ILLINOIS POLLUTION CONTROL BOARD

November 16, 2006

IN THE MATTER OF:

)

)

UIC UPDATE, USEPA AMENDMENTS

)

R06-16

(July 1, 2005 through December 31, 2005)

)

(Identical-in-Substance

)

Rulemaking - Land)

RCRA SUBTITLE D UPDATE, USEPA

)

R06-17

AMENDMENTS (July 1, 2005 through

)

(Identical-in-Substance

December 31, 2005)

)

Rulemaking - Land)

RCRA SUBTITLE C UPDATE, USEPA

)

R06-18

AMENDMENTS (July 1, 2005 through

)

(Identical-in-Substance

December 31, 2005 and March 23, 2006)

)

Rulemaking - Land)

)

(Consolidated)

Adopted Rule. Final Order.

OPINION OF THE BOARD (by G.T. Girard):

SUMMARY OF TODAY’S ACTION

This identical-in-substance rulemaking consists of three separate consolidated dockets.

The rulemaking updates the Illinois underground injection control, municipal solid waste

landfill, and hazardous waste regulations to incorporate revisions to the federal regulations. The

federal amendments that prompted this action were made by the United States Environmental

Protection Agency (USEPA) during the period of July 1, 2005 through December 31, 2005, as

well as March 23, 2006 amendments affecting earlier hazardous waste amendments. This

proceeding adopts amendments to 35 Ill. Adm. Code 702 through 705, 720 through 726, 728,

733, 738, 810, and 811. It further adds new 35 Ill. Adm. Code 727. These amendments also

make a series of non-substantive corrections and stylistic revisions to segments of the text that

are not otherwise affected by the covered federal amendments, principally to the text of 35 Ill.

Adm. Code 704 and 730.

The Board has added clarifying amendments to Section 725.153 to the final amendments.

This was in response to a comment received. The amendments are considered in the discussion

that appears on page 61 of this opinion. Since the amendments Section 725.153 did not appear

in the April 6, 2006 proposal for public comment in this matter, the Board solicits public

comments on the amendments. The Board must receive any comments filed in response to this

request before November 30, 2006.

This opinion and the related order adopt identical-in-substance amendments in three

distinct program areas:

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2

1.

Sections 7.2 and 13(c) of the Environmental Protection Act (Act) (415 ILCS 5/7.2

and 13(c) (2004)) require the Board to adopt regulations that are “identical in

substance” to underground injection control (UIC) regulations that the USEPA

adopted to implement Section 1421 of the federal Safe Drinking Water Act

(SDWA) (42 U.S.C. § 300h (2003)). The federal UIC regulations are found at 40

C.F.R. 144 through 148.

2.

Sections 7.2 and 22.40(a) of the Act (415 ILCS 5/7.2 and 22.4(a) (2004)) require

the Board to adopt regulations that are “identical in substance” to municipal solid

waste landfill (MSWLF) regulations adopted by the USEPA. These USEPA rules

implement Subtitle D of the federal Resource Conservation and Recovery Act of

1976 (RCRA Subtitle C) (42 U.S.C. §§ 6941

et seq

. (2003)). The federal RCRA

Subtitle D MSWLF regulations are found at 40 C.F.R. 258.

3.

Sections 7.2 and 22.4(a) of the Act (415 ILCS 5/7.2 and 22.4(a) (2004)) require

the Board to adopt regulations that are “identical in substance” to hazardous waste

regulations adopted by the USEPA. These USEPA rules implement Subtitle C of

the federal Resource Conservation and Recovery Act of 1976 (RCRA Subtitle C)

(42 U.S.C. §§ 6921

et seq

. (2003)). The federal RCRA Subtitle C hazardous

waste management regulations are found at 40 C.F.R. 260 through 266, 268, 270,

271, 273, and 279. During the present update period, USEPA added new 40

C.F.R. 267.

Sections 13(c), 22.4(a), and 22.40(a) also provide that Title VII of the Act and Section 5

of the Administrative Procedure Act (5 ILCS 100/5-35 and 5-40 (1998)) do not apply to the

Board’s adoption of identical-in-substance regulations.

This opinion supports an order that the Board also adopts today.

CONSOLIDATION OF DOCKETS

The Board has previously determined that it was necessary to consolidate three separate

dockets in this rulemaking. The following segment of this opinion outlines the various federal

actions considered in this proceeding.

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

The following listing briefly summarizes the federal actions considered in this

consolidated UIC, RCRA Subtitle D, and RCRA Subtitle C update rulemaking:

Docket R06-16: July 1, 2005 through December 31, 2005

UIC Amendments

USEPA amended the federal UIC regulations once during the period July 1, 2005

through December 31, 2005, as is summarized below:

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3

70 Fed. Reg. 59848 (October 13, 2005)

USEPA adopted requirements for electronic filing of documents, such as permit

applications and reports, under the various federal programs, including federally

authorized state programs. The amendments affect,

inter alia

, the drinking water,

underground injection control, municipal solid waste landfill, hazardous waste,

underground storage tank, and wastewater pretreatment regulations.

Docket R06-17: July 1, 2005 through December 31, 2005

RCRA Subtitle D Municipal Solid Waste Landfill Amendments

USEPA amended the federal RCRA Subtitle D regulations twice during the period July

1, 2005 through December 31, 2005, as are summarized below:

70 Fed. Reg. 44150 (August 1, 2005)

USEPA corrected the hazardous waste and municipal solid waste landfill segments of its

June 14, 2005 (70 Fed. Reg. 34538) amendments to allow the use of alternative methods

to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods.”

70 Fed. Reg. 59848 (October 13, 2005)

USEPA adopted requirements for electronic filing of required documents, as described

immediately above in the listing for docket R06-16.

Docket R06-18: July 1, 2005 through December 31, 2005

RCRA Subtitle C Amendments

USEPA amended the federal RCRA Subtitle C regulations on six occasions during the

period July 1, 2005 through December 31, 2005, as are summarized below:

70 Fed. Reg. 44150 (August 1, 2005)

USEPA corrected the hazardous waste and municipal solid waste landfill segments of its

June 14, 2005 (70 Fed. Reg. 34538) amendments, as described immediately above in the

listing for docket R06-17.

70 Fed. Reg. 45508 (August 5, 2005)

USEPA adopted amendments that include mercury-containing devices under the

Universal Waste Rule, removing these materials from regulation as hazardous waste

when regulated according to the universal waste provisions.

70 Fed. Reg. 53420 (September 8, 2005)

USEPA adopted new standardized permit provisions for hazardous waste treatment and

storage facilities in a new 40 C.F.R. 267. The federal amendments included conforming

amendments to the existing permit provisions of 40 C.F.R. 124 and 270 and the

substantive hazardous waste rules of 40 C.F.R. 260 and 261.

70 Fed. Reg. 57769 (October 4, 2005)

USEPA amended the wastewater headworks exemption from the definition of hazardous

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4

waste. It added benzene and 2-ethoxyethanol to the list of solvents whose mixtures are

exempted from the definition. It added scrubber waters that are derived from the

combustion of any of the excluded solvents to the exclusion. It now allows the hazardous

waste generator to measure solvent levels directly at the headworks of the wastewater

treatment plant to determine whether the wastewater mixture is exempt. Finally, it

extended the eligibility for the

de minimis

exemption to listed hazardous wastes other

than solely to discarded commercial chemical products and to non-manufacturing

facilities.

70 Fed. Reg. 59402 (October 12, 2005)

USEPA finalized the Hazardous Waste Combustor Rule. This rule imposes national

emission standards for hazardous air pollutants (NESHAPs) on hazardous waste

combustors. USEPA calls incinerators, cement kilns, and lightweight aggregate kilns

that burn hazardous waste “Phase I sources,” since it adopted standards for these sources

on September 30, 1999 (at 64 Fed. Reg. 52828). USEPA calls industrial, commercial, or

institutional boilers and process heaters and hydrochloric acid production furnaces that

burn hazardous waste “Phase II sources.” The present amendments include the Phase II

standards and final replacement standards to replace interim standards adopted

February 13, 2002 for Phase I sources (in response to litigation in Cement Kiln Recycling

Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (vacatur of portions of the original

Phase I standards)).

70 Fed. Reg. 59848 (October 13, 2005)

USEPA adopted requirements for electronic filing of documents, as described above in

the listing for docket R06-16.

Cited Actions on Which No Board Action Was Be Necessary

No Board action was required on one set of the amendments listed above. The Board

completed action on the August 1, 2005 (70 Fed. Reg. 44150) corrections to the June 14, 2005

(70 Fed. Reg. 34538) amendments relating to the use of “Test Methods for Evaluating Solid

Waste, Physical/Chemical Methods” in the prior consolidated update docket,

UIC Update,

USEPA Regulations (January 1, 2005 through June 30, 2005), R06-5, RCRA Subtitle D Update,

USEPA Regulations (January 1, 2005 through June 30, 2005 and August 1, 2005), R06-6, and

RCRA Subtitle C Update, USEPA Regulations (January 1, 2005 through June 30, 2005 and

August 1, 2005), R06-7 (Jan. 5, 2006 and Feb. 2, 2006). No further action is necessary in this

matter.

Later UIC, RCRA Subtitle D (MSWLF), and RCRA Subtitle C

(Hazardous Waste) Amendment of Interest

The Board engages in ongoing monitoring of federal actions. As of the date of this

opinion and accompanying order, the Board has identified one USEPA action since

December 31, 2005, that further affects the RCRA Subtitle D MSWLF and RCRA Subtitle C

hazardous waste rules in a way that requires immediate Board attention. The federal action is

described as follows:

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5

71 Fed. Reg. 14655 (March 23, 2006)

USEPA administratively stayed the effective date of the October 12, 2006 (70 Fed. Reg.

59402) amendments to the Hazardous Waste Combustor Rule. USEPA stayed the

effective date of the rules when granting a request for reconsideration of a segment of the

amendments. USEPA simultaneously proposed amendments to the rule (at 71 Fed. Reg.

14665). The 90-day stay of the effective date expired June 23, 2006.

The federal stay expired before the present amendments can be filed with the Office of

the Secretary of State and become effective. Even so, the Board amends the incorporation of

Subpart EEE of 40 C.F.R. 63 by reference to include the federal amendments that effect the stay.

When the Board observes an action outside the nominal timeframe of a docket that

requires expedited consideration, the Board will expedite consideration of those amendments in

the pending docket. Federal actions that could warrant expedited consideration include those

that directly affect the amendments involved in this docket, those for which compelling reasons

would warrant consideration as soon as possible, and those for which the Board has received a

request for expedited consideration.

Summary Listing of the Federal Actions Forming the Basis

of the Board’s Actions in This Docket

Based on the foregoing, the five federal actions that form the basis for Board action in

this update docket are the following, listed in chronological order:

August 5, 2005 (70 Fed. Reg. 45508)

Amendments including mercury-containing

devices under the Universal Waste Rule.

September 8, 2005 (70 Fed. Reg. 53420)

Standardized permit provisions for hazardous

waste treatment and storage facilities.

October 4, 2005 (70 Fed. Reg. 57769)

Amendments to the wastewater headworks

exemption from the definition of hazardous

waste.

October 12, 2005 (70 Fed. Reg. 59402)

Amendments that finalize the Hazardous Waste

Combustor Rule, imposing NESHAPs on Phase II

hazardous waste combustor sources and

amending the interim standards adopted February

13, 2002 for Phase I sources.

October 13, 2005 (70 Fed. Reg. 59848)

Requirements for electronic filing of required

documents in federally-authorized programs.

March 23, 2006 (71 Fed. Reg. 14655)

Administrative stay of October 12, 2006

Hazardous Waste Combustor Rule amendments.

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6

Other Federal Actions Having a Direct Impact on the

Illinois UIC and RCRA Subtitle C Regulations

In addition to the amendments to the federal UIC, RCRA Subtitle D MSWLF, or RCRA

Subtitle C regulations, amendments to certain other federal regulations occasionally have an

effect on the Illinois hazardous waste rules. Most notably, 35 Ill. Adm. Code 720.111 includes

several incorporations of federal regulations by reference. The incorporated regulations include

segments of various USEPA environmental regulations and United States Department of

Transportation hazardous materials transportation regulations that USEPA has incorporated into

the federal hazardous waste rules.

The latest available version of the

Code of Federal Regulations

is now the 2006 edition

(issued January 1, 2006) for Title 10 (Nuclear Regulatory Commission (NRC)), the 2005 edition

(issued July 1, 2005) for Titles 33 (U.S. Coast Guard (Coast Guard)) and 40 (USEPA), and the

2005 edition (issued October 1, 2005) for Title 49 (U.S. Department of Transportation

(USDOT)). Each of these is incorporated by reference in Section 720.111 of the hazardous

waste regulations. Title 40 is also incorporated by reference in Section 810.104 of the non-

hazardous waste landfill regulations. The Board will amend the incorporations of these federal

regulations by reference to include those editions of the

Code

. This will assure that all USDOT

amendments through September 30, 2004, all NRC regulations through December 31, 2004, and

all Coast Guard and USEPA amendments through December 31, 2005, will be included in the

incorporations of the pertinent regulations by reference.

The Board has found only minor sets of amendments to the incorporated materials in

Section 720.111 past these respective dates. These amendments update incorporated segments

of the

Code of Federal Regulations

, but it is unlikely that those amendments affect the

implementation of the federal hazardous waste requirements. Nevertheless, the Board updates

the incorporations to include the later federal amendments. The

Federal Register

citations to the

later amendments that are added to the incorporations by reference are listed in Table 1, which

begins on page 62 of this opinion.

PUBLIC COMMENTS

The Board adopted a proposal for public comment in this matter on April 6, 2006.

Notices of Proposed Amendment appeared in the April 21, 2006 issue of the

Illinois Register

, at

30 Ill. Reg. 6675 (Part 702), 6724 (Part 703), 6839 (Part 704), 6938 (Part 705), 6961 (Part 720),

7022 (Part 721), 7103 (Part 722), 7113 (Part 723), 7125 (Part 724), 7263 (Part 725), 7329 (Part

726), 7380 (Part 727), 7488 (Part 728), 7515 (Part 730), 7586 (Part 733), 7640 (Part 738), 7646

(Part 739), 7658 (Part 810), 7668 (Part 811), 7694 (Part 812), 7699 (Part 813), and 7705 (Part

814). The public comment period was initially to have ended 45 days after the appearance of the

Notices in the

Register

, on June 5, 2006. But by an order dated June 1, 2006, the Board granted

a motion filed by the Illinois Environmental Protection Agency (Agency) and extended the

comment period until June 30, 2006.

The Board received two public comments on this proposal, both of which were from the

Agency:

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7

PC 1 Comments of the Illinois Environmental Protection Agency, by Kimberly Geving,

Assistant Counsel, Agency, Division of Legal Counsel, dated and docketed June

30, 2006.

PC 2 E-mail from Scott Phillips, Agency, Division of Legal Counsel, dated August 4,

2006 and docketed August 14, 2006.

By PC 1, the Agency offered a large number of significant comments and suggestions for

changes and corrections to the proposed amendments. By PC 2, the Agency offered a suggestion

for a single correction to a segment of the rules that was not originally involved in the proposal.

The responses to the Agency suggestions in PC 1 are considered in the segments of the

discussion that begin on pages 13 and 18 of this opinion. The Board response to PC 2 is

discussed on page 59 of this opinion.

The Board will delay filing these adopted rules with the Secretary of State for 30 days

after adoption, particularly to allow additional time for USEPA to review the adopted

amendments before they are filed and become effective.

TIMETABLE FOR COMPLETION OF THIS RULEMAKING AND

EXTENSION OF THE DEADLINE FOR FINAL BOARD ACTION

Under Section 7.2 of the Act (415 ILCS 5/7.2(b) (2004)), the Board must complete this

rulemaking within one year of the date of the earliest set of federal amendments considered in

this docket. USEPA adopted the earliest federal amendments that required Board attention on

August 5, 2005, so that the original deadline for Board adoption of these amendments was

August 5, 2006.

The Board adopted an order on June 1, 2006, in response to a motion filed by the

Agency. That Order extended the public comment period until June 30, 2006, and the due date

until September 14, 2006. The Agency had requested additional time to formulate and submit its

comments on the proposal, and the Board granted that request.

By another order dated September 7, 2006, the Board extended the deadline for filing the

amendments until December 6, 2006. The Board determined that the added time was necessary

to fully evaluate and respond to the significant comments submitted by the Agency.

The Board now finds for the third time that additional time is necessary to complete the

amendments. While the Board had anticipated adopting these amendments no later than

November 2, 2006 when it ordered the second extension of the deadline, an additional two weeks

proved necessary. The Board found it necessary to prioritize adoption of the second-notice

opinion and order in Proposed New 35 Ill. Adm. Code 225 Control of Emissions From Large

Combustion Sources (Mercury), R06-25 (Nov. 2, 2006).

Since this opinion and order adopts the amendments in this matter, no delay other than

the routine 30-day hold on the hazardous waste amendments before their filing with the Office of

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8

the Secretary of State. Thus, the Board anticipates that the present amendments will be filed and

will become effective no later than December 26, 2006. The following table summarizes the

anticipated progress of this consolidated docket to completion:

Nominal Due date:

August 5, 2006

Date of Board vote to propose amendments:

April 6, 2006

Submission for

Illinois Register

publication:

April 17, 2006

Probable

Illinois Register

publication dates:

April 28, 2006

End of 45-day public comment period:

June 30, 2006

Date of Board vote to adopt amendments:

November 16, 2006

End of 30-day hold period for USEPA review:

December 19, 2006

Probable filing and effective date:

December 26, 2006

Probable

Illinois Register

publication date:

January 12, 2007

DISCUSSION

The following discussion begins with a description of the types of deviations the Board

makes from the literal text of federal regulations in adopting identical-in-substance rules. It is

followed by a discussion of the amendments and actions undertaken in direct response to the

federal actions involved in this proceeding. This first series of discussions is organized by

federal subject matter, generally appearing in chronological order of the relevant

Federal

Register

notices involved. Finally, this discussion closes with a description of the amendments

and actions that are not directly derived from the federal actions.

