Section 720

Section 720.122 Waste Delisting

a) Any person seeking to exclude a waste from a particular generating facility from the lists in Subpart D of 35 Ill. Adm. Code 721 may file a petition, as specified in subsection (n). The Board will grant the petition if the following occur:

1) The petitioner demonstrates that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or acute hazardous waste; and

2) The Board determines that there is a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A Board determination under the preceding sentence must be made by reliance on, and in a manner consistent with, "EPA RCRA Delisting Program − Guidance Manual for the Petitioner", incorporated by reference in Section 720.111(a). A waste that is so excluded, however, still may be a hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721.

b) Listed Wastes and Mixtures. A person may also petition the Board to exclude from 35 Ill. Adm. Code 721.103(a)(2)(B) or (c), a waste that is described in these Sections and is either a waste listed in Subpart D of 35 Ill. Adm. Code 721, or is derived from a waste listed in that Subpart. This exclusion may only be granted for a particular generating, storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by subsection (a). Where the waste is a mixture of a solid waste and one or more listed hazardous wastes or is derived from one or more listed hazardous wastes, the demonstration must be made with respect to the waste mixture as a whole; analyses must be conducted for not only those constituents for which the listed waste contained in the mixture was listed as hazardous, but also for factors (including additional constituents) that could cause the waste mixture to be a hazardous waste. A waste that is so excluded may still be a hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721.

c) Ignitable, Corrosive, Reactive and Toxicity Characteristic Wastes. If the waste is listed in codes "I", "C", "R", or "E" in Subpart D of 35 Ill. Adm. Code 721, the following requirements apply:

1) The petitioner must demonstrate that the waste does not exhibit the relevant characteristic for which the waste was listed, as defined in 35 Ill. Adm. Code 721.121, 721.122, 721.123, or 721.124, using any applicable methods prescribed in those Sections. The petitioner must also show that the waste does not exhibit any of the other characteristics, defined in those Sections, using any applicable methods prescribed in those Sections; and

2) Based on a complete petition, the Board will determine, if it has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A Board determination under the preceding sentence must be made by reliance on, and in a manner consistent with, "EPA RCRA Delisting Program − Guidance Manual for the Petitioner", incorporated by reference in Section 720.111(a). A waste that is so excluded, however, may still be a hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721.

d) Toxic Waste. If the waste is listed in code "T" in Subpart D of 35 Ill. Adm. Code 721, the following requirements apply:

1) The petitioner must demonstrate that the waste fulfills the following criteria:

A) It does not contain the constituent or constituents (as defined in Appendix G of 35 Ill. Adm. Code 721) that caused USEPA to list the waste; or

B) Although containing one or more of the hazardous constituents (as defined in Appendix G of 35 Ill. Adm. Code 721) that caused USEPA to list the waste, the waste does not meet the criterion of 35 Ill. Adm. Code 721.111(a)(3) when considering the factors used in 35 Ill. Adm. Code 721.111(a)(3)(A) through (a)(3)(K) under which the waste was listed as hazardous.

3) The petitioner must demonstrate that the waste does not exhibit any of the characteristics, defined in 35 Ill. Adm. Code 721.121, 721.122, 721.123, or 721.124, using any applicable methods prescribed in those Sections.

4) A waste that is so excluded, however, may still be a hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721.

e) Acute Hazardous Waste. If the waste is listed with the code "H" in Subpart D of 35 Ill. Adm. Code 721, the following requirements apply:

1) The petitioner must demonstrate that the waste does not meet the criterion of 35 Ill. Adm. Code 721.111(a)(2); and

4) A waste that is so excluded, however, may still be a hazardous waste by operation of Subpart C of 35 Ill. Adm. Code 721.

f) This subsection (f) corresponds with 40 CFR 260.22(f), which USEPA has marked "reserved". This statement maintains structural consistency with the federal regulations.

g) This subsection (g) corresponds with 40 CFR 260.22(g), which USEPA has marked "reserved". This statement maintains structural consistency with the federal regulations.

h) Demonstration samples must consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste.

i) Each petition must include, in addition to the information required by subsection (n):

1) The name and address of the laboratory facility performing the sampling or tests of the waste;

2) The names and qualifications of the persons sampling and testing the waste;

3) The dates of sampling and testing;

4) The location of the generating facility;

5) A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration;

6) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration;

7) Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in 35 Ill. Adm. Code 721.111(a)(3);

8) A description of the methodologies and equipment used to obtain the representative samples;

9) A description of the sample handling and preparation techniques, including techniques used for extraction, containerization, and preservation of the samples;

10) A description of the tests performed (including results);

11) The names and model numbers of the instruments used in performing the tests; and

12) The following statement signed by the generator or the generator's authorized representative:

I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.

j) After receiving a petition, the Board may request any additional information that the Board needs to evaluate the petition.

k) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility.

l) The Board will exclude only part of the waste for which the demonstration is submitted if the Board determines that variability of the waste justifies a partial exclusion.

BOARD NOTE: See "EPA RCRA Delisting Program − Guidance Manual for the Petitioner", incorporated by reference in Section 720.111(a).

m) Delisting of specific wastes from specific sources that have been adopted by USEPA may be proposed as State regulations that are identical in substance pursuant to Section 720.120(a).

n) Delistings that have not been adopted by USEPA may be proposed to the Board pursuant to a petition for adjusted standard pursuant to Section 28.1 of the Act and Subpart D of 35 Ill. Adm. Code 104. The justification for the adjusted standard is as specified in subsections (a) through (g), as applicable to the waste in question. The petition must be clearly labeled as a RCRA delisting adjusted standard petition.

1) In accordance with 35 Ill. Adm. Code 101.304, the petitioner must serve copies of the petition, and any other documents filed with the Board, on USEPA at the following addresses:

USEPA

Office of Resource Conservation and Recovery

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

USEPA, Region 5

77 West Jackson Boulevard

Chicago, IL 60604

2) The Board will mail copies of all opinions and orders to USEPA at the above addresses.

3) In conjunction with the normal updating of the RCRA regulations, the Board will maintain, in Appendix I of 35 Ill. Adm. Code 721, a listing of all adjusted standards granted by the Board.

o) The Agency may determine in a permit or a letter directed to a generator that, based on 35 Ill. Adm. Code 721, a waste from a particular source is not subject to these regulations. Such a finding is evidence against the Agency in any subsequent proceedings but will not be conclusive with reference to other persons or the Board.

p) Any petition to delist directed to the Board or request for determination directed to the Agency must include a showing that the waste will be generated or managed in Illinois.

q) The Board will not grant any petition that would render the Illinois RCRA program less stringent than if the decision were made by USEPA.

r) Delistings apply only within Illinois. Generators must comply with 35 Ill. Adm. Code 722 for waste that is hazardous in any state to which it is to be transported.

(Source: Amended at 42 Ill. Reg. 21215, effective November 19, 2018)