Ill. Admin. Code tit. 35 § 728.107

Current through Register Vol. 49, No. 2, January 10, 2025

Section 728.107 - Testing, Tracking, and Recordkeeping Requirements for Generators, Reverse Distributors, Treaters, and Disposal Facilities

a) Requirements for Generators and Reverse Distributors

1) A generator of a hazardous waste must determine if the waste has to be treated before it can be land disposed. This is done by determining if the hazardous waste meets the treatment standards in Section 728.140, 728.145, or 728.149. This determination can be made concurrently with the hazardous waste determination required in 35 Ill. Adm. Code 722.111, in either of two ways: testing the waste or using knowledge of the waste. If the generator tests the waste, testing determines the total concentration of hazardous constituents or the concentration of hazardous constituents in an extract of the waste obtained using Method 1311 (Toxicity Characteristic Leaching Procedure) in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA publication number EPA-530/SW-846, incorporated by reference in 35 Ill. Adm. Code 720.111(a), depending on whether the treatment standard for the waste is expressed as a total concentration or concentration of hazardous constituent in the waste extract. (Alternatively, the generator must send the waste to a RCRA-permitted hazardous waste treatment facility, if the waste treatment facility must comply with the requirements of 35 Ill. Adm. Code 724.113 and subsection (b).) In addition, some hazardous wastes must be treated by particular treatment methods before they can be land disposed and some soils are contaminated by such hazardous wastes. These treatment standards are also found in Section 728.140 and Table T, and are described in detail in Table C. These wastes and soils contaminated with such wastes do not need to be tested (however, if they are in a waste mixture, other wastes with concentration level treatment standards must be tested). If a generator determines that it is managing a waste or soil contaminated with a waste that displays a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity, the generator must comply with the special requirements of Section 728.109 in addition to any applicable requirements in this Section.

2) If the waste or contaminated soil does not meet the treatment standard or if the generator chooses not to make the determination of whether its waste must be treated, the generator must send a one-time written notice to each treatment or storage facility receiving the waste with the initial shipment of waste to each treatment or storage facility, and the generator must place a copy of the one-time notice in the file. The notice must include the information in column "728.107(a)(2) " of the Generator Paperwork Requirements Table in Table I. (Alternatively, if the generator chooses not to make the determination of whether the waste must be treated, the notification must include the USEPA hazardous waste numbers and manifest number of the first shipment, and it must include the following statement: "This hazardous waste may or may not be subject to the LDR treatment standards. The treatment facility must make the determination.") No further notification is necessary until such time that the waste or facility changes, in which case a new notification must be sent and a copy placed in the generator's file.

3) If the waste or contaminated soil meets the treatment standard at the original point of generation, the waste generator must do the following:

A) With the initial shipment of waste to each treatment, storage, or disposal facility, the generator must send a one-time written notice to each treatment, storage, or disposal facility receiving the waste, and place a copy in its own file. The notice must include the information indicated in column "728.107(a)(3) " of the Generator Paperwork Requirements Table in Table I and the following certification statement, signed by an authorized representative:

I certify under penalty of law that I personally have examined and am familiar with the waste through analysis and testing or through knowledge of the waste to support this certification that the waste complies with the treatment standards specified in Subpart D of 35 Ill. Adm. Code 728. I believe that the information I submitted is true, accurate, and complete. I am aware that there are significant penalties for submitting a false certification, including the possibility of a fine and imprisonment.

B) For contaminated soil, with the initial shipment of wastes to each treatment, storage, or disposal facility, the generator must send a one-time written notice to each facility receiving the waste and place a copy in the file. The notice must include the information in the column headed "(a)(3)" in Table I.

C) If the waste changes, the generator must send a new notice and certification to the receiving facility and place a copy in its files. A generator of hazardous debris excluded from the definition of hazardous waste under 35 Ill. Adm. Code 721.103(f) is not subject to these requirements.

4) For reporting, tracking and recordkeeping when exceptions allow certain wastes or contaminated soil that do not meet the treatment standards to be land disposed, there are certain exemptions from the requirement that hazardous wastes or contaminated soil meet treatment standards before they can be land disposed. These include, but are not limited to, case-by-case extensions under Section 728.105, disposal in a no-migration unit under Section 728.106, or a national capacity variance or case-by-case capacity variance under Subpart C. If a generator's waste is so exempt, then with the initial shipment of waste, the generator must send a one-time written notice to each land disposal facility receiving the waste. The notice must include the information indicated in column "728.107(a)(4) " of the Generator Paperwork Requirements Table in Table I. If the waste changes, the generator must send a new notice to the receiving facility, and place a copy in its file.

