ILLINOIS POLLUTION CONTROL BOARD
    April
    9,
    1992
    IN THE MATTER OF:
    )
    R91—l3
    RCRA UPDATE, USEPA REGULATIONS.)
    )
    Identical in Substance
    (1/1/91
    —
    6/30/91)
    )
    Rules)
    Adopted Rule.
    Final Order.
    OPINION OF THE BOARD
    (by J. Anderson):
    ‘By a separate Order,
    pursuant to Section 7.2 and 22.4(a)
    of
    the Environmental Protection Act
    (Act), the Board is amending the
    RCRA hazardous waste regulations.
    The amendments involve 35 Ill.
    Adm. Code 703,
    720,
    721,
    722,
    724,
    725,
    726 and 728.
    The Board
    will not file the adopted rules before May 8,
    1992, to allow time
    for post—adoption comments, from the agencies involved in the
    authorization process.
    As is discussed below, the Board has added the August 19,
    1991, USEPA amendments concerning K061,
    electric arc furnace dust
    to this rulemaking.
    These amendments may pose problems of
    interpretation which commenters need to review during the post—
    adoption comment period.
    As is discussed below in connection
    with Section 721.104(b)~(I1),the Board has restricted the
    temporary “free product recovery exclusion” to free product
    recovery carried out pursuant to the UST rules, thereby
    immediately bringing into the hazardous waste program any free
    product recoveries carried out at
    facilities with above—ground
    tanks,
    such as refineries.
    Commenters will need to provide,
    during the post-adoption period, the identity of the “written
    agreement” used in such clean-ups in Illinois,
    if they want the
    exclusion added back.
    As is discussed below in connection with
    Section 726.203(a) (1), the Board has modified the definition of
    “existing facility”
    in connection with the “BIF” rules so as to
    make the USEPA action on the “certification of precompliance”
    dispositive as to whether a BIF is an “existing facility”.
    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
    ‘The Board acknowledges the contributions of Morton Dorothy and
    LouAnn Burnett of the Scientific/Technical Section, Deborah Frank,
    Regulatory
    Assistant,
    and
    Barbara
    Higgins,
    Paralegal,
    in
    the
    preparation of this Opinion and Order.
    132—167
    2
    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,
    1991.
    The USEPA actions during this period are as follows:
    Date
    56
    Fed.
    DescriDtion
    Req.
    Third third correction
    Hydrocarbon Recovery
    Toxicity characteristic/CFC5
    Boilers and Industrial Furnaces
    (BIF5)
    Strontium sulfide delisting
    correction
    Site specific treatment standard
    variance
    Hydrocarbon recovery——extended
    compliance date
    Process vents correction
    Administrative stay of K069
    listing
    Modification of petroleum
    refinery listings
    Mining wastes exclusion
    Administrative stay of wood
    preserving rules
    The major USEPA actions are the third third correction and
    the BIF rules.
    The actions are further discussed below.
    As is discussed below,
    the Board has partially addressed
    some of these USEPA actions in prior Dockets (R90-ll, R90-l7 and
    R91-1),
    including a portion of the third third correction,
    administrative stays and extensions of compliance dates.
    USEPA also published a correction to the wood preserving
    rules at 56 Fed. Reg.
    30195, July 1,
    1991.
    The Board addressed
    this in R90-l1, even though it is actually beyond the scope of
    even this update.
    As is also discussed below, after the conclusion of this
    batch period, USEPA published three corrections to the BIF rules.
    These appeared at:
    56 Fed. Reg. 32688, July 17,
    1991;
    56 Fed.
    Reg.
    42511, August 27,
    1991;
    and,
    56 Fed. Reg. 43877, September
    5,
    1991.
    The Board has addressed the corrections in this Docket.
    As is discussed below in connection with Section 721.103,
    721.104, and 728.Tables A and D, the third third corrections left
    a loose string hanging concerning the high zinc subcategory of
    K06l.
    This was the subject of a USEPA correction at 56 Fed.
    Reg.
    January 31,
    1991
    February 1,
    1991
    February 13,
    1991
    February 21,
    1991
    3876
    3978
    5915
    7206
    February 25,
    1991
    7568
    March 25,
    1991
    12355
    April
    2,
    1991
    13411
    April 26,
    1991
    May 1,
    199.
    19290
    19952
    May 13,
    1991
    21958
    June 13,
    1991
    June 13,
    1991
    27318
    27336
    132—168
    3
    41176,
    August 19,
    1992.
    PC
    1 and 2 asked the Board to include
    this USEPA action in this Update.
    As is discussed below, the
    Board has amended these Sections in response to the August 19,
    1992 Federal Register, even though this is outside the normal
    scope of this rulemaking.
    The USEPA amendments include several site—specific
    delistings.
    As provided in 35 Ill. Adm. Code 720.l22(p),
    as
    amended in R90-17, the Board will not adopt site—specific
    delistings as determined by the USEPA unless and until someone
    files a~proposalshowing that the waste will be generated or
    managed in Illinois.
    As is discussed below, the Board will handle the March 25,
    1991,
    site specific “treatment standard variance” in much the
    same way as a site specific delisting:
    the Board will take no
    action on the site specific USEPA rule without some form of
    petition.
    PUBLIC COMMENT
    The proposed rules were published on January 17,
    1992,
    at 16
    Ill.
    Reg.
    791.
    The Board has received the following public
    comment:
    PC 1
    Keystone Steel and Wire, January
    3,
    1992
    PC 2
    Peoria Disposal Company, February 2,
    1992
    PC 3
    Administrative Code Division, February 20,
    1992
    PC 4
    Charles Licht Engineering Associates,
    Inc., March
    2,
    1992
    PC 5
    USEPA, March
    9,
    1992
    PC 6
    David Piech,
    Ross and Hardies, February 7,
    1992
    PC
    1 and
    2 requested inclusion of the August 19,
    1991,
    Federal Register, which corrected the BDAT standard for K061
    waste.
    This is discussed below in connection with Part 268.
    PC 4 noted an apparent controversy in the interpretation of
    Section 721.122(b),
    as to whether the corrosivity characteristic
    can be applied to a waste which is not a liquid.
    Because this
    Section is not involved in this rulemaking,
    the Board will not
    take any action on this comment at this time,
    after the
    opportunity for regular public comment has passed.
    The Board
    intends to address this language in R92-1.
    PC 5 is a detailed comment from USEPA, noting a number of
    minor errors in the proposal.
    The Board has generally corrected
    132—169
    4
    these errors.
    PC
    6
    is a short comment addressing analytical methods for
    measuring “SSU”,
    a viscosity measurement discussed with Section
    726. 200.
    EXTENSION OF TIME ORDERS
    Section 7.2(b) of the Act requires that identical in
    sunstance rulemakings be completed within one year after the
    first U~EPAaction in the batch period.
    If the Board is unable
    to do so it must enter an “extension of time” Order.
    The first USEPA action in this batch period was on January
    31,
    1991.
    This update was therefore due by January 31,
    1992.
    The Board entered an extension of time Order on January
    9,
    1992.
    Reasons included the length of this proposal, difficulties in
    obtaining the USEPA text on diskette, and delays in R91-3.
    The
    Board anticipated adoption of this Order on March 26,
    1992.
    HISTORY OF RCRA, UST and UIC ADOPTION
    The Illinois RCRA, UST (Underground Storage Tanks)
    and UIC
    (-Underground Injection Control) regulations, together with more
    stringent State regulat.ions particularly applicable to hazardous
    waste,
    include the following:
    702
    RCRA and UIC Permit Programs
    703
    RCRA Permit Program
    704
    UIC Permit Program
    705
    Procedures for Permit Issuance
    709
    Wastestream Authorizations
    720
    General
    721
    Identification and Listing
    722
    Generator Standards
    723
    Transporter Standards
    724
    Final TSD Standards
    725
    Interim Status TSD Standards
    726
    Specific Wastes and Management Facilities
    728
    USEPA Land Disposal Restrictions
    729
    Landfills:
    Prohibited Wastes
    730
    UIC Operating Requirements
    731
    Underground Storage Tanks
    738
    Injection Restrictions
    Special procedures for RCRA cases are included in Parts 102,
    103,
    104 and 106.
    Adoption of these regulations has proceeded in several
    stages.
    The Phase IRCRA regulations were adopted and amended as
    follows:
    132—170
    5
    R8l—22
    45 PCB 317, February 4,
    1982,
    6 Ill.
    Reg.
    4828,
    April 23,
    1982.
    R82—l8
    51 PCB 31, January 13,
    1983,
    7 Ill. Reg.
    2518,
    March 4,
    1983.
    Illinois received Phase I interim authorization on May 17,
    1982
    (47 Fed. Reg. 21043).
    The UIC regulations were adopted as follows:
    R81—32
    47 PCB 93, May 13,
    1982;
    October 15,
    1982,
    6 Ill.
    Reg.
    12479.
    The UIC regulations were amended in R82-18, which is
    referenced above.
    The UIC regulations were also amended in R83—
    39:
    R83—39
    55 PCB 319, December 15, 1983;
    7 Ill. Reg.
    17338,
    December 20,
    1983.
    Illinois received UIC authorization February 1,
    1984.
    The
    Board has updated the UIC regulations:
    R85—23
    70 PCB
    3~l1,
    June 20,
    1986;
    10 Ill. Req.
    13274,
    August
    8,
    1986.
    R86—27
    Dismissed at 77 PCB 234, April 16,
    1987
    (No USEPA
    amendments through 12/31/86).
    R87—29
    January 21,
    1988;
    12
    Ill.
    Reg.
    6673, April
    8,
    1988;
    (1/1/87 through 6/30/87).
    R88—2
    June 16,
    1988;
    12 Ill. Reg.
    13700, August 26,
    1988.
    (7/1/87 through 12/31/87).
    R88—17
    December 15,
    1988;
    13
    Ill.
    Reg.
    478, effective
    December 30,
    1988.
    (1/1/88 through 6/30/88).
    R89—2
    January 25, 1990;
    14
    Ill.
    Reg.
    3059, effective
    February 20,
    1990
    (7/1/88 through 12/31/88).
    R89—ll
    May 24,
    1990;
    14 Ill. Reg.
    11948, July 20,
    1990,
    effective July 9,
    1990.
    (1/1/89 through
    11/30/89).
    R90—5
    Dismissed March 22,
    1990 (12/1/89 through
    12/31/89)
    R90-14
    Proposed November 8,
    1990; November 26,
    1990;
    14
    Ill. Reg. 18681
    (1/1/90 through 6/30/90)
    132—17 1
    6
    R9l—4
    Dismissed February 28,
    1991
    (7/1 through 12/31/90)
    R91—l6
    Dismissed December 6,
    1991
    (1/1 through 6/30/91)
    R92—4
    Next UIC Docket (7/1/91 through 12/31/91)
    The Phase II RCRA regulations included adoption of Parts 703
    and 724, which established the permit program and final TSD
    standards.
    The Phase II regulations were adopted and amended as
    follows:
    R82—l9
    53 PCB 131, July 26,
    1983,
    7 Ill. Reg. 13999,
    October 28,
    1983.
    R83—24
    55 PCB 31, December 15,
    1983,
    -8 Ill. Reg.
    200,
    January
    6,
    1984.
    On September 6, 1984, the Third District Appellate Court
    upheld the Board’s actions in adopting R82-19 and R83—24.
    (Commonwealth Edison et al.
    v. IPCB,
    127 Ill.
    App.
    3d 446; 468 NE
    2d 1339
    (Third Dist.
    1984).)
    The Board updated the RCRA regulations to correspond with
    USEPA amendments in several dockets.
    The period of the USEPA
    regulations covered by the update is indicated in parentheses:
    R84—9
    64 PCB 427, June 13,
    1985;
    9 Ill. Reg.
    11964,
    effective July 24,
    1985.
    (through 4/24/84)
    R85-22
    67 PCB 175,
    479, December 20,
    1985 and January
    9,
    1986;
    10 Ill. Reg. 968, effective January 2,
    1986.
    (4/25/84
    ——
    6/30/85)
    R86—l
    71 PCB 110, July 11,
    1986;
    10 Ill. Reg.
    13998,
    August 22,
    1986.
    (7/1/85
    ——
    1/31/86)
    R86—l9
    73 PCB 467, October 23,
    1986;
    10 Ill.
    Reg. 20630,
    December 12,
    1986.
    (2/1/86
    ——
    3/31/86)
    R86-28
    75 PCB 306, February 5,
    1987; and 76 PCB 195,
    March
    5,
    1987;
    11 Ill. Reg.
    6017, April
    3,
    1987.
    Correction at 77 PCB 235, April 16,
    1987; 11 Ill.
    Reg.
    8684, May 1, 1987.
    (4/1/86
    ——
    6/30/86)
    R86—46
    July 16,
    1987; August 14,
    1987;
    11 Ill.
    Reg.
    13435.
    (7/1/86 ——9/30/86)
    R87—5
    October 15,
    1987;
    11 Ill. Reg. 19280, November
    30,
    1987.
    (10/1/86
    ——
    12/31/86)
    R87—26
    December 3,
    1987;
    12
    Ill.
    Reg.
    2450, January 29,
    1988.
    (1/1/87
    ——
    6/30/87)
    132—172
    7
    R87—32
    Correction to R86—1; September 4,
    1987;
    11 Ill.
    Reg. 16698, October 16,
    1987.
    R87—39
    Adopted June 14,
    1988;
    12
    Ill. Reg.
    12999,
    August 12,
    1988.
    (7/1/87
    ——
    12/31/87)
    R88—16
    November 17,
    1988;
    13 Ill. Reg.
    447, effective
    December 28,
    1988
    (1/1/88
    ——
    7/31/88)
    R89-l
    September 13, October 18 and November 16,
    1989;
    13 Ill. Reg.
    18278, effective November 13,
    1989
    (8/1/88
    ——
    12/31/88)
    R89—9
    March 8,
    1990;
    14 Ill. Reg.
    6225, effective April
    16,
    1990
    (1/1/89 through 6/30/89)
    R90—2
    July
    3 and August 9,
    1990;
    14
    Ill.
    Reg.
    14401,
    effective August 22,
    1990
    (7/1/89 through
    12/31/89)
    R90—10
    August 30 and September 13,
    1990;
    14 Ill. Reg.
    16450, effective September 25,
    1990 (TCLP Test)
    (1/1/90 through 3/31/90)
    R90—11
    April
    11-., -May 23,
    1991;
    15 Ill.
    Reg.
    9323,
    effective June 17,
    1991
    (Third Third)
    (4/1/90
    through 6/30/90);
    Corrected August
    8,
    1991;
    Uncorrected August 22,
    1991.
    R90—17
    Delisting Procedures
    (See below.)
    R91—1
    August
    8,
    1991;
    15 Ill. Req.
    14446, effective
    September 30,
    1991
    (Wood Preserving)
    (7/1/90
    through 12/30/90)
    R9l—l3
    This Docket
    (BIFs)
    (1/1/91 through 6/30/91)
    R91-26
    Wood Preserving Compliance Dates;
    January 9,
    1992;
    16
    Ill. Reg.
    2600, effective February 3,
    1992.
    R92-1
    Next RCRA Docket (7/1/91 through 12/31/91)
    Illinois received final authorization for the RCRA program
    effective January 31,
    1986.
    The Underground Storage Tank rules were adopted in R86-1 and
    R86-28, which were RCRA update Dockets discussed above.
    They are
    currently being handled in their
    own
    Dockets:
    R88—27
    April 27,
    1989;
    13 Ill.
    Reg.
    9519, effective June
    12,
    1989 (Technical standards,
    September 23,
    1989)
    132—173
    8
    R89—4
    July 27,
    1989;
    13
    Ill. Reg.
    15010, effective
    September
    12,
    1989 (Financial assurance, October
    26,
    1989)
    R89—1O
    February 22,
    1990;
    14 Ill. Reg.
    5797, effective
    April 10,
    1990
    (Initial update, through 6/30/89)
    R89—l9
    April 26,
    1990;
    14 Ill. Reg.
    9454, effective June
    4.,
    1990
    (UST State Fund)
    R90—3
    June 7,
    1990;
    (7/1/89
    —
    12/31/89)
    R90—12
    February 28,
    1991
    (1/1/90
    —
    6/30/90)
    R9l—2
    July 25,
    1991
    (7/1 through 12/31/90)
    R91-14
    Current Docket;
    Proposed January
    9 and 23,
    1992
    (1/1/91 through 6/30/91)
    R92-2
    Next UST Docket
    (7/1/91 through 12/31/91)
    The Board added to the federal listings of hazardous waste
    by listing dioxins pursuant to Section 22.4(d) of the Act:
    R84.—34
    61 PCB ?47, November 21,
    1984;
    8
    Ill.
    Reg. 24562,
    effective December 11,
    1984.
    This was repealed by R85—22, which included adoption of
    USEPA’s dioxin listings.
    Section 22.4(d) was repealed by S.B.
    1834.
    The Board has adopted USEPA delistings at the request of
    Amoco, Envirite and USX:
    R85—2
    69 PCB 314, April 24,
    1986;
    10 Ill.
    Reg.
    8112,
    effective May 2,
    1986.
    R87—30
    June 30,
    1988;
    12
    Ill. Reg.
    12070, effective July
    12,
    1988.
    R9l—l2
    December 19,
    1991;
    16 Ill. Reg.
    2155, Effective
    January 27,
    1992
    (USX)
    The Board has modified the delisting procedures to allow the
    use of adjusted standards in lieu of site—specific rulemakings:
    R90—l7
    February 28,
    1991;
    15 Ill. Req.
    7934, effective
    May 9,
    1991
    The Board has granted a delisting by way of adjusted
    standard:
    132—174
    9
    AS91—1
    Keystone, February 6,
    1992
    The Board has procedures to be followed in cases before it
    involving the
    RCRA
    regulations:
    R84—10
    62 PCB 87,
    349, December 20,
    1984 and January 10,
    1985;
    9 Ill.
    Reg. 1383, effective January 16,
    1985.
    The Board ~alsoadopted in Part 106 special procedures to be
    followed in certain determinations.
    Part 106 was adopted in R85-
    22 and amended in R86-46,
    listed above.
    The Board has also adopted requirements limiting and
    restricting the landfilling of liquid hazardous waste,
    hazardous
    wastes containing halogenated compounds and hazardous wastes
    generally:
    R8l—25
    60 PCB 381, October 25,
    1984;
    8 Ill. Req. 24124,
    December 4,
    1984;
    R83—28
    February 26,
    1986;
    10 Ill. Reg.
    4875,
    effective
    March
    7,
    1986.
    R86-9
    Emergency-regulations adopted at 73 PCB 427,
    October 23,
    1986;
    10
    Ill. Reg.
    19787,
    effective
    November 5,
    1986.
    The Board’s action in adopting emergency regulations in R86-
    9 was reversed
    (CBE and IEPA v.
    IPCB et al., First District,
    January 26,
    1987).
    AGENCY OR BOARD ACTION?
    The Board has almost always changed “Regional Administrator”
    to “Agency”.
    However,
    in some situations “Regional
    Administrator” has been changed to “USEPA” or “Board”.
    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 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.
    The regulations will eventually require a RCRA permit for
    each HWM facility.
    However, many “existing units” are still in
    “interim status”.
    Decisions involving interim status are often
    more ambiguous as to whether they are permit actions.
    132—175
    10
    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
    ha~authority to apply a regulation which says “If A, do X;
    if not A, do Y”.
    On the other hand, regulations which say
    “If not A, the state shall waive X” are more 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.
    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.
    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. Adm. Code 104.
    The
    Agency files a recommendation as to what action the Board should
    132—176
    11
    take.
    The Board may conducts 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 ~~arianceis 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. Adm. Code 102 or 106.
    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 make any substantive
    change in the rules by way of these edits.
    DETAILED DISCUSSION
    A Section—by—Section discussion of the amendments appears
    below.
    The federal actions involved in this rulemaking are
    5ummarized as follows:
    January 31, 1991
    56 Fed. Reg. 3876
    Third third
    correction
    E’ebruary 1,
    1991
    56 Fed. Req. 3978
    Hydrocarbon Recovery
    E~’ebruary13,
    1991
    56 Fed. Req. 5915
    Toxicity
    characteristic!CFCs
    ?ebruary 21,
    1991
    56 Fed. Req. 7206
    Boilers and
    Industrial Furnaces
    (BIFs)
    ?ebruary 25,
    1991
    56 Fed. Req. 7568
    Strontium sulfide
    delisting correction
    ~arch 25,
    1991
    56 Fed. Req. 12355
    Site specific
    treatment standard
    variance
    132—177
    12
    April
    2,
    1991
    56 Fed.
    Req.
    13411
    Hydrocarbon
    recovery—-extended
    compliance date
    April
    26,
    1991
    56 Fed. Req.
    19290
    Process vents
    correction
    May 1, 1991
    56 Fed. Reg.
    19952
    Administrative stay
    of K069 listing
    May 13,
    1991
    56 Fed. Req. 21958
    Modification of
    petroleum refinery
    listings
    June 13,
    1991
    56 Fed. Reg.
    27318
    Mining wastes
    exclusion
    June 13,
    1991
    56 Fed. Req. 27336
    Administrative stay
    of wood preserving
    rules
    The largest components of this update are the corrections to
    the “third third” land disposal bans,
    adopted in R90-l1, and the
    new BIF rules.
    USEPA has essentially reprinted the “third third”
    rules to correct numerous editorial errors.
    This has posed major
    problems, since USEPA does not give any indication as to what the
    changes are.
    As is discussed above,
    the BIF rules were the subject of
    three corrections which occurred outside this update period, but
    which are addressed in this Docket.
    These are 56 Fed. Reg.
    32688, July 17,
    1991;
    56 Fed. Reg.
    42511, August 27,
    1991;
    and,
    56 Fed. Reg.
    43877, September 5,
    1991.
    As was also discussed above,
    the Board has included USEPA
    corrections concerning the high zinc subcategory of K061,
    based
    on 56 Fed. Reg.
    41176,
    even though that action was outside this
    update period.
    On February 1 and April
    2,
    1991, USEPA extended the
    temporary exclusion from the TCLP test for UST clean—up wastes in
    Section 721.104(b)(11).
    The former extension was adopted in R9l-
    1, even though it was outside the scppe of that update.
    The
    April
    2 extension was not brought to the Board’s attention in
    R9l-1, and will be addressed in this update.
    On February 13,
    1991, USEPA also modified the TCLP rules to
    avoid encouraging venting of ozone—depleting CFCs.
    On February 25,
    1991, USEPA repealed the strontium sulfide
    listings.
    This corrects a USEPA action at 53 Fed. Req.
    43881,
    October 31,
    1988, which failed to remove the listing because of
    132—178
    13
    an error
    in the notice.
    This requires no action,
    since the Board
    successfully removed this listing in R89-1.
    On April 26,
    1991,
    (ISEPA corrected the process vent rules,
    which the Board adopted in R90—11.
    On May 1,
    1991, USEPA entered an administrative stay of
    listing K069.
    This concerns sludges from pollution control
    equipment at lead smelters.
    This appears to be closely related
    to the problems with the K066 listing, which was extensively
    discussed in R91-l.
    On June 13,
    1991, USEPA appearsto have also
    addressed the mining wastes exclusion, which also figured into
    the R91-l Opinion.
    On May 13,
    1991, USEPA modified the new petroleum refinery
    listings, F037 and F038.
    The Board adopted these in R91-1.
    On June 13,
    1991,
    USEPA entered an administrative stay of
    the wood preserving rules.
    The Board addressed this stay in R91-
    1.
    PART 703:
    RCRA PERMITS
    This Part,
    along with Part 702, contains the RCRA permit
    requirement.
    Most of the amendments to this Part relate to the
    new “BIF”
    (“boiler and industrial furnace”) rules
    in Part 726,
    below.
    Parts 702 and 703 are drawn from 40 CFR 270.
    Section 703.150
    USEPA published a correction to the BIF rules at 56 Fed.
    Req.
    32688, July 17,
    1991.
    As is discussed above and in
    connection with Part 726, the Board has included this correction
    in this update Docket.
    The correction includes an amendment to
    40 CFR 270.1(b), which is not listed as having an equivalent
    Board rule in the correspondence tables last published in R89-9.
    However, the subject matter of 40 CFR 270.1(b) appears to be
    identical to 40 CFR 270.10(e) (1) (i), which appears in the Board
    rules as Section 703.150(a)(1).
    The USEPA correction to 40 CFR 270.1(b)
    is an addition of a
    cross—reference to “part 266”
    (Part 726.
    This appears to be
    correcting a longstanding problem with the USEPA rule,
    since the
    reference to “part 266” exists in the language in 40 CFR
    270.10(e) (1) (i), which otherwise says the same thing.
    As if this is not confusing enough, the Board’s equivalent
    rule, Section 703.150(a) (1), does nothave the reference to Part
    726 266.
    This appears to be a longstanding error
    in the
    Board’s rules, which probably occurred when the Section was
    originally adopted.
    At that time the Board did not expect to
    have to adopt Part 266, and hence omitted all references.
    The
    132—179
    14
    Board has therefore added the needed references,
    although this
    action is more in the nature of a correction to conform with the
    CFR than a response to the USEPA correction.
    It is rather difficult to compare Section 703.150 with 40
    CFR 270.10(e).
    This mainly stems from the arrangement of the
    subsections.
    The Board rearranged Section 703.150 so it tracks
    40 CFR 270.10(e) more closely.
    Also, the Board has added “Board
    notes” to each subsection referencing the equivalent federal
    rule.
    Section 703.155
    This Section is drawn frow-40 CFR 270.72, which was amended
    at 56 Fed. Reg.
    7206, February 21,
    1991.
    This Section prohibits
    changes to interim status facilities without filing a Part B
    permit application.
    The amendments. add subsections
    (a) (6) and
    (b) (7), which allow a revised Part A application to cover newly
    regulated units.
    In other words, persons with newly.regulated
    BIF units will be able to file a Part A to acquire interim status
    for the BIF.
    The USEPA language requires the Part A “on or before the
    unit becomes subject to the new requirements”.
    The Board has
    adopted the USEPA language verbatIm.
    However, at the State level
    this would trigger the Part A on the Board’s adoption of the new
    requirement.
    The Board solicited comment as to whether USEPA
    wanted the Part A to be triggered on the date of adoption by
    USEPA, but received no written response.
    Section 703.157
    This Section is drawn from 40 CFR 270.73, which was amended
    at 56 Fed. Req.
    7206, February 21,
    1991,
    and corrected at 56 Fed.
    Reg. 32688, July 17,
    1991,
    and at 56 Fed. Reg. 42511, August 27,
    1991.
    This Section governs termination of interim status.
    The amendment affects Section 703.157(f)
    and
    (g).
    The
    existing rule terminates interim status for incinerators and
    other facilities by November 8,
    1986 and 1988.
    The amendments
    (as corrected) add the phrase “which has achieved interim status
    prior to November 8,
    1984” to these termination dates.
    The
    result appears to be to allow extended interim status for BIF5
    now being brought into the program.
    Section 703.208
    This Section is drawn from 40 CFR 270.22, which was adopted
    at 56 Fed. Reg. 7206, February 21,
    1991,
    and corrected at 56 Fed.
    Reg.
    32688, July 17,
    1991.
    This specifies the
    RCRA
    permit
    application module for a BIF.
    132—180
    15
    40 CFR 270.22(b)(4)(ii)
    (Section 703.208(b) (4) (B)
    requires
    the trial burn plan to:
    Identify the types and concentrations of organic
    compounds listed in
    35
    Ill.
    Adrn.
    Code 721.Appendix H,
    that are emitted when burning hazardous waste in
    conformance with procedures prescribed by the Director;
    In the first place,
    this probably has a misplaced modifier.
