ILLINOIS POLLUTION CONTROL BOARD

May

27,

1993

IN THE MATTER OF:

)

RCRA UPDATE, USEPA REGULATIONS

)

 R93-4

(7/1/92

—

 12/31/92)

)

 (Identical in Substance

)

 Rules)

Proposal 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.

 Adm. Code 703,

 720,

 721,

 722, 724,

 725,

 726 and

728.

 In addition, the Board proposes to adopt new Part 739.

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 second notice review by the Joint

Committee on Administrative Rules

 (JCAR).

 The federal RCRA

regulations are found at 40 CFR 260 through 270.

 In addition,

this update includes new federal Part 279

 State

 Part 739.

 This

rulemaking updates Illinois’ RCRZ~.rules to correspond with

federal amendments during the period July

 1 through December 31,

1992.

 The USEPA actions during this period are as follows:

57 Fed. Rec~.

 Date

 Summary

29220

 July

1,

1992

 Correction to typographical errors

1

 The Board will not file the adopted

 rules until

 30 days

after

 the ~date of

 this

 order,

 to allow

 time

for

 post—adoption

comments,

 particularly

 from

the

 agencies

 involved

in

the

authorization process.

n~)

2

30657

 July 10,

1992

 Correction to previous arsenical

treated wood product toxicity

characteristics.

37263

 Aug.

18,

1992

 Treatment Standards under the land

disposal program for certain

hazardous wastes.

37305

 Aug.

18,

1992

 Lists seven coal by—products as

hazardous; finalizes determination

not to list certain hazardous

wastes wastewaters.

37885,

37888

 Aug.

21,

1992

 State specific:

 Tennessee and

Michigan.

38564

 Aug.

25,

1992

 Clarification of technical

amendments to final rule for

boilers and industrial furnaces.

39275

 Aug.

28,

1992

 Correction of effective date.

41173

 Sept.

9,

1992

 Correction to rule document.

41611

 Sept.

10,

 1992 Addition of Used oil program;

deletion 266.Subpart E.

42835

 Sept.

16,

 1992 Amendment of financial assurance

requirements.

44999

 Sept.

30,

 1992 Correction of administrative error.

47385

 Oct.

15,

1992

 Listing of chlorinated toluenes as

hazardous waste.

47776

 Oct.

20,

1992

 Approval of an interim final case-

by-case extension of the LDR

regulations applicable to Third-

Third hazardous soils.

49279

 Oct.

30,

1992

 Removal of reinstatement expiration

date regarding of “mixture” and

“derived from” rules.

54460

 Nov.

18,

1993

 Landfill disposal of containerized

liquids mixed with sorbents.

55117

 Nov.

24,

1992

 Removal of the quality assurance

requirement found in Method 1311,

Toxicity Characteristic Leaching

Procedure.

L:.2_08

3

57674

 Dec.

7,

1992

 State specific; Connecticut

61502

 Dec.

24,

1992

 Modification of technical standards

£or drip pads.

This update also includes:

58 Fed. Reg.

6854

 Feb.

2,

1993

 Typographical correction.

Section 7.2 of the Environmental Protection Act limits

identical in substance batch periods to no more than six months.

However,

 in this rulemaking two amendments which occurred during

this batch period were addressed in the previous rulemaking, R92-

10.

 The actions were:

57 Fed. Reg.

29220

 July 1,

1992

 Correction to oil filter rule

57 Fed. Reg.

30658

 July 10,

1992

 Corrections to TCLP rules

The USEPA amendments include several site-specific

delistings.

 As provided in 35 Ill. Adm. 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.

In addition,

 in the May 24,

 1993 Federal Register, USEPA

issued an interim final rule in response to the remand in

Chemical Waste Management.

 Inc.

 v. EPA

 (976 F.2d 2

 (D.C.

 Cir.

1992).).

 The remand relates to Third-Third land disposal

restrictions.

 Because this is an interim final rule, the Board

proposes to take no action on it at this point of the public

comment period in this proceeding.

 Rather, the Board proposes to

await the final order and to respond to it within the normal

update period.

 The Board solicits comment as to whether the

interim final rule requires immediate response or whether the

Board may delay adopting the rule until

 it becomes final.

EXTENSION OF TIME ORDERS

Section 7.2

 (b) of the Act requires that identical in

substance ruleinakings 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 this Docket was July 1,

 1992.

 The Board

issued an extension of time order at its April

22,

 1993 Board

meeting.

 The Board anticipates no difficulty in adopting this

rulemaking,’ pursuant to the Extension of Time Order,

 by October

7,

 1993.

Efl~208L

4

REGULATORY HISTORY

The complete history of the

RCRA,

 UST and UIC 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.

 Also at the end

of this opinion, there is included a discussion of the approach

the Board uses to determine whether the Federal amendment calls

for an Agency or a Board Action, HSWA Driven Rules,

 Federal

Stays,

 and Editorial Conventions.

PART 703:

RCRA

Permit Program

Section 703.155

Section 703.155 is derived from 40 CFR 270.72, which was

amended at 57

 Fed.

 Reg.

 37281—82, on August 18,

 1992.

 This

section concerns changes to a facility during interim status and

is amended to include containment buildings.

 The Federal section

refers to RCRA section 3004, which

 is contained in part at 35

Ill. Adm. Code 728.139.

Section 703.181

Section 703.181 is derived from 40 CFR 270.13, which was

 amended at 57 Fed. Reg.

 37281,

 on August 18,

 1992.

 This section

concerns the contents of Part A permit applications and is

amended to include hazardous debris.

 In addition, the Board has

placed Board notes after every subsection to direct readers to

the corresponding Federal provision.

Section 703.183

Section 703.183 is derived from 40 CFR 270.14, which was

amended at 57 Fed. Req.

 37281,

 on August 18,

 1992.

 This section

concerns the contents of Part B permits and is amended to include

hazardous debris.

Section 703.280

Section 703.280 is derived from 40 CFR 270.42, which was

amended at 57 Fed. Reg.

 37281,

 on August 18,

 1992.

 This section

concerns permit modifications and is amended to include

containment buildings.

Section 703 .Appendix A

Section 703.Appendix A is derived from 40 CFR 270.42

Appendix

 I,’ which was amended at 57 Fed. Req. 37281,

 on August

18,

 1992.

 This section concerns classification of permit

modifications and is amended to include enclosed waste piles and

containment buildings.

~2-U81 2

5

PART 720:

 GENER~tLPROVISIONS

This Part specifies definitions,

 incorporations by reference

and other general provisions governing the hazardous waste

program.

 It is drawn from 40 CFR 260.

Section 720.110

This Section is derived from 40 CFR 260.10 which was amended

at 57 Fed. Req.

 37263, on August 18,

 1992;

 57 Fed. Reg. 38564, on

August 25,

 1992;

57

 Fed.

 Reg. 41611,

 on September 10,

 1992; and

57 Fed. Reg.

 54460,

 on November 18,

 1992.

 USEPA has added a

definition for “containment building”,

 “sorbent” and “used oil”;

and revised the definitions of “infrared incinerator”,

“miscellaneous unit”,

 “plasma arc incinerator” and “pile”.

The

definitions for “sorbent” and “used oil” are given below:

“Sorbent” means a material that is used to soak up free

liquids by either adsorption or absorption,

 or both.

 “Sorb”

means to either adsorb or absorb, or both.

“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 in contaminated by physical or chemical impurities.

The definition for used oil is discussed in more detail

later in this opinion in the section concerning new Part 739,

Used oil.

Section 720.120

This Section was adopted from 40 CFR 260.20, which was

amended at 57 Fed. Reg.

 38564, on August 25,

 1992.

 This Section

had previously contained procedures for petitioning the USEPA

Regional Administrator for modifications or revocations to

 federal Parts 260 through 265 and Part 268.

 This amendment

changes those Parts to 260 through Part 265 and Part 268,

however, the Board has already made this change in a past

rulemaking and takes no action at this time.

PART 721:

 IDENTIFICATION

AND

LISTING OF HAZARDOUS WASTE

This Part derived from 40 CFR 261.

 USEPA has amended these

rules in several isolated rulemakings, which will be identified

with each Section.

Section 721.102

This Section is derived from 40 CFR 261.2, which was amended

at 57 Fed. Reg.

 38564, on August 25,

 1992.

 This Section contains

the definition of solid waste.

 The amendment to Section

01 I~2-U8

6

721.102(e) (2) (D)

 adds inherently waste-like materials to

materials that are solid wastes even if the recycling process

involves use, reuse or return to the original process.

Section 721.103

This Section defines hazardous waste.

 This Section is

derived from 40 CFR 261.3, which was amended at 57

 Fed. Reg.

37263,

 on August 18,

 1992; at 57

 Fed.

 Reg.

 41611,

 on September

10,

 1992; and at 57

 Fed.

 Reg.

 49279,

 on October

30,

 1992.

Section 721.103 (a) (2) (C)

 is amended to state that

 nonwastewater mixtures are still subject to the requirements of

Part 728, even if they do not exhibit a characteristic at the

point of land disposal.

Section 721.103 (a) (2) (E)

 is amended by adding a rebuttable

presumption for used oil to the definition of hazardous waste.

This rebuttable presumption

 is added to reflect new part 739,

which regulates used oil.

 This rebuttable presumption

is

discussed in more detail later in this opinion in the discussion

concerning new Part 739.

Section 721.103(c) (2) (B) (iii)

 is amended to add “industrial

furnaces” to the list of units.

 Section 721.103(c) (2) (B) (iii)

is

also amended by revising nearly all the generic exclusion levels

for K061 and K062 nonwastewater HTMR residues.

 Section

721.103(c) (2) (B) (iii)

 is further amended by removing vanadium

from,

 and adding zinc to, the list of constituents in the generic

exclusion levels for K061 and K062 rionwastewater

HTMR

residues.

According to Section 721.103

 (c) (2) (B) (iii), nonwastewater

residues, such as slag, resulting from high temperature metals

recovery

(HTNR)

processing of 1(061,

 K062 or F006,

 are excluded

from the definition of hazardous waste if such wastes:

 meet the

generic exclusion levels; do not exhibit the characteristics of

hazardous waste; and are disposed of in a Subtitle D landfill.

 The generic exclusion levels are established to protect human

health and environment.

 Such levels are derived from health

based modeling using

EPAMCL

model.

Except

for

zinc

and

arsenic,

the exclusion levels are equal to or lower than the

HTMR

treatment

standards,

which

are

technology

based

standards.

The

USEPA notes that it did not adjust the exclusion levels to

reconcile them with the treatment standards since the different,

and occasionally overlapping, sets of numbers for treatment

standards and generic exclusion levels reflect the fact that they

are two different sets of regulatory controls on HTMR residues

from K061, K062 and FOO6 wastes.

 (57 Fed. Reg.

 37207)

Therefore,

 in order to be excluded from the definition of

hazardous waste,

the

HTMR

residues from K061,

 K062, and F006

wastes must meet both the

HTMR

treatment standards and the

Oit~.2-O8IL~

7

generic exclusion levels.

 In effect, the

HTMR

residues of the

subject wastes must meet the lower of either the treatment

standards or the exclusion levels for each constituent to qualify

for a generic exclusion.

The Board proposes to insert the following Board Note after

 721.103:

BOARD NOTE.

 The generic exclusion levels for arsenic and zinc

are higher than the HTMR based alternative treatment standards

for K062 and F006,

 and HTMR based treatment standards for K061,

specified in Section 728.141.

 However, the HTMR residues must

meet the applicable treatment standards prior to generic

exclusion.

 Therefore, to be eligible for a generic exclusion,

the treated residues must meet the lower of either the treatment

standards or the generic exclusion levels for each constituent.

The Board solicits comment on this matter.

In addition, Section 721.103(c) (2) (B) (iii)

 is amended to add

a requirement of a one—time notification and certification for

1(061, K062 or F006 HTMR residues.

 Section 721.103(f)

 is added to

identify materials which are not subject to regulation under 35

Ill.

 Adm. Code 720, 721 to 726,

 728,

 702, or 703.

57 Fed. Reg.

 49278—79, October 30,

 1992,

 amends Section

721.103 by deleting subsection

 (e).

 721.103(e)

 is a “sunset”

provision which would have normally been adopted

 in R92-10.

However, because of the lag-time in adopting the State equivalent

of Federal regulations, the Board had notice of the October 30,

1992 deletion.

 As a result, to avoid adopting a subsection which

was already deleted at the Federal level,

 the Board did not adopt

721.103(e)

 (see R92—lO,

p.

 2-3).

 Therefore, the Board takes no

action on the October 30,

 1992 deletion of subsection 721.103(e)

in this docket.

Section 721.104

In R92-10, the Board adopted two amendments to Section

721.104 that would normally fall within this update.

 The first

amendment was a correction to 40 CFR 261.4(b) (15)

721.104(b)

 (15)

 which appeared at 57 Fed. Reg.

 29220, July 1,

1992.

 The second was a correction to the TCLP rules which

appeared at 57 Fed. Reg.

 30658,

 on July 10,

 1992.

 The Board will

take no action on the July 1,

 1992 and July 10,

 1992 actions

previously dealt with in R92-1O.

 (see R92—10,

p.

 16-18)

As also noted in R92-10, 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 rule to parallel

the USEPA numbering.

 The Board cannot renumber (b)(15)

to

 (13),

without reviewing the entire rule set

 (Parts 702 through 728)

for

01 L:~2-iJ8

8

cross—references, and setting up a continuing program to keep

track of this anomaly in perpetuity.

 In R92-10, the Board

inserted “filler” sections into

 (b) (13) and

 (14).

 These filler

sections are unaltered by this rulemaking.

Section 721.104(a) (10), which contains exclusions from the

definition of hazardous waste, was revised at 57 Fed. Reg.

 37305,

August

18,

 1992, to add USEPA hazardous waste Nos. K060, K141,

K142,

 K143,

 K144,

 K145,

 K147 and K148.

Section 721.105

Section 721.105 governs special requirements for hazardous

waste generated by small quantity generators.

 Section 721.105(j)

is derived from 40 CFR 261.5(j), which was amended at 57 Fed.

Reg.

 41611,

 on September 10,

 1992.

 The amendment revises

subsection

(j),

 which concerns hazardous wastes mixed with used

oil, by deleting a previous reference to 35 Iii. Adm. Code

726.Subpart E, to reference subpart G of the new Part 739

regulations

 (which are proposed for adoption in this docket).

726.Subpart E concerned used oil burned for energy recovery.

Under Section 739.110(b) (3) mixtures of used oil and

conditionally exempt small quantity generator hazardous waste

regulated under 721.105 are regulated as used waste oil.

Section 721.106

Section 721.106 is derived from 40 CFR 261.6, which was

amended at 57 Fed. Reg.

 41611,

 on September 10,

 1992.

Two

subsections are removed and subsequent subsections require

redesignation.

 This amendment states that recycled used oil that

 exhibits a hazardous waste characteristic is regulated under new

Part 739,

 and not under parts 720 through 728 as it had

previously.

 Contrast this with 739.110 which states that n~n~

recycled used oil that exhibits a characteristic is regulated as

a hazardous waste unless the characteristic it exhibits is

ignitibilty.

Section 721.131

Section 721.131 is derived from 40 CFR 261.31, which was

amended at 57 Fed. Reg. 61502—03, on December 24,

 1992.

The

amendment states that where F032,

 F034 and F035 wastewaters have

not come into contact with process contaminants, they are not

listed as hazardous wastes, which the Board had previously stated

in a Board Note following the listings fore F032,

 F034,

 and F035.

The Board Note also stated that the F034 and F035 listings are

administratively stayed with respect to the process area.

 This

State stay ‘reflected a stay for that provision at the Federal

level.

 The Federal stay is lifted with this amendment and

therefore the Board will also eliminate the stay at the State

level.

 As a result, the Board will eliminate the Board Notes

L:.2-081

9

that previously appeared in 721.131 after the listing for F032,

F034,

 and F035.

The Board solicits comment as to whether it has correctly

interpreted the Federal amendments as having the effect of

 lifting the stays.

Section 721.132

Section 721.132 is derived from 40 CFR 261.32, which was

amended at 57 Fed. Reg.

 37305,

 on August 18,

 1992; and at 57 Fed.

Reg.

 47385, on October

15,

 1992.

 The first amendment added

several hazardous wastes to the “Coking” subgroup.

 The second

amendment added several waste streams to the “Organic Chemicals”

subgroup and to Appendix G.

Section 721.Appendix B

Section 721.Appendix B is derived from 40 CFR 261.Appendix

II, which was amended at 57 Fed.

 Reg. 55117,

 on November 24,

1992; and at 58 Fed. Reg.

 6854,

 on February 2,

 1993.

 This

appendix addresses Method 1311 Toxicity Characteristic Leaching

Procedure and is incorporated by reference into the Board rules.

The second amendment is outside the time period for this

rulemaking, but corrects a typographical error present in the

first amendment.

 As the per the Board’s past practice, the Board

proposes to adopt this correction, even though it is outside the

usual time period to avoid adopting an incorrect rule.

Section 72l.Appendix G

Section 721.Appendix G is derived from 40 CFR 621.Appendix

VII, which was amended at 57

 Fed. Reg.

 37305, on August 18,

1992

and at 57 Fed. Reg. 47385 on October

15,

 1992, to add several

waste streams to the basis for listing hazardous waste index.

Part 722:

 STANDARDS APPLICABLE TO GENERATORS OF

HAZARDOUS

WASTE

Part 722 provides the standards applicable to generators of

hazardous waste.

 This Part was amended once,

 as indicated below.

Section 722.134

Section 722.134 is derived from 40 CFR 262.34, which was

amended at 57 Fed. Reg.

 37264, on August

18,

 1992.

 The Board has

substantially restructured this section in past rulemakings to

condense subsections.

 The Federal Register amends this section

by removing the semi-colon at the end of the introductory text

and replacing it with a colon.

 The Board has already made this

change.

These amendments add requirements concerning containment

0!b..2-0817

10

buildings.

 Sections defining and regulating containment

buildings constitute a significant aspect of this rulemaking.

Containment buildings are defined at

35

 Ill. Adm. Code 720.110 as

“A hazardous waste management unit that is used to store or treat

hazardous waste under the provisions of Subpart DD of Parts 724

and 725.”

 Subpart DD of parts 724 and 725 are also added in this

rulemaking.

The amendments to this part require that after February 18,

1992,

 a Professional Engineer certification that the containment

building meets the design standards specified in 35 Ill. Adm.

725.1101 40

 CFR 265.1101) be kept in the facility’s operating

records.

 Because this is a HSWA driven regulation, February 18,

1992 became the effective date for that provision in Illinois,

upon the adoption of the Federal amendment on August

18,

 1992.

Therefore, the Professional Engineer certification provision

became effective August

18,

1992

 in Illinois.

PART 724:

 STANDARDS FOR PERMITTED HWM FACILITIES

This Part contains the standards for owners or operators of

hazardous waste management

 (HWN)

 facilities with

RCRA

permits.

Standards for interim status facilities are in Part 725, below.

This Part is drawn from 40 CFR 264.

Section 724.101

Section 724.10l(f)(2)

 is derived from 40 CFR 264.101(g) (2),

which was revised at 57 Fed. Reg. 38564, on August 25,

 1992.

724.101 provides the purpose, scope and applicability of Part

724.

 724.101(f) (2) was amended to delete subpart D of Part 726

and add subpart H of Part 726 as parts which apply to the owners

or operators of recycling facilities.

 Subpart D of Part 726

concerns hazardous waste burned for energy recovery.

 Subpart H

of Part 726 concerns hazardous waste burned in boilers and

industrial furnaces.

 The Board will add a Board Note to alert

readers that 724.101(f)

 correlates to 264.101(g).

