ILLINOIS POLLUTION CONTROL BOARD
August
5,
1993
IN THE MATTER OF:
)
R93—6
UIC UPDATE,
USEPA REGULATIONS
)
(Identical
in Substance Rules)
(7—1—92 THROUGH 12—31—92)
)
Adopted Rule.
Final Order.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
Pursuant to Sections 13(c)
and 22.4(a)
of the Environmental
Protection Act
(Act),
the Board adopts amendments to the
Underground Injection Control
(UIC)
regulations.
Both Sections 13(c)
and 22.4(a)
provide for quick adoption
of regulations which 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,
1992.
The USEPA actions during this period were as follows:
Federal Action
Summary
57
Fed. Reg.
31962
(July 20,
1992)
Stay of technical amend-
ment to Third-Third rules
as they relate to newly—
listed wastes.
57
Fed. Reg.
37194
(Aug.
18,
1992)
Land disposal restric-
tions for newly-listed
wastes.
57
Fed. Reg.
46292
(Oct.
7,
1992)
Revision of testing and
monitoring requirements.
PUBLIC COMMENTS
The Board received public comment on the May 20,
1993
proposal for a period of 45 days following its publication
in the
Illinois Register.
A Notice of Proposed Amendments
for each
of
Parts 730 and 738 appeared in the Illinois Register on June 11,
1993,
at 17 Ill.
Reg.
8428 and 8423.
The Board received two
public comments on the proposal for public comment:
PC 1 Illinois Department of Commerce and Community Affairs
(DCCA),
June
18,
1993
(by Linda
D.
Brand,
Manager,
Regulatory Flexibility Unit)
2
PC
2
Illinois Environmental Protection Agency, July 16,
1993
(by Susan
J.
Schroeder, Associate Counsel, Division of
Legal Counsel)
By PC
1, DCCA stated that it determined that the present
rulemaking will not negatively impact small business.
By PC
2,
the Agency raised
a substantive comment that we discuss later in
this opinion.
The Board will delay filing any adopted rules with the
Secretary of State for 30 days after adoption, particularly to
allow USEPA review.
The complete text of the proposed amendments
follows the discussions of this opinion.
HISTORY OF RCRA, UST and UIC ADOPTION
AGENCY OR BOARD ACTION?
EDITORIAL CONVENTIONS
The Board has 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
The three federal actions that underlie this proceeding each
have a distinct impact on the Illinois UIC regulations.
This
discussion focuses on each by subject matter and the Illinois
Section impacted.
Casing Inspection Logs——Section 730.168(d) (4)
At 57
Fed. Reg.
46294
(Oct.
7,
1992),
USEPA amended
40 CFR
146.68(d) (4), which corresponds with 35
Ill.
Adm. Code
730.168(d) (4)
in the Illinois regulations.
This section sets
forth the requirements for owners or operators of Class
I
hazardous waste injection wells to test the mechanical integrity
of their wells
by running casing inspection
logs.
Formerly,
USEPA required these tests every five years.
The Director could
waive the requirement
if factors indicated that the results of
running the logs would prove unreliable.
As a result of
a
partial settlement of litigation,
in NRDC v.
EPA,
No.
88-1657
(D.C. Cir.), USEPA amended these requirements to generally allow
the owner or operator to perform the tests
as part of
a routine
3
well workover in which the injection string
is pulled.
The
federal rule allows the Director of USEPA to waive the
requirement base’ on the unreliability based on factors relating
to the well.
USEPA further added the condition that the Director
could waive the requirement based on consideration of
satisfactory results from a log run within the last five years.
It also allows the Director to require an owner or operator to
run these logs every five years if there is reason to believe
that the integrity of the long string casing of the well may be
adversely affected by naturally-occurring or man-made events.
The Board amendments follow the federal amendments very
closely.
We allowed the Agency to require the testing, either
during routine workovers or every five years,
by permit
condition.
The Agency’s determinations are based on
consideration of the same factors as are enunciated
in the
federal rule.
However,
for greater clarity,
the Board subdivided
this subsection into smaller subsections.
