47-99

ILLINOIS POLLUTION CONTROL BOARD

Nay 13,

1982

In the matter

of:

R81~32

UNDERGROUND INJECTION CONTROL

 (UIC)

)

FINAL ORDER.

 ADOPTED RULES

OPINION OF THE BOARD

(by

D.

Anderson):

Public Act 82~380

was enacted in

September,

 1981.

As

amended, Sections

 13 and

22.4 of

the

Environmental Protection

Act

 (Act)

 require the Board to

 adopt. regulations which are

identical in substance

to federal

regulations pursuant to

the Resource Conservation and Recovery Act

 (RCRA or RCRA Act)

and the Safe Drinking

Water Act

 (SDWA)

in

order for Illinois

to obtain primacy from

United States

Environmental Protection

Agency

 (USEPA)

 for the

RCRA

and Underground Injection Control

(UIC)

 permit programs.

 The Phase

 I RCRA regulations were

adopted by the Board on

September

16,

1981

and amended on

February

4,

1982

and

March

19,

1982

 (R81—22,

6

 Ill.

 Reg.

 4828,

April 23,

 1982).

On December 23,

1981

the Illinois

Environmental Protection

Agency

 (Agency)

 proposed that the Board adopt regulations

establishing an

underground

injection

 control program.

The

proposal

included

operating

standards

for

wells

and

UIC

permit

program.

The

proposal

was

similar

CFR

122,

124

and

146.

P.A.

82-380

allows

the

Board

adopt

 ~‘identicalin

substance” regulations without complying with hearing and

economic impact study provisions of the Act or

the

first

notice provisions of Section

 5 of

the

Administrative Procedure

Act

 (APA).

 The Board nevertheless published the Agency proposal

in the Illinois Register and solicited comments for 45 days

(Order of January 7,

 1982;

 6 Ill.

 Reg,

 1005,

 1011,

 January 29,

1982)

The Board received three comments.

 These were from the

Illinois Nanufacturers~Association,

 a joint comment from five

steel companies

 (Granite City Steel Division of National Steel

Corporation, Interlake,

 Inc., Northwestern Steel and Wire

Company, Republic Steel Corporation and United States Steel

Corporation)

 and the Illinois State Library.

 These are dis-

cussed below.

47-95

—2—

CODIFICATION REQUIREMENTS

The

Agency proposal included three Parts:

 702,

 705 and

730, which corresponded to 40 CFR 122, 124

and

146.

Part 702 included

three

Subparts, the first dealing with

rules

 in common for RCRA and UIC permits, the second and third

with special rules for

RCRA and

UIC permits, respectively.

Federal material dealing with NPDES permits was eliminated

from the federal rules.

As proposed Part 702 was 76 pages long.

 With addition

of the RCRA permit rules to Subpart

 B, Part 702 would be about

140 pages long.

 This would be grossly in excess of the 50-page

limit on Parts.

 Also, many sections were over the 3—page

limit on sections

 (1 Iii,

 Adrrtin, Code

 120.700).

The Board has split proposed Part 702 into three Parts,

702, 703 and 704, which correspond with the proposed Subparts.

The larger sections have been split up by making sections of

the first level of subdivision.

 Subparts have been added to

indicate the major features of each Part.

Proposed Part 705 has been split into six subparts, with

the larger sections broken up as

 in Part 702.

 Part 730 has

been left in the form proposed.

 The one-to—one relationship

with 40 CFR

 146 will allow easier modification to reflect

future federal amendments.

PART 700

 OUTLINE OF WASTE REGULATIONS

Section 700.103

 Organization

Part 700 was adopted with the Phase

I

 RCRP~.regulations

(R81-21).

 Section 700.103 contains the intended ultimate

organization of the waste regulations.

 This has been amended

to reflect the UIC proposal, as well as developments in the

other waste proposals

 (R80-20,

 R8l-l8, R81—25 and R8l-31).

Section 700.104

 Intent and Purpose

This has been amended to add UIC provisions.

 Many of the

changes proposed by the Agency havealready been adopted by

the Board with the February 4,

 1982 amendments to the RCRA

rules.

Section 700.106

 Effective Dates

The UIC permit rules will become effective on the date

of USEPA approval of the program.

 The proposed rule establish-

ing an effective date for the RCRA program will not be adopted

at this time.

47-96

—3—

CORRESPONDING FEDERAL REGULATIONS

Parts

 702, 703 and 704 correspond to 40 CFR 122, Part

705

to 40 CFR 124 and Part 730 to 40 CFR 146.

 The text adopted

is the 1981 Code of Federal Regulations with the following

amendments:

46 FR 35,249

 (July

7,

 1981)

46 FR 40,897

 (August 13,

 1981)

46 FR 51,410

 (October 20,

 1981)

46 FR 55,112

 (November 6,

 1981)

46 FR 57,284

 (November 23,

 1981)

PART 702

 RCRA

AND

UIC PERMITS

Section 702.101

 Applicability

Section 702.101 has been rewritten to reflect the reor-

ganization and codification of the Agency’s proposal.

As proposed, Section 702.101(c) (2)

 stated that the opera-

ting requirements

 of Parts

 720 through 726 would be used to

determine “what types of information must be submitted by

a

permit applicant”

 as well as requirements to be placed in

permits.

 The quoted language is not found in 40 CFR 122.1(c) (2)

and will be stricken.

