ILLINOIS POLLUTION CONTROL BOARD
    September
    17,
    1987
    IN THE MATTER OF:
    UIC UPDATE, USEPA REGULATIONS
    )
    R87—29
    (1—1—87 THROUGH 6—30—87)
    PROPOSAL FOR PUBLIC COMMENT
    PROPOSED OPINION OF THE BOARD
    (by J.
    Anderson):
    By
    a separate Order, pursuant to Section 13(c)
    of the
    Environmental Protection Act
    (Act),
    the Board is proposing
    to
    amend the UIC regulations.
    The Board
    invites public comment
    for
    45 days after publication
    of the proposal
    in
    the Illinois
    Register.
    On August
    20, 1987 the Board opened this docket for the
    purpose of updating
    the UIC rules
    to agree with
    recent USEPA
    amendments.
    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.
    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 UIC
    regulations are found
    at 40 CFR 144 and 146.
    This rulemaking
    updates Illinois’
    UIC rules to correspond with federal amendments
    during the period January
    1 through June
    30,
    1987.
    The Federal
    Register utilized
    is
    as follows:
    52 Fed.
    Reg.
    20671
    June
    2,
    1987
    The Board has shifted from
    a quarterly
    to
    a semiannual
    updating of the UIC rules
    in anticipation
    of the Governor signing
    H.B.
    1867.
    The Board will usually batch USEPA amendments
    at
    six
    month intervals,
    and seek
    to finalize the adoption process prior
    to the end of the next six month period.
    This should simplify
    the process, since
    it will no longer be necessary
    to attempt
    to
    propose
    a quarterly update before the prior quarter is done,
    which often happens.
    HISTORY OF RCRA and UIC ADOPTION
    The Illinois RCRA and UIC (Underground Injection Control)
    rules,
    together with more stringent state rules particularly
    applicable
    to hazardous waste,
    include the following:
    81—345

    —2--
    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
    (Proposed)
    729
    Landfills:
    Prohibited Wastes
    730
    UIC Operating Requirements
    731
    Underground Storage Tanks
    Special procedures
    for RCRA cases are included in Parts
    102,
    103,
    104 and 106.
    Adoption
    of these
    rules has proceeded
    in several stages.
    The Phase
    I RCRA rules were adopted and amended as follows:
    R81—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 rules were adopted as
    follows:
    R8l—32
    47 PCB 93, May 13,
    1982;
    October
    15,
    1982,
    6
    Ill.
    Reg.
    12479.
    The UIC rules were amended
    in R82—l8, which
    is referenced
    above.
    The UIC rules 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 tJIC rules:
    R85—23
    June
    19,
    1986;
    10
    Ill. Reg.
    13274, August
    8, 1986.
    R86—27
    Dismissed April
    16,
    1987
    (No USEPA amendments
    through 12/31/86).
    R87—29
    This Docket
    (1/1/87 through 6/31/87)
    81—346

    —3—
    The Phase
    II RORA rules included adoption of Parts 703 and
    724, which established
    the permit program and final TSD
    standards.
    The Phase
    II rules were adopted and amended as
    follows:
    R82—19
    53 PCB
    131, July
    26,
    1983,
    7
    Ill. Reg.
    13999,
    October
    28,
    1983.
    R83—24
    55 PCB
    31, December
    15,
    1983,
    8 Ill.
    Reg.
    200,
    January
    6,
    1984.
    On September
    6,
    1984,
    the Third District Appellate Court
    upheld the Board’s actions in adopting R82—19 and R83—24.
    (Commonwealth Edison et al.
    v.
    IPCB,
    127 Ill. App.
    3d
    446;
    468 NE
    2d 1339 (Third Dist.
    1984).)
    The Board updated
    the RCRA rules
    to correspond with USEPA
    amendments
    in several dockets.
    The period
    of the USEPA
    rules
    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—l
    July
    11, 1986;
    10
    Ill.
    Reg.
    13998, August 22,
    1986.
    (7/1/85
    ——
    1/31/86)
    R86—l9
    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
    Ill.
    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;
    11
    Ill.
    Reg.
    13435, August 14,
    1987.
    (7/1/86
    ——
    9/30/86)
    R87—5
    Proposed July
    16,
    1987;
    11
    Ill.
    Reg.
    13199, August
    14,
    1987.
    (10/1/86
    ——
    12/31/86)
    R87—26
    Proposed September
    4,
    1987,
    (1/1/87
    ——
    6/31/87)
    R87—32
    Correction
    to R86—1, September
    4,
    1987.
    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:
    81—347

