ILLINOIS POLLUTION CONTROL BOARD
May 1, 1997
IN THE MATTER OF:
)
)
R96-10
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(July 1 through December 31, 1995)
)
IN THE MATTER OF:
)
)
R97-3
UIC UPDATE, USEPA REGULATIONS
)
(Identical-in-Substance Rules)
(January 1 through June 30, 1996)
)
IN THE MATTER OF:
)
)
R97-5
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(January 1 through June 30, 1996)
)
ORDER OF THE BOARD (by K.M. Hennessey):
Pursuant to Section 13(c) and 22.4(a) of the Environmental Protection Act (Act) [415
ILCS 5/13(c) & 22.4(a) (1992)], the Board is preparing to propose amendments to the RCRA
Subtitle C hazardous waste (RCRA Subtitle C) and underground injection control (UIC)
regulations. By this order, the Board sets forth reasons for delay as to the RCRA Subtitle C
amendments.
Section 22.4(a) provides for quick adoption of regulations that are “identical in
substance” to federal regulations adopted by the U.S. Environmental Protection Agency
(USEPA) to implement Sections 3001 through 3005 of the Resource Conservation and
Recovery Act of 1976 (RCRA, 42 U.S.C. §§ 6921-6925) and that Title VII of the Act and
Section 5 of the Administrative Procedure Act (APA) [5 ILCS 100/5-35 & 5-40 (1992)] shall
not apply. Section 13(c) similarly provides with respect to underground injection control
regulations adopted by USEPA pursuant to Section 1421 of the Safe Drinking Water Act
(SDWA; 42 U.S.C. § 300h). Because this rulemaking is not subject to Section 5 of the APA,
it is not subject to first notice or to second notice review by the Joint Committee on
Administrative Rules (JCAR). The federal RCRA Subtitle C regulations are found at 40 CFR
260 through 268, 270 through 271, 279, and, more recently, 273. The federal UIC
regulations are found at 40 CFR 144, 146, and 148.
Docket R96-10: July 1 through December 31, 1995 RCRA Subtitle C Amendments
USEPA amended the federal RCRA Subtitle C regulations several times during the
period July 1 through December 31, 1995, summarized as follows:
2
Federal Action
Summary
July 7, 1995
(61 Fed. Reg. 35452)
Corrections to Subpart CC rules
. USEPA corrected the
docket number in the
Federal Register
preamble
discussion of December 6, 1994.
July 11, 1995
(61 Fed. Reg. 35703)
Addition of test method for testing biodegradability of
absorbent materials
. USEPA added a test method for
testing the biodegradability of sorbent materials for the
purposes of the landfill disposal ban imposed on
containerized liquid hazardous waste absorbed in such
materials.
August 14, 1995
(61 Fed. Reg. 41817)
Notice of revised interpretation of carbamate rule
.
USEPA revised its interpretation of its carbamate rules to
determine that wastes from the off-site production of non-
carbamate intermediates that are used exclusively in
carbamate production are not subject to the carbamate
rule.
September 29, 1995
(61 Fed. Reg. 50426)
Partial Stay of Subpart CC rules
. USEPA stayed the
organic material emission rules of the hazardous waste
treatment, storage, and disposal facility standards as they
apply to emissions from tanks, containers, and surface
impoundments containing organic peroxide manufacturing
waste.
October 23, 1995
(61 Fed. Reg. 54311)
Correction of hazardous waste delisting for entity with
an Illinois facility
. USEPA restored the text of the
Envirite Corp. delisting inadvertently deleted when
USEPA intended to amend the delisting to delete the
waste from a single source (in Connecticut) on February
8, 1994.
3
October 30, 1995
(61 Fed. Reg. 55202)
Stay of used oil mixtures rule
. USEPA stayed the
provision of the used oil rules that pertains to mixtures of
used oil and hazardous waste. That provision regulated
mixtures of used oil and characteristic hazardous waste
(Subpart C waste) or waste that was listed because it
exhibited a characteristic (Subpart D waste) under the
used oil regulations, rather than under the generally-
applicable hazardous waste regulations. Thus, the stay
has the effect of making these waste subject to more
stringent regulations.
November 13, 1995
(61 Fed. Reg. 56952)
Delayed effective date for Subpart CC rules
. USEPA
delayed the effective date of the organic material emission
rules of the hazardous waste treatment, storage, and
disposal facility standards as they apply to emissions from
tanks, containers, and surface impoundments for an
additional six months, until June 6, 1996.
December 11, 1995
(61 Fed. Reg. 63417)
Amendments to permitting procedural requirements
.
USEPA amended the RCRA Subtitle C permitting
procedures to “improve the process for permitting
facilities that store, treat, or dispose of hazardous wastes
by providing earlier opportunities for public involvement
in the process and expanding public access to information
throughout the permitting process and the operational lives
of facilities.”
