ILLINOIS POLLUTION CONTROL BOARD

August

5,

1993

IN THE MATTER OF:

)

R93—6

UIC UPDATE,

 USEPA REGULATIONS

)

 (Identical

 in Substance Rules)

(7—1—92 THROUGH 12—31—92)

)

Adopted Rule.

 Final Order.

OPINION AND ORDER OF THE BOARD

 (by J.

 Anderson):

Pursuant to Sections 13(c)

 and 22.4(a)

 of the Environmental

Protection Act

 (Act),

 the Board adopts amendments to the

Underground Injection Control

 (UIC)

 regulations.

Both Sections 13(c)

 and 22.4(a)

 provide for quick adoption

of regulations which are “identical

 in substance”

 to federal

regulations and that Title VII of the Act and Section

 5 of the

Administrative Procedure Act

 (APA)

 shall not apply.

 Because this

rulemaking

 is not subject to Section

 5 of the APA,

it

 is not

subject

 to first notice or to second notice review by the Joint

Committee on Administrative Rules

 (JCAR).

 The federal UIC

regulations are found at 40 CFR 144,

 146 and 148.

 This

rulemaking updates UIC rules to correspond with federal

amendments made in the period from July

 1 through December 31,

1992.

 The USEPA actions during this period were as follows:

Federal Action

 Summary

57

 Fed. Reg.

31962

 (July 20,

 1992)

 Stay of technical amend-

ment to Third-Third rules

as they relate to newly—

listed wastes.

57

 Fed. Reg.

37194

 (Aug.

18,

 1992)

 Land disposal restric-

tions for newly-listed

wastes.

57

 Fed. Reg.

46292

 (Oct.

7,

 1992)

 Revision of testing and

monitoring requirements.

PUBLIC COMMENTS

The Board received public comment on the May 20,

1993

proposal for a period of 45 days following its publication

 in the

Illinois Register.

 A Notice of Proposed Amendments

 for each

of

Parts 730 and 738 appeared in the Illinois Register on June 11,

1993,

 at 17 Ill.

 Reg.

 8428 and 8423.

 The Board received two

public comments on the proposal for public comment:

PC 1 Illinois Department of Commerce and Community Affairs

(DCCA),

 June

18,

1993

 (by Linda

D.

 Brand,

 Manager,

Regulatory Flexibility Unit)

2

PC

2

 Illinois Environmental Protection Agency, July 16,

1993

(by Susan

J.

 Schroeder, Associate Counsel, Division of

Legal Counsel)

By PC

 1, DCCA stated that it determined that the present

rulemaking will not negatively impact small business.

 By PC

2,

the Agency raised

 a substantive comment that we discuss later in

this opinion.

The Board will delay filing any adopted rules with the

Secretary of State for 30 days after adoption, particularly to

allow USEPA review.

 The complete text of the proposed amendments

follows the discussions of this opinion.

HISTORY OF RCRA, UST and UIC ADOPTION

AGENCY OR BOARD ACTION?

EDITORIAL CONVENTIONS

The Board has appended three routine discussions at the end

of this opinion.

 The first

 is a summary history of the Illinois

RCRA

and UIC programs.

 It lists all actions taken to adopt and

maintain these programs since their inceptions.

 It includes a

listing of all site-specific rulemaking and adjusted standards

proceedings filed that relate to these programs.

 It also lists

all USEPA program authorizations issued to date.

 The second is a

discussion of how the Board codifies requirements that call for

state determinations,

 such as for exemptions,

 exceptions,

 etc.

The third discussion relates to our use of language

 in the

codification of identical—in—substance rules.

 We intend these as

reference aids for interested persons in the regulated community.

DISCUSSION

The three federal actions that underlie this proceeding each

 have a distinct impact on the Illinois UIC regulations.

 This

discussion focuses on each by subject matter and the Illinois

Section impacted.

Casing Inspection Logs——Section 730.168(d) (4)

At 57

 Fed. Reg.

46294

 (Oct.

7,

 1992),

 USEPA amended

 40 CFR

146.68(d) (4), which corresponds with 35

 Ill.

 Adm. Code

730.168(d) (4)

 in the Illinois regulations.

 This section sets

forth the requirements for owners or operators of Class

I

hazardous waste injection wells to test the mechanical integrity

of their wells

 by running casing inspection

 logs.

 Formerly,

USEPA required these tests every five years.

 The Director could

waive the requirement

 if factors indicated that the results of

running the logs would prove unreliable.

 As a result of

a

partial settlement of litigation,

 in NRDC v.

 EPA,

No.

 88-1657

(D.C. Cir.), USEPA amended these requirements to generally allow

the owner or operator to perform the tests

 as part of

 a routine

3

well workover in which the injection string

 is pulled.

The

federal rule allows the Director of USEPA to waive the

requirement base’ on the unreliability based on factors relating

to the well.

 USEPA further added the condition that the Director

 could waive the requirement based on consideration of

satisfactory results from a log run within the last five years.

It also allows the Director to require an owner or operator to

run these logs every five years if there is reason to believe

that the integrity of the long string casing of the well may be

adversely affected by naturally-occurring or man-made events.

The Board amendments follow the federal amendments very

closely.

 We allowed the Agency to require the testing, either

during routine workovers or every five years,

 by permit

condition.

 The Agency’s determinations are based on

consideration of the same factors as are enunciated

 in the

federal rule.

 However,

 for greater clarity,

 the Board subdivided

this subsection into smaller subsections.

 Subsection

 (d) (1)

provides for running the logs during routine workovers,

and

subsection

 (d) (2) provides for running them every five years.

Subsection

 (d) (1)

 is further subdivided into two subsections so

that the two bases for waiving the requirements stand out

distinctly.

A deviation from the federal language appears in subsection

(d) (2).

 USEPA provided that the Director could require the five-

year testing “if he has reason to believe” there were adverse

effects on the well casing.

 The Board has required the Agency to

“determine that it has reason to believe” there were effects.

We

 made this change because Illinois administrative law requires the

Agency to act on established standards.

