ILLINOIS POLLUTION CONTROL BOARD

January 21,

1993

IN

THE

MATTER

OF:

)

)

RCRA UPDATE, USEPA REGULATIONS

)

R92-10

(1/1/92

—

6/30/92)

)

(Identical in Substance

)

Rules)

Ado~tedRule.

Final Order.

OPINION OF

THE

BOARD

(by

3.

Anderson):

By a separate Order, pursuant to Section 7.,2 and 22.4(a) of

the Environmental Protection Act

(Act), the Board is

a~nendingthe

RCRA hazardous waste regulations.

The aLendments involve 35 Iii.

Adin.

Code 702, 703,

720, 721, 724, 725, 726 and 728.

The Board

will not file the adopted rules until 30 days after

the date of

this order, to allow tune for post—adoption coaments,

particularly from the agencies involved in the authorization

process.

Section 22.4 of the Act governs adoption of regulations

establishing the RCRA program in Illinois.

Section 22.4(a)

provides for quick adoption of regulations which are “identical

in substance” to federal regulations; Section 22.4(a) provides

that Title VII of the Act and Section 5 of the Administrative

Procedure Act shall not apply.

Because this rulemaking is not

subject to Section 5 of the.Administrative Procedure Act, it is

not subject to first notice or to second notice review by the

Joint Committee on Administrative Rules (JCAR).

The

federal

RCRA

regulations are found at 40 CFR 260 through 270.

This

rulemaking

updates Illinois’ RCRA rules to correspond with federal

amendments during the period January 1 through June 30, 1992.

The USEPA actions during this period are as follows:

57

Fed.

Req.

Date

Su~mary

14

Jan.

2,

1992

Criteria for listing

toxic hazardous waste.

3486

Jan.

29,

1992

Leak detection system

(“LDS”)

rules for land

disposal units.

5862.

Feb.

18,

1992

Extension of stay for

coatings for wood

preserving drip pads.

7632

Mar.

3,

1992

Mixture and derived-from

rules, “sunset” rule.

8088

Mar.

6,

1992

Third-third corrections.

01381.0765

---

2

20770

May 15,

1992

General “capacity

variance” for “debris”

21534

May 20,

1992

Exclusion of used oil

filters

.

23063

June 1,

1992

Correction

to mixture and

derived-from rules.

27888

June 22, 1992

Exclusion of coke by-

product residues.

28632

June 26,

1992

National capacity

“variance’

for certain

reclaimed lead storage

batteries.

On July 1,

1992, at 57 Fed. Reg. 29220, USEPA also published

a correction to the May 20 used oil filter rule.

In addition, at

57 Fed. Reg.

30658, July 10,

1992, USEPA published corrections to

the toxicity characteristic leaching procedure

(TCLP) rules.

The

Board will address these corrections in this Docket, even though

the corrections are outside

the time frame of this batch period.

Most of the volume of this rulemaking comes

from the leak

detection system

(“LDS”) rules in the January 29,

1992,

Fed. Reg.

USEPA has provided

the

Board with an electronic copy.

Although

the Board has below noted

a.number of editorial errors with this

large rulemaking, these are of a type and frequency expected in

any large project.

The March 3 and June 1,

1992, Federal Registers added an

April 28,

1993,

“sunset” provision to the “mixture and derived

from” rules in 40 CFR 261.3(e)

(Sections 721.103(a) (2) (D) and

(C)

(2) (A)).

However, USEPA repealed the sunset provision at 57

Fed. Reg. 49278, October 30,

1992.

On November 19,

1992, the

Board entered

an order alerting possible commenters about the

repeal.

Section 7.2 of the Environmental Protection Act limits

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

The

October 30,

1992, repeal of the sunset provision is outside

the batch period for R92-1O, which

began

on January 2,

1992.

However, the Board frequent:’ addresses USEPA corrections with

the origina~adoption of the equivalen.

rule, even if the

corrections tall outside the batch period.

The Board does

n~..t

construe section 7.2 as requiring it to adopt incorrect USEPA

rules pending the proper batch period.

If the Board were to delay proposing the repeal of the

sunset provision until the next update docket dealing with USEPA

actions between July 1 and December 31,

1992,

it would risk being

0~I38-0766

---

3

unable to take final action

until after

April

28,

1993.

This

could result in a temporary,

but major difference between the

USEPA and Board rules.

The Board will therefore not adopt

the

sunset provision.

USEPA also terminated the wood pr.serving stays

at

57

Fed.

Reg.

61492, December 24,

1992.

As is discussed

below

in

connection with Section 724.673 and 725.543, the Board is

extending

the stays

of the State rules

until

the Board is

able

to

address

the accompanying revisions to the

wood

preserving rules

in R93—4.

The

USEPA amendments include several site—specific

delistings.

As provided in 35 Ill.

Ads.

Code

720.122(p),

as

amended in 1(90-17, 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.

PUBLIC

The Board adopted a proposal for public comment on

October

16, 1992.

The proposed rules appeared on November 6, 1992, at 16

Ill. Reg. 16776.

The Board has received the following public

conunent:

PC 1

Department of

Commerce

and

Community

Affairs,

Regulatory Flexibility Unit (DCCA), November 12,

1992

PC 2

Administrative Code Division,

December

8, 1992

DCCA indicated that the proposed rules will not

significantly impact small business.

The Code Division noted a

number of minor editorial problems, which have been corrected.

The Board staff has received informal comment from USEPA by

telephone, and has acted on it as discussed below.

The

Board

expects to receive a written comment from USEPA shortly, but,

because of the time limitations discussed below, cannot postpone

this order.

The

Board

will handle this comment

as

post-adoption

comment, and will, if necessary, enter an order modifying this

opinion and order pursuant to the comment.

EXTENSION OF TIME

ORDERS

Section 7.2(b)

of the Act requires that identical in

substance rulemakings be completed within one year after the

first USEPA action in the batch period.

If the Board is unable

to do so it must enter an “extension of time” Order.

The

earliest USEPA action in the Docket was January 2,

1992.

On

December

17,

1992,

the Board entered an extension of time order,

0138-0767

---

4

indicating that January 21,

1993,

is the anticipated completion

date.

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.

AGENCY

OR

BOARD

ACTION?

The USEPA RcRA rules contain decisions

which,

as worded, are

to be made by the USEPA Regional Administrator.

These generally

pose a

question

as to who is supposed to make the decision at the

State level:

USEPA, the Board, the

Agency

or some other entity?

Section 7.2(a)(5)

of the Act requires the Board to specify which

decisions USEPA will retain.

In addition, the Board is

to

specify which State agency is to make decisions, based on the

general division of functions within the

Act

and other Illinois

statutes.

In effectuating this requirement, the Board has almost

always changed “Regional Administrator” to

“Agency”.

However, in

some situations “Regional Administrator” has,

been

changed to

“USEPA” or “Board”.

In situations in which the Board has determined that USEPA

will retain decision-making authority, the Board has replaced

“Regional Administrator” with “USEPA”, so as to avoid specifying

which office within USEPA is to make a decision.

In a few instances in identical in substance rules decisions

are not appropriate for Agency action pursuant to a

permit

application.

Among the considerations in determining the general

division of authority between the Agency and the

Board are the

following:

1.

Is the person making the decision applying a

Board

regulation, or taking action contrary to

(“waiving”) a Board regulation?

It generally

takes some form of Board action to “waive” a Board

regulation.

For example, the Agency clearly has

authority to apply a regulation which says “If A,

do X;

if not A, do y”.

On the other hand,

regul tions

which say “If not

A,

the state shall

waive

X’s are

abm.*

troubling.

2.

Is there a clear standard for action such that the

Board can give meaningful review

to an Agency

decision?

3.

Is there a right to appeal?

Agency actions are

generally appealable to the Board.

0138-0758

---

5

4.

Does this action concern a person who is required

to have a

permit anyway?

If

so there is a pre-

existing permit relationship which can easily be

used as a context for Agency decision.

If the

action concerns a person who does not have a

permit,

it is more difficult to place the decision

into a procedural context which would be within

the

Agency’s

jurisdiction.

Decisions

involving

interim status are often more ambiguous as to

whether

they

are

permit

actions.

5.

Does

the action result in exemption from the

permit

requirement

itself?

If

so,

Board

action

is

generally

required.

6.

Does the decision amount to “determining, defining

or implementing environmental control standards”

within the meaning of Section 5(b) of the Act?

If

so,

it must be made by the Board.

Once it is determined that a decision must be made by the

Board,

rather

than

the Agency, it is necessary to determine what

procedural

context

is

best

suited

for that decision.

There are

four common classes of Board decision:

variance, adjusted

standard,

site specific rulemaking and enforcement.

The first

three are methods by which a regulation can be temporarily

postponed (variance)

or adjusted to meet specific situations

(adjusted standard or site specific rulemaking).

Note that there

are differences in the nomenclature for these decisions between

the

USEPA and Board regulations.

These differences have caused

past misunderstandings with USEPA.

A

variance is initiated by the

operator

filing

a

petition

pursuant to Title IX of the Act and 35 Ill. Ads.

Code 104.

The

Agency files a recommendation as to what action the Board should

take.

The Board may conduct a public hearing,

and must do so if

there is an objection to the variance.

Board variances are:

temporary;

based on arbitrary or

unreasonable hardship;

and,

require a plan for eventual

compliance with the general regulation.

To the extent a USEPA

decision involves these factors, a Board variance is an

appropriate mechanism.

A

variance is not an appropriate mechanism for a decision

which is not based on arbitrary or unreasonable hardship, or

which grants permanent relief without eventual compliance.

To

grant permanent relief, the Board needs to grant a site specific

regulation or an adjusted standard pursuant to Sections 27 or

28.1 of the Act, and 35 Ill.

Ads. Code 102 or 106.

0138-0769

---

6

EDITORIAL

CONVENTIONS

As a final note,

the

rules have been edited to establish a

uniform usage with respect to “shall”, “must”,

“will”, and “may”.

“Shall” is used when the subject of a sentence has to do

something.

“Must” is used when someone has to do something, but

that someone is not

the

subject of the

sentence.

“Will” is used

when

the

Board

obliges itself to do something.

“May”

is

used

when a provision is optional.

Some of the USEPA

rules

appear to

say something other than what was intended.

Others

do not read

correctly when “Board” or “Agency” is

substituted into the

federal rule.

The

Board does not intend to sake

any

substantive

change

in the rules by way of these

edits.

Much of the text discussed below

exists

both

as

a Board and

USEPA rule.

When

discussing one rule set,

the

Board

has

provided

frequent

citations

to

the

other to aid in cross referencing.

These usually appear in brackets following a citation.

For

example,

“40

CFR

270.4

702.181)”

or “Section 702.181

(270.4”.

The first reference is the rule

set

primarily being discussed,

and the second (in brackets

is

the

equivalent (or comparable)

rule in the other set.

The second reference is usually just the

number, with the “40 CFR”, etc., understood.

The following discussion also includes

many

quotations from

the

Board

and USEPA

rule

sets.

Bold

type

is frequently used to

call attention to specific language within

the

quotes.

The

language

in

bold

is

usually.discussed

following

the

quotation.

PART

702:

RCRA AND

UIC

PERMITS

This

Part

includes

permit

rules

which

apply

to

both

the

RCRA

and UIC

program.

Section 702.181

This

Section

is

derived

from

40

CFR

270.4,

which

was

amended

at 57 Fed. Reg. 3486, January 29,

1992, in connection

with

the

new leak detection’ requirements.

As amended, the USEPA rule

reads as follows:

(a) Compliance with a

RCRA permit during

its

term

constitutes compliance, for purposes of enforcement,

with

subtitle

C

of

RCRA

except

for

those

requirements

not

inca

ided

in

the

permit

which:

1Tbe

USEPA

rules

affect

liners, leachate collection and

removal systems and leak detection systems.

For the sake of

brevity, in this opinion, we will refer to these as “leak

detection”

(or

“LDS”),

except where the discussion focuses on

differences among these.

Ui 38-0770

---

7

(1) Become effective by statute;

(2)

Are

promulgated under part 268 of this chapter

restricting the placement of hazardous wastes in or on

the

land;

or

(3)

Are

Dromulaated under

Dart

264

of

this

chaDter

reaardina leak detection systems for new and

reolacement surface

impoundment.

waste

pile,

and

landfill

units,

and

lateral

exDansions

of

surface

imnoundsent.

waste

pile,

and

landfill units.

The

leak

detection system r.auirementa

include double liners.

COA Droarams.

monitoring, action leakaae rates, and

resoonse

action

Dlans.

and

will

be

imolemented

throuah

the Drocedures of ~ 270.42 Class 1*

Dermit

modifications.

The Board

rule,

35 Ill. Ads. Code 702.181(a)

is quite

different:

The existence of a

RCRA

or UIC permit does not

constitute a defense to a violation of the

Environmental Protection Act or this Subtitle, except

for development, modification or operation without a

permit.

However,

a

permit

may

be modified, reissued or

revoked

during

its

term

for

cause

as

set

forth

in

35

Ill.

Ads.

Code

703.270

through 703.273

(RCRA)

and

35

Ill.

Ads.

Code

704.261

~through

704.263

(UIC)

and

Section

702.186.

The

Board

and

USEPA

rules

go

in opposite directions with

respect

to

the

effect

of

the

permit:

while

compliance

with

the

USEPA permit

is

deemed compliance with

the

federal

law,

the

State

permit affords no such protection.

In R81-32

(at p.

7)2,

the

Board

determined

that

this

was

required by Illinois law, citing

Landfill.

Inc..

v.

IPCB

(l978~. 74

Ill.

2d

541.

387

N.E.

2d

258.

The

USEPA

amendment

is setting additional limitations on the

extent

to

which the

RCRA

permit

is

an

enforcement

shield.

These

amendments

are

not

needed

in

the

Illinois

program,

since

the

entire

concept is reversed.

The final sentence of the USEPA

amendment

specifies

that

the

“leak detection system requirements include double liners,

CQA

programs,

monitoring, action leakage rates, and response action

plans, and will be implemented through the procedures of § 270.42

Class 1* permit modifications.”

This is unrelated to the “effect

of permit” subject matter of the remainder of the Section.

It is

2As discussed in the regulatory history below, R81—32

Was

the original adoption of the UIC program.

0138-0771

---

8

possible

that this language needs to

be

inserted

elsewhere.

The

Board

has not, however, done

so,

since

the

language

appears

to

be

merely a statement of intent.

As is

discussed

below,

USEPA

has

specified in the Appendix to Section 270.42 703.App

A

that

these

are

Class

1*

modifications.

Nothing

more

is

needed.

As

is

discussed

in

a

footnote

to

the

1993.

Edition

of

40

CYR

270

•

4(a),

USEPA

inadvertently

dropped

the

following

sentence

in

a

1988

amendment:

Howevir,

a

permit

may

be

modified,

reissued

or

revoked

c~uringits

term

for

cause

as set

forth

The

CFR

indicates

that

USEPA

would

add

the

sentence

back

in

a

future

correction.

USEPA

did

not

do

so

in

this

rulemaking.

The

Board

rule

still

contains

the

sentence,

and

the

Board

will

not

repeal

it at this time.

The Board has updated

the

Board note in this Section, and to

make other minor editorial changes.

However, the substance of

this Section remains the same.

PART

703:

RCRA

PERMITS

This Part

contains

rules

governing

RCRA

permits.

It

is

derived

from

40

CFR

270.

All

of

the

amendments are derived from

the

liner

and

leak detection system

(LDS) rules at 57 Fed. Reg.

3486, January 29,

1992.

Section 703.203

This Section is derived from 40

CFR

270.17, which specifies

the

contents

of

the

RCRA

Part

B

application

module

for

a

surface

impoundment.

The

amendments

(mainly

to

subsection

(b))

reflect

detailed

new

rules, discussed below in

Part

724,

concerning

liners,

leak

detection and removal, and

construction

quality

assurance

(CQA).

As is discussed below in connection with Section 724.321(b),

the

Board

is

utilizing

the

adjusted

standards

procedure

for

the

“alternative

design

and

operating

practices”

determination

for a

surface

impoundment.

