ILLINOIS POLLUTION CONTROL
BOARD
December 20,
1990
IN THE MATTER OF:
)
R90—11
RCRA UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(4—1—90 THROUGH 6—30—90)
)
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
111. 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.
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 Sectjon
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 April
1 through June 30,
1990.
The
Federal Registers utilized are as follows:
55 Fed. Reg.
18505
May 2,
1990
55 Fed. Reg.
18726
May 4,
1990
55 Fed. Reg.
19263
May 9,
1990
55 Fed.
Reg. 22684
June
1,
1990
55 Fed.
Reg. 23935
June 13,
1990
55 Fed.
Reg. 25493
June 21,
1990
55 Fed. Reg.
26987
June 29,
1990
In addition, the Board has learned of an error in Section
726.136, which should have been repealed in R86-l, based on 50
Fed. Reg.
49204, November 29,
1985.
This will be corrected in
this Docket.
The Board normally batches USEPA actions into six month
“batches” for adoption in a single docket.
This docket deals
with only three months because the first three months of 1990
were adopted in R90-10, including the TCLP test.
The USEPA amendments include several site—specific
117—271
2
delistings.
As provided in 35
Ill. Adm. Code 720.122(d), the
Board will not adopt site-specific delistings unless and until
someone files a proposal showing why the delisting needs to be
adopted as part of the Illinois program.
EXTENSION OF TIME ORDERS
Section 7.2(b)
of the Act requires that identical in
substance rulemakings be completed within one year after the
first USEPA action in the batch period.
If the Board is unable
to do so
it must enter an “extension of time” Order.
HISTORY OF RCRA,
UST and UIC ADOPTION
The Illinois RCRA, UST (Underground Storage Tanks)
and UIC
(Underground Injection Control) regulations, together with more
stringent State regulations particularly applicable to hazardous
waste,
include the following:
702
RCRA and UIC Permit Programs
703
RCRA Permit Program
704
UIC Permit Program
705
Procedures for Permit Issuance
709
Wastestream Authorizations
720
General
721
Identification and Listing
722
Generator Standards
723
Transporter Standards
724
Final TSD Standards
725
Interim Status TSD Standards
726
Specific Wastes and Management Facilities
728
USEPA Land Disposal Restrictions
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
731
Underground Storage Tanks
738
Injection Restrictions
Special procedures for RCRA cases are included in Parts 102,
103,
104 and 106.
Adoption of these regulations has proceeded in several
stages.
The Phase
I RCRA regulations were adopted and amended as
follows:
R8l—22
45 PCB 317,
February
4,
1982,
6
Ill. Reg.
4828,
April 23,
1982.
R82—18
51 PCB 31, January 13,
1983,
7 Ill. Reg.
2518,
March 4,
1983.
117—272
3
Illinois received Phase
I
interim authorization on May 17,
1982
(47 Fed.
Reg.
21043).
The UIC regulations were adopted as follows:
R8l—32
47 PCB 93, May 13,
1982;
October 15,
1982,
6 Ill.
Reg.
12479.
The UIC regulations were amended in R82-l8, which is
referenced above.
The UIC regulations were also amended in R83—
39:
R83—39
55 PCB 319, December
15,
1983;
7
Ill.
Reg.
17338,
December 20,
1983.
Illinois received UIC authorization February 1,
1984.
The
Board has updated the UIC regulations:
R85—23
70 PCB 311, June 20,
1986;
10 Ill. Reg.
13274,
August
8,
1986.
R86—27
Dismissed at 77 PCB 234, April 16,
1987
(No USEPA
amendments through 12/31/86).
R87—29
January 21,
1988;
12
Ill.
Reg.
6673, April
8,
1988;
(1/1/87 through 6/30/87).
R88—2
June 16,
1988;
12
Ill. Reg.
13700, August 26,
1988.
(7/1/87 through 12/31/87).
R88—l7
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;
14 111. Reg.
11948, July 20,
1990,
effective July 9,
1990.
(1/1/89 through 11/30/89)
R90—5
Dismissed March 22,
1990
(12/1/89 through
12/31/89)
R90-14
Proposed November 8,
1990
(1/1/90 through 6/30/90)
The Phase II RCRA regulations included adoption of Parts 703
and 724, which established the permit program and final TSD
standards.
The Phase II regulations were adopted and amended as
follows:
R82—19
53 PCB 131, July 26,
1983,
7 Ill.
Reg.
13999,
October 28,
1983.
117—273
4
R83—24
55 PCB 31, December 15,
1983,
8
Iii. Reg.
200,
January
6,
1984.
On September
6,
1984,
the Third District Appellate Court
upheld the Board’s actions in adopting R82-19 and R83-24.
(Commonwealth Edison et al.
V.
IPCB, 127 Ill. App.
3d 446;
468 NE
2d 1339
(Third Dist.
1984).)
The Board updated the
RCRA
regulations to correspond with
USEPA amendments
in several dockets.
The period of the USEPA
regulations covered by the update is
indicated in parentheses:
R84—9
64 PCB 427,
June 13,
1985;
9 Ill. Reg.
11964,
effective July 24,
1985.
(through 4/24/84)
R85—22
67 PCB 175,
479, December 20, 1985 and January
9,
1986;
10
Ill. Reg.
968, effective January
2,
1986.
(4/25/84
——
6/30/85)
R86—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-l
September
13, October 18 and November 16,
1989;
13 Ill.
Reg.
18278, effective November 13,
1989
(8/1/88
——
12/31/88)
117—274
S
R89—9
March 8,
1990;
14
Iii.
Reg.
6225, effective April
16, 1990
(1/1/89 through 6/30/89)
R90—2
July
3 and August 9,
1990;
14 Ill. Reg.
14401,
effective August 22,
1990 (7/1/89 through
12/31/89)
R90-10
August 30 and September 13,
1990;
14 Ill. Reg.
16450, effective September
25, 1990
(TCLP Test)
(1/1/90 through 3/31/90)
R90-11
This Docket
(Third Third)
(4/1/90 through 6/30/90)
Illinois received final authorization for the RCRA program
effective January 31,
1986.
The Underground Storage Tank rules were adopted in R86-1 and
R86-28, which were. RCRA update Dockets discussed above.
They are
currently being handled in their own Dockets:
R88—27
April 27,
1989;
13 Ill.
Reg.
9519,
effective June
12,
1989
(Technical standards,
September 23,
1989)
R89—4
July 27,
1989;
13
Ill. Reg.
15010, effective
September
12,
1989
(Financial assurance, October
26,
1989)
R89—lO
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
Proposed November
8,
1990
(1/1/90
—
6/30/90)
The Board added to the federal listings of hazardous waste
by listing dioxins pursuant to Section 22.4(d)
of the Act:
R84—34
61 PCB 247, November 21,
1984;
8 Ill. Reg.
24562,
effective December 11,
1984.
This was repealed by R85-22, which included adoption of
USEPA’s dioxin listings.
Section 22.4(d) was repealed by S.B.
1834.
The Board has adopted USEPA delistings at the request of
Amoco and Envirite:
R85—2
69 PCB 314, April 24,
1986;
10 Ill. Reg.
8112,
effective May
2,
1986.
117—275
6
R87—30
June 30,
1988;
12
Ill.
Reg.
12070, effective July
12,
1988.
The Board has pending a proposal to modify the delisting
procedures to allow the use of adjusted standards in lieu
of.
site—specific rulemakings:
R90-17
Proposed July 19, 1990
The Board has procedures to be followed in cases before it
involving the RCRA regulations:
R84-lO
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:
R8l—25
60 PCB 381, October 25,
1984;
8 Ill. Reg.
24124,
December
4,
1984;
R83—28
February 26,
1986;
10 Ill.
Reg.
4875,
effective
March
7,
1986.
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.
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.
117—276
7
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 aRCRA permit for
each HWM facility.
However, many “existing units” are still in
“interim status”.
Decisions involving interim status are often
more ambiguous as to whether they are permit actions.
In a few instances in identical in substance rules decisions
are not appropriate for Agency action pursuant to a permit
application.
Among the considerations in determining the general
division of authority between the Agency and the Board are the
following:
1.
Is the person making the decision applying a Board
regulation,
or taking action contrary to (“waiving”)
a
Board regulation?
It generally takes some form of
Board action to “waive”
a Board regulation.
For
example, the Agency clearly has authority to apply a
regulation which says “If A, do X;
if not A, do 1”.
On the other hand, regulations which say “If not A, the
state shall waive X” are more troubling.
2.
Is there a clear standard for action such that the
Board can give meaningful review to an Agency decision?
3.
Is there a right to appeal?
Agency actions are
generally appealable to the Board.
4.
Does this action concern a person who is required to
have a permit anyway?
If so there is a pre—existing
permit relationship which can easily be used as a
context for Agency decision.
If the action concerns a
person who does not have a permit,
it is more difficult
to place the decision into a procedural context which
would be within the Agency’s jurisdiction.
5.
Does the action result in exemption from the permit
requirement itself?
If so, Board action is generally
required.
6.
Does the decision amount to “determining, defining or
implementing environmental control standards” within
the meaning of Section 5(b)
of the Act?
If so,
it must
be made by the Board.
Once it is determined that a decision must be made by the
Board, rather than the Agency,
it
is necessary to determine what
procedural context is best suited for that decision.
There are
117—277
8
four common classes of Board decision:
variance, adjusted
standard, site specific rulemaking and enforcement.
The first
three are methods by which a regulation can be temporarily
postponed (variance)
or adjusted to meet specific situations
(adjusted standard or site specific rulemaking).
Note that there
are differences in the nomenclature for these decisions between
the USEPA and Board regulations.
These differences have caused
past misunderstandings with USEPA.
A variance
is initiated by the operator filing a petition
pursuant to Title IX of the Act and 35 Ill. Adm. Code 104.
The.
Agency files a recommendation as to what action the Board should
take.
The Board may conducts
a public hearing, and must do so if
there
is an objection to the variance.
Board variances are:
temporary;
based on arbitrary or
unreasonable hardship;
and, require a plan for eventual
compliance with the general regulation.
To the extent a USEPA
decision involves these factors,
a Board variance
is an
appropriate mechanism.
A variance is not an appropriate mechanism for a decision
which is not based on arbitrary or unreasonable hardship,
or
which grants permanent relief without eventual compliance.
To
grant permanent relief, the Board needs to grant a site specific
regulation or an adjusted standard pursuant to Sections 27 or
28.1 of the Act, and 35
Ill. Adm. Code 102 or 106.
DETAILED DISCUSSION
A Section—by—Section discussion of the proposed amendments
appears below.
The federal actions involved in this rulemaking
are summarized as follows:
May 2,
1990
Listing of dimethylhydrazine wastes
May 4,
1990
Correction to listing criteria
May 9,
1990
Correction to liner requirements
June
1,
1990
Third third land disposal bans
June 13,
1990
Correction to first third
June 21,
1990
Process vents and equipment leaks
June 29,
1990
Corrections to TCLP test
The Board has already addressed the June 29 corrections in
R90-l0, which included the TCLP test.
Also, the Board may
address the May
4 corrections to listing criteria in R90-17 prior
117—278
9
to final adoption in this matter.
The rules have been edited to establish a uniform usage with
repect 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 to something,
but that someone is not
the subject of the sentence.
“Will” is used when the Board
obliges itself to do something.
“May”
is used when a provision
is optional.
Some of the USEPA rules appear to say something
other than what was intended.
Others do not read correctly when
“Board” or “Agency” is substituted into the federal rule.
The
Board does not intend to make any substantive change in the rules
by way of these edits.
