ILLINOIS POLLUTION CONTROL BOARD

November

3,

1994

IN THE HATTER OF:

)

R94—5

UIC UPDATE, USEPA REGULATIONS

)

(Identical-in—Substance Rules)

(6—1—93 THROUGH 12—31—93)

)

Adopted Rule.

Final Order.

OPINION OF THE BOARD

(by RC.

Flemal)’:

Pursuant to Sections 13(c)

and 22.4(a)

of the Environmental

Protection Act (Act), the Board amends the Underground Injection

Control

(UIC)

regulations.

Both Sections 13(c)

and 22.4(a) provide for quick adoption

of regulations that are “identical in substance” to federal

regulations and that Title VII of the Act and Section 5 of the

Administrative Procedure Act

(APA)

shall not apply.

Because this

rulemaking is not subject to Section 5 of the APA,

it

is not

subject to first notice or to second notice review by the Joint

Committee on Administrative Rules

(JCAR).

The federal UIC

regulations are found at 40 CFR 144,

146,

and 148.

This

rulemaking updates UIC rules to correspond with federal

amendments made in the period from July 1 through December 31,

1993.

The USEPA action during this period was as follows:

Federal Action

Summary

58 Fed.

Reg. 63890

Clarification of current requirements

(Dec.

3,

1993)

for wells authorized by rule, the rules

for financial responsibility obligations

of parties to a well transfer, the

criteria for demonstrating mechanical

integrity through annulus pressure

monitoring records, and the authority of

the UIC program director to require

information on any well.

PUBLIC COMMENTS

The Board adopted a proposal for public comment including

the present amendments on August 11,

1994.

Notices of Proposed

kxnendments appeared in the Illinois Register on September 9,

1994, at 18 Ill. Reg.

13572

(Part 700),

13613

(Part 702),

13646

(Part 703),

13675

(Part 704).

13594

(Part 705),

and 13712

(Part

‘

The Board appreciates the effort of attorney Michael J.

McCambridge in assembling this opinion and the accompanying

order.

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2

730).

We received public comment on this proposal for45 days

following the Illinois Register publication.

During the public comment period, the Board received two

public comments:

PC

1 Office of the Secretary of State,

Index Department,

Administrative Code Division (October 25,

1994, by

Connie Bradway)

PC

2 Illinois EPA (Agency), Division of Legal Counsel

(October 27,

1994, by Susan Schroeder, Associate

Counsel)

The Secretary of State and the Agency indicated a small number of

corrections to the format of the rules.

Those corrections are

indicated in the discussion on revisions from the proposed

version of the amendments based on public comments.

In addition to the public comments, the Board received a

series of documents, entitled “Identical First Notice Line

Numbered Version”, relating to Parts 700,

703,

704, and 705 from

staff of the Joint Committee on Administrative Rules

(JCAR) that

indicated a number of corrections to the text and format of the

amendments.

JCAR staff also submitted a series of verbal

communications to Board staff relating to corrections to all

Parts involved in this proceeding.

The JCAR-prompted revisions

are indicated in the discussion of public comment—based

revisions.

The Board will delay filing any adopted rules with the

Secretary of State for 30 days after adoption, particularly to

allow U.S. EPA review.

The complete text of the adopted

amendments appears in a separate order adopted this day.

HISTORY OF RCRA, UST and UIC ADOPTION

AGENCY OR BOARD ACTION?

EDITORIAL CONVENTIONS

The Board appended three routine discussions at the end of

this opinion.

The first is a summary history of the Illinois

RCRA and UIC programs.

It lists all actions taken to adopt and

maintain these programs since their inceptions.

It includes a

listing of all site-specific rulemaking and adjusted standards

proceedings filed that relate to these programs.

It also lists

all USEPA program authorizations issued to date.

The second is a

discussion of how the Board codifies requirements that call for

state determinations, such as for exemptions,

exceptions,

etc.

The third discussion relates to our use of language in the

codification of identical—in—substance rules.

We intend these as

reference aids for interested persons in the regulated community.

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3

DISCUSSION

In a single action dated December 3,

1993,

U.S. EPA

undertook four basic sets of clarifying amendments.

Each basic

set has a distinct impact on the Illinois UIC regulations.

In

addition to the amendments directly derived from the federal

amendments involved, the Board has undertaken a number of

“housekeeping” amendments to correct certain aspects of the base

regulatory text.

This discussion focuses on each by subject

matter and the Illinois Section impacted.

A separate section

follows the subject matter discussions that highlights the

revisions from the proposed version of the instant amendments.

Financial Responsibility——Sections 702.110,

704.142,

704.150

&

704.152

U.S. EPA amended the financial responsibility requirements

at 58 Fed. Reg.

63895,

on December 3,

1993 to clarify the

financial responsibility requirements for the parties to a well

transfer.

It added definitions of “transferee” and “transferor”

to 40 CFR 144.3

(corresponding with 35 Ill.

Adin. Code 702. 110).

It amended 40 CFR 144.28(d)

(corresponding with 35 Ill. Adm. Code

704.150(d)), by amending paragraphs

(d) (1) and

(d) (2);

renumbering

(f) (2) and

(f) (3)

to

(f) (5) and

(f) (6); and adding

paragraphs

(d) (5),

(d) (6), and

(f) (2) through

(f) (4), so that

a

transferor of a Class

I or Class III well must now maintain

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

that the transferee has adequately demonstrated financial

responsibility for the well or the well has been plugged and

abandoned or converted in compliance with the regulations.

U.S.

EPA now requires, at 40 CFR 144.28(1)

(corresponding with

35 Ill.

Adm. Code 704.150(1)),

that a notice of transfer submitted to the

Agency include an agreed date certain by which the transferee

will demonstrate financial responsibility for the injection well.

This provision authorizes the transferee to inject until it has

failed to prove responsibility.

40 CFR 144.21(c) (7)

(corresponding with 35 Ill. Adm. Code 704.142(g)) was added to

require an immediate cessation of injection if the Agency

notifies the owner or operator that the transferee has failed to

adequately demonstrate financial assurance.

40 CFR 144.52 (a) (7)

(corresponding with 35 Ill. Adm. Code 704.189(a))

and 40 CFR

144.28(d) (1)

(corresponding with 35 Ill. Adm. Code 704.150(d) (1))

now require an owner or operator and the transferee to each

maintain financial responsibility for the well until the well is

converted, plugged and abandoned, or the owner or operator

receives notice from the Agency that the transferee has

adequately demonstrated financial responsibility.

The

demonstration of financial responsibility was to have been made

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

below) or when designated in the notice of transfer of

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4

operational control,

if the transfer was later,

under amended 40

CFR 144.28(d) (2)

(corresponding with 35

Ill. Adm. Code

704.150(d) (2)).

U.S. EPA also simultaneously revised the financial assurance

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

(d) (6)

(corresponding

with 35 Ill.

Adm. Code 704.150(d) (5) and

(d) (6)), to require

notice to the Agency of any proceedings in bankruptcy involving

the owner or operator.

If the owner or operator has provided a

financial statement for proving financial responsibility,

it must

immediately cease injection until it provides alternative

financial responsibility.

40 CFR 144.21(c) (5)

(corresponding

with 35 Ill.

Adin.

Code 704.142(e)) was added to require an

immediate cessation of injection if the owner or operator fails

to provide alternative financial assurance upon commencement of

bankruptcy proceedings.

The Board made a small number of corrections to the federal

text.

In adapting the federal language to Section 704.142, the

Board corrected the improper cross—reference to 40 CFR

144.28(d) (7) at 40 CFR 144.21(c) (5) to 35 Ill. Adm. Code

704.150(d)(6).

