ILLINOIS POLLUTION CONTROL BOARD
December
15, 1988
IN THE MATTER OF:
)
)
UIC
UPDATE,
IJSEPA REGULATIONS
)
R88-17
(1-1-88
THROUGH
6-30-88)
)
AND CORRECTION
)
FINAL ORDER.
ADOPTED RULES
OPINION
AND
ORDER
OF THE BOARD
(by J.
Anderson):
The Board
is
amending the U1C regulations
pursuant to Section
13(c) of
the Environmental
Protection Act
(Act).
On September
8,
1988,
the Board dismissed
this Docket
after determining
that there were
no amendments
to the USEPA UIC rules during the period January
I through June
30,
1988.
However,
on September 21,
1988 USI
Division of
Quantum Chemical Corporation
(USI) and Cabot Corporation
(Cabot)
filed
in R88—
16
a motion
requesting amendment
of
35
Ill. Adm. Code 704.
The Board
construed this
as
a motion
to reconsider the September 8 Order
in this Docket,
and,
as
such,
granted
it.
The September
8 dismissal Order was
vacated,
and on
September 22,
1988, the Board proposed amendments
to Part
704.
The Public
coment
period
is
over,
and
the Board
has
adopted the amendments
as
is
discussed below.
Section
13 of the Act governs
adoption of regulations establishing the
UIC program
in
Illinois.
Section
13(c) provides for quick adoption of
regulations
which are ~identica1
in substance”
to
federal
regulations;
Sect4on
13(c) provides that Title
vir
of the Act and
Section
5 of the
Administrative Procedure Act
shall
not
apply.
The federal
UIC regulations are
found
at 40 CFR
144
and
146.
PUBLiC COMMENT
The September 22 proposal
appeared
on October
28,
1988,
at
12
Ill.
Reg.
17167.
The Board
received
the following public coment
in response
to the
proposal:
PC#l
JEPA
PC#2
Natural
Gas Pipeline Company of America
PC~3
Administrative Code Unit
TF~±
Board
appreciates the assistance
of Morton Dorothy
in drafting the Order
and
Opinion.
94—227
—2-
PC#4
Cabot Corporation and Quantum Chemical Corporation,
USI
Division
The public coments
supported adoption of the proposal
(PC #1,
2 and 4).
HISTORY OF
RCRA and UIC ADOPTION
The Illinois RCRA and UIC (Underground
Injection Control) regulations,
together with more stringent state regulations particularly applicable
to
hazardous waste,
include the following:
702
RCRA and UIC Permit Programs
703
RCRA Permit Program
704
UIC Permit Program
705
Procedures
for Permit
Issuance
709
Wastestream Authorizations
720
General
721
Identification
and Listing
722
Generator Standards
723
Transporter Standards
724
Final
TSD Standards
725
Interim Status TSD Standards
726
Specific Wastes
and Management Facilities
728
USEPA Land Disposal Restrictions
729
Landfills:
Prohibited !,lastes
730
UIC Operating Requirements
731
Underground Storage Tanks
Special
procedures
for RCRA cases
are
included
in
Parts 102,
103,
104 and
106.
Adoption of these regulations has proceeded
in several
stages.
The Phase
I RCRA regulations were adopted
and amended
as follows:
R8l-22
45 PCB 317, February 4, 1982,
6 Ill.
Reg. 4828,
April
23,
1982.
R82-l8
51
PCB 31, January
13,
1983,
7
Iii. Reg.
2518, March 4,
1983.
Illinois
received Phase
I interim authorization on May 17, 1982
(47 Fed.
Reg. 21043).
The UIC regulations were adopted
as
follows:
R81—32
47 PCB
93, May
13, 1982;
October
15, 1982,
6
Ill. Reg.
12479.
The tJIC regulations were amended
in R82-l8, which
is
referenced above.
The UIC regulations were also amended
in R83-39:
R83-39
55 PCB 319, December
15,
1983;
7
Ill.
Req.
17338, December 20,
1983.
Illinois received UIC authorization February
1,
1984.