SECTION-BY-SECTION DISCUSSION
Part 703:
RCRA
Permits
This Part governs applications for RCRA permits.
It is
closely coordinated with the
I-IWM facility standards in Part 724,
below.
Section 703.183
This Section is drawn from 40 CFR 270.14, which was amended
at
55 Fed.
Reg. 25454.
The amendments add cross references
relating to the new Subparts AA and BB to Part 724, concerning
process vents.
Section
703.210
This new Section is drawn from 40 CFR 270.24, which was
added at 55 Fed.
Reg.
25454.
This Section sets out the Part B
application requirements for process vents.
40 CFR 270.24(d) (2)
has an incorrect cross reference to
“S264.103(k)”.
The Board has proposed to correct this to the
equivalent of S264.1033(k), but solicits comment.
Subsection
(d) (3) references
APT.I 415, “or other engineering
texts acceptable to the Regional Administrator”.
The relates to
Section 724.935, discussed below.
The Board has rendered this as
“approved by the Agency”,
consistent with the discussion below.
Section 703.211
This new Section is drawn from 40 CFR 270.25, which was
added at 55 Fed. Reg.
25454.
This Section sets out the Part B
application requirements for other types of vents.
40 CFR 270.25(d) provides that the Regional Administrator
“may request further documentation before deciding if compliance
117—279
10
has been demonstrated.”
There are several problems with this
language.
The Board has proposed to reference
35 Ill. Adm.
Code
705.122, and to provide that “the Agency shall request further
documentation if necessary to demonstrate compliance”.
Subsection
(e) (3) has the same problems as Section
703.210(d) (3), discussed above.
Section 703.App. A
This Appendix is drawn from.Appendix
I to 40 CFR 270.42,
which was amended at 55 Fed. Reg.
22719.
This adds item B.1.b.
to the list of types of permit modifications.
Part 720:
Incorporations by Reference
Section 720.111
This Section is drawn from 40 CFR 260.11, which was amended
at 55 Fed. Reg.
25454.
This adds incorporations of documents
related to process vent emissions in Parts 724 and 725, below.
This Section is subject to amendment in R90-17, which is pending.
The áhanges in that Docket are shown in the Proposal, but will
probably be made prior to adoption of this Docket.
The Board
will reformulate the proposal to use R90—17 as the new base text.
Most of the new incorporations are ASTM Methods.
The Board
has placed these into numerical order, and will reference them by
number in the text of the rules.
The Board has moved the
existing reference to ASTM D3828 into its proper place.
The ASTM standards are updated on
a five year cycle.
The
final two digits indicates the edition of the standard.
The
Board has proposed to update several of the ASTM standards to
cite to the currently available method.
The Board
solicits
comment as to whether it might be essential to reference the
older methods.
Commenters seeking to use out—of—date methods
must provide the Board with a copy of the method,
since the out-
of-date methods are no longer available to the Board.
The
updated methods are ASTN D93, D1946, .D2388 and E168.
The USEPA amendment also references “APTI 415”, which it
says is available from NTIS.
The document is not
in fact
available from NTIS.
The Board has discovered that the document
is available through the Air and Waste Management Association, to
which the Board has cited.
The Board has also added references to 40 CFR 60 and 61,
Subpart V, which are also air analysis methods cited by USEPA in
the body of the process vent emission rules discussed below.
At
the State level these are incorporations by reference,
which
belong in this Section.
The Board has proposed to cite to the
117—280
1.
1990 Edition of the CFR for these methods, and proposed to update
all CFR citations to the 1990 Edition.
Part 721:
Hazardous Waste Lists
Section 721.104
This Section is drawn from 40 CFR 261.4, which was amended
at 55 Fed. Reg. 26986,
June 29,
1990.
This amendment modifies Section 721.104(b) (10),
the
exclusion for petroleum contaminated media from lIST corrective
action, which was added in connection with the TCLP test in R90-
10.
As modified, the exclusion applies only to waste which fails
the TCLP test because of the new parameters D0l8 through D043.
In other words,
UST waste which would have failed the former EP
Toxics test remains a hazardous waste.
This really is a correction to the USEPA TCLP rulemaking,
and could have been addressed in R90-10, had the correction been
noted in time.
Because this correction was not made in R90—10,
there will be a minor divergence between the State and USEPA
definitions of hazardous waste until this rule is filed.
However, because the TCLP test is HSWA-driven, the USEPA rules
are immediately effective in Illinois.
Therefore, any UST waste
which would fail the EP toxics test is hazardous in Illinois
under federal law, even though the State exclusion is broader.
Section 721.106
This Section is drawn from 40 CFR 261.6, which was amended
at 55 Fed. Reg.
25493, which concerns process vents.
This Section includes the exclusion for recycling.
Facilities which store hazardous waste prior to recycling are
subject to the process vent rules
in 35
Ill. Adm. Code 724 and
725.Subparts AA and BB,
in addition to the basic facility
requirements in Subparts A through L.
In addition,
at facilities
otherwise subject to the RCRA permit requirement, the recycling
process itself is subject to the new Subparts.
40 CFR 261.6(d) speaks of “facilities subject to RCRA
permitting requirements”.
The Board has replaced this with a
more specific reference to Part 703.
Section 721.111
This Section is drawn from 40 CFR 261.11, which was amended
at 55
Fed.
Reg.
18726.
This Section is subject to amendment in
R90-17.
Although the text of the changes in R90-17
is presented
in the proposal,
those changes will probably be made prior to
adoption of this Docket.
117—281
12
The change is deletion of “not” to correct an editorial
error in subsection
(a) (3).
Since this new language is proposed
in P90-17,
no strike out appears in this Proposal.
Indeed, the
Board will probably make the correction in P90-17, and drop this
Section from this Docket.
Sections 721.120 through 721.123
These Sections are drawn from 40 CFR 261.20 through 261.23,
which were amended at 55 Fed. Reg.
22684.
There are two basic methods of listing hazardous waste.
Subpart C lists wastes by characteristic (“characteristic
waste”).
Subpart D lists waste by the name of the waste or
process which produces the waste (“listed waste”).
Under the
existing rules,
a listed waste
is assigned the F,
K, U or P
number under which the waste is listed, even if the waste is also
a characteristic waste.
This has been changed so that such a
waste will now have both an
F,
K, U or P listed number, plus a D
characteristic number.
Note that this will tend to result in
double counting of wastes for statistical purposes.
These Sections have not been amended since 1982,
and hence
require much editing to bring them into compliance with more
recent codification requirements.
Section 721.121 includes two references to ASTM Standards.
The final two digits indicate the edition of the ASTM Standard.
These are now specified in the incorporation by reference
Section, which is cross-referenced.
Deleting the dates from the
substantive rules eases the task of periodically updating these
references.
Also, the citation to “ASTM D-3278” has been
corrected to read “ASTN D-3228”.
The reference is incorrect in
40 CFR 260.11.
Section 721.124
This Section is drawn from 40 CFR 261.24, which was amended
at 55 Fed.
Peg.
22684 and 26986.
This Section defines the
“toxicity characteristic”,
which was the main topic of R90-10.
The amendment at 55 Fed.
Peg.
22684
is the same as is
discussed in connection with Section 721.120 et seq.
(double
counting of listed waste).
The amendment at 55 Fed. Peg.
26986
corrects the listing of “heptachlor
(and its epoxide)”.
The
Board noted this error and corrected it
in P90—10.
Section 721.131
This Section is drawn from 40 CFR 261.31, which was amended
at 55 Fed. Peg.
22684.
This adds listing F039 for leachate from
117—282
13
the treatment,
storage or disposal of mixed hazardous wastes.
This is related to the double counting changes discussed in
connection with Section 720.120 et seq.
Section 721.132
This Section is drawn from 40 CFR 261.32, which was amended
at 55 Fed. Reg.
18505.
This adds listings Kl07 through KilO,
various wastes from the production of 1,l-dimethylhydrazine.
K108 through KilO refer to “production of 1,1-
dimethylhydrazine from carboxylic acid hydrazides”.
K107 refers
to production from “hydrazines”.
The Board has corrected this
apparent error in the USEPA text.
Section 721.133
This Section is drawn from 40 CFR 261.33, which was amended
at 55 Fed. Peg.
22684.
This adds to Section 721.133(c)
a cross
reference to subsection
(f).
Section 721.Appendix
C
This Section is drawn from 40 CFR 261, Appendix III, which
was amended at 55 Fed. Peg.
18496.
The Board has updated the
incorporation by reference to include the analytical methods for
1, 1-dimethylhydrazine.
Section 721.Appendix G
This Section is drawn from 40 CFR 261, Appendix VII, which
was amended at 55 Fed. Peg.
18496 and 22684.
The former adds
1,l-dimethylhydrazine as the constituent which caused USEPA to
list K107 through KilO.
The latter adds the basis for listing
the mixed waste leachates, F039.
The reference to “40 CFR
268.43, Table CCW” has been replaced with “35 Ill.
Adm. Code
728.Table B”, the State equivalent of Table CCW.
Part 722:
Generator Requirements
Section 722.111
This Section is drawn from 40 CFR 262.11, which was amended
at 55 Fed. Peg.
22684.
This Section is the skeleton of the hazardous waste
determination process, giving form to the definition in Part 721.
Each person who generates a “solid waste” must determine if the
waste is a hazardous waste.
The person first checks for specific
exclusions,
and then for
a listing in Subpart D of Part 721.
Under the existing rules,
the process stops
if a listing
is
found.
Under the amendments to subsection
(C), however, the
117—283
14
generator must now also check for characteristics,
even if the
waste is listed.
This is consistent with the amendments to
Section
721.120 et seq., discussed above.
Section 722.134
This Section is drawn from 40 CFP 262.34, which was amended
at 55 Fed. Reg. 22684.
Section 728.134(a) (4) has been amended to
require generators storing wastes to perform analyses required
under
35 Ill.
Adm. Code 728.107.
Part 724:
Standards for Permitted
11W)! Facilities
Section 724.113
This Section
is drawn from
40
CFR 264.13, which was amended
at 55 Fed. Reg. 22684; and 55
Fed. Peg.
25454.
This Section
prescribes the general waste analysis requirements for TSD
facilities.
The amendment at 55 Fed.
Peg.
22684 adds to the comment
following subsection
(a) (2)
a reference to the analytical
requirements in 35 Ill.
Adm. Code 728.107.
The amendment at 55
Fed. Peg.
25454 adds to Section 724.113(b) (6) references to the
process vent standards in Subparts AA and BB.
Section 724.115
This Section is drawn from 40 CFR 264.15, which was amended
at 55 Fed. Peg.
25454.
This Section prescribes the general
requirements for “inspection” of TSD units by the owner or
operator.
The amendments add references to the process vent
standards below.
Section 724.173
This Section
is drawn from 40 CFR 264.73, which was amended
at 55 Fed. Peg.
25454.
This Section prescribes the contents of
the
HWM
facility operating record.
The amendments add the
process vent rules as a possible source of data which must be
recorded.
40 CFR 264.73(b) (6)
requires the recording of data
concerning monitoring and corrective action “when required by
Subpart F ~p~” certain other listed Sections.
As worded, the
USEPA rule could be construed as requiring the data to be
recorded only if it is required under Subpart F and all of the
listed Sections.
When the Board adopted this Section,
it
replaced “and” with “or” to make it clear that Subpart
F,
or any
one of the listed Sections could be the source of the
requirement.
The Board has retained this revision in the
amendment.
117—284
15
Section 724.177
This Section is drawn from 40 CFR 264.77, which was amended
at 55 Fed. Reg.
