ILLINOIS POLLUTION CONTROL BOARD
October
6,
1988
IN THE MATTER OF:
)
UIC UPDATE, USEPA REGULATIONS
)
R88-17
(1—1-88 THROUGH 7-31-88)
)
(R88—16)
AND CORRECTION
PROPOSAL FOR
PUBLIC COMMENT
OPINION AND ORDER
OF THE BOARD
(by J.
Anderson):
On September
8,
1988,
the Board dismissed this Docket
after determining
that there were no amendments
to the USEPA UIC rules during the period January
1
through June 30,
1988.
However, on September 21,
1988 USI Division
of
Quantum Chemical Corporation
(USI) and Cabot Corporation
(Cabot) filed
in R88-
16
a motion
requesting amendment
of 35
111.
Adm. Code
704.
The Board
construes this
as
a motion
to reconsider the September 8 Order
in
this Docket,
and, as
such, grants
it.
To
avoid confusion,
a copy of this Opinion
and Order
will
also
be filed
in R88-16.
The September 8 dismissal Order
is
vacated,
and
the Board has proposed amendments
to Part 704,
as
is discussed
below.
Section
13 of the Act governs adoption of regulations establishing the
UIC program
in
Illinois.
Section 13(c)
provides
for quick adoption of
regulations which are “identical
in
substance”
to
federal
regulations;
Section 13(c)
provides that Title
VII of the Act
and Section
5 of the
Administrative Procedure Act
shall
not apply.
The federal UIC regulations
are
found
at 40 CFR 144 and 146.
HISTORY
OF RCRA
and UIC ADOPTION
The Illinois RCRA 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
93—111
-2-
731
Underground Storage Tanks
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-l8
51
PCB 31, January 13,
1983,
7
Ill.
Reg.
2518, March 4,
1983.
Illinois received Phase
I interim authorization on May 17, 1982
(47 Fed.
Reg. 21043).
The UIC regulations were adopted
as follows:
R8l-32
47 PCB
93, May 13,
1982;
October
15,
1982,
6 Ill. Reg. 12479.
The UIC regulations were amended
in R82—18, which
is referenced
above.
The UIC regulations were also amended
in R83—39:
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
June 19, 1986;
10
Iii.
Reg. 13274, August
8, 1986.
R86—27
Dismissed April
16, 1987
(No USEPA amendments through
12/31/86).
R87—29
January 21,
1987;
12
Ill.
Reg.
6673,
April
8, 1988;
(1/1/87
through 6/30/87)
R88—2
June 16,
1988;
12 Ill.
Reg.
13700, August
26,
1988.
(7/1/87
through 12/31/87)
R88-17
This docket.
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—l9
53
PCB
131, July 26, 1983,
7
Ill.
Reg. 13999, October 28, 1983.
R83—24
55 PCB
31, December
15, 1983,
8
Ill.
Reg. 200, January 6,
1984.
On September 6,
1984,
the Third
District Appellate Court upheld the
Board’s actions
in adopting R82-19 and R83-24.
(Comonwealth 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
93—112
—3—
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
July 11,
1986;
10
Ill. Reg.
13998, August
22,
1986.
(7/1/85
——
1/31/86)
R86-19
October 23,
1986;
10
Ill.
Reg.
20630, December 12,
1986.
(2/1/86
—-
3/31/86)
R86—28
February
5 and March 5, 1987;
11
111.
Reg. 6017,
April
3,
1987.
Correction 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
Current RCRA Docket.
Proposed September
8,
1988
(1/1/88
--
7/31/88)
Illinois received
final
authorization for the RCRA program effective
January 31,
1986.
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 effectively repealed
by R85—22, which included adoption of
USEPA’s dioxin listings.
The Board has adopted two USEPA delistings
at the
request
of Amoco and Envirite:
R85—2
April
24,
1986;
10
Ill.
Reg. 8112,
effective May
2,
1986.
R87—30
June 30,
1988;
12
Ill.
Reg. 12070, effective July 12,
1988.
93—113
-4-
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 October 23, 1986;
10
111.
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).
Hearings
on permanent
rules are
pending.
MOTION
TO CONFORM
As noted above,
there were no USEPA amendments
to 40 CFR
144 or
146
during the current
update period
(1/1/88 through 6/30/88).
The amendments
proposed in this Docket address only the problems noted by USI
and Cabot
in
their motion
to conform
35
Ill.
Adm. Code 704.143(d).
In the past the Board
has
corrected
the type of error alleged
in the motion
either with the current
update Docket,
or
by opening
a special
Docket,
as was
the case
in R87-32.
The
choice depends
on whether the correction can be made
in
a reasonably prompt
manner without delaying
the update.
Addressing
a UIC correction
in
a RCRA
update Docket,
as
requested by the motion,
is
a third possibility.
