01-030ro050301

ILLINOIS POLLUTION CONTROL BOARD

May 3, 2001

IN THE MATTER OF:

)

UIC CORRECTIONS, USEPA

)

R01-30

AMENDMENTS (July 1, 1999, through

)

(Identical-in-Substance Land)

June 30, 2000)

)

Proposed Rule. Proposal for Public Comment.

OPINION AND ORDER OF THE BOARD (by C.A. Manning):

SUMMARY OF TODAY’S ACTION

This opinion and order addresses certain rules recently adopted in the consolidated

underground injection control (UIC) update dockets UIC Update, USEPA Amendments (July 1,

1999, through December 31, 1999) and UIC Update, USEPA Amendments (January 1, 2000,

through June 30, 2000) (December 7, 2000), R00-11/R01-1 (consolidated). As is explained in

detail below, the Board today opens this docket to consider concerns raised by the United States

Environmental Protection Agency (USEPA) since the rules’ adoption. Today’s opinion

discusses all of the USEPA concerns in detail. In some instances, the Board proposes

amendments to the rules. In others, we explain why we believe amendments are unnecessary

or are contrary to state law.

The Board will cause the proposed amendments to be published in the Illinois Register

and will hold the docket open to receive public comments for 45 days after the date of

publication. After that time, the Board will immediately consider adoption of the amendments,

making any changes necessary in response to the public comments. We particularly solicit the

comments of the Office of the Attorney General, USEPA, and the Illinois Environmental

Protection Agency (Agency) on this proposal during the comment period.

PROCEDURAL HISTORY

The R00-11/R01-1 Proceeding

The Board adopted amendments to the Illinois UIC regulations in R00-11/R01-1 on

December 7, 2000. Most of the amendments to the Illinois UIC regulations involved in that

docket related to the first installment of significant new federal requirements applicable to Class

V injection wells. The two types of Class V injection wells affected by the new regulations are

large-capacity cesspools and automobile waste disposal wells.

Under Sections 7.2 and 13(c) of the Environmental Protection Act (Act) (415 ILCS

5/7.2 and 13(c) (1998)), the Board proposes amendments to the Illinois regulations that are

“identical in substance” to UIC regulations that USEPA adopted to implement Section 1421 of

the federal Safe Drinking Water Act (SDWA) (42 U.S.C. § 300h (1998)). Sections 7.2 and

13(c) of the Act provide for quick adoption of regulations that are identical in substance to

federal regulations that USEPA adopts to implement Section 1421 of SDWA. Section 13(c)

also provides that Title VII of the Act and Section 5 of the Administrative Procedure Act

(APA) (5 ILCS 100/5-35 and 5-40 (1998)) do not apply to the Board’s adoption of identical-in-

substance regulations. The federal UIC regulations are found at 40 C.F.R. 144 through 148.

The Board adopted a proposal for public comment in UIC Update, USEPA

Amendments (July 1, 1999, through December 31, 1999) and UIC Update, USEPA

Amendments (January 1, 2000, through June 30, 2000), (September 7, 2000) R00-11/R01-1

(consolidated). Notices of Proposed Amendments were duly published in the October 6, 2000

issue of the Illinois Register, at 24 Ill. Reg. 14528 (Part 738), 14535 (Part 702), 14550 (Part

704), and 14578 (Part 730). The Board received public comments on this proposal for a period

of 45 days following its publication in the Illinois Register. The public comment period ended

on November 20, 2000.

The Board received only one comment during the 45-day public comment period

following Illinois Register publication.

This comment, filed by the Agency, did not comment

on the particulars of the rule proposal. Instead, the Agency expressed concern at the increased

financial burden that implementing the rule amendments would cause. The Agency noted that it

had advised USEPA that additional federal funding would be needed. USEPA did not

comment on the proposed amendments during the public comment period. The Board adopted

the Class V injection well regulations in December 2001 without receiving substantive

comments from any source.

The USEPA Post-Adoption Letter

On March 16, 2001, the Board received a copy of a March 12, 2001 letter from David

A. Ullrich, Acting Regional Administrator, USEPA Region V, addressed to James Ryan,

Attorney General of the State of Illinois. In that letter, USEPA commended the State on being

the first in USEPA Region V to adopt the Class V injection well rules. Additionally, USEPA

submitted substantive comments on the text of the adopted Class V well rules. USEPA raised

two areas of major concern over the rules, four areas of minor concern, and four general

observations on the rules. USEPA requested that the Attorney General prepare and submit to

USEPA within 45 days a supplemental statement on the basis for the rule in the specified areas

of concern.

In addition to the public comments received, the Board received from the Joint Committee on

Administrative Rules (JCAR) on October 12, 2000, a series of four documents (one for each

Part involved in this proceeding) entitled “Line Numbered Version.” JCAR also submitted four

additional documents, one for each Part, entitled “Suggested Revisions.” The Board responded

to all JCAR suggestions, as detailed in the opinion and order of December 7, 2000.

DISCUSSION

The Board has opened this docket to address the federally-raised concerns over the

Illinois Class V injection well requirements adopted in docket R00-11/R01-1. The Board

outlines and discusses the areas of concern raised by USEPA and proposes amendments to the

Class V injection rules for public comment in response to some, but not all, of USEPA’s

concerns.

The following discussion is topically arranged by area of concern raised by USEPA. It

is separated into three major headings: Major Areas of USEPA Concern, Minor Areas of

USEPA Concern, and USEPA General Observations. Under each major heading are topical

subheadings for each segment of the discussion corresponding with each of the concerns raised

by USEPA. Those discussion segments consider each of the federal concerns and discuss any

amendments the Board is proposing based on those concerns. The Board expressly invites

public comments on several aspects of the discussions and proposed amendments.

Major Areas of USEPA Concern

Public Availability of Local Source Water Assessments—Section 704.286

USEPA commented on the final step for considering a source water assessment

complete. By way of background, the “State drinking water source assessment and protection

program” is a new approach to protecting drinking water sources, specified in section 1453 of

the 1996 Amendments to the federal SDWA (42 USC 300j-13). Under the federal

requirements, states must prepare and submit for USEPA approval a program that sets out how

each state will conduct local assessments, including the following: delineating the boundaries of

areas providing source waters for public water systems; identifying significant potential sources

of contaminants in such areas; and determining the susceptibility of public water systems in the

delineated areas to the inventoried sources of contamination. The Board believes that the

Illinois Groundwater Protection Act (415 ILCS 55) and the regulations at 35 Ill. Adm. Code

620 adopted pursuant to that law and Sections 14.1 through 14.6 and 17.1 through 17.4 of the

Environmental Protection Act (415 ILCS 14.1-14.6 and 17.1-17.4) and the regulations at 35 Ill.

Adm. Code 615 through 617 adopted under those provisions are major segments of the

required Illinois program.

As adopted in the Section 704.286 definition of “complete local source water assessment

for groundwater protection areas,” that final step is listed as the development of a plan for

making the assessments available to the public. USEPA stated as follows:

This comment refers to the discussion of the four requirements that are needed to

consider a source water assessment complete. This section correlates to the

compliance dates listed at Section 704.287 which is contingent upon when a

source water assessment is considered complete. In the Federal rule, the final

step in considering an assessment complete is for the completed assessment to be

made available to the public. The purpose of the public notice is to provide the

regulated audience and the regulatory agencies with a set compliance date, which

is a year after the assessment information is made known to the public, not to

exceed the established deadlines. In the Illinois EPA rule amendment, the last of

the four steps in considering an assessment complete is the development of a plan

for making the completed assessments available to the public. For the purposes

of implementing the Class V rule requirements, this language is inconsistent with

the intent of the Federal rule. To be consistent, we suggest the following

language for the final step: “The state makes the information available to the

public. The mechanism for doing so will be in accordance with the state’s own

plan for making the completed assessments available to the public but under any

circumstance must not exceed January 1, 2004 unless the state receives an

extension to complete the assessments, in which case public notice must not

exceed January 1, 2005.

Based on the USEPA expression of concern, the Board proposes amendments to the text

of Section 704.286(b). As the rule is lengthy, the Board does not set out the regulatory

language here, but instead refers the reader to the regulatory text in the order. The Board

proposes revising the language of the fourth requirement of the definition of “complete local

source water assessment for groundwater protection areas” in Section 611.286 to read, “the

Agency must make the completed assessments available to the public,” with an added footnote

that references the Illinois source water assessment program. It is the Agency that performs the

assessments under its “Illinois Source Water Assessment and Protection Program.” The Board

further proposes adding a Board note that refers to the Illinois assessment program by its name.

The Board invites public comment on the proposed amendments to the Section 704.286

definition of “complete local source water assessment for groundwater protection areas.”

