither by P.A.

82-380

nor by RCRA itself.

The Board also notes that to incorporate

this material would give

it. greater weight than it has before

(JSEPA.

Due to the fact that these

rules were drafted by USEPA,

federal interpretations will naturally carry weight in the

application of these rules.*

*PC2 is especially concerned that the Board follow USEPA’S

interpretation of the fossil fuel combustion waste exclusion of

40 CFR S261.4tb~t4).

This is contained in a letter dated Janu-

ary 13,

1981 from Gary N. Dietrich of USEPA to Paul Emler,

Jr.

The

Board

intends

to follow this interpretation as it exists on

the

date of adoption or amendment of §721.104, and will consider

future USEPA interpretations of the corresponding federal rule

in any cases which should arise under its rules.

45-320

---

—5—

The electric utilities have renewed their objection to

the failure of the Board to actually incorporate the federal

appendices

by

reference

(PC6).

The

actual

incorporation

by

reference

would

give

the

appendices

greater

weight

than

they

enjoy

as

federal

appendices.

For

example,

the

Appendix

I

sampling

methods

would

then

be

“formally adopted by the Board,”

requiring a §720.121 demonstration of equivalency by anyone

seeking to use other sampling methods.

This would contradict

the comment to §721.120(c).

AUTHORITY FOR PA1~2700

The September 16 regulations took the form of Part 700

and Parts

720 through 725.

The latter corresponded with. opera-

ting requirements found at 40 CFR Parts

260 through 265.

Part

700 contained rules which integrated the

RCR.A rules with exist-

ing Board requirements in Chapters

7 and 9, and with other

chapters.

Two commenters objected to Part 700

as unauthorized

(PC2

and

PC3).

Section 22.4(a)

arid

22.4(b)

provide

as

follows:

Sec.

22.4.

(~)

The Board shall adopt within 180 days

regulations which are identical in

substance

to federal

regulations or amendments thereto promulgated by the

Administrator of the United States Environmental Protec-

tion Agency to implement Sections 3001, 3002,

3003, 3004,

and 3005, of the Resource Conservation and Recovery Act

of 1976

(P.L.

94—580),

as amended.

The provisions and

requirements of Title VII of this Act shall not apply to

rules adopted under this subsection.

Section

5 of the

Illinois Administrative Procedure Act relating to proce-

dures for rulemaking shall not apply to rules adopted

under this subsection.

(b)

The Board may adopt regulations relating

to a state hazardous waste management program that are

not inconsistent with and at least as stringent as the

Resource Conservation and Recovery Act of 1976

(P.L. 94—

580), as amended, or regulations adopted thereunder.

Regulations adopted pursuant to this subsection shall be

adopted in accordance with the provisions and requirements

of Title VII of this Act and the procedures for rulemaking

in Section

5 of the Illinois Administrative Procedures Act.

Section 22.4(a) provides for

a quick adoption of

regulations which are idemtical in. substanc~,~chile.~22.4~b)

requires regular-B~rd-~ruieLlaking

for adoption of other require-

ments which are not inconsistent with and at least as stringent

as federal rules.

45—321

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—6—

In

adopting

Part

700,.

the

Board

interpreted

§22.4

as

requiring

it

to

adopt

the

‘federal

regulations,

making such

adjustments

as

were

necessary

to

accommodate

the

peculiarities

of

Illinois

law,

and

to

integrate

this

with

its

existing

rules,

applying

the

standard

of

S22.4(b).*

On

the

other

hand,

coin-

menters

contend

that

the

intent

of

§22.4

was

to

repeal

all

existing

regulations

concerning

haz àrdous

waste.

Board

members

and

staff

participated

in

the

legislative

process resulting in P.A.

82—380.

They

assumed

that

the

legis—

lation continued existing requirements.

The Board is not aware

of anything in the legislative record indicating the alternative

interpretation.

The Board presently has in place a permit system which

covers hazardous waste disposal

(Rules 201, 202 and 310 of

Chapter

7)

and a cradle-to—grave tracking system centered on

hazardous waste transpc~rtation (Chapter 9).

The following

would be

consequences of abandonment

of these chapters as

applied to hazardous waste:

1.

Section 21(f) (1)

imposes

a RCRA permit requirement on

hazardous waste operations.

Federal and state law prohibit

the issuance of these permits until Phase II authoriza-

tion is received from USEP.A

fS

3 (qq)

of the Act

.

**

The

interpretation urged would immediately exempt existing

hazardous waste landfills from the existing Chapter 7

permit program.

The~’would be able to operate outside

any permit program on

a deemed issued basis for an indefi-

nite period of time until Phase II authorization is

received.

2.

Part 725, especially Subpart N,

contains operating require-

ments for landfills.

The Board has existing requirements

applicable to landfills, including hazardous waste land-

fills

(Part III of Chapter 7).

The Board’s existing

requirements, especially Rules

303, 305 and 314,

are far

more detailed than the RCRA requirements.

The Board

requires, for example, definite amounts of daily, inter-

mediate and final cover.

The interpretation urged would

allow these existing landfills to operate without complying

with detailed operating regulations for an indefinite

period of time until Phase II authorization.

*Addjtional hearings on the existing rules pursuant to

Title VII of the Act are not necessary.

These were held prior

to their adoption.

**However,

the Board has provided that these permits are

deemed issued to existing facilities under conditions similar to

federal interim status

(55700.105, 700.109 and 40 CFR Part

122)

45—322

---

3.

The. Board has in place a cradle—to—grave regulatory program

applicable to all hazardous waste generated in monthly

quantities greater than 100 kg (Chapter 9).

The RCRA rules

have a 1000 kg exemption

(Part 721).

The interpretation

urged would immediately exempt from regulation hazardous

waste

(non-acute)

generated in quantities of 100 to 1000

kg/month.

It would also result in greater regulation of

certain quantities

of non-hazardous special waste than

hazardous waste.

4.

Chapter 9 presently requires copies of manifests to be

sent to the Agency by the generator and recipient of the

waste.

The Agency enters these

on a computer which produces

missing load reports and other information.

The system

under the federal RCRA rules relies on self—reporting of

missing loads and annual reports of waste movements.

The

Agency’s system, which is currently operating, appears to

be far more efficient in tracking waste and detecting non-

compliance.

The interpretation urged would impose the

federal system on Illinois and deprive the Agency’s computer

of its input.

Even if the system were eventually readopted

following a new round of hearings, there would be a gap

in the data and a new start—up period.

The legislature has found that hazardous waste imposes

special dangers to health and requires

a greater degree of

regulation than non-hazardous waste

(520(a)(4).

Adoption of

the interpretation urged would leave hazardous waste less regu-

lated

than

general

waste

arid

non-hazardous

special

waste

during

the indefinite period prior to receipt of Phase II authorization.

This would be inconsistent with the legislative findings and

contrary to the intent of P.A.

82-380.

Section 21(g) (1)

requires permits of hazardous waste trans-

porters such

as those presently required by Chapter 9.

The

federal RCRA rules have no comparable transporter permit

requirement.

The interpretation urged would prohibit hazardous

waste transportation until the Board could conduct hearings to

re-establish the Chapter

9 permit program.

The RCRA regulations would be largely moot if hazardous

waste transportation were prohibited pending revalidation of

Chapter 9.

This would be inconsistent with the intent of

§20 (a) (8), in which the legislature has also found that it is

in the interest of Illinois to avoid the existence of conflicting

state and federal regulations

f520(a)(8).

It could also pose

a hazard to public health by requiring temporary storage of

wastes in inadequate facilities at the site of generation.

This would be inconsistent with §20(a) (4).

Indeed the specific

continuation of the Chapter

9 permit program is positive evidence

of legislative intent that Chapter 9 continue after RCRA is

implemented.

45—323

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—8—

The intent of §22.4 was, contrary to the. comments, that

Chapters

7 and

9 continue to apply to hazardous waste.

Indeed,

the correct interpretation is that the Board is precluded by

§22.4(b)

from abandoning, without hearings, any of its existing

requirements which are not inconsistent and at least as

strin-

gent as federal requirements.

Commenters argue that the statutory authority for Chapter 7

is now missing in that there is now specific authority for

hazardous waste regulations

apart. from genera’ waste regula-

tions

(5522.4 and 22).

In the first place, §22 still authorizes

regulations concerning “refuse” or “waste” which includes

hazardous waste.

Secondly, the legislature has not specified

which chapter the regulations must go into.

The Board now has

at least the same authority over hazardous waste landfills

that it always had; only the exact wording and

numbering

in

the Act have been changed.

These sections have been similarly

amended every year with no one claiming the regulations needed

revalidation.

A number

of

comments

have

been

made

concerning

the

contin-

ued

viability

of

Chapters

7 and 9

(PC6,

7,

8).

These were

answered in the draft opinion with the exception of one issue.

Chicago Association of Commerce

arid Industry (CAd)

has noted

that the continued’ applicability of Chapter

9 has the effect

of nullifying much of the effect of the recycler exemptions of

the RCRA rules.*

The Board lacks authority to summarily repeal

the more stringent aspects of existing Chapters

7 and

9

which

are not inconsistent with the RCRA rules.

The Board has initiated

rulemaking pursuant to §22.4(b)

to address the Chapter 9 problems

(R81—31)

INTEGRATION OF CHAPTERS

7 AND

9

Granted that the legislature intended the Board to retain

its existing requirements until modified by full rulemaking,

th’

question becomes how to best accomplish this.

Several possi-

bilities were considered:

1.

Adoption of federal regulations, possibly by reference,

leaving problems to be worked out on a case—by—case basis.

~

example

is spent pickle liquor used in wastewater

treatment plants.

Even though it is now exempt from the RCRA

rules, it continues to be a special waste subject to Chapter

9.

It is an example of an industrial process waste listed in the

definitions

in the Act.

45—324

---

I,

2.

Adoption of federal regulations together with provisions

requiring compliance with Chapters

7 and

9 insofar as not

inconsistent

and

at

least

as

stringent.

3.

Identification of consistent provisions

in Chapters

7 and

9 to be written into the RCRA rules.

4.

Adoption, outside RCRA1 Chapter

7 and Chapter

9, of a new

set of rules identifying consistent provisions

(Part 700).

The first alternative would have been the simplest:

the

Board would have deferred the task of sorting this out.

However,

it would have left vast uncertainty in what was expected of the

public.

The remaining alternatives involve some form of Board

rulemaking beyond mere adoption of the federal text.

The

statutory basis

in any case would be the inherent authority in

§22.4 to adopt a set of rules which make sense.

