Ms. Dorothy Gunn

Clerk

Illinois

Pollution Control Board

100

West Randolph Street

Suite 11—500

Chicago,

 IllinoIs

60601

flear

 Ms. Gunn:

The United States Environmental Protection Agency (U.S. EPA) has

 eviewd the

Illinois Pollution Control Board’s

 (Board) May 27, 1993,

 Proposed thder of

RCRA Update R93-4,

 which Is analogousto the RCRA Cluster

 III rules that

appeared In the FederaL Register between July 1, 1992,

 and December 31. 1992.

Please find enclosed our comments on.~,theproposed rules, as well as responses

to the regulatory questions raised :in~theProposed Opinion which accompanied

the proposed Order.

 Mr. Gary Westefer,of my staff, previously discussed our

responses with Ms. Anne Manly of the Board.

Please contact Mr.

 Westefer at (312) 886—7450,

 if you

are In need of further assistance.

Norman R. Niede~gar”~~”

Associate Division Director for RCRA

Waste Management Division

Sincerely yours,

have any t~uestions,or

1.

Part 703

 No coment.

2. Part 720

 No comment.

3. Part 721

•

1.

....~i

STATES ENVIRONMENTAL

.,~

 CY’S

 TS ON ILLINOIS’ PROPOSED

RULES PACKAGE R93-4,

 AP4ALOGO(JS TO RCRA CLUSTER III RULES.

a.

S~rtjnp721

,j.Qj

The Board has solicited comment on t~h.eBoard Note

levels.

 We find the clarification ac~eptable.

•~..

The Board has solicited comment on whether Federal amendments

 to 40 CFR Part

261.31 have the effect of lifting the~Federalstay of this regulation.

The

Board’s interpretation is correct:

 the Federal amendments have the effect of

lifting the stay,

 and so the State stay should also be lifted.

4. Part 722

 No comment.

5. Part 724

b.

c~rt1nr~

7~1fl

which clarifies exclusion

The Federal rule at 40 CFR Part 264.147(h)(4)

 specifies that

“

trustee of the standby trust fund must be an entity which has

act as a trustee and whose trust operations are regulated ~

Federal or State agency.”

 (Emphasis added.)

 The Board has concluded that

there are no practical situations where a Federally regulated entity

doing business in Illinois will

not

diSo

 be regulated by the State.”

Accordingly,

 the Board proposes

 to substitute the language,

“.

 regulated

and examined by the Illinois Commissioner of Banks and Trust

 or who

complies with the Corporate Fiduciary~Act(Ill.

 Rev. Stat.

 1991,

ch.

17

 .)“

 in lieu of the language

 erlined.above.

The Board should

standby trust to

regulation

is

“.

agency has to be

standby trust

is

that the standby

to consider that

standby trust

In

recognize that nothi

be an in-state Insti

Federal or State

in the State where t

located,

 The Board’

trustee be an Ililno

a company doing busi

a different State.

b. Section 72~L414

The Board solicited comment on the re

with the Federal regulations, and the~

Process to provide an equivalent to

1)

:~..

•

.

