ILLINOIS POLLUTION CONTROL BOARD
April
27,
1989
IN THE MATTER
OF:
)
UST UPDATE, USEPA REGULATIONS
)
R88-27
(SEPTEMBER
23, 1988)
)
FINAL ORDER.
ADOPTED RULES
OPINION
OF THE BOARD
(by J. Anderson):
By
a separate Order,
pursuant to Section 22.4(e)
of the Environmental
Protection Act
(Act),
the Board
is amending the UST underground storage tank
regulations.
1Section 22.4 of the Act governs adoption of
regulations establishing
the
RCRA program
in
Illinois.
Section 22.4(e) provides for quick adoption of
regulations which are °identical in
substanc&’
to federal
regulations.
Section 22.4(e)
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 major federal
amendments which
appeared at
53 Fed. Reg.
37082,
September 23,
1988.
The Board
proposed
to
adopt
identical
in substance rules
on February 2,
1989.
The proposal
appeared on March
3,
1989,
at
13 Ill.
Reg.
2650.
The
Board allowed
public coment
for 45
days after the date of publication.
PUBLIC COMMENT
The Board
received
the following public comment
in
response to the
proposed Opinion and Order:
PC
2
Illinois Environmental
Protection Agency (IEPA),
April
5,
1989
PC
3
Administrative Code Unit,
April
5,
1989
PC
4
United States Environmental
Protection Agency
(USEPA), April
10,
1989.
USEPA provided the Board with
a detailed review of the Proposed Opinion
and Order,
including suggestions for corrections
of many minor errors
in the
Opinion
and text of the rules.
Most of these have been corrected,
and will
‘The Board acknowledges
the contributions
of Morton Dorothy
in drafting
the Opinion and Order.
98—413
—2-
not be specifically mentioned
in the Opinion.
HISTORY OF UST RULES
The UST rules
are contained in
35
Ill. Adm. Code 731.
They were adopted
and amended
as
follows:
R86-1
71
PCB 110, July 11, 1986;
10 Ill. Reg.
13998, August
22,
1986.
R86-28
75 PCB
306, February 5,
1987;
and
76
PCB 195, March 5,
1987;
11 Ill. Reg. 6017,
April
3,
1987.
Correction
at
77
PCB 235,
April
16,
1987;
11
Ill.
Reg.
8684, May
1,
1987.
Prior to
this Docket, the UST rules
have been addressed
in the RCRA
update Dockets.
The Board
has separated the September 23, 1988 rules
from the
RCRA update process because of the size and timing of the rulemaking, and
because
of the desirability of
developing
a
separate mailing list for persons
interested only
in tanks.
The Board will
consider recombining the RCRA and
UST updates after
initial
adoption of the program,
including the October
26
financial
assurance
rules.
USEPA added financial
assurance
rules
to the UST program
at
53 Fed. Reg.
43370, October
26,
1988.
The Board has followed USEPA’s
lead and addressed
these amendments
in
a separate Docket,
R89-4,
proposed
on April
6,
1989.
STATUTORY AUTHORITY
Section
22.4(e) of the Act was
added
by P.A. 84-1072.
This was
implemented
in R86—1
and R86-28.
Section 22.4(e) was amended by P.A. 85-
861.
Section 22.4(e) was probably
renumbered to Section
22.4(d)
by S.B. 1834
(P.A.
85-1048) which deleted old Section
22.4(d).
However,
in this Opinion,
the Board will continue to
refer
to the UST authority as
“Section 22.4(e)”,
the numbering used
in P.A.
85-861.
Among other things,
P.A. 1048 added
Section 7.2 of the Act, which defined “identical
in substance”,
and modified
the
time requirements for adoption of these
rules.
Action
on these
rules
is
required by September 23,
1989.
P.A. 85-861 changed the directive of Section 22.4(e) from adoption of
regul~tionswhich “are
no less stringent”
to “identical
in
substance”.
The
Board believes that the regulations adopted
in R86—1 and
28 meet either
standard.
However, the USEPA modification to 40 CFR 280 requires that the
existing regulations
be
repealed
and replaced with new rules
anyway.
Section
22.4(e) now requires
the Board
to
adopt
regulations which are
identical
in
substance with USEPA rules.
Ill. Rev.
Stat.
1987,
ch.
127 1/2,
par.
154(b)(i) requires the Fire Marshal
to also adopt rules which are
identical
in
substance.
Par. 154(b)(ii) authorizes the Fire Marshal
to adopt
“additional
regulations relating to
an underground
storage tank program that
are not inconsistent with and
at least
as stringent
as” USEPA regulations.
The Fire Marshal
has to
notify the Board within
60 days after adopting
any
rules.
Section 22.4(e) allows the Board
to adopt
any such additional
regulations
as
“identical
in
substance” rules within
180 days after
notification.
Ill. Rev.
Stat.
1987,
ch.
127
1/2,
par. 154(b)(ii) prohibits
additional
Fire Marshal
regulations
relating to
“corrective action”.
98—414
-3-
P.A. 85-861 gives authority to both the Agency and the Fire Marshal
to
implement the UST program.
There is
no explicit statement as
to the division
of authority between the agencies.
The Board
believes that
the division
is
implied
by the limitation
on “corrective action”
requirements
in
ill.
Rev.
Stat.
1987, ch.
127
1/2,
par.
154(b)(ii).
Additional
requirements relating to
corrective action must be adopted pursuant normal
Board rulemaking under
Section
27 of the Act.
These would be implemented by the Agency.
Therefore,
the portions
of the program which are
subject
to this limitation,
those
dealing with “corrective action”, are to
be
implemented by
the Agency.
P.A. 84—172
and 85-161
deal with “petroleum”, “hazardous substance”
and
“hazardous waste”
underground
storage tanks.
On
first
reading Section
4(v) of
the Act appears
to limit the Agency’s authority to petroleum tanks.
However,
the existing language of Section 4(q)
of the Act
gives the Agency authority to
act
on releases
of hazardous substances, including those
in UST’s.
Pursuant
to Section 22.4(a)
of the Act, Board
has
adopted,
in
35 Ill. Adm. Code 724 and
725,
regulations governing hazardous waste tanks.
(R86-46, July 16 and August
14,
1987,
11
Ill.
Reg.
13435)
The USEPA rules
refer
to the “implementing agency”.
In the
rules the
Board has inserted “Fire Marshal”
or “Agency” according to which agency
is
responsible
for the portion
of the program in question.
The Board
specifically
requested cornent
as
to whether this accurately reflected the
division
of authority contemplated
in P.A. 85—861,
and received
none.
As
is. discussed
below, the term “corrective action” has
a
special,
limited
meaning
in
the USEPA rules.
See 40 CFR 280.66 and
35 Ill. Adm. Code
731.166.
Tank
leaks
are addressed by a series
of measures, including the
following:
Testing on
installation
Leak detection program
Confirmation
of suspected leak
Initial
response to confirmed leak
Free product
removal
Corrective action plan
Groundwater cleanup
Permanent closure
There
is
a question
as
to whether the General Assembly intended
“corrective action”
in the limited sense used
in
the rules,
or whether
it
intended the term to
be read
in
a more
general
sense
to mean any actions taken
to correct
a
leak.
In that the USEPA rules were not available
to the General
Assembly at the time it
adopted P.A. 85—861,
the Board
believes that the use
of the
same term was accidental.
The Board therefore reads
the term
“corrective action”
in
the broader sense.
As
is discussed below, the Agency
will
implement the rules
beginning with confirmation
of
a
suspected
leak.
The
Fire Marshal
will
implement the
rules concerning
installation of the tank and
routine
leak detection up
to the time
a
leak is confirmed.
The Fire Marshal
will
implement the rules
concerning the
routine closure
of tanks which are not
suspected of
leaking.
The Board specifically
requested coment
as
to whether
this was consistent with the legislation, and
received none.
The directive to both the Fire Marshal
and the Board
is
to adopt
98—415
-4-
regulations which are
“identical
in substance” with USEPA rules.
This term
has
been defined
in Section 7.2 of the Act, adopted
in S.B. 1834
(P.A.
85—
1048),
in
a manner consistent with the Board’s longstanding interpretation of
the term.
(See R85-23, June 20, 1986,
70
PCB 311, 320;
R86-44, December
3,
1987,
pages
14 and 19.)
The directive
to adopt “identical
in substance”
rules
means
to
adopt the
federal
text verbatim, except under
certain circumstances
which are specified
in the definition.
These include the need to modify
language
to reflect
the requirements of the Administrative Code.
USEPA might
be able to approve a state UST program which had
little
language
in common with the federal
rules,
so
long as the program was
“substantially equivalent.”
However, the Illinois mandate
to adopt
“identical
in substance”
rules
requires Illinois to
remain closer to
the verbatim federal
text than USEPA itself requires.
