Current through Register Vol. 48, No. 38, September 20, 2024
a) After a RAP is issued, how it may be
modified, reissued, or terminated. In a RAP, the Agency must specify, either
directly or by reference, procedures for any future modification, reissuance,
or termination of the RAP. These procedures must provide adequate opportunities
for public review and comment on any modification, reissuance, or termination
that would significantly change the owner's or operator's management of its
remediation waste, or that otherwise merits public review and comment. If the
RAP has been incorporated into a traditional RCRA permit, as allowed pursuant
to Section
703.301(b)(3),
then the RAP will be modified according to the applicable requirements in
Sections
703.260
through
703.283,
reissued according to the applicable requirements in 35 Ill. Adm. Code
702.186 and
Sections
703.270
through
703.273, or
terminated according to the applicable requirements of 35 Ill. Adm. Code
702.186.
BOARD NOTE: Subsection (a) is derived from
40
CFR 270.170(2005).
b) Reasons for which the Agency may choose to
modify a final RAP.
1) The Agency may modify
the owner's or operator's final RAP on its own initiative only if one or more
of the following reasons listed in this Section exist. If one or more of these
reasons do not exist, then the Agency must not modify a final RAP, except at
the request of the owner or operator. Reasons for modification are the
following:
A) The owner or operator made
material and substantial alterations or additions to the activity that justify
applying different conditions;
B)
The Agency finds new information that was not available at the time of RAP
issuance and would have justified applying different RAP conditions at the time
of issuance;
C) The standards or
regulations on which the RAP was based have changed because of new or amended
statutes, standards, or regulations or by judicial decision after the RAP was
issued;
D) If the RAP includes any
schedules of compliance, the Agency may find reasons to modify the owner's or
operator's compliance schedule, such as an act of God, strike, flood, or
materials shortage or other events over which an owner or operator has little
or no control and for which there is no reasonably available remedy;
E) The owner or operator is not in compliance
with conditions of its RAP;
F) The
owner or operator failed in the application or during the RAP issuance process
to disclose fully all relevant facts, or an owner or operator misrepresented
any relevant facts at the time;
G)
The Agency has determined that the activity authorized by the owner's or
operator's RAP endangers human health or the environment and can only be
remedied by modifying the RAP; or
H) The owner or operator has notified the
Agency (as required in the RAP and pursuant to 35 Ill. Adm. Code
702.152(c)
) of a proposed transfer of a RAP.
2) Notwithstanding any other provision in
this Section, when the Agency reviews a RAP for a land disposal facility
pursuant to Section 703.304(f), it may modify the permit as necessary to assure
that the facility continues to comply with the currently applicable
requirements in 35 Ill. Adm. Code 702, 703, and 720 through 727.
3) The Agency must not reevaluate the
suitability of the facility location at the time of RAP modification unless new
information or standards indicate that a threat to human health or the
environment exists that was unknown when the RAP was issued.
BOARD NOTE: Subsection (b) is derived from
40
CFR 270.175(2005).
c) Reasons for which the Agency may choose to
revoke and reissue a final RAP.
1) The Agency
may reissue a final RAP on its own initiative only if one or more reasons for
reissuance exist. If one or more reasons do not exist, then the Agency must not
modify or reissue a final RAP, except at the owner's or operator's request.
Reasons for modification or reissuance are the same as the reasons listed for
RAP modifications in subsections (b)(1)(E) through (b)(1)(H) of this Section if
the Agency determines that reissuance of the RAP is appropriate.
2) The Agency must not reevaluate the
suitability of the facility location at the time of RAP reissuance, unless new
information or standards indicate that a threat to human health or the
environment exists that was unknown when the RAP was issued.
BOARD NOTE: Subsection (c) is derived from
40
CFR 270.180(2005).
d) Reasons for which the Agency may choose to
terminate a final RAP, or deny a renewal application. The Agency may terminate
a final RAP on its own initiative or deny a renewal application for the same
reasons as those listed for RAP modifications in subsections (b)(1)(E) through
(b)(1)(G) of this Section if the Agency determines that termination of the RAP
or denial of the RAP renewal application is appropriate.
BOARD NOTE: Subsection (d) is derived from
40
CFR 270.185(2005).
e) Administrative appeal of an Agency
decision to approve or deny a modification, reissuance, or termination of a RAP
.
1) Any commenter on the modification,
reissuance, or termination, or any person that participated in any hearing on
these actions, may appeal the Agency's decision to approve a modification,
reissuance, or termination of a RAP, according to Section
703.303(f).
Any person that did not file comments or did not participate in any public
hearing on the modification, reissuance, or termination may petition for
administrative review only of the changes from the draft to the final RAP
decision.
2) Any commenter on the
modification, reissuance, or termination, or any person that participated in
any hearing on these actions, may appeal the Agency's decision to deny a
request for modification, reissuance, or termination to the Board. Any person
that did not file comments or who did not participate in any public hearing on
the modification, reissuance, or termination may petition for administrative
review only of the changes from the draft to the final RAP decision.
3) The procedure for appeals of RAPs is as
follows:
A) The person appealing the decision
must send a petition to the Board pursuant to 35 Ill. Adm. Code 101 and 105.
The petition must briefly set forth the relevant facts, state the defect or
fault that serves as the basis for the appeal, and explain the basis for the
petitioner's legal standing to pursue the appeal.
B) The Board has 120 days after receiving the
petition to act on it.
C) If the
Board does not take action on the petition within 120 days after receiving it,
the appeal must be considered denied.
BOARD NOTE: Corresponding
40
CFR 270.190(c)(2) and (c)(3)
(2002) allow 60 days for administrative review, which is too short a time for
the Board to publish the appropriate notices, conduct public hearings, and
conduct its review. Rather, the Board has borrowed the 120 days allowed as
adequate time for Board review of permit appeals provided in Section 40(a)(2)
of the Act [415 ILCS
5/40(a)(2)] .
4) This appeal is a prerequisite
to seeking judicial review of the Agency action on the RAP.
BOARD NOTE: Subsection (e) is derived from
40
CFR 270.190(2005). The
corresponding federal provisions provide for informal appeal of an Agency RAP
decision. There is no comparable informal procedure pursuant to Sections 39 and
40 of the Act [415 ILCS 5/39 and 40 ].
f) Expiration of a RAP. RAPs must be issued
for a fixed term, not to exceed ten years, although they may be renewed upon
approval by the Agency in fixed increments of no more than ten years. In
addition, the Agency must review any RAP for hazardous waste land disposal five
years after the date of issuance or reissuance and the owner or operator or the
Agency must follow the requirements for modifying the RAP as necessary to
assure that the owner or operator continues to comply with currently applicable
requirements in the Act and federal RCRA sections 3004 and 3005 (
42 USC
6904 and
6905
).
BOARD NOTE: Subsection (f) is derived from
40 CFR
270.195(2005).
g) How an owner or operator may renew a RAP
that is expiring. If an owner or operator wishes to renew an expiring RAP, the
owner or operator must follow the process for application for and issuance of
RAPs in this Subpart H.
BOARD NOTE: Subsection (g) is derived from
40 CFR
270.200(2005).
h) What happens if the owner or operator has
applied correctly for a RAP renewal but has not received approval by the time
its old RAP expires. If the owner or operator has submitted a timely and
complete application for a RAP renewal, but the Agency, through no fault of the
owner or operator, has not issued a new RAP with an effective date on or before
the expiration date of the previous RAP, the previous RAP conditions continue
in force until the effective date of the new RAP or RAP denial.
BOARD NOTE: Subsection (h) is derived from
40
CFR
270.205(2005).