    The “in conforr;’-ance clause”
    is probably intended to modify
    “Identity” rather than “burning”.2
    In other words, the rule
    should read:
    Identify, in conformance with procedures prescribed by
    the Director, the types and concentrations of organic
    compounds listed in
    35
    Ill.
    Adm. Code 721.Appendix H,
    that are emitted when burning hazardous waste;
    The second problem is that the rule does not provide a
    procedural context in which the Director would “prescribe”—
    procedures.
    This is part of the alternative hydrocarbon limit
    showing discussed below in connection with Section
    726.204(f) (3) (C) (i).
    Consistent with the discussion below,
    the
    Board believes that the Director is supposed to “prescribe” the
    conditions when he appr~ovesthe trial burn plan under 40 CFR
    270.66(d)
    Section
    703.232(d).
    The Board has therefore worded
    this to reference that subsection.
    The language of Section
    703.208(b) (4) (B)
    is as follows:
    Identify,
    in conformance with Section 703.232(d),
    the
    types and concentrations of organic compounds listed in
    35 Ill. Adm. Code 721.Appendix H that are emitted when
    burning hazardous waste;
    Section 703.210
    (Not Amended)
    This Section is drawn from 40 CFR 270.24, which was amended
    at 56 Fed. Reg.
    19290, April
    26,
    1991.
    The Board made this
    correction to the process vent rules in R91—1.
    Section 703.211
    This Section is drawn from 40 CFR 270.25, which was amended
    at 56 Fed. Reg. 19290, April 26,
    1991.
    This is another
    2If the “in conformance” clause modifies “burning”, then the
    rule
    would
    leave
    it
    to
    the
    Director
    to
    specify
    all
    of
    the
    requirements for burning hazardous waste.
    This would contradict
    Part 266
    726
    which specifies these.
    At the State level, it would
    be an unacceptable
    subdelegation
    of
    the
    Board’s duty
    to
    adopt
    environmental control standards under Section
    5 of the Act.
    132—181
    16
    correction to the process vent rules adopted in R91—1.
    Item 18
    in the correction is directed~to40 CFR 270.25(e)(2).
    However,
    there appears to be no such subsection.
    The Board believes that
    this correction is directed to 40 CFR 270.25(d)(2).
    The Board
    made the correction at the corresponding Section 703.211(d) (2).
    Section 703.232
    This Section is drawn from 40CFR 270.66, which was added at
    56 Fed. Req. 7206, February 21,
    1991, with the BIF rules.
    This
    Section ‘was also corrected at 56 Fed. Reg.
    32688, July 17,
    1991.
    This new Section appears in the portion of the USEPA and Board
    rules which governs “short term and phased permits”.
    The
    operator of a BIF gets a succession of permits which allow trial
    burns to establish conditions for the Part B
    RCRA
    permit.
    40 CFR 270.66(d) (3)
    703.232(d)
    (3)
    requires the operator to
    submit the results of the trial burn to the State Director
    “within 90 days of completion of the trial burn,
    or later if
    approved by the Director”.
    This poses a potential problem as to
    whether this is a “waiver” of a Board rule which would require
    some form of Board action, as is discussed in the general
    introduction to this Opinion.
    However, as the Board.construes
    t-he USEPA rule,
    it is specifying a condition in the trial burn
    plan, along with a provision allowing the Agency to specIfy a
    different length of time.
    So construed, the provision falls
    squarely into the Agency’s permit issuance authority.
    The Board
    has modified the text of the USEPA rule to make this
    interpretation clear.
    The text of Section 703.232(d) (3)
    reads as
    follows:
    The applicant snall submit to the Agency a
    certification that the trial burn has been carried out
    in accordance with the approved trial burn plan,
    and
    submit the results of all the determinations required
    in subsection
    (c).
    The Agency shall,
    in the trial burn
    plan,
    require that the submission be made within 90
    days after completion of the trial burn,
    or later,
    if
    the Agency determines that a later date is acceptable.
    Section 703.280
    This Section is drawn from 40 CFR 270.42, which was amended
    at 56 Fed.
    Req. 7206, and corrected at 56 Fed. Req.
    32688, July
    17,
    1991.
    This Section deals with permit modification at the
    request of the permittee.
    The amendments are a part of the BIF
    rules,
    and hence deal with permit modification for persons who
    already have a RCRA permit, and also have a BIF, which now needs
    to be added to the permit.
    These persons are authorized to
    continue operating the BIF if they submit a permit modification
    request within 180 days after the effective date of the new
    132—182
    17
    rules.
    40 CFR 270.42(g)(1)(iv)
    703.280(g)(1)(D)
    is the provision
    which requires the modification application.
    There are three
    minor problems with its wording.
    As corrected,
    40 CFR
    270.42(g) (1) (iv) reads as follows:
    The
    permittee is authorized if...
    The permittee also
    submits a complete Class
    2 or 3 modification request
    within 180 days of the
    effective date
    of the rule
    listing or identifying the waste,
    or subjecting the
    unit to RCRA Subtitle C management standards;
    The first problem is the “within 180 days of”.
    This clearly
    means “after”, the language the Board used in originally adopting
    the equivalent of this Section.
    The second problem is, when is the “effective date”?
    The
    Board has adopted the verbatim USEPA text.
    However,
    at the State
    level, this will mean “within 180 days after the effective date
    of the Board rule”.
    The Board solicited comment as to whether
    USEPA wanted the Board to use the earlier federal effective date,
    but received no written response.
    The third problem ±Cthe reference to “RCRA Subtitle C
    management standards”.
    At the State level, this probably would
    be an incorporation by reference.3
    Rather than deal with the
    problems of making this type of reference,
    the Board has cited to
    the “RCRA management standards” as embodied in the State rules.
    This appears to be Parts 724,
    725 and 726.
    As adopted by the Board,
    Section 703.280(g) (1) (D)
    reads as
    follows
    (with striking and underlining relating to the existing
    Board rule):
    In thc cuoc of Cla33c3
    2 and 3 modifioation~i,tlhe
    permittee also submits a complete permit class
    2 or
    3
    modification request within 180 days after the
    effective date of the rule listing or identifying the
    waste,
    or subiectinci the unit to management standards
    under 35 Ill. Adm. Code 724,
    725 or 726
    Section 703.283
    This Section is drawn from 40 CFR 270.42(c), whicn was
    corrected at 56 Fed. Req.
    32688, July 17,
    1991.
    This is also
    connected with the BIF amendments and correction.
    This
    3lndeed, the USEPA rule needs a definition of “RCRA Subtitle
    C management standards”.
    As written, this could be construed to
    mean the adoption of statutory changes by Congress.
    132—183
    18
    subsection was only amended in connection with the corrections.
    The change to 40 CFR 270.42(c)(1)(iv)
    703.283(a)(4)
    is
    rather simple, with striking and underlining shown vis-a-vis the
    1990 Edition of the CFR:
    Provides the applicable information required by 40 CFR
    270.13 through 270.2+2Z, 270.62~an4 270.63. and
    270.66.
    However, this becomes rather more complex at the State level,
    since smaller Sections are used.
    The following is a
    correspondence table for the Sections cited:
    40 CFR 270.
    35 IAC
    703.
    270.13
    703.181
    270.14
    703.182
    —
    703.187
    270.15
    703.201
    270.16
    703.202
    270.17
    703.203
    270.18
    703.204
    270.19
    703.205
    270.20
    703.206
    270.21
    703.207
    270.22
    703.208
    270.23
    703.209
    270.62
    703.222
    —
    703.225
    270.63
    703.230
    270.66
    270.232
    The equivalent Board amendment reads
    as
    follows:
    Provides the applicable information required by Section
    703.181 through 703.185703.187, 703.201 through
    703.207703.209, 703.221 through 703.225~and 703.230
    and 703.232.
    Appendix A
    132—184
    19
    This Section is drawn from 40 CFR 270, Appendix I, which was
    amended at 56 Fed. Reg.
    7206, .and corrected at 56 Fed. Req.
    32688, July 17,
    1991.
    This Appendix lists types of permit
    modifications, and assigns them to Classes, which determines the
    procedures needed for that type of modification.
    The amendment
    assigns various BIF—related modifications to Classes.
    The amendments address heading “L.”,
    at the end of the
    Appendix.
    Items L.5.b and c are omitted from the Federal
    Register publication.
    However, the dots appear to mean that they
    are retained without change.
    PART 720:
    GENERAL PROVISIONS
    Part 720 includes the definitions and incorporations by
    reference for the standards of Parts 721 through 728.
    Section 720.110
    Definitions
    This Section was amended at 56 Fed. Req.
    7206, February 21,
    1991.
    It adds new definitions related to the new BIF rules.
    New
    definitions include:
    “carbon regeneration unit”,
    “infrared
    incinerator”, “plasma arc incinerator” and “sludge dryer”.
    The
    existing definitions of “incinerator” and “industrial furnace”
    are amended.
    Two
    of the USEPA definitions have subdivisions.
    These are
    not allowed under Code Division rules.
    Rather, the subdivisions
    must be presented as unnumbered blocks, with subordination
    indicated by the levels of subdivision.
    The new definition of “incinerator” is extraordinarily
    complex, but appears to make sense as written.
    The USEPA
    definition reads as follows:
    “Incinerator” means any enclosed device that:
    1)
    Uses controlled flame combustion and neither meets
    the criteria for classification as a boiler,
    sludge dryer or carbon regeneration unit, nor is
    listed as an industrial furnace;
    or
    2)
    Meets the definition of infrared incinerator or
    plasma arc incinerator.
    This would be easier to state if paragraphs
    (1) and
    (2) were
    reversed, placing the catch—all and exclusions at the end.
    In
    other words, an “incinerator” is an “infrared incinerator”,
    a
    “plasma arc incinerator”, or some other type of device which uses
    “controlled flame combustion”, other than a “boiler”, “dryer”,
    etc.
    132—185
    20
    Rather than rewrite the definition, the Board broken out
    paragraph
    (1)
    for greater clarity.
    As presented in the Code
    Division format, the definition reads as follows:
    “Incinerator” means any enclosed device that:
    Uses controlled flame combustion and neither:
    Meets the criteria for classification as a
    boiler, sludge dryer or carbon regeneration
    unit,
    nor
    Is listed as an industrial furnace;
    or
    Meets the definition of infrared incinerator or
    plasma arc incinerator.
    Within the definition of “industrial furnace”,
    a new
    specific type has been added, the “halogen acid furnace”.
    These
    are used in chemical production facilities to produce,
    for
    example, hydrochloric acid from a chlorinated organic waste.
    The definitions of “infrared incinerator” and “plasma arc
    incinerator” have similar, minor grammatical problems.
    The Board
    has reworded these so they take the form of “X’ means A which is
    B and which is C”.
    As adopted,
    these definitions read as
    follows:
    “Infrared incinerator” means any enclosed device which
    uses electric powered resistance heaters as a source Of
    radiant heat and which is not listed as an industrial
    furnace.
    “Plasma arc incinerator” means any enclosed device
    which uses a high intensity electrical discharge or arc
    as a source of heat and which is not listed as an
    industrial furnace.
    The new definition of “sludge dryer” appears to have a minor
    substantive error.
    The definition specifies
    a sludge dryer is a
    device which “has a maximum total thermal input
    ...
    of 2500
    Btu/lb...”
    This probably would be better stated as “has a
    maximum total thermal input
    ...
    of 2500 Btu/lb or less...”
    (As
    worded, the USEPA seems to say that the rated maximum of the
    dryer has to be exactly 2500 Btu/lb.)
    The Board has worded this
    definition as follows:
    “Sludge dryer” means any enclosed thermal treatment
    device which is used to dehydrate sludge and which has
    a total thermal input, excluding the heating value of
    the sludge itself, of 2500 Btu/lb or less of sludge
    treated on a wet weight basis.
    132— 186
    21
    Section 720.111
    Incorporations by Reference
    This Section was amended at 56 Fed. Req. 7206, February 21,
    1991.
    The amendment adds a reference to “Screening Procedures
    for Estimating the Air Quality Impact of Stationary Sources”,
    available from NTIS.
    In addition, as is discussed below in
    connection with Section 726.Appendix I and J, two other documents
    were referenced into 40 CFR 266, but not added to the table in 40
    CFR 260.11.
    The three added references are as follows:
    “Guidance on Air Quality Models”, Revised 1986
    (Document number PB86-245—248
    (Guideline) and
    PB88—150—958
    (Supplement)).
    “Methods Manual for Compliance with BIF
    Regulations”, December,
    1990.
    (Document number
    PB91—120—006)
    “Screening Procedures for Estimating the Air
    Quality Impact of Stationary Sources”, August,
    1988 (Document number PB89—159396).
    As is discussed in connection with Section 726.200(g),
    the
    Board has added a definition for “SSU”,
    a unit of measure for
    viscosity.
    This is measured by two ASTM Methods
    (PC 6), which
    the Board has added to this Section:
    ASTM D88-87, Standard Test Method for Saybolt
    Viscosity, April 24,
    1981, reapproved
    January,
    1987.
    ASTM D2161-87, Standard Practice for Conversion of
    Kinematic Viscosity to Saybolt Universal or to
    Saybolt Furol Viscosity, March 27,
    1987.
    PC 6 recommended ASTM D445 and D2161.
    However, D88 appears
    to be more generally applicable than D445.
    In addition, as
    is discussed below in connection with
    Section 726.200(g), USEPA references 40 CFR 51.100(u)
    for the
    definition of “good engineering practice stack height”.
    This has
    to be treated as an incorporation by reference at the State
    level.
    The Board has also updated all other routine references to
    the Code of Federal Regulations to reflect the 1991 Edition,
    which includes rules adopted by USEPA through June 30,
    1991.
    PART 721:
    DEFINITION OF HAZARDOUS WASTE
    This Part is the definition of “solid waste” and “hazardous
    waste”.
    It defines the scope of the program so far as subject
    132—187
    22
    matter is concerned.
    Section 721.102
    “Solid Waste”
    This Section was amended at 56 Fed. Req.
    7206, February 21,
    1991.
    This adds a new subsection
    (d)(2), which includes in the
    definition of “inherently waste—like materials”,
    secondary
    materials, which are listed or characteristic hazardous waste,
    and which are fed to a “halogen acid furnace”, which is defined
    above.
    This Section was corrected in the BIF corrections discussed
    mainly in connection with Part 726.
    In the July 17,
    1991
    correction, the instructions for the addition of new subsection
    (d) (2) were revised.
    However, it is not clear what was changed.
    In the August 27,
    1991 BIF corrections, 40 CFR
    261.2(d) (2) (i)
    —
    (iii)
    721.i102(d)(2)(A)
    —
    (C)
    were added.
    This
    is a new exclusion for certain brominated wastes which are the
    subject of an internal recycle to a halogen acid furnace.
    Section 721.103
    “Hazardous Waste”
    This Section was amended at 56 Fed. Req.
    3876,
    January 31,
    1991, the “thirdthird” corrections.
    In addition, the Section
    was corrected in connection with the BIF rules
    in both the July
    17 and August 27,
    1991, corrections.
    There was no amendment to this Section in connection with
    the original BIF rules on February 21,
    1991.
    However,
    a cross
    reference in 40 CFR.261.3(c) (2) (ii) (B) was corrected and
    recorrected in the corrections.
    The cross reference appears at
    Section 721.103(c) (2) (B) (ii), as follows:
    The
    following solid wastes are not hazardous...
    Wastes from burning any of the materials exempted from
    regulation by Section 721.106(a)(3)(E),
    (F),
    (G)T ~
    (H)
    or
    (I-)-.
    The main amendment was adopted by USEPA in connection with
    the third third corrections.
    It adds a proviso to Section
    721.103(d)(1).
    Characteristic hazardous wastes generally are
    removed from the regulatory definition if the hazardous
    characteristic is removed.
    However, under the amendment,
    such
    wastes may still be subject to the land disposal restrictions in
    Part 728.
    As discussed in general above, the Board has expanded the
    scope of this update to include USEPA amendments addressing the
    high zinc subcateqory of K061.
    These adopted at 56 Fed. Req.
    41176, August 19,
    1991.
    (PC 1,
    2)
    This, includes the addition of
    40 CFR 261.3(c)(2)(ii)(C)
    721.103(c)(2)(B)(iii),
    a rather
    132—188
    23
    lengthy subsection which establishes a new exclusion from the
    definition of “hazardous waste” for certain residues from “high
    temperature metals recovery”
    (“HTNR”)
    of hazardous waste.
    There
    are
    a
    number of minor editorial problems with this subsection.
    The USEPA rule includes
    a
    cross reference to “industrial
    furnaces
    (as defined in 40 CFR 260.10
    (6),
    (7), and (12))”.
    This
    appears to be referring to subsections within the definition of
    “industrial furnace”.
    As is discussed above in connection with
    Section ,720.110, the Administrative Code does not allow this type
    of numbering with definitions.
    It is therefore necessary to find
    a way to reference the appropriate types of industrial furnace,
    without relying on the numbers.
    The Board has adopted the rule
    based on inclusion of the following types of furnaces:
    6)
    Blast furnaces
    7)
    Smelting, melting and refining furnaces
    (including
    pyrometallurgical devices such as cupolas,
    reverberator furnaces, sintering machines,
    roasters and foundry furnaces)
    12)
    Other furnaces designated by the Agency on the
    basis of factors listed in the definition of
    “industrial furnace” in 35 Ill. Adm. Code 720.110.
    Item (12)
    in the current version of the CFR actually
    corresponds with “halogen acid furnaces”
    (“HAFs”), defined in
    Section 720.110.
    It would not make sense to include this type of
    furnace in the HTMR rules.
    The Board therefore assumes that this
    cross reference is in error, and that USEPA intends to reference
    the “catch-all”, which is now actually paragraph
    (13)
    in the
    definition.
    With the inclusion of the list of types of “industrial
    furnace”, the first sentence of the USEPA rule becomes too
    complex to understand.
    The Board has~therefore separated the
    types of units into
    a separate sentence, which is worded as
    follows
    721.103(c)
    (2) (B) (iii):
    The types of units are:
    rotary kilns, flame reactors~
    electric furnaces, plasma arc furnaces, slag reactors,
    rotary hearth furnace/electric furnace combinations or
    the following types of industrial furnaces
    (as defined
    in 35
    Ill.. Adm. Code 720.110):
    blast furnaces;
    smelting, melting and refining furnaces (including
    pyrometallurgical devices such as cupolas, reverberator
    furnaces, sintering machines, roasters and foundry
    furnaces); and other furnaces designated by the Agency
    pursuant to that definition.
    The next editorial problem is the references to “Subtitle D
    132—189
    24
    units”.
    This apparently refers to Subtitle D of the federal RCR~
    Act, which governs non—hazardous,waste facilities.
    At the State
    level, this might be an incorporation by reference of a federal
    statute.
    It is not clear how this should be handled under the
    Administrative Procedure Act.
    The Board has used the term “non—
    hazardous waste unit”,
    i.e., a unit other than a “hazardous waste
    management unit”.
    40 CFR 261.3(c) (2)
    (ii) (C) also requires that:
    Alt
    a minimum, composite samples of residues must be
    collected and analyzed quarterly
    and/or when the
    process or operation generating the waste changes.
    As is discussed in general above, the Administrative Code does
    not allow “and/or”.
    Usually “and/or” means the same thing as
    “or”.
    However,
    in this context,
    “or” would appear to give the
    operator the choice of sampling either quarterly, or just at
    process changes.
    The USEPA rule probably means “and”,
    the word
    the Board has used in
    Section 721.103(c)(2)(B)(iii).
    In other
    words,
    the operator has to take both quarterly samples, and
    additional samples to document process changes.
    40 CFR 261.3(c) (2) (ii) (C)
    requires:
    For each shipment of K061
    HTMR
    residues sent to a
    Subtitle D unit that meets the generic exclusion levels
    for all constituents, and does not exhibit any
    characteristic,
    a notification and certification must
    be sent to...
    This has some missing commas, extra commas, and misplaced
    modifiers.
    It would be better stated as follows:
    For each shipment, sent to a
    Subtitle
    D unit, of K061
    HTMR residues that meets the generic exclusion levels
    for all constituents and does not exhibit any
    characteristic,
    a notification and certification must
    be sent to...
    There is, however, a deeper problem with this provision.
    As
    worded,
    it requires the notice and certification only for
    shipments meeting the requirements.
    This could be construed as
    exempting the non—conforming shipments from the rule.
    The Board
    does not believe this is USEPA’S intent.
    Rather, the repetition
    of the requirements is mere surplusage, which the Board has
    deleted.
    So worded,
    it’s clear that the notice and certification
    have to be given for all shipments of this waste:
    For each shipment of K061
    HTMR
    residues sent to a
    nonhazardous waste management unit,
    a notification and
    certification must be sent to...
    132—190
    25
    40. CFR 261.3(c) (2) (ii) (C) requires the notification and
    certification to be sent for each shipment:
    T)o
    the appropriate EPA Regional Administrator
    (or
    delegated representative)
    ~r State authorized to
    implement part 268 requirements.
    The Board believes that this is intended to require a notice
    to the appropriate authority in the state receiving the waste.
    The Board has adopted the following language:
    To
    the Agency
    (or,
    for out-of-State shipments, to the
    appropriate Regional Administrator of USEPA or state
    agency authorized to implement 40 CFR 268
    requirements).
    The notification requirements include numbered
    subparagraphs.
    However, the Administrative Code does not allow
    subparagraphs beyond the fourth level
    (at which this complex rule
    started).
    These have therefore collapsed into a block.
    Bringing this all together,
    the
    Board has adopted the
    following equivalent for 40 CFR 261.3(c) (2) (ii) (C)
    721.103(c)
    (2) (B) (iii):
    The
    following solid wastes are not hazardous
    ...
    unless
    they exhibit
    ...
    characteristics
    ...:
    iii) Nonwastewater residues, such as slag, resulting
    from high temperature metal recovery
    (HTMR)
    processing of K061 waste, in units identified
    below, that are disposed of in non—hazardous waste
    units, provided that these residues meet the
    generic exclusion levels identified below for all
    constituents, and exhibit no characteristics of
    hazardous waste.
    The types of units are:
    rotary
    kilns, flame reactors, electric furnaces, plasma
    arc furnaces, slag reactors, rotary hearth
    furnace/electric ‘furnace combinations or the
    following types of industrial furnaces
    (as defined
    in 35 Ill.
    Adm.
    Code 720.110):
    blast furnaces,
    smelting, melting and refining furnaces (including
    pyrometallurgical devices such as cupolas,
    reverberator furnaces, sintering machines,
    roasters and foundry furnaces), and other furnaces
    designated by the Agency pursuant to that
    definition.
    Testing requirements must be
    incorporated in a facility’s waste analysis plan
    or a generator’s self—implementing waste analysis
    plan;
    at a minimum; composite samples of residues
    must be collected and analyzed quarterly and when
    the process or operation generating the waste
    132—19 1
    26
    changes.
    The generic exclusion levels are:
    Constituent
    Maximum for any single
    composite sample
    (mq/L)
    Antimony
    .
    .
    .
    .
    0.063
    Arsenic
    .
    .
    .
    .
    .
    0.056
    Barium
    .
    .
    .
    .
    .
    6.3
    Beryllium
    .
    .
    .
    .
    0.0063
    Cadmium
    0.032
    Chromium
    (total)
    0.33
    Lead
    0.095
    Mercury
    0.009
    Nickel
    0.63
    Selenium
    .
    .
    .
    .
    0.16
    Silver
    0.30
    Thallium
    .
    .
    .
    .
    0.013
    Vanadium
    .
    .
    .
    .
    1.26
    For each shipment of K061
    HTMR
    residues sent to a
    nonhazardous waste management unit,
    a notification
    and certification must be sent to the Agency
    (or,
    for out-of-State shipments, to the appropriate
    Regional Administrator of USEPA or state agency
    authorized
    to~
    implement ‘40 CFR. 268 requirements).
    The notification must include the following
    information:
    The name and address of the
    nonhazardous waste management unit receiving the
    waste shipment;
    The USEPA hazardous waste number
    and treatability group at the initial point of
    generation;
    The treatment standards applicable to
    the waste at the initial point of generation.
    The
    certification must be signed by an authorized
    representative and must state as follows:
    “I certify under penalty of law that the generic
    exclusion levels for all constituents have been
    met without impermissible dilution and that no
    characteristic of hazardous waste is exhibited.
    am aware that there are significant penalties for
    submitting a false certification, including the
    possibility of fine and imprisonment.”
    Section 721.104
    Exclusions
    This Section contains a list of specific exclusions from the
    definition of “hazardous waste”.
    It was amended five times
    during the update period, at 56 Fed.. Reg.
    3978, 5915,
    7206,
    13411
    and 27318, and again after the update period.
    Section 721.104(a) (10) was amended at 56 Fed. Reg. 7206,
    in
    connection with
    the
    BIF rules.
    This excludes from the definition
    132—192
    27
    of “solid waste” and “hazardous waste”, coke and coal tar from
    the iron and steel industry, which is produced from “decanter
    tank car sludge”, K087.
    40 CFR 261.4(a)(11)
    Section
    721.104(a) (11)
    was added in
    connection with the amendments concerning the high zinc
    subcategory of K06l,
    which is drawn from the August 19,
    1991
    Federal Register.
    (PC
    1,
    2)
    This provision excludes from the
    definition of “solid waste” and “hazardous waste”, certain K061
    HTMR
    residues,
    ~as
    follows:
    Nonwastewater splash condenser dross residue from the
    treatment of K061 in high temperature metals recovery
    units, provided it is shipped in drums
    (if shipped) and
    not land disposed before recovery.
    Section 721.104(b) (4),
    (7)
    and
    (8) were also amended in
    connection with the BIF rules.
    These add cross references to new
    Section 726.212 for the following types of excluded wastes:
    fly
    ash,
    mining wastes and cement kiln dust.
    Facilities operating
    under these exclusions are potentially subject to these new
    rules.
    Section 721.104(b) (7) was also amended at 56 Fed.
    Reg.
    27318, June
    13’,
    1991, which specifically addressed the mining
    waste exclusion,
    which was a major topic in the R91—1 Opinion.
    The only change to the text of the rule appears to.be a shift
    from “will include” to “includes” in the introductory language to
    the list of “processing” operations.
    The Board has made this
    change.
    However,
    a 12 page “Appendix” appears after the text
    of
    the regulatory language in the Federal Register.
    The “Appendix”
    is prefaced with a note that it “will not appear in the Code of
    Federal Regulations”.
    The Board re’quested comment as to whether
    it ought to add a “Board Note” to Section 721.104(b) (7),
    referencing this “Appendix”,
    but received no response.
    The Board
    will therefore make no specific reference to this Appendix, which
    it takes to be a part of the USEPA preamble.
    Section 721.104(b) (11) was amended two times,
    at 56 Fed.
    Reg.
    3978,
    February 1,
    1991, and at 56 Fed. Req. 13411, April
    2,
    1991.
    These amendments both concern the applicability of the
    TCLP test, adopted in R90-10, to groundwater which is reinjected
    pursuant to petroleum recovery corrective action.
    As was discussed on p. 28 in the R91-1 Opinion, the TCLP
    test had the effect of bringing many petroleum recovery clean—up
    waters into the definition of “hazardous waste”, potentially
    subjecting UST clean-ups to additional regulatory requirements.
    During the “free phase recovery” portion of a groundwater
    cleanup, the operator is attempting to remove petroleum product
    which is essentially floating on the water table.
    Water
    is
    separated from the product on the surface.
    This water is
    132—193
    28
    saturated with petroleum product, and hence may fail the TCLP
    test.
    It would be possible to treat this water prior to
    reinjection.
    However, this would reduce the efficiency of the
    free product recovery, since additional free product would just
    be dissolved in the water, and become unrecoverable.
    After the
    free product recovery phase, the clean—up enters the groundwater
    clean—up phase,
    in which the dissolved product is removed.
