ILLINOIS POLLUTION CONTROL BOARD
March 28,
1991
IN THE MATTER
OF:
)
)
R91—1
RCRA UPDATE, USEPA REGULATIONS)
)
Identical
in Substance Rules)
(7—1-90 THROUGH 12-31—90)
)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION OF THE BOARD
(by J. Anderson):
By a separate Order,
pursuant to Section 7.2 and 22.4(a)
of the
Environmental Protection Act
(Act),
the Board
is proposing to
amend the RCRA
hazardous waste regulations.
The amendments involve 35 Ill.
Adm. Code 703,
720, 721, 722,
724 and 725.
The Board will receive public comment for 45 days
after the date of publication of the proposed rules
in the Illinois
Register.
At various points
in this Opinion, the Board alerts
the reviewer to
concerns we have identified early-on
by including
a
“solicits coment”
in
boldface type.
We strongly caution, however, that the reviewer
should not
rely on our identifying,
at this stage all
the areas that may need special
attention.
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
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 R9O-1O.
These result
in no changes
to the rules.
The first two appeared prior to and
were addressed
in the Opinion
in R90-1O.
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
120—333
—2—
not adopt site-specific delistings
as determined by the USEPA unless and until
someone files
a proposal showing that the waste will
be generated or managed
in Illinois.
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.
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
Wastestream Authorizations
720
General
721
Identification and Listing
722
Generator Standards
723
Transporter Standards
724
Final
TSD Standards
725
Interim Status TSD Standards
726
Specific Wastes and Management Facilities
728
USEPA Land Disposal Restrictions
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
731
Underground Storage Tanks
738
Injection Restrictions
Special procedures for RCRA cases are included in Parts
102,
103,
104 and
106.
Adoption of these regulations has proceeded
in several
stages.
The Phase
I RCRA regulations were adopted and amended as
follows:
R81—22
45 PCB
317, February 4,
1982,
6
111.
Reg. 4828, April
23,
1982.
R82-18
51 PCB 31, January 13,
1983,
7
Ill. Reg. 2518, March
4,
1983.
Illinois received Phase
I interim authorization on May 17,
1982
(47 Fed.
Reg. 21043).
The UIC regulations were adopted as follows:
R81—32
47 PCB 93, May 13,
1982;
October
15,
1982,
6
Ill.
Reg. 12479.
120—334
—3—
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).
R89-11
May 24,
1990;
14
Ill.
Reg.
11948, July 20, 1990,
effective July
9,
1990.
(1/1/89 through 11/30/89)
R90—5
Dismissed March 22,
1990 (12/1/89 through 12/31/89)
R90-14
Proposed November 8,
1990;
November 26,
1990;
14
Ill. Reg. 18681
(1/1/90 through 6/30/90)
R91—4
Dismissed February 28,
1991 (7/1 through 12/31/90)
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:
R82-19
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:
120—
335
—4-
RB4-9
64 PCB 427, June 13, 1985;
9 Ill. Req. 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—1
71 PCB
110, July 11,
1986;
10
Ill. Reg. 13998, August 22,
1986.
(7/1/85
——
1/31/86)
R86—19
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.
Req. 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.
Req.
2450,
January 29,
1988.
(1/1/87
-—
6/30/87)
R87—32
Correction
to
R86-1; September 4,
1987;
11
Ill. Req. 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)
R89-1
September
13, October
18 and November
16,
1989;
13
Ill.
Req.
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)
R9O-1O
August
30 and September 13,
1990;
14
Ill.
Req.
16450,
effective
September 25,
1990 (TCLP Test)
(1/1/90 through 3/31/90)
R90—11
Proposed December 20,
1990 (Third Third)
(4/1/90 through
6/30/90)
R90-17
Delisting Procedures
(See below)
R91—1
This Docket
(7/1 through 12/31/90)
120—
336
—~—
Illinois received final
authorization for the RCRA program effective
January 31,
1986.
The Underground Storage Tank rules were adopted
in R86—1 and R86-28,
which were RCRA update Dockets discussed above.
They are currently being
handled
in their own Dockets:
R88—27
April
27,
1989;
13
Ill.
Reg. 9519,
effective June
12,
1989
(Technical standards,
September 23,
1989)
R89—4
July 27,
1989;
13
Ill.
Reg.
15010, effective September 12,
1989
(Financial
assurance,
October 26,
1989)
R89—1O
February 22,
1990;
14
Ill. Req.
5797, effective April
10,
1990
(Initial
update, through 6/30/89)
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)
R9O—12
Adopted February 28,
1991 (1/1/90
—
6/30/90)
R91—2
Proposed Februrary
28,
1991
(7/1
through 12/31/90)
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
1111.
