ILLINOIS POLLUTION CONTROL BOARD
August
8, 1991
IN THE MATTER OF:
R91—1
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(7—1—90 THROUGH 12—31—90)
)
ADOPTED RULES.
FINAL ORDER
OPINION OF THE BOARD
(by
3.
Anderson):
1Bya.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 and 725.
The Board will not
file the rules until after September 9,
1991, to allow time for
post—adoption review and comments by the agencies involved in the
authorization process.
As is discussed below, the Board has modified the proposed
rules
in response to public comment so as to make changes to the
wood preserving rules, and to the “Bevill exemption” and K066
listings.
The Board urges the United States Environmental
Protection Agency and the Illinois Environmental Protection
Agency to review these changes carefully.
The Board will not
file the rules until after September 9,
1991, to allow time for
post—adoption review and comment by the agencies involved in the
authorization process.
Section 22.4 of the Act governs adoption of regulations
establishing the RCRA program in Illinois.
Section 22.4(a)
provides for quick adoption of regulations which are “identical
in substance” to federal regulations;
Section 22.4(a) provides
that Title VII of the Act and Section
5 of the Administrative
Procedure Act shall not apply.
Because this rulemaking is not
subject to Section
5 of the Administrative Procedure Act,
it is
not subject to first notice or to second notice review by the
Joint Committee on Administrative Rules
(JCAR).
The federal RCRA
regulations are found at 40 CFR 260 through 270.
This rulemaking
updates Illinois’ RCRA rules to correspond with federal
amendments during the period July
1 through December 31,
1990.
The Federal Registers utilized are as follows:
55
Fed. Reg.
31387
August 2,
1990
55
Fed. Reg.
32733
August
10,
1990
55 Fed.
Reg.
39409
September 27,
1990
55 Fed.
Reg.
40834
October
5,
1990
55 Fed. Reg.
46354
November
2,
1990
55 Fed. Reg.
50450
December
6,
1990
1The Board acknowledges the contributions of Morton Dorothy,
Mike McCainbridge and Anne Manly in preparing the Opinion and Order.
125—119
2
55 Fed. Reg.
51707
December 17,
1990
The August
2, August
10 and September 27,
1990,
actions are
all “clarifications” of the TCLP rules which were the main
subject of R90-10.
These result in no changes to the rules.
The
first two appeared prior to and were addressed in the Opinion
in
R90—lO.
In addition, on 56 Fed. Reg.
27332, June 13,
1991,
USEPA
published an “administrative stay” of the December 6,
1990, wood
preserving~rules,and on July 1,
1991,
a set of corrections to
the same rules.
As is discussed below,
the Board will address
these actions, even though they are outside the time frame of
this update.
The USEPA amendments include several site—specific
delistings.
As provided in 35 Ill.
Adm. Code 720.122(p),
as
amended in R90-17, the Board will not adopt USEPA site-specific
delistings unless and until someone files a proposal showing that
the waste will be generated or managed in Illinois.
PUBLIC COMMENT
The Board adopted a Proposed Opinion and Order on March 28,
1991.
The Proposal appeared on April 26,
1991, at
15 Ill. Reg.
5980.
The Board has received the following public comment:
PC
1
Beazer East,
Inc., May 13,
1991
PC
2
Administrative Code Division, May 16,
1991
PC
3
American Wood Preservers Institute, June 7,
1991
PC 4,
5
Koppers Industries,
June 10,
1991
PC
6
Big River Zinc, June 28,
1991
PC 7
Joint Committee on Administrative Rules
(JCAR),
May 1
—
3,
1991.
Exhibit A of PC
4 was inadvertently docketed as a separate
public comment, PC 5.
These will be referred to just as “PC 4”
below.
The JCAR comments were received over a span of several days.
They were grouped into a single public comment,
PC 7,
for
docketing after the other comment was received.
JCAR had no
questions about this rulemaking.
The Administrative Code
Division requested minor editorial corrections.
(PC
2)
Most of the public comment concerned a USEPA “administrative
stay” of the wood preserving rules.
(PC 1,
3,
4)
This is
125—120
3
discussed below, mainly in connection with Section 721.131,
721.135, 724.Subpart W and 725.Subpart W.
The Board has
effectuated the administrative stay by adding “Board Notes”
at
appropriate points in the rules.
Big River Zinc filed a motion for leave to file and a public
comment requesting the addition of a “Board Note” acknowledging
an administrative stay and/or federal court cases concerning
listing K066.
The motion for leave to file
is granted.
The stay
is discussed below.
EXTENSION OF TIME ORDERS
Section 7.2(b)
of the Act requires that identical
in
substance rulemakings be completed within one year after the
first USEPA action in the batch period.
If the Board
is unable
to do so it must enter an “extension of time” Order.
As
discussed above,
the first three Federal Registers in this batch
period result
in no change to the Board rules.
The due date for
this rulemaking is therefore October
5,
1991,
one year after the
first Federal Register which resulted in
a change.
This Opinion
is adopted well in advance of that date.
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 regulations 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
Wastestrearn 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
125—12 1
4
Phase
I RCRA regulations were adopted and amended as
45 PCB 317, February
4,
1982,
6
Ill. Reg.
4828,
April 23,
1982.
51 PCB 31, January 13,
1983,
7 Ill.
Reg.
2518,
March
4,
1983.
received Phase I interim authorization on May 17,
Reg.
21043).
regulations were adopted as follows:
R8l—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 311, June 20,
1986;
10 Ill.
Reg.
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-l4
May 23,
1991
(1/1/90 through 6/30/90)
125—122
stages.
The
follows:
•R8l—22
R82—18
Illjnois
1982
(47 Fed.
The UIC
5
R9l—4
Dismissed 2/28/91
(No USEPA amendments 7/1/90
-
12—31—91)
R9l—16
Next UIC Update Docket (1/1/91
—
6/30/91)
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)
125—123
6
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-l0
August 30 and September 13,
1990;
14
Ill. Reg.
16450, effective September 25,
1990
(TCLP Test)
(1/1/90 through 3/31/90)
R90—ll
April
11,
1991, May 23,
1991;
15 Ill.
Reg. 9323,
effective June 17,
1991
(Third Third)
(4/1/90
through 6/30/90)
R90-17
Delisting Procedures
(See below)
R9l-1
This Docket
(7/1 through 12/31/90)
R91-l3
Next RCRA Docket
(1/1/91
-
6/30/91)
Illinois received final authorization for the RCRA program
effective January 31,
1986.
The Underground Storage Tank rules were adopted in R86-l 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)
R89—4
July 27,
1989; 13 Ill. Reg.
15010, effective
September 12,
1989
(Financial assurance, October
26,
1989)
R89—10
February 22, 1990;
14 Ill.
Reg. 5797, effective
April 10,
1990 (Initial update, through 6/30/89)
125—124
7
R89—19
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;
15 Ill. Reg.
6527,
effective
April
22,
1991
(1/1/90
—
6/30/90)
R9l—2
July 25, 1991
(7/1 through 12/31/90)
R9l!.14
Next UST Docket (1/1/91
-
6/30/91)
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 247, 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 and Envirite:
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
USX, Proposed June 6,
1991;
15 Ill.
Reg.
9288,
June 28,
1991
The Board modified the delisting procedures to allow the use
of adjusted standards in lieu of site-specific rulemakings:
R90—17
February 28,
1991;
15 Ill.
Reg.
7934,
effective
May 9,
1991
The Board has procedures to be followed in cases before it
involving the RCRA regulations:
R84—10
62 PCB 87,
349, December 20,
1984 and January 10,
1985;
9
Ill. Reg.
1383, effective January 16,
1985.
The Board also adopted 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
125—125
8
restricting the landfilling of liquid hazardous waste,
hazardous
wastes containing halogenated compounds and hazardous wastes
generally:
R81—25
60 PCB 381, October 25,
1984;
8 Ill.
Reg.
24124,
December
4,
1984;
R83—28
February 26,
1986;
10 Ill.
Reg. 4875,
effective
March 7,
1986.
R86L9
-
Emergency regulations adopted at 73 PCB 427,
October 23,
1986;
10
111. 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).
Economic Impact hearings have recently been
completed.
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.
In a few instances in identical in substance rules decisions
are not appropriate for Agency action pursuant to a permit
application.
Among the considerations in determining the general
division of authority between the Agency and the Board are the
following:
1.
Is the person making the decision applying a Board
regulation, or taking action contrary to (“waiving”)
a
Board regulation?
It generally takes some form of
Board action to “waive”
a Board regulation.
For
example, the Agency clearly has authority to apply a
regulation which says “If A, do X;
if not A, do 1”.
125—12 6
9
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
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 variance is not an appropriate mechanism for a decision
which is not based on arbitrary or unreasonable hardship,
or
125—127
10
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.
BASE TEXT FOR R9l-1
R90—ll, the RCRA update for 3/1 through 6/30/90, was pendinc
as of the date of this proposal.
Many of the Sections in this
were amended in that Docket.
This is indicated in the detailed
discussi6n of each Section below.
Because R90-l1 was still pending when this proposal came
out,
the changes to be made in that Docket had to be shown in
this Docket also.
For example,
a portion of the proposal in this
Docket might have looked like this:
Pre-R90-ll
base text
Text
to be repealed in 1190
11
Text
to be adopted in R90-11
-EText to be repealed in
1101-1
IText to be adopted in R91-ll.
Since R90—11 has been filed,
this Proposal has to be reformulated
to show the base text as amended in R90-l1.
As reformulated, the
above example would appear as follows:
Pre-R90-ll
base text
Text
adopted in R90-ll
-Text
to bc repealed in 1191
1) jText to be adopted in R9l-
;u.
Reformulating the base text essentially involves identifying the
R90-ll portions of the proposal, and carrying out the actions
indicated by the striking and underlining, while reviewing to
identify changes which were made prior to final adoption of R90-
11.
DETAILED DISCUSSION
A Section—by—Section discussion of the amendments appears
below.
The federal actions involved in this rulemaking are
summarized as follows:
August
2,
1990
TCLP Correction
•
August 10,
1990
TCLP Correction
September 27,
1990
TCLP Correction
October 5,
1990
Reinjection of wastes from hydrocarbon
recovery
November 2,
1990
Refinery sludges
December 6,
1990
Wood preserving wastes
December 17,
1990
Corrections to refinery sludges
The first three actions are “clarifications” to the TCLP
rules, which were the main topic of R90—lO.
These result in no
125—128
11
changes to the rules.
The December
6,
1990, wood preserving
rules are subject to a stay and corrections, which are discussed
below.
STAY OF WOOD PRESERVING RULES
Most of the changes derive from the December
6 Federal
Register, concerning wood preserving wastes.
These involve new
Subparts in Parts 724 and 725.
The wood preserving rules were
subject ~o an administrative stay at 56 Fed. Reg. 27332,
June 13,
1991,
and to a correction at 56 Fed. Reg.
30192, July 1,
1991.
The Board has also addressed these in this update,
as
is
discussed in detail below.
Several commenters asked the Board to give effect to the
stay in this rulemaking.
(PC
1,
3,
4)
One commenter asked the
Board to defer action until after the stay.
(PC 4)
This,
and
the following discussion of the Big River Zinc comment require a
general discussion as to how the Board reacts to stays and
remands of rules at the federal level.
The stay involved in this rulemaking occurred before the
Board adopted the rule in question.
Thus, the issue of the stay
is before the Board at the time of original adoption.
Other
stays and remands have occurred subsequent to the Board’s
adoption of the rules.
In such a case,
the Board is not
obligated to reopen the rulemaking to modify or repeal the
identical in substance rule in anticipation of USEPA’s action in
modifying the rules.
However, the Board regards the federal stay
or remand as applying to the State’s identical in substance rule,
which has no independent regulatory basis.
(In the Matter of
Pretreatment Regulations, R86—44, December 3,
1987,
at p.
39;
R90-2,
Order of August
9,
1990)
The question is somewhat different when the stay or remand
arises prior to the Board’s adoption of the rule in question.
Ignoring the stay or remand becomes a positive action of adopting
a rule which may incorrectly state the obligations of the persons
who will have to comply with the rule.
However, deferring action
on the rulemaking is not generally the appropriate response.
One
problem with this approach is that the Board’s rules would not
read the same as the USEPA rules.
