Ms. Dorothy Gunn
Clerk
Illinois
Pollution Control Board
100
West Randolph Street
Suite 11—500
Chicago,
IllinoIs
60601
flear
Ms. Gunn:
The United States Environmental Protection Agency (U.S. EPA) has
eviewd the
Illinois Pollution Control Board’s
(Board) May 27, 1993,
Proposed thder of
RCRA Update R93-4,
which Is analogousto the RCRA Cluster
III rules that
appeared In the FederaL Register between July 1, 1992,
and December 31. 1992.
Please find enclosed our comments on.~,theproposed rules, as well as responses
to the regulatory questions raised :in~theProposed Opinion which accompanied
the proposed Order.
Mr. Gary Westefer,of my staff, previously discussed our
responses with Ms. Anne Manly of the Board.
Please contact Mr.
Westefer at (312) 886—7450,
if you
are In need of further assistance.
Norman R. Niede~gar”~~”
Associate Division Director for RCRA
Waste Management Division
Sincerely yours,
have any t~uestions,or
1.
Part 703
-
No coment.
2. Part 720
-
No comment.
3. Part 721
•
1.
-
....~i
STATES ENVIRONMENTAL
I
-
.,~
CY’S
TS ON ILLINOIS’ PROPOSED
RULES PACKAGE R93-4,
AP4ALOGO(JS TO RCRA CLUSTER III RULES.
a.
S~rtjnp721
,j.Qj
The Board has solicited comment on t~h.eBoard Note
levels.
We find the clarification ac~eptable.
•~..
The Board has solicited comment on whether Federal amendments
to 40 CFR Part
261.31 have the effect of lifting the~Federalstay of this regulation.
The
Board’s interpretation is correct:
the Federal amendments have the effect of
lifting the stay,
and so the State stay should also be lifted.
4. Part 722
-
No comment.
5. Part 724
b.
c~rt1nr~
7~1fl
which clarifies exclusion
The Federal rule at 40 CFR Part 264.147(h)(4)
specifies that
“
trustee of the standby trust fund must be an entity which has
act as a trustee and whose trust operations are regulated ~
Federal or State agency.”
(Emphasis added.)
The Board has concluded that
there are no practical situations where a Federally regulated entity
doing business in Illinois will
not
diSo
be regulated by the State.”
Accordingly,
the Board proposes
to substitute the language,
“.
.
.
regulated
and examined by the Illinois Commissioner of Banks and Trust
.
.
.
or who
complies with the Corporate Fiduciary~Act(Ill.
Rev. Stat.
1991,
ch.
17
.
.
.)“
in lieu of the language
is
erlined.above.
The Board should
standby trust to
regulation
is
“.
agency has to be
standby trust
is
that the standby
to consider that
standby trust
In
recognize that nothi
be an in-state Insti
Federal or State
in the State where t
located,
The Board’
trustee be an Ililno
a company doing busi
a different State.
b. Section 72~L414
The Board solicited comment on the re
with the Federal regulations, and the~
Process to provide an equivalent to
1)
:~..
•
.
tjhe
the authority to
~~~~ijned
by
R
In the Federal regulation requires the
~1on.The language of the Federal
~ency.°
It does not say that the State
owner or operator who
is obtaining the
roposed change seems to contemplate
regulated entity.
The Board may wish
s
here may want to establish the
~er1ng
of this
ting of 35 IAC
EPA’s petition process,
:1:
Section to correlate
106 Illinois Petition
posed in Section 724.414.
a. ~ction724.247
The US,
EPA agrees with the changes
1.
The Board
existent stay
appropriately
requirement.
•
•
c. S~ections124.67Othrough 724.673 (Subpart W~
solicited comments on whether 1)
the U.S. EPA cited a non-
to the drip pad provisions
in 57 E& 61493,
2) the U.S. EPA had
terminated the stay,
and~’3)the drip pad exception
Is a HSWA
Our responses to these questions are the~following:.
Item
1
-
The Board has correctly terminated the stay on drip pad provisions.
