ILLINOIS POLLUTION CONTROL BOARD
April
9,
1992
IN THE MATTER OF:
)
)
UST UPDATE
)
R91-14
USEPA REGULATIONS
)
(Identical in
(1/1/91
—
6/30/91)
)
Substance
Rulemaking)
Adopted Rule.
Final Order.
OPINION OF THE BOARD
(by J. Anderson):
Pursuant to Section 22.4(d)
of the Environmental Protection
Act (Act), the Board is amending the liST underground storage tank
regulations in 35 Ill.
Adm. Code 731.
The Board is adopting a
separate Order on this same day.
This action will not be held
for the usual 30 day post—adoption period, as we believe it is
unnecessary.
Section 22.4 of the Act governs adoption of regulations
establishing the RCRA/UST program in Illinois.
Section 22.4(d)
provides for quick adoption of regulations which are “identical
in substance” to federal regulations.
Section 22.4(d) provides
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 UST rules are found at
40 CFR 280.
This rulemaking updates Illinois’ UST rules to
correspond with the following USEPA actions, during the period
January
1 through June 30,
1991:
56 Fed. Reg. 24, January 2,
1991.
56 Fed. Reg.
21603, Nay 10,
1991.
As is discussed below, P.A. 87-323 requires the Board to
repeal most of its UST rules,
including the Sections which would
have been affected by the few USEPA amendments.
This Update is
therefore driven entirely by the changes in statutory authority
in P.A. 87-323.
This results in the repeal of around 60 out of
75 pages in Part 731.
PUBLIC COMMENT
The Board entered two Proposed Opinions and Orders in this
matter.
The Proposed Opinion and Order of January
9, 1992,
addressed the repeals mandated by PA.
87-323.
The Proposed
Opinion and Order of January 23,
1992, addressed the inclusion of
certain heating oil
liSTs in the program.
132—68 1
2
The Proposed Orders of January
9 and 23,
1992, were combined
into a single proposal for publication in the Illinois Register.
The proposal appeared on February 14,
1992,
at 16 Ill. Reg.
2330.
The Board received the following public comment:
PC
1
Illinois Environmental Protection Agency (Agency),
Susan Schroeder and Harry Chappel, February 21,
1992.
PC
2
North Oak Chrysler Plymouth (North Oak), Carey
Rosemarin, Jenner and Block,
February 21,
1992.
PC
3
Administrative Code Division, Connie Bradway,
March 16,
1992.
The comments are discussed in detail below.
In summary,
while the Agency requested repeal of additional provisions of the
Board’s rules, North Oak argued that P.A. 87-323 did not require
repeal of the Board’s regulations.
HISTORY OF UST RULES
The UST rules are contained in 35
Ill..
Adm. Code 731.
They
were adopted and amended as follows:
R86—17
1 PCB 110, July 11,
1986;
10
Ill.
Reg.
13998,
August 22,
1986.
R86-28
75 PCB 306, February 5,
1987;
and 76 PCB 195,
March 5,
1987;
11 Ill. Reg.
6017, April
3,
1987.
Correction at 77 PCB 235, April 16,
1987;
11 Ill. Reg.
8684, May 1,
1987.
R88—27
April 27,
1989;
13 Ill. Reg.
9519, effective
June 12,
1989
(9/23/88 Technical Standards)
R89—4
July 27,
1989;
13 Ill. Reg.
15010, effective
September 12,
1989
(10/26/88 Financial Assurance
Requirements)
R89—l0
March
1,
1990;
14
Ill.
Reg.
5797, effective
April
10,
1990 (10/27/88
—
6/30/89)
R89—19
April 26,
1990 14 Ill. Reg.
9454, effective June
4,
1990 (UST State Fund)
R90—3
June
7,
1990;
14
Ill.
Reg.
11964, effective
July 10,
1990
(7/1/89
—
12/31/89)
R90—l2
February 28,
1991;
15
Ill. Reg.
6527, effective
April 22,
1991 (1/1/90
—
6/30/90)
132—682
3
R91—2
July 25,
1991;
15 Ill. Beg.
13800, effective
September 10,
199.
