ILLINOIS POLLUTION CONTROL BOARD
November 15,
1989
IN THE MATTER OF:
UST UPDATE.
USEPA REGULATIONS
)
R89-10
(10/27/88 through 6/30/89)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION AND ORDER OF THE BOARD
(by J. Anderson):
.Pursuant
to Section
22.4(d)
of the Environmental Protection
Act
(Act),
the Board is proposing
to amend the UST underground
storage tank
regulations
in
35 Ill.
Adm. Code
731.
Section
22.4 of
the Act governs adoption of regulations
establishing
the RCRA program in Illinois.
Section
22.4(d)
provides for quick adoption of
regulations which are “identical
in substance”
to federal
regulations.
Section
22.4(d) provides
that Title VII of the Act and Section
5 of
the Administrative
Procedure Act
(APA)
shall not apply.
Because this rulemaking
is
not subject
to Section
5 of
the APA,
it
is not subject
to first
notice or
to second notice review by the Joint Committee on
Administrative Rules
(JCAR).
The federal UST rules are found at
40 CFR 280.
This rulemaking updates Illinois’ UST rules to
correspond with the following tJSEPA actions,
through June
30,
1989.
53 Fed. Reg.
44976
November
7,
1988
53
Fed.
Reg.
51274
December 21, 1988
54
Fed.
Reg.
5452
February
3,
1989
HISTORY OF UST RULES
The UST rules are contained
in 35
Ill. Adm.
Code
731.
They
were adopted and amended as
follows:
R86—l
71 PCB 110,
July 11,
1986;
10
Ill.
Reg.
13998,
August
22,
1986.
R86—28
75 PCB 306,
February
5,
1987;
and
76 PCB
195,
~arch
5,
1987;
11
Ill.
Reg.
6017,
April
3,
1987.
Correction
at
77 PCB 235, April
16,
1987;
11
Ill.
Reg.
8684,
May
1,
1987.
R88—27
April
27,
1989;
13
Ill. Reg.
9519,
effective June
12,
1989.
R89—4
July
27,
1989;
13
Ill.
Reg.
15010, effective
September
12,
1989.
InS
7•7o)
—2--
On April
27,
1989
the Board adopted regulations which are
identical
in substance
to the major revisions
to the USEPA UST
rules which appeared at 53 Fed.
Reg.
37194,
September
23,
1988.
The Board separated the financial responsibility
rules from the
September
23 rules
in order
to avoid delaying adoption of
the
latter.
The financial responsibility rules were adopted
in R89—
4.
Until R88—27 the UST rules were addressed
in the RCRA update
Dockets.
The Board separated the September
23, 1988 rules from
the RCRA update process because of the size and timir~gof the
rulemaking, and because of the desirability of developing
a
separate mailing
list for persons
interested only
in tanks.
The
Board will consider
recombining the RCRA and UST updates after
initial adoption of the new program.
FIRE MARSHAL RULES
As
is discussed
in greater detail below, the legislation
requires that both the Board and Office of
the State Fire Marshal
adopt equivalents of much of the USEPA UST rules.
The Fire
Marshal’s rules are contained
in 41
Ill. Adm.
Code
170, along
with preexisting rules adopted prior
to the USEPA equivalent
rules.
They were adopted, amended, corrected and objected to
in
the following actions:
13
Ill. Reg.
5669,
effective April
21,
1989.
13
Ill. Reg.
7744,
effective May
9,
1989.
13
Ill. Reg.
8515,
effective May 19,
1989.
13
Iii. Reg.
8875, effective May 19,
1989.
13
Ill.
Reg.13288, August
18,
1989.
13
Ill.
Reg.l3305, August
18,
1989.
~3 ill.
Reg.l4992,
f~ct1veSepLemb~: 11, l~i1~.
13
Ill.
Reg.l5126, September
22,1989
The technical standards were adopted
at
13
Ill.
Reg.
5669.
The financial assurance requirements were incorporated by
reference
at
13
Ill.
Reg.
8515.
The other actions were
corrections.
STATUTORY AUTHORITY
The February
2,
1989 Opinion
in R88—27
included a
lengthy
discussion of
Section
22.4(d)
off the Act, and other provisions
of
P.A.
85-861,
the statutory basis
of the UST program.1
The Board
will
reference
that discussion here,
and will only summarize
it
in this Proposed Opinion.
Section 22.4(d)
of
the Act requires
the Board
to adopt
regulations which are “identical
in substance” with USEPA’s UST
regulations.
Ill.’ Rev.
Stat.
1987,
ch.
127
1/2,
par.
l54(b)(i)
requires
the Office of the Illinois State Fire Marshal
to adopt
regulations which are also
to be
“identical
in substance”2 to the
same USEPA UST regulations.