 Granite City

Division of National Steel Co.

 v. PCB

 (Apr.

15,

 1993)

No.

72850

(slip op.).

 We believe that requiring the Agency to make

a

formal determination that there is reason to believe will satisfy

this requirement.

 We do not feel free to delete the federal

“reason to believe” language due to our experience in another

federal identical-in-substance program.

 See R91-3,

 SDWA Update,

PC 12—PC 15.

 If the Board were to have deleted this language,

the Agency would only have been able to require the five—year

testing

 if it determines that the effect had indeed occurred.

This would have rendered the Illinois rules less stringent than

the federal regulations.

The Board invited public comment on its approach to Section

730.168(d)(4).

 We received no comments

 in response.

 We construe

this silence as tacit approval of the approach taken.

Relaxation

 of Prohibition

 of Land Disposal

 of Diluted Wastes——

Section 738.101(d)

USEPA amended

 40 CFR 148.1(d)

 at 57

 Fed. Reg.

31963

 (July

20,

 1992).

 This corresponds with

35

 Ill.

 Adm.

 Code 738.101(d)

in

4

the Illinois UIC regulations.

 The effect of the federal

amendment is to allow the injection of diluted wastes that no

longer exhibit any charactecistic of hazardous wastes into Class

I hazardous waste injection wells.

 Formerly, USEPA amended this

provision to allow the injection into Class

 I nonhazardous waste

injection wells.

 The Board adopted the previous amendments in

docket R92-13.

 In that docket we noted that the federal action

was the subject of federal litigation in Chemical Waste

Management.

 Inc.

v.

 EPA (1992),

 976 F.2d

2

 (D.C.

 Cir.).

 We noted

that we are constrained to follow the language of the federal

regulations notwithstanding the federal litigation until USEPA

follows the court’s mandate and amends or repeals its rule.

We

added our usual Board Note indicating the federal litigation and

noting that the rule may be unenforceable as a result.

USEPA issued an interim final rule at 58

 Fed. Reg.

 29860,

on

May

24,

 1993,

 that responded to the Chemical Waste Management

court’s mandate.

 The amendments involved did not include 40 CFR

148.1.

 Since the proposal for public comment, the Board has

added a statement in the Board Note to Section 738.101(d) that

indicates this federal action.

In amending Section 738.101(d),

 the Board followed the

federal amendments.

 We again highlight the earlier discussion of

the federal litigation and the Board Note that mentions its

possible effect on the rule.

 We felt constrained to follow the

USEPA regulatory lead

 in this matter.

In adapting the federal requirements to the Illinois

regulations,

 the Board deviated from the federal structure.

The

federal rule

 is divided into two paragraphs,

 so that paragraph

(d) (1)

 relates to Class

 I nonhazardous waste injection wells and

paragraph

 (d) (2)

 relates to Class

 I hazardous waste injection

wells.

 In R92-l3,

 the Board had already divided this provision

to highlight the two elements:

(1)

 Class

 I nonhazardous

injection well and

 (2) exhibiting no hazardous characteristic.

Since federal paragraph

 (d) (2)

 recites essentially the same

thing,

 except that it relates only to Class

 I hazardous waste

injection wells

 (and reverses the order of the two elements),

we

decided not to make this provision more convoluted by further

subdivision.

 Subsection

 (d) combines both the hazardous and

nonhazardous waste wells

 so that subsection

 (d) (1) recites Class

I hazardous waste injection wells and Class

 I nonhazardous waste

 injection wells and subsection

 (d) (2)

 recites the no hazardous

characteristic requirement.

 We added the “Class I” reference for

clarity because this

 is the type of well defined at

35

 Ill.

 Adrn.

Code 704.106(a)

 (corresponding to 40 CFR 144.6(a)).

The Board invited public comment on our approach to Section

738.101(d).

 Agency PC

 2 states

 in full that “Proposed Section

738.101(d)

 of the IPCB’s rules

 is not identical to Section

 148.1

of the Federal Register, Volume

57,

N.

 139, dated July 20,

 1992,

5

page 31963.”

 The Board conceded this

 in the opinion discussion

that acr~mpaniedthe proposal for public comment.

 Rather than

reiterate duplicative federal language,

 the Board consolidated

two federal requirements.

 The object in Section 7.2 proceedings

is not

 “identical” language, but provisions that are “identical

in substance” to the federal requirments.

 The Board believes

that since the text of Section 738.101(d) contains substantive

aspects that are identical to the substance of what is required

by USEPA, we have fulfilled our mandate.

 However, we did revise

the proposed language in response to PC

2.

Re—examination of the federal language reveals that a clause

 was omitted from the text of the proposed rule.

 The federal

exception as to hazardous waste injection wells extends only to

those wells “that receive only non—prohibited hazardous wastes”.

The Board restores these qualifying words to subsection

 (d) (1).

We intend that these words apply to Class

 I hazardous waste

injection wells, but not to Class

 I ~~-hazardous

 waste injection

wells.

Prohibitions on Inlection of Newly—Listed Wastes——Section 738.117

USEPA added 40 CFR 148.17 at 57

 Fed.

 Reg.

37263

 (Aug.

18,

1992).

 This new provision is part of the broader rulemaking that

imposed land disposal restrictions for newly listed wastes as

part of the RCRA program.

 The RCRA aspects of these “land-bans”

is the subject of RCRA update docket R93-4.

 The federal UIC-only

regulation is divided into three subsections.

 Subsection

 (a),

listing 19 wastes,

 includes a prohibition and was effective

November 9,

 1992.

 Subsection

 (b), which lists four additional

wastes,

 includes a prohibition and will become effective on June

30,

 1995.

 Subsection

(c)

 lists the typical three conditions

under which the prohibitions do not apply:

(1)

 the wastes meet

the 40 CFR 268,

 Subpart D treatment standards

 (corresponding to

35 Ill. Adm. Code 728.Subpart D),

(2)

 the wastes are the subject

of an exemption from

 a prohibition

 (corresponding with an

adjusted standard from

 a prohibition),

or

(3)

 if an extension of

the effective date

 is granted pursuant to

 40 CFR 148.4

(corresponding to 35

 Ill. Adm. Code 738.104).