25454.
This Section is a broadside reference to
additional reports required in Part 724.
The process vent rules
have been added as a possible source.
Section 724.321
This Section is drawn from 40 CFR 264.221, which was amended
at 55 Fed.
Reg.
19262.
This Section includes design and
operating requirements for surface impoundments.
The USEPA amendments concern subsection
(C), which requires
a double liner and leachate collection and removal systems under
new impoundments.
The amendments require this design for waste
received after issuance of the
RCRA
permit with respect to
facilities which filed
a Part B application after November 8,
1984.
The USEPA rule requires the Part B to have been filed with
the Regional Administrator.
The Board has proposed to require
the Part B to have been filed with either USEPA or the Agency,
but solicits comment as to this wording.
The USEPA rule includes
a typo, which the Board has proposed
to £ix.
40 CFR 264.221(c)
actually says “after insurance of the
permit”, rather than “issuance”.
In addition, subsection
(e)
contains a reference to the “EP toxicity characteristic”,
which
was replaced with the “toxicity characteristic”
in P90-10.
This Section has not been amended since 1986,
and has
several minor editorial problems which do not conform with
current codification requirements,
or with the Board’s editorial
formats.
The most complex ones involve insertion of subsection
headings for subsections
(e) (2)
and
(e) (2) (A).
Codification
rules now prohibit empty levels of subdivision.
The Board
solicits comment as to whether the headings adequately describe
the contents.
Sections 724.329,
724.356 and 724.381
These Sections are drawn from 40 CFR 264.229, 256 and 281,
which were amended at
55
Fed. Peg.
22683.
They deal with
ignitable and reactive waste in surface impoundments, piles and
land treatment units.
The amendments add cross references to the
land disposal bans of Part 728.
Section 724.401
This Section is drawn from 40 CFR 264.301, which was amended
117—285
16
at 55 Fed. Reg.
19262.
This Section deals with design and
operating requirements for landfills.
The amendment is similar
to that discussed with respect to Section 724.321,
above.
The
requirements of subsection
(c) apply where the Part B application
was received by the Agency or USEPA after November 8,
1984.
The
Board again solicits comment as to the wording of this provision.
This Section was amended in R90—1O to remove the references
to the EP Toxicity test.
Section 724.412
This Section is drawn from 40 CFR 264.312, which was amended
at 55 Fed. Peg.
22683.
It deals with
placement of ignitable or
reactive waste into a landfill.
The amendment cross references
Part 728, and is similar to the amendments to Section 724.329,
above.
The existing language in 40 CFR 264.312(a)
and 35 Ill. Adm.
Code 724.412(a)
include the phrase “unless the waste is treated,
rendered or mixed before or immediately after placement in a
landfill so that
...“
This has been omitted from the amended
language.
However, this could represent an editorial error by
USEPA,
since the omitted language appears to govern conditions
(a) (1) and
(2).
Alternatively, the new cross reference to Part
728 may be replacing the existing language.
The Board has
proposed to interpret the omission as an editorial error, but
solicits comment.
Section 724.416
This Section is drawn from 40 CFR 264.316, which was amended
at 55 Fed. Reg.
22683.
This Section deals with lab packs.
The
amendments add subsection
(f), which cross references the lab
pack limitations of Part 728,
and authorizes the use of fiber
drums for lab packs destined for incineration.
The existing Board Section has a subsection
(f) which cross
references the additional State limitations on labpacks in Part
729.
This has been relettered to
(g).
SUBPART AA:
AIR EMISSIONS FROM PPOCESS VENTS
USEPA has added two new Subparts, AA and BB, dealing with
air emissions from process vents and equipment leaks
in hazardous
waste management
(HWN) units.
These Subparts are essentially repeated in Part 725, which
applies to interim status facilities,
and which corresponds with
40 CFR 265.
In the discussion below, the Board will attempt to
highlight the differences
between
the
Parts.
117—286
17
USEPA has assigned to these Subparts numbers beginning with
40 CFR 264.1030.
These cannot be translated into State Section
numbers according to the simple formula used in the rest of this
Part.
The Board has proposed to use numbers beginning with
Section 724.930.
However, this should correspond with 40 CFR
264.830 under the formula.
This simple fix will break
down
if
USEPA either adopted something with the numbers starting with 40
CFR 264.830, or if it adopted something with numbers beyond
264.1100.
The Board has considered following alternative
numbering schemes, and solicits comment.
USEPA assigns Section numbers with differing numbers of
digits beyond the decimal point
(or period),
i.e.
264.1,
264.9,
264.11,
264.91,
264.111.
The Board avoids this,
since these
numbers are confusing to people accustomed to dealing with
numerical data.
Such persons expect to find the Sections in
numerical order,
i.e.:
264.1,
264.11,
264.111,
264.9,
264.91.
This confusion is avoided if Section numbers always have the same
number of digits beyond the decimal point.
An alternative method
of assigning numbers would be for the
Board to violate the convention
of
using the same number of
digits.
In this Part, the Board could just assign “Section
724.1030” to 40 CFP 264.1030.
A second alternative would be to promote all of the Sections
in the Part to four digits, following a formula analogous to that
presently used.
40 CFR 264.1 would correspond with Section
724.1001, and 264.1030 with 724.1130.
The problem with this is
that it would involve a massive overhaul of Parts 724 and 725.
The main difference between Parts 724 and 725
is that, while
the former is applied in the context of
RCRA
permit issuance
under Part 703, the latter
is self-implementing.
However, Part
725 includes several decisions to be made by the Agency.
The
USEPA rules are vague as to the procedural context for these
decisions.
These issues will mainly be discussed in connection
with Part 725 below.
These Subparts include many “shall, must, will and may”
edits.
Most of these are along the lines discussed in general
above.
Most involve using “shall” for an animate, and “must” for
an inanimate subject.
These edits will only be discussed in
detail if their is some question as to USEPA’s intent, or if the
edit departs from the general rules.
Section 724.930
This new Section is drawn from 40 CFR 264.1030 which was
added at 55 Fed. Peg. 25454.
It states the applicability of
Subpart AA, which deals with air emission standards from process
vents associated with distillation, fractionation, thin—film
117—287
18
evaporation, solvent extraction,
or air or steam stripping
operations which manage hazardous waste with organic
concentrations of “at least”
10 ppmw.
Section 724.930(c)
governs operators who already have
RCRA
permits.
Conditions pursuant to these Subparts must be
incorporated into the permit when it is reviewed or reissued.
This subsection naturally has no counterpart in Part 725.
40 CFR 264.1030(c)
requires
RCRA
permits to incorporate
these requirements “when the permit
is reissued under
S
124.15 or
reviewed under
§ 270.50.”
The Board has cited to 35 Ill. Adm.
Code 705.201 and 702.161, which appear to be the equivalents, but
solicits comment.
Section 724.931
This new Section is drawn from
40 CFR 264.1031 which was
added at 55 Fed. Peg.
25454.
It states definitions for this and
the following Subparts, and for Part 725.
The Board has added
definitions for the many abbreviations and acronyms used in the
USEPA rules.
Section 724.932
This new Section is drawn from
40
CFR 264.1032 which was
added at 55 Fed. Reg.
25454.
This Section includes the performance standard for process
vents.
The operator must either reduce total organic emissions
from the facility to below
3 pounds/hour and 3.1 tons per year,
or achieve 95 weight percent control of all affected process
vents.
40 CFR 264.1032(c)
provides that determinations of emissions
“may be” based on engineering calculations or performance tests.
The Board has rendered this as “must
...
either”,
since the
option is really as between two choices.
There is a minor difference in wording between Section
724.932(d)
and 725.932(d),
which is derived from the
corresponding USEPA rules, and which may represent an editorial
error.
While the former refers to the “procedures in” Section
724.934(c),
the latter refers to the “test methods” in the
corresponding interim status Section.
The Board
solicits
comment.
Section 724.933
This new Section is drawn from 40 CFR 264.1033 which was
added at 55 Fed.
Peg.
25454.
117—288
19
40 CFR 264.1033(b)
requires that control devices be designed
and operated to recover organic vapors with an efficiency of 95
weight percent unless the total organic emission limits
(3.1 tons
per year)
“can be” attained with a lower efficiency.
As is
discussed at several points below,
“can be” seems to allow the
operator to go to the lower efficiency without actually building
and operating the equipment to meet the 3.1 ton standard.
The
Board therefore has replaced “can be” with “is”.
There is a minor difference in wording between Sections
724.933(c)
and 725.933(c), which may represent a typographical
error by USEPA.
While
the former refers to the “flame zone”, the
latter refers to the “flame combustion zone”.
A similar
difference occurs in subsection
(f) (1), where “record of stream
flow” appears as “record of vent stream flow”
in Section
725.933(f)(1).
A larger difference occurs later in the same
subsection,
in which “before the point at which the vent streams
are combined” appears as “before being combined with other vent
streams”.
Another difference appears in Section 724.933(f) (2) (G),
in
which the phrase “such as a fixed-bed carbon adsorber” appears at
a different location in Part 725.
A final difference
is that Section 724.933(i), which allows
the permitted facility to monitor alternative operational or
process parameters,
has no corresponding Part 725 equivalent,
apparently because USEPA wants to allow this only for the
permitted facilities.
The subsequent subsections differ in
labels, which causes several differences in cross references.
40 CFR 264.1033(1)
provides that an alternative parameter
“may be monitored if
it can be demonstrated that another
parameter will ensure” that the device is operated in conformance
with the standards.
There are two problems with this which the
Board has proposed to remedy in Section 724.933(1).
First, the
“can be” could be construed as allowing the operator to
substitute parameters if he believes he “can demonstrate”,
without actually having made the demonstration.
Second, the
tJSEPA language doesn’t require
a linkage between the alternative
which “can be” demonstrated, and the alternative to be monitored.
I.e., the operator could demonstrate that Y was a good substitute
for X, and then monitor
Z.
The Board has therefore rendered this
as “if the operator demonstrates that the other parameter will
ensure...”
This Section includes the first of
a number of formulas.
The Board has proposed to edit these in several ways to make them
conform with Administrative Code Division requirements, and to
make them generally easier to read,
type and translate into other
word processing systems.
These edits include the elintinati?n of
unusual characters,
and unnecessary subscripts and superscripts.
117—289
20
Generally the Board has attempted to write these formulas as they
would appear in many program statements or spreadsheet windows,
so that they will be widely understood without explanation.
Also, as is discussed above,
the definitions of abbreviations and
acronyms have been moved to the definitions Section.
“*“
has been used to indicate multiplication.
The Board has
defined a function,
“SUM(Xi)”,
avoiding the need for Greek
letters, and subscripted or superscripted indices.
The function
“LOG(X)”
is also defined as the base 10 logarithm.
40 CFR 264.1033(e) (2),
in the definition of
“Hi”,
states
that heats of combustion “may be” determined using ASTM D2382
if
published values are not available.
The Board has rendered this
as “must be”, since the operator really has no alternative if the
published values are not available.
The Board has also corrected
a typographical error
(“kcal/9mole” should be “kcal/gmole”).
40 CFR 264.1033(f) (3) has an editorial error which the Board
has proposed to correct.
“P)aragraphs
(1)
and
(2)
of this
section” probably means “subsections
(f)(l)
and
(2).”
40 CFP 264.1033(k) (1)
has an apparent typo, which the Board
has proposed to correct.
“Specified
as
§ 264.1034(b)” should
probably be “specified at” the Section.
40 CFR 264.1033(k) (2) requires monitoring “at other times as
requested by the Regional Administrator”.
The Board has proposed
to render this as “as specified in the
RCRA
permit”.