General Revisions and Deviations from the Federal Text

In incorporating the federal rules into the Illinois system, some deviation from the federal

text is unavoidable. This deviation arises primarily through differences between the federal and

state regulatory structure and systems. Some deviation also arises through errors in and

problems with the federal text itself. The Board conforms the federal text to the Illinois rules

and regulatory scheme and corrects errors found in the text in the course of these routine update

rulemakings.

In addition to the amendments derived from federal amendments, the Board often finds it

necessary to alter the text of various passages of the existing rules as provisions are opened for

update in response to USEPA actions. This involves correcting deficiencies, clarifying

provisions, and making other changes that are necessary to establish a clear set of rules that

closely parallel the corresponding federal requirements within the codification scheme of the

Illinois Administrative Code

.

The Board updated the citations to the

Code of Federal Regulations

to the most recent

version available. As discussed above, the most recent versions of the

Code of Federal

Regulations

available to the Board are the January 1, 2006 edition for NRC regulations (Title

10), the July 1, 2005 edition for Coast Guard and USEPA regulations (Titles 33 and 40,

respectively), and the October 1, 2005 edition for USDOT regulations (Title 49). Thus, the

Board has updated all citations to Title 10 to the 2006 edition of the

Code of Federal Regulations

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9

and citations to Titles 33, 40, and 49 to the 2005 edition, adding references to later amendments

using their appropriate

Federal Register

citation, where necessary.

The Board substituted “or” for “/” in most instances where this appeared in the federal

base text, using “and” where more appropriate. The Board further used this opportunity to make

a number of corrections to punctuation, grammar, spelling, and cross-reference format

throughout the opened text. We changed “who” to “that” and “he” or “she” to “it,” where the

person to which the regulation referred was not necessarily a natural person, or to “he or she,”

where a natural person was evident; changed “which” to “that” for restrictive relative clauses;

substituted “must” for “shall”; capitalized the section headings and corrected their format where

necessary; and corrected punctuation within sentences.

In addition, the federal rules have been edited to establish a uniform usage throughout the

Board’s regulations. For example, with respect to “shall,” “will,” and “may,” “must” is used

when an action is required by the rule, without regard to whether the action is required of the

subject of the sentence or not. “Shall” is no longer used, since it is not used in everyday

language. Thus, where a federal rule uses “shall,” the Board substitutes “must.” This is a break

from our former practice where “shall” was used when the subject of a sentence has a duty to do

something. “Will” is used when the Board obliges itself to do something. “May” is used when

choice of a provision is optional. “Or” is used rather than “and/or,” and denotes “one or both.”

“Either . . . or” denotes “one but not both.” “And” denotes “both.”

The Joint Committee on Administrative Rules has requested that the Board refer to the

United States Environmental Protection Agency in the same manner throughout all of our bodies

of regulations—

i.e.

, air, water, drinking water, RCRA Subtitle D (municipal solid waste

landfill), RCRA Subtitle C (hazardous waste), underground injection control (UIC), etc. The

Board has decided to refer to the United States Environmental Protection Agency as “USEPA.”

The Board will continue this conversion in future rulemakings as additional sections become

open to amendment. The Board will further convert “EPA” used in federal text to “USEPA,”

where USEPA is clearly intended.

The Board has assembled tables to aid in the location of these alterations and to briefly

outline their intended purpose. Table A sets forth the miscellaneous deviations from the federal

text, and Table B itemizes the corrections to the pre-amended base text of the rules in detail.

Table A begins on page 75 of this opinion, and Table B begins on page 163. There is no further

discussion of most of the deviations and revisions elsewhere in this opinion.

Discussion of Corrective Amendments

The Board has traditionally used the occasion of these identical-in-substance updates to

correct segments of the base text of the Illinois regulations. These corrections are non-

substantive in effect. The Board is including a significant number of non-substantive corrections

in this docket. Some were prompted by the current federal amendments.

When a necessary minor correction comes to the attention of the Board, Board staff

makes a note of the correction, and it is set aside until the next opportunity to make the

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10

correction. The next opportunity generally presents itself when the section involved is next

opened for amendment as a result of amendments to the corresponding federal text. Over the last

few years, the Board has cataloged very many changes, but the pace of completing the

corrections has been slow, since only a limited number of all the sections involved in the

hazardous waste regulations have been the subjects of federal amendments.

In preceding RCRA Subtitle C update dockets, the Board included necessary corrections

to many segments of the text of the rules that were not already involved in the pertinent docket

as a result of federal amendments. The Board has continued this process through the following

RCRA Subtitle C update dockets:

RCRA Subtitle C Update, USEPA Regulations (January 1, 2002 through June 30, 2002),

R03-7 (Jan. 9, 2003)

RCRA Subtitle C Update, USEPA Regulations (July 1, 2002 through December 31,

2002), R03-18 (June 5, 2003)

RCRA Subtitle C Update, USEPA Regulations (July 1, 2003 through December 31,

2003), R04-16 (Apr. 1, 2004)

RCRA Subtitle C Update, USEPA Regulations (January 1, 2004 through June 30, 2004

and October 25, 2004), R05-2 (Mar. 3, 2005)

UIC Update, USEPA Regulations (January 1, 2005 through June 30, 2005), R06-5;

RCRA Subtitle D Update, USEPA Regulations (January 1, 2005 through June 30, 2005

and August 1, 2005), R06-6; and RCRA Subtitle C Update, USEPA Regulations

(January 1, 2005 through June 30, 2005 and August 1, 2005), R06-7 (consolidated),

(Jan. 5, 2006 and Feb. 2, 2006)

In this ongoing review of the rules, the Board has so far reviewed the entire text of Parts

703, 705, 720, 721, 722, 723, 724, 725, 726, 728, 733, 738, and 739 of the RCRA Subtitle C and

UIC regulations. The Board included all the necessary corrections to the base text of which the

Board was aware. The Board believes that prompt completion of the corrections benefits the

Agency’s implementation of the rules and the regulated community.

The Board is completing the review by continuing this approach in this current docket.

The Board has made corrections to the final three Parts of the regulations: Parts 702, 704, and

730. Thus, after completion of this rulemaking, the Board will have reviewed the entire text of

Parts 702, 703, 704, 705, 720, 721, 722, 723, 724, 725, 726, 727, 728, 733, 738, and 739 of the

hazardous waste and UIC regulations and made necessary corrections. Completion of this

project has taken more than three years due to the extreme volume of the UIC and RCRA

Subtitle C rules,

1

and due to the fact that Board has waited for each Part of the rules to open for

federally derived amendments.

1

The entire text of the hazardous waste and underground injection control regulations includes

over half a million words and spans about 2000 pages.

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11

The Board will not discuss particular corrective amendments in this segment of this

discussion. The corrections are itemized in the Table A which begins on page 75 of this opinion.

Redesignation of Part 738 as Hazardous Waste Requirements

Since its initial adoption in UIC Update, USEPA Regulations (July 1, 1988 through

December 31, 1988), R89-2 (Jan. 25, 1990), 35 Ill. Adm. Code 738 has been grouped together

with the underground injection control regulations. It is derived from 40 C.F.R. 148, which is

adjacent to the underground injection control requirements of 40 C.F.R. 144 through 147, the

drinking water standards of 40 C.F.R. 141 through 143, and the sole source aquifer regulations

of 40 C.F.R. 149, each of which is derived from various segments of the federal Safe Drinking

Water Act (42 U.S.C. 300f

et seq.

(2003)).

The authority asserted by USEPA for adoption of 40 C.F.R. 148, however, is section

3004 of RCRA (42 U.S.C. 6924 (2003)). This is the authorization for USEPA to adopt standards

applicable to hazardous waste treatment, storage, and disposal facilities. The authority for Board

adoption of federal hazardous waste management standards is Section 22.4(a) of the Act (415

ILCS 5/22.4 (2004)). Section 22.4(a),

inter alia

, mandates adoption of regulations that are

identical-in-substance to hazardous waste management standards adopted by USEPA pursuant to

Section 3004 of RCRA. Thus, adoption of Illinois regulations to correspond with the

underground injection aspects of the federal land disposal restrictions of 40 C.F.R. 148 falls

under the Board’s mandate of Section 22.4(a) of the Act (415 ILCS 5/22.4(a) (2004)). The

adoption of those land disposal restrictions cannot fall under the mandate of Section 13(c) of the

Act (415 ILCS 5/13(c) (2004)), which relates exclusively to federal regulations adopted pursuant

to section 1421 of SDWA (42 U.S.C. 300h (2003)), pertaining exclusively to underground

injection control.

For the foregoing reasons, the Board is amending 35 Ill. Adm. Code 738 to classify it as a

segment of the Illinois hazardous waste regulations. While Part 738 will retain its existing Part

number, the Board is changing the Subtitle designation from 35 Ill. Adm. Code: Subchapter d

(Underground Injection Control and Underground Storage Tank Programs) to 35 Ill. Adm. Code:

Subchapter c (Hazardous Waste Operating Requirements). This is accomplished with a single

amendment to the table of contents Subchapter heading for Part 738.

The Board believes that associating Part 738 with the hazardous waste requirements more

accurately reflects the authority under which USEPA adopted the Part 738 restrictions and the

authority under which the Board is mandated to incorporate those standards into the Illinois

regulations. This will narrow the scope of future underground injection control update dockets

to incorporating amendments of 40 C.F.R. 146 into 35 Ill. Adm. Code 730. It will concomitantly

broaden the scope of future hazardous waste updates to include incorporation of amendments to

40 C.F.R. 148.

In redesignating Part 738 under Subchapter c, the Board is mindful that this places one

more Part of the hazardous waste regulations out of what would appear a natural sequence of

Part and Subchapter numbering. At present, the Part and Subchapter numbering of the 700-

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12

series of the Subtitle G regulations is as indicated in Table 2-A, which appears on page 64 of this

opinion.

One possible renumbering of the Parts and redesignation of Subchapters among this

material that is indicated in Table 2-B, which appears on page 65 of this opinion. The

reorganization of material indicated in that table changes only those Parts adopted by the Board

under the identical-in-substance authorities of sections 13(c) and 22.4(a) of the Act (415 ILCS

5/13(c) and 22.4(a) (2003)). This reorganization may not require the use of the general

rulemaking authority of Section 27 of the Act (415 ILCS 5/27 (2004)).

The Board requested public comment on moving the underground injection aspects of the

federal land disposal restrictions into the hazardous waste regulations. Specifically, the Board

requested comment on the redesignation of Part 738 from Subchapter d to Subchapter c to

associate these requirements as hazardous waste requirements. The Board further requested

comment whether it might one day be desirable to renumber the hazardous waste regulations of

Parts 720 through 728 and 738 to Parts 710 through 718 and 720 and renumber Parts 733 and

739 to Parts 721 and 722, so that all of Subchapter c appears in numerical order before

Subchapter d.

In PC 1, the Agency stated in response as follows:

The Illinois EPA does not believe that it would be beneficial to renumber all of

the existing hazardous waste regulations. The regulations are already difficult

enough to follow due to how differently they are structured compared to the

federal requirements. Additionally, the regulated community and the Illinois EPA

have become familiar with the existing numbering system and to change it at this

juncture could be very confusing.

The Board is sensitive to the need for easy comparison with the federal rules. The

problem that exists at present derives from the interspersion of RCRA, UIC, and UST rules. The

Board will take the Agency comments under advisement should the future present an opportunity

to consider correction of the problems inherent to the existing structure of the rules.

Discussion of the Particular Federal Actions Involved in This Docket

Amendment of the Universal Waste Rule to Include Mercury-Containing Devices--Parts

703, 720, 721, 724, 725, 728, and 733

2

On August 5, 2005 (70 Fed. Reg. 45508), USEPA amended the Universal Waste Rule to

include mercury-containing devices. Items that are designated “universal waste,” and which are

managed in accordance with the Universal Waste Rule, are not subject to regulation as

hazardous waste. USEPA explained that common mercury-containing equipment (MCE)

2

The specific Sections involved are 703.123, 720.110, 721.109, 724.101, 725.101, 728.101,

733.101, 733.104, 733.109, 733.113, 733.114, 733.132, 733.133, and 733.134.

---

13

includes thermostats, barometers, manometers, flow meters, pressure relief gauges, water

treatment gauges, gas safety relays, and electronic mercury switches that are in common

industrial, commercial, governmental, and household use.

The Board does not review the substance and merits of the underlying federal action in

an identical-in-substance proceeding, except to the extent that it may be necessary to do so in

order to incorporate the federal provisions into the Illinois regulations. Persons interested in the

details of the federal amendments should consult the August 5, 2005

Federal Register

notice.

Having stated this, the Board observes for the benefit of the regulated community that the

October 12, 2005 amendments to the Universal Waste Rule replace an earlier exemption for

MCE that the Board adopted under authority of State law.

The Board previously included MCE in the Universal Waste Rule in Standards for

Universal Waste Management (35 Ill. Adm. Code 703, 720, 721, 725, 728, and 733), R05-8

(Apr. 7, 2005). The Board adopted that rule on a petition filed by the Agency pursuant to

Section 22.23b of the Act (415 ILCS 5/22.23b (2004)). That Agency proposal was based on

amendments to the Universal Waste Rule that USEPA proposed on June 12, 2002 (67 Fed. Reg.

40507). That USEPA proposal resulted in the October 12, 2005 federal amendments now under

consideration by the Board.

Since the June 2002 proposal, USEPA has changed aspects of the amendments.

Principally, USEPA changed its definition of MCE to include thermostats, which were formerly

a separate category of universal waste. USEPA also reworded segments of the definition to

clarify its intent as to what is included as MCE. USEPA further made a series of minor changes

in the MCE management and transportation requirements of the final rule. Important among

these changes is a new definition of “ampule,” added provisions for MCE in which the mercury

is not contained in an ampule, and standards for removal of the mercury-containing component

from the MCE. Thus, the version of the MCE provisions adopted by the Board on April 7, 2005,

is no longer entirely consistent with the provisions adopted by USEPA on October 12, 2005.

The present amendments make the Illinois rules consistent with those now adopted by

USEPA. The Board incorporated the August 5, 2005 federal amendments without substantive

deviation from the corresponding federal text. The deviations from the text of the federal

amendments are restricted to those structural and stylistic changes needed to make the text

comport with the

Illinois Register

format and the Board’s preferred style. The Table A, which

begins on page 75 of this opinion, itemizes the various revisions made in the federal text in

adapting it into the State regulations.

The Board requested public comment on the incorporation of the August 5, 2005 federal

amendments that included MCE as a category of universal waste. The Board received no

comments on this aspect of the proposal.

---

14

Standardized Permits for Hazardous Waste Management Facilities--Parts 702, 703, 705,

720, 721, and 727

3

The USEPA action of September 8, 2005 (70 Fed. Reg. 53420) modified the hazardous

waste permit requirements. USEPA changed the federal permit rules to allow what it called a

“standardized permit” for certain hazardous waste management facilities. The facilities eligible

for coverage under the Standardized Permit Rule are facilities that are otherwise subject to the

RCRA permit requirements and which generate and then store or non-thermally treat hazardous

waste on-site in containers, tanks, or containment buildings. Also subject to the Standardized

Permit Rule are facilities that receive waste for storage or treatment from a generator that is

under the same ownership as the receiving facility. USEPA’s goal is to streamline the RCRA

permit process to allow the subject facilities to more easily obtain and modify permits.

The Board incorporated the September 8, 2005 federal amendments without substantive

deviation from the corresponding federal text. The deviations from the text of the federal

amendments are restricted to those structural and stylistic changes needed to make the text

comport with the

Illinois Register

format and the Board’s preferred style. Table A, which begins

on page 75 of this opinion, itemizes the various revisions made in the federal text in adapting it

into the State regulations.

The Board does not review the substance and merits of the underlying federal action in

an identical-in-substance proceeding, except to the extent that it may be necessary to do so in

order to incorporate the federal provisions into the Illinois regulations. Persons interested in the

details of the federal amendments should consult the September 8, 2005

Federal Register

notice.

The only aspects of the present amendments that warrant such consideration here relate to the

style and structure of the federal regulations.

Initially, the style in which USEPA presented the regulations is their current “user-

friendly” format. The rules are presented in a question-and-answer format that the Board

believes is more appropriate for an informational brochure than for regulations. The Board

believes that the informal style and chatty format used by USEPA could one day result in

adjudication that the rules are advisory, rather than compulsory. Thus, the Board has changed

each appearance of headings and questions like “What requirements apply to my facility?” to a

direct statement like “Applicable requirements.”

Second, USEPA chose to codify the new segments of the existing permit rules, subpart G

of 40 C.F.R. 124 and subpart J of 40 C.F.R. 270, and the new Standardized Permit rules, 40

C.F.R. 267, in short, narrow sections. Many of the new provisions are far less than a page long

when presented in the

Illinois Administrative Code

format. USEPA then subdivided the new

subparts with topical subheadings that include two to five of these short sections each. The

3

The specific Sections involved are 702.101, 702.110, 702.120, 702.125, 703.100, 703.101,

703.125, 703.144, 703.191, 703.192, 703.260, 703.270, 703.272, 703.350 through 703.353,

705.128, 705.300 through 705.304, 720.110, 720.111, 721.107; 727.100, 727.130, 720.150,

727.170, 727.190, 727.210, 727.240, 727.270, 727.290, and 727.900.

---

15

subheadings are not allowed in the

Illinois Administrative Code

format.

See

1 Ill. Adm. Code

100.310 (2004). The federal amendments added 15 sections to subpart G of 40 C.F.R. 124 under

five topical subheadings, and 12 sections to subpart J of 40 C.F.R. 270 under four subheadings.

New part 267 does not use the topical subheadings, but most of its 75 new sections are similarly

short, in 12 subparts. Thus, the Board has made changes consistent with

Illinois Administrative

Code

requirements.

Third, USEPA has marked a number of sections in the new rules as “reserved.” This is

not allowed under the

Illinois Administrative Code

format.

See

1 Ill. Adm. Code 100.310

(2004).