 However, the Board intends that the

Agency promulgate permit application forms.

 Clearly these

should reflect the requirements of Parts

 720 through 730.

 Fur-

thermore, it is the applicant’s duty to demonstrate compliance

with these rules.

 The Agency may request additional information

if the application fails to demonstrate compliance with all

 applicable provisions.

Section 702.103

 Confidentiality of Information

Confidentiality will be handled in accordance with Illinois

law (Sections

7

and

7.1 of the Act, Procedural Rule 107).

A

proposal for additional procedural rules is pending (R8l-30).

The steel companies objected to proposed Section 702.119(c).

They indicated that USEPA has agreed to delete the corresponding

40 CFR 122.19(d).

 This proved a special procedure for substanti-

ation of RCRA confidentiality claims.

 This will be stricken

from the proposal because it is inconsistent with Section

 7 of

the Act and Procedural Rule 107.

Section 702.104

 References

Section 702.104 gives an address of a USEPA office which

has been closed.

 This has been replaced with the Washington

address and the hazardous waste hotline number.

47-97

—4—

The

publication

referenced

currently

unavailable

from

USEPA.

 The hotline

indicates

taking

orders

for

future

publication.

copy

will

be

placed

the

Board

office.

Section 702.105

 Rulemaking

Section 704.123(b) provides for identification of “exempted

aquifers” by the Board.

 This will be by rulemaking.

 Section

702.105 establishes procedures leading into Part II of the

Procedural Rules.

 These will be adopted pursuant to Section

 13(d)

of the Act.

The steel companies noted that Sections 13(c)

 and 22.4(a)

of the Act appear to allow continued adoption of new USEPA rules

by the abbreviated method.

 The Board has added to Section

702.105(a)

 a pass through provision similar to Section 720.120.

Section 702.106

 Agency Criteria

The Board has added a section governing Agency criteria.

The Agency proposal contained references to Agency identifica-

tion of USDW’s and approval of alternative equipment in wells

Sections

 704.123 and 730.112(c).

 Section 702.106 establishes

procedures to be followed.

Most Board chapters contain criteria provisions.

 These

have produced problems in the past in that they have been con-

strued as a delegation of the Board’s rulemaking authority.

Section 702.106 addresses problems which have arisen in these

other contexts.

 For related discussion, see

R76—20,

 R77-1O,

39 PCB 196, July 24, 1980.

The criteria are intended to be an adjunct to the Agency’s

permit issuance authority.

 For example, in permit review the

Agency may approve certain equipment or require the use of

certain equipment in a given facility.

 If the Agency determines

that it will routinely approve or require certain equipment in

permits,

 or reject certain equipment,

 it has made a “rule”

within the meaning of the Administrative Procedure Act

 (APA).

This rule must be published in the Illinois Register.

The criteria are useful in that they allow the Agency to

indicate to the public in advance what it expects in a permit

application and what it will require of permittees.

 This should

reduce

the

cost of the application process,

 and make for more

uniform interpretation of the law by the Agency.

These

“rules”

differ

from

Board

rules

several

respects:

violation of criteria cannot form the basis of an enforcement

action; variances from criteria are unnecessary; violation of

criteria is not grounds for permit denial;

and

any person can

47-98

—5—

question

 whether

criteria

are

appropriate

the

context

a case.

There is a natural tendency for the Agency to utilize

criteria as

 a substitute for Board rules.

 Accordingly, the

Board has specified that the Agency must put certain material

into any criteria adopted:

 references

provisions

in the Acts and Board rules;

 a statement that the criteria are

not Board rules

and

apply only in permit review;

 and, procedures

which applicants may follow if they wish to deviate from criteria.

Section 702.110

 Definitions

“Disposal”:

 The proposal added to the definition of

disposal the discharge of hazardous waste “into any well”.

This is not in 40 CFR 122.3 and has been deleted from the

proposed rules.

Whereas the scope of the Section 704.121 UIC permit

requirement is fixed by the definition of “Underground Injection”

and “Well Injection”, “Disposal” relates to the RCRA permit

requirement.

 The deleted language would appear to require RCRA

permits for some UIC wells,

 a result which

 is not intended.

Disposal of hazardous waste by underground injection requires

only a UIC permit.

 However, associated above—ground storage and

treatment facilities will require a RCRA permit at some time in

the future

See

 Sections 704.201 and 40 CFR 122.21(d) (1) (i).

“Draft Permit”:

 The Board definition omits the phrase

“notice of intent to terminate” from the definition in 40 CFR

122.3.

 The Board intends to reserve to itself authority to

revoke or terminate permits pursuant to Section 33(b)

 of the

Environmental Protection Act

See

 also Sections 702.161(b)

and

705.128(d).

“Manifest”:

 The Agency proposal defined manifest as

a

document containing the information required by Part 722 and

Chapter 9.

 Commenters objected to this modification of the

federal definitions.

 The language has been changed to:

 “Part

722 or Part 706”, where Part 706 is the intended assignment

for codified Chapter 9.

 The alternative language will allow

use of Chapter 9 manifests in appropriate cases.

“Phase I” and “Phase II”:

 The definitions in the Agency

proposal were taken directly from 40 CFR 122.3.

 These are not

appropriate in the Illinois context.

 Phase

 I will begin with

the effective date of the State interim status standards

 (Part

725, Section 700.106).