Subsection
(d) (1)
provides for running the logs during routine workovers,
and
subsection
(d) (2) provides for running them every five years.
Subsection
(d) (1)
is further subdivided into two subsections so
that the two bases for waiving the requirements stand out
distinctly.
A deviation from the federal language appears in subsection
(d) (2).
USEPA provided that the Director could require the five-
year testing “if he has reason to believe” there were adverse
effects on the well casing.
The Board has required the Agency to
“determine that it has reason to believe” there were effects.
We
made this change because Illinois administrative law requires the
Agency to act on established standards.
.~
Granite City
Division of National Steel Co.
v. PCB
(Apr.
15,
1993)
,
No.
72850
(slip op.).
We believe that requiring the Agency to make
a
formal determination that there is reason to believe will satisfy
this requirement.
We do not feel free to delete the federal
“reason to believe” language due to our experience in another
federal identical-in-substance program.
See R91-3,
SDWA Update,
PC 12—PC 15.
If the Board were to have deleted this language,
the Agency would only have been able to require the five—year
testing
if it determines that the effect had indeed occurred.
This would have rendered the Illinois rules less stringent than
the federal regulations.
The Board invited public comment on its approach to Section
730.168(d)(4).
We received no comments
in response.
We construe
this silence as tacit approval of the approach taken.
Relaxation
of Prohibition
of Land Disposal
of Diluted Wastes——
Section 738.101(d)
USEPA amended
40 CFR 148.1(d)
at 57
Fed. Reg.
31963
(July
20,
1992).
This corresponds with
35
Ill.
Adm.
Code 738.101(d)
in
4
the Illinois UIC regulations.
The effect of the federal
amendment is to allow the injection of diluted wastes that no
longer exhibit any charactecistic of hazardous wastes into Class
I hazardous waste injection wells.
Formerly, USEPA amended this
provision to allow the injection into Class
I nonhazardous waste
injection wells.
The Board adopted the previous amendments in
docket R92-13.
In that docket we noted that the federal action
was the subject of federal litigation in Chemical Waste
Management.
Inc.
v.
EPA (1992),
976 F.2d
2
(D.C.
Cir.).
We noted
that we are constrained to follow the language of the federal
regulations notwithstanding the federal litigation until USEPA
follows the court’s mandate and amends or repeals its rule.
We
added our usual Board Note indicating the federal litigation and
noting that the rule may be unenforceable as a result.
USEPA issued an interim final rule at 58
Fed. Reg.
29860,
on
May
24,
1993,
that responded to the Chemical Waste Management
court’s mandate.
The amendments involved did not include 40 CFR
148.1.
Since the proposal for public comment, the Board has
added a statement in the Board Note to Section 738.101(d) that
indicates this federal action.
In amending Section 738.101(d),
the Board followed the
federal amendments.
We again highlight the earlier discussion of
the federal litigation and the Board Note that mentions its
possible effect on the rule.
We felt constrained to follow the
USEPA regulatory lead
in this matter.
In adapting the federal requirements to the Illinois
regulations,
the Board deviated from the federal structure.
The
federal rule
is divided into two paragraphs,
so that paragraph
(d) (1)
relates to Class
I nonhazardous waste injection wells and
paragraph
(d) (2)
relates to Class
I hazardous waste injection
wells.
In R92-l3,
the Board had already divided this provision
to highlight the two elements:
(1)
Class
I nonhazardous
injection well and
(2) exhibiting no hazardous characteristic.
Since federal paragraph
(d) (2)
recites essentially the same
thing,
except that it relates only to Class
I hazardous waste
injection wells
(and reverses the order of the two elements),
we
decided not to make this provision more convoluted by further
subdivision.
Subsection
(d) combines both the hazardous and
nonhazardous waste wells
so that subsection
(d) (1) recites Class
I hazardous waste injection wells and Class
I nonhazardous waste
injection wells and subsection
(d) (2)
recites the no hazardous
characteristic requirement.
We added the “Class I” reference for
clarity because this
is the type of well defined at
35
Ill.