If this is
not what the USEPA rule means,
some sort of procedure needs to be
specified by which the Agency can make this request.
Section 724.934
This new Section is drawn from 40 CFR 264.1034 which was
added at
55 Fed. Peg.
25454.
Formulas appear following Section 724..934(c)(1)(D).
The
parameters in the formulas have been changed to simple letters,
avoiding the need for subscripts,
and confusion as to whether two
letters represent a single parameter,
or the product of two.
The
numerical constant has been moved to the front, avoiding the need
for braces to indicate that it is outside the summation.
The
constant has been replaced with a letter
(“K”), with the value
moved out of the formula to the definitions.
The value
(0.0416 X
1o_6)
is equivalent to 4.16 X
10_B, which has been written as
“4.16 E —8”,
as it would appear in many programming languages and
spreadsheets.
The Board believes that this has passed into
common usage so that no special definition is needed, but
solicits comment.
117—29
0
21
The exponent in the value appears to be “—6” in the text
from which the Board is working, but this is barely legible.
In the definitions of parameters in 40 CFR
264.1034(c) (1) (D),
“Q”
is measured by “Method 2”, which the Board
takes to be a reference to Method
2 in 40 CFR 60.
40
CFR
264.1034(c)
(4) provides for the average of three runs
for determining compliance.
However,
in the event a sample is
lost,
compliance “may, upon the Regional Administrator’s
approval” be determined based on two runs.
The Board has left
this as “may”,
since it appears that the operator has an option
to repeat the third run.
This provision also poses a question as
to the mechanism by which the Agency would “approve” the two run
option.
Since this Section would apply to permitted facilities,
the Board assumes that the approval would come either in the
RCRA
permit, or pursuant to procedures specified in the permit.
In
Section 724.934(c) (4), the Board has therefore left this as
“approves”,
but solicits comment.
40 CFR 264.1034(d) (2)
deals with documentation establishing
that a wastestream has an organic concentration less than 10
ppmw.
Subsection
(iii) allows prior speciation analysis where it
“can also be documented” that no process changes have occurred.
In Section 724.1034(d) (2) (C), the Board has rendered this as “is
documented”, since the USEPA language
is subject to the
interpretation that the operator need actually document this only
if challenged after the fact.
40 CFR 264.1034(f)
references “Method 8240”, which the Board
takes to be a reference to that Method in SW 846.
Section 724.935
This new Section is drawn from 40 CFR 264.1035 which was
added at 55 Fed. Peg.
25454.
40 CFR 264.1035(b) (4) (iii)
requires engineering calculations
to be based on APTI 415 or “other engineering texts acceptable to
the Regional Administrator”.
This poses two problems in Section
724.935(b)(4)(C).
First,
the USEPA language talks of
“approvable” texts, with no indication as to how the operator
would determine what is “approvable”, other than to get them
approved.
The Board has therefore used the term “approved”.
Second, there is no procedure specified for .approval.
.
As the
Board understands this Section, the calculations would be a part
of the RCRA permit application, such that the approval would be
subsidiary to the Agency’s actions on the application.
The Board
has therefore left this as “approved by the Agency”, but solicits
comment.
Section 724.935(b)
(4) (C)
also
provides that documentation by
117—291
22
the manufacturer “may be used” to comply.
The Board has left
this as “may”, since
it appears to be a true option for the
operator as to whether to use the manufacturer’s calculations, or
prepare its own.
40 CFR 264.1035(b) (4) (v) requires a statement certifying
that the control device is designed to operate at better than 95
efficiency,
unless the total organic emission rate
(3.1 tons per
year)
“can be” attained by a less efficient control device.
The
USEPA language leaves open the possibility that an operator could
install equipment which could theoretically reduce emissions to
below the 3.1 tons, but fail to actually achieve that level.
In
Section 724.935(b) (4) (E) the Board has replaced “can be” with
“are”
There
is a difference in a cross reference in 40 CFR
264.1035(c) (5) and 265.l035(c)(5).
While the former references
“paragraph
(4)”,
the latter references “(3)”.
This difference
appears to be an error
in the USEPA text for 40 CFR
265.1035(c)(5).
The Board takes these references as being to
subsection
(c) (4).
The text of Sections 724.935(c) (6)
and
(7) differ from the
corresponding texts in Part 725.
While the former are stated in
the singular, the latter are plural.
This appears to bean
editorial error in the USEPA text.
The Board has proposed to
follow the USEPA text,
in that there appears to be no difference
in meaning.
Section 724.936
This new Section is drawn from 40 CFR 264.1036 which was
added at 55 Fed. Peg.
25454.
It requires a semi-annual report.
This Section has no counterpart in Part 725.
40 CFR 264.1036(a) (2)
includes a long list with very little
punctuation.
The Board has proposed to break this up into
subsections to improve readability.
However,
it is not fully
clear how the list is supposed to be broken up (another argument
for breaking it up).
The Board solicits comment as to whether
the arrangement adequately meets USEPA’s intent.
SUBPART BB:
AIR EMISSIONS FROM EQUIPMENT
LEAKS
Section 724.950
This new Section is drawn from 40 CFR 264.1050 which was
added at 55 Fed.
Peg.
25454.
It states the applicability of
Subpart BB, which establishes air emission standards for leaks
from equipment which contacts hazardous waste with organic
concentrations “at least”
10 percent
by weight.
It applies to
117—292
23
units which are subject to the
RCRA
permit requirement, and to
recycling units located on facilities with units which are
subject to the permit requirement.
Section 724.950(c) governs operators who already have
RCRA
permits.
Conditions pursuant to these Subparts must be
incorporated into the permit when it is reviewed or reissued.
This subsection naturally has no counterpart in Part 725.
Section 724.951
This new Section is drawn from 40 CFP 264.1051 which was
added at 55 Fed. Reg.
25454.
Section 724.952
This new Section is drawn from 40 CFR
264.1052 which was
added at 55 Fed. Peg.
25454.
40 CFR 264.1052(e) (3)
includes a reference to “paragraph
(e) (2)”.
The corresponding Part 265 provision references
“(a)(2)”.
The reference appears to bewrong in one Part or the
other,
but it is not clear which.
The Board has proposed to
follow the USEPA text,
but solicits comment as to whether there
might be an error.
Section 724.953
This new Section is drawn from
40 CFR 264.1053 which was
added at 55 Fed. Reg.
25454.
Section 724.954
This new Section is drawn from 40 CFR
264.1054 which was
added at 55 Fed.
Reg.
25454.
Section 724.955
This new Section is drawn from 40 CFR 264.1055 which was
added at 55 Fed. Reg.
25454.
Section 724.956
This new Section is drawn ~from40 CFP 264.1056 which was
added at 55 Fed.
Peg.
25454.
Section 724.957
This new Section is drawn from 40 CFR 264.1057 which was
added at 55 Fed. Peg. 25454.
40 CFR 264.1057 requires monthly leak inspection of valves
117—293
24
in light liquid service.
If no leak
is detected, the operator is
allowed to go to quarterly inspection,
until a leak is detected.
40 CFR 264.1057(c) (1)
expresses this by saying that the valve
“may be monitored” quarterly,
apparently giving the operator the
option of monitoring either monthly or quarterly.
However, the
language
is subject to the interpretation that the operator can
elect to either monitor quarterly or not at all.
The Board has
therefore proposed to word this as “must be monitored” quarterly.
The option of continuing monthly monitoring does not need to be
stated,
since the operator always has the option of employing
more extensive monitoring than required by the rules.
Section 724.958
This new Section is drawn from 40 CFR 264.1058 which was
added at 55 Fed. Peg.
25454.
Section 724.959
This new Section
is drawn from 40 CFR 264.1059 which was
added at 55 Fed. Reg.
25454.
40 CFR 264.1059 has several provisions to the effect that
delay of repair “will be allowed”.
This has been shortened to
“is allowed” to avoid interpretations USEPA probably did not
intend.
Section 724.960
This new Section is drawn from 40 CFR 264.1060 which was
added at 55 Fed.
Peg.
25454.
Section 724.961
This new Section is drawn from 40 CFR 264.1061 which was
added at 55 Fed. Peg. 25454.
Section 724.961(d)
differs from Section 725.961(d)
as to the
placement of “no longer”
in the sentence.
Since there appears to
be no difference
in meaning, the Board has followed the USEPA
text in the respective Parts.
Section 724.962
This new Section is drawn from 40 CFR 264.1062 which was
added at 55 Fed.
Peg.
25454.
Section 724.963
This new Section is drawn from 40 CFR 264.1063 which was
added at 55 Fed. Reg.
25454.
117—294
25
40 CFR 264.1063(d) (3)
allows use of prior analytical results
on the same wastestream where it “can also be” documented that no
process changes have occurred.
The Board has rendered this as
“is” documented, to make it clear that the operator must actually
document this in advance.
40 CFR 264.1063(f)
includes the following provision:
“When an
...
operator and the Regional Administrator do
not agree on whether a piece of equipment contains
waste with organic concentrations at least 10 percent
by weight, the procedures of paragraph
(d) (1)
or
(d) (2)
...
can be used to resolve the dispute”
There are several problems with this.
First,
as
is
discussed elsewhere, USEPA sometimes uses “test methods” instead
of “procedures”.
Second, what does USEPA mean by “can be”.
40
CFR 264.1063(d)
already said the operator had to determine the
organic concentration this way.
Moreover, dispute resolution is
governed by 40 CFR 124 and 270, not 264.
Although this entire
provision appears to be redundant, the Board has proposed to
leave it in, but with “must be” substituted for “can be”.
40 CFR 264.1063(h)
provides that vapor pressures “may be”
obtained from standard reference texts or determined by ASTM D-
2879.
In Section 724.963(h),
the Board has rendered this as
“must
...
either”,
since the option is really as between two
choices.
Section 724.964
This new Section is drawn from 40CFR 264.1064 which was
added at 55 Fed. Peg.
25454.
40 CFR 264.1064(c)
specifies actions to be taken when leaks
are specified by several Sections.
The USEPA rule connects the
list of Sections with an “and”, making
it subject to the
interpretation that the leak must be detected under all of the
Sections.
The Board has rendered this as “or” to avoid this
interpretation.
Section 724.964(f)
deals with recordkeeping requirements for
equipment other than that specifically regulated in this Subpart.
40 CFR 264.1064 differs from Section 265.1064(f)
in that, while
the Regional Administrator specifies “appropriate” requirements
in the RCRA permit for the permitted facility, the operator
records “information indicating proper operation and maintenance”
in the operating record for the interim status facility.
The
Part 264 requirement lacks a standard by which the Agency
determines what is “appropriate”.
The Board has proposed to
borrow the “information indicating proper operation and
maintenance” standard from Part 265.
However,
in the context of
117—295
26
Part 724,
it will be a standard for Agency action, rather than a
self—implementing rule.
The Board solicits comment.
Section 724.965
This new Section is drawn from 40 CFR 264.1065 which was
added at 55 Fed. Peg.
25454.
This Section, which sets reporting requirements, has no
counterpart in Part 725.
PART 725
STANDARDS
FOR INTERIM STATUS
HWM
FACILITIES
Section 725.101
This Section
is drawn from 40 CFR 265.1, which was amended
at 55 Fed. Peg.
22683.
This is the introduction to the interim
status standards.
The amendment adds the following to Section
265.1(e):
“...and the 40 CFR part 268 standards are considered
material conditions or requirements of the part 265 interim
status standards.”
Section 725.113
This Section is drawn from 40 CFR 265.13, which was amended
at 55 Fed. Peg.