Reg. 8112, effective May 2,
1986.
R87—30
June 30,
1988;
12 Ill.
Reg.
12070, effective July
12,
1988.
The Board
has pending a proposal
to modify the delisting procedures to
allow the use of adjusted standards
in
lieu of site-specific rulemakings:
R9O—17
Adopted February 28,
1991
The Board has procedures
to
be followed
in cases before
it involving the
RCRA regulations:
R84-1O
62 PCB 87,
349, December 20,
1984 and January 10,
1985;
9
Ill.
Reg.
1383,
effective January
16,
1985.
120—337
-6-
The Board also adopted
in Part
106 special procedures
to be followed
in
certain determinations.
Part
106 was adopted
in R85~-22and amended
in R86-46,
listed
above.
The Board has also adopted requirements limiting and restricting the
landfilling of liquid hazardous waste,
hazardous was~tescontaining halogenated
compounds and hazardous wastes generally:
R81—25
60 PCB 381, October 25,
1984;
8
111.
Req. 24124, December 4,
1984;
R83-28
February 26,
1986;
10
Ill.
Req.
4875,
effective March
7,
1986.
R86—9
Emergency regulations adopted
at
73 PCB 427, October
23,
1986;
10
Ill.
Req.
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 V’.
On the other
hand,
regulations which say “If not A,
the state shall
waive
X”
are
more
troubling.
120—338
—7—
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 ~o “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 which grants permanent relief
without eventual compliance.
To grant permanent relief, the Board needs to
grant
a site specific regulation or an adjusted standard pursuant to Sections
27 or 28.1 of
the Act, and 35
ill.
Adm. Code
102 or 106.
As
a final note,
the rules have been edited
to establish a uniform usage
with respect
to
“shall”,
“must”,
“will”, and “may”.
“Shall”
is used when the
subject of
a sentence has to do something.
“Must”
is used when someone has to
do
something, but that someone
is not the subject of the sentence.
“Will”
is
used when the Board obliges
itself to do something.
“May”
is used when a
120—339
-8-
provision
is optional.
Some of the USEPA rules appear to say something other
than what was
intended.
Others do
not read correct1’~y when “Board” or “Agency”
is substituted
into the federal rule.
The Board does
not intend to make any
substantive change
in the rules by way of these edits.
DETAILED DISCUSSION
A Section-by-Section discussion of the proposed 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 R90-10.
These result
in no changes
to the 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.
BASE TEXT FOR R91—1
PROPOSAL
This R91-1 proposal
has some unusual aspects
to
it because of the need to
shift the base text during the course of the proceeding.
In order to try to
keep confusion to a minimum, we are
including
a somewhat detailed explanation
of the base text problem.
R9O—11, the RCRA update for 3/1 through 6/30/90,
is still pending
as
of
the date of this R91-1 proposal.
Moreover, many of the Sections being amended
in the R90-11 update are also being amended
in this R91-1 proposal.
We
normally try to avoid this kind of “overlapping”
situation because of the
potential confusion that can result.
Here,
however, we need to play “catch-
up”
in order to get back on our statutorily required timetable
in Section 7.2
of the Act
for identical
in substance rulemakings.
The Board
is behind
its schedule for adoption of R9O-11
for two
reasons.
First,
as
is discussed above, the Board adopted R90-1O on an
accelerated schedule based on only a three month update period.
Although this
hastened adoption of R9O—10,
it delayed the overall adoption of the USEPA
rules for the remaining three months
in the six—month “batch” period allowed
by Section 7.2 timeframes.
Second, R90—11
involved a very large amount of
text which was difficult to edit.
In spite of the delays, we are hoping that P90—li will
be adopted
by the
timetable specified in the Act,
in this case by May 2, 1991.
However, until
R9O—11
is filed with the Secretary of State, we cannot use it
as
a base text
120—340
-9-
for the “striking and underlining” amendments we are proposing at the Public
Comment stage here
in R91—1.
The Administrative Code does not allow this.
But by the time R91—l gets to the adoption stage, R90-11 will have been filed,
so
at that point R90—l1 will become the base text.
This then will require us
to reformulate the proposal.
We are placed
in
a
situation of having to
“change horses
in the middle of the stream”.
We have concluded that the best course of action
is to in effect “re-
propose” the
R90-11 amendments with
its striking and underlinings,
and use
that format
as the
“base text” for the Public Comment period for R91-1.
We
caution that, where R9i—1
is amending the same section as R90—li,
the striking
and underlining does not distinguish between the two Dockets.
Although this
could be cured
by double underlining, this is unacceptable to the
Administrative Code Division.