While the latter would say:
“Do X (but don’t do X until the stay is lifted)”, the Board rule
would be silent.
Sections 7.2 and 22.4(a)
of the Act require the Board to
adopt,
within certain time frames, regulations which are
“identical in substance” to USEPA regulations.
This update is a
“batch” involving USEPA actions between July 1 and December 31,
1990.
Under Section 7.2(b), the Board must complete the
rulemaking within one year after the adoption date of the first
USEPA rule in the batch.
As
is explained above,
this rulemaking
125—129
12
must be completed by October 5,
1992.
Deferring action until the
stay is removed might cause the Board to miss the due date.
Furthermore, the Board’s statutory authority for adopting the
rules is triggered by federal adoption, with no mention of the
lifting of stays.
Although the Board could defer action and adopt the rules
after the deadline with an appropriate explanation under Section
7.2(b) of the Act, deferring action would lead to severe
practical problems in maintaining the “identical
in substance”
State rules.
The adoption process is simplest if the State rules
are adopted in the same temporal order as the USEPA rules.
Deferring action would require that the wood preserving rules be
adopted at some later date out of sequence.
At a minimum, this
would require an extra layer of review to guard against
inadvertently repealing provisions which may have been added in
the interim.
Because of these problems, the Board cannot automatically
defer action on a USEPA rule which has been stayed or remanded by
a court prior to adoption by the Board.2
Rather, the Board has
to adopt, within the statutory timeframes,
a State rule
reflecting the USEPA action as modified by the stay or remand.
In other words, returning to the example above, the Board’s goal
is to adopt a rule which says “Do X
(but don’t do X until the
stay is lifted)”, thereby approximating the USEPA rule as closely
as possible.
With respect to the wood preserving stays,
USEPA has
effectuated most of the stay by inserting into the text of its
rules “notes” articulating the stay.
As is set forth below, the
Board is able to adapt these notes,
and insert similar language
into the Board rules at appropriate points, thereby achieving an
“identical in substance” rule in a very efficient manner.
Notification Requirement for Stay
USEPA has added notes to the listings F032, F034 and F035 in
40 CFR 261.31 721.131,
and following 40 CFR 264.573(a) (4) and
265.543(a)(4).
The notes following the listings include a
requirement that, to be eligible for the stay, the generator
notify USEPA by August
6,
1991,
and again on November 6,
1991.
The August
6 date passed before these rules were adopted.
There
is a question as to whether the Board ought to condition the stay
on the August
6 notification to USEPA,
or, alternatively,
2There may be cases
in which the appropriate Board response
to a stay or remand would be to defer action.
For example, if the
stay or remand indicated that USEPA was about to repeal a rule in
its entirety, there would be no point in adopting it in the first
place.
However, this is not the case here.
125—130
13
establish a later date with notification to the Agency.
This depends on the difference between a “HSWA” and “non-
HSWA” RCRA requirement.
A “HSWA”
requirement is one adopted
pursuant to the 1984 Hazardous and Solid Waste Amendments to the
federal RCRA Act.
HSWA requirements become effective as federal
law upon adoption by USEPA, even in authorized States.
Non-HSWA
requirements, on the other hand, become effective (in an
authorized State,
such as Illinois)
only upon adoption by the
State.
As explained by USEPA at 55
Fed.
Reg.
27332, June 13,
1991,
while the F032 listing (chlorophenolic preservatives)
is a HSWA
requirement, the F034 and F035 listings, and the management
standards,
are non—HSWA requirements.
Therefore,
while the F032
listing became effective upon federal adoption, the other
listings and management standards will not become effective until
State adoption.
Although the F034 and F035 listing Notes include
the August
6 notification requirement3, the federal rule itself
is not yet effective in Illinois.
Persons subject to the HSWA requirements relating to the
F032 (chiorophenolic) listing were required to notify USEPA by
August
6 to get the stay.
It
is unlikely that USEPA would allow
the Board to extend this date.
Furthermore,
it is unnecessary to
require a second notification to the Agency.
Therefore,
the
Board will adopt the rule granting the stay,
conditioned on
notification having been made to USEPA by August
6.
On the other hand, persons who are not subject to the HSWA
requirements could argue that,
since they were not yet subject to
the rules, they did not have to notify USEPA by August
6.
They
may not have done so, since they may have assumed that the State
would defer action on the listing until after the stay was
lifted.
Such persons ought to have the opportunity to receive
the State rule prior to the date the notice
is required.
It is
unlikely that USEPA would object to extension of this date,
since
it has indicated that it doesn’t care whether the States even
adopt this portion of the rules at this time.
Since USEPA may
reject notifications from non-HSWA notifiers,
the Board has
adopted this so as to grant the extension to persons based only
on notification to the Agency.
As discussed above, the Board intends to allow the non-HSWA
persons to notify after the Board rules become effective.
At
this time, the Board estimates that these rules will become
effective by October 6,
1991, depending on the volume of post-
3ApparenUy IJSEPA stayed the non-HSWA requirements to prevent
State adoption or provide a pattern rule for State stays,
as well
as to stay these listings in USEPA-administered states.
125—13 1
14
adoption comment.
As was discussed above, the USEPA rule
requires a second notification by November 6,
1991.
The Board
has therefore adopted language allowing the August 6 notification
to be combined with the November
6 notification.
The Board has modified the Notes following the F034 and F035
listings,
in Section 721.131, to read as follows:
...Furthermore, the F034 and F035 listings are
administratively stayed with respect to the process
area receiving drippage of these wastes provided that,
by November 6,
1991,
persons desiring to continue
operating notify the Agency of their intent to upgrade
or install drip pads,
and provide evidence to the
Agency that they have adequate financing to pay for
drip pad upgrades or installation,
as provided in the
administrative stay...
•
There is a possibility that the filing of these rules may be
delayed beyond November 6.
If this happens, the Board will
consider whether it is necessary to further extend the date.
CORRECTIONS TO WOOD PRESERVING RULES
The wood preserving rules were also subject to a USEPA
correction at 56 Fed.
Reg.
30192, July
1,
1991.
Although this is
outside the time span of this batch period, the Board has made
the corrections indicated, since many of these address errors
noted by the Board in the Proposed Opinion.
In several instances
USEPA has adopted precisely the language earlier proposed by the
Board.
The July 1 correction makes no reference to the June 13
stay.
The Board interprets the correction as an independent
regulatory action which is correcting editorial errors in the
original December 6,
1990, publication of the wood preserving
rules,
rather than as the anticipated regulatory action lifting
the stay.
However, one of the Sections receiving “notes”
in
connection with the stay,
40 CFR 264.572,
is renumbered and
republished
(as 264.573)
in the correction.
USEPA has dropped
the “note” from the correction.
The Board construes this as an
editorial error by tJSEPA, rather than as a repeal of the “note”.
BIG RIVER ZINC
Big River Zinc has filed a comment requesting addition of a
note to listing K066 in Section 721.132, reflecting the remand of
that listing by a federal court.
(PC 6)
This is related to the
above general discussion concerning stays and remands of federal
rules in connection with the wood preserving rules.
However,
this remand has a long history.
125—132
15
Bevill Exemption and K066
Big River’s problems concern two related RCRA rules.
The
first
is the “Bevill exemption” of Section 721.104(b) (7)
261.4(b)
(7),
which excludes from the definition of “hazardous
waste” certain “solid waste from the extraction, beneficiation
and processing of ores and minerals”.
The second is listing K066
in Section 721.132
40
CFR 261.323, which “listed” as hazardous
waste,
“sludge from treatment process wastewater or acid plant
blowdown from primary zinc production”.
USEPA”lists”
a waste when it determines that the waste
generally has a hazardous characteristic.
In the case of K066,
USEPA determined that the described wastes generally have lead
and cadmium
(Section 72l.App G).
Wastes which are “listed” are
hazardous regardless of whether the hazardous characteristic is
present in a given quantity of waste.
Furthermore,
a listed
waste cannot be treated so as to render it “nonhazardous” for
regulatory purposes.
(Section 721.103(d) (2))
Listings may be overinclusive, because a particular waste
may not actually exhibit any hazardous characteristics,
or may
have been treated to remove those characteristics.
The
“delisting” procedures are available to remove wastestreams which
meet within a listing, but which do not in fact have any
hazardous characteristic.
Delisting is addressed in Section
720.122,
as amended in R90—17.
The hazardous waste determination
is as provided in Section
722.111
262.11.
The first question is whether a zinc
production waste is exempted under Section 721.104(b) (7).
Generally, this depends on whether the waste is from the
“beneficiation” of ores
(exempted) or from the “processing” of
ores (“unexempted”,
i.e.,
potentially included in the definition
of hazardous waste).
If the waste is unexempted,
the second
question is whether the waste is
“listed”, specifically, whether
the waste fits within the K066 listing,
i.e., whether it is
“sludge from treatment of process wastewater or acid plant
blowdown from primary zinc production”.
If not, the third
question is whether the waste exhibits a characteristic of
hazardous waste,
such as corrosivity or the toxicity
characteristic,
as defined in Sections 721.120 through 721.124
261.20
—
261.24.
The order
in which these rules are addressed is critical to
the outcome.
As is discussed below,
Big River has become subject
to an “unexemption”, which means its wastes are potentially
hazardous.
If the wastes fall within a presently-enforceable
hazardous waste listing, the wastes are hazardous wastes whether
or not they also exhibit any hazardous waste characteristic(s).
However,
if this waste is not subject to a presently—enforceable
hazardous waste listing, Big River’s waste
is a hazardous waste
125—133
16
only if it exhibits a hazardous characteristic.
Beneficiation and Processing
•
As worded,
40 CFR 261.4(b)(7)
exempts wastes from the
“beneficiation and processing” of ores and minerals.
While it
then goes on to define “beneficiation”
in a general manner,
it
defines “processing” as limited to certain specific, exempted
processing operations.
In other words, the Section exempts
wastes fz~om“beneficiation” and certain listed processing
operations.-
It therefore appears to include all other, unlisted
processing operations.
As presented in the comments
(and in the above discussion),
this rule is simplified to:
“beneficiation is exempt;
processing is not exempt”
(See PC
6 in R9l-11, and attached
letter of May 22,
1991 from USEPA).
However, using the terms as
defined in the rules, as we construe them, the rule ought to be
stated as:
“beneficiation and listed processing is exempt;
unlisted processing is not exempt”.
In this Opinion the Board will use the term “processing”
as
it is used in the comments:
“processing” means
“unlisted
processing”,
i.e “something which is not ‘beneficiation’
and
which is not specifically listed as exempted
‘processing’”.
Procedural History
R89—l
USEPA modified the Bevill exemptions and added listing K066
at 53
Fed.
Reg.
35420, September 13,
1988.
The Board adopted
State equivalents in R89-1, on September 13,
1989.
At the
request of Big River,
in an Order entered October 18,
1989,
the
Board added delayed effective dates to a portion of the Bevill
unexemption,
and to listing K066.
As modified, the unexemption
and listing were to become effective in Illinois on June 30,
1990, which was reckoned to be the last day for the State to
respond to the September 13,
1988, Federal Register pursuant to
40 CFR 271.21(e)(2)(iii)
(l990)~.
R90—2
USEPA next amended the Bevill exemptions at 54 Fed. Reg.
36641,
September 1,
1989.
The Board responded to this action in
R90-2,
in an Opinion dated July 3,
1990, and a short Order of
August 9,
1990.
What happened in R90-2
is obscured by a major change in the
4This was cited as 271.21 (a) (2)
in R89—1.
The citation given
is to the current CFR.
125—134
17
format of the USEPA rule.
While the R89-l Bevill rules were
written as a series of specific unexemptions, the R90—2 rules
were specific exemptions.
The unexemption of concern to Big
River, to which the Board had added the delayed effective date,
disappeared from the rule, with the result that Big River’s waste
became unexempted in silence.
The. Board responded to this by
adding an exemption, with a termination date of June 30,
1991,
which was reckoned as the final date for State adoption of the
September 1,
1989, USEPA amendments pursuant to 40 CFR
271.2l(e)~(2) (iv)
(199O)~.
During the Board’s consideration of R9O-2, the United States
Court of Appeals for the District of Columbia remanded the K066
listing to USEPA for further action.
American
Mining Congress
v.
USEPA,
907 F.
2d 1179
(DC 1990)3
“ANC”.