Specifically, the Board requests comment on the following: 1) the shift from the language

based directly on corresponding federal 40 C.F.R. 144.86, and 2) the addition of the Board

note explaining that the Illinois Source Water Assessment and Protection Program is the State

program intended to fulfill the federal requirements of Section 1453 of SDWA.

Agency Determinations to Grant an Extended Compliance Deadline—Sections 704.287 and

704.288

USEPA commented that the shift in usage from “may” to “must” in certain segments of

the Illinois regulations makes those provisions less stringent than their federal counterparts.

Before describing the comment in detail, the Board will set out the rules involved.

At 40 C.F.R. 144.87(b)(2) and (e) and 144.88(b)(1)(i), (b)(1)(ii), and (b)(1)(v), the

federal regulations allow the State the discretion to extend the deadline for compliance by up to

one year if it determines that the most efficient option for compliance is connection to a sanitary

sewer or the installation of a new treatment technology. The corresponding text of 35 Ill. Adm.

Code 704.287(b)(2) and (e) and 704.288(b)(1)(A), (b)(1)(B), and (b)(1)(E) as adopted in docket

R00-11/R01-1 essentially requires the Agency to grant the extension of the compliance deadline

once it has made the determination that the connection to the sewer or the installation of the new

technology is the most efficient option.

For example, 35 Ill. Adm. Code 704.287(b)(2)

provides as follows:

The Agency must extend the compliance deadline for specific motor vehicle

waste disposal wells for up to one year if it determines that the most efficient

compliance option for the well is connection to a sanitary sewer or installation of

new treatment technology.

BOARD NOTE: Any Agency determination of the most efficient compliance

option is subject to Board review pursuant to Section 40 of the Act [415 ILCS

5/40].

Corresponding 40 C.F.R. 144.87(b)(2), from which the Board derived the foregoing, states as

follows:

The UIC Program Director may extend the compliance deadline for specific

motor vehicle waste disposal wells for up to one year if the most efficient

compliance option for the well is connection to a sanitary sewer or installation of

new treatment technology.

Comparisons between 35 Ill. Adm. Code 704.287(e) and 704.288(b)(1)(A) and (b)(1)(E) and

corresponding 40 C.F.R. 144.87(e) and 144.88(b)(1)(i) and (b)(1)(v) indicate similar shifts in

the language.

USEPA stated in its letter as follows:

This comment deals with the state’s ability to extend compliance deadlines for an

owner/operator if the State determines that the most efficient compliance option

for the well is connection to a sanitary sewer or installation of a new treatment

technology. The intent of the Federal rule was to give a regulatory agency the

option to grant such an extension under very strict guidelines. Even with this

very strict and specific provision, an extension is not the inherent right of any

owner/operator or any regulatory agency. It is imperative that the state retain

the right to grant less than a one year extension where warranted. For example,

if a Class V well owner/operator has the ability to connect to sewer or install

new treatment technology in less than a year and the well poses a significant

enough threat to groundwater, then the state must have the authority to require

less time accordingly in order to provide maximum protection or underground

sources of drinking water under the law. In the State rule amendment, the

Board substituted “may” for “shall” which compromises the state’s ability to

USEPA cited Sections 704.287(b)(2) and 704.288(b)(1)(A), (b)(1)(B), and (b)(1)(E). The

Board noted a parallel segment of text in Section 704.287(e) that allowed the grant of an

extension of the compliance deadline for up to one year, so we added that provision to this

consideration.

protect underground sources of drinking water to the fullest extent of the law.

This makes the state rule less stringent than the Federal rule. We recommend

that the state use “may” instead of “shall” where referenced for these

circumstances. This is consistent with the intent of the Federal rule and is also

consistent wit the state’s own definition of “may” with is used when choice of a

provision is optional. (Emphasis in the original.)

In response to the USEPA expression of concern, we note that the Board is limited in its

ability to delegate decisionmaking authority to the Agency. Under the Act, the Board

establishes the State environmental standards, and the Agency implements them. (See 415

ILCS 5/4 and 5 (1998).)

Thus, the Board must establish criteria for Agency determinations made in the course of

establishing the standards. As stated by the Board in adopting the one-year deadline extension

provision on which USEPA commented:

While the Agency is given discretion to determine whether or not the most

efficient compliance option is indeed connection to a sanitary sewer or the

installation of new technology, the Board cannot vest in the Agency the

additional discretion to determine whether or not to extend the deadline for

compliance.

UIC Update, USEPA Amendments (July 1, 1999, through December 31, 1999)

and

In re

UIC Update, USEPA Amendments (January 1, 2000, through June

30, 2000) (December 7, 2000), R00-11/R01-1 (consolidated), slip op. at page 10

A federal provision that allows a discretionary determination by the State usually allows

a permissible relaxation of the generally-applicable standard in the federal rule. To incorporate

the federally-allowable flexibility into the Illinois regulations, the Board generally examines the

federal rule to find the circumstances under which USEPA allows the relaxation of the

generally-applicable rule. The Board then makes the determination that the Illinois regulations

will allow flexibility from the general rule, and it establishes the federally-permissible

The Board has previously stated when adopting rules by the identical-in-substance

procedure as follows:

Under Illinois law, as held by the Illinois Supreme Court in Granite City

Division of National Steel Co. v. PCB (Apr. 15, 1993), 155 Ill. 2d 149, 172-74,

613 N.E.2d 719, 729-30, although the Agency may establish criteria by fixed

procedures that apply to particular facilities based on site-specific factors, the

authority to adopt regulatory standards of general applicability is reserved to the

Board.

Safe Drinking Water Act Update, USEPA Amendments (January 1 through June, 30, 1995)

(October 17, 1996), R95-17, at page 4.

circumstances as the preconditions to an Agency determination to allow the flexibility. The

Board drafts the Illinois rule to allow the permissible relaxation of the generally-applicable

standard upon a certain Agency determination. Consequently, the resulting Agency

determination to allow the flexibility is in the nature of a permit determination or establishing

criteria by fixed procedures, rather than in the nature of Agency rule adoption prohibited by the

Act. The Board then further adds a note explaining that an Agency determination is subject to

review under Section 40 of the Act as an Agency permit determination.

The 40 C.F.R. 144.87(b)(2) and (e) and 144.88(b)(1)(i) and (b)(1)(v) provisions that

allow an extension of the compliance deadline for up to one year based on a determination of

the most efficient compliance option are found in corresponding 35 Ill. Adm. Code

704.287(b)(2) and (e) and 704.288(b)(1)(A) and (b)(1)(B). In translating the federal rules into

the Illinois system, the Board properly changed “UIC Program Director may extend” to “the

Agency must extend.” USEPA allows the State to grant the extension if the most efficient

compliance alternative is connection to a sanitary sewer or the installation of a new treatment

technology. The Board has made the decision whether the State of Illinois will allow the

extension, leaving the Agency the discretion to determine whether or not the most efficient

compliance alternative is connection to a sanitary sewer or the installation of a new treatment

technology. The Board has further implicitly vested the Agency the discretion to determine the

term of the extension of “up to one year.”

Thus, where USEPA has provided that this State “may extend” the deadline for

compliance, the Board has determined that the State will extend the deadline once the Agency

has made the necessary preliminary findings. The Agency may further determine the term of

the extension based on the need for the extension. This is consistent with and no less stringent

than the federal requirements.

Nevertheless, the Board proposes revising the language of the deadline compliance

extension provisions in response to the federal expression of concern. These are found in

Sections 704.287(b)(2) and (e) and 704.288(b)(1)(A) and (b)(1)(B). As the rules are lengthy,

the Board does not set out the regulatory language here, but instead refers the reader to the

regulatory text in the order. We are proposing to explicitly limit an Agency grant of an

extension of the compliance deadline to those situations where the Agency further finds that it is

necessary to implement the compliance option. This would remove the possible cause for

USEPA concern that the rule requires the Agency to grant relief beyond the extent that the time

is needed to connect to a sanitary sewer or install new technology.

Finally, one aspect of USEPA’s concern over the extension provisions relates to possible

adverse environmental effects of continued operation of the well. USEPA argued that the

Agency must have the option to deny an extension of the compliance deadline if the “well poses

significant enough threat to ground water.” The Board believes that Illinois law would not only

allow the Agency to deny an extension of the deadline under these circumstances, but it would

require that the Agency deny an extension under circumstances of significant environmental

impairment from the well. Section 39 of the Act, which is the authority under which the

Agency would grant any extension of the compliance deadline, provides that the Agency must

issue a permit “upon proof by the applicant that the facility, equipment, vehicle, vessel, or

aircraft will not cause a violation of this Act of or regulations hereunder.” 415 ILCS 5/39(a)

(1998). “Water pollution” is prohibited by Section 12(a) of the Act (415 ILCS 5/12(a) (1998))

and the definition of “water pollution” in Section 3.55 of the Act (415 ILCS 5/3.55 (1998)) and

“waters” in Section 3.56 of the Act (415 ILCS 5/3.56 (1998)) clearly includes degradation of

groundwater. Thus, it is not necessary to give the Agency the discretion to deny an extension

of the compliance deadline where a well threatens groundwater resources when the Act itself

would require that the Agency deny the extension.