We also again caution that,
after R90—11
has been filed,
the base text
for R91-l will be reformulated after the public comment period
to show only
the striking and underlinings attributable to R90—l.
We note that this
reformulation
is potentially more complex and time-consuming than the original
drafting of the proposal.
We recognize that this strategy presents some inconvenience to
a
reviewer.
We do feel, however, that in this instance it
is an appropriate
course of action.
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 703.208
This new Section
is derived from 40 CFR 270.22, which was added
at
55
Fed.
Req.
50489.
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.
40 CFR 270.22(c)(9)
has two related requirements that the 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 703.208(c)(9),
the Board has broken these out into separate
subsections to
improve readability.
Part 720:
General Provisions
Section 720.110
This Section
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.
120—341
-10-
This definition starts with “Drip pad is...”
All of the other
definitions start with “ABC means...”
The Board has proposed to follow the
latter format.
Part 721:
Definition of “Hazardous Waste”
Section 721.104
This Section is derived from 40 CFR 261.4, which was amended
at
55
Fed.
Req. 40837 and 50482,
to add
a temporary exclusion for groundwater which
is
reinjected pursuant to certain petroleum recovery operations, and an exclusion
for certain wood preserving solutions which are reused.
This Section
is
subject
to amendment in R90—l1 prior to
the adoption of this proposal.
Section 721.1O4(a)(9) excludes from the definition of hazardous waste
spent wood preserving solutions which are reclaimed and reused for their
original
intended purpose.
The petroleum recovery exclusion
is
in Section 721.1O4(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 RYO-1O.
USEPA has added this temporary exclusion to keep the
reinjection out of the RCRA and hazardous waste UIC
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
proposed to adopt
the latter date, even though
it
is, strictly speaking,
outside the scope
of this update.
The March
25 date will have passed before this rulemaking
is adopted.
The Board usually does not adopt provisions which expire before Board
adoption.
However, tie Board
has proposed to
adopt this exclusion to 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 proposed the former alternative.
Second, the USEPA subsection applies to operations
“at refineries and
marketing terminals or bulk plants handling crude petroleum and intermediate
products...”
USEPA probably means “or”
i~ieach case,
so that the provision
should read:
“at refineries,
marketing terminals or bulk plants handling
crude petroleum or intermediate products...”
As worded, the USEPA provision
would apply only to something which
is both a refinery and a terminal or bulk
120—342
—11—
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, FO34
and F035, concerning wood preserving wastes.
This Section
is subject to amendments pending
in R90—ll, mainly the
addition of
listing FO39.
These amendments are shown again
in this proposal,
but will probably be adopted
in R90—ll before
this Proposal.
New listings F037 and F038 concern certain petroleum refinery wastes.
The amendments also add a new subsection
(b), with speciallized 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.
Req.
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
proposed
to
make
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
proposed
to
change
“and/or”
to
“or”.
An
example
of
this
occurs
in
the
first
line
of
of
FO38.
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
261.21(b)(l),
which
provides:
“For
the
purpose
of
the
FO37
and
F038
listings,
oil
/
water
/
solids
is
defined
as
oil
and/or
water
and/or
solids.”
Consistent
with
the
above
discussion,
the
Board
has
proposed
to
render
this
as:
“For
the
purpose
of
the
F037
and
FO38
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
solicits coninent.
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
proposed
to
define
“TSD”
as
an
acronym
for
“treatment,
storage
or
disposal”,
and
to
use
this
instead.
The
Board
has
also
proposed
to
place
the
burden
on
the
owner
or
operator,
rather
than
the
inanimate
facility.
120—34 3
—12—
The final
sentence
in listing F038 includes a list of exclusions.
This
reads
as follows:
“Sludges
...,
sludges
...
and F037, K048, and K051
...
are
not included.”
The Board has proposed to render this more clearly by
replacing the
“and”
inside the
list with a comma,
as follows:
“Sludges
sludges
...,
F037,
K048 and K051
...
are not included.”
There are also two minor problems with 40 CFR 261.31(b)(l)(ii)(A).
“The
units employs” has been revised to
“the unit employs”.
The Board has proposed
to replace
“6 hp” with
“6 horsepower”, which
is presumably what USEPA intends.
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.
The Board has attempted to break the longer ones up to make them more
understandable.
In some cases this process has revealed grammatical errors
in
the maze, which the Board has proposed to correct.
In some, discussed below
cases the USEPA rules are ambiguous: the Board has proposed or suggested in
this Opinion what it believes
is the likely meaning,
but solicits coninent.
Subsection
(b): Cleaning or Replacement
of Equipment
General Cleaning or Replacement Standard
The first major problem
is
in
40 CFR 261.35(b), which
is reflected
in
Section 721.135(b).