    —4—
    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
    a
    USEPA delisting
    at the request
    of Amoco:
    R85—2
    April
    24,
    1986;
    10
    Ill.
    Reg.
    8112, effective May 2,
    1986.
    The Board has procedures
    to be
    followed
    in cases before
    it
    involving
    the
    RCRA
    rules:
    R84—lO
    62 P08 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.
    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 rules adopted October
    23,
    1986;
    10
    Ill.
    Reg.
    19787, effective November
    5,
    1986,
    The Board’s action
    in adopting emergency rules
    in R86—9 was
    reversed
    (CBE and IEPA v.
    IPCB et a?., First District, January
    26,
    1987).
    Permanent rules are presently the subject of
    hearings.
    DETAILED DISCUSSION
    The single USEPA amendment,
    in the June
    2,
    1987
    Federal
    Register, contains only technical corrections
    resulting from
    amendments
    to the Safe Drinking Water
    Act.
    As it turns
    out, most
    of the amended provisions have no Illinois counterpart,
    affecting
    USEPA administered programs only.
    Most of the amendments
    proposed below are technical corrections
    to the Board rules,
    resulting from such things
    as changes
    to the APA and codification
    requirements.
    81—348

    —5—
    Section 702.104
    For the
    reasons discussed below in connection with the
    definitions of “radioactive waste” and “total dissolved solids”
    the Board
    is proposing to add references
    to
    10 CFR
    20 and 40 CFR
    136
    to the table of incorporations by reference.
    Also,
    for the
    reasons discussed
    in Section 704.122,
    the Board
    is adding an
    incorporation of the primary drinking water standards of
    40 CFR
    142.
    This Section
    is proposed for amendment
    in R87—26,
    Some of
    the changes indicated may actually be made
    in that Docket prior
    to action on this Docket,
    Section 702.110
    USEPA has amended
    the definition of
    “SDWA”
    (Safe Drinking
    Water
    Act)
    to include recent amendments.
    The Board has updated
    its reference.
    The Board has also made
    a number
    of editorial
    corrections
    to the definitions table.
    This list of definitions was orginally adopted based on the
    consolidated permit rules of old 40 CFR 122,
    At that time
    it was
    difficult to tell which definitions applied
    to the RCRA and UIC
    programs, and which applied to air and water programs.
    The Board
    has reviewed the definition set and proposed
    to delete
    definitions with no obvious function in these programs.
    The
    Board solicits comment
    on these proposed deletions.
    The Board has deleted the specific reference
    to future
    revisions
    of the application form from the definition of
    “application”,
    The definition clearly encompasses
    forms
    promulgated
    in the future by the Agency pursuant to Section 39(a)
    of the Act even without specifically stating.
    In “approved program” the Board has updated
    a reference
    to
    the deconsolidated
    RCRA
    rules on program approval.
    The Board has
    also added
    the equivalent UIC reference from
    40 CFR 144.3.
    The
    Board solicits comment as
    to whether
    this definition
    is necessary
    in the State program.
    New requirements
    on incorporations by reference have been
    added to the Administrative Procedure Act.
    This has caused the
    Board
    to look closely to determine whether references
    to USEPA
    rules are incorporations by reference which would require
    compliance with new procedures.
    The reference
    in “approved
    program”
    is not an incorporation by reference,
    Rather,
    the
    definition
    is referencing USEPA’s decision
    in approving state
    programs.
    The reference to the federal
    rules and statute serves
    to identify the USEPA decision being referenced.
    By way of
    contrast, an incorporation by reference would
    be a rule which
    provided that the Agency or Board decided whether programs were
    “approved”, utilizing
    the USEPA standards
    for program approval.
    The APA prohibits incorporation by reference of future
    amendments
    (“forward incorporations”),,
    In the definition of
    81—349

