NOTICE OF FILING
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
THIS FILING IS SUBMITTED ON RECYCLED PAPER
AGENCY’S COMMENTS
Section 810.103
III. Miscellaneous Housekeeping Amendments
THIS DOCUMENT SUBMITTED ON RECYCLED PAPER

IN THE MATTER OF:

RCRA SUBTITLE D UPDATE, USEPA

REGULATIONS (January

1, 2003

through

June 30, 2003)

IN THE MATTER OF:

RCRA SUBTITLE D UPDATE, USEPA

REGULATIONS (July

1, 2003, through

December 31, 2003)

NOTICE

OF FILING

Dorothy Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite

11-500

Chicago, Illinois 60601-3218

Michael

J. McCambridge, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, Illinois

60601-3218

Service List for These Dockets

Matthew J. Dunn, Chief

Environmental Bureau North

Office ofthe Attorney General

188 West Randolph Street

Suite 2001

Chicago, Illinois 60601

Jonathan Furr~

Chief Legal Counsel

Illinois Department of Natural Resources

One Natural Resources Way

Springfield, Illinois 62702-1271

PLEASE TAKE NOTICE that today I have filed with the Office ofthe Clerk of the Pollution Control

Boardthe Illinois Environmental Protection Agency’s Comments for the above-titled proceeding, a copy of

which is herewith served upon you.

DATE: May 13, 2004

1021 North Grand Avenue East

P.O. Box

19276

Springfield, IL 62794-9276

(217)782-5544

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

By:

Mark Wight

Assistant Counsel

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERK’S OFFICE

MAY

2004

STATE OF ILLINOIS

)

P0II~tjo~

Control Board

)

R04-5

)

(Identical-in-Substance

)

Rulemaking

—

Land)

)

(Identical-in-Substance

)

R04-15

)

Rulemaking

—

Land)

)

THIS FILING IS SUBMITTED

ON RECYCLED PAPER

RECEIVED

ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

MAY

142004

THE MATTER OF:

)

STATE OF ILLINOIS

)

R04-5

P~IIution

Control Board

RCRA SUBTITLE D UPDATE, USEPA

)

(Identical-in-Substance

REGULATIONS (January

1, 2003 through

)

Rulemaking

—

Land)

June

30, 2003)

)

INTHE MATTER OF:

)

R04-15

)

(Identical-in-Substance

RCRA SUBTITLE D UPDATE, USEPA

)

Rulemaking

Land)

REGULATIONS (July 1, 2003, through

)

December 31, 2003)

)

AGENCY’S COMMENTS

The Illinois Environmental Protection Agency (“Agency”) respectfully submits

its

comments in the above-titled matter to the Illinois Pollution Control Board (“Board”) pursuant to

35 Ill. Adm. Code

102.108

and 102.610 and the Board’s Proposed Opinion and Order ofMarch

18, 2004.

Disposal ofLead-Based Paint Waste in Construction and Demolition Landfills

—

Section 810.103

In response to the Board’s request

for

comments on the incorporation into the Illinois

landfill regulations ofthe June 18,

2003, federal amendments relating to landfill disposal of

residential lead-based paint waste, the Agency comments as follows:

Although the goal ofthe lead-based paint (“LBP”) waste amendments is

laudable, the

Agency strongly opposes the adoption in Illinois ofthe federal amendments.

The federal

amendments are designed for a regulatory structure for landfills that does not exist in Illinois.

a result, the amendments will, at best, create legal conflicts with existing landfill provisions and

unnecessary confusion.

At worst, the amendments may create legal inferences disruptive to

the

Agency’s administration ofthe non-hazardous landfill rules.

The United States Environmental Protection Agency (“USEPA”) has adopted

amendments to 40 C.F.R.

257 and 258

allow the disposal ofLBP waste in construction and

demolition (“C & D”) landfills meeting the requirements in Subparts A or B of40

C.F.R. 257.