 tjhe

the authority to

~~~~ijned

by

In the Federal regulation requires the

~1on.The language of the Federal

~ency.°

 It does not say that the State

owner or operator who

 is obtaining the

roposed change seems to contemplate

regulated entity.

 The Board may wish

 here may want to establish the

~er1ng

 of this

ting of 35 IAC

EPA’s petition process,

:1:

Section to correlate

106 Illinois Petition

posed in Section 724.414.

a. ~ction724.247

The US,

 EPA agrees with the changes

1.

 The Board

existent stay

appropriately

requirement.

•

c. S~ections124.67Othrough 724.673 (Subpart W~

solicited comments on whether 1)

 the U.S. EPA cited a non-

to the drip pad provisions

 in 57 E& 61493,

 2) the U.S. EPA had

terminated the stay,

 and~’3)the drip pad exception

 Is a HSWA

Our responses to these questions are the~following:.

Item

1

-

 The Board has correctly terminated the stay on drip pad provisions.

The Federal stay was terminated in the~December 24, 1992,

 Fledera.l Register

Item

2

—

 The Board has correctly interpreted that there was no stay on

June 6,

 1992 as was reported incorrectly at 57 ER 61493; and

Item

3

—

 The preamble to the December 6,

 1990, Federal Register

 indicates that

the Wood Preserving Rule

Is

 a HSWA provision.

ii.

 In Section 724.673 (3)(A), the Board cites that owners and operators must

.nanage residues in accordance with 35

 lAC. 721 through 728, and Section 3010 of

RCRA.

 This appropriately covers

 the Federal equivalent of 40 CER Parts 261—

268, and Section 3010 of RCRA.

 However,.the citation does not cover Part 270

which is also cited

 in the correspondlng..Part 264.573.

d. ~

 724.1100

1.

 The Board ha~proposed to include the introductory language of the

Federal

 regulation, which states:

“The requirements of this subpart apply to owners or operators who store

or treat n~zardouswaste

 in units

 These provisions will become

effective on February 18, 1993,

 although the owner or operator may

notify the U.S. EPA of his

 intent tobe bound

•

..‘

Since February 18,

 1993,

 has passed,

it

l~i~uage

 to read,

 “The Federal

 regulati.

l99~,although owners or operators were~

This

 ‘anguage would a~sobe appropriate

ii.

 In Sections

 724.1100(a)

 and 725.11

sake of clarity, breaking out

 into sepa

failure in containment buildings,

 whfch.

cuch buildings,

 U.S. EPA finds this

ci

Board inserted an “or”

 instead of the cu

and 725.11O0(a)(4~i. By so doing,

 the Bo

hi.1fldlng must be designed to prevent faf~

which

 Is the Intention of the Federal re~

would be appropriate to change this

~ became effective on February 18,

 ~titled

 to notify U.S. EPA

•

Section 725.1100.

~),

 the Board has proposed, for the

~sections the factors that cause

~tbe prevented by proper design of

tfication

be acceptable

 if the

~nt“and” at Sections 724.1100(a)(4)

~ensures that the containment

a by any ~

 of these factors,

latIon.

111.

 In Section 724.1100(d), the Board did not catch an error in the Federal

regulations.

 As promulgated in the Federal Register at 57 ER 37265 (8/18/92),

the Federal regulation requires an owneror operator of a containment building

to ensure that the unit

(d)

 Has controls

 sufficient to prevent fugitive dust emissions to

meet the no visible emission standard in

40 CFR 264.1101(c)(1)(iv).

.

.

The word

 “prevent”

 is a misprint.

 It should be “permit.”

 Please insert

either “permit” or another word that conveys the proper meaning, j.~.,that

fugitive dust emissions in containment buildings must meet the no visible

emission standard of the regulations.

e. Section ZZ4~1101

I.

 In Sections 724.11O1(a)(2) and 725.itOl(a)(2),

 the Board has proposed

regulations that require containment buildings to meet the structural

Integrity requirements established by recognized professional organizations.

 The corresponding Federal regulation states that U.S. EPA will consider

the

standards established by professional organizations

 in determining the

structural

 integrity of containment buildings.

 Illinois’ regulation

 is more

stringent than its Federal counterpart.~Thisis permissible and U.S. EPA has

no objection.

Ii.

 In Part 264.1101(b)(4) and 265.1.1O1(b)(4),

 U.S. EPA allowed the owner or

operator of an existing containment building to apply for a delay

in