At

the

USEPA

level,

40

CFR

270.17(b)

(1)

(703 .203 (b)

(1)

would

require

the

operator

to

submit

information

for

this

determination

with

the

Part

B

permit

application.

At

‘e

State

level,

the

information

would

be

submitted

purs~ant to

a

Part

106

adjusted

sta~dards petition,

as

provided

be...ow

in

Section

724.321(b).

USEPA has informally indicated that

the

adjusted

standards

procedure will be acceptable if it is equivalent to the USEPA

procedure for the “alternative design and operating practices”

0138~0772

---

9

determination.

At the USEPA level, this would

take

place

as

part

of

the

review

of

a

Part

B permit

application

(or

modification).

As

is

discussed

in

general

above,

under

Illinois

law,

certain decisions under the

RCRA

rules are not appropriate as

Agency decisions, but must be made by the Board.

Section

724.321(b)

falls into this category, since it allows a permittee

to

take

action

contrary

to

the

general

rule.

When

the Board

adopted Section 724.321(b), in R82—19, it

provided

that

this

decision was to be made by variance or site—specific rule.

The

variance mechanism would be of limited use for this

type

of

decision,

since

it

could

be

granted

for

no

more than five years.

Since that time, the

adjusted

standards

mechanism

has

been

added

as Section 28.1 of the Act.

This is a

simpler

and

more

appropriate

procedural

vehicle for this

type

of

Board

decision.

The “justification” for the adjusted standard,

set

forth

below

in

Section 724.321,

is identical to the criteria for grant of this

relief

under

40

CFR

264.221.

The procedures for granting an adjusted standard are set

forth in 35 Ill. Ads. Code 106.Subpart G.

They

provide for a

method of review and public participation which is similar to

that

used

by

USEPA

for

the grant of a Part B

RCRA

permit.

The

procedures were summarized in the R90-l7 opinion, at p.

5, which

discussion is repeated here.

The adjusted standard procedure may be initiated by a

petitioner acting alone, orwith the Agency as a co-petitioner.

(Section 106.703.)

The contents of the petition are specified in

Section 106.705.

If the Agency is not a co—petitioner, it is

required to file a response within 30 days after the filing of

the petition,

in which it must recommend a

grant

or denial of

the

petition, and supporting rationale.

(Section 106.714.)

Within 14 days after the filing of the petition, the

petitioner must publish a public notice of the filing of the

petition in a newspaper in the area likely to be affected.

(Section 106.711.)

The notice gives

members

of

the

public

21

days to request a public hearing.

(Section 106.713.)

The

Board

will schedule a hearing if one is requested,

or if it otherwise

determines that one is advisable.

(Section 106

•

801.)

Interested

persons are allowed to present testimony and exhibits.

(Section

106.806.)

A final comment period is allowed following the public

hearing.

(Section 106.807.)

It would be duplicative to require the information in the

permit application also.

All the Agency needs is a copy of

the

Board order on the adjusted standard.

The Board has therefore

amended Section 703.203(b) (1) as follows:

The liner system

(except for an existing portion of a

surface impoundment).

If an exemption from the

0138-0773

---

10

requirement

for a liner is sought as provided by 35

Ill. Ada. Code 724.321(b), submit detailed plane and

engineering

and

hydreqeolegio

reperts

an apprepriate,

desoribing alternate design and

eperating

pr*etiees

that

vill,

in

eonjunotien

with le.atien aepseta,

prevent

the

migration

of

-any hosard.uo

sonatituento

into

the

greund-uater

or

surf see

water at

-any

future

4i.e

a

CODV

of

the

Board

order

aranting

an

adjusted

standard

Dursuant

to

35

Ill.

Ada.

Code

724.321(bI

40

CFR

270.17(b)

(5)

requires

the

operator

to

include

a

proposed

“action

leakage

rate”

and

“response action

plan” with

the

application.

These

are

addressed

below

in

connection

with

Section

724.322

and

724.323.

However,

40

CFR

270.17

does

not

require

the

operator

to

include

the

“proposed

pump

operating

level”

addressed in 40

CFR

264.226(d)(3)

724.326(d)(3).

Since

this appears to be a parallel determination, the Board has added

it to Section 703.203(b) (5), so that the Board rule reads:

Proposed

action

leakage

rate,

with

rationale,

if

required under

35

Ill.

Ada.

Code

724.322,

response

action

plan,

if

required

under 35

Ill.

Ada.

Code

724.323,

and

a

proposed

pump operating~evel,

if

required

under

35

Ill.

Ada.

Code

724.326(d)

(3);

Section

703.204

This

Section

is

derived

from

40

CFR

270.18,

which

specifies

the

contents

of

the

RCRA

Part

B

permit

application

module

for

a

waste

pile.

Section

703.204(c)

(1)

(A)

(270.18(c)

(1)(i))

contains

the

permit

application

module

for

the

“alternate

designs”

demonstration

in

Section

724.351(b),

below.

For

the

reasons

discussed

above

with

Section

703.203(b)

(1),

the

Board

is

requiring

a

copy

of

the

Board

order

with

the

permit

application,

rather

than

a

repetition

of

the

information.

The

main

amendments

are

in

Section

703,204

(C)

(1)

(B)

—

(E).

There

are

no

major

problems

with

the

text.

The

language

concerning

the pump operating level is absent from the waste pile

application, as discussed below with Section 724.352.

Section 703.204(d)

(270.18(d)

rrrntains an erroneous cross

reference

which

the

Board

has correct~.d: “703.183(g,~)”.

Section

703.207

This Section is derived from 40

CFR

270.21,

which

specifies

the

contents

of

the

RCRA

Part

B

permit application module for a

landf i.

The

main

amendments

are

to

Section

703.207(b)

(1)

(B)

-

(E).

01 38-o77~

---

1.

Section

703.207(b)

(l)(A)

(270.21(b)(1)(ifl.contains

the

“alternative

designs”

application

module

related

to

Section

724

•

401 (b), below.

For

the

reasons

discussed

above

in

connection

with

Section

703.203(b)

(1)

(A),

the Board

is replacing the

detailed

information

request

in

the

application

with

a

requirement

to

include

the

Board

order

granting

the

adjusted

standard.

The

Board

has

added

a

“proposed

pump

operating

level”

to

this

Section

for

use

in

Section

724.403(c)

(3),

below,

for

reasons

similar

to

those

discussed

above.

The

text

of

Section

703.207(b)(1)(E)

is:

proposed action leakage rate, with rationale, if

required under 35 Ill. Ada.

Code 724.402,

and

response

action plan,

if required under 35 Ill. Ada. Code

724.404, and proposed pump operating level,

if required

under

35 Ill.

Ada.

Code

724.403;

The Federal Register for 40

CFR

270.21(b) (1) (v) contains an

erroneous cross reference to “264.303” for the response action

plan, which the Board has corrected

in

703.207(b) (1) (E)).

This

should read “264.304” (724.404.~

The

Fed. Reg. includes a revised text for section 270.21(c)

(703.207(c)):

(c) A description of how each landfill, including the

double liner system, leachate collection and removal

system,

leak detection system,

cover

system,

and

appurtenances for control of

run—on and

run—off, will

be

inspected

in

order

to

meet

the

requirements

of

~

264.303(a),

(b),

and

(c)

of

this

chapter.

This

information must be included in

the

inspection

plan

submitted

under

§

270.14(b)

(5);

The

existing

language

of

Section

270.21(c)

(703.207(c))

governs

the

permit

application

for

the

“exemption”

of

former

Section

264.302

(724.402),

which

was

repealed following HSWA

(RB6-1).

Retention

of

the

Section

was

an

error

in

both

the

USEPA

and

Board

rules.

The

new

language

governs

the

“inspection

plan”

associated

with

the

LDS

rules.

The

text

of

Section

703.207(c)

(270.21(c)

is:

3This is somewhat confusing, because the USEPA rule is

citing to the pump operating level instead of the response action

plan.

However,

as discussed above, the Board is modifying this

rule

to address both the pump operating level and the response

action plan.

Therefore Section 724.403 winds up also being

cited

in the Board rule.

0138-0775

---

12

A description of how each landfill, including the

double liner system, leachate collection and removal

system, leak detection system, cover system, and

appurtenances for control of run-on and run-off, will

be inspected in order to meet the requirements of 35

Ill. Ada. Code 724.403(a),

(b),

and

(c).

This

information must be included in the inspection plan

submitted under Section 703

•

183

(e);

This language in similar to Section 270.21(d)

(703.207(d)).

The Board solicited comment on the possibility that USEPA

intended to amend that Section,

rather than to replace subsection

(C).

Another possibility was that subsection

(d) continued to

govern landfills which are not subject to the LDS rules.

The

Board received no response, and has retained Section 703.207(d)

(270.21(d)):

A description

of how each landfill, including the

liner and cover systems, will be inspected in order to

meet

the

requirements

of

the

35

Ill.

Ada.

Code

724.403(a) and

(b).

This information cb.~4must be

included in the inspection plan submitted under Section

703.183(e);

Section 703.Appendix A

This Appendix is drawn

frOm

40

CFR 270.42, Appendix I.

It

specifies the

type

of

permit

modification

procedure

to be used

for various changes.

The amendments add items

(B) (7),

(H) (6) and

(7),. and

(J)

(7) and (8), dealing with changes to the construction

quality assurance (CQA)

plan, and modifications to meet the new

liner and leak detection and removal requirements.

The

procedures are specified in Section 703.280 ct seq.,

which

are

not

involved

in

this rulemaking.

The permittee may

make a Class 1 change followed by notification to

the

Agency.

The

permittee must notify the Agency in advance of a Class

2

change, and may make the change unless the Agency objects.

Class

3 modifications require prior approval.

Several of the new types of changes are “Class 1*”.

As

provided in Section 703.281(a) (2) and

(b), the Agency

must

give

prior written approval for a Class 1* change.

Public notice is

given following the Agency approval.

PART

720:

GENERAL

PROVISIONS

This

Part

specifies

definitions,

incorporations

by

reference

and other general provisions governing the hazardous waste

program.

It is

drawn

from 40

CFR

260.

The USEPA amendments are

drawn entirely from 57 Fed. Reg. 3486, January 29,

1992, the

amendments to the liner and leak detection requirements.

0138-0776

---

13

Section 720.110

Definitions

The proposed definition of “qualified groundwater scientist”

was adopted in R92-1, with revisions to the text.

Therefore, the

text has been revised to conform with R92-l,

and

the

underlining

has been removed.

The

Board

has

added

a

definition

of

“LDS”,

an

acronym

for

“leak detection system” which is used sporadically in the USEPA

rules.

The Board will use this acronym in this opinion, and in

the body of the rules.

The

Board

will

restate

the

definition

of

the

acronym at places to avoid confusion.

USEPA has added a new definition and amended a second:

“replacement unit” and “suap”.

The first definition poses

several

problems.

It reads as follows:

Replacement unit means a landfill, surface

impoundment, or waste pile unit

(1)

from which all or

substantially all of the waste is removed, and

(2)

that

is subsequently reused to treat, store, or dispose of

hazardous waste. “Replacement unit” does not apply to a

unit from which waste is removed during closure, if the

subsequent reuse solely involves the disposal of waste

from that unit and other closing units or corrective

action areas at the facility,

in

accordance

with an

approved

closure

plan

or

IPA or

Itate

approved

corrective action.

The structure of the definition violates

two

basic Code

Division format rules:

One cannot have numbered paragraphs in a

definition;

and, one cannot break a numbered

list

out in the

middle of a paragraph.

Retaining the list structure would

involve turning the definition inside out.

However, this appears

to be unnecessary, since the definition is understandable with

the numbers simply removed.

The

next

problem

is

the

“‘Replacement

unit’

does

not

apply

to...” language.

In a definition, this would be better stated as

“does not include”.

The final

problems

involve

the

exclusion

of

units which are

subsequently used solely for disposal of waste from that unit or

other closing units at the facility.

Such units would not be

“replacement units”, and hence would not be subject to the new

liner and leachate collection requirements.

For example, see

Section 724.351(c), below.

Non-replacement

units

are limited to those receiving waste

in accordance with “an approved closure plan or

ZPA or ltate

approved corrective action.”

For one thing,

it is not clear why

the corrective action must be approved specifically by USEPA or a

0138-0777

---

14

State, but not the closure plan.

The

Board suggests that this is

an editorial error, so that both must receive the same type of

approval.

The

main problem is whether the Illinois rule needs to

address the possibility of approval by other

states,

or by USEPA.

With respect to the approval by other states, the USEPA

definition appears to be limited to disposal of waste from units

at a single facility.

In other words, a unit receiving waste

from a f~ci1ityclosing in another state could not qualify as a

non-replacement unit.

The Board does not therefore have to allow

for approval by other states.

The next question is whether the Board should allow for

approval by USEPA.

Within Illinois, IISWA-driven USEPA amendments

become effective immediately upon federal adoption.

Sections 7

•

2

and 22.4(a) of

the

Act require the Board to adopt the federal

requirement, which then becomes a State requirement.

A dual

federal/State regulatory

scheme then exists

until USEPA

authorizes the Illinois rule, at which time the federal

requirement is no longer effective in Illinois.

(See 57 Fed.

Req.

3480, January 29,

1992)

There is therefore a possibility

that

a

portion of a closure or post—closure care plan would have

been primarily approved by USEPA.

It appears that the federal

intent of the limitation has been met so long as either USEPA or

the Agency has approved the closure or post—closure plan.

The

Board solicited comment as to whether approval by just the Agency

ought to control at the State level, but received no response.

The text of the definition is as follows:

“Replacement unit” means a landfill, surface

impoundment or waste pile unit from which all or

substantially all of the waste is removed, and which is

subsequently reused to treat, store or dispose of

hazardous waste.

“Replacement unit” does not include a

unit from which waste is removed during closure, if the

subsequent reuse solely involves the disposal of waste

from that unit and other closing units or corrective

action areas at the facility, in accordance with a

closure or corrective action plan approved by USEPA or

the

Agency.

USEPA has also amended the

definition

of

“sump”

..O

give it

~‘

special meaning in the context of the liner and leachate

collection rules.

The definition adopted by the Board is as

follows:

“Suap” means any pit or reservoir that meets the

definition of tank and those troughs or trenches

connected to

it that serve to

collect hazardous waste

for transport to hazardous waste storage, treatment or

0138-0779

---

15

disposal facilities: exceDt that. as used in the

landfill, surface imDoundment and waste ~i1e rules,

“sump” means any lined tit or reservoir

that

serves to

collect liquids drained from a leachate collection and

removal system or leak detection system for

subsequent

removal from the system.

PART

721:

DEFINITION OF

‘HAZARDOUS

WASTE’

This

part contains the definitions of “solid waste” and

hazardous waste”, together with the procedures for listing and

the listings themselves.

It is derived

from

40 CFR 261.

USEPA

has amended these rules in several isolated.ru.emakings,

which

will be identified with each Section.

Section 721.103

This Section is the definition of “hazardous waste”.

USEPA

amended it at 57 Fed. Reg. 7632, March 3,

1992, and corrected the

amendment at 57 Fed. Reg. 23063, June 1,

1992.

The amendments

concern the “mixture and derived-from”

rules.

Although USEPA has

reprinted the entire text of Section 261.3, the amendments appear

to be to only a small portion of the text.

In Section 721.103 (a) (2) (A), the

main

amendment

(in the

correction)

is that the reference to the EP toxicity test has

been changed to reference the toxicity characteristic, measured

by the TCLP test, which replaced the EP toxicity test for most

purposes.

The Board adopted the TCLP test in R90-1O.

Most of the language in Section 721.103(a)(2)(A) concerns

the “Bevill exclusion” for certain mining

wastes.

The

Board

adopted this language in R90-2.

The

Board noted and corrected

numerous minor editorial problems with the

USEPA rule.

These

have not been fixed, and account for most of the differences

between the Board and USEPA text.

The Board has not changed its

text.

USEPA has made several other minor changes in wording to

Section 721.103(a) (2) (B) et seq., which the

Board

has followed.