 Phase II will commence no earlier than

the effective date of standards in Part 724.

 References to the

federal time frames have also been left in the Illinois defini-

tions.

47-99

—6—

“RCRA Permit”:

 The definition has been changed to corres-

pond with. Section 700.103.

 A RCRA permit is the~permit required

under Section 21(f) (1)

 of the Illinois Act.

“SIC Code”:

 The Board has added a definition of SIC Code.

This is used in Section 702.123.

 The definition will avoid a

lengthy reference in the section.

“Treatment”:

 An apparent typographical error has been

corrected in the last sentence of the Agency’s proposed defini-

tion of “Treatment”.

Section 702.120

 Application for Permit

Persons with UIC permits by rule must submit an applica-

tion when “required by the Agency”.

 Section 704.161 specifies,

for the time to apply, 180 days after notification by the

Agency.

The steel companies noted that the Agency proposal omitted

a provision that persons with RCRA permits by rule need not

apply

40

 CFR 122.4(a).

 This has been added,

 along with a

note that the RCRA permit rules will be added later.

The steel companies also asked that Section 702.123(g)

be

changed to require topographic maps extending only one-fourth

mile beyond the property boundary rather than one mile.

 They

indicate that USEPA has agreed to change 40 CFR 122.4(d) (7)

to

so provide

 (National Resources Defense Council, Inc. v. USEPA,

et al., D.C.

 Cir. No.

 80-1607).

 The Board will wait until the

corresponding federal rule. is actually changed.

Section 702.140

 Conditions Applicable to all Permits

As proposed, Section 702.148 imposed a duty to provide

the Agency with “any information” which it may request to

determine whether cause exists for modifying or revoking the

permit, or to determine compliance.

 The steel companies object

that this is overly broad, and indicate that USEPA has agreed

 to change this.

 The proposal as stated is clearly beyond the

Agency’s authority under Section

 4 of the Illinois Act.

The

permittee will be required to furnish only “relevant” information.

Section 702.149(a)

 appears to allow the Agency to enter at

any

time

to inspect.

 The steel companies indicate that USEPA

has agreed to change this.

The

proposal appears to be’beyond

the Agency’s Section 4 authority.

 The authority to enter will

be limited to “reasonable times”.

47-100

—7—

Section 702.160

 Establishing Permit Conditions

This

 section

and

Sections 39(c)

 and 39(d),

 as amended by

P.A.

 82—380,. authorize the Agency to consider the

RCRA

Act,

SDWA and related federal regulations in writing permit conditions.

The Agency may therefore react to changes in the federal regula-

tions before they are adopted as Board rules.

Section 702.161

 Duration of Permits

As proposed, Section 702.161(b)

 tracked 40 CFR 122.9(c).

This provides for life of the facility permits for Class III

wells,

 subject to review for modification or revocation once

every five years.

 This conflicts with Section 33(b)

 of the

Illinois Act, which gives the Board exclusive authority to

 revoke permits.

 Periodic enforcement actions would clearly be

unworkable and burdensome on the regulated public.

 The Board

has therefore modified Section 702.161(b)

 to provide five year

permits which are renewable by the Agency without reapplication.

If the Agency finds a need for modification or revocation, it

may require a new application.

 This is intended to accomplish

the same result as the federal rule, without conferring revoca-

tion authority on the Agency.

Section 702.181

 Effect of Permit

40 CFR 122.13 provides that the compliance with the RCRA

or UIC permit constitutes compliance with the RCRA Act or SDWA.

As the Board understands federal practice, this includes the

regulations promulgated under those acts.

 The Board equivalents,

Parts

 724, 725 and 730, are promulgated

under

State authority,

rather than the RCRA Act or SDWA.

 The Board has therefore

added an express statement that compliance with the permit is

compliance with Parts 724,

 725 and 730.

 However, the Agency

may specifically incorporate by reference into permits provi-

sions of the operating standards.

Section 702.181(c)

 as adopted provides that the RCRA or

UIC permit does not authorize any infringement of State or local

law or regulations, except for Parts

 724, 725 and 730.

 40 CFR

122.13(c) appears to give states the option of determining the

effect of permits on local law.

 Except as noted above, the

Board will follow the general Illinois approach of continued

application of all regulations and state laws

 (See Rule 208 of

Chapter

 7 and Landfill, Inc.

 v. Pollution Control Board

 (1978),

74 Ill. 2d 541,387 N.E. 2d 258).

Sections 702.183 et seq.

 Modification, Revocation and Minor

Modification

40 CFR 122.15, 122.16 and 122.17 provide procedures for

revocation and reissuance of permits by USEPA.

 The Agency

47-101

—8—

proposal modified the federal language on revocation to provide

for revocation only pursuant to a Board action.

 This is nec-

essary because the Board has exclusive authority to revoke

permits

 Section

 33(b) of the Illinois Act.

 The steel companies

oppose this,

 alth.ougk it is not clear how they could be preju-

diced.

 The Board will adopt the language as proposed by the

Agency.

PART 703

 RCRA PERMIT PROGRAM

The Board will adopt a RCRA permit program at some time

in the future.

 Part 703 will contain language corresponding

to Subpart B of 40 CFR 122.

 The Board has added language

stating that the Board has not adopted a RCRA permit program

and that references to Part 703 are inoperative.