Adrn.
Code 704.106(a)
(corresponding to 40 CFR 144.6(a)).
The Board invited public comment on our approach to Section
738.101(d).
Agency PC
2 states
in full that “Proposed Section
738.101(d)
of the IPCB’s rules
is not identical to Section
148.1
of the Federal Register, Volume
57,
N.
139, dated July 20,
1992,
5
page 31963.”
The Board conceded this
in the opinion discussion
that acr~mpaniedthe proposal for public comment.
Rather than
reiterate duplicative federal language,
the Board consolidated
two federal requirements.
The object in Section 7.2 proceedings
is not
“identical” language, but provisions that are “identical
in substance” to the federal requirments.
The Board believes
that since the text of Section 738.101(d) contains substantive
aspects that are identical to the substance of what is required
by USEPA, we have fulfilled our mandate.
However, we did revise
the proposed language in response to PC
2.
Re—examination of the federal language reveals that a clause
was omitted from the text of the proposed rule.
The federal
exception as to hazardous waste injection wells extends only to
those wells “that receive only non—prohibited hazardous wastes”.
The Board restores these qualifying words to subsection
(d) (1).
We intend that these words apply to Class
I hazardous waste
injection wells, but not to Class
I ~~-hazardous
waste injection
wells.
Prohibitions on Inlection of Newly—Listed Wastes——Section 738.117
USEPA added 40 CFR 148.17 at 57
Fed.
Reg.
37263
(Aug.
18,
1992).
This new provision is part of the broader rulemaking that
imposed land disposal restrictions for newly listed wastes as
part of the RCRA program.
The RCRA aspects of these “land-bans”
is the subject of RCRA update docket R93-4.
The federal UIC-only
regulation is divided into three subsections.
Subsection
(a),
listing 19 wastes,
includes a prohibition and was effective
November 9,
1992.
Subsection
(b), which lists four additional
wastes,
includes a prohibition and will become effective on June
30,
1995.
Subsection
(c)
lists the typical three conditions
under which the prohibitions do not apply:
(1)
the wastes meet
the 40 CFR 268,
Subpart D treatment standards
(corresponding to
35 Ill. Adm. Code 728.Subpart D),
(2)
the wastes are the subject
of an exemption from
a prohibition
(corresponding with an
adjusted standard from
a prohibition),
or
(3)
if an extension of
the effective date
is granted pursuant to
40 CFR 148.4
(corresponding to 35
Ill. Adm. Code 738.104).
In adopting the federal requirements to the Illinois UIC
regulations, the Board followed the federal rules nearly exactly.
We reformatted subsections
(a)
and
(b)
to list the wastes
individually.
We further kept with our routine practice and
deleted the past effective date of subsection
(a).
The Board
corrected the date of proposed updated citation to the Federal
Register source of the federal amendments to 1992.
The Board invited public comments
on our approach to Section
738.117.
We received no comments
in response.
We construe this
silence as tacit approval of the approach taken.
6
HISTORY
OF
RCRA,
UST
and
UIC
ADOPTION
The Illinois
JIC (Underground Injection Contr’l),
RCRA
(Resource Conservation and Recovery Act),
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:
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
731
Underground Storage Tanks
738
Hazardous Waste Injection Restrictions
Special provisions for RCRA cases are included in Parts
102,
103,
104 and 106 of the Board’s procedural rules.
History of RCRA and State Hazardous Waste Rules Adoption
The Board has adopted and amended the Resource Conservation
and Recovery Act
(RCRA)
hazardous waste rules in several dockets.
Dockets R81-22 and R82-l8 dockets dealt with the Phase
I RCRA
regulations.
USEPA granted Illinois Phase
I authorization on May
17,
1982, at 47
Fed.
Reg.
21043.
The Board adopted RCRA Phase
II
regulations
in Parts 703
and 724
in dockets R82-l9 and R83—24.
USEPA granted final authorization of the Illinois RCRA “base
program” on January 31,
1986,
at 51
Fed. Reg.
3778 (January 30,
1986).