“ALTERNATIVE ACTION” PROVISIONS
The federal
rules
include numerous provisions which
specifically allow
alternative actions
by the implementing agency.
For example,
see 40 CFR
280.20(a)(2)
and 35
Iii. Adm. Code 731.12O(a)(2).
As
the Board reads the
USEPA
rules, these are the
areas
in which state deviation
is
invited.
(53
Fed. Reg. 37186)
The simplest way to
read P.A.
85-861
in conjunction with the
federal
rules
is to interpret the points
at which State alternatives
are
allowed
as being the
points which are subject to adoption of “additional
requirements” by the Fire Marshal,
or additional corrective action
requirements
by the
Board pursuant to Section
27
of
the Act.
For the reasons
discussed below, the Board has deleted most of these
“alternative action”
provisions
from the
rules.
If the Fire Marshal
adopts
additional
requirements
on these points, the Board will consider adding
an
identical
in
substance
provision pursuant to Section 22.4(e).
During
the
public
coment
period,
the
Fire
Marshal
adopted
final
UST
rules.
(41
Ill.
Adm.
Code
170;
13 Ill.
Reg.
5669,
effective
April
21,
1989)
The
Board
has
not
undertaken
a
review
of
the
Fire
Marshal’s
rules
prior
to
adoption
of
this
Opinion
and
Order.
The
Board
will
await
formal
notification
from
the
Fire
Marshal
pursuant
to
Section
22.4(e),
and
will
open
a
separate Docket
to address
any additional
requirements.
It
is possible that
the
rules adopted
by the Board are
in
conflict with the Fire Marshal’s
rules
on some points.
However, Section 22.4(e) appears
to mandate
a
lag between
action
by the Fire Marshal
and the Board.
Since these
involve
“additional
requirements”,
the
effect
of the conflict
is that
any additional
requirements
are
not
yet
enforceable
as
Board
rules.
These
alternative
action
provisions
could
become
serious
loopholes
in
the
UST program unless they
are carefully addressed in the
regulations.
Suppose
the Fire Marshal adopted
an alternative action provision which simply repeated
the USEPA directive.
For• example, consider
a
rule which says “design
tanks
according to
the abc standard
unless
the implementing agency provides
otherwise.”
Years
later the tank leaks,
and the cause
of the leak
is
traced
to the use
of
an
inadequate
standard, xyz.
The Agency would then be the
implementing agency,
and an enforcement
action would
be before the Board.
With the
rule
as written,
the operator could claim that he had oral permission
from the Fire Marshal
to use the xyz standard.
98—4 16
-5—
The main defense against this type of
loophole
is
for the Board
to insist
that,
at the time the rules are adopted,
the
rules
be specific
as
to whether a
case-by-case deviation from the rule will
be allowed.
If
so,
at
a minimum,
the Board must insist that the permission from the Fire Marshal
be
in writing,
and based
on
a standard articulated
in the rule.
If the alternative actions
provisions adopted
by the Fire Marshal
fail
in
any of these
respects, the
Board will
not adopt the equivalent
as
a Board
rule.
The effect
of this will
be
to
render
the
alternative
moot
with
respect
to
Agency
enforcement.
Most
of
the
“alternative
action”
provisions
appear
to
invo1~’efeatures
which
are
not
necessary
for
the
program.
For
example,
an
alternative action
provision
might
require
that
tanks
to
be
designed
according
to
standard
abc
“or some other standard approved by the implementing agency.”
The program
will work just fine with only the abc standard pending adoption of the xyz
standard.
These are the provisions which the Board
has
deleted pending action
by the Fire Marshal.
On the other
hand,
in
a few cases the provision appears
to
be essential
to the
program,
in the sense
that some language has
to
be
adopted now to
have
a
set of rules which would meet the mandate of Section
22.4(e).
Section 7.2 of the Act,
as
adopted
in 5.8.
1834,
allows the Board,
in
an “identical
in substance”
proceeding,
to craft
language meeting the
federal prescription.
Some of the “alternative action” provisions
involve corrective action,
and are to
be implemented
by the Agency.
Where
these invite alternative
action
by
rulemaking, Board
rulemaking pursuant to Section
27
of the Act would
be
required to provide
an alternative.
In these situations the “alternative
action” provision
has
been deleted.
The Board would
be receptive to
a
proposal
to add
the alternatives
pursuant to Section
27.
In those cases
in
which the alternative action provision
is essential
to the program,
the Board
has added
language.
Not all
of the “alternative action” provisions necessarily invite
rulemaking.
For example, 40 CFR 280.20(a)(5)
(35 Ill.
Adm. Code
731.12O(a)(5)) allows the implementing agency to approve tank construction and
corrosion protection which
it determines are no less protective of human
health and the environment
than the specified methods.
This could
be
implemented through adoption of
regulations
specifying additional
approved
designs,
or
it could
be implemented through approval
of individual
designs
submitted by operators.
These provisions have generally been deleted.
The
Fire Marshal ‘s office could either adopt
a
rule specifying
an alternative, or
it
could adopt
rules
specifying procedures and standards for case-by-case
approval, which the Board
could
consider adopting.
The “alternative action” provisions generally
fail
to specify procedures
for granting individual
approval
for alternatives.
USEPA specifically avoids
specifying
procedures,
in order
to allow states
to
adapt
local
procedures.
(53 Fed. Reg. 37186)
P.Ab 85-861 may
require
an ongoing
permit program,
administered
by the Fire ~tarshal,
of the type specified
in Sections 12
or
21
of the Act
for effluent discharges
or waste disposal.
The Board specifically
requested comment
as
to
how this type of approval
is
best handled,
and as to
the best terminology for describing the process, but
received
no response.
Other “alternative action” provisions
appear to actually be cross
references.
For example, 40 CFR 280.20(a)(5), discussed above, could
be
read
98—417
—6-
to
be back—referencing the “alternative action” provision
in
40 CFR
280.2O(a)(2)(iv).
Where the Board believes this
is
the case,
a more specific
reference
has been inserted.
(This
is probably
not the
case
in
the example,
since
a circular reference would
be
created.)
Section
731.110
Section 731.110(c) includes deferrals for tanks
regulated under the
Atomic Energy Act or
by
the NRC pursuant to
10 CFR
50, Appendix
A.
As
is
discussed below, the first
reference
is
really
to
an action
by
a federal
agency, and
is
not treated
as
an
incorporation by
reference.
The NRC
is also
the regulatory agency for the cited
section of the Atomic Energy Act.
The reference
to the NRC regulations could
be
interpreted the same
as the
statute.
However,
the Board
has
handled
all
references
to
federal
regulations
as incorporations
by
reference,
since they
are clearly mentioned in the APA.
Most of the UST
rules apply
to
the “owner and operator”
or
to the “owner
or operator”.
Generally the operator
is expected to comply with the rule.
If
he doesn’t, the owner
is
also liable.
In the remainder of this Opinion,
the
Board has
used the shortened term “operator”
to
refer to the “owner and
operator”
or
“owner or
operator”,
as specified
in the rule,
except
in
discussions which involve
one or the other.
(PC
4)
The USEPA rules
use the terms
“ground water”, “ground-water” and
“groundwater”.
The Board believes that these are
all
the same,
and
has used
“groundwater”.
The Code Unit insists that
a
set of rules
be consistent
in
this usage.
(PC
4)
“Ground water”
is actually misleading, since
it
is
using
“ground”
in the
less common
sense
of “ground
hog”,
as opposed to
the more
familiar “ground beef”.
Hyphenation
is
a
transitional
phase
in the formation
of
a new word.
“Groundwater”
has become a single word which has
a meaning
beyond that implied
by the dictionary definitions of
“ground”
and “water”.
Section 731.111
The Board has generally edited
the USEPA text to achieve consistency with
respect
to
the usage of “shall”,
“must”,
“will” and
“may”.
(PC
4)
“Shall”
is
used when
the subject
of the sentence
is required
to do something.
“Must”
is
used when something must
be done,
but not by
the subject
of the sentence.
“Will”
is
used when the
Board obligates itself
to
do something.
“May”
is
reserved for optional
provisions.
A few of
the USEPA provisions are
grammatically wrong,
or say something which
is
probably not
intended.
A few
require
a
change
in wording because
of the shift
in stance when
the
rules are
edited from IJSEPA to Board rules.
No substantive change
is
intended.
Section
731.112
Definitions
The
federal definitions from 40 CFR 280.12
have been adopted more
or
less
verbatim, except
as
noted.
The Board
has added
a
definition
of “Act”, meaning the Environmental
Protection Act.
This
is
to
be distinguished from the “Gasoline Act”,
defined
below.
The Board
has also defined “Agency” to mean the
Illinois Environmental
Protection Agency,
one of the implementing agencies
in Illinois.
