ILLINOIS POLLUTION CONTROL BOARD

May 21,

1992

IN THE MATTER OF:

)

R91—13

RCRA UPDATE, USEPA REGULATIONS)

)

 Identical

 in Substance

(1/1/91

—

 6/30/91)

)

 Rules)

SUPPLEMENTAL OPINION AND ORDER

-OF

THE BOARD

 (by J. Anderson):

On April

9,

 1992, the Board entered a final Opinion and

Order in this matter.

 The Order indicated that the final rules

would not be filed prior to May 8,

 1992, to allow time for post—

adoption comment.

 The Board has received the following post—

adoption comment:

PC

7

 Scientific Control Laboratories, Inc., April 15,

1992

PC 8

 Craftsman Plating and Tinning Corporation, April

21,

1992

PC

9

 Northwestern Plating Works,

 Inc., April 21,

1992

PC 10

 United States Environmental Protection Agency

(USEPA), Nay 8,

1992

USEPA noted a typographical error in language added in the

April

9,

 1992 Order.

 In Section 721.103(c) (2) (8)

(iii),

the

standard for arsenic should be “0.055” instead of “0.056” mg/L.

The Board continues to appreciate USEPA’s careful review of the

RCRA updates and will of course correct this error in the rules

 before

 filing.

PC

 7 through 9 are closely related and will be dealt with

together.

 The comments relate to the treatability exceptions1 in

Section 728.144.

 As was discussed on p.

 87 in the April 9,

1992

Opinion, and on p.

 71 in the December 19,

 1991,

 Proposed Opinion,

USEPA adopted two “treatability variances” by way of amendment to

40 CFR 268.44(0),

 on March 25,

 1991,

 at 56 Fed.

 Reg.

 12355.

‘The USEPA rules refer to this as a “treatability variance”.

This term could easily be confused with Board variances pursuant to

Title

 IX of the Act.

 The Board has therefore avoided using the

term “variance”

 in the rules to describe actions other than Title

IX variances.

As

 discussed below,

 there will be

 two methods of

getting

a

 “treatability

 variance”

at

the

 State

 level.

 After

authorization, one would get an “adjusted treatment standard” from

the Board by the adjusted standards mechanism of Section 28.1 of

the Act.

 Prior to

 authorization,

 one would get a

 “treatability

exception”

by

 identical

in

 substance

 rulemaking

 under

 Section

22.4(a)

 of the Act.

33—5Y3

2

Section 728.144 was adopted in R87-5,

 and amended in R89-1.

As adopted by the Board,

 it utilized the adjusted standards2

procedures of 35 Ill. Adm. Code 106 and Section 28.1 of the Act

for making these determinations.

 The general language of 40 CFR

268.44 did not make it clear that USEPA would use rulemaking when

granting a specific “treatability variance”.

 Therefore,

 in R87—5

and R89-1, the Board did not specifically address the possibility

of handling treatability exceptions in an

 “identical in

substance” rulemaking.

 Instead, the equivalent Section 728.144

provides only for Board action on an adjusted standard petition.

In the Proposed Opinion, the Board took note of the USEPA

treatability exceptions, and requested comment as to whether it

ought to amend Section 728.144 to provide for adoption of

specific treatability exceptions by identical in substance

rulemaking,

 and as to whether it ought to adopt the exceptions in

question.

 As discussed in those Opinions, the Board cannot

generally tell whether a specific treatability exception granted

by USEPA to a particular entity needs to be adopted as part of

the Illinois program, absent a comment or request from a person

with knowledge of the facts.

 The Board received no comment on

this issue,

 and, on April

9,

 1992, adopted a Final Opinion and

Order omitting the specific treatability exceptions.

In the post—adoption comment,

 the coinmenters have indicated

that the Board does need to adopt these provisions as part of the

Illinois program, and have asked that it do so in this Docket.

As is discussed below, the Board will make the requested

changes in this Docket.

 This discussion supersedes the

discussion of Section 728.144 on pages

 87 through 89 in the April

9,

 1992, Opinion.3

2While a Board variance would grant temporary relaxation of

a

rule based on a showing of arbitrary and unreasonable hardship, and

a compliance plan, the USEPA “treatability variance” is potentially

permanent, and does not necessarily require a showing of hardship.