USEPA 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).
USEPA 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).
USEPA
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
identical
in substance
7
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
4,
1983,
effective May 17,
1982.
(11/11/81
through 6/24/82)
R82—19
53 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 to R82—l9)
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)
R86—l
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—l9
73 PCB 467, October 23,
1986;
10
Ill. Reg.
20630,
December 12,
1986,
effective December
2,
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
6/3 0/86)
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,
8
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-ll
121 PCB 97, April
11,
1991; corrected at
122 PCB
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)
R9l—l
125 PCB 119, August
8,
1991;
15
Ill.
Reg.
14446,
effective September
30,
1991.
(Wood Preserving
Rules)
(7/1/90 through 12/30/90)
R9l—13
132 PCB 263, April
9,
1992;
16
Ill. Reg.
9489,
effective June
9,
1992.
(Boilers and Industrial
Furnaces
(BIF5)
Rules)
(1/1/91 through 6/30/91)
R91—26
129 PCB 235, January
9,
1992;
16
Ill.
Reg.
2600,
effective February
3,
1992.
(Wood Preserving
Rules Compliance Dates)
R92—l
September
17,
1992;
16
Ill.
Reg.
17636, effective
November
6,
1992.
(7/1/91 through 12/31/91)
R92—10
January
21,
1993;
17
Ill.
Reg.
5625,
effective
9
March
26,
1993.
(Leak Detection Systems
(LDS)
Rules)
(1/1/92 through 6/30/92)
R93—4
Next RCRA Docket; May 27,
1993 proposal for public
comment
(June 25,
1993,
17
Ill.
Reg.
9170,
9193,
9245,
9317,
9417,
9445,
9453,
9528,
& 9588).
(7/1/92 through 12/31/92)
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.
This was repealed by R85-22,
which included adoption of
USEPA’s dioxin listings.
Section 22.4(d) was repealed by P.A.
85—1048, effective January
1,
1989.
The Board has adopted USEPA 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—l2
128 PCB 369, December 19,
1991;
16
Ill. Reg.
2155,
effective January 27,
1992.
(USX)
Subsequently, upon the April
30, 1990 federal authorization
of Illinois granting waste delistings,
USEPA 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.)
10
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;
15 Ill.
Reg.
7934,
effective May 9,
1991..
Waste generators have filed Part 106 adjusted standards
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.)
The Board has granted hazardous waste delistings by way of
adjusted standards
(generator name in parentheses):
AS91—1
130 PCB 113, February
6,
1992.
(Keystone Steel
and Wire Co.)
AS91—3
February
4,
1993; opinion issued March
11,
1993.
(Peoria Disposal Co.)
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 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 September
17,
1992.
(Marathon Petroleum
Co.)
Other adjusted standard proceedings sought delayed closure
of land disposal units
(petitioners’ names
in parentheses)
AS9O—8
130 PCB 349, February
27,
1992.
(Olin Corp.)
11
AS91—4
131 PCB 43, March
11,
1992.
(Amoco Oil Co.)
Still another adjusted standard proceeding relates to
substantive physical requirements
of the RCRA regulations:
AS91-10
Presently pending.
(Cabot Corp.)
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
(Petitioner’s name
in parentheses):
R91-11
Presently pending.
(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:
R8l—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-l8, was a RCRA
docket.
USEPA authorized the Illinois UIC program on February
1,
1984,
at 49
Fed. Reg.
3991.
The entire listing of all UIC
rulemakings follows
(with the period of corresponding federal
revisions indicated in parentheses):
R8l—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)
12
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
USEPA 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
USEPA 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
USEPA amendments 9/1/90 through 12/31/90)
R9l-l6
Dismissed at 128 PCB 229, December
6,
1991.
(No
USEPA amendments 1/1/90 through 6/30/91)
R92—4
Dismissed at 133 PCB 107, April
9,
1992.
(No
USEPA amendments 7/1/91 through 12/31/91)
R92—13
February
4,
1993;
17
Ill.
Reg.
6190,
effective
April
5,
1993.
