ILLINOIS POLLUTION CONTROL BOARD
January
21, 1988
IN THE MATTER OF:
UIC UPDATE, USEPA REGULATIONS
)
R87-29
(1—1—87 THROUGH 6—30—87)
FINAL ORDER.
ADOPTED RULE
OPINION OF THE BOARD
(by J. Anderson):
By a separate Order, pursuant
to Section 13(c)
of the
Environmental Protection Act
(Act),
the Board
is amending the UIC
regulations
found
in 35
ill.
Adm.
Code 702 and 704.
On August 20,
1987
the Board opened this docket for
the
purpose of updating the UIC rules
to agree with recent USEPA
amendments.
On September
17, 1987,
the Board proposed amendments
to 35
Iii. Adm.
Code 702 and 704.
The proposal appeared October
30, 1987,
at 11
Ill. Reg.
17366.
As is detailed below, the Board
has modified
the proposal in response
to public comment received.
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
“identical
in
substance”
to
federal
regulations;
Section
13(c)
provides
that
Title
VII
of
the
Act
and
Section
5
of
the
Administrative
Procedure
Act
shall
not
apply.
Because
this
rulemaking
is
not
subject
to
Section
5
of
the Administrative Procedure
ATct,
it
is
not
subject
to
first
notice
or
to
second
notice review by the
Joint
Committee
on
Administrative
Rules (JC~R).
The federal UIC
regulations are found
at 40 CFR 144 and 146.
This rulemaking
updates Illinois?
UIC rules
to correspond with federal amendments
during the period January
1 through June 20,
1987
The Federal
Register utilized
is as follows:
52 Fed.
Reg.
20671
June
2,
1987
PUBLIC COMMENT
The proposal appeared October
30,
1987,
at 11
Ill.
Reg.
17366.
The Board received the following public comment:
PC
1
Department of Commerce and Community Affairs, Small
Business Office,
(DCCA), Linda Brand, November 30,
1987
PC
2
Illinois Environmental Protection Agency (Agency),
Phillip
R.
Van Ness,
December 28,
1987
85—307
—2—
On
December
28,
1987,
the
Agency
filed
a
motion
for
leave
to
file its comment after the close of the public comment period.
In
that
the
late
filing
was
due
to
a
clerical
error
and
has
not
caused
significant
delay,
the
Board
will
grant
the
motion.
On
November
30,
1987
the
Board
received
a
“small
business
impact
analysis”
from
DCCA.
(PC
1)
This
concludes
that
there
is
no
impact
on
small
business.
The
Board
has
made
it
a
public
comment
since
it
includes
factual
assertions
which
may
be
relevant
to
this
rulemaking.
The
Board
has
also
received
codification
comments
from
the
Administrative
Code
Unit.
On
November
3,
1987,
the
Board
received
a
“State
Mandates
Act
Questionaire”
from
the
Joint
Committee
on
Administrative
Rules
(JCAR).
The
Board
declined
to
respond
since
the
Questionaire
is
based
on
Section
5
of
the
Administrative
Procedure
Act
(APA),
and
Section
13(c)
of
the
Act
provides
that
Section
5
of
the
APA
shall
not
apply
to
this
rulemaking.
The
Board further noted
that this rulemaking imposes mandates on
units
of local government only to the extent they may be involved
in the operation of underground
injection wells, which
is not a
normal governmental activity.
The Board further notes that the
impacts flow from the statutory “identical
in substance” mandate
and the USEPA rules,
not
from a Board substantive initiative.
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 Wastes
730
UIC Operating Requirements
731
Underground Storage Tanks
Special procedures
for RCRA cases are included
in Parts
102,
103,
104 and 106.
85—308
Adoption of these regulations has proceeded
in several
stages.
The Phase
I RCRA regulations were adopted
and amended
as
follows:
R81—22
45 PCB 317, February
4,. 1982,
6 Ill.
Reg. 4828,
April
23,
1982.
R82—l8
51 PCB 31, January 13, 1983,
7 Ill. 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:
R8l—32
47 PCB 93, May 13,
1982;
October
15,
1982,
6
Ill.
Reg.
12479.
The UIC 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:
R85—23
June 19,
1986;
10 Ill. Reg.
13274, August
8,
1986.
R86—27
Dismissed April 16,
1987
(No USEPA amendments
through 12/31/86).
R87—29
This Docket
(1/1/87 through 6/30/87)
R88—2
Next Docket
(7/1/87
through 12/31/87)
The Phase
II RCRA regulations included adoption of Parts
703
and 724, which established
the permit program and final TSD
standards.