Coinxnenters objected to adoption of any language relating

to the RCRA permit program at this time.

 In Parts

 702, 704,

705 and 730, the Board has generally adopted language in the

corresponding federal text which refers to the RCRA permit

rules.

 Notes have been added explaining that Part 703 will be

adopted later and a disclaimer has been placed in Part 702 and,

as noted above, in Part 703.

An alternative would be to edit out all references to the

RCRA rules.

 However, this would involve renumbering subsections

and writing bridging material to fill the gaps.

 On adoption of

the RCRA permit program it would be necessary to do a line-by-

line comparison with the federal text again, renumber subsections

again and strike the bridging material.

 This would be far more

effort than filling in blanks and removing the disclaimers.

It also avoids renumbering rules.

 The references to RCRA permit

rules will be subject to comment at the time they are readopted

without the notes.

47-102

—9—

PART 704~UIC PERMIT PROGRAM

Part .704 contains rules on UIC permit issuance.

 These

are derived from 40 CFR 122, Subpart C.

 Part 704

 is cumulative

with the general permit rules of Part 702.

 In the event of

conflict, Part 704 controls ~Sections 702.101(b) (1) (C)

and

704.101.

Section 704.106

 Classification of Injection Wells

Injection wells are classified as follows:

Class

I

 Hazardous waste wells, other than Class

IV,

and other disposal wells within 1/4 mile of

a USDW (Underground Source of Drinking Water)

Class II

 Injection for enhanced recovery of hydrocarbons

Class III

 Injection for extraction of minerals and for

in situ combustion of fossil fuel or recovery

of geothermal energy

Class IV

 Hazardous or radioactive waste wells within

1/4 mile of USDW

Class V

 Other wells

 (see Section 730.105)

Class II will be regulated by the Illinois Department of

Mines and Minerals

 (Section 730.121).

Existing Class

 I and III wells are authorized by rule

(Section 704.141).

 Existing Class IV wells other than those

injecting directly into a USDW are also authorized by rule

(Section 704.142).

 Permits will be required by notice from

the Agency over a five year period (Section 704.147).

 Class V

wells are authorized indefinitely

 (Section 704.146).

Existing Class IV wells injecting into a USDW are autho-

rized for six months

 (Section 704.145).

 An immediate permit

application is required.

Section 704.122 prohibits movement into USDW, although

Section 704.123 could be used to “exempt”

 an aquifer from the

definition of USDW.

Section 704.123

 Identification of USDW and Exempted Aquifers

The

ULC regulations provide procedures for designation of

 underground water which are subject to greater or lesser pro-

tection.

 The Agency may identify USDW’s which are subject to

greater protection.

 The Board may identify “exempted aquifers”

which are subjeOt to lesser protection.

47-103

—10--

As proposed, Section 704.123(a) was vague as to the

procedural steps to be followed by the Agency in identifying

USDW.

 The Board has added a reference to Section 702.106

governing

Agency

criteria.

Likewise,

the

Board

has

added

Section 704.123(b)

a

reference

Section

702.105

governing

rulemaking.

Identification

exempted

aquifers

will

rulemaking.

Section

704.141

seq.

Authorization

Rule

Section

704.147

allows

the

Agency

“require”

applications

from persons who have permits by rule.

 Section 704.161 requires

180 days notice.

Section 704.181 et seq.

 UIC Permit Conditions

The

Agency

proposal

requires

way

permit

condition

“performance

bonds

other

equivalent

form

financial

reassurance”

(Section

704,189),

There

similar

language

relating to variances in Section 36(b)

 of the Act.

 In the past

the Agency has construed Section 36(b)

 as limited to performance

bonds

with

corporate

 surety.

 Experience has shown that such

bonds are not available

 at any price.

The

Board

has

therefore

provided a list of alternative

 forms of security which may be

provided

with

bond.

Section

704.192

Waiver

of

Requirements

Agency

Section 704.192(a)

 allows

the

Agency

authorize

wells

with

less

stringent

conditions

than

required

 by Part 730 and

Sections 704.182 through 704.191 when injection does not occur

into, through or above a USDW.

 Section 704.192(b)

 allows

a

similar relaxation when the “radius of endangering influence”

is smaller or equal to the radius of the well.

 This language

reflects a recent amendment to 40 CFR 122.43

 (Federal Register,

 February 3,

 1982),

The radius of endangering influence is calculated under

Section 730.106(a).

 This is a pressure-based formula.

The

small radius would occur for injection into a very permeable

formation under low pressure.

Section 704.201 et seq.

 Hazardous Waste Wells

Subpart F applies to generators of hazardous waste using

injection wells and to HWM (Hazardous Waste Management site)

owners and operators using injection wells for manifested

hazardous waste.

 This raises questions

 as to the relationship

the

Phase

and

RCRA

operating

standards

and

permit

requirement.

Section 725.101(b) (2)

 provides that the interim status

standards do not apply to UIC wells and associated storage

47-104

and

treatment

 facilities.

 40 .CFR 264,1(d),

which

will

adopted

the

Board

 as Section 724.101(d), provides that

the

final

operating

 standards will apply

part

after

termin-

ation

 of authorization of injection by rule.

 Section 702.203

contains a listing of portions of Part 724 which will apply.

The Agency proposal listed

expected

 section numbers in

Part 724.