The Federal stay was terminated in the~December 24, 1992,
Fledera.l Register
Item
2
—
The Board has correctly interpreted that there was no stay on
June 6,
1992 as was reported incorrectly at 57 ER 61493; and
Item
3
—
The preamble to the December 6,
1990, Federal Register
indicates that
the Wood Preserving Rule
Is
a HSWA provision.
ii.
In Section 724.673 (3)(A), the Board cites that owners and operators must
.nanage residues in accordance with 35
lAC. 721 through 728, and Section 3010 of
RCRA.
This appropriately covers
the Federal equivalent of 40 CER Parts 261—
268, and Section 3010 of RCRA.
However,.the citation does not cover Part 270
which is also cited
in the correspondlng..Part 264.573.
d. ~
724.1100
1.
The Board ha~proposed to include the introductory language of the
Federal
regulation, which states:
.
“The requirements of this subpart apply to owners or operators who store
or treat n~zardouswaste
in units
..
These provisions will become
effective on February 18, 1993,
although the owner or operator may
notify the U.S. EPA of his
intent tobe bound
•
..‘
Since February 18,
1993,
has passed,
it
l~i~uage
to read,
“The Federal
regulati.
l99~,although owners or operators were~
This
‘anguage would a~sobe appropriate
ii.
In Sections
724.1100(a)
and 725.11
sake of clarity, breaking out
into sepa
failure in containment buildings,
whfch.
cuch buildings,
U.S. EPA finds this
ci
Board inserted an “or”
instead of the cu
and 725.11O0(a)(4~i. By so doing,
the Bo
hi.1fldlng must be designed to prevent faf~
which
Is the Intention of the Federal re~
would be appropriate to change this
~ became effective on February 18,
~titled
to notify U.S. EPA
•
*
~
Section 725.1100.
~),
the Board has proposed, for the
~sections the factors that cause
~tbe prevented by proper design of
tfication
to
be acceptable
if the
~nt“and” at Sections 724.1100(a)(4)
~ensures that the containment
a by any ~
of these factors,
latIon.
111.
In Section 724.1100(d), the Board did not catch an error in the Federal
regulations.
As promulgated in the Federal Register at 57 ER 37265 (8/18/92),
the Federal regulation requires an owneror operator of a containment building
to ensure that the unit
(d)
Has controls
sufficient to prevent fugitive dust emissions to
meet the no visible emission standard in
40 CFR 264.1101(c)(1)(iv).
.
.
The word
“prevent”
is a misprint.
It should be “permit.”
Please insert
either “permit” or another word that conveys the proper meaning, j.~.,that
fugitive dust emissions in containment buildings must meet the no visible
emission standard of the regulations.
e. Section ZZ4~1101
I.
In Sections 724.11O1(a)(2) and 725.itOl(a)(2),
the Board has proposed
regulations that require containment buildings to meet the structural
Integrity requirements established by recognized professional organizations.
The corresponding Federal regulation states that U.S. EPA will consider
the
standards established by professional organizations
in determining the
structural
integrity of containment buildings.
Illinois’ regulation
is more
stringent than its Federal counterpart.~Thisis permissible and U.S. EPA has
no objection.
Ii.
In Part 264.1101(b)(4) and 265.1.1O1(b)(4),
U.S. EPA allowed the owner or
operator of an existing containment building to apply for a delay
in
implementing the secondary containment requirement for up to two years.
Such
owners and operators were required to submit written notice describing
operating practices and plans
for retrofitting the unit with secondary
containment
to the Regional Administrator, by November
16,
1992.
The Board, noting that no criteria are provided for the Regional
Administrator’s determination whether the owner’s or operator’s unit justifies
a two year delay,
solicited comment on what enforcement responsibility Is
placed on the State by this provision, apd1whether the State should properly
adopt this provision at all.
~
Since no applications for the two-year dxtCnsion period were received
in
Region
V,
the State will
not have any enforcement responsibility.
The State
is not required to adopt
the provision a~1low1ngfor a two year delay.
ill.
In Part 264.1101(e),
the Federal r~gulat1on
Regional Administrator may waive requIre~ientsfor
permitted containment building where the. owner or
..“
The Board has
proposed
to
substitUte the
not require secondary containment for a ~~ermitted
If
.
.
