ILLINOIS POLLUTION CONTROL BOARD
December 19,
1991
IN THE MATTER OF:
)
R91—13
RCRA UPDATE, USEPA REGULATIONS)
)
Identical in Substance
(1/1/91
—
6/30/91)
)
Rules)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION OF THE BOARD
(by 3. Anderson):
By a separate Order, pursuant to Section 7.2 and 22.4(a)
of
the Environmental Protection Act
(Act), the Board is proposing to
amend the RCRA hazardous waste regulations.
The amendments
involve 35 Ill.
Adm. Code 703,
720,
721,
722,
724,
725, 726 and
728.
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 comment”
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 January 1 through June 30,
1991.
The USEPA actions during this period are as follows:
____
56 Fed.
Description
Req.
Third third correction
Hydrocarbon Recovery
Toxicity characteristic/CFC5
Boilers and Industrial Furnaces
(BIFs)
Strontium sulfide delisting
correction
Site specific treatment standard
variance
Hydrocarbon recovery——extended
compliance date
Process vents correction
Date
January 31,
1991
February
1,
1991
February 13,
1991
February 21,
1991
3876
3978
5915
7206
February 25,
1991
7568
March 25,
1991
12355
April
2,
1991
13411
April 26,
1991
19290
128—391
2
May 1,
1991
19952
Administrative stay of K069
listing
May 13,
1991
21958
Modification of petroleum
refinery listings
June 13,
1991
27318
Mining wastes exclusion
June 13,
1991
27336
Administrative stay. of wood
preserving rules
The major USEPA actions are the third third correction and
the BIF rules.
The actions are further discussed below.
As is discussed below, the Board has partially addressed
some of these USEPA actions in prior Dockets
(R90-11, R90-17 and
R91-1),
including a portion of the third third correction,
administrative stays and extensions of compliance dates.
USEPA also published a correction to the wood preserving
rules at 56 Fed. Reg.
30195, July 1,
1991.
The Board addressed
this in R90-11, even though it is actually beyond the scope
of
even this update.
As is also discussed below, after the conclusion of this
batch period, USEPA published three corrections to the BIF rules.
These appeared at:
56 Fed. Reg.
32688, July 17,
1991;
56 Fed.
Reg.
42511, August 27,-1991;
and,
56 Fed.
Reg. 43877,
September
5,
1991.
The Board has proposed to address the corrections in
this Docket.
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 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.
As is discussed below, the Board will handle the March 25,
1991,
site specific “treatment standard variance” in much the
same way as a site specific delisting:
the Board will take no
action on the site specific USEPA rule without some form of
petition.
EXTENSION OF TIME ORDERS
Section 7.2(b)
of the Act requires that identical in
substance rulemakings be completed within one year after the
first USEPA action in the batch period.
If the Board is unable
to do so it must enter an “extension of time” Order.
The first USEPA action in this batch period was on January
31,
1991.
This update is therefore due by January 31,
1992.
It
will not be possible to complete this rulemaking before this
date.
The Board therefore expects to enter a “reasons for delay”
128—392
3
order.
The reasons fordelay include the Board’s inclusion in
this Docket of the USEPA corrections to the BIF rules.
HISTORY OF RCRA,
UST and UIC ADOPTION
The Illinois
RCRA,
UST (UndergrQund Storage Tanks) and UIC
(Underground Injection Control) regulations, together with more
stringent State regulations particularly applicable to hazardous
waste,
include the following:
70~
RCRA
and UIC Permit Programs
703
RCRA
Permit Program
704
UIC Permit Program
705
Procedures for Permit Issuance
709
Wastestreani Authorizations
720
General
721
Identification and Listing
722
Generator Standards
723
Transporter Standards
724
Final TSD Standards
725
Interim Status PSD 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
Iii. Reg.
4828,
April
23,
1982.
R82—18
51 PCB 31, January 13,
1983,
7 Ill. Req.
2518,
March 4,
1983.
Illinois received Phase I interim authorization on May 17,
1982
(47 Fed. Reg. 21043).
The UIC regulations were adopted as follows:
R81—32
47 PCB 93, May 13,
1982;
October 15,
1982,
6
Ill.
Reg.
12479.
The UIC regulations were amended in R82—18, which is
referenced above.
The UIC.regulations were also amended in R83-
39:
128—393
4
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
rJSEPA
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. Req.
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. Req.
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.
Req. 18681
(1/1/90 through 6/30/90)
R91—4
Dismissed February 28,
1991
(7/1 through 12/31/90)
R91—16
Dismissed December 6,
1991
(1/1 through 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—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.
128—39
4
5
(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—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.
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)
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)
R89-1
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
128—395
6
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—11
April
11, May 23,
1991;
15 Ill. Reg.
9323,
effective June 17,
1991
(Third Third)
(4/1/90
through 6/30/90);
Corrected August 8,
1991;
Uncorrected August 22,
1991.
R90-17
Delisting Procedures
(See below)
R91—1
August
8,
1991;
15 Ill.
Reg.
14446, effective
September 30,
1991 (Wood Preserving)
(7/1/90
through 12/30/90)
R9l—13
This Docket
(BIFs)
(1/1/91 through 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. Req.
15010,
effective
September 12,
1989 (Financial assurance, October
26,
1989)
R89—1O
February 22,
1990;
14 Ill. Reg.
5797, effective
April
10, 1990
(Initial update, through 6/30/89)
R89—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
(1/1/90
—
6/30/90)
R91—2
July 25,
1991
(7/1 through 12/31/90)
R91-14
Current Docket (1/1/91 through 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. Req.
24562,
effective December 11,
1984.
128—396
7
This was repealed by R85-22, which included adoption of
USEPA’s dioxin listings.
SeOtion 22.4(d) was repealed by S.B.
1834.
The Board has adopted USEPA delistings at the request of
Amoco, Envirite and USX:
R85—2
69 PCB 314, April 24,
1986;
10 Ill.
Reg.
8112,
effective May 2,
1986.
R87—30
June 30,
1988;
12 Ill.
Reg.
12070, effective July
12,
1988.
R91—l2
December 19,
1991
(USX)
The Board has 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
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.
Req. 4875, effective
March
7,
1986.
R86-9
Emergency regulations adopted at 73 PCB 427,
October 23,
1986; 10 Ill. Reg.
19787, effective
November 5,
1986.
The Board’s action in adopting emergency regulations in R86-
9 was reversed (CBE and IEPA v. IPCB et al., First District,
January 26,
1987).
Economic Impact hearings have recently been
completed.
128—397
8
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 Y”.
On the other hand,
regulations which say
“If
not A, the state shall waive
X”
are more troubling.
2.
Is there a clear standard for action such that the Board can
give meaningful review to an Agency decision?
3.
Is there a right to appeal?
Agency actions are generally
appealable to the Board.
4.
Does this action concern a person who is required to have a
permit anyway?
If so there is a pre-existing permit
relationship which can easily be used as a context for
Agency decision.
If the action concerns a person who does
not have a permit,
it is more difficult to place the
decision into a procedural context which would be within the
Agency’s jurisdiction.
5.
Does the action result in exemption from the permit
requirement itself?
If so, Board action is generally
128—398
9
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 coiiunon 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 provision is optional.
Some of the USEPA rules appear to
say something other than what was intended.
Others do not read
correctly when “Board” or “Agency” is substituted into the
federal rule.
The Board does not intend to make any substantive
change in the rules by way of these edits.
DETAILED DISCUSSION
128—39 9
10
A Section-by—Section discussion of the proposed amendments
appears below.
The federal actions involved in this rulemaking
are summarized as follows:
January 31,
1991
56 Fed. Req. 3876
Third third
correction
February
1,
1991
56 Fed. Reg. 3978
Hydrocarbon Recovery
February 13,
1991
56 Fed. Reg. 5915
Toxicity
characteristic
/
CFCs
February 21,
1991
56 Fed. Reg. 7206
Incineration
February 25,
1991
56 Fed. Reg. 7568
Strontium sulfide
delisting correction
March 25,
1991
56 Fed. Req.
12355
Site specific
treatment standard
variance
April
2,
1991
56 Fed. Reg. 13411
Hydrocarbon
recovery——extended
compliance date
April 26,
1991
56 Fed. Reg. 19290
Process vents
correction
May 1,
1991
56 Fed. Reg.
19952
Administrative stay
of K069 listing
May 13,
1991
56 Fed. Reg.
21958
Modification of
petroleum refinery
listings
June 13,
1991
56 Fed. Reg.
27318
Mining wastes
exclusion
June 13,
1991
56 Fed. Req. 27336
Administrative stay
of wood preserving
rules
The largest components of this.update are the corrections to
the “third third” land disposal bans, adopted in R90-11, and the
new incineration rules.
USEPA has essentially reprinted the
“third third” rules to correct numerous editorial errors.
This
has posed major problems, since USEPA does not give any
indication as to what the changes are.
On February
1 and April. 2,
1991, USEPA extended the
temporary exclusion from the TCLP test for lIST clean—up wastes in
Section 721.104(b) (11).
The former extension was adopted in R91-
128—400
11
1, even though it was outside the scope of that update.
The
April
2 extension was not brought to the Board’s attention in
R91-1, and will be addressed in this update.
On February 13,
1991, USEPA also modified the TCLP rules to
avoid encouraging venting of ozone—depleting CFCs.
On February 25,
1991, USEPA repealed the strontium sulfide
listings.
This corrects a USEPA action at 53 Fed. Reg.
43881,
October, 31,
1988, which failed to remove the listing because of
an error in the notice.
This requires no action,
since the Board
successfully removed this listing in R89-1.
On April 26,
1991,
USEPA corrected the process vent rules,
which the Board adopted in R90-11.
On May 1, 1991, USEPA entered an administrative stay of
listing K069.
This concerns sludges from pollution control
equipment at lead smelters.
This appears to be closely related
to the problems with the K066 listing, which was extensively
discussed in R91-1.
On June 13,
1991, USEPA appears to have also
addressed the mining wastes exclusion, which also figured into
the R91-1 Opinion.
On May 13,
1991, USEPA modified the new petroleum refinery
listings, F037 and F038.
The Board adopted these
in R91-l.
On June 13,
1991, USEPA entered an administrative stay of
the wood preserving rules.
The Board addressed this stay in R91-
1.
PART 703:
RCRA
PERMITS
This Part,
along with Part 702, contains the RCRA permit
requirement.
Most of the amendments to this Part relate to the
new “BIF”
(“boiler and industrial furnace”) rules
in Part 726,
below,
parts 702 and 703 are drawn from 40 CFR 270.
Section 703.150
USEPA published a correction to the BIF rules at 56 Fed.
Req. 32688,
July 17,
1991.
As is discussed above and in
connection with Part 726, the Board has included this correction
in this update Docket.
The correction includes an amendment to
40 CFR 270.1(b), which is not listed as having an equivalent
Board rule in the correspondence tables last published in R89-9.
However, the subject matter of 40
CFR
270.1(b) appears to be
identical to 40 CFR 270.10(e) (1) (i), which appears in the Board
rules as Section 703.150(a) (1).
The USEPA correction to 40 CFR 270.1(b)
is an addition of a
cross—reference to “part 266”
Part
726).
This appears to be
128—401
12
correcting a longstanding problem with the USEPA rule, since the
reference to “part 266” exists in the language in 40 CFR
270.10(e) (1) (i), which otherwise says the same thing.
As if this is not confusing enough, the Board’s equivalent
rule,
Section 703.150(a) (1), does not have the reference to Part
726 266.
This appears to be a longstanding error in the
Board’s rules, which probably occurred when the Section was
originally adopted.
At that time the Board did not expect to
have to, adopt Part 266, and hence omitted all references.
The
Board has therefore proposed to add the needed references,
although this action is more in the nature of a correction to
conform with the CFR than a response to the USEPA correction.
It is rather difficult to compare Section 703.150 with 40
CFR 270.10(e).
This mainly stems from the arrangement of the
subsections.
The Board has proposed to rearrange Section 703.150
so it tracks 40 CFR 270.10(e) more closely.
Also,
the Board has
added “Board notes” to each subsection referencing the equivalent
federal rule.
Section 703.155
This Section is drawn from 40 CFR 270.72, which was amended
at 56 Fed. Req. 7206,
February 21,
1991.
This Section. prohibits
changes to interim status facilities without filing a Part B
permit application.
The amendments add subsections
(a) (6) and
(b) (7), which allow a revised Part A application to cover newly
regulated units.
In other words, persons with newly regulated
BIF units will be able to file a Part A to acquire interim status
for the BIF.
The USEPA language requires the Part A “on or before the
unit becomes subject to the new requirements”.
The Board has
proposed to adopt the USEPA language verbatim.
However, at the
State level this would trigger the Part A on the Board’s adoption
of the new requirement.
If USEPA wants the Part A to be
triggered on the date of adoption by USEPA, the language would
require revision.
The Board solicits
comment.
Section 703.157
This Section is drawn from 40 CFR 270.73, which was amended
at 56 Fed. Reg.
7206, February 21,
1991,
and corrected at 56 Fed.
Req.
32688, July 17,
1991,
and at 56 Fed. Req. 42511, August 27,
1991.
This Section governs termination of interim status.
The amendment affects Section 703.157(f)
and
(g).
The
existing rule terminates interim status for incinerators and
other facilities by November 8,
1986 and 1988.
The amendments
(as corrected)
add the phrase “which has achieved interim status
prior to Novembei
8,
1984” to these termination dates.
The
128—402
13
result appears to be to allow extended interim status for BIFs
now being brought into the program.
Section 703.208
This Section is drawn from 40 CFR 27022, which was adopted
at 56 Fed. Reg. 7206,
February 21,
1991, and corrected at 56 Fed.
Req. 32688, July 17, 1991.
This specifies the
RCRA
permit
application module for a BIF.
40’ CFR 270.22(b) (4) (ii)
(Section 703.208(b) (4) (B)) requires
the trial burn plan to:
Identify the types and concentrations of organic
compounds listed in
35
Ill.
Adm.
Code 721.Appendix H,
that are emitted when burning hazardous waste in
conformance with procedures prescribed by the Director;
In the first place,
this probably has a misplaced modifier.
The “in conformance clause” is probably intended to modify—
“Identify” rather than “burning”.1
In other words, the rule
should read:
Identify,
in conformance with procedures prescribed by
the Director, the-types and concentrations of organic
compounds listed in
35
Ill.
Adm. Code 721.Appendix H,
that are emitted when burning hazardous waste.;
The second problem is that the rule does not provide a
procedural context in which the Director would “prescribe”
procedures.
This is part of the alternative hydrocarbon limit
showing discussed below in connection with Section
726
•
204 (f) (3) (C) (i).
Consistent with the discussion below, the
Board believes that the Director is. supposed to “prescribe” the
conditions when he approves the trial burn plan under 40 CFR
270.66(d)
(Section 703.232(d)).
The Board has therefore worded
this to reference that subsection, but solicits comment.
The
proposed language of Section 703.208(b) (4) (B)
is as follows:
Identify,
in conformance with Section 703.232(d), the
types
and concentrations of organic compounds listed in
35 Ill.
Adm.
Code 721.Appendix H that are emitted when
burning hazardous waste;
11f the “in conformance” clause modifies “burning”, then the
rule
would
leave
it
to
the
Director
to
specify
all
of
the
requirements for burning hazardous waste.
This would contradict
Part 266
726)
which specifies these.
At the State level,
it would
be
an unacceptable
subdelegation
of
the Board’s
duty to
adopt
environmental control standards under Section 5 of the Act.
128—403
14
Section 703.210
This Section is drawn from 40 CFR 270.24, which was amended
at 56 Fed. Req.
19290, April 26,
1991.
The Board made this
correction to the process vent rules in R91—1.
Section 703.211
This Section is drawn from 40 CFR 270.25, which was amended
at 56 F~d.Req.
19290, April
26,
1991.
This is another
correction to the process vent rules adopted in R91—1.
Item 18
in the correction is directed to 40
CFR
270.25(e) (2).
However,.
there appears to be no such subsection.
The Board believes that
this correction is directed to 40 CFR 270.25(d) (2).
The Board
has proposed to make the correction at the corresponding Section
703.211(d) (2).
Section 703.232
This Section is drawn from 40 CFR 270.66, which was added at
56 Fed. Req.
7206,
February 21,
1991, with the BIF rules.
This
Section was also corrected at 56 Fed. Req. 32688, July 17,
1991.
This new Section appears in the portion of the USEPA and Board
rules which governs “short term and phased permits”.
The
operator of a BIF gets-a succession of permits which allow trial
burns to establish conditions for the Part B RCRA permit.
40 CFR 270. 66(d) (3)
703.232(d)
(3)
requires the operator to
submit the results of the trial burn to the State Director
“within 90 days of completion of the trial burn, or later if
approved by the Director”.
This poses a potential problem as to
whether this is a “waiver” of a Board rule which would require
some form of Board action, as is discussed in the general
introduction to this Opinion.
However,
as the Board construes
the TJSEPA rule,
it is specifying a condition in the trial burn
plan,
along with a provision allowing the Agency to specify a
different length of time.
So construed, the provision falls
squarely into the Agency’s permit issuance authority.
The Board
has modified the text of the USEPA rule to make this
interpretation clear.
The text of Section 703.232(d) (3)
reads as
follows:
The applicant shall submit to the Agency a
certification that the trial burn has been carried out
in accordance with the approved trial burn plan,
and
submit the results of all the determinations required
in subsection
(c).
The Agency shall,
in the trial burn
plan,
require that the submission be made within 90
days after completion of the trial burn,
or later if
the Agency determines that a later date is acceptable.
128—404
15
Section 703.280
This Section is drawn from 40 CFR 270.42, which was amended
at 56 Fed. Req. 7206,
and corrected at 56 Fed. Reg.
32688, July
17,
1991.
This Section deals with permit modification at the
request of the permittee.
The amendments are a part of the BIF
rules, and hence deal with permit modification for persons who
already have a RCRA permit, and also have a BIF, which now needs
to be added to the permit.
These persons are authorized to
continu~operating the BIF if they submit
a permit modification
request within 180 days after the effective date of the new
rules.
40 CFR 270.42(g)(1)(iv)
703.280(q)(1)(D)
is the provision
which requires the modification application.
There are three
minor problems with its wording.
As corrected,
40 CFR
270.42(g) (1) (iv) reads as follows:
The
permittee is authorized if...)
