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ILLINOIS POLLUTION CONTROL BOARD

September 7, 2000

Proposed Rule. Proposal for Public Comment.

OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis):

Under Sections 7.2 and 13(c) of the Environmental Protection Act (Act) (415 ILCS 5/7.2 and 13(c) (1998)), the Board proposes amendments to the Illinois regulations that are “identical in substance” to underground injection control (UIC) regulations that the United States Environmental Protection Agency (USEPA) adopted to implement Section 1421 of the federal Safe Drinking Water Act (SDWA) (42 U.S.C. § 300h (1998)). The nominal timeframe of docket R00-11 includes federal UIC amendments that USEPA adopted in the period July 1, 1999, through December 31, 1999. The nominal timeframe of docket R01-1 includes federal UIC amendments that USEPA adopted in the period January 1, 2000, through June 30, 2000.

Sections 7.2 and 13(c) provide for quick adoption of regulations that are identical in substance to federal regulations that USEPA adopts to implement Section 1421 of the federal SDWA (42 U.S.C. § 300h (1998)). Section 13(c) also provides that Title VII of the Act and Section 5 of the Administrative Procedure Act (5 ILCS 100/5-35 and 5-40 (1998)) do not apply to the Board’s adoption of identical-in-substance regulations. The federal UIC regulations are found at 40 C.F.R. 144 through 148.

The Board will cause the proposed amendments to be published in the Illinois Register and will hold the docket open to receive public comments for 45 days after the date of publication.

CONSOLIDATION OF DOCKETS AND EXPEDITED CONSIDERATION

The Board has determined that it is necessary to consolidate two separate dockets in this rulemaking and expedite our consideration of certain later amendments. The following segment of this opinion outlines the various federal actions considered in this proceeding. The actions involved in UIC update docket R01-1 are consolidated with the rulemaking proposal in docket R00-11 because they require no Board action, are closely related to the actions involved in UIC update docket R00-11, or are the UIC aspects of the hazardous waste-related actions incorporated into the recent Resource Conservation and Recovery Act (RCRA) Subtitle C update, RCRA Subtitle C Update, USEPA Amendments (July 1, 1999, through December 31, 1999) (May 18, 2000), R00-13.

The most significant federal action involved in this proceeding is that of December 7, 1999, which is part of docket R00-11. The December 16, 1999 action is a correction to the December 7, 1999 action. The February 2, 2000 action, involved in the timeframe of the later docket, R01-1, is also a correction to the December 7, 1999 action. The federal action of March 17, 2000, involved in docket, R01-1, completes the UIC segments of the withdrawal of certain land disposal restrictions (LDRs). The Board completed the hazardous waste segments of the March 17, 2000 federal action and withdrew the associated hazardous waste listings and the hazardous waste segments of the LDRs in the prior RCRA Subtitle C update. See RCRA Subtitle C Update, USEPA Amendments (July 1, 1999, through December 31, 1999) (May 18, 2000), R00-13. In docket R00-13, the Board stated that it would include the UIC segments of the March 17, 2000 action in this UIC update docket, R00-11. The federal action of June 8, 2000, which is within the scope of docket R01-1, corrected the March 17, 2000 federal action. The sole remaining federal action involved in docket R01-1, that of May 15, 2000, contains a set of amendments intended only to streamline the federal rules, and as a result, they require no corresponding Board action to amend the Illinois rules.

For the foregoing reasons, and on its own motion, the Board consolidates the UIC update dockets R00-11 and R01-1 into a single action. This will allow the most expeditious and efficient implementation of both sets of amendments.

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

The following briefly summarizes the federal actions considered in this rulemaking.

Docket R00-11: July 1, 1999, through December 31, 1999

USEPA amended the federal UIC regulations on two occasions during the period July 1, 1999, through December 31, 1999. Each is summarized below:

64 Fed. Reg. 68546 (December 7, 1999)

USEPA adopted amendments relating to Class V injection wells. It consolidated the rules applicable to Class V wells into a new subpart. The rules ban new large cesspools and motor vehicle waste disposal wells immediately, and they will require existing cesspools and motor vehicle waste disposal wells to close by dates to be determined by the location of the well with respect to protected groundwater resources. The amendments include permit provisions applicable to the owners and operators of these Class V injection wells.

64 Fed. Reg. 70316 (December 16, 1999)

USEPA corrected its amendments of December 7, 1999.

Docket R01-1: January 1, 2000, through June 30, 2000

USEPA amended the federal UIC regulations on four occasions during the period January 1, 2000, through June 30, 2000. Each is summarized below:

65 Fed. Reg. 5024 (February 2, 2000)

USEPA corrected its amendments of December 7, 1999.

65 Fed. Reg. 14472 (March 17, 2000)

USEPA vacated the hazardous waste listings and LDRs for organobromine production wastes (formerly USEPA hazardous waste numbers K140 and U408) that it initially adopted on May 4, 1998 (63 Fed. Reg. 24596). One segment of these amendments vacating the LDRs relates to the underground injection of these wastes.

65 Fed. Reg. 30886 (May 15, 2000)

USEPA adopted a series of amendments to various of its National Pollutant Discharge Elimination System (NPDES) permit rules intended to streamline the regulations. One aspect of the amendments affects the federal UIC permit rules.

65 Fed. Reg. 36365 (June 8, 2000)

USEPA corrected its action of March 17, 2000.

Later UIC Amendments of Interest

The Board engages in ongoing monitoring of federal actions. As of the date of this opinion and accompanying order, we have identified no USEPA actions since June 30, 2000, that further amend the UIC rules. When the Board observes an action outside the nominal timeframe of a docket that would require expedited consideration in the pending docket, the Board expedites consideration of those actions. Federal actions that could warrant expedited consideration include those that directly affect the amendments involved in this docket, those for which compelling reasons would warrant consideration as soon as possible, and those for which the Board has received a request for expedited consideration.