See, e.g.,

40 C.F.R. 267.91 through 267.100 and 267.144 through 267.146, as added at

70 Fed. Reg. 45508, 53460, 53465 (Aug. 5, 2005). This has required the Board to insert a

statement at each of the corresponding subsections to maintain structural consistency with the

federal regulations.

See, e.g.,

35 Ill. Adm. Code 727.190(b) through (m) and 727.240(e) through

(g), as added in the order accompanying this opinion. Similarly, USEPA marked some

subsections in the federal rules as “reserved.”

See, e.g.,

40 C.F.R. 267.141(c) and (e), as added

at 70 Fed. Reg. 45508, 53462 (Aug. 5, 2005). The Board was easily able to maintain structural

consistency by adding the explanatory statement in the corresponding subsection of the Illinois

regulations.

See, e.g.,

35 Ill. Adm. Code 727.240(b)(3) and (b)(5), as added in the order

accompanying this opinion (corresponding with the cited federal example reserved

subsections).

4

Incorporating the new federal Standardized Permit Rule requirements into the Illinois

rules, the Board has deviated from the federal structure, while retaining a correlation with the

federal structure.

5

The Board has chosen to use the topical subheading divisions as Section

4

Similarly reserved subparts in the federal regulations did not present a similar challenge to

maintain structural consistency, since the Board only needed to leave gaps in the Section

numbering to accommodate any future use of these federal provisions.

Compare

the table of

contents of 40 C.F.R. 267, as added at 70 Fed. Reg. 45508, 53454 (Aug. 5, 2005) (reserving

subparts K through CC)

with

the table of contents of 35 Ill. Adm. Code 727 in the order

accompanying this opinion (leaving a large gap in numbering between Sections 727.290 and

727.900).

5

Since they were initially codified, the Board has maintained a linear correlation with the

substantive segments of the federal hazardous waste regulations. The State Section number has

been the corresponding federal section number plus 460.100. Thus, for example, 40 C.F.R.

265.314 correlated with 35 Ill. Adm. Code 725.414.

See

Proposed Regulations for RCRA, R81-

22, slip op. at 3 (Sept. 16, 1981). The only notable exception to this pattern has occurred when

the Board has encountered federal provisions that exceed the allowable four subsection indent

levels in their rules.

See

UIC Update, USEPA Regulations (January 1, 2005 through June 30,

2005), R06-5, RCRA Subtitle D Update, USEPA Regulations (January 1, 2005 through June 30,

2005 and August 1, 2005), R06-6, RCRA Subtitle C Update, USEPA Regulations (January 1,

2005 through June 30, 2005 and August 1, 2005), R06-7 (consolidated), (Jan. 5, 2006 and Feb. 2,

2006) at page 11. There has never been any effort to maintain structural parity between the State

and federal permit rules.

---

16

divisions in the Illinois regulations, organizing the federal sections into subsections for new

Subpart J of 35 Ill. Adm. Code 703 (corresponding with subpart J of 40 C.F.R. 270) and new

Subpart G of 35 Ill. Adm. Code 705 (corresponding with subpart G of 40 C.F.R. 124). In new 35

Ill. Adm. Code 727 (corresponding with 40 C.F.R. 267), the Board has combined all federal

sections in each federal subpart into a single State Section; each federal section appears as a

subsection at the first indent level.

6

The Board has appended a Board note to each subsection

that indicates the federal section from which it derives.

Fourth, segments of the federal regulations extend beyond the level of subsection indents

permissible under the

Illinois Administrative Code

format. This is made even more significant

by the Board’s having used the first indent level to combine several federal subsections into a

single

Illinois Administrative Code

Section. For example, codification of new 40 C.F.R.

267.143(f)(2)(i)(A)(

1

)(

i

) through (f)(2)(i)(A)(

1

)(

vi

) without relocation of material would have

required codification three indent levels below the permissible level of 35 Ill. Adm. Code

727.240(d)(6)(B)(i) (perhaps as 727.240(d)(6)(B)(i)(

a

)(

1

)(

A

) through (d)(6)(B)(i)(

a

)(

1

)(

F

)).

7

Instead, the Board moved provisions that would have required impermissible indent levels.

Finally, the Board notes that USEPA did not amend all general cross-references to the

hazardous waste rules to include new 40 C.F.R. 267. In fact, USEPA amended only one general

cross-reference in the rules to accommodate the adoption of new 40 C.F.R. 727. That cross-

reference is at 40 C.F.R. 261.7(a)(1) (corresponding with 35 Ill. Adm. Code 721.107(a)(1)). The

cross-reference now cites “parts 261 through 265, 267, 268, 270, or 124” (which the Board has

rendered as “35 Ill. Adm. Code 702, 703, and 721 through 728” in the Illinois regulations).

Many other general references to the rules still read “40 C.F.R. parts 260 through 266 and 268,”

“40 C.F.R. parts 262 through 265,” or in some other way that does not include new part 267.

The Board can see nothing unique about the cross-reference at 40 C.F.R. 261.7(a)(1) that

indicates USEPA intended it as the only general cross-reference to include new part 267. For

this reason, the Board has amended each general cross-reference in the Illinois regulations to

include new part 727. The Board has further examined the context of each and included or

excluded citations to the waste- and facility-specific standards of Part 726, the universal waste

management requirements of Part 733, the land disposal restrictions of Parts 728 and 738,

8

and

the used oil management standards of Part 739, as appears appropriate. Table 3, which begins on

6

Numbered (a), (b), (c), etc., as appropriate.

7

Further, since the

Illinois Administrative Code

codification requirements necessitates an

additional half inch of indent for each lower level of subsection, with the first indent level

starting two inches from the left margin of the page (

see

1 Ill. Adm. Code 100.340(b) (2004)),

the text of such a subsection at the seventh indent level would have been indented five inches

from the left margin.

8

The Board notes that Part 738 has traditionally been associated as underground injection

control regulations. One segment of the present amendments would redesignate Part 738 as a

segment of the hazardous waste regulations. See pages 11 and 12 of this opinion for discussion

of this redesignation.

---

17

page 66 of this opinion lists all the federal regulations that do not yet include 40 C.F.R. 267 to a

general citation to the hazardous waste regulations, the corresponding Illinois regulations, and

how the Board has updated each cross-reference to include.

To accommodate the changes in structure and movements of text described in the

foregoing paragraphs, the Board has added tables to the text of new Part 727 that indicate the

correlation between the State and federal Standardized Permit Rule provisions. Added Table A

of Appendix B to 35 Ill. Adm. Code 727 correlates the provisions added to 40 C.F.R. 124, 267,

and 270 to those added at 35 Ill. Adm. Code 703, 705, and 727. Added Table B of Appendix B

to 35 Ill. Adm. Code 727 correlates the added State provisions of 35 Ill. Adm. Code 703, 705,

and 727 to those from which they derived in 40 C.F.R. 124, 267, and 270. The Board has further

inserted Board notes at each provision of the permit rules to indicate the federal regulations from

which it derived.

See, e.g.,

the end Board note attached to 35 Ill. Adm. Code 702.110 (2004).

Where the Board found it necessary to deviate from the federal structure to move segments of

text, explanatory Board notes at the location from which the text was moved indicate the new

location of the text. Companion Board notes at the location to which the text moved indicate the

source location.

See, e.g.,

the end Board notes attached to 35 Ill. Adm. Code 727.240(d)(6)(A)

and (m) (2004) (indicating the movement of corresponding 40 C.F.R. 267.143(f)(1)). Table 4

which begins on page 68 of this opinion, itemizes the locations of the various federal

Standardized Permit Rule provision in the Illinois regulations.

9

The Board requested public comment on the incorporation of the September 8, 2005

federal Standardized Permit Rule. In particular, the Board requested comments on three specific

aspects of these amendments. First, the Board requested comments on the shift in style from

USEPA’s now customary question-and-answer format to a more traditional format of using

direct statements and imperatives for the rules. Second, the Board requested comments on the

structural deviations from the corresponding federal rules. Finally, the Board requested

comment on whether any or all of the generalized cross-references to the hazardous waste

regulations should be expanded to include the Parts 728 and 738 land disposal restrictions, the

Part 733 universal waste rule, and the Part 739 used oil standards. (See Table 3, which begins on

page 66 of this opinion, and which lists the cross references updated to include the Part 727

Standardized Waste Rule requirements.)

The Agency submitted several comments on the text of the proposed amendments. The

Board has review each comment and responded to each by either amending the text of the rules

or taking no action. Table C, which begins on page 284 of this opinion, itemizes in summary

form the changes made in the text in response to the Agency comments. Table D, which begins

on page 318, itemizes summary responses to each Agency suggestion that the Board has declined

to follow. There is no further discussion of most of the Agency suggestions other than what

appears in Tables C and D. On the other hand, several Agency suggestions warrant more

elaborate consideration and discussion. The following discussions consider the more significant

aspects of the Agency comments. The discussions are arranged by topic.

9

This Table 4 is essentially the same as Table A of Appendix B to Part 727, as added in the

order that accompanies this opinion.

---

18

Exceptions to the Applicability of the Standardized Permit Rule.

The Agency

questioned a series of exception declarations in the Standardized Permit Rule. These exception

references appear in the applicability provisions of each substantive segment of the rules.

10

The

applicability statements essentially say that the rules of Part 727 apply to the described facilities

“except as provided otherwise in Subpart A of 35 Ill. Adm. Code 721 or 35 Ill. Adm. Code

724.101(f) and (g).”

11

The Agency asked whether these are “exceptions intended to require the

reader to follow Part 721 and Section 724.101(f) and (g).” PC 1 at p. 2, ¶ 7. The Board’s

response is that these exceptions provide as follows: the Standardized Permit Rule does not

apply to (1) the management of any material other than regulated hazardous waste; and (2) any

treatment, storage, or disposal (T/S/D) activity that is not subject to the permitted facility

standards of 35 Ill. Adm. Code 724.

The first exception to the Standardized Permit Rule is as “provided otherwise” at Subpart

A of 35 Ill. Adm. Code 721. This Subpart A sets forth the definitions of “solid waste” and

“hazardous waste.” It further sets forth various exceptions to those definitions. In short, Subpart

A of Part 721 essentially defines what is a regulated hazardous waste. Hence, it defines the

scope of hazardous waste regulation. If a material is not a regulated hazardous waste, the person

managing that material is not subject to the hazardous waste regulations. Pursuant to Section

727.100(a)(2), that person’s management of that material is not subject to Part 727.

The second listed exception from the Standardized Permit Rule is as “provided

otherwise” at 35 Ill. Adm. Code 721.101(f). Subsections (f) of Section 724.101 defines an

exception to the applicability of the T/S/D facility standards for permitted facilities. The

reference to Section 724.101(f), however, actually has no substantive effect. Section 724.101(f)

directs attention to the corresponding federal provision, 40 C.F.R. 264.1(f), from which it

derives. That federal provision relates exclusively to the applicability of the federal standards,

and it has no direct counterpart in the Illinois regulations. The Board included subsection (f) in

the Illinois regulations to maintain structural consistency with the corresponding federal

regulations.

12

10

In addition to the general provisions of subpart A of 40 C.F.R. 267, the substantive segments

of the federal rule are subparts B, C, D, E, F, G, H, I, J, and DD of 40 C.F.R. 267. These federal

subparts each appear as an individual Section in the Illinois rules: general Section 727.100 and

substantive Sections 727.110, 727.130, 727.150, 727.170, 727.190, 727.210, 727.240, 727.270,

727.290, and 727.900, respectively. The applicability of each federal subpart is stated in the first

section of the subpart. Each refers back to the first section of subpart A, which actually states

the exception to applicability of the rules. Thus, translated into the Illinois regulations, the

applicability provision of each Section is set forth in subsection (a) of each Section. Each refers

back to the general applicability statement at Section 727.110(a), which actually sets forth the

applicability statement for the rules.

11

These provisions correspond with subpart A of 40 C.F.R. 261 and 40 C.F.R. 264.1(f) and (g).

12

The exception renders the federal standards of 40 C.F.R. 264 inapplicable in authorized states.

The 40 C.F.R. 267.1(b) reference to the exception of 264.1(f) essentially excludes from the

---

19

The exception from the Standardized Permit Rule is as “provided otherwise” at 35 Ill.

Adm. Code 721.101(g). The exception of Section 724.101(g) is material. Subsection (g) of

Section 724.101 defines another exception to the applicability of the T/S/D facility standards for

permitted facilities. It includes a number of exceptions of various hazardous waste management

activities from regulation under Part 724. Generally, those are limited facilities and activities

subject to various strict conditions that would render them not subject to the T/S/D facility

standards.

13

Thus, the exceptions from regulation under the Part 727 Standardized Permit Rule that

are set forth in 35 Ill. Adm. Code 727.100(a)(2) do not necessarily “require the reader to follow

Part 721 and Section 724.101(f) and (g),” as stated by the Agency. Instead, they except from

regulation under Part 727 those activities that are not regulated under the permitted T/S/D

facility standards. The management of a material that is not included in the definition of

“hazardous waste” and which is not exempted from regulation under Subpart A of Part 721 is not

subject to the Standardized Permit Rule requirements of Part 727.

14

Activities excepted from the

permitted T/S/D facility standards of Part 724 pursuant to Section 721.101(g) are also not subject

to the Part 727 Standardized Permit Rule. Thus, the applicability provision references to Subpart

A of 35 Ill. Adm. Code 721 and to 35 Ill. Adm. Code 264.101(g) exclude two enumerated

activities from regulation under Part 727: (1) those that do not involve management of regulated

hazardous waste; and (2) those that are excepted from the permitted T/S/D facility standards.

Corporate Guarantee for Foreign Corporations.

The Agency requested that the

Board substitute the language of 35 Ill. Adm. Code 724.247(g)(2) and (g)(3) for that proposed in

Section 727.247(q)(1) and (q)(2). PC 1 at p. 5, ¶ 25. This provision relates to a corporate

guarantee executed by a foreign corporation. After examination of the text of the rules, the

Board agrees and makes that substitution.

federal regulations of 40 C.F.R. 267 those facilities that are excepted from the federal permitted

facility standards of 40 C.F.R. 264 pursuant to 40 C.F.R. 264.1(f) because they are in an

authorized state. While the Board could delete the reference to 35 Ill. Adm. Code 721.101(f), it

remains in the text.

13

They include (1) permitted facilities that manage excluded small quantity generator hazardous

waste (subsection (g)(1)); (2) facilities managing certain recyclable materials or used oil

(subsection (g)(2)); (3) generators subject to the hazardous waste accumulation exclusion

(subsection (g)(3)); (4) certain farmers disposing of waste pesticides (subsection (g)(4)); (5)

totally enclosed treatment facilities (subsection (g)(5)); (6) certain elementary neutralization or

wastewater treatment units (subsection (g)(6)); (7) certain immediate response activities

(subsection (g)(8)); (8) transporters storing hazardous waste for a limited time in a transfer

facility (subsection (g)(9)); (9) certain persons mixing absorbent materials and waste in a

container (subsection (g)(10)); and (10) handlers or transporters of universal waste (subsection

(g)(11)).

14

Such activity is also not subject to the T/S/D facility standards of Part 724.

---

20

The text of 40 C.F.R. 267.147(g)(2) reads as follows:

(2)(i) In the case of corporations incorporated in the United States, a guarantee

may be used to satisfy the requirements of this section only if the Attorneys

General or Insurance Commissioners of the State in which the guarantor is

incorporated, and each State in which a facility covered by the guarantee is

located, have submitted a written statement to EPA that a guarantee executed as

described in this section and 40 CFR 264.151(h)(2) is a legally valid and

enforceable obligation in that State.

(ii) In the case of corporations incorporated outside the United States, a guarantee

may be used to satisfy the requirements of this section only if:

(A) The non-U.S. corporation has identified a registered agent for service of

process in each State in which a facility covered by the guarantee is located and in

the State in which it has its principal place of business; and

(B) The Attorney General or Insurance Commissioner of each State in which a

facility covered by the guarantee is located and the State in which the guarantor

corporation has its principal place of business, has submitted a written statement

to EPA that a guarantee executed as described in this section and 40 CFR

264.151(h)(2) is a legally valid and enforceable obligation in that State.

The text of 40 C.F.R. 267.147(g)(2) is substantively identical to that of 40 C.F.R. 264.147(g)(2).

The only differences are in format.

In the Illinois rules, 35 Ill. Adm. Code 724.247(g)(2) is derived from 40 C.F.R.

264.147(g)(2). The Board adopted Section 724.247(g)(2) in RCRA Update, USEPA Regulations

(July 1, 1986 through September 30, 1986), R86-46 (July 16, 1987). The Board chose not to

follow the above federal language when adopting that provision. In place of the above language,

the Board adopted the following:

1)

The guarantor must execute the guarantee in Illinois. The

guarantee must be accompanied by a letter signed by the guarantor

that states as follows:

A)

The guarantee was signed in Illinois by an authorized agent

of the guarantor;

B)

The guarantee is governed by Illinois law; and

C)

The name and address of the guarantor’s registered agent

for service of process.

2)

The guarantor must have a registered agent pursuant to Section

5.05 of the Business Corporation Act of 1983 [805 ILCS 5/5.05] or

Section 105.05 of the General Not-for-Profit Corporation Act of

1986 [805 ILCS 105/105.05].

---

21

The Board included the following discussion when adopting this different language:

40 CFB 264.147(g)(2) provides that corporate guarantees may be used

only if the Attorney General or the insurance commissioner of two states submit

written statements to USEPA that the guarantee is valid and enforceable. The

statements must come from officials in the state in which the facility is located

and the state in which the guarantor is incorporated. There are a number of

problems involved in translating this into State law.

There are several possible legal objections to this type of guarantee. The

first is that the guarantor is in a sense writing an insurance contract, and may be

subject to regulation as an insurer. The second objection has to do with the power

of the guarantor. It may be incorporated under a state law which does not allow

business corporations to write guarantees or insurance, or its articles of

incorporation may so limit it. The third objection is whether the person signing

the guarantee is an agent of the corporation with power to bind the corporation.

The fourth objection has to do with the law of guarantees, which may be very

restrictive in some states. There are also practical problems which would

confront states if they had to collect on these guarantees in the courts of other

states, since, unlike USEPA, they do not have offices and attorneys in all states.

