ILLINOIS POLLUTION CONTROL BOARD
September
17,
1987
IN THE MATTER OF:
UIC UPDATE, USEPA REGULATIONS
)
R87—29
(1—1—87 THROUGH 6—30—87)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED 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 proposing
to
amend the UIC regulations.
The Board
invites public comment
for
45 days after publication
of the proposal
in
the Illinois
Register.
On August
20, 1987 the Board opened this docket for the
purpose of updating
the UIC rules
to agree with
recent USEPA
amendments.
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 Act,
it
is
not subject
to first notice
or
to second notice review by the
Joint Committee on Administrative Rules
(JCAR).
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
30,
1987.
The Federal
Register utilized
is
as follows:
52 Fed.
Reg.
20671
June
2,
1987
The Board has shifted from
a quarterly
to
a semiannual
updating of the UIC rules
in anticipation
of the Governor signing
H.B.
1867.
The Board will usually batch USEPA amendments
at
six
month intervals,
and seek
to finalize the adoption process prior
to the end of the next six month period.
This should simplify
the process, since
it will no longer be necessary
to attempt
to
propose
a quarterly update before the prior quarter is done,
which often happens.
HISTORY OF RCRA and UIC ADOPTION
The Illinois RCRA and UIC (Underground Injection Control)
rules,
together with more stringent state rules particularly
applicable
to hazardous waste,
include the following:
81—345
—2--
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
(Proposed)
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.
Adoption
of these
rules has proceeded
in several stages.
The Phase
I RCRA rules 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 rules were adopted as
follows:
R8l—32
47 PCB 93, May 13,
1982;
October
15,
1982,
6
Ill.
Reg.
12479.
The UIC rules were amended
in R82—l8, which
is referenced
above.
The UIC rules were also amended
in R83—39:
R83—39
55 PCB 319,
December
15,
1983;
7 Ill.
Reg.
17338,
December 20,
1983.
Illinois received UIC authorization February
1,
1984.
The
Board has updated
the tJIC rules:
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 6/31/87)
81—346
—3—
The Phase
II RORA rules included adoption of Parts 703 and
724, which established
the permit program and final TSD
standards.
The Phase
II rules were adopted and amended as
follows:
R82—19
53 PCB
131, July
26,
1983,
7
Ill. Reg.
13999,
October
28,
1983.
R83—24
55 PCB
31, December
15,
1983,
8 Ill.
Reg.
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.
(Commonwealth Edison et al.
v.
IPCB,
127 Ill. App.
3d
446;
468 NE
2d 1339 (Third Dist.
1984).)
The Board updated
the RCRA rules
to correspond with USEPA
amendments
in several dockets.
The period
of the USEPA
rules
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—l
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;
11
Ill.
Reg.
13435, August 14,
1987.
(7/1/86
——
9/30/86)
R87—5
Proposed July
16,
1987;
11
Ill.
Reg.
13199, August
14,
1987.
(10/1/86
——
12/31/86)
R87—26
Proposed September
4,
1987,
(1/1/87
——
6/31/87)
R87—32
Correction
to R86—1, September
4,
1987.
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:
81—347
—4—
R84—34
61 PCB 247, November
21,
1984;
8
Ill.
Reg.
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
rules:
R84—lO
62 P08 87, 349,
December
20,
1984 and January 10,
1985;
9
Ill.
Reg.
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.
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 rules adopted October
23,
1986;
10
Ill.
Reg.
19787, effective November
5,
1986,
The Board’s action
in adopting emergency rules
in R86—9 was
reversed
(CBE and IEPA v.
IPCB et a?., First District, January
26,
1987).
Permanent rules are presently the subject of
hearings.
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
proposed below are technical corrections
to the Board rules,
resulting from such things
as changes
to the APA and codification
requirements.
81—348
—5—
Section 702.104
For the
reasons discussed below in connection with the
definitions of “radioactive waste” and “total dissolved solids”
the Board
is proposing to add 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
is proposed for amendment
in R87—26,
Some of
the changes indicated may actually be made
in that Docket prior
to action on this 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
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 proposed
to delete
definitions with no obvious function in these programs.
The
Board solicits comment
on these proposed deletions.
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.
The
Board solicits comment as
to whether
this definition
is necessary
in the State program.
New requirements
on incorporations by reference have been
added to the Administrative Procedure Act.
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 USEPA 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
81—349
—6—
“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
UIC 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.
Unless these are incorporations by
reference,
they 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 rule or
statute and track
it
to the present.
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.
The Board has modified the definition
of “disposal”
to more
closely correspond with the definition
in
40 CFR 270.2.
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—1, 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 proposed
to amend 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
more closely follow the federal intent.
The Board has added the January 31,
1986 date
to the
definition of
“final authorization.”
The Board solicits comment
as
to whether
this
is correct, especially considering the
ambiguity surrounding
authorization of program portions mandated
by HSWA.
The Board has proposed
to delete the reference
to
35 Ill,
Adm.
Code 809 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
require~e~t~
81—350
—7—
The Board
has proposed
to delete
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 proposed
to replace the definition of
“POTW” with
a reference
to the definition
in the pretreatment
rules proposed in R86-44, which presumably will be
in place by
the time the Board takes final action on this proposal.
The
Board has crafted
a better State definition which
is central
to
that Part.
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 solicits comment
as to whether
there
is
a better
State reference for the “Section 404 program.”
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 proposed
to delete the federal references from
the definition of “UIC.”
As used
in the Board
rules,
this term
seems
to simply mean the Illinois underground injection control
program, which 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
proposed
to modify the levels of indentation
in this definition
along
the same lines
as
is discussed above
in connection with
“existing HWM facility.”
The Board has proposed
to delete 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
no direct function
in the
RCRA or UIC programs.
81—351
—8—
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
proposed to add 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)(l)
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 USEPA 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 USEPA
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 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).
This Proposed Opinion supports the Board’s Proposed Order
for public comment
of this same
day.
81—352
—9—
I,
Dorothy
M. Gunn,
Clerk
of
the Illinois Pollution Control
Board, here~ycertify that the above Proposed Opinion was adopted
on the
,~‘7~-~--
day of
~
,
1987,
by
a vote of
~
Dorothy
M. Gunn, Clerk
Illinois Pollution Control Board
81—353