ILLINOIS POLLUTION CONTROL
BOARD
October 16,
1992
IN THE MATTER OF:
)
)
RCRA UPDATE, USEPA REGULATIONS
)
R92-10
(1/1/92
—
6f30/92)
)
(Identical 4n—~Substance
)
Rules)
Prorosal for Public Comment.
PROPOSED OPINION OF THE
BOARD
(by J. Anderson):
By a separate Order, pursuant to Section 7.2 and 22.4(a)
of
the Environmental Protection Act (Act),
the Board is proposing to
amend the RCRA hazardous waste regulations.
The amendments
involve 35 Ill.
Adin. Code 702,
703,
720, 721,
724,
725,
726 and
728.
The Board will receive written public comment for 45 days
after the date of publication of the proposed rules in the
Illinois Register.
The Board has indicated at a number of points below that it
“solicits comment” on certain aspects of the proposal.
This is
not intended to in any way limit the issues on which persons may
comment.
If the Board receives no comment on an issue, the Board
will assume that its proposed resolution of the issue is
acceptable.
Section 22.4 of the Act governs adoption of regulations
establishing the RCRA program in Illinois.
Section 22.4(a)
provides for quick adoption of regulations which are “identical
in substance” to federal regulations; Section 22.4(a) provides
that Title VII of the Act and Section 5 of the Administrative
Procedure Act shall not apply.
Because this rulemaking is not
subject to Section 5 of the Administrative Procedure Act,
it is
not subject to first notice or to second notice review by the
Joint Committee on Administrative Rules
(JCAR).
The federal RCRA
regulations are found at 40 CFR 260 through 270.
This rulemaking
updates Illinois’ RCRA rules to correspond with federal
amendments during the period January 1 through June 30, 1992.
The USEPA actions during this period are as follows:
57 Fed. Reg.
Date
Summary
14
Jan.
2,
1992
Criteria for listing
toxic hazardous waste.
3486
Jan. 29,
1992
Liners and
leak detection
for land disposal units.
5861
Feb.
18,
1992
Extension
of
stay
for
coatings
for
wood
preserving
drip
pads.
0136-Ot~59
2
7632
Mar.
3,
1992
Mixture and derived-from
rules.
8088
Mar.
6,
1992
Third—third corrections.
20770
May-15,
1992
General -“capacity
variance” for “debris”
21534
May
20,
1992
Exclusion
of
used
oil
filters.
23063
June 1,
1992
Correction to mixture and
derived-from rules.
27888
June 22,
1992
Exclusion of coke by-
product residues.
28632
June 26,
1992
National capacity
“variance” for certain
reclaimed lead storage
batteries.
On July 1,
1992, at 57 Fed.
Reg.
29220, USEPA also published
a correction to the May 20 used oil filter rule.
In addition,
at
57 Fed. Reg. 30658, July 10,
1992, USEPA published corrections to
the toxicity characteristic leaching procedure (TCLP)
rules.
The
Board will address these corrections in this Docket, even though
the corrections are outside the time frame of this batch period.
Most of the volume of the proposal comes from the leak
detection system (“LDS”)
rules in the January 29,
1992, Fed.
Reg.
USEPA has provided the Board with an electronic copy.
Although
the Board has below noted a number of editorial errors with this
large rulemaking,
these are of a type and frequency expected in
any large project.
The USEPA amendments include several site-specific
delistings.
As provided in 35 Ill. Ada. Code 720.122(p),
as
amended in R90-17, the Board will not consider adoption of site-
specific delistings as determined by the USEPA unless and until
someone files a proposal before the Board showing that the waste
will be generated or managed in Illinois.
EXTENSION OF TIME
ORDERS
Section 7.2(b) of the Act requires that identical in
substance rulemakings be completed within one year after the
first USEPA action in the batch period.
If the Board is unable
to do so it must enter an “extension of time” Order.
The
earliest USEPA action in the Docket was January
2,
1992.
The
Board anticipates no difficulty in finalizing this proposal
before January 2,
1993.
01 36-0~60
3
REGULATORY HISTORY
The complete history of the RCRA, UST and IJIC rules appears
at the end of this opinion.
While a short form of reference to
the adopting opinions will be used in the body of this opinion,
complete
-citations
---are -included in —the history
AGENCY
OR
BOARD
ACTION?
The USEPA RCRA rules contain decisions which,
as worded, are
to be made by the USEPA Regional Administrator.
These generally
pose a question as to who is supposed to make the decision at the
State level:
USEPA, the Board, the Agency or some other entity?
Section 7.2(a) (5)
of the Act requires the Board to specify which
decisions USEPA will retain.
In addition, the Board is to
specify which State agency is to make decisions, based on the
general division of functions within the Act and other Illinois
statutes.
In effectuating this requirement, the Board has almost
always changed “Regional Administrator” to “Agency”.
However,
in
some situations “Regional Administrator” has been changed to
“USEPA” or “Board”.
In situations in which the Board has determined that USEPA
will retain decision-making authority, the Board has replaced
“Regional Administrator” with “USEPA”, so as to avoid specifying
which office within USEPA is to make a decision.
In a few instances in identical in substance rules decisions
are not appropriate for Agency action pursuant to a permit
application.
Among the considerations in determining the general
division of authority between the Agency and the Board are the
following:
1.
Is the person making the decision applying a Board
regulation,
or taking action contrary to
(“waiving”)
a Board regulation?
It generally
takes some form of Board action to “waive” a Board
regulation.
For example, the Agency clearly has
authority to apply a regulation which says “If A,
do X;
if not A, do Y”.
On the other hand,
regulations which say “If not
A,
the state shall
waive X” are more troubling.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency
decision?
3.
Is there a right to appeal?
Agency actions are
generally appealable to the Board.
4.
Does this action concern a person who is required
to have a permit anyway?
If so there is a pre-
0136-O~6I
4
existing permit relationship which can easily be
used as a context for Agency decision.
If the
action concerns a person who does not have a
permit, it is more difficult to place the decision
into a procedural context which would be within
the--Agency’s jurisdicti-on
.-----Deci-sions
-involving
interim status are often more ambiguous as to
whether they are permit actions.
5.
Does the action result in exemption from the
permit requirement itself?
If so, Board action is
generally required.
6.
Does the decision amount to “determining, defining
or implementing environmental control standards”
within the meaning of Section 5(b) of the Act?
If
so,
it must be made by the Board.
Once it is determined that a decision must be made by the
Board,
rather than the Agency, it is necessary to determine what
procedural context is best suited for that decision.
There are
four common classes of Board decision:
variance, adjusted
standard, site specific rulemaking and enforcement.
The first
three are methods by which a regulation can be temporarily
postponed (variance) or adjusted to meet specific situations
(adjusted standard or site specific rulemaking).
Note that there
are differences in the nomenclature for these decisions between
the USEPA and Board regulations.
These differences have caused
past misunderstandings with USEPA.
A variance is initiated by the operator filing a petition
pursuant to Title IX of the Act and 35 Ill. Ada. Code 104.
The
Agency files a recommendation as to what action the Board should
take.
The Board may conduct a public hearing, and must do so if
there is an objection to the variance.
Board variances are:
temporary;
based on arbitrary or
unreasonable hardship;
and, require a plan for eventual
compliance with the general regulation.
To the extent a USEPA
decision involves these factors, a Board variance is an
appropriate mechanism.
A
variance is not an appropriate mechanism for a decision
which is not based on arbitrary or unreasonable hardship, or
which
grants
permanent relief without eventual compliance.
To
grant
permanent
relief,
the
Board
needs to grant a site specific
regulation or an adjusted standard pursuant to Sections 27 or
28..
of the Act, and 35 Ill. Ada. Code 102 or 106.
01 36-0ti~62
5
EDITORIAL
CONVENTIONS
As a final note, the rules have been edited to establish a
uniform usage with respect to “shall”,
“must”, “will”, and “may”.
“Shall” is used when the subject of a sentence has to do
something.
“Must” is used when someone has to do something,
-but
that someone is not the subject of the sentence.
“Will” is used
when the Board obliges itself to do something.
“May” is used
when a provision is optional.
Some of the USEPA rules appear to
say something other than what was intended.
Others do not read
correctly when “Board” or “Agency” is substituted into the
federal rule.
The Board does not intend to make any substantive
change in the rules by way of these edits.
Much of the text discussed below exists both as a Board and
USEPA rule.
When discussing one rule set,
the Board has provided
frequent citations to the other to aid in cross referencing.
These usually appear in brackets following a citation.
For
example,
“40 CFR 270.4
(702.181)” or “Section 702.181 (270.4”.
The first reference is the rule set primarily being discussed,
and the second
(in brackets
is the equivalent (or comparable)
rule in the other set.
The second reference is usually just the
number, with the “40 CFR”,
etc., understood.
The following discussion also includes many quotations from
the Board and USEPA rule sets.
Bold type is frequently used to
call attention to specific language within the quotes.
The
language in bold is usually discussed following the quotation.
PART 702:
RCRA
AND
UIC PERMITS
This Part includes permit rules which apply to both the RCRA
and UIC program.
Section 702.181
This Section is derived from 40
CFR
270.4, which was amended
at 57
Fed. Reg.
3486, January 29,
1992, in connection with the
new leak detection1 requirements.
As amended, the USEPA rule
reads as follows:
(a) Compliance with a RCRA permit during its term
constitutes compliance,
for purposes of enforcement,
with subtitle C of RCRA except for those requirements
not included in the permit which:
1The USEPA rules affect liners, leachate collection and
removal systems and leak detection systems.
For the sake of
brevity,
in this opinion, we will refer to these as “leak
detection”
(or
“LDS”),
except where the discussion focuses on
differences
among
these.
0I36~O~63
6
(1)
Become
effective
by
statute;
(2) Are promulgated under part 268 of this chapter
restricting the placement of hazardous wastes in or on
the land; or
(3) Are ~romulaated under part 264 of this charter
regardina leak detection systems for new arid
replacement surface impoundment, waste pile,
and
landfill units, and lateral expansions of surface
impoundment, waste pile. and landfill units. The leak
detection system requirements include double liners.
CQA programs. monitoring,
action leakage rates.
and
response action plans. and will be implemented through
the procedures of
§ 270.42 Class 1* permit
modifications.
The Board rule,
35 Ill. Ada. Code 702.181(a)
is quite
different:
The existence of a RCRA or UIC permit does not
constitute a defense to a violation of the
Environmental Protection Act or this Subtitle, except
for development, modification or operation without a
permit. However,
a permit may be modified, reissued or
revoked during its term for cause as set forth in 35
Ill. Ada. Code 703.270 through 703.273
(RCRA) and 35
Ill. Ada. Code 704.261 through 704.263
(UIC) and
Section 702.186.
The Board and USEPA rules go in opposite directions with
respect to the effect of the permit:
while compliance with the
USEPA permit is deemed compliance with the federal law, the State
permit affords no such protection.
In R81-32
(at p.
7)2,
the
Board determined that this was required by Illinois law, citing
Landfill, Inc..
V.
IPCB.
(1978).
74
Ill.
2d 541. 387 N.E.
2d 258.
The USEPA amendment is setting additional limitations on the
extent to which the RCRA permit is an enforcement shield.
These
amendments are not needed in the Illinois program, since the
entire concept is reversed.
The final sentence of the USEPA amendment specifies that the
“leak detection system requirements include double liners, CQA
programs, monitoring, action leakage rates, and response action
plans,
and will be implemented through the procedures of § 270.42
Class
1* permit modifications.”
This is unrelated to the “effect
of permit” subject matter of the remainder of the Section.
It is
2AS discussed in the regulatory history below,
R8l-32 was
the original adoption of the UIC program.
01 36-0L6L~
7
possible that this language needs to be inserted elsewhere.
The
Board has not, however, proposed to do so, since the language
appears to be merely a statement of intent.
As is discussed
below, USEPA has specified in
the
Appendix to Section 270.42
(703.App A
that these are Class 1* modifications.
Nothing more
is needed.
As is discussed in a footnote to the 1991 Edition of 40 CFR
270.4(a), USEPA inadvertently dropped the following sentence in a
1988 amendment:
However,
a permit may be modified, reissued or revoked
during its term for cause as set forth
The CFR indicates that USEPA would add the sentence back in
a future correction.
USEPA did not do so in this rulemaking.
The Board rule still contains the sentence, and the Board will
not propose to repeal it at this time.
The Board has proposed to update the Board note in this
Section, and to make other minor editorial changes.
However, the
substance of this Section remains the same.
PART 703:
RCRA
PERMITS
This Part contains rules governing
RCRA
permits.
It is
derived from 40 CFR 270.
All of the amendments are derived from
the liner and leak detection system
(LDS)
rules at 57 Fed.
Reg.
3486, January 29,
1992.
Section 703.203
This Section is derived from 40
CFR
270.17, which specifies
the contents of the RCRA Part B application module for a surface
impoundment.
The amendments (mainly to subsection
(b)) reflect
detailed new rules, discussed below in Part 724, concerning
liners, leak detection and removal, and construction quality
assurance (CQA).
As
is discussed below in
connection with Section 724.321(b),
the
Board is proposing to
utilize the adjusted standards
procedure for the “alternative design end operating practices”
determination
for
a
surface
impoundment.
At
the
USEPA level, 40
CFR
270.17(b) (1)
(703.203(b) (1)) would require the operator to
submit information for
this determination with the
Part B permit
application.
At the State level,
the information would be
submitted pursuant to a Part
106 adjusted standards petition,
as
provided below in Section 724.321(b).
It would be duplicative to
require the information in the permit application also.
All the
Agency needs is a copy of the Board
order on the adjusted
standard.
The Board has therefore proposed to amend Section
703.203(b)
(1)
as
follows:
01 36-0~65
8
The
liner system
(except for an existing portion of a
surface
impoundment).
If
an exemption from the
requirement for a liner is sought as provided by 35
Ill. Ada. Code 724.321(b), submit dctailod piano and
onginocring and hydrogcologio roports
as
appropriate,
4eseribing
altcrnate
dcaign
and operating praotioea
that will,
in oonjunotion
with looation aspects,
prevont
thc
migration
of
any
ha~ardouo
oonotitucnto
~nto
~
around-water or surface
~
r.f
-—s.
t4~e a
CODy
of
the
Board
order
grantinaanadlusted
standard
~ursuant to
35
Ill.
Ada.
Code
724.321(b
40
CFR 270.17(b)
(5)
requires
the
operator
to
include
a
proposed
“action
leakage
rate”
and
“response
action
plan”
with
the application.
These are addressed below in connection with
Section 724.322 and 724.323.
However, 40 CFR 270.17 does not
require the operator to include the “proposed pump operating
level” addressed in 40 CFR 264.226(d)(3)
(724.326(d)(3).
Since
this appears to be a parallel determination, the Board has added
it to Section 703.203(b) (5), so that the Board proposal reads:
Proposed action leakage rate, with rationale,
if
required under 35 Ill. Ada. Code
724.322,
response
action plan,
if required under 35 Ill. Ada. Code
7.24.323, and a proposed pump operating level,
if
required under 35 Ill. Ada. Code
724.326(d)
(3);
Section 703.204
This Section is derived from 40 CFR 270.18, which specifies
the contents of the RCRA Part B permit application module for a
waste pile.
Section
703.204(c)(l)(A)
(270.18(c)
(l)(i)
contains
the
permit application module for the “alternate designs”
demonstration in Section 724.351(b), below.
For the reasons
discussed
above
with Section 703.203(b) (1), the Board
is
proposing
to
require
a
copy
of
the
Board
order
with
the
permit
application, rather than a repetition of the information.
The main amendments are in Section 703.204(c) (1) (1)
—
(E).
There are no major problems with the text.
The language
concerning
the pump
operating level is
absent
from the waste pile
application,
as discussed below with Section 724.352.
Section 703 .204 (d)
(270.18 (d)
contains an erroneous cross
reference which the Board has proposed to correct:
“703.183(g
01 36-01~66
9
Section
703.207
This
Section
is
derived
from
40
CFR
270.21,
which
specifies
the contents of the RCRA Part B permit application module for a
landfill.
The main amendments are to Section 703
•
207(b) (1) (B)
-
(E).
Section 703.207(b)(l)(A)
270.2l(b)(l)(i))
contains the
“alternative designs” application module related to Section
724
•
401(b),
below.
For the reasons discussed above in connection
with Section 703.203 (b) (1) (A), the Board is proposing to replace
the detailed information request in the application with a
requirement to include the Board order granting the adjusted
standard.
The Board has proposed to add a “proposed pump operating
level” to this Section for use in Section 724.403(c) (3), below,
for reasons similar to those discussed above.
The text of
Section 703.207(b) (1) (E)
is:
Proposed action leakage rate, with rationale,
if
required under 35
Iii. Ada. Code 724.402, and response
action
plan,
if
required
under
35
Ill.
Ada.
Code
724404, and proposed pump operating level,
if required
under
35
Ill.
Ada.
Code
724.403;
The Federal Register for 40 CFR 270.21(b) (1) (v) contains an
erroneous
cross
reference
to
~~264.303~1for the response action
plan, which the Board has proposed to correct (in
703.207(b)(1)(E).
This should read “264.304” (724.404.~
The Fed. Reg. includes a revised text for section 270.21(c)
(703.207(c):
(C)
A
description
of
how
each
landfill,
including
the
double liner system, leachate collection and removal
system,
leak detection system, cover system, and
appurtenances for control of run—on and run—off, will
be inspected in order to meet the requirements of
§
264.303(a),
(b),
and
(c)
of
this
chapter.
This
information
must
be
included
in
the
inspection
plan
submitted under
§ 270.14(b) (5);
3This is somewhat confusing, because the USEPA rule is
citing to the pump operating level instead of the response action
plan.
However,
as discussed above, the Board is proposing to
modify this rule to address both the pump operating level and the
response action plan.
Therefore Section 724.403 winds up being
cited in the Board rule.
Q~36~01467
10
The existing language of Section 270.21(c)
(703.207(c)
governs the permit application for the “exemption” of former
Section 264.302
(724.402), which was repealed following HSWA
(R86-1).
Retention of the Section was an error in both the USEPA
and
Board
rules.
The new language governs the “inspection plan”
associated
with
the
LBS—rules.
The
-text-of
proposed--Sec-ti-on
703.207(c)
(270.21(c)
is:
A description of how each landfill, including the
double liner system,
leachate collection and removal
system,
leak
detection
system,
cover
system,
and
appurtenances
for
control
of
run-on
and
run—off,
will
be inspected in order to meet the requirements of 35
Ill.