The USEPA rule seems to require case-by-case certification where

USEPA administers the RCRA program. For the Illinois program, the facility is

always in Illinois. Therefore, the Board can get generic certification as to legality

in Illinois. The Illinois Department of Insurance

15

has advised the Board that

guarantees from parent corporations would not be subject to its regulation. (PC

#1). The problem is how to get certification as to out-of-state guarantors.

The Board addressed several options in the Proposed Opinion for getting

certification as to out-of-state guarantors. These included requiring each

guarantor to produce an Attorney General’s opinion for case-by-case review by

the Agency, or requesting generic certifications from nearby states to form the

basis of a list of acceptable states in the rule. The rules as adopted limit

guarantees to those in which the guarantor subjects himself to Illinois law. This

approach resolves some problems with the USEPA rule, and appears to be easy to

administer. (PC #4).

The USEPA rule requires a statement from the state of incorporation of

the guarantor. However, the validity of this type of guarantee is governed by the

law of the place where it is executed, not the law of the state of incorporation.

For example, consider a Delaware corporation with headquarters in New York

and a subsidiary with a facility in Illinois. If the guarantee were executed in New

15

This is now designated the Department of Financial and Professional Regulation, Division of

Insurance.

---

22

York, its validity, assuming the corporation had power to make guarantees, would

be a matter of New York law. The USEPA rule would not require certification

from New York. This is a major weakness, since many corporations have

headquarters in states other than the state in which they are organized. Another

major problem with the USEPA rule would be the expense associated with

enforcement by states of the guarantee in the courts of other states.

The Board rule requires officials of the parent corporation to come into

Illinois to execute the guarantee, to agree that the guarantee is governed by

Illinois law, and to agree to submit to Illinois Court jurisdiction. This makes the

question one of Illinois law, to which the Illinois Attorney General and

Department of Insurance can certify acting alone. It also avoids the problems of

enforcement in foreign courts. The power of the corporation to make the

guarantee would still be subject to question. There could be some limitation on

guarantees either in the law of the state of incorporation or in the articles of

incorporation. The Agency can insist on proof that the parent has the power to

make the guarantee on a case-by-case basis, just as it examines documents to

assure that the corporate officials have the power to act for the corporation.

The Board believes that the same considerations apply to the adoption of Section

727.240(q)(1) and (q)(2) today that applied to the adoption of Section 724.247(g)(2) and (g)(3)

in 1987. The use of the Section 724.247(g)(2) and (g)(3) language in Section 727.240(q)(1) and

(q)(2) enhances the clarity of the rules and makes the two provisions entirely consistent. It

appears that by the use of substantially identical language at 40 C.F.R. 264.147(g)(2) and 40

C.F.R. 267.147(g)(2), USEPA intended such consistency. Further, USEPA has reviewed the

language of Section 724.247(g)(2) and (g)(3) and approved it as adequate.

For the foregoing reasons, the Board agrees with the Agency. The Board has followed

the Agency’s suggestion and borrowed the language from Section 724.247(g)(2) and (g)(3) and

placed it in Section 727.240(q).

Permit Application by Interim Status Facilities.

The Agency pointed out in PC 1 that

40 C.F.R. 270.10(a)(3)

16

requires that a permit application meet the requirements of 40 C.F.R.

270.70 through 270.73.

17

The Agency further pointed out that these are requirements applicable

to interim status facilities. The Agency commented that the reference to 40 C.F.R. 270.70

through 270.73 may be more appropriate to 40 C.F.R. 270.10(a)(3). PC 1 at p. 7, ¶ 3.a. The

Board agrees that the language of 40 C.F.R. 270.109a)(3) is a bit confusing, but the adopted

rules incorporate no changes based on this Agency comment. Unless a deviation from the literal

text of the federal amendments clearly enhances the manifest federal intent, the Board prefers to

retain the federal language. In the present instance, that means restoring the text to more closely

follow the federal original.

16

Corresponding with 35 Ill. Adm. Code 702.120(b)(3) in the Illinois rules.

17

Corresponding with 35 Ill. Adm. Code 703.153 through 703.157 in the Illinois rules.

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23

The reference to 40 C.F.R. 270.70 through 270.73 was not added or amended in the

present rules, although its relative position has changed. As amended on September 8, 2006, 40

C.F.R. 270.10(a) provides as follows:

(a) Applying for a permit. Below is information on how to obtain a permit and

where to find requirements for specific permits:

(1) If you are covered by RCRA permits by rule (§ 270.60), you need not apply.

(2) If you currently have interim status, you must apply for permits when required

by the Director.

(3) If you are required to have a permit (including new applicants and permittees

with expiring permits), you must complete, sign, and submit an application to the

Director, as described in this section and §§ 270.70 through 270.73.

(4) If you are seeking an emergency permit, the procedures for application,

issuance, and administration are found exclusively in § 270.61.

(5) If you are seeking a research, development, and demonstration permit, the

procedures for application, issuance, and administration are found exclusively in

§ 270.65.

(6) If you are seeking a standardized permit, the procedures for application and

issuance are found in part 124, subpart G of this chapter and subpart J of this part.

The text of 40 C.F.R. 270.10(a) appeared as follows prior to the amendments (with the segment

from which USEPA appears to have drawn subsection (a)(3) underlined for emphasis):

(a) Permit application. Any person who is required to have a permit (including

new applicants and permittees with expiring permits) shall complete, sign, and

submit an application to the Director as described in this section and §§ 270.70

through 270.73. Persons currently authorized with interim status shall apply for

permits when required by the Director. Persons covered by RCRA permits by

rule (§ 270.60), need not apply. Procedures for applications, issuance and

administration of emergency permits are found exclusively in § 270.61.

Procedures for application, issuance and administration of research, development,

and demonstration permits are found exclusively in § 270.65.

It is clear that both prior to and after the September 8, 2006 amendments, the reference to 40

C.F.R. 270.70 through 270.73 is in the sentence relating to a person required to have a permit,

and it is separate from the sentence relating to interim status. It would, thus, appear

inappropriate to follow the Agency suggestion to associate the reference with subsection (a)(2)

relating to interim status.

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24

The Agency is correct that 40 C.F.R. 270.70 through 270.73 pertain only to interim status

facilities, but the citation is necessary to complete the reference to the permit application

requirements in 40 C.F.R. 270.10(a). The reference to 40 C.F.R. 270.70 through 270.73 in 40

C.F.R. 270.10(a) has essentially existed unchanged since the inception of the hazardous waste

regulations. USEPA adopted consolidated permit rules together with the initial RCRA

hazardous waste regulations in May 19, 1980. Section 122.4(a) of the consolidated permit rules

required a permit application “as described in this section and in §§ 122.23 (RCRA), 122.38

(UIC), 122.53 (NPDES), and 123.94 (404).” 40 C.F.R. 122.4(a) (1980). USEPA later

deconsolidated the permit rules, and 40 C.F.R. 122.4(a) and 122.23 became 40 C.F.R. 270.10(a)

and 270.70 through 270.73.

See

48 Fed. Reg. 14146, 14152 (April 1, 1983) (correlation table).

USEPA later corrected section 270.10(a) to add the omitted reference to sections 270.70 through

270.73. 48 Fed. Reg. 30113, 30114 (June 30, 1983). In the initial adoption of the reference to

40 C.F.R. 122.23 (which later became 40 C.F.R. 270.70 through 270.73), by its reference to “this

section and in §§ 122.23 (RCRA), . . .” USEPA referred to all the existing RCRA permit

application requirements.

18

Examination of sections 270.70 through 270.73 indicates that they include some permit

application requirements. Sections 270.70(b), 270.71(a)(3), and 270.72(a) pertain to the Part A

permit application. Section 270.73 contains references to the Part B permit application. All

these references, however, relate to obtaining, maintaining, and the termination of interim status;

none relate directly to application for a RCRA permit. When USEPA adopted the original

reference at section 122.4(a) to “this section” and section 122.23, no facilities had permits, and

most existing facilities operated under interim status. The references to sections 122.4 (entitled

“Application for Permit”) and 122.23 (“Interim Status”) were the only requirements for a permit

application, and they were more significant for that reason. When USEPA adopted section

122.4, a citation to the permit application requirements required citation to both sections 122.4

and 122.23.

When the Board adopted 35 Ill. Adm. Code 702.120, to correspond with 40 C.F.R. 122.4,

that provision cited “this Section and Sec. 703. (RCRA) and Sec. 704.161(UIC)” (Underground

Injection Control (UIC), R81-32 (May 13, 1982)) for the permit application requirements. The

Board added a note to the provision explaining that the Part 703 rules would later be added.

See

Underground Injection Control (UIC)

, R81-32 (May 13, 1982). The Board later added those

rules and changed “Sec. 703.” to “35 Ill. Adm. Code 703.180”.

See

Phase II RCRA Rules

, R82-

19 (July 26, 1983). Section 703.180, however, did not derive from any particular federal

provision. Phase II RCRA Rules, R82-19 (July 26, 1983) at 31;

see

35 Ill. Adm. Code 703.180

(1984) (lacking a Board note);

see also

35 Ill. Adm. Code 703.153 through 703.157 (1984) (with

Board notes collectively ascribing the provisions to 40 C.F.R. 122.23).

Section 702.120 retained this reference to Section 703.180 until the present amendments.

By changing the citation in the present amendments, the Board essentially proposed reverting the

18

There was another provision relating to permit application by existing facilities. USEPA

stated that it later codified this section 122.22 as 40 C.F.R. 270.10(a) through (h).

See

48 Fed.

Reg. at 14152.

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25

citation to that contained in the corresponding federal rule, 40 C.F.R. 270.10(a). USEPA cited

“this section” and 40 C.F.R. 270.70 through 270.73. Section 270.10 in its various segments

corresponds with Sections 702.120 through 702.124, 703.125, 703.126, 703.150 through

703.152, 703.157, 703.186, and 703.188. Sections 270.70 through 270.73 correspond with

Sections 703.153 through 703.157. Thus, if the Board is to follow the literal text of the federal

cross-reference the reference to “this section” and 40 C.F.R. 270.70 through 270.73, in the

aggregate, would require citation to Sections 702.120 through 702.124, 703.125, 703.126,

703.150 through 703.157, 703.186 and 703.188 in the Illinois regulations. While extreme in

length when rendered in corresponding Illinois provisions, and despite the fact that the RCRA

Standardized Permit Rule does not generally apply to interim status facilities, as noted by the

Agency (PC 1 at 7;

see

35 Ill. Adm. Code 727.100(b)), USEPA referred to 40 C.F.R. 270.70

through 270.73, and the Board cannot determine a different meaning.

The Agency asserted in PC 1 that this reference requires compliance with the interim

facility provisions of 35 Ill. Adm. Code 703.153 through 703.157 (corresponding with 40 C.F.R.

270.70 through 270.73) and the requirements of Sections 702.120 through 702.124, 703.125,

703.126, 703.150 through 703.152, 703.186, and 703.188. The Agency claims that this is not

consistent with corresponding 40 C.F.R. 270.10(a)(3). PC 1 at 8, ¶ 3.b. The Board believes that

the Agency misreads Section 702.120(b)(3). Subsection (b)(3) states in pertinent part as follows:

3)

If the facility owner or operator is required to have a permit . . ., it must

complete, sign, and submit an application to the Agency, as described in

this Section; in Sections 702.120 through 702.124; and in 35 Ill. Adm.

Code 703.125, 703.126, 703.150 through 703.157, 703.186, and 703.188.

Thus, it is only the requirements for completing, signing, and submitting a permit application

that are referenced in this provision. This is reinforced by examination of the cited provisions.

The Agency does not cite any particular requirement beyond completing, signing, and submitting

a permit application that is included in these citations, and the Board has found none.

Finally, the Agency commented that Section 702.120(b)(3) “leaves out a significant

amount of critical information that needs to be provided in an application for a new or expiring

permit.” PC 1 at 8. The Agency suggested that the Board revise the citation to refer to Subpart

B of 35 Ill. Adm. Code 702 and Subpart D of 35 Ill. Adm. Code 703, which both relate to permit

applications. PC 1 at 8, ¶ 3.c. These Subparts embrace Sections 702.120 through 702.126 and

703.180 through 703.214 (which correspond with 40 C.F.R. 270.10, 270.11, 270.13, 270.15

through 270.28, and 270.51). While this is possibly superior to the citations set forth by USEPA

in 40 C.F.R. 270.10(a)(3), the suggestion goes beyond the text of 40 C.F.R. 270.10(a)(3). The

Board cannot see that this deviation from the federal text is clearly within the manifest intent of

USEPA. The Board will not follow this Agency suggestion.

One alternative is for the Board to retain the existing citation in Section 207.120 to “this

Section and 35 Ill. Adm. Code 703.180,” as the Board ultimately rendered the federal “this

section and § 122.23” in R82-19, in 1983. This alternative has the dual advantages of being

simple and avoiding citation to interim status facility provisions. Further, USEPA has reviewed

and approved this is segment of rules.

See

51 Fed. Reg. 3778 (January 30, 1986). The Board

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26

chooses not to use this alternative, however, because the citation to Section 703.180 is not

equivalent to 40 C.F.R. 270.70 through 270.73. Further, Section 703.180(a) and (b) are

essentially an outline of the regulations, and Section 703.180(c) is an outline of the contents of a

permit application. Section 703.180 does not impose requirements. For these reasons, the Board

will retain without change the language in Section 702.120(b)(3) that was included in the

proposal for public comment.

Reissuance of a RCRA Permit as a RCRA Standardized Permit.

The Agency

submitted comments on three separate aspects of reissuance of an existing permit as a RCRA

standardized permit. These comments related to (1) the need for a reference to clarify that a

request for a RCRA standardized permit is a basis for Agency modification or reissuance of an

existing permit; (2) the need to refer to the revocation of an existing RCRA permit upon issuance

of a RCRA standardized permit; and (3) the need to clarify the procedures for partial reissuance

of an existing RCRA permit to sever units and covered them under a separate RCRA

standardized permit. The following opinion segments discuss each set of comments separately

in turn.

The Suggested Need for a Reference to a Request for a RCRA Standardized Permit as

the Basis for Permit Modification or Reissuance.

The Agency requested revision of the rules

pertaining to permit modification or reissuance.

19

The Agency asserts that the general provision

relating to permit reissuance sets forth grounds for permit modification or reissuance that do not

include exchanging a RCRA permit for a RCRA standardized permit as a permissible reason for

permit modification or reissuance. The Agency offered two alternative suggestions for

correcting this. The first suggestion is that the Board add to the general provision a cross-

reference to the provision for exchanging a RCRA permit for a RCRA standardized permit.

Alternatively, the Agency requested that the Board move a provision relating to the availability

of a RCRA standardized permit to a permitted facility from new Subpart G of Part 705 (relating

to the procedure for RCRA standardized permits) to the provision that sets forth the causes for

modification or reissuance of a RCRA permit. PC 1 at p. 12, ¶ 27.

After examination of the text of the amendments, the Board finds that directly following

either Agency suggestion would add amendments not included in the federal amendments. The

text cited by the Agency refers to a segment of text that USEPA did amend to include a request

for a RCRA standardized permit as a basis for permit modification or reissuance. The

corresponding segment of the Illinois rules includes a parallel amendment. No amendments

corresponding with either Agency suggestion was included in the amendments made by USEPA.

Thus, the Board did not include such an amendment in the proposal for public comment. D

USEPA amended 40 C.F.R. 124.5(c)(1) to accommodate modification or reissuance of a

RCRA permit as a RCRA standardized permit. Section 124.5(c)(1) pertains to application for

modification or reissuance. USEPA further amended the preamble to 40 C.F.R. 270.41 and

19

The federal rules refer to revocation and reissuance of the permit. The Board has always

referreed to this as reissuance of the permit. The end of this opinion segment considers another

Agency comment relating to the issue of permit revocation.

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27

subsection (b)(3) to accommodate modification or reissuance of a RCRA permit as a RCRA

standardized permit. The amendment to the preamble to 40 C.F.R. 270.41 expands the

procedures to be used for permit modification to include the procedures pertaining to RCRA

standardized permits. The amendments to 40 C.F.R. 270.41(b)(3) make a permittee’s request for

a RCRA standardized permit a cause of permit modification or reissuance. The Board included

equivalent amendments to 35 Ill. Adm. Code 703.270, 703.272(c), and 705.128(c)(1), which

correspond with 40 C.F.R. 270.41 preamble, 270.41(b)(3), and 124.5(c)(1), respectively.

The Board disagrees with the Agency suggestions that the USEPA amendments do not

reference the procedures for issuance and limit the availability of a RCRA standardized permit.

While 40 C.F.R. 124.5(a) does not expressly refer to the procedures of Subpart G of part 124,

that subsection does refer to 40 C.F.R. 270.41. The preamble to 40 C.F.R. 270.41 refers to the

RCRA standardized permit procedure of subpart G of part 124, and section 270.41(b)(3) states

that a request for a standardized permit is a basis for permit modification or reissuance.

Thus, the Board does not believe that the reference in 35 Ill. Adm. Code 705.128(a) to

Sections 703.270 through 703.273 for the reasons for permit modification or reissuance limits

the availability of permit modification or reissuance for a RCRA standardized permit. It is not

necessary to include a reference to Section 705.301(b) at Section 705.128(a), as requested by the

Agency. It is further not necessary to follow the Agency’s alternative and move the Section

705.301(b) statement of availability of a RCRA standardized permit to a permitted facility to

Subpart G of Part 703. The federally derived amendments to Sections 703.270, 703.272(c), and

705.128(c)(1) clearly refer to the availability of a RCRA standardized permit to a permitted

facility and the procedures for obtaining one. Section 705.128(a) very clearly directs attention to

Sections 703.270 through 703.273, which includes these references.

The Board has not revised the language of Section 705.128(a) in response to the Agency

suggestions in PC 1 to include a reference to Subpart G of Part 703. The Board has also not

followed the Agency alternative suggestion and moved the text of Section 705.301(b) to into

Section 702.272(c).

The Suggested Need to Refer to the Revocation of an Existing Permit Upon Issuance

of a RCRA Standardized Permit.