Summary Listing of the Federal Actions Forming the Basis of the Board’s Actions in this Consolidated Docket

Based on the foregoing, the federal actions that form the basis for Board action in this update docket are as follows, in chronological order:

PUBLIC COMMENTS

The Board will receive public comments on this proposal for a period of 45 days following its publication in the Illinois Register. After that time, the Board will immediately consider adoption of the amendments, making any necessary changes made evident through the public comments. The Board will delay filing any adopted rules with the Secretary of State for 30 days after adoption, particularly to allow additional time for USEPA to review the adopted amendments before they are filed and become effective. The complete text of the proposed amendments appears at the end of this opinion and order.

DISCUSSION

The following discussion begins with a description of the types of deviations the Board makes from the literal text of federal regulations in adopting identical-in-substance rules. It is followed by a discussion of the amendments and actions undertaken in direct response to the federal actions involved in this proceeding. This first series of discussions is organized by federal subject matter, generally appearing in chronological order of the relevant Federal Register notices involved. Finally, this discussion closes with a description of the amendments and actions that are not directly derived from the federal actions.

General Revisions and Deviations from the Federal Text

In incorporating the federal rules into the Illinois system, some deviation from the federal text is unavoidable. This deviation arises primarily through differences between the federal and state regulatory structure and systems. Some deviation also arises through errors in and problems with the federal text itself. The Board conforms the federal text to the Illinois rules and regulatory scheme and corrects errors that we see in the text as we engage in these routine update rulemakings.

In addition to the amendments derived from federal amendments, the Board often finds it necessary to alter the text of various passages of the existing rules as provisions are opened for update in response to USEPA actions. This involves correcting deficiencies, clarifying provisions, and making other changes that are necessary to establish a clear set of rules that closely parallel the corresponding federal requirements within the codification scheme of the Illinois Administrative Code.

The Board updates the citations to the Code of Federal Regulations to the most recent version available. As of the date of this opinion, the most recent version of the Code of Federal Regulations available to the Board is the July 1, 1999 version. Thus, we have updated all citations to the 1999 version, adding references to later amendments using their appropriate Federal Register citation, where necessary.

The Board substituted “or” for “/” in most instances where this appeared in the federal base text, using “and” where more appropriate. The Board further used this opportunity to make a number of corrections to punctuation, grammar, spelling, and cross-reference format throughout the opened text. We changed “who” to “that” and “he” or “she” to “it,” where the person to which the regulation referred was not necessarily a natural person, or to “he or she,” where a natural person was evident; changed “which” to “that” for restrictive relative clauses; substituted “must” for “shall”; capitalized the section headings and corrected their format where necessary; and corrected punctuation within sentences.

In addition, the federal rules have been edited to establish a uniform usage throughout the Board’s regulations. For example, with respect to “shall,” “will,” and “may,” “must” is used when an action is required by the rule, without regard to whether the action is required of the subject of the sentence or not. “Shall” is no longer, since it is not used in everyday language. Thus, where a federal rule uses “shall,” the Board substitutes “must.” This is a break from our former practice where “shall” was used when the subject of a sentence has a duty to do something. “Will” is used when the Board obliges itself to do something. “May” is used when choice of a provision is optional. “Or” is used rather than “and/or,” and denotes “one or both.” “Either . . . or” denotes “one but not both.” “And” denotes “both.”

The Joint Committee on Administrative Rules JCAR has requested that the Board refer to the United States Environmental Protection Agency in the same manner throughout all of our bodies of regulations—i.e., air, water, drinking water, RCRA Subtitle D (municipal solid waste landfill), RCRA Subtitle C (hazardous waste), underground injection control (UIC), etc. The Board has decided to refer to the United States Environmental Protection Agency as “USEPA.” We will continue this conversion in future rulemakings as additional sections become open to amendment. We will further convert “EPA” used in federal text to “USEPA,” where USEPA is clearly intended.

The Board has assembled tables to aid in the location of these alterations and to briefly outline their intended purpose. The tables set forth the miscellaneous deviations from the federal text and corrections to the pre-amended base text of the rules in detail. The tables are set forth and explained beginning at page 12. There is no further discussion of most of the deviations and revisions elsewhere in this opinion.

Discussion of Particular Federal Actions

Regulations for Certain Class V Injection Wells—Parts 704 and 730

USEPA adopted amendments to the UIC regulations on December 7, 1999 (64 Fed. Reg. 68546) that impose requirements on certain Class V injection wells. The principal Class V wells affected are new and existing large capacity cesspools and motor vehicle waste injection wells. USEPA corrected these Class V well rules on December 16, 1999 (64 Fed. Reg. 70316), and February 2, 2000 (65 Fed. Reg. 5024). The new requirements derive from the settlement in Sierra Club v. Browner, No. 93-2644 (D.D.C.). Under the settlement, USPEA undertook a study of the impact of Class V wells on groundwater quality. The current rules are the first installment of regulations prompted by that study.

The new Class V injection well rules designate as “existing wells” those wells currently in operation or under construction by April 5, 2000. Those wells that are not existing wells are designated as “new injection wells.” The rules prohibit construction and operation of new or converted cesspools and motor vehicle waste disposal wells. The owner or operator of an existing cesspool must notify authorities and close the well by April 5, 2005. The fate of an existing motor vehicle waste disposal well depends on its location and the status of the State groundwater protection program where the well is located. In brief, for a motor vehicle waste disposal well that is located in a “ground water protection area” or “other sensitive ground water area,” as designated by the State, the owner or operator must obtain a permit or close the well by dates specified in the rules.

The Board has incorporated the federal amendments into the appropriate segments of the UIC regulations. We have done so with the deviations from the text of the federal amendments that are necessary to conform the requirements to the Illinois regulations. While USEPA used its “user-friendly” format for the federal rule, which the Board has converted to a more traditional direct format, while still retaining the substance of the federal rules. As a result, the volume of deviations from the literal text of the federal amendments is greater than normal for an identical-in-substance proceeding. Persons interested in the substance of the underlying federal action should refer to the notices that appeared in the December 7 and 16, 1999, and February 2, 2000 issues of the Federal Register. The tables that begin at page 12 of this opinion outline the deviations that the Board has made in adapting the text of the federal amendments.

