General Corrective Amendments——All Sections, As NecessarY

ILLINOIS POLLUTION CONTROL BOARD

August

 11, 1994

IN THE MATTER OF:

)

R94—5

UIC UPDATE, USEPA REGULATIONS

)

 (Identical

 in Substance Rules)

(6—1—93 THROUGH 12—31—93)

)

Proposal for Public Comment.

PROPOSED OPINION OF THE BOARD

 (by R.C.

 Flemal):

Pursuant to Sections 13(c)

 and 22.4(a) of the Environmental

Protection Act (Act),

 the Board proposes amendments to the

Underground Injection Control

 (UIC) regulations.

Both Sections 13(c)

 and 22.4(a) provide for quick adoption

of regulations that are “identical

 in substance” to federal

regulations and that Title VII of the Act and Section

 5 of the

Administrative Procedure Act

 (APA)

 shall not apply.

 Because this

rulemaking is not subject to Section 5 of the APA,

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,

 146, and 148.

 This

rulemaking updates UIC rules to correspond with federal

amendments made in the period from July

 1 through December 31,

1993.

 The USEPA action during this period

 is as follows:

Federal Action

 Summary

58 Fed. Reg.

63890

 Clarification of current requirements

 (Dec.

3,

 1993)

 for wells authorized by rule,

 the rules

for financial responsibility obligations

of parties to a well transfer,

the

criteria for demonstrating mechanical

integrity through annulus pressure

monitoring records, and the authority of

the UIC program director to require

information on any well.

PUBLIC COMMENTS

The Board will receive public comment on this proposal for a

period of 45 days following its publication in the Illinois

Register.

 The Board will delay filing any adopted rules with the

Secretary of State for

 30 days after adoption, particularly to

allow U.S. EPA review.

 The complete text of the proposed

amendments appears in a separate order adopted this day.

2

HISTORY OF RCRA,

 liST and UIC ADOPTION

AGENCY OR BOARD ACTION?

EDITORIAL CONVENTIONS

The Board appended three routine discussions at the end of

this opinion.

 The first is a summary history of the Illinois

RCRA and UIC programs.

 It lists all actions taken to adopt and

maintain these programs since their inceptions.

 It includes a

listing of all site—specific rulemaking and adjusted standards

proceedings filed that relate to these programs.

 It also lists

all USEPA program authorizations issued to date.

 The second

 is a

discussion of how the Board codifies requirements that call for

state determinations, such as for exemptions,

 exceptions,

 etc.

The third discussion relates to our use of language in the

codification of identical—in—substance rules.

 We intend these as

reference aids for interested persons in the regulated community.

DISCUSSION

In a single action dated December 3,

 1993,

 U.S. EPA

undertook four basic sets of clarifying amendments.

 Each basic

set has a distinct impact on the Illinois UIC regulations.

In

addition to the amendments directly derived from the federal

amendments involved, the Board is undertaking a number of

“housekeeping” amendments to correct certain aspects of the base

regulatory text.

 This discussion focuses on each by subject

matter and the Illinois Section impacted.

Financial Responsibility——Sections 702.110.

 704.142.

 704.150

&

704.152

U.S. EPA amended the financial responsibility requirements

at 58 Fed. Reg.

 63895,

 on December

3,

 1993 to clarify the

financial responsibility requirements for the parties to a well

transfer.

 It added definitions of “transferee” and “transferor”

to 40 CFR 144.3

 (corresponding with 35

 Ill. Adm. Code 702.110).

It amended 40 CFR 144.28(d)

 (corresponding with 35 Ill.

 Adm. Code

704.150(d)), by amending paragraphs

 (d)(l)

and

 (d)(2);

renumbering

 (f) (2)

and

 (f) (3)

to

 (f) (5)

and

 (f) (6); and adding

paragraphs

 (d) (5),

 (d) (6), and

 (f) (2) through

 (f) (4),

 so that a

transferor of a Class

 I or Class III well must now maintain

financial responsibility for the well until notified by U.S. EPA

that the transferee has adequately demonstrated financial

responsibility for the well or the well has been, plugged and

abandoned or converted in compliance with the regulations.

 u.s.

EPA now requires, at 40 CFR 144.28(1)

 (corresponding with 35

 Ill.

Adm. Code 704.150(1)), that a notice of transfer submitted to the

Agency include an agreed date certain

by

which the transferee

will demonstrate financial responsibility for the injection well.

This provision authorizes the transferee to inject until it has

3

failed to prove responsibility.

 40 CFR 144.21(c) (7)

(corresponding with 35 Ill.

 Adm. Code 704.142(g)) was added to

require an immediate cessation of injection

 if the Agency

notifies the owner or operator that the transferee has failed to

adequately demonstrate financial assurance.

 40 CFR 144.52(a) (7)

(corresponding with 35

 Ill. Adm. Code 704.189(a))

 and 40 CFR

144.28(d)(l)

 (corresponding with 35 Ill.

 Adm. Code 704.150(d) (1))

now require an owner or operator and the transferee to each

maintain financial responsibility for the well until the well is

converted,

 plugged and abandoned, or the owner or operator

receives notice from the Agency that the transferee has

adequately demonstrated financial responsibility.

The

demonstration of financial responsibility was to have been made

within a year of when U.S. EPA approved the Illinois program (see

below)

 or when designated in the notice of transfer of

operational control,

 if the transfer was later, under amended

40

CFR 144.28(d) (2)

 (corresponding with 35 Ill. Adm.

 Code

704.150(d) (2)).

U.S. EPA also simultaneously revised the financial assurance

requirements, at 40 CFR 144.28(d) (5)

and

 (d) (6)

 (corresponding

with 35 Ill.

 Adm. Code 704.150(d) (5)

and

 (d)(6)), to require

notice to the Agency of any proceedings in bankruptcy involving

the owner or operator.

 If the owner or operator has provided a

financial statement for proving financial responsibility,

 it must

immediately cease injection until

 it provides alternative

financial responsibility.

 40 CFR 144.21(c) (5)

 (corresponding

with 35 Ill.

 Adm. Code 704.142(e)) was added to require an

immediate cessation of injection if the owner or operator fails

to provide alternative financial assurance upon commencement of

 bankruptcy proceedings.

The Board made a small number of corrections to the federal

text.

 In adapting the federal language to Section 704.142, the

Board corrected the improper cross—reference to 40 CFR

144.28(d) (7)

 at 40 CFR 144.21(c) (5) to 35

 Ill. Adm. Code

704.150(d)(6).

 We also added indefinite articles to subsections

(a) through

 (e) and references to the appropriate statutory

authority for the Agency or a court to order immediate cessation

of injection at subsection

(f)

 of that Section.

 We substituted

“it” for “he” at Section 704.150(1) (3)

 for clarity.