A second Agency comment relates to reissuance of a permit

as a RCRA standardized permit. This second comment concerns the Board’s omission of federal

language relative to revocation of the existing permit. The Illinois rule references reissuance of

the permit, not revocation and reissuance like the corresponding federal rule. The Agency

asserts that this makes the Illinois regulations inconsistent with the federal rules. The Agency

suggested that the Board should add a reference to permit revocation. Alternatively, the Agency

suggests that the rule should cite the provision relative to revocation, termination, or ending of a

permit, Section 702.186. PC 1 at p. 12, ¶ 28. As explained below, the Board will not add a

reference because permit revocation is limited to the context of an enforcement action under the

Act.

The Board adopted the initial segments of the RCRA Subtitle C and UIC permit rules in

1982.

See

Underground Injection Control, R81-32 (May 13, 1982). The Board removed

references to permit revocation from those original rules based on an Agency proposal. The

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28

Board agreed with the Agency that revocation is possible in Illinois only as a result of a Board

order finding of violation pursuant to Section 33(b) of the Act. 415 ILCS 5/33(b) (2004);

see

35

Ill. Adm. Code 702.186 (2004). The Board’s opinion accompanying the adoption of those rules

stated as follows:

The Board intends to reserve to itself authority to revoke or terminate permits

pursuant to Section 33(b) of the Environmental Protection Act [See also Sections

702.161(b) and 705.128(d)].

Underground Injection Control, R81-32 at p. 5 (discussing the Section 702.110

definition of “draft permit”).

[S]ection 33(b) of the Illinois Act . . . gives the Board exclusive authority to

revoke permits. * * * If the Agency finds a need for modification or revocation, it

may require a new application. This is intended to accomplish the same result as

the federal rule, without conferring revocation authority on the Agency.

Underground Injection Control, R81-32 at p. 7 (discussing the revisions that

dropped “revocation” from Section 702.161).

40 CFR 122.15, 122.16 and 122.17 provide procedures for revocation and

reissuance of permits by USEPA. The Agency proposal modified the federal

language on revocation to provide for revocation only pursuant to a Board action.

This is necessary because the Board has exclusive authority to revoke permits

[Section 33(b) of the Illinois Act]. * * * The Board will adopt the language as

proposed by the Agency.

Underground Injection Control, R81-32 at p. 8 (discussing Section 702.183,

which was later moved to Section 703.270).

Thus, the Agency cannot revoke a permit. For this reason, the Board has generally

avoided using the word “revoke” in the context of an Agency action on a permit.

20

The Board

believes that the federal references to permit revocation and reissuance are equivalent to Illinois

references to permit reissuance and that the use of the word “revoke” is unnecessary. The

references to reissuance of the permit that do not include reference to permit revocation are

wholly consistent with the corresponding federal rules without adding reference to permit

revocation. No reference to revocation is necessary.

The Agency comments focus on a situation where a permittee has voluntarily replaced its

existing RCRA permit with a RCRA standardized permit. When the permittee obtains a reissued

permit, that reissued permit supersedes its original permit. The Board believes that the original

RCRA permit has no continued vitality when the permittee accepts the permit reissued as a

20

There are a handful of instances where the Board inadvertently added references to permit

revocation when adding federal amendments over the years. The Board has reviewed the text of

the rules and today removed those references, as discussed in the concluding paragraphs of this

segment of the discussion.

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29

RCRA standardized permit. Thus, the permittee cannot later claim a right to operate under its

original RCRA permit.

The Agency further suggested that the Board add to Section 705.301(b) a reference to the

provisions applicable to revocation or termination of a permit. The Board disagrees that this is

desirable. As stated above, permit revocation is restricted to the context of an enforcement

action. Section 702.186 is the provision relating to permit revocation, and none of its bases for

revocation would apply to a situation where the permittee requests reissuance of its permit as a

RCRA standardized permit. The Board has added no reference to permit revocation in Section

705.301(b).

The Board has chosen not to directly follow the Agency suggestions relating to

references to permit revocation or termination in text of the rules. Instead, the Board has added

language to the Board note appended to Section 703.270, the key provision relating to reissuance

of a permit, to explain this departure from the federal text and the Board’s intent as to the effect

of reissuance on the prior permit. The Board added the following language to the note:

The Board has chosen to use “reissue” where the corresponding federal

provisions use “revoke and reissue.” This was because permit revocation is a

remedy in the context of an enforcement action that is reserved to the Board. See

415 ILCS 5/33(b) (2004); 35 Ill. Adm. Code 702.186 (2004). The Board intends

that a reissued permit completely supercede the earlier version of that permit.

Prompted by the Agency comments, the Board has further reviewed the text of the

existing rules to determine if any appearances of permit revocation had crept into the rules over

the years. The Board did find a handful of appearances and made appropriate corrections to

remove inappropriate references to permit revocation where permit reissuance is intended. The

following tabulated listing summarizes these amendments:

Section

Amendment

702.146

Changed “revocation” to “reissuance”

702.148

Changed “modifying, revoking and reissuing, or terminating this

permit” to “modifying or reissuing this permit”

702.161(a)(2)

Changed “modified, revoked, or a minor modification” to

“modified, reissued, or a minor modification”

702.181(a)

Changed “modified, reissued, or revoked ” to “modified or reissued”

703.304(b)(3)

Changed “modified, revoked and reissued, or terminated” to

“modified or reissued, or terminated; changed “revoked and

reissued” to “reissued”

703.303(b)(2)(C)

Changed “revoking and reissuing” to “reissuing”

703.304 heading

Changed “Modified, Revoked and Reissued, or Terminated” to

“Modified, Reissued, or Terminated”

703.304(a)

Changed “modified, revoked and reissued, or terminated” to

“modified, reissued, or terminated” (twice); changed “modification,

revocation and reissuance, or termination” to “modification,

reissuance, or termination” (twice)

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30

703.304(c)

Changed “revoke and reissue” to “reissue”

703.304(c)(1)

Changed “revoke and reissue” to “reissue”; changed “revocation and

reissuance” to “reissuance” (twice); changed “modify or revoke and

reissue” to “modify or reissue”; changed “modification or

revocation and reissuance” to “modification or reissuance”

703.304(c)(2)

Changed “revocation and reissuance” to “reissuance”

This search of the text prompted one additional revision to the text. In this revision, the

Board added “reissuance” to complete a reference that legitimately included the word

“revocation.” That revision is as follows:

Section

Amendment

702.186(d)

Changed “modification or revocation” to “modification, reissuance,

or revocation”

The Suggested Need to Clarify the Procedures for Partial Reissuance Of an Existing

Permit to Sever Units to Cover Them Under a Separate RCRA Standardized Permit.

A third

Agency comment relates to reissuance of a permit as a RCRA standardized permit. This third

comment concerns modification of an existing permit to sever units that will be covered by a

RCRA standardized permit. The rules provide that the Agency may modify the RCRA permit to

sever units eligible for a RCRA standardized permit and issue a RCRA standardized permit as to

the eligible units. The Agency asks what procedures apply to modification of the RCRA permit.

The Agency asks whether Section 705.128 would apply. PC 1 at p. 12-13, ¶ 29.a.

The Agency further questions the correctness of the reference to the Section 705.302(a)

procedure for permit issuance in the provision relating to modification of a RCRA permit to

sever ineligible units and issuance of a RCRA standardized permit as to eligible units. The

Agency concedes the fact that this cross-reference corresponds precisely with one in thed federal

regulation from which it was drawn. The Agency believes that the appropriate reference would

cite the Section 705.301(a) provision for permit application, which corresponds with 40 C.F.R.

124.202. In support of this second suggestion, the Agency asks, “[C]ould the Agency simply

issue a draft standardized permit upon a request from an owner/operator without first receiving a

permit application that is accompanied by all the required information?” PC 1 at p. 1213, ¶ 29.b.

The Board agrees that the language of the federal rule is a bit confusing in its references

to the procedures for permit issuance or modification or reissuance. The Board has revised the

language in the adopted version of the rule to overcome the lack of clarity. Further, the Board

agrees that the Agency must issue a RCRA standardized permit based on a permit application

that includes all required information. The Board disagrees, however, as to the Agency’s

suggestion that the reference to Section 705.302(a) should refer to Section 705.301(a). The

existing rule, as directly derived from the federal text, would impose the application

requirements of Section 705.301(a). The Board finds no need to change the cross-reference.

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31

Based on the addition of 40 C.F.R. 124.203, 35 Ill. Adm. Code 705.301(b) provides for

the reissuance of an existing RCRA permit as a RCRA standardized permit. It includes two

substantive sentences.

21

The first substantive sentence of Section 705.301(b) provides for the situation where all

units at the facility are eligible for a RCRA standardized permit. As drafted by USEPA, this

sentence requires issuance of the RCRA standardized permit “in accordance with 35 Ill. Adm.

Code 705.128,” which corresponds with 40 C.F.R. 124.5. Section 705.128, as amended,

generally applies to all instances of permit modification or reissuance. It directs attention to one

set of procedures where the permit action does not relate to a RCRA standardized permit, and it

directs attention to the RCRA standardized permits procedures where that type of permit is

involved. Thus, in the sentence pertaining exclusively to RCRA standardized permits, the

federally derived language of the first substantive sentence of Section 705.301(b) refers to the

procedures for reissuance of a RCRA permit in addition to those for reissuance as a RCRA

standardized permit.

The second substantive sentence provides for the situation where fewer than all units at

the facility are eligible for a RCRA standardized permit. This second sentence allows

modification of the RCRA permit to remove the units eligible for a RCRA standardized permit

and issuance of a RCRA standardized permit for the eligible units “in accordance with Section

705.302(a),” which corresponds with 40 C.F.R. 124.204.

The structure of the two substantive sentences of Section 705.128 appears inconsistent, as

pointed out by the Agency. The federally derived rule refers to Section 705.128 only in the

context of a RCRA standardized permit. The rule further refers to Section 705.302(a) in the

context of modification of a RCRA permit and issuance of a RCRA standardized permit. The

Board can see no reason why USEPA would want to limit that applicability of either provision in

the way implied by association in Section 705.301(b).

It would seem that the provisions of Section 705.128 should apply to all instances of

permit modification or reissuance, whether that results in a regular RCRA permit or a RCRA

standardized permit. Similarly, it would seem that the provisions of Section 705.302(a) relating

to the preparation of a draft RCRA standardized permit should not be limited to where there is

severance of an existing RCRA permit. Further, if a RCRA permit is to be modified to sever

some units and a RCRA standardized permit is to be issued as to the severed units, there is no

reason each reissued permit should not be considered separately under separate procedural

pathways. Separate procedural pathways would appear the only way to manage each permit

under the differing rules applicable to a regular RCRA permit and a RCRA standardized permit.

The Agency can manage the each permits in such a way that their collective management is not

completely separate. Such would facilitate public participation in the process and ease the

administrative burden on the Agency.

21

The Illinois provision includes three sentences. The first sentence, which is introductory, is

derived from the heading to 40 C.F.R. 124.203.

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32

The Board has altered the language of Section 705.301(b) in response to the Agency

comments. The Board removed “in accordance with Section 705.128” from the first sentence

pertaining to reissuance of a RCRA permit as a RCRA standardized permit applicable to all units

at a facility. The Board removed “in accordance with Section 705.302(a)” from the second

sentence pertaining to modifying a RCRA permit to sever ineligible units and issuing a RCRA

standardized permit applicable to the eligible units at a facility. The Board added two sentences

to the end of Section 705.301(b) that state as follows:

The Agency must modify or reissue any permit in accordance with 35 Ill. Adm.

Code 705.128. The Agency must issue any RCRA standardized permit (or

reissue a RCRA permit as a RCRA standardized permit) in accordance with

Section 705.302(a).

The Board believes that this overcomes the lack of clarity in the text of this provision.

Finally, the Board does not believe it necessary or appropriate to change the cross-

reference from Section 705.302(a) to Section 705.301(a). Section 705.302(a) sets forth the

procedure for issuance of a draft RCRA standardized permit by the Agency. Section 705.301(a)

sets forth the procedure for application by the regulated entity for a RCRA standardized permit.

Section 705.301(b) relates to the issuance of a RCRA standardized permit, not the application for

one. Thus, it would appear that USEPA intended a reference to the procedure for issuance of the

draft permit in the subsection, rather than to the provision pertaining to application for one.

In response to the Agency query whether the Agency could issue a RCRA standardized

permit on request without first receiving an application with all required information, the Board

responds that the Agency cannot, for two fundamental reasons. The first is that the RCRA

standardized permit rule mandates the submission of adequate information. The second is that

the Act indirectly requires the submission of an application containing adequate information to

the Agency.

As to the first fundamental reason that the Agency cannot issue a RCRA standardized

permit without receipt of adequate supporting information from the applicant, the RCRA

standardized permit rule includes information requirements. Section 705.302(a)(2)(B)(i)

prohibits the Agency from issuing a draft RCRA standardized permit unless the applicant has

submitted information sufficient to support the application. The required information is fairly

detailed. (

See

35 Ill. Adm. Code 703.351(b) and 705.302(a)(2)(B)(i) (2004).) The facility owner

or operator must further maintain more detailed information at the facility. (

See

35 Ill. Adm.

Code 703.352 (2004).) That information is also available to the Agency.

The second fundamental reason the Agency cannot issue a RCRA standardized permit

without receipt of an application containing adequate supporting information is that such is

prohibited by the Act and Board rules. The Act requires the Agency to find that no violation of

the Act or Board regulations would occur as a result of permit issuance before it can issue a

permit.

See

415 ILCS 5/ 39(a) and (d) (2004). The Agency cannot reasonably make such a

finding without adequate information at its disposal. Moreover, the rules specify those instances

in which the Agency can reopen an already issued permit. The regulations adopted today require

---

33

submission of that information to the Agency with any application for a RCRA standardized

permit.

Relationship to Applicability of the Cleanup Standards of Subpart S of Part 724 to an

Interim Status Facility.

The Agency observed in PC 1 that Section 727.100(b) states in

pertinent part as follows:

Relationship to interim status standards. A facility owner or operator that has

fully complied with the requirements for interim status . . . must comply with the

regulations specified in 35 Ill. Adm. Code 725 instead of the regulations in this

Part, until final administrative disposition of the RCRA standardized permit

application is made, except as provided in Subpart S of 35 Ill. Adm. Code 724.

The Agency states that this provision agrees with 40 C.F.R. 727.2, from which it is derived. The

Agency then comments as follows:

[I]t is unclear why a regulation directed at a facility with interim status

(Section 727.100(b)) would refer to the Special Provisions for Cleanup (the

regulations for CAMUs, temporary units, etc.) in Subpart S of Part 724 (or 40

CFR 264). Neither Subpart S of Part 724 nor Section 725.101 (Purpose,

Scope, and Applicability) make any reference to an exception to the interim

status standards in Subpart S of Part 724.

(PC 1 at p. 14, ¶ 41.)

The Agency does not request modification of the rule. PC 1 at p. 14, ¶ 41. The Board will,

therefore, not modify the rule text. Rather, the Board hopes to clarify the rule by brief discussion

in this segment of the discussion.

The language of Section 727.100(b), which the Agency questions, is echoed elsewhere in

the hazardous waste regulations. Section 724.103 states as follows:

A facility owner or operator that has fully complied with the requirements for

interim status--as defined in Section 3005(e) of RCRA and regulations under 35

Ill. Adm. Code 703, Subpart C--must comply with the regulations specified in 35

Ill. Adm. Code 725 in lieu of the regulations in this Part, until final administrative

disposition of his permit application is made, except as provided under Subpart S

of this Part.

The purpose of this language in Section 724.103 is to allow application of the standards of

Subpart S of Part 264 to corrective action management units (CAMUs) or temporary units (TUs).

Subpart S is called the CAMU rule. The CAMU rule applies to corrective actions under the

permitted facility standards of Part 724, and to interim status facilities pursuant to a USEPA

cleanup order.

22

Thus, under Section 724.103, the permitted facility standards of Part 724 do not

22

See

35 Ill. Adm. Code 724.651(a) (2004) (available to “implement remedies under Section

---

34

apply to an interim status facility, except as such a facility is regulated as a CAMU or TU under

the CAMU rule. The purpose of the CAMU rule is to facilitate site remediation at permitted and

interim status facilities.

23

USEPA only briefly discussed the addition of language parallel to 40 C.F.R. 264.3

(corresponding with 35 Ill. Adm. Code 724.103) at 40 C.F.R. 267.2 (corresponding with Section

727.100(b)). The entire USEPA discussion stated as follows:

The final § 267.2 provisions are similar to the § 264.3 provisions. If you are

currently complying with the requirements for interim status, you will need to

continue to comply with the interim status standards specified in part 265 until

final disposition of your standardized permit application. We received no

significant comments on this section. Thus, the § 267.2 requirements are

finalized, as proposed.

70 Fed. Reg. at 53431 (Sept. 8, 2005).

This discussion indicates no more than USEPA’s contemplation that some interim status

facilities would become subject to the RCRA standardized permit rule pending application for a

RCRA permit. By the reference to the CAMU rule, however, the Board believes that USEPA

intended some application of the RCRA standardized permit rule at interim status facilities

regulated under the CAMU rule.

Thus, the Board believes that the language of Section 724.103 at new Section 727.100(b),

USEPA appears to condone the use of a RCRA standardized permit to achieve site remediation

at interim status facilities. The statement is essentially that the RCRA standardized permit rule

does not apply to any interim status facility, except to the extent that facility is regulated as a

CAMU or TU under the CAMU rule. Under the federal scheme, therefore, it would appear that

that the Agency could apply the RCRA standardized permit rule to an interim status facility that

is regulated under the CAMU rule. USEPA has not yet prescribed standardized provisions for

corrective action in the RCRA standardized permit rule, however, so any corrective action

conditions are to be derived in the non-standardized supplemental portion of the permit. 35 Ill.

Adm. Code 727.300(a)(2)(A);

see

70 Fed. Reg. 53420, 53433-34 (Sept. 8, 2005) (discussing the

current lack of standardized remedial action provisions in the rule).

