ILLINOIS POLLUTION CONTROL
    BOARD
    January 25, 1990
    IN TE-~E MATTER OF:
    R89—2
    UIC UPDATE, USEPA REGULATIONS
    )
    (Identical
    in Substance Rulenaking)
    (7—1—88 THROUGH 12—31—88)
    FINAL ORDER.
    ADOPTED RULE.
    OPINION OF THE BOARD (By J. Anderson):
    By a separate Order, pursuant to Sections 22.4(a) and 13.(c) of the
    Environmental Protection Act (Act), the Board is amending the Undergrc’~nd
    :njection Control (UIC) regulations.
    Section 22.4 of the Act governs adoption of regulations establishing the
    ECRA program in Illinois. Both Sections 22.4(a) and 13(c) provide for quick
    adoption of regulations which are “identical in substance” to federal
    regulations. Because this rulemaking is not subject to Section 5 of the
    ~dministrative Procedure Act, it is not subject to first notice or to second
    notice review by the Joint Corrrnittee on Administrative Rules (JCAR). The
    federal VIC regulations are found at 40 CFR 144 and 146 (and a new part, l48~
    This rulemaking updates UIC rules to correspond with federal amendments during
    the period August 1 through December 31, 1988. The Federal Registers utilized
    are as follows:
    52 Fed. Reg. 46963
    December 10, 1987
    53 Fed. Reg. 28147
    July 26, 1988
    53 Fed. Reg. 30918
    August 16, 1988
    53 Fed. Reg. 34086
    September 2, 1988
    53 Fed. Reg. 37294
    September 26, 1988
    53 Fed. Reg. 37410
    September 26, 1988
    53 Fed. Reg. 37934
    September 26, 1988
    53 Fed. Reg. 41601
    October 24, 1988
    Usually, State UIC and RCRA program updates are divided into their
    traditional parts, UIC in 35 Ill. Adm. Code 704, 730, and now 738, and RCRA in
    35 Ill. Adm. Code 703, 705, and 720 through 729, with minimal overlap.
    However, the present DIC and RCRA program updates, involved in R89-l and this
    docket, have more overlap than usual. The result is that along with the usual
    UIC Illinois sections being addressed in this update, this update also
    addresses the amendments to 35 Ill. Adm. Code 702, 705 and 720. The RCRA
    update, R89-1, adopted the July through December 1988 amendments to 35 III.
    Mm. Code 703, 721, 724 through 726, and 728, on September 28, 1989.
    Various sections of the federal UIC program were amended to allow Indian
    Tribes to be treated as states for purposes of administering an Underground
    Injection Control Program. There does not appear to be a need to adopt these
    aoendments because there do not appear to be any Indian tribes in Illinois.
    This conclusion is based on the fact that no Illinois tribes are listed on the
    Federal recognition list kept by the Secretary of the Interior. Listing on
    this recognition list is the first of four eligibility criteria under Section
    1451 of the SDWA for treatment of Indian Tribes as states. Thus, the Board
    107—369
    2
    does not adopt these rules pursuant •to Section 7.2(a)(l) of the Act, the
    inapplicability exemption from the identical in substance rulemaking mandate.
    35 Iii. Adm. Code 704 has been amended to include a new Subpart H: ISSUED
    PERMITS. This Subpart is composed of Sections from 35 Ill. Adm. Code 702.183
    through 702.187 (except 702.186), with language applicable only to RCRA
    permits removed, so that only UI~permits are addressed.
    HISTORY OF RCRA, UST and UIC ADOPTION
    NOTE: For greater clarity, the Board is employing an alternative format
    t.o that previously used for the following historical summary of RCRA, UST, and
    UIC adoption. This alternative format includes updated information not part
    of the summaries in prior RCRA, UST, and UIC opinions.
    The Illinois UIC regulations, together with more stringent state
    regulations particularly applicable to hazardous waste, include the following:
    702 RCRA and UIC Permit Programs
    703 RCR~ 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 procedures for RCRA cases are included in Parts 102, 103, 103
    and 106.
    The Board has adopted and amended the Resource Conservation and Recovery
    Act (RCRA) hazardous waste rules in several dockets. Dockets R81—22 and R82-
    18 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 approval of the Illinois RCRA program on January
    31, 1986, at 51 Fed. Reg. 3778 (January 30, 1986). USEPA granted approval to
    revisions to the Illinois program and partial Hazardous and Solid Waste
    Amendments (HSWA) approval effective March 5, 1988, at 53 Fed. Reg. 126
    (January 5, 1988). The entire listing of all RCRA identical in substance
    rulemakings follows (with the period of corresponding federal revisions
    indicated in parentheses):
    107—370
    3
    R81—22
    45 POE 317, September 16, 1981 & February 4, 1982; 6 Ill.
    Beg. 4828, April 23, 1982, effective May 17, 1982. (5/19/80
    through 10/1/81)
    R82—18
    51 FOB 31, January 13, 1983; 7 Ill. Beg. 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. Beg. 200, January 6,
    1984, effective December 27, 1983. (Corrections to R82—l0)
    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. Beg. 968, January 17, 1986, effective January 2, 1986.
    (4/25/84 through 6/30/85)
    R86—1
    71 PCB 110, July 11, 1986; 10 Ill. Beg. 13998, August 22,
    1986, effective August 12, 1986. (7/1/85 through 1/31/86)
    B86—l9
    73 FOB 467, October 23, 1986; 10 Ill. Beg. 20630, December
    12, 1986, effective December 2, 1986. (2/1/86 through
    3/31/86)
    R86—28
    75 P08 306, February 5, 1987; and 76 FOB 195, March 5, 1987;
    11 Ill. Beg. 6017, April 3, 1987, effective March 23, 1987.
    Correction at 77 PCB 235, April 16, 1987; 11 Ill. Reg. 8624,
    May 1, 1987, effective April 21, 1987. (4/1/86 through
    6/30/86)
    R86—46
    79 POE 676, July 16, 1987; 11 Ill. Beg. 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 POE 491, December 3, 1987; 12 Ill. Beg. 2450, January 29,
    1988, effective January 15, 1988. (1/1/87 through 6/30/87)
    R87—32
    Correction to R86—l; 81 FOB 163, September 4, 1987; 11 Ill.
    Beg. 16698, October 16, 1987, effective September 30, 1987.
    P.87—39
    90 POE 267, June 16, 1988; 12 Ill. Beg. 12999, August 12,
    1988, effective July 29, 1988. (7/1/87 through 12/31/87)
    R88—16
    November 17, 1988; 13 Iii. Beg. 447, January 13, 1989,
    107—371
    4
    effective December 28, 1988. (1/1/88 through 7/31/88)
    P.89—1
    September 13, 1989; 13 Ill. Beg. 18278, November 27, 1986,
    effective November 13, 1989. (8/1/88 through 12/31/86)
    R89—9
    Proposal for Public Comment December 6, 1989; 14 Ill. Beg.
    72, January 5, 1990. (1/1/89 through 6/30/89)
    On September 6, 1984, the Third District Appellate Court upheld the
    Board’s actions in adopting P.82—19 and P.83—24. (Commonwealth Edison Cc. 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 POB 247, November 21, 1984; B Ill. Beg. 24562, December
    21, 1984, effective December 11, 1984.
    This was repealed by P.85—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
    Erivirite (the date of the corresponding federal action is included in
    parentheses):
    R85—2
    69 PCB 314, April 24, 1986; 10 Ill. Beg. 8112, May 16, 1986,
    effective May 2, 1986. (9/13/85)
    P.87—3D
    90 POE 665, June 30, 1988; 12 ILl. Reg. 12070, July 22,
    1988, effective July 12, 1988. (11/14/86)
    The Board has adopted special procedures in Parts 101, 102, and 104 for
    cases involving the RCRA regulations:
    P.84—10
    62 FOB 87 & 349, December 20, 1984 & January 10, 1985; 9
    Ill. Beg. 1383, February 1, 1985, effective January 16,
    1985.
    The Board also adopted special procedures to be followed in certatr.
    determinations under Part 106. The Board adopted these Part 106 special
    procedures in P.85—22 and amended them in P.86-46, listed above.
    The Board has also adopted requirements limiting and restricting the
    landfilling of liquid hazardous wastes, hazardous wastes containing
    halogenated compounds, and hazardous wastes generally:
    R81—25
    60 POE 381, October 25, 1984; 8 Ill. Beg. 24124, Dececher
    14, 1984, effective December 4, 1984.
    P.83—28
    68 PCB 295, February 26, 1986; 10 Ill. Beg. 4875, March 21,
    1986, effective March 7, 1986.
    107—37 2
    5
    P.86—9
    Emergency regulations adopted at 73 FOB 427, October 23,
    1986; 10 Ill. Beg. 19787, November 21, 1986, effective
    November 5, 1986.
    The Board’s action in adopting emergency regulations in P.86—9 was
    reversed by the First District Court of Appeals. (Citizens for a Better
    Environment v. FOB, 152 Ill. App. 3d 105, 504 N.E.2d 166 (1st Dist. 1987).)
    Hearings on permanent rules are pending.
    The Board has adopted and amended Underground Injection Control (UIC)
    regulations in several dockets to correspond with the federal regulations.
    One such docket, P.82-18, was a P.ORA docket. USEPA authorized the Illinois UTO
    program on February 1, 1984, at 49 Fed. Reg. 3991. The entire listing of all
    UIO rulernakings follows (with the period of corresponding federal revisions
    indicated in parentheses):
    R81—32
    47 FOB 93, May 13, 1982; 6 Ill. Beg. 12479, October
    15,
    1982, effective February 1, 1984. (7/7/81 through ll/23/8i~
    P.82—18
    51 FOB 31, January 13, 1983; 7 Ill. Beg. 2518, March 4,
    :983, effective May 17, 1982. (11/11/81 through 6/24/82)
    P.83—39
    55 P03 319, December 15, 1983; 7 Ill. Beg. 17338, December
    20, 1983, effective December 19, 1983. (4/1/83)
    P.85—23
    70 POE 311 & 71 PCB 108, June 20 & July 11, 1986; 10 Ill.
    Beg. 13274, August 8, 1986, effective July 28 & 29, 1986.
    (5/11/84 through 11/15/84)
    P.86—27
    Dismissed at 77 FOB 234, April 16, 1987. (No USEPA
    amendments through 12/31/86).