implementing the secondary containment requirement for up to two years.

 Such

owners and operators were required to submit written notice describing

operating practices and plans

 for retrofitting the unit with secondary

containment

 to the Regional Administrator, by November

16,

 1992.

The Board, noting that no criteria are provided for the Regional

Administrator’s determination whether the owner’s or operator’s unit justifies

a two year delay,

 solicited comment on what enforcement responsibility Is

placed on the State by this provision, apd1whether the State should properly

adopt this provision at all.

~

Since no applications for the two-year dxtCnsion period were received

in

Region

V,

 the State will

 not have any enforcement responsibility.

 The State

is not required to adopt

 the provision a~1low1ngfor a two year delay.

ill.

 In Part 264.1101(e),

 the Federal r~gulat1on

Regional Administrator may waive requIre~ientsfor

permitted containment building where the. owner or

..“

 The Board has

 proposed

substitUte the

not require secondary containment for a ~~ermitted

If

..“

 The Board should recognIze that

rLir.e the Regional Administrator to waive

containment, but

 leaves It to his dlscrellQn

agaInst Such a waiver,

 The proposed

 Illln8is

with no similar discretion,

 and may cause the

provides:

“.

the

secondary containment for a

operator demonstrates that

language

 ttthe Agency shall

containment building

the Federal regulatIofl does not

the requirement for secondary

in case other

 factors weigh

analog leaves the State agency

agency to be less stringent.

a. ~ect1on

 725.245

On lines

13

misspelled.

and

 15, on page 200,

b.

~~rt1nn

72c247

“Before disposal,

 the liquid wast

treated or stabilized, chemicall

sorbent solid),

 so that free llq

e.

 Section 725.443

the words guarantee and guarantor are

In Section 725.247(h)(4),

 a line is missIng.

 The words

 “will

 be deposited by

the issuing institution into the standby: trust” should be inserted between the

words

 “trust” and “in accordance” on line 5 of Part 725.247(h)(4) located on

oage 209.

c.

Section

725.321

The Board has pointed out a problem with

new

40 CFR Part 265.221(h).

 This

new

regulation provides that surface impoundments newly subject to RCRA due to the

promulgation of additional

 listings must~bein compliance with “paragraphs

(a),

 (c) ~

 (d) of this section not later than 48 months after the

promulgation

.

.

..“

;~:

Section (c) of the Federal regulations provides an exemption to the

requirements of section (a).

 Section (d) provides

 a waiver mechanism from

the requirements of Section

 (a).

 Accordingly, no surface impoundment

 will be

in compliance with any two of these sections at the same time.

 The Board has

proposed

 to substitute

 “or” for

 “and.”.

 The Board has correctly interpreted

the intent of the Federal regulation,

d

 Section 725 414

In this Section, Section (a)(2)

 appears;to be mIssing from the Illinois

regulations.

 This Section found In the Federal analogue at 40 CFR Part

261.314(a)(2) reads:

In line

1

 under Section 725.443(b)(3)

system...” should read “A leakage colilec

same section,

 the word “properly”

 is m~s,

section,

the

word

“of”

 should be “or”

waste containing free liquids

is

physically

 (e.g. by mixing with a

~arenolonger present.”

age 219,

 “A leaking collection

on system...”.

 In line 4 of the

elled.

 In line 6 of the same

Sect4nn

72cllnn

i.

 In Section 725.1100(c)(3) the Board has pointed out a potential Federal

typographical

 error.

 This regulation provides design and construction

specifications for the secondary containment systems of containment buildings

not operating under a permit system’. In almost every respect,

 all of the non—

permitted containment building regulations are exact copies of those

regulating permitted containment buildings.

 In this Section,

 however,

the

phrase “at the earliest

~siib.1~

 time”

 is used instead of the phrase “at the

earliest practicable time.”

 (Emphasis added.?

The Board has proposed to substitute “practicable” for the Federal term

 “possible.”

 The Federal Register preamble supports this assumption.

At

57

37211,

it

 is stated that.

“.

 containment buildings under Part 265

interim status standards

 .to meet thes~medesign and operating