724.201 or RCRA section 3008(h)”);

see also

42 U.S.C. 6928(h) (2002) (authorizing USEPA to

order remedial action at an interim status facility from which there has been a release of

hazardous waste into the environment).

23

USEPA stated the purpose of the CAMU rule in the preamble discussion of its adoption: “In

creating the CAMU as a remediation waste management unit, [US]EPA is providing remedial

decisionmakers with an added measure of flexibility in order to expedite and improve remedial

decisions.” 58 Fed. Reg. 8658, 8659 (Feb. 16, 1983). USEPA stated, “The [CAMU rule]

defines the process for establishing cleanup goals, defines the process for and principles of

remedy selection, and, requires that remedies meet the statutory standard of ‘protective of human

health and the environment.’”

Id.

---

35

Suggested Change from Biennial Reporting to Annual Reporting.

The Agency

highlighted a discrepancy in Section 727.170(f)(1) (derived from 40 C.F.R. 267.75(a)). This

provision requires preparation and submission of biennial reports on facility operations. The

discrepancy is that the reports are required every other year to contain information on the

“previous calendar year.” The Agency pointed out that this requires submission of information

on only every other calendar year. The Agency suggested that the Board should alter the federal

language to require annual reporting, rather than biennial reporting. The Agency points out that

this is would make the reporting consistent with all other reporting under the permitted facility

standards of Part 724. The Agency cites Sections 703.246(c) and 724.175 as examples of

provisions where the Board has required annual reporting. PC 1 at p. 15, ¶ 46.

The Board has corrected the discrepancy in the federally derived language, but not in the

way suggested by the Agency. The federal language at 40 C.F.R. 267.75(a) requires biennial

reporting. Were the Board to require annual reporting, the Illinois regulations could arguably

become more stringent than the corresponding federal rule. The goal of an identical-in-

substance proceeding is for the Board to implement the federal requirements in the Illinois

regulations. For this reason, the Board will not change the biennial reporting requirement to a

requirement for annual reporting. Rather, the Board will correct the recordkeeping requirement

of Section 727.170(f)(1) to change “previous calendar year” to “previous two calendar years”

and so cure the discrepancy in the rule.

The Board believes that the use of annual reporting for submission of facility activities

reports is an error in Sections 703.246(c) and 724.175.

24

USEPA originally adopted 40 C.F.R.

264.75 to require annual reporting in the adoption at 45 Fed. Reg. 33154, 33227 (May 19,

1980).

25

The Board adopted annual reporting in Phase II RCRA Rules, R82-19 (July 26, 1983).

USEPA amended section 264.75 to require biennial reporting at 48 Fed. Reg. 3977, 3982

(Jan. 28, 1983). At the request of the Agency, however, the Board did not make a corresponding

change to biennial reporting in RCRA and UIC Update, R84-9 (June 13, 1985) at 4-5. The

Board now believes that this was an error in the context of an identical-in-substance proceeding.

Nevertheless, the Board does not believe that this proceeding is the appropriate context for

effecting a correction.

24

Section 703.146(c) corresponds with 40 C.F.R. 270.30(l)(9), and Section 724.175 corresponds

with 40 C.F.R. 264.75. The actual reporting requirement is set forth in Section 724.175. Section

703.246(c) requires that submission of the reports must appear as a condition of a RCRA permit.

25

USEPA originally adopted 40 C.F.R. 270.30(l)(9) as 40 C.F.R. 122.28(e)(3), as a segment of

the consolidated permit rules. The original provision reflected the annual reporting requirement

of 40 C.F.R. 264.75.

See

45 Fed. Reg. 33290, 33436 (May 19, 1980). USEPA deconsolidated

the permit rules, and this became 40 C.F.R. 270.30(l)(9), which reflected the earlier shift in

section 264.75 to biennial reporting.

See

48 Fed. Reg. 14146, 14242 (Apr. 1, 1983)

(deconsolidating the permit rules);

see also

48 Fed. Reg. 3977, 3982 (Jan. 28, 1983) (shifting

from annual to biennial reporting).

---

36

The Board must reopen Part 724 in the upcoming update docket, R07-5. Certain aspects

of the federal rule on which Part 724 is based did not become effective until September 5, 2006,

and the Board could not complete the amendments until after that date.

See

UIC Update,

USEPA Regulations (January 1, 2005 through June 30, 2005), R06-5, RCRA Subtitle D Update,

USEPA Regulations (January 1, 2005 through June 30, 2005 and August 1, 2005), R06-6, and

RCRA Subtitle C Update, USEPA Regulations (January 1, 2005 through June 30, 2005 and

August 1, 2005), R06-7 (Jan. 5, 2006) at pp. 10-12. The Board will include a proposal to amend

35 Ill. Adm. Code 724.175 to provide for biennial reporting in the R07-5 proposal. That will

allow public comment on any such amendment before the Board would adopt it.

In the present docket, however, the Board amends Section 703.246(c) to remove the

references to the frequency of reporting. The Board changes “annual report” to “facility

activities report,” which is what the report is called in Section 724.175. The Board will also

remove the prepositional phrase “during the previous calendar year.” These amendments will

accommodate any future amendment of Section 724.175 to biennial reporting, or to continued

annual reporting if no such amendment is completed. The amendment to Section 703.246(c) in

this present docket will appear as follows:

c)

Annual Facility activities report: an annual a facility activities report must be

submitted covering facility activities during the previous calendar year (see as

described in 35 Ill. Adm. Code 724.175).

Suggested Simplification of the References to Federally “Reserved” Provisions.

USEPA has marked a number of provisions in the RCRA standardized permit rule as “reserved.”

This presents the Board with a structural challenge. The Board strives to maintain structural

consistency between the Illinois regulations and the federal rules on which they are based. As

discussed on page 15 of this opinion, the Board found it necessary to restructure the RCRA

standardized permit rule by combining several federal sections into single Sections in the Illinois

rules. USEPA had marked many of the federal sections “reserved.” The Board maintained a

linear correlation with the federal rules by inserting an explanatory subsection to maintain the

numbering scheme. The Agency commented, “It is recommended that the State equivalent be

simplified to read similar to the federal equivalent.” PC 1 at p. 15, ¶ 47.

As discussed above, and as explained in the April 6, 2006 proposal for public comment in

this matter, under Illinois administrative lawthe Board must number subsections sequentially and

cannot mark any as “reserved.” Some means is required to number subsections so that they

directly correlate with their federal counterparts. The means chosen by the Board to do this is

the only one that has presented itself to date. Using it has not only helped to maintain the

structural consistency of the two sets of rules, it has also offered a brief explanation of the

absence of a provision. This is especially important when there is a corresponding federal

provision that the Board could not incorporate into the Illinois rules.

26

26

See, e.g.,

35 Ill. Adm. Code 722.189(e) (a federal incorporation by reference); 724.101(f) (a

federal statement that the federal standards do not apply in authorized states); 724.414(a) (a

statement of applicability of the federal requirement to activities that occurred prior to adoption

of the Illinois regulations); 724.950(g) (a provision that applies exclusively to a facility outside

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37

The Agency has presented no alternative that the Board can use. If the Agency presents a

viable alternative, the Board would consider it. Without such an alternative, the Board will not

alter the text of the rule to remove the explanatory statements.

Suggested Alteration of the Certification of Closure Provision.

Section 727.210(h)

provides for certification of facility closure. It requires the owner or operator to submit

documentation to the Agency on request that supports the professional engineer’s certification of

closure. Section 727.210(h) states in pertinent part as follows:

Certification of closure. Within 60 days after the completion of final closure of

each unit under a RCRA standardized permit . . ., the facility owner or operator

must submit to the Agency . . . a certification that each hazardous waste

management unit or facility . . . The owner or operator must furnish

documentation supporting the independent registered professional engineer’s

certification to the Agency upon request until the Agency releases the owner or

operator from the financial assurance requirements for closure pursuant to Section

727.240(d)(9).

The Agency concedes that this proposed language is consistent with corresponding 40 C.F.R.

267.117, from which it is derived. The Agency states that the final sentence of that provision is

confusing, however, and it requests that the Board alter the language of that sentence. The

Agency asks the Board to alter the language to appear as follows:

The owner or operator must furnish documentation in support of the independent

registered professional engineer’s certification to the Agency upon request when

the certification of closure is submitted. If the certification of closure is

acceptable, the Agency will release the facility from the financial assurance

requirements under Section 727.240(d)(9).

PC 1 at p. 16, ¶ 50.

The Board does not believe that this alteration is necessary or desirable. While the

federally derived language is a bit lengthy, it is clear in its intent. The revision requested by the

Agency would subtly shift the original meaning of the provision. The Board will not make the

requested change.

Illinois); 725.101(c)(4) (a federal statement that the federal standards do not apply in authorized

states); 725.243(e)(4) (a provision relating to federally granted extensions of time to provide

proof of financial responsibility); 725.414(a) (a statement of applicability of the federal

requirement to activities that occurred prior to adoption of the Illinois regulations); 725.950(f) (a

provision that applies exclusively to a facility outside Illinois), and 728.130(c), 728.131(c),

728.134(d), 728.138(c), 728.139(e), and 728.140(g) (expired provisions still in the federal

regulations) (another expired provision) and note 6 to Table U to 35 Ill. Adm. Code 728 (another

expired privision).

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38

The last sentence of Section 727.210(h) contains a single idea: that the owner or operator

must submit supporting documentation to the Agency upon request, until the Agency has

accepted the certification of closure. The language put forward by the Agency contains two

ideas: (1) the owner or operator must submit supporting documentation together with the

certification; and (2) the Agency will release the owner or operator

27

if the certification is

acceptable. Thus, the Agency-suggested change would shift the requirements of Section

727.210(h) to require the submission of the supporting documentation in all instances, without

the need for an Agency request for the information. It would further provide for a release from

liability, which is already the subject of Section 727.240(d)(10). This is a shift away from the

federal intent of allowing the Agency to request supporting documentation up until when the

Agency accepts the certification.

Suggested Citation to Requirements for Ignitable and Reactive Wastes.

Proposed as

directly derived from 40 C.F.R. 267.174, Section 727.270(e) includes a citation to the

requirements applicable to ignitable and reactive waste in Section 727.110(h)(1) (which

corresponds with 40 C.F.R. 267.17(a)). The Agency observed that all of subsections (h)(1)

through (h)(3), i.e., all of subsection (h), set forth requirements for ignitable and reactive waste.

The Agency suggested that the Board should change the citation to read “Section 727.110(h).”

PC 1 at p. 16, ¶ 52.

The Board disagrees, and the reference is unchanged in the adopted rule. Section

727.110(h)(1) sets forth required general precautions to prevent accidental ignition or reaction of

the waste. Subsection (h)(2) sets forth further precautions based on certain waste-related

activities, including waste treatment or mixing. Subsection (h)(3) requires documentation of

compliance with the requirements of subsections (h)(1) and (h)(3). Section 727.270 sets forth

the requirements applicable to the use of containers. The cross-reference in Section 727.270(e)

is to “the

general

requirements for ignitable or reactive wastes in Section 727.110(h)(1),” with

emphasis added. Contrast this with the cross-reference to Section 727.110(h)(2) in the

requirements applicable to management of waste in tanks in Section 727.290(m)(1)(A)(i) (which

is derived from 40 C.F.R. 267.202(a)(1)(i)).

The Board could agree that the general RCRA standardized permit rule provisions

require compliance with the entirety of Section 727.110(h) for any facility that manages ignitable

or reactive waste in a way that is subject to its provisions. It is further possible the USEPA may

have intended citation to subsection (h) generally. The Board cannot agree, however, to change

the cross-reference included by USEPA. USEPA cited the general requirements for ignitable or

reactive waste, and those are set forth in Section 727.110(h)(1). The citation is not inconsistent

with its context in the rules, and there is no clear indication that USEPA erred in setting forth

this specific cross-reference.

27

There are two additional problems with this Agency-suggested language. First, the word

“will” suggests present intent. The Board never uses the word to impose a requirement on the

Agency or any regulated entity. See the discussion of usage on page 9 of this opinion. Second,

the language would release the facility, when it is actually the owner or operator that is liable for

the facility closure. Such changes in language would present problems.

---

39

Suggested Change in Agency Waiver of Secondary Containment Requirements.

Section 727.900(e) provides for Agency waiver of secondary containment requirements for a

containment building. As drafted by the Board, Section 727.900(e) provides that the Agency

must waive the requirements if it determines that the owner or operator has made certain

demonstrations:

[T]he Agency must, in writing, allow the use of alternatives to the requirements

for secondary containment for a permitted containment building where the

Agency has determined that the facility owner or operator has adequately

demonstrated both of the following:

1)

The only free liquids in the unit are limited amounts of dust suppression

liquids required to meet occupational health and safety requirements, and

2)

The containment of managed wastes and dust suppression liquids can be

assured without a secondary containment system.

This was based on 40 C.F.R. 267.1104, which provides as follows:

[T]he Regional Administrator may waive requirements for secondary containment

for a permitted containment building where:

(a) You demonstrate that the only free liquids in the unit are limited amounts of

dust suppression liquids required to meet occupational health and safety

requirements, and

(b) Containment of managed wastes and dust suppression liquids can be assured

without a secondary containment system.

The Agency asserted that Section 727.900(e) is equivalent to 40 C.F.R. 267.1104. The Agency

suggested that the Board use the federal permissive “may waive . . . where” instead of “must

waive . . . if it determines.” PC 1 at p. 17, ¶ 56.

Provisions where the federal rule allows some deviation from the generally applicable

standard are potentially problematic in Illinois. These provisions present problems based on

differences between the State and federal regulatory structures and administrative law and on the

degree of discretion allowed under the rule. The Board has confronted these provisions a

number of times, and each time the Board has discussed a consistent approach.

The administrative functions are divided between the Board and the Agency in Illinois.

Among other things, the Board establishes the environmental standards and hears petitions for

relief from those standards.

See

Sections 5(b) through (d) of the Act (415 ILCS 5/5(b) through

(d) (2004)). The Agency implements the standards and grants permits.

See

Sections 4(b)

through (e), (g), and (h) of the Act (415 ILCS 5/5(b) through (e), (g), and (h) (2004)). The Board

stated as follows in an earlier identical-in-substance update in which these issues arose:

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40

Under the federal scheme there is a single regulatory agency that establishes the

regulations, implements them, grants necessary permits, and grants relief from the

regulations. That is USEPA. These functions are divided in Illinois. Under the

Illinois regulatory scheme, the Board establishes the environmental standards for

the State by regulation, and the Agency implements them by,

inter alia

, granting

permits. If relief from the general regulations is warranted, it is the Board that

makes that determination and allows deviation from the generally applicable

statewide standards.

3

Where flexibility is needed in implementing regulations,

the Board establishes standards for Agency decision-making within the rules, so

that the Agency can make any requisite determinations and itself establish the

criteria needed to implement the federal rule within the Illinois regulatory

framework. (

See

Granite City Division of National Steel Co. v. PCB, 155 Ill. 2d

149, 613 N.E.2d 719 (1993) (considering whether Board regulations were an

unlawful delegation of rulemaking authority).) This vests the discretion in the

Agency to make the requisite preliminary determinations, it does not allow the

Agency the further discretion whether or not to implement the standard embodied

in the rule. The Board must make decisions of the types delegated to it by the

Act.

RCRA Subtitle C Update, USEPA Regulations (January 1, 2001 through June 30,

2001), R02-1, RCRA Subtitle C Update, USEPA Regulations (July 1, 2001

through December 31, 2001, January 22, 2002, March 13, 2002, and April 9,

2002), R02-12, and UIC Update, USEPA Regulations (July 1, 2001 through

December 31, 2001), R02-17 (Apr. 18, 2002) at p. 16 (termination of certain

exemptions under Subpart N of 35 Ill. Adm. Code 726, as derived from subpart N

of 40 C.F.R. 266).

28

Thus, it is necessary that the Agency determination be in the nature of a permit determination.

To this end, the regulation must provide necessary standards for an Agency determination. If the

ultimate decision is to grant relief from a generally applicable rule, the Board must reserve the

determination to itself; if the ultimate determination is in the nature of a determination to employ

an alternative provision of the rules (i.e., that the requisite situation exists where the provision

applies), the Agency may make the threshold determination to apply the alternative rule.

On another occasion, the Board discussed USEPA comments on the change in language

from “may” to “must” in allowing the extension of a deadline for compliance. The Board

observed that “must” limited the Agency discretion once the Agency has made the threshold

28

Footnote 3 in that April 18, 2002 opinion and order stated as follows:

The Board may grant a variance, under Sections 35 through 38 of the Act (415

ILCS 5/35-38 (2000)); establish an adjusted standard, under Section 28.2 of the

Act (415 ILCS 5/28.1 (2000)); or adopt a site-specific regulation, under Sections

22.4, 27, and 28 of the Act (415 ILCS 5/22.4, 27, and 28 (2000)).

Id.

---

41

determinations necessary to apply an exception, but did not limit Agency discretion in making its

determination:

In response to the USEPA expression of concern, we note that the Board is

limited in its ability to delegate decisionmaking authority to the Agency. Under

the Act, the Board establishes the State environmental standards, and the Agency

implements them. See 415 ILCS 5/4, 5 (2000).

3

Thus, the Board must establish criteria for Agency determinations made in the

course of establishing the standards. As stated by the Board in adopting the one-

year deadline extension provision on which USEPA commented:

While the Agency is given discretion to determine whether or not

the most efficient compliance option is indeed connection to a

sanitary sewer or the installation of new technology, the Board

cannot vest in the Agency the additional discretion to determine

whether or not to extend the deadline for compliance. UIC

Update, USEPA Amendments (July 1, 1999, through December

31, 1999) and

In re

UIC Update, USEPA Amendments (January 1,

2000, through June 30, 2000) (December 7, 2000), R00-11/R01-1

(consolidated), slip op. at page 10.