    P.87—29
    85 POE 307, January 21, 1988; 12 Ill. Beg. 6673, April 8,
    1988, effective March 28, 1988. (1/1/87 through 6/30/87)
    P.88—2
    90 POE 679, June 30, 1988; 12 Ill. Beg. 13700, August 26,
    1988, effective August 16, 1988. (7/1/87 through 12/31/87)
    P.88—17
    December 15, 1988; 13 Ill. Beg. 478, January 13, 1989,
    effective December 30, 1988. (1/1/88 through 6/30/88)
    P.89—2
    This Docket. (7/1/88 through 12/31/88)
    The Board adopted Underground Storage Tank (UST) rules in P.86-1 and R86-
    28, which were also RORA update Dockets. The Board updated the UST
    regulations to correspond with USEPA amendments in several dockets. (JSEPA has
    not yet authorized the Illinois UST program. The entire listing of all UST
    rulemakings follows (with the period of corresponding federal revisions
    indicated in parentheses):
    107—373
    6
    R86—1
    71 PCB 110, July 11, 1986; 10 Iii. Beg. 13998, August 22,
    1986, effective August 12, 1986. (7/1/85 through 1/31/86)
    P.86—28
    75 PCB 306, February 5, 1987; and 76 POE 195, March 5, 1987;
    11 Ill. Beg. 6017, April 3, 1987, effective March 23, 1987.
    Correction at 77 POE 235, April 16, 1987; 11 Ill. Req. 8684,
    May 1, 1987, effective April 21, 1987. (4/1/86 through
    6/30/86)
    P.88—27
    April 27, 1989; 13 Ill. Beg. 9519, June 23, 19~9, effectivo
    June 12, 1989. (9/23/88)
    P.89—4
    July 27, 1989; 13 Ill. Beg. 15010, September 22, 1989,
    effective September 12, 1989. (10/26/88)
    P.89-10
    Proposal for Public Comment November 15, 1939; 14 Ill. Reg.
    153, January 5, 1990. (10/27/88 through 6/30/89)
    GENERAL DISCUSSION
    The amendments are discussed in detail below. The following generally
    describes the USEPA actions encompassed by this rulemaking. The complete
    Federal Register citations are given above. All dates are 1988 unless
    otherwise stated.
    December 10, 1987
    BCP.A permits may become UlO permits under
    certain circumstances.
    July 26
    Prohibitions of Underground Injection of
    Hazardous Waste.
    August 16
    Amends effective dates of mandated prohibitions
    on the underground injection of wastes from the
    “California list” wastes and certain wastes iro:i
    the “First Third” wastes.
    September 26
    Oxygen Activation (OA) tool to test fluid
    migration
    October 24
    Corrects error concerning effective dates
    prohibiting the injection of certain wastes.
    PUBLIC COMMENTS
    The Board received four public comments on the proposed amendments. The
    Office of the Secretary of State Administrative Code Division (Code Unit)
    submitted two public comments: public comment number one (PO# 1), received
    December 11, 1989, and public comment number two (PC# 2), received December
    21, 1989. The Joint Committee on Administrative Rules (JCAR) submitted public
    comment number three (PC# 3), which the Board received December 19, 1989. The
    Board received public comment number four (PC# 4) from the United States
    Environmental Protection Agency Region V (USEPA) on January .9, 1990.
    107—374
    7
    Most of the comments and resulting revisions concern minor editorial
    corrections to the text of the proposed rules. Some of the comments ar.d
    revisions, however, relate to more substantive aspects of the Board’s
    proposal. The public comments and resulting revisions of both types are
    discussed below under the appropriate section headings as part of the detaied
    discussion. One set of comments, all part of PC# 3 from JOAR, relate to the
    timeliness of Board adoption of the USEPA amendments involved in this update.
    The Board responded directly to JOAR and will not discuss this public corrme:-.t
    in this opinion because it does not relate to the substance of the proposed
    amendments.
    The detailed discussion that follows indicates each topic on which the
    Board invited public comment. The Board construes silence as affirmation on
    the Board’s approach to each topic.
    DETAILED DISCUSSION
    The amendments have been edited to establish a uniform usage with
    respect to “shall,” “must,” “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 to the sentence. “Will”
    :3
    used when the Board obligates itself to do something. “May” is used when a
    provision is optional. Some of the USEPA rules have sentence construction
    problems, or appear to say something other than what was intended. Others
    oct read correctly when the Board or IEPA is substituted into the federal
    rule. The Board does not intend to make any substantive change in the rua-s
    by way of these edits.
    PART 702
    SUBPART C: PERMIT CONDITIONS
    Section 702.152
    This Section is drawn from 40 CFR 144.51 and 270.30, which was amended
    at 53 Fed. Beg. 37934. The BORA only provision has been placed in Section
    703.247, discussed in P.89—i.
    Section 702.160
    This Section is drawn from 40 CFR 144.52(a) and 270.32(a). 40 OFR
    270.40 was amended at 53 Fed. Beg. 28147. The amendment requires the Agency
    to establish UIC permit conditions based on new requirements, included
    elsewhere in this rulemaking.
    PC# 4 asserts that the appropriate citation in the Board Note to
    existing subsection (c) should appear as 40 CFB 144.52(c), rather than 40 C8~.
    144.51. The Board observes that this Board Note did not undergo amendment
    during this update. The Board further observes that virtually identical
    language appears in the preamble to 40 CFR 144.51 as appears at 40 OFR
    144.52(c). Nevertheless, the Board will amend the Board Note to indicate that
    107—375
    8
    40 CFR 144.52(c) is the federal counterpart to 35 Ill. Adm. Code 702.160(c).
    The thrust of 40 CFB 144.52 is more specific to establishing permit
    conditions.
    SUBPART D: ISSUED PERMITS
    Section 702.181
    This Section is drawn from 40 CFR 144.35 and 270.40. 40 OFR 270.40
    ‘.;aO
    amended at 53 Fed. Beg. 28147. The federal amendment references the new
    procedures for permit modifications discussed below. The existing federal and
    State text differ in a substantive way, in that, while a RCRA
    or
    UlO permit
    provides a partial shield against federal enforcement, it provides none under
    State law. The text has also been modified to reference “reissuance” of
    permits, which is discussed below in connection with Section 703.270 et seq.
    PO# 4 observes that the Board has added to the text of Section
    702.181(c) the clause, “except as noted in subsection (a),” which does not
    appear at 40 CFP. 144.35 (c). First, the Board observes that this clause is
    not part of the present update; it is existing regulatory text adopted in RPl—
    31 on August 18, 1982. The Board believes that this clause avoids potential
    conflict in interpretation of subsections (a) and
    (0)
    and constitutes a clear
    statement of Illinois law. Further, it does not render this section
    inconsistent with the federal provision. The Board will not revise this
    subsection to delete the clause.
    The Board notes one item in the existing text of subsection (a),
    although no correction is necessary to this section. As noted in the Boards
    Order of September 13, 1989 in P.89—1, the Board has systematically deleted the
    word “revoked” wherever it appears throughout the UIO and RCRA rules. USEPA
    systematically uses “revocation and reissuance” in a non-punitive sense
    throughout its permitting rules. Permit revocation has punitive enforcement
    implications, see Section 702.186, so the Board has substituted “reissue” in
    its rules
    where “revoke and reissue” appears in the federal rules.
    This is
    important to this docket in light of the fact that PO# 4 raises this issue
    with regard to 35 Ill. Adm. Code 704.260 through 704.262, as discussed below.
    However, the appearance of “revoke” in the text of Section 702.181 is proper
    because the use is intended pursuant to an enforcement action and is
    consistent with Section 702.186.
    Sections 702.182 through 702.185 and 702.187
    These Sections are drawn from 40 CFR 144.38 and 270.40, which were
    amended at 53 Fed. Beg. 37934. The general and RORA
    only provisions
    in this
    and the following Sections have been moved to new Sections 703.260 et seq.,
    adopted in P.89—i, and the general and UIC only provisions have been moved to
    Section 704.260 et seq. This format change is necessitated by the extensive
    amendments to the RCRA permit modification procedures, discussed in P.89—i.
    107—376
    9
    PART 704
    SUBPART D: APPLICATION FOR PERMIT
    Section 704.161
    This Section, drawn from 40 CFR 144.31(a), is amended at 52 Fed. Reg.
    46965, December 10, 1987. This amendment was inadvertently omitted from the
    previous UIO or RCP.A update. The amendment to subsection (a) adds that a P.CRA
    permit may constitute a 010 permit for hazardous waste injection wells if the
    requirements of 35 Ill. Adm. Code 724.Subpart X are met. The Board adopted
    Subpart X September 28, 1989 in P.89—i.
    In response to PC# 2, the Board has revised the proposed text of the
    Source Note to this section to omit past amendments and its docket numbers,
    which all appear in the main source note to Part 704.
    SUBPART E: PERMIT CONDITIONS
    Section 704.181
    This Section was drawn from 40 CFR 144.51, and amended at 53 Fed. Reg.
    28147, July 26, 1988. The amendment to subsection (b) requires permittees to
    keep records in accord with the new Subpart G, if appropriate. Also,
    subsections (c)(2) and (d) have been given headings.
    SUBPART H: ISSUED PERMITS
    This Subpart is composed of recodified Sections from certain Sections of
    Part 702.Subpart D, absent RCRA only language. Sections 702.182, 702.183,
    702.184, 702.185
    and 702.187 are repealed. The Sections correspond as
    follows:
    702.181 (Effect of Permit)
    remains 702.181
    702.182 (Transfer)
    is now 704.260
    702.183 (Modification)
    is now 704.261
    702.184 (Causes for Modification)
    is now 704.262
    702.185 (Facility Siting) is now 704.263 (Well Siting)
    702.186 (Revocation)
    remains 702.185
    702.187 (Minor Modifications)
    is now 704.264
    One section in this new Subpart, Section 704.262, has also been amended.
    PC# 4 observes that the Board omitted language from Sections 704.260
    through 704.262 that would apply to revocation and reissuance of permits. For
    the reasons discussed above for Section 702.181, the Board’s intent was to
    delete the reference to revocation and substitute “reissue” for “revoke and
    reissue.” The Board erred by deleting “or reissue” from the text as it
    appeared at Sections 702.182 through 702.184. Therefore, the Board restores
    the phrase “or reissue” to the text of Sections 704.260 through 704.262, where
    10 7—37 7
    10
    appropriate. However, the Board refrains from adding any reference to
    revocation to these sections.
    PO# 4 also questions why the Board did not adopt a counterpart to 40 CFR
    144.40, which relates to termination of permits. As discussed in the Board
    Orders of May 13, 1982, in P.89—32, and July 26, 1983, in P.82—19, termination
    is a punitive measure appropriate in enforcement proceedings. Such a
    provision conferring such authority on the Agency is inappropriate in Part
    704. Rather, 35 Ill. Adm. Code 702.186, which states the circumstances under
    which the Board may revoke a permit are essentially identical to the bases for
    termination stated at 40 CFR 144.40(a).
    Section 704.260
    This section derives from 40 CFR 144.38 (1988) and is recodified from 35
    Ill. Adm. Code 702.182. USEPA did not modify the corresponding federal
    provision during this update cycle.
    PO# 2 notes an error in the Source Note, which the Board corrects for
    the reasons discussed above re Section 704.161. PO# 3 observes a typographic
    error in the Board Note relating to the corresponding federal rule number.
    The Board corrects “40 CFR 144.39” to 40 CFR 144.38.”
    Examination of the text of Section 704.260(a) reveals another
    typographic error. Former Section 702.182, from which Section 704.260
    derives, refers to “Sections 702.183 through 702.185” and “Section 702.187(d)
    with regard to modification and reissuance of permits. These are now codified
    as Sections 704.261 through 704.264. However, the text of the proposed rule
    erroneously referred to “Sections 704.161 through 704.164.” The Board has
    made this correction in the adopted rule.
    Section 704.261
    This provision derives from 40 CFR 144.39 (1988) and is recodified from
    35 Ill. Mm. Code 702.183. USEPA did not modify the corresponding federal
    provision during this update cycle.