 However, Section 704.203 may become fully effective

and applicable to some well before the Board adopts

Part

724.

The Board has therefore replaced these with references to the

corresponding sections in

40

CFR 264.

The federal regulations defining the scope

 of the RCRA

permit

requirement

 appear to require a RCRA permit for associated

storage

and

treatment

facilities

 (40 CFR

122.21(d)

(1) (i).

However,

the

operator

has

a

“RCRA

 permit

rule”

for

the

well

itself

CFR

122.26(b),

PART 705

AUTHORITY FOR PART 705

Part

705

specifies

 procedures

which

the

Agency

must

reviewing

 applications for RCRA and

UIC

permits.

This

similar

Subpart

 of Part 309 of

Subtitle

Water

Pollu-

tion,

which

specifies

 Agency procedures

for

NPDES

permit

issuance,

Agency procedures are to be distinguished from Board

procedures

which

are

 to be followed on

appeal

Agency

permit

decision,

 Part 705 contains

provisions

which

lead

into

the Board’s Procedural Rules

 (Sections 705.101, 705.183,

705.202 and 705,212),

Agency procedures are generally substantive

regulations

from the Board’s perspective.

 They are adopted pursuant to

Sections

13

and

 27 of the Act rather than Section 26 which

authorizes Board procedural rules.

 not necessary for the Board to make

 a precise divi-

sion

authority

 between itself

and

 the Agency

Part

705.

Section

13(c)

the

 Act requires the

Board

adopt

regulations

identical

substance

 with federal

regulations

implementing

the

federal

SDWA

Act,

 Part 705 is

identical

substance

with

CFR

124

and

hence

 has a

statutory

basis

apart

from

the

general

grants

authority

the

Board

and

Agency.

47-

105

-12—

ADMINISTRATIVE.

PROCEDURE

ACT

P.A.

 82-380 exempts. the Board from compliance with

Section

 5 of the

APA

 in adopting rules pursuant to RCRA or

SDWA.

 However,

 there is no express mention of the applica-

bility of the

APA

contested case provisions to Agency procedures

in issuing permits.

 This depends on whether the Agency had

“existing procedures

 on July 1,

 1977”

 (Section

 2 of the APA).

If not,

 a second question arises

 as to whether the “licensing”

is required by law to be preceded by notice and an opportunity

for hearing

 Section

 16 (a)

 of the

APA

 (Borg Warner v

 IEPA,

3rd District, October 8,

 1981).

 The answers to these questions

are somewhat different for UIC and RCRA permits.

The Agency proposal stated expressly that the contested

case provisions of the

APA

were applicable

 (Section 702.105).

However, these regulations are intended to be applicable both

to RCRA and UIC permits.

 Since the result appears to be

different for each permit, the Board has deleted the references

to the APA.

 This will avoid

any

unintended

impact

the

status

the

RCRA

permit

with

respect

 to the APA.

NATURE OF AGENCY HEARING

The Agency proposal lacked a section corresponding to

40 CFR 124.1.

 The Board has added a general introduction

which,

 among other things, differentiates Board and Agency

procedures.

Section 705.101(c)

 addresses the nature of the Agency

and Board hearings.

 There is

 a question

 as to whether the

Agency hearing is to be informational or adjudicatory.

The purpose of the public hearing and comment period are

to obtain input from the applicant

and

 public, either leading

to review of the tentative decision or framing the issues

for

a later adjudicatory hearing on appeal to the Board.

 Thus,

if the applicant wishes to contest the truth of a fact relied

upon in a denial letter or

statement

basis

 condition,

he need only outline his position at the Agency hearing or

during the comment period.

 Likewise, members of the public

 who oppose issuance of a

permit

need

only

outline

their

posi-

tion,

raising

 all issues as provided in Section 705.183.

The history and wording of Section 39 clearly indicate

that it is also an informational hearing:

 among other things,

the Section 39 hearing must be held only “prior to issuance”,

not denial.

 It is not the adjudicatory hearing referred to

by the APA that must be held before the applicant’s rights are

47-106

—13—

cut off.

 As noted below,

 the Board has effectuated Section

 39(e)

of P.A.

 82-380 by adding

 a requirement that

the

Agency

conduct

a Section 705.182 hearing before issuing a

RCRA

perinit.*

The Board’s role is primarily appellate review of the

Agency’s action in issuing or denying a permit,

 In third party

appeals, Section 40(b)

 of the Act specifically limits the Board

to consideration of the record which was before the Agency.

In

appeals by the applicant, the Board has long held that Section

40(a)

 requires

 a similar restriction

 (Oscar Mayer

 & Co.

v.

 IEPA,

PCB 78—14,

 30 PCB 397).

 This is fully consistent with Section

705.183 which imposes an obligation to raise issues during the

 Agency proceeding.

The Board has provided an up-front reference to Section

705.183 in order to avoid

future

 recurrence of recent cases

in

which landfill opponents have ignored Agency proceedings and

then attempted to introduce evidence at a Board hearing.

OUTLINE OF PROCEDURES

Initial permit issuance or renewal proceeds in five major

steps:

1.

 The application process,

 in which the completeness

of the application is determined;

2.

 The application review process,

 in which the Agency

makes a tentative decision to grant or deny the permit;

3.

 The public comment process, in which the Agency receives

input from

the

applicant

 and public, and possibly

returns to the application review stage;

4.