requirements as (Part 264) permitted.conta~unentbuildings

..“

 Further,

at 57 ER 37214,

 the fact that the leak detection system should remove leaks of

hazardous material at

 the earliest “practicable” time is reiterated.

 U.S. EPA

believes

 the Board’s proposed substitution complies with the intention of the

Federal regulation.

-:.

ii.

 Regarding Section 725.1100(d).:j;:~

See the discussion concerning the words

 “prevent” and “permit” with regard to

Section 724.1100(d),

 in comment

 d. ~1ii.on

 page three above.

g. Section 725.1101

In line

1

 of Section 725.1101(b)(3)(B)on page 224, the words

“mt

he

building” should be “in the building”.

In line 2 of Section 725.110l(d)(2) on page 226, the word “Inot” should be

“into”.

Part

726

~!.

In Section 726.203,

the

Board has ~qsed

 to add a Board Note stating the

following:

Federal Sections 726.203(c)(1)~(fi5(A)(1)and (2) are condensed

into the above

Section.

The cited regulation

 is a State, no~F~deral,

 regulation.

 The appropriate

citation would be Part 266.103(c)(1)(iil)(A)(1)and(2).

In line 2 of Section 726.203(c?(1)(B)(~JiI)

on page

244, the words “adjusted

tire”

 should be “adjusted tier’.

 Thé:~ameerror appears again

 in line

3

of

Section 726203(c)(1)(F) on page ~

~.e.c~~1on

726.203

L

Sc~rtthn72R.107

The Board has noted that 40 CFR Part 268.7 contains a typographical

 error at

(a)(2), which references Part 261.3(e)(2).

 Part 261.3(e) is a sunset

provision.

 The Board has proposed to replace all

 references to 261.3(e)

728.103(e))

 with 261.3(d)

 728.103(d)).

...

‘.

The Board Is correct in its assumption thatthe reference to Part 261.3(e)

is

an error.

 However, the Board’s proposed substitute Is also incorrect.

According to U.S. EPA Headquarters,~thecorrect substitution for references to

Part 261.3(e)

 is new regulation Part 261.3(f)(2)

 728.103(f)(2)). ~This

provision is the new “contained—in” policy, which allows the Regional

Administrator to make case-by-case determinations.

728,107(a)(4) on page 277, “tanks or containers”

containers or~conta1nmentbuildings”.

b.I~W

On line

 3 of

should read,

On page 324,

 under the chemical

 listings for K136, the concentration for

Ethylene Dibromide should be 15 mg/l..~.Inaddition, the chemicals Methyl

Bromide and Chloroform are missing.

 I~jle

page

338,

under

the

 chemical

 listings for K109, line

 3 should read “CARBN;

or BIOOG fb CARBH”.

 Table~E

...~

.‘.:

One part of Table

includes

three

columns..

The

headings

these

columns

are

“Technology Description”, “Performance or Design and Operating Standard”, and

“Contaminant Restrictions”.

 The la~gu~e

 In the rule is complete;

 however, in

many cases

It

 is In the wrong co1um~s.1The misplaced language appears as

follows:

Under 2b and c on page 357, the fir,t~lurnnof 2c

Is

 In the second column of

2b.

 The second column of 2c

Is

 in ~~e:~third

 column under 2 b, and

 the third

column of 2b is under the second có~ünder2b.

~

~

Under 3a the containment restrict1oi~S.~at

 should appear in column 3 are

instead located In column

1.

th~sé~ond

 paragraph of column

 1 whIch begins

be~io~ted

 in the first paragraph of column

Section

“tanks,

On Page 360 the first S lines

in

“Debris contaminated...”, should

The word “none” which appears

 in pai

In paragraph

 2 column 3.

3,

column

page

360,

should

In paragraph

 I of column

 I on Page 3.~.. _ider 1..rmal destruction, the

language “35 111. Adm. Code 265.Subpart 0”.

 should be “35

 Iii. Adm. Code

725.Subpart 0.”

T~ble_G

On page 361, under the chemical listing F006,

 the C.A.S.

 Number for Arsenic

should be “7440—38-?”.

On page 361 under the chemical listingK062,

 Illinois appears to have adopted

an error that appeared

 in the Federal.’Register.

 The constituent listed as

“Lean” should be listed as “lead”.

9.

Part

739

a. ~ect1on

 739.100

The Board has noted that certain definitions used in Part 739 are different

from definitions

 for the same terms used~1~elsewherein the regulations.

The

Board proposes to add Board Notes alerting readers that certain definitions

are

 limited to this Section only.

 The Board may want to consider defining

slightly different terms for purposes of this Section.

 For example, the term

“Aboveground tank”

 is defined differently In Part 739 than it