The Phase
II regulations were adopted
and amended
as
follows:
R82—l9
53 PCB 131, July 26,
1983,
7
Ill. Reg.
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—l9 and R83—24.
(Commonwealth 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
85—309
—4—
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.
Reg. 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
July
11,
1986;
10
Ill.
Reg.
13998, August 22,
1986.
(7/1/85
——
1/31/86)
R86—l9
October 23,
1986;
10
Ill.
Reg.
20630,
December 12,
1986.
(2/1/86
——
3/31/86)
R86—28
February
5 and March
5,
1987;
11
Ill. Reg.
6017,
April
3,
1987.
Correction April
16,
1987;
11 Ill.
Reg.
8684, May 1,
1987.
(4/1/86
——
6/30/86)
R86—46
July 16,
1987;
August 14,
1987;
11
Ill.
Reg.
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.
Reg.
(1/1/87
——
6/30/87)
R87—32
Correction
to R86—1; September
4,
1987;
11 Ill.
Reg.
16698, October
16,
1987.
R87—39
Opened December
3,
1987.
(7/1/87
——
12/31/87)
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. Req.
24562,
effective December
11,
1984.
This was effectively repealed by R85—22, which included
adoption of USEPA’s dioxin listings.
The Board has adopted
a
USEPA delisting
at the request of Amoco:
R85—2
April 24,
1986;
10
Ill. Reg.
8112, effective May 2,
1986.
The
Board
has
procedures
to
be
followed
in
cases
before
it
involving
the
RCRA
regulations:
R84—l0
62
PCB
87,
349,
December
20,
1984
and
January
10,
85—3 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
Ill.
Reg. 24124,
December
4,
1984;
R83—28
February 26,
1986;
10 Ill.
Reg.
4875, effective
March
7,
1986.
R86—9
Emergency regulations adopted 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 a?., First District,
January 26,
1987).
Hearings on permanent rules are pending.
DETAILED DISCUSSION
The
single USEPA amendment,
in the June
2,
1987 Federal
Register, contains only technical corrections resulting from
amendments
to the Safe Drinking Water
Act.
As
it turns out, most
of the amended provisions have
no Illinois counterpart, affecting
USEPA administered programs only.
Most of the amendments below
are
technical corrections
to the Board
rules, resulting from such
things
as changes to the APA and codification requirements.
Section 702.104
For the reasons discussed below in connection with the
definitions of “radioactive waste” and “total dissolved solids”
the Board
has added references to
10 CFR 20 and
40 CFR 136
to
the
table of incorporations by reference.
Also,
for the reasons
discussed
in Section 704.122,
the Board
is adding
an
incorporation of the primary drinking water standards of 40 CFR
142.
This Section was amended
in R87—26.
The text has been
updated
to reflect that Docket.
Section 702.110
USEPA has amended the definition of “SDWA”
(Safe Drinking
Water
Act)
to include recent amendments.
The Board has updated
its reference.
The Board
has also made a number of editorial
corrections to the definitions
table.
This list of definitions was orginally adopted based
on the
85—311
—6—
consolidated permit rules of old
40 CFR 122.
At that time it was
difficult
to tell which definitions applied
to the RCRA and UIC
programs, and which applied
to air and water programs.
The Board
has reviewed the definition set and deleted definitions with no
obvious function
in these programs.
The Board has deleted the specific reference to future
revisions of the application form from the definition of
“application”.
The definition clearly encompasses
forms
promulgated
in
the
future
by
the
Agency
pursuant
to
Section
39(a)
of the Act even without specifically stating.
In “approved program” the Board has updated
a reference
to
the deconsolidated RCRA rules on program approval.
The Board has
also added
the equivalent UIC reference from
40 CFR 144.3.
New requirements on incorporations by reference have been
added
to the Administrative Procedure Act
(APA).
This has caused
the Board
to look closely to determine whether references to
USEPA rules are incorporations by reference which would require
compliance with new procedures.
The reference
in “approved
program”
is not an incorporation by reference.
Rather, the
definition
is referencing USEPA’s decision
in approving state
programs.
The reference
to the federal rules and statute serves
to identify the tJSEPA decision being referenced.
By way of
contrast, an incorporation by reference would be a rule which
provided that the Agency or Board decided whether programs were
“approved”, utilizing the USEPA standards for program approval.
The APA prohibits incorporation by reference of future
amendments
(“forward incorporations”).
In the definition of
“approved program”
the Board intends that state programs which
USEPA might approve
in the
future based
on amended
rules would
be
“approved programs.”