22683 and 25454.
The Section deals with waste
analysis at the TSD Facility.
The comment following Section
725.113 allows the TSD facility to arrange for the generator to
supply part of the required information.
The first amendment
references limitations on this in Section 728.107.
The second
amendment adds to Section 725.113(b) (6)
cross references to waste
analysis requirements associated with process vents.
Section 725.115
This Section is drawn from 40 CFR 265.15, which was amended
at 55 Fed. Peg. 25454.
It deals with “inspection” requirements,
meaning inspection of equipment by the operator.
The amendment
adds cross references to subsection
(b) (4) relating to process
vents, discussed below.
Section 725.173
This Section is drawn from 40 CFR 265.73, which was amended
at 55 Fed.
Peg.
25454.
The Section specifies requirements for
the operating record.
The amendments add to subsections
(b) (3)
and
(6)
cross references to the new process vent rules, discussed
below.
117—296
27
Section 725.177
This Section is drawn from 40 CFR 265.77, which was amended
at 55 Fed. Reg.
25454.
The Section deals with “additional
reports”.
The amendment adds subsection
(d), which cross
references the reporting requirements dealing with process vents.
Sections 725.329 and 725.356
These Sections are drawn from 40 CFR 265.229 and 265.256,
which were amended at 55 Fed. Reg. 22683.
They deal with special
requirements for ignitable and reactive waste at surface
impoundments and piles.
The amendments add references to the
land disposal restrictions in Part 728.
Section 725.381
This Section is drawn from 40 CFR 265.281, which was amended
at 55 Fed. Reg.
22683.
It deals with ignitable and reactive
waste in land treatment units.
The amendment rewords the
introductory language,
and adds a reference to Part 728.
There are two apparent typos in the existing Board language,
which were copied from the existing CFR.
The reference to the
definition of “ignitable” waste should be to 40 CFR 261.21, or 35
Ill. Adm. Code 721.121.
Also,
the reference to Section 264.17(b)
should be to 265.17(b), or Section 725.117(b).
The Board has
proposed to correct these typos.
Section 725.412
This Section is drawn from 40 CFR 265.312, which was amended
at 55
Fed. Reg.
22683.
This Section deals with ignitable and
reactive waste in interim status landfills.
The amendments add
to subsections
(a)
and
(b)
references to Part 728.
As is discussed above in connection with Section 724.412,
the Federal Register language appears to have dropped the
governing language for subsections
(a) (1) and
(2).
The Board has
proposed to retain this language, along with the added language,.
but
solicits comment.
Section 725.416
This Section is drawn from 40 CFR 265.316, which was amended
at 55 Fed. Reg.
22683.
This Section deals with lab packs.
The
amendments are the same as for Section 724.416,
above.
A new
subsection
(f)
adds a reference to Part 728, and authorizes the
use of fiber drums for labpacks destined for incineration.
(One
might ask why this is in the Subpart on Landfills,
instead of
Incinerators.)
117—297
28
There is an existing Section 725.416(f), which has been
renumbered to
(g).
This references the additional limitations on
lab packs adopted in 35 111.
Adm. Code 729.
SUBPART
AA:
AIR EMISSIONS FROM PROCESS VENTS
The main difference between Parts 724 and 725
is that, while
the former is applied in the context of RCRA permit issuance
under Part 703, the latter is self-implementing.
However, Part
725 includes several decisions to be made by the Agency.
The
USEPA rules are vague as to the procedural context for these
decisions.
The Board has proposed to address the procedural ambiguity
of the interim status decisions by adding a subsection to the
introduction to each new Subpart.
These will specify that such
Agency decisions must be made in writing,
are in the nature of
permit actions and may be appealed to the Board.
The Board will
back—reference these at each decision point
in the rules.
The
Board
solicits comment.
Section 725.930
This new Section is drawn from 40 CFP 265.1030 which was
added at 55 Fed. Peg. 25454.
As is discussed in general above,
the Board has added
Section 725.930(c).
Agency decisions pursuant to this Part must
be made in
writing,
are
in
the
nature
of
permit
decisions
pursuant to Section 39 of the Environmental Protection Act and
may be appealed to the Board pursuant to 35 Ill.
Adm. Code 105.
This subsection is back-referenced at the points in the body of
the
rules
which
require
decisions
by
the
Agency.
The
Board
solicits comment.
Section 725.931
This new Section is drawn from 40 CFR 265.1031 which was
added at 55 Fed. Peg. 25454.
Section 725.932
This new Section is drawn from 40 CFR 265.1032 which was
added at 55 Fed. Req. 25454.
This Section includes the basic standard for process vents:
the operator must either keep total facility emissions below
3
lbs/hr and 3.1 tons per year,
or achieve 95
control at each
piece of equipment.
40 CFR 265.1032(c)
includes the phrase “determinations
117 —298
29
may be based on engineering calculations or performance tests”.
In Section 725.932, the Board has rendered this as “must
either”,
since the option is really as between two choices.
Section 725.933
This new Section is drawn from 40 CFR 265.1033 which was
added at 55
Fed.
Reg.
25454.
40 CFR 265.1033(e) (2),
in the definition of “H.” USEPA
provides that “heats of combustion may be deteriuineà using ASTM D
2382
...
if published values are not available...”
The Board has
rendered this as “must be determined”, since the intent appears
to be that the operator would have no other alternative if
published values are not available.
Section 725.933(k) (2)
includes a monitoring condition which
the Agency can modify using the permit procedures of Section
725.930(c).
Section 725.934
This new Section is drawn from 40 CFR 265.1034 which was
added at
55 Fed. Reg.
25454.
40 CFR 265.1034(c) (1) (vi),
reflected in Section
725.934(c) (1) (F), has an apparent typographical error.
The first
cross reference should be to the hourly emission rates “in
paragraph
(c) (1) (iv)”,
not “(c) (1) (v)” as stated in the USEPA
rule.
This would track the text in Part 264, and makes more
sense in terms of the substance of the provision.
The Board has
proposed to correct this apparent typographical error.
Section 725.934(c) (4)
includes a provision allowing a
decision which the Agency may make pursuant to the permit
procedures of Section 725.930(c).
It provides that compliance is
based on the average of three runs,
but,
if one sample is lost,
“compliance may, upon the Agency’s approval be determined using
the average of the other two runs”.
This has been left as “may”,
since the operator apparently has the option of repeating the
lost run.
40 CFR 265.1034(d) (2) concerns using documentation to
establish that the organic concentration of a wastestream is less
than 10 ppmw.
40 CFR 265.1034(d) (2) (iii) allows a prior
speciation analysis on the same wastestream “where it can also be
documented” that no process change has occurred.
This is subject
to the interpretation that the operator need only document after
the fact if challenged.
The Board has therefore rendered this as
“is documented”
to make
it clear that the operator is to document
this in advance.
117—299
30
Section 725.935
This new Section is drawn from 40 CFR 265.1035 which was
added at 55 Fed. Reg.
25454.
Section 725.935(b) (4) (C) and
(e)
include provisions allowing
a decision which the Agency would make pursuant to the permit
procedures of Section 725.930(c).
Section 725.935(b) (4) (C)
deals with documentation to
establish control device efficiency.
Calculations must be based
on APTI 415 or other engineering texts
(approved by the Agency).
Documentation provided by the manufacturer or vendor “may” be
used.
The Board has left this as “may”,
since it appears to be a
true option for the operator.
40 CFR 265.1035(b) (4) (v) requires a statement that the
alternative 3.1 ton per year total mass emission standards “can
be attained” by a control device involving vapor recovery at an
efficiency less than 95.
The Board has rendered this as “are
attained” in Section 725.935(b) (4) (E).
The USEPA language is
subject to the interpretation that an operator could install
equipment theoretically capable
•of attaining the 3.1 ton per year
limit,
certify that the limit “can be” met, and be in compliance
even if the limit was not met.
40 CFR 265.1035(c) (4) (ii) has two apparent typos.
The
comparable provision in Part 264 requires the recording of the
date,
time and duration for a thermal vapor incinerator with an
efficiency of “95 weight percent or greater,
~
period” when the
temperature is more than 28 degrees below the design average.
The underlined words are both absent.
The Board has proposed to
leave “weight” out,
in that this is a harmless typo which could
not be misunderstood.
However,
since the omission of “any”
obscures the meaning, the Board has proposed to insert it at
this, and several other points near here in the text.
40 CFR 265.1035(c) (5)
includes a cross reference which
appears to bein error.
The reference to subsection
“(C)
(3)”
should probably be to “(c) (4)”, which would be in agreement with
Part 264, and also would make more sense.
The Board has proposed
to correct this apparent typo.
SUBPART BB:
AIR EMISSIONS FROM EQUIPMENT LEAKS
Section 725.950
This new Section is drawn from 40 CFR 265.1050 which was
added at 55 Fed. Peg.
25454.
As is discussed in gener~l:~~above,
the Board has added
117—300
31
Section 725.950(f),
stating that Agency decisions pursuant to
this Subpart must be made in writing, are in the nature of permit
decisions pursuant to Section 39 of the Environmental Protection
Act and may be appealed to.~theBoard pursuant to 35 Ill.
Adin.
Code 105.
This subsection will be back-referenced in the body of
the rules where these decisions appear.
Section 725.951
This new Section is drawn from 40 CFR 265.1051 which was
added at 55 Fed. Peg.
25454.
Section 725.952
This new Section
is drawn from 40 CFR 265.1052 which was
added at 55 Fed. Peg.
25454.
Section 725.952(e) (3)
includes a monitoring provision which
includes a decision which the Agency may make pursuant to the
permit procedures of Section 725.950(f).
Section 725.953
This new Section is drawn
frofri 40 CFR 265.1053 which was
added at 55 Fed. Reg. 25454.
Section 725.953(i) (2)
includes a provision allowing a
decision which the Agency may make pursuant to the permit
procedures of Section 725.950(f).
Section 725.954
This new Section is drawn from 40 CFR 265.1054 which was
added at 55 Fed.
Peg.
25454.
Section 725.955
This new Section is drawn from 40 CFR 265.1055 which was
added at 55 Fed. Peg.
25454.
Section 725.956
This new Section is drawn from 40 CFP 265.1056 which was
added at 55 Fed. Peg.
25454.
Section 725.957
This new Section is drawn from 40 CFR 265.1057 which was
added at 55 Fed.
Reg.
25454.
Section 725.957(f) (3)
includes a provision allowing a
decision which the Agency would make pursuant to the permit
117—30 1
32
procedures of Section 725.950(f).
Section 725.958
This new Section is drawn from 40 CFR 265.1058 which was
added at 55 Fed. Peg.
25454.
Section 725.959
This new Section is drawn from 40 CFR 265.1059 which was
added at 55 Fed. Peg.
25454.
Section 725.960
This new Section is drawn from 40 CFR 265.1060 which was
added at 55
Fed. Reg.
25454.
Section 725.961
This new Section is drawn from 40 CFR 265.1061 which was
added at 55 Fed. Peg.
25454.
Section 725.961(b) (2)
includes a provision allowing a
decision which the Agency would make pursuant to the permit
procedures of Section 725.950(f).
Section 725.962
This new Section is drawn from 40 CFR 265.1062 which was
added at 55 Fed. Peg.
25454.
Section 725.963
This new Section is drawn from 40 CFR 265.1063 which was
added at 55 Fed.
Peg.
25454.
40 CFR 265.1064(h)
provides that vapor pressures “may be”
obtained from standard references or determined from ASTM D—
2879.
the Board has rendered this as “must
...
either”,
since
the option is really as between two choices.