Section 724.113

Section 724.113(c) (3)

 is derived from 40 CFR 264.13(c) (3),

which was added at

 57 Fed. Reg.

 54460,

 on November 18,

 1993.

This new subsection adds information that an owner or operator of

an off-site landfill must include in the facility’s waste

analysis plan.

Section 724.210

Section 724.210

 is derived from 40 CFR 264.110, which was

amended at 57 Fed. Reg.

 37264,

 on August 18,

 1992 to correct

typographical errors.

 In addition, the amendment applies

L~.-Q3

11

sections 724.216 through 724.220 to containment buildings.

Section 724.211

Section 724.211

 is derived from 40 CFR 264.111, which was

amended at 57 Fed.

 Reg.

 37265, on August

18,

 1992 to require an

owner or operator of a facility to conform to new section

724.1102

 (49 CFR 264.1102).

 New section 724.1102 concerns

closure and post—closure of containment buildings.

Section 724.212

Section 724.212

 is derived from 40 CFR 264.112, which was

amended at 57 Fed.

 Reg.

 37265, on August 18,

 1992 to include new

section 724.1102

 (40 CFR 264.1102) among the regulations with

which closure plans must conform.

 In addition, the Board

proposes to correct a typographical error:

 Section 724.515

 becomes 724.215 in subsection 724.212(a) (2).

Section 724.240

Section 724.240

 is derived from 40 CFR 264.140, which was

amended at 57 Fed.

 Reg.

 37265, on August 18,

 1992 to correct

typographical errors and add landfill requirements to some

containment buildings.

Section 724.242

Section 724.242

 is derived from 40 CFR 264.142, which was

amended at 57 Fed.

 Reg.

 37265, on August 18,

 1992,

 to include new

section 724.1102

 (40 CFR 264.1102) among the regulations to be

considered in the cost estimate for closure.

Section 724.243

Section 724.243 is derived from 40 CFR 264.143, which was

amended at 57 Fed. Reg. 42835—36,

 on September 16,

 1992.

 This

section concerns financial assurance for closure.

 The section is

revised to allow “the direct or higher—tier parent corporation”,

“a firm whose parent corporation is also the parent corporation

of the owner or operator, or a ‘firm with a substantial business

relationship’ with the owner or operator” to act as a

 “guarantor”

for the financial assurance for closure provisions.

 In addition,

the amendment revises the requirement that a letter from the

guarantor’s chief financial officer accompany required

documentation.

Section 724.245

Section 724.245 is derived from 40 CFR 264.145, which was

amended at 57 Fed. Reg.

 42836,

 on September 16,

 1992.

 This

amendment is substantially the same as the changes made in

Section 724.243, except that this section refers to financial

i~’t

 r~r~

12

assurance for post—closure care.

Section 724.247

Section 724.247

 is derived from 40 CFR 264.147, which was

amended at

57

 Fed. Reg.

 42836,

 on September 16,

 1992.

 This

section concerns liability requirements and these amendments

represent significant changes to the provisions, primarily the

addition of a Certification of Valid Claim.

 In addition, the

subsections are redesignated.

State subsection 724.247 (a) (7) (A) concerns a “claim” which

results in a reduction in the amount of financial assurance for

liability coverage Section 724.251.

 Prior to these amendments,

the subsection was not limited to reductions caused by a “Claim”

but was instead concerned with any reduction.

The new federal rules add a requirement that where a

“Certification of Valid Claim” for bodily injury or property

damages is entered into between the owner or operator and a third

party claimant, the owner or operator must notify the Agency.

This certification is explained in detail at 724.151(h)(2),

 (k),

(1),

(in)

and

 (n).

 This requirement will appear as subsection

724. (a) (7) (B)

724.247(a) (7) (C) concerns a “final court order establishing

a judgment for bodily injury or property damage caused by the

sudden or non—sudden accidental occurrence”.

 Thus the subsection

requires a final court order concerning an accidental occurrence

New subsection 724.247(h) (4) requires trustees to be

regulated by a Federal or State agency.

 Similar regulations have

been discussed in past rulemakings

 (R92-l,

p.

10;

 and,

 in more

depth,

 at R89-1,

p.

 24).

 In those rulemakings as in this one,

the Board concluded that there are no practical situations where

a federally regulated entity doing business in Illinois will not

also be regulated by the State.

 In accordance with past Board

practice, the Board proposes to use the language “regulated and

examined by the Illinois Commissioner of Banks and Trust

Companies,

 or who complies with the Corporate Fiduciary Act

 (Ill.

Rev. Stat.

 1991,

ch.

17,

 par.

 1551-1 et seq.)

 in lieu of

“regulated and examined by a Federal or State agency”.

The Board solicits comment on this matter.

Section 724.251

Section 724.251 incorporates by reference 40 CFR 264.151,

which was amended at 57 Fed. Reg.

 42836—43, on September 16,

1992.

 This section provides the form for the Certification of

Valid Claim discussed above.

U

I

—

u

13

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.

Section 724.414

This Section concerns special requirements for bulk and

containerized bulk.

 It is derived form from 40 CFR 264.314 and

was amended at 57 Fed.

 Reg.

 54460,

 on November

18,

 1992.

The amendments to 724.414(a) regulates activity that

occurred prior to May 8,

 1985.

 Consistent with past Board

practice, the Board has not adopted this subsection or the

amendments to it.

 Instead the Board proposes to adopt a “filler”

correlation to with the Federal regulations.

 Old state section

724.414(a)

 is moved down and becomes 724.414(b).

 This correlates

to the Federal Regulations.

 Old state 724.414(b) becomes

724.414(c); and old state 724.414(c) becomes 724.414(a).

 Prior

to this rulemaking,

 there was no state 724.414(d).

New Federal section 264.314(e)

 is added and concerns

nonbiodegradable sorbents.

 This new section arguably concerns

the same subject matter as section 724.414(f) which requires the

addition of absorbents to free liquids prior to disposal.

The

Board concludes that 264.314(e)

 and 724.414(f)

 cover the same

subject matter and that 264.314(e)

 is more stringent,

particularly in its specificity.

 Therefore, the Board proposes

to adopt the new Federal Section and delete 724.414(f).

For

comparison purposes, the two sections are as follows.

Moreover, the Board concludes that the amendment calls for

an adjusted standard procedure where it allows

 a petition to show

that a material is nonbiodegradbale even where it is not listed

or does not met one of the listed tests.

 In addition, the USEPA

amendment

 cites the 40 CFR 260

35

 Ill. Adm. Code 720

 petition

process.

 The Board believes there is no petition process spelled

out in Part 720 which governs here.

 Therefore the Board proposes

to cite the Board’s regulation 35 Ill.

 Adm. Code 106.

 The Board

solicits comment on this matter.

New Federal 724.414(e):

e)

 Sorbents used to treat free liquids to be disposed of

in landfills must be nonbiodegradable.

Nonbiodegradable sorbents are: materials listed or

described in subsection

 (e) (1)

 below; materials that

pass one of the tests in subsection (e~(2)

 below: or

materials that are determined by the Board to be

nonbiodegradable throuoh the 35 Ill.

 Adm. Code 106

~.7-O821

14

adiusted standard process.

 Nonbiodegradable sorbents are:

~j

 Inorganic minerals,

 other inorganic

materials,

 and elemental carbon

 (e.g.~,

aluminosilicates,

 clays, smectites, Fuller’s

earth.

 bentonjte, calcium bentonite~,

montmorillonite, calcined montmorillonite,

kaolinite. micas

 (illite), vermiculites,

zeolites; calcium carbonate (organic free

limestone);

 oxides/hydroxides, alumina,

 lime,

silica

 (sand), diatoinaceous earth; perlite

(volcanic glass); expanded volcanic rocki

volcanic ash: cement kiln dust;

 flv ash; rice

hull ash; activated charcoal (activated

carbon)):

or

~

 High molecular weight synthetic polymers

(e.g..

 polyethylene. high density

polyethylene

 (HDPE)I polypropylene,

polystyrene. poly urethane. ~olycrylate.

polynorborene, polyisobutylene, ground

synthetic rubber, cross—linked allylstrene

and tertiary butvl co~o1ymers). This does

not include polymers derived from biological

material or polymers specifically designed to

be degradable; or

.QL

 Mixtures of these nonbiodegradable materials.

 Tests for nonbiodegradable sorbents:

 The sorbent material is determined to be

nonbiodegradable under ASTM Method G21-70

(l984à)

 Standard Practice for Determining

Resistance of Synthetic Polymer Materials to

Fungi; or

~j

 The sorbent material is determined to be

nonbiodegradable under ASTM Method G22-76

(1984b)

 Standard Practice for Determining

Resistance of Plastics to Bacteria.

Old State 724.414(f):

f)

 Disposal of liquid wastes or wastes containing free

liquids otherwise allowed under this Section must be

authorized pursuant to

 35 Ill. Adm. Code 709.401(a).

As required by 35 Ill. Adm. Code 709.520(c), the Agency

must require the addition of absorbents to any such

waste, any provision of this Section notwithstanding.

~

15

The Board solicits comment on this matter.

State section 724.414(e)

 becomes subsection

 (f).

Section 724.416

Section 724.416 is derived from 40 CFR 264.316, which was

amended at 57 Fed. Reg.

 54460,

 on November 18,

 1993.

 This

section replaces “absorbent” material with the newly defined

“sorbent” material.

 In addition, the amendment requires the

sorbent material to be determined to be nonbiodegradable in

accordance with Section 724.414.(e).

SUBPART W:

 DRIP PADS

This Subpart governs “drip pads”,

 a type of hazardous waste

management unit on which wood products are stored following

application of wood preservatives.2

These drip pad provisions were stayed at the Federal level

on June 13,

 1991, and February

6,

 1992.

 The provisions were also

stayed at the State level as indicated by the Board Notes that

appeared in Section 724.673.

 The stays were terminated as a

result of the Federal amendments reflected here.

 Therefore, the

Board will remove the Board Notes in Section 724.673 which

imposed a State stay of the requirements of the provisions.

The

Board solicits comment on this matter and requests comments as to

whether any other Sections are affected by the removal of the

stays.

The Board notes that a typographical error probably appears

in 57 Fed. Reg.

61493

 in the “Background”

 section, where a “June

6,

 1992,” stay is referred to.

 The Board believes there were

two stays, one that occurred on June 13,

 1991, and the other that

occurred on February 6,

 1992.

 The Board solicits comment on this

matter.

There is a further complication to the effective dates of

these provisions.

 The complication lies in the fact provisions

added in connection with F032 are HSWA driven and those

concerning F034 and F035 are not HSWA driven.

 Therefore, the

changes made to provisions concerning F032,

 including

modifications to drip pad standards, took effect on December 24,

1992.

 The provisions concerning F034 and F035 take effect upon

 adoption of the State rule.

2 Drip pads were a major topic in R91-l and R91-26.

 Readers

may wish to reference those rulemakings for background material.

~2-O323

16

Moreover,

 in the preamble to these amendments, USEPA reports

that there are four exceptions to the above effective dates:

1.

 With respect to meeting the drip pad

permeability requirements of this final rule

(264.573 (a) (4) (i))

 724.673(a)

 (4) (A)

and

(265.443(a)(4)(i))

 725.543(a)(4)(A),

the

Agency is establishing a new effective date

of June 24,

 1993,

 by which time owners or

operators must comply with the standard.

2.

 With respect to the requirement that new drip pads for

which owners or operators have chosen liners and leak

collection system

 (264.573(b) (3))

 724.673(b)

(3)

and

(265.443(b)(3))

 725.543(b)(3),

 the Agency is

establishing an effective date of June 24,

 1993.

3.

 With respect to the provisional elimination of the F032

waste code,

 the Agency

 is establishing an effective

date of June 24,

 1993.

4.

 With respect to the requirements for contingency plans

for incidental drippage

 in storage yards

(264.570(c)(1))

 724.670(c)

(1)

 and (265.440(c) (1))

725.540(c)

 (1),

 the Agency is establishing an

effective date of June 24,

 1993.

The Board solicits comment as to whether the above

exceptions concern HSWA driven regulations and whether a HSWA or

non-HSWA driven status effects the effective date.

Section 724.670

Section 724.670 is derived from 40 CFR 264.570, which was

amended at 57 Fed. Reg. 61502-03, on December 24,

 1992.

The

amendments specify which drip pads are regulated by Section

724.673(b)(3).

 In addition, subsection

(c)

 is added to exempt

the management of infrequent and incidental drippage from the

requirements of this subpart under certain enumerated conditions.

Section 724.671

Section 724.671 is derived from 40 CFR 264.571, which was

amended at 57 Fed.

 Reg.

 61503, on December 24,

 1992.

 These

amendments delete the requirement of documenting, to the extent

possible, the age of the drip pad.

Section 724.672

Section 724.672 is derived from 40 CFR 264.572, which was

amended at 57 Fed. Reg.

 61503,

 on December 24,

 1992.

 This

section requires an

owner

 or operator of new drip pads to ensure

L~2-O~32i~.

17

that the pads are designed,

 installed, and operated in accordance

with either 724.673

 (except 724.763(a) (4)),

 724.674 and 724.676;

or with 724.673

 (except 724.763(b)),

 724.674 and 724.676.

Section 724.673

Section 724.673

 is derived from 40 CFR 264.573, which was

amended at 57 Fed.

 Reg.

 61503,

 on December 24,

 1992.

 These

amendments add design and operating requirements for drip pads.

724.673(b)

 is revised to add specific requirements where an owner

or operator elects to comply with 724.672(b)

 instead of

724.572 (a)

The Board solicits comment on this matter.

Section 724.1100 through 724.1102

New subpart 724.Subpart DD regulates containment buildings.

This new subpart is derived from 40 CFR 264.1100 through

264.1102, which was adopted at 57 Fed. Reg.

 37265,

 on August

18,

1992 and became effective on the same day.

 This is a HSWA driven

regulation.

The new containment building provisions regulate,

 in part,

units the USEPA had previously classified as indoor waste piles.

Generally, these indoor waste piles contain non—liquid,

 large—

volume hazardous wastes, which were not amendable to management

in tanks or containers.

 Today’s regulations include containment

buildings among those units covered by 35 Ill. Adm. Code 728.150

as permissible for the storage of prohibited waste.

 In addition,

containment buildings are made subject to the prohibition on

 extended storage.

 The regulations include design and operation

standards and allow those containment buildings which meet all

technical requirements to be eligible under 35 Ill.

 Adia. Code

726.134 for the 90 day generator provisions.

 The management of

hazardous waste in a containment building is not land disposal.

Containment buildings operating under Part 725,

 interim

status must meet the same operating and design standards.

However, there are some differences in Parts 724 and 725 in terms

of whether the provisions call for USEPA, Agency or Board action.

The Board will note where the parts differ throughout the

opinion.

The Table of Contents to Part 724 is revised to:

Subpart DD-Containment Buildings

Section

264.1100

 Applicability.

264.1101

 Desian and onerating standards.

264.1102

 Closure and post—closure care.

i~2-P325

18

724.1100

 Applicability.

The requirements of this subpart apply to owners or

operators who store or treat hazardous waste

 in units designed

and operated under 724.1101.

 These provisions will become

effective on February 18,

 1993,

 although the owner or operator

may notify the USEPA of his intent to be bound by this subpart at

an earlier time.

 The owner or operator is not subject to the

definition of land disposal in 35

 Ill. Adm. Code 728.102 provided

that the unit:

(Emphasis added)

In light of the fact these are HSWA driven regulations which

became effective upon adoption of the Federal rule, the Board

believes the USEPA intended these subsections to be time

specific.

 The Board proposes to adopt the Section 724.1100

introductory language as given to maintain correlation with the

Federal regulations in the event there are potential State

enforcement responsibilities after the State takes over primary

enforcement authority.

The above notification must have been made by February 18,

1993, which is prior to State adoption, the Board will retain the

notification requirements to a Federal entity.

 However, as per

Board practice, the Board will change “Regional Administrator” to

“TJSEPA”

 (see the discussion at the end of this opinion on Agency

or Board actions).

 The Board solicits comment on this matter.

The regulations continue:

724.1100

a)

 Is a completely enclosed, self—supporting structure

that is designed and constructed of manmade materials

of sufficient strength and thickness to support

themselves, the waste contents, and any personnel and

heavy equipment that operate within the unit, and to

prevent failure due to pressure gradients,

 settlement,

compression,

 or uplift, physical contact with the

hazardous wastes to which they are exposed; climatic

conditions; and the stresses of daily operation

 including the movement of heavy equipment within the

unit and contact of such equipment within the unit and

contact of such equipment with containment walls;

The Board proposes to restructure the above subsection for

clarity, as follows:

a)

 Is a completely enclosed, self—supporting structure

that is designed and constructed of manmade materials

nI;r)

19

of sufficient strength and thickness to support

themselves, the waste contents, and any personnel and

heavy equipment that operate within the unit,

 and to

prevent failure due to:

1)

 pressure gradients;

2)

 settlement,

 compression,

 or uplift;

3)

 physical contact with the hazardous wastes to

which they are exposed;

4)

 climatic conditions; and

5)

 the stresses of daily operation, including the

movement of heavy equipment within the unit and

contact of such equipment with containment walls.

The Board solicits comment as to whether this restructuring

properly reflects the intended meaning of the provision.

The regulations continue:

724.1100

c)

 If the unit is used to manage liquids, has:

For clarity purposes, the Board proposes to restructure the

above subsection as follows:

c)

 If used to manage liquids,

 the unit has:

The regulations continue:

Section 724.1101

 Design and operating standards

a)

 All containment buildings must comply with the

following design and operating standards:

The Board has added “and operating” to the above subsection

because 724.1101(a) (3)

 is more correctly an operating requirement

as opposed to a design requirement.

 The Board solicits comment

on this matter.

The regulations continue:

Section 724.1101

a)

i

~•?t~_

UU~.

20

2)

 The floor and containment walls of the unit,

including the secondary containment system if

required under subsection

(b)

 below, must be

designed and constructed of materials of

sufficient strength and thickness to support

themselves,

 the waste contents, and any personnel

and heavy equipment that operate within the unit,

and to prevent failure due to pressure gradients,

settlement, compression,

 or uplift, physical

contact with the hazardous wastes to which they

are exposed; climatic conditions; and the stresses

of daily operation,

 including the movement of

heavy equipment within the unit and contact of

such equipment with containment walls.

 The unit

must be designed so that it has sufficient

structural strength to prevent collapse or other

failure.

 All surfaces to be in contact with

 hazardous wastes must be chemically compatible

with those wastes.

 EPA will consider standards

established by professional organizations

generally recognized by the industry such as the

American Concrete Institute ACI

 and the American

Society of Testing Materials ASTM1

in

luciging

the

structural integrity requirements of this Section.

If appropriate to the nature of the waste

management operation to take place in the unit, an

exception to the structural strength requirement

may be made for light-weight doors and windows

that meet these criteria:

(Emphasis added)

The Board proposes to revise the above underlined language

as follows:

The containment building must meet the structural

integrity requirements established by professional

organizations generally recognized by the industry

such as the American Concrete Institute

ACI

and

the American Society of Testing Materials

 ASTM).

The Board believes that this approach creates an affirmative

duty on the owners or operators and provides the Agency with

criteria for the permit application.

 The Board solicits comment

on this matter.

The regulations continue:

Section 724.1101

b)

 For a containment building used to manage hazardous

21

wastes containing free liquids or treated with free

 liquids

 (the presence of which is determined by the

paint filter test,

 a visual examination, or other

appropriate means), the owner or operator must include:

3)

 A secondary containment system including a

secondary barrier designed and constructed to

prevent migration of hazardous constituents into

the barrier, and a leak detection system that is

capable of detecting failure of the primary

barrier and collecting accumulated hazardous

wastes and liquids at the earliest practicable

time.