Other corrections relate to adapting the Illinois

regulations to accommodate the federal text.

 For example, there

is a near linear correspondence in the structures of 40 CFR

144.28 and 35 Ill.

 Adm. Code 144.150.

 To enhance the

relationship,

 the Board inserted nonsubstantive explanatory text

at subsections

 (e),

 (g) (2), and

 (h) (2)

 to correspond with federal

provisions that have not been made part of the Illinois rules.

We added similar language at Section 704.142.

 The Board invites

comment on our approach to the financial responsibility

amendments.

4

Authorization bY Rule——Sections 704.121, 704.141 through 704.144.

704.146 throu~h704.150

 & 704.161

U.S.

 EPA amended the authorization by rule requirements at

58 Fed. Reg.

 63895,

 on December 3,

 1993 for the purposes of

clarification.

 Minor clarifying amendments to 40 CFR 144.11

(corresponding with 35 Ill. Adm. Code 704.121) simplify the

wording, and appear to refocus the authorization by rule to the

well itself.

 Amendments to 40 CFR 144.17(a)

 (formerly the

preamble; corresponding with 35

 Ill. Adm. Code 704.141(a))

 state

the conditions under which authorization by rule occur:

 (1) the

injection occurred within one year of federal authorization of

the state’s UIC program, or

 (2) the owner or operator properly

inventoried the well.

 It also states the conditions for

authorization, that the owner or operator manage the well in

compliance with the UIC regulations.

 What was formerly

designated subsection

(a)

 in the federal rules

 (corresponding

with 35 Ill. Adm. Code 704.143)

 is now subsection

(b)

 as a result

of renumbering the preamble language.

 Subsection

 (b) also

received amendments that designate when authorization by rule

terminates.

 Formerly, the criteria for termination were the

grant of a permit,

 a permit denial,

 a failure to timely file a

permit application, and a failure to comply with substantive

requirements.

 Now,

 authorization by rule terminates when a

 permit is granted, plugging and abandonment, and well conversion.

40 CFR 144.21(c)

 (corresponding with 35

 Ill. Adm.

 Code 704.142)

was added.

 It recites conditions under which an owner or

operator injecting into a well authorized by rule must terminate

injection.

 These include a permit denial;

 a failure to timely

submit a permit application, inventory information, financial

assurance,

 or other

 information; or upon notification from the

Agency that the well lacks integrity or that a transferee has not

demonstrated financial assurance.

 As a result of the additions

to this provision,

 subsections

 (b) and

 (c) were renumbered to

subsections

(d)

and

(e)

 (corresponding with 35 Ill. Adm. Code

704.141(b)

 and 704.144(e), respectively).

40 CFR 144.24

 (corresponding with 35 Ill.

 Adni. tode 704.146)

contains the authorization by rule provisions for Class V

injection wells.

 U.S. EPA amended this section to include that

authorization by rule expires upon a grant of permit and that an

owner or operator is prohibited from injection upon a permit

denial or a failure to timely submit a permit application,

inventory information,

 or requested information.

40 CFR 144.25

 (corresponding with 35

 Ill.

 Adni.

 Code 704.147)

recites when the Agency may demand a permit application.

The

amendments appear aimed at shifting the focus of authorization

from the owner or operator to the well itself in subsections

(a)

and

 (c), and they shift from termination of authorization upon

certain occurrences to prohibition against injection.

The

5

amendments to 40 CFR 144.25

 (corresponding with 35 Ill.

 Adm. Code

704.148, which relates to inventory requirements, make similar

shifts at the preamble.

 At subsections

(d)

 (amended) and

(e)

(added), U.S. EPA gives deadlines for submission of inventory

information.

 The general deadline has shifted from one year from

attaining authorization by rule to the date when U.S. EPA

approved the state’s UIC program (see discussion below), unless

the well owner or operator had filed a permit application within

one year of when the federal program became effective.

The

Agency needs not require inventory information of the owner or

operator of

 a well that has RCRA interim status.

 For Class

IV

wells, the deadline given is 60 days of that effective date.

For

Class V wells, U.S. EPA now allows the owner or operator to

resume injection 90 days after submitting the inventory required

information, unless

 it receives

 a notification from the Agency

that injection may not resume or that it may resume sooner.

The

 owner or operator of a Class V well that started injection prior

to one year after federal approval of the state program must

submit the inventory information by May

2,

 1995.

 If injection

begins after Nay

2,

 1994,

 the owner or operator must submit the

inventory information before beginning injection.

40 CFR 144.27

 (corresponding with 35 Ill.

 Adm. Code 704.149)

was reorganized slightly,

 but U.S. EPA again shifted the focus at

subsection

(c)

 (formerly

 (b))

 from termination of authorization

by rule to a prohibition on injection upon certain failures of

the owner or operator.

 40 CFR 144.31(a)

 (corresponding with 35

Ill. Adm. Code 704.161(a)), pertaining to permit applications was

substantially reworded, but the only substantive changes appear

to be that an owner or operator injecting into a well authorized

by rule must ultimately apply for a permit unless the

authorization is for the life of the well and that authorization

no longer terminates upon denial of a permit.

 40 CFR

144.31(c)(2)

 (corresponding with 35 Ill.

 Adni.

 Code 704.161(b) (2))

was amended solely to show the renumbering of 40 CFR 144.21(b) to

144.21(d).

 Subsection

 (e) (10)

 (corresponding with subsection

(e) (2))

 of that section was added to require an owner or operator

to submit a plugging or abandonment report.

The Board has followed the federal amendments, making only

minor changes in the text for the sake of clarity and conformity

with the Board’s drafting style.

 Designation of actual dates in

place of the federal “upon the effective date of

.“

 and minor

stylistic changes are discussed more fully

 in following segments

of this discussion.

 We added “any of” to Sections 704.143(a),

704.146(b),

 and 704.149(c); “submitted” to subsection Section

704.143(b),

 “that

 is” to Section 704.147(a); “the owner or

operator of” to Section 704.147(a); broke Section 704.147(b)

 into

subsections; added

 “U.S.

 EPA” at Section 704.148(d) (2), where the

effective date of the federal program was apparently intended;

added “that

 it” at Section 704.148(e) (4); repunctuated Section

704.150(b) (3)

 for clarity;

 added “is submitted” to Section

6

704.150(f) (2) (A) (i); substituted “permit condition” for “by

letter” at Section 704.150(f) (2) (B), since that is how the Agency

must require compliance under the Act; and added “the applicant

shall submit a” to Section 704.161(e) (2) to accommodate the

changed structure of the Illinois regulations.

 The Board invites

public comment on its approach to the federal authorization by

rule amendments.