The legisla-

ture obviously did not intend that the Board adopt rules which

would be too vague or contradictory for the public to follow.*

Section 20(a) (6)

states that it would be inappropriate

for Illinois to adopt a program which conflicts with the federal

program.

Section 20(a) (8)

states that it is in the interest of

Illinois to avoid duplicative, overlapping or conflicting state

and federal programs.

Section 20(b)

states that it is the

purpose of P.A. 82-380 to empower the Board to adopt such

regu-

lations

as will enable Illinois to secure RCRA authorization.

Section 22.4(b)

provides for adoption of regulations which

are “not inconsistent with and at least as

stringent

as”

RCRA.

This

is

a directive to the Board to adopt regulations, not a

rule applicable to the public.

This language is missing from

provisions of the Act relating to conduct by the public:

§21(f) (2)

requires compliance with Board regulations with

no qualification as to consistency or stringency.

The original Agency proposal suggested insertion of language

at several points within the RCRA rules to the effect that the

affected community was also subject to Chapters

7 and

9 and were

to comply with them to the extent they were not inconsistent

with and more stringent than the RCRA rules

(Option 2).

2C2

and PC3 have, insofar as they recognize continued viability of

the chapters, essentially requested the same approach.

The Agency’s proposal and the comments ask that the Board

merely repeat the directive of §22.4(b)

in the rules applicable

*Indeed, both PC2 and PC3 recognize inherent statutory

~uthoritybeyond adoption of the federal text in haec verba:

0th ask for rules exempting people from Chapters

7 and

9.

45—325

---

to the public.

Although this is an attractive alternative

insofar as making certain the resulting rules conform with the.

statutory mandate, it still leaves the rules extremely vague.

It is an evasion of the obvious duty of the Board to compare

its rules to the RCRA rules and identify those which are

inconsistent or less stringent.

In Part 700 the Board, among other things, went through

Chapters

7 and 9 and the RCRA rules,

comparing the provisions

from the perspective of generators, transporters and HWM

owners and operators.

For each,

the

provisions were roughly

grouped according to whether they related to permits, operating

requirements, manifests or small quantity exemptions.

OUTLINE OF WASTE DISPOSAL REGULATIONS

(Part 700)

Applicability (S700.10l)

Part 700 contains provisions

which determine which set or sets of waste regulations govern

various persons and activities.

It provides for the inter-

relation of the following:

1.

Chapter

7

General Waste Disposal

2.

Chapter 9

Special Waste Transportation

3.

Parts 720—725

RCRA Regulations

4.

Chapter

9, Part IX

Hazardous Hospital Waste

Two commenters attacked the foundation of Part 700 by

contending that §22.4 of the Act repealed Chapters

1 and

9

with reference to hazardous waste.

This

is discussed above.

Other Regulations (~700.102) Persons must generally comply

with other Chapters if they would be required to comply with

them under their own terms.

Specific examples

are given.

This

section drew no comments.

Organization (~700.l03) This indicates the manner in which

Chapters

7 and

9 may be incorporated into the codified subtitle

G.

It is hoped that substantive revisions coupled with codifi-

cation will be completed prior to the codification deadline

(R80—20, R8l—7, R8l—9, R8l—18,

R81—25, R81—3l, R81—32).

It is

hoped that Chapters

7 and

9 can be restated in a manner so that

the relationship with the RCRA rules will be within them so that

most or all of Part 700 can be eliminated.

Intent and Purpose (~700.l04)(Pd, PC2).

This contains

general principles which were followed in reviewing Chapters

7

and

9

(including hazardous hospital waste rules) and RCRA

rules

to arrive at the detailed rules of Subparts C,

D, E and F.

To

arrive at these, these general rules were applied to regulations

concerning permits, operating requirements, manifests and small

45—326

---

quantity exemptions,

as applied to generators, transporters

and HWN owner/operators.

Section 700.104(a)

states that it is the Board’s intention

in general to continue the. status quo from the existing situa-

tion in which the Agency administered the Chapter

7 and

9

programs at the same

time

as the RCRA program under contract

with

USEPA.

Section 700.104(b)

states that the Board is not adopting

new permit programs.

Section 700.104(b) (1)

has been added to

the September 16 rules to make it clear that the Board intends

Part 725 to be applicable regardless of federal interim status

under 40 CFR §122. 23.

This is provided in §725.101 and is

discussed in connection with that section and §700.105.

Section 700.104(b) (2)

has also been added.

The Board

intends that persons who have federal interim status should be

deemed issued permits under §21(f)

of the Act

(~700.1O5).

Under §700.104(c)

it is the Board’s intention that Parts

720-725 should have the same scope

as the corresponding federal

regulations.

A reference to “wastes” has been added to

make

it

clear that the Board intends to regulate both the same wastes

and persons as USEPA.

Section 700.104(d)

states the general rule for resolving

latent conflicts between the RCRA rules and Board regulations:

the rules are cumulative with a bias toward the RCRA rules.

The Board has expressly identified in Part 700

arid this Opinion

those provisions

of Chapters

7 and

9 which

are not inconsistent

with and

at least as stringent as RCRA requirements.

Any other

conflicts which may crop up are to be resolved in favor of the

RCRA rules, unless the Board should decide in an additional

rulemaking to impose its requirements instead upon a finding

that they are not inconsistent and at least as stringent.

This is discussed in greater detail elsewhere.

Section 700.104(e)

states

a general intent to combine

paperwork requirements, in particular to allow the use of only

a

single

manifest.

Sections700.l04(f), 700.104(g)

and 700.104(h)

have been

added to the September 16 rules

to state additional general

principles concerning combination of existing rules with the

RCRA rules.

Section 700.104(f)

states that the Board intends the

generator to make the first determination as to whether

a

waste

is hazardous and, if so, whether it is subject to exemp-

tion under Chapter

9 or the RCRA rules.

This combines §722.111

with Rule 501 of Chapter 9.

45—327

---

2-

Section 700.104(g)

states that the Board intends to provide

means whereby the status of un.manifested waste can be trans~-

mitted to subsequent handlers.

These extend to Chapter

9

waste the suggestions made in the federal regulations concerning

certification of unmanifested waste.

This is presently missing

from Chapter 9 altogether.

The greater complexity now increases

the need for such a medhanism.

The federal regulations

are vague as to whether a certifi—

cation protects the acceptor of the waste.

Any attempt at

clarification risks adoption of additional provisions without

complying with S22.4(b).

The Board has therefore provided

only a statement of intent which can be quoted in the event

an enforcement occurs against

a person who has relied on a

certification.

Section 702.104(g)

states that the Board intends that

persons handling manifested waste after the generator should

be able to accept it without inquiry as to whether it is

Chapter 9 or RCRA waste.

No penalty should be incurred if

waste is properly handled as though it were

RCRA

hazardous.

The Board has effectuated this by two methods:

wherever

possible the transporter and HWM owner and operator have been

instructed to comply only with the RCRA rules; provisions have

been inserted deeming them in compliance with Chapter

9 where

they have complied with the RCRA rules.

Interim Status

(~700.105)(PC2,

PC3, PC4).

Under the

federal scheme the disposer operating requirements of 40 CFR

Part 265 apply only to persons who have interim status through

compliance with 40 CFR §122.23.

Persons who do not have interim

status are required to comply with 40 CFR Part 264.

Under the Illinois scheme all

persons

involved

in

hazardous

waste disposal must have a

RCRA

permit

S21(f)

(1)

of the Act.

The Board has deemed these issued under conditions similar to

federal interim status (~5700.105 and 700.109).

Everyone is

required to comply with Part 725, regardless

of interim status

(S725.l0l).

This latter is necessary because the Board has not

yet adopted Part 724, which is to correspond with 40 CFR Part

264; otherwise there would be no operating requirements applic-

able to persons without interim status.

A reference has been added to §700.105(a)

to make it clear

that the permits deemed issued are those required by §21(f) (1)

and issued pursuant to §39(c)

of the Act as amended by P.A.

82-

380

(PC2)

One commenter noted that Part 700 will not become effective

until Phase

I authorization is received (PC2).

PC2 asked for an

immediate effective date for §700.105 because the permit require-

ment of §21(f) (1)

appears to be already in effeôt.

The Board

45—328

---

declines

to

do this.

The

RCRA

permit

required

by

§21(f)

(1)

is

~efined

as

a

permit

issued

by

the

Agency

pursuant

to

USEPA

authorization under RCRA

~

3 (qq)I.

It would be beyond the

Board’s authority to deem these permits issued prior to authori-

zation.

The Board has however added §700.109 providing that

persons with- federal interim status are deemed in compliance

with §21(f) (1)

from the effective date of P.A.

82—380 through

receipt of interim status.

Among the conditions for interim status

is

a requirement

that a “Part A” application be submitted for the facility pur-

suant to 40 CFR §122.22.

The Board is not at this time adopting

regulations comparable to §122.22.

This is intended to be

incorporated by reference as of the adopted date of §700.105,

or the date of its last amendment.

40 CFR §122.22(c)

contains

provisions allowing the filing of a Part A within certain time

limits after any modification of the regulations which would

bring someone under RCRA for the first time.

The Board intends

to e~press1yincorporate these by reference

(PC2)..

Section 700.105(a) (3)

has been modified to remove a

reference to USEPA review of Part A applications.

This will

be done by the Agency

(PC4).

Three commenters contend that the December

3 proposal

still did not adequately provide a “grace period” for persons

coming under the RCRA rules for the first time

by

reason of

change of facilities, new waste analysis or change in regula-

tions

(PC 6,

7,

8).

USEPA amended its rules to allow

a grace period.

However,

as discussed above, the amendments concern when a Part A appli-

cation must be

filed

(40 CFR §122.22).

If the Part A is filed

on time,

federal interim status obtains

(40 CFR §122.23(a) (2)1.

The Board intends to incorporate

these provisions by reference.

However,

the

December

3,

1981

rules did not include amendments

and a comment to 40 CFR §122.23(a) (1) which appear to relate

to this problem

(45 FR 76,635, November 19,

1980).

This

language

has

now

been

substituted

(PC6).

It has been pointed out that §700.105(e)

(2)

contains

an erroneous reference to 40 CFR §122.22(a)(3).

This has been

changed to 40 CFR §122.22(a) (5).

The error exists also in the

1981 CFR (PC6)

The related interim status problem concerns §725.101(b).

This arises because of the Board’s decision to impose the opera—

ting standards on all facilities regardless of interim status.

It now appears that the federal rules utilize the “grace period”

for interim status to give

time. for facilities to come into

compliance with the interim status standards corresponding to

Part 725

(PC6,

7,

8).