5) If a generator is managing and treating prohibited waste or contaminated soil in tanks, containers, or containment buildings regulated under 35 Ill. Adm. Code 722.115, 722.116, and 722.117 to meet applicable LDR treatment standards found at Section 728.140, the generator must develop and follow a written waste analysis plan that describes the procedures it will carry out to comply with the treatment standards. (Generators treating hazardous debris under the alternative treatment standards of Table F, however, are not subject to these waste analysis requirements.) The plan must be kept on site in the generator's records, and the following requirements must be met:

A) The waste analysis plan must be based on a detailed chemical and physical analysis of a representative sample of the prohibited wastes being treated, and contain all information necessary to treat the wastes in accordance with the requirements of this Part, including the selected testing frequency;

B) Such plan must be kept in the facility's on-site files and made available to inspectors; and

C) Wastes shipped off-site under this subsection (a)(5) must comply with the notification requirements of subsection (a)(3).

6) If a generator determines that the waste or contaminated soil is restricted based solely on its knowledge of the waste, all supporting data used to make this determination must be retained on-site in the generator's files. If a generator determines that the waste is restricted based on testing this waste or an extract developed using Method 1311 (Toxicity Characteristic Leaching Procedure) in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA publication number EPA-530/SW-846, all waste analysis data must be retained on-site in the generator's files.

7) If a generator determines that it is managing a prohibited waste that is excluded from the definition of hazardous or solid waste or that is exempt from Subtitle C regulation under 35 Ill. Adm. Code 721.102 through 721.106 subsequent to the point of generation (including deactivated characteristic hazardous wastes that are managed in wastewater treatment systems subject to the CWA, as specified at 35 Ill. Adm. Code 721.104(a)(2); that are CWA-equivalent; or that are managed in an underground injection well regulated under 35 Ill. Adm. Code 730), the generator must place a one-time notice stating such generation, subsequent exclusion from the definition of hazardous or solid waste or exemption from RCRA Subtitle C regulation, and the disposition of the waste in the generating facility's on-site file.

8) A generator must retain a copy of all notices, certifications, waste analysis data, and other documentation produced under this Section on-site for at least three years from the date that the waste that is the subject of such documentation was last sent to on-site or off-site treatment, storage, or disposal. The three-year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested in writing by the Agency. The requirements of this subsection (a)(8) apply to solid wastes even when the hazardous characteristic is removed prior to disposal, or when the waste is excluded from the definition of hazardous or solid waste under 35 Ill. Adm. Code 721.102 through 721.106, or exempted from RCRA Subtitle C regulation, subsequent to the point of generation.

BOARD NOTE: Any Agency request for extended records retention under this subsection (a)(8) is subject to Board review under Section 40 of the Act.

9) If a generator is managing a lab pack containing hazardous wastes and wishes to use the alternative treatment standard for lab packs found at Section 728.142(c), the generator must fulfill the following conditions:

A) With the initial shipment of waste to a treatment facility, the generator must submit a notice that provides the information in column "Section 728.107(a)(9) " in the Generator Paperwork Requirements Table of Table I and the following certification. The certification, which must be signed by an authorized representative and must be placed in the generator's files, must say the following:

I certify under penalty of law that I personally have examined and am familiar with the waste and that the lab pack contains only wastes that have not been excluded under Appendix D to 35 Ill. Adm. Code 728 and that this lab pack will be sent to a combustion facility in compliance with the alternative treatment standards for lab packs at 35 Ill. Adm. Code 728.142(c). I am aware that there are significant penalties for submitting a false certification, including the possibility of fine or imprisonment.

B) No further notification is necessary until such time as the wastes in the lab pack change, or the receiving facility changes, in which case a new notice and certification must be sent and a copy placed in the generator's file.

C) If the lab pack contains characteristic hazardous wastes (D001-D043), underlying hazardous constituents (as defined in Section 728.102(i) ) need not be determined.

D) The generator must also comply with the requirements in subsections (a)(6) and (a)(7).

10) An SQG with tolling agreements under 35 Ill. Adm. Code 722.120(e) must comply with the applicable notification and certification requirements of subsection (a) for the initial shipment of the waste subject to the agreement. Such generators must retain on-site a copy of the notification and certification, together with the tolling agreement, for at least three years after termination or expiration of the agreement. The three-year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested in writing by the Agency.

BOARD NOTE: Any Agency request for extended records retention under this subsection (a)(10) is subject to Board review under Section 40 of the Act.

b) The owner or operator of a treatment facility must test its wastes according to the frequency specified in its waste analysis plan, as required by 35 Ill. Adm. Code 724.113 (for permitted TSDs) or 725.113 (for interim status facilities). Such testing must be performed as provided in subsections (b)(1), (b)(2), and (b)(3).

