1. 70-311
ILLiNOIS POLLUTION CONTROL BOARD
June 20,
1986
IN THE MATTER OF:
)
UIC UPDATE, USEPA REGULATIONS
)
R85—23
(THROUGH 6/30/85)
)
FINAL ORDER. ADOPTED RULES.
OPINION OF THE BOARD
(by J.
Anderson):
By a separate Order, pursuant to Section
13(c) and 22.4(a)
of the Environmental Protection Act
(Act),
the Board
is amending
the UIC regulations.
On October
1,
1985,
the Illinois Environmental Protection
Agency (Agency) filed with
the Board
a rough draft of
a proposal
to update
the RCRA and UIC regulations.
In R85—22, the Board
amended the RCRA regulations
in an Order and Opinion of December
20, 1985 and January
9,
1986,
respectively.
This Docket, R85—23,
concerns the UIC rules.
The Agency1s submittal
is marked PC
I in
both dockets.
Section 13(c) of
the Act governs adoption of regulations
establishing the UIC program in Illinois.
Section 13(c) provides
for quick adoption of
regulations which
are
‘tidentical
in
substance”
to federal regulations.
Neither Title VII
of the Act
nor Section
5 of
the Administrative Procedure Act applies
to
rules adopted under Section 13(c).
Because this rulemaking
is
not subject to Section
5 of the Administrative Procedure Act,
it
is not subject
to 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 adopted through June 30,
1985.
The Federal Registers utilized are as follows:
49 Fed.
Reg.
20138
May
11,
1984
(Ex
10)
49 Fed. Reg. 45304
November
15,
1984
(Ex
23)
Copies of these
items are attached
to PC
1 as exhibits with
the number indicated.
In
that the November 15,
1985
amendments
are irrelevant to the Illinois program,
only the May 11, 1984
amendments have resulted
in any changes.
On February
6,
1986,
the Board adopted an Opinion
and Order
proposing
to amend the UIC rules.
The proposal appeared on March
14,
1986 at 10
Ill.
Reg. 4371.
70-311
—2—
PUBLIC COMMENT
The following is
a list of the public comment
in this
matter:
PCi
Draft proposal
from the Agency (10/1/85)
PC2
Financial assurance forms
PC3
United States Environmental Protection Agency
(USEPA)
(3/25/86)
PC4
LTV Steel Company and Illinois Steel Group
(LTV)
(4/29/86)
PC5
Agency
(5/5/86)
PC6
LTV
(5/6/86)
PC7
Agency
(5/27/86)
PC.
and PC2 were preliminary documents which
the Board
placed
in the public comment file.
PC2 through PC
5 were
received
in response
to the proposal.
However, LTV refiled
its
comment for clarification.
This was filed as PC6.
On May 7, 1986,
the Hearing Officer requested that other
participants comment on the LTV comments.
On May 27, 1986,
the
Board received from the Agency PC
7
in reply to the LTV comments.
On April
20, 1986,
the Board received codification comments
from the Administrative Code Unit.
UISTORY OF
RCRA
and UIC ADOPTION
The Illinois RCRA and UIC
rules,
together with more
stringent state
rules 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
729
Landfills:
Prohibited Wastes
730
UIC Operating Requirements
Special procedures
for RCRA cases are included
in Parts
102,
103,
104 and 106.
Part 731, Underground Storage Tanks, has been
proposed
in R86-l, described below.
Adoption of
these rules has proceeded in several stages.
The Phase
I
RCRA rules
were adopted and amended as
follows:
70-312
—3--
R8l—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
tJIC
rules were adopted
as follows:
R81—32
47 PCB 93,
6
Ill. Reg.
12479.
The QIC rules were amended
in R82—18, 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 Phase II RCRA 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—l9
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—l9 and R83—24.
(Commonwealth Edison et
al.
v.
IPCB,
127 Ill. App.
3d 446,
468
N.E. 2d 1339
(3rd Dist.
1984).)
The Board updated the RCRA rules
to correspond with USEPA
amendments in two dockets:
R84—9
June
13,
1985;
9
Ill. Reg.
11964,
effective July
24,
1985.
R85—22
December
20,
1985 and January
9, 1986;
10
Ill. Reg.
968, effective January
2.,
1986.
Authorization
for the RCRA program was received
from USEPA,
effective 1:00 p.m. EST January 31, 1986.
The Board has two pending dockets
to update the RCRA rules:
R86—l
April 24,
1986;
proposed on May
23,
1986 at
10
Ill.
Reg.
8256.
70-313
R86—19
Docket opened June 5,
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 effectively
repealed by R85—22, which included
adoption
of USEPA’s dioxin listings.
The Board adopted procedures
to be followed
in cases before
it
involving the RCRA rules:
R84—lO
December
20,
1984,
and January 10,
1985;
9 Ill.
Reg.
1409, effective January 16, 1985.
The Board adopted
in Part 106 special procedures
to be
followed
in certain determinations.
Part 106 was adopted
in R85—
22, which
is listed above.
The Board adopted requirements limiting and
restricting
the
landfilling of liquid hazardous waste and hazardous wastes
containing
halogenated compounds:
R8l—25
October
25,
1984;
8
Ill.
Reg.
24124,
December
4,
1984.
R83—28
February 26,
1986;
10
Ill.
Reg.
4864,
March
7,
1986.
The Board has opened dockets R86—9 and R86—ll
to address
additional
issues concerning restrictions on land disposal.
Section 6.2 of
the Act requires the Illinois Department of
Energy and Natural Resources to conduct
a study of underground
injection
in the State.
The Board will open
a docket
and conduct
the hearings required by Section 6.2 after
it receives the
report.
GENERAL SUMMARY
Major issues which have arisen
in this matter include the
following:
1.
Consistency with USEPA’s reorganized
rules.
2.
Whether
to adopt “USEPA specific” language
in the May
11,
1984 amendments.
3.
Whether
to give retroactive effect
to the USEPA
prohibition on Class
IV wells (Section 704.124).
70.314
—5—
4.
Whether packers are required of existing wells
authorized by rule (Section 704.150).