A few of the issues raised during the course of adapting the federal rules for incorporation into the Illinois rules warrant specific mention in this discussion. Most of these relate to the groundwater protection aspects of the rule. These are specifically the following: (1) the federal names given required elements of the State program do not directly correlate with the names used in Illinois law; (2) various segments of the rules refer to federal requirements imposed on the State and not on regulated entities; (3) other segments of the rules impose requirements on regulated entities depending on the status of the State program; and (4) certain requirements clearly do not apply to entities in Illinois by their own terms. Other issues relate instead to the structure and content of the rules and have nothing to do with the groundwater protection aspects.

Under Section 1453 of SDWA (42 U.S.C. § 300j-13 (1998)), federal law provides for source water assessment programs administered by the states. The states are to delineate the boundaries of areas where groundwater is used as a source of drinking water. Illinois was required to submit a program for USEPA review and approval and was to begin implementation of the program immediately after USEPA approval. Illinois’ program can include elements of existing state programs intended to protect groundwater resources.

In Illinois, there are two statutes intended to protect groundwater resources used as sources of drinking water. First, Sections 14.1 through 14.6 of the Act (415 ILCS 5/14.1-14.6 (1998)) establish minimum setback zones around community supply wells and other potable water supply wells, and Sections 17.1 through 17.4 of the Act (415 ILCS 5/17.1-17.4 (1998)) provide for the evaluation of the adequacy of minimum setback zones around community water well supply wells and the establishment of a more extensive regulated recharge area around the wells as necessary to protect groundwater. The regulations of 35 Ill. Adm. Code 615 through 617 implement those provisions of the Act. Second, the Illinois Groundwater Protection Act (IGPA) (415 ILCS 55/8 (1998)) provides for the classification of groundwater resources in this State, based on the use and quality of the particular water, and for the establishment of groundwater quality standards for the water in the various classes. The regulations of 35 Ill. Adm. Code 620 classify Illinois groundwater resources and set forth the required groundwater quality standards. It is a violation of the Environmental Protection Act and Board regulations to cause a violation of the groundwater standards. See 415 ILCS 5/12(a) (1998) and 35 Ill. Adm. Code 620.115 (1998).

None of the groundwater protection provisions are directly involved in the December 7, 1999 federal Class V injection well regulations. However, the Class V well rules refer extensively to groundwater protection and the status of the State groundwater protection program. The federal rules define and refer to “ground water protection area” and “other sensitive ground water area.” At Section 144.86(c), USEPA defines a “ground water protection area” as a geographic area near or around the well used by a community water system or non-transient non-community water system (both defined in the drinking water regulations at 35 Ill. Adm. Code 611.101). 40 C.F.R. 144.86(c), as added at 65 Fed. Reg. 68546, 68569 (December 7, 1999). At 40 C.F.R. 144.86(g), USEPA defines an “other sensitive ground water area” as an area other than a “ground water protection area” that is “critical to protecting underground sources of drinking water from contamination.” 40 C.F.R. 144.86(g), as added at 65 Fed. Reg. 68546, 68569 (December 7, 1999).

To deal with the first issue relating to the differences in phrasing used under the federal rules and the existing Illinois provisions relating to the protection of groundwater resources, the Board has retained the federal phrasing throughout the Class V well regulations. Thus, the Board has retained the names “groundwater protection area” and “other sensitive groundwater area,” with the only changes being rendering “groundwater” as a single word and the addition of the word “groundwater” to the federal “other sensitive area” in Section 704.286. The Board, however, has added to the definitions in Section 704.286 a statement to the effect that a “setback zone,” as defined in Section 3.61 of the Act (415 ILCS 5/3.61 (1998)) and regulated pursuant to Sections 14.1 through 14.6 of the Act (415 ILCS 5/14.1-14.6 (1998)), is considered a “groundwater protection area,” and that a “regulated recharge area,” as defined in Section 3.67 of the Act (415 ILCS 5/3.67 (1998)) and regulated pursuant to Sections 17.1 through 17.4 of the Act (415 ILCS 5/17.1-17.4 (1998)), is considered an “other sensitive groundwater area.”

The Board has not added references to the IGPA and 35 Ill. Adm. Code 620 to either definition. Although the IGPA and the Board regulations adopted to implement it, protect groundwater quality, they do not prohibit the location of any type of facility in any class of groundwater area, including Class III special resource groundwater area. It would be inappropriate for the Board to effectively incorporate such a prohibition in the context of an identical-in-substance proceeding like this one, since such a prohibition would not be derived from some similar federal prohibition. Rather, the Board has added references in Board notes at Section 704.285(b) and at the definition of “State drinking water source assessment and protection program” in Section 704.286 that acknowledge the significance of the IGPA and associated rules to the protection of groundwater in Illinois. If the Agency feels that Class III or any other class of groundwater should be included as either a “groundwater protection area” or “other sensitive groundwater area” as used in the Class V injection well rules, it should submit a rulemaking proposal before the Board to that effect pursuant to Sections 27 and 28 of the Act.

The second and third sets of issues that the Board confronted in this proceeding also relate to the federal requirements that the State designate groundwater protection areas and other sensitive groundwater areas. Certain segments of the federal Class V injection well rules outline the federal requirements that the State follow in designating these areas. There are two groups of rules that do this.

One group of the “state-requirement” rules appears to outline the federal requirements imposed on the states for the purpose of informing the regulated community. An example includes 40 C.F.R. 144.87(b). The language of subsection (b) outlines what the states must do, then sets forth the applicability of certain requirements should the states fail to fulfill those obligations. It outlines the effects on the regulated community of a state’s failure to fulfill its obligations. It is not possible at this time for the Board to determine that Illinois had fulfilled these requirements for state action. Accordingly, the impact of a failure to satisfy these requirements might have significant impact on what requirements apply to a facility in this State. In this instance, the Board kept the federal language, adding an explanatory Board note about the requirements imposing obligations only on the State.

The other group of “state-requirement” rules has nothing to do with what is imposed on regulated entities. Examples include 40 C.F.R. 144.87(c) and (h). The language of subsection (c) includes a reiteration of the deadline for state action and outlines the availability of a federal extension of that deadline. Since the deadline appears in the preceding subsection, the Board omitted a reiteration of the deadline and included only the language relating to the effect of an extension of the deadline. The language retained includes certain deadlines for action by the regulated community that are contingent on the regulatory status of the Illinois Program. In subsection (h), USEPA outlined action that it encourages states to undertake, none of which relates to implementation of the substantive requirements of the Class V well rule. Thus, the Board replaced major segments of the federal language of subsection (h) with a Board note explaining that we had omitted federal language encouraging the state to undertake certain actions but not imposing any requirements on the regulated community.