The first
sentence
is
a general standard for cleaning or
replacing equipment which has come into contact with chiorophenolic
preservatives.
This
is a variation on the general closure performance
standard of Section 724.211.
The generator
is required
to clean or replace
equipment:
un
a manner which minimizes or eliminates the escape of
hazardous
waste
or
waste
constituents,
•leachate,
contaminated
drippage,
or hazardous
waste
decomposition
products
to
the
ground
and
surface
water
and
to
the
atmosphere.
40
CFR 261.35(b)l
There are several problems with this.
One is the form of the first
series, which
is:
“A or
B,
C,
0, or E”.
This
is equivalent to “A,
B,
C,
0 or
E”, the format the Board has used.
This interpretation reads
“hazardous waste”
and “waste constituents”
as
separate elements
in the
list.
It’s possible that
“A or B”
in this provision
ought to read together
as
“hazardous waste or constituents”, grouping
“A” and
“B” to make “hazardous”
modify “constituents”.
The repetition of “waste”
seems
to argue against this meaning.
A second alternative is that “hazardous”
is
supposed to modify “waste or waste constituents”.
120—344
—13—
These two alternatives, together with the option the Board
has proposed,
represent very different closure standards.
As proposed, the generator has to
minimize “waste constituents”, whether they derive from hazardous waste or
not,
and whether they are themselves hazardous or not.
Under the first
alternative,
“hazardous constituents” would have to be minimized, whether they
come from hazardous waste or not.
Under the second alternative,
“hazardous
waste constituents” would have to be minimized.
The Board solicits comment as
to what USEPA means.
The second series
in subsection (b)(1)
requires the operator to clean
so
as
to minimize escape “to the ground
and surface water and to the
atmosphere”.
This
is worded
as
“to (A and B) and to C”.
It would probably be
more clearly stated
as “to A,
B and
C”.
However,
the use of “and” could be
construed as
limiting the standard to cleaning up stuff which escapes to all
three media,
a result USEPA probably did not
intend.
The Board has therefore
worded this as “to A,
B or
C”.
As used
in the Administrative Code,
“A or B”
means
“A or B,
or both”.
As edited by the Board,
the performance standard reads
as follows:
un
a manner which minimizes or eliminates the escape of
hazardous
waste,
waste
constituents,
leachate,
contaminated
drippage
or
hazardous
waste
decomposition
products
to the groundwater, surface water or atmosphere.
35
Ill.
Adm. Code 721.135(b)1
Cleaning and Replacement Options
40
CFR
261.35(b)
then
says
that
“Generators
must
either:...”,
followed
by
a single sentence consisting of
three
subsections
separated
by
semicolons,
each
containing
internal
lists.
To
some
people,
“either”
introduces
a
binary
choice
(“A
or
B”).
And,
it’s
impossible
to make
such
a
long
“sentence” grammatically
correct.
For
example,
40
CFR
261.35(b)(2)
winds
up
reading “Generators shall
either
...
removing
all visible
residues...”
The
Board
has
therefore
replaced
the
introduction
with
the
following
sentence:
“Generators
shall
do one of the following as specified in subsections
(b)(1),
(2) or (3):...”
The three alternatives are:
prepare and conduct a cleaning or
replacement plan;
clean;
or, document prior cleaning or replacement.
It’s not clear what the difference
is between alternatives (b)(1)
and
(2):
if the choice
is
plan
and clean
or clean,
why would anyone choose
plan
and clean?
And,
(b)(1) alone does not include a standard for
“clean”.
It
is possible,
in view of the introductory “either”, that there are
really just two choices:
1
and 21
or
3.
Under this interpretation,
(b)(2)
would
be read as
specifying how “clean” you have to plan for in
(b)(1).
But,
this ignores the “or” between
(1) and
(2).
The Board has
not followed this
interpretation, but
solicits coninent.
120—345
—14-
Cleaning and Replacement Plan
40 CFR 261.35(b)(1)
reads
as follows:
Prepare
and
sign
a
written
equipment
cleaning
or
replacement
plan
that
describes
the
equipment
to
be
cleaned or replaced, how the equipment will be cleaned or
replaced,
and
the
appropriate
solvent
chosen
to use
in
cleaning
and
conduct
cleaning
and/or
replacement
in
accordance with
the plan by replacing
the equipment
and
managing
the
discarded equipment as F032 waste;
or
40
CFR 261.35(b) (1)
There are a number of
internal problems with this subsection.
It has the
following form:
“Prepare
...
plan that describes
A,
B, and
Cl
and conduct
0
or El”.