In adopting the federal requirements to the Illinois UIC

regulations, the Board followed the federal rules nearly exactly.

We reformatted subsections

(a)

and

(b)

 to list the wastes

individually.

 We further kept with our routine practice and

deleted the past effective date of subsection

 (a).

 The Board

corrected the date of proposed updated citation to the Federal

Register source of the federal amendments to 1992.

The Board invited public comments

 on our approach to Section

738.117.

 We received no comments

 in response.

 We construe this

silence as tacit approval of the approach taken.

6

HISTORY

RCRA,

UST

and

UIC

ADOPTION

The Illinois

 JIC (Underground Injection Contr’l),

RCRA

(Resource Conservation and Recovery Act),

 and UST (Underground

Storage Tank)

 regulations, together with more stringent state

regulations particularly applicable to hazardous waste,

 include

the following Parts of Title 35 of the Illinois Administrative

Code:

702

 RCRA and UIC Permit Programs

703

 RCRA Permit Program

704

 UIC Permit Program

705

 Procedures for Permit Issuance

709

 Wastestream Authorizations

720

 General

721

 Identification and Listing

722

 Generator Standards

723

 Transporter Standards

724

 Final TSD Standards

725

 Interim Status TSD Standards

726

 Specific Wastes and Management Facilities

728

 USEPA Land Disposal Restrictions

729

 Landfills:

 Prohibited Wastes

730

 UIC Operating Requirements

731

 Underground Storage Tanks

738

 Hazardous Waste Injection Restrictions

Special provisions for RCRA cases are included in Parts

 102,

103,

 104 and 106 of the Board’s procedural rules.

History of RCRA and State Hazardous Waste Rules Adoption

The Board has adopted and amended the Resource Conservation

and Recovery Act

 (RCRA)

 hazardous waste rules in several dockets.

Dockets R81-22 and R82-l8 dockets dealt with the Phase

 I RCRA

regulations.

 USEPA granted Illinois Phase

 I authorization on May

17,

 1982, at 47

 Fed.

 Reg.

 21043.

 The Board adopted RCRA Phase

II

regulations

 in Parts 703

 and 724

 in dockets R82-l9 and R83—24.

USEPA granted final authorization of the Illinois RCRA “base

program” on January 31,

 1986,

 at 51

 Fed. Reg.

 3778 (January 30,

1986).

 USEPA granted authorization to “Cluster

 I revisions” to

the Illinois program and granted partial Hazardous and Solid

Waste Amendments

 (HSWA)

 (Pub.

L.

 98-616, Nov.

8,

 1984)

authorization effective March

5,

 1988,

at

53

 Fed.

 Reg.

126

(January

5,

 1988).

 USEPA authorized certain subsequent

amendments and granted further partial HSWA authorizations

effective April

30,

 1990, at 55

 Fed.

 Reg. 7320

 (March

1,

 1990),

and June

3,

 1991,

at

56

 Fed.

 Reg.

13595

 (April

3,

 1991).

 USEPA

codified its approvals of the Illinois program at 40 CFR 272.700

and 272.701 on November

13,

 1989,

at

54

 Fed. Reg.

37649

 (Sep.

12,

1989),

 and on March

31,

 1992,

at

 57 Fed.

 Reg.

3731

 (Jan.

31,

1992).

 The entire listing of all

RCRA

 identical

 in substance

7

rulemakings follows

 (with the period of corresponding federal

revisions indicated in parentheses):

R81—22

 45 PCB

 317, September

16,

1981

 & February

4,

 1982;

6

 Ill. Reg.

 4828, April

23,

 1982,

 effective May

17,

 1982.

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

R82—18

 51 PCB 31, January

13,

 1983;

7

 Ill. Reg.

 2518,

March

4,

 1983,

 effective May 17,

 1982.

 (11/11/81

through 6/24/82)

R82—19

 53 PCB

 131, July 26,

 1983,

 7 Ill.

 Reg.

 13999,

October 28,

 1983, effective October

2,

 1983.

(11/23/81 through 10/29/82)

R83—24

 55 PCB 31, December

15,

 1983,

8

 Ill. Reg.

 200,

January

6,

 1984,

 effective December 27,

 1983.

(Corrections to R82—l9)

R84—9

 64 PCB 427

&

 521, June 13

 & 27,

 1985;

9

 Ill.

 Reg.

11964, August

2,

 1985,

 effective July

8

 & 24,

1985.

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

R85—22

 67 PCB 175,

 479, December

20,

 1985 and January

9,

1986;

 10 Ill.

 Reg.

 968, January

 17.,

 1986,

effective January 2,

 1986.

 (4/25/84 through

6/30/85)

R86—l

 71 PCB 110, July

11,

 1986;

 10 Ill.

 Reg.

 13998,

August

22,

 1986,

 effective August

12,

 1986.

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

R86—l9

 73 PCB 467, October 23,

 1986;

10

 Ill. Reg.

 20630,

December 12,

 1986,

 effective December

2,

 1986.

(2/1/86 through 3/31/86)

R86—28

 75 PCB 306,

 February

5,

 1987; and 76 PCB 195,

March

5,

 1987;

 11 Ill.

 Reg.

 6017,

 April

3,

 1987,

effective March 23,

 1987.

 Correction at

 77 PCB

235, April

16,

 1987;

11

 Ill.

Reg.

 8684,

May

1,

1987,

 effective April

21,

 1987.

 (4/1/86 through

6/3 0/86)

R86—46

 79 PCB 676, July 16,

 1987;

11

 Ill.

 Reg.

 13435,

August

14,

 1987,

 effective August

4,

 1987.

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

R87—5

 82 PCB 391, October 15,

 1987;

11

 Ill. Reg.

 19280,

November

30,

 1987,

 effective November 10

&

12,

1987.

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

R87—26

 84 PCB 491, December

3,

 1987;

12

 Ill. Reg.