The permittee also
submits a complete Class
2 or
3 modification request
within 180 days of the effective date of the rule
listing or identifying the waste, or subjecting the
unit to RCRA Subtitle C management standards;
The first problexnis the “within 180 days of”.
This clearly
means “after”, the language the Board used in originally adopting
the equivalent of this Section.
The second problem is, when is the “effective date”.
The
Board has proposed the verbatim USEPA text.
However, at the
State level, this will mean “within 180 days after the effective
date of the Board rule”.
If USEPA wants the Board to use the
earlier federal effective date,
the language will require
revision.
The Board solicits comment.
The third problem is the reference to “RCRA Subtitle C
management standards”.
At the State level, this probably would
be an incorporation by reference.2
Rather than deal with the
problems of making this type of reference, the Board has proposed
to cite to the “RCRA management standards” as embodied in the
State rules.
This appears to be Parts 724, 725 and 726.
As proposed by the Board,
Section 703.280(g) (1) (D) reads as
follows
(with striking and underlining relating to the existing
Board rule):
In the case of Classes
2 and
3 modifications, t~he
2lndeed, the USEPA rule needs a definition of “RCRA Subtitle
C management standards”.
As written,
this could
be construed to
mean the adoption of statutory changes by Congress.
128—405
16
permittee also submits a complete permit class
2 or
3
modification request within 180 days after the
effective date of the rule listing or identifying the
waste,
or subiecting the unit to management standards
under 35 Ill.
Adm. Code 724. 725 or 726
Section 703.283
This Section is drawn from 40 CFR 270.42(c),
which was
correct,ed at 56 Fed. Reg.
32688,
July 17,
1991.
This is also
connected with the BIF amendments and correction.
This
subsection was only amended in connection with the corrections.
The change to 40 CFR 270.42(c)(1)(iv)
703.283(a)(4)
is
rather simple, with striking and underlining shown vis—a-vis the
1990 Edition of the CFR:
Provides the applicable information required by 40 CFR
270.13 through 270.2-1~i,270.62~and 270.63, and
270. 66.
However, this becomes rather more complex at the State
level,
since smaller Sections are used.
The following is a
correspondence table for the Sections cited:
40 CFR 270.
35 IAC 703.
270.13
703.181
270.14
703.182
—
703.187
270.15
703.201
270.16
703.202
270.17
703.203
270.18
703.204
270.19
703.205
270.20
703.206
270.21
703.207
270.22
703.208
270.23
703.209
270.62
703.222
—
703.225
270.63
703.230
128—406
17
270.66
270.232
The equivalent Board amendment reads as follows:
Provides the applicable information required by Section
703.181 through 703.105703.187,
703.201 through
703.207703.209, 703.221 through 703.225~.and 703.230
and 703.232.
Appendix A
This Section is drawn from 40 CFR 270, Appendix I, which was
amended at 56 Fed. Req.
7206, and corrected at 56 Fed.
Req.
32688, July 17,
1991.
This Appendix lists types of permit
modifications, and assigns them to Classes, which determines the
procedures needed for that type of modification.
The amendment
assigns various BIF—related modifications to Classes.
The amendments address heading “L.”,
at the end-of the
Appendix.
Items L.5.b and c are omitted from the Federal
Register publication.
However, the dots appear to mean that they
are retained without change.
PART-
720:
GENERAL PROVISIONS
Part 720 includes the definitions and incorporations by
reference for the standards of Parts 721 through 728.
Section 720.110
Definitions
This Section was amended at 56 Fed. Req. 7206, February 21,
1991.
It adds new definitions related to the new incinerator and
industrial furnace and boiler rules.
New definitions include:
“carbon regeneration unit”,
“infrared incinerator”, “plasma arc
incinerator” and “sludge dryer”.
The existing definitions of
“incinerator” and “industrial furnace” are amended.
Two
of the USEPA definitions have subdivisions.
These are
not allowed under Code Division rules.
Rather, the subdivisions
must be presented as unnumbered blocks, with subordination
indicated by the levels of subdivision.
The new definition of “incinerator”
is extraordinarily
complex, but appears to make sense as written.
The USEPA
definition reads as follows:
“Incinerator” means any enclosed device that:
1)
Uses controlled flame combustion and neither meets
the criteria for classification as a boiler,
sludge dryer or carbon regeneration unit,
nor is
128—407
18
listed as an industrial furnace;
or
2)
Meets the definition of infrared incinerator or
plasma arc incinerator.
This would be easier to state if paragraphs
(1) and
(2) were
reversed, placing the catch—all and exclusions at the end.
In
other words, an “incinerator” is an “infrared incinerator”,
a
“plasma arc incinerator”, or some other type of device which uses
“contro)ded flame combustion”, other than a “boiler”, “dryer”,
etc.
The Board solicits comment as to whether it ought to
fundamentally rewrite this definition along these
lines.
Rather than rewrite the definition, the Board has proposed
to break out paragraph
(1)
for greater clarity.
As presented in
the Code Division format, the definition reads as follows:
“Incinerator” means any enclosed device that:
Uses controlled flame combustion and neither:
Meets the criteria for classification as a
boiler,
sludge dryer or carbon regeneration
unit,
nor
Is listed as an industrial furnace;
or
Meets the definition of infrared incinerator or
plasma arc incinerator.
Within the definition of.”industrial furnace”, a new
specific type has been added, the “halogen acid furnace”.
These
are used in chemical production facilities to produce,
for
example, hydrochloric acid from a chlorinated organic waste.
The definitions of “infrared incinerator” and “plasma arc
incinerator” have similar, minor grammatical problems.
The Board
has proposed to reword these so they take the form of “X’ means
A which is B and which is C”.
As proposed, these definitions
read as follows:
“Infrared incinerator” means any enclosed device which
uses electric powered resistance heaters as a source of
radiant heat and which is not listed as an industrial
furnace.
“Plasma arc incinerator” means any enclosed device
which uses a high intensity electrical discharge or arc
as a source of heat and which is not listed as an
industrial furnace.
The new definition of “sludge dryer” appears to have a minor
128—408
19
substantive error.
The definition specifies
a sludge dryer
is a
device which “has a maximum total thermal input
...
of 2500
Btu/lb...”
This probably would be better stated as “has a
maximum total thermal input
...
of 2500 Btu/lb or less...”
(As
worded, the USEPA seems to say that the rated maximum of the
dryer has to be exactly 2500 Btu/lb.)
The Board has proposed to
word this definition as follows:
“Sludge dryer” means any enclosed thermal treatment
device which is used to dehydrate sludge and which has
a total thermal input, excluding the heating value of
the sludge itself, of 2500 Btu/lb or less of sludge
treated on a wet weight basis.
Section 720.111
Incorporations by Reference
This Section was amended at 56 Fed. Req.
7206,
February 21,
1991.
The amendment adds a reference to “Screening Procedures
for Estimating the Air Quality Impact of Stationary Sources”,
available from NTIS.
In addition, as is discussed below—in
connection with Section 726.Appendix
I and J, two other documents
were referenced into 40 CFR 266, but not added to the table in 40
CFR 260.11.
The three added references are as follows:
“Guidance on Air Quality Models”, Revised 1986.
(Document number PB86-245-248
(Guideline) and
PB88—150—958
(Supplement)).
“Methods Manual for Compliance with BIF
Regulations”, December,
1990.
(Document number
PB91—120—006)
“Screening Procedures for Estimating the Air
Quality Impact of Stationary Sources”, August,
1988 (Document number PB89—159396).
In addition,
as is discussed below in connection with
Section 726.200(g),
USEPA references 40 CFR 51.100(u) for the
definition of “good engineering practice stack height”.
This has
to be treated as an incorporation by reference at the State
level.
The Board has also proposed to update all other routine
references to the Code of Federal Regulations to reflect the 1991
Edition, which includes rules adopted by USEPA through June 30,
1991.
PART 721:
DEFINITION OF HAZARDOUS WASTE
This Part is the definition of “solid waste” and “hazardous
waste”.
It defines the scope of the program so far as subject
matter is concerned.
128—409
20
Section 721.102
“Solid Waste”
This Section was amended at 56 Fed. Req.
7206, February 21,
1991.
This adds a new subsection
(d) (2), which includes in the
definition of “inherently waste—like materials”,
secondary
materials, which are listed or characteristic hazardous waste,
and which are fed to a “halogen acid furnace”, which is defined
above.
This Section was corrected in the BIF corrections discussed
mainly in connection with Part 726.
In the July 17,
1991
correction, the instructions for the addition of new subsection
(d) (2) were revised.
However,
it is not clear what was changed.
In the August 27,
1991 BIF corrections,
40 CFR
261.2(d) (2) (i)
—
(iii)
721.102(d)(2)(A)
—
(C)) were added.
This
is a new exclusion for certain brominated wastes which are the
subject of an internal recycle to a halogen acid furnace.
Section 721.103
“Hazardous Waste”
This Section was amended at 56 Fed. Reg.
3876, -January 31,
1991,
the “third third” corrections.
In addition, the Section
was corrected in connection with the BIF rules
in both the July
17 and August 27,
1991,
corrections.
There was no amendment to this Section in connection with
the original BIF rules on February 21,
1991.
However,
a cross
reference in 40 CFR 261.3(c) (2) (ii) (B) was corrected and
recorrected in the -corrections.
The cross reference appears at
Section 721.103(c) (2) (B)
(ii),
as follows:
The
following solid wastes are not hazardous...
Wastes from burning any of the materials exempted from
regulation by Section 721..106(a)(3)(E),
(F),
(G)T ~QI
(H)
or
(I)
The main amendment was adopted by USEPA in connection with
the third third corrections.
It adds a proviso to Section
721.103 (d) (1).
Characteristic hazardous wastes generally are
removed from the regulatory definition if the hazardous
characteristic is removed.
However, under the amendment, such
wastes may still be subject to the land disposal restrictions in
Part 728.
Section 721.104
Exclusions
This Section contains a list of specific exclusions from the
definition of “hazardous waste”.
It was amended five times
during the update period, at 56 Fed. Req.
3978,
5915,
7206,
13411
and 27318.
128—4 10
21
Section 721.104(a) (10) was amended at 56 Fed. Reg.
7206,
in
connection with the incinerator rules.
This excludes from the
definition of “hazardous waste”, coke and coal tar from the iron
and steel industry, which is produced from “decanter tank car
sludge”, K087.
Section 721.104(b)(4),
(7)
and
(8) were also amended in
connection with the incinerator rules.
These add cross
referenpes to new Section 726.212 for the following types of
excluded wastes:
fly ash,
mining wastes and cement kiln dust.
Facilities operating under these exclusions are potentially
subject to these new rules.
Section 721.104(b) (7) was also amended at 56 Fed. Reg.
27318, June 13,
1991, which specifically addressed the mining
waste exclusion,
which was a major topic
in the R91-1 Opinion.
The only change to the text of the rule appears to be a shift
from “will include” to “includes” in the introductory language to
the list of “processing” operations.
The Board has proposed to
make this change.
However, a 12 page “Appendix” appears after
the-text of the regulatory language in the Federal Register.
The
“Appendix”
is prefaced with a note that it “will not appear in
the Code of Federal Regulations”.
The Board solicits comment as
to whether
it
ought
to-
add
a “Board Note” to Section
721.104(b) (7), referencing this “Appendix”.
Section 721.104(b) (11) was amended two times,
at 56 Fed.
Req.
3978, February
1,
1991, and at 56 Fed. Reg.
13411, April
2,
1991.
These amendments both concern the applicability of the
TCLP test, adopted in R90-10, to groundwater which is reinjected
pursuant to petroleum recovery corrective action.
As was discussed on p.
28 in the R91—l Opinion, the TCLP
test had the effect of bringing many petroleum recovery clean up
waters into the definition of “hazardous waste”, potentially
subjecting UST clean ups to additional regulatory requirements.
During the “free phase recovery” portion of a groundwater
cleanup, the operator is attempting to remove petroleum product
which
is essentially floating on the water table.
Water is
separated from the product on the surface.
This water is~
saturated with petroleum product, and hence may fail the TCLP
test.
It would be possible to treat this water prior to
reinjection.
However, this would reduce the efficiency of the
free product recovery,
since additional free product would just
be dissolved in the water,
and become unrecoverable.
After the
free product recovery phase, the clean up enters the groundwater
clean up phase,
in which the dissolved product is removed.
The February 1 action was an extension of the effective date
of the temporary USEPA extension,
to March 25,
1991.
The Board
acted on this in R91-1,
even though it was outside the normal
128—4 11
22
scope of that update.
The April
2,
1991, USEPA action extends the free product
recovery exclusion to January 25,
1993,
subject to new
limitations affecting the scope of the exclusion.
The Board has
proposed to adopt the USEPA extension.
One of the new limitations
is that the clean up has to be
conducted pursuant to a “written state agreement”,
a copy of
which h,as to be filed with USEPA.
This poses two minor problems
in implementing the rules:
identifying the “state agreement”
with reference to Illinois law, and whether the agreement needs
to be separately filed with the Agency.
In the UST program proper, the “agreement” would appear to
be the “free product recovery report” under Section 731.164.
However, the exclusion appears to extend also to releases from
above—ground tanks at refineries.
The Board solicits comment as
to the identity of the agreement in such a case.
Furthermore,
the Board solicits comment as to whether the Agency needs a
second copy of the agreement filed with it.
Technically the Board’s rules will- have been without the
free product recovery exclusion since March 25.
However, the
Board views short—term- USEPA extensions of this sort as
automatically operative in Illinois pending Board action on the
extension.
The final USEPA amendment to this Section is the addition of
Section 721.104(b) (12), at 56 Fed. Req.
5915,
February 13,
1991.
This excludes used chlorofluorocarbon (CFC)
refrigerants from the
definition of “hazardous waste” provided they are reclaimed.
Some CFCs may be hazardous waste under the new TCLP test (R90-lO)
because of traces of regulated constituents, such as carbon
tetrachioride.
CFC refrigerant recycling does not pose any
significant hazard to groundwater, the primary focus of the
hazardous waste regulations.
However,
if the CFC refrigerant
recycling industry is brought into the hazardous waste program,
operators will probably vent the CFCs to the atmosphere, rather
than comply with the paperwork requirements associated with
hazardous waste.
This would contribute to upper—atmosphere ozone
depletion.
USEPA has therefore excluded CFC refrigerant
recycling.
The USEPA rule has a minor typo which the Board has proposed
to correct.
This involves the insertion of a comma following the
list of equipment.
Section 721.106
Requirements for Recyclable Materials
This Section was amended at 56 Fed. Req. 7206, February 21,
1991,
in connection with the BIF rules..
The Section was also
128—412
23
corrected in the July 17,
1991, correction to the BIF rules.
Section 721.106(a) (3) (G)
has been deleted, and subsequent
subsections renumbered.
This removes coke and coal tar from the
materials which are excluded from the definition of “hazardous
waste”, based on recycling.
This has been replaced with the more
limited exclusion in Section 721.104(a) (10), discussed above.
The July 17,
1991, correction concerns a cross—references in
40 CFR 261.6(a)(2) and (a)(2)(ii)
721.106(a)(2)
and (a)(2)(B).
These add references to new Subpart H in Part 266
(726).
Section 721.120
Hazardous Characteristics in General
This Section was amended at 56 Fed. Reg. 3876, January 31,
1991, the “third third” correction.
The Board apparently made
the correction in R90—11.
However, there appears to be an
additional error in the USEPA, and Board,
rule which ought to
have been corrected in connection with the incineration rules
(February 21,
1991).
This Section should also cite to Part 726.
The Board has proposed to add this,
but solicits comment.
Section 721.131
Listed waste from Nonspecific Sources
This Section was amended in three USEPA actions, at 56 Fed.
Req.
3877,
21958 and 27336.
The amendments at 56 Fed. Req.
27336,
June 13,
1991, concern
F032,
F034 and F035.
This is the “administrative stay” of the
wood preserving rules.
The Board acted on this stay in R91—1,
even though it was outside the normal scope of that update.
The
Board has pending a proposal,
in R91-26, to extend some of the
compliance dates associated with this stay.
The Board has shown
the R91-26 extension as
a proposed amendment in this Docket also,
but will probably take action in R91-26 before taking final
action in this Docket.
The amendments at 56 Fed.
Req. 21958, May 13,
1991,
concern
F037 and F038, petroleum refinery oil/water/solids separation
sludges.
The Board adopted these listings
in R91—1.
The
amendments add to the lists of what is excluded from the
listings.
The new exclusion is solids separated from certain
-non—contact cooling waters.
The F037 and F038 listings appear to have two minor typos.
In F037,
USEPA appears to have changed a “sludges” to a “sludge”
for no apparent reason.
In F038, the USEPA rule has a series
which reads “X,
Y and
Z and B,
C, and D”, which the Board has
shortened to “X,
Y,
Z,
B, C and D”.
USEPA amended the F039 listing at 56 Fed. Req.
3876, January
31,
1991, the third third corrections.
F039 is leachate from
128—413
24
disposal of mixed hazardous wastes.
The amendments appear to be
a refinement of the definition of this listing.
Section 721.132
Listed Wastes from Specific Sources
Listing K069 was amended at 56 Fed. Reg.
19952, May
1,
1991.
This is an administrative stay of the listing of emission control
dust and sludge from secondary lead smelting.
This appears to be
closely related to the issues concerning K066, which were
discussed at length in R91—1.
The Board has proposed to adopt
the language of the USEPA stay.
The K069 listing appears to be a “non—HSWA” regulation3,
which has already been adopted by Illinois, and which is a part
of Illinois’ authorized program.
As such,
the USEPA regulation
and stay do not apply directly in Illinois.
However, the
Illinois “identical in substance” mandate requires the Board to
adopt the USEPA stay within one year.
The USEPA stay provides4 that:
This listing is stayed administratively for sludge
generated from secondary acid scrubber systems.
The
stay will remain in effect until further administrative
action is taken.
-
If EPA takes further action effecting
(sic)
this stay,
EPA will publish a notice of the
action in the Federal Register.
The wording of this provision is somewhat different than the
wording of the notes to the wood preserving listings in F032
-
F035, which were addressed above and in R91-1, and which caused
problems for Board implementation.
In this stay,
USEPA is
specific that a further regulatory action would be required to
remove the stay, as opposed to an internal “administrative
action”.
Since a regulatory action will be taken,
it is clear
that the Board will be able to remove the stay by a normal
3A “HSWA” regulation is one which USEPA was required to adopt
pursuant to the 1986 HSWA Amendments to the RCRA Act.
Such rules
are
immediately
effective
as
federal
law,
even
in
authorized
States.