As to those provisions that clearly do not apply in Illinois, the Board has omitted those, inserting explanatory Board notes in appropriate segments of the rules. This occurred in Section 704.283(b). Corresponding 40 C.F.R. 144.83(b), relating to notification, imposes requirements based on the primacy status of the applicable state. Since that table itself lists Illinois as a “Primacy State,” it was unnecessary for the Board to include the requirements applicable to a facility in a “Direct Implementation State.”

One deviation from the literal text of the federal rule was intended to remove a redundancy and an area of potential conflict. New provision 40 C.F.R. 144.80 defines a Class V injection well by exclusion, i.e., it does so by outlining the various classes of injection wells and defining a Class V well as one that is not within another class. This language is nearly identical to that of 40 C.F.R. 144.6, from which 35 Ill. Adm. Code 704.106 is derived. The Board has removed the duplicate language from 40 C.F.R. 144.80 in new Section 704.280 and replaced it with language indicating that a Class V injection well is defined in Section 704.106.

Another deviation from the structure of the federal rule involved changing the requirements in the tables at new 40 C.F.R. 144.88 to the standard subsection format in corresponding 35 Ill. Adm. Code 704.288. These provisions are key to the Class V well rule, and the Board believes that they are more clearly understood in the standard format. The Board interprets the requirements as follows: if the condition of column one is true of the facility and the condition of one cell in column two is also true, then the adjacent cell in column three indicates the requirement that applies. We further interpret USEPA’s intent to be that all of the conditions set forth in the first column are considered alternatives to be read in conjunction with the corresponding condition in the first column. Thus, the conditions in cells (1)(i), (1)(ii), (1)(iii), etc. are each alternatives to one another.

A final set of deviations from the literal text of the federal rule is intended to clarify ambiguity in the rule. USEPA repeatedly refers to the additional requirement of new Subpart I. One section, 40 C.F.R. 144.88, defines the additional requirements. Thus, the Board has repeatedly changed the reference to read “the additional requirements of Section 704.288” at Sections 704.284(b)(2); 704.285(a), (b), and (c); 704.286; and 704.287(h). In 40 C.F.R. 144.88(a), USEPA refers to “new requirements,” and in 40 C.F.R. 144.88(c), USEPA refers to both “new requirements” and “rule requirements.” In context, the Board reads these as meaning the same as “additional requirements,” so we have changed to this wording in corresponding Section 704.288(a) and (c).

Finally, the Board has added Board notes explaining the right of an owner or operator to appeal certain Agency determinations to the Board pursuant to Section 40 of the Act (415 ILCS 5/40 (1998)). In 40 C.F.R. 144.87(b)(2), (e), and (h) and 144.88(b)(1)(i), (b)(1)(ii), and (b)(1)(v), the State may extend the deadline for an owner or operator to comply if it determines that the most efficient compliance option is connection to a sanitary sewer or installation of new treatment technology. While the Agency is given discretion to determine whether or not the most efficient compliance option is indeed connection to a sanitary sewer or the installation of new technology, the Board cannot allow the Agency the additional discretion of determining whether or not to extend the deadline for compliance. The Board then added a Board note explaining the right to appeal the Agency determination. Similarly, under At corresponding Sections 704.287(b)(2), (e), and (h) and 704.288(b)(1)(A), (b)(1)(B), and (b)(1)(E), the rule provides that the Agency must extend the deadline if it makes the compliance determination, and a Board note explains the right to appeal.

The Board requests public comment on incorporation of the December 17, 1999 federal Class V injection well rule and the subsequent corrections of December 16, 1999, and February 5, 2000.

Organobromine Production Waste Rule—Section 738.118

On March 17, 2000 (65 Fed. Reg. 14472), USEPA withdrew the hazardous waste listings for organobromine production wastes (USEPA hazardous waste numbers K140 and U408) and the associated LDRs for these wastes. This was in response to a court order in Great Lakes Chemical Corp. v. EPA, No. 98-1312, 1999 WL 322757 (D.C. Cir. April 9, 1999), which vacated the listings. On June 8, 2000 (65 Fed. Reg. 36365), USEPA corrected its March 17, 2000 action. The Board incorporated all the RCRA Subtitle C hazardous waste aspects of the March 17, 2000 federal withdrawal in the previous hazardous waste update, RCRA Subtitle C Update, USEPA Regulations (July 1, 1999, through December 31, 1999) (May 18, 2000), R00-13. A segment of the withdrawn LDRs restricted underground injection of these wastes, and it is that segment that is involved in this present docket.

USEPA adopted the recently-withdrawn organobromine waste rule on May 4, 1998 (63 Fed. Reg. 24596). The Board incorporated the hazardous waste listings and associated LDRs in RCRA Subtitle C Update, USEPA Regulations (July 1, 1997, through December 31, 1997) (December 17, 1998), R98-21/R99-2/R99-7 (Consolidated). The effect of the March 17, 2000 federal withdrawal is that organobromine production wastes are no longer listed hazardous wastes, so that there is no longer a restriction on their disposal by underground injection.

The Board has incorporated the March 17, 2000 and June 8, 2000 federal actions into the present update docket. The Board has incorporated the federal revisions into Section 738.118 without significant deviation from the federal text. The single minor deviation from the federal text is listed in the table that begins at page 12 of this opinion. The Board directs attention to the federal notice of final actions in the March 17, 2000 and June 8, 2000 issues of the Federal Register for further details of the federal decision to withdraw the hazardous waste listings for organobromine production wastes.

The Board requests public comment on our incorporation of the March 17, 2000 withdrawal of and June 8, 2000 correction of the restrictions on injection of the former USEPA hazardous waste numbers K140 and U408.