However,
the Board did
not address
this in the current RCRA update,
R88—16,
since
the
proposal
had
already been sent to
the Illinois Register
for publication.
Adding this proposal
to R88-16 would
have caused
at
least
a four week delay
in
R88-16.
The quickest approach was to deem the motion one to reconsider
dismissal
of the
instant UIC Docket.
The motion
alleges that the UIC rules were adopted without the benefit of
notice and
coninent procedures.
This
is false.
As
is detailed
above, the
Board
has provided public
notice
and the opportunity for public coment
at
every
stage of adoption and amendment of the UIC rules.
The motion
alleges that
35
Ill. Adm. Code 704.143(d)
is not
identical
in
substance with the 1987 edition
of 40 CFR
144.21(a).
Whle the
former
contains
a provision that authorizations
by
rule for Class
I
and
III wells
expire
on February
2, 1989,
regardless of whether
a
permit application
is
on
file,
the
latter
allows
permits
by rule to
continue indefinitely while
an
application
is
pending.
The Board agrees, although the problem
is worse than
93—114
—5—
indicated
in the motion.
35 Ill. Adm. Code 704.143 was adopted
in R81—32.
(Complete references
to
Opinions
and
Illinois Register versions for these Dockets are
in the History
above.)
It was
based
on 40 CFR
122.37
(1981).
At that time the UIC rules
were
a portion of USEPA’s “consolidated” permit
rules, which were very
confusing and disorganized.
40 CFR 122.37(a)(1)
(1981) provided that:
Injection into existing Class
I
...
and
III wells may be authorized
by rule for periods
up to
5 years from the date of approval
or
promulgation
of the UIC program.
All
such wells must
be
issued
permits within the
five year period.
40 CFR 122.37(a)(1)(i)(A)
and
(B) required that State rules
specify that
authorization to
inject expire either
upon the effective date of
a UIC
permit,
or upon failure
to
file
a timely permit
application.
40 CFR
122.37(a)(1)(i)(C)
(1981)
required that State
rules
specify that authorization
to
inject expires:
Unless
a complete permit application
is
pending, not
later than five
years
after
approval
or promulgation
of the UIC
program.
40 CFR
122.37 was
a USEPA rule which prescribed the contents of state
rules without setting
forth
the text of
the rule the state was
to adopt.
Section
13(c) of the Act required
the Board
to
fashion
a rule within the
parameters of 40 CFR
122.37.
The Board’s authority to write rules
in this
situation was ratified by the adoption
of P.A. 85-1048 (S.B.
1834)
on July 14,
1988.
The Board
responded to the USEPA directive by adopting 35 Ill. Adm. Code
704.141
and 704.143.
Section 704.141 authorized
injection into existing Class
I and
III wells, and Section 704.143
set
forth the conditions
under which
authorization expired.
Section
704.143 included
the three conditions drawn
from 40 CFR 122.37(a)(1)(i),
as well
as three
other conditions drawn
from
other portions of the USEPA rules.
The most important other condition was the
five year
limit
on
authorizations
by rule drawn from 40 CFR 122.37(a)(1).
This was placed
in
35
Ill.
Adm. Code 704.143(e),
with the related provision of
40 CFR
122.37(a)(1)(i)(C), which
is quoted above.
As originally adopted,
35
Ill. Adm. Code 704.143(e)
provided as follows:
The authorization
...
shall
expire
...:
e)
Two years after
the date of approval
by USEPA
...
of the
Illinois UIC
program unless,
at that time,
there
is
a pending UIC
permit
application
for the injection previously authorized
by rules.
Authorization
by rule may continue during the pendency of the UIC
permit
application,
except that any
such authorization
shall
expire
five years
after the date of approval
by USEPA of the
Illinois UIC
program.
40 CFR 122.37(a)(1)(i)(C)
(1981) required
states
to
set times
up
to five
years for receipt
of
applications.
The Board
adopted
a two year
limit,
reflecting the relatively small
number
of UIC wells requiring permits
in
Illinois.
(The five year
limit was
to accomodate permitting
of Class
II
93—115
—6-
wells, which
are far more numerous, and which are regulated
in
Illinois by the
Department
of Mines and Minerals.)
No commenters objected to
this
implementation of the USEPA prescription.
Section 704.143
had
a note citing 40 CFR 122.37(c)
as
its source.
This
was incorrect.
The actual
sources were several provisions
in 40 CFR
122.37(a),
and two other conditions
found outside of Section 122.37.
35
111. Mm. Code 704.143 was amended
in R82—19.
At that time
the error
in the Board notes was
found
and
corrected
in part.
However, the
five year
limit
on authorizations by rule was
inserted into Section 704.141, next to the
language authorizing
injection by rule.
This provision then appeared at two
locations in the Board rules,
Section 704.141
and Section 704.143(e).
The State received UIC authorization
on February
1,
1984.