“Non—HSWA” rules are other USEPA RCRA rules.
They are not
effective in authorized states, such as Illinois, until the state
adopts them.
4Although the USEPA stay language is.written in general terms,
USEPA discusses
it as though it were a site-specific stay for
a
facility in Pennsylvania
(56 Fed. Req. 19951).
As is discussed in
the general
introduction to this Opinion,
the Board
ordinarily
adopts
only
rules
which
are
applicable
in
Illinois
Section
7.2(a)(1)
of the Act).
Here the Board
is following the language
of the USEPA rulE~,rather than the discussion.
128—4 14
25
regulatory action pursuant to Sections 7.2 and 22.4(a)
of the
Act.
Accordingly, the Board has provided that the stay will
continue until the note is removed.
The complete language is as
follows:
BOARD NOTE:
This listing is administratively stayed
for sludge generated from secondary acid scrubber
systems.
The stay will remain in effect until this
note is removed.
An alternative formulation would provide that the stay would
continue only until USEPA removed the note from the federal rule,
and would deem the federal action to apply in Illinois until the
Board took action.
The Board solicits comment.
Section 721.133
(Not Amended)
USEPA amended 40 CFR 261.33, and Appendix VIII
(Section
721.133 and Appendix H)
at 56 Fed. Reg.
7568,
February 25,
1991.
This removed strontium sulfide from the listed wastes
(P10-7), and
as a hazardous constituent.
This corrects a USEPA action at 53
Fed. Reg.
43881,
October 31,
1988, which failed to remove the
listing because of an error
in the notice.
This requires no
action,
since the Board successfully removed this listing in R89-
1.
Appendix I
(Not Amended)
USEPA amended 40 CFR 261, Appendix IX,
at 56 Fed.
Reg.
19586.
This is a site-specific delisting for USX in Chicago and
Gary,
IN.
As provided in Section 720.122(m)
et seq.,
as amended
in R90-17, the Board does not adopt such site-specific rules
unless and until someone files a petition showing that the rule
needs to be adopted as a part of the Illinois program.
This
delisting is pending before the Board in R9l—12.
PART 722:
GENERATOR STANDARDS
This Part includes the standards which are applicable to
generators of hazardous waste.
Section 722.110
This Section is drawn from 40 CFR 262.10, which was amended
at 56 Fed. Req.
3876, January 31,
1991, the third third
corrections.
The amendment adds a reference to Part 268
728)
to
“Note 2” following 40 CFR 262.10(f).
The Administrative Code prohibits multiple “Notes” such as
are used in the CFR.
Therefore,
in the Board rules,
“Note 1”
appears after Section 722.110(f),
and “Note 2” after Section
722.110(e).
This makes it difficult to compare the Board and
128—415
26
USEPA text.
The Board has therefore proposed to move the text of
“Note 2” down so it follows “Note 1”.
However, these have to
appear as a single “Note”.
The amendment appears in the
underlined portion of the Note following Section 722.110(f).
Section 722.111
Not Amended
This Section is drawn from 40 CFR 262.11, which was amended
at 56 Fed. Req.
3876, January 31, 1991,
the third third
correct~ions. The Board made this correction in R91—1.
Section 722.134
This Section is drawn from 40 CFR 262.34, which was amended
at 56 Fed. Reg.
3876, January 31, 1991,
the third third
corrections.
The correction adds to Section 722.134(d) (4)
a
reference to Section 728.107(a) (4).
The USEPA language includes a series of the form “A,
B,
C”.
USEPA clearly intends that these be connected with an “and”,
which the Board has inserted.
Moreover, the USEPA rule is worded
as “complies with the requirements of A, the requirements of
B,
and
the requirements of C”.
The Board has proposed to shorten
this by consolidating the multiple “requirements”5.
The Board’s
proposed language is as follows:
The generator complies with the requirements of
subsections
(a) (2)
and -(-a-)-(3)~and thc rcquirement3 of
35 Ill.
Adin. Code 725.Subpart C and of 35 Ill. Adm.
Code 728.107(a) (4)
PART 724:
STANDARDS FOR PERMITTED HWN FACILITIES
This Part includes the standards for facilities which
include a HWN (hazardous waste management) unit and which have a
permit.
Part 725 applies prior to permit issuance.
Section 724.212
This Section is drawn from 40 CFR 264.112, which was amended
at 56 Fed. Req.
7206, February 21,
1991, the BIF rules.
The
amendment adds a sentence to Section 724.212(d)
concerning
closure of a BIF.
The new language is as follows:
The owner or operator shall notify the Agency in
writing at least 45 days prior to the date on which the
owner or operator expects to begin partial or final
5For
that
matter,
“requirements
of”
could
be
eliminated
altogether.
Is there anything in the cited Sections which is not
a “requirement”.
If so, what is it doing in the rule?
128—4 16
27
closure of
a boiler or industrial furnace, whichever is
earlier.
The “whichever is earlier” apparently refers to the “partial
or final” closure option.
Section 724.440
This Section is drawn from 40 CFR 264.340, which was amended
at 56 F~d.Req.
7206,
February 21,
1991, the BIF rules.
This
Section is the introduction to the incinerator rules.
The
amendment affects Section 724.440(a).
The text of the Board
proposal is as follows:
The regulations in this Subpart apply to owners and
operators of facilitic3 that incinerate hazardous waste
incinerators
(as defined in 35
Ill.
Adm. Code 720.110),
except as Section 724.101 provides otherwise.
‘I’he
following facility owners and operators arc considered
to incinerate hazardous waste:
1)
Owners
or operators of hazardous waste
incincrators
(as defined in 35
Ill. Adm. Code
720.110); and
2)
Owncrs or
in boilers
operato
or in
rs who burn
industrial
hazardous waste
furnaces in order
to destroy them,
or who burn hazardous waste
in boilers or in industrial furnaces for any
i14~,rc
1~111noseand elect to be regulated
—--J~-~.—..~
~--.-—~
unaer this Cubpart.
The instructions in the Federal Register are ambiguous as to
whether the second sentence and
(a) (1) and
(2) are to be
repealed.
The Board believes, however, that the repeal is
consistent with the remainder of the BIF rules.
The incinerator
rules
in Part 724 now defer to the Part 720 definition of
“incinerator” for their scope.
“BIFs” are regulated under Part
726, rather than Part 724.
Section 724.672
Not Amended
This Section is drawn from 40 CFR 264.572, which was amended
at 56 Fed. Req.
27336, June 13,
1991.
This was the
administrative stay of the wood preserving rules, which the Board
adopted in R91-1.
Section 724.930
Process Vents
This and the following Sections are drawn from 40 CFR
264.1030, et seq., which were amended at 56 Fed. Req.
19290.
This is the corrections to the process vent rules, which the
128—4 17
28
Board adopted in R90-11.
The USEPA corrections came too late for
the Board to consider them in R90—11.
However, the Board
identified most of the errors,
.
and corrected them on its own
motion.
In the following discussion, the Board will mention only
the errors listed in the Federal Register which require
correction in the Board rules.
Section 724.930 et seq. are drawn from 40 CFR 264.1030 et
seq.
The numbering of these Sections does not follow the general
scheme for translating Board and USEPA numbers.
In these
Section~, “264. lOxx” becomes “724.9xx”.
In the introduction to Section 724.930(b),
a cross reference
has been changed as follows:
“Sections 724.934(d) and
724.035(e)”, such that the reference is now to subsections of the
same Section.
Section 724.935
In Section 724.935(b) (4) (B), a comma has been inserted.
PART 725:
INTERIM STATUS STANDARDS FOR HWN FACILITIES
This Part contains the standards for HWM units on facilities
which do not have a permit.
Standards for permitted facilities
are in Part 724.
Indeed,
Parts 724 and 725 are identical in most
respects.
Section 725.113
This Section is drawn from 40 ~FR 265.13, which was amended
at 56 Fed. Reg.
19290, April 26,
1991.
This Section, and most of
the following Sections, are again the corrections to the process
vent rules adopted in R90-11.
The Board made most of these
corrections independently in R90-11.
Unless otherwise stated,
the changes to this Part are from the process vent corrections.
Only those corrections requiring
a change in the Board rules will
be discussed here.
In Section 725.113(b) (6), a reference to “725.293” has been
changed to “725.300”.
Section 725.173
In Section 725.273(b) (3), a reference to “725.293” has been
changed to “725.300”.
Section 725.212
This Section is drawn from 40 CFR 265.112, which was amended
at 56 Fed. Req.
7206, February 21,
1991,
and corrected at 56 Fed.
Reg.
42511, August 27,
1991.
This is the BIF rules and second
128—418
29
correction.
The first sentence of 40 CFR 265.112(a)
is amended as
follows:
By May 19.
1981. or by six months after the effective
date of the rule that first subiects a facility to
provisions of this Section, tThe owner or operator of a
hazardous waste management facility must have a written
closure plan.
The immediate effect of this change is to require newly regulated
BIFs to have a closure plan within six months after the effective
date of the BIF rules.
However, there are three possible
problems.
The first problem stems from the general way in which the
rule is stated.
To the extent this is .the proper place for the
“six months after the effective date” provision,
it appears to be
a retroactive requirement for any newly regulated HWM units since
1981.
The Board has proposed to follow this language, but
solicits comment.
Second, the USEPA rule refers to “the effective date” of the
new rule.
If the Board adopts the verbatim text,
the State rule
will wind up referencing the State adoption date.
The Board has
proposed to do so, but solicits comment as to whether USEPA
intends the State to reference the earlier USEPA effective date.
Third,
in originally adopting an equivalent to the rule, the
Board omitted the “May 19,
1981” date,
since it had already
passed.
Rather, the State rule required immediate notification
by everybody.
The Board has not proposed to add the date at this
time.
The language proposed by the Board
in Section 725.212(a)
is
as follows:
Within six months after the effective date of the rule
that first subiects
a facility to provisions of this
Section, t~heowner or operator of a hazardous waste
management facility shall have a written closure. plan.
The next USEPA amendment concerns 40 CFR 265.112 (d) (1) and
(2)
725.212(d)(1)
and
(2).
This adds notification of closure
requirements for BIFs.
40 CFR 265.112(d) (1),
as amended, consists of six sentences.
It is virtually impossible to understand the changes to this
dense block of text.
The Board has therefore proposed to break
out six subsections, labeled
(d) (1) (A)
—
(F), each corresponding
with a sentence.
The USEPA amendments involve the addition- of
128—419
30
(B)
and
(E), and minor changes to the other provisions.
The
proposed text is as follows:
d)
Notification of partial closure and final closure.
1)
When notice is required.
~j
The owner or operator shall submit the
closure plan to the Agency at least 180 days
prior to the date on which the owner or
operator expects to begin closure of the
first surface impoundment, waste pile,
land
treatment or landfill unit,
or final closure
of a facility withif it involves such a unit
whichever is earlier.
~
The owner or operator shall submit the
closure plan to the Ac~encyat least 45 days
prior to the date on which the owner or
operator expects to beam
partial or final
closure of a boiler or industrial furnace.
~çj
The owner or operator shall submit the
closure plan to the Agency at least 45 days
prior to the date on which the owner or
operator expects to begin, final closure of a
facility with only tanks, container storage
or incinerator units.
P1
Owners or operators with approved closure
plans shall notify the Agency in writing at
least 60 days prior to the date on which the
owner or operator expects to begin closure of
a surface impoundment, waste pile,
landfill
or land treatment unit,
or final closure of
a
facility involving such
a unit.
~j
Owners or operators with approved closure
plans shall notify the Agency in writing at
least 45 days prior to the date on which the
owner or operator expects to begin partial or
final closure of a boiler or industrial
furnace.
fi
Owners and operators with approved closure
plans shall notify the Agency in writing at
least 45 days prior to the date on which the
owner or operator expects to begin final
closure of a facility with only tanks,
container storage or incinerator units.
USEPA also adopted extensive revisions to 40 CFR
128—420
31
265.112(d) (2) with the BIF rules.
However, the original language
was restored with the August 27 corrections.
Comparison of the language of 40 CFR 265.112(d) (2) with
Section 725.212(d) (2) has disclosed an error which the Board
apparently made in adopting this subsection.
In
(d) (2) (B),
“final known volume” should read “known final volume”.
The Board
has proposed to correct this.
There are’several minor problems with the USEPA language in
40 CFR ~65.112(d)(2) which the Board corrected on original
adoption of its equivalent.
These have not been corrected in the
USEPA version.
The Board will retain its version.
These include
USEPA’s use of “can demonstrate” for “demonstrates”,
and “the
operator
...
can demonstrate
.
..
and he has taken”.
Section 725.213
This Section is drawn from 40 CFR 265.113, which was also
amended with the BIF rules and the August 27,
1991, BIF
corrections.
USEPA adopted extensive changes to the introductory
paragraphs to 40 CFR 265.113(a)
and
(b), but restored the
original language in the correction.
The net result
is no
change, except for correction of a minor typo in the Board’s
text.
Section 725.440
This Section is drawn from 40 CFR 265.340, which was also
amended with the BIF rules.
This is the introduction to the
applicability Section for interim status incinerators.
The
language has been revised along the lines discussed above for
Section 724.440.
The incinerator rules now depend on the
definition of “incinerator” for their applicability, and BIFs are
regulated under Part 726.
Section 725.470
This Section is drawn from 40 CFR 265.370, which was amended
with the July 17,
1991,
BIF corrections.
This is the
introduction to the Subpart governing “other thermal treatment”.
The amendment is as follows:
The regulations in this Subpart apply to owners and
operators of facilities that thermally treat hazardous
waste in devices other than enclosed devices using
controlled flame combustion except, as Section 725.101
provides otherwise.
Thermal treatment in enclosed
devices using controlled flame combustion is subject to
the requirements of Subpart 0 if the unit is an
incinerator, and 35
Ill. Adm. Code 726.Subpart H,
if
the unit is a boiler or industrial furnace as defined
128—42 1
32
in 35 Ill.
Adm. Code 720.110.
Section 725.543
Not amended
This Section is drawn from 40 CFR 265.443, which was amended
at 56 Fed. Req. 27336, June 13,
1991.
This is the stay of the
wood preserving
rules,
which the Board acted on in R91—1.
Section 725.930
Process Vents
Th’is and the following Sections are drawn from 40 CFR
265.1030, et seq., which were amended at 56 Fed. Reg.
19290.
This
is the corrections to the process vent rules, which the
Board adopted in R90-11.
The USEPA corrections came too late for
the Board to consider them in R90—11.
However, the Board
identIfied most of the errors, and corrected them on its own
motion.
In the following discussion, the Board will mention only
the errors listed in the Federal Register which require
correction in the Board rules.
Section 725.934
Not amended
The USEPA corrections include a correction to
a
cross
reference in 40 CFR 265.1034(c)(1)(vi)
725.934(c)(1)(Ffl.
The
Board has proposed no change,
in that the correction appears to
have been made.
However, the instructions are sufficiently vague
that one might take a second look.
Section 725.935
The Board has inserted a comma after “Records” in Section
725.935(b) (4) (B)
Section 725.952
The Board has corrected
a cross reference in Section
725.952(e) (3)
as follows:
“(a)(2)(e)(2)”
PART
726:
MANAGEMENT STANDARDS FOR SPECIFIC TYPES
OF
HAZARDOUS
WASTE
AND
FACILITIES
This Subpart sets management standards for specific types of
hazardous waste and specific types of facilities.
The existing
standards include Subparts for certain types of recycling,
including used batteries and precious metals recovery, and for
used oil.
The major change, which is the major change in this
Docket, concerns standards for burning hazardous waste in boilers
and industrial
furnaces
(BIFs).
Existinq Subpart D is replaced
by
a
new Subpart H.
SUBPART
B:
HAZARDOUS
WASTE
BURNED
FOR
ENERGY
RECOVERY
128—422
33
This Subpart was adopted in R85-22.
It is being repealed
and replaced by new Subpart
H.
Section 726.136 was previously repealed in R90-11.
SUBPART H:
HAZARDOUS
WASTE BURNED IN BIFs
This new Subpart is drawn from 40 CFR 266,
Subpart H, which
was adopted at 56 Fed. Req.
7206, February 21,
1991.
It sets new
standards for burning hazardous waste in BIFs.
The USEPA rules were the subject of three corrections which
occurred outside the normal batch period of this update Docket.
The corrections were at 56 Fed. Reg.
32688, July 17,
1991;
56
Fed. Req.
42511, August 27,
1991;
and 56 Fed. Req 43877,
September
5,
1991.
In initially reviewing the rules, the Board
staff observed a large number of apparent errors in the USEPA
February 21 rules.
Rather than undertake an independent review
of these rules,
the Board has decided to incorporate the
corrections into this Docket.
However, this has resulted in a
substantial delay.
Before proceeding into a Section—by—Section discussion of
the
proposal,
the
Board
will
first
set forth a general discussion
of
the
types
of changes the Board has made at multiple points to
the corrected USEPA rules.
A general discussion of the types of
changes
the Board makes appears in the general introduction to
this
Opinion.
Definitions
The
USEPA
rules
use
a
large
number
of acronyms sporadically.
The
Board
has
consolidated
all
of the acronym definitions into
Section
726.200(g),
and used them throughout.
The USEPA rules also include a number of terms related to
monitoring
(such
as
“hourly
rolling
average”).
These are
repeatedly redefined in the rules
(with substantially the same
definition).
These redef.initions occur at the 5th or 6th level
of subdivision, beyond the level allowed by the Administrative
Code.
Therefore,
to retain the definitions in situ,
the Board
would have to collapse the subparaqraphs into a dense block of
text, which would be unintelligible.
The Board has instead
consolidated these definitions in Section 726.200(g)
also.
However, there is a chance that the rules really need the
continued redefinitions.
The Board solicits comment.
Shall,
Must,
Will and May
The Board has generally edited the USEPA text to establish a
uniform usage for shall, must,
will, may and related words.
The-
wording
of
some
of the USEPA provisions is wrong when translated
128—423
34
into State rules, mainly because
a different agency issues
permits.
As is discussed in previous Opinions,
it
is
far
simpler
to establish a uniform usage for these terms, rather than debate
whether each occurrence is correct.
In making these changes, the
Board intends to translate the USEPA rules into the Illinois two-
agency context, using the terms as defined.
The Board does not
intend to make any substantive changes in the USEPA rules.
The USEPA rules are not necessarily wrong in these word
usages.
The Board has established special, self—consistent,
usages in these rules to simplify the process of translation.