As noted above in
connection with the wood preserving stay,
in R90-2 the Board
stated that it regarded the
ANC
decision as binding on the
derivative State rules.
The remand is the main focus of Big
River’s comment in this matter.
R90—10
As though the matter was not confusing enough, USEPA again
renumbered the Bevill exemptions at 55 Fed. Reg.
2353, January
23,
1990.
The Board adopted the renumbering in R90-lO, on August
30,
1990.
At this time, the Bevill exemption of concern became
Section 721.104(b) (7) (U).
PCB 91—61
On April
8,
1991,
Big River filed a variance petition with
the Board,
docketed as PCB 91-61.
The petition requested a
variance which would essentially extend the Bevill exemption
applicable to Big River.
On July 11,
1991,
the Board dismissed
the variance petition on Big River’s motion.
R9l—ll
The Board opened Docket R9l-ll to consider whether to extend
the exemption of Section 72l.l04(b)(7)(U).
On August
8,
1991,
the Board dismissed that proceeding in favor of action in this
proceeding.
R9l-1
(This Docket)
Big River has filed a public comment in this Docket
requesting the addition of a note to listing K066 in Section
721.132.
Big River has asked that a note be added “reflecting
5This was cited as 271.21(a) (3)
(1989)
in R90—2.
The citation
given is to the current CFR.
125—135
18
the proper status of this listing”.
Description of Big River!s Process
Big River is a primary zinc producer.
The following is a
brief description of its process, drawn from the variance
petition in PCB 91-61.
Production Operations
Big’River uses a zinc sulfide ore which is high in
magnesium.
The magnesium is removed in a preleaching operation
with dilute sulfuric acid.
All participants agree that this is a
beneficiation operation, which is therefore subject to the Bevill
exemption,
so that any wastes would not be hazardous,
regardless
of listings or characteristics.
The purified zinc sulfide is processed into zinc by:
roasting to zinc oxide;
leaching with sulfuric acid to form a
-
zinc sulfate solution;
settling and purification to remove other
metal salts for sale;
electrowinning;
and casting.
Any wastes
from these processes would be “processing”6 wastes, and hence
potentially hazardous.
The roasting process generates sulfur dioxide.
This is
routed through air pollution-type equipment to the acid plant,
which produces sulfuric acid.
This is used in the leaching and
preleaching operations.
Since this is downstream of the first
“processing” operation7, any wastes are outside the Bevill
exemption,
and hence are potentially hazardous.
Waste and Recycling Operations
The production operations produce two primary wastestreams
of concern.
The first is the acid plant blowdown.
This is
discharged to a 100,000 gallon basin.
Part of the water is
reused as makeup water for the preleaching operation.
The
overflow from the basin is discharged to a 900,000 gallon basin.
The second primary production waste is the filtrate from the
6Big River argues that the roasting and leaching processes
are also
“beneficiation”,
and therefore
subject
to the
Bevill
exclusion.
For purposes of discussion,
the Board
is accepting
USEPA’s position, as articulated in the May 22,
1991, letter which
is attached to Big River’s comment (PC
6 in R91-ll).
7However,
if
one
accepted
Big
River’s
argument
that
the
roasting and leaching operations are also “beneficiation”, the acid
plant would arguably also be beneficiation.
125—136
19
preleaching operation (i.e. magnesium sulfate, or Epsom salt,
in
solution).
This is discharged directly to the 900,000 gallon
basin.8
The wastewater treatment operations themselves yield several
secondary wastestreams.
The first is solids from the 900,000
gallon basin, which are recycled as ore into the initial
beneficiation step.9
The second is wastewater,
which is
discharged to Big River’s pretreatment plant, and hence to the
Village 9f Sauget’s physical/chemical treatment plant, which in
turn discharges to Sauget’s American Bottoms regional wastewater
treatment plant.
The final wastestream is the filter cake produced by Big
River’s pretreatment plant.
This is the principal waste of
concern.
Nature of the Filter Cake
If the filter cake is derived from a listed hazardous waste,
it is itself a listed hazardous waste under Section
72l.103(d)(2).
As is discussed above, the filter cake is derived
from the preleaching filtrate and the acid plant blowdown.
If
either of these are a listed hazardous waste, the filter cake is
a hazardous waste.
The preleaching filtrate is from
a beneficiation operation.
It is therefore exempted under the general language of the Bevill
exemption in Section 72l.104(b)(7).
It is not a hazardous waste,
regardless of any listing or characteristic.
On the other hand, the acid plant blowdown is from a
6Big
River
does
not
identify
any
other
wastes
from
the
processing operations.
The absence of wastes may be in part due
to the settling and purification steps which produce salts of toxic
metals
(lead, silver, copper, cadmium, nickel and cobalt)
for sale.
These might otherwise simply be discarded as sludges or muds from
these processes.
To the extent these processes may produce wastes,
they are potentially outside the Bevill exclusion,
and need to be
judged individually.
9lnternal recycling operations are generally exempt from the
definition of “solid waste”, and hence from the RCRA program, under
Section
721.102(e)(1)(C).
However,
this,
and
several
other
internal
recycling
operations,
arguably
place
the
preleaching
“after” the downstream processing, making it “processing”, bringing
it into the RCRA program.
Big River has indicated that
it will
take “whatever steps may be necessary” to avoid this.
It would be
regrettable
if the RCRA rules were construed so as to discourage
this type of internal recycling.
125—13 7
20
processing operation.1°
It therefore does not fall under the
Bevill exemption, and is potentially a hazardous waste.
Since
acid plant blowdown is within the K066 listing, the filter cake
is listed K066 waste, to the extent that listing may be valid.
This would mean that the filter cake would be a hazardous waste
regardless of characteristics,
and that it could not be treated
so as to render it “nonhazardous” for regulatory purposes.
Assuming the K066 listing is invalid, then the filter cake
would be hazardous only if it exhibited a characteristic of
hazardou~waste under Section 721.120 et seq.
Furthermore, the
waste could be treated to remove the characteristic.
Effect of the K066 Remand
As
is discussed above,
Big River has rec~uestedthe addition
of a note to listing K066 in Section 721.1321
.
To add the
appropriate note, the Board has to determine the effect of the
remand on the State program.
This depends on:
the meaning of
the remand itself;
what tJSEPA requires in the way of
“equivalency”
in the State program;
what Illinois law requires
in the “identical
in substance” mandate;
and, the Board’s
statutory authority to acknowledge the remand in the regulations.
Meaning of the Remand
The federal court
in
ANC
remanded the K066 listing to USEPA
because the listing was arbitrary and capricious,
in the absence
of an adequate statement of basis in the USEPA preamble.
The
Board’s adoption of the derivative State rule did not cure the
deficiency in the USEPA action,
since the Board had no rulemaking
record before it, beyond the USEPA rule and preamble, when it
adopted the derivative rule.
Nor is the Board going to re-
evaluate the USEPA record for sufficiency and substitute its
judgment for the federal court’s.
In R91-11 and PCB 91-61, Big River went to great lengths to
obtain a definitive statement from the Agency and/or USEPA as to
the effect of the remand.
We really do not have such a statement
at this point.
The Board believes that USEPA has recognized that
the
federal remand has thrown the present enforceability of the
10This is subject to the above acceptance of USEPA’s position
as to the dividing line between beneficiation and processing.
11This discussion concerns the K066 listing.
The Board will
below revisit the questions presented in PCB 91—61 and R91-ll, to
determine the
status
of
the Bevill
exclusions,
and
to consider
whether
it is appropriate to add a note to Section 721.104(b) (7)
in this Docket.
125—138
21
hazardous waste listing into doubt.~2
At some time in the future, USEPA will presumably revisit
the K066 listing pursuant to the remand.
USEPA’s possible
actions include:
repealing the K066 listing;
modifying the
listing so that it would be supported by the earlier statement of
basis;
issuing a new statement of basis supporting the earlier
language;
or,
a combination of a modified listing and with a
supplemented statement.
Big’River Zinc has asserted in its April
8,
1991 variance
petition in PCB 91—61:
Big River was advised regarding the U.S. EPA’s
anticipated actions in response to that remand was a
low priority, and that it was unlikely that K066 would
be relisted.
Thus, sludges which had been designated
as K066,
even if they did not fall under the Bevill
amendment, would only be hazardous wastes
if they were
characteristically hazardous.
Since Big River’s sludge
is not characteristically hazardous,
at least this
potential problem appeared to be resolved for the time
being.
Petition for Variance in PCB 91—61 at
3
(filed April
8,
1991).
USEPA Program Requirements:
“Equivalency”
Sections 3006(b) and 3009 of the federal RCRA Act require
the State to maintain a program which is “equivalent” to the
federal program.
40 CFR 271 regulates the contents of the State
program.
One limitation on the Board’s action is that it must
have rules which are “equivalent” to the USEPA program for
Illinois to attain and maintain the RCRA program.
As discussed in today’s Order of the Board in the R91-ll
proceeding,
although USEPA requires the Board to adopt the
termination of the Section 721.104(b) (7) (U) exemption effective
July 1,
1991, USEPA has stated that it does not similarly require
that the Board have adopted the K066 hazardous waste listing.
USEPA has stated that,
in connection with the K066 listing:
...TJhe
States’ RCRA authorization is not in jeopardy
for lack of an immediately—effective listing.
(PC
4
and 5 in R91—11).
~2TheBoard cannot determine this issue of federal law at this
time.
The
Board
recognizes
that
issues
exist
as
to
the
enforceability of the K066 listing until USEPA has complied with
the judicial remand.
125—139
22
At a minimum, USEPA does not expect the States to enforce
the K066 listing.
The Board therefore concludes that federal law
does not require it to adopt this listing to maintain program
“equivalency”.
Program Requirements:
“Identical in Substance” Mandate
The Act requires the Board to maintain regulations which are
“identical
in substance”13 with USEPA rules.
This represents a
second limitation on the Board’s action in response to a stay.
Not only must the Board satisfy the federal mandate to maintain
“equivalency”, but it must also meet the State “identical in
substance” mandate.
As provided in Section 7.2(a)
of the Act,
this requires regulations:
...W)hich
require the same actions
...
as would
federal regulations if USEPA administered the subject
program in Illinois...
To meet this requirement, the Board must determine whether
USEPA itself enforces the K066 listing.
Based on USEPA’s
comments in R91-ll, the Board
is confident that USEPA does not so
enforce this listing.
In other words,
a person in a USEPA—
administered state would not have to comply with this listing.
The Board’s rules, without the K066 listing, would therefore be
“identical
in substance” with the USEPA rules, pending USEPA
action on the remand.
Authority to Acknowledge Remand
The Board has several options as to how to carry the remand
into State law.
The simplest is to adopt the USEPA rule, with
the understanding that the rule
is subject to the remand.
Other
options include modifying the text of the rule to meet the
remand,
or adding “Notes” referencing the remand and/or
explaining its effect.
These other options raise a question as
to the extent of the Board’s authority to modify “identical in
substance” rules
in response to court actions.
In the RCRA program, USEPA adopts rules, then the Board
adopts regulations which are “identical in substance”.
As is
discussed above, the Board generally considers federal court
decisions concerning federal RCRA rules as binding on such
derivative State rules,
which have no true independent basis in
State law.
It is arguable that the ultimate interpretation of the
13These terms
are defined
in Sections 7.2(a)
and 22.4(a)
of
the Act.
125— 140
23
effect of the remand is strictly up to USEPA and the federal
courts, with the Board serving strictly as a passive conduit
carrying these into Illinois law.
However,
if someone attempted
to enforce the K066 listing against Big River, the question would
come before the Board in an enforcement action.
In such a case,
the Board would have to decide the effect of the remand to
determine the outcome of the case.
Since the Board clearly has
jurisdiction to decide this issue after the fact,
it must have
jurisdiction to make this determination in advance by way of
rulemaki~ig. Once the enforceability of a federal rule is thrown
into doubt,- we believe that the Board should make every effort to
address the question up-front in a rulemaking context.
As was also discussed above, the Board would face practical
problems if it were to attempt to anticipate the result of a
remand of a USFPA rule,
and modify the Board rule in advance of
the USEPA action on the remand.
However, where these remands are
brought to the Board’s attention,
it is desirable to acknowledge
the court action in the rule, so as to avoid any possible future
misunderstanding.