The Board
has
updated
the
UIC regulations:
94—223
—3—
R85-23
70 PCB 311, June 20,
1986;
10
Iii.
Req. 13274, August
8, 1986.
R86-27
Dismissed at
77
PCB 234, April
16,
1987
(No USEPA amendments
through 12/31/86).
R87-29
January 21, 1988;
12
Ill.
Reg.
6673, April
8,
1988;
(1/1/87
through 6/30/87)
R88—2
June 16,
1988;
12
Ill.
Req. 13700, August
26,
1988.
(7/1/87
through
12/31/87)
R88-17
This
docket.
The
Phase
II
RCRA
regulations
included
adoption
of
Parts
703
and
724,
which established the permit program and final
ISO standards.
The Phase
II
regulations were adopted and amended as
follows:
R82-19
53 PCB
131, July
26,
1983,
7
Ill.
Req. 13999, October
28,
1983.
R83-24
55 PCB
31, December
15, 1983,
8
Ill.
Req. 200, January
6, 1984.
On September 6,
1984, the Third District Appellate Court
upheld
the
Board’s actions
in adopting R82—19
and R83—24.
(Comonwealth Edison
et
al.
v.
IPCB,
127 Ill. App.
3d 446; 468 NE
2d 1339 (Third Dist.
1984).)
The Board updated the RCRA regulations
to correspond with USEPA
amendments
in
several dockets.
The period
of the USEPA regulations covered by
the update
is indicated
in parentheses:
R84-9
64
PCB 427, June 13,
1985;
9 Ill.
Req. 11964,
effective July 24,
1985.
(through 4/24/84)
R85-22
67 PCB
175, 479, December 20, 1985 and January
9,
1986;
10
Ill.
Reg.
968, effective January
2,
1986.
(4/25/84
-—
6/30/85)
R86—1
71
PCB 110, July 11,
1986;
10
Ill.
Reg.
13998,
August
22,
1986.
(7/1/85
——
1/31/86)
R86-19
73 PCB 467, October 23,
1986;
10
Ill. Reg. 20630, December 12,
1986.
(2/1/86
-—
3/31/86)
R86—28
75
PCB 306, February
5, 1987; and
76 PCB
195, March
5,
1987;
11
Ill. Req. 6017, April
3,
1987.
Correction
at
77 PCB 235,
April
16,
1987;
11
Ill.
Req. 8684,
May
1,
1987.
(4/1/86
-—
6/30/86)
R86-46
July 16,
1987; August
14,
1987;
11
Ill. Req.
13435.
(7/1/86
——
9/30/86)
R87-5
October 15,
1987;
11
Ill. Reg.
19280, November 30,
1987.
(10/1/86
-—
12/31/86)
R87-26
December
3,
1987;
12
Ill.
Req.
2450, January
29, 1988.
(1/1/87
--
6/30/87)
94—229
-4-
R87-32
Correction
to R86-1; September 4,
1987;
11
Ill.
Req. 16698,
October
16,
1987.
R87-39
Adopted June
14, 1988;
12 Ill. Reg. 12999,
August
12,
1988.
(7/1/87
-—
12/31/87)
R8B—16
November
17,
1988
(1/1/88
——
7/31/88)
Illinois received
final
authorization for the RCRA program effective
January 31, 1986.
The Board
added
to the federal
listings of hazardous waste
by listing
dioxins pursuant
to Section 22.4(d)
of the Act:
R84-34
61 PCB 247, November 21, 1984;
8 Ill.
Reg.
24562, effective
December
11,
1984.
This was repealed
by R85-22, which included adoption of USEPA’s dioxin
listings.
Section
22.4(d) was repealed by S.B.
1834.
The Board has
adopted USEPA delistings
at
the request
of Amoco and
Envirite:
R85—2
69
PCB
314, April
24,
1986;
10
Ill.
Reg. 8112,
effective May 2,
1986.
R87—3O
June 30,
1988;
12 Ill.
Reg.
12070, effective July 12,
1988.
The Board has procedures
to
be
followed
in
cases before
it
involving the
RCRA regulations:
R84—lO
62 PCB 87,
349, December
20,
1984 and January
10,
1985;
9 Ill.
Req.