(7/1/90
—
12/31/90)
R9l—14
This Docket
(1/1/91
—
6/30/91)
On April 27,
1989 the Board adopted regulations which are
identical in substance to the major revisions to the USEPA UST
rules which appeared at 53 Fed. Reg. 37194,
September 23,
1988.
The Board separated the financial responsibility rules from the
September 23 rules
in order to avoid delaying adoption of the
latter.
The financial responsibility rules
(53 Fed. Reg. 43370,
10/26/88) were adopted in R89—4.
Until R88-27 the UST rules were addressed in the RCRA update
Dockets.
The Board separated the September 23,
1988 rules from
the RCRA update process because of the size and timing of the
rulemaking,
and because of the desirability of developing
a
separate mailing list for persons interested only in tanks.
The
Board will recombine the RCRA and UST updates with the next
Dockets.
FIRE MARSHAL RULES
The statute requires that the Office of the State Fire
Marshal adopt equivalents of much of the USEPA liST rules.
The
Fire Marshal’s rules are contained in 41 Iii.
Adin. Code 170,
along with preexisting rules adopted prior to the USEPA
equivalent rules.
They were adopted, amended, corrected,
proposed, and objected to in the following actions:
13
Iii. Reg.
5669,
effective April 21,
1989
(Technical
Standards).
13
Ill. Beg.
7744,
effective May 9,
1989.
13
Iii. Beg.
8515,
effective May 19,
1989
(Financial
Assurance).
13 111.
Reg.
8875,
effective May 19,
1989.
13 Ill.
Beg.
13288, August
18,
1989.
13 Ill.
Reg.
13305, August
18,
1989.
13 Iii.
Reg.
14992,
effective September 11,
1989.
13
111.
Reg.
15126,
September 22,
1989.
14
Ill.
Reg.
63, January
5,
1990.
14
Ill. Reg.
5781, April 20,
1990.
132—683
4
15 Ill. Reg.
13800, effective September 10,
1991.
15 Ill. Reg.
10875, proposed July 26,
1991.
STATUTORY AUTHORITY
The State statutes authorizing the UST rules have a short,
but incredibly complex history.
These are now intertwined with
the statutes authorizing the liST State Fund.
The following is a
brief summary of the liST statutes to date:
P.A.
SUMMARY
84-1072
Required Board to adopt rules which are “no
less stringent” than USEPA UST rules.
Implemented in R86-l and R86-28.
85-861
Required Board to adopt “identical in
substance” rules.
Also required Fire Marshal
to adopt rules which were “identical in
substance” to tJSEPA rules, but not including
those dealing with “corrective action”.
Implemented in R88-27 and R89-4.
86-125
Created the liST State Fund.
(See R89-19)
86-958
Added Section 22.13(d)
to the Act, specifying
that the UST State Fund was intended as a fund
by which persons could meet the USEPA financial
responsibility requirements.
Authorized the
Board to adopt implementing regulations.
Implemented in R89-19.
86-1050
Modified Section 22.4(d)
of the Act to limit
the Board’s authority to adopting “regulations
relating to corrective action”, but failed to
define what this meant.
Modified Section
22.13(d) so as to preclude use of UST State
Fund to meet USEPA financial responsibility
requirements.
Added heating oil UST5 of over
1100 gallons to certain provisions.
86-1484
Partially corrected P.A. 86-1050, allowing
continued use of State Fund.
87-323
Added Section 22.4(d) (4) to the Act, defining
what is not “corrective action”.
Directed
Board to regulate certain heating oil liSTs.
LIMITATION TO CORRECTIVE ACTION
132—684
5
When the main body of the UST rules were adopted in R88-27
and R89-4,
the Fire Marshal was directed to adopt rules which
were “identical in substance” to the USEPA rules, except those
dealing with “corrective action”.
The Fire Marshal was to
implement the rules up to the point of corrective action, the
Agency was to implement the rules pertaining to corrective
action.
However, the Board was required to adopt the entire body
of the USEPA rules, including those also adopted by the Fire
Marshal.
As the statute was then structured, the Board had to
adopt these rules.
