ILLINOIS POLLUTION CONTROL BOARD
    April 21,
    1994
    IN THE MATTER OF:
    )
    R93—16
    RCRA UPDATE, USEPA REGULATIONS
    )
    (Identical in Substance Rules)
    (1—1—93 THROUGH 6—30—93)
    )
    Adopted Rule.
    Final Order.
    SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
    (by E.
    Dunham):
    The Board adopted amendments to the Illinois hazardous waste
    regulations on March 17,
    1994 in this docket.
    That action under
    this docket included incorporating the federal amendments that
    occurred during the period of January
    1 through June 30,
    1993
    into the Illinois RCRA Subtitle C hazardous waste regulations and
    restoring text that was erroneously omitted from the base text
    during the course of prior update dockets.
    The Board issues this
    supplemental opinion and order to address additional public
    comments received subsequent to final adoption and to restore an
    additional segment of text inadvertently omitted from our March
    17 order.
    The Board received the following three public comments after
    the adoption on March 17,
    1994:
    PC 5 U.S. EPA Region
    5
    (4-8-94, by Norman R. Niedergang,
    Associate Division Director of RCRA, Waste Management
    Division)
    PC
    6 Lenz Oil Service,
    Inc.
    (4—13—94, by Mike Lenz,
    President)
    PC
    7 National oil Recyclers Association (4—20—94, by
    Christopher Harris, General Counsel)
    In PC 5, U.S. EPA comments that the Board has in our March 17,
    1994 order, adequately addressed its comments submitted in PC
    3
    on February 14,
    1994.
    PC 6 generally commends the Board’s
    approach to adopting the used and waste oil regulations, but
    makes additional comments on implementation issues.
    PC
    7
    endorses the Board’s proposal to adopt the used and waste oil
    regulations as adopted by U.S. EPA.
    It states that the proposed
    regulations will encourage recycling while imposing reasonable
    controls.
    The Notices of Proposed Amendments for this rulemaking
    appeared in the Illinois Register on January
    4,
    1994.
    Therefore,
    pursuant to the Administrative Procedure Act, the public comment
    period closed on February 28.
    The Board adopted the amendments
    on March 17,
    1994.
    We withheld filing the amendments with the
    Secretary of State for 30 days,
    as part of our primacy agreement
    with U.S.
    EPA,
    in order to allow the filing of any additional
    2
    comments by U.S. EPA on the adopted version of the amendments
    (PC
    5).
    Consequently,
    PC
    6 and PC
    7 are untimely.
    Nevertheless,
    since the Board is issuing this supplemental opinion and order,
    addressing these public comments will cause no delay.
    Neither PC
    7 nor PC
    6 will result in any change in the text of the adopted
    rules.
    However, the Board does not routinely address such late—
    filed comments.
    Identical—in—substance rulemakings are on a
    legislatively-mandated tight time schedule and late-filed
    comments could jeopardize the Board’s ability to timely meet its
    deadlines.
    PC
    6 expresses concerns over the status of water soluble
    oils that were used as coolants or cutting oils as “used oil”.
    The comment states that U.S. EPA considers these materials “used
    oil”,
    as contemplated by the used and waste oil regulations.
    The
    comment further states as follows:
    IEPA considers this waste
    a
    (sic
    “oily waste”.
    This
    distinction subjects water soluble oils to full TCLP
    parameters even when recycled in Illinois.
    This puts
    Illinois companies at a major disadvantage when
    competing outside Illinois for this waste.
    Companies
    outside Illinois only have the fuel specification tests
    to meet.
    Thus,
    the comment implies that Illinois EPA applies a definition
    of “used oil” that is more stringent than the federal definition.
    In response, the Board highlights the scope of the
    legislative mandate by which we adopted these rules.
    Sections
    7.2 and 22.4 of the Act require the Board to adopt rules that are
    “identical in substance” to those adopted by U.S. EPA under RCRA
    Subtitle C.
    This we have done.
    The Board’s Section 739.100
    definition of “used oil”
    is identical to the federal definition
    of 40 CFR 279.1:
    “Used oil” means any oil that has been refined from
    crude oil, or any synthetic oil, that has been used and
    as a result of such use is contaminated by physical or
    chemical impurities.
    Unless the Board were to engage in a general rulemaking under
    Section 27 of the Act on a petition from the Illinois EPA or some
    other interested person, subject to the public hearings and full
    Administrative Procedure Act requirements, this is the only
    definition we are free to adopt.
    Therefore,
    the Act requires
    that meanings applied to the federal definition are to be applied
    to the Illinois definition.
    Although the federal definition of “used oil” itself makes
    no reference to water soluble oils, the preamble discussion in
    the Federal Register indicates that U.S. EPA did address these
    3
    materials.