“Board”
has
98—418
—7—
also
been
added
to
ease
any reference to Board procedures.
“CERCLA”
has
been
added
to
make
it
easier
to
reference
the
federal
Superfund Act.
The definition
of “corrosion expert”,
is drawn from the
federal
rules.
This
is defined as
a
person with accreditation by
the National Association of
Corrosion Engineers
(NACE),
or
a registered professional
engineer who has
certification or
licensing that includes education and experience
in corrosion
control
in tanks
and piping.
The Board
has
added
a definition of
“ESDA”, the acronym for the Illinois
Emergency Services and Disaster Agency.
As
is discussed below,
ESDA will
receive the initial notifications
of leaks.
The Board has added
a definition of “Fire Marshal”
as
a
short form of
“Office
of
the
State
Fire
Marshal”
which
is,
as
is
discussed
below,
one
of
the
implementing
agencies
in
Illinois.
(PC
2)
The
purpose
of
this
is
to
shorten
the
rules,
and
make
them
more
readable.
This
is
not
intended
to
make
the
decisions personal
decisions of the Fire Marshal.
The USEPA definition
of “free product”
refers
to
a
regulated substance
present
as
a “nonaqueous
phase
liquid”.
(PC
#4)
The Board has corrected this
apparent editorial
error
to
read “nonaqueous
liquid phase”.
It
is customary
to place the adjective
“liquid” before the
noun “phase”.
The
Board
has
added
a
definition
of
“Gasoline
Act”
as
an
abbreviated
name
for
“An
Act
to
regulate
the
storage,
transportation,
sale
and
use
of
gasoline
and volatile oils”,
as amended,
including P.A. 85-861.
This
is
Ill. Rev.
Stat.
1987,
ch.
127 1/2,
par.
151 et
seq.
Because this Act
is
not familiar to
most persons
using the Board rules,
the Ill. Rev.
Stat.
reference
is
always
given
in
the text of the rules.
The definition of “hazardous
substance UST system”
in 40 CFR 280.12
includes
a
reference to Section 101(14)
of
CERCLA.
As
is discussed below,
this would
be
an incorporation by
reference of
a
federal
statute, which
is
arguably prohibited
by the APA.
The Board has avoided this problem by
setting
forth the text of
the definition from CERCLA.
However,
this makes the
definition
of “hazardous
substance UST system”
too
complex.
The Board has
therefore created
a separate definition
of
“hazardous substance”,
and
shortened the definition
of “hazardous substance UST system”.
As
is discussed
below,
the Board
has
given
parallel
treatment
to
the
related
definition
of
“petroleum
UST
system”.
This
change
also
makes
the
rules
much
clearer.
No
substantive
change
is
intended.
The
Board
specifically
requested
comment
as
to whether
this modification has
been accomplished without substantive change,
but
received
no direct
response.
The definition
in Section
101(14) of CERCLA itself has several
references
to other federal
statutes.
Placing the definition verbatim into State rules
would
actually compound
the problem.
However,
it appears
that USEPA,
acting
pursuant to Section 102 of CERCLA,
has published
in 40 CFR 302.4
a
consolidated list of all
“hazardous substances”.
(See 50 Fed. Reg. 13450,
April
4,
1985.)
The Board
has therefore cited
only to this list, which
is
incorporated by
reference
in Section
731.113.
The Board will update the
98—419
-8-
reference as USEPA modifies
its list.
Section 3.14 of the Act defines “hazardous substance”
in
a manner which
appears
to
be identical
to the definition
in Section
101(14)
of CERCLA.
The
Board
could define “hazardous substance”
by reference to the definition
in the
Act.
However, the Board has rejected this course.
Assuming there were some
difference between
the definition
of
“hazardous substance”
in the Act and the
federal
regulations
and statutes, the Board believes that
the federal
statutes
and regulations would control.
As
has
been discussed
in previous
rulemakings,
the directive to adopt
“identical
in
substance” rules
requires that the Board
adopt the definition
sets upon which the federal
rules
rely.
(See R81-32,
February 4, 1982,
45 PCB
317,
333;
R86—44, December 3,
1987,
pages
8 and
27)
To do otherwise
could
change the scope
of the program,
and
carry
a
risk
of altering the way the rules
relate
to
each other, either of which would
violate the mandate
of Section 22.4(e) of the Act.
The implied definition
of
“hazardous substances”,
as used
in the UST
program, excludes CERCLA “hazardous substances” which are RCRA “hazardous
wastes”.
The Board
has
cited to 35 Ill. Adm. Code 721, which are the State
rules
which are equivalent
to 40 CFR 261, which
in turn
are the
rules which
USEPA adopted
to implement the RCRA definition of “hazardous waste”.
USEPA has suggested that
the definition
of “hazardous substance”
should
include unlisted hazardous substances pursuant to 40 CFR 302.4(b).
(PC
4)
However, this provisions
refer only to
solid wastes which exhibit
a hazardous
characteristic,
but which are
not listed.
This type of hazardous waste
is
excluded from the definition of
“hazardous substance”
for purposes of the UST
program.
These tanks are regulated under
35
Ill. Adm. Code 724.290
or
725.290
et
seq.
The Board
has made some minor editorial
corrections
to the definition of
“heating oil”.
Among these
is changing “and”
to
“or”
in the
list of types of
oil.
(PC 4).
The USEPA definition
appears
to limit
the definition to
an
oil
which fits into
all
of the categories.
Since the categories
are
intended to
be mutually exclusive, the definition reduces
to
the null
set, which
is
probably not what USEPA
intended.
40 CFR 280.12 includes
a definition
of “implementing agency”.
As
is
discussed above, the Board rules
do
not use this term,
but, rather,
replace
it
with “Fire Marshal”
or “Agency”, depending on which
implements
a given
provision.
The Board
has added Section 731.114, discussed below,
to state the
general
rule
for division of authority.
The Board has inserted
a cross
reference
in
place of the federal
definition,
in order
to avoid future
confusion
in
updating these
rules.
The definition of
“owner”
is drawn
from the USEPA definition.
It
refers
to
the person who owns the “UST system”.
This
is somewhat different from the
distinction drawn
in
other environmental
regulations
in which
the “owner”
is
equated with
the owner of
the property
on which the regulated facility
is
located.
For tanks
in
use
since November 8,
1984,
the
“owner”
is
the current
owner.
For
tanks
out
of
service prior
to
that
date,
the
“owner”
is
the
person
who owned
the UST system immediately before discontinuation
of use.
As was discussed above,
the Board
has defined “petroleum”
in
a manner
98—420
-9-
parallel with “hazardous
substance.”
The definition
is
drawn from the
definition of “petroleum UST system” and
“regulated substance”.
These
definitions
appear
to
repeat
an implied definition of “petroleum”.
The Board believes that the
“hanging paragraph” following the definition
of “regulated
substance”
in
40 CFR
280.12
is
intended to modify only the
portion of
the definition
involving “petroleum”.
The positioning of this
in
a
hanging paragraph
seems
to
be intended to make
it modify “hazardous
substance”,
but
the list of obvious petroleum products is
not consistent with
this interpretation.
Accordingly,
the list has been moved
to the new
definition
of
“petroleum”.
The list of petroleum products
is repeated
in the definitions
of
“petroleum UST system” and “regulated substance”
in
40 CFR
280.12.
(PC 4)
It
is
not necessary to
repeat the list in the Board rule,
since the list
is
contained
in the defined term “petroleum”.
As
organized by the Board, the applicability definitions are quite
simple.
The
basic definitions
are “hazardous
substance”
and “petroleum”.
If
one has either,
or
a mixture, he
has
a “regulated
substance”.
The
rules
differentiate “hazardous substance UST systems” from “petroleum UST
systems”.
A “hazardous
substance UST
system”
is
a tank system that holds
a
hazardous
substance,
or
a
mixture
of
hazardous
substances
and
petroleum,
which
is
not
regulated
as
a
“petroleum
UST
system”.
The
latter
includes
tank
systems
which
hold
petroleum
or
a
mixture
of
petroleum
and
“de
minimus”
quantities
of hazardous substances.
This term
is
not defined
in the
rules.
(53 Fed. Reg. 37108)
However, all
it does
is
shift
a tank from one portion
of
the
rules
to
another.
It
is
not an exclusion.
The Board
has modified
the definition
of
“person” along lines
discussed
in the Proposed Opinion
in R89—4.
The Board has replaced the term
“municipality” with “unit
of
local
government”,
a
constitutional term
in
Illinois which includes “municipalities”.
This avoids
a possible argument
that
the specific inclusion of
“municipalities” excludes other types
of
local
government, such
as sanitary districts.
The Board
has
also considered whether
“state” should
become “State”
in
this definition.