    —6—
    “approved program”
    the Board intends
    that state programs which
    USEPA might approve
    in the future based on amended
    rules would be
    “approved programs.”
    The point
    is that USEPA approved
    a RCRA
    or
    UIC program based
    on its current rules, as opposed
    to approving,
    for example,
    a water quality plan under Section 302
    of
    the Clean
    Water Act.
    The Board
    has added
    a date
    to all references
    to federal
    rules and statutes.
    Unless these are incorporations by
    reference,
    they are not intended
    to cut off future amendments to
    the rules.
    Rather,
    the point
    is
    to specify
    a certain edition
    so
    that,
    in the future,
    a person can refer
    to
    a definite rule or
    statute and track
    it
    to the present.
    This should avoid the
    problems which have risen
    in this Part from the USEPA renumbering
    of 40 CFR 122 and 123.
    The Board
    has reviewed all
    of the definitions below and
    determined that only three include an incorporation by
    reference.
    In those definitions
    the Board
    has added
    a citation
    to the incorporations by reference Section which contains the
    information required by the APA.
    The Board has modified the definition
    of “disposal”
    to more
    closely correspond with the definition
    in
    40 CFR 270.2.
    The definition
    of “draft permit”
    has been modified to remove
    the phrase “revoke and reissue.”
    As was discussed
    in the Board’s
    Opinion
    in R85—23 and R86—1, permit revocation
    is
    a Board
    function, which proceeds without
    a draft permit.
    The Board has
    utilized the term “reissuance”
    to describe the process
    by which
    the Agency cancels an old permit and replaces
    it with
    a new
    one.
    The Board has proposed
    to amend this definition for
    consistency.
    The Board has modified the indentation
    in the definition
    of
    “existing HWM facility”
    to more closely follow the USEPA rule,
    Under
    the codification rules
    the Board
    is not allowed
    to use
    subsection labels in
    a definition,
    but must rely entirely on
    level of
    indentation to express subordination.
    Placing
    the word
    “either” in
    a separate paragraph seems
    to make the definition
    more closely follow the federal intent.
    The Board has added the January 31,
    1986 date
    to the
    definition of
    “final authorization.”
    The Board solicits comment
    as
    to whether
    this
    is correct, especially considering the
    ambiguity surrounding
    authorization of program portions mandated
    by HSWA.
    The Board has proposed
    to delete the reference
    to
    35 Ill,
    Adm.
    Code 809 from the definition of “manifest.”
    As the term
    is
    used
    in
    the 700’s series,
    the term seems to be restricted to the
    Part 722 manifest.
    Section 700.303 provides that compliance with
    the Part 722 manifest requirement satisfies the Part 809
    require~e~t~
    81—350