The Board has used “shall” when the subject of the sentence
has to do some action if the stated condition obtains.
For
example,
“The operator shall fill out the form...”
The Board has
used “must” where an action is required, but not by the subject
of
the
sentence.
For
example:
“The form must be filled out...”
The
major
change
is
“will”
to
“shall”.
The
USEPA
rules’
are
written
as neutral statements of future intent by the permit
writer.
For
example:
“USEPA)
will issue a permit ‘if...”
In
the
two—agency context, this becomes:
“The Agency shall, issue a
permit
if...”
The
USEPA
rules contain many occurrences of
“may”.
The
Board has attempted to restrict these to situations in which the
operator (or Agency) has an option to do the stated action or not
do it.
For
example,
“The
operator
may apply for an alternative
standard...”
Or,
“The Agency may initiate enforcement...”
A few USEPA rules specify an option in which the operator
has
to
do
one
of
two
things.
For
example:
“The
operator
may
do
A
or
B.
The
operator
may
do
A;
or
the
operator
may
do
B”.
The
problem
with
this
wording is that,
as “may”
is defined above,
it
would leave open the possibility that the operator could also do
C or D.
These have been worded as follows:
“The operator shall
do
either
A
or
B.
The
operator
shall
do
A;
or
the
operator
shall do B”.
The USEPA rules contain many occurrences of “may not”.
For
example, “The operator may not despoil the environment.”
The
Board has generally changed these to “shall not”.
Another repeated use of “may”
is in provisions which say
“evidence of X may be ‘information’ justifying modification or
revocation
...
of a permit...”
The Board construes “may” in this
situation as meaning that the State may or may not initiate
action to modify or revoke the permit.
How the Agency decides
this is governed by 35 Ill. Adm. Code 703.270 et seq.
However,
the information either
is or is not sufficient grounds.
If it
“is not” there would be a non—rule.
The Board therefore
concludes that the USEPA rule means “is”,
and has used “is”.
128—424
35
“State
Director”
The USEPA rules generally specify that the “State Director”
is to make decisions.
The Board has given the factors it
considers in deciding whether a decision ought to be made by the
Board or.Agency in the general introduction to this Opinion.
Almost all of the decisions in this Subpart are appropriate as
Agency permit decisions.
The Board has therefore generally
changed “State Director” to “Agency”.
The USEPA rules include
some other aphorisms, such as “permit writer” and “permit
authority”, which have also been changed to “Agency”.
There is one occurrence of “Regional Administrator” Section
726.204(a) (2),
which, as is discussed below,
raises a question
as to whether USEPA intends to retain partial administrative
oversight.
At the opposite extreme, some of the USEPA rules
appear
to
leave
no
room
for
USEPA
action
prior
to
authorization
40
CFR
266.103(c)
(7) (ii).
“RCRA
Operating
Permit”
The
USEPA
rules
contain many occurrences of the phrase “RCRA
operating permit”.
This is a new term,
whose meaning we do not
know.
USEPA corrected-some of these to
“RCRA permit” at 56 Fed.
Reg.
43877.
The
Board has attempted to correct all of them,
on
the
assumption
that
they are all in error.
It is possible that
USEPA
means
to
be distinguishing the RCRA trial burn
authorizations
from
the
actual
RCRA. permit.
In
this
case
there
may
need
to
be
some
definitions
added.
“Particulate
Matter
Standard”
The
USEPA
rules include standards for particulate matter.
This
is
sometimes
abbreviated
“PM”.
The
Board
has
used
the
acronym uniformly throughout the Subpart.
USEPA sometimes apparently abbreviates “particulate matter
standard” as “particulate standard”.
The Board believes this
refers to the same thing, and has used “PM standard” throughout.
Format
for
Formulas
and
Exponents
The
USEPA
rules
have
several
formulas which make extensive
use
of
Greek
letters,
subscripts
and
a
multi—line format.
These
violate Administrative Code format requirements.
Moreover, it is
nearly impossible to get these to consistently print right,
and
impossible to get them right
in the printed versions of the rules
published by the Agency and Secretary of State.
This is
adequately demonstrated by USEPA’s efforts to correct the
formulas in the Federal Register.
USEPA is introducing new
errors at a rate which is approximately equal to the rate of
128—425
36
correction.
Rather than fight this battle,
the Board has rewritten all
of
the
formulas
to
eliminate
all
subscripts.
Mostly this is just
by
dropping
unnecessary
subscripts.
For
example,
“W~” and
“W,,”
become
“0”
and
“I”.
Another type of subscript is indicating
indexes
for
summation.
This is related to the “E” notation for indicating
summatipn.
The Board has replaced this with “SUM(Xi)”,
a
notation commonly used in computer programming, which is defined
with each formula.
Indices have simply been pl’aced on the same
line as the variable.
Parameters for summing are always the
same:
i
=
1 to n.
These have been moved into the definition of
“SUM”.
This avoids alignment problems which always crop up.
A
similar
alignment
problem occurs with the use of a
horizontal line to indicate division.
The Board has rearranged
the formulas so as to use
“/“
to indicate division.
The Board has had a longstanding problem with how to write,
in compliance with Code Division requirements, numbers in rules
using scientific notation
(for example, 6.3x108).
In one format
the
Board
has
used
in
past
rulemakings,
this
would
be
written
as
“6.3E-08”,
the
form
in-which this would be written in many
programming languages.
This rule contains extensive numerical
tables
in
which
USEPA
has
itself
adopted
this
format.
The
Board
has proposed to follow this format.
In
a
few
instances,
USEPA
has
departed
from
the
“E”
convention.
The
Board
has
edited the text to uniformly follow
this convention.
In
addition,
in
a
few
places
USEPA
has
inserted
an
“x”
(for
“times”),
which
the
Board
has deleted.
For example,
“6.3xE—08”
has been rendered as “6.3E-08”.
Certification
of
Precompliance
40
CFR
266.103(b)
is
an
enormous
subsection
which
required
operators to file a “certification of precompliance” with USEPA
by August 21,
1991.
The time for compliance with this
requirement is already past.
Moreover,
it appears to have no
future impact.
(For example, there appears to be no requirement
that new facilities go through the precompliance step.)
The
Board has therefore proposed
in
Section 726.203(b)) to simply
reference the certification of precompliance to USEPA.
In other
words, the Board will not require a separate certification to the
Agency.
Extensions of Time
40 CFR 266.103(c) requires a certification of compliance by
August 21,
1992.
The Board has proposed to adopt these
128—426
37
requirements,
which
will
still
have
a
future
impact
at
the
time
the Board adopts them.
This will mean that facilities will have
to certify compliance both to USEPA and the Agency (unless USEPA
authorizes Illinois to administer these rules before August).
This duplicate certification appears to be mandated by Sections
7.2 and 22.4(a)
of the Act.
40 CFR 266.103(c) (7)
(ii)
allows an extension of time for the
certification of compliance.
This rather large subsection starts
near the maxiin~unnumber of levels of subdivision allowed under
the Administrative Code.
If it were kept at its USEPA location,
it would collapse into a dense block, and be unreadable.
The
Board has therefore moved it out to Section 726.219.
A
cross
reference remains at Section 726.203(c) (7) (B).
It’s rather unlikely that USEPA will authorize these rules
before August,
1992.
This will mean that a dual federal/State
regulatory system will still be in place.
It would therefore
require both a State and federal extension to miss this date~ An
alternative approach would deem the State date extended
if— USEPA
grants an extension.
However, the USEPA rule, as written, allows
only State extensions.
The Board solicits comment on this
possible error in the USEPA rules.
Existing Boiler Determinations
The BIF rules replace earlier rules adopted by the Board in
R85—22.
These include the “boiler determination” procedures of
35
Ill. Adm. Code 720.132.
This is apparently unaffected by the
new
USEPA
rules.
There
would
still
be
a
possibility
that
a
person could make application for a “boiler determination”.
However, the effect of that determination would now be to place
the unit into the new BIF rules.
The boiler and related determinations may need updating to
reflect the new generic adjusted standards procedures.
The Board
solicits comment as to whether it ought to undertake this in this
Docket.
Total Chlorine and Chloride
The
USEPA
rules
make
frequent
reference,
to
“total
chlorine
and
chloride”
and
to
“total
chloride
and chlorine”.
The Board
believes
that
these
are
all
referring
to the same thing,
and that
the former is correct.
Section-by—Section Discussion of BIF Rules
Section 726.200
This Section is drawn from 40 CFR 266.100, which was adopted
at 56 Fed. Reg.
32688,
February 21,
1991.
The Section was
128—43 7
38
corrected at:
56 Fed. Req.
32688, July 17,
1991;
56 Fed. Req.
42511,
August
27,
1991;
and
56
Fed.
Req
43877,
September
5,
1991.
This Section is the introduction to the BIF rules.
This
Subpart applies to boilers and industrial furnaces
,(“BIFs”)
burning hazardous waste for energy recovery or destruction, or
processing for materials recovery or as an ingredient.
The basic
applicability terms are defined in Part 720 above.
Th~September
5 USEPA action added a “Note” to Section
726.200(a).
This grants a stay of the applicability to coke
ovens processing coke oven by-products exhibiting the toxicity
characteristic.
The USEPA stay will terminate when USEPA removes
the “Note” from its rules.
This eliminates possible problems
discussed in R91-1 in connection with similar stays.
The Board
stay will terminate when the Board removes the note from its
rules, which will occur
in the normal update process within one
year after USEPA removes its note.
As is discussed in general above, the Board has added
Section 726.200(g).
This is a collection of abbreviations and
definitions implied by, but not stated in, the USEPA rules.
The first type of definition is acronyms, most of which are
repeatedly defined at scattered locations in the USEPA rules.
These include the following widely used acronyms which will also
be used in the Opinion:
“BIF” means boiler or industrial furnace.
“CO”
means
carbon
monoxide.
“DRE” means destruction or removal efficiency.
“HC” means hydrocarbon.
“HCl” means hydrogen chloride gas.
“MEl” means maximum exposed individual.
“MEl location” means the point with the maximum
annual average off—site (unless on-site is
required)
ground
level
concentration.
“PlC” means product of incomplete combustion.
“PM” means particulate matter.
“POHC” means principal organic hazardous
constituent.
128—428
39
“RAC”
means
reference
air concentration, the
acceptable ambient level for the noncarcinogenic
metals for purposes of this Subpart.
RACs are
specified in Appendix D.
“RSD” means risk—speci~ficdose,
the acceptable
ambient level for the carcinogenic metals for
purposes of this Subpart.
RSDs are specified in
Appendix E.
“TESH”
means
terrain—adjusted
effective
stack
height.
The Board has added additional explanation and cross—
references for the definitions of “RAC” and “RSD”.
These are
taken
from
40 CFR 266.106(d) (2).
The term “MEl”
(“maximum exposed individual”)
is used in
Section 726.204(e).
Several documents are referenced in that
Section.
The Board solicits comment as to whether there might be
a definition of this term in one of those references,
or
somewhere else.
The second type of definition is drawn from air monitoring
rules.
These definitions are repeated numerous times with
specific monitoring provisions.
The Board has collected them
into this definition set to shorten the rules,
and to avoid
problems which would arise because USEPA has defined these at a
level of subdivision beyond what the Board can use in the
Administrative Code.
These definitions are as follow:
“Continuous monitor”
is a monitor which
continuously
samples
the
regulated
parameter
without interruption, and evaluates the detector
response
at
least
once
each
15 seconds, and
computes and records the average value at least
every
60 seconds.
“One hour block average” means the arithmetic mean
of the one minute averages recorded during the 60-
minute period beginning at one minute after the
beginning
of preceding clock hour
“Rolling average for the selected averaging
period” means the arithmetic mean of one hour
block averages for the averaging period.
Some of these definitions were modified in the corrections
listed above.
The Board has reviewed the USEPA rules,
and does not see any
reason
why
these
should
not
be
made Subpart definitions.
For
128—429
40
example,
it
does
not
appear
that
USEPA
is
using
the
same, terms
in
a different sense in other portions of the Subpart.
However, the
Board solicits comment.
Related to the air monitoring definitions is the term “feed
rate”.
This
appears
to
be
measured
as
specified
in
Section
726.202(e)(6).
The Board has placed a cross reference in the
definition.
US~PAalso has a repeated definition of “good engineering
practice stack height”:
“Good engineering practice stack height” is as
defined by 40 CFR 51.100(u)
The Board has incorporated this by reference in 35 Ill.
Adm. Code
720.111.
The “51.100(u)”
is unusual, but correct.
This is from
a long list of lettered definitions.
51.100(u)
follows
51.100(aa),
et seq.
It
is hard to find near 51.100(hh) (1) (ii).
The USEPA rules make frequent reference to “Tiers”
I,
II and
III.
These appear to be defined by Section 726.206(b),
(c) and
(d).
The Board has defined the terms by reference to those
Sections,
but solicits comment.
The USEPA rules make frequent reference to “carcinogenic
metals” and “noncarcinogenic metals”, which are parenthetically
defined.
The Board has proposed to move these definitions to
this Section, as follows:
“Carcinogenic metals” means arsenic, beryllium,
cadmium
and chromium.
“Noncarcinogenic metals” means antimony, barium,
lead,
mercury, thallium and silver.
With respect to metals, the USEPA rules are clear that they
are defining these terms
in this manner.
In particular,
it would
not make any regulatory difference if subsequent research shifted
some metals from the “noncarcinogenic” to the “carcinogenic”
category.
The ways the rules are written, the standards and
methods for addressing these metals would remain the same (until
USEPA amended the rules).
With respect to the nonmetals,
however, the term “carcinogenic” is used in a different sense.
For
example,
see Section 626.204(f)(3)(D)
In this situation,
the rules appear to mean “in fact carcinogenic”.
Moreover, there
is no definition of “carcinogenic”, or procedures for such
determination.
The way the rules are drafted, they appear to imply that the
Agency must make a case—by—case determination of carcinoqenicity
(of nonmetals)
in the context of each permit application.
If
128—430
41
there
is
a
list
(or
definition
or
procedure)
which
is
dispositive
of “carcinogenicity”,
it needs to be referenced into the rules.
The Board solicits comment on this.
Another term which is used without explicit definition is
“toxicity equivalent”.
The definition is implied by 40 CFR
266.104(e) (2).
The Board has added the following definition,
referencing the equivalent Board rule:
“Ioxicity equivalence” is estimated, pursuant to
Section 726.204(e), using “Procedures for Estimating
the Toxicity Equivalence of Chlorinated Dibenzo-p-
Dioxin and Dibenzofuran Conqeners” in Appendix I
(“eye”)
This term is used in 40 CFR 266.103(c) (4) (ii) (B)
726.203(c)
(4) (B) (ii),
prior to the implied definition.
Section 726.201
Management prior to burning
This Section is drawn from 40 CFR 266.101, which was adopted
at 56 -Fed. Reg. 7206, February 21,’ 1991.
This specifies which
portions of the generator,
transporter and storage facility rules
apply prior to burning in a BIF.
40 CFR 266.101(c) provides that “operators of facilities
that store hazardous waste that is burned in a
BIF
are subject
to the applicable provisions of subparts A through L of p.art
264...”
Although the Board proposal tracks this language, there
is a question as to whether USEPA is saying what it means here.
As worded, the USEPA rule could be construed as granting an
exemption from,
for example, the landfill standards in Subpart N,
to a facility with both a BIF unit and a landfill.
The Board
solicits comment on this.
Section 726.202
Permit standards for burners
This Section is drawn from 40 CFR 266.102, which was adopted
at 56 Fed. Req.
7206,
February 21,
1991.
The Section was also
subject to correction at 56 Fed. Req.
32688, July 17,
1991 and 56
Fed. Req.
42511, August 27,
1991.
40 CFR 266.102(a) (2) (vii) provides that “States and the
Federal government” are exempt from the financial assurance
requirement.
The Board has proposed to render this as “the State
of Illinois and the federal government” are exempt.
40 CFR 266.102(b)(1)
726.202(b)(1))
governs waste analysis.
It is worded as follows:
This analysis will be used to provide all information
required by this subpart and
...
and to enable the
128—431
42
permit writer to prescribe such permit conditions as
necessary to protect human health and the environment.
This can be shortened and made clearer,
as follows:
This analysis must provide all information required by
this Subpart and 35 Iii. Adm. Code 7-03
•
208 and 703.232
and must
enable
the
Agency
to
prescribe
such
permit
conditions.as necessary to protect human health and the
environment.
The analysis must “provide all information
...
to enable the
Agency to prescribe such permit conditions as necessary to
protect human health and the environment”.
The analysis may be
submitted with the Part B application, or for certain facilities,
as a portion of a trial burn plan which “may be submitted before
the Part B application”.
This appears to be a true option
residing with the operator.
40 CFR 266.102(b) (1) also refers to “other analysis required
by the Agency”.
The criterion for whether the Agency can require
the additional analysis appears to be whether the information is
necessary for it to write conditions “necessary to protect human
health and the environment”.
40 CFR 266. 102(c)
726.202(c)
requires the operator to
comply with the emissions standards in the following Sections.
In Illinois, should the operator be required to comply with the
emissions standards in 35 Ill.
Adm. Code 212 et seq., which are
derived from the Clean Air Act?
Should those standards also be
referenced?
The Board solicits comment.
40 CFR 266. 102(e) (1)
726.202(e)
(1)
appears to have a typo
which USEPA has not yet corrected.
A BIF must be operated in
accordance with the rules “at all times where there
is hazardous
waste in the unit”.
USEPA probably means “when”, which the Board
has used.
40 CFR 266.102(e)(2)(i)
726.202(e)(2)(A)
also appears to
have a typo,
although it is not altogether clear how to fix it.
The provision reads:
Operating conditions will be specified either:
on a
case—by—case basis for each hazardous waste burned as
those demonstrated
(in a trial burn or
or...
The “as those” appears to be incorrect.
However, it is not
obvious how to fix this sentence.
40 CFR 266.102(e) (3) (ii) and
(iii)
provide that,
for certain
types of facilities,
“permit conditions to ensure compliance with
the
PM
standard shall not” be in the permit (for facilities
128—432
43
exempt from the PM standard).
Consistent with the general
discussion above on the use of “shall” and “must”, the Board has
edited this to “must not”.
726.202(e)(3)(A)
and
(B))
Either
way, the language seems rather strong.
40 CFR 266.102(e)(5)(i)(A)
726.202(e)(5)(A)(i))
appears to
have a typo which USEPA has not yet corrected.