The mechanism of adding a “Board Note”,
as was
done above for the wood preservers,
is an appropriate option.
•
Adoption of “identical in substance” rules usually involves
the adoption of the verbatim text of USEPA rules.
However, under
Section 7.2(a)
of the Act, the Board is supposed to adopt:
...State regulations which require the same actions
with respect to protection of the environment, by the
same group of affected persons,
as would federal
regulations
if USEPA administered the subject program
in Illinois...
In a situation in which the Board knows that the USEPA regulation
says “Do X”, but means “Don’t do X”,
it is acceptable to adopt
“Don’t do X”.
The Board has therefore determined that it has the
power to acknowledge the
ANC
remand in the regulations.
Language of the K066 Note
• Big River differs from the wood preservers in that USEPA has
not given us a text for the appropriate notes.
The Board
therefore has to attempt to discern the appropriate note.
It would clearly be appropriate to simply add a note
referencing the
ANC
case, and let that case speak for itself.
Such a note might read:
BOARD NOTE:
The K066 listing was remanded to USEPA in
American Mining Congress v.
USEPA, 907
F.
2d 1179
(DC
1990).
One problem with this note is that it
is still subject to
125— 141
24
the possibility that somehow the remand could be resolved in a
manner such that USEPA might attempt to revalidate the K066
listing with possible retroactive effect.
For example, USEPA
might simply publish a new statement of basis for the listing,
without changing the regulation.
Big River might then be subject
to enforcement for failing to comply as of the original effective
date.
To avoid this possibility, the Board has adopted the
following note to insert after the K066 listing:14
BOARD NOTE:
This waste listing is the subject of a
judicial remand in American Mining Congress v. EPA, 907
F. 2d 1179
(D.D. C.
1990)
.
The Board intends that this
listing not become enforceable in Illinois until the
first date upon which the Board RCRA program becomes
“not equivalent to the Federal program,” within the
meaning of Section 3006(b)
of RCRA,
42 U.S.C.
§
6926(b),
the Board RCRA rules become “less stringent”
than the USEPA rules,
as this phrase is used in Section
3009,
42 U.S.C.
§
6929,
or the Board RCRA rules are not
“identical
in substance” with the federal rules as that
term is intended by Ill. Rev. Stat.
1989 ch.
111½, par.
1007.2 and 1022.4 as a result of some action by USEPA
with regard to this listing in response to the American
Mining Congress remand.
As is discussed above, USEPA neither requires Illinois to
have an enforceable K066 listing, nor does USEPA itself enforce
the K066 listing at the federal level.
The Board intends that
the K066 listing not be enforceable in Illinois at least until
such time as USEPA makes a positive statement that it has
resolved the remand, thus making the K066 listing enforceable at
the federal level and a necessary component of the Illinois
program.
Effective Date for K066
As discussed above, the Board added a delayed effective date
to the K066 listing in R89-l.
Generally,
the Board removes
delayed effective dates from rules after they are past.
However,
in this case, there is another reason to remove the June
1,
1990
date:
it is wrong.
Left
in,
it could be construed as requiring
compliance on that date,
regardless of the remand.
The Board has
therefore deleted the date.
Bevill Exemptions
14This language is drawn from, and is substantially the same,
as the language proposed by the Board
in R9l-ll,
as
a Note to
Section 721.104(b) (7) (U).
It was reviewed and approved by USEPA
in that context.
125—142
25
Variance Request
Big River initially requested a variance in PCB 91-61 to
extend the temporary exemption of Section 72l.l04(b)(7)(U).
Big
River has withdrawn that variance request, and has not requested
modification of this Section in this Docket.
What Big River was really attempting to avoid is discharging
a listed hazardous waste to a surface impoundment.
If Big River
did so,
it would potentially be subject to RCRA closure and post-
closure care requirements, even if USEPA ultimately eliminated
the K066 listing.
Big River is committed to phasing out the basins in
question, replacing them with lined steel tanks, which would not
ordi~nari1ysubject Big River to post~closurecare,
even if the
tanks held hazardous waste.15
In PCB 91-61,
Big River was
requesting time to allow it to use other basins while it built
the tanks.
However, Big River did not file the petition in time
for the Board to grant it before the exemption expired.
(See
Modine v. IEPA,
PCB 88—25, July 25,
1991, pages 7—11)
At the time of the variance request, Big River was assuming
that its preleaching operation was a “processing” operation which
would be unexempted upon the expiration of Section
721.104(b) (7) (U)
•16
Now that Big River has been assured that
USEPA regards the preleaching as “beneficiation”,
it feels that
there
is no need for a variance to extend Section
721.104(b) (7) (U).
Emergency Rule
The Board opened Docket R9l-1l for the purpose of adopting
an emergency rule extending the expiration of Section
721.104(b) (7) (U) prior to July
1,
1991.
The Board distributed
suggested language for comment.
However, Big River has indicated
that, with USEPA’s interpretation of “beneficiation”,
it does not
need the exemption extended.
15A tank can ordinarily be closed by cleaning the tank and
removing
it.
On the other
hand,
“clean
closure”
of
a
surface
impoundment may require
removal
of contaminated
soil
under the
liner.
If all contamination cannot be removed,
the operator is
required to close the impoundment like
a landfill,
by placing an
impermeable cap over it.
The operator would be required obtain a
post—closure care permit and conduct groundwater monitoring for at
least 30 years.
(Sections 703.159, 724.217 and 724.328)
16Big River
is prepared to accept that the acid plant
is not
“beneficiation”, and is hence potentially hazardous.
(PC 6 in R9l-
11,
p.
2)
125—143
26
Repeal of Section 721.107(b) (7) (U)
As was discussed above, Seôtion 721.107(b) (7) (U)
is a
temporary exemption which the Board added at the request of Big
River Zinc,
after the USEPA rule was amended to unexempt Big
River in silence.
This subsection no longer has a federal
counterpart, and serves no purpose now that July
1,
1991 has
passed.
Furthermore, leaving it in the rule may result in a
substantjal divergence between the Board and USEPA rules.
While
Big River’s waste is now addressed under the general provisions
in the USEPA rules, the Board rule could be construed as
specifically including the Big River waste after July 1,
1991.
The Board has therefore repealed it in its entirety.
FORMAT CHANGES
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 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.
SECTION-BY-SECTION DISCUSSION
Part 703:
RCRA Permits
This Part governs applications for RCRA permits.
It is
closely coordinated with the HWM facility standards in Part 724,
below.
Section 703.212
This new Section is derived from 40 CFR 270.26, which was
added at 55 Fed. Reg.
50489,
and renumbered at 56 Fed.
Reg.
30192.
This specifies the RCRA permit application requirements
for drip pads at wood preserving plants, which are governed by
new 35 Ill.
Adm. Code 724.Subpart W.
This Section was proposed as Section 703.208, which would
correspond with 40 CFR 270.22.
The number has been changed to
“703.212”, to correspond with 40 CFR 270.26, the new number
assigned in the USEPA corrections to the wood preserving rules.
Several cross references to Part 724 have also been revised to
conform with other renumbering, discussed below.
40 CFR 270.26(c) (9) has two related requirements that the
125—144
27
application set forth provisions for cleaning pads and provisions
for documenting cleanings.
These are set forth in a single
sentence, each requirement with subordinate lists.
In Section
703.212(c) (9), the Board has broken these out into separate
subsections to improve readability.
Part 720:
General Provisions
Section 720.110
Thi~8ection is derived from 40 CFR 260.10, which was
amended at 55 Fed. Reg.
50482,
to add
a new definition of “drip
pad”,
a term used in connection with the wood preserving wastes
rules in 35
Ill.
Adm. Code 724 and 725.Subpart W.
This definition starts with “Drip pad is...”
All of the
other definitions start with “ABC means...”
The Board has
followed the latter format.
Section 720.111
The proposed wood preserving rules, discussed below mainly
in connection with Section 724.670 et seq.,
include a reference
to “Method 8290”
in SW—846, which is already incorporated by
reference in this Section.
In the Proposal, the Board cited to
the pre—existing reference in this Section.
However,
in the
USEPA correction at 56 Fed. Reg.
30192, July
1,
1991,
USEPA
indicated that “Method 8290”
is not in the current edition of SW-
846.
Rather,
it will be in an editions to be proposed in the
Summer of 1991.
The Board has therefore added a reference to the
proposed method.
This appears to be available from USEPA at Room
M2427,
401 M Street SW, Washington,
D.C.
20460,
202/475—9327,
Number F-90-WPWF-FFFFF.
Presumably USEPA will eventually update all the references
to SW-846 to the new edition.
However,
in the interim, we will
have references to two Editions of SW—846.
The Board has
therefore limited this reference to “Method 8290”.
At the time
all the references are updated, this limitation will need to be
removed.
As is discussed below in connection with Sections 724.673
and 725.543, the Board has added references to ASTM C-94 and ACI
—
318, which are used as examples for the design of wood
preserving drip pads.
Part 721:
Definition of “Hazardous Waste”
Section 721.104
This Section is derived from 40 CFR 261.4, which was amended
at 55 Fed.
Reg. 40837 and 50482,
to add a temporary exclusion for
125—145
28
groundwater which is reinjected pursuant to certain petroleum
recovery operations, and an exclusion for certain wood preserving
solutions which are reused.
This Section was amended in R90-ll
prior to this action.
Section 721.104(a) (9)
excludes from the definition of
hazardous waste spent wood preserving solutions which are
reclaimed and reused for their original intended purpose.
This
was corrected at 56 Fed. Reg. 30192 to specifically exclude
wastewat~rs. The final language in Section 721.104(a) (9)
is as
follows:
...The following materials are not solid wastes...Wood
preserving wastes.
A)
Spent wood preserving solutions that have been
used and are reclaimed and reused for their
original intended purpose;
and
B)
Wastewaters from the wood preserving process that
have been reclaimed and are reused to treat wood.
As is discussed above in connection with the Big River
comment, the Board has repealed Section 721.104(b) (7) (U)
in its
entirety.
This was a temporary exemption from the definition of
“hazardous waste” for certain zinc production wastes.
The Board
has repealed it now that it has expired.
However, these wastes
will not be listed as K066 wastes until the remand in the
ANC
case is resolved.
The petroleum recovery exclusion is in Section
72l..104(b)(ll).
This concerns the recovery of petroleum products
from groundwater following a release.
This can be done by
pumping contaminated groundwater to the surface, removing
petroleum and reinjecting the water.
For free product recovery
purposes, the process is most efficient if the reinjected fluid
is saturated with dissolved petroleum products.
(After the
product recovery phase
is completed, the dissolved product is
removed to complete the clean up.)
The saturated reinjection
fluid became a hazardous waste under the TCLP test adopted in
R90-10.
USEPA has added this temporary exclusion to keep the
reinjection out of the RCRA and hazardous waste TJIC rules, in
order to keep these groundwater cleanups going.
This is a temporary exclusion through January 25,
1991.
However, on February 1,
1991,
USEPA extended it through March 25,
1991.
The Board has adopted the latter date, even though it is,
strictly speaking, outside the scope of this update.
The March 25 date passed before this rulemaking was adopted.
The Board usually does not adopt provisions which expire before
Board adoption.
However, the Board has adopted this exclusion to
125—146
29
give retroactive recognition of the delayed effective date of
this aspect of the TCLP test.
There are a number of editorial problems with this Section.
First,
the subsection applies to groundwater which
is “reinjected
or infiltrated”.
USEPA probably means “reinjected or
reinfiltrated”,
or “injected or infiltrated”.
The Board has
followed the former alternative.
Secqnd, the USEPA subsection applies to operations “at
refineries
~
marketing terminals or bulk plants handling crude
petroleum
~ji~
intermediate products...”
USEPA probably means
“or” in each case,
so that the provision should read:
“at
refineries~ marketing terminals or bulk plants handling crude
petroleum ~
intermediate products..
.“
As worded, the USEPA
provision would apply only to something which is both a refinery
and a terminal or bulk plant,
and handling both crude and
intermediate products, a very restrictive condition which USEPA
probably did not intend.
Section 721.131
This Section is derived from 40 CFR 261.31, which was
amended at 55 Fed. Reg.
46395,
50482 and 51707.
The first and
last of these add and correct listings F037 and F038,
concerning
petroleum refinery sludges.
The second adds listings F032,
F034
and F035, concerning wood preserving wastes.