Streamlining Amendments to the NPDES Rules

USEPA adopted a series of amendments on May 15, 2000 (65 Fed. Reg. 30886), intended to streamline its NPDES rules. Included among the various amendments was an amendment to 40 C.F.R. 144.52, which is a UIC program rule. The amendment involved the removal of a cross-reference to the NPDES rules. Corresponding 35 Ill. Adm. Code 702.160 in the Illinois rules does not include a similar cross-reference. Accordingly, the Board sees no need to amend the Illinois rules in response to this federal action. Thus, no similar amendment is included in this docket.

The Board requests public comment on our decision not to act in response to the May 15, 2000 federal streamlining amendments to the NPDES rules.

Agency or Board Action

Section 7.2(a)(5) of the Act requires the Board to specify for which portions of the program USEPA will retain decision making authority. Based on the general division of functions within the Act and other Illinois statutes, the Board is also to specify which State agency is to make decisions.

In situations in which the Board has determined that USEPA will retain decision-making authority, the Board has replaced “Regional Administrator” with USEPA, so as to avoid specifying which office within USEPA is to make a decision.

In some identical-in-substance rules, certain decisions pertaining to a permit application are not appropriate for the Agency to consider. In determining the general division of authority between the Agency and the Board, the following factors should be considered:

There are four common classes of Board decisions: variance, adjusted standard, site-specific rulemaking, and enforcement. The first three are methods by which a regulation can be temporarily postponed (variance) or adjusted to meet specific situations (adjusted standard or site-specific rulemaking). There often are differences in the nomenclature for these decisions between the USEPA and Board regulations.

Discussion of Miscellaneous Housekeeping Amendments

The tables below list numerous corrections and amendments that are not based on current federal amendments. The first table (beginning immediately below) includes deviations made in this Proposal for Public Comment from the verbatim text of the federal amendments. The second table (beginning below at page 31) contains corrections and clarifications that the Board made in the base text involved in this proposal. The amendments listed in this second table are not directly derived from the current federal amendments. Some of the entries in these tables are discussed further in appropriate segments of the general discussion beginning at page 4 of this opinion.

Table 1:

Deviations from the Text of the Federal Amendments

Table 2:

Board Housekeeping Amendments

HISTORY OF RCRA SUBTITLE C AND UIC ADOPTION

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY OR BOARD ACTION

EDITORIAL CONVENTIONS

It has previously been the practice of the Board to include a historical discussion in its RCRA Subtitle C and UIC identical-in-subs tance rulemaking proposals. However, in the last RCRA Subtitle C update docket, RCRA Subtitle C Update, USEPA Amendments (July 1, 1999, through, December 31, 1999) (May 18, 2000), R00-13, the Board indicated that it would cease this practice. Therefore, for a complete historical summary of the Board’s RCRA Subtitle C and UIC rulemakings and programs, interested persons should refer back to the May 18, 2000 opinion and order in R00-13.

The historical summary contains all Board actions taken to adopt and maintain these programs since their inception and until May 18, 2000. It includes a listing of all site-specific rulemaking and adjusted standards proceedings filed that relate to these programs. It also lists all USEPA program authorizations issued during that time frame. As necessary the Board will continue to update the historical summary as a segment of the opinion in each RCRA Subtitle C and UIC update docket, but those opinions will not repeat the information contained in the opinion of May 18, 2000 in docket R00-13.

The following summarizes the history of the Illinois RCRA Subtitle C hazardous waste and UIC programs since May 18, 2000:

History of RCRA Subtitle C and State Hazardous Waste Rules Adoption

The Board has adopted and amended the RCRA Subtitle C hazardous waste rules in the following docket since May 18, 2000:

History of UIC Rules Adoption

The Board has adopted and amended Underground Injection Control (UIC) regulations in the following dockets since May 18, 2000:

ORDER

The complete text of the proposed amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER b: PERMITS

PART 702

RCRA AND UIC PERMIT PROGRAMS

SUBPART A: GENERAL PROVISIONS

Section

SUBPART B: PERMIT APPLICATIONS

Section

SUBPART C: PERMIT CONDITIONS

Section

SUBPART D: ISSUED PERMITS

Section

AUTHORITY: Implementing Sections 13 and 22.4 and authorized by Section 27 of the Environmental Protection Act [415 ILCS 5/13, 22.4 and 27].

SOURCE: Adopted in R81-32, 47 PCB 93, at 6 Ill. Reg. 12479, effective May 17, 1982; amended in R82-19, at 53 PCB 131, 7 Ill. Reg. 14352, effective May 17, 1982; amended in R84-9 at 9 Ill. Reg. 11926, effective July 24, 1985; amended in R85-23 at 10 Ill. Reg. 13274, effective July 29, 1986; amended in R86-1 at 10 Ill. Reg. 14083, effective August 12, 1986; amended in R86-28 at 11 Ill. Reg. 6131, effective March 24, 1987; amended in R87-5 at 11 Ill. Reg. 19376, effective November 12, 1987; amended in R87-26 at 12 Ill. Reg. 2579, effective January 15, 1988; amended in R87-29 at 12 Ill. Reg. 6673, effective March 28, 1988; amended in R87-39 at 12 Ill. Reg. 13083, effective July 29, 1988; amended in R89-1 at 13 Ill. Reg. 18452, effective November 13, 1989; amended in R89-2 at 14 Ill. Reg. 3089, effective February 20, 1990; amended in R89-9 at 14 Ill. Reg. 6273, effective April 16, 1990; amended in R92-10 at 17 Ill. Reg. 5769, effective March 26, 1993; amended in R93-16 at 18 Ill. Reg. 6918, effective April 26, 1994; amended in R94-5 at 18 Ill. Reg. 18284, effective December 20, 1994; amended in R95-6 at 19 Ill. Reg. 9913, effective June 27, 1995; amended in R95-20 at 20 Ill. Reg. 11210, effective August 1, 1996; amended in R96-10/R97-3/R97-5 at 22 Ill. Reg. 532, effective December 16, 1997; amended in R99-15 at 23 Ill. Reg. 9359, effective July 26, 1999; amended in R00-11/R01-1 at 24 Ill. Reg. ________, effective ______________________.