While the Fire Marshal
is
to adopt
104-•2~)
—3—
regulations only through “corrective action”,
the Board
is
to
adopt the entire set
of rules.
In R88—27
the Board adopted
regulations which,
among other things,
reflect
the delineation
between regulations before and after
“corrective action”.
The financial
responsibility regulations bridge the
corrective action gap.
Operators are required
to provide
financial assurance
immediately or
in the near future.
This will
mainly be
for
tanks which are not known or suspected
to be
leaking.
However,
if
a tank leaks,
and the operator
fails to
take sufficient corrective action,
the financial institutions
will pay funds
for corrective action which will be under
the
direction of the Agency.
Thus the Fire Marshal will be
responsible for
receiving the financial assurance documents,
but
the Agency will
be the recipient of any funds.
Ill.
Rev.
Stat.
1987,
ch.
127 1/2,
par.
154(b)(ii) allows
the Fire Marshal
to adopt “additional requirements”.
Section
22.4(d) of the Act allows the Board,
upon receiving notice of
such requirement,
to adopt further Board requirements which are
“identical
in substance”
to the additional Fire Marshal
requirements.
The R88—27 rules
followed the USEPA rules
closely.
The Board will consider adopting “additional
requirements” following notice from the Fire Marshal.
SUMMARY OF CHANGES
The USEPA actions are minor changes
to the major packages
addressed
in R88-27 and R89—4.
As
it turns out,
these extend
a
date
to a point which had already passed before the Board adopted
the original date, and modify forms which the Board has just
incorporated by reference anyway.
The changes
to the Board
regulations are therefore minimal.
Section 731.191
This Section
is drawn from
40 CFR 280.91,
which was amended
at
54
Fed.
Reg.
5452,
February
3,
1989.
40
CFP. 280.91(a)
sets a
compliance date
of January
24,
1989
for the financial assurance
requirements
for certain operators.
Because
this date had
already passed,
in R89-4
the Board
required
irnrrediate
compliance.
However,
the federal compliance date has now been
amended to add a complex proviso extending the effective date for
certain requirements
to July
24,
1989,
a date which has also
passed.
Because this may have caused confusion,
the Board
is now
proposing
to insert the January
24,
1989 date and July
24
proviso.
Section 731.193
In Section 731.193(f),
Board
has proposed to
insert language
which was inadvertently omitted
in R89—4.
This Section
is drawn
from
40 CFR 280.93(f), which was adopted at
53 Fed. Reg.
43372,
October
28,
1988.
—4—
Section 731.203
Section 731.203 incorporates changes
in the Trust Agreement
Form.
In R89-4
the Board incorporated
these forms
by reference,
without setting
the text forth
in full.
The Board has updated
the incorporations
by reference.
Appendix A
The notification form was amended at
53 Fed.
Reg.
37208,
September
23,
1988.
The form should have been updated
in R88—27,
but was inadvertently omitted.
Rather than include the form with
the rules,
the Board has proposed to incorporate
the USEPA
regulation by reference,
and
to require the use of Fire Marshal
forms where available.
If the forms are not available,
the
person may prepare
a notification form based on the (JSEPA rule.
This
is
the format employed for the financial assurance forms
in
R89—4.
ORDER
The Board proposes to amend 35
Ill. Adm.
Code 731 as
follows.
The Board will receive written public comment
for
45
days after the date of publication in the Illinois Register.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER d:
UNDERGROUND INJECTION CONTROL
AND UNDERGROUND STORAGE TANK PROGRAMS
PART 731
u:~c~:~t~
STORAGE
TANiKS
SUBPART
A:
PROGRAM SCOPE AND INTERIM PROHIBITION
Section
731.101
Definitions and exemptions
(Repealed)
731.102
Interim prohibitions
(Repealed)
731.103
Notification Reauirements
(Repealed)
731.110
Applicability
731.111
Interim Prohibition
for Deferred Systems
731.112
Definitions
731.113
Incorporations
by Reference
731.114
Implementing Agency
SUBPART
B:
UST SYSTEMS:
DESIGN,
CONSTRUCTION, INSTALLATION AND
NOTIFICATION
Section
731.120
Performance Standards
for New Systems
731.121
Upgrading of Existing Systems
731.122
Notification Requirements
1fl5
2f32
—5—
SUBPART
C:
GENERAL OPERATING REQUIREMENTS
Section
731.130
Spill and Overfill Control
731.131
Operation and Maintenance of Corrosion Protection
731.132
Compatibility
731.133
Repairs Allowed
731.134
Reporting
and Recordkeeping
SUBPART
D:
RELEASE DETECTION
Section
731.140
General Requirements
for all Systems
731.141
Petroleum Systems
731.142
Hazardous
Substance Systems
731.143
Tanks
731.144
Piping
731.145
Recordkeeping
SUBPART
E:
RELEASE REPORTING,
INVESTIGATION AND CONFIRMATION
Section
731.150
Reporting of Suspected Releases
731.151
Investigation due
to Off—site Impacts
731.152
Release Investigation and Confirmation
731.153
Reporting and Cleanup of Spills and Overfills
SUBPART
F:
RELEASE RESPONSE AND CORRECTIVE ACTION
Section
731.160
General
731.161
Initial Response
731.162
Initial Abatement Measures and Site Check
731.163
Initial Site Characterization
731.164
Free Product Removal
731.165
Investigations
for Soil and Groundwater Cleanup
731.166
Corrective Action Plan
731.167
Public Participation
SUBPART G:
OUT-OF—SERVICE SYSTEMS AND CLOSURE
Section
731.170
Temporary Closure
731.171
Permanent Closure and Changes—in—Service
731.172
Assessing Site at Closure or Change—in—Service
731.173
Previously Closed Systems
731.174
Closure Records
SUBPART
H:
FINANCIAL RESPONSIBILITY
Section
731.190
Applicability
731.191
Compliance Dates
731.192
Definitions
11)
5
2 5 ‘3
—6—
731.193
731.194
731.195
731.196
731.197
731.198
731.199
731. 202
731.203
731.204
731.205
731.206
731.207
731.208
731.209
731.210
731.211
731.900
731.901
Appendix A
AUTHORITY:
Section
27
1988 Supp.
Amount and Scope of Required Financial
Responsibility
Allowable Mechanisms and Combinations
Financial Test
of Self—insurance
Guarantee
Insurance or Risk Retention Group Coverage
Surety Bond
Letter
of Credit
Trust Fund
Standby Trust
Fund
Substitution of Mechanisms
Cancellation or Nonrenewal by Provider
Reporting
Recordkeeping
Drawing on Financial Assurance
Release from Financial Assurance Requirement
Bankruptcy or other
Incapacity
Replenishment
Incorporation by reference
(Repealed)
Compliance Date
(Repealed)
Notification Form
Implementing Section 22.4(d) and authorized by
of the Environmental Protection Act (Ill.
Rev.
Stat.
ch.
111 1/2, pars.
1022.4(d)
and 1027).
SOURCE:
Adopted in R86—1 at 10
Ill.
Reg.
14175, effective August
12,
1986;
amended
in R86—28 at
11
Ill.
Reg.
6220, effective March
24, 1987;
amended in R88—27 at
13
Ill.
Reg.
9519,
effective June
12,
1989;
amended in R89—4 at
13
Ill.
Reg.
15010, effective
September
12,
1989;
amended
in R89—lO
at 14
Ill. Reg.
e fc tivn
SUBPART
H:
FINANCIAL RESPONSIBILITY
Section 731.191
Compliance Dates
Owners of petroleum underground storage tanks are required
to
comply with the requirements of this Subpart by the following
dates:
a)
All petroleum marketing
firms owning 1,000
or more USTs
and all other UST owners that report
a tangible net
worth of $20 million or more
to the U.S.
Securities and
Exchange Commission
(SEC),
Dun and Bradstreet,
the
Energy
Information Administration or the Rural
Electrification Administration:
—
med~e~--— January
24,
1989,
except that compliance
with Section 280.94(b)
is required by:
July
24,
1989.
b)
All petroleum marketing firms owning
100 through 999
UST5:
October
26,
1989.
lflS-2S4
—7—
c)
All petroleum marketing firms owning
13 through
99 USTs
at more than one facility:
April
26,
1990.
d)
All petroleum UST owners not described
in subsections
(a),
(b)
or
(c),
including units of
local government:
October
26,
1990.
(Source:
Amended at
14
Ill.
Reg.
effective
Section 731.193
Amount and Scope of Required Financial
Responsibility
a)
Owners
or operators
of petroleum underground storage
tanks shall demonstrate financial responsibility
for
taking corrective action and for compensating third
parties
for bodily injury and property damage caused by
accidental releases arising from the operation of
petroleum underground storage tanks
in at least
the
following per-occurrence amounts:
1)
For owners or operators
of petroleum underground
storage
tanks that are located at petroleum
marketing facilities,
or
that handle
an average of
more than 10,000 gallons
of petroleum per month
based on annual throughput
for the previous
calendar year:
$1 million.