Subparts A and

B ofPart 257 establish minimum criteria and performance standards

for non-

municipal, non-hazardous waste disposal units.

The federal amendments to both subparts

include revising the definition of“municipal solid waste landfill” and adding definitions of

“construction and demolition landfill” and “residential lead-based paint waste.”

The stated

purpose ofthe amendments is to

expressly allow residential lead-based paint waste that is

exempted from the

hazardous waste management requirements as household waste to be disposed of

in construction and demolition landfills by stating that a construction and

demolition landfill accepting residential lead-based paint waste, and no other

household waste, is not a municipal solid waste landfill unit.

68 Fed. Reg.

36487 (June

18, 2003).

Without the federal amendments, LBP waste, even though considered a “household

waste” and therefore exempt from hazardous waste disposal requirements, still would require

disposal in municipal solid waste landfill (“MSWLF”) units.

With the federal amendments, all

regulatory impediments

are removed from the federal

structure so that LBP waste may be

disposed ofin any non-hazardous, non-MSWLF landfill unit under the federal structure.

This

approach may work well for states without delegated programs for non-hazardous wastes that are

regulated pursuant

Parts 257 and 258

and for states that have adopted structures similar to

Parts 257 and 258.

It will not work well for Illinois because the Illinois regulatory structure for

non-hazardous landfills is substantially different than the federal structure.

The Illinois

regulatory structure contains additional legal and economic impediments to the disposal ofC &

D debris

and LBP waste that cannot be resolved by the federal amendments alone.

The federal structure for regulating non-hazardous landfills divides them into MSWLF

units accepting household wastes and regulated pursuant to

Part 258 and non-MSWLF

units not

accepting household wastes and regulated pursuant to Part 257.

The latter are further divided

into non-MSWLF units accepting conditionally exempt small quantity generator (“CESQG”)

waste and regulated under Subpart B ofPart 257 and all other non-MSWLF units regulated

under Subpart A ofPart 257.

Under the federal amendments, both classifications of non-

MSWLF units under Part 257 may include “construction and demolition landfills” if those

landfills do not also receive hazardous waste orindustrial solid waste.

In Illinois, landfills are classified and regulated based on the potential ofthe waste they

receive for causing environmental harm, so there is

no Part or Subpart closely corresponding to

the more general Part 257 ofthe federal rules.1

At 35

111. Adm.

Code 811, non-hazardous waste

landfills are classified as inert waste landfills, chemical waste landfills, or putrescible waste

landfills.

Putrescible waste landfills may or may not receive household wastes.

Those receiving

household wastes must comply with additional

state requirements forMSWLF units that are

consistent with 40 C.F.R. 258.

There is not one classification oflandfill known as the

“construction and demolition landfill,” and there are no standards specific to such landfills.

Further complicating matters, C & D debris is not handled as a discrete type ofwaste.

The

Environmental Protection Act (“Act”) distinguishes between “general construction and

demolition debris” and “clean construction and demolition debris.”

415 ILCS

5/3.160

(2002).

Because ofthe varying definitions for inert, chemical

and putrescible wastes, C & D debris,

depending on its

content, may be disposed at any ofthe several non-hazardous landfill

classifications in IlLinois, but only MSWLF-equivalent, putrescible waste landfills may receive

‘Illinois has declined to

seek approval to administer 40 C.F.R.

257

because the state’s existing regulatory structure

is more stringent than the Part

257

requirements.

all types ofnon-hazardous C&D debris.

A brief summary ofthe Illinois rules illustrates some of

the problems that would be created by adoption of the federal amendments.

An inert waste landfill could be a “construction and demolition landfill” for some clean C

& D debris.

Inert waste landfills accept only non-biodegradable, non-putrescible wastes that do

not decompose biologically, burn, serve as food for vectors, form a gas, cause an odor, or form a

contaminated leachate.

35 Ill. Adm. Code 810.103

(defining “inert waste”); 811.201.