..“
The Board should recognIze that
rLir.e the Regional Administrator to waive
containment, but
leaves It to his dlscrellQn
agaInst Such a waiver,
The proposed
Illln8is
with no similar discretion,
and may cause the
provides:
“.
.
.
the
secondary containment for a
operator demonstrates that
language
ttthe Agency shall
containment building
the Federal regulatIofl does not
the requirement for secondary
in case other
factors weigh
analog leaves the State agency
agency to be less stringent.
a. ~ect1on
725.245
On lines
13
misspelled.
and
15, on page 200,
b.
~~rt1nn
72c247
“Before disposal,
the liquid wast
treated or stabilized, chemicall
sorbent solid),
so that free llq
e.
Section 725.443
/
the words guarantee and guarantor are
In Section 725.247(h)(4),
a line is missIng.
The words
“will
be deposited by
the issuing institution into the standby: trust” should be inserted between the
words
“trust” and “in accordance” on line 5 of Part 725.247(h)(4) located on
oage 209.
c.
Section
725.321
The Board has pointed out a problem with
new
40 CFR Part 265.221(h).
This
new
regulation provides that surface impoundments newly subject to RCRA due to the
promulgation of additional
listings must~bein compliance with “paragraphs
(a),
(c) ~
(d) of this section not later than 48 months after the
promulgation
.
.
..“
;~:
Section (c) of the Federal regulations provides an exemption to the
requirements of section (a).
Section (d) provides
a waiver mechanism from
the requirements of Section
(a).
.
Accordingly, no surface impoundment
will be
in compliance with any two of these sections at the same time.
The Board has
proposed
to substitute
“or” for
“and.”.
The Board has correctly interpreted
the intent of the Federal regulation,
d
Section 725 414
In this Section, Section (a)(2)
appears;to be mIssing from the Illinois
regulations.
This Section found In the Federal analogue at 40 CFR Part
261.314(a)(2) reads:
.
In line
1
under Section 725.443(b)(3)
~
system...” should read “A leakage colilec
same section,
the word “properly”
is m~s,
section,
the
word
“of”
should be “or”
~
~
I
:1
waste containing free liquids
is
physically
(e.g. by mixing with a
~arenolonger present.”
age 219,
“A leaking collection
on system...”.
In line 4 of the
elled.
In line 6 of the same
f.
Sect4nn
72cllnn
i.
In Section 725.1100(c)(3) the Board has pointed out a potential Federal
typographical
error.
This regulation provides design and construction
specifications for the secondary containment systems of containment buildings
not operating under a permit system’. In almost every respect,
all of the non—
permitted containment building regulations are exact copies of those
regulating permitted containment buildings.
In this Section,
however,
the
phrase “at the earliest
~siib.1~
time”
is used instead of the phrase “at the
earliest practicable time.”
(Emphasis added.?
The Board has proposed to substitute “practicable” for the Federal term
“possible.”
The Federal Register preamble supports this assumption.
At
57
ER
37211,
it
is stated that.
“.
.
.
containment buildings under Part 265
interim status standards
.
.
.to meet thes~medesign and operating
requirements as (Part 264) permitted.conta~unentbuildings
.
.
..“
Further,
at 57 ER 37214,
the fact that the leak detection system should remove leaks of
hazardous material at
the earliest “practicable” time is reiterated.
U.S. EPA
believes
the Board’s proposed substitution complies with the intention of the
Federal regulation.
.
.
-:.
.
~.
.
ii.
Regarding Section 725.1100(d).:j;:~
See the discussion concerning the words
“prevent” and “permit” with regard to
Section 724.1100(d),
in comment
d. ~1ii.on
page three above.
g. Section 725.1101
In line
1
of Section 725.1101(b)(3)(B)on page 224, the words
“mt
he
building” should be “in the building”.
.
In line 2 of Section 725.110l(d)(2) on page 226, the word “Inot” should be
“into”.
.
7.
Part
726
~!.
In Section 726.203,
the
Board has ~qsed
to add a Board Note stating the
following:
.
Federal Sections 726.203(c)(1)~(fi5(A)(1)and (2) are condensed
into the above
Section.
~
The cited regulation
is a State, no~F~deral,
regulation.