Accordingly,

the Board will modify

45—329

---

I

4

§725.101(b)

to deem persons in compliance with Part 725 from

the time they first became subject to it until they acquire.

interim status, provided the interim status is ultimately

obtained.

Effective Dates

(S700.106) (PC2).

The immediate effective

dates for the listings and definitions have been deleted:

Parts

700 and 720 through 725 will become effective on receipt of

Phase

I interim authorization,

The immediate effective dates

created an entirely new area of confusion which was unwarranted

The Act states that the federal listings still control the

definition of “hazardous”, so there

is no compelling reason

for making the li~tingsimmediately effective.

The electric utilities ask that §700.109 be made effective

immediately.

This provides that persons with federal interim

status

are. deemed in compliance with §21(f) (1)

of the Act from

its effective date to the date of interim authorization.

As

proposed, §700.109 will become effective on the latter date,

and hence will have only retroactive effect.

The electric utilities have obtained from an Appellate

Court a stay of several provisions of the September 16 rules,

including §700.105, which will grant interim status after

interim authorization.

The stay may have the effect of pre-

venting interim authorization by USEPA if it decides that the

Illinois rules are therefore not effective.

As noted in connection with §700.109,

the General Assembly

probably did not intend to shut down hazardous waste treatment

and disposal pending interim status.

However, the lack of

a

phase-in provision for the permit requirement also indicates

that the General Assembly contemplated prompt adoption of a

RCRA program.

If industry blocks interim authorization,

enforcement of §21(f) (1) may be appropriate.

If §700.109 were

made effective,

it would remove an incentive for industry to

allow this program to be adopted.

Severability (~700.107).

If any section of Part 700

is

declared invalid on appeal the entire Part will be inapplicable

until the Board is able to review and revalidate it.

During

this period of time it will be necessary for the public to

comply with the letter of Chapters

7 and

9 as well as the RCRA

rules and to determine at their own peril what provisions are

not inconsistent and at least

as stringent.

One comrnenter characterized §700.107 as

an “in terrorem

device” to prevent appeals in that it invalidates all of Part

700 if any part is stricken

(PC6,

7).

Section 700.107 is in

response to comments received on Part 700 following the Septem-

ber 16 rules.

Most of the arguments directed at provisions in

Part 700 are really directed at the authority for the entire

Part.

45—330

---

—15—

The Board has construed §22.4 as requiring continued

application of Chapters

7 and 9.

Within that constraint the

Board has been as generous as possible in eliminating unneces-

sary rules.

The Board has indeed added rules and language

at

the request of the same

commenters

who

contend

that there is

no authority for Part 700.

The

Board

recognizes

that

a

reviewing

Court

would

have

authority to review §700.107 itself.

Its intent is to insure

that

both

the

perceived

benefits

and

burdens

are

placed

before

the reviewing Court at the same

time.

This

should

avoid

a

situation where a single section is stricken by an argument

which goes to the foundation of the entire Part.

Commenters

have

objected to §700~107as removing the

interim

status

provisions

as

a

penalty

for

successful

appeal

of any other provisions of Part 700

(PC6,

7).

The Board

acknowledges

that

§700.105

is

different

from

the

remainder

of Part 700 in that it is

a part of the RCRA phase

I program,

while the other rules relate to interaction of the RCRA rules

with existing programs and other transitional problems.

The

Board will

modify

the

proposed

language

to

allow

§700.105

to

withstand successful appeal of other sections.

References to Federal Rules

(S700.108) (PC2,

3).

Refer-

ences to federal rules and other materials are to the material

as of the date of adoption of the section which refers to it.

If the section is amended by the Board, the reference is deemed

updated to the date of the amendment.

The Administrative

Procedure Act has been recently amended to prohibit adoption

by reference of future amendments.

It also now allows refer-

ences without filing copies

(SB 508).

The electric utilities have suggested that §700.108 be

reworded to specify references to “the Code of Federal Regula-

tions and other materials referred to but not reproduced.”

The

section

has

been

so

modified.

In addition,

it has been made

applicable to the entire Chapter rather than certain specified

Parts.

This will avoid the need to amend §700.108 each time

a

new Part is added.

Permits

Prior

to

Authorization

(S700.109)

(PC2).

Section

21(f)

(1)

of

the

Act

requires

a

“RCRA

permit”

of

hazardous

waste

disposers.

This

was

immediately

effective,

but

there

was

no

administrative mechanism for issuing the permits;

indeed, §3(qq) defines “RCRA permit”

as

a permit issued pursuant

to USEPA authorization.

Section 21(f) (1) therefore apparently

prohibits most hazardous waste storage, treatment or disposal

until authorization is received, at which time permits will be

deemed issued under §700.105.

The Board finds that this prohibi-

tion would lead

to a serious public health threat,

contrary

to the stated legislative intent of §20(a) (5).

It would also

45—331

---

—16—

conflict with

the

existing federal scheme which

allows

these

activities pursuant to interim

status

under

40

CFR

§122.23.

The Board

has

therefore

added §700~.l09which deems

persons

with

federal interim status in

compliance

with

§21(f) (1)

until

authorization is received from USEPA.

This is intended to

become effective with interim authorization and will have the

effect of retroactively excusing noncompliance with the permit

requirement

(PC6).

Definitions (S700.201 et seq.) (PCi,

2).

Definitions of

“Operating Requirements” and “Permits” have been provided in

general and with reference to Chapter

7, Chapter 9 and the RCRA

rules.

Operating requirements are those which impose duties on

the public other than

the

requirement

to

obtain

a

permit.

These

include

methods

of

landfill

operation,

completion of manifests,

display of numbers, labeling of containers and similar require-

ments.

Permit requirements include the duty to obtain a permit as

well

as

attendant

rules

such

as

completion

of

an

application.

Most

permit

rules

impose duties on the Agency relating to

review,

issuance and conditions..

Chapters

7,

9 and the

RCRA

rules all exhibit a split

between

permit

and

operating

requirements.

The

structure in

§700.103

contemplates

eventual

placement

of

the

RCRA

permit

requirements with other waste permit requirements in a sub-

chapter apart from the operating requirements.

This will tend

to produce consolidated permits.

It also reflects the federal

organization.

The definitions specify which Parts

are permit or operating.

The permit/operating split is not perfect in Chapters

7 and 9.

There are rules on permit applications in the operating require-

ments.

The general definitions are in the rules to avoid any

unfair result from incorrect classification of these.

Pursuant to the utilities’

comment the definition of

“operating requirements” will be modified to read as follows

(PC6)

“Regulations ~hich apply directly to the public other

than requirements to obtain a

permit

and- other require-

ments

concerning

application

for,

modification of,

conditions to be included in and issuance of permits.

Conflict

(PC2).

The

Board

has

reviewed

Chapters

7 and 9

against the RCRA rules.

Entire groups of rules sometimes seem

to be not inconsistent and at least as stringent.

The Board

has provided for cumulative application.

There is a possibility

that in practice some provision will require an inconsistent

act of

sortie person,

~hese unresolved inconsistencies are termed

45—332

---

conflicts.

The Board usually provides that the RCRA rules

control.

Any

inconsistent

provisions

which

have

escaped

notice

are probably inconsequential.

In some instanco~the

definitions

in

the

RCRA

rules

are

not the same as those in the Illinois

Act,

Chapters

7

and

9.

Some examples are “manifest”~

~waste~

and “hazardous hospital

waste”.

Any attempt to change the RCRA definitions to corres-

pond with the Illinois definitions could change the way the

RCRA rules relate to each other and change the scope of the

whole program.

This would result in

a program which is not

identical in substance.

The Board has therefore not attempted

to adjust the definitions,

Each set of rules will be read

with it~own definitions.

Conflicts

can arise only at the

level where rules

are applied to control actions by the public.

Adjustments are to be made in application, not definitions.

The electric utilities

have

objected

to the exemption of

definitions from the definition

of

“conflict”

(PC6).

The steel

companies

on

the

other

hand have

endorsed

the principle that

the

definitions

in

the

various sets should be read separately,

while continuing their

objections

to

applicability

of the

Chapters

(PC7).

The

Board

will ~f:opi:

the

definition of “conflict”

as proposed.

It is obvious that

teading

the

definitions

from

Chapter 9 into the

RCRA

rules

would

render

the

RCRA

rules

not

identical in substance with the federal.

RCRA

Rules

(PCi,

2).

“RCRA

rules”

are

Board

rules

“intended

to be” identical in substance

with

USEPA

rules.

This

has

been

added

to

avoid

effect

on

the

definition

if some of

the

rules

were

held on appeal to be not identical

in

substance.

The

rules

might

therefore become invalid,

but

they

would still be a part of the

“RCRA

rules”.

Subject

~o

(PC2).

A person is “subject to”

a set of

rules

if he would have to comply with thit set of rules it it were

read apart from other rules.

This

avoids circular definitions

which would arise frequently because Part 700 contains

so many

rules which determine who must comply.

GENERATORS

Generator Permits

*

(S700,301),

The Board has determined

that there are no permit programs for generators in Chapter 7,

Chapter

9 or RCRA,

and hence. no inconsistencies.

Generators

are

cautioned

to

obtain

an

ID

nin~ber from

TJSEPA.

*The

headinqs

are

only

rough

guidelines.

For example, ID

numbers

have

been

treated

as

permits because

of

their close

relationship to

Chapter

~ perr~its,although they

clearly

are

not permits

under

the RCRA rules

or

Chapter

9.

---

Generator

~rati

es~

Chapter

7

imposes no

known

operating

requirements

ot

qa~?rators.

Chapter

9

imposes duties

relating

to

preparation

of

manifests

as

dis-

cussed

below.

*

RCRA

imposes

var ~ous

duties

concerning

packag-

ing, labeling,

identification~~

etc.,

(Part

722),

The

Board

has

not

found

any inconsistencies b~wean

~hapters

7

and

9

and

the

RCRA rules or any provisions whioi’~

are

not

at

least as

strin-

gent.

Section

700.302

therefore requires

cumulative

applica-

tion,

but

provides

a

RCRA override

should

some

latent

inconsis-

tency be noted later.

Generator

Manifests,

(S700, ~O3)(PC2),

Chapter

9 requires

the generator to send a copy of the

manifest

to

the

Agency.

The federal RCRA rules require annual reports, retention of

records

and

discrepancy

reports,

but

not

a

copy

to

the

Agency.