A general discussion of the first two areas follows.
Detailed discussion of the prohibition
on Class IV wells and
packer requirements appear with the detailed discussion of
specific Sections.
CONSISTENCY WITH REORGANIZED RULES
The RCRA and UIC programs were originally derived from 40
CFR 122, which also included
the NPDES and other major
federal
programs.
The Board adopted the programs as Parts 702, 703 and
704.
Part 702 included material
in common between the RCRA and
UIC programs; while Parts 703 and 704 included, respectively,
specific RCRA and UIC material.
A major reason
for structuring
the
rules
in this manner was
to aid
in future comparison with the
federal
rules.
However, USEPA has now deconsolidated
its permit
rules, placing the UIC program in
40 CFR 144 and the RCRA program
in
40 CFR
270.
This has made
it very difficult to compare the
Board’s rules with USEPA’s rules.
The Board will therefore place
correspondence tables
into this Opinion
to aid future comparison
of the rules with the USEPA rules.
The correspondence tables represent the rules
as amended,
which involves some renumbering and additions
to the existing
language.
Federal provisions which have no Illinois counterpart
have
a “fed” entry.
There
are two tables:
one to find the source of an Illinois
Section,
the other
to find the disposition of a USEPA
provision.
The conversion
table from the Illinois Administrative
Code
to
the CFR
is as
follows:
TABLE
1
35 Ill. Adm.
40 CFR
Code
702.103
144.5
702.121
144.31(b)
702.122
144.31(d)
702.123
144.31(e)
702.124
144.31(f)
702.125
144.37
702.126
144.32
702.140
144.52(c)
702.141
144.51(a)
702.142
144.51(b)
702.143
144.51(c)
702.144
144.51(d)
702.145
144.51(e)
702.146
144.51(f)
702.147
144.51(g)
70-315
.4
C
-4-4—i
000
Qa()
tTØJ
S.-
S.
-4-3-3-3-3-4-4-4-4-4-4-4-3-3-4-4-4-4-4-4-3-4-4-4-3-4-3-3
~
•
.
*
I
~
I
•
~
a
*
.
.
.
.
.
.
I
a
a
~
*
S...
‘a
‘a
‘a
-4-4-4-4-3-4-3-3-3-4-4-4-3-4-4-4-4-4-3-3-3-3
00
0
000
000
00000
000
00
0
00
~Jt~J
~~O)~InInU1U1U1~
5-
5-5-5-
~~5-rs
h)
S...
-a
-.~‘a
a
a
I
*
S
I
S
I
S
*
I
0
5
5
5
S
~
5
I
I
S
S
I
I
I—~ f-
~
~
~.SL~)r-r-.r
-~
r-5-
5-
5-
....
5-
‘a
‘a
‘a
u~tTtO
~Q ~
g,
‘a
‘a-a
-a’a’a
C)
tTW
•
I
I
a
.
a
I
I
S
I
S
S
a
*
•
a
*
InInInInU1U1U1InUIItTU1
~O
Ui
~
La
La
C’t
~
t4
~)i-’
~
~
~
)—~ f-~
.__‘a
____‘a’a
‘a-a-a-a-a
Laf’JI-~
-a
S.-
-a
‘-0
—7—
704.163
704.164
704.181(a)
704.181(b)
704.181(c)
704.181(d)
704.181(e)
704.181(f)
704.181(g)
704 .182
704.183
704 .184
704.185
704 .186
704.187
704.188
704.189
704.190
704.191
704.192
704.193
704.201
704.202
704.203
704.210
704.211
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
fed
fed
fed
fed
fed
fed
fed
fed
fed
fed
fed
fed
144.34
144.32(a) (1)
144.51(a)
l44.5l(j)(2) (ii)
144.51(m)
144.51(1) (6)
144 .51(n)
144.51(o)
144.51(p)
144.52(a)
144.52(a) (1)
144.52(a) (2)
144.52(a) (3)
144.52(a) (4)
144
.
52(a)
( 5)
144.52(a) (6)
144.52(a) (7)
144 .52(a) (8)
144.52(a) (9)
144.16
144.55
144.14(a)
144.14(b)
144.14(c)
144.60
144. 61
144.62
144.63
144.63 (a)
144.63(b)
144.63(c)
144.63(d)
144.63(e)
144.63(f)
144.63(g)
144.63(h)
144.63(i)
144 .64
144.70
144 .1(b)
144.1(c)
144.1(d)
144.1(e)
144.1(f)
144.2
144.4
144.8
144.15
144.22
144.65
144.66
70-317
—8—
40 CFR
TABLE
2
35 Ill. Adm.
Code
144.1(a)
144.1(b)
144.1(c)
144.1(d)
144.1(e)
144.1(f)
144
.
1 (g)
144.1(g)
144.1(g)
144.1(g)
(1)—(3)
144.2
144 .3
144.4
144.5
144.6
144.7(a)
144.7(b) (1)
144.7(b) (2)
144.7(b)(3)
144.7(c)
144.8
144.11
144.12
144.13
144.14 (a)
144.14(b)
144.14(c)
144.15
144
.
16
144.21
144.21(a)
144.21(b)
144 .21(c)
144.22
144.23
144.23
144.24
144.25
144.26
144.27
144.28
144.31(a)
144.31(b)
144.31(c)
144.31(d)
144 .31(e)
144 .31(e) (9)
144 .31(f)
144.31(g)
704.101
fed
fed
fed
fed
fed
704.102
704.103
704.104
704 .105
fed
704.107
fed
702.103
704.106
704.123(a)
704.104
704.123(b) (2)
704
.
123 (b
)
(3)
704.123(b) (3)
fed
704 .121
704~.122
704.124
704.201
704.202
704.203
fed
704.192
704.141
704.143
704.141
704.144
fed
704 .142
704.145
704.146
704.147
704.148
704.149
704.150
704.161(a)
702.121
704.161(b)
702 .122
702.123
704.161(d)
702. 124
704.161(c)
70.318
-4
C
C,)
‘C
•
I
I
I
I
I
a
a
S
S
S
S
I
S
I
S
S
I
S
*
I
S
I
I
S
S
5
CLTDI
C)
tTDI
Di
Di
Di
Di
Di
Di
Di
Di
Di
Di’ti
0
~
~
-Li~~-Dtr)
~-t-,m
0~0
~7Di
Di
C)
Di
I-..