In the event of a release, the Agency would
be able to bring an enforcement action before the Board alleging
violations of the design and operating requirements which caused
the release.
Asking two agencies to adopt the same rules carried a risk
that they would not adopt the exact same rules.
To avoid these
problems,
Section 22.4(d) also allowed the Board to modify its
rules to make them “identical in substance” to regulations
adopted by the Fire Marshal.
However, the Fire Marshal never
gave the required notice allowing the Board to modify its
regulations.
The statutory scheme has now been modified so as to make the
Board’s statutory authority to adopt UST rules solely as related
to Agency—enforced corrective action.
As defined in Section
22.4(d) (4), “corrective action” includes everything ~:
D3esign,
construction,
installation, general
operation, release detection, release reporting,
release investigation, release confirmation, out—of—
service systems and their closure and financial
responsibility.
These terms follow closely the titles of the Subparts in the
Board and USEPA rules.
Almost all of Subparts B,
C,
D,
E, G and
H is to be repealed.
What remains is the notification
requirements in Subpart B,
and the release response and
corrective action provisions of Subpart
F.
In addition, much of
the general material in Subpart A will be repealed, except to the
extent that it is necessary for the remaining portions of the
Board rules.
The Board has reviewed the definitions and
incorporations by reference to determine which are used in the
Board rules that remain
(or are used in other definitions).
All
others will be repealed.
The Board proposed to leave the notification requirement in
Section 731.122, based on its omission from the list of what is
not “corrective action”.
The Agency has indicated that it
believes this Section should also be repealed, but has not
provided any statutory rationale
(PC 1).
The Board agrees that
it makes no practical sense to leave the notification in.
132—685
6
However, the Board will withhold any deletion of the notification
requirement until what appears to be an error
in P.A.
87-323
is
corrected.
As noted above,
the Board’s rulemaking authority is now
constrained to those corrective action activities which the
Agency implements.
As was discussed on p.
3 and 23 in the R88-28
Opinion, the Board originally found the transition from Fire
Marshal to Agency authority to be somewhere between Sections
731.161 and 731.162, between “initial response” and “corrective
action” proper.
It
is clear under the new statutory scheme that
the transition point has been moved back to the beginning of
Subpart F,
in Section 731.160.
In other words,
the Board and
Agency will have authority over “immediate response”.
We recognize that the deletions create a vagueness in the
remaining portions;
however, these amendments are driven by
statutory amendments.
One problem is that the corrective action
provisions of the USEPA rules exist within the larger body of the
UST rules.
They include cross references into that larger body
of rules.
It is unclear how the Board is supposed to deal with
these cross references.
As is discussed below, the Board has
repealed the cross references,
leaving
a narrative description of
the actions being referenced.
This may make it difficult for
persons to follow the rules in actual practice.
However, this
result appears to be dictated by the statutory amendments.
We suggest that another problem with the current scheme is
that the UST regulatory program appears to provide no real
enforcement potential before the Board, except for failure of the
operator to properly execute his corrective action plan,
even for
intentional violation of the design and operating requirements.
For example, an operator could intentionally design a tank in
violation of the regulations, operate it in a reckless manner so
as to cause a release, and then fail to report the release.
So
long as the operator
(after being caught)
complied with the
corrective action requirements of Subpart F, the UST regulatory
scheme leaves no possibility of enforcement before the Board.
Moreover,
if the operator failed to comply with Subpart F, Board
enforcement would be limited to enforcement of the “paperwork”
requirements of that Subpart.
There would be no opportunity to
enforce for the pollution incident itself, or for the underlying
design and operating violations which caused the release.
A similar problem is suggested by North Oak
(PC 2), which is
the complainant in North Oak Chrysler Plymouth v. AMOCO, PCB 91-
214.
This is an enforcement action by a current property owner
against the prior owner,
seeking,
among other things, that the
Board order the prior owner to conduct a “release investigation”
or “site assessment” pursuant to repealed Section 731.152 or
731.173.
If a “release” from a “UST” were found, the prior owner
would have to conduct “corrective action”.
However, under P.A.
132—686
7
87—323, the “release investigation” and “site assessment” rules
are exclusively in the Fire Marshal’s rules.
