ILLINOIS POLLUTION CONTROL BOARD
March
1,
1990
IN THE MATTER OF:
)
UST UPDATE.
USEPA REGULATIONS
)
R89-1O
(10/27/88 through 6/30/89)
)
(Rulemaking)
FINAL ORDER.
ADOPTED RULES
OPINION AND ORDER
OF THE BOARD
(by J. Anderson):
Pursuant to Section 22.4(d)
of the Environmental Protection Act
(Act),
the Board
is
amending the UST underground storage tank regulations
in
35
Ill.
Adm. 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 following USEPA actions,
through June 30,
1989.
53 Fed.
Reg. 44976
November
7,
1988
53 Fed.
Reg. 51274
December
21,
1988
54 Fed.
Reg.
5452
February
3,
1989
On January
11,
1990,
the Board entered
an “extension
of time” Order pur-
suant
to Section 7.2(b) of the Act
(Ill. Rev.
Stat.
1988 Supp.,
ch.
111 1/2,
par. 1007.2(b)).
The Order noted
that
all
of the amendments involved
in
this
Docket are corrections which should have been addressed
in R88—27
or R89—4.
PUBLIC COMMENT
The Board adopted
a Proposed Opinion and Order on November 15,
1989.
The
proposal appeared
on January
5,
1990,
at
14 Ill. Reg.
153.
The Board has
received
the following public comment:
PC
1
JCAR
PC
2
Administrative Code Divisi~on
The
Board
acknowledges
the
contributions
of
Morton
F.
Dorothy
and
Anne
E.
Manly
in
preparing the
Opinion
and
Order.
229
—2—
PC
1 was
a JCAR post—adoption review comment
on
R89-4, which was
redocketed
in this matter,
and
is
addressed below.
The other comment was from
the Code Division
as
to
codification format.
HISTORY
OF UST RULES
The UST rules are contained
in
35 111. Adm. Code
731.
They were adopted
and amended
as
follows:
R86-1
71
PCB
110, July 11,
1986;
10
Ill.
Reg.
13998, August
22,
1986.
R86-23
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.
288-27
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)
R89-1O
This Docket
(10/27/88
—
6/30/89)
R89-19
Proposed January
11,
1990 (UST State Fund)
R90-3
Next Update Docket
(7/1/89
—
12/31/89)
On April
27,
1989 the Board adopted ~‘egulations
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
consider recombining the RCRA and UST updates after
initial
adoption
of
the
new
program.
FIRE
MARSHAL
RULES
As
is
discussed
in greater detail
below, the legislation
requires that
both
the
Board
and
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. Reg.
5669,
effective April
21,
1989 (Technical
Standards)
13 Ill. Reg.
7744, effective May
9,
1989.
109—230
—j—
13
Ill.
Reg.
8515,
effective
flay
19,
1989
(Financial
Assurance)
13 Ill. Reg.
8875,
effective May 19,
1989.
13
Ill. Reg.
13288,
August
18, 1989.
13
Ill. Reg.
13305,
August
18,
1989.
13
111.
Reg.
14992,
effective September
11,
1989.
13
Ill. Reg.
15126,
September 22, 1989
STATUTORY
AUTHORITY
The February
2, 1989 Opinion
in R88-27
included
a lengthy discussion of
Section
22.4(d)
of
the Act,
and other
provisions
of
P.A.
85-861,
the statutory
basis
of
the UST program.
The Board will
reference that discussion
here, and
will only sun~narize it
in
this Opinion.
Section 22.4(d)
of the Act
requires
the Board
to
adopt
regulations which
are
“identical
in
substance” with USEPA’s UST regulations.
Ill.
Rev.
Stat.
1987,
ch.
127
1/2,
par.
154(b)(i) requires
the Office
of
the
Illinois State
Fire Marsh.~l to adopt
regulations which are also to
be
“identical
in
substance”1
to
the same USEPA UST regulations.
While
the Fire Marshal
is
to
adopt
regulations only through ‘corrective action”,
the Board
is
to adopt the
entire
set
of
rules.
In 288—27
the Board adopted
regulations which,
among
other
things,
reflect
the delineation between
regulations
before
and
after
“corrective action”.
The financial
responsibility regulations
bridge the corrective action
gap.
Operators are
required to provide financial
assurance imediately
or
in
the
near future.
This will mainly be for tanks which
a~’~enot
known
or
suspected to
be
leaking.
However,
if
a tank
leaks, and
the operator
fails
to
take sufficient corrective action, the financial
institutions will
pay funds
for corrective
action which will
be under
the direction
of the Agency. ~Thus
the Fire Marshal
will
be responsible for receiving the financial
assurance
documents,
hut
the Agency will
be
the
recipient of any funds.
Ill.
Rev.
Stat. 1987,
ch.