    The February 1 action was an extension of the effective date
    of the temporary USEPA extension, to March 25,
    1991.
    The Board
    acted on this in R91-1, even though it was outside the normal
    scope of that update.
    The April
    2,
    1991, USEPA action extends the free product
    recovery exclusion to January 25,
    1993,
    subject to new
    limitations affecting the scope of the exclusion.
    The Board has
    adopted the USEPA extension.
    One of the new limitations is that the clean-up has to be
    conducted pursuant to a “written state agreement”, a copy of
    which has to be filed with USEPA.
    This poses two minor problems
    in implementing the rules:
    identifying the “state agreement”
    with reference to Illinois law, and whether the agreement needs
    to be separately filed with the Agency.
    In the UST program proper, the “agreement” would appear to
    be the “free product recovery report” under Section 731.164.
    However, the exclusion appears to extend also to releases from
    above—ground tanks at refineries.
    The Board requested comment as
    to the identity of the agreement in such a case.
    Furthermore,
    the Board requested.comment as to whether the Agency needs a
    second copy of the agreement filed with it.
    The Board received
    no response.
    The Board has limited the “written agreement” to the “free
    product removal report” under the UST rules.
    A copy of the
    report will have to be sent to USEPA.
    The Agency will already
    have a copy under the UST rules, and will not need a second copy.
    This resolution of the problem will mean that the free
    product recovery exclusion will not extend to injected
    groundwater from free product recovery at above—ground tanks at
    petroleum refineries, terminals and bulk plants.
    The Board will
    consider adding them to this exclusion if it receives, during the
    post—adoption comment period, information as to the nature of the
    “written agreement” used in Illinois for such clean—ups.
    Technically the Board’s rules will have been without the
    free product recovery exclusion since March 25.
    However, the
    Board views short—term USEPA extensions of this sort as
    automatically operative in Illinois pending Board action on the
    extension.
    132—194
    29
    The final USEPA amendment to this Section is the addition of
    Section 721.104(b) (12), at 56 Fed. Req.
    5915, February 13,
    1991.
    This excludes used chlorofluorocarbon
    (CFC)
    refrigerants from the
    definition of “hazardous waste” provided they are reclaimed.
    Some CFC5 may be hazardous waste under the new TCLP test (R90-10)
    because of traces of regulated constituents, such as carbon
    tetrachloride.
    CFC refrigerant recycling does not pose any
    significant hazard to groundwater, the primary focus of the
    hazardous waste regulations.
    However,
    if the CFC refrigerant
    recyclii~gindustry is brought into the hazardous waste program,
    operators will probably vent the CFCs to the atmosphere,
    rather
    than comply with the paperwork requirements associated with
    hazardous waste.
    This would contribute to upper—atmosphere ozone
    depletion.
    USEPA has -therefore excluded CFC refrigerant
    recycling.
    The USEPA rule has a minor typo which the Board has
    corrected.
    This involves the insertion of a comma following the
    list
    of
    equipment.
    Section 721.106
    Requirements for Recyclable Materials
    This Section was amended at 56 Fed.
    Req.
    7206, February 21,
    1991,
    in connection with the BIF rules.
    The Section was also
    corrected in the July 1~?, 1991,
    correction to the BIF rules.
    Section 721.106(a) (3) (G) has been deleted,
    and subsequent
    subsections
    renumbered.
    This
    removes
    coke
    and
    coal
    tar
    from
    the
    materials
    which
    are
    excluded
    from
    the
    definition
    of
    “hazardous
    waste”,
    based on recycling.
    This has been replaced with the more
    limited
    exclusion
    in
    Section
    721.104(a)
    (10),
    discussed
    above.
    The
    July
    17,
    1991,
    correction
    concerns
    a
    cross—references
    in
    40 CFR 261.6(a)(2)
    and (a)(2)(ii)
    721.106(a)(2)
    and (a)(2)(B)).
    These add references to new Subpart H in Part 266 726.
    Section 721.120
    Hazardous Characteristics in General
    This Section was amended at 56 Fed. Reg.
    3876, January 31,
    1991, the “third third” correction.
    The Board apparently made
    the correction in R90—11.
    However, there appears to be an
    additional error in the USEPA, and Board, rule which ought to
    have been corrected in connection with the incineration rules
    (February
    21,
    1991).
    This
    Section
    should
    also
    cite
    to
    Part
    726.
    The Board has made this correction.
    Section
    721.131
    Listed
    waste
    from
    Nonspecific
    Sources
    This
    Section
    was
    amended
    in
    three
    USEPA
    actions,
    at
    56
    Fed.
    Req.
    3877,
    21958
    and
    27336.
    The
    amendments
    at
    56
    Fed.
    Req.
    27336,
    June
    13,
    1991,
    concern
    132—195
    30
    F032,
    F034 and F035.
    This is the “administrative stay” of the
    wood preserving rules.
    The Board acted on this stay in R91-1,
    even though it was outside the normal scope of that update.
    On
    January
    9,
    1992,
    in R91-26, the Board also extended some of the
    compliance dates associated with this stay.
    In the proposed
    Order, the Board used the pre-R91-26 text as the base text, but
    showed the R91-26 changes.
    The base text now has to be
    reformatted to show the R91-26 text as the base text.
    The
    basically involves clearing the striking and underlining involved
    in R91—26.
    The amendments at 56 Fed. Req.
    21958, May 13,
    1991, concern
    F037 and F038, petroleum refinery oil/water/solids separation
    sludges.
    The Board adopted these listings in R91-1.
    The
    amendments add to the lists of what is excluded from the
    listings.
    The new exclusion is solids separated from certain
    non—contact cooling waters.
    The F037 and F038 listings appear to have two minor typos.
    In F037, USEPA appears to have changed a “sludges” to a “sludge”
    for no apparent reason.
    In F038,
    the USEPA rule has a series
    which reads
    “X,
    Y and Z and B,
    C, and D”, which the Board has
    shortened to “X,
    Y,
    Z,
    B,
    C and D”.
    USEPA amended the F039 listing at 56 Fed. Req.
    3876, January
    31,
    1991, the third third corrections.
    F039
    is leachate from
    disposal of mixed hazardous wastes.
    The amendments appear to be
    a refinement of the definition of this listing.
    Section 721.132
    Listed Wastes from Specific Sources
    Listing K069 was amended at 56 Fed. Reg.
    19952, May 1,
    1991.
    This is an administrative stay of the listing of emission control
    dust and sludge from secondary lead smelting.
    This appears to be
    closely related to the issues concerning K066, which were
    discussed at length in R91-1.
    The Board has adopted the language
    of the USEPA stay.
    The K069 listing appears to be a “non—HSWA” regulation4,
    which has already been adopted by Illinois, and which is a part
    of Illinois’ authorized program.
    As such, the USEPA regulation
    and stay do not apply directly in Illinois.
    However, the
    Illinois “identical in substance” mandate requires the Board to
    adopt the USEPA stay within one year.
    4A “HSWA” regulation is one which USEPA was required to adopt
    pursuant to the 1986 HSWA Amendments to the RCRA Act.
    Such rules
    are
    immediately
    effective
    as
    federal
    law,
    even
    in
    authorized
    States.
    “Non-HSWA” rules are.other USEPA RCRA rules.
    They are not
    effective in authorized states, such as Illinois,
    until the state
    adopts them.
    132—196
    31
    The USEPA stay provides5 that:
    This listing is stayed administratively for sludge
    generated from secondary acid scrubber systems.
    The
    stay will remain in effect until further administrative
    action is taken.
    If EPA takes further action effecting
    (sic)
    this stay, EPA will publish a notice of the
    action in the Federal Register.
    Thq wording of this provision is somewhat different than the
    wording of the notes to the wood preserving listings in F032
    -
    F035, which were addressed above and in R91-1, and which caused
    problems for Board implementation.
    In this stay, USEPA is
    specific that a further regulatory action would be required to
    remove the stay,
    as opposed to an internal “administrative
    action”.
    Since a regulatory action will be taken,
    it is clear
    that the Board will be able to remove the stay by a normal
    regulatory action pursuant to Sections 7.2 and 22.4(a) of the
    Act.
    Accordingly, the Board has provided that the stay will
    continue until the note is removed.
    The complete language is as
    follows:
    BOARD NOTE:
    This listing is administratively stayed
    for sludge generated from secondary acid scrubber
    systems.
    The stay will remain in effect until this
    note is removed.
    An
    alternative formulation would provide that the stay would
    continue only until USEPA removed the note from the federal rule,
    and would deem the federal action to apply in Illinois until the
    Board took action.
    The Board requested comment on this
    alternative,
    but, received no response.
    Section 721.133
    (Not Amended)
    USEPA amended 40 CFR 261.33, and Appendix VIII (Section
    721.133 and Appendix H)
    at 56 Fed. Req.
    7568, February 25,
    1991.
    This removed strontium sulfide from the listed wastes
    (P107), and
    as a hazardous constituent.
    This corrects a USEPA action at 53
    Fed. Req.
    43881, October 31,
    1988, which failed to remove the
    listing because of an error in the notice.
    This requires no
    action, since the Board successfully removed this list’ing in R89-
    1.
    5Although the USEPA stay language is written in general terms,
    USEPA discusses it as though it were
    a site—specific stay for a
    facility in Pennsylvania
    (56 Fed. Req.
    19951)
    -
    As is discussed in
    the
    general
    introduction to this Opinion,
    the Board ordinarily
    adopts
    only
    rules
    which
    are
    applicable
    in
    Illinois
    Section
    7.2(a)(1) of the Act.
    Here the Board is following the language of
    the USEPA rule, rather than the discussion.
    132—197
    32
    Appendix I
    Site Specific Delistinqs
    USEPA amended 40 CFR 261, Appendix IX, at 56 Fed. Req.
    19586.
    This is a site-specific delistinq for USX in Chicago and
    Gary,
    IN.
    As provided in Section 720.122(m) et seq.,
    as amended
    in R90-l7, the Board does not adopt such site-specific rules
    unless and until someone files a petition showing that the rule
    needs to be adopted as a part of the Illinois program.
    This
    delisting was adopted by the Board in R91-12.
    On February 6,
    1992, the Board adopted the first adjusted
    standard delisting,
    on the petition of Keystone’Steel,
    in AS91-1.
    The Board has added to this Appendix a listing of site-specific
    adjusted standards delistings,
    of which this is the first entry.
    PART 722:
    GENERATOR
    STANDARDS
    This Part includes the standards which are applicable to
    generators of hazardous waste.
    Section 722.110
    This Section is drawn from 40 CFR 262.10, which was amended
    at 56 Fed. Reg.
    3876, January 31,
    1991, the third third
    corrections.
    The amendment adds a reference to Part 268
    728
    to
    “Note .2” following 40 CFR 262.10(f).
    The Administrative Code prohibits multiple “Notes” such as
    are used in the CFR.
    Therefore,
    in the Board rules,
    “Note 1”
    appears after Section 722.110(f), and “Note 2” after SectiOn
    722.110(e).
    This makes it difficult to compare the Board and
    USEPA text.
    The Board has therefore moved the text of “Note 2”
    down so it follows “Note 1”.
    However, these have to appear as a
    single “Note”.
    The amendment appears in the underlined portion
    of the Note following Section 722.110(f).
    Section 722.111
    Not Amended
    This Section is drawn from 40 CFR 262.11, which was amended
    at 56 Fed. Req.
    3876, January 31,
    1991, the third third
    corrections.
    The Board made this correction in R91—1.
    Section 722.134
    This Section is drawn from 40 CFR 262.34, which was amended
    at 56 Fed. Req.
    3876, January 31,
    1991,
    the third third
    corrections..
    The correction adds to Section 722.134(d) (4)
    a
    reference to Section 728.107(a) (4).
    The USEPA language includes a ‘series of the form “A,
    B,
    C”.
    USEPA clearly intends that these be connected with an “and”,
    which the Board has inserted.
    Moreover, the USEPA rule is worded
    132—198
    33
    as “complies with the requirements of A, the requirements of B,
    and
    the requirements of C”.
    The Board has shortened this by
    consolidating the multiple “requirements”.
    The Board’s, language
    is as follows:
    The generator complies with the requirements of
    subsections
    (a) (2) and
    .fa~-(3)~
    and the rcquircmcntc of
    35 Ill. Adm. Code 725.Subpart C and of 35 Ill.
    Adm.
    Code 728.107(a) (4)
    PART 724:
    STANDARDS FOR PERMITTED HWM FACILITIES
    This Part includes the standards for facilities which
    include a HWN (hazardous waste management)
    unit and which have a
    permit.
    Part 725 applies prior to permit issuance.
    Section 724.212
    This Section is drawn from 40 CFR 264.112, wnich was amended
    at 56 Fed. Req. 7206, February 21, 1991,
    the BIF rules.
    The
    amendment adds a sentence to Section 724.212(d)
    concerning
    closure of a BIF.
    The new language is as follows:
    The owner or operator shall notify the Agency in
    writing at least 4-sdays prior to the date on which the
    owner or operator expects to begin partial or final
    closure of a boiler or industrial furnace, whichever is
    earlier.
    The “whichever is earlier” apparently refers. to the “partial
    or final” closure option.
    Section 724.440
    This Section is drawn from 40 CFR 264.340, which was amended
    at 56 Fed. Req.
    7206, February 21,
    1991, the BIF rules.
    This
    Section is the introduction to the incinerator rules.
    The
    amendment affects Section 724.440(a).
    The text of the Board rule
    is as follows:
    The regulations in this Subpart apply to owners and
    operators of facilitico that incinerate ~hazardouswaste
    incinerators
    (as defined in 35 Ill. Adm. Code 720.110),
    except as Section 724.101 provides otherwise.
    ~e
    following facility
    owners
    and operators arc conoidered
    to incinerate hazardous waste:
    1)
    Ownero or operators ox nazgraous waste
    incinerators
    (as defined in 35 Ill.
    Adm.
    Code
    720.110); and
    2)
    Owners
    or operators who burn hazardous waste
    132— 199
    34
    in boilers or in industrial furnaces in order
    to destroy them,,
    or who burn hazardous waste
    in boilers or in industrial furnaces for any
    recycling purpose and elect
    t.
    to be regulated
    under this Cubpar
    The instructions in the Federal Register are ambiguous as to
    whether the second sentence and
    (a) (1) and
    (2) are to be
    repealed.
    The Board believes, however, that the repeal is
    consistent with the remainder of the BIF rules.
    The incinerator
    rules
    iz~iPart 724 now defer to the Part 720 definition of
    “incinerator” for their scope.
    “BIFs” are regulated under Part
    726, rather than Part 724.
    Section 724.672
    Not Amended
    This Section is drawn from 40 CFR 264.572, which was amended
    at 56 Fed. Req.
    27336, June 13,
    1991.
    This was the
    administrative stay of the wood preserving rules, which the Board
    adopted in R91-1.
    Section 724.930
    Process Vents
    This and the following Sections are drawn from 40 CFR
    264.1030,
    et seq.,
    whioh
    were amended at 56 Fed. Req.
    19290.
    This is the corrections to the process vent rules, which the
    Board adopted in R90-ll.
    The USEPA corrections came too late for
    the Board to consider them in R90—11.
    ‘However, the Board
    identified most of the errors, and corrected them on its own
    motion.
    In the following discussion, the Board will mention only
    the errors listed in the Federal Register which require
    correction in the Board rules.
    Section 724.930 et seq. are drawn from 40 CFR 264.1030 et
    seq.
    The numbering of these Sections does not follow the general
    scheme for translating Board and USEPA numbers.
    In these
    Sections, “264.lOxx” becomes “724.9xx”.
    In the introduction to Section 724.930(b),
    a cross reference
    has been changed as follows:
    “Sections 724.934(d)
    and
    724.935(e)”, such that the reference is now to subsections of the
    same Section.
    Section 724.935
    In Section 724.935(b) (4) (B), a comma has been inserted.
    PART 725:
    INTERIM STATUS
    STANDARDS
    FOR HWM FACILITIES
    This Part contains the standards for HWM units on facilities
    which do not have a permit.
    Standards for permitted facilities
    are in Part 724.
    Indeed, Parts 724 and 725 are identical in most
    132—200
    35
    respects.
    Section 725.113
    This Section is drawn from 40 CFR 265.13, which was amended
    at 56 Fed.
    Req.
    19290, April 26,
    1991.
    This Section, and most of
    the following Sections, are again the corrections to the process
    vent rules adopted in R90-11.
    The Board made most of these
    corrections independently in R90-11.
    Unless otherwise stated,
    the changes to this Part are from the process vent corrections.
    Only th6se corrections requiring a change in the Board rules will
    be discussed here.
    In Section 725.113(b) (6), a reference to “725.293” has been
    changed to “725.300”.
    Section 725.173
    In Section 725.273(b) (3), a reference to “725.293” has been
    changed to “725.300”.
    Section
    725.212
    This
    Section
    is
    drawn
    from
    40
    CFR
    265.112,
    which
    was
    amended
    at
    56
    Fed.
    Req.
    7206,
    February
    21,
    1991,
    and
    corrected
    at
    56
    Fed.
    Req.
    42511,
    August
    27,
    1991.
    This
    is
    the
    BIF
    rules
    and
    second
    correction.
    The
    first
    sentence
    of
    40
    CFR
    265.112(a)
    is
    amended
    as
    follows:
    By
    May
    19,
    1981,
    or
    by
    six
    months
    after
    the
    effective
    date
    of
    the
    rule
    that
    first
    subjects
    a
    facility
    to
    provisions
    of
    this
    Section,
    tThe
    owner
    or
    operator
    of
    a
    hazardous
    waste
    management
    facility
    must
    have
    a
    written
    closure
    plan.
    The
    immediate
    effect
    of
    this
    change
    is
    to
    require
    newly
    regulated
    BIF5
    to
    have
    a
    closure
    plan
    within
    six
    months
    after
    the
    effective
    date
    of
    the
    BIF
    rules.
    However,
    there
    are
    three
    possible
    problems.
    The, first
    problem
    stems
    from
    the
    general
    way
    in
    which
    the
    rule
    is
    stated.
    To
    the
    extent
    this
    is
    the
    proper
    place
    for
    the
    “six months after the effective date” provision,
    it appears to be
    a
    retroactive
    requirement
    for
    any
    newly
    regulated
    HWN
    units
    since
    1981.
    The Board followed this language, but solicited comment,
    which went unanswered.
    Second, the USEPA rule refers to “the effective date” of the
    new
    rule.
    If
    the
    Board
    adopts
    the
    verbatim
    text,
    the
    State
    rule
    will
    wind
    up
    referencing
    the
    State
    adoption
    date.
    The
    Board
    132—201
    36
    proposed to do so, but solicited comment as to whether USEPA
    intended the State to reference the earlier USEPA effective date.
    The Board received no written’ response.
    Third,
    in originally adopting an equivalent to the rule, the
    Board omitted the “May 19,
    1981” date,
    since it had already
    passed.
    Rather, the State rule required immediate notification
    by everybody.
    The langu~’geadopted by the Board
    in Section 725.212(a)
    is
    as folldws:
    Within six months after the effective date of the rule
    that first subjects a facility to trovisions of this
    Section, tThe owner or operator of a hazardous waste
    management facility shall have a written closure plan.
    The next USEPA amendment concerns 40 CFR 265.112 (d) (1) and
    (2)
    725.212(d)(1)
    and
    (2).
    This adds notification of closure
    requirements for BIFs.
    40 CFR 265.112(d) (1), as amended, consists of six sentences.
    It is virtually impossible to understand the changes to this
    dense block of text.
    The Board has therefore broken out six
    subsections,
    labeled
    (d) (1) (A)
    -
    (F), each corresponding with a
    sentence.
    The USEPA amendments involve the addition of
    (B) and
    (E), and minor changes to the other provisions.
    The text is as
    follows:
    d)
    Notification of partial closure and final closure.
    1)
    When notice is required.
    ~j
    The owner or operator shall submit the
    closure plan to the Agency at least 180 days
    prior to the date on which the owner or
    operator expects to begin closure of the
    first surface impoundment, waste pile,
    land
    treatment or landfill unit, or final closure
    of a facility withif it involves such a unit~
    whichever is earlier.
    ~j
    The owner or operator shall submit the
    closure plan to the Agency at least 45 days
    prior to the date on which the owner or
    operator expects to beciin partial or final
    closure of a boiler or industrial furnace.
    ~j
    The owner or operator shall submit the
    closure plan to the Agency at least 45 days
    prior to the date on which the owner or
    operator expects to begin final closure of a
    132—202
    37
    facility with only
    tanks,
    container storage
    or incinerator ‘units.
    Q1
    Owners or operators with approved closure
    plans shall notify the Agency in writing at
    least 60 days prior to the date on which the
    owner or operator expects to begin closure of
    a surface impoundment, waste pile,
    landfill
    or land treatment unit, or final closure of a
    facility involving such a unit.
    ~j
    Owners or operators with approved closure
    plans shall notify the Agency in writing at
    least 45 days prior to the date on which the
    owner or operator expects to begin partial or
    final closure of a boiler or industrial
    furnace.
    fi
    Owners and operators with approved closure
    plans shall notify the Agency in writing at
    least 45 days prior to the date on which the
    owner or operator expects to begin final
    closure of a facility with only tanks,
    container storage or incinerator units.
    USEPA also adopted extensive revisions to 40 CFR
    265.112(d) (2) with the BIF rules.
    However, the original language
    was restored with the August 27 corrections.
    Comparison of the language of 40 CFR 265.112(d) (2) with
    Section 725.212(d) (2) has disclosed an error which the Board
    apparently made in adopting this subsection.
    In
    (d) (2) (B),
    “final known volume” should read “known final volume”.
    The Board
    has corrected this.
    There are several minor problems with the USEPA language in
    40 CFR 265.112(d) (2) which the Board corrected on original
    adoption of its equivalent.
    These have not been corrected in the
    USEPA version.
    The Board will retain its version.
    These include
    USEPA’s use of “can demonstrate” for “demonstrates”,
    and “the
    operator
    ...
    can demonstrate
    ...
    and he has taken”.
    Section 725.213
    This Section is drawn from 40 CFR 265.113, which was also
    amended with the BIF rules and the August 27,
    1991, BIF
    corrections.
    USEPA adopted extensive changes to the introductory
    paragraphs to 40 CFR 265.113 (a) and
    (b), but restored the
    original language in the correction.
    The net result is no
    change,
    except for correction of a minor
    typo
    in the Board’s
    text.
    132—203
    38
    Section 725.440
    This Section is drawn from 40 CFR 265.340, which was also
    amended with the BIF rules.
    This is the introduction to the
    applicability Section for interim status incinerators.
    The
    language has been revised along the lines discussed above for
    Section 724.440.
    The incinerator rules now depend on the
    definition of “incinerator” for their applicability, and BIF5 are
    regulated under Part 726.
    Section ‘725.470
    This Section is drawn from 40 CFR 265.370, which was amended
    with the July 17,
    1991, BIF corrections.
    This.is the
    introduction to the Subpart governing “other thermal treatment”.
    The amendment is as follows:
    The regulations in this Subpart apply to owners and
    operators of facilities that thermally treat hazardous
    waste in devices other than enclosed devices using
    controlled flame combustion except, as Section 725.101
    provides otherwise.
    Thermal treatment in enclosed
    devices using controlled flame combustion is subject to
    the requirements of Subpart 0 if the unit is an
    incinerator, and 35-Ill. Adm. Code 726.Subpart H,
    if
    the unit is a boiler or industrial furnace as defined
    in 35
    Ill. Adm. Code 720.110.
    Section 725.543
    Not amended
    This Section is drawn from 40 CFR 265.443, which was amended
    at 56 Fed. Req.
    27336, June 13,
    1991.
    This is the stay of the
    wood preserving rules, which the Board acted on in R91—1.
    Section 725.930
    Process Vents
    This and the following Sections are drawn from 40 CFR
    265.1030,
    et seq., which were amended at 56 Fed. Reg.
    19290.
    This is the corrections to the process vent rules, which the
    Board adopted in R90-11.
    The USEPA corrections came too late for
    the Board to consider them in R90—11.
    However, the Board
    identified most of the errors, and corrected them on its own
    motion.
    In the following discussion, the Board will mention only
    the errors listed in the Federal Register which require
    correction in the Board rules.
    Section 725.934
    Not amended
    The USEPA corrections include a correction to a cross
    reference in 40 CFR 265.1034(c)(1)(vi)
    725.934(c)(l)(F).
    The
    Board has made no change,
    in that the correction appears to have.
    been made.
    132—204
    39
    Section
    725.935
    The
    Board
    has
    inserted
    a
    comma
    after
    “Records”
    in
    Section
    725.935(b)
    (4) (B).
    Section
    725.952
    The
    Board
    has
    corrected
    a
    cross
    reference
    in
    Section
    725.952(e)
    (3)
    as
    follows:
    “(a)(2)(e)(2)”
    ~PART
    726:
    MANAGEMENT
    STANDARDS
    FOR SPECIFIC TYPES
    OF
    HAZARDOUS
    WASTE
    AND
    FACILITIES
    This
    Subpart
    sets
    management
    standards
    for
    specific
    types
    of
    hazardous
    waste
    and
    specific
    types
    of
    facilities.
    The
    existing
    standards
    include
    Subparts
    for
    certain
    types
    of
    recycling,
    including
    used
    batteries
    and
    precious
    metals
    recovery,
    and
    for
    used
    oil.
    The
    major
    change,
    which
    is
    the
    major
    change
    in
    this
    Docket,
    concerns
    standards
    for
    burning
    hazardous
    waste
    in
    boilers
    and
    industrial
    furnaces
    (BIFs).
    Existing
    Subpart
    D
    is
    replaced
    by
    a
    new
    Subpart
    H.
    SUBPART
    D:
    HAZARDOUS
    WASTE
    BURNED
    FOR
    ENERGY
    RECOVERY
    This
    Subpart
    was
    adopted
    in
    R85-22.
    It
    is
    being
    repealed
    and
    replaced
    by
    new
    Subpart
    H.
    Section
    726.136
    was
    previously
    repealed
    in
    R90—11.
    SUBPART
    H:
    HAZARDOUS
    WASTE
    BURNED
    IN
    BIF5
    This
    new
    Subpart
    is
    drawn
    from
    40
    CFR
    266,
    Subpart
    H,
    which
    was
    adopted
    at
    56
    Fed.
    Req.
    7206,
    February
    21,
    1991.
    It
    sets
    new
    standards
    for
    burning
    hazardous
    waste
    in
    BIF5.
    The
    USEPA
    rules
    were
    the
    subject
    of
    three
    corrections
    which
    occurred
    outside
    the
    normal
    batch
    period
    of
    this
    update
    Docket.
    The
    corrections
    were
    at
    56
    Fed.
    Req.
    32688,
    July
    17,
    1991;
    56
    Fed.
    Reg.
    42511,
    August
    27,
    1991;
    and
    56
    Fed.
    Req
    43877,
    September
    5,
    1991.
    In
    initially
    reviewing
    the
    rules,
    the
    Board
    staff
    observed
    a
    large
    number
    of
    apparent
    errors
    in
    the
    USEPA
    February
    21
    rules.
    Rather
    than
    undertake
    an
    independent
    review
    of
    these
    rules,
    the
    Board
    has
    decided
    to
    incorporate
    the
    corrections
    into
    this
    Docket.
    However,
    this
    has
    resulted
    in
    a
    substantial
    delay.
    Before
    proceeding
    into
    a
    Section—by—Section
    discussion
    of
    the
    amendments,
    the
    Board
    will
    first
    set
    forth
    a
    general
    discussion
    of
    the
    types
    of
    changes
    the
    Board
    has
    made
    at
    multiple
    points
    to
    the
    corrected
    USEPA
    rules.
    A
    general
    discussion
    of
    the
    types
    of
    changes
    the
    Board
    makes
    appears
    in
    the
    general
    introduction
    to
    this
    Opinion.