“Total chloride
and chlorine” should probably read “total chlorine and chloride”.
40 CFR 26~.102(e)(6)(i)(B)contains definitions which have
been nio~iedto Section 726.200(g).
The definitions were the
subject of the corrections listed above.
40 CFR 266.102(e) (6) (i) (B) also appears to have a definition
of “carcinogenic metals”.
This has been moved to Section
726.200(g).
40 CFR 266.102(e) (6) (iv) (B)
726.202(e)
(6) (D) (ii))
includes
a possible typo which USEPA has not yet corrected.
The rule
provides that “the facility must operate under trial burn
conditions...”
This probably should read “unit”.
The Board has
proposed to follow the latter wording.
40 CFR 266.102(e) (6) (iv) (B) requires the unit to reach
steady-state
operations
before
testing.
It
includes
the
following proviso:
The Director
may
determine, however, that industrial
furnaces that recycle collected particulate matter back
into the furnace and that comply with an alternative
implementation approach for metals under
§ 266.106(f),
need not reach steady state conditions with respect to
the flow of metals in the system prior to beginning
compliance testing for metals emissions.
As
written this appears to allow the State the option of
either
making the determination or not making it, with no criterion for
deciding whether to make the determination.
This is probably not
what USEPA meant
(if an operator asks for a determination, he has
a right to a yes or no answer).
The Board assumes that the “may”
means that the operator under the alternative approach has the
option of testing before reaching steady-sta’~e,or after.
This
leaves open the question of whether prior approval needs to be
given.
The Board believes that the approval should come pursuant
to the referenced 40 CFR 266.106(f)
726.206(f)),
rather than
this Section.
The Board has therefore worded this as:
However,
industrial furnaces that recycle collected PM
back into the furnace and that comply with an
alternative implementation approach for metals under
Section 726.206(f) need not reach steady state
conditions with respect to the flow of metals in the
128—433
44
system prior to beginning compliance testing for metals
emissions.
40
CFR
266.102(e)(7)(ii)
726.202(e)(7)(B))
specifies
general requirements for automatic waste feed cutoff.
The
introduction authorizes the State to limit the number of cutoffs
during any operating period, as follows:
A boiler or industrial furnace must be operated with a
fu,nctioning system that automatically cuts off the
hazardous waste feed when operating conditions deviate
from those established under this section. The Director
may limit the number of cutoffs per an operating period
on a case—by—case basis.
Following this introduction are three other types of conditions
concerning waste feed cutoffs.
For example, the State is to
specify minimum combustion temperature and residence times, etc.
The problem with the quoted language is that it does not give any
criterion by which the State decides whether to limit the number
of cutoffs, or any criterion for deciding what the appropriate
number should be.
The Board has therefore not proposed to allow
such limits, but solicits comment.
Any co~nmentersseeking limits
need to provide the appropriate criteria.
40 CFR 266.102(e)(7)(iii)
726.202(e)(7)(C)
reads as
follows:
A
BIF
must cease burning hazardous waste when changes
in combustion properties,
or feed rates of the
hazardous waste, other fuels,
or industrial furnace
feedstocks, or changes in the
BIF)
design or operating
conditions deviate from the limits as specifi’ed in the
permit.
The permit should specify the combustion properties,
etc.
The BIF should cease burning when the combustion properties,
etc.
“deviate from” the permit limits.
It is not clear how “changes
in” the combustion properties could be specified in the permit,
or how the “changes in” could “deviate from”.6
The Board has
therefore proposed to delete the “changes in”,
so that Section
726.202(e) (7) (B)
reads as follows:
A BIF must cease burning hazardous waste when
combustion properties,
or feed rates of the hazardous
waste,
other fuels or industrial furnace feedstocks,
or
6Ordinarily
a
permit
would
specify
a
range
of
operating
conditions.
The “changes
in”
language may be
intended
to mean
“outside the specified range”.
However., this is taken care of by
the language of the permit condition itself.
128—434
45
the
BIF
design
or
operating
conditions
deviate
from
the
limits
as
specified
in
the
permit.
40 CFR 266.102(e)(8)(i)(C)
726.202(e)(8)(A)(iii))
requires
the operator to conduct sampling and analysis of waste,
fuel,
residue and exhaust,
“Upon the request of the Director,
...
to
verify that the operating requirements established in the permit
achieve the applicable standards...”
The Board believes the “to
verify” phrase is a sufficient criterion for the exercise of this
authorijy.
In that this procedure would take place following the
issuance of the permit, the procedural context would either’be
Agency—initiated permit modification pursuant to Section 703.270
et seq.,
or as set out in the permit itself.
40 CFR 266.102(e)(8)(iv)
726.202(e)(8)(D)
requires weekly
inspections of cutoff systems unless the operator demonstrates to
the State that weekly inspections will “unduly restrict or upset
operations”,
in which case an alternative rate (greater than
monthly) must be used.
The criterion appears to be adequate to
allow.Agency action.
The procedural context would be in the
permit application, or an application by the operator to modify.
Section 726.203
Interim Status Standards for Burners
This Section is drawn from 40 CFR 266.103, which was adopted
at 56 Fed.
Reg.
7206, February 21,
1991,
and corrected as listed
above.
It establishes “interim status standards” for existing
BIF5 pending issuance of a RCRA permit.
40 CFR 266.103(a)(1)(ii)
726.203(a)(1)(B)
defines
“existing” facility.
This includes facilities which have
“commenced construction”.
This,
in turn,
is conditioned on
operator having obtained “the Federal, State and local approvals
or permits necessary to begin physical construction”.
The Board
solicits comment as to the identity of any specific such
approvals required in Illinois for BIF5.
40 CFR 266.103(a)(1)(iii)
726.203(a)(l)(C)
reads as
follows:
If a
BIF
is located at a facility that already has a
permit or interim status, then the facility must comply
with the applicable regulations dealing with permit
modifications
...
or changes in interim status in
As the Board construes this,
it is referring to a facility
with a “RCRA permit or interim status”.
The common example of
this would be a facility which has a hazardous waste management
unit, other than the BIF, for which it already has a permit or
interim status.
Such a facility has to proceed by way of
modification of the facility permit,
instead of by the initial
application procedures generally specified.
Actually,
it is the
128—435
46
“owner or operator” which has to proceed, rather than the
inanimate facility.
The Board has proposed the following
language in Section 726.203(a) (1) (C):
If a BIF is located at a facility that already has a
RCRA permit or interim status, then the owner or
operator shall comply with the applicable regulations
dealing with permit modifications in
35 Ill. Adm. Code
703.280 or changes in interim status in 35 Ill.
Adm.
Code 703.155.
40 CFR 266.103 (a) (5) (i) (D)
includes a reference to the
“hydrocarbon controls of § 266.104(c)”.
This reference appears
to be wrong.
In Section 726. 203 (a) (5) (A) (iv),
the Board has
proposed to reference Section 726.204(f)
266.104(f),
but
solicits comment.
40
CFR
266.103(b)
governs
the
“certification
of
precompliance” requirement for interim status.
As is discussed
in general above, the Board has proposed to merely reference the
USEPA rules into Section 726.203(b).
The certification of
precompliance was due on August 21,
1991, which has already
passed.
The Board solicits comment as to whether there is any
continuing need for these provisions in the Board rules.
If so,
should the Board adopt-the verbatim text,
or merely continue the
incorporation by reference, with additional bridging text?
The USEPA rules appear to have a major substantive error.
As is explained at
56 Fed. Reg.
7204, this is mainly a HSWA-
driven rulemaking.
Therefore, USEPA administers the rules in
authorized states pending authorization of the program component.
As written, the USEPA rules require the certification of
precoinpliance to be administered by the “State Director”.
However,
it is essentially impossible for states to have been
authorized
to
administer
these
rules
by
August
21,
1991.
Therefore, the State Director would not be able to administer the
rules.
Yet the USEPA rules do not allow the Regional
Administrator to administer these provisions.
The Board solicits
comment as to how these rules are supposed to’work.
40 CFR 266.103(c)
726.203(c)
governs the “certification of
compliance”, which
is generally due by August
21,
1992.
The
Board has proposed to adopt these rules.
This will mean that a
certification of compliance will have to be directed to IEPA.
These rules suffer from the same problems as 40 CFR 266.103 (b).
However,
if USEPA were to expect the certification to come to it
directly until the rules are authorized, there would be a dual
certification requirement in Illinois.
40 CFR 266.103(c) (1) requires the operator to establish
limits on certain parameters based on a compliance test.
The
operator notifies the State of these limits, which then function
128—436
47
as permit limits pending action by the State.
40 CFR
266.103(c) (1) (iii)
726.203(c)(.)(C)
reads as follows:
Total
feed
rate
of
chlorine
and
chloride
in
total
feed
streams;
As is discussed above, at other points in the rules, USEPA
refers to “total chlorine and chloride”, the term the Board has
proposed to use.
This however, puts three “totals” into this
provision.
The Board has left this, but solicits comment as to
whether’ some of the “totals”, need to be deleted.
Section
726.203(c) (1) (C)
reads as follows:
Total feed rate of total chlorine and chloride in total
feed streams;
40 CFR 266.103(c)(3)(ii)(B)
726.203(c)(3)(B)(ii)
governs
compliance testing for interim status facilities.
It requires
analysis for metals content to be sufficient to determine “if
changes in metals content may affect the ability of the facility
to meet the metals emissions standards.
.
.“
There are two
problems with this language.
First,
as “may”
is defined above,
“may affect” would seem to mean “may or may not affect”,
resulting in a non—rule.
The Board has proposed to change “may
affect” to “affect”, which seems to say what USEPA intended.
Second,
“facility” should probably be changed to “unit”,
since the emissions standards would apply to each unit on a
facility.
In 40 CFR 266.103(c) (4)
(ii)
(B),
USEPA
has
a
list
which
exceeds the four levels of subdivision allowed in the
Administrative Code.
The subsections have therefore been
collapsed into Section 726.203(c) (4) (B) (ii).
In 40 CFR 266.103 (c) (4) (ii) (B) (5)
726.2003(c)
(4) (B) (ii),
there is a reference to the “toxicity equivalency factor”.
The
implied definition is in Section 726.204(e) (2), which the Board
has referenced in the definitions
Section
726.200(b).
40 CFR 266.103(c) (4) (iv) (B) and
(C) also have excess levels
of subdivision.
However, the definitions have been moved to
Section 726.200(g), as discussed above.
The
header
for
40
CFR
266.103(c)
(4) (iv)
(D)
726.203(c)
(4) (D) (iv)
has a “total chloride and chlorine” which
the Board has corrected to “total chlorine and chloride”.
40 CFR 266.103(c)(4)(v)
726.103(c)(4)(E)
specifies the
form for the certificate of compliance.
The second paragraph of
the conditions refers to “operating conditions established in
this certification pursuant to
S 266.103(c) (4) (v)”.
There are
128—437
48
two minor problems with this wording.
First, the quoted Section
establishes “operating limits”, the phrase the Board has proposed
to use.
Second,
“in this certification” doesn’t seem to make any
sense at all.
The Board has proposed to omit it, so that the
provision reads:
I also acknowledge that the operating limits
established pursuant to 35
Ill. Adm. Code
726.203(c) (4) (D) are enforceable limits at which the
fapility can legally operate during interim status
until a revised certification of compliance is
submitted.
40 CFR 266.103(c)(5)
726.203(c)(5)
provides that “a
conditioned gas monitoring system may be used.
.
.“
for HC under
certain conditions.
This appears to be a true option which the
operator may exercise.
40 CFR 266.103(c) (7) (B). authorizes case—by—case extensions
for the compliance times for the certification of compliance.
The Board has proposed to move this to Section 726.219,
since it
exceeds the available levels of subdivision in the Administrative
Code,
and since it is potentially more complex at the State
level.
40 CFR• 266.103(h) governs fugitive -emissions at interim
status BIF5.
Subsection
(h) (3)
allows:
“An alternate means of
control that the owner or operator can demonstrate provide
fugitive emissions control equivalent” to negative pressure.
There are two problems with this language.
First,
the USEPA
language is subject to the interpretation that the operator can
unilaterally apply the alternate means if he believes he “can
demonstrate” equivalency.
The Board has dropped the “can” to
make it clear that the operator must actually make this
demonstration in the context of a permit application.
Second,
“provide” is not grammatically correct.
It should be either
“provides” or “to provide”.
The Board has proposed the former.
40 CFR 266.103(i)
includes the “changes in
...
deviate from”
language discussed above in connection Section 726.202(e) (7) (C).
The Board has deleted the “changes in” consistent with that
discussion.
40 CFR 266.103(j) (1) (1) has a “total chloride and chlorine”
which the Board has corrected in Section 726.203(j) (1) (A).
Section 726.204
Standards for Organic Emissions
This Section is drawn from’ 40 CFR 266.104, which was adopted
at 56 Fed.
Req.
7206, February 21,
1991.
The USEPA rule was also
corrected as noted above.
This Section sets a “destruction and
removal efficiency”
(“DRE”) standard for “principal organic
128—428
49
hazardous constituents”
(“POHCs”).
This is similar to Section
724.443, governing incinerators.
The formula in 40 CFR 266.104(a) (1) was corrected at 56 Fed.
Req. 32688.
As is discussed in general above, the Board has
further simplified the formula to avoid future errors.
40 CFR 266.104(a)(2)
726.204(a)(2)
governs the selection
of POHCs.
The Agency selects the POHCs based on the hazardous
constit)lents list in 35 Ill.
Adin.
Code 721.Appendix H
40
CFR
261, App. VIII
and the constituents present in the waste feed.
The Agency normally selects as POHC5 hazardous constituents which
are in the waste feed.
However, the subsection goes on to
provide:
However,
if the applicant demonstrates to the Regional
Administrator’s satisfaction that a compound not listed
in appendix VIII or not present in the normal waste
feed is a suitable indicator of compliance with the DRE
requirements of this section, that compound may be
designated as a POHC.
Such POHC5 need not be toxic or
organic compounds.
There are several potential problems with this language.
First,
the designation of alternate POHCs appears to be triggered only
on “application”.
This seems to mean that the permit writer
cannot add alternate POHC5 on his own initiative.
This would
foreclose regulation of toxic materials formed in the combustion
process, unless the process is initiated by the operator.
The
Board has proposed to follow this formulation, but solicits
comment.
The alternative would be to word this as “If the Agency
determines..
.“,
without necessarily requiring an application.
Second, while the USEPA rule is specific that the “State
Director” is supposed to make the basic POHC determination, the
rule is worded such that only the “Regional Administrator” can
designate alternate POHC5.
It is possible that USEPA intends
that the Regional Administrator should retain this authority.
However, there is no specific application process set up.
The
Board believes this
is an editorial error by USEPA, and that
USEPA intends to delegate this to the State also.
The Board has
therefore substituted “Agency” for “Regional Administrator”,
but
solicits comment.
Third, the applicant must make this demonstration “to the
Regional Administrator’s satisfaction”.
There are two problems
with this formulation.
It is worded:
as a subjective standard;
and as a personal decision by the Regional Administrator.
The
Board has reworded this to make it a collective decision by the
Agency, based on an objective standard.
As proposed, the
applicant would just “demonstrate to the Agency”.
128—439
50
Fourth, while normal POHC5 are both listed
and
present in
the feed,
the conditions for the alternative are worded as
alternatives:
“a compound not listed in appendix VIII or not
present in the normal waste feed”.
In other words, an
alternative could be:
an unlisted constituent which is in the
waste;
a listed constituent which is not in the feed;
or,
a
constituent which is neither listed nor in the feed.
This
appears to make sense,
and the Board has proposed to follow this
language, but solicits comment as to whether this is really what
is intended.
Fifth,
the
USEPA
rule
provides
that
the
alternative
“may
be”
designated as a POHC if the requirements are met.
The Board
believes that,
if the applicant makes the required showing, he is
entitled to the alternative POHC.
The Board has therefore worded
this as “must be”.
The language proposed by the Board in Section 726.204(a) (2)
is
as
follows:
However,
if the applicant demonstrates to the Agency
that a compound not listed in 35 Ill. Adm. Code
721.Appendix H or not present in the normal waste feed
is a suitable indicator of compliance with the DRE
requirements of this Section, that compound must be
designated as a POHC.
Such POHCs need not be toxic or
organic compounds.
40 CFR 266.104(c) (1) allows for an alternative CO standard.
It provides that emissions “may exceed” the 100 ppmv limit under
certain circumstances.
This appears to be a true option residing
in
the
operator.
40 CFR 266.104(f)
726.204(f)
allows an alternative HC
limit for furnaces with organic matter in raw material.
T)he
Director may establish an alternative HC limit on
a case—by—case basis
(under a part B permit proceeding)
at
a level that ensures that flue gas HC
(and CO)
concentrations when burning hazardous waste are not
greater than when not burning hazardous waste
(the
baseline HC level)
provided...
The
Board
has
rendered
this
as
the
“Agency
shall
establish
an alternative...”
If -the applicant makes the required showing,
he is entitled to the alternative.
40 CFR 266.104(f)(3)(iii)(A)
726.204(f)(3)(C)(i)
provides
that:
Sampling and analysis of organic emissions shall
be
conducted using procedures prescribed by the Director.
128—440
51
This
applies
to
the
alternative
HC
limit.
It
prescribes
sampling
and analysis to be conducted during a trial burn.
It is unclear
as to the procedural context in which the Director is to make
this determination.
The Board assumes a reference to new 40 CFR
270.22(a)
is intended.
This would be equivalent to 35 Iii. Adm.
Code 703.232(d).
The Board solicits comment as to whether this
is correct.
If it is not, commenters need to explain the
procedural context.
40 CFR 266.104(f) (3) (iv) (A) and
(B) make reference to the
“noncarcinogenic” and “carcinogenic” compounds in Appendix IV and
V Appendix
D and E.
As is discussed in general above,
the
Board solicits comment as to how one tells which are carcinogenic
and noncarcinogenic.
40 CFR 266.104(g)
provides that cement kilns “may comply”
with the CO and HC limits “by monitoring in the by-pass duct”
under certain conditions.
This appears to be a true option for
the operator.
Section 726.205
PM Standards
This
Section
is
drawn
from
40
CFR
266.105,
which
was
adopted
at 56 Fed. Req.
7206, February 21,
1991.
Section 726.206
Metals Standards
This Section is drawn from 40 CFR 266.106, which was adopted
at 56 Fed. Req.
7206,
February 21,
1991.
It was also corrected
as described above.