35 Ill. Adm. Code 704.143 was
next amended
in R85-23.
At this time USEPA
deconsolidated the permit rules,
and moved the UIC provisions to
Part 144.
This introduced
a
lot of confusion.
Also, the UIC rules
on this point were
changed from “prescription” rules
to the current “pattern” format.
However,
the pattern was
so similar
to the rules
the Board
had adopted
that no major
changes
in
format were needed.
In response to USEPA amendments, the Board
modified
the ban on Class
IV wells
and
repealed the
five year limit
on
authorizations by rule
in the duplicated
provision
in Section 704.141.
However,
the Board failed
to repeal
it
at the original
location
in Section
704.143.
Instead,
the Board replaced
the provision keyed
to approval of the
Illinois program with the February
2,
1989 date.
This
is
the error complained
of
in
the motion.
In the Order and
Illinois Register versions of R85—23, Section 704.143(e)
was renumbered to Section
704.143(d).
However,
in the
final,
filed version
paragraph label
(d) was deleted,
and paragraphs
(c)
and
(d) combined.
The
version presented
in
the motion corresponds with the Board’s Order,
the
Illinois Register version
and the Agency’s printed version
of the subsection,
but does
not correspond with the official version of the Section.
Therefore,
it
is necessary to
reinsert the subsection label
in this rulemaking.
The Board
has
below proposed to repeal
the 1989 deadline
for
authorization by rule.
The Board
has
also proposed to
address
the underlying
cause of this error by inserting more specific references
to
the sources of
the subsections
in the CFR.
Note that Section 704.143(c)
is drawn from other
Sections.
This was
added
to afford
a more complete statement of the
conditions
for termination of authorization by rule than provided in the CFR.
Section 704.143(d)
includes
a provision which required
UIC applications
for
Class
I and
III wells operating under
a
permit by rule to
be filed
by
February
2,
1986.
40 CFR 144.21(a)(3)(i)(A)
now requires states
to allow five
years
for receipt
of applications
for Class
I and
III wells.
As discussed
above,
the Board
orginally adopted
a two year time consistent with then—
current
regulations.
The two years expired
on February
2,
1986.
Five years
will
not be
up until February
2,
1989.
USI
and Cabot
both met the
1986
application
deadline,
and have not mentioned this area of consistency with the
USEPA
rules.
93—116
—7—
In 1982 the Board adopted
a deadline which was consistent with USEPA
directives
at the time of adoption.
USEPA approved
the UIC program in
1984,
based
in part on this deadline.
The time
for filing applications passed over
2 1/2 years
ago,
and this
is the first
time this possible consistency problem
has come up.
The Board
has suggests that USEPA did not
intend for
Illinois to
retroactively extend
the application deadline
out to the limit
now required by
federal
law.
Interested
persons are
invited
to coment.
The Board
usually repeals
rules which have no prospective effect.
However,
at
least two injectors have applications still
pending which were
keyed
to this date.
Therefore, the Board
has proposed to retain the
application deadline.
However, the Board
has
proposed to cite to the 1981 CFR
to clarify the source of this
rule,
since the federal
rule has been repealed.
The Board has proposed to
amend
35
Ill. Adm. Code 704.143
to
achieve
consistency with 40 CFR
144.21.
The complete text follows.
The Board will
accept written
publ ic
cormient for
a period of 45 days after the date of
publication
in the
Illinois Register.
ORDER
The Board
proposes to
amend
35 Ill. Adm. Code 704 to
read
as follows:
TITLE
35:
ENVIRONMENTAL
PROTECTION
SUBTITLE
G:
WASTE
DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
b:
PERMITS
PART
704
UIC PERMIT PROGRAM
SUBPART A:
GENERAL PROVISIONS
Section
704.101
Content
704.102
Scope
of the Permit
or Rule Requirement
704. 103
Identification of Aquifers
704.104
Exempted Aquifers
704.105
Specific Inclusions and Exclusions
704.106
Classification
of Injection Wells
704.107
Definitions
SUBPART
B:
PROHIBITIONS
Section
704.121
Prohibition
of
Unauthorized
Injection
704.122
Prohibition
of Movement of Fluid
into USDW