    132—205
    40
    Definitions
    The USEPA rules use a large number of acronyms sporadically.
    The
    Board
    has
    consolidated
    all
    of
    the
    acronym
    definitions
    into
    Section
    726.200(q),
    and
    used
    them
    throughout.
    The
    USEPA
    rules
    also
    include
    a
    number
    of
    terms
    related
    to
    monitoring
    (such
    as
    “hourly
    rolling
    average”).
    These
    are
    repeatedly
    redefined
    in
    the
    rules
    (with
    substantially
    the
    same
    definition).
    These
    redefinitions
    occur
    at
    the
    5th
    or
    6th
    level
    of
    subdivision,
    beyond
    the
    level
    allowed
    by
    the
    Administrative
    Code.
    Therefore,
    to
    retain
    the
    definitions
    in
    situ,
    the
    Board
    would
    have
    to
    collapse
    the
    subparagraphs
    into
    a
    dense
    block
    of
    text,
    which
    would
    be
    unintelligible.
    The
    Board
    has
    instead
    consolidated
    these
    definitions
    in
    Section
    726.200(g)
    also.
    The
    Board
    requested
    comment
    on
    this
    format,
    but
    received
    no
    response.
    Shall,
    Must,
    Will
    and
    May
    The
    Board
    has
    generally
    edited
    the
    USEPA
    text
    to-
    establish
    a
    uniform
    usage
    for
    shall,
    must,
    will,
    may
    and
    related
    words.
    The
    wording
    of
    some
    of
    the
    USEPA
    provisions
    is
    wrong
    when
    translated
    into
    State
    rules,
    mainly
    because
    a
    different
    agency
    issues
    permits.
    As
    is
    discussed
    in
    previous
    Opinions,
    it
    is
    far
    simpler
    to
    establish
    a
    uniform
    ..usage
    for
    these
    terms,
    rather
    than
    debate
    whether
    each
    occurrence
    is
    correct.
    In
    making
    these
    changes,
    the
    Board
    intends
    to
    translate
    the
    USEPA
    rules
    into
    the
    Illinois
    two-
    agency
    context,
    using
    the
    terms
    as
    defined.
    The
    Board
    does
    not
    intend
    to
    make
    any
    substantive changes in the USEPA rules.
    The
    USEPA
    rules
    are
    not
    necessarily
    wrong
    in
    these
    word
    usages.
    The
    Board
    has
    established
    special,
    self—consistent,
    usages
    in
    these
    rules
    to
    simplify
    the
    process
    of
    translation.
    The
    Board
    has
    used
    “shall”
    when
    the
    subject
    of
    the
    sentence
    has
    to
    do
    some
    action
    if
    the
    stated
    condition
    obtains.
    For
    example,
    “The
    operator
    shall
    fill
    out
    the
    form...”
    The
    Board
    has
    used
    “must”
    where
    an
    action
    is
    required,
    but
    not
    by
    the
    subject
    of
    the
    sentence.
    For
    example:
    “The
    form
    must
    be
    filled
    out...”
    The
    major
    change
    is
    “will”
    to
    “shall”.
    The
    USEPA
    rules
    are
    written
    as
    neutral
    statements
    of
    future
    intent
    by
    the
    permit
    writer.
    For
    example:
    “USEPA)
    will
    issue
    a
    permit
    if...”
    In
    the
    two—agency
    context,
    this
    becomes:
    “The
    Agency
    shall
    issue
    a
    permit
    if...”
    The
    USEPA
    rules
    contain
    many
    occurrences
    of
    “may”.
    The
    Board
    has
    attempted
    to
    restrict
    these
    to
    situations
    in
    which
    the
    operator
    (or
    Agency)
    has
    an
    option
    to
    do
    the
    stated
    action
    or
    not
    ~1o it.
    For
    example,
    “The
    operator
    may
    apply
    for
    an
    alternative
    standard.
    ~.“
    Or,
    “The
    Agency
    may
    initiate
    enforcement...”
    132—206
    41
    A few USEPA rules specify an option in which the operator
    has to do one of two things.
    For example:
    “The operator may do
    A
    or
    B.
    The
    operator
    may
    do
    A;
    or
    the
    operator
    may
    do
    B”.
    The
    problem
    with
    this
    wording
    is
    that,
    as
    “may”
    is
    defined
    above,
    it
    would leave open the possibility that the operator could also do
    C or
    D.
    These have been worded as follows:
    “The
    operator shall
    do
    either
    A
    or
    B.
    The
    operator
    shall
    do
    A;
    or
    the
    operator
    shall do B”.
    The
    USEPA
    rules
    contain
    many
    occurrences
    of
    “may
    not”.
    For
    example,
    “The
    ‘operator
    may
    not
    despoil
    the
    environment.”
    The
    Board has generally changed these to “shall
    not!’.
    Another repeated use of “may” is in provisions which say
    “evidence of X may be ‘information’ justifying modification or
    revocation
    ...
    of a permit...”
    The Board. construes “may” in this
    situation as meaning that the State may or may not initiate
    action to modify or revoke the permit.
    How the Agency decides
    this
    is governed by 35 Ill.
    Adm.
    Code 703.270 et seq.
    However,
    the information either is or is not sufficient grounds.
    If it
    “is not” there would be a non—rule.
    The Board therefore
    concludes that the USEPA rule means “is”, and has used “is”.
    “State
    Director”
    The USEPA rules generally specify that the “State Director”
    is to make decisions.
    The Board has given the factors it
    considers in deciding whether a decision ought to be made by the
    Board or Agency in the general introduction to this Opinion.
    Almost all of the decisions in this Subpart are appropriate as
    Agency permit decisions.
    The,Board has therefore generally
    changed
    “State
    Director”
    to
    “Agency”.
    The
    USEPA
    rules
    include
    some
    other
    aphorisms,
    such
    as
    “permit
    writer”
    and
    “permit
    authority”,
    which
    have
    also
    been
    changed
    to
    “Agency”.
    There
    is
    one
    occurrence
    of
    “Regional
    Administrator”
    Section
    726.204(a)
    (2),
    which,
    as
    is
    discussed
    below,
    raises
    a
    question
    as
    to
    whether
    USEPA
    intends
    to
    retain
    partial
    administrative
    oversight.
    At
    the
    opposite
    extreme,
    some
    of
    the
    USEPA
    rules
    appear
    to
    leave
    no
    room
    for
    USEPA
    action
    prior
    to
    authorization
    40
    CFR
    266.103(c)
    (7)
    (ii).
    “RCRA
    Operating
    Permit”
    The
    USEPA rules contain many occurrences of the phrase
    “RCRA
    operating permit”.
    This is a new term, whose meaning we do not
    know.
    USEPA corrected some of these to
    “RCRA permit”
    at
    56
    Fed.
    Reg. 43877.
    The Board has attempted to correct all of them,
    on
    the assumption that they are all in error.
    “Particulate Matter
    Standard”
    132—207
    42
    The USEPA rules include standards for particulate matter.
    This is sometimes abbreviated “PM”.
    The Board has used the
    acronym
    uniformly
    throughout
    the
    Subpart.
    USEPA sometimes apparently abbreviates “particulate matter
    standard” as “particulate standard”.
    The Board believes this
    refers to the same thing, and has used “PM standard” throughout.
    Format
    for
    Formulas
    and
    Exponents
    Th~ USEPA
    rules
    have
    several
    formulas
    which
    make
    extensive
    use
    of
    Greek
    letters,
    subscripts
    and
    a
    multi—line
    format.
    These
    violate
    Administrative
    Code
    format
    requirements.
    Moreover,
    it
    is
    nearly impossible to get these to consistently print right,
    and
    impossible to get them right in the printed versions of the rules
    published
    by
    the
    Agency
    and
    Secretary
    of
    State.
    This
    is
    adequately
    demonstrated
    by
    USEPA’s
    efforts
    to
    correct
    the
    formulas in the Federal Register.
    USEPA is introducing new
    errors at a rate which is approximately equal to the rate of
    correction.
    Rather than fight this battle, the Board has rewritten all
    of
    the
    formulas
    to
    eliminate
    all
    subscripts.
    Mostly
    this
    is
    just
    by dropping unnecessary subscripts.
    For example, “W~”and “Wa”
    become “0” and “I”.
    -
    Another type of subscript is indicating indexes for
    summation.
    This is related to the “E” notation for indicating
    summation.
    The Board has replaced this with “SUM(Xi)”,
    a
    notation commonly used in computer programming, which is defined
    with each formula.
    Indices havesimply been placed on the same
    line as the variable.
    Parameters for summing are always the
    same:
    i =
    1 to n.
    These have been moved into the definition of
    “SUM”.
    ,This avoids alignment problems which always crop up.
    A similar alignment problem occurs with the use of a
    horizontal line to indicate division.
    The Board has rearranged
    the formulas so as to use
    “/“
    to indicate division.
    The Board has had a longstanding problem with how to write,
    in compliance with Code Division requirements, numbers in rules
    using scientific notation (for example,
    6.3x104).
    In one format
    the Board has used in past rulemakings, this would be written as
    “6.3E-08”, the form in which this would be written in many
    programming languages.
    This rule contains extensive numerical
    tables in which USEPA has itself adopted this format.
    The Board
    has followed this format.
    In a few instances, USEPA has departed from the “E”
    convention.
    The Board has edited the text to uniformly follow
    this convention.
    In addition,
    in a few places USEPA has inserted
    132—208
    43
    an “x”
    (for “times”), which the Board has deleted.
    For example,
    “6.3xE—08” has been rendered as “6.3E—08”.
    Certification of Precompliance
    40 CFR 266.103(b)
    is an enormous subsection which required
    operators to file a “certification of precompliance” with USEPA
    by August 21,
    1991.
    The time for compliance with this
    requirement is already past.
    Moreover, it appears to have no
    future impact.
    (For example, there appears to be no requirement
    that new facilities go through the precompliance step.)
    The
    Board has therefore in
    Section 726.203(b)
    simply referenced the
    certification of precompliance to USEPA.
    In other words,
    the
    Board will not require a separate certification to the Agency.
    Extensions of Time
    40 CFR 266.103(c) requires a certification of compliance by
    August 21,
    1992.
    The Board has adopted these requirements, which
    will still have a future impact at the time the Board adopts
    them.
    This will mean that facilities will have to certify
    compliance both to USEPA and the Agency (unless USEPA authorizes
    Illinois to administer these rules before August).
    This
    duplicate certification appears to be mandated by Sections 7.2
    and 22.4(a)
    of the Act.
    40 CFR 266.103(c) (7) (ii) allows an extension of time for the
    certification of compliance.
    This ‘rather large subsection starts
    near the maximum number of levels of subdivision allowed under
    the Administrative Code.
    If it were kept at its USEPA location,
    it would collapse into a dense block,
    and
    be
    unreadable.
    The
    Board has therefore moved it out to Section 726.219.
    A cross
    reference remains at Section 726.203(c) (7) (B).
    It’s rather unlikely that USEPA will authorize these rules
    before August,
    1992.
    This will mean that a dual federal/State
    regulatory system will still be in place.
    It would therefore
    require both a State and federal extension to miss this date.
    An
    alternative approach would deem the State date extended if USEPA
    grants an extension.
    However, the USEPA rule, as written,
    allows
    only State extensions.
    The Board requested comment on this
    possible error in the USEPA rules, but received no response.
    Existing Boiler Determinations
    The BIF rules replace earlier rules adopted by the Board in
    R85-22.
    These include the “boiler determination” procedures of
    35
    Ill. Adm. Code 720.132.
    This is apparently unaffected by the
    new USEPA rules.
    There would still be a possibility that a
    person could make application for a “boiler determination”.
    However, the effect of that determination would now be to place
    the unit into the new BIF rules.
    132—209
    4.4
    The boiler and related determinations may need updating to
    reflect the new generic adjusted standards procedures.
    The Board
    requested comment as to whether it ought to undertake this in
    this Docket, but received no response.
    Total Chlorine and.Chloride
    The
    USEPA
    rules
    make
    frequent
    reference
    to
    “total
    chlorine
    and chloride” and to “total chloride and chlorine”.
    The Board
    believes that these are all referring to the same thing, and that
    the
    forif~er is
    correct.
    Section-by-Section Discussion of BIF Rules
    Section 726.200
    This Section is drawn from 40 CFR 266.100, which was adopted
    at 56 Fed. Reg.
    32688, February 21,
    1991.
    The Section wa~
    corrected at:
    56 Fed. Req.
    32688, July 17,
    1991;
    56 Fed. Req.
    42511,, August 27,
    1991;
    and 56 Fed. Req 43877,
    September 5,
    1991.
    This Section is the introduction to the BIF rules.
    This
    Subpart applies to boilers and industrial furnaces
    (“BIFs”)
    burning hazardous waste for energy recovery or destruction,
    or
    processing for materials recovery or as an ingredient.
    The basic
    applicability terms are defined in Part 720 above.
    The September
    5 USEPA action added a “Note” to Section
    726.200(a).
    This grants a stay of the applicability to coke
    ovens processing coke oven by-products exhibiting the toxicity
    characteristic.
    The USEPA stay will terminate when USEPA removes
    the “Note” from its rules.
    This eliminates possible problems
    discussed in R91-1
    in connection with similar stays.
    The Board
    stay will terminate when the Board removes the note from its
    rules, which will occur in the normal update process within one
    year after USEPA removes its note.
    As is discussed in general above, the Board has added
    Section 726.200(g).
    This is a collection of abbreviations and
    definitions implied by, but not stated in, the USEPA rules.
    The first type of definition is acronyms, most of which are
    repeatedly defined at scattered locations in the USEPA rules.
    These include the following widely used acronyms which will also
    be used in the Opinion:
    “BIF” means boiler or industrial furnace.
    “CO” means carbon monoxide.
    “DRE” means destruction or removal efficiency.
    132—210
    45
    “HC” means hydrocarbon.
    “HCl” means hydrogen chloride gas.
    “MEl” means maximum exposed individual.
    “MEl location” means the point with the maximum
    annual average off—site (unless on—site is
    required)
    ground
    level
    concentration.
    “PlC” means product of incomplete combustion.
    “PM”
    means
    particulate
    matter.
    “POHC”
    means
    principal
    organic
    hazardous
    constituent.
    “RAC”
    means reference air concentration, the
    acceptable
    ambient
    level
    for
    the
    noncarcinogenic
    metals for purposes of this Subpart.
    RACs are
    specified
    in
    Appendix
    D.
    “RSD” means risk—specific dose, the acceptable
    ambient level for the carcinogenic metals for
    purposes Of this Subpart.
    RSD5 are specified in
    Appendix E.
    “TESH”
    means
    terrain—adjusted
    effective
    stack
    height.
    The Board has added additional explanation and cross—
    references for the definitions of
    “RAC”
    and “RSD”.
    These are
    taken
    from
    40
    CFR
    266.106(d)
    (2).
    The term “MET”
    (“maximum exposed individual”)
    is used in
    Section
    726.204(e)
    Several
    documents
    are
    referenced
    in
    that
    Section.
    The
    Boara
    requested
    comment
    as
    to
    whether
    there
    might
    be a definition of this term in one of those references, or
    somewhere
    else,
    but
    received
    no
    response.
    The second type of definition is drawn from air monitoring
    rules.
    These
    definitions
    are
    repeated
    numerous
    times
    with
    specific
    monitoring
    provisions.
    The
    Board
    has
    collected
    them
    into
    this
    definition
    set
    to
    shorten
    the
    rules,
    and
    to
    avoid
    problems
    which
    would
    arise
    because
    USEPA
    has
    defined
    these
    at
    a
    level of subdivision beyond what the Board can use in the
    Administrative Code.
    These definitions are as follow:
    “Continuous monitor” is a monitor which continuously
    samples the regulated parameter without interruption,
    and evaluates the detector response at least once each
    15 seconds, and computes and records the average value
    132—211
    46
    at.
    least
    every
    60
    seconds.
    “One hour block average” means the arithmetic mean of
    the one minute averages recorded during the 60—minute
    period
    beginning
    at
    one
    minute’ after
    the
    beginning
    of
    preceding
    clock
    hour
    “Rolling average for the selected averaging period”
    means the arithmetic mean of one hour block averages
    for the averaging period.
    Some of these definitions were modified in the corrections
    listed
    above.
    The
    Board
    has
    reviewed
    the
    USEPA
    rules,
    and
    does
    not
    see
    any
    reason
    why
    these
    should
    not
    be
    made
    Subpart
    definitions.
    The
    Board requested comment as to whether there might be some problem
    with
    making
    these
    definitions,
    but
    received
    no
    comment.
    Related
    to
    the
    air
    monitoring
    definitions
    is
    the-term
    “feed
    rate”.
    This
    appears
    to
    be
    measured
    as
    specified
    in
    Section
    726.202(e)
    (6).
    The
    Board
    has
    placed
    a
    cross
    reference
    in
    the
    definition.
    USEPA
    also
    has
    a
    repeated
    definition’
    of
    “good
    engineering
    practice
    stack
    height”:
    “Good
    engineering
    practice
    stack
    height”
    is
    as
    defined
    by
    40
    CFR
    51.100(u)
    The
    Board
    has
    incorporated this by reference ‘in
    35
    Ill.
    Adm.
    Code
    720.111.
    The
    “51.100(u)”
    is
    unusual,
    but
    correct.
    This
    is
    from
    a
    long
    list
    of
    lettered
    definitions.
    51.100(u)
    follows
    51.100(aa),
    et seq.
    It is hard to find near 51.100(hh) (1) (ii).
    The USEPA rules make frequent reference to “Tiers”
    I,
    II and
    III.
    These
    appear
    to
    be
    defined
    by
    Section
    726.206(b),
    (c)
    and
    (d).
    The
    Board
    has
    defined
    the
    terms
    by
    reference
    to
    those
    Sections.
    The
    Board
    requested
    comment
    on
    this,
    but
    received
    no
    response.
    The
    USEPA
    rules
    make
    frequent
    reference
    to
    “carcinogenic
    ‘metals”
    and
    “noncarcinogenic
    metals”,
    which
    are
    parenthetically
    defined.
    The
    Board
    has
    moved
    these
    definitions
    to
    this
    Section,
    as
    follows:
    “Carcinogenic
    metals”
    means
    arsenic,
    beryllium,
    cadmium
    and
    chromium.
    “Noncarcinogenic
    metals”
    means
    antimony,
    barium,
    lead,
    mercury, thallium and silver.
    132—2 12
    47
    With respect to metals, the USEPA rules are clear that they
    are defining these
    terms
    in this manner.
    In particular,
    it would
    not make any regulatory difference if subsequent research shifted
    some metals from the “noncarcinoqenic” to the “carcinogenic”
    category.
    The ways the rules are written, the standards and
    methods for addressing these metals would remain the same
    (until
    USEPA amended the rules).
    With respect to the nonmetals,
    however, the term “carcinogenic” is used in a different sense.
    For
    example,
    se,e Section 626.204(f)(3)(D))
    In this situation,
    the rules appear to mean “in fact carcinogenic”.
    Moreover, there
    is no definition of “carcinogenic”, or procedures for such
    determination.
    The way the rules are drafted, they appear to imply that ‘the
    Agency must make a case—by—case determination of carcinogenicity
    (of nonmetals)
    in the context of each permit application.
    If
    there were a list
    (or definition or procedure)
    which is
    dispositive of “carcinogenicity”, it would need to be referenced
    into the rules.
    The Board requested comment on this, but
    received no response.
    Therefore,
    as. adopted, this rule will
    require an ab
    initio
    determination of carcinogenicity in each
    case.
    The term “SSU” is used in 40 CFR 266.110(f) (1) as a measure
    of viscosity, without definition.
    ‘
    The Board has moved the
    definition to this point,
    and has determined that “SSU” stands
    for “Saybolt Seconds Universal”, which is measured by ASTM D445-
    B8 and D2l61-87.
    These Methods are incorporated by reference in
    Section 720.111,
    above.
    Another term which is used without explicit definition is
    “toxicity equivalent”.
    The definition is implied by 40 CFR
    266.104(e)(2).
    The Board has added the following definition,
    referencing the equivalent Board rule:
    “Toxicity equivalence”
    is estimated, pursuant to
    Section 726.204(e), using “Procedures for Estimating
    the Toxicity Equivalence of Chlorinated Dibenzo-p-
    Dioxin and Dibenzofuran Congeners” in Appendix I
    (“eye”)
    rhis term is used in 40 CFR 266.103(c) (4)
    (ii)
    (B)
    726.203(c)
    (4) (B) (ii),
    prior to the implied definition.
    ection
    726.201
    Management
    prior
    to
    burning
    This Section is drawn from 40 CFR 266.101, which was adopted
    it
    56
    Fed.
    Reg.
    7206,
    February
    21,
    1991.
    This
    specifies
    which
    )ortions
    of
    the
    generator, transporter and storage facility rules
    ipply
    prior
    to
    burning
    in
    a
    BIF.
    ection
    726.202
    Permit
    standards
    for
    burners
    132—2 13
    48
    This Section is drawn from 40 CFR 266.102, which was adopted
    at 56 Fed. Reg.
    7206,
    February 21,
    1991.
    The Section was also
    subject to correction at 56 Fed.
    Req. 32688, July 17,
    1991 and 56
    Fed.
    Req.
    42511, August 27,
    1991.
    40 CFR 266.102(a) (2) (vii) provides that “States and the
    Federal government” are exempt from the financial assurance
    requirement.
    The Board rule provides that “the State of Illinois
    and the federal government” are exempt.
    40’CFR 266.102(b)(1)
    726.202(b)(1)
    governs waste analysis.
    It is worded as follows:
    This, analysis will be used to provide all information
    required by this subpart and
    ...
    and
    to enable the
    permit writer to prescribe such permit conditions as
    necessary to protect human health and the environment.
    This can be shortened and made clearer,
    as follows:
    This analysis must provide all information required by
    this Subpart and 35 Ill. Adm. Code 703.208 and 703.232
    and must enable the Agency to prescribe such permit
    conditions as necessary to protect human health and the
    environment.
    The analysis must “provide all information
    ..,
    to enable the
    Agency to prescribe such permit conditions as necessary to
    protect human health and the environment”.
    The analysis may be
    submitted with the Part B application, or for certain facilities,
    as a portion of a trial burn plan which “may be submitted before
    the Part B application”.
    This appears to be a true option
    residing with the operator.
    40 CFR 266.102(b) (1) also refers to “other analysis required
    by the Agency”.
    The criterion for whether the Agency can require
    the additional analysis appears to be whether the information is
    necessary for it to write conditions “necessary to protect human
    health and the environment”.
    40 CFR 266.102(e)(1)
    726.202(e)(1)
    appears to have a typo
    which USEPA has not yet corrected.
    A BIF must be operated in
    accordance with the rules “at all times where there is hazardous
    waste
    in the unit”.
    USEPA probably means “when”, which the Board
    has used.
    40 CFR 266.102(e)(2)(i)
    726.202(e)(2)(A))
    also appears to
    have a typo, although it is not altogether clear how to fix it.
    The provision reads:
    Operating conditions must be specified either:
    on a
    case—by—case basis for each hazardous waste burned as
    132—214
    49
    those demonstrated
    (in a trial burn or by alternative
    data as specified in 35 Ill. Adm. Code 703.208) to be
    sufficient to comply with the DRE performance standard
    of Section 726.204(a);
    or,
    as those special operating
    requirements provided by Section 726.204(a) (4)
    for the
    waiver of the DRE trial burn.
    The Board requested comment on how to fix this, but received
    no response.
    The Board has adopted the following language
    726.202(e)
    (2) (A):
    Operating conditions must be specified either:
    on a
    case—by—case basis for each hazardous waste burned,
    which conditions must be demonstrated (in a trial burn
    or by alternative data as specified in 35 Ill. Adm.
    Code 703.208) to be sufficient to comply with the DRE
    performance standard of Section 726.204(a);
    or,
    as
    special operating requirements provided by Section
    726.204(a) (4)
    for the waiver of the DRE trial burn.
    40 CFR 266.102(e) (3) (ii) and
    (iii) provide that,
    ‘for certain
    types of facilities,
    “permit conditions to ensure compliance with
    the
    PM
    standard shall not” be in the permit
    (for facilities
    exempt
    from
    the
    PM
    standard).
    Consistent
    with
    the
    general
    discussion
    above
    on
    the
    Use
    of
    “shall”
    and
    “must”,
    the
    Board
    has
    edited this to “must not”.
    726.202(e)(3)(A)
    and
    (B)
    40 CFR 266.102(e)(5)(i)(A)
    726.202(e)(5)(A)(i)
    appears to
    have
    a
    typo
    which
    USEPA
    has
    not
    yet
    corrected.
    “Total
    chloride
    and
    chlorine”
    should
    probably
    read
    “total
    chlorine
    and
    chloride”.
    40
    CFR
    266.102(e)
    (6) (i)
    (B)
    contains
    definitions
    which
    have
    been
    moved
    to
    Section
    726.200(g).
    The
    definitions’were
    the
    subject of the corrections listed above.
    40 CFR 266.102(e) (6) (i) (B) also appears to have a definition
    of “carcinogenic metals”.
    This has been moved to Section
    726.200(g).
    40 CFR 266.102(e)(6)(iv)(B)
    726.202(e)(6)(D)(ii)
    includes
    a possible typo which USEPA has not yet corrected.
    The rule
    provides that “the facility must operate under trial burn
    conditions...”
    This probably should read “unit”.
    The’ Board has
    followed the latter wording.
    40 CFR 266.102(e) (6) (iv) (B) requires the unit to reach
    steady-state operations before testing.
    It includes the
    following proviso:
    The Director may determine,
    however, that industrial
    furnaces that recycle collected particulate matter back
    into the furnace and that comply with an alternative
    132—215
    50
    implementation approach for metals under
    S 266.106(f),
    need not reach steady state conditions with respect to
    the flow of metals in the system prior to beginning
    compliance testing for metals emissions.
    As written this appears to allow the State the option of either
    making the determination or not making it, with no criterion for
    deciding whether to make the determination.
    This is probably not
    what USEPA meant
    (if an operator asks for a determination, he has
    a right to a yes or no answer).
    The Board assumes that the “may”
    means t1~atthe operator under the alter’hative approach has the
    option of testing before reaching steady-state, or after.
    This
    leaves open the question of whether prior approval needs to be
    given.
    The Board believes that the approval should come pursuant
    to
    the
    referenced
    40
    CFR
    266.106(f)
    726.206(f),
    rather
    than
    this Section.
    The Board has therefore worded this as:
    However,
    industrial furnaces that recycle collected PM
    back
    into
    the
    furnace
    and
    that
    comply
    with
    an
    alternative implementation approach for metals under
    Section 726.206(f) need not reach steady state
    conditions with respect to the flow of metals in the
    system prior to beginning compliance testing for metals
    emissions.
    40 CFR 266.102(e)(7)(ii)
    726.202(e)(7)(B)
    specifies
    general requirements for automatic waste feed cutoff.
    The
    introduction authorizes the State to limit the
    number
    of cutoffs
    during any operating period,
    as follows:
    A boiler or industrial furnace must be operated with a
    functioning system that automatically cuts off the
    hazardous waste feed when operatinq conditions deviate
    from those established under this section. The Director
    may limit the
    number
    of cutoffs per an operating period
    on a case—by—case basis.
    Following this introduction are three other types of conditions
    concerning waste feed cutoffs.
    For example, the State is to
    specify minimum combustion temperature and residence times, etc.
    The problem with the quoted language is that it does not give any
    criterion by which the State decides whether to limit the humber
    of cutoffs, or any criterion for deciding what the appropriate
    number should be.
    The Board therefore proposed not to allow such
    limits, but requested comment.
    The Board received no response.