However, this change would have the effect
of excluding
other states which might have tanks
in Illinois.
The definition
of
“SARA”
in 40 CFR 280.12
is
not actually used
in the
rules,
and
has
been deleted.
This avoids possible incorporation by
reference
problems.
The definition
of “UST”
is
virtually the
same as adopted
in
old Section
731.101.
The references
to the federal Natural Gas
and Hazardous Liquid
Pipeline Safety Acts serve
to identify federal actions,
and are
hence
not
incorporations
by reference.
References have been given
to specific editions
of USCA
in
order
to make
it easier
to find the references
in the event
provisions are
renumbered.
Because these are
not incorporations by
reference,
citation of
a specific date does
not foreclose future amendments.
The definition
of
“UST”
includes
an
exception
for
tanks
used
for
storing
heating
oil
on the premises where consumed,
regardless
of
the size of the
98—42
1
-10-
tank.
The Fire Marshal
is
intending to regulate these tanks
if above
1100
gallons,
and to
regulate tanks
storing fuel
for emergency power
generators.
(PC 2)
As noted above,
the Board will consider modifying these provisions
following notification from the Fire Marshal.
Section 731.113
Incorporations
by Reference
Section 6.02 of the Administrative Procedure Act (APA)
sets limitations
on incorporation by
reference into regulations.
Section
22.4(e)
of the Act
exempts
this identical
in substance rulemaking from the requirements
of the
APA, which
includes prior approval
from JCAR.
However,
the Board has complied
with the substance of the APA incorporation by reference requirements.
(See
R86—44, December 3,
1987,
p.
13.)
The APA and derived
rules allow agencies
to incorporate a standard by
reference without
setting forth the complete text
if:
1.
The standard
is from
a nationally recognized organization or
association.
2.
The rule contains the complete address
and telephone number
of the
organization for purposes of ordering the standard.
3.
The organization makes copies
readily available to the public.
4.
The rule includes
the date of the standard.
5.
The rule states that it does not include later editions or
amendments.
6.
The agency maintains
a copy of the standard
in
its
files
for public
inspection
and copying.
The UST
rules
contain a large
number
of incorporations by
reference.
The
Board
has consolidated these into Section
731.113,
in
a manner
similar
to that
employed
in Section 720.111.
The use of
a single Section has
several
advantages.
It allows the Board to give the complete APA—required citation to
the document only once in the Part.
It provides a table
of contents to
incorporations which the affected public
can use
to assemble the needed
documents.
It will
allow the Board
to update the incorporations by
reference
without having to propose amendments
to the many Sections
in which they are
used.
By minimizing verbiage,
it will minimize the chances
of typographical
errors.
Section 731.113(a) incorporates standards and guidelines of organizations
and associations.
The Board has assigned a short name to
each organization,
such as ANSI.
For the fawiiliar organizations, this
is the acronym by which
they
are widely known.
In the text of the rules
in which the standards are
used, they will
be
referenced by the short
name and number
of the standard.
For example, ‘AMSE/ANSI 831.3”.
Section 731.113 includes
the date or edition
of each standard.
In many
cases this information
is
included
in the numbers associated with
the
standard.
For example, “ASTM D4021—86” means
the version
of ASTM D4O21 which
98—422
—11—
was approved
in
1986.
In this situation the date of the standard
is
really
present twice
in Section
731.113.
When standards are used
in subsequent
Sections,
no date
is
specified.
This is
to allow
all
references
to
a
standard
to
be
updated
by
a simple amendment
to Section 731.113.
For this
reason,
edition numbers have been stripped from the standards when they are used.
For
example, “ASTM
D4021-86’t
is
referenced
as “ASTM 04021”
in the Sections
in
which
it
is
used.
After ASTM updates this standard,
the Board will
update
Section 731.113,
and the references
in the rules will continue to
be valid
without the need for modification.
The NACE standards include the year of original
adoption in their
permanent
number.
For example, MACE RPO169-83 was originally adopted
in 1969,
and
last revised
in
1983.
The Board will use “NACE
RP0169”
in the
text of the
rules, intending to refer
to the version currently referenced
in Section
731.113.
USEPA intends
to reference future amendments
to these standards.
(53
Fed. Reg. 37090,
37185)
This cannot
be done under the APA.
The Board has
therefore referenced the current editions of the standards,
and will
update
these
automatically
in the future
as
it
learns
of
new editions.
The APR limits incorporations
by reference to
standards of
a
“nationally
recognized
organization
or
association”.
Many
of
these,
such
as
ASTM,
obviously fit
this
category.
Others
required
considerable
effort
to
locate.
However, since their standards are incorporated
in
a
federal
rule, they are
“nationally
recognized.’1
The
second largest group
of
standards are from UL Canada.
This raises
a
slightly different question of national
recognition.
The APR does not provide
a definition
of
“nationally
recognized.”
It is possible that
the APA intends
to allow the
use of national
standards of
any nation,
perhaps based
on
recognition
by the International Organization for Standardization
(ISO).
(See
53 Fed. Reg.
37185 and 19 U.S.C.A. §2532 and 2533)
Also,
foreign standards
organizations may maintain
a sufficient presence
in the U.S. to
become
“nationally recognized”
here.
However,
if a federal
agency
such as USEPA
relies
on their standards,
they become “nationally
recognized” without the
need for further
inquiry.
The USEPA rules
describe these
standards organizations
as
“nationally
recognized”.
USEPA does
not explain what
it means by “nationally
recognized.”
(Again see
53 Fed. Reg. 37185 and 19 U.S.C.A. §2532 and 2533)
It
is conceivable that the
federal APR uses the term “nationally
recognized”,
and that the
Illinois APA has derived
its language from the federal APA.
If
this were true, USEPA’s interpretation of the federal APR would have some
value
in the Board’s interpretation of the Illinois APA.
However, USEPA has
not justified
its use of the term by
reference to the
federal APA.
Furthermore,
the federal APR is opposite the Illinois APA on
closely
related
issues.
The Board therefore does not believe that USEPA’s description
controls the
Illinois APA.
(PC 4)
The Board
has attempted to
obtain standards,
but received
no
response
from the National Leak Prevention Association (NLPA).
Clearly,
if these
standards are
not available to
the Board,
they are
not “readily available
to
the public”.
The Board does
not interpret the “identical
in
substance
98—423
—12-
mandate”
as requiring
it
to
reference unavailable
standards in this
situation.
As
the USEPA and
Board
rules
are written,
operators will
be able
to
rely
on
this standards
if they demonstrate to
the Fire Marshal
or Agency
on
a case-by—case
basis that the organization is “nationally
recognized”, even
though the standards will
not be listed
in the rules.
The USEPA incorporations by reference are all
incomplete from the APA
perspective.
Furthermore,
it
is
fair to
say that they
are almost
all
incorrect in some respect.
However, most of the errors
are minor errors,
such
as words
omitted from the title,
so that there
is
little doubt
as
to the
correct reference.
The Board
has obtained
all
of the documents
listed.
The
Board specifically requested comment
as
to whether
its list correctly reflects
USEPA’s intentions, but received no
response.
Specific errors are discussed
in the following paragraphs.
A single
reference
has been given
to the USEPA
rules, although some of the errors
are repeated.
In the following paragraphs many of
the references
to the CFR do not
appear
to
be CFR references.
This
is
because USEPA has departed from the
usual
CFR format, actually using
Ill.
Adm. Code format
in many places.
The title
of the reference to ACT-100
in
40 CFR 28O.20(a)(3) should
include the word “/Composite” following “FRP Clad”.
The Board
encountered difficulties in obtaining copies
of the ANSI
standards.
The Board eventually received updated
copies
of the standards from
the sponsoring organization, ASME.
The Board
has
revised the references
to
reflect the current versions,
and has moved the
references
to
a new heading
“ASME”.
The Board has left
a cross
reference under the ANSI heading, for the
benefit
of ANSI members.
In the text of the
rules,
the
name of these
standards has been changed from “ANSI”
to
“ASME/ANSI”.
API publishes “Recommended Practices”
and “Publications”.
Almost without
exception the LJSEPA references
to API
“Recommended Practice”
should
be changed
to “Publication”,
and vice versa.
(See 40 CFR 280.20(b)(2)(iv)(B) and
(C)).
The API catalogue
lists
all
documents by number,
regardless
of whether they
are
a
“Recommended Practice”
or
“Publication”.
For the
items listed,
there
is
only one API document bearing that number,
so there
is little doubt
as
to the
correct reference.
In API
1631,
in 40 CFR 280.21(b)(3)(ii)(A),
the words
“Existing Steel”
should not
be
in the
title.
API
has
a number
of additional
documents which appear to
be relevant
to
UST’s, but which are not referenced
in
the text of
the USEPA rules.