This renders it
impossible for the Board to enter an effective Order in this type
of situation,
absent prior enforcement by the Fire Marshal.
In its comments, North Oak presents transcripts of the House
and Senate debates on P.A. 87-323.
The debate focused
exclusively on the expansion of the UST Fund to cover heating oil
tanks, with no mention of the restriction in the Board’s liST
rules to “corrective action”.
However, because the language of
the amendments to Section 22.4(d) (4)
is clear on its face,
legislative intent is not a factor.
North Oak also contends that,
even if the Board’s authority
is restricted,
there is no express directive to repeal prior
rules.
The Board,
however, believes that,
once authority for a
rule has been withdrawn,
the rule must be repealed.
Moreover,
with the statutory authority modified,
it would be impossible for
the Board to update its rules to keep them “identical in
substance” with USEPA rules,
as required by Section 7.2 of the
Act.
In the transcripts of the debates presented in PC 2,
there
are assertions that the Board had agreed to P.A. 87—323.
This is
incorrect.
The Board participated in the drafting of this bill,
and raised serious objections, which the other participants
declined to address.
Although the Board ultimately determined
not to oppose the bill,
it never agreed to it.
INCLUSION OF HEATING OIL liSTs
The second major change in P.A. 87—323 was the mandate to
expand the UST rules to include certain “heating oil liSTs”.
BACKGROUND
As defined in the federal RCRA Act, and in 40 CFR 280.12,
the term “liST” excludes any “Tank used for storing heating oil
for consumptive use on the premises where stored”.
The Board
adopted this definition in R88—27.
Since the term “UST” defines
the scope of the program in 40 CFR 280.10 and Section 731.110,
neither the USEPA nor Board rules applied to excluded heating oil
tanks.
When the Fire Marshal adopted its version of the liST rules,
it modified the RCRA definition of “liST” so as to exclude only
those heating oil tanks “of 1,100 gallons or less capacity”.
In
other words, the Fire Marshal’s UST rules included tanks used for
storing heating oil for consumptive use on the premises where
stored,
if they were over 1,100 gallons in capacity, regardless
of whether they were residential or non—residential tanks.
132—687
8
Then,
P.A.
86-1050, effective July 11,
1990, amended the
definition of “UST”
in both the Gasoline Storage Act and the
Environmental Protection Act.
It added heating oil tanks greater
than 1,100 gallons “serving other than residential units” to the
definitions of “UST”
in the Gasoline Storage Act and in Section
22.18(e)
of the Act, which is the Section that deals with the UST
State Fund.
Although this was evidently intended as a
legislative ratification of the Fire Marshal’s inclusion of
certain heating oil tanks in its regulatory program, the
statutory mandate did not square with the Fire Marshal’s
regulations.
In addition, P.A. 86—1050 failed to authorize the Board to
modify its identical in substance UST regulations to add, to the
State’s authorized UST regulations, heating oil liSTs.
Section
7.2(a)
of the Act defines “identical in substance” as “State
regulations which require the same actions
...
by the same group
of affected persons as would federal regulations
if USEPA
administered the subject program in Illinois”.
In the absence of
a specific mandate, the definition of “identical in substance”
continued to control the scope of the Board’s regulations.
P.A. 87—323
P.A. 87—323 has made two major changes with respect to
heating oil tanks.
First,
it has added paragraph
(5) to Section
22.4(d) of the Act, which requires the Board to adopt “identical
in substance” UST rules.
The change specifically mandates the
Board to make the liST rules applicable to “~yheating oil
underground storage tank”.
Second,
it has modified the State
Fund provisions in the Act at
Section 22.18(e)(1)J, as well as
the Gasoline Storage Act, to define “heating oil underground
storage tank”
(as set out below).
Among other things, the new
definition:
eliminates the “1,100 gallon” limitation;
and,
excludes farm and residential heating oil USTs, regardless of
size.
These amendments raise serious questions as what “heating
oil tanks” the Board rules are supposed to apply to, and whether
the other exclusions in the rules apply to the regulated heating
oil tanks.
These are discussed in greater detail below.