    40 CFR 266.102(e)(7)(iii)
    726.202(e)(7)(C))
    reads as
    follows:
    A
    BIF
    must cease burning hazardous waste when changes
    in combustion properties, or feed rates of the
    hazardous waste, other fuels, or industrial furnace
    132—216
    51
    feedstocks, or changes in the BIF
    design or operating
    conditions deviate from the limits as specified in the
    permit.
    The permit should specify the combustion properties,
    etc.
    The BIF should cease burning when the combustion properties,
    etc.
    “deviate from” the permit limits.
    It is not clear how “changes
    in” the combustion properties could be specified in the permit,
    or how the “changes in” could “deviate from”.6
    The Board has
    deleted,the “changes in”,
    so that Section 726.202(e) (7) (C)
    reads
    as follows:
    A BIF must cease burning hazardous waste when
    combustion properties,
    or feed rates of the hazardous
    waste,
    other fuels or industrial furnace feedstocks,
    or
    the BIF design or operating conditions deviate from the
    limits as specified in the permit.
    40 CFR 266.102(e)(8)(i)(C)
    726.202(e)(8)(A)(iii)
    requires
    the operator to conduct sampling and analysis of waste,
    fuel,
    residue and exhaust,
    “Upon the request of the Director,
    ...
    to
    verify that the operating requirements established in the permit
    achieve the applicable standards...”
    The Board believes the “to
    verify” phrase
    is a sufficient criterion for the exercise of this
    authority.
    In that this procedure would take place following the
    issuance of the permit, the procedural context would either be
    Agency-initiated permit modification pursuant to Section 703.270
    et seq., or as set out in the permit itself.
    40 CFR 266.102(e)(8)(iv)
    726.202(e)(8)(D)
    requires weekly
    inspections of’cutoff systems unless the operator demonstrates to
    the State that weekly inspections will “unduly restrict or upset
    operations”,
    in which case an alternative rate
    (greater than
    monthly) must be used.
    The criterion appears to be adequate to
    allow Agency action.
    The procedural context would be in the
    permit application, or an application by the operator to modify.
    Section 726.203
    Interim Status Standards for Burners
    This Section is drawn from 40 CFR 266.103, which was adopted
    at 56 Fed. Req.
    7206, February 21,
    1991, and corrected as listed
    above.
    It establishes “interim status standards” for existing
    BIF5 pending issuance of a
    RCRA
    permit.
    40 CFR 266.103(a)(1)(ii)
    726.203(a)(1)(B)
    defines
    “existing” facility.
    This includes facilities which have
    6Ordinarily
    a
    permit
    would
    specify
    a
    range
    of
    operating
    conditions.
    The
    “changes
    in”
    language may be intended to mean
    “outside the specified range”.
    However, this is taken care of by
    the language of the permit condition itself.
    132—217
    52
    “commenced construction” by August 21,
    1991.
    This,
    in turn,
    is
    conditioned on the operator having obtained “the Federal,
    State
    and local approvals or permits necessary to begin physical
    construction”.
    The Board requested comment as to the identity of
    any specific such approvals required in Illinois for BIFs, but
    received no response.
    However, because the USEPA handled the
    “certification of precbmpliance”,
    the definition in the State
    rules need only reference the action taken by the USEPA under the
    federal
    rules.
    As is discussed in general above, and below in connection
    with Section 726.203(b),
    the USEPA rules required a
    “certification of precompliance” to be filed by August 21,
    1991.
    The complete text of the USEPA rule is set forth below.
    Because
    these are “HSWA” rules, operators were required to file this
    certification with USEPA pursuant to the federal rules, even in
    authorized States,
    such as Illinois.
    The Board proposed to
    merely incorporate these rules by reference, without requiring a
    new certification to be filed with the Agency after adoption of
    the State rules.
    The Board received positive comment’ on this
    aspect of the Proposal, and has adopted the certification of
    precompliance rules as proposed.
    Among other things, the “certification of precompliance”
    requires the operator t~give public notice,of the certification,
    to establish operating limits for the BIF, and to bind itself to
    meeting these limits as though they were permit conditions.
    The
    question of what is an “existing facility” arises in the context
    of the “certification of precompliance”.
    If USEPA determines
    that the facility does qualify as an “existing facility”,
    the
    facility may legally operate as an interim status BIF,
    subject to
    the operating limits established in the certification.
    The Board has therefore defined “existing facility” by
    reference to whether the facility filed a certification of
    precompliance with USEPA.
    The language is as follows:
    a)
    Purpose, scope,
    applicability.
    1)
    General.
    A)
    The purpose of this Section is to establish
    minimum national standards for owners and
    operators of “existing” BIF5 that burn
    hazardous waste where such standards define
    the acceptable management of hazardous waste
    during the period of interim status.
    The
    standards of this’ Section apply to owners and
    operators of existing facilities until either
    a permit is issued under Section 726.202(d)
    or until closure responsibilities identified
    in this Section are fulfilled.
    132—218
    53
    B)
    “Existing” or “in existence” means a BIF that
    on or before August 21,
    1991 is either in
    operation burning or processing hazardous
    waste or for which construction (including
    the ancillary facilities to burn or to
    process the hazardous waste)
    has commenced.
    -
    A facility has commenced construction if the
    owner
    or operator has obtained the federal,
    Ctate and local approvals or permits
    necessary to begin physical construction;
    and either:
    i)
    A continuous on-site, physical
    construction program has begun;
    or
    ii)
    Thc owner or operator has entered into
    eei~tractualobligations, which cannot be
    canceled or modified without substantial
    loss,
    for physical construction of the
    facility ta be completed within a
    reasonable time. for which the owner or
    operator filed a certification of
    precompliance with USEPA pursuant to 40
    CFR 266. 103 (b), incorporated by
    reference in subsection
    (b), below;
    provided, however, that USEPA has not
    determined that the certification is
    invalid.
    40 CFR 266.103(a)(1)(iii)
    726.203(a)(1)(C))
    reads as
    follows:
    If a
    BIF
    is located at a facility that already has a
    permit or interim status, then the facility must comply
    with the applicable regulations dealing with permit
    modifications
    ...
    or changes in interim status in
    As the Board construes this,
    it is referring to a facility
    with a
    “RCRA
    permit
    or interim status”.
    The common example of
    this would be a facility’which has a hazardous waste management
    unit,
    other than the BIF, for which it already has a permit or
    interim status.
    Such a facility has to proceed by way.of
    modification of the facility permit, instead of by the initial
    application procedures generally specified.
    Actually,
    it is the
    “owner or operator” which has to proceed, rather than the
    inanimate facility.
    The Board has adopted the following language
    in Section 726.203(a) (1) (C):
    If a BIF is located at a facility that already has a
    RCRA
    permit or interim status, then the owner or
    operator shall comply with the applicable regulations
    dealing with permit modifications in 35 Ill. Adm. Code
    13 2—2 19
    54
    703.280 or changes in interim status in 35 Ill. Adm.
    Code 703.155.
    40 CFR 266.103(a) (5) (i) (D)
    includes a reference to the
    “hydrocarbon controls of 5 266.104(c)”.
    This reference appears
    to be wrong.
    In Section 726.203(a) (5) (A) (iv),
    the Board has
    referenced Section 726.204(f)
    266.104(f)).
    Certification of Precompliance
    40 CFR 266.103(b) governs the “certification of
    precompliance” requirement for interim status.
    As is discussed
    in general above, the Board has merely referenced the USEPA rules
    into Section 726.203(b).
    The certification of precompliance was
    due on August 21,
    1991, which has already passed.
    The Board
    solicited comment as to whether there is any continuing need for
    these provisions in the Board rules.
    The Board received no
    written response.
    As is discussed above,
    the certification of precompliance
    determines whether a facility which first becomes regulated
    because of a BIF is an “existing facility”.
    The Board will set
    forth the complete text of the USEPA certification of
    precompliance rules in this Opinion
    40
    CFR 266.103(b):
    (b) Certification of precompliance-(1) General.
    The owner or operator must provide complete and
    accurate information specified in paragraph
    (b) (2)
    of
    this section to the Director on or before August 21,
    1991, and must establish limits for the operating
    parameters specified in paragraph
    (b) (3) of this
    section. Such information is termed a “certification of
    precompliance” and constitutes a certification that the
    owner or operator has determined that, when the
    facility is operated within the limits specified in
    paragraph
    (b) (3)
    of this section, the owner or operator
    believes that, using best engineering judgment,
    emissions of particulate matter,
    metals, and HC1 and
    Cl2
    are
    not
    likely
    to
    exceed
    the
    limits
    provided
    by
    SS
    266.105,
    266.106, and 266.107. The facility may burn
    hazardous waste only under the operating conditions
    that
    the
    owner
    or
    operator
    establishes
    under
    paragraph
    (b) (3)
    of this section until the owner or operator
    submits a revised certification of precompliance under
    paragraph
    (b) (8) of this section or a certification of
    compliance under paragraph
    (c)
    of this section, or
    until
    a permit is issued.
    (2) Information required. The following
    information must be submitted with the certification of
    precompliance to support the determination that the
    132—220
    55
    limits established for the operating parameters
    identified in paragraph (b) (3)
    of this section are not
    likely to result in an exceedance of the allowable
    emission rates for particulate matter, metals, and HC1
    and Cl2:
    (i) General facility information:
    (A) EPA facility ID
    number;
    (B) Facility name, contact person, telephone
    number,
    and address;
    (C) Description of boilers and industrial furnaces
    burning hazardous waste,
    including type and capacity of
    device;
    (D) A scaled plot plan showing the entire facility
    and location of the boilers and industrial furnaces
    burning hazardous waste;
    and
    (E) A description of the air pollution control
    system on each device burning hazardous waste,
    including the temperature of the flue gas at the inlet
    to the particulate matter control system.
    (ii) Except for facilities complying with the Tier
    I feed rate screening limits for metals or total
    chlorine and chloride provided by 55 266.106
    (b)
    or
    (e)’
    and 266.107
    (b) (1) or
    (e)
    respectively, the estimated
    uncontrolled
    (at the inlet to the air pollution control
    system) emissions of particulate matter, each metal
    controlled by S 266.106, and hydrogen chloride and
    chlorine, and the following information to support such
    determinations:
    (A) The feed rate (lb/hr)
    of ash, chlorine,
    antimony, arsenic,
    barium, beryllium,
    cadmium,
    chromium, lead,
    mercury, silver, thallium in each
    feedstream
    (hazardous waste,
    other fuels,
    industrial
    furnace feedstocks);
    (B) The estimated partitioning factor to the
    combustion gas for the materials identified in
    paragraph
    (b) (ii) (A)
    of this section and the basis for
    the estimate and an estimate of the partitioning to HC1
    and Cl2 of total chloride and chlorine in feed
    materials. To estimate the partitioning factor, the
    owner or operator must use either best engineering
    judgment or the’ procedures specified in appendix IX of
    this part.
    132—22 1
    56
    (C) For industrial furnaces that recycle collected
    particulate matter
    (PM) back into the furnace and that
    will certify compliance with the metals emissions
    standards under paragraph’ (c) (3) (ii) (A), the estimated
    enrichment factor for each metal. To estimate the
    enrichment factor, the owner or qperator must use
    either best engineering judgment or the procedures
    specified in “Alternative Methodology for Implementing
    Metals Controls” in appendix IX of this part.
    (D)
    If best engineering judgment is used to
    estimate partitioning factors or enrichment factors
    under paragraphs
    (b) (ii) (B)’ or
    (b) (ii) (C) respectively,
    the basis for the judgment. When best engineering
    judgment
    is
    used to develop or evaluate data or
    information and make determinations under this section,
    the determinations must be made by a qualified,
    registered professional engineer and a certification of
    his/her determinations in accordance with 5 270.11(d)
    of this chapter must be provided in the certification
    of
    precompliance.
    (iii)
    For facilities complying with the Tier
    I
    feed rate screening limits for metals or total chlorine
    and chloride provided by SS 266.106
    (b)
    or
    (e) and
    266.107
    (b) (1)
    or
    (e), the feed rate
    (lb/hr)
    of total
    chloride
    and
    chlorine,
    antimony,
    arsenic,
    barium,
    beryllium,
    cadmium, chromium,
    lead,
    mercury, silver,
    and thallium in each feedstream
    (hazardous waste,
    other
    fuels,
    industrial furnace feedstocks).
    (iv) For facilities complying with the Tier II or
    Tier III emission limits for metals or HC1 and Cl2
    (under SS 266.106
    (c)
    or
    (d) or 266.107(b) (2)
    or
    (c)),
    the estimated controlled
    (outlet of the air pollution
    control system)
    emissions rates of paticulate matter,
    each metal controlled by S 266.106,
    and HC1 and Cl2,
    and the following information to support such
    determinations:
    (A) The estimated air pollutiOn control system
    (APCS)
    removal efficiency for particulate matter, ‘HCl;
    Cl2, antimony, arsenic, barium, beryllium,
    cadmium,
    chromium,
    lead,
    mercury,
    silver,
    and
    thallium.
    (B) To estimate APCS removal efficiency, the owner
    or operator must use either best engineering judgment
    or the procedures prescribed in appendix IX of this
    part.
    (C)
    If best engineering judgment is used to
    132—222
    57
    estimate APCS removal efficiency, the basis for the
    judgment. Use of best engineering judgment must be in
    conformance with provisions of paragraph
    (b) (2) (ii) (D)
    of this section.
    (v) Determination of allowable emissions rates for
    HC1,
    Cl2, antimony, arsenic, barium, beryllium,
    cadmium,
    chromium,
    lead, mercury,
    silver, and thallium,
    and the following information to support such
    determinations:
    (A) For all facilities:
    (1) Physical stack height;
    (2) Good engineering practice stack height as
    defined by 40 CFR 51.100(u);
    (3) Maximum flue gas flow rate;
    (4) Maximum flue gas temperature;
    (5) Attach a US Geological Service topographic map
    (or eqivalent)
    showing the facility location and
    surrounding land within
    5 km of the facility.
    (6) Identify terrain type: complex or noncomplex;
    and
    (7) Identify land use: urban or rural.
    (B) For owners and operators using Tier III site
    specific dispersion modeling to determine allowable
    levels under
    5 266.106(d)
    or S 266.107(c),
    or adjusted
    Tier I feed rate screening limits under SS 266.106(e)
    or 266.107(e):
    (1) Dispersion model and version used;
    (2)
    Source of meterological data;
    (3) The dilution factor in micrograms per cubic
    meter per gram per second of emissions for the maximum
    annual average off—site
    (unless on—site is required)
    ground level concentration (MEl location); and
    (4)
    Indicate the MEl location on the map required
    under paragraph
    (b) (2) (v) (A) (5);
    (vi) For facilities complying with the Tier II or
    III emissions rate controls for metals or HC1 and Cl2,
    132—223
    58
    a comparison of the estimated controlled emissions
    rates determined under paragraph
    (b) (2) (iv) with the
    allowable emission rates determined under paragraph
    (b) (2) (v);
    (vii)
    For facilities complying with the Tier I
    (or
    adjusted Tier
    ‘I)
    feed rate screening limits
    f’or metals
    or total chloride and chlorine, a comparison of actual
    feed rates of each metal and total chlorine and
    chloride determined under paragraph (b) (2) (iii)
    of this
    section to the Tier
    I allowable feed rates;
    and
    (viii)
    For industrial furnaces that feed hazardous
    waste for any purpose other than solely as an
    ingredient
    (as defined by paragraph
    (a) (5) (ii) of this
    section)
    at any location other than the product
    discharge end of the device, documentation of
    compliance with the requirements of paragraphs
    (a) (5) (i)
    (A),
    (B), and
    (C)
    of this section.
    (ix) For industrial furnaces that recycle
    collected particulate matter
    (‘PM)
    back into the furnace
    and that will certify compliance with the metals
    emissions standards under paragraph
    (c) (3) (ii)
    (A)
    of
    this section:
    (A) The applicable particulate matter standard in
    lb/hr; and
    (B) The precompliance limit on the concentration
    of each metal in collected PM.
    (3)
    Limits on operating conditions. The owner and
    operator shall establish limits on the following
    parameters consistent with the determinations made
    under paragraph
    (b) (2)
    of this section and certify
    (under provisions of paragraph
    (b) (9)
    of this section)
    to the Director that the facility will operate within
    the limits during interim status when there is
    hazardous waste in the unit until revised certification
    of precompliance under paragraph
    (b) (8)
    of this section
    or certification of compliance under paragraph
    (c)
    of
    this section:
    (i) Feed rate of total hazardous waste and (unless
    complying with the Tier I or adjusted Tier I metals
    feed rate screening limits under
    5 266.106(b)
    or
    (e))
    pumpable hazardous waster
    (ii) Feed rate of each metal in the following feed
    streams;
    132—224
    59
    (A)
    Total feed streams, except that industrial
    furnaces that comply with the alternative metals
    implementation approach under paragraph
    (b) (4)
    of this
    section must specify limits on the concentration of
    each metal
    in collected particulate matter in lieu of
    feed rate limits for total feedstreams;
    (B)
    Total hazardous waste feed; and
    (C)
    Total pumpable hazardous waste feed, unless
    coif~plyingwith the Tier I or adjusted Tier
    I metals
    feed rate screening limits under S 266.106(b)
    or
    (e);
    (iii) Total feed rate of chlorine and chloride in
    total feed streams;
    (iv) Total feed rate of ash in total feed streams,
    except that the ash feed rate for cement kilns and
    light-weight aggregate kilns is not limited; and
    (v) Maximum production rate of the device in
    appropriate units when producing normal product.
    (4)
    Operating requirements for furnaces that
    recycle PM. Owners and operators of furnaces that
    recycle collected particulate matter
    (PM) back into the
    furnace and that will certify compliance with the
    metals emissions controls under paragraph
    (c) (3) (ii) (A)
    of this section must comply with the special operating
    requirements provided in “Alternative Methodology for
    Implementing Metals Controls” in appendix IX of this
    part.
    (5)
    Measurement of feed rates and production rate—
    (i) General requirements. Limits on each of the
    parameters specified in paragraph
    (b) (3)
    of this
    section (except for limits on metals concentrations in
    collected particulate matter
    (PM) for industrial
    furnaces that recycle collected PM)
    shall be
    established and continuously monitored under either of
    the following methods:
    (A) Instantaneous limits. A limit for a parameter
    may be established and continuously monitored on an
    instantaneous basis
    (i.e., the value that occurs at any
    time)
    not to be exceeded at any time; or
    (B) Hourly rolling average limits. A limit for a
    parameter may be established and continuously monitored
    on an hourly rolling average basis defined as follows:
    (1.) A continuous monitor is one which continuously
    132—225
    60
    samples the regulated parameter without interruption,
    and evaluates the detector response at least once each
    15 seconds, and computes and records the average value
    at
    least
    every
    60
    seconds.
    (2) An hourly rolling average is the arithmetic
    mean of the 60 most recent 1—minute average values
    recorded by the continuous monitoring system.
    (ii) ~Rolling average limits for carcinogenic
    metals and lead. Feed rate limits for the carcinogenic
    metals
    (arsenic, beryllium, cadmium, and chromium) and
    lead may be established either on an hourly rolling
    average basis as prescribed by paragraph (b) (5) (i) (B)
    or on
    (up to)
    a 24 hour rolling average basis. If the
    owner or operator elects to use an averaging period
    from
    2
    to
    24
    hours:
    (A) The feed rate of each metal shall be limited
    at any time to ten times the feed rate that would be
    allowed on a hourly rolling average basis;
    (B) The continuous monitor shall meat the
    following specifications:
    (1) A continuous monitor is one which continuously
    samples the regulated parameter without interruption,
    and evaluates the detector response at least once each
    15 seconds, and computes and records the average value
    at least every 60 seconds.
    (2) The rolling average for the selected averaging
    period is defined as the arithmetic mean of the most
    recent one hour block averages for the averaging
    period. A one hour block average is the arithmetic mean
    of
    the
    one
    minute
    averages
    recorded
    during
    the
    60—
    minute period beginning at one minute after the
    beginning of preceding clock hour.
    (iii) Feed rate limits for metals,
    total chloride
    and chlorine, and ash. Feed rate limits for metals,
    total chlorine and chloride, and ash are established
    and monitored by knowing the concentration of the
    substance
    (i.e., metals,
    chloride/chlorine,
    and ash)
    in
    each feedstream and the flow rate of the feedstream. To
    monitor the feed rate of these substances, the flow
    rate of each feedstream must be monitored under the
    continuous monitoring requirements of paragraphs
    (b) (5)
    (i)
    and
    (ii)
    of
    this
    section.
    (6)
    Public notice requirements at precompliance.
    On or before
    August
    21,
    1991
    the owner or operator
    132—226
    61
    must submit a notice with the following information for
    publication in a major local newspaper of general
    circulation and send a copy of the notice to the
    appropriate units of State and local government.
    The
    owner and operator must provide to the Director with
    the certification of precompliance evidence of
    submitting the notice for publication. The notice,
    which shall be entitled “Notice of Certification of
    Precompliance with Hazardous Waste Burning Requirements
    of 40 CFR 266.103(b)”, must include:
    (i) Name and address of the owner and operator of
    the facility as well as the location of the device
    burning hazardous waste;
    (ii) Date that the certification of precompliance
    is submitted to the Director;
    (iii)
    Brief description of the regulatory process
    required to comply with the interim status requirements
    of this section including required emissions testing to
    demonstrate conformance with emissions standards for
    organic compounds, particulate matter, metals, and HC1
    and Cl2
    (iv) Types and quantities of hazardous waste
    burned including, but not limited to,
    source, whether
    solids or liquids,
    as well as an appropriate
    description of the waste;
    (v) Type of device(s)
    in which the hazardous waste
    is burned including a physical description and maximum
    production rate of each device;
    (vi) Types and quantities of other fuels and
    industrial furnace feedstocks fed to each unit;
    (vii)
    Brief description of the basis for this
    certification of precompliance as specified in
    paragraph
    (b) (2)
    of this section;
    (viii) Locations where the operating record for
    the facility can be viewed and copied by interested
    parties.
    These locations shall at a minimum include:
    (A) The Agency office where the supporting
    documentation was submitted or another location
    designated by the Director; and
    (B) The facility site where the device is located;
    132—227
    62
    (ix) Notification of the establishment of a
    facility mailing list whereby interested parties shall
    notify the Agency that they wish to be placed on the
    mailing list to receive future information and notices
    about this facility; and
    (x) Location (mailing address)
    of the applicable
    EPA Regional Office, Hazardous Waste Division, where
    further information can be obtained, on EPA regulation
    of hazardous waste burning.
    (7) Monitoring other operating parameters.
    When
    the monitoring systems for the operating parameters
    listed in paragraphs
    (c) (1) (v through xiii)
    of this
    section are installed and operating in conformance with
    vendor specifications or (for CO,
    HC, and oxygen)
    specifications provided by appendix IX of this part,
    as
    appropriate, the parameters shall be continuously
    monitored and records shall be maintained in the
    operating record.
    (8) Revised certification of precompliance. The
    owner or operator may revise at any time the
    information and operating conditions documented under
    paragraphs
    (b)
    (2)
    and.
    (b)
    (3)
    of this section in the
    certification of precompliance by submitting a revised
    certification of precompliance under procedures
    provided by those paragraphs.
    (i) The public notice requirements of paragraph
    (b) (6)
    of this section do not apply to
    recertifications.
    (ii) The owner and operator must operate the
    facility within the limits established for the
    operating parameters under paragraph
    (b) (3)
    of this
    section until a revised certification is submitted
    under this paragraph or a certification of compliance
    is submitted under paragraph
    (c) of this section.
    (9) Certification of precompliance statement.
    The
    owner or operator must include the following signed
    statement with the certification of precompliance
    submitted to the Director:
    “I certify under penalty of law that this
    information was prepared under my direction or
    supervision in accordance with a system designed to
    ensure that qualified personnel ‘properly gathered and
    evaluated the information and supporting documentation.
    Copies of all emissions tests, dispersion modeling
    results and other information used to determine
    132—228
    63
    conformance with the requirements of 5 266.103(b)
    are
    available at the facility and can be obtained from the
    facility contact person listed above. Based on my
    inquiry of the person or persons who manages the
    facility, or those persons directly responsible for
    gathering the information, the information submitted
    is, to the best of my knowledge and belief,,true,
    accurate, and complete.
    I am aware that there are
    significant penalties for submitting false information,
    including the possibility of fine and imprisonment for
    kndwing violations.
    I also acknowledge that the operating limits
    established in this certification pursuant to 5
    266.103(b)
    (3) and
    (4)
    are enforceable limits at which
    the facility can legally operate during interim status
    until:
    (1) A revised certification of precompliance
    is
    submitted,
    (2)
    a certification of compliance is
    submitted,
    or
    (3) an operating permit is issued.”
    The USEPA rules appear to have a major substantive error.
    As
    is
    explained
    at
    56
    Fed.
    Reg.
    7204,
    this
    is mainly a HSWA-
    driven rulemaking.
    Therefore,
    USEPA administers its rules in
    authorized states pending authorization of the program cOmponent.
    However, the USEPA rule. is actually worded so that the “State
    Director”
    is supposed to administer the certifications of
    precomnpliance under the USEPA rules.
    Even in a state which has
    adopted the rules before the August 21,
    1991 deadline, that state
    would be implementing its own rules not the USEPA’s.
    Yet the
    USEPA rules do not allow the Regional Administrator to administer
    these provisions.
    The Board requested comment as to how these
    rules were supposed to work, but received no response.
    The USEPA
    rule needs to be read as meaning “Regional Administrator” for the
    rule to make any sense.
    Certification of Compliance
    40 CFR 266.103(c)
    726.203(c)
    governs the “certification of
    compliance”, which is generally due by August 21,
    1992.
    The
    Board has adopted these rules.
    This will mean that a
    certification of compliance will have to be directed to IEPA.
    These rules suffer from the same problems as 40 CFR 266.103(b).
    However,
    if USEPA were to expect the certification tO come to it
    directly until the rules are authorized,
    there would be a dual
    certification requirement in Illinois.
    40 CFR 266.103(c) (1) requires the operator to establish
    limits on certain parameters based on a compliance test.
    The
    operator notifies the State of these limits, which then function
    as permit limits pending action by the State.
    40 CFR
    266.103(c)(l)(iii)
    726.203(O)(1)(C)
    reads as follows:
    132—229
    64
    Total feed rate of chlorine and chloride in total feed
    streams;
    As is discussed above,
    at other points in the rules, USEPA
    refers to “total chlorine and ‘chloride”, the term the Board has
    used.
    This however, puts three “totals” into this provision.
    Section 726.203(c) (‘1) (C)
    reads as follows:
    Total feed rate of total chlorine and chloride in total
    feçd streams;
    40 CFR 266.103(c)(3)(ii)(B)
    726.203(c)(3)(B)(ii)
    governs
    compliance testi,ng for interim status facilities.
    It requires
    analysis for metals content to be sufficient to determine “if
    changes in metals content may affect the ‘ability of the facility
    to meet the metals emissions standards...”
    There are two
    problems with this language.
    First,
    as “may”
    is defined above,
    “may affect” would seem tO mean “may or’ may not affect”,
    resulting in a non—rule.
    The Board has changed “may affect” to
    “affect”, which seems to say what USEPA intended.
    Second,
    “facility” should probably be changed to “unit”,
    since the emissions standards would, apply to each unit on a
    facility.
    In 40 CFR 266.103(c) (4) (ii) (B), USEPA has a list which
    exceeds the four levels of subdivision allowed in the
    Administrative Code.
    The subsections have therefore been
    collapsed into Section 726.203(c) (4) (B) (ii).
    In 40 CFR 266.103(c)(4)(ii)(B)(5)
    726.2003(c)(4)(B)(ii),
    there is a reference to the “toxicity equivalency factor”.
    The
    implied definition is in Section 726.204(e) (2), which the Board
    has referenced in the definitions Section
    726.200(b).