This Section specifies emissions standards
for metals.
40 CFR 266.106(b) (1)
deals with “noncarcinogenic metals”,
which are implicitly defined as “antimony,
barium,
lead, mercury,
thallium and silver”.
These have been defined in Section
726.200(g)
40 CFR 266.106(b) (1) (i) and
(ii)
726.206(b)(1)(A)
and
(B)
contain cross references to definitions of “hourly rolling
average”.
As is discussed in general above, the Board has, moved
these definitions to Section 726.200(g), which is cited here
also.
40 CFR 266.106(b) (2) deals with “carcinogenic metals”, which
are implicitly defined as “arsenic,
cadmium, beryllium and
chromium”.
These
have
been
defined
in
Section
726.200(g).
40 CFR 266.106(b) (2)
includes a formula which limits the
emissions of carcinogenic metals.
The Board has changed the
format of the formula along the lines discussed in general above.
The
proposal
reflects a substantive change to the formula which
12~—441
52
was made in the July 17 Federal Register correction
(““
to
“?“).
40 CFR 266.106(b)(3)
726.206(b)(3)
defines the “terrain
adjusted effective stack height”
(“TESH”).
The definition of the
acronym and “good engineering practice stack height” have been
moved to Section 726.200(g).
40 CFR 266.106(b)(3)(iii)
726.206(b)(3)(C)
reads as
follows:
It the TESH for a particular facility is not listed in
the table in the appendices, the nearest lower TESH
listed in the table shall be used.
If the TESH is four
meters or less,
a value of four meters shall be used.
There are several potential problems with this language.
The
first is the reference to “the appendices”.
The Board believes
this is a reference to Appendices I through III
A
through C,
the reference appearing in the proposal.
The second problem is the reference to “tables”.
This may
be prohibited under the Administrative Code,
since a “Table”
is a
portion of a rule which is different than an “Appendix”.
Third,
the
reference to a “particular facility” would lead
one to expect the “appendices” to list facilities by name.
This
is
not
the
case,
at least with Appendices
I
-
III
A
-
C.
Indeed,
these
do
not
contain
a listing of “TESHs” at all.
Rather,
it is a listing of “feed rates and emissions screening
limits” for various values of TESH.
The Board is unable to find
any tables in the Appendices which list TESH as the output.
Moreover, any such table would contradict the formula in 40 CFR
266.106(b) (3) (i)
726.206(b)
(3) (A)), which gives a value of TESH
based on physical stack height,
plume rise and terrain rise.
The
Board
therefore
believes
that
this
paragraph
is
totally
wrong.
One possibility, which the Board assumes to be the case,
is that
the
paragraph
is
telling
people
which
value
of
the
“feed
rates
and emissions screening limits” to use for various values of
TESH.7
The Board has redrafted 40 CFR 266.106(b) (3) (iii)
726.206(b)
(3) (C)
to read as follows, but solicits comment:
If the TESH calculated pursuant to subsection
(b) (3) (A)
is not listed in Appendices A
-
C, the values for the
nearest lower TESH listed in the table must be used.
If the TESH is four meters or less, a value based on
four meters must be used.
TThe other possibility, which the Board is not following,
is
that this paragraph is
a
relic from an earlier draft, which may
have had a table instead of the formula.
128—442
53
40 CFR 266.106(b) (6) gives a formula for the “worst case
stack” to be used for compliance purposes if there are multiple
stacks.
The proposal reflects major revisions in the July 17
correction.
40 CFR 266.106(b) (7)
specifies conditions under which
facilities must use stricter “Tier III” screening limits.
40 CFR
266.106(b)(7)(v)
f726.206(b)(7)(E).) requires “Tier III” limits
if:
The Director determines that standards based on site—
specific dispersion modeling are required.
This language is present in the proposal.
However, the Board
will delete it from the proposal unless commenters provide the
Board with meaningful criteria for this decision.
The Board
solicits comment as to the criteria.
40 CFR 266.106(d)
governs the “Tier III site—specific risk
assessment”.
40 CFR 266.106(d) (2)
726.206(d)
(2)
reference the
RAC5 and RSD5 of Appendices IV and V
D
and E.
These are
specified as “for purposes of thisrule”.
This is ambiguous.
The Board believes that “Subpart” is intended, and has used that
term
instead.
The formula in 40 CFR 266.106(d) (3) was corrected on July
17.
However,
in attempting to correct minor errors in
appearance,
USEPA has made a major error in the formula as
corrected.
This amply illustrates the futility of attempting to
write the formulas in this format.
40 CFR 266.106(e)
reads as follows:
Adjusted Tier I feed rate screening limits.
The owner
or operator may adjust the feed rate screening limits
provided by Appendix I
...
to account for site-specific
dispersion modeling.
Under this approach, the adjusted
feed rate screening limit for a metal
is determined by
back—calculating from the acceptable ambient levels
provided by Appendices IV and V
...
using dispersion
modeling to determine the maximum allowable emission
rate.
This emission rate becomes the adjusted Tier
I
feed rate screening limit.
The feed rate screening
limits for carcinogenic metals are implemented as
prescribed in paragraph (b)(2)...
The USEPA rule is ambiguous as to the procedural context for
this adjustment.
The Board believes ‘that this provision is
giving the operator an option to use alternative calculations in
filing the Part B application.
The Agency has no basis to object
to this.
However, once the permit is issued, the operator cannot
change the method of calculation without filing a new permit
128—443
54
application.
With this understanding, the language is
acceptable, and appears
in substantially the same form in Section
726.206(e).
40 CFR 266.106(f)(1)
726.206(f)(1))
reads as follows:
The Director may approve on a case-by—case basis
approaches to implement the Tier II or Tier III metals
emission limits provided by paragraphs
(C)
or
(d) of
this section alternative to monitoring the feed rate of
metals in each feedstream.
The rule then goes on to specify how the generally applicable
rules are to be modified under
the
alternative approach.
The
Board believes that this forms the criterion under which the
Agency is to decide whether to approve the alternative.
Consistent with this,
the Board has added a citation to
subsection
(f) (2), but solicits comment.
The proposed language
is as follows:
Pursuant to subsection
(f) (2), the Agency shall approve
on a case—by—case basis approaches to implement the
Tier II or Tier III metals emission limits provided by
subsections
(c) or
(d) alternative to monitoring the
feed rate of metals in each feedstream.
40 CFR 266.106(h)
contains references to Appendices X and
IX,
in that order.
These correspond with Appendices J and I.
It
is unusual to cite numbered documents out of order, raising the
possibility of a typo.
However, the citations appear to be
correct.
The Board has proposed to follow the federal language.
Section 726.207
Standards for HC1 and Cl2
This Section is drawn from 40 CFR 266.107, which was adopted
at 56 Fed.
Reg.
7206, February 21,
1991.
The Section was also
corrected as described above.
This Section sets emission
standards for hydrogen chloride and chlorine gas.
40 CFR 266.207(e) provides for adjusted Tier I feed rate
screening limits.
The citation to “Appendix I” was corrected to
“Appendix II”
Appendix
B
in the July 17 corrections.
40 CFR 266.207(e) provides that “The owner or operator may
adjust the feed rate screening limit provided by Appendix B...”
This poses the same problems as discussed above in connection
with 40 CFR,266.106(e)
(726.207(e).
The Board has left this as
“may adjust”, with the same understanding as discussed above.
Section 726.208
Small Quantity Exemption
This Section is drawn from 40 CFR 266.208, which was adopted
128—444
55
at 56 Fed.
Req. 7206,
February 21,
1991.
It was also corrected
as discussed above.
This Section creates an exemption for on-
site burning by small quantity generators.
On July 17, USEPA corrected 40 CFR 266.108(a) to create an
exemption from the entire Subpart.
40 CFR 266. 108 (a) (1)
includes a table which gives exempt
quantities as
a function of TESH.
The table has been moved to
Table A, which~wil1appear after the Appendices.
40 CFR 266.108(c)
includes a formula which was corrected on
July 17.
The correction specifies that the
““
symbol should be
changed to
“?“.
However, although the February 21 Federal
Register is only marginally legibly,
it appears to be correct.
Moreover, the disks provided by USEPA have this as
,,?,,.8
The
Board has proposed this as
“?“.
USEPA has not corrected the
major error in the formula, which
is the alignment of the
“?
1.0”.
The Board has avoided this problem altogether by
reformatting the formulas,
as discussed above.
40 CFR 266.108(d)
726.208(d)
requires exempt facilities to
notify USEPA.
The Board has required the notice to be directed
to the Agency, but solicits comment as to whether USEPA intends
to receive these notices directly.
If so, should notice also go
to the Agency?
40 CFR 266.108(d) (3)
726.208(d)
(3)
requires the exempt
operator to notify the appropriate agency of the “The maximum
quantity of hazardous waste that the facility may burn per month
as provided by...”
The Board has proposed to render this as “is
allowed to burn”.
Section 726.209
Low Risk Waste Exemption
This Section is drawn from 40 CFR 266.109, which was adopted
at 56 Fed. Req. 7206, February 21,
1991.
This Section was also
corrected as noted above.
It provides “waiver” mechanisms for
“low risk waste”.
If the “waivers” are granted, the unit is
exempt from the DRE and/or PM standards.
An initial question centers on whether the “waivers” are in
the nature of permit decisions which the Agency can make pursuant
to Section 39 of the Act, or whether they are decisions which. are
8One possibility,
which the Board
is not following,
is that
USEPA intended to change
this
from
“?“
to
““,
but stated the
correction backwards.
However,
if the formula were applied to a
single stack burning the allowable quantity, Ci/Li would equal
1.
Since the facility would be burning an “allowable quantity”,
“?“
would be correct.
128—445
56
reserved to the Board.
A general discussion of the factors the
Board considers in making this type of determination appears in
the introduction to this Opinion.
One consideration is whether this is, on the one hand,
truly
a “waiver” of a Board rule, which would require some form of
Board action, or, on the other hand,
merely a permit decision
which requires the applicant to comply with an alternative Board
regulation.
The
Board
does
not
believe
that
the
“waivers”
in
the
USEPA rules amount to waivers which would require Board action.
To receive an exemption, the operator makes a technical showing
of a type which is ordinarily received by the Agency in permit
applications.
The showing establishes that there is no need for
compliance with DRE and PM standards.
The operator is required
to comply with conditions,
specified by Board rule, which operate
in lieu of these standards.
Moreover, the operator remains
subject to the rest of the regulatory program,
including other
standards and the permit requirement.
The Board therefore has
proposed these “waivers” as Agency permit decisions.
One of the criteria for exemption from the DRE standard is
that the BIF must primarily burn fossil or similar fuel.
40 CFR
266.109(a) (1) (i)
reads as follows:
A minimum of 50 percent of fuel fired to the device
shall be fossil fuel,
fuels derived from fossil fuel,
tall oil,
or,
if approved by the Director on a case-by-
case basis,
other nonhazardous fuel with combustion
characteristics comparable to fossil fuel.
The
standard
for
the
case—by—case
decision
is
“nonhazardous
fuel
with combustion characteristics comparable to fossil fuel”.
This
is again a technical determination which is appropriate for
Agency decision in the context of permit issuance.
Proposed
Section 726.209(a) (1) (A) reads as follows:
A minimum of 50 percent of fuel fired to the device
must be fossil fuel,
fuels derived from fossil fuel,
tall oil or,
if approved by the Agency on a case-by-
case basis, other nonhazardous fuel with combustion
characteristics comparable to fossil fuel.
The Section goes on to define the terms used in this
provision.
These were the subject of corrections on both July 17
and August 27,
1991.
40 CFR 266.109(a)(2)(iv)(B)
(726.209(a)(2)(D)(ii)
contains
a formula in narrative form:
For the carcinogenic compounds listed in Appendix
E,
the sum for all constituents of the ratios of the
actual ground level concentration to the level
128—446
57
established in Appendix
E)
cannot exceed 1.0;
This could be written like similar provisions,
as follows:
SUM(Ai/Li) ?
1.0
where:
SUN(Xi)
means the
sum
of the values of X for each
carcinogen i,
from
i
=
1 to n.
n means the
number
of carcinogenic compounds;
Ai
=
Actual ground level concentration of carcinogen
I~jfl~
Li
=
Level
established
in
Appendix
E
for
carcinogen
,,
~“
.
The
Board
solicits
comment
as
to
whether
this
format
would
be
better.
Section
726.210
Waiver
of
DRE
trial
Burn
for
Boilers
This Section is drawn from 40 CFR 266.110, which was adopted
at 56 Fed.
Reg.
7206, February 21,
1991.
This Section was also
corrected
as
discussed
above.
This Section contains a “waiver” of the trial burn
requirement and DRE standard for boilers.
This is rather similar
to the preceding Section.
The “waiver” is aqain a permit-type
decision in which the Agency applies an alternative set of Board
regulations
after
reviewing
a
technical
submission
in
a
permit
application.
No Board action is required for the waiver.
40 CFR 266.110(f) (1)
limits hazardous waste fuel burned
under the waiver to that with a viscosity less than “300 SSU”.
This is not defined in the rules.
Nor is a measurement method
specified.
The Board solicits comment as to what this means.9
Section 726.211
Standards for Direct Transfer
This Section is drawn from 40 CFR 266.111, which was adopted
at 56 Fed. Req. 7206, February 21,
1991.
It was corrected in the
August 27 Federal Register.
This Section governs the direct
transfer of hazardous waste from
a vehicle to a BIF, without a
storage unit intervening.
9we could speculate that this means “standard sucrose units”
or “sucrose standard units”, and that it is defined in SW 846.
128—447
58
40 CFR 266.111(c) (2)
reads as follows:
Direct
transfer
equipment
used
for
pumpable
hazardous
waste must always be closed,
except. when necessary to
add or remove the waste,
and must not be opened,
handled or stored in a manner that may cause any
rupture or leak.
As is discussed above, the Board has attempted to restrict the
use of “may” to situations in which the operator or Agency has an
option.
This usage does not fit that mold.
The Board has
rendered this as “could”, which appears to mean the same thing.
40
CFR
266.111(d)
(2)
was
substantially
amended
in
the
August
27 corrections.
This added a reference to NFPA 30, the
“Flammable and Combustible Liquids Code”.
Rather than repeat the
bibliographical information, the Board has just cited to the
preexisting reference in 35 Ill. Adm. Code 720.111.
Section 726.212
Residues
This Section is drawn from 40 CFR 266.112, which was adopted
at 56 Fed. Reg.
7206, February 21,
1991.
The Section was the
subject
of
extensive
modification
in
the
August
27
corrections
discussed above.
The Section number was corrected in the July 17
corrections.
This Section regulates residues from BIFS.
Section 726.219
Extensions of Time
This Section was drawn from 40 CFR 266.103(c) (7) (ii), which
was adopted at 56 Fed. Req.
7206, February 21,
1991.
The Section
was also subject to the correction in the July 17,
1991,
Federal
Register, as discussed above.
This Section allows a case—by—case
extension of time to file the certification of compliance
pursuant to Section 726.203(c)
266.103(c)).
These provisions
have been moved out of the main text,
since the USEPA text uses
levels of subdivision which are not allowed in the Administrative
Code.
Moreover, this procedural text could become more complex
at the State level.
This Section poses a question as to whether it is the Board
or Agency which should be able to grant this extension of time.
The general factors which the Board considers in making this type
of decision are discussed above, in the general introduction to
this Opinion.
This decision amounts to an extension of time to file a
document which functions in lieu of a permit.
Moreover, it
amounts to a temporary variance from the requirement to comply
with the HC standards.
This clearly requires a Board action.
128—448
59
The variance procedures of Title IX of the Act are an appropriate
procedural mechanism for granting a temporary extension of a
compliance
deadline.
Indeed,
this
provision
is
similar
to
the
extension of time to file a Part A application under 35 Ill.
Adm.
Code 703.150(c),
which requires a variance petition.
The. Board has’ therefore proposed to require a person seeking
extension of time for filing the certification of compliance to
file a
RCRA
variance petition pursuant to 35 Ill.
Adm. Code 104.
The Boa,rd will grant the variance if the petitioner meets, the
requirements for the extension derived from the USEPA rules, and
otherwise meets the requirements for a variance.
The following
is the text of proposed Section 726.219:
Section 726.219
Extensions of Time
The owner or operator may request a case—by-case
extension of time to extend any time limit provided by
Section 726.203(c).
The operator shall file a petition
for a RCRA variance pursuant to 35
Ill. Adm. Code 104.
The Board will grant the variance if compliance with
the time limit is not practicable for reasons beyond
the control of the owner or operator.
a)
In granting an extension, the Board will apply
conditions as the facts warrant to ensure timely
compliance with the requirements of Section
726.203 and that the facility operates in a manner
that
does
not
pose
a
hazard
to
human
health
and
the
environment;
b)
When an owner and operator request an extension of
time to enable them to obtain a RCRA permit
because the facility cannot meet the NC limit of
Section
726.204(c):
1)
The Board will,
in considering whether to
grant the extension:
A)
Determine whether the owner and operator
have submitted in
a timely manner a
complete Part B permit application that
includes information required under 35
Ill.
Adm. Code 703.208(b);
and
B)
Consider whether the owner and operator
have made a good faith effort to certify
compliance with all other emission
controls, including the controls on
dioxins and furans of Section 726.204(e)
and the controls on PM, metals and
Nd/chlorine
gas.
128—44 9
60
2)
If an extension is granted, the Board will,
as a condition .of the extension, require the
facility to operate under flue gas
concentration limits on CO and HC that, based
on available information, including
information
in
the
Part
B
‘permit
application,
are baseline CO and HC levels as defined by
Section 726.204(f) (1).
BOARD
NOTE:
Derived from 40 CFR
266.103(c) (7)
(ii),
adopted
at
56
Fed.
Reg.
7206, February 21,
1991;
and 56 Fed. Reg.
32688, July 17,
1991.
As is discussed in the general introduction to this Subpart,
the BIF rules are mainly HSWA-driven.
Ordinarily such rules
would be administered by USEPA up to the point of authorization.
However, USEPA’s rules appear to allow only the “State Director”
to grant these waivers.
If USEPA does intend to retain control,
this provision would require both a Board variance and USEPA
approval prior to authorization.
Appendix A
Tier
I and II Feed Rate and Emissions Screening
Limits
This Appendix was drawn from 40 CFR 266, Appendix I, which
was adopted at 56 Fed. Reg.
7206, February 21,
1991.
The
Appendix was also subject to the corrections in the July 17 and
August 27,
1991, Federal Registers, as discussed above.