    PC# 2 points out an error in the Source Note, and the Board makes the
    appropriate correction. PO~3 asserts that the Board may have erred by citing
    40 CFR 122.15 as the corresponding federal provision. The Board corrects the
    Board Note to cite 40 CFR 144.39 as the federal source of this section.
    Section 704.262
    This Section, entitled Causes for Modification, derives from $0 CFR
    144.39, as amended at 54 Fed. Reg. 28147 on July 26, 1988. USEPA amended
    subsection (a) by deletion of the words, “but not reissuance” in the first
    sentence. Also, the second sentence now provides that for Classes I and I1
    hazardous waste injection wells, the following may be causes for reiss:iance as
    well as modification. For all other wells, the following may be cause for
    reissuance and modification upon request or agreement of the perrnittee. In
    107—378
    ii
    subsection (a)(3), not only may just Class III wells be modified during their
    terms for cause, but now so may Class I hazardous waste injection wells.
    Due to the addition of a new paragraph, subsection (b) was divided into
    a subsections (1) and (2). The new subsection (2) provides that a permittee
    may request modification of a permit when a determination that the waste being
    injected is a hazardous waste as defined in 35 111. Adm. Code 721.103 either
    because the definition has been revised, or because a previous determination
    has been changed.
    Board examination of the text of subsection (a) reveals that the
    proposed text substituted “and” where “as well as” appears in 40 OFR
    144.39(a), as amended at 54 Fed. Peg. 28147. The Board changes the adopted
    rule to use the federal language.
    PART 705
    SUBPART B: PERMIT APPLICATIONS
    PC# 1 notes that the Board neglected to strike “or Revocation” from the
    heading of Section 705.128 in the table of contents as it struck this from the
    heading in the text of the rules. The adopted amendments correct this
    oversight. PC# 1 also observes necessary revisions to the Authority Note,
    which the Board also adopts.
    Section 705.128
    This Section was drawn from 40 OFR 124.5, amended at 53 Fed. Reg. 37934,
    September 26, 1988. Subsection (c) has been entitled “Agency Modification
    Procedures.” The substantive amendment to subsection (c)(i) provides that for
    reissued permits, the Agency shall require the submission of a new
    application. Also, subsection (c)(3) was amended to exempt Class I and II
    wells as defined in 35 Ill. Adm. Code 702.110 from the requirements of the
    Section.
    In response to PC# 1, the Board deletes “Illinois” from subsection
    (C)
    because the official name is “Environmental Protection Act.”
    SUBPART D: PUBLIC NOTICE
    Section 705.163
    This Section was drawn from 40 CFR 124.10(c), amended at 53 Fed. Reg.
    28147, July 26, 1988, and 53 Fed. Reg. 37410, September 26, 1988. The first
    amendment to this Section, made in July, applies to all Class I wells,
    including injection wastes not yet subject to prohibition, those injecting
    wastes which meet the treatment standards, and those whose wastes have been
    banned and which have received an exemption under Part 738. The amendment
    adds a new subsection (a)(6) which requires that for Class I UIC permits only,
    public notice must be given to the Illinois Department of Mines and Minerals.
    The current subsection (a)(6) is redesignated (a)(7).
    107—379
    12
    The September amendment relates to Indian tribes, thus it is not
    adopted.
    PART 720
    SUBPART B: DEFINITIONS
    Section 720.110
    This Section is drawn from 40 CFR 260.10 which was amended at 52 Fed.
    Beg. 46963 and 53 Fed. Beg. 34086. These are the definitions applicable to
    Parts 720 et seq.
    In addition to the changes derived from the federal amendments, the
    Board has made a few editorial revisions to these definitions. Several of
    these concern references to federal rules or statutes. As has been discussed
    in previous opinions, these are of concern because they may be subject to the
    APA limitations on incorporations by reference. The Board has attempted
    either to clearly make each incorporation by reference in compliance with the
    APA, or to clearly make it not an incorporation by reference. In the latter
    case, among the options are for the Board to eliminate unnecessary references,
    to replace federal references with derivative State rules, or to reword
    provisions so that the rule references federal actions rather than rules.
    The Board has amended the definition of “designated facility” to remove
    unnecessary federal references. This term refers to the facility listed by
    the generator on the manifest to receive the hazardous waste shipment.
    Section 722.120 requires that the generator designate a facility with a RCRA
    permit or interim status. It is complicated to state this, since the
    receiving facility could be located out—of-State, and hence have a RORA perr:t
    from USEPA or another authorized state. It is not necessary to repeat the
    limitation on designated facilities in both the definition and the operative
    Section.
    The definition of “elementary neutralization unit” was amended at 53
    Fed. Beg. 34086. The main change appears to be the addition of “tank systers’
    to the list of units which could be an elementary neutralization unit. ~f~e
    Section 702.110 discussion.
    The definition of “landfill” was amended at 52 Fed. Reg. 46963, adding
    to the list of specific units which are not “landfills”.
    The definition of “miscellaneous unit” has also added at 52 Fed. Beg.
    46963, which added the regulations applicable to miscellaneous units. The
    Board has added “tank system” to the list of units which are not
    “miscellaneous units.” This change is parallel to the changes made at 53 Fed.
    Reg. 34086, and probably represents an error made by USEPA because different
    offices were working with out-of-date copies of the rules.
    The definition of “POTW” has been modified to replace federal references
    with a derivative State definition, adopted with the pretreatment rules in
    P.86—44 in 35 Ill. Adm. Code 310.
    107—380
    13
    The definition of “wastewater treatment unit” was amended at 53 Fed.
    Reg. 34086. The main change is again to add “tank systems” to the list of
    units. The Board has also replaced the references to the federal Clean Water
    Act with references to the derivative State rules in Parts 309 and 310. To be
    exempt from the hazardous waste rules, a wastewater treatment unit either has
    to have an NPDES permit under Part 309, or a pretreatment permit or
    authorization to discharge, issued by the Agency or authorized by POTW, under
    Part 310.
    The USEPA language exempts units “subject to regulation under the Clean
    Water Act. This is subject to the interpretation that a facility which is
    required to, but does not have an NPDES permit would thereby be exempt from
    the hazardous waste rules. This is probably not what USEPA intends. As
    amended by the Board, the exemption would extend only to those units which
    have required the permits.
    The Board corrects the main Source Note in response to PC# 1 by deleting
    “as” from the last reference.
    Section 720.111
    The sole amendment to the incorporations by reference Section is the
    addition of a single reference. This reference, “Technical Assistance
    Document: Corrosion, Its Detection and Control in Injection Wells,” is
    referred to in the amendment to Section 730.162. It is a guidance document
    for use by the regulated community published by the USEPA Office of Drinking
    Water State Programs Division. Other amendments, made in R89-1 and primarily
    limited to updating incorporations by reference, are discussed in that
    opinion.
    PC# 3 points out that the Proposed Order of October 5, 1989 discussed
    several other revisions to this section. As noted in the direct response to
    JCAR, there was a strong link between R89—l, the parallel RCRA update, and
    this docket. Several amendments went back and forth between the two dockets.
    The additional amendments discussed in the Proposed Opinion in this docket
    actually occurred in The Board’s Order of September 13, 1989 in P.89—i. The
    inclusion of the additional discussion in the Proposed Opinion was erroneous,
    and the Board has deleted it from this Opinion.
    PC# 3 also requested identification of the Board or federal rule that
    requires reference to the added USEPA Technical Assistance Document. The
    Board replied directly to JCAR that new Section 730.165(b) refers to this
    document, although corresponding 40 CFB 146.65(b) refers to other, unspecified
    documents. This is further discussed below with Section 730.165.
    PART 730
    This Part was drawn from 40 CFR 146, amended by 53 Fed. Reg. 28148 on
    July 26, 1988. It applies to owners or operators of wells injecting hazardous
    wastes, including those injecting wastes not yet prohibited, those which meet
    treatment standards or which have been banned under 35 Ill. Adm. Code 728 or
    738. Part 730 differs from the new Part 738 in that Part 730 requirements are
    107—3~31
    14
    necessary to effectively regulate hazardous waste injection which has not been
    banned and is therefore not subject to Part 738 requirements. Part 730 also
    assures that USDW’s are not endangered from formation fluids.
    September 26th Federal Interim Approval amendment, at 53 Fed. Reg.
    37294, applying to all injection wells, provides for granting interim approval
    until October 26, 1990 for use of the Oxygen Activation (OA) tool for test
    fluid migration adjacent to the injection well bore as an alternative to the
    tests for mechanical integrity specified in 40 OFR 146.8(c) (Part 730.108(c)).
    USEPA is still requesting comments and further data on the viability of this
    alternative. At the end of the two year interim approval, the USEPA will
    issue a final determination on its use as an alternative to existing tests for
    demonstrating the absence of fluid movement behind the casing.
    It is the Board’s opinion that since the USEPA has not yet adopted a
    final rule, the mandate requiring Illinois to adopt this rule does not apply.
    Also, Section 730.108(d) currently allows for the possibility of the Oxygen
    Activation Test if the owner or operator can demonstrate the mechanical
    integrity of wells for which its use is proposed. For these reasons, the
    Board is not amending 35 Ill. Adm. Code 730.108(a) at this time. The Board
    invited comment.
    Two revisions are made to the table of contents. The Board corrects the
    heading to Subpart B, by underlining “NON-HAZARDOUS” to correlate with how
    this appears in the body of the text. The Board also corrects the Authority
    Note. This is in response to PC# 2. In response to PO# 4, the Board changes
    the heading for Section 730.168 to agree with its appearance in the body of
    the rules.
    SUBPART A: GENERAL
    Section 730.101
    This Section, drawn from 40 CFR 146 generally, is affected by a Federal
    Extension of Interim Approval a 53 Fed. Beg. 37296, September 26, 1988. The
    federal extension adds
    six
    months, from September 26, 1988 to March 27, 1989,
    for using alternatives to test the mechanical integrity of an injection wells’
    tubular goods. Since the six month extension deadlines have passed, this
    amendment is not adopted. Another minor amendment was made to replace the
    language of ‘EOn or after the date of approval by the United States
    Environmer.tal Protection Agency (USEPA) of the Illinois 010 program” to the
    actual date of approval as published in the Federal Register, February 1,
    1984. (See discussion under Section 730.103.)
    In response to PO# 2, the Board corrects subsection (a) by capitalizing
    “Part” where it appears.
    Section 730.103
    Minor changes have been made throughout this definition Section. One
    notable change is in the definition of “Date of approval by USEPA of the
    Illinois 010 program.” Pr~-.iiously, it has been defined as “the date on ~
    107—382
    15
    USEFA delegates primacy for the UIC program for Class I, III, IV and V wells
    to the State of Illinois pursuant to Section 1422 of the SDWA and 40 OFR 123.”
    It has been revised to be defined as February 1, 1984, the date of the Federal
    Register notice of approval of the Illinois Program. (49 Fed. Beg. 3991).
    Note, however, that the effective date of the program is listed as March 3,
    1984 at 40 CFR 147.700. Subpart 0. A similar change was made in the
    definition of “Effective date of the UIC program”. Public comment was
    solicited on whether the Board should use the February .1 or March 3, 1984
    date, and why.