Section 725.964
This new Section is drawn from 40 CFR 265.1064 which was
added at 55 Fed. Peg.
25454.
PART 726:
SPECIFIC WASTES AND FACILITIES
The Board has learned of an error in Section 726.136.
This
Section was adopted in P85-22,
based on 50
Fed. Peg.
667, January
4,
1985.
This Section should have been repealed in P86—i,
according to the instructions at
50 Fed.
Peg. 49204, November 29,
117—302
33
1985.
The Board has therefore proposed to repeal this Section.
PART 728:
LAND
DISPOSAL RESTRICTIONS
This Part was amended by the “third third” land disposal
bans on June
1,
1990.
This action completes the land disposal
bans required by the 1984 HSWA amendments.
Included is a nearly
complete revision of the CCW and CCWE tables adopted with the
first and second thirds
(Tables A and B), new tables of treatment
technologies
(Tables C,
D and E), and several new appendices
(D
through H).
Section 728.101
This Section is drawn from 40 CFR 268.1, which was amended
at 55 Fed. Peg.
22683, June
1,
1990.
It adds an exclusion for
certain injection fluids in Section 728.lOl(c)(3).
Note that the
Parts of the June 1 Federal Register dealing primarily with
injection are being handled in R90-14.
40 CFR 268.1(c) (3) (1)
refers to a “hazardous injection
well”.
Consistent with the usage adopted by the Board in the UIC
rulemakings, the Board has proposed to change this to “hazardous
waste injection well”.
The existing Board rule includes subsections
(c) (1),
(2) and
(5);
(c)(3)
and
(4) were repealed in P90-2, based on 54 Fed.
Peg.
36970,
September 6,
1989
(See P90-2 Opinion, page 28).
However, the USEPA rule was not renumbered at that time.
These
subsections were also amended in P89-i
(Opinion,
p.
30).
The
current instructions at 55 Fed.
Peg.
22683 indicate that
(c) (5)
should be deleted, and a new
(c) (3)
added.
This appears to be
consistent with the Board’s prior actions on this Section, and it
is possible to make the indicated changes and arrive at a
sensible result.
However, the Board solicits comment as to
whether USEPA or the Board,
or both,
may
have made an error in
this Section.
Section 728.102
This Section is drawn from 40 CFR 268.2, which was amended
at 55 Fed.
Reg.
22683.
Definitions for the third third rules
have been added.
USEPA has adopted new definitions,
out of alphabetical
order,
and with subsection labels.
The Board has placed these
into alphabetical order,
and dropped the labels,
in accordance
with Code Division requirements.
Internal cross references have
been replaced with references to the appropriate definition by
name.
40 CFR 268.2(g) defines “inorganic solid debris” as:
117—303
34
nonfriable inorganic solids that are incapable of
passing through a 9.5 mm standard sieve that require
cutting, or crushing and grinding in mechanical sizing
equipment prior to stabilization,
limited to the
following inorganic or metal materials:...
There are a number of problems with this language.
For one
thing, the second “that” clause, without a separating
conjunction, appears to modify something in the first,
instead of
“solids”.
The Board has proposed to add “and” between the
“thats”, and some additional commas,
so “inorganic solid debris”
is defined as follows:
nonfriable inorganic solids that are incapable of
passing through a 9.5
mm
standard sieve,
and that
require cutting, or crushing and grinding,
in
mechanical sizing equipment prior to stabilization,
limited to the following inorganic or metal
materials:...
Existing 40 CFR 268.2 back-references the definitions in
other Parts,
including the large set in Section 260.10
(720.110).
This has been removed.
However,
40 CFR 260.10 continues to
forward reference into Part 268.
Such forward references are of
questionable validity under the Illinois Administrative Code,
which requires each Part to be self—contained.
The Board has
therefore proposed to retain the back references,
but has moved
them to the introductory paragraph.
Section 728.103
This Section is drawn from 40 CFR 268.3, which was amended
at 55
Fed.
Peg.
22683.
The existing Section prohibits dilution
as a substitute for treatment.
This adds,
in subsection
(b),
an
exception for dilution in an NPDES or pretreatment plant.
The USEPA rule cites to Sections 307 and 402 of the Clean
Water Act (CWA).
The Board has cited to the derived State
regulations in 35 Ill.
Adm.
Code 309 and 310.
Existing subsection
(a) ends with a reference to the
prohibition in Section 3004 of the
RCRA
Act.
This is referenced
into the Board rules by Section 728.139, which is with the
prohibitions in Subpart C, which are referenced in the preceding
clause.
Citation either to Section 3004 or Section 728.139 is
therefore unnecessary.
Section 728.105
This Section is drawn from 40 CFR 268.5, which was amended
at 55 Fed. Peg.
23935, a correction to the September
6,
1989,
117—304
35
Federal Register.
This Section deals with case—by—case extensions to the
effective dates.
In adopting this Section, the Board determined
that the tjmelines of these extensions were so short that it
would be unlikely that the Board could act on petitions before an
extension granted by USEPA could be readopted by the Board.
Rather than set the regulation forth in full, the Board therefore
incorporated the USEPA rule by reference,
and provided that any
extensions granted by USEPA would be deemed extensions of the
derivative Board rule.
The Board solicits comment as to whether
these extensions are the extensions now listed in Appendix VIII
(or H).
The Board has proposed to update the incorporation by
reference to include the correction.
Section 728.107
This Section is drawn from 40 CFR 268.7,
which was amended
at 55 Fed.
Peg.
22683.
The Section was also the subject of a
correction at 55 Fed. Peg.
23935, which corrected instructions at
54 Fed.
Peg.
36970,
September
6,
1989,
and which the Board
adopted in P90-2.
The Board apparently interpreted the
instructions correctly in P90—2,
so that no revision is now
needed.
This Section concerns waste analysis and recordkeeping to
show compliahce with
the land disposal bans.
The amendments
require the generator shipping restricted waste to notify the
treatment or storage facility of the treatment standards for
certain types of wastes, and of the treatability group of other
types.
Note that many of the treatment standards are defined by
reference to the process which produced the waste, so that a
subsequent handler without this information could not determine
whether the waste met the regulatory requirements simply by
analysis of the waste.
40 CFP 268.7(a) (1) (ii),
and several other subsections,
reference waste prohibited pursuant to “RCRA Section 3004(d)”.
As is discussed above, the Board has referenced the statutory
prohibitions in Section 728.139.
However,
a simple cross
reference to that Section will not suffice here,
because the
reference is to a specific subsection of Section 3004.
The Board
has therefore referenced “Section 3004(d)
of the RCRA Act,
referenced in Section 728.139”.
The same subsections provide that the generator’s notice
must include the corresponding treatment standards for certain
wastes.
Standards for other wastes “may be referenced” by
including the subcategory and treatability group.
The USEPA
appears to mean that,
for the other wastes, the generator can
117—305
36
either give the treatment standard or the subcategory and
treatability group.
However, the language is also subject to the
interpretation that the generator can elect to provide no
information.
To avoid this interpretation,
the Board has
reworded this so as to provide that the standards “must either be
referenced as above, or by” the subcategory and treatability
group.
40 CFR 268.7(a) (9) requires certain notifications to be kept
for three years.
This period is automatically extended during
the course of “any unresolved enforcement action” or “as
requested by the Agency”.
The former language may pose problems
in that,
if written into Board rules,
it would be subject to the
interpretation that the retention period would be extended only
if an “enforcement action” under Title VIII of the Act were filed
within the three-year period.
Within the USEPA system initiation
of an “enforcement action” may commence with a more preliminary
step, such as notification that USEPA is investigating a possible
violation.
If so, the Board rule ought to reference the
equivalent IEPA procedure.
It is possible that the Agency
notification pursuant to Section 31(d)
of the Act ought to
trigger record retention.
The Board has proposed to make this
reference, but solicits comment.
The USEPA rule also triggers additional record retention “as
requested by the Agency”.
The USEPA rule does not specify any
procedures for this request.
The Board is not aware of any
Agency procedures prior to the Section 31(d)
notification.
Since
the Agency’s authority to give such a notification is broad, the
Board has not proposed any alternative, but solicits comment.
Section 728.108
This Section is drawn from 40 CFR 268.8, which was amended
at 55 Fed. Peg.
22683 and at 55 Fed. Beg.
23935.
The former
added a final sentence stating that “As of May 8,
1990, this
section is no longer in effect”.
The Board has therefore
proposed to repeal the Section.
Section 728.109
This new Section is drawn from 40 CFR 268.9 which was added
at 55 Fed. Peg.
22683.
It sets forth special rules for wastes
which exhibit a characteristic.
40 CFP 268.9(c) prohibits land disposal of waste which
exhibits a hazardous characteristic,
unless the waste complies
with a treatment standard.
This is worded as “no waste
...
may
be disposed”.
The Board has proposed to render this as “no waste
shall be disposed”,
in keeping with its general policy of
avoiding the use of “may” except to indicate an optional
provision.
117—306
37
40 CFR 268.9(d)
deals with waste which is no longer
hazardous,
i.e. waste which has been treated to remove the
hazardous. characteristics.
The rule provides that for shipments
to a “Subtitle D facility”, the generator sends a notice to USEPA
or the state,
instead of to the receiving facility as would be
required for waste which was still hazardous.
The reference to
“Subtitle D”
is to Subtitle D of the
RCRA
Act, which deals with
non—hazardous waste facilities.
This reference would be vague
and confusing in State rules.
Within Illinois these facilities
are regulated under 35 Ill. Adm. Code 807 or 810 through 815
(unless exempted under Section 21(d) (1) (i)
of the Act).
However,
the generator could be shipping the waste out-of-state,
in which
case the notice would go the USEPA or the other state.
The Board
has proposed to render the reference as
“a non—hazardous waste
facility regulated under 35
Ill. Adm. Code 807 or 810 through
815, or exempted under Section 21(d) (1) (i)
of the Act, or
similarly in other.States”.
An alternative would be to require
notice
if the waste is shipped to a regulated facility other than
a
RCRA
Subtitle C facility.
The Board solicits comment as to
which formulation is preferable.
If the waste is being shipped out-of-state,
40 CFR 268.9(d)
requires the notice to go to “the appropriate EPA Regional
Administrator
(or his delegated representative)
or State
authorized to implement part 268 requirements”.
The Board has
proposed to render this as:
“to the Agency,
or,
for out—of—
State shipments, to the appropriate USEPA Regional Administrator
or state authorized,
pursuant to 40 CFR 271, to implement 40 CFP
268 requirements.”
The references to federal regulations are not incorporations
by reference.
Rather than requiring persons to comply with the
cited Parts, the references serve to identify the authorization
needed for the state to receive the notification.
The USEPA rules include 40 CFP 268.10,
268.11 and 268.12.
These serve to define the first,
second and third third wastes,
and set out USEPA’s schedule for regulating them.
The Board
declined to adopt these, since they apply only to USEPA.
However, as is discussed below,
the USEPA rules make occasional
reference to these.
In the past the Board has simply omitted
these references,
since they appeared to be redundant.
However,
as is discussed below, there
is a new rule which may really need
these lists.
It may be that USEPA will be adding new listings of
hazardous waste, without immediately adopting land disposal
restrictions for the new listing.
If this is the case, these
Sections may begin serving as a statement of scope for Part 268.
If so, the Board may need to adopt them.
The Board solicits
comment as to whether it ought to adopt equivalents of these
Sections, and as to whether it ought to proceed by way of
adopting the verbatim text,
or by way of incorporation by
117—307
38
reference.
Section 728.135
This new Section is drawn from 40 CFR 268.35 which was added
at 55 Fed. Reg.