These
include API
1628,
“Underground Spill Cleanup Manual”, API
1635, “Management of
Underground
Storage
Systems
...“,
and
API
2015,
“Cleaning
Petroleum
Storage
Tanks.
Under the language of the federal
rule,
it appears that these could be
used as
“standards
of
a nationally recognized organization” where
relevant.
The Board specifically requested comment
as
to whether USEPA intended that
these not
be used,
or inadvertently omitted them,
but
received no
response.
Note that API
1628
is mentioned
in
the preamble to the
federal
rule
(53 Fed.
Reg. 37091),
but
is not
in the text of any rule.
The preamble also contains
many other references which are not reflected
in
the rules.
The MACE references have been changed
to the format preferred
by the
organization, which
is described above.
For example,
“Standard RP-02-85”
has
98—424
—13-
been changed
to “Standard Recommended Practice RP0285-85”.
(See 40 CFR
280.11(b)).
The PEI
reference has also been changed
to the
format preferred by
PEI:
“PEI/RP100—87”
Two UL
standards referenced by USEPA have
not yet been adopted
by UL.
40
CFR 28O.2O(a)(2)(iv)(B) references
UL
1746, which was proposed
in November,
1987,
but has not
been adopted.
40 CFR 280.2O(b)(1)(A)
references UL Subject
971, which
is under consideration,
but has
not yet been proposed
These
references have been omitted from the
rules.
In the
case of UL
Subject 971,
UL has indicated that there
is
no document yet in existence which could
be
placed
in the file,
and that
it
objects
to the Board
referencing the number.
In the case of UL
1746,
the APA authorizes
only the incorporation by reference
of “standards
or guidelines”, not proposed standards.
The Board
is
on UL’s
notice list
to
receive these standards and will
add them to the
list when they
are
adopted.
40 CFR 28O.2O(a)(2)(iv)(C) references
UL Canada
“CAN4-GO3.1-M85”.
This
should
read “CAH4-S603.1—85”.
Also,
“Steel” should
be inserted before
“Underground”
in the title.
40 CFR 28O.2O(b)(1)(D)
references
UL Canada CAM4-
S633-M81.
The current
reference
is
to the
1984 edition
(“-M84”),
which the
Board has used.
40 CFR 28O.20(b)(1)(C) references
UL
Canada “Guide ULC—
107”.
The
intended reference appears to
be
“Subject C1O7C-M84”,
which has
a
title close
to that
given.
UL Canada
“Subject C1O7” exists, but
is
unrelated
to the subject matter of the
reference.
Section 731.113(b) incorporates
federal
regulations
by
reference.
The
Board
has
updated the
references
to
reflect the 1988 edition of Title 35,
which
is
now available.
10 CFR 50, Appendix A
is
an NRC regulation which
is
used to define
an exemption for certain radioactive waste tanks.
40 CFR 280.3
is from the
now-repealed UST rules.
It
required
notification
of the existence of UST tanks.
As
is discussed below, the Board
has referenced the old
rule.
The repealed date
is specified to make it clear
that
the incorporation by
reference
is
not to
be
updated.
40 CFR
302.4 et
seq.
are USEPA’s listing of CERCLA hazardous substances
and reportable quantities.
These are used in the definition of “hazardous
substances” discussed above.
The USEPA rules
also include
references
to
a large number
of federal
statutes.
These are troubling
in that they could
be construed as
incorporations
by reference.
The APA neither specifically authorizes nor
prohibits the incorporation by reference of
a
federal
statute.
Many of
the federal
statute
references are mere surplusage which
have no
real
function
in the rule.
These have been deleted.
Other
references are to
federal
statutes or rules which have been implemented
at the State
level
in
other identical
in substance rulemakings.
For example,
as discussed above,
the RCRA definition
of “hazardous waste” exists
in
35 Ill.
Adrn.
Code 721.
In
these situations the equivalent Illinois rule
is
cited.
Other references
are really
references
to
an action
by
a federal
agency,
98—425
—14-
with the statutory reference serving only to
identify the
nature of the
action.
For example,
40 CFR 280.10 exempts UST systems containing materials
that
are “regulated under the Atomic
Energy Act...”
These do not appear to
serve the function
of
an
incorporation by reference,
and hence have not been
placed
in
the incorporations Section.
Some of the federal
statute references do appear
to
serve the same
function
as
an
incorporation
by
reference.
For
example,
the
definition
of
“hazardous substance UST system”
in
40 CFR 280.12, discussed above, defers
to
Section
101(14)
of CERCLA.
It would
be appropriate
to treat this as
an
incorporation by
reference, since the
rule
is deferring to another document
for
the
substance
of
a
definition.
However,
as
is
discussed
above,
the
Board
has instead
set forth the text
of the CERCLA definition,
and to
replaced the
statutory references within
that definition with incorporations by
reference
of the federal
regulations which
implement the referenced
statutes.
Section 731.114
The
Board
has
added
a
Section
explaining
the
rationale
for
substituting
“Fire
Marshal”
or
“Agency”
for
“implementing
agency”
in
the
USEPA
rules,
which
is discussed above.
Generally,
the Agency
is
the implementing agency for
corrective action
beyond immediate response.
The Fire Marshal
is
the
implementing
agency
for
everything
else.
This
is
discussed
further
in
the
specific Sections
below.
The Board has edited this Section
to use the defined
terms
“Agency”
and
“Fire
Marshal”.
(PC
2)
Section 731.120
This and
the following Sections are numbered from the USEPA rule
according to
a
simple correspondence rule:
USEPA
Section
number
280.20
Insert
zeros
to
right
of decimal
point
so
there are 3 digits
after decimal
280.020
Add
constant
451.100
Section
number
in
35
Ill.
Adm. Code
731.120
In
the following discussion the Board will avoid unnecessary repetition
of the
CFR
and
Ill. Adm. Code numbers
for Sections.
In some cases
a reference
to the
Board Section number should
be
taken
as
a
reference to the underlying CFR
number,
and vice versa.
Section 731.120 sets the performance standard
for new UST systems.
This
Section involves several
“alternative action” provisions, which are discussed
above
in general.
40 CFR280.20(a)(2)(iv) and
(b)(2)(iv) allow for
alternative guidelines
by
the implementing agency.
The Board
has deleted
this
language,
but
could consider adopting any alternatives which the Fire Marshal
adopts.
At
several
points
the USEPA rules
specify that
a provision applies
to
“all” owners
or operators,
or tanks.
This
has been deleted
as
unnecessary.
(PC 4)
Unless specifically limited,
all
provisions apply to every person
or
98—426
-15—
tank meeting the definitions of these terms.
Specifying “all”
at some points
but
not others implies that the other provisions
include unstated
exclusions.
40 CFR 280.20(a)(5),
(b)(4),
(c)(2)(i)
and
(e)(6) allow operators to
comply with another method which
is determined
by the implementing agency “to
be
no
less protective of human
health
and the environment”.
The Fire Marshal
could address
these either
by rules specifying other methods,
or
by rules
establishing procedures
for case—by-case determinations.
The Board has
deleted this language, but could
consider adopting
any alternatives which the
Fire Marshal
adopts.
In Section 731.120(b)(2)(D) the reference to NACE RP0169 appears
to
be
correct
by
reference to 40 CFR
280.20.
(PC 4)
In Section
731.120(e), the Fire Marshal will
adopt certification
or
licensing requirements
for
installers and testers.
These will
need to
be
referenced
in
this Section.
(PC 2)
Section 731.121
This Section sets technical
standards for upgrading of existing UST
systems.
40 CFR 280.21(b)(2)(iv) allows
operators to comply with another method
which
is
determined
by the implementing agency “to be
no less protective of
human health
and the environment”.
The Fire Marshal
could address these
either
by
rules
specifying other methods, or
by
rules
establishing procedures
for case—by-case determinations.
The Board has deleted this language,
but
could consider adopting any alternatives which the Fire Marshal
adopts.
Section 731.122
This Section requires notification
to the Fire Marshal
of
new tanks.
It
is
similar
to
repealed Section
731.103.
Section 9002 of RCRA and repealed 40 CFR 280.3 required notification
of
existing tanks
by May 8, 1986.
The Board adopted the equivalent
in R86—28.
However, Section 731.901 delayed compliance until
USEPA authorized Illinois’
UST program.
At
the time the Board adopted that Section,
it anticipated that
USEPA would quickly authorize the Illinois program.
However, this has
not yet
happened, and does not appear
likely
in the
near future.
P.A.
85—861,
Ill. Rev.
Stat.
1987, ch.
127
1/2, par. 156(b)(1),
required
notification by December 31,
1987,
for tanks which
held regulated substances
after January
1,
1974.