The Board invites public comment on the proposed amendments to the Sections

704.287(b)(2) and (e) and 704.288(b)(1)(A), (b)(1)(B), and (b)(1)(E). Specifically, the Board

requests comment on the added language that further limits a grant on an extension to those

situations where the Agency further finds that it is necessary to implement the compliance

option. We specifically request comment also on the fact that the Board has added a similar

amendment to Section 704.288(b)(1)(B) based on its similarity to Sections 704.287(b)(2) and

704.288(b)(1)(i) and (b)(1)(v), even though USEPA did not suggest amendment of that

provision.

Minor Areas of USEPA Concern

Closure of Class IV Injection Wells—Section 704.102

The first area of minor concern to USEPA relates to Class IV injection wells, rather

than Class V injection wells. A Class IV injection well is one used to dispose of hazardous

waste or radioactive waste into a formation that contains an underground source of drinking

water within a quarter-mile of the well bore.

USEPA noted in its March 12, 2001 letter that the existing text of Section 704.102

requires the elimination of Class IV injections wells over a six-month period and that the six-

month period has long since expired. USEPA observed that any Class IV well that has come

into existence since that time is illegal and should immediately be closed. USEPA suggested

that the statement about closure of a Class IV well in Section 704.102 should be changed to

state as follows: “Section 704.124 prohibits new and existing Class IV wells that inject

hazardous waste directly into an underground source of drinking water.”

In response to USEPA comment, the Board notes that the USEPA-cited segment of

Section 704.102 was not one amended in docket R00-11. We further note that the existing

language of Section 704.102 directly tracks that of corresponding 40 C.F.R. 144.1(g). Since

USEPA had not amended this rule during the update period, the Board could not open the rule

in R00-11/R01-1.

Nonetheless, the USEPA request that the Board clarify the rule has merit. Indeed,

JCAR routinely requests that the Board substitute a date certain for such a text segment. The

deadline for closure of a Class IV well appears to have been six months after March 3, 1984,

the effective date of the Illinois UIC program, as defined in Section 702.110. This date is long

past, and the Board has omitted it from the actual prohibition against the operation of a Class IV

well, codified in Section 704.124(a). There is no reason to retain the “six months” language in

Section 704.102.

Thus, the Board proposes revising the segment of Section 704.102 pertaining to Class

IV injection wells as follows:

Existing Class IV wells that inject hazardous waste directly into an underground

source of drinking water are to be eliminated over a period of six months and

new such Class IV wells are to be prohibited (Section 704.124). Section

704.124 prohibits the construction, operation, or maintenance of a Class IV

injection well.

In addition to the revision suggested by USEPA, the Board’s review of the language of

Section 704.102 leads us to conclude that we must propose additional clarifying changes

relating to Class V injection wells. Section 704.102 discusses Class V wells as though no

existing requirements directly apply to them. Rather, this segment of the text refers to

requirements that will be adopted at a future date. This directly parallels language in

corresponding 40 C.F.R. 144.1(g) that USEPA did not alter in its December 7, 1999 Class V

injection well rule.

The federal action of December 7, 1999, which underlay the docket R00-11/R01-1

amendments, established the first wave of regulations directly applicable to specified types of

Class V wells. This means that Section 704.102 should be amended to direct attention to the

Class V well requirements of Subpart I of Part 704, instead of merely referencing nonexistent

future regulations. However, since USEPA has not completed the development of regulations

for other types of Class V injection wells, the Board must retain unchanged the segment relating

to unregulated Class V injection wells.

Thus, the Board proposes revising the segment of Section 704.102 pertaining to Class V

injection wells as follows:

Class V wells will be inventoried and assessed, and regulatory action will be

established at a later date are regulated under Subpart I of this Part. In the

meantime, if If remedial action appears necessary prior to the establishment of

regulations directly applicable to a specific type of Class V injection well, an

individual permit may be required (Subpart C of this Part) or the Agency must

require remedial action or closure by order (Section 704.122(c)).

The Board invites public comment on the proposed amendments to the Section 704.102.

Specifically, the Board requests comment on the elimination of the language that required the

closure of all Class IV wells “over a period of six months” and its replacement with a reference

to Section 704.124 as prohibiting the construction, operation, or maintenance of a Class IV

injection well. We further specifically request comments on the revisions relating to the staged

implementation of Class V injection well regulations and their regulation under Subpart I of Part

704.

Authorization of a Class V Well by Rule—Section 704.146

USEPA observed that Section 704.146(a) of the Illinois rules states that injection into a

Class V injection well is authorized by rule, rather than that the well itself is authorized by rule.

USEPA stated that this could cause confusion, since the well itself is “rule authorized” by virtue

of its existence, without regard to whether injection occurs or not.

USEPA’s point is well taken.

The Board now proposes the following amendment to

the text of Section 704.146(a):

Injection into A Class V wells well is authorized by rule, subject to the

conditions set forth in Section 704.284.

The Board invites public comment on the proposed amendments to Section 704.146(a).

Specifically, the Board requests comment on the elimination of the language authorizing

injection into a Class V injection well by rule and the incorporation in its place of the current

federal language of 40 C.F.R. 144.24(a), which authorizes the Class V injection well.

Reporting the Well Location—Section 704.283

USEPA notes that Section 704.283(a)(2)(C)(i) requires the reporting of the location of

the well by one of two listed methods “according to the conventional practice in this State.”

USEPA states that the regulation should provide or reference the conventional practice in this

State.

In response to the USEPA comment, the Board notes that the language of Section

704.283(a)(2)(C)(i) parallels that of 40 C.F.R. 144.83(a)(2)(iii)(A) from which it derives. The

language that USEPA wants the Board to change is the same as it appears in the corresponding

federal rule.

Nothwithstanding, the Board agrees that the rule would benefit from greater specificity.

Among the conventions for projecting geographic locations are the Universal Transverse

Section 704.146(a) corresponds with 40 C.F.R. 144.24(a), which provides that it is the well

itself and not injection into the well that is authorized by rule. The language of Illinois Section

704.146 that authorizes the injection by rule originally derived from a former federal provision,

40 C.F.R. 122.37(a)(4). That former federal provision set forth the permit-by-rule provision

applicable to Class V injection wells until USEPA replaced it on December 3, 1993 (at 58 Fed.

Reg. 63890, 63896) with the current provision, 40 C.F.R. 144.24(a). When the Board

incorporated the federal amendments of December 3, 1994 into the Illinois regulations, in UIC

Update, USEPA Regulations (6-1-93 through 12-31-93) (November 3, 1994), R94-5, the Board

failed to make the shift in language from authorization of injection into a Class V well to

authorization of the Class V well itself by rule.

Mercator, the Lambert Conformal Conic, the U.S. Land Survey System, and standard latitude

and longitude. We are aware that well drillers in Illinois generally use the U.S. Land Survey

System. Thus, for the purpose of obtaining public comment on which convention or

conventions the Board should require by rule, we propose to amend Section 704.283(a)(2)(C)(i)

by deleting the language allowing reporting using latitude and longitude and by requiring the

reporting of location according to the first-listed method in Section 704.283, the U.S. Land

Survey System, as follows:

The location of each well or project given by Township, Range, Section, and

Quarter-Section, or by latitude and longitude to the nearest second, according to

the conventional practice in this State U.S. Land Survey System;

The Board invites public comment on the proposed amendments to Section

704.283(a)(2)(C)(i). Specifically, the Board requests comment on our opting to require the

reporting of well location, “according to the U.S. Land Survey System.” The Board requests

comment on whether we should replace this clause with a citation or reference to another such

conventional practice or practices and, if so, what are those conventional practices.

Designation of “Other Sensitive Groundwater Areas”—Section 704.287

With regard to the “Board Note” discussions attached to Section 704.287(a) and (c),

USEPA stated as follows:

In the Board “BOARD NOTE” discussions, the Board implies that the State will

not be designating Other Sensitive Ground Water Areas (OSGWAs). If this is

the case and the State will be implementing the additional requirements

Statewide, this should be stated and the language throughout the regulations that

refers to designating OSGWAs can be dropped.