DEFINITION OF “HEATING OIL”
As amended in P.A.
87—323, Section 22.18(e), the definitions
applicable to the State Fund, now defines “UST”
as including
“heating oil underground storage tanks”, regardless of size.
Section 22.18(e) (1) (H)
and
(I) add the following definitions:
“Heating oil” means petroleum that is No.
1,
No.
2, No.
4 light, No.
4 heavy,
No.
5 light,
No.
5 heavy, or No.
132—688
9
6 technical grades of fuel oil; other residual fuel
oils including Navy Special Fuel Oil and Bunker
C.
“Heating oil underground storage tank” means an
underground storage tank serving other than farms or
residential units that is used exclusively to store
heating oil for consumptive use on the premises where
stored.
In other words,
“heating oil liSTs” are now eligible for
reimbursement under the State Fund,
and, for purposes of the
State Fund,
“heating oil liSTs” include all non-farm, non-
residential USTs storing heating oil for consumptive use on the
premises, regardless of size.
For example, while a 20,000 gallon
farm or residential tank is ineligible,
a 500 gallon non—farm,
non—residential tank is eligible.
The “heating oil” definition in Section 22.18(e) (1) (H)
is
similar to the definition of “heating oil” in the USEPA and Board
rules
40
CFR 280.12 and Section 731.112).
The federal and Board
regulatory definition reads as follows, with the additional
material in the Board and USEPA definitions in bold:
“Heating oil” means petroleum that is No.
1, No.
2,
No.
4--light, No.
4--heavy, No. 5--light,
No. 5--heavy or
No.
6 technical grades of fuel oil; other residual fuel
oils (including
Navy
Special Fuel Oil and Bunker C); or
other fuels when used as substitutes for one of these
fuel oils.
Heating oil is typically used in the
operation of heating equipment, boilers or furnaces.
There are three major differences between the new statutory
definition and the federal and Board regulatory definition.
First, the regulatory definition includes a “catch—all” which is
absent from the statutory definition.
Second, the statutory
definition has moved the limitation as to purpose into a new
definition of “heating oil
liST”.
Third, the concept that
“heating oil” can be used in “boilers or furnaces” has been lost
altogether.
In other words,
the definition of “heating oil”
is
narrower (without the catch—all), but is broader in the sense
that “heating oil” itself includes no limitation as to purpose.
Moreover, even used in conjunction with “heating oil liST”,
tanks
used for storing oil for boilers or industrial process furnaces
have an ambiguous status.
WHAT
TYPE OF HEATING OIL
TANKS SHOULD BE REGULATED?
Section 22.4(d) (5) directs the Board to make its liST rules
applicable “to any heating oil underground storage tank”.
Does
this mean “heating oil UST” as defined in Section 22.18(e) of the
Act,
or does it mean “liST” and “heating oil”,
as defined within
the
RCRA
rules?
132—689
10
As a general rule, the Board does not modify the definitions
in the identical
in substance rules to be consistent with terms
defined in the Act.
The Board has long held that attempting to
so modify definitions within such programs would modify the scope
of the programs and the way the parts of the program fit
together,
so that the Board could not comply with the “identical
in substance” mandate.
However,
in this situation, the Board is
faced with a specific mandate that it modify the scope of the
program to add additional tanks.
The questions then become:
what scope
is intended;
and how can the change in scope best be
effectuated, without changing the way the parts of the program
fit together?
Since the revision to the statutory mandate in Section
22.4(d) (5) was effected in the same Public Act which added the
definitions to Section 22.18,
it seems most likely that the
intent was to include those “heating oil liSTs” now eligible for
reimbursement under the fund.
The Board has therefore made its
UST rules applicable to “heating oil liSTs” as defined in Section
22.18.
There are two basic ways of changing the scope of the UST
rules.
The first approach would be to modify the definitions in
Section 731.112 to make them consistent with Section 22.18(e),
and then add “heating oil liSTs” to the applicability statement in
Section 731.110.
The second approach, which the Board is
following, would use the statutory definitions within the
applicability statement Section
731.110), thus retaining the
USEPA definitions in Section 731.112,
for use within the body of
the rules.