In section 261.3(a)(2)(jv)(E)

(721.103(a)(2)(D)(v)3 USEPA

has apparently added a comma to the second proviso, so it reads:

“provided the wastes, combined annualized average...”

This is

obviously wrong, and the Board has made no

change.4

40

CFR

261.3(c)(2)(ji)(C)

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

was added

in R91-13, based on the August 19, 1991 Federal Register.

The

addition was a correction concerning “high temperature metal

recovery wastes”, which the Board addressed with the underlying

41t is possible that USEPA intended this as a possessive:

“wastes”.

0138-0779

---

16

rule, sooner than in the normal batch

period.

Apparently the

subsection was inadvertently repealed with the March

3 Fed. Reg.,

and then restored with the June

1, 1992, correction.

This

USEPA

amendment has no effect on the

Board

rules.

When the Board adopted its version of 40 CPR

261.3(c)

(2) (ii)

(C)

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

it

noted

and

corrected

a

number

of

editorial

errors.

This

is

discussed

in

the

R91-13

Opinion,

at

p.

22

—

25.

USEPA has not corrected these

editorial errors in this correction.

The Board has

not been able

to

identify

any

substantive

changes in

the

USEPA correction with

respect to this subsection, and

has

made none.

The March 3,

1992, Fed. Req.

addressed

the “mixture and

derived-from” rules which are in 40 CPR 261

•

3(d).

One change

appears to have been the omission of the “however” clause from

section

261.3(d)

(1)

(721.103(d)

(1):

(However, wastes that exhibit a characteristic

at the

point of generation may

still

be subject to the

requirements of part 268,

even if they no longer

exhibit a characteristic at the point of land

disposal.)

However, this was added back in the

June

1 corrections.

The March 3 Fed. Reg. added

section 261.3(e)

(721.103(e):

(e)

Sunset provision.

Paragraphs

(a) (2) (iv) and

(C)

(2) (i) of this section shall remain

in effect only

until April 28,

1993.

40

CFR

261.3(a)(2)(iv)

(723..103(a)(2)(D)3 is a lengthy

elaboration on

the

mixture rule

with respect to various

types of

listed waste.

40

CFR

261.3(c)(2)(i)

(721.1O3(c)(2)(A).)

includes

solid wastes generated from the treatment of listed hazardous

waste.

As is discussed in the general

introduction to this

opinion, USEPA repealed the sunset provision at 57 Fed. Reg.

49278, October 30, 1992, which would normally be addressed in

R93-4.

However, based on this USEPA action, the Board will not

adopt the sunset provision in this Docket.

Section 721.104

This Section contains exclusions from the defi.~itionof

“hazardous waste”.

It was amended at 57 Fed. Reg. 21534, May 20,

1992 and at 57 Fed. Reg. 27888,

June

22, 1992 and at 57 Fed. Reg.

30658, July 10,

1992.

The last is a correction to the TCLP

rules, which the Board is addressing outside the normal batch

period.

Also,

the May 20 action was corrected at 57 Fed. Reg.

29220, July 1,

1992, which the Board is also addressing outside

the normal batch period.

0138-0780

---

17

40 CFR 261.4(a)

(721.104(a)

lists exclusions which are

neither hazardous waste nor “solid waste”.

USEPA amended 40 CTR

261.4(a) (10) at 57 Fed. Reg. 27888

June

22, 1992.

This modifies

the

exclusion

f

or

certain

recycled

coke/coal

tar

by—products.

The

amendment, as adopted by the Board, is as follows

(721.104 (a) (10)

)

When

used as a

fuel,

-eeke and seal tar

from

the

iron

and steel industry

that

eentain.

or

is

pr.dueed

from

deoanter tank tar sludge,

UEEFA

hamardeus

waste I~087.

The proeeaa —of

pzoduoinq

o.k.

end seal tar from

sush

deeanter

tank

tar sludge in a eske even

is

likeurise

and any wastes from the

coke

bv—mroducts

processes

which

are

hazardous

only

because

they

exhibit

the

toxicity characteristic specified in Section 721.124.

when. subsequent to generation.. these materials are

recycled to coke ovens. to the

tar

recovery process as

a feedstock to rroduce coal

tar

or are mixed with coal

tar prior to the tar’s sale or ref

inina.

This

exclusion is conditioned on there

being

no land

disDosal

of

the

wastes

from

the Doint they

are

generated to the point they are recycled to coke ovens

or

the

tar

refinina

Drocess.

40 CFR 261.4(b)

(721.104(b)

lists exclusions of “solid

wastes” which are hazardous wastes.

USEPA corrected 40 CFR

261.4(b)(6)(ii)

(721.104(b)(6)(B)

at

57

Fed.

Reg.

30658,

July

10,

1992,

to

replace

the

reference

to

the

EP

toxicity

characteristic with a reference to the toxicity characteristic

(measured by

TCLP).

The

Board

language

is as

follows

(721.104(b)

(6)

(B):

Specific wastes which meet the standard in subsections

(b)(6)(A)(i),

(ii).

and

(iii),

above,

(so

long

as

they

do not fail the test for the toxicity characteristic

for any other constituent of

EP

teuioity, and do not

4e44—4he—t.eet-4e~-~x~ijkjt,any

other characteristic)

are~

USEPA corrected 40

CFR

26l.4(b)(9)

(Section

721.104(b)

(9))

at 57 Fed. Reg. 30658, July 10,

1992, also in connection with the

TCLP corrections.

The Board language is:

Solid waste which consists of discarded arsenical-

treated

wood

or

wood

products

which

fails

the

test for

the toxicity characteristic solely for arGonie for

hazardous waste

codes

D004 throuah D017 and which is

not a hazardous waste for any other reason or roasona

if the waste is generated by persons who utilize the

arsenical-treated wood and wood products for these

materials’ intended end use.

0138-0781

---

18

USEPA added a new exclusion as

40

CFR 261.4(b) (15)

(721104(b) (15)

at 57 Fed. Reg. 21534,

Nay 20, 1992.

This was

corrected at

57 Fed. Req. 29220,

July 1, 1992.

This excludes

certain used oil filters which have been properly drained.

The

Board language is:

Non-terne plated used oil filters which are not mixed

with wastes listed in

Subøart

D. if these oil filters

have been aravitv

hot-drained

using

one of the

following

methods:

~j

p~’ncturina

the

filter anti-drain

back

valve

or

the

filter

dome

end and hot-draining

~

Hot-draining and crushina:

Dismantling

and

h~t—drainina; or.

~

Any

other eauivalent hot—draining

method

which

will remove used oil.

The

subsection

numbering

in

the

USEPA

and Board rule now

jumps from

(b)(3.2) to (15), with (13)

and

(14) missing.

The

Board

has

numbered

its

rule

in

parallel with

the

USEPA

numbering.

The

Board solicited comment as to whether something might be

missing, but received no response,

The

Code

Division noted the gap in

numbering.

(PC

2.)

The

Board cannot renumber

(b)

(15) to

(13), without reviewing the

enti~rerule set (Parts 702 through 728) for cross—references, and

setting

up a continuing program to keep track of

this anomaly in

perpetuity.

The Board has instead inserted “filler” sections

into

(b) (13)

and

(14).

Section 721.111

This Section is

drawn

from 40 CFR 261.11, which was amended

at 57 Fed. Req.

14, January 2,

1992.

These are the criteria used

by USEPA for listing hazardous waste.

Section 721.111 was

recently amended in R90—17, which revised the delisting rules to

better

accommodate

delegation

of

this

authority

by

USEPA.

The “bow to list a

waste”

rules

are different from most of

the rest of

the

USEPA

RCRA

ules

in

that,

rather

than

governing

hazardous

waste

operations,

they

gover

future

rulemaking

r’~t.~ns

to be taken by USEPA.

The Board did not initially adopt ~

equivalent rule, since a Board rule would seem to be a State rule

regulating USEPA, since USEPA was not going to delegate listing

authority, and since

the

Board would not be governed by the

regulatory language to

the

extent

it did exercise listing

authority.

The Board instead incorporated the USEPA rule by

reference.

Uowever, once- delisting authority .was delegated,

it

0138-0782

---

19

became apparent that the listing standards within 40

c~

261.11

were

critical

for

delisting.

In

R90-17,

the

Board

therefore

adopted most of the text of section 261.11,-but.worded it

as a

recitation of USEPA’s criteria for listing, rather than as a

rule

enforceable against USEPA.

There are, therefore, numerous

differences in wording between the Board

and

USEPA rules.

Apart

from

the

functional

differences

between

the

Board

and

USEPA

rules,

there

are

a

number

of editorial problems with the

USEPA rule,

which were discussed in

the

R90-17

Opinion.

In

particular, section 261.11(a) (3), the topic of the January

2,

1992,

amendment, includes a “hanging

paragraph”

in which the

text

returns to the original level of indentation after a list is

broken out.

The Code Division prohibits this format.

The

Board

therefore had to restructure this portion of the

rule

in R90-17.

The hanging paragraph became two Board

notes,

following

the

introduction to subsection

(a) (3)

and

subsection

(a) (3) (K).

USEPA made a minor, but important,

change

in wording to 40

CFR

261.11(a) (3) at 55 Fed. Reg. 18726, Kay

4,

1990.

The

Board

picked this up in R90-17. As discussed at 57 Fed. Reg.

13, USEPA

initially treated the change as a technical revision, which was

made without notice and opportunity for

comment.

However,

after

opposition arose, USEPA made a new proposal, which appeared at 55

Fed. Reg. 33238, July 19,

1991.

This resulted in the January 2,

1992, USEPA action, which is the subject of this Docket.

The

USEPA

amendment appears

to

require

only

a

minor

change

in wording to Section 72l.lll(a)(3)

(261.11(a)(3)):

Toxic waste.

It contains any of

the toxic constituents

listed in Appendix H and, after considering any of the

following factors, USEPA concludes that the waste is

capable of posing a substantial present or potential

hazard to human health or the environment when

improperly treated, stored, transported or disposed of,

or otherwise managed:...

Section 721.Appendix I, Table D (Not Amended)

This

Appendix is

a listing of delisting adjusted standards.

This currently lists only the Keystone delisting adopted in AS

91-1.

None have been adopted since.

-The Board has therefore

made no changes .to this Appendix, but will make changes at a

later date to list any additional adjusted standards.

PART

724:

STANDARDS FOR PERMI~DHWM FACILITIES

This

Part contains the standards for owners and operators of

hazardous waste management

(MW)!) facilities with

RCRA

permits.

Standards for interim status facilities are in Part 725,

below.

This Part is drawn from 40

CFR

264.

Most of the amendments come

-

0 138-0783

---

20

from the liner and leak detection system

(LDS) amendments at 57

Fed. Reg. 3486, January 29, 1992.

This includes the addition of

numerous Sections to this Part.

USEPA is reusing several section numbers which were used for

Sections which were repealed following the HSWA Act

(RB6-1 at the

State level).

Under the Administrative Code Division rules,

repealed Sections remain as a heading, with a “Repealed”

designation

(a “ghost”).

The

new Sections will therefore appear

at the State level as amendments replacing the “ghosts”.

Pursuant

to a request from the Administrative Code Division,

there are minor changes in the format for removing

the

“ghosts”

as between the proposed and final orders.

-

Section

724.113

General Waste Analysis

This Section is derived from 40 CFR 264.13, which was

amended at 57 Fed. Reg. 8088, March 6, 1992, in connection with

the “third third” corrections.

The “third third” land disposal

bans were the main topic of R90-11.

The last Board amendment to

this Section was in R90-11.

The

amendments are minor changes in

the

wording of 40

CFR

264.13(a)(1)

(724.113(a)(1)), which are

easier to set forth than describe.

The Board amendment is as

follows:

Before an owner or operator treats, stores

or

disposes

of any hazardous waste~.,or non-hazardous wastes if

applicable under Section 724.213(d), the owner or

operator shall obtain a detailed chemical and physical

analysis of a representative sample of the waste~. At

a minimum, this ~

analysis must contain all, the

information which must be

known

to treat, store or

dispose of the waste in accordance with 4~e

roquireaonts

of

this

Part

e*~

~

35 131. Adm. Code 728,-

or vith the senditiono

-f

-

mermit

ispued

under

3~Ill.

Adm.

Cede 703, 703 and 70g.

Section 724.115

General Inspection Requirements

This Section is derived from 40 CPR 264.15, which was

amended ~t 57 Fed. Reg.

3486, in connection with LDS rules.

This

Section deals with “inspections” which must be performed and

documented by the operator.

The amendments are mainly changes to

cross referenc.

•;

to reflect new rules discussed below.

The Board

amendment to Section 724

•

115(b) (4)

is:

The frequency of inspection may vary for the items on

the schedule.

However, it should be based on the rate

of poesible—deterjoratjon of the equipment and the

probability of an environmental or

human

health

incident if the deterioration, malfunction or any

operator error goes undetected between inspections.

0138-076k

---

21

Areas

subject to spills, such as loading and unloading

areas, must be inspected daily when in use.

At a

minimum, the inspection schedule must include the

terms

and frequencies called for in Sections 724.274,

324.394,

724.293

724.295.

724.326,

334.353,

724.354,

724.378. 724.403, 724.447,

724.702, 724.933, 724.952,

724.953 and 724.958, where applicable.

Section 724.119

Construction Quality Assurance

Program

This new Section is derived from 40 CFR 264.19, adopted at

57 Fed. Reg. 3486, in connection

with LDS rules.

This

requires

a

“Construction Quality Assurance Program”

.

(CQA

Program)

for

certain

surface

impoundments,

waste

piles

and

landfill

units.

Among

other

things,

the

CQA program has to

address

the

construction

of

soil liners, geomeabrane liners, leachate

collection and removal systems, and leak detection systems.

The

operator has to have a CQA plan and a

CQA

officer,

and has to

certify,

before

receiving

waste,

that

the CQA plan was

successfully carried out.

40

CFR

264.19(c) (2) requires

test

fills or other

measurements of hydraulic conductivity of recompacted liners.

The USEPA rule reads as follows:

The CQA program shall include test fills for compacted

soil liners, using the same compaction methods as in

the full scale unit, to ensure that the liners are

constructed to meet the hydraulic conductivity

requirements of S~264.221(c) (1) (i) (B),

264.251(c)

(1) (i) (B),

and

264

e301(c)

(1) (i)

(B)

in the

field. Compliance with the hydraulic conductivity

requirements must be verified by using in-situ testing

on the constructed test fill. The *.qional

Administrator

may

accept

an alternative demonstration,

in lieu of a test fill, where data are sufficient to

show that a constructed soil liner will meet the

hydraulic conductivity requirements of §~

264.221(c) (1) (i) (B), 264.251(c) (1) (i) (B), and-

264.301(c) (l)(i)

(B)

in

the field.

There

are

several

minor

problems

with

this

language.

The

first problem concerns the agency with authority to make this

decision at the State level.

A general discussion of how

the

Board decides this appears in the introduction to this Opinion.

The Board sees no indication that USEPA intends to retain this

authority.

The

choice

is

therefore

as

between

the

Board and

Agency.

This decision,

in Part 264 (724), concerns an operator

who either has a permit or is required to get one.

The general

rule requires a test fill, or an alternative demonstration “where

data are sufficient to show that a constructed soil liner will

meet the hydraulic conductivity requirements”.

Rather than a

0138-0785

---

22

“waiver” of

the

test fill requirement,

this is an alternative way

of showing the same thing.

This is a ~technicalshowing of a type

typically made by the Agency on a

permit

application.

The

tJSEPA rule provides that the Regional Administrator “may

accept” the alternative.

As

“may”

is defined in the general

introduction

above,

this

could

be construed

as

meaning

that

the

decision maker “may or

may

not”

accept the alternative,

regardless of whether

the

data was “sufficient” under the

standard.

The Board has therefore worded t.his as “the Agency

shall accept.

.

.where data are sufficient”.

The

Board solicited

comment as to whether there might be other

grounds

on which

the

-

Agency should be able to reject

the

alternative, but received no

response.

The ~SEPA rule also is

wQrded

so

as to require that the data

be

sufficient to show compliance with the impoundment, pile and

landfill rules.