 2450,

8

January 29,

 1988,

 effective January

15,

 1988.

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

R87—32

 Correction to R86—1;

 81 PCB 163, September

4,

1987;

11

 Ill. Reg.

 16698, October 16,

 1987,

effective September

30,

 1987.

R87—39

 90 PCB 267, June

16,

 1988;

 12 Ill.

 Reg.

 12999,

August 12,

 1988,

 effective July 29,

 1988.

 (7/1/87

through 12/31/87)

R88—16

 93 PCB 513, November 17,

 1988;

13

 Ill.

 Reg.

 447,

January 13,

 1989, effective December 28,

 1988.

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

R89—1

 103 PCB 179, September 13,

 1989;

13

 Ill.

 Reg.

18278, November 27,

 1989,

 effective November 13,

1989.

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

R89—9

 109 PCB 343, March

8,

 1990;

14

 Ill.

 Reg.

 6225,

April

27,

 1990,

 effective April

16,

 1990.

 (1/1/89

through 6/30/89)

R90—2

 113 PCB 131,

 July

3,

 1990;

14

 Ill. Reg.

 14401,

September

7,

 1990,

 effective August 22,

 1990.

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

R90-ll

 121 PCB 97, April

11,

 1991; corrected at

 122 PCB

305, May 23,

 1991; corrected at 125 PCB 117,

August

8,

 1991; uncorrected at 125 PCB 435, August

22,

 1991;

15

 Ill..

 Reg.

 9323,

 effective June 17,

1991.

 (Third Third Land Disposal Restrictions)

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

R90-17

 Delisting Procedures

 (See below)

R9l—l

 125 PCB 119, August

8,

 1991;

15

 Ill.

 Reg.

 14446,

effective September

30,

 1991.

 (Wood Preserving

Rules)

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

R9l—13

 132 PCB 263, April

9,

 1992;

16

 Ill. Reg.

 9489,

effective June

9,

 1992.

 (Boilers and Industrial

Furnaces

 (BIF5)

 Rules)

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

R91—26

 129 PCB 235, January

9,

 1992;

16

 Ill.

 Reg.

 2600,

effective February

3,

 1992.

 (Wood Preserving

Rules Compliance Dates)

R92—l

 September

17,

 1992;

16

 Ill.

 Reg.

 17636, effective

November

6,

 1992.

 (7/1/91 through 12/31/91)

R92—10

 January

21,

 1993;

17

 Ill.

 Reg.

 5625,

 effective

9

March

26,

 1993.

 (Leak Detection Systems

 (LDS)

Rules)

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

R93—4

 Next RCRA Docket; May 27,

 1993 proposal for public

comment

 (June 25,

 1993,

17

 Ill.

 Reg.

 9170,

 9193,

9245,

 9317,

 9417,

 9445,

 9453,

 9528,

 & 9588).

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

On September

6,

 1984,

 the Third District Appellate Court

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

(Commonwealth Edison Co.

v.

 PCB,

 127 Ill.

 App.

 3d 446; 468 N.E.2d

1339

 (3d Dist.

 1984).)

The Board added to the federal listings of hazardous waste

by listing dioxins pursuant to Section 22.4(d)

 of the Act:

R84—34

 61 PCB 247, November 21,

 1984;

8

 Ill. Reg.

 24562,

December 21,

 1984, effective December 11,

 1984.

This was repealed by R85-22,

 which included adoption of

USEPA’s dioxin listings.

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

85—1048, effective January

1,

 1989.

The Board has adopted USEPA delistings at the request of

Amoco and Envirite

 (the date of the corresponding federal action

is included in parentheses):

R85—2

 69 PCB 314, April 24,

 1986;

10

 Ill. Reg.

 8112, May

16,

 1986,

 effective May 2,

 1986.

 (9/13/85)

R87—30

 90 PCB 665,

 June 30,

 1988;

 12 Ill.

 Reg.

 12070,

July 22,

 1988,

 effective July 12,

 1988.

(11/14/86)

R91—l2

 128 PCB 369, December 19,

 1991;

16

 Ill. Reg.

 2155,

effective January 27,

 1992.

 (USX)

Subsequently, upon the April

 30, 1990 federal authorization

of Illinois granting waste delistings,

 USEPA transferred pending

delisting petitions to the Board.

 The Board docketed these

as

site—specific rulemaking proceedings

 (the name of the petitioner

waste generator appears

 in parentheses):

R90-18

 Dismissed at 123 PCB 65, June

6,

 1991.

 (USX Corp,

South Works)

R90—19

 Dismissed at 116 PCB 199, November

8,

 1990.

(Woodward Governor Co.)

R90—23

 Dismissed at 124 PCB

 149,

 July

11,

 1991.

(Keystone Steel

 & Wire Co.)

10

The Board has modified the delisting procedures to allow the

use of adjusted standards

 in lieu of site—specific rulemakings:

R90—l7

 119 PCB 181,

 February

28,

 1991;

 15 Ill.

 Reg.

 7934,

effective May 9,

 1991..

Waste generators have filed Part 106 adjusted standards

petitions for solid waste determinations with the Board pursuant

to Section 720.130 (generator name

 in parentheses):

AS89—4

 Dismissed at 105 PCB 269, November 15,

 1989.

(Safety-Kleen Corp.)

AS89—5

 Dismissed at 113 PCB 111,

 July

3,

 1990.

 (Safety—

Kleen Corp.)

AS9O—7

 Dismissed at

 124 PCB 125,

 July 11,

 1991.

 (Quantum

Chemical Co.)

The Board has granted hazardous waste delistings by way of

adjusted standards

 (generator name in parentheses):

AS91—1

 130 PCB 113, February

6,

 1992.

 (Keystone Steel

and Wire Co.)

AS91—3

 February

4,

 1993; opinion issued March

11,

 1993.

(Peoria Disposal Co.)

The Board has procedures to be followed in cases before

it

involving the

RCRA

regulations:

R84—lO

 62 PCB 87,

 349, December

20,

 1984 and January

10,

1985;

9

 Ill.