1) For wastes or contaminated soil with treatment standards expressed in the waste extract (TCLP), the owner or operator of the treatment facility must test an extract of the treatment residues using Method 1311 (Toxicity Characteristic Leaching Procedure) in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA publication number EPA-530/SW-846, to assure that the treatment residues extract meets the applicable treatment standards.

2) For wastes or contaminated soil with treatment standards expressed as concentrations in the waste, the owner or operator of the treatment facility must test the treatment residues (not an extract of such residues) to assure that the treatment residues meet the applicable treatment standards.

3) A one-time notice must be sent with the initial shipment of waste or contaminated soil to the land disposal facility. A copy of the notice must be placed in the treatment facility's file.

A) No further notification is necessary until such time that the waste or receiving facility changes, in which case a new notice must be sent and a copy placed in the treatment facility's file.

B) The one-time notice must include the following requirements:

i) USEPA hazardous waste number and manifest number of first shipment;

ii) The waste is subject to the LDRs. The constituents of concern for F001 through F005 and F039 waste and underlying hazardous constituents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the LDR notice;

iii) The notice must include the applicable wastewater/nonwastewater category (see Section 728.102(d) and (f)) and subdivisions made within a USEPA hazardous waste numbers based on waste-specific criteria (such as D003 reactive cyanide);

iv) Waste analysis data (when available);

v) For contaminated soil subject to LDRs as provided in Section 728.149(a), the constituents subject to treatment as described in Section 728.149(d) and the following statement, "this contaminated soil (does/does not) contain listed hazardous waste and (does/does not) exhibit a characteristic of hazardous waste and (is subject to/complies with) the soil treatment standards as provided by Section 728.149(c) "; and

vi) A certification is needed (see applicable Section for exact wording).

4) The owner or operator of a treatment facility must submit a certification signed by an authorized representative with the initial shipment of waste or treatment residue of a restricted waste to the land disposal facility. The certification must state as follows:

I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification. Based on my inquiry of those individuals immediately responsible for obtaining this information, I believe that the treatment process has been operated and maintained properly so as to comply with the treatment standards specified in 35 Ill. Adm. Code 728.140 without impermissible dilution of the prohibited waste. I am aware there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.

A certification is also necessary for contaminated soil and it must state as follows:

I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification and believe that it has been maintained and operated properly so as to comply with treatment standards specified in 35 Ill. Adm. Code 728.149 without impermissible dilution of the prohibited wastes. I am aware there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.

A) A copy of the certification must be placed in the treatment facility's on-site files. If the waste or treatment residue changes, or the receiving facility changes, a new certification must be sent to the receiving facility, and a copy placed in the treatment facility's file.

B) Debris excluded from the definition of hazardous waste under 35 Ill. Adm. Code 721.103(f) (i.e., debris treated by an extraction or destruction technology listed in Table F and debris that the Agency has determined does not contain hazardous waste) is subject to the notification and certification requirements of subsection (d) rather than the certification requirements of this subsection (b)(4).

C) For wastes with organic constituents having treatment standards expressed as concentration levels, if compliance with the treatment standards is based in part or in whole on the analytical detection limit alternative specified in Section 728.140(d), the certification must be signed by an authorized representative and must state as follows:

I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification. Based on my inquiry of those individuals immediately responsible for obtaining this information, I believe that the nonwastewater organic constituents have been treated by combustion units as specified in Table C to 35 Ill. Adm. Code 728. I have been unable to detect the nonwastewater organic constituents, despite having used best good faith efforts to analyze for such constituents. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.

D) For characteristic wastes that are subject to the treatment standards in Section 728.140 and Table T (other than those expressed as a required method of treatment) or Section 728.149 and that contain underlying hazardous constituents, as defined in Section 728.102(i); if these wastes are treated on-site to remove the hazardous characteristic; and that are then sent off-site for treatment of underlying hazardous constituents, the certification must state as follows:

I certify under penalty of law that the waste has been treated in accordance with the requirements of 35 Ill. Adm. Code 728.140 and Table T of Section 728.149 of that Part to remove the hazardous characteristic. This decharacterized waste contains underlying hazardous constituents that require further treatment to meet treatment standards. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.

E) For characteristic wastes that contain underlying hazardous constituents, as defined in Section 728.102(i), that are treated on-site to remove the hazardous characteristic and to treat underlying hazardous constituents to levels in Section 728.148 and Table U universal treatment standards, the certification must state as follows:

I certify under penalty of law that the waste has been treated in accordance with the requirements of 35 Ill. Adm. Code 728.140 and Table T of that Part to remove the hazardous characteristic and that underlying hazardous constituents, as defined in 35 Ill. Adm. Code 728.102(i), have been treated on-site to meet the universal treatment standards of 35 Ill. Adm. Code 728.148 and Table U of that Part. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.