The OSGWA designation language cannot be dropped. Initially, the Board notes that

our opinion of December 7, 2000, at pages 7 and 8, clearly states that the Board has interpreted

“other sensitive groundwater area” to include a “regulated recharge area,” as such is defined in

Section 3.67 of the Act and these areas are designated pursuant to Sections 17.1 through 17.4

of the Act. The Board can see nothing in the text of the two explanatory Board notes that

would imply that the State will not designate OSGWAs. Rather, the two Board notes cite

Sections 17.1 through 17.4 of the Act under which regulated recharge areas are designated.

USEPA further observed with regard to these Board notes as follows:

The end of each note states that there is no need to include provisions for the

Rule going statewide if the State fails to delineate OSGWA because existing

Codes protect groundwater and allow for the designation of sensitive areas. The

state may need to incorporate the appropriate OSGWA language by reference.

If the State designates OSGWAs (including regulated recharge areas) by January 1,

2004, the additional requirements of Section 704.288 will not apply statewide in Illinois. On

the other hand, if the State fails to make the required designations, the additional requirements

will apply on a statewide basis. Adding the previously-omitted language from 40 C.F.R.

144.87(a) and (c) relating the effect of a State failure to timely make the federally-required

designations would remove a cause for USEPA concern. The effect of doing so, though,

would also instill a measure of uncertainty into the Illinois regulations; it would render the

applicability of major segments of the rules subject to events that have not yet occurred.

The Board disfavors adding language that would create uncertainty in the regulations.

We would prefer to limit the focus of the Illinois rules to the requirements that apply as a matter

of State law. We see no reason to complicate matters by adding the effects of a State failure as

a matter of federal law. Nevertheless, the Board is proposing to add the previously-omitted

federal language to Section 704.287(a) and (c) on the suggestion of USEPA. For the purposes

of public comment, we are proposing to amend Section 704.287(a) and (c) and their associated

Board notes as follows:

A person is subject to the requirements of Section 704.288 if the person

owns or operates an existing motor vehicle well and that person is located

in a ground water groundwater protection area or another sensitive

ground water groundwater area. If the State fails to identify these areas

within the federally-specified time frames, the additional requirements of

Section 704.288 will apply to all existing motor vehicle waste disposal

wells within this State.

BOARD NOTE: Corresponding 40 CFR 144.87(a) provides that the

“new requirements” apply statewide if the state or the USEPA Region

fails to identify sensitive groundwater areas. The Board has interpreted

“new requirements” as synonymous with “additional requirements”

elsewhere in this Subpart I. Further, the Board has not included this

statewide applicability provision because Sections 14.1 through 14.6 and

17.1 through 17.4 of the Act [415 ILCS 5/14.1-14.6 and 17.1-17.4] and

35 Ill. Adm. Code 615 through 617 designate protected groundwater

resources and allow the designation of other sensitive areas for

protection. Further, the Illinois Groundwater Protection Act [415 ILCS

55], and the regulations adopted as 35 Ill. Adm. Code 620 under that

statute, protect the quality of all groundwater resources in Illinois.

* * *

Other sensitive ground water groundwater areas. Existing motor vehicle

waste disposal well owners and operators within other sensitive ground

water groundwater areas have until January 1, 2007 to receive a permit

or close the well. If the State fails to identify these additional sensitive

groundwater areas by January 1, 2004, the additional requirements of

Section 704.288 will apply to all motor vehicle waste disposal wells in the

State effective January 1, 2007, unless they are subject to a different

compliance date pursuant to subsection (b) of this Section. If USEPA has

granted the State an extension of the time to delineate sensitive

groundwater areas, the owner or operator of an existing motor vehicle

waste disposal well within a sensitive ground water groundwater area has

until January 1, 2008 to close the well or receive a permit, unless the

owner or operator is subject to a different compliance date pursuant to

subsection (b) of this Section. If the State has been granted an extension

and fails to delineate sensitive areas by the extended date, an owner or

operator has until January 1, 2008 to close the well or receive a permit,

unless it is subject to a different compliance date pursuant to subsection

(b) of this Section.

BOARD NOTE: Corresponding 40 CFR 144.87(c) provides that the State has

until January 1, 2004 to identify sensitive groundwater areas. It also provides

that USEPA may extend that deadline for up to an additional year if the State is

making reasonable progress towards identifying such areas and the State has

applied for the extension by June 1, 2003. The Board has not included these

provisions relating to deadlines for State action because they impose requirements

on the State, rather than on regulated entities. Further, the corresponding federal

rule provides that the “new requirements” apply statewide if the State or the

USEPA Region fails to identify sensitive groundwater areas and that “the rule

requirements” apply in the event of an extension granted by USEPA and the

State fails to delineate sensitive areas. The Board has interpreted “new

requirements” and “rule requirements” as synonymous with “additional

requirements” as used elsewhere in this Subpart I. Finally, the Board has not

included this statewide applicability provision because Sections 17.1 through 17.4

of the Act [415 ILCS 5/17.1-17.4], Section 8 of the Illinois Groundwater

Protection Act [415 ILCS 55/8], and 35 Ill. Adm. Code 615 through 620 protect

groundwater resources and allow the designation of sensitive areas.

The Board invites public comment on the proposed amendments to Section

704.283(a)(2)(C)(i). Specifically, the Board requests comment on our refusal to remove the

language relating to the designation of OSGWAs. This includes our request to receive

comment as to whether we are correct in interpreting the State designation of regulated

recharge areas as satisfying the federal requirement that the State designate OSGWAs. The

Board further requests comment on the proposed addition of the federal language to Section

704.287(a) and (c) relating to a State failure to timely designate OSGWAs and our proposed

deletion from the Board notes associated with these provision relating to omission of the federal

language. This will help the Board to determine whether it should add some language that

imposes the additional requirements with greater certainty, whether we should still omit the

language, or whether we should adopt some alternative course as more acceptable.

USEPA General Observations

Overlapping Authority to Regulate Various Classes of Injection Wells—Section 704.105

Citing Section 704.105(a)(4), USEPA stated as follows:

The rule lists those types of injection activities that are covered by the UIC

regulations. It appears that the Illinois EPA has regulatory authority to regulate

the systems listed regardless of capacity. There may be some overlap with other

state or county laws.

Section 704.105 defines the scope of the Illinois UIC regulations; they define the

universe of wells to which the rules apply, including Class V injection wells. Section

704.105(a)(4) expressly includes within the scope of regulation “[a]ny septic tank, cesspool, or

other well used by a multiple dwelling, community, or regional system for the injection of

wastes” as regulated injection wells. This inclusion directly follows that of the corresponding

federal provision of 40 C.F.R. 144.1(g)(1)(iv). However, certain wells used exclusively for the

disposal of sanitary waste are specifically excluded from the UIC regulations under Section

704.105(b)(2) and (b)(3) and corresponding 144.1(g)(2)(ii) and (g)(2)(iii). These are domestic

cesspools and septic systems used by single-family residences and non-residential disposal

systems that are used exclusively for sanitary waste and which have the capacity to serve fewer

than 20 persons per day.

The Department of Public Health regulates private sewage systems under 77 Ill. Adm.

Code 905 and 906 pursuant to the Private Sewage Disposal Licensing Act (225 ILCS 225). A

“private sewage disposal system” is defined under that statute as a sewage handling or treatment

system that receives domestic sewage from fewer than 15 people per day (225 ILCS 225/3(7)

(1998)). It would appear that the Class V wells regulated are not also regulated under the

Private Sewage Disposal Licensing Act, but it is impossible to completely rule out some

concurrence in regulation; there may be some type of septic system that is subject to regulation

under the UIC regulations as a Class V well while it is also regulated under the Private Sewage

Disposal Licensing Act or some other law.

The existence of concurrent regulation of a Class V injection well by more than one

State agency under multiple laws is not inherently problematic, so long as no inconsistencies

arise. The Board’s major concern in this proceeding is that the Board fulfill its mandate under

Section 13(c) of the Act and adopt UIC regulations that are identical in substance to UIC rules

adopted by USEPA pursuant to Section 1421 of SDWA (42 U.S.C. 300h). Thus, the Board

must assure that we have incorporated the minimum federal standards applicable to Class V

injection wells into the Illinois UIC regulations.

The Board is presently unaware of other laws or agencies that would concurrently

regulate any type of Class V injection wells subject to the Class V injection rules. USEPA

highlights no specific instances of overlap of regulations or inconsistencies in application of

disparate regulations. Thus, no problem is apparent. If problems become apparent in the

future, most likely through the implementation of the federal Class V injection well regulations,

the Board can make reference to any concurrent regulations in an effort to alleviate any

problems that might arise.

The Board is proposing no amendments based on the USEPA concern over possible

concurrent regulation of Class V injection wells by the Illinois UIC regulations and some other

regulations. However, the Board requests public comment on the issue of public comment.