Otherwise

the

manifest

requirements

are

essentially

identical.**

The Board finds that the Agency copies are not

inconsistent

with

the

RCRA

rules

and

at

least as st.::Lnqent~

Rather

than

requiring

the

public

to

comply

with

both

Charter

9

and

RCRA

rules, the

Board

has

made

a

slight

addition

to

the

RCRA

rules

and

exempted

generators

from

the

Chapter

9

~tf~ost

requirements.

This

gets

to

the

same

result

with

less

lort,

Section

700.303

(b)

co:mtained

a

provision

requiring

genera-

tors

subject

to

chapter

9

to

compIm’

with

the

RCRA

manifest

requirements.

This

has

been

deleted

because

it

would

appear

to

extend

the

federal

annual

report

requirements

to

non—

hazardous

special

waste

generators,

a

result

which

was

not

intended.

However, the second sentence is intended to apply

to non-hazardous special waste:

compliance with the RCRA

manifest

requirements

is

deemed

compliance

with

Chapter

9.

Generator

Small

Quantity

Exemptions

(~700.304),

Chapter

9

has

a

100

kg/mo.

exemption

for

all

hazardous

waste

while

the

RCRA

rules

have

a

1

kg/mo.

exception

for

acute

hazardous

waste

and

1000

kg/mo.

for

other

hazardous

waste.

Chapter

9 is there-

fore less stringent with respect to acute hazardous waste, but

more

stringent

for

hazardous

waste

in general.

The Board has

resolved the inconsistency by providing that for acute hazardous

waste RCRA alone controls with monthly quantities of

1 to 100 kg,

but that RCRA and

Chapter

9

are cumulative for quantities in

*Manifests

are.

“operating

requirements~’

but

are

discussed

separately

from

other

operating

requirements

for

clarity

ES 700

.

302

(e)

1.

**The September 16 rules did not specify

when

the manifests

were to be sent to the Agency.

Rule 501(B)

specifies “within

2

working

days”..

Section

726.234 (a) (4)

has

been

revised

accordingly

(PC2~.

---

—19—

excess of 100

kg..

For regular hazardous waste Chapter

9 alone

controls quantities ~f 100. to 1000. kg, but Chapter

9

and

RCRA

are

cumulative

for

quantities.

greater

than

1000

kg.

Section

700.304(c)

and 700.304(d) negate possible incor-

rect interpretations which. would apply exemptions from one set

of rules to

the

other.

For example,.. the Board does not intend

S72l.105 to exempt 800 kg of regular hazardous waste from

Chapter 9 regulation; nor does the Board intend Rule 210 to

exempt a generator of 80 kg of acute hazardous waste from the

RCRA rules.

Section 700.304(e)

requires the generator to read Chapter

9

and

the RCRA

rules

separately to determine

if

he is subject

to neither, either or

both

by their

own

terms.*

Specific rules

on the cumulative effect on generators are found in S5700.301-

700.303.

The generator’s determination of type of waste

and

monthly quantity also affects applicability of regulations

when the waste is in the hands of the transporter or disposer

TRANSPORTERS

Transporter Permits

(S700.401).

Chapter

9 requires trans-

porter permits; RCRA rules do not

(Rule 201

and

Part 723).

Chapter 9 permits are probably required of everyone hauling

RCRA hazardous waste; however, the

small

quantity

and

transporter

exemptions

of Chapter

9 will continue to apply even if the waste

is RCRA hazardous.

Transporters must obtain Chapter

9 and

USEPA

identification numbers as required in Chapter

9

and RCRA rules,

The existing Chapter

9 permit requirement is not incon-

sistent with the RCRA rules and the Board finds

it to be

least as stringent.**

Section 700.401(a)

requires transporters to obtain both

USEPA

and

Chapter 9 identification numbers.

The USEPA number

is unique nationwide.

The Board cannot eliminate this number

without causing confusion on manifests

for waste entering or

leaving the state.

The Chapter

9

number

is closely associated

with the Chapter 9 permits

and

is also required of haulers who

haul only non-RCRA hazardous special waste.

Elimination of

this number could also cause confusion

and

would interfere

with the Chapter 9 permit.

The Board therefore finds that

the numbers are not duplicative and will continue with both.

*Section 700.304(e)

has been revised.

In the September 16

rules it appeared to contradict other provisions of

the

**p,A.

82—380 expressly requires transporter permits

S21(g)

(1)

45—335

---

—20—

However, the Board would be

receptive

to

a

proposal

to

combine

the ID

numbers,

Transporter

Operating

Requirements

(~700.402) (PC2).

Sections 700.40.2(a)

and 7G0..402(b) require transporters subject

only to the RCRA rules or Chapter

9 to comply with each respec-

tively.

Where a transporter

is

subject

to both they are cumu-

lative

(S700.402(c).

Special rules are provided for manifests

1S700.402(e)i

Section 700.402(d)

requires transporters with Chapter 9

permits to placard and display their Chapter 9 number

regardless

of whether a load is subject to Chapter

9 or

RCRA

rules.

An

example would be

a monthly load of

80 kg of acute hazardous

waste.

If

the

transporter

had

a

Chapter

9 number he would be

required to display it even though the load is Chapter

9

exempt.

Rule 401 is not conditioned on whether a given load

is subject to Chapter 9.

This is a reference in an area which

could be confusing to the public.

Transporter

Manifests

(S700,403).

The Board finds the

manifest requirements of Chapter

9 and

the

RCRA

rules to be

nearly identical.

Compliance

with

the RCRA rules is

deemed

compliance with Chapter 9.

Transporter Small Quantity Exemptions

(S700.404).

Section

700.404(a)

restates

a

rule

in common between Chapter 9 and the

RCRA rules:

the small quantity exemptions are generator

centered.

For example,

a transporter may pick up two monthly

loads of 90 kg each of special waste from two generators.

Ne

Neither load requires a manifest because the generators are

exempt

(Rule 210).

A manifest does not become necessary by

reason of combining the loads to 180 kg.

The same rule applies

to RCRA waste, although with different exemption levels for

regular and acute hazardous waste.

There is however a difference in the relationship of the

Rule 210,

211 exemptions to the Chapter

9 permit requirements

and the

RCRA

small quantity exemptions to the USEPA ID number

requirement

(~723.ll2). This is explained in §700.404(b).

The Chapter 9 permit requirement

(Rule 201)

contains an

exemption referenced to the transporter exemptions

(Rule 211),

not to the generator-centered small quantity exemption

(Rule 210).

Accordingly, contract haulers who carry only Rule 210 exempt

waste must nevertheless have Chapter

9 permits.

However, if

the generator carries

his own waste, no permit is required.

The USEPA ID

number

is handled differently.

The

USEPA

exemptions apply to all of Part 723, resulting

in

exemption

from

the ID number

in the

comparable

situation.

45—336

---

—21—

Sections

700.404(a)

and 700.404(b)

are merely cross

references which compare and contrast Chapter 9 and RCRA

rules.

These are intended to aid the regulated community on

a minor issue which

could

prove confusing.

Section 700.404(c)

in the September 16 rules has

been.

changed to a comment.

This is

a suggestion that transporters

follow the suggestion in the RCRA rules to obtain certifica-

tion from the generator before accepting waste claimed to be

exempt under Chapter

9 as well as under the

RCRA

rules.

In

any enforcement action this could be offered in mitigation

pursuant to §33(c)

of the Act.

DISPOSERS

Owner/Operator Permits

(~700.50l). Section 700.501(a)

contains cross-references to permit requirements tS2l(f) (1)

of the Act, §700.105 and §725.101:1.

These are discussed

elsewhere.

Section

700.501(b)

states

that

HWM

owners

and operators

must

obtain

Chapter

7

permits

if

they

are

subject to Chapter 7

(Rules

201

and

202).

This

interpretation

is

disputed

by

commenters,

as is discussed elsewhere.

This discussion

assumes that §22.4(b) prohibits repeal of existing Chapter 7

requirements without a hearing as

is discussed above.

It

interprets

§22.4(b)

as directing the Board to review its

existing programs for provisions which are not inconsistent

with the RCRA rules

and which are at least as stringent.

Existing Chapter

7 expressly regulates hazardous waste

(Rule 310).

The permit requirements of Rule 201 and 202 are

interpreted as cumulative with the permit required under

§21(f) (1), deemed issued in certain cases under

§S700.l05

and

700.109.

The federal RCRA rules do not presently require permits

but will do so in the future.

The Chapter 7 permit require-

ments are not inconsistent with either the present or future

federal rules, or with the RCRA rules adopted by the Board.

The additional permit requirement is at least as stringent

as federal RCRA requirements.

Rulemaking pursuant to §22.4(b)

will be needed to eliminate this permit requirement after a

§21(f) permit program is

in.

place.

Section 700.501(c)

contained a reference to new legisla-

tion

making

it clear that the Board can impose operating

requirements on general waste disposal facilities which are

exempt from the permit requirement by statute.

Section 700.501(c)

required compliance with existing operating requirements in

Part III of Chapter 7.

However, the Board has previously held

45—337

---

—22—

these to be inapplicable in this

situation

(Reynolds

v.

IEPA,

PCB 79—81, November

19,

1981).

Section

700.501(c) will there-

fore be deleted.

Section 700.501(d)

alerts

the.EWM

owners

and

operators

to

the

need

to

obtain

a

USEPA

identification

number.

Owner/Operator

Operating

Requirements

(~700.502)..

Section

700.502(a)

provides that

owners

and operators subject to RCRA

but

not

Chapter

7

comply

with

RCRA

only.

Section 700.502(b)

states the complementary rule:

landfills disposing of non—RCRA

hazardous special waste must comply only with Chapter

7 require-

ments.

Section 700.502(c)

covers the mixed case where waste is

subject to both Chapter

7 and the RCRA rules.

The operating

requirements of Part III of Chapter 7 and Part 725 are cumula—

tive.*

In the event of conflict,

the RCRA rules control.

The Board has examined the operating requirements of Part

III and Part 725.

They are in all respects consistent and

Part III is at least as stringent.

The Board has therefore

required cumulative application.~ However, in the event of

latent conflict,

the Part III rule may be disregarded, whether

it is more stringent or not.

Section

700.502(d)

contains

a

reference

to

Subpart

A

which requires compliance with other chapters on their own

terms.

For example, open burning of explosive waste requires

a

variance

under

Rule

505 of Chapter 2:

Air

Pollution.

Section 700.502(e)

provides that “operating requirements”

does not include manifest requirements

as used in §700.502.

These are provided for in a separate section.

Operator Manifests (S700.503).