    The Board also makes several editorial revisions. The Board adds the
    Federal Public Law numbers to the definition of “Act” and removes the parallel
    definition title “or RCRA.” The Board then deletes the present definition of
    “RORA” in favor of defining it as “Act”. The Board removes “his” from the
    definition of “Director” in favor of gender-neutral language. The Board
    further adds to the definitions of “Radioactive Waste” and “Total Dissolved
    Solids” two incorporations by reference that refer to 35 Ill. Mm. Code
    720.111.
    The Board corrects the definitions of “Act” and “SDWA” by changing “Pub.
    L.” to “P,L.” in response to PO# 2. In response to PC# 3, the Board adds a
    space before “as” in the definition of “Act.” Also in response to PO# 2, the
    Board revises the order in which the definitions of”Oonventional mine” and
    “Well monitoring” appear, so that all the definitions appear in alphabetical
    order in the adopted amendments. PC# 2 further highlights an error in the
    definition of “Environmental Protection Act. This is corrected by updating
    the definition to the 1987 version of the Illinois Revised Statutes and the
    1988 Supplement, because there is no 1988 version, and by referencing all the
    Act by referring to Sections 1001 through 1052, rather than only referring to
    Section 1001.
    PC# 3 questions why the Board did not earlier update the definition of
    “Effective date of the UIC program” or, alternatively, use a full-blown APA
    Section 5 rulemaking proceeding to do so at this late date. The Board
    responded directly to JCAR that this update did not occur earlier due to
    oversight and that Section 7.2 of the Act, rather than Section 5 of the ABA,
    is the appropriate route to make this minor corrective update to render the
    Board’s rules identical in substance to the federal rules. PO#4 states that
    the February 1, 1984 date is correct, and that the March 3, 1984 date which
    appears at 40 CFR 147.700 is wrong, but USEPA asserts, without reasons, that
    the Board should not revise the definition to use the actual date of federal
    approval. The Board will use the actual date for the convenience of the
    regulated community.
    SUBPART B: CRITERIA AND STANDARDS APPLICABLE TO CLASS I WELLS
    Section 730.111
    This Section is drawn from 40 CFR 146.11, amended by 53 Fed. Reg. 28148,
    July 26, 1988. The amendment states that Subpart B now applies only to Class
    I non-hazardous wells. The Subpart previously applied to all Class I wells.
    The Board also amends the Subpart heading to include the word non-hazardous.
    107— 38 3
    16
    Section 730.113
    Derived from 40 OFR 146.13, this Section is amended by 53 Fed. Beg.
    28248, July 26, 1988. This amendment adds a subsection (d) providing for
    additional monitoring requirements. Specifically, the Agency will require
    annual pressure decay monitoring cf the injection zone. Also, the rules make
    ambient monitoring requirements site—specific, thus giving the Agency
    discretion to determine an acceptable ambient monitoring program. These
    amendments are applicable to all owners and operators of Class I wells,
    whether hazardous waste injection wells or not. The Board uses the phrase
    “permit condition” in lieu of “Agency.” The Board believes that this more
    accurately reflects how the Agency grants such approval. The Board similarly
    amenos existing references to Agency approval at 35 Ill. Adm. Code
    730.l13(a)(3) and (c)(2).
    SUBPART G: CRITERIA AND STANDARDS APPLICABLE TO CLASS I
    HAZARDOUS WELLS
    This Subpart has been adopted in the USEPA format, thus conversion is
    relatively simple.
    Section 730.161
    This Section begins the new Subpart G. It is drawn from 53 Fed. Reg.
    28148, July 26! 1988. It states the Subpart applies to Class I hazardous
    waste wells, supplementing the requirements of Subpart A, and applies instead
    of Subpart B unless otherwise noted. It also states definitions applicable to
    the Subpart.
    The Board substitutes for the 40 CFR 146.61(b) language “was authorized” in
    the definition of “existing well” with the more specific language “had a UIC
    permit or UIC permit by rule.” Which are the only two modes of authorization.
    Section 730.162
    Derived from 40 CFR 146.62, added at 53 Fed. Reg. 28148, July 26, 1988,
    this Section requires the Agency to site Class I hazardous waste injection
    wells only in geologically suitable areas and the basis upon which the Agency
    shall make its decision. Also, 40 CFR l46.62(d)(4) provides for USEPA to
    grant approvals for sites not shown to meet the general criteria. The Board
    believes that the Board may more appropriately approve a site which does not
    meet the stated requirements if the owner makes the required demonstration
    pursuant to adjusted standard procedures in 35 Ill. Adm. Code 106.
    This procedure exists at the federal level, but the procedural context
    in unacceptable under Section 7.2(a)(5) of the Illinois Environmental
    Protection Act. The action would derogate Board rules, rather than implement
    them. This action involves “determining, defining or implementing
    environmental control standards” under Section 5(b) of the Act, and there is
    language in the federal rule which would form the basis a “justification” for
    an adjusted standard.
    I fl7_3$L~
    17
    Petitioners for an adjusted standard must meet in their petitions for
    well siting the narrative standard of no endangerment of USDW5. According to
    USEPA, the most appropriate substantive guidance for making this demonstration
    is given in the Preamble to Part 730 in the July 26, 1988, Federal Register.
    PC# 3 correctly points out that subsection (d)(4) adds language at (A)
    and (B) not found in the corresponding text of 40 CFR 146.62(d)(4), as added
    at 54 Fed. Reg. 28148, July 26, 1988. The Board feels that this added
    language is necessary under the Illinois scheme, whereas it is not necessary
    on the federal level. USEPA aiready possesses information of the type
    indicated in these added provisions. Under Illinois law, only the petitioner
    and the Agency posses this information. The Board can only review this
    essential information if it is submitted by the parties to the adjusted
    standard proceeding. These two provisions place the burden of submitting this
    information on the petitioner to the extent necessary for Board review.
    Section 730.163
    Derived from 40 CFR 146.63, added at 53 Fed. Beg. 28148, July 26, 1988,
    this Section states that for Class I hazardous waste wells, the minimum area
    of review (AOR) is a two (2) mile radius around the well bore, with certain
    exceptions. For Class I hazardous wells, this local definition of AOR applies
    instead of the AOR definition stated in Section 730.106. The AOR pertains to
    the area within which the owner or operator must identify all wells
    penetrating the confining zone and the injection zone and determine whether
    they have been properly completed or plugged and abandoned.
    In some circumstances, the Agency has the discretion to require a larger
    area of review. As stated at 53 Fed. Reg. 28135, no guidance for determining
    the larger area of review is given because no single calculation, or set of
    calculations, describes the universe of acceptable methods for determining
    area of review. Also, USEPA believes that prescribing by regulation the
    appropriate method could preclude permittees from using more sophisticated
    methods which might become available at some future point.
    The Board amends the 40 CFR 146.63 language to reflect that
    authorization of a larger area of review occurs “by permit condition.” ~
    discussion of Section 730.113. The Board also adds “injection” to make the
    language appear uniformly throughout as “Class I hazardous waste injection
    wells” and convey the singular meaning and applicability of these provisions.
    Section 730.164
    Derived from 40 CFR 146.64, added at 53 Fed. Reg. 28149, July 26, 1988,
    this Section states that it applies instead of 35 Ill. Adm. Code 704.193 and
    Sectioi~730.107 for Class I hazardous waste injection wells. This Section is
    intended to work in connection with 730.170, which outlines the information
    required to demonstrate compliance during the permit process.
    This section sets forth requirements for corrective action, by requiring
    owners and operators to submit a plan outlining the protocol used for various
    listed activities as part of the application to the Agency. The Agency must
    1 07—30.5
    18
    review the plan, determine whether it is adequate and approve it, modify it,
    or deny the application. It also states possible consequences if the Agency
    finds the permittee’s plan inadequate. This section also provides that for a
    Class I hazardous well requiring corrective action other than pressure
    limitations, permits issued must include a compliance schedule requiring any
    corrective action accepted or prescribed under another Section.
    The section states the criteria and factors the Agency must consider in
    determining the adequacy of corrective action proposed by the applicant to
    prevent fluid movement into and between USDW’s.
    The Board substitutes the federal “shall apply to the exclusion of” for
    the simpler and more direct “applies instead of” in the preamble. The Board
    adds “injection” to the preamble. See discussion of Section 730.163. The
    Board adds a citation to 35 Ill. Adm. Code 702.162, the provision for
    compliance schedules, to subsections (d)(1) and (d)(3). The Board has also
    put the language of the preamble of subsection (e) in the active voice, in
    order to avoid the convoluted federal language.
    The Board adds a closing period to subsection (c)(3) in response to PC#
    3.
    Section 730.165
    Derived from 40 CFR 146.65, added at 53 Fed. Reg. 28149, July 26, 1988,
    this Section states construction and completion requirements for all existing
    and new Class I hazardous waste wells. It attempts to achieve an appropriate
    balance between specific design standards and more general performance
    standards. Specifically, the changes in construction requirements include
    additional criteria in overall performance standards, more explicit
    compatibility requirements, and certain requirements for owners and operators
    injecting through a well equipped with fluid seals.
    Also, in subsection (c)(i), the amendments more specifically articulate
    the performance standards outlined in subsection (a).
    Guidance to manufacturers as to what are acceptable compatible
    construction materials is provided in the federal language by reference to
    American Petroleum Institute standards and from an annual book of standards
    from the American Society of Testing Materials. The Board is unaware of any
    such existing standards relating to underground injection. Rather, the Board
    adds a reference to an existing USEPA Technical Assistance Document. The
    Board specifically invited comment on this, as well as to whether any API or
    ASTM standards applicable to underground injection wells presently exist.
    The Board puts the language of subsection (c)(1) into the active voice
    for clarity. The Board also substitutes “annular” for the federal “annual” in
    subsection (c)(2). The Board uses the language “specified by permit
    condition” al si.hsection (d)(1). See discussion of Section 730.113.
    PC# 4 criticizes the Board’s substitution at subsection (b) of the only
    reference it could find re.atinq to well materials compatibility fur the non—
    107—336
    19
    specific API and ASTM standards named at 40 CFR 146.65(b). The thrust of the
    criticism is that the USEPA technical guideline is dated, whereas the USEPA
    rule references to non—specific technical documents assures continued use of
    the latest science in an evolving area. First, the Board observes that the
    language of subsection (b) does not require the use of the named USEPA
    document. Rather, the rule requires a demonstration of compatibility by “any
    compatibility method specified by permit condition.” This would allow the
    Agency to specify the method used-—whether it is the USEPA guideline, an ASTM
    or API method, or some other test. The Board named the USEPA guideline in a
    non—restrictive way to provide guidance. Second, Section 6.02 of the ABA
    requires the Board to use or.ly readily defined, existing documents and not
    subsequent editions; the Board must maintain a copy of the document for public
    inspection; and the organization publishing the document must make copies
    readily available to the public. In contacting the ASTM, the API, and USEPA,
    the Board could not locate any specific document other than the one it
    references here. If iJSEPA or some other person could provide a definite
    reference to an existing and available ASTM or API compatibility testing
    method, the Board can consider amending subsection (b) to include that
    reference in a subsequent update. The Board will not revise new Section
    730.165 at this time.