is

 for, purposes

of Section 720.110.

 In order to reduce the chances of confusion,

 the Board

may want to consider defining the term as “Aboveground Used Oil

 Tank”

 here,

so.

that readers do not rely on an inapplicable definition provided in a different,.,,

Part.

b.

S~ctfon

739.110~~

f.

 The Board has solicited comment about Its interpretation of the Federal

definition of “used oil.”

 The Federal regulation excludes from the definition’

of used oil,

“.

 that type of oil generated on farmland property devoted to

agricultural use and used on that property for heating

 or. burning.”

~h1sproduced on farms, and is

~farm for heating or burning

is

The Board has concluded that

“.

devoted to agricultural

 use, and used

not subject to regulation under the

t.:

Under the Federal regulation there a;~

generatIng

 used oIl

 from vehicles

or

n

gallons per

month;

 and 2) those genera

In quantities less than or equal

 to ~

generates greater than 25 gallons per

agricultural use, and uses the used 01

used oil would be subject to 40 CFR Pa

generates less than or equal

 to 25 gal

the oil, must be devoted to agr1cultur~

exomption.~..Theused

oil

must be used’.

‘S

lasses of farmers:

 1) those

ry in quantities greater

 than 25

sed

of 1

 from vehicles or machinery

per month.

 If a farmer

farmland property devoted to

sting or. burning, the farmer’s

regulations..

 If a farmer

month,

 the farm property, not

In order to

 fall within the

or~.heat1ng.

‘I

ii

 The Board also solicited comment as to whether definitions for

“metalworking

oils

fluids”

 and’ “off-specification used oil” should

included

 in the regulations.

 These.definitions would clarify the scope of the

‘

regulations.

 Any such definitions should be consistent with the delinition of

“used oil” at RCRA Section 1004(36)

 and. 40 CFR Part 279.

iii.

 The Board solicited comment”’as tO whether “de minimis used oil” has a

different meaning in any Part of the Federal regulations other than Part 279.

 c’”

“De minimis” is addressed In 40 CFR Part 261.3, and may be addressed in the

new Federal hazardous waste identification rule.

 That

 is why the definition

of “de minimis” with respect to used oil

 is limited to a specific subpart.

iv. The Board listed

 5 interpretations, on page 55 of Its Proposed Opinion and

solicited comment as

 to whether these interpretations are correct.

All

interpretations are correct excep,t item 2.’~Used oil exceeding 1,000 ppm total

halogens

 (less

 than the 4,000 ppm specification level) may be’ regulated as a

hazardous waste, depending on the handler’s success

 in rebutting the

presumption of mixture.

c’

c.

 Sections

 739.124 andl39131

‘

The

 Board has requested comment on whether new Federal regulations regarding

the transportation and collection ‘of used oil contemplate the creation of a

permit process.

 The regulations require that’used oil collection centers must

be registered, licensed, permitted or recognized by a State, county or

municipal government to manage used oil.

Section 3014 of RCRA provides for “permit by rule.”

 This

 is similar to

Interim status for hazardous wastes and basically means that so long’as

‘

someone

complies

with

the regulations,’they

are

permitted

conduct

the

activity.

 The Administrator may requireowners and operators to obtain a

‘H

permit pursuant to RCRA Section 3005(c) if he determines that an individual

permit is necessary to protect human health and the environment.

 (See Section

‘

3014(d) of RCRA, as amended.)

‘“

‘

‘..‘

‘

.1’

We have contacted Headquarters ab~,~th~s’issue,

 Mr. Randy Hill, who is in

charge

 of issues attendant to the ~ewu~edoil

 regulations,

 informed

 us that

State

 and local

 governments retai

 ‘some~discret1onto choose the type and

extent

oversight.

“~,

 ‘cc’:

~‘

‘

d. Section

‘i

LI~

On page 61 of the Board Opinion,

ti

 ._rd has stated that It interprets 40

CFR Part 279.43(a)—(c) to mean,

“.

.

 that the transportation of more than 55

gallons

used

oil

.is

not

regulated 1f~tis

being

delivered

Do-It-

Yourself collection center, a collectioncenter,

 or an aggregation point.”

We

believe this interpretation is incorrect.

 Section 739.140 of Illinois’

proposed regulation specifies that the.regulations are not’applicable to