This Section was amended in R90-ll, mainly through the
addition of listing F039.
Listings F032, F034 and F035 were subject to a USEPA
“administrative stay” which appeared in the Federal Register on
June 13, 1991.
(PC 4)
The Board has added a “Board Note”
containing USEPA’s stay language, with modifications appropriate
for a State rule.
The language adopted by the Board is as
follows, applicable only to F032:
BOARD NOTE:
The listing of wastewaters that have not
come into contact with process contaminants is stayed
administratively.
The listing for plants that have
previously used chlorophenolic formulations is
administratively stayed whenever these wastes are
covered by the F034 or F035 listings.
These stays will
remain in effect until further administrative action is
taken.
Furthermore, the F032 listing is
administratively stayed with respect to the process
area receiving drippage of these wastes provided
persons desiring to continue operating notify USEPA by
August
6, 1991,
of their intent to upgrade or install
drip pads,
and by November 6,
1991,
provide evidence to
USEPA that they have adequate financing to pay for drip
125—14 7
30
pad upgrades or installation, as provided in the
administrative stay.
The stay of listings will remain
in effect until February 6,
1992, for existing drip
pads, and until Nay 6,
1992,
for new drip pads.
The Board has modified the note applicable to the F034 and
F035 listings as discussed above in connection with the stays.
Persons subject to these non—HSWA listings will have until
November 6 to notify IEPA of their intentions,
if they wish to
become subject to the stay.
The language adopted by the Board is
as follo~’~s:
BOARD NOTE:
The listing of wastewaters that have not come
into contact with process contaminants is stayed
administratively.
These stays will remain in effect until
further administrative action is taken.
Furthermore, the
F034 and F035 listings are administratively stayed with
respect to the process area receiving drippage of these
wastes provided that, by November 6,
1991,
persons desiring
to continue operating notify the Agency of their intent to
upgrade or install drip pads,
and provide evidence to the
Agency that they have adequate financing to pay for drip pad
upgrades or installation,
as provided in the administrative
stay.
The stay of listings will remain in effect until
February
6,
1992,
for existing drip pads, and until May 6,
1992,
for new drip pads.
New listings F037 and F038 concern certain petroleum
refinery wastes.
The amendments also add a new subsection
(b),
with specialized definitions for use with the listings.
There
are a large number of editorial problems with these provisions.
The final lines of F037 and F038 were corrected at 55 Fed.
Reg.
51707 to change “exempted from” to “not included in”.
Also,
in Section 721.131(b) (2) (B) (ii),
“actually treated” was changed
to read “actually generated”.
The Board has included these USEPA
corrections.
The Board has also made additional editorial
corrections.
Most of the additional corrections concern the use of
“and/or”
and
“and”.
USEPA has used “and/or” and “and” to mean
“or”
at many points in the text.
As used in the Administrative
Code,
“A
or
B”
means
“A
or
B
or
both”.
The
Board
has
therefore
changed
“and/or”
to
“or”.
An
example
of
this
occurs
in
the
first
line
of
F038.
The
USEPA includes any “sludge and/or float”.
The Board has rendered
this as “sludge or float”, with the understanding that,
as used
in the Code, this means “sludge or float or both”.
“And/or”
is also used in 40 CFR 261.31(b) (1), which
provides:
“For the purpose of the F037 and F038 listings,
oil
/
125—148
31
water
/
solids is defined as oil and/or water and/or solids.”
Consistent with the above discussion, the Board has rendered this
as:
“For the purpose of the F037 and F038 listings,
oil
/
water
/
solids is defined as oil or water or solids.”
Although this
says the same thing as the USEPA rule,
it seems to include pure
oil as an F037 or F038 waste.
It may be that the USEPA really
means “oil and (water or solids)”, or some other combination.
The Board solicited comment on this, but received no response.
The ,USEPA rule also uses “and” where “or” was apparently
intended.
-For example,
40 CFR 261.31(b) (2)
(ii)
provides that
“Generators and
(owners or operators of)
treatment,
storage and
disposal facilities” have the burden of proving exemption.
USEPA
probably means that this should apply also to the operator of
facilities which are strictly treatment or storage.
The Board
has defined “TSD” as an acronym for “treatment,
storage or
disposal”,
and used this instead.
The Board has also worded this
so as to place the burden on the owner or operator, rather than
the inanimate facility.
The final sentence in listing F038 includes a list of
exclusions.
This reads as follows:
“Sludges
...,
sludges
and F037,
K048, and K05l
...
are not included.”
The Board has
rendered this more clearly by replacing the “and” inside the list
with a comma,
as follows:
“Sludges
...,
sludges
...,
F037, K048
and K05l
...
are not included.”
There are also two minor problems with 40 CFR
26l.31(b)(l)(ii)(A).
“The units employs” has been revised to
“the unit employs”.
The Board has replaced “6 hp” with “6
horsepower”, which is presumably what USEPA intends.
Section 721.132
As is discussed above in connection with the Big River
comment, the Board has added to the K066 listing a note
referencing the ANC case,
and the remand of the USEPA listing.
The Board has also deleted the past compliance date for this
listing.
Section 721.135
This new Section is derived from 40 CFR 261.35, which was
added at 55
Fed. Reg.
50483.
This excludes certain wood
preserving wastes from the listings after cleaning or replacement
of certain equipment.
The USEPA wood preserving rules have very long sentences
with multiple lists.
In the Proposal, the Board attempted to
break the longer ones up to make them more understandable.
In
some cases this process revealed grammatical errors in the maze,
which the Board proposed to correct.
The worst was 40 CFR
125—149
32
261.35(b).
The Board placed alternative language in the Proposed
Opinion.
USEPA corrected this at 56 Fed. Reg.
30192,
by adopting
language which is nearly identical to the Board’s alternative
language.
The Board has adopted the corrected language, with
minor corrections, which are discussed below.
The corrected
language of Section 721.135, as adopted by the Board,
is as
follows:
Generators shall either clean or replace all process
equ4pment that may have come into contact with
chlorophenolic formulations or constituents thereof,
including, but not limited to, treatment cylinders,
sumps,
tanks, piping systems, drip pads,
fork lifts and
trams,
in a manner which minimizes or eliminates the
escape of hazardous waste or constituents, leachate,
contaminated drippage or hazardous waste decomposition
products to the groundwater, surface water or
atmosphere.
1)
Generators shall do one of the following:
A)
Prepare and follow an equipment cleaning plan
and clean equipment in accordance with this
Section;
or
B)
Prepare and follow an equipment replacement
plan and replace equipment in accordance with
this Section; or
C)
Document cleaning and replacement in
accordance with this Section, carried out
after termination of use of chlorophenolic
preservatives.
2)
Cleaning requirements.
A)
Prepare and sign a written equipment cleaning
plan that describes:
1)
The equipment to be cleaned.
ii)
How the equipment will be cleaned.
iii) The solvent to be used in cleaning.
• iv)
How solvent rinses will be tested.
And,
v)
How cleaning residues will be disposed.
B)
Equipment must be cleaned as follows:
i)
Remove all visible residues from process
125—150
33
equipment.
ii)
Rinse process equipment with an
appropriate solvent until dioxins and
dibenzofurans are not detected in the
final solvent rinse.
C)
Analytical requirements
i)
Rinses must be tested in accordance with
SW—846, Method 8290,
incorporated by
reference in 35 Ill. Adm. Code 720.111.
ii)
“Not
detected”
means
at
or
below
the
lower
method
calibration
limit
(MCL)
in
Method
8290,
Table
1.
D)
The
generator
must
manage
all
residues from
the
cleaning
process
as
F032
waste.
3)
Replacement
requirements.
A)
Prepare and sign a written equipment
replacement plan that describes:
i)
The equipment to be replaced;
ii)
How the equipment will be replaced;
and
iii) How the equipment will be disposed of.
B)
The generator must manage the discarded
equipment as FO32 waste.
4)
Documentation requirements.
Document that
previous equipment cleaning and replacement was
performed in accordance with this Section and
occurred after cessation of use of chlorophenolic
preservatives.
USEPA Corrections
USEPA has corrected the general cleaning or replacement
standard.
As originally adopted, this required the generator to
clean or replace “...in a manner which minimizes or eliminates
the escape of hazardous waste or waste constituents, leachate,
...“
This could be read as requiring the generator to address
non-hazardous waste constituents.
USEPA has revised this so as
to eliminate the second “waste”.
As revised,
it is clear that
the generator is to address “hazardous waste or hazardous
constituents”.
125—15 1
34
The, original USEPA rule also required the generator to
control
escape “to the ground and surface water and to the
•
S
atmosphere”.
This was wordy,
and could be construed as requiring
control only of things which could escape to all three media.
USEPA has shortened and clarified this to require control of
escape “to the ground water, surface water, or atmosphere.”
The remainder of 40 CFR 261.35(b) had several pages worth of
editorial problems, which USEPA has removed by reorganizing and
rewording the subsection along the lines suggested in the
Proposed Opinion.
As reworded,
it is clear that the generator
has three basic choices:
clean its equipment;
replace its
equipment;
or, document prior cleaning and replacement carried
out after termination of the use of chlorophenolic preservatives.
Ambiguities in Corrected USEPA Language
The corrected USEPA language could be read as requiring each
generator to make a choice,
for the entire site, between
cleaning, replacement and documentation.
In other words,
this
reading would not allow the option of cleaning some equipment,
replacing some, and documenting prior cleaning and replacement
for other equipment.
On the other hand,
it
is possible to
interpret the language as applying to each piece of equipment,
so
that the generator can clean,
replace or document with respect to
each piece of equipment.
This is the most likely meaning, which
is supported by the “cleaning and replacement” language in the
documentation provisions,
which suggests that these might
properly occur together.
The corrected USEPA language,
in
40 CFR 261.35(b) (1) (iii)
721.135(b)
(1) (C),
allows the generator to document “cleaning
and replacement in accordance with this Section, carried out
after termination of use of chlorophenolic preservatives.”
This
is clearly intended to ratify cleaning and replacement which
occurred prior to the effective date of this rule.
At first
sight it also appears to authorize generators
in the future to
conduct cleaning and replacement programs outside the regulatory
program, and then document it as “previous cleaning or
replacement”.
However,
after the rules become effective,
it will
be impossible to claim that this was “in accordance with this
Section”.
Minor Editorial Corrections
172l.l35(b)1
40 CFR 261.35(b) (1) (iii) refers to chlorophenolic
“preservations”.
This probably is a typo, and should read
“preservatives”,
as in the rest of this Section.
The Board has
corrected this apparent typo.
40 CFR 261.35(b) (4) has a subsection
(i), but no
(ii).
One
125—152
35
possibility is that USEPA omitted
(ii)
through an editorial
error.
In any event, the Administrative Code rules prohibit
having an
(i) without a
(ii).
The Board has omitted the
(i), and
placed the text after the
(b) (4)
heading.
40 CFR 261.35(b) (4)
(i)
requires the generator todocument
that “previous equipment cleaning and/or replacement” was
properly carried out.
The Code Division prohibits the use of
“and/or”.
“A and/or B” means “A or
B, or both”, which,
as used
by the Code Division, is what “A or B” means.
However,
in this
case, th~USEPA rule seems to be saying “document cleaning or
replacement, or both”.
This seems to leave open the possibility
that the generator could meet the requirement by documenting,
for
example, that just the cleaning was properly carried out.
The
Board has therefore adopted this to require documentation that
“cleaning and replacement” were properly carried out, with the
understanding that,
if the generator did just one, he need only
document that he just did one,
and that it was proper.
Section 721.App.
C
This Section is derived from 40 CFR 261, App.
III, which was
amended at 55 Fed.
Reg.
50483.
The amendment adds test methods
for benzokfluoranthene,
in conjunction with the wood preserving
listings above.
This Section is subject to amendment in R90-ll.
The Board has used incorporation by reference,
rather than
setting forth the text of this Appendix.
This Appendix presently
references the 1989 Edition of the CFR, with
a series of Federal
Registers which amended that Edition.
The 1990 Edition is now
available,
and includes all Federal Registers through June 30,
1990.
The Board has therefore deleted these, and replaced them
with a reference to the 1990 Edition, as amended at 55 Fed. Reg.
50483.
The reference just adopted in R90-ll winds up being
removed in this rulemaking.
Section 72l.App.