    40 CFR 266.103(c) (4) (iv) (B) and
    (C) also have excess levels
    of subdivision.
    However, the definitions have been moved to
    Section 726.200(g),
    as discussed above.
    The header for 40 CFR 266.103(c) (4) (iv) (D)
    726.203(c)
    (4) (D) (iv)
    has a “total chloride and chlorine” which
    the Board has corrected to “total chlorine and chloride”.
    40 CFR 266.103(c)(4)(v)
    726.103(c)(4)(E)
    specifies the
    form for the certificate of compliance.
    The second paragraph of
    the conditions refers to “operating conditions established in
    this certification pursuant to S 266.103(c)(4)(v)”.
    There are
    two minor problems with this wording.’
    First,’ the quoted Section
    establishes. “operating limits”, the phrase the Board has used.
    Second,
    “in this certification” doesn’t seem to make any sense at
    all.
    The Board has to omitted it,
    so that the provision reads:
    132—230
    65
    I also acknowledge that the operating limits
    established pursuant to 35
    Ill. Adm. Code
    726.203(c) (4) (D) are enforceable limits at which the
    facility can legally operate during interim status
    until a revised certification of compliance is
    submitted.
    40 CFR 266.103(c)(5)
    726.203(c)(5))
    provides that “a
    conditioned gas monitoring system may be used...” for HC under
    certain conditions.
    This appears to be a true option which the
    operator may exercise.
    40 CFR 266.103(c) (7) (B) authorizes case—by—case extensions
    for the compliance times for the certification of compliance.
    The Board has moved this to Section 726.219,
    since it exceeds the
    available levels of subdivision in the Administrative Code, and
    since it is potentially more complex at the State level.
    40 CFR 266.103(h)
    governs fugitive emissions at interim
    status BIF5.
    Subsection
    (h) (3)
    allows:
    “Art alternate means of
    control that the owner or operator can demonstrate provide
    fugitive emissions control equivalent”to negative pressure.
    There are two problems with this language.
    First, the USEPA
    language is subject to the interpretation that the operator can
    unilaterally apply the alternate means
    if he believes he “can
    demonstrate” equivalency.
    The Board has.dropped the “can” to
    make
    it
    clear
    that
    the
    operator
    must
    actually
    make this
    demonstration in the context of a permit application.
    Second,
    “provide”
    is not grammatically correct.
    It should be either
    demonstrates “provides” or “to provide”.
    The Board has adopted
    the
    former.
    40 CFR 266.103(i)
    includes the “changes in
    ...
    deviate from”
    language discussed above in connection Section 726.202(e) (7) (C).
    The
    Board
    has
    deleted
    the
    “changes
    in”
    consistent
    with
    that
    discussion.
    40
    CFR
    266.103(j)
    (1)
    (i) has a “total chloride and chlorine”
    which the Board has corrected in Section 726.203(j) (1) (A).
    Section 726.204
    Standards for Organic Emissions
    This Section is drawn from 40 CFR 266.104, which was adopted
    at 56
    Fed. Reg.
    7206, February 21,
    1991.
    The USEPA rule was also
    corrected as noted above.
    This Section sets a “destruction and
    removal efficiency”
    (“DRE”) standard for,”p~incipalorqanic
    hazardous constituents”
    (“POHCs”).
    This is similar to Section
    724.443,
    governing
    incinerators.
    The
    Section
    also
    includes
    standards for carbon monoxide
    (CO), hydrocarbons
    (HC),
    dioxins
    and furans.
    The formula ~.n40 CFR 266.104(a) (1) was corrected at 56 Fed.
    132—231
    66
    Reg. 32688.
    As is discussed in general above, the Board has
    further simplified the formula to avoid future errors.
    40 CFR 266.104(a)(2)
    726.204(a)(2))
    governs the selection
    of POHCs.
    The Agency selects the POHC5 based on the hazardous
    constituents list in 35 Ill. Adm. Code 721.Appendix H
    40
    CFR
    261, App. VIII
    and the constituents present in the waste feed.
    The Agency normally selects as POHCs hazardous constituents which
    are in the waste feed.
    However, the subsection goes on to
    provide:
    However,
    if the applicant demonstrates to the
    Regional
    Administrator’s satisfaction that a compound not listed
    in appendix VIII or not present in the normal waste
    feed is a suitable indicator of compliance with the DRE
    requirements of this section, that compound may be
    designated as a POHC.
    Such POHC5 need not be toxic or
    organic compounds.
    There are several potential problems with this language.
    First,
    the designation of alternate POHC5 appears to be triggered only
    on “application”.
    This seems to mean that the permit writer
    cannot add alternate POHC5 on his own initiative.
    This would
    foreclose regulation of toxic materials formed in the combustion
    process, unless the process is initiated by the operator.
    The
    Board has followed this formulation.
    The alternative would be to
    word this as “If the Agency determines...”, without necessarily
    requiring an application.
    The Board solicited comment on the
    alternative,
    but
    received
    no
    response.
    Second, while the USEPA rule is specific that the “State
    Director”
    is supposed to make the basic POHC determination, the
    rule is worded such that only the “Regional Administrator” can
    designate alternate POHC5.
    It is possible that USEPA intends
    that the Regional Administrator should retain this authority.
    However, there is no specific application process set up.
    The
    Board believes this is an editorial error by USEPA, and that
    USEPA intends to delegate this to the State also.
    The Board has
    therefore substituted “Agency” for “Regional Administrator”.
    The
    Board solicited comment, but received no response.
    Third, the applicant must make this demonstration “to the
    Regional Administrator’s satisfaction”.
    There are two problems
    with this formulation.
    It is worded:
    as a subjective standard;
    and,
    as a personal decision by the Regional Administrator.
    The
    Board has reworded this to make it a collective decision by the
    Agency,
    based on an objective standard.
    As adopted, the
    applicant would just “demonstrate to the Agency”.
    Fourth, while normal POHC5 are both listed
    and
    present in
    the
    feed,
    the
    conditions
    for
    the
    alternative
    are
    worded
    as
    alternatives:
    “a compound not listed in appendix VIII or not
    132—232
    67
    present
    in
    the
    normal
    waste
    feed”.
    In
    other
    words,
    an
    alternative could be:
    an unlisted constituent which is in the
    waste;
    a listed constituent which is not in the feed;
    or,
    a
    constituent which is neither listed nor in the feed.
    Fifth,
    the USEPA rule provides that the alternative “may be”
    designated as a POHC if the requirements are met.
    The Board
    believes.that,
    if the applicant makes the required showing, he is
    entitled
    to
    the
    alternative
    POHC.
    The
    Board
    has
    therefore
    worded
    this as “must be”.
    The language adopted by the Board in Section 726.204(a) (2)
    is as follows:
    However,
    if the applicant demonstrates to the Agency
    that
    a
    compound
    not
    listed
    in
    35
    Ill.
    Adm.
    Code
    721.Appendix H or not present in the normal waste feed
    is
    a
    suitable
    indicator
    of
    compliance
    with
    the
    DRE
    requirements of this Section, that compound must be
    designated as a POHC.
    Such POHC5 need not be toxic or
    organic compounds.
    40
    CFR
    266.104(c)
    (1)
    allows
    for
    an
    alternative
    CO
    standard.
    it
    provides
    that
    emissions
    “may
    exceed”
    the
    100
    ppmv
    limit
    under
    certain
    circumstances.
    This
    appears
    to
    be
    a
    true
    option
    residing
    in
    the
    operator.
    40
    CFR
    266.104(f)
    726.204(f)’
    allows
    an
    alternative
    HC
    limit
    for
    furnaces
    with
    organic
    matter
    in
    raw
    material.
    The
    Director
    may
    establish
    an
    alternative
    HC
    limit
    on
    a case—by—case basis
    (under a part B permit proceeding)
    at a level that ensures that flue gas HC (and’CO)
    concentrations
    when
    burning hazardous waste are not
    greater
    than
    when
    not
    burning
    hazardous
    waste
    (the
    baseline
    HC
    level)
    provided...
    The Board has rendered this as the “Agency shall establish
    an alternative...”
    If the applicant makes the required showing,
    he
    is
    entitled
    to
    the
    alternative.
    40 CFR 266.104(f)(3)(iii)(A)
    726.204(f)(3)(C)(i))
    provides
    that:
    Sampling
    and
    analysis
    of
    organic
    emissions
    shall
    be
    conducted using procedures prescribed by the Director.
    This
    applies
    to
    the
    alternative
    HC
    limit.
    It
    prescribes
    sampling
    and analysis to be conducted during a trial burn.
    It is unclear
    as to the procedural’ context in which the Director is to make
    this
    determination.
    The
    Board
    assumes
    a
    reference
    to
    new
    40
    CFR
    270.22(a)
    is intended.
    This would be equivalent to 35 Ill. Adm.
    132—233
    68
    Code 703.232(d).
    The Board requested comment as to whether this
    is
    correct,
    but received no response.
    40
    CFR
    266.104(f)
    (3) (iv)
    (A)
    and
    (B)
    make
    reference
    to
    the
    “noncarcinogenic” and “carcinogenic” compounds in Appendix IV an
    V
    Appendix
    D
    and
    E.
    As
    is
    discussed
    above,
    cárcinogenicity
    of
    non—metals
    is
    determined
    on
    a
    case—by—case
    basis.
    40 CFR 266.104(g)
    provides that cement kilns “may comply”
    with the CO and HC limits “by monitoring in the by-pass duct”
    under c~rtainconditions.
    This appears” to be a true option for
    the operator.
    Section 726.205
    PM Standards
    This Section is drawn from 40 CFR 266.105, which was adopted
    at
    56
    Fed.
    Req.
    7206,
    February
    21,
    1991.
    Section
    726.206
    Metals
    Standards
    This Section is drawn from 40 CFR 266.106, which was adopted
    at
    5.6 Fed. Reg. 7206, February 21,
    1991.
    It was also corrected
    as described above.
    This Section specifies emissions standards
    for
    metals.
    40 CFR 266.106(b) (1) deals with “noncarcinogenic metals”,
    which
    are
    implicitly
    defined as “antimony, barium,
    lead, mercury,
    thallium
    and
    silver”.
    These
    have been defined in Section
    726.200(g).
    40
    CFR
    266.106(b)
    (1) (i)
    and
    (ii)
    726.206(b)(1)(A)
    and
    (B))
    contain
    cross
    references
    to
    definitions
    of
    “hourly
    rolling
    average”.
    As
    is
    discussed
    in
    general
    above,
    the
    Board
    has
    moved
    these
    definitions
    to
    Section
    726.200(g),
    which
    is
    cited
    here
    also.
    40 CFR 266.106(b) (2)
    deals with “carcinogenic metals”, which
    are
    implicitly
    defined
    as “arsenic, cadmium, beryllium and
    chromium”.
    These have been defined in Section 726.200(g).
    40 CFR 266.106(b) (2)
    includes a formula which limits the
    emissions
    of
    carcinogenic
    metals.
    The
    Board
    has
    changed
    the
    format of the formula along the lines discussed in general above.
    This reflects a substantive change to the formula which was made
    in
    the
    July
    17
    Federal
    Register
    correOtion
    (““
    to
    “?“).
    40
    CFR
    266.106(b)(3)
    726.206(b)(3))
    defines
    the
    “terrain
    adjusted effective stack height”
    (“TESH”).
    The definition of the
    acronym and “good engineering practice stack height” have been
    moved
    to
    Section
    726.200(g).
    40
    CFR
    266.106(b)(3)(iii)
    726.206(b)(3)(C)
    reads
    as
    132—234
    69
    follows:
    If
    the
    TESH
    for
    a
    particular
    facility
    is
    not
    listed
    in
    the
    table
    in
    the
    appendices,
    the
    nearest
    lower
    TESH
    listed
    in
    the
    table
    shall
    be
    used.
    If
    the TESH is four
    meters or less,
    a value of four meters shall be used.
    There
    are
    several
    potential
    problems
    with
    this
    language.
    The
    first
    is
    the
    reference
    to
    “the
    appendices”.
    The
    Board
    believes
    this
    is
    a
    reference
    to
    Appendices
    I
    through
    III
    A
    through
    C.
    The second problem is the reference to “tables”.
    This may
    be prohibited under the Administrative Code,
    since a “Table” is a
    portion
    of
    a
    rule
    which
    is
    different
    than
    an
    “Appendix”.
    Third,
    the reference to a “particular facility” would lead
    one to expect the “appendices” to list facilities by name.
    This
    is
    not
    the
    case,
    at
    least
    with
    Appendices
    I
    —
    III
    A
    —
    C.
    Indeed,
    these
    do
    not
    contain
    a
    listing
    of
    “TESHs”
    at
    all.
    Rather,
    it
    is a listing of “feed rates and emissions screening
    limits” for various values of TESH.
    The ‘Board is unable to find
    any tables
    in the Appendices which list TESH as the output.
    Moreover, any such table would contradict the formula in 40 CFR
    266.106(b)(3)(i)
    726.206(b)(3)(A)),
    which gives a value’of TESH
    based on physical stack height, plume rise and terrain rise.
    The
    Board therefore believes that this paragraph is totally wrong.
    One possibility, which the Board assumes to be the case,
    is that
    the paragraph is telling people which value of the “feed rates
    and
    emissions
    screening
    limits”
    to
    use
    for
    various
    values
    of
    TESH.7
    The
    Board
    has
    redrafted
    40
    CFR
    266.106(b)
    (3) (iii)
    726.206(b)
    (3) (C)
    to
    read
    as
    follows:
    If
    the
    TESH
    calculated
    pursuant
    to
    subsection
    (b) (3)
    (A)
    is
    not
    listed
    in
    Appendices
    A
    -
    C, the values for the
    nearest lower TESH listed in the table must be used.
    If
    the
    TESH
    is
    four
    meters
    or
    less,
    a
    value
    based
    on
    four
    meters
    must
    be
    used.
    40
    CFR
    266.106(b)
    (6)
    gives
    a
    formula
    for
    the
    “worst
    case
    stack” to be used for compliance purposes if there are multiple
    stacks.
    The adopted rule reflects major revisions in the July 17
    correction.
    40
    CFR
    266.106(b)
    (7)
    specifies
    conditions
    under
    which
    facilities
    must
    use
    stricter
    “Tier
    III”
    screening
    limits.
    40
    CFR
    266.106(b)
    (7) (v)
    726.206(b)
    (7) (E))
    requires
    “Tier
    ‘III”
    limits
    if:
    7The other possibility, which the Board is not following,
    is
    that this paragraph is
    a relic from an earlier draft,
    which may
    have
    had
    a
    table
    instead
    of
    the
    formula.
    132—235
    70
    The
    Director
    determines
    that
    standards
    based
    on
    site—
    specific
    dispersion
    modeling
    are
    required.
    This
    language
    was
    present
    in
    the
    proposal.
    The
    Board
    indicated
    it
    would
    delete
    it
    unless
    commenters
    provided
    the
    Board
    with
    meaningful
    criteria
    for
    this decision.
    The Board received no
    response,
    and
    has
    therefore deleted this provision.
    40 CFR 266.106(d) governs the “Tier III site—specific risk
    assessment”.
    40
    CFR
    266.106(d)(2)
    726.206(d)(2)
    reference
    the
    RACs
    anc~RSDs
    of
    Appendices
    IV
    and
    V
    D
    and
    E.
    These
    are
    specified
    as
    “for
    purposes
    of
    this
    rule”.
    This is ambiguous.
    The Board believes that “Subpart”
    is intended, and has used that
    term
    instead.
    The
    formula
    in
    40
    CFR
    266.106(d)
    (3) was corrected on July
    17.
    However,
    in
    attempting
    to correct minor errors in
    appearance,
    USEPA
    has
    made
    a
    major
    error
    in
    the
    formula
    as
    corrected.
    This
    amply
    illustrates
    the futility of attempting to
    write the formulas in this format.
    40 CFR 266.106(e)
    reads as follows:
    Adjusted
    Tier
    I
    feed
    rate
    screening
    limits.
    The
    owner
    or operator may adjust the feed rate’ screening limits
    provided by Appendix I
    ...
    to account for site—specific
    dispersion modeling.
    Under this approach, the adjusted
    feed
    rate
    screening
    limit
    for
    a
    metal
    is
    determined
    by
    back—calculating
    from
    the
    acceptable
    ambient
    levels
    provided
    by
    Appendices
    IV
    and
    V
    ...
    using dispersion
    modeling to determine the maximum allowable emission
    rate.
    This emission rate becomes the adjusted Tier I
    feed rate screening limit.
    The feed rate screening
    limits for carcinogenic metals are implemented as
    prescribed
    in
    paragraph
    (b) (2)...
    The
    USEPA
    rule
    is
    ambiguous
    as
    to
    the
    procedural
    context
    for
    this
    adjustment.
    The
    Board
    believes
    that
    this
    provision
    is
    giving
    the
    operator
    an
    option
    to
    use
    alternative
    calculations
    in
    filing
    the
    Part
    B
    application.
    The
    Agency
    has
    no
    basis
    to
    object
    to this.
    However, once the permit is issued, the operator cannot
    change the method of calculation without filing a new permit
    application.
    With this understanding, the language is
    acceptable,
    and appears in substantially the same form in Section
    726.206(e).
    40 CFR 266.106(f)(1)
    726.206(f)(1)
    reads as follows:
    The
    Director
    may
    approve
    on
    a
    case—by—case
    basis
    approaches
    to
    implement
    the Tier II or Tier III metals
    emission
    limits
    provided
    by
    paragraphs
    (c)
    or
    (d)
    of
    this
    section
    alterna’tive
    to
    monitoring
    the
    feed
    rate
    of
    132—236
    71
    metals
    in
    each
    feedstream.
    The
    rule
    then
    goes
    on
    to
    specify
    how
    the
    generally
    applicable
    rules are to be modified under the alternative approach.
    The
    Board believes that this forms the criterion under which the
    Agency
    is
    to
    decide
    whether
    to
    approve
    the
    alternative.
    Consistent
    with
    this,
    the
    Board
    has
    added.a
    citation
    to
    subsection
    (f)
    (2).
    The
    language
    is
    as
    follows:
    Pursuant to subsection
    (f) (2), the Agency shall approve
    on
    ‘a
    case—by—case
    basis
    approaches
    to
    implement
    the
    Tier
    II
    or
    Tier
    III
    metals
    emission
    limits
    provided
    by
    subsections
    (c)
    or
    (d)
    alternative
    to
    monitoring
    the
    feed rate of metals in each feedstream.
    40
    CFR
    266.106(h)
    contains
    references
    to
    Appendices
    X
    and
    IX,
    in that order.
    These correspond with Appendices 3 and I.
    It
    is’unusual to cite numbered documents out of order, raising the
    possibility
    of
    a
    typo.
    However,
    the
    citations
    appear
    to
    be
    correct.
    The Board has followed the. federal language.
    Section
    726.207
    Standards
    for
    HC1
    and
    Cl2
    This
    Section
    is
    drawn
    from
    40
    CFR
    266.107,
    which
    was
    adopted
    at
    56
    Fed.
    Req.
    7206,
    February
    21,
    1991.
    The
    Section
    was
    also
    corrected as described above.
    This Section sets emission
    standards
    for
    hydrogen
    chloride
    and
    chlorine
    gas.
    40
    CFR
    266.207(e)
    provides
    for
    adjusted
    Tier
    I
    feed
    rate
    screening
    limits.
    The
    citation
    to
    “Appendix
    I” was corrected to
    “Appendix
    II”
    Appendix
    B
    in
    the
    July
    17
    corrections.
    40
    CFR
    266.207(e)
    provides
    that
    “The
    owner
    or
    operator
    may
    adjust
    the
    feed
    rate
    screening
    limit
    provided
    by
    Appendix
    B...”
    This
    poses
    the
    same
    problems
    as
    discussed
    above
    in
    connection
    with
    40
    CFR
    266.106(e)
    726.207(e).
    The
    Board
    has
    left
    this
    as
    “may adjust”, with the same understanding as discussed above.
    Section
    726.208
    Small
    Quantity
    Exemption
    This Section is drawn from 40’ CFR 266.208, which was adopted
    at
    56
    Fed.
    Reg.
    7206,’ February 21,
    1991.
    It was also corrected
    as
    discussed
    above.
    This
    Section creates an exemption for on—
    site
    burning
    by
    small
    quantity
    generators.
    On
    July
    17,
    ,USEPA corrected 40 CFR 266.108(a)
    to create an
    exemption
    from
    the
    entire
    Subpart.
    40
    CFR
    266.108(a)
    (1)
    includes a table which gives exempt
    quantities
    as
    a
    function
    of
    TESH.
    The
    table
    has
    been
    moved
    to
    Table
    A,
    which
    will
    appear
    after
    the
    Appendices.
    132—23 7
    72
    40 CFR 266.108(c)
    includes a formula which’ was corrected on
    July 17.
    The correction specifies that the
    ““
    symbol should be
    changed to
    “?“.
    However, although the February 21 Federal
    Register is only marginally legible,
    it appears to be correOt.
    Moreover, the disks provided by USEPA have this as
    “?“.~
    The
    Board has adopted this as
    “?“.
    USEPA has not corrected the major
    error
    in the formula, which is the alignment of the
    “?
    1.0”.
    The
    Board has avoided this problem altogether by reformatting the
    formulas, as discussed above.
    40’CFR 266.108(d)
    726.208(d)
    requires exempt facilities to
    notify USEPA.
    The Board has required the notice to be directed
    to the Agency.
    40 CFR 266.108(d)(3)
    726.208(d)(3)
    requires the exempt
    operator to notify the appropriate agency of the “The maximum
    quantity of hazardous waste that the facility may burn per month
    as provided by...”
    The Board has rendered this as “is allowed to
    burn”.
    Section 726.209
    Low Risk Waste Exemption
    This Section is drawn from 40 CFR 266.109, which was adopted
    at 56 Fed.
    Req.
    7206, February 21,
    1991.
    This Section was also
    corrected as noted abov~e;
    It provides “waiver” mechanisms for
    “low risk waste”.
    If the “waivers” are granted, the unit is
    exempt from the DRE and/or PM standards.
    An initial question centers on whether the “waivers” are in
    the nature of permit decisions which the Agency can make pursuant
    to Section 39 of the Act, or whether they are decisions which are
    reserved to the Board.
    A general discussion of the factors the
    Board considers in making this type of determination appears in
    the introduction to this Opinion.
    One consideration is whether this is, on the one hand, truly
    a “waiver” of a Board rule, which would require some form of
    Board action,
    or, on the other hand,
    merely a permit decision
    which requires the applicant to comply with an alternative Board
    regulation.
    The Board does not believe that the “waivers” in the
    USEPA rules amount to waivers which would require Board action.
    To receive an exemption, the operator makes a technical showing
    of a type which is ordinarily received by the Agency in permit
    applications.
    The showing establishes that there is no need for
    8One possibility, which the Board
    is not following,
    is that
    USEPA
    intended
    to change this from
    “?“
    to
    ““,
    but stated the
    correction backwards.
    However,
    if the formula were applied to a
    single stack burning the allowable quantity, Ci/Li would equal
    1.
    Since the facility would be burning an “allowable quantity”,
    “?“
    would be correct.
    132—238
    73
    compliance
    with
    DRE
    and
    PM
    standards.
    The
    operator
    is
    required
    to
    comply
    with
    conditions,
    specified
    by
    Board
    rule,
    which
    operate
    in
    lieu
    of
    these
    standards.
    Moreover,
    the
    operator
    remains
    subject
    to
    the
    rest
    of
    the
    regulatory
    program,
    including
    other
    standards and the permit requirement.
    The Board therefore has
    adopted these “waivers” as Agency permit decisions.
    One of the criteria for’exemption from the DRE standard.is
    that the BIF must primarily burn fossil or similar fuel.
    40 CFR
    266.109(a) (1) (i)
    reads as follows:
    A minimum of 50 percent of fuel fired to the device
    shall be fossil fuel, fuels derived from fossil fuel,
    tall oil, or,
    if approved by the Director on a case-by-
    case basis,
    other nonhazardous fuel with combustion
    characteristics comparable to fossil fuel.
    The standard for the case—by—case decision is “nonhazardous fuel
    with combustion characteristics comparable to fossil fuel”.
    This
    is again a technical determination which is appropriate for
    Agency decision in the context of permit issuance.
    Section
    726.209 (a) (1) (A) reads as follows:
    A minimum of 50 percent of fuel fired to the device
    must be fossil fuel, fuels derived from fossil fuel,
    tall oil
    or,
    if approved by the Agency on a case-by-
    case basis,
    other nonhazardous fuel with combustion
    characteristics comparable to ‘fossil fuel.
    The Section goes on to define the terms used in this
    provision.
    These were the subject of corrections on both July 17
    and August 27,
    1991.
    40 CFR 266.109(a)(2)(iv)(B)
    726.209(a)(2)(D)(ii)
    contains
    a formula in narrative form:
    For the carcinogenic compounds listed in Appendix
    E,
    the sum for all constituents of the ratios of the
    actual ground level concentration to the level
    established in Appendix
    E) cannot exceed 1.0;
    This could be written like similar provisions, as follows:
    StJN(Ai/Li) ?
    1.0
    where:
    SUM(Xi) means the sum of the values of X for each
    carcinogen
    i, from
    i =
    1 to n.
    n means the number of carcinogenic compounds;
    132—239
    7.4
    Ai
    =
    Actual
    ground
    level
    concentration
    of
    carcinogen
    ~I~~t~
    Li
    =
    Level established in Appendix E for carcinogen
    ,,
    i~~
    .
    The
    Board
    has
    adopted
    the
    formula
    format.
    Section
    726.210
    Waiver
    of
    DRE
    trial
    .Burn
    for
    Boilers
    This Section is drawn from 40 CFR ‘266.110, which was adopted
    at 56 Fed.
    Reg.
    7206, February 21,
    1991.
    This Section was also
    corrected as discussed above.
    This Section contains a “waiver” of the trial burn
    requirement and DRE standard for boilers.
    This is rather similar
    to the preceding Section.
    The “waiver” is again a permit-type
    decision in which the Agency applies an alternative set of Board
    regulations after reviewing a technical submission in a permit
    application.
    No Board action is required for the “waiver”.
    40 CFR 266.110(f) (1)
    limits hazardous waste fuel burned
    under the waiver to that with a viscosity less than “300 SSU”.
    The Board has defined this
    (as “Saybolt Seconds Universal”)
    in
    Section 726.200(g).
    Section 726.211
    Standards for Direct Transfer
    This Section is drawn from 40 CFR 266.111, which was adopted
    at 56 Fed. Reg.
    7206, February 21,
    1991.
    It was corrected in the
    August 27 Federal Register.
    This Section governs the direct
    transfer of hazardous waste from a vehicle to a BIF, without a
    storage unit intervening.
    40 CFR 266.111(c) (2)
    reads as follows:
    Direct transfer equipment used for pumpable hazardous
    waste must always be closed, except’when necessary to
    add or remove the waste, and must not be opened,
    handled or stored in a manner that
    may
    cause any
    rupture or leak.
    As is discussed above,
    the Board has attempted to restrict the
    use of “may” to situations in which the operator or Agency has an
    option.
    This usage does not fit that mold.
    The Board has
    rendered this as “could”, which appears to mean the same thing.
    40 CFR 266.111(d) (2) was substantially amended in the August
    27 corrections.
    This added a reference to NFPA 30, the
    “Flammable and Combustible Liquids Code”.
    Rather than repeat the
    bibliographical information, the Board has just cited to the
    preexisting reference in 35 Ill. Adm. Code 720.111.
    132—240
    75
    Section
    726.212
    Residues
    This
    Section
    is
    drawn
    from
    40
    CFR
    266.112,
    which
    was
    adopted
    at 56 Fed. Reg.
    7206, February 21,1991.