Specifically, the Board requests comment on the possible existence of concurrent regulation of

Class V injection wells in Illinois. We further request comment on the possible effects of any

concurrent regulation of Class V wells.

The Forms Used to Collect Well Inventory Information—Section 704.283

Section 704.283(a) mirrors federal regulations, at 40 C.F.R. 144.26, requiring the State

to collect certain inventory information on Class V injection wells in the State. A Board note

following Section 704.283(a) states that the “information is requested on national form

‘Inventory of Injection Wells,’ OMB No. 2040-0042.” This is directly derived from a note

attached to 40 C.F.R. 144.26(a).

USEPA states, however, as follows:

It is required that the state collect inventory information as specified at 40 C.F.R.

§144.26. It is not required that the state use the OMB approved form to collect

such information. The provision a stated in the rule adoption may not allow the

state the flexibility needed to develop their own forms and request other

information as may be necessary to meet state priorities.

In response, the Board observes that the note to 40 C.F.R. 144.83(a) “requests,” but

does not require, the use of OMB form 2040-0042 for reporting on a Class V well. The

Board-adopted language in Section 704.283(a) is nearly identical to that of 40 C.F.R.

144.83(a). Thus, the note to Section 704.283(a) requests the use of OMB form 2040-0042.

Section 13(c) of the Act mandates that the Board adopt UIC regulations that are identical

in substance to the federal rules. If the Board is to adopt Illinois-specific UIC rules, it must do

so under Section 13(d) of the Act, using the full notice and comment rulemaking procedure of

Sections 27 and 28. In the context of the identical-in-substance procedure used to adopt the

Class V well requirements in docket R00-11/R01-1, the Board was not free to specify or

develop the use of an alternative form for use in Illinois in the context of an identical-in-

substance proceeding.

The Board is proposing no amendments based on the USEPA concern over the

recommended use of OMB form 2040-0042 for reporting Class V injection wells. However,

the Board requests public comment on the note attached to Section 704.283(a) that requests the

use of OMB form 2040-0042 for reporting Class V injection wells.

The Forms Used to Collect Well Preclosure Information—Section 704.288

USEPA comments on the Board notes following Sections 704.288(a)(1)(B) and (b)(1)(G)

are similar to its comments on the Board note requesting reporting Class V injection well

information on OMB form 2040-0042. These notes derived from similar requests at

corresponding 40 C.F.R. 144.88(a)(1)(ii) and (a)(1)(vii).

USEPA observes as follows:

The note states that this information is requested on the Federal form entitled

“Preclosure Notification for Closure of Injection Wells”. States are not required

to use this form. The provision as stated is the rule adoption may not allow the

state to flexibility needed to develop their own forms and request other

information as may be necessary to meet state priorities.

As we stated with regard to OMB form 2040-0042 in the discussion immediately above,

the Board was not free to specify or develop the use of an alternative form in the context of an

identical-in-substance proceeding. The Board is proposing no amendments based on the

USEPA concern over the recommended use of the federal form entitled, “Preclosure

Notification for Closure of Injection Wells,” for reporting the closure of Class V injection

wells. However, the Board requests comment on the notes attached to Section 704.288(a)(1)(B)

and (b)(1)(G) that request the use of the form entitled “Preclosure Notification for Closure of

Injection Wells” for reporting closure of Class V injection wells.

Parallel References to the Agency and USEPA—Sections 704.282 And 704.284

USEPA commented that some segments of the new Class V injection well regulations

contain parallel references to the Agency and USEPA:

The state rule amendment references USEPA in several places throughout the

rule. In doing so, it appears that the state and the USEPA have joint authority to

regulate those Class V wells covered by the new rule. This may create a

logistical nightmare for the regulated audience as well as both the state and the

USEPA. The positive outcome is that such language would facilitate any

necessary Federal override actions as the USEPA is currently assessing the

current and future status of the Illinois 1422 UIC program.

In adopting the Class V injection well requirements in docket R00-11/R01-1, the Board

retained the parallel references to the Agency and USEPA because each of these provisions

USEPA gave citations to segments of three Sections in the rules that had the parallel

references: Sections 704.282(a)(2) and (d); 704.283(a)(2)(C)(i); and 704.284(b), (b)(1), and

(b)(3). The Board could not find parallel references in Section 704.283(a)(2)(C)(i), cited by

USEPA. The rest of this discussion omits consideration of that provision and restricts attention

to Sections 704.282(a)(2) and (d) and 704.284(b), (b)(1), and (b)(3).

appeared to require compliance with the State UIC regulations and any further requirements

imposed independently by USEPA. It appears from the USEPA comments that USEPA retains

no authority to impose additional requirements on Class V injection wells in this State, so long

as Illinois retains authorization from USEPA to administer the UIC program.

The Board is accordingly proposing to revise the language of the Class V injection well

requirements to remove the parallel references to USEPA and USEPA-imposed requirements

from Sections 704.282(a)(2) and (d) and 704.284(b), (b)(1), and (b)(3). This also requires

deletion of some C.F.R. references. In the interests of saving space, these simple deletions are

not set forth here, but are contained in the order segment of this opinion and order. The Board

requests public comment on this proposed removal.

Board-Proposed Update of Citations to the Current

Code of Federal Regulations

The Board is proposing one housekeeping amendment in this present docket. We

propose to update citations to the

Code of Federal Regulations (Code)

to the most recent

edition. This is a detail that the Board routinely attends to in identical-in-substance update

dockets.

The most recent edition of the

Code

is that of July 1, 2000. The Government Printing

Office recently made that edition available. Where the existing text cites an earlier edition of

the

Code

or cites an update to the

Code

published in the Federal Register, the present

amendments update the citation to the 2000 edition and delete the citations, which are included

in the more recent edition of the

Code

. The Board requests public comment on our proposed

update of the version of the

Code

referenced in the text of the segments of the UIC regulations

opened in this proceeding.

General Housekeeping Amendment

The Board will use this opportunity to make a series of minor corrections to the text.

We discovered a single error when reviewing the text of the rules for the present amendments.

This single error was repeated several times in the text. When adopting the original Class V

injection well rules in UIC Update, USEPA Amendments (July 1, 1999, through December 31,

1999) and UIC Update, USEPA Amendments (January 1, 2000, through June 30, 2000)

(December 7, 2000), R00-11/R01-1 (consolidated), the Board failed to convert 25 appearances

of “ground water” from the federal text to the single word “groundwater” in the Illinois

regulations. We correct this at this time. The correction of this oversight appears at Sections

703.284(b)(2) (twice); 703.287(a) (twice), (b), (b)(1) (four times), (b)(1)(A), and (b)(1)(B)

(three times), (c) (three times), (e) (four times), (f) (twice), and (g); and 703.288(b)(1)(A) and

(b)(1)(B).

HISTORY OF RCRA SUBTITLE C AND UIC ADOPTION

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY OR BOARD ACTION

EDITORIAL CONVENTIONS

It has previously been the practice of the Board to include an historical discussion in its

RCRA Subtitle C and UIC identical-in-substance rulemaking proposals. However, in the last

RCRA Subtitle C update docket, RCRA Subtitle C Update, USEPA Amendments (July 1,

1999, through December 31, 1999) (May 18, 2000), R00-13, the Board indicated that it would

cease this practice. Therefore, for a complete historical summary of the Board’s RCRA

Subtitle C and UIC rulemakings and programs, interested persons should refer back to the

May 18, 2000 opinion and order in R00-13.

The historical summary contains all Board actions taken to adopt and maintain these

programs since their inception and until May 18, 2000. 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 during that time frame. As necessary the Board will

continue to update the historical summary as a segment of the opinion in each RCRA Subtitle C

and UIC update docket, but those opinions will not repeat the information contained in the

opinion of May 18, 2000 in docket R00-13.

The following summarizes the history of the Illinois RCRA Subtitle C hazardous waste

and UIC programs since May 18, 2000:

History of RCRA Subtitle C and State Hazardous Waste Rules Adoption

The Board has adopted and amended the RCRA Subtitle C hazardous waste rules in the

following docket since May 18, 2000:

R00-13

RCRA Subtitle C Update, USEPA Regulations (July 1, 1999, through

December 31, 1999) (May 18, 2000), R00-13; published at 24 Ill.

Reg.9443 (July 7, 2000), effective June 20, 2000.

R01-3

RCRA Subtitle C Update, USEPA Regulations (January 1, 2000,

through June 30, 2000) (December 7, 2000), R01-3; published at 25 Ill.

Reg. 1266 (January 26, 2001), effective January 11, 2001.