We also added indefinite articles to subsections

(a) through

(e)

and references to the appropriate statutory

authority for the Agency or a court to order immediate cessation

of injection at subsection

(f)

of that Section.

We substituted

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

Other corrections relate to adapting the Illinois

regulations to accommodate the federal text.

For example, there

is a near linear correspondence in the structures of 40 CFR

144.28 and 35 Ill.

Adm.

Code 144.150.

To enhance the

relationship, the Board inserted nonsubstantive explanatory text

at subsections

(e),

(g)(2), and

(h)(2)

to correspond with federal

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

We added similar language at Section 704.142.

The Board invited comment on our approach to the financial

responsibility amendments.

The only comments received were those

of the Agency and JCAR,

suggesting minor corrections to the text

of the amendments.

The Board’s responses are summarized below.

Authorization by Rule——Sections 704.121, 704.141 through 704.144,

704.146 through 704.150

& 704.161

U.S. EPA amended the authorization by rule requirements at

58 Fed. Reg.

63895, on December 3,

1993 for the purposes of

clarification.

Minor clarifying amendments to 40 CFR 144.11

(corresponding with 35 Ill.

Adm. Code 704.121)

simplify the

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

well itself.

Amendments to 40 CFR 144.17(a)

(formerly the

preamble; corresponding with 35 Ill. Adm. Code 704.141(a))

state

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5

the conditions under which authorization by rule occur:

(1) the

injection occurred within one year of federal authorization of

the state’s UIC program,

or

(2)

the owner or operator properly

inventoried the well.

It also states the conditions for

authorization, that the owner or operator manage the well in

compliance with the UIC regulations.

What was formerly

designated subsection

(a)

in the federal rules

(corresponding

with 35 Ill. Adm. Code 704.143)

is now subsection

(b)

as a result

of renumbering the preamble language.

Subsection

(b) also

received amendments that designate when authorization by rule

terminates.

Formerly, the criteria for termination were the

grant of a permit,

a permit denial,

a failure to timely file a

permit application, and a failure to comply with substantive

requirements.

Now, authorization by rule terminates when a

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

40 CFR 144.21(c)

(corresponding with 35 Ill. Adm. Code 704.142)

was added.

It recites conditions under which an owner or

operator injecting into a well authorized by rule must terminate

injection.

These include a permit denial;

a failure to timely

submit a permit application,

inventory information, financial

assurance, or other information; or upon notification from the

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

demonstrated financial assurance.

As a result of the additions

to this provision,

subsections

(b)

and

(c) were renumbered to

subsections

(d) and

(e)

(corresponding with 35 Ill. Adm. Code

704.141(b)

and 704.144(e), respectively).

40 CFR 144.24

(corresponding with 35 Ill. Adm. Code 704.146)

contains the authorization by rule provisions for Class V

injection wells.

U.S. EPA amended this section to include that

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

owner or operator is prohibited from injection upon a permit

denial or a failure to timely submit a permit application,

inventory information, or requested information.

40 CFR 144.25 (corresponding with 35 Ill. Adm. Code 704.147)

recites when the Agency may demand

a permit application.

The

amendments appear aimed at shifting the focus of authorization

from the owner or operator to the well itself in subsections

(a)

and

(C),

and they shift from termination of authorization upon

certain occurrences to prohibition against injection.

The

amendments to 40 CFR 144.25

(corresponding with 35 Ill. Adm. Code

704.148, which relates to inventory requirements, make similar

shifts at the preamble.

At subsections

(d)

(amended) and

(e)

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

information.

The general deadline has shifted from one year from

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

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

the well owner or operator had filed a permit application within

one year of when the federal program became effective.

The

Agency needs not require inventory information of the owner or

operator of a well that has RCRA interim status.

For Class IV

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6

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

For

Class V wells,

U.S. EPA now allows the owner or operator to

resume injection 90 days after submitting the inventory required

information, unless

it receives a notification from the Agency

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

The

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

to one year after federal approval of the state program must

submit the inventory information by May 2,

1995.

If injection

begins after May 2,

1994,

the owner or operator must submit the

inventory information before beginning injection.

40

CFR

144.27 (corresponding with 35

Ill.

Adm. Code 704.149)

was reorganized slightly, but U.S. EPA again shifted the focus at

subsection

(c)

(formerly

(b))

from termination of authorization

by rule to a prohibition on injection upon certain failures of

the owner or operator.

40 CFR 144.31(a)

(corresponding with 35

Ill.

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

substantially reworded, but the only substantive changes appear

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

by rule must ultimately apply for a permit unless the

authorization is for the life of the well and that authorization

no longer terminates upon denial of a permit.

40 CFR

144.31(c) (2)

(corresponding with 35 Ill.

Adm. Code 704.161(b) (2))

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

144.21(d).

Subsection

(e)(lO)

(corresponding with subsection

(e) (2))

of that section was added to require an owner or operator

to submit a plugging or abandonment report.

The Board has followed the federal amendments, making only

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

with the Board’s drafting style.

Designation of actual dates in

place of the federal “upon the effective date of

.

.

.“

and minor

stylistic changes are discussed more fully in following segments

of this discussion.

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

704.146(b),

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

704.143(b),

“that is” to Section 704.147(a);

“the owner or

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

into

subsections; added “U.S.

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

effective date of the federal program was apparently intended;

added “that it” at Section 704.148(e) (4); repunctuated Section

704.150(b) (3)

for clarity; added “is submitted” to Section

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

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

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

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

changed structure of the Illinois regulations.

The Board invited comment on our approach to the

authorization by rule amendments.

The only comments received

were those of the Agency and

JCAR,

suggesting minor corrections

to the text of the amendments.

The Board’s responses are

summarized below.

We expand upon only one of the issues raised

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7

at this point in the discussion.

The Agency suggested that the Board follow the language of

the last sentence of 40 CFR 144.28(f) (2)

in Section

704.150(f) (2) (B)

by not adding the “by permit condition”

clause.

As briefly discussed above,

Section 39 of the Act, the Section

pertaining to permit issuance,

is the only authority of which the

Board is aware that allows the Agency to impose operational

conditions on facilities on a case-by—case basis.

An Agency

decision under Section 39 is appealable to the Board pursuant to

Section 40 of the Act.

The Board believes that the Agency can

issue a condition imposing operational constraints on a facility

authorized by rule without engaging in issuing a full UIC permit

evaluation under Subparts D and E of Part 704.

We did not intend that our use of “by permit condition”

would limit this authority of the Agency to impose the

requirements pursuant to Section 39.

Rather, Section 39 allows

the Agency to issue permits “when

the Board has by regulation

required a permit for the

.

.

.

operation of any type of facility

.“

The Board intended to specifically authorize the Agency

to exercise its Section 39 authority as regards scheduling

mechanical integrity testing of facilities authorized by rule.

However, the Board does appreciate the Agency’s perspective

that the use of the clause “by permit condition” might result in

misunderstanding of our intent.

For these reasons, we have

replaced that clause with the words “by written notice”.

This

echoes the language of Section 704.194, discussed below in the

context of a similar issue,

as adapted from 40 CFR 144.17.

In

substituting this language, the Board wishes to emphasize that we

believe that any imposition of a mechanical integrity testing

schedule by the Agency

is an Agency action pursuant to Section

39

of the Act, and it is appealable to the Board pursuant to Section

40 of the Act.

The Board has added a Board note to this effect.