The point is that USEPA approved
a RCRA or
U1C program based
on
its current rules, as opposed
to approving,
for example,
a water quality plan under
Section 302 of the Clean
Water
Act.
The
Board
has
added
a
date
to
all
references
to
federal
rules
and statutes.
Where
the reference
is
an incorporation by
reference, formal language has been
used to
so state.
Unless
so
stated, these dates are not
intended to cut off future amendments
to
the rules.
Rather, the point is
to specify a certain edition
so
that,
in the future,
a person can refer
to
a definite edition
of
a rule or statute and
track it
to the present.
(PC
2)
This
should
avoid the problems which have
risen
in this Part from the
USEPA renumbering of
40 CFR 122 and 123.
The Board has reviewed all of the definitions below and
determined that only three include an incorporation by
reference.
In
those definitions the Board has added
a citation
to the incorporations by reference Section which contains the
information required by the APA.
85—312
The Board
has modified the definition of “disposal”
to more
closely correspond with the definition
in 40 CFR 270.2.
Specifically,
the Board
has deleted “or into any well”, which
does not appear
in the corresponding USEPA definition.
The
Agency incorrectly asserts that this phase
is contained
in 40 CFR
270.3
(PC
2).
This language was adopted
in error
at an earlier
date.
The Agency proposal
in R81—32 contained the definition
with the phrase added.
In the adopting Opinion the Board noted
the inconsistency with the USEPA definition
and indicated that
it
would strike the phrase.
(47 PCB 95,
99).
However,
this change
inadvertantly was not made to the rules as actually adopted.
(6
Ill.
Req.
12479,
12493).
The existing language appears
to make UIC injection
a
“disposal” subject to the RCRA permit requirement and additional
RCRA limitations on “disposal.”
The RCRA and UIC permit programs
are related, federally mandated programs which,
in the case of
injection of hazardous wastes, potentially overlap.
As provided
by 35 Ill.
Adm. Code 704.203,
724.101(d)
and 725.530,
a person
operating only an injection well
is subject only to certain RCRA
requirements, which are implemented by way of the UIC, not a
RCRA,
permit.
Associated treatment and storage operations may
be subject
to the RCRA permit requirement.
Inclusion of the
reference to wells
in the definition
is subject
to the
interpretation that injection
is itself disposal subject to the
RCRA
permit
requirement.
The Agency has argued that the Board should
follow the
definitions
in the Act on this point, rather than the USEPA
rules.
(PC
2)
However, Sections 13(c)
and 22.4(a) mandate that
the Board
adopt regulations which are “identical
in substance”
with the federal UIC and RCRA
rules.
Replacement of the USEPA
regulatory
definitions
with
definitions
from
the
Act
would
alter
the
scope
of
these
programs,
resulting
in
programs
which
were
not
“identical
in substance,”
and violating Sections 13(c)
and
22.4(a).
Use of only the federal definition sets with the
federally
derived
rules
was
an
important
governing
principal
decided early
in the RCRA/UIC adoption process.
(R81—22, Opinion
of February 4,
1982;
45 PCB 317,
333).
The
definition
of
“draft
permit”
has
been
modified
to
remove
the
phrase
“revoke
and
reissue.”
As
was
discussed
in
the
Board’s
Opinion
in R85—23 and R86—l,
permit revocation
is
a Board
function, which proceeds without
a draft permit.
The Board has
utilized the
term “reissuance”
to describe the process by which
the Agency cancels
an old permit
and replaces
it with a new
one.
The Board has amended this definition
for consistency.
The Board has modified the indentation in the definition of
“existing HWM facility” to more closely follow the USEPA rule.
Under
the codification
rules the Board
is not allowed
to use
subsection labels
in a definition, but must rely entirely on
level
of indentation
to express subordination.
Placing
the word
“either”
in
a separate paragraph
seems
to make the definition
8 5—313
—8—
more closely follow the federal
intent.
The Board
has added
the January 31, 1986 date
for
initial
RCRA program authorization to the definition of
“final
authorization.”
(PC
2)
The Board has deleted the reference
to
35
Ill. Mm. Co~e809
from
the
definition
of
“manifest.”
As the term is used
in the
700’s series, the term seems to be restricted
to the Part 722
manifest.
Section 700.303 provides that compliance with the Part
722 manifest requirement satisfies the Part 809
requirement.
The
Board
has
deleted
the
federal
references
from
the
definition
of
“NPDES.”
Instead
the
Board
will
reference
only
the
derivative
State
program
pursuant
to
Section
12(f)
of
the
Act
and
35
Ill.
Adm.
Code
309.