There is possible confusion in the numbering between the
USEPA and Board Appendices.
USEPA Appendix I corresponds with
Board Appendix A.
USEPA Appendix IX corresponds with Board
Appendix I.
The Board’s method of numbering is dictated by
Administrative Code requirements, which the Board cannot change.
However, to avoid confusion,
in the Proposed text of the rules,
the Board has inserted “(‘eye’)” after each reference to Appendix
I, to remind readers that this is letter “I”, not Roman numeral
“one”
There is a possibility that,
in the course of editing the
USEPA text to form the Board rules, that the staff may converted
“Appendix IX” to “Appendix I”, and then “Appendix I” to “Appendix
A”.
The staff has detected, and corrected a number of errors of
this type.
There may be more.
This Appendix sets “feed rate and emissions screening
limits” for metals.
The title of Table I—A was corrected to
refer to “noncarcinogenic metals” in the July 17,
1991
corrections.
128—450
61
Appendix B
Tier
I feed rate screening limits for Total
Chlorine
This Appendix was drawn from 40 CFR 266, Appendix II, which
was
adopted
at
56
Fed.
Req.
7206,
February
21,
1991.
The
Appendix was also subject to the corrections in the July 17,
1991,
Federal Register,
as discussed above.
The original text of this Appendix set screening limits in
lbs/hr.
This was changed to g/hr in the correction.
Thus, all
of the numerical entries in this table had to be retyped.
They
are therefore more subject to typos than the portions of the
rules which were taken from USEPA diskettes.
The
title
of
40
CFR
266,
Appendix
II
was
also
changed
in
the
July
17,
1991,
correction.
While
the
original
table
referred
to
screening limits for “total chlorine and chloride”, the corrected
table is headed as just “total chlorine”.
This may be an error
by USEPA, since the related rules use this table to regulate
“total
chlorine
and
chloride”.
The
Board
solicits
comment” as
to
whether this might be an error by USEPA.
Appendix C
Tier II Emission Rate screening limits for free
chlorine and hydrogen chloride.
This Appendix was drawn from 40 CFR 266, Appendix III, which
was
adopted
at
56
Fed.
Req.
7206,
February
21,
199-1.
The
Appendix was also subject to the corrections in the July 17,
1991,
Federal Register,
as discussed above.
The numerical data in this table was changed from g/sec to
g/hr, necessitating retyping.
In addition, two columns were
added, giving emission rates for urban and rural areas with
“complex terrain”, which is defined in the rules.
This
apparently replaces the separate two-column table for complex
terrain which appeared in the original rules.
Appendix D
Reference Air Concentrations
(“RACs”)
This Appendix was drawn from 40 CFR 266, Appendix IV, which
was adopted at 56 Fed.
Req. 7206, February 21,
1991.
The
Appendix was also subject to the corrections-in the July 17,
1991,
Federal
Register,
as
discussed
above.
“RAC”
is defined in Sections 726.200(g)
and 726.206(d) (2).
This
is
the
acceptable
ambient
level
for
the
noncarcinogenic
metals for purposes of this Subpart.
Following Appendix IV D)
is a note specifying that other 40
CFR
261,
Appendix
VIII
H)
constituents
have
a
RAC
of
0.1
ug/
cu
m.
Footnotes are not allowed in Administrative Code rules.
The
Board has rendered this as a “Board Note” at the beginning of the
128—451
62
Appendix.
The July 17,
1991,
corrections involve the spelling of
chemical names.
The Board has corrected additional names.
Appendix E
Risk Specific Doses
(RSDs)
This Appendix was drawn from 40 CFR 266, Appendix V, which
was adopted at 56 Fed. Req.
7206, February 21,
1991.
As defined
in Sections 726.200(q)
and 726.206(d) (2), this is the acceptable
ambient
level for the carcinogenic metals for purposes of this
Subpart.
These are based on a risk of 1E—05,
or 1/100,000.
The
Appendix has two
columns.
One is
headed “Unit risk
(m3/ug)”.
The other is headed “RsD
(ug/m3)”.
The Board has
corrected these to use the abbreviations outlined above,, so they
read:
“Unit risk (cu m/ug)” and “RSD
(ug/cu m)”.
However, the
Board solicits comments as to whether these headings might be in
error.
Appendix F
Stack Plume Rise
This
Appendix
was
drawn
from
40
CFR
26,6,
Appendix
VI,
which
was adopted at 56 Fed. Req.
7206,
February 21,
1991.
This gives
the stack plume rise, which is used in the formula for TESH in
Section
726.206(b)
(3).
Appendix G
Limits for Exclusion of Residues
This Appendix was drawn from 40 CFR 266, Appendix VII, which
was adopted at 56 F-ed.
Req.
7206, February 21, 1991.
The
Appendix was also subject to the corrections in the July 17,
1991, Federal Register, as discussed above.
This Appendix is
used,
in Section 726.212,
in connection with the exclusion of
certain BIF residues from regulation as hazardous wastes.
Appendix VII
G
includes two tables.
While the first
specifies “Metals
-
TCLP Extract Concentration Limits”, the
second specifies “Nonmetals
—
Residue Concentration Limits”.
The July 17 corrections included replacing the entries for
thallium in the “Nonmetals” table with a single entry under
“Metals”
10Actually,
these headings are misleading.
There are metal
salts
in the nonmetals table
(nickel cyanide), and nonmetals in
the metals table
(selenium and, arguably, thallium).
Also, there
are nonmetals for which the TCLP test could be used.
It would be
better if the metalsfnonmetals distinction were dropped from the
tables.
The true distinction
is that,
while some parameters are
to be measured by TCLP,
others are to .be measured
in the whole
residue.
128—452
63
A second correction changed the units for the TCLP
extraction limits from “mg/kg” to “mq/L”, the appropriate units
for extraction limits.
However, USEPA has not changed the
footnote following the Appendix, which continues to specify
“mg/kg” for all other 40 CFR 261, Appendix VIII
H
constituents.
This is may be an error, since there are additional constituents
which could be measured by the TCLP test,
for which the limit
ought to be stated in mq/L.
However, this probably doesn’t make
a lot of difference, since the density of the TCLP extract is
approximately 1 mg/L,
so that mg/L is approximately equal tb
mg/kg.
The Board solicits comment as to whether it ought to try
to fix this error.
Appendix H
Potential PIC5
This Appendix was drawn from 40 CFR 266, Appendix VIII
H,
which was adopted at 56 Fed. Req.
7206, February 21,
1991.
The
Appendix was also subject to the corrections in the July 17,
1991,.Federal Register, as discussed above.
These are used in
connection with the residue exclusions in Section 726.212.
Appendix
I
Methods Manual for Compliance with BIF Regulations
This Appendix was-drawn from 40 CFR 266, Appendix IX, which
was
adopted
at
56
Fed.
Req.
32688,
July
17,
1991.
The
Appendix
was
also
subject
to
the
corrections
in
the
August
27,
1991,
Federal Register.
This and the following Appendix were referenced,
but not
contained in, the original February 21,
1991,
Federal Register.
While the original reference was to the NTIS documents, USEPA
published the entire documents with the July 17 corrections.
Because these documents are rather lengthy and detailed, the
Board has not proposed to adopt the verbatim text.
Rather, the
Board will incorporate the text by reference.
The Board solicits
comment as to whether it ought to instead print the full text.
The Board has proposed to cite to both the NTIS and the CFR
versions of these documents, since the NTIS version is apt~to be
more available and usable to some people than the CFR version.
The
citation
is
as
follows:
See “Methods Manual for Compliance with BIF
Regulations”.
This
document
is
available
from
two
sources.
It is available through NTIS,
incorporated by
reference in 35 Ill. Adm. Code 720.111.
It is also
available as 40 CFR 266, Appendix IX, adopted at 56
Fed. Reg.
32688, July 17,
1991 and amended at 56
Fed.
Req. 42511, August 27,
1991, which is incorporated by
reference.
This incorporation includes no future
128—453
64
editions or amendments.
The references are handled differently because, while the
CFR version is a “normal” incorporation by reference, the NTIS
version is “abnormal”.
The “normal” incorporation occurs at the
point in the text which is equivalent to the USEPA rule cited.
Any amendments will automatically be incorporated in the normal
updating process.
On the other hand, the NTIS version is an
“abnormal” reference, which belongs in 35 Ill. Adm. Code 720.111.
Updating of that reference would be handled differently.
Appendix J
Guideline on Air Quality Models
This Appendix was drawn from 40 CFR 266, Appendix X, which
was adopted at 56 Fed. Reg.
32688,
July 17,
1991.
The Appendix
was also subject to the corrections in the August 27,
1991,
Federal Register.
It is subject to the same problems as
Appendix I.
The text of the reference is as follows:
See “Guideline on Air Quality Models
(Revised)”.
This
document is available from two sources.
It is
available through NTIS,
incorporated by reference in 35
Ill. Adm. Code 720.111.
It is also available as 40,CFR
266, Appendix X, adopted at 56 Fed. Reg.
32688, July
17,
1991 and amended at 56 Fed. Reg.
42511,
August 27,
1991, which is incorporated by reference.
This
incorporation includes no future editions or
amendments.
Appendix K
Lead-Bearing Materials in Exempt Lead Smelters
This Appendix was drawn from 40 CFR 266, Appendix XI, which
was adopted at 56 Fed. Req.
42511,
August 27,
1991.
This again
is an addition to the original February 21,
1991 rules.
It
contains
a list of the types of lead—bearing hazardous waste
which can be introduced into a lead smelter which is exempt from
the BIF rules.
The exemption appears above in connection with
Section 726.200(c).
Appendix L
Nickel or Chromium-Bearing Materials in exempt
Nickel-Chromium Recovery Furnaces
This Appendix was drawn from 40 CFR 266, Appendix XII, which
was adopted at 56 Fed. Req. 42511, August 27,
1991.
This again
is an addition to the original February 21,
1991 rules.
It
contains a list of the types of nickel or chromium—bearing
materials in exempt Nickel—Chromium Recovery Furnaces which are
exempt from the BIF rules.
The exemption appears above in
connection with Section 726.200(c).
40
CFR
266,
Appendix
XII
contains
the
following
footnote:
“If a hazardous waste under an authorized State program.”
It’s
128—454
65
not clear how to translate this into a State rule.
Should it
refer to the Illinois program, or other programs?
A possible
formulation would be:
If a hazardous waste as defined in 35 Il1.,Adm. Code
721.
At a deeper level,
it’s not clear what function this note
serves.
If the waste were not a hazardous waste, there would be
no prohLbition at all on burning it in the recovery furnace.
If
it were, then it would be exempt, the same result.
‘The Board has
therefore proposed to simply omit it.
PART
728:
LAND
DISPOSAL BANS
This Part contains the USEPA land disposal prohibitions.
It
was extensively amended in R90-11, to add the enormous “third
third” land disposal regulations.
During the pendency of R90-1l,
USEPA published a massive correction of the third third rules,
at
56 Fed. Req.
3876, January 31, 1991.
The Board made ‘a small
number of these corrections in R90—11.
However,
it was not
possible to address all the corrections in R90-11.
Apart from
the sheer volume of the corrections, there
is the added problem
of identifying what has been changed, since USEPA does not use ‘a
“strike and underline”-fOrmat in the Federa.l Register.
Almost
all
of
the
revisions
to
this
Part
stem
from
the
third
third correction.
The Board will expressly indicate any changes
which do not arise from the third-third correctjons.
Section
728.107
The amendments to this Section include more or less
identical changes in wording to the following provisions:
Section
728.107
(a)
(1) (B),
(a)
(2) (A) (ii),
(a)
(3)
(B)
and
(b)
(4) (B).
These include references ,to the USEPA definitions of “wastewater”
and “nonwastewater”
in 40 CFR 268.2(f) and
(d).
The equivalent
Board definitions are in Section 728.102.
However, they appear
as an alphabetical list,
in accordance with Code Division
requirements, rather than as lettered subsections.
The Board has
therefore proposed to replace the specific references with a
general reference to the definition list.
The Board’s proposed
language is as follows:
The
notice must include...The
corresponding treatment
standards for wastes F001-F005, F039 and wastes
prohibited pursuant to Section 728.132
or Section
3004(d)
of the Resource Conservation and Recovery Act,
referenced in Section 728.139.
Treatment standards for
all ,other restricted wastes must either be included,
or
be referenced as above,
or by including on the
notification
the
subcategory
of
thc
waste,
the
128—455
66
treatability group(s)
of the waste (a) ,wastewater or
nonwastewater
(as defined in Section 728.102~ category.
the aptlicable subdivisions made within a waste code
based on waste—specific criteria
(such as D003.
reactive cyanides). and the Section and subsection
where the aDplicable treatment standarde appear~...
The USEPA correction also includes a new 40 CFR
268.107(a) (6), which reads as follows:
If
a generator determines that the he is managing a
restricted waste that is excluded from the definition
of hazardous or solid waste or exempt from Subtitle C
regulation,
under 40 CFR 261.2
—
261.6 subsequent to
the point of generation,
the he must place a one—time
notice stating such generation,
subsequent exclusion
from the definition of hazardous or solid waste or
exemption from Subtitle C regulation, and the
disposition of the waste,
in the facility’s file.
There are quite a few problems with this language.
The first has
to
do
with
the
references
to
“Subtitle
C
regulation”.
This
is
a
reference to Subtitle C of the federal
RCRA
Act, which governs
hazardous waste.
At the State level, this would probably have to
be handled as an incorporation by reference.
Rather than deal
with the complexity of such a reference,
it is simpler to cite to
the State definition of “hazardous waste”, which is derived from
RCRA Subtitle C.
However, USEPA already appears to cite to its
regulations,
from which the Board rules are derived.
The
“Subtitle C” references therefore appear to be mere surplusage.
The
Board
has
proposed
to
replace
them
with
the
phrase
“RCRA
hazardous waste”, but solicits comment.
The USEPA provision has several misplaced modifiers, missing
commas
and
extra
commas.
The
Board
has
proposed
to
rearrange
the
provision to make it easier to read.
The proposed language is as
follows:
If a generator determines,
subsequent to the point of
generation, that the generator is managing a restricted
waste which is excluded from the definition of
hazardous or solid waste or exempt from regulation as a
RCRA hazardous waste under 35 Ill.
Adm.
Code 721.102
-
721.106, the generator shall place,
in the facility’s
file,
a one—time notice stating such generation,
subsequent exclusion from the definition of hazardous
or solid waste or exemption from regulation as a RCRA
hazardous waste, and the disposition of the waste.
Section
728.109
Section
728.109(d)
(1)
(B)
includes
language
similar
to
that
128—456
67
discussed above in connection with Section 728.107(a)(1)(B).
The
Board has replaced the specific references to USEPA definitions
with a generic reference to the definition set in Section
728.102.
Sections 728.110
—
728.113
The Board has proposed to add four new Sections
incorporating
40
CFR 268.10
-
268.13 by reference.
The USEPA
Sectionp set forth USEPA’s schedule for promulgating the land
disposal bans.
As such, they apply only to USEPA, and are not
appropriate for adoption with the Illinois program.
However,
it
has become clear that these Sections also serve as a definition
of the “thirds”.
As such, they may be necessary in the Illinois
rules.
The Board has proposed to merely incorporate the USEPA
rules by reference,
but solicits comment as to whether it would
be better to adopt the verbatim text.
Section
728.133
In adopting this and the following Sections, the Board broke
the long USEPA blocks of text into subsections, and reversed the
wording of most Sections so as to place lists and the end of
provisions
(as required in the Administrative Code).
This makes
the Section easier to use, but harder to compare with the USEPA
text.
Section
728.133(b)
has
been
corrected
so
that
it
applies
only to K071.
This Section contains a large number of temporary provisions
which no longer have any prospective effect.
The Board has
proposed to delete them.
If persons violated them while they
were in effect, enforcement will be’ possible under the
regulations
which
were
in
existence
at
the
time.
In some cases entire subsections are being deleted.
The
Board is not proposing to renumber the subsections,
in order to
maintain correspondence with federal numbering.
Section
728.135
This Section is the subject of numerous minor corrections.
Section 728.135(d)
includes a back-reference to the
definitions of the thirds in Section 728.110 et seq.
In adopting
this Section, the Board referenced 40 CFR 268.10 et seq.
directly.
The reference, which is the subject of USEPA
amendments, is now changed to reference Section 728.110 et seq.
40 CFR 268.35(d),
as amended, and
(j)
include references to
wastes “listed in 40 CFR 268.10,
268.11 and 268.12”.
Since these
128—457
68
lists are mutually exclusive, this reference reduces to the null
set.
USEPA probably means
“or”, which the Board has proposed to
follow.
The
instructions
in
the
Federal
Register
are
clear
that,
while only 40 CFR 268.33(a)
-
(e) are reprinted,
(f-) et seq. are
retained without changes.
However, the Board is unable to find
the change in
(e).
Section 728.140
Section 728.140(a)
is the subject of numerous changes to
cross references.
The text is as follows:
A restricted waste identified in Section 728.141 may be
land disposed only if an extract of the waste or of. the
treatment residue of the waste developed using the test
method Appendix A35 Ill. Adm. Code 721.Arnendix B does
not exceed the value shown in Table A for any hazardous
constituent listed in Table A for that waste, with the
following exceptions:
D004, D008,
K031, K084,
K101,
K102,
POlO,
P011, P012,
P036, P038 and U136.
Wa3tc3
D004,
D000, K031,
K084, K101,
K102,
P0.10,
P011,- P012,
P036,
P030 and Ul36These wastes may be land disposed
only if an extract of the waste or of the treatment
residue of the waste developed using either the test
method in 35 Ill. Adm. Code 721.Appendix ~
or the test
method in 35 Ill. Adm. Codc 728.Appendix ~I
(“eye”)
of
this
Part
does
not
exceed
the
valueconcentrations
shown
in Table B~for any hazardous constituent listed in
Table
A
for
that
waste.
There are several potentially confusing aspects to this.
First,
40 CFR 268.41, Table CCWE appears in the Board rules as 35
Ill. Adm.
Code 728.Table A.
This is a floating Table, which
appears at the end of the part,
like an Appendix.
The
Administrative Code does not allow extensive tables inside
Sections.
Second, the final sentence has a reference to Appendix B of
Part 721, or Appendix
I of Part 728.
Appendix I corresponds with
40 CFR 268, Appendix IX.
In other words, the State rule is
letter “I”, not Roman numeral “I”.