The alternative data need to be sufficient only

to meet

the

requirements

for

the type of unit

in

question.

The text of Section 724.l19(c)(2)

264.19(c)(2),

as adopted

by the Board, is as follows:

The CQA program must include test fills for compacted

soil liners, using the same compaction methods as in

the full scale

unit,

to

ensure

that

the

liners

are

constructed to meet the hydraulic conductivity

requirements of Sections 724.321(c) (1) (A) (ii),

724.351(c) (1) (A) (ii)

or 724.401(c) (1) (A) (ii)

in the

field.

Compliance with the hydraulic conductivity

requirements must be verified by using in-situ testing

on the constructed test fill.

The

Agency

shall accept

an alternative demonstration, in lieu of a test fill,

where

data

are

sufficient

to

show

that

a

constructed

soil liner will meet the hydraulic conductivity

requirements of Sections 724.321(c) (1) (A) (ii),

724.351(c) (1) (A) (ii) or 724.401(c) (1) (A) (ii)

in

the

field.

40

CFR

264.19(d)

(724.119(d)) prohibits acceptance of waste

until

the

CQA

officer

certified

that

the CQA program has been

carried out and that the unit meets the requirements of this

Part,

and:

The pro -~durein ~ *70.30(1)’2)(ji) of this chapter has

been completec, ~

40

CFR

270.30(1)

(2) corresponds with Section 703.247;

270.30(1) (2) (ii)

is 703.247(b).

This prohibits receipt of waste

5The reference is to “1”, as in “eli”.

0138-0786

---

23

following notification to the State, until either the State

has

inspected the unit, or 15 days have lapsed without State action.

Section 724.173

Operating Record

This Section is drawn from 40

CFR

264.73,

which

was

also

amended in connection with LDS rules.

The amendments add cross

references to the new requirements.

40

CFR

264.73(b) (6) the operator to record the following:

Monitoring, testing or analytical

data,

and corrective

action where requ.ired by subpart F and SS 264.19,

264.191, 264.193,

264.195,

264.222, 264.223, 264.226,

264.252—264.254, 264.276, 264.278, 264.280, 264.302—

264.304,

264.309,

264.347,

264.602, 264.1034(c)—

264.1034(f),

264.1035,

264.1063(d)—264.1063(i),

and

264.1064.

As worded,

the

USEPA rule appears to require the .data to be

recorded only if required by all the listed Sections, some of

which are mutually exclusive.

The Board believes this is an

editorial error by USEPA, and has retained “or” in its equivalent

rule (724.173(b) (6)).

The Board also believes that the reference to “corrective

action” has an understood “data” after it.

The

Board has

inserted this word.

The text of Section 724.173(b) (6)

is as

follows:

Monitoring, testing or analytical data and corrective

action data where required by Subpart F or Sections

724.119.

724.291.

724.293

724.295k

724.322.

724.323.

724.326, 324.353, 724.353 throuah 724.354, 724.376,

724.378,

724.380,

724.403,

724.402

throuch

724.404.

724.409,

724.447, 724.702, 724.934(c) through (f),

724.935,

724.963(d) through

(i) or 724.964.

SUBPART

K:

SURFACE

IMPOUNDMENTS

This Subpart contains design and operating requirements for

surface impoundments.

The amendments specify the design and

°!38

0787

---

24

operating requirements for leak detection6 at new7 surface

impoundments.

Section 724.321

Design

and

operating requirements (surface

impoundments)

This Section is

drawn

from 40 CPR

264.221.

Section 724.321(b) allows for approval of alternate design

or operating practices.

As adopted by the

Bourd

(in R82-19),

this allowed alternative practices only pursuant to a variance or

site-specific rulemaking.

Since that time,

Section 28.1 has

been

added

to

the Act, authorizing

this

type

of decision by “adjusted

standard”.

The Board

has

modified

this

Section

to

allow

the

use

of adjusted standards for this approval.

Section 28.~b)allows the Board to specify the “level of

justification” at the time it adopts the rule authorizing an

adjusted standard procedure.

The USEPA

rule,

and

existing

Board

rule, contain language appropriate

as

the

level of justification.

The

language

appears below.

The Board has reworded the Section

to make it clear what

the

level of justification is.

At one time the Board adopted procedures which were specific

to

RCRA

adjusted

standards.

These

remain

in

the

rule

book

as

35

Ill.

Ada.

Code

106.Subpart

D,

for.use

with

the

rules

that

specifically

reference

them.:

The

Board

has since adopted general

adjusted standards

procedures

in 35 Ui.

Ada. Code

106.Subpart G.

The Board has referenced these, rather than the RCRA-specific

procedures.

These procedures are discussed in detail above,

in

connection with Section 703.203.

The USEPA rule includes at least six procedures involving

“alternative design (and)

(or

operating practices”.

While this

one uses “and”, USEPA has apparently changed subsection

(d) below

to read “or”.

Of

the

other four,

some say “and”, others “or” and

others both.

The

Board

suggests that “or” is more correct, and

has revised all these procedures to be consistent.

~The

USEPA rules affect liners, leachate collection and

removal systems and leak detection systems

(“LDSs”).

For the

sake of brevity, in the rest of

this

opinion, we will refer to

ther ~ as “leak detection” or

“ws”,

except where the discussion

focusses on differen es among these.

7me applicability of the requirements is stated in the

subsection quoted below in connection with Section 724.321(c),

which is repeated for each type of unit.

For

the

sake of

brevity,

in this opinion, we will refer to these as “new” units,

except where the discussion focusses on the different types.

0138-0788

---

25

The text of the Board’s rule

(724.321(b)) is as follows:

b)

The owner or operator will be exempted from the

requirements of subsection

(a) above if the Board

finds

based en a d.aen.tratien by

the

imer

Sr

epera~er,in a varianee aria/er

sits

spesu3.o

rulemaking, arants

an

adi

usted

standard

oursuant

to

35

Iii.

Ada.

Code

106.Subnart

G.

The

level

of

justification

is

a

demonstration

by

the

owner

or

gperator that alternate design eM ~

operating

practices, together with location characteristics,

will prevent the migration of any -hazardous

constituents

(see Section 724.193) into the

groundwater

or

surface

water

at

any

future

time.

In deciding whether to grant an ...eept4ee adiusted

standard, the Board will consider:

1)

The nature and quantity of the wastes;

2)

The proposed alternate design and operation;

3)

The hydrogeologic setting of the facility,

including the attenuative capacity and thickness

of the liners and soils present between the

impoundment and groundwater or surface water;

and

4)

All other factors which would influence the

quality

and

mobility

of

the

leachate

produced

and

the potential for it to migrate to groundwater or

surface

water.

The applicability of the new leak detection requirements is

governed by 40

CFR

264.221(c)

(724.321(c),

which reads as

follows:

The owner or operator of each new surface impoundment

unit on which construction commences after January

29,

1992, each lateral expansion of a surface impoundment

unit on which construction commences after July 29,

1992 and each replacement of an existing surface

impoundment

unit

that

is to commence reuse after July

29,

1992 must install two or more liners and a leachate

collection and removal system between such liners.

“Construction commences” is as defined in

S 260.10 of

this

chapter

under

“existing

facility”.

These dates have already passed.

This

raises a question as

to whether the Board ought to adopt the rule with a later State

effective date.

This depends in part on whether these are HSWA-

driven amendments, which are already effective as federal law in

Illinois.

The new leak detection (and other) requirements do

appear to be NSWA—driven rules

(57 Fed. Reg. 3462).

Since

0138-0789

---

26

Illinois facilities are already subject to these requirements,

there appears to be no problem with adopting the State rule with

a retroactive date.

40

CER

264.221(c) (l)(i)

(B) and (c)(2)(ii)

(724.321(c) (1) (A) (ii) and (c)(2)(B)) include three numerical

standards,

as

follows:

(A composite bottom liner ...)

The lower component

must be constructed of at

least

3 feet

(91 cm) of

compacted soil material with a hydraulic conductivity

of no

more

than 1X1O/7/c*/sec.

(LDS

.

.

.3

Constructed of granular drainage materials

with a hydraulic conductivity of 1X10/1/aa/sec or more

and a thickness of 12 inches (30.5 cm) or more; or

constructed of synthetic or geonet drainage materials

with a transaissivity of 3X10/’/m2sec or more;

There

are

several

editorial

problems

with

the

numerical

standards.

First, each exponent is surrounded by a “I

/“,

both

in the Fed. Reg. and in the USEPA electronic version.

The Board

assumes this is an artifacte of a change in word processing

systems at some point in the development of the rule,

and has

removed the characters.

The first two standards: are for hydraulic conductivity,

which is normally measured in units of cm/sec.

The third

standard, however, is for synthetic or geonet draina~ematerials

with a .transmissivity apparently expressed

as

“m2sec”~’.

Appropriate units for transmissivity would be “m2/sec”.

USEPPI has also amended 40 CFR 264.221(d)

(724.321(d)), which

allows for an alternative liner demonstration.

When the

Board

originally adopted this provision, it determined that this was an

appropriate decision for the Agency to make in the context of

RCRA permit

issuance.

The Board revised the wording of the USEPA

rule to make it clear that this was to be an Agency action

An alternative possibility is that, while

the

“,/“

in

advance of

the

exponent is an artifact, the

“/“

following the

exponent is a part of the

units,

i.e.

“1

x

iO~~

/cm/eec”.

This

would be equivalent to “1 x l0~sec/cm”, which would be the

reciprocal of the hydraulic conductivity units indicated in the

first tw~standards.

This would clearly be wrong for the first

two standards.

9The USEPA rule could be read as

“/in2sec”.

This would,

however, be inconsistent with the reading of the “I

I”

typographical error above, and would be incorrect units for

transmissivity.

0138-0790

---

27

pursuant to a permit application.

Iost of the differences

between the USEPA and Board rule result from this.

The current

USEPA amendments modify the standard to allow an alternative

demonstration with respect to leak detection.

As discussed above in connection with Section 724.321(b),

there is a question as to whether this subsection ought to read

“alternative design and” or “alternative design or operating

practices”.

The Board has followed the USEPA amendment and used

“or”.

The amendment to Section 724.321(d)

is as follows:

Subsection

(c) will not apply if the owner or operator

demonstrates to the Agency and the Agency finds

f

or

such surface impoundment, that alternative design end

~_operating practices, together with location

characteristics,

ijill

j..

jJ

Will prevent

the

migration

of

any

hazardous

constituent into the groundwater or surface

water at least as effectively

as

•uoh ~

liners and leachate collection and removal

systeae~-s~ecifiedin subsection (c~above

Afl~

~

Will allow detection of leaks of hazardous

constituents through the

toD

liner

at

least

as effectively.

USEPA

has

also

added

40

CTh

264.221(f)

(724.321(f)),

pushing

the existing subsection

(f),

et

seq.,

down

one

•

The new language

is as follows:

(f) The owner or operator of any replacement surface

impoundment unit is exempt from paragraph

(C)

of this

section

if:

(1) The existing unit was constructed in compliance

with the design standards of sections 3004

(0)

(1)

(A) (i)

and

(o)

(5)

of

the

Resource

Conservation

and

Recovery

Act; and

(2) There is no reason to believe that the liner is not

functioning as designed.

The direct reference to the

RCRA

Act poses an editorial

problem in that it might be necessary to handle this as an

incorporation by reference at the State level.

As was discussed

in R90-2, at p.

17 and 27, the APA is unclear as to whether this

type of reference is an incorporation by reference,

and as to

whether it is allowable.

Regardless, this type of reference is

OJ38~o791

---

28

functioning

as

an

incorporation

by

reference

of

design

standards

in the federal law, and should be avoided, to maintain clarity.

The

cited provisions are

HSWA

Act provisions which set

design standards for surface impoundments

that

were

effective

until USEPA promulgated new design requirements.

They read as

follows:

• .

At a minimum, such regulations shall require

(1)

(A)

For each new landfill or surface

impoundment,

for which an application for a final

determination regarding issuance of a

permit

under section 3005(c) is received after the

date of enactment of (HSWA3

(i)

the installation of two or more liners

and

a

leachate

collection

system

above

(in the case of a landfill) and between

such liners;

...

(3004

(0)

(1)

(A) (1).)

(5)

(A)

The Administrator shall promulgate

regulations or issue guidance,.documents

implementing

...

(1)

(A)

within

two

years

after (HSWA).

(B)

Until the effective date of such regulations

or

guidance

documents,

the

requirement

for

the installation of two or

more

liners

may

be

satisfied by

the

installation

of

a top liner

designed, operated, and constructed of

materials to prevent the migration of any

constituent into such liner during the

period

such facility remains in operation (including

any

post—closure

monitoring

period),

and

a

lower liner designed, operated, and

constructed to prevent the migration of any

constituent through such liner during such

period.

For

the

purpose of the preceding

sentence,

a

lower

liner

shall be deemed to

satisfy such requirement if it is constructed

of at least a

3-foot

thick

layer of

recompacted clay or other natural material

with a permeability of no more than

3. x 10~

(cm/eec).

(3004(0) (5)

.3

These requirements appear to represent Section 724.321(c)

through

(e), as they existed prior to the amendments in this

Docket.

That

Section

assumed its post-HSWA form in R861,

at 10

Ill. Reg.

14119, effective August 12, 1986.

The Board has

referenced that version of its rule, and added an explanatory

note.

The language is as follows (724.321(f)):

0138-0792

---

29

f)

The owner or operator of any replacement surface

impoundment unit is exempt from subsection

(C)

above

if:

1)

The existing unit was constructed in

compliance with the design standards of 35

Ill. Adm. Code 724.321(c),

Cd) and (e), as

amended in R86—1, at 10 Ill. Reg.

3.4119,

effective August 12,

3.986; and

BOARD

NOTE:

The cited subsections

implemented

the design standards of

sections 3004(o)(1)(A)(i) and (o)(5) of

the Resource Conservation and Recovery

Act

(42 U.S.C. 6901 et seq.).

2)

There is no reason to believe that the liner

is not functioning as designed.

Section 724.322

Action Leakage Rate

This Section is derived from 40 CFR 264.222, which USEPA

adopted with the new leak detection rules.

The

new USEPA section

replaces a “ghost” at the State level.

This Section governs the

“action leakage rate” for a “new”10 surface impoundment.

The

action leakage rate is the maximum design flow rate that the leak

detection system

(LDS) can remove without the fluid head on the

bottom liner exceeding 1 foot.

To determine if the action

leakage rate has been exceeded, the owner or operator

converts

the

weekly or monthly flow rate from the monitoring data to an

average daily

flow

rate

(gallons

per

acre

per

day)

for each sump.

Response action under the following Sections results if the

action leakage rate is exceeded.

The USEPA rule includes two decisions which are to be made

by

the

Regional Administrator.

A general discussion appears

above as to how the Board determines who will

make

these

decisions in the State program.

The Board believes that both

decisions are to be delegated.

The first decision (in 724.322(a)

is the approval of the

action leakage rate.

40

CFR

270.17(b)(5)

(703.203(b)(5))

requires the operator to file a proposed action leakage rate,

with rationale, with the

permit

application.

The approval of the

action leakage rate would thus come in the context of a permit

application.

This would be an engineering-type demonstration of

a type typically made by the Agency pursuant to a

permit

application, the question being whether the leakage rate would

10As noted above, the Board is using “new” as a shorthand

for the types of units subject to these requirements.

0138-0793

---

30

cause more than a one foot head on the liner, considering slope,

permeabilities, etc.

The second decision is in 40

CFR

264.222(b), which reads as

follows:

Unless the negional Administrator approves a

different

calculation,

the average daily flow rate for

each

sump

must be calculated weekly during the active life and

clo;ure period, and if the unit is closed in accordance

with ~ 264.228 (b), monthly during the post—closure care

period when monthly monitoring is

required

under ~

264.226(d).

Although this is worded in terms of a “different

calculation”, it does not appear to allow

a

different

formula

to

be used.

Rather, the rule is referring to the frequency with

which

the

leakage

rate

must be recalculated and, by implication,

the period over which the daily leakage is averaged.

It is

closely linked with section 264.226(d)

(724.326(d)), which

specifies monitoring frequency.