127
1/2,
par. 154(b)(ii)
allows
the Fire
Marshal
to adopt
“additional
requirements”.
Section
22.4(d)
of
the Act allows
the Board,
upon receiving notice
of such requirement,
to elect
to adopt
further Board requirements which
are
“identical
in
substance”
to
the
additional
Fire Marshal
requirements.
The R88-27
and R89-4
rules
followed
the
USEPA
rules closely.
SUMMARY OF
CHANGES
The USEPA actions are minor
corrections to
the major packages add~essed
in 288-27 and 289-4.
As
it turns
out,
these extend
a date
to
a
point which
had already passed before the Board adopted
the original
date,
and modify
forms which
the Board has just
incorporated
by
reference anyway.
The changes
to the Board
regulations
are therefore minimal.
Section 731.191
‘The term
“identical
in substance”
is defined in Section
7.2 of the Act
(Ill. Rev.
Stat.
19S8
Supo., ch.
111
1/2,
par
1007.2)
iün —231
-‘+-
This Section
is
drawn from 40 CFR
280.91, which was amended
at
54 Fed.
Reg. 5452, February
3, 1989.
40 CFR 280.91(a)
sets
a compliance date of
January 24,
1989 for the financial assurance requirements for certain
operators.
Because this date had already passed,
in R89—4 the Board
required
immediate compliance.
However,
the federal
compliance date has now been
amended
to add
a complex proviso extending the effective date4 for certain
requirements to July 24,
1989,
a date which
has
also passed.
Because this may
have caused confusion,
the Board
is
now inserting the January
24,
1989 date
and July
24 proviso.
Section 731.193
In Section
731.193(f), Board
has
inserted
language which was
inadvertently omitted
in R89-4.
This Section
is drawn from 40 CFR 280.93(f),
which was adopted
at
53 Fed.
Reg. 43372, October
28,
1988.
Section 731.203
Section 731.203 incorporates
changes
in
the Trust Agreement Form.
In
R89—4 the Board
incorporated these
forms
by
reference, without
setting the
text forth
in
full.
The Board
has
updated the incorporations by reference.
Appendix A
The notification form was amended
at
53 Fed. Reg. 37208, September
23,
1988.
The form should
have been updated
in R88—27,
but was
inadvertently
omitted.
Rather than include
the
form with
the rules, the Board
has
incorporated the USEPA regulation
by
reference,
and
to require
the use of Fire
Marshal
forms where available.
If the
forms are not
available,
the person may
prepare
a
notification form based
on the USEPA
rule.
This
is
the format
employed
for the financial
assurance forms
in R89-4.
ORDER
The Board
hereby amends 35 ill.
Adm. Code
731 as follows.
The Board will
withhold
filing these
rules
for 30 days
to allow time for motions
for
reconsideration.
TITLE
35:
ENVIRONMENTAL
PROTECTION
SUBTITLE
G:
WASTE
DISPOSAL
CHAPTER.
1:
POLLUTION
CONTROL BOARD
SUBCHAPTER
d:
UNDERGROUND
INJECTION CONTROL
AND WDERGROUND STORAGE
TANK
PROGRAMS
PART
731
UNDERGROUND STORAGE
TANKS
SUBPART A:
PROGRAM SCOPE
AND
INTERIM
PROHIBITION
Section
731.101
Definitions
and exemptions
(Repealed)
731.102
Interim prohibitions
(Repealed)
731.103
Notification Requirements
(Repealed)
10~—2
32
—5-
731.110
Applicability
731.111
Interim Prohibition for Deferred Systems
731.112
Definitions
731.113
Incorporations by Reference
731.114
Implementing Agency
SUBPART
B:
UST
SYSTEMS:
DESIGN, CONSTRUCTION, INSTALLATION
AND
NOTIFICATION
Secti on
731.120
Performance Standards
for New Systems
731.121
Upgrading of Existing Systems
731.122
Notification Requirements
SUBPART C:
GENERAL OPERATING REQUIREMENTS
Section
731.130
Spill
and Overfill Control
731.131
Operation
and Maintenance of Corrosion Protection
731.132
Compatibility
731.133
Repairs Allowed
731.134
Reporting and Recordkeeping
SUBPART D:
RELEASE DETECTION
Secti on
731.140
General Requirements
for all
Systems
731.141
Petroleum Systems
731.142
Hazardous Substance Systems
731.143
Tanks
731.144
Piping
731.145
Recordkeeping