22683.
This is the prohibition of the third
third wastes.
This list includes delayed effective dates which will have
passed before the Board adopts the rule.
The Board has generally
deleted these, so that the requirements will become effective as
State rules
as soon as they are filed.
Those dates which are
still in the future remain.
This Section is worded like its companions which the Board
has previously adopted.
The general form is “the following
wastes
(list)
are prohibited from land disposal”.
Most of the
lists are quite long.
These are much more readable in the form:
“the following wastes are prohibited from land disposal:
(list).”
The lists can then be broken into subsections.
The
Board has proposed to follow this format,
as it did for the other
thirds.
40 CFP 268.35(f) and
(g)
are temporary rules which applied
between May 8 and November 8,
1990.
The Board has proposed to
omit these,
since they have no future effect.
40 CFR 268.35(h) has a prohibition worded as “may be
disposed
...
only if”.
The Board has rendered this as “shall be
disposed”,
in keeping with its reservation of “may” to indicate
an election.
(In this case the election may be that the operator
has the option of providing further treatment even of waste which
meets the standard.
However, this option is always open, and is
adequately stated in the Board’s “shall” wording.
40 CFP 268.35(i)
starts by saying “To determine whether a
hazardous waste listed in section 268.10,
268.11,
and 268.12
exceeds the applicable treatment standards.
.
.“
As was discussed
above, the Board rules include no equivalents of these Sections.
However,
in this Section, USEPA may be using them as a part of
the statement of scope of part 268.
On the other hand,
the
reference may simply be redundant.
Following the latter
interpretation,
in 35 Ill.
Adm. Code 728.135(i),
the Board has
proposed to simply omit the references, but solicits
comment.
The difference may lie with wastes which are newly listed, but
for which no Part 268 standards have yet been promulgated.
Under
the rest of the Part, would they get a free pass,
or would they
be automatically excluded from land disposal pending promulgation
of a standard?
There is also an apparent typo in 40 CFR 268.35(j), which
would require correction if the language were placed into the
117—
308
39
Board rules.
There are few,
if any, overlapping entries in
sections 268.10 through 268.12.
Therefore, waste listed in all
three sections appears to bethe null set.
The rule should read
“listed in section 268.11,
268.12 or 268.13”.
40 CFR 268.35(j) goes on to say that the initial generator
“must test a representative sample of the waste
...
or the
generator may use knowledge of the waste” to determine whether it
exceeds the standards.
The Board has proposed to render this as
“shall either test
...
or use knowledge”, which better expresses
the apparent intent of the USEPA rule.
Section 728.140
This Section is drawn from 40 CFR 268.40, which was amended
at 55 Fed. Peg.
22683.
This is the introductory Section for the
treatment standards.
The treatment standards now include five large tables, which
cannot be placed with the text of the Sections and meet Illinois
codification requirements.
These appear at the end of the Part
as floating Tables.
The following is the cross reference table:
40 CFR
35
Ill. Adm. Code
268.41, Table CCWE
728.Table A
268.42, Table
1
728.Table C
268.42, Table
2
728.Table D
268.42, Table
3
728.Table E
268.43, Table CCW
728.Table B
Section 728.141
This Section is drawn from 40 CFR 268.41, which was amended
at 55 Fed. Peg. 22683.
This Section sets treatment standards by
concentration in the waste extract (CCWE).
The numerical
standards are located at the end of the Part in Table A.
The
amendments add an exception for certain wastes, and specify that
compliance is determined based on grab samples.
Section 728.142
This Section
is drawn from 40 CFR 268.42 which was amended
at 55 Fed. Peg.
22683.
It specifies technologies which must be
used to treat certain wastes.
This Section has been
substantially overhauled, with three large new tables added.
These appear at the end of the Part as Tables C through
E.
40
CFR
268.42(a) ends with a reference which the Board takes
to be “Table 1”, equivalent to 728.Table C.
The text is
illegible in the Board’s copy.
The Board solicits comment.
117—309
40
Section 728.143
This Section is drawn from 40 CFR 268.43, which was amended
at 55 Fed. Peg.
22683.
This Section sets treatment standards by
constituent concentrations in the waste itself
(CCW).
The
numerical standards appear in Table B at the end of the Part.
The main amendment appears to be the addition of Section
728.143(c), which adds an exception to the CCW standards for
organic constituents which have been treated in incinerators
where the TSD facility “has been unable to detect the
constituents despite having used its best good faith efforts as
defined by applicable Agency guidance.”
There are a number of
problems with this subsection.
It is not clear what this provision is intended to do.
The
Board has been unable to locate any discussion in the Preamble.
The discussion at 55 Fed. Peg.
22604
is related, but makes no
mention of this provision.
40 CFP 268.43(c)
is basically worded as follows:
“...treatment and disposal facilities may demonstrate
compliance
...
provided the following conditions are satisfied
...“
As worded, the rest of the rule is a set of conditions
which must be met before the operator is allowed to make the
demonstration, as opposed to the method of showing compliance.
However, this interpretation leaves no method for showing
compliance.
The Board has therefore proposed to reword this
Section so that it reads:
“...may demonstrate compliance by
satisfying the following conditions....”
The conditions are:
the treatment standard was based on
incineration; the.organic constituents have been treated by
incineration;
and:
The treatment or disposal facility has been unable to
detect the organic constituents despite using its best
good-faith efforts as defined by applicable Agency
guidance or standards.
Until such guidance or
standards are developed,
such good—faith efforts may be
demonstrated where the treatment or disposal facility
has detected the organic constituents at levels within
an order of magnitude of the treatment standard
specified in this Section.
A basic question is whether this Section is referring to the
constituents in the waste feed, or in the incinerator ash.
The
Board has proposed to reject the former interpretation,
since it
is a matter of defining the wastestream, which would belong in
Part 261
(721).
Therefore,
this Section must be directed at
residues in the incinerator ash.
117—3 10
41
The next question
is the meaning of “detected the organic
consituents at levels within an order of magnitude of the
treatment standard”.
The Board takes “order of magnitude” as
meaning “within
a factor of ten”.
But, does this mean one tenth
of the standard, or ten times the standard?
The former
interpretation
(1/10) would make sense if this Section referred
to concentrations in the waste feed.
However, this
interpretation was rejected above.
Therefore, this Section must
be referring to concentrations of the constituent in the ash
between the standard and 10 times the standard.
The Board has
therefore proposed to replace “within an order of magnitude of”
with “less than ten times” the standard.
Subsection
(c) then says “the facility has been unable to
detect the organic constituents despite using its best good faith
efforts...(which) may be demonstrated where the
...
facility has
detected the organic constituents at levels” less than ten times
the standard.
This makes no sense.
How can the facility show
that it’s less than ten times the standard if it cannot be
detected?
On the other hand,
what sense would it make if “within
an order of magnitude” meant “between 1/10 of the standard and
the standard”?
How would the facility know if they couldn’t
detect the constituent?
And, wouldn’t they already be in
compliance with the standard, rendering the entire provision
meaningless?
Another problem is that subsection
(c)(3),
like the
introduction to
(c),
is worded as a set of conditions under which
the operator may make a demonstration, as opposed to the
demonstration itself.
In this subsection,
it is possible that
the USEPA rule really means what it says: that the facility is
allowed to make a showing of “good faith efforts” where it has
detected organic constituents “within an order of magnitude”.
In
other words,
“within an order of magnitude”
is threshold showing,
which allows the operator to show “good faith efforts”, which are
unrelated to the threshold standard.
However, this would leave
no definition at all for “good faith efforts”.
The more likely
meaning is that “within an order of magnitude” implies “good
faith efforts”, unless another standard
is specified elsewhere.
The Board has therefore proposed to reword subsection
(c) (3)
along these lines.
Apart from making no sense, this provision poses serious
problems with incorporation by reference of future guidance
documents.
This is prohibited by the APA.
The Board has
therefore proposed to delete these references.
If there are
existing guidance documents which need to be incorporated, the
Board will add appropriate references following the public
comment period.
Commenters seeking incorporation by reference
should provide the Board with copies of any needed documents.
As proposed, Section 728.143(c) reads as below.
The Board
117—311
42
solicits comment on the above discussion,
and as to whether this
captures the meaning of the USEPA rule.
C)
Notwithstanding the prohibitions specified in
subsection
(a) and Table
B, treatment and disposal
facilities may demonstrate
(and certify pursuant to
Section 728.107(b) (5)) compliance with the treatment
standards for organic constituents specified in this
Section and Table B by satisfying the following
conditions:
1)
The treatment for the organic constituents were
established based on incineration in units
operated in accordance with the technical
requirements of 35 Ill. Adm. Code 724.Subpart 0 or
35 Ill. Adm. Code 725.Subpart 0, or based on
combustion in fuel substitution units operating in
accordance with applicable technical requirements;
2)
The organic constituents have been treated using
the methods referenced in subsection
(c) (1); and
3)
The treatment or disposal facility has been unable
to detect the organic constituents despite using
its best good-faith efforts as defined by
applicable standards.
Until such standards are
developed,
such good—faith efforts may be
demonstrated by showing that the treatment or
disposal facility has detected the organic
constituents at levels less than ten times the
treatment standard specified in this Section.
The floating Tables formerly appeared following the text of
the rules,
and before the Appendices.
This reflected the
historical adoption of Tables prior to Appendices.
This is
apparently causing problems in JCAR’s data base, which
automatically places the Appendices first.
The Board has
therefore moved the Tables down to follow the Appendices.
Section 728.App. D
USEPA has greatly assisted the Board by providing it with
the following Appendices and Tables on computer disks.
However,
we note that substantial reformatting was required.
Generally
the chemical names have been transferred directly, but many of
the numerical entries had to be retyped.
This Section is drawn from 40 CFR 268.App.
IV which was
amended at 55 Fed.
Reg.
22683.
This
is a list of wastes which
may be disposed in lab packs.
As is discussed above in
connection with Section 728.142,
35
Ill. Adm. Code 728.301 and
729.312 restrict the use of lab packs to “lab waste”.
The Board
117—3 12
43
has added a cross reference to those provisions.
Section 728.App.
E
This Section is drawn from 40 CFR 268.App. V which was
amended at 55 Fed.
Reg.
22683.
This is a second list of wastes
for which lab packs may be used.
The Board has added a similar
cross reference.
Section 728.App.
F
This Section is drawn from 40 CFR 268.App. VI which was
amended at 55 Fed. Reg.
22683.
This Appendix includes a list of
recommended technologies for removing the hazardous
characteristics of characteristic wastes.
Section 728.App. G
This Section is drawn from 40 CFP 268.App. VII which was
amended at 55 Fed. Peg.
22683.
This Appendix includes a listing
of the effective dates of the land disposal restrictions for
various wastes.
These reflect the USEPA effective dates,
rather
than the dates the Board adopted these provisions.
The listing for FOOl
—
F005
is ambiguous.
Evidently all
these wastes have a Nov.
8,
1986 effective date,
except for the
subcategories in the next two entries.
The Board has worded this
more explicitly.
Section 728.App. H
This Section is drawn from 40 CFR268.App. VIII which was
amended at 55 Fed. Peg.
22683.
This is a table of “national
capacity variances” for the UIC program.
The main body of the
UIC amendments
is being addressed in P90-14.
However, this is
proposed in this Docket,
since it
is in Part 268, which is mainly
PCRA.
Section 728.Table A
This is drawn from 40 CFR 268.41, Table CCWE, which was
amended at 55 Fed. Peg.
22683, June
1,
1990.