The Board has rejected the first approach because,
as
discussed above,
it carries a risk of introducing fundamental
changes
in the way the USEPA-derived rules relate to each other
(and in the scope of rules not directly related to the heating
oil question).
In addition,
it would make it difficult to
maintain the rule set in routine update Dockets, since it would
be necessary to continuously guard against USEPA amendments
either to the definitions involved,
or to Sections using the
terms with non-USEPA definitions.
The Board has therefore followed the second approach, using
the statutory definitions within the applicability statement,
while retaining the USEPA definitions in Section 731.112, for use
within the body of the rules.
However, this poses potential
problems,
in that essential terms,
including “heating oil”, would
have two different meanings within Part 731.
As discussed below,
the Board has drafted the rule so as to clearly delineate the two
definition sets.
SECTION-BY—SECTION DISCUSSION
132—690
11
Section 731.110
This Section has been retained in accordance with P.A. 87—
323.
This is the applicability Section for the entire Part.
It
is retained,
since it functions as the applicability Section for
the corrective action requirements, which are to be retained in
Subpart
F.
Section 731.110(c)
includes a “deferral” for several types
of USTS from most of the UST rules
(except the Subpart F
corrective action requirements).
All the listed requirements are
to be repealed.
Section 731.110(c)
includes a “deferral” for several types
of liSTs from most of the liST rules
(except the Subpart F
corrective action requirements).
All the listed requirements are
to be repealed, except for the notification requirement in
Section 731.122.
Accordingly, this will become a deferral only
from that requirement, as far as the Board rules are concerned.
Section 731.110(d)
is another deferral, only from the
release detection requirements of Subpart D.
Since these are to
be repealed, there is no need at all for the deferral in the
Board rules.
Accordingly, this subsection will be repealed.
APPLICABILITY DEFINITIONS
As discussed above, the Board has stated the applicability
of Part 731 to “heating oil liSTs” by means of limited use
definitions drawn from Section 22.18(e) of the Act.
It turns out
that this is easier said than done,
since the definitions in
Section 22.18(e) themselves use terms which,
although undefined
in the Act, are defined in the existing, federally-derived Board
rules.
It is fairly clear that P.A. 87-232 was drawing on these
rules for the more basic terms.
It is therefore necessary to
bring some of these terms into the definitions used in the
applicability statement.
The main term which must be drawn from the existing,
federally-derived rules is
“liST”.’
The Board has repeated the
general part of the text of this definition,
which is all that is
needed to make sense of the term,
as used.
Several additional terms are used in the definition of
“UST”.
These include “beneath the surface of the ground”,
‘Actually,
Section 22.18(e)
includes
a definition of
“UST”.
However,
this references the definition in the RCRA Act, which is
implemented in 40 CFR 280, which in turn is implemented in Section
731.112.
The Board has proposed to shorten this loop by directly
setting forth the definition.
132—691
12
“pipe”, “regulated substance” and “tank”.
These are simply
referenced into the applicability definitions.
Two
other terms used in the definitions in Section 22.18(e)
of the Act are defined in the rules.
These are “consumptive use”
and “on the premises where stored”.
The Board has moved the
text of these definitions from the federally-derived definitions
of Section 731.112 to the applicability definition set.
These
terms are no longer needed in the general definitions, since they
were used only to state the heating oil exemption in those rules.
The Board has added “Board notes” at their places in the
definition list, to aid future comparison with the USEPA rules,
and as an important cross reference to aid readers accustomed to
finding the heating oil exclusion in the USEPA rules.
Within the USEPA-derived regulations, the heating oil
exclusion is located as an exclusion from the definition of
“liST”.
The Board has removed the text of the exclusion.
A
“Board note” will be left, cross referencing the applicability
statement in Section 731.110(e).
The applicability definition set reads as follows:
Section 731.110(e) (1):
Definitions.
The following definitions apply to this
subsection only:
“Beneath the surface of the ground”
is as defined
in Section 731.112.
“Consumptive use” with respect to heating oil
means consumed on the premises.
“HEATING OIL” MEANS PETROLEUM THAT IS NO.
1, NO.