    The Section was the
    subject of extensive modification in the August 27 corrections
    discussed above.
    The Section number was corrected in the July 17
    corrections.
    This
    Section
    regulates
    residues
    from
    BIFS.
    Section 726.219
    Extens’ions of Time
    This Section was drawn from 40 CFR 266.103(c) (7) (ii), which
    was adopted at 56
    Fed. Reg.
    7206, February 21,
    1991.
    The Section
    was also subject to the correction in the July 17,
    1991,
    Federal
    Register, as discussed
    above.
    This Section allows a case—by—case
    extension of time to
    file
    the certification of compliance
    pursuant to Section 726.203(c)
    266.103(c)).
    These provisions
    have been moved out of
    the
    main text, since the USEPA text uses
    levels
    of
    subdivision
    which
    are
    not
    allowed
    in
    the
    Administrative
    Code.
    Moreover,
    this
    procedural
    text
    could
    become
    more
    complex
    at
    the
    State
    level.
    This Section poses a question as to whether it is the Board
    or
    Agency
    which
    should
    be
    able
    to
    grant
    this
    extension
    of
    time.
    The general factors which the Board considers in making this type
    of decision are discussed above,
    in the’ general introduction to
    this
    Opinion.
    This decision amounts to an extension of time to file a
    document which’functions in lieu of’a permit.
    Moreover,
    it
    amounts to a temporary variance from the requirement to comply
    with the HC standards.
    This clearly requires a Board action.
    The variance procedures of Title IX of the Act are an appropriate
    procedural
    mechanism
    for
    granting
    a
    temporary
    extension
    of
    a
    compliance deadline.
    Indeed, this provision is similar to the
    extension of time to file a Part A application under 35 Ill. Adm.
    Code 703.150(c), which requires a variance petition.
    The Board has therefore required a person seeking extension
    of time for filing the certification of compliance to file a RCRA
    variance
    petition
    pursuant
    to
    35
    Ill.
    Adm.
    Code
    104.
    The
    Board
    will
    grant
    the
    variance
    if
    the
    petitioner
    meets
    the
    requirements
    for the extension derived from the USEPA rules, and otherwise
    meets
    the
    requirements
    for
    a
    variance.
    The
    following
    is
    the
    text
    of
    Section
    726.219:
    Section
    726.219
    Extensions
    of
    Time
    The owner or operator may request a case—by—case
    extension of time to extend any time limit provided by
    Section 726.203(c).
    The operator shall file a petition
    13
    2—24
    1
    76
    for a
    RCRA
    variance pursuant to 35 Ill. Adm. Code 104.
    The Board will grant the variance if compliance with
    the time limit is not practicable for reasons beyond
    the control of the owner or operator.
    a)
    In granting an extension, the Board will apply
    condition’s as the facts warrant to ensure timely
    compliance with the requirements of Section
    726.203 and that the facility operates in a manner
    that
    does
    not
    pose
    a
    hazard
    to
    human
    health
    and
    the
    environment;
    b)
    When
    an
    owner
    and
    operator
    request
    an
    extension
    of
    time
    to
    enable
    them
    to
    obtain
    a
    RCRA
    permit
    because the facility cannot meet the HC limit of
    Section 726.204(c):
    1)
    The
    Board
    will,
    in
    considering
    whether
    to
    grant
    the
    extension:
    A)
    Determine
    whether
    the
    owner
    and
    operator
    have
    submitted
    ‘in
    a
    timely
    manner
    a
    complete
    Part
    B.. permit
    application
    that
    includes information required under 35
    Ill’~. ‘Adm. Code 703.208(b);
    and
    B)
    Consider whether the owner and operator
    have
    made
    a
    good
    faith
    effort
    to
    certify
    compliance with .all other emission
    controls, including the controls on
    dioxins and furans of Section 726.204(e)
    and
    the
    controls
    on
    PM,
    metals
    and
    HC1/chlOrine gas.
    2)
    If
    an
    extension
    is
    granted,
    the
    Board
    will,
    as
    a
    condition
    of
    the
    extension,
    require
    the
    facility
    to
    operate
    under
    flue
    gas
    concentration limits on CO and HC that, based
    on
    available
    information,
    including
    information
    in
    the
    Part
    B
    permit
    application,
    are
    baseline
    CO
    and
    MC
    levels
    as
    defined
    by
    Section 726.204(f) (1).
    BOARD
    NOTE:
    Derived from 40 CFR
    266.103(c)
    (7) (ii),
    adopted
    at
    56
    Fed.
    Reg.
    7206, February 21,
    1991;
    and 56 Fed.
    Req.
    32688,
    July
    17,
    1991.
    As is discussed in the general introduction to this Subpart,
    the BIF rules are mainly HSWA-driven.
    Ordinarily such rules
    would be administered by USEPA up to the point of authorization.
    However, USEPA’s rules appear to allow only the “State Director”
    132—242
    77
    to grant these waivers.
    If USEPA does intend to retain control,
    this provision would require ‘both a Board variance and USEPA
    approval
    prior
    to
    authorization.
    Appendix A
    Tier
    I and II Feed Rate and Emissions Screening
    Limits
    This Appendix was drawn from 40 CFR 266, Appendix I, which
    was adopted at
    5.6 Fed.
    Req. 7206, February 21,
    1991.
    The
    Appendix was also subject to the corrections in the July 17 and
    August 27,
    1991,
    Federal Registers,
    as discussed above.
    There is possible confusion in the numbering between the
    USEPA and Board Appendices.
    USEPA Appendix I corresponds with
    Board Appendix A.
    USEPA Appendix IX corresponds with Board
    Appendix I.
    The Board’s method of numbering is dictated by
    Administrative Code requirements, which the Board cannot change.
    However,
    to avoid confusion,
    in the text of the rules, the Board
    has inserted “(‘eye’)” after each reference to Appendix I, to
    remind
    readers
    that
    this
    is
    letter
    “I”,
    not
    Roman
    numeral
    “one”.
    This Appendix sets “feed rate and.emissions screening
    limits” for metals.
    The title of Table I-A was corrected to
    refer
    to
    “noncarcinogenic
    metals”
    in
    the
    July
    17,
    1991
    corrections.
    Appendix B
    Tier I feed rate screening limits for Total
    Chlorine
    This
    Appendix
    was
    drawn
    from
    40
    CFR
    266,
    Appendix
    II,
    ‘which
    was adopted at 56
    Fed. Reg.
    7206,
    February 21,
    1991.
    The
    Appendix
    was
    also
    subject
    to
    the
    corrections
    in
    the
    July
    17,
    1991,
    Federal
    Register,
    as
    discussed
    above.
    The original text of this Appendix set screening limits in
    lbs/hr.
    This
    was
    changed
    to
    g/hr
    in
    the
    correction.
    The title of 40 CFR 266, Appendix II was also changed in the
    July 17,
    1991,
    correction.
    While the original table referred to
    screening limits for “total chlorine and chloride”, the corrected
    table
    is headed as just “total chlorine”.
    This may be an error
    by
    USEPA,
    since
    the
    related
    rules
    use
    this
    table
    to
    regulate
    “total chlorine and chloride”.
    However, the Board has followed
    the USEPA text.
    Appendix C
    Tier II Emission Rate screening limits for free
    chlorine and hydrogen chloride.
    This Appendix was drawn from 40 CFR 266, Appendix III, which
    was adopted at 56 Fed. Req. 7206, February 21,
    1991.
    The
    Appendix was also subject to the corrections in the July 17,
    1991, Federal Register, as discussed above.
    132—243
    78
    The
    numerical
    data
    in
    this
    table
    was
    changed
    from
    g/sec
    to
    g/hr, necessitating retyping.’
    In addition, two columns were
    added,
    giving
    emission
    rates
    for
    urban
    and
    rural
    areas
    with
    “complex terrain”, which is defined in the rules.
    This
    apparently
    replaces
    the
    separate
    two—column
    table
    for
    complex
    terrain
    which
    appeared
    in
    the
    original
    rules.
    Appendix D
    Reference Air Concentrations
    (“RACs”)
    This Apperfdix was drawn from 40 CFR 266, Appendix IV, which
    was ado~Stedat 56 Fed. Reg.
    7206,
    February 21,
    1991.
    The
    Appendix
    was
    also
    subject
    to
    the
    corrections
    in
    the
    July
    17,
    1991,
    Federal
    Register,
    as
    discussed
    above.
    “RAC”
    is
    defined
    in
    Sections
    726.200(g)
    and
    726.206(d)
    (2).
    This is the acceptable ambient level for the noncarcinogenic
    metals for purposes of this Subpart.
    Following
    Appendix
    IV
    B)
    is
    a
    note
    specifying
    that
    other
    40
    CFR 261, Appendix VIII
    H
    constituents have a
    RAC
    of 0.1 ug/ cu
    m.
    Footnotes are not allowed in Administrative Code rules.
    The
    Board
    has
    rendered
    this
    as
    a
    “Board
    Note”
    at
    the
    beginning
    of
    the
    Appendix.
    The July 17,
    1991,.. corrections involve the spelling of
    chemical names.
    The Board has corrected additional names.
    Appendix
    E
    Risk
    Specific
    Doses
    (RSD5)
    This Appendix was drawn from 40 CFR ‘66, Appendix V, which
    was adopted at 56 Fed. Reg.
    7206, February 21,
    1991.
    As defined
    in
    Sections
    726.200(g)
    and
    726.206(d)
    (2),
    this
    is
    the
    acceptable
    ambient
    level
    for
    the
    carcinogenic
    ‘metals
    for
    purposes
    of
    this
    Subpart.
    These
    are
    based
    on
    a
    risk
    of
    1E—05,
    or
    1/100,000.
    The Appendix has two columns.
    One is headed “Unit risk
    (m3/ug)”.
    The other is headed “RsD
    (ug/m3)”.
    The Board has
    corrected these to use the abbreviations outlined above, so they
    read:
    “Unit
    risk
    (cu
    m/ug)”
    and
    “RSD
    (ug/cu
    m)”.
    The
    Board
    requested comment as to whether these headings might be in error,
    but
    received
    no
    response.
    Appendix F
    Stack Plume Rise
    This
    Appendix
    was
    drawn
    from
    40
    CFR
    266,
    Appendix
    VI,
    which
    was
    adopted
    at
    56
    Fed.
    Reg.
    7206,
    February
    21,
    1991.
    This
    gives
    the
    stack
    plume
    rise,
    which
    is
    used
    in
    the
    formula
    for
    TESH
    in
    Section
    726.206(b)
    (3).
    Appendix G
    Limits for Exclusion of Residues
    This Appendix was drawn from 40 CFR 266, Appendix VII, which
    132—244
    79
    was adopted at
    56 Fed. Reg.
    7206, February 21,
    1991.
    The
    Appendix was also subject to the corrections in the July 17,
    1991,
    Federal Register,
    as discussed above.
    This Appendix is
    used,
    in Section 726.212,
    in connection with the exclusion of
    certain BIF residues from regulation as hazardous wastes.
    Appendix VII
    G
    includes two tables.
    While the first
    specifies
    “Metals
    -
    TCLP
    Extract
    Concentration
    Limits”,
    the
    second specifies “Nonmetals
    —
    Residue Concentration Limits”
    The July 17 corrections included replacing the entries for
    thallium in the “Nonmetals” table with a single entry under
    “Metals”
    .~
    A second correction changed the units for the TCLP
    extraction limits from “mg/kg” to “mg/L”, the appropriate units
    for
    extraction
    limits.
    However,
    USEPA
    has
    not
    changed
    the
    footnote following the Appendix, which continues to specify
    “mg/kg” for all other 40 CFR 261, Appendix VIII
    H
    constituents.
    This is may be an error,
    since there are additional constituents
    which
    could
    be
    measured
    by
    the
    TCLP
    test,
    for
    which
    the
    limit
    ought
    to
    be
    stated
    in
    mg/L.
    However,
    this
    probably
    doesn’t
    make
    a lot of difference, since the density of the TCLP extract is
    approximately
    1 mg/L,
    so that mg/L is approximately equal to
    mg/kg.
    The Board requested as to whether it ought to try to fix
    this apparent error, but’received no response.
    The Board has
    followed the USEPA text.
    Appendix H
    Potential PIC5
    This
    Appendix
    was
    drawn
    from
    40
    CFR
    266,
    Appendix
    VIII
    H),
    which
    was
    adopted
    at
    56
    Fed.
    Reg.
    7206,
    February
    21,
    1991.
    The
    Appendix
    was
    also
    subject
    to
    the
    corrections
    in
    the
    July
    17,
    1991,
    Federal
    Register,
    as
    discussed
    above.
    These
    are
    used
    in
    connection
    with
    the
    residue
    exclusions
    in
    Section
    726.212.
    Appendix
    I
    Methods
    Manual
    for
    Compliance
    with
    BIF
    Regulations
    This Appendix was drawn from 40 CFR 266, Appendix IX, which
    was
    adopted
    at
    56
    Fed.
    Req.
    32688,
    July
    17,
    1991.
    The
    Appendix
    was
    also
    subject
    to
    the
    corrections
    in
    the
    August
    27,
    1991,
    Federal
    Register.
    9Actually,
    these
    headings
    are
    misleading.
    There
    are
    metal
    salts
    in
    the
    nonmetals
    table
    (nickel
    cyanide),
    and
    nonmetals
    in
    the’
    metals
    table
    (selenium
    and,
    arguably,
    thallium).
    Also,
    there
    are
    nonmetals
    for
    which
    the
    TCLP
    test
    could
    be
    used.
    It
    would
    be
    better
    if
    the
    metals/nonmetals
    distinction
    were
    dropped
    from
    the
    tables.
    The
    true
    dis’tinction
    is
    that,
    while
    some
    parameters
    are
    to
    be
    measured
    by
    TCLP’,
    others
    are
    to
    be
    measured
    in
    the
    whole
    residue.
    132—245
    80
    This and the following ‘Appendix were referenced, but not
    contained
    in,
    the
    original
    February
    21,
    1991,
    Federal
    Register.
    While the original reference was to the NTIS documents, USEPA
    published
    the
    entire
    documents’
    with
    the
    July
    17
    corrections.
    Because these documents are rather lengthy and detailed, the
    Board has not a.dopted the verbatim text.
    Rather, the Board will
    incorporate the text by reference.
    The Board has cited to both the NTIS and the CFR versions of
    these
    d~cuments,
    since
    the
    NTIS
    version
    is
    apt
    to
    be
    more
    available and usable to some people than the CFR version.
    The
    citation is as follows:
    See “Methods Manual for Compliance with BIF
    Regulations”.
    This
    document
    is
    available
    from
    two
    sources.
    It is available through NTIS,
    incorporated by
    reference
    in
    35
    Ill.
    Adm.
    Code
    720.111.
    It
    is
    also
    available as 40 CFR’266, Appendi’x IX, adopted at 56
    Fed.
    Req.
    32688,
    July
    17,
    1991
    and
    amended
    at
    56
    Fed.
    Req.
    42511, August 27,
    1991, which is incorporated by
    reference.
    This incorporation includes no future
    editions or amendments.
    The references are handled differently because, while the
    CFR version is
    a “normal” incorporation by reference, the NTIS
    version is “abnormal”.
    The “normal” incorporation occurs at the
    point in the text which is equivalent tO the USEPA rule cited.
    Any amendments will automatically be incorporated in the normal
    updating process.
    On the other hand, the NTIS version is an
    “abnormal” reference, which belongs in 35
    Ill. Adm. Code 720.111.
    Updatina of that reference would be handled differently.
    Appendix 3
    Guideline on Air Quality Models
    This Appendix was drawn from 40 CFR 266, Appendix X, which
    was adopted at 56 Fed.
    Reg.
    32688, July 17,
    1991.
    The Appendix
    was also subject to the corrections in the August 27,
    1991,
    Federal Register.
    It is subject to the same problems as
    Appendix
    I.
    The text of the reference is as follows:
    See “Guideline on Air Quality Models
    (Revised)”.
    This
    document is available from two sources.
    It is
    available through NTIS,
    incorporated by reference in,35
    Ill. Adm. Code 720.111.
    It is also available as 40 CFR
    266, Appendix X, adopted at 56 Fed. Reg. 32688, July
    17,
    1991 and amended at 56 Fed. Reg.
    42511, August 27,
    1991, which is incorporated by reference.
    This
    incorporation includes no future editions or
    amendments.
    Appendix K
    Lead-Bearing Materials in Exempt Lead Smelters
    132—246
    81
    This Appendix was drawn from 40 CFR 266, Appendix XI,
    which’
    was adopted at 56 Fed.
    Req. 42511, August 27,
    1991.
    This again
    is an addition to the original February 21,
    1991 rules.
    It
    contains a list of the types,of lead—bearing hazardous waste
    which can be introduced into a lead smelter which’is exempt from
    the BIF rules.
    The exemption appears above in connection with
    Section 726.200(c).
    Appendix L
    Nickel or Chromium-Bearing Materials in exempt
    Nickel—Chromium Recovery Furnaces
    This Appendix was drawn from 40 CFR 266, Appendix XII, which
    was adopted at 56 Fed. Req.
    42511, August 27, 1991.
    This again
    is an addition to the original February 21,
    1991 rules.
    It
    contains
    a
    list
    of
    the
    types
    of
    nickel
    or
    chromium—bearing
    materials in exempt Nickel—Chromium Recovery Furnaces which are
    exempt from the ElF rules.
    The exemption appears above in
    connection with Section 726.200(c).
    40 CFR 266, Appendix XII contains the following footnote:
    “If
    a hazardous waste under an authorized State program.”
    It’s
    not clear how to translate this into a State rule.
    At a deeper
    level,
    it’s not clear what function this note serves.
    If the
    waste were not a hazardous waste, there would be no prohibition
    at all on burning it in the recovery furnace.
    If it were, then
    it
    would
    be
    exempt,
    the
    same
    result.
    The
    Board
    has
    therefore
    simply
    omitted
    it
    from
    Appendix
    L.
    PART
    728:
    LAND
    DISPOSAL
    BANS
    This
    Part’contains
    the
    USEPA
    land
    disposal
    prohibitions.
    It
    was
    extensively
    amended
    in
    R90—11,
    to
    add
    the
    enormous
    “third
    third”
    land
    disposal
    regulations.
    During
    the
    pendency
    of
    R90-11,
    USEPA
    published
    a
    massive
    correction
    of
    the
    third
    third
    rules,
    at
    56
    Fed.
    Req.
    3876,
    January
    31,
    1991.
    The
    Board
    made
    a
    small
    number
    of
    these
    corrections
    in
    R90—11.
    However,
    it
    was
    not
    possible
    to
    address
    all
    the
    corrections
    in
    R90-ll.
    Apart
    from
    the sheer volume of the corrections, there is the added problem
    of
    identifying
    what
    has
    been
    changed,
    since
    USEPA
    does
    not
    use
    a
    “strike
    and
    underline”
    format
    in
    the
    Federal
    Register.
    Almost
    all
    of
    the
    revisions
    to
    this
    Part
    stem
    from
    the
    third
    third
    correction.
    The
    Board
    will
    expressly
    indicate
    any
    changes
    which
    do
    not
    arise
    from
    the
    third
    third
    corrections.
    Section
    728.107
    The
    amendments
    to
    this
    Section
    include
    more
    or
    less
    identical
    changes
    in
    wording
    to
    the
    following
    provisions:
    Section
    728.107(a)(1)(B),
    (a)(2)(A)(ii),
    (a)(3)(B)
    and
    (b)(4).(B).
    These
    include
    references
    to
    the
    USEPA
    definitions
    of
    “wastewater”
    and
    “nonwastewater”
    in
    40
    CFR
    268.2(f)
    and
    (d).
    The
    equivalent
    132—247
    82
    Board definitions are in Section 728.102.
    However, they appear
    as an alphabetical list,
    in accordance with Code Division
    .requirements, rather than as lettered subsections.
    The Board has
    therefore replaced the specific references with a general
    reference to the definition list.
    The Board’s rule is as
    follows:
    The
    notice must include...)The corresponding treatment
    standards for wastes F0O1—F005,
    F039 and wastes
    pr9hibited pursuant to Section 728.132 or Section
    3004(d) of the Resource Conservation and Recovery Act,
    referenced in Section 728.139.
    ‘
    Treatment standards for
    all other restricted wastes must either be included,
    or
    be referenced as abovc, or by including on the
    notification the subcatcgory of the waste,
    the
    treatability group(s)
    of thc waste(s) ,wastewater or
    nonwastewater
    (as defined in Section 728.102) category,
    the applicable subdivisions made within a waste code
    based on waste—specific criteria
    (such as D003,
    reactive cyanides),
    and the Section and subsection
    where the applicable treatment standarde appear~...
    The USEPA correction also includes a new 40 CFR
    268.107(a) (6), which reads as follows:
    If a generator determines that the he is managing a
    restricted waste that is excluded from the definition
    of hazardous or solid waste or exempt from Subtitle C
    regulation,
    under 40 CFR 261.2
    —‘
    261.6 subsequent to
    the point of generation, the he must place a one—time
    notice stating such generation,
    subsequent exclusion
    from the definition of hazardous or solid waste or
    exemption from Subtitle C regulation, and the
    disposition of the waste,
    in the facility’s file.
    There are quite a few problems with this language.
    The first has
    to do with the references to “Subtitle C regulation”.
    This is a
    reference to Subtitle C of the federal RCRA Act, which governs
    hazardous waste.
    At the State level, this would probably have to
    be handled as an incorporation by reference.
    Rather than deal
    with the complexity of such a reference,
    it is simpler to cite to
    the State definition of “hazardous waste”, which is derived from
    ‘RCRA Subtitle C.
    However, USEPA already appears to cite to its
    regulations, from which the Board rules are derived.
    The
    “Subtitle C” references therefore appear to be mere surplusage.
    The Board has replaced them with the phrase “RCRA hazardous
    waste”.
    The Board requested comment on this,
    but received no
    response
    The USEPA provision has several misplaced modifiers, missing
    commas and extra commas.
    The Board has rearranged the provision
    to make it easier to read.
    The language is as follows:
    132—248
    83
    If
    a
    generator
    determines,
    subsequent
    to
    the
    time
    of
    generation, that the generator is managing a restricted
    waste
    which
    is
    excluded
    from
    the
    definition
    of
    hazardous or solid waste or exempt from regulation as a
    RCRA
    hazardous waste under 35 Ill.
    Adm.
    Code 721.102
    -
    721.106, the generator shall place,
    in.the facility’s
    file, a one—time notice stating such. generation,
    subsequent exclusion from the definition of hazardous
    or solid waste or exemption from regulation as a
    RCRA
    hazardous waste, and the disposition of the waste.
    Section 728.109
    Section 728.109(d) (1) (B)
    includes language similar to that
    discussed
    above
    in
    connection.with
    Section
    728.107(a)(1)(B).
    The
    Board
    has
    replaced
    the
    specific
    references
    to
    USEPA
    definitions
    with
    a
    generic
    reference
    to
    the
    definition
    set
    in
    Section
    728.102.
    Sections 728.110
    —
    728.113
    The
    Board
    has
    added
    four
    new
    Sections
    incorporating
    40
    CFR
    268.10
    -
    268.13 by reference.
    The USEPA Sections set forth
    USEPA’s
    schedule
    for
    promulgating
    the
    land
    disposal
    bans.
    As
    such, they apply only
    t.o’USEPA,
    and
    are
    not
    appropriate
    for
    adoption with the Illinois program.
    However,
    it has become clear
    that
    these
    Sections
    also
    serve
    as
    a
    definition
    of
    the
    “thirds”.
    As
    such,
    they
    may
    be
    necessary
    in
    the
    Illinois
    rules.
    Section
    728.133
    In
    adopting
    this
    and
    the
    following
    Sections,
    the
    Board
    broke
    the long USEPA blocks of text into subsections, and reversed the
    wording of most Sections so as to place lists at the end of
    provisions
    (as required in the Administrative Code).
    This makes
    the
    Section
    easier
    to
    use,
    but
    harder
    to
    compare
    with
    the
    USEPA
    text.
    Section
    728.133(b)
    has
    been
    corrected
    so
    that
    it
    applies
    only to K07l.
    This Section contains a large number of temporary provisions
    which
    no
    longer
    have
    any
    prospective
    effect.
    The
    Board
    has
    deleted them.
    If persons violated them while they were in
    effect,
    enforcement
    will
    be
    possible
    under
    the
    regulations
    ‘which
    were in existence at the time.
    In some cases entire subsections are being deleted.
    The
    Board
    is
    not
    renumbering
    the
    subsections,
    in
    order
    to
    maintain
    correspondence with federal numbering.
    Section
    728.135
    132—249
    84
    This
    Section
    is
    the
    subject
    of
    numerous
    minor
    corrections.
    In
    the
    Proposal,
    in
    Section
    728.134(a)
    (3),
    the
    Board
    has
    an
    erroneous second entry for “P024”.
    The second entry should have
    been “P026”.
    (PC
    3,
    5)
    Section
    728.135(d)
    includes
    a
    back-reference
    to
    the
    definitions of the thirds in Section 728.110 et seq.
    In adopting
    this
    Section,
    the
    Board
    referenced
    40
    CFR
    268.10
    et
    seq.
    directly.
    The’~reference,which is the subject of USEPA
    amendmei’its,
    is now changed to reference Section 728.110 et seq.
    40 CFR 268.35(d),
    a.s amended, and
    (j)
    include references to
    wastes “listed in 40 CFR 268.10,
    268.11 and 268.12”.
    Since these.
    lists
    are
    mutually
    exclusive,
    this
    reference
    reduces
    to
    the
    null
    set.
    USEPA
    probably
    means
    “or”,
    which
    the
    Board
    has
    adopted.
    The instructions in the Federal Register are clear that,
    while
    only
    40
    CFR
    268.33(a)
    -
    (e)
    are
    reprinted,
    (f)
    et
    seq.
    are
    retained
    without
    changes.
    However,
    the
    Board
    is
    unable
    to~find
    the change in
    (e).
    Section
    728.140
    Section
    728.140(a)..
    is
    the
    subject
    of
    numerous
    changes
    to
    cross references.
    The text is as follows:
    A
    restricted
    waste
    identified
    in
    Section
    728.141
    may
    be
    land
    disposed
    only
    if
    an
    extract
    of
    the
    waste
    or
    of
    the
    treatment
    residue
    of
    the
    waste
    develOped
    using
    the
    test
    method Appendix A35 Ill.
    Adm. Code 721.Appendix B does
    not exceed the value shown in Table A for any hazardous
    constituent
    listed
    in
    Table
    A
    for
    that
    waste,
    with
    the
    following
    exceptions:
    D004,
    D008,
    K031,
    K084,
    Kb?,
    K102,
    P010,
    P011,
    P012,
    P036,
    P038
    and
    U136.
    Wastes
    D004,
    DOOB,
    K031,
    1(084,
    1(101,
    1(102,
    P010,
    P011,
    P012,
    P036,
    P038
    and
    Ul36These
    wastes
    may
    be
    land
    disposed
    only
    if
    an
    extract
    of
    the
    waste
    or
    of
    the
    treatment
    residue of the waste developed using either the .test
    method
    in
    35
    Ill.
    Adm.
    Code
    721.Appendix
    A~or
    the
    test
    method
    in
    35
    Ill.
    Adm.
    Code 728.Appendix ~I
    (“eye”)
    of
    this Part does not exceed the valucconcentrations shown
    in
    Table
    BA
    for
    any
    hazardous
    constituent
    listed
    in
    Table
    A
    for
    that
    waste.
    There are several potentially confusing aspects to this.
    First, 40 CFR 268.41, Table
    CCWE
    appears in the Board rules as 35
    Ill. Adm. Code 728.Table A.
    This is a floating Table, which
    appears at the end of the part,
    like an Appendix.