 Reg.

 1383,

 effective January 16,

1985.

The Board also adopted special procedures to be followed in

certain determinations under Part

 106.

 The Board adopted these

Part 106 special procedures

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

listed above.

One Part 106 adjusted standard proceeding filed pursuant to

728.106 sought relief from a prohibition against land disposal

(petitioner’s name in parentheses):

AS9O-6

 Dismissed September

17,

 1992.

 (Marathon Petroleum

Co.)

Other adjusted standard proceedings sought delayed closure

of land disposal units

 (petitioners’ names

 in parentheses)

AS9O—8

 130 PCB 349, February

27,

 1992.

 (Olin Corp.)

11

AS91—4

 131 PCB 43, March

11,

 1992.

 (Amoco Oil Co.)

Still another adjusted standard proceeding relates to

substantive physical requirements

 of the RCRA regulations:

AS91-10

 Presently pending.

 (Cabot Corp.)

In another regulatory proceeding,

 the Board has considered

granting temporary relief from the termination of an exclusion of

a hazardous waste listing

 in the form of an emergency rule

(Petitioner’s name

 in parentheses):

R91-11

 Presently pending.

 (Big River Zinc Corp.)

The Board has also adopted requirements limiting and

restricting the landfilling of liquid hazardous wastes,

 hazardous

wastes containing halogenated compounds,

 and hazardous wastes

generally:

R8l—25

 60 PCB 381,

 October 25,

 1984;

8

 Ill. Reg.

 24124,

December 14,

 1984,

 effective December 4,

 1984.

R83—28

 68 PCB 295, February 26,

 1986;

 10 Ill.

 Reg.

 4875,

March 21,

 1986,

 effective March

7,

 1986.

R86-9

 Emergency regulations adopted at 73 PCB 427,

October 23,

 1986;

10

 Ill.

 Reg.

 19787, November 21,

1986,

 effective November

5,

 1986.

The Board’s action

 in adopting emergency regulations

 in R86-

9 was reversed by the First District Court

 of Appeals.

 (Citizens

for a Better Environment v.

 PCB,

 152 Ill.

 App.

 3d 105,

 504 N.E.2d

166

 (1st Dist.

 1987).)

History of UIC Rules Adoption

The Board has adopted and amended Underground Injection

Control

 (UIC)

 regulations in several dockets to correspond with

the federal regulations.

 One such docket, R82-l8, was a RCRA

docket.

 USEPA authorized the Illinois UIC program on February

1,

1984,

 at 49

 Fed. Reg.

 3991.

 The entire listing of all UIC

rulemakings follows

 (with the period of corresponding federal

revisions indicated in parentheses):

R8l—32

 47 PCB 93, May 13,

 1982;

 6 Ill.

 Reg.

 12479,

October

15,

 1982, effective February

1,

 1984.

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

R82—18

 51 PCB 31, January 13,

 1983;

7

 Ill.

 Reg.

 2518,

March

4,

 1983,

 effective May 17,

 1982.

 (11/11/81

through 6/24/82)

12

R83—39

 55 PCB 319, December

15,

 1983;

 7 Ill.

 Reg.

 17338,

December 20,

 1983,

 effective December

19,

 1983.

(4/1/83)

R85—23

 70 PCB 311 &

 71 PCB 108, June

20

 & July 11,

 1986;

10 Ill.

 Reg.

 13274, August 8,

 1986,

 effective July

28

&

29,

 1986.

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

R86—27

 Dismissed at

 77 PCB 234, April

16,

 1987.

(No

USEPA amendments through 12/31/86).

R87—29

 85 PCB 307, January 21,

 1988;

 12 Ill.

 Reg.

 6673,

April

8,

 1988,

 effective March 28,

 1988.

 (1/1/87

through 6/30/87)

R88—2

 90 PCB 679, June 30,

 1988;

12

 Ill. Reg.

 13700,

August 26,

 1988,

 effective August 16,

 1988.

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

R88—17

 94 PCB 227, December 15,

 1988;

13

 Ill.

 Reg.

 478,

January 13,

 1989,

 effective December

30,

 1988.

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

R89—2

 107 PCB 369, January 25,

 1990;

14

 Ill.

 Reg.

 3059,

March 2,

 1990,

 effective February

20,

 1990.

(7/1/88 through

 12/31/88)

R89—11

 111 PCB 489, May 24,

 1990;

14

 Ill. Reg.

 11948,

July 20,

 1990,

 effective July

9,

 1990.

 (1/1/89

through 11/30/89)

R90—5

 Dismissed at 109 PCB 627, March 22,

 1990.

(No

USEPA amendments

 12/1/89 through 12/31/89)

R90—14

 122 PCB 335, May 23,

 1991;

15

Ill.

 Reg.

 11425,

effective July 24,

 1991.

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

R91—4

 Dismissed at 119 PCB 219,

 February 28,

 1991.

(No

USEPA amendments 9/1/90 through 12/31/90)

R9l-l6

 Dismissed at 128 PCB 229, December

6,

 1991.

(No

USEPA amendments 1/1/90 through 6/30/91)

R92—4

 Dismissed at 133 PCB 107, April

9,

 1992.

(No

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

R92—13

 February

4,

 1993;

17

 Ill.

 Reg.

 6190,

 effective

April

5,

 1993.

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

R93-6

 This Docket; May 20,

 1993 proposal for public

comment

 (June

11,

 1993,

at

17

 Ill.

 Reg.

8428

and

8423).

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

In one proceeding filed,

 a petitioner seeks an adjusted

standard from

 a UIC land disposal restriction, pursuant to the

procedures outlined .~bovewith respect to the

RCRA

program

(petitioner name

 in parentheses):

R92-8

 Presently pending.

 (Cabot Corp.)

AGENCY OR BOARD ACTION?

Section 7.2(a)(5)

 of the Act requires the Board to specify

which decisions USEPA will retain.

 In addition, the Board is to

specify which State agency is to make decisions,

 based on the

general division of functions within the Act and other Illinois

statutes.