(1/1/92 through 6/30/92)
R93-6
This Docket; May 20,
1993 proposal for public
comment
(June
11,
1993,
at
17
Ill.
Reg.
8428
and
8423).
(7/1/92 through 12/31/92)
13
In one proceeding filed,
a petitioner seeks an adjusted
standard from
a UIC land disposal restriction, pursuant to the
procedures outlined .~bovewith respect to the
RCRA
program
(petitioner name
in parentheses):
R92-8
Presently pending.
(Cabot Corp.)
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?
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.
14
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”.
ORDER
The
Board
hereby proposes the following amendments to the
Illinois
UIC
regulations
at Sections 730.168,
738.101,
and
738.117.
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE
G:
WASTE
DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
d:
UNDERGROUND
INJECTION
CONTROL AND UNDERGROUND
STORAGE
TANK
PROGRAMS
PART
730
UNDERGROUND
INJECTION
CONTROL OPERATING REQUIREMENTS
SUBPART
A:
GENERAL
Section
730.101
Applicability,
Scope
and
Effective Date
730.102
Laws
Authorizing
Regulations
730.103
Definitions
730.104
Criteria for Exempted Aquifers
730.105
Classification of Injection Wells
730.106
Area
of
Review
730.107
Corrective Action
730.108
Mechanical Integrity
730.109
Criteria for Establishing Permitting Priorities
730.110
Plugging and Abandoning Class
I and III Wells
SUBPART
B:
CRITERIA
AND
STANDARDS APPLICABLE
TO CLASS
I NON-HAZARDOUS WELLS
Section
730.111
Applicability
730.112
Construction Requirements
730.113
Operating, Monitoring and Reporting Requirements
730.114
Information to be Considered by Agency
SUBPART C:
CRITERIA AND STANDARDS APPLICABLE
TO CLASS
II WELLS
Section
15
730.121
Adoption of Criteria and Standards Applicable to Class
II Wells by the Illinois Department of Mines and
~i
nerais
SUBPART
D:
CRITERIA
AND
STANDARDS APPLICABLE
TO CLASS III WELLS
Section
730.131
Applicability
730.132
Construction Requirements
730.133
Operating, Monitoring and Reporting Requirements
730.134
Information to be Considered by the Agency
SUBPART F:
CRITERIA AND STANDARDS APPLICABLE
TO CLASS V INJECTION WELLS
Applicability
Inventory and Assessment
SUBPART G:
CRITERIA
AND
STANDARDS APPLICABLE TO CLASS
I
HAZARDOUS WELLS
Applicability and Definitions
Minimum Criteria for Siting
Area of Review
Correction Action for Wells
in the Area of Review
Construction Requirements
Logging, Sampling and Testing Prior to New Well
Operation
Operating Requirements
Testing and Monitoring Requirements
Reporting Requirements
Information to be Evaluated by the Director
Closure
Post—Closure
Care
Financial Responsibility for Post—Closure Care
AUTHORITY:
Implementing Sections
13 and 22.4 and authorized by
Section 27 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1987 and 1988 Supp.
ch. 111 1/2,
pars.
1013, 1022.4 and 1027).
SOURCE:
Adopted in R8l-32,
47 PCB 93,
at
6
Ill.
Reg.
12,479,
effective as, noted in
35 Ill.
Adm.
Code 700.106; amended in R82-
19,
53 PCB 131 at
7
Ill. Reg.
14426 effective as noted
in 35
Ill.
Adm.
Code 700.106; recodifled at 10 Ill.
Beg.
14174; amended in
R89-2 at 14
Ill. Reg.
3130,
effective February 20,
1990;
amended
Section
730.151
730.152
Section
730.161
730. 162
730. 163
730.164
730. 165
730.166
730.167
730.168
730.169
730. 170
730.
171
730.
172
730. 173
in R89—ll at
14
Ill. Reg
effective
16
SUBPART G:
CRITERIA AND STANDARDS APPLICABLE TO CLASS I
HAZARDOUS WELLS
Section 730.168
Testing and Monitoring Requirements
Testing and monitoring requirements shall at a minimum include:
a)
Monitoring of the injected wastes.