We also wish to emphasize that the Agency may issue a notice

requiring an integrity testing schedule of a facility authorized

by rule without engaging in a full Subparts D and E permit

review.

Mechanical Integrity Testing Reciuirements—-Sections 704.181

&

730.108

U.S. EPA amended the mechanical integrity testing

requirements.

40 CFR 144.51(p)

(corresponding with 35 Ill.

Adin.

Code 704.181(g)) was removed, paragraph

(0)

(corresponding with

subsection

(g) was redesignated as

(p)

(corresponding with

subsection

(g)), and new paragraphs

(0)

and

(q) were added

(corresponding with subsections

(f) and

(h)).

New paragraph

(0)

allows the imposition of a permit condition that plugging and

abandonment of a well will not allow the migration of fluids into

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8

or between underground sources of drinking water

(USDWs),

or the

Agency can require revision of the plugging and abandonment plan

or deny the permit.

This provision explicitly states that

termination of injection is not abandonment.

New paragraph

(q)

requires the owner or operator to maintain and establish

mechanical integrity on a schedule established by the Agency.

If

the Agency determines,

based on information submitted by the

owner or operator, that the well lacks integrity,

it must send a

notice to that effect to the owner or operator.

The owner or

operator must cease injection within 48 hours of receiving the

notice from the Agency.

U.S. EPA also amended the substantive mechanical integrity

testing requirements of Section 146.8

(corresponding with 35 Ill.

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

annulus pressure with greater specificity.

Section 146.8(b) (1)

(corresponding with 35 Ill. Adm. Code 730.108(b) (1)) now requires

repeated testing of the tubing—annulus pressure,

at sufficient

frequency as to be representative,

as determined by the Agency,

at a pressure different from atmospheric pressure at the surface.

New Section 146.8(f)

(corresponding with 35 Ill.

Adin.

Code

730.108(f))

allows the Agency to require additional or

alternative tests if the required testing does not sufficiently

demonstrate that there is no movement of fluid into or between

USDWs.

The Board has adapted the mechanical integrity testing

requirements without substantive change.

The Board invited comment on our approach to the federal

mechanical integrity testing requirements.

The only comments

received were those of the Agency and JCAR,

suggesting minor

corrections to the text of the amendments.

The Board’s responses

are summarized below.

Recordskeeoing and Reporting Reauirements--Section 704.194

U.S. EPA added new 40 CFR 144.17

(corresponding with 35 Ill.

Adm. Code 704.194).

This provision allows the Agency to require

an owner or operator to establish and maintain records and make

reports,

in order to demonstrate compliance.

The Board has

reworded the federal language for consistency with the

requirements of Illinois administrative law.

The reworded

provision requires the Agency to require the maintenance of such

records and submission of such reports by permit condition as the

Agency deems are necessary to demonstrate compliance with the Act

and the Illinois regulations.

The Board invited comment on our approach to the

recordskeeping and reporting requirements.

The Agency suggested

in PC

2 that the Board should use the federal language of 40 CFR

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9

144.17 and relocate this provision as Section 704.108,

in the

Subpart A general provisions.

The Agency correctly points out

that this provision applies to facilities authorized by rule,

as

well as to permitted facilities.

The Board agrees to a major extent with the Agency,

so we

have made changes in the language of the amendments as adopted.

However, we believe that this provision is best left in its

present location with additional clarifying changes.

The issues raised by any Agency action under this provision

are related to any Agency action under Section 704.150(f) (2) (B).

In both instances,

the Agency may impose operational conditions

on the management of a facility authorized by rule--a facility

for which there is no permit issued.

As with Section

704.150(f) (2) (B), the Board does not wish to unduly constrain the

Agency in its ability to impose requirements on the owner or

operator of a facility authorized by rule.

First, we reiterate that any Agency decision to require

recordskeeping and reporting at a facility is made pursuant to

Section 39 of the Act, and it is appealable to the Board pursuant

to Section 40.

The Board also reiterates that the Agency may

impose such operating conditions without requiring the owner or

operator to obtain a permit under Subparts D and E of Part 704.

We have included reference to the owner or operator’s duty to

comply with Agency-imposed operating conditions imposed pursuant

to Section 704.194 at Section 704.144(b).

In the same way as for

the Section 704.150(f) (2) (B)

imposition of a mechanical integrity

testing schedule, discussed above, the Board used a Board note to

state that these decisions are made pursuant to Section 39 of the

Act and are appealable under Section 40.

Second, the Board acknowledges that 40 CFR 144.17 applies to

all facilities, whether operated under a permit or under

authorization by rule.

We therefore reworded the appropriate

segments of Section 704.194 so that it is clear that the Agency

may impose recordskeeping and reporting requirements as a

condition to a permit

(for a permitted facility) or by a written

notice (for a facility authorized by rule).

As a segment of this

rewording, we used the words “written notice” with regard to

facilities authorized by rule,

rather than the words “permit

condition”.

We erred initially by overlooking facilities

authorized by rule in this provision, and the Board appreciates

the opportunity to correct that oversight.

Third, the Agency comments highlight that this provision is

discretionary in the federal text of 40 CFR 144.17.

Our original

wording would have obliged the Agency to require recordskeeping

and reporting by permit condition.

There is no reason to deviate

from the permissive posture of the federal original.

We changed

“shall”

to

“may”.

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10

Fourth, the Board will not relocate this provision to

Subpart A, the general provisions.

We do not believe it is

either necessary or desireable.

As stated before, any imposition

of conditions on a facility authorized by rule is a Section 39

action in the nature of a permit decision, without regard to the

fact that the facility does not have a full UIC facility permit.

It is therefore the imposition of a permit condition.

This is

the substance of Subpart E,

and nothing in that Subpart expressly

limits the applicability of an inserted provision to facilities

having full UIC facility permits.

Nevertheless, to avoid the

confusion implicit in the Agency’s comments, that someone might

believe that a full UIC facility permit is necessary before the

Agency can impose an operating requirement under this provision,

added Section 704.144(c)

explicitly states that an Agency

imposition of an operational requirement does not require the

Agency to require the owner or operator to obtain a permit.

Finally, although not mentioned by the Agency, the Board

realizes that this provision raises certain issues relating to

permitted facilities.

Subpart H limits the Agency’s ability to

modify issued UIC permits.

Nothing in 40 CFR 144.17

limits an

exercise of discretion under that provision to federal subpart H.

U.S. EPA would likely read the imposition of such a restriction

on the Agency as rendering the Illinois regulations as less

stringent than the federal.

For these reasons, the Board has

divided this Section into two subsections.

Subsection

(a)

essentially contains the language based on 40 CFR 144.17.

Added

subsection

(b) expressly states that any exercise of Agency

discretion under this provision is not subject to the limitation

in Section 704.261 that the Agency may only modify a permit for

cause.

Simultaneously, we added language making it clear that

this exclusion from the modification for cause limitation applies

only to the imposition of conditions pursuant to Section 704.194.

Deletion of Class V Well Inventory Requirement——Section 738.152

U.S. EPA deleted the 40 CFR 146.52 (corresponding with 35

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

of a Class V injection well and for submitting inventory

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

the state program (i.e., by March 3,

1983).

The Board

incorporated this repeal without deviation.

Plenary Corrections to the Permitting Rules and Related

Provisions——Parts 700,

702,

703.

704,

705, and 730

The Board is using this opportunity to make several

corrections related to the earliest adoption and implementation

of the UIC and RCRA permitting rules.

Some of these problems

arose in the time since the Board initially adopted the

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11

regulations as a result of an intervening restructuring of the

federal regulations.