R01-23

RCRA Subtitle C Update, USEPA Regulations (July 1, 2000, through

December 31, 2000), R00-13. (Consolidated with UIC update docket

R01-21.)

History of UIC Rules Adoption

The Board has adopted and amended Underground Injection Control (UIC) regulations

in the following dockets since May 18, 2000:

R00-11

UIC Update, USEPA Regulations (July 1, 1999, through December 31,

1999) (December 7, 2000), R00-11; published at 25 Ill. Reg. 18585

(December 22, 2001), effective December 7, 2001. (Consolidated with

docket R01-1.)

R01-1

UIC Update, USEPA Regulations (January 1, 2000, through June 30,

2000) (December 7, 2000), R01-1; published at 25 Ill. Reg. 18585

(December 22, 2001), effective December 7, 2001. (Consolidated with

docket R00-11.)

R01-21

UIC Update, USEPA Regulations (July 1, 2000, through December 31,

2000), R00-13. (Consolidated with RCRA Subtitle C update docket

R01-23.)

ORDER

The complete text of the proposed amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER b: PERMITS

PART 704

UIC PERMIT PROGRAM

SUBPART A: GENERAL PROVISIONS

Section

704.101

Content

704.102

Scope of the Permit or Rule Requirement

704.103

Identification of Aquifers

704.104

Exempted Aquifers

704.105

Specific Inclusions and Exclusions

704.106

Classification of Injection Wells

704.107

Definitions

SUBPART B: PROHIBITIONS

Section

704.121

Prohibition of Unauthorized Injection

704.122

Prohibition of Movement of Fluid into USDW

704.123

Identification of USDW and Exempted Aquifers

704.124

Prohibition of Class IV Wells

SUBPART C: AUTHORIZATION OF UNDERGROUND INJECTION BY

RULE

Section

704.141

Existing Class I and III Wells

704.142

Prohibitions on Injection into Wells Authorized by Rule

704.143

Expiration of Authorization

704.144

Requirements

704.145

Existing Class IV Wells

704.146

Class V Wells

704.147

Requiring a Permit

704.148

Inventory Requirements

704.149

Requiring other Information

704.150

Requirements for Class I and III Wells authorized by Rule

704.151

RCRA Interim Status for Class I Wells

SUBPART D: APPLICATION FOR PERMIT

Section

704.161

Application for Permit; Authorization by Permit

704.162

Area Permits

704.163

Emergency Permits

704.164

Signatories to Permit Applications

SUBPART E: PERMIT CONDITIONS

Section

704.181

Additional Conditions

704.182

Establishing UIC Permit Conditions

704.183

Construction Requirements

704.184

Corrective Action

704.185

Operation Requirements

704.186

Hazardous Waste Requirements

704.187

Monitoring and Reporting

704.188

Plugging and Abandonment

704.189

Financial Responsibility

704.190

Mechanical Integrity

704.191

Additional Conditions

704.192

Waiver of Requirements by Agency

704.193

Corrective Action

704.194

Maintenance and Submission of Records

SUBPART F: REQUIREMENTS FOR WELLS INJECTING HAZARDOUS

WASTE

Section

704.201

Applicability

704.202

Authorization

704.203

Requirements

SUBPART G: FINANCIAL RESPONSIBILITY FOR CLASS I

HAZARDOUS WASTE INJECTION WELLS

Section

704.210

Applicability

704.211

Definitions

704.212

Cost Estimate for Plugging and Abandonment

704.213

Financial Assurance for Plugging and Abandonment

704.214

Trust Fund

704.215

Surety Bond Guaranteeing Payment

704.216

Surety Bond Guaranteeing Performance

704.217

Letter of Credit

704.218

Plugging and Abandonment Insurance

704.219

Financial Test and Corporate Guarantee

704.220

Multiple Financial Mechanisms

704.221

Financial Mechanism for Multiple Facilities

704.222

Release of the Owner or Operator

704.230

Incapacity

704.240

Wording of the Instruments

SUBPART H: ISSUED PERMITS

Section

704.260

Transfer

704.261

Modification

704.262

Causes for Modification

704.263

Well Siting

704.264

Minor Modifications

SUBPART I: REQUIREMENTS FOR CLASS V INJECTION WELLS

Section

704.279

General

704.280

Definition of a Class V Injection Well

704.281

Examples of Class V Injection Wells

704.282

Protection of Underground Sources of Drinking Water

704.283

Notification of a Class V Injection Well

704.284

Permit Requirements

704.285

Applicability of the Additional Requirements

704.286

Definitions

704.287

Location in a Groundwater Protection Area or Another Sensitive Area

704.288

Additional Requirements

704.289

Closure of a Class V Injection Well

AUTHORITY: Implementing Sections 7.2, 13, and 22.4 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/7.2, 13, 22.4, and 27].

SOURCE: Adopted in R81-32, at 47 PCB 95, at 6 Ill. Reg. 12479, effective March 3, 1984;

amended in R82-19, at 7 Ill. Reg. 14402, effective March 3, 1984; amended in R83-39, at 55

PCB 319, at 7 Ill. Reg. 17338, effective December 19, 1983; amended in R85-23 at 10 Ill.

Reg. 13290, effective July 29, 1986; amended in R87-29 at 12 Ill. Reg. 6687, effective March

28, 1988; amended in R88-2 at 12 Ill. Reg. 13700, effective August 16, 1988; amended in

R88-17 at 13 Ill. Reg. 478, effective December 30, 1988; amended in R89-2 at 14 Ill. Reg.

3116, effective February 20, 1990; amended in R94-17 at 18 Ill. Reg. 17641, effective

November 23, 1994; amended in R94-5 at 18 Ill. Reg. 18351, effective December 20, 1994;

amended in R00-11/R01-1 at 24 Ill. Reg. 18612, effective December 7, 2000; amended in R01-

30 at 25 Ill. Reg. ________, effective ______________________.

SUBPART A: GENERAL PROVISIONS

Section 704.102

Scope of the Permit or Rule Requirement

Although five classes of wells are set forth in Section 704.106, the UIC (Underground Injection

Control) permit program described in 35 Ill. Adm. Code 702, 704, 705, and 730 regulates

underground injection for only four classes of wells (see definition of “well injection,” 35 Ill.

Adm. Code 702.110). Class II wells (Section 704.106(b)) are not subject to the requirements

found in 35 Ill. Adm. Code 702, 704, 705, and 730. The UIC permit program for Class II

wells is regulated by the Illinois Department of Natural Resources, Office of Mines and

Minerals, Oil and Gas Division, pursuant to the Illinois Oil and Gas Act [225 ILCS 725] (see

62 Ill. Adm. Code 240). All owners or operators of Class I, Class III, Class IV, or Class V

injection wells must be authorized either by permit or rule. In carrying out the mandate of the

SDWA, this Part provides that no injection must be authorized by permit or rule if it results in

movement of fluid containing any contaminant into underground sources of drinking water

(USDWs) (Section 704.122) if the presence of that contaminant may cause a violation of any

primary drinking water regulation under 40 CFR 142 or may adversely affect the health of

persons. (Section 704.122). Existing Class IV wells that inject hazardous waste directly into

an underground source of drinking water are to be eliminated over a period of six months and

new such Class IV wells are to be prohibited (Section 704.124). Section 704.124 prohibits the

construction, operation, or maintenance of a Class IV injection well. Class V wells will be

inventoried and assessed, and regulatory action will be established at a later date are regulated

under Subpart I of this Part. In the meantime, if If remedial action appears necessary prior to

the establishment of regulations directly applicable to a specific type of Class V injection well,

an individual permit may be required (Subpart C of this Part) or the Agency must require

remedial action or closure by order (Section 704.122(c)).

BOARD NOTE: Derived from 40 CFR 144.1(g) preamble (1999) (2000).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

SUBPART C: AUTHORIZATION OF UNDERGROUND INJECTION BY

RULE

Section 704.146

Class V Wells

Injection into A Class V wells well is authorized by rule, subject to the

conditions set forth in Section 704.284.

Duration of well authorization by rule. Well authorization under this Section

expires upon the effective date of a permit issued pursuant to any of Sections

704.147, 704.161, 704.162, or 704.163.

Prohibition of injection. An owner or operator of a well that is authorized by

rule pursuant to this Section is prohibited from injecting into the well:

Upon the effective date of an applicable permit denial;

Upon a failure to submit a permit application in a timely manner pursuant

to Section 704.147 or 704.161;

Upon a failure to submit inventory information in a timely manner

pursuant to Section 704.148; or

Upon a failure to comply with a request for information in a timely

manner pursuant to Section 704.149.