    The’
    Administrative Code does not allow extensive tables inside
    Sections.
    132—250
    85
    Second, the final sentence has a reference to Appendix B of
    Part 721, or Appendix I of Part 728.
    Appendix I corresponds with
    40 CFR 268, Appendix IX.
    In other words, the State rule is
    letter “I”, not Roman numeral “I”.
    As is discussed above for
    Part 726, the Board has added an “(‘eye’)” after each of these
    refer~.hc~stofertidatenfhatotihp7Tl8EPA rule is worded with a
    complex
    reference
    (to
    another
    Part)
    followed
    by
    a
    simple
    referençe
    (to the same Part).
    In the proper Code format,
    these
    are
    ambiguous,
    in
    that
    the
    second
    could
    be
    taken
    as
    a
    continuation of the first.
    For this reason, the Board has added
    a
    superfluous
    “of
    this
    Part”
    to
    the
    second
    reference.
    Section
    728.141
    This Part is drawn from 40 CFR 268.41, which includes Table
    CCWE.
    All the corrections to this Section are in the Table,
    which appears as Table A, at the end of the Board rules.
    There
    are no changes in the Third Third corrections to the text of the
    Section
    proper.
    However,
    as
    was
    discussed
    above,
    and
    below
    in
    connection with Table A
    CCWE
    the Board has received public
    comment asking that it address in this Update Docket the
    amendments
    concerning
    K061
    high
    zinc
    waste
    at
    56
    Fed.
    Req.
    41176,
    August
    19,
    1991.
    The
    amendment
    to
    Section
    728.141(b)
    is
    as
    follows:
    When wastes with differing treatment standards for a
    constituent
    of
    concern
    are
    combined
    for
    purposes
    of
    treatment, the.treatment residue must meet the lowest
    treatment
    standard
    for
    the
    constituent
    of
    concern~
    except that mixtures of high and low zinc nonwastewater
    K061
    are
    subiect
    to
    the
    treatment
    standard
    for
    high
    zinc
    1(061.
    Section 728.142
    This Section establishes treatment standards by way of
    requiring certain technologies.
    ThIs Section includes three
    Tables, which appear as Tables C, D and E in the Board rules.
    40,CFR 268.42(a) (2) requires halogenated organic compounds
    (HOC5) to be incinerated .pursuant to the incinerator rules
    in
    Subpart 0 of Part 264 or 265.
    This may conflict with the BIF
    rules, which have moved the BIF regulations to Part 266.
    The
    Board did not attempt to correct this possible error, but
    requested
    comment.
    The
    Board
    received
    no
    response.
    Although new Section 728.142(a) (3) was added with the third
    third corrections,
    it appears to be more closely related to the
    process
    vent
    rules.
    It
    deals
    with
    wastewater
    mixed
    with
    de
    132—25 1
    86
    minimis losses of materials from manufacturing operations.
    The
    USEPA
    rules
    refer
    to:
    A
    mixture
    consisting
    of
    wastewater,
    the
    discharge
    of
    which
    is
    subject
    to
    regulation
    under
    either
    section
    402
    or
    section
    307(b)
    of
    the
    Clean
    Water
    Act,
    and
    de
    minimis
    losses
    of
    materials...
    Sections
    402
    and
    307(b)
    of
    the
    CWA
    refer. to the NPDES permit
    requiren~entand to the pretreatment standards.
    The Board has
    replaced this with a reference to the equivalent State
    regulations at 35 Ill.
    Adm. Code 309 and
    310.10
    40 CFR 268.42(a) (3) ends with a list defining “de minimis
    losses”.
    The Board has broken subsections out to make this more
    readable.
    The language is as follows:
    fl
    A
    mixture
    consisting
    of
    wastewater,
    the
    discharge
    of
    which
    is
    subject
    to
    regulation
    under
    35
    Ill.
    Adm. Code 309 or 310, and de minimis losses of
    materials
    from
    manufacturing
    operations
    in
    which
    these
    materials
    are
    used
    as
    raw
    materials
    or
    are
    produced as products in the manufacturing process,
    and
    that
    meet
    the
    criteria
    of
    the
    DOOl
    ignitable
    liquids
    containinci
    greater
    than
    10
    total
    organic
    constituents
    (TOC)
    subcategory.
    is subject to the
    DEACT
    treatment
    standard
    described
    in
    Table
    C.
    For purposes of this subsection,
    “de minimis
    losses” include:
    ~
    Those from normal material handling
    operations
    (e.g.,
    spills
    from
    the
    unloading
    or
    transfer
    of
    materials
    from
    bins
    or
    other
    containers,
    leaks
    from
    pipes,
    valves
    or
    other
    devices
    used
    to
    transfer
    materials)
    ~j.
    Minor leaks from process equipment,
    storage
    tanks,
    or containers
    ~
    Leaks from well-maintained pump packings and
    ‘°The
    USEPA reference
    is
    asymmetric
    in
    that
    it
    refers
    to
    surface effluent discharge permit requirement and the pretreatment
    standards.
    The Board has proposed to replace this with a reference
    to
    the
    .
    two permit
    requirements.
    Part
    309
    is the NPDES permit
    requirements,
    and Part 310 contains the requirement to obtain a
    pretreatment permit
    or “authorization
    to discharge”
    from
    local
    government
    before
    discharging
    to
    a
    sewer.
    The
    latter
    permit
    requirement attaches if an indirect discharger is subject to’one of
    the pretreatment standards under 307(b)
    of the CWA, the reference
    given in the USEPA rule.
    132—252
    87
    seals
    Qj
    Sample purgings; and
    ~
    Relief device discharges.
    Section
    728.143
    (Not
    Amended)
    This
    Section
    sets
    CCW
    Treatment
    Standards.”
    The
    Board
    addressed the USEPA corrections to this Section in R90—11.
    The
    corrections left much to be desired, so that the Board was forced
    to make several changes to the USEPA language.
    The Board will
    not further modify this Section until USEPA provides additional
    corrections.
    Section 728.144
    Treatability “variances”
    This Section governs “treatability variances”.’2
    It was
    adopted in R87-5, and amended in R89—1.
    As adopted by the Board,
    it utilizes the “adjusted standards” procedures of 35 Ill. Adm.
    Code 106 and Section 28.1 of the Act for making these
    determinations.
    USEPA amended 40 CFR 268.44(o) to add two site specific
    “treatability variances.” ‘at 56 Fed. Req.
    12355, March 25,
    1991.
    The Board is not adopting these at this time,
    for several
    reasons.
    The general language of 40 CFR 268.44 was not specific that
    USEPA would grant site-specific treatability “variances” by way
    of adopting a ‘rule.
    Therefore,
    in R87-5 and R89-1, the Board did
    not specifically address the possibility of adopting a site-
    specific “identical in substance” treatability “variance”.
    Instead, the equivalent Section 728.144 provides only for Board
    action on an adjusted standard petition.
    As USEPA is using it,
    40 CFR 268.44 appears to be similar to
    40 CFR 260.22
    720.122,
    which provides for site—specific
    delisting of hazardous waste.
    When the Board originally adopted
    Section 720.122, it allowed two mechanisms for delisting.
    The
    first allowed for Board action in “identical in substance”
    rulemaking following a USEPA delisting.
    The second (which was
    ‘1Table CCW appears in the Board rules as Table B, which floats
    at the end of the Part,
    following the Appendices.
    ‘2The USEPA rules are using the term “variance”
    in
    a manner
    which
    is
    different
    from
    the
    way
    the
    term
    is
    used
    in
    the
    Environmental Protection Act.
    In this situation the USEPA variance
    is
    similar to
    a
    site specific rule or adjusted standard
    in the
    Environmental Protection Act.
    132—253
    88
    never used)
    allowed the Board to delist wastes pursuant to
    general rulemaking.
    ‘These provisions were extensively amended in
    R90-17,
    replacing
    the
    second
    mechanism
    with
    the
    adjusted
    standards procedure.
    Site specific delistings for the most part have no effect on
    the Illinois program.
    ‘The Board cannot generally tell, from the
    Federal Register notices, which site-specific delistings affect
    the Illinois program.
    Accordingly, Section 720.122(p)
    allows
    site-sp~cificdelistings only on a showing that a waste will be
    “generated
    or
    managed
    in
    Illinois”.
    It
    would
    be
    possible
    to
    adopt
    similar
    provisions
    governing
    “treatability
    variances”.
    The
    Board
    has
    not,
    however,
    done
    so.
    The
    Board
    anticipates
    that
    Illinois
    will
    be
    delegated
    primacy
    for
    treatability “variances”
    in the near future.
    A rule allowing
    site—specific
    treatability
    “variances”
    by
    identical
    in
    substance
    rulemaking would therefore be a transitional rule.
    After
    Illinois is granted primacy, any treatability “variances” granted
    pursuant
    to
    the
    transitional
    rule
    would
    have
    an
    ambiguous
    status.
    Any
    modifications
    to.the
    “variances”
    might
    entail
    the
    simultaneous repeal of the site—specific rule and granting of an
    adjusted
    standard.
    The Part 268 land ‘disposal bans are HSWA-driven rules.
    Part
    268
    therefore
    applies
    directly
    in
    Illinois
    upon
    adoption
    by
    USEPA.
    However,
    Sections
    7.2
    and
    22.4(a)
    of
    the
    Act
    require
    the
    Board
    to
    adopt
    identical
    in
    substance
    rules
    within
    12
    months.
    The
    result
    is,
    pending
    authorization
    by
    USEPA,
    a
    dual
    regulatory
    system
    in
    which
    persons
    must
    comply
    with
    both
    ‘Part
    268
    and
    728.
    A
    person
    who
    obtains
    a
    treatability
    “variance”
    from
    USEPA
    pursuant to Part 268 must still get an adjusted standard pursuant
    to
    Part
    728.
    During
    the
    transitional
    period,
    the
    dual’procedural
    requirement may be burdensome.
    However,
    in the long run it would
    allow for more efficient procedures should modification be needed
    followinci authorization.
    As
    discussed
    above,
    for
    identical
    in
    substance
    site
    specific
    delistinq,
    the
    Board
    does
    not
    automatically
    adopt
    a
    delisting
    with
    the
    RCRA
    Updates.
    Rather,
    the
    person
    seeking
    the
    delisting
    must
    file
    a
    petition
    with
    the
    Board
    showing
    that
    the
    waste
    is
    generated or managed in Illinois.
    Therefore, even if ‘Section
    728.144
    were
    patterned
    after
    the
    delisting
    rules,
    the
    Board
    would
    not
    handle
    these
    treatability
    “variances”
    in
    this
    Docket.
    Rather,
    the
    Board
    would
    open
    separate
    Dockets
    on
    receipt
    of
    rulemaking petitions.
    In this case it is likely that both of the facilities
    involved are located in Illinois.
    The Board cannot tell for
    certain, since the USEPA rule’ could be giving the address of the
    corporate office, rather than the specific facility.
    Furthermore,
    the
    Board
    cannot
    tell
    from
    the
    Federal
    Register
    132—254
    89
    whether the wastes are managed inside Illinois.
    In the Proposed
    Opinion,
    the
    Board
    indicated
    ‘that,
    if
    these
    generators
    (or
    the
    receiving
    facilities)
    need
    the
    Board
    to
    adopt
    these
    treatability
    “variances”,
    they
    should
    follow
    one
    or
    both
    of
    the
    following
    courses.
    First,
    they
    could
    ask
    the
    Board
    to
    add
    an
    “identical
    in
    substance” procedure to this rule, and prepare to file a
    rulemaking petition.
    Second, they could immediately file an
    adjusted
    standard
    petition,
    asking
    the
    Board
    to
    grant
    an
    adjusted
    standard
    based
    on
    USEPA’s
    prior
    determination.
    We
    note
    that
    the
    procedural
    time
    frames
    for
    Board
    decision
    should
    not
    be
    all
    that
    differeict in either case.
    The Board received no response to the
    request
    for comment, and has adopted the rule as proposed.
    The Board has made some minor changes to Section 728.144.
    These involve changes to cross references to the delisting
    procedures to conform with R90-17.
    In adç~ition,the Board has
    referenced the newer generic adjusted standards procedure, rather
    than
    the
    RCRA-specific
    adjusted
    standards
    procedures.
    The
    Board
    has added
    ,a requirement, patterned after Section 720.122(n) (3),
    that
    the
    Board
    maintain
    a
    list
    of
    adjusted
    standards
    in
    the
    rules.
    In addition, the Board has added a paraphrase of Section
    28.1(d) (3), which requires the Board to publish a list of
    adjusted
    standards
    at
    the
    end
    of
    each
    fiscal
    year
    in
    the
    Illinois
    Register and Environmental Register (See Section 28.1).
    Appendix
    D
    and
    E
    40
    CFR
    268,
    Appendices
    IV
    and
    V
    were
    amended
    with
    the
    third
    third corrections.
    The corrections involve numerous replacements
    of
    specific
    entries
    in
    these
    lists.
    Appendix
    G
    and
    H
    40
    CFR
    268,
    Appendices
    VII
    and
    VIII
    were
    also
    amended
    with
    the third third corrections.
    These are listings which show the
    effective
    dates
    of
    various
    federal
    requirements
    and
    “variances”.
    Changes appear to have been made to more than 50
    of the entries
    in these Appendices.
    The Board has stricken the entire existing
    Appendices,
    and
    replaced
    them
    with
    new text
    drawn
    from
    the
    USEPA
    diskettes.
    Appendix I
    (“eye”)
    40 CFR 268, Appendix IX is a new appendix which contains the
    EP
    Toxicity
    test.
    This
    test
    was
    formerly
    used
    in
    the
    definition
    of
    hazardous
    waste
    in
    Section
    721.124.
    It
    has
    been
    replaced
    by
    the TCLP test.
    However, the EP Toxicity test is still used for
    some
    of
    the
    land
    disposal
    bans.
    USEPA
    has
    therefore
    set
    forth
    the text of the test method in Part 268
    728).
    The
    Board
    has
    used
    incorporation
    by
    reference
    for
    this
    detailed
    test
    metb~od.
    132—255
    90
    As was
    discussed above in connection with Part 726, the
    Board has added a “eye” after~referencesto this Appendix,
    t,o
    avoid
    possible
    confusion
    with’
    40
    CFR
    268,
    Appendix
    I
    (“one”)
    Table
    A
    and
    B
    CCWE
    and
    CCW
    These Tables are drawn from 40 CFR 268.41, Table
    CCWE,
    and
    from
    268.43,
    Table
    CCW.
    The Administrative Code does not allow
    large Tables such as this to appear inside the text of a Section.
    The Board therefore placed the text in floating “Tables”, which
    appear after the Appendices,
    at the end of the Part.
    Tables CCWE and CCW were extensively amended in the third
    third corrections.
    The main problem is that USEPA did not
    present
    the
    changes
    in
    a
    “strike
    and
    underline”
    format,
    so
    that
    the Board faced a very time—consuming process of cross—reading
    the tables to find the changes.
    The
    USEPA
    diskette
    version
    of
    the
    third
    third
    corrections
    contains
    a
    notation
    that
    the
    Federal.Register
    version
    of
    the
    corrections
    itself
    had
    numerous
    errors,
    which
    have
    been
    corrected
    on disk.
    The
    Board
    is
    clearly
    required
    to
    follow
    the
    text
    in
    the
    Federal Register, rather than the diskette version.
    Although the
    Board has referred to the diskette version to correct a few
    apparent13 errors in the Federal Register version,
    it has not
    undertaken
    a
    detailed
    comparison
    of
    its
    version
    with
    the
    diskette
    version.
    Table
    A
    CCWE
    This Table gives treatment standards expressed as CCWE
    (constituent concentrations in waste extract).
    Some wastes may
    be
    landfilled
    if
    an
    extract
    from
    the
    waste
    meets
    a
    CCWE
    standard.
    The extract is derived from the TCLP test,
    or the EP Toxicity
    test
    in
    a
    few
    cases.
    Most
    of
    the
    changes
    are
    to
    the
    form
    of
    the
    footnotes.
    USEPA
    has
    replaced
    the
    footnote
    symbols
    with
    numbers
    in
    a
    separate
    column.
    The
    Board
    simply
    does
    not
    have
    room
    for
    two
    extra
    columns in its format.
    The Board therefore has to keep the
    footnote symbols in the same
    column
    with the numerical standards.
    Numbered
    notes
    tend
    to
    get
    confused
    with
    the
    numerical
    standards.
    ‘3The
    Board
    has
    consulted
    the
    improved
    version
    where
    it
    observes
    an
    error,
    such
    as
    a misspelled
    word,
    in
    the
    Federal
    Register.
    The Board has used the improved version for guidance as
    to how to correct such apparent errors.
    This type of use would not
    lead to correction of errors which are not apparent, such as
    wrong
    names,
    correctly
    spelled,
    or
    incorrect
    numerical
    standards.
    USEPA
    will have to correct these in the Federal Register before the Board
    can act.
    132—156
    91
    The Board has therefore replaced the numbers with capital
    letters, with “A” equal to “1”, etc.
    In
    the
    entry
    for
    F020-F023,
    the
    standards
    entry
    for
    “TCDF-All
    Tetrachlorodibenzofurans”
    is
    blank.
    On
    the
    disk,
    the
    blank has been moved up to “TCDD-All Tetrachlorodibenzo-p-
    dioxins”.
    In all probability, both the Federal Register and the
    disk are wrong:
    the standards should be “1.
    ppb” for each of
    these.
    The Board has nonetheless followed the Federal Register
    (with fqrans blank).
    The Board requested comment on this, but
    received
    no
    response.
    In the Proposed Opinion, the Board noted that the entry for
    K061, high zinc subcategory, expired on August
    7,
    1991.
    The
    Board requested comment as to whether the rule had been extended.
    Two commenters
    noted the USEPA action at 56 Fed. Req.
    41176,
    August 19,
    1991.
    (PC
    1,
    2)
    As
    is discussed above, the Board has
    acted on this Federal Register, even though it was outside the
    scope of this update.
    This resolves the problems resulting from
    the
    expiration
    of
    the
    K061,
    high
    zinc
    treatment
    standard.
    There are several minor editorial problems with the K061,
    high zinc entry in Table CCWE.
    First, the headings of the Table
    appear to conform more closely with the headings used for the U
    and P Subtable than the D,
    F and K Subtable.
    In particular, the
    heading
    for
    “Commercial
    chemical
    name”
    is
    not
    appropriate
    for
    the
    D,
    F
    and
    K
    Subtable.
    Also,
    the
    entry
    in
    that
    column,
    “Electric
    Arc
    Furnace
    Dust”,
    is
    not
    appropriate
    in
    a
    column
    with
    that
    heading.
    Moreover,
    “Electric
    Arc
    Furnace
    Dust”
    would
    not
    be
    appropriate in any of the existing columns in the D,
    F and K
    Subtabie
    (or the U and P Subtable, for that matter).
    The Board
    has moved the phrase into the “Waste Code” heading, which seems
    to
    come
    the
    closest.
    USEPA
    has
    also
    dropped
    the
    “CAS
    No.”
    column
    for
    the
    regulated hazardous constituents,
    and, of course, the CAS
    Numbers.
    The
    Board
    has
    retained
    this
    column,
    and
    has
    inserted.
    the
    CAS
    Numbers,
    which
    are
    given
    in
    other
    entries.
    Table
    B
    CCW
    This
    Table
    sets
    treatment
    standards
    expressed
    as
    CCW
    (constituent concentrations in the waste).
    In
    the
    entry
    for
    F024,
    3-Chloropropene,
    the
    CAS
    No.
    is
    partly blank in both the Federal Register and the disk version.
    The
    Board
    has
    retained
    “107-05—1”
    from
    the
    original
    adoption.
    In the entry for F039,
    the Board Proposal listed “Aramine”.
    This
    should
    read
    “Aramite”.
    (PC
    5)
    In the entry for F039,
    2,6-Dichborophenol, the CAS No.
    in
    132—25
    7
    92
    the Federal Register appears to be “87-85—0”.
    However, this is
    clearly “87-65-0” on the disk.
    Also,
    in the Proposal, the
    wastewater standard for Diphenylamine was “0.51”.
    This should
    have read “0.52”.
    The CAS No.’ for Methanol should have read “67—
    56-1”.
    The CAS No. for Phthalic anhydride should have read “85-
    44—9”.
    (PC 5)
    In the entry for K006, the entries for chromium and lead
    appear to have been scrambled in both the Federal Register and
    disk versions.
    The Board has corrected these so as to state
    wastewa1~erstandards for chromium and lead, with “NA” in the
    nonwastewater
    column.
    In 1(028, there is an entry for “trans—1,2—Dichloroethane”.
    This
    name
    is
    internally
    inconsistent,
    since
    ethane
    cannot
    have
    cis— and trans— isomers.
    The Board has retained “trans—1,2—
    Dichloroethene”, based on the presumption that the simpler
    mistake is the one which was made.
    In K048,
    in the Proposal, the wastewater standard for
    Xylene(s)
    should have read “0.028”.
    In 1(049,
    and throughout, USEPA has modified the CAS No.
    for
    Chrysene,
    from
    “2218—01—9”
    to
    “218—01—9”.
    The
    former
    is
    the
    number used in 40 CFR
    2’61,
    .
    Appendix VIII.
    The Board has retained
    “2218”, pending clarification.
    In K051,
    as originally adopted by the Board, the CAS Nos.
    for Benzo(a)anthracene and Benzo(a)pyrene were the same.
    USEPA
    appears
    to
    have
    recognized
    this
    error,
    but
    has
    erroneously
    corrected
    it
    with
    the
    CAS
    Nos.
    reversed
    (at
    least
    according
    to
    Appendix VIII).
    The Board has corrected this so that the. CAS
    Nos. reflect those in 40 CFR 261, Appendix VIII, pending
    clarification.
    (PC
    5)
    Also
    in
    K051,
    all
    of
    the
    standards
    following
    ethylbenzene
    appear to have been shifted down one line.
    This was not
    corrected on the disk.
    The Board has retained the original text.
    A similar offset error appeared in the Federal Register in
    the entries following 1(086,
    butylbenzylphthalate.
    These appear
    to
    be
    corrected
    on
    the
    disk.
    As is discussed above, the Board is addressing the
    amendments
    to
    the
    K061
    provisions,
    based
    on
    the
    August
    19,
    1991,
    Federal Register.
    Item 3, at 56 Fed. Reg. 41177 says:
    In § 268.42, Table
    2
    is amended by removing the entry
    for
    1(061.
    The entry for 1(061 in .that Table Table
    B below
    was already
    repealed
    by
    USEPA.
    One
    explanation
    is
    that
    USEPA
    intended
    to
    132—258
    93
    repeal the entry in this Table
    268.43,
    Table CCW).
    The Board
    has not done so, but alerts the commenters to this possibility.
    The Board may revise this provision during the post-adoption
    comment period.
    As this Subpart is structured, the 1(061 would
    remain subject to the CCW ‘standard, potentially removing much of
    the benefit to industry from the extensive revision of the C~WE
    standard.
    In 1(096,
    USEPA has added an entry for “Trichloroethylene”.
    However, this is another name
    for the preceding entry
    “Trichl6roethene”.
    The Board has added “Trichloroethylene” as an
    alternative name to the first entry.
    Table C
    Technology Codes
    This Table
    is drawn from 40 CFR 268.42, Table
    1.
    It defines
    acronyms for technologies which are specified in Table D.
    The definitions of “RTHPN”
    (thermal recovery) includes a
    reference to “40 CFR 260.10
    (1),
    (6),
    (7),
    (11),
    and
    (12) under
    the definition of ‘industrial furnace”.
    ‘
    As is discussed above
    in connection with Section 720.110,
    in the Administrative Code,
    the Board cannot use numbering to indicate subordination ,within’ a
    definition set.
    Rather, the Board has, to use unnumbered
    subparagraphs.
    Therefo~re, in adopting this Table, the Board had
    to replace the cross reference with a narrative description of
    the types of “industrial furnace” which are included in “RTHRM”.
    These are:
    C)ement
    kilns, blast furnaces, smelting,.melting and
    refining furnaces, combustion devices used to recover
    sulfur values from spent sulfuric acid and “other
    devices” determined by the Agency pursuant to 35 Ill.
    Adm. Code 720.110, the definition of “industrial
    furnace&’
    The USEPA cross reference is now wrong, because of the
    changes to the definition of “industrial furnace” discussed above
    in the BIF rules.
    “(12)”
    is now “halogen acid furnaces”,
    and
    “(13)”
    is “other”.
    The Board believes that USEPA intends to
    continue referencing “other” for two reasons.
    First, the rule
    needs a catch—all.
    Second, halogenated compounds usually have a
    low BTU value, such that they would not be burned for legitimate
    thermal recovery.
    The Board requested comment on this, but
    received no response.
    Table D
    Required Treatment Technologies
    This Table is derived from 40 CFR 268.42, Table
    2.
    It
    contains treatment standards in the form of required
    technologies.
    For certain wastes, certain specified treatment is
    required.
    This differs from the performance—based CCW and CCWE
    132—259
    94
    standards.
    In the Proposal, the entry for D008, the CAS No.
    (for lead)
    should have read “7439—92—1”.
    (PC 5)
    As is discussed above,
    item 3 at 56 Fed. Reg.
    41177, August
    19,
    1991,.
    says to’remove the entry for 1(061 in this Table.
    However, this entry was already repealed in the Third Third
    corrections.
    As discussed above,
    in connection with Table B, the
    Board h~srequested post—adoption comment as to whether the entry
    in .that Table should have been repealed.
    In the entry for P002, USEPA appears to have uncorrected the
    spelling
    of
    “l-Acetyl—”.
    Also,
    in
    P093,
    “Phenylthiourea”
    has
    been
    uncorrected.
    In U126,
    the Board has corrected the spelling of the
    regulated
    constituent,
    as
    follows:
    “Glycidy~aldehyde”.
    This
    is
    wrong in both the USEPA and Board rule.
    The corrected spelling
    is
    taken
    from
    40
    CFR
    261,
    Appendix
    VIII.
    En the Proposal, under U248, the entry should have read
    “Warfarin
    (0.3
    or less)”.
    (PC
    5)
    Following Table D ~isa Board Note with important explanatory
    material
    which
    appears
    in
    the
    USEPA
    rule
    as
    a
    note
    to
    the
    equivalent
    of
    Table
    C.
    The
    Board
    has
    moved
    this
    to
    Table
    B,
    where
    the
    note
    is
    used.
    Table
    E
    Radioactive
    Mixed
    Wastes
    This
    Table
    specifies
    required
    treatment
    technologies
    foL
    radioactive mixed waste.
    Although radioactivity is not a
    hazardous characteristic under Part 721
    261,
    wastes which are
    hazardous for other reasons may exhibit radioactivity.
    Basjcally,
    the
    only
    change
    to
    this
    Table
    is
    the
    change
    from
    “INCIN” to “IMERC” for D009.
    However, the Board has repealed and
    replaced
    the
    entire
    Table
    with
    a
    better
    text
    obtained
    from
    USEPA
    in this Docket.
    This
    Opinion
    supports
    the
    Board’s
    Order
    of
    this
    s’ame
    date.
    The
    Board
    will
    not
    file
    the
    adopted
    rules
    until
    after
    May
    8,
    1992, to allow time for post—adoption comment by the agencies
    involved in the authorization process.
    132—260
    95
    IT IS SO
    ORDERED.
    B.
    Forcade
    and
    J.
    Theodore
    Meyer
    dissented.
    I,
    Dorothy
    M.
    Gunn,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Bo~4,
    hereby
    certify
    that
    the
    above
    Opinion
    was
    adopted
    on
    the
    /~
    day of
    ~
    ,
    1992,
    by
    a
    vote
    of
    ~
    (2~~
    ~.
    Dorothy
    M.~unn,
    .Clerk
    Illinois
    P~Sillution Control
    Board
    132—26 1

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