The following definitions apply to 35 Ill. Adm. Code 702, 703, 704, and 705. Terms not defined in this Section have the meaning given by the appropriate Act. When a defined term appears in a definition, the defined term is sometimes placed within quotation marks as to an aid to readers. When a definition applies primarily to one or more programs, those programs appear in parentheses after the defined terms.

“Act” or “Environmental Protection Act” means the Environmental Protection Act [415 ILCS 5].

“Administrator” means the Administrator of the United States Environmental Protection Agency or an authorized representative.

“Agency” means the Illinois Environmental Protection Agency.

“Application” means the Agency forms for applying for a permit. For RCRA, application also includes the information required by the Agency under 35 Ill. Adm. Code 703.182 through 703.212 (contents of Part B of the RCRA application).

“Appropriate act and regulations” means the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act (SDWA), or the “Environmental Protection Act”, whichever is applicable, and applicable regulations promulgated under those statutes.

“Approved program or approved state” means a state or interstate program that has been approved or authorized by USEPA under 40 CFR 271 (1996) (RCRA) or Section 1422 of the SDWA (UIC).

“Aquifer” (RCRA and UIC) means a geological “formation”, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring.

“Area of review” (UIC) means the area surrounding an injection well described according to the criteria set forth in 35 Ill. Adm. Code 730.106, or in the case of an area permit, the project area plus a circumscribing area the width of that is either 402 meters (1/4 one-quarter of a mile) or a number calculated according to the criteria set forth in 35 Ill. Adm. Code 730.106.

“Board” means the Illinois Pollution Control Board.

“Cesspool” means a “drywell” that receives untreated sanitary waste containing human excreta and which sometimes has an open bottom or perforated sides.

“Closure” (RCRA) means the act of securing a “Hazardous Waste Management Facility” pursuant to the requirements of 35 Ill. Adm. Code 724.

“Component” (RCRA) means any constituent part of a unit or any group of constituent parts of a unit that are assembled to perform a specific function (e.g., a pump seal, pump, kiln liner, or kiln thermocouple).

“Contaminant” (UIC) means any physical, chemical, biological, or radiological substance or matter in water.

“Corrective action management unit” or “CAMU” means an area within a facility that is designated by the Agency under Subpart S of 35 Ill. Adm. Code 724.Subpart S for the purpose of implementing corrective action requirements under 35 Ill. Adm. Code 724.201 and RCRA section 3008(h). A CAMU shall must only be used for the management of remediation wastes pursuant to implementing such corrective action requirements at the facility.

BOARD NOTE: USEPA must also designate a CAMU until it grants this authority to the Agency. See the note following 35 Ill. Adm. Code 724.652.

“CWA” means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972), P.L. 92-500, as amended by P.L. 95-217 and P.L. 95-576; 33 USC 1251 et seq. (1996).

“Date of approval by USEPA of the Illinois UIC program” means March 3, 1984.

“Director” means the Director of the Illinois Environmental Protection Agency or the Director’s designee.

“Disposal” (RCRA) means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any “hazardous waste” into or on any land or water so that such hazardous waste or any constituent of the waste may enter the environment or be emitted into the air or discharged into any waters, including groundwater.

“Disposal facility” (RCRA) means a facility or part of a facility at which “hazardous waste” is intentionally placed into or on the land or water, and at which hazardous waste will remain after closure. The term disposal facility does not include a corrective action management unit into which remediation wastes are placed.

“Draft permit” means a document prepared under 35 Ill. Adm. Code 705.141 indicating the Agency’s tentative decision to issue, deny, modify, terminate, or reissue a “permit”. A notice of intent to deny a permit, as discussed in 35 Ill. Adm. Code 705.141, is a type of “draft permit”. A denial of a request for modification, as discussed in 35 Ill. Adm. Code 705.128, is not a “draft permit”. A “proposed permit” is not a “draft permit”.

“Drywell” means a well, other than an improved sinkhole or subsurface fluid distribution system, that is completed above the water table so that its bottom and sides are typically dry, except when receiving fluids.

“Drilling mud” (UIC) means a heavy suspension used in drilling an “injection well”, introduced down the drill pipe and through the drill bit.

“Elementary neutralization unit” means a device which:

Is used for neutralizing wastes that are hazardous wastes only because they exhibit the corrosivity characteristics defined in 35 Ill. Adm. Code 721.122, or are listed in Subpart D of 35 Ill. Adm. Code 721.Subpart D only for this reason; and

Meets the definition of tank, tank system, container, transport vehicle, or vessel in 35 Ill. Adm. Code 720.110.

“Emergency permit” means a RCRA or UIC “permit” issued in accordance with 35 Ill. Adm. Code 703.221 or 704.163, respectively.

“Environmental Protection Agency” (“EPA” or “USEPA”) means the United States Environmental Protection Agency.

“Exempted aquifer” (UIC) means an “aquifer” or its portion that meets the criteria in the definition of “underground source of drinking water” but which has been exempted according to the procedures in 35 Ill. Adm. Code 702.105, 704.104, and 704.123(b).

“Existing hazardous waste management (HWM) facility” or “existing facility” means a facility that was in operation or for which construction commenced on or before November 19, 1980. A facility has commenced construction if:

The owner or operator has obtained the federal, State, and local approvals or permits necessary to begin physical construction; and

Either:

A continuous on-site, physical construction program has begun; or

The owner or operator has entered into contractual obligations for physical construction of the facility that cannot be canceled or modified without substantial loss and which are to be completed within a reasonable time.

“Existing injection well” (UIC) means an “injection well” other than a “new injection well”.

“Facility mailing list” means the mailing list for a facility maintained by the Agency in accordance with 35 Ill. Adm. Code 705.163(a).

“Facility or activity” means any “HWM facility”, UIC “injection well”, or any other facility or activity (including land or appurtenances thereto) that is subject to regulations under the Illinois RCRA or UIC program.

“Facility mailing list” (RCRA) means the mailing list for a facility maintained by the Agency in accordance with 35 Ill. Adm. Code 705.163.

“Federal, state, and local approvals or permits necessary to begin physical construction” means permits and approvals required under federal, State, or local hazardous waste control statutes, regulations, or ordinances. (See 35 Ill. Adm. Code 700.102.)