Others of the problems arose in the early

adoption of these regulations,

and the Board surmounted those by

resort to a series of reference to events that would occur in the

future——events that have long since occurred.

The result is that

the Board must correct references to federal regulations in

several Board Notes and several recitations of effective dates in

the rules.

The first set of corrective amendments relates to references

to federal regulations.

The Board initially based the RCRA

Subtitle C and UIC permitting rules on the federal consolidated

permit rules.

Those federal rules set forth the federal permit

requirements and procedures for all programs, air, water,

and

solid waste,

in a single, central location:

40 CFR 122 through

124.

The Board adopted a consolidated structure for the permit

rules, with 35 Ill.

Athu.

Code 702 through 705 setting forth the

permitting requirements for the RCRA Subtitle C and UIC programs.

Parts

702,

largely drawn on 40 CFR 122 and 705 set forth

requirements applicable to both programs.

Part 703 applied only

to RCRA permitting, and Part 704 applied only to UIC permitting.

Part 700 was a set of general provisions applicable to both

programs, but which also set forth the interplay with other

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

infectious waste, and special waste hauling) and water pollution

control.

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

references to the federal rules from which we derived each

Section of the UIC and RCRA permit rules.

U.S. EPA deconsolidated the permit rules on April

1,

1983,

at 48 Fed.

Reg.

14146.

40 CFR 122 and 123 now apply exclusively

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

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

sets forth the RCRA Subtitle C permit requirements.

40 CFR 124

still includes general procedural requirements for all programs.

After the deconsolidation of the federal permit rules,

the

Board began updating the Board Notes to reflect the changed

source for each provision.

We restricted the updates to Sections

open for other amendments.

Since that time, the Board Note

references in several Sections have changed to reflect the new

references.

However, several Sections remain with references to

now defunct federal provisions.

For these reasons, we use this

opportunity to change all remaining references in Parts 702, 703,

and 704, without regard to whether those Sections would have

included amendments based on the December 3,

1993 federal action

that is the basis of this rulemaking.

Further, we included Part

703, which pertains only to RCRA permitting at this time, rather

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

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

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

permit rules,

and we cannot see any reason to delay this action

---

12

for a simple preference for performing the update amendments

incidental to other, federally—derived amendments.

The

difficulty of tracing the federal amendments only increases with

the passage of time.

Thus,

relative to the references to federal regulations, the

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

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

(UIC) and

270

(RCRA).

Amended are text at Section 702.101(a) (3)

and the

Board Notes at Sections 702.101,

702.103,

702.124, 702.125,

702.140, 702.142 through 702.149,

702.151, 702.162 through

702.164,

703.126,

703.154,

703.156,

703.184,

703.200,

703.201,

703.205,

703.224,

703.242,

703.246,

704.102

through 704.105,

704.121,

704.123,

704.143,

704.146,

704.182

through 704.186,

704.190 through 704.193.

We added a reference to the appropriate

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

were formerly only references to 40 CFR 144.

We added references

to 40 CFR 270 at Section 703.158,

703.208,

703.210,

703.211, and

703.283, where there were formerly no references, and corrected

the references at Sections 703.186,

703.206,

703.245, and

703.247.

We corrected references to 40 CFR 144 at Sections

704.141, 704.144, 704.213, 704.261, and 704.263.

We added

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

before.

We repealed Section 702.102, rather than update the

Board Note,

since that Section no longer has a federal

counterpart and it serves no useful function at this time.

The

Board repealed Section 703.244 because it duplicates Section

703.247 and virtually repealed 704.164 because it duplicates

Section 702.163.

We corrected a reference to 40 CFR 124 at

Sections 705.121 and added them at Sections 705.127, 705.201

through 705.205, and 705.212.

In addition to these corrections,

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

where necessary and have reference the 1993 Code of Federal

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

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

possession.

The second set of corrective amendments relates to effective

date references

in the text and in source notes.

The federal

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

both provide that federal law preempts all state regulations not

approved by U.S.

EPA.

For this reason,

in the initial adoption

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

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

each Parts 700,

702,

704,

705,

720 through 723 and 725.

At

Section 700.106 we stipulated that the provisions of the UIC and

RCRA rules would become effective upon federal authorization of

the applicable program, and that the state would not issue

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

For

the effective dates of the regulations, in the main source note

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

referenced to Section 700.106 for the effective date.

At the

---

13

time

the

regulations

and

initial

amendments

occurred,

no

federal

authorizations

had

occurred.

As is set forth in greater detail in the historical summary

incorporated into this opinion,

U.S. EPA granted Illinois interim

authorization to administer the RCRA Subtitle C program effective

May 17,

1982.

It conferred final authorization effective January

31,

1986.

The interim authorization allowed the implementation

of the Illinois substantive generator,

transporter, and interim

status treatment, storage, and disposal (T/S/D)

facility

standards.

The final authorization allowed the state to begin

granting permits for T/S/D facilities.

U.S. EPA granted

authorization for the UIC program effective March 3,

1984.

This

allowed implementation of the Illinois substantive UIC

regulations and the granting of permits by the state.

As for dealing with the corrections to the references to

federal rules, discussed above,

the Board chose to make the

corrections to effective date references as we opened Sections

for federal amendments.

Similarly to the situation of the

references to the consolidated permit rules,

it is now several

years later,

and there remain numerous effective date references

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

Section 700.106 itself,

in turn,

only contains several references

to “effective upon approval by the U.S.

EPA”, without setting

forth actual dates.

As noted,

those dates are March

3,

1984 for

UIC regulations and permitting, May 17,

1982 for the substantive

RCRA regulations, and January 31,

1986 for RCRA permitting.

To avoid any further possibility of confusion, we are

beginning the substitution of the actual dates in the appropriate

places at this time.

First, the Board has restructured Section

700.106 so that it now acts as a reference to federal

authorizations and when the Parts involved in the initial

adoption of the UIC and RCRA programs took effect.

In the course

of reviewing Part 700 for related and other corrections based on

intervening events since its last amendment in December,

1983, we

noted a number of problems with this Part.

The Section source

notes throughout refer to Section 700.106 for an effective date,

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

longer any.

Various other provisions perform general, but

unnecessary functions,

such as outlining the structure of the

Board’s regulations, reciting savings clauses, and duplicating

statements of applicability for other Parts.

The only Section in

this Part that serves any present function essential to the UIC

and RCRA regulations, as explained below,

is Section 700.106.

For these reasons,

it is easier to delete the provisions than to

repair them,

so the Board has repealed all of Part 700 but

Section 700.106.

Second, multiple (usually two) references to Section 700.106

have been changed to May 17,

1982 at the main

(Part) source notes

---

14

to Parts 700 (three references),

702,

705,

720,

721, 722,

723,

and 725.

The references were changed to March

3,

1984 for the

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

that the second set of amendments to Part 704 is technically

listed as effective at an earlier date, December 19,

1983.

The

Board has opened Sections 730.104 through 730.106,

730.132, and

730.151 for editorial amendments for the sake of changing their

Section source notes.

Although these actions take care of the references to

Section 700.106 throughout Parts 700,

702,

704,

705, and 730,

it

leaves those in Parts 720 through 723 and 725 intact.

However,

we cannot complete this task until the next RCRA update,

since

several of the references appear in substantive RCRA regulations.

To the extent those references remain until then, we have updated

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

These corrections of the references to the federal

regulations and the effective dates of the regulations and

amendments has proven very tedious.

In fact, these corrections

now constitute most of the amendments now involved in this

docket.

Nevertheless, the Board believes that we have already

waited too long to accomplish this housekeeping matter, and we

will put it off no longer.