This subsection authorizes an alternative frequency, but

specifies no criteria for decision.

However, the criteria appear

to

be

in

40

CFR

264.226(d)(2)

(724.326(d)(2fl:

After the final cover is installed, the amount of

liquids removed from each leak detection system sump

must be recorded at least monthly. If the liquid level

in the sump stays below the pump operating level for

two

consecutive

months,

the

amount

of

liquids

in

the

sumps

must

be

recorded

at

least

quarterly.

If

the

liquid

level

in

the

sump

stays

below

the

pump

operating

level for two consecutive quarters, the amount of

liquids in the sumps must be recorded at least semi-

annually

Although there is

a

specific

variable

frequency

rule

applicable following closure, section 264.226(d) (1)

(724.326(d) (1)) is quite specific that weekly monitoring is

required up to the point of closure.

It thus appears that the

alternative frequency decision applies only after closure.

The Board has adopted the following 1anguag~(7~ 322 (b):

To determine if the action leakage rate

~asbeen

exceeded,

the

owner

or

operator

shall

convert

the

weekly or monthly flow rate from the monitoring data

obtained under Section 724.326(d) to an average daily

flow rate

(gallons

per

acre per day)

for each sump.

The average daily flow rate for each sump must be

calculated weekly during the active life and closure

0138-079k

---

31

period and, if the unit

is

closed

in accordance with

Section 724.328(b), monthly during the post—closure

care period, unless the Agency approves a different

frequency

pursuant to Section 724

•

326(d).

Section 724.323

Response Actions

This new Section is derived from 40 CFR 264.223, which USEPA

adopted with the leak detection rules.

It requires the operator

of a “new” impoundment to have an approved “response action

plan”.

If the action leakage rate is

exceeded,

the

operator

must

implement the response action plan.

This entails notification,

an assessment of the leak, a response

and

monthly

reports.

The operator is required to file a “response action plan”

with the Part B permit application under 40

CFR

270.17(b) (5)

(703

•

203(b) (5).

The plan is reviewed and approved by

the

Agency

pursuant to normal permit review procedures.

This Section has some minor editorial problems.

40

CFR

264.223(b)(6)

(724.323(b)(6)

includes a reference to the

“analyses” in subsections

(b) (3),

‘(4)

and

(5).

Those rules

are

all worded as directives to the operator to “determine”, for

example, the location of a leak.

USEPA refers to these rules as

“determinations” at other points.

The Board ~as therefore

replaced “analyses” with “determinations”.

40

CFR

264.223(c)

(724.323(c)

has a subsection

(1) with no

text.

This is prohibited by

the

Code Division.

The

Board

has

inserted

the

word

“either”

at

this

level,

since

the

subsection

appears to have the form

((A, B and C) or D).

In addition, this

subsection has an “and/or”, an expression to which the Code

Division sometimes objects.

As used by the Code Division,

“A

or

B” means “A or B or both”,

the

same

thing as “and/or”.

The text of Section 724.323(c)

adopted by the Board is as

follows:

c)

To make the leak or remediation determinations in

subsections

(b) (3),

(4)

and

(5) above, the

owner

or operator shall:

1)

Either:

A)

Assess the source of liquids and amounts

of liquids by source;

B)

Conduct a fingerprint, hazardous

constituent or other analyses of the

liquids in the

LDS

to identify the

source of liquids and possible location

0138-0795

---

32

of any leaks, and the hazard and

mobility of the liquid; and

C)

Assess the seriousness of any leaks in

terms of potential for escaping into the

environment; or

2)

Document why such assessments are not needed.

Section 724.326

Monitoring and Inspection

This Section is derived from 40 CPR 264.226, which USEPA

amended with the leak detection rules.

The amendment adds a new

subsection

(d).

This governs monitoring and inspection of liquid

levels in Bumps.

This deals with “inspection” which must be

performed and documented by the operator.

It is closely related

to Section 724.322, discussed above.

Subsection

(d) also is an

empty level.

The Board has inserted “Monitoring of

LDS”

as a

grouping heading.

This rule depends in part on the “pump operating level”.

The monitoring frequency is reduced to less than monthly if

liquids remain below

the

pump operating level for long periods of

time.

40

CFR

264.226(d) (3) provides that:

“Pump operating, level” is a liquid level proposed by

the owner or operator and approved by the Regional

Administrator based on pump activation level, sump

dimensions, and level that avoids

backup

into the

drainage layer and minimizes head in the

Bump.

The pump operating level is

potentially

a

very

important

determination, since monitoring frequencies depend in part on how

often liquids reach the pump operating level.. A high pump

operating level could lead to very infrequent monitoring.

This is a technical decision which is closely related to the

action leakage rate and response plan.

As is discussed above, 40

CFR 270

•

17(b) (5) requires a proposed action leakage rate and

response plan in the permit application, but omits the pump

operating level.

The Board has above included it in Section

703

•

203 (b) (5).

With the decision placed into the normal context

of a

permit

application, there is no need to create a special

procedure.

The text of Section 74.4.326(d) adopted by the Board is as

follows:

d)

Monitoring of

LDS.

1)

An

owner

or operator required to have a

LDS

under Section 724.321(c)

or

(d)

shall record

0138-0796

---

33

the

amount

of

liquids

removed from each

LDS

sump at least once each week during the

active life and closure period.

2)

After the final cover is installed, the

amount

of liquids removed from each

LDS

sump

must be recorded at least monthly.

If the

liquid level in the sump stays below the pump

operating level for two consecutive months,

the

amount

of liquids in

the

sumps must be

recorded at least quarterly.

If the liquid

level in the sump stays below the pump

operating level for two consecutive quarters,

the amount of liquids in the sumps must be

recorded at least semi—annually.

If at any

time during the post—closure care

period

the

pump operating level is exceeded at units on

quarterly or semi-annual recording schedules,

the owner or operator shall return to monthly

recording of amounts of liquids removed from

each sump until the liquid level again stays

below the pump operating level for two

consecutive months.

3)

“Pump

operating level” is a liquid level

proposed by the owner or operator pursuant to

35 Ill. Adm. Code 703.203(b) (5,) and approved

by the Agency based on pump activation level,

swap dimensions and level that avoids backup

into the drainage layer and minimizes head in

the Bump.

Section 724.328

Closure and Post—closure Care

This Section is

drawn

from

40

CFR

264.228.

The amendment

adds

section

264.228(b)(2)

(724.328(b)(2)),

which

requires

the

operator

to

maintain

and

monitor

the

LDS

during and after

closure.

SUBPART

L:

WASTE PILES

This

Subpart specifies design and operating requirements for

waste piles.

A waste pile is a type of storage unit.

A pile in

which waste is permanently placed would be a type of landfill.

These provisions were also amended with the LDS rules, at 57 Fed.

Reg.

3486, January 29,

1992.

These amendments largely repeat the

amendments to the surface impoundment rules, discussed above.

However, piles differ from surface impoundments in one major

respect:

while liquid is expected to be present on top of the

first liner in an impoundment, such liquid must be removed from

the top liner under a pile.

Moreover, USEPA has never adopted

rules implementing HSWA requirements with respect to piles.

0138-0797

---

34

Section 724.351

Design

and Operating Requirements for Waste

‘Piles

This Section is drawn from 40 CFR 264.251.

Section 724.351(a) contains the general liner requirement

for a waste pile:

a single liner which will prevent migration

through the liner during the active life of the pile.

The pile

must also have leachate collection and removal above the

liner.

Section 724.351(b) allows for approval of alternate desigr~

or operating practices.

As adopted by the Board

(in R82—l9),

this allowed alternative practices only pursuant to a variance or

site—specific rulemaking.

For the reasons discussed above in

connection with Section 744.321(b), the Board is replacing these

determinations with an adjusted standards procedure.

The text of the Board rule (724.351(b))

is as follows:

b)

The owner or operator will be exempted from the

requirements

of pe~ep~

subsection

(a)

above

if

the

Board

finds,

biiood

an

a dnnan.tration

by

the

e~mer

er

eperater,

in

a

varianee

a$/er

o•i••ie~•..•u•l

.rl.•..•..,i•

ki.•.’~~•••~••~,

~

.~

r~

i~’~’-

standard pursuant to 35 Ill. Adm. Code

106.SubDart

G.

The level of justification is a demonstration

by

the

owner

or

operator

that

alternate

design

eed

~

operating practices, together with location

characteristics, will prevent

the

migration of any

hazardous

constituents

(see

Section

724.193)

into

the groundwater or surface water at any future

time. In deciding whether to grant an

*eapt4ee

adiusted standard,

the

Board will consider:

1)

The nature and quantity of the wastes;

2)

The proposed alternate design and operation;

3)

The hydrogeologic setting of the facility,

including attenuative capacity and thickness of

the

liners

and

soils

present

between the pile and

groundwater or surface water; and

4)

All other fa. :ors which would influence the

quality and mobility of die leachate produc ~ and

the potential for it to migrate to groundwater or

surface water.

The USEPA amendments consist of the addition of 40 CFR

264.251(c)

—

(f)

(724.351(c)

—

(f)), and renumbering of existing

subsections.

The amendments are very similar to Section

724.321(c) et seq., discussed above.

The leak detection

0138-0798

---

35

requirements apply to new piles.11

The requirements are keyed to

January 29 and July 29,

1992, dates, which have already passed.

However, there appears to be no retroactivity problem with the

Board keying the State rules to these same dates, since operators

are already subject to these HSWA—driven requirements as federal

law.

As was discussed

above,

there were a

number

of editorial

problems with the numerical standards

in

the

surface

impoundment

rule.

The

comparable provisions differ for waste piles, in part

because of the fundamental difference between a pile and surface

impoundment:

while liquid is expected to exist

above

the top

liner in the impoundment, liquid

must

be removed from

under

the

pile.

The numerical standards for pile liners in 40 CFR

264.251(c)

(724.351(c)

are as follow:

The lower (liner

component must be constructed of

at least 3 feet

(91 cm) of compacted soil material with

a hydraulic conductivity of no more than 1X1O7 cm/sec.

(264.251(c) (1) (B))

The leachate collection and removal system

immediately above the top liner must be designed,

constructed,

operated,

and maintained to collect and

remove leachate from the waste pile during the active

life and post—closure care period. The Regional

Administrator will specify design and operating

conditions in the permit to

ensure

that the leachate

depth over the liner does not exceed 30 cm (one foot).

(264.251(c) (2)

The leachate collection and removal system between the

liners, and immediately above the bottom composite

liner in the case of multiple leachate collection and

removal systems,

is also a leak detection system.

(264.251(c) (3)

(The lower

LDS

must be

Constructed of granular

drainage materials with a hydraulic conductivity of

1X102 cm/sec or more and a thickness of 12 inches

(30.5 cm) or more; or constructed of synthetic or

geonet drainage materials with a transmissivity of

3X10’5 m2/sec or more:

(264.251(c)(3)(ii)

There appear to be no errors in the numerical standards of

the type discussed above for surface impoundments.

The

3 X 10~

11The applicability statement is actually quite complex, and

appears to be identical to that for surface impoundments, above.

As noted above, the Board is using the term “new” as a shorthand

description of these units.

ni

---

36

a2/sec transmissivity standard for the synthetic drainage

materials is equal to 0.3 cm2/sec, corresponding with the

transmissivity of 30.5 cm gravel layer with a conductivity of 1 X

10.2 cm/sec.

40 CFR 264.251(d)

(724.351(d)) provides for alternative

design or operating practices:

(d) The Regional Administrator

may approve

alternative

design or operating practices to those specified in

paragraph

(c) of this section if the owner or operator

demonstrates to the Regional Administrator that such

design and operating practices, together with location

characteristics:

(1)

Will

prevent

the migration of any hazardous

constituent into the ground water or surface water at

least as effectively as

the

liners

and

leachate

collection and removal systems specified in paragraph

(c) of this section; and

(2)

Will allow detection of leaks of hazardous

constituents through the top liner at least as

effectively.

This is quite similar to Section

724.321(d),

discussed

above.12

This is a technical showing which, rather than

exempting the operator from requirements, allows alternative

methods of accomplishing the same thing.

The Agency can make

this type of determination pursuant to a permit application.

The

Board has worded the introductory paragraph

(724

.

351(d))

as

follows:

The Agency shall approve alternative design or

operating practices to those specified in subsection

(C)

above if

the

owner or operator demonstrates to the

Agency, by way of

permit

or permit modification

application,

‘that

such design and operating practices,

together with location characteristics:...

40

CPR

264.251(f)

includes an exemption based on design

standards in the R~RAAct:

(f) The o~4!eror oper-ttor of any replacement waste pile

unit

is

exempt

from

paragraph

(c) of thit section if:

120ne difference is that, while the alternative showing for

a surface

impoundment

already exists, the language for piles

is

completely

new.

0138-0800

---

37

(1) The existing unit was constructed in compliance

with

the

design

standards

of

section

3004(o)(1)(A)(i)

and

(0)

(5)

of the Resource Conservation and Recovery

Act; and

(2) There is no reason to believe that the liner

is

not

functioning

as

designed.

This is comparable to Section 724.321(f), discussed

above.

There the Board determined that

the

cited Sections of

RCRA

(as

amended by HSWA) had been implemented in the subsections of

the

regulations which were amended.

The

Board

cited to the Illinois

Register publication of the repealed rules,

and

added an

explanatory note.

Here, however, the HSWA language was never

added to the regulations,

since there has been no post—HSWA

amendment to this Section.13

14

The Board has therefore added a

paraphrase of the RCRA/HSWA provisions in a Board Note

(724.351(f)

(1)

The

existing

unit

was

constructed

in

compliance

with

the design standards of section 3004(o) (1) (A) (i) and

(0)

(5)

of the Resource Conservation and Recovery Act

(42 Usc 6901 et seq.); and

BOARD

NOTE:

The cited provisions required the

installation of two or more liners

and

a leachate

collection system above

(in the case of a

landfill) and between such liners, including a top

liner designed, operated and constructed of

materials to prevent the migration of any

constituent into such liner during the period the

facility remained in operation (including any

post-closure monitoring period),

and

a

lower liner

to prevent the migration of any constituent

through

the

liner

during

such period.

The lower

liner was deemed to satisfy the requirement if it

was constructed of at least a 3—foot thick layer

of

recompacted

clay

or

other

natural

material

with

a permeability of no more than 1 x 1O’~cm/sec.

~The

CFR

carries a source note referencing 50 Fed. Reg.

4514, January 31,

1985.

This

was addressed in R85—22.

The cited

Fed. Reg. merely announced

0MB

approval

of

the July 26,

1982,

USEPA

amendments

to

this

Section.

141n

view

of

the

absence

of any post—HSWA amendments, one

might

question

whether

the

amendments

to

the

pile rules are HSWA-

driven.

However,

USEPA

has

unambiguously

stated

that

it

regards

the

new

pile

rules

as

HSWA-driven.

(57 Fed. Reg. 3480,

column

3.)

0138-0801

---

38

Section 724.352

Action Leakage

Rate

This Section is drawn from 40 CFR 264.252, which was adopted

with the leak detection rules.

The new Board Section replaces a

“ghost” section.

This Section governs the action leakage rate.

It is

comparable to Section 724.322, above.

The operator has to

propose an action leakage rate in the

permit

application pursuant

to

40

CFR

270.18(c)(1)(v)

(703.204(c)(1)(Efl.

40 CFR

264.252(b)

(724.352(b))

reads

as follows:

To

determine

if

the

action

leakage

rate

has

been

exceeded,

the

‘owner

or

operator

must

convert

the

weekly

flow rate from

the

monitoring

data

obtained

under

§

264.254(c), to an average daily flow rate (gallons per

acre per day)

for each Bump.

Unless

the

Regional

Administrator approves a different calculation,

the

average daily flow rate for each swap must be

calculated weekly during the active life

and

closure

period.

As discussed above in connection with Section 724

•

322 (b),

the Board construes this as referring to a different frequency of

calculation, rather than method of calculation.

However, with

this understanding, there are differences between this and the

comparable Section applicable to surface impoundments.