 Permit issuance or denial;

5.

 Board review, if an appeal is

 filed.

Permit modification feeds into steps

1,

2,

 4 or 5.

 A detailed

discussion appears below in connection with Section 705.128.

*P.A.

 82-380 continued the Section 39 public hearing require-

ment, amending it to specify a public hearing before a “RCRA

permit” is issued.

 However, Section 39 was also amended by P.A.

82-682.

 This deleted

the

 Section 39 public hearing, establishing

an extensive procedure before the County Board.

 It is likely

 that the legislature intended to remove the Section 39(e)

 public

hearing.

 However the Board will assume the contrary until the

legislation is reconciled.

47-107

—14—

Section 705.121 et seq.

 ~ermit Applications

The

 application process is initiated by the filing of an

application (SeOtions 705.121

and

 704.101).

 The Agency first

reviews it for completeness

 (Section 705.122).

 If it is com-

plete, the Agency gives notice of a complete application and,

for major facilities, prepares a decision schedule (Sections

705.125

and

 705.126)

Section 39(e)

 of the Act as amended by PA.

 82—380 requires

certain public notice of “receipt of a request for a permit or

supplemental permit for a refuse disposal facility.”*

 A UIC

facility could be construed as a “refuse disposal facility”.

Although it may be possible to give this language

 a more limited

construction, the Board has added to Section 705.125

 a require-

ment of full public notice of all applications pursuant to

Section 705.161(a) (1),

If the application is incomplete, the Agency gives notice

specifying a date for more information

 (Section 705.122).

If

more information is received,

 the Agency again reviews for

completeness.

 If none is received by the date specified, the

Agency gives public notice and proceeds with application review

on the basis of the incomplete application

 (Section 705.123).

public

notice

requirement

has

been

added

insure

compliance

with Section 39(e).

 The applicant is not entitled to a decision

schedule or notice if the incomplete application is reviewed.

Section 705.128

 Modification or Revocation

Modification is different from the regular application

process, although the Agency may require an application to be

filed.

 Modification may be initiated by the applicant through

a request to modify or by the Agency through a review of its

files

 Section

 705.128(a).

 Minor modifications,

 as defined in

Section 702.187, result immediately in a modified permit

Section

 705.128(c).

 Notice of issuance of the

 (minor)

modified permit must be given and it is subject to Board review

in the same manner as all permits

 (Sections 705.201 and 705.212).

The Board has added to Section 705.128(c) (3)

 a provision requir-

ing a statement of reasons for a minor modification.

If the Agency determines that the modification would not be

minor, it must make a tentative decision on whether to modify

Section

 705..128(c)(1).

 It may give notice of a summary

refusal to modify

 Section

 705.128(b),

 or it may make a tenta-

tive decision to modify.

*As noted above, Section 39(e) may have been repealed by

P.A.

 82—682.

47-108

--15—

Section 705.128(b)

 follows 40 CFR 124,5(b)

which

contains

provisions for

informal

appeal

the

Administrator

USEPA

and judicial review of summary refusal to modify.

 The Agency

proposal omitted any reference to appeal of this.

 A sentence

has been added providing for appeal to the Board.

 Summary

refusal to modify is to be distinguished from Board review of

minor modification, or a permit or denial following full

Agency

review of the request to modify,

 These are discussed below.

Once the Agency tentatively decides to modify,

 it must

review its files and the request to determine whether more

information is needed

 Section

 705,128(c) (1).

 If it has

adequate information, it should prepare

 a draft permit; other-

wise it may request more

information.

This

 leads into the

application process, although the Board does not intend to

require

full

application

 all cases.

The

Board

has

 added to Section 705.128(c)

(1)

requirement

that the Agency give public notice before preparing a draft

permit in response to a request to modify.

 Otherwise,

the

Agency

would

acting

what

may

application

for

which

public

notice

may

not

have

been

given

pursuant

Section

39(e)

of the Act.*

 The Board will not however require public notice

receipt

 of all requests to modify:

 the Agency will be

allowed to make minor modifications, to refuse to modify or

to request more information without giving public notice of

receipt of an application,

Revocation of permits may be sought only through an

enforcement action filed with the Board Section

 705.128(d).

Section 705.141 et seq,

 Application Review

After reviewing the application, the Agency makes

 a tenta-

tive decision to prepare either a draft permit or

 a notice of

intent to deny

 (Section 705,141),

 In either case

 it prepares

a fact sheet for major facilities or

 if there is widespread

public interest

 (Section 705,143),

 or a shorter statement of

basis in all other cases

 (Section 705,142),

 The administrative

record is prepared supporting the tentative decision

 (Section

705.144).

 Public notice is given initiating the public comment

period.

Section 705.141(b)

 contains

 a sentence to the effect that

the Agency may withdraw a notice of intent to deny if its final

decision is to reverse its tentative decision to deny.

 This

really belongs in Section 705.184.

 A cross reference has been

added in that Section,

*As noted above, Section

 39(e)

 may have been repealed by

P.A.

 82—682.

47-109

—16—

Section 705.161 et seq.

 Public Notice

Public notice must be given when an application is received,

after

the

 Agency makes a tentative decision to grant or deny,

and when a hearing is scheduled,

 Other sections specify the

contents and identities of persons receiving public notice,

As noted above, Section 39(e)

 of the Act requires certain

public notice on receipt of an application.*

 The Board has

added Section 705,161(a) (1), requiring public notice when an

application is filed or when the Agency makes

 a tentative

decision to modify without requesting a new application.