generators who transport 55 gallons or less,of used oil

 to a usedoil

collection point, or to an:aggregatlon po~ntowned by the same generator.

The

key

point

who

 Is doing the transporting.’’ If’the transporter is not the

generator, or if the transporter is not-transporting Do—It—Yourselfer used

oil,

then

the

transporter

 Is subject to regulation even if transporting 55

gallons or less,

 of. used oil.

e. $ection 739.144

Section 739.144

regulates

the

manner

inwhlch

used

oil

transporter

must

determine the total

 halogen content of used oil being transported or stored at

a transfer facility.

 To ensure that the used

 oil’ .is not a hazardous waste,

the

used oil

 transporter must determine whether the total halogen content of

used oil being transported or stored is above or below 1,000 ppm.

 The Board

is concerned that the transporter can make this determination simply by

•

 .applying knowledge of the halogen ‘content of’the used oil

 in light of

the material

 or processes used.”

 (Section 739.144(b)(2),

 40 CFR Part

1,;:,

279.44(b)(2).)

The

Board

notes

that, the,.test

does,not

require

that

the

.:.

transporter

possess

any

level

expertlse;or.:background

when

determining

the’

halogen content of the used oil.

 The Board notes that the Issue arises again

in Sections 739.163 and 739.153.

 Th1s’~~’.fs~a~leg1timate

 concern that also

‘

appears in Section 722.111(c) of Illinois

 ~“‘~-a~d4OCFRPart 262.11(c)

(the corresponding Federal. analog).~

 requirernents.are

H”

fundamentally alike,

 The U.S. EPA

 ‘‘*blish a more rigorous

management standard for.usedoil’;t,

 ;hazar~

 aste.~Inan enforcement’”’

situation the inspector may not’fin

 ietermination. acceptable and might

allege that an inadequate determir

 Id notrebut’~’~

 presumption.

As

 the’ Board notes, Section 739.15

unskilled transporters by requirfr~

knowledge of the halogen content

01

such

requirement

Sections

739.~

make the Illinois regulation morei’

U.S. EPA would not object.

f. Section 739.156

In lines

 1 and 2 of Section 739.lfl,

“delivereded” should be “delivered”~

g. Sectioni,39.ISZ

i. Inline 6

“and”.

of Section

739.

182

 word “nad”. -t-iuld be

r;1~

‘-‘:1

...s”potent1al~

 ~lems

 with.

~sors

 to,,itate the basis of their

~edoIl,,:The Board may want to add

739.163.’.’

Such

requirement

would

‘,ltsFederal

equivalent,

but

and(a)(3) on page 391, the word

On page

 3 of the Board Opinion accompanying Rules Package R93-4,

 the Board

solicited comment on the May 24,1993, interim final

 rule.

 We have discussed

this with our Office of Regional

 Counsel.

 Our response is as follows:

The Board notes that U.S. EPA has ‘Issued an interim final

 rule in response

to

the remand

 in Chemical

 Waste Mana~m~pt.

 Inc. v. EPA, 976 F.2d 2 (D.C. Cir.

1992).

 The Board proposes to wait until

 the Thterim final

 rule is made final

before codifying the Illinois equivalent.

The effect of the Chemical WasteJ~nagemeritdecision was to vacate the

deactivation treatment standards for certain ignitable and corrosive wastes.

U.S.

 EPA’s interim final rule was promulgated as an emergency measure because,

if no treatment standard

 is in

place,

 land disposal

 of these wastes

is

absolutely prohibited.

 See 58

ER 29860

(May 24, 1993).

Because the Federal

 standards for certain

ignitable and corrosive wastes were

vacated,

 the State equivalents

may not be enforceable.

 (hi_re Hardin County,

No. RCRA-V—W-89-R-29 May

27,

 1993).:

 As a result, if the Board fails to

promulgate

 an Illinois equivalent to U.S.,EPA’s

interim final rule, land

disposal of the wastes affected by the Chemical

 Waste ~ianagement

 decision may

 be absolutely prohibited

 in Illinois.

At least on other issues, U.S. EPA has taken the position that a state cannot

absolutely

ban

action

allowable

under

the

Federal

regulations, j.~.,that

absolute ban

is not merelyrnore stringent than Federal regulations, but rather

substantially different.

 Accordingly, we recommend that the Board promulgate

an Illinois equivalent

 to the.interim final

 rule.

 If U.S. EPA later modifies

the interim rule In response to comments, the Board should modify the state

equivalent accordingly.

:‘

‘

As a result, the Board should consider adopting the rule in the next rules

package.

‘~

....

‘‘“‘I

~‘