The Board invited comment on our approach to these

corrective amendments.

We received none.

Correction of

IJIC Program Approval Date--Sections 702.110,

704.141, 704.142, 704.148. 704.150

& 704.161

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

1984, at 49 Fed. Reg.

3991, effective March

3,

1984.

The

regulations previously referred to February

1,

1984 as the date

of approval.

Although technically true, that this was the date

of the approval, the authorization was not effective on that

date.

This was potentially misleading, since several obligations

flowed from that date.

For this reason, the Board now corrects

the effective date where it still appears, in Sections 702.110

(“date of approval of the Illinois UIC program”), 704.148

(end

Board Note),

and 704.161(b)(1)(C).

Section 705.144(d) simply

referred to the effective date of the permit requirements.

We

substitute the UIC effective date of March

3,

1984 and RCRA

permitting effective date of January 31,

1986 at that provision.

The amendments of December 3,

1993 included references to

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

These

appeared at 40 CFR 144.21(a)

(corresponding with 35 Ill. Adm.

Code 704.141(a) (1)),

144.22(b) (8)

(i)

(corresponding with 35 Ill.

Adm. Code 704.142(h)), 144.26(e) (2)

(corresponding with 35 Ill.

Adm. Code 704.148(d) (1)), and 144.28(d)(2)

(corresponding with 35

---

15

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

The Board made the similar

substitution of the date in these provisions, substituting the

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

“within one year after the date

.

.

.“.

Where another date, such

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

appeared, at Section 704.145, the Board used the actual date

based on computation from the effective date.

The Board invited comment on our correction and substitution

of these dates.

We received none.

Update of General Program Provisions-—Sections 702.101 through

702.

110

Subpart A of Part 702 includes many general provisions

relating to the regulatory structure in Illinois.

These include

statements of purpose, scope, and applicability for the UIC and

RCRA permitting rules, citation to the substantive regulations

relating to each program, and procedural guidance on permit

appeals and seeking adjusted standard, rulemaking,

or variance

relief from the Board.

The review of the permitting rules for

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

corrective amendment of the provisions of this Subpart.

Host of the corrections are of a general nature, discussed

below.

Others relate to the passage of time.

At Section

702.101(c)

(2), the Board now refers to the substantive

regulations

of

Parts 726,

728,

738,

and

739, which we have more

recently

adopted.

We

repeal

Section

702.102,

since

it

essentially duplicates segments of Section 702.101, and change

the heading of Section 702.101 accordingly.

We correct Section

702.103 to indicate the reference to the current state federal

confidentiality provisions, and we delete the reference to any

requirements imposed by way of a permit application form.

We

expand Section 702.104, so that it now explains the purpose of

its cross—reference.

We add an explanatory discussion of

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

discussion so that it clearly refers to general rulemaking.

We

made clarifying changes to the Section 702.106 discussion of the

Agency’s adoption of implementing criteria.

We amended Section

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

Agency determinations;

in order to clarify that many Agency

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

authority to review Agency determinations.

We added a discussion

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

for relief at the time this Section was originally crafted.

To

Section 702.109, the Board has added language that explains the

differences between a formal and an informal complaint and the

distinction in Board activities upon receiving either.

Finally,

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

consolidated the definition of “Environmental Protection Act”, to

---

16

correspond with the numerous citations to the Act throughout

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

February 1,

1984

(when U.S. EPA published the approval)

to March

3,

1984

(the date it became effective)

in the definition of “date

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

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

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

(municipal solid waste landfill) and Subtitle I

(underground

storage tank)

programs.

The Board invited comment on our approach to these

corrective amendments.

We received none.

General Corrective Amendments——All Sections. As Necessary

As

a routine matter, the Board has engaged in a number of

general amendments to clean up text where necessary.

This

includes cleaning up the punctuation and grammar of the existing

base text,

as well as the text of the federal amendments,

wherever necessary,

to comport with the Board’s current

conventions of style, grammar, and punctuation, and to add

clarity to the rules.

Some of these amendments have been made

incidental to the amendments noted above.

The amendments are minor, and do not warrant individual

discussion.

“Which” has been changed to “that” where

it

prefaces

a restrictive relative clause.

Commas and semicolons were added

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

series.

Telephone numbers were formatted so the area code

appears set off with a dash, rather than parentheses.

Personal

pronouns were replaced with “it”,

“its”, and “their” to the

maximum extent possible, unless a natural person was clearly

intended.

Where a person pronoun remained, the Board used the

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

usage.

We added articles, adjectives,

and verbs; substituted

prepositions and verbs; rearranged the positions of prepositional

phrases within sentences; and performed many other grammatical

revisions for clarity.

The Board invited comment on our approach to these

corrective amendments.

We received none.

Public Comment—Based Corrections

As mentioned above, the Board received several suggestions

from JCAR staff and the Secretary of State for corrections to the

text of the amendments as proposed.

The Board tabulates the

suggested corrections and our resulting actions as follows

(sources of suggested corrections are indicate with

‘

indicating

---

17

JCAR,

2

indicating the Secretary of State,

~ indicating the

Agency, and ~ indicating Board-initiated;

*

denotes a Section not

included

in

proposed

rule):

Section~~0(~

Board Action

700. table of

Reformatted underlining and strikeout in

contents2

listing for Section 700.105

700. table of

Added “700.” to listing for Section

contents4

700.Appendix A

700. authority note’

Replaced citation to the Illinois Revised

Statutes with a citation to the Illinois

Compiled Statutes

700.106(a) (2)

&

Deleted word “be” (alternative suggested

(a)

(3)1.4

wording suggested for the provision was

not used)

700.605~

Added Section source note

700.Appendix A4

Corrected Section heading format

702. table of

Corrected listing for Section 702.103 by

contents1

adding “Agency or Board” to agree with the

heading in the text of the rules

702. authority note1

Deleted ending parentheses

702.106(a)2

Capitalized “Section” in the text

702.161(a)2

Added subsection heading

703. authority note’

Deleted ending parentheses

703. source note2

Illinois Register citation and effective

date completed for R94-7

*

703.110’~

Section amended to reference Section

720.111 in the same format as does Section

702.104

703.206”~

Replaced ending period with semicolon and

added “and”

703.208(a)(2)(B)(ii)4

Ending period added

703.208(a) (5) (D)’

Replaced ending period with semicolon

703.211(a)

(4)1

Replaced ending period with semicolon

---

703.232(c)

(8)1~4

703.245(b)

(7)1

703

.

246(a)

‘

703 .247’

703.283’

703.283(b) (2)’~~

704. table of

contents’

704. authority note1

704. source note’

704.121’

704.121’

704. 121~

704.123(b)2

704.123(b) (l)~

704

.