The appropriate
citation would be Part 266.103(c)(1)(iil)(A)(1)and(2).
In line 2 of Section 726.203(c?(1)(B)(~JiI)
on page
244, the words “adjusted
tire”
should be “adjusted tier’.
Thé:~ameerror appears again
in line
3
of
Section 726203(c)(1)(F) on page ~
\
f~
a.
~.e.c~~1on
726.203
r~
L
k,
r
a.
Sc~rtthn72R.107
The Board has noted that 40 CFR Part 268.7 contains a typographical
error at
(a)(2), which references Part 261.3(e)(2).
Part 261.3(e) is a sunset
provision.
The Board has proposed to replace all
references to 261.3(e)
728.103(e))
with 261.3(d)
728.103(d)).
~
~.
...
‘.
The Board Is correct in its assumption thatthe reference to Part 261.3(e)
is
an error.
However, the Board’s proposed substitute Is also incorrect.
According to U.S. EPA Headquarters,~thecorrect substitution for references to
Part 261.3(e)
is new regulation Part 261.3(f)(2)
728.103(f)(2)). ~This
provision is the new “contained—in” policy, which allows the Regional
Administrator to make case-by-case determinations.
728,107(a)(4) on page 277, “tanks or containers”
containers or~conta1nmentbuildings”.
b.I~W
On line
3 of
should read,
On page 324,
under the chemical
listings for K136, the concentration for
Ethylene Dibromide should be 15 mg/l..~.Inaddition, the chemicals Methyl
Bromide and Chloroform are missing.
c.
I~jle
j~
On
page
338,
under
the
chemical
listings for K109, line
3 should read “CARBN;
or BIOOG fb CARBH”.
d.
Table~E
.
...~
.
.‘.:
One part of Table
F
includes
three
columns..
The
headings
of
these
columns
are
“Technology Description”, “Performance or Design and Operating Standard”, and
“Contaminant Restrictions”.
The la~gu~e
In the rule is complete;
however, in
many cases
It
is In the wrong co1um~s.1The misplaced language appears as
follows:
I
Under 2b and c on page 357, the fir,t~lurnnof 2c
Is
In the second column of
2b.
The second column of 2c
Is
in ~~e:~third
column under 2 b, and
the third
column of 2b is under the second có~ünder2b.
~
~
Under 3a the containment restrict1oi~S.~at
should appear in column 3 are
instead located In column
1.
th~sé~ond
paragraph of column
1 whIch begins
be~io~ted
in the first paragraph of column
Section
“tanks,
On Page 360 the first S lines
in
“Debris contaminated...”, should
3.
The word “none” which appears
in pai
In paragraph
2 column 3.
3,
column
1,
on
page
360,
should
be
In paragraph
I of column
I on Page 3.~.. _ider 1..rmal destruction, the
language “35 111. Adm. Code 265.Subpart 0”.
should be “35
Iii. Adm. Code
725.Subpart 0.”
e.
T~ble_G
On page 361, under the chemical listing F006,
the C.A.S.
Number for Arsenic
should be “7440—38-?”.
On page 361 under the chemical listingK062,
Illinois appears to have adopted
an error that appeared
in the Federal.’Register.
The constituent listed as
“Lean” should be listed as “lead”.
9.
Part
739
.
a. ~ect1on
739.100
The Board has noted that certain definitions used in Part 739 are different
from definitions
for the same terms used~1~elsewherein the regulations.
The
Board proposes to add Board Notes alerting readers that certain definitions
are
limited to this Section only.
The Board may want to consider defining
slightly different terms for purposes of this Section.
For example, the term
“Aboveground tank”
is defined differently In Part 739 than it
is
for, purposes
of Section 720.110.
In order to reduce the chances of confusion,
the Board
may want to consider defining the term as “Aboveground Used Oil
Tank”
here,
so.
that readers do not rely on an inapplicable definition provided in a different,.,,
Part.
b.
S~ctfon
739.110~~
f.
The Board has solicited comment about Its interpretation of the Federal
definition of “used oil.”
The Federal regulation excludes from the definition’
of used oil,
“.
.
.
that type of oil generated on farmland property devoted to
agricultural use and used on that property for heating
or. burning.”