C)

 The secondary containment system must be

constructed of materials that are chemically

resistant to the waste and liquids managed in

the containment building and of sufficient

strength and thickness to prevent collapse

under the pressure exerted by overlaying

materials and by any equipment used in the

containment building.

 (Containment buildings

can serve as secondary containment systems

for tanks placed within the building under

certain conditions.

 A containment building

can serve as an external liner system for a

tank, provided it meets the requirements of

Section 725.293(d)(1).

 In addition, the

containment building must meet the

requirements of Section 725.193(b) and

(C)

to

be considered an acceptable secondary

containment system for a tank.)

(Emphasis added)

The Board proposes to eliminate “considered” from the above

 subsection.

 The word raises the question “Considered by whom?”

In addition, the Board believes the meaning is the same with

“considered” eliminated.

 The Board solicits comment on this

matter.

The regulation continues (section

(b)

 is repeated for clarity):

Section 724.1101

b)

 For a containment building used to manage hazardous

wastes containing free liquids or treated with free

liquids (the presence of which is determined by the

paint filter test,

 a visual examination,

 or other

appropriate means), the owner or operator must include:

I~

—

0

LJU

22

4)

 For existing units other than 90-day generator

units, the Regional Administrator may delay the

secondary containment requirement for up to two

years, based on a demonstration by the owner or

operator that the unit substantially meets the

standards of this subpart.

 In making this

demonstration, the owner or operator must:

A)

 Provide written notice to the Regional

Administrator of their request by November

16,

 1992.

 This notification must describe

the unit and its operating practices with

specific reference to the performance of

existing systems, and specific plans for

retrofitting the unit with secondary

 containment;

B)

 Respond to any comments from the Regional

Administrator on these plans within 30 days;

and

C)

 Fulfill the terms of the revised plans,

if

such plans are approved by the Regional

Administrator.

(Emphasis added)

This subsection raises uncertainty as to the State’s

enforcement responsibility.

 Given that the prescribed deadline

was prior to State adoption, plans could have only been submitted

to USEPA.

 However, because there are no decision deadlines,

it

is uncertain what the status of the plan will be at the point the

State gains authorization.

 Moreover, there are no criteria given

for plan approval or appeal.

 The Board solicits comment as to

what enforcement responsibility is placed on the State by this

provision and the Board further solicits comment as to whether

this subsection is appropriately adopted by the States at all.

The Board proposes to adopt these subsections as they are to

maintain correlation with the Federal regulations,

 in the event

that a showing of a USEPA approved delay of the containment

requirement is necessary to demonstrate compliance.

 The Board

will not replace “Regional Administrator” with “Agency” or “the

Board” but will replace it with “USEPA” to conform with past

Board practice (see the discussion at the end of this opinion on

Agency or Board actions).

 The Board solicits comment on this

matter.

In addition, the Board alerts readers that the corresponding

section in 725.1101 takes a similar approach.

~‘1

‘)

C!

23

The regulations continue:

Section 724.1101

 Owners or operators of all containment buildings must:

3)

 Throughout the active

 life of the containment

building,

 if the owner or operator detects a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly,

 in accordance with the

following procedures.

A)

 Upon detection of a condition that has lead

~

 a release of hazardous wastes

 (e.g., upon

detection of leakage from the primary

barrier) the owner or operator must:

(Emphasis added)

The above language is underlined to emphasize the lack of

clarity of the above sections.

 The Board proposes to revise the

above section as follows:

 Owners or operators of all containment buildings must:

3)

 Throughout the active life of the containment

building,

 if the owner or operator detects a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly,

 in accordance with the

following procedures.

 In addition however:

A)

 Upon detection of

 a condition that has caused

lead to a release of hazardous wastes

 (e.g.,

upon detection of leakage from the primary

barrier) the owner or operator must:

The Board solicits comment as to whether this revision

reflects USEPA’s intent.

The regulations continue as amended above:

Section 724.1101

c)

 Owners or operators of all containment buildings must;

3)

 Throughout the active life of the containment

building,

 if the owner or operator detects a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly.

 In addition however:

24

A)

 Upon detection of a condition that has caused

a release of hazardous wastes

 (e.g., upon

detection of leakage from the primary

barrier) the owner or operator must:

i)

 Enter a record of the discovery in the

facility operating record;

ii)

 Immediately remove the portion of the

containment building affected by the

condition from service;

iii) Determine what steps must be taken to

repair the containment building, remove

any leakage from the secondary

collection system, and establish a

schedule for accomplishing the cleanup

and repairs; and

iv)

 Within

 7 days after the discovery of the

 condition,

 notify the Regional

Administrator Agency in writing of the

condition in writing, and within 14

working days,

 provide a written notice

to the Regional Administrator Agency,

with a description of the steps taken to

repair the containment building, and the

schedule for accomplishing the work.

B)

 The Regional Administrator Agency shall

review the information submitted, make a

determination

 in accordance with Section

34

of the Act, regarding whether the containment

building must be removed from service

completely or partially until repairs and

cleanup are complete, and notify the owner or

operator of its determination and the

underlying rationale in writing.

C)

 Upon completing all repairs and cleanup the

owner or operator shall notify the Regional

Administrator Agency in writing and provide a

verification, signed by a qualified,

registered professional engineer, that the

repairs and cleanup have been completed

according to the written plan submitted in

accordance with subsection

 (c) (3) (A) (iv)

above.

(Emphasis added)

In subsection

 (iv),

 the Board has added the requirement that

‘~

Ut)

25

the notification be in writing.

 The Board solicits comment on

this matter.

The Board has determined that this section comes under the

Agency’s power to seal, pursuant to Section

 34 of the Act,

because the regulation gives the Agency only the power to

determine whether the unit must be taken out of service.

 It does

not give the Agency the power to approve or disapprove the

cleanup plan or to determine whether the owner or operator is in

compliance with the plan.

 Under Section 34(d)

 the owner or

operator may appeal the Agency’s decision to seal the unit to

members of the Board or seek injunctive relief.

 The Board

rejected other approaches because of the fact that it is a “cease

operations” determination,

 of which any appeal should be resolved

quickly.

 The Board solicits comment on this matter.

The Board proposes to replace “Regional Administrator” with

“Agency” in all instances above.

 The Board solicits comment on

this matter.

The regulations continue:

Section 724.1101

e)

 Notwithstanding any other provision of this subpart the

Regional Administrator may waive requirements for

secondary containment for a permitted containment

building where the owner or operator demonstrates that

the only free liquids in the unit are limited amounts

of dust suppression liquids required to meet

occupational health and safety requirements, and where

containment of managed wastes and liquids can be

assured without a secondary containment system.

(Emphasis provided)

The Board believes the above subsection may be interpreted

two ways.

 The first

 is that this subsection contemplates an

adjusted standard proceeding in that a “waiver” is involved.

However, the Board suggests that in this case, the subsection may

be actually requiring a determination based solely on the limited

type and amount of liquid in the containment building, exclusive

of any other waste management concerns.

 The Board proposes that,

with this interpretation,

 this determination may be handled

through a permit condition.

 To better express this, the Board

proposes to change the above language to:

e)

 Notwithstanding any other provision of this subpart t~e

Regional Administrator may waive requirements for

tJi~.

Agency shall not require secondary containment for a

permitted containment building if the owner or operator

~2-O833

26

demonstrates to the Agency that the only free liquids

in the unit are limited amounts of dust suppression

liquids as required to meet occupational health and

safety requirements, and where containment of managed

wastes and liquids can be assured without a secondary

containment system.

The Board directs readers to the discussion later

 in this

opinion concerning corresponding section 725.1101.

 Because

owners or operators under 725 Interim Status do not have a

 permit, the Board could not take the same approach as in the

above Section.

 Therefore, the Board will treat 725.1101(e)

 as an

adjusted standard provision pursuant to section 28.1(b)

 of the

Act, utilizing the above Board language as the level of

justification.

 The Board solicits comment on this matter.

The Board directs readers to the discussion at the end of

this opinion concerning Agency or Board action and solicits

comment on this matter regarding the interpretation of the permit

process and conditions,

 and whether an adjusted standard would be

more appropriate for permitted as well as interim status

facilities for procedural consistency.

PART 725:

 INTERIM STATUS STANDARDS

This Part is drawn from 40 CFR 265.

 This Part contains the

design and operating requirements for hazardous waste management

facilities with interim status.

 The Part 265 725

 rules are

nearly identical to the Part 264

 724)

 rules,

 above, which apply

to permitted facilities.

 However, interim status rules often

need decision—making procedures in the absence of a permit

system.

SUBPART

 GENERAL

FACILITY

STANDARDS

This Subpart contains general rules governing all types of

interim status hazardous waste facilities.

Section 725.101

Section 725.101

 is derived from 40 CFR 265.1, which was

amended at 57 Fed. Reg.

 38564,

 on August

25,

 1992.

 This change

closely parallels the amendments to Section 724.101.

 725.101

provides the purpose,

 scope and applicability of Part 725.

725.101(c) (6) was amended to delete subpart D and add subpart H

of Part 726 as parts which apply the owners or operators of

recycling facilities.

 Subpart D of Part 726 concerns hazardous

waste burned for energy recovery.

 Subpart H of Part 726 concerns

hazardous waste burned in boilers and industrial furnaces.

Section 725.113

~flL~2-Ci83f~

27

Section 725.113

 is derived from 40 CFR 265.13, which was

amended at 57 Fed.

 Reg.

 54461,

 on November 18,

 1992.

 This change

closely parallels the amendments to 35 Ill. Adm. Code 724.101.

Section 725.113(c)

 is amended to add subsection

 (c)(3), which

adds a requirement that an owner or operator of an off—site

landfill specify the procedures that will be taken to determine

whether

 a biodegradable sorbent has been added to the waste in

the container.

Section 725.210

Section 725.210 is derived from 40 CFR 265.110, which was

amended at 57 Fed. Reg.

 37267,

 on August 18,

 1992.

 This Section

applies the post-closure care sections to the owners and

operators of containment buildings which under new section

 725.1102 must meet the requirements for landfills.

Section 725.211

Section 725.211

 is derived from 40 CFR 265.111, which was

amended at 57 Fed. Reg.

 37267,

 on August 18,

 1992.

 This

amendment closely parallels the changes made in 724.211.

 This

amendment requires a owner or operator of a facility to conform

to new section 35 Ill. Adm. Code 724.1102 (Federal Section

264.1102).

 35 Ill. Adm. Code 724.1102 concerns closure and post-

closure of containment buildings.

Section 725.212

Section 725.212

 is derived from 40 CFR 265.112, which was

amended at 57 Fed. Reg.

 37267, on August 18,

 1992.

 This

amendment closely parallels the changes made in 724.212.

The

section is amended to include new section 35 Ill. Adm.

 Code

724.1102

 (40 CFR 264.1102) among the regulations with which

closure plans must conform.

Section 725.240

Section 725.240 is derived from 40 CFR 265.140, which was

amended at 57 Fed.

 Reg.

 37267, on August 18,

 1992.

 This

amendment closely parallels the changes made in 724.240.

The

amendment requires containment buildings that are required under

724.1102 to meet the requirements for landfills.

Section 725.242

Section 725.242 is derived from 40 CFR 265.142, which was

amended at 57 Fed. Reg.

 37267, on August 18,

 1992.

 This Section

 adds section 725.278 and new section 725.1102 to the applicable

closure requirements from which an owner or operator determines

the closure cost estimate.

f~l.,

‘(~

28

Section 725.243

Section 725.243

 is derived from 40 CFR 265.143, which was

amended at

 57 Fed. Reg.

 42843,

 on September 16,

 1992.

 This

amendment closely parallels the changes to 35 Ill. Adm. Code

724.243.

 This section concerns financial assurance for closure.

Section 725.245

Section 725.245 is derived from 40 CFR 265.145, which was

amended at 57 Fed. Reg.

 42843, on September 16,

 1992.

 This

amendment closely parallels the changes made to 35 Ill. Adm. Code

724.243.

Section 725.247

Section 725.247

 is derived from 40 CFR 265.147, which was

amended at 57 Fed.

 Reg. 42843-44, on September 16,

 1992.

 This

amendment closely parallels the changes made to 35 Ill.

 Adin. Code

724.247.

 See the discussion above.

Section 725.321

Section 725.321 is derived from 40 CFR 265.221, which was

amended at 57 Fed. Reg.

 37267,

 on August

18,

 1992.

 This Section

concerns surface impoundments which are newly subject to

RCRA

3005(j) (1) due to newly added wastes

 (See R92—10,

p.

 51—53).

Section 3005(j) gives operators of impoundments,

 in existence

since November 8,

 1984, who qualified for interim status,

48

months to upgrade the impoundment to meet the requirements of

Section 3004(o) (1) (A), subject to three exceptions in 3005(j) (2),

(3), or

 (4).

 Continued receipt of waste was prohibited after

that time.

 Today’s amendment apparently gives the same 48 months

to operators of existing impoundments which become subject to

RCRA rules because of new listings or new hazardous waste

characteristics.

 The requirements of section 3004(o)(10(A) were

adopted by the Board in R86-1,

 as detailed in the Board Note

following Section 725.321(c) (1).

 Those standards were upgraded

in r92-10, but the Board Note was added, allowing continued

operation of impoundments constructed in compliance with the R86—

1 standards,

 so long as there is no reason to believe the liner

is not functioning as designed.

 The Board is uncertain as to

USEPA’s intent by referring to RCRA 3005(j) but concludes that it

intends “subject to this Part.”

 Thus, the Board concludes,

a

surface impoundment that becomes subject to the interim status

has 48 months to comply.

 For this interpretation to be correct,

the USEPA text must contain an error.

 The USEPA rule requires

compliance with “subsections

 (a),

 (c),

 (d)”.

 This is

apparently ~incorrectas

 (c) and

 (d) are alternatives to

 (a) in

any situation.

 The Board proposes to adopt the subsection as

follows, and solicits comment on this matter.

F.’

•

f’

29

 Surface impoundments that are newly sublect to this

Part due to the promulgation of additional listings or

characteristics for the identification of hazardous

waste must be in compliance with subsections

 (a),

 (C).

or

(d)

 above not later than 48 months after the

promulgation of the additional listing or

characteristic.

 This compliance period shall not be

cut short

 as the result of the promulgation of land

disposal prohibitions under

 35 Ill.

 Admn. Code 728 or

the granting of an extension to the effective date of a

prohibition Pursuant to

 35 Ill.

 Adm. Code 728.105.

within this 48 month period.

Section 725.401

Section 725.401

 is derived from 40 CFR 265.301, which was

amended at 57 Fed. Reg. 30658,

 on July 10,

 1992.

 This amendment

revises the double liner requirement waiver in 724.401(d) (1).

The amendment was previously adopted in R92-10.

 The Board takes

no action at this time.

Section 725.414

Section 725.414

 is derived from 40 CFR 265.314, which was

amended at 57 Fed.

 Reg.

 54461,

 on November 18,

 1992.

The Board had not previously adopted a subsection

(a)

for

this section because it was inapplicable to the State rules (See

R86—26).

 The Board proposes to adopt a subsection

(a)

 in this

rulemaking that would contain “filler” language.

 The Board

proposes this change to avoid confusion caused by a starting

section with subsection (b).

 The Board solicits comment on this

matter.

“Sorbent” replaces “absorbent” throughout this section.

Section 725.414(f)

 adds the requirement that nonbiodegradable

sorbents treat free liquids disposed in landfills.

 Section

725.4l4(f)(l)

 lists nonbiodegradable sorbents and Section

725.414(f)(2)

 incorporates biogradable test methods.

The amendment to this Section closely parallels the

amendment to 724.414.

 New Federal section 265.314(f)

 is added

and concerns nonbiodegradable sorbents.

 This new section

arguably concerns the same subject matter as old state section

725.414(g) which requires the addition of absorbents to free

liquids prior to disposal.

 The Board concludes that 265.314(f)

and 725.414(g)

 cover the same subject matter and that 265.314(f)

is more stringent.

 Therefore,

 the Board proposes to adopt the

new Federal Section and delete state section 725.414(g).

The

Board solicits comment

 on this matter.

Moreover, the Board concludes that the amendment calls for

L~.2-0337

30

an adjusted standard procedure where it allows a petitioner to

show that a material is nonbiodegradbale even where it is not

listed or does not met one of the listed tests.

 In addition, the

USEPA amendment

 cites the 40 CFR 260

35

 Ill. Adm. Code 720

petition process.

 The Board believes there is no petition

process spelled out in Part 720 which governs here.

 Therefore

the Board proposes to cite the Board’s regulation 35 Ill.

 Adm.

Code 106.

 The Board solicits comment on this matter.

Section 725.416

Section 725.416 is derived from 40 CFR 265.316, which was

amended at 57

 Fed. Reg. 54461,

 on November 18,

 1992.

 “Sorbent”

replaces “absorbent” and the nonbiodegradibility determination

found in 725.414(f)

 is included.

Section 725.540

Section 725.540 is derived from 40 CFR 265.440, which was

amended at 57 Fed.

 Reg. 61503-04, on December 24,

 1992.

 This

Section clarifies that the leak collection system requirement

found in Section 725.543(b) (3)

 applies, with some exceptions,

only to drip pads constructed after December 24,

 1992.

 Section

725.540(c)

 closely parallels Section 724.670,

 see discussion

above.

Section 725.541

Section 725.541 is derived from 40 CFR 265.441, which was

amended at 57 Fed. Reg. 61504, on December 24,

 1992.

 This

amendment deletes the requirement that the owner or operator

“justify” the extent to which the drip pads meet the relevant

standards.

Section 725.542

Section 725.542 is derived from 40 CFR 265.442, which was

amended at 57 Fed.

 Reg.

 61504,

 on December 24,

 1992.

 This

amendment closely parallels the changes made to Section

This section requires an owner or operator of new drip pads to

ensure that the pads are designed,

 installed,

 and operated in

accordance with either 725.543

 (except 725.543(a) (4)),

 725.544

and 725.545; or with 725.543

 (except 725.543(b)),

 725.544 and

725. 545.

Section 725.543

Section 725.543

 is derived from 40 CFR 265.443, which was

amended at 57

 Fed. Reg.

 61504,

 on December 24,

 1992.

 This

amendment revises design and operating requirements for drip

pads.

 See above discussion concerning Section 724.673.

~E-O838

31

725.Subpart DD

New subpart 725.Subpart DD regulates containment buildings.

This new subpart is derived from 40 CFR 265.1100 through

265.1102, which was adopted at 57 Fed. Reg.

 37268, on August

18,

1992, and became effective on that date.

 This is a HSWA driven

regulation.

 Although this subpart is nearly identical to Part

724.Subpart DD, the Board must interpret the provisions

differently because Part 725 owners or operators do not work

under a permit system.

 Readers should reference the above

discussion in 724 to note differences.

Table of Contents

The following entries are added to the Table of Contents for

Part 725:

Subpart DD

 Containment Buildings

Section

725.1100

 Applicability

725.1101

 Design and operating standards

725.1102

 Closure and post-closure care

The new regulations are given below.

 The Board has added

emphasis for discussion purposes.

Section 725.1100

 Applicability

The requirements of this subpart apply to owners or

operators who store or treat hazardous waste in units designed

and operated under

 35 Ill. Adm. Code 725.1101.

 These provisions

will become effective on February 18,

 1993, although owner or

operator may notify the Regional Administrator of his intent to

be bound by this subpart at an earlier time.

 The owner or

operator is not subject to the definition of land disposal in 35

Ill.

 Adm. Code 728.102 provided that the unit:

(Emphasis added)

In light of the fact these are HSWA driven regulations which

 became effective upon adoption of the Federal rule,

 the Board

believes the USEPA intended these subsections to be time

specific.

 The Board proposes to adopt the Section 725.1100

introductory language as given to maintain correlation with the

Federal regulations in the event there are potential State

enforcement responsibilities after the State takes over primary

enforcement authority.