The Board
has proposed
to break this into subsections dealing first
with the plan and
second with
its implementation.
The result
is as follows:
Cleaning or replacement plan.
A)
Prepare and sign a written equipment cleaning or replacement plan
that describes:
i)
The equipment to be cleaned or replaced;
ii)
How the equipment will
be cleaned or replaced;
And
iii)
The appropriate solvent chosen to use. in cleaning.
And,
B)
Conduct cleaning or replacement
in accordance with the plan by
replacing the equipment and managing the discarded equipment as F032
waste.
35
Ill. Adm. Code 721.135(b)(1)
This
is
a lot easier
to read.
But, there
is still
something wrong.
Why
doesn’t the generator have to plan to manage discarded equipment as hazardous
waste?
And,
why
does
the
generator
have
to
plan
to
“clean
or
replace”,
but
is
only required to “replace”
in accordance with the plan.
Also,
as discussed
above, why
is there no standard for “clean” with this option?
And, why
doesn’t the generator have to discard cleaning residues as
F032 waste
(as
required
in subsection
(b)(2)?
Language fixing these
problems
is discussed
below.
Cleaning
The second option,
40 CFR 261.35(b)(2), reads
as follows:
Removing all visible residues from process equipment; and
rinsing
process
equipment
with
an
appropriate
solvent
until
dioxins
and dibenzofurans
are not detected
in
the
final
solvent
rinse
at
or
below
the
lower
method
calibration
limit
(MCL)
in
Table
1
when
tested
in
accordance
with
SW—846
Method
8290;
and
managing
all
120—346
—15—
residues from the cleaning process
as F032 waste;
40
CFR
261.35(b)(2)
The main problems with this subsection have to do with its relationship
to the rest of the subsection, as discussed above.
For one thing, why doesn’t
subsection
(1)
have the
“how clean” standard and the requirement to dispose
as
F032?
Fixing
these problems would require the major rewrite discussed below.
The internal problem with this subsection also relates to Illinois
Administrative Code requirements.
First,
the Code Division would take the
reference to
“Table
1”
as
a reference to a (nonexistant)
35
Ill. Adm. Code
721.Table
1.
And,
it
is necessary to cross reference to the incorporations by
reference Section, where SW—846 already exists.
Also,
the USEPA
language is
trying to say “use test
X;
interpret the results
in accordance with Y”
backwards,
and with too few words.
The Board has proposed the following to
fix this:
Cleaning.
A)
Remove
all visible residues from process equipment.
B)
Rinse process equipment with an appropriate solvent until
dioxins and
dibenzofurans are not detected
in the final
solvent rinse.
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.
C)
Manage
all residues from the cleaning process as FO32 waste.
35
Ill. Adm. Code 721.135(b)(2)
Documentation of Prior Cleaning or Replacement
The final option allows documentation of prior cleaning or replacement:
Document
that previous equipment cleaning
or
replacement
was performed in accordance with the requirements of
this
section and occurred after a change
in preservative.
40
CFR 261.35(b)(3)1
There are three problems with this subsection.
First,
it requires
documentation of
“cleaning or replacement”
in accordance with this Section.
It needs to
say “cleaning and replacement”.
If only one
is to be
required,
the generator needs
to document why.
Second, the USEPA rule allows the documentation option
“after a change in
preservative”.
The careful use of
“a” negates any implication that the
subsection
is referencing the termination
of use of chlorophenolic
preservatives in subsection
(a).
The generator could document cleaning
following a temporary cessation of
use of chlorophenolics, or, for that
120—347
-16-
matter, even cleaning following the use of a non-chlorophenolic
in preparation
for resuming use of the latter.
Third,
it appears to allow future cleaning and replacement with post—hoc
documentation of compliance.
The Board has not proposed to fix this in the
Proposal, but has
in the alternative language below.
The Board has proposed the following for the third option:
Document that previous equipment cleaning and replacement
was performed
in accordance with this Section and
occurred after cessation of use of chiorophenolic
preservatives.
35
Ill. Adm. Code 721.135(b)(3)
Alternative Version of Cleaning
and Replacement Rules
As discussed above,
the Board has proposed to fix a number of problems
with 40 CFR 261.35(b), but has noted many others.
These have mainly been
fixed by breaking subsections out of the USEPA text.
There
is no way to fix
the remaining problems without internally rearranging subsection
(b).
Since
this would pose a problem with cross references
into this Section,
the Board
has not formally proposed
it.
However,
the Board will
set forth alternative
language for Section 721.135(b)
in this Opinion for the purpose
of soliciting
public coment.