G
This Section is derived from 40 CFR 261, App.
VII, which was
amended at 55 Fed.
Reg.
46396 and 50483, to add bases for listing
the refinery sludges and wood preserving wastes discussed above.
This involves addition of entries for F032,
F034, F035, •F037 and
F038.
This Section was amended in R90-11.
Section 721.App. H
This Section is derived from 40 CFR 261, App.
VIII, which
was amended at 55 Fed. Reg.
50483, to add to the list of
hazardous constituents Benzok
fluorantherie,
Heptachlorodibenzofurans and Heptachlorodibenzo—p—dioxins,
in
connection with the listing of wood preserving wastes.
125—153
36
Part 722:
Generators
Section 722.134
This Section is derived from 40 CFR 262.34, which was
amended at 55
Fed. Reg.
50483,
in connection with wood preserving
wastes.
This Section was subject to amendment in R90-11.
The amendment allows wood preserving waste generators,
without become owners or operators of HWM facilities, to keep
hazardou~waste on site on drip pads which are cleared at least
once every 90 days.
The drip.pads must comply with new 35 Ill.
Adm. Code 725.Subpart W, and some other provisions of Part 725.
In the Proposal, the Board noted two editorial problems with
the amendments to this Section.
USEPA has addressed these with
the corrections at 56
Fed.
Reg.
30192, July
1,
1991.
The first
is a simple correction of
“~
165.114” to
“~
265.114”.
The second
concerns the placement of the “in addition” clause.
The Board
had noted that this was a “hanging paragraph” which had to be
assigned a subsection label to meet Code Division requirements.
The Board had assigned a subsection label making the clause
subordinate to the wood preserving drip pad rules.
This clause
was repeated in pre—existing language concerning containers and
tanks.
In the corrections, USEPA has extensively reorganized
this Section to combine the language concerning containers,
tanks
and drip pads,
with just a single “in addition” clause.
Unfortunately,
it is still a hanging paragraph, which requires
attention to meet Code Division requirements.
As corrected,
40 CFR 262.34 reads as follows, with the “in
addition clause” in bold~7:
a)
Except as provided in paragraphs
(d),
(e) and
(f),
a generator may accumulate hazardous waste on—site for
90 days or less without a permit or without having
interim status, provided that:
1)
The waste is placed:
i)
in containers and the generator complies with
Subpart I of 40 CFR part 265;
and/or
ii)
In tanks and the generator complies with Subpart J
of 40 CFR part 265, except
§ 265.197(c)
and § 265.200;
and/or
17Thjs has been placed
insofar
as possible
into the USEPA
format for indentation.
Placing it into the Administrative Code
format would require knowledge of the proper level of subordination
of the “In addition” clause.
125—154
37
iii) On drip pads and the generator complies with
Subpart W of 40 CFR part 265 and maintains the
following records at the facility:
A)
A description of the procedures that will be
followed to ensure that all wastes are removed from the
drip pad and associated collection system at least once
every 90 days; and
B)
Documentation of each waste removal,
including the
quantity of waste removed from the drip pad and the
sump or collection system and the date and time of
removal.
In addition, such a generator is exempt from all
the requirements in Subparts G and H of 40 CPR 265,
except for
§ 265.11.
and
§ 265.114.
2)
The date upon which each period of accumulation
begins is clearly marked and visible for inspection on
each container;
3)
While being accumulated on—site, each container
and tank is labeled or marked clearly with the words,
“Hazardous Waste”; and
4)
The generator complies with the requirements for
owners or operators in Subparts C and D in 40 CFR part
265,
and with
§ 265.16 and with 268.7(a) (4).
As located in the USEPA language, the “in addition” clause
appears to be a continuation of the
(a) (1)
text.
In other words,
subsection
(a) (1) would have the following structure:
introductory
text
subordinate
list
hanging
text.
It’s
usually possible to rewrite such a rule to place the list at the
end,
so as to eliminate the hanging text,
as follows:
hanging
text
introductory
text
list.
However, this rule makes no
sense with the hanging paragraph placed with the introductory
text for
(a) (1).
Rather, the hanging paragraph makes sense if
placed into the introduction to subsection
(a), so that the
introduction reads as follows, with the “in addition clause” in
bold:
a)
Except as provided in paragraphs
(d),
(e)
and
(f),
a generator
is exempt from all the requirements in
Subparts G and H of
40 CPR 265, except for
§ 265.111
and
§ 265.114
and
may accumulate hazardous waste on-
site for 90 days or less without a permit or without
having interim status, provided that:
The problem with this reading is that it makes
(a) (2)
-
(4)
125—155
38
conditions for the Part 265 exemption.
If the curious placement
of the “in addition” clause meant anything,
it would mean that
only
(a) (1) was a condition for the Part 265 exemption.
In other
words, there would be three possible classes, who would be
subject to the following regulations:
Conditions Met
Exempt From
Sublect to
None
None
Interim Status
filing requirements
and Part 265
(a) (1)
Interim status
Rest of Part 265
filing requirements,
and Part 265,
Subparts G and H,
except 265.111 and
265.114
(a) (1)
-
(4)
Interim status
All of Part 265
S
filing requirements
Under this reading of the USEPA rule,
a generator who met
conditions
(1)
—
(4) would have to comply with more regulations
than the generator who just complied with
(1), including the
financial assurance requirements.
In other words,
a generator
who clearly marked his drums with the date the period of
accumulation began would be rewarded by having to provide
financial assurance, which would not be required if he just
didn’t mark the drums.
This interpretation makes no sense
whatsoever.
The Board has therefore concluded that the “in
addition” clause is a part of the introductory language to 40 CFR
262.34(a), and that the operator must meet all four conditions to
obtain the exemption in that clause.
The Board has therefore
adopted the following language:
a)
Except as provided in subsections
(d),
(e)
or (f),
a generator is exempt from all the requirements in
35
Ill.
Adm. Code 725.Subparts G and H, except for
35
Ill. Adm. Code 725.211 and 725.214 and may
accumulate hazardous waste on-site for 90 days or
less without a permit or without having interim
status~provided that:
1)
The
waste
is
placed~
~j
.I4~ncontainers and the generator
complies with 35 Ill. Adm. Code
725.Subpart I~ or
~1
Ithe waste
i3 placed in tanks and the
125—156
39
generator complies with 35 Ill. Adm.
Code 725.Subpart J except 35 Ill. Adm.
Code 725.297(c)
and 725.300--;
or
Qj
On drip pads and the generator’ complies
with 35 Ill. Adm. Code 725.Subpart W and
maintains the following records at the
facility:
il
A description of the procedures
that will be followed to ensure
that, all wastes are removed from
the drip pad and associated
collection system at least once
every 90 days; and
JJJ..
Documentation of each waste
removal,
including the auantity of
waste removed from the drip ~ad and
the sump or collection system and
the date and time of removal.
~
addition, auch a generator 13
exempt from all the requirements in
35 Ill.
Adm. Code 725.Cubpcirts C
725.211and725.214;
Ill.
Adm. Code
BOARD NOTE:
The “in addition”
hanging paragraph is in the
introduction to subsection
(a).
2)
The date upon which each period of
accumulation begins is clearly marked and
visible for inspection on each container;
3)
While being accumulated on-site,
each
container and tank is labeled or marked
clearly with the words,
“Hazardous Waste”,
and
4)
The generator complies with the requirements
for owners or operators in 35 Ill. Adm. Code
725.Subparts C and D, with 35 Ill.
Adm. Code
725.116 and 728.107(a) (4).
Part 724:
Permitted HWM Facilities
Section 724.290
This Section is derived from 40 CFR 264.190, which was
amended at 55 Fed.
Reg.
50484,
in connection with wood preserving
wastes.
The amendment adds subsection
(c), which requires that
125—157
40
tanks and sumps associated with drip pads meet the requirements
for “tank systems”.
There is a minor editorial problem with this amendment.
In
the introductory language, the
SUSEPA
rule reads:
“except as
otherwise provided in paragraphs
(a),
(b), ~
(C)...”
These
paragraphs
are
unrelated
alternatives,
so
that
“and”
should
be
.
SUBPART W:
DRIP PADS
This is a new Subpart regulating “drip pads” on which wood
is placed after being treated with preservatives.
This Subpart
is derived from 40 CFR 264.570 et seq., which was adopted at 55
Fed. Reg.
50484, June 6,
1990.
This Subpart is closely related
to the definition of “drip pad” in Part 720, and to the new
listings for F032, F034 and F035 in Part 721.
This Subpart
applies to facilities with RCRA permits;
Part 725 applies to
interim status facilities.
As is discussed above, USEPA corrected these rules at 56
Fed.
Reg.
30192, July 1,
1991.
The Board has adopted the
corrections in this update Docket.
The corrections involve
renumbering most of the Sections in this Subpart,
a result of
moving 40 CFR 264.575 up to 264.572,
and renumbering old 264.572
-
264.574.
The Board has followed this renumbering in the Order.
This Opinion will use only the new numbers.
Section 724.672(a) (4)
is also subject to the administrative
stay discussed above
in the June 13,
1991 Federal Register.
Section 724.670
This is the applicability Section for the Subpart.
Section
724.670(a)
includes the definitions of “existing” and “new” drip
pads.
The Board has broken these out into subsections so they
are easier to find and read.
Since these are defined at the
beginning of the Subpart,
there is no need to back—reference the
definitions at each point in the rules
(as USEPA does).
The December 6 rules applied to operators of pads that use
“drip pads to convey treated wood drippage to an associated
collection system”.
On July 1, USEPA corrected this to “drip
pads to convey treated wood drippage, precipitation and/or
surface water run—on to an associated collection system”.
As is discussed above,
as used by the Code Division,
“or”
means the same thing as “and/or”.
The Board has substituted
“or”, with this understanding.,
Subsection
(b)
cross references an exclusion for drip pads
in structures.
The USEPA rule provides that such pads are not
125—158
41
subject to Section 264.573(e)
or
(f),
“as
appropriate”.
The
Board has struck this as unnecessary.
Since it’s an exclusion,
it
doesn’t
matter
whether
they
excluded under
(e) or
(f).
Section 724.671
This Section requires operators to assess existing drip pads
for integrity,
and upgrade them to meet new requirements.
The
USEPA
rule
sets
out
a schedule keyed to the effective date of the
rule, June
6,
1991.
The Board has replaced these with actual
dates.
-
Effective Dates
The Board has used dates keyed to the federal effective
date,
rather than dates keyed to some future State effective
date.
Because these are partially HSWA-driven requirements, part
of the USEPA rules become effective in Illinois immediately.
(55
Fed. Reg.
5.0471)
Operators have to meet these dates under
federal rules anyway,
so there is no problem with enacting what
may turn out to be a retroactive State effective date.
Moreover,
the delayed dates for the assessments are several years
in the
future,
so operators can plan to meet them.
As is discussed above, USEPA has stayed the effective date
of these rules.
It is possible that USEPA intended that these
delayed compliance dates,
some of which are several years
in the
future,
should be advanced so as to be keyed to the new dates.
However, the Board does not so construe the USEPA stay, which
does not specifically address this question.
It is not necessary
to advance these future dates, which are not directly related to
the stay,
and,
some of which will not arrive until after the new
effective dates have passed.
Also,
it is not clear which of
these new dates should be construed as the “effective date” for
this purpose.
Extension Procedure
40 CFR 264.571(b) (3)
includes a procedure for postponing the
liner and leak detection requirements:
If the owner or operator believes that the drip pad
will continue to meet all of the requirements of
Section 264.573 of this subpart after the date upon
which all upgrades, repairs and modifications must be
completed as established under paragraphs
(b)
(1) and
(2)
of this section, the owner or operator may petition
the Regional Administrator for an extension of the
deadline as specified in paragraph
(b) (1)
or
(2)
of
this section. The Regional Administrator will grant the
petition for extension based on a finding that the drip
pad meets all of the requirements of Section 264.573,
125—159
42
except those for liners and leak detection systems
specified
in
Section
264.573(b), and that it will
continue
to
be
protective
of
human
health and the
environment.
40
CFR 264.571(b) (3)
Subjective Precondition to Filing
There are several problems with this language.
The first is
the introductory clause:
“If the owner or operator believes” the
pad
will
“continue
to
meet”
all
requirements
after the required
date,
the
owner or operator “may petition” for an extension.