As

 discussed

in

the

 prior

 Dockets,

a

 Board

 adjusted

 standard

pursuant

to

 Section

 28.1

of

the

Act

is

the

 most

 appropriate

procedure for such a determination.

35o as not to risk delay of these rulemakings by having to deal

with the problems inherent in tackling new issues at the end of the

process,

 we make

a

 special

 effort

 to point

 out problems

 at the

Proposed Opinion stage,

 as we did~inthis case,

 so as to get “up—

front” responses during the 45 day comment period before adoption.

Since PC 7,

 8 and

 9 all came in after the adoption stage, we would

 welcome being informed of any notice or other problem that might be

contributing to the delayed response.

~33—59/4

3

The Board has modified Section 728.144 to allow adoption of

treatability exceptions by identical in substance rulemaking.

If

a request showing the need for adoption as part of the Illinois

program is received during the course of an Update Docket, the

Board will handle the matter

 in that Docket.

 Otherwise,

the

request will be assigned to a separate Docket, and will be

handled as an identical in substance,

 specific rule.

 We note

that the adjusted standard procedure will become the only

procedure following authorization and State assumption of this

program component.

The Board will determine whether a treatability exception

needs to be adopted based on the same standard as is used for

delistings in Section 720.122.

 The Board will adopt the

federally-granted exception on a showing that a waste will be

“generated or managed in Illinois”.

The Board will thus adopt these two treatability exceptions

in this Docket.

USEPA has adopted the treatability exceptions as part of a

new table in 40 CFR 268.44(o).

 The text of the table is similar

to the CCWE (constituent concentration in waste extract) and CCW

(constituent concentration in waste) tables in 40 CFR 268.41 and

268.43.

 The format of those tables was such that they could not

 be adopted within the text of a Section meeting Administrative

Code Division format requirements.

 The Board therefore adopted

the tables as “Tables A and B”, which float at the end of the

Part,

 like appendices.

 The Board will adopt the treatability

exceptions as a similar Table, which will be referenced into

Section 728.144(0).

While 40 CFR 268.44(o)

 is specific to CCW “treatability

variances”, USEPA has “reserved” 40 CFR 268.44(m)

and

 (n).

One

could speculate that those subsections are reserved for future

CCWE and treatment requirement “treatability variances”,

 such

that the CCWE,

 treatment requirement and CCW “variances” would

appear in the same order as the underlying federal requirements.

In line with this,

 the Board will “reserve” Tables F and G, and

add a new Table H for the CCW treatability exceptions.

There is no obvious place for the new procedural

requirements for entering a treatability exception into the

Illinois rules by the “identical

 in substance” mode.

 The Board

has used Section 728.144(m).

 However, this may have to be moved

if USEPA uses 40 CFR 268.44(m)

 for another type of treatability

exception.

There appears to be a minor error

 in the text of the table

in 40 CFR 268.44(0)

 Table

HJ.

 The wastewater standard for

Northwestern Plating for “cyanides (total)” includes a reference

I

13—595

4

to

“i”

 “C”.

 However, this note is specific to “cyanides

(amenable)”.

 The Board has moved the note to that line.

In the footnotes, USEPA uses the term “facility” repeatedly

to refer to the person who has to certify or comply.

 As defined

in 40 CFR 260.10

 720.110,

 “facility”

 is inanimate.

 The correct

term is “owner or operator”.

 However, as these terms are

defined, they refer only to a hazardous waste management

facility, and its owner and operator, not to the “generator” of

hazardous waste who is shipping waste from a manufacturing plant

for off—site treatment,

 storage or disposal.

 The 40 CFR 268

requirements which are referenced include requirements applicable

both to generators and to owners and operators.

 It is not clear

whether Craftsman Plating and Northwestern Plating are “owners or

operators” of “facilities”, or strictly “generators”.

 The Board

has used “owner or operator”, which tracks “facility”

 in the

USEPA rule more closely, but notes the possible error.

In the April

9,

 1992,

 Final Opinion, the Board also

addressed a number of minor problems in the text of Section

728.144.

 This discussion is repeated in this Order to provide a

complete discussion of Section 728.144 in one place, although

there is no change from the April

9,

 1992,

 Opinion.

The Board has made some minor changes to Section 728.144.