1383,
effective January
16, 1985.
The Board
also adopted
in Part 106 special
procedures
to
be followed
in
certain determinations.
Part
106 was adopted
in R85-22 and amended
in R86-46,
listed above.
The Board
has also adopted requirements limiting and
restricting the
landfilling
of liquid
hazardous waste,
hazardous wastes containing halogenated
compounds and hazardous wastes generally:
R8l-25
60 PCB
381, October
25, 1984;
8
111.
Reg. 24124, December
4,
1984;
R83—28
February 26, 1986;
10
Ill.
Reg. 4875, effective March
7,
1986.
R86—9
Emergency regulations
adopted
at
73 PCB
427, October
23,
1986;
10
Ill.
Reg. 19787, effective November
5,
1986.
The Board’s action
in adopting emergency regulations
in R86-9 was
reversed
(CBE and
IEPA v.
IPCB et al., First District, January
26,
1987).
Hearings
on permanent rules
are pending.
94—230
—5—
MOTION TO CONFORM
As noted above, there were no USEPA amendments
to
40 CFR
144 or 146
during the current update period
(1/1/88 through 6/30/88).
The amendments
in
this Docket address
only the
problems noted
by USI and Cabot
in
their motion
to conform
35 Ill. Adm. Code
704.143(d).
In
the past the Board
has corrected
the type of error alleged
in
the motion either with the current update Docket,
or
by opening
a
special
Docket,
as was the case
in R87—32.
The choice depends
on whether the correction can be made
in
a reasonably prompt manner without
delaying the update.
Addressing
a UIC correction
in
a RCRA update Docket,
as
requested by the motion,
is
a third possibility.
Howe’ter,
the Board did
not
address this in the current RCRA update, R88-16,
since the proposal
had
already been sent
to the Illinois Register for publication.
Adding this
proposal
to R88—16 would
have caused
at
least
a four week delay
in R88—16.
The quickest approach was
to deem the motion
one to reconsider dismissal
of
the instant UIC Docket.
The motion
alleged that
the UIC rules were adopted without
the benefit
of
notice
and
comment procedures.
This is false.
As
is detailed
above,
the
Board
has provided
public notice
and
the opportunity for public
comment
at
every stage of adoption
and amendment of the UIC rules.
The motion alleged that 35
Ill. Adm. Code 704.143(d)
is
not
identical
in
substance with the
1987 edition of
40 CFR
144.21(a).
While
the former
contains
a provision that authorizations
by rule for Class
I and
III wells
expire
on February
2, 1989,
regardless of whether
a
permit
application
is
on
file, the
latter allows
permits
by rule to continue indefinitely while
an
application
is
pending.
The Board
agrees, although the problem
is worse than
indicated
in
the motion.
35
Ill. Adm. Code 704.143 was adopted
in R81—32.
(Complete references
to
Opinions
and Illinois Register versions
for these Dockets are
in the History
above.)
It was based
on
40 CFR
122.37 (1981).
At that time the UIC rules
were
a portion
of USEPA’s
“consolidated”
permit rules, which were very
confusing
and disorganized.
40 CFR
122.37(a)(1)
(1981) provided that:
Injection
into existing Class
I
...
and
III wells may be
authorized
by rule for periods
up to
5 years from the
date of approval
or promulgation
of the UIC program.
All
such wells must be
issued permits within the
five year
period.
40 CFR 122.37(a)(1)(i)(A) and
(B) required
that State
rules
specify that
authorization to
inject
expire either
upon the effective date of
a UIC permit,
or
upon failure
to
file
a timely permit
application.
40 CFR
122.37(a)(1)(i)(C)
(1981)
required that State rules
specify that authorization
to inject expires:
Unless
a complete permit
application
is
pending,
not
later
than five years after approval
or
promulgation of
the UIC program.
40 CFR 122.37 was
a USEPA rule which
prescribed the contents of state
rules without
setting
forth
the text of the rule the
state was
to adopt.