‘—-‘a
-4-3-4-4-4-4-3-3-4-3-3-4-3-3-3-4-3-3-4-3-3-4-4
00000000000000000000000
•
S
S
S
S
I
S
I
S
I
S
I
S
I
I
~
S
I
S
I
S
I
~
~o~c~coo~
-3-3-4-4-3-4-4-4-3-4-4-3-4-4-3-4-4-4-4-4-3-3-4-3-4-4-4-4-3-4-3
0000000000000CD00ci0000cD00000cD000
S
I
I
~
I
S
S
I
I
S
I
5
I
I
I
I
I
5
5
•
I
I
S
~
Di
C)
hi
‘~0
—10--
144.61
704.211
144.62
704.212
144.63
704.213
144.63(a)
704.214
144.63(b)
704.215
144.63(c)
704.216
144.63(d)
704.217
144.63(e)
704.218
144.63(f)
704.219
144.63(g)
704.220
144.63(h)
704.221
144.63(i)
704.222
144.64
704.230
144.65
fed
144.66
fed
144.70
704.240
In the course of preparing
the proposal,
the Board
reviewed
the UIC—related provisions against the existing
tJSEPA
rules.
The
Board corrected
a number
of inconsistent provisions.
The reasons
for these
inconsistencies appear
to include:
USEPA’S
reorganization of the rules;
incorrect placement of RCRA— or UIC—
specific language
in Part 702;
and USEPA amendments
which may
have earlier
gone unnoticed.
“USEPA SPECIFIC” PROGRAM ELEMENTS
The amendments
to
40 CFR 144
at 49 Fed. Reg.
20181 include
many provisions which
state
that they apply only
in USEPA—
administered UIC programs.
This caused difficulty in drafting
the proposal
(PC 5).
Section 13(c)
of the Act requires the Board to adopt
a UIC
program which is “identical
in substance”
to the UIC program
contained
in the Safe Drinking Water Act and federal
regulations
adopted pursuant thereto.
In earlier adopting the UIC program,
the Board adopted
rules which
were verbatim with
tJSEPA rules,
except where
there was a good reason why the rule could not be
adopted
in Illinois.
The resulting rules have been approved by
USEPA.
Now that USEPA has adopted a large number of “USEPA
specific” provisions,
a question arises
as
to whether
the Board
should attempt
to keep its UIC rules as nearly verbatim as
possible with the
rules
as administered by USEPA,
or whether the
Board should move to a program which adopts only those USEPA
provisions which are minimally necessary to maintain “substantial
equivalence”
in the opinion of USEPA.
The Board has followed the
former approach.
In
so doing,
the Board believes that this up--
front effort will shorten the review time needed for subsequent
updating, will make comparison easier, will avoid
a “drifting
apart” of
the Federal and State
text,
will assure that the
program remains “identical
in substance” with the CJSEPA UIC
program as well as “substantially equivalent”, will make
compliance easier
for the public,
and, most importantly, will
70-320
—11—
assure over
time that the pieces of the program will continue to
mesh.
For these
reasons the Board will maintain its rules
as
nearly verbatim as possible with the UIC
rules as applied by
USEPA in States where USEPA administers the UIC program.
DETAILED DISCUSSION
Section 702.123
This
is derived
in part from 40 CFR 144.31(e), which was
amended at 49 Fed.
Reg.
20185
to add special notice requirements
for
surrounding landowners.
Since this applies
only to UIC,
it
will
be dealt with by adding a new Section 704.161(d)
corresponding to 40 CFR 144.3l(e)(9).
(v.i.)
Section 702.126
The UIC application
for
a corporation must be signed by an
officer
of
at least the level
of vice president.
(40 CFR
l44.32(a)(l))
In order
to make
the UIC program more consistent
with the
federal,
the Board will add
a new Section 704.164
to
express this UIC—specific requirement.
(v.1.)
Section 702.144
The duty to mitigate
is worded differently
in 40 CFR
144.51(d)
and 270.30(d),
for DIC and
RCRA
permits.
In order
to
make the programs more consistent with the federal,
this Section
has been split into subsections specifying the language for each
program.
Section 702.150
The final sentence of paragraph
(b)
applies only
to
RCRA
permits
(40 CFR 144.51(j) and 270.30(j).).
It has therefore been
stricken from Part 702.
The identical RCRA—specific language
is
found
in existing Section 703.243, which
is not affected by this
proposal. (PC
3)
Section 702.152
This Section
is drawn from 40 CFR 144.51(e).
Paragraphs
(e)
and
(f)
contain RCRA—specific material dealing with compliance
schedules and twenty—four hour reporting.
The permittee
is
allowed 14 days for RCRA progress reports and 30 days for UIC
reports.
The 14—day time has been deleted from paragraph
(e)
and
a reference added
to Section 702.162, which specifies
the correct
times
for both programs.
Paragraph
(f) contains RCRA—specific provisions relating
to
24—hour reporting.
The paragraph has been replaced with
a
reference
to Sections
703.245 and 704.181(d), which
are discussed
70-321
—12—
below.
Material
which
is
in common between RCRA and UIC has been
repeated in Parts
703 and
704
to make future comparison easier.
Section 702.160
Paragraph
(a)
lists Sections under which
the Agency will
establish conditions on a case—by—case basis.
40 CFR 144.52(a)
and 270.32(a) each list the equivalents of Section 702.150 and
702.163,
in
addition
to those presently listed,
as applicable
to
the
IJIC
and RCRA programs.
The Board will make this Section
equivalent.
Section 702.182
The UIC and
RCRA
provisions differ
in that automatic
transfer
of UIC permits
is allowed under certain conditions
(40
CFR 144.38 and 270.40).
This Section appears
to adequately
convey the
federal rules
in
a combined format.
The Board
is
required
to adopt
the automatic transfer provisions for UIC.