Mechanical

 Inteqrity Testing Requirements-—Sections 704.181

&

730.108

U.S. EPA amended the mechanical integrity testing

requirements.

 40 CFR 144.51(p)

 (corresponding with 35 Ill.

 Adm.

Code 704.181(g)) was removed, paragraph

(0)

 (corresponding with

subsection

 (g) was redesignated as

(p)

 (corresponding with

subsection

 (g)),

 and new paragraphs

 (o) and

 (q) were added

(corresponding with subsections

 (f) and

 (h)).

 New paragraph

(0)

allows the imposition of

 a permit condition that plugging and

abandonment of

 a well will not allow the migration of fluids into

or between underground sources of drinking water

 (USDWs),

 or the

Agency can require revision of the plugging and abandonment plan

or deny the permit.

 This provision explicitly states that

termination of injection is not abandonment.

 New paragraph

(q)

requires the owner or operator to maintain and establish

mechanical integrity on a schedule established by the Agency.

If

the Agency determines,

 based on information submitted by the

owner or operator, that the well lacks integrity,

 it must send a

notice to that effect to the owner or operator.

 The owner

or

operator must cease injection within 48 hours of receiving the

notice from the Agency.

U.S. EPA also amended the substantive mechanical integrity

testing requirements of Section 146.8

 (corresponding with 35 Ill.

Adm. Code 730.108) to set forth the procedure for monitoring the

annulus pressure with greater specificity.

 Section 146.8(b) (1)

(corresponding with 35 Ill.

 Adm. Code 730.108(b) (1)) now requires

repeated testing of the tubing—annulus pressure,

 at sufficient

frequency as to be representative,

 as determined by the Agency,

at a pressure different from atmospheric pressure at the surface.

New Section 146.8(f)

 (corresponding with 35

 Ill. Adm. Code

730.108(f))

 allows the Agency to require additional or

alternative tests

 if the required testing does not sufficiently

demonstrate that there

 is no movement of fluid into or between

USDWs.

The Board has adapted the mechanical integrity testing

requirements without substantive change.

 We invite public

comment on our approach to the federal mechanical integrity

testing requirements.

7

Recordskeepinq and Reporting Requirements--Section 704.194

U.S. EPA added new 40 CFR 144.17

 (corresponding with 35

 Ill.

Adin.

 Code 704.194).

 This provision allows the Agency to require

an owner or operator to establish and maintain records and make

reports,

 in order to demonstrate compliance.

 The Board has

reworded the federal language for consistency with the

 requirements of Illinois administrative law.

 The reworded

provision requires the Agency to require the maintenance of such

records and submission of such reports by permit condition as the

Agency deems are necessary to demonstrate compliance with the Act

and the Illinois regulations.

 The Board invites public comments

on our approach to this recordskeeping and reporting requirement.

Deletion of Class V Well Inventory Requirement--Section 738.152

U.S. EPA deleted the 40 CFR 146.52

 (corresponding with 35

Ill. Adm. Code 730.152) requirement for reporting the existence

of a Class V injection well and for submitting inventory

information for that well within a year of when U.S. EPA approved

the state program

 (i.e.,

 by March

3,

 1983).

 The Board

incorporated this repeal without deviation.

Plenary Corrections to the Permitting Rules and Related

Provisions——Parts 700,

 702,

 703, 704, 705, and 730

The Board

 is using this opportunity to make several

corrections related to the earliest adoption and implementation

of the UIC and RCRA permitting rules.

 Some of these problems

arose in the time since the Board initially adopted the

regulations as a result of an intervening restructuring of the

federal regulations.

 Others of the problems arose

 in the early

adoption of these regulations, and the Board surmounted those by

resort to a series of reference to events that would occur

 in the

future——events that have long since occurred.

 The result is that

the Board must correct references to federal regulations in

several Board Notes and several recitations of effective dates

in

the rules.

The first set of corrective amendments relates to references

to federal regulations.

 The Board initially based the RCRA

Subtitle C and UIC permitting rules on the federal consolidated

permit rules.

 Those federal rules set forth the federal permit

requirements and procedures for all programs,

 air,

 water,

and

solid waste,

 in a single,

 central location:

 40 CFR 122 through

124.

 The Board adopted a consolidated structure for the permit

rules, with 35

 Ill.

 Adm. Code 702 through 705 setting forth the

permitting requirements for the RCP.A Subtitle C and UIC programs.

Parts 702,

 largely drawn on 40 CFR 122 and 705 set forth

requirements applicable to both programs.

 Part 703 applied only

8

to

RCRA

permitting, and Part 704 applied only to UIC permitting.

Part 700 was a set of general provisions applicable to both

programs, but which also set forth the interplay with other

regulations, such as non—hazardous solid waste (landfills,

infectious waste, and special waste hauling) and water pollution

control.

 As is the Board’s custom, we added Board Note

 references to the federal rules from which we derived each

Section of the UIC and RCRA permit rules.

U.S. EPA deconsolidated the permit rules on April

1,

 1983,

at 48 Fed. Reg.

 14146.

 40 CFR 122 and 123 now apply exclusively

to Clean Water Act permits (NPDES and wastewater pretreatment).

40 CFR 144 sets forth the UIC permit requirements, and 40 CFR 270

sets forth the

RCRA

Subtitle C permit requirements.

 40 CFR 124

still includes general procedural requirements for all programs.

After the deconsolidation of the federal permit rules, the

Board began updating the Board Notes to reflect the changed

source for each provision.

 We restricted the updates to Sections

open for other amendments.

 Since that time, the Board Note

references

 in several Sections have changed to reflect the new

references.

 However, several Sections remain with references to

now defunct federal provisions.

 For these reasons, we use this

opportunity to change all remaining references in Parts

 702,

 703,

and 704, without regard to whether those Sections would have

included amendments based on the December 3,

 1993 federal action

that

 the basis of this rulemaking.

 Further, we included Part

703, which pertains only to RCR.A permitting at this time,

 rather

than deferring this action to the next RCRA Subtitle C update,

because of the convenience of performing this task at one time.

 It has been over 11 years since U.S. EPA deconsolidated the

permit rules, and we cannot see any reason to delay this action

for a simple preference for performing the update amendments

incidental to other, federally-derived amendments.

The

difficulty of tracing the federal amendments only increases with

the passage of time.

Thus, relative to the references to federal regulations, the

Board has now amended the text of the rules to correct references

to 40 CFR 122 to the current references in 40 CFR 144

 (UIC)

and

270

 (RCRA).

 Amended

are text at Section 702.101(a) (3) and the

Board Notes at Sections 702.101,

 702.103,

 702.124,

 702.125,

702.140,

 702.142 through 702.149,

 702.151, 702.162 through

702.164,

 703.126, 703.154,

 703.156,

 703.184,

 703.200,

 703.201,

703.205,

 703.224, 703.242,

 703.246,

 704.102 through 704.105,

704.121,

 704.123, 704.143,

 704.146,

 704.182 through 704.186,

704.190 through 704.193.