5) If the waste or treatment residue will be further managed at a different treatment, storage, or disposal facility, the treatment, storage, or disposal facility that sends the waste or treatment residue off-site must comply with the notice and certification requirements applicable to generators under this Section.

6) If the wastes are recyclable materials used in a manner constituting disposal subject to the provisions of 35 Ill. Adm. Code 726.120(b), regarding treatment standards and prohibition levels, the owner or operator of a treatment facility (i.e., the recycler) must, for the initial shipment of waste, prepare a one-time certification described in subsection (b)(4) and a notice that includes the information listed in subsection (b)(3) (except the manifest number). The certification and notification must be placed in the facility's on-site files. If the waste or the receiving facility changes, a new certification and notification must be prepared and placed in the on-site files. In addition, the owner or operator of the recycling facility also must keep records of the name and location of each entity receiving the hazardous waste-derived product.

c) Except if the owner or operator is disposing of any waste that is a recyclable material used in a manner constituting disposal under 35 Ill. Adm. Code 726.120(b), the owner or operator of any land disposal facility disposing any waste subject to restrictions under this Part must do the following:

1) Maintain in its files copies of the notice and certifications specified in subsection (a) or (b).

2) Test the waste or an extract of the waste or treatment residue developed using Method 1311 (Toxicity Characteristic Leaching Procedure in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA publication number EPA-530/SW-846) to assure that the waste or treatment residue is in compliance with the applicable treatment standards set forth in Subpart D. Such testing must be performed according to the frequency specified in the facility's waste analysis plan as required by 35 Ill. Adm. Code 724.113 or 35 Ill. Adm. Code 725.113.

3) If the owner or operator is disposing of any waste that is subject to the prohibitions under Section 728.133(f) but not subject to the prohibitions set forth in Section 728.132, the owner or operator must ensure that such waste is the subject of a certification according to the requirements of Section 728.108 prior to disposal in a landfill or surface impoundment unit, and that such disposal is in accordance with the requirements of Section 728.105(h)(2). The same requirement applies to any waste that is subject to the prohibitions under Section 728.133(f) and also is subject to the statutory prohibitions in the codified prohibitions in Section 728.139 or Section 728.132.

4) If the owner or operator is disposing of any waste that is a recyclable material used in a manner constituting disposal subject to the provisions of 35 Ill. Adm. Code 726.120(b), the owner or operator is not subject to subsections (c)(1) through (c)(3) with respect to such waste.

d) A generator or treater that first claims that hazardous debris is excluded from the definition of hazardous waste under 35 Ill. Adm. Code 721.103(f) (i.e., debris treated by an extraction or destruction technology provided by Table F, and debris that has been delisted) is subject to the following notification and certification requirements:

1) A one-time notification must be submitted to the Agency including the following information:

A) The name and address of the RCRA Subtitle D (municipal solid waste landfill) facility receiving the treated debris;

B) A description of the hazardous debris as initially generated, including the applicable USEPA hazardous waste numbers; and

C) For debris excluded under 35 Ill. Adm. Code 721.103(f)(1), the technology from Table F used to treat the debris.

2) The notification must be updated if the debris is shipped to a different facility and, for debris excluded under 35 Ill. Adm. Code 721.103(f)(1), if a different type of debris is treated or if a different technology is used to treat the debris.

3) For debris excluded under 35 Ill. Adm. Code 721.103(f)(1), the owner or operator of the treatment facility must document and certify compliance with the treatment standards of Table F, as follows:

A) Records must be kept of all inspections, evaluations, and analyses of treated debris that are made to determine compliance with the treatment standards;

B) Records must be kept of any data or information the treater obtains during treatment of the debris that identifies key operating parameters of the treatment unit; and

C) For each shipment of treated debris, a certification of compliance with the treatment standards must be signed by an authorized representative and placed in the facility's files. The certification must state as follows:

I certify under penalty of law that the debris has been treated in accordance with the requirements of 35 Ill. Adm. Code 728.145. I am aware that there are significant penalties for making a false certification, including the possibility of fine and imprisonment.

e) A generator or treater that first receives a determination from USEPA or the Agency that a given contaminated soil subject to LDRs, as provided in Section 728.149(a), no longer contains a listed hazardous waste and a generator or treater that first determines that a contaminated soil subject to LDRs, as provided in Section 728.149(a), no longer exhibits a characteristic of hazardous waste must do the following:

1) Prepare a one-time only documentation of these determinations including all supporting information; and

2) Maintain that information in the facility files and other records for a minimum of three years.

Ill. Admin. Code tit. 35, § 728.107

Amended at 32 Ill. Reg. 12840, effective July 14, 2008

Amended at 40 Ill. Reg. 12052, effective 8/9/2016

Amended at 42 Ill. Reg. 24924, effective 11/19/2018

Amended at 44 Ill. Reg. 15495, effective 9/3/2020