The

Board has added the public officials listed in Section 39(e)

to the list in Section 705,l63(a)(5),

 This goes slightly beyond

Section 39(e)

 in that the listed officials will get notice of

other actions

 as well as the application and other people will

get notice of the application,

 This is arguably required by

reading Section 39(e)

 with 40 CFR 124.10(c).

Section 705.181 et seq.

 Public Comment Period

The public notice solicits comments and explains the pro-

cedures to request a hearing Section

 705.164(a)(5).

The

comment period is automatically extended if a public hearing is

scheduled,

The Agency may schedule a public hearing before initiating

the comment period.

 It must do so under Section 39(e)

 of the

Act in the case of a hazardous waste disposal site

 Section

705.182(b).

 It must give public notice again if it schedules

a hearing after the comment period starts.

 Such a hearing is

to be scheduled if the Agency finds

 a significant degree of

public interest

 Section

 705,182(a).

Section 705.184 provides for reopening of the public comment

period.

 The Agency proposal, drawn from 40 CFR 124.14, did not

contain a full list of options available to the Agency.

 Section

705.184(b) has been added to reference Section 705.141(b)

 which

allows the Agency to reverse its tentative decision.

 This

results in a new draft permit or notice of intent to deny and

restarts the process from the application review phase.

Short of reversal, if the information submitted during the

public comment period raises “substantial new questions”, the

Agency can prepare a new draft permit, statement of basis,

 fact

sheet and/or reopen the comment period

 Section

 705.184 (a)

*As noted above, Section 39(e)

 may have been repealed by

P.A.

 82—682.

47-110

—17—

.40. .CF.R 124.14 also seems to require

the

 process to 1oop

until

the.

draft

permit

agrees

exactly

with

the

final

permit.

Rowever,

 40 CFR 124.l7(a)

 (1.) requires USEPA to specify which

provisions

 have been changed in the final permit decision.

Section

124.17(b)

allows

 USEPA to supplement the record to

respond

 to comments.

 Section 124.19(a) limits persons who

fail

file

 comments to an appeal

differences

between

the

draft

and

the

 final permit,

 These provisions have been

adopted

by the Board as Sections 705,210(a) (1)

 705,210(b)

 and 705.212(a).

These

 sections clearly contemplate that the Agency may modify

the

draft

without

 looping back.

 The Board

has

therefore

added

Section

705,184(c)

 to expressly state this alternative,

Thus

 a complete statement of the Agency’s alternatives

following the comment period are as follows:

 If the Agency is

persuaded to reverse its tentative

decision,

 must loop back

the

draft

permit/notice

intent

 to deny provisions of

Section 705.141.

 not,

 it decides whether the comments

raise “substantial new questions.”

 If so, it loops back to

a new draft permit, fact sheet, statement of basis, and/or

comment period.

 If not, it may still revise the draft in

response to comments and issue it as

 a final permit.

The federal regulations seem to allow an infinite loop.

There is

 a possibility that a decision period may be

imposed

on the Agency by new legislation or court decision.

 The Board

has

therefore

added

 Section 705,141(f) which

allows

the

Agency

issue

final

 permit decision based

such

record

before

the

 final

day

 allowed for action by any

applicable

statutory decision period,

As proposed, Section 705,182(b)

 specified a public

hearing

in the “geographical area”

 of the facility.

 This has been

changed to specify “county”,

as

required

 Section 39(e)

of

the

Act

 amended by P,A,

 82-380,

Section 705.201

 Final Action by Agency

As adopted, Section 705,201

 different from the Agency

proposal and

 40 CFR 124,15,

 Paragraph

 (a) has been modified

make

RCRA

and

UIC

permit

practice

fully

consistent

with

Section 39 of

the

Act,

 The final

sentence

 of 40 CFR 124.15 (a)

has been expanded into a full paragraph.

 The “final permit

decision” is either the issuance of a permit or a denial letter.

There is no possibility

 a “final decision” before one

document

or the other is mailed.

The

federal

 rules seem to contemplate a final

decision

within

USEPA

which

 further

review

may

had

before

issuance

of an actual permit

 (40 CFR 124, Appendix A).

 This

 is unworkable

the

Illinois

context.

 The Board must have an actual permit

or reasons for denial in order to review the

Agency’s

decision.

47~

111

—18—

The Board has further specified that the denial letter

include a statement of reasons similar to~th.atspecified in

Section 39(a)

 of the Act,

The provisions on effective date are essentially the same

as USEPA’s..

 An appeal generally stays the effective date of

the permit.

 The permittee is not generally entitled to take

any action in reliance on the permit before its effective date.

Section 705.201(d) (2)

 has been modified to reflect changes

in the provisions on stays which are discussed below.

 Section

705.201(d) (3)

 of the proposal has been deleted.

 This provided

an immediate effective date for permits if no comments

requested a change in the draft permit.

Section 705.202 et seq.

 Stays of Contested Permits

The provisions on stays have been modified to make them

fully consistent with Section 16(b)

 of the Administrative

Procedure Act, which provides:

When a licensee has made a timely and sufficient

 application for the renewal of a license or a new

license with reference to any activity of a con-

tinuing nature, the existing license shall continue

in full force and effect until the final agency

decision on the application has been made unless

a later date is fixed by order of a reviewing court.