 We added

 a reference to the appropriate

40 CFR 270 provision at Sections 702.110 and 702.141, where there

were formerly only references to 40 CFR 144.

 We added references

to 40 CFR 270 at Section 703.158,

 703.208,

 703.210,

 703.211, and

703.283, where there were formerly no references,

 and corrected

the references at Sections 703.186,

 703.206,

 703.245, and

9

703.247.

 We corrected references to 40 CFR 144 at Sections

704.141, 704.144,

 704.213,

 704.261, and 704.263.

 We added

references to 40 CFR 144 at Sections 704.142, where none appeared

before.

 We repealed Section 702.102, rather than update the

Board Note,

 since that Section no longer has a federal

counterpart and it serves no useful function at this time.

The

Board repealed Section 703.244 because it duplicates Section

703.247 and virtually repealed 704.164 because it duplicates

Section 702.163.

 We corrected a reference to 40 CFR 124 at

Sections 705.121 and added them at Sections 705.127,

 705.201

through 705.205, and 705.212.

 In addition to these corrections,

and as a routine matter, we have corrected the Board Note format

where necessary and have reference the 1993 Code of Federal

Regulations for 40 CFR 144 and the 1992 Code for 40 CFR 270,

since these are the latest versions available and in the Board’s

possession.

The second set of corrective amendments relates to effective

date references in the text and in source notes.

 The federal

RCRA statute and SDWA, the basis for the federal UIC program,

both provide that federal law preempts all state regulations not

approved by U.S. EPA.

 For this reason,

 in the initial adoption

and amendments of the UIC and RCRA regulations, the Board adapted

 the effective dates in the text and the required source notes for

each Parts

 700,

 702,

 704,

 705,

 720 through 723 and 725.

At

Section 700.106 we stipulated that the provisions of the UIC and

RCRA rules would become effective upon federal authorization of

the applicable program, and that the state would not issue

permits until the date that U.S. EPA granted that authority.

For

the effective dates of the regulations,

 in the main source note

to each Part and in each Section source note the Board cross—

referenced to Section 700.106 for the effective date.

 At the

time the regulations and initial amendments occurred, no federal

authorizations had occurred.

As is set forth in greater detail in the historical summary

incorporated into this opinion, U.S. EPA granted Illinois interim

authorization to administer the RCRA Subtitle C program effective

Nay 17,

 1982.

 It conferred final authorization effective January

31,

 1986.

 The interim authorization allowed the implementation

of the Illinois substantive generator, transporter, and interim

status treatment, storage, and disposal

 (T/S/D)

 facility

standards.

 The final authorization allowed the state to begin

granting permits for T/S/D facilities.

 U.S.

 EPA granted

authorization for the UIC program effective March

3,

 1984.

 This

allowed implementation of the Illinois substantive UIC

 regulations and the granting of permits by the state.

As for dealing with the corrections to the references to

federal rules,

 discussed above,

 the Board chose to make the

corrections to effective date references as we opened Sections

for federal amendments.

 Similarly to the situation of the

10

references to the consolidated permit rules,

 it is now several

years later,

 and there remain numerous effective date references

to “effective as noted in Section 700.106” throughout the rules.

Section 700.106 itself,

 in turn,

 only contains several references

to “effective upon approval by the U.S.

 EPA”,

 without setting

forth actual dates.

 As noted, those dates are March

3,

 1984 for

UIC regulations and permitting,

 May 17,

 1982 for the substantive

RCRA regulations,

and January 31, 1986 for

RCRA

permitting.

To avoid any further possibility of confusion, we are

beginning the substitution of the actual dates

 in the appropriate

places at this time.

 First, the Board has restructured Section

700.106 so that it now acts as a reference to federal

authorizations and when the Parts involved in the initial

adoption of the UIC and RCRA programs took effect.

 In the course

of reviewing Part 700 for related and other corrections based on

 intervening events since its last amendment in December,

 1983,

we

noted a number of problems with this Part.

 The Section source

notes throughout refer to Section 700.106 for an effective date,

and this Part refers to uncodified rules, of which there are no

longer any.

 Various other provisions perform general, but

unnecessary functions,

 such as outlining the structure of the

Board’s regulations, reciting savings clauses,

 and duplicating

statements of applicability for other Parts.

 The only Section in

this Part that serves any present function essential to the UIC

and

RCRA

regulations, as explained below,

 is Section 700.106.

For these reasons,

 it is easier to delete the provisions than to

repair them,

 so the Board has repealed all of Part 700 but

Section 700.106.

Second, multiple (usually two) references to Section 700.106

have been changed to May 17,

 1982 at the main (Part)

 source notes

to Parts 700

 (three references),

 702,

 705,

 720, 721,

 722,

 723,

and 725.

 The references were changed to March

3,

 1984 for the

main source notes to Parts 704 and 730, even though this means

that the second set of amendments to Part 704

 is technically

listed as effective at an earlier date, December 19,

 1983.

The

Board has opened Sections 730.104 through 730.106,

 730.132, and

730.151 for editorial amendments for the sake of changing their

Section source notes.

Although these actions take care of the references to

Section 700.106 throughout Parts 700,

 702,

 704,

 705, and 730,

it

leaves those in Parts 720 through 723 and 725 intact.

 However,

we cannot complete this task until the next RCRA update,

 since

several of the references appear in substantive RCRA regulations.

To the extent those references remain until then,

 we have updated

Section 700.106, rather than repealing the Part in its entirety.

These corrections of the references to the federal

regulations and the effective dates of the regulations and

amendments has proven very tedious.

 In fact, these corrections

11

now constitute most of the amendments now involved in this

docket.

 Nevertheless, the Board believes that we have already

waited too long to accomplish this housekeeping matter, and we

will put it off no longer.

 We invite comment on our approach to

these corrective amendments.

correction of UIC Pro~ramApproval Date--Sections 702.110,

704.141,

 704.142,

 704.148, 704.150

 & 704.161

U.S. EPA approved the Illinois UIC program on February 1,

1984,

 at 49 Fed.

 Reg. 3991,

 effective March

3,

 1984.

The

regulations previously referred to February

1,

 1984 as the date

of approval.

 Although technically true, that this was the date

of the approval, the authorization was not effective on that

date.

 This was potentially misleading, since several obligations

flowed from that date.

 For this reason, the Board now corrects

the effective date where

 it still appears,

 in Sections 702.110

(“date of approval of the Illinois UIC program”),

 704.148

 (end

Board Note), and 704.161(b)(1)(C).

 Section 705.144(d)

 simply

referred to the effective date of the permit requirements.