The above notification must have been made by February 18,

1993, which is prior to State adoption, the Board will retain the

L’-~C~339

32

notification requirements to a Federal entity.

 However,

 as per

Board practice, the Board will change “Regional Administrator” to

“USEPA”

 (see the discussion at the end of this opinion on Agency

or Board actions).

 The Board solicits comment on this matter.

The regulations continue:

Section 724.1100

a)

 Is a completely enclosed, self—supporting structure

that is designed and constructed of manmade materials

of sufficient strength and thickness to support

themselves,

 the waste contents, and any personnel and

heavy

equipment that operate within the unit,

 and to

prevent failure due to pressure gradients,

 settlement,

compression, or uplift, physical contact with the

hazardous wastes to which they are exposed; climatic

conditions;

 and the stresses of daily operation

including the movement of heavy equipment within the

unit and contact of such equipment within the unit and

contact of such equipment with containment walls;

The Board proposes to restructure the above subsection for

clarity, as follows:

a)

 Is a completely enclosed, self—supporting structure

that is designed and constructed of manmade materials

of sufficient strength and thickness to support

themselves,

 the waste contents, and any personnel and

heavy

equipment that operate within the unit,

 and to

prevent failure due to:

1)

 pressure gradients;

2)

 settlement,

 compression, or uplift;

3)

 physical contact with the hazardous wastes to

which they are exposed;

4)

 climatic conditions; and

5)

 the stresses of daily operation,

 including the

movement of heavy equipment within the unit and

contact of such equipment with containment walls.

The Board solicits comment as to whether this restructuring

properly reflects the intended meaning of the provision.

The regulations continue:

~.2-O8b~Q

33

Section 724.1100

c)

 If the unit is used to manage liquids, has:

The Board proposes to restructure,

 for clarity the above

subsection as follows:

 If used to manage liquids, the unit has:

The Board solicits comment on this matter.

The regulations continue:

3)

 A secondary containment system designed and

constructed of materials to prevent migration of

hazardous constituents into the barrier, with a

leak detection and liquid collection system

capable of detecting,

 collecting, and removing

leaks of hazardous constituents

 at the earliest

possible time,

 unless the unit has been granted a

variance

 from the secondary containment system

requirements under Section 725.1101(b) (4);

The Board proposes to replace “possible” with “practicable.”

Practicable is used elsewhere throughout 725.Subpart DD and

724.Subpart DD (see 724.1100(a) (3); 724.1101(b) (3);

725.1101(b)(2)(B); and 725.1101(b)(3)).

 The Board is uncertain

as to whether it is USEPA’s intention to give this subsection a

separate and discrete meaning by use of the word “possible”

where “practicable” has been used elsewhere.

 The Board concludes

that it is merely a drafting error.

 Therefore,

 in order to avoid

the implication that a separate meaning is intended, the Board

proposes to replace “possible” with “practicable.”

 The Board

solicits comment on this matter.

The regulations continue:

Section 724.1100

d)

 Has controls as needed to permit fugitive dust

emissions; and

The word “permit” in the above subsection is certainly an

 error.

 The Board proposes to revise the above subsection, using

the language in the corresponding Part 724 subsection,

as

follows:

d)

 Has controls sufficient to prevent fugitive dust

emissions to meet the no visible emission standard in

Section 725.1101(c) (1) (D); and

01 !~~.2-Q81~

34

The Board solicits comment on this matter.

The regulations continue:

Section 725.1101

 Design and operating standards

a)

 All containment buildings must comply with the

following design and operating standards:

The Board has added “and operating” to the above subsection

because 725.1101(a) (3)

 is more correctly an operating requirement

as opposed to a design requirement.

 The Board solicits comment

on this matter.

The regulations continue:

Section 725.1101

a)

2)

 The floor and containment walls of the unit,

including the secondary containment system if

required under subsection

(b)

 below, must be

designed and constructed of materials of

sufficient strength and thickness to support

themselves, the waste contents, and any personnel

and heavy equipment that operate within the unit,

and to prevent failure due to pressure gradients,

settlement, compression, or uplift, physical

contact with the hazardous wastes to which they

 are exposed; climatic conditions; and the stresses

of daily operation,

 including the movement of

heavy equipment within the unit and contact of

such equipment with containment walls.

 The unit

must be designed so that it has sufficient

structural strength to prevent collapse or other

failure.

 All surfaces to be in contact with

hazardous wastes must be chemically compatible

with those wastes.

 EPA will consider standards

established by professional organizations

generally recognized by the industry such as the

American Concrete Institute ACI)

 and the American

Society of Testing Materials IASTM1

 in iudgjnq the

structural integrity requirements of this Section.

If appropriate to the nature of the waste

management operation to take place in the unit,

an

exception to the structural strength requirement

may be made for light-weight doors and windows

that meet these criteria:

01 L~2-O8L~.2

35

(Emphasis added)

The Board proposes to revise the above underlined language

as follows:

The containment building must meet the structural

integrity requirements established by professional

organizations generally recognized by the industry

such as the American Concrete Institute ACI)

and

the American Society of Testing Materials ASTM.

The Board believes that this approach creates an affirmative

 duty on the owners or operators.

 The Board solicits

 comment on

this matter.

The regulations continue:

Section 725.1101

a)

3)

 Incompatible hazardous wastes or treatment

reagents must not be placed in the unit or its

secondary containment system

 if they could cause

the unit or secondary containment system to leak,

corrode,

 or otherwise fail.

The Board believes the above subsection is an operating

requirement, and as discussed above, has revised 725.1101(a) to

reflect this.

The regulations continue:

Section 725.1101

b)

 For a containment building used to manage hazardous

wastes containing free liquids or treated with free

liquids

 (the presence of which is determined by the

paint filter test,

 a visual examination, or other

appropriate means), the owner or operator must include:

3)

 A secondary containment system including a

secondary barrier designed and constructed to

prevent migration of hazardous constituents into

the barrier, and a leak detection system that is

capable of detecting failure of the primary

barrier and collecting accumulated hazardous

wastes and liquids at the earliest practicable

time.

36

C)

 The secondary containment system must be

constructed of materials that are chemically

 resistant to the waste and liquids managed in

the containment building and of sufficient

strength and thickness to prevent collapse

under the pressure exerted by overlaying

materials and by any equipment used in the

containment building.

 (Containment buildings

can serve as secondary containment systems

for tanks placed within the building under

certain conditions.

 A containment building

can serve as an external liner system for a

tank, provided it meets the requirements of

Section 725.293(d)(l).

 In addition, the

containment building must meet the

requirements of Section 725.193(b)

and

 (c) to

be considered an acceptable secondary

containment system for a tank.)

(Emphasis added)

The Board proposes to eliminate “considered” from the above

subsection.

 The word raises the question “Considered by whom?”

In addition, the Board believes the meaning is the same with

“considered” eliminated.

 The Board solicits comment on this

matter.

The regulations continue (section

(b)

 is repeated for clarity):

Section 725.1101

b)

 For a containment building used to manage hazardous

wastes containing free liquids or treated with free

liquids (the presence of which is determined by the

paint filter test, a visual examination, or other

appropriate means), the owner or operator must include:

4)

 For existing units other than 90-day generator

units, the Regional Administrator may delay the

secondary containment requirement for up to two

years, based on a demonstration by the owner or

operator that the unit substantially meets the

standards of this subpart.

 In making this

demonstration, the owner or operator must:

A)

 Provide written notice to the Regional

Administrator of their request by November

16,

 1992.

 This notification must describe

the unit and its operating practices with

specific reference to the performance of

existing systems, and specific plans for

37

retrofitting the unit with secondary

containment;

B)

 Respond to any comments from the Regional

Administrator on these plans within 30 days;

and

C)

 Fulfill the terms of the revised plans,

if

such plans are approved by the Regional

Administrator.

(Emphasis added)

This subsection raises uncertainty as to the State’s

enforcement responsibility.

 Given that the prescribed deadline

was prior to State adoption,

 plans could have only been submitted

to USEPA.

 However, because there are no decision deadlines,

it

is uncertain what the status of the plan will be at the point the

State gains authorization.

 Moreover, there are no criteria given

for plan approval or appeal.

 The Board solicits comment as to

 what enforcement responsibility is placed on the State by this

provision and the Board further solicits comment as to whether

this subsection is appropriately adopted by the States at all.

The Board proposes to adopt these subsections as they are to

maintain correlation with the Federal regulations,

 in the event

that a showing of a USEPA approved delay of the containment

requirement is necessary to demonstrate compliance.

 The Board

will not replace “Regional Administrator” with “Agency” or “the

Board” but will replace it with “USEPA” to conform with past

Board practice (see the discussion at the end of this opinion on

Agency or Board actions).

 The Board solicits comment on this

matter.

The regulations continue:

Section 725.1101

c)

 Owners or operators of all containment buildings must;

1)

 Use controls and practice to ensure containment of

the hazardous waste within the unit;

 and,

 at a

minimum:

D)

 Take measures to control fugitive dust

emissions such that any openings

 (doors,

windows,

 vents,

 cracks,

 etc.)

 exhibit no

visible emissions (see 40 CFR cart 60.

Appendix A, Method 22

 Visual Determination

of Fugitive Emissions from Material Sources

c’~

IJI~4~UO4

38

and Smoke Emissions from Flares).

In

addition, all associated particulate

collection devices

 (e.g.,

 fabric filter,

electrostatic precipitator) must be operated

and maintained with sound air pollution

control practices (see 40 CFR part 60 subpart

292 for guidance).

 This state of no visible

emissions must be maintained effectively at

all times during routine operating and

maintenance conditions, including when

vehicles and personnel are entering and

exiting the unit.

(Emphasis added)

The underlined language does not appear in the above section

but did appear in the corresponding section in Part 724.

The

Board proposes to insert the language to aid owners or operators.

The Board solicits comment on this matter.

The regulations continue:

Section 725.1101

c)

 Owners or operators of all containment buildings must:

3)

 Throughout the active life of the containment

building,

 if the owner or operator detects

a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly,

 in accordance with the

following procedures.

A)

 Upon detection of a condition that has lead

~

 a release of hazardous wastes

 (e.g., upon

detection of leakage from the primary

barrier) the owner or operator must:

(Emphasis added)

The above language is underlined to emphasize the lack of

 clarity of the above sections.

 The Board proposes to revise the

above section as follows:

 Owners or operators of all containment buildings must:

3)

 Throughout the active life of the containment

building,

 if the owner or operator detects a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly,

 in accordance with the

following procedures.

 In addition however:

U

4 ~

ü

39

A)

 Upon detection of a condition that has caused

lead to a release of hazardous wastes

 (e.g.,

upon detection of leakage from the primary

barrier)

 the owner or operator must:

The Board solicits comment as to whether this revision reflects

USEPA’s intent.

The regulations continue

 (as amended above):

Section 725.1101

c)

 Owners or operators of all containment buildings must:

3)

 Throughout the active life of the containment

building,

 if the owner or operator detects a

condition that could lead to or has caused a

release of hazardous waste, must repair the

condition promptly.

 In addition however:

A)

 Upon detection of a condition that has caused

a release of hazardous wastes

 (e.g., upon

detection of leakage from the primary

barrier) the owner or operator must:

1)

 Enter a record of the discovery in the

facility operating record;

ii)

 Immediately remove the portion of the

containment building affected by the

condition from service;

iii) Determine what steps must be taken to

repair the containment building, remove

any leakage from the secondary

collection system,and establish a

schedule for accomplishing the cleanup

and repairs; and

iv)

 Within

 7 days after the discovery of the

condition, notify the Regional

Administrator

 in writing of the

condition, and within 14 working days,

provide a written notice to the Regional

Administrator with a description of the

steps taken to repair the containment

building, and the schedule for

accomplishing the work.

B)

 The Regional Administrator will review the

information submitted, make a determination

01 ~42O8~~7

40

regarding whether the containment building

must be removed from service completely or

partially until repairs and cleanup are

complete, and notify the owner or operator of

the determination and the underlying

rationale in writing.

C)

 Upon completing all repairs and cleanup the

owner and operator must notify the Regional

 Administrator in writing and provide a

verification, signed by a qualified,

registered professional engineer, that the

repairs and cleanup have been completed

according to the written plan submitted in

accordance with subsection

 (c) (3) (A) (iv)

above.

(Emphasis added)

In above subsection

 (iv),

 the Board has added the

requirement that the notification be in writing.

 The Board

solicits comment on this matter.

The Board has determined that this section comes under the

Agency’s power to seal, pursuant to Section 34 of the Act,

because the regulation gives the Agency only the power to

determine whether the unit must be taken out of service.

 It does

not give the Agency the power to approve or disapprove the

cleanup plan or to determine whether the owner or operator is in

compliance with the plan.

 Under Section 34(d) the owner or

operator may appeal the Agency’s decision to seal the unit to

members of the Board or seek injunctive relief.

 The Board

rejected other approaches because of the fact that it is a “cease

operations” determination,

 of which any appeal should be resolved

quickly.

 The Board solicits comment on this matter.

The Board proposes to replace “Regional Administrator” with

“Agency” in all instances above.

 The Board solicits comment on

this matter.

The regulations continue:

Section 725.1101

e)

 Notwithstanding any other provision of this subpart ~g

 Regional Administrator may waive requirements for

secondary containment for a permitted containment

building where the owner or operator demonstrates that

the only free liquids in the unit are limited amounts

of dust suppression liquids required to meet

occupational health and safety requirements, and where

containment of managed wastes and liquids can be

r~

•m

“tC!~

U

L~.,~Uo4

41

assured without a secondary containment system.

(Emphasis

added)

The Board interprets the above section as an adjusted

standard provision.

 Where the regulations require a “waiver” the

Board typically concludes that it is an adjusted standard

procedure.

 The Board directs readers to the discussion

concerning the corresponding section in Part 724, where the Board

discussed whether handling as that section permit condition would

be appropriate.

 The Board concludes, that because Part 725

owners and operators do not work under

 a permit, the permit

condition approach was not available here.

 However, this

approach arguably creates a procedurally inconsistency by

treating corresponding sections in Part 724 and Part 725

differently.

Moreover, the Board notes that the above section refers to

“permitted” units.

 This suggests to the Board that the above

section may have possibility been included in part 725 by

accident.

 The Board solicits comment as to whether this section

should be eliminated from Part 725.

The Board will adopt the above section as revised:

e)

 Notwithstanding any other provision of this subpart,

the owner or operator may seek relief from the

secondary containmnent~. by petitionin~the Board for an

adiusted standard pursuant to Section 28.1 of the Act.

by demonstrating to the Board that the only free

liquids in the unit are limited amounts of dust

suppression liquids required to meet occupational

health and safety requirements, and where containment

of managed wastes and liquids can be assured without a

secondary containment system.

The Board solicits comment on this matter.

PART 726:

 STANDARDS

FOR

THE MANAGEMENT

OF SPECIFIC

HAZARDOUS

WASTE

AND

 SPECIFIC TYPES OF HAZARDOUS WASTE

MANAGEMENT

FACILITIES

726.Subpart E

726.Subpart E

 is derived from 40 CFR 276.Subpart E and was

deleted in its entirety at 57 Fed. Reg. 41612,

 on September 10,

1992.

 726.Subpart E is deleted and is replaced by new Part 739

(279).

Section 726.200

42

Section 726.200 is derived from 40 CFR 266.100, which was

amended at 57 Fed. Reg.

 38564, on August 25,

 1992.

 This

amendment adds subsection

(f)

 to the sections listed

 in section

(a)

 The Board has previously made this change and takes no

action today.

 The Section was further amended at 57 Fed. Reg.

41612,

 on September 10,

 1992.

 This amendment requires used oil

that is burned for energy and which exhibits a characteristic of

waste to be regulated by Part 739.

Section 726.201

Section 726.201 is derived from 40 CFR 266.101, which was

amended at 57 Fed. Reg.

 38564,

 on August 25,

 1992.

The

provisions which regulate management prior to burning for storage

facilities that come under the small quantity burner exemptions

are amended.

Section 726.203

Section 726.203 is derived from 40 CFR 266.103, which was

amended at 57 Fed. Reg.

 38564-65, on August 25,

 1992 and at 57

Fed. Reg. 45000—01, on September 30,

 1992.

 Section 726.203(b)

incorporates 40 CFR 266.103(b) by reference.

 Section

726.203(c) (1)

 is revised to allow an owner or operator to

establish limits on the listed parameters based on operations

during the compliance test or as otherwise specified.

 Subsection

726.203(c) (1) (B) (i)

 is revised so that it becomes Subsection

726.203(c) (1) (B) (ii).

Because the Board has restructured this section in the past

to allow for various Code restrictions,

 it is difficult to

compare the State section to its Federal equivalent.

 The Board

proposes to add the following Board Note after

726.203(c) (1) (B) (1):

 BOARD NOTE:

 Federal subsections

726.203(c) (1) (ii) (A) (1) and

 (2) are condensed into the above

subsection.

 The Board solicits comment as to whether the Federal

amendments were correctly incorporated into the State section.

In prior rulemakings, the Board moved the information

contained in 726.203(c) (7) (B) to 35 Ill. Adm. Code 726.219.

The

Board continues this practice by moving today’s amendment to

724.203(c) (7) (B) to 726.219 as well.

 In addition, the reference

to 726.203(c) (7) (B)

 in 724.203(c) (5)

 is amended to reflect the

arrangement.

726.203(c) (5)

 is amended by as follows:

5)

 Special requirements for HC monitoring systems.

When an owner or operator is required to comply

with the HC controls provided by Sections

726.204(c)

 or subsection

 (a) (5) (A) (iv),

 above,

a

conditioned gas monitoring system may be used in

,.-~

L.~

43

conformance with specifications provided in

Appendix

I

 (“eye”) provided that the owner or

operator submits a certification of compliance

 without using extensions of time provided by

(c) (7)

 below.

 However,

 owners or operators of

facilities electing to comply with the alternative

hydrocarbon provision of Section 726.204(f) and

requesting a variance for a time extension

pursuant to Section

 (c) (7) (B) may establish the

baseline HC level and comply with the interim HC

limit established by the time extension using a

conditioned gas monitoring system if the Board

determines that the owner or operator has also

demonstrated a good faith effort to operate a

heated monitoring system but found it to be

impracticable.

Readers are again alerted that the State correlation to the

40 CFR 266.103(c)(7)(ii)(B)

 (time extension provisions)

 is at

Section 726.219

 (Extension of Time).

 The Board has replaced

“Regional Administrator” with “Board”.

 The Board has determined

the power to grant time extensions pursuant to this amendment

lies with the Board as part of its existing power to grant

extensions pursuant to Section 726.219.

 The Board solicits

comment on this matter.

In addition, the Board has added the word “also” in the last

clause as follows:

 “...that the owner or operator has also

demonstrated a good faith effort to operate a heated monitoring

system but found

 it to be impracticable.”

 The Board has added

“also” because it believes the amendment as worded would replace

 all the existing showing requirements contained in 726.219 with a

demonstration of good faith,

 the Board believes USEPA intended

that the good faith showing is required in addition to the other

showings.

 The Board solicits comment on this matter.

Lastly, at 57

 Fed. Reg.

 44999, the USEPA corrected an

administrative error which could have led to some confusion as to

what sections in 726.203 remained in effect.

 All section remain

in effect.

 The Board appreciates the clarification.

Section 726.204

Section 726.204 is derived from 40 CFR 266.104, which was

amended at 57 Fed. Reg.

 38565, on August 25,

 1992.

 This Section

is amended to add demonstrations which must be made by the owner

or operator.

 The baseline HC level is redefined and the method

for determining the baseline CO level is identified.

Section 726.206

—0851

44

Section 726.206

 is derived from 40 CFR 266.106, which was

amended at 57 Fed. Reg.