Differences appear to stem from the absence of post—closure care

rules for waste piles.15

While the other Section includes cross

references to post-closure care rules and a monitoring rule with

criteria for when the calculation frequency is to be reduced, the

Section on piles includes no such cross references.

Indeed, no

criteria are present in the pile rules for reducing

the

frequency.’6

The Board therefore suggests that the “unless”

clause is an editorial error, and has to omitted it.

The

language adopted by the Board (724.352(b)

is as follows:

To determine if the action

leakage

rate has been

exceeded, the owner or operator shall convert the

weekly or monthly flow rate from the monitoring data

obtained under Section 724.354(c) to an average daily

flow rate (gallons per acre

per

day)

for each swap.

15A waste pile is a temporary repository for waste, which

will

be

removed upon closure of the pile.

A “pile” in which

waste

will

remain

permanently

is

a

type

of

landfill.

~The

reduced

calculation frequency provisions for

impoundments depend on the pump activation level, which

provisions

are

also

missing

from

the waste pile provisions.

0138-0802

---

39

The average daily flow rate for each swap must be

calculated weekly during the active life and closure

period

Section 724.353

Response Actions

This Section is derived from 40

CFR

264.253,

which

was

also

added with the leak detection rules.

The new Section replaces a

“ghost”

Section.

This Section governs the response actions which the operator

must take if the action leakage rate is exceeded.

The operator

proposes a response action plan in the permit application

pursuant to 40

CFR

270.18(c)(l)(v)

(703.204(c)(l)(E)).

This

Section

is

comparable

to

Section

724.323

(264.223

above.

There appear to be no major problems with the text.

Section

724.354

Monitoring

and

Inspection

This Section is drawn from 40

CFR

264.254,

which

was

also

amended with the leak detection rules.

This Section governs

“inspection” of the unit by the operator.

The amendment adds subsection

(c), requiring weekly

monitoring

of

swaps:

An owner or operator required to have a

LDS

under

Section 724.351(c)

shall record the amount of liquids

removed from each

LDS

sump at least once each week

during the active life and closure period.

There

is

no

provision

for

monitoring

following closure,

because all

wastes

and

residues

must be removed from a pile on

closure.

SUBPART N:

LANDFILLS

This Subpart specifies design and operating requirements for

landfill units at permitted facilities.

It is derived from 40

CFR

264, Subpart N,

which

was

amended

with

respect

to

the

leak

detection rules, at

57

Fed.

Reg.

3486,

January

29,

1992.

These

amendments are comparable to the amendments discussed above with

respect

to

surface

impoundment

and waste pile

units.

Section

724.401

Design

and

Operating Requirements

This

Section

is

drawn

from

40

CFR

264.301.

Subsections

(c)

and

(d)

are

largely

replaced,

a

new

(f)

is added, and everything

below

is

moved

down.

0138-0803

---

40

Section 724.401(b)

allows for approval of alternative

practices as approved by site—specific rulemaking or variance.

The Board has replaced site—specific rulemaking with a reference

to the adjusted standards procedures, for the reasons discussed

above in connection with Section 724.321(b).

40

CFR 264.301(c)

(724.401(c)) controls

the

applicability

of

the new leak detection requirements.

This appears to be

identical to 40 CFR 264.221(c)

(724.321(c)), which is

set

out

above.

As noted there, the

Board

is using the term Nnew~~

as a

shorthand

description

for

the units to which

the

new requirements

are applicable, and is using

Uleak detection” or “LDS” to

describe

the

requirements,

which

also

include

liner

and

leachate

collection and removal requirements.

40 CFR 264.301(c)(1)(i)(B)

and

(c)(2)

(724.401(c)(1)(A)(ii)

and

(C)

(2)

include numerical standards for liner and drainage

layer hydraulic conductivity, etc.:

A composite bottom liner, consisting of at least two

components... The lower component

must be

constructed

of at least

3 feet

(91 cm) of compacted soil material

with a hydraulic conductivity of no

more

than 1XlO7

cm/sec.

(264.301(c)

(1) (i)

(B)

The leachate collection

and

removal

system between the

liners, and immediately: above

the

bottom

composite

liner.

..

Constructed of granular drainage materials

with

a

hydraulic

conductivity

of

1XIO2

cm/sec

or

more

and

a thickness of 12 inches (30.5 cm) or

more;

or

constructed of synthetic or geonet drainage materials.

with a transaissivity of 3X105 a2/sec or more;

(264.301(c) (2))•

The standards for conductivity and tranamissivity in the

drainage layer are approximately equivalent.

These rules differ

from the surface impoundment rules in that the drainage layers

can be up to ten times less permeable, apparently reflecting the

smaller liquid volumes expected under a landfill.

Indeed, the

standards are equal to

the

standards for a waste pile.

40

CFR

264.301(c)

(2) includes the following cross—reference:

The leachati collection and removal system must c’mply

with paragraphs

(3) (c)

(iii).

and

(iv)

of this sect...on.

This

is

probably

a reference to “(c) (3) (iii) and (iv)”.

The

Board

has

cited to the equivalent “(c) (3) (C) and

(D)”.

40 CFR 264.301(d)

(724.401(d)) allows for alternative design

or

operating

practices.

This

is

similar

to

Section 724.321(d),

above.

When

the Board adopted this

provision,

it

modified

the

01 38-080k

---

41

USEPA

language

to

make

it clear that this technical decision is

to be made pursuant to a permit application.

The language now

adopted by the Board is as follows:

Subsection

(c) will not apply if

the

owner or operator

demonstrates to

the

Agency,

and

the

Agency

finds

for

such

landfill, that alternative design aed g~operating

practices, together with location characteristics, vill

3J.

Will

t~revent

the migration of any hazardous

constituent into the groundwater

or

surface water

at least as effectively as such liners

and

leachate collection and removal systems. sDecified

in

subsection

(c)

above:

and

~

Will allow detection of leaks of hazardous

constituents throuah the toD liner at least as

effectively.

USEPA has also added 40

CFR

264.301(f)

(724.401(f)), which

includes an exemption for replacement units constructed in

compliance with section 3004(0) (1) (A) (i) and (o)(5) of the

Resource Conservation and Recovery Act.

This poses problems

which are similar to those discussed above with respect to

Section

724.321(f).

The

Board

has

handled this as above, by

referencing the repealed pro~~isions

which implemented the cited

RCRA

Act provisions.

The language is as follows:

f)

The owner or operator of any replacement landfill

unit is exempt from subsection

(c)

above if:

1)

The existing unit was constructed in

compliance with the design standards of 35

Ill. Adm. Code 724.401(c),

(d) and

(e), as

amended in R86-1, at 10 Ill. Reg. 14119,

effective August 12, 1986; and

BOARD

NOTE:

The cited subsections

implemented the design standards of

sections 3004(o) (1) (A)

Ii)

and (o)(5) of

the Resource Conservation and Recovery

Act

(42 U.S.C. 6901 et seq.).

2)

There

is no reason to believe that the liner

is not functioning as designed.

Existing Sections 724.401(f)

—

(j)

are promoted to

(g)

—

(k).

40 CFR 264.301(1)

is a site—specific rule applicable only

in

Alabama,

and

does

not

appear

in

the

Illinois

rules.

0138-0805

---

42

Section 724.402

Action Leakage Rate

This Section is drawn from 40 CFR 264.302, which was adopted

with the leak detection rules.

At the State level, the new

language replaces a “ghost” Section.

It specifies the “action

leakage rate”, which triggers response actions under the ensuing

Sections.

It is similar to Section 724.322, above.

40

CFR

264.302(a)

(724.402(a)) has an apparent editorial

error, which the Board has corrected.

The USEPA Section should

apply to “landfill units”, rather than “surface impoundments”.

40

CFR

264.302 (724.402) includes two decisions, which are

similar to those discussed above (in Section 724.322).

The

Regional Administrator approves the action leakage rate, and may

approve an alternative “calculation” of the rate.

The former is

clearly a part of the permit application under 40

CFR

270.21(b)(1)(v)

(703.207(b)(l)(E)).

The latter is a subsidiary

demonstration which is really addressing the frequency of

calculation, rather than the formula for the calculation.

The

standard for the alternative frequency is in 40 CFR 264.303(c) (2)

(724.403(c) (2)), below.

As is the case with the surface

impoundment rule, the alternative frequency is available only

following closure.

The Board has adopted

the

following

(724.402(b)):

To

determine

if

the

action

leakage

rate has been

exceeded,

the

owner

or

operator

shall

convert

the

weekly or monthly flow rate from the monitoring data

obtained under Section 724.403(c) to an average daily

flow

rate

(gallons

per

acre

per

day)

for each swap.

The average daily flow rate for each swap must be

calculated

weekly

during

the active life and closure

period,

and

monthly

during

the post—closure care

period, unless

the

Agency

approves

a different

frequency pursuant to Section 724.403(c) (2).

Section 724.403

Monitoring

and

Inspection’7

This Section is

drawn

from 40 CFR 264.303.

USEPA has added

a subsection

(C)

with

the

leak detection rules.

This provision

is comparable to 40 CFR 264.226(d)

(724.326(d)),

discussed above

in connection with surface impoundments.’8

17This Section deals with “inspection” which is to be

performed by the operator.

18The

order of the rules is different as between the surface

impoundment and landfill rules.

0138-0806

---

43

As is discussed in connection with the surface impoundments,

this Section depends in part on

the

“pump operating level”, which

the Regional Administrator is to approve pursuant to 40 CFR

264.403(d)(3).

This determination is similar to the action

leakage rate and response plan determinations discussed above and

below.

In

Section 703.207(b) (1) (E),

above, the Board has added a

component to the Part B application addressing the

pump

operating

level, alongside

the

action leakage rate and response plan.

This

brings the determination clearly into the permit application

process, avoiding any need for specialized procedures.

The pump

operating level language is as follows (724.403(c) (3)):

“Pump

operating level” is a liquid level proposed by

the owner or operator pursuant to 35 Ill. Ads. Code

703.207(b) (1) (E) and approved by the Agency based on

pump activation level,

swap dimensions and level that

avoids backup into the drainage layer and minimizes

head in the swap.

Section 724.404

Response Actions

This new Section is drawn from 40 CFR 264.304, which was

added with the leak detection rules.

It governs the response

actions the operator must take if the action leakage rate is

exceeded.

This section is comparable to Section 724.323,

discussed

above

in

connection

with surface impoundments.

The operator is required to file a “response action plan”

with the permit application pursuant to Section 703

•

207(b) (1) (E).

The Agency approves the plan pursuant to normal permit approval

procedures.

This Section governs

the

contents of the plan.

40

CFR

264.304 has three minor editorial problems which are

identical to those discussed above in connection with Section

724.323

(“analyses”,

“and/or”

and

“either”).

Section

724.410

Closure and Post-closure Care

This Section is

drawn

from

40

CFR

264.310,

which

was

amended

with the leak detection rules.

The amendments add a new

subsection

(b) (3)

(724.410(b) (3)), which requires the operator to

maintain and monitor the

LDS

during the post—closure care

period;

Existing subsections

(b) (3)

-

(5) are then renumbered.

SUBPART W:

DRIP PADS

This

Subpart

governs

“drip

pads”, a type of hazardous waste

management unit on which wood products are stored following

0138-0807

---

44

application’9 of wood preservatives.

Drip pads were a major

topic

in

R91-1

and

R9l-26.

USEPA has amended the rules at 57

Fed. Reg.

5861,

February

18,

1992.

Section 724.673

Design

and

Operating Requirements

This Section was drawn from 40

CPR

264.573.

It governs

design

and

operating

requirements

for

drip

pads

at

permitted

facilities.

OSEPA has amended this Section “by revising

paragraph

(a) (4) to read as follows:”

(Drip pads must:...)

Be impermeable, e.g., concrete pads must be sealed,

coated, or covered with an impermeable material

such

that. the entire surface where drippage occurs or may

run across is capable of containing such drippage and

mixtures of drippage and precipitation, materials, or

other wastes while being routed to an associated

collection system.

Note:

The requirement that existing drip pads be

impermeable, e.g., that drip pads be

sealed,

coated, or

covered,

with

an

impermeable material is

administratively stayed.

The stay will remain in

effect until October 30,

1992.

The drip pad administrative stays have a complex history,

which may be relevant to the current stay.

USEPA adopted the

drip pad rules on December 6, 1990, and published a stay on June

13,

1991.

This was coupled with a stay of the related P034 and

P035 listings in 40

CFR

261.31.

USEPA

also corrected the rules

on July

1,

1991.

The

Board

addressed all

of

these

when

it

adopted Section 724.673 in R91—1.

The stay situation is complicated by the HSWA status of

different

provisions.

As discussed above, USEPA amendments which

are required by the HSWA amendments to

the

RCRA

Act

become

effective immediately in authorized states, including Illinois.

The P032 listing of chlorophenolic preservatives was HSWA-driven.

On the other hand, the P034 and P035 listings were not HSWA-

driven,

and

hence, from the USEPA perspective, would not become

effective in states until authorized.

However, Sections 7.2 and

22.4(a) of the A”t required Illinois to adopt these rules on a

“fast—track”, regardless of HSWA status and USEPA’s authorization

schedule.

Thus, USEPA had to

write

different

stays

for

the

HSWA

‘91n

other

words,

following

“treatment”

of wood to produce

“treated

wood”.

However,

“treatment” and “treated” are important

terms

within

the

hazardous

waste

rules and have a very different

meaning.

0

I 38-0808

---

45

and non—HSWA portions, and was operating with an incorrect

perspective as to the effect of its actions in Illinois.

(See

Opinions in R91-1 and R91-26.)

The Board adopted the USEPA stays of the P032,

P034 and P035

listings, and of the coating requirement of Section 724.673 in

R9l-l.

However, the Board extended

some

of the notification

dates for the non-HSWA portions of the rules, so as

to

give

persons in Illinois more time to take actions to qualify for the

stay.

Following the adoption of R91-1,

the Board received calls

from wood preservers

who

stated

that

they

were

unable

to

meet

the

specified dates for application of coatings because of the onset

of winter, and that they had been misled by statements at the

national level that they would not have to comply with the non—

HSWA portions of the rule in authorized states.

The Board opened

R91-26 to further extend the dates associated with the stays for

the non-HSWA listings P034 and P035.

R91—26 was adopted just

prior

to

the

February

18,

1992,

USEPA

stay.

The R9l-l stay of

the

impermeable

coating

requirement

of

Section 724.673

(264.573) was embodied in a note following

subsection

(a) (4).

As worded by USEPA, it

read:

Note:

The requirement that new drip pads be

impermeable, e.g., that new drip pads be sealed,

coated, or covered with an impermeable material,

is

administratively stayed.

The

stay

will remain in

effect until further administrative action is taken.

(40

CFR

264.573(a) (4),

56 Fed. Reg.

27336, June 13,

1991.)

As was discussed in R9l-1, at p.

14, USEPA omitted the note

from the corrections which appeared two weeks later

(56 Fed. Reg.

30192,

July

1,

1991).

The Board construed this as an error by

USEPA,

and

retained

the

note

in

the

rules as adopted.

The note

does

not

appear

in

the

1991 Edition of the

CFR

(which,

anachronistically,

included

the

July 1 corrections).

The February

18, 1992, USEPA stay

makes

no mention of the

June 13,

1991,

stay.

It differs in that it applies to

“existing”, rather than “new” pads, and it terminates on a date

certain (October 30,

1992).

In the proposal, the Board was

uncertain

as

to

whether

the

June

13 stay was still in

0138-0809

---

46

existence.2° The Board proposed to retain the stay, but

solicited comment.

BOARD NOTE:

The requirement that new drip pads be

impermeable,

e.g., that new drip pads be sealed, coated

or covered with an

impermeable

material, is

administratively stayed.

The stay will remain in

effect

until

further

administrative action is taken.

The

requirement that existing driD Dads be

impermeable.

~

that

driD

Dads be sealed, coated or coverect with

an impermeable material, is administratively stayed.

The stay will remain in effect until

October

30. 1992.

USEPA informally alerted the Board that USEPA had terminated

the stays, and revised the regulations, at 57 Fed. Reg. 61492

December 24, 1992.