“Final authorization” (RCRA) means approval by USEPA of the Illinois Hazardous Waste Management Program that has met the requirements of Section 3006(b) of RCRA and the applicable requirements of 40 CFR 271, Subpart A (1996). USEPA granted initial final authorization on January 31, 1986.

“Fluid” (UIC) means any material or substance that flows or moves whether in a semisolid, liquid, sludge, gas, or any other form or state.

“Formation” (UIC) means a body of rock characterized by a degree of lithologic homogeneity that is prevailingly, but not necessarily, tabular and is mappable on the earth’s surface or traceable in the subsurface.

“Formation fluid” (UIC) means “fluid” present in a “formation” under natural conditions, as opposed to introduced fluids, such as “drilling mud”.

“Functionally equivalent component” (RCRA) means a component that performs the same function or measurement and which meets or exceeds the performance specifications of another component.

“Generator” (RCRA) means any person, by site location, whose act or process produces “hazardous waste” identified or listed in 35 Ill. Adm. Code 721.

“Groundwater” (RCRA and UIC) means a water below the land surface in a zone of saturation.

“Hazardous waste” (RCRA and UIC) means a hazardous waste as defined in 35 Ill. Adm. Code 721.103.

“Hazardous waste management facility” (“HWM facility”) means all contiguous land and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of “hazardous waste”. A facility may consist of several “treatment”, “storage”, or “disposal” operational units (for example, one or more landfills, surface impoundments, or combinations of them).

“HWM facility” (RCRA) means “Hazardous Waste Management facility”.

“Improved sinkhole” means a naturally occurring karst depression or other natural crevice that is found in volcanic terrain and other geologic settings that have been modified by man for the purpose of directing and emplacing fluids into the subsurface.

“Injection well” (RCRA and UIC) means a “well” into which “fluids” are being injected.

“Injection zone” (UIC) means a geological “formation”, group of formations, or part of a formation receiving fluids through a “well”.

“In operation” (RCRA) means a facility that is treating, storing, or disposing of “hazardous waste”.

“Interim authorization” (RCRA) means approval by USEPA of the Illinois Hazardous Waste Management program that has met the requirements of Section 3006(g)(2) of RCRA and applicable requirements of 40 CFR 271 (1996). This happened on May 17, 1982.

“Interstate agency” means an agency of two or more states established by or under an agreement or compact approved by the Congress, or any other agency of two or more states having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the “appropriate Act and regulations”.

“Major facility” means any RCRA or UIC “facility or activity” classified as such by the Regional Administrator or the Agency.

“Manifest” (RCRA and UIC) means the shipping document originated and signed by the “generator” that contains the information required by Subpart B of 35 Ill. Adm. Code 722.Subpart B.

“National Pollutant Discharge Elimination System” means the program for issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits and imposing and enforcing pretreatment requirements under Section 12(f) of the Environmental Protection Act and Subpart A of 35 Ill. Adm. Code 309.Subpart A and 310. The term includes an “approved program”.

“New HWM facility” (RCRA) means a “Hazardous Waste Management facility” that began operation or for which construction commenced after November 19, 1980.

“New injection well” (UIC) means a “well” that began injection after March 3, 1984, the date of USEPA approval of the UIC program for the State of Illinois.

BOARD NOTE: See 40 CFR 147.700 (1998) and 49 Fed. Reg. 3991 (Feb. 1, 1984).

“Off-site” (RCRA) means any site that is not “on-site”.

“On-site” (RCRA) means on the same or geographically contiguous property that may be divided by public or private right(s)-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing as opposed to going along, the right(s)-of-way. Non-contiguous properties owned by the same person, but connected by a right-of-way that the person controls and to which the public does not have access, is also considered on-site property.

“Owner or operator” means the owner or operator of any “facility or activity” subject to regulation under the RCRA or UIC programs.

“Permit” means an authorization, license, or equivalent control document issued to implement the requirements of this Part and 35 Ill. Adm. Code 703, 704, and 705.

“Permit” includes RCRA “permit by rule” (35 Ill. Adm. Code 703.141), UIC area permit (35 Ill. Adm. Code 704.162), and RCRA or UIC “Emergency Permit” (35 Ill. Adm. Code 703.221 and 704.163). “Permit” does not include RCRA interim status (35 Ill. Adm. Code 703.153 through 703.157), UIC authorization by rule (Subpart C of 35 Ill. Adm. Code 704.Subpart C), or any permit that has not yet been the subject of final Agency action, such as a “Draft Permit” or a “Proposed Permit”.

“Person” means any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, state agency, or any other legal entity, or their legal representative, agency, or assigns.

“Physical construction” (RCRA) means excavation, movement of earth, erection of forms or structures, or similar activity to prepare an “HWM facility” to accept “hazardous waste”.

“Plugging” (UIC) means the act or process of stopping the flow of water, oil, or gas into or out of a formation through a borehole or well penetrating that formation.

“Point of injection” means the last accessible sampling point prior to waste fluids being released into the subsurface environment through a Class V injection well. For example, the point of injection of a Class V septic system might be the distribution box—the last accessible sampling point before the waste fluids drain into the underlying soils. For a dry well, it is likely to be the well bore itself.

“POTW” means “publicly owned treatment works”.

“Project” (UIC) means a group of wells in a single operation.

“Publicly owned treatment works” (“POTW”) is as defined in 35 Ill. Adm. Code 310.

“Radioactive waste” (UIC) means any waste that contains radioactive material in concentrations that exceed those listed in 10 CFR 20, Appendix B, Table II, Column 2, incorporated by reference in 35 Ill. Adm. Code 720.111.

“RCRA” means the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (P.L. 94-580, as amended by P.L. 95-609, P.L. 96-510, 42 USC 6901 et seq. (1996)). For the purposes of regulation under 35 Ill. Adm. Code 700 through 705, 720 through 728, and 739, “RCRA” refers only to RCRA Subtitle C. This does not include the RCRA Subtitle D (municipal solid waste landfill) regulations, found in 35 Ill. Adm. Code 810 through 815, and the RCRA Subtitle I (underground storage tank) regulations found in 35 Ill. Adm. Code 731 and 732.