This
eliminates
several
federal
references
which
could
be
construed
as
incorporations
by
reference.
The
Board
has
also
replaced
the
definition
of
“POTW”
with
a
reference
to
the
definition
in
the
pretreatment
rules
adopted
in
R86—44,
on
December
3,
1987.
The
definition
of
“radioactive
waste”
appears
to
be
a
true
incorporation
by
reference
of
the
NRC
standards
of
10
CFR
20.
The
Board
has
added
a
reference
to
Section
702.104,
and
amended
that
Section
as
discussed
above.
The
Board
solicited
comment
as
to
whether
there
is
a
better
State reference for the “Section 404 program.”
The
Board
has
deleted
this
definition
since
it appears to serve no purpose
in
the
RCRA
or
UIC
programs.
(PC
2)
The
definition
of
“SIC
Code”
appears
to
be
a
true
incorporation
by
reference.
The
Board
has
added
a
reference
to
35
Ill.
Adm.
Code
720.111,
in
which
the
full
APA incorporation by
reference already exists.
The
definition
of
“total
dissolved
solids”
includes
a
reference
to
the
USEPA
test
methods
of
40
CFR
136.
This
appears
to
be
a
true
incorporation
by
reference.
The
Board
has
added
a
reference
to
Section
702.104,
and
amended
that
Section
as
discussed
above.
The
Board
has
deleted
the
federal
references
from
the
definition
of
“UIC.”
As
used
in
the
Board
rules,
this
term
refers
only
to
the
underground
injection
control
program
in
Illinois,
which
program
has
already
been
approved.
The
Board
has
corrected
a
typographical
error
in
the
definition
of
“USDW”
(Underground
Source
of
Drinking
Water).
The
reference
should
be
to
water
with
more
than
10,000
mg/L
total
dissolved
solids
(rather
than
“solvents”).
The
Board
has
also
modified the levels of indentation
in this definition along
the
85—314
same lines as
is discussed above
in connection with “existing HWM
facility.”
The Board has deleted the definitions of
“waters of the
U.S.”
and
“wetlands.”
These are not
found
in
the 40 CFR 144.3
or
270.2 definitions and
to serve
rio
direct function
in the RCRA or
UIC programs.
Section 704.101
This Section
is drawn from 40 CFR 144.1,
which USEPA has
amended
to update
its reference
to the SDWA.
As it exists,
the
Board rule does not have this reference.
However,
the Board has
added
references which are appropriate
in
a State
rule.
Section 704.106
This Section
is drawn from 40 CFR 144.6,
which USEPA has
amended.
The definition of Class
II wells
in Section
704.106(b) (1)
has been modified
to include wells which
inject
fluids associated with natural gas storage operations.
Note that
Class
II wells are regulated by the Department of Mines and
Minerals, rather than the Board.
It is necessary for the Board
to
include a definition of this Class of wells to avoid
the
implication that wells associated with petroleum and gas
production
and storage would be Class V wells.
Section 704.122
This Section
is drawn
from 40 CFR 144.12,
which USEP~has
amended
to update references and
to add new requirements
resulting from the amendments.
Most of these concern enforcement
by USEPA pursuant to the SDWA in states without primacy.
They
are not appropriate
in Illinois rules.
Section 704.122(e)
has been amended, pursuant to
tJSEPA
amendment,
to allow the Agency to take emergency action as soon
as
it learns that contaminants have entered
a USDW,
without
having
to wait for entry. into
a public water supply.
The Board
has also added
a
reference to the Agency’s seal authority under
Section 34 of the Act.
This will allow the Agency to act under
Section 34(a)
of
the Act
to seal equipment without having
to show
“an immediate danger
to health,”
as would
be required for action
under
Section 34(b)
of the Act in the absence of
a Board
rule.
The Board has modified
the language to more closely track Section
34.
(PC
2)
The Board has added
a reference
to the incorporation by
reference of the national primary drinking water standards of 40
CFR 142, discussed above
in connection with Section 702.104.
The Board has also corrected
an apparent erroneous cross
reference at the end of Section
704.122(b).
85—315
—10—
This Opinion supports the Board’s Order
of this same day
amending 35
Ill. Adm. Code 702 and 704.
The Board will withhold
filing
the
adopted
rules
until
February
21,
1988,
to
allow
time
for motions for reconsideration by the agencies involved in the
authorization
process.
IT
IS
SO
ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby
certi
that
the
above
Opinion
was
adopted
on
the
e~/4~day of
______________,
1988,
by
a
vote
of
7~O
Dorothy
M. Gunn, Clerk
Illinois
Pollution
Control
Board
85—316