Section 700.503(a)

warns

that

the rules on handling manifests in the federal rules have

been adjusted:

the HWM operator must forward a copy of the

manifest to the Agency

(S725.17l).

The requirement to send a

copy to the Agency

is

inserted

into

language

requiring

a

copy

to the generator within

30 days of delivery.

This

is very

similar to the Chapter 9 requirement of “at the end of the

month.”

The federal time frame will be used to reduce friction.

Section 700.503(b)

allows the HWM operator to comply with

the RCRA manifest requirements regardless of whether the waste

*p.art III does not however cover the range of facilities

covered by Part 725.

For examplefl open burning of explosive

waste is not subject to Part III.

Section 725.502(c)

is not

intended to expand the scope of Chapter

7.

45—338

---

—23—

is Chapter

9 or RCRA.

Compliance with RCRA is deemed compliance

with Chapter 9.

This is so

the.

operator

will

not

have to know

facts which are in the

generator’s

knowledge.

The Board intends

to allow optional compliance with the RCRA manifest require—

men.ts

even

if

the

generator

knows

he

is dealing with non-RCRA

Chapter

9 waste.

As §700.503(b)

and

(c) were written the operator was

obliged to comply with Part 725 manifest requirements for

Chapter

9

waste.

This

could

impose

annual

and discrepancy

reporting on operators receiving only

non—RCRA

special

waste.

The rules have been modified to make

this

optional.

Section 700.503(d)

has been changed to a comment.

This

extends to Chapter 9 waste USEPA’s recommendations

on.

certifi-

cation of exemption.

The Board also recommends that unmanifested

waste

reports

be

filed

even

when

the

waste

is Chapter 9

exempt.

This

again

will

allow

the

operator

to

protect

himself

in

a

situation where the generator has essential facts.

Small Quantity Exemptions

(5700.504) (PC2).

The small

quantity

rules

relate

directly

only

to

generators.

If

the

waste is exempt in the hands of

the

generator,

it is exempt

from Chapter 9 and Part 725.

However, there is no small

quantity exemption

in Chapter

7.

Landfilling of hazardous

wastes always requires a Chapter 7 permit with specific mention

of the hazardous waste

(Rule 310).

The

material

concerning

certifications and urimanifested

waste

reports

has

been

made

a

comment.

Hazardous

(Infectious)

Hospital

Waste

(5700.601).

No

comments

were

received

concerning

hazardous

hospital

waste.

The

Board

will,

however,

briefly

discuss

these

rules.

Hazardous

hospital

waste,

as

defined

in the Act, focuses

only

on

hospital waste which is infectious in nature.

The

Board is given rulemaking authority, which has been exercised

in

Part

IX of Chapter 9.

Infectious waste generated by a

hospital

may

not

be

placed

in

a

landfill

unless

and until it

has

been

rendered

innocuous

by

incineration

or

sterilization.

The determination as to whether “hospital waste” is

also

RCRA hazardous must be made in accordance with Part 721.

Part

721

does

not

address

the “infectious characteristics” referred

to in the federal Act 51004(5).

Such waste becomes RCRA

hazardous

only

by

reascrn

of bthe~tharactéristics ~uch~as chemical

toxicity.

Hazardous hospital waste is always

a special waste subject

to Chapter 9

(53 of the Act).

If it is also RCRA hazardous,

45—339

---

—24—

Chapter

9

and

the RCRA rules are cumulative as with the

ordinary

hazardous/special

waste.

GENERAL (Part

720)

Federal Regulations Not Adopted

(5720.102) (PC3,

7).

The

Board has not adopted regulations corresponding to 40 CER

§260.2

governing

availability

and

confidentiality of informa-

tion.

The Board intends that this be governed by Illinois law,

including

Sections

7

and

7.1

of

the

Act

and Procedural Rule 107.

A reference to this effect has

been

added.

Definitions

(5720.110).

There are several typographical

errors in the definitions which have been corrected without

comment.

There

are

also

a

number

of

substantial

errors.

These

appear

to

derive

from

incorporation

of

a

set

of

proposed

federal

definitions

which

have

not

yet

been

adopted

(46 FR 11,170,

February 5,

1981)

(PC3).

Aquifer

(PC3).

Changes

have

been

made

to

correspond

with

federal definition.

Cased

injection

well

(PC2, 3)~

Proposed

federal

definition,

not

yet

adopted1

has

been

deleted.

Decomposition by-product

(PC2,

3,

7).

Proposed federal

definition, not yet adopted, has been deleted.

Disposal

(PC3).

Changes

made to correspond to federal

definition.

Disposal Facility (PC3).

Changes made to correspond with

federal

rules.

EPA

Identification

number

(PC3).

Changes

made

to correct

typographical error and to correspond with federal rules.

Injection well (PC3).

Cross reference to “underground

injection” added to correspond with federal rules.

Injection Zone and Land Disposal Facility

(PC2,

3).

Pro-

posed federal definitions, not yet adopted, have been deleted.

Land

Treatment Facility

(PC3).

The phrase

“such facilities

are disposal facilities

if

the.

waste will remain after closure”

added to correspond with federal definition.

Landfill

(PCI,

3).

Language deleted to correspond with.

federal rules.

New

Hazardous

Waste

Management

Facility

(PC3).

Date

has

been changed from that

specified

in.

the

federal

rules,

October 21,

45—340

---

1976 to November 19, 1980~ The latter date was specified in

1980

amendments

to

the RCRA act

153005

(e) (I),

The federal

rules are

wrong

on

this point and inconsistent with the defini-

tion

of

“existing

hazardous

waste management

facility”.

Pile

(PC3),

Language modified to

correspond

with federal

rules.

Plugging

(PC2,

3).

Deleted

to

correspond

with

federal

rules.

Publicly

Owned

Treatment

Works

(PCI,

3).

Reference

to

33

USC

1362(4)

added~,

Reaction

byproduct

(PCi,

2

3,

7)

Deleted

to

correspond

with

federal

rules,

Surface

impoundment

~

The

phrase

~or seepage facility”

deleted to correspond

with

federal

:ruies~

Surficia1AguiferandidercroundJ~ee~as

(PC2,

3).

Deleted to correspond

with

federal

ruies~

Underground

Injection

(PC3)

Modified

to

correspond

to

federal

rules.

Wastewater

Treatment Unit

(PCI,

3).

Reference

to

33

USC

1342

or

1317(b)

added.

Well and Well Injection

(PC3)

Modified to correspond to

federal definitions.

Zone of Containment

(PC3)

Deleted to

correspond

to

federal

rules.

References

5720,111(b),

These are also available at the

Illinois State Library in Springfield.

Rulemaking

(5720.120) (PC2,

3).

Commenters

objected

to

§720.120 of the September 16

rules,

This provided that modifi-

cation of the rules,

including delisting of a specific waste

from

a specific source and approval of alternative equivalent

testing methods, required variances or rulemaking petitions

filed with the Board.

PC2 and PC3 asked for adoption of the

simpler procedures in the federal rules

(40 CFR §260.20, 260.21

and 260.22).

The Board

has

modified

the

provisions; however,

the

exact

federal

language

is

not

compatible

with

the

Illinois

Act.

Section 720.120 now provides that there are two methods by

which. these rules can be modified~. Section 720,120(a)

provides

for

adoption

of regulations

identical

in

substance

with future

USEPA amendments to its rules

f522~4afl,

section

720,120(b)

45~34i

---

provides for

adoption

of

state

requirements

which are not

inconsistent with. federal

requirements

and are at

least

as

stringent

1522.4

(h)

Section

720,120(a)

requires

that

persons

petitioning

for

future “identical in

si:ibstanc&~

regulations

advise

the

Board

of

all

USEPA

modifications

since

the

last amendment

of

the

rules.

It

is

necessary

to

bring

all

the

rules up to date with

each amendment to avoid

the

possibility

of

accidentally deleting

a subsequent

amendment while trying to ~o back to pick up an

earlier amendment,

The subsequent amendment will not appear in

the earlier Federal Register text which would

he

relied

on

in

adopting a prior

amenclmenti~

Three

coinmenters

requested

that

the

Board insert into

§720.120

language

obligating

itself

to

propose

future

amendments

on its own and to adopt

them

within

180 days of

promulgation

by

USEPA

(PC6,

7,

8)

The

ccnsnenters

contend

that

this

is

required by

§22.4(a)

of

the

Acts

There

actually are two problems:

what does the

Act

require

with

respect

to

future

amendments;

and, what does the

Act

require

tyway

of

procedures?

Section

22.4(a)

reads

in

part

as

iol:Lows:

“The

Board shall adopt

within

130 days

regulations

which are identical in

substance

to

federal

regula-

tions.. .as amended.’~

Everyone agrees that this requires adoption

of

a

set

of

regulations reflecting

the

federal rules

as amended, within

180

days of the effective date of

P.A.

82~380, The comrnenters argue

that the language

further

requires

the

Board to

summarily

adopt

any amendments within 100 days

after

promulgation by USEPA.

They urge that the

180

days he given a double meaning.

These commenters pointed out,

in

connection

with

§700.108,

that

SB

508

now

prohibits

regulatory

agencies

from adopting

future federal amendments by reference

(PC2,

3).

Here they

argue

that

the

legislature

itself

has

required

similar

incor-

poration of future amendments.

The question of

whether

P.A~82~-380requires adoption of

future

amendments will he

decided

when

such, amendments

are

before the Board,

it

is

clear

that

P,A~

82-380 does

not

require

adoption

of

a

procedural

rule

on

this

point.

If

the

statute

requires a race with USEPA

then

a

race

is required.

The presence

or absence of a

procedural

rule

cannot

change this.

Section 22.4(a)

is

silent

as

to

who

must

propose

regulations.

Section 28 provides

in

part

as

foilows~:

---

—27—

“Any

person

may present written

proposals

for

the

adoption,

aniendmer~t~

or repeal

of

the Board’s regula-

tions, and

the

Board may

make

such. proposals on its

own

motion.”

Section 2~allows adoption of procedural rules governing regula-

tory proposals.

Section 720.120(a)

is fully consistent with

the Act, allowing

proposals

by

the

Board, Agency and public.

Alternative Euivalent T~sting

Methods

(5720.121) (PC2,

3).

The Board declined

to adopt the USEPA regulations because they

did not appear

workable in the Illinois

system,

P.A.

82—380

has continued the

existing Illinois system in which the Board

adopts regulations and grants variances

while the Agency issues

permits.

40 CFR §260,21,

if adopted, would have to confer

decisional authority on either the Board or Agency.

In the

latter case it would appear to

confer

variance or rulemaking

authority on the Agency.