The background discussion at 57 Fed. Reg.

61493 makes it fairly clear that USEPA

regarded

the

June

13.

1991, stay as still in existence.

However, the December 24,

1992, action raises other problems.

One problem is that part of the stay

expired

on October 30,

1992.

Adopting it at this point might force Illinois wood

preservers to comply with rules that have a~readybeen modified

at the USEPA level.

Although the Board coula avoid this problem

by terminating the stay and adopting the

December

24,

1992,

modifications, this would be taking action on a USEPA rulemaking

outside the batch period required by Section 7.2 of the Act.

The December 24 action could be construed

as

a correction to

a matter already before the Board, and taken with this Docket, as

has been done with respect to other similar corrections discussed

in the general introduction to this opinion.

The Board, however,

declines to take such action at this late date.

For one thing,

this would require the Board to act on Sections which were not

included in the original proposal, and to act without affording

notice and the opportunity to comment.

Moreover, it would entail

at least a two-week delay in this rulemaking,

which

is subject to

an extension of time order already.

The Board has therefore

extended the stay until the time the Board

takes

further

regulatory action implementing the December 24,

1992, USEPA

amendments.

Part of the

USEPA

stay

is

“until

further

administrative

action is taken”.

At the State level, this means ac. ~onby the

Board to remove the note:

i.e., a final order in R93—4.

We

expect such action by July 10,

1993.

20USEPA may have intended to repeal the June 13 stay with

the July 1 corrections.

Or, the Board may have missed an

intervening USEPA action removing the stay.

Or, the newest stay

may have replaced the prior stay.

0138-0810

---

47

Some drip pads may be subject to HSWA-driven requirements

which are already effective at the federal level.

The extended

State stay will not be construed as excusing owners or operators

from complying with federal requirements already in effect in

Illinois.

The language adopted by the Board is as follows:

BOARD

NOTE:

The ràquiraaent that new drip

pads

be

impermeable,

e.g., that new drip pads be sealed, coated

or covered with an impermeable material, is

administratively

stayed.

The

stay will

remain in

effeet

until

further

adainietrativo aptien is taken.

The

reauirement

that existing

drib

Dads

be

imtermeable.

e.g.. that drib Dads be sealed, coated or covered with

an impermeable material,

is administratively staved.

The

stave will remain in effect until the

Board

removes

this note by further regulatory action imDlementing

USEPA amendments at 57 Fed.

flea. 61492. December 24.

1992. exøected in Docket R93—4.

The extended State

stay will not be

construed

as

excusing

owners

or

oberators from comblying with any federal reauirements

already In effect in Illinois.

PART 725:

INTERIM STATUS STANDARDS

This Part is drawn from. 40

CFR

265, which was amended mainly

in connection with the leak detection rules for certain new

units.2’

This Part contains the design and operating

requirements for hazardous waste management facilities with

“interim status”,

i.e., those who have filed a Part A permit

application under 40

CFR

270 (7033, but who have not received a

permit.

The

Part

265

(725)

rules are nearly identical to the Part

264

(724) rules, above, which apply to permitted facilities.

One

difference is that the interim status rules often need special

decision-making procedures to be used in the absence of a permit

system.

The new leak detection rules apply to “new” units.

Interim

status facilities are generally prohibited from building new

units

under

35

Ill.

Ads.

Code 703.155.

There are, however,

numerous exceptions, including units added to comply with

21As noted above,

in this opinion, the Board is using

“leak

detection” or

“LDS”

as a shorthand for rules which also include

new liner and leachate collection requirements.

The Board is

also

using

“new”

to

describe

the

applicability

of

the

new

requirements, which

is actually

quite

complex.

See Section

724.321,

above,

for the applicability.

0138-0811

---

48

enforcement orders.

It is therefore possible that an interim

status facility could be required to build a new unit outside the

permit system.

SUBPART B:

GENERAL FACILITY STANDARDS

This Subpart contains general rules governing all types of

interim status hazardous waste facilities.

Section 725.113

General Waste Analysis

This Section is drawn from 40 CFR 265.13, which was amended

at 57 Fed. Reg. 8088,

March 6,

1992, in connection with

the

“third third” corrections.

This involves minor changes in

wording to Section 725.113(a) (1):

Before an owner or operator treats, stores or disposes

of any hazardous wastes, or non—hazardous waste~if

applicable under Section 725.213(d), the owner or

operator shall obtain

a

detailed

chemical

end

physical

analysis of a representative

sample

of

the

wastes.

At

a

minimum, this ~

analysis must contain all the

information which must be

known

to treat, store or

dispose of the waste in accordance with

4I~e

requiroaonts ef this Part and 35 Ill. Ads. Code 728.

Section 725.115

General inspection Requirements

This Section is

drawn

from 40 CPR 265.15, which was amended

at 57 Fed. Reg. 3486,

in connection with the leak detection

.requireaents.

The Section governs “inspection” of the facility

to be performed by the operator.

The amendments mainly add, to

subsection

(b) (4), cross—references to the new rules discussed

below:

The frequency of inspection may vary for the

items

on

the schedule.

However, it should be based on the rate

Of peee4~edeterioration of the equipment and the

probability of an environmental or human health

incident

if

the

deterioration or malfunction

or

any

operator

error

goes

undetected

between

inspections.

Areas

subject

to

spills, such

as

loading

and

unloading

areas, must be inspected daily when in use.

At a

minimum,

the

inspection schedule a ~t include

the

items

and frequencies called for in Sections 725.274,

725.293,

725.295,

725.326,

725.360.

725.378.

725.404,

725.447, 725.477,

725.503, 725.933,

725.952, 725.953

and 725.958. Where abolicable.

0138-0812

---

49

Section 725.119

Construction Quality Assurance

(CQA) Program

This

new

Section is derived from 40 CFR 265.19, which

was

adopted with the

LDS

rules.

It is similar to Section 724.119,

above, except for problems caused by the absence of a procedural

context for decisions.

40 CFR 265.19 includes several references to design and

operating rules contained in 40 CFR 264 (724).

The Board has

generally followed these citations, which appear to reference

provisions not repeated in the interim status rules.

40

CFR

265.19(a)

includes the following sentence:

The (CQA

3

program

must

ensure

that

the

constructed

unit

meets or exceeds all design criteria and specifications

in the

permit.

USEPA has informally advised the Board that this appears to

be an editorial error in that interim status units will not have

permits.

The Board has cited to the Part, with the understanding

that some of the criteria and specifications are actually

referenced in

from Part 724 (264.

The adopted language

(725.119(a)

is:

The

(CQA) program must ensure that the constructed unit

meets

or

exceeds

all

design

criteria

and

specifications

in this Part.

The introductory sentence to 40

CFR

265.19(b)

(725.119(b))

is quite a bit different from the comparable language in

264.19(b)

(724.119(b):

Before

construction begins on a unit subject to the CQA

program

under

paragraph

(a) of this section, the owner

or operator must

develop a written

CQA plan.

For a permitted facility, the operator is required to

“develop and implement” the plan, with an unstated understanding

that this is to be prior to construction.

The Board has followed

the USEPA language in this Section on this.

The new language may

be setting up

the

differences between the permit and interim

status rules, which become more pronounced below.

40

CFR

265.19(c)(2)

(725.119(c)(2)j

requires

test

fills

for

compacted soil liners to confirm conductivity predictions.

As

discussed above with respect to Section 724.119(c) (2), this

provision contains two “and’s” which ought to be “or’s”.

40 CFR 265.19(c)(2)

(725.1l9(c)(2)

also contains the first

decision point in the rule.

This is comparable to 40 CFR

264.l9(c)(2)

724.l19(c)(2))

discussed above.

However, while for

0138-0813

---

50

a permitted facility the Regional Administrator “may accept” an

alternative demonstration of conductivity, the interim status

provision is worded as a self—implementing waiver:

The test fill requirement

is

vaiv.d where data are

sufficient to show that a constructed soil liner meets

the hydraulic conductivity requirements of

(part

2643

in the field.

(40 CFR 265.19(c) (2).)

The Board has left this as

a

self—implementing

waiver.

In

other words, the operator alone decides

whether

data are

“sufficient’ to

dispense

with the

test fill.

However, he does

so

at the risk that the Agency might disagree arid initiate

enforcement at a later date.

The alternative, which the Board is

not following, would be to create a

~priorapproval mechaniEm.

The Board solicited comment on this, but received no response.

The major differences between the permit and interim status

rules

lie

in

40

CP’R

265.19(d)

725.119(d).

For the permitted

facility,

the

CQA

officer merely delivers a certification to the

Agency,

initiating

procedures

for

initial

inspection

of

new units

under

the permit program.

For the interim

status

unit, a similar

procedure

is

created

within

the

rule

(265.19(d)):

Certification. The

owner

or operator of units subject

to § 265.19 must submit to the Regional Administrator

by certified mail or hand delivery, at least 30 days

prior to receiving waste, a certification signed by the

CQA officer that the

CQA

plan has been successfully

carried out and that the unit meets the requirements of

§S 265.221(a), 265.254, or 265.301(a). The owner or

operator may receive waste in the unit after 30 days

from, the Regional Administrator’s receipt of the CQA

certification unless the Regional Administrator

determines in writing that the

construction

is

not

acceptable, or extends the

review

period

for a maximum

of 30 more days, or seeks additional information from

the owner or operator during this period.

Documentation

supporting the CQA officer’s certification must be

furnished to the Regional Administrator upon request.

This clearly sets up a

permit-type

action which needs to be

subject to an appeal to the Board.

The Board has adopted the

following (725.119(d) and

(~..l:

d)

Certification.

The owner or operator of units

subject to this Section must submit to the Agency

by certified mail or hand delivery, at least 30

days

prior

to

receiving

waste,

a

certification

signed

by the CQA officer that the

CQA

plan has

been successfully carried out and that the

unit

meets the requirements of Sections 725.321(a),

---

51

725.354 or 725.401(a).

The owner or operator may

receive waste in the unit after 30 days from the

Agency’s receipt of the CQA certification unless

the Agency determines in writing that the

construction is not acceptable, or extends the

review period for a maximum of 30

more

days, or

seeks additional information from the owner or

operator during this period.

Documentation

supporting the CQA officer’s certification

must

be

furnished to the Agency upon request.

e)

Final Agency determinations pursuant to this

Section are deemed to be permit denials for

purposes of appeal to the Board pursuant to

Section 40 of the Environmental Protection Act.

The above subsection includes a “may”, which the Board has

left alone.

If the Agency fails to respond, the operator has an

option

as

to

whether

to

receive

waste

or

not.

SUBPART

E:

MANIFEST

SYSTEM,

RECORDKEEPING

AND

REPORTING

Section

725.173

Operating

Record

This Section is

drawn

from

40

CFR

265.73, which was amended

with the

LDS

rules.

The

amendments

to

Section

725

•

173 (b) (6)

add

cross references to the new rules discussed below, requiring the

recording of data required there.

As

is

discussed

above

in

Section

724.173,

this

Section has two “and’s” which need to be

“or’s”, since some of the referenced Sections are mutually

exclusive.

The text of Section 725.173(b)(6)

is as follows:

Monitoring, testing or analytical data

and

corrective

action

data

where

required

by

Subnart

F

or

Sections

725.190,

725.194,

725.291,

725.293,

725.295,

725.322.

725.323.

725.326.

725.355.

725.359. 725.360. 725.376,

725.378,

725.380(d)

(1),

725.402 throuah 725.404.

725.447,

725.477,

725.934(c) through

(f),

725.935,

725.963(d)

through

(i)

e~d~

725.964;

SUBPART

K:

SURFACE

IMPOUNDMENTS

This

Subpart

sets

design

and

operating

requirements

for

interim

status

surface

impoundment

units.

It

has

been

modified

by

the LDS

rules

at 57 Fed.

Reg.

3486, January 29,

1992.

Section 725.321

Design and Operating Requirements

This Section is drawn from 40

CFR

265.221, which was amended

with

the

LDS

rules.

It

contains

design

requirements

for

surface

impoundments.

This Section is closely related to 40 CFR 264.221

724.321),

which indeed is referenced.

0138-0815

---

52

The amendments add a new subsection

(a), which serves as

the

basic statement of what types of units are subject to the

LDS

requirements, and as to what the requirements are.

As adopted by

the Board, Section 725.321(a) reads:

The

owner

or

operator

of

each

new

surface

impoundment

unit on which construction commences after

January

29,

1992, each lateral expansion of a surface

impoundment

unit

on

which

construction

commences

after

July

29,

1992,

and each replacement of an existing surface

impoundment

unit

that

is

to

commence

reuse

after

July

29,

1992, shall install two or

more

liners and a

leachate collection and removal system between such

liners, and operate

the

leachate collection and removal

system,

in

accordance

with

35

IlL

Ada.

Code

724.321(c), unless exempted under 35 Zll. Ada. Code

724.321(d),

(e) or

(f).

“Construction commences” is as

defined in 35 Ill. Ads.

Code 720.110 under “existing

facility.”

These dates have already passed.

As discussed above, there

appears to be no retroactivity problem with adopting these dates

for HSWA-driven requirements which are alreaçly applicable as

federal

law.

Existing 40

CFR

265.221(c)

contains

the alternative design

and

operating practices demonstration which is discussed above in

connection with Section 724 .321(d).

This has apparently been

repealed and replaced with new language which is unrelated to the

alternative demonstration.

The Board has followed USEPA and

repealed this language.

The Board solicited comment as to

whether this might be an editorial error by USEPA, but received

no response.

On the one hand,

it is possible that USEPA intended

to instead replace subsection (b)~,which contains a

notification requirement which may be in conflict with

the

new

language in 40

CFR

265.19(d)

(725.119(d)

above.

On the other

hand,

it is possible that USEPA has determined that the

alternative should be available for permitted units only.

If

USEPA intended to retain the

language,

it

has

failed

to

make

amendments

which

would

be

necessary

to

accommodate

the

LDS

rules.

The new language of 40 CFR 265.221(c)

(725.321(c)) concerns

the exemption for surface impoundments which were designed to

meet standards set out ir the R~RAAct, “ed which are not

leaking.

This was discusbed above in

con,1ec+~on

with Section

724.321(f), in which the Board refer~cedthe regulatory version

of the

RCRA

standards, rather than the statute itself.

The Board

has followed the same course here.

However, in that the interim

~This notice requirement is, however, back—referenced in 40

CFR

265.222(a).

0138-0816

---

53

status

rules were apparently never amended to reflect the

statutory

requirements,

the

Board

has to cited Part 724

(264)

version.

The text of Section 725.321(c)

is as follows:

The owner or operator of any replacement surface

impoundment unit is exempt from subsection

(a)

above

if:

1)

The existing unit was constructed in

compliance with the design standards of 35

Ill. Ada. Code 724.321(c),

(d) and

Ce),

as

amended in R86—1, at.10 Ill. Reg. 14119,

effective August 12,

1986; and

BOARD NOTE:

The cited subsections

implemented the design standards of

sections

3004(0)

(1)

(A)

(i) and

(o)(5) of

the Resource Conservation and Recovery

Act (42 U.S.C. 6901 et seq.).

2)

There

is

no reason to believe that the liner

is

not

functioning

as

designed.

The

Board

has made minor editorial revisions to existing

Section

725.321(d),

as

follows:

The

double

linor

requiromont

A~encvshall

not

reanire

a

double liner as set forth in subsection

(a) may—be

uaived

by

the

Agency

for

any

monofill,

if:...

Pursuant

to

bullet

6

in

the Fed. Reg., Sections 725.322(a)

and

(b)

have been moved to become Sections 725.321(f)

and

(g).

This has to be shown as a repeal and new adoption of the language

under the Administrative Code.

A cross reference in former

Section 725.322(a)

265.222(a)

has to be changed from

“subsection (b)” to “subsection

(g)” to correspond with the new

numbering.

The existing Board rule has a subsection which is not

present in the CFR.

Section 725.321(f) authorizes appeal of

the

Agency determinations under this Section.

It will be renumbered

to 725.321(h).

Although one Agency determination is repealed

above, others remain.