The legislation
on USTs
in P.R. 85—861 can
be
read as mandating that the
Board adopt
a State UST program which would
function
as
a State program
enforceable under State
law pending approval
by USEPA.
The Board
has
therefore repealed the delayed compliance
date in Section 731.901, discussed
below.
The
federal
rule contains references
to Sections 9002 of RCRA and Section
98—427
-16-
103(c)
of CERCLA.
For the
reasons discussed above
in connection with
incorporations
by
reference, the Board
has replaced these with references
to
the
federal
regulations which
implement the statutes.
The repealed RCRA UST
notification requirement was
in 40 CFR 280.3
(1987).
The CERCLA notification
requirement
is
in 40 CFR
302.6.
These are incorporated by
reference
in
Section 731.113.
As adopted by the Board, the note advises users
that notification was
required under 40 CFR 280.3
,
unless CERCLA notification was given under 40
CFR 302.63
and under Ill. Rev. Stat.
1987,
ch.
127
1/2, par. 156(b)(1).
Section 731.130
This Section requires that the operator ensure that releases due to
spilling
or overfilling
do not
occur.
Section 731.131
This Section requires maintenance and inspection
of corrosion control
equipment
in
steel
tanks.
40 CFR 28O.31(b)(1)
requires testing of cathodic protection systems every
three years, or according to another time frame established
by
the
implementing agency.
The Board
has
not adopted the alternative,
but could
consider
adopting
any
alternatives
which
the
Fire
Marshal
adopts.
Section
731.132
This Section
requires that materials used
in construction or
liners
be
compatible with the substance stored
in the tank.
Section 731.133
This Section governs
repairs
of UST systems.
40 CFR 28O.33(d)(3) allows
operators to
use another test method which
is
determined
by the implementing agency
“to be
no
less protective of human
health and the environment”.
The Fire Marshal
could address
these either by
rules specifying other methods,
or
by
rules establishing procedures for case-
by—case determinations.
The Board
has deleted this language, but could
consider adopting
any alternatives which
the Fire Marshal
adopts.
Section
731.134
This Section governs reporting and recordkeeping.
The introduction to
40 CFR
280.34
requires operators of UST systems
to
cooperate with inspections
by the implementing agency,
“as well
as
requests
for documents submission, testing and monitoring by the
...
operator pursuant
to section 9005
...“
of RCRA.
There
is
a question
as
to whether USEPA intends
this provision to preserve federal document request
rights following
delegation
to the
states,
or whether this
is merely
a careless
reference to
the federal
statutory basis for document
requests which
are provided for
in
the
rules,
and which will
be delegated to
the
states.
Section
9005 of RCRA
98—428
—17—
appears
to
contemplate that states will
take over information requesting
functions from USEPA.
The Board therefore followed the latter interpretation,
but specifically
requested comment,
and received none.
The Board therefore
finds the reference to Section 9005 as
unnecessary,
and has deleted
it.
Section 731.140
This
and the following Sections govern
leak detection
systems.
Section
731.140(b)
requires
the operator to notify ESDA when the
leak detection system
indicates that
a leak may have occurred.
40 CFR 280.40(c) contains
a table which specifies compliance dates
for
release detection.
For pressurized piping,
release detection
is required
by
December
22,
1990.
For tanks
and
suction piping,
release detection
is
required at
various dates through 1993,
depending on the
age of the system.
It would
be difficult to meet Administrative Code Unit margin
requirements
if the table were kept
in the
rule.
Rather than move the table
to
an Appendix, the Board
has replaced the table with
a
narrative statement of
the compliance dates.
It appears that this
is actually shorter and clearer
than the table.
Section 731.141
This Section contains the
release detection requirements for petroleum
tanks.
Section 731.142
This Section contains the release detection requirements
for hazardous
substance tanks.
These include release detection
in
secondary containment,
double walls and external
liners.
40 CFR 28O.42(b)(5)
allows other methods
of release detection if the
operator demontrates other methods which are
as effective
as the methods
specified in
40 CFR 280.43,
and obtains prior approval
from the implementing
agency.
This alternative appears
to
be
one which the Fire Marshal
could
address
by adopting
rules
specifying procedures allowing such approval.
The
Board has deleted this provision, but will
consider adoption of
any procedures
adopted
by the Fire Marshal.
Section 731.143
This Section specifies the methods
of
release detection for tanks.
Methods include inventory control, manual
tank guaging, tightness testing,
automatic guaging,
soil
vapor monitoring, groundwater monitoring
or
interstitial monitoring.
40 CFR 280.43(a)(5)
requires product dispensing
in accordance with state
or
local
standards,
or to within
6 cubic
inches per
five gallons
of product
withdrawn.
Presumably this means that the State
is
to
require compliance with
the more stringent,
or else the inventory control would
fail
to reliably
indicate the absence
of leaks.
Gasoline metering
is
regulated by the Illinois
Department of Agriculture.
(Ill. Rev. Stat.
1987,
ch.
147, par.
108 and
98—429
-18-
143).
The regulations appear to
be
at
8
Ill.
Adm. Code 600.120 and
600.650.
The regulations
fail
to specify
a metering standard.
Therefore the Board
has
deleted the reference to state
and local
standards from the
rule,
and will
rely only on the federal
standard.
The
Board
added
a
note
referencing
the
Department
of Agriculture
rules, but providing that each operator
relying
on
inventory control
has to
obtain independent certification of meter accuracy.
40 CFR 28O.43(g)(2)
requires
a secondary barrier which
is “sufficiently
thick
ang impermeable
(at least
io6
cm/sec)
..
.“
USEPA probably means
“at
most 10
cm/sec”.
The Board has corrected this apparent typographical error
in Section 731.143(g)(2).
Also, the Board
has replaced 10~with 0.000001 to
conform with codification
requirements which
limit the use
of superscripts.
(1
Ill. Adm. Code 100.340(i))
To avoid errors
as
to the number of zeros, the
Board
has added
a narrative “ten to the minus
six” following the number.
The
Board regrets the
loss
of clarity associated with this change.
40 CFR 280.43(h) allows alternative
leak detection methods
if the
operator demonstrates to the implementing agency that
the method can detect
a
leak of 0.2 gallons per
hour with
a probability of
95
and
a false alarm rate
of 5.
This alternative appears
to be one which the Fire Marshal
could
address either
by adopting rules specifying other testing methods
or by
adopting rules
specifying procedures allowing
approval
on
a case-by-case
basis.
This alternative action provision
is somewhat different than the
others.
It
includes
a precise numerical
standard for action
by the
implementing agency,
but
lacks
procedures for approval
of alternative
methods.
The Board
is concerned that the specific test methods enumerated
in
the rule may not be applicable
to every conceivable situation,
so that a
method of case-by-case approval
is
an essential
part of the
program.
The
Board has therefore adopted
a
rule with minimal
procedural
requirements,
specifically that the approval
be given
by
permit condition.
The Board could
consider adopting any other procedural
requirements adopted
by the Fire
Marshal.
The USEPA rule provides that the implementing agency “may”
approve
another method
if the standard
is met.
The Board has changed this
to
“shall”.
The Board believes that, under Illinois administrative law,
the
operator
is
entitled to the alternative
if
he demonstrates compliance with the
standard.
If there are
other conditions, they should
be
stated
in the
rule
the
Fire
Marshal
adopts.
(PC
4)
Section 731.144
This
Section
specifies
the
methods
of
leak
detection
in
piping.
Section
731.145
This
Section
requires
the
operator
to
maintain
records concerning release
detection
methods.
The
operator
must
maintain
equipment
manufacturer’s
claims
for
five
years,
and
the
results
of
monitoring
and
documentation
of
calibration,
maintenance
or
repair
of
release detection equipment
for one
year.
98—430
-19-
40
CFR
280.45
allows
for
alternative
reasonable
record
retention
times
to
be
specified
by
the
implementing
agency.
The
Board
has
deleted
this
language,
but
could
consider
adopting
any
alternatives
which
the
Fire
Marshal
adopts.
Section 731.150
40
CFR
280.50
requires
operators
to
report
suspected
releases
to
the
implementing
agency
within
24
hours
or
“another
reasonable
time
period
specified
by
the
implementing
agency”.
This
clearly
solicits
action
by
way
of
rulemaking,
since
it
would
be
impossible
to
request
an
individual
extension
of
the
reporting
period
without
in
effect
reporting
the
suspected release.
This
provision
is
evidently
intended
to
allow
states
to
adjust
the reporting time
to
accomodate
local
release
reporting
requirements.
In
Illinois
CERCLA—type
reporting
must
be
done
to
the
ESDA
within
24
hours.
There
is
therefore
no
reason
to
provide
for
an
alternative reporting period.
The Board
has
corrected
the omission of
“within
24 hours” from the
rule.
(PC
4)
40
CFR
280.50
requires
reporting
to
the
“implementing
agency”.