1)
The owner or operator shall develop and follow an
approved written waste analysis plan that
describes the procedures to be carried out to
obtain a detailed chemical and physical analysis
of
a representative sample of the waste, including
the quality assurance procedures used.
At a
minimum, the plan shall specify:
A)
The parameters for which the waste will be
analyzed and the rationale for the selection
of these parameters;
B)
The test methods that will be used to test
for these parameters; and
C)
The sampling method that will be used to
obtain a representative sample of the waste
to be analyzed.
2)
The owner or operator shall repeat the analysis of
the injected wastes as described
in the waste
analysis plan at frequencies specified
in the
waste analysis plan and when process or operating
changes
occur
that may significantly alter the
characteristics
of
the
waste stream.
3)
The
owner
or
operator shall conduct continuous
or
periodic monitoring of selected parameters as
required by permit condition.
4)
The
owner
or
operator
shall
assure
that
the
plan
remains
accurate
and
the analyses remain
representative.
b)
Hydrogeologic
compatibility
determination.
The
owner
or
operator
shall
submit
information
demonstrating
that
the
wastestream
and
its anticipated reaction products
will
not
alter
the
permeability,
thickness
or
other
relevant
characteristics
of
the
confining
or
injection
zones
such
that
they
would
no
longer
meet
the
requirements
specified
in
Section
730.162.
C)
Compatibility
of
well
materials.
17
1)
The owner or operator shall demonstrate that the
waste stream will be compatible with the well
materials with which the waste
is expected to come
into contact, and submit to the Agency a
description of the methodology used to make that
determination.
Compatibility for the purposes of
this requirement
is established
if contact with
injected
fluids
will
not
cause
the
well
materials
to
fail
to
satisfy
any
design
requirement
imposed
under
Section
730.165(b)
2)
The
Agency
shall
require
continuous
corrosion
monitoring of the construction materials used
in
the well for wells injecting corrosive waste, and
may
require
such
monitoring
for
other
wastes,
by:
A)
Placing
coupons
of the well construction
materials in contact with the waste stream;
or
B)
Routing
the
waste stream through a loop
constructed with the material used
in the
well;
or
C)
Using an alternative method approved by
permit condition.
3)
If a corrosion monitoring program is required:
A)
The test must use materials identical to
those used in the construction of the well,
and such materials must be continuously
exposed to the operating pressures and
temperatures
(measured at the well head)
and
flow rates of the injection operation; and
B)
The owner or operator shall monitor the
materials
for
loss of mass,
thickness,
cracking,
pitting and other
signs
of
corrosion on
a quarterly basis to ensure that
the well components meet the minimum
standards
for
material
strength
and
performance set forth in Section 730.165(b).
d)
Periodic mechanical integrity testing.
In fulfilling
the requirements of Section 730.108,
the
owner
or
operator of
a Class
I hazardous waste injection well
shall conduct the mechanical integrity testing as
follows:
1)
The long string casing,
injection tube,
and
annular seal must be tested
by
means of
an
18
approved pressure test with a liquid or gas
annually and whenever there has been
a well
workover;
2)
The
bottom-hole
cement
must
be
tested
by
means
of
an
approved
radioactive
tracer
survey
annually;
3)
An
approved
temperature,
noise,
or other approved
log
must
be
run
at least once every five years to
test for movement of fluid along the borehole.
The Agency may require such tests whenever the
well
is worked over;
4)
Running casing inspection logs.
~j
Casing inspection logs must be run
cit lca~t
once
every
five ycarswhenever the owner or
operator
conducts
a
workover
in which the
iniection string is pulled,
unless the Agency
~ypermit
spccific~ailows
otherwise~
jj.
due to well construction
or
other
factors whichthat limit the test’s
reliability,
or
.jJJ
based
on the satisfactory results of a
casing
inspection
log
run
within
the
previous five years.
~j.