In
the
first
place,
this
is
worded
as
a precondition to filing the
petition.
Does this mean the operator is subject to enforcement
if he files the petition when he is not entitled to?
Moreover,
it
is a subjective standard:
the question is whether the
operator
“believes”
he
meets
the
requirements,
rather
than
whether he in fact meets them.
What does the operator’s belief
have to do with protection of the environment?
The Preamble
discusses this extension at 55 Fed. Reg.
50454, but comes nowhere
close to explaining this provision.
Usually subjective standards can be reworded as objective
standards,
and preconditions to filing can be reworded as
findings the agency must make to grant the petition.
However,
in
this case there appears to be no content in the introductory
clause which is not already contained in the findings the agency
must make.
The main precondition to filing is “that the drip pad
will continue to meet all of the requirements.”
This appears to
be reflected in the findings the agency must make:
“that the
drip pad meets all of the requirements of Section 264.573,
except
those for liners and leak detection systems.”
There is a possible
(though absurd) way to give meaning to
the introductory precondition.
As worded, although the operator
must believe that the pad meets “all requirements”, to grant the
extension, the agency must find that it meets all requirements
except the liner and leachate collection requirements.
This
could be read as granting extensions only to operators who truly,
but mistakenly, believe they meet the liner and leachate
collection requirements.
Why limit the extension to true
believers who are mistaken?
Again, this has nothing to do with
the
explanation
of
the
extension
at
55
Fed.
Reg.
50454.
The introductory clause to 40 CFR 264.571(b) (3) may also be
establishing a time limitation on the filing of the petition:
“after the date upon which all upgrades, repairs and
modifications must be completed”.
However,
it wouldn’t make any
sense to limit petitions to those filed after the compliance
date.
More likely this just modifies “meet”,
in which case it is
mere surplusage.
Other Editorial Problems with Subsection
(b)
(3)
125—160
43
As is set out below, the Board has omitted the entire
introductory clause to 40 CFR 264.57l(b)(3).
As this Section is
explained in the Preamble at 55 Fed.
Reg.
50454,
it
is intended
to grant an extension to pads which meet all requirements except
the liner and leachate collection requirements.
It
is not clear
whether the USEPA language does that;
but,
it comes closer with
the introductory clause removed.
40 çFR 264.571(b) (3) allows the operator to petition “for an
extension of the deadline as specified in paragraph
(b) (1) or
(2)”.
As worded, this suggests that the procedures for
petitioning, rather than the deadline, are in
(b) (1) or
(2).
The
Board has fixed this by deleting “as specified”.
“Reasonable” Extensions
The USEPA language contains no limitation on the duration of
the extension.
The Preamble speaks of a “reasonable extension of
the deadline for compliance”.
(55 Fed. Reg.
50454)
As is
discussed below, the Board has used the variance mechanism, which
allows extensions for up to five years.
Agency or Board Decision on Extensions?
This brings us to the question of whether it is the Agency
or Board which may make this determination.
Section 7.2(a) (5)
requires the Board to specify which agency makes decisions in the
RCRA
programs.
A
general
discussion
of
the
factors
the
Board
considers in making these decisions appears in the introduction
to this Opinion.
Some factors indicate that this is a permit-type decision
which the Agency could make.
The “petitioner”
is an operator who
is subject to the RCRA permit requirement, such that this
decision could be framed in terms of a
RCRA
permit application,
or interim status—related application.
However,
other factors
persuade the Board that this extension can be granted by the
Board alone.
Typical
permit
decisions
involve
the
Agency
deciding
whether
an operator has to follow rule X or rule Y.
This decision really
is a temporary “waiver” of a requirement specified in a Board
rule, as opposed to a choice between alternatives.
Moreover, the
standard for action is “be protective of human health and the
environment”.
Application of such a broad standard is equivalent
to “determining, defining or implementing environmental control
standards”,
a
power
reserved
to
the
Board under Section 5(b)
of
the
Act.
Procedure for Extensions
125—161
44
The Board could grant this extension by three procedures:
variance, adjusted standard or site specific rulemaking.
This
decision resembles a variance under Title IX of the Act insofar
as it is a temporary extension of a compliance date.
It differs
in
that
the
USEPA
rule
fails
to
mention
any
hardship
factors,
and
variances
require
a
definite
compliance
plan.
Also,
while
the
preamble
speaks
of
“reasonable”
extensions,
Board
variances
are
limited to
5 years, with one year extensions.
The
other
viable
alternative
is
an
“adjusted
standard”.
This proóedure could be adapted to this purpose.
However,
adjusted standards would be more appropriate for approval of a
permanent design based on an alternative standard.
The USEPA
procedure focuses on temporary extensions for existing
facilities.
A possible objection to the variance is the required showing
of arbitrary or unreasonable hardship.
However, as is detailed
in the Preamble at 55 Fed. Reg.
50454,
there is apt to be an
element of hardship involved in replacing a good drip pad just to
install a liner and leachate collection.
Another possible problem is whether a
5 year maximum, with
possible extensions, would be “reasonable”.
The Preamble
indicates that pads have a normal 15 year life.
Part of this
will already be gone with the compliance dates in the rule, which
extend through 1999.
A five year variance beyond this would be
one-third of the normal life of the pad.
The Board solicited
comment as to whether five years was “reasonable”, but received
no response.
Text for Section 724.671(b) (3)
The entire text of Section 724.671(b) (3)
is as follows:
The owner or operator may petition the Board for an
extension of the deadline in subsection
(b) (1) or
(2).
A)
The owner or operator shall
file a petition for a
RCRA
variance
as
specified
in
35
Ill.
Adm.
Code
104.
B)
The Board will grant the petition for extension if
it finds that:
1)
The drip pad meets all of the requirements of
Section
724.673,
except
those
for
liners
and
leak
detection
systems
specified
in
Section
724.673(b);
and
ii)
That it will continue to be protective of
human health and the environment.
125—162
45
As—Built
Plans
Section
724.671(c)
requires
the
operator
to
file
“as-built”
plans with the Agency following upgrading.
The Board proposed to
insert
and
delete
several
missing
and/or
extra
commas.
In
the
July
1,
1991,
correction,
USEPA
corrected some, but not all of
these.
USEPA also corrected “Upon completion of all,
repairs, and
modifica~ions”to read:
“Upon completion of all upgrades,
repairs,
and
modifications”.
The
Board
has
followed
this
correction.
Section 724.672
According to the heading, this Section specifies which
Sections govern “new” drip pads.
However, the word “new” has
been
omitted
from
the
text
of
the Section.
The Board has
inserted
the
needed
word.
This Section was proposed as Section 724.675.
It has been
moved to Section 724.672 to conform with USEPA’s renumbering in
the July 1, 1991, corrections.
All subsequent Section numbers
are increased by 0.001.
Section 724.673
This Section specifies the design and operating requirements
for drip pads at RCRA permitted facilities.
40 CFR 264.573 (a) (1) provides that drip pads must:
Be
constructed
of
non—earthen
materials,
excluding
wood
and non-structurally supported asphalt;
40
CFR
264.573(a) (1)
This is ambiguous as written.
It probably means that wood cannot
be
used,
and
that
asphalt
cannot
be used unless it is
structurally supported.
However,
it could be read the other way.
The
Board
has
adopted
the
following:
Not
be
constructed
of
earthen
materials, wood or
asphalt,
unless
the
asphalt
is structurally supported;
35
Ill.
Adm. Code 724.673(a) (1)
USEPA did not correct this problem in the July
1,
1991,
correction.
However, the subsection picked up several minor
typos when it was reprinted in the correction.
The Board has
retained
the
correct
language.
40 CFR 264.573(a) (2) provides that drip pads must:
125—163
46
Be
sloped
to
free—drain
treated wood drippage,
rain and
other waters, or solutions of drippage and water or
other wastes to the associated collection system;
40
CFR
264.573(a)
(2)
There seem to be two problems with this provision.
First,
“to
the
associated
collection
system”
needs
to
be
moved
so
it
appears
right
after
“drain”.
Then
the
list
is
at
the
end
of
the
provisioxt.
There
is
a
lot
of
ambiguity
as
to
how
the
elements
in
the
list
are
supposed
to
be
grouped.
The
most
likely
grouping
is:
“A,
B
and
C
or
solutions
of
D
and
(E
or
F)”
However,
an
alternative reading
(among many)
is:
“A,
B
and C,
or solutions
of
D
and
E,
or
F”.
The
Board
has
chosen
the
former
grouping
since it seems to make sense that the only wastes of concern are
those in solution.
The Board has therefore rearranged this to
properly reflect this grouping, as follows:
Be
sloped
to
free—drain
to
the
associated
collection
system
treated
wood
drippage,
rain,
other
waters,
or
solutions
of
drippage
and
water
or
other
wastes;
35
Ill. Adm. Code 724.673(a) (2)
Section 724.673 (a) (4) requires that drip pads be
“impermeable”.
This provision is subject to the administrative
stay in the June 13,
1991,
Federal
Register,
discussed
above.
The
Board
has
added
the
following note, which tracks the USEPA
language:
BOARD NOTE:
The requirement that new drip pads be
impermeable,
e.g.,
that
new
drip
pads
be
sealed,
coated
or covered with an impermeable material,
is
administratively stayed.
The stay will remain in
effect until further administrative action is taken.
40
CFR
264.573
was
the
subject
of
a
USEPA
correction
on
July
1,
1991.
“Must
be
of sufficient structural strength and
thickness to prevent failure due to physical contact, climatic
conditions,
the
stress
of
installation,
and
the
stress
of
daily
operations...”
was
changed
to
read:
“Must
be
of sufficient
structural
strength
and
thickness
to
prevent
failure
due
to
physical contact, climatic conditions,
the stress of daily
perations...”,
deleting
“stress
of
installation”.
In
addition,
two
typos
have
appeared
in
the
corrected
text:
“perations”,
and
the
deletion
of
a
final
“and”
in
the
series.
The
obvious
typos
call into question whether USEPA really meant to delete “stress
of
installation”.
Since
this
is
not
mentioned
as
a
correction
ir
the Preamble, the Board believes all of these apparent changes
are typos, and has not made them.
125—164
47
Following 40 CFR 264.573(a) (5)
is a “note” stating that
USEPA will:
G)enerally
consider
applicable
standards
established
by professional organizations generally recognized by
the industry such as the American Concrete Institute
(ACI)
or
the
American
Society
of
Testing
Materials
(ASTM)
in
judging
the
structural
integrity
requirement
of
this
subsection.
40
CFR
264.573(a)
(5)
Thi~ appears
to
be
an
incorporation
by
reference
which
does
not comply with Section 6.02(a)
of
the
APA,
in
that it does not
identify
the
standards
by
location
and
date.
In addition, the
reference
appears
to
include
future
editions,
which
is
prohibited
by the APA.
The Board solicited comment as to whether it should
delete this note,
or,
in the alternative,
complete the
references.
In
the
latter case, the Board stated that it needed
to
know
which
standards
are
to
be
referenced.
The
Board
received
no response, and has therefore considered deleting the note.
However,
the
Board
has
identified
ASTM
C-94
and
ACI-3l8
as
examples
of
appropriate
standards.
The
Board
has
therefore
referenced
these
as
examples.
In
this
way
a
person
who
wanted
to
design
a
pad
could
find
a specific standard, yet would not be
‘limited only to that design.
The Note is as follows:
BOARD
NOTE:
In
judging
the
structural integrity
requirement
of this subsection, the Agency should
generally
consider
applicable
standards established by
professional organizations generally recognized by the
industry,
including
ACI
318
or
ASTN
C94,
incorporated
by reference in 35 Ill. Adm. Code 720.111.
In the proposed Opinion,
the Board pointed out that, while
40
CFR
264.573(b)
applied
only
to
new
drip
pads,
the
comparable
subsection
in
40
CFR
265
applied
both
to
new
and
existing
pads.
On July 1,
1991, USEPA corrected the introductory material to
read as follows:
A
new
drip
pad
or
an
existing
drip
pad,
after
the
deadline established in Section
264.571(b)...,
must
have:
In the Proposed Opinion, the Board pointed out that,
in 40
CFR 264.573(e)
724.673(e)
there were two “unless” clauses which
said the same thing.
The Board proposed to delete the first.
USEPA has now corrected this, but by deleting the second clause.