“RCRA permit” means a permit required under Section 21(f) of the Environmental Protection Act.

“Regional Administrator” means the Regional Administrator for the USEPA Region in which the facility is located or the Regional Administrator’s designee.

“Remedial Action Plan” or “RAP” means a special form of RCRA permit that a facility owner or operator may obtain pursuant to Subpart H of 35 Ill. Adm. Code 703.Subpart H, instead of a RCRA permit issued under this Part and 35 Ill. Adm. Code 703, to authorize the treatment, storage, or disposal of hazardous remediation waste (as defined in 35 Ill. Adm. Code 720.110) at a remediation waste management site.

“Sanitary waste” means liquid or solid wastes originating solely from humans and human activities, such as wastes collected from toilets, showers, wash basins, sinks used for cleaning domestic areas, sinks used for food preparation, clothes washing operations, and sinks or washing machines where food and beverage serving dishes, glasses, and utensils are cleaned. Sources of these wastes may include single or multiple residences, hotels and motels, restaurants, bunkhouses, schools, ranger stations, crew quarters, guard stations, campgrounds, picnic grounds, day-use recreation areas, other commercial facilities, and industrial facilities, provided the waste is not mixed with industrial waste.

“Schedule of compliance” means a schedule of remedial measures included in a “permit”, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the “appropriate Act and regulations”.

“SDWA” means the Safe Drinking Water Act (P.L. 93-523, as amended, 42 USC 300f et seq. (1996)).

“Septic system” means a well, as defined in this Section, that is used to emplace sanitary waste below the surface and which is typically comprised of a septic tank and subsurface fluid distribution system or disposal system.

“Site” means the land or water area where any “facility or activity” is physically located or conducted, including adjacent land used in connection with the facility or activity.

“SIC code” means codes pursuant to the Standard Industrial Classification Manual incorporated by reference in 35 Ill. Adm. Code 720.111.

“State” means the State of Illinois.

“State Director” means the Director of the Illinois Environmental Protection Agency.

“State/USEPA agreement” means an agreement between the Regional Administrator and the State that coordinates USEPA and State activities, responsibilities, and programs, including those under the RCRA and SDWA.

“Storage” (RCRA) means the holding of “hazardous waste” for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere.

“Stratum (plural strata)” (UIC) means a single sedimentary bed or layer, regardless of thickness, that consists of generally the same kind of rock material.

“Subsurface fluid distribution system” means an assemblage of perforated pipes, drain tiles, or other similar mechanisms intended to distribute fluids below the surface of the ground.

“Total dissolved solids” (UIC) means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR 136, incorporated by reference in 35 Ill. Adm. Code 720.111.

“Transfer facility” means any transportation related facility, including loading docks, parking areas, storage areas, and other similar areas where shipments of hazardous wastes are held during the normal course of transportation.

“Transferee” (UIC) means the owner or operator receiving ownership or operational control of the well.

“Transferor” (UIC) means the owner or operator transferring ownership or operational control of the well.

“Transporter” (RCRA) means a person engaged in the off-site transportation of “hazardous waste” by air, rail, highway, or water.

“Treatment” (RCRA) means any method, technique, process, including neutralization, designed to change the physical, chemical, or biological character or composition of any “hazardous waste” so as to neutralize such wastes, or so as to recover energy or material resources from the waste, or so as to render such wastes non-hazardous or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or reduced in volume.

“UIC” means the Underground Injection Control program.

“Underground injection” (UIC) means a “well injection”.

“Underground source of drinking water” (“USDW”) (RCRA and UIC) means an “aquifer” or its portion that is not an “exempted aquifer” and of which either of the following is true:

It supplies any public water system; or

It contains a sufficient quantity of groundwater to supply a public water system; and

It currently supplies drinking water for human consumption; or

It contains less than 10,000 mg/1 total dissolved solids.

“USDW” (RCRA and UIC) means an “underground source of drinking water”.

“Wastewater treatment unit” means a device which:

Is part of a wastewater treatment facility that is subject to regulation under Subpart A of 35 Ill. Adm. Code 309.Subpart A or 310; and

Receives and treats or stores an influent wastewater that is a hazardous waste as defined in 35 Ill. Adm. Code 721.103, or generates and accumulates a wastewater treatment sludge that is a hazardous waste as defined in 35 Ill. Adm. Code 721.103, or treats or stores a wastewater treatment sludge that is a hazardous waste as defined in 35 Ill. Adm. Code 721.103; and

Meets the definition of tank or tank system in 35 Ill. Adm. Code 720.110.

“Well” (UIC) means a bored, drilled, or driven shaft, or a dug hole, whose depth is greater than the largest surface dimension; a dug hole whose depth is greater than the largest surface dimension; or an improved sinkhole; or, a subsurface fluid distribution system.

Well injection means the subsurface emplacement of fluids through a well.

“Well injection” (UIC) means the subsurface emplacement of “fluids” through a bored, drilled, or driven “well”; or through a dug well, where the depth of the dug well is greater than the largest surface dimension.

BOARD NOTE: Derived from 40 CFR 144.3 (19981999), as amended at 64 Fed. Reg. 68565 (Dec. 7, 1999), and 270.2 (19981999), as amended at 63 Fed. Reg. 65941 (Nov. 30, 1998).

(Source: Amended at 24 Ill. Reg. ________, effective ______________________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER b: PERMITS

PART 704

UIC PERMIT PROGRAM

SUBPART A: GENERAL PROVISIONS

Section

SUBPART B: PROHIBITIONS

Section

SUBPART C: AUTHORIZATION OF UNDERGROUND INJECTION BY RULE

Section

SUBPART D: APPLICATION FOR PERMIT

Section

SUBPART E: PERMIT CONDITIONS

Section

SUBPART F: REQUIREMENTS FOR WELLS INJECTING HAZARDOUS WASTE

Section

SUBPART G: FINANCIAL RESPONSIBILITY FOR CLASS I HAZARDOUS WASTE INJECTION WELLS

Section

Section

SUBPART I: REQUIREMENTS FOR CLASS V INJECTION WELLS

Section