Ada.
Code
724.403(a),
(b),
and
(c).
This
information
must
be
included
in the inspection plan
submitted
under
Section
703.183(e);
This
language
is similar to Section 270.21(d)
(703.207(d)).
One
possibility
is
that USEPA intended to amend that Section,
rather
than
to replace subsection
(c).
Another possibility is
that subsection
(d) continues to govern landfills which are not
subject to the LDS rules.
The Board
solicits
comment as to
whether Section 703.207(d)
(270.21(d)
should be retained:
A description of how each landfill, including the
liner and cover systems, will be inspected in order to
meet the requirements of the 35 Ill. Ada. Code
724.403(a)
and
(b).
This
information should must be
included
in
the inspection plan submitted under Section
703.183(e);
Section
703.Appendix
A
This
Appendix
is
drawn from 40 CFR
270.42, Appendix I.
It
specifies
the
type
of
permit
modification procedure to be used
for various changes.
The amendments add items
(B) (7),
(H) (6) and
(7), and
(J) (7)
and
(8),
dealing
with
changes
to
the construction
quality assurance (CQA)
plan, and modifications to meet the new
liner and leak detection and removal requirements.
The procedures are specified in Section 703.280 et seq.,
which are not involved in this rulemaking.
The permittee may
make a Class 1 change followed by notification to the Agency.
The permittee must notify the Agency in advance of a Class
2
change, and may make the change unless the Agency objects.
Class
3 modifications require prior approval.
Several of the new types of changes are “Class
.*“~
As
provided in Section 703.281(a) (2) and
(b), the Agency must give
prior written approval for a Class 1* change.
Public notice is
given following the Agency approval.
01 36-0~468
11
PART 720:
GENERAL PROVISIONS
This Part specifies definitions, incorporations by reference
and other general provisions governing the hazardous waste
program.
It is drawn from 40 CFR 260.
The USEPA amendments are
drawn entirely from 57 Fed.
Req-.- 348k, -January
-2-9,---l-992,-the
amendments to the liner and leak detection requirements.
Section 720.110
Definitions
The definition of “qualified groundwater scientist” is
proposed in R92-1.
It will probably be adopted in that Docket
prior to final action on this Docket.
The Board has proposed to add a definition of “LDS”,
an
acronym for “leak detection system” which is used sporadically in
the USEPA rules.
The Board will use this acronym in this
opinion, and in the body of the rules.
The Board will restate
the definition of the acronym at places to avoid confusion.
USEPA has added a new definition and amended a second:
“replacement unit” and “suinp”.
The first definition poses
several problems.
It reads as follows:
Replacement unit means a landfill, surface
impoundment, or waste pile unit
(1) from which all or
substantially all of the waste is removed, and
(2) that
is subsequently reused to treat,
store, or dispose of
hazardous waste.
“Replacement unit” does not apply to a
unit from which waste is removed during closure,
if the
subsequent reuse solely involves the disposal of waste
from that unit and other closing units or corrective
action areas at the facility,
in accordance with an
approved closure plan or EPA or Stats
approved
corrective action.
The structure of the definition violates two basic Code
Division
format
rules:
One
cannot
have
numbered
paragraphs
in
a
definition;
and,
one
cannot
break
a
numbered
list
out
in
the
middle of a paragraph.
Retaining the list structure would
involve turning the definition inside out.
However, this appears
to be unnecessary, since the definition is understandable with
the numbers simply removed.
The next problem is the “‘Replacement unit’
does
not
apply
to...”
language.
In
a
definition,
this
would
be
better
stated
as
“does not include”.
The final problems involve the exclusion of units which are
subsequently used solely for disposal of waste from that unit or
other closing units at the facility.
Such units would not be
“replacement units”, and hence would not be subject to the new
Ut 36-0ti~69
12
liner and leachate collection requirements.
For example, see
Section 724.351(c), below.
Non-replacement units are limited to those receiving waste
in
accordance
with
“an
approved
closure
plan
or
EPA or State
approved
corrective
-action.
!L~For.one~thing,
-it
is
not-clear
why
the
corrective
action
must
be
approved
specifically
by
USEPA
or
a
State, but not the closure plan.
The Board suggests that this is
an
editorial
error,
so
that both must receive the same type of
approval.
The main problem is whether the Illinois rule needs to
address the possibility of approval by other states, or by USEPA.
With respect to the approval by other states, the USEPA
definition appears to be limited to disposal of waste from units
at a single facility.
In other words,
a
unit
receiving
waste
from
a facility closing in another state could not qualify as a
non-replacement unit.
The Board does not therefore have to allow
for approval by other states.
The next question is whether the Board should allow for
approval by USEPA.
Within Illinois, HSWA-driven USEPA amendments
become effective immediately upon federal adoption.
Sections 7.2
and 22.4(a) of the Act require the Board to adopt the federal
requirement,
which
then
becomes
a
State
requirement.
A
dual
federal/State
then
exists
until
USEPA
authorizes
the Illinois
rule,
at
which
time the federal requirement is no longer
effective in Illinois.
(See 57 Fed.
Reg. 3480, January 29,
1992)
There
is
therefore
a
possibility
that
a
portion
of
a
closure
or
post—closure care plan would have been primarily approved by
USEPA.
It appears that the federal intent of the limitation has
been met so long as either USEPA or the Agency has approved the
closure or post—closure plan.
Although the Board has proposed to
leave this as “USEPA or the Agency”,
the Board solicit, comment
as to whether approval by just the Agency ought to control at the
State level.
The
text
of
the
definition
as
proposed
by
the
Board
is
as
follows:
“Replacement
unit”
means
a
landfill,
surface
impoundment
or
waste
pile
unit
from
which
all
or
substantially all of the waste is removed,
and
which
is
subsequently reused to treat, store or dispose of
hazardous waste.
“Replacement unit” does not include a
unit from which waste is removed during closure, if the
subsequent reuse solely involves the disposal of waste
from that unit and other closing units or corrective
action areas at the facility,
in accordance with a
closure or corrective action plan approved by USEPA or
the Agency.
0136- 0ii70
13
USEPA has also amended the definition of “Bump”
to
give
it
a
special meaning in the context of the liner and leachate
collection rules.
The definition proposed by the Board is as
follows:
“Suap”-
means
any- -pit
or reservoir that---meets—the
definition of tank and those
troughs
or
trenches
connected to it that serve to collect hazardous waste
for transport to hazardous waste storage, treatment or
disposal facilities; except that, as used in the
landfill,
surface impoundment and waste pile rules.
“sump”
means
any
lined
pit or reservoir that serves to
collect liauids drained from a leachate collection and
removal system or leak detection system for subsequent
removal from the system.
PART 721:
DEFINITION OF ‘HAZARDOUS WASTE’
This part contains the definitions of “solid waste” and
hazardous waste”, together with the procedures for listing and
the listings themselves.
It is derived from 40 CFR 261.
USEPA
has amended these rules in several isolated rulemakings, which
will be identified with each Section.
Section 721. 103
This Section is the definition of “hazardous waste”
USEPA
amended it at 57 Fed. Reg.
7632, March
3,
1992, and corrected the
amendment at 57 Fed. Reg.
23063, June 1, 1992.
The amendments
concern the “mixture and derived—from” rules.
Although USEPA has
reprinted the entire text of Section 261.3,
the amendments appear
to
be
to
only
a
small portion of the text.
In Section 721. 103 (a) (2) (A), the main amendment (in the
correction)
is
that
the
reference
to
the
EP
toxicity
test
has
been changed to reference the toxicity characteristic, measured
by the TCLP test, which replaced the EP toxicity test for most
purposes.
The Board adopted the TCLP
test in R90-10.
Most of the language in Section 721.103(a) (2) (A)
concerns
the
“Bevill
exclusion”
for
certain
mining
wastes.
The
Board
adopted
this
language
in
R90-2.
The
Board
noted
and
corrected
numerous
minor
editorial
problems
with
the
USEPA
rule.
These
have
not
been
fixed,
and
account
for
most
of
the
differences
between the Board and USEPA text.
The Board has not proposed to
change its text.
USEPA has made several other minor changes in
wording to Section 721.103 (a) (2) (B) et
seq.,
which the
Board has
followed.
In section 261.3(a)(2)(iv)(E)
(721.103(a)(2)(D)(v)
USEPA
has apparently added a comma to the second proviso, so it reads:
0136-0L471
14
“provided the wastes, combined annualized average...”
This is
obviously wrong, and the Board has proposed no change.4
40 CFR 261.3(c)(2)(ii)(C)
(721.103(c)(2)(B)(iii)) was added
in R9l-13, based
on
the
August
19,
1991
Federal Register.
The
additi-on
was
a
correct-ion
-
-concerning---”-high temperaturemetal
recovery wastes”, which the Board addressed with the underlying
rule, sooner than in the normal batch period.
Apparently the
subsection was inadvertently repealed with the March
3
Fed. Reg.,
and then restored with the June 1,
1992, correction.
This USEPA
amendment
has
no
effect
on
the
Board
rules.
When
the
Board
adopted
its
version
of
40
CFR
26l.3(c)(2)(ii)(C)
(72l.l03(c)(2)(B)(iii),
it
noted
and
corrected a number of editorial errors.
This is discussed in the
R91-13 Opinion, at p.
22
-
25.
USEPA has not corrected these
editorial errors in this correction.
The Board has not been able
to identify any substantive changes in the USEPA correction with
respect to this subsection,
and has proposed none.
The March
3,
1992,
Fed. Reg. addressed the “mixture and
derived—from” rules which are in 40 CFR 261.3(d).
One change
appears to have been the omission of the “however” clause from
section 261.3(d)(l)
(72l.103(d)(l):
(However, wastes that exhibit a characteristic at the
point of generation may still be subject to the
requirements of part 268, even if they no longer
exhibit a characteristic at the point of land
disposal.)
However, this was added back in the June 1
corrections.
The March
3
Fed.
Reg. added section 261.3(e)
(721.103(e)):
(e)
Sunset provision.
Paragraphs
(a) (2) (iv) and
(c) (2) (i) of this section shall remain in effect only
until April 28,
1993.
40 CFR 26l.3(a)(2)(iv)
(721.103(a)(2)(D)
is a lengthy
elaboration on the mixture rule with respect to various types of
listed waste.
40 CFR 261.3(c)(2)(i)
(72l.103(c)(2)(A)
includes
solid wastes generated from the treatment of listed hazardous
waste.
Under the existing rules,
a mixture of any waste with a
“listed” waste, and any waste derived from treatment of a listed
hazardous waste remains a hazardous waste unless removed by a
41t is possible that USEPA intended this as a possessive:
“wastes”.
01
36-OI.i.72
15
site-specific “delisting”.5
The mixture and derived—from rules
will now self—destruct, unless amended by April,
1993.
Section 721.104
This Section contains
.
exclusions from the.-definition-of
“hazardous waste”.
It was amended at
57
Fed.
Reg.
21534,
May
20,
1992 and at 57 Fed. Reg.
27888, June 22,
1992 and at
57
Fed.
Reg.
30658, July 10,
1992.
The last is a correction to the TCLP
rules, which the Board is addressing outside the normal batch
period.
Also, the May 20 action was corrected at 57 Fed. Reg.
29220, July 1,
1992, which the Board is also addressing outside
the normal batch period.
40 CFR 261.4(a)
(721.104(a))
lists exclusions which are
neither hazardous waste nor “solid waste”.
USEPA amended 40 CFR
261.4(a) (10) at 57 Fed. Reg.
27888, June 22, 1992.
This modifies
the exclusion for certain recycled coke/coal tar by—products.
The amendment,
as proposed by the Board,
is as follows
(721.104(a) (10):
Whcn
used
as
a fuel, ookc and ooal tar from the
-iron
and
stool
industry
that
contains
or
is
produced
from
acoanter tank tar sludge, UCEPA hazardous waste 1(087.
The process
of
producing
coke
and
coal
tar from such
desantor tank tar sludge in a coke ovon is likewise
excluded from rcgulation.Hazardous waste number 1(087.
and any wastes from the coke by—products processes
which are hazardous only because they exhibit the
toxicity characteristic specified in Section 721.124,
when.
subseauent to generation,
these materials are
recycled to coke ovens, to the tar recovery process as
a feedstock to produce coal tar or are mixed with coal
tar prior to the tar’s sale or refining.
This
exclusion is conditioned on there being no land
disposal of the wastes from the point they are
generated to the point they are recycled to coke ovens
or the tar refining process.
40 CFR 261.4(b)
(721.104(b)
lists exclusions of “solid
wastes” which are hazardous wastes.
USEPA corrected 40 CFR
261.4(b)(6)(ii)
(72l.104(b)(6)(B)
at 57 Fed. Reg. 30658, July
10,
1992, to replace the reference to the EP toxicity
characteristic with a reference to the toxicity characteristic
(measured by TCLP).
The Board language is as follows
(721.104(b) (6) (B):
5The Illinois rules, as amended in R90-17, require an
adjusted standard for delisting.
01 36-0~473
16
Specific wastes which meet the standard in subsections
(b) (6)
(A) (i),
(ii)
and
(iii),
above,
(so
long
as
they
do not fail the test for the toxicity characteristic
for any other constituent of EP toxicity, and do not
~a—the—.tee4e~—~hik.itany
other characteristic)
USEPA corrected 40 CFR 26l.4(b)(9)
Section
721.104(b) (9))
at
57
Fed.
Reg.
30658, July 10, 1992,
also in connection with the
TCLP corrections.
The Board language is:
Solid waste which consists of discarded arsenical-
treated wood or wood products which fails the test for
the toxicity characteristic solely for arsenic ~
hazardous waste codes D004 through D017 and which is
not a hazardous waste for any other reason or reasons
if the waste is generated by persons who utilize the
arsenical-treated wood and wood products for these
materials’
intended end use.
USEPA added a new exclusion as 40 CFR 261.4(b) (15)
721.104(b)
(15)) at 57 Fed. Reg.
21534, May 20,
1992.
This was
corrected at 57 Fed. Reg. 29220, July 1,
1992.
This excludes
certain used oil filters which have been properly drained.
The
Board
language
is:
Non-terne plated used oil filters which are not mixed
with
wastes
listed
in
Subpart D.
if
these oil filters
have been gravity hot-drained using one of the
following
methods:
~j
Puncturing the filter anti-drain back valve or the
filter dome end and hot-draining
~j
Hot-draining and crushing
Qj
Dismantling and hot-draining;
or.
Qj
Any other eauivalent hot-draining method which
will remove used oil.
The subsection numbering in
the USEPA and
Board rule now
jumps from (b)(12) to
(15), with (13) and
(14) missing.
The
Board has numbered its proposal in parallel with the USEPA
numbering,
but solicits
comment
as to whether something may be
missing.
Section 721.111
This Section is drawn from 40 CFR 261.11, which was amended
at 57 Fed. Reg.
14, January 2,
1992.
These are the criteria used
by USEPA for listing hazardous waste.
Section 721.111 was
O136-0’~7’4
17
recently amended in R90-17, which revised the delisting rules to
better accommodate delegation of this authority by USEPA.
The “how to list
a waste” rules are different from most of
the rest of the USEPA RCRA rules in that, rather than governing
hazardous waste operations, they
overn f~fturerulemaktng actions
to be taken by USEPA.
The Board did not initially adopt an
equivalent rule, since a Board rule would seem to be a State rule
regulating USEPA, since USEPA was not going to delegate listing
authority,
and since the Board would not be governed by the
regulatory language to the extent it did exercise listing
authority.
The Board instead incorporated the USEPA rule by
reference.
However, once delisting authority was delegated,
it
became apparent that the listing standards within 40 CFR 261.11
were critical for delisting.
In R90-17, the Board therefore
adopted most of the text of section 261.11, but worded it as a
recitation of USEPA’s criteria for listing, rather than as a rule
enforceable
against
USEPA.
There
are, therefore, numerous
differences in wording between the Board and USEPA rules.
Apart from the functional differences between the Board and
USEPA rules, there are a number of editorial problems with the
USEPA rule,
which were discussed in the R90—17 Opinion.
In
particular,
section 261.11(a) (3), the topic of the January
2,
1992,
amendment,
includes a “hanging paragraph” in which the text
returns to the original level of indentation after a list is
broken out.
The Code Division prohibits this format.
The Board
therefore had to restructure this portion of the rule in R90-17.
The hanging paragraph became two Board notes,
following the
introduction to subsection
(a)
(3)
and
subsection
(a)
(3) (K).
USEPA made a minor, but important, change in wording to 40
CFR 261.11(a) (3)
at 55 Fed. Reg.
18726, May
4,
1990.
The
Board
picked this up in R90-17. As discussed at 57 Fed.
Reg.
13, USEPA
initially treated the change as a technical revision, which was
made without notice and opportunity for comment.
However, after
opposition arose, USEPA made a new proposal, which appeared at 55
Fed.
Reg.
33238, July 19,
1991.
This resulted in the January
2,
1992,
USEPA action, which
is
the
subject
of this Docket.
The USEPA amendment appears to require only a minor change
in wording to Section 72l.lll(a)(3)
261.11(a)(3fl:
Toxic waste.
It contains any of the toxic constituents
listed in Appendix H
and,
after
considering
any
of
the
following factors, USEPA concludes that the
waste is
capable of posing a substantial present or potential
hazard to human health or the environment when
improperly
treated,
stored,
transported
or
disposed
of,
or
otherwise
managed:...
0136-01475
18
Section 721.Appendix I, Table D (Not Amended)
This Appendix is a listing of delisting adjusted standards.
This currently lists only the Keystone delisting adopted in AS
91—1.
None
have
been
adopted since.
The Board has therefore
proposed
no~.changes
tothis Appendix,biit.willmake.changes. at. a
later date to list any additional adjusted standards.
PART
724:
STANDARDS
FOR
PERMITTED RWN FACILITIES
This Part contains the standards for owners and operators of
hazardous waste management
(HWM) facilities with RCRA permits.
Standards
for
interim
status
facilities
are
in
Part
725,
below.
This Part is drawn from 40 CFR 264.
Most of the amendments come
from the liner and leak detection system
(LDS)
amendments at 57
Fed. Reg.
3486, January 29,
1992.
This includes the addition of
numerous Sections to this Part.
USEPA is reusing several section numbers which were used for
Sections which were repealed following the HSWA Act (R86-1 at the
State level).