Generators
shall
either
clean
or
replace
all
process
equipment
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,
waste
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
carry
out
a
cleaning
plan
or
replacement
plan;
or
B)
Oocument cleaning and replacement
in accordance with this
Section, carried out after termination of use of
chlorophenolic
preservatives
and
before
June
6,
1991.
2)
Cleaning requirements.
A)
Prepare
and
sign
a written equipment cleaning plan that
describes:
i)
The equipment to be cleaned.
ii)
How the equipment will be cleaned.
120—348
—17—
iii) The solvent chosen to use
in cleaning.
iv)
How solvent rinses will be
tested.
v)
How cleaning residues will
be disposed of.
B)
Equipment must be cleaned as
follows:
1)
Remove all
visible residues from process 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.
0)
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;
iii) How the equipment will be disposed of.
B)
The generator must manage the discarded equipment as F032
waste.
Section 721.App. C
This Section
is derived from 40 CFR 261, App.
III, which was amended at
55 Fed. Req. 50483.
The amendment adds test methods for benzo(kjfluoranthene,
in conjunction with the wood preserving listings above.
This Section
is
subject to amendment in R90-11.
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 proposed
to delete
these,
and replace them with a reference to the 1990 Edition,
as amended
at
55
P1.20—349
—18-
Fed. Reg. 50483.
Note that the reference proposed in R90-11 winds up being
removed
in this rulemaking.
Section 721.App.
G
This Section
is derived from 40 CFR 261, App. VII, which was amended
at
55 Fed. Req. 46396 and 50483,
to
add bases for listing the refinery sludges
and wood preserving wastes discussed above.
This involves addition of entries
for F032,
FO34,
FO35,
F037 and F038.
This Section
is subject
to amendment
in
R90—11
prior
to
the
adoption
of
this
proposal.
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
Benzokfluoranthene,
Heptachlorodibenzofurans and Heptachlorodibenzo—p—
dioxins,
in connection with
the listing of wood preserving wastes.
Part 722:
Generators
Section 722.134
This
Section
is
derived
from
40
CFR
262.34,
which
was
amended
at
55
Fed.
Req. 50483,
in connection with wood preserving wastes.
This Section
is
subject
to amendment
in
RYC—li.
The
amendment
allows
wood
preserving
waste
generators,
without
become
owners or operators of HWM facilities,
to keep hazardous 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.
There are some minor editorial problems with this provision.
First, the
reference to Section “165.114” should probably be
“265.114”, which
is
equivalent to Section 725.214.
Second, following 40 CFR 262.34(a)(2)(ii),
is
an unnumbered “hanging paragraph”.
This is prohibited bythe Administrative
Code Division.
The Board has proposed
to make this
a subsection (a)(2)(C).
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 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 USEPA rule reads:
“except as otherwise provided in
paragraphs
(a),
(b), and
(c)...’
These paragraphs are unrelated alternatives,
so that
“and”
should be “or”.
120— 350
—19-
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.
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).
Subsection
(b)
cross references
an exclusion for drip pads in
structures.
The USEPA rule provides that such pads are not subject to Section
264.572(e)
or (f),
“as appropriate”.
The Board has proposed
to strike this as
unnecessary.
Since it’s an exclusion,
it
doesn’t
matter
whether
they
are
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 proposed to use the dates keyed to the federal effective
date,
rather than keying the dates to some future State effective date.
Because these are HSWA-driven requirements, the USEPA rules become effective
in
Illinois immediately.
(55
Fed.
Reg.
50471)
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.
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
264.572
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
120—35
1
-20-
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 264.572, except those
for
liners
and
leak
detection
systems
specifted
in
Section
264.572(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.
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.
We do not in any event understand either the intent
of or
rationale of this provision.
This
is
also
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.
The Preamble discusses this extension at
55 Fed.
Req.
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 264.572, except those for liners and
leak detection
systems.”
As
is set out below, the Board has proposed to omit the entire
introductory clause to 40 CFR 264.571(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
12 0—35 2
—21—
requirements.
It
is not clear whether the USEPA language does that;
but,
it
comes closer with the introductory clause removed.
Other Editorial Problems with Subsection
(b)(3)
40 CFR 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 proposed to fix 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.
Req.
50454)
As
is
discussed
below,
the
Board
has
proposed that the time limitations on Board variances are “reasonable”.
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.
In the introduction to
this Opinion, there
is
a general discussion of the factors the Board considers
in making these decisions.
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
he
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 V.
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
The
Board
has
evaluated
three
procedural
routes
by
which
a petition
for
extension might be considereth
a variance (see Title
1X of the Act) or an
adjusted standard proceeding
(see Section 28.1 of the Act), or a site specific
rulemaking
(see Title VII of the Act).