    U.S. EPA stated in the Federal Register preamble
    discussion that it received comments relating to “synthetic oil”,
    including water soluble and water—bearing water soluble oils.
    The commenters requested that U.S. EPA exclude copper drawing
    solution from the definition of “used oil”.
    U.S. EPA observed,
    “Copper drawing solution is an emulsion of
    1 to
    2 percent oil in
    water.”
    (57 Fed. Reg. 41574
    (Sept.
    10,
    1992).)
    The discussion
    stated that U.S. EPA revised the definition prior to final
    adoption to add “synthetic oil”.
    (57 Fed. Reg.
    41604
    (Sept.
    10,
    1992).)
    The discussion further stated as follows:
    EPA has concluded that synthetic oils that are not
    petroleum based
    (i.e.,
    those produced from coal or oil
    shale), those that are petroleum—based but are water
    soluble
    (e.q.,
    concentrates of metalworking
    oils/fluids), or those that are polymer—type,
    are all
    used as lubricants similar to petroleum—based
    lubricants,
    oils, and laminating surface agents.
    .
    Therefore,
    EPA believes that all oils,
    including used
    synthetic oils,
    should be regulated in a similar
    fashion and, hence,
    EPA has decided to include
    synthetic oils in the definition of used oil.
    For the
    large part, the definition of used oil includes used
    lubricants of all kinds that are used for a purpose of
    lubrication
    .
    57 Fed. Reg. 41574
    (Sept.
    10,
    1992).
    To address the concerns expressed in PC 6, the Board need
    not revise the Illinois definition to implement the federally—
    derived regulations.
    Because U.S. EPA contemplated that
    synthetic water soluble oil lubricants be included in the federal
    definition of “used oil”, the identical-in—substance definition
    must include them as well.
    The Illinois regulations will,
    as
    always, be consistent with those adopted by U.S.
    EPA.
    Thus,
    the
    impact of these rules on entities operating in Illinois will be
    no greater than that of the minimum federal standards applied in
    other states, as was intended by the General Assembly when they
    drafted Sections 7.2 and 22.4.
    As to the omitted language, the Board is correcting the
    adopted text of the rules to include the language.
    As more fully
    discussed in the March 17,
    1994 opinion, we adopted amendments to
    Part 728 in R91-13
    (January
    1 through June 30,
    1991;
    effective
    June 9,
    1992)
    that were excluded from the base text in R93-4
    (July
    1 through December 31,
    1992; effective November 22,
    1993).
    Much of the work involved in the present docket has been to make
    these restorations.
    We add one segment of text omitted from our
    March 17 order at this time because we have not yet filed the
    adopted amendments with the Secretary of State.
    The missing text
    (segment in bold type)
    is restored to Section 728.107(a) (3) (B)
    as
    follows:
    4
    Section 728.107
    Waste Analysis and Recordkeeping
    a)
    3)
    If a generator’s waste is subject to an exemption
    from
    a prohibition on the type of land disposal
    method utilized for the waste
    (such as, but not
    limited to,
    a case—by—case extension under Section
    728.105, an exemption under Section 728.106, an
    extension under Section 728.101(c) (3) or a
    nationwide capacity variance under 40 CFR
    268.Subpart C
    (1989), with each shipment of waste,
    the generator shall submit a notice with the waste
    to the facility receiving the generator’s waste,
    stating that the waste is not prohibited from land
    disposal.
    The notice must include the following
    information:
    B)
    The corresponding treatment standards for
    wastes FOOl— through F005,
    F039 and wastes
    prohibited pursuant to Section 728.132 or
    Section 3004(d)
    of the Resource Conservation
    and Recovery Act, referenced in Section
    728.139.
    Treatment standards for all other
    restricted wastes must either be included or
    ~~referenced a~abovc,
    or by including on
    the notification the oubcatcgory of the
    wa~tc,thc trcatability group(3)
    of the
    waotc(3)applicable wastewater or
    nonwastewater
    (as defined in Section 728.102)
    category, the applicable subdivisions made
    within a waste code based on waste-specific
    criteria
    (such as D003. reactive cyanides),
    and the Section and subsection where the
    applicable treatment standarde appear~.
    Where the applicable treatment standards are
    expressed as specified technologies in
    Section 728.142,
    the applicable five—letter
    treatment code found in Section 728.Table C
    (e.g.,
    INCIN, WETOX)
    also must be listed on
    the notification.
    IT IS SO ORDERED.
    5
    I,
    Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    do hereby certify that the above supplemental opinion and
    ord r wa~adopted by the Board on the
    ~/-~~‘
    day of
    _____________,
    1994, by a vote of
    ~
    -O
    Dorothy M.
    Illinois POi
    Control Board

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