94—231
-6—
Section 13(c)
of the Act
required
the Board
to
fashion
a rule within the
parameters of 40 CFR
122.37.
The Boardts authority to write
rules
in this
situation was ratified by the adoption of Section
7.2 of the Act
in P.A.
85—
1048 (S.B.
1834)
on July
14,
1988.
The Board
responded to the USEPA directive by adopting
35
Ill. Adm. Code
704.141
and 704.143.
Section 704.141 authorized injection into existing Class
I
and III wells,
and Section 704.143 set forth the conditions under which
authorization expired.
Section 704.143 included the three conditions drawn
from 40 CFR 122.37(a)(1)(i),
as well
as three other
conditions drawn
from
other portions of the USEPA rules.
The most important ither condition was the
five year
limit
on authorizations by rule drawn from 40 CFR 122.37(a)(1).
This was placed
in
35
Ill.
Adm. Code 704.143(e), with the
related provision of
40 CFR 122.37(a)(1)(i)(C), which
is quoted
above.
As originally adopted, 35
111. Adm. Code 704.143(e) provided
as follows:
The authorization
...
shall
expire
...:
e)
Two years
after the date of
approval
by USEPA
...
of
the
Illinois UIC program unless,
at
that time,
there
is
a
pending UIC permit
application for the injection
previously authorized
by rules.
Authorization by rule
may continue during
the pendency of the UIC permit
application,
except
that
any such authorization
shall
expire
five years
after the date of approval by USEPA of
the Illinois UIC program.
40 CFR 122.37(a)(1)(i)(C)
(1981) required
states
to
set times
up to
five
years for receipt of
applications.
The Board
adopted
a two year
limit,
reflecting
the relatively small
number
of UIC wells requiring permits
in
Illinois.
(The five year limit was to accommodate permitting of Class
II
wells, which are far more numerous,
and which are regulated
in
Illinois by the
Department of Mines and Minerals.)
No comenters objected to this
implementation of the USEPA prescription.
Section
704.143
had
a note citing 40 CFR 122.37(c) as
its
source.
This
was incorrect.
The
actual
sources were several
provisions
in
40 CFR
122.37(a),
and two other conditions
found outside of Section
122.37.
35
Ill.
Adrn.
Code 704.143 was
amended
in R82-19.
At
that time the error
in the Board
notes was found
and corrected
in
part.
However, the five year
limit
on authorizations by rule was
inserted into Section 704.141, next to the
language authorizing injection by
rule.
This provision then appeared at two
locations
in the Board
rules,
Section 704.141 and Section
704.143(e).
The State
received UIC authorization on February
1,
1984.
35
Ill. Adm. Code 704.143 was
next amended
in R85—23.
At this time USEPA
deconsolidated the
permit rules,
and moved
the UIC provisions
to Part
144.
This introduced
a
lot of confusion.
Also,
the UIC rules
on this point were
changed
from “prescription” rules
to the current
“pattern” format.
However,
the pattern was
so similar
to
the rules
the Board
had adopted
that no major
changes
in format were needed.
In response to USEPA amendments, the Board
modified the ban
on Class
IV wells
and
repealed the
five year limit
on
94—232
—7-
authorizations by
rule
in the duplicated provision
in Section
704. 141.
However, the Board failed
to
repeal
it
at the original
location
in Section
704.143.
Instead, the Board replaced the provision keyed
to approval
of the
Illinois program with the February 2,
1989 date.
This
is the
error complained
of
in the motion.
In the Order
and
Illinois Register versions of R85-23, Section
704.143(e)
was
renumbered
to Section
704.143(d).
However,
in the final, filed version
paragraph label
(d)
was deleted,
and paragraphs
(c) and
(d) combined.
The
version presented
in the motion corresponds with the Board’s Order,
the
Illinois Register version
and the Agency’s printed vers-ton
of the subsection,
but
does
not
correspond with the official version
of the Section.
Therefore,
it
is necessary to
reinsert the subsection label
in this rulemaking.
The Board Order below repeals the 1989 deadline for authorization by
rule.