2)
For all other owners
or operators
of petroleum
underground storage
tanks:
$500,000.
b)
Owners or operators of petroleum underground storage
tanks
shall
demonstrate financial responsibility
for
taking corrective action and for compensating
third
parties
for bodily injury and property damage caused
by
accidental releases arising from the operation of
petroleum underground storage
tanks
in at least
the
following annual aggregate amounts:
1)
For owners
or operators
of
1
to 100 petroleum
underground storage
tanks:
$1 million;
and
2)
For owners or operators
of 101
or more petroleum
underground storage
tanks:
$2 million.
c)
For
the purposes of
subsections
(b) and
(f) only,
a
“petroleum underground storage
tank” means
a single
containment unit and does not mean combinations
of
single containment
units.
d)
Except as provided
in subsection
(e),
if the owner
or
operator uses separate mechanisms
or separate
combinations
of mechanisms
to demonstrate financial
responsibility
for:
lr)
5 .225
—8—
1)
Taking corrective action;
2)
Compensating third parties
for bodily injury and
property damage caused by sudden accidental
releases;
or
3)
Compensating
third parties
for bodily injury and
property damage caused by nonsudden accidental
releases, the amount of assurance provided by each
mechanism or combination of mechanisms must be
in
the full amount specified
in subsection
(a) and
(b).
e)
If an owner or operator uses separate mechanisms or
separate combinations of mechanisms
to demonstrate
financial responsibility
for different petroleum
underground storage tanks,
the annual aggregate required
must
be based on the number
of
tanks covered
by each
such separate mechanism or combination of mechanisms.
f)
Owners or operators shall review the amount
of aggregate
assurance provided whenever additional petroleum
underground storage tanks are acquired or installed.
If
the number of petroleum underground storage
tanks for
which assurance must be provided exceeds
100,
the owner
or operator shall demonstrate financial responsibilty in
the amount of at least
$2 million of annual aggregate
assurance by the anniversary of the date on which the
mechanism demonstrating financial responsibility became
effective.
If assurance
is being demonstrated by
a
combination of mechanisms,
the owner
or operator shall
demonstrate
financial responsibility
in the amount of
at
l~.st
~2 miilic-~
o:
annual ~cgr~ga:e
as~u.ranceby
the
first—occurring effective date anniversary
of anyone
of
the mechanisms combined
(other than
a financial test or
guarantee)
to provide assurance.
g)
The amounts of assurance required under
this Section
exclude
legal defense costs.
h)
The required per—occurrence and annual aggregate
coverage amounts do not
in any way limit
the liability
of
the owner
or operator.
(Source:
Amended at
14
Ill.
Req.
effective
Section 731.203
Standby Trust
Fund
a)
An owner
or operator using any one of
the rnachanisms
authorized by Sections 731.196, 731.198 or 731.199 shall
establish
a standby
trust
fund when the mechanism
is
acquired.
The trustee of the standby trust
fund shall
be an entity that has the authority
to act as
a trustee
—9--
and whose trust operations are regulated and examined by
the Illinois Commissioner
of Banks and Trust Companies,
or who complies with the Corporate Fiduciary Act.
(Ill.
Rev.
Stat.
1987,
ch.
17, pars.
1551—1
et
seq.)
b)
Forms.
1)
The Board incorporates by reference
40 CFR
280.103(b)
as adopted
at
53
Fed.
Req.
43370,
October
26,
1988 and as amended at
53
Fed.
Req.
51274,
December
21,
1988.
This Section
incorporates no future editions or amendments.
2)
The Fire Marshal
shall promulgate
forms based on
the
forms
in
40 CFR 280.103(b),
with such changes
as are necessary under
Illinois
law.
3)
The owner
or operator
shall use such forms
if
available;
otherwise,
the owner
or operator shall
use the
form in
40
CFR 280.103(b), except that
instructions
in brackets must be replaced with the
relevant information and
the brackets deleted.
4)
In addition,
the owner
or operator and trustee
shall agree that Illinois law governs the trust.
c)
The Fire Marshal
shall instruct the trustee
to refund
the
balance of
the standby
trust fund
to the provider
of
financial assurance
if the Fire Marshal determines that
no additional corrective action costs or third—party
liability claims will occur
as
a result of a release
covered by the financial assurance mechanism for which
the standby trust fund was established.
d)
An owner
or operator may establish one trust
fund as the
depository mechanism for all funds assured in compliance
with this Subpart.
(Source:
Amended at
14
Ill. Reg.
effective
Section 73l.Appendix A
The Board incorporates
by reference
40 CFR 280, Appendix
I
(1988),
as amended at
53
Fed.
Req.
37208!
September
23,
1988.
This
Section
incorporates
no
future
editions
or
amendments.
Persons required
to notify shall use
forms provided by the Fire
Marshal
if
available.
Otherwise,
they
may prepare forms based on
40
CFR
280,
Appendix
I.
(Source:
Amended at
14
Ill.
Reg.
effective
155—2R7
—10--
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IS SO ORDERED.
105 28~
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Dorothy M. Gunn,
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was adopted on the /3~ day of
~
,
1989, by a vote
oE
7—’~
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Dorothy
M.
,~xnri,Clerk
Illinois Pó~Z1utionControl Board