~h1sproduced on farms, and is
~farm for heating or burning
is
The Board has concluded that
“.
.
.
devoted to agricultural
use, and used
not subject to regulation under the
t.:
Under the Federal regulation there a;~
generatIng
used oIl
from vehicles
or
n
gallons per
month;
and 2) those genera
In quantities less than or equal
to ~
generates greater than 25 gallons per
agricultural use, and uses the used 01
used oil would be subject to 40 CFR Pa
generates less than or equal
to 25 gal
the oil, must be devoted to agr1cultur~
exomption.~..Theused
oil
must be used’.
‘S
lasses of farmers:
1) those
ry in quantities greater
than 25
sed
of 1
from vehicles or machinery
per month.
If a farmer
farmland property devoted to
sting or. burning, the farmer’s
regulations..
If a farmer
r
month,
the farm property, not
In order to
fall within the
or~.heat1ng.
‘I
ii
The Board also solicited comment as to whether definitions for
“metalworking
oils
or
fluids”
and’ “off-specification used oil” should
be
included
in the regulations.
These.definitions would clarify the scope of the
‘
regulations.
Any such definitions should be consistent with the delinition of
“used oil” at RCRA Section 1004(36)
and. 40 CFR Part 279.
iii.
The Board solicited comment”’as tO whether “de minimis used oil” has a
different meaning in any Part of the Federal regulations other than Part 279.
c’”
“De minimis” is addressed In 40 CFR Part 261.3, and may be addressed in the
new Federal hazardous waste identification rule.
That
is why the definition
of “de minimis” with respect to used oil
is limited to a specific subpart.
iv. The Board listed
5 interpretations, on page 55 of Its Proposed Opinion and
solicited comment as
to whether these interpretations are correct.
All
interpretations are correct excep,t item 2.’~Used oil exceeding 1,000 ppm total
halogens
(less
than the 4,000 ppm specification level) may be’ regulated as a
hazardous waste, depending on the handler’s success
in rebutting the
presumption of mixture.
c’
c.
Sections
739.124 andl39131
‘
‘
The
Board has requested comment on whether new Federal regulations regarding
the transportation and collection ‘of used oil contemplate the creation of a
permit process.
The regulations require that’used oil collection centers must
be registered, licensed, permitted or recognized by a State, county or
municipal government to manage used oil.
.
.,
.
Section 3014 of RCRA provides for “permit by rule.”
This
is similar to
Interim status for hazardous wastes and basically means that so long’as
‘
someone
complies
with
the regulations,’they
are
permitted
to
conduct
the
activity.
The Administrator may requireowners and operators to obtain a
.
‘H
permit pursuant to RCRA Section 3005(c) if he determines that an individual
.
.
.
.
permit is necessary to protect human health and the environment.
(See Section
‘
3014(d) of RCRA, as amended.)
‘“
‘
.
‘..‘
‘
‘
‘
‘
.1’
We have contacted Headquarters ab~,~th~s’issue,
Mr. Randy Hill, who is in
charge
of issues attendant to the ~ewu~edoil
regulations,
informed
us that
State
and local
governments retai
‘some~discret1onto choose the type and
extent
of
oversight.
“~,
‘cc’:
~
~‘
.
.
‘
‘
.
H
~E
!~
~
~
~
d. Section
‘i
LI~
On page 61 of the Board Opinion,
ti
._rd has stated that It interprets 40
CFR Part 279.43(a)—(c) to mean,
“.
.
.
that the transportation of more than 55
gallons
of
used
oil
.is
not
regulated 1f~tis
being
delivered
to
a
Do-It-
Yourself collection center, a collectioncenter,
or an aggregation point.”
We
believe this interpretation is incorrect.
Section 739.140 of Illinois’
proposed regulation specifies that the.regulations are not’applicable to
generators who transport 55 gallons or less,of used oil
to a usedoil
collection point, or to an:aggregatlon po~ntowned by the same generator.
The
key
point
Is
who
Is doing the transporting.’’ If’the transporter is not the
generator, or if the transporter is not-transporting Do—It—Yourselfer used
oil,
then
the
transporter
Is subject to regulation even if transporting 55
gallons or less,
of. used oil.
e. $ection 739.144
,
.