BOARD NOTE: Derived from 40 CFR 144.24 (1999), as amended at 64 Fed. Reg. 68566

(Dec. 7, 1999) (2000).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

SUBPART I: REQUIREMENTS FOR CLASS V INJECTION WELLS

Section 704.282

Protection of Underground Sources of Drinking Water

This Subpart I requires that an owner or operator of a Class V injection well must not allow

movement of fluid into USDWs that might cause endangerment, that the owner or operator

must comply with the UIC requirements in this Part and 35 Ill. Adm. Code 702 and 730, that

the owner or operator must comply with any other measures required by the State or USEPA

to protect USDWs, and that the owner or operator must properly close its well when the owner

or operator is through using it. The owner or operator also must submit basic information

about its well, as described in Section 704.283.

Prohibition of fluid movement.

As described in Section 704.122(a), an owner’s or operator’s injection

activity cannot allow the movement of fluid containing any contaminant

into USDWs if the presence of that contaminant may cause a violation of

the primary drinking water standards under 35 Ill. Adm. Code 611, may

cause a violation of other health-based standards, or may otherwise

adversely affect the health of persons. This prohibition applies to the

owner’s or operator’s well construction, operation, maintenance,

conversion, plugging, closure, or any other injection activity.

If the Agency or USEPA learns that an owner’s or operator’s injection

activity may endanger USDWs, the Agency or USEPA may require the

owner or operator to close its well, require the owner or operator to get

a permit, or require other actions listed in Section 704.122(c), (d), or (e).

Closure requirements. An owner or operator must close the well in a manner

that complies with the above prohibition of fluid movement. Also, the owner or

operator must dispose of or otherwise manage any soil, gravel, sludge, liquids,

or other materials removed from or adjacent to its well in accordance with all

applicable federal, State, and local regulations and requirements.

Other requirements in this Part and 35 Ill. Adm. Code 702 and 730. Beyond

this Subpart, the owner and operator are subject to other UIC program

requirements in this Part and 35 Ill. Adm. Code 702 and 730. While most of the

relevant requirements are repeated or referenced in this Subpart for convenience,

the owner or operator needs to read all of this Part and 35 Ill. Adm. Code 702

and 730 to understand the entire UIC program.

Other State or USEPA requirements. This Part and 35 Ill. Adm. Code 702 and

730 define minimum federally-derived UIC requirements. The Agency and

USEPA Region V have has the flexibility to establish additional or more

stringent requirements based on the authorities in this Part and 35 Ill. Adm. Code

702 and 730 and 40 CFR 144 through 147, if such additional requirements are

determined to be necessary to protect USDWs. The owner and operator must

comply with any such additional requirements. The owner or operator should

contact the Agency or USEPA Region V to learn more.

BOARD NOTE: Derived from 40 CFR 144.82, as added at 64 Fed. Reg. 68567 (December

7, 1999) (2000).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

Section 704.283

Notification of a Class V Injection Well

The owner or operator of a Class V injection well needs to provide basic “inventory

information” about its well to the Agency, if the owner or operator has not done so already.

The owner or operator also needs to provide any additional information that the Agency

requests in accordance with the provisions of the UIC regulations.

Inventory requirements. Unless the owner or operator knows it has already

satisfied the inventory requirements in Section 704.128 that were in effect prior

to the issuance of this Subpart I, the owner or operator must give the Agency

certain information about itself and its injection operation.

BOARD NOTE: This information is requested on national form “Inventory of

Injection Wells,” OMB No. 2040-0042.

The owner or operator of a new or existing Class V injection well must

contact the Agency to determine what information it must submit and by

when it must submit that information.

The following is the information that the owner or operator must submit:

No matter what type of Class V well is owned or operated, the

owner or operator must submit at least the following information

for each Class V well: facility name and location; name and

address of a legal contact person for the facility; the ownership of

the facility; the nature and type of the injection well or wells; and

the operating status of the injection well or wells.

Illinois is designated a “Primacy State” by USEPA.

Corresponding 40 CFR 144.83(a)(2)(ii) relates exclusively to

“Direct Implementation” states, so the Board has omitted it. This

statement maintains structural consistency with the federal

regulations.

The owner or operator must provide a list of all wells it owns or

operates, along with the following information for each well. (A

single description of wells at a single facility with substantially the

same characteristics is acceptable.)

The location of each well or project given by Township,

Range, Section, and Quarter-Section, or by latitude and

longitude to the nearest second, according to the

conventional practice in this State U.S. Land Survey

System;

ii)

The date of completion of each well;

iii)

The identification and depth of the underground

formation(s) into which each well is injecting;

iv)

The total depth of each well;

A construction narrative and schematic (both plan view

and cross-sectional drawings);

vi)

The nature of the injected fluids;

vii)

The average and maximum injection pressure at the

wellhead;

viii) The average and maximum injection rate; and

ix)

The date of the last inspection.

The owner and operator is responsible for knowing about, understanding,

and complying with these inventory requirements.

Illinois is designated a “Primacy State” by USEPA. Corresponding 40 CFR

144.83(b) relates exclusively to “Direct Implementation” states, so the Board has

omitted it. This statement maintains structural consistency with the federal

regulations.

BOARD NOTE: Derived from 40 CFR 144.83, as added at 64 Fed. Reg. 68567 (December

7, 1999).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

Section 704.284

Permit Requirements

No permit is required for a Class V injection well, unless the owner or operator falls within an

exception described in subsection (b) of this Section.

General authorization by rule. With certain exceptions listed in subsection (b) of

this Section, an owner’s or operator’s Class V injection activity is “authorized by

rule,” meaning that the owner and operator has to comply with all the

requirements of this Subpart and the rest of this Part and 35 Ill. Adm. Code 702

and 730, but the owner or operator does not need to get an individual permit.

Well authorization expires once the owner or operator has properly closed its

well, as described in Section 704.282(b).

Circumstances in which permits or other actions are required. If an owner or

operator fits into one of the categories listed below, its Class V well is no longer

authorized by rule. This means that the owner or operator has to either get a

permit or close its injection well. The owner or operator can find out whether

its well falls into one of these categories by contacting the Agency or USEPA

Region V. Subparts D and H of this Part tell an owner or operator how to

apply for a permit and describe other aspects of the permitting process. Subpart

C of 35 Ill. Adm. Code 702 and Subpart E of this Part outline some of the

requirements that apply to the owner or operator if it gets a permit. An owner

or operator must either obtain a permit or close its injection well if any of the

following is true:

The owner or operator fails to comply with the prohibition against fluid

movement in Section 704.122(a) and described in Section 704.282(a) (in

which case, the owner or operator must get a permit, close its well, or

comply with other conditions determined by the Agency or USEPA

Region V);

The Class V injection well is a large-capacity cesspool (in which case, the

owner or operator must close its well as specified in the additional

requirements set forth in Section 704.288) or the Class V injection well is

a motor vehicle waste disposal well in a ground water groundwater

protection area or a sensitive ground water groundwater area (in which

case, the owner or operator must either close its well or get a permit as

specified in the additional requirements set forth in Section 704.288).

New motor vehicle waste disposal wells and new cesspools are

prohibited;

BOARD NOTE: A new motor vehicle waste disposal well or a new

cesspool is one for which construction had not commenced prior to April

5, 2000. See 40 CFR 144.84(a)(2), as added at 40 CFR 68568

(December 7, 1999) (2000).

The owner or operator is specifically required by the Agency or USEPA

Region V to get a permit (in which case, the authorization by rule expires

on the effective date of the permit issued, or the owner or operator is

prohibited from injecting into its well upon the occurrence of either of the

following:

The failure of the owner and operator to submit a permit

application in a timely manner, as specified in a notice from the

Agency; or

The effective date of a permit denial);

The owner or operator has failed to submit inventory information to the

Agency, as described in Section 704.283(a) (in which case, the owner

and operator is prohibited from injecting into the well until it complies

with the inventory requirements); or

Illinois is designated a “Primacy State” by USEPA. Corresponding 40

CFR 144.84(b)(5) relates exclusively to “Direct Implementation” states,

so the Board has omitted it. This statement maintains structural

consistency with the federal regulations.

BOARD NOTE: Derived from 40 CFR 144.84, as added at 64 Fed. Reg. 68568 (December

7, 1999) (2000).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

Section 704.286

Definitions

“State drinking water source assessment and protection program” is a new

approach to protecting drinking water sources, specified in section 1453 of the

1996 Amendments to the Safe Drinking Water Act (42 USC 300j-13).

BOARD NOTE: Under the federal requirements, states must prepare and

submit for USEPA approval a program that sets out how each state will conduct

local assessments, including the following: delineating the boundaries of areas

providing source waters for public water systems; identifying significant potential

sources of contaminants in such areas; and determining the susceptibility of

public water systems in the delineated areas to the inventoried sources of

contamination. The Illinois Groundwater Protection Act [415 ILCS 55] and the

regulations at 35 Ill. Adm. Code 620 adopted pursuant to that law and Sections

14.1 through 14.6 and 17.1 through 17.4 of the Environmental Protection Act

[415 ILCS 14.1-14.6 and 17.1-17.4] and the regulations at 35 Ill. Adm. Code

615 through 617 adopted under those provisions are major segments of the

required Illinois program.