Under the Administrative Code Division rules,
repealed Sections remain as a heading, with a “Repealed”
designation
(a “ghost”).
The new Sections will therefore appear
at the State level as amendments replacing the “ghosts”.
Section 724.113
General Waste Analysis
This Section is derived from 40 CFR 264.13, which was
amended at 57 Fed. Reg. 8088, March
6,
1992, in connection with
the “third third” corrections.
The “third third” land disposal
bans were the main topic of R90-ll.
The last Board amendment to
this Section was in R90-11.
The amendments are minor changes in
the wording of 40 CFR 264.13(a)(l)
(724.l13(a)(1),
which are
easier to set forth than describe.
The Board amendment is as
follows:
Before an owner or operator treats,
stores or disposes
of any hazardous waste~,or non-hazardous waste~if
applicable under Section
724.213(d), the owner or
operator shall obtain a detailed chemical and physical
analysis
of
a
representative
sample
of
the
wastes.
At
a minimum, this
~
analysis must contain all the
information which must be known
to
treat,
store
or
dispose of the waste in accordance with tk*e
requirements of this Part .~
~
35
Ill.
Adna.
Code
728-,-
or with the oond~..~onaof a permit issuod
under
35
Ill.
Adna.
Code
702.
703 and 705.
Section
724.115
General
Inspection
Requirements
This Section is derived from 40 CFR 264.15, which was
amended at 57 Fed. Reg.
3486,
in connection with LDS rules.
This
o~36_
01476
19
Section deals with “inspections” which must be performed and
documented by the operator.
The amendments are mainly changes to
cross references to reflect new rules discussed below.
The Board
amendment to Section 724.115(b) (4)
is:
The frequency~of inspection ~y
vary torthe itemwon
the
schedule.
However,
it should be based on the rate
of possible deterioration of the equipment and the
probability of an environmental or human health
incident if the deterioration, malfunction or any
operator error goes undetected between inspections.
Areas subject to spills, such as loading and unloading
areas, must be inspected daily when in use.
At a
minimum, the inspection schedule must include the terms
and frequencies called for in Sections 724.274,
724.294,
724.293, 724.295, 724.326, 724.353,
724.354,
724.378k
724.403,
724.447,
724.702,
724.933,
724.952,
724.953 and 724.958, where applicable.
Section 724.119
Construction Quality Assurance Program
This new Section is derived from 40 CFR
264.19,
adopted
at
57 Fed. Reg.
3486,
in connection with LDS
rules.
This
requires
a
“Construction Quality Assurance Program”
(CQA Program)
for
certain surface impoundments, waste piles and landfill units.
Among other things, the CQA program has to address the
construction of soil liners, geomembrane liners,
leachate
collection and removal systems, and leak detection systems.
The
operator has to have a CQA plan and a CQA officer, and has to
certify, before receiving waste, that the CQA plan was
successfully carried out.
40 CFR 264.19(c) (2)
requires test fills or other
measurements of hydraulic conductivity of recompacted liners.
The USEPA rule reads as follows:
The CQA program shall include test fills for compacted
soil liners, using the same compaction methods as in
the
full
scale
unit,
to
ensure
that
the
liners
are
constructed
to meet the hydraulic conductivity
requirements
of
SS
264.221(c)
(1)
(i) (B),
264.25(c)(1)(i)(B),
and
264.301(c)(1)(i)(B)
in
the
field.
Compliance
with
the
hydraulic
conductivity
requirements must be verified by using in-situ testing
on the constructed test fill. The
R.gional
~dmini.trator may
accept
an alternative demonstration,
in lieu of a test fill, where data are sufficient to
show that a constructed soil liner will meet the
hydraulic conductivity requirements of ~
264.221(c)
(1)
(i) (B),
264.251(c) (1) (i) (B), and
264.301(c) (1) (i) (B)
in the field.
0136-01477
20
There are several minor problems with this language.
The
first problem concerns the agency with authority to make this
decision at the State level.
A general discussion of how the
Board decides this appears in the introduction to this Opinion.
The Board sees no indication that USEPA intends to retain this
authority.
The -choice istherefore as between the Bo&rd
and
Agency.
This decision,
in Part 264
724,
concerns
an
operator
who either has a permit or is required to get one.
The general
rule
requires
a test fill, or an alternative demonstration “where
data are sufficient to show that a constructed soil liner will
meet the hydraulic conductivity requirements”.
Rather than a
“waiver”
of
the
test fill requirement, this is an alternative way
of showing the same thing.
This is a technical showing of a type
typically made by the Agency on a permit application.
The USEPA rule provides that the Regional Administrator “may
accept” the alternative.
As “may”
is defined in the general
introduction above, this could be construed as meaning that the
decision maker “may or may not” accept the alternative,
regardless of whether the data was “sufficient” under the
standard.
The Board has therefore proposed to word this as “the
Agency
shall accept...where data are sufficient”.
The Board
solicits comment as to whether there are other grounds on which
the Agency should be able to reject the alternative.
The USEPA rule also is worded so as to require that the data
be sufficient to show compliance with the impoundment, pile and
landf ill
rules.
The
alternative
data
need
to
be
sufficient
only
to meet the requirements for the type of unit in question.
The text of Section 724.119(c)(2)
264.19(c)(2),
as
proposed by the Board,
is as follows:
The CQA program must include test fills for compacted
soil liners, using the same compaction methods as in
the full scale unit,
to ensure that the liners are
constructed to meet the hydraulic conductivity
requirements of Sections 724.321(c) (1) (A) (ii),
724.351(c) (1) (A) (ii) or 724.401(c) (1) (A)
(ii) in the
field.
Compliance with the hydraulic conductivity
requirements must be verified by using in—situ testing
on the constructed test fill.
The Agency shall accept
an
alternative
demonstration,
in
lieu
of
a
test
fill,
where
data
are
sufficient
to
show
that
a
constructed
soil liner will meet the hydraulic conductivity
requirements of Sections 724.321(c) (1) (A) (ii),
724.351(c) (1) (A) (ii) or 724.401(c) (1) (A)
(ii)
in the
field.
40 CFR 264.19(d)
724.119(d))
prohibits acceptance of waste
until the CQA officer certified that the CQA program has been
0136-01478
21
carried out and that the unit meets the requirements of this
Part,
and:
The procedure in
§ 270.30(1) (2) (ii) of this chapter has
been completed.6
40
CFR
270.30(1)
(2)
corresponds
with
Section
703.247;
270.30(1)
(2)
(ii)
is 703.247(b).
This prohibits receipt of waste
following notification to the State, until either the State has
inspected the unit,
or 15 days have lapsed without State action.
Section 724.173
Operating Record
This Section is drawn from 40 CFR 264.73, which was also
amended in connection with LDS rules.
The amendments add cross
references to the new requirements.
40 CFR 264.73 (b) (6) the operator to record the following:
Monitoring,
testing or analytical data,
and corrective
action
where
required
by
subpart
F
and
§~
264.19,
264.191, 264.193,
264.195, 264.222,
264.223, 264.226,
264.252—264.254, 264.276, 264.278, 264.280,
264.302—
264.304,
264.309,
264.347,
264.602,
264.1034(c)—
264.1034(f),
264.1035,
264.1063(d)—264.l063(i),
and
264
•
1064.
As worded, the USEPA rule appears to require the data to be
recorded only if required by all the listed Sections, some of
which are mutually exclusive.
The Board believes this is an
editorial error by USEPA, and has retained “or” in its equivalent
rule
724.173(b)
(6).
The Board also believes that the reference to “corrective
action” has an understood “data” after it.
The Board has
proposed to insert this word,
but
solicits
comment.
The proposed
text of Section 724.173(b) (6)
is as follows:
Monitoring,
testing or analytical data and corrective
action data where required by Subpart F or Sections
724.119. 724,291, 724.293. 724.295~724.322.
724.323.
724.326,
724.353,
724.353
throuah
724.354,
724.376,
724.378,
724.380,
724.403,
724.402
through
724.404,
724.409,
724.447,
724.702,
724.934(c)
through
(f),
724.935,
724.963(d)
through
(i)
or
724.964.
6The reference is to “1”, as in “eli”.
0 136-01479
22
SUBPART K:
SURFACE IMPOUNDMENTS
This Subpart contains design and operating requirements for
surface impoundments.
The amendments specify the design and
operating requirements for leak detection7 at new8 surface
impoundments.
Section 724.321
Design and operating requirements (surface
impoundments)
This Section is drawn from 40 CFR
264.221.
Section 724.321(b) allows for approval of alternate design
or operating practices.
As adopted by the Board
(in R82-l9),
this allowed alternative practices only pursuant to a variance or
site-specific rulemaking.
Since that time,
Section 28.1 has been
added to the Act, authorizing this type of decision by “adjusted
standard”.
The Board has proposed to modify this Section to
allow the use of adjusted standards for this approval.
Section 28.1(b)
allows the Board to specify the “level of
justification” at the time it adopts the rule authorizing an
adjusted standard procedure.
The USEPA rule, and existing Board
rule,
contain language appropriate as the level of justification.
The language appears below.
The Board has reworded the Section
to make it clear what the level of justification
is.
At one time the Board adopted procedures which were specific
to RCRA adjusted standards.
These remain
in
the
rule
book
as
35
Ill. Adm. Code 1o6.Subpart
D, for use with the rules that
specifically reference them.
The Board has since adopted general
adjusted standards procedures in 35 Ill. Adm. Code 106.Subpart G.
The USEPA rule includes at least six procedures involving
“alternative design
(and)
or
operating practices”.
While this
one uses “and”, USEPA has apparently changed subsection
(d) below
to read “or”.
Of the other four,
some say “and”,
others “or” and
others both.
The Board suggests that “or” is more correct, and
TThe USEPA rules affect liners, leachate collection and
removal
systems
and
leak
detection
systems
(“LDSs”).
For
the
sake
of
brevity,
in
the
rest of this opinion, we will refer to
these as “leak detection” or
“LDS”,
except
where
the
discussion
focusses on differences among these.
8The applicability of the requirements is stated in the
subsection quoted below in connection with Section 724.321(c),
which
is
repeated
f or
each
type
of
unit.
For
the sake of
brevity,
in this opinion, we will refer to these as “new” units,
except where the discussion focusses on the different types.
0136-01480
23
The owner or operator will be exempted from the
requirements of subsection
(a) above if the Board
findo, based on a demonstration by the
o~moror
operator,
in a variance and/or site—specific
rulemaking,
grants an adiusted standard pursuant
to 35
Ill. Adm. Code l06.Sub~art
G.
The
level
of
lustification is a demonstration by the owner or
~perator that alternate design and
Q~
operating
practices,
together with location characteristics,
will
prevent
the
migration
of
any
hazardous
constituents
(see Section 724.193) into the
groundwater or surface water at any future time.
In deciding whether to grant an exemption adlusted
standard, the Board will consider:
1)
The
nature
and
quantity
of
the
wastes;
2)
The proposed alternate design and operation;
3)
The hydrogeologic setting of the facility,
including the attenuative capacity and thickness
of
the
liners
and soils present between the
impoundment
and
groundwater
or
surface
water;
and
4)
All other factors which would influence the
quality and mobility of the leachate produced and
the potential for it to migrate to groundwater or
surface water.
The applicability of the new leak detection requirements
is
governed by 40 CFR 264.221(c)
(724.321(c),
which reads as
follows:
The owner or operator
of each new surface impoundment
unit on which construction commences after January 29,
1992, each lateral expansion of a surface impoundment
unit on which construction commences after July 29,
1992 and each replacement of an existing surface
impoundment unit that is to commence reuse after July
29,
1992
must
install
two
or
more
liners
and
a
leachate
collection and removal system between such liners.
“Construction commences”
is as defined in ~ 260.10 of
this chapter under “existing facility”.
has proposed to revise all these procedures to be consistent.
The Board solicits comment on this.
The Board has proposed to reference these, rather than the
RCRA-specific procedures.
The text of the Board’s proposal 724.321(b)
is as follows:
b)
0136-01481
24
These dates have already passed.
This raises a question as
to whether the Board ought to adopt the rule with a later State
effective date.
This depends in part on whether these are HSWA-
driven amendments, which are already effective
as
federal
law
in
Illinois.
The new leak detection (and other)
requirements do
appear to be HSWA-driven rules
(57
F-ed. Rag.
3462)--.-----S~ince
Illinois facilities are already subject to these requirements,
there
appears
to
be
no
problem
with
adopting the State rule with
a retroactive date.
40 CFR 264.221(c) (1) (i) (B) •and
(c) (2) (ii)
(724.321(c) (1) (A) (ii) and
(C)
(2) (B)
include
three
numerical
standards,
as
follows:
(A
composite
bottom
liner
...
The lower component
must be constructed of at least
3 feet
(91 cm) of
compacted soil material with a hydraulic conductivity
of no more than 1X10f7/cm/sec.
(LDS
...)
Constructed
of
granular
drainage
materials
with a hydraulic conductivity of lXlOf1/cm/sec or more
and a thickness of 12 inches
(30.5 cm) or more; or
constructed of synthetic or geonet drainage materials
with a transmissivity of 3X10f’/m2sec or more;
There are several editorial problems with the numerical
standards.
First, each exponent is surrounded by a
“/
/“,
both
in the Fed. Reg. and in the USEPA electronic version.
The Board
assumes this is an artifact9 of a change in word processing
systems at some point in the development of the rule,
and has
removed the characters.
The first two standards are for hydraulic conductivity,
which
is
normally
measured
in
units
of
cm/sec.
The
third
standard, however, is for synthetic or geonet drainage materials
with a transmissivity apparently expressed as “m2sec”10.
Appropriate units for transmissivity would be “m2/sec”
The Board
has proposed to use these units, but
solicits comment
as to
9An alternative possibility is that, while the
“I”
in
advance
of
the
exponent
is
an
artifact,
the
“/“
following the
exponent
is
a
part
of
the
units,
i.e.
“1
x
~
/cm/sec”.
This
would be equivalent to “1 x
1O7’ sec/cm”, which would be the
reciprocal
of
the
hydraulic
conductivity
units
indicated
in
the
first two standards.
This would clearly be wrong for the first
two standards.
t0The USEPA rule could be read as “/m2sec”.
This would,
however, be inconsistent with the reading of the
“1
I”
typographical error above, and would be incorrect units for
transmissivity.
Of 36-01482
25
whether it would be clearer
(and easier to type)
if the Board
used the equivalent
“3 cm2/sec”.11
USEPA has also amended 40 CFR
264.221(d)
(724.321(d),
which
allows for an alternative liner demonstration.
When the Board
originally
adopted this provision,
it -determined that
thiswas--an
appropriate decision for the Agency to make in the context of
RCRA permit issuance.
The Board revised the wording of the USEPA
rule to make it clear that this was to be an Agency action
pursuant to a permit application.
Most of the differences
between the USEPA and Board rule result from this.
The current
USEPA amendments modify the standard to allow an alternative
demonstration with respect to leak detection.
As discussed above in connection with Section 724.321(b),
there is a question as to whether this subsection ought to read
“alternative design and” or “alternative design or operating
practices”.
The Board has followed the USEPA amendment and
proposed “or”, but solicits comment.
The proposed amendment to Section 724.321(d)
is as follows:
Subsection
(c) will not apply if the owner or operator
demonstrates to the Agency and the Agency finds for
such surface impoundment, that alternative design and
g~operatingpractices, together with location
characteristics, will ~
fl
Will prevent the migration of any hazardous
constituent into the groundwater or surface
water at least as effectively as uuoh ~
liners and leachate collection and removal
systeme-~-specified in subsection
(C) above
and
21
Will allow detection of leaks of hazardous
constituents throuah the top liner at least
as
effectively.
USEPA
has
also
added
40
CFR
264.221(f)
(724.321(f),
pushing
the
existing
subsection
(f),
et
seq.,
down
one.
The
new
language
is as follows:
11The first part of section 264.221(c) (2) (ii) requires a
30.5 cm layer with a hydraulic conductivity of 1 x 10~
cm/sec.
This layer would have a transmissivity of 3.05 cm2/sec, or 3.05 x
iO~
iu2/sec.
This would be approximately equal to the
3 x
m2/sec standard for the geonet drainage layer in the second
portion of the rule.
0136-01483
26
(f) The owner or operator of any replacement surface
impoundment unit is exempt from paragraph
(c) of this
section if:
(1) The existing unit was constructed in compliance
With the design Standards ~of
Sections
3D04
Uo)(1)A)Ti)
and
(0)
(5) of the Resource Conservation and Recovery
Act; and
(2)
There is
no
reason
to
believe
that the liner is not
functioning as designed.
The direct reference to the RCRA Act poses an editorial
problem
in
that
it
might
be
necessary
to
handle
this
as
an
incorporation by reference at the State level.
As was discussed
in R90-2, at p.
17 and 27, the APA is unclear as to whether this
type of reference is an incorporation by reference, and as to
whether it is allowable.
Regardless,
this type of reference is
functioning
as
an
incorporation
by
reference
of
design
standards
in the federal law, and should be avoided, to maintain clarity.
The cited provisions are HSWA Act provisions which set
design standards for surface impoundments that were effective
until USEPA promulgated new design requirements.
They read as
follows:
...At a minimum, such regulations shall require
(1)
(A)
For each new landfill or surface impoundment,
.,
for which an application for a final
determination
regarding
issuance
of
a
permit
under section 3005(c)
is received after the
date of enactment of HSWA)
(1)
the installation of two or more liners
and a leachate collection system above
(in the case of a landfill) and between
such liners;
...
3004
(o)(l)(A)(i).)
(5)
(A)
The Administrator shall promulgate
regulations
or
issue
guidance
documents
implementing
...
(1) (A) within two years
after (HSWA).
(B)
Until the effective date of such regulations
or guidance documents, the requirement for
the installation of two or more liners
may be
satisfied by the installation of a top liner
designed, operated, and constructed of
materials to prevent the migration of any
constituent into such liner during the period
such facility remains in operation (including
0
27
any post-closure monitoring period), and a
lower liner designed, operated, and
constructed to prevent the migration of any
constituent through such liner during such
period.
For the purpose of the preceding
-sentence, a lower
-1--iner
shal-1
be
-deemed- to
satisfy
such
requirement
if
it
is
constructed
of at least
a 3-foot thick layer of
recompacted clay or other natural material
with
a permeability of no more than
1 x iO~
cm/eec.
(3004(0)
(5).
These requirements appear to represent Section 724.321(c)
through (e),
as they existed prior to the amendments in this
Docket.