 38565-66, on August 25,

 1992.

 Section

726.206(b) (7)

 is revised to require owners or operators of

facilities not eligible for screening limits to comply with

either Tier III standards or with the adjusted Tier

 I feed rate

screening limits.

 Section 726.206(d)

 is revised to state that

the requirements of that subsection apply, with exceptions,

to

facilities that comply with the Tier III standards or with the

adjusted Tier

 I controls.

 The section is further revised to

identify how compliance with those standards must be

demonstrated.

 In addition, the section is revised to exempt

facilities complying with Tier

 I controls from emissions testing

requirement.

The amendment also appears to correct typographical changes

in the equation that appears at 726.206(d).

 The Board has

already corrected the errors.

 The Board solicits comment as to

whether the amendment is intended to correct typographical errors

only or whether substantive changes were intended.

Section 726.207

Section 726.207 is derived from 40 CFR 266.107, which was

amended at 57 Fed. Reg.

 38566, on August

25,

 1992.

 Section

726.207(a)

 is revised to add subsection

 (e), adjusted Tier

 I feed

rate screening limits, to the sections providing controls.

Section 726.208

Section 726.208 is derived from 40 CFR 266.108, which was

amended at 57 Fed. Reg.

 38566,

 on August 25,

 1992.

 Typographical

changes to the equation implementing quantity limits found in

Section 726.208(c), are corrected.

 The Board has already

corrected these errors.

 The Board solicits comment as to whether

the amendment is intended to correct typographical errors only or

whether substantive changes were intended.

Section 726.212

Section 726.212

 is derived from 40 CFR 266.112, which was

amended at 57 Fed. Reg.

 38566,

 on August

25,

 1992.

 Section

726.212(b) (2) (1)

 is revised to add to level of detection as an

upper limit on the concentration of each nonmetal toxic

constituent.

Section 726.219

As discussed above at Section 726.203, this section is

amended by ‘the changes made to 40 CFR 266.103(c) (7) (ii).

Section 726.Appendix

I

r—;

~j~Li~.~jO

45

Section 726.Appendix

 I is derived from 40 CFR 266.Appendix

IX, which was amended at 57 Fed. Reg.

 38566,

 on August 25,

1992

and at 57 Fed.

 Reg. 44999-45000,

 on September 30,

 1992.

The

state rules incorporate the federal rules by reference.

PART 728:

LAND

DISPOSAL RESTRICTIONS

Section 728.102

Section 728.102 is derived from 40 CFR 268.2, which was

amended at 57 Fed.

 Reg.

 37270, on August 18,

 1992.

The

definitions for “Debris” and “Hazardous Debris” are added.

 It is

unclear whether the intent of this amendment was to replace

“Inorganic Solid Debris” in the definitions section with

“Debris”.

 The Board has not deleted the definition for

“Inorganic Hazardous Debris”.

 The Board solicits comment on this

matter.

Section 728.105

Section 728.105 is derived from 40 CFR 268.5, which was

amended at 57 Fed. Reg.

 37270,

 on August 18,

 1992.

 This Section

concerns the procedures for case-by-case extensions to an

effective date.

 The state rule incorporates the federal rule by

reference.

Section 728.107

Section 728.107

 is derived from 40 CFR 268.7, which was

amended at 57 Fed. Reg.

 37270-71, on August 18,

 1992.

 The record

keeping, notification and certification requirements for

hazardous debris are revised and exemptions are provided.

The Federal Register indicates that 40 CFR 268.7(a) (1) (iii)

728.107(a)

 (1) (C)

 is amended to eliminate the “and” at the end

of the subsection.

The Federal register apparently contains a typographical

error at

 (a) (2).

 The Board believes 261. (e) (2) should be

261. (d) (2) because 261.(e)

 is a sunset provision.

 This apparent

error also appears at 728.103(b) (4)

and

 (5),

 728.103(d),

728.103(d) (1) (C), and 728.103(d) (2) and

(3)

 The Board proposes

to replace 728.103(e) with 728.103(d)

 throughout.

 The Board

solicits comment on this matter.

Section 728. (a) (2) refers to debris that “the Director has

determined does not contain hazardous waste.”

 The Board

understands this to mean a delisted waste.

 Therefore, the Board

proposes to replace “Generators of hazardous debris that is

excluded from the definition of hazardous waste under Section

261.3(d)(2)

 (i.e.

 debris that the Director has determined does

0R2-0853

46

not contain hazardous waste)”

 with “Generators of hazardous

debris that is excluded from the definition of hazardous waste

under 35 Ill. Adm. Code 721.103(c).

 35 Ill. Adm. Code

721.103(d) (2) and 35

 Ill. Adm. Code 720.122

 (i.e.

 debris that is

delisted)”.

 The Board uses this same reasoning for similar

language in 728.

 103(b) (4) and

 (5), and 728.103 (d).

 The Board

solicits comment on this matter.

Subsection

(d)

 is added to address generators or treaters

who first claim that hazardous debris is excluded from the

definition of hazardous waste under 721.103.

 Subsection

 (d) (1)

contains a one time notification requirement.

 The federal rules

require this notice to be given to the Director or authorized

state.

 The Board concludes that notice in this instance should

be made to the Agency.

The Board solicits comment on this matter.

Section 728.109

Section 728.109 is derived from 40 CFR 268.9, which was

amended at 57 Fed. Reg.

 37271, on August 18,

 1992.

The

notification and certification requirement for a waste which is

no longer hazardous is revised.

Section 728.114

 Surface Impoundment Exceptions

Section 728.114 is derived from 40 CFR 268.14, which was

added at 57 Fed. Reg.

 37271, on August 18,

 1992.

 This section

allows a newly identified or listed waste under

RCRA

section 3001

that is stored in a surface impoundment, to continue to be stored

there for 48 months, provided the impoundment is in compliance

with 35 Ill. Adm. Code 725.Subpart F.

 In addition, a similar

regulation is adopted for the treatment of a newly identified or

listed waste under

RCRA

section 3001.

Section 728.135

Section 728.135 is derived from 40 CFR 268.35, which was

amended at 57 Fed. Reg. 47776,

 on October

20,

 1992.

 This amends

land disposal regulations.

Section 728.136

 Waste Specific Prohibitions

——

 Newly Listed

Wastes

Section 728.136

 is derived from 40 CFR 268.36, which was

added at 57 Fed. Reg.

 37271-72, on August 18,

 1992.

 The new

section concerns Waste Specific Prohibitions

——

 Newly Listed

Wastes.

 This section lists wastes which are prohibited from land

disposal.

 The Section also includes exceptions to the

prohibitions.

L~2-U85E.~

47

Section 728.140

Section 728.140 is derived from 40 CFR 268.40, which was

amended at 57 Fed. Reg. 37272,

 on August 18,

 1992.

 This section

is revised to regulate hazardous debris.

Section 728.141

Section 728.141

 is derived from 40 CFR 268.41, which was

amended at 57 Fed. Reg.

 37272—73,

 on August

18,

 1992.

 This

section is revised to clarify the application of treatment

standards.

Section 728.142

Section 728.142 is derived from 40 CFR 268.42, which was

amended at 57 Fed. Reg. 37273,

 on August

18,

 1992.

 This section

is revised to add a number of wastes to the Table of Treatment

Standards expressed as specific technologies.

Section 728.142(b)

 allows any person to submit to the Agency

an application demonstrating that an alternative treatment method

can achieve a measure of performance equivalent to the specified

methods.

 This section stays essentially the same except it is

revised to include hazardous debris.

Section 728.142(d)

 also remains essentially the same except

that it is revised to include hazardous debris.

Section 728.143

Section 728.143

 is derived from 40 CFR 268.43, which was

amended at 57 Fed.

 Reg. 37274—77, on August

18,

 1992.

 This

section is revised to amend treatment standards for several

wastes expressed as waste concentrations.

Section 728.145

 Treatment Standards for Hazardous Debris

Section 728.145 is derived from 40 CFR 268.45, which was

added at

 57 Fed.

 Reg.

 37277—80, on August

18,

 1992.

 This new

section concerns treatment standards for hazardous waste.

Section 728.146

 Alternative Treatment Standards based on HTMR

Section 728.146 is derived from 40 CFR 268.46, which was

added at 57 Fed. Reg. 37280-81, on August

18,

 1992.

 This section

is added to provide alternative treatment standards based on

HTNR.

Section 728.150

L~•2-0855

48

Section 728.150 is derived from 40 CFR 268.50, which was

amended at 57 Fed. Reg.

 37281,

 on August 18,

 1992.

 This section

concerns prohibitions on storage of restricted wastes and is

revised to reference containment buildings.

Section 728.Appendix B

Section 728.Appendix B

 is derived from 40 CFR 268.Appendix

II, which was amended at 57 Fed. Reg.

 37281,

 on August 18,

 1992,

and incorporated by reference in the state section.

PART 739 STANDARDS FOR THE MANAGEMENT OF USED OIL

The USEPA has determined that recycled used oil is not

hazardous waste if managed according to the standards promulgated

in this part.

 These standards cover used oil generators,

transporters, processors and refiners, burners, and marketers.

These standards are promulgated under the authority of Section

3014 of RCRA and will be codified in a new Part 739 of the

Illinois Administrative Code.

 New Part 739 is not a HSWA driven

rule and therefore becomes effective upon adoption by the State.

USEPA has given authorized states until July

1,

 1994 to reflect

new part 279

 739.

The Board’s RCRA identical in substance authority in Section

22.4 of the Act relates to USEPA rules implementing Sections 3001

 3005 of the federal RCRA Act,

 a portion of RCRA Subtitle C,

which addresses hazardous waste.

 The Board’s UST authority

relates to Section 9003.

New Part 40 CFR 279

739

 cites to Sections 1006,

 2002,

3001

—

 3007,

 3010,

 3014 and 7004.

 Since several of these Sections are

outside Sections 3001

—

 3005,

 this raises the issue as to whether

the Board has authority to adopt new Part 739 in an identical in

substance proceeding.

The September 10 Federal Register amends the hazardous waste

rules proper, adding references to the new Part 739.

 If the

Board does not adopt new part 739, the hazardous waste rules will

reference a non-adopted part.

 In addition, the preamble to the

Federal rule states that all states will be required to revise

their programs to address today’s rules

 (57 Fed. Reg. 41604 —05).

One approach would be to adopt the portion of the rules which

amend the hazardous waste rules proper, but not adopt a state

equivalent to Part 279

 739).

 The Board would then cite the

federal section wherever Part 279

 is referenced in the

regulations.

 The Board originally handled Part 266

 in this

manner.

However, USEPA has added 40 CFR 271.26, requiring adoption

of Part 279 (739) as a Part of the State RCRA program.

The

0k20856

49

legislative findings in Section 21(a) (4) et seq. require us to

maintain the RCRA program.

 Today’s proposed rules are adopted in

part pursuant to Sections 3001

 3005 of the RCRA Act, and it

would be difficult,

 if not impossible, to determine what portions

of 739 were adopted pursuant to other Sections.

 Moreover, while

Section 22.4 requires the Board to adopt rules derived from

certain Sections,

 it does not prohibit the Board from adopting

related rules derived from other Sections.

 The rules are an

essential part of the RCRA program, which the Board is required

to adopt to keep the program.

 In addition, Part 279

 is intended

to replace Subpart E of Part 726.

We further note that the Board cannot consider the rules in

any substantive sense as

 it would be required to do were it to

utilize the procedures of Title VII of the Act instead of the

identical in substance rules.

 Lastly,

 if the Board does not

adopt the new Part,

 the Board will still have to refer to the

Federal equivalents within the State rules, thereby causing the

regulated community to conform to a patchwork of regulations.

This is a situation the legislature intended to avoid.3

Therefore, the Board concludes that it must adopt new Part

739 in an identical in substance proceeding.

 The Board solicits

comment on this matter.

The Board notes that new Part 739 supersedes 726.Subpart E.

The Board also notes that the New Part 739 is not intended to

supersede

~JJ~

existing used oil regulations, given that the new

part does not regulate used oil in underground storage tanks.

The Board solicits comment on this matter.

A note on style.

 Throughout this Part the federal rules use

word combinations such as “accepts/aggregates and stores” and

“processor/re—refiner”.

 The Board will to replace the slashes

with commas.

 In the case of “processor/re—refiner” the Board

will use “processor” since “re—refining” is included within the

definition of “processing”.

 The Board believes that the meaning

remains the same and becomes somewhat clearer.

 The Board

solicits comment on this matter.

 In addition,

 as per the usual

3For

 example,

 Section

 20(a)

(8)

of

the

 Environmental

Protection Act states:

a)

 The General Assembly finds:

8)

 that

it

is

 in the interest

 of the people

 of the

State of Illinois to authorize such hazardous waste

management

 program

and

 secure

 federal

 approval

thereof,

and

 thereby

to

 avoid

the

 existence

of

duplicative,

 overlapping or conflicting state

and

federal programs.

U

~-~‘

~

—

U U

50

Board custom, the Board replaces “and/or”

with “or”.

Part 739.Subpart A

 Definitions

Section 739.100

 Definitions.

Section 739.100

 is derived from 40 CFR 279.Subpart A, which

was adopted at 57 Fed. Reg. 41613,

 on September 10,

 1992.

Several of the new definitions are reprinted in full below.

“Aboveground tank” means

 a tank used to store or process

used oil that is not an underground storage tank as defined in 35

Ill. Adm. Code 731.112.

This definition is different from the definition

for

“Aboveground tank” given in 35 Ill. Adm. Code 720.110.

 Although

the meanings are similar, the main distinction is that the

 definition for this Part limits the tanks to those used to store

or process used oil, whereas the 720.110 definition includes

tanks which contain hazardous wastes.

 The Board proposes to

adopt the definition as given above,

 and to follow it with a

Board Note to alert readers that the definition is limited to

this Part only.

 The Board solicits comment on this matter.

“Existing tank” means a tank that is used for the storage or

processing of used oil and that is in operation, or for which

installation has commenced on or prior to the effective date of

the authorized used oil program for the State in which the tank

is located.

 Installation will be considered to have commenced if

the owner or operator has obtained all federal, state,

 and local

approvals or permits necessary to begin installation of the tank

and if either

1)

 A continuous on—site installation program has begun,

or

2)

 The owner or operator has entered into contractual

obligations—which cannot be canceled or modified

without substantial loss-for installation of the tank

to be completed within a reasonable time.

This definition is similar to the definition for “Existing

tank system” in 35 Ill.

 Adm. Code 720.110.

 Although the meanings

are similar, the definition given above for “existing tank”

in

this Part limits the tanks to those used to store or process used

oil, whereas the 720.110 definition includes existing tank

 systems which contain hazardous wastes.

 The Board proposes to

adopt the definition as given above,

 and to follow it with a

Board Note to alert readers that the definition is limited to

this Part only.

 The Board solicits comment on this matter.

“New tank” means

 a tank that will be used to store or

process used oil and for which installation has commenced after

UI ~2-0858

51

the effective date of the authorized used oil program for the

State in which the tank is located.

This definition is similar to the definition given for “New

tank system” given in 35

 Ill. Adm. Code 720.110.

 Although the

meanings are similar, the definition given above for “new tank”

in this Part limits the tanks to those used to store or process

used oil, whereas the 720.110 definition includes new tanks

systems which contain hazardous wastes.

 The Board proposes to

adopt the definition as given above,

 and to follow it with a

Board Note to alert readers that the definition

 is limited to

this Part only.

 The Board solicits comment on this matter.

“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.

The Environmental Protection Act defines “used oil” in much

the same way as above except that after the above language, the

 Act adds the following clause:

 “except that’used oil’ shall not

include that type of oil generated on farmland property devoted

to agricultural use and used on that property for heating or

burning.”

 Section 739.120(a) (4) also regulates used oil produced

by farmers for their own use.

 Section 739.120(a) (4)

 states:

Farmers.

 Farmers who generate an average of 25 gallons

per month or less of used oil from vehicles or

machinery used on the farm in a calendar year are not

subject to the requirements of Part 739.

The Board concludes that there are two classes of used

generated by farmers regulated by the above provisions:

(1)

oil

which is produced on farms,

 and is devoted to agricultural use

and used on the farm for heating or burning, and is not subject

to regulation under the Act; and

 (2) oil produced by farmers who

generate an average of 25 gallons per month or less from vehicles

or machinery used on the farm, and is not subject to Part 739.

The two provisions arguably govern the same subject matter.

The

Board notes that we use the definitions as provided in the

Federal rules

 in the identical in substance rulemakings,

 so as to

not change the scope or applicability of the rules.

 The Board

solicits comment on this matter.

SUBPART B:

 APPLICABILITY

Sections 739.110,

 739.111, and 739.112 are derived from 40

CFR 279.10, 279.11 and 279.12 respectively, which were adopted at

 57 Fed. Reg.

 41613-15, on September 10,

 1992.

 This section

concerns applicability.

~jub

52

Section 739.110(a)

 states the presumption that used oil is

to be recycled unless it is disposed or arrangements are made for

its disposal.

Section 739.110(b)

 addresses mixtures of used oil and

hazardous waste.

 Mixtures of used oil and

 a hazardous waste that

is listed in subpart D of Part 721 are regulated as hazardous

waste, rather than as used oil.

Section 739.110(b) (1) (B)

 contains the presumption that used

oil containing more than 1,000 ppm total halogens is presumed to

be a hazardous waste listed in 35 Ill. Adm. Code 721.subpart

D.

The subsection provides the way to rebut the presumption.

 Under

specified circumstances, the presumption does not apply to

metalworking oils or fluids containing paraffins and used oils

contaminated with chiorofluorocarbons.

Part 739 does not include a definition for “metalworking

oils or fluids” and neither does the Act or pre-existing state

regulations.

 The Board solicits comment as to whether this

phrase ought to be defined.

Section 739.110(b) (2)

 addresses mixtures of used oil and

characteristic hazardous waste.

 Mixtures of used oil and

hazardous waste that exhibit a hazardous waste characteristic

 identified in

 35 Ill. Adm. Code 721.subpart C are regulated as a

hazardous waste rather than as used oil.

 Where a mixture does

not exhibit a characteristic of hazardous waste or of

ignitibility,

 it is regulated as used oil.

 Under Section

739.110(b) (3) mixtures of used oil and conditionally exempt small

quantity generator hazardous waste regulated under 721.105 are

regulated as used waste oil.

Other mixtures regulated as used oil are:

 used oil with

non—hazardous solid wastes

 (Section 739.110(c))

 and most used oil

and fuels or other products (Section 739.110(d)).

 Mixtures of

used oil with products are generally subject to regulation as

used oil under this Part.

 Mixtures of used oil and diesel fuel

mixed on-site by the generator of the used oil for use in the

generator’s own vehicles are not subject to this Part once the

used oil and diesel fuel have been mixed.

 Prior to mixing, the

used oil

 is subject to the requirements of 739.Subpart C

(Standards for Used Oil Generators).

Under Section 739.110(e) (1), materials reclaimed from used

oil that are used beneficially and are not burned for energy

recovery or used in a manner constituting disposal (e.g., re—

refmed lubricants)

 are not used oil and thus are not subject to

this Part, and are not solid wastes and are thus not subject to

the hazardous waste regulations of Parts 720 through 726,

 726,

720, and 124 as provided in Section 721.3(c) (2) (i).

01 L;2-O860

53

Under Section 739.110(e) (2), materials produced from used

oil that are burned for energy recovery (e.g., used oil fuels)

are subject to regulation as used oil under this Part.

Under Section 739.110(e) (3),

 except as provided in

subsection

 (e)(4), materials derived from used oil that are

disposed of or used in a manner constituting disposal are not

used oil and thus are not subject to this Part, but are solid

wastes and thus are subject to the hazardous waste regulations of

Parts 720 through 726,

 728, 720, and 705 if the materials are

identified as hazardous waste.