Section 705.202 states the Board’s intention that the old

permit expire at the same time the new permit becomes effective.

The following are related rules on timing of applications and

continuation of permits,

permits

rule

and

interim

status:

40 CFR 122.22

 Part A and Part B RCRA permit

applications

Section 700.105(e)

 Termination of interim status

Section 702.125

 Continuation of expiring RCRA

and UIC permits

Section 704.147

 Requiring UIC permits for wells

authorized by rule

Sections 705.203 through 705.205 set out rules on stays

at length for new applications, reapplications and interim

status/permit by rule situations.

 It shou~.dbe noted that

“new” and “existing” facility are defined with respect to

November 19, 1980 for HWM facilities and with respect to the

date of UIC permit program approval for new injection wells

47-112

—19—

Section

 702.l10)~ There is thus

 a possibility of “new” HWN

facility which would be existing and

continuing

the

date

of RCRA approval.

 After both programs are running,

 it would

be possible to have

 a “new” facility or well with an expired

permit.

 These sections are somewhat complicated by

the

necessity of providing for these eventualities.

The provisions

 on stays may be summarized as follows:

those with interim status or permits by rule who file timely

applications

continue

under

the

interim

status

permit

rule conditions; those who file timely reapplications or

requests to modify comply with the old permit; new “new”

facilities and wells, existing ones which fail to file appli=

cations on time,

 and those who lost interim status or permits

rule

without

filing

 timely first

application

have

permit pending completion of Board review.

PART 730

 UIC OPERATING REQUIREMENTS

Part 730 contains the operating

standards

applicable

injection wells.

 These are derived from 40 CFR 146.

The

federal section number can be found

subtracting

584.100

and deleting all zeros to the immediate right

the

decimal

point.

Section 730.104

 Exempted Aquifers

This

contains

criteria

 by which the Board may move through

rulemaking to designate “exempted aquifers”.

 These are USDW

which are subject to a lesser degree of protection under the

rules

 (see Sections 704.101, 704.123 and 702.105)

Section 730.106

 Area of Review

A typographical error in the formula of Section

 730(a) (2)

has been corrected from the Agency proposal.

 The square root

of the entire expression is taken, rather than just the numera-

tor.

 To make it easier to

type,

the

Board

version

shows

this

as the square root of both

numerator

and

 denominator, rather

than the entire expression0

Section 730.108

 Mechanical Integrity

Section 730.108(a)

 defines mechanical integrity.

 This

involves a demonstration of no significant leak and no signifi-

cant fluid movement.

 As proposed, Section 730.108(b)

 requires

either

 two tests to demonstrate no significant leaks:

monitoring of annulus pressure; or,

 a pressure test with liquid

or gas.

Section

 730.108(c)

requires

either

temperature

or

noise log to demonstrate the absence of significant movement.

 Section 730.108(d)

 allows the Agency to approve other tests which

will reliably demonstrate mechanical integrity.

47-113

—20--

The Agency proposal allowed approval of other tests only

for

absence

significant

leaks,

not

for

fluid

movement.

CFR

146.8

allows

USEE’A

 to approve other tests for either.

The

Board construes this

typographical

error

the

proposal.

Alternative demonstrations will be allowed for either criterion

mechanical

integrity.

As worded the proposal appears to set an absolute require-

ment which may be adjusted by the Agency.

 The Board has modified

this to avoid any interpretation that the rule subdelegates

variance

authority.

 Paragraph

(a)

will

require

the

applicant

permittee

demonstrate

mechanical

integrity.

Paragraphs

(b)

and

 (c) will allow, but not require, the four tests.

Paragraph

 (d) will allow other tests at

the

Agency’s

discretion.

Section 730,109

 Permitting Priorities

Section 730,109(h)

 refers to expiration dates of existing

Illinois permits.

 The Board requires NPDES or state permits

under Part 309 of Subtitle C:

 Water Pollution.

 The Board

will propose to drop this permit

requirement

soon

UIC

permits

 become available,

Section

730.112

Construction

Requirements

proposed,

Section

730.112(c)

requires

packer

set

immediately above the injection zone, or an

approved

fluid

seal

alternative,

The

Agency

approve

alternatives

which

reliably

provide

comparable

level

protection

USDW’s.

proposed,

Section

730,112(c)

poses

problems

that

appears to allow Agency variances from Board requirements and

to allow the Agency to promulgate alternatives for general use.

The

Board

has

reworded

CFR

146,12(c)

accomplish

its

result within the Illinois system.

As modified, under Section 730.112(c)

 Class I wells will

be required to protect USDW’s.

 They may do this through a

packer.

The

Agency

may

approve

alternatives.

This

approach

sets

standard

 and one approved method of

meeting

the

standard.

The Agency

may

approve

other

methods

subject

the

limitations

stated.

This

Opinion

supports

the

Board’s

Order

this

date

adopting

Parts

702,

703,

704,

705

and

730,

arid

amending

Part 700.

47-114

—21—

I, Christan

 L. Moffett, Clerk of the Illinois Pollution

Control Board, he~re~ycertify tl~atthe above Opinion was

adopted on the

/.3~

day of

 1982 by a vote of

___________.

Illinois Polluti

 Board

47-115