That Section assumed its post—HSWA form in R86—1,
at 10
Ill.
Reg.
14119, effective August 12,
1986.
The Board has
proposed to reference that version of its rule,
and to add an
explanatory note.
The proposed language is as follows
724.321(f):
f)
The owner or operator of any replacement surface
impoundment unit is exempt from subsection
(c)
above if:
1)
The existing unit was constructed in
compliance with the design standards of 35
Ill. Adm. Code 724.321(c),
(d)
and (e),
as
amended in R86-l, at 10 Ill. Reg.
14119,
effective August 12,
1986; and
BOARD NOTE:
The cited subsections
implemented the design standards of
sections 3004(0) (1) (A) (i) and
(0)
(5)
of
the Resource Conservation and Recovery
Act
(42
U.S.C.
6901
et
seq.).
2)
There is no reason to believe that the liner
is not functioning as designed.
Section
724.322
Action
Leakage
Rate
This Section is derived from 40 CFR
264.222, which USEPA
adopted with the new leak detection rules.
The new USEPA section
replaces a “ghost” at the State level.
This Section governs the
“action leakage rate” for a “new”12 surface impoundment.
The
action
leakage
rate
is
the
maximum
design
flow
rate
that
the
leak
detection system
(LDS)
can remove without the fluid head on the
bottom
liner
exceeding
1
foot.
To
determine
if the action
‘2As noted above,
the Board is using “new” as a shorthand
for the types of units subject to these requirements.
0136-01485
28
leakage
rate
has
been
exceeded,
the
owner
or
operator
converts
the weekly or monthly flow rate from the monitoring data to an
average daily flow rate (gallons per acre per day) for each suinp.
Response action under the following Sections results if the
action leakage rate is exceeded.
The USEPA rule includes two decisions which are to be made
by the Regional Administrator.
A general discussion appears
above as to how the Board determines who will make these
decisions in the State program.
The Board believes that both
decisions are to be delegated.
The first decision (in 724.322(a))
is the approval of the
action leakage rate.
40 CFR 270.17(b)(5)
703.203(b)(5))
requires the operator to file a proposed action leakage rate,
with rationale,
with the permit application.
The approval of the
action leakage rate would thus come in the context of a permit
application.
This
would
be
an
engineering—type
demonstration
of
a type typically made by the Agency pursuant to a permit
application, the question being whether the leakage rate would
cause more than a one foot head on the liner, considering elope,
permeabilities,
etc.
The second decision is in 40 CFR 264222(b),
which reads as
follows:
Unless the
Regional Administrator approves
a different
calculation, the average daily flow rate for each sump
must be calculated weekly during the active life and
closure period, and if the unit is closed in accordance
with
ç 264.228(b), monthly during the post-closure care
period when monthly monitoring is required under
§
264.226(d).
Although
this
is
worded
in
terms
of
a
“different
calculation”,
it does not appear to allow a different formula to
be used.
Rather, the rule is referring to the frequency with
which the leakage rate must be recalculated and, by implication,
the period over which the daily leakage is averaged.
It is
closely linked with section 264.226(d)
724.326(d),
which
specifies monitoring frequency.
This subsection authorizes an alternative frequency, but
specifies no criteria for decision.
However, the criteria appear
to be in 40 CFR 264.226(d)(2)
724.326(d)(2):
After the final cover is installed, the amount of
liquids removed from each leak detection system sump
must be recorded at least monthly. If the liquid level
in the swap stays below the pump operating level for
two consecutive months,
the
amount
of
liquids
in
the
sumps must be recorded at least quarterly.
If the
0136-01486
29
liquid level
in the swap stays below the pump operating
level for two consecutive quarters, the amount of
liquids in the swaps must be recorded at least semi-
annually.
Although there is -a---specific-—variable
-
--frequency--rule
applicable following closure, section 264.226(d) (1)
724 .326 (d) (1)
is quite specific that weekly monitoring is
required up to the point of closure.
It thus appears that the
alternative frequency decision applies only after closure.
The Board has proposed the following language 724.322(b):
To determine if the action leakage rate has been
exceeded, the owner or operator shall convert the
weekly or monthly flow rate from the monitoring data
obtained under Section 724.326(d)
to an average daily
flow rate (gallons per acre per day) for each swap.
The average daily flow rate for each swap must be
calculated weekly during the active life and closure
period and,
if the unit is closed in accordance with
Section 724.328(b), monthly during the post—closure
care period, unless the Agency
approves
a different
frequency pursuant to Section 724.326(d).
Section 724.323
Response Actions
This new Section is derived from 40
CFR
264.223, which USEPA
adopted with the leak detection rules.
It requires the operator
of a “new” impoundment to have an approved “response action
plan”.
If the action leakage rate is exceeded, the operator must
implement the response action plan.
This entails notification,
an assessment of the leak,
a response and monthly reports.
The operator
is required to file a “response action plan”
with the Part B permit application under 40 CFR 270.17(b) (5)
703
.203 (b) (5).
The plan is reviewed and approved by the Agency
pursuant to normal permit review procedures.
This Section has some minor editorial problems.
40 CFR
264
•
223(b)
(6)
724.323(b)
(6)
includes
a
reference
to
the
“analyses”
in
subsections
(b) (3),
(4)
and
(5).
Those
rules are
all worded as directives to the operator to “determine”, for
example, the location of a leak.
USEPA refers to these rules as
“determinations” at other points.
The Board has therefore
proposed to replace “analyses” with “determinations”.
40
CFR
264.223(c)
724.323(c)
has
a
subsection
(1)
with
no
text.
This
is prohibited by the Code Division.
The Board has
inserted the word “either” at this level,
since the subsection
appears to have the form (A,
B and C) or D.
In addition, this
subsection has an “and/or”, an expression to which the Code
013601487
30
Division sometimes objects.
As used by the Code Division,
“A or
B” means “A or B or both”, the same thing as “and/or”.
The text of Section 724.323(c) proposed by the Board is as
follows:
c)
To make the leak or remediation determinations in
subsections
(b)(3),
(4)
and
(5)
above,
the
owner
or operator shall:
1)
Either:
A)
Assess
the
source
of liquids and amounts
of liquids by source;
B)
Conduct a fingerprint, hazardous
constituent or other analyses of the
liquids
in
the
LDS to identify the
source of liquids and possible location
of any leaks, and the hazard and
mobility of the liquid; and
C)
Assess the seriousness of any leaks in
terms of potential for escaping into the
environment; or
2)
Document why such assessments are not needed.
Section 724.326
Monitoring and Inspection
This Section is derived
from
40
CFR 264.226, which USEPA
amended with the leak detection rules.
The amendment adds a new
subsection
(d).
This governs monitoring and inspection of liquid
levels in swaps.
This deals with “inspection” which must be
performed and documented by the operator.
It is closely related
to Section 724.322, discussed above.
Subsection
(d) also is an
empty level.
The Board has inserted “Monitoring of LDS” as a
grouping heading.
This rule depends in part on the “pump operating level”.
The monitoring frequency is reduced to less than monthly if
liquids
remain
below
the
pump
operating
level
for
long periods of
time.
40 CFR 264.226(d) (3) provides that:
“Pump operating level” is a liquid level proposed by
the
owner
or
operator
and
approved by the Regional
Administrator based on pump activation level, suap
dimensions, and level that avoids backup into the
drainage layer and minimizes head in the swap.
The
pump
operating
level
is potentially a very important
determination,
since
monitoring
frequencies
depend
in
part
on
how
0136-01488
31
often liquids reach the pump operating level.
A high pump
operating level could lead to very infrequent monitoring.
This is a technical decision which is closely related to the
action leakage rate and response plan.
As is discussed above, 40
CFR 270
•
17(b)t5) requires a proposed action leakage-rate and
response plan in the permit application, but omits the pump
operating level.
The Board has above proposed to include it in
Section 703.203(b)(5).
With the decision placed into the normal
context of a permit application, there is no need to create a
special procedure.
The text of Section 724.326(d)
proposed by the Board is as
follows:
d)
Monitoring of LDS.
1)
An owner or operator required to have a LDS
under Section 724.321(c)
or
(d)
shall record
the amount of liquids removed from each LDS
swap at least once each week during the
active life and closure period.
2)
After the final cover is installed,
the
amount of liquids removed from each LDS swap
must be recorded at least monthly.
If the
liquid level in the swap stays below the pump
operating level for two consecutive months,
the amount of liquids in the swaps must be
recorded at least quarterly.
If the liquid
level
in the swap stays below the pump
operating level for two consecutive quarters,
the amount of liquids in the sumps must be
recorded at least semi—annually.
If at any
time during the post—closure care period the
pump operating level
is exceeded at units on
quarterly or semi—annual recording schedules,
the owner or operator shall return to monthly
recording of amounts of liquids removed from
each swap until the liquid level again stays
below the pump operating level for two
consecutive
months.
3)
“Pump operating level” is a liquid level
proposed
by
the
owner or operator pursuant to
35
Ill. Adm. Code 703.203(b) (5) and approved
by the Agency based on pump activation level,
swap dimensions and level that avoids backup
into the drainage layer and minimizes head in
the swap.
0136-01489
32
Section
724.328
Closure
and
Post—closure
Care
This Section is drawn from 40 CFR 264.228.
The amendment
adds section 264.228(b)(2)
(724.328(b)(2)), which requires the
operator to maintain and monitor the LDS during and after
c-losure.
SUBPART L:
WASTE PILES
This Subpart specifies design and operating requirements for
waste piles.
A waste pile is a type of storage unit.
A pile in
which waste is permanently placed would be a type of landfill.
These provisions were also amended with the LDS rules, at 57 Fed.
Reg.
3486, January 29,
1992.
These amendments largely repeat the
amendments to the surface impoundment rules, discussed above.
However, piles differ from surface impoundments in one major
respect:
while liquid is expected to be present on top of the
first liner in an impoundment, such liquid must be removed from
the top liner under a pile.
Moreover, USEPA has never adopted
rules implementing HSWA requirements with respect to piles.
Section 724.351
Design and Operating Requirements for Waste
Piles
This Section is drawn from 40 CFR 264.251.
Section 724.351(a)
contains the general liner requirement
for a waste pile:
a single liner which will prevent migration
through the liner during the active life of the pile.
The pile
must also have leachate collection and removal above the liner.
Section 724.351(b) allows for approval of alternate design
or operating practices.
As adopted by the Board
(in R82-19),
this allowed alternative practices only pursuant to a variance or
site—specific rulemaking.
For the reasons discussed above in
connection with Section 724.321(b), the Board is proposing to
replace these determinations with an adjusted standards
procedure.
The
text
of
the
Board’s
proposal
724.351(b)
is
as
follows:
b)
The
owner
or
operator
will
be
exempted
from
the
requirements of paragraph subsection
(a)
above if
the Board finda, bacod on a doaonGtration by the
owner or operator,
i.n a variance and/er
~
.~
4
standard Dursuant to 35 Ill. Ada. Code 106.Subpart
C.
The level of lustification is a demonstration
by the owner or operator that alternate design and
~
operating practices, together with location
characteristics, will prevent the migration of any
hazardous constituents (see Section 724.193)
into
0136-01490
33
the groundwater or surface water at any future
time.
In deciding whether to grant an exemption
adiusted
standard,
the
Board
will
consider:
1)
The
nature
and
quantity
of
the
wastes;
2)
The proposed alternate design and operation;
3)
The hydrogeologic setting of the facility,
including attenuative capacity and thickness of
the
liners
and
soils
present
between
the pile and
groundwater or surface water; and
4)
All other factors which would influence the
quality and mobility of the leachate produced and
the potential for it to migrate to groundwater or
surface water.
The USEPA amendments consist of the addition of 40 CFR
264.251(c)
—
(f)
724.351(c)
—
(f),
and
renumbering
of
existing
subsections.
The amendments are very similar to Section
724.321(c)
et seq., discussed
above.
The
leak
detection
requirements apply to new piles.’3
The requirements are keyed to
January 29 and July 29,
1992, dates, which have already passed.
However, there appears to be no retroactivity problem with the
Board keying the State rules to these same dates, since operators
are already subject to these HSWA—driven requirements as federal
law.
As was discussed above,
there were a number of editorial
problems with the numerical standards in the surface impoundment
rule.
The comparable provisions differ for waste piles,
in part
because of the fundamental difference between a pile and surface
impoundment:
while liquid is expected to exist above the top
liner in the impoundment, liquid must be removed from under the
pile.
The numerical standards for pile liners in 40 CFR
264.251(c)
724.351(c))
are as
follow:
. . .
The lower
liner
component must be constructed of
at least
3 feet
(91 cm) of compacted soil material with
a hydraulic conductivity of no more than 1X1O7 ca/sec.
(264.251(c)
(1) (B)
..The leachate collection and
removal system
immediately
above
the
top
liner
must
be
designed,
constructed, operated, and maintained to collect and
~The applicability statement is actually quite complex, and
appears
to
be
identical
to
that
for
surface impoundments, above.
As noted above, the Board is using the term “new” as a shorthand
description
of
these
units.
0136-0149~1
34
remove leachate from the waste pile during the active
life and post—closure care period. The Regional
Administrator will specify design and operating
conditions in the permit to ensure that the leachate
depth over the liner does not exceed 30 cm (one foot).
(
264 .251
(C)
(2-)
The leachate collection and removal system between the
liners, and immediately above the bottom composite
liner
in
the
case
of multiple leachate collection and
removal systems,
is also a leak detection system.
(264.251(c) (3))
The
lower LDS must be) Constructed of granular
drainage materials with a hydraulic conductivity of
1X102 cm/sec or more and a thickness of 12 inches
(30.5 cm)
or more; or constructed of synthetic or
geonet
drainage
materials
with
a
transmissivity
of
3X105 m2/sec or more:
264.251(c)(3)(ii))
There
appear
to
be
no
errors
in the numerical standards of
the type discussed above for surface impoundments.
The
3 X 10~
m2/sec transmissivity standard for the synthetic drainage
materials is equal to 0.3 ciu2/sec, corresponding with the
transmissivity of 30.5
cm
gravel
layer
with
a conductivity of 1 X
102 cm/sec.
40 CFR 264.251(d)
(724.351(d)) provides for alternative
design
or operating practices:
(d) The Regional Administrator may approve
alternative
design or operating practices to those specified in
paragraph
(c) of this section if the owner or operator
demonstrates to the Regional Administrator that such
design and operating practices, together with location
characteristics:
(1) Will prevent the migration of any hazardous
constituent into the ground water or surface water at
least as effectively as the liners and leachate
collection
and
removal
systems
specified
in
paragraph
(c) of this section; and
(2) Will allow detection of leaks of hazardous
constituents
through
the
top
liner
at
least
as
effectively.
0136-01492
35
This is quite similar to Section 724.321(d), discussed
above.14
This is a technical showing which, rather than
exempting the operator from requirements, allows alternative
methods of accomplishing the same thing.
The Agency can make
this
type
of
determination
pursuant
to
a
permit
application.
The
Board
has—worded
the
introductory---paragraph
724~35l(d)-as
follows:
The
Agency
shall approve alternative design or
operating practices to those specified in subsection
(c)
above if the owner or operator demonstrates to the
Agency, by way of permit or permit modification
application, that such design and operating practices,
together with location characteristics:
40
CFR
264.251(f)
includes
an
exemption
based
on
design
standards in the RCRA Act:
(f) The owner or operator of any replacement waste pile
unit is exempt from paragraph
(c) of this section if:
(1) The existing unit was constructed in compliance
with
the
design
standards
of
section
3004(0)
(1) (A)
(i)
and
(o) (5) of the Resource Conservation and Recovery
Act; and
(2)
There is no reason to believe that the liner is not
functioning as designed.
This is comparable to Section
724.321(f),
discussed
above.
There the Board determined that the cited Sections of RCRA
(as
amended by HSWA) had been implemented in the subsections of the
regulations which were amended.
The Board cited to the Illinois
Register publication of the repealed rules,
and added an
explanatory note.
Here,
however, the HSWA language was never
added to the regulations, since there has been no post-HSWA
amendment to this Section.15
16
The Board has therefore proposed
t4One
difference
is
that,
while
the
alternative
showing
for
a surface impoundment already exists, the language for piles is
completely new.
15The CFR carries a source note referencing 50 Fed. Req.
4514, January 31,
1985.
This was addressed in R85-22.
The cited
Fed. Reg. merely announced 0MB approval of the July 26,
1982,
USEPA amendments to this Section.
161n
view of the absence of any post-HSWA amendments,
one
might
question
whether
the
amendments
to the pile rules are HSWA-
driven.
However,
USEPA
has unambiguously stated that it regards
the new pile rules as HSWA—driven.
(57 Fed.
Reg.
3480,
column
0136-01493
36
to
add
a
paraphrase
of
the
RCRA/HSWA
provisions
in
a
Board
Note
724.351(f)
(1):
The existing unit was constructed in compliance with
the design standards of section 3004(o) (1) (A) (i) and
(0)
(5)
~f
the
Resource
Conservation
and--Recovery
Act
(42 USC 6901 et seq.); and
BOARD NOTE:
The cited provisions required the
installation of
two
or
more
liners and a leachate
collection system above
(in the case of a
landfill) and between such liners, including a top
liner designed, operated and constructed of
materials to prevent the migration of any
constituent
into
such
liner
during
the period the
facility remained in operation (including any
post-closure monitoring period), and a lower liner
to prevent the migration of any constituent
through the liner during such period.
The lower
liner was deemed to satisfy the requirement if it
was constructed of at least a 3—foot thick layer
of recompacted clay or other natural material with
a permeability of no more than 1 x l0~cm/sec.
Section 724.352
Action Leakage Rate
This Section is drawn from 40
CFR
264.252, which was adopted
with the leak detection rules.
The new Board Section replaces a
“ghost” section.
This Section governs the action leakage rate.
It is
comparable to Section 724.322, above.
The operator has to
propose
an
action
leakage rate in the permit application pursuant
to 40 CFR 270.18(c)(1)(v)
703.204(c)(1)(E).
40 CFR 264.252(b)
724.352(b))
reads as follows:
To determine if the action leakage rate has been
exceeded,
the
owner
or
operator must convert the weekly
flow
rate
from
the
monitoring
data
obtained
under
§
264.254(c), to an average daily flow rate (gallons per
acre per day) for each swap.
Unless the Regional
Administrator approves a different calculation,
the
average daily flow rate for each swap must be
calculated weekly during the active life and closure
period.