Under Section 739.110(e) (4), re-refining distillation

bottoms that are used as feedstock to manufacture asphalt

products are not subject to this Part at this time, and not

subject to the hazardous waste regulations of Parts 720 through

726, 728,

 720, and 705 at this time.

Under Section 739.110(f),

 wastewater, the discharge of which

is subject to regulation under either section 402 or section

307(b)

 of the Clean Water Act (including wastewaters at

facilities which have eliminated the discharge of wastewater),

contaminated with de ininimis quantities of used oil are not

subject to the requirements of Part 739.

 For purposes of this

subsection,

 “de minimis” quantities of used oils are defined as

small spills,

 leaks,

 or drippings from pumps, machinery, pipes,

and other similar equipment during normal operations or small

amounts of oil lost to the wastewater treatment system during

washing or draining operations.

 This exception will not apply if

the used oil is discarded as a result of abnormal manufacturing

operations resulting in substantial leaks,

 spills, or other

releases, or to used oil recovered from wastewaters.

The above section limits the definition of “de minimis” to

that subsection only.

 The Board solicits comment as to whether

“de minimis used oil” has a different meaning in any other Part.

Under Section 739.110(g), used oil that is placed directly

into a crude oil or natural gas pipeline is subject to the

management standards of Part 739 only prior to the point of

introduction to the pipeline.

 Once the used oil is introduced to

the pipeline, the material is not regulated by this Part.

Under Section 739.110(h),

 used oil produced on vessels from

normal shipboard operations is not subject to this Part until it

is transported ashore.

Under Section 739.110(i), PCB-containing used oil regulated

under Part 721

 is exempt from regulation under this Part.

Section 739.110

 Used oil specifications.

L~2-Q86

54

Used oil burned for energy recovery, and any fuel produced

from used oil by processing, blending, or other treatment,

is

regulated under Section 739.110 unless it is shown not to exceed

any of the allowable levels of the constituents and properties

in

the specification shown in Table A4.

 Once used oil that is to

be burned for energy recovery has been shown not to exceed any

specification and the person making that showing complies with

Sections 739.172

 (On—specification used oil fuel),

 739.173

(Notification), and 739.174(b)

 (Tracking), the used oil is no

longer subject to this Part.

The Board solicits comment as to whether a definition for

off-specification used oil should be added to the definitions

section.

Table A states “Used oil not exceeding any specification

level

 is not subject to this part when burned for energy

recovery”.

 Restated, by eliminating the negatives: Used oil

exceeding any specification level is subject to this part when

burned for energy recovery.

 The footnotes after the table state:

The specification does not apply to mixtures of used

oil and hazardous waste that continue to be regulated

as hazardous waste

 (see Section 739.110(b)).

 Used oil

containing more than 1,000 ppm total halogens is

presumed to be a hazardous waste under the rebuttable

presumption provided under Section 739.110(b) (1). Such

~

 Table A appears as follows:

Table

A-Used

Oil

Not

exceeding

 Any Specification Level

 Is Not Subject to This Part When

Burned

for

Energy ~

Constituent/property

Allowable

Level

Arsenic

 5 ppm

maximum.

Ca~niijn

ppm

maximum.

Chromium

ppm

maximun.

Lead

 100 ppm

maximum.

FLash

point

 100 °Fminimum.

Total halogens

 4,000 ppm

maximun.2

FOOTNOTE:

‘

The specification does not apply to mixtures of

used

 oil and hazardous waste that

continue

to be reguLated as hazardous waste (see Section 739.110(b)).

FOOTNOTE:

2

Used oil containing more than 1,000 ppm total halogens

 is presumed to be a hazardous waste

under the rebuttable presuT~tionprovided under Section 739.110(b)(1). Such used oil

 is subject to 35

Ill.

 Ado. Code 726.subpart

H

 rather

 than

 this

 Part when

burned

for

 energy

 recovery

 unless

the

presu~tionof mixing can be successfully rebutted.

0862

55

used oil is subject to 35 Ill. Adm. Code 726.subpart H

rather than this Part when burned for energy recovery

unless the presumption of mixing can be successfully

 rebutted.

Thus,

 it appears that oil that which exceeds the given

levels are subject to regulation under this part rather than as

hazardous waste,

 the mixture is regulated as a hazardous waste or

has more than 1,000 ppm total halogens

 (unless the presumption of

hazardousness

 is rebutted).

 The Board interprets the above

information in the following manner:

1.

 Used oil that is to be burned for energy recovery and has

been shown

 to exceed any specification and the person making

that showing complies with Sections 739.172

 (On-specification

used oil fuel),

 739.173

 (Notification),

 and 739.174(b)

(Tracking),

 is no longer subject to this Part.

2.

 Used oil exceeding any specification level

 is subject to Part

739 when burned for energy recovery.

3.

 The specification does not apply to mixtures of used oil and

hazardous waste that continue to be regulated as hazardous waste

(see Section 739.110(b), and therefore these mixtures are subject

to 35 Ill.

Athn.

 Code 726.subpart

 H, rather than this part.

4.

 Used oil containing more than 1,000 ppm total halogens is

presumed to be a hazardous waste under the rebuttable presumption

provided under Section 739.110(b) (1), and

 is there regulated

under 35 Ill. Adm. Code 726.subpart H rather than this part.

5.

 Except, used oil containing more than 1,000 ppm total

 halogens where the presumption of hazardousness is rebutted under

Section 739.110(b) (1)

 is regulated under Part 739.

The Board solicits comment as to whether these

interpretations are correct and generally solicits comments on

this matter.

Section 739.112

 Prohibitions

Section 739.112 addresses various prohibitions on the use of

used oil.

 For instance, under Section 739.112(a) used oil shall

not be managed in surface impoundments or waste piles unless the

units are subject to regulation under Parts 724 or 725.

 Under

Section 739.112(b) the use of used oil as a dust suppressant is

prohibited, except when such activity takes place in one of the

states listed in Section 739.182(c).

 Section 739.182(c),

specifies where off—specification used oil fuel may be burned for

energy recovery.

L~.2-0863

56

SUBPART C-STANDARDS

FOR USED OIL

GENERATORS

Section 739.120

 Applicability.

Sections 739.120, 739.121,

 739.122, 739.123,

 739.124,

739.121,

 739.122,

 739.123, and 739.124 are derived from 40 CFR

279.20, 279.21,

 279.22,

 279.23,

 279.24,

 279.21,

 279.22,

 279.23,

and 279.24, respectively, which were adopted at 57 Fed. Reg.

41615—16 on September 10,

 1992.

Section 739.120 generally applies to all used oil

 generators.

 A used oil generator is any person, by site, whose

act or process produces used oil or whose act first causes used

oil to become subject to regulation.

 However, under Section

739. 120(a) (1) Household “do-it—yourselfer” used oil generators

are not subject to regulation under this Part.

 Under Section

739.120(a) (2), vessels at sea or at port are not subject to this

subpart.

 For purposes of this subpart, used oil produced on

vessels from normal shipboard operations

 is considered to be

generated at the time it is transported ashore.

 The owner or

operator of the vessel and the person(s) removing or accepting

used oil from the vessel are co—generators of the used oil and

are both responsible for managing the waste in compliance with

this subpart once the used oil

 is transported ashore.

 The co-

generators may decide among them which party will fulfill the

requirements of this subpart.

Under Section 739

•

120 (a) (3), mixtures of used oil and diesel

fuel mixed by the generator of the used oil

 for use in the

generator’s own vehicles are not subject to this Part once the

used oil and diesel fuel have been mixed.

 Prior to mixing, the

used oil fuel

 is subject to the requirements of this subpart.

Under Section 739.120 (a) (4)

 farmers who generate an average

of

 25 gallons per month or less of used oil from vehicles or

machinery used on the farm in a calendar year are not subject to

the requirements of Part 739.

Under Section 739.120(b) (1) generators who transport used

oil, except under the self—transport provisions

 of Section

739.124

 (a) and

 (b), must also comply with 739.Subpart E

(Standards for used oil transporter and transfer facilities).

Under Section 739.120(b) (2), generators who process or re—refine

used oil must also comply with 739.Subpart F (Standards for used

oil processors and re-refiners).

 Under Section 739.120(b) (3),

generators who burn off—specification used oil for energy

recovery, except under the on—site space heater provisions of

Section 739.123, must also comply with 739.Subpart G (Standards

for used oil burners who burn off-specification used oil for

energy recovery).

Under Section 739.120(b) (4), generators who direct shipments

‘-~

57

of off-specification used oil from their facility to a used oil

burner or first claim that used oil that is to be burned for

energy recovery meets the used oil fuel specifications set forth

in Section 739.111 must also comply with 739.Subpart H

 (Standards

for used oil fuel marketers).

 Under Section 739.120(b) (5),

generators who dispose of used oil, including the use of used oil

as a dust suppressant, must also comply with 739.Subpart

I

(Standards for use as a dust suppressant and disposal of used

oil).

Generally under Section 739.121, generators are prohibited

 from mixing hazardous waste with used oil.

 The rebuttable

presumption for used oil of Section 739.110(b) (1) (B)5 applies to

used oil managed by generators.

Section 739.122

 Used oil storage.

As specified in Section 739.110(f), wastewaters containing

“de minimis” quantities of used oil are not subject to these

proposed regulations, including the prohibition on storage in

units other than tanks or containers.

 Used oil generators are

subject to all applicable Spill Prevention, Control and

Countermeasures

 (40 CFR Part 112)

 in addition to the requirements

of this Subpart. Used oil generators are also subject to the

Underground Storage Tank (40 CFR part 280)

 standards for used oil

stored in underground tanks whether or not the used oil exhibits

any characteristics of hazardous waste,

 in addition to the

requirements of this subpart.

Moreover, generators shall not store used oil in units other

than tanks,

 containers,

 or units subject to regulation under

Parts 724 or 725.

 The containers and aboveground tanks used to

store used oil at generator facilities must be good condition.

Furthermore, the containers and aboveground tanks, and the fill

pipes used to transfer used oil into underground storage tanks at

generator facilities must be labeled or marked clearly with the

words “Used Oil.”

Under Section 739.120(b) (5) (d), upon detection of a release

of used oil to the environment,

 a generator must stop the

release; contain the released used oil; clean up and manage

properly the released used oil and other materials; and if

necessary to prevent future releases, repair or replace any

~ Section 729.110(b) (1) (B) contains the rebuttable presumption

that used

oil

 containing more than 1,000 ppm total halogens

is

presumed to be a hazardous waste listed in subpart D of Part 721.

Under specified circumstances, the presumption does not apply to

metalworking oils

 or fluids containing paraf ifins

 and used

 oils

contaminated with chlorofluorocarbons.

1~~’,

—

U o

b ~

58

leaking used oil storage containers or tanks prior to returning

them to service.

Section 739.123

 On-site burning in space heaters

Under Section 739.123(a),

 generators may burn used oil in

used oil—fired space heaters where the heater burns only used oil

that the owner or operator generates or used oil received from

household do—it—yourself used oil generators; the heater is

designed to have a maximum capacity of not more than 0.5 million

Btu per hour; and the combustion gases from the heater are vented

to the ambient air.

Section 739.124

 Off—site shipments.

Under Section 739.124, except as provided in subsections

(a)

through

(c)

 of this section, generators must ensure that their

used oil

 is transported only by transporters who have obtained

EPA identification numbers.

 However, generators may transport,

without an EPA identification number, used oil that is generated

at the generator’s site and used oil collected from household do—

it—yourselfers to a used oil collection center or an aggregation

point under the specified conditions.

 In addition, used oil

generators may arrange for used oil to be transported by a

transporter without an EPA identification number if the used oil

is reclaimed under “tolling arrangement” as defined by this

section.

Section 739.124(a)

 has the heading “Self-transportation of

small amounts to ai~rovedcollection centers.”

 (emphasis added).

The Board cannot determine where this approval process is in the

rules and cannot find any criteria for approval.

 The language

implies a permit process of some kind.

 Similar difficulties

occur with Section 739.124 (a) (3) which states:

Section 739.124

 Off—site shipments.

Except as provided in subsections

 (a) through

(C)

 of this

section, generators must ensure that their used oil is

transported only by transporters who have obtained EPA

identification numbers.

a)

 Self—transportation of small amounts to approved

collection centers.

 Generators may transport, without

an EPA identification number, used oil that is

 generated at the generator’s site and used oil

collected from household do—it-yourselfers to a used

oil collection center provided that:

3)

 The generator transports the used oil to a used

oil collection center that is registered.

licensed. permitted. or recognized by a state,

U

U0

59

county,

 or municipal government to manage used

oil.

(Emphasis added)

The Board solicits comment as to whether the transporter

requirement, here and in subsequent provisions, create a need for

further language to adapt them to Illinois’ hazardous

waste/nonhazardous special waste manifest systems.

 The Board

further solicits comment as to whether these sections contemplate

the creation of

 a permit process.

SUBPART D-STANDARDS FOR USED OIL COLLECTION CENTERS

AND

AGGREGATION POINTS

Section 739.130,

 739,131,

 and 739.132 are derived from 40

CFR 279.30,

 279.31, and 279.32, respectively, which were adopted

at 57 Fed. Reg.

 41616,

 on September 10,

 1992.

Section 739.130

 Do-it—yourselfer used oil collection centers.

Under Section 739.130,

 a do—it-yourselfer

 (DIY) used oil

collection centers is any site or facility that accepts or

aggregates, and stores used oil collected only from household do-

 lt—yourselfers.

 Owners or operators of all DIY used oil

collection centers must comply with the generator standards in

739.Subpart C

 (Standards for used oil generators).

Section 739.131

 Used oil collection centers.

Under Section 739.131(a),

 a used oil collection center is

any site or facility that accepts or aggregates and stores used

oil collected from used oil generators regulated under

739.Subpart C who bring used oil to the collection center in

shipments of no more than 55 gallons under the provisions of

Section 739.124(a).

 Used oil collection centers may also accept

used oil from household do—it—yourselfers.

 Owners or operators

of all used oil collection centers must comply with the generator

standards in 739.Subpart C; and must be registered,

 licensed,

permitted or recognized by a state,

 county, or municipal

government to manage used oil.

There

 is not a permit procedure within these rules to become

registered,

 licensed, permitted,

 or recognized by a government

body.

 The Board solicits comment as to whether this regulation

contemplates the creation of a permit process.

Section 739.132

 Used oil aggregation points owned by the

generator.

Section 739.132 defines used oil aggregation point as any

~2-tJ867

60

site or facility that accepts, aggregates or stores used oil

collected only from other used oil generation sites owned or

operated by the owner or operator of the aggregation point, from

which used oil

 is transported to the aggregation point in

shipments of no more than 55 gallons under the provisions of

Section 739.124(b).

 Used oil aggregation points may also accept

used oil from household do—it—yourselfers.

 Owners or operators

of all used oil aggregation points must comply with the generator

standards in 739.Subpart C.

SUBPART

E-STANDARDS

FOR

USED

OIL

TRANSPORTER

AND

TRANSFER

FACILITI ES

Sections

739.140,

739.141,

739.142,

739.143,

 739.144,

739.145,

 739.146, and 739.147 are derived from 40 CFR 279.40,

279.41,

279.42,

279.43,

279.44,

279.45,

 279.46 and 279.47,

respectively, which were adopted at 57

 Fed.

 Reg. 41616—41619, on

September 10,

 1992.

Section 739.140

 Applicability.

Section 739.140 defines used oil transporters as persons who

transport used oil, persons who collect used oil from more than

one generator and transport the collected oil, and owners and

operators of used oil transfer facilities.

 This section does not

apply to:

 on—site transportation; generators who transport

shipments of used oil totalling 55 gallons or less from the

 generator to a used oil collection center as specified in

739.124(a)

and

 (b); transportation of used oil generated by

household do—it—yourselfers from the initial generator to a

regulated used oil generator, collection center, aggregation

point, processor or burner subject to the requirements Part 739.

Except as provided in subsections

 (a) (1) through

 (a) (3)

 of this

section, this subpart does,

 however, apply to transportation of

collected household do—it—yourselfer used oil from regulated used

oil generators, collection centers, aggregation points,

 or other

facilities where household do—lt-yourselfer used oil is

collected.

Transporters who import used oil from abroad or export used

oil outside of the United States are subject to the requirements

of this subpart from the time the used oil enters and until the

time it exits the United States.

Unless trucks previously used to transport hazardous waste

are emptied as described in

 35 Ill.

 Adm. Code 721.107 prior to

transporting used oil, the used oil is considered to have been

mixed with the hazardous waste and must be managed as hazardous

waste unless, under Section 739.110(b), the mixture is determined

not to be hazardous waste.

L~.

—

0 3 6 8

61

Section 739.140(d) provides other, miscellaneous provisions

applicable to transporters.

 In addition, this subsection

contains a typographical error

 (it appears two words are

combined) which the Board has tried to correct.

 The Board

solicits comment as to whether the Board has correctly revised

the error.

Section 739.141

 Restrictions on transporters who are not also

processors

Section 739.141 places restrictions on transporters who are

not also processors or re—refiners.

 Used oil transporters may

consolidate or aggregate loads of used oil for purposes of

transportation.

 However, except as provided in subsection

(b)

of

this section, used oil transporters may not process used oil

unless they also comply with the requirements for processors

in

739.Subpart

F.

 In addition, transporters may conduct incidental

processing operations that occur in the normal course of used oil

transportation, but that are not designed to produce

 (or make

more amenable for production of) used oil derived products unless

they also comply with the processor/re-refiner requirements in

739.Subpart

F.

Section 739.142

 Notification.

Section 739.142(a) requires used oil transporters to obtain

an EPA identification number and explains the EPA number

application process.

Section 739.143

 Used oil transportation.

Section 739.143(a) regulates where a used oil transporter

may deliver used oil to.

 Section 739.143(b) regulates the

shipping of used oil and Section 739.143(c)

 regulates used oil

discharges.

 The Board interprets this section to mean that the

transportation of more than 55 gallons of used oil is not

regulated if it is being delivered to a Do-It—Yourself collection

center,

 a collection center,

 or an aggregation point.

 The Board

solicits comment on this interpretation.

Section 739.144

 Rebuttable presumption for used oil.

Section 739.144 regulates the manner in which a used oil

transporter must determine the total halogen content of used oil

being transported or stored at a transfer facility.

 Section

739.144(c)

 provides the method by which an owner or operator may

rebut the presumption the used oil is hazardous where it contains

greater than or equal to 1,000 ppm total halogens.

Section 739.144(d)

 requires records of analyses conducted or

information used to comply with subsections

 (a),

 (b), and

(c)

of

this section be maintained by the transporter for at least

3

O~L~2-ü569

62

years.

Section

739.144

states

part:

Section

739.144

Rebuttable

presumption

for

used

oil.

a)

 To ensure that used oil is not a hazardous waste under

 the rebuttable presumption of 739.110(b) (1) (ii),

the

used oil transporter must determine whether the total

halogen content of used oil being transporter or stored

at a transfer facility is above or below 1,000 ppm.

b)

 The transporter must make this determination by:

1)

 Testing the used

oil;

or

2)

 Applying knowledge of the halogen content of the

used oil in light

 of the materials or processes

used.

(emphasis added)

The Board

 is concerned that the above test does not appear

to require the transporter to possess any level of expertise or

background when determining the halogen content of the used oil.

Simply put, the above subsection may be interpreted that a

transporter with no technical background in materials or

processes would be allowed to determine whether the oil does

contains more than 1,000 halogens ppm based on his own knowledge

and experience.

This issue arises again in Section 739.163

 (regulating

burners of used oil)

 and Section 739.153 (regulating processors).

The issue in Section 739.153 is mitigated by Section 739.155

which requires processors to state the basis of their knowledge.

The Board solicits comment on this matter.