1421

704.142(f)1

18

Removed semicolon from mid—sentence

(did

not accept suggested alternative location

of semicolon)

Replaced ending semicolon with period

Replaced ending semicolon with period

Added Section source note

Added Subpart heading before Section

heading

Removed comma before “below”

Amended listing for Section 704.142 to

reflect amendments to Section heading in

the text of the rules

Deleted ending parentheses

Added missing Illinois Register volume

number in citation to R89-2

Pluralized the Subpart heading before the

Section heading to agree with the listing

in the table of contents

Capitalized “Part”

(two appearances);

added source note

Capitalized “Part”

(two appearances);

added omitted federal amendments to render

text as “authorized by rule or except as

authorized by a permit”; added source note

Added subsection heading

Added language to missing subsection to

maintain structural consistency of rules

(rather than renumber subsections

(b)

through

(d))

Added “Section” to heading; corrected

misspelling of the word “or”

Changed “forty eight” to “48”;

added

omitted word “mechanical”

Added “by” after word “regulated”

704.142 (i)’

---

704.142 source note’

704. 143~

704.144~~~

704.146(a)’

704. 146(c)3

704.147 (a)

‘~

704.1481

704.148(d) (1)’

704.148(e) (1)’

704.148(e) (4) Board

note’

704.148 end Board

notel,4

704.149(b) (1)’

704.149(d)2

704.149 source note’

704.150(b) (1)~

704.150(b) (2)’~~

19

Corrected format to reflect former

codification

Corrected “plugging or abandonment” to

“plugging and abandonment”

Renumbered existing text as subsection

(a); added subsection

(b)

to require

compliance with Agency—imposed operational

conditions; added subsection

(c) to

clarify that the imposition of operational

conditions by the Agency does not require

the Agency to require a permit

(alternative to suggestions relating to

Sections 704.105(f) (2) (B) and 704.194)

Removed underlining from ending period

Restored words “or upon proper closure of

the well” omitted from proposed amendments

Removed words “Class IV”

Corrected misspelling of the word “or”

Singularized “owner”

Added missing words “notice from the

Agency” after word “receives”

Deleted ending parentheses

Deleted ending parentheses; added year to

citation to the Code of Federal

Regulations; Added citation to the Federal

Register action prompting the amendments

Replaced ending period with semicolon

Renumbered second subsection “(c)” to

(d)

Corrected “added” to “amended”

Deleted the word “or” at the end

Replaced ending period with semicolon;

added the word “and” at the end

Lower cased the word “plan”

704.150(c) (2)’

---

704.150(d)

(1)1

704.150(d) (2)~

704.150(e)

&

(f)’

704.150(f)

(2)1

704.150(f) (2) (A)’

704.150(f) (2) (B)3

704.150(g) (2)

&

(h)

(2)1

704.150(h) (3)’

704.150(1) (1)~

704.150(1) (2)~

704.150 source note’

704.161 end Board

note4

704.162(c) (1)’

704.164 source note’

704.181(f)’

704.181(h) (1)’

704.181(h)

(3)1~3

20

Added omitted words “demonstrate and”

before the word “maintain”

Corrected misspelling of the word “or” in

the second sentence

Corrected subsection numbering amendments

format

Lower cased the word “mechanical”

Added colon at the end.

Replaced words “permit condition” with

words “written notice”; added Board note

explaining nature of notice as appealable

to the Board (alternative to suggested

deletion of words “permit condition”;

related to changes in SectIons 704.144 and

704.194)

Added the word “by” after the word

“regulated”

Replaced

existing

semicolon

with

a

colon

Added omitted amendment changing “owner or

operator” to “transferor of a Class

I or

Class III well authorized by rule”

Added omitted words “a specific date for

transfer of ownership or operational

control of the well; and”

Added the missing Section source note

Added the omitted citation to the Federal

Register source of the amendments

Replaced ending period with semicolon

Corrected “added” to “amended”

Added word “Class” before “III”

Corrected misspelling of the word “or”

Corrected the typographic error “tot he”

to “to the”

---

21

704.181(h)

(3)3

Corrected “showing” to read

“demonstration”

704.182 end Board

Deleted underlining under end period

note’

704.189(c)’

Corrected numbering of former subsection

(b) to subsection

(c)

704.189 end Board

Deleted end parentheses

note’

704.194~

Designated proposed provision as

subsection

(a); reworded the first line to

make the imposition of a condition

requiring recordskeeping and reporting

discretionary with the Agency; added

language to allow the Agency to require

recordskeeping and reporting by written

notice to the owner or operator of a

facility authorized by rule;

added

language to the Board note to indicate

that a written notice to the owner or

operator of a facility authorized by rule

is appealable to the Board

(alternative to

suggested language and suggestion to

relocate this Section to Subpart A;

related to changes in Sections 704.144 and

704.150(f) (2) (B)); added subsection

(b) to

assure that the modification for cause

limitation of Section 704.261 does not

apply to this Section

704.203 (a)1

Added a period at the end

704.213’

Added the Subsection heading before the

Section heading

705. authority note4

Corrected citation with plural “Sections”;

replaced citation to the Illinois Revised

Statutes with

a citation to the Illinois

Compiled Statutes

705.121 end Board

Removed underlining from “3(a)”

note1

705.124 end Board

Restored citation to federal subsection

note’

Ce) by deleting amendment to subsection

(d)

---

705.125’

705. 127’

705.141(d)’

705. 142’

705.144(b) (5)’

705.144(d)2

705.182 (a) (3) (B)’

705.182(c)’

705.203 (a)2

705.204 (a)2

705.205(a)

1,2

705.210 end Board

note’

705. 211’

705.211(d)2

705.212(b)2

705.212(d)’

730. table of

contents2

22

Indicated “Section” as existing text by

deleting amendment from “Sec.”

Capitalized “Part” in the text;

delete

words “processing of two or more

applications for those permits” from re—

existing text as rendered awkward by the

amendments

Deleted the parenthesis from the end of

the first sentence

Removed comma added between the words

“basis” and “for”

Replaced ending period with semicolon and

word “and”

Capitalized “Section” in the text

Removed overstruck comma from between the

words “Agency” and “shall”

Removed the amendment markings to indicate

that “hearing officer”

is existing text

Capitalized “Section” in the text

Capitalized “Section” in the text

Capitalized “Section” in the text

Added parentheses to the date

in the Code

od Federal Regulations citation

Added the date to the Code of Federal

Regulations citation

Capitalized “Section” in the text

Capitalized “Part” in the text

Revised amendments to indicate change from

“paragraphs” to “subsection”; Corrected

the title and citation of Administrative

Review Law

Removed the underlining from the word

“the”

in the listing for Section 730.114;

added “(Repealed)” to the listing for

Section 730.152

---

24

732

Petroleum Underground Storage Tanks

738

Hazardous Waste Injection Restrictions

739

Standards for the Management of Used Oil

Special provisions for RCRA Subtitle C cases are included in

Parts 102,

103,

104 and 106 of the Board’s procedural rules.

History of RCRA Subtitle C and State Hazardous Waste Rules

Adoption

The Board has adopted and amended the Resource Conservation

and Recovery Act (RCRA)

Subtitle C hazardous waste rules in

several dockets.

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

I RCRA Subtitle C regulations.

U.S. EPA granted Illinois Phase

I

authorization on May 17,

1982,

at 47 Fed.

Reg. 21043

(May 17,

1982).

The Board adopted RCRA Subtitle C Phase II regulations in

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

U.S. EPA granted

final authorization of the Illinois RCRA Subtitle C

“base

program” on January 31,

1986,

at 51 Fed. Reg.

3778

(January 30,

1986).

U.S. EPA granted authorization to “Cluster I revisions”

to the Illinois program and granted partial Hazardous and Solid

Waste Amendments

(HSWA)

(Pub.

L.

98-616,

Nov.

8,

1984)

authorization effective March 5,

1988,

at 53 Fed. Reg.

126

(January

5, 1988).

U.S. EPA authorized certain subsequent

amendments and granted further partial HSWA authorizations

effective April 30,

1990,

at 55 Fed. Reg. 7320 (March

1,

1990),

and June 3,

1991, at 56 Fed. Reg. 13595

(April

3,

1991); and

August 14,

1994, at 59 Fed. Reg.

30525

(June 14,

1994).