We

substitute the UIC effective date of March

3,

 1984 and

RCRA

permitting effective date of January 31,

 1986 at that provision.

The amendments of December 3,

 1993 included references to

the date of approval of the state program as a key date.

 These

appeared at 40 CFR 144.21(a)

 (corresponding with 35 Ill. Adm.

Code 704.141(a) (1)),

 144.22(b)(8)(i)

 (corresponding with 35

 Ill.

Adm. Code 704.142(h)),

 144.26(e)(2)

 (corresponding with 35 Ill.

Adm. Code 704.148(d) (1)),

 and 144.28(d)(2)

 (corresponding with 35

Ill. Adm. Code 704.150(d)(2)).

 The Board made the similar

substitution of the date in these provisions,

 substituting the

actual date intended--even where the provision took the form

 “within one year after the date

.“.

 Where another date,

 such

as “within 60 days of the effective date of this Section”

appeared,

 at Section 704.145, the Board used the actual date

based on computation from the effective date.

 The Board invites

public comment on our correction and substitution of these dates.

Update of General Program Provisions--Sections 702.101 through

702.110

Subpart A of Part 702 includes many general provisions

relating to the regulatory structure in Illinois.

 These include

statements of purpose,

 scope, and applicability for the UIC and

RCRA

permitting rules,

 citation to the substantive regulations

relating to each program, and procedural guidance on permit

appeals and seeking adjusted standard, rulemaking,

 or variance

relief from the Board.

 The review of the permitting rules for

the sake of the above—described amendments indicated a need for

corrective amendment of the provisions of this Subpart.

12

Most of the corrections are of a general nature, discussed

below.

 Others relate to the passage of time.

 At Section

702.101(c) (2), the Board now refers to the substantive

regulations of Parts 726,

 728, 738, and 739, which we have more

recently adopted.

 We repeal Section 702.102,

 since it

essentially duplicates segments of Section 702.101,

 and change

the heading of Section 702.101 accordingly.

 We correct Section

702.103 to indicate the reference to the current state federal

confidentiality provisions,

 and we delete the reference to any

requirements imposed by way of a permit application form.

We

expand Section 702.104,

 so that it now explains the purpose of

its cross—reference.

 We add an explanatory discussion of

identical—in—substance regulation and amend the pre—existing

discussion so that it clearly refers to general rulemaking.

We

made clarifying changes to the Section 702.106 discussion of the

Agency’s adoption of implementing criteria.

 We amended Section

702.107 to clarify the extent of the Board’s authority to review

Agency determinations;

 in order to clarify that many Agency

determinations are not within the scope of the Board’s statutory

authority to review Agency determinations.

 We added a discussion

of adjusted standards to Section 702.108, which was not an option

for relief at the time this Section was originally crafted.

To

Section 702.109, the Board has added language that explains the

differences between a formal and an informal complaint and the

distinction in Board activities upon receiving either.

 Finally,

we added a definition of “Act” to Section 702.110 and

consolidated the definition of “Environmental Protection Act”,

to

 correspond with the numerous citations to the Act throughout

Parts 702 through 705; we change the date of approval from

February

1,

1984

 (when U.S. EPA published the approval)

 to March

3,

1984

 (the date it became effective)

 in the definition of “date

of approval by U.S. EPA of the Illinois UIC program”; and we add

an explanation to the definition of “RCRA” that this refers only

to the Subtitle C program, and does not include the Subtitle D

(municipal solid waste landfill) and Subtitle I

 (underground

storage tank) programs.

 We invite comment on our approach to

these corrective amendments.

General Corrective Amendments——All Sections, As NecessarY

As a routine matter, the Board has engaged

 in a number of

general amendments

 to clean up text where necessary.

 This

includes cleaning up the punctuation and grammar of the existing

base text,

 as well as the text of the federal amendments,

wherever necessary,

 to comport with the Board’s current

conventions of style,

 grammar, and punctuation, and to add

clarity to the rules.

 Some of these amendments have been made

incidental to the amendments noted above.

The amendments are minor,

 and do not warrant individual

discussion.

 “Which” has been changed to “that” where

 it prefaces

13

a restrictive relative clause.

 Commas and semicolons were added

as necessary to add clarity and to set off the last member of

a

series.

 Telephone numbers were formatted so the area code

appears

set

off

with

 dash,

 rather than parentheses.

 Personal

pronouns

were

replaced

with

“it”,

“its”,

and

“their”

the

maximum extent possible, unless a natural person was clearly

intended.

 Where a person pronoun remained, the Board used the

“he or she”/”his or her” construction to avoid gender—biased

usage.

 We added articles,

 adjectives,

 and verbs;

 substituted

prepositions and verbs; rearranged the positions of prepositional

phrases within sentences; and performed many other grammatical

revisions for clarity.

 We invite comment on our approach to

these corrective amendments.

HISTORY OF RCRA SUBTITLE C, UST

AND

UIC ADOPTION

The Illinois UIC (Underground Injection Control), RCRA

(Resource Conservation and Recovery Act)

 Subtitle C,

 and UST

(Underground Storage Tank)

 regulations, together with more

stringent

 state regulations particularly applicable to hazardous

waste,

 include the following Parts of Title 35 of the Illinois

Administrative Code:

700

 Outline of Waste Disposal Regulations

702

 RCRA

Subtitle C and UIC Permit Programs

703

 RCRA Subtitle C Permit Program

704

 UIC Permit Program

705

 Procedures for Permit Issuance

709

 Wastestream Authorizations

720

 General

721

 Identification and Listing

722

Generator

Standards

723

 Transporter Standards

724

 Final TSD Standards

725

Interim

Status

TSD

Standards

726

 Specific Wastes and Management Facilities

728

 USEPA Land Disposal Restrictions

729

 Landfills:

 Prohibited Wastes

730

 UIC Operating Requirements

731

 Underground Storage Tanks

732

 Petroleum Underground Storage Tanks

738

 Hazardous Waste Injection Restrictions

739

 Standards for the Management of Used Oil

Special provisions for RCRA Subtitle C cases are included in

Parts 102,

 103,

 104 and 106 of the Board’s procedural rules.

14

History of RCRA Subtitle C and State Hazardous Waste Rules

Adoption

The Board has adopted and amended the Resource Conservation

and Recovery Act (RCRA)

 Subtitle C hazardous waste rules in

several dockets.

 Dockets R81-22 and R82-18 dealt with the Phase

 I RCRA Subtitle C regulations.

 U.S. EPA granted Illinois Phase I

authorization on May 17,

 1982, at 47 Fed. Reg. 21043

 (May 17,

1982).

 The Board adopted RCRA Subtitle C Phase II regulations in

Parts 703 and 724 in dockets R82-19 and R83-24.