“Complete local source water assessment for groundwater protection areas.”

When USEPA has approved a state’s drinking water source assessment and

protection program, the state will begin to conduct local assessments for each

public water system in that state. For the purposes of this Subpart, local

assessments for community water systems and non-transient non-community

systems are complete when the four following requirements are met:

The State must delineate the boundaries of the assessment area for

community and non-transient non-community water systems, as such are

defined in 35 Ill. Adm. Code 611.101;

The State must identify significant potential sources of contamination in

these delineated areas;

The State must determine the susceptibility of community and non-

transient non-community water systems in the delineated area to such

contaminants; and

The State will develop its own plan for making the completed assessments

available to the public.

The Agency must make the completed assessments available to the public.

BOARD NOTE: The Agency administers the “Illinois Source Water

Assessment and Protection Program,” which is intended to comply with

the federal source water assessment requirements of SDWA Section 1453

(42 USC 300j-13).

“Groundwater protection area” is a geographic area near or surrounding a

community or non-transient non-community water system, as defined in 35 Ill.

Adm. Code 611.101, that uses groundwater as a source of drinking water. For

the purposes of this Subpart I, the Board considers a “setback zone,” as defined

in Section 3.61 of the Act [415 ILCS 5/3.61] and regulated pursuant to Sections

14.1 through 14.6 of the Act [415 ILCS 5/14.1-14.6], to be a “groundwater

protection area,” as intended by corresponding 40 CFR 144.86(c). (See 35 Ill.

Adm. Code 615 and 616.) These areas receive priority for the protection of

drinking water supplies and federal law requires the State to delineate and assess

these areas under section 1453 of the federal Safe Drinking Water Act, 42 USC

300j-13. The additional requirements in Section 704.288 apply to an owner or

operator if its Class V motor vehicle waste disposal well is in a groundwater

protection area for either a community water system or a non-transient non-

community water system.

BOARD NOTE: USEPA stated in corresponding 40 CFR 144.86(c) that in

many states these areas will be the same as wellhead protection areas delineated

as described in section 1428 of the federal SDWA, 42 USC 300h-7.

“Community water system”, as defined in 35 Ill. Adm. Code 611.101, is a

public water system that serves at least 15 service connections used by year-

round residents or which regularly serves at least 25 year-round residents.

“Non-transient non-community water system”, as defined in 35 Ill. Adm. Code

611.101, is a water system that is not a community water system and which

regularly serves at least 25 of the same people over six months a year. These

may include systems that provide water to schools, day care centers, government

or military installations, manufacturers, hospitals or nursing homes, office

buildings, and other facilities.

“Delineation”. Once the State’s drinking water source assessment and protection

program is approved by USEPA, the State will begin delineating its local

assessment areas. “Delineation” is the first step in the assessment process in

which the boundaries of groundwater protection areas are identified.

“Other sensitive groundwater areas”. The State may also identify other areas in

the State in addition to groundwater protection areas that are critical to protecting

underground sources of drinking water from contamination. For the purposes of

this Subpart I, the Board considers a “regulated recharge area,” as defined in

Section 3.67 of the Act [415 ILCS 5/3.67] and regulated pursuant to Sections

17.1 through 17.4 of the Act [415 ILCS 5/17.1-17.4], to be an “other sensitive

groundwater area,” as intended by corresponding 40 CFR 144.86(g). (See 35

Ill. Adm. Code 615 through 617.) These other sensitive groundwater areas may

include areas such as areas overlying sole-source aquifers; highly productive

aquifers supplying private wells; continuous and highly productive aquifers at

points distant from public water supply wells; areas where water supply aquifers

are recharged; karst aquifers that discharge to surface reservoirs serving as

public water supplies; vulnerable or sensitive hydrogeologic settings, such as

glacial outwash deposits, eolian sands, and fractured volcanic rock; and areas of

special concern selected based on a combination of factors, such as

hydrogeologic sensitivity, depth to groundwater, significance as a drinking water

source, and prevailing land-use practices.

BOARD NOTE: Derived from 40 CFR 144.86, as added at 64 Fed. Reg. 68569 (December

7, 1999) (2000).

(Source: Amended at 25 Ill. Reg. ________, effective ______________________)

Section 704.287

Location in a Groundwater Protection Area or Another Sensitive Area

A person is subject to the requirements of Section 704.288 if the person owns or

operates an existing motor vehicle well and that person is located in a ground

water groundwater protection area or another sensitive ground water

groundwater area. If the State fails to identify these areas within the federally-

specified time frames, the additional requirements of Section 704.288 will apply

to all existing motor vehicle waste disposal wells within this State.

BOARD NOTE: Corresponding 40 CFR 144.87(a) provides that the “new

requirements” apply statewide if the state or the USEPA Region fails to identify

sensitive groundwater areas. The Board has interpreted “new requirements” as

synonymous with “additional requirements” elsewhere in this Subpart I.

Further, the Board has not included this statewide applicability provision because

Sections 14.1 through 14.6 and 17.1 through 17.4 of the Act [415 ILCS 5/14.1-

14.6 and 17.1-17.4] and 35 Ill. Adm. Code 615 through 617 designate protected

groundwater resources and allow the designation of other sensitive areas for

protection. Further, the Illinois Groundwater Protection Act [415 ILCS 55], and

the regulations adopted as 35 Ill. Adm. Code 620 under that statute, protect the

quality of all groundwater resources in Illinois.

Ground water Groundwater protection areas. Many segments of corresponding

40 CFR 144.87(b) set forth requirements applicable to the State only. Other

requirements apply to the regulated community contingent on the regulatory

status of the Illinois groundwater protection program. The Board codifies the

requirements applicable to the State in this subsection (b) for the purpose of

informing the regulated public and clarifying the requirements on the regulated

community.

For the purpose of this Subpart, USEPA requires States to complete all

local source water assessments for ground water groundwater protection

areas by January 1, 2004. Once a local assessment for a ground water

groundwater protection area is complete every existing motor vehicle

waste disposal well owner in that ground water groundwater protection

area has one year to close the well or receive a permit. If the State fails

to complete all local assessments for ground water groundwater

protection areas by January 1, 2004, the following may occur:

The new requirements in this Subpart I will apply to all existing

motor vehicle waste disposal wells in the State and the owner and

operator of a motor vehicle waste disposal well located outside of

the areas of the completed area assessments for ground water

groundwater protection areas must close their well or receive a

permit by January 1, 2005.

USEPA may grant a state an extension for up to one year from

the January 1, 2004 deadline if the state is making reasonable

progress toward completing the source water assessments for

ground water groundwater protection areas. States must apply for

the extension by June 1, 2003. If a state fails to complete the

assessments for the remaining ground water groundwater

protection areas by the extended date, the rule requirements will

apply to all motor vehicle waste disposal wells in the state, and

owners and operators of motor vehicle waste disposal wells

located outside of ground water groundwater protection areas with

completed assessments must close their well or receive a permit by

January 1, 2006.

The Agency must extend the compliance deadline for specific motor

vehicle waste disposal wells for up to one year if it determines that the

most efficient compliance option for the well is connection to a sanitary

sewer or installation of new treatment technology and the extension is

necessary to implement the compliance option.

BOARD NOTE: Any Agency determination of the most efficient

compliance option is subject to Board review pursuant to Section 40 of

the Act [415 ILCS 5/40].

Other sensitive ground water groundwater areas. Existing motor vehicle waste

disposal well owners and operators within other sensitive ground water

groundwater areas have until January 1, 2007 to receive a permit or close the

well. If the State fails to identify these additional sensitive groundwater areas by

January 1, 2004, the additional requirements of Section 704.288 will apply to all

motor vehicle waste disposal wells in the State effective January 1, 2007, unless

they are subject to a different compliance date pursuant to subsection (b) of this

Section. If USEPA has granted the State an extension of the time to delineate

sensitive groundwater areas, the owner or operator of an existing motor vehicle

waste disposal well within a sensitive ground water groundwater area has until

January 1, 2008 to close the well or receive a permit, unless the owner or

operator is subject to a different compliance date pursuant to subsection (b) of

this Section. If the State has been granted an extension and fails to delineate

sensitive areas by the extended date, an owner or operator has until January 1,

2008 to close the well or receive a permit, unless it is subject to a different

compliance date pursuant to subsection (b) of this Section.