U.S. EPA

codified its approvals of the Illinois program at 40 CFR 272.700

and 272.701 on November 13,

1989,

at 54 Fed. Reg. 37649

(Sep.

12,

1989), and on March 31,

1992,

at 57

Fed. Reg. 3731

(Jan.

31,

1992).

The entire listing of all RCRA Subtitle C identical in

substance rulemakings follows (with the period of corresponding

federal revisions indicated in parentheses):

R81-22

45 PCB 317, September 16,

1981

& February 4,

1982;

6 Ill. Reg.

4828, April 23,

1982, effective May

17,

1982.

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

R82—18

51 PCB 31, January 13,

1983;

7 Ill. Reg.

2518,

March 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 R82-19)

---

25

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—1

71 PCB 110, July 11,

1986;

10 Ill. Reg.

13998,

August 22,

1986, effective August 12,

1986.

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

R86—19

73 PCB 467, October 23,

1986;

10 Ill. Reg.

20630,

December 12,

1986, effective December

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

6/30/86)

R86—46

79 PCB 676, July 16,

1987;

11 Ill. Reg.

13435,

August 14,

1987, effective August 4,

1987.

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

R87—5

82 PCB 391, October 15,

1987;

11 Ill. Reg.

19280,

November 30,

1987, effective November 10

& 12,

1987.

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

R87—26

84 PCB 491, December 3,

1987;

12

Ill. Reg.

2450,

January 29,

1988, effective January

15,

1988.

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

R87—32

Correction to R86—1; 81 PCB 163,

September 4,

1987;

11 Ill. Reg.

16698, October 16,

1987,

effective September 30,

1987.

R87—39

90 PCB 267, June 16,

1988;

12 Ill. Reg.

12999,

August 12,

1988, effective July 29,

1988.

(7/1/87

through 12/31/87)

R88—16

93 PCB 513, November 17,

1988;

13

Ill. Req.

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)

---

26

R89—9

109 PCB 343, March 8,

1990;

14 Ill. Reg.

6225,

April

27, 1990, effective April

16,

1990.

(1/1/89

through 6/30/89)

R90—2

113 PCB 131, July 3,

1990;

14 Ill. Reg.

14401,

September 7,

1990,

effective August 22,

1990.

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

R90—11

121 PCB 97, April

11, 1991; corrected at 122 PCB

305, May 23,

1991; corrected at 125 PCB 117,

August 8,

1991; uncorrected at 125 PCB 435, August

22,

1991; 15 Ill. Reg.

9323, effective June

17,

1991.

(Third Third Land Disposal Restrictions)

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

R90—17

Delisting Procedures

(See below)

R91—1

125 PCB 119, August 8,

1991;

15 Ill. Reg.

14446,

effective September 30,

1991.

(Wood Preserving

Rules)

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

R91—13

132 PCB 263, April

9,

1992;

16 Ill. Reg. 9489,

effective June 9,

1992.

(Boilers and Industrial

Furnaces (BIFs)

Rules)

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

R91—26

129 PCB 235, January 9,

1992;

16 Ill. Reg.

2600,

effective February

3,

1992.

(Wood Preserving

Rules Compliance Dates)

R92—1

136 PCB 121,

September 17,

1992;

16 Ill.

Reg.

17636, effective November 6,

1992.

(7/1/91

through 12/31/91)

R92—10

138 PCB 549, January 21,

1993;

17 Ill. Reg.

5625,

effective March 26,

1993.

(Leak Detection Systems

(LDS)

Rules)

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

R93—4

——

PCB

——,

September 23,

1993;

17 Ill. Reg.

20545,

effective November 22,

1993.

(Used Oil Rules)

(7/1/92 through 12/31/92)

R93—16

--

PCB

-—,

March 17,

1994, Supplemental opinion

and order on April

21,

1994.

(1/1/93 through

6/30/93)

R94—7

——

PCB

——,

June 23,

1994,

18 Ill. Reg.

12160,

effective July 29,

1994.

(7/1/93 through

12/ 31/93)

R94—17

-—

PCB

-—,

October 20

& November

3,

1994,

18 Ill.

Reg.

——,

effective November

—-,

1994.

(1/1/94

through 6/30/94)

---

23

730. authority note1

Deleted ending parentheses

As usual, the Board greatly appreciated the numerous suggestions

for corrections submitted during the course of this proceeding.

In incorporating the suggestions into the text of the

adopted amendments,

the Board occasionally used alternatives to

the JCAR and Agency suggestions.

This occurred in the Parts 700

and 705 authority notes

(in not retaining the Illinois Revised

Statutes citation) and in Sections 700.106(a) (2) and

(a) (3),

703.232(c) (8), 703.283(b) (2), 704.144(b),

704.150(f) (2) (B), and

704.194.

In addition to the deviations from the changes recommended

by JCAR and Agency, the Board also did not incorporate

corrections in response to several JCAR suggestions.

Thus,

the

Board did not follow JCAR suggestions in Sections 703.283(e),

704.147(a) (1), 704.150(d) (2), and 705.205(b) and in numerous

Board notes in Parts 704 an 705.

This was because we could find

no errors in the Board’s text as submitted to the Secretary of

State for publication as indicated by JCAR.

It is possible that

those errors actually appeared only in the text generated by JCAR

in retyping the proposed amendments for publication.

HISTORY OF RCRA SUBTITLE C

AND

UIC ADOPTION

The Illinois UIC (Underground Injection Control), RCRA

(Resource Conservation and Recovery Act)

Subtitle C,

and UST

(Underground Storage Tank)

regulations, together with more

stringent state regulations particularly applicable to hazardous

waste,

include the following Parts of Title 35 of the Illinois

Administrative Code:

700

Outline of Waste Disposal Regulations

702

RCRA Subtitle C and UIC Permit Programs

703

RCRA Subtitle C Permit Program

704

UIC Permit Program

705

Procedures for Permit Issuance

709

Wastestream Authorizations

720

General

721

Identification and Listing

722

Generator Standards

723

Transporter Standards

724

Final TSD Standards

725

Interim Status TSD Standards

726

Specific Wastes and Management Facilities

728

USEPA Land Disposal Restrictions

729

Landfills:

Prohibited Wastes

730

UIC Operating Requirements

731

Underground Storage Tanks

---

27

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.E2d

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 U.S.

EPA’s dioxin listings.

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

1048, effective January

1,

1989.

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

Amoco and Envirite (the date of the corresponding federal action

is included in parentheses):

R85—2

69 PCB 314, April 24,

1986; 10 Ill. Reg. 8112, May

16,

1986, effective May 2,

1986.

(9/13/85)

R87—30

90 PCB 665, June

30,

1988;

12 Ill. Reg.

12070,

July 22,

1988,

effective July 12,

1988.

(11/14/86)

R91—12

128 PCB 369, December 19,

1991;

16 Ill. Reg.

2155,

effective January 27,

1992.

(USX Corp.)

Subsequently, upon the April 30,

1990 federal authorization

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

pending delisting petitions to the Board.

The Board docketed

these as site-specific rulemaking proceedings

(the name of the

petitioner waste generator appears in parentheses):

R90—18

Dismissed at 123 PCB 65, June 6,

1991.

(USX

Corp.,

South Works)

R90—19

Dismissed at 116 PCB 199, November 8,

1990.

(Woodward Governor Co.)

R90—23

Dismissed at 124 PCB 149, July 11,

1991.

(Keystone Steel

& Wire Co.)

The Board has modified the delisting procedures to allow the

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

R90—17

119 PCB 181,

February 28,

1991;

15 Ill. Reg. 7934,

effective May 9,

1991.