    Section 730.166
    This Section is derived from 40 CFR 146.66, added at 53 Fed. Beg. 28150,
    July 26, 1988. These requirements pertaining to logging, testing and sampling
    have been consolidated into this Section from existing Sections 730.112(d) and
    730.114(b). The amendments also change these requirements in several ways.
    1) The establishment of baseline data prior to injection, against
    which future logging and testing can be reassessed, is an
    important new use of data. The future utility of many logs is
    dependent on having base logs against which to compare the data.
    Thus, the operator’s ability to demonstrate compliance at a future
    date may depend on the logs it ran when the well was first bored.
    2) Another change is more clearly stating all the listed tests that
    the owner or operator must conduct, which was less clearly worded
    in Section 730.112(d).
    3) By revising language to allow the Agency to approve an equivalent
    alternative, the use of improved tests may be considered.
    4) The mechanical integrity requirements in 740.166(d) are revised,
    so now an initial demonstration of mechanical integrity for new
    wells must be made as indicated in current 730.166(a)(3).
    5) There is now a burden on the Agency to require more coring and for
    the operator to conduct it.
    6) The Agency may require coring of other formation types.
    107—387
    20
    7) Owners and operators must also conduct pump or injectivity tests,
    in order to identify hydrogeologic properties of the injection
    zone through the empirical method.
    The Board revised the text from 40 CFR 146.66. It puts the first
    sentence of the preamble to subsection (a) into the active voice for clarity.
    The Board also changes the verb, “are” to ‘~is”in subsection (a)(l). The
    subject of this first sentence of (a)(l) appears to be “a pilot hole,” rather
    than “deviation checks.” The Board also repunctuates subsections
    (a)(2)(A)(ii) and (a)(2)(B)(ii) because subsections (a)(2)(A) and (a)(2)(B)
    are elements of a series within a larger series, subsection (a)(2), which in
    turn is an element in the series of subsection (a). The Board believes that
    this, combined with the overall subsection structure would add clarity. The
    Board stipulates “by permit condition” in subsections (a)(3)(D) and (a)(3)(E).
    See discussion of Section 130.113. The Board also adds “not less than” to the
    federal language corresponding to subsection (f). This would clarify that
    this is a minimum time requirement. The Board invited comment.
    PO# 4 points out that the Board uses “The Agency shall allow” at
    subsection (a)(2)(C), whereas USEPA uses “The Director ~y allow” at 40 CFR
    146.66(a)(2)(iii). In light of the discussion on usage on pages seven and
    eight of this Opinion, the Board makes one further observation: Illinois law
    requires the Agency to grant a permit where the permittee has demonstrated
    that the permit, if granted, would not cause a violation of the Act or Board
    rules. If the threshold criterion for USEPA allowing use of an alternative to
    the required logs is that the alternative or better information, the Agency
    must allow use of the alternative in the Illinois scheme. Therefore, use of
    “shall” is more appropriate in the Illinois scheme.
    The significance of USEPA’s comment reaches beyond this provision. It
    raises a fundamental question with regard to the entire Illinois UIO
    regulatory scheme. Despite PO# 4’s criticism that use of “shall” throughout
    the rules in place of the federal “may” might render the Board’s rules less
    stringent than the federal rules, the Board cannot agree. Once a threshold
    standard for administrative decisionmaking is enunciated in the body of a rule
    and the regulated entity has demonstrated the requisite proof stated by the
    rule, any further exercise of discretion by the administrative decisionmaker
    might result in an improperly grounded decision not following the Board rule.
    Such a potentially arbitrary outcome would not likely withstand appeal. This
    could ultimately result in a regulatory scheme that is significantly less
    stringent than would have existed had the administrative agency made a proper
    decision on clear bases in the first instance. If USEPA has regulatory or
    decisionrnaking standards that do not appear in the Board’s rules, the Board
    will promptly adopt them as USEPA promulgates them or consider them as soon as
    some person submits a regulatory proposal.
    Section 730.167
    This
    Section, derived from 40 CFP. 146.67, added at 53 Fed. Req. 28i50,
    July 26, 1988, restates existing requirements more explicitly, changes some
    substantively and adds new requirements. This Section also adds a requirement
    for a waste analysis plan, establishes more precise standards for
    107—383
    21
    hydrogeological compatibility determinations, specifies the requirements for
    the compatibility of well materials and monitoring, revises and strengthens
    mechanical integrity testing, and establishes more specific ambient monitoring
    requirements.
    Subsection (c) insures that a leak in the tubing would result in annulus
    fluid moving into the tubing, not in waste moving into the annulus. The
    language “unless such a requirement might harm the integrity of the well”
    provides the Agency with discretion and flexibility to permit otherwise when a
    positive hydrostatic balance across the injection tubing could lead to loss of
    mechanical integrity.
    Specifically, the written waste analysis plan requires a description of
    how the waste will be analyzed and sampled and how the analysis will assure
    that the samples will be representative. To assure hydrogeologic
    compatibility, the operator must submit a plan which identifies anticipated
    reaction products and demonstrates that neither the waste nor the reaction
    products would adversely affect the injection or confining zone (satisfy
    requirements under Section 738.162). This amendment clarifies and adds some
    specificity to existing regulations in Sections 738.112 and 738.114, but does
    not substantially alter them.
    Current mechanical integrity tests (MITS) require the operator to check
    for fluid movement behind the casing and for leaks in the tubing, casing, or
    packer. The amendments require more frequent annulus pressure tests and
    require the operator to conduct an annulus radioactive tracer survey for wells
    injecting hazardous wastes. Also, the use of a tool to evaluate the casing is
    required before operating the well.
    The Board adds “injection” to subsection (e). ~ discussion of Section
    730.163. The Board adds “by permit condition” to subsections (g)(l),
    (i)(1)(C), and (i)(1)(D). See discussion of Section 730.113. The Board also
    substitutes “without undue delay” for the corresponding federal “as
    expeditiously as possible” in the preamble to subsection (g). The Board adds
    specific reference at subsection (h)(5) to Section 730.108, for the mechanical
    integrity demonstration requirements. Finally, the Board refers to how Agency
    approval is gained by adding “permit modification” to subsection (J). ~5fff~
    discussion of “permit condition” at Section 730.113. The Board invited
    comment on these revisions.
    PC# 4 notes that 40 CFR 146.67(g) (1) requires well shutdown “unless
    authorized by the Director” and suggests that the Board use “unless authorized
    by the Agency,” instead of “unless authorized by permit condition.” The Board
    points out that the Agency is free to authorize continued operation, but it
    must do so by granting a supplemental permit. PC# 4 apparently focuses on the
    impracticality of requiring such a permit condition as part of the initial
    operating permit because it asserts the need for case—by-case determinations
    whether a well should continue to operate after an automatic alarm or
    shutdown. The Board believes that requiring a supplemental permit condition
    for continued operation merely stipulates the manner in which the Agency
    allows continued operation on a case—by—case basis, and that the Board’s rule
    is identical in substance to the federal rule.
    107—389
    22
    PO# 4 similarly notes asserts that use of “permit modification” at
    subsection (j), rather than “Agency approval,” creates an undue administrative
    burden in the case of simple and routine well workovers. USEPA notes the need
    for case—by-case determinations on permit modifications. The Board replies
    that well workovers also need a case—by—case determination, as is recognized
    by the 40 OFR 146.67(j) requirement for prior approval. In the case of
    extensive well workovere, a permit modification may be essential. Where
    permit modification is not so essential (e.g., as for simple, routine
    workovers), the Agency could construe the modification as a “minor
    modification under 35 Ill. Adm. Code 704.264(e) for the purposes of 35 Iii.
    Adm. Code 704.261 and bypass the otherwise applicable procedural requirements
    necessary for permit modification. If anything, use of “permit modification”
    clarifies that the Agency can require permit modification where the well
    workover goes beyond simple and routine. The Board will adopt this provision
    as proposed.
    PO# 2, PC# 3, and PO# 4 all highlight a typographic error in subsection
    (i)(1). This error appears in the text of 40 CFR l46.67(i)(l), as adopted at
    54 Fed. Beg. 28151, July 26, 1988, and the Board replicated it. t.SEPA, in PC~
    4 states that “immediately case” should appear as “immediately cause.” This
    would run entirely counter to the apparent intent of this provision. Rather
    than requiring an operator to “immediately cause” the injection of wastes upon
    detection of a release into an unauthorized zone (which further exacerbates
    any possible environmental harm), the Board believes that the operator should
    “immediately cease” waste injection, as is suggested by FC# 3. This is
    consistent with the language of subsections (g) and (h), which use “stop” and
    “cease,” respectively, under related circumstances.
    Section 730.168
    This Section is derived from 40 CFR 146.68, added at 53 Fed. Beg. 28151,
    July 26, 1988. Ambient monitoring requirements are specified in 35 Ill. Adm.
    Code 730.113, and apply to all owners and operators of all Class I wells, not
    just hazardous waste injection wells. Subsection (e) restates these
    requirements which are applicable to only Class I hazardous waste injection
    wells, for easy reference.
    For seismic monitoring, it is believed that the potential for Class I
    hazardous waste injection inducing tectonic activity is minimized by a number
    of amendments, e.g. Section 730.162(b) and 730.162(c)(2)(i). However, since
    circumstances exist under which local seismic monitoring may be necessary,
    Subsection (f) provides the Agency with authority to require seismic
    monitoring on a case—by—case basis.
    The Board uses “permit condition” in subsections (a)(3), (c)(2)(O),
    (d)(5), (e)(2)(A) and (e)(2)(B). See discussion of Section 730.113.
    Similarly, the Board uses “permit” in subsection (d)(4) to show how the Agency
    “specifies otherwise.” The Board also deletes of the “to the satisfaction
    of...” phrase from subsection (b). The Agency must grant or deny permits
    within the bounds o Illinois law, and the required informational demonstration
    107--~39fl
    23
    will either satisfy or fail to satisfy the Agency in its review. The Board
    invited comment.
    Section 730.169
    This Section was derived from 40 OFR 146.69, added at 53 Fed. Reg.
    28152, July 26, 1988. It states the minimum reporting requirements for owners
    and operators of Class I hazardous waste injection wells. It requires the
    owners or operators to report changes in the ratio between the injection
    pressure and the flow rate to evaluate the long term performance of the
    injection formation. It also adds a new requirement under subsection (a)(3),
    the new alarm shutdown and resulting response requirements, but its
    applicability is limited to notification only if a loss of mechanical
    integrity is expected. Other routine occurrences would be reported with
    quarterly reports. Also, subsection (a)(5) requires reporting of both annular
    fluid lost and fluid gained in order to indicate leaks in the well tubing and
    indicate where injection pressure exceeds annular pressure.
    The Board revises the federal language in two regards. The Board
    believes repunctuation of subsection (a)(7) more clearly indicates that
    subsections (a) and (b) are dual requirements. The Board uses “permit
    condition” in subsection (b)(2). See discussion of Section 730.113.
    Section 730.170
    This Section was derived from 40 CFR 146.70, added at 53 Fed. Beg.