(PC
5, paragraph 3(b)).
This applies only
to wells which do not
inject hazardous waste:
Class III and V wells.
(PC 5, paragraph
3(c)).
As
it presently exists, Section 702.182 does not allow for
“revocation and reissuance”
of permits as
a method of
modification.
This was discussed
in correction with Section
7021184
in
the Board’s Opinion adopting the Phase
II
RCRA
rules
(R82—19, July 26, 1983,
53 PCB 155).
The problem arises because
“revocation” authority lies with the Board under Section 33(b) of
the Act.
However,
the problem is one of semantics rather than
substance, since
the “revocation”
in “revocation and reissuance”
is
an administrative step taken in response to
an application,
rather than a penalty for violation of
the Act.
The Board has
resolved
this
problem
by using “reissue” instead
of “revoke and
reissue”.
This avoids possible confusion with the permit
revocation procedures
of Section 33(b),
and yet allows
for
the
reissuance mechanism.
It
is sufficiently clear that the old
permit ceases
to exist when transfer by reissuance occurs.
(PC
5, paragraph
(3)(a)).
Paragraph
(a)
also differs from 40 CFR 144.38 and 270.40 in
that the Board,
in originally adopting this Section, added a
requirement that the
transferee
of
a permit comply with its
conditions.
The Board has made no change
to this provision.
The Board has amended this Section only to correct the
reference
to the federal UIC and RCRA provisions.
Section 702.184
(not amended)
Section 702.184
contains provisions involving
reissuance of
permits which are similar
to
those discussed above
in connection
with Section 702.182
(PC 5, paragraph (3)(a).)
This Section
is
proposed for amendment in R86—l, but not
in this docket.
The
70-322
—13—
Board will address the Agency’s comments on this Section
in
correction with R86.1
Section 703.245
This
is
the only RCRA—only provision which
the Board will
modify
in this Docket.
The Board has moved RCRA—specific
provisions from Section 702.152.
Related UIC—specific provisions
have been moved to Section 704.181.
Section 704.101
(not amended)
The introductory material
to 40 CFR 144.1 was amended at
49
Fed.
Reg.
20181.
In that these amendments relate only
to the
USEPA—administered programs,
the Board proposed no changes.
Section 704.124
This Section
is drawn from 40 CFR 144.13, which was amended
at
49 Fed. Reg.
20181.
The federal amendment prohibits Class IV
wells except
under certain limited situations discussed below.
Class IV wells are those used
to inject hazardous or radioactive
waste
into or
above
an Underground Source of Drinking Water
(USDW).
As originally adopted, Section 704.124 prohibited certain
Class IV well activities as of February 1,
1984,
the date of
Illinois
RCRA authorization.
Section 704.124(a)(4) prohibited
the operation of any Class IV well injecting hazardous waste
directly into
a USDW after August
1, 1984.
The federal amendment makes
the prohibitions more specific
and more inclusive.
The federal amendment did
the following
things:
1.
It prohibited “maintenance” of
a well,
as well
as
construction and operation.
2.
It specified that closure
of the well was
required, not
just cessation of operation.
3.
It extended the prohibition
to Class IV wells injecting
above (but not into)
a USDW.
The federal amendment immediately prohibited
the operation
or maintenance of Class IV wells placed into operation after July
18, 1980, but delayed the prohibition of operation
or maintenance
of older wells
until six months after UIC program approval in
a
State.
This date,
August 1,
1984 for Illinois,
has already
passed.
To have maintained complete consistency with the federal
rules,
Illinois
should have modified this provision prior
to that
date.
The fundamental question is whether
to adopt this
amendment retroactive
to August
1,
1984.
70.323
—14
—
It
is important
to note that very few Class IV wells
exist
nationwide
(49 Fed. Reg.
20141).
Although there may be some
Class IV wells
in Illinois,
this Section
is not prohibiting
a
common practice.
Furthermore,
the construction of new Class IV
wells
or operation of those which may exist
is already
prohibited.
The chance that there happens
to be
a Class
IV well
which.ceased operating but continued maintenance
is
low.
Also,
the extension of the ban
to wells which inject above, but not
into,
USDW’s
is irrelevant
in Illinois unless there are areas
in
which
it would
be possible
to so inject.
This too
is unlikely,
since there are freshwater aquifers near the surface
in all areas
of the State.
A retroactive rule would be extremely complex, with
different prohibitions for time spans between promulgation of
USEPA’s original rules, adoption of
the Board rules, UIC
authorization,
the May, 1984 amendments, the August, 1984 date
and
the effective date of
these amendments~
Such complexity
would invite loopholes.
Also,
the retroactive nature of the rule
would
invite court challenges.
The Board has therefore not
written
a complex,
retroactive rule, which may prove
unenforceable,
to regulate wells which may not even exist
in
the
State.
The Board has instead adopted a simple rule which
prohibits the construction, operation and maintenance
of any
Class
IV wells as
of the effective date of the rule.
Any Class
IV wells operating prior
to that date would be subject
to
enforcement under
the terms of then existing Section 704.124, and
would
be
required to close immediately under
the new Section.
Paragraph
(c)
repeats
a new exception drawn from the
amendments at 49 Fed.
Reg.
20181.
Class IV wells approved as
part
of
a site clean—up under CERCLA or RCRA are not subject
to
the prohibition.
Many clean—ups involve pumping contaminated
groundwater, treating
it and
reinjecting
it into the same
formation.
Although contaminant levels may be reduced,
reinjected fluids may still
be “hazardous waste”.
Paragraph
(d) contains clarification
as to what constitutes
a Class IV well.
In particular,
wells which inject hazardous
waste
into “exempted aquifers”,
or where there
is
no USDW,
are
Class
I wells,
which are subject
to the regulatory program, but
are not prohibited.
Section 704.141
This Section authorizes Class
I
and III wells
by rule.
The
existing wording
is drawn from the preamble
to 40 CFR 144.21.
It
has been edited
to make it read exactly like Section 144.21,
except
for the exclusion of Class
II wells.
The time limitations
in the deleted material are redundant,
since
these are dealt with
at length
in Section 704.143.