 U.S.

 EPA granted

final authorization of the Illinois RCRA Subtitle C “base

program” on January 31,

 1986, at 51 Fed. Reg. 3778

 (January 30,

1986).

 U.S. EPA granted authorization to “Cluster

 I revisions”

to the Illinois program and granted partial Hazardous and Solid

Waste Amendments

 (HSWA)

 (Pub.

L.

 98—616,

 Nov.

8,

 1984)

authorization effective March

5,

 1988,

 at 53 Fed. Reg.

126

(January 5,

 1988).

 U.S. EPA authorized certain subsequent

amendments and granted further partial HSWA authorizations

effective April

30,

 1990,

 at 55 Fed. Reg. 7320

 (March

1,

 1990),

and June 3,

 1991,

 at 56 Fed. Reg.

13595

 (April

3,

 1991); and

August 14,

 1994,

 at 59 Fed. Reg.

30525

 (June 14,

 1994).

 U.S. EPA

codified its approvals of the Illinois program at 40 CFR 272.700

and 272.701 on November 13,

 1989,

 at 54

 Fed.

 Reg. 37649

 (Sep.

12,

 1989), and on March 31,

 1992, at 57 Fed. Reg. 3731

 (Jan.

31,

1992).

 The entire listing of all RCRA Subtitle C identical in

substance rulemakings follows (with the period of corresponding

federal revisions indicated in parentheses):

R81—22

 45 PCB 317, September 16, 1981

 & February 4,

 1982;

6

 Ill.

 Reg.

 4828,

 April

23,

 1982, effective May

17,

 1982.

 (5/19/80 through 10/1/81)

R82—18

 51 PCB 31,

January

13,

1983;

 7 Ill. Reg.

 2518,

March

1983,

effective

May

17,

1982.

(11/11/81

through

6/24/82)

R82—19

PCB

131,

July

26,

1983,

7

 Ill. Reg.

 13999,

October

28,

 1983,

 effective October

2,

 1983.

(11/23/81

through

10/29/82)

R83—24

 55 PCB 31, December

15,

 1983,

8

Ill.

 Reg.

 200,

January

6,

 1984, effective December 27,

 1983.

(Corrections

R82-19)

R84—9

 64 PCB 427

 & 521, June 13

 & 27,

 1985;

 9 Ill. Reg.

 11964, August

2,

 1985,

 effective July

8

&

24,

1985.

 (1/19/83 through 4/24/84)

R85—22

 67 PCB 175,

 479, December 20,

 1985 and January

9,

1986;

10

 Ill.

 Reg.

 968, January

17,

 1986,

effective January

2,

 1986.

 (4/25/84 through

6/30/85)

15

R86—1

 71 PCB 110, July 11,

 1986;

 10 Ill.

 Reg.

 13998,

August 22,

 1986, effective August 12,

 1986.

(7/1/85 through 1/31/86)

R86—19

 73 PCB 467, October 23,

 1986;

10

 Ill. Reg.

 20630,

December

12,

1986,

effective

December

1986.

(2/1/86

through

3/31/86)

R86—28

 75 PCB 306,

February

5,

 1987; and 76 PCB 195,

March

5,

 1987; 11 Ill.

Reg.

6017,

April

3,

 1987,

effective March 23,

 1987.

 Correction at 77 PCB

235, April 16,

 1987;

11

 Ill.

 Reg.

 8684, May

1,

1987, effective April 21,

 1987.

 (4/1/86 through

6/30/86)

R86—46

 79 PCB 676, July 16,

 1987;

11

 Ill. Reg.

 13435,

August 14,

 1987,

 effective August

4,

 1987.

(7/1/86 through 9/30/86)

R87—5

 82 PCB 391, October 15,

 1987;

11

 Ill. Reg.

 19280,

November 30,

 1987, effective November 10

&

12,

1987.

 (10/1/86 through 12/31/86)

R87—26

 84 PCB

491,

December

3,

 1987;

12

 Ill. Reg.

 2450,

January 29,

 1988,

 effective January

15,

 1988.

(1/1/87 through 6/30/87)

R87—32

 Correction to R86—1;

 81 PCB 163, September 4,

1987;

11

 Ill. Reg.

 16698,

 October 16,

 1987,

effective September 30,

 1987.

R87—39

 90 PCB 267, June 16,

 1988;

12

 Ill. Reg.

 12999,

August 12,

 1988,

 effective July 29,

 1988.

 (7/1/87

through 12/31/87)

R88—16

 93 PCB 513, November

17,

 1988;

 13 Ill.

 Reg.

 447,

January

13,

 1989, effective December 28,

 1988.

(1/1/88

through

7/31/88)

R89—1

 103 PCB

179,

 September 13,

 1989;

13

Ill.

 Reg.

18278, November 27,

 1989, effective November 13,

1989.

 (8/1/88 through 12/31/88)

R89—9

 109 PCB 343, March 8,

 1990;

14

 Ill. Reg.

 6225,

April 27,

 1990, effective April

16,

 1990.

 (1/1/89

through 6/30/89)

R90—2

 113 PCB 131, July 3,

 1990;

14

 Ill. Reg.

 14401,

September 7,

 1990, effective August 22,

 1990.

(7/1/89 through 12/31/89)

R90—11

 121 PCB 97, April

11,

 1991; corrected at 122 PCB

16

305, May 23,

 1991; corrected at 125 PCB 117,

August 8,

 1991; uncorrected at 125 PCB 435, August

22,

 1991;

 15 Ill.

 Reg.

 9323, effective June 17,

1991.

 (Third Third Land Disposal Restrictions)

(4/1/90 through 6/30/90)

R90-17

 Delisting Procedures

 (See below)

R91—1

 125 PCB 119, August 8,

 1991;

 15 Ill. Reg.

 14446,

effective September 30,

 1991.

 (Wood Preserving

Rules)

 (7/1/90 through 12/30/90)

R91—13

 132 PCB 263, April

9,

 1992;

 16 Ill. Reg.

 9489,

effective June 9,

 1992.

 (Boilers and Industrial

Furnaces

 (BIFs)

 Rules)

 (1/1/91 through 6/30/91)

R91—26

 129 PCB 235,

January

1992;

Ill.

Reg.

 2600,

effective February 3,

 1992.

 (Wood Preserving

Rules Compliance Dates)

R92—1

 136 PCB 121, September

17,

 1992;

 16 Ill.

 Reg.

17636, effective November 6,

 1992.

 (7/1/91

through

12/31/91)

R92—10

138

 PCB 549, January 21, 1993;

17

Ill.

 Reg.

 5625,

effective March 26,

 1993.

 (Leak Detection Systems

(LDS)

 Rules)

 (1/1/92 through 6/30/92)

R93—4

——

PCB

——,

 September 23,

 1993;

 17 Ill.

 Reg.