These involve changes to cross references to the delisting

procedures to conform with R90-17.

 In addition,

 the Board has

referenced the newer generic adjusted standards procedure,

 rather

than the former RCRA—specific adjusted standards procedures.

The

Board has added a requirement, patterned after Section

720.122(n) (3), that the Board maintain a list of adjusted

standards in the rules.

 In addition, the Board has added a

paraphrase of Section 28.1(d) (3), which requires the Board to

publish a list of adjusted standards at the end of each fiscal

year in the Illinois Register and Environmental Register

 (See

Section 28.1).

The Board concludes that the text of Section 728.144 be

modified,

 and a new Table H added.

 The complete text

 is as

follows.

 Striking and underlining refer to the existing base

text,

 not the April

9,

 1992,

 text.

ORDER

Section 728.144

 Adjustment of Treatment Standard

a)

 Where the treatment standard is expressed as a

concentration in a wasth or waste extract and a waste

cannot be treated to the specified level,

 or where the

treatment technology is not appropriate to the waste,

the generator or treatment facility may petition to the

I 33—596

5

Board for an adjusted treatment standard.

As

justification, the petitioner shall demonstrate that,

because the physical or chemical properties of the

waste differ significantly from wastes analyzed

in

developing the treatment standard, the waste cannot be

treated to specified level or by the specified methods.

BOARD NOTE:

 40 CFR 268.44 refers to these as “treat—

ability variances”.

 The Board has not used this term

in its rules to avoid confusion with the Board

variances under Title IX of the Environmental

Protection Act.

 The equivalent Board procedures are

art

“adiusted treatment standard” Pursuant to subsections

(a) through

 (1),

 or a “treatability exception” adopted

pursuant to subsections

(in)

 et seq.

 While the latter

is adopted by “identical

 in substance” rulemaking

following a USEPA action, the former

 is an original

Board action which will be the only mechanism following

authorization to the State of this component of the

RCRA program.

b)

 Each petition must be submitted in accordance with the

procedures in 35 Ill.

 Adm. Code 106.Subpart G.

C)

 Each petition must include the following statement

signed by the petitioner or an authorized

representative:

I certify under penalty of law that I have

 personally examined and am familiar with the

information submitted in this petition and all

attached documents, and that,

 based on my inquiry

of those individuals immediately responsible for

obtaining the information,

 I believe that the

submitted information is true, accurate and

complete.

 I am aware that there are significant

penalties for submitting false information,

including the possibility of fine and

imprisonment.

d)

 After receiving a petition for adjuritincnt of a ~

adlusted treatment standard,

 the Board may request any

additional information or samples which are necessary

to evaluate the petition.

e)

 The Board will give public notice and provide an

opportunity for public comment,

 as provided in 35

 111.

Adm. Code 106.

 The fin~i1decision on an adjusted

treatment standard will be published in the

Environmental Register.In conlunction with any updating

of the RCRA regulations, the Board will maintain,

in

this Part,

a

 listing of all adlusted treatment

H—597

6

standards granted by the Board pursuant to this

Section.

 A LISTING OF ALL ADJUSTED STANDARDS GRANTED

PURSUANT TO THIS SECTION WILL BE PUBLISHED IN THE

ILLINOIS REGISTER

AND

ENVIRONMENTAL REGISTER AT THE END

 OF EACH FISCAL YEAR.

 (Section 28.1(d) (3)

 of the

Environmental Protection Act.)

f)

 A generator, treatment facility or disposal facility

that is managing a waste covered by an adjusted

treatment standard shall comply with the waste analysis

requirements for restricted wastes found under Section

728.107.

g)

 During the petition review process, the applicant is

required to comply with all restrictions on land

disposal under this Part once the effective date for

the waste has been reached.

h)

 Where the treatment standard is expressed as a

concentration in a waste or waste extract and a waste

generated under conditions specific to only one site

cannot be treated to the specified level, or where

treatment technology is not appropriate to the waste,

the generator or treatment facility may petition the

Board for a site—specific adjusted treatment standard.

The petitioner shall demonstrate that, because the

physical or chemical properties of the waste differs

significantly from the waste analyzed in developing the

treatment standard,

 the waste cannot be treated to

speOified levels or by the specified methods.

i)

 Each petition for a site—specific adjusted treatment

standard must include the information in 40 CFR

260.20(b) (1)

 through

 (b)(4),

 incorporated by reference

in 35 Ill.