This involves a
complete reformatting of the table, such that the Board has
proposed to repeal the entire existing text,
and replace it with
a new text.
As noted above, the new text is drawn from a USEPA
disk.
On the disk each table was separated into two documents,
one consisting of the first three or four columns, and the second
consisting of the last three columns.
Re—merging such documents
was more difficult than retyping.
The first three or four
columns were salvaged, but the last three, the CAS Number and
standards, had to be retyped.
117—313
44
There are two apparent typos in the USEPA text.
In the
entry for FOOl
—
F005,
spent solvents, “tetrifluoroethane” has
been corrected to “tetrafluoroethane”.
Also,
in the final
footnotes, there
is no character indicated for one of the
footnotes.
It appears that this note is not used in the text,
although this is hard to tell, since there is no character.
The
Board
solicits comment.
Section 728.Table B
This is drawn from 40 CFR 268.43, Table
CCW,
which was
amended at 55 Fed. Peg.
22683, June
1,
1990.
Again,
this
involves a complete reformatting of the Table.
The USEPA Table CCW has a large number of footnotes.
These
are for the most part illegible.
However,
the Board has been
able to get them from a print out of the last three columns of
the tables from the USEPA disk.
Some of these footnotes are characters such as
“@“
and
“*“.
Others are superscripted numbers.
The Board has replaced these
with letters, which are a lot easier to type.
This also avoids
getting the numbers mixed in with the numerical standards.
The Board has identified several apparent errors in Table
CCW, which
it has proposed to correct.
The Board has not
conducted an exhaustive review of the Table.
These are errors
which were noted in the process of reformatting and editing the
Table from the USEPA disks.
The errors will be summarized
in
a
table below.
First, the Board will provide a general discussion
of the errors.
The first type of error is
in the chemical name.
The name
either has an obvious typo,
(“chlorethane”), or is internally
inconsistent (“trans—1,2—dichloroethane”).
The Board has
attempted to correct these,
but emphasizes that they may hiding
deeper errors.
For example, the USEPA typist may have jumped
from the middle of one name to the middle of the next entry.
The second type of error is when the chemical name does not
agree with the CAS Number.
These errors came to light because
the Board employed automated tricks to fill in the CAS Number
after many of the chemical names.
However,
it soon became
apparent that the Table does not always use the same CAS Number
for a given name.
The Board has used the CAS Numbers given in 40
CFR 261, Appendix VIII,
or at other points in this Table.
Note,
however, that these may again be masking deeper errors in the
Table.
It
is possible that the USEPA typist has skipped from one
entry to the CAS Number for the next entry.
Another possibility
is that the name is wrong, and the CAS number is right.
FEDERAL
REGISTER
CORRECTED
COMMENT
117—3 14
45
FO39
Acenaphtalene
Acenaphthalene
Typo in chemical name
Endosulfan
1031-07-8
Corrected CAS No., from
sulfate 1—31—07—
P050 below.
Note,
8
however, that this number
does not agree with
Appendix VIII
(115—29—7)
Hexachlorodi—
Hexachlorodi—
Corrected chemical name
benzo—furans
benzofurans
1,2,4,5,—Tetra—
1,2,4, 5—Tetra—
Corrected chemical name
chlorobenzene
chlorobenzene
Tetrachlorodj-
Tetrachlorodi-
Corrected chemical name
benzo—furans
benzofurans
1,1,2—Trichloro—
1,1,2-Trichloro-
Corrected chemical name
1,2,2—trifluoro—
1,2,2-trifluoro-
(“hard-hyphen” removed
ethane
ethane
from before “—ethane”.)
K005, K007
Cyanides, “(P)”
Footnote illegible in
Federal Register.
“/4/”
on USEPA disk.
KO17
Hexachloroethane
Deleted repeated entry.
KO20
l,2-Dichloro—
107—06-2
Corrected CAS No.
ethane,
106—93—4
K028
trans—i,2—Di—
trans-i, 2—Di—
Corrected chemical name
chloroethane
chloroethene
1,1,1—Trichlo-
1,1,l-Trichloro-
Corrected chemical name
ethane
ethane
1,1,2—
1,1,2—Trichioro—
Corrected chemical name
Trichlorethane
ethane
K029
Hexachlorobuta—
Hexachloroethane
Corrected second entry
diene 67-72—1
67—72-1
for “hexachlorobutadiene”
to agree with CAS No.
for
hexachloroethane, per
Appendix VIII
117—3 15
46
KO32
Hexachioropenta—
Hexachiorocyclo—
Corrected name to agree
diene
pentadiene
with CAS Number.
KO49
Chrysene
Chrysene 218-01-9
Corrected CAS Number to
2218-01-9
agree with Appendix VIII,
other entries
KO51
Acenaphthene
Acenaphthene
Corrected CAS Number to
208-96-8
83-32-9
agree with other entries.
Benzo(apyrene
Benzoa)pyrene
Corrected CAS Number to
117—81-7
50—32—8
agree with App. VIII
Chrysene
Chrysene 218-01-9
Corrected CAS No. to
2218—01-9
agree with other entries.
KO85
Aroclor 1016,
Aroclor 1016,
Corrected CAS No. to
12674—1,2
12674—11-2
agree with other entries
UO03
Acetonitrile
Standard is “017” in text
of Fed. Peg. and on USEPA
disk.
The Board renders
this as “0.17”
based on
the preamble in the Fed
Peg. at page 22624.
U051
Xylenes
(Total)
Deleted CAS No.
for lead.
Other entries for
“Xylenes” leave CAS No.
blank.
Lead
No entry for
nonwastewater standard
for lead.
U068
Dlbromonethane
Dibromoethane
Corrected chemical name
Ul57
3-Methoxychlo-
3-Nethoxychol-
Corrected chemical name
anthrene
anthrene
U172—U18O
n—Nitroso...
N—Nitroso...
Corrected chemical names
(5
total)
117—3 16
47
Section 728.Table C
This Table is drawn from 40 CFP 268.42, Table
1, which was
added at 55 Fed. Peg. 22683, June
1,
1990.
It is the first of
three tables which specify required treatment technologies.
For
certain types of hazardous waste, USEPA requires that certain
treatment technologies be employed prior to land disposal.
This
is in contrast to the CCWE and CCW standards in Tables A and B,
which the operator can meet with any technology.
Table C lists abbreviations for the treatment technologies,
which are actually specified in Tables D and E, below.
In the definitions of “IMERC” and “INCIN”, there are
requirements that incinerators be in compliance with 40 CFR 264,
Subpart 0 “and” 265, Subpart 0.
Facilities are regulated under
one Part or the other, but not both.
The Board has proposed to
replace “and” with “or”.
In the definition of “RNEPC” there are requirements that
facilities recovering mercury comply with certain air pollution
regulations.
There are two problems with these.
First, the
USEPA language is not sufficiently specific as to the federal
requirements to meet Illinois APA requirements.
Second, the rule
needs to include specific references to the Illinois requirements
meeting the federal specifications.
Note however, that the
generic federal language needs to be retained to address multi-
state situations.
For example, the rule needs to allow Illinois
disposal of residuals from mercury recovery conducted in Indiana
pursuant to proper Clean Air Act permit issued by USEPA or
Indiana.
The first option is mercury recovery at a facility in
compliance with a federal NESHAPS
(National Emission Standard for
Hazardous Air Pollutants).
The appropriate NESHAP for mercury is
at 40 CFR 61, Subpart
E.
This is currently incorporated by
reference in 35 Ill.
Adm. Code 231.150.
However, this will be
repealed shortly in P89-7(B).
The second option is for recovery at a facility subject to a
BACT
(Best Available Control Technology)
or LAEP (Lowest
Achievable Emission Rate)
imposed in a PSD (Prevention of
Significant Deterioration) permit.
The Board has cited to 35
Ill.
Adma.
Code 201 through 203 as an Illinois equivalents, but
solicits comment.
The Board also requests a more specific
statutory and regulatory citation to the federal requirements.
The third option
is a state permit which establishes
emission limitations for mercury within the meaning of Section
302 of the Clean Air Act
(as of June 1,
1990).
The Board has
again cited to 35 Ill. Adm. Code 201 through 203 as Illinois
equivalents, but solicits comment.
The Board also requests a
117—317
48
more specific citation to the federal regulations implementing
Section 302 of the Clean Air Act.
A final problem exists in the definition of “RTHERN”.
This
involves thermal recovery of metals in certain types of
“industrial furnaces” as defined in 40 CFR 260.10.
The problem
is that, while the USEPA rule identifies the acceptable types of
furnaces by paragraph number, Board definitions cannot have
subsection numbers under the APA.
The Board has therefore
replaced the paragraph numbers with the names of the types of
furnaces discussed in the cited subsections.
Note that this
includes the catch-all paragraph (11), which,
in the Board rule,
allows the Agency to determine that additional furnaces meet the
generic definition.
The procedures for this are specified in
Part 720.
Section 728.Table D
This Table is drawn from 40 CFR 268.42, Table
2, which was
added at 55 Fed.
Peg.
22683,
June
1,
1990.
It specifies
technology—based treatment standards for certain hazardous
wastes, using the treatment codes in Table C above.
The Board has made a minor change in the format of this
Table.
The column for the waste description has been moved to
the right margin.
This makes the table much easier to type and
edit,
since word wrap will work for the lengthy narratives in the
last column.
The Board has proposed to correct several typographical
errors in this Table.
Most of these are obvious errors in the
chemical names, which have generally been corrected to agree with
the names used in.~Section721.133
(40 CFR 261.33).
The
corrections are summarized as follows:
40 CFR 268.42,
35 IAC 728.Table
COMMENT
Table
2
P028
Bensyl chloride
Benzyl chloride
Corrected chemical name
P040
0,0-Diethyl 0-
O,O-Diethyl-O-
Corrected chemical name
pyrazinyl
...
pyrazinyl
P093
N-Phenylthiouea
Phenylthiourea
Corrected chemical name
U096
a,a-Dimethyl
alpha,alpha-Di-
Corrected chemical name
benzyl
...
methylbenzyl
117—318
49
U097
Dimethylcarbomyl
Dimethylcarbamoyl
Corrected chemical name
U114
Ethylene bis-di-
Ethylene-bis-di-
Corrected chemical name
thiocarbamic
...
thiocarbamic
U119
Ethyl methane
Ethyl methane-
Corrected chemical name
sulfonate
sulfonate
13132
Hexachiorophenene
Hexachlorophene
Corrected chemical name
Ui34
Hydrogen flouride
Hydrogen fluoride
Corrected chemical name
U135
CHRED,
or INCIN
CHRED;
or INCIN
Corrected punctuation
U153
Methane thiol
Methanethiol
Corrected chemical name
U163
N-Methyl N’-Nitro
N-Methyl-N’-
Corrected chemical name
N-Nitroso...
Nitro-N-Nitroso
11168
1-Naphthlyamine
i-Naphthylamine
Corrected chemical name
U173
N-Nitroso-di-n-
N-Nitrosodiethan-
Corrected chemical name
ethanolamine
olamine
U240
2,4-Dichlorophen—
2, 4—Dichlorophen-
oxyacetic
...
oxyacetic acid
Section 728.Table E
This Table
is drawn from 40 CFP 268.42, Table
3, which was
added at 55 Fed. Peg.
22683, June
1,
1990.
It lists treatment
standards for certain radioactive mixed wastes.
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.
117—319
50
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby cert~fythat the above Order was adopted on the
~
day of
L~_e~r~..-&/
,
1990, by a vote of
7—o
~
~.
Dorothy M.
Gt~ttn, Clerk
Illinois PoU.Xition Control Board
117—320