 20545,

effective November 22,

 1993.

 (Used Oil Rules)

(7/1/92

through

12/31/92)

R93-16

PCB

--,

March

17,

1994,

 Supplemental opinion

and order on April

21,

 1994.

 (1/1/93 through

6/30/93)

R94—7

——

PCB

——,

 June 23,

 1994,

 18 Ill.

 Reg.

——,

effective July 29,

 1994.

 (7/1/93 through

12/31/93)

R94—17

 This docket.

 (1/1/94 through 6/30/94)

On September

6,

 1984,

 the Third District Appellate Court

upheld the Board’s actions in adopting R82-19 and R83-24.

(Commonwealth Edison Co.

v.

 PCB,

 127 Ill.

 App.

 3d 446;

 468 N.E.2d

1339

 (3d Dist.

 1984).)

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,

December 21,

 1984, effective December

11,

 1984.

17

This was repealed by R85-22, which included adoption of U.S.

EPA’s dioxin listings.

 Section 22.4(d) was repealed by P.A. 85—

1048, effective January

1,

 1989.

The Board has adopted U.S. EPA delistings at the request of

Amoco and Envirite (the date of the corresponding federal action

is included in parentheses):

R85—2

 69 PCB 314, April 24,

 1986;

10

 Ill.

 Reg.

 8112, May

16,

 1986,

 effective May

2,

 1986.

 (9/13/85)

R87—30

 90 PCB 665,

 June

30,

 1988;

12

 Ill. Reg.

 12070,

July 22,

 1988,

 effective July 12,

 1988.

(11/14/86)

R91—12

 128 PCB 369, December 19,

 1991;

16

 Ill. Reg.

 2155,

effective January 27,

 1992.

 (USX Corp.)

Subsequently, upon the April 30,

 1990 federal authorization

of Illinois granting waste delistings, U.S. EPA transferred

pending delisting petitions to the Board.

 The Board docketed

these as site—specific rulemaking proceedings

 (the name of the

petitioner waste generator appears in parentheses):

R90—18

 Dismissed at 123 PCB 65, June

6,

 1991.

 (USX

Corp.,

 South Works)

R90—19

 Dismissed at 116 PCB 199, November

8,

 1990.

(Woodward Governor Co.)

R90—23

 Dismissed at 124 PCB 149, July 11,

 1991.

(Keystone Steel

 & Wire Co.)

The Board has modified the delisting procedures to allow the

use of adjusted standards in lieu of site—specific rulemakings:

R90—l7

119

PCB

181,

February

28,

1991;

Ill.

 Reg.

 7934,

effective May 9,

 1991.

Waste generators have filed Part 106 adjusted standard

petitions for solid waste determinations with the Board pursuant

to Section 720.130

 (generator name in parentheses):

AS89—4

 Dismissed at 105 PCB 269, November 15,

 1989.

(Safety-Kleen Corp.)

AS89—5

 Dismissed at 113 PCB 111, July

3,

 1990.

 (Safety—

Kleen Corp.)

AS9O-7

 Dismissed at 124 PCB 125, July 11,

 1991.

 (Quantum

Chemical Co.)

18

Waste generators have filed Part 106 adjusted standard

petitions for hazardous waste delistings with the Board pursuant

to Section 720.122

 (generator name in parentheses):

AS91—1

 Granted at 130 PCB 113, February

6,

 1992, and

modified at 133 PCB 189, April 23,

 1992.

(Keystone Steel

 & Wire Co.)

AS91-3

 Granted at 139 PCB 121,

 February 4,

 1993; opinion

issued at 140 PCB

——,

 March 11,

 1993.

 (Peoria

Disposal Co.)

AS93-7

 Granted at

PCB

--,

 February 17,

 1994.

(Keystone Steel

 & Wire Co.)

AS94—10

 Presently pending.

The Board has procedures to be followed in cases before it

involving the RCRA Subtitle C regulations:

R84—10

 62 PCB 87,

 349, December 20,

 1984 and January 10,

1985;

 9 Ill. Reg.

 1383, effective January

16,

1985.

The Board also adopted special procedures to be followed in

certain determinations under Part 106.

 The Board adopted these

Part 106 special procedures in R85-22 and amended them in R86-46,

listed above.

One Part 106 adjusted standard proceeding filed pursuant to

728.106 sought relief from a prohibition against land disposal

(petitioner’s

 name in parentheses):

AS9O—6

 Dismissed at 136 PCB

93,

September

17,

1992.

(Marathon Petroleum Co.)

Other adjusted standard proceedings sought relief from

aspects of the land disposal unit closure and post—closure care

requirements

 (petitioners’ names in parentheses):

AS9O—8

 130 PCB 349, February 27,

 1992.

 (Olin Corp.)

AS91—4

 131 PCB 43, March 11,

 1992.

 (Amoco Oil Co.)

One adjusted standard proceeding sought relief from

 a RCRA

Subtitle C land disposal restriction (petitioner’s name in

parentheses):

AS9O—6

 136 PCB 6, September 17,

 1992.

 (Marathon

Petroleum Co.)

19

Still another adjusted standard proceeding relates to

substantive treatment, storage,

 and disposal facility

requirements of the RCRA Subtitle

regulations

(petitioner’s

name and requirements involved in parentheses):

AS91—10

 Dismissed at

——

PCB

——,

 May 19,

 1994.

 (Cabot

Corp.; secondary containment for tanks)

In another regulatory proceeding, the Board has considered

granting temporary relief from the termination of an exclusion of

a hazardous waste listing in the form of an emergency rule (Peti-

tioner’s name in parentheses):

R91—11

 Dismissed at 125 PCB 295, August 8,

 1991.

 (Big

River Zinc Corp.)

The Board has also adopted requirements limiting and

restricting the landfilling of liquid hazardous wastes, hazardous

wastes containing halogenated compounds,

 and hazardous wastes

generally:

R81—25

 60 PCB 381, October 25,

 1984;

 8 Ill.

 Reg.

 24124,

December 14,

 1984,

 effective December 4,

 1984.

R83—28

 68 PCB 295, February 26,

 1986;

 10 Ill. Reg. 4875,

March 21,

 1986, effective March

7,

 1986.

R86-9

 Emergency regulations adopted at 73 PCB 427,

October 23,

 1986;

 10 Ill. Reg.

 19787, November 21,

1986, effective November 5,

 1986.

The Board’s action in adopting emergency regulations in R86-

9 was reversed by the First District Court of Appeals.

 (Citizens

for a Better Environment

v.

 PCB,

 152 Ill. App.

 3d 105,

 504 N.E.2d

166

 (1st Dist.

 1987).)