The
Board
has
to
required
reporting
to
ESDA
instead.
ESDA
will
relay
the
report
to
the
Fire
Marshal
and
Agency,
which
will
coordinate
their
response.
Reporting
to
ESDA
is
more
consistent
with
existing
Illinois requirements concerning
releases.
Section
731.151
40
CFR
280.51
requires
operators
to
conduct
a
release
investigation
when
required
by
the
implementing
agency.
The
implementing
agency
may
require
a
release investigation under this Section
if
it
discovers
off—site
impacts,
such as free product
in
basements,
sewers
or waterways.
Although the
remedial
action itself
would
be
within
the
Agency’s
jurisdiction,
the
investigation,
prior
to
confirmation
that
the
release
is
from
a
particular source,
is within
the
Fire
Marshal
‘s jurisdiction.
The
rule therefore provides that the Fire
Marshal
is the agency from which
an order to investigate must
come.
This Section
uses the word
“investigate” to describe the operator’s
actions following notification.
This
is
a
poor choice of words,
since
it
invites confusion with the Agency’s powers
to “investigate” under Section 4 of
the Act.
This Section
is
not
in any way intended to transfer those powers
to
the operator.
The Agency can conduct whatever
investigation it
sees fit,
within
its statutory authority,
in
parallel with
the operator’s invest-
igation.
However, the operator’s investigation appears
to
be
a condition
precedent to
a confirmation
of
a
leak under the following Sections.
Therefore,
if the Agency learns
of
off—site impacts
prior to the Fire Marshal,
it should coordinate with the
Fire Marshal
to get
orders sent to
all
suspected
sources.
The
rules
need
to
specify
the
procedure
by
which
the
Fire
Marshal
orders
an
investigation.
This
is
clearly
an
essential
part
of
the
program,
since
the
rules
would
not
require
corrective
action
if
there
were
no mechanism for
issuing
these
orders.
The
Board
has
therefore
adopted
the
rule
with
minimal
procedural
requirements, specifically
a written order from the Fire Marshal
or
an
oral
order
followed
by
a
written
confirmation.
The
Board
will
consider
replacing this language with any more specific procedures adopted
by the Fire
Marshal.
98—431
-20-
Section 731.152
40
CFR
280.52
requires
operators
to
immediately
investigate
suspected
releases
and
to
report
to
the
implementing
agency
within
seven
days
“or
another
reasonable
time
period”.
This
appears
to
invite
rulemaking
by
the
Fire
Marshal.
The
Board
has
deleted
this
language,
but
could
consider
adopting
any
alternative
which
the
Fire
Marshal
adopts.
Section
731.153
Section
731.153(a)(2)
includes
a
reference
to
reportable
quantities
under
CERCLA.
The
implementing
regulations
appear
to
be
at
40
CFR
302.4
and
302.5.
These
have
been
incorporated
by
reference
in
Section
731.113.
The
note
following Section 731.153(b) includes
a
cross
reference
to
CERCLA reporting requirements.
Although this
is
gratuitous, the Board
has
modified the text
so
as
to
retain
the references consistent with APR
requirements.
For the
reasons discussed above
in connection with
incorporations
by
reference,
the
Board
has
replaced
the
statutory reference
with
a
reference
to
the
implementing
regulations.
These
appear
to
be
40
CFR
302.6,
which
has
been
incorporated
by
reference
in
Section
731.113.
The
Board
has
added
the
phone
number
for
the
National
Response
Center,
so
as
to
identify
the
agency
to
receive
the
notice.
The
“local
authority”
to
receive
notice
is
governed
by
Section
750.410.
The
Board
has
also
added
the
phone
number
for
the
ESDA,
which will
also
receive
notices
under
this
Part.
The
Board
has
added
a
reference
to
the
extremely
hazardous
substance
reporting
requirements
in
40
CFR
355.40.
These
will
also
be
incorporated
by
reference
in
Section
731.113.
(PC
4)
Also,
the
Board
has corrected
the
telephone
number
for
the
National
Response
Center
to
agree
with
40
CFR
302.
40
CFR
280.53
includes
three
“alternative
action”
provisions.
Two
of
these
allow
the
implementing
agency
to
specify
an
alternative
to
the
25
gallon
reportable quantity limit
for petrolaum product
spills.
The other allows
the
implementing
agency
to
specify
a
time
other
than
24
hours
for
clean
up
of
a
spill.
The
Board
has
deleted
this
language,
but
could
consider
adopting
any
alternatives which the Fire Marshal
adopts.
Section
731.160
The
following
Sections
specify
what
the
operator does by
way
of
immediate
response
and
corrective
action.
Tanks
which
are
subject
to
“RCRA
corrective
action”
are
excluded
from
this
Subpart.
The
Board
has
added
a
reference
to
the
“response”
requirements
of
35
Ill.
Adm.
Code
724.?96
and
725.296.
(PC
4)
However,
the
Board
has
retained
the
references
to
the
true
RCRA
“corrective
action”
reguirements
in
35
Ill.
Adm.
Code
724.200
and
725.Subpart
B.
40
CFR
280.60
is
ambiguous
as
to
whether
it
means
“corrective
action”
in
the
UST
or
RCRA
sense.
The
Board
has
referenced both.
Section
731.161
98—432
—21-
40
CFR
280.61
requires
the
operator
to
take certain
initial
response
actions within
24
hours,
“or
another
reasonable
period
of
time”.
The
actions
include reporting the
release, preventing further release and identifying and
mitigating fire,
explosion and vapor hazards.
This appears
to
invite
rulemaking
by
the
state
implementing
agency
to
specify
a
time
consistent
with
local
law.
As
noted
above,
Illinois
generally
requires
reporting
of
releases
within
24
hours.
The
rule
therefore
specifies
a
24
hour
time
frame
for
initial
response.
Section
731.162
40
CFR
280.62(a)
requires operators to perform certain specified initial
abatement
measures,
“unless
directed
to
do
otherwise
by
the implementing
agency”.
40
CFR
280.62(b)
requires the operator to report
to the implementing
agency
on
initial
abatement
measures,
within
20
days
after
confirmation
“or
another reasonable period
of time.”
The
initial abatement measures include
removal
of
regulated substances from the
system;
visual
inspection;
mitigation
of
fire
and
safety
hazards;
remediation
of
hazards
posed
by
any
excavated
soils;
measurement
for
the
release
at
the
site
where
contamination
is
most
likely
to
be
present;
and,
investigation
to
determine
the
presence
of
free product and initiation
of free product
removal
as soon
as practicable.
These
provisions
form
the
bridge
between
immediate
response,
subject
to
the
Fire
Marshal’s jurisdiction,
and corrective action,
subject
to the
Agency’s jurisdiction.
This Section covers
a
20
day
time
period
spanning
confirmation
of
the
leak
through
submission
of
the
initial
report.
Some
of
the
actions
must
begin
immediately,
and
hence
might
be
subject
to
oversite
by
the
Fire
Marshal.
Others,
including
the
investigation
and
initial
report,
take
up
to
20
days,
and
merge
into
corrective
action
proper.
Clearly
the
report
needs
to
be
submitted
to
the
Agency,
since
it
forms
the
basis
of
the
corrective
action
steps
which
follow.
In
that
these
are
transitional
rules
between
the
Fire
Marshal’s
and
Agency’s jurisdiction, there
is
a question as
to which agency should
be able
modify the
initial
abatement measures
or the
time for submitting the
report.
In
the
rules
this
question
is
avoided
by
omitting
the
alternatives.
The
initial
abatement measures are basic,
common
sense directives
such as empty
the
tank
and
avoid
fire
or
explosion.
There
seems
to
be
no
need
either
to
modify
the
rules,
or
to
provide
a
mechanism
for
adjusting
the
requirements
on
a case—by-case basis.
Likewise, there
is
no need to
allow for extension of
the
20
day
period
for
the
initial
report.
If the operator
is unable
to
collect
some
of
the
required
data
within
20
days,
he
should
so
report.
The
missing
data
can
be
supplied
in
the subsequent
reports.
Section
731.163
This Section governs the
initial
site characterization, which
is
a
report
which
the
operator
is
supposed
to
send
to
the
Agency
within
45
days
after
the
date
of
a
release.
40
CFR
280.63(a)
provides
that
the
operator
is
to
prepare
the
report
unless
directed
otherwise by
the implementing agency.
40
CFR
280.63(b)
requires
the
operator to
submit the
report within 45 days
“or
another reasonable period
of
time determined
by
the implementing agency.”
The
latter
provision
could
be
addressed
through
rulemaking.
Either
could
allow
for case-by—case waivers
or extensions
by the implementing agency.
With
98—433
-2.2-
respect
to
the
45—day
period,
there
does
not
appear
to
be
any
reason
to
change
this
number
through
rulemaking.