---

28

Waste generators have filed Part 106 adjusted standard

petitions for solid waste determinations with the Board pursuant

to Section 720.130

(generator name in parentheses):

AS89—4

Dismissed at 105 PCB 269, November 15,

1989.

(Safety-Kleen Corp.)

AS89—5

Dismissed at 113 PCB 111, July 3,

1990.

(Safety—

Kleen Corp.)

AS9O—7

Dismissed at 124 PCB 125, July 11,

1991.

(Quantum

Chemical Co.)

Waste generators have filed Part 106 adjusted standard

petitions for hazardous waste delistings with the Board pursuant

to Section 720.122

(generator name in parentheses):

AS91-1

Granted at 130 PCB 113,

February 6,

1992, and

modified at 133 PCB 189, April

23,

1992.

(Keystone Steel

& Wire Co.)

AS91-3

Granted at 139 PCB 121, February 4,

1993; opinion

issued at 140 PCB

--,

March 11,

1993.

(Peoria

Disposal Co.)

AS93-7

Granted at

--

PCB

--,

February

17,

1994.

(Keystone Steel & Wire Co.)

AS94-10

Presently pending.

(Envirite Corp.)

The Board has procedures to be followed in cases before it

involving the RCRA Subtitle C regulations:

R84—10

62 PCB 87,

349, December 20,

1984 and January 10,

1985;

9 Ill. Reg.

1383, effective January 16,

1985.

The Board also adopted special procedures to be followed in

certain determinations under Part 106.

The Board adopted these

Part 106 special procedures

in R85-22 and amended them in R86-46,

listed above.

One Part 106 adjusted standard proceeding filed pursuant to

728.106 sought relief from a prohibition against land disposal

(petitioner’s name in parentheses):

AS9O—6

Dismissed at 136 PCB 93, September 17, 1992.

(Marathon Petroleum Co.)

Other adjusted standard proceedings sought relief from

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

requirements

(petitioners’ names in parentheses):

---

29

AS9O—8

130 PCB 349,

February 27,

1992.

(Olin Corp.)

AS91—4

131 PCB 43, March 11,

1992.

(Amoco Oil Co.)

One adjusted standard proceeding sought relief

from a RCRA

Subtitle C land disposal restriction (petitioner’s name in

parentheses):

AS9O—6

136 PCB 6, September

17,

1992.

(Marathon

Petroleum Co.)

Still another adjusted standard proceeding relates to

substantive treatment,

storage, and disposal facility

requirements of the RCRA Subtitle C regulations

(petitioner’s

name and requirements involved in parentheses):

AS91-10

Dismissed at

-—

PCB

--,

May 19,

1994.

(Cabot

Corp.; secondary containment for tanks)

In another regulatory proceeding,

the Board has considered

granting temporary relief from the termination of an exclusion of

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

tioner’s name in parentheses):

R91—ll

Dismissed at 125 PCB 295, August

8,

1991.

(Big

River Zinc Corp.)

The Board has also adopted requirements limiting and

restricting the landfilling of liquid hazardous wastes, hazardous

wastes containing halogenated compounds, and hazardous wastes

generally:

R81—25

60 PCB 381, October 25,

1984;

8 Ill. Req.

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 IJIC Rules Adoption

The Board has adopted and amended Underground Injection

Control

(UIC)

regulations in several dockets to correspond with

---

30

the federal regulations.

One such docket, R82-18, was a RCRA

Subtitle C docket.

U.S. EPA authorized the Illinois UIC program

on March 3,

1984, at 49 Fed. Req. 3991

(Feb.

1,

1984);

codified

that approval as 40 CFR 147,

Subpart 0, at 49 Fed. Reg.

20197

(May 11,

1984); and amended the authorization at 53 Fed.

Reg.

43087

(Oct.

25,

1988).

The entire listing of all UIC rulemakings

follows

(with the period of corresponding federal revisions

indicated in parentheses):

R81—32

47 PCB 93, Nay 13,

1982;

6 Ill. Req.

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. Req.

2518,

March 4,

1983, effective May 17,

1982.

(11/11/81

through 6/24/82)

R83—39

55 PCB 319, December 15,

1983;

7 Ill. Reg.

17338,

December 20,

1983, effective December 19,

1983.

(4/1/83)

R85—23

70 PCB 311

& 71 PCB 108, June 20

& July 11,

1986;

10 Ill. Reg.

13274, August

8,

1986,

effective July

28

& 29,

1986.

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

R86—27

Dismissed at 77 PCB 234, April 16,

1987.

(No U.S.

EPA amendments through 12/31/86).

R87—29

85 PCB 307, January 21,

1988;

12 Ill. Req.

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. Req.

3059,

March 2,

1990, effective February 20,

1990.

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

R89—11

111 PCB 489, Nay 24,

1990;

14 Ill. Req.

11948,

July 20,

1990, effective July 9,

1990.

(1/1/89

through 11/30/89)

R90—5

Dismissed at 109 PCB 627, March 22,

1990.

(No

U.S. EPA amendments 12/1/89 through 12/31/89)

---

31

R90—14

122 PCB 335, May 23,

1991; 15 Ill. Req.

11425,

effective July 24,

1991.

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

R91—4

Dismissed at 119 PCB 219, February 28,

1991.

(No

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

R91—16

Dismissed at 128 PCB 229, December

6,

1991.

(No

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

R92—4

Dismissed at 133 PCB 107, April

9,

1992.

(No U.S.

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

R92—13

139 PCB 361, February 4,

1993;

17 Ill. Req.

6190,

effective April

5,

1993.

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

R93—6

——

PCB

——,

August

5,

1993;

17 Ill. Reg.

15641,

effective September 14,

1993.

(7/1/92 through

12/31/92)

R93—17

Dismissed at

——

PCB

--,

September 23,

1993.

(No

U.S. EPA amendments 1/1/93 through 6/30/93)

R94—5

This docket.

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

In one proceeding filed, the Board granted an adjusted

standard from a UIC land disposal restriction, pursuant to the

procedures outlined above with respect to the RCRA Subtitle C

program

(petitioner name in parentheses):

AS92-8

Granted at

——

PCB

--,

February 17,

1994.

(Cabot

Corp.; no migration exception)

AGENCY OR BOARD ACTION?

Section 7.2(a)(5)

of the Act requires the Board to specify

which decisions USEPA will retain.

In addition, the Board is to

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

general division of functions within the Act and other Illinois

statutes.

In situations in which the Board has determined that USEPA

will retain decision-making authority, the Board has replaced

“Regional Administrator” with USEPA,

so as to avoid specifying

which office within USEPA is to make a decision.

In a few instances in identical in substance rules,

decisions are not appropriate for Agency action pursuant to

a

permit application.

Among the considerations in determining the

general division of authority between the Agency and the Board

are:

---

32

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.

EDITORIAL CONVENTIONS

As a final note,

the federal rules have been edited to

establish a uniform usage throughout the Board’s regulations.

For example, with respect to “shall”, “will”, and “may”

—

“shall”

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

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

is not the subject of the sentence.

“Will”

is used when the

Board obliges itself to do something.

“May”

is used when choice

of a provision is optional.

“Or”

is used rather than “and/or”,

and denotes “one or both”.

“Either”..

.

“or” denotes “one but not

both”.

“And”

denotes

“both”.

IT

IS

SO

ORDERED.

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board, hereby certify jhat4the above opini n and order was

adopted on the

~i

‘~--~

day of _____________________________

1993, by a vote of

~

.

C.

~Dorothy

N.

G\~n,

Clerk

Illinois Pollution Control Board