The Board proposes
to use the variance procedure.
The decision is
similar to
a variance insofar as it
is
a temporary extension of a compliance
date and
involves environmental effects considerations.
While the USEPA rule
does not,
as does a variance, explicitly require
a showing of arbitrary or
unreasonable hardship,
the Preamble at 55 Fed. Reg. 50454 speaks
of
120—353
—22—
“reasonable” extensions, and by its language appears to implicitly expect a
similar hardship showing.
Another difference
is that, while the USEPA rule
does not
set a maximum time for an extension, variances are limited to five
years and after that require petitions for variance extensions (see Section
36(b)
of the Act).
We feel that this distinction may at worst create
a
procedural
hurdle
if an extension is needed beyond five years.
We
feel that the adjusted standard procedure is not really
appropria.te
in
that it
is established to consider a permanent extension based on
an
alternative standard.
Here,
the USEPA procedure focuses on
a temporary
extension of
an existing standard.
The procedure carries no advantage in
terms of time as opposed to a variance, and, indeed, has no decision deadline
as does a variance.
We believe that the site specific regulatory option,
in terms
of time and
resources alone,
is the least desirable of all.
The Board solicits consuent.
Proposed Text for Section 724.671(b)(3)
The entire proposed 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:
i)
The drip pad meets
all of the requirements of Section 724.672,
except those for liners and leak detection systems specified
in
Section 724.672(b);
and
ii)
That
-it will
continue
to
be
protective
of
human
health
and
the
environment.
As-Built Plans
Section 7224.672(c)
requires the operator to file “as—built” plans with
the Agency following upgrading.
The Board has proposed to insert and delete
several missing and/or extra commas.
Section 724.672
This Section specifies the design and operating requirements for drip
pads at RCRA permitted facilities.
40 CFR 264.572(a)(1) provides that drip pads must:
120—354
—23—
Be constructed of non-earthen materials, excluding wood and non-
structurally supported asphalt;
40
CFR 264.572(a)(1)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 proposed the following:
Not be constructed of earthen materials or wood, or asphalt unless the
asphalt is structurally supported;
35
Ill.
Adm. Code 724.672(a)(1)1
The next provision, provides that drip pads must:
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 264.572(a)(2)l
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 provision.
There
is ambiguity as to how the elements
in the list are supposed to be
grouped.
The most likely grouping
is:
“A,
B and Cl
or solutions
of
0 and
(E or F)”
However, an alternative reading (among many)
is:
“A,
B
and C,
or solutions of ID and El, 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
111.
Adm. Code 724.672(a)(2)
Following
40
CFR
264.572(a)(5)
is
a
“note”
stating
that
USEPA will:
Generaliy
consider applicable standards established by professional
organizatior~sgenerally 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 264.572(a)(5)
This 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 solicits coninent as
to
whether
it should delete this note, or,
in the alternative, complete the
references.
In the latter case,
the Board needs
to know which standards are
to be referenced.
The introduction to
40 CFR 264.572(b) states that “A drip pad must
have...”
As is discussed below
in connection with Section 725.543(b),
the
120—355
-24-
comparable
language in 40 CFR 265.443(b) deals separately with new and
existing drip pads,
requiring compliance by the effective dates
in 40 CFR
265.441(b), which are the same as
in 40 CFR 264.571(b).
It
is likely that the
omission of the reference
in Part 264 was an error
by USEPA.
The Board
solicits con.i,ent.
40 CFR 264.572(e) reads as follows:
Unless protected by a structure
...
the owner or operator shall design
a run—on control system
...
unless the system has sufficient excess
capacity to contain any run-on that might enter the system, or the drip
pad is protected by a structure or cover,
as described
in Section
724.670(b).
40
CFR 264.572(e)1
In
35
Ill. Adm. Code 724.672(e), the Board has deleted the first of the two
“unless” clauses as
redundant.
In Section 724.672(g), the Board has proposed
to separate the two
sentences with a period,
and inserted a needed comma
in the second.
40 CFR 264.572(m)
(equivalent to Section 724.672(m)) requires repairs
within
a “reasonably prompt period” after discovery of a condition which
could cause a release.
The Board
solicits comment as to what “reasonably
prompt” means.
The language in Section 724.672(m)(1)(iii)
has been modified as
is
discussed below in connection with Section 725.543(m)(1)(iii).
This
is
a
compromise text combining the better aspects of the Part 264 and 265 language.
In Section 724.672(m)(2), the
Board has proposed
to break the list of
Agency actions
into elements separated by semicolons.
In 40 CFR 264.572(m)(3), there
is a cross reference to “paragraph (m)(3)
of this section”, which the
Board would ordinarily translate into “subsection
(m)(3)”.