As discussed above in connection with Section 724.322(b),
the Board construes this as referring to a different
frequency
of
3.)
0136-0149k
37
calculation, rather than method of calculation.
However, with
this understanding, there are differences between this and the
comparable Section applicable to surface impoundments.
Differences appear to stem from the absence of post—closure care
rules for waste piles.17
While the other Section includes cross
references
to
post-closure
care~ru1es and--a monitoring rule
with
criteria for when the calculation frequency is to be reduced, the
Section on
piles
includes no such cross references.
Indeed, no
criteria are present in the pile rules for reducing the
frequency.18
The Board therefore suggests that the “unless”
clause is an editorial error,
and has proposed to omit it.
The
Board
solicits
comment
as
to whether this provision needs to be
included.
Coinmenters seeking inclusion should provide the
criteria on which USEPA would reduce the calculation frequency.
The language proposed by the Board 724.352(b)
is as follows:
To
determine
if
the
action
leakage
rate
has
been
exceeded,
the
owner
or operator shall convert the
weekly or monthly flow rate from the monitoring data
obtained
under
Section
724.354(c)
to
an
average
daily
flow
rate
(gallons
per
acre
per
day)
for each swap.
The average daily flow rate for each swap must be
calculated weekly during the active life and closure
period.
Section 724.353
Response Actions
This Section is derived from 40 CFR 264.253,
which
was
also
added with the leak detection rules.
The new Section replaces a
“ghost” Section.
This Section governs the response actions which the operator
must take if the action leakage rate is exceeded.
The operator
proposes a response action plan in the permit application
pursuant to 40 CFR 270.18(c)(l)(v)
(703.204(c)(1)(E).
This Section is comparable to Section 724.323
264.223
above.
There appear to be no major problems with the text.
Section 724.354
Monitoring and Inspection
17A
waste pile is a temporary repository for waste, which
will
be
removed
upon closure of the pile.
A “pile” in which
waste will remain permanently is a type of landfill.
~The
reduced
calculation frequency provisions for
impoundments
depend
on
the
pump
activation
level,
which
provisions are also missing from the waste pile provisions.
0136-01495
38
This Section is drawn from 40 CFR 264.254,
which
was
also
amended with the leak detection rules.
This Section governs
“inspection” of the unit by the operator.
The
amendment
adds
subsection
(c),
requiring
weekly
monitoring
of-swaps-:
An owner or operator required to have a LDS under
Section 724.351(c) shall record the amount of liquids
removed from each LDS swap at least once each week
during the active life and closure period.
There is no provision for monitoring following closure,
because all wastes and residues must be removed from a pile on
closure.
SUBPART N:
LANDFILLS
This Subpart specifies design and operating requirements for
landfill units at permitted facilities.
It is derived from 40
CFR 264, Subpart N, which was amended with respect to the leak
detection rules, at 57 Fed. Reg. 3486, January 29,
1992.
These
amendments are comparable to the amendments discussed above with
respect to surface impoundment and waste pile units.
Section 724.401
Design and Operating Requirements
This Section is drawn from 40 CFR 264.301.
Subsections
(c)
and
(d)
are largely replaced, a new
(f)
is added, and everything
below
is
moved
down.
Section
724.401(b)
allows for approval of alternative
practices as approved by site—specific rulemaking or variance.
The Board has replaced site-specific rulemaking with a reference
to the adjusted standards procedures,
for the reasons discussed
above in connection with Section 724.321(b).
40 CFR 264.301(c)
(724.401(c)
controls the applicability of
the new leak detection requirements.
This appears to be
identical to 40 CFR 264.221(c)
724.321(c)),
which is set out
above.
As noted there, the Board is using the term “new” as a
shorthand description for the units to which the new requirements
are applicable,
and is using “leak detection” or “LDS” to
describe the requirements, which also include liner and leachate
collection and removal requirements.
40 CFR 264.301(c) (1) (i) (B) and (c)(2)
724.40l(c)(1)(A)(ii)
and (c)(2)) include numerical standards for liner and drainage
layer hydraulic conductivity, etc.:
A composite bottom liner, consisting of at least two
components... The lower component .must be constructed
0136-01496
39
of at least
3 feet
(91 cm)
of compacted soil material
with a hydraulic conductivity of no more than 1X107
cm/sec.
264.301(c)
(1) (1) (B))
The leachate collection and removal system between the
liners,
and
iinmediatelyabove
the
bottom
compostte
liner... Constructed of granular drainage materials
with a hydraulic conductivity of 1Xl02 cm/sec or more
and a thickness of 12 inches
(30.5 cm)
or more; or
constructed of synthetic or geonet drainage materials
with a transmissivity of 3X105 m2/sec or more;
264.301(c)
(2)
The standards for conductivity and transmissivity in the
drainage layer are approximately equivalent.
These rules differ
from the surface impoundment rules in that the drainage layers
can be up to ten times less permeable,
apparently reflecting the
smaller liquid volumes expected under a landfill.
Indeed, the
standards are equal to the standards for a waste pile.
40 CFR 264.301(c) (2)
includes the following cross-reference:
The leachate collection and removal system must comply
with paragraphs
(3) (c)
(iii) and
(iv) of this section.
This is probably a reference to “(c) (3) (iii)
and (iv)”.
The
Board has proposed to cite to the equivalent “(c) (3) (C) and
(D)”,
but solicits comment.
40 CFR 264.301(d)
(724.401(d)) allows for alternative design
or operating practices.
This is similar to Section 724.321(d),
above.
When the Board adopted this provision,
it modified the
USEPA language to make it clear that this technical decision is
to be made pursuant to a permit application.
The language
proposed by the Board is as follows:
Subsection
(c) will not apply if the owner or operator
demonstrates to the Agency, and the Agency finds for
such landfill, that alternative design and ~
operating
practices, together with location characteristics, ~iill
3~j
Will prevent the migration of any hazardous
constituent into the groundwater or surface water
at least as effectively as such liners and
leachate collection and removal systems. specified
in subsection
(C)
above; and
~j
Will allow detection of leaks of hazardous
constituents through the top liner at least as
effectively.
0136-01497
40
USEPA
has
also
added
40
CFR
264.301(f)
724.401(f)),
which
includes an exemption for replacement units constructed in
compliance with section 3004(0) (1) (A) (i) and (o)(5)
of the
Resource Conservation and Recovery Act.
This poses problems
which
are similar to those discussed above with respect to
Section
724.321(f).
The
Board
has
proposed
to
handle-this,
-as
above, by referencing the repealed provisions which implemented
the cited RCRA
Act
provisions.
The
proposed language is as
follows:
f)
The
owner
or
operator
of
any
replacement
landfill
unit is exempt from subsection
(c)
above if:
1)
The
existing
unit
was
constructed
in
compliance with the design standards of 35
Ill. Adm. Code 724.401(c),
(d) and
(e), as
amended in R86—l, at
10
Ill.
Reg.
14119,
effective August 12,
1986; and
BOARD NOTE:
The cited subsections
implemented the design standards of
sections 3004(o) (1) (A) (i) and (o)(5)
of
the Resource Conservation and Recovery
Act
(42
U.S.C.
6901
et
seq.).
2)
There
is
no
reason
to
believe
that
the
liner
is
not
functioning
as
designed.
Existing Sections 724.401(f)
-
(j) are promoted to
(g)
—
(k).
40 CFR 264.301(1)
is a site—specific rule applicable only
in
Alabama,
and
does
not
appear
in the Illinois rules.
Section 724.402
Action Leakage Rate
This
Section
is
drawn
from
40
CFR
264.302,
which
was
adopted
with the leak detection rules.
At the State
level,
the
new
language replaces a “ghost” Section.
It specifies the “action
leakage rate”, which triggers response actions under the ensuing
Sections.
It is similar to Section 724.322, above.
40
CFR
264.302(a)
724.402(a)
has an apparent editorial
error, which the Board has proposed to correct.
The USEPA
Section
should
apply
to
“landfill
units”,
rather
than
“surface
impoundments”.
40
CFR
264.302
(724.402) includes two decisions, which are
similar to those discussed above (in Section 724.322).
The
Regional Administrator approves the action leakage rate, and may
approve an alternative “calculation” of the rate.
The former is
clearly a part of the permit application under 40 CFR
270.21(b)(l)(v)
703.207(b)(1)(E)).
The latter is a subsidiary
0136-01498
41
demonstration
which
is
really
addressing
the frequency of
calculation,
rather
than
the
formula
for
the
calculation.
The
standard for the alternative frequency is in 40 CFR
264.303(c)
(2)
724.403(c)
(2)), below.
As is the case with the surface
impoundment rule, the alternative frequency is available only
following closure.
The
Board
has--proposed
.the---following
724.402(b)):
To determine
if
the
action
leakage
rate
has
been
exceeded,
the
owner
or
operator shall convert
the
weekly or monthly flow rate from the monitoring data
obtained under Section 724.403(c)
to an average daily
flow rate (gallons per acre per day) for each swap.
The average daily flow rate for each swap must be
calculated weekly during the active life and closure
period, and monthly during the post—closure care
period, unless the Agency approves a different
frequency pursuant to Section 724.403(c) (2).
Section 724.403
Monitoring and Inspection’9
This Section is drawn from 40
CFR
264.303.
USEPA has added
a subsection
(C)
with the leak detection rules.
This provision
is comparable to 40 CFR 264.226(d)
(724.326(d)), discussed above
in connection with surface impoundments.20
As is discussed in connection with the surface impoundments,
this
Section
depends
in part on the “pump operating level”, which
the
Regional Administrator is to approve pursuant to 40
CFR
264.403(d)(3).
This determination is similar to the action
leakage rate and response plan determinations discussed above and
below.
In Section 703
•
207
(b) (1) (E), above,
the
Board has added a
component to the Part B application addressing the pump operating
level, alongside the action leakage rate and response plan.
This
brings the determination clearly into the permit application
process, avoiding any need for specialized procedures.
The pwap
operating
level
language
is
as
follows
724.403(c)
(3):
“Pump operating level” is a liquid level proposed by
the owner or operator pursuant to 35 Ill. Adm. Code
703.207(b)
(1) (E) and approved by the Agency based on
pump
activation
level,
swap
dimensions
and
level
that
avoids backup into the drainage layer and minimizes
head in the swap.
19This Section deals with “inspection” which is to be
performed by the operator.
~The order of the rules is different as between the surface
impoundment and landfill rules.
0136-01499
42
Section
724.404
Response
Actions
This new Section is drawn from 40 CFR 264.304, which was
added with the leak detection rules.
It
governs
the
response
actions the operator must take if the action leakage rate is
exceeded.
This
section~is~comparab1e
to
Section
724.32-3-j
discussed above in connection with surface impoundments.
The operator is required to file a “response action plan”
with the permit application pursuant to Section 703.207(b) (1) (E).
The Agency approves the plan pursuant to normal permit approval
procedures.
This Section governs the contents of the plan.
40 CFR
264.304
has
three
minor
editorial
problems which are
identical
to
those
discussed above in connection with Section
724.323
(“analyses”,
“and/or” and “either”).
Section 724.410
Closure and Post—closure Care
This
Section
is
drawn
from
40
CFR
264.310, which was amended
with the leak detection rules.
The amendments add a new
subsection
(b)(3)
724.410(b)(3)),
which requires the operator to
maintain and monitor the LDS during the post—closure care period.
Existing
subsections
(b) (3)
-
(5)
are
then
renumbered.
SUBPART W:
DRIP PADS
This Subpart governs “drip pads”, a type of hazardous waste
management unit on which wood products are stored following
application2’ of wood preservatives.
Drip pads were a major
topic in R91-1 and R9l-26.
USEPA has amended the rules at 57
Fed.
Reg.
5861,
February
18,
1992.
Section
724.673
Design
and
Operating
Requirements
This Section was drawn from 40
CFR
264.573.
It
governs
design and operating requirements for drip pads at permitted
facilities.
USEPA
has
amended this Section “by revising
paragraph (a)(4)
to read as follows:”
(Drip
pads
must:...)
Be impermeable, e.g., concrete pads must be sealed,
coated, or covered with an impermeable material such
that the entire surface where drippage occurs or may
run
across
is
capable
of containing such drippage and
211n
other
words,
following
“treatment”
of
wood
to
produce
“treated
wood”.
However,
“treatment”
and
“treated”
are
important
terms
within
the
hazardous
waste rules and have a very different
meaning.
0136-0500
43
mixtures of drippage and precipitation, materials,
or
other
wastes
while
being
routed
to
an
associated
collection system.
Note:
The requirement that existing drip pads be
-impermeable,
e.g.-, that drip pads be—-sealed,-coated, or
covered, with an impermeable material is
administratively stayed.
The stay will remain in
effect
until
October
30,
1992.
The drip pad administrative stays have a complex history,
which may be relevant to the current stay.
USEPA adopted the
drip pad rules on December 6,
1990, and published a stay on June
13,
1991.
This was coupled with a stay of the related F034 and
F035
listings in 40 CFR 261.31.
USEPA also corrected the rules
on July 1,
1991.
The Board addressed all of these when it
adopted Section 724.673 in R91-1.
The stay situation is complicated by the HSWA status of
different provisions.
As discussed above, USEPA amendments which
are
required
by
the HSWA amendments to the RCRA
Act
become
effective immediately in authorized states, including Illinois.
The F032 listing of chlorophenolic preservatives was HSWA—driven.
On the other hand, the F034 and F035 listings were not HSWA-
driven, and hence,
from the USEPA perspective, would not become
effective
in
states
until
authorized.
However, Sections 7.2
and
22.4(a)
of the Act required Illinois to adopt these rules on a
“fast—track”, regardless of HSWA status and USEPA’s authorization
schedule.
Thus, USEPA had to write different stays for the HSWA
and non—HSWA portions, and was operating with an incorrect
perspective as to the effect of its actions in Illinois.
(See
Opinions in R91—1 and R9l—26.)
The Board adopted the USEPA stays of the F032,
F034 and F035
listings, and of the coating requirement of Section 724.673 in
R91—l.
However, the Board extended some of the notification
dates for the non—HSWA portions of the rules, so as to give
persons in Illinois more time to take actions to qualify for the
stay.
Following the adoption of R91-l, the Board received calls
from wood preservers who stated that they were unable to meet the
specified dates for application of coatings because of the onset
of
winter,
and
that they had been misled by statements at the
national level that they would not have to comply with the non-
HSWA portions of the rule in authorized states.
The Board opened
R91-26 to further extend the dates associated with the stays for
the non-HSWA listings F034 and F035.
R9l-26 was adopted just
prior to the latest USEPA stay.
0136-0501
44
The
R9l-1
stay
of
the
impermeable
coating
requirement
of
Section
724.673
264.573
was embodied in a note following
subsection
(a)
(4).
As
worded
by
USEPA,
it
read:
Note:
The
requirement
that
new
drip pads be
impermeable, e.g.,
that—new
drip
pads be sealed,
coated,
or
covered
with
an
impermeable
material,
is
administratively stayed.
The stay will remain in
effect until further administrative action is taken.
40
CFR
264.573(a) (4),
56 Fed.
Reg. 27336, June 13,
1991.)
As was discussed in R91-1, at p.
14, USEPA omitted the note
from the corrections which appeared two weeks later
(56 Fed. Reg.
30192, July
1,
1991).
The Board construed this as an error by
USEPA, and retained the note in the rules as adopted.
The note
does
not
appear
in the 1991 Edition of the CFR (which,
anachronistically, included the July
1 corrections).
The newest USEPA stay makes no mention of the June 13,
1991,
stay.
It differs in that it applies to “existing”,
rather than
“new” pads, and it terminates on a date certain (October 30,
1992).
The
Board
is
uncertain
as
to whether the June 13 stay is
still
in
existence.22
For
purposes
of
requesting
comment,
the
Board suggests that the June 13 stay is extant, but solicits
comment.
The stay proposed by
the
Board is as follows:
BOARD NOTE:
The requirement that new drip pads be
impermeable, e.g.,
that new drip pads be sealed, coated
or covered with an impermeable material,
is
administratively stayed.
The stay will remain in
effect until further administrative action is taken.
The requirement that existing drip pads be impermeable,
e.g..
that
drip
cads
be
sealed,
coated
or
covered
with
an impermeable material,
is administratively staved.
The
stay
will
remain
in
effect
until
October
30.
1992.
Finally, there is a question as to whether the Board ought
to
adopt
a stay which terminates on October 30,
1992,
a date
which will pass prior to Board action on this proposal.
The
Board has proposed to do so, so as to provide a defense for any
operators who may have failed to coat pads
in reliance on the
USEPA stay.
~USEPA may have intended to repeal the June 13 stay with
the
July
1
corrections.
Or,
the
Board
may
have missed an
intervening USEPA action removing the stay.
Or, the newest stay
may have replaced the prior stay.
0136-0502
45
PART 725:
INTERIM STATUS STANDARDS
This
Part
is
drawn
from
40
CFR
265,
which
was
amended
mainly
in connection with the leak detection rules for certain new
units.~
This
Part contains the design and operating
requirements
for
hazardous
waSte
management
faoilities
with
“interim
status”,
i.e.,
those
who have filed a Part A permit
application under 40 CFR 270 703,
but who have not received a
permit.
The Part 265
725
rules are nearly identical to the Part
264
724
rules,
above, which apply to permitted facilities.
One
difference is that the interim status rules often need special
decision—making procedures to be used in the absence of a permit
system.
The
new
leak
detection
rules
apply
to
“new”
units.
Interim
status facilities are generally prohibited from building new
units
under
35 Ill.
Adm. Code 703.155.
There are, however,
numerous exceptions, including units added to comply with
enforcement orders.
It is therefore possible that an interim
status
facility
could
be
required
to
build
a
new
unit outside the
permit system.
SUBPART B:
GENERAL FACILITY STANDARDS
This Subpart contains general rules governing all types of
hazardous
waste
facilities.
Section 725.113
General Waste Analysis
This Section is drawn from 40 CFR 265.13, which was amended
at 57 Fed. Reg.
8088, March
6,
1992,
in connection with the
“third third” corrections.
This involves minor changes in
wording to Section 725.113(a) (1):
Before an owner or operator treats,
stores or disposes
of any hazardous waste~,or non—hazardous vaste~if
applicable under Section 725.213(d),
the owner or
operator shall obtain a detailed chemical and physical
analysis of a representative sample of the wastes.