Generally,

clean C & D wastes such as brick, masonry and cured concrete are among those wastes that may

be disposed ofin inert waste landfills.2

However, because ofthe contaminated leachate it would

produce, LBP waste

could not be disposed ofat inert waste landfills without amending the

definition ofinert waste.

Some clean C & D debris as well as LBP waste could be disposed ofin a chemical waste

landfill.

Chemical waste landfills may receive non-putrescible solids producing no

gas and

producing contaminated leachates only through non-biological, chemical or physicalprocesses.

35 Ill. Adm.

Code 810.103

(defining “chemical waste”); 811.301.

For economic reasons, it is

unlikely a chemical waste construction and demolition landfill would be created.

General C & D

could not be disposed at sucha facility unless the definition of“chemical waste” was amended

thereby removing the reason for the classification.

The clean C & D debris disposable at a

chemical waste landfill would be disposable in an inert waste facility, so the only advantage ofa

chemical waste construction and demolition landfill would be the acceptability ofthe LBP waste.

The chemical waste landfill requirements are not substantially different from putrescible waste

landfill requirements except for gas monitoring, so it probably is not cost-effective to create a

chemical waste construction and demolition landfill for the purpose ofavoiding MSWLF

As a practical matter, most clean C & D debris in Illinois

is not disposed ofin landfills because ofthe

“waste

exclusion” for such materials when certain management practices are

followed.

415

ILCS 5/3.160(b) (2002).

There

are currently no

Agency-permitted inert waste landfills in Illinois.

requirements

for LBP waste.3

Clean and general C & D wastes as well as LBP

waste

could be disposed ofat a non-

MSWLF putrescible landfill unit.

These

wastes

generally would be consistent with the

definition

for

“putrescible waste” so there are no legal impediments

to such disposal.

Id.

810.103

(defining “putrescible waste”).

However, the requirements fornon-MSWLF putrescible

units are so similar to those for MSWLF putrescible units that, again, the economics ofcreating

such a construction and demolition landfill for the purpose ofavoiding MSWLF requirements

for LBP waste simply do not add up.4

Having ruled out, based on legal and economic factors, inert, chemical, and non-MSWLF

putrescible waste landfills as disposal alternatives for LBP waste, only MSWLF units are left.

Not only would the federal amendments be insufficient to accomplish the federal goal of

increasing disposal alternatives for LBP waste, but also theiradoption

is likely to create

confusion where none now exists.

Placing a definition of“construction and demolition landfill”

into a regulatory structure where no such classification, standards or entities exist or are likely to

exist can only raise questions that will be the Agency’s burden to explain.

At worst, the

definition might create an inference that could become the basis for landfills that do not meet the

requirements forhazardous waste disposal but that would

accept waste that in many, if not most,

cases will have the toxicity characteristic for lead as defined at 35 Ill.

Adm. Code 721.124.

Moreover, the definition itself implies that CESQG waste maybe

disposed in certain non-

hazardous landfills.

CESQG waste is by definition hazardous waste and cannot be disposed in

non-hazardous waste landfills in Illinois.

415 ILCS

5/21(f)

(2002); 35

Ill. Adm. Code

721.1

05(f)(3)(E)

(~oard

Note), 721.1

05(g)(3)(E)

(Board Note); 810.103

(defining wastes subject

~ There are currently fewer than a dozen Agency-permitted chemical waste “monofills” in Illinois.

“

There are currently no commercial, Agency-permitted, non-MSWLF putrescible units in Illinois.

Part

811),

811.101, 811.201, 811.301, 811.323.

This brief summary of the federal and state

regulatory structures for non-hazardous landfills demonstrates that the federal amendments

alone

cannot accomplish the federal purpose

Illinois.

Instead they will have the

effect ofcreating

legal contradictions and general confusion complicating the administration ofthe State’s existing

rules.

States are not required to adopt the federal amendments forLBP waste because they are

less stringent than existing federal criteria.