Section 739.145

 Used oil storage at transfer facilities.

As specified in Section 739.110(f), wastewaters containing

“de minimis” quantities of used oil are not subject to the

requirements of Part 739, including the prohibition on storage in

 units other than tanks or containers.

 Used oil transporters are

subject to all applicable Spill Prevention, Control and

Countermeasures

 (40 CFR Part 112)

 in addition to the requirements

of this subpart.

 Used oil generators are also subject to the

Underground Storage Tank

 (35 Ill. Adm. Codes 730 and 731)

standards for used oil stored in underground tanks whether or not

the used oil exhibits any characteristics of hazardous waste,

in

addition to the requirements of this subpart.

4 ~

—

63

Section

739.145(a)

defines

used

oil

transfer

facilities

transportation related facilities including loading docks,

parking areas, storage areas,

 and other areas where shipments of

used oil are held for more than 24 hours during the normal course

of transportation and not longer than 35 days.

 Transfer

facilities that store used oil for more than 35 days are subject

to regulation under 739.Subpart F.

 Owners or operators of used

oil transfer facilities may not store used oil in units other

than tanks, containers,

 or units subject to regulation under 35

Ill.

 Adm. Code 724 or 35

 Ill. Adm.

 Code 725.

Section 739.145(c)

 requires containers and aboveground tanks

used to store used oil at transfer facilities to be in good

condition.

Section 739.145(d)

 regulates secondary containment for

containers,

 Section 739.145(e) regulates secondary containment

for existing aboveground tanks and Section 739.145(f) regulates

secondary containment for new aboveground tanks.

 Section

739.145(g)

 specifies labeling requirements.

Section 739.145(h) provides the clean-up steps an owner or

operator of a transfer facility must perform in response to

releases.

Section 739.146

 Tracking.

Section 739.146 requires used oil transporters to keep a

record of each used oil shipment accepted for transport and each

shipment of used oil that is delivered to another used oil

transporter,

 or to a used oil burner, processor/re—refiner, or

disposal facility.

 In addition, used oil transporters must also

maintain the records described in subsections

 (b) (1) through

(b) (4)

 of this section for each shipment of used oil exported to

any foreign country.

Section 739.147

 Management of residues.

Section 739.147 requires transporters who generate residues

from the storage or transport of used oil to manage the residues

as specified in Section 739.110(e).

SUBPART F-STANDARDS FOR USED OIL PROCESSORS AND RE-REFINERS

Sections 739.150, 739.151,

 739.153, 739.154,

 739.155,

739.156, 739.157, 739.158 and 739.159 are derived from 40 CFR

279.51,

 279.52,

 279.53,

 279.54,

 279.55,

 279.56,

 279.57,

 279.58,

and 279.59 respectively, which were adopted at 57 Fed. Reg.

41619—23, on September 10,

 1992.

Section 739.150

 Applicability.

~J1~~uu

64

Section 739.150(a)

 defines “processing” as chemical or

physical operations designed to produce from used oil, or to make

used oil more amenable for production of,

 fuel oils,

 lubricants,

or other used oil-derived products.

 Processing includes,

 but is

not limited to:

 blending used oil with virgin petroleum

products, blending used oils to meet the fuel specification,

filtration,

 simple distillation,

 chemical or physical separation

and re—refining.

The requirements of this Section 739.150 do not apply to

transporters that conduct incidental processing operations that

occur during the normal course of transportation as provided in

Section 739.141; or burners that conduct incidental processing

operations that occur during the normal course of used oil

management prior to burning as provided in Section 739.161(b).

Under Section 739.150(b)

 processors or re—refiners who

generate used oil must also comply with 739.Subpart C;

processors who transport used oil must also comply with

739.Subpart E;

 and processors who burn off-specification used oil

for energy recovery must also comply with 739.Subpart G, except

 as provided in subsections

 (b) (3) (A) and

 (b) (3) (B) of this

section.

 Processor or re—refiners burning used oil for energy

recovery are not subject to 739.Subpart G where the used oil is

burned in an on—site space heater that meets the requirements of

Section 739.123; or the used oil

 is burned for purposes of

processing used oil, which is considered burning incidentally to

used oil processing;

Section 739.150(4)

and

 (5) provide additional compliance

requirements.

Section 739.151

 Notification.

Section 739.151(a)

and

 (b) require used oil processors and

re—refiners who have not previously complied with the

notification requirements of RCRA section 3010 to comply with

these requirements and obtain an EPA identification number and

provides the mechanics of notification.

Section 739.152

 General facility standards.

Section 739.152(a) provides preparedness and prevention

standards including maintenance and operation of facility,

required equipment,

 alarm systems, fire control equipment, water

spray systems, testing and maintenance of equipment,

 alarm

system, required aisle space, arrangements with local

authorities, contingency plan and emergency procedures, named

emergency coordinator, and emergency procedures.

 The emergency

coordinator’s responsibilities are fully spelled out in

subsection

 (b) (6).

 Applicable responsibilities for the emergency

 coordinator vary, depending on factors such as type and variety

I ~2-0872

65

of used oil handled by the facility, and type and complexity of

the facility.

Section 739.153

 Rebuttable presumption for used oil.

Section 739.153(a)

 requires the owner or operator of a used

oil processing facility to determine whether the total halogen

content of used oil managed at the facility

 is above or below

1,000 ppm to ascertain whether the used oil at the facility is

hazardous.

 Section 739.153(b) provides the method by which that

determination

made.

Under

Section

739.153(c),

where

the

oil

presumed

hazardous waste because it has been mixed with halogenated

hazardous waste listed in 35 Ill. Adm. Code 721.subpart D, The

owner or operator may rebut the presumption by demonstrating that

the used oil does not contain hazardous waste.

The rebuttable presumption does not apply to metalworking

oils

fluids

containing

chlorinated

paraff

ins,

they

are

processed,

through

tolling

agreement,

reclaim

metalworking

oils

fluids

used

oils

contaminated

with

chiorofluorocarbons

(CFCs)

 removed from refrigeration units where

the

CFCs

are

destined

for

 reclamation.

Section

739.154

Used

oil

management.

This

Section

regulates

the

managements

units

and

secondary

containment

systems,

response

releases,

and

closure

requirements.

Section

739.155

Analysis

plan.

Owners

operators

used

oil

processing

 facilities must

develop

and

written

analysis

plan

 describing the

procedures

that

will

used

comply

with

the

analysis

requirements of Section 739.153 and,

 if applicable,

 Section

739.172. The owner or operator must keep the plan at the

facility.

 As specified in this section, the plan varies

according to whether the rebuttable presumption for used oil

applies or whether off-specification used oil is involved.

Section 739.156

 Tracking.

Section 739.156 requires used oil processors to keep a

record of each used oil shipment accepted for processing, and a

record of each shipment of used oil that is shipped to a used oil

burner, processor or re—refiner,

 or disposal facility.

 Record

requirements are included in this section.

Section 739.157

 Operating record and reporting.

U;4~U0

66

Section 739.157 requires the owner or operator to keep a

written operating record at the facility.

 Record requirements

are included in this section.

 Furthermore, used oil processors

must report to the Agency,

 in the form of a letter, on a biennial

basis

 (by March

 1 of each even numbered year), the EPA

identification number, name,

 and address of the processor; the

calendar year covered by the report; and the quantities of used

oil accepted for processing and the manner

 in which the used oil

is processed,

 including the specific processes employed.

Section 739.158

 Off-site shipments of used oil.

Section 739.158 requires used oil processors or who initiate

shipments of used oil off-site to ship the used oil using a used

oil transporter who has obtained an EPA identification number.

Section 739.159

 Management of residues.

Section 739.159 requires owners and operators who generate

residues from the storage, or processing of used oil to manage

the

residues

specified

Section

 739.110(e).

SUBPART

G-STANDARDS

FOR

USED

OIL

BURNERS

WHO

BURN

OFF-

SPECIFICATION

USED

OIL

FOR

ENERGY

RECOVERY

Sections

739.160,

739.161,

739.162,

739.163,

739.164,

739.165,

739.166 and 739.167 are derived from 40 CFR 279.60,

 279.61,

279.62,

 279.63,

 279.64,

 279.65,

 279.66 and 279.67 respectively,

which were adopted at

 57 Fed. Reg.

 41623-25, on September 10,

1992.

Section 739.160

 Applicability.

Section 739.160(a) defines a used oil burner as a facility

where used oil not meeting the specification requirements in

Section 739.111

 is burned for energy recovery in devices

identified in Section 739.161(a).

 However, facilities burning

used oil for energy recovery in an on—site space heater under the

provisions of Section 739.123 and used oil

 is burned by a

processor for purposes of processing used oil are not subject to

this Subpart.

Section 739.160(b)

 states other provisions applicable to

burners of used oil.

Section 739.160(c) exempts persons burning used oil that

meets the used oil fuel specification of Section 739.111,

provided that the burner complies with the requirements of

 739.Subpart H, from complying with this section.

Section 739.161

 Restrictions on burning.

Li.2-087L1!

67

Section 739.161(a)

 allows off—specification used oil fuel to

be burned for energy recovery in industrial furnaces and boilers

identified in 35 Ill. Adm. Code 720.110.

 These boilers must be

industrial boilers located on the site of a facility engaged in a

manufacturing process where substances are transformed into new

products,

 including the component parts of products, by

mechanical or chemical processes; utility boilers used to produce

electric power,

 steam, heated or cooled air,

 or other gases or

fluids for sale; used oil-fired space heaters provided that the

burner meets the provisions of Section 739.123; or hazardous

waste incinerators subject to regulation under 35 Ill. Adm. Code

724.subpart 0 and 35 Ill. Adm. Code 725.subpart 0.

Under Section 739.161(b), burners of used oil may not

process used oil unless they also comply with the requirements of

739.Subpart

 F, except where the used oil burners aggregate off-

specification used oil with virgin oil or on-specification used

oil for purposes of burning.

 Used oil burners may not aggregate

for purposes of producing on—specification used oil.

Section 739.162

 Notification

Under Section 739.162(a), used oil burners who have not

previously complied with the notification requirements of

RCRA

section 3010 must comply with these requirements and obtain an

EPA identification number.

 Section 739.162(b)

 provides the

mechanics of notification.

Section 739.163

 Rebuttable presumption for used oil.

To ensure that used oil managed at a used oil burner

facility is not hazardous waste under the rebuttable presumption

of Section 739.110(b) (1) (B), Section 739.163 requires a used oil

burner to determine whether the total halogen content of used oil

managed at the facility is above or below 1,000 ppm.

 Section

739.163(b) provides the methodology.

Under Section 739.163(c), where the used oil contains

greater than or equal to 1,000 ppm total halogens, it is presumed

to be a hazardous waste because it has been mixed with

halogenated hazardous waste listed in 35 Ill. Adm. Code

721.subpart D. The methodology to rebut the presumption is

provided in this section.

 The rebuttable presumption does not

apply to metalworking oils and fluids containing chlorinated

paraffins,

 if they are processed, through a tolling arrangement

as described in Section 739.124(c), to reclaim metalworking oils

and fluids or to chlorofluorocarbons

 (CFCs) removed from

refrigeration units where the CFCs are destined for reclamation.

Section 739.165

 Tracking.

Section 739.165 requires used oil burners to keep a record

U I~~~2-3375

68

 of each used oil shipment accepted for burning.

Section 739.166

 Notices.

Section 739.166 requires that prior to accepting the first

shipment of off—specification used oil fuel from a generator,

transporter,

 or processor,

 the burner must provide to the

generator,

 transporter, or processor a one—time written and

signed notice certifying that the burner has notified EPA stating

the location and general description of his used oil management

activities; and the burner will burn the used oil only in an

industrial furnace or boiler identified in Section 739.161(a).

Section 739.167

 Management of residues.

Section 739.167 requires burners who generate residues from

the storage or burning of used oil to manage the residues as

specified in Section 739.110(e).

SUBPART H-STANDARDS FOR USED OIL FUEL

MARKETERS

Sections 739.170,

 739.171,

 739.172,

 739.173, 739.174, and

739.175

 were derived from 40 CFR 279.70,

 279.71,

 279.72,

 279.73,

279.74 and 279.75, respectively, which were adopted at 57 Fed.

Reg. 41625—26 on September 10,

 1992.

Section 739.170

 Applicability.

Section 739.170 applies to any person who directs a shipment

of off—specification used oil from their facility to a used oil

burner; or first claims that used oil that is to be burned for

energy recovery meets the used oil fuel specifications set forth

in Section 739.111.

Persons who are used oil generators, and transporters who

transport used oil received only from generators, unless the

generator or transporter directs a shipment of off—specification

used oil from their facility to a used oil burner not subject to

this section.

 However, processors who burn some used oil fuel

for purposes of processing are considered to be burning

incidentally to processing.

 Thus, generators and transporters

who direct shipments of off-specification used oil to processor

who incidently burn used oil are not marketers subject to this

section.

In addition, persons who direct shipments of on—

specification used oil and who are not the first person to claim

the oil meets the used oil fuel specifications of Section 739.111

are not subject to regulation by this section.

Any person subject to the requirements of this Section must

~~2-0876

69

also comply with Subpart C (Standards for Used Oil Generators);

Subpart E

 (Standards for Used Oil Transporters and Transfer

Facilities); Subpart F

 (Standards for Used Oil Processors and Re-

refiners); or Subpart G (Standards for Used Oil Burners who Burn

Off-Specification Used Oil for Energy Recovery).

Section 739.171

 Prohibitions.

Section 739.171 provides that a used oil fuel marketer may

initiate a shipment of off-specification used oil only to a used

 oil, burner who has an EPA identification number; and burns the

used oil in an industrial furnace or boiler identified in Section

739.161(a).

Section 739.172

 On-specification used oil fuel.

Section 739.172 provides that a generator,

 transporter,

processor, or burner may determine that used oil that is to be

burned for energy recovery meets the fuel specifications of

Section 739.111 by performing analyses or obtaining copies of

analyses or other information documenting that the used oil fuel

meets the specifications.

 Such used oil that is to be burned for

energy recovery is not subject to further regulation under this

part.

Section 739.173

 Notification.

Section 739.173(a) requires a used oil fuel marketer subject

to the requirements of this section who has not previously

complied with the notification requirements of

RCRA

Section 3010

must comply with these requirements and obtain an EPA

identification number.

 The section provides information on

obtaining an EPA identification number.

Section 739.174

 Tracking.

Section 739.174 requires any used oil generator who directs

a shipment of off-specification used oil to a burner or who first

claims that used oil that is to be burned for energy recovery

meets the fuel specifications under Section 739.111 to keep a

record of each shipment of used oil to a used oil burner.

 Record

requirements are provided in this Section.

Section 739.175

 Notices.

Section 739.175 contains notice and certification

requirements for used oil generator, transporter, or processor

who directs the first shipment of off-specification used oil fuel

to a burner.

SUBPART I—STANDARDS FOR USE AS A DUST SUPPRESSANT

AND

DISPOSAL OF

USED OIL

01 ~.2-O877

70

Sections 739.180,

 739.181,

 and 739.182 were derived from 40 CFR

279.80,

 279.81 and 279.82 respectively, and were adopted at

57

Fed. Reg 41626,

 on September 10,

 1992.

Section 739.180

 Applicability.

The requirements of this subpart apply to all used oils that

cannot be recycled and are therefore being disposed.

Section 739.181

 Disposal.

Section 739.181(a)

 requires that used oils that are

identified as

 a hazardous waste and cannot be recycled in

accordance with this Part must be managed in accordance with the

hazardous waste management requirements of 35 Ill. Adm. Codes 720

through 726,

 728,

 270 and 124.

Section 739.181(b)

 requires that used oils that are not

hazardous wastes and cannot be recycled under this Part must be

disposed in accordance with the requirements of Parts 257 and

258.

Section 739.182

 Use as a dust suppressant.

Section 739.182(a) prohibits the use of used oil as a dust

 suppressant, except when such activity takes place in one of the

states listed in subsection

(c)

 of this section.

(b) A State may petition (e.g.,

 as part of its authorization

petition submitted to EPA under 35 Ill. Adm. Code 271.105

 or by

a separate submission)

 EPA to allow the use of used oil

 (that is

not mixed with hazardous waste and does not exhibit a

characteristic other than ignitibility) as a dust suppressant.

The State must show that it has a program in place to prevent the

use of used oil and hazardous waste mixtures or used oil

exhibiting a characteristic other than ignitibility as

 a dust

suppressant.

 In addition, such programs must minimize the

impacts of use as

 a dust suppressant on the environment.

(c) List of States.

 Reserved

HISTORY OF

RCRA,

UST and UIC ADOPTION

The Illinois UIC (Underground Injection Control), RCRA

(Resource Conservation and Recovery Act), and liST (Underground

Storage Tank)

 regulations, together with more stringent state

regulations particularly applicable to hazardous waste,

 include

the following Parts of Title 35 of the Illinois Administrative

Code:

702

 RCRA

and UIC Permit Programs

0I~~2~~878

71

703

 RCRA

Permit Program

704

 UIC Permit Program

705

 Procedures for Permit Issuance

709

 Wastestreain 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

 Hazardous Waste Injection Restrictions

Special provisions for

RCRA

cases are included in Parts 102,

103,

 104 and 106 of the Board’s procedural rules.

History of

RCRA

and State Hazardous Waste Rules Adoption

The Board has adopted and amended the Resource Conservation

and Recovery Act

 (RCRA)

hazardous

 waste rules

 in several dockets.

Dockets R81-22 and R82-18 dockets dealt with the Phase I

RCRA

regulations.

 USEPA granted Illinois Phase

 I authorization on May

17,

 1982, at 47 Fed.

 Reg. 21043.

 The Board adopted

RCRA

Phase II

regulations in Parts 703 and 724 in dockets R82-19 and R83—24.

USEPA granted final authorization of the Illinois

RCRA

“base

program” on January 31,

 1986,

 at 51 Fed. Reg. 3778 (January 30,

1986).

 USEPA granted authorization to “Cluster I revisions” to

the Illinois program and granted partial Hazardous and Solid

Waste Amendments

 (HSWA)

 (Pub.

L.

 98-616,

 Nov.

8,

 1984)

authorization effective March 5,

 1988,

 at 53 Fed. Reg.

126

(January

5,

 1988).

 USEPA authorized certain subsequent

amendments and granted further partial HSWA authorizations

effective April

30,

 1990,

 at 55 Fed.

 Reg. 7320 (March

1,

 1990),

and June 3,

 1991,

 at 56 Fed. Reg. 13595

 (April

3,

 1991).

 USEPA

codified its approvals of the Illinois program at 40 CFR 272.700

and 272.701 on November 13,

 1989,

 at 54 Fed. Reg.

37649

 (Sep.

12,

1989), and on March 31,

 1992, at 57 Fed. Reg. 3731 (Jan.

31,

1992).

 The entire listing of all RCRA identical in substance

rulemakings follows

 (with the period of corresponding federal

revisions indicated in parentheses):

R81—22

 45 PCB 317, September 16, 1981 & February 4,

 1982;

6 Ill. Reg. 4828,

 April 23,

 1982, effective May

17,

 1982.

 (5/19/80 through 10/1/81)

R82—18

 51 PCB 31, January 13,

 1983;

 7 Ill. Reg.

 2518,

March 4,

 1983, effective May 17,

 1982.

 (11/11/81

through 6/24/82)

~2-O879

72

R82—19

 53 PCB 131, July 26,

 1983,

 7 Ill. Reg.

 13999,

October

28,

 1983,

 effective October

2,

 1983.

(11/23/81 through 10/29/82)

R83—24

 55 PCB 31, December 15,

 1983,

 8 Ill. Reg.

 200,

January

6,

 1984, effective December 27,

 1983.