A federal provision that allows a discretionary determination by the State usually

allows a permissible relaxation of the generally-applicable standard in the federal

rule. To incorporate the federally-allowable flexibility into the Illinois

regulations, the Board generally examines the federal rule to find the

circumstances under which USEPA allows the relaxation of the generally-

applicable rule. The Board then makes the determination that the Illinois

regulations will allow flexibility from the general rule, and it establishes the

federally-permissible circumstances as the preconditions to an Agency

determination to allow the flexibility. The Board drafts the Illinois rule to allow

the permissible relaxation of the generally-applicable standard upon a certain

Agency determination. Consequently, the resulting Agency determination to

allow the flexibility is in the nature of a permit determination or establishing

criteria by fixed procedures, rather than in the nature of Agency rule adoption

prohibited by the Act. The Board then further adds a note explaining that an

Agency determination is subject to review under Section 40 of the Act as an

Agency permit determination.

In translating the federal rules into the Illinois system, the Board properly

changed “UIC Program Director may extend” to “the Agency must extend.”

USEPA allows the State to grant the extension if the most efficient compliance

alternative is connection to a sanitary sewer or the installation of a new treatment

technology. The Board has made the decision whether the State of Illinois will

allow the extension, leaving the Agency the discretion to determine whether or

not the most efficient compliance alternative is connection to a sanitary sewer or

---

42

the installation of a new treatment technology. The Board has further implicitly

vested the Agency the discretion to determine the term of the extension of “up to

one year.”

Thus, where USEPA has provided that this State “may extend” the deadline for

compliance, the Board has determined that the State will extend the deadline once

the Agency has made the necessary preliminary findings. The Agency may

further determine the term of the extension based on the need for the extension.

This is consistent with and no less stringent than the federal requirements.

UIC Corrections, USEPA Amendments (July 1, 1999, through June 30, 2000),

R01-30 (Aug. 9, 2001) at pp. 6-7.

29

The Board routinely replaces “may” with “must” in identical-in-substance rules. (See the

discussion at page 9 of this opinion.) USEPA uses “may” when it intends a discretionary act.

The present provision is an example of the usual context for such an act, where the government

agency may allow some prescribed alternative to the general requirements after the regulated

entity has made some demonstration. Any permissible Agency action that allows some activity

is necessarily in the nature of a permit determination. Once the Agency has exercised its

discretion and determined that the prerequisite conditions exist, the Agency must allow the

prescribed alternative. Once the determination has been made that the required facts exist, the

Agency cannot arbitrarily disallow the desired activity.

30

Contrary to the Agency assertion, the State and federal versions of this provision are

equivalent. The grant of a “waiver” is not mandatory in Illinois until the Agency has made the

determination that the owner or operator has made the requisite demonstration. The Board does

not believe that USEPA would require that the Agency have the ability to deny a waiver once

29

Footnote 3 in that August 9, 2001 opinion and order stated as follows:

The Board has previously stated when adopting rules by the identical-in-

substance procedure as follows:

Under Illinois law, as held by the Illinois Supreme Court in

Granite City Division of National Steel Co. v. PCB (April 15,

1993), 155 Ill. 2d 149, 172-74, 613 N.E.2d 719, 729-30, although

the Agency may establish criteria by fixed procedures that apply to

particular facilities based on site-specific factors, the authority to

adopt regulatory standards of general applicability is reserved to

the Board.

Safe Drinking Water Act Update, USEPA

Amendments (January 1 through June, 30, 1995) (October 17,

1996), R95-17, at page 4.

Id.

30

The Board also requires that the Agency make its determination in writing. This allows

Board review pursuant to Section 40 of the Act (415 ILCS 5/40 (2004)).

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43

that determination has been made. The Board will not make the revisions to Section 727.900(e)

requested by the Agency.

The Agency observed that the same issue exists in Section 724.1101(e) with regard to the

use of “may” or “must.” Section 264.1101(e) is an existing provision derived from 40 C.F.R.

264.1101(e). Section 264.1101(e) is not involved in the present rulemaking. The Agency

requested that the Board “also investigate the equivalency of the wording at Section

724.1101(e).” (PC 1 at p. 17, ¶ 56.)

The text of 40 C.F.R. 264.1101(e) is very similar to new 40 C.F.R. 267.900(e). Both

provisions allow a waiver of secondary containment requirements for dust suppression liquids

upon a finding that limited circumstances exist at the facility. Federal 40 C.F.R. 264.1101(e)

reads as follows:

Notwithstanding any other provision of this subpart the Regional Administrator

may waive requirements for secondary containment for a permitted containment

building where the owner operator demonstrates that the only free liquids in the

unit are limited amounts of dust suppression liquids required to meet occupational

health and safety requirements, and where containment of managed wastes and

liquids can be assured without a secondary containment system.

40 C.F.R. 264.1101(e), as adopted by USEPA at 57 FR 37194, 37267 (Aug. 18,

1992).

The Board adopted corresponding 35 Ill. Adm. Code 724.1101(e) in RCRA Update, USEPA

Regulations (July 1, 1992 through December 31, 2002), R93-4 (Sept. 23, 1993). The Board

avoided using “the Agency may” by using even stronger language than that used by the Board in

new Section 727.900(e). Section 724.1101(e) reads as follows:

Notwithstanding any other provision of this Subpart DD the Agency must not

require secondary containment for a permitted containment building where the

owner operator demonstrates that the only free liquids in the unit are limited

amounts of dust suppression liquids required to meet occupational health and

safety requirements, and where containment of managed wastes and liquids can

be assured without a secondary containment system.

When adopting Section 724.1101(e), the Board responded to a comment from USEPA on

the shift from “the Agency may” to “the Agency must.” USEPA believed that this shift to

mandatory language made the Illinois rule less stringent than its federal counterpart. USEPA

commented in significant part as follows:

The Board should recognize that the Federal regulation does not require

the

Regional Administrator to waive the requirement for secondary requirement, but

leaves it to his discretion in case other factors weigh against such a waiver. The

proposed Illinois equivalent leaves the State agency with no similar discretion,

and may cause the Agency to be less stringent.

---

44

RCRA Update, USEPA Regulations (July 1, 1992 through December 31, 2002),

R93-4 (Sept. 23, 1993) a p. 32, quoting PC 8 from USEPA Region 5 (emphasis in

original).

The Board was not persuaded by USEPA’s argument. The Board responded as follows:

USEPA’s approach would allow the Agency unfettered discretion to waive or not

waive the requirement based on “other factors.” The Board believes that “other

factors” is so vague as to not provide any standards under which the Agency may

base a waiver. Moreover, it does not provide a standard under which a petitioner

may appeal an Agency decision to the Board.

Id.

The Board did not alter the suggested federal language that relied on the use of “may” and

substituted mandatory language using “must” in its place.

In the present instance of Section 727.900(e) (and in the Agency-cited instance of Section

724.1101(e)), the Agency is charged with making the determination whether the facility owner

or operator has demonstrated that (1) “the only free liquids in the unit are limited amounts of

dust suppression liquids required to meet occupational health and safety requirements,” and (2)

“the containment of managed wastes and liquids can be assured without a secondary containment

system.” As the Board observed in the preceding discussion on page 33 of this opinion, the

Agency is responsible for making another, underlying determination: will waiving the

requirement for secondary containment result in a violation of the Act or Board regulations?

The Agency cannot determine that the owner or operator has made the requisite demonstration

unless it is satisfied that no such violation would occur. The only thing that the shift from “may”

to “must” essentially changes is that it assures that the Agency will not be arbitrary or capricious

in its determination.

The Board will not now alter the language of Section 724.1101(e). That provision was

not part of the proposal for public comment in this matter. The Board will not shift from the

mandatory language “the Agency shall,” as suggested by the Agency.

The Board will, however, include an amendment to Section 724.1101(e) in the upcoming

RCRA update docket R07-5 to make the substitution’s language more consistent with its

counterpart provision, Section 727.900(e), in the RCRA standardized permit rule. (See the

discussion of the possible future revision of Section 724.175 at page 36 of this opinion.) Such a

conforming amendment to Section 724.1101(e) could take the following form:

Notwithstanding any other provision of this Subpart DD the Agency must, in

writing, not require allow the use of alternatives to the requirements for secondary

containment for a permitted containment building where the Agency has

determined that the facility owner operator demonstrates has adequately

demonstrated that the only free liquids in the unit are limited amounts of dust

suppression liquids required to meet occupational health and safety requirements,

---

45

and where containment of managed wastes and liquids can be assured without a

secondary containment system.

Suggested Change to Requirements for a Containment Building Acting As Secondary

Containment for a Tank in the Building.

The Agency has requested that the Board correct

another of the federal rules. At issue is an error or ambiguity in the provisions that set forth the

requirements for a containment building that acts as secondary containment for a tank within the

building. The error or ambiguity is exactly what secondary containment requirements USEPA

intended to apply to the building.

The federal rule at 40 C.F.R. 267.1107 (corresponding with 35 Ill. Adm. Code

727.900(h)) provides that a containment building can serve as secondary containment for a tank

in the building if it meets certain requirements. First, the building must meet the requirements

for an external liner system as set forth in 40 C.F.R. 267.196(b) (corresponding with 35 Ill. Adm.

Code 727.290(g)(2)).

31

These external liner system requirements include provisions for

containment capacity, prevention of run-on and infiltration of rainfall, freedom from cracks or

gaps, and design and installation to completely surround the tank and cover all surrounding earth

likely to be contacted by waste in the event of a release. Second, the building must meet certain

specified requirements for secondary containment in 40 C.F.R. 267.195(a), (b)(1), and (b)(2)

(corresponding with 35 Ill. Adm. Code 727.290(f)(1), (f)(2)(A), and (f)(2)(B)). These specified

segments of the secondary containment requirements include requirements that the building be

designed, installed, and operated to prevent migration of wastes or accumulated liquid to soil or

water; that it be capable of detecting and collecting releases and liquids until they are removed;

that it must be constructed of or lined with materials that are compatible with the waste and

which will not fail to contain the waste during operations; and that it must be placed on a

foundation or base that will support the system and resist failure.

The Agency asserted in PC 1 that USEPA erred in its citation to 40 C.F.R. 267.195(a),

(b)(1), and (b)(2) for applicable requirements. The Agency points out that 40 C.F.R. 267.195(b)

states that compliance with section 267.195(a) would require compliance with all of section

267.195(b), including sections (b)(1) through (b)(4) (corresponding with 35 Ill. Adm. Code

727.290(f)(2)(A) through (f)(2)(D)). The Agency suggests that the Board should correct the

supposed federal error and revise 35 Ill. Adm. Code 727.900(h)(2) (corresponding with 40

C.F.R. 267.1107(b)) to cite required compliance with 35 Ill. Adm. Code 727.290(f)(1) and (f)(2)

(corresponding with 40 C.F.R. 267.195(a) and (b)). PC 1 at p. 18, ¶ 59. In essence, the Agency

requests that the Board revise the federally derived language to include an express requirement

to comply with 35 Ill. Adm. Code 727.290(f)(2)(C) and (f)(2)(D) (corresponding with 40 C.F.R.

267.195(b)(3) and (b)(4)). Those two subsections require that secondary containment include a

31

At the Request of the Agency (PC 1 at p. 17, ¶ 58), the Board corrected the citation to the

external liner requirements from the State counterpart to 40 C.F.R. 267.196(a) to refer to the

counterpart to subsection (b) of that section. No further discussion of that correction is

necessary other than its listing in the table of corrections to and deviations from the federal rules

that begins on page ### of this opinion.

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46

leak-detection system that will detect a leak within 24 hours and that is be designed or operated

to drain and remove accumulated liquids within 24 hours.

There are two equally reasonable interpretations of this provision. The first possibility,

the one to which the Agency ascribes, is that USEPA intended compliance with all of 40 C.F.R.

267.195 (corresponding with 35 Ill. Adm. Code 727.290(f)), including the design, installation,

and operation requirements relating to leak detection, collection, and removal and facility

foundation requirements of paragraphs (b)(3) and (b)(4) (corresponding with 35 Ill. Adm. Code

727.290(f)(2)(C) and (f)(2)(D)). Supporting this interpretation is the fact that 40 C.F.R.

267.195(b) (corresponding with 35 Ill. Adm. Code 727.290(f)(2)) expressly states that

compliance with subsection (a) requires compliance with all of paragraphs (b)(1) through (b)(4)

(corresponding with 35 Ill. Adm. Code 727.290(f)(2)(C) and (D)).

The second possibility is that USEPA did not intend the design, installation, and

operation requirements relating to leak detection, collection, and removal and facility foundation

requirements of paragraphs (b)(3) and (b)(4) to apply to a containment building acting as

secondary containment for a tank. USEPA expressly required compliance only with paragraphs

(b)(1) and (b)(2). The requirement in 40 C.F.R. 267.195(b) (corresponding with 35 Ill. Adm.

Code 727.290(f)(2)) that compliance with subsection (a) requires compliance with all of

paragraphs (b)(1) through (b)(4) is a general requirement. The requirement in 40 C.F.R.

267.1107(b) (corresponding with 35 Ill. Adm. Code 727.290(h)(2)) that requires compliance

with 40 C.F.R. 267.195(a), (b)(1), and (b)(2) is a specific requirement. It is possible that USEPA

intended to exclude the general when it cited the specific. One maxim of statutory interpretation

that might apply here is that the inclusion of a specific provision excludes a more general one.

See

Browning-Ferris Industries, Inc. of Iowa v. PCB, 127 Ill. App. 3d 509, 468 N.E. 2d 1016 (3d

Dist. 1984).

It is unclear exactly what USEPA intended in this provision. While it would seem

reasonable that USEPA did not intend compliance with the leak detection, collection, and

removal and facility foundation requirements of 40 C.F.R. 267.195(b)(3) and (b)(4), the plain

words of subsection (b) state that compliance with subsection (a) would require compliance with

those two paragraphs. The preamble discussion in the

Federal Register

does not fully clarify

USEPA’s intent. The discussion in that notice of secondary containment specifically stated that

all units subject to the RCRA standardized permit rule should have leak detection, collection,

and removal systems:

The standardized permit rule is intended for units (tanks, containers, containment

buildings) that are easily designed and operated, and with minimal contingencies.

More complex situations involving tank systems where leaks are difficult to

detect, are better served under an individual permit. Furthermore, such

demonstrations only serve to lengthen the overall permitting process, detracting

from the intent of the rule to streamline the process as much as possible.

Therefore, in the final rule, the provisions of § 267.195 will require that a

facility’s secondary containment system be able to detect and/or remove a leak or

spill within 24 hours. The rule will not provide a self-certification provision for

---

47

systems that cannot detect and/or remove leaks or spills within 24 hours. These

tank systems will need an individual permit.

70 Fed. Reg. 53420, 53442 (Sept. 8, 2005).

This preamble discussion would tend to support the Agency contention that USEPA intended the

leak detection, collection, and removal and facility foundation requirements to apply to all units,

including a containment building used as secondary containment for a tank. However, nowhere

does the

Federal Register

notice address why USEPA required compliance only with 40 C.F.R.

267.195(a), (b)(1), and (b)(2), seeming to exclude those requirements. The discussion of the

containment building requirements stated only that USEPA had received no comments on that

aspect of the rule, so the rule was adopted without change from the proposed rule. 70 Fed. Reg.

at 53442.

The rule as proposed by USEPA in 2001 included same specific citation to the

requirements of 40 C.F.R. 267.195(a), (b)(1), and (b)(2) that USEPA adopted in 2005.

See

66

Fed. Reg. 52192, 52264 (Oct. 12, 2001) (the proposed text of 40 C.F.R. 267.1107(b)). The

notice of proposed rule discussion of secondary containment for a containment building did not

disclose the source of the citation, but it did disclose that 40 C.F.R. 264.1101 is the origin of

subpart DD of 40 C.F.R. 267. The 2001 discussion was as follows:

If you plan to use your containment building to treat or store hazardous wastes

that contain free liquids, then the primary barrier would be required to be able to

prevent the migration of hazardous constituents into the barrier. You could

accomplish this, for example, by putting a geomembrane on top of a concrete

surface. You would also be required to install a secondary containment system.

The function of the secondary containment would be to allow the use of a leak

detection system capable of detecting leaks in the primary barrier, and to collect

the liquids that could penetrate the primary barrier. Proposed § 267.1102

stipulates the same design requirements for the secondary containment system as

does existing § 264.1101. This proposed section would also require a

certification by a qualified registered professional engineer that the unit meets all

design and operating requirements.

66 Fed. Reg. 52192, 52226 (Oct. 12, 2001).

The text of 40 C.F.R. 264.1101 includes parenthetical language that is very close to that

of section 267.1107:

A containment building can serve as an external liner system for a tank, provided

it meets the requirements of § 264.193(d)(1). In addition, the containment

building must meet the requirements of § 264.193(b) and §§ 264.193(c)(1) and

(2) to be considered an acceptable secondary containment system for a tank.

40 C.F.R. 264.1101(b)(3)(iii) (2005) (corresponding with 40 C.F.R.

724.1101(b)(3)(C)).

The text of cited 40 C.F.R. 264.193(b) and (c) is nearly identical to that of 40 C.F.R. 267.195(a)

and (b):

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48

(b) Secondary containment systems must be:

(1) Designed, installed, and operated to prevent any migration of wastes or

accumulated liquid out of the system to the soil, ground water, or surface water at

any time during the use of the tank system; and

(2) Capable of detecting and collecting releases and accumulated liquids until the

collected material is removed.

(c) To meet the requirements of paragraph (b) of this section, secondary

containment systems must be at a minimum:

(1) Constructed of or lined with materials that are compatible with the wastes(s)

to be placed in the tank system and must have sufficient strength and thickness to

prevent failure owing to pressure gradients (including static head and external

hydrological forces), physical contact with the waste to which it is exposed,

climatic conditions, and the stress of daily operation (including stresses from

nearby vehicular traffic).

(2) Placed on a foundation or base capable of providing support to the secondary

containment system, resistance to pressure gradients above and below the system,

and capable of preventing failure due to settlement, compression, or uplift;

(3) Provided with a leak-detection system that is designed and operated so that it

will detect the failure of either the primary or secondary containment structure or

the presence of any release of hazardous waste or accumulated liquid in the

secondary containment system within 24 hours, or at the earliest practicable time

if the owner or operator can demonstrate to the Regional Administrator that

existing detection technologies or site conditions will not allow detection of a

release within 24 hours; and

(4) Sloped or otherwise designed or operated to drain and remove liquids

resulting from leaks, spills, or precipitation. Spilled or leaked waste and

accumulated precipitation must be removed from the secondary containment

system within 24 hours, or in as timely a manner as is possible to prevent harm to

human health and the environment, if the owner or operator can demonstrate to

the Regional Administrator that removal of the released waste or accumulated

precipitation cannot be accomplished within 24 hours.