2, NO.
4 LIGHT,
NO.
4 HEAVY,
NO.
5 LIGHT,
NO.
5
HEAVY, OR NO.
6 TECHNICAL GRADES OF FUEL OIL;
OTHER RESIDUAL FUEL OILS INCLUDING NAVY SPECIAL
FUEL OIL
AND
BUNKER
C.
(Section 22.18(e) (1) (H)
of
the Act)
“HEATING OIL UNDERGROUND STORAGE TANK” or “heating
oil UST”
MEANS
AN
UNDERGROUND STORAGE TANK SERVING
OTHER
THAN
FARMS OR RESIDENTIAL UNITS THAT IS USED
EXCLUSIVELY TO STORE HEATING OIL FOR CONSUMPTIVE
USE ON THE PREMISES WHERE STORED.
(Section
22.18(e) (1) (I)
of the Act)
“On the premises where stored” with respect to
heating oil means UST systems located on the same
property where the stored heating oil is used.
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13
“Pipe” or “piping”
is as defined in Section
731.112.
“Regulated substance” is as defined in Section
731.112.
“Tank” is as defined in Section 731.112.
“Underground
storage
tank”
(“UST”)
means
any
one
or combination of tanks (including underground
pipes connected thereto) which is used to contain
an accumulation of regulated substances, and the
volume of which (including the volume of the
underground pipes connected thereto)
is ten per
centum or more beneath the surface of the ground.
TEXT OF EXCLUSION
With the applicability definitions so stated, the
applicability statement becomes relatively straightforward.
The
text reads as follows:
Section 731.110(e):
2)
Subsection
(a)
—
(c) notwithstanding, THIS
PART
APPLIES TO OWNERS
AND
OPERATORS OF
ANY
HEATING OIL
UST.
(Section 22.4(d) (5)
of the Act)
3)
The owner or operator of a heating oil UST shall
comply with the same requirements as the owner or
operator of a “petroleum liST”,
as defined in
Section 731.112, any other provisions of this Part
notwithstanding.
BOARD NOTE:
This
subsection
implements Section
22.4(d) (5)
of the Act, which requires that this
Part be applicable to “heating oil USTs”,
as that
term is defined in Section 22.18(e) of the Act.
However, that and related terms are used in a
manner
which
is
inconsistent
with
the
definitions
and
usage
in this Part.
The definitions used in
this applicability statement are therefore limited
to this subsection.
GLOBAL
EXCLUSIONS
The USEPA,
and Board, UST rules include six exclusions, and
a number of deferrals Section
731.110(b)
and
(c).
One of these
is the exclusion for liSTs of 110 gallons or less.
However,
Section 22.4(d) (5)
of the Act appears to leave no room for this
exclusion.
The
Board’s
rules
must
apply
to
“any
heating oil
UST”,
a
term
which
is defined in the statute without reference to
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14
the exclusions.2
Therefore,
the way the rule is structured,
the
exemptions do not apply to heating oil tanks.
Sections
731.111
and
731.114
These
sections
have
been
repealed
in
accordance
with P.A.
“Aboveground release”
“Ancillary equipment”
“Below ground release”
“Beneath the surface of
the ground”
“Connected piping”
“Consumptive use”
“Dielectric material”
“Electrical Equipment”
“Excavation zone”
“Farm Tank”
“Flow—through process tank”
“Free product”
2The
Board
has
above
held
that
Section
22.4(d)
(5),
as
added
by
P.A. 87-323, intended to reference the
statutory
definitions
added
to Section 22.18(e).
If P.A. 87—323 had been intended to reference
the regulatory definitions, the exclusions would arguably apply.
87—323.
Section 731.112
In this Section, certain definitions were retained because
they appear within Sections which were retained or amended (or
appear within other definitions which were retained).
The
definitions which have been taken out of this Section applied
only to repealed sections.