Paragraph
(b) has been added.
This
is
an affirmative
statement that usual
operations may continue
in Class
III wells
70-324
—15—
authorized by
rule.
It
is drawn from 40 CFR 144.21(b).
It was
never incorporated into the Illinois UIC rules, possibly because
of
an oversight.
The amendments
to
40 CFR 144.21
at 49
Fed.
Reg.
20181
do not
affect
the provisions reflected
in Section 704.141.
Section 704.143
This Section
is drawn from 40 CFR 144.21(a), which was
amendea at 49 Fed. Reg.
20181.
These amendments specify time
limitations
for
the continuation of authorizations and for filing
of applications.
The Illinois rule is within the range specified
in
the
rule for State programs,
so that the Board proposed no
changes.
Existing Sections 704.143(c)
and
(d) reference provisions
which result
in loss of authorization by rule.
There provisions
exist
(or existed)
in the federal rules,
but were not referenced
in 40 CFR 144.21(a).
The provisions concerning expiration of
authorization of Class
IV wells
are now moot and have been
repealed.
Since
this completely eliminates paragraph (d), old
paragraph
(e)
has been relettered.
Actual dates have been
inserted into the rule.
Section 704.144
The existing rule listed
the provisions of
the permit rules
which wells authorized
by rule had to follow.
This has been
replaced by
a complete set of
rules to
be followed by authorized
wells.
(Section 704.149,
40 CFR 144.28,
as amended at 49 Fed.
Reg.
20181).
Section 704.145
This Section
is drawn from 40 CFR 144.23, which was amended
at 49
Fed.
Reg.
20181.
The USEPA amendments to paragraph
(a)
are
irrelevant since
the Board
is prohibiting all Class
IV wells
immediately.
The Board has amended paragraph
(a)
to state
this.
Paragraph
(b)
is “USEPA specific” language which the Board
has adopted.
Actual closure of Class IV wells,
as opposed
to
mere cessation of operation,
is
a major portion of
the USEPA
proposal, which appears
to be essential to protection of USDW’s
Without this provision,
the Board rules would seem to lack
a
major program element which would
be necessary for
a complete,
rational program.
Section 704.147
This Section
is drawn from 40 CFR 144.25, which
as amended
at 49 Fed.
Reg.
20182.
The federal amendments have been
incorporated into this Section nearly verbatim.
70-325
—16—
Paragraph
(b) specifies the form of the notice which must be
given an operator before
a permit
is required.
The equivalent
federal Section and amendments are optional “USEPA specific”
provisions which the Board has adopted.
Section 704.148
This Section
is drawn from 40 CFR 144.26, which was amended
at 49 Fed. Reg. 20182.
This requires additional inventory
information of certain types of wells which
are authorized
by
rule.
This is an optional “USEPA specific” provision which the
Board has
adopted.
40
CFR
144.26(d) has been amended
to change
the deadlines
for submitting
the inventory information.
The existing Board
rule required information
to be submitted within one year after
authorization by
rule.
The federal amendment on the other hand
specifies one year after approval
of the State program, which
is
already passed.
The entire Section would be moot
if the time for
submission of
inventory information had already passed.
The
Agency noted
that this probably represents an error
in the
federal
rule, since
it would not result
in inventory information
from future new Class V wells, which will
be authorized by rule
for
an indefinite period
of
time.
Paragraph
(b)
is mainly
concerned with these Class V wells.
Accordingly,
the Board will
continue
to key the inventory requirement
to the date of
authorization by rule rather than the date of
approval of the
program.
The Board has added
to this Section a note referencing
the
February
1,
1985,
date for inventory
information from existing
wells,
and explaining that future
inventory information
is
expected only from Class V wells.
(PC
5, paragraph
5).
The provision
in the federal
rule concerning
the deadline
for Class IV wells
is unnecessary, since existing Section 704.148
required
inventory information from these wells by February
1,
1985,
and Section 704.124 prohibited construction of new Class IV
wells.
Section 704.149
This
is
a new Section drawn from 40 CFR 144.27, which was
added
at 49 Fed.
Reg.
20182.
It allows the Agency
to require
additional information
from any wells which are authorized
by
rule,
and which
is necessary for the Agency
to determine whether
the well
is endangering
a USDW.
The Board has adopted
this
optional “USEPA specific” provision.
Section 704.150
This
is
a new Section drawn for 40 CFR 144.28, which was
added at 49 Fed.
Reg.
20182.
This contains a set of detailed
requirements which wells authorized by rule must comply with.
This replaces Section 704.144
(40 CFR 144.21(c)).
The old rule
70.326
—17—
referenced standard permit conditions which were applicable to
wells authorized by rule.
40 CFR 144.28 includes several optional “USEPA specific”
provisions.
The Board has generally adopted these, making such
changes
as are necessary
to accommodate Illinois law.
Paragraph (c)(l) provides that “temporary intermittent
cessation”
of injection
is not “abandonment” of a well, which
would trigger the application of financial assurance for plugging
and abandonment.
This
is mainly an issue for Class
II wells
which may temporarily shut down because of low petroleum
prices.
These are regulated by the Department
of Mines
and
Minerals rather than the Board.
However,
it may also arise with
respect to other wells,
including those used to
inject on a
stand—by basis
in the event of failure of another well or
treatment method.
Section 704.150(c)(2)(D)
requires the operator
to plug
and abandon after
a cessation of operations of two years
or more,
unless the operator makes
a special showing
to the
Agency.
(PC 5,
paragraph 6).
40 CFR 144..28(c)(2)(iv)(B)
allows USEPA to
“waive,”
for
temporarily abandoned wells, technical requirements applicable
to
active wells.
Because there are no standards which the Agency
could use
to decide whether
to grant such waivers,
the Board will
require operators to obtain variances
in such situations.
(PC
5,
paragraph 7(b)).
The Agency questions whether operators could avoid the
expense
of plugging and abandonment by injecting an
inconsequential amount
of waste every
two years.
(PC 5,
paragraph 7(c)).
Class
I hazardous waste injection wells must
now have permit applications on file.