This is contrary to existing Title IX

of the Act and to the recent amendments to §22,4 which grant

rulemaking authority to the Board.

In the former case it would

appear to allow Board rulemaking or variances without the

procedural steps required in the Act, such as notice and

hearings.

The variances

would

be permanent contrary to Title IX

and could be granted without a showing of arbitrary or unreason-

able hardship.

40 CFR §260,21

specified procedures for alternative testing

methods

before

USEPA.

It

appears

that

this

contemplates

actual

revision

of

the

testing

methods

which

define

the

scope of the

rules

(Part

721); initial determination by a generator of appli-

cability of the regulations

(Part 722);

and testing methods

used by the waste recipient to confirm the identity of the

waste

(Part 725).

Some of these appear to be within the Board’s

rulemaking authority, while others resemble the Agency’s

enforcement and

permit

authority.

New §720.121 references new §720.120.

This makes

it clear

that modifications

in testing method rules made by USEPA may be

proposed

as

Board

regulations.

Other modifications must be made

by

regular

rulemaking

pursuant

to

§720.120(b).

Section

720.121(a)

contains a disclaimer that the Agency

cannot

alter

the

universe

of

regulated

wastes.

This

is to avoid

any

interpretation

that the limited authority to alter testing

methods

given

the

Agency

in

the

following

paragraphs

allows

it

to modify the scope of

the

regulations by changing the testing

methods in Part 721.

This

is

reserved

to the Board.

The

Board

has retained

~Rulemaking

Petitions”

as

the

Subpart

heading.

This

is

from

the

federal

rules,

The

heading

is

not

intended to infer that

the

Agency

is

granted

rulemaking

authority.

Rather, the Agency~sauthority is stated in contrast to the

Board’s rulemaking authority.

---

—28—

Section 720.121(b)

as

modified

authorizes the Agency to

approve alternative

equivalent

testing

methOds

applicable

to

a given person and a given wastes’tream.

The Agency is

charged

with the duty to enforce

the

Act.

It is

the

Agency to which

the generator

initially

must

look

for an interpretation as to

whether the RCRA

rules

apply

to

it or not.

Section 720.121(b)

will give the Agency flexibility on the type of proof it may

accept.

Although it can consider alternative testing methods,

it can only determine that a waste is not subjedt to the RCRA

rules if it is satisfied that it would not be if the test

methods in Part 721 were indeed applied.

The test methods

must be equivalent.

Section 720.121(c)

contains a disclaimer to the effect that

the testing methods

of

Part

721

are not intended to be required

for

field

use.

Once

a

determination

has

been

made

that

the

waste is subject to

the

rules,

any

sort of test,

including common

sense, can be used to

identify

the

waste.

Where the facility

is subject to a permit,

the

Agency can specify testing methods.

Appeal may be taken to

the

Board

if the Agency refuses to permit

equivalent testing methods.

Section 720.121(d)

references

40 CFR §260,21.

Persons

seeking approval of

testing

methods from either the Board or

Agency should supply the information required by USEPA.

CACI requested that the Board “adopt the simpler procedure

of

40

CFR

§260.21”

(PC8).

This

would

involve

rulemaking

with-

out

compliance

with

the

notice

and

econon~ic impact

study

provi-

sions of §527 and

28 of the Act.

The

Board

has

attempted

to

copy

the

USEPA

procedure

as

nearly

as

possible

within

the

statutory constraints.

On the other hand both the electric and steel companies

have asked that all alternative equivalent testing methods be

adopted pursuant to full rulemaking before the Board

(PC6,

7).

This procedure would be too slow arid

expensive

for small busi-

nesses if applied to

a?.

site—specific decisions.

Section 720.121

will allow the Agency to exercise enforcement discretion and

permit

authority in appropriate cases.

The steel companies have stated that §720.121 proposes to

subdelegate to the Agency the “authority to adopt field tests”

As stated in §721.121(a), modification of testing methods

requires Board rulemaking pursuant to §720.121(a).

Section 725.113 requires the

HWM

operator

to

develop

a

written waste analysis plan.

When

a permit program is adopted,

these

plans will become subject to Agency review and

will

become

permit conditions

140 CFR §122.36(h).

Specification of

monitoring is well within the Agency~straditional permit

authority under the Act.

Section 720.121(b)

would

allow the

45—344

---

—29—

Agency to approve in individual cases

testing

methods

which

are

equivalent

to

tlwse

specified

in

Board

regulations,

Waste

Delisting

(572Ii~l22)(PC2,

3)

.

Section

720,122(a)

references the procedures for adopting new “identical in sub-

stance” regulations I5720~120(a).

Section 720.122(b) provides

a procedural mechanism for

delisting

proposals addressed to

the Board.

There

is a question however as to whether the Board

has the authority under 522.4(b)

of the Act; such delisting

would have to be not inconsistent and

at

least

as

stringent

as

federal rules.

40

CFR

§260.2

seems to also contemplate findings by

USEPA

that

a

given

wastestream

is

not

in

fact

hazardous

in

a

given

context.

This

is

possible

where

a

listed

generic waste—

stream does

not

contain

the

constituent

which

caused

it to be

listed.

(This is

a finding similar to that needed in a permit

system to determine applicability).

Section 720,122(c)

author-

izes this finding in writing by

the

Agency

where

a

given

waste—

stream

and person are

involved.

This

may

be

used

against

the

Agency in an enforcement action, but does not bind the Board

or

public.

CACI requested that the Board adopt the “simpler” USEPA

procedures

(PC8).

This

involves

the

same problems

as alterna-

tive equivalent testing irethods.

The steel companies

contend that §720,122 fails to ade-

quately differentiate between the authority to completely delist

a generic wastestream and authority to declare a specific

wastestreazn non—hazardous,

The former is a “delisting” requir-

ing a petition to the Board pursuant to §720.122(b); the latter

is a determination, which may be made by the Agency, that a

certain generator’s waste frorna particular source is not in

fact hazardous.

The distinction is made in the rules with

sufficient clarity.

Section 720.122(c)

is deliberately worded

broadly, in that the Board also intends it to cover the situation

where there is

a question as to whether the wastestream in fact

contains

a listed constituent or in fact meets one of the

criteria in the absence of listing.

The steel companies also ask that “only a letter” be

required from the Agency,

rather than “both

a letter and a

permit”.

The proposed regulation is clearly stated in the

alternative, and is certainly not intended to impose a permit

requirement.

A

generator

subject

only

to

Part

722 should be given a

letter.

A

person

who

is both a generator and treater or disposer

will eventually fall under the RCRA permit requirement.

This

would then be dealt with.

in

the

permit

if

required.

45 —34

S

---

--30—

Section 720,122(d)

requires that requests for delisting

directed to either the Board

or

Agency contain

the

information

required

by

USEPA

in

40

CFR

§260.22.

The

electric

companies

characterize

§720.122(f)

as requir-

ing generators

to

comply

with

the

laws of the receiving state

(PC6).

This is not

the

intent of that Section; rather,

it

requires

generators

to

comply

with

Part

722

for

waste

which

is

hazardous in the receiving state.

The electric companies

otherwise support §720,122,

except

for the matters concerning

rulemaking

procedures.

PART 721

IDENTIFICATION

~ND

LISTING

OF

HAZARDOUS

WASTE

Purpose and Scope

721~J)l~

~iPCi,

2,

3,

7).

40

CFR

§261.1

involves

three

sections

of

the

Federal

Act:

Section

1004(5)

Definition of

‘hazardous

waste”

Section 3007

Section

7003

Iia~ninent hazard

40

CFR

§261.1(b)

reads

as

follows:

This

part

identifies

only

some of the materials which

are hazardous wastes

under

sections 3007 and 7003 of

RCRA.

A material which is not a hazardous waste

identified in this part is still a hazardous waste

for purposes of those sections if:

1.

In the case of section 3007, EPA has reason to

believe that the material may be a hazardous

waste within the

meaning

of section 1004(5)

of

RCRA.

2.

In the case of section 7003, the statutory

elements are established.

40 CFR §261.1(b)

seems to serve two purposes:

first, it

provides a basis for expanding the regulations to cover wastes

which

are

hazardous

under

the Act

but

not Part 721; second,

it

states USEPA’s inspection authority.

As stated it appears to

expand

the

definition

of

hazardous

to

include

anything

which

USEPA “has reason to believe is hazardous.”

If

the.

Board were

to adopt this as

a state rule, it would have to substitute

either “Board” or ‘~Agency~

for

“USEPA”

in the

text.

“Board”

would appear to confer

inspection authority

on the Board;

“Agency” would appear

to

confer

rulemaking

authority

on

the

Agency.

Either

result

is

beyond

statutory

authority

(554

and

22.4 of the Act).

45~346

---

—31~--

This problem has been resolved by splitting the rule into

two

subsections,

one

dealing

with

the

definition,

the

other

with.

inspections.

Section

721,101(b)

provides

that

Part

721

identifies only some materials

which

are

hazardous

under

§S1004(5)

and 7003 of

RCRA.

Section 721.101(c)

provides that

the Agency has inspection authority under §3007 of RCRA

and

§4 of the Illinois Act.*

Of

Section

721.101(c)

PC3

says:

“Not

only

does

this

go

beyond the Federal RCRA regulations •but the Board does not

have authority under the Act

to

grant inspection authority to

the Agency beyond that contemplated by the Act.”

The objection

is

not

further

explained.

As

explained

above,

the

regulations

adopted

have

limited

the Agency’s authority from the unlimited authority to expand

the

definition

apparently

exercised

by

USEPA.

Section

3007

confers

inspection

authority

on

authorized

states.

Section 721.101(c)

assumes

Illinois will receive this

authorization.

The section is worded not

as a grant of author-

ity by the Board, but

as

a recitation of the Agency’s authority

under the statutes.

Inspections

are,

of course, limited by

constitutional provisions

as

well

as

the terms of the statutes.

PART

721

LISTINGS

Definition

of

Solid

Waste

(S721. 102)

(PC3).

Section

721.102(d)

contains the phrase “material or any constituent

thereof”.

This was inadvertently omitted from the September 16

rules.

Definition of Hazardous Waste

(S721.103) (PC3).

References

to “S~72l.l20and 72l.122’~have been changed to “SS720.l20 and

720.122”.

These were consistently wrong in the September 16

rules.

These refer to rulemaking and

waste

delisting

petitions.

Exclusions

(S72l.104)

(PC2,

3,

4).