SUBPART
E:
RELEASE REPORTING,
INVESTIGATION
AND CONFIRMATION
Section
731.150
Reporting
of Suspected Releases
731.151
Investigation due to Off—site Impacts
731.152
Release Investigation
and Confirmation
731.153
Reporting and Cleanup
of Spills
and Overfills
SUBPART
F:
RELEASE RESPONSE AND CORRECTIVE ACTION
Secti on
731.160
General
731.161
Initial Response
731.162
Initial Abatement Measures and Site Check
731.163
Initial Site Characterization
731.164
Free Product Removal
731.165
Investigations
for Soil
and Groundwater Cleanup
731.166
Corrective Action Plan
731.167
Public Participation
SUBPART
G:
OUT-OF-SERVICE
SYSTEMS
AND
CLOSURE
Secti on
731.170
Temporary Closure
731.171
Permanent Closure and Changes-in—Service
731.172
Assessing Site
at Closure
or Change-in—Service
731.173
Previously Closed Systems
109—233
-6-
731.174
Closure
Records
SUBPART
H:
FINANCIAL RESPONSIBILITY
Section
731.190
Applicability
731.191
Compliance
Dates
731.192
Definitions
731.193
Amount
and Scope
of Required Financial
Responsibility
731.194
Allowable Mechanisms and Combinations
731.195
Financial
Test of Self—insurance
731.196
Guarantee
731.197
Insurance or Risk Retention
Group Coverage
731.198
Surety Bond
731.199
Letter
of Credit
731.202
Trust
Fund
731.203
Standby
Trust
Fund
731.204
Substitution
of Mecha~isms
731.205
Cancellation
or Nonrenewal
by Provider
731.206
Reporting
731.207
Recordkeeping
731.208
Drawing
on
Financial
Assurance
731.209
Release
from
Financial
Assurance
Requi rement
731.210
Bankruptcy or.other Incapacity
731.211
Replenishment
731.900
Incorporation
by
reference
(Repealed)
731.901
Compliance
Date
(Repealed)
Appendix
A
Notification Form
AUTHORITY:
Implementing
Section
22.4(d)
and
autho~ized by
Section
27
of
the
Environmental
Protection Act
(Ill.
Rev.
Stat.
1988
Supp.
ch.
111
1/2,
pars.
1022.4(d)
and
1027).
SOURCE:
Adopted
in
R86—1
at
10
111.
Reg.
14175,
effective
August
12,
1986;
amended
in R86—28
at
11
Ill.
Reg.
6220,
effective March
24,
1987;
amended
in
R88—27
at
13
Ill.
Reg.
9519,
effective
June
12,
1989;
amended
in R89—4
at
13
Ill.
Reg.
15010,
effective
September
12,
1989;
amended
in
R89—1O
at
14
Ill.
Reg.
,
effective
SUBPART
H:
FINANCIAL RESPONSIBILITY
Section
731.191
Compliance Dates
Owners
of
petroleum
underground
storage
tanks
are
required
to
comply
with
the
requirements
of
this
Subpart
by
the
following
dates:
a)
All
petroleum marketing firms
owning
1,000
or
more
USTs
and
all
other
UST
owners
that
report
a
tangible
net
worth
of
$20
million
or
more
to
the U.S.
Securities
and Exchange Commission
(SEC),
Dun and
Bradstreet,
the
Energy
Information
Administration
or
the
Rural
Electrification
Administration:
—
~eate~y~—
January
24,
1989,
except that compliance with Section 730.194(b)
is
required
by:
July
24,
1989.
109—2 34
—7—
b)
All
petroleum marketing
firms owning 100 through 999 USTs:
October
26,
1989.
c)
All
petroleum marketing
firms
owning
13 through
99 USTs at more than
one facility:
April
26, 1990.
d)
All
petroleum UST
owners not described in subsections
(a),
(b) or
(c),
including units
of
local
government:
October
26,
1990.
(Source:
Amended
at
14 Ill.
Reg.
,
effective
)
Section 731.193
Amount and Scope of Required Financial Responsibility
a)
Owners
or
operators of petroleum underground storage tanks shall
demonstrate financial
responsibility for taking corrective
action and
for compensating third parties for bodily
injury and property damage
caused
by accidental
releases arising from the operation of petroleum
underground storage tanks
in
at least
the following per-occurrence
amounts:
1)
For owners
or operators
of petroleum underground
storage tanks
that
are located
at petroleum marketing facilities,
or that
handle
an average of more than 10,000 gallons
of petroleum per
month based
on
annual throughput
for the previous calendar
year:
$1 million.