At
a minimum, thic the analysis must contain all the
information which must be known to treat, store or
~As noted above,
in this opinion, the Board
is using “leak
detection” or “LDS” as a shorthand for rules which also include
new liner and leachate collection requirements.
The Board is
also
using
“new”
to describe the applicability of the new
requirements, which is actually quite complex.
See Section
724.321,
above,
for the applicability.
0136-0503
46
dispose
of
the
waste
in
accordance
with
~e
requircmcnto
of
this
Part
and
35
Ill.
Ada.
Code
728.
Section 725.115
General Inspection Requirements
This
-Section
is
drawn
from
4-O-CFR -265-.15,
wh-ich—was---amended
at 57 Fed.
Reg.
3486, in connection with the leak detection
requirements.
The Section governs “inspection” of the facility
to be performed by the operator.
The amendments mainly add, to
subsection
(b)(4), cross—references to the new rules discussed
below:
The frequency of inspection may vary for the items on
the schedule.
However,
it should be based on the rate
of poar~ibledeterioration of the equipment and the
probability
of
an
environmental
or
human
health
incident if the deterioration or malfunction or any
operator error goes undetected between inspections.
Areas
subject
to
spills,
such
as
loading
and
unloading
areas,
must
be
inspected
daily
when
in
use.
At
a
minimum, the inspection schedule must include the items
and
frequencies
called
for
in Sections 725.274,
725.293,
725.295,
725.326,
725.360.
725.378.
725.404,
725.447,
725.477,
725.503,
725.933,
725.952,
725.953
and 725.958. where a~~licable.
Section 725.119
Construction Quality Assurance
CQA)
Program
This new Section is derived from 40 CFR 265.19, which was
adopted with the LDS rules.
It is similar to Section 724.119,
above,
except for problems caused by the absence of a procedural
context for decisions.
40 CFR 265.19 includes several references to design and
operating rules contained in 40 CFR 264 724.
The Board has
generally
proposed
to
follow
these
citations,
which
appear
to
reference
provisions
not
repeated
in
the interim status rules.
40
CFR
265.19(a)
includes the following sentence:
The
(CQA
program
must
ensure
that
the
constructed
unit
meets
or
exceeds
all
design
criteria
and
specifications
in the permit.
This appears to be an editorial error in that interim
status
units will not have permits.
The Board has proposed to cite to
the Part, with the understanding that some of the criteria and
specifications are actually referenced in from Part 724
(264).
The proposed language 725.119(a)
is:
0136-05014
47
The
CQA
program must ensure that the constructed unit
meets or exceeds all design criteria and specifications
in this Part.
The
introductory sentence to 40
CFR
265.19(b)
(725.119(b)
is quite a bit different from the comparable language in
264.19(b)
(724.119(b):
Before
construction
begins
on a unit subject to the CQA
program
under
paragraph
(a)
of this section, the owner
or operator must develop a written CQA plan.
For a permitted facility, the operator is required to
“develop and implement” the plan, with an unstated understanding
that this is to be prior to construction.
The Board has proposed
to follow the USEPA language in this Section on this.
The new
language
may
be
setting
up
the
differences
between
the
permit
and
interim status rules, which become more pronounced below.
40 CFR 265.19(c)(2)
725.119(c)(2)
requires test fills for
compacted soil liners to confirm conductivity predictions.
As
discussed above with respect to Section 724.119(c) (2), this
provision
contains
two
“and’s”
which
ought
to
be
“or’s”.
40 CFR 265.19(c)(2)
(725.119(c)(2)) also contains the first
decision point in the rule.
This is comparable to 40 CFR
264.19(c)(2)
724.119(c)(2))
discussed above.
However, while for
a permitted facility the Regional Administrator “may accept” an
alternative demonstration of conductivity, the interim status
provision is worded as a self-implementing waiver:
The test fill requirement is ‘waived where data are
sufficient to show that a constructed soil liner meets
the hydraulic conductivity requirements of part
264
in the field.
40
CFR 265.19(c) (2).
The Board has proposed to leave this as a self-implementing
waiver.
In other words,
the operator alone decides whether data
are “sufficient” to dispense with the test fill.
However, he
does so at the risk that the Agency might disagree and initiate
enforcement at a later date.
The alternative, which the Board is
not following, would be to create a prior approval mechanism.
The
Board
solicits comment.
The
major
differences
between
the
permit
and interim status
rules lie in 40 CFR 265.19(d)
(725.119(d)).
For
the
permitted
facility, the CQA officer merely delivers a certification to the
Agency, initiating procedures for initial inspection of new units
under the permit program.
For the interim status unit,
a similar
procedure is created within the rule (265.19(d)):
0t360505
48
Certification. The owner or operator of units subject
to
§ 265.19 must submit to the Regional Administrator
by certified mail or hand delivery, at least 30 days
prior
to
receiving
waste,
a
certification
signed
by
the
CQA
officer that the CQA plan has been successfully
carried
~
that the unit meets the requirementS Of
§~ 265.221(a),
265.254,
or
265.301(a).
The
owner
or
operator may receive waste in the unit after 30 days
from the Regional Administrator’s receipt of the CQA
certification unless the Regional Administrator
determines in writing that the construction is not
acceptable, or extends the review period for a maximum
of 30 more days,
or seeks additional information from
the owner or operator during this period. Documentation
supporting the CQA officer’s certification must be
furnished to the Regional Administrator upon request.
This clearly sets up a permit-type action which needs to be
subject
to
an
appeal
to
the
Board.
The
Board has proposed the
following 725.119(d)
and
(e):
ci)
Certification.
The owner or operator of units
subject to this Section must submit to the Agency
by certified mail or hand delivery, at least 30
days
prior
to
receiving
waste,
a
certification
signed by the CQA officer that the CQA plan has
been successfully carried out and that the unit
meets the requirements of Sections 725.321(a),
725.354 or 725.401(a).
The owner or operator may
receive waste in the unit after 30 days from the
Agency’s receipt of the CQA certification unless
the
Agency
determines
in
writing
that
the
construction is not acceptable,
or extends the
review period for
a maximum of 30 more days,
or
seeks additional information from the owner or
operator during this period.
Documentation
supporting the CQA officer’s certification must be
furnished to the Agency upon request.
e)
Final Agency determinations pursuant to this
Section
are
deemed
to
be
permit
denials
for
purposes of appeal to the Board pursuant to
Section 40 of the Environmental Protection Act.
The above subsection includes a “may”, which the Board has
left alone.
If the Agency fails to respond, the operator has an
option as to whether to receive waste or not.
0136-0506
49
SUBPART E:
MANIFEST
SYSTEM,
RECORDKEEPING
AND
REPORTING
Section 725.173
Operating Record
This Section is drawn from 40
CFR
265.73, which was amended
with
the
LDS
rules
The
amendments-to
Section -7~-a5.l7-3-(b)(6) --add
cross
references
to
the
new
rules
discussed
below,
requiring
the
recording of data required there.
As is discussed above in
Section 724.173, this Section has two “and’s” which need to be
“or’s”, since some of the referenced Sections are mutually
exclusive.
The proposed text of Section 725.173(b) (6)
is as
follows:
Monitoring, testing or analytical data and corrective
action data where required by Subpart F or Sections
725.190,
725.194,
725.291,
725.293,
725.295,
725.322.
725.323. 725.326, 725.355, 725.359. 725.360, 725.376,
725.378,
725.380(d) (1),
725.402
through 725.404.
725.447,
725.477,
725.934(c)
through
(f),
725.935,
725.963(d)
through
(i) eR4 ~
725.964;
SUBPART
K:
SURFACE
IMPOUNDMENTS
This Subpart sets design and operating requirements for
interim status surface impoundment units.
It has been modified
by
the
LDS
rules
at
57
Fed.
Reg.
3486,
January
29,
1992.
Section 725.321
Design and Operating Requirements
This Section is drawn from 40
CFR
265.221,
which
was
amended
with the LDS rules.
It contains design requirements for surface
impoundments.
This Section is closely related to 40 CFR 264.221
724.321),
which indeed is referenced.
The amendments add a new subsection
(a), which serves as the
basic statement of what types of units are subject to the LDS
requirements, and as to what the requirements are.
As proposed
by
the
Board,
Section
725.321(a)
reads:
The owner or operator of each new surface impoundment
unit
on
which
construction
commences
after
January
29,
1992, each lateral expansion of a surface impoundment
unit on which construction commences after July 29,
1992, and each replacement of an existing surface
impoundment unit that is to commence reuse after July
29,
1992,
shall install two or more liners and a
leachate collection and removal system between such
liners, and operate the leachate collection and removal
system,
in accordance with 35 Ill. Ada. Code
724.321(c),
unless exempted under 35 Ill. Ada. Code
724.321(d),
(e) or (f).
“Construction commences”
is as
0136-0507
50
defined in 35 Ill. Ada. Code 720.110 under “existing
facility.”
These dates have already passed.
As discussed above, there
appears to be no retroactivity problem with adopting these dates
for HSWA—driven requirements which are- -already--applicable -as
federal law.
Existing 40 CFR 265.221(c) contains the alternative design
and operating practices demonstration which is discussed above in
connection with Section 724.321(d).
This has apparently been
repealed and replaced with new language which is unrelated to the
alternative demonstration.
The Board has proposed to repeal this
language, but solicits comment as to whether this might be an
editorial
error
by
USEPA.
On
the one hand,
it is possible that
USEPA intended to instead replace subsection
(b)24, which
contains a notification requirement which may be in conflict with
the new language in 40 CFR 265.19(d)
725.119(d)
above.
On the
other hand,
it is possible that USEPA has determined that the
alternative should be available for permitted units only.
If
USEPA intended to retain the language,
it has failed to make
amendments which would be necessary to accommodate the LDS rules.
The new language of 40
CFR
265.221(c)
(725.321(c)
concerns
the exemption for surface impoundments which were designed to
meet standards set out in the RCRA Act, and which are not
leaking.
This was discussed above in connection with Section
724.321(f),
in which the Board proposed to reference the
regulatory
version
of
the
RCRA
standards,
rather
than
the
statute
itself.
The Board has proposed to follow the same course here.
However,
in that the interim status rules were apparently never
amended to reflect the statutory requirements, the Board has
proposed to cite Part 724
264)
version.
The proposed text of
Section 725.321(c)
is as follows:
The owner or operator of any replacement surface
impoundment unit is exempt from subsection
(a) above
if:
1)
The existing unit was constructed in
compliance
with
the
design
standards
of
35
Ill. Ada. Code 724.321(c),
(d) and
(e), as
amended in R86-l, at 10 Ill. Reg. 14119,
effective August 12,
1986; and
BOARD NOTE:
The cited subsections
implemented the design standards of
sections
3004(o)(1)(A)(i)
and
(o)(5)
of
24This notice requirement
is, however, back—referenced in 40
CFR
265.222(a).
0136-0508
51
the
Resource
Conservation
and
Recovery
Act
(42
U.S.C.
6901
et
seq.).
2)
There is no reason to believe that the liner
is
not
functioning
as
designed.
The Board has proposed minor editorial revisions to existing
Section 725.321(d),
as follows:
The doubic liner rcquircmcnt Aaencv shall not recruire a
double liner as set forth in subsection
(a) may be
waived by the Agency for any monofill,
if:...
Pursuant to bullet
6 in the Fed. Reg.,
Sections 725.322 (a)
and
(b) have been moved to become Sections 725
•
321(f)
and
(g).
This has to be shown as a repeal and new adoption of the language
under the Administrative Code.
A cross reference in former
Section 725.322(a)
265.222(a)
has to be changed from
“subsection
(b)” to “subsection (g)” to correspond with the new
numbering.
The
existing
Board
rule
has
a
subsection
which
is
not
present in the CFR.
Section 725.321(f)
authorizes appeal of the
Agency
determinations
under
this
Section.
It
will
be
renumbered
to 725.321(h).
Although one Agency determination is repealed
above,
others
remain.
Section
725.322
Action Leakage Rate
This Section is drawn from 40 CFR 265.222.
As discussed
above,
USEPA
has moved the existing text to the preceding
Section, and adopted new language in connection with the LDS
rules.
This Section now specifies the action leakage rate, the
amount of liquid in the LDS which triggers a response action.
It
is similar to Section 724.322 above, except for the complexities
introduced by the absence of a permit system.
40 CFR 265.222 (a)
(725.322 (a)) sets up an approval procedure
for
interim
status
leakage
rates:
The owner or operator of surface impoundment units
subject to
S 265.221(a) must submit a proposed action
leakage rate to the Regional Administrator when
submitting the notice required under ~ 265.221(b).
Within 60 days of receipt of the notification, the
Regional Administrator will: Establish an action
leakage rate, either as proposed by the owner or
operator or modified using the criteria in this
section; or extend the review period for up to 30 days.
If
no
action
is taken by the Regional Administrator
before the original 60 or extended 90 day review
0 136-0509
52
periods, the action leakage rate will be approved as
proposed by the owner or operator.
Section 725.322(a)
follows this language
closely,
subject
to
the appeal language in Section 725.322(d).
40 CFR 265.222(b)
725.322(b))
contains the standard for the
action leakage rate determination.
This is very similar to
Section 724.322(a)25 above.
40
CFR
265.222(c)
725.322(c)
specifies the method by which
the
leakage
rate
is
calculated.
This
includes
an
alternative
“calculation”, which suffers from the same problems as discussed
above
in
Section
724.322(b):
the alternative applies to the
frequency of calculation, and relates only to the post—closure
care period.
The language proposed by the Board is as follows
725.322(c):
To determine if the action leakage rate has been
exceeded, the owner or operator shall convert the
weekly or monthly flow rate from the monitoring data
obtained under Section 725.326(b)
to an average daily
flow rate (gallons per acre per day) for each sump.
The average daily flow rate for each sump must be
calculated
weekly
during
the
active
life
and
closure
period and,
if the unit is closed in accordance with
Section 725.328(a) (2), monthly during the post—closure
care
period,
unless
the
Agency
approves
a
different
frequency pursuant to Section 725.326(b).
The
Board
has proposed to add language allowing appeals of
Agency
determinations
under
this
Section
725.322(d):
Final Agency determinations pursuant to this Section
are
deemed
to
be
permit
denials for purposes of appeal
to the Board pursuant to Section 40 of the
Environmental Protection Act.
Section 725.323
Response Actions
This Section is drawn from 40 CFR 265.223.
There is a
fundamental ambiguity in the USEPA action on this Section, at 57
Fed. Reg. 3486, January 29,
1992, with the LDS rules.
Bullet
7
in the Fed.
Reg. instructs that Section 265.223 “is added”.
However, there is an existing, unrelated 40 CFR 265.223.
The
Board
suggests
that
USEPA
intended
to
insert
the
new
Section
into
25The standard gets pushed down in the rule because of the
greater complexity of the procedures for the interim status unit,
even at the federal level.
0136-0510
53
the “reserved” Section 265.224, and to retain the existing
Section
265.223.
The Board could correct this apparent error in two ways:
the Board could either use the reserved number for the new
Section, or move the existing Section over-to the new-number.
The Board has proposed to follow the latter course.
The pre-
existing text
(a three—line Section) will appear below, as
Section 725.324.
This alternative avoids the necessity of
correcting numerous cross—references into this Section, and will
probably conform with the numbering to be used in the 1992 CFR
Edition.
The new text deals with response actions which are required
if
the action leakage rate is exceeded.
It is similar to Section
724.323, above, except for the complexities introduced in the
absence of a permit system.
40 CFR 265.223(a)
725.323(a)
requires that the operator
submit a response action plan with the proposed action leakage
rate under the preceding Section.
That portion of the procedure
thus appears to be subsumed within that Section.
However, this
Section also has decision points following notification of any
exceedence.
These potentially could be the subject of an appeal
to
the
Board.
The Board has therefore proposed to add Section
725.223(d),
authorizing appeals.
40 CFR 265.223(c)
(725.323(c)) has three minor editorial
problems, which are the same as those discussed above for
264.223:
“analyses”,
“and/or”
and
“either”.
The
complete
text
of
Section
725.323 as proposed by the
Board is as follows:
a)
The owner or operator of surface impoundment units
subject to Section 725.321(a)
shall submit a
response action plan to the Agency when submitting
the proposed action leakage rate under Section
725.322.
The response action plan must set forth
the actions to be taken if the action leakage rate
has been exceeded.
At a minimum, the response
action plan must describe the actions specified in
subsection
(b)
below.
b)
If
the
flow
rate
into
the
LDS exceeds the action
leakage rate for any suap, the owner or operator
shall:
1)
Notify the Agency in writing of the
exceedence within
7 days of the
determination;
0136-0511
54
2)
Submit a preliminary written assessment to
the Agency within 14 days of the
determination,
as to the amount of liquids,
likely sources of liquids, possible location,
size and cause of any leaks, and short—term
actions taken and planned;
3)
Determine to the extent practicable the
location, size and cause of any leak;
4)
Determine whether waste receipt should cease
or be curtailed, whether any waste should be
removed from the unit for inspection,
repairs
or controls, and whether or not the unit
should be closed;
5)
Determine any other short—term and longer-
term actions to be taken to mitigate or stop
any leaks; and
6)
Within 30 days after the notification that
the action leakage rate has been exceeded,
submit to the Agency the results of the
determinations specified in subsections
(b) (3),
(4) and
(5)
above, the results of
actions taken, and actions planned.
Monthly
thereafter,
as long as the flow rate in the
LDS exceeds the action leakage rate, the
owner or operator shall submit to the Agency
a report summarizing the results of any
remedial actions taken and actions planned.
C)
To
make
the
leak
or
remediation
determinations
in
subsections
(b) (3),
(4) and
(5) above, the owner
or operator shall:
1)
Either:
A)
Assess the source of liquids and amounts
of
liquids
by
source;
B)
Conduct a fingerprint, hazardous
constituent or other analyses of the
liquids in the LDS to identify the
source of liquids and possible location
of any leaks, and the hazard and
mobility of the liquid; and
C)
Assess the seriousness of any leaks in
terms of potential for escaping into the
environment; or
0 136-05 12
55
2)
Document why such assessments are not needed.
d)
Final Agency determinations pursuant to this
Section are deemed to be permit denials for
purposes of appeal to the Board pursuant to
Section~-~~-4O
of the
Environmental--Protection-A-ct.
Section 725.324
Containment System
As discussed above, USEPA appears to have inadvertently
repealed the text of 40 CFR 265.223.
The Board has proposed to
retain the text under this new Section number, but
solicits
comment.