    28152, July 26, 1988. It sets forth the information which must be evaluated
    by the Agency in authorizing Class I hazardous waste injection wells. It
    essentially restates the information of existing Section 730.114.
    The Board revises the preambles to subsection (a) and (b) to more direct
    phrasing. The Board also offsets the proviso at the end of the subsection (a)
    preamble with a comma, concluding subsection (a)(8) with a colon (rather than
    a semicolon) and offsetting the “where necessary” phrase of subsection (b)(7)
    with commas and removing the comma before “and.” The Board retains the 40 OFE
    146.70(d) language, “economically practicable” and “practicable,” at
    subsections (d)(1) and (d)(2) because these appear vital thresholds to a key
    federal requirement. The Board invited comment.
    The Board will capitalize “Section” where it appears in the preamble, in
    response to PC# 2 and PC# 3.
    Section 730.171
    This Section was derived from 40 CFR 146.71, added at 53 Fed. Beg.
    28153, July 26, 1988. It reorganizes and consolidates existing requirements
    for closure. Three new requirements for closure include:
    1) Requiring the owner or operator to observe and record pressure
    decay for a time specified by permit condition,
    1 07—391
    24
    2) Requiring the demonstration of mechanical integrity prior to
    plugging, and
    3) Clarifying that both the owner or operator, as well as a third
    party, if different, must certify that the facility was closed
    according to a complaint closure plan.
    The Board makes several revisions to the federal text. It uses “permit
    condition” in the subsection (a) preamble. THe Board also observes that 40
    OFR 146.7l(a)(4) reiterates a requirement with identical language at
    paragraphs (a)(4)(v) and (a)(4)(x). The Board retains only the first
    occurrence at subsection (a)(4)(E) and dropping what would have otherwise
    appeared as (a)(4)(J). The Board also substitutes “stbp” at subsection (a)(6)
    arid rephrasing this subsection more directly and without gender—based
    language. The Board adds “otherwise” to subsection (a)(G)(B), and specifying
    “permit condition” in this subsection and in subsections (d)(1), (d)(2)(D),
    (d)(5)(D), and (d)(7). See discussion of Section 730.113. To clarify that
    the informational submissions required under subsections (a)(6) are made as
    part of the permitting process, the Board addresses an additional subsection
    (A)(6)(O). The Board uses language for subsection (a)(7) that would clarify
    that 30 days is a minimum time for the required notice. The Board also drops
    language from subsection (b) that would explicitly allow a shorter time for
    notice of closure. The Board believes that the Agency has inherent authority
    to accept shorter notice, and it would serve no purpose for the Board to
    constrain the Agency or encourage shorter notice. The Board retains the
    language and capitalization for the methods names in subsections (d)(5)(A)
    through (d)(5)(C). Are these industry-wide standard procedures? Are they
    published in some form? The Board invited comment,
    PC# 4 would have the Board add “of this Section” to the end of
    subsection (a)(2) for clarity. Under the Illinois codification rules, such
    use is not allowed. Further, under those rules, where “subsection (x)” is
    used, only subsection (x) of the present section is allowed. PC# 4 points out
    that the Board omitted 40 CFP. 146.71(a)(4)(x) from subsection (a)(4). As
    noted above, 40 CFR 146.71(a)(4)(x) is a reiteration of the language of 40
    OFP.(a)(4)(v), which the Board proposed and adopts as subsection (a)(4)(E).
    Reiteration is not necessary to render the Board’s rules identical in
    substance to the federal rules. PO~4 also highlights the fact that the
    proposed text of subsection (b) simply requires notice to the Agency 60 days
    prior to well closure, rather than adding the proviso from 40 CFR 146.71(b) to
    the effect that the Agency can approve a shorter notice. The Board agrees
    with USEPA that a more rapid closure is sometimes desireable, and possibly
    necessary to avoid unsafe operation of a well. However, the Board points out
    that the rule, as proposed, in no way circumscribes the Agency’s discretion to
    permit closure on shorter terms, if that is what the permittee has requested.
    The Board felt that restating the obvious (i.e. that the Agency has such
    discretion) could potentially encourage later filings. As it stands,
    subsectioi~ (b) simply requires prompt notice of closure to the Agency. The
    Board will adopt it as proposed.
    107—392
    25
    Section 730.172
    This Section was derived from 40 CFR 146.72, added at 53 Fed. Reg.
    28154, July 26, 1988. This and the following Section mandate post—closure
    care requirements and associated financial responsibility requirements for
    hazardous waste injection wells. Although a properly chosen site should
    contain the waste indefinitely under natural conditions, other man—made
    conditions may affect containment. Owners or operators must submit a plan
    outlining the closure and post—closure care requirements. This would become a
    condition of the permit. These requirements survive permit termination. The
    requirement to maintain an approved plan is directly enforceable regardless of
    whether the requirement is a condition of the permit. Any modifications of
    the permit are which might be required could be made using procedures at 35
    Ill. Adxn. Code 705.128.
    Although Section 730.172(c) requires the owner of a Class I hazardous
    waste injection well to provide certain information on the deed to the
    facility property or another instrument which is normally examined during
    title search, the adopted rule clarifies that this does not exempt the owner
    from complying with the Illinois Responsible Property Transfer Act of 1988
    (RPTA), Ill. Rev. Stat. 1987 ch. 30, par. 901 (P.A. 85—1228, effective 1—1—
    89). This Section also requires that the owner or operator notify the Ill.
    Dept. of Mines and Minerals as to the depth and location of the confining
    zone.
    The language of 40 CFR 146.72(b)(5) makes it appear that USEPA intends
    ultimate disposition of waste records at some central repository. At
    subsection (b)(5), the Board requires delivery to the Agency at the conclusion
    of the retention period.
    In response to PO# 2, the Board revises the citation to the Responsible
    Property Transfer Act in subsection (d). PC# 4 points out that the Board
    deleted a reference to “any local authority” from subsection (b)(4) that
    appears in the notification requirement of 40 OFR 146.72(b)(4). PO# 4 states
    that the intent of this provision is to prevent subsequent penetration of the
    well’s confining layer. The Board shares this concern, but neither the record
    nor the Agency has informed the Board of the existence of any other state or
    local agency that would regulate activities which could penetrate the
    confining layer. The Illinois Department of Mines and Minerals is one choice
    obvious to the Board because it regulates mining activities. Therefore, the
    Board included the Department.
    Further research reveals that the State Department of Public Health has
    the authority and responsibility under the Water Well Construction Code, Ill.
    Rev. Stat. 1987 and 1988 Supp. ch. 111½, par. 116.111 et seq., to permit and
    regulate installation of private and semi—private wells. The Department also
    regulates and permits private sewage disposal systems under the Private Sewage
    Disposal Licensing Act, Ill. Rev. Stat. 1987 and 1988 Supp. ch. 111½, par.
    116.111 et seq., Under separate legislation, the Department also regulates
    various other activities, including aspects of public water supplies. This
    research also reveals that the Department can authorize units of local
    government to administer aspects of the Water Well Construction Code and the
    107— 393
    26
    Private Sewage Disposal Licensing Act, see Ill. Rev. Stat. 1987 and 1988 Supp.
    ch. 111½, par. 116.115b, 116.309 & 116.310, although the Board cannot
    specifically identify those units of local government.
    The Board adds the State Department of Public Health to those that an
    owner or operator must notify under subsection (b)(4). As to other local
    authorities, the only activity besides mining that the Board can conceive as
    potentially penetrating a well’s confining zone is well drilling. Because any
    such drilling must have a permit from the Department of Mines and Minerals,
    the State Department of Public Health, or a unit of local government (duly
    authorized by the State Department under the Water Well Construction Code),
    the Board will add “the State Department of Public Health and any unit of
    local government authorized to grant permits under the Water Well Construction
    Code (Ill. Rev. Stat. ch. 111½, par. 116.111 et seq.) in the area where the
    well is located.”
    The Board does not discuss the drilling of injection wells permitted by
    the Agency because the Agency already has record of the closing well. Also,
    the Board observes that subsection (d) already requires notice under RPTA to
    subsequent owners and occupants of the property.
    The Board cannot adopt a rule as nebulous as that promulgated by TJSEPA
    as 40 OFR 146.72(b)(4).. The Board must clearly delineate a standard by which
    the owner and operator can determine whom to notify of the closure.
    Alternative standards are possible, but without the benefit of public input,
    the Board cannot determine their viability. The Board believes that the rule
    as adopted is identical in substance with the federal requirement. If further
    public comment reveals a more viable alternative exists, the Board can correct
    subsection (b)(4) in a subsequent update.
    Section 730.173
    This Section was derived from 40 CFR 146.73, added at 53 Fed. Beg.
    28154, July 26, 1988. The owner or operator must demonstrate and maintain
    financial responsibility for post—closure care. The rule is structured to
    mirror the requirements of 35 Ill. Adm. Code 725.Subparts G and H. The
    minimum funds necessary are listed, and the obligation to maintain financial
    responsibility for post—closure care survives the termination of a permit or
    the cessation of injection. The requirement to maintain financial
    responsibility is enforceable regardless of whether the requirement is a
    condition of the permit.
    PART 738
    A new Part, 738, derived entirely from 40 CFR 148, was added to identify
    hazardous wastes that are restricted from disposal into Class I hazardous
    waste injection wells. The Part also defines the circumstances under which
    wastes otherwise prohibited from injection may be injected. The use of models
    now forms the basis for “no migration” petitions, versus the previous
    “4x/lOx”, because the “4x/lOx” concept may not always afford the level of
    protection that is sought.
    107— 3q4
    27
    All the Sections are numbered from the source USEFA rule according to a
    simple correspondence:
    Source USEPA Section number
    148.1
    Insert zeros to right of decimal point so there are
    148.001
    three digits after the decimal
    Add the constant 590.100
    590.100
    Resulting Board Section number in 35 Ill. Mm. Code
    738.101
    USEPA has declined to comment on the substance of Part 738 until after
    the Agency has fulfilled its mandate under Section 4 of the Act and sought
    primacy for the “Land Ban” rules embodied in 35 Ill. Adm Code 728 and 738
    under the federal Hazardous and Solid Waste Amendments of 1986 (HSWA). PC# 4
    points out that the Agency “is not currently seeking primacy for the land ban
    program.” However, PC# 4 further asserts that Section 1422 of the Safe
    Drinking Water Act (42 USC § 300h—1) preempts state law regulating underground
    injection until USEPA approves the state program. Therefore, PO# 4 expresses
    a desire that “a disclaimer be appended to the adoption of Part 738.”
    Presumably, this disclaimer would delay the effective date of Part 738 until
    USEPA grants primacy.
    As is apparent by today’s amendment to the definition of “Effective date
    of the UIO program” at 35 Ill. Adm. Code 730.103, one alternative is for the
    Board to adopt a proviso at Section 738.101, as follows (added language
    highlighted):
    b) The requirements of this Part apply to owners or operators
    of Class I hazardous waste injection wells used to inject
    hazardous waste after the date on which USEPA delegates
    primacy for the land ban program to the State of Illinois
    pursuant to Section 1422 of the SDWA and 40 OFR 123.
    Another alternative is for the Board to adopt a definition of “Effective date
    of the land ban program” at Section 738.102, that would read essentially as
    did the former definition of “Effective date of the UIC program” at 35 Ill.