The Agency can terminate
the authorization by rule at any time by acting on the
application.
Furthermore, abandonment
is
a question
of fact
which depends on the operators intent as manifested by the
circumstances.
The Agency could show abandonment without regard
to the two—year presumption of abandonment.
Paragraph
(c)(2)
specifies details
of the plugging and
abandonment plan which must be submitted for
a Class
I or
III
well authorized by rule.
These have been adopted more
or less
verbatim.
The Agency will be allowed to promulgate forms
based
on this Section and Part 730.
Paragraph
(d) specifies the form of financial assurance
required for these wells.
40 CFR 144.28(d)(1)
allows
the
Director of the State program to prescribe
the form of financial
assurance.
Section 13(c) of the Act confers such authority on
the Board rather than the Agency.
Therefore,
the Board has
modified the provision to require financial assurance acceptable
to
the Agency,
and has adopted provisions which specify
the
form
of financial assurance
to
a greater degree
than the minimal State
70.327
—18--
program.
The Board will adopt detailed rules
in Subpart G on
the
form of financial assurance for hazardous waste wells.
40 CFR 144.28(e) specifies casing and cementing requirements
for enhanced recovery and hydrocarbon storage wells.
These are
Class
II wells subject
to regulation by the Department of Mines
and Minerals rather than the Board.
(Section 730.105).
Paragraph
(e) specifies operating requirements for Class
I
and III wells authorized by rule.
40 CFR 144.28(f)(2) contains
an optional “USEPA specific” provision:
that the annulus
of
Class
I wells completed with tubing and packer be filled with a
non—corrosive fluid which
is to
be maintained at
a positive
pressure,
or,
for other completion methods,
that the operator
insure that the alternative completion method will reliably
provide
a comparable level of protection of USDW.
States need
only require
a demonstration that an alternative completion
method provides
a comparable level
of protection
to USDW.
The
Board
has adopted the “USEPA specific”
requirement.
Paragraph
(e) was the subject of the public comment
from LTV
on which
the Board asked
for additional comment.
(PC 4,
6
and
7).
After reviewing these comments,
the Board has determined
that
the problem stems from the
inadvertent omission of
the
alternative
showing from the “USEPA specific”
language in
the
proposal.
With
this language corrected,
the rule no longer
contains an absolute requirement of completion with
a packer.
Paragraph
(f) specifies monitoring requirements.
The Board
has included a reference to optional “USEPA specific” analytical
methods taken from 40 CFR 144.28(g).
Paragraph
(g) specifies
a
three—year period for
retention of
records.
40 CFR 144.28(i)(2)
contains alternative provisions for
State and
tJSEPA
administered programs.
It
is
sufficient
if the
Agency has authority to extend the retention period.
However,
in
USEPA—administered programs the operator must deliver the records
to USEPA unless
it has written approval
to discard them.
The
Board
has adopted the optional
“USEPA
specific” language.
Paragraph~(i)
requires notice of abandonment.
40 CFR
144.28(j)(1) allows States to specify
a time prior
to abandonment
for notice
to the State; while paragraph
(j)(2) specifies
a 45
day period for USEPA—administered programs.
As required by
Section 13(c)
of the Act,
the Board specifies such details of the
Illinois program.
The Board has specified 45 days,
consistent
with the “USEPA specific” requirement.
Paragraphs
(j)
and
(k)
require plugging and abandonment
reports and change of ownership notification.
The Board adopted
these optional “USEPA specific” program elements.
(40 CFR
144.28(k)
and
(1))
70-328
—19—
Paragraph
(1) references additional requirements for Class
I
hazardous waste wells.
The Board has adopted an optional “USEPA
specific” requirement of decontamination of well equipment.
(40
CFR 144.28
(m))
Section 704.161
This Section
is drawn from 40 CFR 144.31.
It needs
to be
read in conjunction with Section 702.123, which contains
application requirements
in common between the RCRA and UIC
programs.
Section 704.161(a) has been amended
to make it read
more like existing federal
language.
As noted
above
in connection with Section 704.148, Class V
wells will
be authorized by rule for
an indefinite period of time
pursuant to Section 704.146.
As worded, Section 704.161(b)
seems
to require Class V well operators
to apply for permits even
though they are authorized by
rule and there are no technical
standards
for the Agency
to use in reviewing
the applications.
The USEPA
rule
includes a clause in the second sentence of
Section 144.31(a) which requires persons authorized by rule to
apply for permits “unless the authorization was for the
life of
the well
or project”.
This was omitted from Section 704.161(a)
because
it seemed
to be directed at Class
II wells, which are
regulated by the Department of Mines
and Minerals, and which may
be authorized
“for
the life of
the well or project.”
(Section
144.22).
However,
it appears that this clause was also directed
at Class V wells,
although these are authorized only until future
rules become available.
The Board has therefore added a clause
to Section 704.161(a) providing that persons authorized by rule
must apply
for permits
“unless the authorization
is
for
a Class V
well under Section 704.146.”
(PC 5,
paragraph 5)
Section 704.l6l(b)(l)
is drawn from 40 CFR 144.3l(c)(1),
which was amended
at 49 Fed.
Reg.
20185
to set an upper
limit
for
receipt of permit applications for existing wells.
These
amendments do not need
to be incorporated into Board
rules, since
the Board
set tighter
limits
in originally adopting the UIC
program.
The actual dates have been inserted into the rule,
replacing language which depended on
the date of program
approval.
The last date for applications was February 1,
1986.
(PC 5,
paragraph 8).
Section 704.161(c)
is drawn from 40 CFR 144.31(g).
As
worded
it is misleading when placed into the Illinois rule, since
the contents of the application specified in
40 CFR 144.31(c)
are
located in Part 702.
The Board has added a reference to Section
702.123.
The Agency may waive this aspect
of the application
requirement
if the site is located
in a populous area such that
listing
all owners would
be impracticable.
(PC 5, paragraph 9).
40 CFR 144.3l(e)(9) adds
a UIC—specific information
requirement
to this list, which
is otherwise contained
in Section
702.123.
The Board has added this as paragraph
(d).