2)
For
all
other
owners
or operators of petroleum underground
storage tanks:
$500,000.
b)
Owners
or operators
of petroleum underground
storage tanks shall
demonstrate financial
responsibility for taking corrective action
and
for compensating third parties
for bodily
injury and property damage
caused by accidental
releases arising from the operation of petroleum
underground storage tanks
in
at least the following annual
aggregate
amounts:
1)
For owners
or operators
of
1
to
100 petroleum underground
storage tanks:
$1 million;
and
2)
For owners
or operators
of
101
or more petroleum underground
storage tanks:
52 million.
c)
For the purposes of subsections
(b) and
(f) only,
a
“petroleum
underground
storage tank”
means
a
single containment
unit and
does
not mean combinations
of
single containment
units.
d)
Except
as provided
in
subsection
(e)’,
if the owner
or operator uses
separate mechanisms
or separate combinations
of mechanisms
to
demonstrate financial
responsibility for:
1)
Taking corrective action;
lOn—235
-8-
2)
Compensating
third parties
for bodily
injury
and property damage
caused
by sudden accidental
releases; or
3)
Compensating third
parties for
bodily
injury and property damage
caused
by nonsudden accidental
releases, the
amount
of assurance
provided by
each mechanism or combination
of mechanisms must
be
in the full
amount specified
in subsection
(a)
and
(b).
e)
If
an owner
or operator uses separate mechanisms
or
separate
combinations
of mechanisms
to demonstrate financial
responsibility
for different petroleum underground
sto~’age tanks,
the annual
aggregate required must be based
on the
number
of
tanks
covered
by
each
such separate mechanism
or combination
of mechanisms.
f)
Owners
or operators shall
review the
amount of aggregate assurance
provided whenever additional
petroleum underground storage
tanks
are
acquired or
installed.
If the number
of petroleum underground
storage tanks
for which assurance must be provided exceeds
100,
the
owner
or operator
shall
demonstrate financial
‘~‘esponsibilty in the
amount
of
at least
$2 million
of
annual agg’~egateassurance
by the
anniversary
of the date on which the mechanism demonstrating
financial
responsibility became effective.
If assurance
is being
demonstrated
by
a combination
of mechanisms, the owner or operator
shall
demonstrate financial
responsibility
in the
amount
of
at
least
~2 million
of annual
aggregate assurance by
the first—occurring
effective date anniversary
of
any one
of
the mechanisms
combined
(other than
a financial
test
or guarantee)
to provide assurance.
g)
The amounts
of
assurance required under this Section exclude legal
defense costs.
h)
The required per-occurrence and
annual
aggregate coverage amounts
do
not
in
any way limit
the liability of the owner
or operato”.
(Source:
Amended
at
14 Ill.
Reg.
,
effective
Section 731.203
Standby Trust Fund
a)
An
owner
or operator using
any one
of the machanisms
authorized
by
Sections 731.196,
731.198
or
731.199 shall
establish
a
standby trust
fund when the mechanisr
is
acquired.
The trustee
of
the standby
trust
fund shall
be
an entity that
has the authority to act
as
a
trustee and whose trust
operations a~eregulated
and examined by the
Illinois
Comissioner
of
Banks
and
Trust
Companies,
or
who
complies
with the Corporate Fiduciary Act.
(Ill.
Rev. Stat.
1987,
ch.
17,
pars.
1551-1
et
seq.)
b)
Forms.
1)
The Board
incorporates
by
reference 40 CFR 280.103(b)
as
adopted
at
53 Fed. Reg. 43370, October 26,
1988
and as
amended
at
53
Fed. Reg. 51274, December
21,
1988.
This Section incorporates
no future
editions or amendments.
109—236
—9—
2)
The Fire Marshal
shall
promulgate forms based
on the forms
in
40
CFR 280.103(b), with such changes
as
are necessary under
Illinois law.
3)
The owner or operator shall
use such forms
if
available;
otherwise,
the owner or operator shall
use the farm in
40 CFR
280.103(b), except that instructions
in
brackets must
be
replaced with the relevant information and the brackets deleted.
4)
In addition, the owner or operator and trustee shall
agree that
Illinois law governs the trust.
c)
The Fire Marshal
shall
instruct the trustee to
refund the balance
of
the standby trust
fund to the provider of financial
assurance if the
Fire Marshal determines that
no
additional corrective action
costs
or
third—party liability claims will
occur
as
a
result
of
a release
covered
by the
financial assurance mechanism for which
the standby
trust
fund was established.
d)
An
owner
or operator may establish one trust fund as the depository
mechanism for
all
funds
assured
in compliance with this Subpart.
(Source:
Amended
at
14
Ill. Reg.
,
effective
Section 731.Appendix A
The Board
incorporates
by
reference 40 CFR 280, Appendix
1
(1988),
as amended
at
53 Fed. Reg. 37208, September 23,
1988.
This Section incorporates
no
future editions
or amendments.
Persons
required to notify shall
use
forms
provided by the Fire
Marshal
if available.
Otherwise, they may prepare forms
based
on
40 CFR
280, Appendix
I.
(Source:
Amended
at
14 Ill. Reg.
,
effective
)
109—237
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12
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
was
adopted
on
the
/-~---~—
day
of
~y~7-_~~
,
1990,
by
a
vote
of
7~
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Dorothy
M.
Gu~n,Clerk
Illinois
Poll/ution Control
Board
109—2 40