    Adm. Code 730.103.
    None of these alternatives is entirely desireable, and the alternatives
    relating to partial delay effective dates are not much better. One problem
    with a delayed effective date for Part 738 as a who le is that the federal
    rules would be more stringent than the Board’s rules. A waste prohibited from
    injection at the federal level would not be prohibited under Illinois law.
    Further, this would mean the Board had not as fully complied with the mandate
    of Section 13(c) of the Act as it could have.
    In adopting the initial phases of the RORA and UIC programs, the Board
    employed delayed effective dates where the state had absolutely no authority
    to administer the programs until USEPA conferred primacy. This is not the
    case with regard to the HSWA-related amendments. Rather than adopt rules that
    107—30.5
    28
    will have no effect until granted federal approval, the Board prefers to adopt
    rules that are effective as state law upon filing with the Secretary of State.
    To the extent these rules are preempted by federal law because they conflict
    with that law, they will probably have no effect as state law. However, to
    the extent they are not preempted by federal law, they are effective as state
    law——notwithstanding their lack of federal approval. When approved by USEPA,
    these rules will become effective as both federal and state law in Illinois.
    For the foregoing reasons, the Board will not revise Part 738 to include
    a disclaimer or a delayed effective date as suggested by USEPA. Their
    adoption as immediately effective rules will not demonstrably interfere with
    the administration of any federal program, and it will aid in maintaining
    prompt consistency between the Illinois and federal UIC programs.
    ADJUSTED STANDARDS FROM GENERAL PROHIBITIONS
    The Federal 40 CFR 148 Rules contemplate that the Administrator of USEPA
    can grant exemptions to the general prohibitions upon petition and adequate
    showing of the owner or operator. The Administrator can also modify or
    terminate the exception under certain circumstances. As drafted by USEPA,
    this does not directly comport with Illinois law and administrative structure,
    so the Board adapts of the substance of the federal scheme to the Illinois
    system. The Board uses its existing adjusted standard procedure of 35 Ill.
    Adm. Code 106 as the framework for the state to grant the equivalent of a
    federal “exemption.”
    The structure of the federal rule presents two problems that the Board
    seeks to overcome. First, USEPA can require rejustification of the exemption
    during the course of permit review or on the basis of new information, whereas
    the Agency cannot review a Board—granted adjusted standard. Further, it is
    not clear that the Agency can petition for modification of an adjusted
    standard under the existing Board rules relating to reconsideration of Board
    orders and adjusted standards. The second, similar problem is that it is not
    clear that the Agency can petition the Board to terminate an adjusted standard
    using the existing procedures, absent an enforcement action, as is
    contemplated by 40 CFR 148.24.
    The Board’s adopted rule endeavors to solve both problems by opening
    existing procedures for use under this Part. Under the alternative adopted
    there is a reverse procedure that the Agency could use to petition for Board
    reconsideration of an adjusted standard—-as sort of a “reverse adjusted
    standard” procedure. The alternative waives the existing limitation periods
    for reconsideration of Board orders, in order to allow a more summary
    procedure. This procedure requires the Agency to initially request that the
    owner or operator petition the Board for modification of the adjusted
    standard. If the owner or operator fails to do so, the Agency can file for
    reconsideration. The Board may conduct a plenary review of the adjusted
    standard and/or require that the full procedural requirements for a new
    petition and of 35 Ill. Adm. Code 106. Subpart G apply to the proceeding, with
    the Agency as petitioner. This method would contemplate a simultaneous waiver
    of the permit decision due date by the permittee if that permittee wishes to
    avoid issuance of “default” permits under subsection 738.123(a) (4).
    107— 39 6
    29
    Further, the adopted rule attempts to clarify that the existence of an
    adjusted standard does not insulate an owner or operator from enforcement of
    the Act, Board rules, and other laws. Initially, it requires this as a
    condition to all adjusted standards granted under this Part. Second, it
    expressly states that “any person” may file an enforcement action before the
    Board under Section 33 of the Act. The rule specifically states that the
    Board may terminate an adjusted standard (as part of any sanction) for the
    same reasons that USEPA states its Administrator may terminate any exemption.
    Some aspects of these revisions are highlighted below in the section-
    by—section discussion. The Board invited comment on its adaptation of the
    federal procedures.
    PC# 2 observes that the headings of Sections 738.111, 738.112, 738.113,
    738.120, and 738.123 in the table of contents do not match those in the text
    of the rules. The Board notes that Section 738.113 does not exist, but there
    is such a discrepancy in the heading of Section 738,114. The board corrects
    the headings to Sections 738.111, 738.114, and 73E~l23 in the table of
    contents. The Board corrects the headings of Sections 738.112 and 738.120 in
    the text of the rules.
    SUBPART A: GENERAL
    Section 738.101
    This Section was drawn from 40 CFR 148.1, added at 53 Fed. Beg. 28155,
    July 26, 1988. It generally describes the Part’s purpose, scope and
    applicability. Subsection (c)(3), however, includes a substantive provision
    that allows continued injection of prohibited wastes under certain
    circumstances.
    The Board, in subsections (c)(2), uses the adjusted standard as the
    means to gaining an exemption. The Board also omits the 40 CFR 148.l(c)(1
    language “with respect to such wastes” and the 148.1(c)(2) language “to allow
    injection of restricted wastes...” as surplusage. Subsection 738.122(c)
    explicitly states the limitations of adjusted standards granted for
    underground injection. The Board omits 40 CFB 148.l(c)(4) in its entirety
    because the applicable date is past.
    In response to PC# 2 and PC# 3, the Board capitalizes “Part” in
    subsection (b).
    Section 738.104
    This Section was drawn from 40 OFR 148.4, added at 53 Fed. Beg. 28155,
    July 26, 1988. It provides for the possibility for owners or operators of
    Class I hazardous waste injection wells to apply for an extension of the
    effective date of any applicable prohibitions under Subpart B by application
    to USEPA. Granting such extensions is a federal prerogative under Section
    3004(h) (3) of RCRA, so the Board did not adopt a parallel provision retaining
    such authority. Rather, 35 Ill. Adm. Code 728.105(b), parenthetically
    i07—3~)7
    30
    referenced in this provision, provides that USEPA—granted extensions are
    deemed extensions for the purposes of the parallel Board rule. The Board
    invited comment.
    PC# 2 requests that the Board define “USEPA,” stating that the Illinois
    Code codification rules will not allow use of an acronym without definition.
    The Board notes that “EPA” is defined at 35 Ill. Adm. Oode 730.103, and this
    definition applies “to the underground injection control program.” The Board
    uses “EPA” in the adopted rule.
    Section 738.105
    This Section was drawn from 40 CFR 148.5, added at 53 Fed. Reg. 28155,
    July 26, 1988, It requires generators of hazardous wastes that are disposed
    of into Class I injection wells to comply with applicable requirements of Part
    728.107(a) and (b). Also, owners and operators of Class I hazardous waste
    injection wells must comply with certain requirements of Section 728.107(c).
    As discussed below under Section 738.110, the Board adds a definition of
    “EPA Hazardous Waste number” to this section.
    SUBPART B: PROHIBITIONS ON INJECTION
    Section 738.110
    This Section was drawn from 40 CFR 148.10, added at 53 Fed. Beg. 28155,
    July 26, 1988. This Section bans certain spent solvent wastes specified in 35
    Ill. Adm. Code 721.131 from underground injection, unless the solvent waste is
    a solvent—water mixture or solvent containing sludge containing less than one
    percent total FOOl through F005 solvent constituents listed in an included
    table. A total ban on injecting these wastes takes effect on August 8, 1990
    under subsection (b). Subsection (c) states when exemptions from these bans
    are possible.
    The Board has incorporated the table into the body of the adopted
    section because Illinois’ codification scheme does nOt allow an appendix to an
    individual section. The Board also named “1,1,2-Trichloro—l,2,2—
    trifluoroethane” what appears at Table A to 40 CFB 148.10 as “1,2,2—Trichloro-
    l,2,2—trifluoroethane.” The federally—named compound does not exist, and the
    Board—adopted name follows standard IUPAC nomenclature for what appears as
    USEPA’s intent.
    Subsections (c)(2) and (c)(4) in the adopted language refer to adjusted
    standards. The Board notes that two types of adjusted standards are
    contemplated under subsection (c): a 35 Ill. Adm. Code 738.Subpart C Adjusted
    Standard, discussed above, or a 35 Mm. Code 728.144 adjusted treatment
    standard.
    FC# 2 requests that the Board define “EPA” used in subsection (a). As
    discussed above, the term is defined at 35 Ill. Adm. Code 730.103 for the
    purposes of the UIC program. Actually, the term that needs definition at this
    location, if any, is “EPA Hazardous Waste number.” Such a definition exists
    107—39 8
    31
    at 35 Ill. Adrn. Code 720.110, but is limited in its applicability to 35 Ill.
    Adm. Code 721 through 725 and 728, the RCRA program. The Board will
    incorporate the substance of that definition in Section 738.102 for the
    purposes of this Part. “Hazardous waste” is defined at Section 730.103 for
    the purposes of the UIC program.
    The Board initiates a final correction to this section at subsection
    (b). Proposed subsection (b) erroneously cited “subsection (c)(4) as the
    listing of FOOl through F005 solvent waste constituents. As discussed aocve,
    the Board incorporated those constituents into the text of subsection (a).
    Section 738.111
    This Section was drawn from 40 CFR 148.11, added at 53 Fed. Beg. 28155,
    July 26, 1988. This Section bans injection of certain dioxin—containing
    wastes, then states the circumstances under which the ban does not apply.
    The adopted language of subsection (a) omits a past effective date froc;
    40 CFR 148.11(a). Subsection (b)(2) refers to a 35 Ill. Adm. Code 738.Subpart
    O adjusted standard, whereas subsection (b)(4) refers to a 35 Ill. Adm. Code
    728.144 adjusted treatment standard.
    Section 738.112
    This Section was derived from 40 CFR 148.12, added by 53 Fed. Reg.
    30918, August 16, 1988. It bans hazardous wastes listed at 35 Ill. Adm. CodL
    728.132 from underground injection that contain FOBs at concentrations greater
    than or equal to 55 ppm, or halogenated organic compounds at concentrations
    greater than or equal to 10,000 mg/kg.
    Subsection (b) was further amended by 53 Fed. Beg. 41602, October 24.
    The amendment corrects an error in the final August 16 rule establishing
    effective dates prohibiting the injection of “California wastes,” and certain
    “First third” wastes. Specifically, the October amendment clarifies that a
    two-year capacity variance (to August 8, 1990) has been granted to all
    injected wastes covered under Section 3004(d) of RORA, except liquid hazardous
    wastes containing FOBs equal to or exceeding 50 ppm and hazardous wastes
    containing HOCs at concentrations equal to or greater than 10,000 mg/kg.
    These latter wastes were prohibited from disposal in injection wells on August
    8, 1988, while the remaining California list wastes will be prohibited on
    August 8, 1990.
    Subsection (c) of Section 738.112 was added at 53 Fed. Beg. 30918,
    August 16. It states when the bans in the other subsections are not
    applicable.