In situations in which the Board has determined that USEPA

will retain decision-making authority,

 the Board has replaced

“Regional Administrator” with USEPA,

 so as to avoid specifying

which office within USEPA is to make a decision.

In a few instances in identical

 in substance rules,

decisions are not appropriate for Agency action pursuant to a

permit application.

 Among the considerations

 in determining the

general division of authority between the Agency and the Board

are:

1.

 Is the person making the decision applying a Board

regulation,

 or taking action contrary to

 (“waiving”)

 a Board

regulation?

 It generally takes some form of Board action to

“waive”

 a Board regulation.

2.

 Is there a clear standard for action such that the

Board can give meaningful review to an Agency decision?

3.

 Does the action result

 in exemption from the permit

requirement itself?

 If so, Board action

 is generally

required.

4.

 Does the decision amount to “determining, defining or

implementing environmental control standards” within the

 meaning of Section 5(b)

 of the Act.

 If so,

 it must be made

by the Board.

There are four common classes of Board decision:

 variance,

adjusted standard,

 site specific rulemaking, and enforcement.

The first three are methods by which

 a regulation can be

temporarily postponed

 (variance)

 or adjusted to meet specific

situations

 (adjusted standard or site specific rulemaking)

 Note

that there often are differences

 in the nomenclature

 for these

decisions between the USEPA and Board regulations.

14

EDITORIAL CONVENTIONS

As a final note,

 the federal rules have been edited to

establish a uniform usage throughout the Board’s regulations.

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

—

 “shall”

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

“Must”

 is used when someone has to do something,

 but that someone

is not the subject of the sentence.

 “Will”

 is used when the

Board obliges itself to do something.

 “May”

 is used when choice

of a provision

 is optional.

 “Or”

 is used rather than “and/or”,

and denotes “one or both”.

 “Either”... “or” denotes “one but not

both”.

“And”

denotes

“both”.

ORDER

The

Board

 hereby proposes the following amendments to the

Illinois

UIC

regulations

 at Sections 730.168,

738.101,

and

738.117.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

WASTE

 DISPOSAL

CHAPTER

 POLLUTION CONTROL BOARD

SUBCHAPTER

UNDERGROUND

INJECTION

 CONTROL AND UNDERGROUND

STORAGE

TANK

PROGRAMS

PART

730

UNDERGROUND

INJECTION

 CONTROL OPERATING REQUIREMENTS

SUBPART

GENERAL

Section

730.101

Applicability,

Scope

and

 Effective Date

730.102

Laws

Authorizing

Regulations

730.103

 Definitions

730.104

 Criteria for Exempted Aquifers

730.105

 Classification of Injection Wells

730.106

Area

Review

730.107

 Corrective Action

730.108

 Mechanical Integrity

730.109

 Criteria for Establishing Permitting Priorities

730.110

 Plugging and Abandoning Class

 I and III Wells

SUBPART

B:

 CRITERIA

AND

STANDARDS APPLICABLE

TO CLASS

 I NON-HAZARDOUS WELLS

Section

730.111

 Applicability

730.112

 Construction Requirements

730.113

 Operating, Monitoring and Reporting Requirements

730.114

 Information to be Considered by Agency

SUBPART C:

 CRITERIA AND STANDARDS APPLICABLE

TO CLASS

 II WELLS

Section

15

730.121

 Adoption of Criteria and Standards Applicable to Class

II Wells by the Illinois Department of Mines and

nerais

SUBPART

D:

 CRITERIA

AND

STANDARDS APPLICABLE

TO CLASS III WELLS

Section

730.131

 Applicability

730.132

 Construction Requirements

730.133

 Operating, Monitoring and Reporting Requirements

730.134

 Information to be Considered by the Agency

SUBPART F:

 CRITERIA AND STANDARDS APPLICABLE

TO CLASS V INJECTION WELLS

Applicability

Inventory and Assessment

SUBPART G:

 CRITERIA

AND

STANDARDS APPLICABLE TO CLASS

I

HAZARDOUS WELLS

Applicability and Definitions

Minimum Criteria for Siting

Area of Review

Correction Action for Wells

 in the Area of Review

Construction Requirements

Logging, Sampling and Testing Prior to New Well

 Operation

Operating Requirements

Testing and Monitoring Requirements

Reporting Requirements

Information to be Evaluated by the Director

Closure

Post—Closure

Care

Financial Responsibility for Post—Closure Care

AUTHORITY:

 Implementing Sections

 13 and 22.4 and authorized by

Section 27 of the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

1987 and 1988 Supp.

 ch. 111 1/2,

 pars.

 1013, 1022.4 and 1027).

SOURCE:

 Adopted in R8l-32,

 47 PCB 93,

at

6

 Ill.

 Reg.

 12,479,

effective as, noted in

 35 Ill.

 Adm.

 Code 700.106; amended in R82-

19,

 53 PCB 131 at

7

 Ill. Reg.

 14426 effective as noted

 in 35

 Ill.

Adm.

 Code 700.106; recodifled at 10 Ill.

 Beg.

 14174; amended in

R89-2 at 14

 Ill. Reg.

 3130,

 effective February 20,

 1990;

 amended

Section

730.151

730.152

Section

730.161

730. 162

730. 163

730.164

730. 165

730.166

730.167

730.168

730.169

730. 170

730.

171

730.

172

730. 173

in R89—ll at

14

 Ill. Reg

effective

16

SUBPART G:

 CRITERIA AND STANDARDS APPLICABLE TO CLASS I

HAZARDOUS WELLS

Section 730.168

 Testing and Monitoring Requirements

Testing and monitoring requirements shall at a minimum include:

a)

 Monitoring of the injected wastes.

1)

 The owner or operator shall develop and follow an

approved written waste analysis plan that

describes the procedures to be carried out to

obtain a detailed chemical and physical analysis

of

 a representative sample of the waste, including

the quality assurance procedures used.