History of UIC Rules Adoption

The Board has adopted and amended Underground Injection

Control

 (UIC)

 regulations in several dockets to correspond with

the federal regulations.

 One such docket, R82-18, was a RCRA

Subtitle C docket.

 U.S. EPA authorized the Illinois UIC program

on March

3,

 1984,

 at 49 Fed. Reg. 3991

 (Feb.

1,

 1984); codified

that approval as 40 CFR 147, Subpart 0, at 49 Fed.

 Reg.

20197

(May 11,

 1984);

 and amended the authorization at 53 Fed.

 Reg.

43087

 (OCt.

25,

 1988).

 The entire listing of all UIC rulemakings

follows

 (with the period of corresponding federal revisions

indicated in parentheses):

20

R81—32

 47 PCB 93, May 13,

 1982;

 6 Ill.

 Reg.

 12479,

October 15,

 1982,

 effective February 1,

 1984.

(7/7/81 through 11/23/81)

R82—18

 51 PCB

 31, January 13,

 1983;

7

 Ill.

 Reg.

 2518,

March 4, 1983, effective May 17,

 1982.

 (11/11/81

through 6/24/82)

R83—39

 55 PCB 319, December 15,

 1983;

7

 Ill.

 Reg.

 17338,

December 20, 1983,

 effective December 19,

 1983.

(4/1/83)

R85—23

 70 PCB 311

 & 71 PCB 108, June 20

 & July 11,

 1986;

10

 Ill. Reg.

 13274, August

8,

 1986, effective July

28

 & 29,

 1986.

 (5/11/84 through 11/15/84)

R86—27

 Dismissed at 77 PCB 234, April 16,

 1987.

 (No U.S.

EPA amendments through 12/31/86).

R87—29

 85 PCB 307, January 21,

 1988;

12

 Ill. Reg.

 6673,

April

8,

 1988, effective March 28,

 1988.

 (1/1/87

through 6/30/87)

R88—2

 90 PCB 679, June 30,

 1988;

12

 Ill.

 Reg.

 13700,

August 26,

 1988, effective August 16,

 1988.

(7/1/87 through 12/31/87)

R88—17

 94 PCB 227, December

15,

 1988;

13

 Ill.

 Reg.

 478,

January 13,

 1989,

 effective December

30,

 1988.

(1/1/88 through 6/30/88)

R89—2

 107 PCB 369,

 January 25,

 1990;

14

 Ill.

 Reg.

 3059,

March

2,

 1990, effective February 20,

 1990.

(7/1/88 through 12/31/88)

R89—11

 111 PCB 489, May 24,

 1990;

 14 Ill. Reg.

 11948,

July 20,

 1990,

 effective July 9,

 1990.

 (1/1/89

through 11/30/89)

R90—5

 Dismissed at 109 PCB 627, March 22,

 1990.

(No

U.S.

 EPA amendments 12/1/89 through 12/31/89)

R90—14

 122 PCB 335, May 23,

 1991;

15

 Ill.

 Reg.

 11425,

effective July 24,

 1991.

 (1/1/90 through 6/30/90)

R91—4

 Dismissed at 119 PCB 219,

 February 28,

 1991.

(No

U.S. EPA amendments 9/1/90 through 12/31/90)

R91-16

 Dismissed at 128 PCB 229, December 6,

 1991.

(No

U.S. EPA amendments 1/1/90 through 6/30/91)

21

R92—4

 Dismissed at 133 PCB 107, April

9,

 1992.

 (No U.S.

EPA amendments 7/1/91 through 12/31/91)

R92—13

 139 PCB 361, February 4,

 1993;

17

 Ill.

 Reg.

 6190,

effective April

5,

 1993.

 (1/1/92 through 6/30/92)

R93—6

——

PCB

——,

 August

5,

 1993;

17

 Ill. Reg.

 15641,

effective September 14,

 1993.

 (7/1/92 through

12/31/92)

R93—17

 Dismissed at

——

PCB

-—,

 September 23,

 1993.

(No

U.S.

 EPA amendments 1/1/93 through 6/30/93)

R94—5

 Present docket.

 (7/1/93 through 12/31/93)

In one proceeding filed, the Board granted an adjusted

standard from a UIC land disposal restriction, pursuant to the

procedures outlined above with respect to the RCRA Subtitle C

program (petitioner name in parentheses):

AS92—8

 Granted at

PCB

--,

 February 17,

 1994.

 (Cabot

Corp.;

 no migration exception)

AGENCY OR BOARD ACTION?

Section 7.2(a)(5)

 of the Act requires the Board to specify

which decisions USEPA will retain.

 In addition, the Board is to

specify which State agency is to make decisions, based on the

general division of functions within the Act and other Illinois

statutes.

In situations

 in which the Board has determined that USEPA

will retain decision-making authority, the Board has replaced

“Regional Administrator” with USEPA,

 so as to avoid specifying

which office within USEPA is to make a decision.

In a few instances

 in identical in substance rules,

decisions are

not

appropriate

for

 Agency action pursuant to a

permit application.

 Among the considerations in determining the

general division of authority between the Agency and the Board

are:

1.

 Is the person making the decision applying a Board

regulation,

 or taking action contrary to

 (“waiving”)

 a Board

regulation?

 It generally takes some form of Board action to

“waive”

 a Board regulation.

2.

 Is there a clear standard for action such that the

Board can give meaningful review to an Agency decision?

22

3.

 Does the action result in exemption from the permit

requirement itself?

 If so, Board action is generally

required.

4.

 Does the decision amount to “determining, defining or

implementing environmental control standards” within the

meaning of Section 5(b) of the Act.

 If so,

 it must be made

by the Board.

There are four common classes of Board decision:

 variance,

adjusted standard, site specific rulemaking,

 and enforcement.

The first three are methods by which a regulation can be

temporarily postponed

 (variance)

 or adjusted to meet specific

situations (adjusted standard or site specific rulemaking).

 Note

that there often are differences in the nomenclature for these

decisions between the USEPA and Board regulations.

EDITORIAL CONVENTIONS

As a final

 note, the federal rules have been edited to

establish a uniform usage throughout the Board’s regulations.

For example, with respect to “shall”,

 “will”, and “may”

—

 “shall”

is used when the subject of a sentence has to do something.

“Must” is used when someone has to do something,

 but that someone

is not the subject of the sentence.

 “Will”

 is used when the

Board obliges itself to do something.

 “May” is used when choice

of a provision is optional.

 “Or”

 is used rather than “and/or”,

and denotes “one or both”.

 “Either”...”or” denotes “one but not

both”.

 “And” denotes “both”.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order was

adopted on the

/t~

 day of _________________________

1993,

 by a vote of

______________.

~t.

Dorothy M. G4nn,

 Clerk

Illinois Pollution Control Board