(Corrections to R82—19)

R84—9

 64 PCB 427

&

 521, June 13

 & 27,

 1985;

 9 Ill. Reg.

11964, August

2,

 1985, effective July

8

 & 24,

1985.

 (1/19/83 through 4/24/84)

R85—22

 67 PCB 175,

 479, December 20,

 1985 and January

9,

1986;

 10 Ill. Reg.

 968, January 17,

 1986,

effective

January

1986.

(4/25/84

through

6/30/85)

R86—1

 71 PCB 110, July 11,

 1986;

 10 Ill. Reg.

 13998,

August 22,

 1986,

 effective August 12,

 1986.

(7/1/85 through 1/31/86)

R86—l9

 73 PCB 467, October 23,

 1986;

 10 Ill. Reg. 20630,

December 12,

 1986, effective December

2,

 1986.

(2/1/86 through 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,

effective

March

23,

1987.

Correction

PCB

235, April

16,

 1987;

 11 Ill. Reg.

 8684, May 1,

1987, effective April

21,

 1987.

 (4/1/86 through

6/30/86)

R86—46

 79 PCB 676, July 16,

 1987;

 11 Ill. Reg.

 13435,

August 14,

 1987, effective August

4,

 1987.

(7/1/86 through 9/30/86)

R87—5

 82 PCB 391, October

15,

 1987;

 11 Ill. Reg.

 19280,

November 30,

 1987, effective November

10

&

12,

1987.

 (10/1/86 through 12/31/86)

R87—26

 84 PCB 491, December

3,

 1987;

12

 Ill. Reg.

 2450,

January 29,

 1988, effective January

15,

 1988.

(1/1/87 through 6/30/87)

R87—32

 Correction to R86-1;

 81 PCB 163,

 September 4,

1987;

 11 Ill.

 Reg.

 16698, October 16,

 1987,

effective September 30,

 1987.

R87—39

 90 PCB 267, June 16,

 1988;

 12 Ill.

 Reg.

 12999,

August 12,

 1988,

 effective July 29,

 1988.

 (7/1/87

through 12/31/87)

P11t20880

73

R88—16

 93 PCB 513, November 17,

 1988;

 13 Ill. Reg.

 447,

January

13,

1989,

effective

December

28,

1988.

(1/1/88 through 7/31/88)

R89—1

 103 PCB 179, September 13,

 1989;

 13 Ill. Req.

18278, November 27,

 1989, effective November

13,

1989.

 (8/1/88 through 12/31/88)

R89—9

 109 PCB 343, March 8,

 1990;

14

 Ill.

 Reg.

 6225,

April 27,

 1990, effective April 16,

 1990.

 (1/1/89

through 6/30/89)

R90—2

 113 PCB 131, July 3,

 1990;

 14 Ill. Reg.

 14401,

September

1990,

effective

August

22,

1990.

(7/1/89 through 12/31/89)

R90—11

 121 PCB 97, April 11,

 1991; corrected at 122 PCB

305,

May

23,

1991;

corrected

125

PCB

117,

August

8,

 1991; uncorrected at 125 PCB 435, August

22,

 1991;

 15 Ill. Reg.

 9323, effective June

17,

1991.

 (Third Third Land Disposal Restrictions)

(4/1/90 through 6/30/90)

R90—17

 Delisting Procedures

 (See below)

R91—1

 125 PCB 119, August

8,

 1991;

 15 Ill. Reg.

 14446,

effective

September

30,

1991.

(Wood

Preserving

Rules)

 (7/1/90 through 12/30/90)

R91—13

 132 PCB 263, April

9,

 1992;

16

 Ill.

 Reg.

 9489,

effective June 9,

 1992.

 (Boilers and Industrial

Furnaces

 (BIFs)

 Rules)

 (1/1/91 through 6/30/91)

R9l—26

 129 PCB 235, January 9,

 1992;

 16 Ill. Reg.

 2600,

effective February

3,

 1992.

 (Wood Preserving

Rules Compliance Dates)

R92—1

 136 PCB 121, September 17,

 1992;

 16 Ill. Reg.

17636, effective November

6,

 1992.

 (7/1/91

through 12/31/91)

R92—10

 January 21,

 1993;

 17 Ill. Req.

 5625, effective

March 26,

 1993.

 (Leak Detection Systems

 (LDS)

Rules)

 (1/1/92 through 6/30/92)

R93-4

 Next

RCRA

Docket.

 (7/1/92 through 12/31/92)

On September 6,

 1984, the Third District Appellate Court

upheld the ‘Board’s actions in adopting R82—l9 and R83—24.

(Commonwealth Edison Co. v.

 PCB,

 127 Ill. App.

 3d 446; 468 N.E.2d

1339

 (3d Dist.

 1984).)

lt.2-OBB

74

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,

December 21,

 1984,

 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 P.A.

85—1048, effective January

1,

 1989.

The

Board

has

adopted

USEPA

delistings

the

request

Amoco

and Envirite

 (the date of the corresponding federal action

is included in parentheses):

R85—2

 69 PCB 314, April 24,

 1986;

 10 Ill. Reg.

 8112, May

16,

 1986, effective May

2,

 1986.

 (9/13/85)

R87—30

 90 PCB 665, June 30,

 1988;

 12 Ill. Reg.

 12070,

July 22,

 1988, effective July 12,

 1988.

(11/ 14/86)

R91—12

 128 PCB 369,

 December 19,

 1991;

 16 Ill. Reg.

 2155,

effective January 27,

 1992.

 (USX)

Subsequently, upon the April 30,

 1990 federal authorization

of Illinois granting waste delistings, USEPA transferred pending

delisting petitions to the Board.

 The Board docketed these as

site-specific rulemaking proceedings (the name of the petitioner

waste generator appears in parentheses):

R90—18

 Dismissed at 123 PCB 65, June 6,

 1991.

 (USX Corp,

South Works)

R9O—19

 Dismissed at 116 PCB 199, November

8,

 1990.

(Woodward Governor Co.)

R90—23

 Dismissed at 124 PCB 149, July 11,

 1991.

(Keystone Steel

 & Wire Co.)

The Board has modified the delisting procedures to allow th

use of adjusted standards in lieu of site—specific rulemakings:

R90—17

 119 PCB 181, February 28,

 1991;

 15 Ill.

 Reg.

 7934,

effective

May

1991.

Waste generators have filed Part 106 adjusted standards

petitions for solid waste determinations with the Board pursuant

to Section 720.130

 (generator name in parentheses):

AS89—4

 Dismissed at 105 PCB 269, November

15,

 1989.

(Safety-Kleen Corp.)

~i:.2-0882

75

AS89—5

 Dismissed at 113 PCB 111, July 3,

 1990.

 (Safety—

Kleen Corp.)

AS9O-7

 Dismissed at 124 PCB 125, July 11,

 1991.

 (Quantum

Chemical

Co.)

The

Board

has

granted

hazardous

waste

delistings

way

adjusted

standards

(generator

name

parentheses):

AS91—1

 130 PCB 113, February 6,

 1992.

 (Keystone Steel

and Wire Co.)

AS91—3

 February 4,

 1993; opinion issued March 11,

 1993.

(Peoria Disposal Co.)

The Board has procedures to be followed in cases before it

involving the

RCRA

regulations:

R84—10

 62 PCB 87,

 349, December 20,

 1984 and January 10,

1985;

 9 Ill. Reg.

 1383, effective January 16,

1985.

The Board also adopted special procedures to be followed in

certain determinations under Part 106.

 The Board adopted these

Part 106 special procedures in R85-22 and amended them in R86-46,

listed above.

One Part 106 adjusted standard proceeding filed pursuant to

728.106 sought relief from a prohibition against land disposal

(petitioner’s name in parentheses):

AS9O—6

 Dismissed at 136 PCB 93, September 17,

 1992.

(Marathon Petroleum Co.)

Other adjusted standard proceedings sought delayed closure

of land disposal units

 (petitioners’ names in parentheses):

AS9O—8

 130 PCB 349, February 27,

 1992.

 (Olin Corp.)

AS91—4

 131 PCB 43, March

11,

 1992.

 (Amoco

Oil

Co.)

Still another adjusted standard proceeding relates to

substantive physical requirements of the

RCRA

regulations:

AS91-10

 Presently pending.

 (Cabot Corp.)

In another regulatory proceeding,

 the Board has considered

granting temporary relief from the termination of an exclusion of

a hazardous waste listing in the form of an emergency rule

(Petitioner’s name in parentheses):

R91-11

 Presently pending.

 (Big River Zinc Corp.)

C ~

383

76

The

Board

has

also

adopted

requirements

limiting

and

restricting the landfilling of liquid hazardous wastes, hazardous

wastes containing halogenated compounds,

 and hazardous wastes

generally:

R81—25

 60 PCB 381, October 25,

 1984;

 8 Ill. Req.

 24124,

December

14,

 1984,

 effective December

4,

 1984.

R83—28

 68 PCB 295,

 February 26,

 1986;

 10 Ill. Reg.

 4875,

March

21,

1986,

effective

March

1986.

R86-9

 Emergency regulations adopted at 73 PCB 427,

October 23,

 1986;

 10 Ill. Reg.

 19787, November 21,

1986, effective November 5,

 1986.

The Board’s action in adopting emergency regulations in R86-

9 was reversed by the First District Court of Appeals.

 (Citizens

for a Better Environment v.

 PCB,

 152 Iii.

 App.

 3d 105, 504 N.E.2d

166

(1st

Dist.

1987).)

History of UIC Rules Adoption

The

Board

has

adopted

and

amended

Underground

Injection

Control

 (UIC)

 regulations in several dockets to correspond with

the federal regulations.

 One such docket,

 R82-18, was a

RCRA

docket.

 USEPA authorized the Illinois UIC program on February

1,

1984,

 at 49 Fed. Reg.

 3991.

 The entire listing of all UIC

rulemakings follows

 (with the period of corresponding federal

revisions indicated in parentheses):

R81—32

 47 PCB 93, May

13,

 1982;

 6 Ill. Reg.

 12479,

October

15,

 1982,

 effective February

1,

 1984.

(7/7/81 through 11/23/81)

R82—18

 51 PCB

 31, January 13,

 1983;

 7 Ill. Req.

 2518,

March

4,

 1983,

 effective May 17,

 1982.

 (11/11/81

through

6/24/82)

R83—39

 55 PCB 319,

 December 15,

 1983;

7

 Ill. Reg.

 17338,

December

20,

1983,

effective

December

19,

1983.

(4/1/83)

R85—23

 70 PCB 311

 & 71 PCB 108, June 20

 & July

11,

 1986;

10 Ill. Reg.

 13274, August

8,

 1986,

 effective July

28

&

29,

 1986.

 (5/11/84 through 11/15/84)

R86—27

 Dismissed at 77 PCB 234, April

16,

 1987.

(No

USEPA amendments through 12/31/86).

R87—29

 85 PCB 307, January 21,

 1988;

 12 Ill. Reg.

 6673,

April

8,

 1988, effective March

28,

 1988.

 (1/1/87

through 6/30/87)

0ft2-088,14

R88—2

 90 PCB 679, June 30,

 1988;

 12 Ill. Reg.

 13700,

August 26,

 1988, effective August

16,

 1988.

(7/1/87 through 12/31/87)

R88—17

 94 PCB 227, December 15,

 1988;

 13 Ill. Reg.

 478,

January 13,

 1989, effective December 30,

 1988.

(1/1/88

through

6/30/88)

R89—2

 107 PCB 369, January 25,

 1990;

 14 Ill. Reg.

 3059,

March 2,

 1990, effective February 20,

 1990.

(7/1/88 through 12/31/88)

R89—11

 111 PCB 489, May 24,

 1990;

 14 Ill. Reg.

 11948,

July 20,

 1990, effective July 9,

 1990.

 (1/1/89

through 11/30/89)

R90—5

 Dismissed at 109 PCB 627, March 22,

 1990.

(No

USEPA amendments 12/1/89 through 12/31/89)

R90—14

 122 PCB 335, May 23,

 1991;

 15 Ill. Reg.

 11425,

effective July 24,

 1991.

 (1/1/90 through 6/30/90)

R91—4

 Dismissed at 119 PCB 219, February 28,

 1991.

(No

USEPA amendments 9/1/90 through 12/31/90)

R91—16

 Dismissed at 128 PCB 229, December 6,

 1991.

(No

USEPA amendments 1/1/90 through 6/30/91)

R92—4

 Dismissed at 133 PCB 107, April

9,

 1992.

(No

USEPA amendments 7/1/91 through 12/31/91)

R92—l3

 February 4,

 1993;

 17 Ill.

 Reg.

 6190, effective

April

5,

 1993.

 (1/1/92 through 6/30/92)

R93—6

 This Docket.

 (7/1/92 through 12/31/92)

In one proceeding filed,

 a petitioner seeks an adjusted

standard from a UIC land disposal restriction, pursuant to the

procedures outlined above with respect to the

RCRA

program

(petitioner name in parentheses):

R92-8

 Presently pending.

 (Cabot Corp.)

AGENCY

BOARD

ACTION?

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.

0i~~2-0085

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:

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.

2.

 Is there a clear standard for action such that the

Board can give meaningful review to an Agency decision?

3.

 Does the action result in exemption from the permit

requirement

itself?

so,

Board

action

generally

required.

4.

 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.

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

often

are

differences

the

nomenclature

for

these

decisions between the USEPA and Board regulations.

HSWA-DRIVEN

RULES

The Hazardous and Solid Waste Act (HSWA) amended the

Resource Conservation and Recovery Act in late 1984.

 HSWA

required USEPA to promulgate certain rules.

 Such rules are

referred to as “HSWA—driven” rules.

 These rules function

 differently than other

RCRA

rules with respect to effective dates

and State authorization.

If a rule is HSWA-driven, USEPA so specifies, usually at the

beginning of the preamble in the Federal Register, and in a

section, near the end of the preamble, headed “Applicability of

Rule in Authorized States”.

 The latter includes an explanation,

such

the

following

from

Fed.

Req.

3480,

January

29,

1992

R92—106:

Prior to’the Hazardous Solid Waste Amendments of 1984

HSWA,

State

with

final

authorization

administered

its hazardous waste program in lieu of EPA’s

administering the Federal program in that State.

The

Federal requirements no longer applied in the

authorized State, and EPA could not issue permits for

any facilities that the State was authorized to permit.

When new, more stringent Federal requirements were

promulgated or enacted, the State was obligated to

enact equivalent authority within specified time

frames.

 New Federal requirements did not take effect

in an authorized State until the State adopted the

requirements as State law and was authorized for the

requirements.

In contrast, under

RCRA

section

3006(g),

new

requirements and prohibitions imposed by HSWA take

effect in authorized States at the same time they take

effect in non-authorized States.

 EPA is directed to

carry out these requirements and prohibitions in

authorized States, including the issuance of permits,

until the State

 is granted authorization to do so.

While States must still adopt HSWA-related provisions

as State law to retain final authorization, HSWA-based

requirements still apply in authorized States in the

interim.

Sections 7.2 and 22.4(a)

 of the Act require the Board to

adopt an equivalent to all

RCRA

rules USEPA adopts, within a

specified time after promulgation by USEPA,

 subject only to an

extension of time.

 The Board has to adopt the rules more quickly

than

required

USEPA

CFR

271.

(R91-l,

22.)

The

effect

non-HSWA

rule

fairly

straightforward:

new USEPA rule becomes effective as Illinois law when the Board

adopts

it.

 (R91—l3,

p.

 30.)

 It becomes a full

RCRA

requirement

subject to federal oversight when USEPA authorizes the rule.

The

HSWA-driven rule is effective immediately in Illinois as a

 federal law upon USEPA adoption.

 The rule becomes effective as a

State rule upon Board adoption.

 A dual federal/State regulatory

system then exists, until USEPA authorizes the Illinois rule.

(R91—13, p.

 43.)

 The federal rule then vanishes, leaving only

the Illinois rule, which is then a full

RCRA

requirement subject

to federal oversight.

6Complete references

to

RCRA

 dockets

 are contained

 in the

history portion at the end of this opinion.

IL~Uo

80

Whether a rule

HSWA-driven

becomes

important

the

context

effective

dates.

USEPA

rules

often

include

schedule

under

which

operators

must

comply.

(R91-1,

12;

R91-13,

54.)

For

non-HSWA

rule,

the

Board

generally

advances

the

effective

date

schedule

reflect

the

effective

date

the

Board rule.

 (R91—1,

p.

13;

 R92—10,

p.

 46.)

 This affords

advance notice to operators,

 and avoids a retroactive rule.

On the other hand,

 operators are required to comply with the

HSWA—driven compliance schedule as

 a matter of federal law.

The

Board therefore generally retains the federal compliance dates

for HSWA—driven rules.

FEDERAL

STAYS

USEPA

frequently

adopts

RCRA rule with

tight

compliance

dates, and then “stays” portions of it.

 This can pose a problem

at the State level.

 Sections 7.2 and 22.4(a)

 of the Act may

require the Board to adopt the federal rule after it has been

stayed, since the time frames under the Act are keyed to the

“adoption” or “promulgation” of USEPA rules,

 rather than their

effective dates.

Stays may happen at the federal level in two ways.

 In the

simplest situation USEPA publishes a notice of the stay in the

Federal Register.

 (R91—1,

p.

11;

 R91—13,

p.

30;

 R92—10,

p.

46.)

 In the more complicated situation,

 a federal court

invalidates a USEPA rule, ordering that enforcement of the rule

be stayed pending further USEPA action on

 a remand.

 (R91—1,

p.

15;

 R92—11,

p.

4.)

 This situation usually arises after the

Board has adopted a rule.

 Unless

USEPA

follows

with

regulatory stay published in the Federal Register,

 it may be

difficult to determine the precise scope of the stay.

The Board has usually deals with stays by adopting the

language of the USEPA rule, but adding a provision noting the

stay.

 This approach allows the Board to meet the letter of the

identical in substance mandate without requiring Illinois

operators to meet federal time schedules which have been stayed

for the rest of the country.

 In recent years USEPA has adopted

regulatory language establishing the stay, allowing the Board to

deal with the stay by simply bringing a later Federal Register

into an update Docket.

 (R91—1,

p.

12;

 R91—13,

p.

31;

 R91—26,

p.

1;

 R92—10,

p.

2,

 16.)

If the Board is unable either to postpone a rulemaking, or

to adopt language effecting a stay,

 the Board regards the USEPA

stay or federal court decision as binding on the derivative Board

rule, pending Board action.

 (In the Matter of the Pretreatment

Regulations, R86-44, December

3,

 1987,

p.

39;

 R90—2, Order of

August 9,

 1990,

p.

2;

 R91—1,

p.

11;

 R92—11,

p.

4.)

~2—0888

EDITORIAL CONVENTIONS

As a final note,

 the federal rules have been

edited to

establish

 a uniform usage throughout the Board’s regulations.

For

example, with respect to “shall”,

 “will”,

 and “may”

—

 “shall”

is used when the subject of a sentence has to do something.

“Must”

used

when

someone

has

something,

but

that

someone

not

the

subject

the

sentence.

“Will”

used

when

the

Board

obliges

itself

something.

“May”

used

when

choice

provision

optional.

“Or”

used

rather

than

“and/or”,

and

denotes

“one

both”.

“Either”.

“or”

denotes

“one

but

not

both

“.

“And”

denotes

“both”.

CONCLUSION

This

opinion

supports

the

Board’s

order

this

same

date.

The

Board

will

not

file

the

adopted

rules

until

days

after

the

date

this

order,

allow

time

for

post-adoption

comments,

particularly from the agencies involved

 in the authorization

process.

ORDERED.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

opinion

was

adopted

the

~7ZC

day

_____________,

1993,

vote

~?~°

‘?.

/~/

Dorothy

Gunn,

Clerk

Illinois

po~,iution

Control

Board

ri

‘~

—

~OOO

JUJ