 At a

minimum, the plan shall specify:

A)

 The parameters for which the waste will be

analyzed and the rationale for the selection

of these parameters;

B)

 The test methods that will be used to test

for these parameters; and

C)

 The sampling method that will be used to

obtain a representative sample of the waste

to be analyzed.

2)

 The owner or operator shall repeat the analysis of

the injected wastes as described

 in the waste

analysis plan at frequencies specified

 in the

waste analysis plan and when process or operating

changes

occur

 that may significantly alter the

characteristics

the

 waste stream.

3)

The

owner

 operator shall conduct continuous

or

periodic monitoring of selected parameters as

required by permit condition.

The

owner

operator

shall

assure

that

the

plan

remains

accurate

and

 the analyses remain

representative.

Hydrogeologic

compatibility

determination.

The

owner

operator

shall

submit

information

demonstrating

that

the

wastestream

and

 its anticipated reaction products

will

not

alter

the

permeability,

thickness

other

relevant

characteristics

the

confining

injection

zones

such

that

they

would

longer

meet

the

requirements

specified

Section

730.162.

Compatibility

well

materials.

17

1)

 The owner or operator shall demonstrate that the

waste stream will be compatible with the well

materials with which the waste

 is expected to come

 into contact, and submit to the Agency a

description of the methodology used to make that

determination.

 Compatibility for the purposes of

this requirement

 is established

 if contact with

injected

fluids

will

not

cause

the

well

materials

fail

satisfy

any

design

requirement

imposed

under

Section

730.165(b)

The

Agency

shall

require

continuous

corrosion

monitoring of the construction materials used

in

the well for wells injecting corrosive waste, and

may

require

such

monitoring

for

other

wastes,

by:

Placing

coupons

 of the well construction

materials in contact with the waste stream;

or

B)

Routing

the

 waste stream through a loop

constructed with the material used

 in the

well;

or

C)

 Using an alternative method approved by

permit condition.

3)

 If a corrosion monitoring program is required:

A)

 The test must use materials identical to

those used in the construction of the well,

and such materials must be continuously

exposed to the operating pressures and

 temperatures

 (measured at the well head)

and

flow rates of the injection operation; and

B)

 The owner or operator shall monitor the

materials

for

 loss of mass,

 thickness,

cracking,

 pitting and other

signs

corrosion on

 a quarterly basis to ensure that

the well components meet the minimum

standards

for

material

strength

and

performance set forth in Section 730.165(b).

d)

 Periodic mechanical integrity testing.

 In fulfilling

the requirements of Section 730.108,

the

owner

or

operator of

 a Class

 I hazardous waste injection well

shall conduct the mechanical integrity testing as

follows:

1)

 The long string casing,

 injection tube,

and

annular seal must be tested

by

means of

an

18

approved pressure test with a liquid or gas

annually and whenever there has been

 a well

workover;

The

bottom-hole

cement

must

tested

means

of

approved

radioactive

tracer

survey

annually;

approved

temperature,

noise,

 or other approved

log

must

run

 at least once every five years to

test for movement of fluid along the borehole.

The Agency may require such tests whenever the

well

 is worked over;

4)

 Running casing inspection logs.

~j

 Casing inspection logs must be run

 cit lca~t

once

every

 five ycarswhenever the owner or

operator

conducts

workover

 in which the

iniection string is pulled,

 unless the Agency

~ypermit

spccific~ailows

otherwise~

jj.

 due to well construction

 other

factors whichthat limit the test’s

reliability,

.jJJ

 based

 on the satisfactory results of a

casing

inspection

log

run

within

the

previous five years.

~j.

 The A~encvmay require by permit that the

owner or operator run a casing inspection log

if it determines that

 it has reason to

believe that the integrity of the long string

casing of the well may be adversely affected

by naturally—occurring or man—made events

and

5)

Any

other

test

specified

permit

condition

accordance with the procedures

 in Section

730.108(d)

 may also be used.

e)

 Ambient Monitoring.

1)

 Based on a site—specific assessment

 of the

potential for fluid movement from the well or

injection

 zone,

 and on the potential value of

monitoring wells to detect such movement,

the

Agency shall require the owner or operator to

develop a monitoring program.

 At a minimum, the

Agency shall require monitoring of the pressure

buildup in the injection zone annually,

 including

at a minimum,

 a shut down of the well for

 a time

19

sufficient to conduct

 a valid observation of the

pressure fall-off curve.

2)

 When prescribing a monitoring system the Agency

may also require:

A)

 Continuous monitoring for pressure changes

in

the first aquifer overlying the confining

zone.

 When such

 a well is installed,

the

owner or operator shall, on a quarterly

basis, sample the aquifer and analyze for

constituents specified by permit condition;

B)

 The use of indirect,

 geophysical techniques

to determine the position of the waste front,

the water quality in a formation designated

 by permit condition,

 or to provide other

site—specific data;

C)

 Periodic monitoring of the groundwater

quality in the first aquifer overlying the

injection zone;

D)

 Periodic monitoring

 of the ground water

quality in the lowermost USDW;

E)

 Any additional monitoring necessary to

determine whether fluids are moving into or

between

USDWs;

and

F)

 The Agency may require seismicity monitoring

when it has reason to believe that the

injection activity may have the capacity to

cause seismic disturbances.

BOARD NOTE:

 Derived from 40 CFR 146.68

11992),

 as admended at 53~Fed. Beg.

281-8-146294, July 26Qctober

7,

 l9&8-22.

(Source:

 Amended at

17

 Iii. Reg.