 Adin. Code 720.11135 Ill.

 Adm. Code

720.l20(b)(1) through

 (4).

j)

 After receiving a petition for a site-specific adjusted

treatment standard, the Board may request any

additional information or samples which the Board

determines are necessary to evaluate the application

petition.

k)

 A generator, treatment facility or disposal facility

which is managing.a waste covered by a site-specific

adjusted treatment standard from

 a treatment standard

shall comply with the waste analysis requirements for

restricted wastes in Settion 728.107.

1)

 During the petition review process,

 the petitioner for

a site—specific adjusted treatment standard shall

comply with all restrictions on land disposal under

LI i—3~)R

7

this Part once the effective date for the waste has

been reached.

~

 If USEPA grants a treatability exception by regulatory

action pursuant to 40 CFR 268.44

 (1991)

 and a person

demonstrates that the treatability exception needs to

be adopted as part of the Illinois RCPA program because

the waste is generated or managed in Illinois,. the

Board will adopt the treatability exception by

identical in substance rulemaking pursuant to Section

22.4(a)

 of the Environmental Protection Act.

BOARD NOTE:

 The Board will adopt the treatability

exception during a RCRA update Docket if a timely

demonstration is made.

 Otherwise, the Board will

assign the matter to a separate Docket.

~

 The facilities listed in Table H are excluded from the

treatment standard under Section 728.143(a)

 and Table

B,_and_are subject to the constituent concentrations

listed in Table H.

Section 728.Table H Wastes Excluded from CCW Treatment Standards

The following facilities are excluded from the treatment standard

under Section 728.143(a)

 and Table

 B, and are

 sub-ject to the

following constituent concentrations.

 These facilities have

received a treatability exception by regulatory action from USEPA

pursuant to

 40 CFR 268.44

 (1991),

 and have demonstrated that the

Board needs to adopt the treatability exception as part of the

Illinois RCRA program.

 The Board may also grant an “adjusted

treatment standard” pursuant to Section 728.144.

Facility name and

 Waste

Code

 See Also

 Regulated hazardous

 Wastewaters

Notes

 Nonwaste-

Notes

address

 constituent

 Concentra-

 waters

tion

(mg/I)

 Concentra-

tion

(mg/I)

Craftsman Plating

 F006

 Table A

 Cyanides

 (Total)

i.~2Q

and

 Tinning Corp..

Chicago.

IL

Cyanides (amenable)

 0.86

 Band

30

D

C

Cackniun

1.6

Chromiun

0.32

Nickel

 0.44

NA

Northwestern Plating

 F006

 Table

A

 Cyanides (Total)

1.2

B

970

0

Works. Inc.~Chi-

cago.

II

Cyanicies (amenable)

 0.86

 Band

30

D

I

3

~_5c)~)

8

C

Caciniun

Chromiun

Q.~.1?

Lead

Q~4Q

Nickel

 0.44

Notes:

A

 An owner or operator may certify compliance with these

treatment standards according to the provisions of

Section 728.107.

B

 Cyanide wastewater standards for F006 are based on

analysis of composite samples.

C

 These owners and operators shall comply with 0.86 ing/L

for amenable~çyanidesin the wastewater

 exitiflg. the

alkaline chlorination system.

 These owners an~

operators shall also comply with Section

728.107(a) (4)

for appropriate monitoring frequency consistent with

tha

façi~ities’waste analysis plan.

Cyanide nonwastewaters are analyzed using

SW-846

Method

9010 or 9012, sample size

10

g,

 distillation timg one

hour and fifteen minutes.

 SW-846

 is incorporated by

reference in 35

 Ill. Req. 720.111,

IL~~

Not applicahle.

IT IS SO O3~DERED.

I~. Dorothy M.

 Gunn,. clerk of the Illinois Pollution Control

Board, hereby certify that the above supplemental opinion and

order was adopted on the

~?/--~

 day of

 ~2)~ ~

,~,

 1~92,by

a vote of

________

/

7’

)~

—~

k—’,

Dorothy M.

 Gunn,

 Clerk

Illinois Pollution Control Board

31—601)