    —7—
    The Board
    has proposed
    to delete
    the federal references from
    the definition
    of “NPDES.”
    Instead the Board will reference only
    the derivative State program pursuant to Section 12(f)
    of the Act
    and 35 Ill.
    Adm.
    Code
    309.
    This eliminates several
    federal
    references which
    could
    be construed as incorporations
    by
    reference.
    The Board has also proposed
    to replace the definition of
    “POTW” with
    a reference
    to the definition
    in the pretreatment
    rules proposed in R86-44, which presumably will be
    in place by
    the time the Board takes final action on this proposal.
    The
    Board has crafted
    a better State definition which
    is central
    to
    that Part.
    The definition of
    “radioactive waste” appears
    to be
    a true
    incorporation by reference of the NRC standards
    of 10 CFR 20.
    The Board has added
    a reference
    to Section 702.104,
    and amended
    that Section as discussed above.
    The Board solicits comment
    as to whether
    there
    is
    a better
    State reference for the “Section 404 program.”
    The definition of “SIC Code” appears
    to be
    a true
    incorporation by reference.
    The Board has added
    a reference to
    35
    Ill.
    Adm.
    Code 720.111,
    in which the full APA incorporation by
    reference already exists.
    The definition of
    “total dissolved solids” includes
    a
    reference
    to the USEPA test methods of
    40 CFR 136.
    This appears
    to be
    a true
    incorporation by reference,
    The Board has added
    a
    reference
    to Section 702.104, and amended
    that Section as
    discussed above.
    The Board has proposed
    to delete the federal references from
    the definition of “UIC.”
    As used
    in the Board
    rules,
    this term
    seems
    to simply mean the Illinois underground injection control
    program, which has already been approved.
    The Board has corrected
    a typographical error
    in the
    definition of “USDW”
    (Underground Source
    of
    Drinking Water).
    The
    reference should be
    to water with more than 10,000 mg/L total
    dissolved solids (rather than “solvents”),
    The Board has also
    proposed
    to modify the levels of indentation
    in this definition
    along
    the same lines
    as
    is discussed above
    in connection with
    “existing HWM facility.”
    The Board has proposed
    to delete the definitions of
    “waters
    of the U.S.”
    and “wetlands.”
    These are not found
    in the 40 CFR
    144.3 or 270.2 definitions
    and
    to serve
    no direct function
    in the
    RCRA or UIC programs.
    81—351

    —8—
    Section 704,101
    This Section
    is drawn from 40 CFR 144.1, which USEPA has
    amended
    to update its reference
    to the SDWA.
    As
    it exists, the
    Board
    rule does not have this reference.
    However,
    the Board has
    proposed to add references which are appropriate
    in a State rule.
    Section 704.106
    This Section is drawn from 40 CFR 144.6, which USEPA has
    amended.
    The definition
    of Class
    II wells
    in Section
    704.106(b)(l)
    has been modified
    to include wells which
    inject
    fluids associated with natural gas storage operations.
    Note that
    Class
    II wells are regulated by the Department
    of Mines and
    Minerals,
    rather
    than the Board.
    It
    is necessary
    for the Board
    to include
    a definition
    of
    this Class
    of wells
    to avoid the
    implication that wells associated
    with petroleum and gas
    production and storage would be Class V wells.
    Section 704.122
    This Section
    is drawn from 40 CFR 144.12,
    which USEPA has
    amended
    to update references and
    to add new requirements
    resulting from the amendments.
    Most
    of these concern enforcement
    by USEPA pursuant
    to the SDWA in states without primacy.
    They
    are not appropriate
    in Illinois rules.
    Section 704.122(e)
    has been amended, pursuant to USEPA
    amendment,
    to allow
    the Agency
    to take emergency action as soon
    as
    it learns that contaminants have entered
    a USDW, without
    having
    to wait for entry
    into
    a public water supply.
    The Board
    has also added
    a reference
    to
    the Agency’s seal authority under
    Section
    34
    of
    the Act.
    This will allow the Agency
    to act under
    Section
    34(a)
    of the Act to seal equipment without having
    to show
    “an immediate danger
    to health,”
    as would be
    required for action
    under Section
    34(b)
    of the Act
    in the absence of
    a Board
    rule.
    The Board has added
    a
    reference
    to the incorporation by
    reference of the national primary drinking water standards
    of 40
    CFR 142,
    discussed above
    in connection with Section 702.104.
    The Board has also corrected an apparent erroneous cross
    reference
    at the end of Section 704.122(b).
    This Proposed Opinion supports the Board’s Proposed Order
    for public comment
    of this same
    day.
    81—352

    —9—
    I,
    Dorothy
    M. Gunn,
    Clerk
    of
    the Illinois Pollution Control
    Board, here~ycertify that the above Proposed Opinion was adopted
    on the
    ,~‘7~-~--
    day of
    ~
    ,
    1987,
    by
    a vote of
    ~
    Dorothy
    M. Gunn, Clerk
    Illinois Pollution Control Board
    81—353

    Back to top