The A~encvmay require by permit that the
owner or operator run a casing inspection log
if it determines that
it has reason to
believe that the integrity of the long string
casing of the well may be adversely affected
by naturally—occurring or man—made events
and
5)
Any
other
test
specified
by
permit
condition
in
accordance with the procedures
in Section
730.108(d)
may also be used.
e)
Ambient Monitoring.
1)
Based on a site—specific assessment
of the
potential for fluid movement from the well or
injection
zone,
and on the potential value of
monitoring wells to detect such movement,
the
Agency shall require the owner or operator to
develop a monitoring program.
At a minimum, the
Agency shall require monitoring of the pressure
buildup in the injection zone annually,
including
at a minimum,
a shut down of the well for
a time
19
sufficient to conduct
a valid observation of the
pressure fall-off curve.
2)
When prescribing a monitoring system the Agency
may also require:
A)
Continuous monitoring for pressure changes
in
the first aquifer overlying the confining
zone.
When such
a well is installed,
the
owner or operator shall, on a quarterly
basis, sample the aquifer and analyze for
constituents specified by permit condition;
B)
The use of indirect,
geophysical techniques
to determine the position of the waste front,
the water quality in a formation designated
by permit condition,
or to provide other
site—specific data;
C)
Periodic monitoring of the groundwater
quality in the first aquifer overlying the
injection zone;
D)
Periodic monitoring
of the ground water
quality in the lowermost USDW;
E)
Any additional monitoring necessary to
determine whether fluids are moving into or
between
USDWs;
and
F)
The Agency may require seismicity monitoring
when it has reason to believe that the
injection activity may have the capacity to
cause seismic disturbances.
BOARD NOTE:
Derived from 40 CFR 146.68
11992),
as admended at 53~Fed. Beg.
281-8-146294, July 26Qctober
7,
l9&8-22.
(Source:
Amended at
17
Iii. Reg.
_________,
effective
___________
1993)
20
TITLE
35:
ENVIRONMENTAL
PROTECTION
SUBTITLE
G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
d:
UNDERGROUND INJECTION CONTROL AND UNDERGROUND
STORAGE TANK PROGRAMS
PART 738
HAZARDOUS WASTE INJECTION RESTRICTIONS
SUBPART A:
GENERAL
Purpose Scope and Applicability
Definitions
Dilution Prohibited as a Substitute for Treatment
Case-by—Case Extensions of an Effective Date
Waste Analysis
SUBPART
B:
PROHIBITIONS ON INJECTION
Section
738.110
Waste
738.111
Waste
738.112
Waste
738.114
Waste
738.115
Waste
738.116
Waste
148.117
Waste.___~~_~
SUBPART
C:
PETITION
STANDARDS
AND
PROCEDURES
Section
738.120
Petitions to Allow Injection of
a Prohibited Waste
738.121
Required Information to Support Petitions
738.122
Submission,
Review and Approval or Denial of Petitions
738.123
Review of Adjusted Standards
738.124
Termination of Adjusted Standards
AUTHORITY:
Implementing Section 13 and 22.4 and authorized by
Section 27 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, pars.
1013,
1022.4 and 1027)
415
ILCS 5/13,
22.4 and 27).
SOURCE:
Adopted in R89-2
at 14
Ill. Beg.
3059,
effective
February 20,
1990; amended in R89-11 at
14
Ill.
Reg.
11948,
effective July 9,
1990; amended in R90-14 at
15 Ill.
Beg.
11425,
effective July 24,
1991; amended in R92—13 at
17
Ill.
Reg.
6190,
effective April
5,
1993; amended in R93—6
at
17
Ill. Req.
effective
,
1993.