The Board
has also addressed
the underlying cause of this error
by
inserting more specific references
to the sources of the subsections
in the
CFR.
Note that Section 704.143(c)
is drawn from other Sections.
This was
added
to
afford
a more complete statement of the conditions for termination of
authorization by
rule than provided
in the CER.
Section 704.143(d)
includes
a provision which required UIC applications
for Class
I
and
III wells operating under
a permit
by rule to
be filed
by
February
2, 1986.
40 CFR 144.21(a)(3)(i)(A) now
requires states
to allow five
years for receipt
of applications
for Class
I
and
III wells.
As discussed
above,
the Board orginally adopted
a two year time consistent with then-
current regulations.
The two years expired
on February 2, 1986.
Five years
will
not be
up
until February 2,
1989.
USI and Cabot both met the 1986
application deadline,
and have not mentioned this area of consistency with the
USEPA rules.
In 1982 the Board adopted
a deadline
which
was
consistent
with
USEPA
directives
at the time of adoption.
USEPA approved the UIC program
in
1984,
based
in part
on this deadline.
The time for
filing applications
passed over
2
1/2
years ago,
and this
ts
the first time this possible consistency problem
has come up.
USEPA apparently did
not intend
for Illinois to retroactively
extend the application deadline out to
the limit now
required by
federal
law.
The Board
requested coment
on this point,
but
received no response.
The Board usually
repeals rules which have no prospective effect.
However,
at least
two injectors have applications
still
pending which were
keyed
to this date.
Therefore, the Board
has retained
the application
deadline.
However,
the Board has cited
to
the
1981
CFR to clarify the source
of this rule,
since the
federal
rule
has been repealed.
The Board will withhold
filing these rules only until
December
26,
1988,
to allow time for motions
for consideration
by the agencies involved by
the
authorization process.
The Board
has shortened the holding time for these
rules
in view of the positive coment
on these
simple amendments,
and
in view
of the requests
to extend
the time
in advance
of February 2,
1989.
The Board
has amended
35
III.
Adm. Code 704.143
to achieve consistency
with 40 CFR
144.21.
The complete text follows.
94— 233
-8-
ORDER
The Board amends
35
Ill.
Adm. Code 704 to read
as
follows:
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
704.101
Content
704.102
Scope
of
the Permit
or Rule Requirement
704.103
Identification of Aquifers
704.104
Exempted Aquifers
704.105
Specific
Inclusions
and Exclusions
704.106
Classification
of Injection Wells
704.107
Definitions
SUBPART
B:
PROHIBITIONS
Section
704.121
Prohibition
of Unauthorized
Injection
704.122
Prohibition
of Movement of Fluid into USDW
704.123
Identification of USDW and Exempted Aquifers
704.124
Prohibition of Class
IV Wells
SUBPART
C:
AUTHORIZATION OF UNDERGROUND INJECTION BY RULE
Section
704.141
Existing Class
I
and III Wells
704.142
Existing Class
IV Wells,
not
into USDW (Renumbered)
704.143
Expiration
of Authorization
704.144
Requirements
704.145
Existing Class
IV Wells
704.146
Class
V Wells
704.147
Requiring
a Permit
704.148
Inventory Requirements
704.149
Requiring
other
Information
704.150
Requirements for Class
I and
III Wells authorized by Rule
704.151
RCRA Interim Status for Class
I Wells
SUBPART D:
APPLICATION FOR
PERMIT
Section
704.161
Application
for Permit; Authorization
by Permit
704.162
Area Permits
704.163
Emergency Permits
704.164
Signatories
to Permit Applications
SUBPART
E:
PERMIT CONDITIONS
Section
704.181
Additional Conditions
704.182
Establishing UIC Permit Conditions
94—234
-9-
704. 183
704.184
704.185
704.186
704.187
704.188
704.189
704.190
704. 191
704.192
704.193
Section
704. 201
704.202
704.203
Secti on
704.210
704.2 11
704.212
704. 213
704.214
704.215
704.216
704.217
704.218
704.219
704.220
704. 221
704.222
704. 230
704.240
Applicability
Authorization
Requl rements
AUTHORITY:
Implementing Sections 13 and
22.4 and authorized
by
the Environmental Protection Act (Ill.
