ILLINOIS POLLUTION CONTROL BOARD
February 28, 1991
IN THE MATTER OF:
)
UST UPDATE
)
R9l-2
USEPA REGULATIONS
)
(Identical
in
(7/1/90
—
12/31/90)
)
Substance Rulemaking)
PROPOSAL
FOR
PUBLIC
COMMENT
PROPOSED
OPINION OF THE BOARD
(by
3.
Anderson):
Pursuant to Section 22.4(d)
of the Environmental Protection
Act
(Act),
the Board
is proposing
to amend
the UST underground
storage tank regulations
in 35
Ill.
AdTn.
Code 731.
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
following1USEPA actions, during the period July 1 through December
31,
1990:
55 Fed.
Beg.
46025
October
31, 1990
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.
1This
rulemaking
does
not
address
the
effects
on
the
UST
regulations of H.B.
3325, which has been signed into law as PA.
86-1050.
In R90-12,
the Board postponed action pending possible
revisions to PA.
86-1050.
During the pendency of that proposal,
P.A. 86-1484 corrected a portion of P.A.
86-1050.
In anticipation
of possible further corrective legislation, we will again postpone
any action on P.A.
86-1050.
119—207
2
Correction at 77 PCB 235, April 16, 1987;
11 Ill.
Reg.
8684, May
1,
1987.
R88—27
April 27, 1989;
13 Iii. Beg. 9519, effective June
12,
1989
(9/23/88 Technical Standards)
R89—4
July
27,
1989;
13
Iii.
Reg.
15010,
effective
September 12,
1989 (10/26/88 Financial Assurance
Requirements)
R89—l0
March 1, 1990;
14 Ill. Beg. 5797, effective April
10,
1990
(10/27/88
—
6/30/89)
R89—19
April 26,
1990
14
Ill. Beg.
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—12
February 28,
1991
(1/1/90
—
6/30/90)
R9l—2
This Docket
(7/1/90
—
12/31/90)
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.
Beg.
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 UST
rules.
The
Fire
Marshal’s rules are contained in 41 Ill. Adm. Code 170, along with
preexisting
rules
adopted prior to the USEPA equivalent
rules.
They were
adopted,
amended,
corrected
and
objected
to
in
the
following actions:
13
Ill.
Beg.
5669,
effective
April
21,
1989
(Technical
Standards)
13
Ill. Beg.
7744,
effective May
9,
1989.
119—208
3
13
Ill.
Reg.
8515,
effective
May
19,
1989
(Financial
Assurance)
13 Ill. Beg.
8875,
effective May 19,
1989.
13 Ill.
Beg.
13288,
August
18,
1989.
13 Ill. Beg.
13305, August
18,
1989.
13
Ill. Reg.
14992, effective September 11,
1989.
13
Ill. Reg.
15126, September 22,
1989
14
Ill. Beg.
63, January
5, 1990
14
Ill. Beg.
5781,
April 20,
1990
SECTION-BY-SECTION DISCUSSION
Section 731.113
The
Board
has
proposed
to
update
the
incorporations
by
reference of
federal regulations to the 1990 Edition of the Code
of Federal Regulations, which includes federal actions through June
30,
1990.
This Section includes “abnormal” incorporations by reference,
i.e. references to federal rules which are cross-referenced in the
USEPA UST
rules,
~it which
are
not
a
part
of the UST
program
itself.
Any “normal”
incorporations
by
reference
of UST rules
occur at the appropriate point in the verbatim text.
When USEPA cross
references another
federal
regulation,
it
usually means
to include any future amendments to the referenced
rule.
However,
the
Board
is
limited to incorporating specific
editions
of
federal
regulations.
(Section
6.02
of
the
APA)
Therefore,
in
order
to
maintain
equivalence,
the
Board
must
periodically update its references.
Any “normal” incorporations by reference which are amended at
the federal level can be found by an index search of the USEPA UST
rules,
and are routinely updated in the Update Dockets.
However,
because the “abnormal” references are not located in any specific
portion of the USEPA rules, amendments cannot be found in this way.
This is why they are consolidated in the incorporation Section.
The Board has proposed to simply update these references, but has
not attempted to discover if there are in fact any amendments to
these regulations.
The main impact of this update may be to update the references
to
40
CFR
302,
which
is
the
CERCLA
consolidated
listing
of
“hazardous substances”.
This
is used in the UST rules to define
119—209
4
“hazardous substance UST”.
Updating the reference will bring tanks
containing any newly listed hazardous substances into the program.
Section 731.191
This
Section
includes
the
compliance
dates
for
financial
responsibility.
The Section
is
drawn from 40 CFR 280.91, which
was amended at 55 Fed.
Beg. 46025, October 31,
1990, to extend the
compliance date for owners of less than
13 USTs to October
26,
1991,
and for units of local government,
until one year after the
adoption of additional mechanisms for units of local government.
The USEPA rule uses the phrase “local government entities”.
The Board has proposed to use the phrase “unit of local government”
from the Illinois Constitution,
in accordance with the definition
in Section 731.192,
as adopted in R89-4.
The USEPA
rule, also
refers
to
“underground
storage
tanks
containing petroleum”.
The
Board has proposed to use the term
defined in Section 731.191, “petroleum UST”, which is used to state
the compliance dates for other types of owners.
However, there is
a possibility that USEPA intends to be defining a new type of tank
to
specify the
scope
of
the
financial
responsibility rules
as
applied to local government.
The Board
solicits comment.
This proposed Opinion supports a Proposed Order adopted this
same day.
IT IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, h~~ycertify
th~.
the above Proposed Opinion was,adoj2ted
on the~’(d’’~dayof
~7
,
1991,
by
a vote of
~
~rk~
Illinois P01
tion Control Board
119—210