As is discussed above for
Part 726, the Board has added an “(‘eye’)” after each of these
references to avoid confusion.
It is unfortunate that the USEPA rule is worded with a
complex reference (to another Part) followed by a simple
reference (to the same Part).
In the proper Code format,
these
are ambiguous,
in that the second could be taken as a
continuation of the first.
For this reason, the Board has
proposed to add a superfluous “of this Part” to the second
128—458
69
reference.
Section 728.141
(Not Amended)
This Part is drawn from 40 CFR 268.41, which includes Table
CCWE.
All the corrections to this Section are in the Table,
which appears as Table A, at the end of the Board rules.
There
are no corrections to the text of the’ Section proper.
Section 728.142
This Section establishes treatment standards by way of
requiring certain technologies.
40 CFR 268.42(a) (2) requires
halogenated organic compounds
(HOCs)
to be incinerated pursuant
to the incinerator rules in Subpart 0 of Part 264 or 265.
This
may conflict with the BIF rules, which have moved the BIF
regulations
to
Part
266.
The
Board
has
not
attempted
to
correct
this
possible
error,
but
solicits
comment.
Although new Section 728.142(a) (3) was added with the third
third corrections,
it appears to be more closely related to the
process vent rules.
It deals with wastewater mixed with de
minimis losses of materials from manufacturing operations.
The
USEPA
rules
refer
to:
A
mixture
consisting
of
wastewater,
the
discharge
of
which is subject to regulation under either section 402
or section 307(b)
of the Clean Water Act,
and de
minimis losses of materials...
Sections
402
and
307(b)
of
the
CWA
refer
to
the
NPDES
permit
requirement and to the pretreatment standards.
The Board has
proposed to replace this with a reference to the equivalent State
regulations at 35 Ill.
Adm. Code 309 and 310.11
40 CFR 268.42(a) (3)
ends with a list defining “de minimis
losses”.
The Board has proposed to break subsections out to make
this more readable.
The proposed language is as follows:
fl
A
mixture
consisting
of
wastewater,
the
discharge
11The
USEPA
reference
is
asymmetric
in
that
it
refers
to
surface effluent discharge permit requirement and the pretreatment
standards.
The Board has proposed to replace this with a reference
to the two permit
requirements.
Part
309
is the NPDES
permit
requirements,
and Part 310 contains the requirement to obtain
a
pretreatment permit
or
“authorization to discharge”
from
local
government
before
discharging
to
a
sewer.
The
latter
permit
requirement attaches
if
an indirect discharger is subject to one
of
the
pretreatment
standards
under
307(b)
of
the
CWA,
the
reference given in the USEPA rule.
128—459
70
of which is subject to regulation under
35 Ill.
Adm. Code 309 or 310, and de minjmis losses of
materials from manufacturing operations in which
these materials are used as raw materials or are
produced as products in the manufacturing process,
and that meet the criteria of the DOOl ignitable
liquids
containing greater than 10
total organic
constituents
(TOC) subcategory, is subject to the
DEACT
treatment standard described in Table
C.
For purposes of this subsection.
“de minimis
losses” include:
~
Those from normal material handling
operations
(e.g., spills from the
unloading or transfer of materials from
bins or other containers,
leaks from
pipes, valves or other devices used to
transfer materials)
~j
Minor leaks from process equipment.
storage tanks, or containers
~j
Leaks from well—maintained pump packincis
and seals
~j
Sample purgincis; and
~j
Relief device discharges.
Section 728.143
(Not Amended)
This Section sets CCW Treatment Standards.12
The Board
addressed the USEPA corrections to this Section in R90—1l.
The
corrections left much to be desired, so that the Board was forced
to make several changes to the USEPA language.
The Board will
not further modify this Section until USEPA provides additional
corrections.
One problem with the USEPA rule is that it references,
in a
general way, guidance documents which have not yet been
published.
The Board is prohibited from doing this by the IAPA.
If USEPA has now actually published these documents, they could
be referenced into this rule.
The Board solicits comment.
Section 728.144
Treatability “variances”
12Table CCW appears in the Board rules as Table B, which floats
at the end of the Part, following the Appendices.
128—460
71
This Section governs “treatability variances”.13
It was
adopted in R87-5,
and amended in R89—1.
As adopted by the Board,
it utilizes the “adjusted standards” procedures of 35
Ill. Adm.
Code 106 and Section 28.1 of the Act for making these
determinations.
USEPA amended’ 40 CFR 268.44(o) to add two site specific
“treatability variances” at 56 Fed.
Reg. 12355, March 25,
1991.
The Board is not proposing to adopt these at this time,
for
several
reasons.
The general language of 40 CFR 268.44 was not specific that
USEPA
would
grant
site-specific
treatability
“variances”
by
way
of adopting a rule.
Therefore, in R87—5 and R89-1, the Board did
not specifically address the possibility of adopting a site-
specific “identical in substance” treatability “variance”.
Instead, the equivalent Section 728.144 provides only for Board
action on an adjusted standard petition.
As USEPA is using it,
40 CFR 268.44 appears to be similar to
40 CFR 260.22
720.122,
which provides for site—specific
delisting of hazardous waste.
When
the Board originally adopted
Section 720.122,
it allowed two mechanisms for delisting.
The
first allowed for Board action in “identical in substance”
rulemaking following a’USEPA delisting.
‘The second
(which was
never used)
allowed the Board to delist wastes pursuant to
general rulemaking.
These provisions were extensively amended in
R90-17,
replacing
the
second
mechanism
with
the
adjusted
standards procedure.
Site specific delistings for the most part have no effect on
the Illinois program.
The Board cannot generally tell,
from the
Federal Register notices, which site-specific delistings affect
the Illinois program.
Accordingly, Section 720.122(p)
allows
site-specific delistings only on a showing that a waste will be
“generated or managed in Illinois”.
It would be possible to adopt similar provisions governing
“treatability variances”.
The Board has not, however, proposed
to do so.
The Board anticipates that Illinois will be delegated
primacy for treatability “variances” in the near future.
A rule
allowing site-specific treatability “variances” by identical in
substance rulemaking would therefore be a transitional rule.
After Illinois is granted primacy, any treatability “variances”
granted pursuant to the transitional rule would have an ambiguous
‘3The USEPA rules are using the term “variance”
in
a manner
which
is
different
from
the
way
the
term
is
used
in
the
Environmental Protection Act.
In this situation the USEPA variance
is similar to a
site specific rule or adjusted standard in the
Environmental Protection Act.
128—461
72
status.
Any modifications to the “variances” might entail the
simultaneous repeal of the site—specific rule and granting of an
adjusted standard.
The Part 268 land disposal bans are HSWA—driven rules.
Part
268 therefore applies directly in Illinois upon adoption by
USEPA.
However,
Sections 7.2 and 22.4(a)- of the Act require the
Board to adopt identical in substance rules within 12 months.
The result is, pending authorization by USEPA,
a dual regulatory
system
~Ln
which persons must comply with both Part 268 and 728.
A person who obtains a treatability “variance” from USEPA
pursuant to Part 268 must still get an adjusted standard pursuant
to Part 728.
During the transitional period, the dual procedural
requirement may be burdensome.
However,
in the long run it would
allow for more efficient procedures should modification be needed
following primacy.
As discussed above,
for identical in substance site specific
delisting, the Board does not automatically adopt a delisting
with the RCRA Updates.
Rather, the ‘person seeking the delisting
must file a petition with the Board showing that the waste is
generated or managed in Illinois.
Therefore, even if Section
728.144 were patterned after the delisting rules, the Board would
not handle these treatability “variances”
in this Docket.
Rather, ,the Board would open separate Dockets on receipt of
rulemaking petitions.
In
this
case
it
is
likely
that
both
of
the
facilities
involved are located in Illinois.
The Board cannot tell for
certain,
since the USEPA rule could be giving the address of the
corporate office, rather than,the specific facility.
Furthermore, the Board cannot tell from the Federal Register
whether the wastes are managed inside Illinois.
If these
generators
(or the receiving facilities) need the Board to adopt
these treatability “variances”, they should follow one or both of
the following courses.
First, they can ask the Board to add an
“identical in substance” procedure to this rule, and prepare to
file a rulemaking petition.
Second, they can immediately file an
adjusted standard petition, asking the Board to grant an adjusted
standard based on USEPA’s prior determination.
We note that the
procedural time frames for Board decision should not be all that
different in either case.
The Board has proposed to make some minor changes to Section
728.144.
These involve changes to cross references to the
delisting procedures to conform with R90-17.
In addition, the
Board has proposed to reference the newer generic adjusted
standards procedure, rather than the RCRA-specific adjusted
standards procedures.
The Board has added a requirement,
patterned after Section 720.122(n) (3), that the Board maintain a
list of adjusted standards in the rules.
In addition, the Board
has added a paraphrase of Section 28.1(d) (3), which requires the
128—462
73
Board to publish a list of adjusted standards at the end of each
fiscal year in the Illinois Register and Environmental Register
(See
Section
28.1).
Appendix D and E
40 CFR 268, Appendices IV and V were amended with the third
third corrections.
The corrections involve numerous replacements
of specific entries in these lists.
Appendix G and H
40 CFR 268, Appendices VII and VIII were also amended with
the third third corrections.
These are listings which show the
effective dates of various federal requirements and “variances”.
Changes appear to have been made to more than 50
of the entries
in these Appendices.
The Board has proposed to strike the entire
existing Appendices,
and to replace them with new text drawn from
the USEPA diskettes.
Appendix I
(“eye”)
40 CFR 268, Appendix IX is a new appendix which contains the
EP Toxicity test.
This test was formerly used in the definition
of hazardous waste in Section 721.124.
It has been replaced by
the TCLP test.
However, the EP Toxicity test is still used for
some of the land disposal bans.
USEPA has therefore set forth
the text of the test method in Part 268
728.
The Board has proposed to rely on incorporation by reference
for this detailed test method.
However, the Board has the text
on the USEPA diskettes
(except for illustrations), and could set
forth the complete text if commenters feel it would be worth the
effort.
As was
discussed above in connection with Part 726,
the
Board has added a “eye”
after references to this Appendix, to
avoid possible confusion with 40 CFR 268, Appendix I
(“one”).
Table A and B
CCWE and CCW
These Tables are drawn from 40 CFR 268.41, Table CCWE,
and
from 268.43,
Table CCW.
The Administrative Code does not allow
large Tables such as this to appear inside the text of a Sect-ion.
The Board therefore placed the text in floating “Tables”, which
appear after the Appendices,
at the end of the Part.
Tables CCWE and CCW were extensively amended in the third
third corrections.
The main problem is that USEPA did not
present the changes
in a “strike and underline” format, so that
the Board faced a very time-consuming process of cross—reading
the tables to find the changes.
128—463
74
After the Board had completed the cross—reading process,
USEPA provided the text of the corrected table on diskette.
It
would be possible at this point to completely repeal the old
Table,
and replace it with a new table derived from the USEPA
corrections.
However, at this time, this would involve more
staff time than proceeding with correction of the old table.
In
addition,
it would produce a longer text, which would not be
specific as to what the changes are.
Although replacement would
better insure equivalency with the USEPA Table,
it would lose the
correct~Lonswhich the Board has made, but which USEPA has not
made.
The Board has therefore proposed to continue with its own
base text,
but solicits comment.
The USEPA diskette version of the third third corrections
contains a notation that the Federal Register version
of, the
corrections ‘itself had numerous errors, which have been corrected
on disk.
The Board is clearly required to follow the text in the
Federal Register, rather than the diskette version.
Although the
Board has referred to the diskette version to correct a few
apparent14 errors in the Federal Register version, it has not
undertaken a detailed comparison of its version with the diskette
version.
Table
A
CCWE
This
Table
gives
treatment
standards
expressed
as
CCWE
(constituent concentrations in waste extract).
Some wastes may
be landfilled if an extract from the waste meets a CCWE standard.
The
extract
is
derived
from
the
TCLP
test,
or
the
EP
Toxicity
test in a few cases,.
Most of the changes are to the form of the footnotes.
USEPA
has replaced the footnote
symbols
with numbers in a separate
column.
The Board simply does not have room for two extra
columns in its format.
The Board therefore has to keep the
footnote symbols in the same column with the numerical standards.
Numbered notes tend to get confused with the numerical standards.
The Board has therefore proposed to replace the numbers with
capital letters, with “A” equal to “1”,
etc.
In the entry for F020—F023, the standards entry for
14The
Board
has
consulted
the
improved
version
where
it
observes
an
error,
such as
a misspelled
word,
in
the
Federal
Register.
The Board has used the improved version for guidance as
to how to correct such apparent errors.
This type of use would not
lead to correction of errors which are not apparent, such as wrong
names, correctly spelled, or incorrect numerical standards.
USEPA
will have to correct these in the Federal Register before the Board
can act.
128—464
75
“TCDF-All Tetrachlorodibenzofurans” is blank.
On the disk,
the
blank has been moved up to “TCDD-All Tetrachlorodibenzo-p-
dioxins”.
In all probability, both the Federal Register and the
,disk are wrong:
the standards should be “1.
ppb” for each of
these.
The Board has nonetheless proposed to follow the Federal
Register
(with furans blank), but solicits comment.
The
entry
for
1(061,
high
zinc
subcateqory,
expired
on
August
7,
1991.
Has
this
been
extended?
If
not,
should
the
“low
zinc”
subcategory be modified to include “high zinc”?
Table B
CCW
This Table sets treatment standards expressed as CCW
(constituent concentrations in the waste).
In
the
entry
for
F024,
3-Chloropropene,
the
CAS
No.
is
partly blank
in both the Federal Register and the disk version.
The Board has retained “107-05-1” from the original adoption.
In
the
entry
for
F039,
2,6-Dichlorophenol,
the
CAS
No.
in
the-Federal Register appears to be “87-85—0”.
However, this is
clearly
“87—65—0”
on
the
disk.
In the entry for 1(006, the entries for chromium and lead
appear to have been scrambled in both the Federal Register and
disk versions.
The Board has proposed to correct these so as to
state wastewater standards for chromium and lead, with “NA”
in
the
nonwastewater
column.
In KO28,
there is an entry for “trans-1,2—Dichloroethane”.
This name is internally inconsistent, since ethane cannot have
cis— and trans- isomers.
The Board has retained “trans—1,2—
Dichioroethene”,
based on the presumption that the simpler
mistake is the one which was made.
In K049,
and throughout, USEPA has modified the CAS No.
for
Chrysene, from “2218—01-9” to “218—01—9”.
The former is the
number used in 40 CFR 261, Appendix VIII.
The Board has retained
“2218”, pending clarification.
In 1(051, as originally adopted by the Board, the CAS Nos.
for Benzo(a)anthracene and Benzo(a)pyrene were the same.
USEPA
appears to have recognized this error,, but has erroneously
corrected it with the CAS Nos. reversed (at least according to
Appendix VIII).
The Board has proposed to correct this so that
the CAS Nos. reflect those in 40 CFR 261, Appendix VIII, pending
clarification.
Also in K051, all of the standards following ethylbenzene
appear to have been shifted down one line.
This was not
corrected on the disk.
The Board has proposed to retain the
128—465
76
original text.
A similar offset error appeared in the Federal Register in
the entries following K086, -butylbenzylphthalate.
These appear
to be corrected on the disk.
In K096, USEPA has added an entry for “Trichioroethylene”.
However, this is another name
for the preceding entry
“Trichloroethene”.
The Board has proposed to just add
“Trichlproethylene” as an alternative name to the first entry.
Table C
Technology Codes
This Table is drawn from 40 CFR 268.42,
Table
1.
It defines
acronyms for technologies which are specified in Table D.
The
definitions
of
“RTHRN”
(thermal recovery)
includes a
reference to “40 CFR 260.10
(1),
(6),
(7),
(11), and
(12) under
the
definition
of
‘industrial
furnace”.
As
is
discussed
above
in
connection
with
Section
720.110,
in
the
Administrative
Code,
the
Board
cannot
use
numbering
to
indicate
subordination
within
a
definition set.
Rather, the Board has to use unnumbered
subparagraphs.
Therefore,
in adopting this Table, the Board had
to replace the cross reference with a narrative description of
the types of “industrial furnace” which are included in “RTHRN”.
These are:
Cement
kilns, blast furnaces, smelting, melting and
refining furnaces, combustion devices used to recover
sulfur values from spent sulfuric acid and “other
devices” determined by the Agency pursuant to 35 Ill.
Adm.
Code
720.110,
the
definition
of
“industrial
furnaces”
The USEPA cross reference is now wrong, because of the
changes to the definition of “industrial furnace” discussed above
in the BIF rules.
“(12)” is now “halogen acid furnaces”,
and
“(13)” is “other”.
The Board believes that USEPA intends to
continue referencing “other” for two reasons.’
First, the rule
needs a catch—all.
Second, halogenated compounds usually have a
low BTU value, such that they would not be burned for legitimate
thermal
recovery.
However,
the
Board
solicits
comment.
Table D
Required Treatment Technologies
This Table is derived from 40 CFR 268.42, Table 2.
It
contains treatment standards in the form of required
technologies.
For certain wastes, certain specified treatment is
required.
This differs from the performance-based CCW and CCWE
standards.
In the entry for P002, USEPA appears to have uncorrected the
128—466
77
spelling
of
“l—Acetyl—”.
Also,
in
P093,
“Phenylthiourea”
has
been uncorrected.
In Ul26, the Board has proposed to correct the spelling of
the regulated constituent, as follows:
“Glycidyj~a1dehyde”. This
is wrong in both the USEPA and Board rule.
The corrected
spelling, is taken from 40 CFR 261, Appendix VIII.
Following Table D is a Board Note with important explanatory
material which appears in the USEPA rule as a note to the
equivalent of Table
C.
The Board has moved this to -Table
D,
where the note is used.
Table E
Radioactive Mixed Wastes
This Table specifies required treatment technologies for
radioactive mixed waste.
Although radioactivity is not a
hazardous characteristic under Part 721
261,
wastes which are
hazardous for other reasons may exhibit radioactivity.
Basically, the only change to this Table is the change from
“INCIN.” to “IMERC” for D009.
However, the Board is proposing to
repeal and replace the entire Table with a better text obtained
from
USEPA
in
this
Docket.
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, here~ycertify that the above Proposed Opinion was adopted
on the
/~7
!~-
day of
/~c’~6~j
,
1991,
by
a
vote
of
~.
~-
~
Dorothy M. GU”~,Clerk
Illinois Pollution Control Board
128—467