Rev. Stat.
1987, ch.
111
1013,
1022.4 and
1027).
Section 27 of
1/2,
pars.
SOURCE:
Adopted
in R81-32,
at
47
PCB 95,
at
6
Ill.
Req. 12479, effective as
noted
in
35 Ill. Adm. Code 700.106; amended
in R82-19,
at
7
Ill.
Reg.
14402,
effective as
noted
in
35
111. Adm. Code 700.106;
amended
in R83—39,
at
55 PCB
319,
at
7
Ill. Reg.
17338,
effective December
19,
1983;
amended
in R85-23
at
10
Ill. Req. 13290,
effective July 29,
1986;
amended
in R87—29 at
12
Ill.
Reg.
6687, effective March
28,
1988;
amended
in R88-2
at
12
Ill. Reg. 13700,
effective August
16,
1988;
amended
in R88—17
at
13
Ill.
Req.
effective
SUBPART
C:
AUTHOP~IZATIONOF UNDERGROUND
INJECTION BY RULE
Section 704.143
Expiration of Authorization
Construction
Requirements
Corrective
Action
Operation Requirements
Hazardous
Waste
Requirements
Monitoring
and
Reporting
Plugging and Abandonment
Financial
Responsibility
Mechanical
Integrity
Additional
Conditions
Waiver of Requirements
by Agency
Corrective Action
SUBPART
F:
REQUIREMENTS FOR WELLS INJECTING HAZARDOUS WASTE
SUBPART G:
FINANCIAL RESPONSIBILITY FOR CLASS
I
HAZARDOUS WASTE
INJECTION WELLS
Applicability
Definitions
Cost
Estimate
for
Plugging
and
Abandonment
Financial
Assurance
for
Plugging
and
Abandonment
Trust Fund
Surety Bond Guaranteeing Payment
Surety Bond Guaranteeing Performance
Letter
of
Credit
Plugging and Abandonment
Insurance
Financial Test
and Corporate Guarantee
Multiple
Financial
Mechanisms
Financial
Mechanism
for
Multiple
Facilities
Release of the Owner
or
Operator
Incapacity
Wording of
the Instruments
94—235
-10-
The authorization provided in Section 704.141
shall
expire upon the earliest
of
the
following:
a)
Upon the effective date of the permit
or
permit denial,
if
a permit
application has been
filed
in
a timely manner
as specified
in Section
704.161(b)(1); or
BOARD
NOTE:
Derived
from
40
CFR
144.21(a)(1)
(1987).
b)
If
a permit
application has not been filed
in
a timely manner as
specified
in Section 7O4.161(b)~(1);or
BOARD NOTE:
Derived
from 40 CFR 144.21(a)(2)
(1987).
c)
If the person authorized
by
rule under Section 704.141
fails to
comply with Section 704.144
or
704.148; or
BOARD
NOTE:
Derived from 40 CFR 144.21(c) and 144.26
(1987).
41
February 2,
1986,
unless,
at that
time,
there
is
a pending UIC
permit
application
for
the injection previously
authorized by rule.
A~theFi~at4eA~y~~i1~e
~ayeent+n~ði~i~ngthe pendeney
ef the Y~
peFR~+tappl~+eat+8RTexeep~that any s~ehabthep3~at+eAsha~exp4Fe
en
~eb~~iavy
2~~989.
BOARD NOTE:
Derived
from 40 CFR 122.37(a)(1)(i)(C)
(1981).
4~ea~4
Nete~ See 4~~R 1~44~2~a4i.~
(Source:
Amended
at
13
111.
Reg.
,
effective
)
IT
IS
SO
ORDERED
I, Dorothy M. Gunn, Clerk
of the
Illinois
Pollution
Control
Board,
hereby
certify that the
above Opinion and Order was adopted
on the /5~day
of
j_~~’,
1988,
by
a vote of
7—o
Dorothy M.
Gunn,
lerk
Illinois
Pollution
Control
Board
94—236