-.
-
Section 739.144
regulates
the
manner
inwhlch
a
used
oil
transporter
must
determine the total
halogen content of used oil being transported or stored at
a transfer facility.
To ensure that the used
oil’ .is not a hazardous waste,
the
used oil
transporter must determine whether the total halogen content of
used oil being transported or stored is above or below 1,000 ppm.
The Board
is concerned that the transporter can make this determination simply by
•
.applying knowledge of the halogen ‘content of’the used oil
in light of
the material
or processes used.”
(Section 739.144(b)(2),
40 CFR Part
.
.
1,;:,
279.44(b)(2).)
The
Board
notes
that, the,.test
does,not
require
that
the
.
.:.
transporter
possess
any
level
of
expertlse;or.:background
when
determining
the’
halogen content of the used oil.
The Board notes that the Issue arises again
in Sections 739.163 and 739.153.
Th1s’~~’.fs~a~leg1timate
concern that also
‘
,~
.:
appears in Section 722.111(c) of Illinois
~“‘~-a~d4OCFRPart 262.11(c)
(the corresponding Federal. analog).~
requirernents.are
.
~
H”
fundamentally alike,
The U.S. EPA
‘‘*blish a more rigorous
management standard for.usedoil’;t,
;hazar~
aste.~Inan enforcement’”’
situation the inspector may not’fin
ietermination. acceptable and might
allege that an inadequate determir
Id notrebut’~’~
presumption.
As
the’ Board notes, Section 739.15
unskilled transporters by requirfr~
knowledge of the halogen content
01
such
a
requirement
to
Sections
739.~
make the Illinois regulation morei’
U.S. EPA would not object.
f. Section 739.156
In lines
1 and 2 of Section 739.lfl,
“delivereded” should be “delivered”~
g. Sectioni,39.ISZ
i. Inline 6
“and”.
of Section
739.
182
word “nad”. -t-iuld be
r;1~
‘-‘:1
...s”potent1al~
~lems
with.
~sors
to,,itate the basis of their
~edoIl,,:The Board may want to add
739.163.’.’
Such
a
requirement
would
‘,ltsFederal
equivalent,
but
and(a)(3) on page 391, the word
On page
3 of the Board Opinion accompanying Rules Package R93-4,
the Board
solicited comment on the May 24,1993, interim final
rule.
We have discussed
this with our Office of Regional
Counsel.
Our response is as follows:
The Board notes that U.S. EPA has ‘Issued an interim final
rule in response
to
the remand
in Chemical
Waste Mana~m~pt.
Inc. v. EPA, 976 F.2d 2 (D.C. Cir.
1992).
The Board proposes to wait until
the Thterim final
rule is made final
before codifying the Illinois equivalent.
The effect of the Chemical WasteJ~nagemeritdecision was to vacate the
deactivation treatment standards for certain ignitable and corrosive wastes.
U.S.
EPA’s interim final rule was promulgated as an emergency measure because,
if no treatment standard
is in
place,
land disposal
of these wastes
is
absolutely prohibited.
See 58
ER 29860
(May 24, 1993).
Because the Federal
standards for certain
ignitable and corrosive wastes were
vacated,
the State equivalents
may not be enforceable.
(hi_re Hardin County,
No. RCRA-V—W-89-R-29 May
27,
1993).:
As a result, if the Board fails to
promulgate
an Illinois equivalent to U.S.,EPA’s
interim final rule, land
disposal of the wastes affected by the Chemical
Waste ~ianagement
decision may
be absolutely prohibited
in Illinois.
.
.
.
.,
At least on other issues, U.S. EPA has taken the position that a state cannot
absolutely
ban
action
allowable
under
the
Federal
regulations, j.~.,that
an
absolute ban
is not merelyrnore stringent than Federal regulations, but rather
substantially different.
Accordingly, we recommend that the Board promulgate
an Illinois equivalent
to the.interim final
rule.
If U.S. EPA later modifies
the interim rule In response to comments, the Board should modify the state
equivalent accordingly.
.
.,
:‘
‘
.
,
As a result, the Board should consider adopting the rule in the next rules
package.
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