The
Board
has
revised
the
proposal
to
more
closely follow the
USEPA text.
The
corrected
USEPA
text
starts
out
with:
“Unless
protected
by
a
structure
...,
the
owner
or
operator
shall...”
What
this
probably
means
is:
“Unless
the
drip
pad
is
protected
by
a
125—165
48
structure...”, the format the Board has followed.
The Board has
also corrected the same problem in Section 264.573(f)
724.673(f).
USEPA has also made a second correction to 40 CFR
264.573(e).
Originally
the
Section
addressed
“run-on”.
As
corrected,
it addresses “run—off”.
This may represent another
typo,
since the text would disagree with the Part 725 text,
and
since “run—off” appears to be unrelated to the remainder of the
subsection,
which
reads
as
follows:
Unless protected by a structure,... the owner or
operator must design,
construct, operate and maintain a
run—on control system capable of preventing flow onto
the drip pad during peak discharge from at least a 24-
hour,
25—year storm, unless the system has sufficient
excess
capacity
to
contain
any
run-off
that
might
enter
the
system.
The Board has retained “run—on”.
In Section 724.673(g),
the Board has separated the two
sentences with a period, and inserted a needed comma in the
second.
40 CFR 264.573(i)
and
(k) each have misplaced modifiers
which escaped notice in the proposal.
The Board has corrected
these as follows:
i)
..The owner or operator shall document,
in the
•
facility’s operating log, the date and time of
each cleaning and the cleaning procedure used—ui
the
facility’s
operating
log.
k)
After being removed from the treatment vessel,
treated wood from pressure and non—pressure
processes must be held on the drip pad until
drippage has ceased.
The owner or operator shall
maintain records sufficient to document that all
treated wood is held on the pad,
in accordance
with this Section, following treatment—4n
accordance with this requirement.
The misplaced modifier in
(1)
is amusing, but unlikely to
actually
mislead
anyone.
On
the
other
hand,
(k)
says
something
which makes sense, and
is totally different than what was
probably intended.
As worded,
it appears to require
documentation of “treatment”
in accordance with “this
requirement”.
As used in the wood preserving rules,
“treatment”
is referring to the addition of preservative to the wood,
a
process which occurs in the “treatment vessel”, before the wood
is moved to the pad.
The subsection needs to require
125—166
49
documentation of the drippage
on
the
pad,
not
the
“treatment”
process itself.
40 CFR 264.573(m)
(equivalent to Section 724.673(m))
requires
repairs
within
a
“reasonably
prompt
period”
after
discovery
of
a
condition which could cause a release.
•
The
Board
solicited comment as to what “reasonably prompt” means, but
received
no
response.
40 CFR 264.573(m) (1) (B) has
a
minor
misplaced
modifier
which
escaped detection in the proposal.
The Board has corrected this
so
it
reads:
“Immediately
remove
from
service
the
portion
of
the
drip pad affected by the condition from 3ervice.”
The language in Section 724.673(m) (1) (C) has been modified
as is discussed below in connection with Section
725.543(m)(l)(C).
This
is
a compromise text combining the better
aspects
of
the
Part
264
and
265
language.
In Section 724.673(m) (2), the Board has broken the list of
Agency
actions
into
elements
separated
by
semicolons.
USEPA has corrected a cross reference in 40 CFR
264.573(m) (3), which was noted in the Proposed Opinion.
The
correct reference is “(m)(l)(iv)”
or
(m)(l)(D),
as in the
Proposal.
Section 724.674
This Section requires the operator to conduct “inspections”
of drip pads during construction, as well as weekly and after
storms.
USEPA
has
corrected
this
Section
by
changing
cross
references.
Section 724.675
This Section specifies the closure requirements for drip
pads.
USEPA has corrected this Section by changing cross
references.
40 CFR 264.575(b) has an apparent editorial error which
escaped notice in the Proposal.
The subsection reads as follows:
If, after removing or decontaminating all residues
...,
the owner or operator finds that not all contaminated
subsoils can be practically removed or decontaminated,
the operator shall close the facility and perform post-
closure
care
in
accordance
with
closure
and
post
closure care requirements that apply to landfills
(Section 724.410).
For permitted units, the
requirement to have a permit continues throughout the
post— closure period.
125—167
50
As worded, the first sentence appears to require closure of the
entire facility.
However, the second sentence speaks just of
units.
The’ Board believes this’ is an editorial error,
and has
changed the first to “unit”.
40 CFR 264.575(c) has no text.
This is prohibited by the
Code Division.
The Board has filled the hole by inserting a
heading.
Part
725:
Interim
Status
Standards
for
HWM
Facilities
This Part contains the standards for unpermitted facilities
which treat,
store or dispose of hazardous waste.
Section 725.290
This
Section
is
derived from 40’CFR 265.190, which was
amended
at
55
Fed.
Reg.
50486,
December
6,
1990.
The
amendment
is similar
t.o Section 724.290 above.
It adds a subsection
(c),
which requires that sumps for drip pads for wood preserving
wastes meet the interim status requirements for tank systems.
There are several minor differences in wording between this
Section and 724.290.
The Board has followed the USEPA language,
although there seems to be no reason for the differences.
SUBPART W:
INTERIM STATUS DRIP PADS
This Subpart establishes standards for drip pads at interim
status
facilities:
those
for which no RCRA permit has been
issued.
The Subpart is almost identical to Part 724, Subpart W.
It is also drawn from 55 Fed. Reg. 50485,
December 6,
1990.18
This Subpart was also subject to the administrative stay at 56
Fed. Reg.
27332, June 13,
1991 and the corrections at 56 Fed.
Reg.
30192, July 1,
1991.
However, the corrections to this Part
are not as extensive as Part 724.
Section 725.540
This
is
the
applicability
Section,
which
includes
the
definitions of “new” and “existing” pads.
Note that the
regulations appear to contemplate “new” pads which would be
subject
to
the
interim
status
rules.
The
Board
solicited
comment
as
to
how
this
relates
to
40
CFR
270.73
and
703.155,
which
limit
changes
at
interim
status
facilities,
but
received
no
response.
18The
following
discussion
will
focus
on
the
differences
between the Part 724 and 725 rules.
Except as noted,
the Board
has made the same editorial changes to this
Part,
and the same
discussion applies.
125—168
51
40 CFR 265.440(a) was corrected in the July
1,
1991
Federal
Register.
As is discussed above in connection with Section
724.670, the applicability statement has been expanded to include
drip pads used to convey “preàipitation or surface water run—
on”,
as well as wood drippage.
Section 725.541
This Section requires the operator to assess the integrity
of existing pads, and to upgrade them on a schedule.
40 CFR 264.571(a) provides that “the evaluation must
document...”
40 CFR 265.441(a)
provides that “the evaluation
must justify and document...”
The Board has followed the
respective USEPA language.
The Board solicited comment as to
whether one Part was in error, but received no comment
Section 725.542
This Section specifies design and operating requirements for
new interim status drip pads.
Section 725.543
This Section specifies the design and operating requirements
for drip pads.
It corresponds with Section 724.672.
There is a minor difference in wording between 40 CFR
264.573 and 265.443(a)(4).
While the former addresses
“materials,
or other wastes while
..“,
the
latter
addresses
“materials and other wastes, while”.
The “or” in Part 264
appears to be correct,
as does the comma in Part 265.
Section 725.543(a) (4) requires that drip pads be
“impermeable”.
This provision
is subject to the administrative
stay
in
the
June
13,
1991,
Federal
Register,
discussed
above.
The Board has added the following note, which tracks the USEPA
language:
BOARD NOTE:
The requirement that new drip pads be
impermeable, e.g.,
that new drip pads be sealed, coated
or covered with an impermeable material,
is
administratively stayed.
The stay will remain in
effect until further administrative action is taken.
There
is
also
a
minor
difference
between
the
notes
following
40 CFR 264.573 and 265.443(a)(5).
While Part 264 reads:
“...
recognized by the industry such as
...
(ACI)
or
...
(ASTM)...”,
the
latter
reads:
“...
recognized
by
industry such as
...
(ACI)
and
...
(ASTM)...”
The Part 264 wording is preferable,
since it
makes it clear that the rule is talking about “the” wood
125—169
52
preserving industry, and that the ACI and
ASTM
standards
are
alternatives.
The
Board
has
used
the
same
language
as
in
Section
264.573(a)
(5)
In
the
Proposed
Opinion,
the
Board
noted
the
apparent
omission of a subsection of 40 CFR 265.443(b)(2).
On July 1,
1991,
USEPA
corrected
this
by
inserting
a
new
subsection
(b) (2) (ii).
This requires that the leak detection system be
designed to function without clogging through the scheduled
closure
of
the
pad.
40 CFR 265.443(e)
725.543(e)
contains language which is
identical to language corrected by USEPA in 264.573(e), but which
has not been corrected.
The Board has corrected this language
along the lines discussed above in Section 724.673(e).
Sections
725.543(f),
(i) and (m)(l)(B) have other errors which have been
corrected in a manner similar to Section 264.573.
USEPA has corrected the repair standard of 40 CFR 265.443(m)
and
(in)
(1)
along the lines discussed above in connection with
Section 264.573(m).
This provision is triggered when the
operator discovers a condition which “may have caused or has
caused”
a
release
of hazardous waste.
40 CFR 264.573(m) (1) (iii)
and 265.443(m) (1) (iii)
read quite
differently.
The Part 265 language reads as follows:
Determine what steps must be taken to repair the drip
pad,
remove
any
leakage
from
below
the
drip
pad,
and
establish
a
schedule
for
accomplishing
the
clean
up
and
repairs;
40
CFR 265.443(m) (1) (iii)
The Part 264 language reads as follows:
Determine what steps must be taken to repair the drip
pad
and
clean
up
any
leakage
from
below
the
drip
pad,
and establish a schedule for accomplishing the repairs;
40
CFR 264.573(m)(1)(iii)
emphasis
added
The Part 265 language is weak in that it starts out talking
about “removal”, but then shifts to “clean up”.
“Clean up” may
be preferable,
since “removal” invites confusion with the closure
by removal requirements.
The Part 264 language is weak in that
it fails to require a schedule for the clean up.
The Board has
used compromise language in both Parts:
Determine what steps must be taken to repair the drip
pad,
clean
up
any
leakage
from
below
the
drip
pad,
and
establish a schedule for accomplishing the clean up and
repairs;
35
Ill. Adm. COde 724.673 and
725.543(m) (1) (C)
125—170
53
40
CFR
264.573(n)
deals
only
with
permits,
and
hence
is
absent from Part 265.
Therefore,
40 CFR 264.573(o)
corresponds
with
40
CFR
265.443(n).
Section
725.544
This Section is drawn from 40 CFR 265.444, and corresponds
with Section 724.673 and 40 CFR 264.573.
It deals with
“inspections”
which
are
carried
out
by
the
operator.
40
CFR
265.444(b)
(2)
refers
to
“leakage
detection”.
The
Board has corrected this to read “leak detection”, the term use
in
Part
264,
and
everywhere else.
In 40 CFR 265.444(b), there is a “post/closure” which the
Board
has
corrected
to
“post—closure”.
Section 725.545
This Section deals with closure of drip pads.
The
final
sentence
of
40
CFR
264.575(b)
has
no
equivalent
in
Part 265.
This requires Part 264 pads which cannot close by
removal to meet the post—closure care and financial assurance
requirements for landfills.
The
BOard
has
omitted
it,
following
the federal text.
The Board solicited comment as to whether this
might be a USEPA error,
since the concept would appear to apply
also to interim status landfills, but received no response.
The
Board also noted that the prior sentence, which deals
specifically with permitted facilities,
is present in both Parts.
It is possible that this is not appropriate in Part 265.
The
Board solicited comment on this also, but received no response.
Section 725.545(b)
has been corrected along the lines
discussed
above
in
connection
with
Section
724.675(b),
changing
“facility” to “unit”.
This Opinion supports the Board’s Order of this same date.
The Board will not file the rules until after September 9,
1991,
to allow time for post—adoption review and comments by the
agencies involved in the authorization process.
IT IS SO ORDERED.
125—171
54
Mr.
Forcade
concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
do
hereby
certify
th~
the
above
Opinion
was
adopted
on
the
r~-’
day of
____________,
1991,
by
a
vote
of
7—0w
Illinois
Control
Board
125—172