70.329
—20—
The additional information requirement
is a list of property
owners within one—fourth
of a mile
of the well.
It
is a “USEPA
specific provision which
the Board has adopted.
Section 704.163
This Section
is drawn from 40 CFR 144.34, which was amended
at 49 Fed. Reg.
20185.
Paragraph
(a) was amended
to allow
temporary emergency permits
to override authorization by rule or
regular permits.
Section 704.164
This Section has been added
to make
the signatory
requirement of Section 702.126(a)(1) consistent with the UIC—
specific requirements of 40 CFR 144.32(a)(1).
Section 704.181
This Section modifies
Sections 702.140 et
seq.
to add UIC—
specific provisions so as
to achieve consistency with
40 CFR
144.51.
The Board
has added
notes referencing
each paragraph
since these provisions are so scattered.
Sections 704.181(b),
and 702.150(b),
are drawn
in part
from
40 CFR l44.Sl(j)(2)(ii), which was amended at
49 Fed.
Reg.
20185.
The Board
has incorporated the “USEPA specific” language
which requires the operator
to retain records after
the retention
period unless he delivers them
to the Agency or obtains written
approval
to discard them.
This is similar
to Section 704.150(i),
which
is applicable
to wells authorized by rule.
Paragraph
(d)
has been amended
to transfer UIC—specific
requirements from Section 702.152
(f).
This
is discussed in
connection with that Section.
Paragraphs
(f) and
(g)
are drawn from 40 CFR 144.51(o) and
(p), which were added
at 49 Fed. Reg.
20185.
The Board has
adopted these
“USEPA specific” provisions
in UIC permits.
Under
paragraph
(f) permittees will be required
to submit
a
report
after plugging
a well.
Under paragraph
(g)
the Agency can
establish
a schedule for mechanical integrity demonstrations.
Section 704.187
This Section
is drawn from
40 CFR 144.52(a)(5), which was
amended at
49 Fed. Reg.
20185.
These “USEPA specific” amendments
specify certain analytical methods and allow
the Agency
to
specify other methods in
the permit.
Section 704.188
This Section
is
drawn from 40
CFR 144.52(a)(6), which was
amended at 49 Fed. Reg.
20185.
The old plugging and abandonment
70-330
—21—
requirements applicable to permitted wells have been replaced
with
a requirement
that the operator implement an abandonment
plan within two years after cessation of operations unless
approval
is obtained from the Agency.
The general
rules
for
active wells now apply
to inactive wells prior
to plugging and
abandonment.
Section 704.189
This Section
is drawn from 40 CFR l44.52(a)(7), which was
amended at
49 Fed.
Reg.
20185.
The federal amendment appears
to
set
up two different financial responsibility requirements,
depending on whether
or not the well injects hazardous waste.
The Board
has split Section 704.189 into two paragraphs
to make
it clear that the general material
in Section 704.189 does not
supersede the specific financial assurance requirements for
hazardous waste wells, which will
be discussed below.
Paragraph
(a) has been amended
to state
the Agency’s
authority
to require periodic updating of
cost estimates and
financial assurance for non—hazardous waste wells.
This
“USEPA
specific” language is drawn from 49 Fed.
Reg. 20185.
Section 704.201
This Section
is drawn from 40 CFR 144.14(a).
It has been
amended
to improve consistency.
Section 704.202
This Section has been amended
to correctly state
the date on
which applications were required from wells injecting waste from
off—site.
It
is drawn from 40 CFR 144.14(b).
Section 704.203
This Section has been amended
to improve consistency with
40
CFR 144.14(c).
This Section states
the requirements applicable
to off—site wells
which were required to file permit applications
pursuant
to Section 704.202.
(PC 5)
Section 704.210
This Subpart establishes requirements for financial
assurance for plugging and abandonment of Class
I
hazardous waste
injection wells.
Other wells
are subject
to less specific
financial assurance requirements under Section 704.189.
The
Subpart
is drawn from 40 CFR 144.60 et seq., which was added at
49 Fed. Reg.
20189.
Section 704.211
The Board has added
“plan”
as an alternative phrase for
“plugging and abandonment plan”,
and “current cost estimate” as
70-331
—22—
an alternative
for
“current plugging cost estimate”1
which
in
turn the Board has corrected to read “current plugging and
abandonment and cost estimate,”
the term which
is consistently
used
in
the federal rule except in this definition.
The Board
has edited
the following
text to use these stated alternatives
wherever clarity is maintained.
This has resulted in a
substantial shortening
of
the text since these terms
are used
frequently.
Section 704.212
This requires the operator to prepare
a cost estimate for
plugging and abandoning
the well,
and
to update
the cost estimate
each
year, producing
the “current cost estimate”.
The cost
estimate
is based on
the plugging and abandonment plan required
under Section 704.181(f).
Section 704.213
Because
of
its
length
and codification requirements the
Board has broken
40 CFR 144.63 into several sections.
This
Section includes the preamble to Section 144.63.
It
is necessary
to list and reference the ensuing Sections
to preserve the
meaning of
the federal Section.
This Section also serves
as
a definition of
“financial
assurance”.
Use of this defined term allows the Board to avoid
lengthy repeated descriptions
in the ensuing rules.
These
descriptions would be
longer even than the descriptions
in the
federal rules because
of the break—up of Section 704.213.
Section 704.214
This Section
is drawn from 40 CFR 144.63(a).
It allows
the
operator
to provide financial assurance through a trust fund with
the Agency as beneficiary.
It also allows the creation of
a
standby trust fund
to receive any proceeds pursuant
to the
financial assurance mechanisms
in the ensuing Sections.
In R84—22,
the Board determined that standby trust funds are
costly,
and unnecessary under Illinois
law.
(R84—22C, Opinion
and Order, October 10, 1985).
However,
since this
is a Section
13(c) rulemaking,
the Board
feels constrained
to leave these
provisionS
in
the rules.
The funded trust fund
is expected
to pay the plugging and
abandonment cost
in the absence
of any default by the operator.
It
is
a Savings account over which the Agency has control.