704.123
Identification of USDW and Exempted Aquifers
704.124
Prohibition
of
Class
IV Wells
SUBPART
C:
AUTHORIZATION OF UNDERGROUND
INJECTION BY RULE
Section
704.141
Existing
Class
I
and
III
Wells
704.142
Existing Class
IV Wells,
not
into USDW (Renumbered)
704.143
Expiration of Authorization
704.144
Requirements
93—117
-8-
704.145
Existing Class
IV Wells
704.146
Class
V Wells
704.147
Requiring
a Permit
704.148
Inventory Requirements
704.149
Requiring other
Information
704.150
Requirements for Class
I
and
III Wells authorized by Rule
704.151
RCRA Interim Status for Class
I Wells
SUBPART 0:
APPLICATION FOR PERMIT
Section
704.161
Application
for Permit; Authorization by Permit
704.162
Area Permits
704.163
Emergency Permits
704.164
Signatories
to Permit Applications
SUBPART
E:
PERMIT CONDITIONS
Section
704.181
Additional Conditions
704.182
Establishing UIC Permit Conditions
704.183
Construction Requirements
704.184
Corrective Action
704.185
Operation Requirements
704.186
Hazardous
Waste
Requirements
704.187
Monitoring and Reporting
704.188
Plugging and Abandonment
704.189
Financial Responsibility
704.190
Mechanical Integrity
704.191
Additional Conditions
704.192
Waiver of Requirements by Agency
704.193
Corrective Action
SUBPART F:
REQUIREMENTS FOR WELLS
INJECTING HAZARDOUS WASTE
Section
704.201
Applicability
704.202
Authorization
704.203
Requirements
SUBPART G:
FINANCIAL RESPONSIBILITY FOR CLASS
I
HAZARDOUS WASTE
INJECTION WELLS
Section
704.210
Applicability
704.211
Definitions
704.212
Cost Estimate
for Plugging and Abandonment
704.213
Financial Assurance for Plugging and Abandonment
704.214
Trust Fund
704.215
Surety Bond Guaranteeing Payment
704.216
Surety Bond Guaranteeing Performance
704.217
Letter of Credit
704.218
Plugging
and
Abandonment
Insurance
704.219
Financial
Test and Corporate Guarantee
704.220
Multiple
Financial
Mechanisms
704.221
Financial Mechanism for Multiple Facilities
704.222
Release of the Owner
or Operator
704.230
Incapacity
93—118
—9-
704.240
Wording of
the Instruments
AUTHORITY:
Implementing Sections
13 and
22.4 and authorized
by Section
27 of
the Environmental Protection Act
(Ill.
Rev. Stat.
1987,
ch.
111
1/2, pars.
1013,
1022.4 and 1027).
SOURCE:
Adopted
in R81-32,
at 47
PCB 95,
at
6
Ill. Reg. 12479, effective as
noted
in
35
Ill. Adm. Code 700.106;
amended
in R82—19,
at
7 Ill. Reg. 14402,
effective
as
noted
in
35
Ill.
Adrn. Code 700.106; amended
in R83—39,
at
55
PCB
319, at
7
Ill.
Reg.
17338, effective December 19,
1983;
amended
in R85—23
at
10
Ill.
Reg. 13290, effective July 29, 1986;
amended
in R87—29
at
12
Ill.
Reg.
6687,
effective March 28,
1988;
amended
in R88—2
at
12
Ill. Reg.
13700,
effective August
16, 1988;
amended
in R88-17
at
12
Ill. Reg.
effective
SUBPART
C:
AUTHORIZATION OF UNDERGROUND
INJECTION BY
RULE
Section 704.143
Expiration of Authorization
The authorization provided
in Section
704.141
shall
expire upon the earliest
of the
following:
a)
Upon
the effective date of the permit
or
permit denial,
if
a
permit
application
has been
filed
in
a timely manner
as
specified in Section
704.161(b)(1);
or
(~ARDNOTE:
Derived
from 40 CFR 144.21(a)(1)
(1987).)
b)
If
a permit application
has
not been filed
in
a timely manner as
specified
in Section 7O4.161(b)(1);
or
(BOARD NOTE:
Derived
from 40 CFR 144.21(a)(2)
(1987).)
c)
If the person
authorized
by
rule under Section 704.141
fails to
comply with Section 704.144 or
704.148;
or
(BOARD NOTE:
Derived from 40 CFR 144.21(c) and
144.26 (1987).)
~4j
February 2,
1986,
unless,
at that
time,
there
is
a pending UIC
permit
application for the injection previously authorized by rule.
AHtheP4~at4eR~y ~~4-e
~ay eeAt+RHe
th~F+Ag
the pe~~e~ey
ef the YG
peFF~+t
appl4eat4eRç e~eeptthat a~ys~eha~theP+~at+eAsha~ex~4~~e
eR
~e~s~iaPy
2T
1989.
(BOARD NOTE:
Derived
from 40 CFR 122.37(a)(1)(i)(C)
(1981).)
~BeaFdNete~ See 49 G~R144v214a~~~
(Source:
Amended
at
12
Ill.
Reg.
,
effective
IT
IS
SO ORDERED
93—119
-10-
I, Dorothy M.
Gunn, Clerk of the
Illinois Pollution Control Board,
hereby
certify that the above proposed Opinion
and Order was adopted
on the
c~7
day
of
~
,
1988,
by
a vote of 7ô
Dorothy
M.
ç~7nn,
Clerk
Illinois Pol’lution Control
Board
93—120