Section 725.326
Monitoring and Inspection
This Section is drawn from 40 CFR 265.226, which was amended
in connection with the LDS.
It deals with monitoring and
inspection to be performed by the operator.
This Section is
comparable to Section 724.326 above.
The prior federal Section violated Code Division subsection
lettering requirements, requiring rearrangement when this Section
was adopted in 1982.
The amendment accidently brings the USEPA
text
into
compliance,
so that the Board can rearrange its Section
to conform with the USEPA language.
The USEPA amendments add subsections
(b) (1)
—
(3).
The
Board
has
added
a
grouping
heading
to
comply
with
Code
Division
requirements.
This Section includes the pump operating level
determination,
which
winds
up
being
a
quasi-permit
action
in
this
Part.
The operator is required to file a proposed pump operating
level with the proposed action leakage rate in Section 265.222(a)
725.322(a)
above.
Arguably the procedures specified above
would suffice.
However, the Board has added procedural language
here as Section 725.326(c).
Section 725.328
Closure and Post—closure Care
This Section is drawn from 40
CFR
265.228.
Subsection
(b) (2)
was
added
with the LDS rules,
to require maintenance and
monitoring of the LDS
after
closure.
As proposed by the Board,
Section 725.328(b) (2) reads:
Maintain and monitor the LDS in accordance with 35 Ill.
Ada.
Code
724.321(c) (2) (D)
and
(c)(3)
and
725.326(b)
and comply with all other applicable LDS requirements
of this Part;
0136-0513
56
The
USEPA
amendment includes a typographical error which the
Board has proposed to fix.
40 CFR 265.228(b)(2)
725.328(b)(2)
references Section “265.221(c) (2) (iv) and
(c) (3)”.
However, no
such
Sections
exist.
USEPA
apparently intended to reference to
the design standards ~inPart 264 724,
which are referenced into
Part 265
725-)
.-
The comparable USEPA landfiLL
rule
-discussed
below as Section 725.410(b) (2) contains the correct citation,
which
the
Board
is
proposing
to
follow.
SUBPART L:
WASTE PILES
This
Subpart
governs design and operating requirements for
interim status waste piles.
USEPA amended these rules in
connection with the leak detection system
(LDS)
rules at 57 Fed.
Reg.
3486,
January 29,
1992.
These rules are comparable to the
rules for permitted waste piles in Section 724.351, et seq.,
above, and to the rules for interim status surface impoundments
immediately above.
The rules differ from the Part 724
rules
in
that a procedural context for decisions generally needs to be
created in the absence of a formal permit system.
The rules
differ from the surface impoundment (and landfill)
rules in that
piles are storage units from which wastes will be removed on
closure.26
Section
725.354
Design
and
Operating
Requirements
This Section is drawn from 40 CFR 265.254, which was
completely
revised
with the LDS rules.
This contains the
statement of applicability to “new” piles, and references the
design standards of Section 724.351, above.
The applicability is
identical to that stated above with respect to surface
impoundments.
40 CFR 265.255
725.355,
discussed below,
references “the
notice required under” this Section.
However, the notice
requirement appears to have been omitted from the Federal
Register
265.254.
The Board has proposed the following
language,
which
is
drawn
from 40 CFR 265.221(b)
725.321(b),
the
comparable language for interim status surface impoundments
discussed above:
The owner or operator of each unit referred to in this
Section
shall
notify
the
Agency
at
least
sixty
days
prior
to
receiving
waste.
The
owner
or
operator of each
facility
submitting
notice shall file a Part B
application
within
six
months
of
the
receipt
of
such
notice.
26A
“pile”
in
which
waste is to remain after closure is a
type of landfill.
0136-05R
57
This has been added as sentences to this Section, which
lacks
a
subsection structure.
When
USEPA
corrects
this,
it
will
probably make this into a subsection
(b).
The Board has not done
so at this time,
to preserve correspondence with the current
USEPA subsection lettering.
Section 725.355
Action Leakage Rates
This Section
is
drawn
from
40
CFR
265.255,
which
was
added
with the LDS rules.
This Section governs the action leakage
rate, the amount of liquid in the LDS
which
triggers
a
response
below.
It
is
comparable to Section 724.352
for permitted
piles,
and to 725.322 for interim status surface impoundments, above.
The operator proposes an action leakage rate, which is
subject to approval
(or default approval) as discussed above for
Section
725.322.
The Board has added Section 725.355(d) to
establish an appeal mechanism.
40 CFR
265.255(c)
(725.355(c)
includes a reference to
approval
of
a
“different
calculation”
of
the leakage rate.
This
raises issues similar to those discussed above with respect to
Section 724.352. The rule
is actually referring to the frequency,
rather than the method of calculation.
However, the standards
for the alternative frequency appear to be absent from the waste
pile rules, which lack post—closure care provisions.
For the
reasons discussed above, the Board suggests that the inclusion of
the “different calculation” language is an editorial error.
The
Board has proposed to omit this clause, but
solicits comment.
Section 725.359
Response Actions
This new Section is drawn from 40 CFR 265.259, which was
added with the LDS rules.
This specifies the response actions
which must be taken if the action leakage rate is exceeded.
This
Section is comparable to Section 724.353 for permitted piles,
and
to 725.323 for interim status surface impoundments.
The language
is very similar to Section 725.323.
There appear to be no major
problems with the text (other than the “analyses”,
“either” and
“and/or” discussed above).
The Board has added a subsection
(d)
to authorize appeals of Agency determinations.
Section 725.360
Monitoring and Inspection
This new Section is drawn from 40 CFR 265.260, which was
added with the LDS
rules.
It
reads
as
follows:
An owner or operator required to have a LDS
under
Section 725.354 shall record the amount of liquids
removed from each LDS sump at least once each week
during the active life and closure period.
0136-0515
58
SUBPART N:
LANDFILLS
This Subpart governs interim status landfill units.
It was
also amended mainly with the LDS rules at 57 Fed. Reg.
3486,
January 29,
1992.
The amendments to this Subpart are similar to
the amendments
for
permitted
landfills
in
Sectiozr724.401et
seq., above,
and for interim status surface impoundments Section
725.321 et seq., above.
Section 725.401
Design and Operating Requirements
This Section was amended both with the LDS rules, and with
the “third third” corrections.
This Section contains the design
and operating requirements for interim status landfills.
It is
comparable to Sections
724.401
and 725.321.
40 CFR 265.301(a) contains the applicability statement for
“new”27 landfill units which must install LDS.
The Section
references the design standards in Section 724.401,
above.
The
retroactive dates should pose no problem for these HSWA
requirements.
There appears to be a typographical error in the
applicability statement in 40 CFR 265.301(a)
725.401(a))
as set
forth in the Federal Register.
A line has been dropped from the
language as set forth at five other places in the Federal
Register.
The Board has proposed to add the line, which is
indicated in bold below (725.401(a)):
(Operate
the leachate collection and removal systems,
in
accordance
with
35
Ill.
Ada.
Code
724.401(c),
unless
exempted by 35 Ill. Ad*. Code 724.401(d),
(e) or
(f).
40 CFR 265.301(c) apparently replaces the “alternative
design
and
operating
practices”
determination.
As
is
discussed
in connection with Section 725.321(c),
the Board has proposed to
follow this repeal, but
solicits comment.
New Section 265.301(c)
(725.401(c)
contains new language
referencing design standards in the RCRA Act.
These standards
are
apparently
contained
in
Section
724.401,
as
it
existed
prior
to these amendments.
The Board has proposed to use the same
language discussed above in connection with that Section.
The
Proposed language is
(725.401(c):
The owner or operator of any replacement landfill unit
is exempt from subsection
(a) above if:
27The
Board
is
using “new” to describe this complex
applicability
statement,
which
is
identical
to
that set forth
above
for
Section
725.321.
0136-0516
59
1)
The existing unit was constructed in compliance
with the design standards of 35 Ill.
Ada. Code
724.401(c),
(d) and
(e),
as amended in R86—l,
at
10 Ill. Reg. 14119,
effective August 12,
1986; and
BOARD NOTE:
The cited -subsect±ons
implemented the design standards of sections
3004(o)
(1) (A) (i)
and
(o)(5)
of
the
Resource
Conservation
and
Recovery
Act
(42
U.S.C.
6901
et seq.).
2)
There is no reason to believe that the liner is
not functioning as designed.
40 CFR 265.301(d)(1)
725.401(d)(l)
was amended in
connection with the “third third” corrections.
The amendments
change a reference to the EP toxicity characteristic to toxicity
characteristic,
limited to
D004
through D0l7.
In addition,
the
Board has proposed to modify language to eliminate the term
“waived”
725.401(d)
(1):
The doubic lincr rcquircment Aciencv shall not reauire a
double liner as set forth in subsection
(a) may bc
waivcd
by
the
Agency
for any monofill,
if:
1)
The monofill contains only hazardous wastes from
foundry furnace emission controls or metal casting
molding sand, and such waotcø do waste does not
contain constituents which would render the wastes
hazardous
for reasons other the EP toxicity
oharacterictico
in
35 Ill. Ada. Codc 31.l~4
toxicity characteristic in 35 Ill.
Ada.
Code
721.124.
with hazardous waste number D004 through
D017;
...
The text of 40 CFR 265.302 has been moved into this Section,
where it will now appear as Section 265.301(f)
—
(i)
(725.401(f)
-
(1).
Existing Section 725.401(f), which deals with appeals
and has no federal counterpart, has been moved down to
(j).
Section 725.402
Action Leakage Rate
This Section was drawn from 40
CFR
265.302.
With
the
LDS
rules,
USEPA
has
moved the existing text to the preceding
Section, and has adopted new text dealing with the action leakage
rate, the quantity of liquid in the
LDS
which
triggers
a
response.
This Section is comparable to Section 724.402, and to
Section 725.322, above.
40 CFR 265.302(b)
(725.402(b)) contains the same
typographical error as 40 CFR
264.302(a)
724.402(a).
The
0136-0517
60
Section applies to “landfills” rather than “surface
impoundments”.
40 CFR 265.302(c) contains the alternative “calculation”
which
is discussed above in connection with Section 724.402 and
725.322.
The Board has proposed to follow
the
langüáge set out
above.
The proposed text of Section 725.402(c)
is as follows:
To determine if the action leakage rate has been
exceeded, the owner or operator shall convert the
weekly or monthly flow rate from the monitoring data
obtained under Section 725.404 to an average daily flow
rate (gallons per acre per day)
for each sump.
The
average daily flow rate for each sump must be
calculated weekly during the active life and closure
period, and monthly during the post—closure care period
unless the Agency approves a different period under
Section 725.404(b).
The Board has proposed to add Section 725.402(d), allowing
appeals
of
Agency
determinations pursuant to the interim status
rules:
Final Agency determinations pursuant to this Section
are deemed to be permit denials for purposes of appeal
to the Board pursuant to Section 40 of the
Environmental Protection Act.
Section 725.403
Response Actions
This new Section is drawn from 40 CFR 265.303, which was
added
with the LDS rules.
It governs response actions which must
be
taken
if liquids enter the LDS in excess of the action leakage
rate.
It
is
similar
to
Section
724.40428
and
725.323
above.
This
Section
contains
three
minor
editorial
problems
which
are
the
same
as
discussed above
(“analyses”, “and/or” and
“either”).
The Board has proposed to add subsection
(d),
authorizing appeals of the interim status determinations.
Section 725.404
Monitoring and Inspection
This new Section is drawn from 40 CFR 265.304, which was
added with the LDS rules.
It governs “monitoring and inspection”
which is to be performed by the operator of a landfill unit.
It
is similar to Section 724.403,
for permitted landfills, and
725.326,
for interim status surface impoundments.
28The interim status landfill rules are in a different
order.
0136-0518
61
This Section includes the standard for reduction in sump
monitoring frequency,
and the standard for determination of the
“pump operating level”.
The Board has added a subsection
(d),
authorizing appeals of these interim status determinations.
Section
725.410
Closure and post-Closure Care
This Section is drawn from 40
CFR
265.310, which was amended
with the LDS rules.
A new subsection
(b) (2)
is added, requiring
the operator to maintain and monitor the LDS during the post-
closure care period.
This Section cites to requirements for
permitted landfills in Part 724
2643.
SUBPART W:
DRIP PADS
This Subpart governs interim status “drip pads”,
a type of
hazardous waste management unit on which wood products are stored
following application~of wood preservatives.
Drip pads were a
major topic in R91-1 and R91-26.
USEPA has amended the rules at
57
Fed. Reg.
5861, February 18,
1992.
The rules are quite
similar to the rules above for permitted facilities.
The interim
status rules may be of greater practical importance,
since there
are probably many new interim status facilities which were
recently brought into the program by the regulation of this new
type
of hazardous waste management unit, and who are required to
undertake
new
construction
to come into compliance.
Section 725.543
Design and Operating Requirements
This Section is drawn from 40 CFR 265.443, which was amended
at 57 Fed.
Reg.
5861.
The amendment adds to Section 725.543 a
stay
for
existing
drip
pads
at interim status facilities.
This
Section is similar to Section 724.673 above.
The extensive
discussion as to whether the existing stay for new facilities
remains is inapplicable, since the Fed. Reg.
is clear that the
existing stay continues for the interim status units.
The text
of proposed Section 725.543(a)(4)
is as follows:
Be impermeable,
e.g., concrete pads must be sealed,
coated or covered with an impermeable material such
that
the
entire
surface
where
drippage
occurs
or
may
run across is capable of containing such drippage and
mixtures of drippage and precipitation, materials or
other wastes while being routed to an associated
collection system; and
~In other words,
following “treatment” of wood to produce
“treated wood”.
However,
“treatment” and “treated” are important
terms within the hazardous waste rules and have a very different
meaning.
0136-0519
62
BOARD NOTE:
The reauirement that existing drip pads be
impermeable.
e
•
a.. that drip cads be sealed,
coated or
covered with an impermeable material,
is
administratively stayed.
The stay will remain in
effect until October 30.
1992.
The requirement that
new
drip pads be impermeable, e.g., that -new drip pads
be sealed, coated or covered with an impermeable
material,
is administratively stayed.
The stay will
remain in effect until further administrative action is
taken.
PART 726:
STANDARDS FOR THE MANAGEMENT OF SPECIFIC WASTE
AND SPECIFIC TYPES OF FACILITIES
SUBPART H:
HAZARDOUS WASTE BURNED IN BOILERS
AND INDUSTRIAL FURNACES
This Subpart regulates boilers and industrial furnaces
(“BIFs”) which burn hazardous wastes as fuel.
The BIF rules were
adopted in
R91-l3.
Section 726.200
Applicability
This Section is drawn from 40
CFR
266.100, which was amended
at 57 Fed.
Reg. 27888, June 22,
1992,
in connection with the
exclusion of coke by-product residues.
The amendment removes
from
subsection
(a)
a stay of the BIF rules with respect to
coke residues.
The stay was added in the September 5,
1991, Federal
Register.
The Board added the stay in R91-13 when it adopted the
BIF rules, even though it was outside the normal batch period..
The lifting of the stay is coupled with the revision of Section
721.104(a) (10) above,
which clarifies the exemption for this type
of recycling.
PART 728:
LAND DISPOSAL RESTRICTIONS
This Part is derived from 40
CFR
268, which contains the
USEPA
land disposal restrictions.
It was amended in several
USEPA
actions, mainly the “third third” corrections at 57 Fed.
Reg.
8088, March 6,
1992, the latest correction of the third
third land disposal rules adopted by the Board in R90-11.
Section 728.103
Dilution Prohibited
This Section is derived from 40 CFR 268.3, which was amended
at 57 Fed. Reg.
8088, March 6,
1992, the third third corrections.
The amendment authorizes dilution as a treatment for a D003
reactive cyanide wastewater or nonwastewater.
The text of
Section 728.103(b)
is as follows:
0136-0520
63
Dilution of wastes that are hazardous only because they
exhibit
a characteristic in a treatment system which
treats wastes subsequently discharged to a water of the
State pursuant to an NPDES permit issued under 35 Ill.
Ada. Code 309 or which treats wastes for purposes of
pretreatment -requirements under 35 Ill.
Adm.—Code
3tO
is not impermissible dilution for purposes of this
Section unless a method has been specified as the
treatment standard in Section 728.142. or unless the
waste
is
a
D003
cyanide
reactive
wastewater
or
nonwastewater.
Section 728.135
Third Third Prohibitions
This Section is drawn from 40 CFR 268.35, which was amended
at 57 Fed. Reg.
20770, May 15,
1992
and 57 Fed. Reg.
28632, June
26,
1992.
It is difficult to compare the USEPA and Board texts of this
Section.
The
USEPA
Section has several sentences with multi-page
lists in the middle.
To meet Code Division requirements, these
had to be rearranged to put
the
lists
at the end.
The Board
therefore
broke
several
portions
of
the
rule
into
subsections
which,
although much easier to read,
don’t look much like the
USEPA rules.
The Board subsections referenced below are tiny
specks in the midst of large paragraphs in the USEPA rule.
The text of Section 728.135(c) (6) has a minor typographical
error which apparently occurred during Board adoption.
The
specific citation to 40
CFR
268.2(g)
in the USEPA rule is
equivalent to Section 728.102 at the Board level.
This is
referring to an alphabetical definition list which does not have
subsections at the State level,
in accordance with Code Division
requirements.
The text of Section 728.135(c) (6)
is:
Inorganic solide debris as defined in 35 Ill.
Ada. Code
728.102
(which also applies to chromium refractory
bricks carrying the EPA Hazardous Waste Numbers
K048—K052);
and
The June 26,
1992, amendment adds a “national capacity
variance” for certain reclaimed lead storage batteries which are
hazardous
by
reason
of the characteristic for lead (D008).
The
amendments involve Sections 728.135(c) (5) and
(k).
The amendment
removes the D008 lead battery prohibition from subsection
(c) (5),
and adds a detailed rule as subsection
(k), with a delayed
effective
date.
The
text
of proposed Section 728.135(k)
is as
follows:
Effective May 8, 1993,
D008 lead materials stored
before secondary smelting are prohibited from land
disposal.
On
or
before.
March
1,
1993,
the
owner
or
0136-0521
64
operator of each secondary lead smelting facility shall
submit to the Agency the following:
A binding
contractual commitment to construct or otherwise
provide capacity for storing such D008 wastes prior to
smelting which complies with all applicable storage
standards;
documentati.on that the capacity to be
provided will be sufficient to manage the entire
quantity of such D008 wastes;
and, a detailed schedule
for providing such capacity.