    The adopted text of subsection (a) omits a past effective date.
    Subsection (c)(2) refers to a 35 Ill. Adm. Code 738.Subpart C adjusted
    standard.
    107— 399
    32
    Section 738.114
    This Section was derived from 40 CFR 148.14, added by 53 Fed. Beg.
    30918, August 16, 1988. Effective August 8, 1990, it bans certain of the
    wastes listed in 35 Ill. Adm. Code 721.132 from underground injection and
    states when the bans are not applicable.
    Subsection (b)(2) refers to 35 Ill. Adm. Code 738.Subpart C adjusted
    standard.
    SUBPART C; PETITION STANDARDS AND PROCEDURES
    This entire Subpart is derived from 40 OFR 148.120 through 148.124,
    added at 53 Fed. Reg. 28155—28167, July 26, 1988. This Subpart defines the
    circumstances under which a waste otherwise prohibited from injection may be
    injected: when an applicant has demonstrated to the satisfaction of the Board
    that there will be no migration of hazardous constituents from the injection
    zone for as long as the wastes remain hazardous.
    Also, Section 738,104 provides that the owner or operator may, on a
    case—by—case basis, petition USEPA for an extension to the effective date
    according to procedures outlined at 35 Ill. Adm. Code 728.105
    Section 738.120
    This Section states what a petitioner must prove to the Board, pursuant
    to adjusted standard procedures, to obtain an exemption from Subpart B.
    Basically, the applicant may make a demonstration of “no migration” based on
    either:
    1) An absence of fluid movement out of the injection zone; or
    2) An active process of waste reduction, transformation, or
    immobilization within the injection zone.
    Whereas subsection (a)(l) states the object of the demonstration,
    subsection (a)(2) imposes informational requirements, as do subsections (b)
    through (d). Subsection (e) provides for reissuance of adjusted standards to
    add wastes or modify conditions upon petition and compliance with the
    subsections (a) through (c) requirements for original issuance. Under
    subsection (f), the Board may modify the adjusted standard if the owner or
    operator shows that the new wastes would behave “hydraulically and chemically
    similar” to the allowed wastes.
    The Board rewords 40 CFR 148.20(d)(1) for directness and clarity in
    subsection (d)(1). The Board observes that subsection 738.120(a)(2)(B),
    includes the phrase “protocol acceptable to the Board.” The Board invited
    comment as to whether any published resources presently exist for public
    guidance.
    The Board deletes the underscoring from “exemption” in response to PO#
    3. The Board corrects the Board Note to subsection (a)(2)(D), the word
    107—40fl
    33
    “subsection” as subsections (b) and (c), and the word “Section” at subsection
    (f) in response to PO# 2.
    Section
    738.121
    This section derives from 40 CFB 148.21, as added at 53 Fed. Beg. 28156,
    July 26, 1988. It outlines the information and quality of information that a
    petitioner must suboit under Section 738.120 for an adjusted standard.
    Subsection (a) basically outlines the information quality, and subsections (i,
    and
    (C).
    largely outline the informational
    items required.
    The Board—adopted text for subsection (a) deviates slightly from the
    text of 40 CFR 148.21(a) and is partly fashioned after 35 111. Mm. Ocde
    728.1O6(c)(,5). This is largely done for clarity, but with an intent of not
    increasing the petitioner’s burden. It is also to overcome a flaw in the
    federal language if literally adopted by the Board. Paragraph 40 CFP
    148.2l(a)2) requires use of E?A—certified test protocols. The
    Board is
    unaware
    of any such protocols, but, further,
    it
    cannot presently impose a
    requirement
    not yet in existence. For this reason, the Board chose, by
    subsection (a)(2)j’B), to require the petitioner to identify any EPA—certified
    test protocols in existence when the petitioner performed its estimation and
    monitoring.
    Although cor:pliance with those protocols is not required by this
    subsection, knowledge of their existence can help guide the Board in
    its
    deliberations.
    The Board invited comment as to the existence of any EPA~-
    certified test protocols or technical guidelines.
    The revision of subsection
    (a)(2) avoids using the federal “appropriate’
    at subsection
    (a)(2)(A),
    but the Board does not believe that it can similarly
    avoid using this word in subsection (a)(3).
    The Board invited comment.
    The
    Board corrects the federal “reliant”
    to “reliable”
    at subsection
    (c).
    This is
    the apparent intent of
    USEPA. The Board invited comment.
    PC# 2 requests that the Board add a heading to subsection
    (a) (2) to ad~
    clarity
    and aid the reader.
    This the Board has done in the text of the
    adopted rule.
    The Board does not intend that this heading modify the meanin7~
    of subsections
    (a)(2)(A) and (a)(2)(B) in any way.
    Section 738.122
    This section derives from 40 CFR 148.22, as added at 53 Fed. Beg. 28156,
    July 26, 1988.
    Subsection
    (a) basically
    imposes additional
    informational
    requirements
    for Section 732.120 petitions
    for adjusted standards.
    Subsection
    (b) sets forth notice
    requirements. Subsection (c) states that adjusted
    standards apply only to the wastes and wells stated in the Section 738.120
    petition.
    Finally,
    subsection (d) requires the Agency to expedite the
    issuance or reissuance of a permit after an adjusted standard issues.
    The
    maximum term of such a permit is ten years.
    The adopted rule revised 40 OFF 148.22(a)(3)
    to more direct language in
    the active voice in subsection (a)(3).
    More important are the revisions
    embodied in subsection (b). 40 OFF 14822(b)
    provides that USEPA will publish
    advanced Federal Register notice of its intent to approve or deny each
    1 07-”~1
    34
    petition for exemption. The Board’s existing adjusted standards rules provide
    for no similar advanced notice of intent. They provide that the petitioner
    must publish newspaper notice of having filed a petition for an adjusted
    standard,
    35 Ill. Mm. Code 106.711, that the Board will file a newspaper
    notice of any hearing on such a petition,
    35 Ill. Mm. Code 106.802, and that
    the Board will annually publish in the Illinois
    Register and the Environmental
    Register listings of all adjusted standards
    granted during the year. 35 Ill.
    Mm. Code 106.096.
    The Board presumes that the federal r.otice requirement is to allow
    public comment
    on the proposed USEPA action. The Board believes that its
    existing adjusted standards public notice provisions more than adequately
    address this end. The existing
    adjusted standards procedures actually give
    greater opportunity for public participation
    in
    the adjusted standard
    deliberative
    process than does the corresponding
    federal rule because that
    participation
    would occur prior to any tentative
    decision on a petition.
    The Board has
    considered and rejected more cumbersome public notice
    requirements
    that are not presently a part of existing adjusted standard
    procedures. One alternative is
    for the Board to publish notice of its
    decision on a petition, then hold the time for reconsideration open for a
    certain time after the date of publication. Another alternative is for the
    Board to issue public notice of tentative decisions, similar to those use in
    rulemaking proceedings.
    The Board does not believe that either alternative
    is
    necessary.
    Rather, the Board will employ its existing 35
    Ill.
    Mm.
    Code 106.
    Subpart G procedures without elaboration or change. The text of adopted
    subsection
    (b) reflects
    this.
    The Board invited comment.
    A final revision over the text of 40 OFF 148.22 is the addition of
    adopted subsection (e). This clarifies that as a condition to each adjusted
    standard, the owner or operator is not insulated from an enforcement action
    for violations of any provisions except those expressly recited in the
    adjusted standard itself.
    Section 738.123
    This section derives from 40 CFR 148.23, as added at 53 Fed. Beg. 28157,
    July 26, 1988. It provides for review of existing adjusted standards for a
    facility during the course of permit review. It provides that the Board may
    require a new Section 738.120 demonstration if it determines that the basis
    for original approval is no longer valid.
    The Board has revised the federal rule in adapting its substance to the
    Illinois Regulatory scheme. The above general discussion of adjusted
    standards relates to these revisions. Initially, it is the Agency that
    reviews permits and the Board that approves petitions for adjusted standards.
    The Agency cannot revise an adjusted standard granted by the Board, and the
    Board does not conduct permit reviews, except on permit appeal, and does not
    have direct access to the Agency’s permit files. Further complicating this is
    the fact that no direct “reverse adjusted standard” procedure presently exists
    by which the Agency may petition for Board review of adjusted standards.
    Rather, after the Board has issued an adjusted standard, and the time for
    107—402
    35
    rehearing and appeal have passed, the Agency can only gain modification of an
    adjusted standard if a violation is found in the course of an enforcement
    action to obtain modification. This is problematic for a number of reasons
    that this opinion will not discuss.
    The language of the adopted rule endeavors to correct this. The adopted
    rule requires the Agency to review any adjusted standards held by the
    mermittee during the course of permit review. If the Agency determines that
    the basis for the adjusted standard may no longer be valid, it can request in
    writing that the permittee submit a petition to the Board for modification of
    the adjusted standard pursuant to Section 738.120(f). If the permittee fails
    to file such a petition, the Agency may petition the Board for reconsideration
    of the adjusted standard. This will invoke the Board’s jurisdiction, and the
    Board may then conduct a limited or plenary review of the adjusted standard,
    using appropriate procedures, as the situation warrants. The Board has not
    inserted time deadlines in this provision, although the Board realizes that
    the Agency must render its permit decisions within a short time. The Board
    invited comment on this procedure, specifically with regard to its lack of
    time deadlines.
    PO# 2 requests that the Board adopt a heading for subsection (a)(4).
    The Board has done so, but does not intend that the heading change the plain
    meaning of subsections (a)(4)(A) and (A)(4)(B) in any way.
    Section 732.124
    This section derives from 40 OFR 148.24, as added at 53 Fed. Beg. 28157,
    July 26, 1988. It is a companion to Section 738.123, in that it provides for
    reappraisal of granted adjusted standards. It is different, however, in that
    it provides for their termination. It provides for termination in the event
    of the owner or operator’s noncompliance with its provisions, for the owner or
    operator’s failure to fully disclose all relevant facts or misrepresentation
    of any relevant facts during the course of Board review of the petition, or ii
    new information shows that the basis for approval is no longer valid or there
    was migration from the injection zone.
    The Board revised to 40 OFF 148.24 in order to adapt this provision to
    the Illinois scheme. First, the adopted rule expressly states that any person
    may file an enforcement action against an owner or operator, notwithstanding
    the existence of an adjusted standard. This further clarifies that an
    adjusted standard does not insulate the owner or operator from other
    liability. The rule then reiterates that the Agency may petition for
    reconsideration of any adjusted standard. The adopted rule then proceeds to
    enunciate the same bases for termination that are set forth in 40 OFR 148.24.
    The Board invited comment on this scheme.
    PC# 2 requests that the Board develop a heading for subsection (a)(1).
    The Board has done so with the intent that the heading not change the meaning
    of any portion of this section. PC# 2 also requests that the Board correct
    the title of the Act in subsection (a)(1)(A). The Board adopts this
    correction.
    107—403
    36
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board,
    he~Dy certify that the above Opinion was adopted on the
    ~
    ‘~-
    day of
    ______________________
    1990, by a vote of
    _________
    /
    Dorothy M. Gunu, Clerk
    Illinois Pollution Control Board
    107— 404

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