In paragraph
(k)(2)
the Board has made
a final simplifying
edit which
is followed
in the ensuing Sections.
“Releases the
owner
or
operator
from
the requirements of this section in
accordance with Section 144.63(1)”
has
been replaced with
“releases the owner
or operator
in accordance with Section
70-332
—23—
704.222.”
The quoted Section adequately defines what
is
“released” without the excess verbiage,
which would
be difficult
to translate into the Board
rules because of the break—up of
“this Section”.
Section 704.212(b)
requires the operator
to update
the cost
estimate annually for
inflation.
40 CFR 144.70(a)(l) specifies
the form of the trust agreement.
Section
15 requires the trustee
to give
the Agency notice on non—payment during the pay—in
period.
Section 10 requires the trustee to give the Agency an
annual evaluation of the trust,
both during and after
the pay—in
period.
It
is up to
the Agency to review the value of the trust
to discern whether
it appears sufficient
to provide for plugging
and abandonment
at current costs.
If the value appears to
be
inadequate,
the Agency should inspect the cost estimate, which
must
be kept at the facility.
(PC 5, paragraph
11)
Section 704.215
This Section, which
is drawn from 40 CFR 144.63(b), allows
the operator
to meet the financial assurance requirement with
a
forfeiture bond,
payable into
a standby trust
fund if the
operator fails
to plug and abandon the well when required
to do
so.
In this Subpart,
the Board has generally replaced “Regional
Administrator” with “Agency” except in
a few instances,
including
Section 704.215(d)(2).
Only the Board has authority
to “order”
plugging and abandonment.
Section 704.216
This allows
the operator to submit
a performance bond as
financial assurance.
This
is identical to Section 704.215,
except that the surety has the option of performing
the plugging
and abandonment instead of funding the standby trust
in the event
of
a default.
Section
704.216(e)
Note that this mechanism
cannot
be used in combinations under Section 704.220.
Section 704.217
This Section
is drawn from 40 CFR 144.63(d).
It allows
the
operator
to provide financial assurance by delivering
a letter of
credit from
a financial institution to the Agency.
In the event
of
a default,
the Agency presents the financial institution with
a draft payable
to the standby trust fund.
The financial
institution then must attempt
to collect the amount paid from the
operator
as
a
loan.
Section 704.218
This Section
is drawn from 40 CFR 144.63(e).
It allows the
operator
to provide financial assurance through plugging and
abandonment
insurance.
70-333
—24—
Like the trust
fund,
the plugging and abandonment
insurance
pays
the cost of plugging and abandoning
the well regardless of
any default by the operator.
In this respect,
it
is comparable
to a savings
account or life insurance rather than liability
insurance.
The amount of
the
required insurance
is based on an
engineering plan for plugging and abandoning
the well, rather
than estimated costs of unexpected contingencies.
There
is no
provision for payment to third parties who may be injured.
Section 704.219
This Section
is drawn front 40 CFR 144.63(f).
It allows an
operator
to provide financial assurance by meeting
a financial
ratio
test.
The test is
identical to the RCRA test
in Parts 724
and 725.
The financial test cannot
be used in combinations
pursuant
to Section 704.220.
Section 704.220
This
is drawn from 40 CFR 144.63(g).
It allows an operator
to use
a combination of mechanisms
to provide financial assurance
in an amount equal
to the cost estimate.
The USEPA rule uses the
phrase “adjusted plugging and abandonment cost”, which has been
changed
to the defined
term “current cost estimate”.
This
corrects
an apparent error
in the USEPA rule.
Section 704.221
This
is drawn from 40 CFR 144.63(h).
It allows
the operator
to lump several wells into a single cost estimate for providing
financial assurance.
USEPA allows national lumping.
This could
cause problems
in the Illinois context
if
the Agency were to have
to go into the courts
of another State to collect financial
assurance, possibly governed by the laws of yet another State.
This
could cause more
of
a problem than under
RCRA
(Section
724.243(h)), since USEPA demands
less consistency among the
States with regard
to UIC regulations.
Keeping
in mind that
adoption of
these detailed rules
is optional in the first place,
the Board
will limit lumping
to wells located
in Illinois.
Section 704.222
This Section
is drawn from 40 CFR 144.63(i).
It requires
the Agency
to release
the operator from the financial assurance
requirement
for
a well within 60 days
after receiving
certification that plugging and abandonment has been accomplished
in accordance with the plan,
unless the Agency has reason
to
believe
the contrary.
Section 704.230
This Section is drawn from 40 CFR 144.64.
Paragraph
(a)
requires the operator, and any corporate guarantor,
to notify the
Agency within ten days after bankruptcy of the operator.
Paragraph
(b)
requires the operator
to provide substitute
70-334
—25--
financial assurance within 60 days after
any bankruptcy of
a
financial
institution which
issued financial assurance
to the
operator.
The
final sentence of
40 CFR 144.64(b) requires the operator
to establish “other financial assurance or liability coverage
within 60 days”
after bankruptcy of
a financial institution.
The
reference
to liability coverage
is probably an error
in the USEPA
rule, which
may
have been copied from 40 CFR 264.148.
The Board
has deleted this since there
is no liability insurance
requirement
for UIC.
Section 704.240
The Agency has already promulgated financial assurance forms
which closely track
those specified in 40 CFR 144.70.
The Agency
apparently requires operators to use these
forms pursuant
to the
general
financial assurance requirement
of Section 704.189.
The
Board obtained
a
set of
these forms
As noted above,
they were
designated PC
2.
Rather
than set the forms out
in detail
in the rules,
the
Board will allow the Agency to promulgate forms
based on
40 CFR
144.70,
and
to require the use of these forms.
Because these amendments potentially change
the
RCRA
program,
the Board will wait 30 days before filing
the adopted
rules.
The Board will entertain motions for reconsideration
during
this time period.
This Opinion supports
the Board’s Final Order
of this same
day.
IT IS SO ORDERED.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certif
that the above Opinion was adopted on
the
~
day
of
_____________,
1986, by
a vote of
7—c
/~
~
Dorothy M
Gun
,
Clerk
Illinois Pollution Control Board
70-335

Back to top