As
for
case-by—case
waivers
or
extensions
of
the
period,
the
rule
does
not
include
any
standards
for
agency
action.
In
that
such
waivers
or
extensions
do
not
appear
to
be
essential
to
the
program,
the
Board
did
not
propose
any
standards
or
procedures
for
granting
such,
but
invited
comment.
The
Board
received
no
comment
on
this.
In
removing
the
extension
language
from
40
CFR
280.63(b),
the
Board
inadvertently
changed
the
45
days
so
as
to
start
from
the
release,
instead
of
confirmation
of
the
release.
(PC
4)
This has been corrected.
Section
731.164
This
Section
governs
free
product
removal,
and
requires
the
operator
to
prepare
and
submit
a
free
product
removal
report.
40
CFR
280.64
requires
the
operator
to
remove
free
product
“to
the
maximum
extent
practicable
as
determined
by
the
implementing
agency.”
However,
no
procedures
are specified
for
such
determination.
There
are
two
possible
interpretations
of
this
standard.
The
first
is
that
“the
maximum
extent
practicable”
is
a
subjective
standard within
the
unreviewable discretion of the agency.
This would
be
unacceptable as
a matter
of
Illinois
administrative
law.
The
second
is
that
it
is
an
objective
standard
upon
which
the
operator
can
present
an
expert
opinion
in
the
free
product
removal
report,
and
with
which
the
agency
is
free
to
disagree,
based
on
its
own
experts.
This
is
undoubtedly
what
the
USEPA
rule
is
intended
to
mean.
However,
it
makes
“as
determined
by
the
implementing
agency”
surplusage,
since
compliance
with
all
of
the
standards
is
determined
by
the
agency.
The
Board therefore deleted the surplusage,
but solicited comment.
The
Board
received
no
direct
comment
on
this.
(PC
4)
40
CFR
280.64(a)
requires
the
operator
to
conduct
free
product
removal
in
a
manner
that
“properly
treats,
discharges
or
disposes
of
recovery
byproducts
in compliance with applicable local,
state
and federal
regulations.”
The
Board
solicited
comment
as
to
what
these
regulations
are,
but
received
no
response.
40
CFR
280.64(d)
requires
the
operator to submit the
free product
removal
report
within
45
days
“unless
directed
otherwise.”
This
appears
to
contemplate
a
case—by—case
extension
of
the
time
period.
However,
there
is
no
standard
or
procedures
for
agency
action.
In
that
it
does
not
appear
to
be
an
essential
part
of
the
program
to
have
such
extensions,
the
Board
did
not
adopt
any
mechanism
for
granting
such
extensions.
Section 731.165
This Section requires the operator to conduct
an
investigation for soil
and
groundwater
cleanup
if:
wells
have
been
affected;
free
product
is
in
need
of
recovery;
contaminated
soil
may
be
in
contact
with
groundwater;
or,
if
the
implementing
agency
requests,
based
on
the
potential
effects
of
contaminated
soil
or
groundwater
on
nearby
surface
water
and
groundwater
resources.
98—4 3 4
-23-
40
CFR
280.65(b)
requires
the
report
“as
soon
as
practicable
or
in
accordance
with
a
schedule
established
by
the
implementing
agency”
This
appears
to
be
acceptable,
assuming
the
Agency
is
to
establish
a
schedule
leading
to
a
report
“as
soon
as
practicable.”
Section
731.166
This Section allows
the Agency to
require operators to submit
a
corrective action plan after
it
has reviewed
the reports
in
the previous
Sections.
The plan must provide for “adequate protection
of human
health and
the
environment.”
In
40
CFR
280.66,
the standard for approval
is
repeated.
The
Board
has
dropped
as
confusing
and
unnecessary
the
first
version
from
the
final
sentence of Section
731.166(a).
(PC 4).
Section 731.167
This Section
sets out
public participation requirements
for corrective
action
plans.
40
CFR
280.67
provides
that
the implementing agency
“may” hold
a
public
meeting,
but
includes
no
standard.
The
Board
has
changed
this
to
“shall”.
(PC 4)
The
Board
proposed
to
require
publication
of
notices
in
the
Illinois
Register,
partly
in
response
to
JCAR’s
indication
in
conjunction
with
debate
on
P.A.
85—1058
that
the
Board
ought
to
publish
everything
in
the
Register.
It
is
ironic
that
the
proposal
brought strong opposition from the Code Unit,
which
says
it
will
publish
only
what
it
is
required
by
statute
to
publish.
(PC
2).
Section
7.2(b)
of
the
Act,
as
adopted
in
P.A.
85-1048,
allows
the
Board
to
require this type of publication
in
the Register.
Section 731.170
This
and
the
following
Sections
concern
out-of—service
UST
systems
and
closure
of
systems.
These
rules
concern
the
routine
closure
of
tanks
which
are
not
suspected
of
leaking.
They are to be implemented
by
the
Fire Marshal.
Section 731.170 concerns temporary closure of tanks.
The operator
has to
continue corrosion protection and leak detection, unless the tank
is
empty.
After
12
months
the
operator must permanently close the tank,
unless
it
meets
the
standards
for
new
or
upgraded
tanks.
40
CFR
280.70(c)
allows
the
implementing
agency
to
extend
the
temporary
closure
period
for
substandard
tanks.
This
could
be
done
either
through
rulemaking,
or
through
a
case-by—case
extension.
However,
the
USEPA
rule
does
not
provide
a standard under which the extension should
be granted,
or
procedures.
There
appears
to
be
no
reason
to
adopt
a
time
other
than
12
months,
and
the
availability
of
extensions
appears
to
not
be
essential
to
the
program.
The Board
has therefore deleted
the language concerning extensions,
but
could consider any provisions the Fire Marshal
adopts.
Section
731.171
This
Section
requires
that
the
operator
notify
the
Fire
Marshal
30
days
before
beginning
closure
or
change
of
service
of
a
tank.
Change
in
use
to
storage
of
a
non—regulated
substance
is
a
change
in
service.
98—43
5
-24-
40
CFR
280.71(a)
allows
the
implementing
agency
to
determine another
“reasonable
time”
for
the
notification
requirement.
This
could
be
addressed
only
through
rulemaking,
since
an
operator
could
not
request
an
alternative
time without
in effect notifying the Fire Marshal
that
he was considering
closure
or
change
in
service.
There
seems
to
be
no
reason
to
depart
from
the
30
day
requirement,
but
the
Board
could
consider
any alternatives
the Fire
Marshal may adopt.
The
Fire
Marshal
is
proposing
to
require
removal
as
the
standard
method
of
tank
closure.
(PC
2)
Section
731.172
Before
closure
or
change
in
service
is
completed,
the
operator
must
conduct
a
site
assessment
to
measure
for
the
presence
of
a
release
where
contamination
is
most
likely
to
be
present.
If
contamination
is
discovered,
the
operator
must
begin
corrective
action.
Section
731.173
When directed
by
the
Fire
Marshal,
the
owner
or
operator
of
a
UST
system
permanently closed before December 22,
1988, must assess the excavation zone
and
close
the
UST
system
in
accordance
with
this
Subpart
if
releases
poses
a
current
or
potential
threat
to
human
health
or
the
environment.
40
CFR
280.73
refers
to
human
health
“and”
the environment.
The Board
has
changed
this
to
“or”.
This
is
probably
a
typographical
error
by
USEPA.
It
seems
unlikely
that
USEPA
intends
the
implementing
agency
to
find
both
conditions
before
ordering
an
assessment.
Section
731.174
This
Section
requires
that
records
be
maintained
for
three
years
after
closure
or
change
of
service.
Section 731.900
(Repealed)
This was
the incorporation by
reference section for
the UST rules adopted
in R86-1
and
28.
ASIM G57-78
is
a method of measuring soil
conductivity which
was used in
an
exemption for tanks
located
in non—corrosive soils.
USEPA has
now
dropped
this
exemption.
Section 731.901
(Repealed)
This was
the delayed compliance date for the
old UST
rules.
As was
discussed
above,
the
Board
has
adopt
a
set
of
rules
which will
be
immediately
effective
as
State
rules
pending
approval
by
USEPA.
This Opinion supports
the
Board’s
Order
of
this
same
date.
The
complete
text
of
the
rules
as
adopted
is contained in
a separate Order.
The Board will
withhold
filing
the
rules
until
May
26,
1989,
to
allow
time
for
motions
for
reconsideration
by
the
agencies
involved
in
the authorization process.
98—436
-25-
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Opinion
was
adopted
on
the —?7~dayof
____________
1989,
by
a
vote
of
7—’.’
/L~
Dorothy
M.
Gu9~,Clerk
Illinois
Pollution
Control
Board
98—437