Section 721.104(d)

has

been

added

to

provide

exclusion

of

laboratory

samples

(46

FR

47,426, September 25,

1981)

Small Quantity Generators

(S721.105) (PC?,

2,

3).

PC3

objects to the addition of a reference to Part 700 warning the

*~q~

errors

in

the

September

16 text have been corrected:

1.

Section 721.101(b)

referred to “S.S3007

and

7003.”

This

has

been

changed

to

“~Sl004(5)

and

7003.”

2.

Section

721.101(c)

referred

to

“SS3007

and

1004(5)”.

The

latter has been stricken,

45--

347

---

—32—

public of the 100

kg/mo.

exception of Chapter 9.

This

is

discussed

in

connection

with

Part 700,

Recycled

Hazardous

Waste

(~721.l06) (PC2,

3,

4).

Language

has

been

added

to

§721,106(a)

and §721.106(b)

to add an

exemption

for recycled spent pickle

liquor

(46

FR 44,970,

September

8,

1981).

Section 721.106(a)

contained an inadvertent omission of

exemption from Parts 722—725 for

recyclers.

This

error,

which

has been corrected, vastly increased the scope of

the

rules over

the corresponding federal rules

(PC7).

Empty

Containers

(~72l,107) (PCi,

2,

3).

This section

contained a large number

of

clerical

errors

which

have

been

corrected.

Criteria for

identi~ying,

characteristics

(S721.110) (PC2,

3).

Subpart B of 40 CFR Part 261 contains administrative history of

how

USEPA

arrived

at

the

characteristics and the criteria it

used

for

listing

hazardous

waste.

This is neither necessary nor

appropriate in Board rules,

Section 721.110 contains a refer-

ence to 40 CFR §261,10; 721,111 to

40 CFR §261.11.

The

steel companies

ask the

Board

for

clarification

concerning

the

omitted

material

of

SS721.llo

and

721.111

(PC7).

This

material

explained

how

USEPA

arrived

at

the

characteris-

tics of hazardous waste

and criteria for’listing.

40 CFR

§S261.10

and’

261.11 may be referenced in a case where the issue

is whether a certain waste is hazardous.

However, the Board

in rulemaking is not bound to the federal characteristics or

criteria.

The

Board

may

adopt

new

characteristics

or

alter

the

criteria

for

listing pursuant to §22.4(b).

The

federal

subpart

also

contains

the

only

definition

of

the

“P”

and

“U”

lists

and

the

definition

of

“acute

toxic

waste”.

These have been preserved in the Board rules

as §721.111(b)

and

§721.111(c).

CACI has noted that

“U” and “P”

were reversed in the

headings

to

proposed

S721.lll

(PC8).

Characteristics

(SS721,l20, 721.121,

721.122,

721.123 and

72l.l2U(PC2,

3,

4).

References to alternative equivalent

testing methods have been changed to §720.121.

This section

has

been

added

since

the September 16

rules.

A

typo

in

the

table has been corrected

(D012).

The

phrase

“Since

the

Appendix

I

sampling

methods

are

not

being

formally

adopted

by

the.

Board,”

has

been

added

to

the

comment following §721,120,

The

omission

of

this

phrase

which

appears in the

comparable federal

comment

was

construed

as

implying that the Board was, unlike

USEPA,

formally

adopting

the Appendix

I sampling methods

(PC2).

45—348

---

“P” List

~721,

133 (e)

j ~PCL, 3)

,

This

is

the

list

of

discarded commercial chemical products, off—specification

species, containe~c

and

spill

residues.

P008

~

This

is

listed

in

the

federal

rules

as 4—a~ninopyridine.

This

is

an

obvious

typo

in

the

federal

rules.

P09:2 Mercury, phen~’1—,acetate.

This appears in the fed-

eral

rules

as

Mercury,

(acetato.-O)phenyl.

It

was listed as

phenyl-~me’rw~

acetate in the May 19,

1980 version of the

federal rules and in Appendix

/lL,

The

Board

has

reverted

to this name.

“(Acetato—O)phenyJ.

mercury~’

is apparently named according

to

nomenclature

for

inorganic

complexes.

This

is

the

only

example

of

this

nomenclature

in

the

lists.

The

name

is

confusing and

its

use

in

this

case

is

questionable.

“Phenyl—

mercury

acetate”

is

the

standardized name

used

in

all

refer-

ence

works

consulted.

P108

Strychnine~

SprJLing has

been

corrected.

“U”

list.

1S721,13:3f)

~

IPC3).

The

phrase

“manufacturing

chemical

products”

has

been

stricken

from

§721,133(f)

to

correspond

with

the

federal

language.

U087

0 ,0-Diethyi--S-methyi-dithiophosphate.

Spelling has

been corrected.

U058 2H-l,3~,2-Oxazaphosphorine,2-bis(2-chioroethyl)amin2j

tetrahydro-,

oxide

2-.

Hyphen

in “ch1oro-ethy1~

in

federal

rules

is

not

necessary.

U041 Oxirane, 2-(chloroxnethyi)-.

Spelling corrected to

correspond

with

federal

rules.

U155

Pyridine,

2- 2-(dimethylamino)-2-thenylamino

Typo

has

been

corrected.

Thenyl

is

one

of

two

isomers

of

C4H3SCH2—.

This

was

listed

as

“methapyrilene”

in

the

May

19,

1980

federal rules and Appendix

v:ti.

Appendices to Part 721

(PCi,

2).

References to the corres-

ponding federal appendices have been added.

GENERATORS

(Part

722)

Purpose,

S~ope an

~1icabilit~

(S72.2,llO)

(PC2,

3).

Several

typographical errors

have

been

corrected.

Commenters

have

objected

to

the reference

to

Part

700.

The reasons for objection

to Part 700 are

stated

elsewhere.

---

--34—

Hazardous

Waste

De’t~th~ation

(S722.lll)

(PC2,

3).

A

note

has been added to §722,111 referencing §720.122 and

40

CFR

§260.22.

ThEse

provide

mechanisms

for waste delisting.

The

note

corresponds

with

a

similar

note

in

.40

CFR

§2G2.11

which

was

omitted

from

the September 16 rules.

Required

‘Information

(5722.121) (PC7).

The steel companies

object

to

the

modification

of

federal

language

concerning

certi-

fication

of

compliance

with

local

law

to

specify

Illinois

(PC7).

The

manifest

would

then

no

longer

be

acceptable

in

other

states.

The Board will add language allowing further specification of

compliatree with L,.,~ailaw tS722,12l~’i. There

is another out

of state shipment comment responded to in connection with

§720.122,

Delisting.

Number

of

Copies

and

Use

of

Manifest

(S5722.122

and

722.123)

(PCi,

3).

PC3

objects

to

the

requirements

that the generator

provide

a copy of the manifest to

the

Agency

and an extra copy

for

the

waste

recipient

to

send

to

the Agency.

These have been

added to the corresponding federal

rules

which

provide

only

for

retention

of

copies,

discrepancy

reporting

and

annual

reporting

(40

CFR

§260.22),

As

has

been

discussed

elsewhere

(5700.303),

RCRA

generators

are presently subject to existing Chapter

9 manifest requirements.

The

federal

rules

have

been

modified by adding existing state

requirements

which

are

not

inconsistent

and

at

least

as

stringent.

The

slight

modification

to

the

federal

rules

allows

the

Board

to

deem

generators

in compliance with Chapter

9 manifest require-

ments

5700.303(b).

This avoids the alternative of requiring

duplicate state and RCRA

manifests

for

each

load.

The

modifications to the manifest requirements have been

placed

in

the

body

of

the rules rather than Part 700.

This

represents an exception

to

the

general

policy

of

this

rulemaking

to keep the language of the RCRA rules

as nearly identical to

the

federal as possible.

It is convenient in this case because

the

manifest

requirements

of

RCR~and

Chapter

9

are

so

nearly

identical.

The federal rules

can be modified with addition of

a single sentence which puts the complete manifest requirements

into a single place in the rules.

In connection with §722.141, Annual Reporting, the electric

utilities have noted that USEPA has proposed to eliminate the

annual

report,

replacing

it

with

a

statistical

survey

146

FR

39,426

(July

31,

1981)J(PC2,

3).

This

is

an

additional

reason

for maintaining the Illinois manifest system which currently

generates complete statistics on the origin and fate of all

hazardous waste in Illinois.

International Shipments

(5722.150) (PC3).

PC3 objects to

the addition of

a

requirement

of

notification of the Agency.

45—350

---

—35—

This addition is not inconsistent

with

federal

rules

and

at

least

as

stringent.

Rowever,

it

:appears

that

there is no

equivalent

existing duty under

state

regulations.

The

Board

will delete the requirement.

The

Board

however

notes

that

existing Chapter 9 and

§722.121 will require a copy of the

manifest for foreign

shipments

to be sent to the Agency.

This

will accomplish the same result.

TR~NS:PORTERS

(Part

‘7:23.)

Scope

(S723.iiO) (PC2,

3).

Commenters objected to the

absence of notes after §5723.110(a)

and 723.110(c).

A note

corresponding to the equivalent federal note has been added

after §723.110(c).

The other note discusses the history of

USEPA cooperation with the

U.S.

Department

of

Transportation

and is not appropriate in the Board’s rules.

PC3 objected to

the reference to Part

700,

This

is discussed in connection

with

Part

700.

Immediate Action (~723,L30)(PC2,

3).

Commenters asked

that the spill notification requirement directed to the Agency

be replaced with notification of the Illinois Emergency Services

and Disaster Agency.

This

has

been done.

The September 16

requirement to notify the Agency would impose an additional

requirement not found

in

the

federal RCR~Arules or the existing

chapters.

Addition of this will require rulemaking pursuant

to §22.4(b).

ESDA notification

is required by statute

(P.A.

79—1442)

The steel companies contend that Illinois law does not

require written notification of ESDA.

The Board has reworded

§723.130(c)

to require notice

to

ESDA.

The Board will defer

to ESDA concerning the manner and form

of

the

notice

(PC7).

PART

725

INTERIM STATUS

STANDARDS

FOR

HWN

OWNERS AND OPERATORS

Scope

(5725..lOl) (PCi,

2,

3).

Section 725.101(b)

differs

from

40

CFR

§265.1(b)

in

that

the

interim

status

standards

are

.‘

applicable whether a facility qualifies for interim

status or not.

This

is discussed in conneôtion with §700.105.

It is necessary to deviate from the federal rules because the

Board has not yet adopted the equivalent of 40 CFR Part 264,

operating

standards

applicable

in

the

absence

of interim status.