68 Fed. Reg.

36492 (June

18, 2003).

The Illinois

EPA strongly recommends against adopting the federal amendments forthe reasons set forth

above.

Disposal of LBP waste in non-hazardous, non-MSWLF units mayor may not be a wise

policy, but the additional

amendments to Illinois rules that would be necessaryto accomplish

this change imply broader policy changes to the existing structure that should be determined in a

context other than an identical-in-substance rulemaking.

Ifthe Board does not agree with the Agency’s recommendation, the Agency requests that,

at a minimum, the Board include a Board Note following the definition of“construction and

demolition landfill.”

The Board Note would be for the purpose ofclarifying CESQG waste

disposal requirements and would be similar to the Board Notes at 35 Ill. Adm.

Code

721.1 05(f)(3)(E)

and 721.1 05(g)(3)(E).

The Agency suggests the following:

BOARD NOTE: The Illinois non-hazardous waste

landfill regulations,

35 Ill.

Adm. Code 810 through 814, do not allow the disposal ofhazardous waste in a

landfill regulated under those rules.

The Board specifically does not intend that

this definition authorize any disposal ofconditionally exempt small quantity

generator waste in a landfill not specifically permitted to accept the particular

hazardous waste.

II.

Restrictions on the Location of

a New MSWLF Unit

in the Vicinity ofa

Public

Airport

—

Section

811.302

In response to

the Board’s request for comments on the incorporation into the Illinois

landfill regulations of the October

15, 2003, federal revision relating to locating MSWLF units

near

certain

public airports, the Agency comments as follows:

The Agency supports the Board’s addition ofthe Board Note at 35

Ill. Adm.

Code

811.302(f).

III.

Miscellaneous Housekeeping Amendments

The Agency supports the Board’s miscellaneous housekeeping amendments and

respectfully requests that the Board add the following housekeeping amendments to its list:

Illinois Section

40 C.F.R. Section

Revision

811.71 0(g)(2)

equivalent

provision at

25 8.74(a)

Revise the illinois Section by adding “to release”

following “trustee,” so that it reads:

Within 60 days after receiving a request from the

owner or operator for a release of funds, the

Agency shall instruct the trustee to release to the

owner or operator such funds as the Agency

specifies in writing to be in excess ofthe current

cost estimate.

81 1.716(c)(1)(A)(iii)

258.74(f)(3)(A)(3)

Revise the reference in the Illinois Section from

(f)(4) to (d) so that it reads:

iii) Certifies that the unit of local government

meets the conditions ofsubsections

(b) and

(f)(4).

The Agency’s financial assurance reviewers have noted two provisions in 35 Ill.

Adm.

Code 81 1.Siibpart G that need correction.

Section

81 l.710(g)(2) contains an omission of two

words that if inserted will make the provision clear without substantively changing its meaning.

In addition, the current Section 811.71 6(c)( 1 )(A)(iii) references subsection (f)(4) ofthe

section, but Section 811.716 does not contain a subsection (f)(4).

Section 811.716

is derived

from 40 C.F.R. 258.74(f).

The federal subsection corresponding with Section

81 1.716(c)(1)(A)(iii) is

Subsection 258.74(f)(3)(A)(3), which references

subsections

258.74(f)(2) and (f)(4).

Thus, it appears that the reference to subsection (f)(4) in the Part 811

rules

is a remnant from the federal

rules

that

was

inadvertently left unchanged.

Subsection

811.716(d)

the subsection ofthe Part 811

rules that corresponds with

subsection

40 C.F.R.

258.74(f)(4).

The Agency requests that subsection 81 1.716(c)(l)(A)(iii) be revised accordingly

as a part ofthis docket.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

By:______

Mark Wight

Assistant Coun

Date: May 13, 2004

1021 North Grand Avenue East

P.O. Box

19276

Springfield, Illinois

62794-9276

(217) 782-5544

THIS DOCUMENT SUBMITTED ON RECYCLED PAPER