Failure by a facility to
submit such documentation will render such D008 managed
by
that
facility
prohibited
from
land
disposal
effective March
1,
1993.
In addition, no later than
July 27,
1992, the owner or operator of each facility
shall place in the facility record documentation of the
manner and location in which such wastes will be
managed pending completion of such capacity,
demonstrating that such management capacity will be
adequate and complies with all applicable requirements
of 35 Ill. Adm. Code 720 through 728.
There are some minor problems with the USEPA language, which
the Board has addressed in the proposal.
First, to qualify for
the “variance”, the operator had to document the management
methods by July 27,
1992,
a date which has already passed.
The
Board has retained this date in the State rule.
Operators were
required to meet this HSWA-driven date as a matter of federal
law,
so there is no problem with adopting a retroactive State
date.
Second, the USEPA rule contains a reference to “subtitle C
requirements”
in
the
last
line.
The Board takes this to mean
subtitle C of the RCRA Act, the statutory basis for the federal
hazardous waste program.
The Board has proposed to reference 35
Ill. Adm. Code 720 through 728 as State equivalents, but
solicits
comment.
The May 15,
1992, amendment adds
a “general capacity
variance”
until
May 8,
1993,
for debris which is contaminated
with certain hazardous waste.
The proposed text of Section
728.135(e)
is
as
follows:
Effective Nay 8, 1~2, the vastec specified in this
Section having a treatment otandard in
Subpart
D
based
en incineration,
mercury
retorting,
vitrifioation,
acid
leaohing followed by chemical
precipitation er
thermal
recovery
of metals
and
which are contaminated soil or
debris, are prohibitcd from land di.poaal. Effective
May 8.
1993.
debris that is contaminated with wastes
listed
in
Sections
728.110,
728.111
or
728.112.
and
debris that is contaminated with any characteristic
waste for which treatment standards are established in
Subpart
D. are prohibited from land disposal.
0136-0522
65
The new language apparently replaces an unrelated “capacity
variance” involving thermal recovery of metals.
That variance
expired on May 8,
1992.
The USEPA text makes reference to 40 CFR 268.10, 268.11 and
268.12.
At~the
USEPA
level,
these—are-
HSWA—requ±red-ruleswhich
set up the schedule by which USEPA adopted the land disposal
bans.
The Board originally avoided adopting these,
since the
verbatim text would appear to be a State rule enforceable against
USEPA.
However,
in R91-l3, the Board noted that these rules also
define the first,
second and third thirds, and are sometimes used
for this purpose in the rules.
Between them they include all
hazardous waste, except newly listed wastes.
The Board therefore
incorporated the rules by reference,
setting up dummy Sections.
The
Board
has
proposed
to
reference
the
dummy
Sections.
The
USEPA
rule
grants
a
variance
for
debris
contaminated
with
wastes
listed
in
all three Sections.
Since the lists are
mutually
exclusive,
this
would
be
the
null
set.
The
Board
has
proposed to change the “and” to an “or”.
Section
728.141
CCWE Treatment
Standards
This Section is drawn from 40
CFR
268.41, which was amended
at 57 Fed.
Reg.
8088,
March
6,
1992,
the
third third corrections.
The Section establishes treatment standards expressed as
constituent concentrations in the waste extract (CCWE),
one of
the three types of treatment standards in this part.
The amendments contain a large number of minor changes to
the text of Section 728
.
141 (a).
The proposed Board language is
as follows:
Table
A
identifies
the
restricted
wastes
and
the
concentrations
of
their
associated
hacardouc
constituents
which
may
not
be
exceeded
by
the
extract
of a waste or waste treatment residual developed using
the
test method in Appendix A for the allowabl, land
disposal
of
such
waste~,
with
the
exception
of
wastes
D004,
D008,
K031
D031,
K084,
K101,
K102,
POlO,
POll,
P012, P036,
P038 and U136.
Tablc
A
identifies the
rootricted
wastes
D004,
D008,
K031,
K084,
KiOl,
K102.
POlO, POll,
P012,
P036, P038 and U136 and the
concentrations of their associated constituents which
shall not be exceeded by the extract of a waste or
waste treatment residual developed using the test
method in 35 Ill. Ada. Code 721.Appendix A or B for the
allowable land disposal of such wastes.
(Appendix B Q.t
this Part~providesguidance on treatment methods that
have been shown to achieve the Table A levels for the
respective wastes.
Appendix B of this Part is not a
regulatory requirement but is provided to assist
0 136-0523
66
generators
and
owners
or
operators
in
their
selection
of appropriate treatment methods.) Compliance with
these
concentrations
is
required
based
y,~pongrab
samples. unless otherwise noted
in Table A.
There are several possible
USEPA
editorial errOrS, SOme of
which
have
been
corrected
in
the
above
language.
The
language
in
question
is
shown
in
bold
above.
First,
the
Fed.
Reg.
has
changed the first sentence to read:
“...
of
this
part
of
the
allowable...”
The CFR and Board rule both read “for”, which
seems to make more sense.
This appears to be a typographical
error, which the Board has corrected.
Second, the shift from “K03l” to “D031”, which the Board is
proposing
to
follow,
could
well
be
a
typographical
error
in
the
TJSEPA
language.
This
reads
“K031”
in
the
CFR.3°
The
Board
solicits comment as to whether this ought to be left as “K031”.
The existing USEPA rule includes the listing of waste
numbers two times.
In the amendment, the second list has
apparently
been
dropped.
This
may
be
a
deliberate
editorial
change to the Section, or it may be a typographical error.
The
Board has proposed to follow the USEPA text and delete the second
list,
since
the
meaning
seems
unchanged.
However,
the
Board
solicits
comment.
The main change to this Section, the one discussed in the
preamble,
is the final “unless” clause, which allows sampling
other
than
by
grab
samples, as specified in the Table.
However,
USEPA
has
cited
to
“Table
CCW”
(Table B).
This Section governs
Table CCWE Table
A31.
The Board has proposed to correct this
error.
USEPA has also changed the references to Appendices in this
Section.
The
Board
noted
in
prior
opinions
that
these
appeared
to
be
wrong,
but
followed
the
USEPA
language
in
the
absence
of
clear
cut
resolution.
The
issue
has
been
confused
by
the
references
to
Appendix
II
B
in
two
different
Parts.
The
Board
has proposed to follow the USEPA clarification.
3~it would
be easy to make this type of typographical error
in the Fed. Reg, which does not use a strike and underline
format.
On
the
other
hand,
it is possible
that
USEPA
is
correcting an earlier error, which the Board followed in adopting
this Section.
The Preamble to the March 6 Fed. Reg. does not
mention this as a change being made.
31The Administrative Code format requirements forced the
Board
to
separate
the
very
large
CCWE and CCW tables into
“Tables”,
which
float
at
the
end
of
the
Part,
like
Appendices.
CCWE
corresponds with A, and CCW
with
Table
B.
0I36-o52L~
67
Table D
Technology-based Standards
This
Table
is
drawn
from
40
CFR
268.42,
Table
2,
which
was
amended
at
57
Fed.
Reg.
8088,
March
6,
1992,
the
third
third
corrections.
The
amendment correlates with the exclusion of
cyanide
cbaracteristicwastes
from
the
no
dilution
rulé
above.
D003 Sulfide reactive wastes may not be diluted as a substitute
for treatment.
HISTORY
OF
RCRA
UST
and UIC
ADOPTION
The
Illinois
RCRA,
UST
(Underground
Storage
Tanks)
and
UIC
(Underground
Injection
Control)
regulations,
together
with
more
stringent State regulations particularly applicable to hazardous
waste,
include the following:
702
RCRA and UIC Permit Programs
703
RCRA Permit Program
704
UIC Permit Program
705
Procedures for Permit Issuance
709
Wastestream Authorizations
720
General
721
Identification and Listing
722
Generator
Standards
723
Transporter Standards
724
Final
TSD
Standards
725
Interim Status TSD Standards
726
Specific Wastes and Management Facilities
728
USEPA Land Disposal Restrictions
729
Landfills:
Prohibited
Wastes
730
UIC Operating Requirements
731
Underground Storage Tanks
738
Injection Restrictions
Special procedures for RCRA cases are included in Parts 102,
103,
104
and 106.
Adoption of these regulations has proceeded in several
stages.
The Phase
I RCRA regulations were adopted and amended as
follows:
R81—22
45
PCB
317,
February
4,
1982,
6
Ill.
Reg.
4828,
April
23,
1982.
R82—18
51 PCB
31,
January 13,
1983,
7 Ill. Reg.
2518,
March
4,
1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47 Fed.
Reg.
21043).
The
UIC
regulations
were
adopted
as
follows:
0136-0525
68
R8l—32
47 PCB 93,
May
13,
1982;
October
15,
1982,
6
Ill.
Reg.
12479.
The UIC regulations were amended in R82-18, which is
referenced above.
The UIC regulations were also amended in R83—
39—:
R83—39
55
PCB
319,
December 15,
1983;
7 Ill. Reg.
17338,
December 20,
1983.
Illinois
received
UIC
authorization
February
1,
1984.
The
Board
has
updated
the
UIC
regulations:
R85—23
70
PCB
311,
June
20,
1986;
10
Ill.
Reg.
13274,
August 8,
1986.
R86—27
Dismissed at 77 PCB 234, April
16,
1987
(No USEPA
amendments
through
12/31/86).
R87—29
January
21,
1988;
12
Ill.
Reg.
6673,
April
8,
1988;
(1/1/87
through
6/30/87).
R88—2
June
16,
1988;
12 Ill.
Reg. 13700, August 26,
1988.
(7/1/87
through 12/31/87).
R88—17
December
15,
1988;
13
Ill.
Reg.
478,
effective
December
30,
1988.
(1/1/88
through
6/30/88).
R89—2
January
25,
1990;
14
Ill.
Reg.
3059,
effective
February 20,
1990
(7/1/88 through 12/31/88).
R89—11
May
24,
1990;
14 Ill.
Reg.
11948,
July
20,
1990,
effective
July
9,
1990.
(1/1/89
through
11/30/89).
R90-5
Dismissed March
22,
1990
(12/1/89
through
12/31/89)
R90—14
Adopted May 23,
1991;
15 Ill. Reg.
11425,
effective
July
24,
1991
(1/1/90
through
6/30/90)
R91-4
Dismissed
February
28,
1991
(7/1
through
12/31/90)
R9l-16
Dismissed December 6, 1991 (1/1 through 6/30/91)
R92—4
Dismissed April
9,
1992 (7/1/91 through 12/31/91)
R92-l3
Next
UIC
Docket
(1/1/92
through 6/30/92)
The
Phase
II
RCRA
regulations
included
adoption
of
Parts
703
and 724, which established the permit program and final TSD
0136-0526
69
standards.
The Phase II regulations
were
adopted
and
amended
as
follows:
R82—l9
53 PCB 131, July 26, 1983,
7
Ill. Reg.
13999,
October 28,
1983.
R83—24
55 PCB 31, December 15,
1983,
8 Ill. Reg.
200,
January
6,
1984.
On
September
6,
1984,
the
Third
District
Appellate
Court
upheld the Board’s actions in adopting R82-19 and R83-24.
(Commonwealth Edison et al.
v.
IPCB,
127 Ill. App. 3d 446; 468 NE
2d 1339
(Third Dist.
1984).)
The Board updated the RCRA regulations to correspond with
USEPA amendments in several dockets.
The period of the USEPA
regulations covered by the update is indicated in parentheses:
R84—9
64 PCB 427, June 13,
1985;
9 Ill. Reg.
11964,
effective July 24,
1985.
(through 4/24/84)
R85-22
67 PCB 175, 479, December 20,
1985 and January 9,
1986;
10
Ill. Reg.
968, effective January
2, 1986.
(4/25/84
——
6/30/85)
R86—1
71 PCB 110,
July
11,
1986;
10
Ill.
Reg.
13998,
August
22,
1986.
(7/1/85 —— 1/31/86)
R86—19
73 PCB 467,
October
23,
1986;
10 Ill.
Reg. 20630,
December 12,
1986.
(2/1/86
——
3/31/86)
R86—28
75
PCB
306,
February
5,
1987;
and
76
PCB
195,
March
5,
1987;
11 Ill.
Reg.
6017, April
3,
1987.
Correction at 77 PCB 235, April 16,
1987;
11 Ill.
Reg.
8684,
May
1,
1987.
(4/1/86
——
6/30/86)
R86—46
July
16,
1987;
August
14,
1987;
11
Ill.
Reg.
13435.
(7/1/86 ——9/30/86)
R87—5
October 15,
1987;
11 Ill. Reg. 19280, November
30,
1987.
(10/1/86 —— 12/31/86)
R87—26
December
3,
1987;
12
Ill.
Reg.
2450,
January
29,
1988.
(1/1/87
——
6/30/87)
R87-32
Correction
to
R86-1:
September 4,
1987;
11 Ill.
Reg.
16698,
October
16,
1987.
R87—39
Adopted June 14,
1988;
12 Ill. Reg.
12999,
August 12,
1988.
(7/1/87
——
12/31/87)
0~36 0527
70
R88—l6
November 17,
1988;
13 Ill. Reg. 447, effective
December 28,
1988
(1/1/88 —— 7/31/88)
R89-1
September 13, October 18 and November 16,
1989;
13 Ill.
Reg.
18278, effective November 13,
1989
(8/1/88
——
12/31/88)
R89—9
March
8,
1990;
14
Ill.
Reg.
6225,
effective
April
16,
1990
(1/1/89 through 6/30/89)
R90—2
July
3
and
August
9,
1990;
14
Ill.
Reg.
14401,
effective August 22,
1990
(7/1/89 through
12
/
31/89)
R90-l0
August 30 and September
13,
1990;
14
Ill.
Reg.
16450,
effective September
25, 1990
(TCLP
Test)
(1/1/90 through 3/31/90)
R90—ll
April 11, May 23,
1991;
15 Ill. Reg. 9323,
effective June 17,
1991
(Third Third)
(4/1/90
through 6/30/90);
Corrected August
8,
1991;
Uncorrected August 22,
1991.
R90-l7
Delisting Procedures
(See below)
R91—l
August
8,
1991;
15 Ill. Reg.
14446, effective
September 30,
1991
(Wood Preserving)
(7/1/90
through 12/30/90)
R9l—l3
April
9,
1992; Boilers and Industrial Furnaces
(BIFs)
(1/1/91
through 6/30/91)
R91-26
Wood Preserving Compliance Dates; January 9,
1992;
16 Ill.
Reg.
2600, effective February 3,
1992.
R92—1
September 17,
1992 (7/1/91 through 12/31/91)
R92-1O
This Docket
(1/1/92 through 6/30/92)
Illinois received final authorization for the RCRA program
effective January 31,
1986.
The Underground Storage Tank rules were adopted in R86-1 and
R86-28, which were RCRA update Dockets discussed above.
They are
currently being handled in their own Dockets:
R88—27
April
27,
1989;
13 Ill. Reg. 9519, effective June
12,
1989 (Technical standards, September 23,
1989)
R89—4
July 27,
1989;
13 Ill. Reg.
15010, effective
September 12,
1989 (Financial assurance, October
26, 1989)
0136-0528
71
R89—10
February
22,
1990;
14
Ill. Reg. 5797, effective
April
10, 1990
(Initial update, through 6/30/89)
R89—19
April
26,
1990;
14
Ill.
Reg.
9454,
effective
June
4,
1990
(UST State Fund)
R90—3
June
7,
1990;
(7/1/89
— 12/31/89)
R90—12
February 28,
1991 (1/1/90
—
6/30/90)
R91—2
July 25,
1991
(7/1 through 12/31/90)
R91—l4
April
9,
1992
(1/1/91
through 6/30/91)
R92—2
Dismissed June
4,
1992
(7/1/91
through
12/31/91)
R92—ll
Dismissed
August
13,
1992
(1/1/92
through
6/30/92)
The Board added to the federal listings of hazardous waste
by listing dioxins pursuant to Section 22.4(d) of the Act:
R84—34
61
PCB
247,
November
21,
1984;
8
Ill.
Reg.
24562,
effective
December
11,
1984.
This was repealed by
R85-22,
which included adoption of
USEPA’s dioxin listings.
Section 22.4(d) was repealed by S.D.
1834.
The Board has adopted USEPA delistings at
the
request of
Amoco, Envirite and USX:
R85—2
69
PCB
314,
April
24,
1986;
10
Ill.
Reg.
8112,
effective
May
2,
1986.
R87—30
June
30,
1988;
12
Ill.
Reg.
12070,
effective
July
12,
1988.
R91—l2
December 19,
1991;
16
Ill. Reg.
2155, Effective
January 27,
1992
(USX)
The Board has modified the delisting procedures to allow the
use of adjusted standards in lieu of site—specific rulemakings:
R90—l7
February 28,
1991;
15
Ill. Reg. 7934, effective
May 9,
1991
The Board has granted a delisting by way of adjusted
standard:
AS91-1
Keystone, February 6,
1992
0136-0529
72
The Board has procedures to be followed in cases before it
involving the RCRA regulations:
R84—lO
62 PCB 87,
349, December 20,
1984 and January 10,
1985;
9 Ill. Reg.
1383, effective January 16,
1985.
The Board also adopted in Part 106 special procedures to be
followed in certain determinations.
Part 106 was adopted in R85-
22 and amended in R86-46,
listed above.
The Board has also adopted requirements limiting and
restricting the landfilling of liquid hazardous waste, hazardous
wastes containing halogenated compounds and hazardous wastes
generally:
R81—25
60 PCB 381, October 25,
1984;
8 Ill.
Reg.
24124,
December 4,
1984;
R83—28
February 26,
1986;
10 Ill. Reg.
4875, effective
March
7,
1986.
R86—9
Emergency regulations adopted at 73 PCB 427,
October 23,
1986; 10 Ill. Reg. 19787, effective
November 5,
1986.
The Board’s action in adopting emergency regulations in R86-
9 was reversed (CBE and IEPA v. IPCB et al,
First District,
January 26,
1987).
CONCLUSION
This opinion supports the Board’s proposed order of this
same date.
The Board will
receive
written public comment for 45
days
after
the
date
of
publication
of
the proposed rules in the
Illinois Register.
0136-0530
73
IT IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board, hereby ce)ti
that the above opinion was adqpted on the
1/~day of
_____________,
1992,
by a vote of
7~’
0136-0531
Illino:
Control Board