Section 725.322

Action Leakage Rate

This Section is drawn from 40

CFR

265.222.

As discussed

above, USEPA has moved the existing text to the preceding

Section, and adopted new language in connection with the

LDS

rules.

This Section now specifies the action leakage rate, the

amount of liquid in the

LDS

which triggers a response action.

It

0138-0517

---

54

is

similar

to

Section

724.322 above, except for the complexities

introduced by the absence of a

permit

system.

40 CFR 265.222(a)

725.322(a))

sets up an approval procedure

for interim status leakage rates:

The owner

ox

operator of surface impoundment units

subject to

§

265.221(a) must submit a proposed action

leakage rate to the Regional Administrator when

submitting the notice required under 4 265

•

221 (b).

Within 60 days of receipt of the notification, the

Regional Administrator will: Establish an action

leakage rate, either

as

proposed by the owner or

operator or modified using the criteria in this

section; or extend

the

review

period

for

up

to

30

days.

If

no

action

is

taken

by

the

Regional

Administrator

before the original 60 or extended 90 day review

periods, the action leakage rate will be approved as

proposed by the owner or operator.

Section

725.322(a)

follows

this

language

closely,

subject

to

the appeal language in Section 725.322(d).

40

CFR

265.222(b)

(725.322(b)) contains the standard for the

action leakage rate determination.

This is very similar to

Section 724.322(a)~above.

40 CFR 265.222(c)

725:322(c))

specifies the

method

by which

the leakage rate is calculated.

This includes an alternative

“calculation”, which suffers from the

same

problems as discussed

‘above in Section 724.322(b):

the alternative applies to the

frequency of calculation,

and

relates only to the post-closure

care period.

The language adopted by the Board is as follows

(725.322(c)):

To determine if

the

action leakage rate has been

exceeded,

the owner or operator shall convert the

weekly or monthly flow rate from the monitoring data

obtained under Section 725.326(b)

to an average daily

flow rate (gallons

per

acre per day) for each aump.

The average daily flow rate for each sump must be

calculated weekly during the active life and closure

period

and,

if

the unit is closed in accordance with

Sectior 725

•

328(a) (2), monthly during the post—closure

care pe~.iod,unless the

ag.cy approves a

different

frequency pu~uantto Sectio~725.326(b).

~The standard gets pushed down in the rule because of the

greater complexity of the procedures for the interim status unit,

even at the federal level.

0138-0618

---

55

The Board has added language allowing appeals of Agency

determinations under this Section (725.322(d)):

Final Agency determinations pursuant to this Section

are

deemed

to

be

permit

denials

for

purposes

of

appeal

to

the

Board

pursuant

to

Section

40

of

the

Environmental Protection Act.

Section 725.323

Response Actions

This Section is drawn from 40

CFR

265.223.

There is a

fundamental ambiguity in the USEPA action on this Section, at 57

Fed.

Reg.

3486, January 29,

1992, with the

LDS

rules.

Bullet 7

in the Fed. Reg. instructs that Section 265.223 “is added”.

However, there is an existing, unrelated 40 CFR 265.223.

The

Board

suggests

that

USEPA

intended

to

insert the new Section

into

the “reserved” Section 265.224,

and to retain the existing

Section

265.223.

USEPA has informally advised the Board that this was an

error, but that it has not decided on which way to correct it.

The Board could correct this apparent error in two ways:

the

Board could either use

the

reserved number for the new Section,

or move the existing Section over to the new number.

The Board

has followed the latter course.

The pre-existing text

(a three—

line Section) will appear below,

as

Section 725.324.

This

alternative avoids the necessity of correcting numerous cross—

references into this Section.

The new text deals with response actions which are required

if the action leakage rate is exceeded.

It is similar to Section

724.323, above, except for the complexities introduced in

the

absence of a permit system.

40 CFR 265.223 (a)

(725.323 (a)) requires that the operator

submit a response action plan with the proposed action leakage

rate under the preceding Section.

That portion of the procedure

thus appears to be subsumed within that Section.

However, this

Section also has decision points following notification of any

exceeclence.

These potentially could be the subject of an appeal

to the Board.

The Board has therefore added Section 725

•

223(d),

authorizing appeals.

40

CFR

265.223(c)

(725.323(c)) has three minor editorial

problems, which are the same as those discussed above for

264.223:

“analyses”, “and/or” and “either”.

The complete text of Section 725.323 as adopted by the

Board

is as follows:

a)

The owner or operator of surface impoundment units

subject to Section 725.321(a)

shall submit a

0138-0819

---

56

response action plan to the Agency when submitting

the proposed action leakage rate under Section

725.322.

The response action plan must set forth

the actions to be taken if the action leakage rate

has been exceeded.

At a minimum, the response

action plan must describe the actions specified in

subsection

(b) below.

b)

If the flow rate into the

LDS

exceeds the action

leakage rate for any sump, the owner or operator

shall:

1)

Notify the Agency in writing of the

exceedence within 7 days of the

determination;

2)

Submit a preliminary written assessment to

the Agency within 14 days of

the

determination, as to the amount of liquids,

likely sources of liquids, possible location,

size and cause of any leaks, and short—term

actions taken and planned;

3)

Determine

to the extent practicable

the

location, size and cause of any leak;

4)

Determine whether waste receipt should cease

or be curtailed, whether any waste should be

removed from

the

unit for inspection, repairs

or controls, and whether or not the unit

should be closed;

5)

Determine any other short-term and longer-

term actions to be taken to mitigate or stop

any leaks; and

6)

Within 30 days after the notification that

the action leakage rate has been exceeded,

submit to the Agency the results of the

determinations specified in subsections

(b)(3),

(4) and

(5)

above, the results of

actions taken, and actions planned.

Monthly

thereafter, as long as the flow rate in the

LDS

exceeds

the

action leakage rate,

the

owner

or operator shall submit to the Agency

a resort summarizing the results of any

remedial actions taken and actions planned.

C)

To make the leak or remediation determinations in

subsections

(b) (3),

(4) and

(5) above, the owner

or operator shall:

0138-0820

---

57

1)

Either:

A)

Assess

the

source

of

liquids

and

amounts

of liquids by source;

B)

Conduct a fingerprint, hazardous

constituent or other

analyses

of

the

liquids in the

LDS

to identify the

source of liquids and possible location

of any leaks, and the hazard and

mobility

of

the

liquid;

and

C)

Assess the seriousness of any leaks in

terms

of

potential

for

escaping

into the

environment; or

2)

Document

why

such assessments are not needed.

d)

Final Agency determinations pursuant to this

Section are deemed to be permit denials for

purposes

of

appeal

to

the Board pursuant to

Section 40 of the Environmental Protection Act.

Section

725.324

Containment

System

As

discussed

above,

USEPA appears to have inadvertently

repealed the text of 40

CFR

265.223.

The

Board

has retained

the

text under this new Section~number. This may require revision to

conform with USEPA’s forthcoming correction.

Section 725.326

Monitoring and Inspection

This Section is drawn from 40

CFR

265.226, which was amended

in connection with the LDS.

It deals with monitoring and

inspection to be performed by the operator.

This Section is

comparable to Section 724.326 above.

The prior federal Section violated Code Division subsection

lettering requirements, requiring rearrangement when this Section

was adopted in 1982.

The amendment accidently brings the USEPA

text into compliance, so that the Board can rearrange its Section

to conform with the USEPA language.

The USEPA amendments add subsections

(b) (1)

—

(3).

The

Board has added a grouping heading to comply with Code Division

requirements

This Section includes the pump operating level

determination, which winds up being a quasi—permit action in this

Part.

The operator is required to file a proposed pump operating

level with the proposed action leakage rate in Section 265.222 (a)

(725.322(a))

above.

Arguably the procedures specified above

0138-0821

---

58

would suffice.

However, the

Board

has added procedural language

here as Section 725.326(c).

Section

725.328

Closure

and

Post—closure

Care

This Section is drawn from 40

CFR

265.228.

Subsection

(b) (2) was added with the

LDS

rules, to require maintenance and

monitoring of the

LDS

after closure.

As adopted by the Board,

Section 725.328(b) (2)

reads:

Maintain and monitor the

LDS

in accordance with 35 Ill.

Adm. Code 724.321(c) (2) (D) and (c)(3) and 725.326(b)

and comply with all other applicable

LDS

requirements

of this Part;

The USEPA amendment includes a typographical error which

the

Board has fixed.

40 CFR 265.228(b)(2)

(725.328(b)(2)) references

Section “265.221(c) (2) (iv) and

(c) (3)”.

However, no such

Sections exist.

USEPA apparently intended to reference to the

design standards in Part 264

(724),

which

are referenced into

Part 265

(725).

The

comparable

USEPA landfill rule discussed

below as Section 725

•

410(b) (2) contains the correct citation,

which the Board is following.

SUBPART L:

WASTE

PILES

This Subpart governs design and operating requirements for

interim status waste piles.~USEPA amended these rules in

connection with the leak detection system

(LDS)

rules

at

57

Fed.

Reg.

3486, January 29, 1992.

These rules are comparable to the

rules for permitted waste piles in Section 724.352., et seq.,

above, and to the rules for interim status surface impoundments

immediately above.

The rules differ from the Part 724 rules in

that a procedural context for decisions generally needs to be

created in the absence of a formal permit system.

The rules

differ from the surface impoundment

(and landfill) rules in that

piles are storage units from which wastes will be removed on

closure.24

Section 725.354

Design

and Operating Requirements

This Section is drawn from 40 CFR 265.254, which was

completely revised with the

LDS

rules.

This contains the

statement of applicability to “new” piles,

and references the

desigr standards of Section 724.351, above.

The applicability is

identical to that stated above with respect to surface

impoundments.

24A “pile” in which waste is to remain after closure is a

type of landfill.

0138-0622

---

59

40

CFR

265.255 (725.355), discussed

below,

references “the

notice required under” this Section.

However, the notice

requirement appears to have been omitted from the Federal

Register (265.254).

The Board has adopted the following

language, which is drawn from 40

CFR

265.221(b)

(725.321(b),

the

comparable

language

for

interim

status

surface

impoundments

discussed

above:

The owner or operator of

each

unit referred to in this

Section shall notify the Agency at least sixty days

prior to receiving waste. The owner or operator of each

facility submitting notice shall file a Part B

application within six months of the receipt of such

notice.

This has been added as sentences to this Section, which

lacks a subsection structure.

When USEPA corrects this,

it will

probably make this into a subsection

(b).

The Board has not done

so at this time, to preserve correspondence with the current

USEPA subsection lettering.

Section 725.355

Action Leakage Rates

This Section is drawn from 40 CFR 265.255, which was added

with the

LDS

rules.

This Section governs the action leakage

rate, the amount of liquid in the

LDS

which triggers a response

below.

It

iB

comparable to Section 724.352 for permitted piles,

and to 725.322 for interim status surface impoundments,

above.

The operator proposes an action leakage rate, which is

subject to approval (or default approval)

as discussed above for

Section 725.322.

The Board has added Section 725.355(d) to

establish an appeal mechanism.

40 CFR 265.255(c)

(725.355(c))

includes a reference to

approval of a “different calculation” of the leakage rate.

This

raises issues similar to those discussed above with respect to

Section 724.352.

The rule is actually referring to the frequency,

rather than

the

method of calculation.

However, the standards

for the alternative frequency appear to be absent from the waste

pile rules, which lack post—closure care provisions.

For the

reasons discussed above, the Board suggests that the inclusion of

the “different calculation” language is an editorial error.

The

Board has omitted this clause.

Section 725.359

Response Actions

This new Section is drawn from 40

CFR

265.259, which was

added with the

LDS

rules.

This specifies the response actions

which must be taken if the action leakage rate is exceeded.

This

Section is comparable to Section 724.353 for permitted piles, and

to 725.323 for interim status surface impoundments.

The language

0138-0823

---

60

is very similar to Section 725.323.

There appear to be no major

problems with the text (other than the “analyses”, “either” and

“and/or” discussed above).

The

Board

has added a subsection

(d)

to authorize appeals of Agency determinations.

Section 725.360

Monitoring and Inspection

This new Section is drawn from 40 CFR 265.260, which was

added with the

LDS

rules.

It reads as follows:

An owner or operator required to have a

LDS

under

Section 725.354 shall record the amount of liquids

removed from each

LDS

aump at least once

each week

during the active life and closure period.

SUBPART N:

LANDFILLS

This Subpart governs interim status landfill units.

It was

also amended mainly with the LDS rules at 57 Fed. Reg.

3486,

January 29,

1992.

The amendments to this

Subpart

are similar to

the amendments for permitted landfills in Section 724.401 et

seq., above, and for interim status surface impoundments Section

725.321 et seq., above.

Section 725.401

Design

and Operating Requirements

This

Section

was

amended

both

with

the

LDS

rules,

and

with

the “third third” corrections.

This Section contains the design

and operating requirements for interim status landfills.

It is

comparable to Sections 724.401 and 725.321.

40

CFR

265.301(a)

contains the applicability statement for

“new”~landfill units which must install LDS.

The Section

references the design standards in Section 724.401, above.

The

retroactive dates should pose no problem for these HSWA

requirements.

USEPA has informally confirmed that there is a typographical

error in the applicability statement in 40 CFR 265.301(a)

(725.401(a)) as set forth in the Federal Register.

A

line has

been dropped from the language as let

forth

at five other places

in the Federal Register.

The Board has added the line, which is

indicated in bold below 725.401(a)):

O)perate

the leachate collection and removal systems,

in accordance with 35 Ill. Mm. Code 724.401(0),

Unless

sxempt.d by 35 111. Ads. Cod. 724.401(d),

(e) or

(f).

~The Board is using “new” to describe this complex

applicability statement, which is identical to that set forth

above for Section 725.321.

0 138-O82~

---

61

40 CFR 265.301(c) apparently replaces

the

“alternative

design and operating practices” determination.

As is discussed

in connection with Section 725.321(c),

the Board has followed

this repeal, which raised questions discussed above.

New Section 265.301(c)

(725.401(c)) contains new language

referencing design standards in the

RCRA

Act.

These standards

are apparently contained in Section 724.401, as it existed prior

to these amendments.

The Board has used the same language

discussed above in connection with that Section.

The language is

(725.401(c):

The owner or operator of any replacement landfill unit

is exempt from subsection

(a) above if:

1)

The existing unit was constructed in compliance

with the design standards of 35 Ill. Adm.

Code

724.401(c),

(d) and

(e), as amended in R86-l, at

10 Ill. Reg.

14119, effective August 12,

1986; and

BOARD NOTE:

The cited subsections

implemented the design standards of sections

3004(o)

(1)

(A) (i)

and

(o)(5)

of

the

Resource

Conservation

and

Recovery

Act

(42

U.S.C.

6901

et seq.).

2)

There is no reason. to believe that the liner is

not functioning as designed.

40

CFR

265.301(d)(1)

(725.401(d)(l)

was

amended

in

connection

with

the

“third

third” corrections.

The amendments

change a reference to the EP toxicity characteristic to toxicity

characteristic, limited to D004 through D017.

In addition, the

Board has modified language to eliminate the term “waived”

(725.401(d) (1):

The double liner requirement Aaencv shall not require a

double liner as set forth in subsection

(a) may bc

iaivcd by tho Agcnoy for any monofill,

if:

1)

The monofill contains only hazardous wastes from

foundry furnace emission controls or

metal

casting

molding sand, and such weetee-de

v~ste~

4Qe~

not

contain constituents which vou1~render the wastes

hazardous for reasons other the ~

toxicity

ehareeterieties in 38 Ill.

Ads.

Cede 7Z~1.1~4

toxicity characteristic in 35 Ill.

Adm. Code

721.124. with hazardous waste number D004 through

D017;

The text of 40 CFR 265.302 has been moved into this Section,

where it will now appear as Section 265.301(f)

—

(i)

(725.401(f)

0138-0825

---

62

—

(i)).

Existing Section 725.401(f), which deals with appeals

and has no federal counterpart, has been moved down to

(j).

Section 725.402

Action Leakage Rate

This Section was drawn from 40 CFR 265.302.

With the

LDS

rules, USEPA has moved

the