The following is a list of some of
the retained definitions and the place they appear:
Definition
Place where Defined Term
Appears
Subpart
F
Definition of “UST system”
Subpart
F
Definition
of “UST”
Definition of
“liST system”
Definition of “UST”
Definition of “Electrical
equipment”
Section
731.110
Section
731.162
Definition
of
“UST”
Definition of “UST”
Section
731.162
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15
“Gathering lines”
“Heating oil”
“Hydraulic lift tank”
“Liquid trap”
“Motor fuel”
“Noncommercial purposes”
“Operator”
“Overfill release”
“Owner”
“Person”
“Pipe”
“Pipeline facilities”
“Regulated substance”
“Release”
“Residential tank”
“Septic
tank”
“Storm
water
or
wastewater
collection
system”
“Surface
impoundment”
“Tank”
“Underground
area”
“Underground
storage
tank”
or
“liST”
“UST
system”
“Wastewater treatment tank”
Section 731.113
Definition of
“liST”
Definition
of
“UST”
Section
731.110
Definition of “UST”
Definition
of
“Petroleum”
Definition of “UST”
Section
731.110
Subpart
F
Section
731.110
Definition
of
“Owner”
Definition
of
“liST”
Definition
of
“UST”
and
Section 731.110
Section 731.110
Subpart F
Definition
of
Definition
of
Definition
of
Definition of “UST”
Definition of “UST”
Definition
of
“UST”
731.110
and
Subpart
F
Section
731.110
Section
731.110
“UST”
“UST”
“UST”
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16
In this Section, certain incorporations by reference were
retained because they appeared within Sections which were
retained or amended.
The incorporations by reference which have
been taken out of this Section applied only to repealed Sections.
The following is a list of the retained incorporatioris and the
place they are used:
Incorporations
Place
where
Incorporation
Used
10 CFR 50, App. A
Section 731.110
40 CFR 280.3
(1987)
Section 731.122
(repealed September 23,
1988)
40 CFR 302.4 and 302.6
Section 731.112
The first and third items have been updated to reference the
current
(1991)
Edition of the CFR.
The second will continue to
reference the original USEPA notification requirement, which is
now repealed.
Subpart B
This Subpart has been repealed in accordance with P.A. 87-
323.
The information contained in them can now be found in the
Fire Marshal’s Code at 41 Ill. Adm.
Code
170 et seq.
Section 731.122
This Section requires notification of the existence of
tanks.
As discussed above, the Board has retained it, since it
appears to have been excluded from the list of things which are
not “corrective action”.
The
Section
contains
numerous
cross
references
into
rules
which
are
to be repealed.
The Board has proposed to repeal the
references,
leaving a narrative description of the requirements.
Subparts C through E
These Subparts have been repealed in accordance with P.A.
87-323.
The information contained in them can now be found in
the Fire Marshal’s Code at 41 Ill.
Adm. Code 170 et seq.
Section 731.160 et seq.
Subpart
F
deals
with
corrective
action.
This is clearly
contained
within
the
Board’s rulemaking authority under P.A. 87-
323.
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17
This Subpart includes several cross references to Board
repealed
Sections.
The
Board
has
removed
the
cross
references,
leaving only a narrative description of what is referred to.
As was discussed in general above,
in R88—27 the Board
determined that the division between the Fire Marshal and Agency
authority was between Sections 731.161 and 731.162, when “initial
response”
gives
way
to
the
“initial
abatement
measures”.
The
new
legislation clearly moves the demarcation back to the end of
Subpart
E, such that the initial abatement measures are now
within Board and Agency jurisdiction.
Subparts G and H
These
Subparts
have
been
repealed in accordance with P.A.
87-323.
The
information
contained
in
them can now be found
in
the
Fire
Marshal’s
Code
at 41 Ill. Adm. Code 170
et
seq.
Appendix
A
This
Appendix
is referenced in Section 731.122, which is
being retained.
The Board has therefore proposed to update the
incorporation by reference of 40 CFR 280, App.
I.
Appendix C
Section 731.122 includes a reference to “Appendix C”, which
should correspond with 40 CFR 280,
App., III.
The Board
inadvertently omitted to adopt this in R88-27.
The Board has
therefore adopted the Appendix at this time.
(PC 1)
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion was adopted on the
~?~-‘
day
of
~
~
~ L
,
1992,
by
a
vote
of
7
~
Control
Board
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7