The Board will not need to take action based on some of the federal RCRA Subtitle C
amendments that occurred during the period of July 1 through December 31, 1995, but Board
action will be required by others of these federal amendments. The Board dealt with the
federal actions of July 7, September 29, and November 13, 1995 in docket R95-20, adopted
June 20, 1996. No further action is required of the Board on those matters. Further, for
various reasons, it is unlikely that the Board will need to amend substantive aspects of the
Illinois regulations based on the federal actions of August 14, October 23, and October 30,
1995. The Board has not yet taken action on the federal actions of July 11 and December 11,
1995, and these federal revisions will require Board action under docket R96-10.
In addition to the direct revisions to the RCRA Subtitle C regulations during the time
period of docket R96-10, USEPA amended the federal water pollution control regulations
three times during the period July 1 through December 31, 1995 in a way that could affect the
Illinois RCRA Subtitle C rules. These federal actions revised analytical methods of 40 CFR
136 as follows:
4
Federal Action
Summary
August 2, 1995
(61 Fed. Reg. 39586)
USEPA added a disk extraction method for testing
wastewater for chlorinated pesticides and PCBs.
August 28, 1995
(61 Fed. Reg. 44670)
USEPA added three methods for determination of total
Kjeldahl nitrogen (TKN) in wastewater.
October 16, 1995
(61 Fed. Reg. 53529)
USEPA added whole effluent toxicity testing to the
approved methods.
The methods codified in 40 CFR 136 are incorporated by reference at Section 720.111 of the
Illinois RCRA Subtitle C rules for the purposes of the hazardous waste and underground
injection control regulations. These amendments may require an update to that incorporation
under docket R96-10.
Docket R97-5: January 1 through June 30, 1996 RCRA Subtitle C Amendments
USEPA Amended its RCRA Subtitle C regulations several more times during the six-
month time period of docket R97-5. The federal actions during this period of January 1
through June 30, 1996 are summarized as follows:
Federal Action
Summary
February 9, 1996
(61 Fed. Reg. 4903)
Subpart CC organic material emissions standards
technical amendments.
USEPA made clarifying and
corrective amendments to the text of the December 6,
1994 Subpart CC organic material emission standards
applicable to tanks, containers, and surface impoundments
containing hazardous waste.
March 15, 1996
(61 Fed. Reg. 10684)
Relating to federal authorization of Illinois program.
USEPA authorized segments of the Illinois RCRA Subtitle
C program. Included are the “non-HSWA Cluster VI”,
“HSWA Cluster II”, and “RCRA Clusters I-III” rules--
i.e., rules adopted by USEPA between July 1, 1989 and
June 30, 1993. The Board adopted these program
amendments in dockets R90-2, R90-11, R91-1, R91-13,
R91-26, R92-1, and R93-4 between July 3, 1990 and
November 22, 1993.
5
March 26, 1996
(61 Fed. Reg. 13103)
Correction to exclusion for recovered oil reinjected
into refining process.
USEPA corrected an error in its
July 28, 1994 exclusion of recovered oil from the
definition of solid waste.
April 8, 1996
(61 Fed. Reg. 15596)
Phase III land disposal restrictions (LDRs).
USEPA
adopted treatment standards for carbamate pesticide
wastes and primary aluminum production wastes. USEPA
further amended the treatment standards for land disposal
of wastes exhibiting a characteristic of hazardous waste to
require not only the removal of the applicable
characteristic(s), but also any underlying hazardous waste
constituents.
April 8, 1996
(61 Fed. Reg. 15662)
Phase III LDRs partial withdrawal and amendment.
USEPA withdrew those segments of the contemporaneous
amendments accompanying the Phase III LDRs that
derived from the decision in
Chemical Waste Management
v. EPA
, 976 F. 2d 2 (D.C. Cir. 1992),
cert. denied
, 507
U.S. 1057 (1993). Adoption of the Land Disposal
Program Flexibility Act of 1996, Pub. L. 104-119,
effective March 26, 1996, effectively overrode that
decision. USEPA also amended segments of the
September 19, 1994 Phase II LDRs that were also
overruled by Pub. L. 104-119.
April 12, 1996
(61 Fed. Reg. 16309)
Hazardous waste import and export regulations.
USEPA amended the federal rules to incorporate
identification of wastes (green, red, and amber) that are
subjected to the graduated system of import and export
controls under the Organization for Economic
Cooperation and Development (OECD) Council Decision
C(92)39.
April 30, 1996
(61 Fed. Reg. 19117)
Phase III LDRs corrections (two separate actions).
In
one action, USEPA corrected the effective dates set forth
for its Phase III LDR rules in the April 8 (61 Fed. Reg.
15596) action.
6
June 5, 1996
(61 Fed. Reg. 28508)
Subpart CC organic material emission standards
amendment to effect partial stay.
USEPA further
postponed implementation of the December 6, 1994
Subpart CC organic material emissions requirements until
October 6, 1996.
June 28, 1996
(61 Fed. Reg. 33680)
Phase III LDRs corrections.
USEPA made technical
corrections to the April 8, 1996 Phase III LDRs and
partial withdrawal.