_________,

 effective

___________

 1993)

20

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

 WASTE DISPOSAL

CHAPTER

 POLLUTION CONTROL BOARD

SUBCHAPTER

d:

 UNDERGROUND INJECTION CONTROL AND UNDERGROUND

STORAGE TANK PROGRAMS

PART 738

HAZARDOUS WASTE INJECTION RESTRICTIONS

SUBPART A:

 GENERAL

Purpose Scope and Applicability

 Definitions

Dilution Prohibited as a Substitute for Treatment

Case-by—Case Extensions of an Effective Date

Waste Analysis

SUBPART

B:

 PROHIBITIONS ON INJECTION

Section

738.110

 Waste

738.111

 Waste

738.112

 Waste

738.114

 Waste

738.115

 Waste

738.116

 Waste

148.117

 Waste.___~~_~

SUBPART

PETITION

STANDARDS

AND

PROCEDURES

Section

738.120

 Petitions to Allow Injection of

 a Prohibited Waste

738.121

 Required Information to Support Petitions

738.122

 Submission,

 Review and Approval or Denial of Petitions

738.123

 Review of Adjusted Standards

738.124

 Termination of Adjusted Standards

AUTHORITY:

 Implementing Section 13 and 22.4 and authorized by

Section 27 of the Environmental Protection Act

 (Ill.

 Rev.

 Stat.

1991,

ch.

 111 1/2, pars.

 1013,

 1022.4 and 1027)

415

 ILCS 5/13,

22.4 and 27).

SOURCE:

 Adopted in R89-2

 at 14

 Ill. Beg.

 3059,

 effective

February 20,

 1990; amended in R89-11 at

14

 Ill.

 Reg.

 11948,

effective July 9,

 1990; amended in R90-14 at

 15 Ill.

 Beg.

 11425,

effective July 24,

 1991; amended in R92—13 at

17

 Ill.

 Reg.

 6190,

effective April

5,

 1993; amended in R93—6

at

17

 Ill. Req.

effective

 1993.

Section

738.101

738.102

738.103

738.104

738.105

Specific Prohibitions

 Solvent Wastes

Specific Prohibitions

 Dioxin-Containing Wastes

Specific Prohibitions

 California List Wastes

Specific Prohibitions

 First Third Wastes

Specific Prohibitions

 Second Third Wastes

Specific Prohibitions

 Third Third Wastes

So~cificProhibitions

—

 Newly-Listed Wastes

21

SUBPART

A:

 GENERAL

Seztion 738.101

 Purpose Scope and Applicability

a)

 This Part identifies hazardous wastes that are

restricted from disposal into Class

 I hazardous waste

injection wells and defines those circumstances under

which a waste,

 otherwise prohibited from injection, may

be injected.

b)

 The requirements of this Part apply to owners or

operators of Class

 I hazardous waste injection wells

used to inject hazardous waste.

c)

 Wastes otherwise prohibited from injection may continue

to be injected:

1)

 If an extension from the effective date of a

prohibition has been granted pursuant to Section

738.104; or

2)

 If an adjusted standard has been granted in

response to a petition filed under Section

738.120; or

3)

 If the waste is generated by a conditionally

exempt small quantity generator,

 as defined in

35

Ill.

 Adin. Code 721.105.

d)

 Wastes that are hazardous only because they exhibit a

hazardous characteristic,

 and which are otherwise

prohibited

 from injection under this Part,

 are not

prohibited

 from injection

 if the wastes:

Are

 disposed into a Class

 I nonhazardous waste

injection

well

or

 a Class

hazardous

waste

injection

well

that

 receives only non—prohibited

hazardous

wastes,

 as such are defined under

35

Ill.

Adm.

Code

730.106(a);

and

2)

 Do not exhibit any prohibited characteristic of

hazardous waste identified

in

35

 Ill. Adm.

 Code

721.Subpart C at the point of injection.

BOARD NOTE:

 The exemption for injection of

diluted hazardous waste

 in this subsection 4~was

the subject of pending litigation

 in Chemical

Waste Management et al.

v.

 USEPA,

 976 F.2d

2

 (D.C.

Cir.

 1992), decided September

25,

 1902,

 in the

U.S.

 Court

 of AppeQiG for the Diotrict of

Columbia.

 The USEPA response to the mandate

in

this

litigation

may

result

the

repeal

22

modification of 40 CFR 148.1(d),

 from which this

subsection is derived.

 USEPA responded to the

remand

 by issuing an interim final rule on May 24,

1993.

Fed.

Req.

 29860, but that action did

not_directly

affect

40’

CFR

148.1.

The

Board

 views

any federal court decision on the effectiveness or

enforceability

 of the USEPA rule as binding on

this subsection.

BOARD NOTE:

 Derived from 40 CFR 148.1

 (19932.),

as

amended at 57 Fed. Reg.

808831963

 (July 20, March

(Source:

 Amended at 17

 Ill.

 Beg.

_________,

 effective

__________,

 1993)

SUBPART

B:

 PROHIBITIONS ON INJECTION

Section 148.117

 Waste Specific Prohibitions

—

Newly-Listed

Wastes

The

wastes

specified

 in 35 Ill.

 Adm.

 Code 72l.Subpart D

by the following EPA Hazardous Waste numbers are

prohibited

 from underground inlection:

F037

F038

K107

1108

Kl09

KilO

Kill

1112

Kil7

K1l8

1123

1124

1125

Kl26

1131

1136

U328

U353

U359

~j

 Effective June

30,

 1995,

 the wastes specified

in

35

Ill.

 Adm.

 Code 72l.Subpart D by the following EPA

Hazardous Waste numbers are prohibited from underground

injection:

1117

23

K118

Kl3l

1132

~j

 The requirements of subsections

 (a) and

(b)

 above do

not apply:

j)..

 If the wastes meet or are treated to meet the

applicable standards specified in 35 Iii. Adm.

Code 728.Subpart

 D: or

2.1

 If an adiusted standard has been granted in

 response to

 a petition under Subpart C of this

Part;

or

fl

 During the period of extension of the applicable

effective date,

 if an extension is aranted under

Section 738.104.

BOARD NOTE:

 Derived from 40 CFR 148.17,

 as added

at 57 Fed.

 Req.

37263

 (Aug.

18,

 1992).

(Source:

 Added at 17

 Iii. Reg.

_________,

 effective

___________

 1993)

IT IS SO ORDERED.

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify t)iat the above opini

 and order was

adopted on the

~

 day of

1993, by a vote of

—

C

)~.

/~J

Dorothy M. Gu)~i, Clerk

Illinois Poll4tion Control Board