40 C.F.R. 264.193(b) and (c) (2005) (corresponding with 40 C.F.R. 724.293(b)

and (c)).

Thus, it is safe to assume that USEPA intended the same thing in its citation to 40 C.F.R.

267.195(a), (b)(1), and (b)(2) as it did in its citation to 40 C.F.R. 264.193(b), (c)(1), and (c)(2).

The preamble discussion accompanying USEPA adoption of 40 C.F.R.

264.1101(b)(3)(iii) specifically discussed the requirements that should apply to a containment

building acting as secondary containment for a tank within the building. That discussion

mentions the specific requirements with which such a containment building must comply, but it

does not announce the rationale for those requirements that would either expressly include or

exclude compliance with the leak detection, collection, and removal and facility foundation

requirements of 40 C.F.R. 264.193(b)(3) and (b)(4). USEPA stated as follows:

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49

EPA believes containment buildings can serve as secondary containment systems

for tanks placed within the building under certain conditions; A containment

building can serve as an external liner system for a tank, provided it meets the

requirements of § 264.193(d)(1), i.e. that it is designed and operated to contain

100 percent of the capacity of the largest tank within its boundary, designed and

operated to prevent run-on or infiltration of precipitation into the secondary

containment system, free of cracks or gaps, and designed and installed to

surround the tank completely and to cover all surrounding areas likely to come

into contact with the waste. In addition, the containment building must meet the

requirements of § 264.193(b) and § 264.193(c)(1) and (2) to be considered an

acceptable secondary containment system for a tank.

57 Fed. Reg. 37194, 37215 (Aug. 18, 1992).

USEPA very clearly and deliberately cited only 40 C.F.R. 264.193(b), (c)(1), and (c)(2)

when adopting 40 C.F.R. 264.1101(b)(3)(iii). From this, it follows that USEPA very clearly and

deliberately cited only 40 C.F.R. 267.195(a), (b)(1), and (b)(2) when adopting 40 C.F.R.

267.1107. As with the adoption of section 267.1107, however, USEPA also discussed the need

for a containment building to comply with secondary containment leak detection, collection, and

removal requirements when USEPA adopted section 264.1101:

Portions of containment buildings used to manage hazardous wastes containing

free liquids must, in addition, be provided with secondary containment systems

including (1) a secondary barrier and (2) a leak detection system. The secondary

barrier must be designed and constructed of materials to prevent the migration or

hazardous constituents into this barrier. The leak detection system, which lies

below the primary barrier and above the secondary barrier, must be capable of

detecting, collecting, and removing leaks of hazardous constituents through the

primary barrier at the earliest practicable time.

57 Fed. Reg. 37194, 37214 (Aug. 18, 1992).

Thus, tracing the specific citation to secondary containment requirements in section 267.1107 to

its ultimate source in the adoption of section 264.1101 does not remove the ambiguity or

completely clarify USEPA’s intent.

The Board cannot correct 35 Ill. Adm. Code 727.900(h)(2) as requested by the Agency to

correct possible USEPA error in 40 C.F.R. 267.1107. Exactly why USEPA cited two specific

requirements and ignored two others that are cited in a general way in the same rule is unclear.

On the one hand, it is possible that USEPA intended the leak detection, collection, and removal

and facility foundation requirements of 40 C.F.R. 267.195(b)(3) and (b)(4) to apply to all

secondary containment systems, as 40 C.F.R. 267.195(b) would imply and as put forward by the

Agency in PC 1. On the other hand, 40 C.F.R. 267.1107(b) specifically requires compliance

only with 40 C.F.R. 267.195(a), (b)(1), and (b)(2).

32

Since the federal intent is not manifest

32

It is worthy of note that USEPA did not cite 40 C.F.R. 267.195(b), which is the provision that

the Agency cites as requiring compliance with subsections (b)(3) and (b)(4) to achieve

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50

anywhere in the text or history of section 267.1107, the Board cannot revise this provision to

enhance its clarity. The rule will have to be interpreted by the terms chosen by USEPA to draft

it.

Tabulation of the Correlation of State and Federal Regulations.

The Agency requested

an action in PC 1 that the Board agrees is desirable, but that the Board cannot complete in this

proceeding. The Agency commented as follows:

[T]racking down the regulations in 35 Ill. Adm. Code that correspond to the

various sections of 40 CFR Parts 124, 144, and 270 can be very confusing and

time consuming. Therefore, it is recommended that the Board develop and

maintain a table that relates the federal requirements to the equivalent state

requirements

-

section by section

-

so that a direct comparison of the

requirements can be made quickly and easily. A table such as this should also be

helpful in reviewing future adoptions of USEPA regulations.

PC 1 at p. 18, ¶ 60.

The Board agrees. Traditionally, where there is not a linear correlation between the two

systems of rules,

33

the Board has added Board notes that correlate the State rules with their

federal counterparts. The Board note indicates the federal source of the particular State

provision. Confronted with the potential for confusion in the present rule, since there was a

revision to the structure, the Board included tables that correlate the respective RCRA

standardized permit provisions in the federal and State regulations in Appendix B to Part 727.

The Board believes that similar tables added to the permit rules of 40 C.F.R. 702 through 705

would enhance the clarity of the rules.

The Board has not included correlation tables in the adopted rule, since adding them at

this point would delay adoption of the rule text. Consistent with resource constraints and

priorities, the Board will devise tables that set forth the correlation between the federal and State

RCRA and UIC permit rules and include them in a proposal for public comment in an

appropriate future identical-in-substance update docket.

Amendments to the Headworks Exemption from the Definition of Hazardous Waste--

Section 721.103

The USEPA action of October 4, 2005 (70 Fed. Reg. 59402) expanded an existing

exemption from the definition of hazardous waste. The exemption is called the “headworks

exemption,” and it relates to mixtures of listed hazardous waste (from subpart D of 40 C.F.R.

261, which corresponds with Subpart D of 35 Ill. Adm. Code 721) and wastewater that go to a

regulated wastewater treatment system. Certain concentration and other limits apply to the

mixtures of waste in the wastewater. USEPA changed a few aspects of the headworks

compliance with subsection (a).

33

See

footnote 5 on page 15 of this opinion.

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51

exemption rule, including the mixtures that are subject to the rule, the locations acceptable for

sampling and measurement, and the scope of the

de minimis

exemption.

USEPA added benzene and 2-ethoxyethanol to the list of solvents whose mixtures with

wastewater are exempted from the definition of hazardous waste. Certain limitations apply to

the exemption of benzene-containing wastewater.

34

Also exempted are scrubber waters from the

combustion of any of the exempted solvents (including combustion of the solvents previously

exempted).

35

USEPA further amended the headworks exemption to allow measurement of

solvent levels at the headworks of the wastewater treatment plant to determine the applicability

of the exemption, provided that the wastewater treatment is subject to federal Clean Air Act

standards and the generator submits an analysis plan for approval. Finally, USEPA broadened

the applicability of the

de minimis

exemption to listed wastes beyond discarded commercial

products and to non-manufacturing facilities.

The Board incorporated the October 4, 2005 federal amendments without substantive

deviation from the corresponding federal text. The deviations from the text of the federal

amendments are restricted to those structural and stylistic changes needed to make the text

comport with the

Illinois Register

format and the Board’s preferred style. Table A, which begins

on page 75 of this opinion, itemizes the various revisions made in the federal text in adapting it

into the State regulations.

The Board does not review the substance and merits of the underlying federal action in

an identical-in-substance proceeding, except to the extent that it may be necessary to do so in

order to incorporate the federal provisions into the Illinois regulations. Persons interested in the

details of the federal amendments should consult the October 4, 2005

Federal Register

notice.

No aspects of the present amendments warrant particular consideration here, since the Board has

not departed in any significant way from the style and structure of the federal regulations.

The Board requested public comment on the incorporation of the October 4, 2005 federal

amendments to the headworks exemptions. The Board received no comments on this aspect of

the proposal.

34

The wastewater treatment system must be an aerated biological wastewater treatment system,

and it must use only lined surface impoundments or tanks prior to secondary clarification.

35

The exemption now includes wastewater mixtures of the solvents benzene, carbon disulfide,

carbon tetrachloride, chlorobenzene, cresols, cresylic acid, o-dichlorobenzene, 2-ethoxyethanol,

isobutanol, methyl ethyl ketone, methylene chloride, nitrobenzene, pyridine, tetrachloroethylene,

1,1,1-toluene, trichloroethane, trichloroethylene, and spent chlorofluorocarbon solvents and

scrubber waters derived from their combustion.

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52

Finalized Hazardous Waste Combustor Rule--Parts 703, 720, 724, 725, and 726

36

The USEPA action of October 12, 2005 (70 Fed. Reg. 59402), amended the Hazardous

Waste Combustor Rule. The Hazardous Waste Combustor (HWC) Rule applies to various

entities that burn hazardous waste as a fuel: incinerators; cement kilns; lightweight aggregate

kilns; industrial, commercial, and institutional boilers and process heaters; and hydrochloric acid

production furnaces. USEPA has identified these entities as major sources of hazardous air

pollutants (HAPs),

37

which makes them subject to the maximum achievable control technology

(MACT) under national emission standards for hazardous air pollutants (NESHAPs) pursuant to

section 112(d) of the federal Clean Air Act (42 U.S.C. 7412(d) (2003)). The amendments

included Phase I replacement standards and Phase II standards. The substantive HWC Rule is a

NESHAP codified by USEPA as subpart EEE of 40 C.F.R. 63. The hazardous waste regulations

bridge to that NESHAP.

USEPA originally designated HWCs as major sources of HAP on July 16, 1992 (at 57

Fed. Reg. 31576). USEPA designates incinerators, cement kilns, and lightweight aggregate kilns

as “Phase I” sources. “Phase II” sources are boilers and hydrochloric acid production furnaces.

USEPA adopted the Phase I HWC Rule to control emissions from Phase I sources on September

30, 1999 (at 64 Fed. Reg. 52828).

38

USEPA subsequently stayed segments of the HWC Rule

and adopted interim standards on February 13, 2002 (at 67 Fed. Reg. 6792), as a result of

litigation in Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001).

39

The

USEPA amendments address the Cement Kiln Recycling Coalition decision as to the Phase I

sources to which it applied and establish standards for Phase II sources.

36

The specific Sections involved are 703.110, 703.189, 703.205, 703.208, 703.210, 703.211,

703.221, 703.232, 703.241, 703.280, 703.320, 720.111, 724.440, 725.440, and 726.200.

37

USEPA stated that HAPs emitted by HWCs include arsenic, beryllium, cadmium, chromium,

dioxins and furans, hydrogen chloride and chlorine gas, lead, manganese, and mercury.

38

The Board incorporated the HWC Rule and subsequent federal amendments into the Illinois

hazardous waste regulations in a series of dockets:

RCRA Subtitle C Update, USEPA

Amendments (July 1, 1999 through December 31, 1999), R00-13 (May 18, 2000); UIC Update,

USEPA Amendments (July 1, 2000 through December 31, 2000), R01-21 and RCRA Subtitle C

Update, USEPA Amendments (July 1, 2000 through December 31, 2000), R01-23 (May 17,

2001) (consolidated);

RCRA Subtitle C Update, USEPA Amendments (January 1, 2001 through

June 30, 2001), R02-1 and RCRA Subtitle C UPDATE, USEPA Amendments (July 1, 2001

through December 31, 2001, January 22, 2002, March 13, 2002, and April 9, 2002), R02-12

(Apr. 18, 2002) (consolidated); and RCRA Subtitle C Update, USEPA Amendments (July 1,

2002 through December 31, 2002), R03-18 (June 5, 2003).

39

To which the Board responded with corresponding amendments in RCRA Subtitle C Update,

USEPA Amendments (January 1, 2002 through June 30, 2002), R03-7 (Jan. 9, 2003).

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53

The Board incorporated the October 12, 2005 federal HWC Rule amendments without

substantive deviation from the corresponding federal text. The deviations from the text of the

federal amendments are restricted to those structural and stylistic changes needed to make the

text comport with the

Illinois Register

format and the Board’s preferred style. Table A, which

begins on page 75 of this opinion, itemizes the various revisions made in the federal text in

adapting it into the State regulations.

The Board does not review the substance and merits of the underlying federal action in

an identical-in-substance proceeding, except to the extent that it may be necessary to do so in

order to incorporate the federal provisions into the Illinois regulations. Persons interested in the

details of the federal amendments should consult the October 12, 2005

Federal Register

notice.

No aspects of the present amendments warrant particular consideration here, since the Board has

not departed in any significant way from the style and structure of the federal regulations. The

only aspects of the present amendments that warrant such consideration here relate to

incorporations by reference. First, USEPA changed its incorporations-by-reference provision at

40 C.F.R. 270.6 in a way that the Board will not follow. Second, the versions of subpart EEE of

40 C.F.R. 63 that the federal amendments will require the Board to incorporate by reference in

35 Ill. Adm. Code 720.111.

Section 702.104 corresponds with 40 C.F.R. 270.6, which is the centralized location of

incorporations by reference for the purposes of the RCRA permit rules of federal part 270. In

the past, 40 C.F.R. 270.6 cross-referenced 40 C.F.R. 260.11 for the incorporations. In the federal

amendments of October 12, 2005, USEPA amended section 270.6 to add replace the cross-

reference with an incorporation of “

APTI Course 415: Control of Gaseous Emissions

.” The

version of this document incorporated is identical to that listed in 40 C.F.R. 260.11. The Board

has opted to retain at Section 702.104 the existing cross-reference to 35 Ill. Adm. Code 720.111

for incorporations. Thus, 35 Ill. Adm. Code 720.111 will remain the centralized incorporations

provision for all of the hazardous waste rule, including the permitting provisions of 35 Ill. Adm.

Code 702 through 705.

As to the version of subpart EEE of 40 C.F.R. 60 incorporated by reference, the Board

does not generally insert the version date in citations to the

Code of Federal Regulations

in the

substantive segments of the regulations. Rather, the Board inserts the version information in the

centralized citation for incorporation by reference in 35 Ill. Adm. Code 720.111(b). This

practice allows the Board to update the incorporation by reference to a later version or to include

later amendments published in the

Federal Register

without amending the substantive rule for

which the document is incorporated. The October 12, 2006 federal amendments refer in 40

C.F.R. 270.42(j)(1) to the version of 40 C.F.R. 63.1210 that was in effect on October 12, 2000,

which was the July 1, 2000 edition of that provision. This has required the Board to include the

version date “(2000)” in the citation to 40 C.F.R. 63.1210 in corresponding 35 Ill. Adm. Code

703.280(j)(1) and add an incorporation of the 2000 version of 40 C.F.R. 63.1210 to 35 Ill. Adm.

Code 720.111(b).

The Board requested public comment on the incorporation of the October 12, 2005

federal amendments to the Hazardous Waste Combustor Rule. The Board received no comments

on this aspect of the proposal.

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54

Cross-Media Electronic Reporting Rule--Parts 702 through 705, 720 through 728, 730, 733,

and 739

40

The USEPA action of October 13, 2005 (70 Fed. Reg. 59848) established the Cross-

Media Electronic Reporting Rule (CROMERR).

41

CROMERR sets standards for the submission

of electronic documents in lieu of paper documents in various federal program areas.

42

CROMERR does not require the submission of documents in an electronic format. CROMERR

does, however, impose requirements on documents that are submitted electronically and on the

electronic document receiving systems used to receive them.

Generally, CROMERR requires that an electronic document bear a valid electronic

signature that has “the same meaning and intention as would a handwritten signature” on a paper

document for which the electronic document substitutes. Quoting 40 C.F.R. 3.3 (definition of

“electronic signature”). CROMERR requires this for electronic submittals made directly to

USEPA (

i.e.

, to USEPA’s Central Data Exchange (CDX) or other USEPA-designated system).

CROMERR also requires this of electronic documents submitted to the states under authorized

programs.

See

40 C.F.R. 3.10, 3.2000(a)(2). CROMERR sets forth performance standards for

electrnic document receiving systems used by states under authorized programs.

See

40 C.F.R.

3.2000(b). With CROMERR, USEPA chose to impose performance standards rather than

require specific technologies, formats, or detailed procedural submission steps.

See

70 Fed. Reg.

59852-53 (Oct. 13, 2005).

USEPA stated as follows in its introductory discussion of CROMERR:

[US]EPA is establishing the framework by which it will accept electronic reports

from regulated entities in satisfaction of certain document submission

requirements in [US]EPA’s regulations. [US]EPA will provide public notice

when [it] is ready to receive direct submissions of certain documents from

40

The specific Sections involved are 703.110, 703.189, 703.205, 703.208, 703.210, 703.211,

703.221, 703.232, 703.241, 703.280, 703.320, 720.111, 724.440, 725.440, and 726.200.

41

These federal amendments are also the subject of rules in two other dockets in which the

Board adopted very similar amendments relating to electronic reporting in identical-in-substance

amendments: Wastewater Pretreatment Update, USEPA Regulations (July 1, 2005 through

December 31, 2005), R06-13 (Oct. 19, 2006), and SDWA Update, USEPA Regulations (July 1,

2005 through December 31, 2005), R06-15 (Oct. 5, 2006).

42

The federally-authorized programs to which CROMERR applies are all state-implemented

aspects of the Clean Air Act (all conventional and hazardous air pollutant aspects), Clean Water

Act (National Pollutant Discharge Elimination System, wastewater pretreatment, and sludge

management aspects), Safe Drinking Water Act (national primary drinking water standards and

underground injection control aspects), Resource Conservation and Recovery Act (hazardous

waste, municipal solid waste landfill, and underground storage tank aspects), and the Lead-

Based Paint Exposure Abatement Act programs.

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