However, the cross reference occurs within subsection
(m)(3).
The
Board has proposed to replace this apparent error with a reference to
“subsection
(ni)(1)(D)”, but solicits comment.
Note that the same apparent
error exists
in the corresponding Section
in
40 CFR 265.
Section 724.673
This Section requires the operator to conduct “inspections” of drip pads
during construction, as well
as weekly and after storms.
Section 724.674
This Section specifies the closure requirements for drip pads.
40 CFR 264.574(c)
has no text.
This is prohibited by the Code Division.
The Board has proposed to insert
a heading.
120—356
—25-
Section 724.675
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 proposed to insert the needed word.
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 to Section 724.290
above.
It adds a subsection
(c), which requires that sumps for drip pad.s 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.
The 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.
40 CFR 264 and 265, Subparts W are unique
in that they do not share the
same final three digits of the Section number.
For example,
40 CFR 264.571
corresponds with 265.441, and 264.573 with 265.444.
The first problem
(.4 v.
.5)
is relatively easy to deal with.
However, for numbers beyond
.xxl,
all
similarity
in numbers ends.
This is because of the frivolous placement of the
standards for new pads in 40 CFR 264.575 and 265.442, which destroys
all
correspondence.
The following is the correspondence table:
40 CFR
35
Ill.
Adm.
40 CFR
35
Ill. Adm.
264.
Code 724.
265.
Code 725.
264.570
724.670
.
265.440
725.540
264.571
724.671
265.441
725.541
264.575
724.675
265.442
725.542
264.572
724.672
265.443
725.543
12 0—3 5 7
-26-
264.573
724.673
265.444
725.544
264.574
724.674
265.445
725.545
264.575
724.675
265.442
725.542
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
solicits comment
as to how this relates to 40 CFR 270.73 and
703.155, which
limit changes
at
interim status facilities.
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 proposed to follow the respective USEPA language, but solicits
comment
as to whether one Part
is
in error.
Section 725.542
This Section specifies design and operating requirements for new interim
status drip pads.
Note that the corresponding Section
is 724.675, which
terminates the correspondence of numbers between Parts 264 and
265.
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 264.572 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.
There
is also
a minor difference between the notes following subsection
(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 preserving industry,
and that the ACI
and ASTM standards
are alternatives.
Subsection
(b) has what may be
an important difference.
While Part 264
provides that “A drip pad must have...”, Part 265 provides separately for new
and existing pads,
and provides that existing pads must meet the requirements
after the effective dates
in
40 CFR 265.441(b), which are the same as the
120—358
—27-
effective dates in 40 CFR 264.571(b).
It
is likely that this is
an error
in
Part 264.
The Board has proposed to follow the language
in the respective
Parts, but solicited comment above.
In the second sentence in subsection (b)(1),
the word “to” is omitted in
“and to prevent releases”.
The Board has proposed to correct this apparent
typo
in Part 265.
While 40 CFR 264.572(b)(2)(A)
has three subsections, 40 CFR
265.443(b)(2)(A)
has only two.
The second subsection
in Part 264 has
been
omitted from Part 265.
This requires that the
leak detection system be
designed to function without clogging through the scheduled closure of the
pad.
This may have been intentionally omitted from Part 265, or could
represent an error by USEPA.
The Board has proposed to follow the language in
the respective Parts,
but solicits comment.
In 40 CFR 264.572(m)
there is
a reference to permit specifications which,
of course,
is not appropriate
in Part 265.
40 CFR 264.572(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)J
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 264.572(m)(1)(iii)J
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 proposed to use 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
724.672
and
725.543(m) (1)(C)
40 CFR 264.572(n) deals only with permits, and hence
is absent from Part
265.
Therefore,
40 CFR 264.572(o) corresponds with 40 CFR 265.443(n).
120—359
—28—
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
proposed to correct 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
proposed to correct to “post—closure”.
The final
sentence
of 40 CFR 264.574(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 proposed
to omit
it,
following
the
federal
text.
However, the Board
solicits comment as to whether this might
be
a USEPA error,
since the concept
would appear to apply also to
interim status landfills.
The Board also notes
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 solicits comment on this also.
This Proposed Opinion supports the Board’s Proposed Order of this same
date.
The Board will allow
45 days for public comment following publication
of the proposal
in the Illinois Register.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk
of
the Illinois Pollution Control
Board,
hereby
certify that the above
Proposed Opinion was adopted on the
~Z~Pday
of
‘)&~-L-’
,
1991,
by
a vote of
7~-C
Dorothy M. ~‘nn,Clerk’
Illinois Po~1utionControl
Board
120—360