Section
738.101
738.102
738.103
738.104
738.105
Specific Prohibitions
-
Solvent Wastes
Specific Prohibitions
-
Dioxin-Containing Wastes
Specific Prohibitions
-
California List Wastes
Specific Prohibitions
-
First Third Wastes
Specific Prohibitions
-
Second Third Wastes
Specific Prohibitions
-
Third Third Wastes
So~cificProhibitions
—
Newly-Listed Wastes
21
SUBPART
A:
GENERAL
Seztion 738.101
Purpose Scope and Applicability
a)
This Part identifies hazardous wastes that are
restricted from disposal into Class
I hazardous waste
injection wells and defines those circumstances under
which a waste,
otherwise prohibited from injection, may
be injected.
b)
The requirements of this Part apply to owners or
operators of Class
I hazardous waste injection wells
used to inject hazardous waste.
c)
Wastes otherwise prohibited from injection may continue
to be injected:
1)
If an extension from the effective date of a
prohibition has been granted pursuant to Section
738.104; or
2)
If an adjusted standard has been granted in
response to a petition filed under Section
738.120; or
3)
If the waste is generated by a conditionally
exempt small quantity generator,
as defined in
35
Ill.
Adin. Code 721.105.
d)
Wastes that are hazardous only because they exhibit a
hazardous characteristic,
and which are otherwise
prohibited
from injection under this Part,
are not
prohibited
from injection
if the wastes:
1)
Are
disposed into a Class
I nonhazardous waste
injection
well
or
a Class
I
hazardous
waste
injection
well
that
receives only non—prohibited
hazardous
wastes,
as such are defined under
35
Ill.
Adm.
Code
730.106(a);
and
2)
Do not exhibit any prohibited characteristic of
hazardous waste identified
in
35
Ill. Adm.
Code
721.Subpart C at the point of injection.
BOARD NOTE:
The exemption for injection of
diluted hazardous waste
in this subsection 4~was
the subject of pending litigation
in Chemical
Waste Management et al.
v.
USEPA,
976 F.2d
2
(D.C.
Cir.
1992), decided September
25,
1902,
in the
U.S.
Court
of AppeQiG for the Diotrict of
Columbia.
The USEPA response to the mandate
in
this
litigation
may
result
in
the
repeal
or
22
modification of 40 CFR 148.1(d),
from which this
subsection is derived.
USEPA responded to the
remand
by issuing an interim final rule on May 24,
1993.
at
58
Fed.
Req.
29860, but that action did
not_directly
affect
40’
CFR
148.1.
The
Board
views
any federal court decision on the effectiveness or
enforceability
of the USEPA rule as binding on
this subsection.
BOARD NOTE:
Derived from 40 CFR 148.1
(19932.),
as
amended at 57 Fed. Reg.
808831963
(July 20, March
(Source:
Amended at 17
Ill.
Beg.
_________,
effective
__________,
1993)
SUBPART
B:
PROHIBITIONS ON INJECTION
Section 148.117
Waste Specific Prohibitions
—
Newly-Listed
Wastes
~j
The
wastes
specified
in 35 Ill.
Adm.
Code 72l.Subpart D
by the following EPA Hazardous Waste numbers are
prohibited
from underground inlection:
F037
F038
K107
1108
Kl09
KilO
Kill
1112
Kil7
K1l8
1123
1124
1125
Kl26
1131
1136
U328
U353
U359
~j
Effective June
30,
1995,
the wastes specified
in
35
Ill.
Adm.
Code 72l.Subpart D by the following EPA
Hazardous Waste numbers are prohibited from underground
injection:
1117
23
K118
Kl3l
1132
~j
The requirements of subsections
(a) and
(b)
above do
not apply:
j)..
If the wastes meet or are treated to meet the
applicable standards specified in 35 Iii. Adm.
Code 728.Subpart
D: or
2.1
If an adiusted standard has been granted in
response to
a petition under Subpart C of this
Part;
or
fl
During the period of extension of the applicable
effective date,
if an extension is aranted under
Section 738.104.
BOARD NOTE:
Derived from 40 CFR 148.17,
as added
at 57 Fed.
Req.
37263
(Aug.
18,
1992).
(Source:
Added at 17
Iii. Reg.
_________,
effective
___________
1993)
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify t)iat the above opini
and order was
adopted on the
~
day of
-
1993, by a vote of
—
C
.
72
~
)~.
/~J
Dorothy M. Gu)~i, Clerk
Illinois Poll4tion Control Board