June 28, 1996
(61 Fed. Reg. 33691)
Used oil standards notice of judicial vacatur of admini-
strative stay of used oil mixture rule.
USEPA amended
the September 10, 1992 used oil mixtures rule in response
to a January 19, 1996 vacatur, in
Chemical Waste
Management, Inc. v. EPA
, 976 F.2d 2 (D.C. Cir. 1992),
cert. denied
, 113 S. Ct. 1961 (1993), of USEPA's
October 30, 1995 administrative stay of the rule.
As with the previous docket time-frame, the Board will not need to act in docket R97-5
based on some of the January 1 through June 30, 1996 federal RCRA Subtitle C amendments,
but the Board will be required to amend the Illinois rules based on others. The Board dealt
with the federal amendments of June 5, 1996 in docket R95-20, on June 20, 1996. Further,
the March 15, 1996 action related to federal authorization of the Illinois RCRA Subtitle C
program, and one of the actions of June 28 basically did little more than reverse an earlier
action. It is not likely that any regulatory amendments will be necessary based on these three
USEPA actions. The Board has not yet acted with regard to the federal actions of February 9,
March 26, April 8 (two actions), April 12, April 30, and June 28, 1996 (first action), so the
Board will likely need to amend the Illinois RCRA Subtitle C regulations to reflect the changes
brought about by these USEPA actions.
Summarizing the federal actions of the Ju1y 1 through December 31, 1995 time-frame
of docket R96-10, the Board must act with regard to the federal actions of July 11, August 2
and 28, October 16, and December 11, 1995. Summarizing the federal actions of the January
1 through June 30, 1996 time-frame of docket R97-5, the Board must act with regard to the
federal actions of February 9, March 26, April 8, April 12, April 30, and June 28, 1996.
Docket R97-3: January 1 through June 30, 1996 UIC Amendments
In addition to affecting the RCRA Subtitle C regulations, the federal actions of April 8
(both actions) and 30 and June 28, 1996 (second action) affected the underground injection
control (UIC) rules. The Board must act with regard to these actions under the UIC update
docket R97-3.
7
REASONS FOR DELAY
Section 22.4(a) provides for quick adoption of regulations that are “identical in
substance” to federal regulations adopted by USEPA to implement Sections 3001 through 3005
of the Resource Conservation and Recovery Act of 1976 (RCRA Subtitle C, 42 U.S.C.
§§ 6921-6925). Section 7.2(a) of the Act requires the Board to complete its identical-in-
substance rulemaking actions within one year after the date of the USEPA action on which
they are based. Section 7.2(b) allows the Board to extend the deadline for adoption by
publication of a notice of reason for delay in the
Illinois Register
. The Board hereby sets forth
the reasons for delay for the purposes of such an extension with regard to the RCRA Subtitle C
amendments of dockets R96-10 and R97-5.
On October 17, 1996, the Board adopted an order in this matter that set forth the
reasons for delay. It set forth those reasons as follows:
Due to the present and recent-past demands on Board resources and
personnel, including those associated with completing the two prior updates,
R95-4/R95-6 and R95-20, the Board has been unable to commence the
amendments in dockets R96-10 and R97-5 in such a way that it has been able to
complete rulemaking activities within one year. The amendments involved in
dockets R95-4/R95-6 and R95-20 represented significant efforts on the part of
the Board, given the magnitude of the amendments and competing priorities for
the Board and its staff. Those amendments, the magnitude of the amendments
involved in consolidated docket R96-10/R97-3/R97-5, and other competing
priorities have resulted in unavoidable delay.
The Board now finds it necessary to set forth reasons for delay one more time in this
matter. In addition to the reasons for previous delay, the Board has encountered others.
Principally, these deal with the format in which federal amendments are submitted to the
public. The federal Government Printing Office, which prints the
Federal Register
and the
Code of Federal Regulations
, does not require federal agencies to highlight the exact text of
their amendments, as is required in Illinois by the Secretary of State for publication in the
Illinois Register
. Rather than omit unaffected segments of text from certain sections under
amendment, USEPA simply printed the entire text of the massive tables to 40 CFR 268.40 and
268.48 and nearly the entire revised text of 40 CFR 264, subpart CC and 265, subpart CC that
it had amended. As a result, the Board must compare the text of the federal amendments with
the prior version on a line-by-line basis, which has proven much more time-consuming than
originally estimated.
At present, the Board anticipates assembling a proposal for public comment for
consideration at one of our regularly-scheduled meetings between mid-June and July.
Allowing adequate time for publication of Notices of Proposed Amendments in the
Illinois
Register
, for Board adoption at a regularly-scheduled meeting following the public comment
period, and a 30-day moratorium on filing to allow USEPA comment on the adopted rules, the
8
Board presently anticipates filing adopted amendments with the Secretary of State before
October 15, 1997.
The Board will cause a copy of the above segment of this proposed opinion to be
published in the
Illinois Register
, as required by Section 7.2(b) of the Act.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, do hereby certify
that the above order was adopted on the 1
st
day of May, 1997, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