This modification does not increase the scope of the

regulatory

program

as

a

whole.*

Under

the

federal

program

*The universe of wastes

is governed by Part 721 which is

unaffected.

45--

35

1

---

—36—

some

EWN

operations

would

fall

under

40

.CFR

Part

264,

others

under

Part 265,

depending

on federal interim status.

Under

the Board’s. rules the persons subjedt to 40 .CPR Part 264 become

subjedt

instead

to

Part

725.

The

number

of

persons

subject

to

the program does not increase.

A reference to §21(f) (1) state permits

deemed

issued

under

S700 .105

has

been

added

to

thE

comment

following

§725.101(b).

References to the Marine Protedti.on,

Research and Sanctuaries

Act

(16 USC 1431—1434;

33 USC 1401)

and the ‘Safe Drinking Water

Act

(21 USC 349;

42 USC 201, 300f to 300j

—9) have been added to

the federal text.

In response to comments pursuant to the December 3 proposal,

the Board has amended §725.101(b)

to exempt persons who become

subject to Part 725 for the first time.

This will allow a grace

period until interim status

is obtained.

This is discussed

in connection with §700.105.

Section 725 .101(c) (4) has been deleted

(PC3).

The federal

text provides that Part 265 does not apply in states with an

authorized program except that the federal Underground Injection

Control standards continue to apply unless the state has UIC

authorization also.

This is not appropriate in Part 725.

PC3 objects to the reference to Part 700 in 5725.101(d).

This is discussed elsewhere.

Required Notices

(5725.112) (PC2,

3).

The September 16

rules extended to the Director of the Agency the requirement of

notification of receipt of foreign waste.

This is not inconsis-

tent

and

at least

as stringent as

federal requirements.

However,

there is no comparable duty under the existing Board regulations.

This will be deleted.

Rulemaking pursuant to §22.4(b) will be

required.

General Waste Analysis

(5725.113) (PC3).

To §725.113(a) (4)

the” to correspond with federal regulations

(40 CFR §265.13(a) (4).

Security (5725.114) (PCI,

3).

Prepositions have been

corrected in §725.114(a).

Federal language concerning signs

near the Quebec or Mexican borders has been omitted from

§725.115(c).

This is not appropriate in

Illinois.

Ignitable, Reactive or Incompatible Wastes

(5725.117) (PC3).

The

phrase “spontaneous ignition

(e.g. from heat-producing

chemical reactions)” has been added to correspond with federal

rules.

Toxic musts have been changed to mists.

Contingency

‘Plan

(5725. 152) (PC2,

3, 4).

Reference to

40 CFR 5151 has been changed to §1510 in §725.152(a)

and

725.146(d).

45—352

---

—37—

Emergencies

(5725,156) (PC21

3,

4).

“Appropriate local

authorities.

Re must be available

to

help”

has

been

added

to §725.156(d) (1).

Typo corrected in §725.156(j)

Manifests

(5725.171) (PC2,

3).

A

requirement

that

the

waste recipient sign the

manifest

has been added to correspond

with federal rules

15725.171(a)

(3),

Coinmenters’

objected

to

requirements that copies’ be sent the Agency as well

as

what

is required under federal regulations

5725.171(a)

(4)

and

§725.171(b) (4).

This is discussed elsewhere.

Post—closure Care

(5725.217)(PC3).

Section 725.217(b) (3)

is

a “hanging paragraph” which has been numbered to comply with

codification requirements.

An ~!or~has been removed from

§725.217(b) (2)

to make it clear that the third paragraph is

not

a part of the list,

Post—closure Plan

(5725,218) (PC2,

3)

.

Section

725.218(a)

requires

a post-closure plan to be kept at the facility.

Section 725.218(b)

requires amendment of the plan within 60 days

of certain changes.

Section 725.218(c)

requires the operator to

submit

the

plan

to the Agency at least 180

days

before

he expects

to begin closure.

Section

725.218(d)

provides

for

public

notice

when the Agency receives

the

plan.

Section 725,218(e)

allows

the operator to petition the Agency to amend the plan during the

post-closure care period.

Section 725,218(f)

contains procedural rules for petitions

to the Agency to modify the plan during or after the post-closure

care

period.

Petitions

may

be

filed

by

the

operator

or

any

member

of the public to extend or reduce the 30—year care period

5725.217(a).

Part 725 will apply to facilities only during interim status

(5700.105 and 40 CFR §122.23).

An actual permit program will

arise

only

with

Phase

II authorization.

At this time the

operating standards of Part 725 will be replaced with Part 724

standards comparable to 40 CFR Part 264.

The post—closure rules

of Part 725 will therefore apply only during the period in which

there

are no actual permits, only permits

“deemed issued” under

§700.105.

The federal regulations are not specific as to appeal.

If they were adopted verbatim as state rules, appeal would

probably be through a Circuit Court action against the Agency

in Sangamon County.

This would be contrary to the appeal routes

established in the Act

(541).

The Board has therefore deemed

the post-closure plan a permit for purposes of appeal

5725.218(g).

The post-closure plan is clearly something which

could

be

included

in

permits~ if

they

were

required

of this type of facility

during interim status.

Deeming modifications permit amendments

45—353

---

—38—

establishes

a right of appeal to

the

Board consistent with the

rest of the Illinois Act.

The

steel

companies

continue

to

object

to

§725.218(g)

to the

extent

it

provides

a mechanism for appeal of Agency

decisions

on

closure

plans

to

the

Board

(PC7).

The

Board

is

not imposing an additional permit requirement, but is establish-

ing

an

appeal

mechanism

only,

The

Board

will

not

modify

§725.218(g)

In most cases

it is expected that amendment of the plan

will

concern

matt~:swhich are not specified by Board regulation.

However,

some

thir~js~such as the 30—year closure period, are

specified by Board regulation

(5725,217),

In this case relief

from the Board is also required, either a variance or site—

specific regulation.

This

is

necessary because the Agency has

no authority to modify

permits

in

a manner inconsistent with

Board regulations.

The

variance procedure contemplated is

similar to that of Rule

914

of

Chapter

3

(5309.184).

Board variances require a showing of arbitrary or unreason-

able hardship

arid are necessarily temporary

(535 et seq.).

In

many cases full relief as contemplated in the federal rules will

require

a site-specific regulation.

The Board is required to

follow the procedures of Title

VII

of the Act even in adopting

site—specific

rules

527(a),

Notice in Deed (S7~5,220), This has been changed from the

federal

rules

to reflect the Illinois title recording systems.

Financial requirements

(5725.240 et seq.) (PC2,

3,

4).

The

Board

has adopted several sections by reference rather than by

setting forth the language.

These are very lengthy and subject

to possible amendment by USEPA.

The compliance date has been

extended

(46 FR 38,312,

46 FR 48,197; 3uly 24 and October 1, 1981)

The extensions are incorporated by reference.

Several typos have

been corrected also.

The electric and steel companies ask that the Board

specifically adopt the federal suspension of the effective date

of the financial responsibility rules

(PC6,

7). The Board

intends the federal suspension to be incorporated by reference

as it exists

on the date of adoption of the Board amendments

proposed December

3,

1981.

Tanks

(5725.293 et seq.) (PCI,

3)

.

Section 725.293 has been

modified to remove a “hanging paragraph” to comply with codifica-

tion requirements.

This

has

been

inserted

into

§725.293(b).

Sections

725.293

and

725.294

have also been relettered to comply

with.

codification,

They had an

“a”

with

no

‘rb.”.

Several

other

sections

had

the

same problem (55725,325,

725.326, 725.329 and

725.356)

45—354

---

Piles

(S725~350 et

seQ.)

(PC

1,3)

.

Section

725.352

needed

an

“a”

and

a

“b”~

Section 725.353 had

a

“runoff”which

was

changed

to

a

“run

on”

to

correspond

with

federal

rules.

Food

Chain

Crops

(5725,376)

(PC

2,

3).

A

reference

to

§700.105(c)

(3)

has been added to the comment.

This

corresponds

to 40 CFR §122,23(c)

(3)

referenced

in

the

federal

comment.

The

Board intends growth of food chain crops at a facility which has

never been used for this purpose to be a “significant change”

with respect to state deemed issued permits in the same manner

as federal interim status.

These will require a revised Part A

permit applicatior

and Agency approval.

Typos have been corrected

in §725.376(b) (2)

)

and the comment to §725.376(c)

Liquid Waste

~5725.4l4). This section limits deposit of

liquids in landfills after November

19, 1981.

This may be extend

extended by USEPA.

Modification of Board rules may follow

rulemaking pursuant

to

$720~120.

Incinerators (5725,~440)(PC1,

3).

Section 725,440(b)

contained a “hanging paragraph’~which did not conform to codifi—

cation requirements

(see 40 CFR

§265.340).

The paragraph is

too long to insert before the list

starts.

There

is

also

an

ambiguity

in

meaning

which cannot be preserved

in

codification:

does the final condition in the

federal

rule

relate

to

exemption

from everything

in Subpart 0 except the final closure requirements,

or merely the “except”?

The Board has resolved this ambiguity by

applying

the

‘condition

to

the exemption rather than the “except”.

Incinerators

will

have

to

comply

with

the

closure

requirements

if

the

waste

feed

contains

no

Appendix

VIII

toxics

and

the

waste

either meets only the ignitability characteristic or

is listed for

ignitability only.

The

alternative

interpretation

would

exempt

all

ignitable

waste

from

the

entire

Subpart,

but

impose

closure

requirements

only

if

the

operator

demonstrated

that

there

were

no

toxics

present.

What incentive would the operator have to make such a demonstra-

tion and why should greater control be needed in the absence of

toxics?

The federal rule cannot be adopted verbatim because of the

Secretary of Stat&s regulations pursuant

•to the Illinois

Administrative Procedure Act

(1 Ill, Admin.

Code §120.14).

Section 22.4(a)

of the Act grants the Board authority to modify the

the federal text to make it comply with codification and to make

it make sense.

Sections 725.477 and

725.503

have

been

relettered

to

conform

with codification.

Section 725.502 has been relettered and a

“hanging paragraph” has been removed.

Section 725~.5O6

has

been

modified

to

include

§725.506(b),

corresponding to

CFR §265,406(b).

This

was

omitted

from

the

Septei~ber

16

rult~’.

45—355

---

~4Q

I,

Christan

L. Noffett, Clerk

of

the

Illinois

Pollution

Control B9ard, herpby

pertify that the above Opinion was ad9pted

on the

i/’l’

day

of

,

1982

by

a

vote

of

~/-()

~tanL.No~~

Illinois Pollution

rol Board

45—356